author: SCHMEHL, P.J.,

text:
    Commonwealth v. Payero

      C.P. of Berks County,
    no. 5170-08.

      John T. Adams, district attorney, for Commonwealth.

      Laney Payero, pro se.

      Osmer S. Deming, former PCRA counsel.
    September 8, 2010
   SCHMEHL, P.J.,

— The defendant/ appellant, Laney Payero, (“appellant”) appeals from this court’s denial of the appellant’s motion for post conviction collateral relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

This case stems from the fatal shooting of a Reading woman at work on a night shift in a fast-food restaurant. On Wednesday, July 18, 2007, at 3:30 a.m., there was a shooting at the drive-through window of the McDonald’s restaurant located at 9th and Spring Streets in Reading, Berks County, Pennsylvania (“McDonald’s restaurant”). Police Officer Chris Dinger (“Officer Dinger”), Reading Police Department, was dispatched to the McDonald’s restaurant. When officer Dinger arrived, he observed a female McDonald’s employee (“the victim”) on the floor of the drive-through section of the McDonald’s restaurant, with a gunshot wound to the left side of her head. The victim was later identified as Shawnee Koch, who was forty years old at the time of her death.

At 3:37 a.m. on July 18, 2007, Emergency Medical Technician Dave Ciabattoni (“E.M.T. Ciabattoni”) was dispatched to the McDonald’s restaurant. When E.M.T. Ciabattoni arrived, he observed a victim on the floor of the drive-through section of the McDonald’s restaurant, with an apparent gunshot wound to the left side of her head.

The victim was transported to the emergency room of the Reading Hospital and Medical Center. Dr. Eugene Reilly, Reading Hospital and Medical Center Trauma and Surgical Intensive Care Unit, later pronounced the victim dead from a gunshot wound to the head. The next day, Dr. Neil A. Hoffman, Forensic Pathologist at Reading Hospital and Medical Center, performed an autopsy on the body of the victim, and determined the cause of death to be a gunshot wound to the head.

On July 18, 2007, at 6:00 a.m., officer Robert Gilbert (“officer Gilbert”), Reading Police Department, was detailed to the 1200 block of North Mill Street, Reading, PA, regarding an attempted arson. Officer Gilbert located a blue four door 1992 Honda Accord LX, with the license plate “GSY-3691” (“the vehicle”). The vehicle was registered to Florencio Sanchez, residing at 827 Douglas Street, Reading, Pennsylvania. Sergeant Phil Bentz (“Sgt. Bentz”), Reading Police Department, responded to the 1200 block of North Mill Street, Reading, PA, and observed a discharged shell casing lying on the rear driver side floor of the vehicle, in plain view. Sgt. Bentz also observed a burn pattern on the front driver seat of the vehicle. Vince’s Towing towed the vehicle to the sallyporte at City Hall, where it was secured. Later that morning, C.I. Ivan Martinez (“C.I. Martinez”), Reading Police Department, interviewed the owner of the vehicle, Florencio Sanchez. Florencio Sanchez told C.I. Martinez that the vehicle had been stolen from the parking lot off of the 800 block of Douglass Street, Reading, PA, and that the burn marks had not been there the previous day.

B. Procedural Background

The commonwealth charged the appellant, born April 29, 1989, and two co-defendants for the above-described murder and related crimes. The appellant was charged with ten (10) crimes: murder of the second degree; murder of the third degree; Robbery; Aggravated Assault of the first degree; Aggravated Assault of the second degree; Theft by Unlawful Taking or Disposition; Receiving Stolen Property; Possessing Instruments of Crime; Conspiracy to Commit Robbery; and, Conspiracy to Commit Theft by Unlawful Taking.

On April 13, 2009, a jury pool was assembled for jury selection and the commonwealth and defense were ready to proceed to trial when the appellant attempted to enter into a plea bargained nolo contendere plea. The appellant, however, was unable to complete the plea colloquy, and the court proceeded to jury selection. After the jury was selected but before trial could begin, appellant waived his right to a jury trial, opted to take a plea of nolo contendere, and participated in the plea colloquy.

The court went through an extensive oral colloquy with the defendant. As a result of the nolo contendere plea, the charges were reduced to murder of the third degree only, and appellant was sentenced to 10-20 years imprisonment for his crime, with credit for time served. Appellant was represented by private counsel through the time of his plea.

The appellant then filed a check-the-box motion for Post Conviction Collateral Relief (“PCRA Petition”) on July 1,2009. Therein, the appellant asserted that there was a constitutional violation which undermined the truth-determining process such that a reliable adjudication could not have taken place; ineffective assistance of counsel; guilty plea unlawfully induced; and, unavailability of exculpatory evidence subsequently available. This court appointed PCRA counsel, who later submitted a “No Merit Letter” pursuant to Finley and Turner. This court reviewed PCRA counsel’s no merit letter and found its reasoning and conclusions to be sound.

On February 17, 2010, PCRA counsel filed a motion for leave to withdraw appearance. On March 8, 2010, appellant filed a notice of intent to proceed Pro Se. On that same date, this court entered a notice of intent to dismiss appellant’s PCRA petition. On April 1, 2010, this court granted PCRA counsel’s motion for leave to withdraw appearance, and denied appellant’s PCRA petition, without hearing.

On April 29, 2010, the appellant filed an appeal (“notice of appeal to the Superior Court”) from this court’s denial of the PCRA petition. This court entered a 1925(b) order on May 21,2010, directing appellant to file a concise statement of errors complained of on appeal.

II. DISCUSSION

This court is unable to address the exact errors complained of on appeal in appellant’s present appeal from the denial of the PCRA petition, because the appellant has not yet filed a concise statement of errors complained of on appeal, pursuant to this court’s 1925(b) order. However, in appellant’s notice of appeal to the Superior Court, appellant listed a section entitled “The question presented is,” the subsections of which this court addresses briefly, below. This court then also briefly addresses the appellant’s claims in his original PCRA petition.

A. Appellant’s Notice of Appeal

In appellant’s “the question presented is” section of his notice of appeal to the Superior Court, the appellant listed the following five matters, summarized below:

1. The common pleas court relied on insufficient evidence to find beyond a reasonable doubt that the appellant participated in committing any crime;
2. The appellant was denied rights under the confrontation clause to confront a witness with testimony against him;
3. Ineffectiveness of trial/guilty colloquy counsel, insofar as trial/guilty colloquy counsel “threatening” appellant with the recommendation that appellant take a guilty plea, rather than face a probability of a conviction at trial;
4. The trial court erred in accepting PCRA counsel’s Finley letter, and in dismissing appellant’s PCRA petition without a hearing; and,
5. Trial/guilty colloquy counsel was ineffective for failure to preserve all of appellant’s issues.

Appellant’s first matter bears no clear relation to the proceedings in this case. This court did not, in fact, find beyond a reasonable doubt that the appellant participated in the crime and of course would not have acted as fact-finder at trial. The case did not proceed to trial, and the appellant instead decided to take a plea, rather than face the likelihood of a conviction at trial. In doing so, the appellant benefitted from reduced charges against him, and advance knowledge of the outcome of the case.

Notwithstanding the above, as the commonwealth indicated during the colloquy, there was considerable evidence that would have been presented against the appellant, had the appellant chosen to go to trial to defend the charges against him. The commonwealth indicated it would prove that appellant was present when the co-defendants discussed the plans for the robbery, and then appellant supplied the co-defendants with information to procure the gun to commit the robbery, acted as lookout during the robbery which resulted in the victim’s death, and made phone calls to the co-defendants while he acted as lookout during the robbery. Further, there was video footage of the appellant running around the side of the McDonald’s to assume his position as look out during the robbery, as well as ample records of the phone calls between the appellant and the co-defendants throughout the robbery. Additionally, one of the two co-defendants had already been found guilty at trial, and the other had already entered into a guilty plea. Although this court did not find, and here could not have found, beyond a reasonable doubt against the appellant, because of the nature of the proceedings at hand, the evidence presented at colloquy proceeding indicated a likelihood of conviction, which factored strongly into appellant’s decision to take a plea.

Appellant’s claim of a denial of his right to confront witnesses against him also has no bearing in the proceedings in this case. In keeping with the above, when the appellant opted to take a plea and avoid the likelihood of conviction if he proceeded to trial, he benefitted from reduced charges and advance knowledge of the outcome of the case against him, but he also waived his right to trial, which would have included the proceeding presenting the witnesses against him. Inherently, by pleading nolo contendere, the legal equivalent of a guilty plea, the appellant waived trial proceedings.

This court also found that appellant’s claim of ineffectiveness of counsel was meritless. In evaluating claims for ineffectiveness of counsel, a court presumes counsel to have been effective. To overcome this presumption, the appellant must meet the requirements of a three-prong test. First, appellant must show that the underlying claim is of merit; second, that counsel had no reasonable basis for the action or inaction taken; and third, that appellant has been prejudiced by the action or inaction, such that the outcome of the proceedings would have been different but for trial counsel’s action or inaction. Commonwealth v. Washington, 592 Pa. 698, 713, 927 A.2d 586, 594 (Pa. 2007) (internal quotations and citations omitted).

In trial counsel’s representation of the appellant, this court saw no indication of any ineffectiveness. Trial counsel, in advising the appellant to take a plea rather than face a likely conviction at trial, in so doing gave the appellant sound legal advice, and made a realistic assessment of the possible outcomes. Trial counsel’s advice on the record at the plea colloquy that the nolo contendere plea was the legal equivalent of a guilty plea was accurate, and recommendation that the appellant would face a less severe outcome if he were to take the plea was sound legal advice firmly grounded in reasonable basis, and advice that any competent attorney would likely have given to their client in the same situation. As such, this court finds there to be no merit to this claim of ineffectiveness of counsel.

As to appellant’s claim of error by this court in accepting PCRA counsel’s Finley letter, and dismissing appellant’s PCRA petition without hearing, this court again believes this claim to be meritless. To the contrary, this court acted within the guidelines of the Post Conviction Relief Act, wherein after PCRA counsel submitted a Finley letter of no merit, and PCRA counsel submitted a petition to withdraw as counsel, this court conducted an independent review of the file and determined the issues raised by appellant were indeed meritless. This court then granted PCRA counsel’s petition, and entered a notice of intent to dismiss appellant’s PCRA petition. Finally, this court dismissed appellant’s PCRA petition. This court was in thorough agreement with PCRA counsel that appellant’s claims were without merit, and that there was no factual support in the record for appellant’s claims in his PCRA petition.

Finally, with respect to appellant’s last claim marked in his appeal to Superior Court, as stated above, again, this court found there to have been no ineffectiveness on the part of trial counsel.

B. Appellant’s PCRA Petition

In Appellant’s original check-the-box PCRA petition, he claimed eligibility for relief premised on the following four claims, summarized below:

1. A violation of his constitutional rights which undermined the truth-determining process such that no reliable adjudication could have taken place;
2. Ineffective assistance of counsel;
3. Guilty plea unlawfully induced; and,
4. Unavailability of exculpatory evidence at the time of trial which had since become available.

This court found PCRA counsel’s Finley letter to thoroughly address the appellant’s PCRA petition claims. As indicated above, this court conducted an independent review of the record, and arrived at its own conclusion that there was no merit to appellant’s PCRA petition claims. As such, this court found PCRA counsel’s Finley letter to more than adequately delineate the inadequacies of appellant’s PCRA petition.

To conclude, in sum, this court found that: the evidence that was to be presented at trial against the appellant was likely to lead to appellant’s conviction; appellant’s trial and plea counsel was effective in his representation of appellant; appellant entered into a plea knowingly, voluntarily and intelligently; and, the reasoning of PCRA counsel’s no merit letter was sound in its evaluation that appellant’s petition was without merit, and such that dismissal of appellant’s PCRA petition, and the allowance of appellant’s PCRA counsel to withdraw, were both appropriate.

As such, for the above stated reasons, this court respectfully recommends that the instant appeal be denied.


source: Caselaw Access Project

author: DEMCHICK-ALLOY, J,

license: Public Domain

text:
    Tricome v. Welch

      C.P. of Montgomery County,
    no. 09-19448.

      Francis X Clark, for plaintiff.

      John J. O ’Brien III, for defendants.
    August 20, 2010
   DEMCHICK-ALLOY, J,

— Plaintiff appeals from this court’s order filed August 5, 2010, which sustained defendants’ preliminary objections in the nature of a demurrer and dismissed plaintiff’s amended complaint with prejudice.

FACTS

Plaintiff commenced the instant action by filing a complaint purporting to state a single claim styled as “libel.” Defendants filed a pleading styled as “defendants’ preliminary objections to amended complaint,” which objected to jurisdiction and service, purported to raise the affirmative defense of the statute of limitations, and demurred to all of the claims in the amended complaint. Plaintiff responded by filing an amended complaint. The amended complaint is substantially similar to the original complaint, the main differences being that the amended complain added paragraphs pertaining to service and venue, a lengthy quotation of an allegedly defamatory communication about plaintiff, and four additional claims based upon substantially the same facts.

Plaintiff’s amended complaint avers that he bought defective goods from defendants. When he tried to return the goods, he was dissatisfied with defendants’ conduct in accepting the return and filed a complaint with the Better Business Bureau. The amended complaint states that “[i]n the defendants’ response to the BBB complaint, not only did they lie about what happened, they libeled plaintiff.” (amended complaint, ¶ 22.) This averment is identical to the averment made in paragraph twelve of the original complaint, except that the amended complaint substitutes “plaintiff’ for “Tricorne.” The amended complaint does not further describe the alleged communication by defendants to the Better Business Bureau.

The amended complaint then alleges: “plaintiff has found recently that a few people have libeled him. One is by the defendants....” (amended complaint, ¶ 26.) Paragraph twenty-six of the amended complaint is substantially similar to paragraph sixteen of the original complaint, the main difference being that paragraph twenty-six quotes the alleged statement by the defendants:

This guy is a crackpot. I am an online merchant who recently conducted business with this man. This man advised, for no apparent reason when placing an order, that he had recently “SOLD” a successful online business which was built on offering superior customer service. In another “tid-bit” of his stories, he commented that he was in the middle of a huge lawsuit with the SEC. Somehow, I sensed on meeting this man on the telephone that something was “very very wrong with this man.” My instinct said throw this one back into the sea — he is not a keeper.
Well, apparently this man had a problem with his purchase and became extremely aggressive about needing to return his item. This is not a problem, it was the methods. Received several emails about threatening law suits, suing for damages, etc. All I can say is this man apparently has a history of making frivolous legal claims — -these folks are out there. We must be hopeful that by logging our experience here may [sic] allow someone else to use this information to decide to “watch out!”

(Amended complaint, ¶ 26.)

Plaintiff’s amended complaint pleads five counts. Count I is styled as “fraud,” but the amended complaint does not aver that defendant induced plaintiff to rely on a false representation to his detriment. Count II is styled as “breach of contract,” but the amended complaint does not aver the existence of a contract, including its essential terms, a breach of a duty imposed by the contract, or damages caused by the breach. Count III is styled as “negligence” and count V is styled as “gross negligence,” but the amended complaint does not plead facts establishing that defendants owed plaintiff any duty of care, that defendants breached the duty of care, or that the breach proximately caused injury to plaintiff. Count IV is styled as “slander/libel and defamation,” but the amended complaint does not plead facts establishing all of the elements of an action for defamation as set forth in 42 Pa.C.S. § 8343(a)(l)-(6).

Defendants filed a pleading styled as “defendants’ preliminary objections to amended complaint,” which was virtually identical to the objections lodged against the original complaint. By order filed August 5, 2010, this court sustained the demurrers and dismissed plaintiff’s amended complaint with prejudice. The instant appeal followed.

DISCUSSION

When deciding a demurrer, all well-pleaded material facts set forth in the complaint and all inferences fairly deducible from those facts are accepted as true. Krentz v. Consolidated Rail Corp., 589 Pa. 576, 586, 910 A.2d 20, 26 (Pa. 2006). The pleadings and inferences drawn from the pleadings must be construed in the light most favorable to the party against whom the demurrer was filed. Smith v. Brink, 561 A.2d 1253, 1254-1255 (Pa. Super. Ct. 1989).

Count I of the amended complaint is styled “fraud.” The elements of a claim for intentional or fraudulent misrepresentation are: (1) A representation; (2) which is material to a transaction between the parties; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) proximate causation of injury. David Pflumm Paving & Excavating, Inc. v. Foundation Services Co., 816 A.2d 1164, 1171 (Pa. Super. Ct. 2003). The amended complaint avers no facts to establish any of these elements, and therefore this court did not err by sustaining defendants’ demurrer to count I.

Count II of the amended complaint is styled as “breach of contract.” The elements of a claim for breach of contract are the existence of a contract, including its essential terms, a breach of a duty imposed by the contract, and damages caused by the breach. Pennsy Supply, Inc. v. American Ash Recycling Corp., 895 A.2d 595, 600 (Pa. Super. Ct. 2006). The amended complaint avers no facts to establish any of these elements, and therefore this court did not err by sustaining defendants’ demurrer to count II.

Count III of the amended complaint is styled as “negligence” and count V is styled as “gross negligence.” The elements of a claim for negligence are: a duty of care owed by the defendant to the plaintiff; a breach of that duty; and proximate cause of injury to the plaintiff. Merlini v. Gallitzin Water Authority, 602 Pa. 346, 354, 980 A.2d 502, 506 (Pa. 2009). The amended complaint avers no facts to establish any of these elements, and therefore this court did not err by sustaining defendants’ demurrer to counts III and V.

Count IV of the amended complaint is styled as “slander/libel and defamation.” The elements of a claim for defamation are established by 42 Pa.C.S. § 8343(a) (l)-(6). A complaint asserting a claim for defamation must plead facts supporting each of those elements. Smith v. Wagner, 588 A.2d 1308, 1311 (Pa. Super. Ct. 1991). Subsection (a)(1) requires plaintiff to aver facts that show the defamatory character of the communication at issue. 42 Pa.C.S. § 8343(a)(1). The allegation in paragraph 21, that defendants lied in a communication to the Better Business Bureau, does not show that the alleged lie was defamatory. “It is the function of the court to determine whether the challenged publication is capable of a defamatory meaning.” Thomas Merton Center v. Rockwell Intern. Corp., 497 Pa. 460, 463, 442 A.2d 213, 215 (Pa. 1981). To be defamatory, a communication must tend to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Id. A lie may or may not be defamatory, hence the amended complaint does not satisfy the burden of pleading facts that show the defamatory character of the communication to the Better Business Bureau.

With regard to the communication quoted in paragraph twenty-six of the amended complaint, this court assumes, arguendo, that plaintiff could prove defendants published it, even though the amended complaint admits that it was published anonymously. Subsection 42 Pa.C.S. § 8343(a)(3) requires plaintiff to aver facts that show that the allegedly defamatory statement referred to him. The quoted remarks nowhere identify plaintiff either expressly or by reasonable implication.

When disposing of preliminary objections in the nature of a demurrer, the trial court must grant the plaintiff an opportunity to amend the complaint to cure the defect if “there is some reasonable possibility that amendment can be accomplished successfully.” Carlino v. Whitpain Investors, 499 Pa. 498, 505, 453 A.2d 1385, 1388 (1982). If “allowance of an amendment would, however, be a futile exercise, the complaint may properly be dismissed without allowance for amendment.” Id. In this case, allowance of further amendment would have been a futile exercise. The claim for libel in amended complaint did nothing to cure the defect in the claim for libel in the original complaint. Moreover, the amended complaint added four new claims that were deficient as a matter of law. Plaintiff has been given two opportunities to plead facts establishing a prima facie claim against defendants, and the evolution of his pleadings gives no reason to believe that a third opportunity would yield a different result.

CONCLUSION

Upon consideration of the foregoing discussion, the undersigned respectfully submits that the order filed August 5, 2010 should be affirmed.


author: SCHMEHL, P.J,

text:
    Nationwide Mut. Ins. Co. v. Gingrich

      C.P. of Berks County,
    no. 09-2266.

      Edward J. McKarski, for appellant.

      Daniel E.R Bansher, for appellee.

      June 21, 2010
   SCHMEHL, P.J,

— Petitioner/appellant Nationwide Mutual Insurance Company (“appellant”) appeals from this court’s December 28, 2009 order, which denied appellant’s petition to vacate revised arbitration award, and ordered that the revised order of the arbitrator, dated January 30, 2009, was thereby confirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant commenced the present action by filing with this court, on February 27, 2009, a “petition to vacate revised arbitration award issued January 30,2009, together with application, pursuant to 42 Pa. C.S.A. §7342(b), for confirmation of arbitration award issued September 17, 2004” (“the petition”). In the petition, appellant described the underlying action. The underlying action began when respondent/appellee Scott Gingrich (“appellee”) commenced an action against appellant, docketed with this court at 02-10292 (“the 2002 action”). Therein, appellee sought recovery of medical and wage benefit claims and other damages under a motor vehicle insurance policy issued by Nationwide, following a motor vehicle accident in early 2001, and which resulted in alleged spinal injury to appellee.

After the 2002 action was commenced, both parties entered into a release that memorialized their j oint decision to resolve the matter at high/low arbitration (“the release”). Therelease, dated January2004, designated Richard Orwig, Esquire as the arbitrator (“arbitrator Orwig”). The release terms specified that arbitrator Orwig would enter separate verdicts on all claims for wage benefits and outstanding medical bills, together with reasonable and recoverable attorney fees and interest under the MVFRL. The release also delineated a number of rules and stipulations to apply to the arbitration before arbitrator Orwig.

Following arbitration held March 5, 2004, Arbitrator Orwig issued a detailed arbitration decision on September 17,2004 (“ArbitrationDecision”). The arbitration decision went through the basis for the decision, including the parties’ respective positions, factual background, witness reports, testimony given, the injury itself, and an explanation of the medical facts and behavior of appellant, all of which led to arbitrator Orwig’s decisions. The arbitration decision made the following three conclusions:

1) (Appellee) is entitled to receive and the (appellant) ordered to pay all past medical expenses incurred as of April 4, 2002. No determination is hereby being made as to future medical expenses as the determination of reasonableness and necessity cannot be made based upon the limited medical documentation provided.
2) (Appellee) is entitled to receive and (appellant) is ordered to pay lost wage benefits commencing February 1,2002 through May 14,2002, to be calculated pursuant to a twenty (20) hour work week.
3) The (appellant) had a reasonable foundation for disputing claimant’s demand for wage loss and medical benefits. The (appellant) did not act in bad faith, and therefore, there is no award for attorney’s fees, expenses, and interest.

See Exhibit “B” to the petition, filed February 27, 2009.

Three days after the issuance of the arbitration decision, on September 20, 2004, appellee sent a letter to arbitrator Orwig, requesting that he reconsider the decision. Appellee based the request on three main reasons. First, under the release, the parties had agreed that if arbitrator Orwig found there was wage loss, then the wage loss would “consume the remainder of the wage loss benefits under (appellee’s) policy with (appellant)”; however, arbitrator Orwig had awarded wage loss benefits through May 14, 2002, an issue not submitted for consideration. Second, appellee stated that arbitrator Orwig overlooked a piece of the evidence submitted, namely that Dr. Krassen had not provided work restrictions on the appellee, whereas that expert actually did, in his report, state that the appellee would have to likely permanently reduce his work from 75 hours weekly, down to 40 hours weekly of light duty. Third, appellee stated that arbitrator Orwig did not decide the issue of medical expenses and treatment as it was submitted to him, in that certain treatment was statutorily mandated to be paid by appellant, as were interest and attorneys’ fees.

Arbitrator Orwig held conference October 20, 2004 with both parties to discuss the import of appellee’s letter. Arbitrator Orwig memorialized the conference outcomes that same day in a letter to both parties. The letter rephrased appellee’s grounds for the reconsideration, and reiterated that appellant had already established his objections to the reconsideration requests. The letter further indicated that, as previously discussed, appellant was to formally respond to the request for reconsideration, and that arbitrator Orwig would then issue a decision on the reconsideration by November 17, 2004. There was no follow up written response by appellant which raised any substantive response to the request for reconsideration, although appellant sent a letter on October 29,2004 which asked for another hearing, seemingly duplicative of the one just held.

A year later, counsel for appellee sent another letter to arbitrator Orwig, asking for a decision on the reconsideration. It was in response to this letter that appellant then sent his next correspondence, wherein stated that appellee had not made sufficient motion for reconsideration, despite appellee’s letter three days after the decision, and appellant asked for a dismissal of the reconsideration request. A virtually identical pair of correspondence was sent just over another year later, in February of 2006.

The next notable event in the arbitration took place on March 10, 2008, where appellee again asked arbitrator Orwig for a decision on the reconsideration request. Appellant sent a responsive letter on March 18, 2008, stating that the arbitrator had never granted reconsideration, although this court notes the conference held October 2004 and correspondence surrounding same. Appellee further wrote arbitrator Orwig on April 24, 2008, again asking for a decision on the reconsideration.

On May 30, 2008, arbitrator Orwig held another conference, this time by telephone, with both parties. Subsequently, appellee renewed the request for a decision on the reconsideration by letter on June 4, 2008, which repeated the requests contained in the September 20,2004 letter. Arbitrator Orwig then wrote a reply, indicating that he believed he had in his files sufficient materials to finally issue his decision on the reconsideration. Appellant then sent a responsive letter on June 11, 2008, stating that the request for reconsideration was not timely, but if arbitrator Orwig did find it to be, then reserving the right to reply on the merits at some future time, despite the chance to do so within the same letter, the multiple chances to reply at previous conferences, and Arbitrator Orwig’s recommendation to do so in his October 20, 2004 letter. Appellant sent a similar letter again on June 17, 2008.

Finally, arbitrator Orwig did issue a revised arbitration decision on January 30, 2009, albeit several years after the original decision. Appellant then acted and filed its February 27, 2009 petition. The revised arbitration decision made the following holdings:

A. Unpaid medical bills would be paid by nationwide, as well as interest;
B. The arbitrator awarded lost wage benefits of $20,000.00 to appellee as per the insurance policy; and,
C. The arbitrator awarded attorney fees exceeding $20,000.00 to appellee, after finding that the treatments were necessary.

Appellant filed the petition to vacate on February 27, 2009, as stated above. This court held argument on the petition on August 21, 2009. Following argument, on December 28, 2009, this court entered an order which denied the petition to vacate the revised arbitration award, and ordered that the revised order of the arbitrator of January 30, 2009 was thereby confirmed.

On January 27,2010, appellant filed an appeal from the December 28, 2009 order. Appellant then filed a timely concise statement of errors complained of on appeal. On February 25, 2010, the prothonotary of this court entered the appellee’s praecipe for judgment, in accordance with Pa. R.C.P. 236.

II. DISCUSSION

Appellant complains of the following errors on appeal:

1. Whether the court committed an error of law in its order dated December 28, 2009 and entered December 29, 2009 by confirming revisions to an existing common-law arbitration award where the written arbitration agreement between Nationwide and Gingrich explicitly stated that the arbitration decision “on any legal, factual, evidential issue and verdict shall be final with no right of appeal absent clear and convincing proof of fraud or collusion,” but where, despite objection by Nationwide, the arbitrator subsequently issued a revised arbitration award completely devoid of any finding or determination that the original arbitration award (1) was issued as a result of clear and convincing evidence of either fraud or collusion; (ii) was based upon fraud, misconduct, corruption or collusion; (iii) failed to adjudicate a primary issue that was submitted for arbitration; or (iv) contained simple mistakes and/or ambiguities that appeared on the face of the original arbitration award?
2. Whether the court committed an error of law in its order dated December 28, 2009 and entered December 29, 2009 by vacating an existing common-law arbitration award in favor of a revised arbitration award where the written arbitration agreement between Nationwide and Gingrich explicitly stated that the arbitration decision “on any legal, factual, evidential issue and verdict shall be final with no right of appeal absent clear and convincing proof of fraud or collusion,” but where, despite any objection by Nationwide, the arbitrator subsequently issued a revised arbitration award completely devoid of any finding or determination that the original arbitration award (i) was issued as a result of clear and convincing evidence of either fraud or collusion; (ii) was based upon fraud, misconduct, corruption or collusion; (iii) failed to adjudicate a primary issue that was submitted for arbitration; or (iv) contained simple mistakes and/or ambiguities that appeared on the face of the original arbitration award?
3. Whether the court committed an error of law in its order dated December 28, 2009 and entered December 29, 2009 by confirming revisions to a common law arbitration award that entailed and were founded upon considerations other than those specifically delineated by and through clear and unambiguous language contained in a provision of a written agreement between Nationwide and Gingrich expressly stating that the arbitration decision “on any legal, factual, evidential issue and verdict shall be final with no right of appeal absent clear and convincing proof of fraud or collusion,” and further, where the revised arbitration determination was completely devoid of any finding or determination that the original arbitration award was (i) the result of clear and convincing evidence of either fraud or collusion; (ii) based upon fraud, misconduct, corruption or collusion; (iii) due to a failure to adjudicate a primary issue that was submitted for arbitration, or (iv) the result of correcting simple mistakes and/or ambiguities that appeared on the face of the original arbitration decision and award?
4. Whether the court committed an error of law in its order dated December 28, 2009 and entered December 29, 2009 where such order confirmed an award of attorney’s fees in favor of Gingrich that was previously disallowed under the original arbitration decision, but where such an award of attorney’s fees entailed and was founded upon considerations other than those specifically delineated by and through clear and unambiguous language contained in a provision of a written agreement between Nationwide and Gingrich expressly stating that the arbitration decision “on any legal, factual, evidential issue and verdict shall be final with no right of appeal absent clear and convincing proof of fraud or collusion,” and further, where the revised arbitration determination awarding such attorney’s fees was completely devoid of any finding or determination that the disallowance of such attorney’s fees in the original arbitration award was (i) the result of clear and convincing evidence of either fraud or collusion; (ii) based upon fraud, misconduct, corruption or collusion; (iii) due to a failure to adjudicate a primary issue that was submitted for arbitration; or (iv) the result of correcting simple mistakes and/or ambiguities that appeared on the face of the original arbitration decision and award?
5. Whether the court committed an error of law in its order dated December 28, 2009 and entered December 29, 2009 where such order confirmed an award of future medical expenses in favor of Gingrich that was previously disallowed under the original arbitration decision due to limited medical documentation, but where such an award of future medical expenses entailed and was founded upon considerations other than those specifically delineated by and through clear and unambiguous language contained in a provision of a written agreement between Nationwide and Gingrich expressly stating that the arbitration decision “on any legal, factual, evidential issue and verdict shall be final with no right of appeal absent clear and convincing proof of fraud or collusion,” and further, where the revised arbitration determination awarding such future medical expenses was completely devoid of any finding or determination that the disallowance of such future medical expenses in the original arbitration award was (i) the result of clear and convincing evidence of either fraud or collusion; (ii) based upon fraud, misconduct, corruption or collusion; (iii) due to a failure to adjudicate a primary issue that was submitted for arbitration; or (iv) the result of correcting simple mistakes and/or ambiguities that appeared on the face of the original arbitration decision and award?
6. Whether the court committed an error of law in its order dated December 28, 2009 and entered December 29, 2009 where such order confirmed the award of wage loss benefits in favor of Gingrich in an amount substantially greater than the wage loss benefits awarded to Gingrich under the original arbitration decision, but where such an increase in the award of wage loss benefits entailed and was founded upon considerations other than those specifically delineated by and through clear and unambiguous language contained in a provision of a written agreement between Nationwide and Gingrich expressly stating that the arbitration decision “on any legal, factual, evidential issue and verdict shall be final with no right of appeal absent clear and convincing proof of fraud or collusion,” and further, where the revised arbitration determination increasing the award of such lost wages was completely devoid of any finding or determination that the lower amount of lost wages in the original arbitration award was (i) the result of clear and convincing evidence of either fraud or collusion; (ii) based upon fraud, misconduct, corruption or collusion; (iii) due to a failure to adjudicate a primary issue that was submitted for arbitration; or (iv) the result of correcting simple mistakes and/or ambiguities that appeared on the face of the original arbitration decision and award?

Upon review of the above errors complained of on appeal, this court finds all six go to the same issue of the propriety of this court’s confirmation of the revised arbitration award. This court did not find cause to disturb the arbitrator’s decisions.

The standard of review for common law arbitration is very limited. Gargano v. Terminix Intern. Co., L.P., 784 A.2d 188, 193 (Pa.Super., 2001). In order for a court to modify or vacate an arbitration award, there must be fraud, a clear abuse of discretion, or flagrant disregard for the law. Specifically, the moving party has the burden of showing that there was fraud, misconduct, corruption or other irregularity which caused the rendition of an unjust, inequitable or unconscionable award. Id. An appellant who seeks to have a court overturn an arbitration award must show by clear and precise evidence that there is both an underlying irregularity and resulting inequity. Id. Arbitrators are the “final judges of both law and fact, and an arbitration award is not subject to reversal for a mistake of either.” Id.

The common law doctrine of functus officio provides that an arbitrator’s authority is exhausted after issuing a final arbitration decision. Stack v. Karavan Trailers, Inc., 864 A.2d 441 (Pa. Super., 2004). However, there are three exceptions to this doctrine, when an arbitrator can modify or correct an arbitration award upon application of one of the parties. Id. Those three exceptions are the following: first, an arbitrator can correct a mistake when it is apparent on its face; second, where the award does not dispose of an issue submitted, such that the arbitrator’s function has not yet been exhausted; and third, where the award leaves doubt as to its thoroughness, such that the arbitrator is entitled to clarify. Id. This court found the exceptions applicable here.

In reviewing the record, and after argument held, this court found that despite delay, there was no irregularity or resulting inequity. As posited by appellee, the release delineated the various issues that were to be addressed, and which were within the scope of arbitrator Orwig’s authority, under the mutual agreement of the parties. Following the issuance of the original arbitration decision, appellee brought to the arbitrator’s attention that not everything that had been placed before the arbitrator had been disposed of. The fact that the arbitrator somehow lost track of the case or took an extraordinary amount of time to decide it is not grounds for reversal. As such, this court believes there was no such abuse of discretion, and the arbitration decisions should remain undisturbed.

In sum, this court found that while arbitrator Orwig’s decisions followed a protracted timeline, the parties to had full opportunity to participate in the process and state their positions, and the reasoning and proceedings in support of arbitrator Orwig’s decisions to have been well-supported. The end result of the process, both the arbitration decision and the revised arbitration decision, were just and equitable decisions within the framework of the issues before and parameters placed upon arbitrator Orwig.

Further, appellee’s original request for modification of the original arbitration award was timely made, within one week of the arbitrator’s decision, in that it here was made a mere three days after the original decision. Further, although appellant has cited to the portion of the release which stated that the verdict of arbitrator Orwig would be final with “no right of appeal absent clear and convincing proof of fraud or collusion,” this court found this provision to address the standard rights of appeal of either of the parties to the courts directly, and not to the arbitrator himself for reconsideration of his own award. Appellant had extensive opportunity before the issuance of the revised arbitration award to state with particularity the grounds upon which that party’s contentions of impropriety within the arbitration were predicated. Lastly, this court found there was no legal cause to disturb the outcome of arbitration and the arbitrator’s decision, and that the burden of proof, in order for the decision to be vacated, was not met by appellant.

For all of the above stated reasons, this court respectfully recommends that the instant appeal be denied.

The prothonotary shall forward the remainder of the file to the Superior Court.


author: MOORE, J,

text:
    PNC Bank v. PECO Energy Co.

      C.P. of Montgomery County,
    no. 06-14594.

      Craig E. Ziegler, for plaintiffs.

      Mark C. Clemm, for defendants.
    June 11, 2010
   I. FACTS AND PROCEDURAL HISTORY

MOORE, J,

— PNC Bank, N.A. and Mervin J. Hartman, executors of the will of Elizabeth Gordon Geasland, deceased (hereinafter “the plaintiffs”) have appealed from this court’s December 16,2009, order finding in favor of PECO Energy Company and Bart Levy (hereinafter “the defendants”) and against the plaintiffs in a bench trial.

The defendant Bart Levy purchased a parcel of real estate in Whitemarsh Township, Montgomery County, in December 1999 (hereinafter “the Levy property”). (NT, 12/15/09, p. 149). This property was adjacent to parcels of real property owned by defendant PECO Energy Company (hereinafter “the PECO Property”) and Frederick and Elizabeth Gordon Geasland (hereinafter “the plaintiffs’ property”). (NT, 12/15/09, pp. 131-132).

The Levy property did not initially have direct access to or from any public roadway. (NT, 12/15/09, pp. 149-150). At the time of Levy’s purchase of the land, the Levy property could only be accessed via a private road shared by a number of residents in the area. (NT, 12/15/09, pp. 152-153). On March 14, 2001, Levy obtained a license to use a driveway located on the PECO property which provided direct access from his property to the nearest public roadway. (NT, 12/15/09, p. 150).

This driveway was originally constructed by the Geaslands to provide direct access from their property to the nearest public roadway. (NT, 12/14/09, pp. 179-182). PECO permitted the Geaslands to construct the driveway across the PECO property per the terms of a revocable license, which was non-transferable and was terminable by either party upon thirty-days notice. (NT, 12/15/09, p. 165-167). The Geaslands’ license did not provide them with a right of first refusal or option to purchase the tract of land upon which the driveway was built.

After purchasing his property, Levy realized that a portion of his out-buildings and the well which supplied his drinking water were located on the PECO property. (NT, 12/14/09, p. 224). Levy became concerned that this might affect the value of his property. (NT, 12/14/09, p. 224). Levy also wanted to ensure that his property had access to the public road via the driveway. (NT, 12/15/09, pp. 152-153). As a result, Levy began negotiations with PECO to purchase the portion of the PECO property containing his out-buildings, well and driveway access to the public road. (NT, 12/15/09, pp. 153-154).

Starting on March 26, 2003, and continuing into February 2004, Levy regularly contacted representatives of PECO in an effort to purchase the PECO property. (NT, 12/14/09, pp. 225-237). PECO entered into negotiations for the sale of a portion of its land with Levy after becoming concerned that Levy would pursue costly litigation against PECO in an effort to resolve his property issues. (NT, 12/15/09, pp. 161-162). The Geaslands were aware of PECO’s negotiations with Levy and had advised PECO that it would be interested in purchasing the property; however, the Geaslands never made a formal offer. (NT, 12/14/09, p. 58).

On February 24, 2006, after approximately two-years of negotiations, Levy and PECO entered into an agreement of sale for the purchase of the portion of the PECO property containing Levy’s out-buildings, well and driveway access to the public road. (NT, 12/15/09, pp. 161-162). The agreement of sale, and ultimately the deed conveying the PECO property to Levy, provided for and granted an easement which permits the owners of the plaintiffs’ property unobstructed access to the driveway so long as they only use it to gain access to a single residence. (NT, 12/15/09, p. 165). The purpose of this easement was to protect the Geaslands’ access to their property from the driveway where they previously owned a mere revocable license. (NT, 12/15/09, p. 165). The language of the easement also sought to protect Levy in the event the Geaslands or their successors attempted to further develop their property, which could affect the value of the Levy property. (NT, 12/15/09, p. 167).

On October 12, 2006, the plaintiffs filed a complaint against Levy and PECO containing a single count alleging a civil conspiracy between the defendants. A bench trial was held before this court on December 14 and 15, 2009. Based upon the evidence presented at trial, this court found in favor of the defendants and against the plaintiffs. The plaintiffs filed post-trial motions which this court denied by an order dated March 31, 2010. The plaintiffs are now appealing this court’s findings in the bench trial, claiming that the judgment was against the weight of the evidence and that this court capriciously disregarded the evidence.

II. DISCUSSION

This court, sitting as the trier of fact in a bench trial, is the sole judge of credibility and conflicts in the evidence. Miller v. Brass Rail Tavern Inc., 702 A.2d 1072, 1076 (Pa. Super. Ct. 1997). On an appeal of a bench trial’s judgment, all evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict winner. Rizzo v. Haines, 520 Pa. 484, 492, 555 A.2d 58, 61 (Pa. 1989). The findings of the trial court will only be overturned on appeal if there is insufficient evidence or if the trial court committed an error of law. Id. The plaintiffs do not allege any legal error by this court in the bench trial. Moreover, this court as the trier of fact is to determine credibility and resolve conflicts in the evidence.

The plaintiffs simply did not present sufficient evidence to establish a claim for civil conspiracy. The elements necessary to support a claim for civil conspiracy are as follows:

(1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose;
(2) an overt act done in pursuance of the common purpose; and
(3) actual legal damage.

Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. Ct. 2008); Goldstein v. Phillip Morris, Inc., 854 A.2d 585, 590 (Pa. Super. Ct. 2004), proof of malice or an intent to injure absent justification is essential to a claim for civil conspiracy. Miller v. Post Publishing Co., 110 A. 265 (Pa. 1920).

In Rosenblum v. Rosenblum, 181 A. 583, 585 (Pa. 1935), the Pennsylvania Supreme Court stated the test in a suit for civil conspiracy:

Assume that what is done is intentional, and that it is calculated to do harm to others. Then comes the question, was it done with or without “just cause or excuse”? If it is bona fide done in the use of a man’s own property such legal justification would exist not the less because what was done might seem to others to be selfish or unreasonable. But such legal justification would not exist when the act was merely done with the intention of causing temporal harm, without reference to one’s own lawful gain, or the lawful enjoyment of one’s own rights.

Furthermore, proof of a conspiracy must be made by full, clear and satisfactory evidence. Phillips, 959 A.2d at 437. “The mere fact that several parties happened to exercise independent rights at or about the same time does not constitute an actionable conspiracy.” Fife v. Great Atlantic & Pacific Tea Co., 52 A.2d 24, 39 (Pa. 1947). “Absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act.” McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 660 (Pa. Super. Ct. 2000) (citing Pelagatti v. Cohen, 536 A.2d 1337, 1342 (Pa. Super. Ct. 1987)).

The plaintiffs failed to prove that the defendants engaged in any unlawful activity or engaged in lawful activity by unlawful means or with an unlawful purpose. The plaintiffs claimed that PECO and Levy conspired and acted for the unlawful purpose of causing harm to the plaintiffs’ estate by depriving the plaintiffs of their previous unrestricted access to a public road. The evidence presented at trial, however, established that PECO and Levy entered into a contract for the sale of real property which was owned by PECO. (NT, 12/14/09, p. 224). Two parties entering into a contract for the sale of land owned by one of the parties is not an unlawful action, even if the result of the contract is a decrease in the value of a neighbor’s property. See Fife, 52 A.2d 24. Plaintiffs’ counsel conceded this point during trial. (NT, 12/15/09, p. 162).

Further, the plaintiffs presented no evidence that PECO and Levy entered into a contract for the sale of the PECO property through unlawful means or with an unlawful purpose. PECO has the legal right to sell its property to whomever it chooses. An officer for PECO established that PECO did not give Levy any special consideration or treat him any different from other potential buyers of PECO property. (NT, 12/15/09, p. 162). From March 2003 to February 2004, Levy regularly contacted PECO representatives in an attempt to purchase the PECO property. (NT, 12/14/09, pp. 237). The agreement of sale went through multiple levels of internal review over the course of more than two years of negotiations, and Levy ultimately paid more than the highest appraised value for the PECO property. (NT, 12/15/09, pp. 157-162). Levy was also required to pay for the appraisal of the PECO property and the legal and engineering costs necessary to subdivide the PECO property. (NT, 12/15/09, pp. 153-154). The evidence presented at trial demonstrated that, in all aspects of the sale of the PECO property, PECO and Levy engaged in legal activity by legal means and with a legal purpose.

Furthermore, the plaintiffs failed to prove that PECO and Levy intended to injure the plaintiffs through the sale of the PECO property. Proof of malice or an intent to injure absent justification is an essential element of proof of a conspiracy. See Miller, 110 A. at 266; Miller v. Harvey, 64 A. 330 (Pa. 1906); Irvine v. Elliot, 55 A. 859 (Pa. 1903). Levy sought to purchase the property to enhance the value of his own land and to ensure he maintained direct access to the public road. (NT, 12/14/09, p. 224).

Even if the plaintiffs had introduced evidence that Levy intended to injure them, there was no evidence that PECO acted with malice. Throughout the trial, representatives for PECO established that they made sure the sale of the PECO property did not interrupt the plaintiffs’ access to its property, which was accomplished by providing the easement for the benefit of the plaintiffs’ property. (NT, 12/15/09, pp. 165, 168). This easement, which was a permanent right of access which runs with the land, is a far superior right than the prior license agreement which was terminable by PECO on thirty-days notice for any or no reason. Ultimately, PECO’s intentions in selling the PECO property were based on legitimate business decisions, including the threat of legal action by Levy. (NT, 12/15/09, pp. 161-162). Clearly, the evidence presented at trial shows that neither PECO nor Levy had any intention of injuring the plaintiffs through the sale of the PECO property.

Moreover, the plaintiffs failed to prove that they suffered any damages as a result of the sale of the PECO property to Levy. In order to establish a claim for civil conspiracy, a plaintiff must prove it suffered legal damages as a result of the defendant’s actions. Phillips, 959 A.2d at 437. The plaintiffs argued that they suffered a decrease in the value of their property because the sale of the PECO property caused the plaintiffs to lose their unrestricted access to a public road.

The evidence presented at trial established that the plaintiffs actually benefitted from the sale of the PECO property. Prior to the sale of the PECO property, it is unclear whether the plaintiffs had any legitimate right to the use of the driveway. At best, the plaintiffs held a license to use the driveway in order to access their property. This license was fully revocable upon thirty-days notice. (NT, 12/15/09, p. 165-167). As a result of the sale of the PECO property, the plaintiffs’ property became the dominant estate in connection with an easement for the use of the driveway, a far greater right than the plaintiffs’ previous revocable license.

III. CONCLUSION

Based upon the foregoing analysis, this court’s determination was proper and should be affirmed.


author: PICCIONE, J,

text:
    Commonwealth v. Capece

      C.P. of Lawrence County,
    no. 65 of 2007, C.R.

      Kathleen Fee-Baird, assistant district attorney, for Commonwealth.

      Thomas W Leslie, for defendant.
    October 18, 2010
   PICCIONE, J,

— Before this court for disposition is the commonwealth’s omnibus pre-trial motion of a motion in limine. The commonwealth requests thatthe court rule on the admissibility of 92 e-mails between defendant Phillip Jerry Capece (hereinafter, “defendant”) and Shana Niglio (hereinafter, “the complainant”). The commonwealth also asks that the court address the admissibility of the defense that defendant’s ex-wife is responsible for the present charges against him.

The background ofthis case is as follows: defendant, who was 65 years old at the time the alleged crimes occurred, was charged with corruption of minors (18 Pa.C.S.A. § 6301(a)) and unlawful contact with a minor (18 Pa. C.S.A. § 6318(a)(1)) after hard copies of approximately one hundred e-mails were found in the mailbox of Audrey Niglio, the mother of the then 16-year-old complainant. The e-mails consisted of a series of messages over a six-month period in 2006 between users of one of the complainant’s e-mail addresses and one of defendant’s e-mail addresses. Some of the e-mails contained sexual references and an offer to exchange $50.00 for sexual favors.

At defendant’s trial in July of 2007, approximately 38 of the e-mails were admitted into evidence during the testimony of the complainant without objection from defense counsel. During the following day of trial, defense counsel began objecting to the reading of some of the e-mails that were admitted into evidence. The court overruled defendant’s objection, and the jury ultimately returned a verdict in favor of the commonwealth. On December 3, 2007, defendant appealed to the Superior Court, arguing that this court abused its discretion in admitting the e-mails because no foundation as to the genuineness of the e-mails was established prior to their admission. The Superior Court determined that defendant waived the issue because defense counsel failed to make a timely objection to the admission of the 38 e-mails. As a result, on December 9, 2008, the Superior Court affirmed the judgment of sentence.

Defendant subsequently filed a petition for relief under the Post Conviction Relief Act, arguing, in part, that defense counsel was unconstitutionally ineffective for failing to lodge a timely objection to the authentication of the 38 e-mails. In an opinion dated September 22, 2009, this court stated that “sufficient circumstantial evidence was not presented by the commonwealth to authenticate the 38 e-mails prior to their admission into evidence at trial.” Commonwealth v. Capece, No. 65 of 2007, C.R. (C.P. Lawrence September 22, 2009). As a result, the court granted defendant’s petition, vacated the convictions against him, and granted him a new trial.

On November 30, 2009, the commonwealth filed the instant omnibus pre-trial motion of a motion in limine. Hearings were held on March 8, 2010 and May 25, 2010. During the hearings, the commonwealth presented the testimony of the complainant, the complainant’s mother, and corporal John Stepansky of the Pennsylvania State Police in order to lay a proper foundation for and authenticate the 92 e-mails that may be presented at the new trial.

Rule 901 of the Pennsylvania Rules of Evidence states that the “requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Pa.R.E. 901(a). The testimony of a witness with knowledge that a particular matter is what it is claimed to be may satisfy the requirement of authentication. Pa.R.E. 901(b) (1). Circumstantial evidence may also be sufficient to authenticate a document. Commonwealth v. Brooks, 508 A.2d 316, 318 (Pa. Super. 1986). Such circumstantial evidence may include “factors relating to the contents of the writing and the events before and after the execution of the writing.” Id. at 321.

“The courts of this commonwealth have demonstrated the wide variety of types of circumstantial evidence that will enable a proponent to authenticate a writing.” In re F.P., 878 A.2d 91, 94 (Pa. Super. 2005) (citing Brooks, 508 A.2d at 319). For example, in In re F.P., the Superior Court addressed whether a transcript of computerized instant message conversations between the victim of an aggravated assault and the appellant was properly authenticated. In re F.P., 878 A.2d at 93. The instantmessage transcript contained threats and accusations by the appellant that corroborated other evidence presented by the commonwealth. Id. The appellant objected to the admission of the instant messages because it was not shown that the appellant sent the messages. Id. In an effort to authenticate the instant message transcript, the commonwealth demonstrated that, during the conversations, the appellant identified himself by his first name, referenced the fact that the victim had approached authorities about the messages, and confirmed the source of the dispute between the appellant and the victim. Id. at 95. In reaching its conclusion, the Superior Court reasoned:

Essentially, appellant would have us create a whole new body of law just to deal with e-mails or instant messages. The argument is that e-mails or text messages are inherently unreliable because of their relative anonymity and the fact that while an electronic message can be traced to a particular computer, it can rarely be connected to a specific author with any certainty. As appellant correctly points out, anybody with the right password can gain access to another’s e-mail account and send a message ostensibly from that person. However, the same uncertainties exist with traditional written documents. A signature can be forged; a letter can be typed on another’s typewriter; distinct letterhead can be copied or stolen. We believe that the e-mail messages and similar forms of electronic communication can properly be authenticated within the existing framework of PaJRJE. 901 and Pennsylvania case law... We see no justification for constructing unique rules for admissibility of electronic communications such as instant messages; they are to be evaluated on a case-by-case basis as any other document to determine whether or not there has been an adequate foundational showing of their relevance and authenticity.

Id. at 95-96. Based on the above-mentioned standard, the Superior Court found that the evidence presented by the commonwealth was “clearly sufficient to authenticate the instant message transcripts as having originated from [the defendant].” Id. at 95.

In the case sub judice, the commonwealth presented similar evidence demonstrating that the e-mails sent to the complainant originated from defendant. The complainant testified that she had known defendant through her mother for several years. N.T., 3/8/10, at 6. According to her testimony, the complainant often visited defendant’s home and performed household chores, such as mowing the lawn, for defendant. Id. at 7. During one of these visits, defendant provided the complainant with his e-mail address. Id. at 8.

Although defendant resided with his live-in girlfriend, defendant and the complainant often had the opportunity to spend time alone together. Id. During these visits, defendant and the complainant discussed a variety of topics, including mowing defendant’s lawn, performing other chores, riding defendant’s motorcycle, learning from defendant how to drive, fighting over the computer with the complainant’s sister, transferring from New Castle High School to Laurel High School, the complainant’s poor spelling, the complainant’s blonde hair, various friends and family, and exchanging sex for money. Id. at 9, 27,30,47,48, 52,53, 55, 57,60,62,64,72; N.T.; 5/25/10, at 7, 8.

Shortly after exchanging e-mail addresses with defendant, the complainant began receiving e-mails from defendant’s e-mail address on her computer at school. N.T., 3/8/10, at 8. She testified that she received approximately 140 e-mails from defendant. Id. The e-mails were often signed “Jerry,” a name to which defendant answered. Id. at 28, 29, 32, 46. The e-mails also addressed the same topics defendant and the complainant discussed in their private conversations. Id. at 20, 21, 27, 30, 38, 44, 47, 48, 52, 54, 56, 58, 61, 63, 70, 72; N.T., 5/25/10, at 7, 8, 13-18.

As in In re F.P., the commonwealth presented sufficient evidence to authenticate the e-mails as having originated from defendant. The e-mails from defendant’s e-mail address were often signed with a name defendant uses. The e-mails also addressed numerous personal details about the lives of both defendant and the complainant. Because the 92 e-mails were properly authenticated, the commonwealth’s request for the admission of the copies of the 92 e-mails is granted.

The commonwealth’s omnibus pre-trial motion of a motion in limine also contains a request that the court rule on the admissibility of the defense that defendant’s ex-wife is responsible for the present charges against him. The motion references defendant’s previous attempt to present testimony that, back in 1989, his ex-wife attempted to persuade relatives to falsely accuse defendant of sexual molestation. During defendant’s first trial, the court denied the request to present such testimony, and the Superior Court found no abuse of discretion with that decision. Therefore, the court similarly refuses to allow any presentation of evidence or testimony relating to this 1989 incident involving defendant’s ex-wife unless defendant can establish that such evidence is somehow relevant and related to the present case. Outside of testimony regarding this 1989 incident, there is no other evidence of defendant’s ex-wife’s involvement in this case currently before the court. Neither party addressed this issue during the hearings or in their proposed findings of fact and conclusions of law. Because no other evidence supporting the defendant’s defense has been presented, the court cannot rule on whether such evidence would be admissible. Therefore, with respect to any testimony regarding defendant’s ex-wife’s attempts in 1989 to persuade relatives to falsely accuse defendant of sexual molestation, the commonwealth’s motion is granted, but in regards to any other potential evidence relating to defendant’s ex-wife, the court refrains from making a decision at this time.

ORDER OF COURT

And now, this October 18, 2010, this court having held hearings on March 8, 2010 and May 25, 2010 concerning the commonwealth’s omnibus pre-trial motion of a motion in limine, with Assistant District Attorney Kathleen Fee-Baird, Esquire, appearing and representing the commonwealth, and Thomas W. Leslie, Esquire, appearing and representing the defendant Phillip Jerry Capece, and upon a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. The commonwealth’s omnibus pre-trial motion of a motion in limine is granted pursuant to the attached opinion.
2. The clerk of courts shall properly serve notice of this order and opinion upon counsel of record; and if a party has no counsel, then upon said party at his last known address as contained in the court’s file.


author: FOX, J.,

text:
    Spahn v. Philadelphia Zoning Bd. of Adjustment

      Gary Spahn, for pro se.

      Glen D. Kimball and William H. Ewing, for appellees.
    September 8, 2010
   OPINION AND ORDER

FOX, J.,

— Gary Spahn (Spahn) has appealed a decision of the Philadelphia Zoning Board of Adjustment (ZBA) which granted dimensional variances for the construction of two single-family dwellings at property located 756-760 S. Chadwick St. (property). The owners of the property, Chadwick Street Properties, L.P. (Chadwick) have intervened.

FACTUAL AND PROCEDURAL SUMMARY

Chadwick applied to the Department of Licenses and Inspections (L&I) for a zoning and use registration to allow for the relocation of lot lines to create two lots from three and to erect two new single-family dwellings on the property. The application was refused for the following reasons:

- Proposed building height 41 ’2” exceeded maximum allowed 35 feet
- Proposed four stories exceeded maximum allowed of three
- Proposed lot sizes were less than required
- Proposed open area was 216 ft.; 324 ft required.
- Proposed side yard less than the required 5 feet

An appeal was filed to the ZBA. In addition to the variance requested, Chadwick requested a certificate to allow curb cuts for parking purposes. The Zoning Board Examiner discovered errors in the refusal and issued a corrected refusal. The revised refusal changed the zoning designation from R-10 to R-10A. This change increased the disparity between proposed plan and the dimensional minimums required under the Zoning Code.

Apublic hearing was held on August 26,2009. Counsel for Chadwick and its architect appeared before the ZBA. Spahn appeared and testified in opposition to the variance request. All were given ample opportunity to testify. The ZBA received letters from city council President Anna C. Verna and the South of South Neighborhood Association. Both indicated that the opinions of the neighbors were mixed and therefore neither took a position on the application. ThePhiladelphiaPlanning Commission voiced no objection to the requested variances and the requested parking certificate. The board granted the variances and the parking certificate. Spahn filed this timely appeal. The court received the certified record from the ZBA and its findings and conclusions. Briefs were submitted and the court heard oral argument.

DISCUSSION

The ZBA found that Chadwick met its burden and established that a literal enforcement of the provisions of the Zoning Code would result in an undue hardship. The ZBA concluded an unnecessary hardship would result in that the small size of the existing lots made it impractical to construct dwellings without the requested variances. Further the ZBA found that the shape and size of the lots were unique. Finally, the ZBA found that the record, as a whole, established that Chadwick met all the requirements for the approval of the variances and the issuance of the Parking Certificate.

The standard of review is deferential to the ZBA. Where no further evidence is gathered, the court limits its scope of review to, “whether the board committed a manifest abuse of discretion or an error of law.” Valley View Civic Ass’n. v. Zoning Bd. of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983). The board commits an abuse of discretion if its decision is not based upon “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id at 555, 462 A.2d at 640. When the reviewing court considers no further evidence, “questions of credibility and evidentiary weight are solely the province of the zoning hearing board.” Whitpain Township Bd. of Supervisors v. Whitpain Township Zoning Hearing Bd., 550 A.2d 1355 (1988). Thus, it is the ZBA who establishes whether relevant evidence exists to meet all the necessary factors. The reviewing court does not alter the board’s conclusion unless it is not supported by substantial evidence. View Civic Ass’n. at 559, 462 A.2d at 642.

The ZBA may grant a variance if there is no conflict with the public interest and if the circumstances of the area are such that a “literal enforcement of the provisions of this [code] would result in unnecessary hardship.” Philadelphia Zoning Code § 14-1801(1). The burden is on the party seeking the variance. A variance is granted only if the reasons are “substantial, serious and compelling.” Valley View Civic Ass’n. at 555, 462 A.2d at 640. The three key requirements set forth by § 14-1802(1) of the code are: “1) unique hardship to the property; 2) no adverse effect on the public health, safety or general welfare; and 3) the variance is the minimum necessary to afford relief.” E. Torresdale Civic Ass’n v. Zoning Bd. of Adjustment at 324, 639 A.2d 446, 447 (1994).

Hardship is proven by showing that “(1) the physical features of the property are such that it cannot be used for the permitted purpose; or (2) that the property can be conformed for a permitted use only at a prohibitive expense; or (3) that the property has no value for any purpose permitted by the zoning ordinance.” Hertzberg v. Zoning Bd. of Pittsburgh, 554 Pa. 249, 257, 721 A.2d 43, 47 (1998) (citing Allegheny W. Civic Council v. Zoning Bd. of Pittsburgh, 547 Pa. 163, 167, 689 A.2d 225. 227 (1997). The party seeking the variance must also prove that the hardship is “unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on an entire district.” Valley View Civic Ass’n. at 555, 462 A.2d at 640. When deciding whether to grant a variance, all evidentiary factors as a whole must be taken into consideration, including “relationship to adj acent structures, as well as the surrounding neighborhood.” W. Cent. Germantown Neighbors v. Zoning Bd. of Adjustment, 827 A.2d 1283, 1288 (Pa. Commw. Ct. 2003).

Mr. Spahn resides at 745 S. 17th St. and shares an alley to the rear of his property with the Chadwick property (the three lots). He argued that the proposed plan has substantially less open space than the 30 percent required in a R-10A zoned area. The additional bulk and the fourth floor will interfere with the peaceful enjoyment of his property. He contends that the properties on this block of Chadwick street are virtually the same size and therefore the hardship is not unique and this is a matter that should not be addressed by the issuance of a variance but by rezoning the district. Hill District Project Area Committee, Inc. v. ZBA City of Pittsburgh, 638 A.2d 278 (Pa. Cmwlth). He further argues that even under the liberal interpretation allowed for dimensional variances under Hertzberg, the record before the ZBA was insufficient to grant the variances herein. Spahn contends that the ZB A’s conclusion that the requested variance is the minimum required to alleviate the demonstrated hardship, is not based on any facts of record or even an analysis of the facts of record.

The Chadwick architect, Mr. LeCompte, testified that the proposed plan is to change three lots into two and building two, single-family structures. Each house would have a garage. The extra story above the 35 foot limit is only for access to a roof deck and there will be no rooms on that level. This is referred to as a “pilot house” which encloses the stairway leading to the roof deck. The architect further described the lots being too shallow in their existing state to construct single-family dwellings. The existing lots are only 13’4” wide and 60’ deep. Thus the proposal to convert the three lots into two. However, as testified to by the architect, the newly aligned two lots are also not sufficient without a variance to build single family dwellings in compliance with the open space requirements of the Zoning Code. He explained that Chadwick wanted to build single family dwellings that were usable as such by today’s standards.

This court finds neither abuse of discretion nor an error of law in the findings and conclusions of the ZBA. The ZBA findings and conclusions are supported by substantial evidence. The ZBA heard substantial evidence regarding the lots in question and Chadwick’s proposed plans. Although Spahn argues that the ZBA failed to establish that the variances were the minimum necessary to alleviate hardship, this court disagrees. Areview of the entire record establishes facts sufficient to reach the ZBA’s conclusions. Chadwick’s plans clearly are within the philosophy of open space.

ORDER

And now, this September 8, 2010, upon consideration of the appeal of Gary Spahn from the decision of the Philadelphia Zoning Board of Adjustment, the responses thereto, a thorough full review of record, the Zoning Board’s findings and conclusions, briefs submitted and after oral argument, it is hereby ordered and decreed that said appeal is denied and the decision of the Philadelphia Zoning Board of Adjustment is affirmed.

ADDENDUM TO OPINION

Theodore Stones has appealed this court’s order of September 8, 2010, which affirmed the Zoning Board of Adjustment.

The basis for this court’s decision is set forth in the opinion that accompanied the order. A copy of that opinion is appended hereto and forwarded to Pennsylvania Commonwealth court with the record.


author: PANEPINTO, J,

text:
    Wiggins v. Synthes (U.S.A.)

      Gustine J. Pelagatti Sr, for appellant.

      Elizabeth M. McKenna, Mary Ann Mullaney, and Craig G. Lord, for appellee.
    October 13, 2010
   OPINION

PROCEDURAL HISTORY

PANEPINTO, J,

— -Defendant, Synthes (hereinafter referred to as appellant) filed an appeal from this court’s order filed June 23,2010, wherein this court denied appellant’s post-trial motions in their entirety and granted appellees’ motion for delay damages. This court then entered judgment in favor of appellees and against appellant in the amount of $2,109,339.32. This products liability action resulted from a lawsuit filed by appellee alleging that two cannulated screws manufactured by the appellant broke after implantation into appellee’s right hip, causing him to suffer irreparable permanent injuries. This matter proceeded to trial pursuant to the malfunction theory of products liability whereby appellees were claiming that the surgical screws suffered from a manufacturing defect which appellees were unable to specifically identify due to the fact that the surgical screws were discarded during a subsequent surgical procedure on appellee. Therefore, pursuant to the malfunction theory of products liability, appellees did not need to prove the existence of a specific defect but were proceeding on the theory that the product malfunctioned in the absence of abnormal use and reasonable secondary causes.

In November of 2005, appellee, VanRooyen, was a 15 year old child with a four week history of right thigh pain. He was subsequently diagnosed with Slipped Capital Femoral Epiphysis (“SCFE”). “SCFE” is a hip disorder that affects children. This disorder exists when the upper end of the child’s thigh bone slips at the growth plate. Appellee underwent emergency surgery at the Children’s Hospital of Philadelphia on November 24, 2005. During the surgery two surgical screws manufactured by appellant were implanted by the CHOP surgeons into appellee’s right femur. X-rays taken of appellee’s right hip on December 8,2005 and January 10,2006 revealed the two surgically implanted screws to be intact and unbroken. However, after the appellee developed some complaints, X-rays were then taken on July 27, 2006, which revealed that a reslip had occurred producing a displacement and that the two surgically implanted screws had broken.

Unfortunately, during the surgery performed on appellee at Shriner’s Hospital on February 7, 2007, the two broken surgical screws were removed from his right femur and were discarded by personnel of that hospital. Subsequently, on December 10, 2007, appellee had total hip replacement surgery for his right hip performed at CHOP.

In October 2007, appellee commenced suit against appellant asserting a claim of strict liability under the malfunction theory. A jury was selected on November 20, 2009 and the matter was tried before a jury on November 23 through November 30, 2009. On November 30, 2009, the jury returned with a verdict in favor of appellees in the amount of $2,000,000.00.

On December 10, 2009, appellants timely filed their post-trial motions. After a review of briefs submitted by counsel for the parties and oral argument which was heard by this court on April 22, 2010, this court entered an order on June 23, 2010 denying appellants’ post-trial motions and entering judgment in favor of appellees in the amount of $2,109,339.32, which included the jury verdict of $2,000,000.00 plus delay damages in the amount of $109,339.32. On June 23, 2010, appellants timely filed their appeal to the Superior Court of this court’s order of June 23, 2010. On July 29, 2010, this court entered an order pursuant to Pennsylvania Rule of Appellant Procedure 1925(b) requiring appellee to file a concise statement of matters complained of on appeal. On August 19, 2010, appellants timely filed their concise statement of matters complained of on appeal.

ANALYSIS

On Appeal, appellant sets forth nine errors complained of on appeal, the first (7) seven of which center around the burden of proof necessary to proceed under the malfunction theory of manufacturing defect. These initial seven errors complained of on appeal, which are set forth below, will be analyzed together.

1. The trial court erred in failing to grant the following, as detailed in Synthes ’ motion for post-trial relief and its briefing in support of that motion, all of which is incorporated in full by reference

a. Synthes’ motion in limine seeking to exclude certain portions of the May 28, 2009, report of plaintiff’s sole medical expert and to preclude testimony on those portions of that expert report;
b. Synthes’ motion for a non-suit;
c. Synthes’ request that the verdict sheet require the jury to find that the plaintiff had proved that the surgical screws were given only normal or anticipated use and that no reasonable secondary causes were responsible for their breakage.

2. The trial court erred by failing to Grant Synthes ’ motionfor post-trial relief which included Synthes ’request for judgment notwithstanding the verdict or, alternatively, new trial or remittitur.

3. The trial court erred by submitting plaintiff’s claim under the “malfunction ” theory of defect to the jury when plaintiff’s evidence was insufficient as a matter of law to establish the four elements of his claim;

a. That the surgical screws malfunctioned;
b. That the surgical screws were not subjected to abnormal use;
c. That there were no reasonable secondary causes for the alleged malfunction other than that the surgical screws were defective; and
d. That the alleged defect was a substantial factor in causing, or the factual cause of, harm to plaintiff.

4. Because each element ofplaintiff’s claim under the “malfunction ” theory of defect required the determination of issues beyond the knowledge of laypersons, the trial court erred by submitting appellee’s case to the jury without legally sufficient expert testimony to establish each element of appellee’s claim, i.e.:

a. That the surgical screws malfunctioned;
b. That the surgical screws were not subjected to abnormal use;
c. That there were no reasonable secondary causes for the alleged malfunction other than the surgical screws were defective; and
d. That the alleged defect was a substantial factor in causing, or the factual cause of, harm to plaintiff.

5. The trial court erred by submitting plaintiff’s case to the jury when plaintiff’s sole medical expert failed to opine to the requisite degree of medical certainty on the following four elements ofplaintiff’s claim under the “malfunction ” theory of defect:

a. That the surgical screws malfunctioned;
b. That the surgical screws were not subjected to abnormal use;
c. That there were no reasonable secondary causes for the alleged malfunction other than the surgical screws were defective; and
d. That the alleged defect was a substantial factor in causing, or the factual cause of, harm to plaintiff.

6. The trial court erred by submitting a verdict sheet that insufficiently stated the interrogatories to be resolved by the jury.

7. The tidal court misdirected the jury and erred by failing to frame the jury interrogatories so as to direct the jury to determine whether plaintiff had proved two of the key elements of his claim under the “malfunction ” theory of defect: that the surgical screws were given only normal or anticipated use and that no reasonable secondary causes were responsible for their breakage.

Prior to trial appellant filed amotion in limine to preclude certain portions of appellee’s expert report. Appellant’s motion argued that appellee’s expert, Dr. Sheldon Simon’s report, fell short of establishing the necessary elements of a malfunction theory. Specifically, appellant argued that Dr. Simon’s report did not contain any opinion regarding whether or not the breakage of the screws took place during normal or anticipated use, or an opinion regarding the absence of reasonable secondary causes which could have been responsible for the screws breaking.

It was appellant’s contention that in order to proceed on a malfunction theory, appellees would need expert testimony regarding both the absence of abnormal usage and the absence of reasonable secondary causes. It was this court’s decision after a review of Dr. Sheldon Simon’s report that the necessary elements of appellee’s claim under the malfunction theory were indeed contained in Dr. Simon’s report and thus denied appellant’s motion to preclude testimony from Dr. Simon.

At trial, appellee’s case in chief consisted of four witnesses: Appellee child, James Van Rooyen III, Appellee mother, Rhonda Wiggins, Dr. Robert Wolfe, (Economist) and Dr. Sheldon Simon (orthopedic surgeon). Dr. Simon testified that the purpose of the screws used in the instant matter was to hold the correct position of the hip until the bone heals and prevent a reslip. He further testified that the two screws used in appellee’s hip were ineffective in that they had broken and failed to do the job of holding two parts together until it healed. He inferred that the screws were defective because of the screw breakage and the non-union. Dr. Simon specifically testified that if a screw breaks before the nonunion has time to heal, one must ask if the screw were defective. Dr. Simon testified that with the particular surgery performed on the minor appellee, it takes a time frame of up to six months to unite. There was testimony that the broken screws were discovered upon an x-ray taken in July of 2006 which was more than six months following the November 24, 2005 surgery. However, there was testimony both from appellee’s expert as well as from minor appellee and appellee, Rhonda Wiggins, that the appellee had begun to experience pain and had complaints with his right hip within several months following the November 2005 surgery, leading to the possibility that the screws had already broken.

It was the appellant’s contention that appellee’s expert failed to establish that the alleged breakage of the screws was the factual cause of harm to the appellee. However, appellee’s expert testified that when a reslip occurs, the screws pull out of the head of the bolt, but they do not break. In this case, both screws broke. Dr. Simon further testified that the screws broke before healing, thus they were ineffective in doing their job. He related this to a manufacturing weakness. Dr. Simon testified that the screws were not supposed to break and in his experience it was the screw had pulled out of the bolt rather than the bolt holding onto the thread of the screw and breaking. Dr. Simon further testified that in the area where the slip occurred, the thickness of the screw itself was thinner.

During trial and on appeal, appellant contends that Dr. Simon’s use of the word “ineffective” did not amount to the particular type of expert testimony that is needed to proceed under a malfunction theory. However, upon a review of the entirety of Dr. Simon’s testimony, this court was confident that Dr. Simon was clear: “The purpose of the screws is to hold the two parts together until this thing heals and basically what we see in this particular case is those screws broke before that happened and was ineffectively doing its job which I can only relate to the fact that there in the manufacture of these screws that it was weak in that area and that is the only way I could consider it that way.” (Simon dep. Tr. 11-13-09) (56:20).

Appellants’ also contend that appellees’ case failed to establish a prima facie case free of abnormal use and secondary causes. However, a review of testimony in this case established that the minor appellee in the months leading up to the screw breakage did not act in an abnormal fashion. The minor appellee testified that after his operation in November of 2005, he followed his doctor’s instructions and didn’t walk too much and was careful in moving his hip and did not play football or baseball with the boys. Appellee’s parent, Rhonda Wiggins, also testifi ed that she observed her son continuously between the time of the surgery, up to and including the date of the trial, and that during that time he did not engage in any strenuous activities or exercises and did not engage in any type of abnormal use. In addition, Dr. Simon himself testified that the fact that appellee was walking up and down the stairs more frequently in the months following the surgery was irrelevant to any abnormal behavior. Clearly, the evidence established at trial was that there was an absence of abnormal use.

Regarding evidence as to the absence of secondary causes, appellee’s expert, Dr. Simon, clearly stated that in his testimony as a whole that these screws are designed to last until the bone mends. It was his expert testimony that they broke within the time period normally expected for the bone to heal. There was testimony during trial that the minor appellee began to experience pain in his right hip region several months after the November 2005 surgery. This clearly was within the normal six month period of time in which appellee’s expert testified that the bone would normally heal. Although the x-ray was not taken until July of2006, which was seven months following the ceremony, the testimony and evidence produced indicated that the minor appellee was experiencing right hip pain and symptoms well within the six month period of time. Clearly there was evidence submitted to the jury to find that there was an absence of either abnormal use by the minor appellee or secondary causes with the breakage of the screws.

Appellants also contend that this court erred by failing to place two additional questions on the jury verdict slip under the malfunction theory. Appellants contend that this court erred in not requiring the jury to find that the screws were given only normal or anticipated use and that no reasonable secondary causes were responsible for the breakage. However, it was this court’s determination that question #1 on the jury verdict slip which asked the jury whether or not the screws manufactured by appellant were defective when they left the possession of the manufacturer itself was consistent with the law as read to the jury during the court’s charge. During the court’s charge, this court instructed the jury that in a products liability case, that three facts need to be proven, including that the product was given only its normal or anticipated use and that there did not exist any reasonable secondary causes responsible for the harm. Clearly the evidence established at trial was that there was an absence of any abnormal use on the part of the minor appellee, and that there was an absence of any reasonable secondary causes responsible for the harm.

Interestingly, appellant’s own expert reasoned that these screws must have broken subsequent to the initial six months following the surgery due to the fact that the x-rays taken in July of 2006 first revealed the breakage. It was appellant’s expert’s testimony that the minor child would have been in such serious pain that the screws would have had to have broken just prior to the July 2006 x-ray. However, appellant’s expert was not able to explain how the child was able to withstand such severe pain from July of 2006 when the screws were discovered broken until February of 2007, which was when he finally had his total hip replacement surgery done. Clearly, the jury was able to resolve the conflict between appellees’ and appellant’s expert and resolved this conflict in favor of appellees. Therefore, it was this court’s opinion that the jury carefully considered all of the evidence in this case and made a determination that the screws had malfunctioned in that they had broken before their normal life expectancy and that there did not exist any abnormal use or reasonable secondary causes responsible for the screw breakage.

Appellant’s matters No. 8 and No. 9 complained of on appeal are as follows and will be discussed together.

8. The trial court erred by failing to grant new trial or, alternatively, remittitur on the grounds of verdict excessiveness when the jury awarded $2 million to plaintiff although plaintiff introduced no expert evidence at trial to support any inference that plaintiff’s physical limitations or physical condition or pain and suffering after he had the total hip replacement in December 2007 was any different (i) than it would have been had he not suffered the reslip, or (ii) than it would have been had he not suffered the reslip and had the hip replacement that became inevitable as soon as his acute SCFE was diagnosed.

9. The trial court erred by failing to grant new trial or, alternatively, remittitur on the grounds of verdict excessiveness when the $2 million the jury awarded to plaintiff was an award for pain and suffering that was beyond all reasonable bounds.

Appellant contends that the trial court erred by failing to grant a new trial,or in the alternative, remittitur on the grounds of verdict excessiveness when the court awarded $2 million to appellee. However, a review of the testimony at trial did not establish that the jury’s verdict was excessive. The jury heard testimony from both the appellee, his mother and appellee’s orthopedic expert that appellee still suffers from limping; has ongoing hip pain; has limited ability to walk for approximately 15 minutes to a half-hour; and, has inability to stand for long periods without pain. He is no longer able to play football, baseball, basketball and experiences depression. In addition, minor appellee himself testified that he limps because his right leg is now shorter than his left and that he is sad because the broken hip took away his teenage years. He testified that he misses playing baseball, basketball, football. He testified that he takes Tylenol for pain and that he missed one and one-half years of school. He also testified that he gets depressed and feels ashamed when his peers see him limp. He testified that he has trouble sleeping at nights. He testified that between January 10, 2006 and July 27, 2006 he was in pain. Even more importantly, appellee’s expert testified that appellee’s limp and pain will be a recurring problem for the remainder of his life and that, as Dr. Simon testified, the minor appellee’s future occupation will be confined to sedentary work as a safety measure. In addition, the evidence presented to the jury established over $500,000 in economic damages. It was this court’s determination that the jury verdict of $2 million was not excessive in light of the economic and non-economic damages proven at trial.

CONCLUSION

For all of the above reasons, the trial court’s order of June 23, 2010 denying applicant’s motion for post-trial relief should be affirmed.