author:
NEW, J.,

      QUIÑONES ALEJANDRO,

text:
    Bickelman v. Abington Memorial Hospital

      C.P. of Philadelphia County,
    December Term 2001,
    no. 3331.

      Edward Joseph Carreiro, for plaintiff.

      Donald J. Brooks, Frank A. Gerolamo, Marcy H. Landis, Kevin H. Wright, John Carleton Farrell and Bartholomew C. Tuttle, for defendants.
    September 11, 2002
   NEW, J.,

PROCEDURAL AND FACTUAL HISTORY

Plaintiff Grace Bickelman, on behalf of her husband, decedent Charles Bickelman, filed a medical malpractice action in Philadelphia County on December 21,2001. Plaintiff alleged that her husband sustained a perforated esophagus during cervical lamenectomy surgery. This condition, which remained undiagnosed and untreated by the defendants, ultimately resulted in his untimely death. This cause of action arose while decedent was a patient at defendant Abington Memorial Hospital which is a corporation located in Montgomery County, Pennsylvania. It is also averred that all individual defendants reside and work in Montgomery County and all the corporate defendants operate business in Montgomery County.

After service of the complaint, several defendants filed preliminary objections. This court issued five orders ruling on the preliminary objections of the various defendants. By order dated July 8,2002 this court ruled Philadelphia County was an improper venue and transferred the matter to Montgomery County. The court also struck all allegations of recklessness from the plaintiff’s complaint. On August 6, 2002, plaintiff timely filed notices of appeal to three of the orders issued by the court on July 8, 2002.

LEGAL ANALYSIS

Plaintiff has appealed the court’s orders to the preliminary objections of (1) Edward J. Ginley M.D. and Anesthesia Associates of Abington; (2) Abington Memorial Hospital and Ralph Morgan C.R.N.A.; and (3) Steven J. Barrer M.D. and Regional Neurosurgical Associates RC. Plaintiff raised two issues on appeal. The first was that the trial court erred when it sustained defendant’s preliminary objections transferring venue to Montgomery County. The second was that the court erred when it struck all allegations of recklessness in the complaint.

THE COURT PROPERLY RULED VENUE WAS IMPROPER IN PHILADELPHIA COUNTY AND TRANSFERRED THE CASE TO MONTGOMERY COUNTY

Since the issues raised by the plaintiff in the present case with respect to venue were similar to those raised by the plaintiff in Krosnowski v. Ward M.D., Philadelphia Court of Common Pleas, October term 2001, no. 0822, this court adopts and attaches the opinion of Judge Quiñones Alejandro dated May 2, 2002 in the above-mentioned case. The Honorable Judge Quiñones Alejandro also sustained preliminary objections and transferred venue to Montgomery County.

STRIKING ALL ALLEGATIONS OF RECKLESSNESS IN THE COMPLAINT WAS PROPER

The plaintiff has waived her right to argue on appeal that the court erred when it sustained defendants’ preliminary objections to strike all allegations of recklessness in the complaint. In plaintiff’s memorandum of law in response to defendant Abington Memorial Hospital’s preliminary objections she stated “[pjlaintiff has no objection to removing the term ‘recklessness’ from paragraphs 70,71, 82, 90, 94, and 96 of her complaint.” Additionally, in plaintiff’s response to Edward J. Ginley M.D. and Abington Anesthesia Associates’ preliminary objections she stated her willingness to remove all allegations of “reckless conduct” contained in her complaint. In fact, she requested leave of court to do so. Moreover, plaintiff has conceded that punitive damages were not warranted in this matter. Since the court reviewed all preliminary objections to plaintiff’s complaint simultaneously and relied on plaintiff’s own statements in her memoranda of law with regard to striking all allegations of recklessness, the court acted properly in sustaining defendants’ preliminary objection.

Wherefore, for the above stated reasons the orders of this court transferring venue to Montgomery County and striking all allegations of recklessness should be upheld.

QUIÑONES ALEJANDRO,

May 2, 2002-

INTRODUCTION

On October 4, 2001, Dolores Krosnowski as the administratrix of the estate of Thaddeus Krosnowski, deceased, (plaintiff) commenced a wrongful death action and survival action against Stephen D. Ward M.D., Bruce G. Roy M.D., Robert E. Dee M.D., Kisha Martin M.D., Abington Primary Care Medicine P.C., Abington Pulmonary and Critical Care Associates Ltd., Associates in Infectious Disease, Abington Memorial Hospital, and Abington Memorial Hospital Foundation (defendants) based on their alleged professional and/or corporate negligence. In response to the complaint, several of the defendants filed preliminary objections challenging venue and requesting the transfer of this civil action to Montgomery County. After carefully considering the pleadings and responses thereto, this motion judge sustained the preliminary objections and transferred the matter to Montgomery County. On appeal, plaintiff argues that this ruling was in error.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Briefly, the factual history defined by the pleadings, exhibits, and memoranda submitted in support of the parties’ respective preliminary objections and responses, is as follows:

“At all relevant time periods of this action, Dolores Krosnowski and her now deceased husband, Thaddeus Krosnowski, resided at 140 Hogeland Road, Southampton, Montgomery County, Pennsylvania.

“Stephen D. Ward M.D., is a licensed physician specializing in internal medicine, who resides at 1362 Welsh Road, North Wales, Montgomery County, Pennsylvania, with professional offices at 1339 Easton Road, Abington, Montgomery County, Pennsylvania.

“Bruce G. Roy M.D., is a licensed physician specializing in internal medicine, pulmonary medicine, and critical care, with professional offices at 1235 Old York Road, Suite 121, Abington, Montgomery County, Pennsylvania.

“Robert E. Dee M.D., is a licensed physician specializing in internal medicine and infectious diseases, with professional offices at 1235 Old York Road, Suite 220, Abington, Montgomery County, Pennsylvania.

“Abington Primary Care Medicine PC., is a professional corporation located at 1372 Easton Road, Roslyn, Montgomery County, Pennsylvania.

“Abington Pulmonary and Critical Care Associates is a professional corporation located at 1235 Old York Road, First Floor, Abington, Montgomery County, Pennsylvania.

“Associates in Infectious Disease is a professional corporation located at 1235 Old York Road, Suite 220, Abington, Montgomery County, Pennsylvania.

“Abington Memorial Hospital (AMH) and Abington Memorial Hospital Foundation (AMHF) are medical corporations located at 1200 Old York Road, Abington, Montgomery County, Pennsylvania.

“Kisha Martin M.D., is a resident physician employed with defendant AMH.

“On September 29, 1999, Thaddeus Krosnowski (decedent) was admitted into defendant AMH by defendant Ward with a diagnosis of distal enteritis. On October 3, 1999, he underwent a surgical procedure for a perforated appendix. On October 8, 1999, decedent experienced a sudden onset of shortness of breath, pleuritic chest pain, diaphoresis and oxyhemoglobin desaturation. Each of the defendant-physicians allegedly made entries in decedent’s medical records and the diagnosis of pulmonary embolus was noted in the chart. There are no orders by any of said defendant-physicians for any diagnostic tests to confirm the noted diagnosis and/or to provide anticoagulation therapy to decedent. On October 14,1999, decedent died as a result of a sudden onset of respiratory distress and a subsequent cardiac arrest. Post-mortem examination done on October 15, 1999, revealed evidence of fresh pulmonary emboli and pulmonary emboli that had occurred several days earlier. The cause of death was noted to be an acute pulmonary embolism.”

Procedurally, the record reveals that:

“On October 4, 2001, plaintiff commenced a wrongful death action and a survival action based on claims of medical malpractice and/or corporate negligence against defendants. Timely preliminary objections averring improper venue were filed by defendants Roy, Dee, Critical Care, Associates and AMH.

“On November 14, 2001, plaintiff filed an amended complaint. Defendants Roy, Critical Care, Ward, Martin, AMH, AMHF, Dee and Associates timely filed preliminary objections to plaintiff’s amended complaint and again argued, inter alia, improper venue and legal insufficiency. Plaintiff filed timely answers in opposition to the preliminary objections, and defendants Ward, Martin, AMH and AMHF filed a reply.

“On January 9, 2002, these pleadings were assigned to this motion judge. By orders dated January 14, 2002, this motion judge sustained defendants’ preliminary objections and transferred the matter to Montgomery County, with costs to be borne by plaintiff.

“Dissatisfied with the portion of the order which transferred venue, plaintiff, on February 5,2002, filed timely appeals.”

ISSUE

In response to an order issued in accordance with Pennsylvania Rule of Appellate Procedure 1925(b), plaintiff, on March 21, 2002, filed of record a statement of matters complained of on appeal and argued that this motion judge erroneously sustained defendants’ preliminary objections in that:

“(1) venue properly lies in Philadelphia County as to defendant Abington Memorial Hospital because defendants failed to meet their burden of establishing that plaintiff’s choice of forum was improper, and because Abington Memorial Hospital maintains sufficient quality and quantity of contacts with Philadelphia County under existing case law in the following ways:

“(a) by holding itself out as a Philadelphia County health-care institution and marketing its service, to residents of Philadelphia County;

“(b) through the ‘CHOP Connection’ and its close affiliation with Children’s Hospital of Philadelphia in Philadelphia County;

“(c) and through its regular use of the Court of Common Pleas of Philadelphia to conduct litigation as a plaintiff and defendant in civil matters.

“(2) Defendant AMH furthers its corporate objective of patient care through its residency programs which depend on their close affiliations with teaching hospitals in Philadelphia County; and

“(3) this court has repeatedly overruled identical objections to venue in Philadelphia County raised by defendant AMH in other cases.”

LAW AND DISCUSSION

It is well-settled that improper venue shall be raised by preliminary objection. Pennsylvania Rules of Civil Procedure 1006(e) and 1028(a)(1); Kubik v. Route 252 Inc., 762 A.2d 1119, 1123 (Pa. Super. 2000). Questions of venue must be raised at the first reasonable opportunity, otherwise, they are deemed waived. Id. A trial/motion judge has the discretion to sustain or overrule preliminary objections that challenge venue. Mathues v. Tim-Bar Corp., 438 Pa. Super. 231, 234, 652 A.2d 349, 351 (1994). A court’s ruling will depend on the facts of the particular case and will not be disturbed if the decision is reasonable in light of the facts. Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384, 387 (Pa. Super. 2002); Masel v. Glassman, 456 Pa. Super. 41, 45, 689 A.2d 314, 316 (1997). It is understood that a plaintiff’s choice of forum is to be given great weight so long as the requirements of personal and subject matter jurisdiction are satisfied, and it is the defendant who has the burden in asserting a challenge to the plaintiff’s choice of venue. Kubik, supra at 1122; Shears v. Rigley, 424 Pa. Super. 559, 564, 623 A.2d 821, 824 (1993). If there exists any proper basis for the court’s decision to sustain the preliminary objections and transfer venue, the decision must stand. Estate of Werner ex rel. Werner v. Werner, 781 A.2d 188 (Pa. Super. 2001). Further, a decision to transfer to an appropriate county will not be reversed unless there is a showing of an abuse of discretion. Johnson v. Henkels & McCoy Inc., 707 A.2d 237, 239 (Pa. Super. 1997).

To show an abuse of discretion, an appellant must show that in reaching a conclusion, either a law was overridden or misapplied, or the judgment exercised was manifestly unreasonable, or the result of bias, prejudice, or ill will. Commonwealth v. Baker, 564 Pa. 192, 198, 766 A.2d 328, 331 (2001).

Generally, venue is determined by either Pa.R.C.P. 1006 or 2179. Specifically, Rule 1006(a) provides that: “an action against an individual may be brought in and only in a county in which the individual may be served or in which the cause of action arose or where the transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.” Pa.R.C.P. 1006(a).

As for personal actions against a corporation or similar entity, Rule 2179(a) provides that these actions may be brought in and only in:

“(1) the county where the registered office or principal place of business is located;
“(2) a county where it regularly conducts business;
“(3) the county where the cause of action arose; or
“(4) a county where the transaction or occurrence took place out of which the cause of action arose.” Pa.R.C.P. 2179(a).

In addition, under the general rule of venue, an action involving multiple defendants who may be jointly and severally liable, may be brought against all defendants in any county in which the venue may be laid against any one of the defendants. Pa.R.C.P. 1006(c).

Here, it is undisputed that the alleged medical malpractice action occurred in Montgomery County. It is further uncontested that the defendant-physicians have offices and/or residences in a county other than Philadelphia County, and that defendant AMH has its principal place of business in Montgomery County. In light of the cited rules, the determinative issue to establish venue in Philadelphia County is whether defendant AMH regularly conducts business in Philadelphia County.

To determine whether a corporation regularly conducts business in a particular county, a court must focus on the nature of the acts the corporation allegedly performs in that county, which must be assessed both as to their quantity and quality. Gale v. Mercy Catholic Medical Center Eastwick Inc., Fitzgerald Mercy Division, 698 A.2d 647, 651 (Pa. Super. 1997), appeal denied, 552 Pa. 693, 716 A.2d 1249 (1998); Mathues, supra at 234, 652 A.2d at 351. (emphasis added) Acts satisfying the quality test are those directly, furthering, or essential to, corporate objects; they do not include incidental acts. Gale, supra. (citations omitted) Acts satisfying the quantity test are those so continuous and sufficient to be general or habitual. Id. In combined form, the acts of a corporation must be distinguished: those in aid of a main purpose are collateral and incidental, while those necessary to its existence are direct. Shambe v. Delaware and Hudson Railroad Company, 288 Pa. 240, 135 A. 755 (1927); Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282 (1990).

As stated, plaintiff argues that venue is appropriate in Philadelphia County because defendant AMH holds itself out as a Philadelphia County health-care institution and markets its services to residents of Philadelphia by its listings in the Bell Atlantic Philadelphia Yellow Pages, and in its inclusion in the 2001 Dorland’s Physician Directory as a “regional health center serving people in Montgomery, Bucks and Philadelphia Counties.” Additionally, plaintiff contends that defendant AMH’s close affiliation with the Children’s Hospital of Philadelphia (CHOP) is sufficient to confer venue in Philadelphia County. Defendant AMH’s website describes the CHOP connection at AMH as an enhancement to AMH’s inpatient program. The program provides 24-hour coverage by CHOP physicians for pediatric inpatients, as well as consultations by other pediatric specialists.

As to plaintiff’s argument that defendant AMH’s advertisements in Philadelphia County confers venue therein, plaintiff is mistaken since clearly, advertising does not amount to conducting business for purposes of venue. See Purcell, supra. Further, the activities on the website are also merely incidental functions and not central to defendant AMH’s business. See Kubik, supra.

Plaintiff is also mistaken in her argument that because defendant AMH is involved with CHOP to provide 24-hour coverage by CHOP physicians to defendant AMH’s pediatric inpatients, this arrangement confers venue in Philadelphia County. This is a service done at defendant AMH’s facility by staff physicians, some of whom may also have privileges at CHOP. Again, in this motion judge’s opinion, this relationship does not confer venue in Philadelphia County. As stated in Purcell, supra, this conclusion might have been different had defendant AMH established a branch clinic or program in CHOP or anywhere else in Philadelphia where paying customers would be diagnosed or treated on its premises in Philadelphia.

In addition, as an enhancement to AMH’s own inpatient program, this motion judge opines that this arrangement is analogous to having residents rotate in a hospital, albeit these physicians may or may not be residents, and is, therefore, incidental to defendant AMH’s corporate objectives as a health-care provider. Again, see Purcell, supra.

Plaintiff argues that defendant AMH furthers its corporate objective of patient care through its residency programs which depend on their close affiliations with teaching hospitals in Philadelphia County. Once again this motion judge disagrees and acknowledges the court’s holding in Purcell, supra, that the rotation and use of medical personnel is essentially an educational process which does not amount to the quality of business activity, and that such arrangements with the medical schools go beyond mere incidental contacts rather than being essential. Purcell, supra at 247, 579 A.2d at 1287.

Finally, plaintiff argues that this court has overruled identical objections to venue raised by defendant AMH in other matters. This argument is of no import since in deciding whether venue is proper, each case must rest on its own facts. Gale, supra at 650. This motion judge does not have to follow rulings in other cases, wherein defendant AMH raised preliminary objections challenging venue. Of interest, defendant AMH points to many other rulings where preliminary objections were sustained and venue was transferred out of Philadelphia County. Further, it has been suggested that medical providers are not in the business of commencing lawsuits. See Gale, supra at 652 n.8, where the court stated that “the fact that Mercy has initiated legal proceedings in Philadelphia County in the past [is] insufficient to satisfy venue requirements ... [its] business is the provision of medical care, not the commencement of lawsuits.” Thus, plaintiff’s argument that venue is proper through defendant AMH’s regular use of the Court of Common Pleas of Philadelphia to conduct litigation as a plaintiff and defendant in civil matters has no merit.

CONCLUSION

Based on the foregoing analysis and case law, in particular Purcell, supra and Gale, supra, this motion judge opines that when analyzing the quantity and quality of defendant AMH’s activities in Philadelphia County, these are not sufficient to confer venue in Philadelphia County in this matter. Therefore, this motion judge respectfully requests that plaintiff’s appeal be dismissed and that the orders of January 14, 2002, be affirmed.

      . Each of the orders contains one or both issues the plaintiff complains of on appeal, therefore this court will address both issues in this opinion.

      . Plaintiff also makes a forum non conveniens argument in response to the defendants’ preliminary objections to improper venue. This court transferred venue based on improper venue under Pa.R.C.P. 1006(a) and Pa.R.C.P. 2179 and not because venue was inconvenient to defendants under Pa.R.C.P. 1006(d). A forum non conveniens argument is inapplicable.

      . Plaintiff’s statement of matters complained of on appeal, p. 4.

      . This order also struck the terms “agents, servants, employees and ostensible agents,” and granted plaintiff leave to file a second amended complaint. On February 5, 2002, plaintiff filed another amended complaint.

      . 2001 Dorland’s Physician Directory, p. 487.

      . Plaintiff characterized this relationship as an affiliation.


source: Caselaw Access Project

author: NANOVIC, J.,

license: Public Domain

text:
    Commonwealth v. Darling

      C.P. of Carbon County,
    no. 002 CR 02.

      David W. Addy, for the Commonwealth.

      Brett J. Riegel, for defendant.
    September 11, 2002
   NANOVIC, J.,

Barbara C. Darling, the defendant in these criminal proceedings, appeals the amount of restitution and the designation of the victim’s medical providers as the direct recipients of payments for restitution.

On April 2, 2002, Darling pled guilty to one count of careless driving, and one count of involuntary manslaughter involving the death of Christopher Bemek. Bemek, then 25 years of age, was injured on October 6, 2001, when he fell from the open bed of a pickup truck being carelessly driven by Darling. Bemek was transported to St. Luke’s Hospital and died the following day from injuries sustained in the fall.

Sentencing occurred on July 12, 2002. At that time the court had the benefit of a presentence investigation report prepared by the County Adult Probation Office. A victim’s impact statement completed on behalf of the victim’s estate was included in this report. This statement indicated that medical expenses obtained to date for treatment of the victim were in excess of $30,000 and not complete. Attached to the victim’s impact statement was a bill from St. Luke’s Hospital totaling $23,647.90, a bill from St. Luke’s Trauma Care Associates totaling $4,994, and a bill from Penn Forest Ambulance totaling $899. All three invoices were billed to the victim. Also attached to the victim’s impact statement was a bill in the amount of $6,220.36 from Donald N. Gower Funeral Home Inc. for the victim’s funeral expenses. The presentence report indicated that $5,000 of this amount was paid from the victim’s insurance company as first-party benefits.

The presentence report recommended that restitution be paid to the estate of Christopher Bemek in the amount of $1,220.36 (i.e., the funeral expense of $6,220.36 less the $5,000 received in first-party benefits), to St. Luke’s Hospital in the amount of $19,963.65, to St. Luke’s Trauma Care Associates in the amount of $546 and to Code 3 Billing in the amount of $339.80. At the time of sentencing, Darling did not question or dispute the amount of the victim’s medical or funeral expenses for which restitution was ordered, but did question the propriety of ordering restitution to persons other than the direct victim. This court’s order of sentence dated July 12, 2002 accepted the recommendations of restitution contained in the presentence report.

In Darling’s statement of matters complained of on appeal pursuant to Pa.R.Crim.P. 1925(b), Darling claims that copies of medical bills attached to a presentence investigation report do not constitute sufficient evidence of record to determine the amount of restitution, that direct payment to medical providers for medical and hospital services provided to a victim is not authorized by section 1106 of the Pennsylvania Crimes Code and that, if the restitution award is deemed proper, the order of sentence failed to direct the priority of payment of restitution in accordance with section 1106(c)(ii) of the Crimes Code. To better understand the issues and the court’s resolution of these issues, a brief review of the law of restitution is helpful.

The statutory authority for restitution in sentencing appears in both the Crimes Code, 18 Pa.C.S. § 1106(a)(b), and the Sentencing Code. 42 Pa.C.S. §§9721(c), 9754. The Crimes Code requires that mandatory restitution be ordered by the trial court at the time of sentencing “so as to provide the victim with the fullest compensation for the loss.” 18 Pa.C.S. §1106(c)(l)(i). The term “victim” includes a victim who has “suffered personal injury directly resulting from the crime” as well as the “Crime Victim’s Compensation Fund if compensation has been paid by the Crime Victim’s Compensation Fund to the victim and any insurance company that has compensated the victim for loss under an insurance contract.” 18 Pa.C.S. §1106(a) (h); 18 P.S. §11.103. Restitution is to be ordered “regardless of the current financial resources of the defendant.” 18 Pa.C.S. §1106(c)(l)(i). Only upon default is defendant’s ability to pay to be considered. Commonwealth v. Colon, 708 A.2d 1279, 1284 (Pa. Super. 1998); 42 Pa.C.S. §9730. But cf. In Interest of Dublinski, 695 A.2d 827, 830 (Pa. Super. 1997) (restitution in juvenile court is governed by 42 Pa.C.S. §6352— in juvenile court, a juvenile’s earning capacity must be considered when ordering restitution).

Restitution may be imposed either as a direct sentence or as condition of probation or parole. 42 Pa.C.S. §9721(c). See also, 18 Pa.C.S. §1106(a) (direct sentence); 18 Pa.C.S. ,§1106(b) and 42 Pa.C.S. §9754(c)(8) (condition of probation). Whether imposed as a direct sentence or as a condition of probation, an order of restitution is a sentence. Commonwealth v. Dinoia, 801 A.2d 1254, 1257 n.1 (Pa. Super. 2002). “When imposed as a [direct] sentence, the injury to property or person for which restitution is ordered must directly result from the crime.” In the Interest of M.W., 555 Pa. 505, 511, 725 A.2d 729, 732 (1999). The sentencing court must apply a “but for” test imposing restitution. “[DJamages which occur as a direct result of the crime [s] are those which [would] not have occurred but for the defendant’s criminal conduct.” Commonwealth v. Gerulis, 420 Pa. Super. 266, 288, 616 A.2d 686, 697 (1992), alloc. denied, 535 Pa. 645, 633 A.2d 150 (1993); cf. Commonwealth v. Cooper, 319 Pa. Super. 351, 466 A.2d 195 (1983) (restitution determined improper where a motorist who struck and killed a young boy riding a bicycle pled guilty only to the offense of leaving the scene of an accident and not to any crime holding him criminally responsible for having struck and killed the victim). However, “when restitution is ordered as a condition of probation, the sentencing court is accorded the latitude to fashion probationary conditions designed to rehabilitate the defendant and provide some measure of redress to the victim.... As this court stated in Harner, [Commonwealth v. Harner, 533 Pa. 14, 22, 617 A.2d 702, 707(1992)]:

“Such sentences are encouraged and give the trial court the flexibility to determine all the direct and indirect damages caused by a defendant and then permit the court to order restitution so that the defendant will understand the egregiousness of his conduct, be deterred from repeating this conduct, and be encouraged to live in a responsible way....

“Thus, the requirement of a nexus between the damage and the offense is relaxed where restitution is ordered as a condition of probation.” In the Interest of M. W., 555 Pa. at 511-12, 725 A.2d at 732 (1999). (citations omitted)

Because restitution is a sentence, the amount ordered must be supported by the record; it may not be speculative or excessive. Commonwealth v. Wright, 722 A.2d 157, 159 (Pa. Super. 1998). Restitution reimburses or compensates a victim for fixed and definite losses; a sentence of restitution is not an award of damages. Id. at 160; see 18 Pa.C.S. §1106(h) (definition of the term “restitution”). For this reason, while restitution may be imposed for the expense of psychological treatment and counseling of victims who have sustained actual emotional or mental disturbances from a defendant’s conduct, restitution may not be awarded for general damages such as pain and suffering. Commonwealth v. Balisteri, 329 Pa. Super. 148, 156 n.8, 478 A.2d 5, 9 n.8 (1984); Commonwealth v. Cannon, 387 Pa. Super. 12, 29-30, 563 A.2d 918, 927 (1989), alloc. denied sub nom, Commonwealth v. Reap, 525 Pa. 597, 575 A.2d 564 (1990).

Nor is the primary object of restitution retribution or deterrence, the hallmarks of criminal punishment. The intent and effect of restitution is primarily “rehabilitation of the offender by impressing upon him that his criminal conduct caused the victim’s loss or personal injury and that it is his responsibility] to repair the loss or injury as far as possible” and secondarily to compensate the victim of the crime for his loss. Commonwealth v. Kline, 695 A.2d 872, 876 (Pa. Super. 1997), appeal denied, 552 Pa. 693, 716 A.2d 1248 (1998). Only incidentally does retribution have a deterrent or penal effect. Id. at 877. Because the traditional goals of restitution are completely remedial and non-punitive, restitution is not punishment within the meaning of the ex post facto clause of the United States Constitution and may be imposed for offenses and conduct which predate the statutory authorization for restitution. Id.

With these principles in mind, Darling’s issues can now be addressed.

A. The Record Supports the Amount of Restitution Ordered

In Commonwealth v. Wright, 722 A.2d 157 (Pa. Super. 1998), for purposes of grading the offenses of criminal mischief and agricultural vandalism, the jury determined that the loss sustained was greater than $1,000 but less than $5,000. This finding by the jury notwithstanding, the trial court’s order directing the payment of restitution in the amount of $20,745.82 was held to be supported by the record before the sentencing court.

In Wright, the defendant was convicted of criminal mischief and agricultural vandalism for damage to two farming combines. At the time of sentencing, the court was presented with estimates and repair bills totaling $20,745.82. Although the one combine was repaired as of the time of trial, the other had not yet been repaired when trial occurred. Under these circumstances, the amount of restitution ordered by the court was held to be supported by the record at the time of sentencing. See also, Commonwealth v. Yanoff, 456 Pa. Super. 222, 234, 690 A.2d 260, 266 (1997), appeal denied, 548 Pa. 678, 699 A.2d 735 (1997) (itemization of funeral expenses in presentence report sufficient to support restitution for these expenses).

In the present case, Darling pled guilty to the charges of careless driving and involuntary manslaughter. Consequently, there was no trial testimony. However, the presentence investigation report prepared pursuant to Pa.R.Crim.P. 702 was made part of the record at sentencing. This report contained copies of the billing invoices for the medical, hospital, and emergency services actually provided to the victim for injuries directly attributable to Darling’s conduct for which she pled criminally responsible. Neither the reasonableness nor necessity of the amounts contained in these billings were challenged or disputed by Darling at the time of sentencing.

The record supports the order for restitution and the amount ordered was neither speculative nor excessive.

B. The Crimes Code Requires That Payment of Restitution Be Made Directly to the Victim’s Estate Rather Than to the Medical Providers

Both the Crimes Code and Sentencing Code require that restitution be ordered so as to compensate the victim for his loss. 18 Pa.C.S. §1106; 42Pa.C.S. §9721(c). Though a medical provider is admittedly not a victim as defined in the Crimes Code, 18 Pa.C.S. §1106(h) and 18 PS. §11.103, it might reasonably be argued that the direct payment to creditors for debts incurred by the victim for medical treatment necessitated by defendant’s criminal conduct will directly benefit the victim, dollar for dollar, and, consequently, in a broad, but very real sense, serve to compensate the victim. Such payments in satisfaction of the victim’s legal obligations might be contrasted to those cases in which the victim was not legally obligated to make payment for treatment or benefits he received and for which direct payments of restitution to the provider would not confer a further benefit or compensation to the victim. Cf. Commonwealth v. Runion, 541 Pa. 202, 662 A.2d 617 (1995) (victim’s medical expenses paid by public assistance for which victim as recipient of entitlement benefits was under no obligation to repay the Department of Public Welfare).

Such distinction notwithstanding, section 1106(e) of the Crimes Code, 18 Pa.C.S. § 1106(e), provides that payments for restitution must not only be collected by the probation department, but that such payments are to be forwarded to the victim. Underlying this procedure is the apparent policy that restitution is not meant to be a reimbursement system to third parties but a compensation system to “victims” as that term is defined in the definitional section of the statute. Commonwealth v. Figueroa, 456 Pa. Super. 620, 627, 691 A.2d 487, 491 (1997). Therefore, unless the medical provider is itself a victim, such status requiring that the provider’s loss be caused directly by a defendant’s criminal conduct rather than a loss merely consequential to such conduct, direct payments of restitution to the provider should not be ordered by the court. Commonwealth v. Layhue, 455 Pa. Super. 89, 93, 687 A.2d 382, 383 (1996) (enbanc); Commonwealth v. Balisteri, 329 Pa. Super. 148, 158, 478 A.2d 5, 10 (1984) (payment of restitution limited to the direct victim and not to third parties who shoulder the financial burden of the victim’s losses).

Consequently, while we agree with Darling’s claim that medical providers are not the proper recipients of payments of restitution, acceptance of this position does not eliminate Darling’s obligation to pay restitution. Section 1106(c)(3) of the Crimes Code, 18 Pa.C.S. § 1106(c)(3), with proper notice to and an opportunity to be heard by the defendant, provides authority to amend or modify an order of restitution “at any time.” Commonwealth v. Dinoia, 801 A.2d 1254, 1257 (Pa. Super. 2002). Whereas previously this authority to amend or modify a sentence of restitution could not exceed the maximum term of imprisonment to which the offender could have been sentenced for the crime of which he was convicted, Commonwealth v. Luper, 745 A.2d 1248 (Pa. Super. 2000), that limitation was deleted in the 1998 revisions to section 1106 and “[t]he court may, at any time . . . alter or amend any order of restitution made pursuant to paragraph (2), provided, however, that the court states its reasons and conclusions as a matter of record for any change or amendment to any previous order.” 18 Pa.C.S. § 1106(c)(3). This authority, we believe, extends not only to adjust the amount of restitution, when justified, but also to correct errors in naming the recipients of restitution.

In accordance with the foregoing, it is respectfully requested that this matter be remanded to this court for resentencing as to restitution. See orders of remand in Commonwealth v. Walker, 446 Pa. Super. 43, 63, 666 A.2d 301, 311 (1995); Commonwealth v. Mathis, 317 Pa. Super. 362, 374, 464 A.2d 362, 369 (1983). Such disposition and the direct payment of restitution to the victim’s estate renders moot the third issue raised by Darling on appeal.

      . Challenges to the legality of a sentence are non-waivable and may be made on direct appeal without the necessity of first filing a motion to modify the sentence pursuant to Pa.R.Crim.P. 720. “A legality issue is essentially a claim that the trial court did not have jurisdiction to impose the sentence that it handed down.” Commonwealth v. Cannon, 387 Pa. Super. 12, 29, 563 A.2d 918, 926-27 (1989), alloc. denied sub nom, Commonwealth v. Reap, 525 Pa. 597, 575 A.2d 564 (1990). “By ‘illegality of sentence’ is meant that the sentence is, in and of itself defective ....” Commonwealth v. Mathis, 317 Pa. Super. 362, 372, 464 A.2d 362, 368 (1983). A challenge to the trial court’s authority to impose restitution concerns the legality of the sentence. In the interest of M.W., 555 Pa. 505, 725 A.2d 729, 731 (1999). In contrast, challenges questioning whether the restitution order is excessive, implicate the discretionary aspect of sentencing and must be preceded by a motion to modify the sentence in order to preserve the issue for appeal. See Commonwealth v. Petaccio, 764 A.2d 582, 586 (Pa. Super. 2000) (challenges to the discretionary aspects of a sentence are waived when the issue has not been properly preserved at the sentencing hearing or in a motion to reconsider and modify the sentence).
      While Darling’s challenge to medical providers being named the recipients of restitution challenges the legality of the sentence, such challenge alleging, in effect, that there is no statutory basis for a sentence of restitution to persons other than the victim, Darling’s challenge to the amount of restitution determined by the court, and the sufficiency of the evidence to support this amount, appears to focus primarily on the discretionary aspects of sentencing for which no post-sentence motion was filed. Challenges to a defendant’s ability to make restitutionary payments, and to the amount of restitution ordered as speculative, are challenges to the discretionary aspects of the sentence. Commonwealth v. Mathis, 317 Pa. Super. 372, 464 A.2d 362 (1983). Such a challenge must be distinguished from a challenge to restitution for a loss which the defendant claims he did not cause, the latter also being a challenge to the legality of the sentence. Commonwealth v. Reed, 374 Pa. Super. 510, 543 A.2d 587 (1988) (order of restitution requiring a defendant convicted of receiving stolen property to make restitution for the total losses sustained in burglaries from which he received only some of the property stolen, challenged the legality of the sentence). Here, the order of restitution was clearly for the expenses of medical and hospital treatment the victim received for personal injuries caused by Darling’s conduct.

      . 75 Pa.C.S. §3714.

      . 18 Pa.C.S. §2504.

      . The total amounts ordered to be paid to St. Luke’s Hospital and St. Luke’s Trauma Care Associates are actually less than the amounts contained in the invoices, as is the amount to Code 3 Billing. Code 3 Billing is the billing agent for Penn Forest Ambulance as indicated by the billing address of Penn Forest Ambulance contained in the invoices and the address for Code 3 Billing appearing on the first page of the presentence investigation report. The actual amounts for which restitution was ordered by the court were based on the investigation and recommendations of the Adult Probation Office as to the expenses for which the victim had not been compensated. Since these amounts were not disputed by Darling, this reliance by the court did not violate the Superior Court’s holding in Commonwealth v. Kioske, 337 Pa. Super. 593, 487 A.2d 420 (1985) (trial court may not delegate to the county probation office the final determination as to any disputed amounts to be paid by defendant as restitution).

      . See Commonwealth v. Colon, 708 A.2d 1279 (Pa. Super. 1998) (discussing certain distinctions of language between restitution as worded under the Crimes Code and restitution under the Sentencing Code).
      “The proper term for the reimbursement for personal injuries is reparation, however, that term has been grouped together for purposes of sentencing with the word restitution.” Commonwealth v. Mathis, 317 Pa. Super, at 371 n.3, 464 A.2d at 368 n.3 (1983). “Restitution ordinarily refers to compensation for the wrongful taking of property, reparation, to compensation paid for injury or damage.” Commonwealth v. Fuqua, 267 Pa. Super. 504, 507 n.5, 407 A.2d 24, 25 n.5 (1979).

      . In reviewing a defendant’s ability to pay and whether a restitution order is excessive, a defendant may be required to make sacrifices. In Commonwealth v. Yanoff, 456 Pa. Super. 222, 235, 690 A.2d 260, 266-67 (1997), appeal denied, 548 Pa. 678, 699 A.2d 735 (1997), the Superior Court stated:

        “We have held that ‘[w]hile the payment of restitution may be a hardship for [an] appellant, the fact that a defendant may have to make substantial sacrifices is not an obstacle to a restitution order.’ Commonwealth v. Boyles, 407 Pa. Super. 343, 361, 595 A.2d 1180, 1189 (1991), alloc. denied, 531 Pa. 651, 613 A.2d 556 (1992). (citations omitted) In addition, ‘an order of restitution need not be in an amount which can be paid from a defendant’s current earnings.’ Id. (citing Commonwealth v. Madron, 339 Pa. Super. 105, 488 A.2d 331 (1985)). Furthermore, ‘an order of restitution may properly require additional or alternative employment, a reduction of expenses, and even a temporary change in lifestyle in order to achieve that sense of responsibility which signals effective rehabilitation.’ Commonwealth v. Wood, 300 Pa. Super. 463, 468, 446 A.2d 948, 950 (1982). We have reasoned that such an order of restitution will cause the defendant ‘to consider more carefully the consequences of his or her acts and thereby strengthen the offender’s sense of responsibility.’ Id.”

      . See Commonwealth v. Masip, 389 Pa. Super. 365, 374, 567 A.2d 331, 336 (1989). (citations omitted) (“A presentence report constitutes part of the record and speaks for itself. ... It is presumed to be valid and need not be supported by evidence unless and until it is challenged by the defendant.”)

      . This case is not controlled by Commonwealth v. Dinoia, 801 A.2d 1254 (Pa. Super. 2002). In Dinoia, the amount of restitution was left open at the time of sentencing and there was therefore no true order of restitution to modify or correct. Under these circumstances, the Superior Court held that the trial court was thereafter without jurisdiction to consider the Commonwealth’s restitution request. In contrast, at the time of Darling’s sentencing, a specific amount of restitution was set and provided Darling with certainty as to her sentence.

        If restitution remains unpaid, in addition to contempt proceedings mandated by 18 Pa.C.S. §1106(f), the amount of restitution when greater than $1,000 is required to be entered as a judgment in the prothonotary’s office and is to be collected by the county probation office in any manner provided by law and may, under certain conditions, be turned over to a private collection agency for collection. 42 Pa.C.S. §§9728, 9730, 9730.1.

      . At that time, if not considered waived and, if in dispute, the court will inquire further and determine for itself the full extent of the victim’s losses, including any information not available at the time of original sentencing, and the amounts the victim was compensated by either the victim’s or Darling’s insurance carrier and whether restitution is owed to any insurance carrier as a defined victim. Commonwealth v. Walker, 446 Pa. Super. 43, 62, 666 A.2d 301, 310-11 (1995), appeal denied, 545 Pa. 652, 680 A.2d 1161 (1996); 18 Pa.C.S. §1106(c).
      Modification to account for changes in circumstances is particularly appropriate in a case such as this where all of the victim’s losses and expenses were not available to the court at the time of sentencing, where civil litigation for personal injuries has neither been commenced nor concluded by the time of sentencing, but is anticipated, and where the defendant has liability coverage for which the insurance carrier may be contractually obligated to pay losses on behalf of the defendant which the defendant would otherwise be responsible for paying to the victim. Modification in this manner is consistent with proper rehabilitation of the defendant and fair compensation to the victim and is non-violative of the ex post facto clause.


author: HANCHER, J.,

text:
    Brough v. Township of Center

      C.P. of Butler County,
    no. 97-10301.

      Richard R Giardi, for plaintiffs.

      Lee A. Montgomery, for defendant Township of Center.

      Daniel C. Lawson, for defendant Weist Asphalt Products and Paving Inc.

      J. Elise Tourek, for defendant PennDOT.

      Michael D. Hnath, for defendant Olsen Engineering & Associates Inc.
    June 28, 2002
   HANCHER, J.,

The above captioned matter comes before this court on defendant Center Township’s motion for partial summary judgment. For the reasons set forth below, the motion is denied as to subparagraphs (h)-(k) as enumerated in paragraph 28 of the plaintiffs’ amended complaint. However, the motion is granted as to subparagraphs (c), (d), (e) and (m) as enumerated in paragraph 28 of the plaintiffs’ amended complaint.

I. FACTS AND PROCEDURAL HISTORY

This action involves a one-vehicle accident that occurred on Lions Road in Center Township, Butler County, Pennsylvania on July 18, 1996. The plaintiff-husband, John Brough Jr., suffered serious personal injuries, including the amputation of his left arm, from this accident.

Initially, plaintiff John Brough filed suit against Center Township, Weist Asphalt Products and Paving Inc., and PennDOT. After the initial pleadings and discovery were completed, the plaintiffs were granted leave of court to join Olsen Engineering and Associates Inc.

This court granted defendant PennDOT’s motion for summary judgment thereby dismissing PennDOT from the instant case.

II. STANDARD OF REVIEW

In reviewing defendant Center Township’s motion, the court is guided by the well-settled principle that summary judgment should only be granted in a case that is clear and free from doubt. Ducjai v. Dennis, 540 Pa. 103, 656 A.2d 102 (1995). Additionally, summary judgment may be granted when pleadings, depositions, answers to interrogatories, and admissions on file show that there is no genuine issue as to any material facts. Coleman v. Coleman, 444 Pa. Super. 196, 663 A.2d 741 (1995).

Finally, in ruling on a motion for summary judgment, the court must examine the record in a light most favorable to the non-moving party by accepting as true all well-pleaded facts in its pleadings, and giving that party the benefit of all reasonable inferences to be drawn therefrom. Kelly by Kelly v. Ickes, 427 Pa. Super. 542, 629 A.2d 1002 (1993).

III. MERITS OF THE ARGUMENT

The issue before this court is whether the allegations of negligence as set forth in plaintiffs’ amended complaint constitutes dangerous conditions of streets thereby falling within the streets exception to governmental immunity or the real property exception to governmental immunity. The specific allegations of negligence set forth in paragraph 28 of the plaintiffs’ amended complaint include:

“(c) failing to erect any barrier, railing, guard, or other similar devices for the protection of motorists from the dangerous condition;
“(d) failing to post warning signs in proper locations and at appropriate heights on Lions Road;
“(e) failing to post warning signs in the immediate area notifying motorists of the dangerous condition;
“(h) failing to design and construct a proper shoulder along the edge of Lions Road;
“(i) failing to construct and maintain a proper drainage system that would reduce and/or eliminate excess water from accumulating on the road surface;
“(j) negligently and recklessly constructing an asphalt wedge curb on the side of the roadway which caused water to accumulate on the surface of the road making the road surface extremely slippery, hazardous and unsafe for ordinary travel;
“(k) negligently constructing an asphalt wedge curb on the side of the roadway with a drop-off behind which caused vehicles to hang up on the top of the curb and lose control; and
“(m) failing to stripe Lions Road with double yellow centerlines and single white edge lines.” (Pi’s. am. compl., para. 28.)

The plaintiffs concede that subparagraphs (c), (d), (e) and (m) of paragraph 28 of the plaintiffs’ amended complaint do not fall within any of the exceptions to governmental immunity. (Pi’s. br. in opp’n to def. Center Township’s mot. for partial summ. j., pp. 7-8.) Therefore, this court will consider subparagraphs (h)-(k) of the plaintiffs’ amended complaint only when determining whether the streets exception or real property exception to governmental immunity applies in the present case.

Defendant Center Township moves for partial summary judgment arguing that the allegations of negligence set forth in subparagraphs (h)-(k) are not dangerous conditions of streets; therefore, they do not fall within the streets exception to governmental immunity. The plaintiffs, on the other hand, maintain that subparagraphs (h)-(k) are dangerous conditions of streets and fall within the streets exception to governmental immunity. In the alternative, the plaintiffs argue that any alleged defect not considered part of Lions Road for purposes of applying the streets exception would by definition fall under the “care, custody and control of real property” exception to governmental immunity. Because this court finds that the street exception to governmental immunity is controlling in this case, the real property exception, by definition, cannot apply. Therefore, this court will discuss solely the street exception to governmental immunity as outlined in our opinion below.

A. Political Subdivision Tort Claims Act

Section 8541 of the Political Subdivision Tort Claims Act states that, “[ejxcept as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa.C.S. §8541. Section 8542 of the PSTCA lists the exceptions to the general rule of governmental immunity. 42 Pa.C.S. §8542.

In order for a local agency to be liable for damages on account of an injury to a person or property, two conditions must be satisfied: (1) the damages must be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense of governmental or official immunity; and (2) the injury must be caused by the negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). 42 Pa.C.S. §8542(a)(l), (2). Among the categories listed in subsection (b) is the streets exception to governmental immunity. 42 Pa.C.S. §8542(b)(3), (6).

The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:

“(6) Streets.—
“(i) A dangerous condition of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.” 42 Pa.C.S. §8542 (b)(6)(i). The eight exceptions to governmental immunity must be construed strictly and narrowly. Tyree v. City of Pittsburgh, 669 A.2d 487 (Pa. Commw. 1995).

This court finds that, for the purposes of this argument, the two conditions as set forth in sections 8542(a) (1) and 8542(a)(2) have been satisfied. First, the damages sought in this case are recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense of governmental or official immunity. Second, a genuine issue of material fact exists as to whether the injury in this case was caused by the alleged negligent acts of the local agency or an employee thereof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b), in particular, the streets exception. Sufficient evidence exists in which a jury may find that the injury in this case was caused by the negligent acts of Center Township or an employee of Center Township acting within the scope of his office or duties with respect to the streets exception.

B. Streets Exception

In the present case, this court finds that the streets exception to governmental immunity is applicable to sub-paragraphs (h)-(k). The PSTCA does not define the term “street,” see 42 Pa.C.S. §8501, and this court was hard-pressed to find case law that specifically defines the term “street” as it applies to the PSTCA. Therefore, because neither the statute nor case law interpreting the same defines the term “street,” this court must use the plain and ordinary meaning of the term “street.” Commonwealth v. Ortiz, 802 A.2d 617, 619 (Pa. Super. 2002), citing Heard v. Heard, 418 Pa. Super. 250, 614 A.2d 255 (1992) (citing 1 Pa.C.S. § 1903(a)). Webster’s Dictionary defines the term “street” as “a public thoroughfare esp. in a city, town, or village including all area within the right of way (as sidewalks and tree belts)....” Webster’s Third New International Dictionary of the English Language Unabridged 2259 (1993). Because a shoulder, curb and drainage system are ordinarily a part of the “area within the right of way,” this court finds that the shoulder, curb and drainage system along the side of the roadway are part of the “street” for the purpose of applying the streets exception.

In order to impose liability pursuant to the streets exception,

“[T]he claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.” 42 Pa.C.S. §8542(b)(6)(i).

“Under the streets exception [to governmental immunity,] conditions of city-owned streets must not only be dangerous, but the type of injury caused by that dangerous condition must be reasonably foreseeable.” Campbell v. PennDOT, 105 Pa. Commw. 494, 498, 524 A.2d 1066, 1068 (1987). In addition, “the dangerous condition . . . must arise from the real estate, street, or sidewalk rather than from something that has fallen onto the real estate, street, or sidewalk.” Osborne v. Cambridge Township, 736 A.2d 715, 724 (Pa. Commw. 1999).

After finding that the streets exception to governmental immunity applies in this case, this court now will address whether a genuine issue of material fact exists for the fact-finder in determining: (1) whether a dangerous condition was present; (2) whether the type of injury caused by that dangerous condition was reasonably foreseeable; and (3) whether the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. The plaintiffs contend that there is sufficient evidence for the plaintiffs to proceed to trial on the issue of whether Center Township was negligent in its design, construction, or maintenance of Lions Road, with specific regard to the raised asphalt curbing, the lack of adequate drainage, and the shoulder. We agree.

In support of their position that a dangerous condition existed, the plaintiffs rely on deposition testimony by a representative of Wooster Engineering revealing that this asphalt curbing “was a dangerous condition.” (Olsen depo., p. 30,11. 16-19.) In addition, a Center Township engineer recognized that Wooster Engineering found the asphalt curbing to be a dangerous condition on Lions Road. On the other hand, defendant Center Township argues that the allegations of negligence set forth in sub-paragraphs (h)-(k) are not dangerous condition of streets. The question of whether a dangerous condition exists on the roadway is for the jury. Dean v. PennDOT, 561 Pa. 503, 751 A.2d 1130 (2000).

In support of their position that the type of injury caused by the dangerous condition was reasonably foreseeable, the plaintiffs provided evidence of 26 auto accidents on Lions Road at the same location where plaintiff John Brough’s accident occurred. To the contrary, defendant Center Township claims that the shoulder on the edge of a roadway, a drainage system, and an asphalt wedge curb on the side of the roadway were not intended to be driven upon in lieu of driving on the roadway surface. Therefore, this type of injury was not foreseeable. In fact, Center Township asserts that the presence of these items may have served to minimize plaintiff John Brough’s injuries. Furthermore, defendant Center Township argues that a substantial factor in causing plaintiff John Brough’s accident was the negligence of the plaintiff himself. Questions of foreseeability are for the jury. Wyke v. Ward, 81 Pa. Commw. 392, 474 A.2d 375 (1984).

Finally, in support of their position that Center Township had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to plaintiff John Brough’s accident to have taken measures to protect against the dangerous condition, the plaintiffs rely on evidence of 26 prior auto accidents on Lions Road at the same location where plaintiff John Brough’s accident occurred.

Because reasonable minds could differ as to whether a dangerous condition existed, whether the type of injury caused by the dangerous condition was reasonably foreseeable, and whether Center Township had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to plaintiff John Brough’s accident to have taken measures to protect against the dangerous condition, defendant Center Township’s motion for partial summary judgment as to subparagraphs (h)-(k) of the plaintiffs’ amended complaint must be denied.

Accordingly, we enter the following:

ORDER

And now, June 28, 2002, in accordance with the foregoing memorandum opinion, it is hereby ordered, adjudged, and decreed that defendant Center Township’s motion for partial summary judgment as to subparagraphs (h)-(k) of the plaintiffs’ amended complaint is denied because a genuine issue of material fact exists as to whether a dangerous condition existed, whether the type of injury caused by that dangerous condition was reasonably foreseeable, and whether the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition. However, defendant Center Township’s motion for partial summary judgment as to subparagraphs (c), (d), (e) and (m) of the plaintiffs’ amended complaint is granted.


author: MOTTO, J.,

text:
    Commonwealth ex rel. Mangino v. Stafford
    C.P. of Lawrence County,
    no. 70122 of 2001, M.D.

      Matthew T. Mangino, for plaintiff.

      Larry Puntureri, for defendant.
    April 18, 2002
   MOTTO, J.,

Before the court is a motion for judgment on the pleadings filed by the Lawrence County district attorney emanating from his underlying complaint in quo warranto. The complaint in quo warranto seeks to remove Herman Francis Stafford from the position to which he was newly elected, Perry Township supervisor as per Article II, Section 7 of the Pennsylvania Constitution.

The undisputed facts are as follows:

(1) On May 8, 1980, defendant Herman Francis Stafford was convicted of statutory rape, a felony of the second degree, which had been alleged as occurring on or about September 22, 1979.

(2) On November 6, 2001, defendant Herman Francis Stafford was elected supervisor of Perry Township.

(3) Defendant Herman Francis Stafford assumed that office the following January.

Article II, Section 7 of the Pennsylvania Constitution is as follows:

“No person hereafter convicted of embezzlement of public monies, bribery, perjury or other infamous crimes, shall be eligible to the General Assembly, or capable of holding any office of trust or profit in this Commonwealth.” (emphasis added)

It has been stipulated by both parties that the position of Perry Township supervisor is an “office of trust... in this Commonwealth” as per Article II, Section 7 of the Pennsylvania Constitution. As statutory rape is not bribery, perjury or embezzlement of public monies, the question that remains is whether statutory rape falls within the category of “other infamous crimes.” The foregoing material facts have been admitted in the pleadings, and are determinative of the case, therefore, judgment on the pleading is appropriate. Municipality of Mt. Lebanon v. Reliance Insurance Co., 778 A.2d 1228 (Pa. Super. 2001).

In order to maintain this action in quo warranto, the Commonwealth must establish three elements, to-wit: “(1) that the person sought to be ousted from office has been convicted of a crime; (2) that the crime committed constitutes an infamous crime; and (3) that the person holds an office of public trust.” Pa. Const., Article II, Section 7; Commonwealth ex rel. Baldwin v. Richard, 561 Pa. 489, 751 A.2d 647 (2000).

Since there are no cases specifically holding statutory rape to be an “infamous crime,” the court must come to a determination through analysis of decisional law that does exist. There exist two county court decisions that address the issue of what constitutes an infamous crime. An Adams County decision noted: “There are two methods of determining whether a crime is infamous at common law.” In re Holly Sanders Millhimes, 18 D.&C.4th 667, 669 (Adams Cty. 1992). “The first, and the more modem, concerns itself primarily with the punishment which may be imposed and, generally speaking, the line of demarcation occurs when the offense is punishable by incarceration in a state penitentiary.” Id. “The second, and more ancient approach concentrates upon the nature of character of the underlying conduct and its affect upon the future credibility of the culprit rather than the punishment.” Id. at 669-70. As to those two methods, the trial court in Millhimes stated, “Pennsylvania appears to follow the latter approach.” Id. at 670. However, another trial court used the former method and held, “all felonies, all first-degree misdemeanors ... are now infamous crimes.” Commonwealth ex rel. Baldwin v. Smolkowicz, 17 D.&C.4th 518, 520 (Berks Cty. 1993).

As both of those cases were decided by courts with jurisdictions equal to this court, even in the absence of other authority, this court would not be obligated to follow either case. However, if we were to follow the rule that it is the gradation of the offense that governs, we would have to hold for the petitioning district attorney, but if were to follow the rule that the influence of the offense upon the person’s credibility governs, respondent’s conviction would not be per se dispositive.

This court finds that specific and unambiguous direction as to what constitutes an infamous crime has been handed down by the Pennsylvania Supreme Court which has held “that it is the... classification referring to infamous crimes as felonies and crimen falsi offenses . . . which has been followed ... in this Commonwealth.” Commonwealth ex rel. Baldwin v. Richard, 561 Pa. 489, 499, 751 A.2d 647, 652-53 (2000). The court went on, “we reaffirm that a crime is infamous for purposes of Article II, Section 7, if its underlying facts establish a felony, a crimen falsi offense, or a like offense involving the charge of falsehood that affects the public administration of justice.” Id.

Since the conviction herein of statutory rape is a felony, by this standard, the respondent has been convicted of an infamous crime. With the foregoing holding of the Pennsylvania Supreme Court laying down a clear rule and with that rule being binding precedent on this court, we are obligated to find that the defendant, Herman Francis Stafford, is precluded from holding the office of Perry Township supervisor.

The defendant has attempted to distinguish the Supreme Court’s decision in Baldwin on the basis that Baldwin addressed a conviction for a misdemeanor offense, finding that the conviction did not render that public official ineligible for office. However, that factual difference does not change the clear and unambiguous holding of the Pennsylvania Supreme Court that conviction of an offense that constitutes a felony is a conviction of an infamous crime. The court is duty bound to apply that precedent.

ORDER

And now, April 18, 2002, after argument on the motion of the Commonwealth for judgment on the pleadings and after review of the briefs of the parties, it is ordered, adjudged and decreed in accordance with the accompanying opinion of even date herewith, that judgment on the pleadings is entered in favor of the plaintiff, and against the defendant, Herman Francis Stafford, and the said Herman Francis Stafford is hereby ousted from the office of Perry Township supervisor, and is excluded from holding such office, and it is further ordered, adjudged and decreed that the office of Perry Township supervisor to which the defendant was elected is declared vacant. This order is effective immediately. Costs are assessed against the defendant.


author: ABRAMSON, J.,

text:
    Partlow v. American Red Cross

      C.P. of Philadelphia County,
    August Term 2000,
    no. 629.

      Larry Pitt and George D. Walker, for plaintiff.

      Richard Lee Strouse, for defendant.
    April 8, 2002
   ABRAMSON, J.,

I. FACTS AND PROCEDURAL HISTORY

Plaintiff-appellant filed a complaint alleging wrongful discharge, violation of the Pennsylvania Human Relations Act, and violation of the Philadelphia Fair Practices Ordinance. Defendant-appellee timely filed preliminary objections to plaintiff’s complaint requesting, inter alia, that the court dismiss plaintiff’s claim for wrongful discharge (Count III). Plaintiff’s cause of action for wrongful discharge was based upon disability discrimination for a physical disability he incurred through a work-related injury. On March 21, 2002, the court sustained defendant’s preliminary objections and dismissed the wrongful discharge count of plaintiff’s complaint for failure to state a claim upon which relief could be granted. Plaintiff appeals that order today.

II. DISCUSSION

A. Standard of Review

On review of a trial court’s order sustaining preliminary objections for failure to state a claim upon which relief may be granted, an appellate court applies the same standard applied by the trial court that all material facts set forth in the complaint and all reasonable inferences are admitted as true for the purposes of review. Juban v. Schermer, 751 A.2d 1190, 1192 (Pa. Super. 2000). On review of a demurrer, the Superior Court must reverse “if any doubt exists as to whether a demurrer should be sustained.” Wiernik v. PHH U.S. Mortgage Corp., 736 A.2d 616, 619 (Pa. Super. 1999).

B. Wrongful Discharge Under Shick v. Shirey

Defendant argued that the claim is preempted by the Pennsylvania Human Relations Act. This court agreed.

Plaintiff argued that his wrongful discharge claim was based on a separate and distinct cause of action from his claim under PHRA, as delineated by Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231 (1998).

As a general rule, Pennsylvania recognizes no common-law cause of action against an employer for termination of an at-will employment relationship. Clay v. Advanced Computer Applications, 522 Pa. 86, 559 A.2d 917 (1989). “An exception to this rule has been recognized in the most limited of circumstances, where the discharge of an at-will employee would threaten clear mandates of public policy.” Kroen v. Bedway Security Agency Inc., 430 Pa. Super. 83, 92, 633 A.2d 628, 632 (1993). Such public policy can be established only when “the employee . . . point[s] to a clear public policy articulated in the constitution, in legislation, an administrative regulation, or a judicial decision.” Hunger v. Grand Central Sanitation, 447 Pa. Super. 575, 580, 670 A.2d 173, 175 (1996). That policy, moreover, “must be applicable directly to the employee and the employee’s actions. It is not sufficient that the employer’s actions toward the employee are unfair.” Hunger, 447 Pa. Super, at 580-81, 670 A.2d at 175-76. Additionally, all claims are preempted by the statutory remedies under the Pennsylvania Human Relations Acts and must be pursued through the Human Relations Commissions first. Jacques v. Akzo International Salt Inc., 422 Pa. Super. 419, 619 A.2d 748 (1993); McDaniel, 58 F. Supp.2d 628.

Recognized public policy exceptions include: (1) discharge for filing an unemployment compensation claim, Highhouse v. Avery Transportation, 443 Pa. Super. 120, 660 A.2d 1374 (1995), Shick, 552 Pa. 590; (2) discharge for refusal to submit to a polygraph test, Kroen, 430 Pa. Super. 83, 633 A.2d 628 (1993); (3) discharge for serving on a jury, Reuther v. Fowler & Williams Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978); and (4) discharge based upon performance of a statutory duty to report violations involving nuclear materials, Field v. Philadelphia Electric Co., 388 Pa. Super. 400, 565 A.2d 1170 (1989). Rejected public policy exceptions include: (1) failure to reappoint employee because of employee inability to prevent her husband from speaking out on public issues, Burkholder v. Hutchinson, 403 Pa. Super. 498, 589 A.2d 721 (1991); (2) manager failing to report sexual harassment when asked by employee not to report, McDaniel, 58 F. Supp.2d 628; and (3) retaliation for filing workers’ compensation claim where plaintiff admitted she was not fired but removed herself, Wilcha v. First National Bank of Jermyn, 25 D.&C.4th 47 (1995).

For purposes of examination of preliminary objections in the nature of a demurrer, the court must accept as true all pleaded facts. Juban, 751 A.2d at 1192. As contained within the complaint, plaintiff’s cause of action for wrongful discharge was based on discrimination for physical disability that he incurred through a work-related injury. Due to the injury, plaintiff was out of work for 15 days. When he returned, he was placed on light duty. Plaintiff was unable to receive medical treatment for his work injuries due to pre-existing hypertension. Sometime thereafter, plaintiff was released to return to his pre-injury job contingent upon permission from his primary care physician. Plaintiff informed his employer that he had been released to return to work by the employer’s workers’ compensation physician subject to a medical release from his primary care physician who was treating his hypertension. On March 10,1999, plaintiff was terminated for failure to notify the employer of his inability to return to work.

Upon examination of these facts contained in the complaint, the court concluded that plaintiff’s grievance did not fall into any of the limited exceptions carved out for public policy concerns. All pertinent cases considered together, the public policy exceptions are all based upon employer disallowance of employees to perform duties or exercise rights inured to them under statutes. Here, there is no statutory right or duty upon which plaintiff alleges to have been precluded from exercising. The proper cause of action in this case is violation of the PHRA. Plaintiff’s complaint, Count I, included such a cause of action. Plaintiff cites Shick, 552 Pa. 590, 716 A.2d 1231, which held that a cause of action could be maintained for wrongful discharge where the employee was discharged for filing a workers’ compensation claim. That case is readily distinguishable from the case here. The right to file a workers’ compensation claim is a right promulgated by statute and the right conferred (to file a workers’ compensation claim) is outside of the PHRA. Therefore, the cause of action for wrongful discrimination is preempted by the statutory remedies procured by the PHRA.

In conclusion, this court properly sustained defendant’s preliminary objections and properly dismissed plaintiff’s cause of action for wrongful discharge for failure to state a claim upon which relief may be granted where there is no recognized public policy exception to the “at-will” employment doctrine for disability discrimination.


author: IOLE, Member,

text:
    In re Anonymous No. 61 D.B. 86
    Disciplinary Board Docket no. 61 D.B. 1986.
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

January 18, 2002

IOLE, Member,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

Petitioner, [ ], filed a petition for reinstatement to the bar of Pennsylvania on September 13, 2000. Petitioner was disbarred on consent by order of the Supreme Court of Pennsylvania on September 25, 1986.

A reinstatement hearing was held on March 2, 2001, before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Petitioner was represented by [ ], Esquire. Office of Disciplinary Counsel was represented by [ ], Esquire.

The committee filed a report on May 3,2001, and recommended that the petition for reinstatement be granted.

No briefs on exceptions were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of July 24, 2001.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner was bom in 1944 and was admitted to the practice of law in Pennsylvania in 1974. He resides at [ ].

(2) Petitioner was disbarred on consent in 1986 after he misappropriated $31,700 from the Estate of [A].

(3) In August of 1982, petitioner was retained to represent the estate of [A] in order to establish trusts and probate the will. Over the next three years, petitioner failed to properly represent the estate, complete necessary estate documents, complete inheritance tax returns, advise beneficiaries under the will and trust, and perform other essential and necessary functions as counsel for the estate.

(4) From September 1982 until March 1985, petitioner misappropriated approximately $31,700 from the estate. Petitioner was later subjected to a surcharge of his legal fees of $6,455.56.

(5) As a result of allegations of [B] on behalf of the estate, Office of Disciplinary Counsel forwarded a DB-7 letter to petitioner on January 17, 1986.

(6) As a result of this letter, petitioner voluntarily resigned his license to practice law.

(7) Petitioner has reimbursed the estate as well as paid all associated expenses.

(8) During the period of the misconduct, petitioner was an alcoholic.

(9) Petitioner began his recovery from alcoholism in November 1984 with his admission to [ ] Hospital emergency room. After his discharge, he was admitted to [ ] Rehabilitation Center inpatient program and was given a regular discharge from treatment on January 2, 1985.

(10) Petitioner is sober and does not drink any alcohol. He has sought professional counseling for his problems and has attended AA meetings.

(11) From 1986 to 2001 petitioner was employed in a variety of jobs. These included management consulting, clerk cashier positions, automobile leasing, business/financial administration, and sales representative for a communications company. Most recently he has been a paralegal for Attorney [C].

(12) Although petitioner worked for attorneys during his period of disbarment, petitioner did not practice law. Petitioner completed forms, investigated cases and proofread summaries of business data.

(13) In Í995, petitioner started to take active steps towards reinstatement. Petitioner attended various CLE courses and became more actively engaged in work with Attorney [C].

(14) From August 1995 through April 2000, petitioner accumulated approximately 100 hours of CLE credits.

(15) Petitioner reviewed the [ ] Legal Journal, Pennsylvania Imw Weekly and advance sheets to keep current with the law.

(16) [D], a certified public accountant, has known petitioner since 1992 and has worked with him on different projects preparing financial statements and taxes. He testified that petitioner is very competent and diligent. He further testified that, in his opinion, petitioner is an honest person to whom he would refer other individuals for legal representation.

(17) Attorney [E] has known petitioner since law school. He testified that he has a high opinion of petitioner’s honesty. He does not believe that petitioner will present a danger to the public if reinstated to the practice of law.

(18) Attorney [C] has known petitioner since law school. He hired petitioner as a controller. He testified that petitioner performed his job duties in an exemplary fashion and he would feel comfortable referring clients to petitioner.

(19) If reinstated, petitioner plans to continue his work with Attorney [C].

(20) Petitioner expressed sincere remorse for his misconduct.

III. CONCLUSIONS OF LAW

(1) The misconduct for which petitioner was disbarred is not so egregious as to preclude immediate consideration of his petition for reinstatement.

(2) Petitioner has demonstrated, with clear and convincing evidence, that he possesses the moral qualifications, competency and learning in the law necessary to practice law in the Commonwealth of Pennsylvania.

(3) Petitioner’s resumption of the practice of law will not be detrimental to the integrity of the bar nor subversive of the interests of the public.

' IV. DISCUSSION

Petitioner’s réquest for reinstatement to the bar of Pennsylvania after disbarment is initially governed by the standard set forth by the Supreme Court of Pennsylvania in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). The Keller opinion articulates a threshold inquiry which must be met before the requirements of Pa.R.D.E. 218(c)(3)(i) are considered. This threshold inquiry is whether the magnitude of the breach of trust would permit the resumption of practice without a detrimental effect upon the integrity and standing of the bar or the administration of justice nor be subversive of the public interest. Keller thus requires a determination that the original misconduct was not so offensive as to preclude reinstatement.

Petitioner was disbarred on consent for misappropriating approximately $31,700 from an estate during the time frame from September 1982 until March 1985. While misuse of funds is very serious misconduct and frequently forms the basis for disbarment, such misconduct does not necessarily preclude reinstatement. Under some circumstances, the Supreme Court has allowed reinstatement of disbarred attorneys for such misconduct. E.g., In re Anonymous No. 67 D.B. 81, 13 D.&C.4th 652 (1991); see also, In re Greenberg, 561 Pa. 154, 749 A.2d 434 (2000). Thus, while petitioner’s misconduct was certainly repugnant to the public trust, in the board’s view it does not forever prohibit his reinstatement.

The board must next determine whether petitioner met his burden of proving by clear and convincing evidence that he has the moral qualifications, competency and learning in the law required for admission to practice law in Pennsylvania, and that his current resumption of the practice of law would not have a detrimental impact on the integrity and standing of the bar, the administration of justice, or the public interest. Pa.R.D.E. 218(c) (3)(i). In order to make this determination, the board must consider the amount of time that.has passed since petitioner was disbarred, as well as his efforts at rehabilitation.

Petitioner was disbarred on September 25, 1986. He has been without a license to practice law for more than 14 years. The record demonstrates that during this time frame he actively worked to rehabilitate himself, both in his personal life and in his professional life. Petitioner accepted the fact that he was an alcoholic and sought treatment for that disease. He remains active in Alcoholics Anonymous and is sober. Petitioner made full restitution to the estate of [A]. He also made reimbursement payments to the Pennsylvania Lawyers Fund for Client Security, which had made an award in favor of the estate in September 1993. Petitioner expressed sincere remorse. He stated in his petition for reinstatement that rarely a day has passed during his disbarment that he did not think with pain of the circumstances leading to his disbarment.

Petitioner fulfilled his CLE credit requirements and kept apprised of the law by reading advance sheets, the Pennsylvania Law Weekly and the [ ] Legal Journal. During his disbarment, he worked in various capacities as a paralegal, sales representative, and management consultant. If reinstated, he plans to practice on a limited basis with Attorney [C], who was instrumental in petitioner’s employment during his disbarment.

Considering all of the above facts, the board is persuaded that petitioner has demonstrated that he has engaged in a qualitative period of rehabilitation during his disbarment. In the board’s view, petitioner has met his burden pursuant to Pa.R.D.E. 218(c)(3)(i) and has shown that he is prepared to accept his responsibility to practice law in an ethical manner.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, [ ], be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Member Morris did not participate in the disposition of this matter.

Board Members Schultz and Sheerer did not participate in the July 24, 2001 adjudication.

ORDER

And now, March 11, 2002, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated January 18, 2002, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


text:
    Keelan v. Dannenberg
    C.P. of Monroe County,
    no. 6134 Civil 2000.

      James V. Fareri, for plaintiffs.

      Paul G. Lees, for defendant.
    December 10, 2001
   O’BRIEN,/.,

The plaintiffs have filed a complaint seeking economic and noneconomic damages resulting from personal injuries sustained by the plaintiff husband in an automobile accident on October 17, 1998, in Smithfield Township, Monroe County, Pennsylvania. In his responsive pleading, the defendant alleges in “new matter” that the plaintiffs’ right of recovery was limited by their election of “limited tort” liability coverage. The defendant has now filed a motion for summary judgment challenging the right of plaintiff husband from claiming noneconomic damages. The motion is premised on the allegation that Joseph Keelan is bound by his election of “limited tort” liability coverage and the fact that he did not suffer a “serious injury” in the accident. While the plaintiffs admit that they selected the “limited tort” liability coverage, they dispute the allegation that plaintiff husband did not suffer a “serious injury.” Following the submission of briefs and oral argument, defendant’s motion for summary judgment with respect to the noneconomic claims of plaintiff Joseph Keelan is now before the court for disposition.

In 1990, the Pennsylvania Legislature amended the Motor Vehicle Financial Responsibility Law in an effort to reduce the spiraling cost of automobile insurance in the Commonwealth. This amendment provided that if a consumer affirmatively elects the limited tort option for liability coverage, they are barred from recovering damages for noneconomic harm unless they sustain a “serious injury.” In exchange for this election, they receive a significant reduction in the premium paid to the insurance carrier for their liability coverage. The section of that statute pertinent to the dispute in the case at bar provides as follows:

“(d) Limited tort alternative. — Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss . . . .” 75 Pa.C.S. §1705. (emphasis added)

“ ‘Serious injury.’ A personal injury resulting in death, serious impairment of bodily function or permanent serious disfigurement.” 75 Pa.C.S. §1702.

In the case at bar it is undisputed that plaintiff husband’s injuries did not result in death or permanent serious disfigurement. The issue in dispute is whether or not his injuries resulted in “serious impairment of bodily function.”

In Washington v. Baxter, 553 Pa. 434, 719 A.2d 733, 740 (1998), our Supreme Court adopted the following standard for determining whether a “serious impairment of bodily function” has occurred:

“The ‘serious impairment of body function’ threshold contains two inquiries:
“(a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
“(b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment. ... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.”

The court also held that the traditional summary judgment standard was to be followed by trial courts with respect to the issue presented in the case at bar.

A motion for summary judgment is only proper in those cases where the pleadings, depositions, answers to interrogatories, and admissions on file, along with the affidavits and all other matters filed on the record, demonstrate that there is no genuine issue of material fact, and that as a result the moving party is entitled to a judgment as a matter of law. Grossman v. Rosen, 424 Pa. Super. 463, 623 A.2d 1 (1993); Frederick v. Action Tire Co., 744 A.2d 762 (Pa. Super. 1999); Weiner v. American Honda Motor Co., 718 A.2d 305 (Pa. Super. 1998). In deciding whether summary judgment is warranted and proper, the court must construe the facts on the record in a light that is most favorable to the non-moving party. The court must also resolve all doubts and reasonable inferences as to the existence of a genuine issue of material fact in favor of the non-moving party. Frederick, supra; Telega v. Security Bureau Inc., 719 A.2d 372 (Pa. Super. 1998); Kaller’s Inc. v. John J. Spencer Roofing Inc., 388 Pa. Super. 361, 565 A.2d 794 (1989).

The evidentiary record submitted by the parties with respect to the pending motion includes a discovery deposition of the plaintiff; a videotaped deposition of the plaintiff to preserve his testimony in view of his recent diagnosis of cancer; the office and operative notes of Joseph M. Lane M.D., an orthopedic surgeon. This record discloses that long prior to the accident in question, plaintiff husband had a hinged prosthesis replacement for his knee. Following the accident, he complained to the investigating officer, inter alia, that his leg hurt. On October 24, 1998, one week following the accident, he visited with his orthopedic surgeon in New York City. He advised the doctor that his knee had become “unsteady.” On January 28,1999, the orthopedic surgeon performed surgery under general anesthesia, and the surgical note includes the following:

“He was doing well with that controlled program until his car, a Cadillac was totalled and he had a severe varus valgus strain placed across the knee and he ruptured, in part, the plastic and it became very unstable on varus valgus manipulation. In light of these findings, it was elected to revise the plastics. We had offered to take out the joint and do a temporary removal, treat with antibiotics and then revise the whole prosthesis but he opted not to do that and wanted a suppressive program and just change the plastics. With this understood and our goals more limited, we proceeded.

“With the patient under anesthesia, his left leg was prepped and draped in a routine manner. It was elevated and exsanguinated by gravity and a tourniquet was applied without squeezing the leg. A lateral incision was carried down through the skin and subcutaneous tissue down to the prosthesis where the fluid appeared to be yellow and clear. It was taken for cultures.

“The knee was examined and it was clearly unstable on varus and valgus straining. With careful dissection, one could remove the prosthesis from the bed and examine the prosthesis directly where it was clear that the bar had buried into the medial bushing and had a significant defect as well as the anterior bumper had been deformed. Therefore, the prosthesis was disarticulated.”

The plaintiff also testified that he used crutches or a cane for several weeks and that his knee, “is not exactly the same as it was prior to the accident.” (N/T 33; exhibit “E.”) It is a fundamental principle of tort law that a tort-feasor takes his victim as he finds him. While the automobile accident in this case may not have produced a “serious impairment of bodily function,” in the average person, the result is different in a victim with a hinged prosthesis. In Washington v Baxter, supra, 719 A.2d at 740, our Supreme Court held that whether dr not a plaintiff has sustained the serious impairment of bodily function is to be determined by a jury “unless reasonable minds could not differ on the issue of whether a serious injury had been sustained.” (footnote omitted) In this case, we conclude that reasonable minds could differ with respect to that issue. Therefore, we must deny the defendant’s motion.

ORDER

And now, December 10, 2001, the motion of defendant Ronald D. Dannenberg for summary judgment is denied.