source: Caselaw Access Project

author: SHEPPARD JR., J.,

license: Public Domain

text:
    GoInternet.net Inc. v. SBC Communications Inc.

      Steven E. Angstreich, for plaintiffs.

      Albert H. Manwaring and Stuart D. Lurie, for defendants.
    December 17, 2003
   SHEPPARD JR., J.,

Before the court are the preliminary objections of defendant, SBC Communications Inc., to the amended complaint. Plaintiffs provided internet services to telephone customers of SBC and its subsidiaries in states other than Pennsylvania. Plaintiffs allege that they entered into contracts with certain defendants (the billing aggregators) pursuant to which the billing aggregators were to forward to SBC and its subsidiaries the charges that their customers incurred for internet services provided by plaintiffs. Pursuant to separate contracts between SBC and the billing aggregators, SBC’s subsidiaries were to bill those charges to their customers.

On or about February 1, 2003, SBC and/or its subsidiaries ceased billing, and refused to bill, their customers for those services provided by plaintiffs. Plaintiffs and SBC attempted to negotiate a resolution of their differences, but were unsuccessful. Plaintiffs then filed this action against SBC alleging that:

(1) SBC tortiously interfered with plaintiffs’ contracts with the billing aggregators;

(2) SBC tortiously interfered with plaintiffs’ prospective business relations with plaintiffs’ customers who were also customers of SBC’s subsidiaries;

(3) SBC breached its contracts with the billing aggregators (to which contracts plaintiffs were third-party beneficiaries) by refusing to bill its subsidiaries’ customers for plaintiffs’ services;

(4) SBC unfairly competed with plaintiffs by advertising its own internet services to plaintiffs’ customers who were also customers of SBC’s subsidiaries;

(5) SBC intentionally and negligently misrepresented to plaintiffs that SBC would recommence billing plaintiffs’ charges to their shared customers once the parties entered into a settlement agreement; and

(6) SBC should be equitably estopped from denying its representation that it would recommence billing plaintiffs’ charges to their shared customers.

SBC objects to all claims against it on the ground that it is not subject to either general or specific personal jurisdiction in Pennsylvania. Further, SBC objects to the breach of contract and the intentional and negligent misrepresentation claims on the basis that plaintiffs have failed to state claims upon which relief can be granted.

I. PENNSYLVANIA DOES NOT HAVE GENERAL PERSONAL JURISDICTION OVER SBC

Pennsylvania courts may exercise general jurisdiction over a corporate defendant when that corporation carries on “a continuous and systematic part of its general business within” Pennsylvania. 42 Pa.C.S. §5301 (a)(2)(iii). “Since there is no established legal test to determine whether a corporation’s activities are sufficiently continuous and systematic to warrant the exercise of general jurisdiction, a court engages in a factual analysis that focuses on the overall nature of the activity, rather than its quantitative character.” Bizarre Foods Inc. v. Premium Foods Inc., 2003 WL 21120690 *4 (E.D. Pa. May 16, 2003).

A. SBC’s Subsidiary Does Not Subject It To Jurisdiction in Pennsylvania

SBC is a Delaware corporation with its principal place of business in Texas. Plaintiffs do not allege that SBC engages in any activities that normally constitute continuous and systematic contact for jurisdictional purposes. Plaintiffs do not contend that SBC maintains offices in Pennsylvania, has agents or employees in Pennsylvania, pays taxes in Pennsylvania, is registered with the Commonwealth to conduct business in Pennsylvania, and/or owns or leases property in Pennsylvania. See Efford v. The Jockey Club, 796 A.2d 370, 375 (Pa. Super. 2002). However, plaintiffs do allege that one of SBC’s subsidiaries, SBC Telecom, which is not otherwise involved in this litigation, engages in continuous and systematic business in Pennsylvania, which SBC does not dispute.

“Generally a foreign corporation is not subject to the jurisdiction of [Pennsylvania courts] merely because of its ownership of the shares of stock of a subsidiary doing business in [Pennsylvania].” Rose v. Continental Aktiengesellschaft, 2001 WL 236738 *3 (E.D. Pa. Mar. 2, 2001). “That the companies may have a close relationship or may coordinate and cooperate ... is not sufficient to impute forum contacts.” Id.

“Plaintiffs rely on the inclusion in [SBC’s] consolidated annual report of financial information on its subsidiaries, the listing on [SBC’s] internet site of information about its subsidiaries; [SBC’s] ownership of [SBC Telecom’s] stock;... and sales by [SBC Telecom]... of [SBC] products in Pennsylvania. These factors are insufficient to make the requisite showing for imputation of forum contacts for purposes of personal jurisdiction.” Id. (emphasis added) See also, Botwinick v. Credit Ex change Inc., 419 Pa. 65, 213 A.2d 349 (1965) (New York parent not subject to jurisdiction in Pennsylvania even though its similarly named, wholly owned subsidiary was a Pennsylvania corporation and the two had a close business relationship).

The activities of SBC’s subsidiary, SBC Telecom, do not confer general jurisdiction over SBC in Pennsylvania based on an alter-ego theory of jurisdiction.

B. SBC’s Website Does Not Subject It to Jurisdiction in Pennsylvania

Plaintiffs also allege that SBC maintains a “worldwide web site” for both general advertising and sales purposes. Pennsylvania courts “addressing the relationship between personal jurisdiction and the foreign [defendant’s] internet web sites ha[ve] established a ‘sliding scale’ of jurisdiction based largely on the degree and type of interactivity on the web site.” Efford v. The Jockey Club, 796 A.2d 370, 374 (Pa. Super. 2002). With respect to “interactive web sites where the user can exchange information with the host computer ... the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the web site.” Id. “[T]he establishment of a web site through which customers can order products does not, on its own, suffice to establish general jurisdiction” unless the web site is “targeted specifically to reach out to Pennsylvanians.” Molnlycke Health Care AB v. Dumex Medical Surgical Products Ltd., 64 F. Supp.2d 448, 451-52 (E.D. Pa. 1999).

SBC’s web site is accessible to Pennsylvania residents, as well as everyone else with internet access. The web site is not targeted to Pennsylvania residents, however Pennsylvania residents can purchase a limited number of goods and services from a few of SBC’s subsidiaries through their connected web sites. If the SBC web site targets any particular region, it is targeted towards those states in which SBC’s other subsidiaries conduct their business, rather than Pennsylvania. Therefore, SBC’s web site does not subject SBC to jurisdiction in Pennsylvania.

C. SBC’s Advertising Does Not Subject It to Jurisdiction in Pennsylvania

Plaintiffs further allege that SBC has undertaken an advertising campaign to sell internet service nationwide, including in Pennsylvania. “National advertising ... is not a basis for personal jurisdiction.” Rose v. Continental Aktiengesellschaft, 2001 WL236738 *2 (E.D. Pa. Mar. 2, 2001). “[A]n advertising or other business campaign aimed at selling a particular item .. . cannot be deemed to be purposefully directed at Pennsylvania even if some Pennsylvania residents respond to that campaign.” Molnlycke Health Care AB v. Dumex Medical Surgical Products Ltd., 64 F. Supp.2d 448, 451-52 (E.D. Pa. 1999). Since “[t]here is no indication that Pennsylvania is an essential part of the conduct of [defendant’s advertised internet] business,” SBC’s advertising does not subject it to general jurisdiction in Pennsylvania. Id.

II. PENNSYLVANIA DOES NOT HAVE SPECIFIC PERSONAL JURISDICTION OVER SBC

Plaintiffs’ actionable claims against SBC all sound in tort, so the tort provisions of Pennsylvania’s long-arm statute must apply in order for Pennsylvania to assert specific personal jurisdiction over SBC. Since plaintiffs do not allege that SBC committed any tortious activities in Pennsylvania, the only basis for asserting specific jurisdiction in this case is if SBC “caus[ed] harm or tortious injury in [Pennsylvania] by an act or omission outside [Pennsylvania].” 42 Pa.C.S. §5322(a)(4). In order to satisfy this statute and the requirements of due process, plaintiffs must “show the following to allow for specific jurisdiction over a non-resident defendant:

“(1) the defendant committed an intentional tort;
“(2) [Pennsylvania] was the focal point of the harm suffered by the plaintiff as a result of the tort;
“(3) [Pennsylvania] was the focal point of the tortious activity in the sense that the tort[ious conduct] was expressly aimed at the forum.” American Business Financial Services Inc. v. First Union National Bank, 2002 WL 433735 *8 (Phila. Co. Mar. 5, 2002). See also, IMO Industries Inc. v. Kiekert AG, 155 F.3d 254 (3d Cir. 1998) (tortious interference that caused harm to NJ plaintiff was committed in NY and Italy and therefore did not confer specific jurisdiction in NJ).

“While the defendant’s knowledge that the plaintiff is located in [Pennsylvania] is essential . . . such knowledge alone is insufficient to show that the defendant specifically targeted its conduct toward the forum.” American Business, 2001 WL 433735 *8. See also, IMO Industries, 155 F.3d at 263 (“the mere allegation, that the plaintiff feels the effect of the defendant’s tortious conduct in [Pennsylvania] because the plaintiff is located there, is insufficient” to establish specific jurisdiction over the defendant).

The court must determine whether specific jurisdiction exists with respect to each claim brought against SBC because it is possible that the court will have jurisdiction with respect to some, but not all, of the claims. See Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001). In this case, however, the court lacks specific jurisdiction over SBC with respect to all of the plaintiffs’ remaining claims against it.

A. Tortious Interference with Existing and Prospective Business Relations (Counts I and II)

Plaintiffs allege that SBC tortiously interfered with plaintiffs’ contracts with the billing aggregators, in that SBC refused to bill its customers for plaintiffs’ services thereby causing the billing aggregators not to perform the contract. Plaintiffs also allege that SBC tortiously interfered with plaintiffs’ contracts with their customers by refusing to bill the customers for plaintiffs’ services. All of the parties’ shared customers reside outside of Pennsylvania, and used plaintiffs’ internet services outside of Pennsylvania, and the services were billed to SBC by the billing aggregators outside of Pennsylvania, and were billed by SBC and its subsidiaries to the customers in states other than Pennsylvania. In other words, the business relationships with which defendant allegedly interfered existed outside of Pennsylvania, although the harm caused by the interference was felt by plaintiffs in part in Pennsylvania because that is where plaintiffs are located.

“Foreseeability of harm within [Pennsylvania] must be accompanied by conduct directed at [Pennsylvania] in order for the defendant to reasonably anticipate being haled into [Pennsylvania’s] courts. There is a critical difference between an act which has an effect in the forum and one directed at the forum itself. . . Standing alone, the allegation that tortious conduct outside Pennsylvania forseeably caused harm inside Pennsylvania is simply not enough to alert a reasonable person that he might be haled into a Pennsylvania court.” Surgical Laser Technologies Inc. v. C.R. Bard Inc., 921 F. Supp. 281 (E.D. Pa. 1996) (tortious interference that caused harm to PA plaintiff was committed in India so it did not confer specific jurisdiction). See also, Remick v. Manfredy, 238 F.3d 248, 260 (3d Cir. 2001) (where the contract with which defendant interfered was being, or was to be, performed in Pennsylvania, then specific jurisdiction over the defendant with respect to a tortious interference claim was appropriate); Sudofsky v. JDC Inc., 2003 WL 22358448 *4 (E.D. Pa. Sept. 8, 2003) (where none of the defendant’s alleged interfering activities took place in Pennsylvania, defendant was not subject to specific jurisdiction in Pennsylvania, even though plaintiffs resided there and performed at least part of the subject contract within Pennsylvania).

Thus, SBC’s alleged interference with contracts that were to be performed outside of Pennsylvania does not subject it to specific jurisdiction in Pennsylvania with respect to plaintiffs’ tortious interference claims.

B. Unfair Competition (Count TV)

Plaintiffs allege that SBC unfairly competed with them by advertising SBC’s (or its subsidiaries’) competing internet service to plaintiffs’ customers in their bills from SBC’s subsidiaries. All of such competing activities took place outside of Pennsylvania, in the other states where SBC’s subsidiaries do business, so such activities do not serve as a basis for jurisdiction in Pennsylvania.

Although one of SBC’s subsidiaries allegedly advertises its competing internet access in Pennsylvania, plaintiffs’ unfair competition claim is based on SBC’s Texas billing practices, not its Pennsylvania advertising practices. “Only those forum contacts related to plaintiffs’] cause of action are relevant to [the specific jurisdiction] analysis.” Surgical Laser Technologies Inc. v. C.R. Bard Inc., 921 F. Supp 281 (E.D. Pa. 1996). See IMO Industries Inc. v. Kiekert AG, 155 F.3d 254, 265 (3d Cir. 1998). Therefore, the advertising that SBC’s subsidiary does in Pennsylvania does not convey specific jurisdiction over SBC in Pennsylvania with respect to plaintiffs’ unfair competition claim.

C. Intentional Misrepresentation and Equitable Estoppel (Counts V and VIII)

Plaintiffs allege that SBC promised plaintiffs that it (or its subsidiaries) would recommence billing plaintiffs’ charges to their shared customers once the parties entered into a settlement agreement. Such promises were allegedly made during the course of the parties’ settlement discussions in person (in Texas) and over the phone (in Texas, Illinois, and Pennsylvania). A few phone calls and/or letters into the forum are not sufficient to establish minimum contacts for jurisdictional purposes where, as here, the focus of the dispute is outside the forum in those states where SBC’s subsidiaries provided phone service. See IMO Industries Inc. v. Kiekert AG, 155 F.3d 254, 268 (3d Cir. 1998); Lynch v. New Jersey Automo bile Full Insurance Underwriting Assoc., 762 F. Supp. 101, 104 (E.D. Pa. 1991) (“The placing of telephone calls or the sending of letters into the forum by a party to a contract is not sufficient.”). See also, Sudofsky v. JDC Inc., 2003 WL 22358448 *4 (E.D. Pa. Sept. 8, 2003) (a single visit to forum by defendant during which he allegedly made misrepresentations did not subject him to specific personal jurisdiction on misrepresentation claims).

Here, by engaging in, but ultimately terminating, the settlement negotiations, SBC did not “reach out beyond [Texas] and create continuing relationships and obligations with citizens of [Pennsylvania, i.e., plaintiffs,] .. . [and thereby] purposely derive benefit from [such] interstate activities.” Bizarre Foods Inc. v. Premium Foods Inc., 2003 WL 21120690 *6 (E.D. Pa. May 16, 2003) (specific jurisdiction was found where defendant entered into contract with Pennsylvania party and contract called for performance in Pennsylvania). Therefore, Pennsylvania does not have specific jurisdiction over SBC with respect to claims arising out of the promises SBC made during its settlement discussions with plaintiffs.

III. FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

A. Breach of Contract Claim (Count III)

Plaintiffs allege that they are third-party beneficiaries of SBC’s contract with the billing aggregators and, as a result, that they may bring a claim for breach of that contract against SBC. SBC argues that plaintiffs do not have standing to bring a claim against SBC for breach of SBC’s contracts with the billing aggregators.

Under Texas law, “[a] third party may recover on a contract made by other parties only if the parties intended to secure some benefit to that third party, and only if the parties entered into the contract directly for the third party’s benefit. The intention to contract or confer a direct benefit to a third party must be clearly and fully spelled out or enforcement by the third party must be denied.” Carson Energy Inc. v. Riverway Bank, 100 S.W.2d 591, 599 (Tex. App. 2003). Likewise under Pennsylvania law, “a party becomes a third party beneficiary only where both parties to the contract express an intention to benefit the third party in the contract itself . . . unless the circumstances are so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” Scarpitti v. Weborg, 530 Pa. 366, 372-73, 609 A.2d 147, 149 (1992) (emphasis in original) citing Restatement (Second) of Contracts §302 (1981).

The sample of the billing aggregators’ contract with SBC attached to the amended complaint does not expressly state that plaintiffs are intended third-party beneficiaries of such contract. Instead, the contract expressly states that plaintiffs are not third-party beneficiaries of that contract. See amended complaint, exhibit 6, ¶16.0. Therefore, plaintiffs lack standing to bring a claim for breach of such contracts, and Count III of the complaint must be dismissed.

B. Fraud and Negligent Misrepresentation (Count VI)

Plaintiffs allege that SBC falsely promised plaintiffs that it (or its subsidiaries) would recommence billing plaintiffs’ charges to their shared customers once the parties entered into a settlement agreement. The parties do not agree as to whether the alleged misrepresentation claims are governed by Texas or Pennsylvania law. Under Texas law, a promise to perform in the future may be actionable fraud if the party making the promise had no intention of keeping the promise at the time it was made. See Spoljaric v. Percival Tours Inc., 708 S.W.2d 432, 434 (Tex. 1986). Under Pennsylvania law, “it is well established that a cause of action for fraud must allege a misrepresentation of a past or present material fact... a promise to do something in the future ... is not a proper basis for a cause of action for fraud.” Krause v. Great Lakes Holdings Inc., 387 Pa. Super. 56, 67-68, 563 A.2d 1182, 1187 (1989). Because the parties have not briefed the issue of which state’s law applies, the court does not decide that issue and would allow the fraud claim to stand.

However, the court will dismiss plaintiffs’ negligent misrepresentation claim, which is based on the same promise of future performance, because such a claim is not actionable under either Pennsylvania or Texas law. See Creative Dimensions in Management Inc. v. Thomas Group Inc., 1999 WL 225887 *2 (E.D. Pa. Apr. 16, 1999) (Texas law); Krause, 563 A.2d 1182 (Pennsylvania law); Barnett v. Legacy Bank of Texas, 2003 WL 22358578 *8 (Tex. App. Oct. 16, 2003) (Texas law).

CONCLUSION

In summary, then, SBC’s preliminary objections to the amended complaint are sustained and the action as against SBC is dismissed. This court will enter a contemporaneous order consistent with this opinion.

ORDER

And now, December 17, 2003, upon consideration of the preliminary objections of defendant, SBC Communications Inc., to the amended complaint, the response in opposition, the respective memoranda, all other matters of record, and in accord with the contemporaneous opinion, it is ordered that said preliminary objections are sustained as follows:

“(1) Counts I, II, IV, V, and VIII of plaintiffs’ amended complaint are dismissed because this court lacks personal jurisdiction over SBC Communications Inc. with respect to those claims;
“(2) Count III (breach of contract) and the negligent misrepresentation claim in Count VI are dismissed for failure to state a claim upon which relief can be granted.”

      . Although plaintiffs named the billing aggregators as defendants, plaintiffs apparently have not effected service of process on them. As a result this opinion will address the issues as they pertain to SBC, only.

      . Plaintiffs originally brought their claims against several of SBC’s subsidiaries, but this court dismissed those subsidiaries for lack of personal jurisdiction. In their amended complaint, plaintiffs have simply repled their claims against SBC’s subsidiaries as claims against the parent, SBC.

      . Plaintiffs also assert claims for breach of contract and specific performance against the billing aggregators.

      . Plaintiffs allege that SBC has reserved its name in Pennsylvania for future use. The possibility that SBC may do business here in the future does not give this court present general personal jurisdiction over SBC.

      . But see Directory Dividends Inc. v. SBC Communications Inc., 2003 WL 21961448 (E.D. Pa. Jul. 2, 2003) (finding SBC subject to jurisdiction in Pennsylvania where three of its co-defendant subsidiaries had consented to Pennsylvania jurisdiction and parent and subsidiaries had a unified marketing image, or brand).

      . The SBC subsidiaries that plaintiffs originally sued provide local telephone service in Texas, California, Nevada, Illinois, Indiana, Michigan, Ohio, Wisconsin, Arkansas, Missouri, Oklahoma and Connecticut, but not in Pennsylvania. Plaintiffs also claim that SBC’s subsidiary (and alleged alter-ego) SBC Telecom offers products and services in 20 states, including Pennsylvania.

      . But see Directory Dividends Inc. v. SBC Communications Inc., 2003 WL 21961448 (E.D. Pa. Jul. 2, 2003) (“The ability of Pennsylvania residents to purchase SBC products and services for use in Pennsylvania over the SBC web site subjects SBC to the jurisdiction of this court.”).

      . Cf. Gavigan v. Walt Disney World Co., 646 F. Supp. 786 (E.D. Pa. 1986) (General jurisdiction existed over defendant where defendant’s parent and sister organizations regularly advertised for the benefit of defendant on Philadelphia television stations and in Philadelphia newspapers, appeared in Philadelphia and bestowed an honorarium on Philadelphia mayor, and engaged in promotional campaign at Philadelphia department store.).

      . Plaintiffs’ breach of contract claim must be dismissed for failure to state a claim. See section III A., infra.

      . The parties do not agree as to the law that applies to plaintiffs’ claims. SBC claims Texas law applies, and plaintiffs argue that Pennsylvania law applies. With respect to the third-party beneficiary issue, there is no substantive conflict between the two states’ laws.

      . However, in light of the finding that this court lacks jurisdiction, the fraud claim must also be dismissed.


author: KISTLER, J.,

text:
    Commonwealth v. Killinger

      C.P. of Centre County,
    no. 2003-1339.

      J. Karen Arnold, for Commonwealth.

      David Crowley, for defendant.
    December 31, 2003
   KISTLER, J.,

Presently before the court is the defendant’s omnibus pretrial motion in the form of a motion to dismiss prosecution as unconstitutionally punitive.

FACTUAL BACKGROUND

(1) Petitioner was on parole in Centre County for a predicate offense under Megan’s Law and was required to register an address with the state police and notify them within 10 days of changing the address.

(2) Petitioner’s county parole was supervised by Centre County Probation Officer Jeremy Packer.

(3) Upon his release from incarceration, petitioner’s approved residence was 133 South Allegheny Street in Bellefonte.

(4) On September 23, 2002, petitioner informed Officer Packer that he moved to 321 Bishop Street, Bellefonte, Pennsylvania.

(5) On January 8, 2003, petitioner reported to Officer Packer that he was living at 401-33 Governors Park Road in Bellefonte and had been living there since mid-November.

(6) Officer Packer then contacted the state police, specifically Trooper Sasserman, to inform them that petitioner may be a Megan’s Law violator.

(7) On the basis of the information provided by Officer Packer, Trooper Sasserman checked the state police Megan’s Law registry which showed no change of address from petitioner’s former 133 S. Allegheny Street address.

PROCEDURAL BACKGROUND

(1) On February 24, 2003, Trooper W. F. Sasserman filed a criminal complaint charging James Robert Killinger, defendant, with violating registration procedures and applicability, 42 Pa.C.S. §9795.2(a)(2)(i).

(2) At the conclusion of the July 2, 2003 preliminary hearing, District Justice Carmine Prestía bound defendant over to the Centre County Court of Common Pleas on the above-stated charge.

(3) On July 23,2003, the Commonwealth filed criminal information number 2003-1339 in which it charged defendant with two counts of violating registration procedures and applicability, 42 Pa.C.S. §9795.2 (a)(2)(i). The criminal information charges both offenses as felonies of the third degree.

(4) Defendant filed a petition for writ of habeas corpus on July 3, 2003, challenging the district justice’s holding defendant for court alleging that he was improperly bound over to the Centre County Court of Common Pleas on the charges stated above.

(5) By order dated July 3,2003, the court ordered both parties to submit briefs, and scheduled oral argument/ hearing for September 5, 2003.

(6) By opinion and order dated September 10, 2003, this court denied defendant’s petition for writ of habeas corpus.

(7) On October 6, 2003, defendant filed this omnibus pretrial motion containing a motion to dismiss prosecution as unconstitutionally punitive.

(8) Both parties have presented briefs and oral argument on this matter. As such, this matter is ripe for disposition.

DISCUSSION

On or about April 19, 2000, the Commonwealth filed criminal information 2000-506 charging defendant with corruption of minors, 18 Pa.C.S. 6301, and indecent assault, 18 Pa.C.S. 3126(a)(7). Defendant pled guilty to both charges and was subsequently sentenced in August 2000 to a term of incarceration at the Centre County Prison for the corruptions of minors charge, and to a five-year period of probation for the indecent assault charge. Pursuant to 42 Pa.C.S. §9795.1(a)(1), individuals convicted of 18 Pa.C.S. §3126 “shall be required to register with the Pennsylvania State Police for a period of 10 years.” Since defendant pled guilty to the charge of indecent assault, defendant is subject to the 10-year reporting requirement of section 9795.1 (a)(1). As such, pursuant 42 Pa.C.S. §9795.2(a)(2)(i), registration procedures and applicability, which states, “Offenders and sexually violent predators shall inform the Pennsylvania State Police within 10 days of . . . any change of residence or establishment of an additional residence or residences,” defendant was required to notify the state police within 10 days of any address change.

Defendant failed to provide the state police with the required notification within the required time period, and thus was subject to the penalty provisions of section 9795.2(d)(1). That section provides, “An individual subject to registration under section 9795.1(a) who fails to register with the Pennsylvania State Police as required in this section commits a felony of the third degree. 42 Pa.C.S. §9795.2(d)(l). It is this penalty provision defendant challenges in the instant motion. Defendant submits that this penalty provision is constitutionally infirm, and that therefore the court should dismiss the Commonwealth’s prosecution for defendant’s violation of section 9795.2(a)(2)(i) as unconstitutionally punitive. Based on the guidance provided by the recently decided Pennsylvania Supreme Court case, Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003), this court agrees.

Before addressing Williams and its application to the penalty provision at issue in defendant’s motion, the court must first dispose of the Commonwealth’s argument pertaining to the timeliness of defendant’s motion. Defendant signed a waiver of court arraignment on July 28, 2003. Pennsylvania Rule of Criminal Procedure 579 provides:

“Except as otherwise provided in these rules, the omnibus pretrial motion for relief shall be filed and served within 30 days after arraignment, unless opportunity therefor did not exist, or the defendant or defense attorney, or the attorney for the Commonwealth, was not aware of the grounds for the motion, or unless the time for filing has been extended by the court for cause shown.”

Pursuant to Rule 579, defendant should have filed his omnibus pretrial motion by August 28, 2003. However, defendant did not file the instant motion until October 6, 2003. It is the Commonwealth’s contention that no explanation for defendant’s timeliness is apparent, and that defendant’s arguments could have been addressed in a timely-filed omnibus motion. The Commonwealth therefore suggests that this court apply the deadline set by Rule 579.

This court declines to follow the Commonwealth’s suggestion. Rule 579 states that an omnibus pretrial motion be filed within 30 days after arraignment, “unless the defendant or defense attorney ... was not aware of the grounds for the motion.” Pa.R.Crim.R 579. In his motion to dismiss prosecution as unconstitutionally infirm, defendant relies on the Williams decision issued by the Pennsylvania Supreme Court on September 25,2003. The Commonwealth argues that the Williams decision contains nothing to suggest that the instant motion could not have been filed in a timely manner. The Williams court held the penalty clause, 42 Pa.C.S. §9795.2(d)(2), applicable to sexually violent predators, to be unconstitutional, but specifically declined to address the constitutionality of section 9795.2 (d)(1), the penalty provision applicable to defendant, as it was not being challenged in that case. The court, nevertheless, finds the discussion in Williams pertaining to the unconstitutionality of section 9795.2(d)(2) to be applicable to the case at bar. Thus, because grounds for defendant’s argument that section 9795.2(d)(2) were contained in the Williams decision, defendant was unable to file the instant motion prior to September 25, 2003. Thereafter, less than two weeks after the decision was issued, defendant filed the instant motion. The court deems the instant motion, as it relates to the constitutional infirmity of section 9795.2(d)(2), timely under the exception to Rule 579. However, the court declines to address defendant’s arguments that the registration provisions of Megan’s Law II violate the bill of attainder, ex post facto, and cruel and unusual punishment provisions of the United States and Pennsylvania Constitutions.

The United States Supreme Court has clarified that any judicial finding which results in punishment beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed. 435 (2000). The sexually violent predator provisions of registration of Sexual Offenders Act (Megan’s Law II) were challenged in Williams as constituting unconstitutional criminal punishment. The Williams court held that the registration, notification, and counseling requirements of Megan’s Law II were non-punitive, but that the penalties imposed under Megan’s Law II for failure of individuals deemed sexually violent predators to register and verify their residences were unconstitutionally punitive, but severable. Williams, 574 Pa. 487, 832 A.2d at 964, 985-86.

Any judicial finding which results in punishment beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed. 435 (2000). In determining whether the registration, notification, and counseling provisions of the Act applicable to sexually violent predators constituted criminal punishment the Williams court applied the two-prong test utilized by the United States Supreme Court when disposing of claims that otherwise civil or remedial legislative measures should be deemed penal for constitutional purposes. Williams, 574 Pa. 487, 832 A.2d at 971. Application of the Supreme Court’s two-prong test first requires an inquiry whether the legislature’s intent was to impose punishment. Id. If the legislature did not intend to impose punishment, a court must inquire as to whether the statutory scheme is nonetheless so punitive either in purpose or effect as to negate the legislature’s non-punitive intent. Id. To make the latter determination, the Supreme Court has used a multi-factored balancing analysis involving the “Mendoza-Martinez factors.”

Upon application of the first prong of the above test, the Williams court concluded the General Assembly’s intent in enacting Megan’s Law II was not to punish, but to promote public safety through a civil, regulatory scheme. Upon finding that the General Assembly intended the law to be civil and remedial rather than punitive, the Williams court examined the Mendoza-Martinez factors and noted that, while “neither exhaustive nor dispositive,” the list of factors has proved helpful in considering whether a civil, remedial mechanism “nevertheless provide[s] for sanctions so punitive as to transform what was clearly intended as a civil remedy into a criminal penalty.” Williams, 574 Pa. 487, 832 A.2d at 972, citing United States v. Ward, 448 U.S. at 249, 100 S.Ct. at 2641; Smith, 538 U.S. at 249, 123 S.Ct. at 1147; Commonwealth v. McGee, 560 Pa. 324, 329, 744 A.2d 754, 757 (2000) (stating that the Mendoza-Martinez factors are “useful guideposts” in determining whether prison disciplinary confinement constitutes criminal punishment); Commonwealth v. Wingait Farms, 547 Pa. 332, 340-41, 690 A.2d 222, 226 (1997) (applying Mendoza-Martinez factors in deeming civil forfeitures non-punitive). The Mendoza-Martinez factors are as follows: (1) Whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment — retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether the alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. Mendoza-Martinez, 372 U.S. at 168-69.

Despite its conclusion that the registration, notification, and counseling provisions, were not unconstitutionally punitive, the court found the penalty provisions applicable to sexually violent predators (classifying violations as felonies of the first degree and subjecting violators to mandatory minimum sentence of probation for the remainder of the individual’s lifetime or a period of incarceration of up to the individual’s lifetime) were constitutionally infirm. The Williams court stated that:

“While it is understandable that the General Assembly would wish to provide a means of enforcing its registration and address verification scheme, the method it has chosen involves recognized punitive measures (incarceration and probation) that carry a possible lifetime term. As such measures are manifestly in excess of what is needed to ensure compliance, they must be considered punitive, and thus, unconstitutional insofar as they purport to apply to ‘individuals subject to registration under section 9795.1(b)[ ](3),’ that is, sexually violent predators.” Williams, 574 Pa. 487, 832 A.2d at 985. (footnote omitted)

The Williams court dismissed the attorney general’s argument that sexually violent predator status alone could not lead to a sentence of probation or imprisonment, but that conviction of an independent substantive offense is required — namely failure to comply with the lifetime registration requirement and such conviction could only follow a criminal proceeding where the full panoply of due process protections was afforded. Id., 832 A.2d at 986. The court’s stated reason for dismissing the argument was the fact that the new substantive offense proceeded directly from the Act’s enforcement provisions, and that, furthermore, conviction would be a fairly trivial matter. Id.

Although Williams specifically declines to address the constitutionality of the penalty provision applicable to defendant in this case, 42 Pa.C.S. §9795(d)(l), it is the court’s opinion that the decision is applicable to the case at bar. Defendant submits that it would defy credulity to suggest that relatively minor sex offenders could be prosecuted for failing to register an address where sexually violent predators could not be prosecuted for the same conduct. The court agrees with the thrust of defendant’s argument.

In the case of the sexually violent predator, “[T]he acts penalty provisions provide an enforcement mechanism for the registration and verification mandates by erecting an enormous disincentive for failing to comply.” Williams, 574 Pa. 487, 832 A.2d at 986. The penalty provision applicable to the case at bar also provides an enforcement mechanism, with a disincentive for noncompliance. Although the disincentive for noncompliance is admittedly smaller (the Commonwealth has stated that sentencing would proceed as in any other criminal case) than in the case of the sexually violent predator, the disincentive is a criminal penalty nonetheless. As with the case of the sexually violent predator, the substantive offense for which conviction would subject defendant to a criminal penalty, proceeds directly from the Megan’s Law II enforcement provisions, and, as in Williams, conviction would be a trivial matter.

Although the penalty provisions were enacted to enforce remedial legislation, they constitute criminal punishment as they subject an offender to increased incarceration, a recognized punitive measure. See Herbert v. Billy, 160 F.3d 1131, 1137 (6th Cir. 1998) (An affirmative disability or restraint is “some sanction approaching the infamous punishment of imprisonment.”); Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (Increased incarceration constitutes punishment). Conviction of a charge classified as a felony of the third degree seems to be in excess of what is needed to ensure compliance with the registration and notification procedures applicable to defendant in this case.

ORDER

And now, December 31, 2003, upon consideration of the defendant’s omnibus pretrial motion in the form of a motion to dismiss prosecution as constitutionally infirm, said motion is hereby granted.

      . Defendant was on parole for the predicate offense of indecent assault, 18 Pa.C.S. §3126(a)(7).

      . Prior to argument on the instant motion, the two counts contained in criminal information number 2003-1339 were charged as felonies of the first degree. The charges also classified defendant as “an offender and/or a sexually violent predator.” The criminal information was amended at argument on the instant motion to reflect that defendant is classified as an offender, NOT sexually violent predator, and that the offenses contained in the criminal information constitute felonies of the third degree, NOT felonies of the first degree.

      . The Mendoza-Martinez factors were enumerated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963).

      . 42 Pa.C.S. §9795.2(d)(2).

      . While certain sex offenses are more egregious than others, the court does not believe that any sexual offense is minor.


text:
    Mather v. Pennsylvania State University

      C.P. of Centre County,
    no. 338.

      Todd Berkey, for plaintiff.

      James M. Horne, for defendant.
    October 16, 2003
   KISTLER, J.,

Presently before the court is the defendant’s (Pennsylvania State University, d/b/a Nittany Lion Inn, a/k/a Penn State University, d/b/a Nittany Lion Inn) motion for summary judgment.

FACTUAL BACKGROUND

(1) The defendant, Pennsylvania State University, operates and does business as the Nittany Lion Inn, a hotel and conference facility.

(2) On September 14, 1999, and at all times relevant thereto, defendant was the owner and operator of a certain real property and hotel and conference facility being the Nittany Lion Inn (defendant’s premises).

(3) On September 14, 1999, Robert Mather, plaintiff, was lawfully on defendant’s premises as a hotel guest and business invitee with the purpose of attending a conference at the facilities located on the defendant’s premises. Just before the incident on the day in question, plaintiff was walking through the atrium area of the Nittany Lion Inn on his way to the outside courtyard. (Mather deposition, p. 23 11. 1-9.) It had been raining for most of the day, but at that time the rain had stopped.

(4) As plaintiff reached out to push the bar on the door in order to open it, he slipped and fell on an accumulation of water, which existed on the floor. (Mather, p. 2311.10-14.) As a result of his fall, plaintiff sustained injuries to his left shoulder, hip, and elbow. (Id., p. 23 11. 20-24.)

(5) The area in which plaintiff fell was wet, causing his pants and various papers that he was holding to become soaked with water. (Id., p. 2411. 15-18.) As plaintiff sat on the ground, he became aware that water was dripping from the ceiling onto his head. (Id., p. 2111. 1-4.)

(6) After plaintiff fell, inspection of the area, including partial removal of the ceiling tiles and roof covering, revealed that a leak in the relatively new roof was the cause of the water dripping onto the floor where plaintiff fell.

PROCEDURAL BACKGROUND

(1) As a result of the injuries plaintiff sustained on defendant’s premises on September 14, 1999, plaintiff and Janet Mather (plaintiff-wife) filed their complaint against defendant on August 22, 2001.

(2) Plaintiffs assert two counts of liability in their complaint against defendant. In Count I of the complaint, plaintiff avers that his injuries are the direct and proximate result of defendant’s negligence and the dangerous and unreasonable condition that existed on their premises. (Complaint, lj[9a-f, 13a-f, 14a-e.)

(3) In Count II of the complaint, plaintiff-wife avers that, as a result of defendant’s negligence, she has and will be required to expend large sums of money on plaintiff’s medical treatment, and has been deprived of the future society, services, assistance, companionship and consortium of plaintiff.

(4) Defendant filed its motion for summary judgment on July 10, 2003. As the court has received the briefs and heard the arguments of both parties, the matter is now ripe for disposition.

CONCLUSIONS OF LAW

(1) Summary judgment shall be entered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b).

(2) “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.” Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). Summary judgment may only be entered in cases where the right is free and clear from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989) (citing Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979)).

(3) Any doubt regarding the existence of a genuine issue of material fact must be resolved in favor of the non-moving party. Marks, 527 Pa. at 135, 589 A.2d at 206.

(4) The court’s function in summary judgment proceedings is not to determine the facts, but only to determine if a genuine issue of material fact exists. Liles v. Balmer, 389 Pa. Super. 451, 567 A.2d 691 (1989).

(5) When the non-moving party bears the burden of proof of an issue at trial, it is incumbent upon that party to advance sufficient evidence in opposition to summary judgment “such that a jury could return a verdict in his favor.” Curran v. Philadelphia Newspapers Inc., 497 Pa. 163, 177, 439 A.2d 652, 658 (1981). Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

DISCUSSION

Defendant contends it is entitled to summary judgment as a matter of law, because it avers that plaintiffs cannot meet their burden of proving defendant had actual or constructive notice of the alleged dangerous condition at issue, the water on the floor or the ceiling and/ or roof leak; and that they therefore cannot present a prima facie negligence claim at trial. (Defendant’s brief in support of motion for summary judgment, p. 15.) Were it the court’s duty to determine the facts, it may have found defendant’s arguments to be persuasive. However, the court’s duty is not to determine the facts, but to determine whether there is a genuine issue of material fact. Plaintiff has adduced evidence, which if viewed in the light most favorable to plaintiff, does indeed create a genuine issue of material fact as to whether the defendant had actual or constructive notice of the dangerous condition of the leaking roof and the water on the floor. Thus, as defendant’s right to summary judgment is not free and clear from doubt, this court is precluded from entering judgment in their favor.

Plaintiff’s cause of action is governed by Restatement (Second) of Torts §343. At issue is subsection (a), which states that, “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if,... he knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee.” Zito v. Merit Outlet Stores, 436 Pa. Super. 213, 216, 647 A.2d 573, 574 (1994) (quoting Restatement (Second) of Torts §343). Defendant does not dispute any duty owed to plaintiff as business invitee, or that plaintiff slipped and fell on water that was leaking from the ceiling onto the floor of their premises. Rather, defendant asserts that plaintiff cannot prove that defendant had actual or constructive knowledge of either the water on the floor or the leaky roof, and that the leak in the ceiling could not have been detected by reasonable inspection.

Defendant avers that the evidence adduced cannot support a reasonable inference that it had notice of water dripping from the ceiling above where plaintiff fell, as, they allege, there had never been any complaints of dripping water, there were never any prior incidents of patrons slipping, and plaintiff himself testified in his deposition that he did not actually observe any wetness on the floor before he fell. (Mather, p. 18.) The lack of previous incidents involving patrons slipping is not dispositive of whether defendant had notice that the roof was dripping on the date plaintiff slipped and fell on defendant’s premises. Nor is the fact that plaintiff did not actually observe the water on the floor. Despite defendant’s contentions, plaintiffs cite facts which, when cast in the light most favorable to plaintiff, tend to show that defendant did have actual notice of the water located on the floor where the plaintiff fell. Contrary to defendant’s assertion that defendant lacked actual notice, plaintiff asserts that shortly after he fell an employee of the Nittany Lion Inn advised him that water had been reported on the floor. (Id., p. 21.) It is quite possible to reach the conclusion that the water had been reported after plaintiff’s fall, however, that conclusion would necessitate the court to determine the facts, and the court is not permitted to do so in this instance.

Furthermore, it is possible to infer from plaintiff’s description regarding the appearance of the ceiling tiles at the time of his fall that defendant would have noticed a problem had they been making routine inspections as they purported to have done. Plaintiff stated that, at the time of his fall, water was dripping on his head which caused him to look up and take notice of the condition of the ceiling. (Mather, p. 20.) Plaintiff noted that the “fibrous” tile above him was discolored, (id.), and explained during his deposition that he could tell that the ceiling was wet, because although the ceiling was white, it appeared “discolored, it was darker where it had gotten wet.” (Id.)

Defendant asserts that it was the job of a regular employee to walk around the Inn every day and look for any maintenance or housekeeping issues, (Burket depo., 85-87), that the floor area where plaintiff slipped was cleaned every night, (id., p. 82), that defendant’s manager at the time walked around the premises daily to look for maintenance issues, (Niedle depo., p. 14), and that bi-weekly walk-throughs were performed for the express purpose of identifying any potential maintenance issues or problems, including items such as damaged ceiling tiles. (Burket, p. 54-55.) Defendants further assert that plaintiff cannot point to any evidence to establish that defendant’s inspections were substandard, or that an inspection of a different nature would have revealed water on the floor, water dripping from the ceiling in the atrium area before plaintiff fell, or would have revealed some indicia that such problem was likely to develop. (Defendant’s brief, p. 14.) If plaintiff’s description of the appearance of the ceiling is taken as tme, and had defendant been making the regular inspections it purports to have made, a jury could reasonably infer that defendant had actual notice of the problem with the ceiling on September 14, 1999, the day of plaintiff’s accident.

Even if the court were to concede that plaintiff could not meet its burden that defendant had actual notice of the water on the floor and the leak in the roof, it could not, with absolute certainty, reach that same conclusion with respect to the issue of constructive notice. As stated above, the defendant submits that plaintiffs cannot produce sufficient evidence to establish that defendant had constructive notice of the water on the floor or the leak in the ceiling.

What constitutes constructive notice varies according to the circumstances of each case. Lanni v. Pennsylvania R.R. Co., 371 Pa. 106, 111, 88 A.2d 887, 889 (1952). Where proof of actual notice is lacking, courts have looked to the following factors as illuminative of whether constructive notice exists: “time elapsing between the origin and defect and the accident,... the size and physical condition of the premises, the nature of the business conducted thereon, the number of persons using the premises and the frequency of such use, the nature of the defect and its location on the premises, its probable cause and the opportunity which defendant, as a reasonably prudent person, had to remedy it.” Bremer v. W.W. Smith Inc., 126 Pa. Super. 408, 411-12, 191 A. 395, 397 (1937). In support of their position that plaintiffs cannot show constructive notice, defendant cites to several facts it deems relevant regarding the issue of constructive notice in this case.

In their brief, defendant cites to the proposition that, in each case, the evidence must be sufficient to demonstrate that the defect existed for a sufficient time for the defendant to have become aware of the defect of it with the exercise of reasonable diligence. Angelelli v. Albert J. Mansmann Co., 168 Pa. Super. 275, 280, 77 A.2d 678, 680 (1951); Parker v. McCrory Stores Corp., 376 Pa. 122, 124-25, 101 A.2d 377, 378 (1954). According to defendant, plaintiff has not come forward with any witnesses or other evidence to show the amount of water on the floor just after he fell, or to otherwise describe the appearance of the water on the floor in such a manner to suggest that defendant should have been aware of the problem or to create a reasonable inference that the water had been dripping on the floor any significant amount of time as to put defendant on constructive notice.

We disagree. Plaintiff, himself, is a witness and has testified during his deposition as to the amount of water on the floor just after he fell. Plaintiff testified that there was enough water on the floor to cause his pants and various papers he was holding to become soaked with water. (Mather, p. 24.) Plaintiff also described that because of how wet his pants, shoulder, and papers had been that the water on the floor must have been a puddle of, “at least a couple feet around or three feet maybe.” In addition to plaintiff’s own testimony, the deposition testimony of maintenance man Alan Niebel and director of lodging operations at the Nittany Lion Inn, James Burket, establish that there was at least one bucket of water placed on the floor to collect the dripping water from the roof at the exact location of the fall. (Niebel depo., p. 18; Burket, p. 60.) There was testimony that, on the day of plaintiff’s accident, it had been raining for most of the day. (Mather, p. 25.) Given that fact, the fact that there was enough water on the floor to soak plaintiff’s pants and papers, and the fact, as discussed earlier in this opinion, that the ceiling tile appeared discolored, the court determines that sufficient evidence exists to support a reasonable inference that dripping had occurred for such a length of time that a jury could conclude in the exercise of reasonable care on the part of the defendant, the water would have been discovered and reasonable preventative measures taken.

Defendant highlights the fact that no other witnesses saw water on the floor at any time before plaintiff fell, despite the fact that the atrium is a high traffic area and the fact that there were other patrons out in the courtyard just beyond the door where plaintiff was attempting to exit when he fell; and that no other conference attendees had commented to the defendant about problems with water on the floor during the several-day conference at the Inn. These are not uncontroverted conclusory facts regarding the issue of constructive notice. Plaintiff testified that the floor was a shiny, hard, slate floor. (Mather, p. 19.) Thus, it would be unlikely that the plaintiff or others would have detected water on the floor, which also presents a shiny, wet appearance. The fact that neither plaintiff nor other conference attendees were aware of the water on the floor does not obviate defendant’s duty to make certain that the floor was free from water on a rainy day.

Plaintiff submits that if proper policies had been put in place to keep the floor in a safe condition during inclement weather conditions, plaintiff’s fall may have been prevented. As plaintiff notes, James Burket, director of lodging operations, explained that they do not use rugs on the floor because they may pose tripping hazards. (Plaintiff’s brief, p. 10, Burket, p. 85.) Plaintiff goes on to make the important point, that “though defendants did have notice of the importance of inspecting the floors, walkways and restrooms, etc. there is no known proactive policy in effect to inspect the floors during inclement rainy weather, especially when defendants knew it had problems with the new section of the roof leaking.” (Plaintiff’s brief, p. 10.)

Also at issue as a dangerous condition in this motion for summary judgment is the leak present in the roof at the time of plaintiff’s accident. Plaintiff submits that the leaky roof was a dangerous condition of which the defendant had constructive notice. The asserted basis for plaintiff’s contention is twofold. First, plaintiff asserts that the area in which he fell was part of a general area of the ceiling which had been leaking from a defect in the new (1992) construction. Plaintiffs contend that the presence of the inclement weather should have put defendants on notice that the rainwater could potentially be leaking through any problem areas in the roof. Second, plaintiffs assert that because of the prior leaks in the roofing of the new construction, defendant had a duty to make reasonable inspections of the new roofing.

In response, defendant avers that its employees specifically inspected the roof on at least an annual basis, and that routine maintenance was performed far more often than that. (Defendant’s brief, p. 15; Burket, pp. 37-42; Niedle, pp. 32-37.) Furthermore, defendant cites to the measures necessary to determine the source of the leak for the proposition that the leak was a latent defect that reasonable inspection would not have revealed. In support of defendant’s latent defect theory, it notes that even after plaintiff fell and water was observed to be dripping from the ceiling in the atrium, the source of the problem could not be found until the riverstone was removed from the roof top and the rubber seams pulled back in the area where the water had been dripping below. (Id., p. 15; Niedle, pp. 17-24; Burket, pp. 57-58.) Thus, defendant avers, that undisputed testimony establishes that the tear in the roof seam could not have been observed by a visual inspection of the roof with no prior notice that a problem existed.

Plaintiff presents facts contrary to those cited by defendant. Plaintiff points out testimony by Mr. Burket that raises a question regarding the sufficiency of defendant’s inspection policy. Mr. Burket testified that he was not aware of any proactive inspections performed on the roof where he would walk around and look for things that may or may not need to be repaired, including checking the roof for any potential problems. (Burket, p. 41.) Mr. Burket also testified that the Inn did not keep any maintenance records of in-house repairs done to the roof. (Id., p. 46.) Plaintiff also notes that other than the yearly roof inspections, Burket did not describe any other inspections done on the roof. (Id., p. 54.)

In an attempt to bolster the sufficiency of its inspection policies, defendant avers that because the roof was only seven years old, and thus relatively new, that they would have had no reason to anticipate that there was a leak in the roof or to take special precautions in the absence of notice of the problem. Furthermore, defendant contends that evidence of prior leaks in the roof to establish a defect would not be admissible at trial because the leaks did not occur in substantially the same place and under the same or similar circumstances such that there is some relation to the leak in question.

However, the cases cited by defendant to support its contention differ factually from the case at bar. See Stormer v. Alberts Construction Co., 401 Pa. 461, 466, 165 A.2d 87, 89 (1960) (“In the instant case the defendant knew of this dangerous condition of the highway on which it had piled the dirt, and adequately and amply protected it with lights which both plaintiff’s and defendant’s evidence proved were clearly visible for more than 250 feet.”); see also, Whitman v. Riddell, 324 Pa. Super. 177, 182, 471 A.2d 521, 523 (1984) (“in the instant case, it appears that prior accidents at the same intersection were caused by various factors, none of which would have put appellant on notice that the traffic light in question was defective”). In this case, plaintiffs have pointed to facts which tend to show that the defect in the roof over the area where plaintiff fell was the same type of defect found in the other areas of the same general roof construction that had leaked. Burket confirmed that the source of the leak which caused plaintiff’s fall was due to the seams separating in the seals of the roof. (Burket, p. 56.) Burket also testified that the two other leaks in the roof that had required repair had also needed to be resealed. (Burket, p. 23.)

In summary, plaintiff argues, and this court agrees, that the determination of constructive notice is a question of fact to be determined by a jury. Lederhandler v. Bolotini, 402 Pa. 250, 167 A.2d 157 (1961). It is also a question of fact for the jury to decide if a landowner knew or should have discovered the defect upon reasonable inspection. PennDOT v. Patton, 546 Pa. 562, 568, 686 A.2d 1302, 1305 (1997), citing Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 124 (1983). The plaintiff has presented sufficient evidence to create a genuine issue of material fact with regard to defendant’s notice of the water on the floor and the leak in the roof, and as to whether defendant’s roof inspection policy was sufficient in light of the other problems encountered with the 1992 renovation/expansion project roof. The jury must determine the sufficiency of plaintiffs’ proof regarding defendant’s negligence in this case.

ORDER

And now, October 16,2003, it is the order of this court that defendant’s motion for summary judgment is hereby denied.

      . Restatement (Second) of Torts §343, Dangerous Conditions Known to or Discoverable by Possessor, states that a possessor of land is subject to liability for physical harm caused to his invitees by a condition of the land if, but only if he:
      “(a) knows or by the existence of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee, and
      “(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
      “(c) fails to exercise reasonable care to protect them against danger.”

      . The roof over the atrium where plaintiff fell was seven years old, and thus relatively new, having been constructed by an outside contractor as part of a renovation/expansion project completed in or about 1992. (Burlcet, pp. 17-18.) The 1992 renovation/expansion project involved several different areas, including (i) the atrium area where plaintiff fell and the flat one-story roof overhead; (ii) a bar with a different copper roof; and (iii) a library area with a three-story roof. (Id., pp. 29-33 and exhibit 1 thereto.)


author: ABRAMSON, J.,

text:
    Riggio v. Katz

      Roberta D. Pichini, for plaintiff-appellant.

      Timothy I. McCann, for defendants-appellees.
    October 15, 2003
   ABRAMSON, J.,

Plaintiff has appealed this court’s order which granted defendants’ petition to transfer venue based on the newly amended Pennsylvania Rule of Civil Procedure 1006(a.l) and which transferred the case to Montgomery County. The newly amended Pa.R.C.P. 1006(a.l) states that “a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in a county in which the cause of action arose.” Pa.R.C.P. 1006(a.l).

In her complaint, plaintiff alleges that the defendants’ failure to properly interpret a positive urine culture and laboratory test results that revealed the presence of staphylococcus aureus caused her alleged injuries. This court found that venue was improper in Philadelphia County because all the alleged acts of medical malpractice occurred in Montgomery County, and that plaintiff’s injury occurred simultaneously with the alleged acts of malpractice. The court found that the only connection to Philadelphia County was that it was the county in which plaintiff’s injury manifested itself; it was not the county in which the injury occurred.

Thus, this court found that plaintiff’s cause of action arose in the county in which the alleged negligence occurred and transferred venue to Montgomery County. Even assuming, arguendo, that the injury was not simultaneous with the alleged acts of malpractice, but occurred in Philadelphia, this court held that the plaintiff’s cause of action “arose” where the defendants’ alleged negligent acts occurred, not where the plaintiff’s injury occurred. Moreover, this court found that the purpose of the new venue rule for medical malpractice claims promulgated by the Pennsylvania Supreme Court would be frustrated if health care providers could be hauled into forums with which they have no contacts. This appeal presents two issues: (1) whether this court erred in finding that plaintiff’s cause of action arose in Montgomery County, the county in which the alleged malpractice occurred, and consequently granting the defendants’ petition to transfer to Montgomery County under venue Rule 1006(a.l); and (2) whether this court erred in ordering plaintiff to pay all costs related to the transfer of the record when venue was not disputed through preliminary objections.

STATEMENT OF FACTS

On March 13, 2001, plaintiff, at the time a resident of Philadelphia County, was admitted to the emergency room at Elkins Park Hospital in Montgomery County. Plaintiff complained of nausea, vomiting and diarrhea that had persisted for the previous three days, as well as shortness of breath and epigastric pain. Elkins Park Hospital admitted plaintiff that day. Defendants Dr. Allan S. Katz, Dr. Maria Antoniou and Dr. Daniel J. Sher evaluated and treated plaintiff during her stay at Elkins Park Hospital.

On plaintiff’s admission note, Dr. Katz, the attending physician at the time, evaluated plaintiff’s condition to be “gastroenteritis, possibly viral in etiology, or bacterial.” Dr. Katz noted on the admission note that a urinalysis study indicated the presence of “3+ bacteria.” A subsequent laboratory report for the urinalysis confirmed the presence of the bacteria. A urine culture performed on March 13, 2001 revealed staphylococcus aureus.

In her complaint, plaintiff alleges that the defendant physicians and Tenet Health System never advised her of the abnormal urinalysis results or the urine culture results that revealed the presence of staphylococcus aureus. Additionally, she alleges that defendants failed to administer or prescribe antibiotics, to order an additional urinalysis or urine culture, and to request or obtain an infectious disease consultation.

Plaintiff was discharged from Elkins Park Hospital with a principal diagnosis listed as “dehydration due to gastroenteritis.” The discharge summary dated March 16, 2001 that was signed by Dr. Antoniou stated that the probable cause of plaintiff’s dehydration was “viral gastritis.” Plaintiff’s complaint alleges that the defendants’ discharge summary incorrectly stated that “cultures were sent off which were negative” and that the complete blood count was normal on the day of discharge. In addition, plaintiff alleges that a March 16, 2001 letter from Dr. Antoniou to plaintiff’s primary care physician incorrectly stated that “cultures were sent and were negative,” despite the urine culture that revealed staphylococcus aureus.

Two days later, on March 18,2001, plaintiff was transported to Nazareth Hospital emergency room in Philadelphia County. She was weak, lethargic and non-verbal. She had rales throughout her lungs. During this stay at Nazareth Hospital, plaintiff required mechanical ventilation and intubation. She was diagnosed with staphylococcus aureus pneumonia, septicemia, myocardial infarction, renal failure, respiratory failure, pulmonary collapse and depression. Subsequently, plaintiff spent two weeks in a nursing facility where she required a PEG tube for eating.

Since the incident, plaintiff claims to have sustained severe and permanent injuries to her bones, skin, muscles, nerves, tendons, tissues and blood vessels. In addition, she alleges septic shock, hypotension, dehydration, acute ischemic renal failure, respiratory failure, pneumonia, myocardial infarction, pulmonary collapse and acute change in mental status, all as the result of the treatment she received or did not receive from Elkins Park Hospital.

STANDARD OF REVIEW

A trial court’s ruling on venue will not be disturbed if the decision is reasonable in light of the facts. Mathues v. Tim-Bar Corp., 438 Pa. Super. 231, 652 A.2d 349 (1994). Furthermore, a decision to transfer venue will not be reversed unless the trial court abused its discretion. Id., 438 Pa. Super. at 234, 652 A.2d at 351.

THE INJURY OCCURRED SIMULTANEOUSLY WITH THE ALLEGED MALPRACTICE

According to the allegations in plaintiff’s complaint, the defendant physicians and health center were negligent in failing to provide her with the authentic results of her urinalysis that revealed a bacterial infection and in failing to prescribe the medication necessary to treat her then existing condition. Plaintiff alleges that because the defendants failed to prescribe medication, her infection went untreated, eventually leading to her emergency room admittance in Philadelphia County two days later. The injury was an infection that went untreated. To say that the injury occurred in a place or in Philadelphia is a fiction where the matter at hand is an infection, and therefore, a process. The process of infection existed and proceeded at the time the infection allegedly went untreated. Therefore, this court finds that the plaintiff’s injury began to accrue at the time the defendants allegedly failed to prescribe the proper treatment. See discussion of Green v. North Arundel Hospital Association Inc., 266 Md. 597, 785 A.2d 361 (2001); Forrest County General Hospital v. Conway, 700 So.2d 324 (Miss. 1997). As a result of the alleged malpractice, plaintiff’s infection began to worsen from the time of the misdiagnosis, ultimately leading to her emergency visit to the hospital two days later in Philadelphia. Cascading diagnoses relate back to the breach of the standard of care or there is no causation. Diagnoses is nomenclature for the result of the breach and are not distinct injuries.

THE CAUSE OF ACTION ARISES UNDER Pa.R.C.P. 1006(a.l) WHERE THE ACTS OF NEGLIGENCE OCCURRED

Even assuming, arguendo, that the injury occurred subsequent to the alleged malpractice, that is, in Philadelphia, this court found that the Pennsylvania Supreme Court intended for venue in medical malpractice cases to lie where the malpractice occurred. It was in a climate of reform that the court promulgated the amended rule that a medical liability cause of action be brought only in a county where the cause of action arose. Plaintiff’s position is that a cause of action “arises” where the injury occurs.

On January 27,2003, the Pennsylvania Supreme Court promulgated Pa.R.C.P. 1006(a.l), which states that “a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in a county in which the cause of action arose.” Pa.R.C.P. 1006(a.l).

Pennsylvania Rule of Civil Procedure 128 provides:

“In ascertaining the intention of the Supreme Court in the promulgation of a rule, the courts may be guided by the following presumptions among others:
“(a) That the Supreme Court does not intend a result that is absurd, impossible of execution or unreasonable;
“(b) That the Supreme Court intends the entire rule or chapter of rules to be effective and certain;
“(c) That the Supreme Court does not intend to violate the Constitution of the United States or of this Commonwealth;
“(d) That if the Supreme Court has construed the language used in a rule or statute, the Supreme Court in promulgating a rule on the same subject matter which employs the same language intends the same construction to be placed upon such language;
“(e) That the Supreme Court intends to favor the public interest as against any private interest;
“(f) That no rule shall be construed to confer a right to trial by jury where such right does not otherwise exist.”

Although plaintiff does not argue that Pa.R.C.P. 128(d) applies to the instant case, one could make such an argument citing the case that plaintiff cited.

In support of her position, plaintiff cited Openbrier v. General Mills Inc., 340 Pa. 167, 16 A.2d 379 (1940), in which the Supreme Court affirmed a decision permitting a defendant to be sued in Washington County. Plaintiff purchased a package of flour from a retailer in Washington County, Pennsylvania. The defendant had manufactured the flour in New York and had sold the flour in New York to a wholesaler. The plaintiff alleged that the flour contained glass that injured her when she ate bread made from the flour in Washington County, Pennsylvania. Id., 340 Pa. at 168. A statute permitted a county to issue process against a corporation “in the county in which the right of action arose.” Id., 340 Pa. at 169. In deciding that the right of action arose in Washington County the court stated:

“Where did the right of action arise in the present case? Undoubtedly in Washington, Pennsylvania, not in Buffalo, New York, because ‘To constitute a tort there must be an injury; mere negligence establishes no right of action. The place of wrong is, and the tort must be deemed to arise, where the injury is inflicted, not where the negligent acts leading to it were committed’: Mike v. Lian, 322 Pa. 353, 356, 185 A. 775, 777. If the glass was in the package of flour as the result of defendant’s negligence, no ‘right of action’ (which is synonymous with ‘cause of action’: Alpha Claude Neon Corp. v. Pennsylvania Distilling Co. Inc., 325 Pa. 140, 142, 188 A. 825, 826) accrued to Mrs. Openbrier until she ate the bread and thereby suffered injury: Restatement, Conflict of Laws, section 377.” Id.

The argument that Pa.R.C.P. 128(d) applies based on Openbrier is subject to the counterargument that the subject matter and the language of the statute in Openbrier is different from the subject matter and language in Pa.R.C.P. 1006(a.l). The statute in Openbrier was a statute specifying the county that could issue process; the statute did not by its express terms specify the county for venue. Moreover, the statute used the words, “right of action,” and the rule in the instant case uses the words, “cause of action.” These differences could lead to the conclusion that Pa.R.C.P. 128(d) does not apply to the instant case. In any event, whether Pa.R.C.P. 128(d) applies in the instant case, for the reasons set forth below, this court holds that it does not control the decision.

This court also holds that statements by a member of the House of Representatives also do not control the decision in the instant case.

As stated in more detail below, the Supreme Court’s adoption of Pa.R.C.P. 1006(a.l) was preceded by a few months by a new statute, which, like Pa.R.C.P. 1006(a. 1), also provided for medical professional liability claims against a health care provider to be brought only in the county in which the “cause of action arose.” 42 Pa.C.S. §5101.1(b) (West 2003).

When the venue provision was being considered for passage in the House of Representatives, Representative Veon, who opposed passing the venue provision in the statute, stated that the effect of the venue provision would be that if an Elk County doctor sent an Elk County patient to a Philadelphia hospital for care, the only venue for a malpractice action would be Philadelphia. Legislative Journal, House of Representatives, October 7,2002, page 1814. However, our Supreme Court has stated that, “[t]his court has consistently held that views expressed by members of the House and Senate in consideration of legislation may not be relied upon in ascertaining the legislative intent of the enactment as finally passed.” Martin v. Soblotney, 502 Pa. 418, 424 n.5, 466 A.2d 1022, 1025 n.5 (1983).

The following analysis supports this court’s decision that under Pa.R.C.P. 1006(a.l) a cause of action arises in the county in which the acts or omissions of negligence occur.

Pennsylvania Rule of Civil Procedure 128(a) provides that “[i]n ascertaining the intention of the Supreme Court in the promulgation of a rule, the courts may be guided by the following presumptions among others: ... (a) [tjhat the Supreme Court does not intend a result that is absurd, impossible of execution or unreasonable.”

This court found that if the meaning of “cause of action arose” is, as plaintiff argues, where the harm manifests itself, then there would be an unreasonable result. For example, if a physician is alleged to be negligent in prescribing a certain medication to a patient who the physician knows or should know is allergic to the medication, the harm will occur where the medication is taken. That place could be far from the county in which the physician prescribed the medication and far from the county in which the patient lives. The physician could prescribe the medication in Montgomery County, the patient could live in Philadelphia and the patient could have traveled to Pittsburgh when the patient took the medication and suffered an injury.

Pennsylvania Rules of Civil Procedure state, “[t]he object of all interpretation and construction of rules is to ascertain and effectuate the intention of the Supreme Court.” Pa.R.C.P. 127. To effectuate the intent of a rule, a court is to evaluate, among other things: (1) the occasion and necessity for the rule; (2) the circumstances under which the rule was promulgated; (3) the mischief to be remedied; and (4) the object to be attained. Pa.R.C.P. 127. The court examined each of these elements of construction in reaching its decision.

The Pennsylvania Supreme Court’s modification of existing venue rules fits into a larger, state-wide policy aimed at reforming medical liability. Shortly before the Supreme Court amended the civil procedure rule for venue in medical malpractice cases, the General Assembly discussed changes to existing venue requirements in medical malpractice cases in hearings on the Medical Care Availability and Reduction of Error (MCARE) Act, the goal of which was to resolve the complex issue of medical malpractice in Pennsylvania. The issue of where an injured plaintiff can file suit is an integral component of Pennsylvania’s policy with regard to medical malpractice and its reform. The MCARE Act states as a declaration of policy that “recent changes in the health care delivery system have necessitated a revamping of the corporate structure for various medical facilities and hospitals” across Pennsylvania that has “unduly expanded the reach and scope of existing venue rules.” 40 Pa.C.S. §1303.514 (West 2003).

The MCARE Act established a commission “to review and analyze the issue of venue as it relates to medical professional liability actions filed in [Pennsylvania]” and to create “recommendations for such legislative action or the promulgation of rules of court on the issue of venue ....” 40Pa.C.S. §1303.514(b)(i), (ii) (West2003). Members of the Interbranch Commission on Venue were appointed by the Attorney General, Governor of Pennsylvania, the Pennsylvania Senate and House of Representatives, and the Chief Justice of Pennsylvania. In the commission’s recommendations, one of the 11 commission members stated, “[i]f the General Assembly’s legislative findings are based on the existing venue rules permitting lawsuits against physicians to be filed in counties in which the physicians did not provide any medical care, this member recommends legislation restricting venue to a county where the cause of action arose whenever one or more of the defendants is a physician.” This statement is a clear expression that venue should not be permitted in a county in which the physician did not provide medical care.

After the Interbranch Commission on Venue report to the Pennsylvania Senate and House of Representatives and the Chief Justice of Pennsylvania was submitted in October 2002, section 5101.1 of the Judicial Code was passed, which provided: “[notwithstanding any other provision to the contrary, a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in the county in which the cause of action arose.” 42 Pa.C.S. §5101.1(b) (West 2003). On January 27,2003, the Pennsylvania Supreme Court promulgated the venue provision in Pa.R.C.P. 1006(a.l). In conclusion, upon examination of the context in which the rule was amended, this court found that it was the intent of the Supreme Court to restrict venue in medical malpractice cases to where the breach of the standard of care occurred.

Pennsylvania case law supports the proposition that in medical liability cases, the cause of action arises in the county where the alleged negligent act or negligent omission occurred. In Pennsylvania, a cause of action in negligence has been defined as the negligent act or acts which occasioned the injury for which relief is sought. Reynolds v. Thomas Jefferson University Hospital, 450 Pa. Super. 327, 338, 676 A.2d 1205, 1210 (1996), citing Cox v. Wilkes-Barre Railway Corporation, 334 Pa. 568, 570, 6 A.2d 538, 539 (1939). In an issue of first impression, the Superior Court faced the question of whether, when a decedent is fatally injured in one county but dies in another county, a wrongful death action arises in the county of the initial tortious conduct or in the county of the plaintiff’s death. Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384 (Pa. Super. 2002). In Sunderland, the plaintiff argued that but for the death of the victim, which occurred in a Philadelphia County hospital, a wrongful death cause of action would not exist. Id. at 391. Therefore, plaintiff argued that under Pa.R.C.P. 1006(a), the cause of action arose, and venue was therefore appropriate, in Philadelphia County. The Superior Court upheld the trial court’s determination that venue was proper in Montgomery County, the county in which the accident occurred that led to the plaintiff’s death. The court reasoned that in a wrongful death suit, the plaintiff’s death is not the tort but simply its consequence or result. Id. at 390, citing Centofanti v. Pennsylvania R. Co., 244 Pa. 255, 262, 90 A. 558, 561 (1914). It is the tortious act or negligence of the wrongdoer, and not its consequence, that is the basis or ground of action. Id.

In a medical malpractice case, Rubeck v. Milroth, 53 D.&C.4th 548, 553 (2001), the defendant doctor’s affidavit stated that all treatment to the plaintiff was rendered in Fulton County. The plaintiff contended that although defendant’s treatment occurred in Fulton County, as a result of the defendant’s alleged negligence, plaintiff had to receive additional medical treatment in Franklin County, making Franklin County an appropriate venue. Id. at 553. The court found Franklin County to be an inappropriate venue. The court stated that “all treatment rendered to the decedent. . . which is at the heart of this negligence action, was rendered in Fulton County____” Id. at 554. Therefore, venue was appropriate in Fulton County, the county in which the cause of action arose. Id. at 554.

Other states with venue statutes similar to Pa.R.C.P. 1006(a.l) have found that a medical liability cause of action arises in the county in which the negligent acts or omissions occurred. Wells v. Cumberland County Hospital System, 150 N.C.App. 584, 564 S.E.2d 74 (2002); Forrest County General Hospital v. Conway, 700 So.2d 324 (Miss. 1997); Green v. North Arundel Hospital Association Inc., 366 Md. 597, 785 A.2d 361 (2001). For example, a Mississippi statute provides: “[c]ivil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found or in the county where the cause of action may occur or accrue.” Conway, 700 So.2d at 326. In Conway, the plaintiffs took their infant, daughter for treatment in a Forrest County, Mississippi hospital emergency room. The plaintiffs were given an antibiotic for the child and sent home. The next day, the child’s condition worsened. She was taken back to the hospital, where she was diagnosed with meningitis, requiring amputation of her arms and legs. The Supreme Court of Mississippi found that the plaintiff’s damage occurred and accrued in the county in which the doctors allegedly failed to properly diagnose the disease, not where the resultant harm simply manifested itself. Id. at 327.

In Wells, the defendant hospital moved for a change of venue pursuant to a North Carolina statute that requires a plaintiff to file suit in a county where the cause of action, or some part thereof, arose. Wells, 150 N.C. App. at 586. The Court of Appeals of North Carolina found that the plaintiff alleged no acts or omissions by the defendants in the county in which the case was filed. Id. at 589. Therefore, the court affirmed the venue transfer to the county in which the alleged negligent medical treatment occurred. Id. at 589. The court stated, “[t]he cause of action arises in the county where the acts or omissions constituting the basis of the action occurred.” Id. at 589.

In Green, the plaintiff argued that as a result of the defendant’s negligence in its failure to properly treat the plaintiff’s illness, the plaintiff continued to suffer, instead of receiving treatment. Green, 366 Md. at 610. The Court of Appeals of Maryland found that the defendant hospital’s failure to properly diagnose and treat the plaintiff’s condition amounted to an injury. Green, 366 Md. at 612.

For the foregoing reasons, this court found that Pa.R.C.P. 1006(a.l) requires a medical liability claim to be filed in the county where the alleged medical negligence occurred. Plaintiff’s interpretation of the Supreme Court’s recent amendment to the rules of procedure would cause physicians to be sued where they are not alleged to have breached a duty of care owed the suing patient.

Plaintiff cited Openbrier v. General Mills Inc., 340 Pa. 167, 16 A.2d 379 (1940), to support her position that a plaintiff’s cause of action arises in the county where the injury has occurred, not where the negligent acts leading to the injury were committed. This court held that the rationale of Openbrier did not apply to the instant case, considering the circumstances surrounding the promulgation of the new venue Rule 1006(a.l), the clear intent to limit the venue in which medical professional liability claims can be brought, and the previously cited Pennsylvania and other states’ decisions.

PLAINTIFF BEARS THE BURDEN OF COST OF TRANSFER UNDER Pa.R.C.P. 1006(e)

Plaintiff contends that the trial court erred in ordering that plaintiff pay all costs related to the transfer of the case from Philadelphia to Montgomery. The court properly ordered plaintiff to pay the costs pursuant to Pa.R.C.P. 1006(e) which provides “[t]he costs and fees for transfer and removal of the record shall be paid by the plaintiff.” Pa.R.C.P. 1006(e).

CONCLUSION

For the foregoing reasons, the trial court’s decision should be affirmed. The defendant’s motion to transfer venue to Montgomery County was appropriately granted by the trial court under the newly amended Pa.R.C.P. 1006(a.l).

      . In North-Central Pennsylvania Trial Lawyers Association v. Weaver, 827 A.2d 550, 559 (Pa. Commw. 2003), the Commonwealth Court ruled section 5101.1 of the Judicial Code unconstitutional on the ground that Article V of the Pennsylvania Constitution grants the Pennsylvania Supreme Court exclusive authority to promulgate venue rules.

      . In North-Central Pennsylvania Trial Lawyers Association v. Weaver, 827 A.2d 550, 559 (Pa. Commw. 2003), the Commonwealth Court ruled section 5101.1 of the Judicial Code unconstitutional on the ground that Article V of the Pennsylvania Constitution grants the Pennsylvania Supreme Court exclusive authority to promulgate venue rules. See footnote 1.


author: CHESLOCK, J.,

text:
    Commonwealth of Pennsylvania v. Gadsden

      C.P. of Monroe County,
    no. 683 Criminal 2002.

      Michael Mancuso, for the Commonwealth.

      William K. Sayer, for defendant.
    May 23, 2003
   CHESLOCK, J.,

The charges against defendant Eric Gadsden stem from the June 2, 2002 shooting of his common-law wife Sharon Smith and her brother Leroy Smith in the Pocono Country Place Development in Monroe County, Pennsylvania. This case was scheduled to go to trial during the May 2003 criminal trial term, but was continued pending the resolution of a motion in limine filed by the Commonwealth on May 6, 2003. Both the Commonwealth and the defendant filed supporting memoranda of law. Oral argument was heard before this court on May 16, 2003. We are now ready to dispose of the Commonwealth’s motion in limine.

The Commonwealth’s motion in limine seeks to bar expert reports and expert testimony relating to the psychiatric and psychological examinations of defendant as pertaining to a proffered defense of diminished capacity and/or voluntary intoxication. Under Pennsylvania law, the admission or exclusion of evidence is a matter within the sound discretion of the trial court, which may only be reversed upon a showing of a manifest abuse of discretion. See Johnson v. Hyundai Motor America, 698 A.2d 631, 636 (Pa. Super. 1997). Evidence must be relevant to be admissible. Pa.R.E. 402. Additionally, relevant evidence which is prejudicial, misleading, or merely cumulative may be excluded by the trial court. See generally, Pa.R.E. 403; Yacoub v. Lehigh Valley Medical Associates P.C., 805 A.2d 579 (Pa. Super. 2002).

The motion in limine has two counts, the first asking the court to exclude from evidence any and all expert testimony touching upon defendant’s alleged diminished capacity and/or voluntary intoxication on relevance, and the second asking the court to exclude from evidence any and all expert testimony touching upon defendant’s alleged diminished capacity as speculation. Each count will be discussed in turn. The central thrust of the Commonwealth’s first count is that defendant’s defense of diminished capacity and/or voluntary intoxication is irrelevant to the charge of attempted murder because its use is barred by precedent. Commonwealth argues that the cases of Commonwealth v. Terry, 513 Pa. 381, 393, 521 A.2d 398, 405 (1987); Commonwealth v. Garcia, 505 Pa. 304, 309, 479 A.2d 473, 477 (1984); and Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976), all support the proposition that the defense of diminished capacity and/or voluntary intoxication can only be employed to defend against first-degree murder charges. The Pennsylvania Superior Court examined the issue of whether the defense of diminished capacity could be used to negate the specific intent required for other specific intent crimes, such as robbery. See Commonwealth v. Swartz, 335 Pa. Super. 457, 484 A.2d 793 (1984). The Swartz court determined that the defense of diminished capacity could not be used against charges of specific intent crimes other than first-degree murder, following the dicta of the Pennsylvania Supreme Court in Garcia. See Swartz, 335 Pa. Super. at 462-63, 484 A.2d at 796. While noting that the legislature has not spoken to date as to whether the defense of diminished capacity could apply to crimes other than first-degree murder, the Swartz court agreed with the logic of the apparent policy distinction between first-degree murder and other specific intent crimes. See id.

Pennsylvania law defines an attempt as when a person does any act, with intent to commit a specific crime, which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S. §901. Since criminal attempt requires a specific intent to commit a crime, attempted murder is defined as the commission of an act, with intent to kill, which constitutes a substantial step towards the commission of murder. See Commonwealth v. Griffin, 310 Pa. Super. 39, 50, 456 A.2d 171, 177 (1983). Furthermore, since the only degree of murder that requires an intent to kill is first-degree murder, attempted murder logically must be attempted murder of the first degree. See id. Since second-degree murder and third-degree murders are basically unintentional killings, it would be logically impossible for a person to attempt murder of the second or third degree, since doing so would require the person to intend to commit an unintentional killing. See id. at 50-51,456 A.2d at 177. (emphasis in original) Therefore, in order to convict a person of attempted murder, an intent to kill must be shown. See id. at 52, 456 A.2d at 178.

The Commonwealth notes in its supporting memorandum of law that it is fortunate for the defendant that the intended victims did not die from the shooting, otherwise defendant would be facing two counts of first-degree murder. Com. brief in support at 2. Because defendant is charged with attempted murder, the Commonwealth has to prove beyond a reasonable doubt that the defendant had the intent to kill, just as if he were charged with first-degree murder. While the Commonwealth’s position that the defense of diminished capacity cannot be used outside of first-degree murder charges has a basis in the precedent established by the Pennsylvania Supreme and Superior Courts, this court believes that it is a stretch to equate attempted murder and lesser specific intent crimes, such as robbery, in order to prohibit the use of the diminished capacity defense. To say that but for the defendant’s less-than-accurate shots, or the speed of the paramedics, or the skill of modem medicine, he would be able to take advantage of the diminished capacity defense is too arbitrary a distinction to be drawn. Attempted murder is near enough in intent to first-degree murder so as to be within the penumbra of first-degree murder. In the unpublished Superior Court opinion of Commonwealth v. Hayes, no. 02888 Philadelphia, 1985 (Pa. Super. Oct. 10, 1985), the Hayes court found that the instructions given by the trial court to the jury on the matter of attempted murder were correct in instructing the jury that evidence of the defendant’s intoxication could be used for the limited purpose of negating his specific intent to kill his victim. Slip op. at 3. The Hayes court further found that the trial court’s instruction that intoxication evidence could not be used as a defense to any of the other crimes with which he was charged was a correct interpretation of 18 Pa.C.S. §308. Slip op. at 4. While this court fully recognizes the fact that unpublished opinions are not mandatory authority which this court must follow, they are persuasive authority which we can use to guide our decision. Therefore, it would be proper for this court to deny the first count of the Commonwealth’s motion in limine and allow the defendant to present evidence and expert testimony touching upon defendant’s alleged diminished capacity and/ or voluntary intoxication as a defense to the charge of attempted murder.

The Commonwealth’s second count asks the court to exclude from evidence any and all expert testimony touching upon defendant’s alleged diminished capacity as speculation. The Commonwealth points to the case of Commonwealth v. Legg for the proposition that the diminished capacity defense is extremely limited, and can only be used if there are mental disorders present that affect the cognitive functions of deliberation and premeditation necessary to form a specific intent to commit an act. 551 Pa. 437, 444, 711 A.2d 430, 433 (1998). In the Legg case, the defendant was diagnosed as suffering from major depression, a fact which the PCRA court found to be of arguable merit as to proof of diminished capacity. See id. In the case at bar, the defendant has been diagnosed with “a major depressive disorder” which allegedly caused him to have impaired judgment at the time of the shooting, allegedly preventing him from forming an intent to kill his wife or his brother-in-law. See report of Dr. Fischbein, January 13,2003, p. 8. Since the expert reports produced suggest that defendant was suffering from depression, a condition acknowledged by the Legg court to meet the threshold for diminished capacity, it would be proper for this court to deny the second count of the Commonwealth’s motion in limine, and allow evidence of the defendant’s alleged diminished capacity to be presented at trial.

Due to the aforementioned, we enter the following order:

ORDER

And now, May 23, 2003, after review and consideration, the Commonwealth’s motion in limine is denied. In the event the Commonwealth engages an expert(s), a written report shall be furnished to defense counsel at least five days prior to the start of the July 2003 criminal term.

      . 18 Pa.C.S. §308 provides as follows:
      “Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negate the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.”