author: NEW, J.,

text:
    Smith v. Ford Motor Co.

      C.P. of Philadelphia,
    September Term, 2011
    No. 1814

      Benjamin P. Shein and John P Kopesky, for appellant.

      Sharon L. Caffrey, Robert L. Byer, Andrew R. Sperl and Alyson W. Lotman, for appellee Ford Motor Co.

      Anne Kai Seelaus and Timothy B. Barnard, for appellee Borg Warner Corp.

    January 24, 2014 —
   NEW, J.,

Plaintiff, Amy R. Smith, Executrix of the Estate of Paul Rowland (“Mr. Rowland”), appeals the October 17, 2013 orders granting summary judgment in favor of defendant Ford Motor Company and the October 18, 2013 order granting summary judgment in favor of defendant Borg Warner Corporation (“Borg Warner”). The orders should be affirmed because plaintiff has not established Mr. Rowland’s exposure to products attributable to defendant Ford Motor Company or defendant Borg Warner.

I. BACKGROUND

Mr. Rowland commenced this action on his own behalf in September 2011, claiming he developed mesothelioma as a result of inhaling asbestos-containing dust from automotive parts. In his short-form complaint, Mr. Rowland averred defendant Ford Motor Company and defendant Borg Warner each “directly or indirectly” manufactured, produced, sold, or supplied some of the automotive parts at issue.

The overwhelming majority of Mr. Rowland’s alleged exposure to automotive parts occurred throughout his childhood and young adulthood in England, from approximately 1967 to 1983. During that timeframe, Mr. Rowland lived in his parents’ Uttoxeter, England home while his father was employed as an auto mechanic at a garage. Mr. Rowland testified to inhaling dust when he visited his father’s garage and when he came in contact with his father’s person and clothing at home. Mr. Rowland’s father testified to using “Borg & Beck” brand clutches and “Ford” brand brakes and clutches at the garage.

It is undisputed the “Borg & Beck” clutches were manufactured and supplied by the English company Borg & Beck, Ltd. (“Borg & Beck Britain”). The record reflects the “Borg & Beck” name originated with an American company called Borg & Beck (“Borg & Beck US”). However, as of June 1, 1965, defendant Borg Warner and Borg Warner International had exclusive rights to manufacture and supply “Borg & Beck” clutches in the United States, and Automotive Products and Borg & Beck Britain had exclusive rights to manufacture and supply “Borg & Beck” clutches in the United Kingdom.

Additionally, it is undisputed the “Ford” brakes and clutches Mr. Rowland’s father used in England were manufactured and supplied by Ford Motor Company’s wholly owned subsidiary, Ford Motor Company Limited (“Ford of Britain”).

In addition to Mr. Rowland’s extensive alleged exposure in England, he was also allegedly exposed to one set of brakes manufactured and/or supplied by Ford Motor Company while he was living in the United States. Mr. Rowland moved to Maiyland in 1988 and purchased a Ford Mustang in approximately 1990. When Mr. Rowland noticed a problem with the Mustang’s original Ford Motor Company brakes, he inspected the brakes one time. Shortly thereafter, Mr. Rowland stood by while his father inspected the Ford Motor Company brakes and replaced them with brakes from Pep Boys.

Based on this record of the facts, defendants Ford Motor Company and Borg Warner filed motions for summary judgment on September 20, 2013. Plaintiff filed answers on October 7, 2013. The parties also filed several replies and sur-replies.

In its first motion, defendant Ford Motor Company argued plaintiff had improperly sued it based on “Ford” parts manufactured and supplied by Ford of Britain, a totally separate corporation. In response, plaintiff sought to pierce the corporate veil, arguing defendant Ford Motor Company was liable for the Ford of Britain parts because Ford of Britain was defendant Ford Motor Company’s “alter ego.” In addition, plaintiff argued defendant Ford Motor Company was liable as the “apparent manufacturer” of the “Ford” parts manufactured and sold by Ford of Britain, under § 400 of the Restatement (Second) of Torts.

Defendant Borg Warner similarly claimed it was entitled to summary judgment because the “Borg & Beck” clutches used by Mr. Rowland’s father were attributable to Borg & Beck Britain, a distinct corporation. Although plaintiff conceded the “Borg & Beck” clutches were manufactured and sold by Borg & Beck Britain, plaintiff argued defendant Borg Warner was liable as the “apparent manufacturer” of said clutches, under § 400 of the Restatement (Second) of Torts.

In a second motion, defendant Ford Motor Company argued Mr. Rowland’s exposure to Ford Motor Company brakes in the United States was de minimus as a matter of law. In response, plaintiff argued there was sufficient evidence of Mr. Rowland’s exposure to dust from the Ford Motor Company brakes on his Ford Mustang.

Upon consideration of the foregoing arguments, this court granted defendant Ford Motor Company and defendant Borg Warner’s motions by orders dated October 17 and 18, 2013.

II. DISCUSSION

In Pennsylvania, strict liability asbestos claims generally proceed against the manufacturer or supplier of the asbestos-containing product at issue. See, Restatement (Second) of Torts §402A(1965); Eckenrod v. GAF Corp., 375 Pa. Super. 187, 190-91 (1988); Kolar v. Buffalo Pumps Inc., 15 Pa. D. & C. 5th 38, 45-46 (Pa. C.P. 2010).

Nonetheless, in this case, plaintiff sued defendants Ford Motor Company and Borg Warner based on automotive parts they did not manufacture or supply. Conversely, plaintiff did not sue Ford of Britain or Borg & Beck Britain, the undisputed manufacturers and/or suppliers of the “Ford” and “Borg & Beck” parts at issue. Essentially, once the statutory limitations period had expired, plaintiff creatively attempted to collect damages from Ford Motor Company and Borg Warner, the only named defendants with any connection to Ford of Britain and Borg & Beck Britain. Plaintiff’s efforts were unavailing.

To the extent plaintiff sued defendant Ford Motor Company based on products it did manufacture or supply, Ford Motor Company is nonetheless entitled to summary judgment pursuant to Eckenrod, 375 Pa. Super. 187.

B. Piercing the Corporate Veil

Plaintiff has not made out a case for piercing Ford of Britain’s corporate veil.

In rare cases, a plaintiff may pierce the corporate veil to pursue a parent company for its subsidiary’s liabilities. See, Kiehl v. Action Mfg. Co., 517 Pa. 183, 190 (1987). There is a strong presumption against piercing in Pennsylvania. Lumax Industries, Inc. v. Aultman, 543 Pa. 38 (1995).

Piercing is permissible under the “alter ego” theory only if the parent exercised such domination and control over the subsidiary that the subsidiary was a mere alter ego of the parent, with no separate existence. Botwinick v. Credit Exch., Inc., 419 Pa. 65, 72 (1965); Allegheny Energy Supply Co., LLC v. Wolf Run Min. Co., 2012 Pa. Super 163 (2012). A case for piercing is not made out by merely showing the parent owned the subsidiary, the parent exercised some control over the subsidiary, and/or the parent and the subsidiary had similar names. Botwinick, 419 Pa. 65, 72; see, Pearson v. Component Tech. Corp., 247 F.3d 471, 484 (3d Cir. 2001); E-Time Sys., Inc. v. Voicestream Wireless Com., 2002 WL 1917697, 11-12 (E.D. Pa. Aug. 19, 2002). There must be evidence the subsidiary was undercapitalized, the entities did not adhere to corporate formalities, or the entities intermingled their affairs or their funds. Lumax, 543 Pa. 38; see, Alleagheny Energy Supply Co., LLC, 2012 Pa. Super 163; E-Time Sys., Inc., 2002 WL 1917697, 11-12.

Here, plaintiff has not demonstrated an abuse of the corporate form which would persuade this court to pierce Ford of Britain’s corporate veil. Defendant Ford Motor Company avers Ford of Britain is and has been a fully operational company with plants and research and development centers throughout the United Kingdom. Defendant Ford Motor Company also avers Ford of Britain manufactured and supplied automobiles and replacement parts in England during the relevant time period of 1967 to 1983. Moreover, defendant Ford Motor Company avers Ford of Britain is and has been a fully funded and viable company which maintains separate and independent books, records, financial statements, and bank accounts.

Plaintiff does not refute these averments. Instead, plaintiff argues defendant Ford Motor Company has guaranteed Ford of Britain’s obligations and debts and presently includes Ford of Britain’s financial data in its annual reports. Further, plaintiff argues defendant Ford Motor Company “dominated and controlled” Ford of Britain by requiring approval of its officers and directors, supervising its operations and product lines, and approving certain aspects of its day-to-day business activities, inter alia. Plaintiff essentially seeks to hold defendant Ford Motor Company liable based on its normal parent-subsidiary relationship with Ford of Britain.

Plaintiff has not demonstrated the level of domination and control necessary to pierce the corporate veil.

B. Restatement (Second) of Torts § 400

This court also rejects plaintiff’s argument that defendants Ford Motor Company and Borg Warner are liable as the “apparent manufacturers” of the Ford of Britain and Borg & Beck automotive parts at issue.

Section 400 of the Restatement (Second) of Torts, which has been adopted by Pennsylvania, provides, “One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.” Restatement (Second) of Torts § 400 (1965); Forry v. Gulf Oil Corp., 428 Pa. 334 (1968). Stated differently, a defendant may be liable as the “apparent manufacturer” of a product it does not actually manufacture but nonetheless “puts out as his own.” Id.

To determine when a defendant “puts [a product] out as his own” within the meaning of § 400, Pennsylvania courts have relied on comment d to the rule, which provides:

The actor puts out a chattel as his own product in two types of cases. The first is where the actor appears to be the manufacturer of the chattel. The second is where the chattel appears to have been made particularly for the actor. In the first type of case the actor frequently causes the chattel to be used in reliance upon his care in making it; in the second, he frequently causes the chattel to be used in reliance upon a belief that he has required it to be made properly for him and that the actor’s reputation is an assurance to the user of the quality of the product.... Thus, one puts out a chattel as his own product when he puts it out under his name or affixes to it his trade name or trademark...

Restatement (Second) of Torts § 400, cmt. d; see, Forry, 428 Pa. 334 at 343-44; Brandimarti v. Caterpillar Tractor Co., 364 Pa. Super. 26, 36-37 (1987).

The courts have focused on whether a user would likely interpret the defendant manufactured the product and, accordingly, rely on the defendant’s reputation as an assurance of the product’s quality. Forry, 428 Pa. 334 at 343-44; Brandimarti, 364 Pa. Super. 26 at 36-37; see, Carter v. Joseph Bancroft & Sons Co., 360 F. Supp. 1103, 1105-10 (E.D. Pa. 1973). For example, the Forry Court held a defendant tire distributor, Gulf Tire, was the apparent manufacturer of a tire which it purchased from the manufacturer, embossed with the Gulf Tire name, and sold to the retailer. Id. at 335, 344.

Additionally, the Brandimarti Court held that Caterpillar was the apparent manufacturer of a forklift which was manufactured by its subsidiary, Towmotor, but which Caterpillar allowed to display the Caterpillar name. 364 Pa. Super. 26 at 35-37. Caterpillar could reasonably expect users to purchase the forklift in reliance on the skill and reputation associated with the Caterpillar name. Id. at 36.

Similarly, in Carter, the court held the defendants were the apparent manufacturers of a dress which was labeled with the defendants’ names and their “BAN-LON” trademark, as well as a statement the dress was made according to the defendants’ standards. 360 F. Supp. 1103 at 1105-10. The label was an assurance to consumers. Id. at 1107.

In the same vein, in Burch, the fact Sears sold an electric power mower under its own brand name, “Craftsman,” weighed in favor of holding Sears liable although it was not the manufacturer of the mower. Burch v. Sears, Roebuck & Co., 320 Pa. Super. 444, 460 (1983).

In each of the foregoing cases, the defendant labeled the product, or allowed the product to be labeled, with a name or trademark which readily identified the defendant as opposed to the actual manufacturer. See, Forry, 428 Pa. 334; Brandimarti, 364 Pa. Super. 26; Carter, 360 F.Supp. 1103; Burch, 320 Pa. Super. 444 at 460. As a result, users were likely to perceive the defendant manufactured the product and, in turn, rely on the defendant’s reputation. See, Forry, 428 Pa. 334; Brandimarti, 364 Pa. Super. 26; Carter, 360 F. Supp. 1103; Burch, 320 Pa. Super. 444 at 460.

Despite the general emphasis on the user’s perception, the defendant’s degree of control over the product is significant. The plain language of § 400 suggests an apparent manufacturer is generally the seller or supplier of the product at issue. Restatement (Second) of Torts § 400; Pridgen v. Parker Hannifin, Corp., 591 Pa. 305, 310 (2007). Moreover, the apparent manufacturer in the seminal case of Forry was a supplier of the product at issue. Forry, 428 Pa. 334. Still, a non-seller, non-supplier defendant may be an apparent manufacturer if the defendant is “sufficiently involved in the manufacturing process” or otherwise exercises control over the product. See, Carter, 360 F. Supp. 1103 at 1106-07; Brandimarti, 364 Pa. Super. 26 at 36. This keeps with Pennsylvania’s policy of imposing liability upon those in the best position to prevent product defects and spread costs. See, Burch, 320 Pa. Super. 444 at 456.

In this case, there is an insufficient basis for holding defendants Ford Motor Company and Borg Warner liable for the automotive parts Mr. Rowland’s father used in England. Ford Motor Company and Borg Warner had little to no control over the “Ford” and “Borg & Beck” parts, and there is no indication those parts were “put out” as Ford Motor Company and Borg Warner’s. The “Ford” and “Borg & Beck” parts were undisputedly manufactured and/or supplied by Ford of Britain and Borg & Beck Britain. Ford of Britain was a fully-functioning, separate entity from Ford Motor Company. The “Ford” name was not synonymous with Ford Motor Company, an American corporation. Likewise, Borg & Beck Britain was its own corporation. The “Borg & Beck” trademark was shared between Borg & Beck Britain and Borg Warner. The “Borg & Beck” name was not synonymous with Borg Warner, an Ajmerican corporation. Whereas Gulf Tire was likely to be perceived as the manufacturer of the tire embossed with the Gulf Tire name in Forry, and Caterpillar was likely to be perceived as the manufacturer of the forklift bearing the Caterpillar name in Brandimarti, there is no indication a english user of the Ford of Britain and Borg & Beck parts would have thought those parts were manufactured by defendants Ford Motor Company and Borg Warner.

Accordingly, Ford Motor Company and Borg Warner were not apparent manufacturers under §400.

C. Exposure to Ford Motor Company Brakes in Maryland

Finally, Mr. Rowland’s exposure to the Ford Motor Company brakes on his Ford Mustang was de minimus as a matter of law.

A plaintiff in an asbestos action is generally required to show the decedent was proximately, frequently, and regularly exposed to the defendant’s asbestos-containing product. Eckenrod, 375 Pa. Super. 187 at 192; Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 289-90 (2007). The frequency and regularity prongs become “somewhat less cumbersome” in cases involving mesothelioma, which can develop after only minor exposures to asbestos fibers. Id. at 289-90. Nonetheless, the decedent’s exposure to the defendant’s product must be more than de minimus. Id.

Here, Mr. Rowland was exposed to a minimal amount of dust from one set of Ford Motor Company brakes. The only Ford Motor Company brakes with which Mr. Rowland had any direct contact were those installed on his Ford Mustang when he purchased it. Mr. Rowland could only have inhaled dust from said Ford Motor Company brakes on a maximum of three (3) occasions: when he inspected them himself, when his father inspected them, and when his father removed them Mr. Rowland’s testimony reflects he may have been exposed to some dust during the mere minutes he spent inspecting the Ford Motor Company brakes on his own. He may have also inhaled some dust when his father inspected and removed the Ford Motor Company brakes in his presence.

Mr. Rowland’s foregoing exposure to one set of Ford Motor Company brakes is de minimus compared to his alternative sources of his exposure. Plaintiff describes at length Mr. Rowland’s proximate, frequent, and regular exposure to asbestos-containing dust in England during the 1967 to 1986 timeframe. Plaintiff goes so far as to aver Mr. Rowland “was exposed to asbestos through daily direct physical contact with his father and his father’s work clothes, and from regular after-school visits to his father’s workplace — where he was directly exposed to asbestos-laden dust.”

Wherefore, this court found Mr. Rowland’s exposure to dust from one set of Ford Motor Company brakes to be de minimus as a matter of law.

III. CONCLUSION

For the foregoing reasons, this court respectfully requests that the orders granting summary judgment in favor defendants Ford Motor Company and Borg Warner be affirmed.

      . Pl.’s short-form compl. at¶¶ 3,4.

      . Pl.’s short-form compl. at ¶ 14; Ex. A to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. Based on no liability for Ford of Britain (“Ford Motor Company’s Mot. for Sum. J. I”), 53-54.

      . Pl.’s short-form compl. at ¶ 14; Ex. A to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. I at 53-54.

      . Ex. A to PL’s Ans. to Ford Motor Company’s Mot. for Sum. J. I at 55-65, 68-71; Ex. D to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. I at 129-133.

      . Ex. C to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. I at 31-32, 45,67, 109-110.

      . Ex. J to Pl.’s Ans. to Borg Warner’s Mot. for Sum. J., p. 1-2.

      . Ex. L to Pl.’s Ans. to Borg Warner’s Mot. for Sum. J., Nos. 5, 6.

      . Ford Motor Company acknowledges Ford of Britain was a wholly owned subsidiary of Blue Oval Holdings, which was a wholly owned subsidiary of Ford International Capital LLC, which was a wholly owned subsidiary of Ford Motor Company.

      . Pl.’s Short-Form Compl. at ¶14; Ex. A to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. Based on Eckenrodand Gregg (“Ford Motor Company’s Mot. for Stun. J. II”), 25, 36, 103-04; Ex. D to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 37.

      . Ex. A to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 25, 103-04; Ex. D to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 29.

      . Ex. A to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 105-09; Ex. D to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 29-33, 37.

      . Ex. A to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 105-09 (reflecting Mr. Rowland’s father showed him how to clean the Ford Motor Company brakes, and Mr. Rowland sat on the wheel while his father replaced the Ford Motor Company brakes); Ex. C to PL’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 125-26 (reflecting Mr. Rowland’s father examined the Ford Motor Company brakes, and Mr. Rowland helped him); Ex. D to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 29-33, 37.

      . Section 402A provides for the strict liability of “sellers,” including manufacturers or distributors. Id.

      . “In order for liability to attach in a products liability action, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier.” Id. (emphasis added).

      . A manufacturer may also be liable for asbestos parts installed onto its products if the manufacturer’s products require the asbestos parts to function properly and/or the manufacturer “calls for the use” of (“specifies”) the asbestos parts. Id.

      . The court noted “the act of placing one’s name on a product is a factor in assessing responsibility,” but ultimately affirmed the jury’s award of indemnity to sears. Id.

      . The rule is clearly titled, '’'‘Selling as own product chattel made by another.” Restatement (Second) of Torts § 400. Moreover, the commentary states it applies to “anyone who supplies [the product] to others for their own use or for the use of third persons, either by sale or lease or by gift or loan.” Restatement (Second) of Torts § 400, cmt. a. (emphasis added).

      . The Supreme Court of Pennsylvania noted §400 “by its terms” applies to “one who supplies another’s product.” Id. (emphasis added).

      . The Brandimarti Court emphasized that “although Caterpillar did not manufacture the product at issue and was not a supplier of the product participating in the chain of distribution, it did permit its name to appear on the equipment.” Id.

      . Ex. L to Pl.’s Ans. to Borg Warner’s Mot. for Sum. J., Nos. 5, 6.

      . Ex. A to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 106-07; Ex. D to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 29-33, 34-37. (To the extent Mr. Rowland was exposed to replacement brakes applied to his Ford Mustang, those brakes were from Pep Boys, not Ford Motor Company. Ex. A to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 107-114.)

      . Ex. A to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 106-09; Ex. D to PL’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 29-33, 34-37.

      . Mr. Rowland testified dust was generally produced in the course of inspecting brakes, which involved cleaning them with sandpaper. Ex. D to Pl.’s Ans. to Ford Motor Company’s Mot. for Sum. J. II at 32-33. He spent a total of less than ten (10) minutes inspecting and cleaning the Ford Motor Company brakes at issue (though it took an additional two (2) hours to remove the wheels and brake drums). Id. at 30-32.

      . The record reflects dust was generally created in the course of inspecting and replacing brakes, and Mr. Rowland was nearby while his father inspected and replaced the Ford Motor Company brakes at issue. Id.; see note 12, supra.

      . Pl.’s Ans. at p. 2.


source: Caselaw Access Project

author: FORD, J.,

license: Public Domain

text:
    Abeln v. Eidelman

      C.P. of Lehigh County,
    No. 2009-C-6037

      Richard L. Copian, for plaintiff.

      Arthur W. Lefco, for defendant.
    November 8, 2013 —
   FORD, J.,

This is a legal malpractice case in which plaintiff/appellant, Paul J. Abeln, brought suit against defendant/appellee, Attorney Richard Huntington Pepper, and attorney Mary J. B. Eidelman who is not a party to this appeal before the Superior Court of Pennsylvania. I granted defense motions for summary judgment dismissing the claims against both attorney defendants. Appellant Abeln filed the present appeal from my granting the motion for summary judgment in favor of appellee Pepper.

Case History

This legal malpractice action arises from a custody case, Paul J. Abeln v. Heidi C. Noll, Lehigh County number 2007-FC-0427 (“the custody case”). In this malpractice suit, appellant claims that each of the attorney defendants by their consecutive representation in the custody case was responsible for diminishing through court orders his custody rights to Paul Christopher Abeln, the child that he has with Heidi C. Noll (“mother”).

Appellant commenced this malpractice suit on November 13, 2009, by filing a praecipe for writ of summons. Thereafter, appellant filed a complaint on January 22,2010. After discovery, each attorney defendant filed a motion for summary judgment on September 1, 2011. I granted the motions for summary judgment in favor of the attorney defendants and against appellant on January 25, 2012. The judgment were not appealable at that point because appellee Pepper had an unresolved counterclaim for counsel fees filed under this same case number.

On November 6, 2012, I entered an order granting attorney Eidelman’s uncontested motion to sever the malpractice claim brought against her from the malpractice claim brought against appellee Pepper. Appellant Abeln filed a notice of appeal to the Superior Court from the January 25, 2012, order granting summary judgment in favor of attorney Eidelman. That appeal is pending at Superior Court docket number 1978 EDA 2013.

On September 6, 2013, judgment was entered in favor of appellee Pepper and against appellant on Pepper’s counterclaim for counsel fees which Pepper filed in response to appellant’s malpractice complaint. On September 10, 2013, appellant appealed the judgment on the counterclaim and the summary judgment in favor of appellee Pepper on the malpractice allegations. This is the present appeal and it is assigned Superior Court docket number 2573 EDA 2013. In an order dated November 1, 2013, the Superior Court consolidated the two appeals.

On October 1, 2013, in response to an earlier order, appellant filed a statement under Pa.R.A.P. 1925(b) (“Concise Statement”) in which he sets forth four numbered claims of error in the present appeal at 2573 EDA 2013. Each challenges the granting of summary judgment for appellee Pepper.

Discussion and Conclusion of Law

To properly evaluate appellant’s claims of error, it is necessary to understand the history of appellee Pepper’s representation of appellant in the underlying custody case.

Appellant’s first attorney in the custody case was defendant, attorney Eidelman. Appellant retained attorney Eidelman on March 29, 2007. With that attorney’s assistance, appellant Abeln obtained two agreed interim orders for custody of his son.

On November 16, 2007, appellant first consulted appellee Pepper. (Paragraph 21, complaint.) On the same date, “appellant fired Eidelman as his attorney for incompetence, via email, and asked her to request a continuance of the (custody) trial (scheduled for November 19, 2007) and to contact his new attorney, (appellant) Pepper, prior to [the custody trial].” (Paragraph 24, complaint.) Despite this last statement, appellant did not execute a written retainer agreement with appellee Pepper until December 3, 2007. (Paragraph 32, complaint.)

On November 19, 2007, when the case was called for trial, the court excused defendant Eidelman from further representation at appellant’s request. Appellee Pepper, who was not yet retained and was only first consulted on the Friday before this Monday court date, did not appear in court on November 19. By agreement, the trial was continued to January 22, 2008. Mother, through her attorney, indicated she was prepared on November 19 to proceed to trial, but the court gave appellant the opportunity to secure the services of Pepper for the trial. Appellant, acting pro se, agreed to another interim custody arrangement whereby he and mother would share legal and physical custody of Paul Christopher. (Appellant subsequently sued defendant Eidelman under the present case number alleging she committed malpractice and was responsible for the terms of this order agreed by appellant even though Eidelman had been fired as counsel before this agreed order was entered.)

Appellant Abeln and mother appeared in court on January 22,2008, forthe rescheduled trial. Appellee Pepper represented appellant Abeln and mother also had counsel. Another agreed order was entered. This is the order which appellant attributes to malpractice by appellee.

Under this agreed order, the parents shared legal custody of Paul Christopher. Mother was designated as the primary physical custodian. Appellant was given partial custody rights. The lengthy agreement of the parties was set forth on the record before the Honorable Maria L. Dantos on January 22, 2008. At one point during the presentation of the agreement, there was an interruption when appellant Abeln and appellee Pepper spoke privately. At a later point during the proceedings, appellant, through Pepper, clarified that the parties would be following, in regard to counseling and a parenting coordinator, recommendations found in a written custody evaluation made part of the record that date and prepared by a psychologist, Doctor Phillip Nastasee. Appellee Pepper stated that appellant was noting his disagreement with other significant aspects of Doctor Nastasee’s report. Doctor Nastasee’s report resulted from an agreement of the parties made months earlier that they would pay him to do a custody evaluation of this family. Both parents stated their agreement to the terms of the custody arrangement reached on January 22, 2008, in response to questions by Judge Dantos before she entered the agreed order which resolved all issues for which trial was to be conducted. Appellant perceived the Nastasee report as unfavorable to him. He claims in the present suit that appellee Pepper was professionally negligent in not challenging the Nastasee report at the January 22, 2008, trial. Specifically, appellant contends that Pepper should have hired an opposing psychologist to critique the Nastasee report. Instead, according to appellant, “Pepper recommended to Abeln that they exploit a strategy of delay to allow the [r]eport to become stale and then request a new evaluation.” Appellee Pepper, with appellant’s consent, followed through on this strategy by filing a petition for modification of custody on March 11, 2008, and by filing the “Petition for psychological and mental examination of parties” on September 16, 2008.

In this petition for a second evaluation, appellee Pepper asked that the court direct the parties to undergo a psychological evaluation by Steven E. Samuel, Ph.D., Appellee Pepper filed a memorandum in support of his petition. Pepper represented appellant Abeln at the October 8, 2008, hearing on the petition. Pepper brought Doctor Samuel to the hearing. No one testified at the hearing over which I presided. I granted the petition for the second evaluation based on the arguments of counsel.

On October 16, 2008, mother, acting pro se, filed a motion for reconsideration of the order setting up the evaluation by Doctor Samuel. After argument on this motion, I entered an order dated November 13, 2008, granting reconsideration. In that order, I rescinded the order of October 8, 2008, so that mother and appellant Abeln were no longer compelled to undergo an evaluation by Doctor Samuel. I indicated that the October 8,2008, order “is rescinded without prejudice to plaintiff (appellant) to renew his motion for psychological evaluation at the appropriate time during the trial in this case.”

On January 28, 2009, I entered an order granting appellee Pepper’s petition to withdraw as counsel for appellant Abeln. According to paragraph 3 of the petition, appellant had not paid appellee for services rendered and appellant and appellee had philosophical differences about the handling of the custody case. On February 13, 2009, Attorney Stephen J. Anderer entered an appearance on behalf of appellant.

Mother filed a petition for relocation to Arizona on January 16, 2009. That and appellant’s petition for modification were heard at the trial which was conducted in March and April, 2009, before me. Attorney Anderer represented appellant at that custody trial. Mother was also represented by counsel at the trial. Attorney Anderer, in his trial preparation and at trial, did not renew the request for an evaluation of the parties by Doctor Samuel. On May 18, 2009, after trial, I entered an order mandating that appellant Abeln and mother jointly share legal custody and equally exercise physical custody of their child.

With the above history in mind, I now turn to the four allegations of error raised by appellant in his concise statement.

In the first allegation of error, appellant Abeln argues that I improperly granted summary judgment in favor of Pepper under the Muhammad v. Strassburger, 526 Pa. 541, 587 A.2d 1346 (1991), and McMahon v. Shea, 441 Pa. Super. 304, 657 A.2d 938 (1995) cases. I found that, as a matter of law, summary judgment had to be entered for appellee Pepper because the alleged negligent conduct against Pepper stemmed from the custody order of January 22, 2008, entered with appellant’s agreement without any evidence of coercion or other improper action by Pepper. My decision was correct.

This is appellant’s allegation against appellee Pepper that appellee forced him to reach an agreement embodied in the January 22, 2008, order which cut into appellant’s custody time with his child:

Pepper unfairly pressured Abeln into accepting an unfavorable settlement, of the custody issue that would otherwise have been resolved at trial, by both failing to adequately prepare to effectively advance Abeln’s interests at the trial and by repeatedly advising him that, in the absence of a settlement, the tenor of the (Nastasee) report and the inexperience of the judge virtually guaranteed that Abeln would lose what little physical custody of Paul he and his son enjoyed.

(Paragraph 66(c), complaint.)

As a general rule, a litigant is not permitted to agree to a settlement and subsequently bring a malpractice suit against his attorney based on the terms of the settlement. Muhammad v. Strassburger, 526 Pa. 541, 546, 587 A.2d 1346, 1348 (1991). The Superior Court has held that Muhammad precludes a malpractice action where a settling client merely alleges that settlement resulted from “a deficiency in the lawyer’s exercise of his or her professional judgment.” McMahon v. Shea, 441 Pa. Super. 304, 313, 657 A.2d 938, 942 (1995). Conversely, a malpractice suit stemming from a settlement may proceed where a litigant shows that the settlement resulted from fraud or from the attorney’s failure to correctly explain legal principles or the consequences of the settlement to the litigant. Id.

In the evidence presented through discovery, appellee Pepper, upon review of the Nastasee report, concluded that father would attain a more favorable custody arrangement through settlement than through trial. Instead of directly attacking the Nastasee report, Pepper advised appellant that the better course of action was to reach a custody arrangement with mother at the scheduled trial on January 22, 2008, allow the Nastasee report to lose its effect over time, work on personality issues through therapy, secure a second evaluation of the parties and then attempt to get a better custody arrangement in a subsequent proceeding. Appellant accepted this strategy and then appellant and appellee worked to implement it.

Appellant Abeln now contends that the January 22, 2008, agreed order resulted from Pepper’s flawed strategy of not impeaching the Nastasee report, pursuing the settlement option and then bringing litigation later once a more favorable psychological evaluation was obtained. Appellant does not allege that he entered the January 22, 2008, agreement as a result of fraud or Pepper’s failure to correctly explain to him the pertinent legal principles or the consequences of the agreement. While appellant contends that he was coerced into the agreed order, examination of the evidence developed through discovery reveals that appellant is actually claiming “a deficiency” in Pepper’s “exercise of his professional judgment” in pursuing one litigation strategy over another. As the Superior Court noted in McMahon v. Shea, the Muhammad rule operates to preclude malpractice suits where a litigant claims his unfavorable settlement resulted merely from his lawyer’s exercise of professional judgment. Thus, these malpractice claims asserted by appellant are precluded as a matter of law.

Further, appellant gave his informed consent to the agreement entered on January 22, 2008. The record from the hearing reveals a setting forth of the specifics of the custody agreement. At one point, as the agreement was being set forth, appellant interjected his comment that he felt the transportation provisions for Paul Christopher were too broadly stated and that there was conflict in the transportation provisions. N.T., 1/22/08, p.7. Later in the hearing, appellant responded to a question by the judge that he understood provisions regarding any planned removal of the child from Pennsylvania. N.T., 1/22/08, p.20. Finally, appellant gave his approval to the custody provisions put on the record by the attorneys. N.T., 1/22/08, p.23.

Appellant’s statement in his complaint (paragraph 66(c)) that he was “unfairly pressured” by Pepper to enter into the January 22, 2008, agreement is contrary to appellant’s email to appellee Pepper dated December 20, 2007. In it, appellant stated to Pepper: “If you are successful in getting Zamborsky (mother’s attorney) & Heidi to discuss a custody arrangement, I would consider Heidi having title of primary physical custodian with the following visitation schedule (which father then set forth).” (The December 20, 2007, email is attached to appellee Pepper’s motion for summary judgment as exhibit G. Appellant admitted sending this email in paragraph 20 of his reply to Pepper’s motion for summary judgment filed on September 29, 2011.) Also, in a statement which is part of a document that appellant prepared entitled “self report progress note, dated February 20, 2008,” appellant wrote:

I made the hardest decision of my life on 1/22/08 by offering Heidi the title of primary physical custodian, not because she was deserving of it but because I hoped that by giving her what she craved most, that she would stop the hostile actions and start to cooperate in a civil, responsive manner that is in the best interests of our son.

(The progress note is attached as exhibit S to appellee’s October 24, 2011, “motion to supplement summary judgment record” (supplemental motion). Appellant has confirmed the progress note is authentic. See exhibit 1 to the supplemental motion.

Appellant further demonstrated that the January 22, 2008, agreement was his agreement with his testimony on March 24, 2009, during the custody trial, in the following exchange:

Q: And why did you agree to the order (stipulated order of January 22, 2008)?
A: Because I was very concerned about Nastasee’s report having so many problems with it. I was concerned that I was going to have a worse — I was not going to see my son at all. And I had hoped that if I had given Heidi what she was craving, that the hostility and aggressiveness towards me would end, and that she would enable us to start co-parenting in the best interest of our son. And I had hoped, based on the terms of that agreement, that we would be able to use co-parent counseling and a parenting coordinator to resolve differences and get on better grounds so that in fact we would maximize the amount of time that both of us shared with our son.

N.T., 5/24/09, p.110.

Thus, under the authority oí Muhammad mdMcMahon, I properly entered summary judgment for appellee Pepper.

In his second allegation of error, appellant claims that I ignored his “credible evidence in the record” supporting the malpractice claim so that the granting of summary judgment was not proper. As to the evidence I supposedly ignored, appellant points to “the professional opinion of a qualified legal malpractice expert.” This is a reference to Richard A. Katz, Esquire, who authored an opinion letter dated April 29, 2011. The August 29 letter refers to a March 4, 2010, letter by attorney Katz. This earlier letter does not appear to be part of the record. Appellant also refers to “Pepper’s admissions in deposition” which are not specified in the concise statement. Finally, he refers to appellant’s own testimony that Pepper’s failure to adequately prepare for a custody trial wrongfully prevented him from exercising meaningful discretion” to choose a trial over the settlement of January 22, 2008. There is also no specificity given as to the fashion in which appellee Pepper supposedly failed to adequately prepare for trial although the concise statement, taken as a whole, does make it clear that appellant faults appellee Pepper for not preparing a critique of the Nastasee report.

I have already commented on appellee Pepper’s advice not to attack the Nastasee report. That entire subject falls under the strategy advice provided by Pepper to appellant and accepted by appellant. As I have already explained, as a matter of law, that strategy decision by Pepper cannot be used as a basis for this malpractice claim after it resulted in the agreed order of January 22, 2008. The remainder of these allegations in appellant’s second claim of error are not specific. I do not know to what aspects of the legal malpractice expert’s reports appellant is referring and to what alleged lack of trial preparation appellant is referring beyond the Nastasee issue. Moreover, all of the legal malpractice expert’s opinions and appellant’s preserved issues appear to go back to the Nastasee issue.

In the third claim of error, appellant complains that the court’s erroneous ruling in granting summary judgment in favor if appellee Pepper wrongfully deprived him “of his only viable defense to Pepper’s counterclaim for attorney’s fees.” The counterclaim was heard at an arbitration at which no record was made. However, if the court properly granted summary judgment in favor of Pepper, then there is no substance to this allegation of error and it should be denied.

The final allegation of error reads:

Did the trial court err in finding no negligence in Pepper’s failure to offer testimony of a qualified psychologist, with knowledge of Abeln’s wife’s past performance on certain probative psychological tests, to support Abeln’s motion to have the mental stability of his wife evaluated in order to gain primary physical custody of his child?

A response to this requires a summary of what I have already stated. The psychological evaluation completed by Doctor Nastasee before the January 22, 2008, agreed order resulted from the decision by appellant Abeln and mother to jointly pay for and cooperate in the completion of that report. Second, there was the strategic decision recommended by and then made by Abeln not to have a second psychological report completed before the January 22, 2008, agreed order. Third, appellant Abeln, agreeing with the advice of appellee Pepper, waited a number of months following the agreed order and then filed a motion asking the court for a second psychological evaluation to be conducted by Doctor Samuel. The court initially granted that request and then rescinded the authorization for it against the wishes of both appellant and appellee. Fourth, attorney Anderer, with whom appellant Abeln apparently has no problem in regard to representation, did not resubmit a request for a second psychological evaluation at any point before or during the trial that occurred in March and April of 2009, despite being given the opportunity to request a second psychological evaluation by the court when it rescinded the authorization for the evaluation by Doctor Samuel. The trial in 2009, where no additional psychological evidence was presented, yielded a result that appellant acknowledges was acceptable to him. Thus, there is no factual dispute that appellant Abeln was able to secure a result acceptable to him in terms of custody with his son without any second psychological evaluation.

As the fact-finder and the judge who made the decision at the trial in March and April of 2009, far too much weight is placed by appellant Abeln on the effect that Doctor Nastasee’s report and testimony had at any point. This was perhaps best demonstrated by the result of the trial conducted in March and April, 2009. With these factors in mind, as a matter of law, there can be no merit to the claim that appellee Pepper was negligent for failing to go beyond what he did to secure a second psychological evaluation.

Because the granting of summary judgment in favor of appellee Pepper and against appellant Abeln was proper, this appeal should be denied.


author: WILLIAMSON, J.,

text:
    Martinez v. Uckele

      C.P. of Monroe County,
    No. 4252 CIVIL 2011

      Jennifer R. Sletvold and Gary Brienza, for plaintiff.

      James A. Swetz and Christa A. Solfanelli, for defendants.
    December 9, 2013 —
   WILLIAMSON, J.,

This matter comes before us on amotion for partial summary judgment filed by Jacqueline Martinez (hereafter “plaintiff’) on June 24, 2013. On July 29, 2013, Bernard J. Uckele and Concetta Uckele (hereafter “defendants”) filed a response to plaintiff’s motion for partial summary judgment. In the motion, plaintiff argues that partial summary judgment with respect to liability against defendants should be granted because it has already been judicially determined, by virtue of defendant Bernard J. Uckele’s September 2010 criminal conviction for involuntary manslaughter, that he acted negligently and caused the death of Justin B. Uckele (hereafter “decedent”). Plaintiff contends the criminal conviction of defendant Bernard J. Uckele for involuntary manslaughter conclusively establishes his liability in the instant matter. Further, plaintiff argues that defendant Bernard J. Uckele has already been found guilty of doing “an unlawful act in a reckless or grossly negligent manner,” or “a lawful act in a reckless or grossly negligent manner,” Therefore, plaintiff argues, defendants are collaterally estopped from re-litigating the issue of liability.

Plaintiff, as administratrix of the Estate of Justin B. Uckele, and as mother and legal guardian of Justin B. Uckele Jr., a minor, initiated this action by filing a complaint on May 9, 2011. Plaintiff’s complaint alleges that the decedent died as a result of the unlawful actions of defendants. Specifically, plaintiff’s complaint alleges that decedent died on June 21, 2009 after being fatally shot by his father, defendant Bernard J. Uckele. Plaintiff also alleges that she and the decedent had plans to marry, and at the time of decedent’s death, plaintiff was pregnant with Justin B. Uckele, Jr. Plaintiff alleges the decedent was the father of Justin B. Uckele, Jr. Plaintiff alleges causes of action for wrongful death and survival against defendants.

Defendants filed an answer and new matter on November 4, 2011. Following initial pleadings, this court issued an order and opinion on January 8, 2013 ordering defendants to submit to DNA blood testing to determine the paternity of Justin B. Uckele, Jr. Subsequently, with permission from this court, defendants filed an amended answer and new matter on February 22, 2013. A reply and new matter was filed by plaintiff on February 28, 2013.

Plaintiff filed the instant motion for partial summary judgment on June 24, 2013. Defendants filed a response to plaintiff’s motion for partial summary judgment on July 29, 2013. Oral arguments on the matter were held on November 4, 2013. After review of the parties’ briefs and in consideration of representations made at oral arguments, we are ready to dispose of the motion.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2, where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Tingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant. Elia v. Olszewski, 84 A.2d 1889 (Pa. 1951).

In this case, plaintiff argues there are no genuine issues of material fact with regard to defendants’ liability, and requests that this court grant partial summary judgment in her favor. As stated above, plaintiff asserts that as a result of defendant Bernard J. Uckele’s September 2010 criminal conviction for involuntary manslaughter, defendants are collaterally estopped from re-litigating the issue of liability. In support of this argument, plaintiff cites to three cases in which a criminal conviction was found to preclude a defendant, in a subsequent civil case, from denying the criminal acts. In re Estate of Reinert, 532 A.2d 832 (Pa. Super. 1987), was an Orphan’s Court action filed to recover stolen money. William Bradfield had been convicted previously of the theft in question and was ordered to pay restitution to the estate. Mr. Bradfield appealed a grant of summary judgment to the Estate of Reinert for reimbursement of the stolen money through the Orphan’s Court. On appeal, the Pennsylvania Superior Court concluded that “where, as here, there is a prior criminal conviction which arose from the same set of facts as the present civil action and the finding on those facts is central to the issue in the instant civil action, a summary judgment may be granted.” Id. at 835 (emphasis added).

Plaintiff further cites to Shaffer v. Smith, 648 A.2d 26 (Pa. Super. 1994), a Pennsylvania Superior Court case, in which the defendant was convicted of aggravated assault upon the plaintiff. In a subsequent civil action, the plaintiff moved for partial summary judgment, which was granted, and the defendant appealed. Upon review by the Pennsylvania Supreme Court, the court conclusively stated that “it is well established that a criminal conviction collaterally estops a defendant from denying his acts in a subsequent civil trial.” Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996). Finally, plaintiff draws this court’s attention to a Federal Eastern District of Pennsylvania case, Federal Insurance Co. v. Potamkin, 961 F. Supp. 109, 112 (E.D. Pa. 1997), which found that “once a criminal defendant has been convicted and sentenced, a plaintiff in a civil proceeding may invoke collateral estoppel to preclude the defendant from denying his criminal acts,” (quoting Smith, 673 A.2d at 875).

Although instructive, the case law and arguments asserted by plaintiff are not directly on-point in this matter. It appears to the court that defendants are not attempting to deny the criminal acts which defendant Bernard J. Uckele was found guilty. More precisely, as interpreted by this court, defendants assert that the issue of simple negligence, along with affirmative defenses now available to defendant Bernard J. Uckele in this civil matter have never been adjudicated, nor has any comparative negligence on the part of the decedent been determined. As represented at oral arguments, the issue, at least of comparative negligence, seems to be one of first impression in Pennsylvania — that being whether a criminal defendant in a subsequent civil case has the ability to plead affirmative defenses that were not available during the criminal prosecution.

The first issue is whether the affirmative defense of comparative negligence can be raised in wrongful death and survival actions. Defendants have asserted that Pennsylvania’s comparative negligence law, codified at 42 Pa.C.S.A. § 7102 (a), applies to plaintiff’s complaint count I — wrongful death, and count II — survival. In advocating this position, defendants cite to Vieira v. Rennie, 15 Pa. D. & C.3d 681, 683 (Pa. Com. Pl. 1979). Vieira is a Lackawanna County Court of Common Pleas decision in which Judge Walsh reduced a jury verdict in a survival action by fifty percent as required by the comparative negligence law. Similar to the instant matter, Vieira concerned a wrongful death and survival action filed by the administrator of a minor decedent’s estate. However, Vieira concerned a motor vehicle accident, in which the defendant was the operator of a motor vehicle that struck and killed the minor decedent, who was a pedestrian at the time. The jury in Vieira found the plaintiff and defendant, each fifty percent negligent for the accident. Id. This finding by the jury compelled Judge Walsh to reduce the plaintiff’s recovery by fifty percent, as required by 42 Pa.C.S.A. § 7201(a). Id.

Although this case is factually distinguishable from Vieira, this court recognizes the ability of a defendant to assert the affirmative defense of comparative negligence in a civil case where there were no prior criminal actions regarding the same set of facts. This position regarding civil cases, where there have been no criminal proceedings, is furthered by the Pennsylvania Supreme Court in Allison v. Snelling & Snelling, Inc., 229 A.2d 861 (Pa. 1967). Furthermore, the Commonwealth Court of Pennsylvania has also found that Pennsylvania’s comparative negligence law is an affirmative defense in wrongful death and survival actions. This court must consider whether the defendants can plead a comparative negligence defense in the face of defendant Bernard J. Uckele’s criminal conviction for involuntary manslaughter.

As stated above, this issue — whether a criminal defendant in a subsequent civil case has the ability to plead affirmative defenses that were not set forth during the criminal prosecution — appears to be a matter of first impression in this Commonwealth. The defendants direct this court to look at jurisdictions which have allowed comparative negligence affirmative defenses to be asserted, despite there being a criminal conviction arising from the same facts.

Defendant’s brief cites to Cloud v. Hosack, 2006 WL 1876620 (D. Or. 2006), a United States District Court for the District of Oregon decision. The case concerned a civil action based on injuries sustained by the plaintiff from a gunshot wound inflicted by defendant during an altercation. The defendant was convicted of third-degree assault pursuant to Or.Rev.Stat. §163.165(1)(a). Further, the trial court in the defendant’s criminal trial rejected defendant’s claim of self-defense. In Cloud, Judge Aiken found that Oregon’s comparative negligence law requires a trier of fact to “compare the fault of the claimant with the fault of any party against whom recovery is sought.” Id. at 2 (quoting Or.Rev.Stat. § 31.00(2)).Therefore, the court found that the defendant properly raised concerns of plaintiff’s own fault for the injury sustained that were not at issue in the criminal proceeding. Furthermore, the court held that the assertion of self-defense at the criminal proceeding is dissimilar to the claim of comparative fault. The court stated this is because “self-defense — if proven — can absolve a defendant from criminal liability, while comparative fault assigns civil liability in proportion to fault.” Id. In conclusion, the court denied plaintiff’s motion for summary judgment, allowing defendant to assert the affirmative defense of comparative negligence.

Although not binding, this court finds the decision in Cloud persuasive. This court further takes note that other jurisdictions have also allowed civil defendants to assert a comparative negligence defense, when the civil case stems from the same facts as that of a criminal proceeding. Taking into consideration the arguments set forth by defendants, together with the persuasive examples of other jurisdictions, this court believes the correct course of action in this case is to allow defendants to proceed at this time on the issue of disputed liability when considering any comparative negligence.

In this case, defendants, in their amended answer and new matter to plaintiff’s complaint, have raised potential facts for the affirmative defense of comparative negligence. Defendants’ new matter alleges that the gun held by defendant Bernard J. Uckele discharged without the trigger being pulled when the hammer struck the door or wall when defendant Bernard J. Uckele lost his balance after decedent kicked open a door from the garage to the kitchen. (Defs.’ am. answer and new matter to pl.’s compl. ¶¶ 59-62.) Defendants’ response to plaintiff’s motion for partial summary judgment set forth facts in dispute. We also note discovery is not complete. This court does not believe the allegations raised by defendants are done so to collaterally attack the underlying criminal conviction of defendant Bernard J. Uckele. Rather, this court is compelled to view these allegations as an affirmative defense of comparative negligence, which defendants, as explained above, have the right to assert at this time. Taking this into consideration, this court agrees with the position of defendants that a grant of partial summary judgment is premature at this time, as the case is in the early stages of discovery and further evidence is necessary to sustain the plaintiff’s cause of action and the defendants’ comparative negligence affirmative defense.

Accordingly, viewing the evidence in a light most favorable to the non-moving party, this court finds there are genuine issues of material facts as presented through the pleadings, oral arguments, exhibits and admissions of both plaintiff and defendants. As such, partial summary judgment is not appropriate at this time, and we enter the following order.

ORDER

And now, this 9th day of December, 2013, upon consideration of plaintiff’s motion for partial summary judgment, the same is denied.

      . 18 Pa. C.S.A. § 2504(a).

      . Bernard J. Uckele was found guilty of involuntary manslaughter on September 17,2010.

      . In Allison, the Pennsylvania Supreme Court held that the decedent who was employed as an elevator operator and who fell into an elevator shaft after another employee of defendant had, without authorization, taken the elevator to the fourth floor, was contributorily negligent. Thereby, the court precluded recovery by the plaintiff under wrongful death and survival statutes.

      . See Com., Dept. of Public Welfare for Use of Molek v. Hickey. 582 A.2d 734, 737 (Pa. Commw. Ct. 1990), finding that a child may not recover for the wrongful death of a parent where the deceased parent was responsible for one hundred percent of the causal negligence in the accident resulting in deceased parent’s death.

      . Williams v. Baugh, 154 P.3d373 (Ariz.Ct.App. 2007). An Arizona Court of Appeals case where by the court held that a defense of contributory negligence generally is not recognized as a defense to criminal conduct, and neither a defense of contributory negligence nor comparative fault principles deny an “an essential allegation of the criminal offense of which [the defendant] was adjudicated guilty.” Id. at 377. Further, the court held that the state’s statute prohibiting a defendant convicted in a criminal proceeding from subsequently denying, in any civil proceeding brought by the victim against the criminal defendant, the essential allegations of the criminal offense of which he was adjudicated guilty, did not bar a civil defendant from alleging contributory negligence or seeking a reduction of his percentage of comparative fault.

        Stevenson v. Wright, 733 N.W.2d 559 (Neb. 2007). A Nebraska Supreme Court decision holding that a driver’s county court conviction for a traffic infraction, under a municipal ordinance on careless, reckless, or negligent operation of a vehicle, did not collaterally estop him from denying his liability to motorist in a civil action for damage to motorist’s vehicle. Further, the court held that issues presented in the civil action, such as contributory negligence, were not determined in the traffic infraction proceedings.

        Arnica Mut. Ins. Co. v. Estate of Pecci. 953 A.2d 369 (Me. 2008). A Supreme Judicial Court of Maine case which held that the state’s comparative negligence statute barred a wrongful death action brought by the estate against the surviving spouse, where the surviving spouse would be the exclusive beneficiary of the proceeds from the action, and the surviving spouse had stipulated and admitted his negligence was the sole proximate cause of the accident, and subsequently, decedent’s death.

        Anderson v. Gailey, 555 P.2d 144 (Idaho 1976). An Idaho Supreme Court case where it was held that the most reasonable way to construe the wrongful death statute with the comparative negligence statutes is to continue to read into the wrongful death statute the requirement that the plaintiff’s can recover only, ‘whenever the wrongful act would have entitled the person injured to maintain an action if death had not ensued.’ Thus, the court held, that if the juiy had found that George Gailey negligently caused Richard Anderson’s death and that Richard Anderson also negligently contributed to his death, Anderson’s own negligence would have barred his recovery had he lived if it was as great as or greater than that of Gailey. So also, it would bar his parents’ wrongful death action if it was as great as or greater than Gailey’s.


text:
    Smith-Wille v. Ski Shawne, Inc.

      C.P. of Monroe County,
    No. 375 CIVIL 2006

      Benjamin N. Gialloreto, for plaintiff.

      Hugh M. Emory, for defendants.
    January 6, 2014 —
   WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed by Ski Shawnee Inc., Shawnee Development, Inc., and Shawnee Mountain, Inc. (hereafter “defendants”) on October 4, 2013. Pamela Smith-Wille (hereafter “plaintiff’) filed a reply to defendants’ motion for summary judgment, and a brief in support of plaintiff’s reply on November 15, 2013. In the motion for summary judgment, defendants argue that plaintiff’s accident was the result of the inherent risk of skiing and as such, no liability should be imposed on Shawnee Mountain. More specifically, defendants stated that the ice which plaintiff encountered, causing her to crash into a fence, was an inherent risk of the sport of downhill skiing. Therefore, defendants argue, that plaintiff, an experienced skier, was injured as the result of the inherent risk of downhill skiing.

Plaintiff initiated this action by filing a praecipe to issue writ of summons on January 19, 2006. Defendants filed a rule on plaintiff to file a complaint against defendants within twenty (20) days of the rule on February 6, 2006. Plaintiff then filed the complaint on March 8, 2006. In the complaint, plaintiff asserts a premises liability action against defendants, in that defendants created and knew, or should have known of the existence of a dangerous condition. Plaintiff alleges the dangerous condition to be a metal pole covered by PVC piping, which was erected to hold a vinyl fence on the ski slope. According to plaintiff, said PVC piping had no padding or protection to safeguard the plaintiff when she his the piping while skiing. The icy conditions caused plaintiff to lose control and run into the piping. This caused plaintiff to sustain injuries and damages which are the basis of this action. Plaintiff also argues there should have been a warning as to icy skiing conditions.

Defendants filed an answer and new matter on March 21, 2006. Plaintiff filed an answer to new matter on April 24, 2006. Defendants subsequently filed an answer and new matter for defendants Ski Shawnee, Inc. on June 5, 2006. Plaintiff then filed an answer to new matter on June 15, 2006. Following initial discovery, depositions and pleadings, defendants filed this motion for summary judgment on October 4, 2013. Upon review of the parties’ briefs, and following oral argument, we are now ready to dispose of defendants’ motion.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co., v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary Judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary Judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all wellpled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the non-moving party has adequate knowledge and that the means of information are within the control of the non-moving party. Elia v. Olszewski, 84 A.2d 1889 (Pa. 1951).

The defendants in this case argue that plaintiff’s accident was the result of the inherent risks of downhill skiing, for which no liability can be imposed upon defendants. In their brief in support of summary judgment, defendants state that this case involves one type of assumption of the risk principle — that a person assumes, as a matter of law, risks which are common, frequent and inherent in the activity undertaken by a participant. (Defs.’ Br. in Supp. of Mot. for Sum. J. p. 5).

To support this position, defendants direct this court’s attention to Jones v. Three Rivers Management Corp., 394 A.2d 546 (Pa. 1978), Pennsylvania Supreme Court case where the court held that an operator of baseball park owes no duty to guard against common, frequent, and expected risks of baseball; duty extends only to foreseeable risks not inherent in baseball activity. The defendant also compares this case to a 1999 Monroe County Court of Common Pleas decision by the Honorable Judge Linda Wallach Miller. In Chang v. Camelback Ski Corp., 43 Pa. D. & C.4th 81 (Monroe Cty. 1999), the plaintiff claimed that as he was skiing down the slope, he realized the snow was covered in a layer of ice. The ice then precluded the plaintiff from skiing under control, and he skied off the slope and into a ski lift structure located at the edge of the slope. In preliminary objections, defendant asserted the accident resulted from an inherent risk of skiing, that being icy conditions located along the edge of the trail. In Chang, Judge Miller looked to neighboring states’ legislation similar to Pennsylvania’s “Skiing Responsibility Act,” codified at 42 Pa. C.S.A. § 7102(c), to determine what inherent risks are present in downhill skiing. (Id. at 87). In doing so, Judge Miller held that “all of them (other states’ statutes) include ice or icy conditions as an inherent risk of the sport of downhill skiing.” (Id at 88). As such, Judge Miller determined that ice and icy conditions on a ski slope are part of the inherent risks envisioned by Pennsylvania’s statute. Therefore, Judge Miller found the defendant in Chang could not be liable for the injuries suffered by plaintiff as a result of the accident and granted the relief requested by the defendant.

In arguing against the motion for summary judgment, plaintiff states that the issue at hand is whether she “voluntarily assumed” any risks at the time she was about to ski down the slope in question. Plaintiff asserts there were no warnings of the slope conditions for which plaintiff could then have decided whether or not to proceed in skiing. Plaintiff requests this court to consider that due to lack of a warning, the only option available to her once she noticed the icy conditions was to ski down the icy slope. Plaintiff asserts that there is an issue of material fact as to whether plaintiff’s conduct was voluntary once she was at the top of the slope, saw the ice, became concerned, and was left without any reasonable options other than going down the slope. Plaintiff claims defendants were negligent for failing to provide a warning and a safe alternate route once faced with the icy conditions.

Plaintiff distinguishes this case from those cited by the defendants by arguing that her conduct in skiing down the hill in the icy conditions was not voluntary, and that she could not have assumed the risk of any dangerous conditions on the slopes once there was no way to avoid those conditions, namely the ice. (See generally Pl.’s Br. in Supp. of Reply to Defs.’ Mot. for Summ. J.). Essentially, plaintiff argues to this court that there is a genuine issue of material fact as to whether she could have voluntarily assumed a risk she was unaware of, due to lack of warning, and whether the defendants provided reasonably safe alternatives once plaintiff became aware of the risk.

We recognize the controlling statutory language aptly named the “Skiers Responsibility Act” (hereafter “act”) as codified at 42 Pa. C.S.A. § 7102 (c) — Downhill Skiing. This provision is part of Pennsylvania’s comparative negligence statute. In the act, the Pennsylvania General Assembly recognizes that the sport of downhill skiing contains “inherent risks.” Further, the act goes on to state that the doctrine of voluntaiy assumption of risk as applied to downhill skiing injuries and damages is not modified by subsections (a) and (a.l) of the comparative negligence statute. This court recognizes, as did Judge Miller in Chang v. Camelback Ski Corp., 43 Pa. D. & C.4th, supra, that the general assembly did not define what the “inherent risks” in downhill skiing are. However, this court believes that ice and icy conditions are part of the “inherent risks” envisioned by the general assembly.

In conjunction with the act, Pennsylvania’s appellate courts have addressed the “inherent risk” issue of downhill skiing in several opinions which this court believes to be controlling in the instant matter. In Hughes v. Seven Springs Farm, Inc., 762 A.2d 339 (Pa. 2000), the Pennsylvania Supreme Court considered a case where the plaintiff was injured while skiing after being struck from behind by another skier. After completing a run down the mountain, the plaintiff who was an intermediate skier, was skiing toward the lift at the base of the mountain when she was struck. Plaintiff filed suit against the defendant ski area, alleging negligence. To analyze the case, the court engaged in a two-part inquiry: First, whether the plaintiff was engaged in the sport of downhill skiing at the time of the injury; and second, whether the risk of injury resulted from an “inherent risk” present in the sport of downhill skiing. Id. at 344. In making its determination, the court first found that the sport of downhill skiing,

“encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trial and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.”

Id. at 344. The court went on to hold that the risk of colliding with another skier at the base of a mountain is one of the “’common, frequent and expected’ risks ‘inherent’ in downhill skiing.” Id. Most relevant to the instant matter, the court found that “other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.” Id. This shows recognition by the Supreme Court that snow and ice and risks inherent in skiing.

The court also discussed the “inherent risks” present in downhill skiing in Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174 (Pa. 2010). That case concerned a skier who was injured from falling while attempting to get onto a ski lift. In making its determination of whether falling from a ski lift was an “inherent risk” of the sport of downhill skiing, the court cited its previous decision in Hughes, supra, in doing so, the court reaffirmed that the “no-duty” rule — the principle that “an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity,” applies to the operators of ski resorts. Chepkevich, 2 A.3d at 1186. Therefore, the court found that,

“ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing. Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant — the comparative negligence act is inapplicable — and there can be no recovery based on allegations of negligence.”

Id. The court, in applying the two-part analysis found in Hughes, held that the plaintiff’s cause of action arose out of a general risk of failing from a ski lift, which was an “inherent risk” of skiing. Id. at 1188. The plaintiff was therefore barred from recovering for her injuries.

In 2005, the Pennsylvania Superior Court issued an opinion in Crews v. Seven Springs Mountain Resort, 874 A.2d 100 (Pa. Super. 2005). In that case, the plaintiff brought a negligence action against defendant ski resort for injuries received when he was stuck from behind by a high school student who was snowboarding. At the time of the collision, the high school student was allegedly snowboarding while under the influence of alcohol. In issuing its decision, the Superior Court applied the two-part test from Hughes, supra. In doing so, the court recognized that colliding with another skier while engaged in the sport of downhill skiing is an “inherent risk”. However, the court went on to analyze whether a collision with an underage drinker on a snowboard could be considered an “inherent risk.” In holding that it was not, the court stated that an “inherent risk’ is one that cannot be removed without altering the fundamental nature of skiing. The risk allegedly encountered instantly by appellant is not one inherent to skiing.” Crews, 874 A.2d at 105. (The risk being an under-aged, drinking skier.) In essence, this case distinguishes conditions or risks which a reasonable person would consider to be “inherent” in the sport of downhill skiing from those which are not.

In taking the above statutory and case law into consideration, and applying the legal principles therein, this court finds no genuine issue of material fact. This court believes the arguments raised by plaintiff in her response to defendant’s motion for summary judgment can be properly addressed by applying the two-part analysis set forth in Hughes v. Seven Springs Farm, Inc., 762 A.2d at 344, supra. First, we must determine whether plaintiff was engaged in the sport of downhill skiing when she sustained the injuiy. Through the admissions made in the pleadings, and in the deposition of plaintiff, it is clear to this court that she was engaged in the sport of downhill skiing at the time of her injury. Plaintiff herself testified that she began skiing sometime in the afternoon on the day of the accident. (Pl.’s Dep. 27: 19-23, Dec. 3, 2009.)

We must now determine whether encountering icy conditions while skiing down the beginner trial is one of the “inherent risks” of downhill skiing. Plaintiff argues the voluntariness of her encountering the icy conditions and her not being provided an alternate option to avoid the ice on the beginner slope. The plaintiff further argues she was not adequately warned of the icy conditions nor of the pole and fencing which she ran into when the accident occurred. In opposition, defendants argue that ice and icy conditions are a part of the “inherent risks” present in the sport of downhill skiing, and that they should not be held liable for the accident regardless of a lack of warning of safe alternate access of the slopes.

As quoted above, the Pennsylvania Supreme Court has stated that ice is indeed an “inherent risk” in the sport of downhill skiing. See Hughes, 762 A.2d at 344. Moreover, the Pennsylvania Superior Court has defined an “inherent risk” as one which cannot be removed without altering the fundamental nature of skiing. See Crews, 874 A.2d at 105. Logically, then, this court must also find that ice and icy conditions are an “inherent risk” of downhill skiing. Further, the arguments set forth by plaintiff are not persuasive. Plaintiff argues of a duty to warn of the icy conditions and of the fencing and poles the plaintiff hit. Consistent with Hughes, supra, the owner or operator of the ski area has no duty to protect the user from hazards inherent in the activity. Since ice is an inherent risk of skiing, there is no duty to warn of icy conditions. We also recognize from a practical standpoint that it would be virtually impossible for a ski area to warn of icy conditions wherever and wherever they may exist.

There also is no duty to warn of the fencing and poles holding the fencing. The fence was located at the edge of the ski trial to prevent skiers from skiing off the trial into woods and/or the chairlift poles. The fencing was made of mesh and was secured to the ground by poles. The fencing also marked the edge of the trial and was notice itself for skiers to stay away from it. The edge of the ski slope, and a support pole for a lift are inherent risks of skiing. Striking a protective fence designating and protecting skiers from the edge of the trial and the chairlift pole is an inherent risk of skiing as well. Therefore, no warning needs to be given.

Plaintiff next argues that the defendants did not provide an alternate route to traverse down the hill once she noticed the icy conditions. However, as with warnings, there is no duty to provide an alternate route. Plaintiff maintains herself as an “intermediate skier.” (Pl.’s dep. 34-35.) Being an intermediate skier, plaintiff knew, or reasonably should have known of several other methods in which to reach the bottom of the hill once she noticed the icy conditions. For example, plaintiff could have taken the lift back to the bottom of the hill; or the plaintiff could have traversed down the hill without her skis; the plaintiff could have traversed her way back up the hill without her skis and taken the lift to the bottom; the plaintiff could have stopped skiing and waited for the ski patrol to assist her down the mountain; or the plaintiff could have traversed sideways down the hill with her skis still on. These are all logical methods that an intermediate skier could have employed to safely traverse down the hill once icy conditions were noticed. Because none of these options were used, and plaintiff encountered the ice, which is an “inherent risk” of downhill skiing, no liability may be imposed upon defendants in this case.

Furthermore, consistent with Hughes, supra, the defendants are under no duty to protect a user from any hazards inherent in the activity. Since the ice was an inherent risk, the defendants are under no duty to provide a safe alternate access.

Accordingly, viewing the evidence in a light most favorable to the non-moving party, this court finds there are no genuine issues of material facts as presented through the pleadings, depositions, oral arguments, exhibits and admissions of both plaintiff and defendants. As such, summary judgment is appropriate at this time, and we enter the following order.

ORDER

And now, this 6th day of January, 2014, upon consideration of defendants’ motion for summary judgment, the same is granted. Plaintiff’s case is dismissed.

      . Defendant begins by stating it is generally recognized that there are two types of assumption of the risk. One is voluntary assumption of the risk. Defendant argues this type of assumption of the risk arises when, for example, a skier acknowledges an awareness of the risk which caused his or her injury. (Defs.’ Br. in Supp. of Mot. for Sum. J. p. 4). Defendant cites to Smith v. Seven Springs Farm, Inc., 716 E.2d 1002 (3d Cir. 1983), in which the plaintiff collided with a pole located in the middle of a ski trial. In that matter, the plaintiff testified that prior to taking the run in which the accident happened, he knew of the existence of the pole and the other conditions of the slope. On this basis, the court held that the plaintiff voluntarily assumed the risk of injury.

      . 42 Pa. C.S.A. § 7102-Comparative Negligence. § (c) Downhill skiing. — (1) The general assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing. (2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and(a.1).

      . Judge Miller reasoned that if the court were to “find that plaintiff pled a viable cause of action in this cause under a theory that defendant was negligent in not maintaining a perfectly groomed downhill ski slope with no ice or other conditions usually found on ski slopes...what would happen to one of the most popular winter sports in America?” Chang at 88 (internal citations omitted).