author: BOCCABELLA, J.,

text:
    Commonwealth v. Kaylor

      C.P. of Berks County,
    No. 2474-2014

      Amy Rothermel, for Commonwealth.

      Andrea E. Mertz, for defendant.
    Jan. 7, 2015-
   BOCCABELLA, J.,

FINDINGS OF FACT

1. On February 14th, 2014 at approximately 2:15 P.M. officer John G. Phillips was patrolling in an un-marked Ford Expedition at a McDonald’s parking lot “checking” on an occupied vehicle located at 810 Hill Ave., PA. Berks County. The vehicle in question was a blue 2004 Audi A4. As officer Phillips past the vehicle, he noticed the car running and the occupant discarded a cigar onto the parking lot surface.

2. Officer Phillips entered the vehicle registration into his computer and the results were “clean”. The results reported that the owner was from Elizabethtown Lancaster County. Officer Phillips decided to approach the passenger side of the vehicle. He observed a male occupant sitting in the driver’s seat eating McDonald’s food.

3. Officer Phillips asked the defendant if everything is ok. The defendant replied ‘Yes’. Officer Phillips proceeded to ask the defendant, what are you doing. The defendant replied ‘waiting for a friend’. Officer Phillips walked to the driver side and saw two cigar butts on the ground by the vehicle. He also observed additional cigars in the center console of the vehicle.

4. According to officer Phillips, the defendant appeared to nervous since his speech was low and shaky. The defendant seemed to be avoiding eye contact and his hands were trembling. Officer Phillips also reported that the defendants eyes were glassy and watery.

5. Officer Phillips asked the defendant his name and the defendant said “Ken”. Officer Phillips continued and asked for his driver’s license. The defendant responded T do not have one because it was suspended for a previous DUT. Officer Phillips asked how long ago was the DUI. He stated “six (6) years ago”. The defendant preceded to hand officer Phillips his Pennsylvania identification card which confirmed he was telling the truth about his name.

6. Officer Phillips checked the status of the defendant’s operating privileges, and again found out the defendant was telling the truth about his suspended license. Officer Phillips immediately read the defendant section 1547 Chemical Testing Warnings from Penn Dot form DL-27. The defendant read the form and signed it. The defendant was arrested and transported to the Reading Hospital for a blood test at 3:06 pm. After the testing, officer Phillips took the defendant back to his vehicle and drove away.

7. The defendants BAC was 0.00%, with a positive result for Amphetamine (27 ng/ml) andMethamphetamine (300 ng/ml).

8. On October 22nd, 2013, a bill of information was filed charging Kenneth M. Kaylor with one count of driving under the influence of a controlled substance in violation of 75 Pa.C.S.A §3802(d)(l)(ii), count two driving under the influence of a controlled substance/drug in violation of 75 Pa.C.S.A §3802(d)(2), driving while operating privilege is suspended or revoked in violation of 75 Pa.C.S.A §1543(b)(l.l)(i), and driving while operating privilege is suspended or revoked in violation of 75 Pa.C.S.A §1543(b)(l).

CONCLUSIONS OF LAW

1. “Where a defendant files a motion to suppress, the burdens of production and persuasion are on the Commonwealth to prove the challenged evidence was not obtained in violation of the defendant’s rights.” Commonwealth v. West, 834 A.2d 625 at 629 (Pa. Super. 2003), citing Commonwealth v. Wilmington, 729 A.2d 1160 (Pa. Super. 1999); See also Pa.R.Crim.P. 581(H).

2. Section 6308(b) of the Vehicle Code provides:

Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle upon request or signal, for the purpose of checking the vehicle’s registration, proof of financial responsibility, vehicle identification number or engine number or the driver’s license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b) (Emphasis added).

3. “Thus, when an officer has reasonable suspicion a violation of the Vehicle Code is occurring or has occurred, he may interrupt the privileged operation of a vehicle on the public highways and stop the vehicle for the investigative purposes stated therein.” Commonwealth v. Chase, 960 A.2d 108, 112 (Pa. 2008) citing 75 Pa. C.S.A. § 6308(b).

4. “To establish grounds for ‘reasonable suspicion’ ... the officer must articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and the person he stopped was involved in that activity.” Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa. Super. 2006) citing Commonwealth v. Bennet, 827 A.2d 469, 477 (Pa. Super. 2003) (citing Commonwealth v. Cook, 558 Pa.50, 735 A.2d 673, 676 (1999)).

5. “In order to determine whether the police had a reasonable suspicion, the totality of the circumstances-the whole picture-must be considered.” In the Interest of D.M., 781 A.2d 1161, 1163 (Pa.2001) citing United States v. Cortez, 449 U.S. 411, 417 (1981).

6. In making this determination, we must give “due weight... to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.” Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999) quoting Terry v. Ohio, 392 U.S. 1, 27 (1968).

7. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, “[e]ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.” Commonwealth v. Cook, 735 A.2d 673, 676 (Pa.1999) quoting Terry v. Ohio, 392 U.S. 1, 22 (1968).

8. “Reasonable suspicion sufficient to stop a motorist must be viewed from the standpoint of an objectively reasonable police officer.” Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) citing Ornelas v. United States, 517 U.S. 690, 696 (1996).

9. “While it is argued the lesser standard [reasonable suspicion] will allow a vehicle stop to be made based on pretextual motives, the United States Supreme Court made clear that case law ‘ foreclose [s] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.’” Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008) citing Whren v. United States, 517 U.S. 806, 813 (1996); See also Commonwealth v. Foglia, 979 A.2d 357, 361-62 (Pa. Super. 2009) (Stating that observations made after the officer intends to stop the defendant can be used to support their actions).

10. “[I]t is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented.” Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009); See also Commonwealth v. Costa-Hernandez, 802 A.2d 671, 675 (Pa. Super. 2002); See also Commonwealth v. Quiles, 619 A.2d 291, 292 (Pa. Super. 1993) citing Commonwealth v. Smith, 577 A.2d 1387, 1388 (Pa. Super. 1990).

11. “In evaluating an accused’s entitlement to pre-trial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out a prima facie case that the defendant committed the crime with which he or she is charged.” Commonwealth v. Hock, 728 A.2d 943, 945 (Pa. 1999); See generally Commonwealth v. Rachau, 670 A.2d 731, 733 n.5 (Pa. Commw. 1996) citing Commonwealth v. Kowalek, 647 A.2d 948, 949 (Pa. Super. 1994).

12. “A prima facie case of defendant’s guilt exists, so as to satisfy Commonwealth’s burden at pre-trial stage of criminal prosecution, when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense.” Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003) citing Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991) (citing Commonwealth v. Wojdak, 466 A.2d 991 (Pa. 1983)).

13. “The evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to go to the jury.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

14. “In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.” Commonwealth v. Schmohl, — A.2d —, 2009 WL 1451451, filed May 26, 2009.

15. “[Inferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, and the evidence must be read in the light most favorable to the Commonwealth’s case.” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001) quoting Commonwealth v. Owen, 580 A.2d 412, 414 (Pa. Super. 1990).

16. The Motor Vehicle Code provides in pertinent part:

(a) General impairment. — (1) An individual may not drive, operate of be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle. 75 Pa.C.S.A. § 3802(a)(1).

17. 75 Pa.C.S.A. § 3802(a)(1) is an “at the time of driving” offense, requiring that the Commonwealth prove that the accused was driving, operating, or in actual physical control of the movement of the vehicle during the time when he or she was rendered incapable of safely doing so due to the consumption of alcohol. Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009).

18. “The Commonwealth can establish that a defendant had ‘actual physical control’ of a vehicle through wholly circumstantial evidence.” Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) quoting Commonwealth v. Woodruff, 668 A.2d 1158, 1161 (Pa. Super. 1995).

19. “The term ‘operate’ requires evidence of actual physical control of the vehicle to be determined based upon the totality of the circumstances.” Commonwealth v. Williams, A.2d 14, 27 (Pa. Super. 2008) quoting Commonwealth v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005).

20. “Our precedent indicates that a combination of the following factors is required in determining whether a person had ‘actual physical control’ of an automobile: the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle.” Commonwealth v. Williams, A.2d 14, 27 (Pa. Super. 2008) quoting Commonwealth v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005).

21. “[I]t is the sole province of the suppression court to weigh the credibility of the witnesses. Further, the suppression court judge is entitled to believe all, part or none of the evidence presented.” Commonwealth v. Santiago, 980 A.2d 659, 664 (Pa. Super. 2009); See also Commonwealth v. Costa-Hernandez, 802 A.2d 671, 675 (Pa. Super. 2002); See also Commonwealth v. Quiles, 619 A.2d 291, 292 (Pa. Super. 1993) citing Commonwealth v. Smith, 577 A.2d 1387, 1388 (Pa. Super. 1990).

22. In this case officer Phillips observed the defendant discard a cigar while sitting in the driver’s seat of the vehicle in a parking lot. Upon making contact with the defendant, officer Phillips reported that the defendant appeared too nervous since his speech was low and shaky. The defendant seemed to be avoiding eye contact and his hands was trembling. Officer Phillips also mentioned that the defendants eyes were glassy and watery.

It is important to note that the offenses for which the defendant was charged is a “at the time of driving” offense. The term “operate” in driving under the influence of alcohol DUI statute requires evidence of actual physical control of either the machinery of the motor vehicle or the management of the vehicle’s movement, but not evidence that the vehicle was in motion Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa. Super. 2003).

In determining whether a person had actual physical control of automobile to sustain conviction for driving under influence of a controlled substance, the following factors should be considered: whether the motor was running, the location of the vehicle, and any additional evidence showing that the defendanthad driven the vehicle Commonwealth v. Woodruff, 447 Pa. Super. 222, 668 A.2d 1158, 1161 (1995). A determination of actual physical control of a vehicle, as required to sustain conviction for driving under the influence, is based upon the totality of the circumstances Williams, supra at 259. The Commonwealth can establish through wholly circumstantial evidence that a defendant was driving, operating or in actual physical control of a motor vehicle.” Johnson, supra at 263. Showing that an intoxicated defendant started a parked car, without more, is not enough to prove actual physical control necessary to sustain driving under the DUI conviction. Commonwealth must show some additional facts to illustrate that the defendant was a danger to public safety.

According to Commonwealth v. Brotherson 888 A.2d 901 “In a majority of cases, the suspect location of the vehicle, which supports an inference that it was driven, is a key factor in a finding of actual control. See Commonwealth v. Bobotas, 403 Pa. Super. 136, 588 A.2d 518, 521 (1991) (finding actual physical control when the defendant was found parked in an alley, where he had pulled over on the way home, with the motor running); Commonwealth v. Crum, 362 Pa. Super. 110, 523 A.2d 799, 800 (1987) (finding actual physical control when defendant was found sleeping in his parked car, along the side of the road, with the headlights on and the motor running). Conversely, where the location of a car supported the inference that it was not driven, the court rejected the inference of actual physical control. Specifically, in Byers, supra, they concluded that there was no actual physical control even though the motorist was found asleep behind the wheel of his running car, because the car had not been moved from the parking lot of the bar where the motorist became intoxicated.”

In the present case, you have a similar circumstance where the defendant was found eating in a parking lot. The defendant was legally parked. There is no debate that the engine was on when officer Phillips found the defendant. It was in February (winter) and a reasonable inference is that it is cold, therefore the car would have to be active in order to produce heat. The defendant was truthful during the entire encounter and told officer Phillips, he was waiting for a friend. The two (2) cigar butts that officer Phillips saw on the ground, does suggest that the defendant was there for a long period of time. Furthermore, the defendant “never” said to officer Phillips that he drove the vehicle. Officer Phillips “assumed” that information. Either way the mere fact that the vehicle is operational is not enough to establish a DUI.

Also, there is no evidence that the defendant had driven the vehicle while intoxicated. Officer Phillips did not see him drive the vehicle and he does not know how long the vehicle was parked in the lot before the encounter began. Additionally, it is not exactly clear why officer Phillips noticed this vehicle at the McDonald’s parking lot at 2:15 pm. Furthermore, if discarding the cigar butts on the parking lot surface was the probable cause (shaky) for the stop, the court must wonder why the defendant wasn’t charged for that violation. Even though littering is not a “vehicle code violation”

As you can see, the important factors are not present in this case. The vehicle was legally parked in a lot, no field sobriety tests were conducted, there are no PBT results, and officer Phillip did not smell the odor of an alcoholic beverage or drugs. Officer observed the defendant being nervous with glassy eyes (not red), “knowing” the defendant just smoked at least two cigars in an enclosed vehicle, which can clearly cause watery eyes. This is not a clear illustration of the very type of public safety danger that the DUI statute was designed to combat. The driver of the vehicle could have been the friend the defendant was waiting for. In Brother son, the defendant was found guilty because of his location and a 40 ounce open beer bottle was found in the car. He was found on school property. The gate to the school yard was locked and the only way on to the playground was to drive on the grass. This is the type of situation the statute was designed to prevent. Public safety was clearly an issue and was violated.

Lastly, on these facts (Byers), “a panel of this court held that the Commonwealth did not introduce enough evidence to show actual physical control. We held that the Commonwealth must show some additional facts to demonstrate that an intoxicated defendant is a danger to public safety beyond merely starting a parked car. Id. at 470. After noting that the purpose of the drunk driving laws is to keep intoxicated drivers off of the road and to protect the public at large, the Byers court stated: “In the present case, Byers never got onto the road and was not a threat to public safety. The Commonwealth is trying to encourage intoxicated people to ‘sleep it off’ before attempting to drive, yet it wants us to punish Byers for doing just that.”

In this current situation, there is no inference that the defendant recklessly drove in anyway and had actual control of the vehicle. There was no alcohol or drugs seen or found in the vehicle and no one including officer Phillips observed the defendant driving the vehicle. The defendant was not a danger to the public. There was not sufficient probable cause for an arrest. Furthermore, the court would like to note that if officer Phillips truly believed that the defendant was incapable of safe driving, he would not have driven the defendant back to his vehicle after the blood draw. The court finds that the Commonwealth has presented insufficient evidence to establish a prima facie case with respect to all counts.

23. The defendant’s motion for suppression and motion for writ of habeas corpus is granted.

ORDER

And now, this 7th day of January 2015, it is hereby ordered that the defendant’s motion for suppression of the evidence is granted. Furthermore, the defendant’s motion for writ of habeas corpus is granted.


source: Caselaw Access Project

author: MASSIAH-JACKSON, J.,

license: Public Domain

text:
    J.P. v. Richards

      C.P. of Philadelphia County,
    March Term 2013
    No. 4402
    Jan. 29, 2015-
   MASSIAH-JACKSON, J.,

I. FACTUAL BACKGROUND and PROCEDURAL HISTORY

In 1982, the national vice-president of Big Brothers Big Sisters of America published a Report titled “child sexual abuse”. Attorney Donald L. Wolff relied on a host of experts in the fields of mental health, psychology, medicine, social work and more to assist the national organization, the affiliate agencies, the executive directors, professional staffs, parents, boards, volunteers and the community, in the detection, selection, supervision and investigative procedures of alleged abusers. Mr. Wolff noted that Big Brothers Big Sisters of Americas, that is, “we who are in the field of providing service ... to young children”, had actual knowledge that such service attracts child sexual abusers. Wolff Report, pages 1-2.

Vice President Wolff stated in his Report at pages 7-8:

“Generally it is agreed that child molestation type offenses do not involve physical force for the commission of the offense. In fact the reverse is more often true. The offender usually entices through indoctrination the child into the sexual behavior through either persuasion or entrapment in which the child is caused to feel indebted or obligated. Since we deal with boys and girls who may have no adequate role model or parent figure in their lives, it is very characteristic to shower the child with new found approval.... affection and attention with the new relationship. Money, gifts and new, exciting adventures for the child with this new friend all could be ways to pressure the child into approval for otherwise reluctant behavior. Clearly our clients are a ‘high risk’ for the potential abuser. The pedophilic applicant will generally try to encourage overnight visits, weekend stays at his home, or trips which involve travel very early in the relationship.”

In 1991, when J.P. was 8 years old, his mother enrolled him in the Big Brothers program. James W. Richards was selected by Big Brothers to be J.P.’s Mentor. The record reveals that Mr. Richards did in fact “shower” J.P. with attention, gifts, adventures and trips. J.P. spent nights at Mr. Richards home. Before long J.P. was forced to engage in sex acts with James W. Richards. The sexual assaults continued from 1991 through at least 1996. Complaint, Paragraphs 23-49.

In 2011, when J.P. recalled and then disclosed the childhood sexual abuse, an investigation ensued. In March, 2013, J.P. initiated this litigation alleging negligence, negligent hiring, supervision and retention, and battery against, inter alia, defendant-Richards, Big Brothers of Burlington, Camden and Gloucester Counties, and, Big Brothers Big Sisters of America. M.P., who is J.P.’s wife, has filed a loss of consortium claim against All defendants.

Defendants have filed motions for summary judgment, whichplaintiffs oppose. On January 12,2015, oral argument was heard by the court. After careful consideration of all memoranda and Exhibits submitted by the parties, and after hearing the comprehensive presentations on January 12th, this court concludes that all of the motions for summary judgment are denied.

II. LEGAL DISCUSSION

Rule 1035.2 of the Pennsylvania Rules of Civil Procedure states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, 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 juiy trial would require the issues tó be submitted to a jury.”

Initially, we consider defendant-Richards motion to dismiss asserting that this court lacks in personam jurisdiction because the sex acts with the child J.P., did not occur in Pennsylvania. (Control No. 14100596). 42 Pa. C.S.A. §5322.

The defendant argues that with claims of an intentional tort such as battery (Count IV of plaintiffs’ complaint) the tort occurs at the time of the physical sexual assault. Defendant-Richards suggests that “tourist activities” such as attendance at Phillies baseball games, visits to the Philadelphia Auto Show, meals in Philadelphia’s Chinatown, and walks over the Benjamin Franklin Bridge from New Jersey to Philadelphia cannot be considered Battery. See generally, Hearing Transcript, January 12, 2015. Under the circumstances presented in the record here, this court cannot agree.

Plaintiffs’ expert, Sharon W. Doty, describes the process of “seducing a child” as the “grooming” process. Her report, on pages 3-4, identifies physical, psychological and community grooming. Donald Wolffs 1982 description of a predator’s “indoctrination” of the child is strikingly similar.

Section 5322 of Pennsylvania’s Long Arm Statute provides Pennsylvania Courts jurisdiction when that individual:

“(in) Causes harm or tortious injuiy by an act or omission in Pennsylvania,”

In this instance, the series of visits to Pennsylvania were undertaken to bring about the physical sexual acts. Those activities in Pennsylvania were purposeful and directed and met the minimum contacts test of due process. Kubik v. Letteri, 614 A.2d 1110 (Pa. 1992); Mendel v. Williams, 53 A.3d 810 (Pa. Superior Ct. 2012); Schiavone v. Aveta, 41 A.3d 861 (Pa. Superior Ct. 2012). The harm, the tortious injury, and the cause of action of battery, did take place in Pennsylvania because all of the activities were part of the defendant-Richards tortious behavior. Summary judgment cannot be granted as a matter of law.

Next, Big Brothers Big Sisters of Burlington, Camden and Gloucester Counties (“New Jersey”) has filed its motion to strike certain claims from plaintiffs’ complaint (Control No. 14101648):

a. Paragraph 35-asserting that there is no evidence to support that Mr. Richards brought J.P. to the Philadelphia International Auto Show for the purpose of sexually molesting J.P.; and,
b. Paragraph 71-asserting that it is unable to prepare a defense because it does not know what conduct consists of “other things”; and,
c. Paragraph 71 (n) — asserting that plaintiffs have been unable to supports claims of negligence “from facts ... exclusively in the possession of the defendants.”

There is no factual or legal basis for summary judgment presented by this defendant-Big Brothers of New Jersey.

Paragraph 35 of plaintiffs’ complaint when read in context as a complete sentence states:

“35. In January of 1993, Mr. Richards brought J.P. to the Philadelphia International Auto Show for the purposes of furthering his relationship with J.P. and sexually molesting him.”

The record in this litigation supports the averment that the “indoctrination” and “grooming” behaviors of the Big Brothers of New Jersey volunteer (defendant-Richards) included the trips to Philadelphia for purposes of furthering the relationship and pursuing sexual activity with the child. Whether or not sex acts occurred at the Auto Show, defendant-Richards’ behaviors were included in the harm and tortious conduct suffered by plaintiff-J.P.

The challenges to Paragraph 71 are rejected where, as here, the depositions, the documents, internal and confidential organization reports, were ascertained after the filing of the plaintiffs’ complaint. To the extent that plaintiffs’ expert has provided opinions relating to deviations of care, including failures to supervise and train staff and volunteers of this Big Brothers affiliate, Ms. Doty’s conclusions are appropriate for jury consideration. The summary judgment motion cannot be granted for this defendant.

Defendant-Big Brothers Big Sisters of America (“Big Brothers of America”) has filed for summary judgment on the basis that as the national organization it owed no duty of care to plaintiff-J.P. because it had no relationship with the child. (Control No. 14101647). The national organization also contends that it is not vicariously liable for alleged negligence of its affiliate defendant-Big Brothers of New Jersey. The record does not support either of these arguments.

The Pennsylvania Appellate Courts have enunciated several factors that trial courts must “balance” (emphasis in Kenner v. Kappa Alpha Psi Fraternity, Inc., 808 A.2d 178, 182 (Pa. Superior Ct. 2002)), when determining whether a party owes another a duty. In Sharpe v. St. Luke’s Hospital, 821 A.2d 1215 (Pa. 2003), the Supreme Court held at 1219:

“The concept of duty is rooted in public policy, and the determination of whether a duty should be imposed upon an alleged tortfeasor involves a balancing of the following factors:
(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; and (5) the overall public interest in the proposed solution.
Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169 (2000). The inquiry is regarded as a legal determination, assigned in the first instance to the trial court and subject to plenary appellate review. Cf. Emerich v. Philadelphia Ctr. for Human Dev., Inc., 554 Pa. 209, 233, 720 A.2d 1032, 1044 (1998) (‘While the existence of a duty is a question of law, whether there has been a neglect of such duty is generally for the jury’); see also Brisbine v. Outside In Sch. of Experimental Educ., Inc., 799 A.2d 89, 95 (Pa. Super. 2002) (‘Whether a duty exists is a question of law for the trial court to decide’).”

When considering the five factors above, it is apparent that a duty of reasonable care to the child-J.P. does exist. First, Big Brothers of America created the programs, the networks, the affiliates and delivery of services by establishing, inter alia, minimum requirements for volunteer screening and match supervision applicable to J.P, Second, the social utility of a national organization’s “zero tolerance of child abuse” is not in dispute when as early as the 1977 Report Big Brothers of America noted “ignoring [child abuse] won’t make it go away”. Third, this defendant acknowledges the nature of the devastation and injury to the children. The substantial harm of abuse was a foreseeable consequence if volunteers were not appropriately screened, selected and monitored. Fourth, the consequences of imposing this duty is minimal as plaintiffs point out at page 17:

“It is not burdensome of Big Brothers Big Sisters to use its authority under the affiliate agreement to prohibit overnight visits or for Big Brothers Big Sisters to let parents and participants in the program know about the scope and pattern of abuse in the program.”

Fifth, there is a substantial public policy and public interest in Pennsylvania in assuring that the children are not physically and psychologically assaulted. Similarly, the Tennessee Court of Appeals concluded that strong public policy of prevention of child sexual abuse weighs heavily on imposing a duty. Ms. B. v. Boys and Girls Club of Middle Tennessee, Docket No. M2013-00812-COA-R3-CV at page 9:

“The strong public policy of preventing sexual child abuse unambiguously expressed by our general assembly, coupled with the foreseeability and gravity of harm, weigh heavily in favor of imposing a duty of care on [Big Brothers of America] to supervise its affiliates so as to protect against sexual child abuse. As noted above, however, the duty to control the conduct of a third-party, in this case, BBBSMT, does not arise in the absence of ‘the means and ability to control the third party.’ Id. (quoting Newton v. Tinsley, 970 S.W.2d 490, 492 (Tenn.Ct.App.1997)). Regardless of the extent to which [Big Brothers of America] chooses to exercise any right or ability to control its affiliates, [Big Brothers of America] has failed to carry its burden in this case to affirmatively demonstrate that it did not possess the means and ability to control the acts of BBBSMT for the purposes of affirmatively negating mother’s claims of negligent supervision and screening of Mr. Arnold; negligent failure to monitor N; negligent failure to ensure a safe environment; and negligence in the failure to ensure that the match specialist assigned to N was complying with organizational policy and procedures.”

See also, Kenner v. Kappa Alpha Psi Fraternity, Inc., supra, 808 A.2d at 182-183, where the Superior Court held that confining one’s focus on the relationship of the parties is not the standard in Pennsylvania. The Superior Court concluded that a national organization did have a duty to protect initiates from harm when all five factors are balanced by the courts.

Finally, although not dispositive, in response to the notion that “[Big Brothers of America] did not assume a duty to J.P.”, Memorandum, page 13, this court must point to Donald L. Wolff’s 1982 acknowledgement of “the public trust given us to protect the children...”, page 3, and L.P. Reade’s 1977 conclusions that, “...by studying the nature of these occurrences and the individuals and organizations involved, we can really develop methods of protecting the children with whom we deal.”, page 2.

Next, Big Brothers of America asserts Big Brothers of New Jersey is not its agent. Big Brothers of America seeks summary judgment on the basis that it cannot be held vicariously liable. This court does not agree.

Similar arguments were rej ected by the Court of Appeals in Tennessee which provided a thorough overview of the national organization’s structure, as well as the means and ability to control the affiliate’s operations. See, Ms. B. v. Boys and Girls Club of Middle Tennessee, supra, pages 7-10. As mentioned at our hearing, judge Wieand reminded us in his dissenting opinion in Myszkowski v. Penn Stroud Hotel, Inc., 634 A.2d 622 (Pa. Superior Ct. 1993), the issue of control to determine a master-servant relationship is a function for the jury when the precise nature and the relationship and the right to control is at issue. 634 A.2d at 631:

“Broadly stated, if the agent is under the control of the employer, he is a servant; if he is not under such control, he is an independent contractor. Feller v. New Amsterdam Casualty Co., 363 Pa. 483, 486, 70 A.2d 299, 300 (1950). The actual control exercised by an employer over the manner of work, however, is not determinative of the relationship; rather, it is the employer’s right or authority to control which renders one an employee or servant and not an independent contractor. See: Lutz v. Cybularz, supra 414 Pa. Super. at 583, 607 A.2d at 1091. ‘It is the exclusive function of the jury to determine, from the evidence, the precise nature of the relationship, except where the facts are not in dispute, in which latter event the question becomes one for determination by the court.’ Melmed v. Motts, 341 Pa. Super. 427, 430-431, 491 A.2d 892, 893 (1985) (citations omitted).”

On the record herein, there are many issues of fact raised by plaintiffs’ expert, by the documents and by the discovery materials. As of 1991, Big Brothers of America promulgated numerous rules, regulations, standards, program manuals, evaluations and reports directed to their affiliates, including Big Brothers of New Jersey. See, plaintiffs’ memorandum, pages 6-7, quoting the American Bar Association 1991 confidential evaluation. This court cannot conclude as a matter of law that Big Brothers of America did not possess the means, the manner or ability to control the acts and conduct of defendant-Big Brothers of New Jersey. A jury must assess the evidence and arguments.

III. CONCLUSION

A motion for summary judgment may be granted only if there are no genuine issues of any material fact and the moving party is entitled to judgment as a matter of law. This court must resolve all doubts against the moving party. For all of the reasons set forth above the motions for summary judgment filed by James W. Richards, Big Brothers Big Sisters of Burlington, Camden and Gloucester Counties, and Big Brothers Big Sisters of America are denied.


author: SPRECHER, J.,

text:
    Salas v. Wal-Mart Stores, East, Inc.

      C.P. of Berks County,
    No. 11-1137

      Eric Winter, for plaintiff.

      Marc R. Kamin, for defendant.
    Jan. 29, 2015-
   SPRECHER, J.,

Plaintiff appeals the order dated October 20,2014, which sustained defendant’s preliminary objections to the complaint and dismissed the action with prejudice. This opinion is filed pursuant to Pa. R.A.P. 1025.

FACTS

Plaintiff, Jorge Salas, initiated the above captioned case by filing a writ of summons on January 24,2011. The action stems from an alleged slip and fall that occurred on January 23, 2009 at a Wal-Mart retail store located in Temple, Berks County, Pennsylvania. On December 17, 2012, the Prothonotary of Berks County issued a notice of proposed termination of the above captioned case. On February 15, 2013, plaintiff filed a notice of intention to proceed.

On July 17, 2014, plaintiff finally filed his complaint. Plaintiff named Wal-Mart Stores East, Inc., as the defendant. Defendant is a Delaware corporation with its principal place of business in Bentonville, Arkansas. Defendant has a registered mailing office address in Harrisburg, Pennsylvania.

Defendant filed preliminary objections based on improper service. Plaintiff’s affidavit/retum of service states that the summons was served on Phaedra Miller asset protection/person in charge at the Wal-Mart retail store (hereinafter, Store) in Temple. Defendant contended that Store is maintained and operated by Wal-Mart Stores East, L.P. Defendant has never owned, operated, or controlled Store. Defendant also asserted that it does not regularly conduct business or have anyone authorized to accept service on its behalf at Store.

After consideration of the record and argument, this court sustained defendant’s preliminary objections, struck the affidavit/retum of service from the record, and dismissed the action with prejudice. Plaintiff appealed this order.

ISSUES

Plaintiff’s concise statement of errors complained of on appeal stated the following issue.

Whether this court erred in striking the return of service and sustaining the preliminary objections to dismiss the action, where the individual served was a security supervisor for defendant at the location where plaintiff was injured, and that service was timely made.

DISCUSSION

Plaintiff submits that this court erred in striking the return of service and sustaining the preliminary objections to dismiss the action because the individual served was a security supervisor for defendant at the Store where plaintiff was injured and service was timely made. These contentions are without merit.

Pursuant to Pa. R.C.P. 424, service upon a corporation is made by handing a copy to any of the following persons:

(1) An executive officer, partner or trustee of the corporation or similar entity, or
(2) The manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or
(3) An agent authorized by the corporation or similar entity in writing to receive service of process for it.

In the case sub judice, Ms. Miller is clearly not an individual permitted to be served under paragraph (1). No writing has been produced to show that there is any written authorization for her to receive service of process for defendant pursuant to paragraph (3). The service of process states that she is the person in charge of Store; however, she works in the asset protection division of Store. Therefore, she is not a manager or anyone in charge of the entire Store; a security worker or manager does not qualify as the person in charge of the Store. Defendant has a local corporate address in Harrisburg, Pennsylvania where it could have been served.

Furthermore, defendant does not own, operate, or control Store, so Ms. Miller does not work for defendant. Store is maintained and operated by Wal-Mart Stores East, L.P. Plaintiff contends that pursuant to Pa. R.C.P. 2176, Wal-Mart Stores East, L.P. is the same as Wal-Mart Stores East, Inc. This rule defines “corporation or similar entity” as follows:

Includes any public, quasi-public or private corporation, insurance association or exchange, joint stock company or association, limited liability company, professional association, business trust, or any other association which is regarded as an entity distinct from the members composing the association...

Thus, this definition establishes a distinction between a corporation and the individuals who run it.

Under this same rule “corporate name” is defined as “any name, real or fictitious, under which a corporation or similar entity was organized, or conducts business, whether or not such name has been filed or registered.” Therefore, a corporate name does not have to be registered or filed.

These definitions do not mean that as long as the names are similar, as plaintiff suggests, that two separate entities are interchangeable. If plaintiff wanted to file a complaint against Store, he filed a complaint against the wrong defendant. If plaintiff wanted to file a complaint against the defendant that he did, he served the wrong defendant. For these reasons, this court sustained the preliminary objections.

This court dismissed this case because plaintiff has demonstrated a lack of due diligence throughout the history of this lawsuit. He initiated it with a writ of summons on January 24, 2011, the last day before the statute of limitations would run on his tort claim. Plaintiff finally filed his complaint on July 17, 2014. Defendant filed timely preliminaiy objections to the service. Plaintiff argues that service is good and refers to Exhibit A to refute defendant’s preliminary objections. There is no Exhibit A attached to his pleading.

Even assuming arguendo, that plaintiff is correct and the two entities are the same, he still did not serve the summons correctly. A security person is not the person in charge of a corporation; plaintiff had to know that a corporate defendant would have a corporate office where the summons could have been properly served. Plaintiff simply did not execute proper service in the case sub judice. Now, it is more than six years since plaintiff’s alleged accident, and service is still not perfected. At this time, plaintiff cannot cure the service within the time period prescribed by the statute of limitations. Therefore, this court dismissed the action with prejudice.

In accordance with the foregoing opinion, this court submits that this court’s order should be sustained and plaintiff’s appeal denied.


author: BELTRAMI, J.,

text:
    Presto v. Minella Pool Service Co. South

      C.P. of Northampton County,
    No. C-48-CV-2014-371
    Feb. 5, 2015-
   BELTRAMI, J.,

This matter is before the court on “named defendant’s preliminary objections to plaintiff’s complaint,” which were filed on September 18, 2014. On November 7, 2014, plaintiff filed a response to the preliminary objections. Briefs have been filed, and the case was submitted to the court at the November 10,2014, session of argument court.

On January 16, 2014, plaintiff filed a complaint that alleges the following facts. On May 25, 2011, Plaintiff and defendant entered into a contract for defendant to install an in-ground swimming pool at plaintiff’s home for the sum of $34,733.00. (Compl. ¶¶1, 3-4.) Defendant failed to properly compact the soil below the pool during construction. (Id. ¶ 6.) The improper soil compaction caused the pool to sink following construction, damaging the pool and surrounding concrete decking. (Id. ¶¶ 7-8.) Plaintiff claims that he has incurred damages in the amount of $16,220.82 as a result. (Id. ¶ 11.) Plaintiff contends that defendant falsely and/or negligently misrepresented, inter alia, that he was an experienced and skilled pool builder, which induced plaintiff to enter into the contract with defendant. (Id. ¶¶ 19-27.)

In Count I of his complaint, plaintiff alleges breach of contract. In Count II, plaintiff seeks damages for intentional misrepresentation. Count III of the complaint claims negligent misrepresentation. In Count IV, plaintiff alleges breach of warranty. Count VI contains a claim for negligence. Finally, Count VII seeks damages pursuant to the Unfair Trade Practice and Consumer Protection Law (“UTPCPL”).

Defendant raises seven issues in its preliminary objections. First, defendant objects to plaintiff’s request for attorney’s fees in Count I, which contains his breach of contract claim. Any party may file preliminary objections alleging “inclusion of ...impertinent matter.” Pa.R.C.P. No. 1028(a)(2). To be impertinent, “the allegations must be immaterial and inappropriate to the proof of the cause of action.” Common Cause/Pa. v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998).Aparty includes impertinent matter in a pleading by making an inappropriate request for damages. Hudock v. Donegal Mut. Ins. Co., 264 A.2d 668, 671 n.2 (Pa. 1970).

“The general rule is that the parties to litigation are responsible for their own counsel fees and costs unless otherwise provided by statutory authority, agreement of parties, or some other recognized exception.” Cresci Constr. Servs., Inc. v. Martin, 64 A.3d 254, 266 (Pa. Super. 2013) (quoting Cher-Rob, Inc. v. Art Monument Co., 594 A.2d 362, 363 (Pa. Super. 1991) (citations omitted)). In this case, plaintiff argues that the contract allows for attorney’s fees. While this is true, the contract only allows Defendant to recover attorney’s fees, not plaintiff, and only in the event “an attorney is required to secure payment” to defendant from plaintiff for the pool construction. (Prelim. Objections, Ex. A at 1.) Thus, defendant’s first objection will be sustained, and plaintiff’s claim for attorney’s fees, contained in Count I, will be stricken as impertinent.

Next, defendant asserts demurrers to plaintiff’s claims for intentional misrepresentation, negligent misrepresentation, negligence, and violations of the UTPCPL. Those claims are contained in what are identified as Counts II, III, VI, and VII of the complaint respectively. Any party may file preliminary objections alleging “legal insufficiency of a pleading (demurrer).” Pa.R.C.P. No. 1028(a)(4). To sustain a demurrer, a court must be certain that the law will not permit recovery. Commw., Pa. Game Comm’n v. Seneca Res. Corp., 84 A.3d 1098, 1103 (Pa. Commw. 2014). Any doubt as to whether the demurrer should be sustained must be resolved in favor of overruling it. McCord v. Pennsylvanians for Union Reform, 100 A.3d 755, 758 (Pa. Commw. 2014). In ruling on a demurrer, a trial court must accept all material factual averments in a complaint as true, as well as all inferences reasonably deducible therefrom. Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202, 208 (Pa. Super. 2012). “Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer.” Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007) (quoting Cardenas v. Schober, 783 A.2d 317, 321-22 (Pa. Super. 2001)).

In its demurrers, defendant argues that the gist of the action doctrine bars plaintiff from alleging intentional misrepresentation, negligent misrepresentation, negligence, and violations of the UTPCPL because the duties and obligations that are relevant to those causes of action are based upon the written agreement. The gist of the action doctrine was recognized by the Superior Court for the first time in Bash v. Bell Tel. Co. of Pa., 601 A.2d 825 (Pa. Super. 1992). The doctrine is designed to enforce the conceptual distinctions between tort claims and breach of contract claims. eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 14 (Pa. Super. 2002). “As a practical matter, the doctrine precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” Id. The difference between contract claims and tort claims was explained in Bash as follows:

[Although they derive from a common origin, distinct differences between civil actions for tort and contract breach have developed at common law. Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.... To permit a promisee to sue his promisor in tort for breaches of contract inter se would erode the usual rules of contractual recovery and inject confusion into our well-settled forms of actions.

Bash, 601 A.2d at 829.

“[I]t is possible that a breach of contract also gives rise to an actionable tort[.] To be construed as in tort, however, the wrong ascribed to [the] defendant must be the gist of the action, the contract being collateral.” Id. (quoting Closed Circuit Corp. of Am. v. Jerrold Elecs. Corp., 426 F. Supp. 361, 364 (E.D. Pa. 1977)). Atort claim shouldnotbe allowed when “the parties’ obligations are defined by the terms of the contract, and not by the larger social policies embodied by the law of torts.” Id. at 830. Stated another way, “[i]f the plaintiff must rely wholly on the agreement to define the rights that the defendant violated, the claim is generally a contract claim.” Greater Philadelphia Health Servs. II Corp. v. Complete Care Servs., L.P., No. 2387 June Term 2000, Control 081790, 2000 WL 33711052, at * 1 (Ct. of C.P. of Philadelphia Cnty. Nov. 20, 2000). “Courts have generally invoked the gist of the action doctrine to bar a tort claim where the defendant negligently or intentionally breached a contract.” Id. at *2.

With regard to his claims for intentional misrepresentation and negligent misrepresentation, plaintiff avers that defendant’s misrepresentation that he was a skilled pool builder induced plaintiff to enter into the contract. The gist of the action doctrine does not necessarily bar a fraudulent or negligent misrepresentation claim stemming from the inducement to enter into a contract. See Sullivan v. Chartwell Inv. Partners, 873 A.2d 710, 719 (Pa. Super. 2005). In Sullivan, the plaintiff sued his former employee for, inter alia, breach of contract, fraudulent misrepresentation, and negligent misrepresentation arising out of the termination of his employment, the terms of which were governed by compensation and severance agreements. Id. at 713-15. Following the filing of preliminary objections, the trial court dismissed the fraudulent and negligent misrepresentation claims based on the gist of the action doctrine. Id. at 713, 718. In reversing the trial court, the Superior Court held:

Herein, the compensation agreement and the severance agreement clearly govern the parties’ contractual relationship; however, appellant’s allegations do not relate to appellee’s failure to perform its obligations under the contracts. Rather, the tort claims that appellant raised in his amended complaint relate to appellee’s fraudulent promises that induced appellant to enter the contracts. Specifically, appellant alleged that appellee fraudulently and/or negligently agreed to perform obligations that it never intended to perform in order to induce appellant to agree to the proposed changes to his compensation package and to forgo an immediate resignation. See amended complaint, ¶¶ 88-92, at 15 and ¶¶ 147-54, at 25-26. Accordingly, we conclude that since appellant’s tort claims relate to the inducement to contract, they are collateral to the performance of the contracts and therefore, are not barred by the gist-of-the action doctrine.

Id. at 719. Likewise, in the case at bar, plaintiff’s intentional and negligent misrepresentation claims relate to the inducement to contract, not failure to perform under the contract. Thus, the gist of the action doctrine does not bar them, and defendant’s demurrers to Counts II and III of the complaint will be overruled.

In his negligence claim, plaintiff avers that defendant was negligent for “performing the work in a poor, improper, unworkmanlike manner.” (Compl. ¶ 33.) There can be no doubt that these allegations relate to defendant’s failure to perform its obligations under the contract. In other words, this is an allegation that defendant negligently performed under the contract, i.e. breached the contract. As such, plaintiff’s negligence claim is barred by the gist of the action doctrine, and defendant’s demurrer to that claim, which is identified as Count VI in the complaint, will be sustained.

In his claim pursuant to the UTPCPL, plaintiff alleges that defendant engaged in unfair or deceptive acts or practices by making “repairs, improvements or replacements on tangible, real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing.” 73 P.S. § 201-2(4)(xvi) (emphasis added); {See Compl. ¶38(a).) While a claim under Section 201 -2(4)(xvi) would appear to relate wholly to defendant’s performance under the contract, our Supreme Court has ruled that the UTPCPL should be interpreted in the broadest possible way to protect consumers in the marketplace. See Commonwealth v. Monumental Props., Inc., 329 A.2d 812, 817 (Pa. 1974). Moreover, the statutory language of Section 201-2(4)(xvi) itself contemplates liability under the UTPCPL for construction on property that violates the terms of a written contract. 73 P.S. § 201-2(4)(xvi) (“below the standard of that agreed to in writing”). The court could not find a case in which a court found that the gist of the action doctrine bars a claim made under Section 201-2(4)(xvi) of the UTPCPL. Given that the statutory language contemplates both a breach of contract action and a claim under the UTPCPL, given our Supreme Court’s instruction to interpret the UTPCPL broadly and the Superior Court’s recent pronouncement, and given that a demurrer can only be sustained in a case that is free and clear from doubt, the court declines to sustain defendant’s demurrer to plaintiff’s claim pursuant to the UTPCPL, which is identified as Count VII in the complaint.

Finally, defendant asks the court to strike, as impertinent, plaintiff’s claim for attorney’s fees from Count III of the complaint, and plaintiff’s claim for punitive damages in what is identified as Count VII of the complaint. Plaintiff agrees that those claims may be stricken. (See Pl.’s Br. at 7 n.1.)

WHEREFORE, the court enters the following:

ORDER OF COURT

And now, this 5th day of February, 2015, “named defendant’s preliminary objections to plaintiff’s complaint” are hereby sustained, in part, and overruled, in part. It is hereby ordered that:

1. Plaintiff’s claim for attorney’s fees is stricken from Count I of plaintiff’s complaint;

2. Plaintiff’s claim for attorney’s fees is stricken from Count III of plaintiff’s complaint;

3. Plaintiff’s negligence claim, which is contained in what is identified in plaintiff’s complaint as Count VI, is hereby dismissed; and

4. Plaintiff’s claim for punitive damages is stricken from what is identified in plaintiff’s complaint as Count VII.

Defendant shall file an answer to plaintiff’s complaint within twenty (20) days.

      . The complaint states that a copy of the contract is attached thereto as Exhibit “A.” (Compl. ¶ 3.) However, no exhibit is attached to plaintiff’s complaint. A copy of the parties’ contract is attached to defendant’s preliminary objections as Exhibit “A.” (Prelim. Objections ¶ 1; Resp. ¶ 1.)

      . Although identified as Count VI in the complaint, this appears to be a typographical error, as plaintiff’s negligence claim is actually the fifth count in the complaint.

      . Although identified as Count VII in the complaint, this appears to be a typographical error, as plaintiff’s claim under the UTPCPL is actually the sixth count in the complaint.

      . Rather, and to the contrary, the Superior Court recently and affirmatively held that claims brought under Sections 201-2(4)(v), (vii), (ix), (xi), and (xxi) of the UTPCPL are actionable torts separate and apart from a contract, lending support to the court’s conclusion that the instant claim, brought under Section 201-2(4)(xvi), is likewise a tort separate and apart from the parties’ contract and is therefore not barred by the gist of the action doctrine. See Knight v. Springfield Hyundai, 81 A.3d 940, 951 (Pa. Super. 2013). Defendant cites to DeFebo v. Anderson Windows,

        Inc., 654 F. Supp. 2d 285 (E.D. Pa. 2009) in its brief. However, in that case, the court decided the case on the economic loss doctrine, not the gist of the action doctrine. The economic loss doctrine is not applicable to plaintiff’s claims under the UTPCPL. See Knight, 81 A.3d at 952 (“The claims at issue in this case are statutory claims brought pursuant to the UTPCPL, and do not sound in negligence. Therefore, the economic loss doctrine is inapplicable.”).

      . Plaintiff also alleges that defendant violated the catch-all provision of the UTPCPL, by “[ejngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi); (See Compl. ¶ 38(b).) A claim under the catch-all provision is not necessarily barred by the gist of the action doctrine. See Sarsfield v. Citimortgage, Inc., 707 F. Supp. 2d 546, 555-56 (M.D. Pa. 2010).


author: TUNNELL, J.,

text:
    Litwack v. Dreamline

      C.P. of Chester County,
    No. 2012-01333

      Janice E. Falini, for plaintiff.

      George Eager, for defendants, Dreamline, Dreamline Design Build, Dreamline Services, Dreamline Services, LLC, Joe Norley, Jane Norley.

      Anita Fulwiler O ’Meara, for defendants, Mark Litwack and Sheryl Litwack.
    Feb. 6, 2015-
   TUNNELL, J.,

ORDER

And now, this 6th day of February, 2015, upon consideration of the motion of defendants, Mark and Sheryl Litwack, for summary judgment on Count III (negligent supervision) of the complaint of plaintiff, Centaur Construction Company, and the response thereto, it is hereby ordered that the motion is granted.

      . The relevant facts giving rise to these actions are summarized as follows. On September 17, 2010, the Litwacks entered into a standard form agreement (the “agreement”) with defendants Jane and Joe Norley, the Dreamline defendants (as construction managers) and Centaur (as contractor) for the remodeling of the Litwacks’ residence. The contract amount was $100,060, plus a $17,000 roof allowance. (See mem. in support of mot. summ. judgment, at Ex. A.). Although the contract provided for construction start and end dates of September 20, 2010 and December 5, 2010, Lee Smith, principal of Centaur, described the project as “design as you go.” (See id. at Ex. C.) The work remained incomplete in September, 2011 when the Litwacks received notice of a potential lien from one of the suppliers because of nonpayment. (See id. at Ex. A.) According to Centaur, Norley and the Dreamline defendants failed to pay monies designated by the Litwacks for payment to it for completed work and instead they used the monies for their own personal benefit.
      As a result, the Litwacks filed a complaint against defendants Jane and Joe Norley, Centaur and its principal, Lee Smith, for breach of contract, unjust enrichment, violation of the Home Improvement Consumer Protection Act and violation of the Unfair Trade Practices and Consumer Protection Law (Civil Action No. 2012-01333). Thereafter, Centaur filed its own complaint (Civil Action No. 2013-03901) wherein it asserted claims against the Norley and Dreamline defendants for misappropriation of funds/conversion and a claim for “negligent supervision” against the Litwacks related to the above transactions.
      By order of this court dated May 22, 2013, the above captioned actions were consolidated for purposes of discovery and pre-trial motions.
      On October 15,2014, Mark and Sheryl Litwack, defendants in Civil Action No. 2013-03901 (hereinafter the “Litwacks”), filed the present motion for summary judgment seeking dismissal of Count III (negligent supervision) of the complaint of plaintiff, Centaur Construction Company (“Centaur”). The motion was recorded in Litwack v. Dreamline, et al., Civil Action No. 2012-01333. Centaur responded to the motion for summary judgment on November 14, 2014. The response was recorded in Centaur Construction Co. v. Litwack, et al., Civil Action No. 2013-03901. Neither party filed multiple copies of any of their pleadings with the prothonotary. On December 2, 2014, Centaur filed a praecipe to correct the record with the prothonotary in order to properly reflect the filing of the motion for summary judgment and the response thereto.
      The court received and reviewed the motion for summary judgment and the response and concludes that summary judgment on Count III of Centaur’s complaint at Civil Action No. 2013-03901 is appropriate as a matter of law.
      In their motion for summary judgment, the Litwacks argue that Centaur’s negligent supervision claim must be dismissed as a matter of law because it is barred by the “gist of the action” doctrine and alternatively, the “economic loss doctrine.” Centaur argues in response that the claim is not barred because the Litwacks “had a duty to act on and investigate Centaur’s concern as to why Jane Norley and Dreamline et al. were not carrying out their duty as the construction manager, a duty that arose outside of the four comers of the contract documents.” (Mem. in resp. to mot. summ. judgment, at 3-4.) According to Centaur, the Litwacks “failed to supervise and oversee their construction manager to the detriment of Centaur.” (Id.) It further contends that because the gist of the action doctrine does not bar the tort claim, the economic loss doctrine does not apply. (Id. at § III., C.)
      The court finds the negligent supervision claim is not barred by the gist of the action doctrine, but is barred by the economic loss doctrine.
      Summary judgment is proper when after the close of the relevant pleadings “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” and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2(1); Abbott v. Schnader, Harrison, Segal & Lewis, LLP, 805 A.2d 547 (Pa. Super. 2002)(citations omitted). Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. “Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof... establishes the entitlement of the moving party to judgment as a matter of law.” Young v. PennDOT, 560 Pa. 373, 744 A.2d 1276, 1277 (2000). The court will view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State Univ. v. County of Centre, 532 Pa. 142, 615 A.2d 303, 304 (1992).
      The “gist of the action” doctrine, recognized by the Supreme Court in Bash v. Bell Tell Co., 411 Pa. Super. 347, 601 A.2d 825 (1992), is designed to maintain the conceptual distinction between breach of contract claims and tort claims. The doctrine precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims. Id. In the recent case of Bruno v. Erie Insur. Co., 2014 WL 7089987 (Pa. Dec. 15, 2014), the Supreme Court addressed head on how the “gist of the action” doctrine “should be employed to ensure that a party does not bring a tort claim for what is, in actuality, a claim for a breach of contract.” Bruno, at *10.
      The homeowner plaintiffs in Bruno were insureds under a homeowner’s policy issued by Erie Insurance Company. Id. at * 1. During renovations of their home, the Brunos notified Erie that they had discovered mold in their basement. In response, Erie sent an adjuster and engineer to the home to investigate the claim. During their examination at the home, the Brunos claimed that the adjuster and engineer told Mr. Bruno that the mold was harmless and there were no valid health concerns associated with mold. Id. at *2. Eventually, the Brunos began to suffer physical problems. Mrs. Bruno later was diagnosed with throat cancer, which her physicians attributed to toxic mold. Id.

      The Brunos filed a complaint against Erie, its engineer and the prior homeowners. As to Erie, the Brunos asserted that it had engaged in numerous negligent acts and omissions including a failure to recognize the mold problem, misleading the Brunos about the nature of the mold problem and minimizing the dangers of the known mold problem when it knew or should have known otherwise. The trial court sustained Erie’s preliminary objections in the nature of a demurrer based upon the gist of the action doctrine. The Superior Court on appeal affirmed the trial court’s dismissal of the Bruno’s negligence claim against Erie. An interlocutory appeal to the Supreme Court then followed. On appeal, the court was asked to determine whether the gist of the action doctrine barred the negligence claims brought against Erie by its insureds.
      After a detailed history of the development of the gist of the action doctrine in this Commonwealth, the Supreme Court set forth what it called the “touchstone standard” for ascertaining the true gist or gravamen of a claim pled by a plaintiff in a civil complaint: what is the “nature of the duty alleged to have been breached?” The court reasoned as follows:
      “If the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract — i.e., a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract — then the claim is to be viewed as one for breach of contract (citations omitted). If however, the facts establish that the claim involves the violation of a broader social duty owed to all individuals, which is imposed by the law of torts and hence, exists regardless of the contract, then it must be regarded as a tort...
      [A] negligence claim based on the actions of a contracting party in performing contractual obligations is not viewed as an action on the underlying contract itself, since it is not founded on the breach of any of the specific executory promises which comprise the contract. Instead, the contract is regarded merely as the vehicle, or mechanism, which established the relationship between the parties, during which the tort of negligence was committed.”

        Id. at *18-19.
      The court concluded that the Bruno’s claim against Erie was permissible because it was “predicated on the allegedly negligent actions taken by its agents on behalf of Erie while they were performing Erie’s contractual obligation to investigate the claim made by the Brunos under their policy ...” In sum, the court found that it was not alleged that Erie failed to meet its contractual obligations {i.e. investigate a claim and pay for any covered damage) but that Erie acted in a negligent manner in the course of fulfilling their contractual obligations through the actions of its agents. Id. at *19-20.
      Applying these standards to the present case, the court concludes that the negligent supervision claim is one based in tort, not contract, and therefore is not barred by the gist of the action doctrine.
      Both parties in their submissions agree that the agreement executed by them does not include any reference to or impose any specific contractual duty upon the Litwacks to “act on and investigate Centaur’s concern as to why defendant Jane Norley and defendants Dreamline” were not paying Centaur. As to payment, the agreement states only that “[t] he owner shall pay the construction manager in current funds for the performance of the work. . .” and “the owner shall make progress payments on account of the contract sum to the construction manager as provided in the contract documents as follows . . . .” (Litwack’s am. compl., at Ex. B.) Like the Bruno plaintiffs, Centaur’s claim is not that the Litwacks failed to meet their contractual obligation to pay monies to the construction manager as required. In fact, Centaur acknowledges that such payments were made. Rather, Centaur’s claim is that in. fill-filling those contractual obligations, the Litwacks acted negligently and failed to supervise its construction manager and ensure that the payments reached Centaur.
      Whether or not Centaur at the time of trial could establish a claim for negligent supervision is not before the court. Although both parties in their briefs touch at various times on the necessary elements for a negligent supervision claim, the question presented to the court for determination by the Litwacks was: “is Centaur’s negligent supervision claim barred by the gist of the action?” (Mem. in support of mot. summ. judgment, at p. 6.) The court has answered that question “no.” Furthermore, the issue is moot given the court’s conclusion, as discussed below, that any such tort claim is barred by the economic loss doctrine.
      As for the second question presented to the court in the summary judgment motion, whether Centaur’s negligent supervision claim is barred by the economic loss doctrine, the court holds that it is so barred.
      The general rule of law is that economic losses may not be recovered in tort (negligence) absent physical injury or property damage. Aikens v. Baltimore & Ohio R. Co., 348 Pa. Super. 17, 501 A.2d 277 (1985). In Paragraph 71 of its complaint, Centaur seeks damages as follows: $13,881.56 for work performed on the Litwack remodel and it lost two commercial properties with lost value to Centaur of $209,842.00. There is no indication of either personal injury to Centaur or property damage. In fact, Centaur’s only argument in opposition to this part of the motion was to argue that because the gist of the action doctrine does not bar the tort claim, the economic loss doctrine does not apply. The statement is neither accurate nor sufficient to overcome this barrier to recovery.


author: ANDERSON, J.,

text:
    Drum v. Dental Care Real Estate Partnership

      C.P. of Lycoming County,
    No. 13-01,501
    Feb. 6, 2015-
   ANDERSON, J.,

Before the court is the motion in limine filed by defendant on January 22, 2015. Argument was heard February 5, 2015.

In her complaint, plaintiff alleges she slipped and fell on a patch of ice in defendant’s parking lot and that defendant was negligent in the maintenance of that parking lot. She plans to introduce into evidence certain photographic depictions of the parking lot and in the instant motion, defendant seeks to exclude such on the basis that they show the lot under different weather conditions than existed at the time of the fall. Specifically, the photographs show standing water in various areas of the parking lot and defendant argues that in light of plaintiff’s deposition testimony that it had not rained that day, the photos are not relevant. Plaintiff argues that the photos are being used to show that the standing water was caused by improper drainage, that the patch of ice had been the result of such improper drainage (even if not to the same extent), and that defendant had notice of the condition. Defendant’s counter-argument that the condition of the parking lot can be demonstrated by photos of the lot without water on it ignores the drainage issue. Improper drainage cannot effectively be shown without showing the water that is not draining. The court therefore believes the photos are relevant and properly admitted. As to the argument that they might mislead the jury, since plaintiff does not plan to represent that the lot was covered by standing water, and defense counsel can certainly point out to the jury that it was not, and as plaintiff will testify that it was a dry day and she slipped on just an isolated patch of ice, it does not appear the jury will be misled.

Plaintiff also plans to introduce the testimony of an expert witness that the condition of the property violated two provisions of the international property maintenance code and defendant objects to that testimony. The first provision is Section 507, which addresses storm drainage. Defendant claims the section is inapplicable since “there is not a contention that the plaintiff’s fall was caused by improper storm drainage as per the plaintiff, there was no precipitation on the day of the accident.” The second assertion does not necessarily lead to the first, however. The fall is alleged to have occurred on ice and thus the lack of precipitation on that particular day is not dispositive. As noted above, plaintiff does contend the fall was caused by improper storm drainage and thus the section is applicable.

The second provision is Section 302.3, which requires that “[a]ll sidewalks, walkways, stairs, driveways, parking spaces and similar areas shall be kept in a proper state of repair, and maintained free from hazardous conditions.” Defendant argues that this section simply restates a general negligence standard and is not the proper subject for expert testimony. The court agrees. Therefore, this portion of the expert’s testimony will be precluded.

ORDER

And now, this 6th day of February 2015, for the foregoing reasons, the motion in limine is denied in part and granted in part. Mr. Hughes shall not be permitted to testify regarding violations of Section 302.3 of the property maintenance code.


author: MINORA, J.,

text:
    Trojanowicz v. Ford

      C.P. of Lackawanna County,
    No. 2013-CV-223

      Lawrence J. Moran, for plaintiff.

      Joseph Goldberg and Michael B. Pullano, for defendants.
    Feb. 10, 2015-
   MINORA, J.,

Before the court is defendants Archbald Van Pool, Inc.’s (hereinafter “defendant Archbald”) and Kenneth Propst’s (hereinafter “defendant Propst”) petition for appeal of Special Trial Master (STM) for discovery, attorney Henry P. Burke’s order dated August 21,2014. STM Burke entered an order denying defendant Archbald’s and defendant Propst’s motion to compel continued medical examination of plaintiff Lori Trojanowicz (hereinafter “plaintiff’). In that order, STM Burke wrote that “defendant’s Doctor stated that the additional tests... ‘are medically necessary for [him] to render a more accurate and complete examination regarding her condition; The clear implication is that the doctor can render an accurate evaluation without the additional test.” For the reasons that follow, defendants’ petition for appeal of the STM’s order is dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

This case arises from a motor vehicle accident which occurred in the early hours of January 24, 2011. Plaintiff was the passenger in a 2001 Ford Windstar that was owned by defendant Propst and/or defendant Archbald and operated by defendant Propst. Plaintiff’s complaint alleged that plaintiff and defendant Propst were traveling east on State Route 6 near the Exit 1 off ramp in Throop Borough when defendant Propst lost control of the vehicle and struck a concrete barrier located on the roadway. The vehicle allegedly rolled over and came to a final rest on the driver’s side, facing northwest on the Exit # 1 off ramp. Plaintiffs complaint also alleged that defendant Propst lost control of the vehicle as a result of a defectively designed rear axle in the 2001 Ford Windstar. Plaintiff suffered various serious, permanent, disabling injuries and damages.

Defendants Propst and Archbald filed preliminary objections to plaintiffs complaint on November 6, 2013, to which all parties filed a stipulation where plaintiff agreed to withdraw, without prejudice, her punitive damage/reckless language claims against both defendants. Defendant Ford Motor Company (hereinafter “defendant Ford”) filed separate preliminary objections to plaintiffs complaint on November 6,2013, to which all parties filed a stipulation where plaintiff again agreed to withdraw, without prejudice, her punitive damage/reckless language claims against defendant Ford.

On December 6,2013, defendants Propst and Archbald filed separate answers to plaintiffs complaint with new matter and crossclaims against defendant Ford. On December 10, 2013, defendant Ford filed its answer to plaintiff’s complaint with new matter and crossclaims against defendants Propst and Archbald. On December 27, 2013, all parties entered a stipulation permitting defendants Propst and Archbald to amend their respective answers to plaintiffs complaint.

On January 14, 2014, defendants Propst and Archbald filed their respective amended answers to plaintiffs complaint with new matters and crossclaims against defendant Ford, and defendant Ford filed its answer to those crossclaims on January 15, 2014. On February 6, 2014, plaintiff filed her replies to defendants Propst’s and Archbald’s new matters.

The parties then decided to focus their dispute on discovery issues. On July 25,2014, defendants Propst and Archbald collectively filed a motion to compel continued medical examination of plaintiff. In this motion, the defendants requested “an opportunity to fully examine the plaintiff and to determine what claimed conditions are new and what may have been pre-existing.” See defendants’ motion to compel continued medical examination of plaintiff, at 5-6. The defendants alleged that “[ajbsent the completion of the proposed testing, which Dr. Fischbein believes is necessary, the defense will be unable to achieve this objective.” Id., at 6. On August 21, 2014, STM Burke issued an order in favor of plaintiff, denying defendants’ motion to compel. In the order, STM Burke stated that the defendants’ Doctor can render an accurate evaluation in the absence of the additional three (3) hour long testing.

On September 4,2014, defendants Propst and Archbald collectively filed the current appeal of the August 21,2014 order of STM Burke, and on October 8, 2014 defendants filed their brief in support of the appeal of the order. On October 27, 2014, plaintiff filed her brief in opposition to defendants’ appeal of the order, and Defendants filed their reply brief on November 25,2011.

II. LEGAL ARGUMENTS OF THE PARTIES

I. Defendants’ Argument

Defendants argue that “the proposed testing with Dr. Fischbein is certainly within the scope of accepted discovery practice as it relates directly to plaintiffs claimed damages.” See defendants’ brief in support of the appeal of STM’s order Dated August 21, 2014, at 9. Specifically, defendants argue that “[a] substantial component of plaintiff s claimed damages are her ongoing complaints of [Post Traumatic Stress Disorder (hereinafter “PTSD”)] and depressive disorder associated with the accident at issue,” and “Dr. Fishbein concluded that the MMPI and Incomplete Sentence Blank tests are medically necessary to perform a complete evaluation.” Id. Defendants contend that “[i]t belies the spirit of the justice system to prevent a thorough evaluation if its absence will leave a void for speculation and guesswork as to plaintiffs condition when all that is necessary to fill in these gaps is three hours of plaintiff’s time.” Id., at 10. In their reply brief, defendants also argue “ [tjhere is no prejudice to plaintiff by compelling her to complete the examination”, and “plaintiff failed to comply with Pa.R.Civ.P. 4010 when she refused to [c] omplete her psychiatric examination.” See reply brief in support of the appeal of special trial master’s order date 8-21-14, at 1,4.

II. Plaintiffs’ Argument

Plaintiff argues that defendants’ appeal must be dismissed as untimely pursuant to Lackawanna County Local Rule 4000.1(b). See brief in opposition to defendants’ appeal of special trial master’s order dated 8-21-14, at 4. Specifically, plaintiff argues that “the appeal motion is clearly untimely as it was not filed until September 4, 2014, fifteen (15) days after the August 21, 2014 dated order.” Id. Next plaintiff argues that “[s]hould this court determine defendants’ appeal was timely...it is unmistakable that the rules of civil procedure do not support defendants’ position that this court should compel a continued examination of plaintiff.” Id., at 9. In her brief, plaintiff states that while Pennsylvania Rule of Civil Procedure 4010(a)(2) permits the court to order a party to submit to a physical or mental examination, there is nothing in the rule that allows an examining physician to conduct continued examination where the examination has already occurred. Id., at 9-10.

Plaintiff’s third argument contends that “Pennsylvania case law does not support defendants’ position for a continued examination, as evidenced by the fact that defendants do not cite a single case where a court has required the plaintiff to undergo specific ‘testing’ as part of a Rule 4010(a)(2) defense medical ‘examination.’” Id., at 10. In her final argument, plaintiff argues that “[t]he facts of this matter do not support a continued examination of plaintiff’ because I)”[t]he additional tests were not previously disclosed until the day of the exam”, 2) “Dr. Fischbein does not perform the additional tests himself, and 3) “[t]he additional tests are not medically necessary.” Id., at 11-12.

III. DISCUSSION

Lacka.Co. R.C.P. 4000.1 provides in relevant part:

(b) An order of the special trial master may be appealed de novo by presentation of an appeal motion to the designated motions court judge in accordance with Lacka.Co. R.C.P. 206.4(c), together with proof of payment to the clerk of judicial records of an appeal cost in an amount to be set by the court from time to time. The appeal motion shall be filed within ten days of the order of the special trial master and shall be considered by the court pursuant to Lacka.Co. R.C.P. 4000.

See Lacka.Co. R.C.P. 4000.1(b). Timeliness of an appeal is a jurisdictional question, regardless of whether it is an appeal to an appellate court or a de novo appeal in common pleas court. Lee v. Guerin, 735 A.2d 1280, 1281 (Pa. Super. 1999). “Where a statute fixes the time within which an appeal may be taken, the time may not be extended as a matter of indulgence or grace.” Id.

STM Burke issued the order denying defendants ’ motion to compel continued medical examination of plaintiff on August 21, 2014. The record reflects that defendants did not file the current appeal until September 4, 2014, fourteen (14) days after STM Burke’s order. Lacka.Co. R.C.P. 4000.1(b) requires a party’s appeal motion to be filed within ten (10) days of the STM’s order. In their brief, defendants argue that since they received the subject order on August 26, 2014 their appeal is timely because it was filed within ten (10) days of notice of the order. See defendants’ brief in support of the appeal of STM’s order dated August 21, 2014, at 6. However, defendants fail to cite any case law, nor does this court find any case law, in support of this argument. The Lackawanna County R.C.P 4000.1(b) requires an appeal motion to be filed “...within ten (10) days of the order of the special trial master,” not within ten (10) days of receipt of notice.

Defendants argue that the order should be set aside and plaintiff should be compelled to appear for a continued medical examination because the Pennsylvania Rules of Civil Procedure expressly permit examination of a party where his or her condition is in controversy. Id. Defendants further argue that the Pennsylvania Rules of Civil Procedure allow for liberal discovery so as to secure a just resolution. Id. Pa. R.C.P. 4003.1 provides that “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Pa. R.C.P. 4000.1(a). With regard to physical and mental examinations of persons, “[w]hen the mental or physical condition of a party... is in controversy, the court...may order the party to submit to a physical or mental examination by an examiner or to produce for examination the person in the party’s custody or legal control.” Pa. R.C.P. 4010. While Pa. R.C.P. 4010 provides that a party may be required to submit to an independent medical examination (hereinafter “IME”), it is up to the court’s discretion whether a party is required to do so. Here, plaintiff previously submitted to an examination on July 2, 2014, and STM Burke found that defendants’ doctor was able to render an accurate evaluation in the absence of the additional tests requested in the motion to compel continued medical examination of the plaintiff.

Defendants finally argue “there is no prejudice to plaintiff in compelling this examination to occur insofar as the examination could be completed in less than three (3) hours and plaintiff is permitted to take as many breaks as she wishes.” See defendants’ brief in support of the appeal of STM’s order dated August 21,2014, at 6. While it may be true that there is no prejudice to the plaintiff in submitting to the additional testing, there is nothing in Pa. R.C.P 4010, nor any case law, that requires a plaintiffs prejudice to be considered when requiring a party to submit to an IME.

Defendants’ appeal of the STM order of August 21, 2014 is dismissed as untimely. However, in the interest of thoroughness, as per the above, if reviewed in substance defendant’s motion to appeal the decision of the STM is without merit. Pa. R.C.P. 4010(a)(2) authorizes this court to order the mental or physical examination of a party when the mental or physical condition of that party is in controversy. There is nothing in the rule cited which permits an examining physician to conduct redundant examinations nor continued examinations absent an alleged intentional concealment of plaintiffs injury at the time of the first examination or a substantial change in plaintiffs condition or a new condition alleged to have arisen subsequent to the last IME. See Wilczynski v. Lackwanna County Multi-Purpose Stadium Authority, 1999 WL 1442426, at 343-344; Driscoll v. Walker, 2001 WL 34644560, at 320; Lodolce v. Township of Roaring Brook, 99 Lacka. Jur. 54, 57 (1998).

Furthermore, Pa. R.C.P 4010(a)(3) mandates notice to all parties of such an examination and such notice “shall specify the time, place manner, conditions and scope of the examination and the person or persons by whom it is to be made.” Pa. R.C.P. 4010(a)(3). Further, such an order can only be made “on motion for good cause shown and upon notice to the person to be examined.” Id.; See also John M. v. Paula T., 571 A.2d 1380, at 1383 (Pa. 1990); Uhl v. C.H. Shoemaker & Son. Inc., 637 A.2d 1358, 1360 (Pa. Super. 1994). The good cause requirement is intended to ensure that a plaintiffs privacy is not unduly invaded. Uhl, 637 A.2d at 1360. “The determination of whether the requisite good cause exists is left to the sound discretion of the trial court and this discretion may not be reversed on appeal unless it is manifestly unreasonable and/or an abuse of discretion.” Wilczynski, 1999 WL 1442426, at 340-341.

In our case, there is no good cause shown for the need for a second IME. There is no allegation made that there has been amendments or new allegations by plaintiff that show a substantial change in plaintiff’s condition nor a new condition occurring subsequent to the last IME. Neither is there any allegation of plaintiff’s concealment an injury. Without those new conditions there exists no good cause shown by defendant for “a second bite of the apple” for the mere purpose of enhancing their expert’s last IME report.

Second, this court cannot countenance the defendants’ attempt to circumvent Pa. R.C.P. 4010 by their attempt to force upon the plaintiff a three (3) hour examination of plaintiff to be conducted without complete notice to plaintiff and also without plaintiff being notified as to who will be conducting the examination on behalf of the examining physician or defendant. Pa. R.C.P. 4010(a)(3) clearly requires that notice to plaintiff and to all parties “shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.” Pa. R.C.P. 4010(a)(3) (emphasis added).

In sum, the examining Doctor, Dr. Fischbein, indicates that he can do an accurate exam, he simply seeks to make it more accurate. That makes for a dubious claim for good cause. Putting that aside, however, there is nothing in the rules of discovery which compel a plaintiff to submit to testing unrelated to treatment as part of defendant’s IME. Finally, discovery by ambush can never be allowed nor countenanced by the court nor the discovery rules. The proposed additional tests were not noticed by defendant nor disclosed to plaintiff until the day of the exam. Dr. Fischbein does not perform the additional tests himself and the tester’s identity was not noticed to plaintiff, and finally the proposed additional tests are not medically necessary. This analysis places defendants in substantive violation of Pa. R.C.P.4010(a)(3) which compels that plaintiff receive notice of the manner, scope and person or persons conducting the exam. Here, plaintiff had no prior notice of the additional tests nor of the new additional person conducting the tests on behalf of Dr. Fischbein. For those two flagrant violations of Pa. R.C.P. 4010(a)(3) alone, we would deny defendants’ requested appeal of the STM’s discovery order at issue. An appropriate order follows.

ORDER

And now, this 10th day of February 2015, upon consideration of the motions, responsive pleadings and briefs and the able verbal and written arguments of counsel for the parties regarding defendants’ appeal of the August 21, 2014 order of special trial master denying defendants’ motion to compel continued medical examination of plaintiff, it is hereby ordered and decreed that defendants’ appeal of the special trial master’s discovery order of August 21,2014 is dismissed both on substance as well as for being untimely pursuant to Lacka.Co. R.C.P. 4000.1 (b).