author: HERRON, J.,

text:
    Parsky v. First Union Corp.

      Allen D. Black, for plaintiffs.
    C. Clark Hodgson, for defendant.
    May 8, 2001
   HERRON, J.,

-This opinion addresses the motion of plaintiffs Robert Parsky and Ann Roantree to certify a class of investors who allegedly incurred substantial tax liabilities due to defendant First Union Corporation’s conversion of nine common trust funds. According to the plaintiffs, it is not so much the conversion of the common trust funds that led to the high taxable gains for the plaintiffs, but rather the sale of stock done in anticipation of the funds’ conversion that did so.

Even First Union Corporation appears to concede that those who invested in the same common trust fund as the plaintiffs may be certified as a class of some kind. This is because all investors in the plaintiffs’ fund owned shares of that fund, which in turn owned shares of stock. Thus, a sale of stock made in anticipation of the conversion described infra impacted all investors in that fund proportionately.

Because the conversion supposedly impacted investors in trust funds other than the plaintiffs’ own, however, the plaintiffs seek certification of a class that includes investors in an additional eight funds. First Union Corporation, in contrast, seeks to whittle down the size of the class by questioning the propriety of including investors in all nine common trust funds. At this stage, however, First Union’s concerns are without merit, and the court has certified the nine-fund class as proposed by the plaintiffs.

FINDINGS OF FACT

(1) First Union Corporation is a North Carolina corporation that regularly does business in Pennsylvania and maintains a place of business at 123 South Broad Street, Philadelphia, Pennsylvania. Answer at ¶3.

(2) Plaintiffs Robert Parsky and Ann Roantree are individuals residing at 348 South Fourth Street, Philadelphia, Pennsylvania. Complaint at^.

(3) Through an individual trust managed by CoreStates Financial Corporation, plaintiffs owned shares in the CoreStates Growth & Income Equity Trust. Answer at ¶7-9.

(4) First Union acquired Signet Banking Corporation in December 1997 and CoreStates in April 1998. Answer at ¶3. Through these acquisitions, First Union became the trustee of Signet’s and CoreStates’ 33 common trust funds (collectively, acquired funds), as well as the underlying trusts whose assets were invested in the common trust funds (collectively, underlying trusts). Id.

(5) There were two types of investors in each of the acquired funds: (1) persons for whom the relevant trustee had discretionary investment authority (discretionary investors); and (2) persons from whom the trustee required investment authorization (nondiscretionary investors). Deposition of Michael S. Spangler at 49-50.

(6) At some point prior to December 1998, First Union decided to consolidate the acquired funds with its own Evergreen family of mutual funds through the following process:

“(a) Each of the acquired funds would be matched with a specific Evergreen fund with similar investment policies, styles and investment goals;
“(b) The assets of the acquired fund would be transferred to the corresponding Evergreen fund in exchange for shares of the Evergreen fund;
“(c) The acquired fund would distribute shares of the Evergreen fund to acquired fund investors in exchange for the outstanding shares of the acquired fund; and
“(d) The acquired fund would be terminated.” Spangler Deposition at 6-7.

(7) Although First Union has asserted that the conversion was in its customers’ best interests, the plaintiffs allege that First Union’s motivation was “to streamline operations, reduce costs, increase fee income, and grow the Evergreen mutual funds.” Plaintiffs’ memorandum at 5.

(8) In December 1998, Michael S. Spangler was named project manager for the conversion, which was known as “Project U2.” Spangler deposition at 6. By January 1999, Spangler and his team had identified 28 acquired funds ripe for conversion, as well as matching Evergreen funds into which their assets could be transferred. Id. at 8, 40.

(9) In Project U2 meetings over the next several months, Spangler and his team resolved that the 14 fixed income common trust funds would be converted on June 25, 1999 and that 13 of the equity common tmst funds would be converted on July 9, 1999. Id. at 45-46, 60.

(10) Preparations for carrying out Project U2 were broken down into two parts: (1) communications about Project U2 with First Union customers and (2) preparing for the conversion itself. Spangler deposition at 47. The plaintiffs assert that Project U2 was a singular, unified project and that actions were taken on a project-wide basis, as evidenced by the following:

• Similar form letters were sent to investors in all of the Project U2 funds. Id. at 51-52;
• The letters sent to Project U2 funds investors who are members of the class, as proposed by the plaintiffs, assured recipients that converting the funds would not result in federal income tax liability. Plaintiffs’ memorandum exhibit B;
• Disclosure statements sent to Project U2 funds investors were identical. Spangler deposition at 57-59;
• For each Project U2 fund, a monthly “pro forma” portfolio holding analysis of the prospective combined post-conversion mutual funds was prepared. Id. at 58;
• Planning and scheduling for all of the Project U2 funds was done collectively. Id.;
• Pricing policies and tax ramifications were reviewed for all of the Project U2 funds. Id.\
• Project U2 meetings applied to all of the Project U2 funds. Id. at 46; and
• All of the equity funds were converted on June 25, 1999, and all of the fixed income funds were converted on July 9. Id. at 60.

(11) While including the same promise of a tax-free conversion, the letters invited slightly different responses:

• The initial letters sent to nondiscretionary investors, as well as to Delaware and nondiscretionary non-charitable New York investors warned that failure to authorize the conversion could result in federal income tax liabilities and requested approval for the conversion by the return of an authorization form. Motion exhibit. B at letters B, G, K. The follow-up letter sent to nondiscretionary and Delaware investors renewed First Union’s conversion offer and stated that if no response was received by June 15,1999, “we will assume that you have authorized this change and proceed to convert the common trust funds held in your account into Evergreen mutual funds.” Id. at letters C, H.
• The letters sent to New Jersey discretionary investors stated that it would convert their investments if First Union did not receive written objections within 30 days. Id. at letter I.
• The letters sent to discretionary investors and to nondiscretionary noncharitable New York investors did not request approval for the conversion. Id. at letters A, K.

All class members who received authorization forms received identical forms. Spangler deposition at 57-59.

(12) The plaintiffs received the letter sent to nondiscretionary investors and allegedly completed and returned the requisite authorization forms on May 18, 1999. Complaint at ¶¶19, 20a.

(13) First Union intended for the conversion to be a mechanical, tax-free process because it would meet the requirements of Internal Revenue Code §584(h). Spangler deposition at 10. According to First Union, one of the section 584(h) preconditions for a tax-free conversion is that “substantially all,” i.e., more than 90 percent, of the assets of the common trust fund to be terminated must be transferred to the new fund. Id.

(14) To induce the manager of each relevant Evergreen fund to accept the requisite 90 percent of the corresponding Project U2 fund assets, each Evergreen fund manager was told that any securities held by the Project U2 fund “that the participating Evergreen fund portfolio manager does not wish to receive will be disposed of prior to conversion.” Plaintiffs’ memorandum exhibit C.

(15) Beginning in December 1998, the plaintiffs assert that the equity funds began to incur unusually large taxable capital gains. Plaintiffs’ memorandum at 8. The gains allegedly continued through June 1999 and, in some cases, intensified in the weeks before the conversions took place on July 9, 1999. Id.

(16) In addition, the plaintiffs claim that much of the gains in this period were short-term in nature, in contrast to past years in which little or no short-term capital gains had been incurred. Plaintiffs’ memorandum at 8-9.

(17) The plaintiffs contend that, for all but one of the equity funds, the gains incurred by investors in the first 190 days of 1999 was between two and four times greater than the taxable gains incurred in an average 190-day period in prior years. Plaintiffs’ memorandum at 8.

(18) Making matters worse, First Union allegedly did not inform investors of the gains until it sent out tax information in January or February 2000, after the close of the calendar year precluded investors from engaging in tax planning to offset or to prepare for the gains. Plaintiffs’ memorandum at 9.

(19) The plaintiffs allege that they themselves incurred a total of $107,734.48 in gains in the three-month period surrounding the conversion, including at least $65,000 in short term capital gains. Complaint at ¶24.

(20) The conversion of the equity funds took place on July 9, 1999 as planned. Defendant’s memorandum at 6. Because more than 90 percent of the equity funds’ assets were exchanged, the conversion itself complied with section 584(h) and, in isolation, was free of tax consequences. Id. at 15.

(21) According to the plaintiffs, however, the gains resulted from sales made at the direction of the Evergreen funds managers, who ordered the sales because the securities in the Project U2 funds were not sufficiently similar to the securities in the Evergreen funds or were not to their liking. Plaintiffs’ memorandum at 9.

(22) On the basis of this allegation, the plaintiffs intend to show at trial that the gains and resulting sizeable tax bills were caused by securities sales that were a direct result and were done in anticipation of the conversion. Plaintiffs’ memorandum at 9.

(23) In the complaint, the plaintiffs assert two causes of action: a breach of contract claim, based on the letters’ promise of a tax-free conversion; and a breach of fiduciary duty claim, based on First Union’s alleged misconduct. Complaint at ¶¶35-58.

(24) In the motion, the plaintiffs seek certification of the following class:

“[A]ll persons (including, but not limited to, individuals, proprietorships, partnerships, corporations, trusts and other business entities) who incurred tax liability by reason of capital gains from December 1998 through December 1999 on any investment held in any Core-States or Signet Bank common trust fund that was converted by First Union into shares of an Evergreen mutual fund on July 9, 1999.” Plaintiffs’ memorandum at 10.

(25) The Project U2 funds that meet the requirements of the last phrase of the class description are the Core-States Growth & Income Equity Trust, the CoreStates Growth Equity Trust, the CoreStates Charitable Equity Trust, the CoreStates Value Equity Trust, the CoreStates Union County Equity Trust, The CoreStates Balanced Trust, the Signet Investors Equity A Fund, the Signet Investors Equity B Fund and the Signet Capital Growth Fund. Plaintiffs’ memorandum at 10.

DISCUSSION

The purpose behind allowing class action suits is to provide a means “by which the claims of many individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 397, 676 A.2d 1237, 1239 (1996) (citing Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 231, 348 A.2d 734, 737 (1975)). See also, Lilian v. Commonwealth, 467 Pa. 15, 21, 354 A.2d 250, 253 (1976) (“[t]he class action in Pennsylvania is a procedural device designed to promote efficiency and fairness in the handling of large numbers of similar claims”). For a suit to proceed as class action, Rule 1702 requires that five criteria be met:

“(1) the class is so numerous that joinder of all members is impracticable;
“(2) there are questions of law or common fact common to the class;
“(3) the claim or defenses of the representative parties are typical of the claims or defenses of the class;
“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
“(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.” Rule 1702.

In contrast to Federal Rule of Civil Procedure 23, which governs class action suits brought in federal court, in Rule 1702 “does not require that the class action method be ‘superior’ to alternative modes of suit.” Weinberg v. Sun Co. Inc., 740 A.2d 1152, 1163 (Pa. Super. 1999).

The burden of proving each of these elements is initially on the moving party, although this burden “is not heavy and is thus consistent with the policy that ‘decisions in favor of maintaining a class action should be liberally made.’ ” Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985) (citing Bell v. Beneficial Consumer Discount Co., 241 Pa. Super. 192, 205, 360 A.2d 681, 688 (1976)). Once the moving party has established that each of the elements is satisfied, “the class opponent shoulders the burden, which has shifted, of coming forward with contrary evidence challenging the prima facie case.” D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 449-50, 500 A.2d 1137, 1141 (1985).

I. Numerosity

The numerosity requirement for maintaining a class action is not determined by applying a specific formula:

“Whether the number is so large as to make joinder impracticable is dependent not upon any arbitrary limit, but rather upon the circumstances surrounding [each] case. ... In determining numerosity, the court should examine whether the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain on the energies and resources of the litigants. . . . The class representative need not plead or prove the number of class members so long as she is able to define the class with some precision and affords the court with sufficient indicia that more members exist than it would be practicable to join.” Janicik v. Prudential Insurance Co., 305 Pa. Super. 120, 131-32, 451 A.2d 451, 456 (1982). (citations and quotation marks omitted)

The parties have provided the following breakdown for the number of investors in each certification fund as of June 10, 1999, approximately one month before the conversion:

CoreStates Growth Equity Trust 1,707
CoreStates Charitable Equity Trust 444
CoreStates Growth & Income Equity Trust 3,860 Signet Investors Equity A 192
Signet Investors Equity B 45
Signet Capital Growth 3 6
CoreStates Value Equity Trust 1,360
CoreStates Union County Equity Trust 17
Corestates Balanced Trust 485
Total 8,146

Even if the class encompasses only a fraction of these investors, the sheer number of potential claims would impose a substantial burden on the judicial system. Thus, the class satisfies the numerosity requirement.

II. Commonality

A plaintiff generally satisfies its burden of showing commonality where “the class members’ legal grievances arise out of the ‘same practice or course of conduct’ on the part of the class opponent.” Foust v. SEPTA, 756 A.2d 112, 118 (Pa. Commw. 2000) (citing Janicik, 305 Pa. Super. at 133, 451 A.2d at 457). See also, D’Amelio, 347 Pa. Super. at 452, 500 A.2d at 1142 (“[wjhile the existence of individual questions is not necessarily fatal, it is essential that there be a predominance of common issues shared by all class members which can be justly resolved in a single proceeding”); Allegheny County Housing Authority v. Berry, 338 Pa. Super. 338, 342,487 A.2d 995, 997 (1985) (“[t]he common question of fact means precisely that the facts must be substantially the same so that proof as to one claimant would be proof as to all”). In examining the commonality of the class’ claims, a court should focus on the cause, and not the amount, of the alleged damages. Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992) (“[ojnce a common source of liability has been clearly identified, varying amounts of damages among the plaintiffs will not preclude class certification”), (emphasis in original)

As highlighted by the plaintiffs, Pennsylvania courts have found sufficient commonality and have certified classes where a plaintiff asserts breach of contract claims. See e.g., Sharkus v. Blue Cross of Greater Philadelphia, 494 Pa. 336, 431 A.2d 883 (1981) (certifying breach of contract class action). This is especially true where the contract in question is a form contract, although “[cjlass actions may be maintained even when the claims of members of the class are based on different contracts so long as the relevant contractual provisions raise common questions of law and fact and do not differ materially.” Janicik, 305 Pa. Super. at 133, 451 A.2d at 457. (quotation marks omitted) Similarly, courts have certified classes asserting breach of fiduciary duty claims. See e.g., Buchanan v. Century Federal Savings and Loan Association, 374 Pa. Super. 1, 5, 542 A.2d 117, 119 (1988) (certifying class asserting claims for breach of fiduciary duty and breach of contract); O’Neill v. Sovereign Bank, no. 9708-0525, 1998 WL 1543498 (C.P. Phila. Dec. 15, 1998) (certifying class action for breach of contract and breach of fiduciary duty claims).

In this case, the plaintiffs contend that they have satisfied the commonality requirement. First, they point to paragraph 31 of the complaint, which lists 22 allegedly common questions of law and fact, including:

• whether First Union was the trustee of the certification funds;
• whether, as trustee, First Union owed fiduciary duties to members of the class, including a duty of loyalty, a duty of candor, a duty of fair dealing, a duty to avoid self-dealing, an affirmative duty to furnish information and disclose all material facts, and a duty to administer the certification funds solely in the beneficiaries’ interests, rather than in First Union’s own interest;
• whether First Union breached its fiduciary duties to members of the class by failing to furnish information and failing to disclose all the material facts involving the conversion;
• whether First Union breached its fiduciary duties to members of the class by terminating the acquired funds in order to serve its own interests;
• whether First Union breached its fiduciary duties to members of the class by structuring the conversion in such a way that members of the class suffered significant tax consequences in the form of the gains;
• whether First Union breached its fiduciary duties to members of the class by putting its own interests ahead of the class members’ interests in avoiding or deferring tax liability and receiving complete and accurate information about the management of their investments;
• whether First Union’s conduct constituted self-dealing;
• whether there is a causal connection between First Union’s breach of fiduciary duties and the tax liabilities suffered by members of the class;
• whether First Union is liable to members of the class for the losses they suffered due to First Union’s breach of fiduciary duties;
• the appropriate measure of damages for First Union’s breach of fiduciary duties;
• whether the letters constituted an offer of a contract to convert class members’ investments to shares of the Evergreen funds without class members’ or their accounts incurring any federal income tax;
• whether class members, by filling out and returning authorization forms, or by not objecting to the conversions, thereby accepted First Union’s offer;
• whether the terms of the contract were sufficiently definite to be enforceable;
• whether class members’ performance and their willingness to permit First Union to convert their investments into shares of the Evergreen funds, constituted consideration;
• whether First Union breached its contracts with members of the class by structuring the conversion in such a way that members of the class incurred substantial federal income tax liabilities in the form of gains;
• whether there is a causal connection between First Union’s breach of contract and the federal income tax liability incurred by members of the class; and
• the appropriate measure of damages for First Union’s breach of contract.

The plaintiffs also cite the uniform and combined operations of Project U2, as well as First Union’s alleged common defense that its conduct did not constitute a breach of contract or its fiduciary duty. In addition, the instruments governing the certification funds have similar or identical provisions addressing governing law.

First Union essentially raises three arguments to counter the points raised by the plaintiffs. First, they claim, each of the underlying trusts is governed by a different document with different legal ramifications. In addition, First Union alleges that, because each of the certification funds was managed independently, a trade resulting in gains in one fund had no effect on investors in other funds. Last, in the majority of the underlying trusts, First Union had discretionary power to invest as it wished, removing the need for consent and the basis for a breach of contract claim. None of these arguments is persuasive.

First Union initially asserts that the documents governing each underlying trust differ, with different implications as to the underlying trust beneficiary’s right to bring a cause of action. Because each underlying trust was created individually, “[i]f plaintiffs’ proposed class were to be certified as requested, factual and legal issues regarding the literally thousands of different trust documents at issue will abound.” First Union’s memorandum at 15.

In contrast to First Union’s assertions, however, it appears that any differences in the underlying trusts and their governing documents are minor and irrelevant. In class action cases addressing common trust fund claims, courts have not found that differences in underlying trust documents prevent plaintiffs from satisfying the commonality requirement. See e.g., Meyer v. Citizens & S. Nat’l Bank, 106 F.R.D. 356 (M.D. Ga. 1985); Bank One Indianapolis N.A. v. Norton, 557 N.E.2d 1038 (Ind. Ct. App. 1990); First Ala. Bank v. Martin, 425 So.2d 415 (Ala. 1982). Moreover, First Union has not pointed to any specific, significant difference in any of the underlying trust documents, nor has it cited a single case where a court has refused certification of a common trust fund class based on underlying trust instrument differences. Because the claims for breach of contract and breach of fiduciary duty are independent of the language of the underlying trusts, any differences therein, to the extent that they exist, do not prevent certification of the class.

Similarly, First Union’s contention that satisfying the causation element will force the plaintiffs to show how each transaction was done in anticipation of the conversion is unfounded. The plaintiffs intend to show that the individual securities transactions should not be examined individually, but rather should be treated as a group. This is because, “once the final decision to convert was made, virtually everything that happened in the common trust funds was related to, and done in anticipation of, the conversion.” Plaintiffs’ reply at 30. In addition, to the extent that First Union’s argument has any validity, it goes to the merits of the plaintiffs’ case and cannot be considered by the court at this time. See Pa.R.C.P. 1707, expl. note — 1977 (“the merits of the action and the right of the plaintiff to recover are to be excluded from consideration” when considering a motion for certification). As a result, any questions of causation or the necessity of a transaction-by-transaction analysis do not preclude certification of the class.

First Union is correct in contending that the differences between the discretionary and nondiscretionary investors have the potential to create defenses particular to the discretionary investors. Even if this occurs, however, discretionary and nondiscretionary investors still will have identical breach of fiduciary duty claims. Moreover, the court will have the power to remedy any complications by establishing subclasses for discretionary and nondiscretionary investors in accordance with Rule 1710(c), which allows a court to divide a class into subclasses. Cf. Janicik, 305 Pa. Super. at 133, 451 A.2d at 456 (“[i]f later refinement of the issues reveals that seemingly similar contractual provisions merit differing interpretations, the court may create appropriate subclasses”). As a result, the plaintiffs have satisfied the commonality requirement for establishing a class action.

III. Typicality

As a third step in the certification test, a class action plaintiff must show that the class action parties’ claims and defenses are typical of the entire class. The purpose behind this requirement “is to determine whether the class representatives’ overall position on the common issues is sufficiently aligned with that of the absent class members, to ensure that the pursuit of their interests will advance those of the proposed class members.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 404, 676 A.2d 1237, 1242 (1996). The existence of “factual differences with regard to each member of the class does not render the named parties’ claims atypical of the class as a whole.” Cribb v. United Health Clubs Inc., 336 Pa. Super. 479, 484, 485 A.2d 1182, 1185 (1984) (citing Ablin Inc. v. Bell Telephone of Pa., 291 Pa. Super. 40, 435 A.2d 208 (1981)).

To support their assertion that their claims are typical of the entire class, the plaintiffs point to the following:

• The plaintiffs invested money in one of the certification funds and were beneficiaries of a trust of which First Union was the trustee. Complaint at ¶¶4, 9;
• The funds in which the plaintiffs had invested were subject to the conversion, which First Union said would be tax-free. Id. at ¶¶16, 19, 21;
• First Union terminated the fund in which the plaintiffs had invested and converted their investments into Evergreen fund shares, causing the plaintiffs to incur substantial federal income tax liability. Id. at ¶¶16, 24;
• The plaintiffs contend that First Union breached its fiduciary duty to them and its contract with them by terminating the trusts and carrying out the conversion in a way that led to their substantial federal income tax liability. Id. at ¶¶26, 28;
• The plaintiffs seek money damages as a result of First Union’s conduct. Id. at ¶¶49, 58;
• There are no conflicts between the interests of the plaintiffs and those of the class, and there are no distinct defenses that the plaintiffs will raise. Plaintiffs’ memorandum at 17; and
• Any differences in the forms of the fund in which the plaintiffs invested and the other certification funds are immaterial. Id.

First Union disputes the plaintiffs’ claims of typicality. Specifically, First Union returns to the argument that the plaintiffs will be required to show that each trade that contributed to the gains was made in anticipation of the conversion. Because trades vary across the certification funds, it asserts, the plaintiffs’ claims are not typical, and the plaintiffs will have little incentive to pursue the process of addressing trades in the eight certification funds in which they did not own shares. In addition, because the discretionary investors may not have breach of contract claims, First Union contends that the plaintiffs advancement of those claims will come at the expense of the breach of fiduciary claims and, potentially, the discretionary investors.

The plaintiffs’ claims are sufficiently typical to proceed. By arguing that the letters constituted a unilateral contract, the plaintiffs will be advancing the interests of the investors in all of the certification funds. Cf. Janicik, 305 Pa. Super. at 134, 451 A.2d at 457-58 (where the plaintiffs put forth an interpretation of a contract affording greater benefits, their self-interest was “squarely aligned with that of the absent members of the class of beneficiaries”). Additionally, the fact that the plaintiffs would have both a breach of contract and a breach of fiduciary duty claim does not undermine their alignment of interests with the discretionary investors, who might be limited solely to a breach of fiduciary duty claim. See Janicik, 305 Pa. Super. at 135, 451 A.2d at 458 (a plaintiff’s possible claim based on an oral contract “does not dilute her interest in pursuing a favorable interpretation of the written contract on behalf of herself and the class”). Thus, the plaintiffs’ claims are typical of those of the entire class.

IV. Fair and Adequate Representation

When reviewing whether a class action plaintiff will fairly and adequately represent the class’ interests, a court must consider, among other matters, the criteria set forth in Pa.R.C.P. 1709:

“(1) whether the attorney for the representative parties will adequately represent the interests of the class,
“(2) whether the representative parties have a conflict of interest in the maintenance of the class action, and
“(3) whether the representative parties have or can acquire adequate financial resources to assure that the interests of the class will not be harmed.” See also, Haft v. United States Steel Corp., 305 Pa. Super. 109, 117, 451 A.2d 445, 449 (1982) (where plaintiff demonstrated his willingness to pursue the litigation and his considerable knowledge of the underlying facts and circumstances, he was an appropriate class representative).

It is generally presumed that no conflict of interest exists and that the plaintiffs’ attorney is adequate. Janicik, 305 Pa. Super. at 136-37, 415 A.2d at 458-59.

As demonstrated by the credentials attached to the motion, the plaintiffs’ attorneys are capable of representing the interests of the class. See plaintiffs’ memorandum exhibit E. In addition, the motion asserts that there are no conflicts of interest and that the plaintiffs have adequate financial resources. Motion at 21. Thus, the plaintiffs have met the requirement of showing they will be fair and adequate representatives of the class.

V. Fair and Efficient Method

To determine if a class action would constitute a fair and efficient method of resolving the issues in dispute, a court must look for the following criteria:

“(1) whether common questions of law or fact predominate over any question affecting only individual members;
“(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
“(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
“(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
“(ii) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
“(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
“(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
“(6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions;
“(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.” Rule 1708.

1. Predomination of Common Questions of Law

The issues regarding the predomination of common questions of law have been discussed supra.

2. Management Difficulties

While a court must consider the potential difficulties in managing the class action, any such difficulties generally are not accorded much weight:

“Problems of administration alone . . . ordinarily should not justify the denial of an otherwise appropriate class action, for to do so would contradict the policies underlying this device. Yaffe v. Powers, 454 F.2d 1362, 1365 (1st Cir. 1972). Accord, explanatory note to Pa.R.C.P. 1708 (manageability criterion should not be employed as an ‘escape hatch’ to defeat otherwise proper class action); Manual for Complex Litigation, §1.43 (1981). Rather, the court should rely on the ingenuity and aid of counsel and upon its plenary authority to control the action to solve whatever management problems the litigation may bring. Buchanan v. Brentwood Federal Savings & Loan Ass’n, 457 Pa. 135, 161, 320 A.2d 117, 131 (1974); In re Antibiotic Antitrust Actions, 333 F. Supp. 278, 282-83 (S.D.N.Y. 1971); Newberg, Newberg on Class Actions, §2100.” Janicik, 305 Pa. Super. at 142, 451 A.2d at 462.

In the instant matter, the parties have “detailed records of the names, addresses and account status and activity for each class member.” Plaintiffs’ memorandum at 26. In addition, the names and addresses of investors are easily ascertainable from First Union’s records. Spangler’s deposition at 67-68. As a result, it does not appear that there are any abnormal issues of class manageability.

First Union asserts that the certification of a national class, as proposed by the plaintiff would involve complex choice of laws issues and would complicate the opt-in/opt-out conditions in Rule 1711(b). As highlighted by the plaintiffs, however, five of the certification funds, covering 96 percent of the class members, were expressly governed by Pennsylvania law. Plaintiffs’ reply at exhibit I section 13.6; id. at exhibit J section 13.6; id. at exhibit K section 13.6; id. at exhibit L; id. at section 20. In addition, First Union has not shown that any law other than Pennsylvania and New Jersey would apply or that any foreign law would be different from that of Pennsylvania. Thus, First Union’s fears of unmanageability are unfounded.

3. Risks of Separate Actions

In considering the effect of separate actions, a court should not limit its review to questions of issue and claim preclusion:

“The precedential effect of a decision, even if incorrect, may have a chilling effect on the assertion of similar claims, and, combined with the expiring of statutes of limitation, may often “substantially impair or impede” potential litigants’ ability to protect their interests. Moreover, as with the related criteria concerning the complexity and expenses of litigation, the court may consider the parties’ circumstances and respective ability to pursue separate actions.” Janicik, 305 Pa. Super. at 143, 415 A.2d at 462. See also, Cambanis, 348 Pa. Super. at 54, 501 A.2d at 642 (“there are risks of inconsistent adjudications where several trial courts may be faced with seemingly identical cases and the resolution of one case may have a chilling effect on others”).

Here, the risk of inconsistent decisions is high. If the class as a whole is not certified, the standard used to determine the cause of the gains at one trial could differ substantially from that used at a different trial. In addition, rulings against a plaintiff in one case could serve as an impediment and a deterrent to other plaintiffs who invested in the same fund. This militates strongly in favor of certifying a class here.

4. Prior Litigation

The plaintiffs state that they are not aware of any other litigation involving the issues in this matter. Plaintiffs’ memorandum at 27.

5. Propriety of Forum

The Philadelphia Court of Common Pleas Trial Division appears to be an appropriate forum for this matter. The plaintiffs are Philadelphia residents, and six funds, comprising the investments of 97 percent of the class members, were managed by CoreStates, which was based in Philadelphia. Plaintiffs’ memorandum at 28. The plaintiffs also assert that the vast majority of class members are Pennsylvania residents. Id.

First Union returns to the argument it made in its preliminary objections regarding the trial division’s lack of jurisdiction. The court has previously discussed this issue in detail and has rejected this argument repeatedly. See Parsky v. First Union Corp., February 2000, no. 771 (C.P. Phil a. June 29, 2000) (Herron, J.); Parsky v. First Union Corp., February 2000, no. 771 (C.P. Phila. Aug. 23, 2000) (Herron, J.). In addition, In re Core-States Trust Fee Litigation, 39 F.3d 61, 69 n.7 (3d Cir. 1994), the only case on which First Union relies in its memorandum, does not stand for the principle cited by First Union. Indeed, the Third Circuit specifically refrained from addressing “the validity of CoreStates’ claim that, in the area of trusts and estates, the federal court should abstain out of deference to the state orphans’ court’s expertise.” 39 F.3d at 69 n.7. Thus, the Philadelphia Court of Common Pleas Trial Division is an appropriate forum for the resolution of this matter.

6. Feasibility of Separate Actions and Recovery of Individual Class Members

Although no precise figures are given, the plaintiffs assert that recovery for most class plaintiffs will be less than $50,000. Plaintiffs’ memorandum at 29. This is low enough to preclude separate actions for each plaintiff. Given the size of the alleged gains, however, it appears that the size of the recovery will be large enough to justify the expense and effort of maintaining this suit as a class action. Cf. Kelly v. County of Allegheny, 519 Pa. 213, 223-24, 546 A.2d 608, 613 (1988) (recovery of $13.61 per plaintiff was neither “trivial” nor “de minimis” and justified class action). As a result, the plaintiffs have satisfied all seven elements to show that a class action is a fair and efficient method of resolving this dispute and are entitled to certification of the class.

VI. Standing

In addition to challenging the plaintiffs on the five class action criteria, First Union argues that the plaintiffs lack standing to bring the instant action. Generally, to have standing, a party must satisfy the following test:

“[0]ne ... must show a direct and substantial interest and a sufficiently close causal connection between the challenged action and the asserted injury to qualify the interest as ‘immediate’ rather than ‘remote.’... [A] substantial interest requires some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law. . . . Direct simply means that the person claiming to be aggrieved must show causation of the harm to his interest .... The immediacy or remoteness of the injury is determined by the nature of the causal connection between the action complained of and the injury to the person challenging it.” DeFazio v. Civil Service Commission, 562 Pa. 431, 756 A.2d 1103, 1105 (2000). (citations omitted) See also, J.A.L. v. E.P.H., 453 Pa. Super. 78, 86, 682 A.2d 1314, 1318 (1996) (“the proponent of the action must have a direct, substantial and immediate interest in the matter at hand”).

A class action plaintiff is required to have standing, although a plaintiff satisfies the requirements of standing when he or she is “a member of the class which he or she seeks to represent at the time the class is certified by the court.” Janicik, 305 Pa. Super. at 135, 451 A.2d at 458 (quoting Sosna v. Iowa, 419 U.S. 393, 403 (1975)). Cf. Alessandro v. State Farm Mutual Automobile Insurance Co., 259 Pa. Super. 571, 580, 393 A.2d 973, 977 (1978), aff’d in part, rev’d in part on other grounds, 487 Pa. 274, 409 A.2d 347 (1979) (“[i]f the representative before the court does not seek to raise on his own behalf a case or controversy substantially alike those of the absent members of the class, he lacks standing to act as a class representative”). Because the plaintiffs allegedly incurred capital gains tax liability between December 1998 and December 1999 through their investment in one of the certification funds, they are members of the class and meet the requirements for standing.

Relying on D’Amelio v. Blue Cross of Lehigh Valley, 414 Pa. Super. 310, 606 A.2d 1215 (1992), First Union contends that the “plaintiffs cannot step into the shoes of any trust fund participant other than one invested in the CoreStates Growth and Income Equity Trust, as plaintiffs did not suffer a similar injury as a result of the conversion process. . . .” First Union’s memorandum at 11. First Union’s reliance on D Amelio is misplaced, however. The opinion cited by First Union was the second opinion issued by the Superior Court in D Amelio and addressed the plaintiffs attempt to add 19 hospitals with which he had had no dealings as defendants. The court concluded that the plaintiff did not have standing to bring claims against the additional defendants because “[n]one of the other hospitals sought to be joined engaged in conduct which contributed to the injury he suffered . 414 Pa. Super. at 315, 606 A.2d at 1217. Here, in contrast, it is the same conduct, i.e., First Union’s undertaking of Project U2, that allegedly led to harm to all the members of the class and that the plaintiffs challenge. Cf. Nye v. Erie Insurance Exchange, 504 Pa. 3, 6, 470 A.2d 98, 100 (1983) (“a plaintiff in a class action who has not suffered an injury from the challenged conduct of a defendant cannot maintain a class action against that defendant” due to lack of standing). As a result, D’Amelio does not support the contention that the plaintiffs lack standing, and First Union’s argument must be dismissed.

CONCLUSIONS OF LAW

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

(2) There are questions of law and fact common to the class.

(3) The claims or defenses of the representative plaintiffs are typical of the claims or defenses of the class.

(4) The representative plaintiffs will fairly and adequately assert and protect the interests of the class.

(5) The attorney for the representative plaintiffs will adequately represent the interests of the class.

(6) There is no conflict of interest between the representative plaintiffs and the class members which would impede the maintenance of a class action.

(7) The representative plaintiffs have or can acquire adequate financial resources to assure the class interests will not be harmed.

(8) The class action will provide a fair and efficient method for adjudicating this controversy.

(9) Common questions of law or fact predominate over any question affecting only individual members.

(10) There are no difficulties in case management which would preclude litigating this matter as a class action.

(11) Prosecution of separate actions by class members would create a risk of inconsistent and varying adjudications and might confront First Union with incompatible standards of conduct.

(12) Individual adjudications would, as a practical matter, dispose of the interests of other class members not parties to the adjudication, or would substantially impair their ability to protect such interests.

(13) This particular forum is appropriate for the litigation of the entire class’ claim.

(14) The complexities of the issues, the expenses of litigation and the small amount of each individual class member’s claim make it impossible to support or justify the presentation of separate claims.

For these reasons, the court is satisfied that the instant case is appropriate for disposition as a class action and has certified the class.

ORDER

And now, May 8, 2001, upon consideration of plaintiffs Robert Parsky and Ann Roantree’s motion for class certification, defendant First Union Corporation’s opposition thereto, oral argument before the court and all other matters of record, and in accord with the opinion being filed contemporaneously with this order, it is hereby ordered and decreed as follows:

(1) The above-captioned action is certified as a class action for claims of breach of contract and breach of fiduciary duty;

(2) The class shall consist of all persons (including, but not limited to, individuals, proprietorships, partnerships, corporations, trusts and other business entities) who incurred tax liability by reason of capital gains from December 1998 through December 1999 on any investment held in any of the following funds: the CoreStates Growth & Income Equity Trust, the CoreStates Growth Equity Trust, the CoreStates Charitable Equity Trust, the CoreStates Value Equity Trust, the CoreStates Union County Equity Trust, the CoreStates Balanced Trust, the Signet Investors Equity A Fund, the Signet Investors Equity B Fund and the Signet Capital Growth Fund;

(3) Plaintiffs Robert Parsky and Ann Roantree shall serve as class representatives; and

(4) The parties shall submit proposals for a notification procedure and proposed forms of notice for class members within thirty days from the date of this order.

      . The underlying trust funds are referred to as the “underlying trusts.”

      . This process is referred to as the “conversion.”

      . The plaintiffs contend that the conversion of one equity fund was delayed until October 2000 because of concerns expressed by some tmst officers. Plaintiffs’ memorandum at 6 n.5.

      . The fixed income and equity funds are collectively referred to as the “Project U2 funds.”

      . The plaintiffs have attached copies of each of the letters as plaintiffs’ memorandum exhibit B. According to their headings, the letters are categorized not according to the fund in which the investor invested but rather where the investor lived, whether the investor was charitable or noncharitable, and whether the investor was discretionary or nondiscretionary, as follows:
      Letter A — discretionary, noncharitable
      Letter B — nondiscretionary, noncharitable
      Letter C — standard, nondiscretionary, follow-up
      Letter D — discretionary, charitable
      Letter E — nondiscretionary, charitable
      Letter F — charitable, nondiscretionary, follow-up
      Letter G — Delaware
      Letter H — Delaware follow-up
      Letter I — discretionary New Jersey
      Letter J — discretionary, noncharitable, New York
      Letter K — nondiscretionary, noncharitable, New York

      . Letters D, E and F, which were sent to charitable investors, do not contain this language. Because charitable investors were not required to pay federal income taxes on the capital gains they incurred, however, the plaintiffs concede that such investors have no claims against First Union whatsoever and are excluded from the proposed class. See plaintiffs’ memorandum at 7 n.7.

      . As mentioned supra, one of the conditions for a section 584(h) conversion is that at least 90 percent of the common trust assets must be transferred to the new fund. Spangler deposition at 10; 26 U.S.C. §584(h). Here, the plaintiffs argue that the Evergreen fund managers would accept 90 percent of the conversion funds assets only if they were of a type that met with Evergreen fund criteria. Plaintiffs’ memorandum at 9. To meet this manager-imposed requirement, the managers of the acquired funds were forced to sell their own assets/shares, creating the gains. Id.

      . The assertions set forth in the previous paragraph would satisfy the causation element for the plaintiffs’ causes of action.

      . The class proposed by the plaintiffs is referred to as the “class.”

      . As noted supra, the plaintiffs concede that charitable investors have no valid claims against First Union. Plaintiffs’ memorandum at 7 n.7. Based on this fund’s title, it is unclear if there are investors in this fund who should be included in the class action.

      . These nine funds are referred to collectively as the “certification funds.”

      . Each Pennsylvania Rule of Civil Procedure is referred to individually as a “rule.”

      . It has been noted that “the requirements for class certification are closely interrelated and overlapping . . . .” Janicik v. Prudential Insurance Co., 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982). (citations omitted)

      . Breakdowns are not given either for discretionary or nondiscretionary investors, or for charitable investors, who are excluded from the class.

      . First Union does not argue that there are any material differences in the language of the different letters.

      . While not binding, federal cases interpreting the federal class action rules can have persuasive value in Pennsylvania courts. McMonagle v. Allstate Insurance Co., 460 Pa. 159, 167, 331 A.2d 467, 471-72 (1975). The three cases set forth in the text exhaust the list of cases addressing certification of a class of investors in one or more common trust funds.

      . The plaintiffs specifically requested that First Union produce “all documents on which First Union intends to rely in opposition” to the motion, but no instruments governing the underlying trusts have been produced. Plaintiffs’ reply at 7-8.

      . First Union asserts that each of the certification funds was managed independently and that security sales that gains in one fund were not made, and therefore did not produce gains, in any other fund. Defendant’s memorandum at 16. According to First Union, this requires examinations of each trade to determine whether the trade was made in anticipation of the conversion, whether the trade was consistent with the specific fund’s objectives and whether the trade resulted in gains. Id. at 18.

      . The court notes that, in the cases cited by the plaintiffs, the court certified classes consisting of, at most, two common bust funds. See First Alabama Bank of Montgomery N. A. v. Martin, 425 So.2d 415 (Ala. 1983). In none of those cases, however, does it appear that there was a broad scheme covering so many common trust funds, like the one First Union is alleged to have implemented here.

      . The plaintiffs argue that there are no differences in the breach of contract claims of discretionary and nondiscretionary investors. First, they point out that the letters sent to both types of investors included either the statement that the conversion would “not result in you or your account incurring any federal income tax” or the other language to that effect. Plaintiffs’ memorandum at 18-19. Second, they argue that there are no differences in First Union’s defenses to the discretionary and nondiscretionary investor’s claims. Plaintiffs’ reply at 20-21.

      . The fact that the plaintiffs are nondiscretionary investors would not prevent certification of a class and subclasses. See e.g., In re NASDAQ Mkt. Makers Antitrust Litig., 169 F.R.D. 493 (S.D.N.Y. 1996) (certifying class and subclasses where named plaintiffs had invested only in 60 of the 1,659 securities at issue); Maywalt v. Parker & Parsley Petroleum Co., 147 F.R.D. 51, 56 (S.D.N.Y. 1993) (“to satisfy the typicality requirement, it is not necessary for the named plaintiffs to have invested in all of the investment vehicles”).

      . Courts considering “other matters” have looked at the following:
      “Evidence of dishonesty, bad character, disregard of duties, abdication to the unfettered discretion of class counsel, or of having been solicited to be class representative by counsel who are conducting the suit for their own gain, will all weigh against the named party’s adequacy as a representative.... In contrast, evidence of honesty, willingness to pursue the matter, knowledge of facts underlying the action, understanding of the essence of the legal claim, a desire to right a perceived wrong, or the hope of recovery will all support a named party’s adequacy as a representative.” Janicik, 305 Pa. Super. at 140, 451 A.2d at 461. (citations omitted) The plaintiffs have stated that they are not aware of any other matters that require consideration. Plaintiffs’ memorandum at 30.

      . Courts have held that “an affidavit of counsel that it will advance the necessary costs is all that is required” to meet the adequate financial resources requirement. O’Neill, 1998 WL1543498, at *7 (quoting Janicik, 305 Pa. Super. at 137-38, 451 A.2d at 459-60).

      . The plaintiffs’ attorneys also have attached an affidavit regarding advancement of costs to the plaintiffs’ memorandum as exhibit F.

      . First Union challenges the plaintiffs only on the criteria set forth in paragraphs (1), (2) and (5).

      . First Union appears to recognize that Pennsylvania courts may certify a national class if the conditions of Rule 1702 are met. See Weinberg, 740 A.2d at 1164 (Pennsylvania’s procedural rules regarding class certification “provide an explicit procedure for residents of other states to submit themselves to our jurisdiction and be included in Pennsylvania class actions”).

      . Of the remaining four certification trusts, the plaintiffs contend that the CoreStates Union County Equity Trust is governed by New Jersey law, while the three Signet funds are governed by the law of the “jurisdiction in which the fund is administered.” Plaintiffs’ reply at 10 n.3.

      . First Union’s failure to establish this last point is significant because a court need not engage in a conflict of laws analysis if there is no difference in the substantive laws of the two jurisdictions. See Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 702 (Pa. Super. 2000) (“[i]n Pennsylvania, choice of law analysis first entails a determination of whether the laws of the competing states actually differ. If not, no further analysis is necessary”).

      . Opinions available at http://courts.phila.gov/cptcvcomp.htm. First Union’s appeal on this issue was quashed by the Superior Court on November 2,2000.

      . According to First Union, the CoreStates court “not[ed the] deference to state orphans’ courts in matters involving trust administration.” Defendant’s memorandum at 23.

      . In D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 500 A.2d 1137 (1985), decided seven years earlier, the Superior Court reversed the lower court’s denial of certification and certified a class of persons who had been denied medical coverage by Blue Cross at one specific hospital.


source: Caselaw Access Project

author: JAMES, /.,

license: Public Domain

text:
    Barlet v. Horner

      C.P. of Columbia County,
    no. DR 364 of 1985.

      Garry Warnser, for plaintiff.

      William Kim Hill, for Pa. Dept, of Public Welfare.
    January 22, 2001
   JAMES, /.,

On July 6, 2000, plaintiff filed a petition for modification with the domestic relations office seeking a three-year review of a child support order for the parties’ minor child, Kristy L. Barlet, born August 17, 1984. After a conference, the domestic relations office recommended that defendant’s support obligation increase from $176 per month to $337.97 per month. The Department of Public Welfare, as assignee of plaintiff, filed exceptions to the recommendation. The exceptions were limited solely to the issue of what portion of arrearages was owed to DPW and what portion of the arrearages was due to the plaintiff.

On September 26, 2000, a hearing was held before the domestic relations special hearing officer. DPW representatives and plaintiff testified. Certain payment history records and plaintiff’s DPW history records were submitted into evidence. The parties agreed that during the applicable times in this case, plaintiff had signed an assignment in order to receive assistance. The assignment said that “When I sign this form, I understand that: . . . [ ] All rights to support for myself and others for whom I am accepting cash benefits are assigned to the state. [ ] All support, including arrears, will be paid to the state. Support retained by the state will not exceed the amount of cash benefits received.”

The hearing officer conducted an audit and determined that arrearages owed by defendant totaled $12,024.57 as of September 27, 2000. At that time, plaintiff was no longer receiving public assistance. The hearing officer found that the language in the document signed by plaintiff assigned only the support and arrearages that defendant owed to her while she was receiving public assistance. Once she was off public assistance, the hearing officer found that DPW was not entitled to arrearages that had accumulated prior to plaintiff receiving public assistance, or during those times when she was not collecting public assistance. He allocated the arrearages due as follows: $7,233.47 to plaintiff; $4,627.91 to DPW; and $163.19 toward court costs. DPW appealed this recommendation to this court, arguing that the hearing officer should have allocated to DPW the arrears due plaintiff at the time she signed the assignments.

The issue is simpler than the convoluted, sketchy record seems to indicate. The issue is whether, as a condition of receiving public assistance, plaintiff assigned to DPW her rights to receive arrearages that were owed to her at the time she made the assignment. Plaintiff argues that the language in the assignment is at best ambiguous and should be construed against the scrivener, i.e., DPW. She argues that the phrases “All rights to support” and “All support including arrears” should only mean prospective support and arrears. Actually, it is the statute, not the written assignment that governs:

“Acceptance of public assistance shall operate as an assignment to the department, by operation of law, of the assistance recipient’s rights to receive support, on his or her own behalf and on behalf of any family member with respect to whom the recipient is receiving public assistance.
“Such assignment shall be effective only up to the amount of public assistance received. The assignment shall take effect at the time that the recipient is determined to be eligible for public assistance. Upon termination of public assistance payments, the assignment of support rights shall terminate, provided that any amount of unpaid support obligations shall continue as an obligation to and collectible by the department to the extent of any unreimbursed assistance consistent with federal law. ... 23 Pa.C.S. §4378(e).” (See also, prior law at 62 P.S. §432.6(e).) (emphasis provided)

Thus, it is through “operation of law” by which the assignment is made and governed. The written assignment is recipient’s acknowledgement of the statute’s mandate. The statute requires the recipient to “assign to the department on forms provided by the department such support rights as the applicant or recipient may have individually or on behalf of any family member who is a part of the assistance group.” 23 Pa.C.S. §4379 (l)(ii). (See also, prior law 62 P.S. §432.6(a)(2).) Plaintiff was obligated by law to assign her support rights to DPW.

There is a paucity of Pennsylvania cases addressing whether the language of the statute (and of the assignment) assigns to DPW arrearages owed to plaintiff at the time of the assignment. The dearth of cases may be because the term “All rights to support” and “All support including arrears” is so clear. The term “all” clearly means just that, i.e., all rights that the recipient has at that time (any arrearages) and all rights in the future while the recipient is receiving support. In fact, Pennsylvania appellate decisions have acknowledged that arrearages due and owing the public assistance recipient at the time the recipient assigns support rights become a “debt due the state.” See Commonwealth of Pennsylvania, Department of Public Welfare ex rel. Martinez v. Alvin, 278 Pa. Super. 64, 66, 419 A.2d 1358, 1359 (1980). See also, Long v. Thomas, 152 Pa. Commw. 416, 619 A.2d 394 (1992).

Although there was discussion at the hearing about the manner of distribution of support payments, that issue is governed by statute. See 23 Pa.C.S. §4373. The only issue before this court is the arrearage issue. Arrearages due and owing plaintiff when she signed the documents were assigned to DPW and continue to be assigned to DPW (see 23 Pa.C.S. §4378(e)), subject to 23 Pa.C.S. §4373 and other qualifying provisions that are not at issue in this case. DPW’s exceptions are sustained. An adjustment in the allocation of the total arrearages should be made accordingly.

ORDER

And now, January 22, 2000, the exceptions of the Department of Public Welfare are sustained. The matter is remanded to the Domestic Relations Office to reallocate the arrearages in a manner consistent with this opinion. The hearing transcript shall be paid by plaintiff.


author: CARPENTER, J.,

text:
    Werner v. IA Construction Corp.

      C.P. of Blair County,
    no. 99 GN 2460.

      Michael J. Colarusso, for plaintiff.

      Linda L. Pretz, for defendant I.A. Construction Corp.

      Brian H. Baxter, senior deputy attorney general, for defendant PennDOT.

      William J. Stokan, for additional defendant.
    March 22, 2001
   CARPENTER, J.,

This matter is before the court for resolution of two motions to compel discovery filed on behalf of plaintiff, Joseph C. Werner, directed at defendant Department of Transportation. The matter was argued before the court to a conclusion on February 16, 2001. Briefs have been submitted and reviewed. The submissions filed by the Commonwealth also include briefs which were filed in the case of Marion Clary v. PennDOT, 4865 of 1998 (Westmoreland Cty.) in Westmoreland County. Having reviewed the various submissions and the applicable law (both state and federal), we will discuss the discovery issues in the order raised commencing with those issues which the Commonwealth contends represent areas of disagreement. We will then turn to those areas where we understand agreement exists and state those agreements.

ISSUE NO. 1 — PLAINTIFF’S ENTITLEMENT TO NAMES AND ADDRESSES OF INDIVIDUALS IN ACCIDENTS ALONG THE SUBJECT STRETCH OF ROAD THROUGH OBTAINING COPIES OF THE POLICE REPORTS

Plaintiff is seeking police reports sent to PennDOT for record keeping pursuant to 75 Pa.C.S. §§3751 and 3753. Plaintiff argues his entitlement to this discovery since PennDOT is the “central agency” for collection and storage of these police reports. Plaintiff seeks to separate the responsibilities of PennDOT as a central repository from the admittedly substantial protections afforded under 75 Pa.C.S. §3754.

PennDOT maintains this discovery is precluded by statutory enactments at both the state and federal level. At the state level, PennDOT cites to 75 Pa.C.S. §3754 which provides as follows:

“(a) General rule. — The department, in association with the Pennsylvania State Police, may conduct in-depth accident investigations and safety studies of the human, vehicle and environmental aspects of traffic accidents for the purpose of determining the causes of traffic accidents and the improvements which may help prevent similar types of accidents or increase the overall safety of roadways and bridges.
“(b) Confidentiality of reports. In-depth accident investigations and safety studies and information, records and reports used in their preparation shall not be discoverable nor admissible as evidence in any legal action or other proceeding, nor shall officers or employees or the agencies charged with the development procurement or custody of in-depth accident investigations and safety study records and reports be required to give depositions or evidence pertaining to anything contained in such in-depth accident investigations or safety study records or reports in any legal action or other proceeding. 1976, June 17, P.L. 162, no. 81, section 1, effective July 1, 1977. Amended 1986, December 11, P.L. 1530, no. 166, section 7, effective in 60 days.”

PennDOT argues the confidentiality provided for in 75 Pa.C.S. §3754 extends to police reports.

The Commonwealth also argues a further prohibition exists under federal law. We are directed to 23 U.S.C. §409 as follows:

“Section 409. Discovery and admission as evidence of certain reports and surveys
“Notwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying, evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvements project which may be implemented utilizing federal-aid highway funds shall not be subject to discovery or admitted into evidence in a federal or state court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.”

The Commonwealth argues both these statutes preclude discovery of police reports. We disagree.

In reaching that conclusion, we distinguish the role of PennDOT as a central repository for all reportable traffic accidents from their role in crash prevention, analysis of accident characteristics, and mitigation strategies to reduce the potential for further accidents contained in section 3753(a) and (b). There is no doubt in performing the latter function PennDOT is clearly entitled to protection. However, where the department is charged statutorily with the ministerial duty of maintaining a central repository we cannot fathom how this function defeats a discovery request where the request asks for no information beyond the reports themselves.

Such a request is violative of neither the letter nor the spirit of sections 3753(b) or 3754. In so holding, we distinguish between PennDOT’s role as the required compiler of accident reports and any use which is made of the same which we would determine to be protected.

We believe we are also consistent with the federal statute as interpreted by federal courts. As stated in Kitts v. Norfolk and Western Railway 152 F.R.D. 78 (S.D.W.V. 1993), section 409 by definition potentially deprives fact-finders of at least some relevant evidence. As a result, it will be strictly construed to protect documents and data prepared for purposes of safety enhancement, but not for documents compiled for some other purpose, even if their contents or parts of them eventually become ingredients in a safety enhancement program. In the case before the court, PennDOT’s role as a central repository falls far short of being specifically tailored for safety enhancement although (as in Kitts) some parts of the contents of the reports could eventually become ingredients in a safety enhancement program. As such, we find this application consistent with Pennsylvania law.

It is also consistent with protecting both the rights of individual litigants and PennDOT. In this regard, to adopt the Commonwealth’s position is to grant the Commonwealth a limited immunity given their role as the only central repository for this relevant information. We are mindful plaintiff is required to prove not only the dangerousness of the roadway but notice to the Commonwealth of the condition (whether the roadway is dangerous for some particular reason or generally). Without the ability to obtain reports from the central repository, plaintiff would be (at worst) precluded and (at best) substantially limited in his ability to proceed. If this was the intention of either the Pennsylvania Legislature or the federal government they could have said so and/or granted further immunity. That they did neither bolsters our analysis. We are also mindful plaintiff is not even asking if any safety study or evaluation was ever performed. This further highlights our belief plaintiff’s request goes to the role of PennDOT as a central repository as opposed to other prohibited areas.

ISSUE NO. 2 — EVIDENCE OF SUBSEQUENT ACCIDENTS

Plaintiff next argues an entitlement to “post-accident accidents.” In support of this request, plaintiff argues his burden to (1) establish a dangerous condition of the roadway existed on the day of the accident; (2) to show PennDOT had notice of a dangerous condition entitles Mm to tMs discovery, plaintiff contends accidents subsequent to the accident in litigation are admissible to show a dangerous condition of the roadway if combined with a showing the condition of the roadway has not been changed since the accident.

PennDOT argues this evidence is not admissible so it should not be discoverable. We agree with PennDOT and preclude discovery. The weakness in plaintiff’s argument goes to what is perhaps the most fundamental principle of admissibility of evidence — namely, does its probative value exceed its prejudicial effect. At trial, a jury will be asked to determine the dangerousness of the subject roadway and PennDOT’s knowledge of that dangerous condition (constructive or otherwise) on the date in question. Evidence of subsequent accidents has only limited value. It is irrelevant to establish Penn-DOT’s knowledge of dangerousness on the date in question. At most, to the degree it can be shown the road was unchanged and conditions were similar, the evidence could support to a limited extent dangerousness of the roadway argument. This is not straightforward. The very nature of roadways is they deteriorate over time. As such, prior accidents demonstrating a road already in a dangerous condition while also providing notice are truly the best evidence. This is simple common sense. Compared to its probative value, the cost for admitting this evidence is high. It places before the jury, accidents wMch by defimtion can play no part in PennDOT’s knowledge of dangerousness on the date in question. At the same time, it creates a substantial risk of jury confusion/distraction to such a degree we conclude any potential probative value is outweighed by its prejudicial effect.

Worse, this is not a one-step process. Having allowed subsequent accidents into the case, we necessarily place PennDOT in the position of “defending” or “distinguishing” those accidents. All this can only serve to largely divert the jury from those considerations central to the case — namely, conditions and knowledge existing on the date in question — by creating a sideshow of limited relevance.

Accordingly, we preclude plaintiff’s discovery request .for police reports after the date of the accident in question.

ISSUE NO. 3 — WHAT CONSTITUTES THE APPROPRIATE TIME FRAME FOR DISCOVERY OF POLICE REPORTS

Having dealt with the issue of the discoverability of the police reports, it remains only to determine for what historical period of time plaintiff is entitled to this information. Plaintiff has requested the names and addresses of accident participants (through the police reports) for a period of five years prior to the accident. The Commonwealth contends such a time frame is unreasonable and burdensome and the discovery should be limited to three years prior to the accident. We agree with plaintiff that five years is appropriate.

In so holding, we do not attempt to create a rule to be applied in all cases. Further, it seems on the facts of this case a five-year period is appropriate. We base this on two considerations. First and primarily, in our case, IA Construction Corporation is a named defendant. The significance of IA Construction Corporation’s involvement is it allegedly resurfaced the road in 1992. This serves to make a five-year period of discovery potentially meaningful in terms of IA Construction’s role in either taking out low spots or creating low spots in the road. Second, it is our understanding PennDOT generally uses a five-year period as its own “window” prior to any changes in road design/safety enhancement. For both of these reasons, we find the five-year period most appropriate in the present litigation.

Having dealt with the issues representing areas of disagreement we understand as follows as to the parties areas of agreement.

(1) PennDOT is agreeable to responding to the request for PennDOT publication 408 for the year of the accident (1997).

(2) PennDOT is agreeable to producing the record of the existence of “slippery when wet” signs for a period of time (as yet unstated) leading up to the accident.

(3) PennDOT is agreeable to providing plaintiff access to look through their records with respect to guardrail repair or a placement request which they have directed to citizens who have damaged guardrails and also the fact of guardrail repair provided that plaintiff conducts the review at the PennDOT location where the records are maintained.

It is our understanding this agreement is founded on the fact these records are kept “by county” so it would be extremely burdensome for PennDOT to research this discovery themselves.

Accordingly, and consistent with all of the above it is ordered, directed and decreed the discovery to take place shall be provided within 30 days of this order.

We note, parenthetically, it has been called to our attention while defendant IA Construction Corporation has been ordered to produce expert reports within a specific time frame that plaintiff has not. We believe we resolved this issue by our letter of February 22, 2001 in which we direct that expert reports were to be submitted by the next status conference or a scheduling order would be issued. It would be our expectation plaintiff would submit expert reports by that date. If he has not, specific deadlines will be imposed. If he has submitted reports and the defense has not, then a deadline will be imposed on the defense. All of this can occur at the June 8, 2001 conference without prejudice to any party.


author: SYLVESTER, J.,

text:
    Breznicky v. Kmart Corp.

      Derek R. Lauper, for plaintiffs.

      W. Kelly McWilliams, for defendant.
    April 16, 2001
   SYLVESTER, J.,

FACTS AND PROCEDURAL HISTORY

The instant matter arose out of an accident that occurred on November 27, 1998, inside a Kmart store located in Willow Grove, Pennsylvania. On that date, plaintiff Linda Breznicky and her son, Jason, were shopping in the store when, while walking down aisle 7 to buy an item located there, Ms. Breznicky slipped on an unidentified transparent substance covering the floor at the end of the aisle and ended up on her hands and knees. At the time of her fall a yellow “caution” pylon or cone was sitting on the floor of aisle 7 approximately three quarters of the way down the aisle to the right which left a passageway to the left of the aisle. Ms. Breznicky and her son had walked about a foot or two past the pylon before she fell. She testified that she had seen the pylon as she walked down the aisle but paid it little attention because she saw them everywhere. It is noted that the defendant did not follow its own policy with respect to cleaning up the spill and protecting its customers from its danger.

After she fell, as she attempted to stand up, Ms. Breznicky again lost her footing. This time, she fell backwards onto her buttocks. She also struck her foot on the bottom of a shelf.

Following the incident, Ms. Breznicky reported it to store management. In a report prepared that day by Barry Tennant, Kmart’s loss control manager for the Willow Grove store, the incident type was listed as a slip and fall caused by “spilled merchandise.” Mr. Tennant admitted at trial that certain store policies had been violated with respect to the substance on the floor that caused Ms. Breznicky to fall.

While she was reporting the accident Ms. Breznicky felt pain in her knee and back. She went home and attempted to alleviate her symptoms by resting and through the use of a heating pad. However, when the pain in her knees, right foot and her back did not subside, she contacted Dr. John L. Beight, a specialist in orthopedic surgery.

According to Dr. Beight, Ms. Breznicky first saw him on December 1, 1998. She had tenderness in her back, medial tibial plateau, and on the bottom of her foot near her heel bone. The doctor attributed her pain to contusions and/or strain of her lumbar spine, knee and plantar fascia. She also had a contused nerve in her knee. The doctor prescribed Motrin and recommended that Ms. Breznicky obtain a Cam walker, which is a removable cast, for her foot.

Dr. Beight saw Ms. Breznicky on December 16,1998, December 29, 1998 and February 2, 1999. She exhibited slow improvement on each visit. However, on February 2, 1999, she still had burning pain in her left knee which the doctor attributed to her contused nerve. The doctor recommended at the February visit that Ms. Breznicky continue to use the Cam walker but that she use it less every day.

Ms. Breznicky next visited Dr. Beight on April 7, 1999. She complained of pain in her back and although her knees still hurt, she could tolerate the pain. The doctor opined that her back pain could have been exacerbated by her use of the Cam walker. Due to the fact that she was still suffering from back pain, Dr. Beight ordered her to get a CAT scan. It revealed tenderness in her sacroiliac joint, a left-sided disc bulge between the third and fourth lumbar vertebrae and a right-sided vertebrae with a narrowing of the tunnel for the nerve leading to her leg.

To alleviate her pain, Dr. Beight recommended that Ms. Breznicky receive an epidural. She declined however and stated that she would continue with her exercises which gave her some relief.

Dr. Beight next saw Ms. Breznicky on July 2, 1999. She still had pain in her sacroiliac joint and although she had intermittent swelling in her right knee and foot, these problems were minor. She was no longer using the Cam walker at that time.

In January of 2000, Ms. Breznicky began experiencing extreme pain in her back. When it did not subside after five days she saw Dr. Beight on January 21, 2000. This time, she had extreme pain in both sacroiliac joints and Dr. Beight recommended that she continue taking an anti-inflammatory.

The doctor again saw her on January 31, 2000, and February 22, 2000. An MRI showed that she had spurs where the joints of her individual vertebrae meet.

According to Dr. Beight, all of Ms. Breznicky’s complaints and injuries were directly caused by the fall in the Kmart in November of 1998. While he could not state that her bulging discs were caused specifically by her fall, he indicated that the fall would have exacerbated any pre-existing back problem.

Ms. Breznicky testified that she still continues to suffer from back pain. She further testified that as a result of the fall, she cannot do many of her household tasks and chores as quickly or as well as she did prior to the accident.

Trial in this matter was conducted in November of 2000 before this court and a jury. At the conclusion of the case, the jury found for plaintiffs Linda and Charles Breznicky and awarded them $200,000 and $15,000 respectively. It is noted that although the jury found that Ms. Breznicky had been negligent, it concluded that her negligence had not been a substantial factor in causing her injuries.

Following the jury’s verdict, defendant filed post-verdict motions that raise various challenges to the validity of the verdict.

DISCUSSION

In its post-verdict motions, the defendant argues that it is entitled to a judgment n.o.v. because Ms. Breznicky failed to establish that the alleged slippery floor was a danger the defendant should have realized that Ms. Breznicky would not discover and protect herself against, where she admits that she walked past and admittedly saw a wet floor warning cone. Defendant submits that section 343 of the Restatement (Second) of Torts (1965) entitles it to the relief it seeks herein.

In Adamski v. Miller, 434 Pa. Super. 355, 359-60, 643 A.2d 680, 682 (1994) the court discussed the standard for reviewing the denial of a motion for judgment n.o.v. as follows:

“Our standard of review of an order denying judgment n.o.v. is whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 4, 564 A.2d 1244, 1246 (1989). The standard of review for an appellate court is the same as that for a trial court: judgment n.o.v. will be entered only in a clear case where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Pirozzi v. Penske OldsCadillac-GMC, 413 Pa. Super. 308, 311, 605 A.2d 373, 375 (1992). An appellate court will reverse a trial court ruling only if it finds an abuse of discretion or an error of law that controlled the outcome of the case. Timbrook v. Foremost Insurance Co., 324 Pa. Super. 384, 387, 471 A.2d 891, 892 (1984).
“Our standard of review of a trial court’s grant or denial of a motion for a new trial is, generally, whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987). If support for the court’s decision is found in the record, the order must be affirmed. A new trial will only be awarded where the verdict is so contrary to the evidence as to shock one’s sense of justice. Giovanetti v. Johns-Manville Corp., 372 Pa. Super. 431, 439, 539 A.2d 871, 875 (1988).”

Applying the foregoing to the instant matter, it is clear that the defendant is not entitled to any relief. Under the law, possessors of land owe a duty to persons they invite upon their property. The case of Kiehner v. School District of Philadelphia, 712 A.2d 810, 833-34 (Pa. Commw. 1998) makes this clear:

“In Pennsylvania, a possessor of land is liable for physical harm caused to invitees by a condition on the land if, but only if, he or she:
“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
“(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
“(c) fails to exercise reasonable care to protect them against the danger.
“Restatement (Second) of Torts §343 (1965); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). The possessor of land, however, is not liable to the invitees for the injuries caused by any ‘condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness’ Restatement (Second) of Torts §343(A)(1); Carrender.”

Instantly, the defendant’s argument rests upon the fact that Ms. Breznicky acknowledged that she had observed the yellow warning cone and walked past it before she fell. This fact, however, does not free the defendant of liability for several reasons. First, Ms. Breznicky testified that she fell after she had walked past the cone about one foot. Thus, the cone was not located specifically in or on the spot where the substance was situated that caused Ms. Breznicky to fall.

In addition, the substance on the floor was not immediately discemable upon visual inspection. Ms. Breznicky testified that she did not observe the substance that caused her to fall before she fell. (N.T. 11/13/00, p. 56.) Her son Jason corroborated her testimony that the spill was not immediately discemable merely by looking at the floor. (N.T. 11/13/00, p. 80.)

Finally, at the time of her fall, Ms. Breznicky was in the process of searching for a specific item in the store. That the attention of its patrons might be focused elsewhere and not on the floor renders the precautions taken by the defendant inadequate to excuse it from liability. The defendant should have realized that the placing of the cone would not suffice to warn its invitees of the danger posed by the invisible substance laying on the floor insofar as the attention of its invitees would be drawn to searching for the item they sought to purchase.

In Mammoccio v. 1818 Market Street Partnership, 734 A.2d 23, 33 (Pa. Super. 1999) the court had the occasion to quote from the comment to section 343A of the Restatement (Second) of Torts, in pertinent part, as follows,

“There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitees for his protection. This duty may require him to warn the invitee, or take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
“Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.”

Instantly, the danger here was such that the defendant should have realized that the step it took to warn its invitees of the spill would be inadequate to warn its patrons of the dangerous condition under the circumstances existing at the time. This is so given that the warning cone was not placed in or on the spill, the substance on the floor was not discernible upon visual inspection, and the side of the aisle where Ms. Breznicky proceeded appeared to be open to patrons whose attention likely would be focused on finding the items they intended to purchase and not on the warning cone.

Accordingly, defendant’s claim with respect to this issue should be denied.

Defendant next argues that the verdict was against the weight of the evidence because the jury, while finding that Ms. Breznicky was negligent, ruled that her negligence was not a substantial factor in causing her injuries. The defendant contends that it was error for the jury not to have found Mrs. Breznicky’s conduct a substantial factor in causing her injuries because she admitted having seen the warning pylon and continued down the aisle anyway.

In Alber v. Alter, 252 Pa. Super. 203, 381 A.2d 459 (1977) our Superior Court provided an extensive discussion of the standard of review applicable to weight of the evidence claims. The court wrote:

“The law in Pennsylvania is well-settled, that ‘ “[t]he grant of á new trial is within the sound discretion of the trial judge, who is present at the offering of all relevant testimony, but that discretion is not absolute; this court will review the action of the court below and will reverse if it determines that it acted capriciously or palpably abused its discretion.” Austin v. Ridge, 435 Pa. 1, 4, 255 A.2d 123, 124 (1969), and cases there cited. “A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion: [citation omitted]. Neither should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury might have found for either party.” Carroll v. Pittsburgh, 368 Pa. 436, 445-46, 84 A.2d 505, 509 (1951). A new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail....’ ” Alter, 252 Pa. Super. at 212-13, 381 A.2d at 464. (citations omitted) See also, Petrasovits vs. Kleiner, 719 A.2d 799, 803 (Pa. Super. 1998).

The court will now address the plaintiffs’ claim under the above standards.

A careful review of the record indicates that the verdict does not shock one’s sense of justice and therefore, is not against the weight of the evidence because the jury could reasonably have found that Ms. Breznicky was negligent but that she, legally, was not responsible for her own harm. This is the case because of the placement of the cone to the right of the aisle which left a passageway to the left of the aisle, the fact that the cone was not placed in or on the spill, the fact that the substance was not immediately discernible and that the defendant did not follow its own policy with respect to spilled merchandise. All of these theories for the jury’s verdict are reasonable under the facts of the case and the law applicable thereto. Thus, this court will not overturn the findings of the jury as the verdict does not shock this court’s sense of justice. See James v. Nolan M.D., 418 Pa. Super. 425, 614 A.2d 709 (1992) (parties’ own conduct negated negligence of other party).

It is noted that while in the cases cited by the defendant, namely, Kruczkowska v. Winter, 764 A.2d 627 (Pa. Super. 2000) and Craft v. Hetherly, 700 A.2d 520 (Pa. Super. 1997) the Superior Court did reverse verdicts for the respective defendants where the jury had found the defendants negligent but then found that such negligence was not a substantial factor in causing the plaintiffs’ injuries, a careful review of those two cases indicates that they are inapposite to the instant matter. In these two cases, the defense did not question the fact that the plaintiffs suffered injuries as a result of the respective accidents. Here, on the other hand, the plaintiffs vigorously challenged the assertion that Ms. Breznicky was responsible for her own injuries. The plaintiffs pointed out inter alia, that the substance on the floor was not immediately discemable and that the defendant did not follow its own policies regarding spills. These facts could reasonably have caused the jury to find that Ms. Breznicky’s negligence was not a substantial factor in causing her injuries. This court, upon reviewing the record, sees no reason to reverse the jury’s verdict based on the arguments presented by the defendant. Consequently, defendant’s claim with respect to this issue should be denied.

Defendant next argues that this court erred in allowing the plaintiffs to introduce into evidence a photograph taken after Ms. Breznicky’s fall which showed shopping carts blocking the aisle where she fell. The defendant claims that the photograph was inadmissible because it demonstrated that the defendant undertook subsequent remedial measures following Ms. Breznicky’s accident.

While it is true, generally, that evidence of subsequent remedial measures is inadmissible, such evidence may be presented at trial to show that the defendant could have undertaken steps the cost of which were negligible in relation to the risk of danger involved, Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971); Hyndman v. Pennsylvania Railroad Company, 396 Pa. 190, 152 A.2d 251 (1959), or to show control or to impeach relevant testimony. Leghart v. Montour Railroad Co., 395 Pa. 469, 150 A.2d 836 (1959).

In this case, the photograph was relevant and admissible to show not only that the defendant could have, at no cost, easily protected its invitees from the extreme danger the virtually invisible substance posed to them but also to show that the defendant did not follow its own policies with respect to the spill.

Under the circumstances, then, the defendant is not entitled to a new trial due to the admission of the photograph and this issue should be denied.

Fourthly, the defendant argues that this court committed reversible error when it permitted the plaintiffs to give the final closing speech to the jury. This court should not have done so, defendant claims, because no evidence was presented by the defense.

Rule 223.1(D) of the Philadelphia Rules of Civil Procedure provides:

“(D) After the evidence is closed, only one attorney for each party or group of parties may address the jury. The attorney for the party or group of parties having the burden of proof shall first sum up, stating explicitly the ground relied upon. The attorney for each adverse party or group of parties may then address the jury, and, if any such party has offered evidence, the attorney who commenced may conclude, restricting himself or herself to answering the arguments advanced.”

Here, this court ruled that by and through its vigorous cross-examination of the plaintiffs’ witnesses and its marking of three exhibits, the defendant presented a defense thus entitling the plaintiffs to the last speech. This ruling was not erroneous because it is clear from reading the record that the defendant’s intent in conducting its cross-examinations of the plaintiffs’ witnesses in the manner in which it did and in marking the three exhibits was to establish a defense to plaintiffs’ claims. The defendant therefore waived its opportunity to give the final speech.

Even assuming that the court erred in allowing plaintiffs’ counsel to give the final closing address to the jury, the grant of a new trial is unwarranted insofar as the defendant has not indicated in what way it was prejudiced by the ruling. Without some indication that the defendant suffered prejudice as a result of this court’s ruling, the grant of a new trial would be inappropriate here. Accordingly, for the reasons stated, the defendant’s claim with respect to this issue should be denied.

In its final claim, the defendant argues that it is entitled to a remittitur because the amount of the award is exorbitant and excessive. This court does not agree.

The law is clear that a judge should reverse a jury award “only when [it] is plainly excessive and exorbitant, when it shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption.” Paves v. Corson, 765 A.2d 1128, 1137 (Pa. Super. 2000). The fact that a verdict is large in and of itself is not evidence of excessiveness. Layman v. Doemte, 405 Pa. 355, 175 A.2d 530 (1961).

In this case, the record is devoid of any evidence indicating that the verdict amount resulted from partiality, prejudice, mistake or corruption. The jury heard testimony indicating that Ms. Breznicky fell not once but twice and as a result thereof, she suffered serious injury to various parts of her body including her back, knees and foot. The jury also was presented with evidence that at the time of the trial, Ms. Breznicky still had pain as a result of the accident and that as a result of the accident her husband suffered a loss of consortium. Based on these facts, the court sees no reason why the verdict amount should be reduced and therefore, the defendant’s claim with respect to this issue should be denied.

CONCLUSION

Based on the foregoing, defendant’s post-trial motions are denied.

ORDER

And now, April 16, 2001, it is hereby ordered and decreed that defendant’s post-verdict motions are denied.

It is further ordered and decreed that plaintiffs’ motion for delay of damages is granted. The verdict in the amount of $215,000 is hereby molded to include delay damages in the amount of $4,085 for a total award of $219,085.

Judgment is entered accordingly.

      . It is noted that the defense points out in its brief that plaintiffs’ counsel improperly referred to the photograph during his closing argument. However, any issue with respect thereto has been waived because the defendant did not object to the comment. In addition, defendant did not request a limiting instruction thereby waiving any issue he may have had with respect to this issue. O’Malley v. Peerless Petroleum Inc., 283 Pa. Super. 272, 288-90, 423 A.2d 1251, 1260 (1980).