text:
    Dubranski v. Relan

      C.P. of Lackawanna County,
    no. 2006 CV 1241.

      Danielle M. Mulcahey, for plaintiffs.

      Noah E. Katz, for defendant Reían.

      Matthew P. Keris, for defendant Mercy Hospital.
    August 24, 2010
   MINORA, J,

I. INTRODUCTION

Currently before the court are the separate motions for summary judgment of defendants, Manish Reían M.D. and Mercy Hospital. In the interests of judicial economy, we will dispose of both motions for summary judgment in this comprehensive memorandum and order.

By way of background, the plaintiff claims that defendants failed to address Roselyn Dubranski’s hernia and bowel obstruction during her March 15,2004 admission at Mercy Hospital. Allegedly, as a result of defendants’ failure, the decedent suffered sepsis which led to her death.

This instant action sounding in medical malpractice was initiated by plaintiff, Kevin Dubranski, administrator of the estate of Roselyn Dubranski, who filed a complaint on March 7, 2006. The complaint alleges that the decedent, Roselyn Dubranski, presented to Mercy Hospital on March 15, 2004 with complaints of vomiting. An abdominal x-ray at the emergency room revealed a small bowel obstruction. Roselyn Dubranski was thereafter admitted to Mercy Hospital. Despite confirmation of a hernia and small bowel obstruction, defendants allegedly failed to address these conditions during her admissions to Mercy Hospital from March 14, 2004 through March 18,2004. On March 18, 2004, Mrs. Dubranski was allegedly discharged without proper treatment for the large ventral hernia and small bowel obstruction.

On April 10, 2004, Mrs. Dubranski presented to and was admitted to Community Medical Center. A CT scan disclosed a large ventral hernia with incarcerated bowel. However, Roselyn Dubranski’s condition was so deteriorated that she was not stable enough for surgery. On April 11, 2004, Roselyn Dubranski passed away. An autopsy revealed that her death was caused by necrotic ischemic incarcerated bowel in the hernia.

Plaintiffs experts have opined that as of her admission to Mercy Hospital on March 15,2004, Roselyn Dubranski was a surgical candidate and would have tolerated surgery to repair the small bowel obstruction. (See expert report of I. Michael Leitman M.D., FACS attached as exhibit “A” to plaintiff’s answer to motion for summary judgment of defendant, Mercy Hospital). However, Dr. Reían allegedly failed to obtain the necessary studies to determine the cause of the small bowel obstruction and failed to obtain a surgical follow-up. Without surgery and proper treatment, the incarcerated bowel became necrotic, caused pain, suffering and ultimately death.

The matter progressed through the pretrial stage until the defendants filed these instant summary judgment motions. The matter has been adequately briefed and argued before the undersigned on May 5, 2010 and is now ripe for disposition. We will detail the issues below which form the basis for defendants’ collective contentions for summary judgment.

II. ISSUES

(A) Is there a triable issue of fact for the jury to decide whether or not Dr. Reían was an “ostensible agent” of Mercy Hospital?

(B) Has the plaintiff presented enough evidence to send to a jury the issue of whether Dr. Reían’s alleged deviation from the standard of care was the proximate or factual cause of decedent’s harm?

(C) Is the issue of any superseding cause of harm also within the province of a jury negating summary judgment?

(D) The fourth issue has been resolved at oral argument and in plaintiff’s brief when it is conceded and stipulated that Kevin Dubranski will not advance a claim under the Wrongful Death Act from the loss of society and comfort he would have received as a husband from his wife. However, the claim for financial contributions the decedent provided for the care and support of the children of Kevin and Roselyn Dubranski will survive and continue to be pursued.

III. DISCUSSION

The General Standards for Summary Judgment

The standards for ruling on a motion for summary judgment are well-defined and clear. The court can grant summary judgment only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. When considering a motion for summary judgment, the trial court must take all facts of record and reasonable inferences therefrom in the light most favorable to the non-moving party. In doing so, the trial court must resolve all doubts as to the existence of a genuine issue of material fact against the moving party and thus may only grant summary judgment where the right to such judgment is clear and free from all doubt. See Summers v. Certainteed Corporation, 997 A.2d 1152 (Pa. 2010); Toy v. Metropolitan Life Insurance Company, 593 Pa. 20, 928 A.2d 186 (2007).

With those guiding principles in mind, we can now examine the specific contentions for summary judgment in this case.

A.

Mercy Hospital s request for summary judgment on the basis that there is no material dispute of facts which fail to establish a claim against them on the theory of “ostensible agency ”

The Medical Care Availability and Reduction of Error Act (MCARE Act), 40 P.S. §1303.101 et seq. codified the law of ostensible agency as follows:

“(a) Vicarious liability — A hospital may be held vicariously liable for the acts of another health care provider through principles of ostensible agency only if the evidence shows that:
“(1) a reasonably prudent person in the patient’s position would be justified in the belief that the care in question was being rendered by the hospital or its agents; or
“(2) the care in question was advertised or otherwise represented to the patient as care being rendered by the hospital or its agents.
“(b) Staff privileges — Evidence that a physician holds staff privileges at a hospital shall be insufficient to establish vicarious liability through principles of ostensible agency unless the claimant meets the requirements of subsection (a)(1) or (2). See 40 P.S. §1303.516(a)(1)(2) and (b).”

This codification came into being because it has been the law in Pennsylvania that a hospital may be held liable for the acts of omissions of an independent doctor under the theory of ostensible agency. Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980); McClellan v. Health Maintenance Organization of Pennsylvania, 413 Pa. Super. 128, 604 A.2d 1053 (1992).

Also, the factors relevant to finding of ostensible agency may be established through inferences derived from the evidence. Goldberg v. Isdaner, 780 A.2d 654, 661 (Pa. Super. 2001).

For the first part, a jury can reasonably find ostensible agency without the plaintiff specifically testifying that she believed that she was being treated by the defendant hospital and not the defendant doctor. See Goldberg v. Isdaner, supra.

Moreover, the “representation” requirement is satisfied if the hospital acts or omits to act in some way which leads the patient to a reasonable belief that she is being treated by the hospital or one of its employees. Fenchen v. St. Luke’s Hospital, 71 D.&C. 4th 401 (2005); Capan v. Divine Providence Hospital, supra.

In the case at hand, a jury would certainly be able to derive inferences from the facts in the record to determine under the “reasonably prudent person” standard that Mrs. Dubranski believed she was under the care of the hospital and/or that Dr. Reían was an agent of the hospital.

The facts of record include but are not limited to:

(1) Mrs. Dubranski meeting Dr. Reían after presenting to the Mercy Hospital emergency room for care;

(2) Mrs. Dubranski being treated by Dr. Reían at Mercy Hospital from March 15,2004 through March 18, 2004;and

(3) Mrs. Dubranski being billed by Mercy Hospital for treatment from March 15,2004 through March 18,2004 while she was under the care of Dr. Reían.

(See deposition of Dr. Reían pp. 28-29. 77-78' — exhibit “A” to Dr. Relan’s brief and exhibit “B” to Dr. Relan’s brief — invoices for services of Mercy Hospital.)

Ultimately, the guidelines of “ostensible agency” as set forth at 40 RS. §1303.516 must be analyzed from the “reasonably prudent person” perspective. Moreover, this analysis is obviously left to the jury. See Goldberg v. Isdaner, supra.

Since our summary judgment record must be viewed in the light most favorable to the non-moving party, we must deny Mercy Hospital’s motion for summary judgment based on the “ostensible agency” issue and leave said determination of “ostensible agency” to the jury. See Summers v. Certainteed Corporation, supra.

B.

Has the plaintiff presented enough evidence to send to a jury the issue of whether Dr. Reían’s alleged deviation from the standard of care was the proximate or factual cause of decedent’s harm?

Because medical malpractice is a form of negligence, to state a prima facie cause of action, a plaintiff must demonstrate the elements of negligence: a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, and the damages suffered were a direct result of the harm. See Quinby v. Plumsteadvilie Family Practice Inc., 589 Pa. 183, 907 A.2d 1061 (2006).

With all but the most self-evident medical malpractice actions, there is the requirement that the plaintiff provide a medical expert who will testify as to the elements of duty, breach and causation. Quinby v. Plumsteadvilie Family Practice Inc., supra.

This requirement stems from a judicial concern that, absent the guidance of an expert, jurors are unable to determine relationships among scientific factual circumstances. See Joyce v. Boulevard Physical Therapy & Rehabilitation Center P.C., 694 A.2d 648 (Pa. Super. 1997).

In the case at hand, plaintiff has presented two expert reports which certainly merit sending the case to a jury. (Exhibit “A” — expert report I. Michael Leitman M.D., FACS and exhibit “B” — expert report of Brian D. Feingold M.D., FACP.)

As Dr. Feingold opined:

“upon presentation with signs, symptoms, and radiological findings of partial SBO (small bowel obstruction), the standard of care required further evaluation with an abdominal CT scan and a surgical consultation to determine the underlying cause of her condition. Common causes of extrinsic bowel obstruction include hernias and scar tissue (adhesions) from prior abdominal surgery. The reducible ventral hernia, noted by the ER physicians, was the most likely cause of the partial SBO. Dr. Reían negligently failed to order an abdominal CT scan and admitted that he did not consider ordering a CT scan or surgical consultation because of her “clinical findings.” Furthermore, Dr. Reían incorrectly surmised that the partial SBO was due to renal failure, when in fact renal failure is actually one possible cause of adynamic ileus, a different condition, which represents physiologic slowing down of bowel obstruction, which is due to a true extrinsic or internal anatomic blockage of the intestines. Dr. Reían negligently surmised that the patient’s nausea and vomiting were secondary to gastritis from medication and renal failure, rather than secondary to the partial SBO, the latter of which was a far more likely clinical cause. Although the patient clinically improved during her hospitalization, Dr. Reían failed to order a work-up for the underlying cause of her partial SBO. No repeat abdominal x-ray or CT scan was ordered to follow-up on the findings of partial SBO. Furthermore, the underlying cause of partial SBO was never addressed.”

Moreover, plaintiffs other expert, Dr. Leitman, opened that Mrs. Dubranski should have undergone surgery while under Dr. Relan’s care and would have been a reasonable candidate. He stated:

“It is my opinion within a reasonable degree of medical certainty that had Mrs. Dubranski been referred to a general surgeon, having the information of her medical history of intestinal obstruction and the ventral hernia, that surgical repair of the ventral hernia would have been carried out and would have prevented further episodes of intestinal obstruction, incarcerated hernia, intestinal necrosis, sepsis and her death. She would have been a reasonable surgical candidate by March 18, 2004.”

Her presentation to Community Medical Center in April 2004 and attempts at surgery therefore were moot because when she presented to the hospital she was no longer a candidate for surgery “due to her instability she could not have surgeiy and expired on April 11, 2004.” (See Dr. Leitman’s expert report.)

Ultimately, plaintiffs have produced a prima facie case of medical malpractice against Dr. Reían which must be resolved by a jury. Therefore, we must deny Dr. Relan’s motion for summary judgment in this regard.

C.

Is the issue of any superseding cause of harm also within the province of a jury negating summary judgment?

Defendants argue that somehow Dr. James Juinta or the Community Medical Center were responsible for superseding causes negating their liability. However, they did not join either party as an additional defendant. See Pa.R.C.P. 2252 et seq.

Even if they did, the issue of intervening and/or superseding cause is left to the jury where as is the case here, the plaintiff has established a prima facie case of medical malpractice against the named defendants. See Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990); Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980).

Therefore, the defendants attempt to invade the province of the jury on the issues of intervening and/or superseding cause must be denied.

D.

As we indicated above, plaintiff Kevin Dubranski’s claim for loss of society and comfort of his wife Roselyn Dubranski has been withdrawn. Plaintiff Kevin Dubranski will be allowed to continue his claim for lost contributions his wife, Roselyn Dubranski provided to care for and support their children.

A comprehensive order consistent with this memorandum follows.

ORDER

And now to wit, August 24,2010, upon due consideration of collective defendants’ motions for summary judgment and in accordance with able arguments of counsel, their stipulations and this memorandum.

It is hereby ordered and decreed that:

(1) Plaintiff Kevin Dubranski’s claim for loss of society and comfort of his wife Roselyn Dubranski is withdrawn. Plaintiff Kevin Dubranski will be allowed to continue his claim for lost contributions his wife, Roselyn Dubranski provided to care for and support their children.

(2) All other aspects of collective defendants’ motions for summary judgment are denied.


source: Caselaw Access Project

author: O’BRIEN, S.J.,

license: Public Domain

text:
    May v. Petrizzo

      C.P. of Monroe County,
    no. 2607 Civil 2009.

      Marshall F. Anders, for plaintiffs.

      Cletus P. Lyman, for defendant.
    July 23, 2010
   O’BRIEN, S.J.,

I. FINDINGS OF FACT

(1) Fred R. May and Adelaide F. May took title to a parcel of land approximating 12 acres in the Township of Middle Smithfield, County of Monroe and State of Pennsylvania by virtue of a deed dated January 6,1956, from Daniel E. Marvin et ux. and recorded in the Office for the Recording of Deeds in and for Monroe County, Pennsylvania in Deed Book 219, Page 442. Following the death of Fred R. May and Adelaide F. May, the remainder of the premises was conveyed by their surviving children as executors of their estate to the plaintiffs in this proceeding. The boundary line of tract one in the above-referenced deed is referenced as, “and along and in the old Milford Road” which is now known as Township Road 542.

(2) On January 4, 1973, John Petrizzo and Mary Ann Petrizzo, parents of the defendant in this proceeding took title to an approximate six acre parcel of land situate in the Township of Middle Smithfield, County of Monroe and State of Pennsylvania by virtue of a deed from Theodore B. Regina, et ux. recorded in the Office for the Recording of Deeds in and for Monroe County, Pennsylvania in Deed Book 444, Page 64. Subsequently, the premises was conveyed to their son, the defendant. The description references as a boundary line, “a point in the centerline of Township Route No. 542.”

(3) During the year 1990, acting independently, both Adelaide R May and John R Petrizzo engaged registered surveyor, Frank J. Smith Jr., to perform survey work and prepare plans for different purposes. Frank J. Smith Jr. is an experienced and well-respected surveyor in the Middle Smithfield Township area whom both Adelaide F. May and John F. Petrizzo chose for their professional work in 1990.

(4) On March 14, 1990, Adelaide F. May certified a subdivision plan prepared by Frank J. Smith Jr. of the land described in deed book 219, page 442 for the purpose of conveying a part thereof to one of her children. The plan showed the boundary line between the May and Petrizzo properties within Township Route 542. The plan was approved by the governing bodies of Middle Smith-field Township and recorded of record.

(5) On October 17,1990, John F. Petrizzo Sr. certified a land development plan prepared by Frank J. Smith Jr. for the premises described in deed book 444, page 64, which depicted the boundary between the Petrizzo and May premises within Township Route 542. The plan was approved by the governing bodies of Middle Smithfield Township.

(6) After several years of sporadic confrontations between plaintiff, M. Fred May, and Defendant, John F. Petrizzo Jr., the plaintiffs filed a complaint on March 19, 2009, claiming title to approximately 6400 square feet, most of which lie in the Township right-of-way, but a minute portion of 839 square feet being part of the Petrizzo tract on the north side of Township Route 542.

II. DISCUSSION

The genesis of the current proceeding is an action docketed in this court by John F. Petrizzo Jr. v. Michael Fred May, at no. 4990 Civil 2002 and 2815 Civil 2003. That proceeding was a tort action in which Petrizzo sought damages from May for, inter alia, interference with contractual relations to sell the Petrizzo premises to a developer. In October, 2008, a jury rendered a verdict in favor of John F. Petrizzo Jr. and against Michael Fred May, et al., in the amount of $125,000. Following denial of post-trial motions on May 21, 2009, the May defendants filed an appeal with the Superior Court of Pennsylvania. That appeal is still pending.

On March 19, 2009, M. Fred May, Debra J. May Rawding and Cindi May Conley, commenced an action to quiet title against John F. Petrizzo Jr. Following preliminary objections and the filing of an amended complaint, the defendant filed an answer and new matter. The plaintiffs filed a reply to new matter. The issue in the proceeding is the ownership of an 839 square foot piece of land on the north side of the Township Route 542, which plaintiffs contend they own, and defendant contends that it remains part of his larger parcel of land. Trial of the proceeding was held before this court, sitting without a jury, in accordance with the provisions of Pa.R.C.P. 1067 on July 15 and 16, 2010. Both sides presented the testimony of professional surveyors, independently engaged by them following commencement of the prior litigation between the parties, who testified as to varying interpretations of surveys performed by them. The plaintiffs’ surveyor testified that indeed the plaintiffs do own the 839 square foot parcel of land which is part of the Petrizzo tract on the north side of Township Route 542. The defendant’s surveyor testified that the boundary line between the parties’ land is the centerline of Township Route 542 and, therefore, the plaintiffs’ claim is without merit. While both surveyors were well qualified to express their opinions, both opinions were somewhat discredited during cross-examination by opposing counsel.

However, we need not choose between the expert surveyors retained for purposes of litigation, because there is a third surveyor who gave very credible testimony. Frank J. Smith Jr. was engaged independently by the predecessors in title of both parties in 1990 to perform survey work and prepare subdivision and land development plans. In both these plans prepared separately and approved by the predecessors in title of the present parties, Frank J. Smith Jr. found the boundary line between the parties’ premises to be within Township Route 542. This survey work was done long before the neighborhood dispute arose between the parties at the bar. No one challenged its accuracy and the predecessors of the present parties certified that the boundary line and the maps submitted to the township for approval were correct. Therefore, we conclude that the most credible opinion presented at trial was that of Frank J. Smith Jr. and we accept his demarcation of the boundary line between the parties as being within Township Route 542.

In addition, there is ample legal authority to support this conclusion. When a boundary is described as along a road, the boundary is the center line of the road. Firm- stone v. Spaeter, 150 Pa. 616 (1892). “If the land is described as ‘bounded on,’ ‘running along’ the highway and the like, the boundary line is the centre of the highway, although the dimensions of the lot would exclude the highway; and in all cases of doubt the presumption is always in favor of the boundary being in the centre of the road.”

“Where a street is called for as a boundary the middle line of the street is always intended unless the contrary plainly appears.” Firmstone, holding it “is clear that where the tract is bounded by the streets, the line is in the centre of them, and it is equally clear that the survey called for by the agreement must be in conformity with it.”

While this is ancient precedent by the Supreme Court of Pennsylvania, neither party has offered any more recent authority to contradict the aforesaid holding. More recently in Fleck v. Universal-Cyclops Steel Corporation, 397 Pa. 648, 156 A.2d 832 (1959), the court held that it is well-settled that a grant of land bounded by or abutting on a public highway is presumed to carry the fee to the center line of such highway or easement.

In an action to quiet title, plaintiffs have the burden of proof by establishing the accuracy and strength of their own title. Albert v. Lehigh Coal and Navigation Company, 431 Pa. 600, 246 A.2d 840 (1968). In this proceeding, the plaintiffs have failed to meet their burden.

III. CONCLUSIONS OF LAW

(1) The boundary line between the premises owned by the plaintiffs and the defendant is within Township Road 542, as depicted on the subdivision plan prepared by Frank Smith Jr. and approved by Adelaide F. May on March 14,1990; approved by the Planning Commission of Middle Smithfield Township and the Board of Supervisors of Middle Smithfield Township and recorded in the Office of the Recorder of Deeds in and for Monroe County, Pennsylvania.

(2) Plaintiffs have failed to meet their burden of proof.

VERDICT

And now, July 23,2010, the court finds in favor of the defendant, John F. Petrizzo Jr. and against the plaintiffs, M. Fred May, Debra J. May-Rawding and Cindi May Conley, with costs assessed against the plaintiffs.


author: DiVITO, J,

text:
    Gilmore v. Logan

      Kenneth M. Kapner, for plaintiff.

      Therese Tallarico Schweikert, for defendants.
    July 29, 2010
   DiVITO, J,

Plaintiff appeals from an order issued by this court on March 2, 2010, granting defendant’s motion for summary judgment. The case involved a personal injury suit stemming from a car accident on January 7,2007, between plaintiff Crystal Gilmore and defendants Tracy Logan and Deveh Ramsey. On June 8, 2009, plaintiff filed a suit for damages resulting from this incident. Defendants filed a motion for summary judgment, on the grounds that 42 Pa.C.S. §5524(2) mandates a two-year statute of limitations for filing actions to recover for personal injuries. On March 2,2010 defendant’s motion was granted because plaintiff failed to bring her action within the required limitations period.

Plaintiff argues that the court erred in granting the motion for summary judgment because disputed issues of fact and law existed. Plaintiff’s 1925(b) statement does not, however, provide clarification of the errors complained of, or specify which matters are believed to be in dispute. The primary arguments put forth against granting the motion seem to be that: (1) the New Jersey “verbal threshold” limitations on causes of action were akin to Pennsylvania “limited tort” options; (2) because of this equivalency, the discovery rule exception which can toll the statute of limitations is applicable; and (3) plaintiff’s injuries were of the kind that would satisfy the discovery rule.

An examination of cause of action limitations and their equivalence, as well as the application of the discovery rule is unnecessary, because even if both are applicable, plaintiff’s injuries were not the kind that would trigger the exception. The underlying basis of the discovery rule is to protect individuals who are injured but unable to bring a cause of action from losing their opportunity due to the statute of limitations. This might occur because of limitations on bringing an action such as New Jersey’s “verbal threshold” or Pennsylvania’s “limited tort”, or if a plaintiff does not know that he or she is injured, and that such injury was caused by another’s actions. Haines v. Jones, 830 A.2d 579, 585 (Pa. Super. 2003) (citing, Bradley v. Ragheb, 429 Pa. Super. 616, 621, 633 A.2d 192, 194 (1993)).

Pennsylvania’s limited tort option requires that a person sustain a “serious injury” in order to have a cause of action. 75 Pa.C.S. §1705(d). “Serious injury” is defined as “[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa.C.S. §1702. Plaintiff’s own complaint and filings list numerous injuries including spinal disc herniations, contusions, chondromalacia patella, and potential nerve damage. Plaintiff claims that her injuries did not pass the threshold until after June 8,2007, when they stopped improving via the course of treatment she had been undergoing. Whatever this course of treatment was, it is logical that if it resulted in some improvement, yet left her injuries serious enough to pass the threshold, then her injuries at the onset were worse, and so could have passed the threshold at the time the injury was sustained.

Unlike the injury in Walls v. Sheckler, 700 A.2d 532 (Pa. Super. 1997), which became worse over time, thus allowing the discoveiy rule, plaintiff’s injury was present, serious, and obvious enough for a course of treatment from the beginning. It follows then that plaintiff cannot argue that she did not know of her injury, or that it was caused by another’s actions. The record indicates that she had an MRI which showed new spinal disc bulging approximately one month after the accident. See pl.’s depo. transen 48:24-49:10, 52:19-53:1. Plaintiff also testified that she had immediate impairment of ability following the accident. Id. 63.5- 66:18.

Plaintiff’s injuries would not have been barred by “verbal threshold” or “limited tort”, they were serious and known by the plaintiff. Accordingly, the order in this matter should be affirmed.


author: PICCIONE, J,

text:
    Mick v. Biggart

      C.P. of Lawrence County,
    no. 10160 of 2006, CA.

      Bradley G. Olson Jr., for plaintiff.

      Jason A. Hines, for defendant Biggart.

      Katie Killion, for defendant Batts.

      Douglass R. Klaber Jr., for additional defendant Elsbury.

      Michael Karaffa, for defendant Ontario Inc. and Brown.
    August 4, 2010
   PICCIONE, J,

Before the court for disposition is defendant Robert Biggart’s motion for summary judgment. This action arises out of a multiple-vehicle accident that occurred on February 5, 2004 at approximately 7 p.m. Plaintiff Leon Mick Jr. was traveling west on the Pennsylvania Turnpike in a vehicle operated by additional defendant Holly L. Elsbuiy. Defendant William Batts, who was driving immediately in front of Mick and Elsbury, suddenly lost control of his vehicle, presumably due to black ice caused by the freezing rain that began falling shortly before the accident. As a result, Batts’s vehicle struck the northern guardrail, the medial barrier, and ultimately Elsbury’s car. Collisions with vehicles operated by defendant Robert Biggart and additional defendant Donald Brown occurred shortly thereafter. Mick suffered several injuries as a result of the accident.

On January 30,2006, Mick initiated a lawsuit naming Biggart and Batts as defendants. Biggart subsequently joined Elsbury, Brown, and Ontario Inc. as additional defendants in the lawsuit. On May 10, 2006, Mick filed a complaint containing two counts of negligence, one against Batts and the other against Biggart. After numerous pleadings were exchanged and depositions were taken, Biggart filed the instant motion for summary judgment on January 22, 2010, claiming that he did not cause the accident or Mick’s injuries. The court heard oral argument regarding Biggart’s motion on June 28, 2010.

Under Pennsylvania law, the standard for summary judgment is set forth by Rule 1035.2 of the Pennsylvania Rules of Civil Procedure. The rule states that:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summaiy judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

The moving party bears the burden of proving that no genuine issue of material fact exists. Rush v. Philadelphia Newspapers Inc., 732 A.2d 648, 650 (Pa. Super. 1999). In determining whether summaiy judgment is appropriate, the trial court is required to view the record in a light most favorable to the non-moving party, and “all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party.” P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999) (citing Kapres v. Heller, 536 Pa. 551, 640 A.2d 888 (1994)). Atrial court should only grant a motion for summary judgment when the facts of record are so clear that reasonable minds could not disagree on the outcome. Basile v. H & R Block Inc., 563 Pa. 359, 365, 761 A.2d 1115, 1118 (2000) (citing Cochranv. GAF Corp., 542 Pa. 210, 215, 666 A.2d 245, 248 (1995).

“A proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury.” McCarthy v. Dan Lepore Sons Co. Inc., 724 A.2d 938, 940 (Pa. Super. 1998). “[I]f a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action.” Basile v. H & R Block Inc., 777 A.2d 95, 100 (Pa. Super. 2001). Therefore, if a plaintiff fails to present sufficient evidence of any element of the cause of action, the defendant is entitled to judgment as a matter of law. Ertel v. Patriot-News Company, 544 Pa. 93, 101, 674 A.2d 1038, 1042 (1996).

The basic elements of a negligence action are: (1) a duty or obligation recognized by law; (2) a subsequent breach of such duty; (3) an actual injury or damage suffered by the plaintiff; and (4) a causal connection between such injury or damage and the breach of the duty. Lux v. Gerald E. Ort Trucking Lnc., 887 A.2d 1281, 1286 (Pa. Super. 2005). Failure to establish one of the elements of negligence is valid grounds for summary judgment. McMahon v. Pleasant Valley West Association, 952 A.2d 731, 735 (Pa. Commw. 2008). The mere existence of negligence and the occurrence of an injuiy are insufficient to impose liability as there remains to be proved the link of causation. Taylor v. Jackson, 164 Pa. Commw. 482, 490, 643 A.2d 771, 775 (1994). Whether a defendant’s negligence is the cause of an accident is ordinarily a question for the fact-finder, but, if the relevant facts are not in dispute, the question becomes one of law. Behney v. Bolich, 986 A.2d 944, 946, n.1 (Pa. Commw, 2009). The court must then evaluate the facts and refuse to find an actor’s conduct was the cause of the harm “when it appears to the court highly extraordinary that the actor’s conduct should have brought about the harm.” Holt v. Navarro, 932 A.2d 915, 921 (Pa. Super. 2007) (citing Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863, 868 (Pa. Super. 2000)).

Biggart argues that he did not cause Mick’s injuries because he never impacted Mick’s vehicle or caused another vehicle to impact Mick’s vehicle. In support of this contention, Biggart cites the depositions of Mick, Batts, and Elsbury. Mick testified that he could not recall being hit by any vehicles other than a “yellow car” and a “semi.” Mick dep., 10/19/07. Because Biggart was driving a green SUV during the accident, Mick’s testimony suggests that Biggart never struck Mick’s vehicle. Elsbury’s account of the accident also did not include anything about a green SUV hitting their vehicle. Elsbury dep., 2/11/09, at 18. Although it is undisputed that Biggart’s vehicle eventually collided with Batts’ vehicle, Batts’ testimony indicates that the impact with Biggart’s vehicle occurred approximately 30 to 40 seconds after Batts collided with Mick’s vehicle and came to a stop. Batts dep., 6/5/08, at 13. Therefore, the accident involving Batts and Biggart could not have caused the collision between Batts and Mick.

Mick acknowledges that the statements of the deposed witnesses tend to show that Biggart did not cause Mick’s injuries. Nevertheless, Mick argues that the police report and statement by witness John Adams indicate that Biggart did cause his injuries, thereby creating an issue of material fact. The court, however, regards the police report and witness statement as consistent with the depositions of Mick, Batts, and Elsbury on the issue of whether Biggart caused Mick’s injuries. The police report, in pertinent part, reads as follows:

“A sudden change in weather conditions occurred glazing roadway with black ice. [Batts] lost control of [his vehicle] and left the roadway. The right rear of [Batts’s vehicle] impacted with the northern guardrail. After initial impact [Batts’s vehicle] crossed over the right and left lanes and had secondary impact with it’s left front against the medial barrier. After secondary impact [Batts’ vehicle’s] right side had third impact with the left side of [Elsbury’s and Mick’s vehicle]. After third impact [Batts’ vehicle] was struck with a fourth impact in the rear with the front of [Biggart’s vehicle]. [Elsbury’s and Mick’s vehicle] after being struck by [Batts’ vehicle] crossed over the left lane and had secondary impact with its left rear against the medial barrier. After [Elsbury’s and Mick’s vehicle] had secondary impact, it crossed over left lane and had a third impact with its direct front against the left side of [Brown’s vehicle].-...
“Witness John Adams was interviewed at scene by this officer at 2005 hrs on 02/05/04. Mr. Adams stated that a green SUV had passed him on the left doing about 60 m.p.h. The green SUV then slammed into the rear of the car. After all the motion stopped the green SUV left.” Mick’s exhibit A.

The witness statement of John Adams provides a similar account of the accident.

“As I was going west on 76 in PA I saw a green SUV pass me at a high rate of speed. As soon as I toped [sic] the hill I saw the same SUV slam into the rear of a vehicle and there were cars all over the place. A yellow car was spinning out from under another trucks [sic] trailer. People started jumping out of vehicles and running across the roadway.” Id.

Neither the police report nor the witness statement mentions any collision between Biggart’s and Mick’s vehicles or any action by Biggart that caused further injury to Mick. Instead, the report and statement indicate that Biggart struck one vehicle. As it is undisputed that Biggart collided with Batts, that collision is no doubt the collision that the report and statement referenced. Mick presents no other evidence tending to show that Biggart caused his injuries. Because Mick has failed to produce evidence of facts essential to a negligence cause of action, namely, that Biggart’s negligence was a substantial factor in causing Mick’s injuries, Mick cannot support a negligence claim against Biggart. Therefore, Biggart’s motion for summary judgment must be granted.

Mick argues in the alternative that additional discovery may still yield evidence and issues of material fact. To show that Biggart agrees, Mick offers copies of letters written between one and two years ago in which Biggart attempts to schedule depositions of witnesses which, for various reasons, were never conducted. The most recent letter is dated June 30,2009. Since that time, Biggart and Mick have demonstrated their belief that no additional discovery is necessary. For example, Biggart did not attempt any further discovery after June 30,2009. Instead, he filed the instant motion for summary judgment. In letters dated April 6,2009 and October 14,2009, respectively, Mick indicated that the completion of discovery was near and that the case was ready for trial. Mick has not requested any additional discovery since that time and does not now make any requests for information or depositions. Because both parties have expressed no desire to conduct further discovery, there is no reason not to issue a decision on Biggart’s motion.

ORDER

And now, August 4, 2010, the court having held oral argument on June 28, 2010 regarding defendant Robert Biggart’s motion for summary judgment, with Bradley G. Olson Jr., Esquire, representing the plaintiff Leon Mick Jr., and Jason A. Hines, Esquire, representing the defendant Robert Biggart, and Katie Killion, Esquire, representing the defendant William Batts, and Douglass R. Klaber Jr., Esquire, representing the additional defendant Holly A. Elsbury, and Michael Karaffa, Esquire, representing the additional defendants Ontario Inc. and Donald Brown, and after a complete and thorough review of the record, it is hereby ordered and decreed as follows:

(1) Defendant Robert Biggart’s motion for summary judgment is granted pursuant to the attached opinion.

(2) The prothonotary shall properly serve notice of this order and attached opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the courts file.


author: COX, J,

text:
    Clavelli v. Ferrotech Corp.

      C.P. of Lawrence County,
    no. 10251 of 2008.

      Phillip L. Clark Jr., for plaintiffs.

      Paul Lynch, for defendant.
    August 5, 2010
   COX, J,

Before the court for disposition is the petition for preliminary injunction filed on behalf of the plaintiffs Joseph L. Clavelli and Victoria C. Lauro, t/d/b/a Clavelli and Lauro Management Company, which argues that the defendant Ferrotech Corporation should be enjoined from utilizing a procedure for breaking iron and steel that includes dropping a large metal sphere because that procedure causes noise and vibrations that violate City of New Castle Zoning Ordinance section 1329.07. Moreover, that procedure constitutes a private nuisance and affects the daily business operations of the lessees of the plaintiffs’ facility.

Joseph L. Clavelli and Victoria C. Lauro are doing business as Clavelli Management Company with its principal place of business located at 104 Margaret Street, New Castle, Lawrence County, Pennsylvania. Ferrotech Corporation is a Delaware corporation located at 526 South Jefferson Street, New Castle, Lawrence County, Pennsylvania, which is a metal scrapping business. The subj ect of this litigation is a procedure used by F errotech that includes the cutting and breaking of large metal objects by dropping a heavy metal sphere onto the metal objects and breaking them into smaller pieces.

Joseph L. Clavelli and his sister, Victoria Lauro, are the owners of property located at 104 Margaret Street, New Castle, Pennsylvania, which is adjacent to the Ferrotech facility. Mr. Clavelli purchased the property in 1968, sold the same in 1988 and purchased the property again approximately one year later. When Mr. Clavelli initially purchased the land he asserts it was zoned commercial and he constructed a building on the premises in 1969, which was the office of Vocational Rehabilitation. However, Mr. Clavelli testified that the land was rezoned to industrial or light industrial by 1988, which was before he purchased the property for the second time at a sheriff’s sale in 1989. It is important to note that, subsequently, the parties have stipulated that the Plaintiffs’ building is located in an area that has always been zoned as heavy industrial and was never zoned as commercial. The tenants of the building are the office of Vocational Rehabilitation, PA Career Link and the Pennsylvania Department of Health. Mr. Clavelli has received complaints regarding the loud noise and vibrations caused by Ferrotech dropping the metal sphere. It must be noted that the Pennsylvania Department of Health entered into a new lease with Mr. Clavelli, but it was contigent upon Mr. Clavelli’s assurance that he was pursuing an injunction to prevent Ferrotech from dropping the metal sphere.

In response to the Plaintiffs’ petition for preliminary injunction, the parties entered into extensive negotiations and reached a temporary agreement. As a result, the court issued an order dated April 11, 2008, which restricted the times that Ferrotech could drop the metal sphere. That order stated that Ferrotech could utilize the metal sphere dropping procedure from Friday evening at 6 p.m. until Monday morning at 7 a.m., and from 9 p.m. until 7 a.m., Monday through Thursday. On July 9, 2008, the court modified that court order to permit Ferrotech to drop the metal sphere from Friday evening at 5:30 p.m. until Monday morning at 7:30 a.m., and from 8 p.m. until 7:30 a.m., Monday through Thursday. Again, on March 5, 2009, the court modified its order to permit Ferrotech to drop the metal sphere until 9 a.m., Monday through Friday and from 12 noon until 1 p.m. Monday through Friday.

At the evidentiary hearing held by this court on July 3, 2008, the plaintiffs provided the testimony of Kathy DeCaprio, who is a registered nurse for the Pennsylvania Department of Health and is employed at 106 Margaret Street, New Castle, Pennsylvania. She testified that she heard loud shattering noises coming from the direction of the Ferrotech facility during her normal working hours of 8 a.m. to 4 p.m. She has had pictures and clocks fall from the wall due to the vibrations. Ms. DeCaprio stated that the noises occurred as frequently as every five minutes. They often have to inform members of the public about the noises or calm them down after they hear the loud crashing sound. She also informed the court that the disruptions ceased for approximately one month after the court’s April 11, 2008, order, but they soon began occurring again.

Celeste Dute, who also testified at that hearing, is employed by the Pennsylvania Department of Labor and Industry, Office of Vocational Rehabilitation as a district administrator and her place of employment is located at 100 Margaret Street, New Castle, Pennsylvania. She explained that the building shakes periodically and they frequently have to inform business invitees that they should not be alarmed by the shaking building. Ms. Dute stated that the vibrations emanate from the Ferrotech facility. She did not notice anything moving within her office, but could feel the ground vibrating underneath her feet. She also mentioned that Ferrotech dropped the metal sphere on April 28, 2008, which was subsequent to the April 11, 2008, court order.

Eileen Marie Borrelli, who is employed as a Career Link advisor for PA Career Link, which is located at 102 Margaret Street, New Castle, Pennsylvania, testified that the building where she is employed is located behind or directly across the parking lot from the Ferrotech Corporation. She recalled an incident when she could feel vibrations, “like an earthquake”, when they would drop the large metal sphere at Ferrotech, which was a different company at that time. She could hear a loud “boom” when the ball was dropped and could feel the movement or vibration under her feet. Ms. Borelli expressed some concern for the Career Link equipment and computers due to the vibrations caused by Ferrotech dropping the metal sphere. She also stated that three flags in her office often become askew from the vibrations. She further testified that Ferrotech has dropped the ball between the hours of 7:30 a.m. and 9 a.m. after the court issued the April 11, 2008, court order. It must be noted that Ms. Borrelli indicated that there are vibrations emitted from the movement of nearby trains, but they are not to the extent of the vibrations caused by the dropping of the metal sphere at Ferrotech.

On July 3, 2008 and March 9, 2009, Charles S. Barletto, who is the vice president of business development for Ferrotech, testified before this court. He stated that Ferrotech would hoist a 6- or 9.3-ton forged steel ball or sphere above oversized pieces of steel or iron and then drop the sphere to break the pieces into smaller sized pieces which could be loaded onto trucks or rail cars for shipment to customers. Mr. Barletto informed the court that Ferrotech’s gross annual sales are approximately $50,000,000 or $60,000,000. However, he testified that if Ferrotech was not permitted to utilize the sphere dropping procedure, it would lose a significant amount of money and it may not be able to compete with other businesses. He also explained that the crane used to lift the metal sphere is also used to move 30-ton pieces of steel or iron on the premises. He stated that the vibrations which occurred after the April 11,2008, court order could have been caused by the dropping of a 30-ton piece of metal, which would make a louder noise and more vibrations than the 6- or 9.3-ton metal sphere. He also informed the court that Ferrotech’s production has been slowed due to the imposition of the April 11,2008, court order. Mr. Barletto admitted that Ferrotech dropped the metal sphere five times at 2 p.m., even though the April 11,2008, order prohibited the same, because he was trying to decipher a way to soften the impact of dropping the sphere to reduce noise and vibrations. It must be noted that he did so without informing Mr. Clavelli or the court. Mr. Barletto indicated that Ferrotech no longer has a crew working at nights and is no longer dropping the metal sphere. However, he stated that if they would drop the metal sphere it would have to occur between the hours of 7 a.m. to 4 p.m. and it would have to be dropped between 20 to 50 times.

On January 6,2009, the plaintiffs provided the expert testimony of Kenneth K. Eltschlager, who is employed by Keystone Engineering located in McMurray, Pennsylvania. Mr. Eltschlager obtained a Bachelor’s of Science degree in mining engineering from West Virginia University and worked for Mountain State Surveying in Preston County, West Virginia. He was subsequently employed by SRW Associates doing coal mine-permitting work and moved to the state of Maryland to work for the Maryland Bureau of Mines. He was also employed by the U.S. Department of Interior, the office of Surface Mining Reclamation Enforcement as a mining engineer working with blasting and explosive-related issues. Mr. Eltschlager observed and recorded the vibrations on the plaintiffs’ property as a result of the metal sphere being dropped. He installed three blasting seismographs, which monitor vibrations on the property, one in the office of Vocational Rehabilitation and two at the Pennsylvania Department of Health facility. It must be noted that one of the monitors was placed on the wall in the Pennsylvania Department of Health facility, the other monitors were placed on the floor. The monitor on the wall gauged whether there was any damage occurring to the building itself and the floor monitors gauged the impact of the incoming vibrations on the floor and the effect it would have on people. The vibration levels were measured by the waves of energy that went into a given location and the reports were made by providing the peak particle velocity or “PPV”. Any measurement below 20 hertz is considered a low frequency vibration, which has the strongest impact on people. The highest recorded PPV at the Office of Vocational Rehabilitation was .12 inches per second and it had a frequency of 7.6, which was the closest side to the Ferrotech facility. The American National Standards Institute (ANSI) has set forth standards for reviewing vibration levels and what level of vibration would be noticeable or disturbing to occupants. Mr. Eltschalger has opined that the lowest perceivable vibration for human perception in an office environment is approximately .052 inches per second. Mr. Eltschlager measured two events at the office of Vocational Rehabilitation that exceeded the ANSI standards for an office environment. Utilizing the ANSI standard, Mr. Elschlager opined that the vibrations, especially those events that registered above .1 inch per second, are significant enough to startle someone on the plaintiffs’ property.

On March 9, 2009, the defendant provided the expert testimony of W. Gregory Love, who has a Bachelor of Science degree in geology from Penn State University and a Bachelor’s degree in science education from the University of Wyoming. He worked almost 19 years with Vibra-Tech Engineers, a consulting firm specializing in industry vibration problems and concerns, and regularly monitored and inspected vibrations or noise from blasting, construction, pile-driving and ball drops. In 1997, he was asked by Mr. Barletto to monitor the effects of the ball drops at the facility on the neighboring structures. Mr. Love also used standard blasting seismographs and monitored the vibrations within the Ferrotech facility and worked his way out to the Office of Vocational Rehabilitation. He compared the readings from the seismographs to the standards developed by United States Bureau of Mines that were created to address blasting complaints. Mr. Love’s intent was to determine if the frequency and vibrations caused by dropping the metal ball would cause physical structural damage to surrounding buildings. His conclusion was that the vibration levels created by the dropped balls were of insufficient magnitude to cause structural damage to the plaintiffs’ building.

The court must now determine whether a preliminary injunction restricting Ferrotech’s use of the ball dropping procedure is appropriate. The courts of equity have the power to issue injunctions to prevent the commission or continuance of acts that prejudice the interests of an individual, the community or the public generally. Bruhin v. Commonwealth, 14 Pa. Commw. 300, 304-305, 320 A.2d 907, 910 (1974) (citing Rankin v. Chester-Upland School District, 11 Pa. Commw. 232, 312 A.2d 605 (1973)). The party seeking a preliminary injunction must establish the following six prerequisites:

“(1) that the injunction is necessary to prevent immediate and irreparable harm that cannot be adequately compensated by damages;
“(2) that greater injury would result from refusing an injunction than from granting it, and concomitantly, that issuance of an injunction will not substantially harm other interested parties in the proceedings;
“(3) that a preliminary injunction will properly restore the parties to their status as it existed immediately prior to the alleged wrongful conduct;
“(4) that the activity it seeks to restrain is actionable, that its right to relief is clear, and that the wrong is manifest, or, in other words, must show that it is likely to prevail on the merits;
“(5) that the injunction it seeks is reasonably suited to abate the offending activity; and
“(6) that a preliminary injunction will not adversely affect the public interest.” Warehime v. Warehime, 580 Pa. 201, 209-210, 860 A.2d 41, 46-47 (2004).

The party seeking the preliminary injunction bears the burden of establishing each of the aforementioned elements. Id. It is important to note that an injunction is an extraordinary remedy and it should be issued with caution in cases where the plaintiff’s right to equitable relief is clear and free from doubt, and where the harm to be remedied by the injunction is great and irreparable. Big Bass Lake Community Association v. Warren, 950 A.2d 1137, 1144 (Pa. Commw. 2008). The requisites of a preliminary injunction are cumulative and if one element is lacking then relief may not be granted. Leonard v. Thornburgh, 75 Pa. Commw. 553, 563, 463 A.2d 77, 82 (1983).

A court of equity may enj oin an otherwise lawful business when its operation is so unreasonable that it creates a nuisance. Dexter v. Bebenek, 458 Pa. 1, 2, 327 A.2d 38, 39 (1974) (citing Guarina v. Bogart, 407 Pa. 307, 180 A.2d 557 (1962); Reid v. Brodsky, 397 Pa, 463, 156 A.2d 334 (1959)). “A nuisance is the invasion of another’s interest in the use and enjoyment of his land.” Harford Penn-Cann Service Inc. v. Zymblosky, 378 Pa. Super. 578, 582, 549 A.2d 208, 209 (1988) (citing Restatement (Second) of Torts, §822 (1979)). That invasion must cause significant harm and that harm must be more than a slight inconvenience, which means there must be “a real and appreciable interference with the plaintiff’s use or enjoyment of his [or her] land.” Id.

The court in McKees Rocks Borough v. Rennekamp Supply Co., 344 Pa. 443, 25 A.2d 710 (1942), addressed the issue of enjoining a lawful business from operating due to the business causing a nuisance to a residential neighborhood. The plaintiffs in McKees Rocks Borough were the residents of a neighborhood that was purely residential in character, except for the defendant’s block concrete manufacturing business. The process of producing concrete blocks causes loud clanking noises, which is heard and the vibrations transmitted to the plaintiffs’ houses. Damages to those homes included: cracking of plaster, pillars moved out of alignment and the rattling of doors. Additionally, the noise and vibration prevented the plaintiffs from sleeping and interrupted their peaceful enjoyment of their homes. The trial court issued a permanent injunction, which prevented the defendant from continuing its business. The defendant appealed that decision. The Pennsylvania Supreme Court affirmed the ruling of the trial court.

Initially, the McKees Rocks Borough court noted the defendant’s argument that the concrete block manufacturing business was lawful and it employed a number of people within that community. Id., 344 Pa. at 445, 25 A.2d at 711. However, the court reasoned that the business was being conducted in an otherwise purely residential area, the plaintiffs acquired their homes prior to the establishment of the business and the manufacturing of concrete block caused damage to those homes. Id., 344 Pa. at 445-46, 25 A.2d at 711. Therefore, the court ruled that the trial court properly enjoined the defendants from manufacturing concrete block. Id.

Also in Firth v. Scherzberg, 366 Pa. 443, 77 A.2d 443 (1951), the plaintiff sought to enjoin the defendants and the defendant’s lessee from utilizing the property as terminal parking for tractor-trailer trucks. Initially, the defendants purchased property to use as storage for tractor-trailer trucks. Approximately eight years later, the defendants purchased an adjoining piece of property and erected a large garage used to further conduct their business. The next year, the City of Philadelphia enacted a zoning ordinance which restricted the use of property within that designated area as a residential zone. The defendants continued to conduct their business on that property until they leased the premises to another individual to be used for similar purposes. It must be noted that the property was utilized for storage, the defendants and the lessee did not unload or load freight or conduct garage work on the premises. However, the chancellor determined that the coupling and uncoupling of tractors and trailers, the noise caused by warming up the large tractor motors, their acceleration, charging of tractor batteries, and the sound of the air brakes and the shifting of gears disrupted the sleep of surrounding residents and the peaceful enjoyment of their homes. Thus, the chancellor issued an injunction limiting the lessee’s use of the facility. The lessee appealed and the Pennsylvania Supreme Court affirmed the chancellor’s decision, but modified the injunction to prevent the lessee from conducting business on the property between the hours of 8 p.m. to 7 a.m.

The Firth court stated, “Noise which constitutes an annoyance to a person of ordinary sensibility to sound, so as to materially interfere with the ordinary comfort of life and to impair the reasonable enjoyment of his habitation to him, is a nuisance.” Id., 366 Pa. at 447, 77 A.2d at 445 (citing Baker v. Moore, 311 Pa. 38, 166 A. 362 (1933)). The court noted that the plaintiff’s sole actionable claim is that the lessee’s business deprived them of sleep at night; however, there were no facts that the business caused disruption during the daytime. Id., 366 Pa. at 447, 77 A.2d at 446. Additionally, the Firth court noted that the chancellor’s finding that the trucking business was unlawful in a residential area and constituted a nuisance per se was incorrect as the business existed prior to the rezoning of the area to residential and the noise merely caused disruption during the night. Id. Thus, the chancellor’s determination was not supported by the evidence of record. Id. As a result, the Pennsylvania Supreme Court held that the lessee was enjoined from conducting business between the hours of 8 p.m. to 7 a.m. to prevent any sleep deprivation caused by the noise and lights from the tractor-trailers. Id., 366 Pa. at 450, 77 A.2d at 447.

In the case sub juice, there were several evidentiary hearings held by this court, in which the plaintiffs provided the testimony of several individuals who are employed at the facility owned by the plaintiffs, all of whom testified to the adverse effects that Ferrotech’s metal sphere dropping procedure had on the plaintiffs’ facility. First, Kathy DeCaprio, an employee of the Pennsylvania Department of Health, testified regarding the loud noises emanating from the Ferrotech facility and that the vibrations often caused pictures and clocks to fall off of the wall. She also stated that the noises occurred as frequently as every five minutes and she often had to inform members of the public about the noises or calm them down after they heard the loud crashing sound.

Next, Eileen Marie Borrelli, an employee of PA Career Link testified that she could feel vibrations, “like an earthquake”, when the large metal sphere at Ferrotech would drop. She also stated that she could hear a loud “boom” when the ball was dropped. She had concerns about the Career Link equipment and computers due to the vibrations caused by Ferrotech dropping the metal sphere. She further explained that she has three flags in her office and the vibration would cause them to become askew.

Moreover, Celeste Dute, an employee of the Pennsylvania Department of Labor and Industry, explained that the building shakes periodically and they frequently have to inform business invitees that they should not be alarmed by the building shaking. Ms. Dute stated that she could feel a vibration on the ground that emanated from the Ferrotech facility.

The court also recognizes that the both parties provided the testimony of expert witnesses. First, Kenneth K. Eltschlager testified on behalf of the plaintiffs and he opined that the vibrations caused by the metal sphere dropping procedure were significant enough to startle a person conducting business within the plaintiffs’ facility, Conversely, Ferrotech has provided the testimony of W. Gregory Love, who opined that the vibration levels caused by the metal sphere dropping procedure were of insufficient magnitude to cause structural damage to the plaintiffs’ facility. While it may be true that the vibrations do not cause serious structural damage to the facility, they are still perceivable by people working in an office environment and could cause apprehension among business invitees. That disruption could inhibit the manner in which the plaintiffs’ lessees conduct business and it could be cause for them to seek another facility.

The court must note that Ferrotech is engaged in a lawful business as its facility is located in an area that is zoned industrial. However, the City of New Castle has promulgated zoning ordinance section 132907, which requires that a business engaging in an industrial use that results in vibrations or excessive noise take reasonable steps to ameliorate the adverse effects of that activity. There is no mention on the record that Ferrotech employed or proposed any measures to reduce or eliminate the noise and vibrations caused by dropping the metal sphere, even though it previously consulted Mr. Love regarding any possible steps that could be made to ameliorate that problem. According to the decision in Mc-Kees Rocks Borough, supra, the court is permitted to enjoin an otherwise lawful activity, if the same interferes with the quiet enjoyment of adjoining properties. In that case, the vibrations caused by the concrete block manufacturing procedure caused damage to adjoining residences. Similarly, the vibrations caused by Ferrotech’s metal sphere dropping procedure caused pictures and clocks to fall from the wall at the plaintiffs’ facility and could possibly damage computers and other electronic equipment.

Additionally, the Firth court reasoned that the only actionable disruption in that case occurred during the night when the local residents had their sleep disrupted by the lessee’s trucking operation. As a result, the court held that the chancellor’s injunction preventing the lessee from conducting his business as a whole was too broad and the court imposed an injunction preventing the lessee from conducting business at night to remedy the plaintiff’s claims. In the current matter, the plaintiffs are merely asserting that the vibrations caused by Ferrotech’s metal sphere dropping procedure are disruptive to the daily business conducted on the premises between the hours of 8 a.m. to 5 p.m. As in Firth, the current order issued by the court permits Ferrotech to drop the metal sphere from 5:30 p.m. on Friday to 9 a.m. on Monday and 8 p.m. to 9 a.m. and 12 noon to 1 p.m., Monday through Friday. Thus, Ferrotech is not permitted to utilize that procedure during the peak working hours at the plaintiffs’ facility to reduce any possible interruptions to the plaintiffs’ current lessees. Conversely, Ferrotech is permitted to drop the metal sphere on weekends, nights, early mornings and for an hour starting at 12 noon Monday through Friday, so that it may continue to be productive under the current circumstances. The court is aware that Ferrotech usually employs its staff during normal business hours; however, it may be able to employ a limited staff at night and on weekends to drop the metal sphere during the hours permitted by the court. Additionally, the plaintiffs’ lessees may have to change meeting times or issue warnings to avoid startling business invitees that enter the premises prior to the hours set forth in the accompanying order of court.

Therefore, the court grants the plaintiffs’ petition for preliminary injunction, but Ferrotech is permitted to utilize the sphere dropping procedure as authorized in the order of court accompanying this opinion. This case may now proceed toward trial and, ultimately, the possible imposition of a permanent injunction. Pursuant to Pa.R.C.P. 1038.2, the parties or the court may make a motion or petition to submit this case to a jury, which would not be binding on the court but merely advisory to achieve an equitable resolution of the issues in this case. It must be noted that the court is amenable to further case management on this matter to aid the parties in reaching an efficient resolution of any outstanding issues.

For the reasons set forth in this opinion, the court grants the plaintiffs’ petition for preliminary injunction, but Ferrotech Corporation is permitted to drop the metal sphere as outlined by the court.

ORDER

Now August 5, 2010, this case being before the court on numerous occasions for a hearing on the petition for preliminary injunction filed by the plaintiffs, with both parties appearing, the plaintiffs, Joseph L. Clavelli and Victoria C. Lauro, partners, t/d/b/a Clavelli and Lauro Management Company, represented by counsel, Phillip L. Clark Jr., Esquire and the defendant, Ferrotech Corp., represented through counsel, Paul Lynch, Esquire and after hearings held, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) In accordance with the attached opinion, the petition for preliminary injunction filed by the plaintiffs is hereby granted as set forth in this order of court.

(2) The prior order of court and time schedule for the preliminary injunction as contained in the order of court dated March 5,2009, shall remain in full force and effect until modified or changed by further order of court.

(4) The prothonotary is directed to serve a copy of this order of court upon counsel of record, Phillip L. Clark Jr., Esquire and Paul Lynch, Esquire.


author: COX, J.,

text:
    Commonwealth v. Fazzolare

      C.P. of Lawrence County,
    no. 46 of 2010.

      Kathleen Fee-Baird assistant district attorney, for Commonwealth.

      Louis M. Perrotta, for defendant.
    August 25, 2010
   COX, J.,

Before the court for disposition is the omnibus pretrial motion filed on behalf of the defendant Robert John Fazzolare which consists of a motion for discovery, a petition for writ of habeas corpus, and a motion to suppress. The Commonwealth has supplied the requested materials to the defendant and the defendant is no longer contesting his motion for discovery. In his petition for writ of habeas corpus, the defendant argues that the Commonwealth has failed to present sufficient evidence to prove that the defendant committed the offenses of recklessly endangering another person and simple assault. More specifically, the Commonwealth did not prove that the defendant placed the victim in danger of death or serious bodily injury or that the defendant inflicted bodily injury upon the victim. In addition, the defendant claims that the photographic lineup identification was unreliable and prejudicial because the area in which this incident occurred was dark and the photographic array was unduly suggestive; thus, evidence of that identification should be suppressed.

On November 7,2009, the victim Nicholas DiCarolis, a student at Westminster College, walked from his residence at the Sigma Phi Epsilon fraternity house, which is located at 440 South New Castle Street, New Wilmington, Lawrence County, Pennsylvania, to a party at the Theta Chi fraternity house. The victim was accompanied by Sarah Parish and Salvatore Reino, and they arrived at the Theta Chi fraternity house at approximately 11:30 p.m. The victim began speaking with Elisa Fazzolare, a fellow student at Westminster College, to whom he admittedly made several disparaging remarks. Soon thereafter, the defendant, Ms. Fazzolare’s brother, confronted the victim regarding the comments that were made to Ms. Fazzolare. At approximately 1 a.m., the victim, Ms. Parish, Mr. Reino and other members of the Sigma Phi Epsilon fraternity left the Theta Chi fraternity house and began walking back to the Sigma Phi Epsilon fraternity house. As they approached the house, they heard a voice exclaim, “You can’t talk to my sister like that,” and someone punched the victim in the nose. The force of the blow caused the victim to fall to the ground and he began bleeding profusely. Mr. Reino, who witnessed the incident, explained that a white male, who was approximately six feet in height and weighed between 185 and 200 pounds, struck the victim in the face. Additionally, Mr. Reino recalled having a verbal altercation with another white male, stated that he was a marine.

The victim was disoriented, but saw a group of white males running through the Westminster College physical plant area towards campus. Subsequently, the victim was escorted to the Sigma Phi Epsilon fraternity house where the police were called. Officer Randall Russo of the New Wilmington Police Department received the call to investigate an alleged assault that occurred near the Sigma Phi Epsilon fraternity house. Once Officer Russo arrived, he observed the victim in the kitchen surrounded by other students. The officer quickly instructed everyone to exit the kitchen area and he called an ambulance for the victim, who was taken to Jameson Memorial Hospital and treated for a broken nose.

While interviewing students at the fraternity house, Officer Russo was informed by Rod Kennedy that he believed the victim was punched by the defendant. The officer determined that the defendant was residing at 305 Russell Hall on the Westminster College campus. Officer Russo went to Russell Hall and spoke with the defendant and his friend Andrew McFeaters. The defendant informed Officer Russo that he confronted the victim at the Theta Chi fraternity house, but denied any involvement in the later physical confrontation with the victim.

OnNovember 10,2009, at 11:33 p.m., Mr. Reino went to the New Wilmington Police Department police station to review a photographic lineup, which was constructed by Officer Russo utilizing six pictures received from J-Net. Officer Russo indicated that the pictures were chosen because they were white males with similar characteristics to the defendant, Mr. Reino quickly chose photograph number three, which was a picture of the defendant. Moreover, Ms. Parish was asked to participate in a photographic identification, which she did on November 19, 2009, and she positively identified photograph number three as well.

As a result, the defendant was charged with simple assault and recklessly endangering another person. On March 22, 2010, the defendant filed this omnibus pretrial motion seeking dismissal of the charges of simple assault and recklessly endangering another person. The defendant also contends that the photographic lineup identifications should be suppressed.

Apetition for writ of habeas corpus is the proper means for testing a pretrial finding that the Commonwealth has sufficient evidence to establish a prima facie case. Commonwealth v. Karlson, 449 Pa. Super. 378, 674 A.2d 249 (1996). In evaluating an accused’s entitlement to pretrial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out á prima facie case that the defendant committed the crime with which he or she is charged. Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943 (1999). This does not mean that the prosecution must prove the accused guilty beyond a reasonable doubt, but rather, the prosecution must establish “sufficient probable cause” that the accused has committed the offense. Commonwealth v. Prosdocimo, 331 Pa. Super. 51, 479 A.2d 1073 (1984).

The standard in determining whether a defendant is properly held for court is: (a) that the record reveals a prima facie showing that a crime or crimes has been committed; and (b) that the defendant was in some way legally responsible. Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 566 A.2d 246 (1989). The Commonwealth establishes a prima facie case when it produces evidence that, if accepted as true, would warrant the trial judge to allow the case to go to a jury. Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001). The prima facie case merely requires evidence of the existence of each element of the crime charged. Id. at 1180. Additionally, the evidence is to be reviewed in a light most favorable to the Commonwealth and the Commonwealth is entitled to reasonable inferences drawn from the evidence. Id. The weight and credibility of the evidence is not a factor at this stage, the Commonwealth need only demonstrate sufficient probable cause to believe the person charged has committed the offense. Id.

First, the defendant contends the Commonwealth failed to establish a prima facie case that the defendant committed recklessly endangering another person. Reckless endangering another person occurs when the defendant “engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. §2705. Moreover, serious bodily injury is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S. §2301. The Commonwealth bears the burden of establishing that the defendant attempted to cause the victim serious bodily injury. Commonwealth v. Matthew, 589 Pa. 487, 492, 909 A.2d 1254, 1257 (2006) (citing Commonwealth v. Alexander, 477 Pa. 190, 193, 383 A.2d 887, 889 (1978)).

In Alexander, 477 Pa. 190, 383 A.2d 887, the victim was standing on a sidewalk and he was struck in the face by the appellant. The victim fell to the ground and was not rendered unconscious by the blow. He was eventually taken to the emergency room and treated for a nose injury. The appellant attempted to flee after striking the victim, but was apprehended by a taxicab driver, who was an eyewitness, and a police officer. The appellant was convicted of aggravated assault at a bench trial. He filed post-trial motions that were denied and he was sentenced to a term of incarceration of nine months to 23 months. He appealed to the Pennsylvania Superior Court, which affirmed the trial court’s decision. Subsequently, he filed an appeal with the Pennsylvania Supreme Court, which reversed the order of the Superior Court affirming the judgment of sentence.

The Commonwealth admitted that the appellant did not cause the victim serious bodily injury, but argued that striking the victim in the face demonstrated an intent to cause serious bodily injury. Id., 477 Pa. at 193, 383 A.2d at 889 (See 18 Pa.C.S. §2702(a)(1). The Alexander court explained that a punch delivered to the face, without more, cannot support a finding that the appellant intended to inflict serious bodily injury upon the victim. Id., 477 Pa. at 194, 383 A.2d at 889. “Where the injury actually inflicted did not constitute serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to inflict serious bodily injury.” Id. (citing Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975); Commonwealth v. Fostar, 455 Pa. 216, 317 A.2d 188 (1974)). The Alexander Court reasoned that there were no circumstances to support a finding that the appellant garnered the requisite intent as there was not a major difference in size between the appellant and the victim, the appellant was not restrained from escalating his attack upon the victim, he did not have a weapon in his possession and he made no statements before, during or after the attack to indicate his intent to inflict further injury upon the victim, Id., 477 Pa. at 194, 383 A.2d at 889. Thus, the court held that there was insufficient evidence to support a conviction for aggravated assault. Id., 477 Pa. at 194-95, 383 A.2d at 889-90.

Also, the court in Commonwealth v. Moody, 295 Pa. Super. 106, 441 A.2d 371 (1982), held the Commonwealth failed to meet its burden that the defendant placed another in danger of death or serious bodily injury where the defendant forced a 12-year-old girl into a basement, struck her when she attempted to leave the basement and touched her in a vulgar manner.

In Moody, supra, the defendant accosted a 12-year-old girl while she was walking on the street in front of her home. The defendant forced the girl into the basement of a building and he molested her. During the encounter, the girl kicked the defendant in the groin and the defendant attempted to flee the building. As the defendant was leaving, the victim also attempted to exit the basement and the defendant struck her in order to keep her in the basement. The girl eventually exited the building and informed others of her situation. The defendant was apprehended after he attempted to drive away and he struck another vehicle. The defendant was convicted after a non-jury trial of attempted rape, indecent assault, simple assault, recklessly endangering another person and unlawful restraint. He subsequently appealed that decision arguing that the Commonwealth failed to provide sufficient evidence to support a conviction for attempted rape, recklessly endangering another person or unlawful restraint.

The court reasoned that the crime of recklessly endangering another person consists of reckless conduct that causes or results in a substantial risk of death or serious bodily injury. Id., 295 Pa. Super. at 112, 441 A.2d at 374 (citing Commonwealth v. Trowbridge, 261 Pa. Super. 109, 395 A.2d 1337 (1978)), The Moody court explained that it was unable to conclude that the evidence presented established that the defendant placed the victim in sufficient physical danger to support a conviction for recklessly endangering another person. Id.

In the case sub judice, the Commonwealth established that the defendant and the victim had a verbal confrontation at the Theta Chi fraternity house after the victim made disparaging remarks to the defendant’s sister. At approximately 1 a.m., the victim and his friends walked back toward the Sigma Phi Epsilon fraternity house where the victim resided. While in route to the house, the victim heard someone state, “You can’t talk to my sister like that,” and he was struck in the face by a white male, who was later described as being six feet tall and weighing between 185 and 200 pounds. Several days later, Mr. Reino and Ms. Parish identified the defendant as the person who punched the victim while viewing pictures in a photographic lineup. This evidence, if viewed in a light most favorable to the Commonwealth, establishes that the defendant was the person who struck the victim.

However, as the court in Alexander explained, a single punch to the face of a victim is not sufficient to prove that the defendant caused or had the intent to cause the victim serious bodily injury. In Alexander, the defendant struck the victim in the face, which rendered him unconscious and caused him to seek medical attention. The court recognizes that the Alexander case involves aggravated assault, not recklessly endangering another person, but the standard for serious bodily injury or intent to cause serious bodily injury remains the same for both crimes. Furthermore, in Moody, the defendant struck a 12-year-old girl in the face in an attempt to keep her trapped in the basement of an abandoned house. The Moody court held that a single punch was not sufficient to establish recklessly endangering another person. Similarly, the defendant in the current matter struck the victim in the face and caused him disorientation and a broken nose. Additionally, there did not appear to be a major size difference between the defendant and the victim. Clearly, the defendant did not attempt to inflict further injury upon the victim as well. It must be noted that the defendant did not attempt to strike the victim again and quickly fled the area where the incident occurred. Therefore, the Commonwealth has not presented sufficient evidence that the defendant engaged in conduct which placed the victim in danger of death or serious bodily injury.

Also, in his omnibus pretrial motion, the defendant argued the Commonwealth has failed to establish a prima facie case that he committed the offense of simple assault. It must be noted that the defendant did not assert this argument in his memorandum of law or during oral argument, but the court will address that contention at this time, A defendant has committed simple assault if he:

“(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
“(2) negligently causes bodily injury to another with a deadly weapon;
“(3) attempts by physical menace to put another in fear of imminent serious bodily injury; or
“(4) conceals or attempts to conceal a hypodermic needle on his person and intentionally or knowingly penetrates a law enforcement officer or an officer or an employee of a correctional institution, county jail or prison, detention facility or mental hospital during the course of an arrest or any search of the person.” 18 Pa.C.S. §2701(a).

In Commonwealth v. Richardson, 431 Pa. Super. 496, 636 A.2d 1195 (1994), the court determined that the appellant caused bodily injury to a police officer by striking in the face, breaking his glasses, causing him to stumble backwards and suffering physical discomfort for several days after the incident. In that case, the police officer was responding to a call regarding a domestic disturbance when he was punched in the face by the appellant. The blow broke the police officer’s glasses, he stumbled down a flight of stairs and suffered a sore jaw for a couple of days after the punch, but he did not require medical attention. The Richardson court stated that bodily injury is defined as “[ijmpairment of physical condition or substantial pain.” Id., 431 Pa. Super. at 498, 636 A.2d at 1196 (quoting 18 Pa.C.S. §2301). It must be noted that the Commonwealth need not prove that the appellant caused bodily injuiy, but can establish that the appellant committed simple assault by proving, from the circumstances of the case, that he intended to cause bodily injury. Id., 431 Pa. Super at 499, 636 A.2d at 1196 (citing Commonwealth v. Polston, 420 Pa. Super. 233, 616 A.2d 669 (1992)). The court ruled that the appellant'actually caused the police officer bodily injury as evidenced by the police officer’s testimony that the punch broke his glasses, caused him to stumble and he was in pain for the next few days. Id.

In the current matter, there has been testimony that the defendant struck the victim in the face causing him to fall to the ground and he was bleeding profusely from his nose. The victim was taken to the hospital and was diagnosed with a broken nose. As the court in Richardson indicated a single blow to the face, which causes pain or discomfort, is sufficient to establish the bodily injury requirement set forth in 18 Pa.C.S. §2701(a). Moreover, the broken nose suffered by the victim in this case was more severe than the sore jaw sustained by the police officer in Richardson. As a result, the Commonwealth has presented sufficient evidence to establish a prima facie case that the defendant committed simple assault.

Next, the defendant claims the photographic lineup was unduly suggestive because the pictures used contained individuals who had different physical characteristics than the defendant. A pretrial identification is admissible at trial as long as it was not obtained in violation of the defendant’s right to counsel or it was procured utilizing a procedure that was unduly suggestive and conducive to irreparable mistaken identification that would deny the defendant due process. Commonwealth v. Doa, 381 Pa. Super. 181, 553 A.2d 416 (1989). A photographic lineup is unduly suggestive if the procedure creates a substantial likelihood of misidentification. Commonwealth v. Fisher, 564 Pa, 505, 522, 769 A.2d 1116, 1126 (2001) (citing Commonwealth v. Johnson, 542 Pa. 384, 396-97, 668 A.2d 97, 103 (1995)). If an identification procedure is unduly suggestive and conducive to irreparable mistaken identification, the defendant is denied due process. Commonwealth v. Chmiel, 585 Pa. 547, 585, 889 A.2d 501, 523 (2005), “It is clear, then, that photographic identification of a person is unduly suggestive if, under the totality of the circumstances, the identification procedure creates a substantial likelihood of misidentification.” Id. (citing Commonwealth v. DeJesus, 580 Pa. 303, 860 A.2d 102 (2004)). “Photographs used in lineups are not unduly suggestive if the suspect’s picture does not stand out more than those of the others, and the people depicted all exhibit similar facial characteristics.” Commonwealth v. Fisher, 564 Pa. at 522, 769 A.2d at 1126-27. The Commonwealth has the burden of establishing the identification procedure was not suggestive. Johnson, 542 Pa. at 397, 668 A.2d at 103. Additionally, photographic arrays are not unduly suggestive where the pictures depict individuals with similar permanent physical characteristics, even if some characteristics, such as hair or facial hair, differ. Commonwealth v. Wheeler, 498 Pa. 374, 377, 446 A.2d 892, 894 (1982).

This issue was addressed in Commonwealth v. Nelson, 399 Pa. Super. 618, 582 A.2d 1115 (1990), in which a witness was shown a photographic array with eight black males, including the appellant, who were similar in age, skin complexion, hair and general appearance. The court reasoned that there was no identifying information on the photographs and the witness was not influenced by the police officer in any manner while she was viewing the photographs. Id., 399 Pa. Super. at 622, 582 A.2d at 1117. As a result, the Nelson court held, “No suggestiveness or unfairness was established, and the trial court properly admitted the photographic identification into evidence.” Id.

Conversely, in Commonwealth v. Jarecki, 415 Pa. Super. 286, 609 A.2d 194 (1992), the court determined that the photographic array was unduly suggestive based on the following facts: The police officer presented the photographic array to witnesses six weeks after the robbery occurred. It was shown to at least four witnesses at the same time and all but one of the four witnesses had only seen portions of the perpetrator’s eyes, chin, and hair. Only one witness claimed to have seen the perpetrator’s entire face and he provided a description for a composite sketch. That witness was the first to identify the defendant’s picture. The other witnesses observed his selection and they could infer that the perpetrator’s picture was in the display. Additionally, the defendant’s photograph in the display was suggestive as the other photographs were head shots, but the defendant’s picture showed his entire torso and the date. Therefore, the Jarecki court held that the procedure utilized by the police officer was unduly suggestive as the only individual claiming to see the perpetrator chose the defendant’s picture in the presence of the other witnesses and the defendant’s picture was so different from the other photographs in the array that it was unduly suggestive. Id.

In the current case, Officer Russo constructed a photographic array utilizing pictures from J-Net. He attempted to find people with similar characteristics as the defendant from pictures of suspects in other cases. Even though all of the characteristics of each picture are not exactly the same as the defendant, the photographs chosen were sufficiently similar to prevent the lineup from being unduly suggestive. First, the photographs contained individuals who are white males of similar age as the defendant. Additionally, some of the photographs contained people with similar hair color. However, it must be noted that the hair color varied slightly, but not to a degree that would render the photographic array as unduly suggestive. Similar to the circumstances in Nelson, Officer Russo presented Mr. Reino and Ms. Parish with a photographic array that contained individuals of similar age, complexion, hair color, eye color and appearance. Moreover, Mr. Reino and Ms. Parish viewed the photographic array on separate occasions to ensure that both identifications were made from their own independent recollection, unlike Jarecki. Thus, the defendant’s motion to suppress is denied.

For the reasons set forth in this opinion, the court grants the defendant’s petition for writ of habeas corpus in part and the charge of recklessly endangering another person is dismissed; however, the petition for writ of habeas corpus regarding the charge of simple assault is denied. The court also denies the defendant’s motion to suppress regarding Mr. Reino’s and Ms. Parish’s identifications of the defendant from the photographic array.

ORDER

Now this, August 25,2010, this case being before the court on May 26,2010, andAugust2,2010, for hearings on the omnibus pretrial motion filed by the defendant, with both parties appearing, the Commonwealth of Pennsylvania, represented by counsel, Kathleen Fee-Baird, Esquire, assistant district attorney for the County of Lawrence and the defendant, Robert John Fazzolare, represented by counsel, Louis M. Perrotta, Esquire and after consideration of the testimony presented at the hearing and the memorandums of law filed by both counsel, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) The motion for discovery contained in the omnibus pretrial motion has been satisfactory complied with by the Commonwealth and is no longer an issue. The court reminds the Commonwealth that discovery is ongoing and the Commonwealth shall continue to comply with the discovery rules if additional discovery is located since the date of this order of court.

(2) In accordance with the attached opinion, the motion to suppress the photographic lineup is hereby denied.

(3) In accordance with the attached opinion, the petition for writ of habeas corpus is hereby granted in part and denied in part.

(4) The petition for writ of habeas corpus regarding the charge of simple assault is hereby denied.

(5) The petition for writ of habeas corpus regarding the charge of recklessly endangering another person is hereby granted.

(6) The charge of recklessly endangering another person is hereby dismissed.

(7) The clerk of courts is directed to serve a copy of this order of court upon counsel of record, Kathleen Fee-Baird, Esquire and Louis M. Perrotta, Esquire.

      . Officer Russo explained that the photographs taken from J-Net are drivers’ license photographs.

      . 18 Pa.C.S. §2701(a)(1).

      . 18 Pa.C.S. §2705.


author: TUCKER, J,

text:
    Peoples v. Dayle

      Stephen H. Cristal, for plaintiff.

      William C. Reil, for defendant.
    August 11, 2010
   TUCKER, J,

I. PROCEDURAL HISTORY

This matter was before this court by defendant’s preliminary objections to plaintiff’s third amended complaint on May 27,2010. This court sustained the defendant’s preliminary objections and dismissed the complaint. On June 28, 2010, John F. Peoples filed a notice of appeal to the Pennsylvania Superior Court. On June 29,2010, this court ordered Peoples to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P 1925(b). As of the date of this opinion, Peoples has failed to file a 1925(b) statement. A discussion ensues.

II. FACTS

Plaintiff Peoples alleges common-law theft, theft by deception and conversion, common-law fraud, Pennsylvania statutory consumer fraud, and intentional infliction of emotional distress against defendant, Ginger Dayle. PI. third amend, compl. at 11. Peoples admits that Dayle got a hold of his credit card information by offering him sexual services. Id. at 15. Plaintiff alleges that Dayle took advantage of the fact that he is blind and on several occasions had him sign credit card receipts with the wrong amount on them exceeding $3,000 in fraudulent charges. Id. at 14, 16.

III. LEGAL ANALYSIS

a. Since Peoples Has Failed To Timely File a 1925(b) Statement, His Claims Are Deemed Waived

Pa.R.A.P. 1925(b) provides in pertinent part:

“[T]he judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal (‘statement’).” Pa.R.A.P. 1925(b).

Pa.R.A.P. 1925(b) states:

“The judge shall allow the appellant at least 21 days from the date of the order’s entry on the docket for the filing and service of the statement....
“The judge’s order... shall specify... the number of days after the date of entry of the judge’s order within which the appellant must file and serve the statement.” Pa.R.A.P. 1925(b)(2)-(3)(i).

Pa.R.A.P. 1925(b) further provides that an appellant’s failure to raise any issues in accordance with its provisions will result in the waiver of those issues:

“Issues not included in the statement and/or not raised in accordance with the provisions of this paragraph (b) (4) are waived.” Pa.R.A.P. 1925(b)(4)(vii).

Here, on June 29, 2010, this court ordered Peoples to file a 1925(b) statement within 21 days. Thus, he had until July 20, 2010 to file his 1925(b) statement. As of August 11, 2010, this court has yet to receive Peoples’ 1925(b) statement. Since Peoples has failed to file a 1925(b) statement within the 21 days period mandated by Pa.R.A.P. 1925(b), Peoples’ claims are deemed waived. See Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005); Commonwealth v. Schofield, 585 Pa. 389, 393, 888 A.2d 771, 774 (2005).

b. Defendant’s Preliminary Objections Were Properly Sustained Because this Court Cannot Enforce an Illegal Contract

Even though plaintiff has failed to file a 1925(b), his challenge to this court’s ruling would nonetheless be without merit because this court cannot enforce an illegal contract. This action springs from aseries of transactions between Peoples and Dayle allegedly involving sex for money. Simply put, this court cannot aid in an action stemming from an illegal transaction or enforce an illegal contract. Under Pennsylvania law, patronizing a prostitute is illegal. 18 Pa.C.S. §5902(e).

A court’s refusal to enforce an illegal contract is motivated by a desire to promote goals transcending the isolated litigation before the court:

“The principle of public policy is, that no court will lend its aid to a man who grounds his action upon an immoral or illegal act. .. [Principles of public convenience demand that the justice of the case shall yield to higher considerations, the operation of the precedent on public morals and the public interest. It is for these reasons courts of justice will not assist an illegal transaction in any respect.” Fowler v. Scully, 72 Pa. 456, 467 (1872) (quoting Yeates, J.).

A contract is illegal “if either its formation or its performance is criminal, tortious, or otherwise opposed to public policy.” Restatement, Contracts §512 (1932). See O’Brien v. O’Brien Steel Construction Company, 440 Pa. 375, 379 (1970). The illegality must appear from the plaintiff’s statement of his cause of action. Holt v. Green, 73 Pa. 198, 201 (1873).

In this case, the illegality clearly stems from the plaintiff’s statement of his cause of action. Peoples alleges that he hired Dayle for sex and as a result she gained access to his credit card where she made unauthorized charges. PL third amed. compl. at 14-16. Therefore, the charges in dispute stemmed from alleged illegal prostitution services and consequently he cannot recover based on them.

CONCLUSION

Peoples has failed to file a timely 1925(b) Statement as required by Pa.R.A.P. 1925(b) and thus his claims are waived. Furthermore, this court properly sustained defendant’s preliminary objections because plaintiff cannot use the courts to recover damages stemming from an illegal contract. Therefore, his issues are waived and this court’s ruling should be affirmed.