author: ZULICK, J.,

text:
    Land Tycoon, Inc. v. Wells Fargo Bank, N.A.

      C.P. of Monroe County,
    No. 2300 CV 2013

      Richard C. Frank and Anthony Roberti, for plaintiffs.

      Sandhya M. Feltes, for defendant.
    December 9, 2013 —
   ZULICK, J.,

This matter comes before the court on Wells Fargo Bank, N.A.’s petition to open default judgment (the petition). In July, 2006, Faye James purchased property located at 28 Eagle Drive, East Stroudsburg, Pennsylvania (the property). To finance the purchase, Ms. James acquired a first and second mortgage from New Century Mortgage Corporation. The first mortgage was thereafter assigned to Wells Fargo. The second mortgage was assigned to Credit Based Asset Servicing and Securitization, LLC (Credit Based).

In September 2008, Credit Based, holder of the second mortgage, instituted a mortgage foreclosure against Ms. James. A judgment was ultimately obtained, and the property was sold at sheriff’s sale in April, 2010. Following that sale, the sheriff issued a deed, in error, to Wells Fargo, despite Wells Fargo not being the creditor exposing the property to the sheriff’s sale, and not being the winning bidder. The sheriff then issued a corrective deed to credit based, which took ownership under and subject to Wells Fargo’s first mortgage. The property was deeded several times in 2010, eventually becoming the property of Whole Loan Trust 2010, LLC.

In 2011, Wells Fargo instituted a mortgage foreclosure action upon its first mortgage. In 2012, during the pendency of the foreclosure action, Land Tycoon and Monroe Funding Group, LLP, a non-party to this action, purchased the property at the September, 2010 upset tax sale. Land Tycoon then moved to intervene in the Wells Fargo mortgage foreclosure action.

On March 7, 2013, the Honorable Stephen M. Higgins denied the petition to intervene. Land Tycoon appealed that decision, which is still pending before the Commonwealth Court of Pennsylvania. On March 13, 2013, plaintiffs instituted this quiet title action. Plaintiffs served Wells Fargo at a branch in South Carolina, which was unrelated to the mortgage foreclosure litigation and is not Wells Fargo’s principle place of business. Plaintiffs provided no notice to counsel for Wells Fargo, although they were in litigation with Wells Fargo at the time over that very mortgage. Wells Fargo did not respond, and plaintiffs obtained a default judgment on July 31, 2013. That judgment was made final by the prothonotary on September 5, 2013. Wells Fargo filed its petition to open default judgment on September 6, 2013. Plaintiffs opposed the petition. Both parties filed briefs in support of their positions. The matter was argued before the court on November 4, 2013.

DISCUSSION

“A petition to open judgment is a matter of judicial discretion.” Boyle v. Horstman, 457 A.2d 518, 520 (Pa. Super. 1983). “The grant or denial of a petition to open a default judgment is a matter vested in the sound discretion of the trial court, whose decision thereon will not be reversed in the absence of an abuse of discretion or error of law.” Bildstein v. McGlinn, 467 A.2d 601, 602 (Pa. Super. 1983). The traditional criteria for opening a default judgment require that a petition to open default judgment must be: “(1) promptly filed, (2) state an adequate excuse why a timely answer was not filed, and (3) show a meritorious defense.” Ridgid Fire Sprinkler Service, Inc. v. Chaiken, 482 A.2d 249, 251 (Pa. Super. 1984) (internal citations and quotation marks omitted). “All three criteria must be met, and the three requirements must ‘coalesce’.” Id. (internal citations and quotation marks omitted).

The civil rules have specifically addressed the relief available to open a default judgment in P.R.C.P. 237.3. The rule relaxes the petitioner’s burden in opening a default judgment if the petition is filed within ten days of the default judgment:

[i]f the petition is filed within ten days after the entry of the judgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense.

P.R.C.P. 237.3(b).

Rule 237.3 does not change the law of opening default judgments. Rather, it “supplies two of the three requisites for opening [default] judgments...by presuming that a petition filed within the required ten-day period is both promptly filed and with reasonable explanation or legitimate excuse for the inactivity or delay.” Cohen v. Mirin, 729 A.2d 1236, 1237 n. 3 (Pa. Super. 1999). Flynn v. America West Airlines, 742 A.2d 695, 698 (Pa. Super. 1999).

Wells Fargo is entitled to the benefit of Rule 237.3 in this case because its petition was promptly filed. Final judgment was entered by the prothonotary on September 5, 2013. Wells Fargo filed its petition to open default judgment on September 6,2013, the next day. Wells Fargo has thus established the requirement that its petition be promptly filed and with reasonable explanation for the delay.

Finally, Wells Fargo has pled a meritorious defense in support of their petition. “In order to satisfy the meritorious defense requirement, the defendant need only plead a defense which, if proved at trial, would justify relief.” Estate of Considine v. Wachovia Bank, 966 A.2d 1148, 1152 (Pa. Super. 2009). In fact, Wells Fargo advances several defenses, all of which, if proven at trial, would justify a finding in their favor.

First, Wells Fargo argues that this quiet title action is barred by the principle of res judicata. The doctrine of res judicata prevents parties from litigating the same issue more than once. “For the doctrine of res judicata to prevail, there must be a concurrence of four conditions: 1) Identity in the thing sued upon; 2) Identity of the cause of action; 3) Identity of persons and parties to the action; and, 4) Identity of the quality or capacity of the parties suing or sued.” Stevenson v. Silverman, 208 A.2d 786, 787-88 (Pa. 1965).

Here, Wells Fargo alleges that the quiet title complaint should be barred by res judicata. The lender contends that the plaintiff’s motion to intervene in the mortgage foreclosure case, which was denied by Judge Higgins and is currently on appeal to the Commonwealth Court, presented a substantially similar issue to that raised in this quiet title action. Both the petition to intervene and this quiet title action rest on the premise that when the Monroe County sheriff incorrectly issued Wells Fargo a deed following the 2010 sheriff’s sale, the deed and mortgage merged. Wells Fargo became the owner of the property free and clear of the mortgage. Therefore, plaintiffs argue, when they purchased the property in the 2012 upset tax sale, the mortgage did not exist, and plaintiffs took ownership free and clear of Wells Fargo’s first mortgage. Plaintiffs’ motion to intervene was unsuccessful; judge Higgins denied the motion.

When a court of competent jurisdiction has determined a litigated cause on its merits, the judgment entered and not reversed on appeal is, as between the parties to the suit and their privies, final and conclusive with regard to every fact which might properly be considered in reaching a judicial determination and with regard to all points of law adjudged as those facts and points of law relate directly to the cause of action in litigation.

Stevenson, 208 A.2d at 788. If Wells Fargo proves that the doctrine of res judicata bars this quiet title action, Wells Fargo would be entitled to relief. Therefore this defense is meritorious.

Next Wells Fargo alleges that plaintiffs purchased the property subject to Wells Fargo’s lien on the Property. The Pennsylvania Tax Sale Law, 72 P.S. § 5860.601, et seq., provides:

§5860.609. Nondivestiture of liens
Every such sale shall convey title to the property under and subject to the lien of every recorded obligation, claim, lien, estate, mortgage, ground rent and Commonwealth tax lien not included in the upset price with which said property may have or shall become charged or for which it may become liable.

72 P.S. § 5860.609. In other words, “[i]n an upset [tax] sale property is sold subject to all unpaid taxes, liens and costs.” Bell v. Berks County Tax Claim Bureau, 832 A.2d 587, 589 n.3 (Pa. Cmwlth. 2003). Wells Fargo alleges that their mortgage was recorded properly in 2006, and has not been satisfied. The tax sale took place in 2012 and the tax sale title was under and subject to this outstanding mortgage. If these facts were proven true, Wells Fargo would be entitled to relief. Therefore, this too is a meritorious defense.

Finally, in the alternative, Wells Fargo argues that even if plaintiffs are correct and the mortgage merged with the erroneous sheriff’s deed following the 2010 sheriff’s sale, the 2010 tax sale was not valid because Wells Fargo was not given notice of the impending sale as required by the Real Estate Tax Sale Law, 72 P.S.§5860.601 et seq. (RETSL). Specifically, Wells Fargo contends that it was not given notice of the sale by certified mail as required by §602(e)(l), or first class mail as required by §602(e)(2) of the RETSL. “It is well established that notice provisions are to be strictly construed, and that strict compliance with such provisions is necessary to guard against deprivation of property without due process, and if any one is defective, the sale is void.” Ban v. Tax Claim Bureau of Washington County, 698 A.2d 1386, 1388 (Pa. Cmwlth. 1997). If Wells Fargo did not receive the required tax sale notices, the tax sale could be set aside. Therefore, this defense is also meritorious.

As Wells Fargo’s petition to open was promptly filed and states meritorious defenses, the petition to open will be granted.

ORDER

And now, this 9th day of December, 2013, upon consideration of Wells Fargo Bank’s petition to open default judgment, it is ordered as follows:

1. The petition to open default judgment is granted and the default judgments entered on July 30, 2013, and July 31, 2013 are opened.

2. Defendant shall file its answer to the complaint within twenty days as required by the rules of civil procedure.

      . Some confusion exists here because plaintiffs filed two motions for default judgment and obtained two different default orders in this case. The motions were filed on the same day, July 23, 2013 and at the same time, 9:43 a.m. One motion sought relief under P.R.C.P. 1066(b)(1) and one sought relief under P.R.C.P. 1066(b)(3). Two orders were issued, one on July 30, 2013 and one on July 31, 2013. The July 30, 2013 order granted relief under P.R.C.P. 1066(b)(1) and the July 31, 2013 order granted relief under P.R.C.P. 1066(b)(3). Both orders gave Wells Fargo thirty days to file exceptions to the order before it could be made final on praecipe. Plaintiffs filed one praecipe on September 5, 2013 to make both orders final. The next day, Wells Fargo filed a “Petition to Open Default Judgment.” Although the petition references only the July 30, 2013 default judgment, the court considers the petition to be directed to both default orders, which arose from service of the same complaint.


source: Caselaw Access Project

license: Public Domain

text:
    Leonard v. East Stroudsburg University

      C.P. of Monroe County,
    No. 4246 CV 2011

      Michael S. Ferguson, for plaintiff.

      Donald P. Russo, for defendant.
    December 9, 2013 —
   ZULICK, J.,

This is an action for damages and injunctive relief for an alleged employment retaliation in violation of the Pennsylvania Human Relations Act, 43 P.S. §955(d) and for age discrimination under the Age Discrimination in Employment Act of 1967, (ADEA) 29 U.S.C. §623(d). Plaintiff Delores Leonard commenced this action by praecipe for writ of summons filed on May 9, 2011. Her second amended complaint was filed on August 14, 2013.

Defendant East Stroudsburg University (ESU) has filed preliminary objections to count II of Ms. Leonard’s second amended complaint, in which she seeks relief for age discrimination under the ADEA. ESU contends that her suit is barred by the doctrine of sovereign immunity. Both parties briefed their positions, and the matter was argued before the court on November 5, 2013.

DISCUSSION

ESU’s preliminary objections are in the nature of a demurrer. In considering preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deductible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cm with. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn Title Insurance Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Albert v. Erie Ins. Exchange, 65 A.3d 923, 927 (Pa. Super. 2013) (citations omitted).

ESU is member of the Pennsylvania State System of Higher Education. 24 P.S. §20-2002-A. As part of the government of the Commonwealth of Pennsylvania. ESU enjoys the protections of sovereign immunity under both the state and federal Constitutions. Pa. Const. Art. 1 § 11; U.S. Const. Amend. 11. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010), Poliskiewicz v. East Stroudsburg University, 536 A.2d 472, 474 (Pa. Cmwlth. 1988). The Pennsylvania Constitution invests the legislature with the power to determine the circumstances under which the Commonwealth may be sued. To that end, it enacted 1 Pa.C.S. §2310, which provides:

Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is hereby declared to be the intent of the general assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the general assembly shall specifically waive the immunity. When the general assembly specifically waives sovereign immunity, a claim against the Commonwealth and its officials and employees shall be brought only in such manner and in such courts and in such cases as directed by the provisions of title 42 (relating to judiciary and judicial procedure) or 62 (relating to procurement) unless otherwise specifically authorized by statute.

1 Pa.C.S. §2310.

The second count of Ms. Leonard’s complaint seeks to hold ESU liable for violations of the ADEA, 29 U.S.C. § 621 et seq. That section provides, in part:

(a) Employer practices
It shall be unlawful for an employer-
(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;
(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or
(3) to reduce the wage rate of any employee in order to comply with this chapter.

29 U.S.C. § 623(a). Leonard has alleged that she was discriminated against, and ultimately discharged, because of her age, in violation of the ADEA.

ESU contends that the ADEA did not abrogate the Commonwealth’s sovereign immunity. ESU relies upon Kimel v. Florida Bd. of Regents, 528 U.S. 62, 91 (2000). In Kimel, the question before the Supreme Court was whether congress could subject the several states to liability under the ADEA despite sovereign immunity under state constitutions. The Kimel Court stated:

In light of the indiscriminate scope of the [ADEA’s] substantive requirements, and the lack of evidence of widespread and unconstitutional age discrimination by the states, we hold that the ADEA is not a valid exercise of congress’ power under §5 of the fourteenth amendment. The ADEA’s purported abrogation of the states’ sovereign immunity is accordingly invalid.

Kimel, 528 U.S. at 91. Kimel therefore stands for the proposition that a plaintiff may not subject a state actor or agency to damages under the ADEA when that state raises a sovereign immunity defense. ESU’s preliminary objection as to Leonard’s claim for damages will be granted.

Leonard also seeks injunctive and declaratory relief, seeking, inter alia, reinstatement to her past position of employment. While ESU correctly asserts that sovereign immunity bars the imposition of money damages upon the state or its actors, the same is not necessarily true of injunctive or declaratory relief. Our supreme court has characterized the difference as follows:

[t]he distinction is clear between suits against the Commonwealth which are within the rule of its immunity and suits to restrain officers of the Commonwealth from enforcing the provisions of a statute claimed to be unconstitutional. Suits which seek to compel affirmative action on the part of state officials or to obtain money damages or to recover property from the Commonwealth are within the rule of immunity; suits which simply seek to restrain state officials from performing affirmative acts are not within the rule of immunity.

Wilkinsburg Police Officers Ass ’n By and Through Harder v. Commonwealth of Pennsylvania et al., 535 A.2d 425, 430-31 (Pa. 1993) (emphasis in original). In short, “sovereign immunity does not bar a declaratory judgment action or injunction seeking to prohibit state parties from acting, [however] it does apply to an action seeking to compel state parties to act or seeking to obtain money damages or recover property from the Commonwealth.” Sears v. Corbett, 49 A.3d 463, 471 (Pa. Cmwlth. 2012). Leonard contends that an injunction granting her reinstatement is prohibitory (preventing the state from taking an illegal action, namely firing her in violation of the ADEA) and would merely return her to the state’s payroll.

The Third Circuit recently decided this question in a per curiam opinion in Smith v. Secretary of Dept. of Environmental Protection of Pennsylvania, 2013 WL 5071305 (3d Cir. 2013), the Third Circuit held that an injunction seeking reinstatement was not barred by sovereign immunity. The court distinguished between reinstatement and forcing a new hiring, opining:

There does appear to be agreement that injunctive relief returning a former employee to employment is permissible. However, the Supreme Court has stated that “a suit may fail... if the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign,” suggesting that a claim for injunctive relief requiring that a plaintiff be newly hired may be barred by the eleventh amendment.

Smith, 2013 WL at 2 (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n. 11, (1949)) (internal citations omitted). See also, Dotson v. Griesa, 398 F.3d 156, 178 (2d Cir. 2005) (finding the eleventh amendment did not bar claim for reinstatement to previous employment because it merely “return [ed] the former employee to the state’s payroll”); Ramirez v. P.R. Fire Serv., 715 F.2d 694, 697 (1st Cir. 1983) (finding reclassification of an employee not barred by eleventh amendment).

The exception to the sovereign immunity defense for prospective injunctive relief finds its origin in Ex Parte Young, 209 U.S. 123, (1908). In Ex parte Young, 209 U.S. 123 (1908), the Supreme Court created an exception to the general doctrine of sovereign immunity. The court stated:

The general discretion regarding the enforcement of the laws when and as he deems appropriate is not interfered with by an injunction which restrains the state officer from taking any steps towards the enforcement of an unconstitutional enactment, to the injury of complainant. In such case no affirmative action of any nature is directed, and the officer is simply prohibited from doing an act which he had no legal right to do. An injunction to prevent him from doing that which he has no legal right to do is not an interference with the discretion of an officer.

Id. at 159. The Supreme Court later interpreted Ex parte Young to stand for the principle “that the eleventh amendment does not prevent federal courts from granting prospective injunctive relief to prevent a continuing violation of federal law.” Green v. Mansour, 474 U.S. 64, 68 (1985). The reason for this is that “[bjoth prospective and retrospective relief implicate eleventh amendment concerns, but the availability of prospective relief of the sort awarded in Ex parte Young gives life to the supremacy clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.” Id. If states were allowed to routinely and continually flout federal law, then that law would not maintain its status as the supreme law of the land under the supremacy clause, U.S. Const. Art. VI Clause 2.

The Ex parte Young doctrine applies to states not only when sued in federal court, but also when sued in their own courts. See General Oil Co. v. Crain, 209 U.S. 211, (1908); Alden v. Maine, 527 U.S. 706, 747 (1999). The important distinction is that while Kimel held that sovereign immunity barred private actions for money damages, “[n]either Kimel, nor eleventh amendment jurisprudence, prevents individuals, such as the Gately plaintiffs, from obtaining injunctive relief against a state based upon the ADEA pursuant to Ex parte Young.” State Police for Automatic Retirement Ass’n. v. DiFava, 317 F.3d 6, 12 (1st Cir. 2003). In DiFava, the court distinguished money damages actions and requests for injunctive relief as remedies under the ADEA. The court stated:

Moreover, nothing was said in Kimel to question Wyoming’s determination that congress had extended the ADEA to cover state and local governments and their employees in addition to private firms and individuals. Nor did Kimel alter Wyoming’s holding that the ADEA’s regulation of state and local government workers did not violate the tenth amendment or other provisions of the constitution. All that Kimel held was that-although the ADEA remained a valid exercise of congress’s power under the commerce clause-this fact alone did not, and could not, enable congress to override a state’s eleventh amendment immunity against suit. Hence Kimel did not declare the standards of the ADEA invalid nor inapplicable as they pertained to the states, but simply endorsed the rights of states and political subdivisions to enforce against ADEA lawsuits the immunity conferred by the eleventh amendment.

Id. at 11-12.

A similar conclusion was reached by the Supreme Court of New Mexico in Gill v. Public Employees Retirement Bd. of Public Employee Retirement Ass ’n. of New Mexico, 90 P.3d 491 (N.M. 2004). In Gill, the court determined that the ADEA plaintiff, despite sovereign immunity, could still obtain prospective relief from New Mexico.

Here, the complaint alleges an ongoing violation of federal law, and at least with respect to the requested injunctive and declaratory relief, is properly characterized as prospective. Verizon Maryland, Inc. v. Public Service Com’n of Maryland, 535 U.S. 635, 645 (2002). The suit also does not implicate any unique sovereignty interests of the Commonwealth. See, e.g. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997).

However, an impediment to Leonard’s suit remains. Relief under Ex parte Young is available against state officers only, not East Stroudsburg University itself. See Verizon 535 U.S. at 648. When the state itself is named as the defendant, a suit against state officials that is in fact a suit against a state is barred regardless of whether it seeks damages or injunctive relief. See Cory v. White, 457 U.S. 85, 91, 102 S.Ct. 2325, 2329, 72 L.Ed.2d 694 (1982); Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101-102, 104 S.Ct. 900, 908 - 909 (1984). Since Leonard has commenced this action only against the university, and not an individual officer, the suit is barred by the eleventh amendment and Pennsylvania’s statutory sovereign immunity. Count II of plaintiff’s second amended complaint will be dismissed.

ORDER

And now, this 9th day of December, 2013, upon consideration of defendant’s preliminary objections, and the arguments and briefs of the parties, it is ordered that defendant’s preliminary objection to count II of the complaint is granted and that count is dismissed.

      . The fact that the requested relief, including attorney’s fees, will cause some expenditure from the state treasury is not dispositive. “The overriding question is not whether the relief will require the payment of state funds, but whether the relief will remedy future rather than past wrongs.” Harris v. Owens, 264 F.3d 1282, 1291 (10th Cir. 2001).


author: FORD, J.,

text:
    Commonwealth v. Carrillo-Quintero

      C.P. of Lehigh County,
    No 5366 of 2012

      Craig W. Scheetz, for Commonwealth.

      Maureen Coggins, Peter C. Bowers, Charles A. Banta and David D. Ritter, for defendants.
    December 10, 2013 —
   FORD, J.,

Defendants, Fanis Melo-Degonzalez (Melo-Degonzalez), Alfredo Junior Vargas (Vargas), Joel Carrillo-Quintero (CarrilloQuintero) and Joel Estrada-Anguiano (Estrada-Anguiano) were charged with drug-related offenses following their arrest on October 7, 2012. On that day, troopers of the Pennsylvania State Police stopped a vehicle in which defendants were traveling and seized illegal drugs found in the vehicle.

The four defendants have filed omnibus pretrial motions under Pa.R.Crim.P. 578. In these motions, defendants seek suppression of all evidence obtained following their arrests. In seeking suppression, the defendants argue that the troopers lacked reasonable suspicion or probable cause to detain them and to subsequently search the car in which they were traveling. The defendants have also filed habeas corpus petitions in which they contend that the Commonwealth has not produced prima facie evidence to support the drug charges filed against them. Finally, defendant Melo-Degonzalez has filed a motion under Pa.R.Crim.P. 583 requesting that her trial be severed from that of the other three defendants.

Hearings on defendants’ motions were conducted on September 4, 2013, and October 10, 2013. For the reasons that follow, the defendants’ suppression motions lack merit and must be denied. Additionally, because the Commonwealth met its burden of presenting prima facie evidence to support the drug charges against the defendants, the habeas corpus petitions must likewise be denied. Finally, because defendant Melo-Degonzalez failed to meet her burden of demonstrating that severance of her case from that of the other defendants is necessary to avoid her experiencing unfair prejudice, that motion must be denied.

Findings of Fact

On the morning of October 7, 2012, Trooper Jonathan Gerken of the Pennsylvania State Police was on patrol operating a marked police vehicle on westbound Interstate 78 in Lehigh County, Pennsylvania. Riding with Trooper Gerken was Trooper James Ford. Both troopers were wearing uniforms.

At 4:54 a.m., Trooper Gerken clocked a gray Nissan Altima with an Illinois license plate traveling at 72 miles per hour in an area with posted speed limit signs of 55 miles per hour. Trooper Gerken activated the lights and sirens on his marked police vehicle to stop the Altima. The driver of the Altima immediately pulled the vehicle to the right-hand shoulder of westbound 78 at mile marker 50, near the exit for State Route 100.

Trooper Gerken approached the driver-side window of the Altima. Inside the Altima, Estrada-Anguiano was sitting in the driver’s seat; Melo-Degonzalez was in the front passenger seat; Vargas was in the right rear passenger seat, and Carrillo-Quintero was in the left rear passenger seat. Trooper Gerken asked Estrada-Anguiano to produce his driver’s license and registration for the Altima. In response, Estrada-Anguiano produced an international driver’s license, but he did not possess an accompanying passport. Trooper Gerken believed the license was invalid without the passport. Estrada-Anguiano also gave the trooper a Thrifty Car Rental (Thrifty) agreement for the Altima. Under this rental agreement, Melo-Degonzalez, not Estrada-Anguiano, was the authorized driver of the vehicle. Trooper Gerken asked all occupants of the Altima to produce some form of identification. Melo-Degonzalez produced a valid Ohio driver’s license; Vargas showed a permanent resident card; and Carrillo-Quintero had a Mexican citizen identification card.

Trooper Gerken noticed an automobile air filter on the back seat console of the Altima. The trooper found this to be suspicious since the Altima was a rental vehicle. Additionally, Trooper Gerken noticed that the three male passengers, especially Estrada-Anguiano, were acting very nervously. The trooper saw a pulsation in a large vein in Estrada-Anguiano’s neck.

Trooper Gerken read in the rental agreement that the Altima should have been returned to Thrifty five days earlier. Therefore, Trooper Ford placed a telephone call to Thrifty. A Thrifty representative informed the trooper that the rental agreement had been extended and that the Altima was due to be returned to Thrifty in Cincinnati, Ohio, later that day.

Trooper Gerken observed that the rental agreement authorized a third-party rental of the Altima, whereby the person who arranged for the rental was not the authorized driver of it. Trooper Gerken, through his experience as a state trooper, understood that to be a not uncommon arrangement for persons wishing to conceal their identities while they traffic in illegal drugs.

In asking questions of Estrada-Anguiano and CarrilloQuintero, Trooper Gerken realized that the two men had a limited understanding of english, but he still was able to have some conversation with them. Through this questioning, the trooper concluded there was an inconsistency in the statements of the two men about the type of employment Estrada-Anguiano had. There was an insufficient basis for this conclusion due to the significant inability of these men to speak English. Trooper Gerken asked Estrada-Anguiano for his home address so he could prepare a written warning for speeding. EstradaAnguiano told the trooper that he did not know the zip code for his home address in Bakersfield, California. The trooper allowed Estrada-Anguiano to call his wife to get this information.

At approximately 5:40 a.m., Trooper Gerken telephoned Trooper Chad Labour of the Pennsylvania State Police K-9 unit who was then at home a considerable distance from the scene. Gerken requested that Labour come to the scene with his K-9 “Dano” to conduct a drug search of the Altima. Trooper Labour with Dano arrived at the scene at approximately 6:30 a.m.

After Trooper Labour arrived, Trooper Gerken approached Estrada-Anguiano who was standing at the rear of the Altima. The trooper presented EstradaAnguiano with a written warning for speeding and returned the four identifications provided by the occupants of the car. Trooper Gerken told Estrada-Anguiano that he was free to leave, but only if the Altima were driven by Melo-Degonzalez, the authorized driver under the rental agreement. Estrada-Anguiano began to walk to the front of the Altima, but then Trooper Gerken asked EstradaAnguiano to return for additional questions. EstradaAnguiano complied. Trooper Gerken asked EstradaAnguiano if he had any drugs or large sums of cash in the Altima. Estrada-Anguiano answered in the negative, but he turned and looked at the trunk of the Altima. With this, Trooper Gerken asked for consent to search the Altima. Estrada-Anguiano answered that he would have to ask Melo-Degonzalez for permission to search. Melo-Degonzalez refused to give permission to search. Trooper Gerken then ordered the other three occupants out of the car and told them to stand on the side of the highway. They remained by the highway without handcuffs.

Once the suspects exited the vehicle, Trooper Gerken asked Trooper Labour to check the vehicle with Dano. Because there was no consent to search, Trooper Labour planned to restrict the search to the outside of the Altima. He began with a safety check which included reaching into the Altima to ensure that the vehicle was in “park” and not running. Trooper Labour then had Dano perform a fast-paced sweep around the Altima. This initial sweep did not result in Dano’s indicating the presence of illegal drugs. Next, Trooper Labour had Dano do a more detailed search. Dano exhibited an “alert” near the front driver-side wheelwell. An “alert” happens when the K-9 detects the scent of illegal drugs, but it cannot pinpoint an exact point of origin. As Dano moved along the side of the Altima, he unexpectedly jumped through the front driver-side window which had been left open. Trooper Labour did not expect this behavior. Within a matter of seconds, Dano provided an “indication” that illegal drugs were located in the lower console area below the gearshift. An “indication” occurs when the K-9 detects the scent of illegal drugs and precisely locates the point of origin for that scent. Trooper Labour removed Dano from the vehicle after this “indication.”

At approximately 6:50 a.m., based on the above information, Trooper Gerken arrested the four defendants by placing them in handcuffs. The defendants were transported to the Fogelsville State Police Barracks. All defendants were interviewed by Gerken at the barracks. Prior to interviewing each defendant, Gerken read each person the Miranda rights. Trooper Angel Cruz, who is fluent in Spanish, assisted by translating the Miranda rights for each defendant. The four defendants waived their Miranda rights by indicating that they understood their rights and that they were willing to be interviewed. Each person made a statement to Trooper Gerken.

After Trooper Gerken obtained a warrant to search the Altima, he, Trooper Labour and Trooper James Hafner conducted a search of it at approximately 9:45 a.m.. The search revealed eight bundles of heroin with a total weight of 2902.5 grams (six pounds and six ounces). One bundle of heroin was located hidden in duct tape in the air filter compartment under the hood of the Altima. Other bundles were found secreted in duct tape in the trunk. The estimated street value of the heroin is $600,000.

Conclusions of Law

Suppression

The defendants contend that Trooper Gerken lacked reasonable suspicion or probable cause to detain them after an admittedly legitimate traffic stop and to subsequently search the Altima. For the reasons that follow, this contention lacks merit.

A defendant seeking suppression of evidence against him bears the preliminary burden of establishing that he has standing to challenge the admissibility of the evidence and a reasonable or legitimate expectation of privacy in the area searched. Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa. Super. 2011) (citation omitted). The Commonwealth concedes that all defendants have standing to challenge the search of the vehicle due to their being charged with possessory offenses. However, the Commonwealth asserts that the defendants did not have a reasonable expectation of privacy in the vehicle and its contents. While co-defendant Melo-Degonzalez met her burden of demonstrating a legitimate expectation of privacy in the Altima, the other three defendants made no such showing.

“An expectation of privacy is present when the individual, by his conduct, exhibits an actual (subjective) expectation of privacy and that subjective expectation is one that society is prepared to recognize as reasonable.” Commonwealth v. Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (quoting Commonwealth v. Jones, 874 A.2d 108, 118 (Pa. Super. 2005)). A defendant’s subjective expectation is not the determinant in evaluating the legitimacy of an expectation of privacy; rather, the inquiry focuses on the reasonableness of any expectation under the surrounding circumstances. Id.

Pennsylvania courts have held that, in order to demonstrate an expectation of privacy in a vehicle, a defendant must show a possessory interest in it. Commonwealth v. Arthur, 62 A.3d 424, 430 (Pa. Super. 2013). A defendant, at a minimum, must show that he owns the vehicle searched or that he was operating the vehicle with the permission of the owner. Id. at 429-30. Moreover, a defendant “has no legitimate expectation of privacy in a vehicle owned by a third party and solely used by a co-conspirator.” Id. at 430 (citation omitted). Under this rationale, the Superior Court has held that a defendant has no privacy interest in the trunk of a vehicle in which he is a passenger where the vehicle is registered to a third person. Commonwealth v. Powell, 994 A.2d 1096, 1107 (Pa. Super. 2010).

Here, the evidence shows that the Altima was owned by Thrifty and that co-defendant Melo-Degonzalez was an authorized driver of that vehicle under a third party rental agreement. Thus, Melo-Degonzalez had a legitimate possessory interest in the vehicle. She could reasonably expect that items she placed in the vehicle would remain private.

Without evidence of the relationship between Melo-Degonzalez and the other defendants, the court must conclude that these other three were passengers only with no privacy interest in what was under the hood and in the trunk of the vehicle. These three defendants did not own the Altima and there was no evidence that they had permission from Thrifty to operate the vehicle. Thus, none of these three defendants met the burden of demonstrating a reasonable expectation of privacy in the vehicle. Because defendants Vargas, Carrillo-Quintero and Estrada-Anguiano failed to meet their burden of showing a reasonable expectation of privacy in the Altima, their suppression motions must be denied.

With recognition that defendant Melo-Degonzalez has standing to seek suppression of the illegal drugs found in the Altima, I now address whether Trooper Gerken possessed the requisite level of proof to detain her and then search the vehicle.

Interactions among citizens and police officers require different levels of justification depending upon the nature of the interactions and whether or not the citizens are detained. Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super.2000). Contacts between the police and citizenry fall within three general classifications:

The first [level of interaction] is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an “investigative detention” must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally an arrest or “custodial detention” must be supported by probable cause.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa. Super. 2011) (quoting Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa. Super. 2005)).

Reasonable suspicion [supporting an investigative detention] exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of intrusion warrant a [person] of reasonable caution in the belief that the action taken was appropriate.

Commonwealth v. Goldsborough, 31 A.3d at 306 (quoting Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005)). Reasonable suspicion is determined objectively under the totality of the circumstances. Commonwealth v. Stevenson, 894 A.2d 759, 771 (Pa. Super. 2006) (citation omitted).

If there is a legitimate investigative detention, how long may it last?

[W]hile “the brevity of the invasion of an individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion”, “its cases imposed no rigid time limits on Terry stops.” Thus,... [a] key factor to be examined in determining if a detention lasts too long to be justified as an investigative stop, is whether “the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”

Commonwealth v. Ellis, 541 Pa. 285, 296, 662 A.2d 1043, 1048 (1995) (quoting United States v. Sharpe, 470 U.S. 675, 685, 105 S.Ct. 1568 1575 (1985)).

“Probable cause to arrest exists when the facts and circumstances within the police officer’s knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.” Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005)(quoting In re C.C.J., 799 A.2d 116, 121 (Pa. Super. 2002)).

After the legitimate speeding stop by Trooper Gerken, his observations of the car and its occupants gave him reasonable suspicion that criminal activity, namely, transportation of drugs, was afoot. The trooper’s suspicion arose when he discovered that the defendants were operating the vehicle with a third-party rental agreement; a car part, the air filter, meant for under the hood was in the middle of the backseat of the rented Altima; the driver was unable to state his complete home address; and the driver showed signs of unusual nervousness.

With this reasonable suspicion of criminal activity, Trooper Gerken was authorized in calling Trooper Labour at approximately 5:40 a.m., about 46 minutes after the initial stop, to have Labour conduct a drug search with his K-9. See Commonwealth v. Martin, 626 A.2d 556, 559-60 (Pa. Super. 1993) (holding that a K-9 sniff of the exterior of an automobile is a search that must be supported by reasonable suspicion).

After the initial stop of the Altima until the K-9 drug search, the police diligently pursued a course to confirm or dispel the suspicion of crime. The troopers verified the four out-of-state identifications, checked out the rental car agreement and ascertained the full home address for Estrada-Anguiano. They did all of this on the side of an interstate highway before dawn while keeping proper observation of four unknown adults. Throughout this time, the defendants were as comfortable as the troopers. No one was cuffed. This was a proper investigative detention supported by reasonable suspicion.

The K-9’s indicating the presence of drugs, combined with Trooper Gerken’s earlier observations, gave him probable cause to believe that defendants were transporting drugs. Only when the police reached this point did they arrest the defendants and place handcuffs on them. Trooper Gerken then obtained a search warrant; the car was searched; and the police found a large quantity of heroin. For a factually similar case in which the Supreme Court of Pennsylvania found that police had reasonable suspicion (and eventually probable cause) to suspect drug activity, see Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185 (2004).

The police acted in accord with the law in detaining and then arresting defendants. They acted in accord with the law in seizing the heroin. The Commonwealth may use the seized heroin in the trial of the defendants. The arrest of the defendants and the seizure of the drugs did not create an initial illegality which would taint any evidence which followed, such as statements.

Habeas Corpus

In deciding a habeas corpus issue, the court must determine whether the Commonwealth has established a prima facie case against an accused of the crimes with which he is charged. Commonwealth v. Packard, 767 A.2d 1068, 1070 (Pa. Super. 2001). A prima facie case exists when the Commonwealth produces evidence of each of the crime’s material elements sufficient to establish probable cause warranting a belief that the accused committed the crime. Commonwealth v. Weigle, 997 A.2d 306, 311 (Pa. 2010) (citation omitted). “The evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to be decided by the jury.” Id. (citation omitted).

Each defendant is charged with possession of a controlled substance, possession with intent to deliver a controlled substance and conspiracy to deliver a controlled substance. The finder-of-fact may infer a defendant’s intent to deliver from the facts and circumstances of the case considered as a whole. Commonwealth v. Ratsamy, 934 A.2d 1233, 1237 (Pa. 2007); Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa. Super. 2003). “Relevant factors in establishing intent [to deliver] include the quantity of drugs possessed, the manner of packaging, the absence of paraphernalia for drug use, the behavior of the defendant, the presence of large amounts of cash, and expert opinion testimony.” Commonwealth v. Heater, 899 A.2d 1126, 1131 (Pa. Super. 2006) (citations omitted).

In this case, the drugs were hidden in the Altima in which the defendants were traveling. There were no drugs found on the individuals. When drugs are not located on a defendant’s person, the Commonwealth must prove constructive possession. Commonwealth v. Gray, 469 A.2d 169, 171 (Pa. Super. 1983). Constructive possession requires a demonstration that the accused has the “power to control the contraband and the intent to exercise that power.” Commonwealth v. Jones, 378 A.2d 914, 915 (Pa. Super. 1977). A defendant’s mere presence in a group of individuals, all of whom had equal access to contraband, is not alone sufficient to establish constructive possession but it is relevant on the issue of possession. Commonwealth v. Juliano, 490 A.2d 891, 893-94 (Pa. Super. 1985) (citations omitted). “Location of the contraband in an area usually accessible only to the defendant may lead to an inference that he placed it there or knew of his presence if others did so.” Id. at 894 (citations omitted).

The heroin was concealed in various areas of the car in which all defendants were occupants. A bundle of heroin was hidden in the air filter compartment under the hood of the Altima. The actual air filter of the vehicle was inside the passenger compartment of the vehicle on the back seat console. This removed air filter was right between two of the defendants and it was within reach of all four as they admittedly traveled a long distance in the car. The heroin under the hood was secured with duct tape as was the heroin in the trunk. This is circumstantial evidence that all defendants were aware of the drugs hidden in the air filter compartment and in the trunk due to the use of duct tape and that they constructively possessed the drugs. It was explained in the expert testimony of Trooper Matthew Tretter of the Pennsylvania State Police that the amount of heroin contained in the Altima had an estimated street value of up to $600,000. No drug use paraphernalia was found in the vehicle. These circumstances suggest that defendants possessed the drugs with the intent to deliver them to third parties. Such a quantity of drugs, tied sufficiently to each defendant as it was here, does not need to be accompanied by expert testimony for a lay person to reasonably conclude that it was held for delivery purposes. For all of these reasons, the Commonwealth has met its burden of producing prima facie evidence to support the drug charges against all defendants.

Severance

Severance motions are governed by Pa.R.Crim.P. 583, which reads: “[t]he court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.” Furthermore,

[wjhen conspiracy is charged, a joint trial generally is advisable. In ruling upon a severance request, the trial court should consider the likelihood of antagonistic defenses. A claim of mere hostility between defendants, or that one defendant may tiy to exonerate himself at the expense of the other, however, is an insufficient basis upon which to grant a motion to sever. Indeed, this court has noted that “’the fact that defendants have conflicting versions of what took place, or the extents to which they participated in it, is a reason for rather than against a joint trial because the truth may be more easily determined if all are tried together.’” (Citations omitted). Instead, severance should be granted only where the defenses are so antagonistic that they are irreconcilable-i.e., the jury essentially would be forced to disbelieve the testimony on behalf of one defendant in order to believe the defense of his co-defendant.

Commonwealth v. Brown, 592 Pa. 376, 401, 925 A.2d 147, 161-62 (2007) (internal citations omitted).

Because the Commonwealth charges that a conspiracy to deliver illegal drugs existed among the four defendants, a joint trial is proper where no evidence was presented that a joint trial would be prejudicial to Melo-Degonzalez. While the possibility exists that defendants will attempt to exonerate themselves at the expense of one another at trial, this factor alone does not constitute grounds for severance. Also, there was no showing by Melo-Degonzalez that her possible defenses will be so antagonistic to the others that the jury would be forced to disbelieve the testimony of one defendant in order to believe the testimony of another. For these reasons, the severance motion must be denied.


author: WILLIAMSON, J.,

text:
    Bruno v. Stroud Mall Associates

      C.P. of Monroe County,
    No. 11936 CIVIL 2009

      John D. Lalley, for plaintiff.

      Alicia M. Smith, for defendants.
    December 19, 2013 —
   WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed by Stroud Mall Associates, Stroud Mall, LLC, CBL Associates and ERMC (hereafter “defendants”) on October 8, 2013. On November 5, 2013, Jocelyne Bruno (hereafter “plaintiff’) filed a response to defendants’ motion for summary judgment. In the motion, defendants argue that summary judgment should be granted because there has been no breach of duty on the part of defendants. Defendants state that no facts have been plead by plaintiff that call into question any duty owed to the plaintiff for failure to maintain its premises. More specifically, defendants argue that plaintiffs own admissions establish that plaintiff knowingly stepped directly onto snow in a landscaping area of the premises where there is no pedestrian access. Defendants contend Pennsylvania case law clearly establishes that they have no responsibility to remove snow or ice from a non-pedestrian area or walkway. Defendants state that they owed no duty to plaintiff to remove snow from the non-pedestrian area where plaintiff allegedly fell.

Following initial pleadings, discovery, and depositions, defendants filed the instant motion for summary judgment and abrief in support ofthe motion for summary judgment. Plaintiff then filed a response to defendants’ motion for summary judgment and a brief in support of plaintiff’s response to defendants’ motion for summary judgment. Oral arguments on the matter were held on December 2, 2013.

DISCUSSION

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

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

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

In this case, defendants argue that there is no genuine issue of material fact with regard to the duty owed to plaintiff. Defendants assert they owed no duty to plaintiff to clear a non-pedestrian area from snow and ice because it was not foreseeable that plaintiff would walk in that area to reach the defendants’ premises. Specifically, defendants argue that plaintiff knowingly and admittedly stepped directly onto snow in a landscaping area which had no pedestrian access. Defendants further state that plaintiff failed to observe an open and obvious condition, and that plaintiff failed to use an alternate safe means of access to the Burger King located on defendants’ premises. There is also a bank, additional restaurant and an indoor shopping mall located on defendants’ premises.

Plaintiff argues there are genuine issues of material fact, and that summary judgment is not proper at this time. In support of this position, plaintiff states that a trier of fact should make a determination as to whether or not plaintiff walked through an area where the defendants knew or should have known that pedestrians would access the Burger King parking lot on defendant’s premises. Plaintiff argues that since the defendants provided no sidewalks in that area, plaintiffs only other choice was to walk up a snow covered, narrow, and very busy access roadway. Further, plaintiff states that defendants provided no alternate routes when they plowed in the only safe access area to the Burger King. Moreover, plaintiff claims that defendants knew or should have reasonably known that the area where plaintiff traversed was hard packed and dirt covered, evidencing common and recent pedestrian use.

In determining the standard of care owed by a possessor of land to those who enter upon the premises, both parties cite to the Pennsylvania Supreme Court case of Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983). In that case, the court made a determination of the duty owed by a possessor to an invitee, which is to protect invitees from foreseeable harm. Id. at 123. The court went on to adopt the Restatement (Second) of Torts §§ 343 & 343A, which states that the possessor is subject to liability only if he,

“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.” Id.

The court then went on to quote § 343A of the Restatement (Second) of Torts, stating that a “possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Id. (quoting Restatement, supra, § 343A).

In further explaining the duty owed by a possessor of land to an invitee, the court went on to explain the terms “known” and “obvious” as used in the Second Restatement. According to the court, “a danger is deemed to be ‘obvious’ when ‘both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence and judgment.’” Id. (quoting Restatement, supra, § 343A cmt. b). The court further explained that “for a danger to be ‘known’, it must ‘not only be known to exist...but also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.” Id. at 124 (quoting Restatement, supra, § 343A cmt. b.)

The court in Carrender also made a determination concerning the assumption of risk doctrine in the rule explained above, that a possessor of land is not liable to his invitees for obvious dangers. In doing so, the court stated,

“When an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpart to the possessor’s lack of duty to protect the invitee from those risks. By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept the risk and to undertake to look out for himself. It is precisely because the invitee assumes the risk of injury from obvious and avoidable dangers that the possessor owes the invitee no duty to take measures to alleviate those dangers. Thus, to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers. See Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978) (operator of baseball park owes no duty to guard against common, frequent, and expected risks of baseball; duty extends only to foreseeable risks not inherent in baseball activity).”

Id. at 125 (internal citations omitted). Taking the above into consideration, and applying the arguments set forth by both parties, this court believes there to be genuine issues of material fact, and therefore, must deny defendants’ motion for summary judgment.

Denying defendants’ motion for summary judgment at this time is proper for several reasons. First, plaintiff raises the issue of whether other pedestrians were using the same path which plaintiff took when she slipped and fell. This court believes there to be a genuine issue of material fact about whether defendants knew or should have known that the area where plaintiff traversed through the snow pile was hard and dirty, evidencing pedestrian traffic through that area. Plaintiff has asserted this issue in her response and affidavit attached to plaintiffs response to defendants’ motion for summary judgment, and in plaintiffs brief in support. Being a well-pled fact raised by plaintiff, this court accepts it as true since it is uncontroverted at this time by defendants. See Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971).

This court also believes there to be a logical inference raised by the assertion that defendants knew or should have known other pedestrians were using the area where plaintiff fell. That inference is that plaintiff would have a duty to plaintiff if defendants had or reasonably should have had knowledge of the use of the passageway by other pedestrians. We recognize the likely lack of any duty on the part of the defendants to protect a plaintiff against the danger of walking through snow piles. See generally Carrender, 469 A.2d at 152. However, plaintiff stated in her deposition there was no way to go straight over the snow piles to get to the entrance of the Burger King, and that she took a path which “looked clean” and plaintiff “could see the ground and tried little by little to go down.” (Pl.’s dep. 21: 1-14, June 13, 2013). Plaintiff took a knowing and obvious risk in traversing over the snow piles. However, by accepting as true the fact that the pathway taken by plaintiff seemed to have been used by other pedestrians, there is an issue of defendants’ awareness of such use. If defendants did know, or reasonably should have known of the use of this passageway by pedestrians in general, it could be a foreseeable risk not to provide some alternate means of egress, or take steps to ensure the passageway was free and clear from snow. The issue of the pathway through the snow bank, and defendants’ knowledge or foreseeable knowledge of this risk, is a question of fact for the jury.

Finally, this court believes there to be a genuine issue as to the material fact of whether there was an alternate safe route for plaintiff to traverse to Burger King. In their motion for summary judgment, defendants argue that plaintiff walked along Route 611 and entered into the area of Wayne Bank and attempted to cross over from the Wayne Bank parking area into the Burger King parking area from the two lane vehicle access road that leaves Route 611 to enter the mall complex. (Defs.’ mot. for summ. J. ¶ 5). Defendants argue that instead of walking along Route 611 and around the Burger King to a pedestrian entrance, the plaintiff walked across the two lane roadway from Wayne Bank to the Burger King, where there were no sidewalks. {Id. ¶ 10). By doing so, defendants argue plaintiff did not avail herself of the alternative safe route of walking around the Burger King on Route 611 to the pedestrian entrance, thereby relieving them of any duty owed to plaintiff.

Plaintiff argues that no such route existed as an available option on that day. Plaintiff asserts that the pedestrian entrance way defendants describe were actually vehicular entrance ways which, if plaintiff would have had to access them, she would still have to walk against the oncoming traffic on a busy access road with no sidewalks. (Pl.’s br. in supp. of resp. to mot. for summ. J. p. 4). Further, plaintiff argues that her choice to access the Burger King parking lot through the snow piles where it appeared as though pedestrian traffic had traveled was the only available safe alternative route to traverse. {Id.) This is a factual issue for a jury. Moreover, plaintiff argues that defendants cannot claim they owe no duty to plaintiff, an invitee, after inviting her onto the property and then not providing, what plaintiff believes, to be any reasonably safe access to the property.

Taking both defendants’ and plaintiffs arguments into consideration, this court believes there to be a genuine issue as to the material fact of whether defendants provided any reasonably safe alternative means to access the premises. This issue, basically whether the short cut taken by plaintiff was avoidable, is in question. Defendants have argued that plaintiff could have walked around the Burger King on Route 611 and entered the premises through the entrances on that side of the parking lot. Plaintiff has argued no available safer means to access the premises were provided. Furthermore, plaintiff believes the route suggested by defendants would have required plaintiff to walk against oncoming traffic on a busy roadway already congested with snow piles on either side.

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

ORDER

And now, this 19th day of December, 2013, upon consideration of defendants’ motion for summary judgment, the same is denied.


author: MARK, J.,

text:
    Singh v. Pocono Medical Center, Inc.

      C.P. of Monroe County,
    No. 5770 CV 2011

      Sean P McDonough, for plaintiff.

      Larry B. Selkowitz and Bruce Coyer, for defendants.
    December 30, 2013 —
   MARK, J.,

This case is before the court on defendants’ motion for summary judgment. For the reasons that follow, we will grant the motion in part and deny the motion in part.

Factual and Procedural Background

The facts and procedural history of this case are detailed at length in our opinion and order dated December 17, 2012 (“prior opinion”), which addressed defendant’s preliminary objections. In that order we dismissed all but one of the counts in plaintiffs second amended complaint, leaving only count IV, a claim for breach of contract. Subsequently, defendants filed an answer. Thereafter, on June 17, 2013, defendant filed the motion currently pending before the court along with a brief in support. Plaintiff responded in kind, and having heard argument on the matter on September 3, 2013, and having requested and received supplemental briefs on one of the issues raised in the motion, we are now ready to rule on defendants’ motion for summary judgment.

Discussion

Under the Pennsylvania Rules of Civil Procedure, summary judgment is appropriate where:

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

Pa.R.C.P. 1035.2. Summary judgment may be granted only in cases where the right is free and clear from doubt. Musser v. Vilsmeier Auction Co. Inc., 562 A.2d 279, 280 (Pa. 1989). Typically, the moving party has the burden of proving the nonexistence of any genuine issue of material fact. Thompson, 412 A.2d at 469. The record must be viewed in light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970).

In response to a motion for summary judgment, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). In ruling on a motion for summary judgment, the court may consider the pleadings, depositions, answers to interrogatories, admissions, and supporting affidavits. Pa.R.C.P. 1035.1.

In their brief, defendants pose four questions for our consideration. First, defendants ask whether summary judgment should be granted as to defendant Jonathan Goldner, D.O. (“Dr. Goldner”), who was not a party to a contract with plaintiff. Second, defendants ask whether the breach of contract claim should be dismissed because plaintiff’s claim for damages is barred by the Health Care Quality Improvement Act, 42 U.S.C. § 11101 etseq., and the Pennsylvania Peer Review Protection Act, 63 P.S. § 425.1 et seq. Third, defendants ask whether summary judgment should be granted as to all defendants because there was no breach of contract. Finally, defendants ask whether summary judgment should be granted as to all defendants under the immunity provisions of defendant Pocono Medical Center’s Staff Bylaws, which form the basis of one of three contracts plaintiff alleged was breached.

At argument, plaintiff conceded that Dr. Goldner was not a party to a contract with plaintiff and was willing to dismiss all remaining claims against Dr. Goldner. Accordingly, we will grant defendants’ motion for summary judgment as to Dr. Goldner.

Defendants’ remaining arguments concern the actual contracts plaintiff entered into with defendants Pocono Medical Center and Pocono Health Systems (“hospital”). The parties entered into three contracts. In the contract governed by the Staff Bylaws, plaintiff contracted in September of 2006 with hospital to undertake various medical staff services in exchange for various medical staff privileges (“Staff Bylaws Contract”). Also in September of 2006, plaintiff entered into an agreement with hospital to become the medical director of hospital’s catheterization lab (“Cath Lab Contract”). The parties entered into a third contract under which plaintiff would serve as an on-call physician in the emergency room (“ER Contract”).

Plaintiff conceded at argument that the HCQIA applies to the Cath Lab Contract and to the ER Contract, but asserted that it did apply to the Staff Bylaws Contract. Hospital offered a concession of its own at argument, admitting that the Staff Bylaws Contract was, at least at one point, an enforceable contract between plaintiff and hospital. However, hospital argued that, because plaintiff was no longer a member of the staff when the alleged breach occurred, neither party was bound by its terms. In the alternative, hospital argued, even if the Staff Bylaws Contract was still in effect at the time of the alleged breach, any claims for damages are barred by the immunity provisions of the contract.

Therefore, the only issues before the court are: (1) whether the Staff Bylaws Contract between plaintiff and defendants was in effect at the time of the alleged breach; and (2) if so, whether plaintiff’s claim for damages is barred by the immunity provisions of the Staff Bylaws.

As noted, no dispute exists as to the existence, at least at some point in time, of the Staff Bylaws Contract. On September 19, 2006, plaintiff entered into the Staff Bylaws Contract with hospital, which, generally speaking, required plaintiff to undertake various medical staff services in return for numerous medical staff privileges, including membership on Hospital’s Peer Review Committee, as outlined in the Staff Bylaws, a document consisting of sixty-four pages. This contract remained in place until September 12, 2008, when plaintiff, as he was free to do, resigned his staff privileges.

In his second amended complaint, plaintiff alleges that hospital violated the Staff Bylaws Contract in a number of different ways. Specifically, plaintiff avers that, beginning in March of 2007 — six months after the parties entered into the Staff Bylaws Contract and eighteen months before plaintiff terminated the contract upon his resignation of his staff privileges — hospital prevented plaintiff from participating in peer review activities of a Dr. John Doe and advocating his concerns regarding Dr. John Doe’s practices or hospital’s handling of a complaint regarding Dr. John Doe’s conduct.

It is well-settled that the staff bylaws of a hospital “constitute the terms of a legally binding contract between the hospital and the doctors on its staff.” Miller v. Indiana Hosp., 419 A.2d 1191, 1193 (Pa. Super. 1980) (citing Berberian v. Lancaster Osteopathic Hosp. Assoc., 149 A.2d 456 (Pa. 1959)). “The hospital will, moreover, be held to a standard of strict compliance with its bylaws.” Id. The parties do not dispute that they entered into the Staff Bylaws Contract on September 19, 2006. Despite Hospital’s contention otherwise at argument, there is nothing in the record that supports the notion that the parties were not still bound to the terms of the agreement from March of 2007, the approximate time when plaintiff alleges the hospital’s breach first occurred, until September 12, 2008, when plaintiff resigned his staff privileges. It follows, then, that the Staff Bylaws Contract was in effect at the time of the alleged breach, and the parties were subject to its provisions.

This conclusion leads inexorably to the second question before us, whether the immunity provisions of the Staff Bylaws Contract preclude plaintiff’s claim for damages. The Staff Bylaws Contract contains an express immunity provision entitled article XVI — release and immunity from liability. The release is an “express condition!] to any practitioner’s application for Medical Staff membership or the exercise of clinical privileges at the hospital.... and every practitioner accepts the following conditions for the duration of the practitioner’s association with the hospital.” (Pl.’s Br. Ex. A.) In pertinent part, the release reads:

1. To the fullest extent permitted by law, the applicant or member extends absolute immunity and release from civil liability and damages to the medical staff, the board of directors, their authorized representatives and any third party arising from any acts, communications, reports, recommendations or disclosures involving the applicant or member, concerning activities undertaken pursuant to these Bylaws and Rules and Regulations including, but not limited to, the following:
a. Application for appointment and for clinical privileges;
b. Periodic reappraisals for reappointment and for clinical privileges;
c. Corrective action, including summary suspension;
d. Hearing and appellate reviews;
e. Medical audit;
f. Utilization review;
g. Risk management evaluation; and
h. Other hospital, departmental or committee activities related to patient, professional conduct and peer review.

(Pl.’s Br. Ex. A.)

As the release makes clear, by agreeing to the Staff Bylaws, plaintiff released from civil liability “the medical staff, the board of directors, their authorized representatives and any third party.” What is not as clear, at least on the face of the release, is who or what entities are encapsulated by the terms “medical staff,” “board of directors,” and “authorized representatives and any third party.” Helpfully, the contract contains a definitions section, which defines both “medical staff’ and “board of directors.” “medical staff’ is defined as “[t]he medical staff of Pocono Medical Center including all medical staff categories described and defined in the Bylaws.” “board of directors” is defined simply as the “[t]he board of directors of Pocono Medical Center.” (Pl.’s Br. Ex. A.) While the definition of board of directors references Pocono Medical Center, one of the two hospital defendants, neither of these definitions uses the word “hospital” or encompasses Pocono Medical Center or Pocono Health System, Inc. In fact, “hospital” is separately defined as “[t]he Pocono Medical Center.” (Pl.’s Br. Ex. A.)

Generally speaking, liability releases are not favored by the law. Zimmer v. Mitchell & Ness, 385 A.2d 437, 439 (Pa. Super. 1978). They will, however, be found valid if: (1) the clause does not contravene public policy; (2) the contract is between persons relating entirely to their own private affairs; and (3) each party is a free bargaining agent to the agreement so that the contract is not one of adhesion. Topp Copy Products, Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993); Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010). “The courts of Pennsylvania have traditionally determined the effect of a release using the ordinary meaning of its language and interpreted the release as covering only such matters as can fairly be said to have been within the contemplation of the parties when the release was given.” Fortney v. Callenberger, 801 A.2d 594, 597 (Pa. Super. 2002). When interpreting such language, four guiding standards must be considered: (1) because exculpatory language is not favored by the law, the contract language must be strictly construed; (2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; (3) ambiguous language in the contract must be construed against the party seeking immunity from liability; and (4) the burden of establishing immunity is upon the party invoking protection under the clause. Topp Copy, 626 A.2d at 99.

With these principles in mind, it is difficult to conceive that the release contained in the Staff Bylaws Contract absolves hospital of any and all liability for a breach of the contract’s terms. Strictly construed, the release simply cannot be read to absolve hospital of liability for a breach of the Staff Bylaws Contract. Read plainly, the quoted language from the release itself indemnifies only “the medical staff, the board of directors, their authorized representatives and any third party arising from any acts, communications, reports, recommendations or disclosures involving the applicant or member, concerning activities undertaken pursuant to the” Staff Bylaws Contract. Nowhere in the release does the word “hospital,” as that term is expressly contemplated in the definition section, appear, and there is nary a mention of either of the hospital defendants by name. The term “hospital,” as defined by the contract, is used in what might be considered the preamble of the release, but only to indicate that agreeing to the release is an express condition of the “exercise of clinical privileges at the hospital.” Nothing in this preamble, and certainly nothing in the release provision itself, indicates that hospital is immune, only the medical staff, the board of directors, their authorized representatives and any third party.

Additionally, because hospital seeks protection under this provision, it carries the burden of establishing immunity. It has, however, failed to do so. Instead, in support of its position that it is protected by this provision, hospital simply quotes the immunity provision and states in a conclusory manner that this provision applies to hospital and it must be enforced just as any of the other provisions might be enforced. (Def.’s Br. at 17-18.) Despite having the opportunity to do so within its supplemental brief, hospital does not parse the language of the provision or offer any other analysis as to the applicability of the provision. Hospital merely states in blanket fashion that the immunity provision shields hospital from all claims. This is particularly troubling in light of our prior opinion, in which we admonished both parties for failing to offer anything more than conclusory arguments in regard to the applicability of the HCQIAto many of plaintiff’s original claims. Regardless, hospital has failed to carry its burden of demonstrating that the immunity provision indemnifies it from liability for claims arising under the Staff Bylaws Contract. This, coupled with the fact that the provision itself, strictly construed, does not grant immunity to hospital, requires us to deny hospital’s motion as to plaintiff’s claim for breach of the Staff Bylaws Contract.

It would appear, then, that the sole question remaining in this case is whether Hospital breached the Staff Bylaws Contract it had entered into with plaintiff. That, however, is a question of fact better left for trial.

Accordingly, we enter the following:

ORDER

And now, this 30th day of December, 2013, it is ordered that defendants’ motion for summary judgment is granted in part and denied in part, as follows:

1. Summary judgment is entered in favor of defendant Jonathan Goldner, D.O. and against plaintiff Karandeep Singh, M.D., and Dr. Goldner is dismissed as a party.
2. Plaintiff’s claims for breach of the Cath Lab Contract and the ER Contract are dismissed.
3, Defendants’ motion is denied with respect to plaintiff’s claim for breach of the Staff Bylaws Contract. This case will proceed solely on this claim.

      . After we issued the prior opinion, plaintiff filed a petition seeking amendment of our order to include language that would permit him to seek an interlocutory appeal. On January 21, 2013, we denied plaintiff’s petition. Plaintiff did not further pursue an interlocutory appeal.


text:
    Haubrich v. Staniszewski

      C.P. of Monroe County,
    No. 9686 CIVIL 2012

      Edwin A. Abrahamsen, for plaintiff.

      David E. Heisler, for defendant.
    January 9, 2014 —
   WILLIAMSON, J.,

This matter comes before us on a Motion for summary judgment filed by Diane Staniszewski (hereafter “defendant”) on November 12, 2013. On December 6, 2013, Jillian Haubrich (hereafter “plaintiff’) filed a response to defendant’s motion for summary judgment, and a brief in opposition to defendant’s motion for summary judgment. In the motion for summary judgment, defendant argues that plaintiff has failed to cross the limited tort threshold of establishing impairment, or serious impairment of body function resulting from a motor vehicle accident. As such, defendant asserts that summary judgment should be granted because plaintiff has failed to show that she suffered a “serious injury” as required by 75 Pa. C.S.A. § 1705(d). Defendant requests this court enter summary judgment with respect to the limited tort threshold, and to hold that plaintiff is precluded from recovery of noneconomic damages in this matter pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law.

Plaintiff initiated this action by filing the complaint on November 19, 2012. In the complaint, plaintiff asserts a negligence action against defendant as the result of a motor vehicle accident which occurred on or about April 13, 2011. According to the complaint, the accident took place on McConnell Street in Stroudsburg, Monroe County, Pennsylvania. At the time of the accident plaintiff was thirty-seven (37) weeks and two (2) days pregnant. As a result of the accident plaintiff underwent a Cesarean section (C-section) at Pocono Medical Center. The C-section following the accident was approximately twelve (12) days earlier than originally planned, as plaintiff was previously scheduled to undergo a C-section on April 25, 2011. The complaint further alleges that plaintiff suffered injuries to her neck and lower back from the accident, and incurred monetary expenses from medical attention.

Defendant filed an answer and new matter on December 24, 2012. Plaintiff filed a reply to new matter on Januaiy 17, 2013. Following initial discovery, depositions and pleadings, defendant filed the instant motion for summary judgment on November 12, 2013. Plaintiff filed their response and brief in opposition on December 6, 2013. Oral arguments on the matter were held on Januaiy 6, 2014. After a review of the parties’ Briefs and in consideration of representations made at oral arguments, we are ready to dispose of the motion.

DISCUSSION

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

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

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

In this case, defendant argues there are no genuine issues of material fact with regard to the injuries sustained by plaintiff, in that they do not meet the ‘serious injury’ requirement in order for plaintiff to pass the limited tort threshold to recover noneconomic losses resulting from the accident. To support this argument defendant asserts that the selection by plaintiff of the limited tort option on her auto insurance policy with Esurance Insurance Services, Inc. makes § 1705(d)(1), Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL), applicable to this case. To advance her argument, defendant cites to 75 Pa. C.S.A. § 1702, which provides the statutoiy definition of a ‘serious injury.’ In doing so defendant maintains that the injuries plaintiff sustained as a result of the accident on April 13,2011 do not rise to the level of a ‘serious injury.’ This is because, as defendant asserts, plaintiff has failed to provide evidence of any impairment of a body function, let alone a serious impairment of a body function that would be necessary to proceed under § 1705(d) for noneconomic losses.

In opposition to defendant’s position plaintiff argues that there is a genuine issue of material fact which should preclude the entry of summary judgment for the defendant. Plaintiff asserts that a genuine issue of fact exists as to whether the injuries sustained constitute a serious impairment of a bodily function. In support of this position plaintiff states that, because of the accident, an emergency C-section was performed on April 13, 2011. Being twelve (12) days sooner than originally planned, plaintiff argues that the emergency C-section impaired her ability to carry her unborn child to the scheduled delivery date. Plaintiff argues this was an impairment that constitutes a serious impairment of a bodily function and is therefore considered a serious injury envisioned by § 1705(d). Plaintiff avers that she should be able to recover noneconomic damages as a result of the accident.

Taking into account the pleadings, depositions, exhibits and admissions of both parties, this court believes there to be a genuine issue of a material fact in this case, and therefore agrees with the position asserted by plaintiff. We make this finding based upon Cadena v. Latch, 78 A.3d 636 (Pa. Super. 2013). In that case, the Pennsylvania Superior Court remanded a case to the trial court which initially entered summary judgment to the defendant on the issue of whether a serious injury existed from an auto accident, thereby precluding the plaintiff from recovering noneconomic damages.

The court in Cadena provided a framework for the analysis of whether a person has suffered a ‘serious injury’ envisioned by § 1705(d) in order to overcome the limited tort threshold and recover noneconomic damages. According to the court,

The Motor Vehicle Code defines “serious injury” as “[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” Id. § 1702. Our Supreme Court has held that in determining whether a motorist has suffered a serious injury, “the threshold determination was not to be made routinely by a trial court judge...but rather was to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained.” Washington v. Baxter, 553 Pa. 434, 719 A.2d 733, 740 (1998). In conducting this inquiry, “[sjeveral factors must be considered to determine if the claimed injury is ‘serious’: ‘[1] the extent of the impairment, [2] the length of time the impairment lasted, [3] the treatment required to correct the impairment, and [4] any other relevant factors.’” Graham v. Campo, 990 A.2d 9, 16 (Pa. Super. 2010), appeal denied, 609 Pa. 703, 16 A.3d 504 (2011). Our Supreme Court has cautioned that “[t]he focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function.” Washington, supra. We remain cognizant of the principle that “[a]n impairment need not be permanent to be serious [ ]” under section 1705(d). Robinson v. Upole, 750 A.2d 339, 342 (Pa. Super. 2000)(citation omitted).

Cadena, 78 A.3d at 640. In applying the above principles of law to the instant cause of action, this court believes there to be a genuine issue of material fact as to whether the ability to carry an unborn child to a scheduled delivery date constitutes a serious impairment of a body function.

As discussed above, defendant argues that plaintiff did not suffer an injury which meets the requirements under § 1705(d) to cross the limited tort threshold. Essentially, defendant asserts that having a C-section twelve (12) days prior to an already scheduled C-section is not a ‘serious injury’ because there is no serious impairment of a body function. Contrary to this argument, plaintiff contends that impairing her ability to carry her unborn child to the scheduled delivery date is, in fact, a ‘serious injury’ because of an impairment of a serious body function. This creates a genuine issue of material fact. We cannot say that reasonable minds would not differ in determining if this is a serious injury or not. Considering that a pregnancy and an emergency C-section are not matters to be taken lightly, a jury could find this was a serious injury. And as the Supreme Court found, in determining whether a plaintiff has suffered a ‘serious injury,’ “the threshold determination [is] not to be made routinely by a trial court judge...but rather [is] to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury [has] been sustained.” Cadena, 78 A.3d at 640 (quoting Washington, 719 A.2d at 740). As reasonable minds could differ on the issue of whether a serious injury has been sustained, this matter is best left to a jury to make a factual determination.

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

ORDER

And now, this 9th day of January, 2014, upon consideration of defendant’s motion for summary judgment, the same is denied.

      . 75 Pa. C.S.A. § 1705(d) Limited tort alternative. — Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss, except that:
      (1) An individual otherwise bound by the limited tort election who sustains damages in a motor vehicle accident as the consequence of the fault of another person may recover damages as if the individual damaged had elected the full tort alternative whenever the person at fault:
      (i) is convicted or accepts Accelerated Rehabilitative Disposition (ARD) for driving under the influence of alcohol or a controlled substance in that accident;
      (ii) is operating a motor vehicle registered in another state;
      (iii) intends to injure himself or another person, provided that an individual does not intentionally injure himself or another person merely because his act or failure to act is intentional or done with his realization that it creates a grave risk of causing injury or the act or omission causing the injury is for the purpose of averting bodily harm to himself or another person; or
      (iv) has not maintained financial responsibility as required by this chapter, provided that nothing in this paragraph shall affect the limitation of section 1731(d)(2) (relating to availability, scope and amount of coverage).

      . 75 Pa. C.S.A. § 1702 “Serious Injury.” — A personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.