author: DOBSON, J,

text:
    Phebus v. UPMC Horizon

      C.P. of Mercer County,
    no. 2001-4211.

      Darrell L. Kadunce, for plaintiffs.

      Lynn E. Bell, for defendant Graham.

      Michael D. Heintzman, for defendant Sakkal.
    March 4, 2005
   DOBSON, J,

The matters currently before the court for disposition are the summary judgment motions of defendants Graham and Sakkal. For the reasons that follow, the motion of defendant Graham will be denied and the motion of defendant Sakkal will be granted.

Pa.R.C.P. 1035.2 provides that any party may move for summary judgment in whole or in part as a matter of law:

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

A court may grant a motion for summary judgment only where the right is clear and free from doubt. Ducjai v. Dennis, 540 Pa. 103, 113, 656 A.2d 102, 107 (1995). “The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991).

In opposing a motion for summary judgment, the adverse party “may not rest upon the mere allegations or denials of the pleadings.” Pa.R.C.P. 1035.3(a). Instead, the nonmoving party “must adduce sufficient evidence on [all] issue[s] essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996).

Viewed in the light most favorable to plaintiffs as the nonmoving party, the facts central to both motions for summary judgment are summarized as follows. On December 15,1999, plaintiffs’ decedent, William Langiotti, was admitted to UPMC Horizon in Greenville, Pennsylvania, for treatment of pneumonia. (Depo. of Graham, p. 21.) Mr. Langiotti was also suffering from the complications of terminal lung cancer when he was admitted to the hospital. (Depo. of Sakkal, p. 32.) The decedent began having acute respiratory difficulties in the evening hours of December 23,1999, after vomiting and aspirating while eating his dinner.

Defendant Graham received a telephone call from the hospital regarding the decedent at approximately 12:05 a.m. on December 24, 1999. (Depo. of Graham, p. 26.) He initially advised the nurse to place the patient on a ventilator, move him to the intensive care unit, and give him Valium to ease his anxiety. Upon being advised by the nurse that the decedent was “DNR,” meaning the patient had a do not resuscitate order in place, defendant Graham cancelled this order. He then ordered a small dose of Valium to ease decedent’s anxiety. (Depo. of Graham, pp. 26-27.) Defendant Graham did not go to the hospital to see the decedent, in substantial part because he believed the patient was DNR. (Depo. of Graham, p. 30.) The decedent died at approximately 10:35 a.m. on December 24, 1999.

Plaintiffs initiated this action on December 20, 2001, by filing a praecipe to issue a writ of summons. The writ of summons named as defendants Doctor Graham, Doctor Sakkal, and several others. Plaintiffs filed a complaint on June 6, 2002, and reissued the writ on July 16,2002. Defendant Graham filed an answer on September 18, 2002, and defendant Sakkal filed an answer on March 5, 2004. Defendant Graham filed a motion for summary judgment on August 31,2004, and defendant Sakkal filed a motion for summary judgment on October 29, 2004. Plaintiffs have attached an expert report and an amended expert report to their motions in opposition to summary judgment. It is these motions for summary judgment that are currently before this court.

Defendant Graham moved for summary judgment on two theories: (l)that 42 Pa.C.S. §8331, commonly known as the Good Samaritan statute, provided him an absolute defense; and (2) the failure of plaintiffs’ expert report to set forth sufficient evidence to support this cause of action against defendant Graham.

The Good Samaritan statute provides as follows:

“Section 8331. Medical Good Samaritan civil immunity

“(a) General rule. — Any physician or other practitioner of the healing arts or any registered nurse, licensed by any state, who happens by chance upon the scene of an emergency or who arrives on the scene of an emergency by reason of serving on an emergency call panel or similar committee of a county medical society, or who is called to the scene of an emergency by the police or other duly constituted officers of a government unit, or who is present when an emergency occurs and who, in good faith, renders emergency care at the scene of the emergency, shall not be liable for any civil damages as a result of any acts or omissions by such physician or practitioner or registered nurse in rendering the emergency care, except any acts or omissions intentionally designed to harm or any grossly negligent acts or omissions which result in harm to the person receiving emergency care.

“(b) Definition. — As used in this section ‘good faith’ shall include, but is not limited to, a reasonable opinion that the immediacy of the situation is such that the rendering of care should not be postponed until the patient is hospitalized.” 42 Pa.C.S. §8331.

There are a number of reasons that the Good Samaritan statute does not apply to the facts of the current case. Defendant Graham was not “at the scene of the accident” as required by the statute. Instead, he gave directions over the phone to the nurses who were at the hospital. Also, subsection (b) implies that the Good Samaritan statute does not apply to hospitalized patients. As the decedent was in the hospital, the statute does not apply. Therefore, the Good Samaritan statute does not provide defendant Graham with a defense to this action.

Defendant Graham next alleges that plaintiffs’ expert report does not set forth sufficient evidence to hold him liable. We believe the evidence, when viewed in the light most favorable to plaintiffs as the nonmoving party, is sufficient to survive summary judgment on this theory. Regardless of whether or not he was the physician on call on the evening of the decedent’s death, defendant Graham had a duty not to prescribe a drug that would worsen a patient’s condition. According to plaintiffs’ expert, defendant Graham did exactly that. Plaintiffs’ expert indicated that it is medical error to prescribe Valium to a patient who is experiencing respiratory difficulty before that patient is placed on a ventilator. The expert further indicated that this error falls below the acceptable standard of care for a physician, and that the administration of the Valium contributed to decedent’s death by respiratory failure. Although the expert report is not as clear as the court would like regarding duty, breach, acceptable standard of care, and causation, we believe it is sufficient to provide plaintiffs the evidence necessary for their claims against defendant Graham to survive summary judgment. Defendant Graham’s motion will, therefore, be denied.

The court having concluded that defendant Graham’s motion for summary judgment must be denied, we now turn to the motion filed by defendant Sakkal. Defendant Sakkal moves for summary judgment on two independent grounds. The first ground is a statute of limitations and improper service argument. The second argument is that plaintiffs failed to adduce sufficient evidence to support a cause of action against defendant Sakkal. This court will only address the first theory, because our decision on that issue renders the second theory moot for purposes of defendant’s current motion for summary judgment.

Defendant Sakkal first asserts that he is entitled to summary judgment based on a statute of limitations/improper service theory. On February 3, 2005, this court held an evidentiary hearing during which plaintiffs presented evidence of their efforts. Following the hearing, the court issued findings of fact. An amendment to these findings of fact was issued by this court on February 8, 2005. We hereby incorporate the findings of fact and the amended findings of fact.

As viewed in the light most favorable to plaintiffs as the nonmoving party, the facts most relevant to defendant Sakkal’s motion for summary judgment are as follows. Plaintiffs’ decedent, William Langiotti, died on December 24, 1999. A writ of summons was issued on December 20,2001, four days before the statute of limitations expired. The Sheriff of Mercer County made an attempt to serve defendant Sakkal, but he could not be found. The complaint was filed on June 6,2002, and the writ was reissued on July 16, 2002.

Having been unable to locate defendant Sakkal by traditional means, plaintiffs sought and were granted leave to serve process by publication on October 13,2002,10 months after the suit was initiated. This order also directed the plaintiffs to reinstate the complaint. Plaintiffs have presented no evidence of their efforts to serve defendant Sakkal after the initial attempt by the sheriff and prior to the October 13, 2002 order.

On December 17, 2002, plaintiffs sent a letter to an attorney who represented defendant Sakkal in a different matter in a further attempt to locate him. Plaintiffs presented no evidence of further attempts to locate defendant Sakkal after the October 13,2002 order. Despite the court’s direction to the contrary, plaintiffs neither reinstated the complaint nor reissued the writ after July 16,2002. Plaintiffs also delayed publication until October of 2003, a full year after the court ordered plaintiffs to serve notice by publication.

Based on these facts, service upon defendant Sakkal is improper and the statute of limitations has elapsed for two individually sufficient but related reasons. The first reason is based on the requirements of Pa.R.C.P. 401 and 404 and the case law interpreting those rules. Rule 401 (a) mandates that, in order for service to be effective, it must occur within 30 days of the issuance of the writ or the filing of the complaint. Pa.R.C.P. 401(a). If service is not accomplished within this time period, the writ may be reissued or the complaint reinstated any number of times in order to provide more time to effectuate service. Pa.R.C.P. 401(b)(1).

For service outside the Commonwealth, the statutory time period is 90 days rather than 30 days. Pa.R.C.P. 404. It is the understanding of this court that sometime after the initial attempt to serve defendant Sakkal, plaintiffs were made to believe that defendant Sakkal was outside the Commonwealth of Pennsylvania. Therefore, we will err on the side of caution and use the longer 90-day period provided by Rule 404 in our analysis of this issue.

Defendant was served notice by publication in October 2003. The last time the writ was reissued was July 16, 2002. The complaint was not reinstated after its initial filing on June 6, 2002. Therefore, service of defendant Sakkal by publication did not occur within 90 days of the reissuance of the writ or reinstatement of the complaint. Service made after expiration of the 30-day limit on service (90 days for service outside the Commonwealth) may be considered void. Fox v. Thompson, 377 Pa. Super. 39, 546 A.2d 1146 (1988). Therefore, the service by publication in October 2003 of defendant Sakkal was ineffective and void. Defendant Sakkal’s motion for summary judgment must therefore be granted, and plaintiffs’ claims against him must be dismissed.

Service of defendant Sakkal is also improper based on the logic of Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), and its progeny. These cases stand for the proposition that the statute of limitations is not tolled, despite the provisions of Pa.R.C.P. 401 and 404, for any time period during which the plaintiff did not undertake good faith efforts to serve a defendant. See e.g., Cahill v. Schults, 434 Pa. Super. 332, 643 A.2d 121 (1994).

There is no mechanical approach for courts to apply in determining what constitutes good faith efforts to serve a defendant — analysis must be on a case-by-case basis. Cahill v. Schults, 434 Pa. Super. at 337, 643 A.2d at 123. Some factors to be considered are whether the plaintiff complied with the rules of civil procedure, the timeliness of the service, and the number of times the plaintiff attempted service. Ramsay v. Pierre, 822 A.2d 85 (Pa. Super. 2003). It is the plaintiffs’ burden to show that their efforts were reasonable. Cahill v. Schults, 434 Pa. Super. at 337, 643 A.2d at 123.

Based on the facts of this case, it is clear to this court that plaintiffs have failed to meet their burden of showing the reasonableness of their attempts to serve defendant Sakkal. Plaintiffs did make one attempt to serve defendant Sakkal at his last known address shortly after the writ was issued in December 2001. Plaintiffs made no other attempt at service prior to October 2003. The plaintiffs’ only other effort to locate defendant Sakkal occurred in December 2002, when plaintiffs wrote a letter to a former counsel of defendant Sakkal. Other than this letter, there is no evidence of even minimal efforts to locate defendant Sakkal during the approximately 21 months that elapsed between the initial sheriff’s return in January 2002 and the service by publication in October 2003. The 22-month lapse between the initiation of the lawsuit and the service by publication, along with the scant efforts to locate and serve defendant Sakkal, strongly suggest that plaintiffs did not exercise good faith in attempting to serve defendant Sakkal. Ramsay v. Pierre, 822 A.2d 85 (Pa. Super. 2003). Plaintiffs’ conduct certainly served to stall in its tracks the legal machinery plaintiffs set in motion by issuing the writ in December 2001. Lamp v. Heyman, 469 Pa. at 478, 366 A.2d at 889.

This court is most influenced, however, by the fact that plaintiffs waited a full year after being permitted by court order to serve notice by publication to actually publish that notice. This 12-month delay is inexcusable. Plaintiffs also never reinstated the complaint despite an express instruction to do so. Again, utilizing the arguments of Ramsay v. Pierre, we find that, although plaintiffs did make at least some effort to comply with the Rules of Civil Procedure, plaintiffs disregarded an order of court, and that this blatant disregard of an order of court constitutes a clear lack of good faith under Lamp and Ramsay.

We hereby hold that plaintiffs did not exercise good faith in their attempt to serve defendant Sakkal. Based on Lamp v. Heyman and its progeny, the statute of limitations was not tolled for all time periods when plaintiffs were not utilizing good faith efforts. As only four days remained on the original statute of limitations before plaintiffs filed the writ on December 20, 2001, the statute of limitations ran as to defendant Sakkal long before plaintiffs served him by publication in October 2003.

Based on these reasons, defendant Sakkal was never properly served with notice within the statute of limitations. Defendant Sakkal’s motion for summary judgment will therefore be granted, and plaintiffs’ claims against defendant Sakkal will be dismissed. It is not necessary to decide defendant Sakkal’s second argument relating to the merits of plaintiffs’ claim against him, as our ruling on the statute of limitations argument renders that issue moot. Defendant Sakkal will remain in the suit for purposes of defendant Graham’s cross-claim only.

And hence this order:

ORDER

And now, March 4, 2005, it is hereby ordered that defendant Graham’s motion for summary judgment is denied. It is further ordered that defendant Sakkal’s motion for summary judgment is granted, and summary judgment is entered in favor of defendant Sakkal and against plaintiffs on plaintiffs’ complaint.

Exhibit A

C.H. McGowen MD

90 Oaktree Lane

Warren, OH 44484

October 11, 2004

Atty. D.J. Kadunce

300 North McKean St.

Butler, PA 16001

Dear Atty. Kadunce:

Having written to you earlier in the case regarding Richard Langiotti (deceased), I have reviewed the subsequent information which you sent; a deposition of Dr. Saad Sakkal who now resides in Syria. Since Dr. Sakkal’s testimony, which represents new information, is diametrically opposed to that of Dr. David Graham, I reserve the right to revise and extend my remarks in this case.

I will not repeat all of the facts in the case, as they are well known to you, but I will refer to my previous letter of June 19, 2004, and the pertinent facts therein where revisions need to be made in regard to the culpability of Dr. David Graham.

The “do not resuscitate” (DNR) order which was placed on the patient’s chart on December 21,1999, had apparently been the work of Dr. Sakkal; as per his own testimony. While there seems to be some question as to the family’s understanding of that order and their agreement or disagreement with it, the fact remains that Dr. Sakkal thought it prudent to write for a DNR in view of Mr. Langiotti’s terminal and hopeless physical state. However, it is unethical to write that without a family’s or a patient’s full understanding of what it will mean. Mr. Langiotti’s family was obviously unaware of the order, the implications for future care or its consequences.

Dr. Sakkal insisted in his sworn testimony that he was not on call on the evening of December 23, 1999. Instead he insisted that it was his associate, Dr. David Graham’s call night. Dr. Graham has insisted, in a previous testimony, that it was Dr. Sakkal who was on call. It is impossible for me to determine with absolute certainty if it was truly Dr. Sakkal or Dr. Graham that was on call on the day of December 23, 1999. However, given the newly received testimony of Dr. Sakkal in which he stated that he did discuss Mr. Langiotti’s care with Dr. Graham, the fact that he had placed a DNR order on Mr. Langiotti’s chart would certainly have been included in that discussion. Furthermore, since that newly-received testimony clearly states that Dr. Graham was on call, with full responsibility to provide quality care for Mr. Langiotti, on the dates of December 23, 1999 and December 24,1999, my opinion with regard to the responsibility and liability of Dr. Graham must of necessity change. If Dr. Sakkal’s testimony is to be believed, Dr. Graham had a medical, ethical and moral duty to provide Mr. Langiotti with the utmost quality care and management, as I will outline below.

Dr. Graham’s Valium order was still improper given the IW’s respiratory problems. A sedative such as that should await the application of a ventilator following intubation unless the patient and or family have decided on a passive euthanasia approach to the terminal state; which was obviously not the case here given the irate nature of the son when learning of the DNR order. Furthermore, Dr. Graham’s failure to go in to see a patient about whom he knew so little is not only an error in judgement but also falls short of a reasonable standard of medical practice. When one physician is taking call for another physician, the latter’s patients should not fall through the cracks. Any time a patient’s condition goes from bad to worse that person deserves to have a physician lay hands on him or her very promptly. The only way that a physician can ever possibly know what is really transpiring in an acutely ill patient is to make a personal bed side visit, take an adequate history from the patient, the family or nursing staff and then do a complete physical exam. Upon deciding on a particular plan of attack for diagnosing and treating the problem the physician should then linger until he sees if his plan was effective. The unfortunate issue here is that none of the several physicians involved in this case ever came in to examine the patient between the time during which he aspirated food into his tracheo-bronchial tree and his demise several hours later.

The failures to meet the usual and reasonable standards of medical practice by each of the doctors whom I addressed in this letter, and in my previous report, were a direct and proximate cause of the untimely death of Mr. Langiotti. While it is impossible to know for certain how long Mr. Langiotti would have lived, given his ongoing battle with terminal cancer, it can be stated with a reasonable degree of medical certainty that the failure by the defendants to meet the medical standards that I have outlined in this letter and my previous report, were contributoiy factors in Mr. Langiotti’s uncomfortable and early demise.

My previous comments regarding the culpability of the UPMC Horizon hospital system and Aiman Dsag-nestani MD were not altered by Dr. Sakkal’s testimony and thus remain as stated in my former letter to you, dated June 19, 2004.

Yours truly,

/s/C.H. McGowen MD

C.H. McGowen MD

Exhibit B

Charles H. McGowen MD

90 Oaktree Lane

Warren, OH 44484

June 19, 2004

D.J. Kadunce

300 North McKean St.

Butler, PA 16001

Dear Atty. Kadunce:

I have reviewed all of the medical documentation which you have sent to me regarding the case of Richard Langiotti (deceased), and have reached several conclusions.

As you know, Mr. Langiotti was, at the time of his demise, a 74-year-old gentleman who suffered from a non-small cell lung cancer that had metastasized to his brain. He was admitted to the UPMC Horizon health care facility on December 15,1999, for the treatment of pneumonia. When, after nine days of appropriate treatment he had sufficiently stabilized he was transferred to Horizon’s Transitional Care Unit (TCU) on December 23,1999. It was there that a series of unfortunate events, upon which I shall comment, transpired that ultimately led to his demise.

While Mr. Langiotti had been confined to the acute care facility he had been receiving supplementary oxygen therapy by way of a cannula. When he was in the TCU, for some reason that is not particularly clear, there came an order to place a full face mask on him; he was reportedly eating his dinner at the time. Soon thereafter he vomited and aspirated. It was then that his course began a downward spiral and he was drawn into the vortex of death.

As I have reviewed the defendants in this case I find four most culpable: Aiman Dagnestani MD, Saad Sakkal MD, David Graham DO and UPMC Horizon.

Dr. Dagnestani, a medical oncologist, was the attending physician and it was his primary responsibility to closely follow his patient during his time in the acute care hospital and the TCU. On December 21, 1999, a “do not resuscitate” (DNR) order was placed in the chart. That was allegedly done without the permission of either the patient or his family, but with Dr. Dagnestani’s full knowledge. That is inappropriate, unethical and utterly against hospital policy. It even borders on depraved indifference. It was Dr. Dagnestani whom the nurses first notified after the patient had vomited at approximately 6 p.m. on the evening of December 23,1999, and he gave telephone orders but did not come in to the TCU to examine his patient. Following those orders, the nurse gave IV Ativan, a respiratory depressant. Giving such a soporific drug to a person in need of supplemental oxygen therapy is inappropriate and unreasonable.

Dr. Sakkal was apparently the primary care physician and associate of Dr. Graham who was reportedly on call for his group on the evening of December 23, 1999, but he could not be reached by pager or by phone, according to the nurses. Dr. Graham’s testimony was that his pager was off because Dr. Sakkal was the one on call. Dr. Sakkal’s inaccessibility during his on-call time makes him culpable in this case.

Dr. Graham is unfortunately the recipient of bad information and he acted accordingly. His first inclination was to admit the patient to the medical intensive care unit (MICU) upon hearing of his extreme condition. However, when told that the patient was “DNR” he rescinded the order. Dr. Graham did err at 12:05 a.m. when he gave a patient Valium who was already having trouble with his respirations. It was then that he had ordered the transfer to the MICU. It is proper to sedate an anxious patient who has been placed on a ventilator, but not until then. Dr. Graham did not come in to see the patient; however, he was not the patient’s primary care physician, the one on call, nor did he think that he could alter the course of a patient with a DNR status.

The unfortunate issue here is that no physician actually laid hands on this patient during his time of ex-tremis, between the aspiration of food and his death several hours later. Neither Dr. Dagnestani, nor the physician taking his call, if there was one, nor Dr. Sakkal who could not be reached.

Pradeep Kumar MD, a cardiologist, was asked to see Mr. Langiotti on December 20,1999, and gave telephone orders, without seeing the patient. That is a bad practice, but one does not know the circumstances connected with his inability to see the patient in the early evening that day. This physician was not responsible for the patient’s care on the evening of December 23, 1999, and should not be held liable for the events that transpired.

UPMC Horizon was remiss in not providing an in-house physician to manage such cases. One cannot fault them for the understaffing of the TCU, however, as patients there should not require the close staff monitoring that Mr. Langiotti did in his last hours of life. However, realizing the marked change in the patient’s condition and failing to insist on his return to the acute care facility, the nurses who are employed by UPMC Plorizon were in error. There are physicians connected with the hospital who can take command in such cases. Of course the DNR on the patient’s chart could well have influenced their inaction and failure to be more insistent that physicians be paged more often.

The main litigant here seems to be Aiman Dsagnestani MD. He was the admitting physician and his DNR order determined the course of events that were followed after the nurses reached Dr. Graham. Furthermore, the DNR order may have also subtly affected the urgency, or non-urgency, with which the nurses responded to Mr. Langiotti’s problems. It was he who first knew of the patient’s vomiting and aspiration and it was he who gave the IV Ativan that began the downward spiral of respiratory depression from which the man died. His blood oxygen levels were extremely low and his blood carbon dioxide levels extremely high prior to his demise.

One can only guess at what Mr. Langiotti’s quality of life would have been had he not aspirated. He was a man with terminal cancer and would have likely been confined to the TCU or his home under the care of hospice. However, he was deprived of those final hours, days or weeks when he could say his final goodbyes to his family and enjoy whatever time he had left; only God knows.

Yours truly

/s/C.H. McGowen MD

C.H. McGowen MD

FINDINGS OF FACT

And now, February 3, 2005, this matter being before the court for an evidentiary hearing on plaintiffs’ efforts to serve defendant Sakkal; and after receipt of testimony, the court makes the following findings of fact:

(1) On December 24, 1999, William Langiotti died.

(2) On December 20, 2001, summary judgment was filed.

(3) On January 15,2002, notice of sheriff was termed indicating defendant Sakkal could not be found.

(4) On June 6, 2002, the complaint in this matter was filed.

(5) On July 16, 2002, the writ was reissued.

(6) On October 10, 2002, plaintiff filed a motion for leave to serve by publication and said motion was granted on October 13, 2002.

(7) By letter dated December 17,2002, plaintiff sent a letter to Attorney Silverman in Pittsburgh, whose firm was listed as representing Dr. Sakkal in other matters, asking for information regarding the whereabouts of Dr. Sakkal. No response was received to said letter.

(8) In October of 2003, plaintiffs served Dr. Sakkal via publication pursuant to the order of October 13,2002.

AMENDED FINDINGS OF FACT

And now, February 8, 2005, the court having discovered a clerical error, the second finding of fact of February 3,2005, is amended to read as follows: “On December 20, 2001, a writ of summons was filed.”

      . It is noted that there is a dispute as to whether defendant Graham or defendant Sakkal was the physician “on-call” on the evening of the decedent’s death. There is also disagreement regarding whether there actually was a valid do not resuscitate order concerning the decedent. These questions are ones of fact, and for today’s purposes, we resolve them in plaintiffs’ favor.

      . A copy of the expert report and the amended expert report are attached hereto.

      . A copy of these documents is attached to this opinion.

      . It is noted that defendant Sakkal can no longer be properly served in this case. A plaintiff may reinstate a complaint or reissue a writ any time after the initiation of the lawsuit for a period equal the original statute of limitations for the underlying action. Smith v. City of Philadelphia, 148 Pa. Commw. 84, 609 A.2d 873 (1992). Since more than two years have passed since the writ was first issued, the writ cannot be reissued and the complaint cannot be reinstated at this date. Therefore, service of defendant Sakkal is no longer possible.

      . This court is cognizant of the procedural nightmare that the statute of limitations and improper service issues present under the particular facts of this case. Defendant Sakkal did not file preliminary objections, instead raising the statute of limitations and improper service issues in his answer and new matter. Defendant Sakkal also failed to include a notice to plead with his new matter.
      This court has discussed two key issues regarding the statute of limitations and improper service arguments of defendant Sakkal. As discussed in the text of this opinion, these two issues are plaintiffs’ compliance with Pa.R.C.P. 401 and 404 and whether plaintiffs undertook good faith efforts to serve defendant Sakkal pursuant to the requirements of Lamp v. Heyman. There seems to be some confusion in the case law about whether arguments of this nature are really arguments regarding improper service, which must be raised on preliminary objection, or arguments relating to the statute of limitations, properly raised in new matter.
      Pa.R.C.P. 1028(a)(1) provides that issues relating to improper form of service must be raised in a defendant’s preliminary objections. If such arguments are not raised on preliminary objection, they will be deemed waived. Cinque v. Asare, 401 Pa. Super. 339, 343, 585 A.2d 490, 492 (1990). Cinque expressly states that defects in service cannot be collaterally attacked by asserting the statute of limitations in a defendant’s answer and new matter, but instead must be addressed in preliminary objections. It seems at least arguable that because this lawsuit was initiated within the prescribed statute of limitations, defendant Sakkal’s statute of limitations argument is based on the failure of plaintiffs to properly serve defendant Sakkal within the tolling period, and therefore would be deemed waived by defendant’s failure to file preliminary objections.
      Despite this possible broad reading of Cinque, two Superior Court cases indicate that Lamp v. Heyman good faith arguments are properly raised in a defendant’s answer and new matter. Devine v. Hutt, 863 A.2d 1160 (Pa. Super. 2004); Moses v. T.N.T. Red Star Express, 725 A.2d 792 (Pa. Super. 1999). Although Moses does not directly address the issue, instead proceeding to discuss the merits of the good faith issue without reference to whether the argument had to be made at preliminary objection, Devine expressly states that Lamp v. Heyman arguments are in fact statute of limitations arguments and not improper service arguments that must be raised on preliminary objection. These three cases, when considered together, indicate that the Rule 401/404 argument should have been raised on preliminary objection, but the Lamp v. Heyman issue was properly raised in defendant Sakkal’s new matter.
      This court need not address this procedural quagmire, however, because plaintiffs proceeded to argue the merits of defendant Sakkal’s statute of limitations issue argument, and have never objected to the fact that defendant Sakkal improperly raised the service issue in new matter. Although stated in much more succinct form, Rule L210 mirrors Pa.R.A.P. 2111-2119 which govern the contents of appellate briefs. Pursuant to the appellate rules, arguments not raised in the appellate brief are deemed waived. See e.g., Radakovich v. Radakovich, 846 A.2d 709, 111 (Pa. Super. 2004). By analogy, we conclude that pursuant to Rule L210, since plaintiffs failed to raise any possible procedural defects in either their brief or their argument, the issue is not properly before the court, and we will decide the issue of improper service/statute of limitations on the merits. It is not the duty or function of this court to become an advocate for the plaintiffs. Id. Moreover, a review of the case law indicates that Lamp v. Heyman good faith arguments are statute of limitations arguments properly raised as new matter, and the good faith argument is sufficient to require dismissal of plaintiffs’ claims against defendant Sakkal.


source: Caselaw Access Project

author: REIBMAN, J.,

license: Public Domain

text:
    Torchia v. Cedar Fair L.P.

      C.P. of Lehigh County,
    no. 2004-C-1573.

      Richard J. Orloski, for plaintiff.

      Joseph S. D ’Amico Jr., for defendant.
    December 7, 2004
   REIBMAN, J.,

Plaintiff alleges that he drove his automobile to defendant’s amusement park, paid $5 to park, and then returned only to find his vehicle stolen. He filed a two-count complaint, seeking to recover against defendant for “breach of [an] implied bailment” and for “negligence.” Defendant demurs, arguing that the disclaimer of liability on the parking pass it issued precludes recovery under a bailment theory, and that defendant owed plaintiff no duty such as would warrant recovery for negligence in these circumstances. Because it cannot be said with positive assurance that recovery is impossible under any theory on the facts alleged, the demurrer will be denied and, as explained below, plaintiff given the opportunity to file an amended complaint.

Preliminary objections in the nature of a demurrer will be sustained “only if, assuming the averments of the complaint to be true, the plaintiff has failed to assert a legally cognizable cause of action.” Kramer v. Dunn, 749 A.2d 984, 990 (Pa. Super. 2000). (internal quotation marks omitted) Moreover, “[a] demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory:” Sevin v. Kelshaw, 417 Pa. Super. 1, 7, 611 A.2d 1232, 1235 (1992). (emphasis added) Finally, a court is not constrained to the choice of either sustaining or overruling a preliminary objection but, instead, has discretion to permit or require an amended pleading. Motheral v. Burkhart, 400 Pa. Super. 408, 413 n.1, 583 A.2d 1180, 1183 n.1 (1990).

Plaintiff alleges that in June of2002, he drove his 1997 Honda Civic to defendant’s amusement park, which contains an area for, more or less, traditional rides and another consisting of a water park. (P1. compl. at ¶3.) Upon paying $5, he received a parking pass, entitling him to park in a designated area. (Id. at ¶5.) The parking pass, which plaintiff appended to his complaint, includes a notation that reads:

“THIS LICENSE LIMITS OUR LIABILITY— PLEASE READ IT. This parking pass is your contract. It licenses you to park one vehicle as directed and acceptance constitutes acknowledgement and agreement to these provisions. Domey Park & Wildwater Kingdom is not responsible for and assumes no liability for damage to or theft of your vehicle or any articles left in it. ONLY A LICENSE OF A PARKING SPACE IS GRANTED AND NO BAILMENT IS CREATED. NO DORNEY PARK & WILDWATER KINGDOM EMPLOYEE HAS ANY AUTHORITY TO VARY ANY OF THE ABOVE TERMS. MANAGEMENT RESERVES THE RIGHT TO MOVE A VEHICLE; VEHICLES WHICH ARE LEFT OVERNIGHT MAY BE TOWED AT THE OWNER’S EXPENSES.” (Id. at exhibit B.)

After parking his vehicle, plaintiff locked the car and activated its alarm. (Id. at ¶6.) Plaintiff then proceeded to the “Wildwater Kingdom” portion of the park. (Id. at ¶7.) About three hours later, plaintiff and his companion changed out of their bathing suits and returned to the parking lot to place their wet clothing in the car. (Id. at ¶8.) They again locked the vehicle and activated its alarm, and then went back to the ride-area of the park. (Id. at ¶9.) Their recreation completed, the pair then returned to the lot approximately two hours later, only to find the 1997 Civic missing, despite the presence of a security van, bicycle patrol, and video monitoring of the parking lot. (Id. at ¶¶10-12.)

The complaint avers that, according to an employee named “George,” another patron of the park had informed security personnel that the alarm of a car resembling plaintiff’s had sounded in response to an apparent attempt by three persons to break into the vehicle. (Id. at ¶13.) George, a member of the bicycle patrol, apparently pulled the vehicle over as the three attempted to drive off. (Id.) But after inquiring about the ownership of the vehicle, George evidently permitted the car to leave, despite the fact that no official proof of ownership had been produced. (Id. at ¶¶14-15.) Apparently, security personnel took no further action. (Id.)

Plaintiff’s vehicle was eventually recovered by the police in Newark, New Jersey. (Id. at ¶17.) The automobile, “a custom show car,” was declared a total loss by plaintiff’s insurance carrier whose payment failed to compensate fully for the loss. Plaintiff thus filed suit for the value of the car and its contents, seeking recovery against defendant in Count One for breach of an “implied bailment” and in Count Two for negligence. (Id. at ¶¶21-24, 25-27.) As noted, defendant demurs to the complaint, alleging no recovery may be had on the facts alleged.

A.

There exists, first, the question of whether plaintiff has stated a claim for recovery under an “implied bailment.” When a person arranges to park a vehicle in a commercially operated parking lot, one of three relevant legal relationships may arise. Dunegan v. Apico Inns of Green Tree Inc., 356 Pa. Super. 386, 390, 514 A.2d 912, 914 (1986). These include that of a lessor-lessee, abailor-bailee, and licensor-licensee. Id. at 390-92, 514 A.2d at 914-25. In the present case, the debate centers on whether a bailment or a license is at issue. As the Superior Court explained in Dunegan, in determining the existence of a bailment, vel non, “[t]he distinguishing factor is the extent to which the parking lot operator has exercised control over the vehicles which have been parked upon its lot.” Id. at 390, 514 A.2d at 914. If the lot operator “assume[s] control of the cars” — for instance, to move them about within its lot or garage — a bailment exists and the operator, as bailee, owes the patron-bailor a duty of care that includes the prevention of loss or damage to the vehicle. Id. If, however, the patron retains control over his car, a licensor-licensee relationship exists: the lot operator enters into a contract with the driver for the limited use of a parking space in exchange for a fee. Id. at 391, 514 A.2d at 915. That contract, like any other, depends for its terms upon the particular bargain the parties have entered, which may include terms implied from the surrounding circumstances. Sparrow v. Airport Parking Co. of America, 221 Pa. Super. 32, 38, 289 A.2d 87, 92 (1972).

B.

This brief recitation of the relevant legal principles reveals infirmities in the arguments of both parties in respect of the bailment-license debate. Plaintiff alleges he paid $5 to park in a designated lot equipped with video surveillance and a security patrol. Defendant concedes as much, but insists that the terms printed on the parking pass that attempted to disclaim liability and eschew a bailor-bailee relationship preclude recovery. The threshold inquiry, as Dunegan instructs, is whether plaintiff ceded control over his vehicle. And because plaintiff did not, no bailment arose. Hence, a licensor-licensee arrangement existed. That does not necessarily mean, however, that defendant owed plaintiff no duty that might allow recovery of damages on these facts.

As of yet, the terms of the contract governing the license are not clear. While the disclaimer, if valid, would certainly prevent recovery, it is not evident from the complaint how and when this information was communicated to plaintiff. Whether the disclaimer became part of the parties’ bargain depends on whether it was included in the offer that plaintiff, in fact, accepted. That situation would obtain if plaintiff approached the gate, was informed of the price of parking and the limitation of liability before proffering his $5 in acceptance of the offer. If, however, plaintiff approached the gate uninformed of the attempt to disclaim liability, paid his $5, and only thereafter was notified of the limitation, a different legal conclusion may well prevail. But that conclusion pivots on an examination of the attendant facts and circumstances not possible at this stage of the proceedings.

That said, it nevertheless would not be an “implied bailment” that would afford plaintiff relief. As noted, the sine qua non of bailment is the yielding of control. Plaintiff admits he retained control over his automobile throughout his visit to the amusement park. Instead, recovery under Count One on the facts alleged would result, if at all, as consequence of an implied term in the license agreement. That is, as a result of the surrounding circumstances — i.e., the “externals” exhibited by defendant (see Holmes, The Common Law at 307, 309 (Dover Ed. 1991)) — did plaintiff reasonably conclude, ex ante, that some measure of security would be provided in exchange for his $5? For instance, it is not clear from the complaint as presently styled when exactly plaintiff became aware that video surveillance and a security patrol were provided for the parking area. Plaintiff will thus be afforded the opportunity to re-plead his claim in Count One under a breach-of-contract theory claiming, if the facts support such, that defendant breached an implied term of the parties’ bargain. Alternatively, if nothing done by defendant prior to accepting plaintiff’s $5 would have reasonably led one in plaintiff’s position to conclude that security was part of the deal, recovery may not be had. And it should go without saying that the lenity necessary to adjudicating preliminary objections in the nature of demurrers must not be misconstrued as an invitation for confabulation.

A.

Plaintiff, in Count Two of his complaint, also seeks recovery for negligence. He avers that by “allowing] plaintiff’s vehicle to be ransacked and damaged while in view of its security people and video camera,” defendant breached the duty of care owed to him. He alleges that defendant should have taken additional steps to stop the theft, identify the operator, or call the local police. Defendant objects, arguing that as a mere licensor it had no duty to guard against theft by third persons.

One of the most peculiar and, to many, dissatisfying aspects of the common law is the general principle that one owes no duty to come to the aid of another to alleviate or otherwise forfend harms perpetrated by third persons. E.g., Zayc v. John Hancock Mutual Life Insurance Co. of Boston, 338 Pa. 426, 433, 13 A.2d 34, 38 (1940). Indeed, it remains accepted as hornbook law that courts will not “impose on a stranger the moral obligation of common humanity to go to the aid of another human being who is in danger, even if the other is in danger of losing his life.” Prosser and Keeton on Torts, at ch. 9, §56 (Fifth ed. 1984). There exist, however, important exceptions to the general rule. Those circumstances arise when “the defendant stands in some special relationship with either the person whose conduct needs to be controlled or ... with the intended victim of the conduct, which gives the intended victim a right to protection.” Rabutino v. Freedom State Realty Co. Inc., 809 A.2d 933, 938 (Pa. Super. 2002). (internal quotation marks omitted)

The duty owed by the proprietor of a business to a business invitee has been recognized in this Commonwealth as one such exception. Id. Embracing the Restatement (Second) of Torts, §344, the Superior Court has held:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

“(a) discover that such acts are being done or are likely to be done, or

“(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise protect them against it....

“Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows, or has reason to know, that the acts of the third person are occurring or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual ....” Rabutino, supra, 809 A.2d at 939 (quoting Restatement (Second) of Torts §§344, 344 comment f).

Although it has not been expressly adopted by Pennsylvania’s appellate courts, the Restatement (Second) of Torts §302B echoes that principle, extending it explicitly to criminal conduct of third parties. It provides: “An act or omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.” Id. While at odds with the general common-law reluctance to impose liability for non- as opposed to misfeasance, the comment explains, “There are, however, situations in which the actor as a reasonable man is required to anticipate and guard against the intentional or even criminal misconduct of others. In general, these situations arise where the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct.” Id. at cmt. e. Examples wherein such a special responsibility exists include situations “[wjhere the actor stands in such relation to the other that he is under a duty to protect him against such misconduct. Among such relations are those of carrier and passenger, innkeeper and guest, employer and employee, possessor of land and invitee, and bailee and bailor.” Id.

Considering those principles in the context of the present case, two questions immediately arise. First, does the classification of plaintiff as a licensee, reached in the previous discussion, preclude consideration of plaintiff as a business invitee for purposes of sections 302B and 344 of the Restatement? Cf. Rossino v. Kovacs, 553 Pa. 168, 172-73, 718 A.2d 755, 757 (1998) (observing under Restatement (Second) of Torts §342, duty owed to licensee concerns only physical harm caused by condition on the land). Second, do the rules as articulated in the Restatement contemplate damages to chattels as well as bodily injury?

Turning to the first query, the higher courts have generally defined the duty owing to a visitor upon land according to his status, be it as trespasser, licensee, or invitee. Cresswell v. End, 831 A.2d 673, 675 (Pa. Super. 2003). The duty owed to a trespasser is, in Pennsylvania, very limited: the landowner must only refrain from wanton or willful negligence or misconduct. Rossino, supra, 533 Pa. at 172, 718 A.2d at 756. A landowner’s duty respecting a licensee concerns only physical harm caused by “a condition on the land,” as opposed to harm occasioned by other persons. Id. at 172-73, 718 A.2d at 757. Thus, only the invitee enjoys the right as set forth in Rabutino, supra, to protections vis-a-vis third parties.

“An invitee is either a public invitee or a business visitor.” Cresswell, supra, 676 A.2d at 675 (quoting Restatement (Second) of Torts §332). In distinguishing between a visitor’s status as an invitee versus that of licensee, the focus trains on the distinction between invitation and “mere permission.” Id. at 676 (quoting Restatement (Second) of Torts §332 comment b). As the Superior Court more fully elaborated: “An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they so desire.” Id. (emphasis in original) A business visitor is, in turn, defined as “a person who is invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Id. (quoting Restatement (Second) Torts §332 comment b).

With that as the touchstone, it readily appears that in the special circumstances of this case — involving, as it does, an amusement park operator who not so coincidentally operated a parking lot for the convenience of its paying customers — plaintiff’s status on defendant’s land consisted of an invitee. As is reasonably inferable from the complaint, plaintiff’s arrival, albeit in his automobile, at the parking lot gates and his subsequent presence on defendant’s land both within the park and on the adjacent “designated parking area,” was more than tolerated by defendant as an incident of plaintiff’s patronage of the park. And the fact that the particular arrangement as concerned the parking of the automobile would, without more, remain one of licensor-licensee, does not define for all purposes defendant’s broader relationship with paintiff with respect to the latter’s status on the land.

That the contract concerning the parking of an automobile might constitute one of licensor-licensee while the legal status of a plaintiff’s broader presence on a defendant’s grounds — which subsume both an amusement area as well as a parking lot — amounts to that of a business invitee should give no pause. The apparent inconsistency can be explained by realizing that the traditional licensor-licensee relationship under a contract confined to parking concerns only permission to enter the land with an automobile. But in the broader context of a parking lot owned by the proprietor of an amusement park — who operated both as part of a broader, unified business — the visitor’s individual presence is surely desired on both. The customer utilizes the lot as a necessaiy and, from the defendant’s perspective, certainly desirable component of patronizing the park. It is not unreasonable to infer that persons in plaintiff’s position are more than tolerated; they have been sought out and, through advertising and other inducements, their presence enticed. And once there, the duty owing to them as invitees may not be limited by the happenstance that they arrived by automobile. From the time of their arrival as patrons of the park — for, if, as is inferable from the complaint, this parking lot served no other purpose or population — the protections owing to business invitees attached.

For that reason, Dunegan, supra, 356 Pa. Super. at 393-94, 514 A.2d at 916, although otherwise on point in respect of the licensor-licensee relationship, is not controlling on this question. In that case, the court addressed, on summary judgment, only the express and implied contractual liability of an hotelier qua parking-space provider. Id. at 394, 514 A.2d at 916. Thus, it left unaddressed the question confronted here, which concerns liability imposed as a matter of social duty as a consequence of the special relationship between a proprietor and his business visitor. The fact that a plaintiff suffers harm on the parking lot as opposed to the establishment proper is not determinative. See e.g., Murphy v. Penn Fruit Co., 274 Pa. Super. 427, 431-34, 418 A.2d 480, 481-84 (1980) (finding section 344 applicable to plaintiff injured by third person on defendant’s parking lot). The question of whether recovery is possible on the facts alleged in this case thus turns to the extent those protections extend to a plaintiff’s chattels as well as his person.

B.

In view of the allegation that defendant witnessed a theft in progress, the conclusion that the duty owed to a business invitee extends to his belongings as well as his body finds support in considerations of lexicography, precedent, and policy. As seen in the passage quoted above, the relevant section of the Restatement, cited with approval by the Commonwealth’s higher courts, speaks of “physical harm” caused by third persons or animals. Rabutino, 809 A.2d at 939 (quoting Restatement (Second) of Torts §344). Physical harm is commonly understood in the law to mean “[a]ny physical impairment of land, chattels, or the human body.” Black’s Law Dictionary, at 722 (Seventh ed. 1999) (emphasis added); see also, Sharon Steel Corp. v. DeLeval Turbine Inc., 4 D.&C.3d 325 (Mercer Cty. 1977) (“physical harm” as used in Restatement (Second) of Torts §324A includes physical impairment of human body, land, or chattels but not consequential and purely economic loss). Under that definition, then, the business proprietor’s obligation to “warn” or “otherwise protect” its visitors, Rabutino at 939 (quoting Restatement (Second) of Torts §344), encompasses damages to their property as well as their persons.

Although the reported case law in Pennsylvania appears silent on this precise point, other jurisdictions have applied the principle articulated in section 344 to property as well as bodily injury. For instance, construing South Dakota law, the federal district court held that breach of the duty owed to business invitees rendered the operator of an airport liable for failure to warn of a dangerous condition that resulted in the loss of an airplane. Safeco Insurance Co. of Am. v. City of Watertown S.D., 529 F. Supp. 1220, 1226-29 (D.S.D. 1981); see also, Lacelle v. Hills Dept. Store, 535 N.Y.S.2d 1014, 1017 (N.Y.C. Civ. Ct. 1988) (holding merchant liable under Restatement (Second) of Torts §344 for purse stolen from shopping cart).

Policy considerations also militate in favor of recognizing a proprietor’s liability for physical harm to a business invitee’s chattels, whether under section 344 or section 302B. As explained by our Supreme Court in Gardner v. Consolidated Rail Corp., SEPTA, infra,

“In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection from the harm suffered.... To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times. The late Dean Prosser expressed this view as follows:

“ ‘These are shifting sands, and no fit foundation. There is a duty if the court says there is a duly; the law, like the constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.’ ” 524 Pa. 445, 454-55, 573 A.2d 1016, 1020 (1990). (internal citations and quotation marks omitted)

And as elaborated further by the Superior Court, relevant factors in considering the existence of duty in any specific set of circumstances include “(1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; (5) the overall public interest in the proposed solution.” F.D.P. v. Ferrara, 804 A.2d 1221, 1231 (Pa. Super. 2002). Should a duty be established, the level of care necessary to discharge that duty will depend on the “realities of the situation ” confronted. Clewell v. Pummer, 384 Pa. 515, 523, 121 A.2d 459, 464 (1956). (emphasis in original)

Without question, in this case, defendant as a business-operator entered into a special relationship with his invitee, plaintiff. Surely, the law should not countenance a situation in which a business owner may invite the public onto his property for his pecuniary benefit and then, upon learning that his customer’s goods are being pilfered, sit idly by, absent any duty to mitigate the harm. This conclusion appears all the more compelled when, as alleged here, the particular risk of harm to which plaintiff has been exposed is at least to some degree enhanced by the proprietor’s activities. It appears self-evident that any common thief would realize the increase in fodder for his untoward activities when the potential objects of his crimes are collected in greater concentration. A parking lot full of automobiles whose owners will be predictably detained in amusement activity of some duration thus provides a relatively ripe target for car thieves. Thus, in the circumstances here pled, it makes eminent sense to recognize that the proprietor of a unified operation that entails parking and an amusement park assumes a duty consistent with that set forth in the Restatement (Second) of Torts §§302B and 344 to guard against physical harm to his invitees. And, while a line might be drawn at the boundaries of the visitor’s body in the name of expediency, logic and sound considerations of policy demand that the duty should extend to foreseeable or known harm occurring to the visitors’ property, as well. Here, then, a car as chattel of the customer does not differ significantly from, say, a purse left temporarily unattended in a shopping cart. See Lacelle, supra, 535 N.Y.S.2d at 1017 (holding proprietor liable for customer’s purse under Restatement (Second) of Torts §344).

The argument might be made that recognition of such an obligation on business owners, such as the defendant in this case, who are faced with actual knowledge will lead to a disincentive for proprietors to engage in prophylactic security measures out of fear that actual knowledge of such activities might result in liability upon the failure to successfully thwart the evil. In other words, it might be posited that a proprietor, aware that actual knowledge of an unfolding harm to one of his customers or their property will result in a duty to act, may choose instead to remain oblivious. Thus, he will desist from offering gratuitous security measures that he otherwise may have employed, such as surveillance cameras or security patrols. Upon scrutiny, however, such an argument proves unpersuasive.

As noted, the law as formulated in the Restatement imposes a duty in the case of actual or foreseeable knowledge. Accordingly, the proprietor who chooses to do nothing in the hopes of remaining ignorant will nonetheless acquire the requisite scienter once such crimes occur on his property. In the meantime, his good will will have been reduced commensurate with the circulation of news among the buying public that his establishment is a dangerous place to visit. By contrast, the owner who takes the initiative to prevent such occurrences will be more likely to become aware of events presently unfolding, but presumably will also benefit from the deterrent effect his security measures have provided in preventing physical harm to his patrons and their property. In the final analysis, then, the trade-off appears to reduce itself into a comparison between, on the one hand, the few free passes the passive proprietor will receive by doing nothing and remaining ignorant until after his customers have been victimized — and the concomitant loss of good will which results — and, on the other, the gain in good will the assertive merchant will realize by deterring harm in the first instance — at the price of incurring a duty to exercise reasonable care in those first few situations that his security measures bring to his attention. Because the same duty ultimately devolves on both classes of merchants, and the price paid by the conscientious proprietor results in additional benefits to the public not otherwise realized, any perverse incentives appear illusory. Accordingly, policy considerations weigh heavily in favor of recognizing a duty upon business owners with respect to their invitees in circumstances, such as presented here, where by virtue of security measures a proprietor has reason to know his customer’s property is in immediate peril.

C.

Finally, there remains yet a third theoiy upon which defendant owed a duty to plaintiff on the facts alleged. The courts of this Commonwealth have undoubtedly established that, although one might be under no duty to act, once such a task is assumed, it carries with it the obligation that it be performed non-negligently. E.g., Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1988) (adopting Restatement (Second) of Torts §323).

Here, as noted, plaintiff alleges that defendant’s security personnel indeed questioned the thieves but erroneously let them exit the parking lot with his vehicle. To what extent there was any dereliction of duty in these circumstances is not clear at this incipient stage of the proceedings. What appears certain, however, is that, upon assuming the initiative to intervene in the unfolding theft, defendant had the responsibility to act in a reasonable fashion. If, for no other reason, that remains true because, like the situation surrounding the attempted but negligent rescue, the intervention of the actor may well lead others to refrain from acting in the belief that the situation is under control and, therefore, the assistance of others is no longer necessary. It requires little extrapolation to conclude that similar conditions might exist in the context of an attempted automobile theft, as alleged here. Certainly, any otherwise altruistic passersby would likely, upon seeing or, indeed, notifying security personnel of ostensible thieves, assume that the situation was now well in hand. Thus, they may well conclude that they need not notify the police or otherwise intervene. Because plaintiff, in fact, alleges that defendant’s failure to phone the local police constituted one facet of the breach of duty, he must be considered to have stated a claim for negligence in the undertaking of a duty, even if it was one only gratuitously assumed.

D.

In view of all of this, whether plaintiff may recover under a theory of negligence remains unclear. As noted, once a duty arises, the specific conduct necessary to fulfill that obligation depends on the “realities of the situation ” as confronted by a defendant. Clewell, supra, 384 Pa. at 523, 121 A.2d at 464. (emphasis in original) What can be said, however, is that his claim in Count Two cannot be dismissed on the grounds that defendant owed him no duty based on the facts alleged in the complaint. It thus awaits further development of the underlying events to ascertain whether defendant breached the duty owed to plaintiff. First, what defendant through its agents actually knew or, in consideration of the circumstances, should have known proves pivotal in defining the precise contours of that duty. Second, what precisely defendant did in response will determine whether it exhibited the requisite level of care. Thus, defendant’s contention, for instance, that it had no duty — or even authority — to detain the thieves may ultimately prove correct. Suffice it to say for present purposes, however, that if the facts prove to be as alleged by plaintiff in his complaint, it may also be that defendant’s actions fell short of the duty owed to plaintiff and thereby proximately caused his damages. The preliminary objection to Count Two in the nature of a demurrer will thus be overruled.

In light of the above, defendant’s demurrer to Count One of plaintiff’s complaint will be denied. Defendant’s objection will, however, be sustained as a demand for a more specific pleading. Accordingly, plaintiff may file an amended complaint that sets forth more specific facts which, if they exist, would warrant recovery under a breach-of-contract theory. As to Count Two, defendant’s demurrer will be denied; whether a claim in negligence ultimately will lie rests on a determination of facts inap-posite to judgment at this preliminaiy phase of the proceedings.

ORDER

And now, December 7, 2004, upon consideration of defendant’s preliminary objections, filed on July 9,2004, and plaintiff’s response thereto, filed on July 27, 2004, and for the reasons set forth in the accompanying opinion, it is ordered that said preliminary objections are sustained in part and overruled in part; it is further ordered that, consistent with said opinion, plaintiff shall have 20 days to file an amended complaint.

      . Neither party argues that defendant leased a parking space to plaintiff.


author: SHEERER, Member,

text:
    Office of Disciplinary Counsel v. Neil
    Disciplinary Board Docket no. 215 D.B. 2003.
    November 23, 2004
   SHEERER, Member,

On September 10,2003, petitioner, Office of Disciplinary Counsel (ODC), filed with the Pennsylvania Supreme Court a petition for adjudication of contempt, requesting that the Supreme Court issue a rule upon respondent, David MacGregor Neil, to show cause why he should not be held in contempt for willful violation of the Supreme Court’s order of March 25, 2003, and why the matter should not be referred to the Disciplinary Board for a hearing to recommend an appropriate sanction. The order of March 25, 2003, transferred respondent to inactive status pursuant to Rule 111(b), Pa. R.C.L.E. for failure to complete the annual Continuing Legal Education requirements. A rule to show cause was . issued by the Supreme Court on November 18,2003. Respondent did not file a response to the rule to show cause. Petitioner filed a petition to make the rule absolute on December 12,2003. By order of December 29,2003, the Supreme Court granted a petition for adjudication of contempt and held respondent in contempt for failure to comply with the order of March 25,2003. The court referred the matter to the Disciplinary Board for a hearing to recommend the appropriate sanction.

In accordance with the order of the Supreme Court, a three-member panel of the Disciplinary Board was constituted. On July 12,2004, Disciplinary Board Members Martin W. Sheerer, Esquire, Donald E. Wright Jr., Esquire, and William A. Pietragallo, Esquire, conducted a hearing solely on the issue of the appropriate sanction to be imposed for the respondent’s contempt of the Supreme Court. Respondent was personally served on June 25, 2004, with notice of the hearing. Respondent was aware of the date of the hearing. Respondent discussed with Attorney Mark Weitzman of the Office of Disciplinary Counsel that he was not planning to appear at the hearing. Respondent left a message on Attorney Weitzman’s answering machine at the District IV office on Friday, July 9,2004, stating his intent to not appear. Respondent stated that he had “no excuse” for his actions and admitted that he “screwed up.” This message was played at the hearing for the panel to hear. Respondent did not appear at the hearing on July 12, 2004.

Respondent was admitted to the practice of law in 1982. He was transferred to inactive status pursuant to Rule 111(b), Pa.R.C.L.E. by order of the Supreme Court dated March 25,2003, effective April 24,2003, for failure to comply with the annual Continuing Legal Education requirements. By letter of March 25, 2003, sent to respondent by Elaine M. Bixler, executive director and secretary of the Disciplinary Board, respondent was informed of his transfer to inactive status and his obligation to comply with the rules regarding attorneys on inactive status. Respondent was further informed that in order to resume active status he was required to request reinstatement. The return receipt card reflected that respondent signed the card and received Ms. Bixler’s letter. Respondent’s transfer to inactive status was published on May 9, 2003, in the Erie County Legal Journal and on April 30, 2003, in the Erie Times-News.

The record demonstrates that, although respondent had knowledge that he had been transferred to inactive status, he continued to represent three clients in ongoing legal matters, accepted a retainer of $400 from a new client, and represented three new clients in legal matters. In total, respondent continued to practice law in six matters. The petition for adjudication of contempt sets forth in detail the respondent’s practice of law subsequent to April 24,2003, the effective date of his transfer to inactive status. Respondent further failed to abide by Rule 217, Pa.R.D.E., requiring that he notify all pertinent parties of his transfer to inactive status and withdraw from pending court matters. By these acts and omissions, respondent has willfully disregarded the Supreme Court’s order of March 25, 2003.

The circumstances of this matter are aggravated by respondent’s failure to appear for the hearing and his disciplinary history of two informal admonitions. Respondent received informal admonitions in May 1997 and October 2002 for neglect of client matters.

Petitioner made a recommendation of a one year and one day suspension.

After careful consideration of the facts of this matter, the board panel is persuaded that a one year and one day suspension is an appropriate sanction to address the misconduct in this matter. Respondent violated a Supreme Court order, which prohibited him from practicing law until he was in compliance with the CLE credits requirements and was reinstated by the court. Respondent had knowledge of the order both by certified letter and publication. Respondent chose to not appear and defend himself, instead informing petitioner that “what will happen will happen.”

The appropriate sanction is a suspension of one year and one day.

ORDER

And now, December 22,2004, upon consideration of opinion and recommendation of the three-member panel of the Disciplinary Board dated November 23, 2004, it is hereby ordered that David MacGregor Neil is suspended from the practice of law in the Commonwealth of Pennsylvania for a period of one year and one day, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.


author: O’CONNOR,Member,

text:
    Office of Disciplinary Counsel v. Burd

      Disciplinary Board docket no. 132 D.B. 2003.
    November 2, 2004
   O’CONNOR,Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On September 11,2003, Office of Disciplinary Counsel filed a petition for discipline against respondent, Amy B. Burd. The petition charged respondent with violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement in three separate matters. Respondent filed an answer to petition on January 9, 2004. In this filing she admitted all of the averments of fact, as well as the averred rule violations.

A disciplinary hearing was held on January 9, 2004, before Hearing Committee 3.01 comprised of Chair Lawrence V. Young, Esquire, and Members Gary M. Lightman, Esquire, and John Henry Reed, Esquire. Respondent appeared pro se. The petition for discipline and answer thereto were entered into the record.

The Hearing Committee filed a report on June 24, 2004, finding that respondent violated the rules as charged in the petition for discipline, and recommending that respondent be suspended for one year and one day.

This matter was adjudicated by the Disciplinary Board at the meeting of September 27, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania, and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent was bom in 1959 and was admitted to practice law in Pennsylvania in 1984. Respondent maintains her office at 296 Kolln Lane, Bellefonte PA 16823. She is accordingly subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) Respondent has a prior record of discipline consisting of an informal admonition administered in 2001 for failure to take action in a court-appointed PCRA matter.

Judge Kistler Matter

(4) Respondent was court-appointed to represent Richard M. Walker, Jr. in connection with criminal charges. In March 2001, Mr. Walker was convicted in Centre County of criminal charges involving the sexual assault of various minors. He was sentenced on April 11,2001, to three to six years incarceration.

(5) On May 9, 2001, respondent filed a notice of appeal to the Superior Court on behalf of Mr. Walker.

(6) By order dated May 17,2001, the trial judge, Thomas King Kistler, directed respondent to file a statement of matters complained of on appeal pursuant to the Pennsylvania Rules of Appellate Procedure.

(7) By order filed June 5, 2001, Judge Kistler noted respondent’s failure to file this statement.

(8) Respondent failed to complete the Superior Court docketing statement form provided all appellants by the Superior Court prothonotaiy’s office.

(9) Respondent failed to file appellant’s brief.

(10) By order dated December 28, 2001, this appeal was dismissed due to respondent’s failure to file a brief. This order also directed respondent to file with the Superior Court, within 10 days, a “certification that the client has been notified of this dismissal.”

(11)Respondent failed to file such a certification.

(12) On January 24, 2002, new counsel entered his appearance on behalf of Mr. Walker and respondent’s representation ceased.

McIntyre Matter

(13) Ezzie Charles McIntyre was sentenced in Cen-tre County on April 14, 1999, in connection with certain criminal charges. Mr. McIntyre filed a petition for relief under the Post Conviction Relief Act (PCRA).

(14) By order filed March 30, 2000, respondent was appointed to represent Mr. McIntyre with his PCRA, and was granted 30 days to file an amended PCRA petition on her client’s behalf.

(15) Respondent never filed an amended petition, nor did she take any other action through April 2001.

(16) By letter dated April 26, 2001, respondent wrote to Mr. McIntyre and requested his input as to why he believed he was entitled to relief. Mr. McIntyre promptly answered respondent’s inquiry.

(17) There was no further communication between respondent and her client, despite several attempts on Mr. McIntyre’s part to communicate with respondent by telephone and/or letter during the period April 2001 through February 2002.

(18) In February 2002, Mr. McIntyre wrote to the Centre County Court Administrator’s office complaining about respondent’s lack of communication and activity, which letter was forwarded to the presiding judge.

(19) In February, March and May 2002, Mr. McIntyre wrote to respondent inquiring about the status of his case. He received no response from respondent.

(20) In June 2002, Mr. McIntyre received a letter indicating that respondent would be filing a brief in his case by June 17, 2002.

(21) Respondent never filed a brief or undertook any other action on behalf of her client.

Judge Saxton Matter

(22) By order of the Supreme Court of Pennsylvania dated November 1, 2002, effective December 1, 2002, respondent was transferred to inactive status for failure to pay her annual assessment.

(23) Despite her inactive status, which prohibited her from practicing law, on December 2, 2002, respondent represented the Commonwealth as an assistant district attorney in a jury trial before the Clinton County Court of Common Pleas in the criminal case of Commonwealth v. Gerald Francis Smith.

(24) Respondent failed to disclose her inactive status to the court or the district attorney.

(25) Several days after the trial, respondent was confronted with the fact of her inactive status by President Judge Saxton of the Clinton County Court of Common Pleas.

(26) Respondent was subsequently asked to resign her position with the district attorney’s office in Clinton County.

(27) Respondent explained she misunderstood the notice that transferred her to inactive status and believed she had 30 days to make her payment.

(28) After her conversation with Judge Saxton, respondent sent in her assessment fee that same day.

(29) By application for resumption of active status for fiscal year 2002-2003, dated December 6,2002, respondent applied for and was granted a return to active status, effective December 9, 2002.

(30) Respondent is presently employed by a State College settlement agency, Fidelity Closing Services. She conducts settlements and reviews documents prepared in connection with settlements other company representatives handle.

III. CONCLUSIONS OF LAW

By her conduct as set forth above, respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:

(1) R.P.C. 1.1 — A lawyer shall provide competent representation to a client.

(2) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(3) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(4) R.P.C. 1.4(b) — A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.

(5) R.P.C. 5.5(b) — A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

(6) R.P.C. 8.4(b) — It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.

(7) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(8) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

(9) Pa.R.D.E. 217(b)(c)(d)

(b) — A formerly admitted attorney shall promptly notify, or cause to be notified, by registered or certified mail, all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party, of the transfer to inactive status and consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the transfer to inactive status.

(c) — A formerly admitted attorney shall promptly notify, or cause to be notified, of the transfer to inactive status, all persons with whom the formerly admitted attorney may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that he or she continues as an attorney in good standing.

(d) — Orders imposing transfer to inactive status shall be effective 30 days after entiy. The formerly admitted attorney shall not accept any new retainer or engage as attorney for another in any new case. However, during the period prior to the effective date, the attorney may wind up and complete all matters which were pending on the entry date.

IV. DISCUSSION

This matter is before the board on a petition for discipline charging respondent with violation of the professional rules arising from her neglect of an appellate matter and a PCRA petition, and her practice of law while on inactive status. Respondent filed an answer admitting all of the facts and conclusions of law as set forth in the petition for discipline. The sole issue left for the board to consider is the degree of discipline warranted by respondent’s misconduct.

The appropriateness of a disciplinary sanction is based on the nature and gravity of the misconduct and the aggravating and mitigating factors present. In re Anonymous no. 85 D.B. 97, 44 D.&C.4th 299 (1999). The two neglect matters of Kistler and McIntyre are similar in nature. They involve respondent’s failure to file briefs, failure to communicate and failure to essentially take any action on the matter at hand. This misconduct mirrors respondent’s prior misconduct that resulted in the imposition of an informal admonition. In that matter, which occurred in 2001, respondent was court-appointed to assist her client to pursue a PCRA petition. From the time of her court appointment in 1999 until May 2001, respondent failed to take virtually any action on the matter.

In the Saxton matter, respondent committed a short-lived act of the unauthorized practice of law by representing the Commonwealth in a criminal trial while she was on inactive status. The trial took place one day after her effective transfer to inactive status. Shortly after she was confronted by the president judge, she took appropriate steps to transfer back to active status. Respondent explained that she did not realize she was on inactive status while she represented the Commonwealth at trial. She misunderstood the notice of her transfer to inactive status, believing instead that she had 30 days to pay her fee. Regardless of respondent’s explanation, it was her affirmative obligation to maintain an active attorney license if she intended to practice law. Her inattention to the details of official documents is inexcusable.

Given the two instances of client neglect, the history of discipline, and respondent’s brief incident of unauthorized practice of law, the board is persuaded that the interests of the public can best be served by a suspension of one year and one day. See In re Anonymous No. 131 D.B. 1999, no. 660 disciplinary docket no. 3 (Pa. March 23, 2001) and In re Anonymous 118 D.B. 2000, no. 743 disciplinary docket no. 3 (Pa. June 13,2002). By requiring that respondent submit herself to a reinstatement proceeding, the public can best be assured that respondent has addressed whatever professional and organizational difficulties may underlie this misconduct.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Amy B. Burd, be suspended from the practice of law for a period of one year and one day.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Nordenberg did not participate in the September 27,2004 adjudication.

ORDER

And now, January 21,2005, upon consideration ofthe report and recommendations of the Disciplinary Board dated November 2, 2004, it is hereby ordered that Amy S. Burd be and she is suspended from the bar of this Commonwealth for a period of one year and one day, and she shall comply with all the provisions of Rule 217 Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: EMERY, J,

text:
    Commonwealth v. Bricker

      C.P. of Washington County,
    no. 2003-01259.

      Joseph Schwerha, for plaintiff.

      David DiCarlo, for defendant.
    October 1, 2004
   EMERY, J,

This case comes before the court on a motion to suppress filed on behalf of the defendant, James Bricker. Mr. Bricker is charged with the following criminal offenses: 90 counts of invasion of privacy, 18 Pa.C.S. §7507.1, 49 counts of sexual abuse of children, 18 Pa.C.S. §6312(b), and 49 counts of sexual abuse of children, 18 Pa.C.S. §6312(d). The defendant seeks suppression of all of the evidence seized by the Pennsylvania State Police on May 28, 2003, pursuant to a search warrant. A suppression hearing was held, and both the Commonwealth and the defendant submitted briefs in support of their respective positions.

The defendant argues that the search warrant and subsequent seizure was in violation of the Pennsylvania Constitution for two reasons. First, the defendant argues that the search warrant was invalid on its face in that the requested areas to be searched were overly broad and lacked particularity, and secondly, the defendant argues that some of the items seized were not contained in the search warrant and were not related to criminal activity and therefore exceeded the scope of the search warrant. The defendant seeks suppression of all of the items seized or, in the alternative, those items delineated below. The Commonwealth disagreed, arguing that the search warrant was specific and issued pursuant to probable cause and validly issued and executed.

When a motion to suppress has been filed, the burden is on the Commonwealth to prove by a preponderance of the evidence that the challenged evidence is admissible. Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992). Therefore, that is the standard upon which this court will proceed with its determination of the defendant’s motion to suppress. The Pennsylvania Constitution, Article I, Section 8, provides that all persons shall be secure from unreasonable searches and seizures and that no warrant to search any place or person shall be issued without probable cause. In order to safeguard our citizens’ privacy, the fundamental requirement is that a warrant shall only be issued upon probable cause. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). The United States Constitution also provides those same rights. The Pennsylvania Supreme Court has long held that the Pennsylvania Constitution affords greater protection than the Fourth Amendment of the United States Constitution despite the almost identical language of the two sections. Id.

A search warrant must specifically describe the property or things to be seized, the search warrant cannot be used as a general investigatory tool. Commonwealth v. Bagley, 408 Pa. Super. 188, 596 A.2d 811 (1991). Similarly, a request in the search warrant may not be over broad in that an over broad warrant authorizes a general search and seizure, clearly prohibited by both the Pennsylvania and United States constitutions.

To determine validity, only the four corners of the search warrant may be examined. The search warrant contains a two-page application for search warrant and authorization (pp. 1,6) and a supporting affidavit of probable cause that was attached thereto (pp. 2-5). The court must first examine the application as to the defendant’s argument that the search warrant application violated the particularity requirement. To do so, an examination of the affidavit of probable cause must also be considered. The affidavit sets forth evidence that two minor females, K.M.FL and J.L.D. viewed a video on the computer of the defendant on May 27,2003, which depicted K.M.H. getting undressed in her basement bedroom and then captured her naked and then climbing into her bed. K.M.H. indicated that she was alarmed by this video, turned off the computer and then told her mother, K.B., the defendant’s girlfriend. K.B. told the police that the defendant was in the computer business and possessed five networked computers, being three computers in his office and two laptop/notebook computers, and that all of the computers were networked via satellite. Trooper Erdely averred, based upon his computer expertise, that computers which are networked can be viewed from any one of the actual computers and that the storage of a particular file could be on any of a network’s computers and that, therefore, means all of the computers would have to be searched in looking for a particular file. The items sought to be searched were computer hardware, computer software, passwords related to the computer hardware or software and any documentation on how to use the computer hardware or software. Clearly the facts enabled the issuing authority to find that probable cause existed that evidence would be found on the items to be searched. Those facts were supported by direct information from the two minors, as well as K.B., and were not based only on suspicions. Further, K.B. personally observed the defendant viewing pornography on his computer and that the pornography involved children under the age of 18, in that K.B. personally witnessed those pictures and the objects of the pornography seemed to be approximately 13 years of age. Those facts, taken together, provide probable cause.

The defendant argues that the over broad nature of the search warrant request and the lack of particularity render the search warrant invalid. The court finds that the search warrant clearly set forth the items to be seized with particularity. The hardware, software and other requests were specific and cogent. The more difficult examination is whether the request was over broad. The search warrant is broad, the question is whether it is over broad. The court finds that the nature of the transmittal of data electronically requires a broad approach. That is, the electronic image that is the criminal activity can be maintained or stored in different places and in different forms. The transmittal of that image again can be done through different locales and in different forms. The broad nature of the request is simply necessary and, therefore, is not excessive or violative of the defendant’s rights. While the items searched for and seized may have contained much information and items not related to the criminal activity, it is impossible to separate the two. The prosecution is not seeking to use any information not related to the criminal activity referred to in the search warrant application. The court finds that the search warrant was not over broad, nor did it lack particularity.

The defendant also argues that some of the items seized were not contained in the search warrant and therefore, should be suppressed. The defendant argues that the following items fall into that category: one Dell laptop, a Systemax Tiger server, one Soyo PC Workstation, three CDs from the defendant’s briefcase, one Micron laptop, one black leather laptop briefcase containing radios, cables and an interface box, 12 CDs from the basement office including a Windows 2000 operating system CD, one pinhole camera, one paper with user names and passwords. The court denies the motion to suppress on that ground. The court finds that all of those items are indeed contained in the search warrant. First, the laptops and PC Workstation are clearly computer hardware. The CDs are contained in the software request. The pinhole camera falls under the hardware request, which includes equipment that would transmit electronic images to the computer, which is what the camera does. The paper with user names and passwords is set forth in the request as passwords and data security devices.

Courts have held that, while items to be seized shall be set forth as precisely as can be, an exact description may be impossible. Commonwealth v. Barba, 314 Pa. Super. 210, 460 A.2d 1103 (1983). Therefore, a generic description may suffice. Id. In this case, only items related to pornography and the privacy of the two minors were seized. Of course, the items seized had other information on them or other uses for them. But the police could not separate those legitimate items from those not legitimate due to the nature of computer operations. The fact that items seized may contain other non-criminal activity files does not render the seizure invalid. Rather, the police simply cannot use the non-criminal activity items. None of the items delineated by the defendant are non-criminal related activities.

In conclusion, the court finds that the search warrant was supported by probable cause and was described with the requisite particularity. Therefore, the motion to suppress is hereby denied.

ORDER

And now, October 1, 2004, the motion to suppress is denied.

      . The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. IV Amendment, United States Constitution.