author: CORBETT, J.,

text:
    Flynn v. Northeastern Eye Institute

      C.P. of Lackawanna County,
    no. 99-CV-672.

      Dawn M. Guzzi for plaintiffs.

      Lara Endler, for defendant NEI.

      Eugene P. Feeney, for defendant Skettino.
    April 27, 2001
   CORBETT, J.,

Before the court are the motions for summary judgment filed by the defendants. Plaintiffs commenced this medical malpractice action by filing a summons on February 9,1999. A complaint was thereafter filed on July 2, 1999 setting forth the plaintiffs’ allegations of malpractice against the defendants. The complaint alleges vicarious liability on the part of defendant, Northeastern Eye Institute (NEI) and alleges that Dr. Skettino was an agent, servant, or employee of NEI. In the complaint, the plaintiffs allege that Dr. Skettino negligently performed a surgical procedure to remove a cyst from the male plaintiff’s left eye as by making a notch cut on the left eye which left a large gap below the tear line. The complaint further alleges that the notch cut made by Dr. Skettino caused the plaintiff to suffer injuries as outlined in the complaint. The surgery took place on October 8, 1996. Both defendants filed answers with new matter alleging that the plaintiffs’ claims are barred by the applicable statute of limitations.

It is undisputed that the plaintiffs’ complaint alleges that the defendant, Dr. Skettino, negligently performed a surgical procedure on the male plaintiff, on October 18, 1996. It is also undisputed that the plaintiffs’ commenced this action by summons on February 9, 1999. Defendants argue that the two-year statute of limitations bars the plaintiffs’ cause of action, because the statute expired on October 18, 1998. Plaintiffs counter that the discovery rule tolls the statute of limitations. Plaintiffs argue that the action did not begin to run until they received a copy of a letter from Dr. Bilyk M.D. of the Wills Eye Institute on February 12, 1997 alerting the male plaintiff to the cause of his injury.

We heard the oral arguments and have had the opportunity to review the record and submissions of the parties. This matter is ripe for disposition.

DISCUSSION

A motion for summary judgment places the burden upon the moving party. The moving party must show that there exists no genuine issue of any material fact for trial. Pa.R.C.P. 1035.2. The moving party must be entitled to judgment as a matter of law and the moving party has the burden of proving that no genuine issue of material fact exists. Washington v. Baxter, 553 Pa. 434, 440, 719 A.2d 733, 737 (1998). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Id. An entry of summary judgment is granted only in cases where the right is clear and free of doubt. AccuWeather v. Prospect Communications Inc., 435 Pa. Super. 93, 644 A.2d 1251 (1994). The moving party has the burden of proving the non-existence of any genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Rapagnani v. Judas Co., 736 A.2d 666, 668 (Pa. Super 1999). To withstand such a motion, the non-moving party must adduce sufficient evidence on a crucial issue as to which that party bears the burden of proof so as to demonstrate that a jury could return a verdict in favor of the non-movant. Hames ex rel. Hames v. Philadelphia Housing Authority, 737 A.2d 825, 828 n.4 (Pa. Commw. 1999).

In the instant matter, the defendants argue that they are entitled to summary judgment even assuming arguendo that the discovery rule was applicable, plaintiff still instituted the action more than two years after he knew or should have known that the surgery of October 8, 1996 caused his alleged injuries. Defendants argue that the plaintiff should be held to have known of his injury no later than October 18, 1996 when he had a follow-up appointment with Dr. Frattali, or at the latest the date of his appointment with Dr. Bilyk in November 1996.

“It is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period.” Kramer v. Dunn, 749 A.2d 984, 987-88 (Pa. Super. 2000). (citations omitted) “However, in some circumstances, although the right to institute suit may arise, a party may not, despite the exercise of diligence, reasonably discover that he has been injured.” Id. at 988. (citations omitted) In such cases the discovery rule applies. Id. “The discovery rule is a judicially created device which tolls the running of the applicable statute of limitations until the point where the complaining party knows or reasonably should know that he has been injured and that his injury has been caused by another party’s conduct.” Id. “Pursuant to application of the discovery rule, the point at which the complaining party should reasonably be aware that he has suffered an injury is a factual issue ‘best determined by the collective judgment, wisdom and experience of jurors.’ ” Id. (citations omitted) “Thus, once the running of the statute of limitations is properly tolled, only where the facts are so clear that reasonable minds cannot differ may the commencement of the limitations period be determined as a matter of law.” Id. (emphasis in original)

In the instant matter, after plaintiff had his initial surgery, he avers he did not become immediately aware that he suffered from an injury due to surgery. Rather, he believed it was due to a cyst. The evidence of record is limited to the pleadings, interrogatories and depositions of the plaintiff and his wife. The plaintiff testified that after the initial surgery, he began to suffer from discomfort in the left eye, but attributed it to normal post-surgical effects. (N.T. p. 29.) After suffering from the post-surgical discomfort, plaintiff returned to the NEI for follow-up treatment. (N.T. p. 31.) At the NEI plaintiff saw Dr. Frattali, who cleaned the infection, prescribed medication and offered to do additional surgery. (N.T. p. 33.) At this time the plaintiff testified he was not thinking of malpractice by Dr. Skettino, in fact he testified that he was led to believe by Dr. Frattali and the NEI that additional surgery was to correct the infection that had set in the eye. (N.T. p. 34.) Plaintiff testified that Dr. Frattali never even advised him that the discomfort, infection or proposed revisionary surgery were the result of Dr. Skettino’s surgical procedure. (N.T. p. 35.) Plaintiff testified that at this time he still was not thinking of malpractice, nor was he advised that it was malpractice, but rather was merely seeking treatment of a normal post-surgical infection. (N.T. p. 37.)

After Dr. Frattali recommended a further surgical procedure, the plaintiff traveled to the Wills Eye Institute in Philadelphia for a second opinion. (N.T. p. 42.) Plaintiff argues that he went to Wills Eye to seek an opinion as to the possible correction of his residual eye problems, not for a malpractice consultation. He argues he merely sought treatment for what the NEI told him was not unexpected post-surgical infection. Corrective surgery was performed at Wills Eye on November 19, 1996, without any knowledge or discovery by plaintiff that Dr. Skettino’s previous surgery was substandard. Plaintiff argues that it was not until he received a letter that Dr. Bilyk sent to his healthcare insurance provider on February 12, 1997 that he first learned Dr. Bilyk considered Mr. Flynn’s surgery a post-surgical deformity caused by Dr. Skettino’s October 18, 1996 surgery.

In the instant matter, given this testimony we are not prepared to say as a matter of law that the discovery rule is not applicable. We find pursuant to application of the discovery rule, that the point the plaintiff should reasonably be aware that he has suffered an injury is a factual issue best determined by the collective judgment, wisdom and experience or jurors.

Therefore, genuine issues of material fact exist for trial and summary judgment is denied. An appropriate order to follow.

ORDER

And now, April 27, 2001, after consideration of the submissions of the parties as well as the entire record in this matter, it is hereby ordered and decreed, that the defendants’ motion for summary judgment is denied.


source: Caselaw Access Project

author: WETTICK JR., J.,

license: Public Domain

text:
    Aronson v. Bright-Teeth Now L.L.C.

      June 19, 2002
    C.P. of Allegheny County,
    no. AR01-6310.

      Charles S. Morrow, for plaintiff.

      Matthew M. Pavlovich, for defendant.
   WETTICK JR., J.,

Defendant’s preliminary objections in the nature of a demurrer seeking dismissal of plaintiff’s complaint are the subject of this opinion and order of court. This case raises the issue of whether the federal Telephone Consumer Protection Act of 1991,47 U.S.C. §227, applies to unsolicited commercial electronic mail. It appears that this issue has not been decided in any reported opinions. See David E. Sorkin, Technical and Legal Approaches to Unsolicited Electronic Mail, 35 U.S.F.L. Rev. 325, 357 (Winter 2001) (“the applicability of the law governing the use of facsimile machines to e-mail has never been formally adjudicated”).

Plaintiff alleges that on six occasions, defendant sent unsolicited advertisements by e-mail to plaintiff’s e-mail addresses. Plaintiff seeks statutory damages of $9,000 under the TCPA. Plaintiff has sued under 47 U.S.C. §227(b)(l)(C) which provides that “[i]t shall be unlawful for any person within the United States... to use any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine.” (emphasis added) Under 47 U.S.C. §227(b)(3), a private action may be brought to recover at least $500 in damages for each violation.

Defendant contends that the TCPA does not cover e-mail. Defendant relies on the requirement that I emphasized in the previous paragraph that an unsolicited advertisement be sent “to a telephone facsimile machine.” Defendant contends that an advertisement sent to an e-mail address is not an advertisement sent to a facsimile machine because an e-mail advertisement is not printed out automatically.

Plaintiff contends that the TCPA defines a telephone facsimile machine broadly to include e-mail. The TCPA defines a telephone facsimile machine as “equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.” 47 U.S.C. §227(a)(2). (emphasis added)

Plaintiff, relying on the language in the definition of telephone facsimile machine that I have emphasized, contends that the controlling question is whether the equipment receiving the e-mail has the “capacity” to transcribe the text onto paper. In this case, we know that plaintiff’s equipment had this capacity because plaintiff’s pleadings include papers onto which the text was transcribed.

Defendant offers the following response to this contention: E-mails are not covered by the TCPA because plaintiff had the opportunity to delete the e-mails but, instead, voluntarily sent them from his computer to his printer. Since plaintiff had to intervene in the process of sending e-mails to his printer, his computer does not qualify as a telephone facsimile machine.

David E. Sorkin, Unsolicited Commercial E-Mail and the Telephone Consumer Protection Act of 1991, 45 Buff. L. Rev. 1001, 1003-12 (1997), describes the differences between telephone facsimile machines and e-mail. A conventional fax machine scans a printed document, dials a telephone number which connects it to another fax machine, and transmits a digitally encoded document image to the other machine. The other machine prints out a copy of the document. It typically requires 30 seconds to one minute to transmit each page. The recipient cannot use its fax machine until the incoming fax has been received and printed. The recipient provides the paper and ink or toner needed to produce the printed copy of the document. The recipient also bears the cost of wear and tear on its fax machine and incurs administrative costs in handling the incoming documents and keeping the machine supplied with paper and toner. This article states that the cost of printing each page with a modem machine is between four cents and 12 cents.

An e-mail message is a computer file transferred from one computer to another. A computer can send and receive e-mail messages over an ordinary telephone line using a modem. E-mail can also be exchanged among computers on a local area network or between separate networks that are interconnected. Virtually every computer system on the market today, if connected to a printer, has the capacity to print.

Unwanted e-mail does not impose the same burdens on the recipient as unsolicited fax advertising. The transmission of unwanted e-mail does not usually interfere with the recipient’s ability to use its computer system because unwanted e-mail does not interfere with receiving or sending other e-mail messages or the operation of other programs. Unwanted e-mail can be deleted before it is opened, read, or printed; unwanted e-mail will not be printed unless the recipient directs that it be printed.

Unwanted e-mail creates other burdens. Mass advertising by email is virtually free. Thus, recipients may be receiving on a daily basis large numbers of unwanted e-mail. This means that recipients may be required to spend substantial time sorting, reading, and deleting unwanted e-mail. In many instances, an e-mail cannot be deleted without examining the text of the message because the sender uses a vague or misleading subject line. Unwanted e-mail may preclude a business from promptly responding to desired e-mail because of the time spent deleting unwanted e-mail. Internet service providers incur substantial expenses (that are eventually passed on to their customers) caused by the volume of unsolicited e-mail, including the need for additional bandwidth, additional storage, and additional staff. See generally, Congressman Gary Miller, How to Can Spam, 2 Vand. J. Ent. L. & Proc. 127 (Western 2000).

While the TCPA’s definition of telephone facsimile machine can be read to include most personal computers in use today, it appears that Congress, by regulating only unsolicited advertising that would be transcribed onto paper, was concerned with recipients receiving paper they did not want. If this is so, the definition of telephone facsimile machine should not be construed to reach messages that the recipient must choose to transcribe onto paper. The question of whether unsolicited e-mail advertisements are covered by the TCPA cannot be resolved simply by concluding that the definition of telephone facsimile machine is broad enough to include unsolicited e-mail sent to a computer system which permits the recipient to transcribe the text onto paper. The controlling issue is whether Congress intended for the definition to receive such a broad interpretation.

In construing any legislation, the most basic rule of construction is that words should receive their usual and ordinary meaning unless there is a clear indication that the legislature intended for the words to be used in a different fashion. If telephone facsimile machine is given its ordinary meaning, legislation making it unlawful to send unsolicited advertisements to a telephone facsimile machine would not cover unsolicited commercial e-mail. Consequently, the TCPA should be restricted to what it describes — unsolicited faxes — unless there is a clear indication that Congress, through legislation making it unlawful to send advertisements to a telephone facsimile machine, sought also to regulate unsolicited advertisements sent by e-mail.

There is nothing in the TCPA’s legislative history indicating that the prohibition against sending unsolicited advertisements to a telephone facsimile machine was intended to cover e-mail. The legislative history of the TCPA discusses only certain unsolicited telephone solicitations (addressed in other provisions within the TCPA) and unsolicited fax advertising. Unsolicited commercial e-mail is never mentioned. See Gary S. Moorefield, Spam—It’s Not Just for Breakfast Anymore: Federal Legislation and the Fight to Free the Internet from Unsolicited Commercial E-Mail, 5 B.U.J. Sci. & Tech. L. 10, 24 (footnote omitted) (Spring 1999) (“[T]he TCPA’s legislative history lacks any Congressional intent to limit computer-to-computer transmissions.”); Sorkin, supra, 45 Buff. L. Rev. at 1016 (footnote omitted) (“Although e-mail was widely known by 1991 and unsolicited e-mail was already becoming a nuisance, e-mail is not even mentioned in any of the congressional reports or testimony related to the TCPA. Nor is there any explanation of the statutory definition of ‘telephone facsimile machine.’ ”).

Also, the legislative history includes descriptions of the burdens imposed by the unsolicited fax advertising that Congress intended to address: advertising that (1) shifts advertising costs to the recipient because the advertisement is printed by the recipient’s machine and (2) occupies the recipient’s facsimile machine so that it is unavailable for legitimate business messages. These are not burdens created by unsolicited e-mails.

A reading of section 227(b)(1)(C) of the TCPA to reach only fax solicitations is consistent with the legislative history following the enactment of the TCPA. Over the past two years, more than a dozen bills have been proposed to regulate unsolicited commercial electronic mail. Both the extent of the legislative activity and the sponsors’ lack of success are consistent with an interpretation of the TCPA to cover only telephone and fax solicitations.

In addition, there is language within other provisions of the TCPA which indicates that the term telephone facsimile machine was not intended to include unsolicited e-mail advertising. Section 227(b)(1)(C) states that it is illegal “to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement . . . .” If the definition of a telephone facsimile machine includes a computer, this section would have referred only to a “telephone facsimile machine or other device.” Section 227(d)(2) requires that each telephone facsimile machine transmission be marked on at least the first page with the time and date of transmission, the name of the sender, and the sender’s telephone number. Generally, e-mail does not have pages. See Sorkin, supra, 45 Buff. L. Rev. 1014.

Finally, under Central Hudson Gas & Electric Corp. v. Public Service Com., 100 S.Ct. 2343, 2350-51 (1980), and Board of Trustees v. Fox, 109 S.Ct. 3028 (1989), a restriction on commercial speech violates the constitution unless the restriction implements a substantial governmental interest, directly advances that interest, and is narrowly tailored to achieve the desired objective. Courts generally look to the legislative history to determine whether the Central Hudson criteria have been met. Thus, Congress would not have intended for the courts to construe the TCPA to cover unsolicited commercial e-mail unless it had created a legislative record to support the constitutionality of such legislation.

See Destination Ventures Ltd. v. Federal Communications Commission, 844 F. Supp. 632 (D. Or. 1994), aff’d, 46 F.3d 54 (9th Cir. 1995), where advertisers who used fax advertising challenged the constitutionality of the provisions of the TCPA prohibiting unsolicited fax advertisements. The court upheld the constitutionality by looking at the legislative history which included discussions that the costs of both using the machine and the paper to print out the messages were borne by the recipient, regardless of the recipient’s interest in the product or service being advertised, and that a fax machine is unable to process business communications whenever it is printing an unsolicited advertisement.

Compare Missouri v. American Blast Fax Inc., no. 00CV933, 2002 WL 508330 (E.D. Mo. 2002), where the court ruled that the provisions of the TCPA prohibiting unsolicited fax advertisements violated the First Amendment’s guarantee of freedom of speech. The court found that the government had not met the Central Hudson requirements, because the legislative history of the TCPA is “full of studies and statistics related to unsolicited phone calls, however, the reports are glaringly void of any statistical data in reference to unsolicited fax advertisements.” Id. at *9.

In the present case, there is nothing in the legislative history that would justify the regulation of unsolicited commercial e-mail. Because the regulation of commercial e-mail raises First Amendment issues and because the government bears the burden of identifying a substantial interest in regulating commercial speech, the TCPA should be construed only to cover those matters that the legislative history addressed.

For these reasons, I enter the following order of court:

ORDER

On June 19,2002, it is hereby ordered that defendant’s preliminary objections are sustained and plaintiff’s complaint is dismissed.

      . In Aronson v. Fax.com Inc., 149 P.L.J. 157; 51 D.&C.4th 421 (2001), I ruled that the Pennsylvania state courts have jurisdiction over private causes of action created by the TCPA.

        . See Sorkin, Unsolicited Commercial E-Mail and the Telephone Consumer Protection Act of 1991, supra, 45 Buff. L. Rev. at 1013:
      “Perhaps the strongest argument against such a broad interpretation of the TCPA is based upon common sense: The ordinary, commonly understood meaning of ‘telephone facsimile machine’ includes neither computers nor electronic mail. Congress almost certainly did not even consider the statute’s applicability to e-mail; the breadth of the statutory definition thus seems inadvertent.” (footnote omitted)

      . Most of the legislative history addresses the regulation of certain unsolicited telephone calls.

      . See legislation described in Moorefield, supra, 5 B.U.J. Sci. & Tech. L. at 24-34; and defendant’s submission titled Appendix of Representative Current Congressional Bills (107th Congress) [downloaded from www.access.gpo.gov].

      . On appeal to the Ninth Circuit, the plaintiffs did not contest that the government had a substantial interest in preventing the shifting of advertising costs to the consumer. The only issue that the court addressed was whether there was a “reasonable fit” between this interest and the ban on fax advertisements.


author: CREANY, L,

text:
    Commonwealth v. Miller

      June 6, 2002
    C.P. of Cambria County,
    no. 0624-2002.

      Heath Long, for plaintiff.

      Donna Doblick, for defendants.
   CREANY, L,

FACTUAL BACKGROUND

The various defendants in the above captioned cases, which cases have been consolidated for consideration by this court, were cited for violating the Pennsylvania Motor Vehicle Code. Many of the defendants were found guilty following hearings before district justices and these convictions were appealed. Various other defendants waived hearing at the district justice level and asked this court to join their cases in this appeal. The provision of the MVC for which the defendants have been cited is section 4529(a), 75 Pa.C.S. §4529(a). This requires all slow moving vehicles, those which by design cannot sustain speeds of 25 miles per hour as well as animal-drawn vehicles, to “display on the rear of the vehicle a reflective slow moving vehicle emblem as specified [in the Pennsylvania Department of Transportation regulations].” The relevant regulation specifies that a slow moving vehicle emblem shall consist of “a fluorescent yellow-orange triangle with a dark, red reflective border ....” 67 Pa. Code §165.4 et seq.

In the hearing before this court the defendants agreed to allow the testimony of several of the state troopers by whom they were cited and stipulated that the factual backdrop as to each of the other citations was identical. In effect, the defendants agreed that they were driving horse-drawn buggies on public ways without displaying the required SMV emblem. The testimony by Levi Zook, one of the cited defendants, indicated that all of the defendants are members of the Andy Weaver group of Swartzentruber Amish, a particularly conservative sect of Old Order Amish. He testified, and his testimony was supported by that of Dr. Donald B. Kraybill, an expert called by defendants, that the sect refuses to display the SMV emblem for two reasons, its gaudy color and the symbolic nature of the emblem.

The defendants’ expert and the one defendant who testified indicated that the Amish strive to live lives sepárate from the world, and they witness their beliefs to the world not only in their lifestyles, but in their clothing, their hairstyles, and even in the buggies they drive. To the Amish, the buggy expresses their religious values or identity and it is an expression to the public of their fundamental beliefs or values. The tenets by which various congregations of Old Order Amish live are not necessarily consistent. The members govern their lives by an unwritten code of conduct, the “ordnung,” which is passed down from generation to generation and which is periodically reaffirmed by the congregation. Testimony established that this congregation reaffirms its ordnung twice annually.

Although other sects may accept the use of the SMV emblem, members of this sect, or at least members of this congregation of this sect, find its gaudy color offensive and object to placing their faith in a symbol. Dr. Kraybill indicated that conservative sects of Old Order Amish strongly reject symbols or images. As Mr. Zook put it, were he to place a reflective triangle on his buggy it would indicate that he is placing his faith in that symbol rather than in God, as he is required by the ordnung.

The defendants contend that, given the factual backdrop outlined above, the statute and attendant regulation should be declared unconstitutional as applied to them under the provisions of the First Amendment to the United States Constitution and under Article I, Section 3 of the Pennsylvania Constitution.

LEGAL BACKDROP

Standard of Review, Compelling Interest Test, Burden of Proof

Defendants contend that the Pennsylvania statute and regulation that require the use of the SMV emblem violate the First Amendment to the U.S. Constitution and Article I, Section 3 of the Pennsylvania Constitution as applied to them. The First Amendment to the United States Constitution provides:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Constitution, Article I, Section 3.

The Pennsylvania Constitution states:

“All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.” Pa. Constitution Article I, Section 3.

The defendants contend that if they are compelled to display the SMV emblem not only will it affect their free exercise of religion, but will also affect their right of expression and of association. Under the Free Exercise Clause of the First Amendment to the United States Constitution, if only the right of free exercise of religion is affected, the test is merely whether there is a “rational basis” for the statute. If, however, hybrid rights are affected, such as the combination of rights the defendants here contend are implicated, those who are aggrieved are entitled to a heightened level of protection and their claims are entitled to more careful scrutiny. Chalifoux v. New Caney Independent School District, 976 F. Supp. 659 (S.D. Tex. 1997). In Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963), the court reiterated the standard under which First Amendment infringements by state regulation are to be judged: “If, therefore, the decision ... is to withstand appellant’s constitutional challenge, it must be . . . because any incidental burden on the free exercise of appellant’s religion may be justified by a ‘compelling state interest in the regulation of a subject within the state’s constitutional power to regulate —’ ” “[F]reedom of speech,” “freedom of assembly” and “freedom of worship” are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 639, 63 S.Ct. 1178, 87 L.Ed. 1628 (U.S. 1943).

In the present case, the court concludes that the statute and regulation at issue impact hybrid rights. The statute and regulation constitute an underlying burden upon the defendants’ freedom of religion, but also impact on their freedom of expression, in that it compels them to display the emblem, and freedom of association, since if one of the defendants were to display the SMV emblem he would be shunned by other members of the congregation. Even if this court were to conclude that strict scrutiny is not the appropriate standard of review in this case under the United States Constitution, it concludes that the defendants are entitled to review utilizing this same standard under the constitution of the Commonwealth of Pennsylvania. As a general proposition, the Pennsylvania Constitution may afford greater protections than that of its federal counterpart. See e.g. In re B., 482 Pa. 471, 394 A.2d 419 (1978) and Kroger Company v. O’Hara Township, 481 Pa. 101, 392 A.2d 266 (1978) (Sunday closing laws found violative of the Pennsylvania Constitution’s equal protection provisions although valid under federal law). The language of the relevant provision of the Pennsylvania Constitution insures that citizens of this Commonwealth have “a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences... [and] no human authority can, in any case whatever, control or interfere with the rights of conscience ....” This language better shields the individual from interference from the state in matters of religion than does the comparable provision of the United States Constitution.

Having determined the appropriate standard of review, the test this court is to apply is set forth as follows: to survive strict scrutiny, the classification must (1) promote a compelling government interest and (2) be narrowly tailored to that interest. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). A law is narrowly tailored if it employs the least restrictive means to achieve its goal, and if there is an evidentiary nexus between the government’s compelling interest and the classification. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989).

The burden of proving the existence of a substantial interference with the right of free exercise rests upon the religious adherent. Brynt v. Gomez, 46 F.3d 948 (9th Cir. 1995). After this threshold showing has been made, the burden then shifts to the government to demonstrate that the challenged regulation furthers a compelling state interest in the least restrictive manner.

The defendants’ beliefs must be sincerely held and religious in nature to constitute a sincerely held religious belief. Africa v. Pennsylvania, 662 F.2d 1025, 1030 (3d Cir. 1981). The Supreme Court has never established a comprehensive test for determining the “delicate question” of what constitutes a religious belief for purposes of the First Amendment. Smith v. Board of School Com’rs of Mobile County, 827 F.2d 684 (11th Cir. 1987). Upon this showing, the Commonwealth of Pennsylvania then has the burden of demonstrating both the act’s compelling interest and that its means are narrowly tailored. See Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383 (11th Cir. 1993).

Accordingly, the constitutionality of the regulation will be sustained only if the government can demonstrate that the act was adopted to serve compelling state interests that are ideologically neutral and that cannot be achieved through means significantly less restrictive of free speech or associational freedoms. United States v. Frame, 885 F.2d 1119, 1133 (3d Cir. 1989). (citations omitted) The court must also determine whether the state’s countervailing interest is sufficiently compelling to justify requiring the defendants to display the SMV emblem. United States v. O’Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

DISCUSSION

As indicated in the factual background above, the various defendants have in effect admitted that they failed to comply with the requirements of the statute by refusing to display the SMV emblem when they drove their buggy on public roadways. If they are to avoid application of this statute on the basis of its constitutionality they must, in rebuttal to the Commonwealth’s proof of a violation, show that they have sincerely held beliefs that are religious in nature and that the application of the statute and regulation would substantially interfere with these beliefs.

As Levi Zook indicated in his testimony, he and other members of this congregation of Old Order Amish moved to Cambria County from Wayne County, Ohio, approximately two years ago. He and Dr. Kraybill, an expert who appeared in his behalf, indicated that the ordnung, or tenets by which members of this congregation live their lives, are peculiar to this congregation. That ordnung is ratified periodically. Mr. Zook is a buggy maker by profession and indicated that the ordnung addresses, among other things, how buggies should look. He indicated that since about 1965 he has applied 72 inches of retroreflective gray tape outlining the rear of the buggy and has constructed the buggy so that a lantern can be hung from the left rear comer of the buggy. He indicated that he was not aware of the SMV emblem requirement when he moved to Pennsylvania and that if that requirement is enforced, he and the other members of his congregation will move back to Ohio. Further, there was testimony that a member of this congregation was incarcerated for a period of time because he was cited and convicted for failing to display the SMV emblem and he refused to pay the fine imposed by the court.

This court heard testimony of the manner in which this congregation of Old Order Amish live. As the court said at the close of testimony, it very much admires the manner in which this group lives and accepts the sincerity with which they live their faith. Members of this congregation have chosen a difficult lifestyle, rejecting all modem conveniences in an effort to witness to the world their commitment to God. In light of all of these facts, and this court’s determination that the witness was entirely credible and unfeigned, it concludes that the beliefs by which the members of this congregation live their lives are sincerely held.

This court further accepts that to impose these standards on the congregation does substantially interfere with their beliefs. Dr. Kraybill testified that for Old Order Amish, colors have religious symbolism. Bright colors are considered worldly, flashy, or vain and the members of the congregation use earth tone colors to signify their separation from the world. As they appeared in court all members of the congregation were dressed in a quiet, unobtrusive way, wearing dark brown, gray, black, and blue clothes. Dr. Kraybill further testified that red and orange are antagonistic to their values. Again the court finds this testimony to be credible and convincing. The burden thus shifts to the Commonwealth to justify enforcing requirements that the defendants find oppressive.

The Commonwealth argued that the compelling governmental interest at issue is the safety of both the Amish community and those surrounding this congregation. As previously mentioned, the freedoms at issue here “are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect.” Barnette, op. cit., supra at 639. Further, the Commonwealth must demonstrate an evidentiary nexus between the government’s compelling interest and the classification. Croson, op. cit., supra at 473. It cannot be contested that not only the safety of the Amish as they ride in their buggies, but also the safety of those members of the community surrounding the Amish who drive vehicles on the same roadways, is an interest of paramount concern to the state, and the state is justified in promulgating regulations to foster safety. Likewise, it is clear that the point of the regulation is to prevent grave and immediate danger to the Amish and the community that surrounds them. There was no argument by the defendants that fostering safety by some means is inappropriate. The argument they made is that the statute and regulation are not as narrowly tailored to protect that legitimate interest as they should be. Thus, the defendants have effectively conceded that a compelling governmental interest is at issue here. If they have not, then this court nonetheless finds that this is so. The issue then comes down to whether or not the SMV emblem is the least restrictive means to affect this legitimate interest, or to state it differently, whether the state demonstrated that public safety cannot be achieved by proposed alternative means. Minnesota v. Hershberger, 444 N.W.2d 282 at 288-89 (Hershberger I).

Each side presented experts who addressed the issue of whether the SMV emblem best fostered this governmental interest in safety on public roadways and further whether that public interest could be served by an alternative that was less burdensome on the defendants’ religious beliefs. Specifically, each expert addressed whether use of gray reflective tape in the manner as described by Mr. Zook is an acceptable alternative to the use of the SMV emblem.

Mr. Garvey, who testified on behalf of the defendants, opined that the SMV emblem’s message has been diluted due to the use of that symbol for other purposes than to designate a slow moving vehicle. He further expressed the opinion that use of the gray reflective tape in conjunction with a lantern provided superior visibility and recognition at night. He did concede, however, that when one is in a position to observe color, the SMV marker is superior. Specifically, during the daytime, the marker was more apparent than the reflective tape. (Transcript of testimony of April 10,2002, (TT) atp. 69.) Rick Varner, who testified for the Commonwealth, indicated in testimony and in his report that reaction to any stimulus in a traffic setting is a four-step process which includes visibility, identification, decision, and reaction. He conceded that “the gray tape retroreflectivity for nighttime use is equal to or better than the retroreflectivity of the SMV emblem but this statement is only true during non-adverse conditions.” (Commonwealth’s exhibit, (CX) 2 at p. 6.) He argued, however, that this merely went to visibility and did not impact on any of the other three steps in the driver reaction scenario. Specifically, it did not aid in identification, thus enabling the driver to make a decision and to react. Further, he pointed out that the orange portion of the SMV emblem provided a great deal of contrast and was especially effective during the daylight and in adverse weather conditions. (CX 2 at p. 6.) He also pointed out that 41 states require the use of the emblem on slow moving vehicles and argued, convincingly, that this uniformity aids in identification and decisionmaking. Further, and most persuasively to this court, he cited to research which revealed that 60.9 percent of all horse and buggy accidents occurred in daylight, approximately .8 percent occurred at dawn and 4 percent occurred at dusk. (Appendix to CX 2.) Thus, approximately 2/3 of all horse and buggy accidents occurred during either low light or full daylight conditions. Both experts have thus agreed that the SMV emblem is the most visible warning device during those hours when two out of every three horse and buggy accidents occur and may best warn of the presence of a horse and buggy on a roadway to enable drivers to see the carriage, identify it and make a decision that could protect the lives and safety of the public, Amish and non-Amish alike.

This court is aware that the burden is on the Commonwealth in proving the validity of enforcing the SMV emblem requirements and does not mean to imply that this burden has fallen back on the defendants. However, defendants’ own expert failed to show that in a majority of situations the gray reflective tape is the equivalent of the SMV emblem. This court finds that, on the basis of all testimony offered, the gray reflective tape is not as effective as the SMV emblem over the spectrum of situations and particularly during the majority of time when the effectiveness of one device or another may well prevent injury and death. As a result, this court concludes that the safety of the traveling public, both those within the Amish community and those in the communities surrounding them, cannot be served by this alternative which the Amish suggest is less burdensome on their religious beliefs.

Mr. Zook indicated that the religious convictions of his congregation are so strong that this court’s decision may compel them to move from this area. That would be a tragedy to this community and would weigh heavily on this court. As this court stated at the close of testimony, it admires the strength of choice that the members of this congregation have made. The court admires the lifestyles of this community and accepts that the sincere religious beliefs of these individuals have caused them to follow a life that would be much too difficult for many outside that community to adopt. This court, however, does not have legislative authority and, for the reasons stated above, concludes that it is not in a position to exempt these individuals from the effect of this statute and its attendant regulation. If change is to be had it must come from the legislative arm of government.

As a result, this court issues the following:

ORDER

Wherefore, June 6, 2002, it is hereby ordered and directed that:

(1) Defendants’ appeals from summary proceedings in this matter are dismissed.

(2) Each defendant is adjudicated guilty of violating the provisions of the Pennsylvania Motor Vehicle Code, 75 Pa.C.S. §4529(a), and is ordered to pay a fine in the amount of $95;

(3) The defendants have the right to appeal this decision to the Superior Court of Pennsylvania within 30 days, and if an appeal is filed, the execution of sentence will be stayed.


author: CHESLOCK, J.,

text:
    Broyles v. Hunt-Wesson Inc.

      March 21, 2002
    C.P. of Monroe County,
    no. 3740.

      Daniel Munley, for plaintiff.

      Pamela A. Carlos, for defendant.
   CHESLOCK, J.,

The relevant facts are as follows. On or about June 8,1998, plaintiff, Sandra J. Broyles, filed an action sounding in negligence and breach of warranty against defendants, Hunt-Wesson Inc. and Giant Food Stores Inc. Plaintiff contends that she suffered injuries to her throat caused by a foreign substance contained in the contents of a package of pudding, about three-quarters of which she ate. On February 1,1999, defendants filed an answer and new matter. Thereafter, discovery was conducted and plaintiff deposed. Defense counsel made multiple requests to have the opportunity to submit the container for inspection. Plaintiff’s counsel advised that the package was available at his office but not for shipment. On November 20, 2001, defendants were informed that the container was inadvertently discarded. Plaintiff did not submit an expert report and did not have the container inspected. Defendants have filed a motion for summary judgment and plaintiff answered. Plaintiff did not appear for argument held on March 4, 2002. We are now ready to decide the issue.

The party moving for summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Drapeau v. Joy Technologies Inc., 447 Pa. Super. 560, 563, 670 A.2d 165, 167 (1996). The record is viewed in the light most favorable to the non-moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 98, 674 A.2d 1038, 1041 (1996). The party opposing summary judgment may not rest upon the mere allegations or denials of the pleadings but must file a response 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. 1035.3. The court must ignore controverted facts in the pleadings and restrict its view to allegations that are uncontroverted and to material filed in support of and in opposition to a motion for summary judgment. Nationwide Mutual Insurance Co. v. Nixon, 453 Pa. Super. 70, 75, 682 A.2d 1310, 1313 (1996). Summary judgment shall be granted only where the right to it is free and clear from doubt. Musser v. Vilsmeier Auction Co. Inc., 378 Pa. Super. 657, 544 A.2d 1048 (1988).

There is precedent among our appellate courts favoring summary judgment where evidence is lost or simply does not exist in physical form, thereby preventing the moving party from making out a prima facie case. In Williams v. A-Treat Bottling Co., 380 Pa. Super. 195, 551 A.2d 297 (1988), the Superior Court affirmed a directed verdict for defendants where the plaintiff could not prove the presence of kerosene contained within a soda bottle:

“It is beyond dispute that, regardless whether an action for physical harm caused by an allegedly defective ... product sounds in negligence or in strict liability, there must be some proof the product was indeed unsafe, and caused damages to the plaintiff....

“In the matter sub judice, there simply does not exist one shred of evidence, in the form of either lay or expert testimony, that any kerosene was ever found in or on the soda bottle, or that wife-appellee ever ingested kerosene, much less that appellant somehow caused kerosene to be present in or on the bottle.

“While Pavlish himself did admit to the presence of a malfunctioning kerosene heater on his business premises, he also testified emphatically that it was not possible that kerosene had gotten into the soda, as even in the event of a cracked cap, the kerosene would have had to intrude underneath the cap onto the lid of the bottle....

“Furthermore, wife-appellee admitted in her own deposition that she had not noticed any cracking or wear about the bottle top, and had not placed any portion of the bottle into her mouth, but had only touched the bottle top ... to her lips____She also admitted that she had never obtained the results of the police analysis of the bottle contents and did not know if kerosene had been discovered....

“Lastly despite wife-appellee’s assertions as to what she was told at the hospital, [the doctor] indicated in his deposition that, at no time was kerosene detected in either her bloodstream or... records ...

“While the verdict winner is entitled to a favorable light, all affirmative facts helpful to his case, and all reasonable inferences thereof, he may not recover on the basis of evidence which is diametrically opposed to the facts alleged. . . . Where the only facts in evidence in support of his theory of recovery would require speculation and conjecture to find in the plaintiff’s favor, the evidence is insufficient to support the verdict.” Williams v. A-Treat Bottling Co., supra at 203-205, 551 A.2d at 301-302. (citations and footnote omitted)

The Superior Court in Williams v. Pepsi-Cola Metropolitan Bottling Co. Inc. reached a similar result. That court affirmed a jury finding in favor of the bottler where the plaintiff claimed he was cut by shards of glass from within the bottle. Williams v. Pepsi-Cola Metropolitan Bottling Co. Inc., 240 Pa. Super. 578, 362 A.2d 314 (1976). The lower court found that in the absence of production of the bottle or the pieces of glass, the sole record in support of plaintiff’s version consisted of self-serving, contradictory testimony by the plaintiff. Id. Therefore, the appellate court concluded that the verdict was not against the law, therefore the manufacturer was not negligent. Id.

However, our Supreme Court has since adopted the tripartite spoliation test for determining liability in negligence of product liability actions where key evidence is lost, altered or destroyed. Schroeder v. PennDOT, 551 Pa. 243, 710 A.2d 23 (1998). This rule was first enunciated in Schmid, where the Third Circuit Court stated:

“We believe the key considerations in determining whether ... a sanction is appropriate should be: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter similar conduct in the future.” Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994).

In Schmid, the plaintiff was not at fault. Rather, the investigator disassembled a saw where the issue was whether the saw’s safety guard was defective. Id. Moreover, such action was necessary to determine if plaintiff had a claim. Id. Second, there was no severe prejudice suffered by defendant. For one thing, as a design defects case the defendant was able to inspect other saws for the same problem. Id. Further, the investigator did not intend to impair defendant’s ability to inspect the saw. Id. at 80. Therefore, the Schmid court found that a “spoliation inference,” or jury instruction that allows the jury to assume destroyed evidence unfavorable to the offending party, was far better than barring all evidence found during the plaintiff’s investigation. Id. at 81.

A party that reasonably anticipates litigation has an affirmative duty to preserve relevant evidence. Where such evidence is destroyed sanctions may be appropriate, including outright dismissal of claims, exclusion of countervailing evidence, or jury instruction on the “spoliation inference.” Howell v. Maytag, 168 F.R.D. 502 (M.D. Pa. 1996).

Applying the first element of the spoliation test to the present case, the plaintiff had a duty to preserve the container of the pudding. Defendants repeatedly requested her to turn over the container for testing at a national laboratory. Plaintiff denied these requests. In turn, not only did plaintiff not have the container tested by her own expert, but she failed to look to see whether or not part of the container was missing. On the other hand, plaintiff cannot be blamed for the loss of the “foreign body” alleged to be contained in the content of the pudding. The doctor decided to push the substance down the esophagus rather than extract it. Also, the medical record, which clearly states that a “piece of food or beige foreign body” was lodged in plaintiff’s throat, is reliable evidence. Therefore, the plaintiff is not at fault for the loss of the primary evidence.

Second, the degree of prejudice to the defendant as a result of not being able to examine the pudding content is high. Unlike Schmid, this is not a design defect case but rather plaintiff is claiming the particular product is defective. Loss of the container is also prejudicial because it is essential to prove defendants’ rebuttal theory that plaintiff, by mistake, ate part of the plastic container.

Pennsylvania courts have granted summary judgment in past similar cases. For example, in Roselli, the court granted summary judgment because plaintiff could no longer make out a prima facie case. Roselli v. General Electric Co., 410 Pa. Super. 223, 599 A.2d 685 (1991). There, plaintiff failed to preserve shards of glass for inspection where he claims a coffee carafe manufactured by defendant exploded. Id. at 229, 599 A.2d at 688. There was prejudice because the negligence averred went to the particular product and not a design defect and defendant replied that the accident was caused by prior wear and tear.

However, our facts are distinguishable. First, the plaintiff did not lose the primary evidence, the contents of the pudding. Second, the plaintiff has produced reliable circumstantial evidence in the form of the doctor’s report indicating that she choked on something. It is well established that a plaintiff should not be barred from using circumstantial evidence where available. Furthermore, the product was not abnormally used, as plaintiff testified that she ate the pudding with a stainless steel spoon. Thus, the fact-finder could infer causation based on res ipsa loquitur. Finally, the plaintiff suffered injury to. her throat and still has trouble swallowing. Certainly we agree that the loss of direct, physical evidence is crucial in this case; we stop short of finding that plaintiff is unable to state a claim.

Applying the third prong of the spoliation test, we find that a sanction less than summary judgment will not hinder the rights of defendants and will deter similar conduct; specifically, a jury instruction that evidence of the “foreign substance” would not have proven negligence, and that the jury is free to assume that the object swallowed may have been a piece of the container. Also, plaintiff shall be precluded from offering testimony or documents that the injuries were caused by a defective product. However, plaintiff should not be barred from admitting medical and other testimony to show that she swallowed something which caused injury to her throat.

ORDER

And now, March21,2002, defendants Hunt-Wesson Inc. and Giant Food Stores Inc.’s motion for summary judgment is hereby denied. The following sanctions against plaintiff, Sandra J. Broyles, are imposed:

(1) Plaintiff is barred from offering evidence that the product container was defective.

(2) An instruction will be given to the jury that they are free to assume lost or destroyed evidence is unfavorable to the plaintiff.