author: PICCIONE, J.,

text:
    Commonwealth v. Evans

      C.P. of Lawrence County,
    No. 968 of 2014, C.R.

      William J. Flannery, for Commonwealth.

      Aaron M. Cangey, for defendant.
    Feb. 20, 2015
   PICCIONE, J.,

Before the court for disposition is the omnibus pretrial motion (hereinafter, the “motion”) filed onbehalf ofthe defendant, Duane Germaine Evans (hereinafter, the “defendant”). Pursuant to the information filed on November 26, 2014, the defendant is charged with fleeing or attempting to elude pursuant to 75 Pa. C.S.A., § 3733(a), flight to avoid apprehension pursuant to 18 Pa. C.S.A. § 5126(a), reckless driving pursuant to 75 Pa. C.S.A. § 3736(a), careless driving pursuant to 75 Pa. C.S.A. § 3714(a), possession of a controlled substance pursuant to 35 P.S. § 780-116(a)(16), possession with the intent to deliver a controlled substance pursuant to 35 P.S. § 780-116(a)(30), and possession of drug paraphernalia pursuant to 35 P.S. § 780-116(a)(32).

The above-listed charges arise from events alleged to have occurred on June 18, 2014. On that date, at approximately midnight, officer Ronald Piche (hereinafter, “Officer Piche”) of the City of New Castle Police Department was on duty and traveling in a marked police cruiser on McClelland Avenue toward Booker Drive in the City of New Castle, Lawrence County, Pennsylvania. As he was approaching Booker Drive, Officer Piche observed a silver Chevrolet Malibu as it made a left turn onto McClelland Avenue from Booker Drive. Officer Piche’s cruiser was facing the front of the silver Chevrolet Malibu, approximately five to ten feet away, and he observed the defendant operating the vehicle. Officer Piche recalled that it was a clear evening, without precipitation, and he did not see any other individual in the vehicle at that time. Officer Piche recognized the defendant driving the vehicle because approximately two days prior, narcotics detective Richard Ryhal had advised Officer Piche that the District Attorney’s Office of Lawrence County had issued an arrest warrant for the defendant for felony drug related charges and that the defendant had been advised of the charges and failed to turn himself in. As a result, upon observing the defendant, Officer Piche turned his vehicle around and activated the emergency lights and sirens on the police cruiser. The defendant continued onto McClelland Avenue toward West State Street. The defendant came to a stop sign, stopped, and made a left turn onto West State Street and accelerated the vehicle to a high rate of speed. Officer Piche continued to pursue the defendant and notified the dispatch center of the situation.

The defendant eventually stopped the vehicle on West North Street, and three individuals exited the vehicle and ran in the direction of the Westview Terrace apartment complex. Officer Piche believed that the defendant was among the three who ran, so he exited the cruiser and began to chase the individuals. Officer Piche then saw that the defendant remained inside the vehicle. While Officer Piche was outside the cruiser, the defendant drove away at a high rate of speed. Officer Piche had already identified the defendant so he did not chase him any further.

The defendant was eventually apprehended. The vehicle was located one to two days after the above-described incident and was towed to the vehicle garage at the New Castle police station. Officer Piche learned that the vehicle was a rental vehicle, which was not rented by the defendant. An inventory search was performed on the vehicle, and the defendant’s Pennsylvania photo identification card was located. Officer Piche learned from the dispatch center that the defendant’s driver’s license was under suspension for a DUI related offense. Approximately thirty minutes after Officer Piche first observed the defendant, Ms. Margo Jackson reported that the Chevrolet Malibu that she rented was stolen. Officer Piche called Ms. Jackson, who informed Officer Piche that she and the defendant are friends.

The following day, an individual from the rental company, enterprise, arrived at the police station to pick up the vehicle. Prior to releasing the vehicle, Officer Branddon Hallowich (hereinafter, “Officer Hallowich”), also of the City of New Castle Police Department, conducted a search of the vehicle. The search produced a clear plastic baggie, which was above the driver’s seat visor in the headliner. Corporal Fred Buswell conducted a NIK test on the substance inside the plastic baggie, which tested positive for the presence of cocaine. The crack cocaine was subsequently weighed to be 0.7 grams. Additionally, the police were only able to apprehend two of the three other occupants of the vehicle. One occupant of the vehicle was a juvenile. When he was apprehended, approximately one thousand dollars was located on his person.

As a result of these events, the defendant was charged with the above-listed offenses. On October 1, 2014, the defendant’s preliminary hearing was held before Magisterial District Judge Melissa A. Amodie, the testimony of which is set forth above. The defendant filed the instant motion on November 20,2014, and on January 7, 2015, the court held a hearing on the omnibus pretrial motion. In the motion to suppress evidence, the defendant argues that his constitutional right to privacy was violated when the vehicle was seized and searched without a warrant and all evidence obtained as a result of the search should be suppressed. In the petition for writ of habeas corpus, the defendant argues that the Commonwealth has failed its burden to produce the requisite evidence to establish a prima facie case for the charges against the defendant and requests this court dismiss all charges as a result. The court will address each matter seriatim.

I. Motion to Suppress Evidence

Where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Comm. v. Lindblom, 854 A.2d 604, 605 (Pa. Super. 2004). At the conclusion of the hearing, the suppression court judge shall enter findings of fact and conclusions of law as to whether the evidence was lawfully obtained. Pennsylvania Rules of Criminal Procedure Rule 581(1). “It is within the suppression court’s sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony.” Comm. v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003). The suppression court judge is entitled to believe all, part, or none of the evidence presented. Comm. v. Snell, 811 A.2d 581, 584 (Pa. Super. 2002). “When faced with conflicting testimony, a suppression court, as factfinder, may pass upon credibility, and these findings will not be disturbed when supported by the record.” Comm. v. Fahy, 516 A.2d 689, 696 (Pa. 1986).

Preliminarily, the defendant must first establish his standing and the expectation of privacy within the vehicle in order to challenge the search. Comm. v. Perea, 791 A.2d 427, 429 (Pa. Super. 2002). In order to establish that he had standing, a defendant must establish one of the following:

(1) his presence on the premises at the time of the search and seizure; (2) a possessor interest in the evidence improperly seized; (3) that the offense charged includes as an essential element of the prosecution’s case, the element of possession at the time of the contested search and seizure; or (4) a proprietary or possessory interest in the search premises.

Comm. v. Hawkins, 718 A.2d 265, 267 (Pa. 1998) (internal brackets and citations omitted). As the Supreme Court of Pennsylvania explained, “This court has accorded standing automatically, with no preliminary showing of a proprietary or possessory interest by the defendant, in the third of these circumstances, namely, where possession at the time of the contested search and seizure is an essential element of the prosecution’s case.” Id. Here, the defendant has been charged with the possession of a controlled substance. An essential element of this charge undoubtedly includes the possession of the contraband, thereby establishing standing under the third circumstance.

Next, a defendant must also establish that he had a reasonable expectation of privacy in the area that was searched.

An expectation of privacy is present when the individual, by his conduct, exhibits an actual (subjective) expectation of privacy and that the subjective expectation is one that society is prepared to recognize as reasonable. The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on the whether the expectation is reasonable in light of all the surrounding circumstances. Pennsylvania law makes clear that there is legally no cognizable expectation of privacy in a stolen automobile.

Comm. v. Jones, 874 A.2d 108, 118 (Pa. Super. 2005). It is the defendant’s burden to establish a legitimate expectation of privacy in the area to be searched. Hawkins, 718 A.2d at 267. The courts of this Commonwealth have held that a defendant does not have a reasonable expectation of privacy in abandoned property. See Comm. v. Perea, 791 A.2d 427 (Pa. Super. 2002). In Perea, the police found an inoperable vehicle with flat tires, no license plate, no valid registration sticker, and no registered owner. The defendant attempted to argue that he had a reasonable expectation of privacy in the vehicle because he had the keys to it. Id. at 429. The Superior Court refused to find that he had a reasonable expectation of privacy while noting that the defendant failed to produce any paperwork to show ownership or any other legitimate connection to the vehicle. Id.

Additionally, courts have refused to extend a right to privacy under some circumstances which involve rental cars. For example, in Jones, the defendant was operating a rental vehicle for which he was not an authorized driver and the rental agreement had expired, Id. After the defendant was stopped by the police for an investigatory detention, the police learned that the vehicle had been rented by another individual, the defendant was not an authorized person to drive the vehicle, and the rental agreement had expired. Id. The police contacted the rental company, which instructed the police to impound the vehicle and consented to a search. The police then conducted a warrantless search on the vehicle and the police could not locate the rental agreement inside the vehicle. Id. The search produced evidence of contraband, and the defendant was charged with possession with the intent to deliver contraband. Id. In a motion to suppress, the defendant attempted to challenge the constitutionality of the warrantless vehicle search. Id. The Superior Court refused to extend an expectation to privacy under those circumstances. Id. at 120. The court noted that neither the defendant nor his passengers attempted to explain their connection to the authorized individual and the individuals gave inconsistent statements about the reason for their trip. Id. The court concluded that the trial court properly denied the motion to suppress because the defendant could not claim that he had a reasonable expectation of privacy. Id.

Instantly, the defendant was operating a rental car, which was reported to be stolen. The defendant was not an authorized driver under the rental agreement, and the car was ultimately found abandoned. The only way that the defendant attempted to explain the relationship to the renter of the vehicle was to say that he was her friend. Although the friend, Ms. Margo Jackson, confirmed that she and the defendant were friends, she did not confirm that she authorized the defendant to drive the vehicle. As stated above, it is the defendant’s burden to establish that he had a legitimate expectation of privacy in the vehicle. Considering these facts, the court finds that the defendant has failed to prove he had a legitimate expectation of privacy in the rental vehicle, which renders him unable to contest the search. As a result, the defendant’s motion to suppress is hereby denied.

II. Petition for Writ of Habeas Corpus

Also contained within the omnibus pretrial motion is the petition for writ of habeas corpus (hereinafter, the “petition”). As stated above, the defendant is charged with fleeing or attempting to elude pursuant to 75 Pa.C.S.A. § 3733(a), flight to avoid apprehension pursuant to 18 Pa.C.S.A. § 5126(a), reckless driving pursuant to 75 Pa.C.S.A. § 3736(a), careless driving pursuant to 75 Pa.C.S.A. § 3714(a), possession of a controlled substance pursuant to 35 P.S. § 780-116(a)( 16), possession with the intent to deliver a controlled substance pursuant to 35 P.S. § 780-116(a)(30), and possession of drug paraphernalia pursuant to 35 P.S. § 780-116(a)(32). In this petition, the defendant argues that the Commonwealth failed to present sufficient evidence to establish a prima facie case of each of the crimes with which he was charged. As a result, the defendant requests all charges against him be be dismissed.

Filing a petition for writ of habeas corpus is the recognized method for challenging a finding that the Commonwealth has established a prima facie case at the preliminary hearing stage. Comm. v. Karlson, 674 A.2d 249 (Pa. Super. 1996). See also Comm. v. McBride, 595 A.2d 589 (Pa. 1995); Comm. v. Carmody, 799 A.2d 143 (Pa. Super. 2002). On review, the trial court must find that the Commonwealth presented sufficient evidence to make a prima facie showing that the defendant committed the crime with which he or she is charged. Comm. v. Hock, 728 A.2d 943 (Pa. 1999).

In order to establish a prima facie showing, the Commonwealth must present evidence establishing that the crime charged was committed and that there is a probability that the defendant committed the charged crime. Comm. v. Fox, 619 A.2d 327 (Pa. Super. 1993). To prove these two things, the Commonwealth must offer some proof to establish each material element of the offense charged. Comm. v. Owen, 580 A.2d 412 (Pa. Super. 1990). It is not necessary that the Commonwealth prove each element beyond a reasonable doubt. Comm. v. Prosdocimo, 479 A.2d 1073 (Pa. Super. 1994). The Commonwealth need only meet the evidentiary standard of showing “sufficient probable cause” that the defendant committed the offense. Id. Aprima facie case is established when the Commonwealth submits evidence that, if true, would warrant the trial judge to permit the case to go to a jury. Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001). Weight or credibility of the evidence presented is not at issue at a preliminary hearing. Id. The Commonwealth needs only present evidence concerning each element of the crime charged, and the Commonwealth is entitled to all reasonable inferences that can be drawn from the evidence presented. Id. The Commonwealth may prove its case entirely by circumstantial evidence; however, the evidence must not be pure conjecture. Comm. v. Stores, 463 A.2d 1108, 1112 (Pa. Super. 1983).

The defendant is charged with fleeing or attempting to elude police officers (hereinafter, “fleeing or eluding”) pursuant to 75 Pa.C.S.A. § 3733. Fleeing or eluding is defined as, “Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop[.]” 75 Pa.C.S.A. § 3733(a). An individual acts “willfully” if he acts knowingly. 18 Pa.C.S.A. § 302(g). “A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of the nature or that such circumstances exist[.]” 18 Pa.C.S.A. § 302(b)(2)(i).

In the instant case, the Commonwealth presented evidence that Officer Piche observed the defendant’s operating the vehicle; and Officer Piche immediately turned his vehicle around, followed the defendant’s vehicle, and activated the emergency lights. First, the defendant appropriately stopped at a stop sign. However, immediately thereafter, while Officer Piche was following him in a marked police car with its lights and sirens activated, the defendant accelerated the vehicle at a high rate of speed. This action on its own can be reasonably inferred to be willful. The court need not rely only on this action because, although the defendant did eventually stop the vehicle, as soon as Officer Piche exited the police cruiser, the defendant again accelerated the vehicle and did, in fact, elude Officer Piche. The defendant’s actions can only be described to be willful. There is no reasonable inference the court can consider to explain the defendant’s behavior, except that he was fleeing and eluding the police. There is no explanation for why he would be unable to recognize the emergency lights flashing behind him. The defendant clearly has the ability to see, since he was driving the vehicle. Therefore, the Commonwealth presented sufficient evidence of a prima facie case of fleeing and eluding, and the defendant’s petition with regard to this charge is denied.

Next, the defendant is charged with flight to avoid apprehension pursuant to 18 Pa.C.S.A. § 5126(a). “A person who willfully conceals himself or moves or travels within or outside this Commonwealth with the intent to avoid apprehension, trial or punishment commits a felony of the third degree when the crime which he has been charged with or has been convicted of is a felony and commits a misdemeanor of the second degree when the crime which he has been charged with or has been convicted of is a misdemeanor.” Id. “[T]he plain language of the statue requires that the defendant intend to avoid apprehension, trial or punishment.” Comm. v. Steffy, 36 A.3d 1109, 1112 (Pa. Super. 2012).

As stated above, the Commonwealth sufficiently established that the defendant intended to avoid apprehension by eluding the police. At the time the defendant was fleeing from the police, Officer Piche was aware that the defendant had an active felony arrest warrant issued for him. Officer Piche also testified that the defendant was aware of the arrest warrant because he was informed of it and ordered to turn himself in. The evidence before the court reflects that the defendant was fleeing from the police to avoid apprehension for pending charges filed against him. Despite this evidence, the defendant argues that the Commonwealth failed to present sufficient evidence that the defendant was the individual who committed the crime because there is no evidence that the defendant was the individual who was operating the vehicle. The court disagrees. Officer Piche testified unequivocally that he observed the defendant in the driver ⅛ seat of the vehicle. For purposes of the instant petition, this evidence is sufficient to establish that the defendant committed the crime. As a result, the Commonwealth presented sufficient evidence of a prima facie case of flight to avoid apprehension, and the defendant’s petition with regard to this charge is denied.

Next, the defendant is charged with reckless driving pursuant to 75 Pa.C.S.A. § 3736(a). “Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” Id. “A person acts recklessly ... when he consciously disregards a substantial and unjustifiable risk” of harm to persons or property. 18 Pa.C.S.A. § 302(b)(3). “[Tjhere must be ... tangible indicia of unsafe driving to a degree that creates a substantial risk of injury that is consciously disregarded.” Comm. v. Jeter, 937 A.2d 466, 468 (Pa. Super. 2007). The mens rae necessary to establish reckless driving is demonstrated by the defendant’s considering a high probability of harm and then “callously” disregarding the risk. Comm. v. Bullick, 830 A.2d 998, 1003 (Pa. Super. 2003).

Here, Officer Piche testified that the defendant accelerated his vehicle twice and failed to stop at “the rest of’ the stop signs. Officer Piche did not explain how many stop signs the defendant failed to obey. The Commonwealth presented no testimony that the defendant would have been conscious of any known risk. This incident occurred at midnight, a time during which there are fewer vehicles on the road; and there was no evidence presented that other vehicles were indeed on the road. Also, Officer Piche did not testify to whether he was in harm’s way when he exited the cruiser when the defendant accelerated his vehicle.

The Superior Court in Comm. v. Greenberg, 885 A.2d 1025 (Pa. Super. 2005), refused to find that the defendant had the requisite mens rae to sustain the charge of reckless driving. In Greenberg, the defendant was driving his vehicle at 55 miles-per-hour on a four lane highway with a posted speed limit of 35 miles-per-hour. Id. While proceeding through a sharp curve, the defendant lost control of his vehicle and the vehicle spun and collided with another vehicle, which was traveling in the opposite direction. Id. In finding the evidence to be insufficient to establish the offense of reckless driving, the Superior Court stated that “there is no evidence [the defendant] had any difficulty negotiating the road or came close to colliding with other vehicles prior to encountering the curve that caused him to lose control.” Id. at 1029. The court explained, “[RJeckless driving requires driving that not only grossly deviates from ordinary prudence but also creates a substantial risk that property damage or personal injury will follow.” Id.

In the case at bar, the Commonwealth failed to present evidence that not only was the defendant’s driving a gross deviation from that of an ordinary prudent person, but also that the defendant observed a potential danger and disregarded that danger while continuing to drive. For example, had the evidence established that other vehicles were on the road and approaching the intersection through which the defendant drove without stopping, under those circumstances, the defendant’s behavior could be characterized as a willful and wanton disregard for the safety of others. Having an absence of any indicia of a known, probable, substantial risk of harm to people or property above those risks typically associated with failing to stop at a stop sign, the court will not find that the defendant had the requisite mens rae for reckless driving. As a result, the Commonwealth failed to present sufficient testimony to establish a prima facie case of reckless driving. The defendant’s petition with regard to this crime is granted, and this charge will be stricken from the information.

The defendant is also charged with careless driving pursuant to 75 Pa.C.S.A. § 3714(a). “Any person who drives a vehicle in a careless disregard for the safety of persons or property is guilty of careless driving[.]” Id. The term “careless disregard” is a degree of culpability which is less than a “willful and wanton” disregard for the safety of others but greater than mere negligent driving. Comm. v. Podrasky, 378 A.2d 450, 452 (Pa. Super. 1977). To establish a prima facie case for careless driving, the Commonwealth must present sufficient “evidence of negligent acts, amounting to a careless disregard of the rights or safety of others, the consequences of which could reasonably have been foreseen by the driver of the vehicle.” Id.

Here, the Commonwealth presented evidence that the defendant drove through stop signs and he accelerated his vehicle at “a high rate of speed.” Failing to stop at stop signs, even if not speeding, could certainly endanger the safety of others, especially considering that the incident occurred around midnight, in the dark of the night. The defendant did not simply “roll through” one stop sign, which would be indicative of mere negligence. Instead, the defendant accelerated his vehicle without stopping at all. As a result, the court finds that the Commonwealth presented sufficient evidence of a prima facie case of careless driving, and the defendant’s petition with regard to this charge is denied.

Next, the defendant is charged with possession of a controlled substance pursuant to 35 P.S. § 780-113(a) (16). This charged is based upon the defendant’s alleged possession of .7 grams of crack cocaine. Section 780-113(16) of the Controlled Substance, Drug, Device and Cosmetic Act (hereinafter, the “Act”) provides in relevant part as follows: “(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited ... (16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act[.]” 35 P.S. § 780-113(a)(16). To sustain a prima facie case for possession of a controlled substance the “Commonwealth must prove that [the defendant] knowingly or intentionally possessed a controlled substance without being properly registered to do so under the Act.” Comm. v. Brown, 48 A.3d 426, 430 (Pa. Super. 2012). “Possession of a controlled substance can be established by showing that the defendant had the substance on his person, [which is known as] actual possession.” Comm. v. Parsons, 570 A.2d 1328, 1334 (Pa. Super. 1990). Here, Officer Hallowich located the crack cocaine in the headliner of the vehicle above the driver’s seat. Because the contraband was not found on the defendant’s person, the Commonwealth must prove that the defendant had constructive possession of these drugs. See Comm. v. Kirkland, 831 A.2d 607, 611 (Pa. Super. 2003).

Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. We have defined constructive possession as “conscious dominion.” We subsequently defined “conscious dominion” as “the power to control the contraband and the intent to exercise that control.” To aid application, we have held that constructive possession may be established by the totality of the circumstances.”

Comm. v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (internal citations omitted). Moreover, “[t]he fact that another person may also have control and access does not eliminate the defendant’s constructive possession; two actors may have joint control and equal access and thus both may constructively possess the contraband.” Comm. v. Haskins, 677 A.2d 328, 330 (Pa. Super. 1996).

As stated above, Officer Hallowich located the crack cocaine inside the headliner of the vehicle above the driver’s seat. Although the defendant did not rent the vehicle, the defendant was seen operating the vehicle. When the vehicle was ultimately found one to two days later, it was abandoned. The court does not believe it is a stretch to infer that the defendant was likely the last person who operated the vehicle. Although three other individuals were seen running from the vehicle, the crack cocaine was found above the driver’s seat, the seat the defendant occupied. Based upon these facts, the court finds that the defendant clearly had the ability to exercise conscious dominion over the contraband; however, there is no direct evidence to establish that the defendant knew the contraband was located inside the headliner. As a result, the court must look to the surrounding circumstances for an inference of knowledge sufficient to establish the element of intent. The court is unable to analyze the surrounding circumstances because the record is devoid of such details. The Commonwealth cannot prove that the defendant was the only individual who had access to the area in which the contraband was found. Ms. Margo Jackson was the individual who rented the vehicle. It is probable that she had access to this area above the driver’s seat as well. Further, there is no evidence that the defendant actually accessed or made any movements toward the headliner of the vehicle. Without any evidence on which the court can rely to find that the defendant had knowledge of the contraband, the intent element cannot be established. As a result, the Commonwealth has failed to present a prima facie case of possession of a controlled substance. The petition is granted with respect to this charge, and it will be stricken from the information.

The defendant is also charged with possession of a controlled substance with the intent to deliver pursuant to 35 P.S. § 780-133(a)(30). “The crime of possession of a controlled substance with the intent to deliver requires the Commonwealth to prove an additional element [to the charge of possession of a controlled substance]: that [the defendant] possessed the controlled substance with the intent to manufacture, distribute, or deliver it.” Comm. v. Brown, 48 A.2d 426, 430 (Pa. Super. 2012). Because the Commonwealth is unable to establish the first element of this crime, possession of the contraband, the Commonwealth cannot meet its standard for possession of a controlled substance with the intent to deliver. The petition is granted with respect to this charge, and it will be stricken from the information.

Lastly, the defendant is charged with possession of drug paraphernalia pursuant to 35 P.S. § 780-113(a)(32). The Commonwealth alleges that the defendant possessed a plastic baggie in which the crack cocaine was located. Because the court found that the Commonwealth was unable to establish that the defendant possessed the crack cocaine; the court similarly is unable to find that the defendant possessed its encasing, the plastic baggie. The petition is granted with respect to this charge, and it will be stricken from the information. Therefore, the petition for writ of habeas corpus is granted in part and denied in part.

Based upon the foregoing, the omnibus pretrial motion is hereby granted in part and denied in part.

ORDER OF COURT

And now, this 20th day of February, 2015, this case being before the court on January 7,2015, for a hearing on the defendant’s omnibus pretrial motion, with Assistant District Attorney William J. Flannery, Esquire, appearing and representing the Commonwealth of Pennsylvania, and Aaron M. Cangey, Esquire, appearing and representing the defendant, and upon a complete and thorough review of the applicable record, the court hereby orders and decrees as follows:

1. The defendant’s omnibus motion is granted in part and denied in part pursuant to the attached opinion.

2. The defendant’s omnibus pretrial motion is hereby denied with respect to the motion to suppress.

3. The defendant’s omnibus pretrial motion is hereby granted with respect to the petition for writ of habeas corpus challenge to Counts 3, 5, 6, and 7 as contained within the information.

4. Counts 3, 5, 6, and 7 as contained in the information are hereby dismissed.

5. The defendant’s omnibus pretrial motion is hereby denied with respect to all other challenges within the petition for writ of habeas corpus.

6. The clerk of courts shall properly serve notice of this order and opinion upon counsel of record; and if a party has no counsel, then upon said party at his last known address as contained in the court’s file.


source: Caselaw Access Project

author: BELTRAMI, J.,

license: Public Domain

text:
    Marra v. Lipsky

      C.P. of Northampton County,
    No. C-48-CV-2014-4260

      Matthew B. Weisberg and Graham F. Baird, for plaintiffs.

      Michael C. Deschler and Matthew J. Deschler, for defendant Denise F. Lipsky.

      Paul C. Troy, for defendants Joseph Piperato, III and Benner & Piperato.
    Feb. 23, 2015
   BELTRAMI, J.,

This case is before the court on “defendant Denise F. Lipsky’s preliminaiy objections to plaintiffs’ amended complaint,” filed on January 2, 2014, and the “preliminary objections of defendants Joseph Piperato, III and Benner & Piperato to plaintiffs’ amended complaint,” filed on June 23, 2014. Briefs have been submitted, oral argument was heard, and the matters are ready for disposition.

On December 13, 2013, plaintiffs filed their amended complaint, which alleges the following facts. On or about October 14,2011, plaintiff Lawrence Marra, Jr. (“Marra”) entered into an agreement of sale (“agreement”) with Lipsky to purchase, from Lipsky, a lot on a parcel of land (“property”) for $200,000.00. (Am. Compl. ¶ 9, Ex. A.) At the time, Marra was the business partner of plaintiff Steven J. Miga (“Miga”). (Id. ¶ 7.) Marra and Miga’s intent was to use the property to sell cars. (Id. ¶ 10.) Pursuant to the terms of the agreement, Marra paid Lipsky a deposit of $5,000.00 on October 17, 2011. (Id. ¶ 12.) The sale of the property was contingent on Marra successfully obtaining zoning approval to sell cars on the property. (Id. ¶ 13.) The sale of the property was to be finalized on April 15, 2012, unless zoning approval was not obtained by that date, in which case the settlement date would be extended six months to October 15, 2012. (Id. ¶¶ 14-15.)

In February 2012, plaintiffs retained defendant Joseph Piperato, III, Esquire (“attorney Piperato”) to represent them in the purchase of the property and their application for zoning approval. (Id. ¶ 16.) In the spring of 2012, plaintiffs applied to the Lower Nazareth Township Zoning Board for approval to convert part of a home on the property into a sales office for the intended business. (Id. ¶ 17.) A zoning hearing took place, at which testimony was presented that Lipsky would grant plaintiffs an easement to store cars on a lot adjacent to the property if zoning approval for the property was granted. (Id.) However, the zoning hearing had to be continued to a date when the zoning board would have the necessary quorum to vote on the application. (Id. ¶ 18.) Thereafter, Lipsky represented that she would not, in fact, grant a permanent easement but, rather, only a five-year easement. (Id. ¶ 19.) As a result, on April 4,2012, Marra informed Miga and attorney Piperato that he planned to rescind the agreement due to Lipsky’s change of heart. (Id. ¶ 20.) Marra drafted a letter to this end, addressed to Lipsky, but never sent it to her. (Id. 21.) According to plaintiffs, attorney Piperato disclosed the contents of the letter to Lipsky without their consent. (Id. ¶ 22.)

While Marra no longer intended to purchase the property, Miga did. (Id. ¶ 23.) Accordingly, on April 5, 2012, Marra assigned his rights under the agreement to Miga. (Id. ¶ 24, Ex. D.) However, on or about July 3,2012, Lipsky sold the property to a third party named Patrick M. Hughes. (Id. ¶ 26, Ex. F.) On July 13, 2012, Lipsky returned Marra’s $5,000.00 deposit to him along with a message that read: “Pursuant to your letter from 4/4/12 rescinding our agreement of sale dated 10/14/11, enclosed please find a check for $5,000.00 representing the return of your deposit on the agreement rescinded by you.” (Id. ¶¶ 27-28, Ex. G.) In August 2012, attorney Piperato disclosed to Marra that he had drafted the agreement of sale between Lipsky and Hughes. (Id. ¶ 29.)

Plaintiffs’ amended complaint contains four counts. In Counts I and II, plaintiffs assert breach of contract and fraud claims, respectively, against Lipsky. In Counts III and IV, plaintiffs state legal malpractice and breach of fiduciary duty claims, respectively, against attorney Piperato and his law firm. The court will first address those of defendants’ objections which overlap.

Lipsky and attorney Piperato both object to the amended complaint’s failure to include a verification, as required by Pennsylvania Rule of Civil Procedure 1024. On January 16, 2014, plaintiffs filed a praecipe to attach a verification to the amended complaint, rendering these objections moot.

Lipsky and attorney Piperato also object on the ground that plaintiffs’ requests for attorney’s fees and punitive damages are improper. Plaintiffs request attorney’s fees in all counts and punitive damages in all counts but Count I, the breach of contract claim against Lipsky. The court views these objections as being based upon the “inclusion of. . . impertinent matter.” Pa.R.C.P. No. 1028(a)(2). To be impertinent, “the allegations must be immaterial and inappropriate to the proof of the cause of action.” Common Cause/Pa. v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998). A party includes impertinent matter in a pleading by making an inappropriate request for damages. Hudock v. Donegal Mut. Ins. Co., 264 A.2d 668, 671 n.2 (Pa. 1970).

In Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766, 770-71 (Pa. 2005), the Pennsylvania Supreme Court stated:

The standard governing the award of punitive damages in Pennsylvania is settled. “Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (1984) (quoting Restatement (Second) of Torts § 908(2) (1979)); see also Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355, 358 (1963). As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct. See SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702, 704 (1991); Feld, 485 A.2d at 747-48; Chambers, 192 A.2d at 358. See also Restatement (Second) of Torts § 908, comment b. The purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from similar conduct. Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800, 803 (1989); Restatement (Second) of Torts § 908 (1) (“Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.”). Additionally, this court has stressed that, when assessing the propriety of the imposition of punitive damages, “[t]he state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious.” See Feld, 485 A.2d at 748; see also Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1097 n. 12 (1985) (plurality opinion).

With regard to Count III of the amended complaint, plaintiffs’ legal malpractice claim against attorney Piperato, the court notes that

[i]n Rizzo [v. Haines, 555 A.2d 58, 69 (Pa. 1989)], the [Pennsylvania Supreme] Court found that punitive damages were available on a legal malpractice claim. The attorney had used his position to persuade his client to transfer to the attorney the proceeds of a sanctions order awarded to the client by the trial judge due to the attorney’s misconduct. The attorney secured this transfer after intentionally withholding the judge’s findings of misconduct, in order to evade her ruling. He also told the client that he needed the money to pursue the client’s legal claims that proved meritless. These breaches of fiduciary duty, intentional withholding of critical information and fraudulent misrepresentation, the court found, were more than sufficient to justify a punitive damage award.

Meyers v. Sudfeld, No. 05-CV-2970, 2007 WL 419182, at *12 (E.D. Pa. Feb. 2, 2007) (citation omitted). In Meyers, the District Court, applying Pennsylvania law, found that a legal malpractice claim which essentially complained of “bad legal advice” was insufficient as a matter of law to give rise to punitive damages. Id. at *13.

Here, plaintiffs allege that attorney Piperato committed malpractice by:

(a) Failing to provide appropriate and necessary legal advice to plaintiffs;
(b) Failing to completely and clearly advise plaintiffs [of] the status of their transaction;
(c) Misrepresenting to plaintiffs by offering numerous assurances that the agreement of sale was not in jeopardy;
(d) Representing both buyers and seller in a clear conflict of interests;
(e) Disclosing confidential information;
(f) Failing to secure plaintiffs’ zoning board approval as well as the underlying purchase; and
(g) Other conduct that deviated from the applicable standard of care.

(Am. Compl. ¶ 42.) Allegations (a), (b), (d), (e), and (f) are all allegations of either “bad legal advice” or of conduct that may constitute a violation of the rules of professional conduct. However, allegation (c), taken as true and viewed “together with all the circumstances including the motive of the wrongdoers and the relations between the parties[,]” including attorney Piperato’s representation of Hughes in the purchase of the property while Miga was, arguably, still his client and a party to the contract with Lipsky, alleges something beyond mere faulty legal representation. Feld v. Merriam, 485 A.2d 742, 748 (Pa. 1984) (quoting Chambers v. Montgomery, 192 A.2d 355, 358 (Pa. 1963)). Because punitive damages are available in legal malpractice actions, and because plaintiffs allege a factual predicate marginally sufficient to give rise to the same, the court will not remove punitive damages, as a matter of law, at this early stage of the proceedings. Thus, attorney Piperato’s objection to plaintiffs’ request for punitive damages in Count III will be overruled. Further, because Count IV is based on the same alleged conduct identified in Count III, and the standard for awarding punitive damages in a breach of fiduciary duty claim does not differ from that in a legal malpractice claim, attorney Piperato’s objection to plaintiffs’ request for punitive damages in Count IV will also be overruled. The court will address infra Lipsky’s objection to plaintiffs’ request for punitive damages in Count II, the fraud claim against Lipsky.

Lipsky and attorney Piperato each object to plaintiffs’ requests for attorney’s fees in all counts. “The general rule is that the parties to litigation are responsible for their own counsel fees and costs unless otherwise provided by statutory authority, agreement of parties, or some other recognized exception.” Cresci Const. Services, Inc. v. Martin, 64 A.3d 254, 266 (Pa. Super. 2013) (quoting Cher-Rob, Inc. v. Art Monument Co., 594 A.2d 362, 363 (Pa. Super. 1991)). As there is no statutory authority, agreement of the parties, or other recognized exception to the general rule in this case, plaintiffs’ requests for attorney’s fees are impertinent and will be stricken.

In his second, third, and fourth objections, attorney Piperato moves to strike paragraph 31 of plaintiffs’ amended complaint, which states that “defendants are liable to plaintiffs, directly, indirectly, contractually, expressly, implicitly, as a matter of law and/or vicariously, including but not limited to liability via a third-party beneficiary relationship, and/or via conspiring and/or aiding and abetting.” (Am. Compl. ¶ 31.) In his second and third objections, attorney Piperato argues that plaintiffs’ references to a “third-party beneficiary relationship” and “conspiring,” without further elaboration, are insufficiently specific and should be stricken. In his fourth objection, attorney Piperato argues that plaintiffs’ “general allegations of negligence” in paragraphs 31 and 42(g) are also insufficiently specific. (Attorney Piperato’s Br. at 5-6.) However, paragraph 31 contains no such allegations of general negligence. Thus, the court will overrule the fourth objection of attorney Piperato as it relates to paragraph 31. As noted above, the parties agree that paragraph 42(g) of the amended complaint can be stricken.

As to attorney Piperato’s second and third objections, the relevant question is whether the amended complaint is adequately clear to allow attorney Piperato to set up his defense, or whether the amended complaint informs him, with precision, of the basis on which recovery is sought so that he may know, without question, the grounds upon which to assert a defense. Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006). In determining whether a particular paragraph is stated with the necessary specificity, that paragraph must be read in the context of all of the allegations made in the complaint. Unified Sportsmen of Pa. v. Pa. Game Com’n (PGC), 950 A.2d 1120, 1134 (Pa. Commw. 2008). In ruling on a motion to strike for insufficient specificity under Rule 1028(a)(3), the court may “eliminate any broad or ambiguous allegations from a complaint.” Lawrence v. Malloy, 74 Pa. D. & C.4th 361, 376 (C.P. of Lackawanna Cnty. 2005). Paragraph 31 fits this description. The paragraph alleges various grounds on which defendants are potentially liable. This determination is for a jury to make, with the aid of the court’s legal instructions. Rather than a proper allegation of material facts, paragraph 31 contains improper legal conclusions and is insufficiently specific. Accordingly, attorney Piperato’s second and third objections will be sustained, and Paragraph 31 will be stricken from the amended complaint.

Attorney Piperato’s fifth objection is based upon the failure of the amended complaint to conform to Rule 1019(a), which states: “The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. No. 1019(a). More specifically, attorney Piperato argues that plaintiffs’ use of the terms “recklessly” and “recklessness” in paragraphs 42 and 44, respectively, violates this rule. However, plaintiffs do set forth the material facts on which Count III is based in concise and summary form, in accordance with Rule 1019(a). The terms “recklessly” and “recklessness” are presumably included in connection with plaintiffs’ request for punitive damages in Count III which, as discussed previously, is not an impertinent request. Therefore, there has been no violation of Rule 1019(a), and attorney Piperato’s fifth objection will be overruled.

The court next turns to Lipsky’s remaining objections. First, in her third objection, Lipsky argues that attorney Piperato’s communication to her that the agreement was to be rescinded effectively terminated the agreement, thus rendering plaintiffs’ breach of contract claim against her legally insufficient. The question presented by a demurrer is whether, on the facts pleaded, the law says, with certainty, that no recovery is possible. Orange Stones Co. v. City of Reading, 87 A.3d 1014, 1021 n.7 (Pa. Commw. 2014). The court must resolve a demurrer solely on the basis of the pleadings, without reference to testimony or other outside evidence. Hill v. Ofalt, 85 A.3d 540, 546 (Pa. Super. 2014). When considering a demurrer, the Court must accept, as true, all material facts averred in the challenged pleading, as well as all inferences that can be reasonably deduced therefrom. Schemberg v. Smicherko, 85 A.3d 1071, 1073 (Pa. Super. 2014).

Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Id.

Lipsky argues that when she sold the property to Hughes her agreement with Marra was no longer in existence because attorney Piperato had advised her that Marra was rescinding the agreement. Plaintiffs allege that Marra drafted a letter expressing his intention to rescind the contract and that attorney Piperato improperly disclosed the letter’s contents to Lipsky without their consent, causing her to believe the contract was terminated. (Am. Compl. ¶¶ 20-22.) However, neither the letter and its contents, nor the exact alleged communication of the same to Lipsky by attorney Piperato, are contained in the pleadings. Without access to either the actual language used in the letter or the portion thereof communicated to Lipsky by attorney Piperato, it is impossible for the court to determine whether the communication was sufficiently specific to constitute a repudiation of or termination of the agreement. Thus, it is not clear and free from doubt whether Lipsky’s obligations to plaintiffs under the agreement had been terminated at the time she sold the property to Hughes. As a result, Lipsky’s demurrer to Count I must be overruled.

In her fourth objection, Lipsky asserts a demurrer to plaintiffs’ fraud claim based on three theories: (1) that plaintiffs have failed to state a prima facie case of fraud; (2) that the gist of the action doctrine bars plaintiffs’ fraud claim; and (3) that plaintiffs’ fraud claim is not pleaded with particularity. The court will analyze Lipsky’s second theory first.

The gist of the action doctrine was recognized by the Superior Court for the first time in Bash v. Bell Tel. Co. of Pa., 601 A.2d 825 (Pa. Super. 1992). The doctrine is designed to enforce the conceptual distinctions between tort claims and breach of contract claims. eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10, 14 (Pa. Super. 2002). “As a practical matter, the doctrine precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” Id. The difference between contract claims and tort claims was explained in Bash as follows:

[A]lthough they derive from a common origin, distinct differences between civil actions for tort and contract breach have developed at common law. Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.... To permit a promisee to sue his promisor in tort for breaches of contract inter se would erode the usual rules of contractual recovery and inject confusion into our well-settled forms of actions.

Bash, 601 A.2d at 829.

“[I]t is possible that a breach of contract also gives rise to an actionable tort[.] To be construed as in tort, however, the wrong ascribed to [the] defendant must be the gist of the action, the contract being collateral.” Id. (quoting Closed Circuit Corp. of Am. v. Jerrold Elecs. Corp., 426 F.Supp. 361, 364 (E.D. Pa. 1977)). Atort claim should not be allowed when “the parties’ obligations are defined by the terms of the contract, and not by the larger social policies embodied by the law of torts.” Id. at 830. Stated another way, “[i]f the plaintiff must rely wholly on the agreement to define the rights that the defendant violated, the claim is generally a contract claim.” Greater Philadelphia Health Servs. II Corp. v. Complete Care Servs., L.P., 2000 WL 33711052, at *1 (Pa. Com. Pl. 2000). “Courts have generally invoked the gist of the action doctrine to bar a tort claim where the defendant negligently or intentionally breached a contract.” Id. at *2.

[Authority interpreting Pennsylvania law has restated the gist of the action doctrine in a number of similar ways. These courts have held that the doctrine bars tort claims: (1) “arising solely from a contract between the parties”; (2) where “the duties allegedly breached were created and grounded in the contract itself’; (3) where “the liability stems from a contract”; or (4) where the tort claim “essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of a contract.”
These courts have not carved out a categorical exception for fraud, and have not held that the duty to avoid fraud is always a qualitatively different duty imposed by society rather than by the contract itself. Rather, the cases seem to turn on the question of whether the fraud concerned the performance of contractual duties. If so, then the alleged fraud is generally held to be merely collateral to a contract claim for breach of those duties. If not, then the gist of the action would be the fraud, rather than any contractual relationship between the parties.

eToll, Inc., 811 A.2d at 19 (citations omitted).

If Lipsky’s sale to Hughes were the sole basis of plaintiffs’ fraud claim, there would be little question that the gist of the action doctrine bars that claim. However, plaintiffs clarify in their brief that their fraud claim concerns Lipsky’s representations regarding the easement rather than her sale of the property. In this regard, the representation alleged to have been fraudulent is not related to any term of the agreement and is collateral to duties created under the agreement itself. Nevertheless, the court is convinced that even if, as an alternate theory of liability, the factual essence of plaintiffs’ fraud claim is that Marra himself rescinded the agreement because of Lipsky’s fraud, the liability plaintiffs seek to impose is wholly dependent on the terms of the agreement. In other words, because plaintiffs’ fraud claim seeks to vindicate the loss of a right created by the agreement itself, the claim is, in essence, a duplication of plaintiffs’ breach of contract claim. Since it appears that both plaintiffs’ breach of contract and fraud claims against Lipsky seek redress for loss of the property, and plaintiffs’ only legal right to the property is created by and exists only within the four comers of the agreement, the gist of the action must be in breach of contract. For all of these reasons, Lipsky’s demurrer to plaintiffs’ fraud claim will be sustained, and Count II of the amended complaint will be dismissed.

Lipsky’s seventh objection asserts that Marra lacks standing to pursue a breach of contract claim against her in Count I of the amended complaint because he assigned his rights in the agreement to Miga prior to Lipsky’s sale of the property to Hughes. “An assignment is a transfer of property or some other right from one person to another, and unless in some way qualified, it extinguishes the assignor’s right to performance by the obligor and transfers that right to the assignee.” Emp ’rs Ins. of Wausau v. Commw., Dept. of Transp., 865 A.2d 825, 830 (Pa. 2005) (quoting Pentlong Corp. v. GLS Capital, Inc., 820 A.2d 1240, 1249 (Pa. 2003)).

[T]he Rules of Civil Procedure...require[] that all actions be prosecuted by the real party in interest. In an assignment, the nature of the particular assignment determines the identity of the real party. Ordinarily, an effective assignment is one by which the assignor’s right to performance by the obligor is extinguished and the assignee acquires a similar right to such performance. Therefore, the assignee is usually the real party in interest and an action on the assignment must be prosecuted in his name.

Wilcox v. Regester, 207 A.2d 817, 820 (Pa. 1965) (citations omitted).

Here, it is apparent that Marra did in fact assign his interest in the agreement to Miga prior to Lipsky’s sale to Hughes. (See Am. Compl. Exs. D, F.) Therefore, Marra is not the real party in interest in Count I, Lipsky’s seventh objection will be sustained, and Marra’s breach of contract claim against Lipsky will be dismissed.

WHEREFORE, the court enters the following:

ORDER OF COURT

And now, this 23rd day of February, 2015, upon consideration of “defendant Denise F. Lipsky’s preliminary objections to plaintiffs’ amended complaint” and the “preliminary objections of defendants Joseph Piperato, III and Benner & Piperato to plaintiffs’ amended complaint,” it is hereby ordered that said preliminary objections are sustained, in part, and overruled, in part, as follows:

1. Paragraph 42(g) of plaintiffs’ amended complaint is hereby stricken;

2. Plaintiffs’ requests for attorney’s fees in Counts I, III, and IV of plaintiffs’ amended complaint are hereby stricken;

3. Paragraph 31 of plaintiffs’ amended complaint is hereby stricken;

4. Count II of plaintiffs’ amended complaint is hereby dismissed; and

5. Plaintiff Lawrence Marra, Jr.’s breach of contract claim against defendant Denise F. Lipsky, contained in Count I of plaintiffs’ amended complaint, is hereby dismissed.

      . This action was originally filed in Lehigh County, where defendant Denise F. Lipsky (“Lipsky”) filed her instant preliminary objections raising, inter alia, improper venue. On April 7, 2014, the honorable J. Brian Johnson granted Lipsky’s venue objection and ordered that the case be transferred to Northampton County, deferring disposition of Lipsky’s remaining objections to this court.

      . Any references to attorney Piperato in the remainder of this opinion refer to both attorney Piperato and his firm, Benner & Piperato, Attorneys at Law.

      . At oral argument, the parties agreed that paragraph 42(g) of the amended complaint can be stricken as insufficiently specific.

      . Attorney Piperato could have also asserted his second and third objections to paragraph 31 on the theory that the complained-of language constitutes impertinent and scandalous matter, as the amended complaint does not allege civil conspiracy, or on the theory that paragraph 31 fails to conform to law, as conclusions of law “have no place in a pleading.” DelConte v. Stefonick, 408 A.2d 1151, 1153 (Pa. Super. 1979).

      . Because the court will dismiss Count II of the amended complaint, it need not address plaintiff’s demurrer to that count on the basis that plaintiffs have failed to plead the prima facie elements of fraud or that such elements are not pleaded with particularity. Further, the court need not address Lipsky’s fifth objection, which argues that Count II is insufficiently specific. Likewise, the court need not address that portion of Lipsky’s seventh objection, as it relates to Count II, nor Lipsky’s eighth objection. Finally, the court need not address that portion of Lipsky’s ninth objection which argues that plaintiffs’ request for punitive damages in Count II is impertinent.


author: YATRON, P.J,

text:
    Commonwealth v. Thomas

      C.P. of Berks County,
    No. CP-06-CR-0004055-2014

      Christopher Mandracchia, for Commonwealth.

      Daniel Nevins, for defendant.
    March 2, 2015
   YATRON, P.J,

Charles Thomas (“defendant”) is charged in the above-captioned case with persons not to possess firearms. On October 16, 2014, defendant filed an omnibus pretrial motion in the nature of a motion for suppression of evidence. Hearing was held December 17, 2014, and the matter is now ripe for disposition.

FINDINGS OF FACT

1. At the time of these events, defendant was under the supervision of the Berks County Adult Probation & Parole Office for a retail theft offense.

2. Probation Officer Ed Keglovits works for the County of Berks in the juvenile probation department.

3. Keglovits received information that there was a firearm at defendant’s residence. He received this information from the parent of another juvenile that he supervised.

4. At the time, Keglovits was supervising the son of defendant’s girlfriend.

5. Keglovits relayed the information to the adult probation office on April 17, 2014. Specifically, he informed probation officer Josiah Fisher, who was supervising defendant, and probation officer Michael Futrick, who was supervising defendant’s girlfriend, Kristina Adamski.

6. On November 28, 2012, Futrick and defendant reviewed and signed a document pertaining to his supervision.

7. Rule seven of the document reads: “I shall not own, possess, use, sell or have under my control firearms, ammunition, imitation, look-alike firearms, weapons capable of propelling a projectile or any other deadly weapons. Hunting is prohibited. I shall not own or have in my possession body armor of any type.”

8. Rule eight of the document reads: “In consideration of being granted probation or parole, I give consent to search of my person, residence or property upon reasonable suspicion that I may have violated or I am in violation of conditions of my probation or parole. Any item, the possession of which constitutes a violation, shall be subject to seizure and may be used as evidence in the violation process.”

9. Futrick spoke with his supervisor, Nick Volo, and received permission to search the residence for the firearm.

10. The residence was located at 515 South 17th and a Half Street in the City of Reading.

11. On April 21, 2014, Futrick, Fisher, and parole officer Carlo DeAngelo went to the house to conduct the search.

12. After knocking on the door and being let into the residence, defendant and Adamski were taken into custody. Other juveniles were also present, and they were compliant.

13. Adamski provided the location of the firearm, a Ruger pistol, which Fisher recovered from the third floor of the residence.

14. Adamski admitted that it was her gun.

15. Once they located the firearm, the officers conducted a search of the rest of the residence.

16. In defendant’s bedroom, DeAngelo located a cell phone. Defendant admitted it was his.

17. DeAngelo began looking through the pictures contained on the cell phone, in search of any image of defendant possessing the firearm.

18. On several previous occasions, DeAngelo had searched a cell phone and found evidence pertaining to firearms violations.

19. DeAngelo found two incriminating images of defendant posing with the firearm.

20. Based on this information, criminal investigator Adam Linderman of the Reading Police Department applied for a search warrant to examine the contents of the phone. The search warrant was approved on April 30, 2014. Subsequently, criminal investigator George Taveras of the Reading Police Department extracted the two photographs from the phone.

CONCLUSIONS OF LAW

Defendant argues that the images of him holding a gun were obtained in violation of his rights under Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the United States Constitution. For the reasons discussed herein, we find that the Commonwealth has met its burden of showing that the items were lawfully seized.

Defendant’s petition principally relies on the United States Supreme Court’s recent decision in Riley v. California, 134 S.Ct. 2473 (2014). In Riley, the court held that the warrantless search of a cell phone seized incident to arrest was unconstitutional:

Modem cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

Id. at 2494-95 (citation and internal quotation marks omitted). The holding of Riley, however, is not directly applicable to this case. See United States v. Dahl, — F.Supp. 3d — (E.D. Pa. Dec. 3, 2014) (citations omitted) (“Permitting the contents of a cell phone of a probationer, who has limited expectations of privacy, to be searched based on reasonable suspicion and without a warrant . . . does not open the floodgates to massive invasions of privacy without judicial oversight. Thus, the concern of the Supreme Court in Riley does not exist here.”).

The rights of an offender currently on probation or parole are necessarily different than those belonging to an unsupervised citizen. Pennsylvania law explicitly grants probation officers some latitude with regards to the warrantless search of an offender or his property. An officer may execute a personal search of an offender “if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision.” 42 Pa.C.S.A. §9912(d)(l) (i). “A property search may be conducted by an officer if there is reasonable suspicion to believe that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision.” Id. at §9912(d)(2). A property search requires the prior approval of a supervisor, “absent exigent circumstances.” Id. at §9912(d)(3). Section 9912 also outlines the criteria for the existence of reasonable suspicion:

(6) The existence of reasonable suspicion to search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision. In accordance with such case law, the following factors, where applicable, may be taken into account:
(i) The observations of officers.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the offender.
(v) The experience of the officers with the offender.
(vi) The experience of officers in similar circumstances.
(vii) The prior criminal and supervisory history of the offender.
(viii) The need to verify compliance with the conditions of supervision.

Id. at §9912(d)(6).

In the instant case, the probation officers followed proper protocol and had ample reasonable suspicion that justified the search of defendant’s cell phone. The chain of events described in the findings of fact, supra, implicate several prongs of Section 9912(d)(6). The probation & parole office received information that there was a firearm at defendant’s residence. Defendant was aware that he was not allowed to possess firearms and that he may be subject to a warrantless search, subject to reasonable suspicion. During the search, another resident, Adamski, provided the location of the firearm, which was recovered by one of the officers. Notwithstanding Adamski’s statement that the gun was hers, the officers now had ample reasonable suspicion that defendant may have violated the terms of his supervision. The officers next located a cell phone, which defendant admitted was his. Officer DeAngelo had previously found evidence of firearms-related violations on cell phones, so he began looking through the photographs contained on the device. DeAngelo’s suspicions were well-founded, as he found two incriminating images of defendant posing with a prohibited firearm.

Based on these events, we conclude that the officers had sufficient reasonable suspicion to justify the warrantless search of defendant’s cell phone. This reasonable suspicion was founded on information provided by others, information provided by residents during the search, the recovery of the firearm during the search, and the experience of the officers in similar circumstances. Given the presence of the firearm in defendant’s residence, the officers also had a strong need to verify his compliance with the terms of his supervision. We additionally note that the officers received permission from their supervisor before executing the search of defendant’s residence, thereby comporting with Section 9912(d)(3).

Based upon the findings of fact and conclusions of law contained herein, we believe that the Commonwealth has demonstrated that the challenged evidence is admissible. The initial search was lawful, and therefore the pictures later extracted from the cell phone cannot constitute “fruit of the poisonous tree.” Therefore, defendant’s motion for suppression of evidence is denied.

      . 18 Pa.C.S.A. §6105(a)(l).


author: SMYTH, J.,

text:
    Rothberg v. AAA Mid-Atlantic Insurance Group

      C.P. of Montgomery County,
    No. 14-08707

      Marc I. Simon, Esquire, for plaintiff.

      Andrew P Moore, Esquire, for defendant.
    March 5, 2015
   SMYTH, J.,

ORDER

Plaintiff Holly Rothberg instituted this action by filing a complaint April 24, 2014, against AAA Mid-Atlantic Insurance Group, seeking to recover medical expenses arising out of an automobile accident. The affidavit of service of the complaint indicates it was served on AAA the same day.

One hundred thirty-seven days later, on September 8, 2014, AAA filed and served preliminary objections under Pa.R.C.P. 1028(a)(2), seeking to have the complaint stricken for failure to conform to law or rule of court, specifically in being verified by plaintiff’s attorney rather than the party in violation of Pa.R.C.P. 1024(c). Rule 1024 provides, in pertinent part:

(a) Every pleading containing an averment of fact not appearing of record in the action or containing a denial of fact shall state that the averment or denial is true upon the signer’s personal knowledge or information and belief and shall be verified....
(c) The verification shall be made by one or more of the parties filing the pleading unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person’s information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party.

Pa.R.C.P. 1024(a), (c). See also Pa.R.C.P. 1002 (“Any act other than verification required or authorized by this chapter to be done by a party may be done by the party’s attorney.” (emphasis added)) and Pa.R.C.P. 1023.1(b). Preliminary objection is the appropriate means to challenge an improper attorney’s verification, Yanofsky v. Bannacker, 46 Pa. D. & C. 2d 435 (C.P. Phila. County 1969); see also Atl. Credit & Fin., Inc. v. Giuliana, 829 A.2d 340, 344 (Pa. Super. Ct. 2003) (holding preliminary objection to defective verification was proper), although leave to amend the pleading would be an appropriate remedy, see Lewis v. Erie Ins. Exch., 281 Pa. Super. 193, 421 A.2d 1214 (1980); Monroe Contract Corp. v. Harrison Square, Inc., 266 Pa. Super. 549, 405 A.2d 954 (1979), rather than to strike the improperly verified complaint in its entirety, as AAA requests the court to do. See also Harley Davidson Motor Co. v. Hartman, 296 Pa. Super. 37, 42, 442 A.2d 284, 286 (1982) (“Even where a trial court sustains preliminary objections on the merits, it is generally an abuse of discretion to dismiss a complaint without leave to amend.” (citing Otto v. Am. Mut. Ins. Co., 482 Pa. 202, 205, 393 A.2d 450, 451 (1978))).

AAA’s preliminary objections were themselves in violation of court rule by being patently untimely under Pa.R.C.P. 1026(a), which provides, in general, that, “[Ejvery pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading . . . .” Pa.R.C.P. 1026(a). Consequently, rather than correct the patent error in the verification to the complaint raised in the preliminaiy objections, which we assume could have been easily done, plaintiff, on October 10, 2014, filed preliminary objections to AAA’s preliminary objections based on their untimeliness under Pa.R.C.P. 1026(a) — a permissible procedural parry to the thrust of an untimely pleading under Pa.R.C.P. 1028(a) (2). See Chester Upland Sch. Dist. v. Yesavage, 653 A.2d 1319, 1324 n.8 (Pa. Commw. Ct. 1994) (“[A] party has the right to file preliminary objections raising any appropriate defenses or objections which that party might have to an adverse party’s preliminary objection. The proper method for challenging the propriety of a preliminary objection is by a preliminary objection to a preliminaiy objection.” (citation omitted)); see also Jacobs v. Merrymead Farm, Inc., 799 A.2d 980, 983 (Pa. Commw Ct. 2002) (holding party who preliminarily objects to a preliminaiy objection does not waive procedural defect in the objection under Pa. R.C.P. 1032(a)); Commonwealth v. Morcoal Co., 54 Pa. Commw. 87, 419 A.2d 821 (1980) (per curiam) (order disposing of preliminary objections) (sustaining preliminary objection in nature of motion to strike as untimely preliminary objection/demurrer filed twenty-five days after service of complaint).

Unfortunately, in what appears to be a developing pattern in the pleading in this case, plaintiff’s preliminary objections were subject to the same objection they raised to AAA’s preliminary objections, in being filed thirty-two days after service of AAA’s preliminary objections, and, hence, also untimely under Pa.R.C.P. 1026(a). The irony of the situation is apparently lost on the parties; neither the party objecting to the original untimely objections nor the party opposing the untimely preliminary objections to untimely preliminary objections in its response has acknowledged or pointed out that the preliminary objections raising the untimeliness of the preceding preliminary objections are themselves untimely. Cf. Yesavage, 653 A.2d at 1324 n.8 (“The proper method for challenging the propriety of a preliminary objection is by a preliminary objection to a preliminary objection.”).

The court is within its discretion either to dismiss the parties’ respective untimely preliminary objections or to address them on their merits, whether or not the opposing party has raised the procedural defect. See Ambrose v. Cross Creek Condos., 412 Pa. Super. 1, 11, 602 A.2d 864, 868 (1992) (holding trial court was within its discretion in refusing to strike preliminary objections based on brief delay in their filing); Delgrosso v. Gruerio, 255 Pa. Super. 560, 389 A.2d 119 (1978) (upholding order reinstating default judgment and dismissing preliminary objections filed one day beyond period trial court had allowed under Pa.R.C.P. 1003 in prior order opening judgment); see also Vision Serv. Plan v. Pa. AFSCME, 326 Pa. Super. 474, 474 A.2d 339, appeal after remand, 331 Pa. Super. 217, 480 A.2d 322 (1984) (affirming refusal to open default judgment entered against defendant who tried to file preliminary objections without a supporting brief one day beyond extension granted by plaintiff’s counsel); cf. Peters Creek Sanitary Auth. v. Welch, 545 Pa. 309, 681 A.2d 167 (1996) (finding no abuse of discretion in trial court’s grant of plaintiff’s oral motion to strike answer to complaint as late under Pa.R.C.P. 1026(a) despite plaintiff’s failure to move for judgment by default and establishing that party filing late pleading must show just cause for delay before opponent must show prejudice from lateness); McCullough v. Clark, 784 A.2d 156, 158 (Pa. Super. Ct. 2001) (Eakin, J.) (“Where the untimely filing of preliminary objections is not excused and would prejudice the opponent, those obj ections must be dismissed as waived.... The [opponent] need not establish prejudice in order to prevail; the burden is on the defendant to provide a basis for the untimely motion.” (citation omitted)). The conundrum is we could not address both sets of preliminary objections on their merits, because if we were to grant plaintiff’s preliminary objections to AAA’s preliminary objections and strike the latter, plaintiff’s preliminary objections subject to the same objection as AAA’s would prevail; and then what would become of AAA’s perfectly valid objection to plaintiff’s facially invalid verification to the complaint?

To restore order to this muddled state of the pleadings, we choose to proceed, and hereby order, as follows: AAA’s preliminary objections and plaintiff’s preliminary objections to AAA’s preliminary objections are both dismissed as untimely filed under Pa.R.C.P. 1026(a). However, despite dismissing AAA’s preliminary objections raising plaintiff’s attorney’s improper verification to the complaint, we also strike the verification. Cf. Giuliana, 829 A.2d at 344 (alternative holding) (“[T]he requirement of a verification is not waivable because without it a pleading is mere narration, and amounts to nothing.” (emphasis added)); Signora v. Kaplan, 33 Pa. D.&C. 4th 219 (C.P. Del. County 1996) (filing of answer and petition to open default judgment verified by counsel rather than parties failed to plead meritorious defense adequate to open judgment under Pa.R.C.P. 237.3), aff’d per curiam, 718 A.2d 355 (Pa. Super. Ct. 1998). Plaintiff shall have the right to file a substituted verification complying with Pa.R.C.P. 1024, and, if necessary for purposes of the substituted verification, an amended complaint, within twenty days of notice of this order, or face entry of judgment of non pros under the procedures set forth in Pa.R.C.P. 237.1. Within twenty days of plaintiff’s service of a substituted verification and/or an amended complaint filed in response to this order, AAA shall have the right to plead over to the complaint or amended complaint, as the case may be.


author: ANDERSON, J.,

text:
    Vision Inv. Props., LLC v. Lattin

      C.P. of Lycoming County,
    No. 13-03, 112
    March 5, 2015
   ANDERSON, J.,

Before the court is plaintiff’s request for specific performance of an agreement of sale for the sale of real estate, in particular, the property at 75 Crestmont Street, Cogan Station, Pennsylvania. The parties executed the agreement but defendant then refused to complete the transaction. A trial was held on March 3, 2015. The matter is now ripe for decision and the court enters the following:

FINDINGS OF FACT

1. Defendant is the record owner of the property at 75 Crestmont Street, Cogan Station, Pennsylvania, identified as Lycoming County tax parcel 15-02-609.

2. The property was scheduled to be sold at the tax sale on September 11, 2013, for unpaid real estate taxes.

3. On August 22, 2013, defendant contacted real estate broker Robert Boob and asked him to market the property.

4. Mr. Boob met with defendant on August 23,2013, to discuss the matter and then on August 28, 2013, he listed the property for $165,000. Although the condition of the property (it needed extensive repairs) supported a listing of only $80-90,000, defendant wanted to sell the property for $160-200,000.

5. Mr. Boob contacted the tax claim office and was told the sum of $4,600 was required to stop the tax sale. Mr. Boob advised defendant to attempt to raise the money as avoiding the tax sale was preferable to selling under the restricted circumstances imposed by the imminent tax sale.

6. In the two weeks between the listing and the tax sale, 6 to 8 people looked at the property but no offers were made. Mr. Boob contacted a few people who indicated they would simply wait and buy it at the tax sale.

7. Mr. Boob then contacted Willard Jones, owner of plaintiff company, based on previous contacts he had had with him and his knowledge that the company bought properties, fixed them up and sold them. Mr. Jones looked at the property on September 9, 2013.

8. Mr. Jones submitted, through Mr. Boob, a written offer to buy the property for the sum of $35,000, out of which he agreed to immediately pay $4,600 to the tax office to stop the tax sale. Closing was proposed for October 10, 2013. The agreement noted that the sale was “as is” as there was no time to obtain inspections.

9. Mr. Boob presented the agreement of sale to defendant that same day, and also presented to him a written summary of estimated net proceeds. Because of outstanding inheritance tax and other obligations, defendant would net about $10,000 from the sale.

10. Defendant signed the agreement of sale on September 9, 2013. A copy of the agreement was emailed to defendant’s attorney, who was asked to prepare the deed.

11. On September 10,2013, the day before the tax sale, Mr. Jones paid the $4,600 to the tax office, through the title company. The property was not sold at the tax sale as a result.

12. Defendant’s attorney prepared the deed in anticipation of the closing.

13. Defendant did not respond to his attorney’s efforts to have him sign the deed. Apparently he changed his mind once the property was no longer subject to being sold for taxes. Instead, through his attorney, he threatened Mr. Boob with criminal prosecution for an alleged trespass based on Mr. Boob’s having entered the property when looking for defendant to inquire about why he had not yet signed the deed. Defendant offered to not press charges in exchange for declaring the agreement “null and void.”

14. The closing did not take place and on December 16, 2013, the instant action was commenced.

DISCUSSION

Plaintiff seeks to enforce the agreement of sale. Defendant raises two defenses: first, that he was “tricked” by Mr. Boob; that is, that Mr. Boob told him the agreement provided for a sales price of $135,000 and he would net $110,000, rather than $35,000 and $10,000, and second, that the agreement cannot be enforced as it is unconscionable.

As for the contention that defendant was “tricked” into signing the agreement, the court finds defendant’s supporting testimony not credible. It is clear from the evidence that defendant agreed to sell his property for $35,000 in order to realize some amount from the sale, rather than taking the chance that he would realize nothing from the tax sale.

Defendant’s assertion of unconscionability has two prongs: procedural unconscionability and substantive unconscionability. Procedural unconscionability refers to the process by which the agreement is reached, and here, defendant argues that he was “in dire need of money” and plaintiff took advantage of that fact. Pressure from circumstances does not alone invalidate a transaction, however. Duress is defined as “that degree of restraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness.” Strickland v. University of Scranton, 700 A.2d 979, 986 (Pa. Super. 1997). Simply being faced with an unpleasant choice does not establish duress in the legal sense. Id. It is clear that any pressure which led defendant to enter the agreement was caused by his failure to pay the taxes on his property and his decision to wait until two weeks before the sale to attempt to sell the property. Plaintiff had nothing to do with defendant’s situation and the court cannot find any procedural unconscionability.

Defendant also argues the agreement of sale is substantively unconscionable based on the disparity between the agreement price of $35,000 and what he contends is the market value of $154,625. First, there was enough evidence of the property’s deficiencies to call into serious question defendant’s estimate of market value. Second, and more importantly, inadequacy of consideration is not grounds for refusing to grant a request for specific performance of an agreement of sale. Stuart v. McChesney, 444 A.2d 659 (Pa. Super. 1982). The objector must show fraud or unfairness in the transaction sufficient to make it inequitable to compel performance. Id. Here, no fraud has been shown and, considering all the circumstances, the court cannot find unfairness. It is not uncommon for a property to be sold for less than fair market value in a “distress” sale. Defendant’s actions led to such a situation.

Accordingly, the court draws the following:

CONCLUSIONS OF LAW

1. The agreement of sale is not unconscionable.

2. Plaintiff is entitled to specific performance of the agreement.

VERDICT

And now, this 5th day of March 2015, for the foregoing reasons, plaintiff’s request for specific performance of the agreement of sale dated September 9, 2013, is hereby granted. Defendant’s attorney shall arrange a closing, to be held within thirty days of this date, in accordance with the terms of the agreement. Defendant is directed to sign the deed which has already been prepared and if he fails to do so, the prothonotary is hereby authorized to sign the deed on his behalf.

      . Defendant claimed he could not see the written documents which were presented to him for his signature as he did not have glasses at that time.

      . Defendant bases this figure on the assessed value of $123,700, multiplied by a common level ratio of 1.25.


author: GRAY, J.,

text:
    Asiello v. Bratton

      C.P. of Lycoming County,
    No. 12-01,986

      Bernard R. Rizza and Craig E. Frischman, for plaintiffs.

      Lauralee B. Baker and Darlene K. King, for defendants.
    March 31, 2015
   GRAY, J.,

Before the court are cross-motions in limine seeking to preclude or limit evidence. Upon agreement of the parties, defendants’ motions in limine are moot. Upon review of the plaintiff’s motion, briefs and arguments of counsel, the court rules in part and reserves ruling in part on plaintiff’s motion. The court provides the following opinion in support of its decision.

Factual Background

This matter involves medical professional negligence claim for the treatment of Mr. Albert Asiello following an injury he sustained on July 30, 2010. Mr. Asiello contends that a delay in diagnosis caused him to suffer acute and profound paralysis and that he remained largely paraplegic and wheelchair bound for about a year. Mr. Asiello continues to suffer from motor and sensory deficits and decreased kidney function which affect him. Trial is scheduled for April 27, 2015.

On February 6, 2015, defendant Collier B. Nix, M.D. and Family Practice Center, P.C., (collectively, Dr. Nix) filed an omnibus motion in limine containing three motions to preclude or limit evidence. Since the parties reached an agreement with respect to defendants’ motions as recited in note 1, defendants’ motions in limine are moot and will not be discussed further. On or about February 10, 2015, plaintiff filed a motion in limine seeking to preclude defendants’ experts from testifying as to the standard of care provided by defendant. Argument was held on March 17, 2015.

Discussion

Plaintiff seeks to preclude defendants’ experts, Jonathan Zenilman, M.D. and Alexander Vaccaro, M.D., from testifying about the standard of care provided by Dr. Nix on two grounds. First, plaintiff contends that Dr. Zenilman and Dr. Vaccaro do not meet the requirements to provide standard of care testimony under 40 P.S. § 1303.512(c). Second, plaintiff contends that the standard of care testimony of Dr. Zenilman and Dr. Vaccaro should be precluded as cumulative. The court will address the grounds in turn.

1. Qualifications to Provide Standard of Care Testimony

Plaintiff contends that Dr. Zenilman and Dr. Vaccaro do not meet the requirements to provide standard of care testimony against Collier B. Nix, M.D., a board certified family physician. In medical malpractice matters, the Pennsylvania Medical Care Availability and Reduction of Error Act (MCARE Act), 40 Pa. Stat. Ann. §§ 1303.101 — 1303-910, provides specific requirements for the admissibility of expert testimony. 40 P.S. § 1303.512. The MCARE Act provides specific requirements for medical expert testimony on the standard of care in medical malpractice matters as follows.

(c) STANDARD OF CARE. — In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician’s standard of care also must meet the following qualifications:
(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.
(2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e).
(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).
(d) CARE OUTSIDE SPECIALTY. — A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that:
(1) the expert is trained in the diagnosis or treatment of the condition, as applicable; and
(2) the defendant physician provided care for that condition and such care was not within the physician’s specialty or competence.
(e) OTHERWISE ADEQUATE TRAINING, EXPERIENCE AND KNOWLEDGE. — A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period. 1303.512 (c),(d),(e) (emphasis added).

For expert testimony on the standard of care in medical malpractice matters, the MCARE Act requires a “three part test in which each basis must be established.” Rose v. Annabi, 2007 PA Super 308, 934 A.2d 743, 746 (Pa. Super. 2007); see also, Vicari v. Spiegel, 605 Pa. 381, 388, 989 A.2d at 1281, 1282 (Pa. 2010) (each of the three Section 512(c) requirements (standard-of-care-familiarity, same-subspecialty, and board-certification) is mandatory). Under the plain terms of the statute, if an expert does not meet the same-subspecialty requirement, the expert is not qualified to render an opinion on standard of care unless the expert meets an exception as provided in subsection (d) or (e). If an expert does not meet the same board-certification requirement, the expert is not qualified to render an opinion on standard of care unless the expert meets an exception as provided in subsection (e) only. Defendants contend that both their experts fall under the exceptions (d) or (e) to the same subspecialty and board certification requirements and therefore are qualified to testify regarding the standard of care in diagnosing and treating epidural abscesses.

Same-subspecialty

Pursuant to the MCARE Act, Section 512(c)(2) (same-subspecialty) requirement, the experts must practice in “the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e).” In the present case, neither proposed expert practices as a family physician.

As to Dr. Zenilman, the court believes that Dr. Zenilman satisfies the same-subspecialty requirement because he practices internal medicine, with a substantially similar standard of care as the specific care at issue. At argument, plaintiff conceded that the only significant difference between the specialties is that a family practitioner also provides care to pediatric patients. Mr. Asiello was a 63 year old adult at the time of the accident. The court concludes that Dr. Zenilman practices in “a subspecialty which has a substantially similar standard of care for the specific care at issue” and therefore meets the Section 512(c)(2) same sub-specialty requirement. This conclusion is without prejudice to either party, who may re-raise the issue based upon evidence at trial or voir dire of the experts.

Subsection (d)

As the express terms of Section 512 (d), the subsection applies only where the defendant physician provided care that was not within the physician’s specialty or competence. Here, it is not clear from the paper record that the defendant physician provided care for a condition that was not within the physician’s specialty or competence, i.e., that of a family physician. As a result, the court does not believe that the exception under subsection (d) applies. The court makes this ruling without prejudice to defendants, who may re-raise the issue based upon evidence at trial or voir dire of the experts. The court will discuss the exception under subsection (e) in the discussion of the board certification requirement.

2. Board Certification.

Pursuant to the MCARE Act, Section 512(c)(3) (board certification) requirement, the experts must share the same board certification as the defendant physician to testify as to the standard of care at issue. In the present case, it is uncontested that neither expert shares the board certification with the defendant physician, Dr. Nix. Dr. Zenilman and Dr. Vaccaro are not board certified family physicians; Dr. Zenilman is a board certified infectious disease physician (internal medicine with a subspecialty board certification in infectious diseases.) Dr. Vaccaro is a board certified orthopedic neurosurgeon. Since it is uncontested that the experts do not share the same board certification as Dr. Nix, they must fall under exception (e) to qualify under the MCARE Act to provide standard of care testimony. See, Anderson v. McAfoos, 618 Pa. 478, n.5 (Pa. 2012)(recognizing subsection (e) as the sole exception to the board-certification requirement).

At this stage in the proceedings, the court is concerned that the record is insufficient to support a conclusion with respect to subsection (e). See, Vicari, supra, Gbur v. Golio, 600 Pa. 57, 963 A.2d 443, 452 (Pa. 2009) Exception (e) does not define the term “related field of medicine.” Vicari, supra. The Pennsylvania Supreme Court has explicitly held the following.

[T]he “relatedness” of one field of medicine to another for purposes of subsection 512(e) cannot be established in a broad and general sense that will henceforth be applicable to all situations and all claims. Rather, the “relatedness” of one field of medicine to another, under subsection 512(e), can only be assessed with regard to the specific care at issue. Two fields of medicine may be “related” with respect to certain specific issues of care, but unrelated with respect to other specific issues of care. Determining whether one field of medicine is “related” to another with respect to a specific issue of care is likely to require a supporting evidentiary record and questioning of the proffered expert during voir dire. This interpretation of “related field of medicine” is most compatible with the text of subsection 512(e) as a whole, which sets forth an exception to the formal same specialty and same board certification rules for experts otherwise qualified to testify. Vicari, supra, 989 A.2d at 1284.

In the present case, the plaintiff seeks a ruling pretrial. Defendants did not submit an affidavit or verified statement from either of the experts. The experts have not been subject to voir dire. In their brief, defendants submit that both their experts will testify as follows.

[T]hey are familiar with standard of care for the diagnosis and treatment of epidural abscess. Both physicians will testify that they are trained in the diagnosis and treatment of the condition, that they have training, experience and knowledge of epidural abscess, and that they have provided treatment for patients with the condition and have done so repeatedly during the course of their medical careers. Defendants Brief, at 3.

The experts’ proposed testimony does not specifically state that their training, experience and knowledge is “as a result of active involvement in ... medicine in the applicable subspecialty or a related field of medicine.” 40 P.S. § 1303.512(e). In light of the Pennsylvania Supreme Court’s decision in Vicari, supra, and Gbur, supra, the court defers ruling on the applicability of the exception in subsection (e) until voir dire of the experts and further development of the record.

3. Cumulative Testimony

Plaintiff next contends that Dr. Zenilman and Dr. Vaccaro should be precluded from testifying as to the standard of care of Dr. Nix because such testimony is needlessly repetitive, cumulative evidence prohibited by Pa. R.E. 403. Rule 403 provides that “[t]he court may exclude relevant evidence if its probative value is outweighed by a danger of... needlessly presenting cumulative evidence.” The Pennsylvania Supreme court has stated that Rule 403 determinations are “generally not susceptible to accurate pre-trial evaluation.” Commonwealth v. Hicks, 91 A.3d 47, 53 (Pa. 2014) While the Pennsylvania Supreme Court has not prohibited a Rule 403 determination through pretrial motions, the court has stated that most cases require that the evaluation wait until the trial unfolds. Specifically the court provided the following.

In the majority of cases, and particularly manifested in this one, the trial court has no way of knowing beforehand exactly what evidence will be presented at trial. Depending on the case and the inevitable vagaries of litigation, the pre-trial record may be entirely different than the record that eventuates as matters unfold. Even if the evidence the parties intend to present is set, a trial rarely follows the anticipated script. The actual value of evidence may differ substantially from pre-trial expectations, depending on all manner of factors, such as the availability, appearance, memory, or demeanor of a witness, admissions on cross-examination, the defense theory, or the defendant’s decision whether or not to testify. Even a relatively developed pre-trial record will be of limited utility in predicting the probative value or prejudice a particular piece of evidence will ultimately have. Hicks, supra, 91 A.3d at 53.

In the present case, defendants listed three experts who will provide testimony as to a physician’s standard of care. In addition, it is anticipated that the totality of the defendant’s testimony will offer a standard of care defense. Thus, the plaintiff asserts that four experts on standard of care are cumulative. In response, defendants claim that the experts can offer testimony from different perspectives in a non-overlapping, non-cumulative way. As in Hicks, supra, the court believes that the witnesses and evidence may differ at trial from that anticipated. Defendants have indicated that what experts are called to testify will likely depend upon availability. Without hearing any testimony it is difficult to predict whether testimony will overlap. Therefore, the court will reserve ruling on the objection to Dr. Zenilman and Dr. Vaccaro’s standard of care testimony pursuant to Rule 403 until the time of trial.

ORDER

And now, this 31 st day of March, 2015, for the foregoing reasons, it is ordered and directed as follows.

1. Defendant’s motion in limine is moot in light of the agreement by counsel to limit the evidence.
2. Plaintiff’s motion in limine to preclude defendants’ experts from testifying as to standard of care based upon the failure to meet the requirements for such testimony under the MCARE Act is denied in part as to Dr. Zenilman as to 512(c)(2), and reserved in part for trial in part.
3. Plaintiff’s motion in limine to limit the defendants’ expert testimony on standard of care as being cumulative is reserved. Plaintiff may re-raise the objection at trial when it is clearer which witnesses will indeed be called to testify and when the scope of the other testimony has been developed.

      . In the first motion, defendants seek to preclude hearsay opinion evidence by plaintiff’s friend, who is also a registered nurse. In the second motion, defendants seek to preclude certain opinions of plaintiff’s expert neurologist, Karen Roos, M.D. In the third motion, defendants seek to preclude statements made by medical providers to plaintiff and his son about plaintiff’s health and/or condition. Plaintiff agrees not to present inadmissible hearsay evidence of statements made to plaintiff or plaintiff’s son and plaintiff agrees not to present opinion evidence of Nurse Terri Narin. Defendants agree that plaintiff’s expert, Dr. Karen Roos, may testify as to her opinion on causation and etiology and may testify generally as to the records upon which she relied upon in making her opinions with respect to those which are generally relied upon in her field. Plaintiff agreed that Dr. Roos will provide her own opinion based upon empirical evidence and not provide the specific opinion of Dr. Bias, unless the door is opened to such testimony.