author: WALKER, P.J.,

text:
    Barnhart v. Morton

      Christian Earl Eaby, for plaintiff.

      Kevin L. Connors, for defendant Jack H. Morton II.

      Gregory Hirtzel, for defendants Jack Morton Sr. and Mary Morton h/w.
    September 27, 2005
   WALKER, P.J.,

FACTUAL SUMMARY AND PROCEDURAL HISTORY

The plaintiff’s minor son died while working on a dairy farm owned and operated by the defendants. The defendants allegedly modified the drill the decedent was using and the electrical system in the bam. These modifications caused Timothy Sipes to be electrocuted and fatally injured. Following the accident, the plaintiff applied for workers’ compensation benefits in the form of death benefits for ambulance and emergency room expenses, as well as funeral/burial expenses. The plaintiff also applied for dependency benefits. The employer’s insurer recognized the injury as compensable and compensated the plaintiff for the expenses relating to the accident and burial, but denied her claim for dependency benefits on the basis that she failed to prove dependency.

The plaintiff alleges that the modifications to the tool and electrical system aggravated the injuries the decedent sustained. The plaintiff also alleges that her claims are not barred by the exclusivity clause of the Workers’ Compensation Act. The defendants filed several preliminary objections to the plaintiff’s amended complaint on December 27, 2004. The court addressed these preliminary objections in its opinion dated July 15, 2005; however, it appears that the court may have failed to address some of the defendants’ objections. Therefore, the court will now address whether the amended complaint should be dismissed in its entirety because of the exclusivity of the Workers’ Compensation Act.

DISCUSSION

The defendants allege that the amended complaint should be dismissed because it is barred by the exclusivity clause of the Workers’ Compensation Act (WCA). The plaintiff argues that the amended complaint should not be dismissed because her claims circumvent the exclusivity clause for the following reasons: (1) the defendants fraudulently misrepresented the safety of the workplace and/or failed to warn the decedent of the danger, which led to the decedent’s aggravated injuries, and (2) the plaintiff’s claims are not covered by the WCA.

The plaintiff argues that an exception to the exclusivity clause of the WCA exists where the employer’s fraudulent misrepresentation, or failure to warn, caused the employee’s injury to be worse than it would have been otherwise. Specifically, the plaintiff argues that, had the defendants not modified the tool and electrical system, her son would only have been injured rather than killed. The plaintiff relies on Martin v. Lancaster Battery Co. Inc., 530 Pa. 11, 606 A.2d 444 (1992) in support of her argument. In Martin, the court held that the employee, a worker in a lead factory, was not barred from bringing a common-law action against his employer when the employer withheld the results of the employee’s blood test results and intentionally altered those results because the employer’s fraudulent misrepresentation and failure to warn caused the employee to suffer aggravated injuries.

The court finds that the facts in Martin are quite different from the facts in this case; however, the court believes that the legal theory set forth in that case may still apply. The court acknowledges that everyone on the defendants’ premises, including the defendant Jack Morton II, used the drill and the barn’s electrical system, and that the defendants probably did not expect that someone would be electrocuted. However, after reviewing the pleadings, the court is not certain whether or not the decedent was informed that the modifications had been made, was told of the risk, accepted the risk, and was of legal age to accept the risk. Furthermore, the court believes that a jury could find that it was fraudulent to alter the drill and the electrical system in the bam if the defendants did not properly notify the employees. It is a typical societal expectation that when there is too much draw on a fuse, it will blow the fuse and protect the individual on the other end of the line. In fact, the law states that this safety mechanism is mandatory. Therefore, the court is denying the defendants’ preliminary objection concerning whether or not the WCA is the plaintiff’s sole remedy, and is allowing this issue to proceed to trial because the court does not find that the law says with certainty that no recovery is possible.

ORDER

September 27, 2005, after reviewing the record, the briefs of counsel, and the applicable law, the court hereby denies the defendants’ preliminary objection arguing that the plaintiff’s case should be dismissed in its entirety due to the exclusivity of the Workers’ Compensation Act.

The defendants must file an answer to the amended complaint.

      . The defendants allegedly modified the electric drill by cutting off the third prong of the plug’s electrical plug so that it could be plugged into two-prong outlets. The defendants allegedly modified the barn’s electrical system by placing pennies behind the fuses in the fuse box to override the safety fuses.

      . Def’s mem. of law in supp. of prelim, objections at 2.

      . In its earlier opinion, the court addressed: (1) whether the complaint alleged the requisite conduct needed to state a claim for punitive damages, (2) whether the plaintiff’s claim for negligent infliction of emotional distress is insufficient, and (3) whether the allegations concerning the defendants’ control over the property lack specificity. The court dismissed the count for punitive damages, dismissed the count for negligent infliction of emotional distress, and reserved ruling on the motion for a more specific pleading regarding whether Jack and Mary Morton had control over the property, tools, and electrical system until the plaintiff has had the opportunity to conduct discovery.


source: Caselaw Access Project

author: BLACK, J,

license: Public Domain

text:
    T-Mobile USA Inc. v. Zoning Hearing Board of the Township of Whitehall

      Catherine E. N. Durso, for appellant.

      F. Paul Laubner, for appellee.
    August 19, 2005
   BLACK, J,

This matter is before the court on the appeal of T-Mobile USAInc./Omnipoint Communications Enterprises LP from a decision of the Zoning Hearing Board of the Township of Whitehall denying its application for a special exception to construct a wireless communication facility on premises at 2480 Main Street, Whitehall, Lehigh County, Pennsylvania. T-Mobile also requested two variances, but this request became moot when the special exception was denied. T-Mobile contends that the board abused its discretion and committed an error of law in denying the special exception. For the reasons stated below, we affirm the board’s decision.

FACTS AND PROCEDURAL HISTORY

The property on which the proposed facility is to be located consists of 25.466 acres identified as 2480 Main Street, Whitehall, Lehigh County, Pennsylvania. The property is located in an I-Industrial Zoning District, and contains a number of large fuel storage tanks. Adjacent to the property are numerous residential structures.

The current owner of the property, Sunoco Partners Marketing and Terminals LP, has entered into a lease agreement with T-Mobile for T-Mobile to use 10,000 square feet of the 25.466-acre tract for the construction of a wireless communication facility. With Sunoco’s authorization, T-Mobile filed a zoning application on July 29, 2004, seeking approval of a special exception use for a wireless communication facility on the subject premises. T-Mobile also sought two variances to eliminate the requirements that the communication tower be painted and that the parking area and roadway be entirely paved.

The board conducted a hearing on December 21, 2004, at which representatives of T-Mobile and various objectors appeared. The evidence revealed that the proposed communication tower is to be a 120-foot freestanding monopole with antennae extending an additional three feet. The tower is to be made of galvanized steel and will be capable of supporting other antennae for future uses. The tower will be set back a minimum distance of 125 feet from neighboring properties. It will be enclosed within a fence compound, 50 feet by 50 feet in size, comprised of chainlink fencing topped with barbed wire. T-Mobile conducted a visual impact analysis and propagation analysis, as required by the ordinance, and produced these analyses to the board. Its representative testified that there were no alternative workable tower locations. The evidence also disclosed that the design of the tower meets industry standards and has not been objected to by the Federal Aviation Administration. Additionally, the radio frequency signal levels will be below the exposure limits established by the Federal Communications Commission.

Numerous individuals who own homes adjacent to, and in the immediate vicinity of, the subject premises appeared at the hearing as objectors. Their principal complaint was about the visual impact of the tower on their nearby homes. They also expressed concern over possible health dangers from the tower. Tom Yablonski, one of the objectors, stated, “Our big concern is the visual impact... I don’t think that blends in too well.” Other objectors offered similar testimony. George Atiyeh asked rhetorically, “Could you imagine this tower 125 feet up in the air, how it’s going to look sitting in my backyard?”

At the conclusion of the hearing, the board voted orally to deny T-Mobile’s application for a special exception. Because of this denial, the board never reached the variance requests. The board’s written decision was issued on January 5, 2005. In its decision the board stated that the testimony of the objectors was credible, and concluded:

“While the property is zoned Industrial, it is also in the immediate vicinity of numerous residential structures.... The board is of the opinion that the use is not in harmony with adjacent properties in the immediate area. In order to obtain a special exception use, the board must determine whether or not the use is consistent with surrounding zoning and uses and is not detrimental to the appropriate use of adjacent properly. In this regard, the board is also of the opinion that the use is not consistent with the surrounding zoning and uses in that the surrounding zoning and uses are residential. The board also finds that the location of this tower so close to surrounding residential use is definitely detrimental to the appropriate use of the surrounding residential structures, and for that reason, the special exception should not be granted.”

T-Mobile has filed a timely appeal from this decision.

DISCUSSION

The Whitehall Township Zoning Ordinance permits a wireless communication facility as a special exception use under section 10.3(c), provided that the proposed use meets the conditions enumerated in this section as well as the general requirements for all special exceptions in section 5.13 of the ordinance. One of the general requirements, set forth in section 5.13(4), is that

“the proposed use is not:
“(i) inconsistent with the surrounding zoning and uses; “(ii) detrimental to the appropriate use of adjacent property.”

The board concluded that the proposed use did not meet this requirement.

The parties did not present additional evidence to the court. Therefore, our scope of view is limited to determining whether the board committed an abuse of discretion or an error of law in reaching this conclusion. Limley v. Zoning Hearing Board of Port Vue Borough, 533 Pa. 340, 625 A.2d 54 (1993). An abuse of discretion can be found only if the board’s findings are not supported by substantial evidence, which means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 555, 462 A.2d 637, 640 (1983).

An applicant for a special exception use has the initial burden of establishing that the proposed use is in compliance with the specific requirements set forth in the ordinance for the special exception. If the applicant satisfies this initial burden, the burden then shifts to the objectors to establish that the allowance of the exception would be contrary to the “public health, safety and welfare.” Smith v. Zoning Hearing Board of Huntingdon Borough, 734 A.2d 55, 59 (Pa. Commw. 1999).

T-Mobile argues that the objectors failed to produce substantial evidence to support a finding that the proposed use is detrimental to the public health, safety and welfare. However, the board never made any such finding; nor was such a finding a necessary part of its decision. Instead, the board found that T-Mobile had failed to meet its initial burden, so that the “public health, safety and welfare” issue was never reached.

The board’s decision was based on testimony from the objectors that the proposed use was inconsistent with surrounding residential uses and was detrimental to the residential use of their adjacent properties. The board found this testimony credible and hence refused the special exception as failing to comply with section 5.13(4).

From our review of the record, we cannot find that the board committed an error of law or abused its discretion in reaching this conclusion. It was within the board’s authority to determine the credibility of the witnesses. This court cannot substitute its judgment for that of the board. East Torresdale Civic Association v. Zoning Board of Adjustment of Philadelphia County, 536 Pa. 322, 639 A.2d 446 (1994). The fact that the court may have made a different decision had it heard the evidence is not grounds for reversal. The question is whether there is adequate evidence to support the board’s findings. Everson v. Zoning Board of Adjustment, 395 Pa. 168, 149 A.2d 63 (1959); Allegheny West Civic Council Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 547 Pa. 163, 689 A.2d 225 (1997) (reversing lower court’s reversal of zoning board’s action).

In this case the evidence was more than sufficient to support the board’s findings that the proposed use was inconsistent with the surrounding residential uses and would be detrimental to these uses. The proximity of the tower to the neighboring residential properties is a matter of record. The testimony established that the 120-foot tower would have a substantial visual impact on these properties, interfering significantly with the residents’ enjoyment of their homes.

As a result of these findings, the board concluded that the proposed use did not qualify for a special exception under the ordinance. The board’s interpretation of the ordinance is entitled to great weight and deference from this court. Borough of Milton v. Densberger, 719 A.2d 829 (Pa. Commw. 1998); Johnston v. Upper Macungie Township, 162 Pa. Commw. 170, 638 A.2d 408 (1994). This principle is codified in 1 Pa.C.S. §1921(c)(8). The basis for this judicial deference is the knowledge and expertise that a zoning hearing board possesses to interpret the ordinance that it is charged with administering. Willits Woods Associates v. Zoning Board of Adjustment of City of Philadelphia, 138 Pa. Commw. 62, 587 A.2d 827 (1991). Our courts have consistently applied this principle of deference where a zoning appeal involves the board’s interpretation of certain provisions in the ordinance. East Allegheny Community Council v. Oncology-Hematology Associates, 783 A.2d 375, 378 (Pa. Commw. 2001) (zoning board’s interpretation entitled to great weight and will not be overturned except for cogent reasons); Pearson v. Zoning Hearing Board of Newlin Township, 765 A.2d 1187 (Pa. Commw. 2001) (board’s interpretation of undefined terms in zoning ordinance entitled to great weight).

A similar conclusion was reached in Amerikohl Mining Inc. v. Zoning Hearing Board of Wharton Township, 142 Pa. Commw. 249, 597 A.2d 219 (1991), where the Commonwealth Court upheld the denial of a special exception for a surface mining operation where the proximity of the mining operation was detrimental to nearby residences. The evidence of a detriment was more substantial in Amerikohl than here, but the principle is the same: Interference with the use and enjoyment of nearby properties is a valid basis for a zoning hearing board to refuse a special exception use.

For all of these reasons, we affirm the decision of the board denying a special exception to T-Mobile.

ORDER

Now, August 19, 2005, upon consideration of the appeal of T-Mobile USA Inc./Omnipoint Communications Enterprises LP, from the decision of the Zoning Hearing Board of the Township of Whitehall dated January 5, 2005, after a review of the record and the parties’ briefs and oral argument, for the reasons stated in the accompanying opinion, it is ordered that the appeal is denied and the decision of the Zoning Hearing Board is affirmed.

      . Notes of Testimony ofHearing 12/21/04 (N.T.), 42.

      .N.T. 55.

      . The board did not base its decision on a finding that there was a health hazard from the tower emissions. The evidence would not support any such finding, and the Federal Telecom Act, 47 U.S.C. §332(c), prohibits a municipality from denying a wireless communication facility on the basis of any such alleged health risks.


author: CULLEN, J,

text:
    U.S. Bank N.A.v. Detz

      Benjamin R. Bibler, for plaintiff.

      Suzanne Detz, pro se.
    August 11, 2005
   CULLEN, J,

Pending before the court is plaintiff’s motion for summary judgment on its complaint to recover from defendant the balance past due on an automobile lease agreement. For the reasons stated in this opinion, the motion will be granted.

PROCEDURAL AND FACTUAL BACKGROUND

On December 15, 1999, defendant, Suzanne Detz, entered into a written closed-end lease agreement to lease a 2000 Chevrolet Blazer. On October 8, 2004, plaintiff, U.S. BankN.A., filed a complaint alleging that defendant had defaulted under the terms of the lease agreement by failing to make payments as promised, and as a result owed plaintiff the sum of $10,600.48 together with interest and costs.

On November 12, 2004, defendant, acting pro se, filed an answer. Defendant failed to address the specific allegations of the complaint, but did state that the vehicle had mechanical defects which were not repaired despite six attempts. Specifically, she claimed that the vehicle’s lights would flicker or go off while driving and that the vehicle would sometimes stall in park.

As a result, and after unsuccessful attempts to obtain assistance under the Automobile Lemon Law, 73 P.S. §1951 et seq., defendant returned the vehicle on October 31, 2001. On January 4, 2005, plaintiff served a request for admissions and request for production of documents to which defendant failed to respond.

On April 11, 2005, plaintiff filed its motion for summary judgment. Plaintiff’s brief was filed May 16,2005. Defendant has failed to file any response to the motion.

On July 1,2005, plaintiff filed a praecipe asking that the motion be referred to the court for disposition.

DISCUSSION

According to Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, after the pleadings are closed any party may move for summary judgment where (1) there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) after completion of discovery, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury. Pa.R.C.P. 1035.2.

“A proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury.” McCarthy v. Dan Lepore & Sons Co. Inc., 724 A.2d 938, 940 (Pa. Super. 1998). (citation omitted) “If the non-moving party fails to come forward with sufficient evidence to establish or contest a material issue to the case, the moving party is entitled to judgment as a matter of law.” Id. (citing Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996)).

A material fact is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones Inc., 756 A.2d 697 (Pa. Super. 2000).

A 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.” Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992). (citation omitted)

The purpose of the summary judgment procedure is to pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). The court is to ignore controverted facts contained in the pleadings and restrict its consideration to material filed in support of and in opposition to the motion for summary judgment and the uncontroverted allegations of the pleadings. Id.; Washington Federal Savings and Loan Association v. Stein, 351 Pa. Super. 286, 515 A.2d 980 (1986).

Once a motion for summary judgment is made and properly supported, the opposing party cannot rest on the allegations or denials in the pleadings, but must file a response identifying evidence in the record controverting the evidence cited in support of the motion or establishing facts essential to the cause of action or defense which the motion cites as not having been produced. Pa.R.C.P. 1035.3; Rapagnani v. Judas Company, 736 A.2d 666 (Pa. Super. 1999).

Plaintiff argues that defendant, by failing to specifically deny any of the averments in the complaint and by failing to respond to discovery, is deemed to have admitted all of the essential facts of plaintiff’s cause of action.

Rule 1029 requires that a responsive pleading shall admit or deny each averment of fact in the preceding pleading or any part thereof to which it is responsive. Pa.R.C.P. 1029(a). The rule provides further that aver-merits in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. Pa.R.C.P. 1029(b).

Defendant’s answer violates the requirements of Rule 1029 of the Pennsylvania Rules of Civil Procedure by simply ignoring the averments of fact in the complaint. Under these circumstances, the facts in the complaint are deemed admitted.

Rule 4014(b) provides that requests for admission are deemed admitted unless the party to whom they are directed files an answer or objection within 30 days of service of the request. Pa.R.C.P. 4014(b). Defendant failed to respond to plaintiff’s requests for admission and, therefore, has admitted that she is in default under the lease for failing to make monthly payments, and that she has not submitted any written dispute as to the accuracy of payments on the agreement.

Accordingly, there are no disputed issues of material fact.

Further, Rule 1035.3(d) provides that summary judgment may be entered against a party who fails to respond to the motion. Pa.R.C.P. 1035.3(d).

Even if the court were to treat defendant’s answer as raising as new matter a claim that the vehicle was defective so as to entitle her to remedies under the Lemon Law, plaintiff would nonetheless be entitled to judgment in its favor.

In Ford Motor Credit Co. v. Dunsmore, 374 Pa. Super. 303, 542 A.2d 1033 (1988), the Superior Court held that the Lemon Law does not permit a purchaser of an allegedly defective automobile to discontinue making payments under the financing contract while pursuing Lemon Law remedies. The court stated:

“Although the Lemon Law was enacted to grant relief to purchasers of defective new automobiles, the law does not directly address the question of whether the purchaser of the defective new car has a continuing obligation to make payments for the car after the purchaser asserts a defect under the Lemon Law. We conclude that the Lemon Law does not permit the purchaser of a defective automobile to discontinue making payments under a financing contract while pursuing Lemon Law remedies....
“The Lemon Law contains no provision allowing the purchaser of an allegedly defective automobile to suspend making payments under a financing arrangement for the automobile. Rather, the law grants certain other remedies to a purchaser of a defective new motor vehicle. For example, the automobile manufacturer must repair or correct certain nonconformities. 73 RS. §1954 (Purdon 1987). If the manufacturer fails to repair or correct a nonconformity after a reasonable number of attempts (as defined elsewhere in the law), the manufacturer must, at the option of the purchaser, either replace the motor vehicle with a comparable motor vehicle of equal value, or accept return of the vehicle from the purchaser and refund to the purchaser the full purchase price, less certain allowances. 73 P.S. §1955 (Purdon 1987)____
“However, nothing in the statute allows a consumer to compromise the contractual rights of a creditor, be it a dealer-lender or a third-party financial institution, by refusing to pay for an automobile because of a claim against the manufacturer.” Id. at 305-306, 542 A.2d at 1035. (citations omitted) (footnote omitted)

Since the Automobile Lemon Law only provides a consumer recourse against the manufacturer of a defective vehicle, and not against a creditor or other third party, the court finds that defendant has failed to raise or provide evidence to support a valid defense for failing to make payments under the lease agreement.

The court, therefore, enters the following:

ORDER

And now, August 11, 2005, upon consideration of plaintiff’s motion for summary judgment, it is ordered that the motion is granted. Judgment is entered in favor of plaintiff, U.S. Bank N.A., and against defendant, Suzanne Detz, in the amount of $10,600.84 plus interest and costs.

      . In Brooks v. Ford Motor Co., 41 D.&C.3d 189 (1986), the Court of Common Pleas of Cumberland County held that under section 1952 of the Automobile Lemon Law, 73 P.S. §1952, a lessee with an option to purchase may be considered a “purchaser” under the Act. Paragraph 10 of the lease agreement gave defendant the option to purchase the vehicle for $2,948.14 at the end of the lease term. (Complaint, exhibit 1.) Subsequent to the signing of the lease agreement, the Automobile Lemon Law, 73 P.S. §1951 et seq., 1984, March 28, P.L. 150, no. 28; amended 2001, Dec. 13, P.L. 868, no. 94, was amended to include the purchasers and lessees of defective new motor vehicles.


author: PEREZOUS, J,

text:
    Shultz v. Leisure Lanes of Lancaster

      F. Carter Shultz and Elissa A. Shultz, pro se.

      Stephen E. Geduldig and Crystal H. Williamson, for defendant.
    June 23, 2005
   PEREZOUS, J,

Presently before the court is the motion for summary judgment filed by the defendant, Leisure Lanes of Lancaster Inc. Defendant contends that it is entitled to summary judgment in this matter based on the fact that the plaintiffs, F. Carter Shultz and Elissa A. Shultz, have failed to (1) appear for their properly noticed depositions, (2) present any evidence to sustain their burden of proof, and (3) present any evidence to show a disputed question of material fact. For the following reasons, this court grants the defendant’s motion.

This case arose from a trip and fall accident that occurred at a driving range operated by defendant. Plaintiffs alleged that, on July 8, 2001, the plaintiff-husband fell “when the golf mat he was standing on moved during his swing and/or when he slipped on water, which, unbeknownst to Mr. Shultz, had accumulated in and/or on the mat, making it dangerously slippery.” Plaintiffs further alleged that defendant was negligent in: maintaining a dangerous condition on its premises; failing to take reasonable measures to inspect the driving range’s golf mats to prevent any dangerous conditions; failing to timely repair and/or replace the golf mats; failing to warn of the dangerous condition on the premises; failing to maintain the mats in a dry and safe condition; and failing to take necessary precautions for the safety of the plaintiff and other invitees. The defendant responded to these allegations by denying all of the charges, noting that no unreasonably dangerous condition existed on the date alleged and that no act or omission on the part of defendant caused the plaintiff’s injuries.

By way of complaint, the plaintiffs instituted this action on April 21, 2003. Defendant responded by filing its answer with new matter. The parties have exchanged written discovery requests and responses. To date, only the deposition of the president of Leisure Lanes, Brad Leisure, has been taken. Although noticed a total of six times, plaintiffs never appeared for their depositions in this matter. Defendant states that its discovery is complete, and that plaintiffs have not evidenced any intent to undertake any further discovery. The defendant filed the present motion for summary judgment on January 20, 2005.

It is well settled in this Commonwealth that summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2. Under the Pennsylvania Rules of Civil Procedure there are two situations in which a summary judgment motion is permissible:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law:

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2(a).

Along with this standard, the rule also sets forth the requirements for a response to a motion for summary judgment:

“The adverse party may not rest upon the mere allegations or denials of the pleadings, but must file a response within 30 days after service of the motion identifying
“(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
“(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Id.

In the present case, the defendant’s motion for summary judgment was served on plaintiffs on or about January 18, 2005. To date, plaintiffs have yet to respond to the motion. Furthermore, there is no evidence in the record proving that the defendant deviated in any way from his duty of reasonable care under the circumstances, as is necessary. Zito v. Merit Outlet Stores, 436 Pa. Super. 213, 217, 647 A.2d 573, 575 (1994). While the plaintiffs have arguably alleged facts which purport to establish a claim of negligence against the defendant, the allegations have no support in the record and plaintiffs cannot rest on the mere allegations of the pleadings. Consequently, this court must grant defendant’s motion for summary judgment.

Accordingly the court enters the following:

ORDER

And now, June 23, 2005, upon consideration of the motion for summary judgment filed by the defendant, Leisure Lanes of Lancaster Inc., together with the briefs and supporting papers filed, it is hereby ordered that the motion is granted and judgment is entered in favor of defendant and against the plaintiff.


author: BUCCI, J.,

text:
    Commonwealth v. Group Two Properties Inc.

      Heather A. Castellino, deputy attorney general, for Commonwealth.

      David A. Richman, for defendants Snyder and Group Two Properties Inc.

      Lawrence J. Hracho, for defendant Smith.

      Emmanuel H. Dimitriou, for defendant Gerber.
    June 21, 2005
   BUCCI, J.,

This case commenced on December 22, 2003, when the attorney general’s office charged each of the above-listed defendants with two counts of operating a hazardous waste storage, treatment or disposal facility without a permit from the Department of Environmental Protection (DEP) in violation of 35 Pa.C.S. §6018.401(a). The defendants filed an omnibus pretrial motion for relief nunc pro tunc, which included a motion in limine to exclude the evidence of scientific testing on environmental samples, and a hearing on this motion was held before this court, beginning on September 29, 2004, and continuing on March 28, 2005. This court ultimately granted the defendants’ motion, and it is from this order that the Commonwealth now appeals.

At the court’s direction and on behalf of the Commonwealth, the attorney general’s office filed a concise statement of matters complained of on appeal pursuant to 42 Pa.C.S. § 1925(b). In this concise statement, the sole issue raised on appeal is whether the court erred in granting the defendants’ motion to exclude said evidence at trial. As a preliminary matter, the court notes that the Commonwealth’s appeal is permissible under Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992), which allows for the appeal of a motion in limine where the Commonwealth certifies that the court’s ruling “had the effect of terminating or substantially handicapping the prosecution.” Commonwealth v. Deans, 530 Pa. 514, 517, 610 A.2d 32, 33 (1992).

MOTION TO EXCLUDE EVIDENCE

Following the two-part hearing, findings of fact and conclusions of law were made part of the record, and we hereby incorporate those findings and conclusions into this opinion, attached hereto as “exhibit A” [not published herein], and further supplement them as follows:

It is alleged that the defendants directed others to bury hazardous materials on certain property then owned by Group Two Properties, formerly owned by Reading Industrial Scrap Inc. (the RISCO site). Between August 21 and 26 of 2002, agents of the Office of the Attorney General and of the DEP executed a search warrant at the RISCO site, and as part of this search, material was removed from the site. Tests were performed on samples of this excavated material, and the test results allegedly show that the site, or portions of the site, contained higher than permissible concentrations of lead and silver. These samples were taken during an ongoing criminal investigation. During the pending criminal investigation, but prior to the formal filing of charges, the DEP disposed of the samples taken from the site, thus rendering them unavailable for the defendants to conduct their own independent testing. To further complicate matters, prior to the charges being filed, the DEP began to remediate the site, so that it was impossible for the defendants to obtain their own samples after they were charged.

In granting the defendant’s motion, the court considered two issues: first, whether the defendant’s due process rights were violated by the unavailability of the actual samples collected and tested by the DEP, rendering it impossible to attack the validity of those specific test results and, second, whether the fact that the defendants may have had the opportunity to conduct their own test results on different samples taken from the same site would remedy any due process violation.

The Pennsylvania Supreme Court, in Commonwealth v. Deans, held that the due process clause of the Fourteenth Amendment entitles the defendant in a criminal case an opportunity to conduct an expert examination of physical evidence that is critical to the issue of guilt. 530 Pa. 514, 610 A.2d 32 (1992). The court held that if the Commonwealth loses or discards the physical evidence without having given the defendant access to it, then it may not introduce expert testimony as to the test results. There is no dispute that the actual soil samples tested by the DEP have been destroyed and are therefore unavailable to the defendants. Additionally, counsel for the Commonwealth conceded that it would have been impossible for the defendants to obtain their own samples after being charged, because by that point in time the DEP had already begun remediation at the site. For the same reason, it was impossible for the Commonwealth to provide the defendants with soil samples upon their request. At the hearing, counsel for the Commonwealth addressed this issue: “If you are saying why don’t we get a sample when we have a discovery request, it was too late. Remediation of the property was also in process. We started to clean up the property before the criminal charges were filed. It is impossible to get another sample on the same spot.” (NT, pretrial, 9/29/04, p. 16.) The situation is therefore akin to that in Deans, where “the prosecutor conducted an examination and is attempting to introduce the results of his examination as evidence against the defendant while denying to the defendant any possible benefit to be derived from an examination of the primary evidence in the case.” 530 Pa. at 519, 610 A.2d at 34.

The fact that the original samples are no longer in existence also distinguishes the case at bar from Commonwealth v. Arenella, 306 Pa. Super. 119, 452 A.2d 243 (1982), where the evidence at issue was still in existence and available for testing.

The Commonwealth relied on Trombetta at the hearing, but that case is also factually distinguishable. See California v. Trombetta, 467 U.S. 479 (1984). Trombetta involves the results from a “breathalyzer” test, which both California and Pennsylvania courts have specifically held to be both precise and reliable. Id. at 489. This reliability was a substantial factor in the court’s conclusion that the evidence was not even potentially exculpatory. Ultimately, the court held that evidence need not be preserved unless (1) its exculpatory value is apparent prior to destruction and it is (2) “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonable available means.” 467 U.S. at 489. Results from breathalyzer tests showing that the defendant has a blood alcohol level above the legal limit are not even potentially exculpatory due to the extremely high degree of reliability. This is simply not true of the testing performed in the case at bar. According to the testimony by both parties at the pretrial hearing, there is actually a high degree of variability associated with TCLP testing. (NT, pretrial, 9/29/ 04, pp. 71-72; NT, pretrial, 3/28/05, pp. 14-15.) Unlike the results from laboratory analyses of breath and blood for the presence of alcohol, results from analyses implementing TCLP methodology for characteristic toxicity lack precision and are not reproducible with great certainty. (NT, pretrial, 9/29/04 at 71-72.) TCLP methodology produces results that are subjective and much more likely to be inconsistent. As such, the introduction of expert evidence based upon the results of analyses implementing TCLP methodology by the Commonwealth would violate the defendants’ due process rights. See Deans at 521-22, 610 A.2d at 35.

There was evidence at part two of the hearing that the defendants had access to the site and further may have had their own testing done. (NT, pretrial, 3/28/05, pp. 30-31.) We submit that this does not remedy the due process violation in this particular case, both because of the nature of the samples and the type of testing performed. Unlike a blood alcohol test, which, in addition to being highly reliable, is also testing a homogeneous substance, here we have a large parcel of real property containing an incalculable variety of organic and man-made materials, some of which may present in one area and not present in others. Even if the defendants had access to the property and even if they were able to collect some of their own samples, the due process issues remain. Without the original samples, there is no way to challenge the tests done by the Commonwealth. The defense could theoretically gather thousands of samples from the RISCO site, and the test results from these samples would neither prove nor rebut the results of the DEP’s original tests. The fact that other samples may not have elevated levels of lead or silver does not mean that the samples tested by the Commonwealth did not, as there is no guarantee that hazardous materials would be uniformly present or absent throughout the site. Conversely, should additional testing by the defense yield similar results, this would not prove that the Commonwealth’s initial tests were accurate, but would only bolster them. In short, the purpose of splitting samples is not only to see if the results are consistent, but also to “test the test.” In holding that the trial court erred in allowing the Commonwealth to introduce the expert testimony, the Superior Court in Common wealth v. Dorsey, 266 Pa. Super. 442, 405 A.2d 516 (1979), cited in Arenella, supra at 123, 452 A.2d at 246, reasoned that “it is most ‘exceptional’ when the Commonwealth asks a defendant to accept the word of one of its witnesses.” The same reasoning applies here. The defendants should not have to rely on the results or the methodology employed by the prosecution’s witnesses, particularly where these test results form the entire basis for the Commonwealth’s case.

Thus, this court concluded that to allow evidence of the results of the Commonwealth’s tests, where the Commonwealth had destroyed the samples and had never made them available to the defendants, would be a violation of the defendants’ due process rights. Accordingly, we respectfully request that the Commonwealth’s appeal be denied.

      . Commonwealth v. Dorsey and Commonwealth v. Arenella were both decided under Rule 310, which placed much more stringent requirements on the defense to demonstrate “exceptional circumstances and compelling reasons” to obtain discovery in such matters. Under the current rule, Rule 305, the defendants would be entitled to even more in the way of pretrial discovery.


author: SUH, Member,

text:
    In re Barish

      Disciplinary Board Docket no. 50 D.B. 1996.
    June 10, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SUH, Member,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

On March 11, 2004, Kenneth S. Barish Jr. filed a petition for reinstatement to the bar of the Supreme Court of Pennsylvania. Petitioner was disbarred on consent by order of the Supreme Court dated May 30, 1996.

A reinstatement hearing was held on October 26, 2004, before Hearing Committee 4.10 comprised of Chair David S. Pollock, Esquire, and Members Joseph M. Gaydos Jr., Esquire, and David Paul Andrews, Esquire. Petitioner presented the testimony of two witnesses and testified on his own behalf.

The committee filed a report on February 18, 2005, finding that petitioner met his burden of proof as to the requirements for reinstatement and recommending that the petition for reinstatement be granted.

This matter was adjudicated by the Disciplinary Board at the meeting of March 16, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, Kenneth S. Barish Jr., was born in 1966 and was admitted to practice law in the Commonwealth of Pennsylvania in 1992. His current address is Threshing Bam, Cosford Grange, Warwickshire CV21 1HT, England.

(2) Upon being admitted to the bar, petitioner began practicing with Stanley Selkowitz, Esquire.

(3) Petitioner and Mr. Selkowitz operated their law practice from offices known as Selkowitz and Barish.

(4) Attorney Edward Weingart also practiced law from the same suite of offices during the time frame in question and was of counsel to Selkowitz and Barish.

(5) In November 1993, Mr. Weingart was retained by Suzanne Null and Donna Reed to handle the administration of the estate of Corinne C. Reed.

(6) On January 17, 1994, decedent’s real property was sold for a net amount of $74,271.26, which amount was held in escrow by a settlement agent pending court approval of payment of the funds to the estate.

(7) On or about April 28, 1994, petitioner received a check in the amount of $74,271.36 from the escrow agent, representing the proceeds from the sale of decedent’s real property, and deposited the proceeds into an Integra Bank checking account.

(8) Proceeds from the Reed estate were used to pay the law firm’s various operating expenses.

(9) Despite repeated inquiries by Ms. Null and Ms. Reed, petitioner denied receipt of the proceeds and further caused the estate to fall delinquent in the payment of inheritance taxes.

(10) After many months of repeated, intentional misrepresentations to Ms. Null and Ms. Reed, petitioner, as of December 22, 1995, was still entrusted with at least $65,830.01 on behalf of the estate.

(11) Petitioner admitted that he was responsible for misappropriation of funds from the estate in the amount of $65,830.01.

(12) By March 27,1996, petitioner and Mr. Weingart eventually paid to the estate the entirety of the proceeds then owing, with interest, in response to inquiries from Henry Rea Jr., Esquire, who had been retained as counsel for Ms. Null.

(13) By letter dated March 28, 1996, petitioner was informed by the Disciplinary Board that a complaint had been filed against him regarding the misconduct.

(14) Upon being notified of the complaint, petitioner resigned from the practice of law and was disbarred on consent by order of the Supreme Court dated May 30, 1996.

(15) Following his disbarment, petitioner was employed as a database technician at Aspen Systems Corporation. This employment lasted from November 1996 through November 1997.

(16) Petitioner left Aspen for a position with Healthcare Recoveries Inc., where he was employed as a claims examiner from December 1997 through April 2000.

(17) While employed by Healthcare Recoveries, petitioner underwent monthly training in the law of all 50 states, comprising insurance subrogation, auto insurance law and rights of recovery, ERISA reviews, federal pre-emption doctrines, and federal rights of recovery under ERISA.

(18) Petitioner began work for Marconi Communications Inc. in May of 2000, where he is currently employed as director of Contract Management.

(19) Petitioner’s job duties require him to act as a conduit between his company’s commercial negotiation department and the legal department. Petitioner does not engage in the practice of law.

(20) Petitioner’s superiors and colleagues are aware that petitioner has a law degree and is not currently licensed to practice law, but do not know that he is currently disbarred.

(21) Petitioner’s performance reviews with Marconi have been exemplary.

(22) Petitioner is currently enrolled in the legal master’s program at Warwick University in Great Britain, where he is pursuing an LLP in international law.

(23) During, and in connection with, his employment with Marconi, petitioner purchased and read several law books.

(24) Petitioner fulfilled his required Continuing Legal Education credits for reinstatement.

(25) Two character witnesses testified on petitioner’s behalf.

(26) Robert Jordan has known petitioner for four years in a professional and personal capacity. He is aware of petitioner’s disbarment and the reasons therefore. Mr. Jordan opined that respondent has a general reputation for truthfulness and honesty. If petitioner is reinstated, Mr. Jordan would not hesitate to use him as an attorney or refer a family member to him for legal representation.

(27) Clayton Morrow has been a licensed attorney since 1988 and has known petitioner since approximately 1992. He is aware of petitioner’s disbarment and the reasons therefore. Attorney Morrow has always considered petitioner to be honest and straightforward, and the misconduct was aberrational in nature. Attorney Morrow supports petitioner’s readmission to the bar and would not hesitate to refer clients to him, or work with him in a professional capacity.

(28) Three character letters were admitted into evidence in support of petitioner’s reinstatement. All three letters attested to petitioner’s honesty and integrity. Petitioner candidly advised the Hearing Committee that he never volunteered to these individuals that he had been disbarred; just that he was not currently licensed to practice law.

(29) Petitioner expressed sincere remorse for his misconduct. He did not offer excuses for the misconduct but stated that he felt it was an act of desperation.

(30) Petitioner currently lives in England due to a job transfer with Marconi Communications. He would like to be reinstated in the event that he decides to practice law when he returns to the United States.

III. CONCLUSIONS OF LAW

(1) The misconduct for which petitioner was disbarred is not so egregious as to preclude immediate consideration of his petition for reinstatement.

(2) Petitioner has demonstrated, with clear and convincing evidence, that he possesses the moral qualifications, competency and learning in the law necessary to practice law in the Commonwealth of Pennsylvania.

(3) Petitioner’s resumption of the practice of law will not be detrimental to the integrity and standing of the bar or administration of justice, nor subversive of the interests of the public.

IV. DISCUSSION

This matter comes before the Disciplinary Board on a petition for reinstatement filed by Kenneth S. Barish Jr. Petitioner was disbarred on consent by order of the Supreme Court dated May 30, 1996. Petitioner bears the burden of proof by clear and convincing evidence that he is qualified for readmission. Pa.R.D.E. 218(c) (3)(i).

Petitioner’s request for reinstatement following disbarment is initially governed by the standard set forth by the Supreme Court in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). As a threshold matter, the board must determine whether petitioner has demonstrated that his breach of trust was not so egregious that it precludes him from reinstatement.

Petitioner admitted to misappropriating approximately $65,000 from an estate. The monies were used to pay office bills and debts. These monies were eventually repaid to the estate with interest.

While certainly serious in nature, this misconduct is not so egregious as to preclude consideration of petitioner’s request for reinstatement. The board may look to several cases that enumerate a litany of acts as equally reprehensible as those involved in the instant matter. In re Perrone, 565 Pa. 563, 777 A.2d 413 (2001) (Attorney Perrone’s conviction of theft by deception, tampering with public records, securing execution of documents by deception, and unsworn falsification to authorities was not egregious enough to prohibit consideration of the reinstatement petition); In re Verlin, 551 Pa. 47, 731 A.2d 600 (1999) (Attorney Verlin’s conviction of criminal conspiracy, perjury, false swearing, and theft by deception was not so egregious to prohibit consideration of the reinstatement petition).

Having concluded that petitioner’s misconduct is not so egregious as to preclude reinstatement, the board must now determine whether petitioner has met his burden of proving, by clear and convincing evidence, that his resumption of the practice of law at this time would not have a detrimental impact on the integrity and standing of the bar, the administration of justice, or the public interest and that he has the moral qualifications, competency, and learning in the law required for admission to practice law in Pennsylvania. Pa.R.D.E. 218(c )(3)(i). In order to make this determination, the board “must consider the amount of time that has passed since [petitioner] was disbarred as well as his efforts at rehabilitation.” In re Verlin, 557 Pa. 47, 731 A.2d 600, 602 (1999).

Petitioner has been without a license to practice law for approximately nine years. Evaluation of petitioner’s disbarment period suggests that it was a time of successful qualitative rehabilitation, sufficient to dissipate the taint of his misconduct. During that time petitioner found non-legal employment, starting with a minimum wage job and working up to his current employment with Marconi Communications as director of Contract Management. Petitioner presently resides in England and attends Warwick University where he is enrolled in a legal master’s program. Petitioner has expressed remorse and shame for his actions and is working hard to put this grievous incident behind him.

Petitioner fulfilled his Continuing Legal Education requirements and has kept apprised of the law in different areas as part of his job training with his employment, particularly with Healthcare Recoveries, where he was a claims examiner. While petitioner is content with his employment status for the time being, and does not anticipate practicing law, he would like to be reinstated in order to keep his options open for the future.

Two character witnesses helped to establish that petitioner’s misconduct was an aberration and that petitioner would be an asset to the legal community if reinstated. Robert Jordan and Clayton Morrow both offered opinions as to petitioner’s good reputation for truthfulness and honesty, and support petitioner’s readmission to the bar of Pennsylvania.

Considering all of the above facts, the board is persuaded that petitioner has engaged in a qualitative period of rehabilitation during his disbarment. Petitioner has met his burden of proving that he has the moral qualifications, learning in the law and competency to practice law, and his resumption of the practice of law will not have a detrimental impact on the integrity and standing of the bar, the administration of justice or the public interest.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Kenneth S. Barish Jr., be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Member Robert E. J. Curran did not participate in the matter.

Board Members McLaughlin, Brown, Pietragallo and Nordenberg did not participate in the March 16, 2005 adjudication.

ORDER

And now, August 25,2005, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated June 10, 2005, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: NICKLEACH, P.J.,

text:
    Commonwealth v. Erdley

      Frederick L. John II, for Commonwealth.

      Joseph F Caruso, for defendant.
    March 23, 2005
   NICKLEACH, P.J.,

Before the court for disposition is defendant’s omnibus pretrial motion in the form of a motion to suppress. Defendant is charged with one count of driving under the influence of alcohol or controlled substances, 75 Pa.C.S. §3802 (c), and one count of driving on right side of roadway, 75 Pa.C.S. §3301(a), a summary offense. The court conducted an evidentiary hearing on January 26, 2005, at which time the parties agreed to submit the case on the basis of a transcript of proceedings before District Justice Martha Medich on July 21, 2004, and briefs from counsel.

FACTS

At the district justice hearing, the arresting officer, Patrolman Donald Blose of the Kittanning Police Department, testified as follows. He was patrolling in an unmarked police vehicle at 4:30 a.m. on Sunday, May 23, 2004. While traveling north in the 100 block of South Grant Avenue, Blose observed a Dodge truck backing out about five feet from its parking space in the County Seat Bar parking lot. The truck bumped the adjacent solid stone wall of the bar with its rear bumper.

Blose estimated that the vehicle was traveling at three to five miles per hour at the time it bumped into the wall. The officer was about 15 to 25 yards from the vehicle when he observed this incident and heard no impact from the bump. He did not observe any damage to the bumper or to the wall when he later examined them.

Blose turned his car around to initiate a traffic stop of the truck for violating 75 Pa.C.S. §3702 — Limitations on backing. The truck exited the parking lot and proceeded south on South Grant Avenue. At that point, Blose activated his vehicle’s blue and red lights to stop defendant’s truck. Blose followed the truck down Grant. The vehicle turned onto Jacob Street heading west. Blose observed the truck traveling in the eastbound lane of Jacob Street while heading west, a violation of 75 Pa.C.S. §3301(a).

The truck accelerated, turned south on South McKean Street and onto a dead-end road which served as a driveway. It stopped at the end of the driveway. The defendant exited the vehicle as Blose approached. He began to speak, saying he had messed up because he was trying to make it home to get to work. Blose said he could detect a strong odor of alcohol coming from the defendant’s breath as he spoke. He also noticed that the defendant was having difficulty standing as he was talking to the police and when he walked toward the back of the truck.

Blose arrested the defendant, placed him in the police vehicle, read him his chemical testing rights and transported him to Armstrong County Memorial Hospital for chemical testing. The defendant’s blood was drawn at 5:13 a.m. Testing revealed that the blood alcohol content was .188 percent.

At the preliminary hearing, Blose testified that he had stopped defendant’s vehicle for violating section 3702 of the Pennsylvania Vehicle Code regarding limitations on backing. However, the defendant was never charged with that violation.

DISCUSSION

The authority of a police officer to stop a vehicle for a suspected violation of the Motor Vehicle Code is governed by 75 Pa.C.S. §6308(b), which states:

“(b) Authority of police officer. — Whenever a police officer . . . has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purposes of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.”

The previous version of section 6308(b) used the language “articulable and reasonable grounds to suspect a violation of this title.” The new version of section 6308(b), which became effective Februaiy 1, 2004, appears to create a less stringent standard for making a lawful traffic stop. However, in view of the Pennsylvania Supreme Court’s ruling in Commonwealth v. Gleason, 567 Pa. 111, 117-22, 785 A.2d 983, 987-89 (2001), that the probable cause standard applies to traffic stops under the Fourth Amendment to the U.S. Constitution, regardless of whatever other statutory language authorizes such stops, it appears that probable cause continues to be the applicable standard and the court will apply that standard here.

In this case, defendant contends that the police officer lacked probable cause to stop him for violating section 3702 or any other section of the Vehicle Code at the time he turned on his lights to pull the defendant over. The court agrees.

Section 3101(a) of the Vehicle Code states:

“(a) General rule. — Except as provided in subsection (b), the provisions of this part relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except where a different place is specifically referred to in a particular provision.
“(b) Serious traffic offenses. — The provisions of section 3345 (relating to meeting or overtaking school bus), subchapter B of chapter 37 (relating to serious traffic offenses) and chapter 38 (relating to driving after imbibing alcohol or utilizing drugs) shall apply upon highways and trafficways throughout this Commonwealth. 75 Pa.C.S. §3101. (emphasis added)

The County Seat Bar parking lot is a “trafficway.” It is clearly not a “highway.” Police are not authorized to make a traffic stop for a backing violation unless this violation occurs on a “highway.” 75 Pa.C.S. §3101. Therefore, Patrolman Blose lacked the authority to stop defendant’s vehicle at the time he first turned on his lights to pull the defendant over. Even if Blose had intended to cite defendant for careless driving, he still would have lacked the requisite authority to stop defendant, because, like limitations on backing, careless driving is a summary offense contained in subchapter A of chapter 37. See 75 Pa.C.S. §3714, careless driving.

As the Commonwealth has not met its burden of showing that it had probable cause to make the initial stop of defendant, defendant’s motion to suppress is granted.

An appropriate order will be entered.

ORDER

And now, March 23, 2005, upon consideration of defendant’s omnibus pretrial motion in the nature of a motion to suppress, it is ordered, adjudged and decreed that said motion be and is hereby granted. It is further ordered, adjudged and decreed that all evidence obtained as a result of the illegal stop be and hereby is suppressed.

      . Section 3702 states in pertinent part, “No driver shall back a vehicle unless the movement can be made with safety and without interfering with other traffic and then only after yielding the right-of-way to moving traffic and pedestrians.” 75 Pa.C.S. §3702(a).

      . Section 102 defines “highway” as “[t]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the public for purposes of vehicular travel.” 75 Pa.C.S. § 102. (emphasis added)

      . Section 102 defines “trafficway” as “[t]he entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.'''' 75 Pa.C.S. §102. (emphasis added)

      . See Commonwealth v. Cozzone, 406 Pa. Super. 42,593 A.2d 860 (1991), rearg. denied, July 30,1991 (condominium parking lot to which public access was not restricted was a “trafficway”); Commonwealth v. Proctor, 425 Pa. Super. 527, 625 A.2d 1221 (1993), appeal denied, 535 Pa. 661, 634 A.2d 223 (1993) (parking lot of shopping mall open to public was “trafficway” for purposes of DUI arrest).

      . Under the foregoing analysis, it is doubtful that Officer Blose, given what he saw in the parking lot, even possessed reasonable suspicion that the Vehicle Code was being violated. 75 Pa.C.S. §6308(b).


author: MOTTO, P.J.,

text:
    McConnell v. Bara

      Robert B. Womer, for plaintiff.

      Louis Pomerico, for defendant Bara.

      Michael K. English, for defendant GPU.
    March 22, 2005
   MOTTO, P.J.,

Before the court are plaintiff’s preliminary objections to counterclaim of defendant Sankovich. The issue dispositive of this matter is whether the counterclaim of the owner of a dune buggy, alleging the passenger of a dune buggy was involved in a common enterprise with the driver, sets forth a cause of action against the passenger for damages to the dune buggy pursuant to section 876 of the Restatement (Second) of Torts.

Plaintiff McConnell filed a complaint alleging causes of action in negligence against defendants Bara and Sankovich. The complaint alleged that plaintiff was injured on June 30, 2001, when the dune buggy made by defendant Sankovich, in which plaintiff was a passenger, was driven off the road by defendant Bara and struck a utility pole.

Defendant Sankovich filed a counterclaim alleging that plaintiff, a passenger in the dune buggy, and defendant Bara, the driver of the dune buggy, were engaged in a common enterprise when the dune buggy was wrecked and damaged. The counterclaim asserted that plaintiff, as a member of a common enterprise or common undertaking, was vicariously liable for any negligent action of defendant Bara that resulted in damage to the dune buggy; and that defendant Bara was negligent in operating the dune buggy in a careless manner, driving it into an obstacle, and operating while his abilities were impaired.

The Restatement (Second) of Torts §876 sets forth the basis to proceed with a claim of common enterprise. Section 876 is as follows:

“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he: (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.” Restatement (Second) of Torts, §876 (1977).

The Pennsylvania appellate courts have not expressly adopted section 876 of the Restatement. However, at least three appellate cases have addressed whether a cause of action pursuant to section 876 was stated, with the decision either being without a majority, or being dicta as to the issue of adoption, or finding no cause of action stated without deciding the issue of adoption. See Goldberg v. Delta Tau Delta v. Goldberg, 418 Pa. Super. 207, 215-16, 613 A.2d 1250, 1254-55 (1992), allocatur denied, 534 Pa. 639, 626 A.2d 1158 (1993) and Jefferis v. Commonwealth, 371 Pa. Super. 12, 18-19, 537 A.2d 355, 358-59 (1988). The court here finds that section 876 has received sufficient analysis from the Pennsylvania appellate courts that an analysis of whether the allegations of the counterclaim are sufficient to invoke section 876 should be undertaken.

Those jurisdictions which have permitted a cause of action under section 876(b) of the Restatement did so where the plaintiff pled or proved facts which clearly demonstrated, that the passenger actively encouraged the driver to commit the tortious conduct. Welc v. Porter, 450 Pa. Super. 112, 122, 675 A.2d 334, 338 (1996). See e.g., Cobb v. Indian Springs Inc., 258 Ark. 9, 17, 522 S.W.2d 383, 387 (1975) (substantial encouragement or assistance in the driver’s tortious conduct could be found where the defendant was respected as an authority figure by the minor driver and he encouraged him to demonstrate the vehicle’s performance ability); Sanke v. Bechina, 216 Ill. App. 3d at 964-65, 971, 576 N.E.2d at 1214-15, 1218 (passenger’s encouragement that driver ignore a stop sign and exceed the posted speed limit fell squarely within the conduct contemplated by section 876); Price v. Halstead, 177 W. Va. at 600, 355 S.E.2d at 389 (passenger’s conduct substantially assisted or encouraged the driver’s continued use of alcohol and drugs by providing these substances to him while he drove the vehicle). However, liability has not been imposed in those jurisdictions pursuant to section 876(b) of the Restatement (Second) of Torts where it was established that the passenger did nothing to substantially assist or encourage the driver in his voluntary consumption of alcohol and operation of the vehicle while intoxicated. Id. See e.g., Cully v. Bianca, 186 Cal. App. 3d 1172, 1178, 231 Cal. Rptr. 279, 282-83 (1986) (other than passengers’ accompaniment of driver after they obtained and drank tequila, the plaintiff pointed to no facts indicating that the passengers gave substantial assistance and encouragement to the driver); Stock v. Fife, 13 Mass. App. 75, 82, 430 N.E.2d 845, 849-50, review denied, 385 Mass. 1103, 441 N.E.2d 1043 (1982) (facts did not permit recovery under section 876 where there was no showing that the passengers forced, pressured, or induced the driver to drink); Olson v. Ische, 343 N.W.2d at 289 (the kind of substantial encouragement needed to impose liability under section 876 was not present where the driver and passenger each drank voluntarily and the passenger accompanied the driver on his trip); Lind v. Slowinski, 450 N.W.2d at 357 (passengers did not give substantial assistance and encouragement to the driver where the passengers’ and driver’s consumption of alcohol was entirely voluntary); Cecil v. Harden, 575 S.W.2d at 272-73 (passenger’s conduct in voluntarily consuming alcohol with the driver and in acquiescing in the driver’s decision to drive his own car fell far short of the substantial encouragement and assistance required to justify liability under section 876). See also, Clayton v. McCullough, 448 Pa. Super. 126, 131, 670 A.2d 710, 713 (1996) (no recovery was possible under section 876 where there were no factual averments indicating that the passenger gave substantial assistance or encouragement to the driver to engage in tortious conduct).

The Welc court went on to state that according to the language of section 876(b) as well as the authorities which have applied it, it is clear that an individual who is a passenger of a vehicle operated by a driver who has ingested alcohol voluntarily cannot be held responsible for the driver’s negligent conduct. “Rather, liability can only be imposed where a plaintiff avers sufficient facts indicating that the passenger substantially assisted or encouraged the driver’s tortious conduct.” Welc, 450 Pa. Super. at 122, 675 A.2d at 338.

In the case sub judice, the counterclaim does not aver that that the passenger engaged in any conduct that substantially assisted or encouraged the driver to consume alcohol and operate the dune buggy in a negligent manner. Therefore, a claim has not been adequately presented which would permit recovery pursuant to section 876(b).

It is also apparent that a claim pursuant to section 876(a) and/or (c) has not been presented. In order to establish a claim under section 876(a) of the Restatement, it must be shown that the driver and passenger acted in concert, i.e., that they acted in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. Id. Here, the counterclaim alleges that both parties voluntarily drank alcohol and that the driver operated the dune buggy in a negligent manner. These facts, if proven, are insufficient to allow the inference or finding that the driver and passenger acted in concert, or that they acted in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result in the doing of a tortious act.

Further, in regard to section 876(c), the counterclaim does not allege facts from which it could be inferred that Mr. McConnell provided substantial assistance to the driver in accomplishing the tortious result and that his own conduct, separately considered, constituted a breach of duty to the third party. Therefore, a claim under section 876(c) has not been properly established.

Defendant Sankovich has failed to specifically allege in what manner plaintiff acted in concert with or provided substantial assistance or encouragement to defendant Bara in his alleged negligent operation of the dune buggy or any other facts which could invoke any subsection of section 876 of the Restatement. However, since the court cannot at this juncture determine that it is impossible for defendant to allege a cause of action, the court will provide such defendant an opportunity to amend the counterclaim, if he can do so, to allege a cause of action pursuant to section 876 of the Restatement.

ORDER

And now, March 22, 2005, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the counterclaim of defendant Jared Sankovich against the plaintiff Russell McConnell is dismissed and the preliminary objections of plaintiff to such counterclaim are granted. However, defendant Jared Sankovich shall have 20 days from the date this order is docketed to file an amended counterclaim if defendant is able to allege facts sufficient to state a cause of action in accordance with the foregoing opinion.


author: BELL, J.,

text:
    Bertovich v. Brownsville Hospital

      John Batchelder, for plaintiff.

      Paul J. Walsh III and Rodger L. Puz, for defendants.
    October 18, 2005
   BELL, J.,

Before the court is plaintiff’s petition requesting relief from judgment of non pros. On June 10, 2005, a judgment of non pros was entered against plaintiff for failure to file a certificate of merit, in violation of Pa.R.C.P. 1042.3. On June 22, 2005, plaintiff presented oral argument in support of her petition requesting relief from judgment of non pros, and defendants presented oral argument in opposition thereto. On September 15, 2005, plaintiff formally filed her petition requesting relief from judgment of non pros. Additionally, the court has reviewed the briefs submitted by the parties in support of their respective positions. For the reasons discussed below, plaintiff’s petition requesting relief from judgment of non pros will be denied.

Pennsylvania Rule of Civil Procedure 3051, entitled “Relief from judgment of non pros,” provides as follows:

“(a) Relief from a judgment of non pros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition.
“(b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that:
“(1) the petition is timely filed,
“(2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and
“(3) there is a meritorious cause of action.”

Although plaintiff’s petition was timely filed, she has failed to provide a reasonable explanation or legitimate excuse for her inactivity with regard to obtaining a certificate of merit. She has similarly failed to establish whether this is a meritorious cause of action.

An examination of the relevant case law reveals that the Pennsylvania Superior Court has determined occurrences such as the grave illness and passing of counsel’s mother to be a “reasonable explanation” for a plaintiff’s failure to file a certificate of merit, Almes v. Burket, 881 A.2d 861 (Pa. Super. 2005). The Superior Court has also held that “substantial compliance” with Pa.R.C.P. 1042.3 constitutes a “legitimate excuse” for failure to comply with the rule where plaintiff provided defendant with an expert report and thus reasonably believed he was in compliance with the rule. Harris v. Neuburger, 877 A.2d 1275 (Pa. Super. 2005). Plaintiff properly cites Harris, stating:

“The plaintiff in Harris, the Superior Court found, had satisfied the underlying reason for the rule at issue and should not be denied his day in court due to a reasonable but mistaken belief that he need not file a certificate of merit.” Plaintiff’s supplemental brief in support of petition requesting relief from judgment of non pros, p. 2.

However, what distinguishes Harris from the instant case is that there, although the plaintiff had not yet filed his certificate of merit, he was found to have “substantially complied” with Pa.R.C.P. 1042.3 as he had already obtained expert reports and turned them over to the defendant. Ms. Bertovich has not presented any evidence that she has, as of yet, obtained any expert reports. The Superior Court in Harris went on to state that “[c]learly, the underlying purpose of [Rule 1042.3] is to prevent the filing of baseless medical professional liability claims.” Harris at 1278. In the instant case, plaintiff cannot establish that her failure to file a certificate of merit can be reasonably explained or legitimately excused. In fact, the only reasons plaintiff proffers for her failure to file a certificate of merit are as follows: (1) because she framed her case as an ordinary negligence claim instead of a professional negligence claim, the need for a certificate of merit is negated, and (2) her financial resources are extremely limited and, for that reason, she is attempting to keep litigation costs to a minimum.

Plaintiff cannot circumvent the requirement that she file a certificate of merit simply by framing what would otherwise be a professional negligence case as an ordinary negligence case. If the court were to permit her to do so, the purpose of Rule 1042.3 — preventing the filing of baseless litigation claims against medical professionals — would be thwarted. Whenever, as here, a complaint is predicated on facts involving diagnosis, care, and treatment by licensed professionals, the action is necessarily characterized as a professional negligence action. Yee v. Roberts, 878 A.2d 906, 912 (Pa. Super. 2005). Finally, although the court is mindful of the inherent expenses associated with pursuing any type of legal action, it fails to comprehend how plaintiff could continue to “reasonably” believe that she need not file a certificate of merit from the date the non pros was entered until the present.

For all of these reasons, plaintiff’s petition is denied.

ORDER

And now, October 18, 2005, after argument and in consideration of plaintiff’s petition requesting relief from judgment of non pros and the response thereto, plaintiff Loretta Bertovich’s petition is denied.


author: JOHNSON, J.,

text:
    Pennsylvania National Mutual Insurance Company v. Drozdowski

      Kenneth M. Portner, for plaintiff.

      Joseph P. Birmingham, for defendant.
    October 28, 2005
   JOHNSON, J.,

Before the court is the plaintiff Pennsylvania National Mutual Casualty Insurance Company’s insurance coverage action in which Penn National seeks a declaration that it does not owe coverage to Edward M. Drozdowski II under a Personal Auto insurance policy (PNI policy) issued to Peter Sukeena (owner) for claims asserted against Drozdowski in lawsuits brought by Sharon Hanna and Standard Fire Insurance Company arising out of an automobile accident occurring on July 13, 2002. Counsel filed a set of stipulated facts and trial memoranda pursuant to this court’s September 30, 2005 order. Argument was held on this matter on October 19, 2005.

Penn National argues that because Drozdowski did not have permission from the owner to operate the vehicle, Penn National has no duty to indemnify Drozdowski for any award entered against him in the lawsuits arising out of the accident. Defendant Standard Fire Insurance Company argues conversely that the law presumes that the driver of an automobile operates that motor vehicle with the permission of the owner, and that, by lending his vehicle to his son, Stephen Sukeena, the owner gave his implied permission for Drozdowski to operate said vehicle. For the reasons that follow, the court finds that Penn National has no duty to indemnify Drozdowski under the PNI policy for claims asserted against him in the underlying lawsuits.

1. STIPULATED FACTS

(1) This is a declaratory judgment action in which Penn National seeks a declaration that it does not provide coverage for Edward Drozdowski and the unidentified driver of a vehicle owned by Peter Sukeena which was involved in an accident with a vehicle occupied by Sharon, Joseph and Pauline Hanna on July 16,2002, in White Hall Township, Pennsylvania.

(2) On July 13, 2002, Sharon Hanna, Joseph Hanna, Pauline Hanna and Charlene Trumbauer were driving in a vehicle owned by Joseph and Pauline Hanna eastbound on Huckleberry Road in Whitehall Township, Pennsylvania. (Deposition of Sharon Hanna, February 21,2005 at 17-18.)

(3) As the Hanna vehicle came to the intersection of Huckleberry Road and Ridgeview Drive, it slowed to stop for a stop sign. (Deposition of Sharon Hanna, Februaiy 21, 2005 at 17-18.)

(4) As the Hanna vehicle was slowing to stop at the stop sign, a silver Acura sedan passed through the intersection from northbound Ridgeview Drive onto westbound Huckleberry Road without stopping at the posted stop sign on Ridgeview Drive. (Deposition of Sharon Hanna, February 21, 2005 at 17-18, 19.)

(5) In executing this turn, the Acura crossed from the westbound lane of Huckleberry Road into the eastbound lane of Huckleberry Road, striking the Hanna vehicle. (Deposition of Sharon Hanna, February 21, 2005 at 17-18.)

(6) The accident occurred shortly before 7 p.m. on July 13, 2002.

(7) Sharon Hanna testified that she saw two people in the silver Acura. One was an African-American male, the second was a white male. (Deposition of Sharon Hanna, February 21,2005 at 24-25.) She testified that at the time of the accident the silver Acura was being driven by the African-American. (Deposition of Sharon Hanna, February 21, 2005 at 24.)

(8) Later on, Sharon Hanna identified the white male passenger of the silver Acura as Edward Drozdowski. (Deposition of Sharon Hanna, February 21, 2005 at 21-22.)

(9) After the impact, the silver Acura that struck the Hanna’s vehicle left the scene without stopping. (Deposition of Sharon Hanna, February 21, 2005 at 20.)

(10) A witness to the accident saw and recorded the Acura’s license plate number and gave it to the police. (Deposition of Sharon Hanna, February 21,2005 at 32.)

(11) The police traced the license plate to a 2002 silver Acura RL owned by Peter Sukeena of 717 West Union Street, Whitehall, Pennsylvania. (Police accident report dated July 13, 2002.)

(12) Peter Sukeena is 77 years old. (Deposition of Peter Sukeena, January 25, 2005 at 6.) Peter is Stephen Sukeena’s father. (Deposition of Peter Sukeena, January 25,2005 at 7.) Stephen Sukeena is 42 years old. (Deposition of Peter Sukeena, January 25, 2005 at 7.)

(13) On July 12,2002 Peter loaned his 2002 Acura to Stephen. (Deposition of Peter Sukeena, January 25,2005 at 8.)

(14) On the night of July 12, 2002, Stephen drove in Peter’s car to Edward Drozdowski’s home at 1338 Gordon Street in Allentown, Pennsylvania. (Deposition of Stephen Sukeena, January 25, 2005 at 11.) There was a “get-together” at Drozdowski’s home and there were some girls there that Stephen liked. (Deposition of Stephen Sukeena, January 25, 2005 at 11.)

(15) Drozdowski’s home on Gordon Street in Allentown is 27 blocks west and 16 blocks north of Drozdowski’s home at 14th and Gordon Streets in Allentown. (Deposition of Edward M. Drozdowski II, June 13, 2005 at 71.)

(16) Stephen stayed overnight in Drozdowski’s home and woke up in the afternoon of Saturday, July 13,2002. (Deposition of Stephen Sukeena, January 25, 2005 at 17.)

(17) Stephen testified that on the afternoon of July 13, 2002, he asked Drozdowski to go to the store to get him vodka and cigarettes and gave Drozdowski the keys to Peter’s car. (Deposition of Stephen Sukeena, January 25, 2005 at 19,11. 16-25, 20,11. 1-9.)

(18) The State Store nearest to Drozdowski’s home at the time was located at 1928 Allen Street in Allentown, about seven blocks from Drozdowski’s home at 1338 Gordon Street. (Deposition of Edward Drozdowski, June 13,2005 at 65-66.)

(19) Stephen’s instructions to Drozdowski were to get the items and come right back. (Deposition of Stephen Sukeena, January 25, 2005 at 30,11. 2-5.) To Stephen at least, it was clear that Drozdowski was not supposed to let anyone else drive the car. (Deposition of Stephen Sukeena, January 25, 2005 at 30,11. 6-10.)

(20) Stephen testified that he could not think of anything that he had said or done which would lead Drozdowski to believe that it was ok for him to let someone else drive the car. (Deposition of Stephen Sukeena, January 25,2005 at 68.)

(21) Drozdowski testified that he had never borrowed or used a car from Stephen prior to July 13,2002. (Deposition of Edward M. Drozdowski II, June 13,2005 at 18, 11. 7-15.)

(22) Stephen saw Drozdowski leave but did not see Drozdowski leave with anyone. (Deposition of Stephen Sukeena, January 25, 2005 at 20,11. 7-8.) Stephen saw Drozdowski back in Drozdowski’s home on the evening of July 13,2002. (Deposition of Stephen Sukeena, January 25, 2005 at 22, 11. 11-17.)

(23) Drozdowski had been gone for several hours before Stephen discovered he was back. (Deposition of Stephen Sukeena, January 25,2005 at 64,11.4-8.) Stephen was angry because Drozdowski was supposed to have gotten the items and come right back. (Deposition of Stephen Sukeena, January 25, 2005 at 64, 11. 18-25, 65, 11. 1-21.)

(24) Stephen testified that Drozdowski told him that he had returned from the errand, left the keys to the car on the refrigerator, and then left to go to a bar. (Deposition of Stephen Sukeena, January 25, 2005 at 66,11. 11-18.)

(25) When Stephen went to leave Drozdowski’s home at around 11 p.m. on Saturday, July 13,2002, he discovered that his father’s car had been damaged. (Deposition of Stephen Sukeena, January 25,2005 at 21-22.) Stephen returned to Drozdowski’s home to ask him what had happened to the car and Drozdowski told him the damage must have occurred while it was parked. (Deposition of Stephen Sukeena, January 25, 2005 at 23,11. 13-18.)

(26) Drozdowski testified that in the early afternoon of July 13,2005, Stephen asked him to go to the store to get cigarettes and beer and gave him the keys to the car. (Deposition of Edward M. Drozdowski II, June 13,2005, at 18,11. 7-15.)

(27) Drozdowski testified that he took the keys, left in the car to go the store, Woody’s at 12th and Liberty Streets in Allentown, and returned in 20 minutes. (Deposition of Edward M. Drozdowski II, June 13,2005 at 20,11.10-19.) Drozdowski testified that Stephen asked him to go out a second time later that day to get more beer and that he believes he used the car a second time to do this. (Deposition of Edward M. Drozdowski II, June 13,2005, at 20 11. 19-25.) Drozdowski stated that after each time when he returned he gave the keys back to Stephen. (Deposition of Edward M. Drozdowski II, June 13,2005 at 20,11. 23-25.)

(28) Drozdowski indicated that he returned the keys to Stephen the second time at approximately 5 p.m. on July 13,2002, and left his house to go to a bar with some friends. (Deposition of Edward M. Drozdowski II, June 13,2005 at 21 -22.) He returned to his home from the bar and when Stephen left his house at around midnight on July 13, he could not find the car keys. The keys were discovered on top of the refrigerator. (Deposition of Edward M. Drozdowski II, June 13, 2005 at 23,11. 8-15.)

(29) Drozdowski testified that he was not in the Acura at the time of the accident with the Hanna vehicle and that he did not give the keys to the vehicle to anyone else in the course of that day. (Deposition of Edward M. Drozdowski II, June 13, 2005 at 43-44.)

(30) Stephen did not own a car. (Deposition of Peter Sukeena, January 25, 2005 at 8.) Accordingly, it was normal for Peter to loan Stephen his car. (Deposition of Peter Sukeena, January 25, 2005 at 9.) However, Stephen did not have his own set of keys for the car and had to ask Peter for the keys when he wanted to use it. (Deposition of Peter Sukeena, January 25, 2005 at 52,11. 8-17.)

(31) Peter did not give Stephen any instructions as to who was permitted to drive the Acura when Stephen took the car on July 12, 2002, (Deposition of Peter Sukeena, January 25,2005 at 13), and before July 12,2002, Peter had never had any discussions with Stephen about who was allowed to drive Peter’s car. (Deposition of Peter Sukeena, January 25,2005 at 14.) However, Peter testified that he did not know that his son was letting other people drive his car and that it was not ok with him if his son let other people drive his car. (Deposition of Peter Sukeena, January 25,2005 at 25,11.7-16.) Peter had never heard of or met Edward Drozdowski before the July 13, 2002 accident. (Deposition of Peter Sukeena, January 25,2005 at 17-18.)

(32) Peter recalled that he had lent his car to Stephen on the evening of July 12, 2002, a Friday. Peter did not see the car again until Sunday, July 14, 2002, when the police came to see him because the car had been reported to have been involved in the July 13,2002 accident with the Hanna vehicle.

(33) Stephen testified that he had never let Drozdowski or anyone else borrow Peter’s car before July 13, 2002. (Deposition of Stephen Sukeena, January 25,2005 at 24, 11. 13-19.)

(34) In 2004, Sharon Hanna and Standard Fire Insurance Company (as subrogee of Joseph and Pauline Hanna) brought lawsuits against Peter Sukeena, Stephen Sukeena and Edward Drozdowski for damages allegedly arising from the July 13, 2002 accident.

(35) The Hanna and Standard Fire lawsuits allege that Drozdowski was liable because he negligently entrusted the vehicle to the driver.

(36) Pennsylvania National issued a Personal Auto Policy of insurance, policy number *** *******^ to Peter Sukeena (the PNI policy). The PNI policy had effective dates ofFebruaiy 11,2002 to August 11,2002. (PNI policy attached as exhibit “A” not included herein.)

(37) The PNI policy lists Peter Sukeena as the “named insured.” The 2002 Acura involved in the accident is a covered auto under the PNI policy.

(38) The insuring agreement of the PNI policy provides as follows:

“We will pay damages for ‘bodily injury’ or ‘property damage’ for which any ‘insured’ becomes legally responsible because of an auto accident.” PNI policy, form 70-3408 (Rev. 06/99) Part A. — Liability coverage at 1.

(39) The PNI policy defines the term “insured,” in pertinent part, as follows:

“ ‘Insured’ as used in this part means:
“(1) You or any ‘family member’ for the ownership, maintenance or use of any auto or ‘trailer.’
“(2) Any person using ‘your covered auto.’ ” PNI policy, form PP 00 01 06 98, Part A. — Liability coverage at 2.

(40) The PNI policy defines “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household.” PNI policy, form PP 00 01 06 98 definitions F. at page 1.

(41) The PNI policy does not provide liability coverage for any “insured” “[u]sing a vehicle without permission of the owner.” PNI policy, form 70-3408 (Rev. 06/ 99) Part A. — Liability coverage, exclusions A. 8 at 1.

2. CONCLUSIONS OF LAW

(1) If the language of an insurance policy is unambiguous, the court must apply the policy as written. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983).

(2) Pennsylvania law permits recovery under an insurance policy with a “non-permissive use” if it is possible to establish either express or implied permission to use the vehicle. Nationwide Mutual Insurance Co. v. Cummings, 438 Pa. Super. 586, 599, 652 A.2d 1338, 1344 (1994).

3. THE PENN NATIONAL POLICY

The interpretation of an insurance policy presents a question of law for the court. Bowers v. Feathers, 448 Pa. Super. 263, 268, 671 A.2d 695, 697 (1995). This requires the court to determine the parties’ intent as manifested in the language of the policy. Nationwide Insurance Co. v. Horace Mann Insurance, 759 A.2d 9, 11 (Pa. Super. 2000). If the language of the policy is unambiguous, the court must apply the policy as written. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). A policy is not ambiguous simply because the parties disagree on its meaning. Williams v. Nationwide Mutual Insurance Co., 750 A.2d 881, 885 (Pa. Super. 2000).

The court finds that the PNI policy clearly and unambiguously provides that persons who are not directly insured under the PNI policy are not entitled to coverage when they use a vehicle covered under the policy without the owner’s permission.

The policy’s insuring agreement provides as follows:

“We will pay damages for ‘bodily injury’ or ‘property damage’ for which any ‘insured’ becomes legally responsible because of an auto accident.” Penn National Policy, form 70-3408 (Rev. 06/99) Part A. — Liability coverage at 1.

An “insured” is defined, in pertinent part, as follows:

“ ‘Insured’ as used in this part means:
“(1) You or any ‘family member’ for the ownership, maintenance or use of any auto or ‘trailer.’
“(2) Any person using ‘your covered auto.’ ” PNI policy, form PP 00 01 06 98, Part A. — Liability coverage at 2.

The PNI policy defines “family member” as “a person related to you by blood, marriage or adoption who is a resident of your household.” PNI policy, form PP 00 01 06 98 definitions F. at page 1. Thus, the PNI policy provides coverage for Peter Sukeena, his “family members” and also for anyone using Peter Sukeena’s 2002 Acura, which is a covered vehicle under the PNI policy.

However, the PNI policy excludes coverage for any “insured” “[ujsing a vehicle without permission of the owner.” PNI policy, form 70-3408 (Rev. 06/99) Part A.— Liability coverage, exclusions A. 8 at 1. Thus, Drozdowski is only insured if he was using Peter Sukeena’s 2002 Acura with Peter Sukeena’s permission. The evidence shows, however, that Drozdowski had neither express nor implied permission from Peter Sukeena to use the Acura. Accordingly, under the clear and unambiguous language of the PNI policy, Drozdowski is not entitled to coverage for Hanna’s and Standard Fire’s claims.

II. Permission To Use the Vehicle

Pennsylvania law permits recoveiy under an insurance policy with a “non-permissive use” provision if it is possible to establish either express or implied permission to use the vehicle. Nationwide Mutual Insurance Co. v. Cummings, 438 Pa. Super. 586, 599, 652 A.2d 1338, 1344 (1994). A framework for analyzing whether an individual has implied permission to use a vehicle was set forth by the Superior Court in Belas v. Nelanovich, 247 Pa. Super. 313, 372 A.2d 478 (1977). In order to establish whether a party has implied permission:

“[Tjhe critical question will always be whether the named insured said or did something that warranted the belief that the ensuing use was with [its] consent. There must be ‘a connection made’ with the named insured’s own conduct; proof of‘acts, circumstances and facts such as the continued use of the car,’ will be insufficient ‘unless they attach themselves in some way to the acts’ of the named insured.” Id., 247 Pa. Super, at 324, 372 A.2d at 486.

Thus, there must be a nexus between the acts and the voluntary action on the part of the named insured in order for implied consent to exist. Determining whether a sufficient nexus exists is a factual question involving an analysis of the initial grant of permission to determine whether it was broad enough to include an implied grant to the permittee to give another use of the automobile. Belas, 247 Pa. Super, at 321, 372 A.2d at 483.

a. Stephen Did Not Have Permission To Let Drozdowski Drive the Car

Peter Sukeena gave permission to Stephen Sukeena to use his car. But there is no evidence that Peter Sukeena expressly authorized anyone other than Stephen to drive the car, or that Peter gave permission to Stephen to let others drive the car. Peter testified that he and Stephen had never discussed letting others drive the car, and, moreover, that had they discussed it he would not have given permission. (Stipulated facts at ¶31.) Therefore, there was no express permission by Peter Sukeena for Drozdowski to drive the car.

There is also no evidence that could support a finding of implied permission because Peter Sukeena did not do or say anything to Stephen that would have allowed him to conclude that letting Drozdowski drive the car was permissible. Peter was not in fact aware that Stephen had ever let anyone else drive his car. (Stipulated facts at ¶31.) The fact that Peter and Stephen never discussed whether Stephen was authorized to in turn loan the car to another is insufficient to establish that permission because permission requires something more than mere sufferance or tolerance without taking steps to prevent use of the automobile, and permission cannot be implied from possession and use of the automobile without the knowledge of the named insured. Federal Kemper Ins. Co. v. Neary, 366 Pa. Super. 135, 530 A.2d 929 (1987). Therefore, Drozdowski did not have the implied permission of Peter Sukeena to operate the car.

The evidence demonstrates that Stephen was not authorized, expressly or impliedly, to give permission to Drozdowski to drive the car. Therefore, whether it was Drozdowski who was driving the car at the time of the accident or a third person to whom Drozdowski had loaned the vehicle, Drozdowski is not entitled to coverage.

4. CONCLUSION

Therefore, because Edward Drozdowski was using the vehicle without the permission of its owner, regardless of whether Drozdowski or some other person whom he might have allowed to drive the car at the time of the motor vehicle accident was driving, Drozdowski is not entitled to coverage under the insurance policy issued by Penn National to Peter Sukeena.

ORDER

And now, October 28, 2005, upon consideration of the complaint for declaratory judgment filed on October 1, 2004, and after submission of stipulated facts and argument; it is hereby ordered that the relief requested is granted and declaratory judgment is entered in favor of plaintiff Pennsylvania National Mutual Casualty Insurance Company and against defendants Edward Drozdowski, Sharon Hanna, Standard Fire Insurance Company, Joseph Hanna, Pauline Hanna and John Doe 1 a/k/a “Q ”