author: BERNSTEIN, J,

text:
    Scully v. Daimler Chrysler Corp.

      John K. Weston, for plaintiff.

      Keith D. Heinold, for defendant.
    November 2, 2005
   BERNSTEIN, J,

Plaintiffs appeal the order of September 1, 2005, denying their motion for class certification. On September 26, 2002, Daniel J. Scully filed a complaint on behalf of the class, alleging that his engine failure in his leased Dodge Durango was caused by a defective Plenum Pan Gasket (PPG). Plaintiff’s complaint alleged violation of the Unfair Trade Practices and Consumer Protection Law, misrepresentation, negligence, breach of express warranty, breach of duty of good faith and fair dealing, and breach of the implied warranty of merchantability. Count three, negligence and Count five, breach of duty of good faith and fair dealing, were dismissed through preliminary objections.

On November 15-16, 2004, the court held a hearing pursuant to Pennsylvania Rule of Civil Procedure 1707. By order dated September 1, 2005, this court denied class certification and, pursuant to Pennsylvania Rule of Civil Procedure 1710(a), accompanies its order with 'findings of fact, conclusions of law, and discussion.

FINDINGS OF FACT

(1) The class plaintiff sought to certify was “All persons/entities who purchased or leased a vehicle equipped with an LA engine (3.9L, 5.2L and 5.9L engines installed on Daimler Chrysler Corp. vehicles between 1992 and 2002) in Pennsylvania; and all persons/entities who purchased or leased a vehicle equipped with an LA engine in another jurisdiction but attempted to have the plenum assembly remedied in Pennsylvania.”

(2) During the 1990s Chrysler began using “LA engines” in many of their vehicles.

(3) The LA engine comes in a 3.9 liter, 5.2 liter, and 5.9 liter size.

(4) From 1994 through 1999, 146,780 individuals either purchased or leased a new Chrysler automobile containing an LA engine.

(5) LA engines contain a Plenum Pan Gasket (PPG). The PPG is designed to stop oil from entering the intake manifold.

(6) From 1992 through 2002, the PPG was manufactured from paper, enhanced paper, or embossed steel.

(7) If the PPG fails, a vacuum is created and oil is sucked into the intake manifold, creating a buildup in the engine’s combustion chamber. The buildup mixes with fuel, lowering the fuel’s octane.

(8) The lowering of the fuel’s octane results in increased combustion. Increased combustion is also known as “engine knock,” and is manifested as an audible rattling noise in the engine.

(9) Increased combustion can also lead to increased “blowby.” Blowby refers to the collective gasses emitted from the combustion chamber. When blowby enters the crankcase of the engine, it mixes with the oil and creates contaminants.

(10) As the contaminants build up in the oil, “engine sludge” is formed.

(11) Engine sludge can build up on the intake screens. This prevents the engine from receiving proper lubrication.

(12) This lack of lubrication can ultimately lead to engine failure.

(13) In addition to the failure of the PPQ low quality fuel can cause engine sludge.

(14) In addition to the failure of the PPG, faulty ignition timing can cause engine sludge.

(15) In addition to the failure of the PPQ bad air filters can cause engine sludge.

(16) In addition to the failure of the PPQ bad oil filters can cause engine sludge.

(17) In addition to the failure of the PPQ towing heavy loads can cause engine sludge.

(18) In addition to the failure of the PPG, certain climates can cause engine sludge.

(19) In addition to the failure of the PPQ high temperatures can cause engine sludge.

(20) In addition to the failure of the PPQ infrequent oil changes can cause engine sludge.

(21) In addition, to the failure of the PPQ long idle times can cause engine sludge.

(22) In addition to the failure of the PPQ traveling at high speeds can cause engine sludge.

(23) Mr. Scully, the named plaintiff, resides in West Chester, Pennsylvania.

(24) In 1998, Mr. Scully leased anew Dodge Durango.

(25) Mr. Scully did not follow the recommended procedures for changing his oil.

(26) At or around January of 2002, an employee of the named plaintiff, while driving the Durango, was involved in a serious front end collision.

(27) The day after Mr. Scully’s Durango was repaired, the engine failed.

(28) When the engine failed, Mr. Scully purchased a used engine and had it installed in his Durango.

(29) Mr. Scully used the same PPG from the failed engine in the replacement engine. The PPG on Mr. Scully’s vehicle was never replaced.

(30) Mr. Scully has since sold the vehicle.

(31) Between 5 percent and 10 percent of LA engines in Chrysler automobiles will experience a PPG leak over the lifetime of the vehicle.

(32) Plaintiff’s expert witnesses have seen a total of 16 LA engines with a PPG leak.

(33) None of the plaintiff’s expert witnesses have seen a PPG leak in a 3.9 liter LA engine.

(34) Plaintiff’s experts have not seen a leak in LA engines that use a steel PPG.

(35) None of plaintiff’s witnesses have had or ever will have an opportunity to examine the PPG in Mr. Scully’s Durango.

(36) None of plaintiff’s experts identified what defect existed in Mr. Scully’s PPG.

DISCUSSION

The sole issue before this court was whether the prerequisites for certification as stated in Pa.R.C.P. 1702 were satisfied. Class action lawsuits are meant “to provide a means by which the claims of many individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 397, 676 A.2d 1237, 1239 (1996). For a suit to proceed as a class action, Rule 1702 of the Pennsylvania Rules of Civil Procedure requires that five criteria be met:

“(1) the class is so numerous that joinder of all members is impracticable;
“(2) there are questions of law or fact common to the class;
“(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709;
“(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.”

Rule 1708 of the Pennsylvania Rules of Civil Procedure requires:

“In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth [below]:
“(a) Where monetary recoveiy alone is sought, the court shall consider:
“(1) whether common questions of law or fact predominate over any question affecting only individual members;
“(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
“(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
“(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
“(ii) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of other members not parties to the adjudications, or substantially impair or impede their ability to protect their interests;
“(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
“(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
“(6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions;
“(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.”

The burden of showing each of the elements in Rule 1702 is initially on the moving party. This burden “is not heavy and is thus consistent with the policy that ‘decisions in favor of maintaining a class action should be liberally made.’” Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985). The moving party needs only present evidence sufficient to make out a prima facie case “from which the court can conclude that the five class certification requirements are met.” Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002) (quoting Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982)).

In other contexts, the prima facie burden has been construed to mean “some evidence,” “a colorable claim,” “substantial evidence,” or evidence that creates a presumption requiring its opponent to rebut demonstrated elements. In the criminal law context, “the prima facie standard requires evidence of the existence of each and every element.” Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa. Super. 1999), alloc. denied, 560 Pa. 722, 745 A.2d 1220 (1999). However, “The weight and credibility of the evidence are not factors at this stage.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

In the family law context, the term “ ‘prima facie right to custody’ means only that the party has a colorable claim to custody of the child.” McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000). Similarly, in the context of employment law, the Commonwealth Court has opined that a prima facie case can be established by “substantial evidence” requiring the opposing party to affirmatively rebut that evidence. See e.g., Williamsburg Community School District v. Commonwealth, Pennsylvania Human Rights Commission, 99 Pa. Commw. 206, 512 A.2d 1339 (1986).

Courts have consistently interpreted the phrase “substantial evidence” to mean “more than a mere scintilla,” but evidence “which a reasonable mind might accept as adequate to support a conclusion.” SSEN Inc. v. Borough Council of Eddystone, 810 A.2d 200, 207 (Pa. Commw. 2002). In Grakelow v. Nash, 98 Pa. Super. 316 (1929), a tax case, the Superior Court said:

“To ordain that a certain act or acts shall be prima facie evidence of a fact means merely that from proof of the act or acts, a rebuttable presumption of the fact shall be made;... it attributes a specified value to certain evidence but does not make it conclusive proof of the fact in question.”

Class certification is a mixed question of fact and law. Debbs v. Chrysler Corp., 810 A.2d at 154 (Pa. Super. 2002). The court must consider all the relevant testimony, depositions and other evidence pursuant to Rule 1707(c). In determining whether the prerequisites of Rule 1702 have been met, the court is only to decide who shall be the parties to the action and nothing more. The merits of the action and the plaintiffs’ right to recover are excluded from consideration. 1977 Explanatory comment to Pa.R.C.P. 1707. When evidence conflicts, doubt should be resolved in favor of class certification. In making a certification decision, “courts in class certification proceedings regularly and properly employ reasonable inferences, presumptions, and judicial notice.” Janicik, 305 Pa. Super. at 128, 451 A.2d at 454-55. Accordingly, this court must refrain from ruling on plaintiff’s ultimate right to achieve any recovery, the credibility of the witnesses and the substantive merits of defenses raised.

“The burden of proof to establish the five prerequisites to class certification lies with the class proponent; however, since the hearing on class certification is akin to a preliminary hearing, it is not a heavy burden.” Professional Flooring Co. v. Bushar Corp., 61 D.&C.4th 147, 153 (Montg. Cty. 2003), citing Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002); Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982). See also, Baldassari v. Suburban Cable TV Co., 808 A.2d 184, 189 (Pa. Super. 2002); Cambanis v. Nation wide Insurance Co., 348 Pa. Super. 41, 501 A.2d 635 (1985). The prima facie burden of proof standard at the class certification stage is met by a qualitative “substantial evidence” test.

Our Superior Court has instructed that it is a strong and oft-repeated policy of this Commonwealth that, decisions applying the rules for class certification should be made liberally and in favor of maintaining a class action. Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 407, 615 A.2d 428, 431 (1992). See also, Janicik, 305 Pa. Super. at 128, 451 A.2d at 454, citing and quoting Esplín v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968) (“in a doubtful case . . . any error should be committed in favor of allowing the class action”).

Likewise, the Commonwealth Court has held that “in doubtful cases any error should be committed in favor of allowing class certification.” Foust v. SEPTA, 756 A.2d 112, 118 (Pa. Commw. 2000). This philosophy is further supported by the consideration that “[t]he court may alter, modify, or revoke the certification if later developments in the litigation reveal that some prerequisite to certification is not satisfied.” Janicik, 305 Pa. Super. at 129, 451 A.2d at 454.

Within this context, the court will examine the requisite factors for class certification.

I. Numerosity

To be eligible for certification, the appellant must demonstrate that the class is “so numerous that joinder of all members is impracticable.” Pa.R.C.P. 1702(1). A class is sufficiently numerous when “the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain on the energies and resources of the litigants should plaintiffs sue individually.” Temple University v. Pennsylvania Department of Public Welfare, 30 Pa. Commw. 595, 603, 374 A.2d 991, 996 (1977) (123 members sufficient); ABC Sewer Cleaning Co. v. Bell of Pennsylvania, 293 Pa. Super. 219, 438 A.2d 616 (1981) (250 members sufficient); Ablin Inc. v. Bell Telephone Company of Pennsylvania, 291 Pa. Super. 40, 435 A.2d 208 (1981) (204 members sufficient). Appellant need not plead or prove the actual number of class members, so long as he is able to “define the class with some precision” and provide “sufficient indicia to the court that more members exist than it would be practicable to join.” Janicik, 305 Pa. Super. at 132, 451 A.2d at 456.

Between 1994 and 1999, 116,089 individuals purchased and 30,691 leased a Chrysler automobile containing an LA engine. This number does not include those individuals who had their PPG gasket repaired in Pennsylvania or those who purchased or leased a Chrysler automobile in the years 2000 through 2002. 146,780 potential class members is sufficient to satisfy the numerosity requirement.

II. Commonality

The second prerequisite for class certification requires “questions of law or fact common to the class.” Pa.R.C.P. 1702(2). Common questions exist “if the class members’ legal grievances arise out of the ‘same practice or course of conduct’ on the part of the class opponent.” Janicik, supra at 133, 451 A.2d at 457. Thus, it is necessary to establish that “the facts surrounding each plaintiff’s claim must be substantially the same so that proof as to one claimant would be proof as to all.” Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). However, where the challenged conduct affects the potential class members in divergent ways, commonality may not exist. Janicik, supra, 305 Pa. Super, at 133 n.5, 451 A.2d at 457 n.5.

“While the existence of individual questions is not necessarily fatal, it is essential that there be a predominance of common issues shared by all class members which can be justly resolved in a single proceeding.” D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 452, 487 A.2d 995, 997 (1985). In examining the commonality of the class’ claims, a court should focus on the cause of injury and not the amount of alleged damages. As noted by our Superior Court, “Once a common source of liability has been clearly identified, varying amounts of damages among the plaintiffs will not preclude class certification.” See Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431. (emphasis in original) Where there exists intervening and possibly superseding causes of damage however, liability cannot be determined on a class-wide basis. Cook v. Highland Water and Sewer Authority, 108 Pa. Commw. 222, 231, 530 A.2d 499, 504 (1987).

Individual questions of fact predominate among the members of the proposed class. Plaintiffs claim that a common defect in the PPG causes the Chrysler LA engines to develop engine sludge, which ultimately leads to engine failure. However, their own experts have testified that there is no defect common to all LA engines, and that there is variation within the LA engines themselves which makes identifying a common defect impossible. Plaintiffs’ experts also testified that there are many potential causes for engine sludge other than a failed PPG.

Plaintiff is seeking to certify a class of

“All persons/entities who purchased or leased a vehicle equipped with an LA engine (3.9L, 5.2L and 5.9L engines installed on Daimler Chrysler Corp. vehicles between 1992 and 2002) in Pennsylvania; and all persons/entities who purchased or leased a vehicle equipped with an LA engine in another jurisdiction but attempted to have the plenum assembly remedied in Pennsylvania.”

Plaintiff’s four experts have collectively seen 16 total LA engines with a PPG leak, even though the potential class consists of 146,780 people. Expressed as a percentage, engines with known PPG leales constitute .01 percent of the class that plaintiff is seeking to certify.

At the class certification hearing, the plaintiff offered the deposition of Albert Motta, a Chrysler employee in the corporate quality division. Mr. Motta testified that, according to his records, between 5 percent and 10 percent of LA engines manufactured by Chrysler will encounter a PPG leak over the vehicle’s lifetime. Even if a full 10 percent of the PPGs in the LA engines failed at some point, 90 percent of the proposed class would never encounter a problem with their PPG.

Moreover, a PPG failure does not always cause a vehicle’s engine to develop engine sludge, thus leading to engine failure. Plaintiff’s expert, Terry Shaw testified:

“Q: So it’s true is it not, Mr. Shaw, that depending on the severity of the plenum pan gasket leak, the vehicle may or may not develop engine sludge?
“A: Yes.”

At a minimum, 90 percent of class members will never experience engine failure and therefore will not have a cause of action, and at the very most 10 percent may experience a PPG failure over the lifetime of their vehicle. Even if the entire 10 percent experiences PPG failure, only a portion of those who experience PPG failure will also experience the buildup of engine sludge. Moreover, there is no evidence indicating that engines that develop sludge will experience any engine failure.

The plaintiff also includes 3.9, 5.2, and 5.9 liter versions of the LA engine in its proposed class definition. However, there is no design defect with the plenum pan gasket in the 3.9 liter variety of LA engine according to the testimony of plaintiff’s four expert witnesses. At the class certification hearing, Dr. Checkel, an engineering professor with his Ph.D. in engineering from Cambridge University, testified:

“Q: Have you ever seen a plenum pan gasket leak in a 3.9 liter engine?
“A: No.”

Terry Shaw, a graduate of Blaire Automotive Technical Institute, who has a Pennsylvania damage vehicle appraiser’s license, testified:

“Q: Now, are you aware, Mr. Shaw, of ever seeing or hearing or reading of a plenum pan gasket failure in the 3.9 liter engine.
“A: No.”

Plaintiff’s expert Dale Cherry, an auto mechanic who has been working on engines for 15 years, testified that the design of the 3.9 liter LA engine has a completely different plenum pan design than the other two types of engine. He agreed that he had never seen a PPG failure in the 3.9 liter LA engine:

“Q: I think you testified at your deposition, didn’t you, sir, that you had never seen is a plenum pan gasket failure in a 3.9 engine?
“A: That’s correct...
“Q: But in your opinion the 3.9 is to whatever extent, to some extent a different design?
“A: Yes.”

Plaintiff therefore cannot claim a common design defect is responsible for the LA engines when the 3.9 liter engine has a completely different design from the other engines. Owners of 3.9 liter engines have no defect, no problem and therefore no commonality and cannot be part of the class.

Not only are there three types of LA engine, the PPG can be made from three different materials in each engine. Plaintiff’s expert Terry Shaw testified at the certification hearing that there were three different materials used to make the PPG in the LA engine. These three materials are paper, enhanced paper and embossed steel. Mr. Shaw testified that PPG made from embossed steel has never failed:

“Q: Have you ever seen a failure involving the steel gasket?
“A: No.”

Nevertheless, LA engines equipped with an embossed steel PPG which plaintiff’s own expert admitted never fail, are included in the proposed class. Class members driving a vehicle with an embossed steel PPG cannot possibly have common issues with those class members driving vehicles equipped with a PPG made from another material.

Dr. Checkel, plaintiff’s only engineering expert, testified that the development of engine sludge can be from any one of 10 causes other than a failed PPG Dr. Checkel testified that, in addition to a PPG failure, low octane fuel, faulty ignition timing, bad air filters, high temperatures, low humidity, carrying heavy loads, high engine temperature, infrequent oil changes, long idle times and driving at high speeds can cause engine sludge. Accordingly, each individual class member who proves that their engine failed due to engine sludge would still need to prove that the engine sludge was caused by a defective PPG, rather than one of the other 10 alternative causes.

Plaintiff’s experts admit that the only way to determine whether engine sludge is caused by the PPG is by disassembling the engine:

“Q: Now, is there any way to determine, without inspecting the vehicle and taking the engine apart, what caused the formation of engine sludge?
“A: There are tests to find out some of the problems you would have. So for example, there is a diagnostic test if the engine is still running to see if you have a plenum pan gasket leak for example.
“Q: Right, but we have other causes for engine sludge right?
“A: There are other things that lead to contaminated oil and buildup of sludge, that’s right.
“Q: And you can’t tell without examining the vehicle and examining the engine what exactly it was that caused the formation of sludge; isn’t that true?
“A: That’s correct.”
Plaintiff’s expert, Mr. Shaw agreed with Dr. Checkel:
“Q: And in order to determine whether the sludge in an engine is caused by a leaking plenum gasket, or by improper maintenance, or by some other cause, you got to take the engine apart and examine the sludge, don’t you?
“A: Yes.”

Plaintiff has failed to demonstrate that causation can be proven on a class-wide basis as to any subclass. Not only are there multiple alternative sources of engine sludge, causation must be proven on a case-by-case basis by disassembling each individual engine.

Plaintiff claims that there is a common “defect” in the LA engine which causes the PPG to leak, thereby allowing oil into the intake manifold. Plaintiff’s experts, however, cannot identify what is defective in the LA engine. Dr. Checkel, plaintiff’s engineer, stated the PPG problem to be one of economics:

“Q: Is a car that has an LA engine, such as we’ve been discussing here, in your opinion, based on your training and experience, substantially free of defects? . . .
“A: The answer is no, and I can tell you why.
“Q: Please tell me why.
“A: Any repair that costs $4,000 [to] $5,000 to repair, you’re going to lose profits on dozens of cars for every one you have to repair. So if you are sustaining something like five to 10 percent failure rate in warranty, that was not a very good product for the manufacturer, never mind the person who owns it.
“Q: So it’s defective because the company is going to lose money. Is that the testimony?
“A: It’s defective because the company is going to lose money while it’s in warranty and the customers are going to lose money after they failed to provide the warranty. That’s a defect...
“Q: What do you base your opinions on?
“A: That’s simple economics. I guess that’s maybe outside engineering but....”
Mr. Shaw, who is not an engineer, stated that the defect has to do with the PPG material as well as the design of the plate and the fasteners.
“Q: You’ve talked about a defect several times. What is the defect that you’re talking about?
“A: The plenum pan gasket.
“Q: That’s a part. What is the defect?
“A: Defect is that it doesn’t seal.
“Q: That’s a description of what is going wrong. What is the defect?
“A: The defect is that it causes the engine to self destruct.
“Q: That is the result of the description of what goes wrong. What is the defect?
“A: The design of the gasket.
“Q: What’s wrong with the design?
“A: Improper selection of material.
“Q: Is that the defect or is it just the wrong thing?
“A: And the design of the plate and fasteners, the choice of materials they used.
“Q: Do you recall whether you said any of that in your three-page report?
“A: Not that specifically, no, sir.
“Q: But the defect is what, that it’s the wrong material and what, that it’s the wrong material for the fasteners?
“A: The gasket was insufficient for the job they had assigned to it. The fasteners, the location of the fasteners, the design of the plate which was to fasten the gasket so that it would seal the plenum was all mis-engineered and caused problems for years with that engine.”

Finally, Mr. Gustafsan, who is also not an engineer, stated that the defect existed in the plenum pan cover, rather than the plenum pan gasket.

“Q: Do you say in your report that the plenum pan assembly design on the LA engines was defective?

“A: Yes.

“Q: Why do you say that?

“A. I feel the cover itself was the main problem. I feel that.

“Q: What cover?

“A: The plenum pan cover. The plenum pan itself.

“Q: Would you describe for the court what the function of these different parts you’re talking about?

“A: As far I’m concerned, there’s three — there’s four pieces to it. There is a gasket, there is a base and there is 15 bolts. I feel that the cover is not stiff enough, not rigid enough. And this spans between all the bolts, to hold constant pressure on all the areas of gasket around this periphery, around where the gasket lies.

“Q: How does the cover not being stiff enough promote failure of the gasket?

“A: Its design is — that is a flat plate. I feel it should either be a thicker plate or rolled up edges that’s similar to the oil pan on the same engine has rolled edges to make the edge of the pan stiffen Any way at all to make it stiffen It really doesn’t matter what you do, but it has to be stiffer so that it doesn’t have unequal pressures and rises and falls around this periphery.

“Q: Well, that’s my question. What does the unequal pressure do to allow the failure of the gasket?

“A: The unequal pressure allows the fluids or air, oil to leak one way or the other. It doesn’t have pressure on it, it allows leakage.”

Plaintiff’s experts do not agree on any common defect in the Chrysler LA engine. Dr. Checkel suggests the common “defect” among engines is that the manufacturer and car owners will lose money by repairing the gasket. Mr. Shaw hypothesizes that the common defect is somewhere in the gasket material and the plate and fasteners. Finally, Mr. Gustafsan says that the plenum cover is defective. One cannot prove a common defect within the Chrysler LA engine by presenting three contradictory theories.

Plaintiff’s over-inclusive class, as currently defined, does not satisfy the commonality requirement. At a minimum, 90 percent of plaintiff’s class will never have a problem with their PPG. Included in this 90 percent are all owners of Chrysler automobiles with 3.9 liter engines and vehicles whose LA engines contain a steel PPG By the admission of all plaintiff’s experts, these class members will never experience any problems with their engine due to a defective PPG

Those few owners of Chrysler LA engines who experienced engine sludge must show that the sludge was caused by the PPG and not by low octane fuel, faulty ignition timing, bad air filters, high temperatures, low humidity, carrying heavy loads, high engine temperature, infrequent oil changes, long idle times or driving at high speeds. To prove the PPG was faulty, each plaintiff’s engine will have to be completely disassembled. This court may not certify a class of plaintiffs, alleging a class-wide defect, where at the very least, 90 percent of those individuals will never experience a problem with the “defective” part, and that each class member’s engine will have to be disassembled to show the defect.

Accordingly, this court finds that individual questions of law and fact exist, and commonality has not been proven.

III. Typicality

The third step in certification requires the plaintiff to show that the class action parties’ claims and defenses are typical of the entire class. The purpose behind this requirement is to determine whether the class representatives’ overall position on the common issues is sufficiently aligned with that of the absent class members to ensure that pursuit of their interests will advance those of the proposed class members. DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 404, 676 A.2d 1237, 1242 (1996).

Plaintiff is typical only in that he leased a Chrysler vehicle that contained an LA engine. The fact that Mr. Scully, as lead plaintiff, is included in the class definition demonstrates the over-inclusiveness of the proposed class. Mr. Scully leased a new 1998 Dodge Durango in July of 1998. In count four of his complaint, Mr. Scully alleges that defendant breached his express warranty. However, Mr. Scully’s engine did not fail during the warranty period. The engine of his Durango failed after 52,000 miles, which is beyond the warranty period.

Furthermore, the failure in Mr. Scully’s engine occurred shortly after the Durango had been involved in a serious front end collision. After Mr. Scully’s engine failed, he had a new engine put into the Durango After replacing the engine, Mr. Scully purchased the car and subsequently traded it in. No one has ever seen the original engine’s PPG. Mr. Scully no longer owns the vehicle, and no one has ever examined his PPG to determine if it was defective.

Mr. Scully also testified that he never experienced any engine knock. However, plaintiff’s expert Mr. Cherry testified that LA engines with a PPG failure will initially experience engine knock before developing engine sludge.

In addition, Mr. Scully did not follow the recommended procedures for changing his oil. Dr. Checkel specifically testified that infrequent oil changes — not a failed PPG — are a cause of engine sludge.

Even if Mr. Scully was to bring an individual action claiming injury due to a defective PPQ his individual claim would fail because he would be unable to prove that his PPG was defective. No one has ever seen his PPG or will ever see the PPG that was originally installed in Mr. Scully’s vehicle. A class representative cannot be typical if he cannot prove his individual case. He is certainly not typical of those class members who may in fact have a claim. His very membership in this class demonstrates the over-inclusiveness of the class definition. For the reasons stated above, the criterion of typicality contained in Rule 1702(3) has not been met by the proofs presented at the class certification hearing or the record presented therein.

IV. Adequacy of Representation

For the class to be certified, this court must also conclude that the plaintiffs “will fairly and adequately assert and protect the interests of the class.” Pa.R.C.P. 1702(4). In determining whether the representative parties will fairly and adequately represent the interests of the class, the court shall consider the following:

“(1) whether the attorney for the representative parties will adequately represent the interests of the class,
“(2) whether the representative parties have a conflict of interest in the maintenance of the class action, and
“(3) whether the representative parties have or can acquire financial resources to assure that the interests of the class will not be harmed.” Rule 1709.
“Until the contrary is demonstrated, courts will assume that members of the bar are skilled in their profession.” Janicik, 305 Pa. Super. at 36, 451 A.2d at 458. Here, defendants do not challenge plaintiffs’ counsels’ skill and therefore, the court presumes that counsel is skilled in their profession.
“Courts have generally presumed that no conflict of interest exists unless otherwise demonstrated, and have relied upon the adversary system and the court’s supervisory powers to expose and mitigate any conflict.” Janicik, 305 Pa Super. at 136-37, 451 A.2d at 458. Here, defendants did not allege any conflict of interest, and the court assumes the same.

V. Fair and Efficient Method of Adjudication

The final criterion under Pa.R.C.P. 1702 is a determination of whether a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

It is not necessary for this court to consider these remaining requirements for certification since plaintiff has failed to establish commonality and typicality. However, the same considerations that cause commonality and typicality to fail make the matter unmanageable as a class trial.

Having weighed all class certification requirements, this court finds that a class action is not the appropriate method for adjudicating plaintiff’s claims.

CONCLUSIONS OF LAW

(1) The class is sufficiently numerous that joinder of all its members would be impracticable.

(2) Individual questions of fact exist with respect to the class.

(3) Plaintiff’s claims are not typical of the class claims.

(4) The representatives can fairly and adequately represent the class.

(5) The case cannot be suitably managed and tried as a class action.

      . Pl.’s mot. for class certification, ¶18.

      . N.T., Nov. 15,2004, vol. 1, p. 56; N.T., Nov. 16,2004, vol. 2, pp. 14, 57,68.

      . Pl.’s mot. for class certification, ¶25.

      . See dep. of Albert Motta, August 15,2004, p. 13.

      . N.T.,Nov. 16,2004, vol. 2, p. 23.

      . These witnesses included Dr. Checkel, Terry Shaw, Harlan Gustafsan and Dale Cheriy.

      .N.T.,Nov. 15,2004, vol. l,p.56.

      .N.T., Nov. 16,2004, vol. 2, p. 31.

      . N.T., Nov. 16,2004, vol. 2, pp. 72,82.

      . N.T., Nov. 16,2004, vol. 2, pp. 28-30.

      . N.T., Nov. 16,2004, vol. 2, p. 30.

      . No expert testified that the steel PPG was defective.

      . SeeN.T.,Nov. 15,2004, vol. l,pp. 47-49.

      .N.T.,Nov. 15,2004, vol. l,pp. 71-72.

      .N.T., Nov. 16,2004, vol.2,p.41.

      . No testimony whatsoever supports a claim that the 3.9 liter engine or the steel PPG are in any way defective.

      .N.T.,Nov. 15,2004, vol. l,pp. 64-65.

      .N.T.,Nov. 15,2004, vol. l,pp. 145-46.

      . N.T., Nov. 16,2004, vol. 2, pp. 53-54.

      . The record does not demonstrate whether plaintiff’s vehicle had a steel PPG or a 3.9 liter engine which plaintiff’s experts testified were not defective.

      . N.T., Nov. 15,2004, vol. 1, p. 96.

      . N.T., Nov. 15,2004, vol. 1, p. 98.

      .N.T.,Nov. 15,2004, vol. l,pp. 107,108.

      .N.T.,Nov. 15,2004, vol. l,p. 101.

      .N.T.,Nov. 15,2004, vol. l,p. 114.

      .N.T.,Nov. 15,2004, vol. l,p. 113.

      . N.T., Nov. 15,2004, vol. l,p. 110.

      .N.T.,Nov. 15,2004, vd. l,p. 109.


source: Caselaw Access Project

author: MIT J .IN, RJ,

license: Public Domain

text:
    Masco Contractor Services East Inc. v. Hilliard

      Francis J. Deasey, for plaintiff.

      Robert J. Magee, for defendants.
    October 25, 2005
   MIT J .IN, RJ,

Before the court for determination is the preliminary objection of George Caldarelli, administrator of the estate of Nicholas Caldarelli, deceased, to the complaint in this matter seeking declaratory judgment. The declaratory judgment complaint in Count I asks the court to interpret provisions of an insurance policy and a subsequent amendment thereto and to declare that the amendment is valid retroactive to the inception of the policy. The insured and the insurer agreed to the amendment of the insurance policy to retroactively eliminate coverage of an employee who allegedly caused an accident resulting in death and permanent disability while driving drunk. The preliminary objection before the court is a demurrer to Count I of the complaint which asks the court to dismiss the Count. The venue in Forest County for this declaratory judgment action is proper pursuant to Pennsylvania Rule of Civil Procedure 1006(a)(1) as defendant Scott Hilliard is currently an inmate/resident of the State Correctional Institution located in Forest County.

Both Masco Contractor Services and Old Republic Insurance Company are the named defendants in two underlying complaints filed in the Court of Common Pleas of Northampton County concerning a tragic accident that occurred along Route 145 in Upper Saucon Township, Lehigh County. On the evening of October 10, 2003, Nicole Nemeth, along with passenger Nicholas Caldarelli, were traveling southward on Best Avenue in Lehigh County when a 1995 Ford F-250 pickup truck owned by Masco and operated by Scott Hilliard crossed a double yellow centerline causing a head-on collision between the two vehicles. The collision resulted in the death of Mr. Caldarelli and permanently disabled Ms. Nemeth. It was later determined that Mr. Hilliard, a Masco employee, was under the influence of alcohol at the time of the accident.

A business automobile insurance policy identified as policy no. ********was purchased by Masco from Old Republic in June of 2003. The policy provides that “we will pay all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’ ” (Form CA 00 01 10 01, at p. 2.) In addition to this provision, the policy also has restrictive language which states that Old Republic has “no duty to defend any ‘insured’ against a ‘suit’ seeking damages for ‘bodily injury’ or ‘property damage’ ... to which this insurance does not apply.” (CA 00 01 10 01, at p. 2.)

With regard to individuals covered under the June 2003 policy, a “broadening endorsement” was included under Form I which provided for the policy to apply to “additional insured.” Under this portion of the policy, an “additional insured” is defined as “directors, executive officers and employees with respect to the use of any ‘insured’ vehicles or with permission of the named insured.” (Form I). (emphasis added) Under this broadening endorsement, the defendant Scott Hilliard, the driver of the vehicle, would be considered an “additional insured” as an employee of Masco. The policy contains a provision permitting changes which provides:

“This policy contains all the agreements between you and us concerning the insurance afforded. The first named insured shown in the declarations is authorized to make changes in the terms of this policy with our consent. This policy’s terms can be amended or waived only by endorsement issued by us and made a part of this policy.” (IL 00 17 11 98.)

The complaint alleges at paragraph 32 that “[Masco] amended the primary policy by subsequent endorsement, issued after the accident involving Ms. Nemeth and Mr. Caldarelli to delete Form I.” The copy of the endorsement filed with the complaint as part of exhibit A is unsigned and undated, but accepting as true the well-pleaded facts of the complaint, the endorsement was entered by agreement of Masco and Old Republic after the accident of October 10, 2003. In addressing preliminary objections, the court must accept as true all well-pleaded, material facts and any reasonable inferences that we may draw. Duquesne Light Co. v. Department of Environmental Protection, 724 A.2d 413, 416 (Pa. Commw. 1999). The effect of this amendment would be to eliminate the defendant Scott Hilliard as an “additional insured” and the insurer would have no liability for the defendant Scott Hilliard unless the defendant Scott Hilliard fit the definition of “insured” as set forth in the primary policy.

As with other contracts, a court’s duty in interpreting an insurance policy is to ascertain the intent of the parties as manifested in the language of the agreement. Travelers Casualty & Surety Co. v. Castegnaro, 565 Pa. 246, 251, 772 A.2d 456, 459 (2001). Accordingly, courts must “give plain meaning to a clear and unambiguous contract provision unless to do so would be contrary to a clearly expressed public policy.” Prudential Property & Casualty Insurance Co. v. Colbert, 572 Pa. 82, 87, 813 A.2d 747, 750 (2002). Questions of public policy, however, should be scrutinized with utmost care so as not to usurp clearly established principles and standards relating to insurance law. As such, “public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term ‘public policy’ is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy.” Burstein v. Prudential Property & Casualty Insurance Co., 570 Pa. 177, 182-83, 809 A.2d 204, 207 (2002). The Pennsylvania Supreme Court stated in Central Dauphin School District v. American Casualty Company, 493 Pa. 254, 426 A.2d 94 (1981) that

“A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or if the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms. (Quoting Restatement (Second) of Contracts, section 320(1) (now Restatement (Second) of Contract 2d, Session 178(1)).)” Central Dauphin School District, 493 Pa. at 258, 426 A.2d at 96.

We must, therefore, deteimine whether as a matter of law the interest in enforcing the agreement of the insured and the insurer to retroactively alter the provisions of the insurance contract is clearly outweighed in the circumstances by a public policy then in effect against the enforcement of the clause.

We find that public policy expressed in the Motor Vehicle Financial Responsibility Law, which is codified under 75 Pa.C.S. §1701 et seq. “The purpose of the Motor Vehicle Responsibility Law is to require owners of registered vehicles to be financially responsible ... The public policy enunciated by the Motor Vehicle Financial Responsibility Law, ... is to foster financial responsibility for damages caused to individuals on the roadways, not to promote uninsurance.” Donegal Mutual Insurance Co. v. Long, 387 Pa. Super. 574, 586-87, 564 A.2d 937, 943-44 (Pa. Super. 1989). (emphasis added) In Donegal, the court cited with authority Couch On Insurance 2nd (rev. ed.) §45:733 and stated:

“A financial responsibility act is remedial in nature and is therefore to be liberally construed to carry out the declared public policy and achieve the legislative objective. Otherwise stated, liability insurance policies executed, filed, and approved pursuant to the provisions of such statutes will be liberally construed so as to attain the legislative intent to protect the general public from loss by injury or death caused by the negligence of the insured, his agent, his servant or his independent contractor.” Donegal, 387 Pa. Super. at 586 n.4, 564 A.2d at 944 n.4.

In Donegal, the Superior Court further quoted the Missouri Court of Appeals in the case of Allstate Insurance Co. v. Sullivan, 643 S.W. 2d 21 (Mo.App. 1982) in which the court stated:

“While it may be readily conceded that automobile liability insurance policies are contracts, it must also be recognized that they carry public considerations reaching beyond simply the rights of the parties to the contract. It is the public policy of this state to assure financial remuneration for damages sustained through the negligent operation of motor vehicles on the public highways of this state not only by the owners of such automobiles, but also by all persons using such vehicles with the owner’s permission, expressed or implied. The manifestation of this public policy is found in the Motor Vehicle Safety Responsibility Law.” Donegal, 387 Pa. Super. at 587-88, 564 A.2d at 944.

Simply put, Masco and Old Republic wish to avoid providing coverage for an individual who violated the terms of an insurance policy when he operated a vehicle under the influence of alcohol. While the motive to deny coverage is understandable, such an action would undoubtedly violate the public policy concerns expressed in Donegal. In Donegal, the Superior Court was faced with a similar scenario as it was forced to decide whether to invalidate insurance coverage under a rental agreement where the lessor had caused an accident while under the influence of alcohol. Id. at 578-79, 564 A.2d at 939-40. The Donegal court held that, due to widely accepted notions of public policy, “insurers of automobile rental companies should not be permitted to avail themselves of a lessee’s violation of a rental agreement for the purpose of escaping the duty to indemnify persons covered by the policy for liability for injuries to innocent third parties.” Id. at 589, 564 A.2d at 945. So too, an employer should not be permitted to vitiate an insurance policy because an employee violated the agreement by operating a company vehicle under the influence of alcohol.

In spite of the thin line a court must walk when reviewing questions of public policy, this case presents a situation where the enforcement of a “retroactive amendment” would be in direct contradiction to generally accepted public policy and principles of insurance under existing Pennsylvania precedent. Rather than complying with the definition and broadening endorsement agreed to in the June 2003 execution of the policy, the plaintiffs urge the court to give effect to the subsequent endorsement of the policy which would eliminate the driver of the vehicle as an “additional insured.” To do so would clearly contravene the public policy embodied in the Motor Vehicle Financial Responsibility Law laid out in Donegal.

Moreover, the Pennsylvania Supreme Court in Erie Insurance Exchange v. Lake, 543 Pa. 363, 671 A.2d 681 (1996), explained the import of recognizing the rights of third party motorists as a policy ground when it grappled with the common-law issue of policy rescission. In its analysis, the Supreme Court noted that “the distribution of financial risk is a legitimate public policy concern.” Lake, 543 Pa. at 374, 671 A.2d at 686. Accordingly, the effect that automobile insurance has on third parties cannot be overstated as “automobile insurance is not issued solely for the benefit of the individual purchaser.” Id. at 374, 671 A.2d at 686. The Lake court went on to reason that: “[mjotorists carry insurance not only for their own protection, but also, for the benefit of third parties who may suffer through the negligence of the insured motorist. This concept of providing for the foreseeable consequences of driving in today’s society is certainly one of the most important policy considerations prompting the remedial legislation in this area.” Id. at 374, 671 A.2d at 686.

For the foregoing reasons, the court enters the following order:

ORDER

And now, October 25,2005, the defendant Caldarelli’s preliminary objection is sustained. Count I of the complaint is dismissed with prejudice.

A status conference is scheduled for the_day of _, 2005 at_a.m./p.m.


author: BALDWIN, J,

text:
    Vogelsberger v. Magee-Women’s Hospital

      Anthony A. Seethaler, for plaintiff.

      Diane Barr Quinlin, Jennifer Keadle Mason and Anthony J. Williott, for defendants.
    October 4, 2005
   BALDWIN, J,

BACKGROUND

This opinion addresses the cross-appeals filed by defendant Magee-Women’s Hospital of UPMC Health System and plaintiff Michele Vogelsberger in the above captioned case. The pleadings reveal that Ms. Vogelsberger initiated this civil lawsuit against defendants Magee and Anthony F. Gentile M.D. on several theories of recovery, namely, negligence, professional medical negligence and breach of contract on April 30, 2001. Ms. Vogelsberger’s breach of contract claim against Dr. Gentile, however, did not rest on a specific written document, per se, rather it was premised on a verbal understanding that her ovaries were to be removed.

Plaintiff did not assert any claims against either of these defendants based on either a lack of informed consent or a battery. On April 13, 2004, the court granted Dr. Gentile’s motion for summary judgment dismissing the alleged breach of contract claim filed against him.

The jury trial began on January 25, 2005, and concluded on January 31,2005. Following its deliberations, the jury returned a verdict in favor of the plaintiff and against the defendants, and awarded plaintiff money damages from Magee in the amount of $350,000, and from Anthony F. Gentile M.D. in the amount of $250,000.

Defendants each filed timely post-trial motions for relief and briefs in support thereof, under Pa.R.C.P. 227.1. Among the alternative arguments set forth therein, the defendants sought a new trial or a remittitur of the jury’s award of $600,000 in damages because they believed that professional liability was unfounded and the damages awarded were excessive and unjust. Plaintiff also filed a post-trial motion for the calculation of appropriate delay damages. The decision on plaintiff’s motion was viewed as premature and postponed since either an acceptance of remittitur or a new trial on damages were still viable options.

On May 24, 2005, by order of court, the undersigned disposed of the parties’ post-trial motions. If plaintiff rejected the grant of remittitur, then a new trial on damages alone would follow. In granting the remittitur of the jury’s damage awards, the court refused to set aside the verdicts against the defendants as to liability, but did modify the awards in favor of Ms. Vogelsberger and against defendant Magee in the amount of $75,000, and against defendant Dr. Gentile in the amount of $125,000. The jury’s overall award of damages in favor of the plaintiff was thereby reduced from $600,000 to $200,000.

On June 8, 2005, the plaintiff rejected the court’s remittitur of the jury’s award of damages as to both defendants. Consequently, a new trial on damages was to follow on the next trial term. However, Magee and Ms. Vogelsberger filed cross-appeals. Dr. Gentile did not file an appeal.

These appeals contest (1) the court’s decision to remit the jury’s verdict, pursuant to Pa.R.C.P. 1042.72(b); (2) the plaintiff’s subsequent rejection of the remittitur, in accordance with Pa.R.C.P. 1042.72(c); and (3) the resultant grant of a new trial limited to noneconomic damages only. Plaintiff also complains, in her current appeal, that the court erred in previously granting Dr. Gentile’s motion for summary judgment dismissing the alleged breach of contract claim filed against him by order dated April 13, 2004.

Defendant Dr. Gentile filed a motion to quash the plaintiff’s appeal of the order of court dated May 24, 2005. Magee joined Dr. Gentile in that motion. In response thereto, plaintiff has filed a submission for extraordinary relief. The motions to quash were denied without prejudice by a per curiam order of the Superior Court dated August 19, 2005.

For the reasons that follow, the jury’s verdict must stand; the remittitur is correct; the grant of a new trial on damages only is proper; and the court did not previously err in dismissing plaintiff’s breach of contract claim.

FACTS

Dr. Anthony F. Gentile is a doctor of obstetrics and gynecology practicing in Pittsburgh, Pennsylvania. On March 12, 1999, Michele Vogelsberger, age 32, visited the office of Dr. Gentile complaining of pelvic pain, abnormal bleeding and pain with intercourse. Nurse Gregory completed a gynecological history and information form during the March 12, 1999 visit. Ms. Vogelsberger had a history of fibroid uterus and possible endometriosis.

Dr. Gentile first saw Ms. Vogelsberger on April 28, 1999. Following a consultation with the patient, review of the patient history, and review of the notes from gynecologists that had previously treated Ms. Vogelsberger, Dr. Gentile dictated a patient history and the results of a physical stating that a total abdominal hysterectomy and possible bilateral salpingo-oophorectomy would be performed on Ms. Vogelsberger. Dr. Gentile obtained the patient’s informed consent for the surgery.

Dr. Gentile performed a total abdominal hysterectomy on Ms. Vogelsberger at Magee-Women’s Hospital on May 7, 1999. Dr. Gentile deemed it unnecessary to remove Ms. Vogelsberger’s ovaries and a.bilateral salpingo-oophorectomy was not performed.

At some point after the surgery, while in the care of Magee-Women’s Hospital, Ms. Vogelsberger suffered a respiratory arrest and was transferred to the Intensive Care Unit. Ms. Vogelsberger was returned to her regular hospital room the morning after the surgery and respiratory arrest. Ms. Vogelsberger was told by a third party that her ovaries had not been removed.

Ms. Vogelsberger testified that she was upset when she learned of this but she never said anything to Dr. Gentile or complained to his staff or the hospital. Ms. Vogelsberger believed that she and Dr. Gentile had specifically agreed that her ovaries would be removed because her mother had cancer and she was afraid of developing cancer herself. The record fails to show that Dr. Gentile made a specific written agreement with Ms. Vogelsberger. Plaintiff’s ovaries were to be removed only if medically necessary.

From the time of her release until Ms. Vogelsberger began experiencing pelvic pain five years after the May 7, 1999 surgery, she did nothing further.

After consulting with Dr. Deitrick, Ms. Vogelsberger had a laparotomy procedure performed for the removal of her ovaries, tubal ovarian adhesions and her tubes on July 16, 2004.

Plaintiff’s ovaries were healthy at the time of both surgeries.

ISSUES

At the heart of these matters lie the questions of (1) whether the jury’s award of damages is fair and reasonable; (2) whether the jury’s decision shocks the conscience of the court so as to suggest that it resulted from improper influences, partiality, prejudice, mistake or corruption; and (3) whether plaintiff could recover damages for mental anguish and suffering under her alternative claim against Dr. Gentile for breach of an alleged oral contract to perform a particular procedure when the procedure was not performed by the defendant doctor.

ARGUMENTS

Plaintiff asserts that the court abused its discretion in granting a remittitur of the verdict awards in favor of plaintiff and against defendant Magee in the amount of $75,000, and against defendant Dr. Gentile in the amount of $125,000. Plaintiff also argues that Dr. Gentile and she had entered into a contract to remove her ovaries and when he did not remove her ovaries, she claims that she suffered compensatory noneconomic damages, such as mental anguish, although there was no objective evidence of disease impacting her ovaries at any time up to the time of their removal.

DISCUSSION

Remittitur is appropriate where, as here, a defendant health care provider challenges the verdict on the grounds of its excessiveness and the evidence supports defendant’s contention. See 40 P.S. §1303.515. In general, a court shall, in deciding a motion for remittitur, consider evidence of the impact, if any, upon the availability or access to health care in the community, if the defendant health care provider is required to satisfy the verdict rendered by the jury. Id. In analyzing the reasonableness of a damage award, the court should, as here, take into consideration all evidence related to factors such as the cause and severity of the injuiy; the physical or objective manifestation of the injuiy complained of; whether the injury is permanent and/or degenerative in nature; if the complainant’s injury precludes him or her from enjoyment of his or her livelihood or life’s activities in any way; the amount of expenses and costs to be born out-of-pocket; and the demands set forth in the pleadings. Pa.R.C.P. 1042.72(b); and see Carrozza v. Greenbaum, 866 A.2d 369 (Pa. Super. 2004).

Applying these factors to the instant case, the evidence indicates that there is slight physical injury. The evidence also indicates that there is certainly no permanent injury. Plaintiff is only requesting noneconomic damages. Plaintiff is able to enjoy all activities she did prior to the surgery and aftercare. Plaintiff’s only non-economic damages are the four days of additional hospitalization and her allegation of some mental anguish because her ovaries were not removed. Plaintiff has no memory of the respiratory arrest. Because of her reaction to the medication which caused the arrest, other painkillers had to be administered. However, there is no evidence of record to establish that these painkillers were less effective.

Therefore, the court’s remittitur of the jury’s award of plaintiff’s noneconomic damages on these facts is supported by the evidence.

A damage award is excessive if it deviates substantially from what could be considered reasonable compensation. In deciding whether the award deviates substantially from what could be considered reasonable compensation, the court must consider (1) the evidence supporting plaintiff’s claim; (2) factors that should have been taken into account in making the award; and (3) whether the damage award, when assessed against the evidentiary record, strongly suggests that the trier of fact was influenced by passion or prejudice. The factors that this court considered are set forth in the jury instructions as described in Rule 223.3. Pa.R.C.P. 1042.72(b).

While the court finds that the record in this case contains relevant evidence probative to plaintiff’s allegations of pain and suffering, the court is shocked by the amount of damages awarded. The fact-finder may have inadvertently reached its excessive award of noneconomic damages for plaintiff’s compensable injury by attaching undue weight to plaintiff’s fear of future disease, without any basis in fact. Doe v. Raezer, 444 Pa. Super. 334, 664 A.2d 102 (1995), citing, Cashdollar v. Mercy Hospital of Pittsburgh, 406 Pa. Super. 606, 618, 595 A.2d 70, 76 (1991). Krysmalski by Krysmalski v. Tarasovich, 424 Pa. Super. 121, 622 A.2d 298 (1993) (Remittitur proper where evidence of record suggested that excessive verdict was result of, inter alia, a mistake). That injury, and attendant pain and suffering, in the court’s opinion, should neither be trivialized or exaggerated by virtue of the parties’ advocacy. Raezer, supra. A court’s remittitur should affix the highest amount of an award of damages that a jury could properly return based on all of the evidence of record.

The adjusted verdict and award of noneconomic damages is reasonably related to the facts. But for defendant Magee’s negligence, plaintiff either would not have experienced respiratoiy arrest or may not have been hospitalized for an additional four days, and but for defendant Dr. Gentile’s negligence, she may have had no mental anguish.

Defendant Magee contends that the record was devoid of any evidence of a causal link between any alleged negligence and the actual harm suffered by plaintiff. Defendant Magee submits that the plaintiff failed to present sufficiently reliable evidence of a compensable injury due to any conduct directly attributable to it. The court is not persuaded by defendant Magee’s arguments.

By all accounts, the duration of this injury was short-lived. Had the employee of Magee adhered to essential nursing standards of care and followed the medical directive, as ordered, this event may have been prevented. The testimony on this point clearly permits a fact-finder to logically deduce that there is a causal link between plaintiff’s harm and the nurse’s failure to adequately evaluate and attend to this patient, as directed by her treating physician.

Defendant Magee next takes exception to the court’s denial of its motions for the entry of a compulsory nonsuit and, thereafter, for a directed verdict for the same rationale. See e.g., Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990). Defendant Magee further argues that the hospital is entitled to a judgment in its favor, and against the plaintiff, for reasons notwithstanding the verdict. Goldberg v. Isdaner, 780 A.2d 654 (Pa. Super. 2001). Alternatively, defendant Magee argues for a new trial, presumably as to both liability and damages. Plaintiff’s arguments address those points as well.

A review of the evidence of record reveals that plaintiff met her requisite burden of proof. Plaintiff presented sufficient evidence from which a fact-finder could reasonably ascertain that Magee and Dr. Gentile breached the standards of care applicable to her situation and that these deviations or departures from the norm directly contributed to the injuries she sustained while in the care of Dr. Gentile and the healthcare facility. In so doing, plaintiff proved a compensable injury, caused by a respiratory arrest which may have increased her risk of harm even though she has no memory of it, perhaps four additional days of hospitalization and the mental anguish she suffered upon hearing she still had her ovaries. As stated previously, there are no ill effects or permanent injury.

The record supports the court’s grant of a remittitur of the verdict awards in favor of plaintiff and against defendant Magee in the amount of $75,000, and against defendant Dr. Gentile in the amount of $125,000. Compare Petrasovits v. Kleiner, 719 A.2d 799, 806 (Pa. Super. 1998). The record contains sufficient evidence of a causal link between defendants’ negligence and the specific harm suffered by plaintiff.

It is equally clear, for the above stated reasons, that defendant Magee is not entitled to the entry of a compulsory nonsuit against plaintiff, nor a directed verdict, or for that matter any requested post-trial relief, other than a new trial on the issue of damages. Cf., Zeffiro v. Gillen, 788 A.2d 1009 (Pa. Super. 2001). Defendant Magee’s arguments to the contrary simply are not persuasive. The verdict as to liability reached by the jury based on the competent and credible evidence presented is not against the sufficiency or weight of that evidence.

The record further demonstrates that Ms. Vogelsberger wanted her healthy ovaries removed because her mother had cancer. No other female family member had cancer. All parties agree that Ms. Vogelsberger had no evidence of cancer. Plaintiff’s claim of suffering thus consists of her mental anguish or fear of contracting cancer after learning that Dr. Gentile failed to remove her healthy ovaries. Accordingly, the jury’s monetary award of noneconomic damages to the plaintiff is excessive because it is against the weight of this probative evidence, as discussed previously, and due to the fact that it strongly suggests that the jury was influenced to some extent by passion or prejudice. The jury’s award of noneconomic damages shocks the conscience in that it is not reasonably related to the proven causal injury, especially in consideration of the totality of the evidence as to the established liability of each of these defendants. See e.g., Bindschusz v. Phillips, 771 A.2d 803, 813 (Pa. Super. 2000).

Plaintiff, finally, complains that the court erred in previously granting Dr. Gentile’s motion for summary judgment dismissing the alleged breach of contract claim filed against him by order dated April 13, 2004. This court disagrees with plaintiff’s final argument. Pennsylvania law is clear that in the absence of a batteiy claim, which plaintiff did not plead, a breach of contract action against a physician for failure to perform a service will not lie where the factual averments essentially sound in professional negligence. See Grabowski v. Quigley, 454 Pa. Super. 27, 684 A.2d 610 (1996).

In Grabowski, the court, in determining a motion for summary judgment, held that based upon 40 P.S. §1301.606, a special contract in writing was not necessary to make the health care provider a warrantor or guarantor of a cure, because Grabowski had not alleged a warranty theory or failure to obtain a specific result. Rather, Grabowski alleged that he and the doctor had entered into an oral contract whereby the doctor specifically promised that he would perform the surgery, and the doctor did not in fact perform the surgery. There, the patient consented to a procedure based on the doctor’s representations only to learn afterwards that the procedure was not performed by the doctor, pursuant to that informed consent. The Grabowski court determined that the plaintiff need not establish the existence of a written contract in order to recover from the physician under the breach of contract claim because the factual averments in support of the plaintiff’s allegations of breach of contract were distinct from plaintiff’s medical negligence claim and also sounded in battery. That is not the case here. Distinguish, Grabowski.

On appeal, the Pennsylvania Superior Court concluded that the trial court in Grabowski incorrectly reasoned that there were no genuine issues of material fact in regard to whether the physician non-negligently breached the alleged oral contract. Again, that is not the case here.

Ms. Vogelsberger, unlike the plaintiff in Grabowski, did not allege any battery. Ms. Vogelsberger, in the alternative, alleged that Dr. Gentile was professionally negligent for failing to remove her ovaries during the surgery. Dr. Gentile did not enter into a specific written agreement to remove Ms. Vogelsberger’s ovaries.

Plaintiff’s complaint sets forth facts suggesting that Dr. Gentile committed professional negligence by negligently failing to remove plaintiff’s ovaries. Plaintiff’s complaint, alternatively, sets forth similar facts suggesting that Dr. Gentile breached a promise he made to plaintiff by failing to remove plaintiff’s ovaries. The gist of the action doctrine denotes that when allegations premised on a tort are the crux of a plaintiff’s legal theory of recovery against a defendant, any alternative theory of recovery, i.e., one premised on a claim for breach of contract, usually cannot survive a motion to dismiss, if the material averments rely on the same facts.

Because the accusations concerning Dr. Gentile’s alleged breach of contract are, in essence, the same averments of his failure to adhere to pertinent professional standards of medical care, the gist of plaintiff’s action to recover noneconomic damages against him was in the nature of a claim for professional negligence. The facts of record clearly do not support plaintiff’s claim for noneconomic damages under a breach of contract.

In the case at bar, the duty, breach (failure to perform), and cause of the noneconomic injuries for which a monetary recovery was sought rests squarely on the material evidence supporting the claim of medical malpractice, and not the breach of contract claim for failure to render a service that was not guaranteed. The record establishes that Dr. Gentile did not remove plaintiff’s ovaries since it was not medically necessary.

If Dr. Gentile had agreed to perform this elective surgery because of plaintiff’s cancer concerns and then failed to perform the procedure or at least explain why he failed to perform the procedure, the jury could find him professionally negligent based on the expert’s testimony that this was a breach of professional standards. In that scenario, the jury could conceivably award plaintiff money damages for any mental anguish and suffering caused thereby under this theory of recovery.

Based on the instant record, the court did not err in dismissing plaintiff’s breach of contract claim against Dr. Gentile.

CONCLUSION

Since the undersigned properly denied all other post-trial motions filed by the respective parties and because plaintiff rejected the court’s remittitur of the jury’s verdict, the grant of a new trial to exclusively dispose of the issue of damages is warranted.

The court’s order dated May 24, 2005 should be affirmed.

      . There are numerous cases mostly concerned with asbestos exposure which consistently hold that a plaintiff cannot recover damages based on fear or speculation. Busfield v. A. C. & S. Inc., 434 Pa. Super. 424, 643 A.2d 1095 (1994) (No claim formental anguish based on fear of cancer). The basis of the instant case is different.

      . Although 40 P.S. §1301.606 has since been repealed, this court notes that 40 P.S. §1303.105 contains the same requirement that “in the absence of a special contract in writing, a health care provider is neither a warrantor nor a guarantor of a cure.”


author: LESKINEN, J,

text:
    Commonwealth v. Hamborsky

      Nancy Duffleld Vernon, district attorney, for Commonwealth.

      Samuel J. Davis, for defendant.
    September 28, 2005
   LESKINEN, J,

Before the court is the Commonwealth’s petition for bond revocation. The Commonwealth did not present evidence at either of two bond hearings that establishes that the “proof is evident or presumption great” that the defendant will be convicted of murder in the first or second degree. Under Article I, Section 14 of the Pennsylvania Constitution, therefore, the request to revoke bail must be denied. Because the precise meaning of Article I, Section 14 has never been made clear under the circumstances presented here, and because the parties in this case vehemently disagree on that meaning, this opinion follows.

Catherine Hamborsky is charged with arson, abuse of a corpse and criminal homicide. The victim was Thomas Lesniak, whose body was found in the burned-out and still smoldering remains of the small “hometown” tavern in Everson where he had worked. Based on a thorough investigation, the state police concluded that Hamborsky was involved in the death and the fire, and filed the instant charges. The district justice originally set no bond.

After the preliminary hearing Hamborsky filed a petition for bond with this court. The first bond hearing was held on March 8, 2005. At that hearing, the Commonwealth presented no testimony, while the defendant testified on her own behalf. The attorney for the Commonwealth stipulated on the record that the court was required to set reasonable bail under Article I, Section 14 of the Pennsylvania Constitution because it was not likely that the defendant would be convicted of an offense for which the maximum sentence is life imprisonment. Upon this court’s request, a transcript of the preliminary hearing was provided by the defense and received in evidence.

Based on the Commonwealth’s stipulation, this court granted bail in a bond order entered March 10, 2005. Without any request from the Commonwealth, however, but because of the severity of the charges, this court deferred setting the conditions of bail and ordered the Pretrial Services Division of the Fayette County Adult Probation Office to conduct a home assessment to determine if the defendant could effectively be supervised while on bail using home confinement with electronic monitoring. On March 22, 2005, this court set bail at $50,000 with an additional special condition that she remain in home confinement with electronic monitoring.

The very next day, on March 23, 2005, the prosecution filed a petition for bond revocation. The petition was filed based on the claim that at the bond hearing held on March 8, 2005 “[a]n assistant district attorney relied upon the assertions of defense counsel that the defendant was unlikely to be convicted of first-degree murder. This statement was in error.”

At the first bond hearing, defense counsel stated that “I know that District Attorney Nancy Vernon, in my discussions with her and as an officer of the court I am making this representation to you, judge, that she did indicate that she thought that bail was appropriate in this case.” This statement was corroborated by a notation the district attorney made on the Commonwealth’s copy of the defendant’s motion for bond: “ask for $200,000.” Asking that bail be set at $200,000 constitutes an obvious concession that the offense is bailable. In the petition for bond revocation, the Commonwealth repeated the request “that bail, if granted, be in the amount of not less than $200,000 straight cash with all other conditions of record.”

Rule 529 of the Pennsylvania Rules of Criminal Procedure, entitled Modification of bail order prior to verdict, reads in pertinent part:

“(C) Once bail has been set or modified by a judge of the court of common pleas, it shall not thereafter be modified except
“(1) by a judge of a court of superior jurisdiction, or
“(2) by the same judge or by another judge of the court of common pleas either at trial or after notice to the parties and a hearing.”

Rule 529 contains no explicit requirement that there be a change in circumstances to justify modification of bail, although this is the first time the undersigned has ever seen a request to modify bail without a change of circumstances.

The Commonwealth argues that Article I, Section 14 of the Pennsylvania Constitution automatically excludes persons charged with first- or second-degree murder from bail, and that it was error to grant bail at all. It would have been better, obviously, if this argument had been presented at the hearing on March 8,2005, or if the Commonwealth had addressed this alleged “error” between March 10 (when bail was granted), and March 22 (when the conditions of bail were set).

A second bail hearing was held on April 29, 2005, with the Commonwealth’s only competent evidence being testimony that the deceased was reputed to be a peaceful, law-abiding person. Both parties submitted authority on May 13, 2005, each arguing for a different interpretation of Article I, Section 14 of the Pennsylvania Constitution.

The evidence presented to the court reveals that Hamborsky and her husband first went to the tavern where the decedent, Lesniak, tended bar on January 3, 2005. They subsequently went home and Mr. Hamborsky went to bed. Mrs. Hamborsky then returned to the tavern in the early morning hours of January 4, 2005. After the only other remaining patron left the tavern, a problem arose between Hamborsky and Lesniak.

After giving two statements to the police wherein she denied any knowledge of the facts surrounding the death of Lesniak, Hamborsky was confronted with: (1) a witness statement identifying her as the last person seen with Lesniak alive, and (2) evidence that the gas can left at the scene of the arson was hers. As a result, on January 6, 2005, she gave police a tape-recorded statement in which she admitted stabbing and shooting the decedent, but claimed self-defense. Hamborsky said that Lesniak first attempted to procure “sexual favors” from her in exchange for a $58 “tab” she and her husband had accrued; and that when she refused, Lesniak attempted to rape her. She said she was forced onto her back on the floor, and Lesniak was crawling up the front of her body, when she took his knife and stabbed him, and then took his gun and shot him. Lesniak was a very large man, while Hamborsky is a smaller than average woman. Hamborsky had bruises on her buttocks and cuts on her hands, and the injury locations on the deceased were consistent with her claim of self-defense. Moreover, the complete incineration of Lesniak’s clothing despite the floor under his body being undamaged by fire is consistent with her claim that he dropped his pants before or during the altercation. The limited portions of the autopsy report presented to this court indicate that Lesniak was shot five times, but those wounds were not listed as the direct cause of death, which was instead “hypertrophic cardiomyopathy.” After the altercation, Hamborsky threw Lesniak’s gun into nearby Jacob’s Creek, got the gas can, returned to the tavern, doused it with gasoline and burned it. She was arrested shortly after making the recorded statement.

Article I, Section 14 of the Pennsylvania Constitution is entitled “Prisoners to be bailable; habeas corpus.” In pertinent part, the section provides that:

“All prisoners shall be bailable by sufficient sureties, unless for capital offenses or for offenses for which the maximum sentence is life imprisonment or unless no condition or combination of conditions other than imprisonment will reasonably assure the safety of any person and the community when the proof is evident or presumption great . . . .” Pennsylvania Constitution Article I, Section 14. (emphasis added) This section was made applicable “for offenses for which the maximum sentence is life imprisonment----” by a constitutional amendment approved on November 3, 1998.

In support of its argument that this provision automatically excludes bail for Hamborsky, the Commonwealth submitted a one-page order of the Pennsylvania Superior Court in Commonwealth v. Munchinski, no. 1731 WDA2004. The Commonwealth’s reliance on this order, however, is inappropriate. In the instant case, the defendant, who is presumed innocent as she has not been proven guilty, is requesting pretrial bail. In contrast, Munchinski had already been convicted and was requesting bail pending his appeal. When considering whether to grant Munchinski’s request for bail, the Pennsylvania Superior Court noted that Munchinski “still had to be considered to be convicted of his crimes” because the appeal automatically gave rise to a supersedeas in the Commonwealth’s favor. Commonwealth v. Munchinski, no. 1731 WDA 2004. As such, the Superior Court found that Munchinski was not bailable under Article I, Section 14. Because of this very significant distinction, Munchinski does not support the Commonwealth’s argument.

The defendant argues that the Commonwealth’s interpretation of Article I, Section 14 would violate the Eighth Amendment to the United States Constitution (“Excessive bail shall not be required . . . .”), which is applicable to the Commonwealth pursuant to the Fourteenth Amendment. Therefore, this court must decide whether automatic denial of bail based solely on the potential penalty is a violation of the Eighth Amendment. Neither party has presented direct precedent on this issue.

Several federal circuit courts have addressed related issues. In United States ex rel. Covington v. Coparo, infra, the defendant was held without bail upon an indictment returned by a New York county grand jury charging him with a triple murder in the first degree. The defendant argued that he had an absolute right to bail under the Eighth Amendment. The Second Circuit found that:

“ ‘The state legislature may define types of crimes so that bail is not mandatory in all cases, leaving the determination of whether an accused is a good bail risk for courts to decide in the exercise of their sound discretion.’ People ex rel. Shapiro v. Keeper of City Prison, 290 N.Y. 393, 49 N.E.2d 498 (1943).” United States ex rel. Covington v. Coparo, 297 F. Supp. 203, 206 (D.N.Y. 1969).

The court noted that: “the basic purpose of bail remains whether, in the light of the nature of the charge and other significant factors, an accused will appear for trial and submit to sentence upon conviction.” 297 F. Supp. 203,206 (D.N.Y. 1969) citing Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1 (1951).

As did the Covington court, several federal circuit courts have held that “the Eighth and Fourteenth Amendments do not require that a state grant bail in all cases as a matter of right ... a state constitution may constitutionally provide that bail is granted in some cases as a matter of right and denied in others, provided that the power is exercised rationally, reasonably and without discrimination.” 297 F. Supp. 203, 206 (D.N.Y. 1969) citing the following cases: Mastrian v. Hedman, 326 F.2d 708, 710-11 (8th Cir.), cert. denied, 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982 (1964); United States ex rel. Hyde v. McMann, 263 F.2d 940, 943 (2d Cir.), cert. denied, United States ex rel. Hyde v. LaVallee, 360 U.S. 937, 79 S.Ct. 1462, 3 L.Ed.2d 1549 (1959); United States ex rel. Fink v. Heyd, 287 F. Supp. 716, 717-18 (E.D. La. 1968); Wansley v. Wilkerson, 263 F. Supp. 54, 57 (W.D. Va. 1967). Cf. People ex rel. Shapiro v. Keeper of City Prison, 290 N.Y. 393, 398, 49 N.E.2d 498 (1943). See also, Bitter v. United States, 389 U.S. 15, 16, 88 S.Ct. 6, 19 L.Ed.2d 15 (1967); Rehman v. California, 85 S.Ct. 8, 13 L.Ed.2d 17, 18-19 (1964) (Douglas, Cir. J.); Carbo v. United States, 82 S.Ct. 662, 7 L.Ed.2d 769, 774 (1962) (Douglas, Cir. J.); Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed.2d 683, 686 (1961) (Harlan, Cir. J.).

While these cases clearly hold that bail is not mandated in every case, they also hold that the power to deny bail must be “exercised rationally, reasonably, and without discrimination.” Pretrial punishment is not permissible. The purpose of bail is to assure the defendant’s appearance at trial. The possible penalty is certainly relevant, but it is only one of many significant factors bearing on that. Automatic denial of bail based solely on the possible penalty would be irrational, unreasonable, and discriminatory.

Pa.R.C.P. 523 is consistent with the Eighth Amendment, and summarizes the significant factors:

“(A) To determine whether to release a defendant, and what conditions, if any, to impose, the bail authority shall consider all available information as that information is relevant to the defendant’s appearance or nonappearance at subsequent proceedings, or compliance or noncompliance with the conditions of the bail bond, including information about:
“(1) the nature of the offense charged and any mitigating or aggravating factors that may bear upon the likelihood of conviction and possible penalty;
“(2) the defendant’s employment status and history, and financial condition;
“(3) the nature of the defendant’s family relationships;
“(4) the length and nature of the defendant’s residence in the community, and any past residences;
“(5) the defendant’s age, character, reputation, mental condition, and whether addicted to alcohol or drugs;
“(6) if the defendant has previously been released on bail, whether he or she appeared as required and complied with the conditions of the bail bond;
“(7) whether the defendant has any record of flight to avoid arrest or prosecution, or of escape or attempted escape;
“(8) the defendant’s prior criminal record;
“(9) any use of false identification; and
“(10) any other factors relevant to whether the defendant will appear as required and comply with the conditions of the bail bond.
“(B) The decision of a defendant not to admit culpability or not to assist in an investigation shall not be a reason to impose additional or more restrictive conditions of bail on the defendant.” (emphasis supplied)

Notably, the “possible penalty” is only one of the many factors enumerated.

Article I, Section 14 of the Pennsylvania Constitution states certain specific situations that justify complete denial of bail. Of course, if a state’s constitutional provision conflicts with the United States Constitution, the state’s provision must yield. But if it is possible to construe Article I, Section 14 in a way that is consistent with the Eighth Amendment, such a construction must be adopted. Clearly, when the “proof is evident and the presumption great” that a defendant will be convicted of a crime with mandatory life imprisonment as the penalty, the chances are higher that the defendant will try to flee. In such cases, Article I, Section 14 acknowledges the fact that there is no amount of money that would reasonably ensure such a defendant’s presence at trial, and provides that bail must be refused. However, that refusal is not “excessive bail” in violation of the Eighth Amendment because the refusal is not automatic; but depends on the finding that the “proof is evident or presumption great” that the defendant will be sentenced to life imprisonment, and thus has a strong motive to flee.

Long ago, the Supreme Court of Pennsylvania held that “when the proof is evident or presumption great,” meant “that if the Commonwealth’s evidence which is presented at the bail hearing, together with all reasonable inferences therefrom, is sufficient in law to sustain a verdict of murder in the first degree, bail should be refused.” Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 400-401, 195 A.2d 97 (1963). (citations omitted) (footnote omitted) Unfortunately, that statement is dicta relative to the circumstances presented here, and can be misread to reduce the requirement that “the proof is evident or the presumption great” to just a prima facie case. (The test of a prima facie case and the test of sufficiency of the evidence to sustain a jury’s verdict are currently identical.) Under such a reading, the common pleas court would have no decision at all to make on bail. If a defendant was charged with first- or second-degree murder, and the district justice found sufficient evidence to bind the case for trial, bail would automatically be prohibited. Such an interpretation makes much of Article I, Section 14 mere surplusage. (See the learned opinion of the Honorable Judge William J. Ober in Commonwealth v. Long, no. 4201 C 1999 (Westmoreland C.C.P. 2002); and the learned opinion of the Honorable President Judge Daniel L. Howsare in Commonwealth v. Ebersole, 106 C 2003 (Bedford C.C.P. 2003).)

A close reading of Alberti reveals, however, that the Supreme Court specifically made bail depend upon: “evidence which is presented at the bail hearing. . . A separate bail hearing is necessary because potential defenses are not considered at a preliminary hearing. Preliminary hearings address the mere sufficiency of the Commonwealth’s evidence, while the Eighth Amendment to the United States Constitution requires that bail be based on the likelihood of conviction, and how that bears on the likelihood of flight. As a result, potential defenses must be considered at a bail hearing.

As an extreme example, a defendant could be charged with first-degree murder because he shot an armed robber who was threatening to kill him. Because the use of a deadly weapon sufficiently establishes the specific intent to kill required for first-degree murder, there would be sufficient prima facie evidence to hold the charge for trial even if the proverbial “busload of bishops” stood ready to testify that it was justifiable self-defense. Despite sufficient evidence to convict, however, the likelihood of conviction would be so low that flight would not be a serious risk. New would argue that such a defendant should be required to await trial in jail. Article I, Section 14 does not mandate automatic denial of bond in such circumstances. As a result, the Supreme Court’s test requires evaluation of all of the evidence “presented at the bail hearing ....”

The Commonwealth’s own evidence sets forth that Hamborsky stabbed and shot the victim because she did not want to get raped or killed. Once self-defense has been raised, the Commonwealth must prove beyond a reasonable doubt that the defendant was not acting in justifiable self-defense. Disproving self-defense becomes an additional element of the offense.

‘“Self-defense, if justifiable, is a complete defense to the charge. The Commonwealth has the burden of proving beyond a reasonable doubt that the defendant did not act in justifiable self-defense.’ (Pa. SSJI (Crim) vol. I, §9.505.) (See also, Commonwealth v. Samuel, 527 Pa. 298, 303, 590 A.2d 1245, 1247 (1991); Commonwealth v. Upsher, 497 Pa. 621, 624, 444 A.2d 90, 91 (1982); and Commonwealth v. Torres, 564 Pa. 219, 766 A.2d 342 (2001).)

“Because the Commonwealth has the burden of disproving the defense of justification, you may find the defendant guilty only if you are satisfied beyond a reasonable doubt that (s)he did not reasonably believe that the use of deadly force was then and there necessary to protect herself against (death) (serious bodily injury) (kidnapping) (sexual intercourse compelled by force or threat). In other words, if you are satisfied beyond a reasonable doubt that the defendant was not reasonable in her belief that the use of deadly force was then and there necessary to protect herself from the danger of (death) (serious bodily injury) (kidnapping) (sexual intercourse compelled by force or threat), then you may find the defendant guilty. (Pa. SSJI (Crim) vol. I, §9.505E.)”

Here, there is no direct evidence that the defendant was not acting in self-defense. The circumstantial evidence of record includes only Lesniak’s reputation for being peaceful and law-abiding and Hamborsky’s conduct that arguably shows “consciousness of guilt.”

Hamborsky claims she threw away the gun, burned the bar and concealed the truth from the police because she panicked and because she wanted to “cover everything up,” even though she was acting in justifiable self-defense. Given the opposing arguments concerning this evidence, the court must evaluate the other evidence “presented at the bail hearing” to evaluate the likelihood the Commonwealth will successfully disprove justifiable self-defense at trial.

Hamborsky stated that she did not bring the gun to the tavern. At the time of the preliminary hearing, the Pennsylvania State Police Gun Record Sales System indicated that there were three guns registered to Lesniak, including a Smith & Wesson .38 caliber; a .22 caliber HRTM and a .40 caliber SR. Up to this point, there is no evidence that Hamborsky is lying about the gun she used being owned by Lesniak.

Hamborsky said that she was on her back on the bar floor and that Lesniak was trying to crawl up on top of her body. At the preliminary hearing, the trooper testified that the autopsy report and the location of the bullet wounds are consistent with her statement.

Hamborsky said that when she shot Lesniak he had his pants partially down. Lesniak’s clothes were completely burned off. The fire marshall testified that Lesniak’s body had not been moved prior to his arrival on the scene, because the floor area underneath the body had not been damaged by fire. The front part of pants that were up would not be completely burned off. This corroborates Hamborsky’s statement that Lesniak’s pants were down. In turn, this is consistent with her claim of attempted rape justifying self-defense.

As noted above, Hamborsky said that during the struggle she fell to the floor and that Lesniak was on top of her. On January 6, 2005, just two days after the incident occurred, there was bruising around the defendant’s buttocks and lower back area that a female trooper photographed. Likewise, Hamborsky said that she took a knife from Lesniak. On January 6, 2005, the defendant had cuts on her fingers, and pictures were also taken of them. This evidence could also corroborate her claims of self-defense.

The uncontradicted evidence “presented at the bail hearing” is that the relatively diminutive Mrs. Hamborsky was in a physical struggle with a 300- to 350-pound man armed with a gun and a knife. The Commonwealth may have other evidence it is saving for trial, but no court can base a decision on speculation about evidence that was not presented.

Based on the evidence “presented at the bail hearing,” the Commonwealth has not shown that the “proof is evident or presumption great” that Hamborsky did not act in self-defense. Accordingly, the defendant is bailable under Article I, Section 14 of the Pennsylvania Constitution.

That said, this court must now determine whether the Commonwealth has proved that the amount or conditions of bail should be modified. This defendant’s family has posted a significant amount of bail, and it appears that her parents, her husband, and her two minor children will lose their home if she fails to appear for trial. She is a long-term resident of this area, and has no known friends or relatives outside Pennsylvania. She has been subject to home confinement since March 22, 2005. She has had no bail violations, and has appeared at all scheduled court hearings. She has no prior criminal history. There is no allegation that new criminal activity has occurred, or that any person or the community has been threatened or harmed.

The Commonwealth’s petition requests that bond be set at $200,000. That figure is evidently a standard amount routinely suggested in criminal homicide cases. Here, setting bond at $200,000 would be equivalent to denying bail altogether. There has been no evidence presented to show that the defendant and her family would be able to post such a large amount. Setting bond at $200,000 would be a charade that would only thinly disguise the denial of the defendant’s constitutional right to reasonable bail under the Eighth Amendment of the United States Constitution.

This court is not permitted to deny bail because the “proof is evident and the presumption great” that the defendant will be convicted of arson and abuse of a corpse. Bail can only be denied if the “proof is evident and the presumption great” that the defendant will be convicted of first-degree murder and sentenced to life in prison. The reasons set forth in this court’s bail bond orders of March 10, 2005 and March 22, 2005, are incorporated herein by reference. Based on the reasons set forth therein, and the record presented to date, this court believes that the bond amount and conditions set on March 22,2005, are sufficient to “reasonably assure defendant’s future appearance.” As a result, the Commonwealth’s petition for bond revocation must be denied.

ORDER

And now, September 28, 2005, for the reasons set forth above, it is hereby ordered and directed that the Commonwealth’s petition for bond revocation is denied.

      . This court has considered the footnote in Commonwealth v. Ebersole, 106 C 2003 (Bedford Cty. C.C.P. 2003) which states: “In determining that this is the appropriate standard we agree with the opinion of Judge Ober of the Westmoreland County Court of Common Pleas in Commonwealth v. Long, no. 4201 C 1999 (Westmoreland Cty. C.C.P. 2002). Like Judge Ober, we also recognize that, in Commonwealth v. Heiser, 330 Pa. Super. 70, 478 A.2d 1355, 1356 (1984), the Superior Court states that the Commonwealth “can satisfy its burden to prove that a defendant is not entitled to bail by establishing a prima facie case of murder in the first degree.” (footnote omitted) However, like Judge Ober, we find that this is not an accurate or controlling statement of law in determining whether an offense is bailable.
      The prima facie standard is lower than the one announced by the Supreme Court in Alberti. And as Judge Ober noted “to support its conclusion that the Commonwealth merely needed to present a prima facie case, the Heiser court cited to Commonwealth v. Farris, 443 Pa. 251, 278 A.2d 906 (1971). Farris, however, is a case where the Supreme Court, without any analysis or a discussion of Alberti, made the statement that bail was properly denied because a prima facie case of murder was presented at a delinquency hearing. This court does not believe the Supreme Court’s use of the words ‘prima facie’ in Farris was intended to set forth a new test or to establish a lower level of proof other than required by Alberti.” Furthermore, the prima facie standard is what is used in determining a habeas corpus petition. We believe it would be improper to use the prima facie standard in the bail issue because doing so would essentially be a ruling on a habeas corpus before such petition has even been filed.”