author: CARUSO, J., CARUSO, J.,

text:
    Bonson v. Diocese of Altoona-Johnstown

      C.P. of Westmoreland County,
    no. 3104 of 2003.

      Helen R. Kotler, for plaintiff.

      Bruce A. Antkowiak and Adam B. Cogan, for defendants Downey, Cherry and Campbell.

      Raymond F Sekula, for defendants Cherry and Campbell.

      Eric N. Anderson, for defendants Diocese of Altoona-Johnstown, Bishops Adamec and Hogan, and Benedictine Society.
    May 11, 2004
   CARUSO, J.,

Before the court are the preliminary objections filed by the defendants, Diocese of Altoona-Johnstown, Bishop Joseph V. Adamec, Bishop James Hogan, and Benedictine Society a/k/a Benedictine Society of Westmoreland County a/k/a St. Vincent Archabbey (the Diocesan defendants), and the defendants, Father Alvin T. Downey, Father Athanasius Cherry, and Father Andrew Campbell (the individual defendants). The plaintiff, Mary Bonson, filed preliminary objections to the preliminary objections of the defendants with respect to defendants’ request for dismissal of the suit based upon the expiration of the statute of limitations.

This court had denied the preliminary objections of all defendants by order of court dated February 2, 2004. Upon the defendants’ motion for reconsideration and/or certification of questions for interlocutory appeal, this court granted reconsideration of the preliminary objections, vacated its prior order and reserved ruling on the certification of questions for interlocutory appeal upon the resolution of the preliminary objections. (See order of court dated 3/10/04.) Oral argument on the supplemental briefs filed in support of and in opposition to defendants’ preliminary objections was held on April 22, 2004. This decision and order of court addresses the preliminary objections filed by the parties upon the court’s reconsideration.

The salient facts were set forth in this court’s decision accompanying its order dated February 2, 2004. The plaintiff is the mother of an adult son who was a minor during a period where he was allegedly sexually abused by the individual defendant, Father Downey, between approximately 1980 and 1981. (First am. compl. ¶2.) Plaintiff also alleges that in or around April 1981, her son was sexually abused and given drugs and alcohol by the individual defendants, Father Downey, Father Cherry and Father Campbell, all Benedictine priests, in an incident that occurred at St. Vincent Archabbey. (Compl. ¶3.) On approximately July 2, 2002, plaintiff was informed by her son of the sexual abuse. (Compl. ¶¶5,42, 63, 73.) The plaintiff brought this action on her own behalf against the individual defendants and Diocesan defendants for intentional infliction of emotional distress (Counts I and II), and against the Diocesan defendants for negligent infliction of emotional distress (Count III) and fraudulent concealment and misrepresentation (Count IV).

The standard of review of preliminary objections is a limited one. AM/PM Franchise Association v. Atlantic Richfield Co., 526 Pa. 110, 121, 584 A.2d 915, 921 (1991). I must accept as true all material facts that are set forth in the complaint, as well as all inferences reasonably deducible therefrom. Sherk v. County of Dauphin, 531 Pa. 515, 516, 614 A.2d 226, 227 (1992). A demurrer cannot be granted unless the law says with certainty that no recovery is possible. Id. at 517, 614 A.2d at 227. Moreover, any doubt that exists as to whether a demurer should be sustained must be resolved in overruling the objection. Id.

The question for the court’s determination is whether the plaintiff has sufficiently stated claims against these defendants upon which the law permits recovery. Upon reconsideration, the court finds that plaintiff has not sufficiently asserted claims against the individual defendants, Father Cherry and Father Campbell, for intentional infliction of emotional distress. Therefore, the preliminary objections filed by the individual defendants, Father Cherry and Father Campbell, will be sustained, and plaintiff’s claims against these defendants shall be dismissed. In all other respects, this court affirms and incorporates herein its prior decision and order of February 2, 2004. As such, the remaining preliminary objections filed by the plaintiff, the individual defendant, Father Downey, and the Diocesan defendants will be overruled.

The individual defendants, Father Downey, Father Cherry and Father Campbell, filed a demurrer to plaintiff’s claim against them for intentional infliction of emotional distress (IIED). Plaintiff’s claim for TTED is asserted pursuant to subsection 46(1) of the Restatement (Second) of Torts for extreme and outrageous conduct of the individual defendants directed at plaintiff.

Plaintiff avers that it was reasonably foreseeable that a parent such as plaintiff, who was a religious and devout parishioner, and who completely trusted the Roman Catholic Church and its priests, would be emotionally harmed to learn that her son was sexually abused by a priest and that her trust of the priest may have played a part in the harm caused to her son. (Compl. ¶¶83, 84.) Plaintiff alleges that the individual defendants used their station to make plaintiff a facilitator or accomplice in abuse, and that she would not have encouraged such unfettered access by the priests to her son had they not been priests. (Compl. ¶82.) Plaintiff avers that a major and significant part of this claim is her realization that she had unwittingly become an accomplice to said abuse. (Compl. ¶89.)

The allegations against Father Cherry and Father Campbell, however, are distinguishable from plaintiff’s allegations against Father Downey. The allegations pertaining to Father Cherry and Father Campbell refer to events that took place at St. Vincent Archabbey. Plaintiff has averred that her son was invited on this trip at the behest of Father Downey. (Compl. ¶59.) In her brief in opposition to these preliminary objections, plaintiff argues that the actions of Father Cherry and Father Campbell were reckless in that they intended their conduct to be secret. (Pl.’s brief in opp’n at 21.) She contends that these defendants surely knew of the devastation that would occur to the parent who learned of such conduct after sending their child to the Archabbey with full confidence in the child’s safety. (Pl.’s brief in opp’n at 21.)

Such allegations, without more, fail to sufficiently assert a claim against Father Cherry and Father Campbell for intentional infliction of emotional distress pursuant to subsection 46(1) of the Restatement (Second) of Torts. Absent from plaintiff’s complaint are any allegations that Father Cherry and Father Campbell directed any extreme or outrageous conduct toward the plaintiff. Assuming the allegations of plaintiff’s complaint as true, for purposes of these preliminary objections, the sole allegation against these two individual priests were that they inflicted and participated in sexual misconduct toward her son. There are no allegations that these defendants directed any conduct toward the plaintiff, or that they communicated with her or used their station as priests to persuade her to allow her son to visit the Archabbey such that they could gain access to her son. The allegations of a trust relationship with priests, upon which plaintiff’s theory is based and which enabled her to become a facilitator or accomplice to said abuse, are simply absent with respect to Father Cherry and Father Campbell. Therefore, I find that plaintiff has failed to set forth claims against the individual defendants, Father Cherry and Father Campbell, for intentional infliction of emotional distress. The preliminary objections of Father Cherry and Father Campbell are, therefore, sustained; plaintiff’s causes of action against Father Cherry and Father Campbell are hereby dismissed.

Plaintiff’s relationship with and allegations against the individual defendant, Father Downey, who was a priest at her parish, are distinctly different. Plaintiff and her son repeatedly had direct contact with Father Downey. Plaintiff avers that Father Downey held himself out as a trustworthy holy person. (Compl. ¶90.) Plaintiff alleges that Father Downey performed sexual acts on her son in her very own home. (Compl. ¶18.) It is alleged that Father Downey deceived her as to his true intentions toward her son for the purposes of gaining her compliance so that he could gain further access to her son. (Compl. ¶91.) Plaintiff avers that Father Downy caused harm to her directly by making her an accomplice or accessory to the secret acts of him and his friends. (Compl. ¶¶90-92.) She argues that Father Downey relied on the embarrassment and insecurity of a teenager not to disclose the events to his mother, but was reckless in that there was no guarantee that plaintiff would not become aware of what occurred. (Pl.’s brief in opp’n at 21.) Plaintiff maintains that any reasonable person would know the devastation to a parent in realizing their part in harming their child. (Pl.’s brief in opp’n at 21.)

In the allegations surrounding the nature of plaintiff’s relationship with Father Downey, he is denoted as the pastor of her church and close friend of the family. Plaintiff’s friendship and trust of Father Downey was the basis for her decisions to allow Father Downey into her home to supervise her son and was the basis for her encouragement of her son to befriend Father Downey and to participate in events and functions of the church, all of which allowed Father Downey increased access to her son. The nature of these allegations, should recovery be permitted in the courts of this Commonwealth under subsection 46(1) of the Restatement (Second) of Torts, are sufficient to set forth a claim for extreme and outrageous conduct of Father Downey that was directed at the plaintiff. This court cannot state with certainty that the law would not permit recovery for plaintiff’s claim of intentional infliction of emotional distress against the individual defendant, Father Downey. Therefore, the preliminary objections filed by Father Downey are, again, overruled.

Apart from this court’s decision that plaintiff’s claims against the individual priests, Father Cherry and Father Campbell, are dismissed, this court relies upon and incorporates herein its decision and order of court dated February 2,2004, as to its reasoning and rulings on the remaining preliminary objections. However, this court recognizes the dearth of case law on the novel issues presented by plaintiff to this court, and that any pronouncement as to the law of the Commonwealth on the issues presented are best left to our appellate courts. As such, the court finds that this decision and order involve controlling questions of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from this decision and order may materially advance the ultimate termination of this matter.

ORDER

And now, May 11, 2004, it is hereby ordered and decreed that the preliminary objections filed by the individual defendants, Father Cherry and Father Campbell, are sustained, and plaintiff’s causes of action against these defendants for intentional infliction of emotional distress are dismissed; the remaining preliminary objections filed by the plaintiff, the individual defendant, Father Downey, and the Diocesan defendants, the Diocese of Altoona-Johnstown, Bishop Joseph V. Adamec, Bishop James Hogan, and Benedictine Society a/k/a Benedictine Society of Westmoreland County a/k/a St. Vincent Archabbey, are overruled, consistent with this court’s prior decision and order of court dated February 2, 2004.

February 2, 2004

This court further certifies that this order presents controlling questions of law as to which there is substantial ground for difference of opinion, and that an immediate appeal from this order may materially advance the ultimate termination of the matter.

CARUSO, J.,

Preliminary objections have been filed by the defendants, Diocese of Altoona-Johnstown, Bishop Joseph V. Adamec, Bishop James Hogan, and Benedictine Society a/k/a Benedictine Society of Westmoreland County a/k/a St. Vincent Archabbey (the Diocesan defendants), and the defendants, Father Alvin T. Downey, Father Athanasius Cherry, and Father Andrew Campbell (the individual defendants). The plaintiff, Mary Bonson, has filed preliminary objections to the preliminary objections of the defendants with respect to defendants’ request for dismissal of the suit based upon the expiration of the statute of limitations.

The plaintiff is the mother of an adult son who was a minor during a period where he was allegedly sexually abused by the individual defendant, Father Downey, between approximately 1980 and 1981. (First am. compl. ¶2.) Plaintiff also alleges that in or around April 1981, her son was sexually abused and given drugs and alcohol by the individual defendants, Father Downey, Father Cherry and Father Campbell, all Benedictine priests, in an incident that occurred at St. Vincent Archabbey. (Compl. ¶3.) On approximately July 2, 2002, plaintiff was informed by her son of the sexual abuse. (Compl. ¶¶5, 42, 63, 73.) The plaintiff brought this action on her own behalf against the individual defendants and Diocesan defendants for intentional infliction of emotional distress (Counts I and II), and against the Diocesan defendants for negligent infliction of emotional distress (Count III) and fraudulent concealment and misrepresentation (Count IV).

The standard of review of preliminary objections is a limited one. AM/PM Franchise Association v. Atlantic Richfield Co., 526 Pa. 110, 121, 584 A.2d 915, 921 (1991). I must accept as true all material facts that are set forth in the complaint, as well as all inferences reasonably deducible therefrom. Sherk v. County of Dauphin, 531 Pa. 515, 516, 614 A.2d 226, 227 (1992). A demurrer cannot be granted unless the law says with certainty that no recovery is possible. Id. at 517, 614 A.2d at 227. Moreover, any doubt that exists as to whether a demurrer should be sustained must be resolved in overruling the objection. Id.

First, the court will address the preliminary objections filed by the plaintiff to the preliminary objections of all defendants. Plaintiff argues that the defendants have improperly raised the statute of limitations defense in preliminary objections. Her argument is that the statute of limitations defense is not enumerated as a proper basis for preliminary objections in Pa.R.C.P. 1028(a). Rather, Pa.R.C.P. 1030 provides that the affirmative defense of the statute of limitations shall be pleaded in new matter. The defendants have responded that the defense is properly raised in preliminary objections because the plaintiff specifically raised the statute of limitations in her first amended complaint. This court agrees.

When discussing the strict adherence to our procedural rules, the Superior Court, in Bocchicchio v. General Public Utilities Corporation, 456 Pa. Super. 23, 689 A.2d 305 (1997), noted the difference between raising an issue by preliminary objections as opposed to new matter. A preliminary objection sets forth a reason why the plaintiff’s action is either legally or procedurally deficient. Id. at 29, 689 A.2d at 308. In new matter, the defendant avers that even if the allegations in the complaint are true, a defense exists to defeat the plaintiff’s cause of action. Id. While both attempt to eradicate plaintiff’s cause of action, the reasons behind sustaining such defenses or objections differ. Id.

In the instant matter, however, plaintiff has specifically pled the inapplicability of the statute of limitations defense to her causes of action. In addition to raising the discovery rule to toll the statute of limitations, (compl. ¶¶65-79), plaintiff sets out allegations that pertain to the defendants’ waiver of the statute of limitations defense, (compl. ¶¶74, 76, 79) (containing allegations of estoppel and fraudulent concealment). Because the plaintiff has alleged reasons why the statute of limitations defense does not apply, and since she has already set forth specific allegations regarding how the defense has been waived by the defendants, this court will consider the issue of the statute of limitations on preliminary objections.

Although the abuse to her minor son occurred in 1980 and 1981, the plaintiff did not learn of the abuse until her son informed her on July 2, 2002. (Compl. ¶¶2, 73.) Plaintiff pleads that the discovery rule permits her claims to go forward. (Compl. ¶65.) This rule tolls the statute of limitations and applies in extremely limited circumstances where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period. E.J.M. v. Archdiocese of Philadelphia, 424 Pa. Super. 449, 454, 460, 622 A.2d 1388, 1391, 1394 (1993). In such cases, the plaintiff, despite the existence of objectively measured reasonable diligence, could not know of the injury and its cause within the limitations period. Id. at 460-61, 622 A.2d at 1394. The point at which the complaining party should reasonably be aware that he or she has suffered an injury is generally an issue of fact to be determined by the jury. Id. at 455, 622 A.2d at 1391 (quoting Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1042-43 (1992)).

Plaintiff alleges that the conduct of the defendants that forms the basis of her claims against them for emotional distress and fraudulent concealment prevented her from discovering her causes of action against the defendants. (Compl. ¶¶65-72.) Furthermore, plaintiff avers that the Diocesan defendants are estopped from asserting the statute of limitations defense due to their fraudulent concealment of essential facts giving rise to plaintiff’s causes of action. (Compl. ¶¶74,76-79.) Whether the defendants acted to fraudulently conceal information from her to prevent her from discovering her causes of action involves a question of fact at this juncture. The resolution of when the plaintiff should have been aware of her claims and whether the defendants fraudulently withheld information from her cannot be resolved on the face of the complaint. Therefore, the defendants’ preliminary objections based upon the statute of limitations will be overruled, without prejudice to the defendants to raise the statute of limitations defense in their new matter.

I. DIOCESAN DEFENDANTS

A. Negligent Infliction of Emotional Distress

The Diocesan defendants have filed preliminary objections to plaintiff’s claim for negligent infliction of emotional distress (NIED). Although the bases for NIED claims commonly fall within the physical impact, zone of danger or bystander rules, Shumosky v. Lutheran Welfare Services of Northeastern Pa. Inc., 784 A.2d 196, 199 (Pa. Super. 2001), our courts have recognized recovery in situations where the defendant owes the plaintiff a pre-existing duty of care, either through contract or a fiduciary duty, and breach of that duty causes the emotional distress alleged. Corbett v. Morgenstern, 934 F. Supp. 680, 683-84 (E.D. Pa. 1996); Hunger v. Grand Central Sanitation, 447 Pa. Super. 575, 595, 670 A.2d 173, 183 (1996) (Beck, J., concurring); Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 50-53, 633 A.2d 605, 612-15 (1993); Crivellaro v. Pennsylvania Power and Light Co., 341 Pa. Super. 173, 181, 491 A.2d 207, 212 (1985).

Assuming the averments in plaintiff’s complaint to be true, the issue is whether the Diocesan defendants owed a fiduciary duty to the plaintiff. A fiduciary or confidential relationship is established where one places confidence in the integrity of others, who in turn accept or assume to accept the confidence. Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 254 n.3, 602 A.2d 1277, 1283 n.3 (1992). Thereafter, the person in whom such confidence is placed cannot act to take advantage of the others’ interests without their knowledge or consent. Id.

Plaintiff has alleged the following in support of her contention that the Diocesan defendants owed her a fiduciary duty. Through control of, and interaction with, the parish churches in the Diocese and their direct knowledge of the daily functioning of the various religious and recreation programs operating in each parish, the Diocesan defendants were aware that among the parishioners were a significant number of children and adolescents who, because of their very status as minors, were vulnerable to and trusting of priests placed in the parishes. (Compl. ¶19.) The Diocesan defendants were also aware that, among the parishioners, the parents of the children and adolescents trusted their children and adolescents to be safe with the priests placed in the parishes. (Compl. ¶20.) The Diocesan defendants were aware that the minor parishioners, through their participation in parish churches, parish schools, Diocesan secondary schools and Diocesan-sponsored and developed educational and/or recreational programs, had intimate, frequent, and often private contact with parish clergy and priests assigned by the Diocesan defendants. (Compl. ¶21.) As part of priests’ duties, and in furtherance of cultivating a trusting relationship with children and adolescents, priests visited the children’s homes to meet with the children and their parents. (Compl. ¶22.) These defendants knew and approved of the fact that minor parishoners were present at parish rectories (priest/clergy residences) for a variety of purposes. At all times, plaintiff maintained very close contact with the Roman Catholic Church, by serving in many functions in the church, teaching classes, performing various functions to assist the church and trying to attend mass daily. (Compl. ¶¶27-28.) Plaintiff maintained a very strong faith, which she tried to instill in her children, encouraging them to participate in church affairs and encouraging her son to be an altar boy, where he met Father Downey. (Compl. ¶29.) The Diocesan defendants, Father Downey and other unnamed parish clergy, or those assigned to the parishes from the Benedictine Society, repeatedly instilled in each of its parishioners, including plaintiff, the belief that priests are figures of authority who should be relied upon to protect the well-being of children in the parishes of the Diocese. (Compl. ¶30.) Plaintiff believed and trusted the priests assigned to her parish, including and in particular, Father Downey. (Compl. ¶32,) Plaintiff also taught her son to obey priests and to rely on and trust them without doubt or question on issues affecting their physical and moral well-being, just as plaintiff did. (Compl. ¶31.)

Plaintiff avers that the defendant Bishop has a duty to exercise reasonable care to see that the priests assigned within parishes of the Diocese are not individuals who are dangerous to vulnerable parish members, and the defendant Benedictine Society had a duty to warn the Bishop of the dangerous sexual proclivities of a priest before he was assigned to a parish. (Compl. ¶108.) Plaintiff alleges that the Bishop and Benedictine Society knew or should have known that parents of minor children entrusted their children to attend church and serve as altar boys, go on outings or be in the presence of a priest, and that the parents would feel that their children were safe. (Compl. ¶109.) Plaintiff avers that the Diocesan defendants had a duty to not act in any way to place her son in danger, and to advise her and other parish members if there was any danger to their children. (Compl. ¶¶111-112.).

As for the breach of such duty, plaintiff contends that the Diocesan defendants knew that Father Downey was unsafe and therefore removed him from the parish, and knew that there was misconduct at St. Vincent Archabbey, and within the Benedictine Society, so as to make it unsafe for a visiting minor. (Compl. ¶113.) Plaintiff alleges that the Diocesan defendants failed to warn plaintiff to be careful in allowing and encouraging her son to be alone with Father Downey or priests from the Benedictine Society. It is averred that the Defendants Bishop and Diocese had knowledge that certain priests assigned to its Diocese engaged in conduct unbecoming and/or acting in a manner dangerous to others, particularly minor children and adolescents. (Compl. ¶116.) Plaintiff alleges that the Diocesan defendants knew or should have known that plaintiff would suffer emotional distress if she learned that they had allowed her son to be sexually abused by a priest that they placed in her parish, or at a facility operated and owned by the Benedictine Society. (Compl. ¶117.) Finally, plaintiff avers that the Diocesan defendants negligently conspired to keep information regarding how certain priests that they had assigned within the Diocese had acted dangerously, knowing that plaintiff and other parents would suffer emotional distress once they learned that they had allowed or encouraged their children to be alone in the presence of trusted but dangerous priests who engaged in sexual misconduct. (Compl. ¶118.)

As a result of the alleged conduct of the Diocesan defendants, plaintiff has alleged that she sustained severe anguish and trauma, necessitating psychiatric and medical care and treatment, including elevated cholesterol, nightmares, an inability to sleep causing exhaustion, and an increased risk of heart attack. (Compl. ¶119(a).)

Accepting the above allegations as true for the purpose of deciding these preliminary objections, the court cannot say with certainty that the Diocesan defendants did not owe a fiduciary duty to the plaintiff. Therefore, the preliminary objection to plaintiff’s claim for negligent infliction of emotional distress will be overruled.

The Diocesan defendants argue that plaintiff has failed to aver that she suffered physical harm from the alleged negligence of the Diocesan defendants, as required to sufficiently plead a cause of action for NIED. See Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 44, 633 A.2d 605, 609 (1993). The requirement that physical harm must accompany emotional distress to state a claim for NIED is based on the Restatement (Second) of Torts §436A. Temporary fright, nervous shock, nausea, grief, rage and humiliation, if transitory, are not compensable injuries. Id. Compensable harm does include long continued nausea or headaches, repeated hysterical attacks or mental aberration. Id. In Armstrong v. Paoli Memorial Hospital, supra, the Superior Court of Pennsylvania held that loss of continence at the time plaintiff learned of the conduct giving rise to her distress, coupled with allegations of depression, nightmares and insomnia, met the requirement of sufficiently averring physical injury. Id. Here, plaintiff alleges psychiatric and medical care and treatment, elevated cholesterol, nightmares, an inability to sleep causing exhaustion, and an increased risk of heart attack. These allegations are sufficient to aver physical harm.

B. Intentional Infliction of Emotional Distress

Although the Supreme Court of Pennsylvania has never expressly recognized a cause of action for intentional infliction of emotional distress and has not formally adopted section 46 of the Restatement (Second) of Torts (1965), the court has cited this section as setting forth the minimum elements necessary to sustain a cause of action for IIED. Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 754 A.2d 650, 652 (2000). This section provides:

“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
“(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
“(a) to a member of such person’s immediate family who is present at the time, whether or not such distress resulted] in bodily harm, or
“(b) to any other person who is present at the time, if such distress results in bodily harm.” (emphasis in original)

In Johnson v. Caparelli, 425 Pa. Super. 404, 625 A.2d 668 (1993), the Superior Court of Pennsylvania affirmed the trial court’s dismissal of the parents’ claims for IIED. In Johnson, the minor child served as an altar boy and was hired by the defendant priest to perform occasional groundskeeping and maintenance at the church. The defendant priest developed a close relationship with the family of the minor son, and secured permission to take him to the movies, for food and on short trips. Although the alleged abuse occurred from approximately September 1985 through June 1986, the parents did not learn of the incidents until 1991. The trial court sustained the defendant priest’s preliminary objections to the parents’ claims for IIED because they were not present when their minor son was allegedly sexually abused by the priest. The IIED claims in Johnson, however, were brought pursuant to subsection 46(2) of the Restatement because the parents alleged that they sustained severe emotional distress as a result of the sexual acts perpetrated by the defendant priest on their son. Because subsection 46(2) applied to individuals who suffered severe emotional distress as a result of outrageous conduct that is directed at a third party, the parents were required to satisfy the presence requirement under that subsection, which they failed to do.

In the instant matter, plaintiff argues that her claim for IIED falls within the confines of subsection 46(1) of the Restatement, which does not require her to have been present at the alleged sexual abuse of her son. Plaintiff alleges that the Dioesan defendants engaged in extreme and outrageous conduct that was directed at her, causing her to suffer severe emotional distress.

It is for the court to determine, in the first instance, whether the Diocesan defendants’ conduct may reasonably be regarded as so extreme and outrageous to permit recovery. Johnson, 425 Pa. Super, at 441, 625 A.2d at 671. The availability of recovery under section 46 is highly circumscribed. The tortious conduct necessary for recovery is described as follows:

“(d) Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortuous or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” Restatement (Second) of Torts §46 comment d

It is alleged in the complaint that the Diocesan defendants knew that Father Downey was unsafe and therefore removed him from the parish, and knew that there was misconduct at St. Vincent Archabbey, and within the Benedictine Society, so as to make it unsafe for a visiting minor. (Compl. ¶¶48,113.) Plaintiff alleges that the Diocesan defendants knew or should have known that Father Downey and other Diocesan priests placed in the parishes of the Diocese or living at St. Vincent Archabbey had predatory sexual impulses toward children and adolescents, permitted the dangerous priests to remain and failed to warn or advise the parents of the minors, all the while engaging in conduct to encourage parents in allowing their children to be in close proximity to the priests. (Compl. ¶¶25, 98.) The act of failing to warn parents, including the plaintiff, that they should not implicitly trust all priests, coupled with such knowledge, consisted of reckless acts directed at parents, in that parents who learned of the sexual abuse of their children were confronted with the discovery that they assisted in said acts by facilitating abuse. (Compl. ¶99.) Had the Diocesan defendants warned of said abuse, each parent could take steps to ascertain if sexual abuse was occurring and perhaps prevent sexual abuse or further sexual abuse. (Compl. ¶100.)

Accepting these allegations as true, the court cannot find that it is clear and free from doubt that such conduct is not extreme and outrageous on the part of the Diocesan defendants. The determination should be left to the fact-finder under such circumstances. Therefore, the Diocesan defendants’ preliminary objections to plaintiff’s claim for HED will be overruled.

The Diocesan defendants also argue that the plaintiff has not alleged that she has suffered physical harm. While physical harm may be evidence in an action for IIED, it is not a necessary element to sustain such an action. Rather, there must be some objective proof of the severe emotional distress, e.g., the alleged emotional distress must be supported by competent medical evidence. Kazatsky v. King David Memorial Park, 515 Pa. 183, 197, 527 A.2d 988, 995 (1987). The medical evidence need not show any physical harm. Podolinski v. Episcopal Diocese of Pittsburgh, 23 D.&C.4th 385, 406 (Armstrong Cty. 1995). Plaintiff has alleged that her distress required psychiatric and medical care and treatment. (Compl. ¶106^).) Such allegations sufficiently allege objective proof of the emotional distress.

C. Fraudulent Concealment and Misrepresentation

The plaintiff, in Count IV of her complaint, has brought a claim for fraudulent concealment and misrepresentation against the Diocesan defendants. The Diocesan defendants have filed preliminary objections contending that, upon the facts alleged, plaintiff has failed to state a cause of action for the same. The Diocesan defendants note that Pa.R.C.P. 1019(b) requires that “averments of fraud or mistake shall be averred with particularity” and must be sufficient to convince the court that the averments are not merely artifice. Bash v. Bell Telephone Co., 411 Pa. Super. 347, 359, 601 A.2d 825, 831 (1992).

The following elements must be pled with particularity in order to make out a prima facie case for fraud and misrepresentation:

“(1) a misrepresentation;
“(2) a fraudulent utterance thereof;
“(3) an intention by the maker that the recipient will thereby be induced to act;
“(4) justifiable reliance by the recipient upon the misrepresentation; and
“(5) damage to the recipient as the proximate result.” Elia v. Erie Insurance Exchange, 398 Pa. Super. 433, 438, 581 A.2d 209, 211-12 (1990).

Intentional non-disclosure, or fraudulent concealment, has the same elements as the tort of intentional misrepresentation, with the exception that the party intentionally conceals a material fact rather than making an affirmative representation. Duquesne Light Co. v. Westinghouse Electric Corp., 66 F.3d 604, 612 n.6 (3d Cir. 1995) (citing Gibbs v. Ernst, 538 Pa. 193, 207 n.12, 647 A.2d 882, 889 n.12 (1994)). A misrepresentation by concealment will occur if the matter concealed was material. Sevin v. Kelshaw, 417 Pa. Super. 1, 611 A.2d 1232 (1992). That is, if the matter had been revealed, would the person receiving the information have acted differently with regard to a matter of importance to them. Fraud arises where the misrepresentation is false or where there is an intentional concealment calculated to deceive. Quashnock v. Frost, 299 Pa. Super. 9, 16, 445 A.2d 121, 124 (1982). Concealment may constitute fraud, but mere silence is not sufficient in the absence of a duty to speak. Smith v. Renaut, 387 Pa. Super. 299, 564 A.2d 188 (1989). The plaintiff must prove a causal connection between the representations and the alleged harm in order to prevail on a claim of fraudulent misrepresentation. Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298 (3d Cir. 1995).

In the complaint, plaintiff avers that the Diocesan defendants intentionally concealed their true knowledge and notice of the problem of sexually abusive priests in the Diocese, which prevented plaintiff from protecting her son and taking action against the defendants. (Compl. ¶¶122, 123, 137.) Plantiff alleges that the Diocesan defendants knew that devoted parishioners revered and trusted priests such that, when the Diocesan defendants became aware that certain priests were engaging in sexual abuse, they had a duty to warn the parishioners not only of the dangers of those specific priests, but to encourage the parishioners to be cautious, to question and not implicitly trust, and even to report to the Diocesan defendants any suspicious behavior of priests. (Compl. ¶¶125, 126.) Plaintiff avers that the Diocesan defendants continually concealed their knowledge of Father Downey’s predilections well before the time that plaintiff’s son was abused. (Compl. ¶¶135, 137.)

Plaintiff’s lack of knowledge as to the priests involved with her son was the result of the Diocesan defendants’ alleged failure to provide her with information that was material to her decisions regarding the relationship of her son with the priests. Plaintiff avers that the Diocesan defendants knew about the conduct of the priests, failed to inform her of the same and that, had she known this information, she would have acted differently. Plaintiff has sufficiently pled a cause of action for fraudulent concealment and misrepresentation. The Diocesan defendants’ preliminary objections to this claim will be overruled.

D. Scandalous and Impertinent Information

The Diocesan defendants have moved to strike the allegations contained in paragraphs 128-131 of plaintiff’s first amended complaint, which describe specific acts and conduct of another priest, Father Coleman. To be scandalous and impertinent, the allegations must be immaterial and inappropriate to the proof of the cause of action. Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998).

The plaintiff has averred that the Diocesan defendants knew of misconduct of other priests in the Diocese. The Diocesan defendants placed Father Coleman at her parish prior to Father Downey’s arrival. (Compl. ¶¶128-133.) Information gathered from the media regarding complaints of sexual misconduct against Father Coleman prompted plaintiff to question her son if he had been abused by Father Coleman. (Compl. ¶¶131, 132.) Plaintiff alleges that, had she been informed of the alleged misconduct of Father Coleman by the Diocesan defendants, she would have been aware of the need not to implicitly trust the motives of Father Downey as being honest or safe. (Compl. ¶133.) It follows that knowledge of Father Coleman’s misconduct may have prevented the sexual abuse of her son by the individual defendants. Therefore, averments of the specific acts of sexual misconduct committed by Father Coleman are material and relevant to the instant action. The preliminary objection to strike paragraphs 128 through 131 of the plaintiff’s complaint will be denied.

E. Subject Matter Jurisdiction

The Diocesan defendants argue that the court lacks subject matter jurisdiction over plaintiff’s claims because the First and Fourteenth Amendments to the United States Constitution protect the free exercise of religion and against excessive entanglement of the state in matters of the church. (Diocesan defs.’ brief in supp. of prelim, obj. at 29.) Courts may not inquire into ecclesiastical questions, i.e., where the resolution of an issue involves questions of discipline, faith, ecclesiastical rule, custom or law. Presbytery of Beaver-Butler v. Middlesex Presbyterian Church, 507 Pa. 255, 260, 489 A.2d 1317, 1319-20 (1985) (citing Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952)).

However, not all disputes involving religious institutions are doctrinal disputes. Orthodox Church of America v. Pavuk, 114 Pa. Commw. 176, 181, 538 A.2d 632, 634 (1988). Some disputes involve principles of civil law that may be resolved upon consideration of neutral principles without intruding into the sacred precincts of the church. Id. These disputes are not predicated on any religious doctrine, and the approach is completely secular in operation. Presbytery of Beaver-Butler, 507 Pa. at 263, 489 A.2d at 1321.

Therefore, a threshold determination must be made as to whether plaintiff’s dispute is one that is doctrinal in nature or, instead, involves only questions of civil law. Atterberry v. Smith, 104 Pa. Commw. 550, 555, 522 A.2d 683, 685 (1987). Plaintiff’s causes of action against the defendants for intentional infliction of emotional distress, negligent infliction of emotional distress and fraudulent concealment and misrepresentation stem from conduct that is purely a state concern. A resolution of these tort claims based in civil law does not involve interpretation of doctrinal or theological matters. See Presbytery of Beaver-Butler, 507 Pa. at 261-62, 489 A.2d at 1320-21. In cases where the resolution of a dispute involved no inquiry into eccelesiastical questions, the court is to apply the same principles of law as would be applied to non-religious associations. Gaston v. Diocese of Allentown, 712 A.2d 757, 760 (Pa. Super. 1998).

As set forth by the Supreme Court of the United States in Watson v. Jones, 80 U.S. 679, 20 L.Ed. 666, 13 Wall. 679 (1871):

“In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all.” 80 U.S. at 728. (emphasis added)

Plaintiff’s allegations are predicated on the Diocesan defendants’ failure to provide her with information essential to her decisions regarding her minor son and his relationships with, and access to, priests. Furthermore, plaintiff avers that the defendants used their revered position to gain her trust in an effort to gain access to her son and, in doing so, made her a facilitator of, or accessory to, the abuse. Allegations of acts against the public welfare or acts of immorality are areas of paramount state concern, which the court has authority to regulate. See Gaston, 712 A.2d at 760. The United States Supreme Court, in Watson v. Jones, supra, discussed this principle in terms of jurisdiction.

“[I]f the General Assembly of the Presbyterian Church should undertake to try one of its members for murder, and punish him with death or imprisonment, its sentence would be of no validity in a civil court or anywhere else. Or if it should at the instance of one of its members entertain jurisdiction as between him and another member as to their individual right to property, real or personal, the right in no sense depending on ecclesiastical questions, its decision would be utterly disregarded by any civil court where it might be set up. And it might be said in a certain general sense very justly, that it was because the General Assembly had no jurisdiction of the case.” 80 U.S. at 733.

Excessive entanglement issues do not arise merely because such allegations implicate members of a religious organization. “When a civil right depends upon an ecclesiastical matter, it is the civil court and not the ecclesiastical which is to decide. But the civil tribunal tries the civil right, and no more, taking the ecclesiastical decisions out of which the civil right arises as it finds them.” Watson, 80 U.S. at 731. Accordingly, this court properly has subject matter jurisdiction over plaintiff’s claims, which will involve the application of neutral principles of civil law. The defendants’ preliminary objection for lack of subject matter jurisdiction, therefore, will be overruled.

II. INDIVIDUAL DEFENDANTS

The individual defendants, Father Downey, Father Cherry and Father Campbell, have filed a demurrer to plaintiff’s claim against them for intentional infliction of emotional distress. As noted above, plaintiff’s claim for IIED is asserted pursuant to subsection 46(1) of the Restatement (Second) of Torts, which does not have a presence requirement, for extreme and outrageous conduct of the individual defendants directed at her.

Plaintiff avers that it was reasonably foreseeable that a parent such as plaintiff, who was a religious and devout parishioner and who completely trusted the Roman Catholic Church and its priests, would be emotionally harmed to learn that her son was sexually abused by a priest and that her trust of the priest may have played a part in the harm caused to her son. (Compl. ¶¶83, 84.) Plaintiff alleges that the individual defendants used their station to make plaintiff a facilitator or accomplice in abuse, and that she would not have encouraged such unfettered access by the priests to her son had they not been priests. (Compl. ¶82.) Plaintiff avers that a major and significant part of this claim is her realization that she had unwittingly become an accomplice to said abuse. (Compl. ¶89.)

The allegations against Father Cherry and Father Campbell refer to events that took place at St. Vincent Archabbey. Plaintiff has averred that her son was invited on this trip at the behest of Father Downey. (Compl. ¶59.) In her brief in opposition to these preliminary objections, plaintiff argues that the actions of Father Cherry and Father Campbell were reckless in that they intended their conduct to be secret. (Pl.’s brief in opp’n. at 21.) She contends that these defendants surely knew of the devastation that would occur to the parent who learned of such conduct after sending their child to the Archabbey with full confidence in the child’s safety. (Pl.’s brief in opp’n at 21.)

Father Downey was a priest at her parish, with whom plaintiff and her son repeatedly had direct contact. Plaintiff avers that Father Downey held himself out as a trustworthy holy person. (Compl. ¶90.) Plaintiff alleges that Father Downey performed sexual acts on her son in her very own home. (Compl. ¶18.) It is alleged that Father Downey deceived her as to his true intentions toward her son for the purposes of gaining her compliance so that he could gain further access to her son. (Compl. ¶91.) Plaintiff avers that Father Downey caused harm to her directly by making her an accomplice or accessory to the secret acts of him and his friends. (Compl. ¶¶90-92.) She argues that Father Downey relied on the embarrassment and insecurity of a teenager not to disclose the events to his mother, but was reckless in that there was no guarantee that plaintiff would not become aware of what occurred. (Pl.’s brief in opp’n. at 21.) Plaintiff maintains that any reasonable person would know the devastation to a parent in realizing their part in harming their child. (Pl.’s brief in opp’n. at 21.)

Based upon plaintiff’s allegations against Father Cherry, Father Campbell and Father Downey, this court cannot say with certainty that a cause of action does not exist against these defendants for IIED. It is not clear and free of all doubt that the individual defendants were not aware of the emotional harm that would be caused to plaintiff as a result of their alleged actions toward plaintiff’s son. Therefore, the preliminary objections to plaintiff’s claim against the individual defendants for IIED will be overruled.

ORDER

And now, February 2, 2004, it is hereby ordered and decreed as follows:

(1) The plaintiff’s preliminary objections to the preliminary objections of the defendants based upon the statute of limitations is overruled.

(2) With respect to the preliminary objections filed by the defendants, Diocese of Altoona-Johnstown, Bishop Joseph V. Adamec, Bishop James Hogan, and Benedictine Society a/k/a Benedictine Society of Westmoreland County a/k/a St. Vincent Archabbey (the Diocesan defendants), and the defendants, Father Cherry, Father Campbell and Father Downey (individual defendants), said preliminary objections are overruled.

      . Although the parents of a deceased child recently argued in a medical malpractice action that they satisfied the elements of an IIED claim under subsection 46(1), the viability of a claim under subsection 46(1) was not the basis for the Superior Court’s opinion, nor was it the subject of the allocatur grant. Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 185 n.1, 754 A.2d 650, 654 n.1 (2000) (Castille, J., concurring).


source: Caselaw Access Project

author: NEALON, J,

license: Public Domain

text:
    Phillips v. Hanna

      C.P. of Lackawanna County,
    no. 93 CV 5051.

      Anthony P. Trozzolillo, for plaintiffs.

      James J. Wilson, for defendant Community Medical Center.

      Rauofe Hanna M.D., pro se.
    September 7, 2004-
   NEALON, J,

ORDER

Plaintiffs have filed an “Emergency motion for continuance” seeking a postponement of this medical malpractice trial as a result of statements made by President George W. Bush during a campaign rally at the Lackawanna County Stadium on September 3, 2004. By way of brief background, the adult plaintiffs instituted this malpractice case against their minor daughter’s pediatrician, Raoufe Hanna M.D. and Community Medical Center (CMC), alleging a negligent failure to diagnose the minor’s hip dislocation following her birth at CMC on December 20, 1986, and prior to her discharge on December 22,1986. Plaintiffs contend that their child’s hip dislocation was not diagnosed until 1990 and assert that the failure of Dr. Hanna and CMC’s nurses to detect this condition caused the minor to undergo an open reduction with femoral shortening and adductor tenotomy on March 18, 1991. (See dkt. entry no. 4.)

Since more than four years elapsed between the date of the alleged negligence in December 1986 and the commencement of this malpractice action on September 29, 1993, CMC has been defended in this case by the former Medical Professional Liability Catastrophe Loss Fund (now the Medical Care Availability and Reduction of Error (MCare) Fund) pursuant to section 605 of the Health Care Services Malpractice Act, 40 PS. § 1301.605 (repealed by the Act of March 20,2002, PL. 154, no. 13, §5104(a)(2), and replaced by 40 PS. §1303.715). For reasons that are not entirely clear from the record, the Fund has declined to provide coverage or a defense for Dr. Hanna in this matter. Dr. Hanna has opted not to defend this claim or otherwise participate in this litigation, and, as a consequence, a default judgment was entered against him on February 4,1997, as to liability only. {Id., no. 21.)

It is undisputed that Dr. Hanna was an independent contractor with staff privileges at CMC and was not an actual employee of CMC at the time that he treated the minor plaintiff there between December 20, 1986, and December 22,1986. In order to determine whether CMC could be found vicariously liable for the defaulted liability of Dr. Hanna, the parties agreed to first litigate the issue of whether Dr. Hanna was an ostensible agent of CMC when he treated the minor plaintiff between December 20,1986, and December 22,1986. At the conclusion of a jury trial limited to that ostensible agency question, the jury found that Dr. Hanna was not an ostensible agent of CMC during that time period. (Id., no. 61.)

Plaintiffs thereafter chose to proceed forward with their corporate liability and nursing negligence claims against CMC and a jury trial on those issues was scheduled for September 7, 2004. On the morning of September 3, 2004, President Bush spoke at a campaign rally at the Lackawanna County Stadium. According to the text of his remarks as published in the September 4, 2004 edition of The Scranton Times/The Tribune, President Bush discussed a variety of issues, including education, Medicare, the economy, unemployment, foreign trade, taxes, health insurance, Social Security, federal judges, “conservative values,” 9/11, terrorism, the Afghanistan and Iraq wars, and national security. During his 4,201 word address, the President also referenced medical malpractice and stated:

“I want to talk about a national issue that is of concern to millions here in Pennsylvania. Too many doctors, too many really fine healers are being forced out of practice because of the high cost of junk lawsuits. You cannot be pro-doctor and pro-patient and pro-plaintiff attorney at the same time.
“You have to choose. My opponent made his choice and he put him on the ticket. I made my choice, I’m standing with the docs and patients. We want medical liability reform now.
“Let me give you a quick story about what I’m talking about. I’m telling you this is a national problem that requires a national solution. Today, I met with Dr. Neal Davis from Carbondale. He told all his patients to come. And Mary Coar, one of his patients ... I want you to hear this story because it’s happening all across America.
“Last November, after 15 years of practice in Pennsylvania, Dr. Davis learned that his insurance company would no longer insure doctors in this state because of the junk lawsuits, because the law system here in terms of medicine is like a lottery. That’s what it’s like. And it’s unfair to patients. It’s unfair to doctors. It’s unfair to taxpayers. He found a new policy, but it said you had to give up delivering babies as a part of the coverage. That’s what’s happening to OB-GYN’s all across the country.
“That forced Mary, four months pregnant, to start driving 50 miles each way to see different doctors, a different doctor. When Mary’s daughter arrived this summer, she was delivered this summer by a doctor Mary had never met. She said T started to cry when he told me he was going to have to stop delivering.’ This is happening because the legal system has gone awry. We need medical liability reform now.” (Id., no. 72.)

At 3:24 p.m. on the last business day prior to the start of trial, the plaintiffs filed an emergency motion for a continuance alleging that “substantial prejudice ... has and will occur to the minor plaintiff because of the visit of President George W. Bush to Lackawanna County on Friday, September 3, 2004.” (Id., no. 71, ¶3.) In their motion, the plaintiffs contend that they “will be unable to obtain a fair an[d] equitable trial of this case in light of President Bush’s visit to Northeastern Pennsylvania, the contents of his speech, and how the contents of this speech will be disseminated across Lackawanna County.” (Id., ¶13.) Plaintiffs further submit that “[i]t would be entirely prejudicial and unfair to this minor plaintiff to require her to select a jury that has now been tarnished and tainted by President Bush’s visit to Lackawanna County.” (Id., ¶14.)

Prior to the commencement of jury selection on September 7, 2004, counsel for plaintiffs presented oral argument in support of the plaintiffs’ motion for a continuance and defense counsel submitted CMC’s arguments in opposition to the continuance request. At that time, plaintiffs were allowed to develop a record delineating the plaintiffs’ grounds for requesting a continuance of the trial. (Transcript of proceedings (T.P.) on 9/ 7/04, volume I, pp. 2-17, 32-34,40-42 filed as dkt. entry no. 73.) We deferred any ruling on the plaintiffs’ motion and directed counsel to question the prospective jurors during voir dire regarding their knowledge of President Bush’s remarks and the effect that those comments may have had on them. See e.g., Lopez-Stayer v. Pitts, 93 P.3d 904, 908 (Wash. App. 2004) (provided that counsel did not use the word “insurance,” plaintiff’s counsel in a medical malpractice action could “voir dire on the topics of ‘claims,’ ‘frivolous lawsuits,’ and the medical malpractice ‘crisis’ generally” since “the jury panel (as part of the general public) had been inundated with publicity about the medical malpractice crisis and its effect on the health care industry, including recent comments by the President of the United States in his State of the Union Address.”); Irish v. Gimbel, 691 A.2d 664, 675 (Me. 1997) (medical malpractice jurors were questioned during jury selection concerning their feelings on “issues such as tort reform and problems with the court system.”); Tighe v. Crosthwait, 665 So.2d 1337, 1341 (Miss. 1995) (trial court erred by refusing to allow medical malpractice plaintiff to conduct voir dire to determine if prospective jurors had been exposed to and affected by media campaign on “medical malpractice crisis” and “tort reform,” since that line of questioning “may have exposed juror biases affecting their ability to render a fair and impartial verdict.”). Specifically, counsel for the parties were instructed to question the jurors about their attitudes toward medical malpractice and tort reform in general in order to determine whether they could serve as fair and impartial jurors in this case. Additionally, since the plaintiffs established that the venire may have been exposed to the media coverage relating to President Bush’s comments on medical malpractice, we also directed counsel to question the prospective jurors regarding that subject and the impact, if any, it had on their ability to decide this case based solely on the evidence and the court’s legal instructions. (Dkt. entry no. 73, pp. 3-4, 34-39, 43, 45-46, 48-52.) See Barrett v. Peterson, 868 P.2d 96, 99-102 (Utah App. 1993) (holding that jurors should have been questioned “whether any of the prospective jurors had been exposed to tort reform and medical negligence propaganda” and stating that “[i]n light of the pervasive dissemination of tort reform information, and the corresponding potential for general exposure to such information by potential jurors, a plaintiff is entitled to know which potential jurors, if any, have been so exposed.”); Kozlowski v. Rush, 121 Idaho 825, 833-34, 828 P.2d 854, 862-63 (1992) (concluding that “a party may inquire whether jurors have been exposed to media accounts of a medical malpractice crisis” if the plaintiffs first “demonstrate to the court that potential jury members may have been exposed to such advertisements.”); Sutherlin v. Fenenga, 111 N.M. 767, 776, 810 P.2d 353, 362 (N.M. Ct. App. 1991) (malpractice plaintiff may conduct a good faith voir dire inquiry into malpractice crisis issues “upon a proper showing that members of the prospective jury panel may have been exposed to media accounts concerning allegations about the effect of jury awards on insurance costs.”), cert. den., 111 N.M. 678, 808 P.2d 963 (N.M. 1991); Kelman v. Motta, 564 So.2d 147, 148-49 (Fla. App. 1990) (malpractice plaintiff questioned jurors about impending vote on ballot proposition relating to malpractice insurance crisis); Babcock v. Northwest Memorial Hospital, 767 S.W.2d 705, 709 (Tex. 1989) (patient should have been permitted to question venire panel about alleged “lawsuit crisis” or “liability crisis” in order to discover any “bias or prejudice resulting from the controversy over tort reform ....”). Compare Fleishman v. Smith, 26 Phila. 218, 262 (1993) (denying request to voir dire potential jurors regarding medical malpractice crisis since plaintiffs “made no showing that the jurors impaneled on voir dire may have been exposed to media coverage concerning the issues on which the plaintiffs sought to question them.”), aff’d, 435 Pa. Super. 630, 644 A.2d 812 (1994) (memorandum), appeal denied, 540 Pa. 600, 655 A.2d 989 (1995). If counsel’s questioning of the jurors revealed that 12 jurors and two alternate jurors could not be selected due to their fixed opinions concerning medical malpractice, tort reform or President Bush’s statements, we advised counsel for the parties that plaintiffs’ motion for a continuance would be granted. Conversely, if an acceptable jury could be seated following the parties’ voir dire, the plaintiffs’ continuance request would be denied. (Dkt. entry no. 73, pp. 43, 48-52.)

Of the 61 jurors who were questioned during voir dire, fewer than half of them stated that they had seen, read, or heard about President Bush’s remarks pertaining to malpractice lawsuits. More importantly, none of those jurors indicated that the President’s comments affected their ability to fairly and impartially decide this malpractice case based solely on the evidence and the law. (T.P. 9/7/04, vol. II, pp. 2-3, 7-8, filed as dkt. entry no. 74.) Although several jurors were dismissed for cause due in part to their firm aversion to malpractice claims which admittedly affected their ability to be fair and impartial jurors, none of those jurors ascribed their fixed opinions to President Bush’s statements. (Id., pp. 3-7.) Hence, even after excusing certain jurors for cause and following the parties’ exercise of their peremptory challenges under Pa.R.C.P. 221, the parties were able to select 12 jurors and two alternate jurors from the first 30 members of the 61-member venire. (Id., p 8.)

Pursuant to Pa.R.C.P. 216(A), a litigant may secure a continuance based upon the illness of counsel or a material witness, the inability to subpoena or obtain testimony from a material witness, the attachment of counsel to appear or participate in a disciplinary proceeding involving a lawyer or judicial officer, or “[sjuch special ground as may be allowed in the discretion of the court.” The trial court is vested with broad discretion in determining whether to grant a request for a continuance and that decision should not be disturbed on appeal unless an abuse of discretion is apparent. Corrado v. Thomas Jefferson University Hospital, 790 A.2d 1022, 1035 (Pa. Super. 2001), reargument denied, (Mar. 1, 2002). Plaintiffs were granted wide latitude in questioning prospective jurors regarding President Bush’s statements and their effect on the jurors. Plaintiffs did not seek to dismiss a single juror based upon the juror’s exposure to President Bush’s speech, and no such challenge for cause was denied by the court. (T.P. 9/7/04, pp. 2-8.) Nor did the plaintiffs demonstrate that the ongoing medical malpractice debate will subside in the near future such that a continuance of the trial may arguably make it less likely that the venire will be exposed to information relating to malpractice litigation, tort reform and the like. In light of the scope and results of the voir dire relative to medical malpractice and tort reform issues, there is no “special ground” under Pa.R.C.P. 216(A)(4) to postpone the trial of this case which has now been pending for 11 years.

And now, September 7, 2004, upon consideration of “Plaintiffs’ emergency motion for continuance,” the oral argument of counsel and the results of the parties’ voir dire, and based upon the reasoning set forth above, it is hereby ordered and decreed that plaintiffs’ emergency motion for continuance is denied.


author: KUNSELMAN, P.J.,

text:
    Commonwealth v. Pugh

      C.P. of Beaver County,
    no. 871-1985.

      Dale Fouse, district attorney, for plaintiff.

      Harry Pugh, pro se.
    September 23, 2004
   KUNSELMAN, P.J.,

Petitioner Harry Pugh has filed a petition for relief under the Post-Conviction Relief Act, alleging that the United States Supreme Court’s ruling in Blakely v. Washington, 124 S.Ct. 2531 (2004), should be applied retroactively to his sentence. We shall dismiss the PCRA petition without a hearing.

PROCEDURAL HISTORY

On November 13, 1985, defendant Harry Pugh was sentenced by this court on his plea to one count of rape to 72 to 240 months. On the same day, the Commonwealth presented a petition requesting the court approve a nolle prosequi as to the remaining counts of the information. The order was entered that day approving the nolle prosequi.

On April 18, 1989, the petitioner filed a petition for relief under the Post-Conviction Hearing Act. After petitioner’s counsel was permitted to withdraw, petitioner filed a pro se brief on August 18, 1989. His sole claim for relief was his argument that his sentence was invalid because the entire information was nolle prosequi. We found otherwise, and entered an order dismissing the petitioner’s PCHA petition.

Now, approximately eight years after the expiration of time to file a timely petition under 42 Pa.C.S. §9545 (b), petitioner has filed a second PCRA petition, claiming that the exception set forth in section 9545(b)(l)(iii) applies. Pugh argues that the United States Supreme Court’s holding in Blakely, supra, should be applied retroactively. At the time Pugh was sentenced, this court enhanced his minimum sentence because we found that a deadly weapon was used in this case.

On August 31,2004, pursuant to Pa.R.Crim.P. 907(1), we gave notice to the petitioner of our intention to dismiss his PCRA petition without a hearing and to give the petitioner an opportunity to respond. A timely response was filed, and this opinion addresses our reasons for dismissing the PCRA petition without a hearing.

ISSUES PRESENTED FOR REVIEW

This petition raises the following issues that we will address:

(1) Whether the petitioner has filed a PCRA petition that falls under the exception of 42 Pa.C.S. §9545(b) (D(iii)?

(2) Whether the United States Supreme Court’s holding in Blakely v. Washington, supra, applies to the Pennsylvania sentencing guidelines?

(3) Whether the petitioner has made a prima facie showing that a miscarriage of justice has occurred so as to warrant a review of his second post-conviction petition?

DISCUSSION

1. Exception Under Section 9545(b)(l)(iii) and Blakely’s Retroactive Effect

The petitioner in this case asserts that the holding in Blakely v. Washington applies retroactively and thus the enhancement of his minimum sentence was unlawful.

A defendant has a right to file a petition for relief under the Post-Conviction Relief Act within one year of the date the judgment becomes final. 42 Pa.C.S. §9545(b)(1). However, an exception applies to this time requirement under 42 Pa.C.S. §9545(b)(l)(iii). Under this exception, a PCRA petition may be filed outside of the one-year time requirement if: “the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.”

Any petition invoking this exception must be filed within 60 days of the date the claim could have been presented. 42 Pa.C.S. §9545(b)(2). The Supreme Court of the United States issued its decision in Blakely on June 24, 2004. Petitioner filed his PCRA petition on August 20, 2004. However, the exception under section 9545(b)(l)(iii) does not apply because Blakely is distinguishable from the case at bar.

Blakely concerned Washington state’s determinate sentencing system, which allows a trial judge to elevate the maximum sentence permitted by law on the basis of facts not found by the jury but by the judge. People v. Claypool, 470 Mich. 715, 730 n.14, 684 N.W.2d 278, 286 n.14 (2004). Thus, the trial judge in that case was required to set a fixed sentence imposed within a range determined by guidelines and was able to increase the maximum sentence on the basis of judicial fact-finding. See Blakely v. Washington, 124 S.Ct. 2531 (2004). The Supreme Court of the United States held that this system was in violation of the Sixth Amendment because the facts that led to the sentence were not found by the jury. Blakely, 124 S.Ct. at 2536.

Pennsylvania, in contrast to Washington, has an indeterminate sentencing system in which the defendant is given a sentence with a minimum and a maximum. The maximum is set by the trial judge but cannot exceed the maximum set by law. The minimum is based on guideline ranges under the sentencing guidelines. See 204 Pa. Code §§303.1-303.18. The trial judge sets the minimum but can enhance that minimum if certain criteria are met. In the present case, the petitioner was found to have used a deadly weapon in the commission of the crime. Therefore, under the sentencing guidelines, this court was permitted to add 12 to 24 months onto the petitioner’s minimum sentence. When the petitioner was sentenced, his minimum sentencing period was within the minimum sentencing guidelines. Accordingly, the Pennsylvania system is unaffected by the holding in Blakely that was designed to protect the defendant from a higher maximum sentence based on facts not found by the jury in violation of the Sixth Amendment.

The majority in Blakely made it clear that indeterminate sentencing schemes were not affected by its ruling. The court stated:

“Justice O’Connor argues that, because determinate sentencing schemes involving judicial fact-finding entail less judicial discretion than indeterminate schemes, the constitutionality of the latter implies the constitutionality of the former. Post at 2543-2548. This argument is flawed on a number of levels. First, the Sixth Amendment by its terms is not a limitation on judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury. Indeterminate sentencing does not do so. (emphasis added) It increases judicial discretion, to be sure, but not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty. Of course indeterminate schemes involve judicial fact-finding, in that a judge (like a parole board) may implicitly rule on those facts he deems important to the exercise of his sentencing discretion. But the facts do not pertain to whether the defendant has a legal right to a lesser sentence — and that makes all the difference insofar as judicial impingement upon the traditional role of the jury is concerned.” Blakely, supra at 2540.

In sum, the holding in Blakely does not affect the sentencing guidelines of Pennsylvania, and therefore the petitioner was not erroneously sentenced.

Even if Blakely were to apply to this case, the holding is not to be applied retroactively. Nothing in the majority’s opinion in Blakely indicates that it should apply retroactively. Because of this, we are not inclined to extend the holding of Blakely to this petitioner who was sentenced almost 20 years ago.

2. Repetitive PCRA Petitions

A final issue that must be dealt with is the petitioner’s attempt to file a second PCRA petition approximately eight years after the time period has expired to file a proper one.

In Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988), the Supreme Court of Pennsylvania addressed the problems posed by repetitive post-conviction petitions. In that case, the defendant filed numerous post-conviction petitions raising ineffectiveness of counsel for counsel’s failure to raise the issue of the length of time it took for defendant’s case to go to trial. In attempting to balance the concern for assuring persons charged with crimes receive competent representation in their defense with the need for finality, the court stated that it would not allow repeated petitions to be used as a ploy to destroy the finality of judgments fairly reached. Lawson, 519 Pa. at 513, 549 A.2d at 111-12. Therefore, the court concluded that a “second or any subsequent post-conviction request for relief will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Id.

“A repetitive or serial petition may be entertained only for the purpose of avoiding a demonstrated miscarriage of justice, which no civilized society can tolerate.” Lawson, 519 Pa. at 513-14, 549 A.2d at 112. In the present case, the petitioner has failed to show that his sentence “demonstrate[s a] miscarriage of justice.” The holding in Blakely does not affect the sentence that he received and he has not contended that he is innocent.

A petition for post-conviction relief may be dismissed without a hearing if the court finds that there exist no genuine issues as to any material fact so as to warrant a hearing. Pa.R.Crim.P. 907(1). Because we have found that the holding in Blakely is distinguishable from the case at bar and that it is not to be applied retroactively, a hearing would serve no purpose other than to waste the court’s time and resources. In addition, petitioner has failed to demonstrate a miscarriage of justice which no civilized society can tolerate. Therefore, the petitioner’s petition for post-conviction relief will be dismissed without a hearing.

We enter the following order.

ORDER

The petition for post-conviction relief filed on behalf of Harry Pugh is dismissed without hearing. Petitioner is notified that he has a right to appeal from this order within 30 days.

The clerk of courts of Beaver County shall mail a copy of this opinion and order to the petitioner by certified mail, return receipt requested, and to the district attorney of Beaver County and note the mailing on the docket.

      . Section 9545(b)(1)(iii) permits a PCRA petition to be filed after the one-year time limit if “the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.”


author: FARINA, J.,

text:
    Commonwealth v. Murray

      C.P. of Lancaster County,
    no. 1367 CR 1999.

      Janna R. Steinruck, assistant district attorney, for Commonwealth.

      R. Russell Pugh, for defendant.
    August 27, 2004
   FARINA, J.,

Presently before the court is the Commonwealth’s request that the defendant be referred for sexually violent predator (SVP) assessment pursuant to 42 Pa.C.S. §9795.4. Defendant contends that such referral is unconstitutional and objects to being referred to the State Board to Assess Sexually Violent Predators.

On March 14, 2001, defendant was found guilty of one count of attempt to commit involuntary deviate sexual intercourse, one count of aggravated indecent assault, one count of indecent assault and one count of corruption of minors. At the time of sentencing on August 30, 2001, this court denied the Commonwealth’s request that the defendant undergo assessment by the board after granting the defendant’s motion for extraordinary relief which challenged the constitutionality of the SVP provisions of Megan’s Law II. The Commonwealth appealed this court’s decision.

Defendant appealed his sentence and on November 19, 2003, the Superior Court ordered that the defendant be re-sentenced. This court re-sentenced the defendant on February 23,2004. On March 23,2004, the Supreme Court of Pennsylvania decided the Commonwealth’s appeal and remanded the case for proceedings consistent with Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003). This court then issued a rule to show cause why the defendant should not undergo the mandatory assessment by the board. The defendant objects and argues that Megan’s Law II is unconstitutional and cannot be applied to him.

The defendant claims that Megan’s Law II cannot be constitutionally applied to him for six reasons: (1) that Megan’s Law II cannot be retroactively applied to him; (2) that SVP assessment, report, hearing and notice to defendant cannot occur after sentencing; (3) that referral has been waived by the Commonwealth; (4) that this court has no jurisdiction to act in this matter; (5) that the registration, verification and reporting requirements are not enforceable against this defendant and no useful purpose would be served by SVP assessment; and (6) that a hearing is required challenging the punitive effect of Megan’s Law II and the factually erroneous legislative findings. The Commonwealth responds that each of these issues has been resolved against the defendant. I agree with the Commonwealth that most of the issues raised by the defendant have been decided against him by previous decisions. Some issues, relating to whether Megan’s Law II is so vague that it is rendered excessive, however, remain to be decided and will require a hearing at a later date. Thus, I will resolve defendant’s retroactivity, timeliness, waiver, jurisdiction and useful purpose claims at this time.

Regarding the retroactive application of the SVP provisions of Megan’s Law II, the defendant argues that, because he was charged by information on May 25,1999, prior to the effective date of Megan’s Law II, he cannot be subjected to the SVP provisions. Defendant points to section 5 of Senate Bill 380, the bill which enacted Megan’s Law II, published at P.L. 74, No. 18, §3, May 10, 2000, claiming that this provision clearly exempts him from the SVP provisions. The defendant argues that subsection 2, which clearly applies to defendant, is mitigated by the general policy statement in subsection 1 which states that Megan’s Law II applies to “proceedings initiated on or after the effective date of this Act.” As proceedings against the defendant were initiated on May 25, 1999, and Megan’s Law II was not effective until July 9,2000, defendant argues that Megan’s Law II does not apply to him.

As the Commonwealth points out, Megan’s Law II is not being applied retroactively to the defendant and he is clearly subject to the SVP provisions of Megan’s Law II by the plain language of section 5(2) of Senate Bill 380. Subsection 2 states that Megan’s Law II applies to individuals incarcerated or convicted after the effective date of this Act. Defendant was convicted on March 14, 2001, several months after the effective date of Megan’s Law II. Defendant is clearly subject to the SVP provisions. Further, the Superior Court has held that Megan’s Law II applies to individuals convicted before the effective date of the Act, so long as the individual “remains in the custody of correctional authorities to discharge any part of his sentence for the sex offense.” Commonwealth v. Benner, 2004 WL 1418798 (Pa. Super. June 25,2004). As the Superior Court has determined that Megan’s Law II can apply to individuals convicted before the effective date, it can certainly apply to individuals convicted after the effective date.

Defendant next contends that he cannot be referred to the board because the steps specified in Megan’s Law II to conduct the SVP assessment have not been followed. Under section 9795.4, a defendant is to be referred to the board after conviction, but before sentencing. Additionally, a court is to specifically inform any individual designated an SVP of his obligations under Megan’s Law II at the time of sentencing. 42 Pa.C.S. §9795.3. Here, the defendant has been sentenced twice and was never assessed by the board prior to sentencing or informed by the court of his Megan’s Law 13 obligations. As the statutory scheme has not been followed, the defendant claims that this court cannot now require him to be assessed by the board.

As pointed out by the Commonwealth, this contention is without merit. This court held that Megan’s Law 33 was unconstitutional acting upon defendant’s motion for extraordinary relief. That decision was still in effect, and under appeal by the Commonwealth, at the time of defendant’s second sentencing. As the issue was under appeal, this court was without jurisdiction to act further on the case, except as remanded by the Superior Court to correct the error in defendant’s sentence. Commonwealth v. Pearson, 454 Pa. Super. 313, 325, 685 A.2d 551, 557 (1996). Defendant was not referred for SVP assessment at his own request. He cannot now complain that the assessment did not occur at the proper time.

The defendant further argues that because Williams was decided prior to the defendant’s second sentencing, the Commonwealth knew or should have known that this case would be remanded and, thus, should have complied with sections 9795.3 and 9795.4. As the Commonwealth did not do so, they waived their ability to refer the defendant for assessment. This argument is also without merit. Until the defendant’s case was remanded by the Pennsylvania Supreme Court, this court had no jurisdiction to apply Megan’s Law II to the defendant. Pa.R.A.P. 1701(a). As the case has now been remanded, this court is bound to follow the directive of the Pennsylvania Supreme Court and proceed consistent with Williams.

Defendant argues that this court has no jurisdiction to now modify the defendant’s sentence pursuant to Megan’s Law II because that sentence is currently under appeal. 42 P.S. §5505 and Pa.R.A.P. 1701(a). Further, the Commonwealth took no timely action to preserve the Megan’s Law II directives by filing a motion to modify sentence or a post-sentencing motion. Defendant is correct that this court could not modify the sentence during the pendency of the appeal, however, Williams established that the SVP provisions of Megan’s Law II are not punitive in nature. 574 Pa. 487, 506, 832 A.2d 962, 973 (2003). As such requirements do not constitute punishment and are not part of the defendant’s sentence, requiring him to now comply is not a modification of his sentence.

Defendant also complains that referring him for SVP assessment serves no useful purpose because our Supreme Court invalidated the enforcement provisions of Megan’s Law II. In Williams, the court determined that these provisions were “manifestly in excess of what is needed to ensure compliance, they must be considered punitive, and thus, unconstitutional insofar as they purport to apply to ... sexually violent predators.” 574 Pa. 487, 526, 832 A.2d 962, 985 (2003). As there is no penalty for failing to comply with the registration, notification and counseling provisions, there is no point in requiring defendants to be assessed by the board. This contention is without merit. As the Commonwealth notes, the Supreme Court stated that a failure by an SVP to comply could be enforced by a contempt proceeding, so, clearly, a mechanism exists to ensure compliance. Id. As stated by the legislature, the point of Megan’s Law II is to protect the public from potentially dangerous sexual predators.

Finally, the defendant argues that Williams left open several issues requiring a hearing. In Williams, the Pennsylvania Supreme Court left open the void for vagueness challenge and “its implications in terms of the remedial versus punitive dynamics of the statute.” 574 Pa. 487, 525 n.23, 832 A.2d 962, 984 n.23. Our Supreme Court has wrapped those issues together, stating that they did not decide whether Megan’s Law II is so vague that it “renders the statute unconstitutionally punitive through excessiveness.” Williams, 574 Pa. at 522, 832 A.2d at 983. The court stated that, as there was an absence of proof in the record of such vagueness, the appellees have not carried their burden to establish excessiveness. Id. at 524, 832 A.2d at 984. This court defers decision on these issues until a hearing can be held as discussed in the August 25,2004 opinion in Commonwealth v. Jesus Gaytan, no. 1103 CR 2000.

Accordingly, I enter the following:

ORDER

And now, August 27, 2004, it is hereby ordered and decreed that defendant’s objections to his referral to the State Board to Assess Sexually Violent Predators are denied, except the court defers decision on the issue requiring a hearing, as discussed in the foregoing opinion.

      . Section 5 of Senate Bill 380 states:
      “Section 5. This Act shall apply as follows:
      “(1) To proceedings initiated on or after the effective date of this Act.
      “(2) The reenactment and amendment of 42 Pa.C.S. ch. 97 subch. H shall apply to individuals incarcerated or convicted on or after the effective date of this Act.
      “(3) This Act shall not affect the requirements for individuals registered pursuant to 42 Pa.C.S. ch. 97 subch. H prior to the effective date of this Act.”