author: GOLDBERG, J.,

text:
    Commonwealth v. Mullins

      C.P. of Bucks County,
    no. 2003-04098.

      Robin P. Campbell, for plaintiff.

      Charissa Liller, Christa S. Dunleavy and Ann P. Russavage-Faust, for defendant.
    BEFORE: RXJFE, J.J., CEPPARXJLO AND GOLD-BERQ JJ.

    February 14,2005
   GOLDBERG, J.,

This opinion is written pursuant to Thomas Mullins’ (petitioner) post-sentence motion challenging the constitutionality of the Pennsylvania Registration of Sexual Offender’s Act, commonly known as Megan’s Law II. The primary issues presented by petitioner are whether: (1) the absence of judicial review for the lifetime reporting, notification and counseling provisions of the Act render Megan’s Law

11 unconstitutionally excessive and (2) whether Megan’s Law II is unconstitutionally vague.

PROCEDURAL HISTORY

Petitioner was originally charged with involuntary deviate sexual intercourse and related offenses. These charges were brought as a result of petitioner’s molestation of his 12-year-old stepdaughter. (N.T. 11/12/03, p. 89.) On November 12, 2003, petitioner pled guilty to these charges and was subsequently sentenced to six to 12 years incarceration.

In summary, the facts of the record at the guilty plea hearing reflect that petitioner began to sexually assault his stepdaughter when she was between first and second grade. (N.T. 11/12/03, p. 117.) Specifically, while the victim’s mother was away on business trips, petitioner forced her to perform oral sex on him and to manually stimulate his penis. (N.T. 11/12/03, p. 117.) During these assaults, petitioner took off all of his clothing and persuaded the victim to also remove her clothing. (N.T. 11/ 12/03, p. 117.) At the conclusion of these encounters, petitioner would ejaculate in a towel, telling his victim that this will “make us seem more like a family” and that “every dad and daughter does it.” (N.T. 11/12/03, pp. 117-18.) On at least one occasion, petitioner rubbed the victim’s vagina and tried to place his finger inside, but the victim stopped him after he had gotten past the labia of her vagina. (N.T. 11/12/03, pp. 117-18.) On other occasions, petitioner also forced the victim to view pornographic movies, during which he masturbated in front of her. (N.T. 11/12/03, p. 118.)

On May 7, 2004, a hearing was held before the Honorable Mitchell S. Goldberg on the Commonwealth’s motion that petitioner be classified as a sexually violent predator (SVP). At the conclusion of this hearing Judge Goldberg found that the Commonwealth had proven by clear and convincing evidence that petitioner was an SVP. Petitioner filed post-sentence motions on May 20,2004, seeking reconsideration of the finding of SVP status and requested a hearing to challenge the constitutionality of Megan’s Law II. This hearing was held on September 28, 2004, before Judge Goldberg and continued to November 4, 2004. At these hearings, Dr. Timothy Foley testified as petitioner’s expert witness and Dr. Veronique Valliere testified as the Commonwealth’s expert witness. Thereafter, oral argument was held before a three-judge panel of the Bucks County Court of Common Pleas— the Honorable John J. Rufe, the Honorable Albert J. Cepparulo, and the Honorable Mitchell S. Goldberg. Numerous briefs and supplemental materials were submitted by petitioner, the Commonwealth and the Philadelphia Public Defender’s office, which filed an extensive amicus curiae brief to assist this court in deciding the instant matter.

This opinion will consider only the constitutionality of Megan’s Law II as it relates to the statute’s lack of judicial reviewability of the SVP finding and whether the statute is unconstitutionally vague in its imprecision of terms or its method of prediction.

The Pennsylvania Supreme Court decided the constitutionality of the lifetime registration, notification and counseling requirements, with no subsequent judicial review, in Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003) (Williams II). To address the concerns raised by the Supreme Court in Williams II, we granted petitioner and Commonwealth an opportunity to offer evidence regarding whether Megan’s Law II is excessive as a civil statute and, thus, unconstitutionally punitive. After review of the evidence presented, we find that petitioner has not produced sufficient evidence to satisfy the burden established by Williams II and, accordingly, on the record before us, we uphold the constitutionality of Megan’s Law II.

Petitioner’s claim that Megan’s Law II is unconstitutionally vague must also be rejected by this court because the precedent established in Commonwealth v. Howe, 842 A.2d 436 (Pa. Super. 2004), cannot be disturbed on the record before us. Finally, petitioner’s contention that Megan’s Law II is unconstitutionally vague based on the unreliability of the methods used by the Sexual Offenders’Assessment Board (SOAB) in assessing SVP status is likewise rejected based on the insufficiency of evidence in the record.

BACKGROUND

Originally enacted in 1995, Megan’s Law seeks to protect the safety and welfare of Pennsylvanians by requiring mandatoiy registration and community notification for sexual offenders who are about to be released from incarceration by the state. 42 Pa.C.S. §9791(b). Under the provisions set forth in the Act, a person convicted of a specified predicate offense is obligated to register with the Pennsylvania State Police upon his release from prison and annually verify his residence for a period of 10 years. Commonwealth v. Kopicz, 840 A.2d 342, 346 (Pa. Super. 2003); 42 Pa.C.S. §§9795.1, 9796(b).

Subsequent to conviction of a predicate offense, a process begins to ascertain whether the person should be classified as an SVP. Those classified as SVPs are subject to reporting requirements for their lifetime and must attend approved monthly counseling. 42 Pa.C.S. §§9795.1(b), 9796(a), 9799.4. In the case of an SVP, local law enforcement is also charged with: “notifying] the individual’s neighbors, as well as day care operators and school officials within the municipality.... The data sent to these recipients includes the offender’s name, address, offense, and photograph (if available), as well as the fact that he has been determined... to be a sexually violent predator.... The sexually violent predator’s name and address, including any subsequent change of address, is also sent to the victim of the offense . . . .” Williams II, 832 A.2d at 967.

The rationale for creating this separate and more restrictive classification of persons stems from the legislative finding that “sexually violent predators pose a high risk of engaging in further offenses even after being released from incarceration or commitments.” 42 Pa.C.S. §9791(a)(2); Commonwealth v. Haughwout, 837 A.2d 480, 489 (Pa. Super. 2003).

In May of2000, following the Pennsylvania Supreme Court’s decision declaring Megan’s Law I unconstitutional, the legislature passed Megan’s Law II to cure the constitutional defects highlighted by the court. Apart from amending the necessary provisions to meet the requirements of the constitution, Megan’s Law II is substantially similar to Megan’s Law I. Notwithstanding, the legislature rescinded a provision contained in Megan’s Law I that allowed individuals to petition the courts for reconsideration of the SVP determination. 42 Pa.C.S. §9794(f). Although provisions of Megan’s Law II imply the possible termination of a person’s SVP status, the mechanism allowing reconsideration has been removed. 42 Pa.C.S. §9798(a)(iv). In the absence of judicial review, a person classified as an SVP remains subject to the Act’s reporting, notification, and counseling requirements for the remainder of his or her life. No set of circumstances or changes in an SVP’s life will allow reconsideration of a person’s SVP status.

The constitutionality of the lifetime registration, notification and counseling requirements, with no subsequent judicial review, was addressed in Williams II. There, the Pennsylvania Supreme Court found that the registration, notification and counseling provisions of the Act do not constitute criminal punishment; rather, they “constitute non-punitive, regulatory measures supporting a legitimate governmental purpose.” Williams II, 832 A.2d at 986.

ANALYSIS

Preliminarily, we note that petitioner challenges the constitutionality of a statute enacted by the Pennsylvania Legislature. All validly enacted legislation enjoys a “strong presumption of constitutionality.” Howe, 842 A.2d at 444. “A statute is presumed to be constitutional and will not be declared unconstitutional unless it clearly, palpably, and plainly violates the constitution.... Thus, the party challenging the constitutionality of a statute has a heavy burden of persuasion.” Id. at 441. We therefore examine petitioner’s arguments with due consideration for these presumptions and heavy burdens.

I. Lack of Judicial Review

In his first argument, regarding the statute’s lack of judicial review, petitioner contends that Megan’s Law II is punitive in nature and therefore imposes additional punishment on an SVP without the benefit of due process protection. The court in Williams II held that the United States Supreme Court’s traditional two-pronged test set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), is the proper method for analyzing whether otherwise civil or remedial legislative measures should be deemed penal for constitutional purposes. Pursuant to this test, the court first inquires whether the legislature’s intent was to impose punishment, and, if not, whether the statutory scheme is nonetheless so punitive either in purpose or effect as to negate the legislature’s non-punitive intent. Williams II, 832 A.2d at 971.

The first prong requires inquiry into whether the legislature’s intent was to impose punishment. To determine whether the legislature intended to impose punishment by enacting Megan’s Law II, the court in Williams //looked to the declaration of policy found in 42 Pa.C.S. §9791(b). That section states:

“(b) Declaration of policy. — It is hereby declared to be the intention of the General Assembly to protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood. It is further declared to be the policy of this Commonwealth to require the exchange of relevant information about sexually violent predators among public agencies and officials and to authorize the release of necessary and relevant information about sexually violent predators to members of the general public as a means of assuring public protection and shall not be construed as punitive.” 42 Pa.C.S. §9791(b).

The statute also states that SVPs pose a high risk of re-offense and that “protection of the public from this type of offender is a paramount governmental interest.” 42 Pa.C.S. §9791(a)(2). The legislature found that SVPs pose a high risk of engaging in further offenses even after being released from incarceration. 42 Pa.C.S. §9791(a)(2). The court in Williams //ultimately concluded that the legislature’s purpose in passing Megan’s Law II was to enhance community protection through a civil, regulatory scheme, and not to punish sexually violent predators. Williams // 832 A.2d at 969.

Having found the legislature intended the law to be civil and remedial, the court moved on to the second stage of analysis, which involves examining the factors identified by the Supreme Court in its seminal Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), decision. Williams II, 832 A.2d at 972. Although these factors are “neither exhaustive nor dispositive,” they have proved helpful in considering whether a civil, remedial mechanism nevertheless provides “for sanctions so punitive as to transform what was clearly intended as a civil remedy into a criminal penalty.” Id. at 972 (quoting United States v. Ward, 448 U.S. 249 (1980)). The court identified the Mendoza-Martinez factors as: “(1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose, assigned.” Williams II, 832 A.2d at 973.

In applying these factors, only the “clearest proof’ that a law is punitive in effect may overcome a legislative categorization to the contrary. Id. at 973. The court understood the “clearest proof’ standard to indicate that the Mendoza-Martinez factors must weigh heavily in favor of a finding of punitive purpose or effect in order to negate the legislature’s intention that the Act be deemed civil and remedial. The court also stated that the “clearest proof’ standard is “rarely articulated,” but that “for present purposes we understand the ‘ clearest proof’ standard to indicate that the Mendoza-Martinez factors must weigh heavily in favor of a finding of punitive purpose or effect in order to negate the General Assembly’s intention that the Act be deemed civil and remedial.” Id. After a thorough analysis, the court in Williams //found that, on the record before it, the registration, notification and counseling requirements of Megan’s Law II had not been demonstrated to be punitive by the requisite degree of proof. Id.

However, despite the ultimate finding of constitutionality, the court in Williams II was careful to point out the limitations to the application of its holding. The court cited “due deference to the legislative findings and recognition of the present state of the record” as reasons for finding that the registration, notification, and counseling provisions were “reasonably designed to serve the government’s legitimate goal of enhancing public awareness and ensuring that offenders do not relapse into harmful behavior.” Williams // 832 A.2d at 981. The court pointed to “the absence of competent and credible evidence undermining the relevant legislative findings” as the reason for giving deference to those findings. Id. at 986.

The court also expressed concerns about the issue presently before us — the absence of a mechanism allowing a person’s status as an SVP to be re-evaluated. In determining whether Megan’s Law II was sufficiently onerous to constitute punishment, the court stated:

“[0]ne of the most troubling aspects of the statute is that the period of registration, notification and counseling lasts for the sexually violent predator’s entire lifetime. A reasonable argument could be made that, to avoid excessiveness, the legislature was required to provide some means for a sexually violent predator to invoke judicial review in an effort that he no longer poses a substantial risk to the community. This aspect of the statute may be particularly problematic if the definition of‘sexually violent predator’ is incapable of reasonably precise implementation.... Notably, however, the position that a means for subsequent judicial review is a necessary feature of any valid registration/notification scheme assumes that, given sufficient time and/or treatment, sexually violent predators can be fully cured of the ‘mental abnormality or personality disorder [making them] likely to engage in predatory sexually violent offenses.’ ” Id. at 982-83. (internal citations omitted)

Because the record in Williams II was “devoid of any information concerning the prospect of successful treatment of such individuals,” the court did not determine whether the omission of a mechanism to invoke judicial review rendered Megan’s Law II unconstitutional due to excessiveness. Id. Therefore, the court left open the question of whether Megan’s Law II could withstand a constitutional challenge in a case where the evidence on record rebuts the underlying legislative findings and/or proves the possibility of successful treatment for SVPs, inviting challengers to establish such a record.

While the Pennsylvania Supreme Court’s ruling in Williams II was pending, and after that decision was realeased, the Superior Court heard challenges to the constitutionality of the Megan’s Law II legislation similar to the challenge raised before this court. In Commonwealth v. Haughwout, 837 A.2d 480 (Pa. Super. 2003), the defendant accepted the invitation to challenge the Act’s constitutionality and contended that Megan’s Law violated his procedural rights to due process since it did not provide him with a right to petition for reassessment of the SVP status if he no longer has a mental abnormality or personality disorder that makes him likely to engage in sexually violent offenses. However, the record in Haughwout provided no information regarding the prospect of successful treatment of SVPs. The Superior Court found that, given the specific legislative findings that SVPs pose a high risk of recidivism, the defendant failed to meet “his formidable burden required to overcome the presumed constitutionality” of the statute. Id. at 489.

Similarly, before Williams II was decided, the Montgomery County Court of Common Pleas held the notification and counseling provisions of Megan’s Law II unconstitutional because they constituted punishment. See Commonwealth v. Breyer, 55 D.&C.4th 36 (2001). This order was reversed by the Pennsylvania Supreme Court insofar as it declared the Registration of Sexual Offenders Act unconstitutional and remanded for further proceedings in light of Williams II. See Commonwealth v. Breyer, 577 Pa. 335, 845 A.2d 766 (2004).

Additionally, the Delaware County Court of Common Pleas adopted the reasoning of the Montgomery County Court in Breyer and held that Megan’s Law II was unconstitutional for not providing subsequent judicial review upon just cause shown. See Commonwealth v. Smith, 55 D.&C.4th 285 (2002). This case, like Breyer, was also reversed insofar as it declared the Act unconstitutional and was remanded for further procedings. See Commonwealth v. Smith, 577 Pa. 349, 845 A.2d 113 (2004).

Petitioner in the case before us faces the same formidable burdens placed upon other challengers to the Megan’s Law II legislation. To overcome these burdens, petitioner must show that Megan’s Law II is punitive in nature and therefore required to conform to due process standards. Because the court in Williams 77 clearly indicated that the intent of the legislature was non-punitive, petitioner must show that the Mendoza-Martinez factors weigh heavily in favor of a finding of unconstitutionality to be successful in his claim. Because the court in Williams II addressed these factors and left open only the possibility that another record might establish ex-cessiveness, petitioner can only be successful by creating an adequate record on the issue of excessiveness. Ultimately, petitioner must provide this court with sufficient evidence to show that the lifetime registration, notification and counseling provisions of Megan’s Law II are sufficiently onerous so as to be excessive in relation to the law’s non-punitive purpose of community safety and protection.

As indicated by the court in Williams II, petitioner must demonstrate that there is no substantial risk to the community, or that there is the potential for a full cure of the underlying mental abnormality or personality disorder before the lack of judicial review can be found to be excessive. Based on the record before us, we find that petitioner has not provided sufficient evidence to comply with either of these standards.

While the statute and the court in Williams 77 used the term “mental abnormality” in addition to “personality disorder,” the term “mental abnormality” is not a psychiatric term. (N.T. 9/28/04, pp. 110,255-56.) Therefore, we address the issue of whether our record shows the potential for a full cure in terms of personality disorders. Petitioner’s evidence submitted at the Megan’s Law hearing did not establish that he is curable of any personality disorder. (N.T. 9/28/04, pp. 205, 210.) The Commonwealth’s expert, Dr. Veronique Valliere, testified that certain diagnosable conditions, such as pedophilia and paraphilia, are not capable of being cured. (N.T. 9/28/ 04, pp. 204, 210.) Dr. Valliere testified that doctors do not know how to cure individuals with sexual deviances that motivate sexual crimes and that there is always a potential for such individuals to re-offend in their lifetime. (N.T. 9/28/04, p. 205.) Petitioner’s expert witness, Dr. Timothy Foley, also acknowledged that there is no cure for pedophilia and [psychologists] “don’t talk about cures very often.” (N.T. 9/28/04, p. 143.) Dr. Foley himself testified that if a person has been convicted of a sexual offense and has been found to have a personality disorder, such as pedophilia, paraphilia or antisocial disorder, there is always a risk that that person may re-offend. (N.T. 9/28/04, pp. 174-75.) Based on the content of the record, petitioner has failed to show that a full cure of the underlying personality disorder is possible.

Petitioner has also failed to provide evidence that an SVP may pose a risk that is insubstantial to his or her community after the passage of time and/or the completion of treatment. Much of the expert testimony examined the relationship between age and sexual recidivism. The evidence did not establish that, as an SVP ages, he or she no longer poses a substantial risk to the community. Defendant’s expert witness, Dr. Foley, testified that studies show testosterone decreases as age increases and, as a result, sexual offense recidivism decreases with age. (N.T. 9/28/04, p. 55.) Dr. Valliere rebutted the findings of the testosterone studies by noting that such studies failed to take factors such as health, access to victims, and ageism into account. (N.T. 9/28/04, p. 221.) Moreover, Dr. Valliere cited R. Karl Hanson’s literature that, for certain types of offenders, such as those with pedophilia, persistent deviant sexual arousal does not decrease with age. (N.T. 9/28/04, pp. 221-22.) Because petitioner bears a heavy burden of proof and because the literature discussing the relationship between age and recidivism is conflicting and inconclusive, petitioner’s evidence regarding age and recidivism is insufficient to meet his burden.

Petitioner also presented evidence that completion of sex offender treatment lowers the risk of recidivism. (N.T. 9/28/04, pp. 57-58.) Petitioner’s own expert, however, testified that “a variety of data” exists, that reaches differing conclusions about the effectiveness of treatment in lowering the recidivism rate. (N.T. 9/28/04, p. 58.) As such, petitioner has failed to offer evidence that would establish Megan’s Law II is excessive as a civil statute and, thus, unconstitutionally punitive.

II. Void for Vagueness

Petitioner presents two arguments in support of his contention that Megan’s Law II is void for vagueness. Petitioner first argues that the terms of the Act associated with the determination of whether an offender is an SVP are unconstitutionally vague. Specifically, petitioner asserts that the terms “likely,” “sexually violent predator,” “mental abnormality,” and “counseling,” as defined by the Act, are incapable of reliable implementation by the SOAB members and result in individuals being deemed SVPs who do not pose a substantial risk to the community.

As previously stated, the petitioner shoulders a heavy burden in establishing the unconstitutionality of a validly enacted statute. Haughwout, 837 A.2d at 489. When considering whether a statute is unconstitutionally void for vagueness, a court must determine whether “persons of common intelligence must necessarily guess at its meaning and differ as to its application.” Kopicz, 840 A.2d at 349 (citing Commonwealth v. Cotto, 562 Pa. 32, 37, 753 A.2d 217, 220 (2000)). A statute shall not be deemed unconstitutionally vague where the terms are sufficiently specific so as to prevent arbitrary application. Id.

A. Terms of the Statute

In disposing of petitioner’s claim of vagueness as to the terms of the statute, we note that this court is bound by the holdings of Howe, 842 A.2d at 436 and Commonwealth v. Rhoads, 836 A.2d 159 (Pa. Super. 2003). In Howe, the Superior Court found the terms utilized to classify an offender as an SVP could not be more clear. In finding the Act was sufficiently specific, the court explained:

“Only individuals convicted of certain enumerated offenses are subject to an assessment to determine if the person should be classified as a sexually violent predator due to the individual’s mental abnormality or personality disorder that creates a likelihood that the individual would engage in such sexual offenses in the future. To avoid arbitrary or capricious enforcement of Megan’s Law II, a thorough assessment is conducted. The term ‘mental abnormality’ is specifically defined and not vague in that the definition classifies which conditions are ascribed to ‘mental abnormality.’ In addition, the undefined terms ‘personality disorder’ and ‘likely to engage in’ are not vague on their face in that they are sufficiently definite that ordinary people can understand what conduct they prohibit and are not so vague that men of common intelligence must necessarily guess at their meaning and differ as to their application.” Howe, 842 A.2d at 444.

Likewise, the Rhoads panel rejected a void for vagueness challenge by stating:

“We first note that only individuals convicted of an offense enumerated under 42 Pa.C.S. §9795.1 ... of the Act are subject to an assessment devised to determine if such individual should be classified as a [sexually violent predator] .... To further avoid arbitrary or capricious enforcement of the law, a thorough assessment of such individual is conducted pursuant to 42 Pa.C.S. §9795.4(b) . . . before that individual is adjudicated as a ‘sexually violent predator. ’ Given the definitive filtering mechanism offered by section 9795.1 in terms of clearly defining who is subject to a [sexually violent predator] assessment and the exhaustive determinative factors utilized in making such an assessment in accordance with section 9795.4, we find the statute is sufficiently clear and specific to withstand appellant’s constitutional challenge.” Rhoads, 836 A.2d at 162-63.

As we are bound by the rulings of Howe and Rhoads, we believe a lengthy discussion of vagueness regarding the terms of the statute is unnecessary and hold that the terms of Megan’s Law II are sufficiently clear to withstand petitioner’s challenge.

B. Method of Prediction

Petitioner finally argues that Megan’s Law II is void for vagueness based on the methods used by the SOAB when assessing whether to recommend an offender for SVP status. “Vague statutes deny due process of law when they ... do not set reasonably clear guidelines for enforcement, thus inviting arbitrary and discriminatory enforcement.” South Union Township v. Department of Environmental Protection, 839 A.2d 1179, 1192 (Pa. Commw. 2003) (citing Park Home v. City of Williamsport, 545 Pa. 94, 101, 680 A.2d 835, 838 (1996)). In Williams II, the court suggested that a showing “that the offender assessment process is so unreliable that there will be little correlation between those ultimately deemed sexually violent predators and the class of individuals who pose the greatest risk of predation” might be sufficient to render the statute unconstitutionally vague. 832 A.2d at 983. However, the court emphasized that “any conclusion that an assessment of sexually violent predator status is so arbitrary that the consequences to the individual so adjudicated constitute punishment, would have to be grounded upon credible record evidence that the enumerated criteria were non-predictive, or that assessment pursuant to them was inherently unreliable.” Id. at 984. (footnote omitted)

At trial, the Commonwealth’s expert, Dr. Valliere, testified that the SOAB utilizes empirically-guided clinical judgment to make assessments regarding whether an offender is recommended for SVP status. (N.T., 11/08/04, p. 30.) Petitioner’s expert, Dr. Foley, testified that actuarial tools are “significantly more accurate” than clinical judgment and that actuarial methods are “state of the art” in terms of making assessments. (N.T., 09/28/04, pp. 89,105.) In response, Dr. Valliere testified that clinical judgment and empirically-guided clinical judgment are two different processes. (N.T., 11/08/04, pp. 27-28.) Foley essentially conceded this point and admitted that there is “not a huge difference when you have a correctly administered actuarial versus correctly administered explicitly defined empirically-guided clinical judgment.” (N.T. 09/28/04, p. 156.)

As we have repeatedly emphasized in this opinion, petitioner faces a heavy burden to clearly demonstrate the unconstitutionality of Megan’s Law II. The operative inquiry to determine the unconstitutionality of the methods of prediction employed by the SOAB is not whether the methods are state of the art or even the most accurate available methods. The operative inquiry is whether the methods employed are so unreliable as to produce little correlation between offenders deemed S VPs and individuals who actually pose the greatest risk of predation. That record has not been established.

Here, Dr. Foley, while maintaining that more state of the art methods are available, admitted that the methods used by the SOAB produce results that are not significantly different from results produced by the state of the art methods. This evidence does not approach the level of proof needed to overcome petitioner’s burden. Therefore, based on the record before us, we decline to find that the methods used by the SOAB in assessing SVP status are so vague as to be unconstitutional.

CONCLUSION

Our Supreme Court was troubled by the requirement that registration, notification and counseling of an SVP last for his or her lifetime without the opportunity for judicial review. We share that concern. The court found, however, that the record before it was devoid of any information concerning the prospect of successful treatment of S VPs and thus the presumption of constitutional validity was not rebutted. Here, we also find that petitioner has not rebutted this presumption. Therefore, because we hold that petitioner has failed to sustain his heavy burden of proving unconstitutionality, we find the Act to be constitutional as applied.

      . Set forth in 42 Pa.C.S. §9795.1.

      . A sexually violent predator is a person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. 42 Pa.C.S. §9792.

      . The Pennsylvania Supreme Court invalidated Megan’s Law I in Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999) (Williams I).

      .42 Pa.C.S. §9798(a)(iv) states:
      “(1) The notice shall contain:
      “(iv) A statement that he has been determined by court order to be a sexually violent predator, which determination has or has not been terminated as of a date certain.”

      . We recognize that the court in Williams II has left the standard for a successful constitutional challenge to Megan’s Law II somewhat ambiguous by using language that requires an SVP to be “fully cured” in the same paragraph as language requiring the SVP to demonstrate no remaining “substantial risk to the community.” We believe that the only standard constitutionally permissible is that which requires an SVP to demonstrate no remaining “substantial risk to the community.” Common sense, our own collective experience, and the current level of psychiatric treatment available to most individuals suggest to us that a standard that requires an SVP to demonstrate a “full cure” is too high a burden to place upon individuals seeking subsequent judicial review. In light of that conclusion, we believe a standard that requires an SVP to demonstrate that he or she is no longer a substantial risk to the community is the correct standard. Given the testimony of record that there is no such thing as a “full cure” for certain sexual personality disorders, we believe a standard that requires a petitioner to prove that he or she is no longer a “substantial risk to the community” will take into account and fully address the legislature’s intent to protect the public. Although the record before us is insufficient to show that either a full cure or insubstantial risk can be achieved, we believe that, for purposes of a future challenge, the latter is the correct standard that must be addressed.

      . Ageism refers to a known reluctance to convict the elderly. (N.T. 9/28/04, p. 221.)

      . R. Karl Hanson, corrections researcher of the Department of the Solicitor General of Canada, was frequently cited by both petitioner’s and the Commonwealth’s experts for his literature on sexual offender recidivism. See defendant’s supplemental brief to the memorandum of law based on evidentiary hearings, exhibit H: R. Karl Hanson and Monique T. Bussiere, Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, Journal of Consulting and Clinical Psychology, vol. 66, no. 2 (1998).

      . In Williams II, the void for vagueness issue was not raised before the trial court and the court therefore addressed the vagueness argument in the context of whether vagueness rendered the statute unconstitutionally punitive through execessiveness. In the case sub judice, petitioner has raised the void for vagueness issue at the trial level and we address this issue separate and apart from petitioner’s arguments regarding excessiveness.


source: Caselaw Access Project

author: ZITO, J,

license: Public Domain

text:
    Stokes v. I.B. Dickinson & Sons Inc.
    C.P. of Northampton County,
    no. 2003-5421.

      Michael B. Kaspszyk, for plaintiffs.

      Joseph H. Foster, Mary E. Dixon and James H. Rohlfing, for defendants.
    December 2, 2004
   ZITO, J,

STATEMENT OF REASONS

Before the court is additional defendant Alvin H. Butz Inc.’s motion for summary judgment.

Background

This case arises from an August 1, 2001 construction accident at the Lehigh Heavy Forge plant in Bethlehem, Pennsylvania, during which plaintiff, Richard Stokes, fell from the boom of a crane. Alvin H. Butz Inc. was the general contractor on the project. Butz hired Tri-City Erectors Inc. to perform iron work on the project. Stokes was an employee of Tri-City. Butz leased the crane from I.B. Dickinson & Sons Inc. and contracted for a Dickinson crane operator, Charles Beltz. Butz filed this motion for summary judgment alleging “it is entitled to immunity from liability under the Workers’ Compensation Act as the plaintiff’s statutory employer.”

Discussion

Summary judgment is warranted only when “there is no genuine issue of material fact such that a moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035.2; see e.g., Hatter v. Landsberg, 386 Pa. Super. 438, 440, 563 A.2d 146, 147-48 (1989). This court must view the record in the light most favorable to the non-moving party and. determine whether the moving party has established that there exists no genuine issue of material fact and that it is therefore entitled to judgment as a matter of law. See e.g., id. Importantly, the non-moving party is entitled to all reasonable inferences, and any doubts as to the existence of a factual dispute must be resolved in the non-moving party’s favor. See e.g., Kingston Coal Co. v. Felton Mining Co. Inc., 456 Pa. Super. 270, 277, 690 A.2d 284, 287 (1997). Summary judgment is appropriate only in the “clearest of cases.” Id. “Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment.” Murphy v. Duquesne University of the Holy Ghost, 565 Pa. 571, 590, 777 A.2d 418, 429 (2001).

In Pennsylvania, the Workers’ Compensation Act provides immunity to employers from tort claims brought by employees injured during the course of employment. See e.g., Peck v. Delaware County Board of Prison Inspectors, 572 Pa. 249, 254-55, 814 A.2d 185, 188 (2002). In addition to common-law and contractual employers, “statutory employers” are also immune from suit. See id. The Act defines statutory employers as:

“An employer who permits the entry upon premises occupied by him or under the control of a laborer or an assistant hired by an employer or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employee or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as his own employee.” 77 Pa.C.S. §52.

In construing that provision, the Pennsylvania Supreme Court has set forth a five-pronged test for determining whether an employer is a statutoiy employer under the Act: (1) an employer who is under contract with an owner or one in the position of an owner; (2) premises occupied by or under the control of such employer; (3) a subcontract made by such employer; (4) part of the employer’s regular business entrusted to such subcontractor; and (5) an employee of such subcontractor. Peck, 572 Pa. at 255, 814 A.2d at 188 (citing McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (1930)). All five elements must be satisfied in order to successfully assert the defense. Id. Further, “[i]n determining whether a party is a statutoiy employer, courts should construe the elements of the McDonald test strictly and find statutory employer status only when the facts clearly warrant it.” Peck, 572 Pa. at 255, 814 A.2d at 189.

Here, the dispute is whether Butz satisfied the second element of the McDonald test by exercising control over or occupying the premises. “An employer will satisfy this element of the McDonald test either if he occupies the premises or if he is in control of the premises.” Emery v. Leavesly McCollum, 725 A.2d 807, 811 (Pa. Super. 1999). (emphasis in original) “Although actual control must be demonstrated, the statutory employer’s control of the premises need not be exclusive of the owner’s possession of the premises.” Id. “Moreover, the fact that the subcontractor used its own supervisors to directly oversee the subcontractor’s employees does not mean the general contractor did not retain actual control over the project and premises in general.” Id.

There is a genuine issue whether Butz exercised control over the project or occupied the site. For instance, Richard Stokes testified that the decision to move the crane was made by Tri-City’s foreman, Greg Boucha. Boucha gave the directions at the site on the day of the accident; he received no directions from anybody from Alvin Butz, to his knowledge. Stokes dep., 5/19/04, at 25-26,62,95-96. The crane operator, Beltz, testified that although Butz was the general contractor, Tri-City was doing most of the actual work, told him which crane to be on, where the crane needed to be, and what to do. Beltz dep., 5/19/04, at 21, 73-74, 79.

Moreover, Dickinson failed to present sufficient evidence for this court to conclude as a matter of law that it exercised control or occupancy within the meaning of the McDonald test. In its memorandum in support of summary judgment, Butz relied solely on deposition testimony and a work order signed by a Butz employee, Fred Anderson. Under the Nanty-Glo rule, “summary judgment cannot be granted based upon evidence which depends solely on oral testimony.” See e.g., White v. Owens-Corning Fiberglas Corp., 447 Pa. Super. 5, 18, 668 A.2d 136, 142-43 (1995). That is because no matter how “clear and indisputable may be the proof when it depends on oral testimony.... [a] witnesses’ credibility is a determination for the jury and necessarily creates a genuine issue of material fact.” Id. Nor does the work order signature show occupancy or control as that form does not show what Butz claims, that “Fred Anderson, [was] on site daily, [and] oversaw the work of Tri-City and approved their work on a daily basis.”

The import of the work order form will necessarily turn on the credibility of testimony about when and how it was completed.

The court does not reach Butz’ alternative argument for denying the summary judgment motion, namely, waiver of immunity by contract. The additional defendant’s motion for summary judgment is denied.

ORDER

And now, December 2, 2004, the additional defendant’s motion for summary judgment is denied.


author: MINORA, J.,

text:
    Latniak v. Von Koch

      C.P. of Lackawanna County,
    no. 04-CV-2253.

      J. Craig Currie, for plaintiffs.

      Benjamin A. Post and Tara A. Reid, for defendant Mercy Hospital/Mercy Health Partners.

      Patrick C. Carey, for defendant Von Koch.
    December 1, 2004
   MINORA, J.,

Currently before the court are two sets of preliminary objections to the plaintiffs’ complaint presented by the above named defendants, Lear Von Koch M.D., the Mercy Hospital of Scranton, Pennsylvania and Mercy Health Partners. All parties to this matter waived oral argument and agreed to submit this matter to the court on the basis of their briefs. Both sets of preliminary objections and supportive briefs will be addressed in one memorandum and order.

STATEMENT OF THE CASE

The instant action was commenced by the plaintiffs, Charles A. Latniak and Michelle L. Latniak, by praecipe for writ of summons on June 2, 2004. On or about July 16, 2004, the plaintiffs filed their complaint asserting causes of action of medical negligence, battery and loss of consortium against the defendant, Lear Von Koch M.D. The complaint also alleges causes of action against the Mercy Hospital of Scranton, Pennsylvania and Mercy Health Partners, hereinafter referred to as Mercy Hospital for vicarious liability for the negligent and wrongful acts of Dr. Von Koch as well as loss of consortium. The defendant, Lear Von Koch M.D., is a duly licensed physician of the Commonwealth of Pennsylvania. The defendants, Mercy Hospital and Mercy Health Partners, are both Pennsylvania corporations which at all times have been engaged in the business of providing health care services as a hospital.

According to the complaint, the plaintiff, Mr. Latniak, began to experience mid-sternal chest pain and shortness of breath in May of 2002. Mr. Latniak was later diagnosed with subclavian steal syndrome caused by an occlusion of the subclavian and carotid main artery on his left side. Due to this condition, Mr. Latniak was subjected to a left carotid subclavian artery bypass which was performed by the defendant, Dr. Lear Von Koch on June 2,2002 at the Mercy Hospital, Scranton, one of the named corporate defendants.

Immediately after the surgery, the plaintiff, Mr. Lat-niak allegedly noticed weakness in his left shoulder and arm. He was later diagnosed with having suffered a left C5 root injury and/or injury to the upper trunk of the brachial plexus producing a severe pain in the upper left arm and numbness, weakness, flexion, an inability to elevate his arm and difficulty supanating his left hand, all of which are allegedly permanent injuries.

Count I of the complaint asserts a claim in negligence against Dr. Lear Von Koch. Specifically, the complaint alleges the surgeon acted in a careless manner in that he knew, or should have known, that in the absence of special care, he would produce an unreasonable risk of injury to the C5 nerve root and/or the brachial plexus. The acts and omissions of the surgeon are listed in the complaint as follows.

“said surgeon:

“(a) failed to adequately identify the C5 nerve root and brachial plexus during the procedure so as to isolate them and keep them free from injury;

“(b) failed to take all measures to reduce or eliminate the risk of undue pressure, traction, compression or other trauma inflicted by surgical technique and/or retractors and other surgical tools upon nerves in and around the operative site, including the C5 nerve root and/or the brachial plexus, during the course of the procedure;

“(c) failed to complete the procedure in a timely fashion so as to reduce the risk of injury to nerves arising from prolonged pressure from surgical instruments and the like;

“(d) failed to recognize during the procedure that he had inflicted an injury at the C5 nerve root and/or bra-chial plexus so as to attempt a surgical repair at the time or permit repair by others;

“(e) failed to make use of intraoperative nerve monitoring techniques, equipment and services so as to alert him of the imminent trauma to nerves in and near the operative field, including the C5 nerve root and brachial plexus;

“(f) failed to take all steps necessary and reasonable to reduce or otherwise eliminate the risk of injury to the C5 nerve root and or the brachial plexus;

“(g) failed to make use of intraoperative nerve monitoring so as to forewarn the surgeon of imminent harm to the C5 nerve and/or brachial plexus;

“(h) failed to make use of alternative procedures with less risk of nerve injury including but not limited to, stenting; and

“(i) otherwise failed to use due care under the circumstances.” See plaintiffs’ complaint paragraph 15.

Count II of the complaint asserts a claim against Mercy Hospital and Mercy Health Partners in vicarious liability. Plaintiffs aver that Dr. Koch at all material times under the circumstances in question, acted as an agent, servant and/or employee, or as an ostensible agent of Mercy Hospital and Mercy Health Partners. Plaintiffs further allege that, due to the relationship between the defendants, the corporate defendants are vicariously liable to the plaintiffs for the negligent acts of the defendant surgeon.

In Count III, the plaintiffs contend that Dr. Lear Von Koch committed a battery against the plaintiff, Mr. Latniak, when he failed to obtain his informed consent by way of advising him of the potential risks involved with the procedure, or offering alternative forms of treatment. Therefore, the plaintiffs claim that, by not obtaining such consent, the subsequent surgery constitutes a battery.

The last count alleged by the plaintiffs is asserted by Mrs. Latniak against all defendants for loss of consortium. It is averred that, due to the injuries suffered by Mr. Latniak, Mrs. Latniak experienced a loss of companionship, camaraderie and society as well as loss of consortium on account of all defendants’ acts.

In the interests of clarity this court will attend to the preliminary objections of the co-defendants separately. We will first provide an overview of the legal standards addressed by both parties’ preliminary objections.

DISCUSSION

Preliminary Objections in the Nature of Motions To Strike

The Commonwealth of Pennsylvania is a fact pleading state whereby the complaint must provide the defendant notice of the basis of the claim as well as a summary of the facts essential to support that claim. Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa. Super. 293, 464 A.2d 1349 (1983). Preliminary objections in the form of motions to strike items in a complaint per Pa.R.C.P. 1028(a)(3) can be for lack of specificity of pleading pursuant to Pa.R.C.P. 1019(a). These Rules of Civil Procedure require that all the material facts on which a cause of action or defense are based shall be stated in a concise and summary form. See Pa.R.C.P. 1019(a); Yacoub v. Lehigh Medical Associates P.C., 805 A.2d 579 (Pa. Super. 2002). The Superior Court of Pennsylvania notes that the question presented by Pa.R.C.P. 1028(a)(3) is “whether the complaint is sufficiently clear to enable the defendant to prepare his defense or [if it] informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” McNeil v. Jordan, 814 A.2d 234, 237-38 (Pa. Super. 2002); Ammlung v. Platt, 224 Pa. Super. 47, 59 n.36, 302 A.2d 491, 498 n.36 (1973) (quoting 1 Goodrich-Amram §1017(b)-9). To determine if a paragraph contains the appropriate specificity, the court looks not only to the particular paragraph at issue, but also to that paragraph in the content of the other allegations in the complaint. Yacoub, supra at 588.

The trial court has broad discretion in determining the amount of detail that must be pleaded since this is not something capable of precise measurement. Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677 (1978). It is not necessary to plead evidence which can be developed through discovery. Local No. 163, International Union U.B.F.C.S.D. & D.W. v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965). See also, Commonwealth of Pennsylvania v. Schlittler, 104 Lacka. Jur. 112, 115-16 (2003). Yet, when determining whether the averments of the complaint are sufficient, a court must ensure that the challenged averments present no risk of a future, unexpected amendment to the complaint based upon new facts after the statute of limitations has run. Boyd v. Somerset Hospital, 24 D.&C.4th 564, 567 (1993); Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983); see also, Clarkson v. Geisinger Medical Center, 46 D.&C.4th 431 (2000).

Defendant’s, Mercy Hospital, Scranton a/k/a Mercy Hospital, Scranton, PA and Defendant’s, Mercy Health Partners Preliminary Objection in the Form of a Motion To Strike for Insufficiency of Pleading

The above named defendants assert a preliminary objection as a motion to strike language in paragraph 15(i) of the plaintiffs’ complaint as vague, non-inclusive allegations of negligence. Specifically, the subparagraph states that Dr. Lear Von Koch was negligent in that he “otherwise failed to use due care under the circumstances.” Defendants further assert that such language may be construed as constituting any theory of liability against the defendants and should be stricken from the complaint as it is not sufficiently factually specific to provide the defendants notice as to what claims are being asserted against them. We agree.

Pursuant to Pa.R.C.P. 1019(a) fact pleading is required. As noted above, each paragraph of the complaint is not to be examined in a vacuum, but within the context of the complaint as a whole. Although allegations of negligence in a medical malpractice claim that merely recite the standard of care required of a doctor are inadequate to put that defendant on notice of the specific acts or omissions being complained of. Boyd v. Somerset Hospital, 24 D.&C.4th 564, 568 (1993). (The plaintiff’s complaint asserted a negligence action against a doctor and merely listed the complained of acts and omissions of the doctor as a failure to comply with the medical standards of the community, failure to adhere to pertinent medical standards and failure to adhere to medical standards of other medical professionals. The court found the description inadequate to provide the defendant physician notice.); Gray v. Oech, 49 D.&C.2d 358 (1970). Moreover, catch-all allegations of negligence do not apprise the defendant of his conduct that the plaintiffs allege as improper or negligent. Boyd, supra at pp. 567-68.

The allegations of the complaint in paragraph 15(i) must be characterized as a catch-all averment. The motion to strike paragraph 15(i) will be sustained so as to ensure that no additional surprise amendments may be made to the complaint. This should preserve the defendants’ awareness of their acts and omissions which the plaintiffs have alleged to have been improper. The language of subparagraph 15(i) gives the plaintiffs too much latitude to later amend the complaint and structure a claim against the defendant without first providing notice of the allegedly wrongful acts.

Before a determination can be made as to whether the motion to strike paragraph 15(i) may be sustained, a brief overview of corporate negligence is required. The plaintiffs utilize the doctrine of “corporate negligence” in their claim against Mercy Hospital/Mercy Health Partners in Count II by assessing liability against said hospital. The doctrine of “corporate negligence” is one by which a defendant/hospital is liable if it fails to adhere to the proper standard of care it owes the patient. Thompson v. Nason Hospital, 527 Pa. 330, 339, 591 A.2d 703, 707 (1991). “This theory of liability creates a nondelegable duty which the hospital owes directly to a patient.” Id. at 339, 591 A.2d at 707. Furthermore, the Thompson court established four general areas of corporate liability including: “(1) [the] duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; ... (2) [the] duty to select and retain only competent physicians;... (3) [the] duty to oversee all persons who practice medicine within its walls as to patient care; ... (4) [the] duty to formulate, adopt and enforce adequate rules and policies to enforce quality care for patients.” Id. at 339-40, 591 A.2d at 707.

Ultimately, the Thompson court adopted as a theory of hospital liability the theory of corporate negligence by which the hospital is liable for failure to adhere to the proper standard of care owed to its patients. Id. at 341, 591 A.2d at 708. Considering the above general areas of corporate liability, should Dr. Koch be found responsible for the injuries of the plaintiff, so too will Mercy Hospital/Mercy Health Partners under the doctrine of corporate negligence. Accordingly, the defendants Mercy Hospital and Mercy Health Partners have properly raised the preliminary objection as a motion to strike subparagraph 15(i).

Defendant’s, Lear Von Koch’s M.D. Preliminary Objection in the Form of a Motion To Strike

The defendant, Lear Von Koch M.D., requests that this court strike subparagraph 15(i) of the complaint. This defendant maintains that the language of the subpara-graph is a general allegation of negligence and is therefore not factually specific as required by Pa.R.C.P. 1019(a). Since this court addressed this identical request by the co-defendant’s, Mercy Hospital’s/Mercy Health Partners’ motion to strike pertaining to subparagraph 15(i) above, we will not belabor the point again here. Therefore, Dr. Koch’s motion to strike subparagraph 15(i) will be sustained.

Defendant’s, Lear Von Koch’s M.D. Preliminary Objection Whereby Defendant Requests a More Specific Pleading

Dr. Von Koch requests that this court direct plaintiffs to file a more specific pleading with respect to paragraph 15 of the complaint. The defendant proclaims that all averments set forth in subparagraphs 15(a) through (h) are not sufficiently specific and that said paragraph fails to allege specifically the negligence attributable to the defendant relative to plaintiff’s alleged injury. As previously stated, pursuant to Pa.R.C.P. 1019(a), the complaint must provide the defendant fair notice of the plaintiff’s causes of action and a summary of the material facts that support those claims. Yacoub, supra. The defendant stresses that paragraph 15 does not specifically enumerate the particular acts which led to the alleged C5 root injury and/or injury to the upper trunk of the brachial plexus. What the defendant would like this court to turn a blind eye to is that, although the Pennsylvania Rules of Civil Procedure do require fact pleading, the complaint need not list all evidence that demonstrates the defendant’s improper acts. Boyd, supra at 567; Albright v. Gadiparthi, 50 Somerset L.J. 355, 361 (1991). Instead, discovery is the proper phase of litigation in which evi-dentiary details will be revealed. Boyd, supra at 567. Moreover, “common pleas courts have been rightly attuned to plaintiffs [in medical malpractice cases] who have less knowledge than the defendant medical providers about the care and/or treatment provided.” Clarkson, supra at 433. (emphasis added) (The court provides a discussion of what constitutes sufficient facts under Pa.R.C.P. 1019(a) in a medical malpractice claim before the court and determined that the physician must be advised of the acts which constitute the negligence complained of so that he may prepare his defense.) The requisite amount of facts pled in the complaint must be sufficient to put the defendant on notice of the alleged wrong while specific enough for the defendant medical provider to devise a defense. Because of the vast disparity between the plaintiffs’ and defendant’s education in the field of medicine, the plaintiff cannot be expected to plead facts in the complaint that detail precisely what “procedures” the defendant medical provider undertook or omitted that ultimately caused the injury. It is important to note that a case is not tried at the preliminary objection phase of litigation. Therefore, the averments in subparagraphs 15(a) through (h) are specific enough to put the defendant on notice as to his wrongful conduct and to prepare a defense, while specifically stating what actions and omissions constitute negligence which caused the underlying injury. This court must overrule the defendant’s, Dr. Von Koch, preliminaiy objection requesting a more specific pleading to the above listed subpara-graphs of the complaint. An appropriate order follows.

ORDER

And now, to wit, December 1, 2004, upon consideration of the defendants’ preliminary objections, the verbal and written arguments of counsel, and in accordance with the preceding memorandum, it is hereby ordered and decreed that the defendant’s preliminary objections will be granted in part and denied in part.

(1) The defendants’, Mercy Hospital, Scranton, Pennsylvania and Mercy Health Partners, preliminary objection, in the form of a motion to strike, concerning sub-paragraph 15(i) of the plaintiffs’ complaint, is hereby granted.

(2) The defendant’s, Lear Von Koch M.D., preliminary objection in the form of a motion to strike, concerning subparagraph 15(i) of the plaintiffs’ complaint, is hereby granted.

(3) The defendant’s, Lear Von Koch M.D., preliminary objection requesting a more specific pleading concerning paragraph 15 of the plaintiffs’ complaint is hereby denied.

      . Paragraph 15(b) of the complaint states that Dr. Von Koch was negligent in failing to “take all measures to reduce or eliminate the risk of undue pressure, traction, compression or other trauma inflicted by surgical technique and/or retractors and other surgical tool upon nerves in and around the operative site, including the C5 nerve root and/or the brachial plexus, during the course of the procedure.” In Dr. Koch’s supportive brief, counsel argues that without specifying the type of measures the defendant failed to undertake, this description is insufficiently specific for the defendant to prepare his defense.


author: CLARK JR., J,

text:
    Capital City Cab Service Inc. v. Susquehanna Area Regional Airport Authority

      C.P. of Dauphin County,
    no. 34 EQ 2004.

      Peter J. Foster, for plaintiff.

      J Bruce Walter, for defendant SARAA.

      Pankiw Bohdan, for the Public Utility Commission.
    November 8, 2004
   CLARK JR., J,

INTRODUCTION

This equity action came before this court when a “petition for a preliminary injunction” and a “declaratory judgment complaint and petition for preliminary and permanent injunctions,” were filed by the plaintiff, Capital City Cab Service Inc., against the defendant, Susquehanna Area Regional Airport Authority (SARAA). As a result of that petition, a pre-hearing conference was held on June 9, 2004 with this court, which conference included representatives of both parties and their respective legal counsels, together with a representative from the chief counsel’s office of the Pennsylvania Public Utility Commission (PUC). A hearing was subsequently held before this court on June 10, 2004. Shortly after that hearing (on June 10, 2004), we issued an interim decree (on June 14, 2004) that was to remain in effect pending the further resolution of the underlying issue(s) which we determined were within the primary jurisdiction of the PUC. SARAA took exception to portions of our interim decree and filed an appeal in the Commonwealth Court. This writing is being undertaken to provide the Commonwealth Court with the basis, scope and intent of our limited relief in the form of the interim decree.

HISTORICAL BACKGROUND

As early as 1898, a portion of the premises now known as Harrisburg International Airport (HIA) was being utilized by the Signal Corps of the United States Army for governmental purposes. After the invention of the airplane, those same premises came to be known as Middletown Field. In or about 1918, the first military airplanes were reported to have landed at Middletown Field. At some point thereafter, the premises were renamed as the Olmsted Air Force Base. At the height of its operations as an Air Force Base, Olmsted grew to quite an expansive installation which had 11,400 civilian employees. In 1969, Olmsted Air Force Base was decommissioned, but retained some military operational functions, primarily associated with the Pennsylvania Air National Guard, which functions continue to this day.

Upon decommissioning, the premises were converted into a civilian airport facility, renamed HIA, and were primarily the property and responsibility of the Commonwealth of Pennsylvania, Department of Transportation. In 1998, PennDOT ceded ownership of HIA to a newly formed municipal entity, known as the Susquehanna Area Regional Airport Authority, which is comprised of the representative governmental entities of Cumberland, Dauphin and York counties, the cities of Harrisburg and York, and the townships of Fairview and Lower Swatara. It is essentially SARAA that now owns and operates HIA as a joint municipal endeavor.

The primary nature of the issue(s) before this court is SARAA’s proposed management of and/or limitation upon the common carrier taxi services which operate within the greater Harrisburg Region, and by direct implication, provide those same common carrier services to HIA. There are three such taxi services which primarily serve HIA, namely, American Taxi Company, Keystone Taxi, and the plaintiff, Capital City Cab.

Given the fact that SARAA owns and operates HIA, it (SARAA) appears to presume that it should arrange for taxi services, and particularly the control of outbound taxi fares and services, for airport patrons. However, in this Commonwealth, taxi service providers are deemed to be public utilities because they are common carriers. See 66 Pa.C.S. §102. A common carrier is generally defined as: “[a]ny and all persons or corporations holding out, offering, or undertaking, directly or indirectly, service for compensation to the public for the transportation of passengers or property, or both, or any class of passengers or property, between points within this Commonwealth by, through, over, above, or under land, water, or air, and shall include forwarders, but shall not include contract carriers by motor vehicles, or brokers, or any bona fide cooperative association transporting property exclusively for the members of such association on a nonprofit basis.” 66 Pa.C.S. §102.

Pennsylvania statute, more specifically defines common carrier by motor vehicle as: “[a]ny common carrier who or which holds out or undertakes the transportation of passengers or property, or both, or any class of passengers or property, between points within this Commonwealth by motor vehicle for compensation, whether or not the owner or operator of such motor vehicle, or who or which provides or furnishes any motor vehicle, with or without driver, for transportation or for use in transportation of persons or property as aforesaid, and shall include common earners by rail, water, or air, and express or forwarding public utilities insofar as such common carriers or such public utilities are engaged in such motor vehicle operations....” 66 Pa.C.S. §102.

Primary authority over public utilities lies within the PUC. Pursuant to Pennsylvania statutory enactment, the General Assembly has provided:

“(b) Administrative Authority and Regulations. — The commission shall have general administrative power and authority to supervise and regulate all public utilities doing business within this Commonwealth. The commission may make such regulations, not inconsistent with law, as may be necessary or proper in the exercise of its powers or for the performance of its duties.” 66 Pa.C.S. §501(b).

As such, the PUC has the primary authority to regulate and administer taxi service providers.

So as to fully illuminate the issues at hand, it is important to discuss the events leading up to the filing of the petition which brought this case before this court. On June 30, 2003, in an attempt to have the PUC abandon and/or abrogate some of its primary statutory and regulatory authority over taxi services providers at HIA, SARAA filed a “petition for declaratory order” with the PUC. From the express averments in that initial declaratory petition before the PUC, it is clear that SARAA, at the very least, acknowledged that the PUC had primary jurisdiction over outbound taxi service providers. Through that declaratory petition, SARAA requested that the PUC give it (SARAA) control over outbound taxi fares from HIA. SARAA wanted such control so that it was free to enter into an agreement with only one of the taxi cab companies which provided service to HIA, namely, American Taxi. Such a request was alleged by SARAA to be necessary because of constant difficulty that it (SARAA) was having with providing adequate taxi services at HIA. As such, SARAA requested that the fares originating at HIA (outbound fares) would not be subject to the PUC’s regulatory authority. SARAA averred in the declaratory petition that such outbound control by SARAA was necessary because it was both legally permissible and more efficient for the PUC to not exercise its primary jurisdiction over the taxi company which would provide exclusive outbound transportation at HIA through an anticipated contract with SARAA. (Petition for declaratory order, June 30,2003.)

On January 16, 2004, the PUC held a public meeting to address the relief requested by S ARAA in the declaratory petition. After a public meeting on that matter, the PUC denied SARAA’s request on January 20,2004, and issued a formal order establishing its decision, wherein it (PUC) set forth its basis and holding on such matters. SARAA never filed an appeal to that formal order, although such formal order constituted a decision that could have been properly presented to the Commonwealth Court on appeal. As such, that PUC decision stands as essentially the present law of the case, unless and until it is otherwise amended by further proceedings before the PUC or by a court of competent jurisdiction on appeal.

Even though SARAAnever challenged the PUC’s decision by a proper appeal, it (SARAA) then went forward and completely disregarded that PUC decision and awarded an exclusive contract to American Taxi for taxi services, including outbound taxi services, at HIA. By awarding an exclusive contract to American Taxi on May 26, 2004, a monopoly of sorts occurred because only one taxi service provider could take outbound fares from HIA pursuant to that contract. In doing that, SARAA collaterally and additionally took away the consumer’s right to not only choose an outbound taxi service provider, but to also not have the possible consumer benefit that competitive multiple taxi service providers might yield.

We must note that at the same time that SARAA was attempting to regulate taxicab services at HIA, it (SARAA) was involved with a multi-million dollar renovation project, wherein it was upgrading the HIA terminal and general airport facilities. As a result, a substantial upgrade and enlargement of HIA was occurring, which one might presume was intended to increase the number of arriving and departing passengers at HIA, with its probable concomitant increase in the need for taxi services. SARAA has not disclosed to the court, to date, what type(s) of remuneration and/or other benefit(s) it (SARAA) intended to derive from letting an exclusive outbound contract for taxi services. Those matters will presumably be flushed out in the forthcoming proceedings before the PUC.

Once SARAA disregarded the PUC’s formal order by offering an exclusive contract to American Taxi, Capital City Cab filed a “petition for a preliminary injunction” and a “declaratory judgment complaint and petition for preliminary and permanent injunctions,” on June 1,2004, with this court. In light of that filing, this court scheduled the aforementioned pre-hearing conference. Prior to the conference, Capital City Cab filed an “amended petition for preliminary injunction” and an “amended declaratory judgment complaint and amended petition for preliminary and permanent injunctions.” SARAA filed an answer to the amended petition for preliminary injunction and preliminary objections to the amended declaratory judgment complaint. As mentioned earlier, on June 9, 2004 (the day before the evidentiary hearing on the petition), this court held the pre-hearing conference. Throughout the course of that conference, the main issue raised by SARAA was that Capital City Cab was not able to post the vehicle liability insurance mandated by SARAA, but apparently not mandated by the PUC. In fact, it was on April 1, 2004, that Capital City Cab was notified by SARAA that it (Capital City Cab) was no longer approved for outbound taxi service at HIA because of Capital City Cab’s failure to maintain $1,500,000 of liability insurance for its taxicabs. As a result of said notification, Capital City Cab filed a petition for emergency relief by issuance of a temporary order with the PUC requesting that the PUC issue a temporary order which allows Capital City Cab to continue providing outbound taxi service at HIA. The PUC, via a letter, denied the relief requested because a clear and present danger was not deemed to exist at that time, and therefore an ex parte emergency order was not viewed by the PUC to be warranted. (See PUC letter, 5/7/04.) However, the PUC did inform Capital City Cab that it could pursue this claim via a formal complaint to the commission. Id. On May 18,2004, a complaint was filed with the PUC by Capital City Cab. Disposition of that matter is presently pending and imminent before the PUC.

This court clearly realizes that under the Municipal Authorities Act (MAA), SARAA has certain powers to make determinations with regard to the services and improvements at the airport. 53 Pa.C.S. §5607. We do not believe that such power extends as far as declaring mandatory insurance requirements for taxi cabs that are merely pulling to the curbside to drop off fares. We find that to be especially true, given the fact that there are clearly statutory and regulatory enactments in existence regarding the scope and amounts of such insurance for taxi companies which firmly vest exclusive jurisdiction of such matters within the determination of the PUC. This court found that SARAA was quite probably usurping the PUC’s power through its (SARAA’s) requirement of $1,500,000 of insurance coverage per occurrence, even though the PUC had not ever established such an amount for taxi cab service providers.

As a result of not being able to resolve the issue(s) in dispute at the conference, an evidentiary hearing was held on June 10,2004. At that hearing, it was patently clear to this court that SARAA and Capital City Cab could agree on just about every issue, except one, insurance coverage. Capital City Cab believed that it should be allowed to continue picking up spontaneous fares at HIA because, in light of the PUC’s January 20, 2004 order, SARAA was not acting within its authority when it awarded American Taxi an exclusive contract. SARAA, on the other hand, believed that it was acting within its authority when it entered into the contract with American Taxi, even though it (S ARRA) had already acknowledged that the primary jurisdiction over the determination of such matters was vested in the PUC by the General Assembly.

It is important for us to note that SARAA was amenable to Capital City Cab picking up pre-arranged fares at HIA. However, SARAA was equally opposed to Capital City Cab picking up spontaneous fares at curbside. In fact, at the conclusion of the hearing, this court directed that both parties submit proposed orders for the court’s consideration. In SARAA’s proposed order, its main point of contention was that it did not believe that this court could allow a cab to remain at the curbside for up to one minute after a drop-off. SARAA vaguely claimed that this was precluded by federal law. However, SARAA never adduced any credible evidence at the hearing in support of that contention. As such, in its proposed order, SARAA requested immediate departure by Capital City Cab without any opportunity of securing a spontaneous outbound fare. SARAA also requested that our interim decree only apply to the parties involved. The only true difference in our interim decree and SARAA’s proposed order was the fact that we allowed Capital City Cab to remain at the curbside for up to one minute after drop-off. On balance, we viewed SARAA’s position to be unreasonable in light of the practical necessity for the cab driver to safely stop the arriving cab at the terminal curbside, for the cab driver and the passenger(s) to alight from the cab, for the driver to place the passenger’s luggage on the curb, receive payment for the fare, walk back to the driver’s door, open the door, reenter the cab, fasten a seat belt, start the vehicle, put the vehicle into gear, check for existing nearby traffic, and pull safely away from the curb. It should be specifically noted that we allowed UP TO ONE MINUTE for these usual functions to be concluded, and we also equally admonished the plaintiff’s employees (cab drivers) not to attempt to solicit an outbound fare or otherwise dally at the curbside to see if an outbound fare would somehow develop. The only exception to the foregoing restriction was the occurrence of a true spontaneous fare as we clearly outlined in our interim decree. Indeed, it was obvious to us that in the normal course of arrivals and departures at the curbside at HIA, it was very likely that regular private vehicles would likely exceed that one-minute time limitation, and, therefore, a Capital City Cab driver should not be treated any differently.

As a result of a full and careful consideration of all the information provided to this court, we issued an interim decree wherein we returned Capital City Cab to the status quo, ante, that had existed prior to the unilateral actions of SARAA, all pending the PUC’s ultimate disposition of this issue. A court of common pleas should not itself usurp the clear mandate of the General Assembly which vests primary jurisdiction of these matters in a governmental agency. However, we can and should exercise our equity power, but only to the degree minimally necessary under all of the circumstances, to restore the status quo, and allow the administrative law functions of the government to operate. Had we not allowed Capital City Cab the opportunity to revert to the status quo pending such resolution by the PUC, it (Capital City Cab) would have likely faced irreparable harm to its business interests.

ISSUES

In the instant appeal, SARAA raises the following issues before the Commonwealth Court:

“(a) Whether the court erred, as a matter of law, in refusing to grant SARAA’s preliminary objections to the complaint filed on behalf of Capital City Cab Service Inc. where, as here, the Commonwealth of Pennsylvania, Public Utility Commission has exclusive jurisdiction over the issues set forth in the pleadings in this matter and the order has the potential to set statewide precedent in airport operation....

“(b) Whether the court erred, as a matter of law, in awarding interim equitable relief authorizing Capital City to provide outbound taxi service at Harrisburg International Airport despite SARAA’s termination of its contract with Capital City and issuance of directive prohibiting Capital City from providing services on property owned by SARAA as authorized by the Municipal Authorities Act, 53 Pa.C.S. §5601 et seq....

“(c) Whether the court erred, as a matter of law, in awarding interim, equitable relief authorizing Capital City to provide outbound taxi service at HIA despite the fact that SARAA properly and reasonably exercised its discretion — as provided in the MAA and Pennsylvania Public Utility Code, 66 Pa.C.S. §101 et seq. — to solicit bids lawfully and properly award a contract for exclusive outbound taxi service....

“(d) Whether the court erred, as a matter of law, in awarding interim equitable relief compelling SARAA to allow taxi operations at HIA in a manner inconsistent with the policies promulgated pursuant to its statutory authority under the MAA, which policies were developed in accordance with safety and security mandates established by the Aviation and Transportation Security Act, 49 U.S.C. §40101 et seq., enforced by the Transportation Security Administration, and the Homeland Security Act, 6 U.S.C. §1101 et seq....”

DISCUSSION

Before we begin addressing the issues raised in this instant appeal, we will first address the standard utilized in this Commonwealth when determining whether or not a preliminary injunction should be granted, in whole or in part: “a court may grant a preliminary injunction only where the moving party establishes the following elements: (1) that relief is necessary to prevent immediate and irreparable harm which cannot be compensated by damages; (2) that greater injury will occur from refusing the injunction than from granting it; (3) that the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct; (4) that the alleged wrong is manifest, and the injunction is reasonably suited to abate it; and (5) that the plaintiff’s right to relief is clear. ... it is of course necessary that the moving party be able to show that he has a reasonable likelihood of success on the merits.” Lewis v. City of Harrisburg, 158 Pa. Commw. 318, 631 A.2d 807, 810 (1993) (internal citation omitted); Riverside School Board v. Kobeski, 146 Pa. Commw. 106, 604 A.2d 1173 (1992).

It was clear to this court that is was necessary for us to exercise a limited amount of our equity power because, if we failed to do so, Capital City Cab would likely have suffered the irreparable harm of being put out of business by the actions of SARAA, which actions appear to be unlawful. Further, we believed that SARAA would not suffer any real injury from the issuance of our limited interim decree, especially since the PUC was prepared to move forward to hear and resolve the matter. Additionally, given the prior ruling of the PUC, which was not appealed by SARAA, it was quite apparent that the plaintiff had a right to interim relief in order to allow the PUC a sufficient opportunity to make its determination on the merits of the case. In the final analysis, all that our interim decree was meant to do was to return the parties to the status quo, ante, pending a resolution of this matter by the PUC.

With regard to the issues raised in this appeal, SARAA first asserts that this court erred in issuing our interim decree because we do not have jurisdiction over this matter. From SARAA’s perspective, that premise appears to be based on the principle that rates and practices regarding deposits are within the exclusive jurisdiction of the PUC. See Morrow v. Bell Telephone Co. of Pennsylvania, 330 Pa. Super. 276, 280, 479 A.2d 548, 551 (1984). Further, SARAA asserts that it is within the PUC’s authority to rule on an agreement’s validity. See Octoraro Railway Inc. v. Pennsylvania Public Utility Commission, 85 Pa. Commw. 283, 287-88, 482 A.2d 278, 279 (1984). We will certainly agree with SARAA’s initial contention that the PUC has primary jurisdiction over the core issues in dispute, and it is for that very reason that we deferred exercising our equity jurisdiction any further than restoring the status quo, ante, and remanding the matter to the PUC for a full hearing and adjudication.

What SARAA seems to forget was that this court was not asked to rule on a validity of an agreement, nor were we asked to make a decision on a “service practice,” we were simply asked to preliminarily allow Capital City Cab to continue its outbound taxicab service at HIA pending a full hearing on this matter before the PUC. That request appears to be within this court’s jurisdiction because, as Capital City Cab stated, “[ajlthough the public utility law grants to the commission general supervisory and regulatory power over public utilities,... the code does not confer an exclusive jurisdiction to decide all matters involving regulated public utilities. On the contrary, except as otherwise expressly provided in the code, the commission’s powers and duties do not ‘abridge or alter the existing rights of action or remedies in equity or under common or statutory law of this Commonwealth.’ ” Virgilli v. Southwestern Pennsylvania Water Authority, 58 Pa. Commw. 340, 343, 427 A.2d 1251, 1253 (1981). (citations omitted)

As such, all that this court did was act within our jurisdiction in our interim decree when we returned things to the status quo, pending a resolution of this matter with the PUC.

With regard to SARAA’s second contention that this court erred when we allowed Capital City Cab to continue to provide outbound taxi services at HIA after SARAA issued its directive prohibiting such action, we strongly disagree.

Again, we must unequivocally state that SARAA clearly acknowledged that the primary and exclusive jurisdiction of regulating taxi services in this Commonwealth lies in the hands of the PUC. SARAA made that acknowledgment when it (SARAA) requested that the PUC give SARAA that veiy authority to regulate taxicab service at HIA. The PUC denied the request in their January 20, 2004 formal order, and SARAA failed to appeal that decision. As such, as we also mentioned earlier, the January 20,2004 order is the present law of this case. In light of that salient fact, this court finds the law cited by SARAA in support of its statement of matters complained of on appeal to be unpersuasive on that issue and on the remaining issues also raised in the statement of matters complained of on appeal. Indeed, SARAA is now essentially estopped from arguing to the contrary of that proposition.

Since the PUC did not grant SARAA’s request, this court believes that we were correct in returning Capital City Cab to the status quo until the PUC determines whether or not SARAA was correct in awarding an exclusive contract to American Taxi. As such, we do not believe that we erred in making our temporary determination to allow the PUC an opportunity to fulfill its statutory mandate.

SARAA next asserts that this court erred when we allowed Capital City Cab to provide outbound taxi service at HIA. We do not believe that SARAA truly understands the limitations of our interim decree, because we are not allowing Capital City Cab to provide full outbound taxi service, which would involve Capital City Cab utilizing the Q-line.

First and foremost, the petition at no time asked that this court permit Capital City Cab to be one of the cabs that line up in the cab queuing line (Q-line) for potential outbound fares. The Q-line at HIA is where outbound taxicab service providers line up to be sequentially summoned to the curbside to pick up passengers who are departing the airport. The Q-line is a separate and private parking area which is, indeed, under the exclusive control of SARAA. During both the pre-hearing conference and the hearing, it was expressly understood that Capital City Cab was not asking for, nor was this court allowing them, to line up at the Q-line. Further, our interim decree, at no time, makes reference to Capital City Cab being allowed to line up in the Q-line. What our interim decree expressly states is that:

“Pursuant to its authorization from the PUC, Capital City Cab shall have the right to pick up pre-arranged fares from HIA in accordance with the following terms and conditions. Capital City Cab may pick up the prearranged passenger at HIA’s terminal’s curbside provided that the passenger is ready and willing for immediate loading (which means that the passenger is waiting at the curbside with his/her bags). In that case, Capital City Cab employee may pick up the passenger, together with his/her luggage (if any) and immediately depart the terminal area. However, if the pre-arranged passenger is not at the curbside waiting, Capital City Cab employee shall immediately proceed to HIA’s short-term parking facility and return to the terminal by foot, in order to wait for the pre-arranged passenger. Upon the arrival of the pre-arranged passenger, Capital City Cab employee and such passenger must then proceed to the short-term parking area where loading, followed by immediate departure, shall occur.

“Pursuant to its authorization from the PUC, in the event that a cab operated by Capital City Cab disembarks an arriving passenger at the curbside, as aforesaid, and should there be another outbound fare that coincidently and simultaneously appears at the curbside and wishes to engage the services of said Capital City Cab vehicle, the employee of Capital City Cab shall be permitted to receive that fare, and his/her personal luggage (if any) for outbound departure from the HIA facility. However, no Capital City Cab employee shall linger or otherwise delay in departing the premises of the HIA facility in hopes of possibly securing an outbound fare or otherwise, and once the arriving passenger and his/her luggage have been deposited at the curbside, Capital City Cab employee shall depart the curbside area within one minute, unless a bona fide simultaneous outbound fare is encountered, as set forth in paragraph no. 2 above.” Interim decree, June 14, 2004, ¶¶ 2-3. (emphasis added)

As referenced above, the terms of this court’s interim decree expressly state that, pursuant to the PUC’s authorization, Capital City Cab may pick up the pre-ar-ranged fares, in accordance with the above referenced condition or drop passengers off at HIA. (See also, interim decree, June 14, 2004, ¶ 2.) SARAA does not appear to have an issue with that concept. What SARAA has an issue with is the fact that this court allowed Capital City Cab to drop passengers off and if, within one minute of that time wherein the passenger is being dropped off, (so essentially simultaneous to the drop-off) an outbound fare is encountered at curbside, Capital City Cab would be allowed to pick up said fare. Had we not allowed this one-minute period of time to disembark the arriving passenger(s) and their luggage, as discussed earlier, the passenger(s) would essentially have to grab his/her luggage, pay the fare, and disembark the vehicle while the vehicle was still coming to a stop at the curbside. That concept appears to be absolutely unreasonable.

With all that in mind, we will address SARAA’s next contention, wherein it asserts that this court erred, as a matter of law, because we allowed taxi operations to occur at HIA which were inconsistent with the policies promulgated under MAA and violated the Homeland Securities Act.

Through those assertions, SARAA is doing nothing more than attempting to divert attention away from the fact that it does not want Capital City Cab to get spontaneous fares from HIA customers because it (SARAA) has “chosen” American Taxi to receive those fares. Not once did SARAA point to a specific section of any statute or code which directly supports its assertions. Moreover, we must again point out that this court allowed Capital City Cab to remain at the curb for only one minute, thus giving the departing passenger(s) a chance to disembark the taxi vehicle in a manner that is accommodating to the passenger(s). Additionally, there was never any kind of an assertion by SARAA that it inspects, searches or otherwise regulates any other taxi company vehicle or other curbside-arriving vehicle for nefarious items or other potential dangers. The attempt to invoke those federal statutes is nothing more than the proverbial “red herring” designed to obscure and deflect SARAA’s true intentions, and a rather infirm attempt to justify its seemingly unlawful conduct. We were not persuaded at the hearing of the viability of such claims, and that assertion has not gained more credibility over the course of time. Indeed, to paraphrase a time-worn cliché on that assertion, we find that “a ruse by any other name is still a ruse.”

For the reasons mentioned above, we believe that our interim decree should be upheld pending the PUC’s further disposition of this matter.

ORIGINALLY ISSUED AT HARRISBURG November 8, 2004.

      . We must note that the current minimum insurance required by the PUC certainly does not appear to be in keeping with any kind of modern concept of liability coverage for common carriers, especially considering the strict liability to which such carriers are subjected with regard to their passengers, and possibly others. Pursuant to 66 Pa.C.S. §512, the PUC may order that:
      “All motor carriers of passengers, whose current liquid assets do not exceed their current liabilities by at least $100,000, shall cover each and every vehicle, transporting such passengers, with a public liability insurance policy or a surety bond issued by an insurance carrier or a bonding company authorized to do business in this Commonwealth, in such amounts as the commission may prescribe, but not less than $5,000 for one and $10,000 for more than one person injured in any one accident.” 66 Pa.C.S. §512.
      The PUC was granted exclusive regulatory power to mandate insurance requirements by the legislature on July 31, 1987 and said requirements were amended, most recently, on July 7, 2000. Those insurance requirements can be found in 52 Pa.Code §32.11. What the Pennsylvania Code requires is that insurance maintained by a common carrier: “shall be in an amount not less than $35,000 to cover liability for bodily injury, death or property damage incurred in an accident arising from authorized service. The $35,000 minimum coverage is split coverage in the amounts of $15,000 bodily injury per person, $30,000 bodily injury per accident and $5,000 property damage per accident. This coverage shall include first-party medical benefits in the amount of $25,000 and first-party wage loss benefits in the amount $10,000 for passengers and pedestrians. 52 Pa.Code §32.11(b).”
      This court was rather startled that in the year 2004, the PUC would continue to permit such relatively insignificant sums of insurance in light of the potential liability associated with taxicab service with routes at the airport or taxicab routes, generally. As a general proposition, the monetary amount of $1,500,000 which was attempted to be imposed by SARAA was not unreasonable; however, the establishment of a minimum amount appears to be within the exclusive jurisdiction of the PUC and as set forth by statute.

      . This case is scheduled to be heard by the PUC on November 19, 2004.

      . The standard set forth for granting a preliminary injunction will be discussed later in this writing.