author: LEWIS, P.J.,

text:
    Wetzel v. Shaffer

      David J. Foster, Catherine M. Mahady-Smith, and Steve R. Pederson, for plaintiffs.

      Andrew H. Foulkrod, for defendant.

      October 18, 2005
   LEWIS, P.J.,

Presently before this court is plaintiffs’ post-trial motion in the nature of a request for new trial as to the following issues: did this court properly allow the presentation of the “two schools of thought” doctrine to the jury; whether defendants failed to prove the elements necessary for the “two schools of thought” defense; and whether this court erred in denying plaintiffs’ Frye motion and in permitting the testimony of the sole defense expert Dr. Levin. The facts and procedural history of the case are as follows:

In July of 1996, Kay Perkins (decedent), a 53-year-old female with long-standing mitral valve stenosis, was referred to Carolyn Shaffer M.D., a cardiothoracic surgeon with Shaffer Cardiovascular Associates, by her family physician, Dr. James Bower. Dr. Shaffer admitted the decedent to the Polyclinic Hospital on or about July 8, 1996, and, after determining the results from a cardiac catheterization, performed heart surgery on the decedent and inserted a prosthetic St. Jude valve into decedent’s heart.

Following her release, the decedent became ill and was readmitted to Polyclinic on or about July 31, 1996, by Dr. Arif Shaik. The decedent was demonstrating signs of hemolysis, which severely compromised the ability of her blood to provide sufficient oxygen to her tissues and organs. An echocardiogram (EKG) was performed which demonstrated perivalvular/paravalvular leaks, however, the cause of the hemolysis was not identified. A blood transfusion was performed in order to attempt to revive the decedent’s red blood cells. The decedent was stabilized and sent home approximately a week later.

On August 9, approximately two days after the decedent had been released, Dr. Shaik once again readmitted her to the hospital with symptoms of acute nausea and vomiting, as well as fallen hemoglobin levels and unabated massive hemolysis. Another EKG was performed, and again the presence of continued perivalvular/ paravalvular leaks of the mitral valve prosthesis was revealed. After consultation, the decision was made by the cardiothoracic surgeons who were involved and familiar with the case to perform steroid therapy on the decedent and allow a six- to eight-week period of endothelialization while conservatively monitoring the decedent. Toward the end of August, the decedent’s condition had further deteriorated. Dr. Shaffer recognized that the leaks had not healed through endothelialization, and that replacement of the mitral valve was necessary.

Dr. Shaffer began the second valve operation on September 3, 1996, but made the decision to abandon the procedure before its completion due to a massive hemorrhage resulting from the patient’s dense scar tissue. Subsequently, the decedent remained in the hospital where she continued to deteriorate, developed multi-organ failure, and died on September 14, 1996.

Ajury trial was held from November 15-19,2004. The jury returned a verdict in favor of the defendants. (N.T. 1241-42.) On November 29,2004, plaintiffs filed a timely motion for post-trial relief pursuant to Pa.R.C.P. 227.1. Defendants filed a response on December 8,2004. Upon review of the transcript, the plaintiffs withdrew two of their claims of trial error, and, thereafter, the plaintiffs filed the present post-trial motion on May 6, 2005, requesting a new trial as to the aforementioned issues. Defendants subsequently filed a brief in opposition to the plaintiffs’ post-trial motion.

The decision to order a new trial is one that lies within the discretion of the trial court. Coker v. S.M. Flickinger Company Inc., 533 Pa. 441, 451, 625 A.2d 1181, 1186 (1993). There are two levels to atrial court’s decision as to whether to grant a new trial. First, the court must determine whether a mistake was made at trial. This decision may involve factual, legal, or discretionary matters. The court must then determine whether the mistake constitutes a sufficient basis for granting a new trial. This is always a discretionary matter because it requires consideration of the particular facts and circumstances surrounding the case. Morrison v. Commonwealth, Department of Public Welfare, Office of Mental Health (Woodville State Hospital), 538 Pa. 122, 646 A.2d 565 (1994). Courts have routinely granted new trials where the verdict is against the weight of the evidence, “when the jury’s verdict is contraiy 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.” Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985).

TWO SCHOOLS OF THOUGHT

Plaintiffs’ first contention is that the “two schools of thought” doctrine is inapplicable here, due to a lack of a consensus regarding the decedent’s diagnosis.

In Jones v. Chidester, 531 Pa. 31, 610 A.2d 964 (1992), the Pennsylvania Supreme Court set forth the requirements of the “two schools of thought” doctrine. The court found that “[wjhere competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.” Id. at 40, 610 A.2d at 969. Instead of placing a numerical value on what constituted a considerable number, the court required only that the defendant provide an expert witness who could give factual reasons to illustrate that a considerable number of professionals agreed with the treatment employed by the defendant. Once the above requirement was met, a jury instruction would be warranted and the burden would then be placed on the jury to decide if two legitimate schools of thought existed that would bar the defendant from liability. Id.

Plaintiffs contend that this court erred by instructing the jury on the “two schools of thought” doctrine. They argue that no consensus existed regarding the diagnosis of the decedent and therefore, according Choma v. Iyer, 871 A.2d 238 (Pa. Super. 2005), the “two schools of thought” doctrine is inapplicable. In Choma, the court held the doctrine to be inapplicable where the expert witnesses disagreed over the degree to which plaintiff was overweight. The court stated that, where medical experts in a case agree as to the recognized and established proper treatment for a particular type of injury but there is a dispute as to whether the plaintiff had that type of injury, the latter question is one of fact for the jury. Id. citing Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338 (1939).

However, unlike Choma, both plaintiffs’ and defendants’ experts agreed with Dr. Shaffer that the decedent was suffering from hemolysis and had a perivalvular leak. Plaintiffs’ expert testified that the decedent was suffering from hemolysis caused by a perivalvular leak. (N.T. 225.) Further, on cross-examination, plaintiffs’ expert testified that he believed Dr. Shaffer was aware that a small or mild perivavular leak could result in massive hemolysis. (N.T. 331.) Similarly, defense expert Bradley Levin testified that Dr. Shaffer made the correct diagnosis. However, Dr. Levin further testified that in his opinion this was a case of treatment and not diagnosis. (N.T. 1065.)

Additionally, unlike Choma, a dispute did arise regarding the proper treatment of the decedent’s hemolysis. Plaintiffs’ expert Dr. Bojar testified that another operation was needed to repair the decedent’s artificial valve (N.T. 227-28.) Conversely, defendants’ expert Dr. Levin opinioned that endothelialization was the proper procedure. (N.T. 844.) Therefore, since a dispute did not arise regarding the decedent’s condition but rather the treatment of that condition, this court finds that the “two schools of thought” doctrine is applicable.

Alternatively, plaintiffs argue that defendants failed to meet their burden of proving that its “school of thought” was a course of treatment advocated by a considerable number of medical professionals in the area of the defendant doctor’s expertise. Plaintiffs cite Tesauro v. Perrige, 437 Pa. Super. 620, 650 A.2d 1079 (1994), where the court found that the writings and teachings of one individual were insufficient to establish that a considerable number of professionals agree with the advocated treatment.

However, in Gala v. Hamilton, 552 Pa. 466, 715 A.2d 1108 (1998), the court clarified Tesauro and found that it did not stand for the proposition that medical literature was required to establish factual support for the advocated school of thought. The court in Gala found that a requirement of medical literature would be contrary to the finding in Jones, that the burden on defendant “should not prove burdensome.” Id., 552 Pa. at 479, 715 A.2d at 1115, Jones at 40, 610 A.2d at 969. The Gala court found that a jury instruction on the “two schools of thought” doctrine was warranted after “the testimony of expert witnesses alone establishes that a considerable number of recognized and respected professionals advocate the course of treatment [advocated] by defendant.” Gala, 552 Pa. at 479, 715 A.2d at 1114. The court found that, after defendant had provided this expert testimony, plaintiff was free to challenge the basis of the expert’s testimony on cross-examination. Id.

In the instant case, this court finds that defendants satisfied their burden by providing an expert witness who gave factual reasons to support that a considerable number of professionals agreed with defendants’ method of treatment. Defendants’ expert witness Dr. Levin, who performed 300 to 400 surgeries similar to the one performed on the decedent, testified that, in the vast majority of cases, endothelialization would correct the leak and solve the problem. (N.T. 876.) Dr. Levin buttressed this point by giving examples of the medical literature that supported Dr. Shaffer’s course of treatment. (N.T. 877-79, 885-87.) One example in particular, from the Journal of the American College of Cardiology, found that, following a study of 113 patients with a leak similar to that found in the decedent, 56 had leaks that healed themselves over a six-week time span.

Support for defendants’ course of treatment is also found in the consensus that existed between defendant, Dr. Shaffer, and Dr. Gregory Keagy, a local heart surgeon affiliated with another practice group who was consulted by Dr. Shaffer to assist in her decision to pursue endothelialization as a course of treatment for the decedent. In a letter to Dr. Shaffer, Dr. Keagy stated that he “would agree with your course of observation and waiting till more time has elapsed since OR to see if patient hemolytic — hemolysis is decreasing.”

Therefore, this court finds that the defendants clearly met their burden of establishing that another school of thought existed which was supported by a considerable number of recognized and respected professionals in the given area of expertise who would have followed the same course of treatment. Consequently, since defendants met this burden, the instruction on the “two schools of thought” doctrine was warranted.

FRYE MOTION

Plaintiffs argue that this court improperly denied their Frye motion and, therefore, the testimony of the defendants’ sole expert Dr. Levin was improperly permitted. Plaintiffs contend this testimony was highly prejudicial and directly resulted in a verdict for the defendants.

The admission of expert testimony in Pennsylvania is governed by Pa.R.E. 702, which embodies Frye and reads:

“If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”

Frye explains that “while the courts will go a long way in admitting expert testimony, deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

Prior to the commencement of trial, plaintiffs sought by written motion to preclude testimony of defense expert Dr. Levin on the grounds that it was prohibited under Frye. Plaintiffs’ specific objection arose from the theory that endothelialization over a six-week period could seal a perivalvular leak. Before this expert took the stand, a side-bar discussion ensued and the motion was denied. (N.T. 1088-92.)

Plaintiffs argue that similar to Grady v. Frito-Lay Inc., 576 Pa. 574, 839 A.2d 1038 (2003), because Dr. Levin’s theory regarding endothelialization was never generally accepted by respected members of the field of cardiothoracic surgery, the jury’s acceptance of his testimony as scientific/medical fact rendered its verdict untrustworthy. This argument is without merit.

In Grady, plaintiff’s expert, a chemical engineer, sought to testify as to the danger of Doritos® brand chips and their inability to be safely swallowed. The trial court ruled that the expert did not satisfy the Frye test, however, the appellate court disagreed and reversed. The Supreme Court ultimately reinforced Frye as the standard for expert evidence in Pennsylvania. However, the court reversed in part, determining that the exclusion of evidence was not an abuse of discretion because of the failure to establish that the standard methodology used in reaching the said conclusion was generally accepted by scientists in the relevant field.

This case is distinguishable from Grady because Dr. Levin’s expert testimony did in fact comport with the Frye test for admissibility by being demonstrated as generally accepted within the scientific/medical community. Dr. Levin testified as to the methodology for allowing a leak to heal itself through endothelialization versus replacement, and the significant decrease in hemolytic symptoms to shortly follow, and factually proved that doctors in the field of cardiothoracic surgery generally accepted this methodology. This was buttressed by the testimony of the four doctors at Shaffer Cardiovascular, the independent second opinion given by Dr. Keagy, the recommendation of the valve manufacturer, and the medical articles used by Dr. Levin in his testimony.

Moreover, Grady further clarifies that whether a witness is qualified to render opinions, and whether his testimony passes the Frye test for admission of expert scientific evidence, are two distinct inquiries that must be raised and developed separately by the parties, and ruled upon separately by the trial courts. Grady v. Frito-Lay Inc., 576 Pa. 574, 839 A.2d at 1045-46 (2003). In this case, the plaintiffs are not challenging Dr. Levin’s qualifications as an expert witness, but whether his testimony passed the Frye test for admission of the expert scientific evidence that he rendered at trial.

Additionally, plaintiffs contend that this court abused its discretion by admitting this evidence in view of the fact that no valid scientific or medical evidence or literature was produced at trial establishing that this proposed course of action was generally accepted in the scientific/ medical community, and maintain that a new trial must be awarded.

Plaintiffs’ argument that defendants’ failure to produce any scientific or medical literature proves that this theory was not generally accepted in the scientific community is erroneous. Factual support for the “two schools of thought” instruction need not be in the form of medical literature, rather, it may be testimonial. Gala v. Hamilton, 552 Pa. 466, 715 A.2d 1108 (1998). The jury, however, may take into consideration the lack of medical literature supporting an expert’s position, when evaluating the information to render a verdict. Id. at 479, 715 A.2d at 1115.

Awarding a new trial based upon plaintiffs’ argument would be inappropriate. The decision to grant a new trial grounded on the improper admittance of expert testimony is reviewed under an abuse of discretion standard. Grady v. Frito-Lay Inc., 576 Pa. 574, 839 A.2d 1038 (2003). “An abuse of discretion... requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.” Id., 839 A.2d at 1046, citing Paden v. Baker Concrete Construction Inc., 540 Pa. 409, 414, 658 A.2d 341, 344 (1995). Absent a clear abuse of discretion or error of law, a trial court’s decision regarding expert testimony will be upheld. Thomas v. West Bend Company Inc., 760 A.2d 1174 (Pa. Super. 2000).

Finally, plaintiffs argue that, since the admission of expert testimony was improper, the “two schools of thought” doctrine that was improperly presented directly led to a verdict for the defendants. Since “two schools of thought” was not on the verdict slip, plaintiffs cannot establish that this doctrine had a direct effect on the verdict. (See verdict slip, Nov. 19, 2004.) The jury’s decision may have rested upon the plaintiffs’ failure to meet their burden of proof with regard to negligence, and not the alternative school of thought presented by the defendants. Therefore this court properly denied the plaintiffs’ Frye motion.

Accordingly, the following is entered:

ORDER

And now, October 18, 2005, it is hereby ordered that plaintiffs’ motion for post-trial relief is denied.

      . A disease of her heart valve that would require mitral valve replacement surgery.

      . The destruction of red blood cells.

      . Holes between/within the sewing ring of the prosthetic mitral valve and the tissue to which it was supposed to be sutured.

      . A natural tissue growth over the area of a mechanical heart valve’s exposed sewing ring.

      . A treatment plan approved and agreed upon by the four heart surgeons affiliated with Dr. Shaffer’s group, the independent second opinion from the cardiothoracic surgeon consultation (with Dr. Keagy), and the valve manufacturer.


source: Caselaw Access Project

author: DiFRANCESCO, J,

license: Public Domain

text:
    Rezk v. Dubois Medical Supply Inc.

      RonaldP. Carnevali Jr, for plaintiff.

      Anthony S. Guido, for defendant.
    August 23, 2005
   DiFRANCESCO, J,

This case is before the court on plaintiff’s motion to coordinate actions and/or to stay regarding actions filed in both Cambria and Clearfield counties. Arguments of counsel were heard on August 15, 2005. The court has subsequently taken the matter under advisement.

FINDINGS OF FACT

The plaintiff, John C. Rezk, was required by the President of DuBois Medical Supply Inc. (defendant) to execute an agreement with respect to his employment with the defendant. The said agreement was executed on or about February 2003. The plaintiff alleged that the agreement contained a clause providing for a restriction against competition should the plaintiff’s relationship with the defendant be terminated. The plaintiff also contends that the agreement contained a clause providing for a compensation increase upon execution of the agreement.

A dispute arose between the parties when the plaintiff contended that the defendant failed to provide him with a compensation increase at the time of the execution of the agreement or at any time thereafter. On or about June 5, 2005, the plaintiff’s employment with the defendant was terminated.

The defendant subsequently asserted that it would enforce the noncompetition portions of the agreement against the plaintiff. In response, the plaintiff filed a complaint for declaratory judgment with the Cambria County Court of Common Pleas asking that the agreement and its restriction against competition be declared void and unenforceable.

On or about July 7,2005, the defendant, as well as its president, Paul K. Rezk, and his wife, Karen M. Rezk, filed a complaint in equity in the Clearfield County Court of Common Pleas docketed at 05-977-CD against the plaintiff. The three-count complaint asked in part that the plaintiff be enjoined from soliciting any customers or patients of the defendant, enforcement of the noncom-petition clause, a count of unjust enrichment, and that the plaintiff allegedly disrupted a sale of the defendant company whichresulted in apotential loss of $1,000,000 for the defendants.

As a result of these concurrent actions in Cambria and Clearfield counties, the plaintiff has filed a motion to coordinate actions and/or to stay with this honorable court asking that the action in Clearfield County be transferred to Cambria County or, conversely, that the action in Clearfield County be stayed until the instant action is resolved and this court has made a determination with respect to the enforceability of the noncompetition provisions of the agreement in dispute.

DISCUSSION

Regarding the coordination of actions in different counties, Pennsylvania Rule of Civil Procedure 213.1 provides:

“Rule 213.1. Coordination of actions in different counties
“(a) In actions pending in different counties which involve a common question of law or fact or which arise from the same transaction or occurrence, any party, with notice to all other parties, may file a motion requesting the court in which a complaint was first filed to order coordination of the actions. Any party may file an answer to the motion and the court may hold a hearing.
“(b) The court in which the complaint was first filed may stay the proceedings in any action, which is the subject of the motion.
“(c) In determining whether to order coordination and which location is appropriate for the coordinated proceedings, the court shall consider, among other matters:
“(1) whether the common question of fact or law is predominating and significant to the litigation;
“(2) the convenience of the parties, witnesses and counsel;
“(3) whether coordination will result in unreasonable delay or expense to a party or otherwise prejudice a party in an action which would be subject to coordination;
“(4) the efficient utilization of judicial facilities and personnel and the just and efficient conduct of the actions;
“(5) the disadvantages of duplicative and inconsistent rulings, orders or judgments;
“(6) the likelihood of settlement of the actions without further litigation should coordination be denied.
“(d) If the court orders that actions shall be coordinated, it may
“(1) stay any or all of the proceedings in any action subject to the order, or
“(2) transfer any or all further proceedings in the actions to the court or courts in which any of the actions is pending, or
“(3) make any other appropriate order.
“(e) In the order of coordination, the court shall include the manner of giving notice of the order to all parties in all actions subject thereto and direct that specified parties pay the costs, if any, of coordination. The court shall also order that a certified copy of the order of coordination be sent to the courts in which the actions subject to the order are pending, whereupon those courts shall take such action as may be appropriate to carry out the coordination order.
“(f) The final order disposing of a coordinated action or proceeding shall be certified and sent to the court in which the action was originally commenced to be filed of record.”

The Explanatory Comment for this relatively recently enacted Rule of Civil Procedure provides in part:

“A problem sought to be relieved by this rule is the instance where actions proceed simultaneously in more than one county and no court will defer to another and no party is willing to litigate the claim in a county other than the one of his choosing. This situation leads to duplication of effort by the courts and the parties and may result in inconsistent rulings and orders.”

The Comment further provides:

“In providing a framework rather than detailed procedures, the rule applies to both complex and simpler litigation which crosses county lines. One court will be able to take charge of multiple class actions commenced in several counties. One court will be able to oversee litigation arising from two petitions to open a judgment, one petition filed in the county in which the judgment was entered and the other in the county to which it was transferred.”

In the present matter, the plaintiff has asked that this court either transfer the Clearfield County action to Cambria County pursuant to Pa.R.C.P. 213.1 (d)(2) or stay the Clearfield County action per Pa.R.C.P. 213.1(d)(1) until the instant action is resolved and this court has made a determination with respect to the enforceability of the noncompetition provisions of the agreement in question.

In making such a determination, the Superior Court has directed trial courts to consider the totality of the circumstances and examine in particular, factors enumerated in Pa.R.C.P. 213.1; if the trial court then decides that coordination is appropriate, it may do so in any court in which one or more of the actions is pending, and choice of venue, like decision to coordinate, is left to the sound discretion of the trial court. See Wohlsen/Crow v. Petti nato Associated Contractors & Engineers Inc., 446 Pa. Super. 215, 666 A.2d 701 (1995).

As such, this court has reviewed the actions filed in both counties, and finds that there is a commonality of parties and with the legal issue of the non-competition clause of the agreement. In fact, the court finds that essentially both actions per the noncompetition clause arise from the same transaction or occurrence. In reviewing the separate complaints, the court notes that the facts per this issue as so alleged by both parties are nearly identical. However, the court does note that the issue raised in Clearfield County regarding the sale of the defendant’s business has not been raised in Cambria County. The court believes that the validity or voidability of the agreement is the key underlying issue in both suits and must be addressed before pursuing the other action.

Therefore, with this court’s finding of the commonality of the issue of the noncompetition clause of the agreement in the actions filed in both Clearfield and Cambria County, and with the action in Cambria County having been filed first, the court finds that this issue should be decided first, and in Cambria County with the other issues in Clearfield County stayed until resolution of this issue. With the spirit of Pa.R.C.P. 213.1 in mind, it is this court’s goal to avoid inconsistent rulings on the same issue — that being a determination of the validity of the noncompetition clause. As for the other issues filed in Clearfield County, they should be decided appropriately in Clearfield County upon resolution of the issue of the validity of the noncompetition clause.

Accordingly the following order is entered:

ORDER

And now, August 23, 2005, it is hereby ordered and decreed that pursuant to Pennsylvania Rule of Civil Procedure 213.1 (d)( 1 )-(3), that the prothonotary of Cambria County is directed to notify the Clearfield County Court of Common Pleas that the action filed at 05-977-CD is stayed until the issue raised in both the action filed in Cambria County and in Clearfield County regarding the noncompetition clause is resolved by the Cambria County Court of Common Pleas.


author: COX, J,

text:
    Commonwealth v. Reed

      Thomas W. Minett, office of the district attorney, for Commonwealth.

      Randall T. Hetrick, for defendant.
    August 22, 2005
   COX, J,

The defendant in the instant case, Dennis C. Reed, is charged with four counts of kidnapping, three counts of interference with custody of children, criminal homicide, simple assault, unlawful restraint, burglary, unlawful possession of a firearm and attempted robbery. Defendant has filed an appeal from this court’s order dated June 3,2005, wherein this court denied defendant’s motion to quash charges which was founded on double jeopardy grounds.

The relevant facts are as follows: On December 17, 2001, the New Castle Police Department received missing persons reports for Wendy Miller and her children, Jay la McKnight, Mark McKnight and Javaughn McKnight. On December 22,2001, defendant was arrested in Butler County by officers of the Butler City Police Department on charges of firearms not to be carried without a license, possession of a controlled substance with intent to deliver and possession of a controlled substance. At the time of defendant’s arrest, defendant was in possession of the vehicle belonging to Wendy Miller. Jayla McKnight, Mark McKnight and Javaughn McKnight, who were alleged to have been kidnapped by defendant, were passengers in the vehicle. The arresting officers conducted a search of defendant incident to his arrest that revealed a loaded handgun, a quantity of crack cocaine, a spent 12-gauge shotgun shell and a 16-gauge shotgun slug. Defendant was then transported to the Butler Police Department in the City of Butler, Butler County, Pennsylvania. Due to a missing persons report from the New Castle Police Department, Wendy Miller’s vehicle was secured and also transported to the Butler Police Department where Butler City Police Lieutenant Timothy Fennell conducted a brief search of the vehicle in an attempt to determine the whereabouts of Wendy Miller. During this search, Lieutenant Fennell viewed a black shotgun with a pistol grip in the cargo area of the vehicle. The vehicle was then secured at the Butler Fire Department and the New Castle City Police Department was contacted. New Castle city police obtained a search warrant for the vehicle and conducted a search. Various clothing items belonging to Wendy Miller and other evidence was recovered from the vehicle.

On December 23,2001, the body of Wendy Miller was found in a wooded area near Neshannock Boulevard Extension in New Castle, Lawrence County, Pennsylvania. It was determined that Ms. Miller was the victim of a homicide, having been killed by trauma to the head caused by a gunshot from a large caliber rifle or shotgun.

Following defendant’s arrest in Butler County, both Butler County and Lawrence County filed different charges against defendant. On December 22, 2001, the charges of firearms not to be carried without a license, possession of a controlled substance with intent to deliver and possession of a controlled substance were filed against defendant in Butler County. On January 3,2002, the charges of kidnapping, interference with custody of children, criminal homicide, simple assault, unlawful restraint, burglary, unlawful possession of a firearm and attempted robbery were filed in Lawrence County. On January 17, 2002, a preliminary hearing was held in Lawrence County and defendant was held for trial. On February 28, 2002, a preliminary hearing was held in Butler County and the charges were bound over for trial. On January 17, 2003, defendant filed an omnibus pretrial motion in Lawrence County. In Butler County a hearing was held on March 17, 2003, to consider a motion to suppress filed by defendant. Defendant’s motion to suppress was denied by an order of court that same date. The Butler County Court of Common Pleas proceeded to a jury trial immediately and defendant was tried and convicted by a jury that same day. Subsequently, in Lawrence County, defendant filed supplemental pretrial motions in the nature of a motion to quash charges on October 14, 2003. On June 3, 2005, following hearings and submission of briefs on behalf of defendant and the Commonwealth, this court entered an order denying defendant’s pretrial motion and motion to quash. It is the order dated June 3, 2005, that is the subject of this appeal.

An interlocutoiy appeal founded on double jeopardy grounds is proper due to the nature of the double jeopardy right and the need for immediate resolution of pretrial controversy to protect the rights of the accused. Commonwealth v. Berardi, 362 Pa. Super. 529, 530, 524 A.2d 1365, 1366 (1987) (citing Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977)). Where a defendant asserts a double jeopardy claim before the trial court, that court must address its merit. Berardi, supra at 531, 524 A.2d at 1366.

Defendant seeks to quash all of the charges pending in Lawrence County pursuant to 18 Pa.C.S. §110, alleging defendant already has been brought to trial and convicted in Butler County on charges arising from conduct occurring at approximately the same time as the conduct giving rise to the charges in Lawrence County. The motion to quash filed by defendant must be denied.

Section 110 provides in pertinent part:

“When Prosecution Barred by Former Prosecution for Different Offense
“Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
“(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for same offense) and the subsequent prosecution is for:
“(i) any offense of which the defendant could have been convicted on the first prosecution;
“(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and occurred within the same judicial district as the former prosecution unless the court ordered a separate trial of the charge of such offense; or
“(in) the same conduct, unless:
“(A) the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of such offenses is intended to prevent a substantially different harm or evil.18 Pa.C.S. §110.

The compulsory joinder rule bars a subsequent prosecution if each prong of the following test is met: (1) the former prosecution resulted in an acquittal or conviction; (2) the current prosecution was based on the same criminal conduct or arose from the same criminal episode; (3) the prosecutor in the subsequent trial was aware of the charges before the first trial; and (4) all charges were within the same judicial district as the former prosecution. Commonwealth v. Nolan, 579 Pa. 300, 308, 855 A.2d 834, 839 (2004). The compulsory joinder rule was designed to serve two distinct policy considerations: (1) to protect a person accused of crimes from governmental harassment by being forced to undergo successive trials for offenses stemming from the same criminal episode, and (2) to ensure judicial economy. Id. at 310, 855 A.2d at 840. These policy concerns must not be interpreted to sanction “volume discounting.” Id.

There is no question that the charges filed in Butler County resulted in a conviction as the defendant was convicted by a jury for the offenses of possession of a controlled substance, possession of a controlled substance with intent to deliver and firearms not to be carried without a license. Therefore, the first prong of the compulsory joinder test is satisfied.

The second prong of the test pertains to whether the conduct occurred during the same criminal episode. Following a complete and thorough review of the arguments, briefs of counsel and the law of this Commonwealth, this court finds that the charges on which defendant was tried in Butler County and the charges pending before this court in Lawrence County do not constitute a “single criminal episode.”

“To determine whether various acts constitute a single criminal episode, we must examine two factors: first, the logical relationship between the acts; and second, the temporal relationship between the acts.” Commonwealth v. Hockenbury, 549 Pa. 527, 533, 701 A.2d 1334, 1337 (1997). “In determining whether the ‘logical relationship’ prong of the test has been met, we are cautioned ‘that a mere de minimis duplication of factual and legal issues is insufficient to establish a logical relationship between the offenses. Rather what is required is a substantial duplication of issues of law and fact.’ ” Id. (citation omitted) “Thus, where a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of scarce judicial resources. In such cases, failure to consolidate will bar successive prosecutions.” Commonwealth v. Hude, 500 Pa. 482, 494, 458 A.2d 177, 183 (1983).

The logical and temporal relationship between the charges in Butler County and the charges in Lawrence County are de minimis. The investigations were performed by two separate police departments and the proof required for the crimes does not rest solely on the credibility of a single witness. Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755 (1995) (holding that the involvement of two distinct law enforcement entities prevents a substantial duplication of issues of law and fact). While some minor repetition of witnesses will occur, numerous different witnesses will be used to prove substantially different facts. Commonwealth v. Anthony, 553 Pa. 55, 717 A.2d 1015 (1998) (finding that when only two additional witnesses of nominal nature are called in the second trial and all other witnesses are the same, substantial duplication of factual issues exists). The charges currently before this court will require the Commonwealth to call a significant number of material witnesses that were not required for the charges filed in Butler County. Such witnesses as the children of the victim, family members who filed the missing persons report, the individual who located the body of the victim, the pathologist who conducted the autopsy on the victim, ballistics experts, records witnesses regarding vehicle ownership and the temporary protection from abuse order, and the New Castle police officers who conducted the search and investigation of the charges will be required for the Commonwealth to prove the charges against defendant that are now before this court.

Finally, the laws describing the previous and subsequent offenses were intended to prevent a substantially different harm or evil. 18 Pa.C.S. §110(1 )(iii)(A). The charges in Butler County dealt with the illegal possession of a firearm which consisted of a handgun unrelated to the murder and possession of a controlled substance. The charges before this court entail neither the possession of the handgun nor the possession of drugs. The charges in Lawrence County deal with criminal homicide, kidnapping and other charges related to the kidnapping of the victim and her children. The charges before this court relate to offenses dealing with very different crimes than the charges in Butler County. This court will not interpret this section to permit a “volume discount” on defendant’s charges. Nolan, supra. The second prong of the compulsory joinder test is not met. As defendant’s argument does not meet all four prongs of the compulsory joinder test, defendant’s motion to quash charges must be denied. Although the failure to meet any one of the prongs would be sufficient to deny the motion, the court will analyze the remaining two prongs.

The third prong of the compulsory joinder test bars a subsequent trial if the offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial. 18 Pa.C.S. §110. More clearly stated, if the prosecutor in the first trial was aware of the instant charges prior to the commencement of the first trial, then the subsequent trial would be barred. Commonwealth v. Bracalielly, 540 Pa. 460, 658 A.2d 755 (1995). In Bracalielly, the prosecutor in Butler County commenced a trial on charges arising from incidents occurring in Butler County with the full knowledge that similar charges were pending in Allegheny County. The Commonwealth never disputed that the Butler County prosecutor had pretrial knowledge of the pending charges in Allegheny County. Likewise, there is no dispute in the present case that the prosecuting attorney in Butler County thoroughly was aware of the instant charges. Therefore, this prong would favor defendant.

The final prong of the compulsory joinder test currently requires that the offenses occur “within the same judicial district.” At the time the offenses occurred, the language of the rule required that the offenses occur “within the jurisdiction of a single court.” As a court of common pleas has statewide jurisdiction, even though it exists in distinct judicial districts, determining which language applies is crucial.

As section 110 is a prohibitive section, it is logical that it must be applied at a point in time when it would actually prohibit additional prosecution. In Nolan, the defendant entered into a guilty plea in Lackawanna County and then was tried by a jury in Luzerne County. The Pennsylvania Supreme Court noted that the rule which applies is the rule in place at the time of the defendant’s trial. Nolan, supra at 309 n.7, 855 A.2d at 839 n.7. Former Justice Nix, in his concurring opinion in the case of Commonwealth v. Lee, 490 Pa. 346, 416 A.2d 503 (1980), also stated that double jeopardy is a plea in bar and traditionally must be raised in advance of the objectionable anticipated action or be waived. Lee at 351, 416 A.2d at 505. The general rule is that the courts apply the law in effect at the time of the appellate decision. Blackwell v. Commonwealth of Pennsylvania, State Ethics Commission, 527 Pa. 172, 589 A.2d 1094 (1991). This principle is applied with equal force to both civil and criminal proceedings. Id. Thus, a party whose case is pending on appeal is entitled to the benefit of changes in law which occurs before the judgment becomes final. Id. When defendant raised his right to avoid double jeopardy, the new language of section 110 had been in place for over a year. Furthermore, the new language was in effect for over six months prior to defendant’s trial in Butler County. For these reasons, this court finds that the language of section 110, as it currently is written, is the language that must be applied.

Thus, as Butler County and Lawrence County are two separate judicial districts, section 110 does not bar the current charges from proceeding to trial. Therefore, the fourth prong of the compulsory joinder test fails.

As defendant’s argument fails on both the second and fourth prongs of the compulsory joinder rule, this court’s order dated June 3, 2005, should be affirmed and defendant’s appeal dismissed.

ORDER

Now August 22, 2005, an appeal having been filed in the above-captioned case by the defendant, Dennis C. Reed, the court directs that the attached opinion be filed to satisfy the requirements ofPa.R.A.P. 1925(a). The clerk of courts of Lawrence County is directed to immediately assemble the record and transmit said record to the Superior Court of Pennsylvania as required by the applicable Rules of Appellate Procedure.

The clerk of courts is directed to serve a copy of this order of court and attached opinion upon counsel of record, Thomas W. Minett, Esquire and Randall T. Hetrick, Esquire.

      . The General Assembly amended 18 Pa.C.S. §110 on June 28, 2002, and made it effective 60 days from that date. The former section 110 read, “was within the jurisdiction of a single court” rather than “occurred within the same judicial district.”

      . See footnote number one.


author: GOLDBERQ J,

text:
    Commonwealth v. Leddington

      Daniel M. Keane, deputy district attorney, for Commonwealth.

      Ann P. Russavage-Faust, administrative deputy public defender and Christa S. Dunleavy, senior deputy public defender, for defendant.
    August 12, 2005
   GOLDBERQ J,

This case is before the court pursuant to the Commonwealth’s request that defendant, Christopher Leddington, be designated a sexually violent predator (SVP) under 42 Pa.C.S. §§9791-9799.7, commonly referred to as Megan’s Law.

The issues before us are twofold. First, is whether the Commonwealth’s expert may rely upon unproven allegations contained in a probable cause affidavit, or in police reports, in reaching a determination that Leddington is an SVP. The second issue is whether the Commonwealth has proven, by clear and convincing evidence, that Leddington meets the criteria of an SVP.

We hold that the opinions given by the Commonwealth’s expert cannot be based upon unproven allegations contained in a probable cause affidavit or other police reports, because such data is inherently unreliable and, as such, it is unreasonable for that expert to premise his opinion on such information. However, even after excluding the opinions rendered by the Commonwealth’s expert that were premised upon these documents, we nonetheless find that sufficient evidence exists to designate Leddington as an SVP.

PROCEDURAL AND FACTUAL BACKGROUND

On January 7,2002, Leddington pled guilty to a criminal information charging him with indecent assault (Count One) (18 Pa.C.S. §3126(a)(7)) and corruption of minors (Count Two) (18 Pa.C.S. §6301). The facts recited at the guilty plea hearing established that on March 5,2000, Leddington had indecent contact with a girl who, at the time, was under the age of 13. (N.T. 1/7/02, p. 6.)

Prior to sentencing, the Commonwealth petitioned to have Leddington classified as an SVP. This request was premised upon a report prepared by Dean Dickson, a psychologist with the Sexual Offenders Assessment Board. This petition was denied at that time due to the fact that a three-judge panel of this court had ruled that Megan’s Law was unconstitutional.

On May 6, 2002, Leddington was sentenced to one and one-half to three years incarceration for indecent assault and a consecutive term of five years probation for corruption of minors. At the sentencing hearing, Leddington acknowledged that he committed these offenses while he was participating in sexual offender’s counseling that was ongoing due to a prior conviction for indecent assault. (N.T. 5/6/02, pp. 9-10.)

After Megan’s Law was found to be constitutional by our Supreme Court, this matter was re-listed and transferred to the undersigned for a hearing to determine whether Leddington should be classified as an SVP. We held a hearing on this issue on May 25, 2005.

Pre-hearing, Leddington filed a motion in limine seeking the exclusion of any opinions from Dickson which were based upon “unproven allegations” contained in the probable cause affidavit or other law enforcement documents. Specifically, Leddington sought to exclude any opinions based upon alleged threats made by him to the victim after the assault and allegations that, on the same night as the incident in question, he molested another young victim. (Leddington’s motion in limine.)

In response, the Commonwealth first represented that the probable cause affidavit had been entered into evidence at the plea hearing and thus, because Leddington had agreed to the facts set forth in the affidavit, Dickson properly relied upon these facts in forming his opinions. (N.T. 5/25/05, pp. 9-10.)

However, the assistant district attorney’s representations are not supported by the record as the probable cause affidavit was never introduced into evidence at either the January 7,2002 plea hearing or the May 6,2002 sentencing. Thus, there is no record of Leddington agreeing that he either threatened the victim or molested a second victim. In fact, after further inquiries by this court at the May 25, 2005 Megan’s Law hearing, the assistant district attorney acknowledged that Leddington never admitted to threatening the victim and that these allegations were never charged. The assistant district attorney also acknowledged that the multiple victim allegation was never raised at the plea hearing.

Thus, despite the complete lack of factual support at any proceeding establishing that Leddington threatened the victim or molested a second victim, the Commonwealth asserts that it was permissible for Dickson to consider these allegations through his review of the probable cause affidavit and/or other police reports. (N.T. 5/ 25/05, pp. 17-19; Commonwealth’s memorandum of law, pp. 2-4.)

We held Leddington’s motion in limine under advisement and address it below.

Only one witness, Dean Dickson, testified at the Megan’s Law hearing. Dickson’s report was also entered into evidence. (N.T. 5/25/05, exhibit C-l.) Dickson opined that Leddington qualified as an SVP and, in explaining the basis for his opinion, he tracked the assessments section of Megan’s Law as follows:

Section 9795.4(1) — Facts of the Offense

Two of the assessment factors under this section which Dickson relied upon were the subject of Leddington’s motion in limine, discussed above. As to the first, Dickson relied upon the probable cause affidavit in finding that Leddington displayed unusual cruelty during the commission of the crime by allegedly threatening the victim after assaulting her. (N.T. 5/25/05, pp. 46-47.) He also premised his opinion, in part, on the fact that there were multiple victims, again apparently relying upon police reports or the probable cause affidavit in finding that Leddington, on the same night, inappropriately touched a young girl in addition to the victim. (N.T. 5/25/05, p. 37.) For the reasons set forth below, we will not consider these opinions.

Additionally, regarding the assessment factors that pertain to the relationship of the individual to the victim, Dickson opined that Leddington used his relationship with the victim’s father to gain access to a birthday party for the victim, who at the time was 10 years old. Dickson explained that during and after this party, Leddington cultivated a relationship with the victim which allowed him to sleep at the victim’s house and, in fact, on the same couch with her, all for the purpose of victimization. (N.T. 5/25/05, pp. 45-46,67-70.) (These facts were also pertinent to Dickson’s opinion as it relates to whether Leddington acted in a “predatory” fashion by promoting a relationship with the victim for the primary purpose of victimization, also discussed below.)

In reaching his opinion that Leddington was an SVP, Dickson also relied upon the victim’s young age (10 years old) and the fact that Leddington had previously molested his 8-year-old cousin. Dickson explained that these facts reflected that Leddington has an “age preference” for young victims, making it likely that he will re-offend. (N.T. 5/25/05, pp. 39, 46.)

Section 9795.4(2) — Prior Offense History

This section of the assessment factors weighed most heavily in Dickson’s opinion that Leddington should be classified as an SVP. Dickson opined that Leddington’s prior conviction, occurring in 1998, for the same crimes as the instant offense (indecent assault and corruption of minors) indicated that Leddington has strong recidivist tendencies. The 1998 incident also involved the molestation of a young girl that began when the girl was 8 years old and continued until she was 11. (N.T. 5/25/05, pp. 39-40.) Dickson stressed that accepted research reflects that a record of prior sex offenses is highly correlated with the potential to re-offend. (N.T. 5/25/05, p. 48.) These opinions were unrefuted.

The current incident also occurred while Leddington was on both probation for the prior sex offense and in sex offender treatment. Dickson opined that these were compelling indicators that Leddington was at a high risk to re-offend. Dickson stated:

“It’s significant because, during the time that he was under the supervision of Bucks County Adult Probation and Parole and in a treatment program that was approved by Bucks County Adult Probation and Parole, he re-offended when he’s under supervision. I think that’s significant because it means that his controls were so poor that he did not — that he wasn’t affected by being under supervision....
“He said: ‘When I did this, I was attending classes. I was attending classes.’ And this goes to this part of the statute because again, your honor, we’re going back to the statistics. Hansen and Bussiere found that failed sex offender treatment is highly correlated with re-offense potential. Again, Miss Dunleavy objected, but the fact is that he didn’t learn, in my opinion, within a reasonable degree of professional certainty. He didn’t learn.” (N.T. 5/25/05, pp. 51-56.)

As the fact-finder, we place great weight on Dickson’s opinion that persons like Leddington, who fail in sex offender treatment programs, are at high risk to re-offend. (N.T. 5/25/05, pp. 49-53.)

Dickson also considered that Leddington, as a convicted child molester, under the supervision of the court and in counseling, did not recognize the high risk situation he placed himself in by attending a party with young girls and then sleeping on the same couch as the 10-year-old victim. Dickson opined that these facts reflect Leddington’s inability to control his mental illness and his unawareness of high risk situations, both of which are strong indicators of re-offending. (N.T. 5/25/05, pp. 51-54.)

Dickson also considered Leddington’s prior criminal record, which included two juvenile adjudications for theft, adult convictions for burglary and theft, the indecent assault charge referred to above and various parole and probation violations. Dickson opined that Leddington’s non-sexual criminal record, when viewed in conjunction with the prior sexual assault, “coalesced” to create a high risk of re-offense. (N.T. 5/25/05, p. 49, exhibit C-l.)

In summary, Dickson placed heavy emphasis on Leddington’s prior history, finding that all assessment factors under this section, section 9795.4(b)(2)(i)-(iii), reflect a likelihood to re-offend.

Section 9795.4(b)(3) — Characteristics of the Individual

In reference to the assessment factor pertaining to mental illness or mental abnormality, Dickson opined that Leddington is a pedophile as evidenced by his admitted molestation of at least two young girls. According to Dickson, this type of mental abnormality has no cure. In addition, Dickson opined that Leddington also suffered from anti-social personality disorder and impulse control disorder. (N.T. 5/25/05, pp. 63-65.)

Dickson also stated that Leddington’s age when he committed the offense factored into his opinion as “highly significant.” This is due to the fact that reliable studies reflect that “an early onset of sex offending is highly correlated with re-offense potential.” (Dickson did acknowledge that this re-offense risk factor does decrease with age.) (N.T. 5/25/05, p. 58.)

LEGAL ANALYSIS

Admissibility of an Expert Opinion Based Upon Unproven Hearsay Allegations

As set forth above, Leddington seeks the exclusion of two assessment factors in Dickson’s opinion that are based upon information contained in a police probable cause affidavit or other police reports. These allegations are that Leddington threatened his victim after the molestation and that he also assaulted another young girl at the same party on the same evening.

The Commonwealth concedes that neither of these allegations were ever charged. They also acknowledge that Leddington has consistently denied both allegations. The Commonwealth asserts, however, that because probable cause affidavits are the type of data that a sexual offender assessor reasonably relies upon, that Pa.R.E. 703 permits Dickson to consider these unproven, uncharged facts. We disagree.

Pennsylvania Rule of Evidence 703 does permit an expert to base an opinion or inference on otherwise inadmissible evidence so long as the evidence “is of a type reasonably relied upon by experts in the particular field.” Pa.R.E. 703. Thus, in accordance with the plain language of Rule 703, experts are no longer limited to basing their opinions on firsthand knowledge or on trial records. Commonwealth v. Thomas, 444 Pa. 436, 445, 282 A.2d 693, 698-99 (1971) (medical experts may base opinions on reports of others not in evidence). Thus, Rule 703 should be read in tandem with Rule 705, which requires disclosure (rather than admission) of the factual basis of an expert’s conclusions. Pa.R.E. 705. By permitting an expert to rely on the truth of an out-of-court source, and by requiring the expert to name or disclose that source, in certain instances, Pa.R.E. 703 and 705 allow an expert to rely on hearsay. See Gunn v. Grossman, 748 A.2d 1235, 1242 (Pa. Super. 2000) (medical expert witness could read into record a doctor’s opinion from a consultation report).

This does not, however, mean that as long as the hearsay is the type of data that experts typically rely upon, that all such hearsay will be permissible. Luzerne County Flood Protection Authority v. Reilly, 825 A.2d 779, 783 (Pa. Commw. 2003). Nor does it follow that Pennsylvania courts have interpreted Rule 703 to eliminate the requirement that an expert ground their opinion on reliable data. Emigh v. Consolidated Rail Corp., 710 F. Supp. 608, 612 (W.D. Pa. 1989) (citing Barrel of Fun Inc. v. State Farm Fire & Gas Co., 739 F.2d 1028, 1033 (5th Cir. 1984)). Rather, the applicability of the rule permitting experts to express opinions relying on extrajudicial data depends on the circumstances of the particular case and demands the exercise, like the admission of all expert testimony, of the sound discretion of the trial court. Primavera v. Celotex Corp., 415 Pa. Super. 41, 52, 608 A.2d 515, 521 (1992).

In short, Rules 703 and 705 do not permit a court to relinquish its independent responsibilities to determine if the underlying source meets the most minimum standards of reliability and trustworthiness. Emigh, 710 F. Supp. at 612. See also, Commonwealth v. Berrigan, 369 Pa. Super. 145, 174, 535 A.2d 91, 106 (1987) (en banc) (when imposing sentence, a court may not rely on unverified hearsay outside the record); Commonwealth v. Baez, 494 Pa. 388, 395, 431 A.2d 909, 913 (1981) (detective’s written account of what a third-party witness had told him is the type of unreliable out-of-court declaration the hearsay rule was designed to exclude).

With this background in mind, we examine the Commonwealth’s request that we consider portions of Dickson’s opinion which are based upon a probable cause affidavit and/or law enforcement reports. Dickson’s reliance on these documents entails his consideration of several layers of hearsay, contained in documents that were neither entered into evidence nor authenticated in any way, which recite a detective’s account of information obtained from a witness or witnesses, who have never been subject to cross-examination.

The right to confrontation as it relates to the introduction of out-of-court statements was recently extensively discussed by the United States Supreme Court in the case of Crawford v. Washington, 124 S.Ct. 1354 (2004). In Crawford, the court ruled that testimonial hearsay is inadmissible unless the declarant is unavailable and was previously cross-examined on the statement. In stressing that reliability of evidence can only be properly tested through cross-examination, the court stated that:

“Where testimonial statements are involved, we do not think the framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of‘reliability.’... Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Crawford, 124 S.Ct. at 1370.

Here, neither the allegation that Leddington had threatened the victim nor that he molested a second victim on the same night were ever subjected to cross-examination. The Commonwealth could have presented these witnesses and chose not to. Nor did they call as a witness the detective who created the hearsay documents which Dickson relied upon. As such, Leddington’s right of confrontation was never applied to the allegations at issue.

We are also mindful that SVP hearings are not perfunctoiy affairs in which the parties and the judge merely review the trial or guilty plea colloquy proceedings. Rather, they are evidence gathering mechanisms. Commonwealth v. Sanford, 580 Pa. 604, 608, 863 A.2d 428, 431 (2004). SVP status carries with it serious, lifelong repercussions which can put into jeopardy a person’s domestic tranquility and personal relationships. Commonwealth v. Williams, 557 Pa. 285, 311, 733 A.2d 593, 607 (1999). Under these circumstances, we have serious concerns about whether such data is reliable and whether it was reasonable for Dickson to rely upon these unproven allegations which were not subject to cross-examination.

Although our appellate courts have not ruled on whether such evidence may be relied upon by an expert in an SVP hearing, in a concurring opinion in the case of Commonwealth v. Krouse, 799 A.2d 835 (Pa. Super. 2002), Superior Court Judge Bowes addressed the same issue we address here. In agreeing with the majority that the evidence to classify the defendant as an SVP was insufficient, Judge Bowes focused on the fact that the Commonwealth’s expert had relied upon facts that were never introduced into evidence and had been denied by the defendant. In writing that the determination that a defendant is an SVP cannot be based upon unproven allegations, Judge Bowes stressed that, in this context, opinions of experts cannot be premised upon unreliable hearsay, mere suspicion and conjecture. Krouse, 799 A.2d at 846. We agree with this logic.

As the majority opinion in Krouse noted, an SVP classification requires a subjective assessment of an offender’s potential future dangerousness, which includes a greater risk of error than objective determinations. An SVP classification has long lasting effects on an individual’s liberty, which is why the standards of proof are so high. Krouse, 799 A.2d at 840. As such, we hold that Dickson’s opinion, based upon a probable cause affidavit or other police reports, containing several layers of hearsay, which has not been subject to any type of cross-examination, is impermissible. Accordingly, we grant Leddington’s motion in limine and exclude those portions of Dickson’s opinion and report that relate to alleged threats to the victim and the alleged molestation of a separate victim on the same evening.

Classification of Leddington As a Sexually Violent Predator

Under Megan’s Law II, an SVP is defined as “a person who has been convicted of a sexually violent offense ... and who is determined to be a sexually violent predator under section 9795.4 ... due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” Mental abnormality is defined as “[a] congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.” Predatory is defined as “[a]n act directed at a stranger or at a person with whom a relationship has been established or promoted for the primary purpose of victimization.” 42 Pa.C.S. §9792.

The determination of whether an individual should be classified as an S VP is governed by the factors set forth in section 9795.4 — Assessments. A sexually violent predator classification may be made only after an assessment and hearing before the trial court. In order for this classification to occur, the fact-finder must find by clear and convincing evidence that the individual is a sexually violent predator. Commonwealth v. Dengler, 843 A.2d 1241, 1246 (Pa. Super. 2004). With these definitions and standards in mind, we review the record, tracking the assessment factors under section 9795.4.

Facts of the Offense

Although we have excluded assessment factors sections 9795.4(b)(l)(i) and (vi) (multiple victims and unusual cruelty), there were still several assessment factors under section 9795.4(1) — Facts of the current offense that Dickson properly relied upon. Specifically, Dickson focused on the relationship that Leddington cultivated with the victim (section 9795.4(b)(l)(iv))— Relationship of the individual to the victim. This process began through his friendship with the victim’s father which enabled him to attend her 10-year-old birthday party where a group of young girls had gathered. Dickson found this factor was particularly telling especially in light of Leddington’s prior conviction for indecent assault of an 8-year-old. The fact that Leddington then worked to establish enough of a relationship with the 10-year-old victim that he was actually able to sleep on the same couch as her, where he then molested her, after having been previously convicted of molesting an 8-year-old girl, weighs heavily in favor of finding that the Commonwealth has met its burden in establishing that Leddington should be classified as an SVP.

As it pertains to the assessment factor section 9795.4(b)(l)(v) — Age of the victim, Dickson also relied upon the fact that Leddington, through two assaults on an 8- and 10-year-old, within a short time span had developed an “age” preference. We find this to be an additional compelling factor in favor of designating Leddington as an SVP.

Prior Offense History

We recognize that a psychological assessment which attempts to predict future conduct necessarily entails subjective judgments which are not full-proof and have a risk of error. However the objective, unrefuted facts establish that Leddington committed this offense:

• Three years after he had molested an 8-year-old and was convicted of indecent assault and corruption of the morals of a minor;
• While on probation and under the supervision of this court; and
• While he was in sexual offender counseling.

We find that these facts satisfy all of the assessment factors under section 9795.4(b)(2).

As set forth above, Dickson’s opinion that Leddington was likely to re-offend is supported by studies which reflect that a prior sex offense is highly correlated with the potential to re-offend. The fact that Leddington committed this offense while under court supervision for a prior offense is also a great predictor of future conduct and casts a bright light on his inability to control his impulses. Further, Dickson explained that persons like Leddington, who fail in sex offender treatment programs, are at a high risk to re-offend.

Dickson also opined that the combination of Leddington’s prior sexual offense and his prior, non- sexual offense record, when viewed together are also strong indicators of a person who is likely to re-offend. This factor also weighs in favor of an SVP designation.

Leddington has already proven that court supervision and psychological counseling will not deter him from re-offending. If history is the best indicator of what the future holds, then an SVP classification is warranted.

Characteristics of Individual

As set forth above, Leddington was diagnosed as a pedophile. This diagnosis is strongly supported by his admitted molestation of at least two young girls. We place great weight on the fact that the uncontradicted record before us suggests that this type of mental illness has no cure.

The salient inquiry in determining SVP status is the identification of the impetus behind the commission of the offense; that is, whether it proceeds from a mental defect/personality disorder or another motivating factor. Commonwealth v. Plucinski, 868 A.2d 20, 26 (Pa. Super. 2005); Commonwealth v. Bey, 841 A.2d 562, 566 (Pa. Super. 2004). When Leddington, a prior offender with an indecent assault conviction, while on probation and in counseling, places himself at a 10-year-old’s party and sleeps on the same couch as the young victim, we can only conclude that the “impetus behind the commission of the offense” is derivative of a mental disorder. Leddington’s unrefuted status as a pedophile, a diagnosis supported by both expert testimony and his recidivist history, is compelling evidence in the Commonwealth’s favor. Bey, 841 A.2d at 566 (mental disabilities must be weighed more heavily than other factors which carry less significance).

Finally, Dickson considered whether Leddington’s behavior was “predatory” as defined under the Act. As noted above, Dickson found that Leddington, through the promotion of his relationship with the victim’s family, allowed himself to attend a birthday party with young girls. He then established a relationship with the victim which allowed him to actually share a couch with her while they slept, where he then molested her. Given these facts, we credit Dickson’s opinion that Leddington’s acts were directed to establish a relationship for the primary purpose of victimization.

Classification of Leddington As an SVP

We note that several recent Superior Court cases have reversed the trial court’s determination that a defendant qualified as an SVP. However, several assessment factors not present in those cases exist here.

For instance, in Krouse, 799 A.2d at 842, the court found that the Commonwealth had not met its burden, in part, because it was Krouse’s first sexual offense, his prior criminal histoiy entailed only a minor offense and there were no prior incidents involving deviant sexual behavior. Here, Leddington’s prior conviction for an almost identical offense, his extensive criminal record which includes a felony, and his unrefuted mental disorder are much stronger indicators than the facts in Krouse; see also, Plucinski, 868 A.2d at 27 (evidence insufficient where it was defendant’s first offense and he had no history of failed treatment).

In considering all of the assessment factors, Dickson’s exemplary credentials and unrefuted opinion that Leddington is likely to re-offend, and placing great emphasis on the assessment factors set forth in section 9795.4(b)(2)(i)-(iii) — Prior offense history, all of which have been satisfied by clear and convincing evidence, we find that the Commonwealth has met its burden of establishing that Leddington should be classified as a sexually violent predator.

Our order follows.

AMENDED ORDER

And now, August 12, 2005, after a hearing on the Commonwealth’s request to designate Christopher Leddington as a sexually violent predator, pursuant to 42 Pa.C.S. §9795.2, and upon consideration of Leddington’s motion in limine, it is hereby ordered that:

• Leddington’s motion in limine is granted and the opinions of the Commonwealth’s expert pertaining to allegations of threats and an assault of a second victim are stricken;
• The Commonwealth has proven by clear and convincing evidence that Christopher Leddington is a sexually violent predator.

Further, Christopher Leddington is hereby advised of, and put on notice of all verification registration and compliance requirements set out in 42 Pa.C.S. §9795.3, a copy of which is attached to this order.

Counsel for Christopher Leddington shall review and explain the contents and meaning of each paragraph of section 9795.3 to him, and within 10 days of the date of this order, send notification to the court and the Bucks County District Attorney’s office that this order has been complied with. Further, pursuant to 42 Pa.C.S. §9795.3(6), Leddington must also provide a written verification to the court and District Attorney’s office acknowledging that his responsibilities under 42 Pa.C.S. §§9795.1, 9795.2, 9795.3, 9796, and 9799.4 have been explained to him.

      . Commonwealth v. Bannigan, 60 D.&C.4th 55 (Bucks Cty. 2001).

      . Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003).

      . Dickson referred to these facts in his report. See Dickson Report, p. 2. It is unclear from the record before us which unproven allegation was contained in the probable cause affidavit and which was contained in an interview conducted by law enforcement.

      . Dickson has been a licensed psychologist for 15 years, specializing in the assessment and treatment of sexual offenders. Dickson has extensive training in this area and has been a member of the Pennsylvania Sexual Offenders Assessment Board since 1996, having conducted approximately 500 assessments. We found Dickson’s background to be impressive and his testimony credible.

      . The Commonwealth chose not to introduce into evidence any of the documents reviewed and relied upon by Dickson in reaching his conclusions.

      . We note that there were several assessment factors that Dickson opined did not apply to Leddington (e.g., section 9795.4(b)(l)(ii)— Whether the individual exceeded the means necessary to achieve the offense. We have considered these factors that do not apply to Leddington in reaching our decision.

      . The court did not provide a full definition of “testimonial” but did state that, at a minimum, police interrogations would be considered testimonial. Crawford, 124 S.Ct. at 1374. We also recognize that Crawford dealt with the introduction of hearsay as substantive evidence, which is not at issue here. However, we believe the rationale of Crawford as it applies to the right of confrontation is applicable.

      . The Commonwealth has asserted that Crawford does not apply as “the statements relied upon by the Commonwealth’s expert were not made in contemplation of prosecution.” (Commonwealth brief, p. 7.) We are hard-pressed to understand this logic when at least one of the statements at issue was contained in a probable cause affidavit, a document used in support of arrest.

      . We are cognizant of precedent requiring the trial court to include specific findings of fact regarding the assessment factors and our reasons for finding a defendant an S VP in relation to the statutory factors. See e.g., Krouse, 799 A.2d at 842. We incorporate our review of the assessment factors, in this opinion, as findings of fact.


author: DYCH, J,

text:
    DeVeaux v. City of Philadelphia

      Mary Catherine Roper, for plaintiff.

      Anne Barden, for defendant.
    July 14, 2005
   DYCH, J,

Defendants appeal from my June 14, 2005 order granting plaintiff’s emergency petition for a preliminary injunction. This opinion will supplement my memorandum which accompanied that order.

Curtis DeVeaux, employed by the City of Philadelphia as a firefighter, alleges a violation of the Pennsylvania Religious Freedom Protection Act, 71 P.S. §2402 et seq., and the Pennsylvania Constitution. Plaintiff is a practicing Muslim, and it is not disputed that his religious beliefs require him to grow a beard. On February 2,2005, he was suspended from his job without pay for refusing to shave his beard as required by Fire Department Directive no. 13.

It is believed that this is the first case in Pennsylvania which alleges a violation of the RFPA, which states in relevant part: “The General Assembly intends that all laws which it has heretofore enacted or will hereafter enact and all ordinances and regulations which have been or will be adopted by political subdivisions or executive agencies shall be construed so as to avoid the imposition of substantial burdens upon the free exercise of religion without compelling justification.” 71 P.S. §2402(2). Defendant is a “non-Commonwealth agency” as defined by the RFPA, and is therefore subject to the requirements imposed by the RFPA. 71 P.S. §2403.

After reviewing the petition, answer, stipulated evidence, briefs of counsel, and hearing oral argument, this court issued the following preliminary injunction: “Defendant City of Philadelphia is enjoined from terminating the employment of plaintiff Curtis DeVeaux or diminishing his compensation or benefits during the pendency of this litigation or until further action of this court.”

In so ruling, this court found that DeVeaux has established a strong likelihood of success on the merits. Under the RFPA, Fire Department Directive no. 13 shall be construed so as to avoid the imposition of substantial burdens upon the free exercise of religion without compelling justification. It appears to be undisputed, and in any event the record clearly establishes, that Fire Department Directive no. 13 imposes a substantial burden upon plaintiffs free exercise of religion by, inter alia, forcing him to choose between his religion and his job.

However, the record does not clearly demonstrate that the City’s safety justification is compelling. In reaching this conclusion, this court examined the record in its entirety. At least one study has shown that there is, “no statistically significant difference between the protection factors achieved by the bearded and clean shaven workers [using positive-pressure masks],” and a survey of research on the topic has caused one commentator to conclude that, “the answer remains ambiguous.”

In addition, this court considered the assertions of defendant’s experts, who aver that facial hair will prevent a good respirator seal, and that, “there is no less restrictive measure for safe respirator use than to enforce a policy where beards are not allowed ....” See defendant’s offer of proof at pp. 2-3. The City has also presented evidence of NFPA and OSHA guidelines, among others, which forbid the use of respirators with facial hair. It appears that Fire Department Directive no. 13, however, was introduced when the fire department used “negative flow” respirators. Conversely, at least one metropolitan fire department — Washington, D.C. — has relaxed its no-beard policy after litigation by a group of Muslim firefighters. Plaintiff’s expert professes that “ [p] ositive-pressure [masks] may be utilized safely by bearded firefighters ... so long as the facepiece-to-face fit is adequate.” See plaintiff’s offer of proof at p.

It is important to note that a preliminary injunction is a provisional remedy that may be granted before a hearing on the merits. Standard Pennsylvania Practice (2d ed.), Injunctions §83:4. (emphasis added) Its purpose or function is generally to afford preventive relief by preserving the status quo, either as it presently exists or previously existed before the acts complained of, where there is an urgent necessity of preserving the status quo until the merits of the case can be heard and determined. Standard Pennsylvania Practice (2d ed.), Injunctions §83:5. Limitations on the free exercise of religion inflict irreparable injury. Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002). Plaintiff would suffer immediate and irreparable harm that cannot be compensated by money damages if this injunction did not issue.

Moreover, greater injury would result if this petition was denied than if injunctive relief was granted, and the instant relief restored the parties to the status quo as it existed prior to the alleged wrongful conduct. The injunction that issued was tailored to alleviate defendant’s safety concerns until they are heard on the merits by a trial court by providing only that defendant may not terminate plaintiff’s employment or benefits. It does not order the City to use DeVeaux to fight fires. Thus, the alleged wrongful conduct by defendant City of Philadelphia is manifest and the instant relief was suited to abate it.

For the foregoing reasons, this court properly exercised its discretion in fashioning the preliminary injunction issued on June 14, 2005, and should be affirmed.

      . In their 1925(b) “Statement of matters complained of on appeal,” defendant avers that, “the court further erred in compelling the City to have the motion submitted for decision without a hearing.” The City’s allegation that a hearing was not held is erroneous. On the contrary, this court properly exercised its discretion in holding an evidentiary hearing under Pa.R.C.P. 208.4 and Pa.R.C.P. 1531(a), by inter alia, permitting the filing of stipulated evidence, offers of proof, briefs of counsel, deposition transcripts, and hearing oral argument, before rendering its decision on the petition. The court is vested with wide latitude in determining what types of evidence it will accept in a preliminary injunction hearing. Goodrich-Amram §1531 (a):9 is instructive: “In addition to any affidavits that may be filed, the court, in determining whether to issue a preliminary [...] injunction, may rely on the averments of the pleadings or petition and any other proof which the court may require, including depositions.” Goodrich-Amram §1531 (a):9. (citations omitted)

      . In their 1925(b) “Statement ofmatters complained of on appeal,” defendant avers that, “This court erred in finding that Mr. DeVeaux met the requirements for obtaining a preliminary injunction. DeVeaux’s likelihood of success on the merits is negligible.” See defendant’s 1925(b) statement of matters complained of on appeal at p. 1.

      . The RFPA defines “substantial burden” as an agency action which does any of the following:
      “(1) Significantly constrains or inhibits conduct or expression mandated by a person’s sincerely held religious beliefs.
      “(2) Significantly curtails a person’s ability to express adherence to the person’s religious faith.
      “(3) Denies a person a reasonable opportunity to engage in activities which are fundamental to the person’s religion.
      “(4) Compels conduct or expression which violates a specific tenet of a person’s religious faith.” 71 P.S. §2403.
      Plaintiff claims that defendant’s enforcement of directive no. 13 substantially burdens plaintiff’s exercise of his faith under subsection (1), (2) and (4) above. See memorandum of law in support ofplaintiff’s emergency petition for temporary restraining order and preliminary injunction, p. 11.

      . As mentioned previously, it is believed that this is the first case in Pennsylvania which alleges a violation of the RFPA. Thus, without guidance from prior precedents, this court considered the plain meaning of the statute. Absent ambiguity, the plain meaning of the statute controls. See In re Canvass of Absentee Ballots of Nov. 4, 2003, 577 Pa. 231, 843 A.2d 1223 (2004); Sternlicht v. Sternlicht, 2005 Pa. LEXIS 1291 (Pa. 2005).

      . There is some prior case law concerning the safety justification of facial hair regulations of firefighters. These cases involve so-called “negative-pressure” facial masks, as opposed to the more modern “positive-pressure” facepiece at issue in this case. It should be noted that none of the complaining parties in these cases asserted a violation of their free exercise of religion. See Kennedy v. District of Columbia, 654 A.2d 847 (D.C. 1994) (holding that the district’s facial hair regulation was discriminatory as applied to the firefighter, although the department was not precluded from, “promulgating a reasonable grooming regulation, equally applied to all, requiring beards to be neatly trimmed”) see also, Quinn v. Mascare, 425 U.S. 560 (U.S. 1976) (Although the Supreme Court did not reach the merits of the respondent’s challenge to the constitutionality of the hair regulation, the Court of Appeals did note that the regulation “does not appear to be co-extensive with the need for safe and efficient use of gas masks and, if that is the sole justification, might well be more narrowly drawn.”); see also, Kelley v. Johnson, 425 U.S. 238 (U.S. 1976) (upholding the challenged facial hair regulation of policemen under rational basis review).

      . See deposition of Richard Sabochinset, defendant’s exhibit G, Facial Hair and Respirator Fit: A Review ofthe Literature, Stobbe, A. Ind. Hyg. Assoc. J. 49, p. 203, April 1988.

      . See id.

      . See defendant’s response in opposition to plaintiff’s motion for a preliminary injunction, exhibit C.

      . See id., exhibit B.

      . See memorandum of law in support of plaintiff’s emergency petition for temporary restraining order and preliminary injunction, p. 5.

      . See defendant’s response in opposition to plaintiff’s motion for a preliminary injunction, p. 10.

      . Defendant contends that, “this court erred in accepting plaintiff’s expert as qualified.” See defendant’s 1925(b) statement of matters complained of on appeal at p. 2. In this court’s view, plaintiff’s expert, Mr. Santora, is qualified, having held several positions with the New York Fire Department during his 40 and a half years of service, including deputy chief (14 years) and chief of safety (13 years). In addition he is a member of the National Fire Prevention Association (NFPA) (including a stint as chairman of the NFPA 1981 Standard on Open-Circuit Self-Contained Breathing Apparatus for the Fire Service Committee, and as a representative on other NFPA committees relating to firefighter safety). See plaintiff’s offer of proof for preliminary injunction hearing at p. 2. It should be noted that plaintiff also produces the expert testimony of a tenured fire department chief — Commissioner Lloyd Ayers of the Philadelphia Fire Department, who has held every rank in the fire department during his more than 30 years of service for the community. See defendant’s offer of proof for preliminary injunction hearing at p. 2. However, even if plaintiff’s expert was not qualified, the City still has not shown its safety justification to be compelling.


author: KWIDIS, J,

text:
    Liggett v. Pennsylvania’s Northern Lights Shoppers City Inc.

      Thomas R. Matvey, for plaintiffs.

      Dennis F. Wolford and Bernard J. Kelly, for defendants, Pennsylvania’s Northern Lights Shoppers City Inc.

      George Kachulis, for defendants, Morini Foods Services and Northern Lights Giant Eagle.

      Miles A. Kirshner, for defendant, TABS Inc.
    June 28, 2005

      Morini Food Services & Northern Lights Giant Eagle were dismissed from case by stipulation of counsel.

   KWIDIS, J,

FACTS

Before the court is a motion for summary judgment filed on behalf of the defendants, Pennsylvania’s Northern Lights Shoppers City and Casto-Skilken Group, and the additional defendant, TABS Inc., concerning a slip/ fall incident that occurred on January 7,2002, in the parking lot of the Northern Lights Shopping Center, Baden, Beaver County, PA.

The defendant’s expert report states that there had been light snowfalls from December 25, 2001, through January 2, 2002, that left about an inch of accumulation on exposed undisturbed ground in the Baden area. Climbing temperatures reduced the accumulations to near zero by daybreak of January 6,2002. Around 9 a.m. on January 6, 2002, it began to snow, leaving about five inches of snow before tapering to flurries during the morning of the seventh. The plaintiff, Cassandra Ligget, entered the parking area of the shopping center on January 7, 2002, around 6:15 p.m. After exiting her vehicle, she took approximately seven steps and then slipped and fell to the ground. At the time of her fall, there were only traces of snow left in the parking lot in between some of the parking stalls, and it appeared as if the parking lot had been plowed by the additional defendant, TABS Inc., the snow removal contractor employed to clear the subject lot.

In his report, the defendant’s expert explained the presence of the ice and snow as being a result of several factors: (1) run-off carried salt dilutions to drains and elsewhere; (2) departing automobiles carried some of the salt solution away; (3) arriving automobiles carried in snow that diluted the remaining salt solution. The net result, in his opinion, which caused the area where the plaintiff fell to freeze, was that temperatures dropped approaching the evening hours.

The plaintiff testified that she slipped and fell on a smooth localized patch of ice that was approximately six feet by six feet. She described the patch of ice as a thin sheet of ice.

STANDARD OF REVIEW

Summary judgment is properly granted after the close of all relevant pleadings “whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report,” and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2(1); Ovitsky v. Capital City Economic Development Corp., 846 A.2d 124, 125 (Pa. Super. 2004). The party moving for summary judgment shoulders the burden of proving the nonexistence of any genuine issue of material fact. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000). “The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Kafando, 764 A.2d at 61. The moving party’s oral testimony alone, even if uncontradicted, is insufficient to establish the absence of any genuine issues of material fact. Penn Center House Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989) (citing Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932)).

ANALYSIS

The issue before the court is whether the “hills and ridges” doctrine should be applied based on the foregoing facts and summary judgment should be granted in favor of the defendants.

The “hills and ridges” doctrine provides that an owner or occupier of land is not liable for falls occurring on his or her property where generally slippery conditions exist, unless the owner has “permitted the ice and snow to unreasonably accumulate in ridges or elevations.” Morin v. Traveler’s Rest Motel Inc., 704 A.2d 1085, 1087 (Pa. Super. 1997); Harmotta v. Bender, 411 Pa. Super. 371, 601 A.2d 837 (1992), appeal denied, 530 Pa. 655, 608 A.2d 30 (1992). The policy behind the doctrine is clear: to require that one’s walks should always be free of ice and snow would impose an impossible burden in view of the climatic conditions in this hemisphere. Wentz v. Pennswood Apartments, 359 Pa. Super. 1, 5, 518 A.2d 314, 316 (1986).

Where the doctrine is applicable, a plaintiff must prove: “(1) that snow and ice had accumulated on the sidewalk 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 (1962). (citations omitted)

The “hills and ridges” doctrine applies only where there is a generally slippery condition at the time of an accident. Id. The doctrine may be applied only in cases where the snow and ice complained of are the result of a recent snowfall that results in an “entirely natural accumulation.” Harmotta v. Bender, supra at 380, 601 A.2d at 841. Thus, proof of “hills and ridges” is not necessary when the hazard is not the result of a generally slippery condition, but originates from a localized patch of ice. Id. at 381, 601 A.2d at 841 (citing Tonik v. Apex Garages Inc., 442 Pa. 373, 275 A.2d 296 (1971)).

In the instant case, this court believes that the plaintiff has raised significant material issues of fact to preclude the entry of summary judgment.

The law clearly states that the condition complained of must be the result of a natural accumulation resulting from a recent snowfall. While the defendants have offered evidence through their expert report that there was significant snowfall on the day before the incident, as well as a dusting on the day of the accident, the defendant’s expert admits that the patch of ice was not due to a natural accumulation.

In Bacsick v. Barnes, 234 Pa. Super. 616, 341 A.2d 157 (1975), the Superior Court dealt with a factually analogous situation. In Bacsick, approximately two days before the slip and fall incident, it had snowed between 12 to 15 inches. Some of the inhabitants of the town where the accident occurred had removed the snow from their walkways and parking lots while others had not. This particular accident occurred as a result of a snow bank having been placed on the sidewalk. This snow bank forced the plaintiff to walk along a path on the street made by earlier pedestrians. The plaintiff then slipped and was struck by a car. The court found the driver of the car free of negligence and found the owner of the store, as well as the municipality, negligent. The defendants appealed, however, on the grounds that the plaintiff had not established the existence of “hills and ridges” or elevations of ice and snow which had been allowed to remain for an unreasonable amount of time, but only a generally slippery condition which was insufficient to impose liability on appellees. Id. at 619-21, 341 A.2d at 160.

In finding for the plaintiff, the Superior Court held: walk was, in large part, of artificial origin; it was apparently deposited as the result of the plowing of the street by the city and state snowplows.” Bacsick v. Barnes, 234 Pa. Super. 616, 621-22, 341 A.2d 157, 160. (emphasis in original)

“It appears that the ‘hills and ridges’ doctrine may be applied only in cases where the snow and ice complained of are the result of an entirely natural accumulation, following a recent snowfall. Thus, the rule of Rinaldi v. Levine, supra, is predicated on the assumption that ‘[t]hese formations are natural phenomena incidental to our climate.’ Rinaldi v. Levine, supra at 78, 176 A.2d at 625, quoting Whitton v. H. A. Gable Co., supra at 431, 200 A. at 645. (emphasis supplied) In the instant case, evidence was received tending to prove that the snow bank which blocked Mrs. Bacsick’s access to the side-

Following the logic applied by the Superior Court, this court believes that the localized ice patch that the plaintiff slipped on was not the result of a natural accumulation. The defendant’s own expert has offered evidence supporting such a conclusion. In his report, the expert meteorologist states,

“If TABS had plowed and salted, why did ice exist where Mrs. Ligget fell? There is a simple explanation. The salt originally melted remnant snow that plowing alone can’t normally remove, leaving wet areas throughout the parking lot during most of the day. Run-off carried some of the salt solution to drains and elsewhere. Departing automobiles carried some of the salt solution away. Arriving automobiles carried in some fresh snow that diluted the remaining solution, and even dripped additional water into the parking lot. The net result was diluted wetness that could freeze more easily, and the setting of the sun triggered a freezing episode that had existed for only a short time before the incident.”

The defendant’s expert’s explanation of how this particular patch of ice formed indicates that it was not the result of a natural accumulation, therefore the “hills and ridges” doctrine is inapplicable to the facts of this case.

Furthermore, in Tonik v. Apex Garages Inc., 442 Pa. 373, 376, 275 A.2d 296, 298 (1971), the court held where a localized patch of ice existed at the place where pedestrian fell on the sidewalk which was otherwise free of ice and snow, pedestrian was not required to establish the existence of “hills and ridges” in order to recover from occupant of adjoining property for injuries sustained in the fall.

It is clear from evidence offered by both sides that the parking lot was generally free from snow with the exception of a few areas between stalls. Also, both sides describe the ice as being isolated. Therefore, in light of the rationale handed down by the court in Tonik, this court further believes that a motion for summary judgment based on the “hills and ridges” doctrine would be inappropriate.

ORDER

And now, June 28, 2005, after argument court on the motions of summary judgment filed by the original defendant, Pennsylvania’s Northern Lights Shoppers City Inc., Casto-Skilken Group, and the additional defendant, TABS Inc., it is hereby ordered and directed that said motions for summary judgment are denied.

Pursuant to the stipulation of counsel, it is further ordered and directed that the co-original defendant, Morini Food Service Inc., t/d/b/a Northern Lights Giant Eagle and the co-additional defendant, Total Asphalt Building Services Inc., are dismissed from this cause of action. The prothonotary is ordered to amend the caption accordingly.