author: GLAZER, J.,

text:
    Sigman v. Bochetto & Lentz, P.C.

      Brian S. Chacker, for plaintiff.

      John A. O’Connell, Jeffrey W Ogren, George Bochetto and David P Heim, for defendants.
    June 12, 2015
   GLAZER, J.,

ORDER

AND NOW, this 12 day of June 2015, upon consideration of defendants’ Emergency Motion to Stay Proceedings (Control Number 15052372) and Emergency Motion to Set Aside All Garnishments, All Execution Process and to Mark Judgment Satisfied (Control Number 15052569), plaintiff’s responses in opposition, and after oral argument and upon consideration of plaintiff’s Motion for Judgment on the Pleadings (Control Number 15050061), defendants’ response in opposition and after oral argument, it hereby is ORDERED as follows:

1. The Motion to Stay Proceedings and Miscellaneous Motion are Moot.
2. The Motion for Judgment on the Pleadings is Granted and defendants’ counterclaim is dismissed.

Presently pending before the court is Sigman’s Motion for Judgment on the Pleadings. On June 27, 2011, Sigman initiated the instant lawsuit by complaint. On July 26,2011, an amended complaint was filed alleging claims for breach of contract, unjust enrichment and accounting for B&L’s failure to make payments owed to Sigman pursuant to an employment termination agreement. The employment termination agreement confirmed certain agreements related to referral fees for work generated by Sigman while employed by B&L and for certain post employment matters. The employment termination agreement contained an arbitration provision which provided as follows, “In the event the parties have any dispute or disagreement, they shall submit same to Harris Bock for final and binding arbitration.” B&L filed preliminary objections to the amended complaint seeking to transfer the matter to arbitration. On August 22, 2011, the court sustained B&L’s preliminary objections and remanded only those claims filed against B&L to binding arbitration. The remainder of the case, the claims against the individual defendants, George Bochetto and Gavin Lentz, was stayed and all other preliminary objections asserted against Bochetto and Lentz individually, were held under advisement until the final and binding mediation was completed.

During the arbitration proceeding, B&L submitted a counterclaim to the arbitrator. The counterclaim included a claim of indemnity for attorney fees related to investigation and reporting Sigman’s conduct to the Disciplinary Board. B&L requested the reimbursement of $132,259.70 which represented the attorneys’ fees expended in the disciplinary matter (“disciplinary attorneys’ fees”). On June 19,2013, after conducting discovery and hearings, the arbitrator entered an interlocutory order of mixed findings of fact and conclusions of law. In particular to the disciplinary attorneys’ fees, the arbitrator found the following:

Disciplinary Actions

75. Defendant is seeking to recover $132,259.70 for in house attorney’s fees ($69,590.00), as well as for outside counsel costs ($62,669.70).

76. The arbitrator finds that the fees with respect to the disciplinary matter are outside the scope of the Termination Agreement and are denied.

The arbitrator ultimately entered an award in favor of Sigman and against B&L in the amount of $123,942.93. On July 2, 2013, B&L filed a petition to vacate the arbitrator’s award with this court relying upon public policy. On August 6, 2013, the court denied defendants’ petition to vacate and B&L appealed. On June 19, 2014, the Superior Court affirmed the court’s order denying the petition to vacate. Thereafter, B&L filed a petition for re-hearing en banc and petition for allowance of appeal which were also denied.

After the arbitrator issued his final order, B&L filed a motion in this court to lift the stay in this action in order to proceed with the remaining claims. On August 5,2013, the court executed the proposed order submitted by B&L and granted the motion to lift the stay. On July 19, 2013, B&L filed an answer with new matter and counterclaim alleging contractual indemnity and equitable indemnity for the disciplinary attorneys’ fees. Preliminary objections were filed by Sigman which were overruled. An appeal was filed to the Superior Court which was quashed. Now, Sigman filed a motion for judgment on the pleadings seeking to dismiss the counterclaim based on res judicata and collateral estoppel.

DISCUSSION

The motion for judgment on the pleadings presents two issues for this court’s consideration, whether B&L’s counterclaim in this action is barred by the doctrine of res judicata or collateral estoppel since the issues were fully litigated in the arbitration proceeding and in the alternative whether B&L’s counterclaim should be transferred to binding arbitration before Harris Bock, Esquire. B&L argues that the counterclaims are not barred by the doctrine of res judicata since this court has already ruled that the counterclaim, specifically the disciplinaiy attorneys’ fee, was outside the scope of the arbitration proceeding. Additionally, B&L argues that Sigman has waived his right to assert that the counterclaims are subject to arbitration. For the reasons discussed below, the court finds that B&L’s counterclaims are barred by the doctrine of res judicata.

Under the doctrine of res judicata, when an issue of fact or of law is actually litigated and determined by a valid final judgment, and determination of the issue was essential to judgment, the determination on that issue is conclusive in a subsequent action between the parties, whether on the same or a different claim. Barring said claims serves the twin purposes of protecting litigants from assuming the burden of re-litigating the same issue with the same party, and promoting judicial economy through preventing needless litigation. Application of the doctrine of res judicata as an absolute bar to a subsequent action requires that the two actions possess the following common elements: “(1) identity of the thing sued upon; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the capacity of the parties.” “[A]ll matters which might have been raised and decided in the former suit, as well as those which were actually raised therein, are res judicata in a subsequent proceeding between the same parties and their privies.” In determining whether res judicata should apply, a court may consider whether the factual allegations of both actions are the same, whether the same evidence is necessary to prove each action and whether both actions seek compensation for the same damages.

Applying the foregoing principles to the case at hand, it is clear that res judicata applies. The elements of identity of the parties and identity of the capacity of the parties are easily resolved. The party asserting the counterclaim and the party against whom the counterclaim was asserted are the same. B&L has asserted a counterclaim in this action as well as in the arbitration proceeding. Moreover, B&L asserted the counterclaim in this action and in the arbitration proceeding against Sigman. Hence, the element of identity of the parties is satisfied. Similarly, identity of capacity of the parties also exists. In the counterclaim asserted here as well as in the arbitration proceeding, B&L and Sigman are the respective plaintiff and defendant. Sigman is the former employee seeking payment of referral fees, while B&L is the employer required to pay the referral fee.

Further, review of the counterclaim filed in this action as well as the counterclaim submitted in the arbitration proceeding show that the elements for identity of the thing sued upon as well as the identity of the cause of action are also satisfied. The counterclaim submitted by B&L in the arbitration proceeding stated the following:

223. Once B&L unraveled the full scope of Sigman’s fraudulent and deceitful conduct as outlined above, it was compelled under the Rules of Professional Conduct to report Sigman’s unethical conduct to Disciplinary Counsel for the Pennsylvania and New Jersey Bars.
224. In doing so, B&L was required to prepare numerous writings to the Disciplinary Boards detailing Sigman’s unethical conduct, which included cross references to voluminous documents providing Sigman’s ethical violations.
225. B&L further had to meet and confer with Disciplinary Counsel on numerous occasions concerning Disciplinary Counsel’s investigation of Sigman’s ethical violations.
226. To date, B&L attorneys have already spent $61,944 worth of billable attorney time in connection with investigating and reporting Sigman’s ethical violations to disciplinary counsel.
227. B&L also had to engage special ethics counsel, James Schwartzman, Esquire, who provided consultation and advice in connection with B&L’s obligations under the Rules of Professional Conduct to report Sigman’s ethical violations.
228. Mr. Schwartzman also formally represented B&L in the Pennsylvania Disciplinary Action where Sigman attempted to serve the firm and several of its employees with oppressive subpoenas seeking voluminous documents, including Mr. Bochetto’s and Mr. Lentz’s personal income tax returns.
229. Mr. Schwartzman has also been retained to defend at least four frivolous disciplinary complaints filed by Sigman against George Bochetto in Pennsylvania, New York, the District of Columbia and New Jersey. (Although none of the jurisdictions have elected to proceed with charges based on Sigman’s frivolous ethical complaints, each required Mr. Bochetto to respond to Sigman’s allegations.)
230. To date, B&L has pad (sic) Mr. Swartzman’s firm a total of $52,376.81 in fees for Mr. Schwartzman’s services in connection with Sigman’s ethical violations and defending against Sigman’s frivolous ethical complaints against Mr. Bochetto.

B&L submitted twenty six (26) paragraphs in their proposed conclusions of law addressing the recovery of the disciplinary attorneys’ fee. Included within the conclusions of law are allegations specifically detailing the source for the disciplinary attorneys’ fee. Specifically, B&L restated its request for in-house (non-partner) attorneys’ fees of $69,590.00, ethics counsel legal fees in an amount of $62,669.70 and forensic computer services costs of $5,192.82. In total, B&L requested an award in an amount of $137,452.52. The arbitrator awarded B&L $5,192.82 for the claimed forensic computer services. Once the $5,192.82 is subtracted for the total requested, the remaining sum for attorneys’ fees related to the disciplinary actions was $132,259.70. The arbitrator specifically denied B&L’s request for $132,259.70, the sum related to the disciplinary attorneys’ fee. The arbitrator’s finding which is now final and binding provided as follows:

Disciplinary Actions
75. Defendant is seeking to recover $132,259.70 for in house attorney’s fees ($69,590.00), as well as for outside counsel costs ($62,669.70).
76. The arbitrator finds that the fees with respect to the disciplinary matter are outside the scope of the Termination Agreement and are denied.

Despite the clear language of the arbitrator’s finding that the disciplinary matter is outside the scope of the Termination Agreement, B&L argues that a “final valid judgment upon the merits” is lacking because the arbitrator found that the counterclaim was not within the scope of the arbitration. The court does not find the phrase “outside the scope of the Termination Agreement” synonymous with “beyond the scope of the arbitration.” This court was tasked with determining whether the dispute involved is within the scope of the arbitration provision and determined that any disputes concerning the termination agreement fall within the scope arbitration. As such, the issue of the disciplinary attorneys’ fee was submitted to the arbitrator and adjudicated by him.

Disappointed with the arbitrators’ finding and frustrated with its inability to vacate the award, B&L now attempts to litigate once again the same claim for attorney fees which was denied in the arbitration proceedings. B&L filed a counterclaim for contractual indemnification against Sigman which provided as follows:

83. Sigman’s agreement to indemnify and hold B&L harmless includes Sigman’s obligations to reimburse B&L for the costs and legal fees (totaling $132,259.70 at the present time) incurred in investigating, reporting and addressing all of Sigman’s misdeeds.
84. Sigman is in breach of his contractual obligations to indemnify and hold B&L harmless for $132,259.70, which arose directly from Sigman’s “past acts, conduct or practices.”
85. As a direct and proximate result of Sigman’s breach of his obligations to indemnify and hold B&L harmless, B&L has suffered substantial pecuniary harm, including, but not limited to $132,259.70.

Additionally, B&L filed a counterclaim for equitable indemnification seeking indemnification for the disciplinary attorneys’ fee. The counterclaim for equitable indemnification provides in part as follows:

88. Sigman grossly violated his fiduciary duty to B&L by committing serious ethical breaches, stealing B&L’s clients, lying to B&L concerning material matters, refusing to testify truthfully concerning his behavior, and attempting to destroy the evidence of this wrongdoings, as amply demonstrated in his acceptance of discipline. Ex A., passim}
89. Sigman was primarily responsible for the harm that accrued to B&L for his improper, illegal and unethical actions.
90. The harm that accrued to B&L from Sigman’s actions was at least $132,259.70, due to the necessary expenses of investigating, reporting, and addressing Sigman’s actions.
91. Sigman’s primary responsibility for the costs B&L incurred due to his improper, illegal, and unethical actions, see Exhibit A, requires Sigman to indemnify B&L for those expenses, fees and costs.

B&L’s counterclaim here is identical to the counterclaim submitted to the arbitrator in substance and amount claimed. In the Termination Agreement, the parties agreed to submit “any and all disputes” to binding common law arbitration pursuant to 42 Pa. C. S. § 7341 before the arbitrator. The arbitrator considered the submissions of B&L regarding the disciplinary attorneys’ fee and found that the request was outside the scope of the Termination Agreement and denied the request. The disciplinary attorneys’ fee was considered and rejected. B&L had a full and fair opportunity to litigate the claim for disciplinary attorneys’ fees in the arbitration proceeding. Disappointment with the outcome does not give leave to litigate once again that which has been fully resolved. Since, all the requirements of res judicata have been met, the counterclaim for the disciplinary attorneys’ fee is barred and the counterclaim is dismissed.

CONCLUSION

For the reasons discussed above, plaintiff’s Motion for Judgment on the Pleadings is granted and the counterclaim is dismissed.

      . On June 11, 2015, the attachment dissolved and the judgment was marked satisfied.

      . Employment Termination Agreement ¶ 9.

      . See this court’s order and opinion dated August 22, 2011 (As for the remaining defendants, Bochetto and Lentz, since they are not signatories to the termination agreement, a valid arbitration does not exist with Sigman. Consequently, the instant action shall be stayed and the remaining preliminary objections shall be held under advisement pending the completion of the final and binding arbitration). As of the writing of this opinion, Sigman filed a praecipe to dismiss the claims against Bochetto and Lentz individually.

      . B&L counterclaim submitted to Arbitrator Bock on December 2,2011.

      . Interlocutory Mixed Findings of Fact, Conclusions of Law, and Interlocutory Order dated June 19, 2013- Exhibit “A” to Plaintiff’s response to Defendant’s Motion for Judgment on the Pleadings.

      . This award which was reduced to judgment was the subject of various emergency motions to stay execution and garnishment. These motions are moot since the judgment has been marked satisfied.

      . The proposed order submitted by B&L and executed by the court, contained an error. The order provided in part as follows: “ORDERED that the Court shall consider the preliminary objections and claims concerning the $132,259.70 found to be beyond the scope of the arbitration concluded on June 19, 2013.” This language misstated the arbitrator’s finding and conclusion. The arbitrator did not find or conclude that the $132,259.70 was beyond the scope of the Arbitration Agreement. Instead, the arbitrator found and concluded that the $132,259.70 was beyond the scope of the Termination Agreement and denied the request.

      . Stoeckinger v. Presidential Fin. Corp. of Delaware Valley, 948 A.2d 828, 832 (2008).

      . Id. at 832 (2008), citing Dempsey v. Cessna Aircraft Co., 439 Pa. Super. 172, 653 A.2d 679, 681 (1995) (en banc).

      . Hopewell Estates, Inc. v. Kent, 435 Pa. Super. 471, 476, 646 A.2d 1192, 1194 (1994).

      . Id.

      . Interlocutory Mixed Findings of Fact, Conclusions of Law, and Interlocutory Order dated June 19, 2013- Exhibit “A” to plaintiffs response to defendant’s motion for judgment on the pleadings.

      . See, Midmo Co., Inc. v. Presbyterian Hous. Dev. Co., 739 A.2d 180, 186 (Pa. Super. 1999).

      . The court is also not persuaded by B&L’s reliance upon the August 5, 2013 order to support its position that the disciplinary attorneys’ fee was beyond the scope of the arbitration and therefore not fully adjudicated. As discussed in footnote 3, supra, the language contained in said order referencing “beyond the scope of arbitration” is erroneous.

      . B&L Answer with New Matter and Counterclaim.

      . Exhibit A is the Termination Agreement.

      . During oral argument, B&L argued that the claim of equitable indemnification survives the arbitration. However, said claim specifically references the Termination Agreement for support, mirrors the claim for contractual indemnity and was fully adjudicated by the arbitrator.

      . Exhibit F to Sigman’s Reply to New Matter and Answer to B&L counterclaim — Arbitrator’s Findings of Fact and Conclusions of Law.


source: Caselaw Access Project

author: TUNNELL, J.,

license: Public Domain

text:
    Karkalas v. Martin

      C.P. of Chester County,
    No. 2012-11560

      Mark S. Halpern, for plaintiff.

      Joseph P. Vassalotti, for defendants.
    June 16, 2015
   TUNNELL, J.,

ORDER

AND NOW, this 16th day of June, 2015, upon consideration of the motion in limine of defendants William Martin and Graebers Lumber Company to preclude plaintiff’s experts from testifying at trial, it is hereby ORDERED and DECREED that said motion is GRANTED for the reasons set forth below and, as a consequence, Joseph Bavaria, M.D., Arunan Sivalingam, M.D., Robert C. Kleiner, M.D. and Lawrence A. Kerson, M.D. will not be permitted to give their respective opinions concerning causation between the alleged negligence and the injuries claimed.

      . Background
      This lawsuit stems from a motor vehicle accident that occurred on November 18, 2010. In his Complaint, plaintiff alleges that he suffered injury when defendant Martin negligently operated his truck so as to cause it to collide with plaintiff’s car. Plaintiff alleges that, as a result of the accident, he sustained severe personal injuries and permanent damage. (Compl., at ¶¶33, 35.)
      Plaintiff filed a claim for negligence and seeks punitive damages against William Martin, as the driver of the truck, and Graebers Lumber as the employer of Mr. Martin. {Id., ¶¶32, 33.)
      Plaintiff testified at his deposition that the accident occurred at approximately 10:00 a.m. on November 18, 2010. (Defs.’ Mot. S.J., at Ex. G., pp. 24:103; 83:1-3.) On that date, he was driving to his office {Id., at 84: 4-6) and the weather and road conditions were dry, bright and sunny. {Id., at 91: 20-25.) He testified that the accident occurred at the intersection of Valley Park Road and Route 23 in Chester County. {Id, at 91: 11-14.) He was traveling eastbound on Route 23 and testified that there were no vehicles in front of him and that nothing obstructed his view. {Id., at 93: 22-25, 96: 15-24.)
      Dr. Karkalas testified that he never saw the truck prior to making contact with it and that the truck was not in his lane. {Id, at 94: 4-6.) He testified that while traveling down Route 23 he suddenly felt and heard a collision. {Id, at 97: 20-25.)
      Defendant William Martin contends that he was in the process of making a right hand turn prior to occurrence of the accident and was forced to stop his vehicle in the midst of his turn. {Id., at 3.) After his vehicle was at a complete stop, Martin claims Dr. Karkalas drove his vehicle into the rear of Mr. Martin’s vehicle.
      Plaintiff claims to have suffered the following injuries as a result of the accident:
      (a) an aortic valve abnormality and ascending aortic aneurysm requiring aortic valve replacement and aortic reconstruction;
      (b) persistent cognitive difficulties, with associated irritability, anxiety and memory loss;
      (c) concussion and post-traumatic stress disorder; and
      (d) severe vision disturbances and posterior vitreous detachments requiring surgery to restore vision in both eyes.
      (Compl., at ¶¶22, 24, 27.)
      Discovery of Expert Witnesses
      Under an Administrative Order dated November 15, 2013, plaintiff was to serve defendants with all expert reports by June 30, 2014. On April 30, 2014, defendants propounded Interrogatories and Request for Production of Documents upon plaintiff. In defendants’ Interrogatory Request No. 13, plaintiff was asked to identify any expert witnesses:

        “13. State the name and address of each person whom you expect to call as an expert witness at trial, and state the subject matter on which the expert is expected to testify ..
      Under a Joint Stipulation dated May 2, 2014, plaintiff was to serve all expert reports by August 20,2014.
      On September 26, 2014, plaintiff responded to defendants’ inquiry of expert witnesses as follows:
      “13. Objection. Plaintiff objects to this interrogatory to the extent that discovery is ongoing and Plaintiff has yet to determine which experts will be retained on his behalf. Plaintiff specifically reserves the right to supplement this response at a time closer to trial and in accordance with applicable rules.”
      Pursuant to a Second Joint Stipulation dated November 3, 2014, plaintiff’s expert reports were due by February 16, 2015.
      This case is now at the eve of trial. As of this date, in June 2015, plaintiff has not produced any expert reports as such. Instead, plaintiff has produced reports of four (4) of plaintiff’s treating physicians and states that he intends to call them to “testify at trial as to Dr. Karkalas’ injuries and causation.” (Plf.’s Resp. to Defs.’ Mot. S.J., last paragraph.) Defendants have challenged this tactic by way of a Motion in Limine and also a Motion for Summary Judgment.
      Analysis
      In Pennsylvania, a motion in limine is the proper procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before evidence has been offered. Yacoub v. Lehigh Valley Medical Assocs., P.C., 805 A.2d 579 (Pa. Super. 2002). The admission of evidence, including expert testimony, is a matter largely within the discretion of the trial judge. Eichman v. McKeon, 824 A.2d 305, 319 (Pa. Super. 2003). The decision of the trial court will not be disturbed without a clear abuse of discretion or a clear error. See Mitchell v. Randall, 368 Pa. Super. 421, 427, 534 A.2d 508, 510 (1987).
      The mere showing that evidence is relevant is not, in itself, sufficient to show admissibility. Lewis v. Mellor, 259 Pa. Super. 509, 393 A.2d 941 (1978). Irrelevant evidence is to be excluded if its probative value is substantially outweighed by danger, unfair prejudice or confusion. Whistler Sportswear, Inc. v. Rullo, 259 Pa. Super. 230, 433 A.2d 40 (1981).
      Plaintiff has the burden of proving all damage claims. Griffin v. Tedesco, 355 Pa. Super. 475, 513 A.2d 1020 (1986). In order for proposed damage testimony to be relevant, it is incumbent upon the plaintiff to provide, by competent medical testimony, a causal link between the alleged negligence and damages claimed. Metz v. Quaker Highlands, Inc., 714 A.2d 447 (Pa. Super. 1998).
      If the court learns, during the course of trial, that damages claimed are not supported by the evidence, the defendant can be severely prejudiced by presentation of irrelevant testimony, so such matters are best addressed pre-trial. See Smith v. Celotex Corp., 387 Pa. Super. 340, 564 A.2d 209 (1989) (holding that it is reversible error not to direct a verdict in favor of defendant on an issue of lost wages where evidence was insufficient to allow the issue to go to a juiy).
      Rules Governing Expert Witnesses and Testimony
      Pennsylvania Rule of Civil Procedure 4003.5 and related case law requires parties utilizing expert witnesses (and requested in interrogatories) “to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Pa. R.C.P. 4003.5(a)(1)(b). Thus, parties must disclose expert opinions prior to trial by providing detailed and specific reports signed by the experts. These reports must contain a significant degree of specificity. See Walsh v Kubiak, 443 Pa. Super. 284, 661 A.2d 416 (1995); Wilkes-Barre Iron & Wire Works, Inc. v. Pargas of Wilkes-Barre, Inc., 348 Pa. Super. 285, 502 A.2d 210 (1985).
      The purpose of the rule is to “reveal fully the facts and opinions of the experts or his grounds therefore” and to prevent unfair surprise to the opposing party. See Explanatory Note to Pa. R.C.P. 4003.5. Expert opinions must be stated with a reasonable degree of scientific or medical certainty. See Pa. R.E. 702.
      Further, Pennsylvania Rule of Civil Procedure 4003.5(c) limits proposed expert testimony to that which is contained within the expert report of answers to expert interrogatories that are prepared and produced by plaintiff. The rule states:
      To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, the direct testimony of the expert at trial may not be inconsistent or go beyond the fair scope of his or her testimony in the discovery proceedings as set forth in the deposition, answer to an interrogatory, separate report, or supplement thereto.
      Pa. R..C.P. 4003.5(c); see also, Brady v. Ballay, Thorton, Maloney Med. Assocs., Inc., 704 A.2d 1076 (Pa. Super, 1997); Walsh v. Kubiak, supra.

      Rule 4003.5 clearly provides that an expert cannot testify at trial about matters that are not contained within the four corners of his report. See Pa. R.C.P. 4003.5(c). An expert cannot, on the witness stand, testify to or offer an opinion on new matters excluded from his report or any untimely produced supplemental report. To allow experts to testify to matters not contained within their reports would be in violation of the Pennsylvania Rules of Civil Procedure and would severely prejudice defendants by permitting an expert to testify on liability and causation issues regarding defendants where none previously existed.
      Plaintiff’s Proposed Expert Testimony
      In his responses to Defendants’ Motions in Limine and Summary Judgment, plaintiff points to the following portions of his treating physicians’ reports as his proffered opinions on causation.
      Dr. Karkalas treated with Joseph Bavaria, M.D., Director of the Thoracic Aortic Surgery Program at the Hospital of the University of Pennsylvania, for severe aortic regurgitation with heart failure. Dr. Karkalas underwent aortic valve replacement and aortic reconstruction in June 2011, seven (7) months post-accident. On annual review, in a letter dated September 18, 2012, under headline “Impression/Plan,” Dr. Bavaria wrote:
      It has been noted that the patient had a traumatic deceleration 6 months prior to surgery reconstruction of the ascending aorta. It was also 2 months prior to rapid development of heart failure most probable secondary to valvular dysfunction. We know that the ascending aorta is the second most common site for intimal disruption after deceleration trauma.
      Intimal tears are associated with dilated ascending aorta and subsequent development of aortic regurgitation. If the AI is severe enough, then a dilated cardiomyopathy becomes evident. While it is impossible to fully ascertain why this series of conditions developed, it is certain that there is a significant relationship to his deceleration trauma (emphasis added).
      (PL’s Resp. to Mot. In Limine, at Ex. A.)
      With reference to his posterior vitreous detachments requiring surgery to restore vision to both eyes, the report of Dr. Arunan Sivalingam, plaintiff’s eye surgeon, dated October 10,2012, states:
      Dr. Karkalas has been followed here for pars plana vitrectomy for posterior vitreous detachment and significant floaters. Originally, he had a deceleration injury related to a car accident and he had dissected aortic aneurism and sometime after that he has also developed significant floaters . . . based on my impression and for him to undergo the pars plana vitrectomy for significant floaters, probably the deceleration injury had something to do with the premature precipitation of posterior vitreous detachment (emphasis added).

        {Id., at Ex. B.)
      Dr. Robert C. Kleiner, in his report dated March 20, 2012, summarized his examination of Dr. Karkalas as follows:
      As you know [Dr. Karkalas] was involved in a serious automobile accident 1 1/2 years ago. Immediately following the accident, he noted a marked increase in floaters in both eyes... They are quite large and seemed to interfere significantly with his vision and lifestyle. I told him that, unfortunately, the only way to relieve his visual symptoms would be to perform vitrectomy surgery and that we usually try to discourage vitrectomy surgeiy just to relieve vitreous floaters. However, he seems to be very bothered by his symptoms and they do seem to interfere with his lifestyle significantly (emphasis added).

        (Id., at Ex. C.)
      Dr. Karkalas also complained of persistent cognitive difficulties with associated irritability, anxiety and memory loss. He treated with Lawrence A. Kerson, M.D., a neurologist. Dr. Kerson diagnosed him with concussion and post-traumatic stress disorder. Dr. Lawrence A. Kerson’s report dated December 20, 2010, under “Neurological Evaluation,” notes:
      Dr. Karkalas . . . was involved in an automobile accident on November 18, 2010 in which I-beams protruding from a flatbed truck in front of him sheared the top of his car and even took off the passenger side front headrest... At the time of impact, he was stunned but did not lose consciousness. He describes 5 or 6 minutes of being “in shock.”
      Dr. Kerson continues under “Assessments”:
      1. Post Concussion Syndrome . . . (Primary) The clear combination of symptoms after an accident without clear loss of consciousness but with a significant acceleration deceleration component likely reflects post concussion syndrome, without loss of consciousness. The differential diagnosis includes post traumatic stress disorder, given the terrifying quality of the accident (emphasis added).

        {Id., at Ex. D.)
      Form and Certainty of Expert Opinion
      Pennsylvania case law is clear that in a personal injury case when there is no obvious causal relationship between the accident and the injury, unequivocal medical testimony is necessary to establish the causal connection. Smith v. German, 434 Pa. 47, 253 A.2d 107 (1969); Florig v. Sears, Roebuck & Co., 388 Pa. 419, 130 A.2d 445 (1957); Washko v. Ruckno, Inc., 180 Pa. Super. 606, 121 A.2d 456 (1956); Rich v. Phila. Abattoir Co., 160 Pa. Super. 200, 50 A.2d 534 (1947). Medical testimony was required to establish a causal connection between alleged overexertion and death from a heart attack. Washko, 180 Pa. Super, at 609, 121 A.2d at 456-57. Similarly, medical testimony was held necessary when plaintiff contended that pneumonia resulted from a cut in his arm two months previously. Anderson v. Baxter, 285 Pa. 443, 132 A. 358 (1926). Expert testimony is not required when the injury is so immediately and directly, or naturally and probably, the result of the accident that the connection between them does not depend solely on the testimony of expert witness. Tabuteau v. London G. & A. Co., Ltd., 351 Pa. 183, 40 A.2d 396 (1945).
      Expert testimony is clearly necessary in this case and plaintiff does not deny it.
      “When a party must prove causation through expert testimony, the expert must testify with reasonable certainty that in his professional opinion, the result in question did come from the cause alleged.” Cohen v. Albert Einstein Med. Ctr., 450 Pa. Super. 392, 399, 592 A.2d 720, 723 (1991). An expert witness is not permitted to guess or offer an opinion based on mere conjecture no matter how skilled the witness may be. Collins v. Hand, 431 Pa. 378, 390, 246 A.2d 398, 404 (1968).
      In determining whether the expert’s opinion is rendered to the requisite degree of certainty, the court examines the expert’s testimony in its entirety. Carrozza v. Greenbaum, Md., et al., 866 A.2d 369, 379 (Pa. Super. 2004) (citation omitted). “That an expert may have used less definite language dos not render his entire opinion speculative if at some time during his testimony he expressed his opinion with reasonable certainty.” Id. (citation omitted). Accordingly, an expert’s opinion will not be deemed deficient merely because he or she failed to expressly use the specific words, “reasonable degree of medical certainty.” See Cmwlth. v. Spotz, 562 Pa. 498, 537, 756 A.2d 1139, 1160 (2000) (indicating that “[i]n this jurisdiction, experts are not required to use ‘magic words’” but, rather, “this Court must look to the substance of [the expert’s] testimony to determine whether his opinions were based on a reasonable degree of medical certainty rather than upon mere speculation.”)
      Nevertheless, “[a]n expert fails this standard of certainty if he testifies ‘that the alleged cause ‘possibly,’ or ‘could have’ led to the result, that it ‘could very properly account’ for the result, or even that it was ‘very highly probable’ that it caused the result.” Eaddy v. Hamaty, 694 A.2d 639, 642 (Pa. Super. 1997) (citations omitted), see also, Corrado v. Thomas Jefferson Univ. Hosp., 790 A.2d 1022, 1031 (Pa. Super. 2001) (finding expert opinion that defendant “more likely than not” deviated from standard of care insufficiently certain).
      With these principles in mind, this court will not permit Dr. Sivalin-gam to testify, consistent with his report that “probably” the deceleration injury “had something to do with” the premature precipitation of posterior vitreous detachment.
      Dr. Kleiner states that the patient noted a marked increase in floaters in both eyes “immediately following” the accident. This is but a temporal connection at best, not an expert opinion on causation, and it is just a repetition of what the patient said. He will not be permitted to so testify.
      Dr. Kerson’s opinion, as proffered by the plaintiff, that the combination of symptoms after the accident “likely reflects” post-concussive syndrome, does not come close to the required certainty. He will not be permitted to testify at trial consistent with such opinion.
      Finally, Dr. Bavaria’s letter wherein he employs the phrases “it is certain” that there is “a significant relationship” to plaintiff’s deceleration trauma almost resembles an expert opinion on causation. The court has given this phrase the most thought. However, ultimately, it is unknown what “a significant” relationship between the symptoms and the trauma means. The court could guess, but it would mean that a jury would also have to guess. The court simply does not know what is meant by “a significant relationship.” The court has searched in vain for precedent interpreting such words in this context. It concludes that if the phrase “very highly probable that it caused the result,” has been ruled to be insufficient as an expression of causation, Albert v. Alter, 252 Pa. Super. 203, 381 A.2d 459, 470 (1977) (citations omitted), then this formulation fails as well. The court cannot permit Dr. Bavaria to opine in this fashion to the jury.
      It is incumbent upon the plaintiff to provide by competent medical testimony a causal link between the alleged negligence and the injuries claimed. Metz, supra. Plaintiff has not done so.


author: PICCIONE, J.,

text:
    Commonwealth v. Farris

      C.P. of Lawrence County,
    No. 954 of 2014 CR

      Jonathan R. Miller, for Commonwealth.

      Nick A. Turco, Jr., for defendant.
    June 17, 2015
   PICCIONE, J.,

Before the Court for disposition is the Motion to Suppress (hereinafter, the “Motion”), which consists of a Motion to Suppress and Motion for Writ of Habeas Corpus filed on behalf of the Defendant, William Assad Farris (hereinafter, the “Defendant”). The Defendant is charged with possession of drug paraphernalia pursuant to 35 P.S. § 780-113(a) (32) and operating a motor vehicle without a muffler or other effective noise suppressing system pursuant to 75 Pa.C.S.A. § 4523(c). The Defendant argues in his Motion that he was subjected to an illegal search and seizure in violation of his constitutional rights. The Defendant requests this Court to suppress all evidence obtained as fruit of an illegal search and seizure and to preclude the Commonwealth from using the evidence at trial. For the reasons discussed below, the Defendant’s Motion is granted in part and denied in part.

The above-listed charges were filed against the Defendant as a result of events alleged to have occurred on August3,2014. On that date, at approximately 1:17 A.M., Officer Randall Cook (hereinafter, “Officer Cook”) of the Union Township Police Department was on duty in Union Township near the Get-Go gas station on W. State Street, Union Township, Lawrence County. Officer Linton was also inside Officer Cook’s vehicle. Officer Cook observed a white Cadillac sedan making a loud sound and without a properly functioning exhaust system leaving the Get-Go parking lot. Officer Cook believed that the vehicle did not have a muffler system, so he activated his emergency lights to stop the vehicle. Once stopped, Officer Cook also turned the spotlight on the vehicle. Officer Cook saw three passengers in the vehicle who were moving around, dipping, and grabbing things inside the vehicle. In his three-year experience as a Union Township police officer and two and one-half years experience as a City of New Castle police officer, Officer Cook identified the movements in the vehicle to be similar to those of people who were hiding drugs or concerned about drugs or weapons inside the car.

Based upon his observations, Officer Cook called Officer Alfred DeCarbo (hereinafter, “Officer DeCarbo”) of the Neshannock Township Police Department because the Union Township Police Department does not have a K-9 unit. Within ten minutes of contacting him, Officer DeCarbo arrived at the scene with his certified trained narcotics detection canine, Avie, whom Officer DeCarbo has had for approximately one year. Prior to Officer DeCarbo’s arrival, Officer Cook approached the vehicle to determine the identity of the driver and occupants and to inform him that he was operating a vehicle without a proper muffler system. Thereafter, the occupants of the vehicle were removed from the vehicle when the canine approached the vehicle. Officer Cook does not recall whether the occupants were patted down. Officers Cook and Linton stood with the occupants while Officer DeCarbo performed the canine sniff. The canine indicated a positive result by pawing at two locations: the driver’s side door and the passenger’s side door handle.

As a result of the canine search, Officer Cook and Officer Linton conducted a search of the vehicle. They searched the driver and passenger’s sides of the vehicle. Inside the driver’s side door, Officer Cook located a glass tube with bum marks on it, which Officer Cook identified as a crack pipe. The Officers also located Chore Boy, which is a copper scrubber that Officer Cook indicated as being commonly used to smoke narcotics. The pipe was seized as evidence, and it remains at the Union Township Police Department.

The Defendant also testified regarding the events leading up to his arrest on August 3,2014. According to the Defendant, he drove the vehicle into the Get-Go parking lot, parked his vehicle, purchased a drink, and returned to his vehicle. While he entered the store, he left his car running. The Defendant concedes that his muffler system was not working correctly, and his car was making a loud noise. As he testified, he believed everyone at the Get-Go parking lot heard the loud sound his vehicle was making. When the Defendant parked his vehicle, the Defendant observed a police vehicle in the parking lot drive around his vehicle. Upon exiting the parking lot, the Defendant made a right-hand turn onto W. State Street. He observed the police vehicle in the parking lot of Pizza Joe’s, an adjacent building to the Get-Go. Just as the Defendant turned, he saw the police vehicle pull behind his vehicle and activate the emergency lights. The Defendant then immediately pulled his car off the road.

Officer Cook approached the vehicle at the driver’s side and Officer Linton approached the vehicle’s passenger side toward the rear. Officer Cook asked the Defendant for his driver’s license and registration and to identify the occupants. The Defendant asked Officer Cook why he was pulled over, and Officer Cook informed him that it was because his vehicle was making a loud noise. Officer Cook asked if the Defendant were nervous, and he responded that he was not, that he just wanted to know why he was being pulled over. Officer Cook and Officer Linton then returned to the police vehicle.

The Officers remained in the police cruiser for approximately four to five minutes prior to Officer DeCarbo’s arriving with the canine. Officer Cook returned to the Defendant’s vehicle and asked the occupants to exit their vehicle and to stand behind the police cruiser. The Defendant and occupants complied. The Defendant was not patted down or otherwise searched prior to the canine search of the vehicle.

The Defendant filed the instant Motion, wherein he argues that all evidence obtained as a result of the search of the vehicle must be suppressed because those items were the product of an illegal search and seizure in violation of his rights pursuant to the United States Constitution and the Constitution of the Commonwealth of Pennsylvania. The question this Court must consider is the following: Whether upon stopping a vehicle at night for a violation of the motor vehicle code, a police officer’s observation of the occupants’ making furtive movements constitutes reasonable suspicion that criminal activity is afoot to enable the officer to conduct a canine search of the exterior of a vehicle? Based upon the totality of the circumstances, these facts are insufficient to establish the requisite reasonable suspicion to conduct a canine search of the exterior of the vehicle.

Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Comm. v. Lindblom, 854 A.2d 604, 605 (Pa. Super. 2004). At the conclusion of the hearing, the suppression court judge shall enter findings of fact and conclusions of law as to whether the evidence was lawfully obtained. Pennsylvania Rules of Criminal Procedure Rule 581(1). “It is within the suppression court’s sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony.” Comm. v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003). The suppression court judge is entitled to believe all, part, or none of the evidence presented. Comm. v. Snell, 811 A.2d 581, 584 (Pa. Super. 2002). “When faced with conflicting testimony, a suppression court, as factfinder, may pass upon credibility, and these findings will not be disturbed when supported by the record.” Comm. v. Fahy, 516 A.2d 689, 696 (Pa. 1986).

All Pennsylvania citizens are afforded protections against unreasonable searches and seizures under both Article 1, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution. Pennsylvania recognizes the three levels of interaction between police officers and citizens that have been delineated by the Supreme Court for evaluating alleged violations of citizens’ rights against unlawful searches and seizures. Comm. v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995). These three levels differ with regard to the requisite level of suspicion an officer must have and a citizen’s compulsion to respond to an officer’s requests. Id. The least intrusive interaction is a mere encounter, which involves a request for basic information. Id. An officer does not need to have any particular level of suspicion to initiate a mere encounter, and there is no official compulsion on the part of a citizen to stop or respond to an officer’s request in a mere encounter setting. Id. The citizen is free to stop speaking and leave at any point.

The second level of interaction is an investigative detention, which is more invasive than a mere encounter. Id. A citizen detained for investigative purposes is compelled to stop for a brief period of detention that does not involve coercion such as that which would reach the level of an arrest. Id. Consequently, to initiate an investigative detention, an officer must have reasonable suspicion. Id. at 1048. To establish reasonable suspicion, “an officer must articulate specific facts in addition to inferences based on those facts to support his belief that criminal activity is afoot.” Comm. v. Shabazz, 18 A.3d 1217, 1221 (Pa. Super. 2011). The essence of a court’s inquiry should be whether the facts available to the officer at the time of the intrusion upon the citizen’s rights, when considered in the totality, would warrant a man of reasonable caution to believe that the officer’s actions were appropriate. Comm. v. Blair, 860 A.2d 567, 573 (Pa. Super. 2004).

The third and final level of citizen-police interaction is the custodial detention. Id. This is the functional equivalent of an arrest and must be supported by probable cause, which is a greater degree of suspicion than the reasonable suspicion required for an investigative detention. Id. at 1048, fn. 3. “Probable cause is made out when the facts and circumstances which are within the knowledge of the officer at the time of the arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a [person] of reasonable caution in the belief that the suspect has committed or is committing a crime.” Comm. v. Williams, 2A.3d611 (Pa. Super. 2010) (citations omitted). “[P]robable cause does not require certainty, but rather exists when criminality is one reasonable inference, not necessarily even the most likely inference.” Comm. v. Cook, 865 A.2d 869, 875 (Pa. Super. 2004). “In determining whether probable cause exists, [courts] apply a totality of the circumstances test.” Williams, 2 A.3d at 611.

In the case sub judice, the Defendant encountered the police vis-a-vis a traffic stop based upon a Motor Vehicle Code violation. “A police officer may stop a vehicle whenever he or she has articulable and reasonable grounds to suspect that a provision of the Motor Vehicle Code has been violated.” Comm. v. Palmer, 751 A.2d 223, 226 (Pa. Super. 2000). Officer Cook testified that he heard the loud noise emanating from the Defendant’s vehicle, and the Defendant also testified that he did not have a proper muffler system in place between it had been stolen. Based upon the noise alone, the Officers had sufficiently reasonable grounds to suspect that the Defendant was operating a vehicle without a proper muffler system, in violation of the motor vehicle code. Therefore, the initial stop of the Defendant’s vehicle was clearly permissible as it was supported by reasonable suspicion.

Although the reasoning for conducting a traffic stop was valid, the Officers subsequently held the Defendant specifically for investigative purposes based upon no additional information that he had when he first approached the vehicle. Officer Cook instructed the Defendant and the other occupants of the vehicle to exit the vehicle to enable Officer DeCarbo to facilitate a canine search of the exterior of the vehicle. A police officer may stop a vehicle, check the driver’s license and registration, and issue a citation if there is reasonable belief that a provision of the Motor Vehicle Code is being violated. Comm. v. DeWitt, 608 A.2d 1030, 1032 (Pa. 1992); Comm. v. Talley, 634 A.2d 640, 643 (Pa. Super. 1993). After doing so, however, the driver must be allowed to proceed unless the police officer has reasonable grounds to suspect an illegal transaction in drugs or some other serious crime. Comm. v. Lopez, 609 A.2d 177, 182 (Pa. Super. 1992).

The Commonwealth relies upon Officer Cook’s observation of the movements of the occupants prior to approaching the vehicle to support a finding of reasonable suspicion of criminal activity. Specifically, Officer Cook testified that upon stopping the Defendant’s vehicle and turning on the spot light, he observed the occupants “dipping and grabbing at things.” He believed that the occupants were trying to hide drugs or guns.

The Superior Court of Pennsylvania in Comm. v. Buchert, 68 A.3d 911 (Pa. Super. 2013), considered a similar issue as the one in the instant case. In Buchert, two officers were on duty in Philadelphia around 12:15 A.M. when they spotted a vehicle traveling with a broken tail light. Id. at 912. The officers noted that they were in a high narcotics area. The officers pulled the vehicle over, and when they exited the police cruiser, with the use of a flashlight, they could see the defendant, who was in the front passenger seat, bend forward and appear to reach under the seat. Id. The officers instructed the occupants to keep their hands visible, which they did. Id. The officers recalled that the defendant appeared to be nervous and could see his heavy breathing and rapid heartbeat. Id. At that point, an officer instructed the defendant to exit the vehicle, and the officer performed a frisk on the defendant, which revealed no contraband, Id. The officers then searched the inside of the vehicle, in the defendant’s immediate area of control, in which the officers located a .22 caliber revolver, Id. The defendant filed a motion to suppress evidence, wherein he argued that the evidence was obtained as the result of an unlawful search devoid of probable cause. Id. The trial court granted the motion, and the Commonwealth appealed. Id.

On appeal, the Commonwealth argued that the trial court erred in granting the motion to suppress because the officers had sufficient cause to conduct a protective search of the area within the defendant’s immediate control when the defendant bent forward and reached under the seat and appeared nervous. Id. at 913. The Superior Court agreed, Id. Although rejecting the officers’ contention that the stop occurred in a high crime area, the Court reasoned that because the stop occurred at night, and the officers observed the defendant reach under his seat before exhibiting extreme nervousness, under the totality of the circumstances, the officers had reasonable suspicion to conduct a Terry protective weapons search. Id. at 916. The Court reversed the trial court and remanded the case.

Similarly, the Superior Court has considered other cases, but none exactly on point. Although the major inquiry surrounded whether a defendant gave consent to search a vehicle, in Comm. v. Mover, the Court found that furtive movements and nervousness, alone, did not support a finding of the existence of reasonable suspicion. 954 A.2d 659, 670 (Pa. Super. 2008). The Court cited Comm. v. Reppert, in support of this claim. Id. In Reppert, the determination of reasonable suspicion for an initial traffic stop was not the central issue of the case; notwithstanding this, the Court found that furtive movements and nervousness establishes only a hunch, insufficient to hold a defendant for further investigation or a Terry stop. 814 A.2d 1196, 1206 (Pa. Super. 2002). Also, in Comm. v. Cartagena, the Superior Court found that a protective search of a vehicle was illegal when the facts only established that the stop occurred at night, the windows were tinted, and the defendant appeared to be nervous. 63 A.3d 294, 304 (Pa. Super. 2013). The Court found that although merely a Motor Vehicle Code violation, tinted windows had to be considered in the totality analysis because they pose a risk to the officers upon approaching a vehicle. Id. at 305.

In considering the totality of the circumstances, the Court finds that the Officers did not possess sufficient articulable facts to support a finding that reasonable suspicion that criminal activity was afoot. The record establishes that the stop occurred at night and the Officers observed furtive movements. The Court will not consider the lack of a muffler because this poses no danger to the Officers. Although Officer Cook testified that based upon the furtive movements, he ordered the occupants of the vehicle to exit because he was concerned in part for officer safety. Notable, however, Officer Cook did not recall whether he conducted a Terry frisk or asked the occupants if they had any weapons on them, and the Defendant testified that none of the occupants were, in fact, patted down. The Officers did not feel the need to conduct a protective search of the immediately accessible areas to the occupants to ensure no weapons were present. Instead, Officer Cook just called Officer DeCarbo to facilitate a search for narcotics. If the Officers had a supported reason to be concerned for their safety, or if the Defendant had displayed extreme nervousness, perhaps this would be enough to find reasonable suspicion. Based upon the credible facts in the instant case, considered in the totality, the Court cannot find that the Officers possessed sufficient articulable facts to support a finding of reasonable suspicion. The Commonwealth failed to meet its burden to establish that the evidence obtained by the Officers is admissible at trial. Therefore, the canine search of the exterior vehicle as well as the Officers’ search of the interior of the vehicle were conducted illegally in violation of the Defendant’s constitutional rights. As a result, all evidence obtained as a result of the searches must be suppressed. Based upon the foregoing, the Motion to Suppress Evidence is hereby GRANTED.

Also within the Motion to Suppress is the Defendant’s Motion for Writ of Habeas Corpus. As stated above, the Defendant is charged with possession of drug paraphernalia pursuant to 35 P.S. § 780-113(a)(32) and operating a motor vehicle without a muffler or other effective noise suppressing system pursuant to 75 Pa.C.S.A. § 4523(c). In the Motion for Writ of Habeas Corpus, the Defendant argues that the Commonwealth has failed to present a prima facie case of the charges against him. As a result, the Defendant requests this Court dismiss all charges against him.

Filing a petition for writ of habeas corpus is the recognized method for challenging a finding that the Commonwealth has established a prima facie case at the preliminary hearing stage. Comm. v. Karlson, 614 A.2d 249 (Pa. Super. 1996). See also Comm. v. McBride, 595 A.2d 589 (Pa. 1995); Comm. v. Carmody, 799 A.2d 143 (Pa. Super. 2002). On review, the trial court must find that the Commonwealth presented sufficient evidence to make a prima facie showing that the defendant committed the crime with which he or she is charged. Comm. v. Hock, 728 A.2d 943 (Pa. 1999).

In order to establish a prima facie showing, the Commonwealth must present evidence establishing that the crime charged was committed and that there is a probability that the defendant committed the charged crime. Comm. v. Fox, 619 A.2d 327 (Pa. Super. 1993). To prove these two things, the Commonwealth must offer some proof to establish each material element of the offense charged. Comm. v. Owen, 580 A.2d 412 (Pa. Super. 1990). It is not necessary that the Commonwealth prove each element beyond a reasonable doubt. Comm. v. Prosdocimo, 479 A.2d 1073 (Pa. Super. 1994). The Commonwealth need only meet the evidentiary standard of showing “sufficient probable cause” that the defendant committed the offense. Id. Aprima facie case is established when the Commonwealth submits evidence that, if true, would warrant the trial judge to permit the case to go to a jury. Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001). Weight or credibility of the evidence presented is not at issue at a preliminary hearing. Id. The Commonwealth needs only present evidence concerning each element of the crime charged, and the Commonwealth is entitled to all reasonable inferences that can be drawn from the evidence presented. Id. The Commonwealth may prove its case entirely by circumstantial evidence; however, the evidence must not be pure conjecture. Comm. v. Stores, 463 A.2d 1108, 1112 (Pa. Super. 1983).

First, the Defendant is charged with possession of drug paraphernalia pursuant to 35 P.S. § 780-113(a)(32). A person has violated § 780-113(a)(32) of The Controlled Substance, Drug, Device and Cosmetic Act (hereinafter, the “Act”) if he possesses with the intent to use drug paraphernalia. Comm. v. Pitner, 928 A.2d 1104, 1108 (Pa. Super. 2007). The Act defines “drug paraphernalia” in pertinent part as follows: “all equipment, products and materials of any kind which are used, intended for use or designed for use in ... packaging, repackaging, storing, containing, [or] concealing ... a controlled substance in violation of this act.” 35 P.S. § 780-102. “[T]he Commonwealth must establish that the items possessed[] were used or intended to be used with a controlled substance. This burden may be met by the Commonwealth through circumstantial evidence alone.” Comm. v. Torres, 617 A.2d 812, 815 (Pa. Super. 1992). Because the Court herein grants the Defendant’s Motion to Suppress, the Commonwealth has no evidence to present to establish this claim. As a result, the Commonwealth failed to meet its burden to present a prima facie case for this charge, and the Motion for Writ of Habeas Corpus is hereby GRANTED with respect to the charge of possession of drug paraphernalia.

The Defendant is also charged with operating a motor vehicle without a muffler or other effective noise suppressing systempursuantto 75 Pa.C.S. A. § 4523(c). This section provides, “Every motor vehicle shall be equipped with a muffler or other effective noise suppressing system in good working order and in constant operation and no muffler or exhaust system shall be equipped with a cutout, bypass or similar device.” 75 Pa.C.S.A. § 45236(c). Under this section, “a violation occurs if the vehicle’s muffler system is not in good working order.” Comm. v. Bailey, 947 A.2d 808, 813 (Pa. Super. 2008). In Bailey, the Court found that “if an officer hears an unusually loud exhaust, the officer may reasonably infer that there is a problem with the muffler and initiate a stop based upon a reasonable suspicion that the muffler is not ‘in good working order.’” Id. at 814-815. Here, Officer Cook testified that the Defendant’s vehicle was making a loud noise, leading him to believe that the muffler was not in proper working order. The Officer may stop a vehicle based upon the noise alone, rather than the need to observe a defective muffler. Id. at 815. After Officer Cook initiated a traffic stop based upon a faulty muffler, the Defendant informed him that the vehicle currently did not have a muffler in place. The Defendant also acknowledged that the vehicle was indeed emitting a loud noise. This evidence is sufficient to establish a prima facie case of the charge of operating a motor vehicle without a muffler or other effect noise suppressing system pursuant to 75 Pa.C.S.A. § 4523(c). As a result, the Motion for Writ of Habeas Corpus with respect to this charge is hereby DENIED.

Based upon the foregoing, the Defendant’s Motion to Suppress is hereby GRANTED IN PART and DENIED IN PART.

ORDER OF COURT

AND NOW, this 17th day of June, 2015, the case being before the Court on March 9, 2015, for a hearing on the Motion to Suppress and Motion for Writ of Habeas Corpus filed on behalf of the Defendant, with Assistant District Attorney Jonathan R. Miller, Esquire, appearing and representing the Commonwealth of Pennsylvania, and Nick A. Turco, Jr., Esquire, appearing and representing the Defendant, and after consideration of the applicable record, the Court hereby ORDERS AND DECREES as follows:

1. The Defendant’s Motion to Suppress is hereby GRANTED IN PART AND DENIED IN PART pursuant to the attached Opinion.

2. The Defendant’s Motion to Suppress is hereby GRANTED pursuant to the attached Opinion.

3. The Defendant’s Motion for Writ of Habeas Corpus is hereby GRANTED with respect to Count 1 as contained within the Information.

4. Count 1 in the Information, possession of drug paraphernalia pursuant to 35 P.S. § 780-113(a)(32), is hereby STRICKEN.

5. The Defendant’s Motion for Writ of Habeas Corpus is hereby DENIED with respect to Count 2 as contained within the Information.

6. The Clerk of Courts shall properly serve notice of this Order and attached Opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the Court’s file.


author: PER CURIAM, J.,

text:
    Office of Disciplinary Counsel v. Lawless

      June 25, 2015
   PER CURIAM, J.,

Pursuant to Rule 208(h)(1) of the Pennsylvania Rules of Disciplinary Enforcement, this designated member of The Disciplinary Board of the Supreme Court of Pennsylvania herewith submits a recommendation to your Honorable Court with respect to the Petition to Schedule a Probation Violation Hearing filed by Petitioner, Office of Disciplinary Counsel.

I. HISTORY OF PROCEEDINGS

By Order dated March 31, 2014, the Supreme Court of Pennsylvania, upon consideration of the Recommendation of the Three-Member Panel of the Disciplinary Board dated January 13, 2014, granted the Joint Petition in Support of Discipline on Consent filed in the above-captioned matter on December 11, 2013, and ordered that Respondent, Joseph F. Lawless, Jr., was suspended on consent for a period of one year and one day, that the suspension be stayed in its entirety, and that Respondent be placed on probation for a period of two years, subject to certain conditions.

On April 13,2015, Office of Disciplinary Counsel filed a Petition to Schedule a Probation Violation Hearing which alleged that Respondent violated the conditions of his probation by failing to maintain regular communications with his sobriety monitor, Richard H. LeFevre, Esquire. Petitioner requested that a Member of the Disciplinary Board be designated to hold a hearing as required by Rule 208(h), Pa.R.D.E., to determine whether Respondent’s probation should be modified. This Petition was served on Respondent on April 7, 2015.

By letter of April 8, 2014 [sic], Respondent advised Petitioner that he had no opposition to the Petition, was not retaining counsel, and intended to fully cooperate with the Disciplinary Board.

A hearing was held on April 27, 2015, before Disciplinary Board Member James C. Haggerty, Esquire. The hearing was scheduled to begin at 10:00 a.m. Barbara Brigham Denys, Esquire appeared on behalf of Petitioner. Respondent did not appear at 10:00 a.m. Several telephone calls were placed to Respondent using the telephone number provided on Respondent’s letterhead. Respondent did not answer; instead, a voice mail was reached and a message was left. Ms. Denys called Respondent on his cell phone number without success, as it was appearently disconnected. An email was sent to Respondent with no response. At 10:15 a.m., Respondent had not appeared. The hearing proceeded.

Petitioner presented Exhibits ODC-1, ODC-2 and ODC-3. Petitioner offered the testimony of Robert H. LeFevre, Esquire, Respondent’s sobriety monitor, who testified by telephone. The hearing concluded at 10:55 a.m. and the record was closed.

By email dated April 30, 2015, Respondent requested that the record be reopened to allow him the opportunity to appear and testify. Petitioner opposed the request. After consideration, Board Member Haggerty denied the request to reopen the record.

II. FINDINGS OF FACT

The Board Member makes the following findings:

1. Petitioner is Office of Disciplinary Counsel, whose principal office is situated at 601 Commonwealth Avenue, Suite 2700, Harrisburg, Pennsylvania 17106. Petitioner is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of any attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules.

2. Respondent is Joseph R Lawless, Jr. He was admitted to the practice of law in Pennsylvania in 1976. Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

3. On March 31, 2014, the Supreme Court of Pennsylvania ordered that Respondent be suspended on consent for one year and one day, with the suspension stayed in its entirety and probation imposed for a period of two years, subject to conditions. (ODC-1, Exh. A).

4. Among other things, the Court’s Order required that Respondent abstain from alcohol, drugs or other mind-altering chemicals, maintain weekly telephone contact with a sobriety monitor and meet twice monthly with such monitor. (ODC-1, Exh. A)

5. Pursuant to the Court’s Order and in accordance with the provisions of Disciplinary Board Rule 89.293(c) (dealing with substance abuse probation), Respondent was assigned a sobriety monitor, Richard H. LeFevre, Esquire, who, along with Respondent, was to file with the Secretary to the Board quarterly written reports concerning Respondent’s probation. (ODC-1, Exh. B)

6. In Respondent’s July 2014 quarterly report, Respondent reported that he had not met with Mr. LeFevre twice monthly and that he had not maintained weekly telephone contact with Mr. LeFevre during that quarter. Respondent acknowledged that he had not complied with the conditions of his probation and stated that he “resolved to more assiduously comply with the communication component with [his] sobriety monitor moving forward.” (ODC-1, Exhibit E).

7. Mr. Lefevre reported to the Disciplinary Board in his July 10, 2014 quarterly report that he had warned Respondent on May 30, 2014, that he was non-compliant with the conditions of his probation and stated a concern that he did not think Respondent was “taking this seriously.” (ODC-1, Exh. F)

8. In Respondent’s October 2014 quarterly report, Respondent claimed an inability to provide all dates of his meetings and telephone contacts with Mr. LeFevre due to a “computer crash.” Respondent acknowledged in that report that there may have been a month when he met with Mr. LeFevre only once. (ODC-1, Exh. E)

9. By Mr. Lefevre’s January 8, 2015 quarterly report, and his February 9,2015 supplemental report, Mr. LeFevre informed the Disciplinary Board that he had not heard from Respondent since December 29, 2014. (ODC-1, Exh. D)

10. In Mr. Lefevre’s January 8, 2015 quarterly report, he reported concerns that Respondent had had no contact with him in any way for approximately three weeks (from December 4, 2014, to Christmas 2014), and that Respondent merely said “I’m sorry, I know I missed a couple of weeks,” when Respondent did call on December 29, 2014. (ODC-1, Exh.D)

11. Mr. LeFevre also noted in his January 8, 2015 quarterly report that Respondent had not met with him at least twice monthly during that quarter, explaining that Respondent “state[d] that he is traveling frequently which impairs his ability to meet.” (ODC-1, Exh. D).

12. The February 9,2015 supplemental report indicated Mr. Lefevre’s concerns due to Respondent’s “total lack of contact.” Mr. LeFevre reported having no contact with Respondent since December 29, 2014, despite having left messages for Respondent on February 3, 2015 and February 9, 2015. (ODC-1, Exh. D)

13. Mr. LeFevre also reported in his February 9, 2015 supplemental report that a fellow attorney and member of Lawyers Concerned for Lawyers had reported to him an inability to reach Respondent by telephone. (ODC-1, Exh. D)

14. Mr. Lefevre testified at the April 27, 2015 hearing, essentially in accordance with the filed quarterly reports.

15. Mr. LeFevre indicated that throughout the time period that he served as Respondent’s sobriety monitor, Respondent “never really hit all the items he needed to.” (N.T. 16)

16. Mr. LeF evre spoke to Respondent early on about his concerns, and while Mr. Lefevre indicated that Respondent did make more of an effort, at a certain point Respondent’s communication diminished and then stopped altogether. (N.T. 16-17)

17. The last time Mr. LeFevre had a conversation with Respondent was on December 29, 2014. In Mr. Lefevre’s opinion, Respondent was “very cavalier” about missing so many calls. (N.T. 19)

18. Since December 29,2014, Mr. LeFevre has had one instance of contact with Respondent. This occurred by Respondent’s voicemail left on Mr. LeFevre’s telephone on April 18, 2015. In that voice mail, Respondent stated that he had relapsed but that he “hadn’t had a drink in five days” (N.T. 22).

19. Mr. LeFevre returned Respondent’s call and left a voicemail message, but never heard from Respondent. (N.T. 22)

20. Mr. LeFevre is unaware of whether Respondent is practicing law at this time. (N.T. 23)

21. Respondent was served with the Petition to Schedule Probation Violation Hearing by personal service on April 7, 2015. Respondent received notice of the hearing scheduled for April 27, 2015 by letter of the Secretary to the Board dated April 16, 2015, sent certified and first class mail.

22. Respondent did not appear for the hearing on April 27, 2015.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, Respondent violated the terms and conditions of his probation.

IV. DISCUSSION

The evidence of record demonstrates that Respondent violated the terms and conditions of his court-ordered probation by failing to regularly communicate with his sobriety monitor. Pursuant to the Order of March 31,2014, Respondent was directed to meet at least twice monthly and maintain weekly telephone contact with Richard H. LeFevre, Esquire. By quarterly reports filed with the Secretary to the Board, Mr. LeFevre informed the Board that Respondent had failed to meet these conditions.

Specifically, by quarterly report of July 10, 2014, Mr. Lefevre noted that Respondent was non-compliant and that he believed Respondent was not taking his probation seriously. In the quarterly report of January 8, 2015 and supplemental report of February 9, 2015, Mr. LeFevre reported a lack of contact with Respondent for an extensive period of time.

Respondent self-reported his violations in the quarterly reports of July 2014 and October 2014. In these reports, he indicated a willingness to improve his efforts at communicating with Mr. LeFevre.

Mr. Lefevre’s testimony was credible and persuasive. He noted that from the beginning of the probation period. Respondent never completely complied with all conditions of probation. Mr. Lefevre discussed his concerns with Respondent in May of 2014 and noted improvement on Respondent’s part, but never full compliance. At a certain point, Mr. Lefevre stopped hearing from Respondent altogether. From December 4, 2014 to December 29, 2014, Respondent had no contact with Mr. Lefevre. There was contact on December 29, 2014, but Mr. Lefevre felt that Respondent’s attitude regarding his significant lapse in communication was cavalier. After December 29, 2014 until April 18, 2015, Respondent had no contact with Mr. Lefevre. Mr. LeFevre attempted to contact Respondent on two occasions in February of 2015, with no success. The April 18, 2015 voice mail from Respondent to Mr. Lefevre indicated that Respondent, by his own admission, had relapsed from his sobriety. Mr. Lefevre attempted to contact Respondent but was unsuccessful and has not had any communication with Respondent since that voicemail.

Violation of the terms of probation is a serious matter. In this case, Respondent has acknowledged his failure to comply with probation conditions, but has not shown a good faith effort to correct the issues preventing him from fulfilling these conditions. Although he advised Office of Disciplinary Counsel that he would not oppose the Petition and would cooperate, Respondent’s failure to appear at the hearing on April 27, 2015 and offer some explanation for his actions and the intention to make improvements going forward, leaves the Board little choice but to recommend that the stay on the suspension be lifted and suspension imposed for one year and one day. The Board’s duty to the public is our paramount concern. Office of Disciplinary Counsel v. Stern, 526 A.2d 1180 (Pa. 1987). Respondent is not fit to practice law and must be removed from practice in order to prevent harm to the public.

V. RECOMMENDATION

This Member respectfully recommends that the stay be lifted and Respondent, Joseph F. Lawless, Jr., be Suspended from the practice of law a period of one year and one day.

It is further recommended that the additional expenses incurred in connection with the violation of probation proceeding should be paid by Respondent.

ORDER

AND NOW, this 25th day of June, 2015, a Rule having been entered by this Court on May 18, 2015, pursuant to Pa.R.D.E. 208(h), directing Respondent to show cause why the Order of this Court entered on March 31, 2014, should not be modified so as to impose a one year and one day suspension as recommended by the Designated. Disciplinary Board Member and, upon consideration of the responses filed, it is hereby:

ORDERED that the Rule is made absolute; Respondent is suspended from the Bar of this Commonwealth for a period of one year and one day; and he shall comply with all the provisions of Pa.RJD.E. 217.

It is further ORDERED that Respondent shall pay the additional expenses incurred as a result of the revocation proceedings pursuant to Pa.R.D.E. 208(g).

      . Respondent contacted the Board on Thursday, April 30, 2015, three days after the hearing was held, and indicated that due to illness, he was unable to attend the hearing or contact Petitioner or the Board regarding his inability to appear. He requested that the record be reopened; the request was denied.