author: KUNSELMAN, P.J.,

text:
    Regis Insurance Company v. Bungi’s Inc.

      C.P. of Beaver County,
    no. 11977 of 2004.
    March 29, 2006

      Miles A. Kirshner, for plaintiff.

      Donald Balsley, for defendant Bungi’s Inc.

      James J. Ross, for defendant David L. Byrd.
   KUNSELMAN, P.J.,

This matter is before the court on a motion for judgment on the pleadings or, in the alternative, a motion for summary judgment filed on behalf of the plaintiff, Regis Insurance Company. Therein, Regis contends that it has no duty to defend or indemnify the defendant, Bungi’s Inc., t/a Bungi’s Lounge, in a personal injury action filed against Bungi’s by the defendant, David L. Byrd. We agree and will grant the motion.

The facts are that Byrd was attacked and seriously injured in the parking lot of Bungi’s Lounge by Brian Phillips, a fellow patron of the lounge. The injuries sustained by Byrd were clearly caused by an intentional act or acts committed by Phillips. Byrd filed suit against Bungi’s, alleging that the injuries sustained by him were caused by the negligence of Bungi’s. While the averments of negligence are specific, they generally relate to the failure of Bungi’s to prevent the injuries while knowing of the patron’s violent propensities. Suit was not filed against Phillips.

Regis provided insurance coverage for Bungi’s pursuant to its special multi-peril policy. When asked by Bungi’s to defend Byrd’s lawsuit, Regis declined because of an assault and battery exclusion in the policy. Regis then filed this declaratory judgment action seeking a declaration that it has neither the duty to defend nor the duty to indemnify Bungi’s against Byrd’s claims. The language of the exclusion relied upon by Regis is set forth in endorsement RAB-3 (12/99), which provides, in relevant part, as follows:

“(I) In consideration of the premium charged for this insurance, it is understood and agreed that the policy to which this endorsement is attached is amended and modified as follows:...

“Actions and proceedings to recover damages for ‘bodily injury’ ... arising, in whole or in part, from the following are excluded from coverage, and the company is under no duty to investigate, defend or to indemnify an insured in any action or proceeding alleging such causes of action and damages:

“(1) Assault and battery or any act or omission in connection with the prevention, suppression or results of such acts;

“(2) Harmful or offensive contact between or among two or more persons;

“(3) Apprehension of harmful or offensive contact between or among two or more persons; or

“(4) Threats by words or deeds.

“(5) This exclusion applies to ‘bodily injury,’... or any obligation to investigate, defend or indemnify, if such injury, damage or obligation is caused directly or indirectly by any other cause or event that contributes concurrently or in any other sequence to the injury or damage. If injury or damage from a covered occurrence, cause or event occurs, and that injury or damage would not have occurred but for the acts or omissions set forth in paragraphs 1 through 4 above, such injury or damage will be considered to be caused by the acts or omissions set forth in paragraphs 1 through 4 above, and would be excluded from coverage.”

This exclusion applies regardless of the degree of culpability or intent and without regard to:

“(A) Whether the acts are alleged to be by or at the instruction or at the direction of the insured, his officers, employees, agents or servants; or by any other person lawfully or otherwise on, at or near the premises owned or occupied by the insured; or by any other person;

“(B) The alleged failure of the insured or his officers, employees, agents or servants in the hiring, supervision, retention or control of any person, whether or not an officer, employee, agent or servant of the insured;

“(C) The alleged failure of the insured or his officers, employees, agents or servants to attempt to prevent, bar or halt any such conduct or to medically treat or obtain such treatment for any injuries or damages sustained.” Complaint, exhibit B, Endorsement RAB-3 (12/99).

This endorsement was effective for the policy year beginning October 29,2003. However, the same endorsement had been a part of Bungi’s policy each year from October 29, 2000.

Since the parties have submitted evidence in addition to the pleadings, we will ignore the request for judgment on the pleadings and proceed to rule on the motion for summary judgment. Our Supreme Court recently reaffirmed the standard of review which governs motions for summary judgment.

“When a party seeks summary judgment, a court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery... .Amotion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. In considering the merits of a motion for summary judgment, a court views the record 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. Finally, the court may grant summary judgment only when the right to such a judgment is clear and free from doubt.” Swords v. Harleysville Insurance Companies, 584 Pa. 382, 389-90, 883 A.2d 562, 566-67 (2005). (citations omitted)

The duty of an insurer to defend is separate from its duty to indemnify. Wilcha v. Nationwide Mutual Fire Insurance Company, 887 A.2d 1254, 1258 (Pa. Super. 2005). The duty to defend is upon the insurer even if the underlying suit is groundless or fraudulent. Id. Consequently, whenever the underlying complaint alleges a claim which may potentially come within the coverage, the insurer must defend it. Id. Thus, we must first ascertain the scope of the coverage and then analyze the allegations in the complaint. Id.

The policy was issued to Bungi’s for a term beginning October 29, 2003 to October 29, 2004, and provided coverage which included bodily injury liability coverage, subject to the assault and battery exclusion herein-above set forth. Pursuant to RAB-3, excluded from such coverage are actions to recover damages for bodily injury arising, in whole or in part, from: (1) assault and battery or any act or omission in connection with the prevention, suppression or results of such acts; (2) harmful or offensive contact between or among two or more persons; or, (3) any other cause or event that contributes concurrently or in any other sequence to the injury; or, (4) an injury from a covered occurrence if the injury would not have occurred but for the acts or omissions set forth in items 1, 2 or 3.

A review of the underlying complaint establishes a claim by Byrd against Bungi’s based upon the fact that Byrd was “beaten” by Phillips, whose propensities for violence were known by Bungi’s. The complaint alleges that Byrd’s injuries were caused by the “carelessness, recklessness and negligence” in certain particulars. The particulars include: (1) failure to supervise the premises; (2) failing to prevent individuals from congregating in the parking lot, creating a potential for assaults; (3) failing to retain a security guard or monitoring system; (4) failing to provide adequate lighting; (5) permitting Brian Phillips to patronize its Lounge knowing of his violent propensities; and, (6) permitting Brian Phillips to remain in the Lounge after he had engaged in a fight earlier that evening.

All of the foregoing acts of alleged negligence come within the language of the exclusionary clause. However, the defendants seek to avoid the exclusionary clause on several bases. Bungi’s contends that the fight was voluntarily entered into by Byrd and that the exclusionary clause does not exclude negligence. Byrd contends that (1) his injuries were caused by Bungi’s negligence; (2) Bungi’s reasonably expected coverage for assault and battery; (3) Regis failed to give Bungi’s proper notice of a change in coverage; (4) Regis is bound by statements made by the independent insurance agent that Bungi’s had assault and batteiy coverage by reason of apparent authority.

FIGHT BY MUTUAL CONSENT

Bungi’s seems to be arguing that the fight was consensual and therefore the assault and battery exclusion does not apply. No authority is cited for this proposition because there is none. Even in a consensual fight, blows are struck with intent to do so. Therefore, an assault and batteiy still occurs. It may be less serious. Cf. 18 Pa.C.S. §2701(b)(1) (Assault is a misdemeanor of the second degree unless committed in a fight entered into by mutual consent in which case it is a misdemeanor of the third degree). But it is still an assault.

NEGLIGENCE

Both Bungi’s and Byrd argue that the exclusion does not apply because Byrd’s complaint alleges only negligence on the part of Bungi’s as the cause of Byrd’s injuries and not an assault and battery. This contention has been rejected where the contract terms unambiguously exclude coverage. Madison Construction Company v. Harleysville Mutual Insurance Company, 557 Pa. 595, 735 A.2d 100 (1999); Matcon Diamond Inc. v. Penn National Insurance Company, 815 A.2d 1109 (Pa. Super. 2003).

In the case at bar, the policy language excludes from its coverage actions to recover damages for bodily injury arising, in whole or in part, from assault and battery, or any act or omission in connection with the prevention, suppression or results of such acts, or, any other cause or event which contributes concurrently or in any other sequence to the injury, or an injury from a covered occurrence (negligence) if the injury would not have occurred but for the acts or omissions set forth herein-above. This contract language unambiguously excludes coverage for the acts of negligence alleged in Byrd’s complaint.

REASONABLE EXPECTATIONS

The general rule is that “courts cannot invoke the reasonable expectation doctrine to create an ambiguity where the policy itself is unambiguous.” Matcom Diamond Inc. v. Penn National Insurance Company, supra, at 1114. The two recognized exceptions to this rule include: (1) protecting non-commercial insureds from policy terms which are not readily apparent; and, (2) protecting noncommercial insureds from deception by insurance agents. Id., citing Madison Construction Company v. Harleysville Mutual Insurance Co., supra, 735 A.2d at 109 n.8.

These two exceptions do not apply to the case at bar for two reasons. First, the insured is a commercial insured rather than a non-commercial insured. Second, the policy terms are readily apparent. Nevertheless, Bungi’s cannot claim the reasonable expectation doctrine even if it was available to it. This is for the reason that the language of the exclusion was a part of its policy for several years and, as we have observed, clearly and unambiguously did not provide coverage for assaults.

FAILURE TO GIVE PROPER NOTICE OF CHANGE IN COVERAGE

The initial policy issued by Regis to Bungi’s had form RAB-2 (12/96). This form was changed the following policy year by form RAB-3 (12/99). Regis does not dispute that Bungi’s did not receive notice of this change. RAB-2 (12/96) and RAB-3 (12/99) are identical except for certain words or language which was inserted in RAB-3 (12/99) and did not appear in RAB-2 (12/96). In order to demonstrate the change, we have hereinafter set forth the language of RAB-3 (12/99) but have highlighted the words and language which were added to RAB-2 (12/ 96). It is as follows:

“ASSAULT AND BATTERY EXCLUSION AND COVERAGE DELETION ENDORSEMENT

“(I) In consideration of the premium charged for this insurance, it is understood and agreed that the policy to which this endorsement is attached is amended and modified as follows:

“Actions and proceedings to recover damages for ‘bodily injury’ or ‘property damage’ or ‘personal injury’ arising, in whole or in part, from the following are ex-eluded from coverage and the company is under no duty to investigate, defend or to indemnify an insured in any action or proceeding alleging such causes of action and damages:

“(1) Assault and battery or any act or omission in connection with the prevention, suppression or results of such acts;

“(2) Harmful or offensive contact between or among two or more persons;

“(3) Apprehension of harmful or offensive contact between or among two or more persons; or

“(4) Threats by words or deeds.

“(5) This exclusion applies to ‘bodily injury, ’ ‘property damage, ’ ‘personal injury ’ or any obligation to investigate, defend or indemnify, if such injury, damage or obligation is caused directly or indirectly by any other cause or event that contributes concurrently or in any other sequence to the injury or damage. If injury or damage from a covered occurrence, cause or event occurs, and that injury or damage would not have occurred but for the acts or omissions set forth in paragraphs 1 through 4 above, such injury or damage will be considered to be caused by the acts or omissions set forth in paragraphs 1 through 4 above, and would be excluded from coverage”

This exclusion applies regardless of the degree of culpability or intent and without regard to:

“(A) Whether the acts are alleged to be by or at the instruction or at the direction of the insured, his officers, employees, agents or servants; or by any other person lawfully or otherwise on, at or near the premises owned or occupied by the insured; or by any other person;

“(B) The alleged failure of the insured or his officers, employees, agents or servants in the hiring, supervision, retention or control of any person, whether or not an officer, employee, agent or servant of the insured;

“(C) The alleged failure of the insured or his officers, employees, agents or servants to attempt to prevent, bar or halt any such conduct or to medically treat or obtain such treatment for any injuries or damages sustained.”

This exclusion applies as well to any claims by any other person, firm or organization, asserting rights derived from or contingent upon any person asserting a claim excluded under Clauses A, B or C (above); specifically excluding from coverage claims for:

“(1) Emotional distress or for loss of society, services, consortium and/or income;

“(2) Reimbursement for expenses (including but not limited to medical expenses, hospital expenses and wages) paid or incurred by such other person, firm or organization;

“(3) Apprehension of harmful or offensive contact between or among two or more persons; or

“(4) Threats by words or deeds;

“(5) Any obligation to share damages with, or repay someone who must pay damages because of the injury.

“(II) It is further agreed between the insured and the company that:

“(1) If this policy contains the Broad form Comprehensive General Liability Endorsement (GL0404 ED 5-81), paragraph ‘XI Extended Bodily Injury Coverage,’ it is deleted from that endorsement and rendered null and void.

“(2) If this policy contains the Extended Form General Liability Endorsement (REGL1 6-94), paragraph ‘XI Extended Bodily Injury Coverage,’ it is deleted from that endorsement and rendered null and void.”

Byrd claims that Bungi’s policy was changed two different times without notice to Bungi’s, and therefore Regis cannot rely upon the Assault and Battery Exclusion. In support thereof, he cites Tonkovic v. State Farm Mutual Automobile Insurance Company, 513 Pa. 445, 521 A.2d 920 (1987). In that case, the insured had requested specific coverage and paid the full premium in advance. However, the policy was issued with an exclusion for the specific coverage. The insured never received the policy and the change in coverage was never explained to him. On these facts, the Supreme Court said:

“We hold that where, as here, an individual applies and prepays for specific insurance coverage, the insurer may not unilaterally change the coverage provided without an affirmative showing that the insured was notified of, and understood, the change, regardless of whether the insured read the policy.” 513 Pa. at 455, 521 A.2d at 925.

Byrd first contends that Bungi’s initially contacted the Benedict Insurance Agency to secure insurance and instructed Benedict that it wanted assault and battery coverage. Benedict initially placed Bungi’s insurance with Farmers Fire Insurance Company, which issued a policy with coverage for assault and battery. However, Benedict changed the coverage from Farmers Fire Insurance Company to Regis the following year (1999), which policy contained the exclusion set forth in RAB-2 (12/1996).

Byrd then contends that there is a factual question as to whether Benedict was an agent of Regis by way of apparent authority. If Benedict is found by a jury to be Regis’ agent, then Regis would be bound by Bungi’s reasonable expectation of assault and battery coverage under Pressley v. Travelers Property Casualty Corporation, 817 A.2d 1131 (Pa. Super. 2003). In Pressley, Travelers’ agent was requested by Pressley to add her mother to her policy with the same coverage. The agent promised to do so but failed to do so. Since Pressley’s mother did not reside in Pressley’s household, coverage was denied when her mother was killed. Superior Court held that the agent’s assurance created a reasonable expectation in Pressley that her mother was covered and that, since an insurer is liable for the acts of its agent who had authority to bind coverage, Travelers was liable. 817 A.2d at 1138 and 1141.

In the case at bar, Byrd points to the following facts as creating an issue of apparent authority. Benedict provided an initial risk assessment to Regis, presented premium quotes from Regis to Bungi’s, and bound coverage for Regis; collected premiums from Bungi’s and remitted to Regis; received the policy from Regis and either delivered or arranged for a delivery or pick up of the policy to or by Bungi’s.

“It is well settled that ‘ [ajpparent authority exists where a principal by words or conduct, leads people ... to believe that the principal has granted the agent authority he or she purports to exercise’. . . However, this court has not always required direct communication from the principal to the third party. Rather, this court has found apparent authority to be established with a showing of: (1) limited authority given to the agent by the principal; and (2) conduct of the agent which demonstrates to the third-party the agent’s apparent authority to bind the principal.” Leidigh v. Reading Plaza General Inc., 431 Pa. Super. 310, 314, 636 A.2d 666, 667-68 (1994). (emphasis in part in original and in part supplied)

Moreover, “a third party is entitled to believe [an] agent has the authority he purports to exercise only where a person of ordinary prudence, diligence and discretion would so believe.” Id. at 315, 636 A.2d at 668, citing Bolus v. United Penn Bank, 363 Pa. Super. 247, 262, 525 A.2d 1215, 1222 (1987).

In the case at bar, there is no evidence that Regis had given Benedict any authority, limited or otherwise. In addition, Bungi’s knew Benedict was an independent agent, acting on its behalf and not Regis’. Therefore, it cannot be said that Bungi’s was entitled to believe Benedict was Regis’ agent.

Byrd also contends that the assault and batteiy endorsement set forth in RAB-3 (12/99) is more restrictive to coverage than RAB-2 (12/96) and, since Bungi’s was not given notice of the changes nor were they explained to Bungi’s, Tonkovic applies and Regis cannot invoke the exclusion. We do not believe Tonkovic applies here for several reasons. First, the facts are different. The coverage in Tonkevic was placed by State Farm’s agent and State Farm unilaterally changed the coverage from what had been requested. The insured had not seen the policy. Here, the coverage was not placed by an agent of Regis and Regis did not unilaterally change the coverage. In fact, the coverage was essentially identical as had existed from the first through three prior policy years. Although the owner of Bungi’s had received the policies in each of the prior years, he had not read them and did not determine the presence or absence of the assault and battery exclusion. He did, however, acknowledge at his deposition that he understood the language of both RAB-2 and RAB-3 endorsements to mean that coverage for liability arising from a fight was excluded.

Second, the language of RAB-3 clearly and unambiguously excludes coverage for Byrd’s claim even if the added language in RAB-3 is ignored.

Consequently, insofar as exclusion from coverage is concerned, there was no change and so Tonkevic does not apply for that reason as well.

Finally, Regis’ motion cites a prior decision of this court as controlling. In Regis Insurance Co. v. Man-Cor Enterprises Inc., no. 10225 of 2006, Senior Judge Rowley decided a case which was essentially factually indistinguishable from the case at bar. He found the case to be controlled by Britamco Underwriters Inc. v. Grzeskiewicz, 433 Pa. Super. 55, 639 A.2d 1208 (1994) and held that the plaintiff’s allegations of negligence were clearly excluded by the assault and battery endorsement.

Byrd contends that Grzeskiewicz was disapproved by Superior Court, en banc, in Donegal Mutual Insurance Co. v. Baumhammers, 893 A.2d 797 (Pa. Super. 2006). We disagree as to the exclusionary clause. Both cases involved an issue of whether the alleged negligence of the insured, arising out of an assault by another patron, constituted an “occurrence” within the policy of insuranee as well as an issue of the applicability of an exclusion. Superior Court in Grzeskiewicz concluded that the allegation of the bar owner’s negligence did not constitute an “occurrence” as that term was defined in the policy. The court went on to hold that, notwithstanding its conclusion regarding the occurrence issue, the assault and battery endorsement clearly excluded coverage in the case.

The court in Donegal Mutual Insurance Co. v. Baumhammers, supra, criticized the holding of the court in Grzeskiewicz “that there was no occurrence, essentially concluding that, regardless of whether negligence by an insured may have led to the incident, unless the actor himself is alleged to have negligently caused the injuries, the incident may not be viewed an accident.” 893 A.2d at 808.

The court in Donegal Mutual Insurance Co. v. Baumhammers further said, “the holding in Grzeskiewicz produces an anomalous result: it allows for coverage under policies such as the Donegal policy where the insured himself negligently causes injury, but not where the insured negligently enables another actor to intentionally cause injury.” Id. at 809.

Finally, the court said “the main thrust of our Pennsylvania case law warrants a conclusion, and thus we hold that negligence leading to intentional acts may nevertheless be considered an ‘accident,’ and thus an ‘occurrence’ where so defined. To the degree that Grzeskiewicz holds otherwise, it is now expressly disapproved.” Id. at 810. That is the extent of the criticism of Grzeskiewicz in the Baumhammers ’ opinion. Thus, contrary to Byrd’s contention, Baumhammers does not disapprove the Grzeskiewicz holding regarding the application of the assault and battery endorsement.

An appropriate order is attached.

ORDER

For the reasons set forth in the attached opinion, the motion for summary judgment filed on behalf of Regis Insurance Company is granted. Regis Insurance Company owes Bungi’s Inc. t/a Bungi’s Lounge no duty to defend the underlying tort action filed by David L. Byrd at no. 11671 of 2004.

It is further declared that, if and when the underlying action results in a recovery by David L. Byrd against Bungi’s Inc., t/a Bungi’s Lounge on his claims, Regis Insurance Company has no duty to indemnify Bungi’s Inc. t/a Bungi’s Lounge for such recovery.

      . In ruling on a motion for judgment on the pleadings, the court must confíne itself to the pleadings themselves and any documents attached thereto. Wilcha v. Nationwide Mutual Fire Insurance Co., 887 A.2d 1254, 1258 (Pa. Super. 2005).


source: Caselaw Access Project

author: PEREZOUS, J,

license: Public Domain

text:
    Commonwealth v. Peters

      C.P. of Lancaster County,
    no. 1553-2001.

      Todd P. Kriner, assistant district attorney, for Commonwealth.

      James J. Karl, chief public defender, for defendant.

      April 4, 2006
   PEREZOUS, J,

On July 12, 2001, defendant, Kevin Lee Peters, pled guilty to five counts of rape (FI), three counts of involuntary deviate sexual intercourse (FI), one count of indecent assault (Ml), two counts of indecent assault (M2), and six counts of corruption of minors (Ml). After accepting the plea, the court deferred sentencing and ordered defendant to undergo an assessment by the State Sexual Offenders Assessment Board in accordance with the provisions of Pennsylvania’s Megan’s Law. Megan’s Law provides for the adjudication of the defendant as a “sexually violent predator” (SVP) in a separate proceeding following his conviction of a predicate offense. 42 Pa.C.S. §9795.4(e). Rape, involuntary deviate sexual intercourse, and indecent assault as a misdemeanor of the first degree are predicate offenses under Pennsylvania’s Megan’s Law. 42 Pa.C.S. §9795.1.

On November 15, 2005, a hearing was held to determine whether the defendant was an SVP. At the conclusion of this hearing, the court directed the parties to submit proposed findings of fact and conclusions of law. These were filed by the Commonwealth and the defendant on or about January 13,2006 and February 15,2006, respectively. Based upon a review of the record, together with the proposed findings of fact and conclusions of law provided by the parties, the court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

(1) Defendant pled guilty to five counts of rape (FI), three counts of involuntary deviate sexual intercourse (FI), one count of indecent assault (Ml), two counts of indecent assault (M2), and six counts of corruption of minors (Ml).

(2) Rape, involuntary deviate sexual intercourse, and indecent assault as a misdemeanor of the first degree are predicate offenses under Pennsylvania’s Megan’s Law.

(3) Dr. Robert Stein is a licensed psychologist able to render an opinion on defendant’s possible classification as an SVP.

(4) In rendering his opinion to a reasonable degree of professional certainty, Dr. Stein relied upon a report completed by the board’s investigator, police reports, the victims’ medical reports, Children and Youth reports, DOC records, a prior assessment, and an interview with the defendant.

(5) In rendering his assessment, Dr. Stein addressed a number of issues as required by the statute. Such issues included the number of victims, the nature of the offenses, the relationship between the victim and the offender, the age of the victims, whether or not there was any unusually cruel type of behavior, mental capacity of the victims, any criminal history (non-sexual and sexual), any substance abuse, the age of the offender, and any other factors relevant in the field related to the issue of risk.

(6) The offenses to which the defendant pled guilty involved six victims. All of the victims were young boys. Four of the victims were under 10 years of age. Dr. Stein testified that these factors were relevant to the issue of pedophilia.

(7) The nature of the sexual contact with the victims began with touching, and escalated over time to oral and anal sex. Multiple sex acts occurred in multiple locations. Physical pain was associated with some of the sexual assaults. In at least one case, defendant forced anal intercourse after a boy refused. Dr. Stein testified that these factors were relevant to the issue of predatory behavior.

(8) The victims were not strangers to the defendant. They were residents of the group home where he had lived. Dr. Stein testified that this factor related to the predatory nature of the defendant’s behavior.

(9) The defendant would arrange to be alone with the victims for extended periods of time, and would bribe the boys with fishing lures, money and candy. In a fixed and repeated pattern, the defendant would exchange money and gifts in return for sex. Dr. Stein testified that these factors also displayed the predatory nature of the defendant’s behavior.

(10) The victims were of normal mental capacity. Dr. Stein testified that this factor was not relevant in terms of risk that the defendant would re-offend.

(11) Defendant has no prior criminal history, or history of sexual offenses. Dr. Stein testified that this factor would not increase any risk.

(12) Defendant was a daily cocaine and crack user. Dr. Stein testified that it is unclear as to the degree to which drugs impacted these offenses.

(13) Defendant was 25 years old when these sexual offenses started. There is some indication, however, that offending started when he was a teenager. Dr. Stein testified that this factor increases the risk that the defendant is likely to re-offend.

(14) Defendant’s behavior involved sexual interest in young boys. Dr. Stein testified that sexual interest in young boys is associated with higher risk than interest in young girls.

(15) Defendant has a tested IQ in the seventies. Dr. Stein testified this could increase risk based upon difficulties in learning the relapse prevention techniques taught in sex-offender treatment.

(16) Defendant was diagnosed as suffering from pedophilia based upon the age of the victims and the lengthy period of the defendant’s sexual behavior, which included ejaculation associated with the defendant’s sexual interest in young children.

(17) Dr. Stein further opined that the behavior of the defendant was consistent with the statutory definition of predatory behavior.

(18) In Dr. Stein’s opinion, the defendant is likely to engage in predatory sexual behavior, and should be classified as an SVP.

DISCUSSION

Under Megan’s Law II, a defendant convicted of an offense specified in 42 Pa.C.S. §9795.1(a)-(b) is subject to an assessment conducted by the Sexual Offender Assessment Board. 42 Pa.C.S. §9795.4(a). After the trial court orders such an assessment, the Assessment Board’s administrative office designates a member of the board to determine whether the individual should be classified as an SVP. 42 Pa.C.S. §9795.4(b).

An SVP is defined as follows:

“A person who has been convicted of a sexually violent offense as set forth in 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” 42 Pa.C.S. §9792.

“Mental abnormality” is defined as “[a] congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons.” Id. A “predatory” offense, moreover, is defined as “[a]n act directed at a stranger or at a person with whom a relationship has been established or promoted for the primary purpose of victimization.” Id.

As our courts have stated, the board’s assessment must first determine the cause of the offense, i.e., whether the offense proceeded from a mental defect/disorder or another factor. Commonwealth v. Plucinski, 868 A.2d 20, 26 (Pa. Super. 2005). If the existence of such a defect/ disorder is established, then the board determines the future likelihood that the defendant will repeat his offense. 42 Pa.C.S §9792; Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593, 607 (1999) (emphasizing that the statutory provisions require a subjective determination of an offender’s future dangerousness). Theoretically, the extent to which the offender is likely to re-offend is answered by the question concerning the defendant’s motivation for committing the offense. Plucinski, 868 A.2d at 26. In addition, the board must consider several factors listed in 42 Pa.C.S. §9795.4. These factors provide “criteria by which such likelihood may be gauged.” Id. Consequently, the assessment must include an examination of the following criteria:

“(1) Facts of the current offense, including:

“(i) Whether the offense involved multiple victims.

“(ii) Whether the individual exceeded the means necessary to achieve the offense.

“(iii) The nature of the sexual contact with the victim,

“(iv) Relationship of the individual to the victim.

“(v) Age of the victim.

“(vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the crime.

“(vii) The mental capacity of the victim.

“(2) Prior offense history, including:

“(i) The individual’s prior criminal record.

“(ii) Whether the individual completed any prior sentences.

“(iii) Whether the individual participated in available programs for sexual offenders.

“(3) Characteristics of the individual, including:

“(i) Age of the individual.

“(ii) Use of illegal drugs by the individual.

“(iii) Any mental illness, mental disability or mental abnormality.

“(iv) Behavioral characteristics that contribute to the individual’s conduct.

“(4) Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of re-offense.” 42 Pa.C.S. §9795.4.

Once a written report of the assessment is submitted and a praecipe is filed by the district attorney, a hearing is convened by the court to determine whether the defendant is an SVP. 42 Pa.C.S. §9795.4(d)-(e); Commonwealth v. Krouse, 799 A.2d 835, 839 (Pa. Super. 2002). At this hearing, the Commonwealth bears the burden of proving, by clear and convincing evidence, that the defendant meets the definition of an SVP. 42 Pa.C.S. §9795.4(e)(3).

The defendant contends that the Commonwealth failed to prove by clear and convincing evidence that the defendant is likely to re-offend. They argue that Dr. Stein opined that he was likely to re-offend solely by his diagnosis of a mental abnormality coupled with a finding that the acts were predatory, and not by a particularized risk assessment governed by a weighing of the statutory factors set forth at 42 Pa.C.S. §9795.4. They further argue that a weighing of such factors mitigates against any such finding. Consequently, the defendant avers that the Commonwealth failed to establish that he meets the definition of an SVP.

In Commonwealth v. Graham, no. 3267-2002, opinion and order dated December 27, 2005, and Commonwealth v. Reed, nos. 0930-2001, 2264-2001, 2311-2001, opinion and order dated December 27,2005, the Honorable James P. Cullen found that the Commonwealth failed to meet its burden in establishing the defendants’ status as SVPs because the assessments did not address the defendants’ likelihood to re-offend. In these cases, the expert never interviewed the defendants, and acknowledged that he was not in a position to offer an opinion regarding the likelihood of recidivism. The expert used the criteria in 42 Pa.C.S. §9795.4 solely to determine whether the defendants met the definitions of mental abnormality and predatory behavior, and did not examine the factors as they related to the defendants’ likelihood to re-offend. As the court stated in Graham, the doctor “appears to have proceeded on the basis that if the [djefendant suffered from a defined mental abnormality and engaged in defined predatory behavior, then he must be classified as a sexually violent predator.” Graham, p. 10.

These cases, however, can be distinguished from the present scenario. In the present case, the defendant was interviewed, and, most importantly, Dr. Stein examined the factors listed in 42 Pa.C.S. §9795.4 as they related to the risk that the defendant would re-offend. See N.T. 11/ 15/2005, pp. 4-6. Although Dr. Stein stated that “[i]f an individual meets the statutory definition of mental abnormality and if that same individual meets the statutory definition of predator behavior, they are then deemed likely to engage in predator sexual behavior,” id. at 9, he also engaged in an examination of the statutory factors as they related to risk.

Dr. Stein’s opinion that the defendant was likely to engage in predatory behavior was not merely a reflexive conclusion drawn from his diagnosis of a mental abnormality and a finding that the acts which the defendant engaged in were predatory. He acknowledged that some of the factors, such as the cessation of defendant’s drug use, mitigated against a finding that he was likely to re-offend. Nevertheless, he concluded that the defendant was likely to engage in predatory sexual behavior. This conclusion was based upon his assessment of the defendant, which included an analysis of the risk factors associated with the defendant. As such, this court does not find any fault in the expert opinion submitted by the Commonwealth. Accordingly, the court makes the following conclusions of law.

CONCLUSIONS OF LAW

(1) Based upon the age of the victims, together with Dr. Stein’s testimony, the Commonwealth proved by clear and convincing evidence that the defendant suffers from pedophilia. This condition predisposes an individual to the commission of sex offenses and qualifies as a mental abnormality under Megan’s Law.

(2) Based upon the nature of the offenses, including the manner of the defendant’s relationship with the victims, the fixed and repeated escalation over time from touching to oral and anal sex, and offers of bribes in return for sex, together with Dr. Stein’s testimony, the Commonwealth proved by clear and convincing evidence that the defendant engaged in predator/ behavior as that term is defined by Megan’s Law.

(3) Based upon Dr. Stein’s analysis of the factors listed in 42 Pa.C.S. §9795.4, including factors related to the risk of re-offense, together with his opinion with respect to defendant’s likelihood to re-offend, the Commonwealth proved by clear and convincing evidence that the defendant is likely to engage in predatory sexually violent offenses in the future.

(4) The Commonwealth established by clear and convincing evidence that the defendant is a sexually violent predator.

ORDER

And now, April 4, 2006, upon consideration of the evidence presented during the adjudication of defendant, Kevin Lee Peters’ status as a sexually violent predator, including the assessment presented by the Sexual Offender Assessment Board, this court determines that the Commonwealth has proved by clear and convincing evidence that defendant is a sexually violent predator.

      . 18 Pa.C.S. §3121(a)(6).

      . 18 Pa.C.S. §3123(a)(6).

      . 18 Pa.C.S. §3126(a)(7).

      . 18 Pa.C.S. §3126(a)(8).

      . 18 Pa.C.S. §6301(a).

      . Thereafter, defendant filed a motion challenging the constitutionality of Megan’s Law II’s sexually violent predator provision and to bar a second prosecution for the same offense. The court heard argument on the issue on July 17,2001. On August 7, 2001, the court entered an order declaring Megan’s Law not constitutionally valid. The Commonwealth appealed.
      On September 25,2003, the Pennsylvania Supreme Court decided Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003). In this case, the court decided that the registration, notification, and counseling requirements of Megan’s Law II were non-punitive. On March 23, 2004, the Pennsylvania Supreme Court reversed the decision of the Lancaster County Court of Common Pleas in the present matter. The court ordered the case to be remanded for proceedings consistent with the court’s decision in Williams.

      On April 13, 2004, this court issued a rule to show cause why the defendant should not undergo the mandatory assessment by the Sexual Offenders Assessment Board as required by Megan’s Law II. The parties submitted letters to the court. On June 23, 2004, the defendant filed a motion for evidentiary hearing and argument on remand challenging the constitutionality of the “sexually violent predator” provisions of Pennsylvania’s Megan’s Law II and seeking suppression of evidence obtained and used by the Sexual Offenders Assessment Board in performing its court-ordered assessment of the defendant. This court denied the defendant’s motion, excepting the void for vagueness challenge and its implications in terms of the remedial versus punitive dynamics of the statute.

      . Dr. Stem’s analysis of these factors is addressed in the findings of fact section of this opinion.


author: QUIÑONES ALEJANDRO, J,

text:
    McGonigle v. Ansel

      C.P. of Philadelphia County,
    December Term 2004,
    no. 2493.
    February 23, 2006

      Neil E. Jokelson, for plaintiff.

      William J. Spearing, for defendant Ansel.

      Randall J. Henzes, for defendant Mcllmail.
   QUIÑONES ALEJANDRO, J,

OPINION

INTRODUCTION

On June 14, 2004, Margaret McGonigle (plaintiff), represented by Neil E. Jokelson, Esquire, filed in the United Slates District Court for the Eastern District of Pennsylvania a civil action against defendant Michael Mcllmail, an agent with the Pennsylvania Office of the Attorney General, and defendant William Ansel, a police officer assigned to the Philadelphia Internal Affairs Department, alleging that said defendants conspired to wrongly accuse her of appearing in federal court as a character witness for a criminal defendant in violation of a Philadelphia Police Department directive. Defendants filed a motion to dismiss the complaint for lack of federal jurisdiction. Said motion was granted by an order entered on November 29, 2004, which provided, in its pertinent part, that the dismissal of the complaint was “without prejudice to plaintiff’s right to re-file them in the appropriate state court.”

On December 22, 2004, plaintiff, still represented by Attorney Jokelson, filed a writ of summons against defendants Mcllmail and Ansel in the First Judicial District of Pennsylvania (Philadelphia) Court of Common Pleas. On January 25, 2005, plaintiff filed a complaint against defendants alleging similar averments as those contained in her federal complaint; to wit: defendants conspired to wrongly accuse her of appearing in federal court as a character witness for a criminal defendant in violation of a Philadelphia Police Department directive, and with separate counts of intentional infliction of emotional distress, and interference with present and prospective business and/or contractual relations.

On October 3,2005, and October 18,2005, defendants Mcllmail and Ansel, respectively, filed motions for summary judgment pleading numerous grounds for the dismissal of plaintiff’s complaint. By order dated November 30, 2005, this motion judge granted the motions for summary judgment solely on the basis that the statue of limitations had expired.

Dissatisfied with the rulings, plaintiff filed this appeal on December 28, 2005.

RELEVANT FACTUAL AND PROCEDURAL HISTORIES

After a careful review of the pleadings filed, this motion judge considered the following factual and procedural histories:

In 1997, plaintiff was hired as a police officer by and for the City of Philadelphia, Pennsylvania.

On November 14, 2001, plaintiff, who was on leave for a work-related injury, along with her police partner, Officer Bashawn Harneen, accompanied plaintiff’s mother to the federal courthouse where plaintiff’s brother, John McGonigle, was awaiting a pretrial detention (bail) hearing for narcotics violation charges. Plaintiff was not there in an official capacity nor had she been subpoenaed to be present, nor had she notified the Police Commissioner of her intent to be in the courtroom. Present at the hearing was defendant Mcllmail, an agent employed by the Pennsylvania Attorney General’s Office.

What transpired during and after the bail hearing is contested and is what has prompted plaintiff’s lawsuit. Plaintiff contends that defendant Mcllmail reported to his supervisor that during the bail proceedings the presiding judge asked the audience in the courtroom if anyone was there on behalf of John McGonigle to attest to his good character and that, allegedly, plaintiff, who was in plain clothes and on crutches, stood up. In response to the judge’s inquiry and other remarks, defense counsel for Mr. McGonigle referred to plaintiff as a Philadelphia police officer who was present and willing to allow her brother, the defendant, to live with her.

Plaintiff admits that she was present at the bail hearing but denies that she stood up and/or responded that she was there on behalf of her brother. She further contends that the transcript of the proceedings would support her contentions.

When the bail hearing concluded, defendant Mcllmail allegedly reported his version of events to his supervisor and questioned plaintiff’s presence at the bail hearing. In early December 2001, Robert Montague, another agent in the Pennsylvania Attorney General’s office, contacted Captain Donna Sykes, plaintiff’s commanding officer, and inquired if she knew that plaintiff had been a character witness for a defendant in a criminal hearing. If true, this action would violate a Philadelphia Police Department directive which prohibits police officers from appearing or testifying as a character witness for any defendant in a criminal proceeding, if done, without being subpoenaed and previously notifying the Philadelphia Police Commissioner.

Relying on this information, Captain Sykes, on December 3, 2001, forwarded a request to the Deputy Police Commissioner for Internal Affairs to investigate this charge. This request was ultimately assigned to defendant Ansel, who interviewed plaintiff twice (on June 12, 2002, and on March 20, 2003), her police partner once, and submitted written questionnaires to the Attorney General’s agents and police officer involved. As part of his investigation, however, defendant Ansel did not obtain the transcript of the bail proceedings. After compiling his findings, defendant Ansel submitted a report to his supervisor, Inspector Horn. His investigation concluded that plaintiff had violated the police directive. On April 17,2003, Inspector Horn approved and signed off on the investigation report. The case was then referred to the Police Board of Inquiry for potential disciplinary action. Plaintiff was given notice and requested a hearing.

During the disciplinary hearing, plaintiff was assisted by counsel and presented evidence. She was found guilty by the Police Board of Inquiry of violating the Police Department’s directive and was given a five-day suspension, to wit: from March 15 through March 19, 2004. Plaintiff successfully appealed this suspension pursuant to her union contractual rights before an arbitrator, who reversed the suspension and issued a favorable decision for plaintiff on May 17, 2005.

Plaintiff alleges that due to defendant Ansel’s faulty investigation she has suffered emotional distress in the form of depression, paranoia and suicidal thoughts.

Procedurally, the following events are pertinent to this analysis:

As stated, plaintiff filed an action in federal court against defendants on June 14, 2004. This action was dismissed for lack of jurisdiction by order entered on November 29,2004.

From the official record (dockets), it appears that on December 22,2004, plaintiff filed a writ of summons in the Philadelphia Court of Common Pleas against defendants. Counsel for defendants entered their appearances on January 5, 2005. On that same date, a rule to file a complaint was served onto plaintiff. On January 25,2005, plaintiff filed her complaint against defendants.

Preliminary objections were filed on March 7, 2005, and were disposed of by orders entered on April 8,2005.

Defendant Mcllmail filed an answer to the complaint with new matter on September 16, 2005. Both defendants filed an answer to the complaint and new matter on September 28, 2005.

On October 3,2005 and October 18,2005, defendants Mcllmail and Ansel, respectively, filed a motion for summary judgment. These motions were granted by this motion judge by orders dated November 30, 2005.

Plaintiff appealed these rulings on December 28,2005. This motion judge issued a Rule 1925(b) order dated January 4, 2006, which was entered of record on January 6, 2006.

ISSUES

In response to said Rule 1925(b) order, plaintiff, on January 16,2006, served unto this motion judge a statement of matters complained of on appeal and essentially argued that this motion judge erred:

(1) in finding that the action was filed beyond the statute of limitations and not considering that defendant Ansel’s tortious conduct continued, at least, until April 3, 2003, when the internal affairs investigation report was issued;

(2) in finding that the action was filed beyond the statute of limitations; and

(3) in not specifying or issuing an opinion in support of its ruling.

LAW AND DISCUSSION

Succinctly, plaintiff argues that this motion judge erred in granting defendants’ motions for summary judgment. This motion judge disagrees.

Motions for summary judgment are governed by the provisions of Pennsylvania Rules of Civil Procedure 1035.1-1035.5. Specifically, Rule 1035.2 provides:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law:

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

When evaluating the merits of a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Haney v. Pagnanelli, 830 A.2d 978, 980 (Pa. Super. 2003). “Summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions and affidavits, and other materials demonstrate that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” The Brickman Group Ltd. v. CGU Insurance Company, 865 A.2d 918, 922 (Pa. Super. 2004). However, a motion for summary judgment should only be granted where it is clear and free of doubt. Marks v. Tasman, 527 Pa. 132, 134-35, 589 A.2d 205, 206 (1991). A defendant may make the showing necessary to support the entry of summary judgment in defendant’s favor by pointing to materials which indicate that the plaintiff is unable to satisfy the elements of his/her cause of action. Godlewski v. Pars Manufacturing Company, 408 Pa. Super. 425, 431, 597 A.2d 106, 109 (1991).

The party seeking to avoid the entry of a summary judgment may not merely rest on the averments in the pleadings; the party must show that there is a genuine issue for trial. Buckno v. Penn Linen & Uniform Service Inc., 428 Pa. Super. 563, 566, 631 A.2d 674, 676 (1993), appeal denied, 538 Pa. 639, 647 A.2d 895 (1994); Johnson v. Harris, 419 Pa. Super. 541, 549, 615 A.2d 771, 775 (1992). Furthermore, the party opposing summary judgment must adduce sufficient evidence on issues essential to his/her case and on which (s)he bears the burden of proof such that a jury could return a verdict in his or her favor; failing to adduce such evidence establishes that there is not a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Ertel v. Patriot-News Company, 544 Pa. 93, 101, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996). The trial court has discretion in this determination and will only be reversed where it is established that the court committed an error of law or abused its discretion. Pappas v. Asbel, 564 Pa. 407, 768 A.2d 1089, 1095 (2001).

The purpose of a motion for summary judgment is to expedite the trial of a matter, Phaff v. Gerner, 451 Pa. 146, 150, 303 A.2d 826, 829 (1973), and avoid a useless trial where a party lacks the beginnings of evidence to establish or contest a material issue. Ertel v. Patriot-News Company, 544 Pa. 93, 100, 674 A.2d 1038, 1042 (1996).

Here, in his motion for summary judgment, defendant Ansel moved for the dismissal of plaintiff’s complaint on the basis of: the expiration of the statute of limitations, immunity by Pennsylvania’s Political Subdivision Tort Claims Act, failure to state a claim for intentional infliction of emotional distress, and failure to prove tortious interference with a contract. Defendant Mcllmail’s motion for summary judgment presented a similar argument for the dismissal of plaintiff’s complaint, except for the statute of limitations argument which was not included. As stated, this motion judge granted the motions for summary judgment based on the statute of limitations argument. This opinion will only address this issue.

Undisputedly, actions and/or proceedings based on allegations of intentional infliction of emotional distress and/or tortious interference must be commenced within two years of the incident. See 42 Pa.C.S. §5524(7). An action claiming libel and/or slander must be commenced within one year of the event. See 42 Pa.C.S. §5522(1). The statute of limitations for any action begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding does not toll the running of the statute of limitations. Dalrymple v. Brown, 549 Pa. 217, 223, 701 A.2d 164, 167 (1997).

Here, plaintiff’s complaint contains averments sounding in a conspiracy to slander and/or libel, with specific allegations of intentional infliction of emotional distress and tortious interference. Of note, the cover sheet attached to plaintiff’s praecipe to issue summons, which was presumably filled out by plaintiff’s counsel, identified the case type and code as: 2L-Libel and Slander. (The complaint does not have a cover sheet.) Thus, if this matter is accepted as strictly a libel/slander cause of action, then the statute of limitations in which to file a complaint is one year. Notwithstanding whether this matter is governed by a one-year or a two-year statute of limitations, crucial to this analysis is the question, when did plaintiff know or should have known that she was injured by defendants?

In his motion for summary judgment, defendant Ansel argued that the statute of limitations commenced in June 2002, when plaintiff experienced her psychological injuries. Under this premise, the statute of limitations deadline to commence an action for intentional infliction of emotion distress and the tortious interference expired in June 2004. Plaintiff reluctantly acknowledged that her first injury or awareness of an injury occurred on June 14,2002, thus, triggering the commencement of the statute of limitations. Notwithstanding this admission, plaintiff contends that the statute of limitations was tolled when she filed the original complaint in federal court on June 14,2004. Plaintiff also argues that because she continued to suffer injuries in the year 2003 and beyond, the statute of limitations did not expire in June 2004, nor has it yet expired.

For the purpose of this opinion, this motion judge accepted plaintiff’s acknowledgment that the statute of limitations commenced on June 14, 2002, albeit a reluctant acknowledgment. However, this motion judge could easily find that the statue of limitations commenced even earlier than the June 14, 2002 date since plaintiff knew of the Police Department’s investigation of her courtroom appearance in federal court and the alleged erroneous charges against her long before she experienced her psychological injuries. In this motion judge’s opinion, her knowledge of these events is what triggers the commencement of the statute of limitations, not when she knows of an injury. See Baselice v. Franciscan Friars Assumption BVM Province Inc., 879 A.2d 270, 276 (Pa. Super. 2005), quoting Haggart v. Cho, 703 A.2d 522, 526 (Pa. Super. 1997), for the proposition that a statute of limitations begins to run in such instances when the injured party “possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress.” Nonetheless, taking the date of June 14,2002, as the commencement date for the statute of limitations to file a complaint, plaintiff’s action for libel and/or slander would have had to be filed by June 2003. Thus, plaintiff’s complaint in libel and/or slander filed in federal court was untimely filed. However, if plaintiff’s civil action was not a libel and/or slander cause of action, but instead was deemed an action for intentional infliction of emotion distress and the tortious interference, then the cause of action filed in federal court was timely filed.

Putting aside this motion judge’s observation and opinions, of critical importance are the provisions of 42 Pa.C.S. §5103(b). These provisions provide:

“(b) Federal cases.

“(1) Subsection (a) shall apply to any matter transferred or remanded by any United States court for a district embracing any part of this Commonwealth. In order to preserve a claim under chapter 55 (relating to limitation of time), a litigant who timely commences an action or proceeding in any United States court for a district embracing any part of this Commonwealth is not required to commence a protective action in a court or before a district justice of this Commonwealth. Where a matter is filed in any United States court for a district embracing any part of this Commonwealth and the matter is dismissed by the United States court for lack of jurisdiction, any litigant in the matter filed may transfer the matter to a court or magisterial district of this Commonwealth by complying with the transfer provisions set forth in paragraph (2).

“(2) Except as otherwise prescribed by general rules, or by order of the United States court, such transfer may be effected by filing a certified transcript of the final judgment of the United States court and the related pleadings in a court or magisterial district of this Commonwealth. The pleadings shall have the same effect as under the practice in the United States Court, but the transferee court or district justice may require that they be amended to conform to the practice in this Commonwealth. Section 5535(a)(2)(i) (relating to termination of prior matter) shall not be applicable to a matter transferred under this subsection.” 42 Pa.C.S. §5103(b).

The language of these provisions is clear and unambiguous. If a matter is originally filed within the statute of limitations in the federal court, but is dismissed for lack of jurisdiction by the federal court, the litigant may then effect a transfer of the action to state court by complying with the provisions set forth in 42 Pa.C.S. §5103(b)(2). Williams v. F.L. Smithe Machine Company Inc., 395 Pa. Super. 511, 515, 577 A.2d 907, 909 (1990). The state court will treat the matter as if originally filed in the state court if the litigant complies with the dictates of said section 5103(b)(2). Williams, at 515, 577 A.2d at 909. It is also clear from reading section 5103(b) that, in order for the statute to apply to prevent a litigant from losing the opportunity to litigate his/her case on the merits simply because (s)he is in error regarding federal jurisdiction, it is not necessaiy that the federal court transfer the case or take other action following the determination that federal jurisdiction is absent. Id. All that is required is an order entered by the federal court dismissing the matter for lack of jurisdiction. Id. It is then incumbent upon the litigant to take further action under the statute to move the case to state court. Id.

However, for benefit of both bench and bar, the appellate court in Williams emphasized that in order to protect the timeliness of an action under section 5103(b), a litigant, upon having the case dismissed in federal court for lack of jurisdiction, must promptly file in state court a certified transcript of the final judgment of the federal court and, at the same time, a certified transcript of the pleadings from the federal action. Id. at 516-17, 515 A.2d at 910. The litigant shall not file new pleadings in state court. Id.

Here, plaintiff did not adhere to the provisions of section 5103(b) and/or the holding and recommendations in Williams. That is, when the cause of action in federal court was dismissed on November 29, 2004, for lack of jurisdiction, in order to preserve her claim, plaintiff was required to promptly move the action to the state court by filing certified transcripts of the final judgment of the federal court and the related pleadings in the state court of common pleas. The pleadings would have had the same effect as under the practice of the federal court, thus, preserving the timeliness of the filing of the action. In reviewing the official record (docket), there is no indication that plaintiff complied with the requirements set forth in section 5103(b)(2). The only reference to the federal action is contained in exhibit D of plaintiff’s response to defendant Ansel’s motion for summary judgment identified as control no. 101073. Said exhibit consists of a printed version of an uncertified, unofficial “pacer” docket sheet for the federal case. In neither plaintiff’s response to, nor in defendant Ansel’s motion for summary judgment, do the parties assert that there are any certified transcripts of the final judgment from the federal action filed with the complaint. Absent any evidence to the contraiy, plaintiff has failed to comply with the requirements of section 5103(b). Plaintiff’s failure to adhere to these requirements resulted in her complaint being untimely filed in the court of common pleas. In light of this procedural flaw, it is the opinion of this motion judge that plaintiff’s state action was filed after the statute of limitations had expired and therefore, was properly dismissed with the granting of defendants’ motions for summary judgment.

In summary, and despite this motion judge’s observations and analysis of the procedural history, for the purpose of these motions for summary judgment, this motion judge accepted the fact that the statute of limitations for plaintiff’s complaint commenced no later than June 14, 2002, when plaintiff was interviewed by defendant Ansel, as part of the internal affairs inquiry regarding her presence at her brother’s criminal bail hearing and, allegedly, suffered psychological injuries. In this motion judge’s opinion, her action in libel/slander should have been filed by June 2003. As stated, her federal action was not filed until June 14, 2004.

Assuming arguendo that plaintiff’s complaint is strictly one of intentional infliction of emotional distress and tortious interference, then the statute of limitations expired in June 2004, as the parties have argued. Under this premise, although it appears that plaintiff timely filed an action in federal court (on June 14,2004), this federal action, however, was dismissed by order dated November 29, 2004. As stated, an individual action filed in federal court does not toll the running of the statute of limitations as to an action in state court. To preserve whatever cause of action may exist when the federal action is dismissed for lack of jurisdiction, that timely filed federal action must be transferred promptly to a state court. This transfer is effectuated by filing a certified copy of the final judgment and related pleadings in a state court. Because plaintiff failed to comply with the statute governing transfers from a federal to a state court; to wit: 42 Pa.C.S. §5103(b), and mistakenly filed a new, although identical complaint in state court (on December 22,2004, beyond the statute of limitations), her complaint in state court, in this motion judge’s opinion, is deemed untimely filed and its dismissal proper. Further, the dockets reveal that more than 14 months have passed since the dismissal of her federal action and plaintiff has yet to file certified transcripts of the final judgment and related pleadings from the federal action.

CONCLUSION

Based upon the above-cited analysis and case law, this motion judge is of the opinion that no error was committed when granting defendants’ motions for summary judgment. This motion judge respectfully requests that plaintiff’s appeal be dismissed on its merits and for failure to comply with Pa.R.A.P. 1925(b), and that orders dated November 30, 2005, be affirmed.

      . Pursuant to the provisions of Pennsylvania Rule of Appellate Procedure 1925(b), this motion judge issued an order dated January 4, 2006, directing plaintiff to file of record and serve unto this motion judge a statement of matters complained of on appeal. Plaintiff served unto this motion judge but did not file of record the statement of matters complained of on appeal. In this motion judge’s opinion, plaintiff is deemed to have waived any appellate argument and, consequently, this appeal should be dismissed. See Hartdegen v. Berger, 839 A.2d 1100, 1103-1105 (Pa. Super. 2003). Notwithstanding, and in the interest of judicial economy, this opinion is being issued to address plaintiff’s waived issues.

      . Defendant Ansel’s motion for summary judgment, page one.

        .Id.

      . Id.

        . Id.

      . Plaintiff’s response to defendant Ansel’s motion for summary judgment, page three.

      . Defendant Mcllmail’s motion for summary judgment, page one.

      . See complaint, paragraph six.

      . Defendant Ansel’s motion for summary judgment, page two; plaintiff’s response to defendant Ansel’s motion for summary judgment, page three.

      . Plaintiff’s complaint, paragraph nine; plaintiff’s response to defendant Ansel’s motion for summary judgment, page two.

      . Defendant Ansel’s motion for summary judgment, page two.

      . See the Internal Affairs report dated April 3, 2003, page three.

      . Id.

      . Id.

      . Id.

      . Id.

      . See City of Philadelphia, Pennsylvania, and Fraternal Order of Police Lodge No. 5, AAA case no. 1439075404.

      . Plaintiff’s response to defendant Ansel’s motion for summary judgment, page 15.

      . Pennsylvania Rule of Appellate Procedure 1925(b).

      . As of the date of this opinion, plaintiff has not filed of record a concise statement of the matters complained of on appeal in violation of Rule 1925(b).

      . See Court of Common Pleas of Philadelphia County Trial Division Civil Cover Sheet.

      . Plaintiff’s response to the motion for summary judgment, page 10.


author: JOHNSON, J.,

text:
    Pursel v. McCartney

      C.P. of Lehigh County,
    no. 2003-C-3368.
    February 15, 2006

      Anne K. Manley, for plaintiffs.

      Joseph F. McNulty Jr., for defendant.
   JOHNSON, J.,

Before the court for consideration is the motion for summary judgment on behalf of defendant Robert Greacen filed on December 27, 2005. The court heard argument on this motion on February 2, 2006. For the reasons that follow, the defendant Robert Greacen’s motion will be granted in part and denied in part.

DISCUSSION

1. Count III: Negligence

In Count III of the plaintiffs’ third amended complaint, the plaintiffs seek damages for Greacen’s alleged negligence. Greacen argues that the claim fails as a matter of law because it is barred by the Political Subdivision Tort Claims Act (PSTCA). Under the PSTCA:

“An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing agency and subject to the limitations imposed by this subchapter.” 42 Pa.C.S. §8545. This protection extends to school teachers. Brown v. Quaker Valley School District, 86 Pa. Commw. 496, 499, 486 A.2d 526, 528 (1984). This protection applies unless “it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct.” 42 Pa.C.S. §8550. However, this exception is inapplicable where only negligence is alleged.

In order for the teacher or employee to qualify for this immunity, the acts of the employee must be within the “scope of his office or duties____” 42 Pa.C.S. §8545. To determine what is within the scope of an employee’s job duties, courts have looked to whether the employee was working as an employee at the time, what allegations are made in the complaint that the employee has stepped outside of the scope of employment, whether the type of activity engaged in was within their duties as an employee and whether the activity engaged in was within the normal activities engaged in by employees employed in the capacity that a defendant is employed in. See Brown v. Quaker Valley School District, supra at 499, 486 A.2d at 528 (normal activity); Goralski v. Pizzimenti, 115 Pa. Commw. 210, 219, 540 A.2d 595, 600 (1988) (duties of employee); Weissman v. City of Philadelphia, 99 Pa. Commw. 403, 407, 513 A.2d 571, 573 (1986) (employment at the time and allegations in the complaint).

In a case factually similar to the case at bar, the court found that a school employee who was disciplining a student in the course and scope of his employment was not liable for negligence in that disciplining due to the protections of immunity. Neil v. Nepa, 36 D.&C.3d 553 (Fayette Cty. 1985). Neil involved a student who received corporal punishment without his parents’ permission, which was in violation of school district policy. Neil, 36 D.&C.3d at 553. The court found that there is no exception under the Sovereign Immunity Statute that allows for liability for the disciplining of children. Id. at 554. The court further found that this immunity covered the teacher to the extent that the teacher acted within his official capacity. Id. at 555. In both cases, the courts allowed the plaintiffs to pursue their intentional tort claims while dismissing the negligence claims on the basis of sovereign immunity.

Applying the factors that courts have used to determine if an employee’s actions are within the scope of his or her employment to the current case, the court is satisfied that Greacen was acting within the course and scope of his employment at the time of this incident. First, he was an employee of Parkland High School at the time of the incident. Compl. ¶4; answer and new matter on behalf of def., Robert Greacen, to the compl. ¶4. Second, there are no allegations that defendant Greacen stepped outside of the scope of his employment at the time of the alleged incident. See compl. Finally, courts have found that disciplining students is within the ambit of activities employees of a school engage in within the scope of their employment. See Neil, supra.

Therefore, because Greacen was acting within the course and scope of his employment at the time of the alleged incident with Joshua Pursel, the PSTCA grants him immunity from the plaintiffs’ negligence claim. Accordingly, the defendant Robert Greacen’s motion is granted as to Count III, negligence, of the plaintiffs’ complaint and Count III, negligence, is hereby dismissed with prejudice.

2. Count IV: Gross Negligence and Outrageous Conduct

It appears to the court that Count IV of the plaintiffs’ complaint really is a punitive damages claim. The court must determine in the first instance whether the plaintiffs have presented sufficient evidence to support a punitive damages claim, which requires evidence on which the jury might reasonably conclude that outrageous conduct has been established by a preponderance of the evidence. Slappo v. J’s Development Associates Inc., 791 A.2d 409, 417 (Pa. Super. 2002). (citation omitted) “A showing of mere negligence, or even gross negligence, will not suffice to establish that punitive damages should be imposed.” Phillips v. Cricket Lighters, 584 Pa. 179, 883 A.2d 439, 445 (2005) (citing SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 494, 587 A.2d 702, 705 (1991)). Rather, “in Pennsylvania, a punitive damages claim must be supported by evidence sufficient to establish that (1) a defendant had a subjective appreciation of the risk of harm to which plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Hutchison v. Luddy, 582 Pa. 114, 124, 870 A.2d 766, 772 (2005).

In the present case, there is no evidence that Greacen had the intention to reinjure Joshua Pursel’s knee. Plaintiffs have admitted that they do not know whether Greacen was ever told about Joshua Pursel’s previous knee injury. (Dep. of David Pursel p. 42; dep. of Maria Pursel p. 40; dep. of Joshua Pursel p. 45.) Greacen denies ever being informed of this prior surgery and Miss Minotti, the school official who normally would let teachers know about these type of issues, cannot state that Greacen was told. (Dep. of Robert Greacen p. 48; dep. of Michelle Minotti p. 37.) Finally, testimony from Joshua Pursel’s classmates indicates that those who did not have any interaction with Joshua Pursel outside of homeroom did not know about Joshua Pursel’s previous surgeries. (Dep. of Amy Ritter p. 21; dep. of Michael Rohs p. 13; dep. of Jessica Reinsmith p. 16; dep. of Matthew Puchyr p. 14; dep. of Zachary Raub p. 36; dep. of Stephanie Reinghard p. 26.) Thus, Greacen, as his homeroom students, could not tell by merely seeing Joshua Pursel in homeroom that Joshua had these previous surgeries.

Additionally, the court finds that there is nothing in the facts of this case to show outrageous conduct on the part of Greacen. He responded to a student, Joshua Pursel, by directing him to throw away his drink and then emphasizing the written classroom rule. Plaintiffs appear to be alleging that Joshua Pursel reinjured his leg when Greacen pulled him up from his desk. The court finds that this does not rise to the level of “outrageous conduct,” as defined by Pennsylvania case law.

Plaintiffs have failed to present facts to establish that Greacen had a subjective appreciation of the risk to Joshua Pursel due to his previous injuries, and failed to present any evidence to support an argument that this was anything beyond mere negligence. Therefore, defendant Robert Greacen’s motion is granted as to Count IV, gross negligence and outrageous conduct, of the plaintiffs’ complaint. Count IV, gross negligence and outrageous conduct, of the plaintiffs’ complaint is dismissed with prejudice.

3. Count I: Assault

An assault occurs where: (1) a person, without privilege, intends to cause harmful or offensive bodily contact or to put another in reasonable and immediate apprehension of harmful or offensive contact; and (2) the action of the person causes such an apprehension. Cucinotti v. Ortmann, 399 Pa. 26, 27, 159 A.2d 216, 217 (1960). A bodily contact is offensive if it offends a reasonable sense of personal dignity. Restatement (Second) of Torts §19. Greacen argues that plaintiffs’ assault claim should be dismissed because there is no evidence that Joshua was in apprehension of harmful or offensive contact. The court is not convinced by this argument, however.

The court is satisfied that there is a genuine issue of material fact as to whether Greacen intended to cause harmful or offensive bodily contact or to put Joshua Pursel in reasonable and immediate apprehension of harmful or offensive contact, and whether Joshua Pursel consented to this bodily contact.

The court is also satisfied that there is a genuine issue of material fact as to whether Greacen’s conduct caused the requisite apprehension. While Greacen argues that “in []his testimony there is no indication that Joshua ever knew what was about to happen, or that he was ever in fear that Mr. Greacen was going to commit a battery,” (Def. ’s br. at 13), Joshua Pursel, on the other hand, said in his deposition that defendant Greacen’s conduct “startled” him. (Joshua Pursel dep. at 87, 92, 94, 96.)

Therefore, defendant Robert Greacen’s motion as to Count I, assault, of the plaintiffs’ complaint, is denied.

4. Count II: Battery

Pennsylvania courts define battery as “harmful or offensive contact with a person resulting from an act intended to cause the plaintiff or a third person to suffer such a contact or apprehension that such a contact is imminent.”Herr v. Booten, 398 Pa. Super. 166, 170, 580 A.2d 1115, 1117 (1990). Greacen asserts that “Plaintiffs have alleged that Greacen intended to harm Joshua,” but failed to present evidence demonstrating such intent. (Def.’s br. at 14.) The court is not convinced by this argument, however, as the question of the intent required for a battery claim is whether the actor intends to bring about the offensive contact, not whether he intends the specific injury. Restatement (Second) of Torts §§16,19.

The court is satisfied that there is evidence in the record to create a genuine issue of material fact regarding the plaintiffs’ contention that Greacen intended to cause an offensive contact with Joshua Pursel. Therefore, defendant Robert Greacen’s motion, as to Count II, battery, of the plaintiffs’ complaint is denied.

CONCLUSION

For the above reasons, the motion for summary judgment on behalf of defendant Robert Greacen filed on December 27,2005 is granted in part and denied in part, as set forth in the accompanying order.

ORDER

And now, February 15, 2006, upon consideration of the motion for summary judgment on behalf of defendant Robert Greacen filed on December 27, 2005, and the plaintiffs’ response thereto, and after argument thereon; it is hereby ordered that, for the reasons set forth in the accompanying opinion, said motion is granted in part and denied in part, as follows:

(1) Said motion is granted as to Count III, negligence and Count IV, gross negligence and outrageous conduct and, therefore, Counts III and IV of the third amended complaint filed at docket number 2003-C-3368 are hereby dismissed with prejudice; and,

(2) It appearing that a genuine issue of material fact exists, said motion is denied as to Count I, assault, and Count II, battery.