author: O’CONNOR, Member,

text:
    Office of Disciplinary Counsel v. Harris
    Disciplinary Board Docket no. 150 D.B. 2002.

      April 16, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

O’CONNOR, Member,

— Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On November 14, 2002, petitioner, Office of Disciplinary Counsel, filed a petition for discipline against Chauncey Harris, respondent. The petition alleged that while on inactive status, respondent engaged in the practice of law. Respondent filed an answer to petition for discipline on April 11, 2003.

A disciplinary hearing was held on June 26,2003, before Hearing Committee 1.22 comprised of Chair Shelley R. Smith, Esquire, and Members Michael D. Schaff, Esquire, and Warren E. Kampf, Esquire. Respondent appeared pro se. Petitioner offered stipulations and 11 exhibits. Respondent offered his own testimony and called one character witness.

The committee filed a report on January 9,2004, finding that respondent violated the Rules of Professional Conduct and Rules of Disciplinary Enforcement as charged in the petition for discipline, and recommending that respondent be suspended for a period of one year and one day.

Neither party filed exceptions to the report and recommendation of the Hearing Committee.

This matter was adjudicated by the Disciplinary Board at the meeting of March 10, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, PA is invested, pursuant to Pa.R.D.E. 207, with the power and duty to investigate all matters involving alleged misconduct of any attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.

(2) Respondent was born in 1950 and was admitted to practice law in the Commonwealth of Pennsylvania in 1990. His last registered address for the practice of law is 1007 Spring Garden Street, Philadelphia, PA 19123. He currently resides at 6929 Sherman Street, Philadelphia, PA 19141. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has a prior history of discipline consisting of an informal admonition administered in 1998 and an informal admonition administered in 2000.

. (4) Respondent was transferred to inactive status on three separate occasions: from December 16, 1995 to December 27, 1995, for failure to pay his annual attorney registration fee; from August 21,1999 to November 30,2001, for failure to complete CLE requirements; and from December 1,2002 to the present, for failure to pay his annual attorney registration fee.

(5) By order dated July 22.1999, effective August 21, 1999, the Supreme Court of Pennsylvania transferred respondent to inactive status pursuant to Rule 111(b), Pa.R.C.L.E. for failure to meet his Pennsylvania Continuing Legal Education requirements.

(6) By certified letter dated July 22,1999, with enclosures, the Disciplinary Board secretary notified respondent of the entry of the transfer order and his obligation to comply with the Supreme Court’s Enforcement Rules and the Disciplinary Board Rules pertaining to attorneys transferred to inactive status.

(7) On July 26, 1999, respondent signed the certified mail, domestic return receipt card for the letter.

(8) Respondent did not file a statement of compliance with the board secretary within 10 days after the effective date of his transfer to inactive status, as required by Pa.R.D.E. 217(e).

(9) By certified letter dated September 22, 1999, the Office of Disciplinary Counsel reminded respondent of the entry of the transfer order and advised him that until such time that he was reinstated from the inactive list to the active list, he was prohibited from practicing law or holding himself out to the public as an attorney.

(10) By October 17, 2000, respondent completed enough Pa. CLE approved courses to satisfy the delinquency and to bring himself current for the 2000 requirements, but the CLE board had not certified that respondent was eligible to be reinstated to the active list because respondent did not comply with Pa. CLE regulations in that he did not submit a written request to the Pa. CLE board to certify to the Disciplinary Board that he was CLE compliant.

(11) During his term of inactive status, respondent held himself out as an attorney, in that he maintained an office at 1007 Spring Garden Street with a three-foot by three-foot sign stating “Law Office of Chauncey Harris, Esquire.”

(12) On April 11,2001, respondent accepted a fee from Mohammed Najibi to represent him in traffic court. Respondent presented Mr. Najibi with a business card stating “Law Offices of Chauncey Harris, Attorney at Law. 1007 Spring Garden Street, Philadelphia, PA 19123 (215) 769-9850 Fax (215) 769-7056.”

(13) Respondent did not advise Mr. Najibi that he was on inactive status and proceeded to obtain a date for Mr. Najibi’s traffic court hearing.

(14) On June 30,2001, respondent filed his 2000-2001 PA Attorney’s Annual Fee Form and attempted to pay the annual assessment, but the attorney registrar returned respondent’s check and informed him by letter of September 28, 2001, that she was processing respondent’s registration as inactive because the CLE board had not certified respondent as being in compliance with the CLE board’s rules and regulations.

(15) On October 27, 2001, respondent filed a statement of compliance. On November 12, 2001, respondent became CLE compliant.

(16) By letter of November 20, 2001, Daniel Levering, administrator for the CLE board, advised Elaine Bixler, secretary of the Disciplinary Board, that respondent had complied with the Pa. CLE board’s rules and regulations.

(17) By letter to respondent dated November 21,2001, Suzanne E. Price, attorney registrar, advised respondent that the Pa. CLE board had certified his compliance with the rules and regulations and Ms. Price requested that respondent pay his registration fee.

(18) OnNovember 30,2001, respondent was returned to active status.

(19) On December 1,2002, respondent was transferred to inactive status for failure to pay his 2002-2003 attorney registration fee.

(20) To date, respondent has not been reinstated to active status.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:

(1) R.P.C. 5.5(b) — A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

(2) R.P.C. 7.1 (a) — A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

(3) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(4) Pa.R.D.E. 217(d) — which provides that “[t]he formerly admitted attorney, after entry of the... transfer to inactive status order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature . . . via Pa.R.D.E. 203(b)(3), which provides that the willful violation of any other provision of the Enforcement Rules shall be grounds for discipline.

(5) Pa.RJD.E. 217(e) — Failing to file a compliance statement within 10 days after the effective date of the transfer to inactive status order.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline charging respondent with practicing law while on inactive status. Respondent entered into stipulations with petitioner and stipulated to the facts as alleged in the petition and further stipulated that he violated the Rules of Professional Conduct and Rules of Disciplinary Enforcement. The only remaining issue is the discipline to be imposed.

Respondent’s unauthorized practice of law was limited to one client matter. However, respondent continued to hold himself out as eligible to practice, advertising his services with a large sign. Respondent’s pattern of failing to fulfill his continuing legal education credits and failing to pay his attorney registration fee evidences a general neglect of his professional responsibilities. Respondent vacillated between active and inactive status for several years. He is currently on inactive status and has not attempted to become current with his educational credits or pay his registration fees. Respondent expressed remorse but admitted that he is not ready to come back to the practice of law. He evidenced a distinct disinterest in the practice of law and expressed a need to resolve some unspecified personal problems. He hopes to move to Washington, D.C. where he has family connections. Additionally, respondent has a prior history of discipline of two informal admonitions. The totality of the evidence suggests that respondent is not fit to practice law at this time.

Prior cases of unauthorized practice of law have resulted in a range of discipline. A series of relatively recent decisions by the Supreme Court illustrates that such misconduct will result in suspension. In the matter of In re Anonymous No. 123 D.B. 96, 41 D.&C.4th 290 (1998), an attorney was on inactive status due to CLE noncompliance, yet he filed his appearance in a civil suit. The attorney continued to handle the matter up until the day before his disciplinary hearing. He was suspended for six months. In the case of In re Anonymous No. 123 D.B. 2000, 782 disciplinary docket no. 3 (Pa. Nov. 25, 2002), the attorney was placed on inactive status for CLE noncompliance but failed to notify his clients and continued using letterhead that held him out to be a practicing attorney. He had a prior disciplinary history of two informal admonitions. The court suspended him for a period of one year and one day. In the matter of In re Anonymous No. 118 D.B. 2000, 743 disciplinary docket no. 3 (Pa. June 13, 2002), the attorney was placed on inactive status due to both CLE noncompliance and failure to pay his annual attorney registration fee. The attorney proceeded to take a case while on inactive status and was negligent in his responsibilities to his client. He had no prior discipline. The court imposed a suspension of one year and one day.

It is clear from the outcomes of the above cases that the Supreme Court takes a dim view of attorneys who practice law while on inactive status. Certainly attorneys who engage in such activity are causing harm to their unsuspecting clients and to the general public.

For these reasons the board recommends that respondent be suspended from the practice of law for a period of one year and one day.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Chauncey Harris, be suspended from the practice of law for a period of one year and one day.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Peck recused in this matter, and Board Member Brown did not participate in the March 10,2004 adjudication.

ORDER

And now, July 15, 2004, upon consideration of the report and recommendations of the Disciplinary Board dated April 16,2004, it is hereby ordered that Chauncey Harris be and he is suspended from the bar of this Commonwealth for a period of one year and one day, and he shall comply with all the provisions of Rule 217, Pa. R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


source: Caselaw Access Project

author: WALLITSCH, J.,

license: Public Domain

text:
    Schweikert v. Saint Luke’s Hospital of Bethlehem, Pa.

      C.P. of Lehigh County,
    no. 2001-C-0096V, consolidated with no. 2002-C-107.

      John J. Speicher, for plaintiffs.

      Paul F. Laughlin, for defendant St. Luke’s Hosp.
    November 8, 2004
   WALLITSCH, J.,

There are two issues in this motion for post-trial relief filed by plaintiffs. First, plaintiffs claim that the trial judge erred in striking the proffered testimony of plaintiffs’ expert because his testimony went beyond the “four corners” of his expert report and because the theory of liability of the testimony was not disclosed in plaintiffs’ complaint. The second issue is whether the trial judge erred in overruling plaintiffs’ counsel’s objection to a portion of defense attorney’s closing argument. For the reasons set forth herein, we find no merit in either of plaintiffs’ arguments.

On March 20, 2001, plaintiffs filed a complaint against Saint Luke’s Hospital of Bethlehem, Pennsylvania, t/a/d/b/a St. Luke’s Hospital — Allentown Campus and St. Luke’s Health Services Inc. (hospital), her surgeon, Matthew L. Montgomery MD, and Dr. Montgomery’s private medical practice, Toselli & Brusko Surgical Associates Ltd. Subsequently, plaintiff filed an additional lawsuit claiming that Visiting Nurses of Lehigh Valley Inc., through its employees, was also professionally negligent. This corporation is not affiliated with the hospital, nor with Dr. Montgomery or his group. These two actions were consolidated for purposes of discovery and trial but, prior to trial, Visiting Nurses and Dr. Montgomery, along with his medical group, settled their actions with plaintiff. The trial against the hospital alone began on July 12, 2004. On July 14, 2004, the jury returned a defense verdict, to which plaintiff filed timely post-trial motions.

The relevant facts underlying these actions are as follows. On January 10,1999, plaintiff admitted herself to the emergency room of the hospital, complaining of severe abdominal pain and vomiting. She was diagnosed with a life-threatening condition, acute calculous cholecystitis and necrotizing pancreatitis. On that date, Dr. Montgomery performed an open abdominal surgery for this condition and, two days later on January 12, 1999, performed a second surgery. In both procedures, after the closure of the fascia, the external portion of the wound had to be left open but fully packed with dressing material so that it could heal from the inside out. Plaintiff remained at the hospital until January 27,1999, when she was discharged. Upon discharge from the hospital, Visiting Nurses visited plaintiff in her home on a daily basis in order to cleanse the wound and replace the dressings. On March 12,1999, she underwent another operative procedure at the hospital for the removal of her peritoneal dialysis catheter and the removal of an abdominal drain.

In the following year, plaintiff began to exhibit certain symptoms which led to a further surgical procedure on February 2, 2000, when a small piece of sponge was removed from the subcutaneous area. Plaintiff claimed that one or more of these defendants was responsible for leaving that sponge in her body which, she claimed, caused her injury.

After Visiting Nurses and Dr. Montgomery settled with plaintiff, the trial date in this matter was established. On July 6, 2004, in preparation for trial, plaintiff took the videotape deposition of Dr. Eric Munoz. Dr. Munoz had previously prepared two expert reports, one dated April 29,2002, and one dated April 19,2004. In his April 2002 report, he stated:

“(1) What are the various scenarios for the sponge material to have been left inside of Mrs. Pati Ann Schweikert?
“Although it is difficult to state exactly when the material (i.e., sponge) was left inside the patient’s abdomen cavity, this most likely occurred during the surgical operations (procedures) in January and March of 1999.
“It is also possible that during the wound care of her infected abdominal wound during 1999 by the Visiting Nurses, foreign material (i.e., sponges) could have been pushed into the abdominal wound and/or cavity by the Visiting Nurses.”

In his April of 2004 report, Dr. Munoz merely discussed the hospital’s “perioperative” policies regarding sponge counts.

However, when Dr. Munoz appeared for his trial deposition, he attempted to testify that “[m]y opinion is that either during the surgical procedures of January 10 or January 12, 1999, or during her period in the hospital from January 10, 1999 ’til January 27, 1999, or while she was being treated by the Visiting Nurses during 1999, that sometime during that period or during that, you know, initial period, something was either left inside her abdominal cavity or inside her wound that caused this problem.” (emphasis added) Counsel for the hospital objected to the testimony emphasized above and I agreed with the defense that Dr. Munoz was attempting to add a third theory of liability that had not been disclosed in plaintiff’s complaint or expert reports. Therefore, l precluded his testimony from being offered at trial.

First of all, Dr. Munoz’ proffered trial testimony identified three distinct scenarios as to when the sponge that was later found was left in plaintiff’s abdomen: (1) The sponge was left by the surgical staff during the plaintiff’s surgeries of January 10 or January 12,1999; or (2) the sponge was left by the hospital’s nursing staff while they cared for plaintiff after her surgeries but before her discharge from the hospital; or (3) the sponge was left by the Visiting Nurses who cared for plaintiff in her home after she was discharged from the hospital. However, plaintiff’s pleadings and expert reports had identified only scenarios (1) and (3). The claim that the hospital’s nurses left the sponge during the plaintiff’s postoperative treatment in the hospital was never disclosed in plaintiff’s pleadings or expert reports.

The law in Pennsylvania is clear, since the pleadings define the scope of the relief available to a plaintiff, a material variance between the allegations in the complaint and the theory offered at trial will result in the preclusion of the new theory. Reynolds v. Thomas Jefferson University Hospital, 450 Pa. Super. 327, 676 A.2d 1205 (1996), appeal denied, 549 Pa. 703, 700 A.2d 442 (1997). Plaintiff’s complaints in the two consolidated actions clearly and repeatedly assert that the sponge in question was left in plaintiff’s abdomen either during the surgeries in January or March, 1999, or during the post-discharge care provided by Visiting Nurses. In her complaint against the hospital and Dr. Montgomery, plaintiff asserted the following:

“(45) Defendant, Dr. Montgomery, was negligent in his care and treatment of Pati Ann Schweikert, which negligence includes the following:
“(a) In causing and/or allowing a sponge and/or tantalum clip to be left in Pati Ann Schweikert while performing a surgical procedure on her on either January 10 or 10 [sic] and/or March 12,1999;
“(b) In failing to recognize the immediate danger presented to plaintiff, Pati Ann Schweikert, by leaving a surgical sponge and/or tantalum clip inside of her during a surgical procedure;
“(c) In failing to properly treat Pati Ann Schweikert during the surgeries by failing to recognize that a sponge and/or tantalum clip were left in her abdominal cavity;...
“(59) Defendant, St. Luke’s is liable for the losses of the plaintiff, Pati Ann Schweikert, as hereinabove set forth as a direct and proximate result of the negligence of Dr. Montgomery and the staff and agents of Toselli & Brusko Surgical Associates Ltd., as herein set forth together with its own negligence through the conduct of its staff, agents and employees, which negligence includes the following:
“(a) In failing to do a proper count for surgical sponges and tantalum clips at the close of the surgical procedures performed on Pati Ann Schweikert on January 10,1999 and/or January 12,1999, and/or March 12, 1999;
“(b) In failing to recognize that a sponge and/or tantalum clip was left in the abdominal cavity of Pati Ann Schweikert at the close of one or more of the surgical procedures as hereinabove set forth;
“(c) In failing to recognize that the symptoms that Pati Ann Schweikert continued to exhibit post-surgically after January 10, 1999, was consistent with a serious and growing infection which may have been caused, in whole or in part, by the presence of foreign bodies including the surgical sponge and/or tantalum clip;
“(d) In failing to properly supervise its physicians, nurses, technicians, and other staff present at the surgical procedures to prevent them from leaving a surgical sponge and/or tantalum clip inside Pati Ann Schweikert’s abdominal cavity;
“(e) In failing to warn defendant, Dr. Montgomery, of the fact that a surgical sponge and/or tantalum clip were left inside plaintiff’s abdominal cavity during one or more of the surgical procedures performed in January and March of 1999;
“(f) In negligently reporting that a correct sponge and/ or tantalum clip count had been performed during the January 10,1999 surgical procedure;
“(g) In failing to properly diagnose and treat the abdominal infection of Pati Ann Schweikert following the January 10, 1999 surgical procedure and continuing thereafter.” (emphasis added)

It is clear that plaintiff’s complaint against the hospital claimed only that the sponge was a “surgical sponge,” that it had been left “during one or more of the surgical procedures” and that the hospital staff failed to diagnose and treat the infection that resulted when the sponge was left in during surgery. Nowhere does the complaint claim in any fashion that a dressing sponge was left in plaintiff’s abdomen by hospital nurses during the care which followed the surgeries. While the complaint referred to the obligation to count sponges, this allegation related solely to counting sponges during surgery and never disclosed the claim that hospital nurses performing the postoperative hospital care left a dressing sponge (a different kind of sponge) in plaintiff’s body.

Plaintiff’s complaint against Visiting Nurses asserted the second scenario as to when the sponge was left in plaintiff’s abdomen, i.e., when they treated plaintiff’s surgical wound after her discharge from the hospital on January 27, 1999. The only dressing sponge ever mentioned in either complaint was the dressing sponge allegedly left by the Visiting Nurses.

It was not until the trial deposition of Dr. Munoz that the plaintiff’s theory suddenly changed to include the claim that the sponge may have been left during a postoperative period before plaintiff’s discharge from the hospital. It was clear to the undersigned that this was a disingenuous attempt to change the theory of liability due to the fact that plaintiff had settled with Dr. Montgomery and the Visiting Nurses, who were the primary targets of her original theories of liability. Plaintiff’s counsel, in his brief in post-trial motions, argues that I should have exercised my discretion and permitted plaintiff to “clarify” her complaint consistent with Dr. Munoz’ new theory of liability. However, this is not a clarification; it is an added factual allegation, and an added change in theory, asserting a different kind of negligence than the ones previously raised. Plaintiff attempted to interject a new cause of action a week before trial began and after the statute of limitations on such new cause of action had run. Dr. Munoz’ new theory targeted different parties (the surgical staff versus the postoperative nursing staff), based his claim on different conduct (counting surgical sponges versus postoperative wound treatment), and involved different time periods (January 10, 1999, January 12,1999, and March 12,1999, versus the period of January 12 through 27,1999).

Plaintiff contends that subparagraph g. of paragraph 59 of the complaint against the hospital put the hospital on sufficient notice as to the possible claim that its employees acted negligently in the postoperative period. However, that subparagraph refers to diagnosis and treatment of an infection and its only plausible interpretation is that this infection was caused by the sponge left in plaintiff during surgery which is what the preceding six subparagraphs refer to.

Secondly, Dr. Munoz’ two expert reports never disclosed a claim that the sponge later found in plaintiff’s abdomen was left by the hospital’s nurses during postoperative care. Dr. Munoz’ reports merely asserted the two scenarios that had been pled in plaintiff’s complaints against the hospital and Visiting Nurses. In his first report, Dr. Munoz specifically mentioned the surgical operations and the care by the Visiting Nurses. The supplemental report did nothing more than to discuss the hospital’s “perioperative policies” regarding sponge counts and opined that the hospital surgical staff had violated those policies by leaving a sponge in plaintiff’s abdomen. Therefore, it is clear that this new theory that the sponge may have been left by the hospital’s nurses during the postoperative period is outside the scope of the four corners of the reports.

Pennsylvania Rule of Civil Procedure 4003.5(a)(1)(b) requires that a party receiving interrogatories must not only identify her expert, but she also must disclose “[T]he substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” The Pennsylvania Superior Court in Feden v. Consolidated Rail Corp., 746A.2d 1158 (2000 Pa. Super. 40), gives guidance with regard to the “fair scope of the report” issues. As the Superior Court stated, “[t]he purpose of this provision is ‘to avoid unfair surprise by enabling the adversary to prepare a response to expert testimony.’ ” Id. at 1161. Essentially, we are to ask whether the discrepancy between the expert’s pretrial report and his trial (here, videotaped) testimony is of a nature which would prevent the adversary from making a meaningful response or which would mislead the adversary as to the nature of the appropriate response. It is clear that the defense was misled until Dr. Munoz’ deposition as to one of the theories of the plaintiff. Nowhere was there any mention, either in pleadings or in Dr. Munoz’ two reports, that there was a claim that other nurses, not those in the operating room or the Visiting Nurses, were at fault for leaving a sponge in plaintiff’s abdomen. To have permitted Dr. Munoz to give this new theory to a jury would fly in the face of both the pleading requirements and the expert report requirements of our Pennsylvania Rules of Civil Procedure. Accordingly, plaintiff’s post-trial motion on this issue is without any merit.

Plaintiff also claims that a new trial is required because of statements made by defense counsel in closing argument. The hospital’s attorney analogized this case to a case where a fireman saved a trapped woman from a fire, damaged a door in the process, and then was sued. An objection was made by plaintiff’s counsel that this was “hypothetical about a woman who is suing a fireman” and that it had nothing to do with this case. However, although it is hypothetical, it did have something to do with this case. Plaintiff presented at the hospital with acute necrotizing pancreatitis, a deadly condition. All witnesses, including plaintiff’s expert, agreed that the surgical procedures performed by Dr. Montgomery and the hospital staff saved plaintiff’s life. The analogy, therefore, had a reasonable relationship to the case at hand and was not improper.

Plaintiff also claims that defense counsel improperly raised a similar argument at the conclusion of his closing argument when he stated that “Mrs. Schweikert was brought back by superb care at St. Luke’s Hospital.” There was no objection needed to this comment and it was proper in any event.

ORDER

And now, November 8,2004, upon consideration of the post-trial motions filed by plaintiffs, and after argument thereon, said motion for post-trial relief is hereby denied.

      . Since plaintiff Dennis R. Schweikert’s claims are merely derivative of his wife’s claims, I will hereinafter refer to Pati Ann Schweikert as “plaintiff.”


author: GRINE, J.,

text:
    Simon v. Borough of State College

      C.P. of Centre County,
    no. 2004-2538.
    December 21, 2004

      Richard M. Wiener, for plaintiff.

      David B. Lingenfelter, for defendant Strongwell Corp.
   GRINE, J.,

Presently before this court for consideration are the preliminary objections of defendant Strongwell Corporation to plaintiff George J. Simon’s amended complaint. Defendant Strongwell asks this court to dismiss Counts V (negligence), VI (strict liability), and VII (breach of warranties) of plaintiff’s amended complaint in the form of a demurrer or, alternatively, strike said counts of plaintiff’s amended complaint for failure to plead facts, which, if proven, would establish a prima facie case. For the reasons set forth below, this court overrules in part and sustains in part defendant Strongwell’s preliminary objections.

PRELIMINARY DISCUSSION

This case is an action brought against several parties, including defendant Strongwell, for damages for injuries sustained by the plaintiff when he fell into a utility hole. According to the amended complaint, on or about June 21, 2002, plaintiff was walking along the sidewalk abutting the parking lot to The Coppers pizza shop located on the 100 block of Hetzel Street, State College, Centre County, Pennsylvania. While walking, plaintiff fell into a utility hole when a utility box cover collapsed under his weight (170 pounds). Plaintiff’s amended complaint ¶8.

As a result of the fall, plaintiff injured his right knee and required arthroscopic surgery. Plaintiff also sustained injuries to his right ankle and low back. Additionally, plaintiff alleges he suffered from “severe shock to his nerves and nervous system.” Plaintiff’s amended complaint ¶9.

Plaintiff filed his original complaint on June 8,2004, against several parties including defendant Strongwell. Defendant Strongwell filed its first set of preliminary objections on July 2, 2004. By opinion and order of August 18,2004, this court sustained defendant Strong-well’s preliminary objections. The order of August 18, 2004, also granted plaintiff 30 days in which to file an amended complaint. Plaintiff filed an amended complaint on September 13, 2004, and service was made on counsel for defendant Strongwell on October 14, 2004. Defendant Strongwell filed these present preliminary objections on October 28,2004. By order of court dated November 2,2004, defendant Strongwell was ordered to file its brief with this court by November 19, 2004, and plaintiff was ordered to file his brief by December 3,2004. Both parties filed their briefs in a timely manner.

Plaintiff’s amended complaint alleges three claims against defendant Strongwell in negligence, strict liability, and breach of implied and expressed warranties. However, in his brief, plaintiff concedes that the breach of warranty claims he asserted should be dismissed, and this court will accordingly dismiss Count VII of plaintiff’s amended complaint. This court, therefore, need only address defendant Strongwell’s preliminary objections to plaintiff’s claims of negligence and strict products liability.

DISCUSSION

When evaluating a preliminary objection in the form of a demurrer, this court must look to the following standard:

“The material facts set forth in the complaint as well as all inferences reasonably deducible therefrom must be admitted as true.... The court must determine from the facts averred, whether the law says with certainty that no recovery is possible.... If doubt exists whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer.” Smith v. Weaver, 445 Pa. Super. 461, 466, 665 A.2d 1215, 1216 (1995) (citations omitted), cited with approval in Aventis Pasteur Inc. v. Alden Surgical Co. Inc., 848 A.2d 996, 998 (Pa. Super. 2004).

1. Count V — Negligence

Defendant claims that contrary to this court’s order of August 18,2004, plaintiff’s amended complaint still fails to assert a cause of action in negligence. Defendant asserts that plaintiff’s amended complaint contains the identical “boilerplate” averments that were stated in his first complaint. Brief for defendant at 2. Plaintiff alleges in his amended complaint that defendant Strongwell “designed, assembled, manufactured, inspected, packaged, prepared, supplied, stored, serviced, sold, delivered, distributed and/or installed the... utility box cover in such a way that it was not safe for its intended use.” Plaintiff’s amended complaint ¶40.

Defendant Strongwell argues that the additional piece of information provided in the amended complaint, that plaintiff fell because the utility box was unable to bear his weight of 170 pounds, is still insufficient to plead a cause of action in negligence. Id.

In support of its demurrer argument on the negligence count, defendant Strongwell argues that plaintiff will attempt to prove negligence through the principle of res ipsa loquitur, but notes “that the mere happening of an accident does not raise an inference or presumption of negligence, nor does it make a prima facia [sic] case of negligence.” Brief for defendant at 3, citing Engle v. Spino, 425 Pa. 254, 257, 228 A.2d 745, 746 (1967). Defendant Strongwell insists res ipsa loquitur is unavailable because plaintiff is merely pleading that the collapse of the utility box is, itself, proof of negligence on the part of defendant Strongwell. Brief for defendant at 3.

The doctrine of res ipsa loquitur is a rule of circumstantial evidence where if all the elements are proven, a finder of fact through his experience and common sense can determine that the injury sustained most likely could not have occurred absent negligent conduct. The Pennsylvania Supreme Court has adopted the Restatement of Torts definition of res ipsa loquitur, which requires a plaintiff to show: (1) “the event is of a kind which ordinarily does not occur in the absence of negligence”; (2) “other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence”; and (3) “the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” Gilbert v. Korvette’s Inc., 457 Pa. 602, 613, 327 A.2d 94, 100 (1974), citing Restatement (Second) of Torts §328D (1965).

Defendant directs this court’s attention to Toogood v. Owen J. Rogal D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140 (2003), which in articulating the conditions necessary to establish res ipsa loquitur requires proof that “the defendant ... had exclusive control of the instrumentality effecting the injury —” Id. at 256, 824 A.2d at 1146, citing Greathouse v. Horowitz, 439 Pa. 62, 264 A.2d 665 (1970). This court must determine whether to use the “responsible causes” requirement cited in the Restatment Second and Gilbert or the “exclusive control” requirement from Toogood and Greathouse. This court notes that Toogood concerned a medical malpractice issue while the court in Gilbert was asked to decide a more traditional case of negligence. This court, therefore, believes Gilbert to be more on point with the issue presently before this court and will examine the requirements for res ipsa loquitur as stated in the Restatement (Second).

With the requirements of establishing res ipsa loquitur in mind, the question now becomes whether, from the facts averred in plaintiff’s amended complaint, the law says no recovery is possible. This court must answer that question in the negative. Defendant asserts that plaintiff cannot plead facts necessary to assert a negligence claim against defendant Strongwell as “[p]laintiff has joined other parties, alleged their independent negligence, and based claims against them on the allegation that their negligence was the cause of his injury.” Brief for defendant Strongwell at 4. Because plaintiff has asserted negligence claims against others, defendant Strongwell argues, plaintiff cannot sustain a claim against it on the basis of res ipsa loquitur. However, “[i]t is not necessary [to] exclude all other possible causes of the accident beyond a reasonable doubt.” Smith v. City of Chester, 357 Pa. Super. 24, 28, 515 A.2d 303, 306 (1986) (Plaintiff met the threshold requirement under the Restatement version of res ipsa loquitur even though an alternative theory of injury had been alleged, namely that an eight-ton steamroller had driven over the area of the sewer grate plaintiff fell into moments before plaintiff walked across it.). Plaintiff must only present a case “from which a jury may reasonably conclude that the negligence was, more probably than not, that of the defendant.” Id.

Taking all the facts averred in plaintiff’s amended complaint against defendant Strongwell as true, this court finds that the law could permit plaintiff to recover some damages. This court must therefore overrule defendant Strongwell’s preliminary objection in the form of demurrer of plaintiff’s amended claim of negligence.

2. Count Vl — Strict Liability

Defendant Strongwell next asserts a preliminary objection in the form of a demurrer on the grounds that plaintiff’s amended complaint fails to state a cause of action in strict products liability. Specifically, defendant Strongwell claims the averment that the utility box was defective because it was unable to bear the weight of plaintiff is still insufficient to plead a case on the basis of strict liability.

Plaintiff argues its theory in strict liability is rooted in the “malfunction theory of products liability [which permits] the plaintiff to establish strict liability through circumstantial evidence of product malfunction and to prove a defect in a product with evidence of the occurrence of a malfunction.” Brief for plaintiff at 5-6. To establish a claim of products liability based on the malfunction theory the plaintiff must prove: “(1) product malfunction; (2) the absence of abnormal use; and (3) the absence of reasonable secondary causes.” 1836 Callowhill Street v. Johnson Controls Inc., 819 F. Supp. 460 (1993).

In reviewing plaintiff’s amended complaint and taking the averments as true for purposes of evaluating the claim for demurrer, this court finds plaintiff made sufficient averments to survive defendant Strongwell’s motion in demurrer. Plaintiff alleges there was a malfunction, i.e., the utility box collapsed under his weight. Amended complaint ¶¶8,45. Second, the utility box cover “reached plaintiff ... in a condition substantially unchanged” from the time it left defendant’s possession, which adequately avers the absence of abnormal use and the absence of any reasonable secondary causes. Amended complaint ¶44. If these averments are proven at trial, plaintiff could recover damages under the malfunction theory of strict products liability. This court, therefore, cannot sustain defendant Strongwell’s preliminary objection in the form of a demurrer.

3. Motion To Strike

Finally, in the event this court does not sustain its demurrer, defendant Strongwell asks this court to strike plaintiff’s amended complaint “for failure to plead facts which, if proven, would establish a prima facie case of negligence, strict products liability, or breach of warranty against” it. Defendant Strongwell preliminary objections to plaintiff’s amended complaint ¶25. For the reasons discussed supra, this court finds plaintiff pled facts that, if proven, would establish prima facie cases for negligence and strict liability and accordingly denies defendant Strongwell’s motion to strike.

If, after discovery, defendant Strongwell still believes plaintiff does not have a cause of action against him, defendant Strongwell has the remedy of summary judgment available to it. This court cannot say at this time that when plaintiff’s averments are viewed as true, absolutely no cause of action exists or if all averments were to be proven at trial, the law would prevent plaintiff’s recovery of damages. This court must accordingly overrule defendant Strongwell’s preliminary objections.

The court enters the following order.

ORDER

And now, December 21, 2004, upon review and consideration of the briefs submitted by the parties in this matter, it is hereby ordered and decreed that defendant Strongwell’s preliminary objections in the form of a demurrer or, alternatively, a motion to strike Counts V and VI alleging negligence and strict liability respectively are overruled.

Defendant Strongwell’s motion to strike for failure to plead facts necessary to establish a prima facie case is denied.

It is further ordered and decreed that defendant Strongwell’s demurrer to Count VII of plaintiff’s amended complaint is sustained and that Count VII alleging breach of warranties is dismissed.

Defendant Strongwell shall file an answer to plaintiff’s amended complaint within 20 days of the date of this order.


author: GEORGE, J.,

text:
    Latimore Township-York Springs Regional Police Commission v. EMC Insurance Companies

      C.P. of Adams County,
    no. 04-S-15.

      James G. Gault, for plaintiff.

      Anthony R. Sherr, for defendant.

      December 22, 2004
   GEORGE, J.,

FINDINGS OF FACT

The Latimore Township-York Springs Regional Police Commission initiated this matter by filing an action for declaratory judgment asking the court to declare that EMC Insurance Companies is liable to indemnify Latimore Township pursuant to a municipal liability insurance policy. Latimore Township is seeking indemnification from EMC for approximately $31,137, which Latimore Township paid the former Latimore Township chief of police pursuant to the Pennsylvania Heart and Lung Act, 53 P.S. §637. After a non-jury trial, the court makes the following findings of fact:

(1) Latimore Township-York Springs Regional Police Commission is a municipal police commission with its principal place of business in York Springs, Adams County, Pennsylvania.

(2) Employers Mutual Casualty Insurance Company is a corporation licensed to do business and underwrite certain insurance policies in the Commonwealth of Pennsylvania with a local office at 1620 Medical Drive, Pottstown, Montgomery County, Pennsylvania.

(3) Sometime prior to September 1999, EMC issued a municipal liability insurance policy to Latimore Township. The material terms of that policy are accurately set forth in EMC’s exhibit no. 1.

(4) George C. Bowers was employed by York Springs Regional Police Department from 1978 to September 29, 1999, as a police officer, and subsequently, as police chief.

(5) On September 29,1999, Chief Bowers underwent open-heart surgery at the Harrisburg Hospital.

(6) Following his open-heart surgery, Chief Bowers was temporarily disabled until June 2000, when he returned to work with the York Springs Regional Police Department.

(7) Chief Bowers has worked in a highly stressful environment for over 20 years. Throughout his employment as a police officer with Latimore Township, Chief Bowers investigated fatal motor vehicle accidents, conducted or led suicide and homicide death investigations, was involved in high-speed vehicle pursuits, responded to domestic violence incidents, and conducted missing persons investigations. One particular missing person investigation conducted by Chief Bowers resulted in Chief Bowers’ discovery of a two-year-old child’s deceased body. During his tenure as a police officer, Chief Bowers was personally involved in a two- to three-hour negotiation with a woman holding a firearm threatening to shoot herself. Chief Bowers has undergone psychotherapy for frequently recurring nightmares related to the death investigations in which he was involved.

(8) Toward the end of Chief Bowers’ employment with Latimore Township, and prior to the heart surgery, Chief Bowers would experience chest pains during intense incidents arising during the course of his employment.

(9) There is no evidence to indicate that, during his employment with the York Springs Police Department, Chief Bowers suffered a heart attack.

(10) Dr. H. Frederick Martin is licensed to practice medicine in the State of Pennsylvania and has been board certified in family practice since 1983. He is a member of the American Board of Family Practice and the Adams County Medical Society. He has operated a family practice for 21 years. During his years in practice, he has treated patients with heart disease, cardiac injuries, high blood pressure, diabetes, and cholesterol issues.

(11) Dr. Martin treated Chief Bowers as a patient since 1997. In assessing Chief Bowers’ medical history, he determined that Chief Bowers has a family history of premature cardiovascular disease, moderately high blood pressure, elevated levels of cholesterol, heavy tobacco use, a sedentary lifestyle, and a history of hyperlipidemia.

(12) Each of the conditions referred to above in regard to Chief Bowers’ medical history is classified as a risk factor for the development of coronary disease according to a publication issued by the American Heart Association and the American College of Cardiology.

(13) There is a lack of consensus in the medical community concerning the cause of coronary artery disease. There are, however, certain things that have been statistically proven to accelerate the development of coronary artery disease; this list includes the risk factors mentioned above. There are two trains of thought in the medical community as to whether a relationship exists between coronary heart disease and life stressors.

(14) In Dr. Martin’s opinion, which the court accepts as credible, the stress of being a police officer was a substantial factor in causing the heart disease suffered by Chief Bowers.

(15) At a public meeting conducted on October 13, 1999, the board of supervisors of Latimore Township unanimously approved a motion authorizing the payment of heart and lung benefits to Chief Bowers effective October 16,1999. Act of 1935, P.L. 477 (53 PS. §637). Thereafter, Latimore Township issued regular bi-weekly payments of heart and lung benefits to Chief Bowers until his temporary disability ceased on or about January 5, 2001.

(16) Latimore Township paid Chief Bowers a total of $31,137.

OPINION

The initial issue with which the court is confronted originates from the procedural posture of this case. One would anticipate that a typical claim under the Heart and Lung Act, 53 PS. §637, would trigger a fact-finding hearing where due process is afforded. Following such a procedure, an aggrieved party is afforded an opportunity to appeal an adverse decision. See generally, 2 Pa.C.S. §551 et seq. (relating to practice and procedure of local agencies).

Instantly, this matter comes before the court as a declaratory judgment action seeking to interpret the terms of an insurance contract. Latimore Township seeks indemnification for heart and lung benefits which it has apparently voluntarily agreed to pay Chief Bowers pursuant to an ordinance passed at a public meeting held on October 13,1999. The court has not been provided with a transcript of this public meeting nor is there any indication that a fact-finding hearing occurred. Additionally, the record is absent regarding any information that indicates whether EMC was aware of Chief Bowers’ claim under the Heart and Lung Act prior to October 13,2004, or whether EMC had an opportunity to participate in determining whether benefits were appropriate. On the basis of this sparse record, Latimore Township argues that EMC is contractually precluded from challenging the propriety of benefits paid to Chief Bowers under the Heart and Lung Act. Additionally, they argue that EMC is contractually obligated to indemnify Latimore Township since Latimore Township became legally obligated to pay Chief Bowers’ heart and lung benefits as a result of the ordinance passed on October 13,1999.1 agree.

Whether EMC participated in the public hearing on October 13, 1999, is immaterial in light of the current procedural posture of this matter. Chief Bowers filed a claim for heart and lung benefits against Latimore Township. EMC, as the township’s insurance carrier, is subject to the same liabilities as Latimore Township, including the liability that arose from Bowers’ claim. See Kohut v. W.C.A.B. (Township of Forward), 153 Pa. Commw. 382, 389-90, 621 A.2d 1101, 1104 (1993). At the public hearing on October 13, 1999, Latimore Township incurred liability through the passage of their ordinance. Although some may conclude that the court’s interpretation of the contractual language is unfair because the interpretation resulted in EMC relinquishing control of their financial resources to Latimore Township, this conclusion is incorrect. The insurance contract at issue provides certain remedies to the carrier in the event that an insured triggers coverage without the participation of the insurer. EMC has not challenged its liability on that basis. Accordingly, the legal obligation that Latimore Township has incurred is sufficient to trigger policy coverage.

In reaching this conclusion, I note that Latimore Township’s determination as to Chief Bowers’ eligibility for benefits under the Heart and Lung Act was reasonable. In interpreting the applicability of benefits under the Heart and Lung Act, there is a presumption that heart disease is work-related if a police officer has worked for four consecutive years in that position. Benginia v. W.C.A.B. (City of Scranton), 805 A.2d 1272, 1277 (Pa. Commw. 2002). As such, the initial burden is on the employer to prove that a claimant’s heart attack was not the result of stress or danger encountered while employed as a police officer. Buchanan v. Pennsylvania State Police, 152 Pa. Commw. 608, 614, 620 A.2d 575, 577 (1993). Although this presumption does not relieve a claimant from establishing that his heart disease was work-related, this court has found Chief Bowers’ family physician’s testimony credible, wherein he stated that the rigors of Chief Bowers’ employment was a substantial cause of his heart disease. Thus, Latimore Township’s decision to grant benefits under the Heart and Lung Act to Chief Bowers was not an abuse of discretion.

EMC argues that in addition to the necessity of a legal obligation by Latimore Township under the Heart and Lung Act, the policy terms limit the recovery of benefits to only those for “injuries or illnesses suffered by [the claimant] in the performance of their duties.” EMC’s exhibit no. 1, page 1, section 1 — coverage. EMC argues that this language is unambiguous and that the policy does not provide coverage to all benefits paid under the Heart and Lung Act but rather only for benefits paid for injuries or illnesses occurring in the officer’s performance of his duties. Indeed, Pennsylvania’s Heart and Lung Act provides for benefits under two distinct scenarios. Under subsection (a) of the Act, a police officer may receive benefits if he is “injured in the performance of his duties and, as a result, temporarily incapacitated from performing future duties . . . .” 53 P.S. §637(a). On the other hand, subsection (b) triggers the legal presumptions set forth hereinabove and allows benefit coverage for diseases “arising directly out of employment.” 53 P.S. §637(b). Based upon this distinction in coverage, EMC argues that the limiting language of the policy provides coverage for claims under subsection (a), however, does not include coverage for those claims, such as Chief Bowers’, arising under subsection (b).

The interpretation of an insurance contract, regarding the existence or nonexistence of coverage, is “generally performed by the court.” General Accident Insurance Co. of America v. Allen, 547 Pa. 693, 701, 692 A.2d 1089, 1093 (1997). “Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer... [wjhere, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.” Minnesota Fire and Casualty Co. v. Greenfield, 2004 Pa. Lexis, 15, 855 A.2d 854, 861 (2004) (quoting Gene & Harvey Builders Inc. v. Pennsylvania Manufacturers’ Association Insurance Co., 512 Pa. 420, 426, 517 A.2d 910, 913 (1986). “A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Kripp v. Kripp, 578 Pa. 82, 91, 849 A.2d 1159, 1163 (2004).

While it is true that the language “in the performance of their duties” mirrors the language of subsection (a) of the Heart and Lung Act, the question of whether the language in the policy is ambiguous requires future discussion. Interestingly, the language in the policy provides coverage for both “injuries” and “illnesses.” Although subsection (a) of the Heart and Lung Act clearly refers to “injuries,” it does not contain any reference to “illnesses.” Rather, the only language in the Heart and Lung Act that can conceivably be interpreted as providing benefits for “illnesses” is the language found in subsection (b), which provides coverage for “diseases.” Thus, contrary to EMC’s argument, it appears that the policy coverage is broader than providing coverage only under benefits paid under subsection (a). To hold otherwise would be to disregard the use of “illnesses” in the policy language since “illnesses” do not fall in subsection (a) of the Heart and Lung Act.

In light of the foregoing, it appears that the policy is ambiguous as to the coverage to the township for benefits paid under the Act. At the very least, the policy language is susceptible to different interpretations. Therefore, this language shall be interpreted in favor of Latimore Township as providing coverage for any claims that Latimore Township is legally obligated to pay under the provisions of Pennsylvania’s Heart and Lung Act.

Having found that EMC must indemnify Latimore Township pursuant to its municipal liability insurance policy, I now turn to Latimore Township’s request for legal fees. In Kelmo Enterprises Inc. v. Commerical Union Insurance Co., 285 Pa. Super. 13, 21-23, 426 A.2d 680, 684-85 (1981) (petition for allowance of appeal granted May 6,1981), the Pennsylvania Superior Court recognized that legal fees may be appropriate in a declaratory judgment action based upon the breach of an insurance contract. In recognizing that the imposition of legal fees is appropriate, the Superior Court required a showing of bad faith on the part of the insurance carrier. The record before the court is void of any evidence indicating bad faith on the part of EMC. Apparently, Latimore Township seeks to rely upon a mere showing of breach of the insurance contract as justification for an award of attorney fees. This minimal threshold was expressly rejected in Kelmo. As such, it will likewise be rejected in the instant case.

For the foregoing reasons the attached order is entered.

ORDER

And now, December 22, 2004, EMC Insurance Companies is directed to indemnify Latimore Township-York Springs Regional Police Commission $31,137 pursuant to the municipal liability insurance policy at issue in this matter. The costs are to be paid by the defendant.

      . Hyperlipidemia means an excess of lipids in one’s plasma characterized by an increase in both cholesterol and triglycerides in the bloodstream. See generally, Mosby’s Medical Dictionary, 6th Edition.

      . The Heart and Lung Act provides benefits to state and local law enforcement officers who are temporarily incapacitated from performing their duties as a result of injuries that occurred in the performance of duties. This Act also provides benefits where a state or local law enforcement officer suffers from diseases of the heart or tuberculosis of the respiratory system when the condition arose directly out of his or her employment.

      . In Wydra v. Swatara Township, 136 Pa. Commw. 164, 173, 582 A.2d 710, 714 (1990), the court held that the receipt of Heart and Lung Act benefits is a property right subject to due process protection.

      . The Heart and Lung Act does not specify a means by which a dispute under the Act should be resolved. However, review of the cases which have reached the appellate courts reveal procedural histories wherein a fact-finding hearing was conducted by the local agency. See generally, Kohut v. W.C.A.B. (Township of Forward), 153 Pa. Commw. 382, 621 A.2d 1101 (1993); Gilotty v. Township of Moon, 846 A.2d 195 (Pa. Commw. 2004).

      . The liability coverage form under the municipal liability insurance policy at issue indicates that EMC has the right and duty to defend any “suits seeking [heart and lung] damages.” In another part of the insurance policy titled “duties in the event of occurrence, claim or suit,” the policy provides that no insureds will, except at their own cost, voluntarily make a payment, assume any obligation, or incur any expense, other than for first-aid, without our consent. EMC’s exhibit no. 1, page 2, paragraph 4(d). Neither party has raised lack of compliance with this section as an issue; specifically, Latimore Township’s failure to perform a condition precedent pursuant to this paragraph was not alleged in new matter nor raised at trial. As such, the issue is waived; I will not create an issue not raised by the parties. See Pa.R.C.P. 1032 (waiver of defenses); see also, Judge v. Celina Mutual Insur

        ance Co., 303 Pa. Super. 221, 226, 449 A.2d 658, 661 (1982) (noting that affirmative defense not properly pleaded is waived).

      . Material language of the policy at issue provides: “We will pay those sums that you become legally obligated to pay to any paid policeman, paid fireman or paid park guards under the provisions of the Act of 1935, P.L. 477, as amended, because of temporary incapacity as a result of injuries or illnesses suffered by them in the performance of their duties.”

      . The dictionary reveals that the word “disease” is synonymous with “illness.” Both the American Heritage Dictionary and the 11th Edition of Merriam-Webster’s Dictionary equate “disease” and “illness” with “sickness.” On the other hand, both dictionaries define “injury” as a “hurt, damage, or loss.”


author: STALLONE, J.,

text:
    Commonwealth v. Dalton

      C.P. of Berks County,
    no. 1095-03.

      David Golberg and Dennis Skayhan, assistant district attorneys, for appellee.

      James M. Polyak, trial counsel and Andrea E. Mertz, assistant public defender, for appellant.
    December 22, 2004
   STALLONE, J.,

On August 25, 2004, a jury found the appellant, Charles Ray Dalton Jr., guilty of possession of heroin, possession with intent to deliver heroine, receiving stolen property, possession of cocaine and possession of drug paraphernalia, arising out of the execution of a search warrant for a second floor bedroom in a dwelling located at 317 N. 2nd Street, Reading, Berks County, Pennsylvania. Thereafter, pursuant to section 7508(a)(7)(ii) of the Crimes Code, this court imposed the mandatory minimum sentence of five to 10 years in state prison and the mandatory minimum fine of $30,000.00 upon the appellant for possession with intent to deliver heroin, with credit for 25 days time served. Appellant has now filed this timely appeal in which he is raising two unrelated issues for appellate review.

The first is that this court abused its discretion in imposing the mandatory minimum sentence. Under Pennsylvania law, an appeal challenging the discretionary aspects of sentencing may be reviewed only where it appears that a substantial question has been raised concerning the legality of the sentence. Commonwealth v. Eby, 784 A.2d 204, 205-206 (Pa. Super. 2001). And, even assuming that a substantial question is raised, a sentence will not be overturned unless the record shows a manifest abuse of discretion, which is more than a mere error in judgment. A manifest abuse of discretion may be found only where the record establishes that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will or arrived at a manifestly unreasonable decision. Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999).

In claiming that this court abused its discretion in imposing the mandatory minimum sentence, the appellant is challenging this court’s application of section 7508(b) of the crimes code, which reads as follows:

“(b) Proof of sentencing. — Provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.'’''

Appellant’s argument is not directed to the Commonwealth’s notice of intention to seek the mandatory minimum sentence, which he admits was properly given. N:T., sentencing hearing, p. 6. Rather, he maintains that, because the jury was not asked to make a specific finding as to the weight of the heroin found in his possession, the sentence was excessive and manifestly unreasonable.

We disagree. Where the language of a statute is clear, the Statutory Construction Act requires that it be read in accordance with its plain meaning and common usage. Commonwealth v. Johnson, 417 Pa. Super. 636, 612 A.2d 1382 (1992). Here, section 7508(b) clearly required this court, and not the jury, to make a finding as to the weight of the heroin in determining, by a preponderance of the evidence, that the mandatory minimum sentence should be imposed. In doing so, this court considered all of the relevant evidence introduced at trial and at the sentencing hearing, including the parties’ stipulation at trial that the weight of the heroin was in excess of five grams, which in and of itself would be sufficient to permit the imposition of the mandatory minimum sentence. N.T., sentencing hearing, pp. 8,11, 12.

Moreover, our research has led us to the case of Commonwealth v. Bess, 789 A.2d 757 (Pa. Super. 2000), which is helpful on this issue. In that case, the appellant, Charles Bess, alleged, inter alia, that his trial counsel was ineffective for failing to request the trial court to instruct the jury to make a separate finding as to how much of the controlled substances found on him at the time of his arrest was for personal use and how much was for distribution or sale. In rejecting that claim, the Superior Court reasoned in pertinent part at page 763 of its opinion:

“Whether the mandatory minimum sentence applies is the sole province of the judge at the sentencing hearing. Commonwealth v. Glenn, 450 Pa. Super. 130, 675 A.2d 343 (1996). Thus, any request of the court to find that appellant had less than the amount of cocaine required by statute would have to have been made to the sentencing court and not by the jury.”

Accordingly, as it was clearly within the province of this court to determine the applicability of the mandatory minimum sentence in this case, we did not abuse our discretion in imposing such a sentence upon the appellant.

Secondly, the appellant claims that the court, after a pretrial hearing held before Judge Scott D. Keller, erred in entering an order denying his motion to suppress certain physical evidence seized from the second floor bedroom at 317 N. 2nd Street. However, we must likewise reject this claim inasmuch as the record discloses that on October 10,2003, Judge Keller filed written findings of fact and conclusions of law in support of his order, which we hereby incorporate by reference into this memorandum opinion [not published herein].

And so, for these reasons, we affirm the judgment of sentence and respectfully request the Superior Court of Pennsylvania to deny this appeal.

      . Title 35, 35 P.S. §780-113(a)(16) (Supp. 2004).

      . Title 35, 35 P.S. §780-113(a)(30) (Supp. 2004).

      . Title 18, 18 Pa.C.S. §3925(a) (Supp. 2004).

      . Title 35, 35 P.S. §780-113(a)(16) (Supp. 2004).

      . Title 35, 35 P.S. §780-113(a)(32) (Supp. 2004).

      . Title 18, 18 Pa.C.S. §7508(a)(7)(ii) (Supp. 2004)

      . We also imposed a consecutive term of 18 months to 36 months for receiving stolen property and concurrent terms of three months to 24 months for possession of cocaine and three months to 12 months for possession of drug paraphernalia, none of which are being challenged in this appeal. Moreover, we did not sentence appellant for possession of heroin, inasmuch as it merged for sentencing purposes with possession with intent to deliver heroin.

      . See n.7, supra.

      . All italicized language appearing in this memorandum opinion is for emphasis only.

      . Title 1, 1 Pa.C.S. §1903 (Supp. 2004).

      . This case was originally assigned to Judge Keller following the defendant’s preliminary hearing. On November 22,2003, Judge Keller reassigned this case to Judge Jeffrey K. Sprecher, who subsequently reassigned it to this judge on May 17, 2004, solely for purposes of trial.


author: BERNSTEIN, J.,

text:
    Rabold v. Ericsson Inc.

      Laurence H. Brown, for plaintiff.

      Richard W. Foltz, for defendant.
    November 24, 2004
   BERNSTEIN, J.,

Plaintiff filed this action against defendant Ericsson claiming plaintiff’s decedent Rabold had died as a result of exposure to asbestos contained in wire and cable manufactured and distributed by defendant Ericsson’s predecessor companies.

In accord with long-standing Philadelphia County procedure in asbestos litigation, the case was tried by jury in coordination with three other unrelated, unconsolidated asbestos lawsuits. Likewise, in accord with long-standing Philadelphia County procedure in asbestos litigation, these cases were tried in a reverse bifurcated manner. Accordingly, the jury decided damages prior to determining which, if any, defendant was liable to any plaintiff.

Prior to trial, defendant Ericsson filed a motion in limine in opposition to the coordinated trial of four unrelated cases which had not been consolidated and a second motion in opposition to reverse bifurcation. These motions were denied on October 8,2003, by the Honorable Norman Ackerman. Thus, the trials in Paula Box and Jerry Box, Co-Executrix of the Estate of Larry Box and Paul Box in Her Own Right v. ACandS Inc., July term 2002, no. 3632; Guila Andrews, Executrix of the Estate of Luke Andrews, and in Her Own Right v. ACandS Inc., July term 2001, no. 482; June and Eugene Gerhart v. ACandS Inc., September term 2001, no. 1646; and David Rabold and Bobbi Joe Klick, Co-Executors of the Estate of Clarence Rabold v. Ericsson Inc., December term 2001, no. 3141, commenced on October 9, 2003. During trial, three of the four plaintiffs’ cases were settled. On October 20, 2003, the jury entered a damage award in favor of plaintiff Rabold’s decedent in the amount of $3.5 million.

The liability phase of trial commenced immediately after the damages verdict. On October 23, 2003, at the conclusion of plaintiff’s testimony, defendant Ericsson moved the court for a nonsuit. Defendant claims that plaintiff Rabold in his case failed to identify any asbestos-containing products manufactured or distributed by any Ericsson or Ericsson predecessor company which he had inhaled. The motion for nonsuit was denied. On October 27, 2003, at the conclusion of all evidence, defendant Ericsson moved for a directed verdict on the same basis which was also denied. On October 23, 2003, the jury entered a liability verdict against defendant Ericsson.

Ericsson files post-verdict seeking judgment n.o.v. or a new trial. Defendant Ericsson asserts that it has been denied due process of law because of the coordination of this case at trial with three other unrelated asbestos cases and because of the reverse bifurcation procedure employed in Philadelphia County. Raising a closely related issue, defendant Ericsson claims that judgment n.o.v. should be granted because if reference to testimony presented to the same jury in the other non-consolidated but jointly tried cases is redacted, plaintiff Rabold himself failed to demonstrate that any asbestos products to which plaintiff’s decedent was exposed had been manufactured or distributed by any Ericsson predecessor company to Ericsson.

At trial plaintiff presented three different depositions of Mr. Rabold, who died during trial. Mr. Rabold himself did not identify any asbestos-containing wiring or cable as having been manufactured by either Anaconda or Continental, Ericsson’s predecessors. Specifically, Mr. Rabold testified that he never saw the word “asbestos” or “asbestos-containing” on any Anaconda or Continental wire. He could not testify whether there was any asbestos in the wire produced by Anaconda or Continental on the single wire machine he worked on.

Obviously, product identity is a crucial element in proof that the defendant’s asbestos-containing produce caused injury. See Wilson v. A.P. Green Industries Inc., 807 A.2d 922 (Pa. Super. 2002), and Samarin v. GAF Corp., 391 Pa. Super. 340, 571 A.2d 398 (1989). Thus, plaintiff’s decedent, Rabold himself, did not meet this requirement and had this been the totality of evidence presented to the jury, a nonsuit would have been granted.

Plaintiff testified that he had been extensively exposed to substances from the wires he worked with on a flow coater machine. He was not able to testify, however, that the cable used in the flow coater machine was Anaconda nor Continental wire which contained asbestos. As held in the case of Samarin v. GAF Corp., testimony that a product contained asbestos based strictly on the fact that it was itself heat resistant is by itself insufficient to establish that a product contained asbestos. Thus, Mr. Rabold’s testimony, if taken in isolation, fails to establish the defendant’s predecessor produced any asbestos which plaintiff’s decedent inhaled and defendant’s motion for directed verdict would have been granted.

However, plaintiff’s decedent’s Rabold’s deposition testimony was not the only testimony the jury heard on the question of whether the Anaconda or Continental wire contained asbestos. Co-workers of Mr. Rabold, whose trial proceeded with Mr. Rabold’s, worked on the same wire machine as Mr. Rabold. This testimony filled the gap whether Anaconda or Continental wire did contain asbestos fiber. Accordingly, if all the testimony presented to the jury at the combined trials may be considered as part of Mr. Rabold’s case, the evidence was sufficient to raise a jury question as to defendant’s liability and the motions for nonsuit and directed verdict were properly decided.

The question therefore becomes whether the jury, simultaneously hearing coordinated but not consolidated cases, is restricted in its consideration of each case from considering overlapping relevant testimony technically presented by another plaintiff.

Defendant points to the standard jury instruction which was given requiring that each of the coordinated cases must be considered on its own merits. In an effort to ensure that the jury was able to understand the testimony in four different coordinated cases with different multiple defendants in each, the court instructed the jury in opening instructions: “You have got four plaintiffs, and a slew of defendants ... each plaintiff, and each defendant deserves individual attention, and must be kept sorted out, as if that was the only case in front of you.” The defense further claims that because the court ordered counsel to identify witnesses by case, the jury was implicitly directed to consider evidence only in that case, even if relevant to a different plaintiff’s claim. The defense also claims that closing instructions in which the court said: “Each case has to be given its own attention and decided on its own evidence” and “there are three different cases that have to be separate and decided separately” also directed the jury to mentally compartmentalize the evidence.

The defense is incorrect in the import of these cautionary instructions. The court did not direct the jury that evidence relevant to a just verdict in one of these cases could not be considered if presented by a co-plaintiif. Indeed, it would be most unreasonable to expect a jury to be able to so compartmentalize their mind not just to keep straight the claims and defendants in multiple cases tried together, but also to restrict their consideration of evidence which overlap to the specific cases in which the evidence was presented.

Although the Supreme Court experiment in note-taking undoubtedly makes comprehension easier, it is simply unreasonable to expect jurors to possibly limit their consideration of relevant evidence to specific cases and exclude it from other cases even when relevant. It is doubtful whether jurors can possibly accomplish this feat of mental gymnastics, even if specifically instructed to. It is difficult to imagine the instruction which would have to be constantly repeated which could reasonably explain this requirement to jurors. The general instructions to consider multiple cases involving four different plaintiffs and numerous defendants separately was not so intended, and did not so explain. Neither did it communicate the concept that evidence presented, which was relevant to the Rabold case, could nonetheless not be considered in the Rabold case because the witnesses’ testimony had not been specifically identified in pretrial statements or at trial as presented in the Rabold case. The management difficulties in coordinating trials would become insurmountable. Accordingly, any testimony factually relevant to the Rabold case that was presented to the jury in any of the coordinated cases was properly considered by them and the judgment n.o.v. was properly denied and post verdict motions claiming otherwise are likewise properly denied.

Defendants further claim that reverse bifurcation is impermissible because “the original reason reverse bifurcation was utilized in the Philadelphia Court system” namely “to eliminate a grossly flooded and overburdened docket of asbestos cases” is no longer valid. This argument is accurate but inapposite. The instant case was tried in 2003, approximately two years after filing. For over a decade the Philadelphia courts have demonstrated an ability to process thousands of cases within the American Bar Association’s standards for time of trial within two years. At the time coordination of trials and reverse bifurcation were initiated, it was needed to handle an overburdened docket. The transformation of the Philadelphia courts, and the elimination of all backlog of civil cases, may make coordination of cases and reverse bifurcation unnecessary, but this fact cannot make Judge Ackerman’s ruling, which is in accord with 20 years of Philadelphia County practice, an “abuse of discretion.” The issues presented herein were fully briefed before the Honorable Norman Ackerman, supervising judge of the Complex Litigation Center, who, in accordance with long-standing Philadelphia County policy in handling asbestos cases, denied the motion to try these cases separately or in anything but a reversed bifurcation manner. The standard of review on post verdict motions must be abuse of discretion. It cannot be an abuse of discretion for the supervising judge to affirm a trial method which has been successfully used for over a decade. Accordingly, the post verdict motion on this ground is denied.

Defendant also complains on restrictions in voir dire and seeks remittitur. The purpose of voir dire is to impanel a competent, fair, impartial and unprejudiced jury. Therefore, the scope of voir dire is properly limited to questions that seek to uncover a potential juror’s lack of qualification or fixed opinion regarding the issues to be decided. A prospective juror’s attitudes are relevant only to the extent that his opinions are so deeply held as to render him incapable of setting them aside and applying the law as instructed by the court. Commonwealth v. England, 474 Pa. 1, 8, 375 A.2d 1292, 1296 (1977).

The questions the court ruled inappropriate were not designed to determine whether the jury had fixed opinions that would have rendered them unable to be fair. The questions sought to probe general attitudes to determine which prospective jurors might be most responsive to specific testimony and argument. The court did not abuse its discretion in precluding the particular questions. After the objection was raised, and before swearing in the jury, the court questioned the panel to ensure that the jurors all were fair and impartial, would put aside preconceived ideas and would decide the case on the evidence and law as given to them by the court. The court’s questions established that all of the jurors could be fair to a corporation and could be fair in an asbestos case.

Ericsson’s final argument is that the damage award to the estate of Clarence Rabold is excessive and that therefore, it is entitled to remittitur. This court may grant relief only if the verdict is so shocking to the conscience of the court that the court must conclude that the jury verdict was the result of partiality, prejudice, mistake, or corruption. Gunn v. Grossman, 748 A.2d 1235, 1240-41 (Pa. Super. 2000). Given the nature and extent of Mr. Rabold’s fatal injuries, there is no basis to overturn the amount.

Mr. Rabold initially began to suffer with symptoms later diagnosed as mesothelioma in August 2000, more than three years before he died. At that time, fluid accumulated in Mr. Rabold’s chest, causing shortness of breath. A procedure to drain fluid gave Mr. Rabold some temporary improvement. Within a few months however, the fluid and symptoms had returned with such severity that Mr. Rabold had to undergo an invasive diagnostic procedure. The procedure included the insertion of tubes to drain the fluid from his lungs. He also underwent a surgical procedure to limit the reaccumulation of fluid. By February 2001, doctors had made the diagnosis of mesothelioma, an incurable, fatal form of cancer.

Mr. Rabold started on courses of chemotherapy to stifle the spread of disease and control its symptoms. Doctors left Mr. Rabold with no hope that the therapy would produce a cure. The chemotherapy left Mr. Rabold fatigued and with foot and leg pain so severe he could not stand. By 2003, the chemotherapy failed to stop the advance of the disease or symptoms. Mr. Rabold experienced increasing shortness of breath, weakness, and pain. By the summer of 2003, the disease caused such extensive fluid in the chest that Mr. Rabold’s shortness of breath was extreme and he had to be on supplemental oxygen at all times. Beginning in June 2003, Mr. Rabold had constant abdominal pain that he described as being like a miserable toothache and it became infeasible for him to utilize his bedroom on the second floor of his house because the exertion of walking the one flight of stairs was too great. The disease inexorably led to Mr. Rabold’s death during trial.

The decision of the court below should be affirmed.

      . Plaintiff Rabold died during trial; a temporary estate was raised, so, after a hiatus, the trial resumed. The jury was not told the plaintiff Rabold had died but damages were restricted by agreement of the parties.

      . And where evidence is, in fact, presented in multiple cases, to remember which cases are included and which excluded.