author: RIZZO, J.,

text:
    Godfrey v. Pennsylvania Financial Responsibility Assigned Claims Plan

      Gerald J. Pomerantz, for appellees/plaintiffs.

      Thomas P. Kelly, for appellant/defendant.
    August 4, 2005
   RIZZO, J.,

OPINION SUR PA RULE OF APPELLATE PROCEDURE 1925(a)

Pennsylvania Financial Responsibility Assigned Claims Plan (appellant/the plan), appeals from an order of this court issued on F ebruaiy 1,2005 and docketed on February 2, 2005, which denied appellee Sonia P. Godfrey’s petition to strike/open an order of non pros as procedurally improper. Due to unusual circumstances resulting in severe prejudice to the appellees, this court took the following steps sua sponte: (1) declaring the arbitration award of February 3, 2004 a nullity; (2) vacating its previous order of January 23,2004 which dismissed appellees’ complaint with prejudice; and (3) reinstating the complaint with a re-listing of the matter for arbitration.

FACTS AND PROCEDURAL HISTORY

Appellees commenced an action against appellant and various defendants on June 11, 2003 through their attorney, Robert S. Fisher, Esquire, based on damages claimed as a result of a motor vehicle accident that occurred on June 10, 2001. Arbitration of the matter was scheduled for February 3, 2004. Through the pretrial work-up of the case, Attorney Fisher failed to timely produce discovery in response to appellant’s request, resulting in appellant’s motion to compel discovery being granted on August 15, 2003. Due to Attorney Fisher’s continued noncompliance, on October 10, 2003, the Honorable Matthew D. Carrafiello imposed monetary sanctions and directed appellees to comply within 20 days or be subject to further sanction by the court.

Attorney Fisher failed to follow both of this court’s orders to compel discovery. As such, on January 23,2004, the Honorable Annette M. Rizzo ordered appellees’ complaint dismissed with prejudice for failure to comply, and also imposed further sanctions. Due to administrative delay, however, Judge Rizzo’s order was not docketed until February 19, 2004. Hence, the scheduled arbitration hearing went forward on February 3,2004. Neither Attorney Fisher nor appellees appeared for arbitration. Due to their non-appearance, judgment was entered in favor of appellant and all other defendants.

The Court Acted in Response to Attorney Fisher’s Mishandling of Many of His Cases, Including Appellees ’ Case

During his representation of the appellees, Attorney Fisher purportedly disappeared and remained incommunicado from the end of December 2003 through January of2004, without regard for his clientele. Many of Attorney Fisher’s cases were subject to dismissal due to his lack of due diligence. The decline in his professional performance and his demeanor was recognized by his colleagues, as was the resulting adverse impact to his various clients. Gerald Jay Pomerantz, Esq., Attorney Fisher’s colleague, attempted to tend to matters in Attorney Fisher’s cases when he was unavailable or unresponsive.

Ultimately, Attorney Fisher officially withdrew from practice on June 1, 2004. At that time, Mr. Pomerantz sought direction from the court regarding the effect of Attorney Fisher’s personal issues on his clientele and any of their pending cases. Honorable Frederica A. Massiah-Jackson, president judge of the Court of Common Pleas for the First Judicial District, arranged a meeting in which all 33 of Attorney Fisher’s affected cases were discussed and it was suggested that emergency petitions be filed.

Although appellees did not formally retain Mr. Pomerantz as counsel at that time, Mr. Pomerantz acted as an intermediary and filed the underlying petition to strike/ open an order for non pros on the appellees’ behalf on July 20, 2004 (entered on July 22, 2004). In a subsequent step to protect the rights of Attorney Fisher’s clients, by order of President Judge Massiah-Jackson issued on August 2, 2004 and docketed August 13, 2004, many of Attorney Fisher’s civil and criminal cases were deferred for 60 days, in order for the affected parties to obtain new counsel. President Judge Massiah-Jackson’s order also referenced the order of the Supreme Court issued July 29, 2004, which suspended Attorney Fisher from practice in the Commonwealth for the period of one year.

After initial assignment of appellees’ petition, pursuant to Judge Massiah-Jackson’s order, the petition was deferred for 60 days to allow appellees to secure new counsel. Subsequently, on October 6, 2004, a full hearing before Judge Carrafiello was held. The appellees testified at the hearing that Attorney Fisher never informed them that an arbitration hearing was scheduled for February 3, 2004. Instead, appellees received a letter from Attorney Fisher instructing them to appear in his office at 3:30 that same day. Attorney Fisher was not at his office when appellees arrived, but were repeatedly assured that he was en route. After waiting for four hours, appellees were informed by someone from Attorney Fisher’s office that the meeting was cancelled as Attorney Fisher was not coming. When asked whether she was aware of the arbitration, appellee Sonia P. Godfrey specifically stated, “No we didn’t know nothing about no arbitration. We didn’t even get a letter.”

Appellees also secured Mr. Pomerantz as counsel in the instant matter at said hearing and he formally entered his appearance on October 12, 2004. The petition was held under advisement by Judge Carrafiello and then reassigned to this court for consideration on February 2, 2005.

Although appellees’ petition was postured as a petition to open non pros, no order of dismissal for non pros was ever entered, and therefore appellees’ petition was denied as procedurally improper, by court order of February 1, 2005. Further, as the merits of appellees’ case had not yet been determined, this court sought to “turn back the clock” to afford appellees due process and provide an opportunity for appellees to adequately pursue their claim with the assistance of Attorney Pomerantz. As such, this court took the following steps sua sponte: first, to declare the arbitration award of February 3,2004, a nullity as the arbitration hearing went forward despite this court’s final order on January 23, 2004, which dismissed appellees’ complaint with prejudice as to all defendants. Next, this court vacated its order of January 23, 2004, dismissing appellees’ complaint with prejudice and reinstated the original complaint so that the case could be restored to the arbitration list. This timely appeal followed.

SUMMARY OF ISSUES RAISED ON APPEAL

In their statement of matters complained of on appeal, appellant argues that this court did not have subject matter jurisdiction to affect its order of February 1,2005 for the following reasons:

(1) No timely appeal was filed within 30 days of the February 3, 2004 arbitration award;
(2) The arbitration award was a final order beyond the reach of this court that could not be disturbed;
(3) Appellees neither requested nor had grounds to file an appeal nunc pro tunc;
(4) This court did not act during 30 days after entry of the dismissal order on February 19,2004, and could not alter its January 23,2004 order absent extraordinary circumstances where no extraordinary circumstances were alleged.

LEGAL DISCUSSION

I. This Court Properly Took Steps Sua Sponte Under Pa.R.C.P. 126 To Nullify the Arbitration Award, Vacate Its Previous Order and Reinstate the Underlying Complaint

Under Pa.R.C.P. 126: “The [RJules [of Civil Procedure] shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Further, the Supreme Court has recognized that Rule 126 should not be applied so rigidly as to result in an unjust outcome, particularly when a procedural defect could be overlooked to preserve the rights of the parties. Kurtas v. Kurtas, 521 Pa. 105, 109, 555 A.2d 804, 806 (1989). More specifically, “[A] lower court will not be reversed either for waiving or refusing to waive noncompliance with procedural rules in the absence of a showing of an abuse of discretion which has caused manifest and palpable injury to the complaining party.” (emphasis added) Gagliardi v. Lynn, 446 Pa. 144, 151, 285 A.2d 109, 112 (1971). Finally, the trial court also has the inherent power “to amend its records, to correct mistakes of the clerk or other officer of the court, inadvertencies of counsel, or supply defects or omissions in the record, even after the lapse of the term.” Manack v. Sandlin, 812 A.2d 676, 680 (Pa. Super. 2002).

Notwithstanding this court’s need to abide by the letter of the rules for purposes of clarity and stricture, the essence of Pa.R.C.P. 126 and the spirit of congruous case law indicate that the court’s application must be tempered by particular facts, to be determined on a case-by-case basis. This court’s order was proper as it was issued, in part, to address procedural errors that occurred both administratively, and as a result of the inaction of Attorney Fisher, an officer of the court. The first procedural hurdle this court addressed was the erroneous procedural posture of the underlying petition as a petition to open/strike entry of non pros where no order for non pros was ever entered. Therefore, this court dismissed the petition as postured, but properly exercised its power in reviewing the substance of the petition in full, in order to address the disturbing facts outlined therein and provide an equitable remedy for the prejudice suffered by appellees.

Next, the court looked to the administrative error that occurred when the case went forward to arbitration despite this court’s order dismissing the complaint that predated the assigned arbitration date. Thus, this court properly declared the subsequent arbitration award a nullity. Finally, as this court’s initial dismissal of the case was on solely procedural grounds due to Attorney Fisher’s noncompliance with pretrial orders to compel discovery, this court vacated its previous order upon discoveiy of the underlying facts regarding Attorney Fisher’s behavior.

This court’s power to affect an equitable remedy was further justified as neither this court, nor the arbitration panel, ever premised any rulings on the merits of the facts and legal claims in the underlying case. Further, appellant has failed to substantiate any allegations of manifest or palpable injuries sustained as a result of the appellees’ complaint being reinstated. Moreover, appellant had full notice of the nature and content of appellees’ claim, as well as subsequent knowledge of Attorney Fisher’s actions. In light of the facts revealed to this court and all parties involved, appellant cannot effectively claim that this court’s actions to reactivate the case substantially impact appellant’s substantive rights.

II. The Unique and Compelling Circumstances Resulting From Attorney Fisher’s Mishandling of the Appellees’ Case Warranted the Steps Taken by This Court To Return Appellees’ Case to Its Pretrial “Status Quo”

This court’s subject matter jurisdiction was proper under the law to vacate its previous order of January 23, 2004, which dismissed appellees’ complaint with prejudice, in order to restore the original complaint and re-list the matter for arbitration. Extraordinary circumstances existed to warrant the action taken by this court, despite the passage of more than 30 days from the entry of the January 23, 2004 order.

Under normal circumstances, 42 Pa.C.S. §5505 limits a court’s power to modify or rescind any order to 30 days after entry. “The lower court’s authority under 42 Pa.C.S. §5505 to modify or rescind an order is almost entirely discretionary; this power may be exercised sua sponte, or may be invoked by a request for reconsideration filed by the parties----” Hayward v. Hayward, 808 A.2d 232, 235 (Pa. Super. 2002). “After the expiration of 30 days, the trial court loses its broad discretion to modify, and the order can be opened or vacated only upon a showing of extrinsic fraud, lack of jurisdiction over the subject matter, a fatal defect apparent on the face of the record or some other evidence of extraordinary cause justifying intervention by the court.” Id. at 235. (emphasis in original)

“After said appeal time has expired, the doctrine of res judicata becomes applicable and the order may not be vacated.” First Union Mortgage Corp. v. Frempong, 744 A.2d 327, 334 (Pa. Super. 1999). This general rule, however, is by no means absolute and may be disregarded and an unappealed judgment opened if fraud or other equitable considerations require the granting of such relief. “[I]t is also well established that where there is a showing of fraud or another circumstance ‘so grave or compelling as to constitute “extraordinary cause” justifying intervention by the court,’... then a court may open or vacate its order after the 30-day period has expired.” First Union at 334, citing Justice v. Justice, 417 Pa. Super. 581, 586, 612 A.2d 1354, 1357 (1992). Extraordinary circumstances have been found to exist in the context of mistakes made by the court or its officers. Great American Credit Corp. v. Thomas Mini-Markets Inc., 230 Pa. Super. 210, 213, 326 A.2d 517, 519 (1974). “[A]n attorney ... is in a sense an officer of the court.” In re In the Interest of C.K., Appeal of C.K. and L.K. Natural Parents, 369 Pa. Super. 445, 535 A.2d 634 (1987).

In the instant case, appellees’ complaint was dismissed on January 23, 2004 due to the inattention and misconduct of Attorney Fisher, an officer of the court. Attorney Fisher recognized that his medical condition rendered him unable to adequately represent his clients or practice law; thus, he voluntarily withdrew from practice. As extensively detailed supra, the actions of Attorney Fisher constituted extraordinary circumstances which justified this court’s actions in providing an equitable remedy.

Further, where an attorney’s misconduct results in prejudice to a client the Supreme Court has clearly stated “it would be harsh, indeed, to hold that appellant’s possible cause of action be lost forever because of the conduct of an attorney this court has deemed unfit for the practice of law in this Commonwealth.” Estate of Gasbarini v. Medical Center of Beaver Cty. Inc., 487 Pa. 266, 271, 409 A.2d 343, 345 (1979). Although Attorney Fisher had not yet been suspended at the time that appellees’ complaint was dismissed, he was subsequently suspended by the order of the Supreme Court on July 29, 2004, as evidenced by President Judge Massiah Jackson’s order. Thus, Attorney Fisher’s conduct, as detailed supra, is clearly parallel to the circumstances in the Estate of Gasbirini, and appellees’ cause of action was properly restored by this court.

III. This Court Did Not Receive Appellees’ Petition As Appeal Nunc Pro Tunc

Under the equitable powers of the court, this court appropriately denied appellees’ petition as procedurally improper, where a non pros was never entered against appellees. This court’s subsequent sua sponte actions represent the court’s intent to restore appellees’ right to a fair hearing on the merits of their case. This court acted in a judicious manner by carefully exercising its review powers under the law in order to affect justice for the prejudiced parties, where such was available by no other means.

CONCLUSION

After careful review of the record, this court finds no error which would warrant its judgment reversed; therefore, this court’s order of February 1, 2005 should be affirmed.

      . See attached exhibit “A”, affidavit of Gerald Jay Pomerantz, Esq. [not published herein].

      . See attached exhibit “B”, the order of President Judge MassiahJackson of August 2, 2004 [not published herein].

      . See attached exhibit “C”, court transcript from hearing before Judge Matthew D. Carrafiello on October 6,2004 (pp. 1-2) [not published herein].

      . See attached exhibit “D”, this court’s order of February 1, 2005 [not published herein].

      . See attached exhibit “E”, appellant’s full statement of matters complained of on appeal [not published herein].

      . Appellant errs in the statement raised in paragraph 4 of its full statement of matters complained of on appeal, see attached exhibit “E”, that this court’s January 23,2005 order, see attached exhibit “F”, dismissed the complaint as to appellant only, and thus the arbitration had to go forward. On the contrary, the order clearly “dismissed with prejudice for plaintiffs’ failure to comply with this court’s .. . orders ..thus dismissing the complaint in its entirety [not published herein].

      . See attached exhibit “B” [not published herein].


source: Caselaw Access Project

author: RUBENSTEIN, J,

license: Public Domain

text:
    Dentrust Dental International v. Rosenberg

      Daniel D. McCaffery, for appellants.

      Sidney L. Gold, for appellee.

      July 26, 2005
   RUBENSTEIN, J,

On October 8, 2003, plaintiff Dentrust Dental International filed a complaint in equity in the Court of Common Pleas of Bucks County, Pennsylvania, alleging inter alia that defendants David Rosenberg DDS and Bob Montgomery DDS breached the terms of a noncompetition clause in Rosenberg’s employment contract with Dentrust by providing portable dental services for existing clients of Dentrust. In their complaint, Dentrust also seeks compensatory damages, punitive damages, attorney’s fees and costs alleging a breach of contract by Rosenberg.

The Annsville/Taberg Residential Centers, located in New York, are operated by the Bureau of Health Services, Office of Children and Family Services, State of New York. Dentrust, via contract, provides onsite portable dental services to Annsville/Taberg and to other corporations and governmental entities nationwide.

PROCEDURAL AND FACTUAL BACKGROUND

On May 15, 1999, Dentrust and appellant Rosenberg entered into an employment contract specifying the terms and conditions of Rosenberg’s employment with Den-trust. Under that employment contract, defendant Rosenberg held the position of “Dentist” and agreed to abide by various provisions contained in the contract, including Provision 11, entitled “Non-disclosure covenant

“The employee recognizes and acknowledges that he will have access to certain confidential information of the company and that such information constitutes valuable, special and unique property of the company. The employee agrees that he will not, for any reason or purpose whatsoever, during or after the term of his employment, disclose any of such confidential information to any party without express authorization of the company.” See Provision 11(a) “Non-disclosure covenant. ”

Appellant also agreed to abide by Provision 12, entitled “Noncompetition covenant”:

“The employee agrees that during the term of this agreement and after the termination of employee’s employment under this agreement for any reason for a period of two years thereafter, the employee shall not, unless acting pursuant hereto or with the prior written consent of the Board of Directors of the company, directly or indirectly as an individual, partner, corporation, officer of corporation or in any capacity whatsoever: (a) solicit business from or contract with or perform services for, any persons, patients, company, correctional institution or other private or governmental entity which at any time during the employee’s employment by the company (i) is or was a client or customer or patient of company, or Dentrust Dental international Inc., or Dentrust Dental International Inc., or Dentrust P.C. or Dentrust Dental P.A., or any of their affiliates, or (ii) has or had a contractual arrangement with company or Dentrust Dental International Inc. or Dentrust Dental P.A. or any of their affiliates for the provision of dental services or dental management services . . . .” See Provision 12, “Noncompetition covenant. ” (emphasis added)

In reliance upon this employment contract, Dentrust provided appellant Rosenberg with dental clients to service, including the Bureau of Health Services, Office of Child and Family Services, State of New York. In addition, in reliance upon this contract, Dentrust provided appellant Rosenberg with onsite portable dental service training, and access to confidential information of trade secrets, price lists, customer lists, marketing strategies and operational procedures.

According to the complaint in equity, “on November 10, 2002, defendant Rosenberg informed Dentrust, that he planned on (sic) resigning his position of employment with Dentrust. Rosenberg communicated . . . that his resignation would take effect on January 31, 2003.” See complaint in equity, paragraph 21.

The complaint further alleges that on December 12, 2002, approximately one and one-half months prior to the effective date of Rosenberg’s resignation, Dr. Rosenberg and Dr. Montgomery visited the Annsville/ Taberg Residential Centers in New York. See complaint in equity, paragraph 22.

Rosenberg and Montgomery represented to Annsville/ Taberg that they were acting on their own behalf and were seeking to enter into an agreement to provide onsite portable dental services for the residents of that facility. Appellants further represented that they were able to provide dental services at the Annsville/Taberg Residential Centers on a weekly basis. Rosenberg represented that he was familiar with New York’s juvenile facilities because he provided dental services to them during his employment with Dentrust. See complaint in equity, paragraphs 23-26.

The complaint in equity also states that, “on January 7, 2003, prior to Rosenberg’s resignation, appellants Rosenberg and Montgomery began to service the Annsville/Taberg Residential Centers.” See complaint in equity, paragraph 27.

In addition, the complaint in equity alleges that defendants Rosenberg and Montgomery surreptitiously conspired to misappropriate Dentrust’s confidential information in furtherance of their efforts to violate the noncompetition provisions of Rosenberg’s contract of employment with Dentrust. See complaint in equity, paragraphs 28-29. The complaint in equity also alleges that “Rosenberg and Montgomery entered into an illegal scheme and conspiracy, the objective of which was to interfere with the contractual relationships between Dentrust and its current and prospective clients.” The contract of employment between Rosenberg and Den-trust also provides:

“Employer acknowledges that a breach by employee of the terms of the covenant will be difficult or incapable of measurement. However, employer realizes that employee may wish to enter into the business of the company or any of its affiliates and accordingly, provides an option of paying for the liquidated damages that would occur if employee enters into the business of company or any of its affiliates in violation of the noncompetion covenant. Employee agrees that in the event of breach of the noncompetion covenant he shall pay to employer, as liquated damages, and not as a penally, the sum of $250,000.” See Provision 13(b) of the contract of employment.

On April 28, 2003, Dentrust sought a preliminary injunction against Dr. Montgomery and Dr. Rosenberg asserting a violation of the employment contract of May 15,1999, entered into between Dentrust and Dr. Rosenberg. After hearing the testimony presented and reviewing the exhibits and documents introduced by Dentrust, this court concluded that the evidence was uncontradicted that Rosenberg willfully and intentionally violated the “noncompetition covenant” and utilized Dr. Montgomery to assist him in this endeavor. It was apparent to this court that Dr. Rosenberg enlisted Dr. Montgomery to circumvent the clear mandate of the “noncompetition covenant” which prohibited Rosenberg from servicing Dentrust’s customers for a period of two years after his termination or resignation.

This court granted the preliminary injunction and stated as follows:

“I have considered the testimony presented before this court at this hearing and I have reviewed the exhibits introduced into the record as well as the pleadings. I have also considered the arguments of counsel. I’ll place of record the following factual basis for this court’s eventual order. It is clear and uncontradicted that there was a valid employment contract... between David A. Rosenberg DDS and Dentrust. As a part of that agreement, specifically, there is a noncompetition covenant, which is equally clear that the signatory, that being Dr. Rosenberg, may not perform services for any entity that was a client or customer of Dentrust.
“ ... (A)s a part and parcel of that agreement, there is an acknowledgement under paragraph 13 by the employee, that being Dr. Rosenberg, that the company, that is Dentrust, shall be entitled to temporary and permanent injunctive relief without the necessity of proving actual damages if there is evidence that the terms of the contract have been violated.
“It is clear to this court that Dr. Rosenberg was at all times subject to those terms and therefore aware of his rights, duties and obligations under that agreement. We find also as a fact that in the year 2002 Dr. Rosenberg, as signatory to the employment contract, was informed by Dentrust that as apart of his duties he would be assigned to the facility at Annsville where he would perform services pursuant to the terms of the contract. That evidence is uncontradicted.
“It’s also clear that after 2002, contrary to the agreement not to compete, Dr. Rosenberg, as evidenced by the packet constituting P-5, agreed to provide services at the Annsville Residential Center. This court believes that is a violation, at least presumptively, of his agreement with Dentrust. Now, it’s been argued that Dr. Montgomery, who is not a signatory to the employment contract, is therefore beyond the arm of this court in issuing a preliminary injunction. However, this court cannot be blind to what appears from P-5, and that is countersigned by Dr. Rosenberg, is apparently the signature, as well, of Dr. Montgomeiy. To fail to grant relief under these circumstances would permit Dr. Rosenberg, through the intervention of a third party, to assist him in violating the terms of the agreement. We believe that was not contemplated by the terms of the agreement. We look then to the factors with regard to our decision. The employment contract is in all respects a valid contract for our purposes. Relief, we believe, is therefore necessary to prevent immediate and irreparable harm which cannot be compensable to Dentrust by monetary damages, nor could it be determinable from the state of this record. We believe, as well, that greater injury will result to Dentrust from refusing the injunction than in granting.
“Moreover, we believe, given the intent of the agreement not to compete ... that restoring the parties to the status quo that existed prior to January of 2003 mandates that there be a remedy for what we find to be wrongful conduct. We believe upon the state of this record, and only upon the state of this record .. . that the wrong by Dr. Rosenberg is manifest, that the injunction is reasonably suited to abate that wrong, and that the activity sought to be enjoined is therefore actionable by Dentrust.
“We will state further that, while we have not ruled upon the merits, it appears that the right of plaintiff to relief is clear. We also note that granting a preliminary injunction will not adversely affect the public interest. Therefore, this court enters the following order:
“The request for (a) preliminary injunction is granted. All of the particulars specified in what has been referred to as the agreed order for preliminary injunction of January 23, 2003, are entered as an order of this court and shall remain in effect as an order of this court until modified. Consistent with Pennsylvania Rule of Civil Procedure 1531(b), we will order and direct that plaintiff, Dentrust, file an injunction bond with the prothonotary of the County of Bucks in the amount of $10,000.” See N.T. April 28, 2003, pp. 78-83.

On Januaiy 10, 2005, this court held a hearing upon dentist’s petition for contempt. The evidence was abundant that Dr. Rosenberg and Dr. Montgomery, in violation of this court’s preliminary injunction of April 28, 2003, continued to provide portable dental service to Annsville/Taberg in blatant disregard of the specific prohibition against soliciting and servicing prior clients of Dentrust. This court found both defendants in contempt of the preliminary injunction and entered an order for sanctions stating:

“In paragraph 13(b) there is a specific reference that, in the event of a violation, there should be imposed as liquidated damages as against Dr. Rosenberg the sum of $250,000, and, consistent with that language, we impose as against Dr. Rosenberg the sum of $250,000 as a sanction, and we enter it as an order of this court in favor of Dentrust.
“Now, we have no assurance, despite our order, that there will be compliance.
“This court had to issue a bench warrant (for the defendants) ... But there’s still no compliance, so we will take steps to insure compliance. This court, therefore, in addition to what it has stated, finds both defendants in contempt of its injunction. Both defendants, David Rosenberg and Bob Montgomery, are remanded and committed to the Bucks County Correctional Facility for a period of six months.
“They will be purged of contempt if, within that time period, they do the following: One, provide a full accounting of all monies received from any residential facilities in the State of New York or any other state encompassed by the employment contract. And, two, provide to this court documentary proof that they have severed all relationships with any facility which was previously serviced by Dentrust. Until that purge condition is met, the defendants are remanded to the custody of the sheriff.” See January 11, 2005 order.

. On January 11, 2005, defendants filed an appeal to the Superior Court and an “Application for relief under Pa.R.A.P. 123.” On the same date that the appeal and application was filed, the Superior Court granted a temporary stay of this court’s order.

On January 13, 2005, the Superior Court granted the stay, conditioned upon appellants providing “documentary proof’ indicating compliance with the terms of the preliminary injunction and requiring appellants to post a bond in the amount of $250,000.

Since the entry of the Superior Court’s orders, various additional filings have occurred. For example, on March 17.2005, this court denied defendants’ motion for summary judgment. As noted from the numerous docket entries, additional filings between March 2005 and June 13.2005, have occurred, including plaintiff’s motion for a protective order and defendant’s motion to compel answers to interrogatories. Therefore, the litigation between the parties is still pending and this court has not yet reached the merits of Dentrust’s underlying claims for compensatory damages, punitive damages, attorney’s fees and costs.

In response to an inquiry by the Superior Court, this court communicated its belief that no opinion was required because the Superior Court granted a stay of this court’s January 10, 2005 sanctions for contempt. This court also believed that, because the litigation was ongoing, no opinion was required. On June 29,2005, President Judge Joseph A. Del Sole responded, and directed this court to file its opinion.

Defendants appeal to the Superior Court of Pennsylvania from this court’s January 10,2005 order. This opinion is filed pursuant to Pa.R.A.P. 1925(b).

DISCUSSION

The power to punish for contempt, including the power to inflict summary punishment, is a right inherent in the courts and is incidental to the grant of judicial power under the constitution. See Hopkinson v. Hopkinson, 323 Pa. Super. 404, 470 A.2d 981 (1984). The power to impose sanctions for contempt of court is part of the judicial authority granted to courts of general jurisdiction. See Woodruff v. Township of Lower Southampton, 68 Pa. Commw. 171, 448 A.2d 692 (1982).

In a civil contempt case, the party alleging contempt bears the burden of proving contempt by a preponderance of the evidence. Sinaiko v. Sinaiko, 445 Pa. Super. 56, 64, 664 A.2d 1005, 1009 (1995). A party commits civil contempt when they (1) have notice of the court order he or she is alleged to have disobeyed (2) acted voluntarily when disobeying the order, and (3) disobeyed the order with wrongful intent. Marian Shop Inc. v. Baird, 448 Pa. Super. 52, 56, 670 A.2d 671, 674 (1996).

Throughout this Commonwealth, Pennsylvania courts have preliminarily enjoined and equitably enforced restrictive covenants where the covenants are incident to an employment relationship between parties and where the restrictions imposed by the covenant are reasonably necessary for the protection of the employer. In the present case, there is no allegation that the restrictive covenant is not enforceable. See John G. Bryant Co. v. Sling Testing and Repair Inc., 471 Pa. 1, 369 A.2d 1164 (1977); see also, Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976); Bettinger v. Carl Berke Associates, 455 Pa. 100, 314, A.2d 296 (1974); Jacobson & Co. v. International Environmental Corp., 427 Pa. 439, 235 A.2d 612 (1967). In John G. Bryant Co. v. Sling Testing and Repair Inc., the court stated:

“It is not the initial breach of a covenant which necessarily establishes the existence of irreparable harm, but rather the threat of the unbridled continuation of the violation and the resultant incalculable damage to the former employer’s business that constitutes the justification for equitable intervention.” 471 Pa. 1, 7, 369 A.2d 1164, 1167 (1977).

The Pennsylvania Supreme Court has upheld equitable relief from employees who attempt to trade on the business relationships established through their employment in violation of a restrictive covenant. See Plunket Chemical Co. v. Reeve, 373 Pa. 513,95 A.2d925 (1953); Boldt Machinery & Tools Inc. v. Wallace, 469 Pa. 504, 366 A.2d 902 (1976). In the present case, the good will established by Dentrust is precisely the kind of interest which should be protected because it is subj ect to irreparable harm by the willful and intentional illegal acts of appellants.

Court orders have to be obeyed, and appellants have both flagrantly decided not to follow that course. The restriction in the employment contract was clear, unmistakable and determinable. Dr. Rosenberg was not permitted to provide dental services to prior customers or clients of Dentrust for a period of two years, and he was also not permitted to circumvent that restriction by utilizing Dr. Montgomery as a vehicle to accomplish that illegality. Appellant entered into that contract of employment at arm’s length. Appellant knowingly, and with a full understanding of the consequences, signed the contract of employment. Appellant was also well compensated for his services on behalf of Dentrust.

This court finds that, prior to Rosenberg’s resignation from his employment with Dentrust, appellants Rosenberg and Montgomery entered into an illegal scheme and conspiracy, the objective of which was to interfere with the contractual relationships between Dentrust’s present and prospective clients. Even after this court specifically enjoined that conduct, both defendants willfully disregarded that order.

We believe the foregoing explains this court’s action in finding both appellants in contempt of court.


author: MINORA, J,

text:
    Cadora v. Novak

      George Oschal III, for plaintiff Cardora.

      Kevin M. Higgins, for defendant Novak.

      John McGrath, Robert Smith, and Susan Luckenbill, for defendant Peranich.

      Daniel W. Munley, for plaintiff Novak.
    July 19, 2005
   MINORA, J,

Before the court are the plaintiff’s post-trial motions filed in opposition to a jury verdict decided on September 17,2003. The motions for post-trial relief have been filed pursuant to Pa.R.C.R 227.1. All parties have filed their respective responses rendering this matter ripe for disposition.

STATEMENT OF THE CASE

Three separate docketed matters were consolidated for purposes of trial commenced September 15,2003, in the Lackawanna County Court of Common Pleas. The factual issues prompting trial centered on the allocation of liability of the parties involved in a three-vehicle accident which occurred on August 20, 1999. Specifically, on the date of the collision, defendant, Brian Novak, was operating a 1987 Toyota Tercel, owned by his parents, while defendant, Stephanie Peranich, was operating her 1997 Saturn SC-2 and Darren Cadora, the plaintiff, was driving his 1996 Dodge Ram pickup truck. It is uncontested that on the day of the accident, in Scranton, Pennsylvania, there was moderate precipitation. (N.T. 9/16/ 03 p. 36.) According to testimony presented at trial, at approximately 4:45 p.m., both defendants were driving southbound upon the North Scranton Expressway roughly . 1 mile north of the Keyser Avenue exit ramp. Ms. Peranich attempted to maneuver a lane change from the right lane to the passing lane when her car collided with Mr. Novak’s vehicle. Novak, already in the left lane, traveling at a speed between 45 and 55 mph, collided with the concrete bander, splashing Mr. Cadora’s windshield with water. Cadora, the plaintiff herein, then collided into the rear of Novak’s car. (N.T. 9/16/03, p. 41 .)

After a three-day trial, the jury returned verdicts in all three cases.

In the matter of Novak v. Peranich, the following verdict was decided ...

“Question 1. Do you find that the defendant, Stephanie Lea Peranich was negligent? Yes X.
“Question 2. Was the negligence of the defendant you found to be negligent at question no. 1 a factual cause in bringing about the accident? Yes X.
“Question 3. Was the plaintiff Brian Novak negligent? Yes X
“Question 4. Was the negligence of the plaintiff Brian Novak found at question no. 3 a factual cause in bringing about the accident? Yes X.
“Question 5....
“(a) Percentage of causal negligence attributable to defendant, Stephanie Lea Peranich... 77%.
“(b) Percentage of causal negligence attributable to plaintiff Brian Novak... 23%. ”

In the matter of Peranich v. Brian Novak, Anthony Novak Jr. and Mary Ann Novak, the jury returned the following verdict...

“Question 1. Do you find that the defendant, Brian Novak, was negligent? Yes X .
“Question 2. Was the negligence of the defendant you found to be negligent at question no. 1 a factual cause in bringing about the accident? Yes X....
“Question 5. Was the plaintiff Stephanie Lea Peranich negligent? Yes X.
“Question 6. Was the negligence of the plaintiff Stephanie Lea Peranich found at question no. 5 a factual cause in bringing about the accident? Yes X.
“Question 7 ...
“(a) Percentage of causal negligence attributable to defendant, Brian Novak... 23%.
“(b) Percentage of causal negligence attributable to plaintiff Stephanie Lea Peranich ... 77%.”

In the present matter, Cadora v. Novak and Peranich, the jury rendered a verdict as follows:

“Question 1. Do you find that any of the defendants were negligent?
“(a) Defendant, Brian Novak. No X .
“(b) Defendant, Stephanie Lea Peranich. No X.” (See jury verdicts: Peranich v. Novak, 00 CV 5127; Novak v. Peranich, 01 CV 3874; Cadora v. Novak and Peranich, 00 CV 2551.)

After the above verdict was read, the plaintiff, Cadora, made his objection on the record and subsequently filed the present motions requesting post-trial relief. The relief requested is for judgment n.o.v. based upon the inconsistent verdicts rendered, or alternatively, for the granting of a new trial. Such motions are required to be filed within 10 days of the jury verdict, unless additional time is permitted by the court. Here, the plaintiff filed his motions October 8, 2003, with the court’s permission for an extension.

Post-Trial Relief

Pursuant to Pa.R.C.P. 227.1, post-trial motions may be filed upon written motion by any party to an action, and, the court may:

“(1) order a new trial as to all or any of the issues; or
“(2) direct the entry of judgment in favor of any party; or
“(3) remove a nonsuit; or
“(4) affirm, modify or change the decision; or
“(5) enter any other appropriate order.”

This court has previously set forth the standards regarding judgment n.o.v. and granting of a new trial in Covey v. Deer Park Lumber Inc., 01 CIV 4587 C.C.P. Lacka. Cty. (Judge Minora, January 16, 2004). We shall begin our discussion by restating those points herein.

A judgment n.o.v. can be entered upon two bases: (1) where the movant is entitled to judgment as a matter of law and/or (2) the evidence was insufficient to sustain the verdict since no two reasonable minds could disagree that the verdict should have been rendered for the movant. Van Zandt v. Holy Redeemer Hospital, 806 A.2d 879, 885 (Pa. Super. 2002); Parker v. Freilich, 803 A.2d 738, 744 (Pa. Super. 2002); see also, Janis v. AMP Inc., 856 A.2d 140 (Pa. Super. 2004). After reviewing the record, with all factual inferences decided against the movant, the law must nonetheless necessitate a verdict in the movant’s favor for the court to grant a judgment n.o.v. as a matter of law. Janis, supra at 143. In regard to the second factor, the court will grant a judgment n.o.v. when, after reviewing the evidence of record, the court concludes that the evidence presented was more than sufficient for a jury to return a verdict for the movant. Id. The reviewing court must consider all the evidence admitted at trial in deciding whether there was sufficient competent evidence to sustain the verdict, Cruz v. Northeastern Hospital, 801 A.2d 602, 607 (Pa. Super. 2002), the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the verdict winner. Hohns v. Gain, 806 A.2d 16, 19 (Pa. Super. 2002); Fanning v. Davne, 795 A.2d 388, 393 (Pa. Super. 2002). Furthermore, when considering questions concerning credibility and weight of the trial evidence, the trial court may not substitute its judgment for that of the fact-finder. Van Zandt, 806 A.2d at 886; Parker, supra.

A verdict is deemed to be against the weight of the evidence only when it is so contrary to the evidence as to shock one’s sense of justice, Hohns, 806 A.2d at 21 -22, such that the award of a new trial is imperative “so that right may be given another opportunity to prevail.” Yacoub v. Lehigh Valley Medical Associates, 805 A.2d 579, 586 (Pa. Super. 2002). Unlike judicial review of a motion for judgment n.o.v., “[t]he court is not required to consider the evidence in the light most favorable to the verdict winner when passing on the question of whether a verdict is against the weight of the evidence.” Lanning v. West, 803 A.2d 753, 766 (Pa. Super. 2002). But, see Parker, 803 A.2d at 744 (stating that, in determining if a new trial should be granted, “we must consider whether, viewing the evidence in the light most favorable to the verdict winner, a new trial would produce a different verdict.”). It is black letter law that a jury is entitled to believe all, part, or none of the testimony or evidence presented, Pioneer Commercial Funding Corp. v. American Financial Mortgage Corp., 797A.2d269,279 (Pa. Super. 2002), and may accept or reject testimony or evidence in whole or in part even if it is uncontradicted. Bezerra v. National R.R. Passenger Corp., 760 A.2d 56, 63 (Pa. Super. 2000), appeal denied, 567 Pa. 708, 785 A.2d 86 (2001); Rasieleski v. Connor, 56 D.&C.4th 257, 262-63 (Lacka. Cty. 2002).

The standard to be applied to a motion for judgment n.o.v. and motion for a new trial are similar, but not identical. Thus, when considering a request for a new trial, it is not the role of a reviewing court to pass on the credibility of witnesses and “a new trial should not be granted because of a mere conflict in testimony or because the trial judge, on the same facts, would have arrived at a different conclusion.” Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002); Rasieleski, 56 D.&C.4th at 262. The remedy of a new trial is simply not appropriate in cases where the jury could have decided the matter in favor of either party. Hohns, supra; Lanning, supra.

Multiple Jury Verdicts Are Presumed Consistent

Our Superior Court has stated that “[t]he entry of a judgment notwithstanding the verdict... is a drastic remedy. A court cannot lightly ignore the findings of a duly selected jury.” Education Resources Institute Inc. v. Cole, 827 A.2d 493, 497 (Pa. Super. 2003), quoting Neal by Neal v. Lu, 365 Pa. Super. 464, 478, 530 A.2d 103, 110 (1987). Our Supreme Court has stated that “where there is a question of whether jury findings are consistent or inconsistent, consistency will be presumed unless there is no reasonable theory to support the jury’s verdict.” Beyrand v. Kelly, 434 Pa. 326, 329, 253 A.2d 269, 270 (1969), citing Hornak v. Pittsburgh Railways Co., 433 Pa. 169, 249 A.2d 312 (1969); Petrack v. Mlakar, Hanolt & Mlakar, 421 Pa. 136, 218 A.2d 750 (1966). Only if there is no logical theory that supports the verdict, then the presumption of consistency will be defeated. McDermott v. Biddle, 544 Pa. 21, 674 A.2d 665 (1996).

Issue

Presently, it is Mr. Cadora’s proposition that a verdict of negligence to one party requires verdicts of negligence to all. More specifically, since the jury found that Novak and Peranich were negligent to one another, they must have been negligent to Cadora. Moreover, at trial, an alternative theory was presented that Cadora violated the assured clear distance ahead rule, allowing the jury to make the determination of whether Cadora himself was negligent in bringing about his own injuries. Cadora’s counsel suggests that to propose Mr. Cadora was alone responsible for his involvement in the auto accident is mere speculation. (See plaintiff’s brief in support of post-trial motions p. 13.) It is our task herein to establish if the weight of the evidence produced at trial supports the plaintiff’s contention, and if so, is a judgment in favor of the movant warranted or must we grant a new trial.

Negligence

The causes of action asserted by Mr. Cadora against his defendants, Brian Novak and Stephanie Peranich are grounded in negligence. “To establish a cause of action in negligence, the plaintiff must demonstrate that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage.” Van Zandt v. Holy Redeemer Hospital, 806 A.2d 879, 886 (Pa. Super. 2002) quoting Martin v. Evans, 551 Pa. 496, 711 A.2d 458, 461 (1998). Additionally, if the plaintiff fails to meet the burden of proof, a judgment in favor of the defendant is proper. Van Zandt, supra at 886 citing Buckley v. Exodus Transit & Storage Corp., 744 A.2d 298, 309 (Pa. Super. 1999). Here our analysis is dependent upon determining whether Cadora sustained his burden of proof at trial on the charges of negligence of Novak and Peranich.

The Evidence

To determine whether a post-trial remedy is necessary in this negligence action, we must review the evidence of record. The parties presented the following testimony detailing the events of the accident.

In recalling the events of the accident, Peranich testified that as she was traveling in the right lane behind a tractor-trailer truck, she became uncomfortable as she believed the truck began to apply its brakes. She testified that she looked in all mirrors, checked her blind spot and proceeded to the left lane of travel. It is also Peranich’s testimony that her entire vehicle was in the left lane when the impact occurred. (N.T. 9/16/03 p. 86.) Conversely, Lieutenant Thomas, the officer on the scene, testified at trial that on the day of the accident Peranich explained to him that she started to move into the left lane and pass a tractor-trailer and at that time she was unsure if something hit her vehicle or if she struck something in the right lane. (N.T. 9/15/03 pp. 55-56.)

Brian Novak supported his position by testifying that his last clear memory before the crash was that he was sitting at the traffic light by the Fashion Mall on Route 6 as he was driving to work. (N.T. 9/16/03 p. 38.) Mr. Novak estimated that his speed before the accident was about 55 miles per hour. (N.T. 9/16/03 p. 41.) Brian Novak testified that he only retained bits and pieces of memory of the accident and he remained unsure of the reliability of his own testimony. (N.T. 9/16/03 Novak p. 38.) Novak testified that he was traveling in the left lane at a speed of 55 miles per hour, but again, he was unsure. (N.T. 9/16/03 p. 42.)

Mr. Cadora testified that he was in the passing lane of the expressway previous to the collision. He remembered observing a small vehicle in front of him. Cadora stated that when the Novak vehicle hit the berm, water splashed Cadora’s windshield momentarily blinding him. (N.T. 9/16/03 p. 57.) At that point the Novak and Cadora collision occurred. (N.T. 9/16/03 p. 57.) Cadora recalled that he hit his brakes but already had impact with Novak. (N.T. 9/16/03 p. 57.) Mr. Cadora provided testimony that he was traveling three to four car lengths behind Mr. Novak prior to impact. (N.T. 9/16/03, p. 60.) Yet there is conflicting testimony that Cadora was traveling only one car length behind Novak before the collision. (N.T. 9/ 16/03 pp. 61-62.)Additional testimony was provided that, following the accident, Mr. Cadora told Ms. Peranich in the hospital that the accident was not her fault. (N.T. 9/ 16/03 Peranich p. 82.) Yet, Cadora refuted he ever made that statement. (N.T. 9/16/03 Cadora p. 65.)

The experts’ accounts as to the course of events are somewhat different. Mr. Taylor, a traffic accident reconstructionist, was offered as an expert to share his opinion as to the events involved in the accident. Mr. Taylor based his opinion on the materials provided to him, including the Scranton Police Accident Report no. 9940755, photographs of the vehicles and a view of the scene. (N.T. 9/15/03 p. 26.) The conclusion provided to the jury by Mr. Taylor was that the Novak and Peranich collision occurred while Peranich was in the process of a lane change from the right to left lanes. (N.T. 9/15/03 p. 30.) (emphasis added) As indicated to the jury, Taylor pointed to the damage sustained to the left rear comer of the Peranich vehicle and side of her car by pointing to a photograph ofPeranich’s vehicle. (See plaintiff’s exhibit no. 3; N.T. 9/15/03 p. 31.) Again Taylor, employing a photograph, indicated to the jury that the Novak vehicle was damaged above the right front bumper. The damage, he explained, moved right to left along the bumper, which is referred to as an angular impact. (See plaintiff’s exhibit no. 17; N.T. 9/15/03 p. 32.) Taylor explained this damage was indicative of contact moving from the left to right direction. (Id.) When asked on cross-examination whether the accident involving Mr. Cadora’s vehicle and Mr. Novak’s vehicle occurred after the collision of the Novak and Peranich vehicles, Mr. Taylor, in his expert capacity, answered yes. (N.T. 9/15/03 p. 45.) Taylor suggested that it was his belief Mr. Cadora was not responsible for the accident. (Id.)

Mr. Barrett was offered as an additional expert, also as an accident reconstructionist. Mr. Barrett stated to a reasonable degree of accident reconstruction certainty, relying on photographic evidence, that the Peranich and Novak vehicles endured an angular crash based upon the location of the damage, contact damage and induced damage on both vehicles. (N.T. 9/16/03 p. 120.) He explained, with a reasonable amount of certainty, that after the point of impact the Peranich vehicle rotated in a counterclockwise direction toward the concrete divider separating opposing traffic, while the Novak vehicle rotated in a clockwise fashion exposing the right side of the vehicle to the remaining traffic in the southbound lanes. Testimony was provided that the amount of override damage to the Novak vehicle indicates that Novak attempted to decelerate or brake prior to impact. (N.T. 9/ 16/03 p. 133.) According to Barrett, the cause of the Novak and Peranich crash was determined to be that Novak was traveling at a greater speed than the Peranich vehicle. (N.T. 9/16/03 p. 135.) It is uncontested that the Peranich vehicle and the Cadora vehicle never made contact.

After reviewing all the testimony, including that of the parties and experts, the only thing that is clear is that no one knows for sure exactly how the accident took place. No conclusive evidence was provided by either expert as to the cause of the Novak and Cadora collision although the experts agreed Cadora was not the sole cause.

Immediately after the accident occurred, two cars were strewn across both southbound lanes of travel as the Peranich vehicle was located down the Keyser Avenue exit ramp. Undoubtedly, the jury, as the finder of fact, had many different versions of the same story to sort through.

The Instruction

The court’s instructions to the jury with regard to all three vehicles specified that there was one accident, but being a row of dominos within the accident. (N.T. 9/17/ 03 p. 117.) Since this trial involved claims of negligence, on the issue of factual cause, the jury was instructed that the plaintiff carried the burden of proof to show the defendant’s conduct caused the plaintiff’s damages. (N.T. 9/17/03 p. 120.) The court further instructed that “the test for factual causation has been met when the conduct in question has such an effect in producing the accident as to lead reasonable persons to regard it as one of the contributing causes that is neither insignificant nor inconsequential considering all the circumstances of the case.” (N.T. 9/17/03 p. 123.) The jury was further directed by instruction that the plaintiff must prove that the defendant’s conduct caused the plaintiff’s damages. (N.T. 9/17/03 p. 120.) Additionally, the court provided the jury with the duties regarding several alternative theories of negligence presented under the Pennsylvania Motor Vehicle Code, 75 Purdens Consolidated Statute Annotated §3309 dealing with a lane change, speed of travel, assured clear distance and speeding.

Conclusion

At present, it is the court’s role to determine whether the negligent and non-negligent verdicts can be reconciled. In carrying out this function, the court must determine if any reasonable theory exists to support the jury’s verdict; if so, consistency of the verdicts will be presumed. Beyrand supra. This function requires review of the evidence by the court to determine if the evidence exists to support the jury’s verdict. We conclude that such evidence does exist.

Looking at the evidence in the light most favorable to the verdict winner, this court believes that the jury concluded that the plaintiff, Mr. Cadora, did not meet his burden of proof. He failed to establish that the negligence of Novak or Peranich caused Cadora’s damages. Novak and Peranich were found not to be liable to Cadora for any damages sustained. Evidence exists to sustain the verdict. Quite possibly the jury believed Mr. Cadora himself was more responsible for the collision in not following the assured clear distance rule, especially given the precipitation and wet conditions on the day of the collision. Adequate evidence exists to support the jury’s verdict. Therefore, under these circumstances, the presumption that the verdicts here are consistent prevails since there are several valid and reasonable explanations, supported by the weight of the evidence, that justify the jury verdicts rendered. This is especially so when viewed through the prism of the light most favorable to the verdict winner. We do not find that the movant is entitled to judgment as a matter of law. Further, the evidence presented at trial was sufficient to sustain a verdict in favor of the defendants. Moreover, reviewing the record in the light most favorable to the verdict winners, a new trial would not be justified. An appropriate order follows.

ORDER

And now, to wit, July 19,2005, upon consideration of the plaintiff, Cadora’s post-trial motions, arguments of counsel and in accordance with the preceding memorandum, it is hereby ordered and decreed:

(1) Plaintiff’s post-trial motion for judgment n.o.v. is denied and dismissed.

(2) Plaintiff’s post-trial motion for grant of new trial is denied and dismissed.

      . Peranich v. Novak docketed at Lackawanna County no. 00 CV 5127; Novak v. Peranich docketed at Lackawanna County no. 01 CV 3874; Cadora v. Novak and Peranich docketed at Lackawanna County no. 00 CV 2551.

      . All references made herein refer to transcript of three-day trial of September 15, 2003 through September 17, 2003 before this court.

      . Testimony was provided indicating the speed limit on the date of the collision to be 40 mph or 50 mph. (See N.T. 9/16/03, p. 85.)

      . The claims raised by all parties against Mary Ann Novak and Anthony Novak Jr. have been discontinued and terminated with prejudice by stipulation entered by the parties and filed October 23, 2002. The only remaining claim at trial involving Mary Ann and Anthony Novak was for negligent entrustment.

      . Following question no. 1 was an instruction that stated:
      “If you answered question no. 1 ‘No’ as to all defendants, this represents a verdict in favor of the defendants and the plaintiff, Darren Cadora, cannot recover and you should not answer any further questions and you should return to the courtroom. If you answered ‘Yes’ to either defendant, please go on to question no. 2.”

      . In the McDermott v. Biddle case, the Philadelphia Inquirer published three articles entitled “Above the Law” (ALT I) authored by Daniel R. Biddle about the Supreme Court of Pennsylvania and particularly, the late Justice James T. McDermott, as a Supreme Court Justice and after he left the bench. One of the published articles alleged that McDermott employed nepotism and his prestige to compel the Philadelphia County District Attorney into hiring his son, Jamie McDermott as an assistant district attorney. McDermott instituted a libel action against the paper, the author and publishing corporations. The next year, a series of articles were printed with a few minor changes in tabloid form and included commentaries and cartoons by the defendants of the first action (ALT II). The tabloid publication was circulated at a national conference of the American Bar Association, the American Judicature Society and journalism institutes and newspapers across the country. McDermott instituted a second libel action. Both actions were consolidated and tried together. Separate verdict slips were presented to the jury, one for each publication and requiring individual findings be made to each publication. The jury returned a verdict in which McDermott had failed to prove that the first publication in the Philadelphia Inquirer was false. A verdict was returned in which the tabloid publication was false and damages were awarded in the amount of $3,000,000 in compensatory damages and $3,000,000 in punitive damages. McDermott died and his sons succeeded to his interest and were substituted as parties. Post-trial motions were made to the trial court which found that the verdicts were fatally inconsistent and granted a new trial. McDermott’s estate appealed the order that granted a new trial. Upon review, the Supreme Court held that it was acceptable for the jury to reach different conclusions in the two cases and that the verdicts must stand. The court noted that the jury’s verdicts reflected that there was a material difference in the two publications that allowed them to find that the tabloid article was false while the original was not.

      . The assured clear distance rule was explained to the jury as follows: “no person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within an assured clear distance ahead.... This act can dictate the duty of care required of someone in the same situation as Mr. Novak or Mr. Cadora. If you find there was a violation of this act... you may find that either Mr. Novak or Mr. Cadora were negligent as a matter of law. However. You are not required to make that finding.” (See N.T. 9/17/03, pp. 129-30.)

      . Override damage — damage above the front bumper. (See N.T. 9/ 16/03 p. 133.)

      . As the statutes were explained and provided to the jury, they received an instruction that, should they find a violation of one of the duties of care listed, then they too must find that the parties required to follow those duties of care as negligent. (N.T. 9/17/03 pp. 126-31.)


author: KISTLER, J,

text:
    Commonwealth v. Glasser

      Nathan L. Boob, for Commonwealth.

      Joseph L. Amendola, for defendant.
    July 6, 2005
   KISTLER, J,

Presently before this court is Matthew B. Glasser’s (defendant) omnibus pretrial motion. Defendant is attempting to have evidence suppressed regarding a driving under the influence charge.

Defendant had initially filed motions to suppress evidence, suppress statements, suppress chemical and blood test results, suppress results of field sobriety tests, and a motion to compel Commonwealth to provide defendant with written statement of uncharged misconduct evidence. Defendant has recently withdrawn all motions except for his motion to suppress evidence. That motion is the subject of this opinion.

FACTUAL BACKGROUND

On January 14,2005, at approximately 1:25 a.m., Officer Michael Mamolen of the State College Police Department was patrolling the 200 block of West College Avenue in State College, Pennsylvania. Due to the time of day, the traffic lights were flashing red. Normally these lights flash yellow to accommodate the more heavily traveled College Avenue yet, that night, those lights flashed red. Mamolen observed a vehicle approach the traffic light at College Avenue and Burrows Street. The vehicle proceeded to make a right onto Burrows Street without stopping for the flashing red light. The vehicle made the turn at approximately 15 miles per hour. Upon noticing that the vehicle failed to stop, Mamolen initiated a vehicular stop. Mamolen testified the vehicle was not speeding or violating any other traffic laws.

When Mamolen approached the vehicle, the driver identified himself as defendant. Mamolen observed that defendant’s eyes were red and sleepy, he slurred his speech, and the odor of an intoxicating beverage emanated from his breath. Mamolen also observed that defendant had an open container of alcohol in a cup holder of the car’s console. Based on these observations, Mamolen had defendant perform field sobriety tests. Defendant failed each test. Mamolen then transported defendant to Mount Nittany Medical Center for a blood sample. This blood sample revealed defendant had a blood alcohol content of .224 percent.

DISCUSSION

“Whenever a flashing red or yellow signal is used in a traffic signal or with a traffic sign it shall require obedience by vehicular traffic as follows:

“(1) Flashing red — when a red lens is illuminated with rapid intermittent flashes, drivers of vehicles shall stop in the same manner as at a stop sign, and the right to proceed shall be subject to the rules applicable after making a stop at a stop sign as provided in section 3323 (relating to stop signs and yield signs).” 75 Pa.C.S. §3114(a)(1).

Pursuant to section 3323, “every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line or, if no stop line is present, before entering a crosswalk on the near side of the intersection or, if no crosswalk is present, then at the point nearest the intersecting roadway where the driver has a clear view of approaching traffic on the intersecting roadway before entering.” 75 Pa.C.S. §3323(b).

A police officer is vested with the authority to effectuate a Vehicular stop on the basis of “articulable and reasonable grounds to suspect a violation” of the Motor Vehicle Code. 75 Pa.C.S. §6308(b). Likewise, “There is no requirement that an actual violation be established, only that there be a reasonable basis for the officer’s action in stopping the vehicle.” Commonwealth v. Vincett, 806 A.2d 31, 33 (Pa. Super. 2002), citing Commonwealth v. Palmer, 751 A.2d 223, 226 (Pa. Super. 2000).

The defense cites Commonwealth v. Gleason, 567 Pa. 111, 785 A.2d 983 (2001), suggesting that Mamolen did not have sufficient probable cause to effectuate a vehicular stop. In Gleason, the officer effectuated a vehicular stop based on the defendant’s violation of section 3309 of the Motor Vehicle Code — driving on roadways laned for traffic. The court, however, ruled that the police officer did not have sufficient probable cause to justify the stop. The court reasoned that by crossing a painted berm line by 6 to 8 inches for at least a second on two occasions when there were no other vehicles on the road did not indicate the driver posed a threat to other vehicles. Id. at 121, 785 A.2d at 989. Here, defendant argues that there were no other vehicles or pedestrians on the road, who he could potentially harm. Also, defendant contends his stop was a “rolling stop,” not a blatant disregard for the stop signal.

Alternatively, the Commonwealth argues that pursuant to 75 Pa.C.S. §6308, a police officer need only have a reasonable suspicion that criminal activity is afoot in order to stop a vehicle. The Commonwealth believes that by enacting section 6308, the Pennsylvania Legislature intended to lower the probable cause standard utilized by the Gleason court to a reasonable suspicion standard. Here, the Commonwealth argues, defendant’s failure to stop at the flashing red light is a violation of section 3114(a)(1), which is sufficient reasonable suspicion to suspect defendant violated a portion of the Motor Vehicle Code.

This court believes that, although the legislature may have enacted section 6308 to lower the standard for stopping a vehicle, Gleason’s probable cause standard has yet to be overruled by the courts and will therefore be applied to the facts in this case. Therefore, having reviewed the evidence and the relevant law, this court believes Mamolen did have sufficient probable cause to effectuate the vehicular stop. The facts in Gleason are narrowly drawn, and are inconsistent with the facts in the current case. Mamolen saw defendant drive through a flashing red light in an urban area, at 15 miles per hour without coming to a complete stop. Gleason addresses erratic driving, crossing over the center line, and possible harm to other motorists. Here, defendant clearly committed a per se violation of the Motor Vehicle Code by failing to completely stop at the red light. As such, it is irrelevant whether or not there were other vehicles on the road or pedestrians walking during the time of the violation.

ORDER

And now, July 6, 2005, Matthew B. Glasser’s omnibus pretrial motion to suppress evidence is hereby denied.