author: SIBUM, J.,

text:
    Green v. Klein

      C.P. of Monroe County,
    no. 2381 Civil 2010.

      Thomas J. Foley, for plaintiff.

      Charles R. Osinski, Edward J. McKarski and Maryann Higgins, for defendants.
    August 10, 2010
   SIBUM, J.,

This matter comes before the court on defendant Slawomir Klein’s (defendant owner) preliminary objections to plaintiff’s amended complaint. Plaintiff commenced this action against defendants seeking damages for injuries she sustained as a result of a motor vehicle accident allegedly caused by defendant Krzysztof Klein (defendant driver). Defendant owner filed preliminary objections raising two motions to strike for legal insufficiency of a pleading (demurrer) as to the issues of negligent entrustment and punitive damages, a motion to strike for inclusion of scandalous or impertinent matter, and a motion to strike for insufficient specificity in a pleading/failure to conform to law or rule of court. Although defendant did not file a brief in support of its preliminary objections to the amended complaint, plaintiff filed a brief in opposition to the preliminary objections. Both parties argued their respective positions before the court on July 6,2010 and we are now prepared to decide this matter.

DISCUSSION

Pursuant to Pennsylvania Rule of Civil Procedure 1028(a), preliminary objections may be filed by any party to any pleading on several grounds, including:

“(2) Failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;
“(3) Insufficient specificity in a pleading;
“(4) Legal insufficiency of a pleading (demurrer).” Pa.R.C.P. 1028(a)(2), (3), (4).

In considering preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 638, 584 A.2d 403, 407 (1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn Title Insurance Co. v. Deshler, 661 A.2d 481, 483 (Pa. Commw. 1995).

The plaintiff must state the material facts of a complaint “in a concise and summary form.” Pa.R.C.P. 1019(a). The allegations “must apprise the defendant of the claim being asserted and summarize the essential facts to support that claim.” Estate of Swift v. Northeastern Hospital of Philadelpia, 456 Pa. Super. 330, 337, 690 A.2d 719, 723 (1997) appeal denied, 549 Pa. 716, 701 A.2d 577 (1997). The “lower court has broad discretion in determining the amount of detail that must be averred since the standard of pleading set forth in Rule 1019(a) is incapable of precise measurement.” United Refrigerator Co. v. Applebaum, 410 Pa. 210, 213, 189, A.2d 253, 255 (1963).

When ruling on a preliminary objection that would dismiss the action, we are mindful to sustain the objection only in the cases which are clear and free from doubt. King v. Detroit Tool Co., 452 Pa. Super. 334, 337, 682 A.2d 313, 314 (1996). Alternatively, a motion to strike a pleading may be granted when lack of conformity to a law or a rule of court occurs. Pa.R.C.P. 1028(a)(2).

a. Defendant’s Motion To Strike for Legal Insufficiency of a Pleading (Demurrer) — Negligent Entrustment

Defendant owner first asks this court to dismiss plaintiff’s amended complaint based on the preliminary objection for legal insufficiency of a pleading (demurrer). The purpose of a demurrer is to test the legal sufficiency of a complaint or other pleading. In determining whether the factual averments of a complaint are sufficient to state a cause of action, all doubts must be resolved in favor of the sufficiency of the complaint. Slaybaugh v. Newman, 330 Pa. Super. 216, 220, 479 A.2d 517, 519 (1984). A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Id.; see also, Cianfrani v. Commonwealth State Employees’ Retirement Board, 505 Pa. 294, 297, 479 A.2d 468, 469 (1984). If any theory of law will support the claim raised by the complaint, dismissal is improper. Slaybaugh, supra; Cianfrani, supra.

The relevant facts of this case as alleged by plaintiff in the amended complaint are as follows. On March 21, 2008, plaintiff was a passenger in a motor vehicle driven by David Robertson, now deceased, traveling northbound on State Route 209 approaching the intersection at Airport Road, Township of Smithfield, Pennsylvania. (Amended complaint, ¶5.) Defendant Krzysztof Klein was the operator of a second vehicle which he drove into the northbound lane, causing a head-on collision between his vehicle and the vehicle occupied by plaintiff. (Id. at 6, 7.) Plaintiff sustained serious bodily and personal injuries; Robertson died as a result of the collision. (Id. at 7.) The vehicle driven by defendant Krzysztof Klein was owned by his father, defendant Slawomir Klein. (Id. at 6.) Plaintiff asserts that the collision was caused by the gross, reckless, indifferent, careless, negligent, unlawful and outrageous conduct of defendant driver and that defendant owner negligently entrusted defendant driver with the use of his vehicle knowing he would engage in such reckless, negligent, and/or outrageous behavior. (Id. 8, 25, 26.)

In his preliminary objections, defendant owner first argues that plaintiff has failed to allege sufficient facts in the amended complaint to establish that he had actual knowledge at the time his vehicle was allegedly entrusted to defendant driver that (1) defendant driver was unfit to operate the vehicle, (2) was not authorized or licensed to operate a motor vehicle, and (3) was operating the vehicle in violation of the Motor Vehicle Code. Defendant owner argues that plaintiff has therefore failed to establish a cause of action for negligent entrustment against defendant owner. We disagree.

The tort of negligent entrustment is described as follows:

“It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.” Christiansen v. Silfies, 446 Pa. Super. 464, 473, 667 A.2d 396, 400 (1995) citing the Restatement (Second) of Torts, §308.

In order to plead a valid cause of action for negligent entrustment, a plaintiff must plead that the defendant (1) permitted a third person (2) to use a thing under the control of the defendant and (3) that the defendant knew or should have known that the third person intended to or was likely to use the thing in such a way that would harm another.” Nading v. Boice, 61 D.&C.4th 353, 358 (2003) citing Ferry v. Fisher, 709 A.2d 399, 403 (Pa. Super. 1998).

At issue in the present case is whether defendant owner knew or should have known that defendant driver intended or was likely to use his vehicle in a reckless or negligent manner. We can only sustain a demurrer where the complaint specifically shows that the law will not allow a recovery under the facts averred. Reviewing the allegations of plaintiff’s amended complaint in the light most favorable to plaintiff, it appears that plaintiff has plead sufficient facts to make out the prima facie elements of the charges averred against defendant owner.

Section 1574 of the Pennsylvania Motor Vehicle Code provides as follows:

“(a) General rule. — No person shall authorize or permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under this chapter or who is not licensed for the type or class of vehicle to be driven.
“(b) Penalty. — Any person violating the provisions of subsection (a) is guilty of a summary offense and shall be jointly and severally liable with the driver for any damages caused by the negligence of such driver in operating the vehicle.” 75 Pa.C.S. §1574.

Furthermore, section 1575 of the Pennsylvania Motor Vehicle Code provides as follows:

“(a) General rule. — No person shall authorize or knowingly permit a motor vehicle owned by him or under his control to be driven in violation of any of the provisions of this title.” 75 Pa.C.S. §1575.

The facts as alleged in plaintiff’s amended complaint, if accepted as true, establish a prima facie case for violation of the above statutes. Defendant driver had been previously convicted for various moving violations including driving while his license was suspended or revoked. Plaintiff alleged that because of defendant driver’s transgressions, defendant owner signed an “Endorsement 3283 — Voiding automobile insurance while a certain person is operating a car” with his insurance provider, Nationwide Insurance Company. This also evidences that defendant knew his son was driving without insurance. Plaintiff also alleges that having known of defendant driver’s prior transgressions, defendant owner knew or should have known that his son was likely to continue to engage in this type of conduct at the time he entrusted the car to him. Our Superior Court has determined that a plaintiff must prove knowledge on the part of a lender of the incompetency of the person to whom the vehicle is entrusted at the time the vehicle is entrusted. Wertz v. Kephart, 374 Pa. Super. 274, 284, 542 A.2d 1019, 1023 (1988). At this stage in litigation and under the facts averred, we find it premature to dismiss plaintiff’s claim for negligent entrustment against defendant owner, defendant’s preliminary objection will be denied.

b. Defendant’s Motion To Strike for Inclusion of Scandalous or Impertinent Matter

Defendant avers that numerous paragraphs in plaintiff’s amended complaint contain allegations that are scandalous and impertinent and therefore should be stricken. Specifically, defendant argues that the paragraphs contain allegations that are irrelevant, unrelated to the actual cause of the motor vehicle accident at issue, would be inadmissible as evidence and would inflame the social conscious or biases of the jury and suggest a decision on an improper basis.

Pa.R.C.P. 1028(a)(2) provides for preliminary objections to be filed for inclusion of scandalous or impertinent matter. “To be scandalous and impertinent, the allegation must be immaterial and inappropriate to the proof of the cause of action.” Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998). The court’s right to strike impertinent matter “should be sparingly exercised and only when a party can affirmatively show prejudice.” Commonwealth Department of Environmental Resources v. Hartford Accident and Indemnity Co., 40 Pa. Commw. 133, 138, 396 A.2d 885, 888 (1979).

After review of the paragraphs questioned by the defendant, we find the allegations as to defendant driver’s prior drug convictions and use to be immaterial to plaintiff’s cause of action. Plaintiff has provided no factual evidence let alone allegations that defendant driver was under the influence of drugs or alcohol at the time of the accident. Plaintiff has also failed to provide any information or factual averments, albeit speculation, to make a connection between defendant driver’s prior drug convictions and the events or actions that caused the accident. Without such evidence to corroborate plaintiff’s beliefs and speculations that the accident was caused by defendant’s drug and/or alcohol use while driving (including the lack of toxicology reports or blood alcohol concentration results) we find the inclusion of the paragraphs pertaining to defendant’s previous drug use to be prejudicial and immaterial to plaintiff’s cause of action.

Furthermore, we find paragraph 21 in regards to defendant driver’s prior criminal convictions for retail theft and disorderly conduct to be immaterial and completely irrelevant to the facts of this case. As to paragraph 23, we find that plaintiff’s averment fails to specify which provisions of the Motor Vehicle Code defendant driver has violated. Such broad allegations as presented are prejudicial without clarity and specification. Defendant’s preliminary objections as to paragraphs 20,21,22(j), (k), (1), (m) and 23 will be sustained. We find the remaining paragraphs to be supported by factual averments in plaintiff’s amended complaint and that they substantially relate to the actual cause of action at issue. Defendant’s preliminary objections as to the remaining paragraphs will be denied.

c. Defendant’s Motion To Strike for Legal Insufficiency of a Pleading (Demurrer) — Punitive Damages

Defendant also avers that there are no requisite facts to support plaintiff’s conclusion that defendant owner’s conduct was so outrageous as to warrant recovery of punitive damages. We agree.

“[T]he purpose of punitive damages is to punish outrageous and egregious conduct done in a reckless disregard of another’s rights; it serves a deterrence as well as a punishment function.” Johnson v. Hyundai Motor America, 698 A.2d 631, 639 (Pa. Super. 1997). Punitive damages may be awarded for conduct that is outrageous because of defendant’s evil motive or his reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747 (1984). Such conduct must be malicious, wanton, willful, oppressive, or exhibit a reckless indifference to other’s rights. Jahanshahi v. Centura Development Co., 816 A.2d 1179, 1188 (Pa. Super. 2003). Furthermore, “one must look to the act itself together with all the circumstances including the motive of the wrongdoers and the relations between the parties. . . .” Feld, 506 Pa. at 395, 485 A.2d at 748; Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963). The actor’s state of mind is relevant in that the act or omission must be intentional, reckless or malicious. Id.

In this case, plaintiff is seeking punitive damages against defendant on the grounds that defendant knew or should have known of defendant driver’s prior criminal transgressions and that he was likely to continue to engage in similar conduct. We find that even if defendant owner negligently entrusted defendant driver with his vehicle, the facts as alleged do not demonstrate evil motive or reckless indifference to the rights of others by defendant owner. There are no specific facts alleged to establish any bad motive on the part of defendant owner to intend for or recklessly allow such acts to occur. Such allegations that defendant negligently entrusted his vehicle to his son, without more, fail to show how defendant owner acted with gross, reckless, indifferent or outrageous disregard to others. Defendant’s preliminary objection will be sustained and plaintiff’s demand for punitive damages in Count II of the amended complaint will be stricken.

d. Defendant’s Motion To Strike for Insufficient Specificity in a Pleading and Failure to Conform to Law or Rule of Court

Defendant finally avers that plaintiff has used vague, overbroad and all-inclusive language in its amended complaint and has failed to satisfy the applicable rules of civil procedure. We agree.

Pa.R.C.P. 1019(a) requires that “the material facts on which a cause of action or defense is based shall be stated in concise and summary form.” Pa.R.C.P. § 1019(a). Pennsylvania is a fact-pleading state. Pleadings in a fact-pleading jurisdiction serve the purpose of putting an opponent on notice of what he will be called upon to meet at trial and to define the issues for trial. Mansour ex rel. Mansour v. Gnaden Huetten Memorial Hospital, 3 D.&C.5th 149 (2007); Estate of Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 337, 690 A.2d 719, 723 (1997) (holding that the allegations “must apprise the defendant of the claim being asserted and summarize the essential facts to support the claim”). “The purpose behind the rules of pleading is to enable parties to ascertain, by utilizing their own professional discretion, the claims and defenses asserted in the case.” Estate of Swift, 456 Pa. Super. at 337, 690 A.2d at 723. “This purpose would be thwarted if courts, rather than the parties, were burdened with the responsibility of deciphering the causes of action from a pleading of facts which obscurely support the claim.” Id.

Defendant takes issue with the following language as used by plaintiff in her amended complaint:

“(22) The gross, reckless, indifferent, careless, negligent, unlawful and outrageous conduct of defendant Krzysztof Klein consisted of, among other things, one or more of the following:
“(h) operating the vehicle when he knew he was not fit and/or impaired and/or too tired to do so (from staying up all night or otherwise), and falling asleep at the wheel;
“(25) Defendant Slawomir Klein knew of defendant Krzysztof Klein’s prior transgressions, including those identified earlier in this amended complaint;
“(26) The gross, reckless, indifferent, careless, negligent, unlawful and outrageous conduct of defendant Slawomir Klein consisted of, among other things, one or more of the following. ...” (Amended complaint, ¶¶22, 25, 26.) (emphasis added)

Plaintiff’s use of the words “he was not fit and/or impaired,” “or otherwise,” “including those,” and “among other things” is too broad to apprise defendant owner of the exact nature of the claims being asserted against him. Plaintiff skirts around the issue and instead must specifically plead what she believes defendant driver’s condition to be at the time of the accident as well as define what “among other things” means. Plaintiff must plead her theory of the case more specifically as to allow defendant a fair opportunity to counter those allegations in his defense. Defendant’s preliminary objections will be sustained. Plaintiff will be granted leave to amend her amended complaint in order to plead the allegations of these paragraphs with greater specificity.

ORDER

And now, August 10, 2010, upon consideration of defendant Slawomir Klein’s preliminary objections to plaintiff’s amended complaint, it is ordered as follows:

(1) Defendant’s motion to strike for legal insufficiency of a pleading (demurrer) as to negligent entrustment is denied.

(2) Defendant’s motion to strike for inclusion of scandalous or impertinent matter is sustained in part and denied in part. Defendant’s preliminary objections as to paragraphs 20,21,22(j), (k), (1), (m) and 23 are sustained and the paragraphs are hereby stricken from plaintiff’s amended complaint. Defendant’s preliminary objections as to the remaining paragraphs are denied.

(3) Defendant’s motion to strike for legal insufficiency of a pleading (demurrer) as to punitive damages is sustained. Plaintiff’s demand for punitive damages in Count II of the amended complaint is stricken.

(4) Defendant’s motion to strike for insufficient specificity in a pleading and failure to conform to law or rule of court is sustained. Plaintiff is granted 20 days leave to amend her amended complaint in conformity with this opinion.

      . Defendant references and takes issue with the following paragraphs in plaintiff's amended complaint: ¶¶17(a)-(f), 18, 19, 20, 21, 22(a), (h), (j)-(m), (v) and (23). (Defendant’s preliminary objections, ¶37.)


source: Caselaw Access Project

author: ZULICK, J,

license: Public Domain

text:
    McKinney v. Shelkin

      C.P. of Monroe County,
    no. 11930 Civil 2008.

      Jason R. Ohlinger and Charles Kannebecker for plaintiff.

      Jody A. Mooney, Gregory C. Kunkle, and David A. Williams for defendants.
    August 5, 2010
   ZULICK, J,

This case is before the court on third-party defendant, Marsha McKinney’s, motion for summary judgment. This action arises from an auto collision on February 1, 2007. Plaintiff, Craig McKinney’s complaint alleges that he was a passenger in the vehicle operated by his mother, Marsha McKinney. The McKinney vehicle was struck by a vehicle driven by Alicia Shelkin and owned by Scott Shelkin. Specifically, the complaint alleges that the Shelkin vehicle was driving southbound on Route 3016 in Monroe County and while Ms. McKinney made a right-hand turn onto Hawk Terrace Road, Alicia Shelkin negligently caused her vehicle to collide with the McKinney vehicle.

On or about June 29, 2009, the Shelkins filed their answer with new matter to Craig McKinney’s complaint. On or about February 8, 2010, the Shelkin defendants filed a third-party joinder complaint against Marsha McKinney. In the joinder complaint, the Shelkins allege that Marsha McKinney was at fault for the collision because she was in the process of making a left turn onto White Church Road when she suddenly switched to a right-turn signal and turned right into Hawk Terrace Road causing her vehicle to collide with that of Alicia Shelkin, who was passing her on the right at the time.

On March 25, 2010, a deposition of all parties was conducted. On April 6, 2010, Marsha McKinney filed her answer to new matter. Marsha McKinney filed a motion for summary judgment on June 2,2010. The Shelkins filed a brief in opposition on June 29, 2010. Oral argument was heard on July 6,2010. Counsel for both parties were present.

Summary judgment may be granted pursuant to Pa.R.C.R 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-69 (1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b); Cosmas v. Bloomingdales Bros. Inc., 442 Pa. Super. 476, 481, 660 A.2d 83, 85 (1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 488 Pa. at 204, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1973). The court must also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employers Mutual Companies, 294 Pa. Super. 577, 440 A.2d 616 (1982); Ritmanich v. Jonnel Enterprises Inc., 219 Pa. Super. 198, 280 A.2d 570 (1971). A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant. Elia v. Olszewski, 368 Pa. 578, 84 A.2d 188 (1951).

Marsha McKinney is seeking summary judgment. Ms. McKinney argues that no material issue of fact exists at this point. Ms. McKinney argues that her alleged changing of turn signals and then making a right-hand turn was neither the proximate cause nor a substantial factor in causing the accident.

In order to state a prima facie case of negligence the party (the Shelkins) must prove the following four elements (1) duty or obligation recognized at law; (2) breach of that duty; (3) a causal connection between the breach of that duty and the resulting injuries; and (4) actual loss or damage suffered by the complainant. Reilly v. Tiergarten Inc., 430 Pa. Super. 10, 14, 633 A.2d 208, 210 (1993).

Ms. McKinney contends that the Alicia Shelkin deposition clearly shows that Alicia Shelkin caused the collision by her inability to bring her vehicle to a safe stop behind the McKinney vehicle and failure to follow the assured clear distance rule.

However, Alicia Shelkin testified that she passed to the right of the Marsha McKinney vehicle as Ms. McKinney was making a left turn. McKinney’s left-turn signal was on at that point. The Motor Vehicle Code permits a driver to overtake another vehicle on the right, so long as that can be done safely. See 75 Pa.C.S. §3304. A driver must be “capable of stopping within the distance he can clearly see” under Pennsylvania’s assured clear distance rule. Springer v. Luptowski, 535 Pa. 332, 337, 635 A.2d 134, 136 (1993). Ms. McKinney testified that she was given contradicting directions by passengers in the car, and changed her turn signal to the right. She immediately began her turn to the right without checking to see if that could safely be done at that point. Marsha McKinney deposition, 31,35,41. Although a driver must have his or her vehicle under control at all times, so that he can stop “before doing injury to any person or property . . . one is not bound to anticipate negligence of another,” Fleischman v. Reading, 388 Pa. 183, 187, 130 A.2d 429, 431 (1957). There is a material question of which driver was at fault, and possibly the degree of negligence of each driver.

The question of whether Ms. McKinney’s actions were the proximate cause or a contributing factor to the collision is a question of genuine material fact which is properly submitted to the jury, Summary judgment will be denied.

ORDER

And now, August 5, 2010, following consideration of Marsha McKinney’s motion for summary judgment, Alicia and Scott Shelkin’s response and the parties arguments, it is ordered that summary judgment is denied.


author: DiVITO, J.,

text:
    Delgarcia v. Target

      Marc F. Greenfield, for plaintiff.

      Francis J. Grey Jr., for defendant
    September 8, 2010
   DiVITO, J.,

On June 4, 2009, plaintiff Bernadette Delgarcia filed suit against Target Corporation alleging liability for injuries sustained on November 13,2008 inside a Target store located at 4000 Monument Road in Philadelphia, Pennsylvania. According to the complaint, Ms. Delgarcia entered the Target store at approximately 11 a.m., crossed the carpeted entryway, and took several steps across the tile floor. Ms. Delgarcia then fell forward onto her hands and knees. She stood up and proceeded into the store. She did not seek help or notify any store employees. The incident was captured on the store’s surveillance camera. There is no evidence of any defect in the tile floor, of any unsafe conditions, or of any other customers falling that day.

An arbitration hearing was scheduled for January 29, 2010. The defendant’s filed an answer on July 6, 2009. On August 18,2009 Target Corporation filed a discovery hearing request concerning a motion to compel answers and production of documents. The hearing was scheduled for September 10, 2009. On November 21 and November 23, 2009, plaintiff and defendant, respectively, filed motions to compel depositions. A hearing for both motions was scheduled for December 17, 2009.

On December 15,2009, defendant Target Corporation filed a motion for summary judgment. A response date of January 15, 2010 was assigned. On December 18, a continuance was granted for the arbitration, and the arbitration hearing was rescheduled to March 18, 2010. Both Target Corporation and Ms. Delgarcia were also ordered to appear for depositions on January 6, 2010.

On February 3,2010 this court granted Target Corporation’s motion for summary judgment and dismissed with prejudice all claims against Target Corporation. Notice was given under Rule 236.

On April 15,2010 notice was given that appellant, Ms. Delgarcia, had 21 days in which to serve on this court a brief statement of matters complained of on appeal in accordance with Pa.R.C.P 1925(b). Appellant’s statement of matters complained on appeal was filed on May 5, 2010.

In her 1925(b) statement, appellant raises three matters. She asserts that she is receiving therapy, has medical bills, and deserves compensation for pain and suffering. These claims are insufficient to sustain an appeal to the motion for summary judgment entered on February 3.

This court begins by noting that summary judgment is appropriate where there is no genuine issue of material fact or a where the party which will bear the burden of proof fails to present evidence sufficient to present the issue to a jury. Pa.R.C.P. 1035.2. Instantly, a careful review of the matter indicates the plaintiff should be denied relief because she alleges no new evidence sufficient to create a genuine issue of fact. The complaint contains mere allegations, which is an insufficient basis to avoid summary judgment. Botkin v. Metropolitan Life Insurance, Co., 907 A.2d 641 (Pa. Super 2006). Even if all of the matters complained of on appeal are taken as true, they offer no basis for relief for the appellant/plaintiff.

In reviewing a grant of summary judgment, the appellate court may disturb the trial court’s order only upon an error of law or an abuse of discretion. Phillips v. Selig, 959 A.2d 420 (Pa. Super. 2008). The scope of review is plenary and the appellate court applies the same standard for summary judgment as the trial court. Petrongola v. Comcast-Spectacor L.P, 789 A.2d 204 (Pa. Super. 2001).

Where a motion for summary judgment is based upon insufficient evidence, the adverse party must come forward with evidence essential to preserve the cause of action. If the non-moving party fails to come forward with sufficient evidence to establish or contest an issue material to the case, the moving party is entitled to judgment as a matter of law. Rohrer v. Pope 918 A.2d 122, 128 (Pa. Super. 2007).

Appellant has failed to allege sufficient facts or establish that Target Corporation negligently failed to protect her from an unreasonable risk of harm about which it had actual or constructive knowledge. Appellant has not offered evidence that Target had actual or constructive notice of any alleged defect in the floor tile. The 1925(b) statement offers no additional basis for her theory of liability.

Given that the facts alleged by the appellant are not sufficient to sustain her cause of action and do not present a material issue of fact for a jury, it is suggested that this court’s ruling in favor of summary judgment for defendant Target Corporation be affirmed.


author: MAIER, S.J.,

text:
    Burgos v. City of Philadelphia

      Charles Jay Schleifer, for appellant.

      Linda S. Battistini, Bernadette Betzler, Theresa Young and Pauline J. Manos, for appellees.
    August 23, 2010
   MAIER, S.J.,

On July 2,2007, Tony Burgos (appellant) filed a civil complaint against the City of Philadelphia, Philadelphia Gas Works, and PECO Energy Company (appellees) for damages caused when appellant was thrown to the street after the minibike which he was riding struck and was caught in an unmarked hole in the street. On May 19, 2010, this court issued its findings of fact and conclusions of law, ruling in favor of appellees. On May 25, 2010, appellant filed a post-trial motion. On June 14, 2010, this court denied appellant’s motion. On June 21, 2010, appellant filed a notice of appeal to the Pennsylvania Superior Court. On July 12, 2010, this court issued an order pursuant to Pa.R.A.P. 1925(b) compelling appellant to file a statement of errors complained of on appeal. On July 19, 2010, appellant filed his 1925(b) statement, alleging the following:

“Did the trial court err as a matter of law, and abuse its discretion, in failing to determine that the defendant/ appellee City of Philadelphia is subject to liability pursuant to the ‘utility’ exception of the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8542(b)(5), where (1) the city owns the sewer line system at issue, (2) a defect in a lateral portion of the sewer line system caused a dangerous cave-in on a street located within the city, (3) the city had notice of the dangerous cave-in as of June 21, 2005, (4) the city failed to barricade or fill the dangerous cave-in prior to plaintiff’s incident of July 7, 2005, (5) the city allegedly notified the local homeowner to fix both the defective lateral and cave-in, but never followed up after the 10-day imposed deadline, (i.e., by July 1, 2005), to ensure that repairs were made to either the lateral or street, (6) the city had no confirmation that the homeowner received said notice, (7) the city has an interest in ensuring the safety of its sewer system and streets located in the vicinity, (8) the Pennsylvania Department of Transportation (PennDOT) has no responsibility for repairing cave-ins on state highways located within city limits which are caused by defective underground utilities, and (9) the city never requested the PennDOT to take any remedial action, or followed up with PennDOT to determine if they had taken such action?” Appellant’s statement of errors complained of on appeal.

BACKGROUND:

This court found that, on July 7, 2005, at approximately 1 p.m., appellant was operating his minibike adjacent to the curb along the outermost lane of northbound Roosevelt Boulevard in the City of Philadelphia, between 7th and 6th Streets. Roosevelt Boulevard is a state highway located within appellee’s city limits.

Appellant was riding less than 12 inches from the curb to his right when the front tire of his minibike struck and got caught in an unmarked hole on the street in front of the property located at 630 Roosevelt Boulevard. The minibike flipped over, and appellant was thrown to the street. He sustained a pilón fracture to his right ankle which required a surgical open reduction and internal fixation, and the insertion of permanent hardware.

Charles Cooper was employed as a sewer maintenance crew chief II for appellee’s Water Department on the date of appellant’s incident. He supervised the work of employees in that division. On June 21, 2005, approximately two and one-half weeks prior to the incident, the city Water Department received notice that there was a “cave-in” on the street at 630 Roosevelt Boulevard. The information was entered into a computer system and onto a customer information display form. A city customer service inspector went to the scene and found a “cavity” at the curb side of the main sewer in that location. The matter was referred to the sewer maintenance division. This referenced “cavity” is the aforementioned hole in the street that caused appellant’s minibike to flip.

On June 21,2005, Charles Cooper went to the site and conducted a dye test which revealed a defective lateral at the property located at 632 Roosevelt Boulevard. He determined that dirt and water were leaking from the lateral, and that the cavity on the street had been caused by this defect. Information regarding the dye test and defective lateral were recorded on a sewer maintenance sewer ticket that was signed by Charles Cooper. A sewer lateral is the pipe connection from an individual home to the main sewer line. The main sewer line is owned by appellee. A homeowner owns the sewer lateral, and bears the responsibility to repair a defective lateral line and make repairs to a street from any resultant damage.

According to the sewer maintenance sewer ticket, a notice regarding the defective lateral was served on the homeowner at 632 Roosevelt Boulevard. The notice consisted of a written document that was allegedly placed in the homeowner’s mailbox. The written notice was prepared and served by John Spence, sewer maintenance crew chief I, who was present at the scene with Mr. Cooper. The City has no other record or copy of the notice. The notice instructed the homeowner at 632 Roosevelt Boulevard to obtain a registered plumber to excavate and repair the lateral within 10 days (i.e., by July 1,2005, which was one week prior to the incident). No barricade was left on top of the cavity site.

Mr. Cooper entered information regarding the dye test and notice to the homeowner at 632 Roosevelt Boulevard into the computer system, and onto the Philadelphia Water Department Customer Information display form. He also contacted someone at the PennDOT regarding the street cavity, but he could not recall the identity of that individual.

Charles Cooper never returned to the site after June 21, 2005. Mr. Cooper did not engage in any follow-up communication after June 21, 2005 with the homeowner at 632 Roosevelt Boulevard, the Streets Department, the Water Department, or anyone at PennDOT to determine if the sewer lateral defect or street cavity had been repaired within the 10 days. He never requested anyone at PennDOT to repair the cavity at 632 Roosevelt Boulevard.

On the date of appellant’s incident, Stephen Weaver was employed as a highway construction engineer for appellee’s highway division of the Streets Department. He determined that the Streets Department had not been notified about the hole in the street at 630 Roosevelt Boulevard and that the Streets Department has no records to indicate that they were notified about the hole in the street. According to Mr. Weaver, if the Streets Department discovers a hole in the street and suspects that it has been caused by an underground utility, then they will notify the relevant utility to investigate and determine if the hole was caused by a defect in the utility. If the hole was caused by a defect in the utility, then that utility would repair the hole and fill it back to ground level as a temporary fix to make it safe. Additionally, if the Water Department determines that a hole in a street was not caused by a defect in the utility, then the Water Department will refer the matter to either the Streets Department or PennDOT.

On the date of appellant’s incident, Dave Betzner was employed as a construction inspector for Pennoni Associates, an engineering consulting company that provides services to PennDOT. His duties included inspecting state highways and roads within the City of Philadelphia, and investigating complaints regarding roadway conditions. On June 21,2005, during the course of his daily drive-by inspections of Roosevelt Boulevard, he observed a hole in the street along the curb at 630 Roosevelt Boulevard in Philadelphia. A cone with the letters “PGW” stenciled on it was located at the hole. He determined that the hole was not a pothole, but rather a “cave-in.” After determining from Philadelphia Gas Works (PGW) that PGW was not doing work at the site, Mr. Betzner notified appellee’s Water Department of the cave-in..

On June 23,2005, Charles Cooper notified Mr. Betzner by phone that he determined that a defective lateral caused the cave in at 630 Roosevelt Boulevard, and that a notice was provided to the responsible homeowner to make repairs. Mr. Betzner recorded information about the cave-in he observed on June 21, 2005 and the June 23, 2005 phone call from Mr. Cooper on a handwritten log of his daily inspection notes. Mr. Betzner did not have any further communications with Mr. Cooper after June 23, 2005.

Steve Niknam was employed as an assistant highway maintenance manager for PennDOT on the date of plaintiff’s incident. His duties included supervising state highway maintenance activities. On June 21,2005, Dave Betzner notified Mr. Niknam that he inspected a cave-in on the street at 630 Roosevelt Boulevard, and that he had notified Mr. Cooper of the cave-in. According to Mr. Niknam, PennDOT does not make repairs to holes on state highways, located within the City of Philadelphia, that are caused by underground utilities including water pipes, sewer lines, and laterals. If PennDOT becomes aware of a hole, cavity, or sinkhole on a state highway within the City of Philadelphia resulting from a defective underground utility, then PennDOT will instruct the city to correct the problem, or to contact the appropriate utility company to take such action. If PennDOT becomes aware of a hole, cavity, or sinkhole on a state highway within the City of Philadelphia resulting from a defective sewer lateral owned by a property owner, then PennDOT will not take any measures to deal with the homeowner after they report the hole to the city. According to Mr. Niknam, a homeowner has a responsibility to hire a plumber to repair a defective lateral, and to repair a resulting hole in the street by backfilling it to street level as long as it is safe.

The parties agreed to submit the issue of liability to this court. Specifically, this court decided whether appellee was subject to liability pursuant to the “utility exception” and/or the “streets exception” of the Political Subdivision Tort Claims Act. The parties reached an agreement as to damages, which is dependent upon the decision of this court and/or the appellate court.

APPELLEE IS NOT LIABLE UNDER THE “UTILITY” EXCEPTION OF 42 PA.C.S. §8542(B)(5)

Appellee is not liable under the “utility” exception of the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8542(b)(5) as it was not responsible for the repair of the defective sewer lateral and ensuing cave-in. The pertinent exception is as follows:

“The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: (5) a dangerous condition of the facilities of steam, sewer, water, gas, or electric systems owned by the local agency and located within rights-of-way, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.” 42 Pa.C.S. §8542(b)(5).

If the cave-in had been caused by a defective sewer main, or if the roadway had been one other than a state highway, it is conceivable that appellee would have been liable under this exception. However, upon review of the joint stipulated facts, appellee is not an appropriate defendant in this case and appellant’s claim for negligence must fail.

To ascribe negligence to a named party, the defendant must owe a duty to the plaintiff and be in breach of that duty. Merlini v. Gallitzin Water Authority, 602 Pa. 346, 980 A.2d 502 (2009). In the case sub judice, appellee owes no duty to the appellant; appellant has not met his burden of proof that appellee is responsible for the repair of the defective sewer lateral or the repair of a state highway.

The parties agreed, as is made clear by the joint stipulation of facts, that the cave-in was caused by a sewer lateral, and not a sewer main. They likewise agree that a homeowner is responsible for the repair of a sewer lateral and the resultant damage to a street. Appellant has not shown that there is any further duty on the part of appellee than to notify the homeowner of the problem, which appellee did by way of written notice to the homeowner. This court simply cannot discern how, based on this set of facts, there is a disputable issue as to who may have owed a duty to appellant.

Moreover, the parties agreed that Roosevelt Boulevard is a state highway. This court notes that such a status automatically imputes liability onto the Commonwealth of Pennsylvania; appellee is not responsible for the maintenance, inspection, or repair of a state highway. This court also notes that appellee is not liable for the condition of a street once that street is adopted as a state highway. See Hubbard v. PennDOT, 660 A.2d 201 (Pa. Commw. 1995). Although appellant argued that PennDOT does not make repairs to its highways within the limits of the City of Philadelphia, he has failed to show how that is true in the face of the foregoing law.

For the abovementioned reasons, this court respectfully requests that its order dated June 14, 2010, which denied appellant’s motion for post-trial relief, be affirmed.

      . Upon discussing the case before this court prior to trial, the parties submitted a joint stipulation of facts. Accordingly, this court’s findings of fact are not in dispute.


author: WALLACH MILLER, J,

text:
    Waldron v. Martini

      C.P. of Monroe County,
    no. 3650 Civil 2009.

      Brett J. Riegel, for plaintiffs.

      Vance E. Meixsell, for defendants.
    July 2, 2010
   WALLACH MILLER, J,

In December 2007, several minors, including defendant Joel Martini, allegedly shot paintballs at the plaintiffs David A. Waldron and Jennifer L. McElwain’s house causing damage. Plaintiffs subsequently filed a complaint against numerous defendants, including Joel and his parents, defendants Joseph P. Martini and Denna J. Martini (collectively with Joel defendants) on April 17,2009. This court sustained preliminary objections to plaintiffs’ complaint on September 8, 2009. This court again sustained preliminary objections to plaintiffs’ first amended complaint on January 4, 2010. Plaintiffs filed this second amended complaint on February 2, 2010.

Defendants again raise preliminary objections on the following grounds: (1) failure to plead material facts and aver damages with the specificity required by Pennsylvania Rules of Civil Procedure 1019(a) and (f); (2) a demurrer to plaintiffs’ request for punitive damages; (3) a demurrer to plaintiffs’ request for legal fees as part of punitive damages; (4) a demurrer for failing to plead damages in accordance with Pa.R.C.P. 1019(a) and (f); (5) a demurrer to claims against parents in Counts I and III and; (6) that plaintiffs’ claim for statutory liability of parents improperly requests damages for negligent actions of Joel and therefore must be struck under Pa.R.C.P. 1028(a)(2). Additionally, defendants seek sanctions under 1023.1.

Pa.R.C.P. 1028(a)(2) permits a party to file preliminary objections to strike impertinent or scandalous matter included in a pleading. Our Pennsylvania Commonwealth Court held in Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998) that scandalous and impertinent allegations are immaterial and inappropriate to the cause of action. Additionally, Pa.R.C.P. 1028(a)(4) permits preliminary objections in the form of a demurrer in order to strike insufficient pleadings. Pa.R.C.P. A demurrer asserts that a complaint fails to state a claim upon which relief can be granted. Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83 (1991). A demurrer by a defendant admits all relevant facts sufficiently pleaded in the complaint and all inferences fairly deducible. Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa. Super. 2008). A demurrer does not admit conclusions of law or unjustified inferences. Id. Preliminary objections may only be granted in cases that are free from doubt. McCullough v. Clark, 784 A.2d 156, 157 (Pa. Super. 2001).

From the onset, we will strike paragraph 13 of the second amended complaint as being irrelevant to plaintiffs’ cause of action.

Defendants’ first preliminary obj ection argues that the second amended complaint must be struck for failing to plead alleged damages in conformity with Pa.R.C.P. 1019(a) and 1019(f). Defendants’ fourth preliminary objection also raises a demurrer on identical grounds. In particular, defendants argue that the second amended complaint fails to plead special damage suffered by plaintiffs with the specificity required by Pa.R.C.P. 1019(f). Pa.R.C.P. 1019 provides in pertinent part:

“(a) Material facts on which a cause of action is based stated in concise and summary ....
“(f) Averments of time, place, and items of special damages shall be specifically stated.” Pa.R.C.P. 1019(a); (f).

General damages are those that are of the ordinary consequence for the wrong done. Hooker v. State Farm Fire and Casualty Co., 880 A.2d 70, 77 (Pa. Commw. 2005). In contrast, special damages are those not of the usual and ordinary consequences. Id. We find that the second amended complaint does not ask for damages that are outside of the Usual and ordinary. Plaintiffs have therefore not requested special damages. Objections relating to Pa.R.C.P. 1019(f) are thus inapplicable. Accepting all facts as well-pled, we also find it sufficient that plaintiffs’ have pled that their property has suffered harm as a result of defendants’ actions. We find plaintiffs have pled the material facts on which their cause is based in conformity with Pa.R.C.P 1019(a). We therefore dismiss these preliminary objections.

Defendants raise a preliminary objection in the form of a demurrer to plaintiffs’ request for punitive damages against Joel. In Pennsylvania, punitive damages may be awarded for “conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Hutchison ex rel. Hutchison v. Luddy, 582 Pa. 114, 121, 870 A.2d 766, 770 (2005) (quoting Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747 (1984)). Our Pennsylvania Supreme Court held that reckless indifference is shown when the actor’s conduct creates a risk of physical harm substantially greater than that which is necessary to make his conduct negligent. Id. at 122, 870 A.2d at 771. Plaintiffs here allege that Joel showed recklessness and gross negligence with disregard to the safety of plaintiffs and the value of plaintiffs’ property. As noted, gross negligence is insufficient grounds to grant punitive damages. Accepting all well-pled facts, we find that the second amended complaint alleges no facts demonstrating a physical risk to plaintiffs. We find that plaintiffs have not sufficiently pled evil motive or reckless indifference to the rights of others. We therefore sustain defendants’ demurrer and strike plaintiffs’ request for punitive damages. Having struck the plaintiffs’ request for punitive damages, we likewise strike plaintiffs’ requests for attorneys’ fees.

Defendants’ fifth preliminary objection in the form of a demurrer to Counts I and III argues that the adult defendants cannot be held liable for the torts of their child. Defendants support this argument alleging that parents cannot be held liable for their child’s intentional torts as they did not participate. Defendants also argue that parents cannot be held negligent for the actions of their minor children under the common law. We first note that Count I of plaintiffs’ second amended complaint contains no claims against parents. Turning to Count III, we find that defendants have misconstrued plaintiffs’ second amended complaint. Whether the children committed an intentional tort or were negligent is irrelevant, as Count III against parents is based on a theory of negligent supervision.

Under Pennsylvania law a parent may be found liable for the acts of their child where their own negligence makes injury possible. Condel v. Savo, 350 Pa. 350, 352, 39 A.2d 51, 52 (1944). Our Supreme Court held that a parent’s duty “arises when a parent at the relevant time knows or should know of the need to exercise parental control and has the ability and opportunity to do so.” K.H. v. J.R., 573 Pa. 481, 498, 826 A.2d 863, 874 (2003). Our Superior Court held that if the injury ought to have been foreseen by the parents, their negligence is the proximate cause of the injury. J.H. ex rel. Hoffman v. Pellak, 764 A.2d 64, 66 (Pa. Super. 2000). Here, plaintiffs have argued that the parents had a duty to control their children as they should have known the paintballs could harm others or their property. Plaintiffs argue that the damage that resulted was foreseeable and therefore the proximate cause of the harm. Accepting all facts as true, we find that facts are sufficiently pled to overcome this objection. We therefore dismiss defendants fifth preliminary objection.

Defendants’ final preliminary objection seeks to strike the language seeking negligent liability under 23 Pa.C.S. §5501 et seq. for failing to conform with law. Under Pennsylvania law, parents may be held statutorily liable for the tortious acts of their children. 23 Pa.C.S. §5502. However, the statute giving rise to parental liability defines “tortious acts” as a willful tortious act resulting in injury.” 23 Pa.C.S. §f5501. As explained by our sister court in the Butler County, a willful tortious act is something done willfully, intentionally or on purpose. Kelly v. Seachrist, 18 D.&C.4th 514, 516 (1993). Paragraph 43 of the second amended complaint seeks 23 Pa.C.S. §5501 et seq. liability of parents for Joel’s torts “whether intentional or negligent.” As 23 Pa.C.S. §5501 applies only to intentional torts, we find that language seeking liability for negligence fails to conform with law. As such we shall sustain defendants’ sixth preliminary objection and strike the word “negligent”.

We briefly turn to plaintiffs’ preliminary objections to Martini’s preliminary objections. Plaintiffs argue that defendants Martini did not comply with Monroe County Rule of Civil Procedure 1028. Under Monroe County Rule of Civil Procedure 1028, at the time of filing preliminary objections “the moving party shall also file praecipe to place the matter on the first argument list occurring more than 30 days following the filing the motion.” The moving party shall also file a brief in support of such motion within 1 O' days. Id. Failure to comply may be sufficient basis for the court to deny the motion. However, the Monroe Rules of Local Procedure merely create an optional basis for the court to deny a motion. As we find that plaintiffs did not suffer prejudice as a result of defendants’ actions, we will dismiss plaintiffs’ preliminary objections.

Finally, we dismiss defendants’ request for sanctions as this court would be overwhelmed if sanctions were granted for filing an inartfully drafted complaint. We therefore enter the following order.

ORDER

And now, July 2,2010, defendants shall file a responsive pleading to plaintiffs’ second amended complaint as modified by the foregoing opinion.


author: BOCCABELLA, J.,

text:
    Commonwealth v. Bowers

      C.P. of Berks County,
    no. 3629/09.

      Colin R. Boyer, assistant district attorney, and Alisa R. Hobart, assistant district attorney, for Commonwealth.

      Eric J. Taylor, for defendant.
    August 9, 2010
   BOCCABELLA, J.,

On March 12, 2010, this court accepted Jamar Bower’s (defendant) open plea of guilty to the charge of driving under the influence. On the same day, prior to sentencing, this court determined that since the defendant was found not guilty in a case where he had previously accepted accelerated rehabilitative disposition, the defendant was to be sentenced as a first-time offender. This court sentenced the defendant to be committed to the Berks County Jail System for a period of not less than 48 consecutive hours nor more than six months and to pay a fine of $500. Previously, in docket number 5115-08, the defendant had been placed on the ARD program for DUI on January 21, 2009 for 12 months. However, on November 20, 2009, the defendant was tried on the DUI charges on docket number 5115-08, and this court granted the defendant’s motion for judgment on acquittal on the two DUI counts.

OnApril 8,2010, the Commonwealth, by and through counsel Alisa R. Hobart, Esquire, filed a notice of appeal to the Superior Court of Pennsylvania. OnApril 9,2010, this court ordered the Commonwealth as appellant to file a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925. On April 26, 2010, the Commonwealth filed its concise statement. The following issue has been set forth for appellate review:

(1) Whether the trial court imposed an illegal sentence by failing to sentence the defendant to the mandatory 30-day incarceration period for driving under the influence of alcohol, 75 Pa.C.S. §3802 as a second offense, where Bowers did not successfully complete the ARD placement for his first DUI offense. See Commonwealth v. Beeker, 366 Pa. Super. 54, 530 A.2d 888 (1987) (en banc).

FACTUAL SUMMARY

On September 5, 2008, the defendant was charged with two counts of DUI and one count of careless driving on docket number 5115/08. The defendant was eventually placed on the ARD program for 12 months on January 21, 2009. On June 22,2009, on this docket, 3629/09, a second criminal complaint was filed against the defendant, charging him with two counts of DUI and one count of maximum speed limits. On August 5,2009, the Commonwealth filed a motion for the defendant to show cause as to why he should not be removed from the ARD program on docket number 5115/08. In a hearing that took place on October 14, 2009, the Commonwealth sought to withdraw its petition to remove the defendant from ARD. However, the defendant requested that this court withdraw his acceptance from ARD, which this court granted, thereby terminating the defendant from ARD and authorizing the Commonwealth to proceed on the DUI charges. On November 20,2009, the defendant was tried on the first DUI charges on docket number 5115/08, via a bench trial. This court granted the defendant’s motion for judgment of acquittal on the two DUI counts and found the defendant not guilty of careless driving. There was no appeal filed.

On the basis on being acquitted of the first DUI charges on docket number 5115/08, the defendant, through his counsel, Eric J. Taylor, Esquire, filed a motion to amend the grading of the information on this docket to reflect that this was the defendant’s first DUI, rather than his second. On March 3, 2010, this court denied the defendant’s motion to amend the grading of the information. On March 12,2010, the defendant pled guilty in an open plea on this docket. Before sentencing, this court held a hearing to determine whether the defendant was to be sentenced as a first- or second-time offender. Defense counsel argued that somebody who accepts ARD, then withdraws his acceptance of ARD (as approved and granted by the court), ultimately being acquitted, cannot have that “acceptance” be used against him later on. The Commonwealth, citing Commonwealth v. Becker, 366 Pa. Super. 54, 530 A.2d 888 (1987) (en banc), argued that a defendant who had previously accepted ARD with respect to a prior DUI but had not successfully completed the ARD program, should still be sentenced as a second-time offender for the subsequent offense. This court agreed with the defendant and found that due to the defendant being acquitted of the earlier DUI charges (on docket number 5115/08), his acceptance of ARD should not be used against him on subsequent charges. In spite of Becker, such a result is absurd and violative of due process. Indeed, it denies a basic premise of our criminal justice system, the presumption of innocence, which must be viewed as a basic tenet of due process of law. Thus, this court sentenced the defendant as a first-time offender and sentenced the defendant to be committed to the Berks County jail system for a period of not less than 48 consecutive hours nor more than six months and to pay a fine of $500.

DISCUSSION

The Commonwealth’s appeal presents the sole issue of whether the court sentenced the defendant to an illegal sentence. The Commonwealth asserts that the defendant should be sentenced as a second-time offender in a subsequent case once he accepted ARD. (The issue presented on appeal frames itself as the defendant having been unsuccessful in ARD. The defendant’s success or failure in that program should be of no consequence. The issue is inartfully presented.)

A claim that the trial court imposed an illegal sentence is a matter of law and, accordingly, the Superior Court’s scope of review is plenary. Commonwealth v. Evans, 901 A.2d 528, 536 (Pa. Super. 2006).

This court realizes that the pronouncements of the Superior Court have ruled contra to the result which this court reaches in the case at bar. However, those cases are distinguishable on their facts. In the case at bar, this court granted the withdrawal of the defendant’s ARD. The defendant was then acquitted after trial. Is said acquittal complete or provisional? There is no logical or rational reason as to how an opposite result could be reconciled with the presumption of innocence or with this court’s sworn duty to uphold the constitutions of the Commonwealth and of the United States. The result of this case, while not in conformity with some case law (depending on interpretation) is so fundamentally fair that this court willingly adopts same.

In this discussion, there is value to looking at the origins of the ARD program. It was a product of the Supreme Court of Pennsylvania as set forth in the Rules of Criminal Procedure in 1973 (former Rules of Criminal Procedure 175-185). Pa.R.Crim.P. 175-185 (1973) (current version at Pa.R.Crim.P. 310-320). The program was not an invention of the legislature. It was fashioned as “a diversionary program,” one designed by the court to allow prosecutors to ferret out non-violent, less serious cases from a system that was bulging at the seams.

The Rules of Criminal Procedure provides in pertinent part:

“Hearing on a motion for accelerated rehabilitative disposition shall be in open court in the presence of the defendant, his attorney, the attorney for the Commonwealth, and any victims who attend. At such hearing, the defendant shall be asked on the record whether he understands that:
“(1) Acceptance into and satisfactory completion of the accelerated rehabilitative disposition program offers him an opportunity to earn a dismissal of the charges pending against him;____” Former Pa.R.Crim.P. 177(1) (1973). (emphasis supplied)

The comment in Former Rule 177 describes a form of notice that had been used in Philadelphia. Former Pa.R.Crim.P. 177. This notice described what a defendant had to do to earn a dismissal of the charges and an ex-pungement of the record. Id.

The legislature got involved in 1983, when it passed a sweeping revision of the DUI provisions of the Vehicle Code, Act of December 15, 1982, no. 289, §9,1982 Pa. Laws 1268, 1277 (currently codified at 75 Pa.C.S. §3806(a)). Included in these provisions was former section 3731(e)(2), which stated that ARD would be considered a prior offense. Act of December 15, 1982, no. 289, §9, 1982 Pa. Laws 1268, 1277. In doing so, the General Assembly made the ARD program something that it was never intended to be ... a bastardized diversionary program disrespecting the rules of court as well as the presumption of innocence, one of the foundations of our system.

The promise of the court to any individual who wanted to participate in the program was (and is) a complete dismissal of the charges and an expungement of the record. That promise was compromised by the legislature and broken by the courts in allowing the legislature to discard the clear mandate of the rules of court and to modify the rules to accommodate the legislative branch. (So much for the separation of powers.) This is evident in the current Rule 312 of the Rules of Criminal Procedure, which states: “Although acceptance into an ARD program is not intended to constitute a conviction under these rules, it may be statutorily construed as a conviction for purposes of computing sentences on subsequent convictions.” Pa.R.Crim.P. 312; see also, 75 Pa.C.S. §3806(a).

There is a presumption that is apparent in the legislature’s impingement on the court’s inherent powers, although it is unrecorded. The legislature believes that the court has given the ARD participants (accepters of ARD) a pass from the responsibility of their actions. But the legislature has failed to realize that there are many diverse reasons for a defendant accepting the benefits of the program even if conviction on the underlying offense(s) may not be a foregone conclusion. Defendants do not accept ARD dispositions merely because they are guilty and want to avoid the consequences of their actions. They may be unwilling to suffer through the emotional and financial costs of maintaining their innocence by demanding the government be put to its burden of proof beyond a reasonable doubt. If the wisdom of the court, in spawning the ARD program, is defeated by an act of the General Assembly then where are the limits of the legislative body’s power to make the courts subservient to their dictates.

Every defendant in a criminal case is cloaked with the presumption of innocence. That presumption cannot be removed except by verdict or plea. The legislature has removed that “cloak of innocence” without the government being put to its constitutional burden of proof and the courts have turned the other cheek. See Comonwealth v. Pleger, 934 A.2d 715 (Pa. Super. 2007) among other cases of that ilk. Pleger seems to stand for the proposition that if a criminal defendant is notified that an adverse result will occur if he or she accepts a disposition, then there are no problems with the validity of the result even if the law changes after the notice. See id. (Pleger dealt with, inter alia, the enlargement of the look-back period for determining which prior offenses impact sentencing.)

This court realizes that the legislature had previously found that ARD could be considered a prior conviction when considering habitual offenders in the civil context of a driver license suspension. See Leonard N. Sosnov, Due Process Limits on Sentencing Power: A Critique of Pennsylvania’s Imposition of a Recidivist Mandatory Sentence Without a Prior Conviction, 32 Duq. L. Rev. 461, 462 n.12. (other citations omitted) However, this court concurs that a license is a privilege and not a right, whereas every criminal defendant is entitled to the presumption of innocence as a matter of right. See also, Commonwealth v. Krall, 290 Pa. Super. 1, 434 A.2d 99, 100 (1981) (A defendant’s admission into an ARD program does not constitute a conviction for purposes of impeachment). This court would also note that the Pennsylvania Commonwealth Court has found it permissible for a trial court to grant a licensee’s request to withdraw from the ARD program regarding a license suspension, as has been similarly done here regarding the criminal conduct aspect of a DUI. See Kolva v. PennDOT, 977 A.2d 1248, 1253 (Pa. Commw. 2009) and Poborski v. PennDOT, 964 A.2d 66, 70-71 (Pa. Commw. 2009).

This court presumes that a main authority in the Commonwealth’s case will lie with Becker. Becker, 366 Pa. Super. at 54, 530 A.2d 888. However, this court would posit that the criminal justice system would best be able to protect the rights of a criminal defendant, including due process of law, by following the Becker dissents written by President Judge Cirillo and Judge Del Sole. See Becker, 366 Pa. Super. at 68-78, 530 A.2d at 895-900 (Cirillo, P.J., and Del Sole, J., dissenting). President Judge Cirillo argued that if ARD has been revoked, “the defendant must now be prosecuted on the original charges, and will therefore be presumed innocent.” Id. at 72, 530 A.2d at 897. President Judge Cirillo goes on to explain that this would preserve the presumption of innocence regarding the original charges and allow the Commonwealth to charge the defendant as a second time offender only if the defendant is found guilty in the first case. Id. Judge Del Sole wrote:

“Appellee must now face trial on the charges stemming from the earlier incident. I believe that if appellee is found guilty on the charges for which he had sought ARD, he could be sentenced as a second-time offender. Appellee would then properly be receiving the harsh penalty which the legislature intended for those who repeatedly violated the statute. If however, appellee were to be found not guilty, he would not be in the unenviable position suggested by the majority of being sentenced as a second-time offender on the charges giving rise to this appeal although he had only been convicted of one violation of the statute.” Id. 11-IS, 530 A.2d at 899-900.

In light of the U.S. Supreme Court’s recent opinion in Padilla v. Kentucky, 130 S.Ct. 1473 (2010), it appears that due process requires the courts to advise defendants of the direct and the collateral consequences of their actions in court. How does one explain that an earned dismissal of charges and expungement of the record (as promised by the court at the time of placement into the program) constitute the same result for future DUI convictions (as if they had been taken to trial and proven guilty or pled guilty). How does one explain an anomaly, e.g., a square circle (a dismissal of the charges and an expungement of the record that is the equivalent of a conviction and a complete expungement of the record). The Pennsylvania Supreme Court has found that “[t]he harm ancillary to an arrest record is obvious: ‘Information denominated a record of arrest, if it becomes known, may subject an individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual’s reputation may be substantial.’” Commonwealth v. Armstrong, 495 Pa. 506, 509-10, 434 A.2d 1205, 1207 (1981) quoting Commonwealth v. Malone, 244 Pa. Super. 62, 68, 366 A.2d 584, 587-88 (1976). Does the notification of the recidivist provisions of the Vehicle Code and those mentioned in the newer rules of court negate the presumption of innocence and the promised benefit of an accused’s acceptance of the court inspired diversionary program (ARD)? This court finds that notice to a defendant that it cannot explain and that the court finds contrary to due process and the presumption of innocence does not.

For the foregoing reasons this court respectfully requests that the sentence imposed on the defendant be affirmed on appeal.

      . 75 Pa.C.S. §3802(b).

      . 75 Pa.C.S. §3802(a)(l) and (2).