author: MCINERNEY, J.,

text:
    Snitow v. Snitow

      Jason E. Powell, for plaintiff.

      Howard N. Snitow, Wesley Fenza, James H. Heller and Jennifer McHugh, for defendants.
    September 6, 2013
   MCINERNEY, J.,

Sandra Snitow (“plaintiff’) appeals from the order entered on April 2, 2013 that denied her second petition for contempt which sought to have her brother Howard Snitow (“defendant”) held in contempt for not complying with orders entered on February 18, 2011 and February 9, 2012. The order plaintiff appeals from, however, is interlocutory and not appealable as neither of the orders underlying her petition was a final, prior order. As such, plaintiff’s appeal should be quashed. In the event the court does not quash plaintiff’s appeal, this court’s April 2, 2013 order should be affirmed because plaintiff sought to have defendant held in contempt for failing to do something that was not clearly required by the underlying orders.

I. BACKGROUND

On December 1,2010, plaintiff commenced the instant action by filing a complaint and a petition for a preliminary injunction against defendant and Level Four Partners, L.P. and Level Four Management, Inc. (collectively, the “companies”). In her complaint, plaintiff alleged defendant “engaged in a pattern of fraud, waste, breach of fiduciary duty, and other willful misconduct,” which drained and depleted the companies’ assets. (Compl. ¶ 1.) Among other relief, plaintiff requested that the court order an accounting of the companies’ assets, expenses, and financial transactions. (Compl. p. 28.)

On February 18, 2011, the late Honorable Albert Sheppard, Jr. entered an order directing that a forensic accounting be performed by Morris Schwalb of GPCD Partners, LLC and that defendant “cooperate fully in all respects with the accountant” and “provide Mr. Schwalb with full and complete access to the financial and business records (including bank accounts and tax records) [for the Companies] for the time period between January 1, 2004 and February 14, 2011.” (Order, Feb. 18, 2011.) On June 29, 2011, plaintiff filed a petition to hold defendant in contempt for failing to comply with the Judge Sheppard’s February 18, 2011 order by not “producing] records and information requested by Mr. Schwalb, despite being given numerous opportunities to do so.” (Pl.’s (1st) pet. for contempt ¶ 1.) Therein, plaintiff stated that “[although as early as May 2, 2011, [Defendant] was given a detailed list of specific documents to produce..., he has [] failed to produce them and has not [] given Mr. Schwalb a commitment for whether and when he will produce them.” (Pl.’s (1st) pet. for contempt ¶ 1.)

On February 9, 2012, this court issued an order disposing of plaintiff’s petition for contempt. In relevant part, the order provided:

(1) [Defendant] shall fully comply with all of the terms and conditions of [Judge Sheppard’s] Order of February 18th, 2011;
(2) Within five (5) days of entry of this Order, [Defendant] shall fully cooperate with the accounting being performed by Morris Schwalb...by providing Mr. Schwalb with access to and/or copies of:
(a) all bank records and bank statements [for the Companies];
(b) any other records or documents which Mr. Schwalb has requested, to date; and
(c) written responses to all requests for information which Mr. Schwalb has made, to date.
(3) Henceforth, [Defendant] shall fully cooperate with the accounting being performed by Mr. Schwalb, by providing Mr. Schwalb with any documents, records, or information which Mr. Schwalb shall request within no more than ten (10) days following receipt of such request.

(Order, Feb. 9, 2012.)

On June 12, 2012, plaintiff filed her second petition to hold defendant in contempt, alleging failure to comply with the February 18, 2011 and February 9, 2012 orders. Therein, plaintiff again stated the petition followed defendant’s “continued willful failure to produce records and information requested by Mr. Schwalb, despite being given numerous opportunities to do so.” (Pl.’s (2nd) pet. for contempt ¶ 1.) Plaintiff continued:

Almost sixteen (16) months after Judge Sheppard’s initial Order was issued, and four (4) months after this Honorable Court’s Order was issued, Mr. Schwalb is still unable to complete his forensic [accounting due to Mr. Snitow’s obstruction and willful refusal to provide him with financial, business, and tax records and information ordered by the Court relating to [the Companies].

(Pl.’s (2nd) pet. for contempt ¶ 1.) Plaintiff cited the June 6, 2012 letter from Mr. Schwalb to defendant as the documents and information Mr. Schwalb requested, but defendant failed to provide, and noted Mr. Schwalb had made numerous other written and oral requests for the production of various documents and information between February 9, 2012 and June 6, 2012. (Pl.’s (2nd) pet. for contempt ¶ 5.)

On June 14,2012, this court issued a rule to show cause, and set a response date of July 3,2012 and a hearing date of July 24, 2012 for plaintiff’s second petition for contempt. In accordance with this court’s order, defendant filed a response on July 3, 2012. Therein, defendant stated:

Prior to the date of Morris Schwalb’s June 6, 2012 letter, which was the catalyst for the current Petition for Contempt, the vast majority of the documents requested in that letter had been produced. In fact, they have been in Mr. Schwalb’s possession for nearly three months, since March 15, 2012. Mr. Snitow has made a number of productions to Mr. Schwalb, consisting of boxes and boxes of records. Apparently, despite billing hundreds of hours, Mr. Schwalb has not been able to locate and/or understand the significance of a number of the documents he believes he needs to finalize his accounting. In this regard, Mr. Snitow has offered to go to Mr. Schwalb’s office and identify the documents referenced in the June 6 letter.
Contrary to Mr. Schwalb’s letter and contrary to the Motion for sanctions, Mr. Snitow has not failed to cooperate with Mr. Schwalb, nor is he in violation of any Court Order.
As a result of the foregoing, there was no basis for Mr. Schwalb’s June 6 letter, no basis for Plaintiff’s Petition, and no sanctions are warranted. Plaintiffs Petition should be denied.

(Def.’s answer to pl.’s (2nd) pet. for contempt pp. 1-2.)

The hearing was continued to August 3,2012, at which time some aspects of the petition were disposed of and the conclusion of the hearing on plaintiff’s second petition for contempt was scheduled for September 10, 2012. For various reasons, the conclusion of the hearing was rescheduled a number of times, ultimately being held on April 1st through April 2nd, 2013.

On March 8,2013, prior to the conclusion of the hearing, plaintiff filed a reply to defendant’s answer addressing the remaining aspects of plaintiff’s second petition for contempt. Therein, plaintiff averred defendant “dwells upon the rubric that he does not keep records other than bank statements [and,] [therefore, he is not in contempt for failing to produce records because he does not have records.” (Pl.’s reply p. 2.) Plaintiff, however, in turn argued: “Mr. Snitow should have provided, at a minimum, the following records. *** If he did not have records in the ordinary course of business at that time, he certainly had and has the information with which to prepare the following:... (e) Federal, state and, if appropriate, City of Philadelphia tax returns....” (Pl.’s reply ¶¶ 2-3.) To support her argument, plaintiff cited to a letter from GPCD Partners, LLC to this court as follows:

[Defendant] stated to the court that the accounting records consisted mainly of the bank statements. This is not an accepted method for recording accounting transactions; however, we worked under that premise. Upon our request for tax returns, we were informed that except for the personal return for Mildred and Melvel Snitow (the parents) for year 2004 there were no tax returns that had been completed. Additionally, we were informed there were no financial statements for either [of the Companies]. This had a negative effect on the audit, in that we were unable to compare our information with any reference points.

(Pl.’s Reply p. 3.)

Following the conclusion of the hearing, plaintiff also submitted a “Hearing Memorandum of Law in Support of Plaintiff’s Second Petition for Contempt.” In this memorandum, plaintiff argued the evidence presented at the contempt hearing or April 1st and April 2nd, 2013 was sufficient to hold defendant in contempt for violating the February 18, 2011 and February 9, 2012 orders. Specifically, plaintiff pointed to the fact that Mr. Schwalb testified that defendant did not supply him with tax returns for the companies for years 2004 through 2010. (Pl.’s hearing mem. p. 3.) And regarding defendant’s argument that he was not in contempt because he had not prepared tax returns to have given to the forensic accountant, plaintiff contended:

Counsel for [Defendant] continues to plead that he is not in contempt because he just does not have any tax returns. Not only is this argument ludicrous, but it insults the intelligence of this tribunal. Counsel’s pleas should fall on deaf ears because Judge Sheppard in 2011, restated by this [c]ourtin2012, ordered a forensic accounting and specifically ordered that Defendant produce tax records in order to accomplish that precisely defined objective to wit:... it is Ordered as follows: (1) a forensic accounting shall be performed of the financial and business records, including bank accounts and tax records, of [the Companies] with respect to their financial affairs and transactions between January 1, 2004 and February 14, 2011.” There is nothing vague or ambiguous about the Court Order. For example, the order might have read “including bank accounts and tax records if available”. Had the order been so written, [Defendant] would not have been in contempt based on applicable case law.

(Pl.’s hearing mem. pp. 2-3.)

By order dated April 2, 2013 and docketed April 3, 2013, this court denied the remaining aspects of the petition, making no further finding of contempt. In that order, this court noted that the order or orders forming the basis for civil contempt must be strictly construed and any ambiguity construed in favor of the respondent, citing C.R. v. Travelers, 626 A.2d 588 (Pa. Super. Ct. 1993). This court then found “[i]n terms of contempt for violating the February 18th, 2011 and/or the Februaiy 9th, 2012 order(s), the issue of not preparing tax returns fell within the ambit of the rule that ‘[a]ny ambiguity or omission in the order forming the basis for the civil contempt proceeding must be construed in favor of the [respondent].’ C.R., supra.” (Order, Apr. 2, 2013.) This court then concluded a finding of contempt on this issue would not have been appropriate in this case “as it was at best ambiguous whether either order required [Defendant] to prepare tax returns for the forensic accountant.” (Order, Apr. 2, 2013.)

On May 1, 2013, plaintiff filed a motion for reconsideration of the April 2nd order. Therein, plaintiff argued because the prior orders commanded defendant to fully cooperate with Mr. Schwalb and provide him with full and complete access to the companies’ financial and business records for the time in question, defendant was in contempt for failing to prepare and then provide Mr. Schwalb with the “specific tax returns, spelled out by form number and years[,]” that he requested by letters dated May 2, 2011 and May 31, 2011. (PL’s mot. for recons, pp. 2-3.) By order dated May 2, 2013, this court denied plaintiff’s motion for reconsideration.

On May 3, 2013, plaintiff filed a notice of appeal from the April 2nd order. This court ordered plaintiff to file a Pa. R. App. P. 1925(b) statement and plaintiff timely complied, making the following complaints of error:

1. The trial court incorrectly construed its own orders entered on February 18, 2011 and February 9, 2012, in that:
a) The order entered on February 18,2011 required that Howard Snitow “shall cooperate fully in all respects with the accountant, Morris Schwalb, appointed by the court to perform the forensic accounting” (emphasis added); and
The uncontroverted evidence was that defendant failed to fully cooperate with Mr. Schwalb.
b) The Order entered on February 18, 2011 required that defendant “shall provide Mr. Schwalb with full and complete access to the financial and business records (including bank accounts and tax records) of the Partnership and the Corporation [referring to Level Four Partners, L.P. and Level Four Management, Inc.] with respect to their financial affairs and transactions between January 1, 2004 and February 14, 2011” (emphasis added), but defendant continued to withhold access to his financial and business records from Mr. Schwalb.
Defendant continued to withhold those records. As a result of his non-compliance, plaintiff filed a petition for contempt that resulted in a second order requiring compliance with the first order. Defendant refused to produce tax records despite having the information with which to prepare those records;
c) The Order entered on February 9,' 2012 required that “(2) within five (5) days of entry of this Order, Respondent Howard N. Snitow shall fully cooperate with the accounting being performed by Morris Schwalb, CFE, OFF, CPA, by providing Mr. Schwalb with access to and/or copies of:... (b) any other records or documents which Mr. Schwalb has requested to date; and (c) written responses to all requests for information which Mr. Schwalb has made, to date.”, and (3) “Henceforth, Respondent Howard N. Snitow shall fully cooperate with the accounting being performed by Mr. Schwalb, by providing Mr. Schwalb with any documents, records, or information which Mr. Schwalb shall request within no more than ten (10) days following receipt of such requests.;”
d) Plaintiff filed a second contempt petition in June 2012. The petition was not heard until April 1, 2013, when it was denied; and
e) The trial court incorrectly equated “tax records” with “tax returns,” finding that defendant was not in contempt of the February 18, 2011 order because he did not prepare any tax returns.
The overwhelming weight of the evidence was that defendant failed to comply with requirements of Paragraphs (2)(b) (c) and (3), despite having the ability to comply.
2. The trial court erroneously concluded that defendant was not in contempt of its foregoing orders despite clear and convincing evidence to the contrary.
3. The trial judge abused her discretion by failing to enforce the foregoing orders.

(PL’s 1925(b) statement^ 1-3 (emphasis original).)

II. DISCUSSION

A. Plaintiff’s appeal should be quashed because the April 2, 2013 order denying her petition for contempt is interlocutory and not immediately appealable.

In the order directing plaintiff to file a 1925(b) statement, this court also noted its opinion that the order at issue was “not a final order for appeal purposes and the instant appeal should either be withdrawn or quashed.” (Order, May 6, 2013.) Plaintiff, however, citing Chrysczanavicz v. Chrysczanavicz, 796 A.2d 366, 367 n.1 (Pa. Super. Ct. 2002), which stated “[a]n order denying a petition for contempt is appealable[,]” argued in her 1925(b) statement that:

An order denying a petition for civil contempt is appealable, and should be appealable, where the effect of denial of the petition is to obstruct plaintiff’s-petitioner’s proofs of defendant’s-respondent’s illegal conduct. Postponing appellate review until final judgment or decree is not a remedy since the information to be gathered by enforcing the injunctive orders is evidence needed to render a final judgment or decree.

(Pl.’s 1925(b) statement ¶ 4 (footnote omitted).)

“Generally, a party can appeal only after entry of a final order....” Gormley v. Edgar, 995 A.2d 1197, 1200 (Pa. Super. Ct. 2010). In terms of immediate appealability, while plaintiff is correct that that the Superior Court has stated “[a]n order denying a petition for contempt is appealable[,]” Chrysczanavicz, 796 A.2d at 367 n.1, “the following is an accurate, complete statement of the law: ‘ [t]he refusal of a lower court to enter an order holding someone in contempt may be a ‘final order,’ [and immediately appealable,] but only if the refusal is tantamount to denying to the party requesting the order relief to which that party has a right under an earlier final order.’” Schultz v. Schultz, 2013 PA Super 139, *2 (Pa. Super. Ct. 2013), quoting Commonwealth v. Guardiani, 310 A.2d 422, 424 (pa. Super. Ct. 1973) (en banc) (emphasis removed, emphasis added).

By definition, a final order is an order that (1) disposes of all claims and all parties, (2) is expressly defined as a final order by statute, or (3) is certified by the trial court as one the immediate appeal of which would facilitate resolution of the entire case. See Pa. R.A.P. 341(b). See also Schultz, 2013 PA Super 139 at *2. In this case, neither theFebruary 18,2011 order nor the February 9,2012 order was a final order under any of the three definitions listed above. Rather, in relevant part, the orders merely directed that an accounting be performed and that defendant cooperate with the accounting by providing the accountant with records, documents, and information, which is all interlocutory in nature. See, e.g., Sanders v. Seay, 447 A.2d 998, 999 (Pa. Super. Ct. 1982) (stating that “[a]n order directing an accounting is interlocutory in nature.”) Thus, as the prior orders were not final orders, the April 2, 2013 order denying plaintiff’s petition for contempt is not a final order or immediately appealable.

In Schultz, the Superior Court recently clarified its prior precedent and specifically held that “an order refusing to find an individual in contempt is appealable only where the respondent failed to comply with a prior final order.” 2013 PA Super 139 at *3. In that case, the wife appealed from an order denying a petition to hold her husband in contempt of a prior court order regarding marital property. Id. at * 1. The prior order included the following provisions:

1. From herein forward, neither party shall withdraw, transfer, dissipate, conceal, sell, remove, encumber, and/or dispose of any of the parties’ marital artwork...;
2. [Husband] shall be required to account for all artworks including the number, location, value and proceeds received for the sale thereof, if applicable, within thirty (30) days of the Order;
***
5. [Husband] shall be required to account for his severance check and bonus from Teva Pharmaceuticals dated [on] or around Dec. 4, 2010, in the amount of $315,000, which shall include but not be limited to providing any and all bank statements which trace the proceeds from their deposit into his.. .Bank Account... up to the present within thirty (30) days of this Order; [and]
6. [Husband] shall be required to account for the proceeds from the sale of the premises located at 310 Broad Street in Bethlehem, Pennsylvania, which shall include but not be limited to providing any and all bank statements which trace the proceeds from their receipt upon the sale of the property to the present within thirty (30) days of this Order[.]

Id. at * 1.

On appeal, the wife argued the lower court erred in failing to find the husband in contempt of the prior order “by ignoring uncontradicted evidence that [the husband] had willfully violated that order” by failing to account for: the proceeds from the severance and bonus pay; the proceeds from the sale of the Bethlehem real estate; and the artwork both in his possession and that which he had dissipated, transferred, concealed, removed, disposed of, and/or encumbered. Id. at *2. The wife also argued the Superior Court had jurisdiction, citing Bashman v. Bashman, 713 A.2d 673 (Pa. Super. Ct. 1998) for the proposition “that an order refusing to hold a party in contempt for violating a prior order is immediately appealable.” Schultz, 2013 PA Super 139 at *2.

In quashing the appeal, the court in Schultz examined the precedent underlying the statement in Bashman that “an order denying a petition for contempt is ipso facto appealable” and found this statement to be incomplete. Schultz, 2013 PA Super 139 at *2. Rather, the court found such orders are only final and immediately appealable “when they are entered in relation to a prior final order.” Id. at *3. The court then proceeded to examine the underlying order which the wife alleged the husband violated and found it to be “primarily related to discovery matters, and...wholly interlocutory.” Id. As such, the court also found the order denying the wife’s petition for contempt to be interlocutory and not immediately appealable, but not before clarifying Bashman and specifically holding that “an order refusing to find an individual in contempt is appealable only where the respondent failed to comply with a prior final order.” Id.

In this case, plaintiff cited Chrysczanavicz for the proposition that an order denying a petition for contempt is immediately appealable. (See Pl.’s 1925(b) statement ¶ 4 n.l.) Chrysczanavicz had cited Bashman. Schultz, however, clarified Bashman in that such orders are only immediately appealable when they are entered in relation to a prior final order. But here, neither the February 18, 2011 order nor the February 9, 2012 order was a final order. As such, the April 2, 2013 order denying plaintiff’s petition for contempt is interlocutory and not immediately appealable.

Plaintiff further argues the order should be appealable because “the effect of denial of the petition [was] to obstruct plaintiff’s-petitioner’s proofs of defendant’s-respondent’s illegal conduct” and “the information to be gathered by enforcing the [underlying orders] is evidence needed to render a final judgment or decree.” (Pl.’s 1925(b) statement ¶ 4.) As far as this court can discern, plaintiff is arguing that by not preparing and then providing the forensic accountant with the tax returns, etc. he had requested, defendant made the forensic accountant’s job harder, which in turn makes it harder for plaintiff to make her case against defendant. (See, e.g., Pl.’s 1925(b) statement ¶ 1(b) (stating “Defendant refused to produce tax records despite having the information with which to prepare those records” and “the effect of denial of the petition [was] to obstruct plaintiff’s-petitioner’s proofs of defendant’s-respondent’s illegal conduct[.]”.)

Plaintiff is essentially equating defendant’s inactions with a failure to produce discovery or failure to comply with a discovery request. However, as stated in Schultz, orders relating to discovery matters, like orders directing an accounting, are wholly interlocutoiy. See Schultz, 2013 PA Super 139, *3 (stating an order primarily related to discovery matters was wholly interlocutory), Rhodes v. USAA Cas. Ins. Co., 21 A.3d 1253, 1258 (Pa. Super. Ct. 2011) (concluding that discovery orders by and large are “not final, and are therefore unappealable.”), and Sanders v. Seay, 447 A.2d 998, 999 (Pa. Super. Ct. 1982) (stating that “[a]n order directing an accounting is interlocutory in nature.”) In sum, because neither the February 18, 2011 order nor the February 9, 2012 order was a final order, the April 2, 2013 order denying, plaintiff’s petition for contempt is interlocutory and not immediately appealable, and plaintiff’s appeal should be quashed.

C. In the event the court does not quash plaintiff’s appeal, the April 2,2013 order should be affirmed because there was no abuse of discretion in denying plaintiff’s second petition for contempt because she sought to have defendant held in contempt for failing to do something that was not clearly required by a previous order.

Essentially, plaintiff complains this court abused its discretion by not holding defendant in contempt for failing to prepare tax returns for certain years (2004 through 2010 or 11) and then turn over those tax returns to the forensic accountant because the forensic accountant had asked for those returns. (See Pi’s 1925(b) statement ¶¶ 1-3.) Plaintiff argues failing to prepare and then turn over the returns was in clear violation of:

(1) the provisions of the February 18, 2011 order that required defendant to:
• “cooperate fully in all respects with the accountant” and
• “provide Mr. Schwalb with full and complete access to the financial and business records (including bank accounts and tax records) [for the Companies] for the time period between January 1, 2004 and February 14, 2011” and
(2) the provisions of the February 9, 2012 order that required defendant to:
• “cooperate with the accounting...by providing Mr. Schwalb with access to and/or copies of...any other records or documents which Mr. Schwalb has requested to date [and] written responses to all requests for information which Mr. Schwalb has made, to date[,]” within five (5) days of entry of the order and
• “cooperate with the accounting...by providing Mr. Schwalb with any documents, records, or information which Mr. Schwalb shall request within no more than ten (10) days following receipt of such requests.”

(PL’s 1925(b) statement^ 1-2.)

“Each court is the exclusive judge of contempts against its process, and on appeal its actions will be reversed only when a plain abuse of discretion occurs.” Ricci v. Geary, 670 A.2d 190, 191 (pa. Super. Ct. 1996)(quotations omitted). An abuse of discretion occurs when the court “misapplies the law or exercises its discretion in a manner lacking reason.” Childress v. Bogosian, 12 A.3d 448, 465 (Pa. Super. Ct. 2011).

The objective of a civil contempt proceeding is remedial and judicial sanctions are employed to coerce the defendant into compliance with the court’s order.... In civil contempt cases, the complaining party has the burden of proving noncompliance with the court order by a preponderance of the evidence. To be punished for civil contempt, a party must have violated a court order. The order that forms the basis for the contempt process in civil proceedings must be definitely and strictly construed. Any ambiguity or omission in the order forming the basis for the civil contempt proceeding must be construed in favor of the [respondent]. Where the order is contradictory or the specific terms of the order have not been violated, there is no contempt.

C.R. v. Travelers, 626 A.2d 588,592 (Pa. Super. Ct. 1993) (citations omitted).

In this case, plaintiff’s arguments, while creative, do not comport with the requirement that any ambiguity or omission in the order forming the basis for the civil contempt proceeding must be construed in favor of the respondent as it is anything but clear that either order required defendant to prepare and then turn over otherwise unprepared tax returns just because the forensic accountant asked for them. In addition to not comporting with specific terms used in the orders (for example, the language calling on defendant to provide the accountant with access to or copies of records and documents clearly suggests the records and documents already existed and, therefore, could presently be accessed or copied), plaintiff’s reading of the orders also does not comport with other language used therein, including the time frames given in the February 9, 2012 order for defendant to comply with the forensic accountant’s requests that clearly suggest the records and documents already existed and just needed to be turned over.

The Februaiy 9th order gave defendant five or ten days to provide the forensic accountant with the records and documents he requested, depending on whether it was an existing request or a new request. The tax returns plaintiff complains about have since been prepared by a public accountant and filed. (See attach. 1.) It took the public accountant over two months to complete the time consuming work. (See attach. 2 and Attach 3 (invoice for work performed between June 14, 2013 and July 30, 2013 omitted).) In this court’s opinion, it is unreasonable to read the order as requiring defendant to have the same work done in five or ten days or be held in contempt.

In sum, as this court stated in its April2, 2013 order, the issue of not preparing tax returns fell within the ambit of the rule that any ambiguity or omission in the order forming the basis for the civil contempt must be construed in favor of defendant. In not preparing and then turning over otherwise unprepared tax returns, defendant did not violate any specific term of the February 18, 2011 or February 9, 2012 order, and it was at best ambiguous whether either order required defendant to do so. Accordingly, a finding of contempt on the issue would have been inappropriate; there was no abuse of discretion; and this court’s April 2, 2013 order should be affirmed.

      . While this court does not condone defendant untimely filing tax returns for the years in question, and acknowledges the returns (and the late filing) may be relevant for plaintiff in her underlying case against defendant, it was not contemptible behavior in the legal sense.

      . This is an additional basis for quashing the appeal as even if the orders had required defendant to prepare tax returns because the forensic accountant had asked for them, defendant has now complied, and the issue is now moot. See generally CR. v. Travelers, 626 A.2d at 592 (stating “[t]he objective of a civil contempt proceeding is remedial and judicial sanctions are employed to coerce the defendant into compliance with the court’s order....”).


source: Caselaw Access Project

author: WETTICK, J.,

license: Public Domain

text:
    Scrima v. UPMC Mercy

      C.P. of Allegheny County,
    No GD-11-109474

      Michael T Collis, for plaintiffs.

      Richard J. Federowicz and Rebecca J. Maziarz, for defendant.
    September 9, 2013
   WETTICK, J.,

Plaintiffs have requested documents containing information created or compiled by hospital staff relevant to the injuries sustained by the plaintiff-patient while under the hospital’s care. The request is limited to two documents identified by defendant as protected by the Peer Review Protection Act, 63 P.S. §§425.1-425.4: a timeline/chronology of events prepared by Tammy Vogel, RN, and a reeducation plan prepared by LaSalle Desmet, RN.

Plaintiffs respond that these documents were not prepared solely for purposes of peer review and contain factual information otherwise available from original sources, which circumstances obviate the Act’s protections. Thus, they are not protected by the Peer Review Protection Act.

The Act declares confidential the records and proceedings of a review committee, established for the purpose of reviewing information related to evaluating and improving patient care. The Act states:

The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however. That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings. (Emphasis added.)

63 P.S. §425.4.

The threshold question is whether the subject documents constitute the “proceedings and records of a review committee.” Some common pleas courts appear to have applied a mechanistic definition of the term “review committee.” See Short v. Pavlides, 33 Pa. D. & C.4th 118 (Phila. C.P. 1996) (concluding that only information generated by a formal committee, not by individuals, is protected). Elowever, the Superior Court has implicitly adopted a broader definition. See, e.g., Troescher v. Grody, 869 A.2d 1014, 1022 (Pa. Super. 2005) (concluding the terms “committee” and “individual” are used interchangeably under the Act, and to adopt a rigid distinction would undermine the peer review privilege).

For this reason, and because plaintiffs have not challenged this aspect of the peer review, the only question before this court is whether the two documents “are otherwise available from original sources,” which are not shielded from discovery by the Act.

Plaintiffs contend that the two documents are relevant hospital records created by hospital staff and, thus, subject to discovery. Defendant contends that these documents are protected because they were created following receipt of an incident report for purposes of improving hospital care.

Tammy Vogel was the Unit Director of the unit where plaintiff-husband was a patient.

After receiving a copy of an incident report regarding a deep tissue injury that plaintiff-husband sustained, Ms. Vogel compiled information relating to the care of the patient. Ms. Vogel reviewed the patient’s medical records and discussed his condition with several of his care providers for the purpose of considering whether to formulate a reeducation plan for the nursing staff. Although Ms. Vogel did not take notes of individual discussions with plaintiff’s care providers in the process of her ongoing review, she created and maintained a document summarizing the facts gleaned from those discussions and from other sources, including the incident report and plaintiff’s medical records (the “timeline/chronology”). Ms. Vogel subsequently asked LaSalle Desmet, RN and Skin Representative, to assist in preparing a reeducation plan for presentation to the nursing staff (the “reeducation plan”). See def.’s br. in supp. of def.’s resp. to pis.’ am. mot. to compel at 2-3.

When asked why she performed the investigation, Ms. Vogel testified at page 26 of her deposition that “it’s assumed that I review any event on my unit” with or without the direction of a supervisor. Also see Vogel affidavit ¶4 (“After receiving a copy of the incident report regarding [plaintiff’s] deep tissue injury, as Unit Director, I conducted [an investigation] which involved interviewing various nurses on my unit as well as Lori O’Shea, the wound care nurse.”).

Under the Superior Court’s most recent interpretation of the scope of the Peer Review Protection Act, the purpose underlying the creation of the documents is the most relevant consideration. See Piroli v. Lodico, 909 A.2d 846, 852-53 (Pa. Super. 2006); Dodson v. DeLeo, 872 A.2d 1237 (Pa. Super. 2005); and Troescher v. Grody, 869 A.2d at 1022.

The Peer Review Protection Act culminated from the General Assembly’s determination that “because of the expertise and level of skill required in the practice of medicine, the medical profession itself is in the best position to police its own activities.” Young v. Western Pa. Hosp., 722 A.2d 153, 156 (Pa. Super. 1998). Furthermore, as this court has noted, the honest, potentially critical evaluation of one care provider by another envisioned under the Act demands the strictest confidentiality of the proceedings to ensure the conclusions reached are not tainted by the fear of future legal repercussions. O’Neill v. McKeesport Hosp., 48 Pa. D. & C.3d 115, 121-22 (Allegheny C.P. 1987). For this reason, the General Assembly, in its effort to encourage meaningful self-criticism, has sought to shield from external inquiry the findings, evaluations, recommendations and opinions generated in the internal review process. Id.

Although the Act protects generally the work of a peer review committee, its protections do not extend to documents that are available from “original sources.” There are common pleas courts that have adopted an expansive view of the original source exception, concluding that only the recommendations for action produced by the committee are shielded from disclosure, while documents created in preparation for a review necessarily preexisted the review and, therefore, constitute separate “original sources.” See, e.g., Resnick v. Hahnemann Univ. Hosp., 28 Phila. Co. Rptr. 561, 1995 WL 1315946 (Phila. C.P. Jan. 13, 1995). However, almost every court has rejected this distinction, relying instead on the purpose underlying the document’s creation.

The “original sources” exception covers any documents created by an employee of a hospital who has no responsibility for evaluating the quality of the care and who did not prepare the documents at the request of a professional health care provider evaluating the quality of the care as part of a peer review. See Atkins v. Pottstown Memorial Med. Ctr., 634 A.2d 258 (Pa. Super. 1993). However, where the document would not have been created but for the initiation of peer review, this document should be considered derived from or part of a peer evaluation.

In the present case, the nurses who prepared and reviewed the documents testified that each was generated for the purpose of evaluating the conduct of the medical staff and, if necessary, reeducating the staff regarding future procedures. Each was derived from or part of a peer evaluation or review of staff conduct for the purpose of reeducating the staff. Even if some of the factual information contained within the subject documents is available through original sources, that alone does not render the documents discoverable. See Dodson v. DeLeo, 872 A.2d at 1244. Plaintiffs remain free to examine the staff concerning their knowledge of the circumstances surrounding plaintiff’s injuries, but they may not inquire as to what conclusions or recommendations resulted from the investigation.

In summary, there is no reason for me to depart from the prior holding and underlying reasoning in O’Neill, supra. To the contrary, the case law that has developed following O ’Neill has given less weight to when the reports were created and by whom and more weight to the reason or purpose for their creation. Thus, since the documents in question were prepared for purposes of reviewing the quality of the medical services that were provided, these documents are protected by the Peer Review Protection Act.

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

ORDER OF COURT

On this 9 day of September, 2013, it is hereby ordered that plaintiffs’ motion to compel discovery is denied.

      . There is no claim that Ms. Vogel, in undertaking to review “any event on [her] unit,” would do so for any reason other than for peer evaluation. See Vogel dep. 26: 5-24.


author: GRAY, J.,

text:
    Biersdorf & Associates, P.C. v. Horner

      C.P. of Lycoming County,
    No. 12-00,607

      Dan Biersdorf, for plaintiff

      Norman M. Lubin, for defendant.
    September 19, 2013-
   GRAY, J.,

VERDICT

This matter arises out of a fee dispute between defendant Mary Homer and her former-counsel plaintiff Biersdorf & Associates, P.C. Defendant retained plaintiff to represent her in an eminent domain action filed by the Loyalsock Township School District for the taking of her property located on Four Mile Drive, Loyalsock Township, Lycoming County, Pennsylvania (Lycoming County Tax Parcel No. 26-351-226). The court held a non-jury trial in this matter on September 16, 2013. Attorney Dan Biersdorf represented plaintiff at the time of the hearing, and he was plaintiff’s sole witness. Attorney Norman M. Lubin represented defendant at the hearing; likewise, Ms. Homer was defendant’s sole witness. Upon review of the parties’ trial memorandums and after consideration of the testimony, the court hereby enters a verdict and judgment in favor of plaintiff and against defendant in the amount of$18,750.00.

I.Findings of Fact

1. Defendant was a fee owner of real estate located on Four Mile Drive, Loyalsock Township, Lycoming County, Pennsylvania (Lycoming County Tax Parcel No. 26-351-226) (the “property”).

2. On September 10,2001, Loyalsock Township School District (the “district”) filed a declaration of taking to condemn the property (the “eminent domain” matter, proceeding, or action).

3. Initially, defendant and her family proceeded in the eminent domain matter pro se.

4. On December 4, 2002, the district filed a praecipe with the court to deposit the initial offer of $450,000.00, with the Prothonotaiy’s Office of Lycoming County.

5. On December 11, 2002, defendant and her family executed a Representation Agreement (the “agreement”) with plaintiff Biersdorf & Associates, P.C. This agreement provided that plaintiff would represent defendant and her family in the eminent domain proceeding “through any trial and evidentiary hearing before commissioners, areferee, or ajudge....” PL Ex. 1.

6. The agreement provided that plaintiff’s fee would be equal to 1/3 of the amount awarded to defendant and her family above the initial offer of $450,000.00. Id.

7. The agreement also provided that “appeals beyond the trial court stage [were] not covered by the contingent fee.” Id. Plaintiff’s appellate work rate was agreed upon as $250.00/hour. Id.

8. A one-day board of view hearing was held on October 6, 2005.

9. On March 28, 2006, the board of view filed a report in which it awarded defendant and her family damages totaling $573,000.00.

10. On April 27, 2006, plaintiff filed an appeal on behalf of defendant and her family from the board of view report.

11. Mr. Biersdorf testified that the appeal was filed upon his recommendation.

12. The prothonotary’s office incorrectly docketed the appeal to a new docket number. See pi. ex. 21.

13. On October 16, 2006, the court struck defendant’s appeal because plaintiff failed to remedy the incorrect docketing situation. See pi. exs. 22 and 25.

14. Following an appeal to the Commonwealth Court, by order dated February 22, 2008, our Commonwealth Court reversed this court’s striking of the appeal. See pi. exs. 26-28.

15. By letter dated December 16,2008, defendant fired plaintiff. See pi. ex. 31.

16. On October 15, 2009, plaintiff filed an “Attorney Lien Notice” in defendant’s eminent domain matter for legal services provided to defendant in the amount of $73,987.86. See def. ex. 7. By order dated October 23, 2009, the court ruled that plaintiff’s lien had no legal effect. See def. ex. 8.

17. Plaintiff filed the instant matter against defendant and her family on March 19, 2012.

18. Plaintiff alleges that it is due $72,554.73 in legal fees and $17,293.87 in prejudgment interest. See second amended complaint.

19. Mr. Biersdorf testified that he and/or his associate and/or paralegal and legal secretary spent 131 billable hours working on defendant’s eminent domain case. See pi. ex. 35.

20. While plaintiff was performing work for defendant in her case, plaintiff did not properly document its billable hours, as the parties had a contingent fee arrangement.

21. Mr. Biersdorf testified that the reconstruction of hours that he provided to the court and entered as pi. ex. 35 was created in the summer of 2013 by himself and his staff.

22. The court finds that Mr. Biersdorf’s testimony as to the time expended on defendant’s case is not specific and borders on the line of speculative.

23. However, Mr. Biersdorf’s testimony, corroborated somewhat by plaintiff’s exhibits, supports plaintiff’s argument that plaintiff expended substantial time on defendant’s eminent domain case and that a reasonable amount of attorney’s fees should be awarded to plaintiff.

24. Mr. Biersdorf testified that $250.00/hour is a reasonable attorney’s fee rate for work performed in eminent domain cases. The court finds Mr. Biersdorf’s testimony to be credible.

25. Mr. Biersdorf testified that plaintiff incurred $3,109.07 in legal expenses. See pi. ex. 33. These expenses include filing fees and charges for photocopies, long-distance phone service, postage, and Westlaw research, as well as reimbursements to Mr. Biersdorf for airline tickets and meals. See id.

26. The parties’ representation agreement provides:

Client shall be liable and pay for any appraisal or other expert costs, any witness fees, and direct costs for trial, e.g., subpoenas, court reporters, etc., if they are necessary. This provision does not commit Client to incurring these costs at this time. That will only incur when Client evaluates a particular cost and independently decides later whether to incur it or not. Any costs incurred by client are separate from the fee that the Law Firm is to receive from Client.

PI. ex. 1.

27. Plaintiff failed to provide credible testimony that travel expenses were contemplated as part of those direct costs of trial that defendant agreed to pay at the time the parties entered into their agreement.

28. Plaintiff failed to provide credible testimony that the other expenses outlined in pi. ex. 33, including photocopy, long-distance phone service, and postage charges, were contemplated as part of those direct costs of trial that defendant agreed to pay.

29. Plaintiff shall not be awarded any expense outlined in pi. ex. 33.

II. Conclusions of Law

1. Unjust enrichment is an equitable remedy. Styer v. Hugo, 619 A.2d 347, 350 (Pa. Super. Ct. 1993), aff’d without op., 637 A.2d 276 (Pa. 1994).

2. To pursue a claim in unjust enrichment, plaintiff must establish that it conferred benefits onto defendant, that defendant appreciated such benefits, and that defendant’s acceptance and retention of these benefits, without payment to plaintiff, would be inequitable. Id.

3. The doctrine of unj ust enrichment does not necessarily apply if defendant merely benefitted by the actions of plaintiff; unjust enrichment applies only if defendant’s retention of these benefits without payment to plaintiff is unjust. Id.

4. When the court finds unjust enrichment has occurred, the law implies a contract between plaintiff and defendant. Id. This implied contract requires defendant to pay plaintiff an amount equal to the value of the services it conferred to defendant, i.e. that defendant make restitution to plaintiff in quantum meruit. Id.

5. In the instant matter, the court finds that plaintiff conferred benefits to defendant, that defendant accepted and retained these benefits, and that defendant’s retention of these benefits without payment to plaintiff would be inequitable and unjust. The court bases this conclusion on the increase of $123,000.00 from the district’s initial offer to defendant to the amount awarded by the board of view. This conclusion is also based upon the records and exhibits plaintiff submitted to this court at the time of this hearing.

6. When a client terminates its relationship with an attorney, making the performance of the parties’ contract impossible, the attorney may recover in quantum meruit for the services that he provided to the client prior to the termination. Sundheim v. Beaver County Building & Loan Assn., 14 A.2d 349, 351 (Pa. Super. Ct. 1940) (cited by Hiscott and Robinson v. King, 626 A.2d 1235, 1237 (Pa. Super. Ct. 1993), appeal denied, 642 A.2d 487 (Pa. 1994)). See also Mager v. Bultena, 797 A.2d 948, 955 (Pa. Super. Ct. 2002), appeal denied, 814 A.2d 678 (Pa. 2002).

7. Similar to unjust enrichment, quantum meruit is an equitable remedy. See Feingold v. Pucello, 654 A.2d 1093, 1094 (Pa. Super. Ct. 1995), appeal denied, 664 A.2d 975 (Pa. 1995).

8. Once a contractual relationship has been severed, quantum meruit theory requires any recovery to be based upon work performed on the contract prior to termination. Mager, 797 A.2d at 958.

9. The court finds that the parties’ contractual relationship was terminated on December 16, 2008.

10. A quantum meruit compensation amount for a terminated attorney equates to the number of hours worked multiplied by a “fair fee.” Mager, 797 A.2d at 957.

11. The court finds that $250.00/hour to be a fair fee for attorney’s work performed in eminent domain cases.

12. A recovery under the theory of quantum meruit should not take into account a prior contingent fee agreement entered into by the parties. See generally Mager, 797 A.2d at 955-958.

13. The determination of attorney’s fees has long been held as a difficult question. See LaRocca Estate, 246 A.2d 337 (Pa. 1968). In LaRocca, our Supreme Court held:

[t]he facts and factors to be taken into consideration in determining the fee or compensation payable to an attorney include: the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was “created” by the attorney; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or the value of the property in question.

Id. at 339.

14. After analyzing plaintiff’s exhibit 35, considering the testimony of Mr. Biersdorf and Ms. Homer, and bearing in mind the factors set forth in LaRocca, the court finds that plaintiff expended seventy-five (75) hours of reasonable, appropriate, billable time on defendant’s eminent domain matter.

15. The court finds that plaintiff shall be awarded $18,750.00 in attorney’s fees for the work performed on defendant’s eminent domain case.

16. Plaintiff is not due prejudgment interest on this amount, not because the recovery is based in quantum meruit, but because the sum due to plaintiff was not sufficiently definite. See Burkholder v. Cherry, 607 A.2d 745, 747-48 (Pa. Super. Ct. 1992). The court bases this conclusion on the facts that that the parties’ initial representation agreement was based upon a contingency fee and plaintiff did not reconstmct its billable time until the summer of 2013.

III. Discussion

This matter revolved around a heated dispute between an attorney and his former client for services rendered with regard to the client’s investment property located within Lycoming County. Defendant and her family were residents of New Jersey, while plaintiff’s law firm’s central office was based in Minnesota. Defendant’s late-husband located plaintiff’s law firm on the internet and retained plaintiff on the theory that plaintiff’s firm specialized in eminent domain law. Defendant testified that when her family retained plaintiff, they believed plaintiff’s firm to be based in Philadelphia, when, in fact, plaintiff’s firm only has a shell office in Philadelphia and Mr. Biersdorf, himself, is the only attorney within the firm with a license to practice in Pennsylvania. As defendant had been involved in multiple eminent domain cases in the past, both defendant and Mr. Biersdorf testified that the parties disagreed on plaintiff’s handling of defendant’s eminent domain case. Following an appeal to our Commonwealth Court based upon an error in our county’s prothonotary’s office and the failure of plaintiff to remedy the situation, defendant terminated her professional relationship with plaintiff.

Now, it is for this court to determine whether defendant would be unjustly enriched by retaining benefits conferred upon her by plaintiff without payment to plaintiff. The court finds that defendant would be so unjustly enriched. There is no doubt that defendant benefitted from plaintiff’s work in receiving an increased recovery from the board of view. However, following this finding, the court is put in the difficult place of determining the amount of attorney’s fees to be awarded to plaintiff.

Mr. Biersdorf testified on behalf of plaintiff. He provided to this court that he did not calculate his firm’s billable hours during defendant’s eminent domain case because the parties had a contingency fee arrangement in place. Therefore, Mr. Biersdorf testified that he recreated his billable hours log during the summer of 2013. This log was entered into evidence and admitted as pi. ex. 35. Mr. Biersdorf testified that he and his staff performed 131 billable hours on defendant’s case. These hours spanned from plaintiff’s initial retention of the case on (or slightly prior to) December 11, 2002, through the filing of the appeal with the Commonwealth Court, approximately June 4, 2008. These hours included reaching a stipulation with the district, preparing the case for the board of view, deciding whether to appeal the board of view report, filing the appeal, and conferencing regarding the incorrect docketing of the appeal. The court finds incredible and highly speculative Mr. Biersdorf’s testimony that plaintiff spent 131 billable hours on defendant’s case. That amount of billable time seems excessive for an attorney experienced in eminent domain matters. After considering the testimony and evidence presented by the parties during the hearing, in addition to the factors set forth in LaRocca, supra, the court believes that seventy-five (75) hours is a more accurate estimate of the billable time plaintiff spent on defendant’s eminent domain matter. Multiplying this time by plaintiff’s proffered and accepted fair fee of $250.00/hour, plaintiff is due the amount of $18,750.00 from defendant for services rendered in her eminent domain case.

The court enters the following order.

ORDER

And now, this 19th day of September, 2013, following a non-jury trial in the above-captioned matter, it is hereby ordered and directed that verdict and judgment is entered in favor of plaintiff and against defendant in the amount of$18,750.00.

      . Defendant owned this property in conjunction with her late-husband and late-mother-in-law.

      . See Jayne Horner, Emil P. Horner, Jr., and Mary L. Horner v. Loyalsock Township School District, No 06-00893 (Lycoming Co.).

      . The board of view damages award is $123,000.00, greater than the district’s original offer.

      . Plaintiff’s complaint was amended twice during the preliminary objections phase. Plaintiff’s active complaint is its second amended complaint, filed December 5,2011. However, the only claim standing in plaintiff’s second amended complaint is the action in unjust enrichment. See order, Dec. 20,2012.


author: WILLIAMSON, J.,

text:
    Campbell v. SafeCo Insurance Company of Illinois
    C.P. of Monroe County,
    No 5249 CIVIL 2011

      Kevin M. Conaboy, for plaintiffs.

      Brent A. Green, for defendant.

      July 10, 2013
   WILLIAMSON, J.,

This matter comes before the court on plaintiff’s petition to vacate an arbitrator’s award that dismissed plaintiff’s claims. The matter arises from a motor vehicle accident which occurred on January 8,2010. Plaintiff husband was struck while walking in a parking lot by an unknown driver. Plaintiffs then instituted a suit for uninsured motorist coverage benefits against their insurer, the defendant, based upon their own insurance policy.

The parties agreed to refer the matter to Gerard Geiger, Esquire for private arbitration, although no formal arbitration agreement was executed by the parties. On March 15, 2012, Defendant filed a motion to dismiss based upon lack of coverage under the insurance policy, which was granted by attorney Geiger. Plaintiffs’ petition asks this court to vacate the award because it is contrary to law. Defendant argues that this court cannot vacate an award rendered through common law arbitration under the current circumstances. The parties have submitted briefs, and oral argument was heard on June 28, 2013. We are now ready to dispose of plaintiffs’ petition.

Discussion

The parties agreed to submit this matter to arbitration. Defendant claims that it was binding arbitration. Plaintiff does not deny that it was binding arbitration, but points out that no formal agreement was executed. Arbitration is controlled by the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S.A. §7301 et. seq. Under the facts of this case, it is clear that the parties agreed to common law arbitration. Section 7302(a) states:

(a) General Rule — An agreement to arbitrate a controversy on a nonjudicial basis shall be conclusively presumed to be an agreement to arbitrate pursuant to Subchapter B (relating to common law arbitration) unless the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to this subchapter or any other similar statute, in which case the arbitration shall be governed by this subchapter.

42. Pa. C.S.A. §7302(a). In their petition, plaintiffs do not aver that the agreement to arbitrate was in writing and expressly provided for arbitration pursuant to the statute. In fact, in both their petition and brief, plaintiffs’ contend that there was never a formal agreement. Therefore, we find that the parties agreed to common law arbitration.

Common law arbitration is controlled by section 7341, which states:

The award of an arbitrator in a nonjudicial arbitration which is not subject to Subchapter A (relating to statutory arbitration) or a similar statute regulating nonjudical arbitration proceedings is binding and may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.

42 Pa.C.S.A. §7341. An arbitrator is the final judge of both the law and fact and his award will not be set aside unless there is clear, precise, and convincing evidence that the parties were denied a hearing or that there was fraud, misconduct, corruption, or some other irregularity which caused the rendering of an unjust, inequitable, or unconscionable award. Runewicz v. Keystone Insurance Co., 383 A.2d 189 (Pa. 1978).

In the present case, there are no allegations that the parties were denied a hearing or that there was fraud, misconduct, corruption, or some other irregularity causing an unjust, inequitable, or unconscionable award. However, the plaintiffs argue that a trial court may vacate an arbitration award that constitutes an error of law or abuse of discretion, and cite Tannenbaum v. Nationwide Ins. Co., 919 A.2d 267 (Pa. Super. 2007) in support of that argument. The rule from Tannenbaum, however, only applies to arbitration awards arising from contracts which specifically call for arbitration under the Pennsylvania Arbitration Act. Id. at 269. This arbitration was submitted under common law. Therefore, atrial court may not vacate the award except under the circumstances mentioned above.

In their answer to the petition, the defendant asks this court to enter the award as a judgment. “On application of a party made more than 30 days after an award made by an arbitrator under section 7341 (relating to common law arbitration) the court shall enter an order confirming the award and shall enter a judgment or decree in conformity with the order.” 42 Pa.C.S.A. §7342(b). Accordingly, we issue the following order.

ORDER

And now, this 10th day of July, 2013, upon consideration of the plaintiffs’ petition to vacate the arbitrator’s decision, and following oral argument, it is ordered as follows:

1. Plaintiffs’ petition is denied.

2. The award of the arbitrator, finding in favor of defendant, Safeco Insurance Company of Illinois and against the plaintiffs, Donald Campbell and Janet Campbell is confirmed and judgment is entered in favor of defendant, Safeco Insurance Company of Illinois, and against plaintiffs, Donald Campbell and Janet Campbell.


author: SMITH, J.,

text:
    Fullam v. Miller Brothers

      Edward E Chacker, for plaintiff.

      John G. Devlin, for defendant.

      July 22, 2013-
   SMITH, J.,

Procedural History

On February 8, 2010 the plaintiff filed a complaint for personal injuries sustained on February 19, 2008. A jury found the plaintiff 85% negligent and the defendant 15% negligent on October 4, 2012. Therefore, a verdict was entered in favor of the defendant.

Prior to trial, the plaintiff filed a motion in limine to preclude any reference to or evidence of Vicodin/narcotic medication consumption. The court granted the motion on October 1, 2012. On October 1, 2012, the plaintiff made an oral motion in limine to preclude evidence concerning how she obtained the names of her treating doctors, which was denied by the court. Plaintiff also made an oral motion in limine to preclude references to the fact that plaintiff injured her left foot (in this case, she injured her right foot) when she was 17, which was granted.

Defense counsel sought to elicit testimony that the plaintiff had health insurance that would cover future medical expenses. The court denied this request. On cross, defense counsel asked the plaintiff whether her health insurance paid for her past medical expenses. Plaintiff’s counsel did not object. This court instructed the jury not to consider any comments made regarding the fact that plaintiff may have had health insurance as evidence in the case.

The court instructed the jury that the defendant had a duty of reasonable care rather than as an occupier to a public invitee. Plaintiff agreed general negligence was preferable to an instruction defining plaintiff as a licensee, but noted an objection. The court also instructed the jury that the plaintiff had a choice of ways, which plaintiff objected to. The plaintiff filed a timely post-trial motion on October 12, 2012. The motion was denied on November 30, 2012. This appeal follows.

Factual Flistory

On February 19,2008, plaintiff sustained injuries when she fell into a hole that was partially covered by a metal plate at the intersection of 34th and Market Streets. Plaintiff testified that she did not see the hole, and that it was located in the cross-walk where she was directed to walk. The defendant’s witnesses testified that plaintiff walked right into the clearly cordoned off construction zone despite signs that explicitly directed pedestrians where to walk. The construction project was “enormous.” Plaintiff drove past the construction site every morning before work. Plaintiff saw the barrels, cones, and tape that were blocking pedestrians from crossing on Market Street and she saw the “sidewalk closed” sign directing pedestrians to a clear pathway. The only way to get into that area was to go over or under the caution tape. Although she was aware of and saw all the construction activity, she chose not to take an alternative route despite the fact that there were available alternative ways. The defendant’s witnesses testified that they followed all applicable safety standards to ensure the safety of the site. Hundreds or thousands of pedestrians had walked that intersection from 7:00 a.m. until noon when the Plaintiff fell on the date of the incident.

Mr. Puglizse, a foreman for Miller Brothers, witnessed the plaintiff walk around the backhoe that was within the construction zone, climb over a pile of dirt and fall. When the plaintiff fell, Mike Miller, Vice-President of Miller Brothers, and Mr. Puglizse came to her side to offer assistance. Plaintiff refused medical help and did not want an ambulance because she had a dentist appointment she did not want to miss. Miller and Puglizse testified that the plaintiff was disoriented, and that plaintiff told them she was on painkillers for her tooth. Plaintiff testified that she had only taken ibuprofen prior to the fall.

Plaintiff’s husband picked her up from her dentist’s office and took her to the emergency room at Chestnut Hill Hospital. Plaintiff injured her right foot (a fifth metatarsal base fracture). She had one visit to a podiatrist at Chestnut Hill Hospital for the injury to her foot, but discontinued care with him because he was not on her health insurance plan. Subsequently she saw Dr. Shannon at Penn-Presbyterian until August of 2008 when she reached maximum improvement. Although she felt initial improvement, after about a year her foot started to feel worse and she experienced difficulty walking distances and exerting pressure on it. Her attorney gave her a list of physician names, and she selected Dr. Schoenhaus. Dr. Shoenhaus treated the plaintiff and recommended future surgeiy. She had health insurance, which had paid her past medical bills with the exception of some out of pocket expenses such as co-pays.

Discussion

I. Legal Standard

Plaintiff avers that a new trial is warranted because various errors took place during the course of trial. A new trial may be granted when “the verdict is against the weight of the evidence,” but “only where the verdict is so contrary to the evidence it shocks one’s sense of justice.” Additionally, “[t]he harmless error doctrine underlies every decision to grant or deny a new trial. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake.”

A. Motion to Preclude References to Plaintiff’s Prior Injuries

As a threshold matter, “remarks by counsel may constitute grounds for a mistrial,” however, “such remarks must be beyond correction by any admonition which the court may give the jury.” Furthermore, comments that counsel makes do not warrant a new trial when they were “neither inflammatory nor prejudicial.” There are occasions when counsel’s comments are beyond curative instruction and a mistrial is the only recourse to “obliterate the taint.”

Plaintiff cites to Poust v. Hylton, 940 A.2d 380 (Pa. Super. 2007) and Siegal v. Stefanyszyn, 718 A.2d 1274 (Pa. Super. 1998) for the proposition that a violation of an order on a motion in limine is grounds for a mistrial and also for a new trial when raised in post-trial motion. In Poust, the court granted the appellant’s “motion in limine to specifically preclude defense counsel from mentioning the word ‘cocaine’ with reference to decedent during the course of the trial.” Defense counsel violated the order, and the plaintiff immediately objected. Plaintiff also moved for a curative instruction and a mistrial, which the court denied. The appellate court noted that the trial court erred in denying the motion for mistrial. Similarly, in Siegal, the appellee violated an order entered on a pretrial motion during closing arguments. The appellant immediately objected. The court gave a curative instruction. The appellate court noted that “[i]t is the duty of the trial judge to take affirmative steps to attempt to cure harm, once an offensive remark has been objected to.”

When plaintiff was seventeen, she suffered a minor fracture to a bone in her left foot, but had never injured her right foot prior to this incident. Prior to trial this court ruled that the defendant could not mention that fact because the injury was too remote. During defense counsel’s opening statements he said: “By the way, this is not the first time Ms. Fullam has busted a metatarsal.... When she was 17, she broke the same bone in the left foot, the opposite foot.” Upon conclusion of defense counsel’s opening statement, plaintiff’s counsel requested a curative instruction. The court took the request under advisement, but an instruction was not given.

Although the court did not give the requested curative instruction, any error was harmless error and a new trial was not warranted because the remark of defense counsel was not so inflammatory as to cause prejudice that changed the outcome of the case or influenced the verdict. Although plaintiff also brought the issue to light during direct examination, it was made clear that this was an old injury to the opposite foot. The overwhelming evidence in this case supported the verdict, and this comment was not so inflammatory or prejudicial as to have influenced the verdict in this matter.

B. Violation of Motion to Preclude References to Plaintiff’s Use of Vicodin and Narcotic Intoxicants

A party has an obligation to make an objection or move for relief when there is an error that could be corrected during the course of trial. Post-trial relief can only be granted where the issue is first raised in the trial court. Although Poust and Seigal instruct that the trial court’s failure to give a curative instruction or grant a new trial where a party has violated a motion in Limine may be grounds for reversal, the cases also highlight the fact that the offended party must object or otherwise request such relief at a time when the court is able to do so. This is in keeping with Pa.R.C.P. 227.1, which prohibits the trial court from granting post-trial relief when relief was not sought during trial at a time when the trial court could have corrected the problem.

Here, prior to closing arguments, the defendant was advised to abide by the order, and not to go beyond that which was already on the record during closing arguments. However, during closing arguments, counsel for the defendant argued:

“She testified she was on painkillers. That was her testimony. It’s not something I said, it’s not something Mr. Miller said, It’s not something Mr. Pugliezse said. That’s the words out of her own mouth, painkillers. Now counsel for plaintiff is suggesting to you it was just Ibuprofen. You can imagine what kind of painkiller she was on that day.”

Plaintiff did not ask for either a curative instruction or a mistrial based on defense counsel’s comments concerning the plaintiff’s use of painkillers. Due to plaintiff’s failure to raise any objection or to request relief following defense counsel’s comments, plaintiff has waived her right to relief. Nonetheless, this court acknowledges that defense counsel’s comments blatantly attempted to skirt the court’s ruling. Defense counsel’s comments suggested that the plaintiff was disoriented because she was on painkillers. Plaintiff waived her right to preserve this issue when she failed to raise any objection or ask for relief such as a mistrial pursuant to Pa.R.C.P. 227.1, and therefore, this court was unable to grant post-trial relief in the form of a new trial.

C. Mention of Unnamed Witnesses

Plaintiff argues that during closing statements defense counsel for the first time mentioned witnesses who had not testified nor been named as witnesses (such as union shop stewards). Plaintiff did not object or ask for any relief at the time of the allegedly objectionable comments nor at any time during the course of the trial. Therefore, as the issue was not raised in a timely manner prior to the conclusion of trial, plaintiff has waived her appeal rights with respect to this issue.

D. Denial of Motion in Limine to Preclude Evidence of How Plaintiff Obtained the Names of Treating Physicians.

Any party is entitled to attack the credibility of any witness and may bring out potential interest of any witnesses during trial. A party has a broad right to inquire about an expert’s bias or interest in a case. It is well settled that a “party [may]... examine an expert witness’ relationship with the counsel calling the expert, including the history and amount of compensation received by the expert from counsel.” An expert’s relationship with the attorney or law firm that hired the expert is proper subject matter for cross-examination.

Here, Dr. Shoenhaus treated the plaintiff and was retained as an expert in the case. Plaintiff obtained Dr. Shoenhaus’ name from her attorney. Defendant had the right to cross-examine Dr. Shoenhaus about his relationship with plaintiff’s counsel in order to expose any potential bias or interest towards either side of the lawsuit. The defendant was well within its rights to cross-examine him as an expert to reveal interests and biases based upon his relationship with plaintiff’s attorney. Thus, the court did not err in denying the motion to preclude references as to how the plaintiff obtained the name of Dr. Schoenhaus.

Defense counsel mentioned that plaintiff was referred to Dr. Lee for treatment of her wrist by Nancy Fullam, an attorney and plaintiff’s cousin, during opening arguments. First, plaintiff testified as to her injuries, and the treatment that she received for them. Defendant had the right to attack the credibility of that testimony by showing she was referred to Dr. Lee by an individual who had potential bias or that the doctors she saw had potential bias or interests due to their relationship with the referring party. Second, if there was any error in allowing the manner in which plaintiff obtained Dr. Lee’s name, it was harmless error as the comments made by defense counsel were not so inflammatory as to cause prejudice that changed the outcome of the case or influenced the verdict.

E. References to Plaintiff’s Health Insurance Coverage

Plaintiff avers that over her obj ection, the defendant was erroneously permitted to tell the jury that the plaintiff had health insurance. Based on plaintiff’s opening statements concerning the existence of future medical bills, defense counsel sought to elicit testimony that the plaintiff would have health insurance to cover such future medical bills. This court ruled that plaintiff had already testified she had health insurance at the time of the incident, and the defendant could bring out the fact that plaintiff presently had health insurance. However, testimony could not be elicited that she would have health insurance in the future. On cross-examination, defendant elicited testimony from plaintiff that she had medical insurance and that it paid her past medical expenses. Plaintiff’s attorney did not object, and therefore waived her right to raise this issue in her post-trial motion. Additionally, this court instructed the jury not to consider any argument or testimony that plaintiff had insurance, which would have cured any possible prejudice.

F. Jury Instruction as to Defendant’s Duty

The Restatement Second of Torts defines public invitee as “a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.” Further, the courts have explained that a key aspect of defining an individual as a public invitee is the “invitation.” There must be evidence that the “possessor desires [the individual] to enter the land.” Conversely, “[a] licensee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” Case law teaches that “a pedestrian walking on a public sidewalk is a licensee,”

Furthermore, the duty owed to a person entering land by the occupier of the land “depends on whether the person who entered was an invitee, a licensee, or a trespasser.” The duty owed to a licensee by an occupier of land is one of reasonable care. Pennsylvania law provides that general negligence standards apply in cases involving road contractors. Under a general negligence standard, the duty owed is of reasonable care.

Here, plaintiff asked for a jury instruction as to the defendant’s duty as a person in control of the property, and asked that the plaintiff be characterized as a public invitee or in the alternative as a licensee. There was significant evidence to establish that the plaintiff fell within the cordoned off area where defendants specifically intended to keep the public away from. There is no evidence that the defendant extended an invitation, expressed a desire, or offered inducement for the plaintiff to enter the area where the plaintiff fell. Thus the jury could not be charged with an instruction that plaintiff was a public invitee. The court determined that the plaintiff’s status was one of a licensee, and that the duty owed to the plaintiff was one of reasonable care, and plaintiff objected. All parties agreed that in light of such ruling the instruction for general negligence should be given rather than to give an instruction defining the status of licensee.

Now plaintiff argues that the court erred in not defining the plaintiff as either a public invitee or in the alternative as a licensee. At trial, although the court’s stated intention was to instruct the jury as to plaintiff’s status as a licensee, plaintiff specifically objected to an instruction on the plaintiff’s status as licensee being given. Plaintiff asked instead for an instruction on general negligence in light of the court’s decision not to read the charge as to public invitee. Whether the court had read the general negligence charge or a charge defining what a licensee is, the duty is the same: reasonable care. There was no basis for instructing the jury as to the duty owed to a public invitee. The charge on general negligence allowed the jury to properly decide whether the defendant breached a duty of reasonable care. The jury so found, but found that plaintiff’s own negligence was greater than that of the defendant’s negligence. Any error that may have occurred was harmless error because the jury found the defendant negligent, but found the plaintiff’s negligence to exceed that of the defendant’s.

Finally, the defendant agreed that it was an occupier of the premises. That duty depends upon the status of the plaintiff. Since plaintiff was not a public invitee, and plaintiff objected to a jury instruction defining the status of licensee, it was proper to give only the standard negligence charge without defining the defendant’s status, Thus, this court did not err in charging the jury as to general negligence.

G. Court’s Denial of Corrective Instruction as to Defendant’s Presentation of Evidence that Nobody Else Fell at the Accident Site on the Time and Date of the Incident.

Case law indicates that “evidence of similar accidents occurring at substantially the same place and under the same or similar circumstances may, in the sound discretion of the trial Judge, be admissible to prove constructive notice of a defective or dangerous condition and the likelihood of injury.” Furthermore, “evidence that no other accidents occurred, despite similar conditions, may be admissible to prove there was no dangerous condition.” In DiBuono v. A. Barletta & Sons, Inc., 560 A.2d 893, 896 (Pa. Cmwlth. 1989) the “[ajppellant... argue[d] that the trial judge erred in failing to allow its proffered testimony regarding the absence of accidents at the construction site for the ninety-two days preceding the accident at issue.” The Commonwealth Court found that the trial court committed no error because testimony demonstrated that “the lighting and traffic pattern had been changed within two weeks of the accident.”

Here, the court properly allowed evidence and argument as to the absence of prior accidents that occurred at the same time and place under the same circumstances. Unlike the facts in DiBuono, the arguments and testimony of absence of prior similar accidents involved the same place and in the same time frame. There was no showing that circumstances had substantially changed as they did in DiBuono. The evidence and arguments were properly presented to show that other pedestrians followed the defendant’s warnings and signage and that there was no dangerous condition within the cross-walk area where the defendant had directed pedestrian traffic. Plaintiff testified that she fell in the cross-walk where the defendant directed people to walk. The defendant’s witnesses contradicted plaintiff’s assertion by testifying that plaintiff crossed the barricade and entered an area where she was not permitted to be. This evidence was properly allowed to show that at that same time and place many other people properly followed the signs and warnings to take the proper path without any incident or accident of a similar nature occurring. Therefore, this court did not err in declining to give a corrective instruction.

H. Instruction on Choice of Ways.

A plaintiff may be held contributorily negligent “’[w] here a person, having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover.” In order to justify a jury instruction on choice of ways, “There must be evidence of (1) a safe course, (2) a dangerous course, and (3) facts which would put a reasonable person on notice of the danger or actual knowledge of the danger.”

In Downing v. Schaffer, 371 A.2d 953, 957 (Pa. Super. 1977), it was shown that “if appellant turned right, she risked being struck by a car... [and] [i]f she turned left, she risked being struck by a car.” As such, the “Appellant’s choice of routes... [were] equally dangerous,” and “no evidence was presented which would allow the jury to conclude that there was a safe route which the appellant failed to take.” Conversely, in Stowe v. Booker, 424 A.2d 1388, 1391 (Pa. Super. 1981), the plaintiff stepped into an intersection from behind an illegally parked vehicle and was hit by a car. The court noted that there was evidence that (1) a safe course existed; (2) the plaintiff “was familiar with the area and the busy nature of 22nd Street,” (3) “a person familiar with 22nd Street would appreciate the danger involved in stepping out from behind a truck into the street when the truck blocked both [the Plaintiff’s] view of traffic and driver’s view of [the Plaintiff].”

Here, there was evidence of several safe courses, evidence of a dangerous course, and facts that would have put a reasonable person on notice of the danger or actual knowledge of the danger. First, there was testimony that plaintiff couldhave followed the signs instructing her where to walk to avoid the cordoned off area of construction she walked through. There was also testimony that both 33rd Street or northbound 36th Street were both safe available alternative routes. Plaintiff testified that she did not choose to take another route because she was “planning to simply go the route that [she] had always gone which was up 34th Street and to follow whatever [she] needed to do there.” Second, there was testimony that the route that plaintiff chose to take was dangerous. There was testimony and evidence that plaintiff walked into a cordoned off area of construction where pedestrians were not permitted to be. There was active construction activity going on in the area where plaintiff fell. It was cordoned off because it was not a safe area for pedestrians to walk through. Third, there was evidence that a reasonable person would have been on actual or constructive notice of the danger of the course she took. Plaintiff was fully aware of the fact that construction activity was taking place at 34th and Market Streets because she worked nearby and drove past the site every morning on her way to work. The construction site was enormous. Plaintiff saw the barrels, cones, and tape that were blocking pedestrians from crossing straight on Market Street and she saw the “sidewalk closed” sign directing pedestrians to a clear pathway.

Although the plaintiff testified that she fell within the cross-walk the defendants directed her to follow, there was significant testimony and evidence that in fact she crossed over the barriers and walked into the cordoned off area of construction where she was not permitted to be. Thus, there was sufficient evidence that a safer route existed, and that plaintiff chose to take a route that was clearly dangerous. Therefore, it was proper for the court to instruct the jury as to the plaintiff’s choice of ways.

This court respectfully requests that the Superior Court affirm.

      . N.T., pp.ll, Oct. 1, 2012.

      . N.T., pp. 15, Oct. 1,2012.

      . Id. at 15; 63-64.

      . Id. at 48-65.

      . Id. at 191-192.

      . Id. at 145.

      . Id.

      . Id. at 65; 84 (the court instructed the jury: “By the way, ladies and gentlemen, disregard any references counsel has made about insurance. Insurance is not an issue in this case. You can’t decide the case on whether plaintiff has insurance or not. Insurance — those issues won’t even be discussed in this case. Do you understand? That’s not how you should decide this case.”)

      . N.T., pp. 5-6, Oct. 3,2012.

      . Id. at 6-7.

      . See Pis. mot. for post-trial rel., Oct. 12,2012.

      . N.T., pp. 90; 92; 97, Oct. 1, 2012.

      . Id. at 97; see also N.T., pp. 131, Oct. 2, 2012.

      . N.T., pp. 8-9; 49-50; 87; 94; 110-111, Oct. 2, 2012 (The area was cordoned off with tape, and was highly visible and marked with “cones, barrels, signs, barricades... beacons... red trucks... [a] police officer, [and] his flashing device. Additionally, a “sidewalk closed” sign directing pedestrians to cross the street and directing pedestrians to a clear path was posted 50 feet before the northbound approach of 34th Street. Plaintiff saw the sign.)

      . N.T. pp. 92, Oct. 1,2012.

      . Id. at 127-131.

      . Id. at pp. 92-94; see also N.T., pp. 9; 49-50; 94 Oct. 2, 2012 (The “sidewalk closed” sign was posted 50 feet before the northbound approach of 34th Street.)

      .N.T, pp. Ill, Oct. 2, 2012.

      . N.T. pp. 128-132, Oct. 1, 2012 (Plaintiff agreed that both 33rd Street or northbound 36th Street were available alternative routes. Plaintiff testified that she did not choose to take another route because she was “planning to simply go the route that [she] had always gone which was up 34th Street and to follow whatever [she] needed to do there. [She] did not know... that 3[4]th and Market was blocked with backhoes.”)

      . N.T., pp. 11-39, Oct. 2,2012.

      . Id. at 118.

      . N.T., pp. 115-116; 124-125, 128 Oct. 2, 2012 (Plaintiff denied walking around a dirt pile.)

      . Id. at 14.

      . Id. at 99, Oct. 1, 201; N.T., pp. 15-16, Oct. 2,2012.

      . N.T., pp. 87; 95, 111; 113; 122, Oct. 2, 2012 (Miller testified that plaintiff seemed “oblivious to the fact that she had just stepped in a ditch... to the fact that her face was just in a pile of dirt... If she had injuries she did not know or feel any pain from them. From what she told me, she told me she was on painkillers, and she told me she just had to get to the dentist.” Puglizse testified that the plaintiff “stated.... that she had already been through that intersection, that she got lost and couldn’t find her dentist.”)

      . N.T., pp. 92,132, Oct. 1, 2012 (On direct, plaintiff testified: “Q: Had you taken ibuprofen that day? A: I probably took two because I was going to the dentist, and it’s usually a good idea.” On cross-examination, the Plaintiff testified: “Q: You were not in pain? You told us that you had consumed some ibuprofen before this accident happened. A: As I do before there is going to be any dental procedure.”); and see N.T., pp. 128, Oct. 2, 2012 (Plaintiff denied taking anything other than ibuprofen but admitted that she refused medical help because she was “dazed.”)

      . Id. at 113-115 (Plaintiff also injured her right wrist. Plaintiff was treated by Dr. Lee three or four times for her left wrist sprain. Dr. Lee He put her in a splint and gave her exercises to do. She was sent to Dr. Lee by her cousin Nancy Fullam, who was an attorney.)

      . Id. at 97-103; 143; 151-152.

      . Id. at 105.

      . Id. at 105-106; 110; 145; 153-155.

      . Id. at 115.

      . Id. at 15; 116 (Plaintiff’s attorney brought this fact out on direct examination).

      . Id. at 117-118; 120-121 (At the time of the trial, plaintiff had discontinued care under Dr. Shoenhaus for approximately 12 to 18 months and had not scheduled or received the recommended surgery.)

      . Id. at 145-146 (Plaintiff’s attorney did not make an objection. Instead he advised the court that the plaintiff was not making a claim for past medical expenses, and the court instructed defense counsel to make that clear).

      . Kraner v. Kraner, 841 A.2d 141, 144-45 (Pa. Super. Ct. 2004).

      . Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000).

      . Daddona v. Thind, 891 A.2d 786, 809 (Pa. Commw. 2006).

      . Mansour v. Linganna, 787 A.2d 443, 449 (Pa. Super. 2007); see also Poust v. Hylton, 940 A.2d 380 (Pa. Super. 2007) (“A new trial is to be granted where: the unavoidable effect of the conduct or language was to prejudice the factfinder to the extent that the factfinder was rendered incpapable of fairly weighing the evidence and entering an objective verdict. If [counsel’s] misconduct contributed to the verdict, it will be deemed prejudicial and a new trial will be required.”) (citing to Commonwealth v. Francis, 445 Pa. Super. 353, 665 A.2d 821 (1995)).

      . Young v. Washington Hosp., 761 A.2d 559, 562 (Pa. Super. 2001).

      . Poust, 940 A.2d at 382-83.

      . Id. at 383.

      . Id. at 384.

      . Id. at 385.

      . Siegal, 718 A.2d at 1276.

      . Id

      . Id. at 1277 (emphasis added).

      . N.T. at 124-25, Oct 1,2012 (Plaintiff’s attorney brought this fact out on direct examination).

      . Id. at 15; 63-64.

      . Id at 75.

      . Id. at 82; 124 (On direct, plaintiff testified that she had a prior injury to her opposite foot at the age of 17.)

      . Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114(Pa. 1974); see also Straub v. Cherne Indus., 880 A.2d 561, 566 (Pa. 2005).

      . Straub, 880 A.2d at 566; See also Pa. R.C.P. 227.1.

      . N.T., pp. 44; 46-47; 69, Oct. 3, 2012 (Defense counsel also argued: “And she doesn’t know where she fell because she was disoriented, she’s on painkillers and she’s raptured in pain. She doesn’t know where she fell...” “The fact of the matter is these men have an independent recollection of picking this woman up when she was in a work zone where she had no business to be. They were clear as a bell when they told you she was disoriented. She was on painkillers. That’s her own words, and she was disoriented and didn’t know where she was going.”)

      . This court would have likely granted relief at the time these comments were made in closing arguments had plaintiff made the request. This issue would have been discussed in a memorandum order at the time that the post-trial motions were decided, but the court did not have the benefit of the transcript at that time. The court was forced to issue an order to compel the stenographer to transcribe the notes of testimony, which were not provided to the court until June 17,2013.

      . N.T., pp. 59-60, Oct. 3,2012 (During closing arguments, defense counsel argued: “And let me tell you something, every union site has a shop steward. And if anybody feels, and I mean anybody, that they are any risk of personal injury they notify the shop steward... Did you hear any complaint from the union shop steward about this job site? Did they call anybody and testify that this was unsafe? The answer is no.”)

      .Pa. R.E. 607.

      . In J.S. v. Whetzel, 860 A.2d 1112, 1121 (Pa. Super. 2004); see also Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614, 625-26 (Pa. Super. 1999).

      . Mohn v. Hahnemann Med. Coll. & Hosp. of Philadelphia, 515 A.2d 920, 923 (Pa. Super. 1986)(a party is allowed to “inquiry into a physicians personal friendship with a party to a suit or a party’s attorney so as to expose his interest in or bias towards either side of the lawsuit.” (citing to Mohn, 515 A.2d at 923.)

        . Id. at 191-192.

      . Restatement (Second) of Torts § 332 (1965).

      . Palange v. City of Philadelphia, Law Dep’t, 640 A.2d 1305, 1308 (Pa. Super. 1994) (citing to Restatement (Second) of Torts § 332, comment b which notes that “[although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they so desire.")

      . Id.

      . Restatement (Second) of Torts § 330 (1965).

      . Alexander v. City of Meadville, 2012 PA Super 266, 61 A.3d 218, 221 (Pa. Super. Ct. 2012); see also Peair v. Home Association of Enola Legion No. 430 A.2d 665, 668 (1981).

      . Pa. SSJI (Civ) § 18.00 (2013).

      . Pa. SSJI (Civ), § 18.50 (2013) (“An [owner] [occupier] of land is required to use reasonable care to make the land as safe as it appears, or to disclose to the licensees the risks they will encounter.”)

        . De Haas v. De Haas, 391 Pa. 76, 81, 137 A.2d 258, 261 (Pa. 1958) (the plaintiff, who was a passenger in a vehicle, was injured when the driver collided with “a boulder imbedded in a three-foot pile of earth” which was in the road as part of a highway construction project. The court noted that “[t]he appellant, while repairing that highway, owed to him the obligation of reasonable care.” De Haas establishes that general negligence standards apply to cases involving injuries obtained in the area of road construction.)

      . N.T., pp. 5, Oct. 3,2012.

      . N.T., pp. 148-161, Oct. 2, 2012.

      . Whitman v. Riddell, 324 Pa. Super. 471 A.2d 521, 523 (Pa. Super. 1984) (citing from Stormer v. Alberts Construction Co., 165 A.2d 87, 89 (Pa. I960)); see also DiBuono v. A. Barletta & Sons. Inc., 560 A.2d 893, 896 (Pa. Cmwlth. Ct. 1989) (citing from Ringelheim v. Fidelity Trust Company of Pittsburgh, 198 A.628, 629 (Pa. 1938)).

      . 1 West’s Pa. Prac., Evidence § 421-2 (4th ed.); Orlando v. Herco, Inc., 351 Pa. Super. 144, 148, 505 A.2d 308, 310 (1986) (“[T]he fact that all other shrimp creole sold that evening, prepared at the same time and using common ingredients, was found to be fit for human consumption was a relevant fact for the jury to consider.”)

      . DiBuono, 560 A.2d at 896.

      . Downing, 371 A.2d at 956 (citing from Haven v. Pittsburgh & Allegheny Bridge Co., 151 Pa. 620, 25 A.311 (Pa. 1892)).

      . Id. at 956.

        . Id. at 957.

      . Stowe 424 A.2d at 1391.