author: BERNSTEIN, J,

text:
    Board v. SEPTA

      Michael D. Donovan and David A. Searles, for plaintiffs.

      Michael A. Hamilton and Paul W. Hanley, for defendant.
    July 18, 2010
   BERNSTEIN, J,

This is aclass action for damages and equitable relief brought on behalf of Pennsylvania claimants against SEPTA, a municipal transportation authority, for improper payment of PIP benefits in connection with medical claims by persons injured in accidents while on SEPTA vehicles. At issue is whether 75 Pa.C.S. §1797 of the Pennsylvania Motor Vehicle Financial Responsibility Law applies to SEPTA, a self-insurer.

On December 16,2002, while passengers on SEPTA, plaintiffs suffered physical injuries as a result of a collision. Plaintiffs were provided medical services by medical providers who submitted the bills to SEPTA for payment. SEPTA paid certain amounts to plaintiffs’ medical providers. With regard to plaintiff Houston, the medical providers submitted bills for $3,435, $225, $1,155 and $2,049 totaling $6,864. SEPTA paid the bills for $3,435, $225, $1,155 in full and subsequently paid $185 towards the $2,049 bill. The payments amounted to a total of $5,000. With regard to plaintiff Board, the medical providers submitted bills for $225, $2,505, and $3,070 to SEPTA for a total of $5,800.00. SEPTA paid the bills for $225 and $2,505 in full and paid $2,270 toward the $3,070 for payments totaling $5,000. None of the payments made reflect the 110 percent Medicare reduction provided for in section 1797(a) of the MVFRL.

On July 21, 2004, plaintiffs instituted suit against SEPTA alleging violations of the MVFRL and the UTPCPL. Plaintiffs allege that SEPTA was required to pay plaintiffs’ medical expenses at 110 percent of the allowances as required under 75 Pa.C.S. § 1797(a) of the MVFRL. Plaintiffs claim that this would result in a higher percentage of the total medical bills being paid by their PIP coverage. SEPTA filed preliminary objections which were overruled by the court. On March 30, 2005, SEPTA filed a motion for judgment on the pleadings which was denied by the court. On December 5, 2005, the court certified the order denying the motion for judgment on the pleadings for interlocutory appeal and SEPTA filed its appeal with the Commonwealth Court. The court stayed all proceedings pending a decision on SEPTA’s interlocutory appeal. On January 12, 2006, the appeal was dismissed pursuant to Pa.R.C.P. 1311 for failure to timely appeal. On February 13,2006, SEPTA filed a petition for allowance of appeal with the Supreme Court which was denied on February 7, 2008.

Plaintiffs have now filed a motion for issue only class certification pursuant to Pa.R.C.P. 1708 and 1710(c)(1) and a motion for partial summary judgment seeking declaratory relief and injunctive relief.

DISCUSSION

I. Plaintiffs ’ Motion for Class Certification Is Granted

The purpose behind class action suits is “to provide a means by which the claims of many individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate.” For a suit to proceed as a class action, Rule 1702 of the Pennsylvania Rules of Civil Procedure requires that five criteria be met: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; (4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1704; (5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

Rule 1708 of Pennsylvania Rules of Civil Procedure provides that in determining whether a class action is a fair and efficient method of adjudicating a controversy, the court is to consider, among other matters, the following criteria:

“(a) Where monetary recovery alone is sought, the court shall consider
“(1) whether common questions of law or fact predominate over any question affecting only individual members;
“(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
“(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
“(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
“(ii) adjudications with respect to individual members of the class which would as a practical matter be dis-positive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
“(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
“(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
“(6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions;
“(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.
“(b) Where equitable or declaratory relief alone is sought, the court shall consider
“(1) the criteria set forth in subsections (1) through (5) of subdivision (a), and
“(2) whether the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final equitable or declaratory relief appropriate with respect to the class.
“(c) Where both monetary and other relief is sought, the court shall consider all the criteria in both subdivisions (a) and (b).”

The burden of showing each of the elements in Rule 1702 is initially on the moving party. This burden “is not heavy and is thus consistent with the policy that decisions in favor of maintaining a class action should be liberally made.” The moving party need only present evidence sufficient to make out a prima facie case “from which the court can conclude that the five class certification requirements are met.”

In other contexts, the prima facie burden has been construed to mean “some evidence,” “a colorable claim,” “substantial evidence,” or evidence that creates a rebut-table presumption that requires the opponent to rebut demonstrated elements. In the criminal law context, “the prima facie standard requires evidence of the existence of each and every element.” However, “the weight and credibility of the evidence are not factors at this stage.”

In the family law context, the term “ ‘prima facie right to custody’ means only that the party has a colorable claim to custody of the child.” Similarly, in the context of employment law, the Commonwealth Court has opined that a prima facie case can be established by “substantial evidence” requiring the opposing party to affirmatively rebut that evidence. Courts have consistently interpreted the phrase “substantial evidence” to mean “more than a mere scintilla,” but evidence “which a reasonable mind might accept as adequate to support a conclusion.” In Grakelow v. Nash, 98 Pa. Super. 316 (1929), a tax case, the Superior Court said: “To ordain that a certain act or acts shall be prima facie evidence of a fact means merely that from proof of the act or acts, a rebuttable presumption of the fact shall be made; ... it attributes a specified value to certain evidence but does not make it conclusive proof of the fact in question.”

Class certification is a mixed question of fact and law. The court must consider all the relevant testimony, depositions and other evidence pursuant to Rule 1707(c). In determining whether the prerequisites of Rule 1702 have been met, the court is only to decide who shall be the parties to the action and nothing more. The merits of the action and the plaintiffs’ right to recover are excluded from consideration. Where evidence conflicts, doubt should be resolved in favor of class certification. In making a certification decision, “courts in class certification proceedings regularly and properly employ reasonable inferences, presumptions, and judicial notice.” Accordingly, this court must refrain from ruling on plaintiff’s ultimate right to any recovery, the credibility of the witnesses and the substantive merits of defenses raised.

“The burden of proof to establish the five prerequisites to class certification lies with the class proponent; however, since the hearing on class certification is akin to a preliminary hearing, it is not a heavy burden.” The prima facie burden of proof standard at the class certification stage is met by a qualitative “substantial evidence” test. Our Superior Court has instructed that it is a strong and oft-repeated policy of this Commonwealth that decisions applying the rules for class certification should be made liberally and in favor of maintaining a class action.”

Likewise, the Commonwealth Court has held that “in doubtful cases, any error should be committed in favor of allowing class certification.” This philosophy is further supported by the consideration that “the court may alter, modify, or revoke the certification if later developments in the litigation reveal that some prerequisite to certification is not satisfied.”

Within this context, the court will examine the requisite factors for class certification.

A. Numerosity

To be eligible for certification, plaintiffs must demonstrate that the class is “so numerous that joinder of all members is impracticable.” A class is sufficiently numerous when “the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain on the energies and resources of the litigants should plaintiffs sue individually.” Plaintiffs need not plead or prove the actual number of class members, so long as they are able to “define the class with some precision” and provide “sufficient indicia [to the court] that more members exist than it would be practicable to join.”

Here, the class consists of 7,000 claimants for whom PIP files were established by SEPTA during the relevant time period. Defendant does not contest numerosity. As such, plaintiffs have satisfied the numerosity requirement for class certification of all proposed classes.

B. Commonality

The second prerequisite for class certification is that “there are questions of law or fact common to the class.” Common questions exist “if the class members’ legal grievances arise out of the ‘same practice or course of conduct on the part of the class opponent.’ ” Thus, it is necessary to establish that “the facts surrounding each plaintiff’s claim must be substantially the same so that proof as to one claimant would be proof as to all.” However, where the challenged conduct affects the potential class members in divergent ways, commonality may not exist. “While the existence of individual questions is not necessarily fatal, it is essential that there be a predominance of common issues shared by all class members which can be justly resolved in a single proceeding.” In examining the commonality of the class’ claims, a court should focus on the cause of injury and not the amount of alleged damages. “Once a common source of liability has been clearly identified, varying amounts of damages among the plaintiffs will not preclude class certification.” Where there exists intervening and possibly superseding causes of damage however, liability cannot be determined on a class-wide basis.

After reviewing the record created, the court finds that the claims presented by the class do satisfy the commonality requirement of Rule 1702(a)(2). The common issue is the applicability of section 1797(a) of the MVFRL to self-insurers such as SEPTA, the nature of financial losses suffered by class members and whether SEPTA has become unjustly enriched by not paying benefits and whether SEPTA has become unjustly enriched by not paying benefits as required by the MVFRL. Plaintiffs have sustained their burden of demonstrating that common issues of fact and law exist to satisfy the requirement of commonality.

C. Typicality

The third step in the certification test requires the plaintiff to show that the class action claims and defenses are typical of the entire class. The purpose behind this requirement is to determine whether the class representatives’ overall position on the common issues is sufficiently aligned with that of the absent class members, to ensure that pursuit of their interests will advance those of the proposed class members.

The named plaintiffs here are typical of those class claimants. The named plaintiffs suffered monetary loss upon the exhaustion of the $5,000 limit by SEPTA. The fact that different class members may have different damage claims does not defeat the typicality of the class representative. The requirement of typicality has been met.

D. Adequacy of Representation

For the class to be certified, this court must also conclude that the plaintiffs “will fairly and adequately assert and protect the interests of the class.” In determining whether the representative parties will fairly and adequately represent the interests of the class, the court shall consider the following: “(1) whether the attorney for the representative parties will adequately represent the interests of the class, (2) whether the representative parties have a conflict of interest in the maintenance of the class action, and (3) whether the representative parties have or can acquire financial resources to assure that the interests of the class will not be harmed.”

“Until the contrary is demonstrated, courts will assume that members of the bar are skilled in their profession.” Here, defendants do not challenge plaintiffs’ counsels’ skill and therefore, the court presumes that counsel is skilled in their profession. “Courts have generally presumed that no conflict of interest exists unless otherwise demonstrated, and have relied upon the adversary system and the court’s supervisory powers to expose and mitigate any conflict.” Defendants argue that the interests of the named plaintiffs conflict with the interests of other class members. This court concludes that the named class representatives’ interests do not conflict with those of the proposed putative class even though some class members may have additional monetary claims. Accordingly, the court finds that no conflict of interest exists and the adequacy of representation has been demonstrated,

E. Fair and Efficient Method of Adjudication

The final criteria under Pa.R.C.P. 1702 is a determination of whether a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708. Since the court has determined that the claims satisfy the requirements of Pa.R.C.P. 1702 and since equitable relief is requested, it is necessary to consider both subdivisions (a) and (b) of Rule 1708.

1. Predominance of common questions of law and fact

The most important requirement in determining whether a class should be certified under 1702(a)(5) and 1708(a)(1) is whether common questions of law and fact predominate over any question affecting only individual members. In addition to the existence of common questions of law and fact, plaintiffs must also establish that the common issues predominate. The analysis of predominance under Rule 1708(a)(1) is closely related to that of commonality under Rule 1702(2). The court adopts and incorporates its analysis of commonality and concludes that the requirement of predominance has been satisfied.

2. The existence of serious management difficulties

Under Pa.R.C.P. 1708(2), a court must also consider the size of the class and the difficulties likely to be encountered in the management of the action as a class action. While a court must consider the potential difficulties in managing the class action, any such difficulties generally are not accorded much weight. Problems of administration alone ordinarily should not justify the denial of an otherwise appropriate class action for to do so would contradict the policies underlying this device. Rather, the court should rely on the ingenuity and aid of counsel and upon its plenary authority to control the action to solve whatever management problems the litigation may bring. The court sees no serious management difficulties in the trial of this case. Whatever management problems remain, this court will rely upon the ingenuity and aid of counsel and upon the court’s plenary authority to control the action.

3. Potential for inconsistent adjudications

Pennsylvania Rule 1708(a)(3) also requires a court to evaluate whether the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class. In considering the separate effect of actions, the precedential effect of a decision is to be considered as well as the parties’ circumstances and respective ability to pursue separate actions. While there is significant risk of inconsistent adjudications if tried separately, because of the straightforward nature of the issues and facts involved, as a single certified class one case will determine liability and one verdict will establish all obligations. Any possibility for inconsistent verdicts is eliminated by certification.

4. Extent and nature of any preexisting litigation and the appropriateness of this forum

Under Pa.R.C.P. 1708(a)(4) and (a)(5), a court should consider the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues. The court is aware of no litigation which would conflict with this case. This court finds that this forum is appropriate to litigate the class claims. This court has a demonstrated record of excellence in managing complex litigation and class action litigation.

5. The separate claims of the individual plaintiffs are insufficient in amount to support separate claims or their likely recovery

Rule 1708 also requires the court to consider the amount of damages sought by the individual plaintiffs in determining the fairness and efficiency of a class action. Thus, a court must analyze whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions. Alternatively, the rules ask the court to analyze whether it is likely that the amounts which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action. This criterion is rarely used to disqualify an otherwise valid class action claim. However, in Klusman v. Bucks County Court of Common Pleas, 128 Pa. Commw. 616, 631, 564 A.2d 526, 534 (1989) the court said: “Where the issue of damages does not lend itself to a mechanical calculation, but requires separate mini-trials of a large number of individual claims, courts have found that the staggering problem of logistics make the damage aspect of the case predominate and renders the class unmanageable as a class action.”

Herein, the individual claims of the individual plaintiffs are insufficient in amount to support separate claims or their likely recovery, but sufficient to warrant class action status. The Pennsylvania rules for class certification “manifest a particular sensitivity to providing a procedure for persons with small claims to obtain judicial relief through the use of a class action.” Thus, Pa.R.C.P. 1708(a)(6) and (7) have been satisfied.

6. Final and equitable relief is appropriate for the class since SEPTA has acted and refused to act on grounds that are applicable to the class

Under Pa.R.C.P. 1708(b)(2), where equitable relief is sought, a court should consider whether the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final equitable or declaratory relief appropriate with respect to the class. SEPTA admits that it does not comply with the payment provisions of section 1797. SEPTA’s practice of not complying with section 1797 affects thousand of class members that have been and will continue to be affected by this policy. Since plaintiffs seek equitable relief in the form of an order declaring and compelling SEPTA to conform to section 1797 and require cost reduction under section 1797, class action treatment is appropriate.

II. SEPTA Is Subject to the Cost Reduction Provisions of Section 1797(a)

SEPTA, a regional transportation authority created by an act of the General Assembly, is a self-insurer. It does not issue policies or collect premiums as would an insurance company. However, in accordance with section 1711(a) of the MVFRL, SEPTA does provide medical coverage in the amount of $5,000 for passengers in its vehicles which are registered under the MVFRL. SEPTA contends however, that although it provides medical coverage it is exempt from the cost reduction provision of section 1797(a) because it is a self insurer and not an insurer. Plaintiffs on the other hand contend that the cost reduction provision of section 1797(a) applies. The issue raised strictly and solely presents a matter of statutory construction and is appropriate for ruling on a partial summary judgment motion.

Under the Statutory Construction Act of 1972, it is fundamental that “[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly[,j” and that “[ejvery statute shall be construed, if possible, to give effect to all its provisions. In this regard, the Act instructs that “[wjhen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirits.” When, however, the words of the statute are not explicit, the General Assembly’s intent is to be ascertained by considering matters other than statutory language, like the occasion and necessity for the statute; the circumstances of its enactment; the object it seeks to attain; the mischief to be remedied; former laws; consequences of a particular interpretation; contemporaneous legislative history; and legislative and administrative interpretations.

The Act provides that “[wjords and phrases shall be construed according to the rules of grammar and according to their common and approved usage”; and that “technical words and phrases and such others as have acquired a peculiar and appropriate meaning... shall be construed according to such peculiar and appropriate meaning or definition.” Further, if the General Assembly defines words that are used in a statute, those definitions are binding. The Act allows a court to presume that the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable; that the General Assembly intends the entire statute to be certain and effective, and intends to favor the public interest as against any private interest. Moreover, the Act sets forth rules for a court to follow when provisions in or among statutes are in conflict and cannot be reconciled.

A self-insurer is defined in 75 Pa.C.S. §1702 as an entity providing benefits and qualified in the manner set forth in section 1787. Section 1787(a) provides as follows:

“Self insurance.
“(a) General rule — Self-insurance is effected by filing with the Department of Transportation, in satisfactory form, evidence that reliable financial arrangements, deposits, resources or commitments exist such as will satisfy the department that the self-insurer will:
“(1) Provide the benefits required by section 1711 (relating to required benefits), subject to the provisions of subchapter B (relating to motor vehicle liability insurance first party benefits), except the additional benefits and limits provided in sections 1712 (relating to availability of benefits) and 1715 (relating to availability of available limits).
“(2) Make payments sufficient to satisfy judgments as required by section 1775 (relating payments sufficient to satisfy judgments).
“(3) Provide uninsured motorist coverage up to the limits set forth in section 1774.” (emphasis added)

Thus, as a self-insurer, SEPTA is required and in fact does provide first-party medical benefits to individuals injured in a motor vehicle accident involving a SEPTA vehicle as required by section 1711(a). Section 1787 specifically states that although SEPTA is required to provide first-party medical benefits to individuals injured in a motor vehicle accident it is to do so “subject to the provisions of subchapter B” and without the additional benefits and limits provided in sections 1712 relating to availability of benefits and 1715 relating to availability of available limits. Section 1712 is set forth in subchapter B of the Act and provides as follows:

“An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except recreational vehicles not intended for highway use, motorcycles . . . shall make available for purchase first-party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows: (1) Medical Benefits — Subject to the limitations of section 1797 (relating to customary charges for treatment), coverage to provide for reasonable and necessary medical treatment and rehabilitative services, including, but not limited to, hospital, dental, surgical, psychiatric, psychological, osteopathic, ambulance, chiropractic, licensed physical therapy, nursing services, vocational rehabilitation and occupational therapy, speech pathology and audiology, optometric services, medications, medical supplies and prosthetic devices, all without limitation as to time, provided that, within 18 months from the date of the accident causing injury, it is ascertainable with reasonable medical probability that further expenses may be incurred as a result of the injury. Benefits under this paragraph may include any nonmedical remedial care and treatment rendered in accordance with a recognized religious method of healing. (2) Income Loss Benefit — Includes the following:
“(i) Eighty percent of actual loss of gross income.
“(ii) Reasonable expenses actually incurred for hiring a substitute to perform self-employment services thereby mitigating loss of gross income or for hiring special help thereby enabling a person to work and mitigate loss of gross income.
“Income loss does not include loss of expected income for any period following the death of an individual or expenses incurred for services performed following the death of an individual. Income loss shall not commence until five working days have been lost after the date of the accident. (3) Accidental Death Benefit — A death benefit paid to the personal representative of the insured, should injury resulting from a motor vehicle accident cause death within 24 months from the date of the accident. (4) Funeral Benefit — Expenses directly related to the funeral, burial, cremation or other form of disposition of the remains of a deceased individual, incurred as a result of the death of the individual as a result of the accident and within 24 months from the date of the accident. (5) Combination Benefit — A combination of benefits described in paragraphs (1) through (4) as an alternative to the separate purchase of those benefits (6) Extraordinary Medical Benefits — Medical benefits, as defined in paragraph (1), which exceed $100,000.”

Although section 1712 provides for different categories of benefits to be made available by insurers, self-insurers are only required to provide medical benefits. Since self-insurers are required to provide medical benefits, self-insurers are subject to section 1797 which requires the reduction of medical benefits paid to providers as set forth in sections 1712 (1) and 1797. Specifically section 1797 provides:

“A person or institution providing treatment, accommodations, products or services to an injured person for an injury covered by liability or uninsured and underinsured benefits or first-party medical benefits, including extraordinary medical benefits, for a motor vehicle described in subchapter B (relating to motor vehicle liability insurance first-party benefits) shall not require, request or accept payment for the treatment, accommodations, products or services in excess of 110 percent of the prevailing charge at the 75th percentile; 110 percent of the applicable fee schedule, the recommendation fee or the inflation index charge; or 110 percent of the diagnostic-related groups (DRG) payment; whichever pertains to the specialty service involved, determined to be applicable in this Commonwealth under the Medicare program for comparable services at the time the services were rendered, or the provider’s usual and customary charge, whichever is less. The General Assembly finds that the Medicare program is an appropriate basis to calculate payment for treatments, accommodations, products or services for injuries covered by liability or uninsured and underinsured benefits or first-party medical benefits insurance ....” (emphasis added)

The MVFRL was enacted as a means of insurance reform primarily to reduce the escalating costs of purchasing motor vehicle insurance in our Commonwealth. An equally important underlying objective of the MVFRL is to provide broad coverage to assure proper medical care to the injured in motor vehicle accidents. Thus, the MVFRL is to be construed liberally to afford the greatest possible coverage to injured claimants. With these principles in mind the court holds that SEPTA is required to reduce the medical payments to providers pursuant to section 1797 of the Act. Effectuating the legislative intent embodied in section 1797 requires that SEPTA like all other operators of motor vehicles in the Commonwealth is employing cost containment in all aspects of medical services payments to claimants as a result of injuries sustained in motor vehicle accidents. By reducing the medical payments to providers of medical and rehabilitative services, the legislative intent of section 1797 is fulfilled.

CONCLUSION

Plaintiffs’ petition for class certification is granted. Plaintiffs’ petition for summary judgment seeking declaratory and injunctive relief is granted and defendant’s cross motion for summary judgment is denied.

ORDER

And now, June 18,2010, upon consideration of plaintiffs’ motion for limited class certification, declaratory judgment and partial summary judgment and defendant’s cross motion for summary judgment, all responses in opposition, and in accord with the attached opinion, it hereby is ordered as follows:

(1) Plaintiffs’ motion for limited class certification is granted. A class is hereby certified and defined as follows: “all persons as to whom SEPTA has not paid or will not pay personal injury protection benefits in accordance with 75 Pa. C. S. § 1797(a) of the Motor V ehicle Financial Responsibility Law, during the period beginning July 2000 and continuing through the date of final appellate review.” Plaintiffs Louise Board and Claudette Houston are certified as class representatives. Michael D. Donovan of Donovan Searles LLC and Kevin P. Kelly of Kelly & Herron P.C. shall serve as co-lead counsel.

(2) Plaintiffs’ motion for partial summary judgment as to the claim for declaratory relief is granted and the court declares that SEPTA is required to comply with the mandates of section 1797 of the Motor Vehicle Financial Responsibility Law.

(3) Plaintiff’s motion for injunctive relief is granted and SEPTA is required to comply with the mandates of section 1797 of the Motor Vehicle Financial Responsibility Law.

It is further ordered that defendant’s cross motion for summary judgment is denied.

        . DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 397, 676 A.2d 1237, 1239 (1996).

      . Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 45, 501 A.2d 635, 637(1985).

      . Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002) quoting Janicik v. Prudential Insurance Company of America, 305 Pa. Super 120, 128, 451 A.2d 451, 455 (1982)).

      . Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa. Super 1999), alloc. denied, 560 Pa. 722, 745 A.2d 1220 (1999).

      . Commonwealth v. Martin, 779 A.2d 1177, 1180 (Pa. Super. 2001).

      . McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000).

      . See e.g., Williamsburg Community School District v. Commonwealth Pennsylvania Human Rights Commission, 99 Pa. Commw. 206, 512 A.2d 1339 (1986).

      . SSEN Inc., v. Borough Council of Borough of Eddystone, 810 A.2d 200, 207 (Pa. Commw. 2002).

      . Debbs v. Chrysler Corp., 810 A.2d 137 (Pa. Super. 2002).

      . 1977 Explanatory comment to Pa.R.C.P. 1707.

      . Janicik v. Prudential Insurance Company of America, 305 Pa. Super. 120, 128, 451 A.2d 451, 455 (1982).

      . Professional Flooring Co. v. Bushar Corp, 61 D.&C.4th 147, 153, (Montg. Cty. 2003) (citing Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002); Janicik v. Prudential Insurance Company of America, 305 Pa. Super. 120, 128, 451 A.2d 451, 455 (1982)); see also, Baldassari v. Suburban Cable TV Co. Inc., 808 A.2d 184, 189 (Pa. Super. 2002); Cambanis v. Nationwide Insurance Company, 348 Pa. Super. 41, 501 A.2d 635 (1985).

      . Weismer by Weismer v. Beech-Nut Nutrition Corporation, 419 Pa. Super. 403, 407, 615 A.2d 428, 431 (1992). See also, Janicik, 305 Pa. Super, at 128, 451 A.2d at 454, citing and quoting Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968) (“in a doubtful case . . . any error should be committed in favor of allowing the class action”).

      . Foust v. SEPTA, 756 A.2d 112, 118 (Pa. Commw. 2000).

      . Janicik, 305 Pa. Super, at 129, 451 A.2d at 454.

      . Pa.R.C.P. 1702(1).

      . Temple University v. Pennsylvania Department of Public Welfare, 30 Pa. Commw. 595, 603, 374 A.2d 991, 996 (1977) (123 members sufficient); ABC Sewer Cleaning Company v. Bell of Pennsylvania, 293 Pa. Super. 219, 438 A.2d 616 (1981) (250 members sufficient); Ablin Inc. v. Bell Telephone Company of Pennsylvania, 291 Pa. Super. 40, 435 A.2d 208 (1981) (204 plaintiffs sufficiently numerous).

      . Janicik, 305 Pa. Super, at 132, 451 A.2d at 456.

      . Pa.R.C.P. 1702(2).

      . Janicik, supra at 133, 451 A.2d at 457.

      . Weismer by Weismer v. Beech-Nut Nutrition Corporation, 419 Pa. Super. 403, 615 A.2d 428 (1992).

      . Janicik, supra 133 n.5, 451 A.2d at 457 n.5.

      . D’Amelio v. Blue Cross of Lehigh Valley, 414 Pa. Super. 310, 606 A.2d 1215 (1992).

      . See Weismer by Weismer v. Beech-Nut Nutrition Corporation, 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992).

      . Cook v. Highland Water and Sewer Authority, 108 Pa. Commw. 222, 233-34, 530 A.2d 499, 504 (1987).

      . DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 404, 676 A.2d 1237, 1242 (1996).

      . Pa.R.C.P. 1702(4).

      . Pa.R.C.P. 1709.

      . Janicik, 305 Pa. Super, at 136, 451 A.2d at 458.

      . Janicik, 305 Pa. Super. at 136-37, 451 A.2d at 458.

      . Pa.R.C.P. 1708(c).

      . Janicik, supra at 141, 451 A.2d at 461.

      . Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972).

      . Id. (citing Buchanan v. Brentwood Federal Savings and Loan Assoc., 457 Pa. 135, 160, 320 A.2d 117, 131 (1974)),

      . Janicik, 305 Pa. Super. at 142, 451 A 2d 462.

      . Pa.R.C.P. 1708(a)(6).

      . Pa.R.C.P. 1708(a)(7).

      . See Kelly v. County of Allegheny, 519 Pa. 213, 215, 546 A.2d 608, 609 (1988) (Trial court erred in refusing to certify a class on the grounds that the class members’ average claim was too small in comparison to the expenses incurred.).

      . Section 1711 (a) provides in part as follows:
      “Required benefits
      “(a) Medical Benefit — An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except recreational vehicles not intended for highway use, motorcycles, motor-driven cycles or motorized pedalcycles or like type vehicles, registered and operated in this Commonwealth, shall include coverage providing a medical benefit in the amount of $5,000.

      . 1 Pa.C.S. §1501 etseq.

      . 1 Pa.C.S. §1921(a-c).

      . Pennsylvania Associated Builders and Contractors Inc. v. Commonwealth Department of General Servcies, 593 Pa. 580, 591, 932 A.2d 1271, 1274 (2007).

      . See 75 Pa.C.S. §1787(a); see also, Kleinberg v. SEPTA, 765 A.2d 405 (Pa. Commw. 2000).

      . See sections 1711(a), 1712(1) and 1787.

      . Danko v. Erie Insurance Exchange, 428 Pa. Super. 223, 229, 630 A.2d 1219, 1222 (1993).

      . See In re SEPTA MVFRL Interest Litigation, 2010 Pa. Commw. Lexis 270 (Pa. Commw. 2010) (self-insurer SEPTA is subject to the interest provisions of the MVFRL.).

      . Pittsburgh Neurosurgery Associates Inc. v. Danner, 733 A.2d 1279 (Pa. Super. 1999).


source: Caselaw Access Project

author: VICAN, J,

license: Public Domain

text:
    Commonwealth v. Smith

      E. David Christine Jr., district attorney, for Commonwealth.

      George Royle IV, for defendant.
    June 18, 2010
   VICAN, J,

On September 3, 2009, Wesley Smith (defendant) was arrested and charged with multiple counts of aggravated assault, simple assault, terroristic threats with intent to terrorize another, disorderly conduct creating a hazardous or physically offensive condition, recklessly endangering another person and public drunkenness and similar misconduct. The charges are the result of a 911 call regarding a possible domestic dispute atHC 1, Box 1600, Kuhenbeaker Road (across from Golf Cart Business), in Blakeslee, Monroe County, Pennsylvania. The Pocono Mountain Regional Police Department (PMRPD) dispatched two officers to the scene to investigate and they were confronted by defendant who pointed a gun in their direction. Defendant was arrested on September 3, 2009 and released on bail on September 4, 2009. A preliminary hearing was held on October 8, 2009, before Magisterial District Judge Richard Claypool and the charges were bound over to court.

On November 9, 2009, a criminal information was filed formally charging defendant with two counts of aggravated assault, 18 Pa.C.S. §2702(A)(6), (F2); two counts of simple assault, 18 Pa.C.S. §2701(A)(3), (M2); two counts of terroristic threats with intent to temorize another, 18 Pa.C.S. §2706 (A)(1), (Ml); and two counts of disorderly conduct creating a hazardous or physically offensive condition, 18 Pa.C.S. §5503(A)(4), (M3). The charges of public drunkenness and similar misconduct and recklessly endangering another person were not included in the criminal information. (See Monroe County docket entries, p. 4.) Defendant filed an omnibus pretrial motion on December 8, 2009, which included a request for bill of particulars, pretrial discovery, and a motion in limine to preclude “the Commonwealth witnesses from claiming or stating or suggesting that the defendant was drunk, inebriated, under the influence of alcohol — or any similar testimony.” (Omnibus, 12/8/09, p. 3.) On December 29, 2009, the Commonwealth filed a response to defendant’s request for bill of particulars.

A hearing with respect to defendant’s requests for bill of particulars, pretrial discovery, and the motion in limine was held on January 12, 2010, at which time defendant’s request for bill of particulars and pretrial discovery requests were resolved. Accordingly, the only matter remaining to be decided by this court is defendant’s motion in limine. At the conclusion of the hearing, the parties were directed to file briefs in support of their respective positions on the motion in limine within seven days. On January 15, 2010, the Commonwealth filed a motion for leave to amend information. As a result, our decision on defendant’s omnibus pretrial motion was held in abeyance until after the February 5,2010 hearing on the Commonwealth’s motion to amend.

The relevant facts of this case are that on September 3, 2010, Officers Jeff Papi and Derek Chaffee of the Pocono Mountain Regional Police Department (PMRPD) were dispatched to a domestic dispute on Kuhenbeaker Road in Blakeslee, Monroe County, Pennsylvania. The officers arrived at 10:24 p.m. and attempted to locate the residence. Two other residences were checked prior to finding the one in question, which was identified as HC 1, Box 1600, Kuhenbeaker Road, Blakeslee. Officers Papi and Chaffee approached the residence on foot along side of Kuhenbeaker Road, walked across the front yard to the driveway. There was an outside porch light on at the front of the residence. As Officer Papi attempted to walk onto the deck to make contact with someone, he heard a male voice yell out “Who the fuck is on my property?” When Officer Papi turned to look in the direction of the driveway behind him, he observed a white male standing behind a pickup truck pointing a gun at him. The man was later identified as Wesley Smith. Mr. Smith continued yelling “Who the fuck is on my property?” As Officer Papi took immediate cover at the corner of the residence, he yelled back at Mr. Smith saying that he was a police officer. Both officers yelled “police” several times. Officer Papi, with his firearm drawn, then re-engaged Mr. Smith from his point of cover and observed that Mr. Smith was still pointing a handgun in his direction. The officers repeatedly told Mr. Smith that they were police officers and ordered him to “put the gun down”. Mr. Smith did not comply. Instead, he bent down towards the ground and disappeared. When Mr. Smith stood back up, he put his hands in the air. Officer Papi ordered Mr. Smith not to move, but he began to walk away from the residence behind the pickup truck. Officer Papi repeatedly told him “Don’t move!” At this time, Mr. Smith walked out into the open with his hands up but continued to say “What the fuck are you doing on my property?” The investigation later revealed that Mr. Smith had been advised by Deanna Terlesky that she had called the police. As Officer Papi approached Mr. Smith, he smelled a strong odor of alcoholic beverage emanating from Mr. Smith’s body. Even after being taken into custody, Mr. Smith continued to yell profanities. The officers found a 9 mm handgun on the ground with ten rounds of 9 mm ammunition in the magazine. (Affidavit of probable cause, 9/4/09.)

At the February 5, 2010 hearing, Officer Derek Chaffee testified that he and Officer Papi were both in full patrol uniform when they approached Mr. Smith’s residence. (Notes of testimony, 2/5/10, p. 28.) Officer Chaffee also testified that when he heard someone (Mr. Smith) yell “[W]ho the fuck is on my property?” he “turned to look from the direction. The voice came from — which is the front yard which we just came from where saw an individual standing pointing a gun at Officer Papi’s direction.” (N.T., 2/5/10/, pp. 30, 46.) Officer Chaffee stated that he immediately began to draw his firearm and yelled “police, police. Drop the gun.” (N.T., 2/5/10, p. 30.) When Mr. Smith heard his voice, he turned toward Officer Chaffee pointing the gun in his direction. Officer Chaffee took cover behind a vehicle that was parked in the driveway. (N.T., 2/5/10/, p. 30.) Officer Chaffee further testified that after Mr. Smith was taken into custody and as he was holding onto him, he physically had to hold Mr. Smith because he was stumbling and he would lose his balance. (N.T., 2/5/10, p. 32.) Officer Chaffee also noticed that Mr. Smith’s speech was “very slurred”; his “words were jumbled together”; “he had glassy eyes”; and his breath smelled “of alcoholic beverages as well.” (N.T., 2/5/10, p. 32.) Mr. Smith also had to be assisted to the police vehicle. On direct examination, Officer Chaffee testified:

“Q: Could you describe what you had to do to assist him?
“A: I had to hold onto him the entire time. I had an arm underneath his arm holding him up a little bit. He was — he would stumble and kind of trip....
“Q. And you mentioned earlier that he was stumbling and you had to hold onto him. Could you describe specifically how he was stumbling?
“A. He would, as we were standing in one place, he would sway back and forth a little bit. He would try and take a step and lose his balance. He had lack of physical control.” (N.T., 2/5/10, p. 34.)

Following the February 5, 2010 hearing, the parties were given an extension of time within which to submit briefs with respect to the Commonwealth’s motion to amend the criminal information. The Commonwealth filed a brief on motion to amend the information and defense’s habeas petition on March 31, 2010; however, defendant has not filed any supporting brief. We are now ready to dispose of this matter.

DISCUSSION

We will first address the Commonwealth’s motion to amend since the decision on that motion will guide our decision relative to defendant’s motion in limine.

Commonwealth’s Motion To Amend Information

In its motion to amend, the Commonwealth seeks permission to amend the criminal information to include a charge of public drunkenness, 18 Pa.C.S. §5505. However, the concession made by the Commonwealth in its brief on motion to amend the information renders this motion moot. Specifically, the Commonwealth concedes that it is unable to establish that defendant appeared in a “public place” as required by the statute for purposes of proving a charge of public drunkenness. (Brief, 3/31/10, p. 1.) Accordingly, the Commonwealth’s motion to amend information is moot.

Next, we will address defendant’s omnibus pretrial motions.

Request for Bill of Particulars

On December 8, 2009, defendant filed an omnibus pretrial motion which included a request for a bill of particulars seeking: (1) “the names and addresses of the persons whose home the police officers visited immediately before coming to defendant’s home on the night of the incident alleged in the information;” (2) “at whom the defendant is alleged to have pointed a gun” and “the name(s) of the officer who will testify that the gun was pointed at both officers;” and (3) “what threat was communicated with the intent to terrorize the officers.” (Omnibus, 12/8/09, ¶¶4-6, pp. 2-3.)

Initially, the Commonwealth argues that defendant’s request for bill of particulars is untimely. (Bill of particulars, 12/29/08, n.l, p. 1.) We agree.

Pa.R.C.P. 572(a) of provides as follows:

“(a) A request for a bill of particulars shall be served in writing by the defendant upon the attorney for the Commonwealth within seven days following arraignment. The request shall promptly be filed as provided in Rule 9022 subsequent to service upon the attorney for the Commonwealth.
“(b) The request shall set forth the specific particulars sought by the defendant, and the reasons why the particulars are requested....
“(d) When a motion for relief is made, the court may make such order as it deems necessary in the interests of justice.” Pa.R.C.P. 572. (emphasis added)

In the instant matter, defendant was arraigned on November 9,2009. Defendant had seven days from the date of arraignment to request a bill of particulars; however, defendant did not file his request until December 8,2009 (22 days after the expiration of the seven-day period). Clearly, the request for a bill of particulars was untimely. Even so, as a courtesy to the defense, the Commonwealth filed a response to defendant’s request for bill of particulars on December 29, 2009.

The Commonwealth argues that the information requested by defendant constitutes discovery requests and as such, the information requested is not a proper subject to which a bill of particulars may be directed. (Bill of particulars, 12/29/09, ¶¶1-2, pp. 1-2.) On January 12, 2010, a hearing was held during which the district attorney indicated that he would have the investigating officers contact defense counsel to provide the names of people interviewed and witnesses (if any). The district attorney also advised defense counsel that both Officer Papi and Officer Chaffee would be testifying at trial. Defense counsel indicated that he was satisfied.

Based on the foregoing, we find that although the request for bill of particulars was untimely, the Commonwealth has adequately responded to defendant’s requests in writing on December 29, 2009, and at oral argument on January 12, 2010. Consequently, defendant’s request for bill of particulars is moot and nothing further remains to be decided at this time.

Motion in Limine

Defendant seeks to “preclude the Commonwealth witnesses from claiming or stating or suggesting that the defendant was drunk, inebriated, under the influence of alcohol — or any similar testimony.” (Omnibus motion, 12/8/09, p. 3.) Defendant argues that absent the charge of public drunkenness, “any such evidence would be highly prejudicial to defendant and could not be remedied by a cautionary instruction to the jury.” (Omnibus motion, 12/8/09, p. 3.)

Commonwealth admits in its brief that it cannot establish that defendant was in a “public place” (a critical element of the charge of public drunkenness) as required by the statute. (Brief on motion to amend, 3/31/10, p. 5) Therefore, inasmuch as a prima facie case cannot be established by the Commonwealth on the offense of public drunkenness, any evidence that defendant was drunk, inebriated, under the influence of alcohol — or any similar testimony must be excluded. However, the Commonwealth argues that evidence of defendant’s alleged intoxication is still be admissible to show recklessness and/or to impeach the credibility of defendant should he testify in his own defense. Thus, we must determine whether evidence of defendant’s intoxication should be admitted at trial to prove the charge of reckless endangerment and/or to impeach defendant’s credibility should he testify in his own defense.

In Pennsylvania, a person is guilty of recklessly endangering another person (a misdemeanor of the second degree) if he/or she “recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. §2705. “Serious bodily injury” is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” Commonwealth vs. Hopkins, 747 A.2d 910, 915 (Pa. Super. 2000), citing 18 Pa.C.S. §2301. To sustain a conviction for recklessly endangering another person, “the Commonwealth must prove that the defendant had an actual present ability to inflict harm and not merely the apparent ability to do so.” Id. “Danger, not merely the apprehension of danger, must be created.” Id. at 916. “The mens rea for recklessly endangering another person is ‘a conscious disregard of a known risk of death or great bodily harm to another person.’” Id., citing Commonwealth v. Peer, 454 Pa. Super. 109, 115, 684 A.2d 1077, 1080 (1996). “Brandishing a loaded firearm during the commission of a crime provides a sufficient basis on which a fact-finder may conclude that a defendant proceeded with conscious disregard for the safety of other, and that he had the present ability to inflict great bodily harm or death.” Id.

The Commonwealth argues that evidence of defendant’s intoxication, in addition to his actual conduct, should be admissible to prove recklessness. We disagree. In the present case, it was dark when Officers Chaffee and Papi responded to a reported domestic dispute at defendant’s residence. Officer Derek Chaffee testified that as he and Officer Papi were approaching the residence, he heard someone yell “[W]ho the fuck is on my property?” Officer Chaffee stated that as he turned to look in the direction of where the voice came from (which was the front yard where they had just been), he saw an individual (later identified as the defendant) standing pointing a gun in Officer Papi’s direction. (N.T., 2/5/10/, pp. 30, 46.) Officer Chaffee stated that he immediately began to draw his firearm and yelled “police, police. Drop the gun.” (N.T., 2/5/10, p. 30.) When defendant heard his voice, he turned toward Officer Chaffee pointing the gun in his direction. Officer Chaffee immediately took cover behind a vehicle that was parked in the driveway. (N.T., 2/5/10/, p. 30.) At this point, defendant bent down towards the ground and disappeared. When he stood back up, he put his hands in the air and although he was ordered not to move, defendant walked out into the open with his hands still in the air. (Affidavit, 9/4/09.) After defendant was taken into custody, the officers found a 9 mm handgun on the ground with 10 rounds of 9 mm ammunition in the magazine. (Affidavit, 9/4/09.)

We find that this evidence is more than sufficient to allow the fact-finder to find defendant guilty of recklessly endangering another person. The fact that defendant brandished a loaded 9 mm handgun at the police officers is sufficient to show that he acted recklessly and that he had an actual present ability, and not merely the apparent ability, to place the officers in danger of death or serious bodily injury. Such actions are clearly enough for the fact-finder to conclude that defendant displayed “a conscious disregard of a known risk of death or great bodily harm to another person.” For the foregoing reasons, we find that Officers Papi and Chaffee may testify about defendant’s conduct of using profanity and of pointing the 9 mm handgun at them. Flowever, with respect to evidence of defendant’s alleged intoxication, we find that such evidence is not necessary to establish defendant’s reckless conduct and that it would be more prejudicial than probative. Therefore, evidence of defendant’s intoxication with respect to the charges of recklessly endangering another person and disorderly conduct must be excluded.

The Commonwealth also seeks to present evidence of defendant’s intoxication in its case in chief in order to establish a foundation of evidence to justify its cross-examination of defendant on his drinking for purposes of impeaching his credibility. (Com.’s brief on defense’s motion in limine, 1/19/10, p.4.)

The Commonwealth asserts that the odor of alcohol on one’s breath, glassy eyes, constant swaying, and slurred speech, in addition to impaired judgment is “conduct that, under Pennsylvania law, routinely proves that a person was ‘manifestly under the influence of alcohol ... to the degree that he may endanger himself or other persons or property’ in fulfillment of the public drunkenness statute.” (Com.’s brief on motion to amend information and defense’s habeas petition, 3/31/10, p. 4, citing Commonwealth v. Wright, 832 A.2d 1104 (Pa. Super. 2003).) Even though the Commonwealth concedes that it cannot establish the charge of public drunkenness in this case, it argues that such “conduct also ‘reasonably establishes intoxication,’ rendering the evidence of intoxication admissible for impeachment purposes . . . .” (Com. ’s brief, 3/31/10, p.5, citing In the Interest of M.M., 439 Pa. Super. 307, 317, 653 A.2d 1271, 1276-77 (1995); Lock v. City of Philadelphia, 895 A.2d 660, 665-66 (Pa. Commw. 2006).)

In Commonwealth v. McGuire, 302 Pa. Super. 226, 448 A.2d 609 (1982), the court states that a fact witness may be questioned on cross-examination about his or her alcohol consumption in order to place in evidence the witness’ ability to observe and recall. In the Interest of Wright, 265 Pa. Super. 278, 401 A.2d 1209, 1214 (1979), the court stated:

“[Ejvidence of drinking is admissible only because it lays a foundation for an opinion of the intoxication of the witness. Intoxication, which numbs the faculties and thus affects the witness’ ability to observe and recollect, is the evidence necessary to impeach a witness’ credibility.” (citing Commonwealth v. Godfrey, 177 Pa. Super. 640, 644, 112 A.2d 434, 436 (1955) and 3A Wigmore, Evidence, §933 (Chadbourn rev. 1970)).

Presently, the Commonwealth intends to present the testimony of Police Officers Papi and Chaffee regarding their observations of defendant at the time of the incident. At the February 5, 2010 hearing, Officer Chaffee presented testimony that defendant was slurring his speech, he had an odor of alcohol on his breath, he had glassy eyes, he was constantly swaying, and he had a lack of physical control with a severe inability to maintain his balance such that he had to be physically held up by the police. (N.T., 2/5/10, pp. 32-33.) It is this evidence that the Commonwealth seeks to present at trial in order to establish defendant’s recklessness and to establish a foundation to justify its cross-examination of defendant on his drinking. (Com.’s brief on defense’s motion in limine, 1/19/10, p. 4.) The Commonwealth argues that “evidence of the defendant’s intoxication implicates his ability to accurately recall the events of the night of the alleged assaults, so it becomes relevant impeachment evidence when he takes the stand.” (Com.’s brief on defense’s motion in limine, 1/19/10, p. 3.)

After reviewing the applicable case law, it is clear that intoxication, which can numb the faculties and thus, a witness’ ability to observe and recollect facts, is evidence that is necessary to impeach a witness’ credibility. Wright, supra. Therefore, if a defendant takes the stand as a fact witness, he may be cross-examined about his alcohol consumption in order to place his credibility into question. McGuire, supra. Accordingly, we find that if defendant takes the stand as a fact-witness, the Commonwealth may cross-examine him about his alcohol consumption for the limited purpose of placing into evidence his ability to observe and recall the events on the night in question.

Accordingly, defendant’s motion in limine as to evidence of intoxication is denied in part and granted in part.

ORDER

And now, June 18, 2010, upon consideration of the Commonwealth’s motion to amend information and defendant’s request for bill of particulars and motion in limine, we find as follows:

(1) Commonwealth’s motion to amend information is moot.

(2) Defendant’s request for bill of particulars is moot.

(3) Defendant’s motion in limine is denied with respect to impeaching the credibility of defendant. Accordingly, evidence of defendant’s alleged intoxication shall be admissible to establish a foundation for cross-examination of defendant should he take the stand as a fact-witness, and only for the limited purpose of placing into evidence his ability to observe and recall the events on the night in question.

(4) Defendant’s motion in limine is granted with respect to the charges of recklessly endangering another person and disorderly conduct. Thus, evidence of defendant’s alleged intoxication shall not be admissible to prove that defendant acted in a reckless manner.

      . The Commonwealth and defendant’s attorney agree that all charges were bound over to court by the magisterial district judge, including the charge of public drunkenness. However, the charges of public drunkenness and similar misconduct, disorderly conduct creating a hazardous or physically offensive condition, and recklessly endangering another person do not appear on the official transcript (OTN K 990838-2) filed by Magisterial District Judge Richard Claypool. (See OTN K 990838-2, dated 10/8/09.) Nevertheless, the Monroe County Common Pleas docket entries indicate that all charges, including public drunkenness and similar misconduct, disorderly conduct and recklessly endangering another person were, in fact “held for court” on October 8, 2009. (See docket entries, Com. v. Smith, no. 1769 Criminal 2009, p. 4.)


author: HODGE, J.,

text:
    Warso v. Albert

      Larry J. Puntureri and Gene G. Dimeo, for plaintiff.

      Susan M. Papa, for defendant.
    June 23, 2010
   HODGE, J.,

This case is before the court for a hearing on a petition challenging the maternal grandparents’ partial custody rights. The factual background in the case can be summarized as follows: John S. Warso and Michelle Lee Albert are the natural parents of the minor child (J.R.A.) in question; J.R.A. was born on March 4, 2005. On November 29, 2007, within two years of the minor child’s birth, the paternal grandparents filed a complaint for partial custody. Preceding the grandparents’ complaint, the father and mother were engaged in custody litigation, with each party fighting for primary legal custody of J.R.A. On November 29, 2007 an order was issued after a custody conference to consolidate the complaints as 10401 and 11701 of 2007 respectively.

The November 29, 2007 order additionally granted the paternal grandparents shared legal custody of J.R. A. with the natural mother and father. The court held that because both biological parents had significant substance abuse problems throughout the course of their custody litigation, granting the paternal grandparents shared legal custody was in the best interest of the child. The order specifically provided that the “paternal grandparents shall enjoy legal custody with the natural parents ... [i]f the natural father ceases to reside with at least one of the paternal grandparents, the paternal grandparents shall have partial custody, two overnights each week.

In 2008 Mother voluntarily enlisted into the United States Military, and left for basic training on June 10 of the same year. Subsequent to her enlistment, Mother presented the court with a consent agreement which proposed a modification to the current custody order. The agreement recommended that the maternal grandparents enjoy partial custody of J.R.A. in place of Mother, pursuant to the outstanding orders of court. None of the parties involved opposed the modification at that time; the court consequently granted Mother’s request on June 16, 2008, with all other provisions of the previous orders of court still in effect.

Shortly after the modification was granted, however, all the relationship between all parties involved became increasingly destitute. The natural father and his parents struggled with the natural mother and her parents over custody visits, medical treatments, education, and practically every other aspect of the child’s life. As a result both parties failed to maintain communication with the other, each believing they were acting with the best interests of the child. The maternal grandparents, by and through their daughter, petitioned this court to again modify the custody order by allowing the maternal grandparents to intervene and by granting the natural mother primary custody. This court allowed the maternal grandparents to join in the above proceedings as defendants, but provided that Father, Mother and paternal grandparents continue to have legal custody of J.R. A.

Even though the most recent custody order maintained shared legal custody between Father, Mother, and paternal grandparents, maternal grandparents continue to retain the notion that they too have legal custody of J.R. A. Consequently, orders of court have not been obeyed and communication between the parties has deteriorated to practically nothing. While neither party is without fault, this court must make a determination, regarding the most appropriate custody arrangements for the minor child, based on the best interest of the child.

The best interest of the child is determined based upon consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being. Arnold v. Arnold, 847 A.2d 674, 677 (Pa. Super. 2004). Such consideration must be made on a case by case basis. Moore v. Moore, 535 Pa. 18, 634 A.2d 163 (1993). Additionally, the court is justified in making changes to an existing custody order without proof of substantial change in circumstances when it is shown that the modification serves the best interest of the child. Swope v. Swope, 455 Pa. Super. 587, 689 A.2d 264 (1997).

While the parties in this action assert that the court should apply the Gruber test, established by the court in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), to analyze the best interests of the child, this court must point out that the Gruber test is more applicable in cases where a “custodial” parent wishes to relocate the child, and not where the parent seeks a modification to the custody order. See e.g., Clapper v. Harvey, 716 A.2d 1271, 1274 (Pa. Super. 1998).

However, the factors outlined in Gruber are suitable elements to consider in appropriate cases as part of an overall best interest analysis. Where a modification to a custody order is proposed by either party, a court looks to the physical, intellectual, moral and spiritual well-being, and makes a determination as to how these interests may best be served, Swope, 455 Pa. Super. at 591, 689 A.2d at 265.

The paternal grandparents’ assertion is that they should maintain shared legal custody of J.R.A. because they have been involved in caring for the child since he was born. They made the effort to step in and intervene during a perilous time in the child’s life and have continued to care for him since. It is important to note the significance of a familiar and stable family environment, which has been provided to J.R.A. by paternal grandparents, especially during the school year when a child as young as J.R.A. needs consistent supervision and aid in the completion of homework, school projects, and other educational activities. See e.g, E.A.L. v. L.J.W., 443 Pa. Super. 573, 662 A.2d 1109 (1995). Additionally, Father asserts that he is the best person to care for the child since he lives at home with his parents, has made a better lifestyle for himself, is actively involved in child’s education, and would do more to establish communication between himself and Mother.

The maternal grandparents easily establish that they too love and care for J.R.A. Additionally, J.R.A. has a wonderful relationship with his half brother, who he sees while staying at his maternal grandparents residence. Maternal grandparents, along with Mother, feel that in order to continue to build a relationship between Mother and J.R.A. while she serves this country overseas, they too should be awarded shared legal custody. This court does not take lightly Mother’s burden of traveling away from her children and family to serve her country, and fully recognizes the personal strains such a commitment can cause. To maternal grandparents’ detriment, however, is the fact that maternal grandmother will not communicate with paternal grandparents, and has even refused to allow Father to participate in school activities during “her time” with J.R.A.

Evidence presented by all parties allows this court to conclude that while Mother is away, maternal grandparents make important decisions regarding J.R.A.’s welfare, on the basis that they are acting on Mother’s behalf, and don’t communicate these decisions to Father or paternal grandparents. In fact, testimony easily established that maternal grandmother’s relationship with the child’s natural father is the underlying basis for much of the current litigation.

This court is forced to take into consideration the fact that Mother is deployed out of this country and will continue as such for an indefinite period of time. It is not the practice of this court to make determinations based on the possible occurrence of future circumstances; it can only utilize the present facts to determine what is in the best interest of the child. This court finds that the present circumstances indicate that the natural father is capable and willing to care for the minor child, and that it would be unjustifiable to deny him the opportunity to do so.

In the event that Mother returns home from her current military position, this court will anticipate future petitions for modification to the current order. However, the anticipation of future litigation does not prevent this court from issuing a final order and awarding the natural father and paternal grandparents shared legal custody of J.R.A.

For these reasons, the court ratifies its previous order, and grants Father and paternal grandparents shared legal custody. Mother and maternal grandparents can exercise shared physical custody as maternal grandparents are granted partial physical custody of the minor child. Maternal grandparents shall have custody of J.R.A. on the first, third and fourth weekends of every month, with parties additionally rotating visitations on a weekly basis during the summer months. The court feels that this visitation time is appropriate and necessary in order to continue to establish a good relationship with maternal grandparents, and give J.R.A. the opportunity to continue to spend time with his half brother.

ORDER

And now, June 23,2010, these cases being before the court for a custody hearing on June 16, 2010 with Attorney Lany Puntureri appearing on behalf of John S. Warso; Attorney Susan M. Papa appearing on behalf of Michele Lee Albert, John Albert and Rosemary Albert; and Attorney Gene Dimeo appearing on behalf of John A. Warso and Mary Lou Warso, and with the parties not having reached an agreement; it is hereby ordered, adjudged and decreed that:

(1) The Father and the paternal grandparents shall have shared legal custody of the minor child, Joseph Albert born March 4, 2005. All parties shall execute any and all documents or releases necessary to effectuate legal custody, including but not restricted to, authorizations and/or releases for school reports, medical reports, insurance documents and documents required by state, local or federal authorities.

(2) During the school year maternal grandparents shall have partial custody of the minor child on the first, third and fourth weekend from Friday at 5 p.m. until Sunday at 5 p.m.

(3) During the summer, parties shall rotate a schedule of one week on and one week off custody of the minor child.

(4) In any transporting of the minor child, all parties and anyone involved with such transportation shall comply with the laws and regulations of the Commonwealth of Pennsylvania including those regarding child safety restraint apparatus in any vehicle used to transport the child.

(5) The parties are directed to fully cooperate with each other in fulfilling the requirements of this order and all other orders in connection with this matter. Failure to do so may result in sanctions being imposed by the court upon the offending party including suspension of custody and payment of attorney’s fees.

(6) No party shall remove the minor child from the jurisdiction of this court with the intent of changing the physical residence of the minor child without written consent of the other party or the court.

(7) The parties shall read and fully comply with the provisions of the appendix to custody order which is attached hereto and filed with this order.

(8) The prothonotary shall properly serve notice of this order and opinion by regular mail or personal service upon counsel of record and any party not represented by counsel at their last known address.

APPENDIX TO CUSTODY ORDER

Certain rules of conduct generally applicable in custody matters are set forth below and are binding on all parties. The breach of any rule may subject the breaching party to contempt of court proceedings or form a basis to modify the custody order. If these general rules conflict with any specific provision of the custody order, the order shall prevail.

Rule 1. The custody or visitation provisions of the foregoing custody order are to be considered as the minimum requirements. However, the parties are free to expand the provisions by mutual agreement. No party can unilaterally, i.e., as he or she pleases, increase or decrease periods of custody or visitation.

Rule 2. The parties shall not undertake or permit the influencing of the mind of the child(ren) against any party. Any communication or statement which is in any manner derogatory to the other party, obscene, or profane shall not be made to or in the presence of the children).

Rule 3. The parties shall not argue or engage in heated discussion in the presence of the child(ren) or when the parties are exercising their communication rights with the child(ren).

Rule 4. The parties shall not question the child(ren) as to the personal behavior of the other party, except as necessary to insure the personal safety and welfare of the child(ren). No child shall be used as an informant or carrier of tales to either party.

Rule 5. The parties may not make extravagant promises to the child(ren) for the purpose of influencing the child(ren)’s loyalty at the expense of the other party. Any promise made to the child(ren) by either party should be made only with the full intention of expectation of fulfilling the promise.

Rule 6. The parties should always consider the child(ren)’s best interest and should act accordingly. A child involved in a custody dispute needs positive assurance from his or her parents that he or she is loved and that it is not his or her fault that any differences exist between the parents.

Rule 7. The parties are reminded that children learn from what they see or experience at the hands of their parents or other relatives. If children are to be taught proper moral, spiritual and ethical conduct, it cannot be effectively accomplished if the parties themselves indulge in questionable conduct.

Rule 8. When exercising custody or visitation rights with the child(ren), the parties must assure that the child(ren) continue(s) to attend school, church and other activities considered beneficial to the child(ren)’s overall growth and development.

Rule 9. Custody or visitation rights should be exercised on a regular, reasonable and acceptable basis. If it is impossible to exercise a period of custody or visitation, the other party should be immediately notified so that the disappointment or anxiety to the children) that would result from a failed visit is reduced.

Rule 10. The party who has physical custody of the child(ren) should encourage, prepare and have the child(ren) available at the designated times and places so that partial custody or visitations occur smoothly.

Likewise, the party exercising partial custody or visitation rights should encourage, prepare and return the child(ren) promptly at the designated times and places.

Rule 11. If occasions arise with either party which cause conflicts with the custody or visitation schedule, the parties should be flexible and agree upon make-up time.

Rule 12. A party or the person responsible for transporting the child(ren) from and to the custodial residence must refrain from the use of alcohol and possess a valid driver’s license with current operating privileges. Any party or designee who arrives to pick up the child(ren) and has used alcohol excessively, is intoxicated or does not possess a valid driver’s license automatically forfeits that custody or visitation period. Any party or designee who returns the children) and has been drinking alcohol beverages excessively, is intoxicated or does not possess a valid driver’s license automatically forfeits the next scheduled custody or visitation period. Chronic violations of this rule may result in a suspension of custody or visitation.

Rule 13. Each party must notify the other party if any emergency or illness requiring a physician’s attention should occur to the child(ren) while in their physical custody.

Rule 14. Each party should encourage telephone and other communication between the child(ren) and the other party. Telephone calls should occur at reasonable intervals and reasonable hours such as between 5:30 p.m. and 8:30 p.m. except for emergencies.

Rule 15. The party who has physical custody of the child(ren) must exercise the daily parental responsibilities. However, unless otherwise ordered, both parents should consult with one another on major decisions affecting the children) such as education, religious training and medical treatment.

Rule 16. Each party must notify the other party of any change in their residence or phone number within 72 hours after any such change.

Rule 17. The parties are prohibited from placing or displaying identifying information as to any minor child(ren), or photograph of any child(ren) on any website, internet dating site, internet informational site, or any other internet hosting site, which may be viewed by the public at large. This rule does not prohibit a party utilizing internet service for transmitting photographs to any email or other information by way of the internet to known private parties and/or known, private entities.

      . In Parker v. MacDonald, 344 Pa. Super. 552, 496 A.2d 1244 (1985), the Superior Court determined that anticipation of future litigation does not prevent a court from issuing a final order.