author: CEISLER, J.,

text:
    Wimms v. City of Philadelphia Civil Service Commission

      May 30, 2012—

      Anthony Wimms, pro se appellant

      Brian J. Pierce and Zakia E. Moore, for appellee
   CEISLER, J.,

I. FACTS AND PROCEDURAL HISTORY

The instant appeal has its origin in the firing of Anthony Wimms (hereinafter “appellant”) by his employer, the Philadelphia Prison System (hereinafter “PPS”). Appellant was hired by PPS in late 2007 and was employed as a correctional officer, first at an alternative and special detention facility, then at the Philadelphia Industrial Correctional Facility (hereinafter “PICC”). Certified Record, pt. 3 at l.

On January 12, 2011, appellant assisted in a “shakedown” of a cell in the G-l Unit at PICC./d.,pt. 1 at4. During the course of the shakedown, Sergeant Maria Diaz (who was helping to supervise the undertaking) noticed that appellant appeared to be wearing jeans underneath his officer’s uniform, and notified her superior, Lieutenant Edwin Cruz. Id., pt. 2 at 11-12. Separately, Sergeant Cruz Molina (who was also taking part in supervising the shakedown) noticed that appellant had not properly searched his assigned cell and was engaging in suspicious conversation with some of the prison inmates; Sergeant Molina also told Lieutenant Cruz of his concerns. Id. at 39, 42.

In response to these reports, Lieutenant Cruz ordered that each of the officers involved in the shakedown be subj ected to pat searches. Pertinent prison supervisors and a union representative, Officer LaKeisha Sherman, were notified of Lt. Cruz’s decision to take this action. Certified record, pt. 2 at 12, 56. Sergeant Diaz conducted the pat searches of each of the officers, with Officer Sherman serving as a witness to the proceedings. Id. at 12-14, 140. During the course of her pat search of appellant, Sergeant Diaz confirmed that appellant was wearing jeans underneath his uniform, whereupon she instructed appellant to empty his uniform pant pockets. Id. at 13, 141. Sergeant Diaz subsequently instructed appellant to produce the contents of his jeans pockets, which resulted in the discovery of a “whack,” or homemade knife, possession of which was unauthorized and in violation of rules and regulations. Id. at 14, 140.3 Sergeant Diaz alerted Lieutenant Cruz to appellant’s unauthorized weapon and attire. Lt. Cruz confiscated the knife and took photographs of appellant. Certified record, pt. 2 at 16, 62.

On March 29,2011, after a PPS board hearing regarding the matter, appellant’s employment was terminated for violating a number of PPS general orders and policies governing employee conduct. The effective date of firing was April 17, 2011. Id., pt. 3 at 1-3, 17-23. appellant appealed this determination, and an administrative appeal hearing before the City of Philadelphia’s Civil Service Commission (hereinafter “appellee”).

On Januaiy 17, 2012, appellee convened the appeal hearing. Appellant attempted to rebut the allegations against him, arguing that it was not improper to be wearing jeans underneath his uniform, as jeans could not be deemed contraband, and that the discovery of the unauthorized homemade knife was the result of an illegal strip search. Id., pt.2 at 8, 78-83, 169. Appellee found that he had violated PPS policy by wearing contraband (i.e. the jeans), not informing his supervisor about possession of the knife, and, more generally, “[not] maintaining the safety and good order of the institution by falsely lying and trying to conceal contraband while inside the institution to staff and supervisor.” Certified record, pt. 1 at 5-6. Accordingly, appellee unanimously upheld appellant’s dismissal in an opinion dated May 2, 2013.

On June 1, 2012, appellant appealed the determination by the Civil Service Commission to the court of common pleas. Appellant filed a brief to support said appeal on January 7, 2013, raising both the illegal search and contraband issues, and, for the first time, arguing that racial discrimination factored into his firing. Appellant’s brief, at 1. Additionally, appellant argued that appellee’s decision to uphold his termination was based, in part, upon hearsay evidence regarding how he relinquished the whack to his supervisors at PICC. Id.

On February 6, 2013, appellee filed a response brief, stating that appellant’s dismissal was proper, that the search was not illegal, and that appellant had waived any ability to raise the racial discrimination issue by failing to first do so at the January 17, 2012 hearing. Appellee’s brief, at 4-5.

On March 14, 2013, this court heard oral argument regarding appellant’s appeal. At the close of said hearing, this court denied appellant’s appeal by order docketed on March 15, 2013. On April 16, 2013, appellant appealed this court’s denial to the Superior Court of Pennsylvania.

II. STANDARD OF REVIEW

This court’s review of appellee’s decision is governed by the dictates of the Local Agency Law, which reads in pertinent part, “In the event a full and complete record of the proceedings before the local agency was made, the court shall hear the appeal without a jury on the record certified by the agency.” 2 Pa. C.S. §754(b). “A ‘full and complete record’ is defined as ‘a complete and accurate record of the testimony taken so that the appellant is given a base upon which he may appeal and, also, that the appellate court is given a sufficient record upon which to rule on the questions presented.’” In re Thompson, 896 A.2d 659, 668 (Pa. Commw. Ct. 2006) (quoting City of Philadelphia v. Bd. of License and Inspection Review, 590 A.2d 79, 86 (Pa. Commw. Ct. 1991)). Where such a record exists, “appellate review of an adjudication of a municipal civil service commission is limited to determining whether constitutional rights have been violated, an error of law has been committed or findings of fact necessary to support the adjudication are not supported by substantial evidence.” Lewis v. Civil Serv. Comm’n, 542 A.2d 519, 522 (Pa. 1988); see 2 Pa. C.S. §754(b) (articulating appellate review standard for local agency decisions where a complete record has been provided); see also Banks v. Civil Serv. Comm’n, 708 A.2d 890, 891 n. 1 (Pa. Commw. Ct. 1998) (citing Republic Steel Corp. v. Workmen’s Comp. Appeal Bd., 421 A.2d 1060 (Pa. 1980)) (“[I]n order to reverse the decision of an administrative agency, [an appellate court] must conclude that the findings of the agency are totally without support in the record.”); This Court determined that the certified record, as provided to it by Appellee, was full and complete, and thus that the appropriate standard of review for the matter before it was of the limited nature articulated in 2 Pa. C.S. §754(b). See Certified record, pts. 1-4.

III. DISCUSSION

Appellant raised the four following issues in his appeal of the determination of the Civil Service Commission to the common pleas court: 1. That appellee improperly admitted hearsay evidence at the hearing; 2. That racial discrimination factored into his firing; 3. That the wearing of jeans was not barred by PPS policy and that, as such, jeans could not be considered contraband; and 4. That the aforementioned search was illegal. Appellant’s brief, at 1.

This court respectfully requests that the instant appeal be denied for the following reasons:

1. The testimony given at the administrative appeal hearing was properly admitted and, additionally, was not hearsay;
2. Appellant waived his ability to argue that that racial discrimination played a role in his termination, as he failed to raise that issue at the administrative appeal level;
3.Sufficient evidence exists to support appellee’s determination that appellant was wearing contraband, in the form of jeans; and
4. The unauthorized weapon was discovered as the result of a constitutionally valid search.

1. No inadmissible hearsay evidence was offered against the appellant

Appellant asserts that he “was wrongfully discharged from my employment based on baseless speculation and hearsay and inaccurate information.” Appellant’s brief at 1. Appellant clarified this vague argument at the March 14,2013 appeal hearing, stating that “hearsay” referred to information about how he relinquished the unauthorized homemade knife. 3/14/13 N.T., 5:13-23. Presumably, appellant was talking about the testimony given by Officer Sherman and Sergeant Diaz at the January 17, 2012 administrative appeal hearing. See Certified record, pt. 2 at 13-14, 140-141.

Officer Sherman and Sergeant Diaz testified, under oath, at the administrative appeal hearing regarding how the unauthorized knife was recovered from the appellant. They were both subject to direct and cross examinations. Their testimony about how the knife was recovered was not, in fact, hearsay, and would be admissible in any court of this Commonwealth. See Pa. R.E. 801(c) (“‘Hearsay’ means a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”).

Even assuming, arguendo, that the testimony of Officer Sherman and Sergeant Diaz was hearsay, the rules governing local agency hearings specifically state that the “technical rules of evidence [do not apply], and all relevant evidence of reasonably probative value may be received.” 2 Pa. C.S. §554. Thus, statements, documentation, and other forms of information that would otherwise be deemed inadmissible hearsay at other court proceedings are deemed admissible at such hearings.

2. Appellant waived his right to argue that his termination was the result of racial discrimination

Appellant alleged that his termination was racially-motivated, in that he was subjected to discrimination by his Hispanic supervisors and coworkers on account of appellant being African-American. See Appellant’s brief at 1. This argument was not raised by Appellant before or during his administrative appeal hearing; instead, appellant waited until after he had appealed to the court of common pleas to make such a claim.

“Issue preservation is foundational to proper appellate review. Our rules of appellate procedure mandate that ‘[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.’ Pa. R.A.P. 302(a). By requiring that an issue be considered waived if raised for the first time on appeal, our courts ensure that the trial court that initially hears a dispute has had an opportunity to consider the issue.”

In the Interest of F.C. III, 2 A.3d 1201, 1211-12 (Pa. 2010) (citation omitted).

This reasoning also applies to administrative adjudicative proceedings. As articulated by the Pennsylvania Supreme Court:

“[An] administrative law tribunal must be given the opportunity to correct its errors as early as possible; diligent preparation and effective advocacy before the tribunal must be encouraged by requiring the parties to develop complete records and advance all legal theories; and the finality of the lower tribunals’ determinations must not be eroded by treating each determination as part of a sequence of piecemeal adjudications.”

Wing v. Com., Unemployment Comp. Bd. of Review, 436 A.2d 179, 181 (Pa. 1981).

At no point in time was appellee called upon to decide whether appellant’s firing was motivated, in whole or part, by racial discrimination. It is also telling that appellant fails to offer a scintilla of evidence regarding racial discrimination, but only makes a bald assertion that his Hispanic supervisors and coworkers were racists. Accordingly, this court properly determined that appellant waived his right to raise this issue at his appeal to the court of common pleas.

3. The jeans that appellant was wearing underneath his uniform were properly determined to be contraband

Appellant argues that PPS policy does not bar correctional officers from wearing jeans underneath their uniforms and, thus, that appellee erred in deciding that jeans constituted contraband. However, the record clearly indicates that the appellant violated uniform rules and regulations by concealing jeans under his mandated uniform. As noted above, absent a lack of substantial evidence that supports a given finding, a court is prohibited from invalidating a factual determination made at an administrative hearing. It is readily apparent that PPS regulations tightly circumscribe the uniform and grooming options for on-duty correctional officers and that jeans are not present on the list of approved articles of clothing. See Certified Record, pt. 4 at 31-32. Additionally, while PPS does not explicitly deem jeans to be “contraband,” PPS policy does generally define contraband as “any item or substance that is not allowed in the facility because it may be used to compromise the safety and security of the facility or its staff and inmates.” Id. at 3, 20. When these points are coupled with the testimony given by Sergeant Diaz and Lieutenant Cruz, both of whom stated that correctional officers were barred from wearing jeans and whom appellee found to be credible, it is apparent that substantial evidence exists to support appellee’s finding that appellant’s jeans were prohibited contraband; as such this court declined to invalidate appellee’s factual determination.

4. The search of appellant was constitutional

Appellant incorrectly asserts that the discovery of the unauthorized knife was the result of an illegal search, specifically, that the factual circumstances preceding the search did not provide grounds for reasonable suspicion that appellant might be carrying contraband. This is an issue of first impression, as Pennsylvania courts have yet to articulate the level of suspicion, necessitated by Pa. Const, art. I, §8, that justifies a pat search of a correctional officer, when said search occurs inside of a prison.

Protection from unlawful search and seizure is rooted in the Fourth Amendment of the United States Constitution, which declares: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV. In determining the scope of the Fourth Amendment, courts have availed themselves of Justice Harlan’s two-part test, which he articulated in his concurring opinion for Katz v. United States, 389 U.S. 347 (1967). First, it must be demonstrated that an individual had an “actual (subjective) expectation of privacy.” Id. at 361. Second, it must be shown that the expectation is deemed reasonable by society. Id.

Federal courts have repeatedly highlighted the unique and dangerous environment inherent to correctional facilities. The United States Supreme Court (hereinafter “Supreme Court”) has noted generally that “without attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room.” Lanza v. State of N.Y., 370 U.S. 139, 143 (1962). Elaborating on this point, the Supreme Court has stated that:

“Within this volatile ‘ community, ’ prison administrators are to take all necessary steps to ensure the safety of not only the prison staffs and administrative personnel, but also visitors. They are under an obligation to take reasonable measures to guarantee the safety of the inmates themselves. They must be ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today.”

Hudson v. Palmer, 468 U.S. 517, 526-527 (1984).

In light of this reality, federal courts have determined that correctional officers have limited privacy rights when operating within the confines of a prison. The Second Circuit has opined that “society[] is prepared to recognize as reasonable the proposition that correction officers have diminished expectations of privacy in light of the difficult burdens of maintaining safety, order and security that our society imposes on those who staff our prisons,” a proposition that has been echoed in rulings from numerous, other courts. Sec. and Law Enforcement Employees, Dist. Council 82 v. Carey, 737 F.2d 187, 202 (2d Cir. 1984); see Allegheny Cnty. Prison Employees Indep. Union v. Cnty. of Allegheny, 124 Fed.Appx. 140, 141 (3rd Cir. 2005); Leverette v. Bell, 247 F. 3d 160, 167-68 (4th Cir. 2001); McDonell v. Hunter, 809 F.2d 1302, 1306-7 (8th Cir. 1987); Pierce v. Ohio Dep’t of Rehab. & Corr, 284 F. Supp. 2d 811, 833 (N.D. Ohio 2003) (“any expectation of privacy [correctional officers] have is unquestionably diminished given the setting of their employment.”); see also Gettleman v. Werner, 377 F. Supp. 445, 447 (W.D. Pa. 1974) (“[constitutional Rights of an employee in a penitentiary may be diluted by the specialized requirements of discipline, safety and security.”).

Accordingly, there is general consensus that mere reasonable suspicion, and not probable cause, is necessary for a search of an on-duty correctional officer to pass constitutional muster. See Leverette, 247 F.3d at 167-68 (finding that reasonable suspicion standard applied to strip-search of prison employees); McDonell, 809 F.2d at 1306 (same); Carey, 737 F.2d at 204(same); Pierce, 284 F.Supp. 2d at 834 (same). Federal courts have also noted that the required level of suspicion is directly linked to the nature of the search. See Leverette, 247 F.3d at 168 (“We emphasize that reasonable suspicion is the minimum requirement, and point out that the more personal and invasive the search activities of the authorities become, the more particularized and individualized the articulated supporting information must be.”). Though the bulk of the relevant federal case law deals with strip searches, federal courts (in line with the Leverette sliding-scale concept) have recognized that less suspicion will be necessary to justify minimally invasive searches, such as pat-downs and pocket searches. See Morris v. Valeriano, 2007 WL 1851167 (D. Conn. 2007) (recognizing that a reasonable suspicion standard applies in the case of intrusive strip-searches and suggesting that the standard be applied even more leniently to less intrusive searches, such as pat-downs); see also Adrow v. Johnson, 623 F.Supp. 1085 (N.D. III. 1985) (applying reasonable suspicion to searches that fell slightly short of strip-searches).

Though reasonable suspicion is the standard on the federal level, it is important to recognize that “[ujnder certain circumstances, 4 our state constitution provides greater protection than the Fourth Amendment.’” Com. v. Moore, 928 A.2d 1092, 1099-100 (Pa. Super. Ct. 2007) (quoting Com. v. Hook, 700 A.2d 1263, 1266 (Pa. Super. 1997) (en banc), aff’d, 734 A.2d 1275(Pa. 1999)); Jones v. City of Philadelphia, 890 A.2d 1188, 1196 (Pa. Commw. Ct. 2006) (citing Com. v. Smith, 836 A.2d 5, 15 (Pa. 2003)). In determining whether a portion of the Pennsylvania Constitution provides protections above and beyond that afforded by the United States Constitution, a court must look at the “(1) text of the Pennsylvania constitutional provision; (2) history of the provision, including Pennsylvania case-law; (3) related case-law from other states; [and] (4) policy considerations, including unique issues of state and local concern, and applicability within modem Pennsylvania jurisprudence.” Com. v. Edmunds, 586A.2d 887, 895 (Pa. 1991). However, it is imperative that a court “construe the Pennsylvania constitution as providing greater rights to its citizens than the federal constitution ‘only where there is a compelling reason to do so.’” Jones, 890 A.2d at 1199 (quoting Com. v. Gray, 503 A.2d 921, 926 (Pa. 1985)); Com. v. Crouse, 729 A.2d 588, 596 (Pa. Super. Ct. 1999). Additionally, in the context of search and seizure, the scope of an individual’s Pa. Const. Art. I, §8 rights still must be ascertained via use of the aforementioned two-part test from Katz, 389 U.S. at 361. Com. v. Duncan, 817 A.2d 455, 463 (Pa. 2003); see also Twp. of Lower Milford v. Britt, 695 A.2d 958, 960 (Pa. Commw. Ct. 1997) (“A search under the Fourth Amendment occurs where there is a government intrusion upon an individual’s legitimate expectation of privacy, an expectation which must be actual and one that society recognizes as being reasonable.”); Com. v. Rood, 686 A.2d442, 446 (Pa. Commw. Ct. 1996); Com. v. Viall, 890 A.2d 419, 422 (Pa. Super. Ct. 2005) (citing Com. v. Peterson, 636 A.2d 615, 619 (Pa. 1993)) (“In determining whether a person’s expectation of privacy is legitimate or reasonable, the totality of the circumstances must be considered and the determination will ultimately rest upon a balancing of the societal interests involved.”).

As noted above, one of the primary concerns regarding a correctional facility is the maintenance of security within its walls. Hudson, 468 U.S. at 526-527; see also Small v. Horn, 722 A.2d 664, 670 (Pa. 1998) (correctional facility administrators “must enforce reasonable rules of internal prison management to ensure public safety and prison security.”); Moore, 928 A.2d at 1102 (quoting Payne v. Commonwealth Dept. of Corr, 871 A.2d 795, 809 (Pa. 2005)) (“[B]ecause of the unique nature and requirements of the prison setting, imprisonment ‘carries with it the circumscription or loss of many significant rights ... to accommodate a myriad of institutional needs ... chief among which is internal security.’”). This is reflected in a number of statutoiy provisions regarding correctional officers, which detail the types of training that must be given, the promulgation of duty and behavioral standards, and the broad powers afforded to those charged with guarding prisoners. See 61 Pa. C.S. §1734; 37 Pa. Code §§95.221, 95.224; cf. Certified Record, pt. 4 (PPS personnel and security-related policies). By virtue of the weighty responsibilities inherent to the position, and the environment in which they operate, correctional officers must be held to a stringent standard, one which ensures high levels of professionalism and integrity. Such a standard necessitates the thorough investigation of legitimate suspicions and concerns about individual officers, so that any impropriety does not affect overall institutional control and safety. To that end, a correctional officer has, in an objective sense, a diminished privacy interest when operating inside of a prison or other, similar facility. Cf Katz, 389 U.S. at 361 (an expectation of privacy must be deemed reasonable by society for Fourth Amendment-based protections to attach); Duncan, 817 A.2d at 463 (Katz test is used to determine scope of Pa. Const. Art. I, §8 rights). This determination is consistent with the handful of relevant cases from other states. See Boyd v. Civil Serv. Comm ’n, 559 N.W.2d 342, 347 (Mich. App. 1996) (strip search of prison guard justified when based upon reasonable suspicion); Clark v. State, 395 So.2d 525 (Fla. 1981) (“[a] prison guard’s expectation of privacy is extremely limited by the environment that he or she chooses to work in.”); State v. Paruszewski, 466 P.2d 787, 789 (Ariz. App. 1970) (non-consensual searches of prison employees are reasonable and constitutional, due to prison-related security concerns). Accordingly, this court concluded that correctional officers are not provided greater search-related protection by Pa. Const. Art. I, §8 than those afforded to them by the Fourth Amendment. Thus, reasonable suspicion is all that is required for a search of such individuals to comport with the dictates of both the United States Constitution and the Pennsylvania Constitution.

In the instant matter, appellant’s actions during the shakedown created reasonable suspicion sufficient enough to render the resulting pat search permissible under both the United States Constitution and the Pennsylvania Constitution. It is well-settled that reasonable suspicion must be based upon “specific and articulable facts and reasonable inferences drawn from those facts,” rather than mere conjecture or baseless speculation. Com. v. Jackson, 698 A.2d 571, 573 (Pa. 1997) (citing Terry v. Ohio, 392 U.S. 1, 27 (1968)). While “certain facts, taken alone, do not establish reasonable suspicion ... a combination of these facts may [do so].” Com. v. Cook, 735 A.2d 673, 677 (Pa. 1999) (citations omitted). Here, the record reveals that three distinct facts existed that created reasonable suspicion that something was amiss. First, appellant’s coworkers noticed that he appeared to be wearing jeans under his uniform, in violation of PPS anti-contraband policies. This alone vitiated any reasonable expectation of privacy he may have had to the contents of his pockets. Second, appellant failed to properly shakedown his assigned cell. Finally, appellant was seen conversing with several inmates during the course of this shakedown. Appellant’s coworkers and supervisors were concerned by his behavior, and followed up on their concerns by having Sergeant Diaz conduct a minimally-invasive pat search.

This response was certainly justified by the circumstances, given that each of appellant’s aforementioned actions called into question his integrity and threatened to negatively affect both public safety and institutional control at PICC. Consequently, the pat search comported with the requirements of both the United States Constitution and the Pennsylvania Constitution. As such, this court determined that the whack was not discovered as the fruit of an illegal search.

III. CONCLUSION

For the aforementioned reasons, this court respectfully requests that the instant appeal be denied.

      . As put before this court, the certified record is split into four separate PDF files. All citations to said record within this opinion point to a specific part of the record (e.g. the second PDF of the certified record is referred to as “pt.2”), followed by a page number (which refers to the location of the page within a given PDF, independent of any preexisting numbering on the page itself).

      . Le. a search for contraband hidden by an inmate within the confines of his or her cell.

      . There is a minor discrepancy between the recollections of Sergeant Diaz and that of Officer Sherman, in that the former says she gave appellant a pat search and had to specifically tell him to empty his jeans pockets (where the whack was hidden), while the latter says that Diaz merely told appellant to empty his pockets, without conducting a physical search, and that the whack came out of appellant’s uniform pockets; however, the facts contained in this section of the opinion are that which were agreed upon by the Civil Service Commission. See Certified Record, pt. 1.

      . See Id. at 16 (“Haviland: Are you aware of other officers that wear jeans underneath their clothing while working at PPS? Diaz: No. Haviland: Is there a reason why other officers wouldn’t be wearing jeans underneath their uniforms while working at PPS? Diaz: No, because it’s like contraband. Because you’re wearing civilian clothes underneath and you’re taking into the facility, we don’t know what your intentions are. Haviland: What would be the fear? Diaz: An inmate can escape. Haviland: And how would they use a pair of jeans to do that? Diaz: The officer could come inside, remove it, lay it down, an inmate come, pick it up, and walk right out the front door.”).

      . See Id. at 57 (“Haviland: Is a weapon considered contraband? Cruz: Yes, it is. Haviland: What about blue jeans worn under a uniform? Cruz: That’s considered contraband. Haviland: And why are blue jeans underneath a uniform considered contraband? Cruz: Security breech [sic] of the institution. Haviland: And why - what is it about blue jeans that is a breach? Cruz: Those jeans can be taken off and be given to an inmate, and the inmate can put them on, get a sweatshirt or something like that, and walk right out of the institution.”).

      . The text of this constitutional provision is as follows: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.”

      . Appellant alleges that he was subjected to a strip search, not a pat search; however, appellee determined that only a pat search occurred, and there is substantial evidence to support this finding. See Certified record, pt. 1 at 4-5; Id., pt. 2 at 12-14, 83, 109, 140-41; see also Com. v. Martinez, 2013 Pa. Super. 102 (Pa. Super. Ct. May 2, 2013) (quoting Allison v. GEO Group, Inc., 611 F. Supp. 2d 433, 453 n.12 (E.D. Pa. 2009)) (discussing what constitutes a “strip search”).


source: Caselaw Access Project

author: TUCKER, /.,

license: Public Domain

text:
    Lawton v. Komar

      June 6, 2013—

      Robert G. Leino, for appellant

      Glenn M. Ross, for appellee
   TUCKER, /.,

I. Procedural History

This matter comes before the court on the denial of an “emergency” motion for equitable relief. On January 9, 2013, Christopher Lawton (hereinafter referred to as “appellant”) filed an emergency motion for equitable relief. Miscellaneous mot. (01/09/2013). NPG Venture Six Limited Partnership, NPG Land Management, LLC, National Properties Group, Inc. and Yevgeny Komar (hereinafter referred to collectively as “appellees”) filed an answer to appellant’s emergency motion on January 31, 2013. Ans. filed (01/31/2013). The court denied appellant’s emergency motion for equitable relief on April 10, 2013, order entered by J. Tucker (04/10/2013). Appellant filed an appeal of the court’s denial of his petition for equitable relief the next day on April 11,2013. Appeal to Superior Court (04/11/2013). The docket reflects that appellant sought to appeal other orders of this court and other courts of coordinate jurisdiction in the same April 11, 2013 appeal. Id. On April 16, 2013, the court ordered appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). order entered by J. Tucker (04/10/2013). Appellant filed his 1925(b) statement; however, due to the lengthiness of the statement, the court will not reproduce the statement as per its usual custom. 1925(b) statement (05/06/2013).

II. Facts

On September 12, 2012, appellant filed a complaint against appellees and James Patton alleging fraud, misrepresentation, conversion, breach of fiduciary duty, breach of contract, unjust enrichment, negligence and gross negligence, rescission of contract, unconscionability, a request to pierce the corporate veil, partition, and various equitable remedies related to a partnership formed for the purpose of developing real estate in the city of Philadelphia. Compl. filed (09/12/2012).

The underlying issues in this matter are as follows: appellees are individuals and/or corporations residing/ incorporated in New York, Pennsylvania and Florida. Compl. filed (09/12/2012). Appellant is an individual residing in Connecticut. Id. In May 2006, appellant entered into a partnership agreement for the purpose of investing in real estate with appellee National Properties Group, Inc. (hereinafter referred to separately as “Appellee NPG” or “NPG”). Id. The resultant partnership is known as NPG Venture Six Limited Partnership (hereinafter referred to separately as “Appellee NPG V6” or “NPG V6”). Appellee Yevgeny Komar (hereinafter referred to separately as “Appellee Komar”) is the president of both Appellee NPG and NPG Land Management LLC (hereinafter referred to separately as “Appellee Land Management” or “Land Management”). Id. Appellant is a limited partner in the NPG V6 partnership. Id. NPG is a limited partner in the NPG V6 partnership. Id. Appellant Patton served in a sales capacity for the partnership. Id.

Appellant claims that, due to appellees’ mismanagement and fraudulent behavior, he has lost his investment in the NPG V6 partnership. Compl. filed (09/12/2012). Therefore, appellant seeks special, general and punitive damages, as well as attorney’s fees, cost and interest. Id. Appellant also seeks various forms of equitable relief. Id. On January 9, 2013, appellant filed the instant miscellaneous motion for emergency equitable relief. Miscellaneous Motion (09/01/2013). On January 28, 2013, appellees filed preliminary objections to appellant’s complaint. Prelim, obj. (01/28/2013).

On March 12, 2013, another court entered an order sustaining appellees’ preliminary objections without prejudice “to be pursued in arbitration before the American Arbitration Association pursuant to the contract between the parties.” order entered by J. Ceisler (03/12/2013). On April 10,2013, this court denied appellant’s miscellaneous motion for equitable relief, wherein appellant requested that the court “intervene and balance the equities, by restoring the status quo and returning plaintiff to his pre-investment position by: rescinding the partnership agreement; declaring title to the remaining property in plaintiff’s name; and by awarding attorneys fees,” among other relief. Miscellaneous motion (09/01/2013).

On April 11, 2013, appellant filed an appeal of two orders entered by other courts in this matter docketed February 2,2012 and March 12,2013 respectively. Appeal to Superior Court (04/11/2013). Although this court will not address the merits of orders entered by courts of coordinate jurisdiction, this court will note that appeals of these orders are untimely pursuant to the Pennsylvania Rules of Appellate Procedure. Nevertheless, appellant filed a timely appeal of this court’s April 10, 2013 denial of his miscellaneous motion for emergency equitable Relief. Id. A discussion ensues:

III. Legal Analysis of Appellant’s Claims

1. Appellant failed to comply with Pa.R.A.P. 1925(b); therefore all claims on appeal are waived.

It is well settled that when the trial court orders an appellant to submit a 1925(b) statement, it is a crucial component of the appellate process. Commonwealth v. Lord, 553 Pa. 415, 417 (1998). Pa.R.A.P. 1925(b) requires that the statement of issues complained of shall be concise and set forth only those rulings or errors that appellant intends to challenge. Pa.R.A.P. 1925(b)(4)(i). Issues not raised in accordance with the provisions of Pa.R.A.P. 1925(b) are waived. Pa.R.A.P. 1925(b)(4)(vii). The issues raised in the 1925(b) statement must be “non-redundant” and “non-frivolous.” Pa.R.A.P. 1925(b)(4) (iv). Here, appellants submitted a nine (9) page 1925(b) Statement essentially restating the claims brought in his original complaint and emergency motion for equitable relief. 1925(b) statement (05/06/2013). Of the issues that even remotely relate to dispositions made by this court, appellant claims that appellee Lawton is a convicted felon and that the arbitration process is not adequate relief because it’s “shrouded in fraud.” Id. Appellants’ claims are redundant and frivolous. The balance of appellant’s 1925(b) statement focuses on rulings of the previous courts, which, as discussed below, are either waived or are non-appealable interlocutory orders. Therefore, appellant’s claims on appeal are waived.

2. Appellant did not timely file his appeals pursuant to the Pennsylvania Rules of Appellate Procedure.

It is well settled that an “appeal shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903.” Pa.R.A.P. 902. An appeal must be filed within thirty (30) days after the entry of the order from which the appeal is taken. Pa.R.A.P. 903.

Here, the docket reflects that appellant seeks appellate review of orders entered in this matter on February 8,2013 and March 8,2013. Appeal to Superior Court (04/11/2013). Notwithstanding that these orders were entered by other courts, they are untimely filed. Pa.R.A.P. 903. Therefore, appellant’s issues on appeal are waived.

3. The court did not err in denying appellants’ emergency motions for Equitable Relief

The court did not err in denying appellant’s motion for emergency equitable relief. Pursuant to Pa.R. CP. 1531, a party may seek injunctive relief in the form of a preliminary or special injunction. Pa.R.C.P. 1531. The purpose of this form of equitable relief is “to preserve the status quo as it exists or previously existed before the acts complained of, thereby preventing irreparable injury or gross injustice. A preliminary injunction should issue only where there is urgent necessity to avoid injury which cannot be compensated for by damages.” Maritrans GP, Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d 1277, 1286 (Pa. 1992) (internal citations omitted). Injunctive relief will lie where there is no adequate remedy at law. Id.

Here, appellant filed an emergency motion for equitable relief, wherein seeking the following relief:

1. Rescission of the underlying partnership agreement forNPG V6;
2. Declaration of title to the remaining partnership property, located at 6740 Ogontz Avenue, Philadelphia, PA and 1641 W. Huntington Street, Philadelphia, PA in appellant’s name;
3. Award of attorney’s fees in the amount of $ 10,000.00;
4. Piercing of the corporate veil
5. Entry of judgment in favor of appellant and against appellees, jointly and severally.

Miscellaneous motion (01/09/2013). The balance of appellants’ emergency motions for equitable relief detailed the contentious arbitration of the underlying issues in the matter. For example, appellants’ claim that: 1) the partnership properties are in a state of mismanagement, to the point where some of the tenants have stolen property; 2) the partnership properties are exposed to tax foreclosure actions due to delinquent property taxes; 3) insurance and utility bills on the partnership properties are not being paid; 4) appellee Komar is in federal prison; 5) appellees have refused to pay damages from another arbitration claim; 6) appellees have refused to pay arbitration fees; 7) appellees have refused to give a full accounting of all investment funds of the various partnerships; 8) appellees are engaging in tactics for the sake of delay and expense; among other issues. Id.

Appellant’s emergency motion for equitable relief does not preserve the status quo as it currently exists or previously existed. First, the record is clear that appellant seeks the same result upon preliminary injunction that he specifically claimed as relief in his complaint. Essentially, appellant wants this court this award him the very relief which is either the ultimate outcome of the court ordered arbitration, or the ultimate outcome of the litigation of his claims. Appellant’s requested relief would be an improper use of a preliminary injunction pursuant to Pa.R.C.P. 1531. For this reason, the court did not err in denying appellant’s emergency motion for equitable relief related to the NPG V6 partnership.

Second, appellant effectively asks this court to overrule the decision of a court of coordinate jurisdiction in regards to the requested relief. Pursuant to the “law of the case” doctrine, this court cannot overrule the decision of a court of coordinate jurisdiction. Commonwealth v. Starr, 664 A.2d 1326, 1332-1334 (Pa. 1995). Specifically, one aspect of the “law of the case doctrine” embodies the principal that:

(3) upon transfer of a matter between trial judges of coordinate jurisdiction, the transferee trial court may not alter the resolution of a legal question previously decided by the transferor trial court.

Id. at 1332-1334. Here, another trial court entered an order sustaining appellees’ preliminary objections and dismissing appellant’s complaint without prejudice “to be pursued in arbitration before the American Arbitration Association” pursuant to the partnership agreement between appellant and appellees as provided by Pa.R.C.P. 1028(a)(6). Order entered by J. Ceisler under Pa.R.C.P. 1028(a) (6), a petitioner may file preliminary objections to any pleading wherein alleging “pendency of a prior action or agreement for alternative dispute resolution.” Pa.R.C.P. 1028(a)(6). On April 11, 2013 the court entered an order denying appellant’s request to rescind the underlying partnership agreement for NPG V6; declare title to the remaining partnership property in appellant’s name; award of attorney’s fees in the amount of $10,000,00; pierce the corporate veil; and enter judgment in favor of appellant and against appellees, jointly and severally. If the court granted appellant’s requested relief, appellant would have gained the veiy relief the other trial court deemed should be resolved in arbitration based on the underlying partnership agreements. The court cannot now effectively overrule the resolution of an underlying legal question resolved by another trial court.

IV. Conclusion

Appellants have not complied with Pa.R.A.P. 1925(b), therefore all claims on appeal are waived. In addition, to the extent that appellant seeks to appeal orders issued by other courts beside the instant court, this court will not opine on the merits of those rulings. However, the court notes that two (2) of the three (3) orders appealed from are untimely filed pursuant to Pa.R.A. P. 903.

In regard to the one (1) timely filed appeal, the court did not err in denying appellant’s emergency motion for equitable relief because the relief requested by preliminary injunction is the very relief as claimed in the original complaint. Appellant seeks to bypass the litigation process, which is an improper use of preliminary objections under Pa.R.C.P. 1531. Lastly, the court did not err in denying appellant’s emergency motion for equitable relief because the relief requested would effectively overrule the ruling on the same legal question handed down by a trial court of coordinate jurisdiction. The court’s ruling should stand.


author: MAZER MOSS, J.,

text:
    Hunter v. General Motors Corporation

      June 13, 2013-

      Richard J. Heleniak, for appellants

      Mary Grace Maley and Mary E. Bolkcom, for appellees
   MAZER MOSS, J.,

PROCEDURAL HISTORY

Plaintiffs, John and Barbara Hunter, h/w, appeal this court’s orders dated March 3, 2009, March 5, 2009, April 7,2009 and October 6,2009. Plaintiff previously appealed this court’s findings and order entered on October 6,2009. denying plaintiff’s motion to reconsider the March 3,2009 order precluding the opinion testimony of R. Scott King and granting summary judgment in favor of defendant, Holman Enterprises d/b/a Saturn at English Creek (incorrectly sued as Holman Enterprises d/b/a Saturn at English Creek and Holman Saturn at English Creek.) Thereafter, the appeal at 3312 EDA 2009 was quashed by order of the Superior Court dated December 23, 2009 as this court’s October 6th order was interlocutory.

Following a stipulation approved by the Honorable Sandra Mazer Moss on January 29, 2013 (docketed on February 1,2013), which severed the claims of defendant, Holman Enterprises d/b/a Saturn at English Creek from the claims of General Motors Corporation and Saturn Corporation, plaintiff again appealed the October 6, 2009 order as well as this court’s orders of March 3, 2009, March 5, 2009 and April 7, 2009.

This court’s findings and order of October 6, 2009, denying plaintiff’s motion to reconsider the March 3,2009 order precluding the opinion testimony of R. Scott King and granting, summary judgment in favor of defendant, Holman Enterprises d/b/a Saturn at English Creek will be reproduced in part herein. The court will then discuss the March 5, 2009 and April 7, 2009 orders from which plaintiff also appeals.

FACTUAL BACKGROUND

This is a products liability action in which plaintiffs allege that their 2003 Saturn VUE was defective in that the rear suspension system caused the vehicle to lose control while plaintiff’s were driving in South Carolina returning to their home in New Jersey.

LEGAL ANALYSIS

This court’s findings in support of its orders of March 3, 2009 and October 6, 2009 follow:

Defendants maintain that because of the complexities of the issues that could be presented, a competent expert report is required so that a jury could understand what plaintiff’s claim to be a defect in the automobile that Mr. Hunter was driving when it ran off the road and how the alleged defect was a causal factor in this accident. There is no question that a competent expert report is required here and failing to have same requires the defendant’s summaiy judgment motion be granted, and so it is ordered.

Because of this, the focus now shifts to this court’s underlying order which precluded plaintiff’s expert from offering his report based upon a finding that it was legally incompetent.

This court will discuss below some but not all of the factors which clearly demonstrated the legal incompetence of the report.

The expert report was a “summary report based upon our review of the materials received.” The materials “reviewed” included “a police report, data related to a manufacturer’s safety recall/customer satisfaction program, and photographs of the incident vehicle.” Expert report of September 16, 2008.

A review of the police report referred to by the expert reveals the following data extracted from this report.

The time was around midnight on or about December 21, 2004 near Waterboro, South Carolina. Plaintiff was driving northbound on Interstate 95. The description of what happened as entered by Cpl Rouse, Badge #831, is as follows.

Unit #1, (Plaintiff’s vehicle), (not in original), was travelling North on 1-95. The driver of Unit #1 ran off the left side of the roadway and overturned several times.

South Carolina Traffic Collision Report Form TR310, 12/21/04.

The following data was also extracted from the same report.

Action prior to Impact: Movements Essentially Straight Ahead
Weather Conditions: Clear
Light Conditions: Dark (No Lights)
Contributing Factors: Driver: Fatigue/Asleep

Although the expert cited this document as one on which he based his opinion nowhere in his report are the above facts cited, explained or addressed in any way.

Plaintiff’s expert report of September 16, 2008, goes on to cite what is referred to as the recall information, which is ostensibly how he arrives at his conclusion of product defect:

The vehicle is prone to rollover during a certain vehicle maneuver that includes a certain series of opposite-direction turns. The recall information indicates that the rollover is preceded by a buckling and failure or a rear suspension control arm that can result in the affected wheel assembly collapsing beneath the vehicle.

Expert Report of September 16, 2008.

A review of the documents he claims supports the conclusion that a manufacturer’s recall was operative at the time of the accident for this “rollover prone vehicle” fails to support plaintiff’s expert’s conclusions and is contradicted by the documents relied upon. The letter to Saturn VUE owners of August 2004, stated that:

.. .there have been some recent media reports of rollover tests conducted on the VUE by the National Highway Traffic Safety Administration (NHTSA), the results of which have led the agency to start an investigation. These tests, which were recently adopted, induce a sharp left turn at set speeds between 35 and 50 mph, followed by over correction to the right. Though the VUE did not roll over during the tests, the rear suspension was damaged by wheel contact with the pavements, thus preventing the vehicle from completing the test. It is important to note that the suspension damage was a result of the severity of the test; at no time did the suspension damage cause loss of control of the vehicle.
Of course, your Saturn VUE meets and/or exceeds all Federal Vehicle Safety Standards. In addition, the 2004 Saturn VUE earned a five-star rating in the frontal and side crash test categories established by NHTSA. However, to maintain confidence and peace of mind with your VUE, Saturn has decided to issue a customer satisfaction recall.
To complete this customer satisfaction recall, Saturn will replace certain rear suspension components and increase the recommended cold inflation tire pressure to reduce the risk of suspension damage. At no charge to you, we will launch this customer satisfaction recall as soon as possible. We will contact you again once the necessary replacement parts are available

The notice advises of a “customer satisfaction recall” and that, “the VUE did not roll over during the tests.”

The December 2004 notice advised in a similar fashion:

In August 2004, Saturn letters to current owners of 2002, 2003 and 2004 model year Saturn VUE vehicles to announce a voluntary customer satisfaction program, 04067. In our correspondence we explained that our parts inventory was not sufficient to perform all replacements at that time. We stated we would contact you again once replacement parts became available.
The rear suspension lateral link assemblies of certain model year 2002-2004 Saturn VUE vehicles may deform if subjected to a handling maneuver similar to that performed in the National Highway Traffic Safety Administration’s (NHTSA’s) newly implemented Dynamic Maneuvering Test (“Fishhook” Test). Deformation of the lateral link could result in the tire and wheel tipping inward until the tire contracts the trailing arm. If the tire were to contract the trialing arm, tire rotation would be inhibited.

The document that plaintiff’s expert appears to be relying upon is identified as a Field Performance Evaluation Report: Subject: Rear Suspension Toe Link Fishhook Test Deformation 2002-04 Saturn VUE.

This report identified the testing procedure performed on the test vehicles.

Investigation/analysis Results:

NHTSA identified the condition in June 2004 on two 2004 Saturn vehicles (one front wheel drive and one all wheel drive) while conducting the Dynamic Maneuvering Test at 45 mph.
NHTSA instituted the Dynamic Maneuvering Test in the 2004 model year to assess the dynamic performance of vehicles with respect to stability and rollover propensity. The test supplements the existing static stability factor and generates a star rating for the vehicle. The NHTSA static stability factor is an engineering calculation based on the track width (the distance between two wheels on the same axle) and the height of the center of gravity above the road. The dynamic Maneuvering Test consists of a sharp left turn (-270 degrees) at a series of speeds between 35 and 50 mph, followed by an over correction of 540 degrees to the right. NHTSA testing of the two VUE vehicles resulted in deformation of the toe link due to high loading induced by tire debeading and subsequent rim to ground contact. Both vehicles behaved in the same manner.
GM investigation identified that rear toe link loads generated by the Dynamic Maneuvering Test exceeded validation loads. As measured at the GM Milford Proving Grounds, rear toe link loads typically peak at 6 kN, but loads in the Dynamic Maneuvering Test peak at approximately 25 kN due to lateral forces.

This same report also identified four field cases which involved single vehicle rollovers.

NHTSA has identified four field cases where VUE vehicles were involved in single vehicle rollovers and the rear suspension was deformed. However, the deformation of the toe links in these vehicles was not the same as in the NHTSA-tested vehicles. The NHTSA-tested vehicles collapsed at the knuckle, while the field cases bent at the center, indicating different loading characteristics.

The expert report failed to identify the deformity in the subject vehicle and failed to identify which information or data was relied upon in arriving at his conclusion. Further, the expert failed to identify how the movement of the plaintiff’s vehicle correlated in any way with the movement of the test vehicle (which was the cause of the deformation of the test vehicle). For example, the “fishhook” maneuver consisted of a 270° turn to the right causing the lateral link assembly of the rear wheel to deform, causing the wheel to tip in and contact the trailing arm and stop it (the wheel) from rotating.

The plaintiff subsequently described the movement of the car differently from the police report in a communication with his insurance carrier.

John Hunter driving, traveling North on 1-95-54 miles into South Carolina car went off Highway towards road divider. Adjusted car from 25° angle back towards highway, car rear began to swing to left. Car now on 45° angle back to Highway-adjusted left to get rear wheels behind *car violently whipped rear to Highway where we began to tumble on grass (3-4) times). Last tumble landed upright.

In the section under, “Who was at fault?-Why?” plaintiff answered as follows:

Don’t know-possible black ice, possible Saturn Rear-Wheel Collapsing.
Saturn recall of rear wheels collapsing finally received in December-since August, just before we left for trip, Saturn wheels collapsed during testing.

Driver’s statement of auto accident, 1/10/05.

Nowhere in the plaintiff’s expert report is there an attempt to synthesize the above apparently contradictor information and explain which information he relied upon and why. Nowhere in the plaintiff’s expert report is there any guidance as to what facts were relied upon and why.

Plaintiff driver says without further explanation, the car, “went off the highway towards road divider.” This precipitates any turning movement which is the apparent maneuver which is the first link in the dynamic chain allegedly leading to a causal deformity. The expert report stands mute in reconciling this critical issue with what he claims to be the causal defect.

In paragraph 4 of the plaintiff’s expert report he says:

The post-incident photographs of the incident vehicle generally depict damages consistent with the incident described in the police report. Those photographs also show damage to the left rear suspension system, including buckling and failure of the left rear control arm. In particular, the photographs depict rear suspension system failure consistent with the kind of failure described in the recall data that can precede a vehicle rollover. Thus, the photographs are consistent with indicating that the incident vehicle overturned because the suspension system failed in the manner described in the recall data.

There are over 200 photographs depicting the post accident damage which necessarily includes the significant damage incurred from the three complete rollovers as described by the plaintiff driver.

The expert did not perform a physical inspection of the subj ect vehicle and in his report and subsequent conclusion relies exclusively on these photographs but nowhere in his report identifies which of the hundreds of photographs he relied upon for his conclusion. Nowhere in his report does he identify that damage to the wheels and under-carriage which was caused by the forces generated by the impact of three consecutive and forceful contracts with the ground during the three complete revolutions experienced within the rollover cycle. Nowhere in his report does he specifically identify the claimed causal defect either descriptively or point to it within the hundreds of photographs available for review. The most specific defect that his report can muster is to say that the rear suspension failure is consistent with the kind of failure described in the recall data. (Emphasis supplied)

The expert again refers back to the police report referred to above.

A review of this same police report shows that the factors identified in the report as causing the accident are:

The driver of Unit #1 ran off the left side of the roadway and overturned several times ....Contributing Factors: Dri ver-F atigue/ asleep.

Lastly, the proffered expert report acknowledged that the author was incapable of rendering causation because he had not inspected such vehicle and therefore was incapable of rendering a causation opinion based upon the alleged defect.

“Such an inspection will be required by this office in order to determine if the vehicle overturned because of the recall failure. (Expert report 9/16/08).

It is well settled that expert testimony is incompetent if it lacks an adequate basis in fact. The expert is allowed only to assume the truth of testimony already in evidence. Hussey v. May Dep’t Stores, Inc., 238 Pa. Super. 431, 357 A.2d 635, 637 (Pa. Super. 1976).

An expert cannot base his opinion upon facts which are not warranted by the record. No matter how skilled or experienced the witness may be, he will not be permitted to guess or to state a judgment based on mere conjecture. Collins v. Hand, 431 Pa. 378; 246 A. 2d 398, 404 (1963). In Collins, Our Supreme Court adopted the standard for measuring the competency of an expert’s opinion set forth in Dreher v. Order of United Commercial Travelers of America, 173 Wis. 173, 180 N.W. 815, 817 (1921), which stressed that expert opinions must be based on sound facts:

It is the function of opinion evidence to assist the jury in arriving at a correct conclusion upon a given state of facts. To endow opinion evidence with probative value it must be based on facts proven or assumed, sufficient to enable the expert to form an intelligent opinion. The opinion must be an intelligent and reasonable conclusion, based on a given state of facts, and be such as reason and experience have shown to be a probable resulting consequence of the facts proved. The basis of the conclusion cannot be deduced or inferred from the conclusion itself. In other words, the opinion of the expert does not constitute proof of the existence of the facts necessary to support the opinion. (Emphasis in original). Id.

An expert also cannot base an opinion on facts which are not warranted by the record. Kelly v. St. Mary Hosp., 2001 PA Super 175, 778 A.2d 1224, 1227 (2001) (citing Collins, 246 A.2d at 404).

In the more recent decision of Downey v. Crozer-Chester, 817 A.2d 517, 528, 2003 Pa Super 51 (2003), our Superior Court stated that “[a]n expert’s opinion must be supported by references to facts, testimony or empirical data and must delineate how the opinion, based on the record, gives rise to a genuine issue of material fact” in order to overcome a summary judgment motion. (See also Kenner v. Kappa Alpha Psi Fraternity, Inc., 2002 PA Super 197, 808 A.2d 178 (Pa. Super. 2002) (affirming entry of summary judgment where an expert’s opinion contained within a report, failed to point to specific facts, testimony or empirical data for support) (citing Checchio v. Frankford Hospital, 717 A.2d 1058, 1062 (1998)) (affirmed summary judgment when expert opinion was based entirely on subjective assessments)).

Here, this expert did no more than arrive at a conclusion favorable to the plaintiff and in doing so ignored the information he says his conclusion was based upon or misstated the facts that were included in these same documents and produced a conclusion that can, 3 at best, be described as uninformed speculation.

For the above reasons and the record as a whole defendant’s motion for summary judgment was granted in favor of defendant Holman only.

This court will now address plaintiffs’ remaining errors alleged on appeal. First, plaintiffs contend that this court erred by granting defendant General Motors Corporation’s motion in limine to apply South Carolina Law.

In deciding choice of law questions, we first must determine whether a true conflict exists between the laws of the two states, and, if a true conflict is present, we must analyze the governmental interests underlying the issue and determine which state has the greater interest in the application of its law.

Rosen v. Tesoro Petroleum Corp., 399 Pa. Super. 226, 231, 582 A.2d 27, 30 (1990) citing Cipolla v. Shaposka, 439 Pa. 563, 267 A. 2d 854 (1970).

As defendant General Motors Corporation explains in its motion in limine, Pennsylvania products liability law differs significantly from South Carolina products liability law. South Carolina law provides,

A products liability case may be brought under several theories, including strict liability, warranty, and negligence. See Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321 (Ct. App. 1995). In a products liability action, regardless of the theory on which the plaintiff seeks recovery, he must establish three elements: (1) he was injured by the products: (2) that injury occurred because the product was in a defective condition, unreasonably dangerous to the user; and (3) that the product at the time of the accident was in essentially the same condition as when it left the hands of the defendant.

Small v. Pioneer Mach. Inc., 329 S.C. 448, 462-63, 494 S.E.2d 835, 842 (Ct. App. 1997).

In contrast, in Pennsylvania,

In products liability cases, §402A of the Restatement (Second) of Torts has been adopted as the law of this Commonwealth, Webb. v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), and to prevail, the plaintiff must prove (1) that the product was defective, (2) that the defect existed when it left the hands of the defendant, and (3) that the defect caused the harm. Ellis v. Chicago Bridge & Iron Co. 376 Pa. Super. 220, 235, 545 A.2d 906, 909 (1988).

Riley v. Warren Mfg., Inc., 455 Pa. Super. 384, 390, 688 A.2d 221, 224(1997).

Thus, South Carolina law requires plaintiffs to establish that the product was not only defective but also unreasonably dangerous to the user. Evidence of industry standards is admissible to demonstrate the reasonableness of the design and that the product is dangerous beyond the expectations of the ordinary consumer; however, evidence of industry standards is not admissible in Pennsylvania products liability cases. See Bragg v. High-Ranger, Inc., 319 S.C. 531, 543, 462 S.E.2d 321 (Ct.App. 1995); Harsh v. Petroll, 840 A. 2d 404, 425 (Pa. Commw. Ct. 2003).

After having determined that a conflict exists between the laws of Pennsylvania and South Carolina, this court determined that South Carolina law should apply because South Carolina has the most significant relationship to the events precipitating the filing of the instant matter.

Under principles of comity, the rights and liabilities of the parties with respect to a tort action are determined by the law of the state which has the most significant relationship to the occurrence and the parties. See Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964); Restatement (Second) of Conflicts of Laws, §§145, 146; see also Giovanetti v. Johns-Manville Corp., 372 Pa. Super. 431, 539 A. 2d 871 (1988): Miller v. Gay, 323 Pa. Super. 466, 470 A.2d 1353 (1983). The following contracts, which are to be applied qualitatively rather than quantitatively under the case law, that are taken into account in determining which state law applies: the place where the injury occurred; the place where the conduct causing the injury occurred; the domicile, residence, nationality, place of incorporation, and place of business of the parties; and the place where the relationship between the parties is centered. Furthermore, in an action for personal injuries, the law of the state where the injury occurred normally determines the rights and liabilities of the parties, unless another state, applying the contacts test, has a more significant relationship to the occurrence and parties.

Laconis v. Burlington Cnty. Bridge Comm’n, 400 Pa. Super. 483, 491-92, 583 A.2d 1218, 1222-23 (1990).

Other than the fact that General Motors Corporation and Saturn Corporation both sell motor vehicles within the Commonwealth, Pennsylvania has no relationship to the instant action. Plaintiffs are residents of New Jersey and purchased the vehicle involved in the accident in New Jersey from Holman Saturn of English Creek. Defendant General Motors Corporation is a Delaware corporation with its principal place of business in Michigan. Defendant Saturn Corporation is a Delaware Corporation with its principal place of business in Michigan.

The motor vehicle accident occurred in South Carolina; therefore, South Carolina has the most significant relationship to the occurrence, and South Carolina products liability law should be applied.

Second, plaintiffs contend that this court erred by granting defendants’ motion to preclude plaintiffs from misrepresenting the contents of documents.

Specifically, defendants sought to preclude plaintiffs from claiming: In August 2004, John Hunter received a letter from Saturn Corporation indicating that a rollover test conducted on the Saturn Vue vehicle had revealed an increased rollover risk when the vehicle was subjected to certain steering maneuvers. (Defendants’ motion in limine, ¶2, quoting plaintiff’s pretrial memorandum).

This court granted the motion without prejudice to plaintiffs presenting the actual documents received by the plaintiffs at trial. Pursuant to Pennsylvania Rule of Evidence 1002, an original writing is required to prove its content. Under Rule 1003, a duplicate is also admissible to the same extent as the original “unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.” Pa. R.E. 1003. As explained by the comments to Rule 1002, “The rule inhibits fraud because it allows the parties to examine the original documents to detect alterations and erroneous testimony about the contents of the document.” Pa. R.E. 1002. Thus, plaintiffs are permitted to introduce the August 2004 letter into evidence at trial, but neither they nor their experts should be permitted to testify as to their interpretation of the letter as plaintiffs suggest in their answer in opposition to the motion in limine.

Third, plaintiffs contend that this court erred by denying plaintiffs’ motion to preclude reference to, use of, or introduction of statements of Alan Rouse, Carole Craddock and Arthur Cook, Jr. Alan Rouse is a South Carolina police officer, and Carole Craddock and Arthur Cook, Jr. are emergency medical personnel. All three have supplied sworn statements confirming their written reports made at the crash scene.

These witnesses are residents of South Carolina and thus not subject to the subpoena power of this court as trial witnesses; therefore, defendants’ counsel sought their depositions. According to the affidavit submitted by Mary Bolkcom, Esquire, she first contacted plaintiffs’ counsel about scheduling the depositions on December 5, 2007. (Affidavit of Mary Bolkcom, attached to response to plaintiffs’ motion in limine, ¶4). A Commission for Issuance of Subpoenas by the Colleton County South Carolina Court was issued by this court on July 8, 2008. (Affidavit of Mary Bolkcom, attached to response to plaintiffs’ motion in limine, ¶4). Ms. Bolkcom noticed the depositions for November 19, 2008, and due to a scheduling conflict, the depositions were again noticed for November 20, 2008. (Affidavit of Maiy Bolkcom, attached to response to plaintiffs’ motion in limine, ¶5).

Plaintiffs’ counsel, Gregory Heleniak responded by letter that he was unavailable in person on November 20th and declined to participate by telephone. (Affidavit of Mary Bolkcom, attached to response to plaintiffs’ motion in limine, ¶6). Other dates were suggested; however, Trooper Alan Rouse was unavailable. (Affidavit of Mary Bolkcom, attached to response to plaintiffs’ motion in limine, ¶6). On November 19, 2008, plaintiffs’ counsel filed an emergency motion to preclude the depositions. (Affidavit of Mary Bolkcom, attached to response to plaintiffs’ motion in limine, ¶7). After being informed that Ms. Bolkcom did not intend to take discovery depositions, but only to secure the witnesses’ statements, Mr. Heleniak stated he could not prevent defendants’ counsel from taking the statements, and the withdrew the emergency motion. (Affidavit of Mary Bolkcom, attached to response to plaintiffs’ motion in limine, ¶7). Ms. Bolkcom took statements from each of the three witnesses under oath on November 20, 2008. (Affidavit of Mary Bolkcom, attached to response to plaintiffs’ motion in limine, ¶8).

Plaintiffs did not object to defense counsel taking the statements, which is evidenced by their decision to withdraw the emergency motion. The motion in limine objects to what plaintiffs characterize as leading questions; however, plaintiffs do not specify which statements they are referring to, and this court cannot identify any leading statements.

Furthermore, even if the substance of the statements could be excluded at trial, the statements would be admissible as the bases of defendants’ experts’ opinions pursuant to Pennsylvania Rule of Evidence 703. The statements merely confirm the information in the reports made at the scene of the accident, and experts may rely on the statements of first responders in formulating their opinions

Fourth, plaintiffs contend that this court erred by granting defendants’ motion to quash notices to attend directed to defendants’ corporate representatives. However, the court granted the motion as uncontested. As plaintiffs never objected to the motion, they have not preserved the issue for appeal, and this court will not address it.

CONCLUSION

For the foregoing reasons, this court respectfully requests that its orders entered March 3, 2009, March 5, 2009, April 7, 2009 and October 6, 2009 be affirmed.

OPINION

Plaintiffs, John and Barbara Hunter, h/w, filed a complaint on December 8, 2006. Complaint, 03/24/11. This matter was assigned to this court on November 7, 2012 as the Team Leader for the 2009 and Back Program. We approved a stipulation on January 29, 2013 severing the claims of defendant, Holman Enterprises d/b/a Saturn at English Creek from the claims of General Motors Corporation and Saturn Corporation. Order, 1/29/13. Plaintiffs now appeal the orders of October 6, 2009, March 3, 2009, March 5,2009, and April 7,2009. Each of the appealed orders was decided by the Honorable Allan L. Tereshko.

This court relies upon the reasoning set forth in Judge Tereshko’s opinion, which is attached and incorporated herein. Opinion, 06/04/13. Accordingly, this court’s orders dated October 6, 2009, March 3, 2009, March 5, 2009, and April 7, 2009 should be affirmed.

      . The expert report fails to distinguish between the two types of recalls at issue here. The distinctive operative nature of the recalls is significant. ‘A customer satisfaction recall is significantly different from a safety recall. A safety recall involves a condition that presents an unreasonable risk of crashes or risk of injury or death in the event of a crash. A customer satisfaction recall is performed to protect the reputation of General Motors products or to provide owners with a product improvement after delivery of the vehicle.’ (Report of Dennis Kunkel, August 28,2008 at p.5.

      . Defendants also sought to prevent plaintiffs’ expert, R. Scott King from claiming that he reviewed recall information for the Saturn VUE; however, because this court has precluded R. Scott King’s testimony, the issue is moot.

      . An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. Pa. R.E. 703.


author: MASSIAH- JACKSON, J.,

text:
    John Doe 203 v. Archdiocese of Philadelphia

      Daniel F. Monahan, for plaintiff

      Allison Khaskelis, Thomas A. Bergstrom and H. Marc Tepper, for defendant Msgr William Lynn

      June 13, 2013

      Frank R. Emmerich Jr., Nicholas M. Centrella and Timothy M. Stengel, for defendants Resurrection of Our Lord School, Archb. Charles J. Chaput and Archdiocese of Philadelphia

      Andrea Toy Ohta, Richard J. Zack, Christen M. Tuttle, Derek E. Hines and Maria Feeley, for defendant Cardinal Justin Rigali
   MASSIAH- JACKSON, J.,

— In 2012, ten individuals filed nine lawsuits seeking money damages for injuries sustained as a result of sexual abuse they suffered while they were minors. In each case the Archdiocese of Philadelphia has been named as a defendant. Other named defendants include certain schools, parishes and priests as specified by each plaintiff.

The defendants filed preliminary objections to all complaints pursuant to Rule 1028(a)(2) and Rule 1028(a) (4) of the Rules of Civil Procedure. The purpose of this memorandum is to address the common issues raised by the parties. For the reasons which follow orders will be filed in each case which sustain in part and overrule in part the preliminary objections.

A. The Preliminary Objections to Strike Certain Allegations per Rule 1028(a)(2) are Overruled in Part and Sustained in Part.

Rule 1028(a)(2) provides that a court may sustain preliminary objections in the form of a motion to strike for the “inclusion of scandalous or impertinent matter.” Allegations are considered scandalous and impertinent if they are immaterial and inappropriate to the proof of the cause of action or bears negatively on the character of the defendant. Common Cause/Pa. v. Commonwealth, 710 A.2d 108, 115 (Pa. Commonwealth Ct. 1998); Dept. of Environmental Resources v. Peggs Run Coal Co., 423 A.2d 765 (Pa. Commonwealth Ct. 1980).

In this case, the plaintiff has relied on numerous references to the 2005 and 2011 Philadelphia Grand Jury Reports, the Victim’s Assistance Coordinator and the victim’s assistance program. In many paragraphs of the complaint, the plaintiff is pleading evidence and not the facts upon which the specific complaint is based. Such a pleading is inappropriate. The plaintiff acknowledges at page 14:

“Plaintiff’s complaint cites the two grand jury reports for detailed allegations to support his causes of action, but only through discovery will the parties discover the true nature of the relationship between the defendants....”

A complaint must formulate the issues by only summarizing those facts essential to support the claim. Accordingly, where a complaint includes allegations and procedures in situations not specific to this plaintiff and/or cast a derogatory light on the defendants, those statements are inappropriate and have no place in a pleading.

At this juncture, the plaintiff’s complaint will proceed on four counts: count I — childhood sexual abuse and vicarious liability, count II — negligence, count III — negligent supervision, and, count IV — fraudulent concealment. To the extent that defendants have challenged counts I, II, III and/or IV, the law says that if there is any doubt the demurrer should be overruled. Generally a principal is liable to third parties for actions committed by an agent even though the principal asserts he did not know of such conduct. See, Aiello v. Ed Saxe Real Estate, Inc., 499 A.2d 282 (Pa. 1985), where the Supreme Court reaffirmed the public policy to protect an “innocent third party”. 499 A.2d at 287:

“Today we reaffirm the longstanding and widely held rule of law that a principal is liable to innocent third parties for the frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances or misfeasances of his agent committed in the course of his employment, although the principal did not authorize, justify or participate in, or indeed know of, such misconduct, or even if he forbade the acts or disapproved of them.” (footnotes omitted)

See also, Shaffer v. Smith, 673 A.2d 872 (Pa. 1996), criminal conviction serves as a basis for collateral estoppel in a civil trial; W.C. Hurtt v. Stirone, 206 A.2d 624 (Pa. 1965), criminal conviction is exclusive evidence of certain facts; Columbia Medical Group, Inc. v. Herring & Roll, PC., 829 A.2d 1184 (Pa. Superior Ct. 2003), criminal conviction serves as collateral estoppel of certain facts. None of these factors above shift or negate the plaintiff’s burden of proof to establish the causes of action entitling him to relief.

To state a cause of action for negligence, the plaintiff must establish (1) a duty or obligation recognized by the law, (2) a breach or failure to conform to the standard of care required, (3) the causal connection between the breach and the resulting harm, and, (4) actual loss or damages. Reardon v. Allegheny College, 926 A.2d 477 (Pa. Superior Ct. 2007); Johnson v. Walker, 545 A.2d 947, 949 (Pa. Superior Ct. 1988). The appellate courts have recognized that a plaintiff may proceed against a defendant on theories of direct and vicarious liability. Certain paragraphs and sub-parts challenged by the individual and archdiocese defendants are necessary to the proofs for the causes of actions, thus the preliminary objections will be overruled.

In Scampone v. Highland Park Care Center, LLC, 51 A.3d 582 (Pa. 2012), the Supreme Court noted at 597:

“To prove negligence, a plaintiff may proceed against a defendant on theories of direct and vicarious liability, asserted either concomitantly or alternately. Liability for negligent injury is direct when the plaintiff seeks to hold the defendant responsible for harm the defendant caused by the breach of a duty owing directly to the plaintiff. By comparison, vicarious liability is a policy-based allocation of risk. Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178, 1181 (1992). ‘Vicarious liability, sometimes referred to as imputed negligence, means in its simplest form that, by reason of some relation existing between A and B, the negligence of A is to be charged against B although B has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it.’ Id. (quoting Prosser and Keeton on Torts § 69, at 499 (5th Ed. 1984)). Once the requisite relationship {i.e., employment, agency) is demonstrated, ‘the innocent victim has recourse against the principal,’ even if ‘the ultimately responsible agent is unavailable or lacks the ability to pay.’ Mamalis v. Atlas Van Lines, Inc., 522 Pa. 214, 560 A.2d 1380, 1383 (1989); accord Crowell, 613 A.2d at 1182 (vicarious liability is policy response to ‘specific need’ of how to fully compensate victim).”

Similarly, in R.A. v. First Church of Christ, 748 A.2d 692 (Pa. Superior Ct. 2000), the Superior Court held that Pennsylvania tort law imposes on an employer/master the duty to exercise reasonable care in selecting, supervising and controlling employees. Compare, Restatement (Second) of Agency §213 with Restatement (Second) of Torts §317. In the R.A. case, supra at 697, the court cited the Supreme Court and explained a plaintiff’s burden of proof: it must be shown that the employer/master knew or, in the exercise of ordinary care, should have known of the necessity for exercising control of his employee. Dempsey v. Walso Bureau, Inc., 246 A.2d 418, 422 (Pa. 1968).

The preliminary objections are overruled to the challenged paragraphs and sub-parts which are material to claims of negligence, vicarious liability, negligent supervision and sexual abuse of minors. This necessarily includes issues which may be raised about actual or constructive notice. See, Heller v. Patwil Homes, Inc., 713 A.2d 105 (Pa. Superior Ct. 1998).

The preliminary objections are also overruled to the extent this plaintiff has pled a cause of action in fraudulent concealment. For the doctrine of fraudulent concealment to be applicable, plaintiff must demonstrate that the defendant committed an affirmative independent act of concealment upon which the plaintiff justifiably relied. Krapf v. St. Luke’s Hospital, 4. A.3d 642 (Pa. Superior Ct. 2010) and cases cited at 650:

“The doctrine is based on a theory of estoppel, and provides that the defendant may not invoke the statute of limitations, if through fraud or concealment, he causes the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts. The doctrine does not require fraud in the strictest sense encompassing an intent to deceive, but rather, fraud in the broadest sense, which includes an unintentional deception. The plaintiff has the burden of proving fraudulent concealment by clear, precise, and convincing evidence. While it is for the court to determine whether an estoppel results from established facts, it is for the jury to say whether the remarks that are alleged to constitute the fraud or concealment were made.”

Fine v. Checchio, 870 A.2d 850 (Pa. 2005); Nesbitt v. Erie Coach Co., 204 A.2d 473 (Pa. 1964).

In the case at bar there is generally a two year statute of limitations, accordingly the challenged paragraphs and sub-parts can not be considered immaterial or inappropriate. See also, Lange v. Burd, 800 A.2d 336, 339 (Pa. Superior Ct. 2002).

Finally, the plaintiff appears to concede that he is attempting to meet his burden of proof in this civil litigation by relying on “the facts as discovered by the Philadelphia Grand Jurys [sic]....” Nonetheless, it will be up to the parties in this civil litigation to determine the facts discovered herein in order to go forward to trial. With this in mind, the preliminary objections to the introductory paragraphs of the complaint are sustained. These are details of investigations, which whether admitted or denied are so broad that they are presented to prejudice the defendants. These paragraphs are not “mere surplusage,” rather they are the proper subject of Rule 1028(a)(2) and shall be stricken.

Finally, if plaintiff alleges he or his family reported or consulted with the victim assistance program or a victim assistance coordinator, then the paragraphs relating that topic are overruled. If plaintiff did not assert such a report or consultation, those preliminary objections are sustained. Compare, Doe 203 —Paragraphs 56,60,61,62 with Dale — Paragraphs 75, 77. This complaint is not a class action, rather, this represents a single plaintiff bringing suit on his own behalf. Accordingly, the proofs necessary to meet the burden are personal to this single individual.

B. The Preliminary Objections in the Nature of a Demurrer to Dismiss Count V are Sustained with Prejudice.

The defendants have filed preliminary objections pursuant to Rule 1028(a)(4) asserting the legal insufficiency of count V — civil conspiracy to endanger children. In the absence of a civil cause of action to endanger the welfare of children, there can be no cause of action for civil conspiracy to endanger the welfare of children. This preliminary objection is sustained and count V is dismissed with prejudice.

A preliminary objection in the nature of the demurrer admits the well pleaded facts and the inferences reasonably deducible, but not the conclusions of law. The question presented is whether the law says with certainty that no recovery is possible. If there is any doubt, the doubt should be resolved by overruling the demurrer. McKeenan v. Corestates Bank, N.A., 751 A.2d 655 (Pa. Superior Ct. 2000); Rutherfoord v. Presbyterian University Hospital, 612 A.2d 500 (Pa. Superior Ct. 1992).

The plaintiff claims that Pennsylvania’s criminal statute, 18 Pa. C.S.A. §4304, implies a private cause of action “for endangering the welfare of children by a child whose welfare was endangered.” memorandum at page 10. The statute is set for as follows:

18Pa.C.S. § 4304 (2012)
§ 4304. Endangering welfare of children
(a) Offense defined.
(1) A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.
(2) A person commits an offense if the person, in an official capacity, prevents or interferes with the making of a report of suspected child abuse under 23 Pa.C.S. Ch. 63 (relating to child protective services).
(3) As used in this subsection, the term “person supervising the welfare of a child” means a person other than a parent or guardian that provides care, education, training or control of a child.
(b) Grading. —An offense under this section constitutes a misdemeanor of the first degree. However, where there is a course of conduct of endangering the welfare of a child, the offense constitutes a felony of the third degree.
1972, Dec. 6, P.L. 1482, No. 334, § 1, effective June 6, 1973. Amended 1988, Dec. 19, P.L. 1275, No. 158, § 1, effective in 60 days; 1995, July 6, P.L. 251, No. 31, § 1, effective in 60 days; 2006, Nov. 29, P.L. 1581, No. 179, § 1, effective in 60 days [Jan. 29, 2007].

The Official Comment in 1972 stated:

“OFFFICIAL COMMENT — 1972
This section is derived from Section 230.4 of the Model Penal Code.
There is no similar provision in existing law. Section 727 of The Penal Code of 1939 (18 P.S. § 4727) covers neglect to maintain a child or abandonment of a child by a parent or person having custody; Section 728 (18 P.S. § 4728) punishes cruelty to minors. Section 726 (18 P.S. § 4726) punishes the abandonment by a parent of a child under seven (7) years of age; Section 641 (18 P.S. § 4641) makes it a crime for a person having custody of a child to employ such child for certain purposes; etc.
This section consolidates and simplifies the various provisions concerning crimes endangering the welfare of children. The offense involves the endangering of the physical or moral welfare of a child by an act or omission in violation of legal duty even though such legal duty does not itself carry a criminal sanction.”

The parties have relied on Alfred M. Lutheran Distributors, Inc. v. A.P. Weilersvacher, Inc., 650 A.2d 83 (Pa. Superior Ct. 1994) in support of their positions. The Superior Court provided the roadmap for our analysis where, as here, a statute does not expressly grant or deny a private cause of action. The court quoted Cort v. Ash, 422 U.S. 66 (1975), and held at 650 A.2d 87:

“In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose especial benefit the statute was enacted, that is, does the statute create a...right in favor of the plaintiff? Second, is there an indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?”

The Superior Court was very clear that, “the central focus remains whether the legislature intended to create, either expressly or by implication, a private cause of action.”

On December 6, 1972, the Governor of Pennsylvania approved the revisions to the Criminal Code after comprehensive evaluation in both Houses of the state Legislature. State Senator Louis Hill (later a judge of the Philadelphia Court of Common Pleas) was chair of the judiciary committee and provided an overview of the purpose of the new Crimes Code (Senate Bill 455). See, legislative journal of the senate, page 1633 (September 12, 1972). He explained to his colleagues the origins of criminal law in Pennsylvania in the form of common law, and then the early attempts to codify our criminal laws in 1860 and 1939. The Pennsylvania Legislature adopted the Model Penal Code, in part, in 1967. According to senator hill, the goal of Senate Bill 455 was to “classify the crimes”, to “even out the disparity of many different offenses”, and, “close up a lot of loopholes.” The 1972 Crimes Code is a “tougher law”, “tougher on the criminal” and “not a soft-on-the criminal bill.”

The 1972 discussions by the General Assembly reflected their focus on criminal conduct and punishment. Senator Hill also commented that “the Pennsylvania Supreme Court is not taking a position on this because they feel it is a legislative matter.”

In 1988, Senate Bill 245 was addressed by the house of representatives. 18 Pa. C.S.A. §4304 was amended to increase the grading of the offense from a misdemeanor of the second degree to first degree. Legislative Journal of the House, page 1822-1823 (November 16, 1988). Representative Fox spoke of the reasons for increased penalties:

“This amendment, Mr. Speaker, would in fact raise the penalty for simple assault on a child under 12 years of age by an adult over 21 to a misdemeanor of the first degree. It is currently a misdemeanor of the second degree. With all the cases we hear about across the state dealing with child abuse and children who are defenseless, this kind of grading of the offense to the proper misdemeanor of the first degree we feel would be in the best interest of the children. It has the support of police departments in my area and those who deal with children in the children and youth services.
I would ask for an affirmative vote.”

The House of Representatives again considered 18 Pa. C.S.A. §4304, in their 2005-2006 Session. They approved a Senate Bill 1054 amendment to the statute which made it gender neutral. Legislative Journal of the House at 2474 (November 15, 2006).

While these legislative citations are not meant to be exhaustive, it is apparent that during the past 40 years, the General Assembly has had numerous opportunities to consider 18 Pa. C.S.A. §4304. This court concludes that the General Assembly of Pennsylvania has not given any indication of legislative intent to create a private cause of action.

Next, the plaintiff argues that he is within a class for whose especial benefit the statute was enacted. This court does not agree. The statute does not create or confer a right on those who claim they have been abused. Rather, like all criminal statutes, it is intended to protect the public in general from behavior which society finds abhorrent. When a statute is intended for the safety and welfare of the general public (by getting predators “off the streets”), that does not create a private cause of action. Restatement (Second) of Torts §288. Section 4304 is penal in nature and punishes those who engage in that predatory behavior. As the court noted in D’Errico v. DeFazio, 763 A.2d 424 at 430 (Pa. Superior Ct. 2000), to find that this statute was enacted for plaintiff’s especial benefit, would be to imply a private right of action in all criminal statutes and for all victims of crime. See also, Cort v. Ash, 422 U.S. 66 (1975), holding that while provisions for a criminal penalty do not necessarily preclude a private cause of action for damages, there must be “at least” a statutory basis to infer “that a civil cause of action of some sort lay in favor of someone.” 422 U.S. at 79-80. The Supreme Court stated that the analysis shall include a review of the legislative history and the underlying purpose of the legislative scheme.

Thus, as noted in Alfred M. Lutheran Distributors, Inc. v. A.P. Weilersvacher, Inc., supra, 650 A.2d at 90, we must “ascertain whether it is consistent with the underlying purpose of the legislative scheme to imply a private remedy in favor of [plaintiff].” As previously discussed, the stated purpose of the general assembly revisions to the crimes code was to update the model penal code. Senator Hill said that “controversial” statutes of the model penal code were not included in the 1972 updates. He said his committee believed “that the controversial ones would be addressed separately so as not to bog down the bill....”. Controversial statutes included the death penalty, abortion, the McNaughton Rule and others. Most pertinent to the issue here was Senator Hill’s assessment that “offenses which are not really penal” were not included in the 200 page Crimes Code — such as traffic offenses and hunting and fishing laws. Separate legislation was passed relating to drug abuse. See, Legislative Journal of the Senate, page 1633 (September 12, 1972). It is reasonable to conclude that if the General Assembly believed that §4304 was “not really penal” the statute could have been and would have been handled differently.

This plaintiff has not shown that a private cause of action may be implied in the statute. There is no evidence that the statute was designed or intended to provide monetary remedies for victims of abuse. This court is unable to find anything in the legislative purpose of the 1972 Crimes Code, including 18 Pa. C.S.A. §4304, endangering the welfare of children, to imply a private remedy for civil damages.

The plaintiff also suggests that child endangerment or child abuse should be treated differently than other societal ills. The plaintiff has not referred this court to any other jurisdiction which expressly or implicitly provides for a private cause of action. Without clear legislative direction such a decision would be tantamount to judicial policy-making. A sample of other jurisdictions is not inconsistent: Mark G. v. Sabol, 93 N.Y.2d 710, 717 N.E.2d 1067 (1999), when children who were aggrieved by the New York state foster care system sued child welfare officials for money damages, the court of appeals of New York held that an implied private right to sue would not be consistent with the legislative scheme of the child welfare reform act; Uhr v. East Greenbush Central School District, 94 N.Y.2d 32, 720 N.E.2d 886 (1999), statutory requirement that schools conduct periodic scoliosis screening was not enforceable by private action based on a claim for common law negligence; Doe v. North Central Behavioral Health Systems, Inc., 352 III.App.3d 284, 816 N.E.2d 4 (2004), parents of sexually abused children brought an action against a clinic that treated an abuser and then allegedly failed to report abuse, the appellate court affirmed the triql court’s holding that there was no private right of action and no common law negligence action; in Varela v. St. Elizabeth’s Hospital of Chicago, 372 III.App.3d 714, 867 N.E.2d 1 (2006), summary judgment was affirmed when a minor and his mother alleged a breach of common law duty when medical professionals violated abused and neglected child reporting act; in S.M. Fischer v. G. W. Metcalf, M.D., 14 Fla.L. Weekly 994, 543 So.2d 785 (1989), the court relied on Cort v. Ash, 422 U.S. 66 (1975) to conclude that a child had no civil cause of action based on a criminal statute requiring mental health professional to report child abuse; Freehauf v. School Board of Seminole County, 18 Fla.L. Weekly D1720, 623 So.2d 761 (1993), no private cause of action for failure to report child abuse without clear legislative direction to do so.

After considering the factors set forth by the United States Supreme Court and by Pennsylvania appellate courts, and in the absence of any indication by the Pennsylvania Legislature, expressed or implied, that this criminal statute provides for private civil action, count V is stricken from the complaint. The demurrer is sustained.

Defendants’ preliminary objections to claims of civil conspiracy based on negligence or purported violation of the criminal statute are sustained. Plaintiff has failed to state a viable cause of action. There can be no civil conspiracy when there is no underlying civil cause of action. E.g. Goldstein v. Phillip Morris, Inc., 854 A.2d 585 (Pa. Superior Ct. 2004); Morley v. Gory, 814 A.2d 762 (Pa. Superior Ct. 2002); McKeenan v. Corestates Bank, N.A., 751 A.2d 655 (Pa. Superior Ct. 2000); Pelagatti v. Cohen, 370 A.2d 422 (Pa. Superior Ct. 1987).

C. Conclusion

For all the reasons set forth above the defendants’ preliminary objections are sustained in part and overruled in part. All parties should go forward with discovery and prepare for trial.

And now, this 13 day of June, 2013, upon consideration of the preliminaiy objections filed by defendants, and any responses thereto, and for the reasons set forth in the memorandum filed this date, it is hereby ordered that the preliminaiy objections are sustained in part and overruled in part:

a. Preliminaiy objections to paragraphs 7 through 23, 53, 55-56, 60-62, 120 are sustained and stricken;

b. Preliminary objections to paragraphs 40, 41(h), (n), (o), (k), 46, 49, 50 are overruled; and,

c. CountV of the complaint is dismissed with prejudice.

The defendants shall file an answer to the complaint within twenty (20) days after this order is docketed.