author: CARPENTER, P.J.,

text:
    Commonwealth v. Swan

      C.P. of Blair County,
    no. 2008 CR 2152.

      Daniel Kiss, assistant district attorney, for Commonwealth.

      Mark Zearfaus, for defendant.
    November 3, 2010
   CARPENTER, P.J.,

— This matter comes before the court for resolution after a trial by court on July 8,2010. The court conducted a view of the subject area of the railroad tracks on July 29, 2010. Briefs were received by August 28, 2010, and the case is ready for resolution. The facts are as follows.

On May 23, 2008, Agent Dale DeLozier, employed by Norfolk Southern, received a call relating to activity on the railroad tracks in the City of Altoona. An observer had seen two individuals dumping material onto the tracks at a location near 20th Street and 9th Avenue, across from Boyer Candy.

Upon investigating the report, Agent DeLozier found that a plaster material had been deposited on two sets of tracks in the reported location. When DeLozier traced the license plate of the car observed at the dumping site, the plate was traced to defendant James Swan. A few days later, a second railroad agent reported a second incident of dumping on another section of the tracks. This time the dumping activity was recorded on a surveillance video of the Altoona Regional Health System. The tape showed two individuals dumping material from a plastic tub onto the railroad tracks near 26th Street and 9th Avenue, behind the Bon Secours campus of Altoona Regional Health System (formerly Mercy Hospital).

On June 6, 2008, Agent DeLozier spoke to Swan about the materials on the tracks. Swan admitted to the dumping activity advising he was doing a “community service” by building railroad crossings for pedestrians.

At trial, we learned Swan selected the location near Boyer Candy because it was near the St. Vincent DePaul food kitchen. The pedestrian tunnel under the tracks there had been closed, and Swan testified there was no way for pedestrians to cross the tracks to get to the food kitchen. Regarding the second location behind Bon Secours, Swan selected it because he had seen many people over the years cross that section of the tracks to get medical aid at the hospital. Swan’s intention was not only to build crosswalks but to bring attention to his belief that the public has a right of way over the tracks.

Norfolk Southern was aware there were trespassers on the tracks, but Agent DeLozier stated he issues citations to only four or five pedestrians a year (often giving warnings rather than citations). In this case, Norfolk Southern was required to have the material removed from the two locations at a cost of three hundred ($300.00) dollars per track, resulting in a total clean-up cost of nine hundred ($900.00) dollars and citations were issued.

Defendant Swan currently stands charged with counts 5 through 11 of the criminal information, all graded as summary offenses. Counts 5, 6, and 7 are three counts of criminal mischief under 18 Pa.C.S.A. § 3304(a)(2); counts 8, 9, and 10 are three counts of defiant trespass under 18 Pa.C.S.A. §3503 (b)(l)(ii); and count II is a charge of scattering rubbish pursuant to 18 Pa.C.S.A. §6501 (a)(1). We now consider each offense in the order charged.

CRIMINAL MISCHIEF

Under 18 Pa.C.S.A. 3304(a)(2):

A person is guilty of criminal mischief if he intentionally or recklessly tampers with tangible property of another so as to endanger person or property.

The Commonwealth maintains there is uncontroverted testimony that Swan placed material between the rails to build a “walkway” and that this constitutes tampering either intentionally or recklessly with property. The Commonwealth concedes it “does not contend that it was Swan’s intent to harm the rail line or NFS property; however, the Commonwealth does contend that his actions recklessly created a risk of harm to NFS property” (Commonwealth’s Brief, p.l, lines 11-13).

Defendant Swan argues his actions did not endanger either person or property so he cannot be found guilty of the offense (Defendant’s Brief, p. 1, lines 5-8).

Based on the testimony presented, the photographs admitted into evidence, and our view of the property, we find Swan tampered with property of the railroad. Swan admitted he built the crosswalks using plaster made from sand from an old building (Testimony 7/8/10, at 2:31). This constitutes tampering with railroad property.

We also find Swan tampered with the property of the railroad intentionally. Swan stated he saw his actions as something he could do for the community (Testimony 7/8/10, at 2:16). Swan stated numerous times during his testimony he believes in the public right of way, and he was trying to “bring the issue to court to have the court show the railroad that people do have a right of way” (Testimony 7/8/10, at 2:27). Swan stated his “hope” that “the railroad would be forced to negotiate in a proper manner and try to get proper crossings” (Testimony 7/8/10, at 2:27).

Swan sought to get the railroad and the court’s attention when he placed the plaster on the tracks. Swan voiced this when he testified, “If I win this case, that would show at least one person had the right of way” (Testimony, 7/8/10 at 2:33). While we understand Swan viewed his act as a community service, we cannot condone this form of self help. On the contrary, to do so would be to “legalize” an otherwise illegal act simply because it was committed in the spirit of protest.

The intent required for Swan to be found guilty of criminal mischief is only the intent to tamper with the railroad’s property (either recklessly or intentionally). We find the facts and Swan’s admissions sufficient to meet this burden.

Finally, we believe the placement of the plaster on the tracks endangered the property of the railroad. Plaster from an old building dumped upon railroad tracks is a potential danger. Further, Norfolk Southern was required to undertake a clean-up effort to return their property to the condition it was in before Swan placed the plaster on the tracks.

Accordingly, since all the elements of criminal mischief were proven by the Commonwealth, we must find defendant James Swan guilty of violating 18 Pa.C.S.A. § 3304(a)(2).

DEFIANT TRESPASS

Under 18 Pa.C.S.A. 3503 (b)(1)(h), defiant trespass, is defined as follows:

A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by posting in a manner prescribed by law or reasonably likely to come to the attention of intruders.

The commonwealth argues Swan is a trespasser because he had no permission from the railroad to be on the tracks. The commonwealth maintains that, “[A] rail line is in and of itself all the warning necessary, particular to a grown, intelligent individual such as Swan. By their very [nature] rail lines are dangerous places. Warning signs, fences, or other measures are often not placed along other dangerous places such as construction sites. However, that does not prevent an individual from being considered a trespasser” (Commonwealth’s Brief, p. 2, lines 22-25).

At the outset, we note the distinct difference between the classification of a trespasser under our civil law and the criminal charges at issue. The dispositive issue in a criminal case is whether the area is posted, not whether defendant Swan knew he was not privileged to enter upon the tracks.

The commonwealth suggests the “very nature of the rail lines” requires the defendant to be found guilty of defiant trespass if he admits to being present on the tracks. We disagree. On the contrary, the statute requires the property to be posted so the defendant has notice he was trespassing.

The court did a view of this property on July 29, 2010. We physically inspected the tracks and the location surrounding the tracks. We saw no posted signs giving notice to pedestrians that crossing the tracks was prohibited. In fact, we observed several footpaths suggesting the tracks were frequently crossed by pedestrians.

The testimony also establishes the property was not posted. Although Agent DeLozier placed “No Trespassing” signs on certain areas of the tracks in 2000/2001 and 2006/2007, the signs were removed and none existed in the areas where Swan placed the plaster material on the tracks (Testimony 7/8/10, at 2:03). Swan testified he never observed signs in either location (Testimony 7/8/10, at 2:23). Without evidence the property was posted, we cannot find the defendant guilty of Defiant Trespass in violation of 18 Pa.C.S.A. 3503 (b)(l)(ii). This finding should not be construed by the defendant (or anyone else) as the court establishing a “public right of way.” Instead, it is a finding that the commonwealth failed to prove an element of the offense.

SCATTERING RUBBISH

Under 18 Pa.C.S.A. § 6501(A)(1):

A person is guilty of an offense if he causes any waste paper, sweepings, ashes, household waste, glass, metal, refuse or rubbish, or any dangerous or detrimental substance to be deposited into any road, street, highway, alley or railroad right of way, or upon the land of another or into the waters of the Commonwealth.

The defendant does not dispute he is guilty of scattering plaster refuse on the property of the railroad. The defendant’s brief states, “As the defendant admitted that he did in fact place household waste onto the railroad tracks when constructing his crossings, the undersigned cannot argue that defendant is not guilty of that charge.” Given this admission, we find defendant Swan guilty of Scattering Rubbish in violation of Under 18 Pa.C.S.A. § 6501(A)(1). We enter the following:

ORDER

And now, November 3, 2010, as to counts 5, 6, and 7, we find defendant James Swan guilty for acts of criminal mischief under 18 Pa.C.S.A. 3304(a)(2); we also find defendant guilty as to count 11 for violating 18 Pa.C.S.A. §6501(a)(l) by scattering rubbish on the railroad tracks. We find defendant Swan not guilty of defiant trespass under 18 Pa.C.S.A. 3503 (b)(l)(ii).

In reaching this decision, we acknowledge our findings are undoubtedly disappointing in some respects to the parties.

From the commonwealth’s perspective, they were seeking a ruling from the court which would establish the principle that simply crossing railroad property (whether posted or not) constituted “trespassing.” We deny that precedent. Instead, we require the railroad (just as we would any property owner) to put people on notice by posting they may be trespassing. This is especially relevant in this particular case since we know from the defendant’s testimony that he believed he had the right as a member of the public to cross the tracks. Given that belief, posting takes on particular significance.

We understand the defense may be frustrated by our ruling as well. In acting as he did, defendant Swan sought a ruling from this court (whatever the criminal consequences) which would establish the public’s right to cross the subject railroad tracks. We simply do not reach that issue on the facts of this case. Generally, criminal proceedings are not the proper forum to establish civil rights. Rather, they require a determination whether the commonwealth has proved the elements of a particular statute “beyond a reasonable doubt.” As a result, the decision in this case on the trespassing counts comes down to the fundamental basics of criminal law as opposed to broader civil liberties.

As to the criminal mischief and scattering rubbish violations, the court has a responsibility to protect railroad tracks for their intended purpose of moving trains safely from one point to another. We would be remiss if we allowed people to tamper with those tracks in any fashion given the potentially disastrous results of that tampering (no matter how well intended an individual actor may be).

The trespassing is another matter. Given the absence of posting, defendant Swan is not guilty. The court is not in a position to discuss “larger” issues such as the railroad’s right to deny pedestrians a right of way or the public’s rights within a right of way. We would direct defendant Swan to other means i.e., working with city hall and the railroad as a more appropriate forum than the criminal court. We understand the defendant has already attempted this and believes he was unsuccessful. However, an initial lack of success does not mean this is not the proper way to proceed. Most changes are accomplished only with persistence and occur by evolution and not revolution.

Consistent with the above, we sentence the defendant as follows:

ORDER

And now, this November 3, 2010, in light of the above, we sentence as follows:

1. On one count (count 5) of criminal mischief (consolidating the three counts since they are one course of conduct) we fine the defendant one-hundred dollars ($100) and the cost of prosecution.
2. On the count of scattering rubbish, we fine the defendant one-hundred dollars ($100) together with the cost of prosecution.
3. The defendant shall make restitution to the railroad in the amount of nine-hundred dollars ($900) for the required “clean up.”
4. All of the sums are to be paid within one year of this date through the Blair County Office of Cost & Fines.

Finally, in the interest if completeness, we acknowledge the absence of discussion of the case law provided by counsel in this opinion. This does not mean we ignored counsel’s cases or that we conducted no research of our own. On the contrary, the absence of case citations illustrates both the limited scope of our inquiry and counsel’s own admissions that the case law which they cited was of limited relevance at most.


source: Caselaw Access Project

author: BURR, J,

license: Public Domain

text:
    Cassidy v. Crozer Chester Medical Center

      C.P. of Delaware County,
    no. 07-08172.

      Shannin Specter, Michael A. Trunk, and Earlie L. Francis, for plaintiffs.

      Benjamin A. Post, for defendant Crozer Chester Medical Center.

      Kathleen Foley Burke, for defendant Moss.

      Stephen A. Ryan, for defendant Meltz.
    November 10, 2010
   BURR, J,

The plaintiffs, Dawn and Anthony Cassidy, as co-administrators of the Estate of Brynn Elizabeth Cassidy, deceased, and Dawn Cassidy and Anthony Cassidy, individually, and in their own right (hereinafter “plaintiffs”), have appealed from this court’s denial of their motion for post-trial relief and entiy of judgment in favor of the defendants, Crozer Chester Medical Center (hereinafter “CCMC”), et alia. The plaintiffs have submitted as their one claim of error whether the court properly excluded an “Event Follow Up” form upon which a CCMC nurse had checked a matter listed under the heading “Medication Event Data” indicating that an error of that kind had been the cause of Brynn Cassidy’s death. Since medication error has never been alleged by the plaintiffs as a theory of recovery in this medical malpractice action and the plaintiffs never deposed the nurse who made the entry, the court appropriately excluded this evidence on grounds that it was irrelevant and would have been confusing and misleading for the jury under Pennsylvania Rules of Evidence 402 and 403.

Brynn Elizabeth Cassidy died in útero at the defendant CCMC during the afternoon of July 5, 2006 subsequent to her mother’s injuries sustained in a motor vehicle collision that morning. The plaintiffs charged the defendants with negligence in the failure to properly monitor the decedent’s well-being while in útero and to timely diagnose the abrupted placenta suffered by Mrs. Cassidy in the accident. Following a three week long trial, a jury entered a verdict in favor of the defendants with the finding that the conduct of none of them had fallen below the applicable standard of medical care. Denial of the plaintiffs’ motion for post-trial relief and the entry of judgment in the defendants’ favor by order of this court gave rise to this timely filed appeal.

The plaintiffs have submitted the following concise statement of errors complained of on appeal:

“STATEMENT OF ERRORS
[10.] Plaintiffs pursue one issue on appeal.
[11.] The court erred and abused its discretion by precluding the Event Follow-Up form in its redacted form from evidence. CCMC voluntarily disclosed the document in redacted form (thereby waiving any claimed privilege with respect to the unredacted portions of the document), the document was not privileged in the first instance, the document was not excludable as hearsay, it was relevant to matter being tried, and its probative value was not outweighed by the considerations set forth in Pa.R.E. 403. The [t]rial [c]ourt erred and abused its discretion whatever its reasons may have been for precluding the document. This error prejudiced and affected the outcome of the trial, necessitating a new trial on all issues and [defendants.” (plaintiffs’ Concise Statement of Errors Complained of on appeal, p. 5)
Preclusion of CCMC “Event Follow Up ” Form

The plaintiffs proffered, in their motion for post-trial relief, the following timeline referencing their efforts to obtain discovery of the within “Event Follow Up” form from CCMC:

1. July of2007 - Plaintiffs’ first set of interrogatories and request for production of documents were propounded on CCMC. (plaintiffs’ motion for post-trial relief, ¶2)
2. November of 2007 - Plaintiffs’ filed a motion to compel discovery against CCMC. (Id., ¶3)
3. January 8, 2008 - The court granted plaintiffs’ motion to compel and ordered CCMC to provide responses to plaintiffs’ discovery requests. (Id., ¶4)
4. January 17, 2008 - CCMC served its answers and objections to plaintiffs’ discovery requests wherein CCMC objected to the provision of certain information and documents including a “Confidential Event Report” on grounds of preclusion pursuant to the Peer Review Protection Act, 63 Pa.C.S. § 425.1, et sequitur. (Id, ¶ 5) CCMC additionally served a Privilege Log stating it would not produce a 3 -page “Confidential Event Report reflecting date of July 5, 2006” pursuant to the Peer Review Protection Act. (Id; CCMC’s first Privilege Log appended as Exhibit B to plaintiffs’ motion for post-trial relief)
5. May of 2008 - Plaintiffs propounded a first set of supplemental interrogatories and first set of supplemental requests for production of documents and things to all defendants. (Id., ¶ 6)
6. June of 2008 - Plaintiffs filed a second motion to compel a more specific answer to their discovery requests. (Id., ¶ 7)
7. September 11, 2008 - the court granted plaintiffs’ second motion to compel and ordered CCMC to produce full, complete responsive and verified answers to plaintiffs’ interrogatories and document requests. (Id., ¶ 8)
8. October 2008 - CCMC served its answers to the supplemental interrogatories and first set of supplemental requests for production of documents and things to all defendants, wherein CCMC provided a second privilege log stating (1) that a two-page “Confidential Event Report reflecting date of July 5, 2006” was protected by the Peer Review Protection Act, and (2) that CCMC would produce a redacted version of that document to the plaintiffs. (Id., ¶9; CCMC’s second privilege log appended as Exhibit C to the plaintiffs’ Motion for Post-Trial Relief)
9. October 8, 2008 - CCMC produced on or about this date, a redacted two-page copy of the “Crozer Keystone Health System Event Follow-Up” form prepared by CCMC nurses on July 5, 2006, the date of Brynn Cassidy’s death. The form produced by CCMC was two pages long, although originally identified as being three pages long in the first privilege log provided to the plaintiffs. (Id., ¶ 10; CCMC’s first privilege log appended as Exhibit B to plaintiffs’ motion for post-trial relief; see also fn 1, supra)
10. September 25,2009 - Plaintiffs filed a third motion to compel discovery. (Id., ¶ 11)
11. October 19, 2009 - Date of this court’s order granting the foregoing motion and compelling CCMC to serve “full, complete, responsive and verified responses” to plaintiffs’ discovery requests or risk the imposition of sanctions. (Id., ¶ 12)
12. December 22, 2009 - Counsel for plaintiffs, Earlie Francis, sent a letter bearing this date to CCMC counsel, Matthew Colavita, requesting an unredacted copy of CCMC’s “Event Follow-Up” form dated July 5, 2006. (Id, ¶ 13)
13. January 8, 2010 - Plaintiffs filed a motion for sanctions against CCMC for not complying with the order of October 19, 2010 to the extent of providing documents requested in the December 22 letter referenced immediately hereinabove. (Id., ¶ 14)
14. Between January 8 and January 27, 2010 - CCMC responded to plaintiffs’ motion for sanctions on the latter date by stating that it had supplied the plaintiffs with a redacted copy of the “Event Follow Up” form. (Id., ¶ 15). Counsel for CCMC notified this court by correspondence dated January 27, 2010 that it had responded to all of plaintiff’s requested discovery, with the suggestion that the “Event Follow Up” form had been redacted so as to comply with the Pennsylvania Peer Review Protection Act. (Id, ¶¶16-17; Letter appended as Exhibit E to plaintiffs’ motion for post-trial relief)
15. January 28, 2010 - Plaintiffs’ counsel, Michael A. Trunk wrote to the court to argue plaintiffs’ entitlement to an unredacted copy of the “Event Follow Up” form, with a copy of the redacted form accompanying this letter. (Id, ¶ 18; Letter appended as Exhibit F to plaintiffs’ motion for post-trial relief)

The trial of plaintiffs’ case began on February 1, 2010. Plaintiffs sought admission of CCMC’s “Event Follow Up” form pursuant to Pennsylvania Rules of Evidence 401, 402, 803(6) and 803(25). (Plaintiffs’ memorandum of law in support of motion for post-trial relief, p. 9) Plaintiffs contended that the documents were relevant and admissible under Pennsylvania Rules of Evidence 401 and 402, and admissible as an exception to the hearsay rule as a business record prepared by the defendant’s employees during the course and scope of their employment at the time of Brynn Cassidy’s death pursuant to Pennsylvania Rule of Evidence 803(6). (Id). Plaintiffs believed and averred that, inasmuch as the document invited the preparer to characterize the “Event Severity” with options ranging from “Error occurred, no harm to patient” to “Error resulted in patient death,” the checking of the latter item by the nurse who prepared it constituted an admission by a party opponent pursuant to Pennsylvania Rule of Evidence 803(25). (Id)

The court held a sidebar conference on February 8,2010 to hear oral argument on plaintiffs’ request to admit this document, and again in the robing room of the courtroom the next day, February 9, 2010. (Transcript of 2/8/10 sidebar conference, Exhibit G appended to plaintiffs’ motion for post-trial relief; transcript of 2/9/10 robing room conference, Exhibit H appended to plaintiffs’ motion for post-trial relief) At sidebar, plaintiffs’ counsel introduced his bid for the court to admit CCMC’s “Event Follow Up” form by informing the court that he was in possession of the redacted form about which he could cross-examine its authors, but that he preferred the unredacted version on grounds that it was not privileged and was admissible into evidence according to the case authority of Atkins v. Pottstown Memorial Medical Center, 634 A.2d 258 (Pa. Super. 1993), which was decided nine years prior to the effective enactment date of the MCARE Act on May 19, 2002. (Exhibit G to plaintiffs’ Memorandum in Support of Motion for Post-Trial Relief - 2/8/10 N.T. 1-2) However, the “incident report” ruled admissible as a business record by the appellate court in Atkins had been prepared by a hospital risk manager, was otherwise available from original sources, was not derived nor part of an evaluation or review by a peer review committee, and was based on information also available to the plaintiffs. Id., 634 A.2nd at 260. The Atkins court also noted that, inasmuch as information set forth in the subject “incident report” pertained to conduct that the jury had deemed to be negligent, and did not address conduct found not to be negligent on the part of a nursing defendant, its admission did not affect the verdict and could not necessitate a new trial. Id., 634 A.2nd at 260-261. In like manner, deeming CCMC’s “Event Follow Up” form to be inadmissible could not have affected a defense verdict in which the administering of medication in a negligent manner was never presented as a theory of recovery in the plaintiffs’ case. (7/26/10 N.T. 10).

Counsel for CCMC responded that this document was privileged under the Peer Review Protection Act, 63 Pa.C.S. 425.1, et sequitur, for having been prepared with the expectation that “there was going to be a peer review” in which Nurse Kazanjian had participated. (Exhibit G to plaintiffs’ memorandum in support of motion for post-trial relief -2/8/10 N.T. 2-3) When CCMC’s attorney pointed out that the face of the document evinced its purpose as peer review oriented, plaintiffs’ counsel replied that he hadn’t received the full three-page version of the “Event Follow Up” which, in his view, constituted an admission by a party opponent. (Id., 2/8/10 N.T. 4-5) The sidebar argument concluded at that point and resumed the next day in the robing room after the court had conducted an in camera review of the entire unredacted three page document described in footnote 1, supra. The court noted twice during this proceeding that the redacted portions seen only on the last two pages of this document merely described the facts of the incident that had already been thoroughly covered in the trial testimony over the course of the previous eight days of the trial. (Exhibit El to plaintiffs’ memorandum in support of motion for post-trial relief - 2/9/10 N.T. 3-4, 16-17) Plaintiffs' counsel said of the two pages thereof that he had received there, indeed, appeared the unredacted checkmark by a nurse made on the day of the incident indicating that “error had resulted in patient death.” (Id. - 2/9/10 N.T. 4-6)

Plaintiffs’ counsel admitted that he had not yet heard from any witness on the defense side that they agree there was such an error, to which the court replied that he probably would not hear that from the defense side of the case. (Id. - 2/9/10 N.T. 6) Plaintiffs’ counsel insisted that he would like to call the authors of the reports to find out what information they had, where it had come from, whether they had been Dawn Cassidy’s caretakers on the day of the incident, and why the conclusion was reached that an error resulted in patient death. (Id. -2/9/10 N.T. 6-7) Counsel for CCMC rejoined that the document had been reported as privileged in January of 2008, and that Nurse Cathy Kazanjian had told him in an interview that her checking of the box to indicate “error had resulted in patient death” had been a mistake. (Id. - 2/9/10 N.T. 7-8) Plaintiffs’ counsel replied that, even though his copy of the page on which Nurse Kazanjian’s check mark appeared was not headed “Medication Event Data” and listed the categories pertaining to “wrong drug,” “wrong dose” et alia, he felt that, if Nurse Kazanjian had checked off that “error resulted in patient death,” for any other reason, he was entitled to explore it with her. (Id. - 2/9/10 N.T. 8-11)

Counsel for CCMC then retorted that the report had been in plaintiffs’ counsel’s hands for two years and he had yet to depose Nurse Kazanjian who had filled out the assertedly privileged document in anticipation of a peer review process in which she, herself, had participated, and that the document was privileged not only under the Peer Review Protection Act, but also under section 11(a) of the Medical Care Availability and Reduction of Error (“MCARE”) Act, 40 Pa.C.S. §1303.311(a). (Id. - 2/9/10 N.T. 10-12) Counsel for CCMC related that the policy reason behind both statutory provisions was to prevent a chilling effect on the willingness of hospital personnel to fill out such forms, and that there was nothing in the instant documents that had not already come into plaintiffs’ counsel’s knowledge through discovery. (Id. - 2/9/10 N.T. 12-13) Plaintiffs’ counsel then claimed that the name of the person who filled out the second page of the documents had been blacked out, and stated later that he did not know her identity, although Nurse Kazanjian’s signature does appear next to the redacted material to which he was referring. (Id. - 2/9/10 N.T. 13, 22; Exhibit C appended to plaintiffs’ memorandum in support of post-trial relief) And, while conceding that he had the redacted portion of the last two pages of the report for two years, he wanted the unredacted version and had sought sanctions against CCMC for not providing it. (Id. - 2/9/10 N.T. 13-14) When told again by the court that the material redacted from the documents set forth nothing indicating what went wrong in the treatment of Mrs. Cassidy or suggestions as to how to prevent any such thing from happening in the future, and that what had been said therein had been covered in eight days of trial testimony, and had evinced no “smoking gun,” or anything “exciting” or probative at all, plaintiffs’ counsel asserted that the document was, therefore, not a peer review intended document and thus not privileged. (Id. - 2/9/10 N.T. 15-18)

When plaintiffs’ counsel stated his intention to question Nurse Kazanjian at trial about the subject check mark, CCMC’s attorney responded that plaintiffs’ counsel could question her about what happened on the day in question without delving into why she had placed the check mark on the document, and that she could have been deposed in that light, but that her deposition had never been taken. (Id. - 2/9/10 N.T. 18-20) Plaintiffs’ counsel replied that it wasn’t the people he was seeking by way of his motion for sanctions, but of the unredacted “Event Follow Up” report, and that he could call the people to testify at the trial if he wished. (Id. - 2/9/10 N.T. 20-21)

The court then introduced a discussion of case authorities relevant to the discoverability (as opposed to admissibility) of the instant “Event Follow Up” form, the first being Congdon v. Lancaster General Hospital, 8 D & C 4th 596 (Lancaster Cty. 1990). (Id. - 2/9/10 N.T. 21-22) Congdon involved the court’s denial of a motion to compel production of a hospital incident report arising from a patient fall because the Peer Review Protection Act, supra, precluded its discovery where the plaintiffs had not met their burden of providing a showing in the record of its use or purpose, since none appeared on the face of the document itself. Congdon v. Lancaster General Hospital, supra, 8 D & C 4th at 599, citing to 63 Pa.C.S. §425.4.

This determination can be distinguished from the allowance of the discovery of an incident report routinely and contemporaneously prepared by nurses in conjunction with patient care. Hanzsek v. McDonough, 44 D & C 3rd 639 (Lehigh Cty. 1987). The Hanzsek court deemed the foregoing to meet the definition of “records otherwise available from original sources” that are excepted from confidentiality under the Peer Review Protection Act, even though the document at issue also had as its purpose the intended use in subsequent peer review proceedings. Hanzsek v. McDonough, supra, 44 D & C 3rd at 644-645; 63 Pa.C.S. §425.4. Similar to the incident report in Hanzsek, from which the court was able to ascertain its purpose from the evidence of record, the two page “Event Follow Up” form provided to the within plaintiffs by the defendant, CCMC, states specifically that it is a confidential peer review document not intended for distribution. However, counsel for plaintiffs insists that, unlike the incident report in Congdon, the instant “Event Follow Up” form, while expressly stating its intended use as a peer review document, was discoverable as an “original sources” record filled out by the ER nurses who were present in that facility when Mrs. Cassidy was brought there following her automobile accident, pursuant to Section 425.4 of the Peer Review Protection Act as interpreted in Hanzsek, supra, as well as a business record under the Atkins case, supra. (Id. - 2/9/10 N.T. 23-24, 36-27,31-32, 44)

Plaintiffs’ counsel further insisted that his receipt of the redacted “Event Follow Up” form showing the subject check mark waived redaction of the document despite the claim of privilege thereof made ab initio by virtue of the document’s presence in CCMC’s privilege log. (Id. -2/9/10 N.T. 34-36) Counsel for CCMC suggested that Nurse Kazanjian could be called to testify as to the circumstances surrounding her completion of the “Event Follow Up” form, but that the report itself should not be admitted into evidence. (Id. - 2/9/10 N.T. 46-48) Plaintiffs’ counsel responded that he intended to place Nurse Kazanjian on the stand and ask her about the mistake, whereupon the court ruled the document privileged, remarking that the equities fell more on the side of preserving open discussion to improve hospital and medical care than in allowing plaintiffs’ counsel to explore the circumstances surrounding the filling out of the “Event Follow Up” form. (Id. - 2/9/10 N.T. 48-49)

Even if this court’s ruling that the “Event Follow Up” form was privileged, and therefore not admissible, is deemed to be in error, this error is harmless because the decision to preclude it from the trial evidence is strongly supported by its utter lack of relevance pursuant to Pennsylvania Rule of Evidence 402, inasmuch as there was no allegation in the plaintiffs’ case that CCMC’s putative negligence had anything to do with medication. Further grounds to preclude the “Event Follow Up” form are grounded in Pennsylvania Rule of Evidence 403. Not only would allowing the redacted portions of the report into evidence be cumulative to evidence already heard by the jury, but the irrelevant unredacted check mark denoting that a medication “error resulted in patient death” would mislead and confuse the juiy regarding the claims upon which they were to base their verdict, not to mention the unfair prejudice such evidence would inflict upon the defendant, CCMC, in that regard. Pa.R.E. 403.

Documents generated specifically for the peer review process and are so used, as in the instant case, are not discoverable. 63 Pa.C.S. 425.4; 40 Pa. C.S. 1303.311(a); Dodson v. Deleo, 872 A.2d 1237 (Pa. Super. 2005); Treible v. Lehigh Valley Hospital, Inc. 75 Pa. D & C 4th 22 (Lehigh Cty. 2005)(documents not utilized by peer review committee deemed admissible into evidence). Whatever grounds are raised by the plaintiffs to support the claims of discovery and admissibility of this document are of no moment when stacked against its irrelevance and immateriality to the facts in issue in their case. The plaintiffs’ should not be allowed to present a mistaken checkbox as the admission of a party opponent because it is undisputed that no medication error was alleged in this case, and indeed, never took place. There was thus no prejudice to the plaintiffs from the exclusion of this evidence.

Conclusion

Issues focusing upon the admission or exclusion of evidence are within the sound discretion of the trial court and will only be reversed where there is a clear abuse of discretion. Henry v. McCrudden, 133 Pa. Cmwlth. 231, 575 A.2d 666, appeal denied, 526 Pa. 651, 585 A.2d 470 (1990)(Table); Hoffmaster v. County of Allegheny, 121 Pa. Cmwlth. 266, 550 A.2d 1023 (1988), appeal denied, 522 Pa. 606, 562 A.2d 828 (1989 (Table); Juniata Foods, Inc. v. Mifflin County Development Authority, 87 Pa. Cmwlth. 127, 486 A.2d 1035 (1985); Catina v. Maree, 272 Pa. Super. 247, 415 A.2d 413 (1979), rev’d. on evidentiary grounds, 498 Pa. 443,447 A.2d 228 (1982). A wide degree of latitude is granted to the trial court in determining what evidence is to be admitted and that which is not admissible at trial. Lynch v. McStome & Lincoln Plaza Assoc., 548 A.2d 1276 (Pa. Super. 1988). The exclusion of evidence which is irrelevant, confusing, misleading, cumulative or prejudicial is within the sound discretion of the trial court and its decision thereon will not be disturbed. Concorde Investments, Inc. v. Gallagher, 497 A.2d 637 (Pa. Super. 1985).

Abuse of discretion by a trial court must rest upon a showing of clear and convincing evidence. Stevenson v. General Motors Corporation, 513 Pa. 411, 521 A.2d 413 (1987); Dalton v. Dalton, 409 Pa. Super 258, 597 A.2d 1192 (1991); Solomon v. Baum, 126 Pa. Cmwlth. 646, 560 A.2d 878 (1989), appeal denied., 525 Pa. 636, 578 A.2d 930 (1990)(Table). In applying this standard, it is acknowledged that an abuse of discretion is not a mere error in judgment, but if in reaching.a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestlyunreasonable,ortheresultofpartiality,prejudice, bias or ill-will, as demonstrated from the evidence or the record, a court’s discretion has been abused. Ludmer v. Nernberg, 640 A.2d 939 (Pa. Super. 1994), appeal denied, 541 Pa. 652, 664 A.2d 542 (1995) (Table), cert. den., 517 U.S. 1220, 116 S.Ct. 1849 (1996); Spitzer v. Tucker, 591 A.2d 723 (Pa. Super. 1991), appeal denied, 530 Pa. 645, 607 A.2d 255 (1992)(Table). The evidence plaintiffs contended to have wrongly been precluded was of a report that suggested a medication error in a case in which no such allegation was made, and in fact, did not occur in the first place. Moreover, admission of the material redacted from the subject document would have been misleading, confusing, unfounded in law and in fact, and altogether would have been of no assistance whatsoever in the jury’s deliberations.

Finally, whether or not this document was inadmissible as privileged, the threshold task for a trial judge in determining the admissibility of evidence is whether the evidence is relevant. Henery v. Shadle, 661 A.2d 439, 444 (Pa. Super. 1995), appeal denied, 542 Pa. 670, 668 A.2d 1133(1995)(Table); General Equipment Mfrs. v. Westfield Ins. Co., 430, 635 A.2d 173, 182 (Pa. Super. 1993), appeal denied, 537 Pa. 663, 644 A.2d 1200 (1994) (Table); Whyte v. Robinson, 617 A.2d 380, 383 (Pa. Super. 1992). Pennsylvania courts have considered evidence relevant when it helps to establish a fact in issue at trial, or make that fact more or less probable. Burrell Const. & Supply Co. v. Straub, 656 A.2d 529, 534 (Pa. Super. 1995), appeal denied, 542 Pa. 655, 668 A.2d 1120 (1995) (Table); Whistler Sportswear Inc., v. Rullo, 433 A.2d 40, 47 (Pa. Super. 1981). The plaintiffs’ claim of error, however, concerned evidence supporting only their own self-serving view that, if Nurse Kazanjian were questioned, she would tell them the nature of some other error that she thought might have resulted in the death of Brynn Cassidy. However, the plaintiffs’ utter failure to seek a deposition or present the trial testimony of Nurse Kazanjian whereby she could have been queried regarding her memory of the events transpiring in CCMC’s emergency room following Dawn Cassidy’s admission on July 5, 2006, renders this assertion not only impertinent, but incredible.

A new trial will only be awarded where the verdict is so contrary to the evidence as to shock the court’s sense of justice. Palange v. City of Philadelphia, Law Department, 640 A.2d 1305 (Pa. Super. 1994), appeal denied, 542 Pa. 649, 666 A.2d 1057 (1995); Giovanetti v. Johns Manville Corp., 539 A.2d 871 (Pa. Super. 1988). The case authority of Atkins v. Pottstown Memorial Medical Center, supra, rested on a finding by the court that, inasmuch as information set forth in the subject “incident report” did not address conduct found not to be negligent on the part of a nursing defendant, its admission did not affect the verdict and could not necessitate a new trial. Id., 634 A.2d at 260-261. In like manner, deeming CCMC’s “Event Follow Up” form to be inadmissible could not have affected a defense verdict in a case in which a medication error had never been alleged as a theory of recovery.

For all of the foregoing reasons, this court’s decision to preclude the “Event Follow Up” form completed by the defendant, CCMC’s, emergency room nursing staff contemporaneously with the events surrounding Brynn Cassidy’s death on July 5, 2006 from the trial evidence, was properly founded in the law and in fact, involved no abuse of this court’s sound discretion, and should not be disturbed on appeal.

Award of Costs and Fees Pursuant to 42 Pa.C.S.A. § 2503(9)

Costs and attorney fees are awardable to a litigant under 42 Pa.C.S.A. § 2503 upon a showing at any point in the proceedings that the opposing party acted in bad faith in pursuing or continuing to pursue a claim that is lacking in merit or with no basis in law or in fact, or in a manner deemed to be vexatious, dilatory, arbitrary, or obdurate for the purpose of delaying the end of litigation. The court hereby recommends to this honorable court that reasonable attorney fees and costs be awarded to the defendants under Pennsylvania Rule of Appellate Procedure 2744 if it should determine that the within appeal is frivolous or taken solely for delay or that the conduct of the plaintiffs, against whom costs are to be imposed is dilatory, obdurate or vexatious. In the alternative, the court requests remand of the matter back to the trial court for a determination of the amount of damages authorized under 42 Pa. C.S.A. §2503. The plaintiffs’ sole contention of erroneous preclusion of clearly irrelevant evidence is not supportable in fact or in law, utterly unfounded and, therefore, frivolous.

Appellate review of a trial court’s order awarding attorney fees to a litigant is limited solely to determining whether the trial court palpably abused its discretion in making a fee award. Thunberg v. Strause, 545 Pa. 607, 682 A.2d 295 (1996). If the record supports a trial court’s finding of fact that a litigant violated the conduct provisions of the applicable statute providing for the award of attorney fees, that award should not be disturbed on appeal. Thunberg v. Strause, supra, 682 A.2d at 299.

The statutory provision of 42 Pa.C.S.A. § 2503(9) expressly permits a trial court to award reasonable attorney fees to a litigant against an opponent who can be deemed to have brought suit (or otherwise) “vexatiously,” if he filed suit, or in this case, continued the litigation without sufficient grounds in law or in fact and the matter served the sole purpose of annoyance. Thunberg v. Strause, 545 Pa. 607, 682 A.2d 295, 299 (1996); Berg v. Georgetown Builders, Inc., 822 A.2d 810, 816 (Pa. Super. 2003); Black’s Law Dictionary 1565 (6th Ed., reprinted in 1993). In setting forth such a guideline, the statute focuses attention on the opponent’s conduct and on the relative merits of the opponent’s claims. Where a litigant’s claim has no reasonable possibility of success, coupled with the effect of prolonging the litigation and unnecessarily delaying the resolution of a matter, the litigant’s conduct has been found to come within that envisioned by 42 Pa.C.S.A. §2503 permitting an award of attorney fees. Berg v. Georgetown Builders, Inc., supra, 822 A.2d at 817; In re Estate of Liscio, 638 A.2d 1019, 1022 (Pa. Super. 1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (1994) (Table); Bykowski v. Chesed, Co., 625 A.2d 1256, 1259 (Pa. Super. 1993).

In the instant case, the plaintiffs have filed an appeal where the odds of prevailing are utterly against them. The plaintiffs have never alleged medication error as a cause of Brynn Cassidy’s death, and counsel for all of the parties have agreed that no such error ever occurred. The plaintiffs never deposed Nurse Kazanjian, whose name was readily discoverable from other witnesses deposed by the plaintiffs, if they could not, in fact, discern her name from the appearance of her signature on the unredacted portion of the “Event Follow Up” form. They could have availed themselves of this opportunity over the course of two years, and could have subpoenaed her trial testimony for her recollections of events leading up to Brynn Cassidy’s demise on the day in question. Plaintiffs did not do so. They have never done so, even before argument on the within motion for post-trial relief took place on July 26, 2010.

In filing a motion for post-trial relief and this appeal raising the same untenable claim as before this court, plaintiffs have led the court to the ineluctable conclusion that they have done so to punish the defendants for prevailing in the cause of action brought against them, calling into play Sir Francis Bacon’s observation that “ [r] evenge is a sort of wild justice, which the more man’s nature runs to, the more ought law to weed it out.” Clearly, it istime to bring an end to the revenge being visited upon the defendants and to weed this endless vexatious claim out of our judicial system.

      . The entire three-page set of documents in their unredacted form, includes a first page not propounded to the plaintiffs bearing the heading, “EVENT REPORT” and “CONFIDENTIAL - Not for distribution” and seeks the recording of information under the headings, “Event Data”; “Event Type”; “Injury Resulting” (beside which appears the single handwritten notation of “Fetal Death”); “Witnesses”; and “Signatures”, and the handwritten signatures of two individuals, “C. Kazanjian, RN” and that of her supervisor, “Margaret T. Speicher”, appearing under the last heading, with both of these individuals having dated their completion of the first page of the within forms as occurring on July 5, 2006. The second page is headed “EVENT FOLLOW UP CONFIDENTIAL - This is a peer review document and may be protected by applicable law. Not for distribution” followed by six headings separating different sections thereof: “EVENT INFORMATION”, “A. PATIENT FALLS”, “B. MEDICATION/IV/TRANSFUSION RELATED - Complete reverse side”, “C. EQUIPMENT/SUPPLIES RELATED EVENTS”, “D. ALL OTHER EVENTS - Describe possible causes”, under which is hand written the current status and request to evaluate Baby Brynn’s condition, with this notation being redacted from the copy supplied by CCMC to the plaintiffs. The signature appearing at the bottom of this second page is Ms. Speicher’s, beside which appears the date of July 5, 2006. The third page bears the heading at its very top of “MEDICATION EVENT DATA”, allowing for the inference that it is a copy of the reverse side of the second page referenced under the section with the heading “B. MEDICATION/TRANSFUSION RELATED - Complete reverse side”. Directly beneath the heading “MEDICATION EVENT DATA” on this third page appear six unmarked, albeit checkable, items for “Primary Error Type”, with choices for - “Wrong drug”, “Wrong dose”, “Omitted dose”, “Wrong route”, “Wrong time”, “Wrong Pt.”, and “Other”, plus a line for stating the number of doses involved “For wrong dose”, had it been thought to have been administered to a patient. Following this first group of checkable categories are six more such items under the heading, “Event Severity (check one only)”: “1 - Error occurred, no harm to patient”; “2 - Error occurred, increased monitoring only; “3 - Error occurred, change in VS, add’l labs, no permanent harm”; “4 - Error occurred, required add’l treatment, increased LOS”; “5 - Error occurred, permanent harm to patient”; and “ 6 - Error resulted in patient death”. It is to the left of Item #6 that an unexplained check mark appears to indicate:
      “Error resulted in patient death.” There are two other section headings: “CONTRIBUTING CAUSES OF EVENT”, beneath which, there appear no markings; and “EVENT ANALYSIS” followed by instructions to “Include additional Information such as staffing patterns, activity level, patient outcome, action plan and conclusions” under which Nurse Kazanjian penned her observations of Mrs. Cassidy’s arrival in the ER following the accident and notes the summoning of physicians to treat her. This handwriting was the only other redaction from this document when it was supplied by CCMC to the plaintiffs. There is no mention whatsoever of any medication being administered to Mrs. Cassidy on this or any other of the three page collection of redacted and unredacted documents, the third bearing Nurse Kazanjian’s signature only, and the date, “7-5-05.” Crucially, there was no redaction of the checkmark appearing beside the item listed at the top of the third page thereof as “Error resulted in patient death.” In addition, although the signatures of the CCMC employees who signed the redacted last two pages of this three- page “Event Follow Up” form that CCMC provided to the plaintiffs in October of 2008 are clear and readable, neither of these employees was ever deposed by the plaintiffs.

      . The applicable provision of the Peer Review Protection Act, 63 Pa.C.S. § 425.4, “Confidentiality of review organization’s records,” provides:
      “The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however, That information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings.” 63 Pa.C.S. §425.4.
      The “Definitions” section of the Act, 63 Pa.C.S. § 425.2, describes “Peer Review,” in relevant part, as “the procedure for evaluation of professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, and the compliance of a hospital, nursing home or convalescent home or other health care facility operated by a professional health care provider with the standards set by an association of health care providers and with applicable laws, rules and regulations...” Pa.C.S. 63 § 245.2.

      . Pennsylvania Rule of Evidence 401 (Definition of “Relevant Evidence”) provides: “’Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Pa.R.E. 401.

      . Pennsylvania Rule of Evidence 402 (Relevant evidence generally admissible; irrelevant evidence inadmissible) provides: “[a]ll relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible,” Pa.R.E. 402.

      . Pennsylvania Rule of Evidence 803(6) [Excepts, in relevant part, from the hearsay rule] “[a] memorandum, report, record. . in any form, of acts, events, or conditions made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, or record...” Pa.R.E. 803.6.

      . Pennsylvania Rule of Evidence 803(25) [Excepts, in relevant part, from the hearsay rule] “[a]dmissions by a party opponent [if] [t]he statement is offered against a party and is (A) the party’s own statement in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship....” Pa.R.E. 803 (25).

      . § 1303.311. Confidentiality and compliance
      (a) Prepared materials. - Any documents, materials or information solely prepared or created for the purpose of compliance with section 310 (b) (patient safety committee responsibilities) or of reporting under section 304 (a)(5) (contracting for collection of data, e.g.) or (b) (allowing for anonymous reports to patient safety committee), 306 (a)(2) (patient safety committee responsibilities to receive reports of serious events) or (3) (to investigate reports of serious events), 307 (b) (3) (patient safety committee’s responsibility for establishing a system for reporting serious events), 308 (a) (reporting and notifying patient safety committee of the occurrence of serious events), 309 (4) (report to patient safety committee), 310 (b)(5) (quarterly report to patient safety committee), or 313 (medical facility reports and notifications) which arise out of matters reviewed by the patient safety committee pursuant to section 310 (b) (patient safety committee responsibilities) or the governing board of a medical facility pursuant to section 310 (b) (id.) are confidential and shall not be discoverable or admissible as evidence in any civil or administrative action or proceeding. Any documents, materials, records or information that would otherwise be available from original sources shall not be construed as immune from discovery or use in any civil or administrative action or proceeding merely because they were presented to the patient safety committee or governing board of a medical facility.

      . It is here noted that, not only did plaintiffs’ counsel not call Nurse Kazanjian as a trial witness, he had not taken her deposition by the time of oral argument on plaintiffs’ motion for post-trial relief on July 26, 2010. It is further noted that during that hearing, plaintiffs’ counsel agreed that no issue involving the subject of medication had ever been raised in the plaintiffs’ case. (7/26/10 N.T. 10)

      . Pennsylvania Rule of Evidence 403 (Exclusion of relevant evidence on grounds of prejudice, confusion or waste of time) provides: “Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Pa.R.E. 403.

      . From Of Revenge, Bartlett, John, Familiar Quotations, p. 119 b (13th and Centennial Ed.) Little, Brown and Company, Boston (1955).


author: WECHT, J.,

text:
    Clark v. Lawrence

      C.P. of Allegheny County,
    no. FD 00-4450-003.

      Alida J. Kornreich, for plaintiff.

      Joel M. Dresbold, for defendant.
    October 7, 2010
   WECHT, J.,

Defendant Charles E. Lawrence (“father”) appeals from this court’s July 14, 2010 order. That order dismissed father’s exceptions from a hearing officer’s recommendation following a support hearing.

Background and Procedural History

Plaintiff Michelle L. Clark (“mother”) and father are the parents of one minor child, Daivonne (d.o.b. 3/1/93). On May 23,2000, mother filed a support complaint against father. At that time, father’s location was unknown to mother or this court. Apparently, the support department located father in 2004, but for reasons unknown the case was never scheduled. Unaccountably, in March 2009, the case finally was scheduled.

At the May 13, 2009 hearing, father appeared by telephone and contested paternity. The case was scheduled for September 14,2009 to review the paternity results and establish support.

At the September 14, 2009 hearing, mother appeared before Hearing Officer Marlene Ashton, Esquire. Father’s counsel appeared. Father attempted to appear via telephone, but the hearing officer did not allow father’s telephone participation because father did not timely submit the proper paperwork. The hearing officer made findings concerning the parties’ incomes, and calculated father’s support obligation using March 13, 2009 as the retroactivity date. 9/14/09 Rec. The hearing officer chose that retroactivity date for three stated reasons: the case was not pursued in a timely manner; high arrears would result from using the date of filing as the retroactivity date; and there was little or no evidence concerning father’s earnings from 2000 to present. Id.

On October 2, 2009, father filed exceptions to Hearing Officer Ashton’s recommendation. Father argued that the hearing officer erred by not allowing father to testify via telephone and that the lack of father’s testimony meant that the hearing officer did not consider father’s other children, father’s expenses, or father’s information concerning mother’s earning capacity. Mother opposed father’s exceptions. Mother also requested that, in the event that a remand was ordered, any hearing be de novo.

In a January 25, 2010 order, this court held that the hearing officer had properly applied the rule regarding telephone testimony. However, out of an abundance of process, this court remanded the case and granted a de novo hearing to allow father to testify.

On March 12, 2010, the remand hearing was held in front of Hearing Officer Gary Gilman, Esquire. (Hearing Officer Ashton had retired, so she could not conduct the remand hearing.) Hearing Officer Gilman found the retroactivity date to be the date of filing - May 22, 2000. The hearing officer found that father did not meet his burden to rebut the presumption that date of retroactivity is the date offiling. 3/12/10 Rec. at 1-2. The hearing officer did find mother to have a higher income than was found at the previous hearing. Id. at 2-3. The hearing officer used father’s income information to determine father’s income for support for 2000 through 2009. Id. at 3-4.

On March 30, 2010, father filed exceptions to Hearing Officer Gilman’s recommendations. Father alleged that it was error to allow a de novo hearing and to permit reconsideration of retroactivity. On July 14, 2010, this court dismissed father’s exceptions.

On August 11, 2010, father filed a notice of appeal. On August 19,2010, this court ordered father to file a concise statement of errors complained of on appeal, pursuant to Pa. R.A.P. 1925 (b). On August 26, 2010, father timely filed his concise statement. On September 29,2010, father filed an amendment to defendant’s concise statement of matters complained of on appeal.

Issues Raised on Appeal

In his Pa. R.A.P. 1925 (b) statement, father averred as follows:

1. The lower court erred by allowing re-litigation on the issue of retroactivity of arrears when the plaintiff had waived the issue of retroactivity by not filing exceptions or cross-exceptions on that issue.
2. The lower court erred in allowing a hearing de novo when a rehearing on support is allowed only on issues for which exceptions are taken.
3. The lower court erred in allowing Hearing Officer Gilman to reconsider the recommendation of Hearing Officer Marlene Ashton that the arrears should be retroactive to March 13, 2009, as Hearing Officer Ashton did not abuse her discretion and adequately explained the reasons the retroactivity date should be March 13, 2009.
4. The lower court erred in sustaining Hearing Officer Gary Gilman’s recommendation that the arrears should be retroactive to May 22, 2000, as the defendant, whose whereabouts could have been ascertained through any reasonable search, was not served the complaint until March 13, 2009 and had no knowledge or control over the case.

Discussion and Analysis

Father’s first three issues on appeal all relate to whether or not it was appropriate for this court to order a de novo hearing. Father argues that a de novo hearing was inappropriate because the remand hearing should have dealt only with issues raised in exceptions and because the original decision on arrears was not an abuse of discretion.

The crux of the matter is the question of whether a de novo hearing was appropriate. If it was, then the issue of retroactivity was something that the hearing officer could consider. If it was not, then retroactivity was res judicata and the hearing officer could not have changed it.

Allegheny County follows Pa. R.C.P. 1910.12 for support hearings, exceptions and remand hearings. Rule 1910.12 does not speak to the kind of remand hearing that should be held following exceptions. It says only that, after argument, the court shall “enter an appropriate final order.” It also says that any matter not covered in exceptions is deemed waived. The language would indicate that a de novo review is not contemplated.

However, in the instant case, a de novo remand was necessary. Father’s dispute with the first hearing was his inability to participate. If the remand hearing was not de novo, then mother would be prejudiced. At the first hearing, mother presented her evidence. However, since father did not present his, mother could not respond to father’s evidence. If, at the second hearing, father was allowed to present evidence, but mother was not, mother would be precluded from fully developing all evidence that she deemed responsive to father’s. Father would have had the opportunity to hear mother’s case in foil and to prepare appropriately, but mother would have had no ability to rebut father’s case, except in cross-examination of father. Once there is the decision to allow father to participate in a new hearing, mother must be given the same opportunity. A hearing is not a hearing unless both parties can tango.

Also, mother was given leave to argue for a de novo remand and a reconsideration of retroactivity. Rule 1910.12 states that matters not covered in exceptions are deemed waived unless that party is given leave to file additional exceptions. In the instant case, mother’s attorney briefed the retroactivity issue, and it was part of the exceptions argument. Given that father was aware that mother would be addressing the issue and participated in the exceptions argument, father was on notice that retroactivity and the demand for a de novo remand hearing were under consideration by the court.

Even if mother did not raise retroactivity in cross-exceptions, she may still raise it in a de novo hearing. In the Zadori case, the mother did not raise the issue of spousal support in her exceptions. Zadori v. Zadori, 661 A.2d 370, 373 (Pa. Super. 1995). However, the trial court found that, in affording the mother due process, her failure did not cause a waiver of her request for spousal support in the de novo hearing before a hearing officer. The trial court was affirmed. Id. There are differences between Zadori and the instant case. In Zadori, the exceptions challenged an interim support order, and the de novo hearing was the first record proceeding. Nonetheless, the principle remains the same. If mother was not allowed to fully participate in the remand hearing, she would be denied due process of law.

Even apart from the due process argument, it was appropriate for the hearing officer to reconsider retroactivity. The first hearing officer did not grant retroactivity back to date of filing because, at least partially, there was a lack of information about father’s earnings from date of filing to present. That lack of information existed because father did not participate in the hearing. Once father participated, at least part of the reason for the first hearing officer’s decision on retroactivity no longer existed.

Essentially, father wants to have his cake and eat it too. Father wanted to participate in the hearing. When that was granted, father wanted to allow only his testimony and to preclude mother from fully participating. Father does not complain that Hearing Officer Gilman reconsidered and increased mother’s income for support. There was simply no fair and equitable way to allow father to testify in the remand hearing without a de novo hearing that also allowed mother to participate fully.

Father’s other allegation of error was that Hearing Officer Gilman should not have set arrears back to date of filing when father did not know about the support complaint. A support order “shall be effective from the date of the filing of the complaint...unless the order specifies otherwise.” Pa. R.C.P. 1910.17 (a). Using the date of filing as the retroactivity date is intended to “alleviate the hardship on a party entitled to support” who may suffer from delay caused by litigation of the case. Crawford v. Crawford, 633 A.2d 155, 163 (Pa. Super. 1993). The longer the delay, “the more apropos retroactivity becomes.” Id. The burden of proof to rebut the presumption of retroactivity lies with the party seeking a retroactivity date other than the date of filing. Christianson v. Ely, 838 A.2d 630, 636 (Pa. 2003)

The Christianson case is instructive. In that case, the mother filed three support complaints: one in 1988, one in 1997 (which was withdrawn), and one in 1999 (which finally resulted in a support order). Id. at 635. The mother argued that retroactivity should go back to the original support complaint in 1988, and the father argued for retroactivity to the 1999 complaint. Id. The court dismissed the father’s claims of laches and estoppel as baseless. Id. at 637. Further, the court found that, although using the 1988 complaint would result in $87,000 in arrears for the father, the amount was not prejudicial. Id. The court held that any dilatory conduct by the mother could not infringe upon the right of the child to support. Id. at 638.

The record supports Hearing Officer Gilman’s conclusion about the date of retroactivity. The hearing officer found mother credible in her testimony about her attempts to find father. 3/12/10 Rec. at 2. Even if mother had engaged in dilatory conduct, Christianson holds that this would not affect the child’s right to support.

Father claimed that he would be prejudiced by the high arrears if retroactivity were set to the 2000 complaint. The hearing officer set the arrears at $48,262, but set father’s monthly payment on arrears at $5 O. Under the Christianson case, the arrears alone are not enough to prejudice father. As the hearing officer noted, the arrears amount is not unusually high. 3/12/10 Rec. at 2.

Unfortunately, this is a case where the court system dropped the ball. Mother provided all the necessary information to find father, but the system did not do anything with it. Father knew he had a child that he was not supporting. The child should not bear the burden of the court system’s failure to find father sooner.

      . The portion in italics reflects the change between father’s August 26, 2010 concise statement and the September 29 amended concise statement. The August 26, 2010 concise statement mistakenly listed May 22, 2000.


author: WECHT, J,

text:
    Commonwealth v. Myers

      C.P. of Lawrence County,
    no. 723 of 2010, C.R.

      Luanne Parkonen, for Commonwealth.

      Dennis A. Elisco, for defendant.
    October 7, 2010
   WECHT, J,

Before the court for disposition is the petition for writ of habeas corpus filedonbehalfofthedefendant Thomas J.Myers (hereinafter, “defendant”). Defendant is charged with unauthorized use of automobiles and other vehicles (18 Pa.C.S.A. § 3928). Defendant argues that there is insufficient evidence as a matter of law to sustain the charge.

A brief summary of the facts alleged indicates that, on June 18, 2010 at approximately 3:30 a.m., defendant returned to his residence after a night of drinking to ask his sister, Darcy Young, if he could borrow her car to get cigarettes. Realizing that defendant was drunk, Darcy refused and went back to sleep. Approximately 15 minutes later, she got up to smoke a cigarette and get something to eat when she noticed that defendant and her car were gone and that her car keys were not where she left them. Darcy’s sister, DeAnna Young, volunteered to drive around the area to look for the car. Deanna found Darcy’s car parked on Florence Avenue near the My House bar. She returned to the residence to notify Darcy that she located the car. DeAnna and Darcy then drove to where the vehicle was located to determine whether the keys were in the car. After discovering that Darcy’s car was no longer where DeAnna found it, Darcy called the police to report that her vehicle was missing. At approximately 3:56 a.m., Patrolman Chris Hardie responded to the call and ultimately located Darcy’s car parked on Bell Avenue west of Fourth Street. Officer Hardie determined that no keys were in the vehicle and that the registration for the vehicle had been revoked. After deciding to have her car towed later that day instead of at that time early in the morning, Darcy returned to her residence.

Later that morning at approximately 7:08 a.m., Officer Hardie was driving by the area where Darcy’s vehicle was found and noticed that her car was gone. Officer Hardie also noticed that defendant was standing nearby at the comer of Fourth Street and Bell Avenue. Officer Hardie asked defendant whether he was looking for a vehicle, and defendant responded, “I’m not looking for any vehicles.” At approximately 9:00 a.m., defendant returned to his residence and fell asleep on the couch. After finding defendant on the couch, Darcy stmggled with defendant and ultimately retrieved the keys to her car from him. Approximately 30 minutes later, Officer Hardie discovered Darcy’s car in a nearby parking lot. Darcy told Officer Hardie that she did not move her car to the parking lot.

On June 21, 2010, defendant was charged with unauthorized use of automobiles and other vehicles. A preliminary hearing was held on July 15, 2010, resulting in the charge being bound over to this court. On September 3, 2010, defendant filed the instant petition for writ of habeas corpus. The court held a hearing on defendant’s petition on October 26, 2010. During the hearing, the commonwealth offered the July 15, 2010 preliminary hearing transcript and indicated that it was relying on the evidence presented during the preliminary hearing to satisfy its burden at this stage.

The petition for Writ of Habeas Corpus is the proper means for testing a pre-trial finding that the commonwealth has sufficient evidence to establish a prima facie case. Commonwealth v. Hendricks, 927 A.2d 289, 290-91 (Pa. Super. 2007). A prima facie case consists of evidence that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of the crime. Commonwealth v. Fountain, 811 A.2d 24, 25 (Pa. Super. 2002). The commonwealth has the burden of establishing a prima facie case, offering some proof to establish each material element of the offense as charged. Commonwealth v. Owen, 580 A.2d 412,415 (Pa. Super. 1990). The commonwealth need not prove the elements of the crime beyond a reasonable doubt. Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001). The prima facie case merely requires evidence of the existence of each element of the crime charged. Id. Additionally the evidence is to be viewed in a light most favorable to the commonwealth, and the commonwealth is entitled to reasonable inferences drawn from the evidence. Id.

The offense of unauthorized use of automobiles and other vehicles is governed by § 3928 of the crimes code, which states that a “person is guilty of a “misdemeanor of the second degree if he operates the automobile...of another without consent of the owner.” 18 Pa.C.S.A. § 3928(a). In order to establish that a violation of § 3928 occurred, evidence must be presented that the defendant operated a vehicle without the owner’s consent and that the defendant knew or had reason to know that he lacked the owner’s permission to do so. Commonwealth v. Carson, 592 A.2d 1318, 1321 (Pa. Super. 1991). Operation of the vehicle may be proven through direct testimony that the defendant was seen driving the vehicle or through circumstantial evidence that the defendant exercised conscious control or dominion over the vehicle. Commonwealth v. Henry, 875 A.2d 302, 305 (Pa. Super. 2005). Although such dominion or control may be established by circumstantial evidence, “mere suspicion or conjecture will not suffice.” In the Interest of Scott, 566 A.2d 266, 267 (Pa. Super. 1989).

In Henry, the appellant was charged with unauthorized use of automobiles and other vehicles after the appellant’s fingerprints were found on a placard in a stolen vehicle. Henry, 875 A.2d at 303-04. Evidence was presented that the owner of the vehicle did not know or have any kind of relationship with the appellant. Id. at 303. The commonwealth argued that, because the victim did not know the appellant, there was no legitimate reason for the appellant’s fingerprints to be found in the vehicle and that the appellant must have been the individual who took the vehicle. Id. at 304. The appellant argued that no one saw him in the vehicle and that the existence of his fingerprints on the placard in the vehicle only shows “mere presence” in the vehicle, which is legally insufficient to prove operation or control of the vehicle. Id. at 305. The Superior Court of Pennsylvania agreed, stating that “[s]ince the vehicle was found more than a day after being reported stolen with the driver’s side door lock broken, Appellant could have had access to the interior of the vehicle after it was abandoned by the perpetrator who stole the car.” Id. at 306. The court concluded that “operation of the vehicle is an essential element of the crime of unauthorized use of automobiles, and the evidence presented was insufficient to establish the element[.]” Id.

In In the Interest of Robert Wood, 419 A.2d 1316 (Pa. Super. 1980), the appellant was charged with unauthorized use of automobiles and other vehicles after the appellant’s father’s car and keys, which were left on top of the television set before the appellant’s father went to sleep, were taken in the middle of the night. Wood, 419 A.2d at 1317. The commonwealth presented evidence that there were no signs of forced entry and that only members of the family had access to the house by key. Id. The appellant’s father also testified that the family’s dog did not bark at any time during the night that the car keys were taken from the home, even though the dog always barks at strangers entering the house unless they are accompanied by a member of the family. Id. The commonwealth also pointed to the fact that appellant never returned home after the car and keys were taken as evidence of the appellant’s guilt. Id. After considering the evidence presented by the commonwealth, the Superior Court found “a very weak link” between the appellant and the removal of the keys and car. Id. at 1318. As a result, the court determined that the commonwealth did not sufficiently prove that the appellant was responsible for the removal of the keys and car. Id.

In the case sub judice, evidence was presented that defendant asked to borrow Darcy’s car, that defendant and the car were gone shortly thereafter, and that defendant was found with the car keys over five hours after the car was misplaced. As in Henry and Wood, defendant was never seen in Darcy’s vehicle. No direct evidence was presented indicating that defendant exercised control over the car. Although evidence was presented that defendant had the opportunity to take the car, it is clear from the record that others also had access to the keys and car around the time they were taken. By demonstrating that defendant possessed the keys after the car was removed, the commonwealth did present circumstantial evidence that defendant had control over the vehicle. However, defendant was found with the keys more than five hours after the car was taken. To conclude from this circumstantial evidence that defendant was responsible for the removal of the car would amount to mere conjecture. At this stage, the commonwealth is entitled only to reasonable inferences drawn from the evidence. Therefore, defendant’s Petition for Writ of Habeas Corpus is granted.

ORDER OF COURT

And now, November 5, 2010, the court having held a hearing on October 26, 2010 regarding defendant Thomas J. Myers’s petition for writ of habeas corpus, with Assistant District Attorney Luanne Parkonen, Esquire, appearing and representing the commonwealth, and Assistant Public Defender Dennis A. Elisco, Esquire, appearing and representing the defendant, the court finds and it is hereby ordered and decreed as follows:

1. The defendant’s petition for writ of habeas corpus is granted pursuant to the attached opinion.
2. The clerk of courts shall properly serve notice of this order and attached opinion upon counsel of record, Assistant District Attorney Luanne Parkonen, Esquire, and Assistant Public Defender Dennis A. Elisco, Esquire; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: VAN JURA, J,

text:
    Wissinger v. Brady

      C.P. of Luzerne County,
    no. 3792-2010.

      Linda L. Bartlett, for plaintiffs.

      Aaron S. Decker, for defendant Brady.

      James A. Doherty Jr., for defendant Laubach.

      Chester F. Darlington Jr. and Curtis C. Johnson, for defendant State Farm.
    November 3, 2010
   VAN JURA, J,

PROCEDURAL AND FACTUAL HISTORY

This post Koken case involves the issue of proper venue in which the plaintiffs have filed a five (5) count complaint, in Luzerne County, consisting of separate wrongful death and survival counts against defendant, Jennifer L. Brady, and defendant, Linda Marie Laubach; negligent infliction of emotional distress counts against defendants, Brady and Laubach; a claim for underinsured motorist benefits against defendant, State Farm Mutual Automobile Insurance Company (“State Farm”), and a bad faith claim against the defendant, State Farm, pursuant to 42 Pa. C.S.A. Section 8371.

Counsel for the individual defendant, Jennifer L. Brady, filed preliminary objections alleging improper venue in Luzerne County and requesting that the matter be transferred to Northumberland County.

This court entered an order transferring the case and the official record to Northumberland County.

The plaintiffs filed a notice of appeal from the said order to the Superior Court of Pennsylvania.

This opinion follows, pursuant to Pa. R.A.P. 1925.

LAW AND DISCUSSION

The individual defendant, Jennifer L. Brady’s, initial preliminary objections raise the issue of improper venue in Luzerne County based on Pa. R.C.P. 1006(a)(1) which provides:

“Rule 1006. Venue. Change of Venue
(a) Except as otherwise provided by subdivision (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which
(1) the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law...”

Essentially, defendant Brady’s argument is that there is no basis for venue in Luzerne County against the defendant, Brady, because the motor vehicle accident in question did not happen here nor can the defendant, Brady, be served here.

Defendant, Brady, in her supplemental brief in support of her preliminary objections to plaintiffs’ complaint, additionally argues that:

“Rule 1006 (c)(1) of the Pennsylvania Rules of Civil Procedure states than “an action to enforce joint and several liability against two or more defendants...may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of subdivisions (a) or (b).” Pa.R.C.P., No. 1006 (c)(1), 42 Pa.C.S.A. Rule 2179(a)(2) of the Pennsylvania Rules of Civil Procedure permits that “a personal action against a corporation or similar entity may be brought in... (2) a county where it regularly conducts business [.]” Pa.R.C.P., No. 2179(a)(2), 42 Pa.C.S.A.
In the instant case, the co-defendant, State Farm Mutual Automobile Insurance Company, is not a potential Joint Tortfeasor with the defendant driver and cannot be adjudged jointly liable with the defendant for the full amount of the verdict. As such, Rules 1006 and 2179 of the Pennsylvania Rules of Civil Procedure are inapplicable and the instant case should be transferred to Northumberland County.”

Pa. R.C.P. 1006(b) provides that venue in action against corporation, such as the defendant, State Farm Mutual, is governed by Pa. R.C.P. 2179 which provides as follows:

“Rule 2179. Venue
(a) Except as otherwise provided by an Act of Assembly, by Rule 1006(a)(1) or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in
(1) the county where its registered office or principal place of business is located;
(2) a county where it regularly conducts business;
(3) the county where the cause of action arose;
(4) a county where a transaction or occurrence took place out of which the cause of action arose; or
(5) a county where the property or part of the property which is the subject matter of the action is located provided that equitable relief is sought with respect to the property.

Note: Rule 1006(a.l) governs venue in actions for medical professional liability.

(b) An action upon a policy of insurance against an insurance company, association or exchange, either incorporated or organized in Pennsylvania or doing business in this Commonwealth, may be brought

(1) in a county designated in Subdivision (a) of this rule, or
(2) in the county where the insured property is located; or
(3) in the county where the plaintiff resides, in actions upon policies of life, accident, health, disability, and live stock insurance or fraternal benefit certificates.”

The venue relevant facts in this case are as follows:

(A) All the plaintiffs are residents of Northumberland County;
(B) The plaintiff, Dennis Wissinger, Jr., was appointed as Administrator of the Estate of Wanda M. Wissinger, deceased, by the Register of Wills of Northumberland County;
(C) The individual defendants, Brady and Laubach, do not reside in Luzerne County and were both served in Danville, Montour County;
(D) The motor vehicle accident in question occurred in Northumberland County, Pa.,
(E) The defendant, State Farm, “...is a duly licensed insurance carrier...with offices and/or agents throughout Pennsylvania, including in Luzerne County (plaintiffs’ complaint, Paragraph 8);
(F) There is no applicable and controlling venue provision in the State Farm Policy. C’Hara v. The Liberty Ins. Corp. d/b/a Liberty Mutual Ins. Co., 984 A.2d 938 (Pa. Super. 2009);
(G) No request for severance was filed by any defendant; and
(H) The complaint does not aver joint liability between the defendant, State Farm, and any other defendant.

The plaintiffs’ position is that venue in Luzerne County is proper as to all defendants because Pa. R.C.P. 2179(a)(2) provides that “...a personal action against a corporation...may be brought in and only in...(2) a county where it regularly conducts business...” and further that Pa. R.C.P. 2179(b)(1) provides: “An action upon a policy of insurance against an insurance company...may be brought...in a county designated in subparagraph (a) of this rule...”

“[J]urisdiction references the power of a court to entertain and adjudicate a matter while venue certains to the locality most convenient to the proper disposition of a matter.” Searles Estrada, 856 A.2d 85 (Pa. Super. 2004) appeal denied, 871 A.2d 192(2005)

A trial court is vested with discretion in determining whether or not to grant a petition to transfer venue. Mathues v. Tim-Bar Corp., 652 A.2d 349 (Pa. Super. 1994). “[A] plaintiff’s choice or venue is not absolute or unassailable.” Jackson v. Laldlaw Transit, Inc. & Ladlaw Transit, Pa., Inc., 822 A.2d 56 (Pa. Super. 2003). The determination will not be overturned absent an abuse of discretion and if any proper basis exists for the trial court’s decision, the decision must stand. Masel v. Glassman, 689 A.2d 314 (Pa. Super. 1997); Zappala v. James Lewis Group, 982 A.2d 512 (Pa. Super. 2009)

The post-Koken combination of tort and contract actions, combined in one complaint, has generated venue decisions with differing results. See Sehl v. Neff and State Farm, May Term 2009, No. 2487 (Phila. Co. Oct. 22, 2009) Allen J. (case transferred to Montgomery County); Campbell v. Kelly and State Farm, December Term 2009 No. 208 (Phila. Co. March 12, 2010). (Venue held proper in Philadelphia County.)

In terms of the different rules of civil procedure relied upon by the plaintiffs and the defendant, Brady, the Rules of Civil Procedure themselves give us guidance on their construction:

Rule Rules in Pari Materia
Rules or parts of rules are in pari materia when they relate to the same proceedings or class of proceedings.
Rules in part materia shall be construed together, if possible, as one rule or one chapter of rules.
Adopted May 1, 1939, effective Nov. 6, 1939.
Amended April 18, 1975, Imd. effective.

Under the circumstances of this unsevered set of claims, venue in this case is properly laid in Northumberland County.

The plaintiff’s are residents of Northumberland County and that is, likewise, where the motor vehicle accident in question occurred. By the plaintiffs’ own averment in their complaint, the defendant, State Farm, does business throughout Pennsylvania, which would, by application, aver that it also does business in Northumberland County. (The record does not address whether the plaintiff’s actually purchased the policy of insurance in question in Northumberland County; whether they made premium payments there and/or did business through a State Farm agent in Northumberland County. Therefore, these factors will not be considered here.)

The parties and issues in this action have no nexus to Luzerne County, beyond the allegation that defendant, State Farm, does business here, as it does throughout Pennsylvania.

The plaintiffs' sole argument for venue in Luzerne County, that of State Farm’s “doing business” in Luzerne County (Pa. R.C.P. 2179(a)(2)), pales when one considers the aggregate of venue contacts with Northumberland County.

Under the rules, providing that an action against an individual or a corporation may be brought in a county where a transaction or occurrence took place out of which the cause of action arose, it is appropriate, in analyzing whether a “‘transaction or occurrence’” took place in a given county, to examine the nature of the claims asserted and the elements constituting the cause of action.” The purpose of the rule governing venue against a corporation “is to permit a plaintiff to institute suit in the county most convenient for him and his witnesses and to assure that the county selected has a substantial relationship to the controversy between the parties and is thereby a proper forum to adjudicate the dispute” Deyarmin v. Consolidated Rail Corporation, 931 A.2d 1 (Pa. Super. 2007).

The venue relevant facts recited previously place the most proper venue for this action in Northumberland County and not in Luzerne County.

Luzerne County has no substantial relationship to the controversies or the parties involved.

Even granting that State Farm regularly conducts business in Luzerne County, State Farm is not a potential joint tortfeasor with either or both of the individual defendants and could not be found jointly liable with either or both of them. See Flaxman v. Burnett, 574 A.2d 1061 (Pa. Super. 1990); Paradise Streams, Inc. v. Edward Hess Associates, Inc., 33 Pa. D.&.C. 3d 472 (1984).

It was for the foregoing reasons that this court entered its prior order transferring this matter to Northumberland County.

The prothonotary is directed to serve notice of the entry of this order pursuant to Pa. R.C.P.236.


author: BERNSTEIN, J.,

text:
    Anthony Biddle Contractors, Inc. v. Preet Allied American Street, L.P.

      Diana A. Dichter, for plaintiff.

      David E. Stern, for defendants.
    October 26, 2010
   BERNSTEIN, J.,

Plaintiff Anthony Biddle Contractors, Inc. (“Biddle”) was a contractor on a condominium construction project (the “condominium”) owned by defendant Preet Allied American Street, L.P. (“Preet”). Biddle sued Preet for payment for the work Biddle performed on the condominium. The parties entered into a settlement agreement under which Biddle was to purchase one of the units at the condominium (the “Unit”). Defendant Abington Savings Bank (“Abington”) gave Preet a loan to fund the condominium construction and held a mortgage against the entire condominium property.

As part of the settlement between Preet and Biddle, Preet was supposed to convey the unit to Biddle free and clear of Abington’s mortgage interest in the condominium. Preet represented to Biddle that Abington had agreed to this condition. Preet failed to close on the sale of the unit, so Biddle filed this lawsuit to enforce the settlement agreement. In the meantime, Abington called a default under the construction loan, confessed judgment against Preet, and executed against the entire condominium. The condominium was sold at sheriff’s sale to defendant American Street Lofts, LLC (“ASL”).

Biddle joined Abington and ASL as defendants in this action. Biddle claimed ASL was a mere alter ego of Abington’s and asserted claims for specific performance, promissory estoppel, constructive trust, and intentional interference with contract against both defendants. On May 17, 2010, Abington and ASL moved for summary judgment on all of Biddle’s claims. On September 22, 2010 this court granted the motion for summary judgment in favor of the defendants. It is from this order that Biddle now appeals.

Biddle failed to produce evidence of facts essential to its claims against ASL. Specifically, Biddle failed to offer any evidence to show that ASL was an alter-ego of Abington or that there were any other grounds for piercing the corporate veil of ASL.

[Tjhere is a strong presumption in Pennsylvania against piercing the corporate veil. Any court must start from the general rule that the corporate entity should be recognized and upheld, unless specific, unusual circumstances call for an exception. Care should be taken on all occasions to avoid making the entire theory of corporate entity useless.... [T]he factors to be considered in disregarding the corporate form [are] undercapitalization, failure to adhere to corporate formalities, substantial intermingling of corporate and personal affairs and use of the corporate form to perpetrate a fraud.

Biddle did not show that ASL, or Abington, did any of these wrongful things. Therefore, judgment was entered in favor of ASL on all of Biddle’s claims.

Biddle failed to produce evidence of facts essential to its claim against Abington for promissory estoppel. Under the theory of promissory estoppel

a promise which the promisor should reasonably expect to induce action or forbearance on the part of the promise or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

Biddle did not show that Abington made any promise to allow the unit to be sold to Biddle free and clear of Abington’s mortgage lien. The only evidence of such promise was an email from Preet’s attorney to Biddle’s attorney in which Preet’s attorney stated that he was “happy to report that the bank has approved our settlement agreement.” He did not identify the basis for his knowledge. Standing alone, this vague statement by Preet’s agent did not establish the existence of Abington’s alleged promise to remove its lien, which promise served as the basis for Biddle’s entire case against Abington.

Biddle failed to produce evidence of facts essential to its claim against Abington for specific performance.

Specific performance is an equitable remedy that permits the court to compel performance of a contract when there exists in the contract an agreement between the parties as to the nature of the performance. Specific performance should only be granted where the facts clearly establish the plaintiff’s right thereto, where no adequate remedy at law exists, and where justice requires it. Further, a plaintiff will not be successful in an action for specific performance if the evidence is so uncertain, inadequate, equivocal, ambiguous, or contradictory as to render findings or legitimate inferences therefrom mere conjecture.

Specific performance may be granted in cases involving the transfer of interests in real property, such as the condominium unit at issue here. However,

The party that would ask a chancellor to decree specific performance in his favor has the burden of proof thrown on him. He knows, or is presumed to know, that the law requires, as evidence of the title to land, that the contract [he is trying to enforce] must be made in writing.
Biddle failed to show any oral promise, let alone a written contract, by which Abington agreed to the conveyance of the unit free and clear of Abington’s mortgage. Furthermore, since Abington never owned either the condominium or the unit, the court could not compel Abington to transfer the unit to Biddle.

Biddle failed to produce evidence of facts essential to its claim against Abington for constructive trust/unjust enrichment.

The elements of unjust enrichment are benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. The most significant element of the doctrine is whether the enrichment of the defendant is unjust; the doctrine does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff.

Biddle did not show that it would be unjust for Abington to retain the unit. Biddle did not dispute that Abington had a mortgage lien against the condominium and that Abington caused the condominium to be sold at sheriff’s sale. Biddle’s only basis for claiming that Abington’s foreclosure was unjust was its allegation that Abington agreed to remove its lien from the unit and, implicitly, not to foreclose against that unit. Since Biddle failed to prove that Abington entered into any such agreement, it failed to prove that Abington’s foreclosure against the unit was unjust. Furthermore, Biddle failed to show that it conveyed any benefit on Abington when Biddle agreed to settle its claims against Preet and purchase the unit.

Biddle failed to produce evidence of facts essential to its claim that Abington intentionally interfered with the settlement agreement between Biddle and Preet. The elements of a claim for tortious interference with contract are:

(1) the existence of a contractual relationship between the plaintiff and a third party;
(2) purposeful action on the part of the defendant intended to harm the relationship;
(3) the absence of privilege or justification on the part of the defendant; and
(4) actual damages resulting from the defendant’s conduct.

Biddle failed to show that Abington’s interference, i.e., the foreclosure, was without privilege or justification. Biddle’s only basis for claiming that Abington’s foreclosure was without justification was its allegation that Abington agreed to remove its lien from the unit and, implicitly, not to foreclose against that unit. Since Biddle failed to prove that Abington entered into any such agreement, it failed to prove that Abington, as mortgagee, lacked the privilege to foreclosure on its mortgage.

Since Biddle failed to prove at least one necessary element of each of its claims against Abington, summary judgment was properly entered in favor of Abington on all of those claims and the decision of the court should be affirmed.

      . “The alter ego theory [of veil piercing] is applicable only where the individual or corporate owner controls the corporation to be pierced and the controlling owner is to be held liable. That is quite distinct from the situation where two or more corporations share common ownership and are, in reality, operating as a corporate combine. This latter theory has been labeled the enterprise entity theoiy or the single entity theory. Miners, Inc. v. Alpine Equip. Corp., 722 A.2d 691, 695 (Pa. Super. 1998).

      . Lumax Indus, v. Aultman, 543 Pa. 38, 41-42, 669 A.2d 893, 895 (Pa. 1995).

      . Thatcher’s Drug Store v. Consolidated Supermarkets, 535 Pa. 469, 476, 636 A.2d 156, 160 (Pa. 1994).

      . Lackner v. Glosser, 892 A.2d 21, 31 (Pa. Super. 2006).

        . Kurland v. Stolker, 533 A.2d 1370, 1373 (Pa. 1987).

      . “A constructive trust is not a trust in the ordinary sense of the term but simply an equitable remedy designed to prevent unjust enrichment.” Patrick & Wilkins Co. v. Reliance Ins. Co., 456 A.2d 1348, 1351 (Pa. 1983).

      . Commerce Bank v. First Union Nat’l Bank, 911 A.2d 133, 143-144 (Pa. Super. 2006).

      . Soeckinger v. Presidential Fin. Corp. of Delaware Valley, 948 A.2d 828, 834 (Pa. Super. 2008).