author: TURGEON, J.,

text:
    Ipjian v. Bender

      June 20, 2002
    C.P. of Dauphin County,
    no. 722 S 2001.

      Dennis Sheaffer, for plaintiffs.

      Brooks Foland, for defendants.
   TURGEON, J.,

On February 26,2002, a jury rendered a verdict in favor of defendants Harold Bender and Lewis Lumber Products Inc. finding them not liable for causing injuries allegedly sustained by plaintiff Brian Ipjian in an automobile accident. Plaintiffs have filed a post-trial motion seeking a directed verdict on the issue of causation and a new trial limited to damages, or alternatively, a new trial on both issues of causation and damages. For the reasons set forth below, plaintiffs’ motion for a new trial, on both causation and damages, is granted.

FACTS

The relevant evidence adduced during the two-day jury trial was as follows: Plaintiff Brian Ipjian was driving three of his children to school on the morning of Friday, November 5,1999. Plaintiff, who had been stopped at a stop sign, began to make a right turn into an intersection when he had to stop due to oncoming traffic. Plaintiff, driving a 1992 Dodge Grand Caravan minivan, was struck from behind by a 22,000 pound lumber delivery truck driven by defendant Harold Bender for his employer, defendant Lewis Lumber Products. (N.T. 16-17, 19, 75, 79.) Defendant Bender had been behind plaintiff at the stop sign and had also made a right turn into the intersection, not noticing traffic had stopped in front of him. (N.T. 17,47.) Plaintiff described the impact as similar to “a big explosion” which moved his vehicle forward several feet despite his foot resting on the brake. (N.T. 17, 19.) The impact shattered the vehicle’s back window, broke the tail lights and bent the tailgate. (N.T. 19-20, 77, 80.) Cost of repairs were about $2,000. (N.T. 38.)

Defendant Bender admitted his negligence in striking plaintiff’s minivan. (N.T. 81.) He testified that just prior to striking the minivan, he had been at a full stop and traveled about one to two car lengths before striking plaintiff’s minivan and that he did not apply his brakes. (N.T. 76-77, 80.) He had no idea how fast he was traveling upon impact. (N.T. 80-81.) Defendant Bender was not injured and his truck was not damaged. (N.T. 77.)

Plaintiff pulled his minivan off the road, checked on his children and sat down on the curb. He testified he felt an immediate aching in his neck and in his left shoulder area where his seatbelt came across him. (N.T. 18, 48.) After being attended to by EMTs, plaintiff drove the van a few blocks back to his home. (N.T. 20.) Mrs. Ipjian confirmed that her husband complained of neck and arm pain the day of the accident. (N.T. 69.)

Plaintiff testified that he visited his family physician, Scott Mueller M.D., that day, complaining of soreness in his neck and left shoulder. (N.T. 21.) Dr. Mueller reported that he examined plaintiff on the day of the accident and found him tender over his neck muscles and his upper left trapezius (shoulder). He prescribed an anti-inflammatory and muscle relaxant. (Dr. Mueller dep. at 8.) Dr. Mueller examined plaintiff five days later, on November 9, 1999, noting plaintiff complained of left elbow pain and tingling in his fourth and fifth fingers of his left hand. Dr. Mueller concluded he had an inflamed ulnar nerve and ordered an x-ray of plaintiff’s elbow, which was negative. (Dr. Mueller dep. at 9.) Dr. Mueller also ordered an MRI of plaintiff’s cervical area to find out whether the source of the hand numbness was the ulnar nerve of the neck area. (Dr. Mueller dep. at 11.) The MRI was normal. (Dr. Mueller dep. at 12.) Dr. Mueller restricted plaintiff from work as a corrections officer at SCI Camp Hill through January 17,2000. (N.T. 22-24; plaintiffs’ exhibit 1.) Plaintiff met with Dr. Mueller for a third time January 13, 2000. Dr. Mueller released him back to work with no restrictions. (N.T. 50.) Plaintiff denied ever having had any problem with his left shoulder, neck, arm, elbow or hand prior to the November 5,1999 accident, for which he sought medical treatment. (N.T. 39.)

Dr. Mueller saw plaintiff for a third visit on January 13, 2000. Plaintiff noted improvement but still complained of some pain associated with too much activity. (Dr. Mueller dep. at 10.) Dr. Mueller found plaintiff still had ulnar nerve inflammation and some neck strain. (Dr. Mueller dep. at 13.) Dr. Mueller then saw plaintiff January 27,2000, to assess his progress after having resumed work. He reported plaintiff was having some shoulder pain and some left hand tingling, but that his symptoms had not aggravated. (Dr. Mueller dep. at 14.) Plaintiff did not see Dr. Mueller again until December 11, 2000. He complained then, according to Dr. Mueller, of some left shoulder and neck pain and a lack of range of motion. (Dr. Mueller dep. at 17.) At one last visit, December 20, 2001, Dr. Mueller reported that plaintiff had no complaints except a decreased range of motion. (Dr. Mueller dep. at 18.)

Dr. Mueller, who has been plaintiff’s treating physician for over 15 years, testified, within a reasonable degree of medical certainty, that plaintiff suffered neck, left shoulder, left arm and hand problems as the result of the automobile accident. (Dr. Mueller dep. at 16.) His diagnosis was cervical strain and left ulnar nerve palsy. (Dr. Mueller dep. at 24.) He noted that such injuries typically heal within four to eight weeks but can take longer. (Dr. Mueller dep. at 24.) Dr. Mueller described plaintiff as not a malingering type but one who might actually under-exaggerate complaints. (Dr. Mueller dep. at 19-20.)

As to plaintiff’s prior history, Dr. Mueller confirmed that his partner treated plaintiff in January 1994 for neck pain, left hand numbness, stiff neck. These symptoms resolved with anti-inflammatories and muscle relaxants and resolved within a week. (Dr. Mueller dep. at 28.) Also, in March 1995, Dr. Mueller treated plaintiff for a stiff neck which also resolved within a week. (Dr. Mueller dep. at 28.)

Dr. Mueller referred plaintiff to Dr. Emily Matlin for a second opinion. Dr. Matlin, a physician with specialties in neurology and pain management, testified, within a reasonable degree of medical certainty, that plaintiff’s shoulder symptoms were referable to the automobile accident. (Dr. Matlin dep. at 15-16.) She evaluated plaintiff on March 1,2000, at which time plaintiff complained of pain in the area of his left front shoulder where his seat belt crosses his shoulder. (Dr. Matlin dep. at 9.) Her exam revealed plaintiff had impaired left shoulder motion; the neurologic examination was otherwise normal. (Dr. Matlin dep. at 10.) She prescribed anti-inflammatories and physical therapy, of which plaintiff underwent four sessions. (Dr. Matlin dep. at 11, 20.) Therapy resolved plaintiff’s tendonitis and tightness in the shoulder area as well as improving his 50 percent limit in his range of motion to 20 percent. (Dr. Matlin dep. at 12-13, 15.) She saw him last on May 12, 2000 and he reported nearly one-hundred percent resolution of his left shoulder symptoms. (Dr. Matlin dep. at 14.)

Plaintiff summarized his progress as follows: his neck pain resolved within a few days of the accident, his left arm and hand problems within a few months of the accident, and his shoulder pain resolved by May of 2000 following physical therapy, although, as of the trial, he had range of motion problems and some aggravating tenderness. (N.T. 35.)

The defendants did not seek an independent medical examination of plaintiff and presented no medical testimony. (N.T. 83.)

As to pre-existing conditions, plaintiff admitted to having been involved in motor vehicle accidents in 1991 and 1997 and claimed to have suffered lower back pain in those accidents. (N.T. 38.) To the extent he had suffered any neck pain from those accidents, he testified it was very minor and quickly resolved. (N.T. 39.)

During cross-examination, plaintiff admitted that in a prior deposition he had stated that he had never had a problem with his left shoulder or neck prior to the November 5, 1999 accident. (N.T. 55.) However, on cross, plaintiff admitted to two pre-accident work-related incidents in which he claimed injury to his left shoulder or neck area: in October 1993, plaintiff claimed to have “pulled a muscle in his left shoulder” and complained of left shoulder and neck pain restraining an inmate; and in May 1998, plaintiff filed an employee incident report claiming a “stiff neck, left side, pain in shoulder area” as a result of having been backed up into while on patrol in a security vehicle. (N.T. 57-60, defense exhibits 2A, 4A.) Defendant also put in evidence two other work-related reports involving complaints of injury to plaintiff’s left arm (not involving the shoulder or neck): in May 1993, plaintiff reported an injured left wrist and elbow trying to subdue an inmate, and in July 1996, he filed an incident report claiming that while “making rounds felt pain in chest — and left arm causing fingers in left hand to go numb.” (N.T. 57-60, defense exhibits 1A, 3A.) Plaintiff explained that he was required by work rules to report all these incidents and that he did not seek medical attention outside of the infirmary for any of them. (N.T. 61.)

At the conclusion of trial, the jury was provided with a verdict slip containing three special interrogatories. The defendants admitted, in the first interrogatory, that defendant Bender had negligently driven his truck. The jury was then asked to decide two questions; whether the negligence was “a substantial factor in bringing about the plaintiff’s harm” and if so, the amount of damages plaintiffs were entitled to. The jury answered “no” to the question whether the negligence was a substantial factor and thus did not reach the question of damages.

LEGAL DISCUSSION

The plaintiffs argue the evidence was so weighty in his favor that the jury’s verdict — finding Mr. Ipjian did not suffer any harm from the accident — requires a new trial on this issue as well as damages. In the alternative, plaintiffs request the court direct a verdict finding defendants liable for Mr. Ipjian’s harm and limiting a trial to the issue of damages alone.

A new trial is properly granted where the verdict is against the weight of the evidence. Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985). Although a new trial should not be granted because of a mere conflict in testimony or because the trial judge would have arrived at a different conclusion, a new trial should be awarded where a jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Id.

A motion for judgment n.o.v. can be entered where the evidence is insufficient to support the verdict. Lilley v. Johns-Manville Corp., 408 Pa. Super. 83, 91, 596 A.2d 203, 206 (1991), appeal denied, 530 Pa. 644, 607 A.2d 254 (1992).

The entry of judgment notwithstanding a jury verdict is a drastic remedy. A court cannot lightly ignore the findings of duly-selected jury. Thus, in considering a motion for judgment n.o.v., the court must view the evidence and all reasonable inferences that arise from the evidence in a light most favorable to the verdict winner. The court can enter judgment n.o.v. only if no two reasonable persons could fail to agree that the verdict is improper. Nogowski v. Alemo-Hammad, 456 Pa. Super. 750, 759-60, 691 A.2d 950, 955 (1997).

Plaintiffs claim the only way the jury could have reached its verdict was to capriciously disregard all the evidence which was submitted. Plaintiffs note the evidence was uncontradicted that Mr. Ipjian suffered injuries to his neck, left shoulder and left arm in the accident, that he had no injuries prior to the accident, that Dr. Mueller’s examinations indicated objective findings consistent with plaintiff’s complaints, that both Drs. Mueller and Matlin rendered opinions that plaintiff’s injuries were caused by the accident, that no contrary medical opinion was put forth as to causation and that the accident was more than minor, involving an 11-ton truck.

“[T]he jury is free to believe all, some, or none of the testimony presented by a witness____However, this rule is tempered by the requirement that the verdict must not be a product of passion, prejudice, partiality, or corruption, or must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by uncontroverted evidence presented at trial. . . . The synthesis of these conflicting rules is that a jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.” Neison v. Hines, 539 Pa. 516, 520-21, 653 A.2d 634, 637 (1995). (citations omitted)

The main issue before the court is whether the jury’s finding — that the defendants’ negligence was not a substantial factor in causing the plaintiff’s harm — was against the weight of the evidence such as would warrant a new trial. This issue has been recently addressed by our appellate courts on numerous occasions. Just in the last year in Majczyk v. Oesch, the Superior Court reviewed the case law on the issue of “whether the jury may return a [defense] verdict, ... or a verdict finding that the defendant’s negligence was not a substantial factor in causing the plaintiff’s harm, where the defendant’s medical expert concedes that the plaintiff sustained some injury as a result of the accident.” 789 A.2d 111, 722 (Pa. Super. 2001) (en banc), (emphasis in original) (citations omitted) The court concluded that the synthesis of its decisions is that “where a defendant concedes liability and his or her expert concedes injury resulting from the accident that would reasonably be expected to cause compensable pain and suffering, the jury’s verdict is against the weight of the evidence where it finds for the defendant.” Id. (emphasis in original) See also, Mad den v. Mano, 738 A.2d 493, 497 (Pa. Super. 1999) (en banc) (“It is impermissible for a jury, in a personal injury case, to disregard the uncontroverted testimony from the experts for both parties that the plaintiff suffered some injury as a result of the accident in question,” thus, a new trial was awarded where the jury returned a verdict that defendant’s negligence in causing a rear-end collision was not a substantial factor in causing plaintiff’s harm where the defense expert conceded plaintiff suffered some injury, albeit a mild one (neck and back strain)).

Just a few weeks ago, the Superior Court revisited this issue in Andrews v. Jackson, 2002 Pa. Super. 173 (June 3, 2002). In Andrews, the trial court granted a new trial where the jury found that the defendant’s negligence in causing a vehicle collision was not a substantial factor in causing plaintiff’s injuries and awarded no damages. The new trial was warranted because the jury disregarded uncontroverted testimony that plaintiff suffered some injury, even though defendant’s expert claimed the injury was a minor soft-tissue injury (cervical strain). The Superior Court upheld the grant of a new trial, finding that “[wjhere there is no dispute that the defendant is negligent and both parties’ medical experts agree the accident caused some injury to the plaintiff, the jury may not find that the defendant’s negligence was not a substantial factor in bringing about at least some of plaintiff’s injuries.” Id. at ¶12.

Defendants contend these holdings are not applicable since they have not conceded or agreed that plaintiff sustained an injury in this case. Indeed, the cases cited above all involved cases in which the defendant presented expert testimony which indicated that the plaintiff had suffered some injury, even if minor, as a result of negligence. The defendants in this case presented no expert medical testimony. A similar situation was presented to the Superior Court in Kruczkowska v. Winter, 764 A.2d 627, 631-32 (Pa. Super. 2000). There, the court held a new trial must be granted where the jury found defendant’s negligence was not a substantial factor in causing plaintiff’s harm. The jury had initially concluded defendant was negligent for hitting plaintiff’s bicycle and running over her foot. Plaintiff’s medical expert, the only one produced at trial, testified plaintiff suffered accident-related thoracic and lumbosacral sprain and strain as well as hip and foot contusions. Defendant tried to distinguish the line of cases where new trials had been granted noting that in all those cases, both parties’ medical experts had agreed or conceded the existence of some accident-related injury. Defendant had not presented an expert and suggested that the jury was not required to accept the testimony of plaintiff and her expert, even if uncontradicted. Id. at 629. In addressing this distinction, the Kruczkowska court, quoting from an earlier decision in Hawley v. Donahoo, 416 Pa. Super. 469, 611 A.2d 311 (1992), stated as follows:

“While the jurors are the sole judges of credibility, and [plaintiff’s] inconsistent and perhaps exaggerated testimony could have been perceived as an indication of [plaintiff’s] interests of opportunity beyond pain which could dilute their belief in the existence of the occasion itself, the jury is not free to ignore an obvious injury. As our Supreme Court stated in Thompson v. Iannuzzi, 403 Pa. 329, 169 A.2d 777 (1961): ‘It is true that the jury is the final arbiter of facts but it may not, in law, ignore what is patent to the eye, obvious to the mind and clear to the normal process of ordinary computation.’ Id. at 332, 169 A.2d 778-789. Hawley, 611 A.2d at 313.

“As in Hawley, in the present case, the jury’s refusal to believe in the existence of the sprained ankle was unwarranted. While there existed no admission from a defense expert witness that Kruczkowska suffered an injury during the accident, the existence of a sprained ankle was not questioned by Winter during her cross-examination of Kruczkowska and Dr. Gurkaynak. Rather, Winter’s cross-examination of both Kruczkowska and Dr. Gurkaynak revealed only a dispute about the severity of Kruczkowska’s injury and how long and to what extent it impaired her normal activities.

“Although Winters notes Dr. Gurkaynak’s credibility was called into question during cross-examination when she questioned his expertise in the field of orthopedic medicine, such questioning did not call into question whether Kruczkowska suffered any injury. Rather, it only spoke to the doctor’s credentials.” Kruczkowska at 630.

“While a jury may reject any and all evidence presented, it can only do so up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.” Neison, supra. As in Kruczkowska, the jury’s refusal here to believe the plaintiff’s injuries were caused by this accident, was unwarranted. The uncontroverted evidence established that plaintiff’s minivan was struck from behind by a 22,000 pound truck which did not brake prior to impact. The impact caused somewhat significant damage to the rear of the minivan. Plaintiff complained of immediate aching in his neck and in his left shoulder, pain which Mrs. Ipjian confirmed. Dr. Mueller’s examination, made on the day of the accident, indicated plaintiff was tender in his neck and shoulder. His next examination, five days later, revealed plaintiff was suffering from left elbow pain and numbness in two fingers. Dr. Mueller diagnosed plaintiff with cervical strain and left ulnar nerve palsy which typically heal within four to eight weeks. As a result of his injuries, Dr. Mueller restricted plaintiff from work for approximately two months. Almost all of plaintiff’s injuries resolved within a few months of the accident except for some shoulder pain, which Dr. Matlin found to exist some four months after the accident. That pain resolved, however, after physical therapy sessions, although plaintiff complained of a lack of range of motion up to the date of trial. Both treating doctors testified plaintiff’s injuries had been caused by the automobile accident.

While the defendant here, like the defendant in Kruczkowska, did not provide an expert who admitted the plaintiff suffered an injury from the accident, the existence of plaintiff’s cervical sprain and ulnar nerve injury were not questioned by the defendants during their cross-examination. Defendants’ cross of Dr. Mueller focused on the extent of plaintiff’s shoulder injury, noting plaintiff had a new complaint of pain at the back of his shoulder for first time on January 27,2000. (Dr. Mueller dep. at 23.) Dr. Mueller also stated on cross that plaintiff’s cervical strain should have healed in four to eight weeks. (Dr. Mueller dep. at 24.) Defendants also questioned plaintiff’s complaint of lack of range of motion since Dr. Mueller had not tested him prior to the accident and thus had nothing to compare his limitations to. (Dr. Mueller dep. at 30.) Dr. Mueller conceded the range of motion limitation could have pre-existed the accident. (Dr. Mueller dep. at 30.) Importantly, however, Dr. Mueller did not concede any of plaintiff’s other symptoms preexisted the accident. Defendants’ cross of Dr. Matlin also focused on the extent or scope of plaintiff’s injuries. Dr. Matlin agreed that the only injury she was relating to the accident was plaintiff’s left shoulder problem. (Dr. Matlin dep. at 17.) While defendants did raise questions about whether Dr. Matlin had been given an adequate history of plaintiff’s pre-accident neck and/or shoulder injuries, she did not in any way admit she would have altered her conclusion that plaintiff suffered an accident-related shoulder injury. (Dr. Matlin dep. at 19.)

Our ruling is supported by the Supreme Court’s decision in Neison v. Hines, supra. There, the court upheld the trial court’s grant of a new trial where the defendant had admitted liability in causing a rear-end collision, yet the jury awarded no damages. The court concluded, as in this case, that the evidence was uncontroverted that the plaintiff had been involved in a violent automobile accident and had suffered from obvious injuries. Id., 539 Pa. at 522, 653 A.2d at 637. Importantly, the court stated as follows:

“Thus, the uncontroverted medical evidence established that Ms. Neison suffered pain from a known medical source, a cervical sprain, fibromyalgia, and a herniated disk, much like the compression fracture in Hawley. We believe that these injuries are similar in type to the ‘obvious injury’ the Superior Court found in Hawley, and agree with the conclusion of that court that a jury cannot freely ignore evidence of obvious injury.” Id. at 525-26, 653 A.2d at 639. Dr. Mueller’s diagnosis was that the accident caused plaintiff cervical strain and left ulnar nerve palsy. Under Neison, plaintiff’s cervical sprain is an “obvious injury,” as would be his ulnar nerve inflammation, which injuries the jury was not free to ignore.

Defendants contend the evidence of accident-related injury was not uncontroverted. They suggest the evidence of injury was inconsistent and, therefore, it was within the discretion of the jury to reject the unreliable testimony and accept that which was most credible. Specifically, they claim that the jury obviously concluded that the force of the impact was extremely minimal, as testified to by defendant Bender. Furthermore, they contend Drs. Mueller and Matlin’s medical opinions were uninformed and misinformed because the doctors had not been given a complete and accurate medical history by plaintiff and the jury was thus free to disregard their testimony.

Initially, we note that while the accident might not be described as “serious,” it could not be reasonably concluded to have been “extremely minimal,” as it involved an 11-ton truck and relatively extensive damage to plaintiff’s minivan. Regarding defendants’ assertion that plaintiff suffered from pre-existing neck and shoulder injuries, the uncontroverted evidence revealed as follows: on two occasions plaintiff made a single visit to his family doctor complaining of neck pain and stiffness, both of which resolved within one week of his visits. Furthermore, the most recent of his two visits occurred in March 1995, more than four-and-one-half years before the accident in question. No jury could have reasonably connected those minor complaints to the accident in question, given the lengthy time gaps and given that defendants provided no medical testimony to support such a connection. The same is trae with defendants’ attempt to tie plaintiff’s work-related incidents with his accident-related complaints. None of the four incidents resulted in plaintiff seeking medical attention and the most recent occurred in May 1998, more than one-and-one-half years prior to the accident. Without the benefit of medical testimony, it would be unreasonable for a jury to believe plaintiff’s injuries pre-existed the accident. Thus, since the medical testimony was uncontroverted that plaintiff suffered an injury as a result of the accident, the jury’s verdict, finding no legal causation, was so contrary to the evidence as to shock one’s sense of justice such that the award of a new trial is imperative so that right may be given another opportunity to prevail. Thompson v. City of Philadelphia, supra.

ORDER

And now, June 20, 2002 plaintiffs’ post-trial motion, in the nature of a motion for a new trial on the issues of legal causation and damages, is hereby granted.

      . Defendants note in their brief in opposition to the post-trial motion that all claims involving the minor children were settled prior to trial for what defendants claim was a nominal amount.

      . Plaintiff missed a total of 54 scheduled work days, incurring $4,736.18 in unreimbursed lost wages. (N.T. 26; plaintiffs’ exhibits 2, 5.)

      . Plaintiffs were referred to in the plural on the damages section of the verdict form since Mr. Ipjian’s wife sought loss of consortium.

        . The issue of whether an injury is compensable is one which has been explored by our appellate courts in a number of recent decisions, including Majczyk; Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001) and Monschein v. Phifer, 111 A.2d 18 (Pa. Super. 2001). These cases all stand for the proposition that where a defendant is negligent and the negligence causes an injury, the jury may nevertheless refuse to award the plaintiff pain and suffering damages, if it is reasonable for the jury to determine the injury is non-compensable. It is important to note that in this case, the issue of whether plaintiff’s injuries are compensable is not before us since the jury did not reach the issue of damages, as it did in the cases cited above. Thus, plaintiff’s reliance on Monschein and defendants’ reliance on Davis, is misplaced. Had the jury in this case found legal causation but awarded no damages, these cases would have been relevant to our analysis.


source: Caselaw Access Project

author: NEALON, J.,

license: Public Domain

text:
    Gebert v. Kane Freight Lines Inc.

      C.P. of Lackawanna County,
    no. 98-CV-2472.

      Donald J. and Sharon Gebert, pro se.

      Marianne Gilmartin, for defendant.

      June 14, 2002
   NEALON, J.,

Plaintiffs Donald J. Gebert Jr. and Sharon L. Gebert have filed a motion for post-trial relief following a jury verdict in favor of defendant Kane Freight Lines Inc. on March 26,2002. The Geberts contend that the jury should have been declared deadlocked and a mistrial granted since the jurors’ deliberations spanned eight hours over a two-day period. In the alternative, the Geberts challenge the weight and sufficiency of the evidence and seek judgment in their favor or a new trial on all issues. Since the jury never indicated that it was hopelessly deadlocked and instead continued to request and review trial exhibits during its deliberations, the verdict was not the product of coercion or fatigue and a mistrial was not warranted. Furthermore, inasmuch as the jury accepted Kane’s testimony as credible and resolved the conflicting trial evidence in Kane’s favor, the verdict was not so contrary to the weight of the evidence as to shock one’s sense of justice. Additionally, viewing the evidence in a light most favorable to Kane as the verdict winner, the evidence was likewise sufficient to sustain the defense verdict.

I. FACTUAL BACKGROUND

The Geberts commenced this action by the filing of a pro se complaint charging Mr. Gebert’s former employer, Kane, its corporate counsel and vice-president with libel, “retaliation” and wrongful discharge. By memorandum and order dated July 12, 1999, Mr. Gebert’s defamation claim, Mrs. Gebert’s claim for emotional damages and the Gerberts’ demand for punitive damages were dismissed pursuant to Pa.R.C.P. 1028(a)(4). See Gebert v. Granahan, 101 Lacka. Jur. 75 (1999). However, since Mr. Gebert had alleged that he was terminated from his at-will employment as a truck driver with Kane in retaliation for filing an unemployment compensation claim, see Highhouse v. Avery Transportation, 443 Pa. Super. 120, 126, 660 A.2d 1374, 1377-78 (1995) (an at-will employee may recover for wrongful discharge if [s]he is fired for attempting to collect unemployment compensation benefits), we declined to dismiss Mr. Gebert’s retaliatory discharge claim and Mrs. Gebert’s derivative cause of action for loss of consortium. Gebert, 101 Lacka. Jur. at 82-85, 87-88.

On October 20, 1999, the Geberts’ trial counsel entered his appearance and this matter was subsequently certified as ready for trial on December 13, 2001. (See docket entry nos. 63,67.) A jury trial was conducted from March 20,2002, to March 26,2002, at which time testimony was received from the Geberts, Trooper Richard Janesko, Lawrence Catanzaro, Mary Lou Gawrys, Michael Maroni, Sean T. Granahan, Esquire, and William Campbell, and 56 exhibits were introduced into evidence. During the trial, Kane argued that Mr. Gebert had been discharged because of his abusive behavior, profanity-laced tirades, confrontational attitude with co-workers and customers, and violation of company safety policy and maintained that Gebert’s uncontested receipt of unemployment compensation benefits played no role in his termination.

The jurors began their deliberations at 12:25 p.m. on March 25, 2002, and during the next several hours, they periodically requested certain exhibits as they continued to discuss the case. (See transcript of proceedings on 3/ 25/02, pp. 32-54.) At approximately 4:45 p.m., the jury indicated that it had reached an impasse in its deliberations, but did not suggest that it was hopelessly deadlocked. (Id. pp. 60-64.) For that reason, the jury was excused for the day with an instruction to return the following morning to resume deliberations. (Id. pp. 65-67.)

Because of inclement weather and the jury’s request that it be recharged on the elements of a wrongful discharge claim, the jury did not resume deliberations on March 26,2002, until almost 11 a.m. (See T.P. on 3/26/02, pp. 2-19.) During the next three hours, the jurors requested various exhibits on two separate occasions. (Id. pp. 19-32.) Less than 30 minutes after its final request for a trial exhibit, the jury advised the court that it had reached a verdict and was, therefore, returned to the courtroom at 2:42 p.m. so that the verdict could be announced. (Id. p. 32.) In response to special verdict interrogatories, the jury found that Mr. Gebert had not been discharged by Kane in retaliation for filing an unemployment compensation claim and thereby returned a verdict in favor of Kane. (Id. pp. 33-37.)

On April 2,2002, the Geberts filed a pro se motion for post-trial relief pursuant to Pa.R.C.P. 227.1. (See docket entry no. 73.) Although Pa.R.C.P. 227.1(f) required the Geberts to serve their post-trial motion promptly upon the trial judge, they neglected to do so until April 24, 2002. The Geberts likewise failed to comply with Pa.R.C.P. 227.3 and Lacka. Cty. R.C.P. 263 by designating those portions of the trial record which needed to be transcribed and by furnishing the court reporter with a down payment for the transcript. Consequently, by order dated April 25, 2002, the Geberts were directed to serve a transcript request upon the stenographer within five days and to make the appropriate payment as required by Local Rule 263. (Id. no. 75.) In addition, since Pa.R.C.P. 224(l)(b) entitles the non-moving party to enter judgment on the verdict if the trial judge fails to decide the post-trial motion within 120 days of its filing, see e.g. Marsico v. DiBileo, 796 A.2d 997, 999 (Pa. Super. 2002), the Geberts were ordered to file their supporting brief by no later than May 13, 2002, with Kane’s brief being due on June 3, 2002, and oral argument being conducted on June 13, 2002. (Id. p. 3.)

The Geberts never requested transcription of the trial record in accordance with Pa.R.C.P. 227.3, nor did they file a supporting brief by May 13, 2002. On May 31, 2002, Kane filed a motion to dismsiss the Geberts’ motion for post-trial relief for failure to comply with the order of April 25, 2002. (See docket entry no. 78.) The Geberts did not file an answer to Kane’s motion to dismiss and subsequently failed to even appear for the scheduled oral argument on June 13, 2002. (See T.P. on 6/13/ 02, pp. 4-6.)

In their post-trial motion, the Geberts seek a new trial on the grounds that the jury should have been declared deadlocked and a mistrial granted due to the length of the jurors’ deliberations. (See plaintiffs’ motion for post-trial relief, ¶¶1-2.) The Geberts also challenge the weight and sufficiency of the evidence and request judgment in their favor or a new trial on all issues. (Id. ¶¶3-21.) In that regard, the Geberts contend that “[t]here was definitely a conflict of evidence on the material fact(s) surrounding the wrongful discharge/retaliatory discharge,” “that a majority of the jury has erred in assessing credibility of [Kane’s] witnesses and documentary evidence” and that “[t]he verdict is conjectural, as it is based solely on oral testimony of [Kane’s] witnesses and in direct conflict to the documents that were admitted into evidence.” (Id. ¶¶7, 14, 18.) Kane denies the Geberts’ allegations and further asserts that it cannot intelligently respond to the Geberts’ arguments since they failed to comply with Pa.R.C.P. 227.1(b)(2) by adequately specifying their grounds for post-trial relief and Pa.R.C.P. 227.3 by requesting transcription of the relevant record. Although we agree that the Geberts’ violation of those rules hinders our ability to decide the instant motion, we will nevertheless address the merits of the Geberts’ contentions.

II. DISCUSSION

(A) Denial of Mistrial

The Geberts assert that a mistrial should have been declared since the jury had deliberated for more than eight hours over a two-day period prior to reaching a verdict. In a civil case, the question of how long a jury may deliberate when it is experiencing difficulty in reaching an agreement is a matter within the sound discretion of the trial judge. See Feldman, Pennsylvania Trial Guide §13.9 at 558 (2d Rev. Ed.). A trial judge’s refusal to terminate jury deliberations by declaring a mistrial “will not be disturbed absent an abuse of discretion or evidence that the verdict was the product of coercion or an overworked or fatigued jury.” Commonwealth v. Johnson, 542 Pa. 384, 407, 668 A.2d 97, 108 (1995).

The trial court is not obligated to grant a mistrial merely because of the duration of the jury’s deliberations, particularly where the jury does not affirmatively indicate that further deliberations will be futile. Commonwealth v. Jones, 340 Pa. Super. 448, 452, 490 A.2d 863, 866 (1985) (court did not abuse its discretion in allowing jury to deliberate for 12 hours over two days). The Pennsylvania appellate courts have cautioned that “[t]he length of time a jury has deliberated on a case is not the sole criteria for determining whether it is hopelessly deadlocked” and that “the primary element in judging whether a jury is really deadlocked is the firmness of its communication to the court that it is deadlocked and the judge’s belief that such is the case.” Commonwealth v. Hoover, 314 Pa. Super. 158, 161, 460 A.2d 814, 816 (1983). See also, Johnson, 542 Pa. at 408, 668 A.2d at 108-109 (mistrial was not warranted since jury had simply informed the court “that it was presently deadlocked” but “did not indicate that it was hopelessly deadlocked . . . (emphasis in original)

In the case at hand, the jury deliberated for approximately four hours and 20 minutes before being excused on March 25, 2002. Toward the end of that day, the jury was provided with a “verdict-urging instruction” comparable to that which was approved in Hickman v. Fruehauf Corp., 386 Pa. Super. 455, 458, 563 A.2d 155, 156-57 (1989), appeal denied, 528 Pa. 611, 596 A.2d 158 (1991). Including the time which would have been devoted to eating their lunch, the jurors deliberated an additional three hours and 47 minutes on March 26,2002 before their verdict was announced. At no time prior to reaching a verdict did the jury ever intimate that it was hopelessly deadlocked, and to the contrary, signified that it was making progress as it continued to request and review many of the 56 exhibits which were introduced into evidence during the four days of testimony.

In short, there is no indication in the scant record that the jury verdict was the product of coercion or fatigue. See Johnson, supra. Nor is there a scintilla of evidence that the jurors were otherwise influenced by corrupt motives in reaching a verdict. See Johnson v. Frazier, 787 A.2d 433, 436 (Pa. Super. 2001) (“Even if affected by the hour of the day, ‘ [t]he motive, if not corrupt, which induces jurors to acquiesce in a verdict is immaterial.’ ”). Ergo, the Geberts have not established that it was an abuse of discretion to deny their motion for a mistrial.

(B) Weight and Sufficiency of Evidence

The Geberts also challenge the weight and sufficiency of the evidence, albeit without submitting a trial transcript for our review. A litigant may secure a new trial on the basis that the jury’s verdict was against the weight of the evidence only if the verdict was so contrary to the undisputed evidence as to shock one’s sense of justice. Davis v. Mullen, 565 Pa. 386, 390, 773 A.2d 764, 766 (2001); Rasieleski v. Connor, 103 Lacka. Jur. 225, 227 (2002). To that end, the verdict must be so shocking as “to make the award of a new trial imperative, so that right may be given another opportunity to prevail.” Vattimo v. Eaborn Truck Service Inc., 777 A.2d 1163, 1165 (Pa. Super. 2001), appeal denied, 568 Pa. 687, 796 A.2d 319 (2002). Thus, to warrant the grant of a new trial, the evidence supporting the verdict must be “so inherently improbable or at variance with admitted or proven facts or with ordinary experience as to render the verdict shocking to the court’s sense of justice.” Rittenhouse v. Hanks, 777 A.2d 1113, 1119 (Pa. Super. 2001).

A party “is not entitled to a new trial where the evidence is conflicting and the finder of fact could have decided either way.” Fanning v. Davne, 795 A.2d 388, 393 (Pa. Super. 2002). Nor should a new trial be granted simply because the trial judge, on the same facts, would have arrived at a different conclusion. Davis, supra; Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002). Rather, it is axiomatic that questions of credibility are to be decided by the jury, which “is entitled to believe all, part, or none of the evidence presented.” Pioneer Com mercial Funding Corp. v. American Financial Mortgage Corp., 797 A.2d 269, 279 (Pa. Super. 2002); Majczyk v. Oesch, 789 A.2d 717, 725-26 (Pa. Super. 2001).

A weight of the evidence challenge concedes that there was sufficient evidence to sustain the verdict, but asserts that the verdict was against the weight of the evidence. Fanning, supra. Conversely, when reviewing the sufficiency of the evidence, the court “must determine whether the evidence and all reasonable inferences therefrom, viewed in the light most favorable to the verdict winner, was sufficient to enable the fact-finder to find against the losing party.” Zeffiro v. Gillen, 788 A.2d 1009, 1013 (Pa. Super. 2001). Consequently, “Judgement n.o.v. may be entered if, after considering only the evidence supporting the verdict and giving the verdict winner the benefit of the doubt, the trial court clearly finds that the movant is entitled to judgment as a matter of law, and the evidence presented at trial was such that no two reasonable minds could disagree that the verdict should be in favor of the movant.” Pioneer Commercial Funding Corp., supra, 797 A.2d at 279.

The testimony and exhibits introduced at trial reflected that Mr. Gebert was suspended by Kane without pay from April 2,1997 to April 4,1997, after he had been involved in an accident on Route 81 on April 1, 1997, when he rear-ended another vehicle. Gebert returned to work on April 5, 1997, and remained employed with Kane until he was terminated on June 25,1997. In the interim, Gebert had filed a claim for unemployment compensation benefits which Kane originally opposed, but thereafter withdrew its objection and allowed Gebert to seek unemployment compensation benefits.

Gebert argued that his discharge on June 25, 1997, was in retaliation for filing an unemployment compensation claim. However, Kane countered through supporting testimony and evidence that Gebert had been fired since he had become openly hostile toward his supervisors and fellow employees, had engaged in vulgar outbursts and fits of rage in the presence of Kane customers, and had operated Kane trucks so recklessly that Kane had received complaints from police and other motorists. Kane submitted that Mr. Gebert’s application for unemployment compensation benefits did not influence its decision to discharge him, as was evidenced by the fact that Kane did not oppose Mr. Gebert’s application for and receipt of unemployment compensation benefits after he was terminated on June 25, 1997.

Even the Geberts concede in their post-trial motion that there was “a conflict of evidence on the material fact(s) surrounding the wrongful discharge/retaliatory discharge” of Mr. Gebert. As was their prerogative, the jurors found Kane’s witnesses to be credible and rejected the contrary account proffered by Gebert. Since a party is not entitled to a new trial due to a mere conflict in the testimony, see Fischer v. Troiano, 768 A.2d 1126, 1129 (Pa. Super. 2001), the Geberts have not established that the verdict was so contrary to the overwhelming weight of the evidence as to shock one’s sense of justice. Similarly, viewing the evidence in a light most favorable to Kane as the verdict winner, the evidence was sufficient to enable the jury to find against the Geberts such that they have likewise failed to demonstrate their entitlement to judgment as a matter of law. An appropriate order will follow.

ORDER

And now, June 14, 2002, upon consideration of the plaintiffs’ “motion for post-trial relief pursuant to Pa.R.C.R 227.1 et seq.,” the defendant’s response thereto, and the oral argument of counsel for defendant on June 13, 2002, it is hereby ordered and decreed that:

(1) Plaintiffs’ motion for a new trial pursuant to Pa.R.C.P. 227.1(a)(1) is denied;

(2) Plaintiffs’ motion for the entry of judgment in their favor under Pa.R.C.P. 227.1(a)(2) is denied;

(3) Defendant’s motion to dismiss plaintiffs’ motion for post-trial relief is dismissed as moot; and

(4) Judgment is entered in favor of the defendant and against the plaintiffs on all claims asserted in this action.

      . Lacka. Cty. R.C.P. 227.1(b) obligates a party who has filed a post-trial motion to serve the trial judge with a copy “prior to or immediately after the time the document is filed in the office of the clerk of judicial records.” Hence, the Geberts’ motion should have been provided to the court on April 2, 2002.

      . It is unclear whether the Geberts’ post-trial motion could be dismissed based upon their failure to request and pay for the transcript and to file a supporting brief. Compare Summers v. Giant Food Stores Inc., 37 D.&C.4th 70, 74-75 (Dauph. Cty. 1997) (ordering movant to pay court reporter for entire transcript or suffer dismissal of post-trial motions); Bannister v. Owens-Corning Fiberglas, 32 Phila. 262, 264 (1995) (dismissing plaintiffs’ post-trial motion for failure to pay court reporter for cost of transcript) with Schulz v. Celotex Corp., 447 Pa. Super. 391, 392-93, 669 A.2d 404, 405 (1996) (dismissal of post-trial motions for failure to file brief within time required by local rule was prohibited under Pa. R.C.P. 239(f)); Davison v. John W. Harper Inc., 342 Pa. Super. 560, 566, 493 A.2d 732, 735-36 (1985) (trial court’s summary dismissal of post-trial motions was improper even though the movant did not comply with local rule requiring transcription of trial record since non-moving party had not demonstrated overt prejudice and trial court was not deprived of meaningful opportunity to weigh and decide merits of motions).


author: SCHMEHL, J.L., J.,

text:
    Commonwealth v. Keller

      June 6, 2002
    C.P. of Berks County,
    no. 5189/01.

      Adam Levin, assistant district attorney, for plaintiff.

      David R. Eshelman, for defendant.
   SCHMEHL, J.L., J.,

The defendant has been charged with two counts of driving under the influence of alcohol, 75 Pa.C.S. §3731(a)(l) and 75 Pa.C.S. §3731(a)(4)(i), driving on roadways laned for traffic (summary), 75 Pa.C.S. §3309(1), careless driving (summary), 75 Pa.C.S. §3714, restraint systems (summary), 75 Pa.C.S. §4581(a)(2), and driving vehicle at safe speed (summary), 75 Pa.C.S. §3361. The defendant was originally charged with the above offenses by way of a complaint dated February 6,2001. A preliminary hearing was held on May 16, 2001, before District Justice Ronald C. Mest and all of the misdemeanor charges were dismissed. The Commonwealth subsequently withdrew all of the summary charges.

The affiant filed a second identical complaint on May 30, 2001. The preliminary hearing was held on October 3,2001 before District Justice Ronald C. Mest. This time, all of the charges were bound over to the court of common pleas. Following arraignment on October 29,2001, the defendant filed an omnibus pretrial motion on November 26, 2001, requesting a motion to suppress, a motion to quash information, and a motion for a writ of habeas corpus.

A pretrial hearing was held before this court on December 18, 2001. On February 13, 2002, this court issued findings of fact and conclusions of law, granting defendant’s motion to suppress, but only as to blood test results and granting defendant’s motion for a writ of habeas corpus as to Count 2 of the information.

This appeal followed. Pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, this court requested and received a concise statement of matters complained of on appeal. The Commonwealth alleges in its two claims for relief that the trial court erred in granting the defendant’s motion to suppress evidence because the arresting officer was authorized to obtain the blood alcohol test results without a warrant pursuant to 75 Pa.C.S. §§1547 and 3533. The Commonwealth also alleges that the trial court erred in granting the defendant’s habeas corpus relief, since the Commonwealth presented a prima facie case with respect to all charges of the information.

This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure and for the following reasons this court requests that this instant appeal be denied.

THE COURT DID NOT ERR IN GRANTING DEFENDANT’S PRETRIAL MOTION TO SUPPRESS EVIDENCE

The standard of review for a grant of a suppression motion is as follows:

“We begin by noting that 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. Pa.R.C.P. 323(h). See Commonwealth v. Iannaccio, 505 Pa. 414,480 A.2d 966 (1984), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985). In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. Commonwealth v. Monarch, 510 Pa. 138, 147, 507 A.2d 74, 78 (1986). If so, we are bound by those findings. Commonwealth v. James, 506 Pa. 526, 533, 486 A.2d 376, 379 (1985). Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. James, 506 Pa. at 532-33, 486 A.2d at 379; Commonwealth v. Hamlin, 503 Pa. 210, 216, 469 A.2d 137, 139 (1983). Commonwealth v. DeWitt, 530 Pa. 299, 301-302, 608 A.2d 1030, 1031 (1992). (footnote omitted)” Commonwealth, v. Pitts, 740 A.2d 726, 729 (Pa. Super. 1999).

“If there is sufficient evidence of record to support the suppression court’s ruling and that court has not misapplied the law, then we will not disturb the court’s decision, particularly with respect to credibility determinations.” Commonwealth v. Korenkiewicz, 743 A.2d 958 (Pa. Super. 1999) (citing Commonwealth v. Queen, 536 Pa. 315, 639 A.2d 443 (1994)).

The factual findings as stated in the suppression court’s findings of fact are as follows:

“On January 31, 2001 at approximately 12:50 a.m., an accident came to the attention of Joseph Lowe. Mr. Lowe lives at 3900 Pricetown Road, Ruscambanor Township, Berks County, Pennsylvania. He immediately dialed 9-1-1 and the police came within 10-15 minutes.

“Trooper Nicholas Scianna of the Pennsylvania State Police was dispatched to the accident scene. Trooper Scianna arrived on the scene at approximately 1:03 a.m. He observed a vehicle with heavy front-end damage. Corporal Shell, also of the Pennsylvania State Police, was already on the scene.

“Trooper Scianna spoke to the operator of the vehicle who told him that a deer had jumped in front of the car as he was returning from a friend’s house. The driver of this vehicle was identified as the defendant, Robert Keller. The defendant’s car was off the road in a grass embankment in contact with a tree. The road was wet that evening. While speaking to the defendant, the trooper detected an odor of an alcoholic beverage emanating from his breath, as well as glassy, bloodshot eyes. He also observed that the driver was bleeding profusely from his face. The trooper informed the defendant that he was going to be arrested for driving under the influence of alcohol.

“The defendant was then put into an ambulance. The ambulance began to drive away. The trooper stopped the ambulance, went inside the back of the ambulance, and began reading the defendant O’Connell warnings. Trooper Scianna was unable to remember what defendant’s response was to these warnings.

“The ambulance transported the defendant to Lehigh Valley Hospital. Corporal Shell then called the state police headquarters and told them that he wanted to get blood-alcohol test results from the defendant. Trooper DeBellis of the Pennsylvania State Police received a teletype to have the defendant’s blood drawn at Lehigh Valley Hospital. Trooper DeBellis proceeded to Lehigh Valley Hospital and filled out a toxicology request form. See Commonwealth exhibit 1. Subsequently, Lehigh Valley Hospital mailed a report of the blood test results to the state police. This report indicated a BAC of 0.28 percent. No search warrant or court order was obtained to require the release of the medical records and no probable cause to justify the production of records was established before an independent judicial officer.”[]

Section 3755(a) of the Vehicle Code provides as follows:

“(a) General rule. — If, as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) was involved, the emergency room physician or his designee shall promptly take blood samples from those persons and transmit them within 24 hours for testing to the Department of Health or a clinical laboratory licensed and approved by the Department of Health and specifically designated for this purpose. This section shall be applicable to all injured occupants who were capable of motor vehicle operation if the operator or person in actual physical control of the movement of the motor vehicle cannot be determined. Test results shall be released upon request of the person tested, his attorney, his physician or governmental officials or agencies.” 75 Pa.C.S. §3755.

At the suppression hearing, the defendant referenced Commonwealth v. Shaw, 564 Pa. 617, 770 A.2d 295 (2001). In Shaw, the Supreme Court held that a violation of Article 1, Section 8 of the Pennsylvania Constitution occurs when the results of a B AC test taken for independent medical purposes and not pursuant to section 3755(a) and without a warrant, are released to the police. Id. at 624, 770 A.2d at 299.

The Commonwealth argued that Shaw is factually distinguishable from the instant case because the officer in Shaw initially telephoned the hospital for the BAC results. Shaw at 620, 770 A.2d at 297. In this phone conversation, the officer learned the results were above 0.10 percent, so the officer subsequently obtained formal written results through a subpoena. Id. No subpoena was issued in the instant case nor did the state police telephone the hospital to learn the results.

The Commonwealth also argues that the results should not be suppressed because Trooper Scianna, Corporal Shell, and Trooper DeBellis did not know that the hospital had already drawn blood for independent medical purposes. It is not relevant whether the state police knew, should have known, or should have asked hospital officials if the defendant’s blood had been previously drawn for independent medical purposes. These questions are not central to the holding in Shaw. Instead, the fundamental question is: (1) Did the state police follow the procedures set forth under section 3755? Next, (2) If the form was properly submitted to hospital personnel, was it necessary for the state police to apply for a search warrant?

Trooper Scianna, Corporal Shell, and Trooper DeBellis acted pursuant to section 3755. Trooper Scianna knew the defendant had been the driver of a vehicle involved in a one-car accident. While speaking to the defendant, he detected bloodshot, glassy eyes and an odor of an alcoholic beverage emanating from his person. Clearly, this information gave the trooper probable cause to believe that the defendant had been driving under the influence of alcohol to a degree that rendered him incapable of safe driving. See Commonwealth v. Simon, 440 Pa. Super. 428, 655 A.2d 1024 (1995) (The Superior Court has repeatedly upheld probable cause to conduct a blood alcohol test under subsection (a)(1) of the implied consent statute where the defendant “has looked and smelled like he has consumed alcohol and a serious one-car or head-on accident has occurred.” Commonwealth v. Smith, 382 Pa. Super. 288, 297, 555 A.2d 185, 189 (1989), allocatur denied, 524 Pa. 607, 569 A.2d 1366 (1989)). Therefore, by filling out Lehigh Valley toxicology form, Trooper DeBellis followed the procedures set forth under 3755.

Next, we must consider whether case law mandates that the police obtain a search warrant after lawfully requesting that blood be drawn and tested.

Quoting the concurrence in Commonwealth v. Riedel, 539 Pa. 172, 187, 651 A.2d 135, 141 (1994), the majority in Shaw stated:

“The implied consent provision of 75 Pa.C.S. § 1547(a)(1) does not eliminate the need to obtain a warrant to seize medical records, but only to request and conduct chemical tests. The reason for this is obvious. Due to the evanescent nature of the evidence of blood alcohol content, there is an immediate need to obtain samples of blood for testing. When blood samples have been drawn for medical purposes and the results of blood alcohol content tests are part of a patient’s medical record, the evidence will not have dissipated during the time that application for a search warrant is being made.” Shaw at 624, 770 A. 2d at 299. (emphasis added)

By citing this passage and analogizing 75 Pa.C.S. § 1547(a)(1) to 75 Pa.C.S. §3755, the majority in Shaw believed that a warrant is required prior to the police obtaining the results of a B AC test where the suspect is unable to respond to the standard O’Connell warnings. Indeed, Justice Castille opens his dissenting opinion by stating that, “[t]he majority would hold that Article I, Section 8 of the Pennsylvania Constitution commands ... that the results of a medical purposes blood alcohol content test performed by a hospital on a Pennsylvania driver... cannot simply be requested by police unless or until they first secure a search warrant.” Shaw at 625, 770 A.2d at 301.

There is no evidence that defendant consented to the blood alcohol test result being released because Trooper Scianna could not remember and did not testify to what the defendant’s response was to the O’Connell warnings. Additionally, the trooper did not witness the blood drawn after they requested the testing.

Under these circumstances, this court felt constrained to follow Shaw, supra. The Commonwealth seems to be arguing that the implied consent provisions of the Vehicle Code gives the Commonwealth an unlimited right to receive blood test results. Unfortunately, this is not the state of the law in Pennsylvania. When seizing medical records, according to Shaw, a warrant is necessary. Accordingly, this court did not err in suppressing the blood test results and the instant appeal should be denied.

      . Section 3533 of the Vehicle Code does not exist. This court believes that the Commonwealth meant to reference section 3755.

      . See the court’s findings of fact and conclusions of law in disposition of the defendant’s omnibus pretrial motion.


author: GARDNER, P.J.,

text:
    Bosco v. Joseph

      September 6, 2000
    C.P. of Lehigh County,
    no. 1998-C-3052.

      Dennis J. Gruenke, for plaintiff.

      Kevin J. Maginnis, for defendant.
   GARDNER, P.J.,

This matter is before the court on the motion for summary judgment of defendant Daniel Joseph, filed February 29,2000. Upon conclusion of oral argument, in open court, on the record, and in the presence of counsel for the parties, we dictated the within bench opinion.

Based upon the record, including depositions, pleadings, admissions and agreements of counsel at closing argument, the pertinent facts are as follows:

This is an action for personal injury, brought by plaintiff Bonne Bosco, who was a residential tenant in a building owned by defendant Daniel Joseph, at 618 North Nineteenth Street in Allentown, Lehigh County, Pennsylvania. Plaintiff resided on the second floor of the building.

Defendant landlord lived approximately three miles from the building. However, he maintained a real estate office on the first floor of the building. Certain common areas shared by landlord and tenant included a front porch and eight steps separated by a small landing between the top four and bottom four steps.

Between 9 and 9:15 o’clock a.m. on the morning of January 2, 1997, plaintiff was exiting the building and descending the stairs from the front porch to the front sidewalk. As plaintiff descended the first step, she slipped and fell on an accumulation of one one-hundredths of an inch of smooth ice which resulted from a freezing rain which fell during the late evening hours of January 1 and the early morning hours of January 2,1997. She fell down the next two steps and landed on the small landing. The ice was very thin and uniform and there was no snow.

Generally slippery conditions existed in the Allentown area during the morning of January 2, 1997.

As the result of her fall, plaintiff sustained personal injuries for which she seeks to recover damages in this lawsuit.

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. Smitley v. Holiday Rambler Corp., 707 A.2d 520, 525 (Pa. Super. 1998). The burden rests squarely on the moving party to prove that no genuine issue of material fact exists. Id. However, an adverse party is required to identify in the response to the summary judgment motion “evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having produced.” Eddy v. Hamaty, 694 A.2d 639, 643 (Pa. Super. 1997) citing Pa.R.C.P. 1035.3.

In reviewing a motion for summary judgment, the record is examined in the light most favorable to the non-moving party. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). Moreover, summary judgment should be granted only in cases that are free and clear from doubt. Hoffman v. Brandywine Hospital, 443 Pa. Super. 245, 250, 661 A.2d 397, 399 (1995).

Defendant contends that he is entitled to summary judgment under the hills and ridges doctrine. This doctrine discussed in more detail below, provides that unless the snow or ice had accumulated in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians, the property owner has no duty to remove the ice or snow.

Plaintiff contends that the hills and ridges doctrine does not apply to a landlord-tenant case under the law of Pennsylvania. Rather, plaintiff contends that defendant is subject to a higher standard of care under Restatement (Second) of Torts §360 (discussed in detail below). Plaintiff contends that this is so because under section 360 the landlord is liable for any physical injury a tenant has suffered as a result of a dangerous condition on the landlord’s property, if the landlord knew or should have known about the condition in time to fix it.

According to plaintiff, this higher standard replaces and removes from this case the hills and ridges doctrine and defense, which is not available to a landlord. Accordingly, a landlord, unlike another type of owner, may be liable to a tenant who slips and falls on slick ice, although there are no hills and ridges present, even though defendant may not be liable to others under the hills and ridges doctrine.

We agree with plaintiff that section 360 of the Restatement obligates the landlord to a higher standard of care and that the hills and ridges doctrine is not available to the landlord as a defense where tenant is injured by falling on slick ice on the common areas of the landlord’s property.

Section 360 of the Restatement (Second) of Torts provides as follows:

“Section 360. Parts of Land Retained in Lessor’s Control which Lessee is Entitled to Use

“(A) A possessor of land who leases a part thereof and retains in his control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon the part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.”

Under this section a landlord is liable for any physical harm caused to a tenant by a dangerous condition upon that part of the land retained in the landlord’s control if the landlord, by the exercise of reasonable care, could have discovered the condition and could have made the condition safe.

Accordingly, if the landlord knew or should have known that a film of slick ice was present on the steps and that it created a dangerous condition, and the landlord had sufficient time to make the condition safe (for example, by removing the ice or salting the steps), the landlord is liable to the tenant for any injuries she sustained in falling down the steps, despite the fact that there were no hills and ridges on the steps.

Section 360 of the Restatement (Second) of Torts was adopted as the law of Pennsylvania in Leary v. Lawrence Sales Corporation, 442 Pa. 389, 275 A.2d 32 (1971) and in other cases cited in plaintiff’s brief.

In their briefs and at oral argument, counsel each contended that this issue was one of first impression in the Commonwealth and neither party cited any Pennsylvania trial or appellate cases discussing whether the hills and ridges doctrine applies to a landlord-tenant situation.

Defendant cites Morin v. Traveler’s Rest Motel Inc., 704 A.2d 1085 (Pa. Super. 1997) for the proposition that the hills and ridges doctrine is applicable to a motel guest who was injured when she slipped on ice which had accumulated in the parking lot as a result of freezing precipitation. Moreover, in Wentz v. Pennswood Apartments, 359 Pa. Super. 1, 518 A.2d 314 (1986), the hills and ridges doctrine was applied to a business invitee who sustained a fall on ice in a restaurant parking lot. However, neither counsel cited any appellate cases involving application of the hills and ridges doctrine to a landlord and tenant case, nor is the court aware of any.

However, the matter was addressed by the Court of Common Pleas of Philadelphia in Giletti v. Jamouneau, (Philadelphia Court of Common Pleas December term 1994, no. 840, May 12, 1999, Halbert, J.). There Judge Halbert ruled that the hills and ridges doctrine did not apply to a landlord-tenant situation. The reason, in part, was that Restatement section 360 was deemed to apply in Bleam v. Gateway Professional Center Associates, 431 Pa. Super. 145, 636 A.2d 172 (1993) after a tenant in a commercial rental sustained injuries as the result of a slip and fall on a snow or ice patch. The trial court’s entry of summary judgment in Bleam was reversed by the Superior Court of Pennsylvania, which held that the standard articulated under section 360 took precedence over the more general provisions concerning invitees.

In Giletti, Judge Halbert ruled that an inference can be drawn based upon Bleam that Pennsylvania subscribes to the “Connecticut rule” otherwise referred to as the “modem rule” wherein a duty is imposed upon landlords to remove snow and ice which naturally falls and accumulates from the common areas of the property. By contrast, the “Connecticut rule,” or majority rale is distinguished from the countervailing “Massachusetts rule,” which holds that no such duty exists.

Accordingly, Judge Halbert holds that an inference can be drawn based upon Bleam that Pennsylvania subscribed to the “Connecticut rule,” formulating an exception to the hills and ridges doctrine in the landlord-tenant context. As stated by Judge Halbert, “No valid grounds for barring recovery under the ‘hills and ridges’ doctrine can be advanced if the doctrine is deemed inapplicable in the landlord-tenant context.” We find the reasoning and analysis of Judge Halbert persuasive.

In the instant case, defense counsel conceded at oral argument (for purposes of this summary judgment motion only) that defendant had actual or constructive notice of the icy condition of the steps. Accordingly, defendant conceded that if the hills and ridges doctrine does not apply, then this case must go to a jury.

In addition, defendant owes plaintiff a higher duty than under the hills and ridges doctrine because defendant was a landlord in possession of the leased premises. A landlord out of possession is normally not liable for defective conditions on his property unless he knew or should have known of the condition. Bleam, 431 Pa. Super. at 150, 636 A.2d at 174.

However, in the within case, defendant is a landlord in possession. He occupies the first floor of the real estate leased to the defendant for his part-time real estate office. Therefore, defendant owes plaintiff a higher duty than that which would be owed by a landlord out of possession.

The basic elements of a cause of action in negligence are the existence of a duty, breach of that duty, a causal relationship between the breach and the injury complained of and actual loss or damage. Ney v. Axelrod, 723 A.2d 719, 721 (Pa. Super. 1999). Although these basic principles apply in landlord-tenant disputes, the duty of care imposed upon landlords varies depending on who claims to have been injured and the terms of the lease. For example, a landlord who rents an entire building to a tenant may be held to a lower standard of care than a landlord who rents part of a building and maintains control over the remaining parts. Compare Restatement (Second) of Torts §358 with Restatement section 361; Keck v. Doughman, 392 Pa. Super. 127, 131-32, 572 A.2d 721, 727 (1990).

Even if the hills and ridges doctrine applies to a landlord and tenant case, there are disputes on material issues of fact present in the within matter which would render summary judgment appropriate.

Under the hills and ridges doctrine, in order to recover for a fall on an ice or snow covered sidewalk or walkway, a plaintiff must prove (1) that snow or ice had accumulated on the sidewalk or walkway in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; and (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Rinaldi v. Levine, 406 Pa. 74, 78-79, 176 A.2d 623, 625-26 (1962); Wentz, 359 Pa. Super. at 5, 518 A.2d at 316.

The doctrine of hills and ridges provides that an owner or occupier of land is not liable for general slippery conditions, for to require that one’s walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions in this hemisphere. Snow and ice upon a pavement create merely transient danger and the only duty upon the property owner is to act within a reasonable time after notice to remove it when it is in a dangerous condition. Harmotta v. Bender, 411 Pa. Super. 371, 379, 601 A.2d 837, 841 (1992).

Accordingly, even if the hills and ridges defense applies, there are questions of material fact which require resolution by a jury, thus rendering summary judgment inappropriate. These questions include whether or not the condition on the steps was dangerous. Even if it is determined that a film of slippery ice on a stairway is dangerous as a matter of law, a material issue of fact nevertheless remains concerning whether or not the defendant owner acted within a reasonable time to remove it.

In her deposition, plaintiff testified that defendant told her that he was in fact present at the property at 8 a.m. on the date of the accident, January 2,1997. She also testified that the accident occurred at approximately 9:15 o’clock a.m. (See defendant’s exhibit D, pp. 20-23 and defendant’s exhibit G, pp. 15-16.) According to plaintiff, the defendant choose not to clean up the ice because the ice “usually melts by noon.” (See defendant’s exhibit D, pp. 69-70.)

Defendant recalled that freezing rain was coming down and that the ice had melted by midday. (See defendant’s exhibit G, pp. 21-23.) Nevertheless, defendant did not salt the pavement or steps, no one from his business salted the pavement or steps, nor did anyone from his family salt the pavement or steps. (See defendant’s exhibit G, pp. 23-24.) Accordingly, an issue of fact is raised concerning whether or not defendant acted within a reasonable period of time to remove the ice. This dispute must be resolved by a jury even if the hills and ridges doctrine applies to this case. Therefore, summary judgment is inappropriate.

Finally, defendant landlord may have assumed a duty greater than that provided under the hills and ridges doctrine by agreeing to certain conditions in the lease for this premise. See Keck v. Doughman, supra.

The lease in this case was dated December 10, 1996 and is attached as exhibit Joseph 2 to the deposition transcript of Daniel Joseph dated January 7,2000. Paragraph 11 of the lease provides, “(11) Utilities and Services (A) Landlord will pay for . . . snow removal. . . .” In addition, paragraph 17 of the lease provides,” (17) Landlord Will Maintain Property (A) Landlord will keep the property and common areas in reasonable condition and as required by law. (B) Landlord will keep all structural parts of the property in good working order, including steps....” These duties, assumed by the landlord in the lease, require him to keep the steps of the property in reasonable condition and in good working order and to pay for snow removal. An issue of fact is thereby raised concerning whether or not the defendant landlord has complied with these contractual duties. These disputes must, as well, be resolved by the jury. And therefore summary judgment is inappropriate.

For all the foregoing reasons, we deny defendant’s motion for summary judgment.

ORDER

Now, September 6, 2000, upon consideration of the motion for summary judgment of defendant Daniel Joseph, filed February 29, 2000; upon consideration of plaintiff’s response to defendant’s motion for summary judgment, filed March 14, 2000; upon consideration of the briefs of the parties; after oral argument held this date; and for the reasons expressed in the accompanying bench opinion, it is ordered that the motion for summary judgment is denied.