author: MASSIAH-JACKSON, J.,

text:
    Bauer v. Herr-Voss Stamco, Inc.

      C.P. of Philadelphia County,
    July Term, 2014
    No. 01169
    Jan. 6, 2015-
   MASSIAH-JACKSON, J.,

ORDER

And now, this 6th of January, 2015, after consideration of the preliminary objections filed by Herr-Voss Stamco, Inc., and plaintiffs’ responses thereto, after review of all supplemental memoranda and Exhibits, and oral argument held December, 3, 2014, and, for the reasons set forth in court Exhibit “A”, attached hereto, it is hereby ordered that the preliminary objections are overruled in their entirety. The defendant shall file an answer to the first amended complaint within twenty (20) days from the date this order is docketed.

Court Exhibit “A”

Mr. Francis Bauer was employed at Prior Coated Metals, Inc., Allentown, Pennsylvania, where he operated industrial metal processing machines. On December 4, 2013, Mr. Bauer was operating a Strand Extensioner. This machinery is part of a slitting line in metal coil processing. Slitting is a process that uses rotating knives to cut metals and produces “tightly wound, straight-sided slit coils of metal for industrial use.” First amended complaint, Paragraphs 9, 10, 11.

When Mr. Bauer was cleaning the rollers of the Strand Extensioner, the cleaning towel was pulled into the rollers. Mr. Bauer’s gloved right hand was also pulled into the slitter machinery. As a result of this accident, Mr. Bauer suffered catastrophic and permanent physical and emotional injuries, including inter alia, crush injuries to his hand, loss of four fingers, nerve damage, skin grafts, as well as past and future economic losses. Paragraphs 14, 18, 19,21-26.

In July, 2014, plaintiff-Bauer initiated this strict liability and negligence litigation against defendant-Herr-Voss Stamco, Inc. alleging that the defendant defectively and negligently designed, manufactured, sold, serviced, inspected and maintained the Strand Extensioner.

On December 3, 2014, at the request of the defendant, this court heard oral argument on two defense motions: a) defendant-Herr-Voss’ motion for reconsideration of the court’s order dated November 6, 2014, which denied the defendant’s petition to transfer venue (Control No. 14111876) and, b) defendant-Herr-Voss’ preliminary objections Pursuant to Rule 2179(a)(2). (Control No. 14092783). After careful consideration of all of the memoranda, supplemental memoranda, Exhibits and oral presentations submitted by all parties, this court concludes that venue is proper in Philadelphia County.

A. Forum Non Conveniens (Control No. 14111876)

On November 6, 2014, defendant’s petition to transfer venue to Lehigh County was denied when Her-Voss Stamco, Inc. was unable to meet its burden to establish that Philadelphia was more than merely inconvenient to this defendant, citing Bratic v. Rubendall, 99 A.3d 1 (Pa. 2014); Cheeseman v. Exterminator, Inc., 701 A.2d 156 (Pa. 1997).

In Zappala v. Brandolini Property Management, Inc., 909 A.2d 1272 (Pa. 2006), the Supreme Court relied on Cheeseman, supra to explain that a Rule 1006(d)(1) motion provides a trial court with discretion to transfer an action to another county if a defendant meets its burden with detailed information on the record. The record must demonstrate that the plaintiffs chosen forum is oppressive or vexatious. The Zappala Court at 909 A.2d 1283, quoted Cheeseman at 701 A.2d 162, by noting that the defendant may show that the plaintiff’s choice of forum is vexatious by:

“establishing with facts on the record that the plaintiff’s choice of forum was designed to harass the defendant, even at some inconvenience to the plaintiff himself. Alternatively, the defendant may meet his burden by establishing on the record that trial in the chosen forum is oppressive to him; for instance, that trial in another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of premises involved in the dispute. But, we stress that the defendant must show more than that the chosen forum is merely inconvenient to him.”

In the case at bar, defendant-Herr-Voss failed to provide an evidentiary foundation to support its argument that the burden of travel or time out of the office or a possible disruption to business or obtaining witnesses or sources of proof would be any greater if the trial were held in Philadelphia County than in Lehigh County. No record was presented for this court to weigh where plaintiff-Bauer’s co-workers or supervisors reside; or, the names of any of the Herr-Voss inspectors, mechanics and employees and where they are located; or, the location of documents, correspondence and records reflecting communications between defendant and Prior Coated Metals, Inc. and whether those documents are electronic or hard-copy or both; or, the location of the engineering plans and specifications, originals, modifications, and patent documents; or, the location of documents relating to Herr-Voss Corporation — electronic or hard-copy?

The Bratic Court clarified the requirements of forum non conveniens 99 A.3d at 6, noting “emphatically” that a plaintiffs choice of forum is entitled to weighty consideration. The party seeking to transfer has a burden to demonstrate “on the record’ (emphasis in original) the hardship claimed. This court disagrees that a decision based solely on google maps is appropriate. The Bratic Court commented at 99 A.3d 10, “distance alone is not dispositive.” While Lehigh County is not a neighbor of Philadelphia County, there was nothing presented in this record for this court to comprehend how travel for an hour is more than simply an inconvenience to any witness.

The Bratic Court noted at 99 A.3d 8, that the fact that the plaintiffs were not from Philadelphia was a peripheral factor to the issue of transfer. When considering access to proof, this court has personally presided on multiple occasions where large trucks, cars and airplanes have been brought into our courtroom or, if necessary, onto the exterior sidewalks for jury views. Most experienced attorneys find that 3-D animations, as well as video and photographs brought to the large screen in Philadelphia courtrooms provide clarity and understanding for the jurors and the expert witness testimony.

When considering access to justice in the Philadelphia Courts, 99 A.3d at 8, this complex litigation will be placed on track for trial in 24 to 36 months by the first judicial district’s differentiated case management protocol. The parties will be given discovery deadlines, expert deadlines and a trial date certain. All witnesses will have several months notice for pre-trial and trial scheduling.

Contrary to the notion proffered by Herr-Voss, the Supreme Court in Bratic clearly endorsed the presentation of affidavits to enable a court to have a record on which to consider how a potential witness’ personal life or business duties would be affected by trial in Philadelphia. 99 A.3d at 9.

With regard to medical issues, there is no question that records, including films and reports, are easily sent to counsel. It is most likely that experienced counsel for all parties will arrange for video depositions of medical providers at their hospitals or offices, and at their convenience. If the parties determine that a treating physician will come to the courtroom to provide live testimony, the Philadelphia Protocol for atrial date certain will enable any witness to be afforded several months notice for scheduling.

After considering the submissions from the parties, the order dated November 6, 2014, was reasonable in light of the memoranda and arguments of counsel. The judgment was not manifestly unreasonable. The motion for reconsideration is denied.

B. Preliminary Objections (Control No. 14092783)

Rule 2179(a)(2) of the Pennsylvania Rules of Civil Procedure states in pertinent part:

“Rule 2179. Venue
(a) Except as otherwise provided by an act of assembly, by Rule 1006(a.l) or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in ...
(2) a county where it regularly conducts business;”

When defendant-Herr-Voss filedpreliminary obj ections, the parties were provided time to engage in discovery relating to venue by deposition and otherwise. See, order dated October 15, 2014. Supplemental memoranda and Exhibits were filed and oral argument was heard on December 3, 2014.

Defendant-Herr-Voss’ contends that venue is not proper because it does not perform a sufficient quantity of acts in Philadelphia to “regularly conduct business” in the County. The supplemental discovery and exhibits make it clear that this privately-owned multimillion dollar enterprise successfully and strategically markets its equipment to Philadelphia customers and regularly engages in Philadelphia business. Not only does this defendant-Company sell industrial steel and metals to companies in Philadelphia for re-sale (a “service center”), but, defendant Herr-Voss also provides continuous and on-going technical services to customers in Philadelphia.

The corporate-designee, Ms. Christa Porter, disclosed business information (subject to a protective order) for the five years from 2009 through 2014, for all of defendant’s Philadelphia customers. Herr-Voss sells spare parts to Philadelphia companies, N.T. 26, 38; provides goods and services to Philadelphia companies N.T. 30; including service and calibration to levelers; and, roll and bearing changes, N.T. 41-43, 49, 50-52; and, service to shears, N.T. 48, 52, all to Philadelphia customers.

The documents and records supplied by this defendant demonstrate that Herr-Voss fulfills warranty obligations, service contracts and maintenance agreements with its Philadelphia customers — in addition to substantial industrial metal sales: December, 2008 — March 2009:

No information provided by Herr-Voss.

April, 2009 — December, 2009:

In August 2009, two service technicians spent three days replacing rolls and bearings on leveler equipment at a client’s facility;

December, 2009 — December, 2010:

In April 2010, two service technicians spent four days replacing rolls and bearings on leveler equipment at a client’s facility;
In June 2010, two service technicians spent four days replacing wedges and liners on HVS’s high-speed shear equipment at a client’s facility;

December, 2010 — December, 2011:

In April 2011, one service technician spent two days on site replacing rolls and bearings on leveler equipment at a client’s facility;
In June 2011, two service technicians spent three days replacing wedges and liners on shear equipment at a client’s facility;
In September 2011, one service technician spent a day replacing rolls on leveler equipment at a client’s facility;

December, 2011 — December, 2012:

In December 2011, one service technician spent three days troubleshooting and correcting equipment at a client’s facility;
In May 2012, one service technician spent two days calibrating leveler equipment at a client’s facility;
In June 2012, two service technicians spent three days replacing rolls and bearings on leveler equipment at a client’s facility;

December, 2012 — December, 2013:

In February 2013, one service technician spent one day evaluating leveler equipment at a client’s facility and advising the client on equipment repairs;
In March 2013, two service technicians spent two days calibrating leveler equipment at a client’s facility; and
In April 2013, two service technicians spent three days replacing wedges and liners on shear equipment at a clients’ facility.

December, 2013 — December, 2014:

Although sales of industrial metal and equipment are continuing, no explanation has been proffered why Herr-Voss ceased sending technicians into Philadelphia from the date of Mr. Bauer’s accident on December 4, 2013 through the date of oral argument on December 3,2014.

When determining whether a corporation regularly conducts business in a county, this court makes an assessment both as to quality and quantity of contacts. Venue is triggered when there is a continuous, although small amount of business activity in Philadelphia. This court concludes that there has been a substantial connection to new and existing Philadelphia customers — not random or fortuitous. For the past five years, Herr-Voss’ activities with Philadelphia County have been continuous.

Each case must be analyzed under the circumstances presented. Fractions and percentages are not dispositive. Our appellate courts note that a corporation may engage “regularly” even though the acts make up a small part of the total activity of the enterprise. The contacts, sales and revenues generated by Herr-Voss in Philadelphia have been purposeful and driven directly to further the business objectives of this defendant, e.g. Cantor v. American Honda Motors, 231 A.2d 140 (Pa. 1967); Zampana-Barry v. Donaghue, 921 A.2d 500 (Pa. Superior Ct. 2007).

While venue may be present in Beaver County, Butler County, Lehigh County and more, that does not negate the existence of proper venue in Philadelphia County. Venue is proper with the Court of Common Pleas of Philadelphia County. The preliminary objections filed by Herr-Voss Stamco, Inc. are overruled.


source: Caselaw Access Project

author: HERRON, J.,

license: Public Domain

text:
    Estate of Rucker

      C.P. of Philadelphia County,
    O.C. No. 1229 DE of 2013
    Jan. 12, 2015—
   HERRON, J.,

Introduction

The preliminary obj ections filed by the foreign fiduciary of a decedent’s estate being administered in Virginia raise the issue of whether this court has in personam jurisdiction over the fiduciary or over the Virginia estate to enforce the return of assets to a Pennsylvania decedent’s estate. For the reasons set forth below, this court lacks in personam jurisdiction over both the foreign fiduciary and the Virginia estate. The petition for the return of assets is therefore dismissed.

Factual Background

Doris Gunter-Rucker (“petitioner”) was appointed administratrix of the estate of her deceased husband, Elwood Rucker, by the Philadelphia Register of Wills on February 25, 2013. In October 2014, she filed a petition with the Philadelphia Orphans’ Court seeking a citation directed to Anthony Rucker as administrator of the Estate of Myrtle Greene to compel him to turn over assets from that estate that had been bequeathed to Elwood Rucker. According to the petition, Andrew Rucker resides in New Jersey. Decedent Myrtle Greene, who died on May 31, 2006, was a resident of Virginia. Myrtle Greene’s will was admitted to probate in Virginia. At some point, Anthony Rucker filed a complaint in Virginia for aid and guidance with the Circuit Court of King and Queen County as to the interpretation of Ms. Greene’s will. By order dated August 29, 2007, the Virginia court outlined its findings as to the specific bequests under that will, concluding that Myrtle Greene made the following bequests to Elmer Rucker:

a) House and contents 9 1/4 acres of land located on Route 600, Beaulahville, Va, located in King William County, VA.
b) The remaining proceeds, if any, from the sale of the property located at 526 Powhatan Place in Washington, D.C., after the specific bequests are made as referred herein.

According to Administratrix Gunter-Rucker, Anthony Rucker now refuses to turn over these assets to Elwood Rucker’s estate. Shenotes, as well, thatB. ElliottBondurant, the Commissioner of Accounts in and for King and Queen County, Virginia, “had directed of Anthony E. Rucker that, ‘a deed [be] prepared conveying the King William County real estate to Mr. (Elwood) Rucker.’” She states that on February 2, 2011, Anthony Rucker sold the real property located at 526 Powhatan Place, Washington, D.C. for $197,819.71 with $297 return for escrow, which was paid to decedent Myrtle W. Greene’s estate. Ms. Gunter-Rucker now seeks an order from this court pursuant to 20 Pa.C.S. §3311 requiring Andrew Rucker to turn over the proceeds from that sale after the payment of specific bequests to her, as personal representative of her deceased husband’s estate. She also seeks to surcharge Anthony Rucker.

Anthony Rucker, as administrator of Myrtle Greene’s estate, claims that this court lacks jurisdiction over him and Myrtle Greene’s Virginia estate. He raises this issue in preliminary objections supported by a memorandum of law. Doris Gunter-Rucker filed an answer to these preliminary objections. In that answer, she admits several key facts. She concedes, for instance, that respondent Anthony Rucker resides in New Jersey. She admits that Myrtle Greene died a resident of Virginia and that her will was admitted to probate in Virginia. Finally, she admits that the proceeds she seeks came from the sale of property located in Washington D.C. In support for her claim, she relies on 20 Pa.C.S. § 3311 and 20 Pa.C.S. §711, while distinguishing the cases invoked by Anthony Rucker.

Legal Analysis

Preliminary obj ections that would result in the dismissal of a petition may be granted only where they are free from doubt. When presented with objections asserting lack of in personam jurisdiction, a court must consider the evidence in a light most favorable to the non-moving party. Schiavone v. R.J. Aveta, 41 A.3d 861, 865, 2012 Pa. Super. 68 (2012), aff’d 91 A.3d 1235 (Pa. 2014).

The due process clause of the fourteenth amendment limits a court’s authority to exercise jurisdiction over a nonresident defendant who has no meaningful contacts with that forum. Burger King v. Rudzewicz, 471 U.S. 462, 471-72 (1985). To determine whether the exercise of jurisdiction over a nonresident defendant comports with due process, it is necessary to analyze the nature and extent of the defendant’s contacts with the forum. In so doing, courts typically analyze whether those contacts satisfy the requirements of specific jurisdiction or general jurisdiction as set forth in two different Pennsylvania long-arm statutes. To maintain specific jurisdiction, a court may exercise jurisdiction over a nonresident defendant if his specific acts give rise to a cause of action where two requirements are satisfied. First, the criteria of the appropriate Pennsylvania long arm statute 42 Pa.C.S.A. § 5322 for specific jurisdiction must be satisfied. Second, “the exercise of jurisdiction must comport with constitutional principles of due process.” Schiavone v. R. J. Aveta, 41 A.3d 861, 866 (Pa. Super. 2012). While specific jurisdiction may flow from “single or occasional” acts that are purposefully directed to the forum, general jurisdiction derives from “circumstances or a course of conduct, from which it is proper to infer an intention to benefit from and thus an intention to submit to the laws of the forum state.” Mendel v. Williams, 53 A.3d 810, 817 (Pa. Super. 2012). In Pennsylvania, the statute authorizing general jurisdiction is 42 Pa.C.S.A. § 5301. Id.

Anthony Rucker asserts that this court lacks in personam jurisdiction over both him and Myrtle Greene’s estate due to the lack of the requisite minimum contacts that would allow a Pennsylvania court to exercise jurisdiction. He emphasizes that he is not a Pennsylvania resident and has not performed any acts in Pennsylvania. Likewise, the Estate of Myrtle Greene is not a Pennsylvania estate and has no assets in Pennsylvania. In response, petitioner briefly addresses general and specific jurisdiction over Anthony Rucker under the long arm statutes and the due process clause. She suggests, for instance, that this court would have in personam jurisdiction under the following provisions of 42 Pa.C.S.A. §5301:

(a) General rule.—The existence of any of the following relationships between a person and this Commonwealth shall constitute a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over such person, or his personal representative in the case of an individual, and to enable such tribunals to render personal orders against such person or representative:
(1) Individuals
(iii) Consent, to the extent authorized by the consent
(b) Scope of jurisdiction. — When jurisdiction over a person is based upon this section any cause of action may be asserted against him, whether or not arising from acts enumerated in this section. Discontinuance of the acts enumerated in subsection (a)(2)(i) and (iii) and (3)(i) and (iii) shall not affect jurisdiction with respect to any act, transaction or omission occurring during the period such status exists.

12/23/14 Doris Gunter-Rucker Answer at 6.

The statutory provision Ms. Gunter-Rucker cites would premise inpersonam jurisdiction on the consent of Anthony Rucker, but no such consent has been alleged. Instead, petitioner suggests that Anthony Rucker is an heir to the estate of Elwood Rucker and based on this relationship to his Pennsylvania father’s estate, a Pennsylvania Court could exercise in personam jurisdiction over him. At best, however, this might extend jurisdiction over Anthony as a beneficiary, but the entire thrust of the petition is to obtain jurisdiction over Anthony as a nonresident administrator of the Virginia estate of Myrtle Greene. Petitioner presents no factual basis for extending in personam jurisdiction over Anthony Rucker as administrator nor over the Virginia estate of Myrtle Greene.

The petitioner’s main argument for in personam jurisdiction over Anthony Rucker focuses on two PEF Code provisions: section 3311 and section 711. She notes, for instance, that section 711 gives Orphans’ Court mandatory jurisdiction over the administration and distribution of real and personal property from a decedent’s estate. Moreover, she emphasizes that Section 3311 gives the following authority for a personal representative to take possession of estate property:

§3311. Possession of real and personal estate; exception
(a) Personal representative. —Apersonal representative shall have the right to and shall take possession of, maintain and administer all the real estate and personal estate of the decedent, except real estate occupied at the time of death by an heir or devisee with the consent of the decedent. He shall collect the rents and income from each asset in his possession until it is sold or distributed, and, during the administration of the estate, shall have the right to maintain any action with respect to it and shall make all reasonable expenditures necessary to preserve it. The court may direct the personal representative to take possession of, administer and maintain real estate so occupied by an heir or devisee if this is necessary to protect the rights of claimants or other parties. Nothing in this section shall affect the personal representative’s power to sell real estate occupied by an heir or devisee.

20 Pa.C.S.A. §3311; See generally 12/23/14 Answer, Brief at 5.

While it is true that Section 3311 of the PEF code gives a fiduciaiy authority to gather the assets of a decedent’s estate, it does not address the jurisdictional limits of that authority. These PEF code provisions petitioner invokes apply to actions brought within Pennsylvania. Ms. Gunter-Rucker cites no precedent that would allow her to exert jurisdiction over a foreign fiduciary to obtain the assets of a decedent who resided outside the state. As a general matter, the Pennsylvania Supreme Court has observed, “[wjhile the orphans’ court possesses extensive powers to assist a decedent’s personal representative to acquire control of property rightfully belonging to the estate, these powers may only be invoked within the restricted jurisdiction of the court, which is entirely statutory in origin.” In re McGovem’s Estate, 322 Pa. 379, 381, 186 A.89, 90 (Pa. 1936)(Orphan’s Court lacks jurisdiction over the recipient of funds that were not in the possession of decedent at death nor subsequently by his representative).

There is longstanding Pennsylvania precedent cited by neither party that addresses the specific issue of whether a Pennsylvania Orphans’ Court can exert jurisdiction over a foreign fiduciary and a decedent’s estate being administered in another state. The Pennsylvania Supreme Court in Giampalo v. Taylor, 335 Pa. 121, 6 A.2d 499 (Pa. 1939) concluded that the non-resident executor of an estate of a decedent who had resided outside of Pennsylvania could not be brought into a lawsuit pending in Pennsylvania by service of a writ of scire facias by publication on the foreign executor acting under the laws of another state. In so ruling, the Giampalo court focused primarily on the issue of in personam jurisdiction over a foreign fiduciary.

There were numerous reasons why the Giampalo court refused to assert in personam jurisdiction over this foreign fiduciary. It noted, for instance, that the majority of courts in other jurisdictions uniformly conclude that “no action to recover a judgment in personam can be maintained against an executor or administrator in his representative capacity outside the state of his appointment upon a claim against the estate of a decedent.” 335 Pa. at 124, 6 A.2d at 501. This flows from the theory that “an executor owes his legal existence to the act of the sovereign state under the laws of which he was appointed, and his powers do not extend beyond the limits of that state, which reserves to itself at all times the full and exclusive authority over all the assets of the decedent within its jurisdiction.” Id. The court likewise cited the restatement, conflict of laws, for the proposition that “[f|or a court in another state to order payment from assets of the decedent in the hands of the foreign administrator would be an improper interference with the administration by the court of the first state.” There are also practical reasons for this conclusion. A judgment rendered against a foreign fiduciary, for instance, cannot be easily collected in Pennsylvania because the estate at issue is outside the Commonwealth. Similarly, it cannot be enforced in the foreign state where the Pennsylvania court lacks in personam jurisdiction over the executor. Id. 335 Pa. at 125, 6 A.2d at 502. In broad terms the Giampalo court emphasized: “The authority of a court cannot extend beyond the territorial limits of the state by which it was created. Any attempt on its part to enforce its decrees and judgments beyond such limits constitutes an illegitimate assumption of power.” Id. 335 Pa. at 128-29, 6 A.2d at 503. See also Freeman’s Appeal, 68 Pa. 151, 1871 WL 11031 (Pa. 1871)(Pennsylvania orphans’ court lacked authority to compel the administrator of a New Jersey decedent’s estate to transfer New Jersey assets to the beneficiary of the Pennsylvania ancillary estate).

There is, however, a string of Pennsylvania cases that a Pennsylvania court may exercise in personam jurisdiction over a foreign fiduciary if he or she is personally served within the state. See, e.g. Hooks v. Dubois, 420 Pa. 65, 67, 215 A.2d 631 (Pa. 1966)(“This court has held that a foreign fiduciary (i.e. one whose letters were issued in another state) is subject to an action in our courts if he is personally served with process in Pennsylvania); Shellito v. Grimshaw, 367 Pa. 599, 81 A.2d 544 (Pa. 1951)(Where ancillary executrix was personally served while attending a deposition in Erie County, the Erie County court had jurisdiction over her). Petitioner makes no claim, however, that Andrew Rucker was personally served in Pennsylvania.

A case directly on point is Kelsey Estate, 31 Pa. D & C. 2d 170 (Clinton Cty. O.C. 1963). In Kelsey, an executor appointed , in Pennsylvania filed a petition seeking the return to his decedent’s of assets that had been taken to New York by New York residents. In concluding emphatically that it lacked jurisdiction to order the return of these assets, the court explained that to order the return of the New York assets to the Pennsylvania estate “calls for a decree in personam.” Since the defendants in this case resided in New York where the property was likewise located, the court had jurisdiction over neither the executor nor the res involved in the proceeding. Similarly, the Philadelphia Orphans’ court has held that it lacked in personam jurisdiction to grant a petition by a personal representative appointed in Puerto Rico to compel a Philadelphia bank to return assets to the Puerto Rican estate. Parkhurst's Estate, 14 Pa. D & C 2d 661 (Phila. O.C. 1958). The court noted that the state where a decedent’s assets were located had various interests to protect such as the claims of creditors and taxing authorities. Proceeding by petition, alone, did not provide appropriate notice.

Conclusion

Based on this precedent and the facts set forth in the petition seeking the return of assets, the petition filed by the administrator of Elwood Rucker’s estate is denied without prejudice to refile in the appropriate forum. As petitioner concedes, the respondent administrator of the Estate of Myrtle Green resides in New Jersey and the Estate of Myrtle Green is being administered in Virginia. This court therefore lacks the requisite in personam jurisdiction. The preliminary objections are hereby sustained as set forth in a contemporaneously issued decree.

      . “Foreign” fiduciary for the purposes of this opinion refers to a fiduciary appointed by a non-Pennsylvania court, in this case, Virginia.

      . 9/24/14 Petition, Ex. B.

      . 9/24/14 Petition, ¶ 26.

      . 12/23/14 Answer, ¶¶ 1, 2c, 2d, h (i) & (ii), 2 (1).

      . 11/26/14 Preliminary Objections, Memorandum of Law at 1.

      . See, e.g. 12/23/14 Answer, Memorandum of Law at 7.

      . 12/23/14 Answer, ¶¶ 4 & 5.

      . Giampalo v. Taylor, 335 Pa. at 124, 6 A.2d at 502 (quoting Restatement, Conflict of Laws, §512).


author: BELTRAMI, J.,

text:
    Phillips v. Ford Motor Co.

      C.P. of Northampton County,
    No. C-48-CV-2012-10279

      John J. Fonash, III, for plaintiff.

      Emily J. Rogers, for defendant Ford Motor Co.
    Jan. 21, 2015-
   BELTRAMI, J.,

This matter is before the court on defendant Ford Motor Company’s motion for summary judgment Based on federal preemption (“preemption motion”) and motion for summary judgment based on lack of competent expert evidence (“expert motion”). Briefs have been submitted, oral argument was heard, and the matters are ready for disposition.

Plaintiff commenced this action by filing a complaint in Philadelphia County on February 18, 2011, alleging that, on June 16, 2006, she was involved in a single-vehicle accident that resulted in serious bodily injuries. On April 21, 2011, plaintiff filed an amended complaint, to which Ford filed preliminary objections on May 11, 2011. Plaintiff filed an answer to Ford’s preliminary objections on May 31, 2011. On June 13, 2011, the honorable William J. Manfredi overruled Ford’s preliminary objections and ordered it to file an answer to plaintiff’s amended complaint, which Ford did on July 5, 2011. On August 23, 2012, the honorable Annette T. Rizzo entered an order transferring the case from Philadelphia County to Northampton County.

Plaintiff’s complaint includes counts for negligence, strict products liability, and breach of warranty against Ford. After a period of discovery, Ford filed the instant motions on April 30,2014. In its preemption motion, Ford argues that summary judgment should be entered in its favor because the doctrine of federal preemption bars plaintiff from recovering damages against it in this state tort action. In its expert motion, Ford argues that summary judgment should be entered in its favor because plaintiff has not produced the required expert evidence necessary to make out a prima facie claim of crashworthiness and has failed to indicate she will produce any such evidence. Plaintiff filed responses to both motions on June 2, 2014.

Pennsylvania Rule of Civil Procedure 1035.2 establishes the standard of review for a motion for summary judgment as follows:

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. No. 1035.2. Summary judgment may only be granted when the record clearly shows that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). The moving party bears the burden of proving that no genuine issue of material fact exists. Barnish v. KWI Bldg. Co., 916 A.2d 642, 645 (Pa. Super. 2007). In deciding a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Ario v. Ingram Micro, Inc., 965 A.2d 1194, 1200 (Pa. 2009). Even where the facts are agreed upon, summary judgment cannot be entered if the facts can support conflicting inferences. Washington v. Baxter, 719 A.2d 733, 740 n.10 (Pa. 1998).

The party opposing a motion for summary judgment

may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty 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.

Pa.R.C.P. No. 1035.3(a)(l)-(2). In other words, the “[fjailure of a non-moving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a jury could return a verdict in its favor establishes the entitlement of the moving party to judgment as a matter of law.” Young v. Commonwealth, Dep’t of Transp., 744 A.2d 1276, 1277 (Pa. 2000). In deciding a motion for summary judgment, the “record” available for the court’s examination includes the pleadings, discovery materials, affidavits, and expert reports. Pa.R.C.P. No. 1035.1.

Viewed in the light most favorable to plaintiff, as the non-moving party, the record in this case establishes the following facts. On June 16, 2006, plaintiff was the front seat passenger in a 1992 Ford Probe driven by defendant Justin Carver. (Preemption Mot. ¶ 1; Answer to Preemption Mot. ¶ 1.) Defendant Carver was operating the vehicle on a curved portion of Black River Road, in Northampton County, when he lost control of the vehicle and the vehicle left the roadway. (Preemption Mot. ¶ 1; Answer to Preemption Mot. ¶ 1.) The vehicle continued moving forward until it contacted the bank of a creek. (Preemption Mot. ¶ 1; Answer to Preemption Mot. ¶ 1.) At the time the vehicle left the roadway, it was traveling in excess of the posted speed limit of thirty miles per hour. (Preemption Mot. Ex. B (“Derian Report”) at 1, Ex. D (“Viano Report”) at 2.) When the vehicle impacted the embankment, plaintiff was thrown forward into her shoulder belt, causing serious internal injuries. (Derian Report at 3; Viano Report at 20.)

The front passenger seat of the Probe contained an automatic shoulder belt and a manual lap belt. (Preemption Mot. ¶ 3; Answer to Preemption Mot. ¶ 3.) At the time of the accident, plaintiff was restrained by the shoulder belt but not by the lap belt. (Preemption Mot. ¶ 3; Answer to Preemption Mot. ¶ 3.) The probe also contained a front passenger seatback release lever located behind the front passenger seat. (Derian Report at 3.) This release, when activated, disables the latch holding the front passenger seat in an upright position and allows the seat to fold forward. (Id.) The release lever in the probe extended into the footwell area of the rear passenger seat. (Id.)

Atthetimeofthecrash,anunrestrainedfemalepassenger, Amanda Maar, was seated directly behind plaintiff. (Id. at 2.) When the probe struck the embankment, Maar was thrown forward into the front passenger seatback. (Id. at 3.) Upon exiting the vehicle after the crash, defendant Carver had to push the front passenger seat upright in order to remove plaintiff from the vehicle, as her seat had folded over. (Id.) The latch which held the front passenger seat in an upright position was fully functional. (Id.) Because the front passenger seat folded over while the latch was fully functional, plaintiff’s expert opines that Maar activated the release lever prior to contacting the back of plaintiff’s seat. (Id.) This caused extra force to bear down on plaintiff, resulting in enhanced physical injuries. (Id.)

Plaintiff claims two distinct defects with the probe. The first is that the front passenger seat restraint system should not have required that the lap belt be manually buckled in order to safely restrain a passenger. The second is that the seatback release lever should not have been located in a position where it could have been inadvertently actuated by a rear passenger during a crash. Both alleged defects are pleaded as alternative theories of recovery within plaintiff’s counts for negligence (Count III), strict liability (Count IV), and breach of warranty (Count V) against Ford. Ford contends that each of these theories is federally preempted due to the probe’s compliance with applicable Federal Motor Vehicle Safety Standards.

The principle of federal preemption of state law derives from the second clause of Article VI of the United States Constitution’s Supremacy Clause, which provides that the laws of the United States “shall be the supreme Law of the Land; ...any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, cl. 2. Thus, laws that are in conflict with federal law are “without effect.” Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981).

Kiak v. Crown Equip. Corp., 989 A.2d 385, 390 (Pa. Super. 2010).

There are three ways in which a state law may be preempted. First, state law may be preempted where the United States Congress enacts a provision which expressly preempts the state enactment. Likewise, preemption may be found where Congress has legislated in a field so comprehensively that it has implicitly expressed an intention to occupy the given field to the exclusion of state law. Finally, a state enactment will be preempted where a state law conflicts with a federal law. Such a conflict may be found in two instances, when it is impossible to comply with both federal and state law, or where the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Office of Disciplinary Counsel v. Marcone, 855 A.2d 654, 664 (Pa. 2004) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)) (citations omitted).

F ederal Motor Vehicle S afety Standards are promulgated pursuant to the National Traffic and Motor Vehicle Safety Act, for the purpose of “reducing] traffic accidents and deaths and injuries resulting from traffic accidents.” 49 U.S.C. § 30101. These standards can preempt state tort claims which seek to impose a state standard that conflicts with a federal standard. Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 867-74 (2000). In Geier, the court held that a state claim in which the plaintiffs contended that Honda had a duty to install a driver’s side airbag was preempted by the applicable federal safety standard that specifically allowed manufacturers to choose not to install such airbags in a percentage of their new vehicles. Id. at 874-86. In reaching its decision, the court concluded that a state tort law imposing a duty to install such airbags would have been an impediment to the assortment and choice of restraints that the federal standard sought and to the phase-in of airbags that the federal regulation purposely imposed. Id. However, in Williamson v. Mazda Motor of Am., Inc., 131 S.Ct. 1131, 1137-40 (2011), the court held that a state tort claim that would preclude a manufacturer from choosing one of two seatbelt designs specifically permitted for the rear seat of a van by the applicable federal safety regulation was not preempted because, unlike in Geier, “the regulation’s history, the agency’s contemporaneous explanation, and its consistently held interpretive views [did not indicate] that the regulation sought to maintain manufacturer choice in order to further significant regulatory objectives.” Id. at 1139. In any event, it is clear that in deciding whether a state tort suit is preempted by a federal safety standard, courts should adhere to “the operation of ‘ordinary pre-emption principles, grounded in longstanding precedent.’” Id. at 1136 (quoting Geier, 529 U.S. at 874). In Cellucci v. Gen. Motors Corp., 706 A.2d 806, 810 (Pa. 1998), the Pennsylvania Supreme Court recognized that, in determining whether a state tort suit is preempted, “the seminal question is whether the state common law tort claims raised...conflict with the methods formulated under the Safety Act to achieve the goal of reducing deaths and injuries to people arising from traffic accidents.”

In its preemption motion, F ord first argues that plaintiff’s claim that the probe is defective based on Ford’s choice to equip the front passenger seat with an automatic shoulder belt and manual lap belt is preempted by the 1984 version of Federal Motor Vehicle Safety Standard (“FMVSS”) 208, the same standard that preempted the plaintiff’s claim that Honda had a duty to install an airbag in Geier. The 1984 version of FMVSS 208 required car manufacturers to equip vehicles with a passive restraint system, with a gradual phase-in period that gave manufacturers a choice among different types of such restraints, including the automatic seatbelt at issue in this case. See 49 F.R. 28962-01.

In Carrasquilla v. Mazda Motor Corp., 166 F.Supp.2d 169, 176 (M.D. Pa. 2001), the court found that the 1984 version of FMVSS 208 preempted the same claim plaintiff makes here, that a shoulder-only automatic front passenger seatbelt system is defective. In Carrasquilla, as in the instant case, the car at issue contained an automatic shoulder belt and a manual lap belt. Id. at 172-73. In finding the plaintiffs’ claim to be preempted, the court stated:

“[N]o matter how [ ] plaintiffs characterize their claim, they are attacking one of the specifically permitted passive restraint options [under FMVSS 208] with ‘allegations that a shoulder-only automatic system is unsafe.’” Indeed, given the fact that plaintiffs insist that defendants should have utilized one of the purportedly safer “alternatives,” the court can only construe plaintiffs’ claim as a direct challenge to the passive restraint system available to, and implemented by, defendants under FMVSS 208.7. As such, plaintiffs’ claim is, in theory, no different from petitioners’ claim in Geier.

Id. at 176 (footnote omitted) (quoting the defendant’s brief).

As in Carrasquilla, plaintiff argues here that the automatic shoulder belt and manual lap belt in the probe is unsafe. Thus, as in Carrasquilla, plaintiff’s claim directly conflicts with FMVSS 208. In response to Ford’s argument, plaintiff simply argues that “this court is not bound by the decision of a federal district court.” (Pl.’s Br. at 6.) While this is certainly true, this court cannot argue with the reasoning of the Carrasquilla court and agrees with it. Thus, for the reasons outlined by the court in Carrasquilla, the court finds that plaintiff’s claims are preempted to the extent that she asserts liability for Ford’s failure to provide an integrated automatic or manual shoulder and lap belt system in the probe. In other words, the court will grant partial summary judgment with regard to plaintiff’s claims that Ford is liable because of its choice to equip the front passenger seat of the probe with an automatic shoulder belt and manual lap belt.

Ford next argues in its preemption ,otion that the 1989 version of FMVSS 207 preempts plaintiff’s tort claims based upon the theory that the seatback release lever should have been positioned elsewhere in the probe. The 1989 version of FMVSS 207 provides:

S4.3.1. Accessibility of release control. If there is a designated seating position immediately behind a seat equipped with a restraining device, the control for releasing the device shall be readily accessible to the occupant of the seat equipped with the device and, if access to the control is required in order to exit from the vehicle, to the occupant of the designated seating position immediately behind the seat.

49 C.F.R. § 571.207. Ford argues that by making the release control readily accessible, it complied with FMVSS 207, preempting plaintiff’s seatback release lever claim. Plaintiff argues that even if Ford complied with FMVSS 207, her claim is not preempted because Ford could have chosen a different location for the lever which would have both complied with the regulation and decreased the likelihood that it would be inadvertently actuated. The court agrees with plaintiff and finds that plaintiff’s claim that the seatback release lever should have been located elsewhere does not conflict with FMVSS 207 and, therefore, is not preempted.

In its expert motion, Ford first argues that plaintiff’s expert, Gary Derian, lacks the requisite qualifications to offer expert opinions in the areas of vehicle defects and biomechanical and injury causation. This challenge is more properly brought in a motion in limine. See Pa.R.E. 103 cmt. (“Motions in limine permit the trial court to make rulings on evidence prior to trial or at trial but before the evidence is offered.”). The issue of Mr. Derian’s qualifications is evidentiary in nature because it must be decided before proceeding to the question of whether his opinions are admissible. See Pa.R.E. 702. Further, the issue can only be decided after hearing Mr. Derian’s testimony regarding his qualifications. Thus, the court will defer ruling on whether Mr. Derian is qualified to render opinions in the areas of vehicle defects and biomechanical and injury causation until the time of trial.

Ford next argues that Mr. Derian’s opinions are inadmissible because they “are devoid of any basis in science or fact.” (Ford’s Br. at 10.) More specifically, Ford argues that Mr. Derian’s “opinions do not meet Pennsylvania’s requirements for admissible expert testimony...under Pennsylvania Rules of Evidence 702, 703, and 705.” (Ford’s Expert Mot. ¶ 24.) For the reasons set forth above, the court will also defer ruling on the admissibility of Mr. Derian’s opinions until trial. However, it appears that this argument goes to the weight to be given to Mr. Derian’s opinions, not to their admissibility.

Finally, Ford argues in its expert motion that summary judgment should be granted in its favor with regard to plaintiff’s products liability count because plaintiff has not produced the evidence necessary to establish the three elements of proof required in a crashworthiness claim.

To this end, we will briefly review the history of products liability law and the crashworthiness doctrine in this Commonwealth.... To state a section 402A products liability claim in Pennsylvania, the plaintiff must prove that the defendant sold a product “in a defective condition,” that the defect existed when the product left the defendant’s hands, and that the defect caused the plaintiff’s injuries. See, e.g., Hadar v. AVCO Corp., 886 A.2d 225, 228 (Pa. Super. 2005). A product is “in a defective condition” when it lacks “any element necessary to make it safe for its intended use or possessing any element that renders it unsafe for the intended use.” Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 559, 391 A.2d 1020, 1027 (1978). Because the key inquiry in all products liability cases is whether or not there is a defect, it is the product, and not the defendant’s conduct, that is on trial. See, e.g., Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 983 (Pa. Super. 2005), affirmed, 592 Pa. 38, 922 A.2d 890 (2007).
The crashworthiness doctrine is a subset of strict products liability law that most typically arises in the context of vehicular accidents. See, e.g., Colville v. Crown Equip. Corp., 809 A.2d 916, 922 (Pa. Super. 2002), appeal denied, 574 Pa. 742, 829 A.2d 310 (2003). First explicitly recognized as a specific subset of product liability law by this court in Kupetz v. Deere & Co., Inc., 435 Pa. Super. 16, 644 A.2d 1213 (1994), the term “crashworthiness” means “the protection that a motor vehicle affords its passenger against personal injury or death as a result of a motor vehicle accident.” Id. at 1218. The doctrine extends the liability of manufacturers and sellers to “situations in which the defect did not cause, the accident or initial impact, but rather increased the severity of the injury over that which would have occurred absent the design defect.” Id. To avoid liability, a manufacturer must design and manufacture the product so that it is “reasonably crashworthy,” or, stated another way, the manufacturer must include accidents as intended uses of its product and design accordingly. Id.
A crashworthiness claim requires proof of three elements. First, the plaintiff must prove that the design of the vehicle was defective, and that at the time of design an alternative, safer, and practicable design existed that could have been incorporated instead. Id. Second, the plaintiff must identify those injuries he or she would have received if the alternative design had instead been used. Id. Third, the plaintiff must demonstrate what injuries were attributable to the defective design. Id.

Gaudio v. Ford Motor Co., 976 A.2d 524, 531-32 (Pa. Super. 2009) (emphasis added).

Because plaintiff has the burden of proving her crashworthiness claim, to survive Ford’s expert motion, plaintiff “may not rest upon the mere allegations or denials of the pleadings” and must be able to point to “evidence in the record establishing the facts essential to the cause of action...which the motion cites as not having been produced.” Pa.R.C.P. No. 1035.3(a)(2). A review of the evidentiary record reveals a lack of evidence in support of plaintiff’s crashworthiness claim.

In this regard, the record is devoid of any proposed alternative design of the seatback release device. While Mr. Derian claims that the location of the release device was defective due to the possibility of its inadvertent actuation during a crash, he does not propose an alternative location that would both comply with FMVSS 207 and be safer. In other words, Mr. Derian does not opine “that at the time of [the probe’s] design an alternative, safer, and practicable design [of the seatback release device] existed that could have been incorporated instead.” Gaudio, 976 A.2d 524, 532. In sum, plaintiff has produced no evidence, expert or otherwise, to establish the first element of her crashworthiness claim.

In response to Ford’s argument on this issue, plaintiff dedicates a single paragraph in her brief, which is as follows:

Finally, the moving defendant, relying largely on Colville v. Crown Equipment Corp., 809 A.2d 916 (Pa. Super. 2002) asserts that plaintiff cannot establish a prima facie case under the crashworthiness doctrine. Colville, however, establishes that the jury must be instructed on the crashworthiness doctrine. No case is cited wherein summary judgment was granted on the grounds asserted by movant.

(Pl.’s Br. at 9.) Plaintiff’s argument is akin to arguing, in a breach of contract action, that because the court will instruct the jury on the elements of a cause of action for breach of contract, a plaintiff can survive a motion for summary judgment without producing evidence of a defendant’s breach of the contract prior to trial. As plaintiff bears the burden of proof regarding the three elements of her crashworthiness claim, Rule 1035.3(a) (2) requires the court to enter summary judgment if, in response to Ford’s expert motion, plaintiff fails to produce evidence creating a material issue of fact with regard to the three crashworthiness elements. As plaintiff has failed to produce such required evidence, Ford’s expert motion will be granted, in part, and summary judgment will be entered on plaintiff’s crashworthiness claim.

WHEREFORE, the court enters the following:

ORDER OF COURT

And now, this 21st day of January, 2015, “defendant Ford Motor Company’s motion for summary judgment based on federal preemption,” filed on April 30, 2014, is hereby granted, in part, and denied, in part. Plaintiff is precluded from asserting the liability of defendant Ford Motor Company based upon the design of the front passenger seatbelt system of the car at issue.

“Defendant Ford Motor Company’s motion for summary judgment Based on Lack of competent expert evidence,” also filed on April 30,2014, is hereby granted, in part, and denied, in part. Judgment is hereby entered in favor of defendant Ford Motor Company and against plaintiff on Count IV of plaintiff’s amended complaint.

      . In that section of its brief regarding this issue, Ford argues that Mr. Derian’s opinions “violate the Frye standard.” (Ford’s Br. at 10-16.) However, Ford has not filed a motion to exclude the testimony, pursuant to Pennsylvania Rule of Civil Procedure 207.1, and no Frye hearing has been held. In any event, even if such a motion had been filed, Rule 207.1 allows the court to defer ruling on the issue until the time of trial. Pa. R.C.P. No. 207.1(a)(3).

      . Because the court has determined that plaintiff’s seatbelt theory is preempted, that theory need not be addressed with regard to Ford’s expert motion.

      . Because plaintiff has not produced any evidence regarding the first element, the court need not address the second and third elements of a crashworthiness claim to resolve Ford’s expert motion.


author: HERTZBERG, J.,

text:
    Suchma v. Lasota

      C.P. of Allegheny County,
    Nos. GD 12-10229; 1932 WDA 2014

      Dwight D. Ferguson, for plaintiffs.

      Douglas C. Lasota and Harlan Stone, for defendants.
    Jan. 26, 2015-
   HERTZBERG, J.,

The parties in this dispute are next door neighbors residing at 26 and 24 John Street in Crafton Borough, Allegheny County, Pennsylvania. The dispute is over storm water drainage and a small flower garden. The non-jury trial of the dispute was held before me, and I thereafter ordered defendants David Lasota and Carolyn Lasota (“Lasota” hereinafter) to remove a fence in the flower garden and abate water discharging from their shed on to the property of plaintiffs Kenneth Suchma and Janice Suchma (“Suchma” hereinafter). Suchma has appealed my ruling to the Superior Court of Pennsylvania because I did not also order Lasota to remove the rest of the flower garden. This opinion explains the reasons for my ruling. See Pa. R.A.P. No. 1925(a).

The flower garden that Suchma wants removed is located on an unpaved and unimproved portion of John Street, bordering the Lasota front yard, and near the Suchma property. A photograph of this garden (see trial exhibit D.l) shows it to consist of a wooden post and rail fence, small flower-producing plants and 12 decorative flat stones, covering an area of approximately 20 to 40 square feet. I ordered Lasota to remove the fence, but not the rest of the garden. Suchma wants Lasota to remove the rest of the flower garden because it allegedly interferes with Suchma’s water line and with their use of the John Street public right-of-way.

John Street is a public street paved with asphalt wide enough for two lanes of vehicular travel to the point where it reaches the Suchma land, as Crafton Borough left John Street unopened at that point for over 21 years. See 8 Pa. C.S. §1724. Suchma or a prior owner paved a short portion of the unopened part of John Street approximately one lane in width, and Suchma uses this paved area for parking cars. The portion of John Street in front of Suchma’s residence otherwise is unpaved.

An owner of land subject to an easement, including an easement for a right-of-way, may make any use of the easement that does not unreasonably interfere with the use and enjoyment of the easement. Matakitis v. Woodmansee, 446 Pa. Super. 433, 667 A.2d 228 (1995). Encroachment into the easement will be permitted unless there is significant interference with use of the easement. Big Bass Lake Community Ass’n v. Warren, 950 A.2d 1137, 1145 (Pa. Cmwlth. 2008) citing Moyerman v. Glanzberg, 391 Pa. 387 at 391, 138 A.2d 681 at 683 (1958).

At trial, Suchma’s primary concern with the water line was that a fence post in the flower garden went 3 feet below the surface and very close to the water line. See Nonjury Transcript dated September 29, 2014 (“T.” hereinafter), pp. 37-38 and 78-79. Since I ordered Lasota to remove the fence, this no longer can be Suchma’s complaint. While it appears that the line that supplies the Suchma residence with drinking water runs under the remaining flower garden, there was no testimony at the trial that this flower garden on the surface of the land unreasonably or significantly interfered with the use of the subsurface water line. In addition, the temporary nature of the flower garden poses no difficulty if excavation for a repair of the water line is needed in the future. Hence, assuming an easement exists for the water line, the flower garden does not unreasonably or significantly interfere with it. Therefore, there is no merit to the Suchma argument that the rest of the flower garden must be removed because it interferes with the water line.

Suchma also argues that there is no difference between the fence that had to be removed and the rest of flower garden that I allowed to remain. The difference, however, is that the fence significantly interferes with Suchma’s use of the unpaved part of John Street for pedestrian ingress and egress, while the flower garden interference is minimal. Clearly the small plants and flat, decorative rocks that make up the rest of the flower garden will not prevent pedestrian ingress and egress and pose less of an encroachment to the right-of-way than would weeds and underbrush that would otherwise grow there. Since the flower garden does not encroach on any paved portion of John Street, there is no interference whatsoever with the ingress or egress of cars. Hence, because the flower garden does not significantly interfere with Suchma’s use of the right-of-way, my decision to allow it to remain was correct.

      . David Lasota died in March of 2014, which was after plaintiffs commenced these proceedings but before the trial.

      . Suchma’s expert on municipal code compliance testified that the fence is not permitted in the right-of-way. See T., pp. 134-135. However, he provided no testimony relative to whether the remaining components of the flower garden also are not permitted.

      . Suchma’s Concise Statement of Errors Complained of on appeal, at paragraph nos. 5 and 8, raises the additional issue that the flower garden prevents parking in the right-of-way. The amended complaint does not mention the parking issue, and at trial Suchma’s counsel elected to withdraw a question and an exhibit concerning the topic. See T., pp. 49-50. Suchma has therefore waived the right to appeal as to the parking issue. Pa. R.C.P. No. 227.1(b)(1). In any event, this area cannot be used for parking primarily due to large trees planted by Janice Suchma’s father. See T., pp. 46 and 79. The remaining components of the flower garden do not prevent parking.


author: MCCOY, J.,

text:
    In re Interest of T.H.

      C.P. of Lycoming County,
    No. JV 0218-2014

      Jeffrey Yates, for Commonwealth.

      Don Martino, for defendant.
    Jan. 27, 2015-
   MCCOY, J.,

Before the court is T.H.’s motion to suppress filed on December 15,2014. Ahearing was held January 8, 2015 at which time T.H. (hereinafter Juvenile) was present and represented by Don Martino, Esquire. Jeffrey Yates, Esquire was present on behalf of the Commonwealth. The only testimony elicited at the time set for the hearing was that of officer Jason Bolt of the Williamsport Police Department.

On September 29, 2014, Officer Bolt responded to 680 2nd Avenue to the phone call of TH, Mother who reported her child, Juvenile and her nephew were refusing to attend school. Upon arrival of the home mother escorted officer Bolt upstairs to the Juvenile’s bedroom. Juvenile, who was 16 years old at the time, refused to go to school when requested by officer Bolt. Officer Bolt called officer Derr for back-up. Officer Bolt instructed the youth to stand. Officer Bolt placed the juvenile under arrest although no testimony was elicited as to what charges the Juvenile was taken into custody. The juvenile was placed under arrest in his home and placed in restraints behind his back. Officer Bolt asked the Juvenile what he needed for school and the juvenile requested his back pack. Officer Bolt retrieved the backpack. Officer Bolt carried the backpack outside. Before placing the juvenile in the vehicle, Officer Bolt searched the backpack and found drug paraphernalia, namely a homemade marijuana bong.

Officer B olt explained he searched the backpack because it was the standard procedure if a person was in custody and being transported by a police officer. Officer Bolt reported that the juvenile was not physically aggressive or threatening at any time. Officer Bolt testified that he had no concerns for his safety or indication the backpack contained contraband prior to the search. Officer Bolt testified that the other juvenile was not aggressive.

As a general rule, for a search to be reasonable under the Fourth Amendment to the United States Constitution or Article 1, Section 8 of the Pennsylvania Constitution, the police must first obtain a warrant, supported by probable cause and issued by an independent judicial officer. Commonwealth v. Gary, 2014 Pa. LEXIS 1119 (April 29, 2014). This general rule however, has exceptions, such as exigent circumstances and/or consent. Id. (citations omitted). The objective of these constitutional protections is the protection of privacy. Id. (citations omitted).

An additional exception to the warrant requirement is a search incident to a lawful arrest. Commonwealth v. Guzman, 417 Pa. Super. 364, 369 (Pa. Super. 1992). In Guzman, the police searched a bag that the defendant was carrying at the time of his lawful arrest. Id., 367. The police believed the bag was carrying cocaine for a drug sale due to information from an informant. Id. The search of Guzman’s bag was valid. Id., 370.

The juvenile argues the search of the backpack was outside the limitations of a search incident to arrest. This court agrees. At the time the juvenile was placed under arrest and handcuffed he did not have access to the backpack, the backpack was transported outside the home by officer Bolt and at no time did the juvenile have access to the backpack. Further, officer Bolt testified that at no point did he have safety concerns or even or suspicion of contraband in the backpack.

The attorney for the Juvenile relied heavily on the non-precedential decision In re: K.R.T., although this court does not rely on this decision the recitation of cases cited to is persuasive. In re: K.R.T. Appeal of K. T., 512 MDA 2014 (Pa. Super. 2014). One case cited was Commonwealth v. Taylor, which involved the search of two defendants’ jackets that were found in the same room but not within the immediate control of either defendant. The search was held to be improper. Commonwealth v. Taylor, 771 A.2d 1261, 1271 (Pa. 2001)

The Supreme Court of the United States and this court have held that the scope of a search incident to arrest extends not only to the arrestee’s person, but also into the area within the arrestee’s “immediate control.” While the breadth of the area that falls within the arrestee’s “immediate control” has been the subject of much debate, a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation.” The two historical rationales for the search incident to arrest exception to the warrant requirement are (1) the need to disarm the suspect in order to take him into custody and (2) the need to preserve evidence for later use at trial. Commonwealth v. Taylor, 771 A.2d 1261, 1271 (Pa. 2001)(citations omitted).

. The court has held “it is unreasonable to expect a police officer to place a suspect in his squad car for transport to another site without first taking reasonable measures to unsure the suspect is unarmed.” The court notes that the policy expressed by officer Bolt, of searching person transported in a police vehicle appears reasonable to ensure officer safety however the law requires the consideration of privacy interests along with the ensuring safety. Officer Bolt did not suspect the juvenile was armed nor did the juvenile have access to the backpack. The backpack could have been placed in compartment of the car separate from juvenile.

ORDER

And now, this 27th day of January 2015, following a hearing and argument, defendant’s motion to suppress is granted.

      . A petition for allowance of appeal in In re: K.R.T. is currently pending before the Pennsylvania Supreme Court.


author: ANDERSON, J.,

text:
    Ritter v. Van Campen Motors

      C.P. of Lycoming County,
    No. 12-00,379
    Feb. 9, 2015-
   ANDERSON, J.,

Before the court are two motions in limine filed by defendant Kevin Lee Banks, on December 2, 2014, and February 4, 2015. Argument was heard February 5, 2015.

The instant action arises from a motor vehicle accident in which the vehicle driven by plaintiff Rachel Ritter and the vehicle driven by defendant’s decedent, James Banks, collided head-on. Each party has claimed the other responsible for crossing the center line of Route 87 and causing the collision. James Banks was killed in the accident and Rachel and her mother, Kelly Ritter, who was also in the car, were severely injured and have no memory of the accident. The accident reconstruction experts offer opposite conclusions: Plaintiffs’ expert says Mr. Banks crossed the center line, defendant’s expert says the Ritter vehicle crossed the center line.

In the first motion, defendant seeks to preclude evidence that James Banks had a BAC of .257 at the time of the accident (as shown by the autopsy report), testimony that he had been drinking prior to driving that day, and evidence that there was beer in his vehicle at the time of the accident. Defendant contends the evidence is inadmissible without proof of intoxication. While the court agrees with the principle, it does not apply in this case because there is proof of intoxication. In the autopsy report, the forensic pathologist concludes that “Mr. Banks was markedly intoxicated at the time of the accident, BAC=0.25%.” Further, in his supplemental report of January 8, 2015, the pathologist opines that “Mr. Banks was sufficiently intoxicated that he would have been incapable of safe driving. His blood alcohol level of 0.25 is greater than three times the upper limit for driving purposes. The mental effects include confusion, emotional instability, loss of critical judgment (failure to use seat belts; drinking too much and becoming intoxicated; driving knowing he had too much to drink and is impaired; failure to analyze the potential consequences of his actions; failure to seek help, call a cab or ask for a ride home), sleepiness and memory impairment.... His blood alcohol is high enough to affect his cerebellum, the region of the brain that controls coordination meaning his dexterity both in his arms and legs is markedly affected meaning he would be slow and clumsy and incoordinated (sic) steering and manning the foot pedals.... it is my opinion with reasonable medical certainty that Mr. Banks was intoxicated”. This evidence of intoxication is more than sufficient to support the evidence of consumption of alcohol sought to be precluded.

In the second motion, defendant seeks to preclude the supplemental report of the forensic pathologist Isadore Mihalakis, M.D., on the bases that it was submitted outside the discovery deadlines and it expresses opinions beyond his scope of expertise. With respect to the latter basis, plaintiffs have agreed to not use the portion of the report which purports to opine on reconstruction of the accident. With respect to the former basis, the timeliness, as plaintiff submitted the report in response to defendant’s motion in limine to exclude the evidence of alcohol consumption, and as the supplemental report (as modified by eliminating references to accident reconstruction) addresses only the issue of intoxication and further explains the statement made in his first report that “Mr. Banks was markedly intoxicated at the time of the accident, BAC=0.25%”, the court will not exclude the report because of the timing. Defendant had enough notice with the filing of the autopsy report that the pathologist held the opinion that a BAC of .25 would cause one to be “markedly intoxicated” and thus sufficient time to seek a contrary opinion.

ORDER

And now, this 9th day of February 2015, for the foregoing reasons, except with respect to the reconstruction opinions of Dr. Mihalakis, which shall not be admissible, the motions in limine are denied.

      . Defendant also asserts the evidence is not relevant, but inasmuch as the central issue in this case is responsibility for the accident, the evidence of Mr. Banks’ intoxication is highly probative.