text:
    Commonwealth v. Harding

      C.P. of Lackawanna County,
    No. 13 CR 1885

      Shane Scanlon, for Commonwealth.

      Robert M. Buttner, for defendant.

      April 13, 2015
   MINORA, J.,

Factual Background

On or about May 5, 2013 members of the Scranton Police Department were dispatched by the Lackawanna County Communications Center to the 700 block of Vine Street in the City of Scranton, Lackawanna County, Pennsylvania. The nature of the call was that a male had been shot in this geographic area. Upon their arrival the police found a black male, later determined to be Rashan Crowder, lying in the roadway with a gunshot wound to the chest.

Medical personnel were summoned and arrived at the scene. These personnel unsuccessfully initiated life saving measures. They subsequently transferred Mr. Crowder to Geisinger Community Medical Center. The victim, Rashan Crowder was later pronounced dead at Geisinger.

On May 6,2013 an autopsy was performed by a forensic pathologist on the decedent. The results of that autopsy as noted by Lackawanna County Coroner Tim Rowland indicated that Crowder, the decedent, had sustained two gunshot wounds, one to the chest and one to his right thigh. The cause of death was the gunshot wound to his chest. The manner of death was listed as a homicide. As a result of the initial investigation and the autopsy findings the police began a criminal investigation into this incident.

The police investigation determined that Crowder was a student at Lackawanna College and lived across Vine Street from the site of his death in the Tobin Hall dormitory of Lackawanna College. Numerous witnesses, not all in concurrence, led police to determine what occurred on or about May 5, 2013.

Decedent Crowder was apparently accompanied on that fateful night by a friend named Shaquille Isbell. Isbell was an eye witness to the relevant events. Isbell told police that he was a friend of decedent Crowder and attended Lackawanna College with him.

Earlier that evening Isbell and Crowder attended a house party in the 400 block of Monroe Avenue in Scranton about two blocks from the area of the shooting. There may have been some words exchanged at the party but Isbell and Crowder peacefully left that party and walked to other locations in their Hill Section neighborhood and to a mini mart and returned to their dormitory. After the passage of time Isbell and Crowder left their dormitory and returned again to the mini mart.

Upon leaving the mini mart to return, for the second time, to their dormitory they happened upon a group of males and females on the comer of Monroe Avenue and Vine Street just up the street from the original party earlier that evening. The two groups began to give each other “attitude” and trash talking and insults back and forth. The unfortunate result of this exchange was that a male member of the group produced a handgun firing it at Rashan Crowder striking him in the right thigh. After the shooting, a University of Scranton security car happened to arrive at the scene thus causing the two groups to separate and walk down the 800 block of Vine Street from Monroe Avenue towards Madison Avenue, the location of the Tobin Hall dormitory. During this one block plus walk, words, trash talk and insults resumed.

The arguments continue beyond Madison Avenue on Vine Street to an area in the 700 block of Vine Street near Moir Court. At that point, a second male from the group begins to goad the male into shooting the decedent for a second time. Repeatedly, the second male encourages and urges the first male to fire again. When the second shot occurs, it hits decedent Crowder in the chest fatally injuring him. At that point, the group of males and females all flee the area.

Subsequent interviews and investigation and review of security video revealed that the shooter was our defendant, Ryan Harding. He was determined to be the man holding the gun. The co-defendant, Marlon Clotter was also identified as the male coaxing, encouraging and goading Ryan Harding to fire two shots at decedent Rashan Crowder.

Ryan Harding was bom on May 13, 1995. At the time of this offense on May 5, 2013, Harding had just turned eighteen (18) years of age two days prior to the crime. At the time of sentencing, Harding was nineteen (19) years of age.

Ryan Harding’s Criminal Complaint

As a result of the slaying on May 9, 2014, the City of Scranton Police Department filed two police complaints, one against Ryan Harding and one against Marlon Clotter.

The criminal complaint and subsequent criminal information against Harding alleges that Harding fatally shot Crowder. It charges Harding with murder in the first degree, 18 Pa. C.S.A. §2502(a) and murder in the third degree, 18 Pa. C.S.A. §2502(c) and two criminal conspiracy counts to commit murder in the first and third degree, 18 Pa. C.S.A. §903(a)(l). Other charged criminal conduct includes two counts of aggravated assault, 18 Pa. C.S.A. §2702(a)(l) for the handgun shooting of Crowder in both the right thigh and the chest.

Finally, Harding was charged with two weapons charges: Possession of Firearm Prohibited, 18 Pa. C.S.A. §6105(a)(l) and firearms not to be carried without license, 18 Pa. C.S.A. §6106(a)(l).

On May 21, 2013, Harding was arrested in Syracuse, New York based upon the arrest warrant prepared pursuant to the May 9, 2013 criminal complaint.

Procedural Background

On August 30,2013, Clotter’s preliminary hearing was held before magisterial district judge Sean McGraw. On September 30, 2013 by order of president judge Thomas J. Munley, the undersigned was appointed to preside over this case. On November 7, 2013, discovery deadlines and motion deadlines were set as well as a tentative trial date for August of 2014. On November 6, 2013, the district attorney for Lackawanna County issued a four count bill of information against Clotter. Defendant Clotter was formally arraigned the same day. Defendant Harding who had initially fled was later arrested in Syracuse, New York.

On January 15,2014, defense counsel filed an extensive omnibus motion on behalf of defendant Clotter. Defendant Harding joined in as well as filing his own motion. The Commonwealth responded to the omnibus on February 4, 2014. On July 3, 2014, the court decided both Harding’s and Clotter’s voluminous omnibus motion in a lengthy consolidated opinion.

On November 5, 2014, a joint sentencing hearing was held for both defendant Clotter and the shooter, our defendant Ryan Harding. After consultation with the court reporter, it was determined that this joint proceeding began on November 5, 2014 at 10:01 a.m. and concluded at 1:30 p.m. It is most unusual for a sentencing proceeding to take three and one half hours even if a joint one. In this case, it was done to allow extensive victim/family/ friend testimony and also to allow substantial defendant allocution. The court covers its reasons for the sentencing scheme for defendant Harding starting at page 121 to page 192, N.T. Proceedings of Sentencing, 11/5/14.

Subsequent to sentencing, on November 14, 2014, counsel for defendant Harding filed a reconsideration of sentence. That motion was denied on November 17, 2014 by order of this court. Defendant Harding’s notice of appeal to the Pennsylvania Superior Court was filed on December 15,2014 and their concise statement of matters complained of on appeal was filed on February 20, 2015, thus giving rise to this opinion.

Appellate Arguments of Defendant Harding

A. Did the Trial Court err and abuse its discretion by imposing a manifestly excessive sentence at the highest end of the standard range of the Pennsylvania Sentencing Guidelines, by failing to consider the relevant sentencing criteria of the Pennsylvania Sentencing Code including, but not limited to, the personal characteristics of the defendant, the rehabilitative needs of the defendant and the actual need for the protection of the public, the presence of mitigating circumstances and, then, failing to state sufficient reasons on the record for the sentence imposed?

B. Did the Trial Court err and abuse its discretion by imposing a manifestly excessive sentence at the highest end of the standard range of the Pennsylvania Sentencing Guidelines by solely focusing on the defendant’s immature and imprudent request that the court, on the record, identify the statute under which he was being sentenced, thereby interpreting that the defendant lacked an ability to take responsibility for his actions and show remorse or did not respect the authority of the court, in violation of the defendant’s right to allocution?

C. Did the Trial Court err and abuse its discretion in failing to run the defendant’s sentence for firearms not to be carried without a license concurrent to the sentence imposed with regard to murder of the third degree where the aggregate sentence fails to abide by the goals and norms of the Pennsylvania Sentencing Code and is not justified when the appropriate sentencing criteria, set forth in Issue A, are considered?

Legal Standards

A. Did the Trial Court err and abuse its discretion by imposing a manifestly excessive sentence at the highest end of the standard range of the Pennsylvania Sentencing Guidelines, by failing to consider the relevant sentencing criteria of the Pennsylvania Sentencing Code including, but not limited to, the personal characteristics of the defendant, the rehabilitative needs of the defendant and the actual need for the protection of the public, the presence of mitigating circumstances and, then, failing to state sufficient reasons on the record for the sentence imposed?

B. Did the Trial Court err and abuse its discretion by imposing a manifestly excessive sentence at the highest end of the standard range of the Pennsylvania Sentencing Guidelines by solely focusing on the defendant’s immature and imprudent request that the court, on the record, identify the statute under which he was being sentenced, thereby interpreting that the defendant lacked an ability to take responsibility for his actions and show remorse or did not respect the authority of the court, in violation of the defendant’s right to allocution?

Both arguments A and B are addressed to the court allegedly abusing its discretion in sentencing. Argument A alleges an abuse of discretion for imposition of a sentence at the highest end of the standard range, “where there are no reasons stated sufficiently on the record justifying the sentence imposed.” Argument B alleges the sentence imposed was manifestly harsh and excessive and an abuse of discretion and a violation of defendant’s right to allocution? Since both allege an abuse of discretion violation and for similar factual reasons we shall address both arguments A and B concurrently.

It bears noting initially that this court does not concede for one moment the stated rationale of defendant that his “imprudent” allocution impacted on the court’s choice of sentencing alternatives in this case. Further, we challenge defendant to cite to anyplace in the record where such a baseless allegation is supported by the transcript of record. Previous counsel’s belief that defendant’s allocution improperly and/or inaccurately impacted on Harding’s sentence is without foundation in the pleadings, or within the transcript or record.

As further background, this sentence being challenged is as a result of a guilty plea by defendant Harding. It is therefore axiomatic that only three theories of appeal are given to defendant. First, that the plea was not knowing or voluntary. Second, that the court lacked jurisdiction, and third, that the sentence imposed was illegal.

Since the arguments regarding the first and second theories are not being raised, we will allow the third reason, attacking the legality of the court’s sentence, to guide our reasoning.

In Com. v. Lee, 876 A.2d408, 411 (Pa. Super. 2005), the Superior Court noted that, “...Appellant’s right to appeal the discretionary aspects of his sentence is not absolute.” Further, “It is well-settled that a ‘claim that the sentence imposed by the trial court was manifestly excessive is a challenge to the discretionary aspects of the sentence.’” Id. at 411.

“The Lee court goes on to cite Com. v. Bishop, 831 A.2d 656, 660 (Pa. Super 2003) for the proposition that two requirements must be met prior to reaching the merits of a challenge to the discretionary aspects of a sentence. First, the appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of his sentence, (citations omitted). Second, he must show that there is a substantial question that the sentence imposed is not appropriate under the sentencing code ... 42 PA. CONS.STAT.ANN §9781(b). In order to establish the existence of a substantial question, the appellant must show, ‘actions by the sentencing court inconsistent with the sentencing code or contrary to the fundamental norms underlying the sentencing process.’”

Com. v. Bishop, 831 A.2d at 660; Com. v. Lee, 876 A.2d at 411.

Assuming those prerequisites are met, the appeals court must then engage in a four pronged analysis

“[W]e conduct a four part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa. R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa. R.Crim.P. 1410 [now rule 720]; (3) whether appellant’s brief has a fatal defect, PA. R.A.P. 2119(a); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the sentencing code, 42 PA. C.S.A. §9781(b).”

Com. v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006); Com. v. Antidormi, 84 A.3d 736, 759 (2014).

Since the analysis is within the purview of the appeals court, we will presume these matters are in order and we will address defendant’s issues on their merits.

The notes of transcript of sentencing from November 5, 2014, beginning at page 120-130 discuss the nature of the plea bargain and guilty plea. Thereafter, the court’s concern with Harding’s extensive juvenile record is discussed along with his juvenile incarceration at Glen Mills. Thereafter, recent violations of Harding at Luzerne County Prison were explored at N.T. pp. 158-160. That pattern of repetitive involvements with the juvenile justice system along with his relative youth upon completion of any sentence were also discussed. The defendant is a product of a supportive home life. See N.T. Proceedings of Sentencing 11/5/14 at 154. He has the benefit of two months rehab at Clearbrook Lodge and about eighteen (18) months at Glen Mills plus intensive juvenile probation upon release. Despite all of these opportunities, Harding returns to his old habits that got him in trouble in the first place. The obvious task is formulating a sentence that is consistent with the protection of the public and their safety. Especially, when defendant Harding was active in retrieving, aiming and shooting the weapon used two times. Id., at 160-165, 173-176. Harding is the guy who brings a gun to a fist fight.

In addition, the gravity of the offense is in need of analysis. Third degree murder and weapons offenses are serious felonies, but even more so when committed by Harding, a defendant under intensive juvenile supervision without any legal right to possess let alone use weapons and ammunition. We remain guided by the offense gravity score but the nature of the offense needs to be recognized and the opportunities to avoid it.

The encounter leading to the first shot to Crowder’s right thigh occurred on Monroe Avenue and Vine Street. The defendant Harding and his group could have retreated down Monroe Avenue to avoid the situation and also had the means and opportunity to retreat throughout.

Other avenues of retreat existed in the alley west of Monroe Avenue between Monroe Avenue and Madison Avenue. A third opportunity to retreat also existed on Madison Avenue itself. Finally, they fled in Moir Court after the second and fatal shot. Four opportunities to avoid the confrontation were squandered by the defendant. These opportunities to retreat were being encouraged by some in defendant’s group. Even if defendant initially failed to consider retreat he was encouraged to walk away by Corey Williams and instead he stayed and encouraged escalating the use of the gun to increase the violence and danger rather than decrease it. Such poor judgment must be considered as this court believes it persists within the defendant to the date of sentencing.

The profound impact of taking the life of the victim Rashan Crowder as equipped (weapon) and persisted by Harding cannot be understated. The extensive testimony by the victim’s family and friends was both moving and remarkable. This crime had an extensive impact on the college community at Lackawanna College in Scranton as well as the victim’s home town of Harrisburg, Pennsylvania.

The sentence as fashioned by the court also tries to address defendant’s potential for rehabilitation. It is a twenty-three and one half year minimum. If defendant behaves in prison and takes advantage of prison’s educational opportunities he could be out long before his forty-seven year maximum. At his minimum, he would be approximately forty-one years old, still shy of middle age. In being on parole, it is hoped that the structure of future parole supervision out of jail would afford Harding the discipline needed to thrive on the outside. Tellingly, this crime occurred while on juvenile supervision from Glen Mills. It is hoped that a future parole experience will benefit defendant from this experience and be more successful. The long tail hopefully insures defendant remains motivated to continue to correct his past behavior and lifestyle and avoid returning to his criminal ways.

With these rationales in mind, we must now address the concept of abuse of discretion. The court stands accused of abusing its’ sentencing discretion. The cases require that the sentencing court’s advantageous perspective of viewing the defendant not be disturbed absent a, “manifest abuse of discretion.” Com. v. Smith, 543 Pa. 566, 570-571, 673 A.2d 893, 895 (1996).

As stated in Smith, an abuse of discretion is more than a mere error in judgment. The record must show the sentencing court’s judgment was manifestly unreasonable or the result of partiality, prejudice, bias or ill-will or such lack of support as to be clearly erroneous. Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038, 1046 (2003).

The rationale behind the broad discretion given to the trial court and the appellate court’s deferential standard of review is, as noted, the sentencing court is in the best position to determine the proper penalty for the particular offense based upon and evaluation of the individual and the circumstances before it. Com. v. Jones, 613 A.2d 587, 591 (Pa. Super. 1992), en banc. The sentencing court is recognized in the case law to be in a superior position to “...view the defendant’s character, displays of remorse, defiance or indifference and the overall effect of the nature of the crime.” Id., at 591.

The sentencing code at 42 Pa. C.S.A. §9721(b) illustrates the legal sentencing options available to the court. It also lists the factors the court should consider such as protecting public safety, the gravity of the offense, the impact of the life of the victim and the community and the rehabilitative needs of the defendant. 42 Pa. C.S.A. 9721(b). Thus, sentencing is individualized.

Furthermore, there are sentencing guidelines that the court must also consider. The guidelines are just that, guidelines for the court to consider. They are not mandatory but a deviation from these guidelines must be accompanied by a written explanation justifying and explaining the deviation. The core focus of such a review of a guideline deviation explanation is whether the individual sentence remains reasonable. At 42 Pa.C.S.A. §9781(c)(3), it is explained that the appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if the appellate court finds, “(c) (3), the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.” Emphasis added. Here, the court remained within the sentencing guidelines.

In making this reasonableness inquiry, the statute at 42 Pa. C.S.A. §9781(d) directs the appeals court to review, “(1) The nature and circumstances of the offense and the characteristics of the defendant.” We have shown the defendant’s bringing a gun to a fist fight, retrieving the gun, twice employing the gun’s use and ignoring opportunities to retreat that were pointed out to him. We also showed defendant’s extensive record and recent prison misconduct. “(2) The opportunity of the sentencing court to observe the defendant including pre-sentence investigation.” 42 Pa. C.S.A. §9781(d)(2). We have already noted the lengthy sentencing hearing on November 5, 2014 wherein a lengthy colloquy with defendant Harding was conducted. We noted we read the pre-sentence report as well as all last minute filings and letters. “(3) The findings upon which the sentence was based.” 42 Pa. C.S.A. §9781(d)(3) these are noted in the notes of transcript as well as earlier in this opinion. Finally, “(4) The guidelines promulgated by the commission” are noted on the first page of the pre-sentence report. 42 Pa. C.S.A. §9781(d)(4). Both 42 Pa. C.S.A. §9781(c) and (d) prohibit a sentence outside of the guidelines which is unreasonable.

As noted in the case of Com. v. Walls, 592 Pa. 557, 926 A.2d 957, 963 (2007), unreasonable is a term not defined by statute but in Walls, our Supreme Court notes that “unreasonable” commonly connotes a decision that is “irrational” or “not guided by sound judgment.”

Given the scheme of individual sentencing without the statute defining “unreasonable” the Walls court concludes that the concept of unreasonableness is to be, "... a circumstance-dependent concept that is flexible in understanding and lacking precise definition.” Id., at 963.

The Walls court determined by applying the guidelines under 42 Pa. C.S.A. §9781(c)(3) and (d) and 42 Pa. C.S.A. §9721, we can be guided upon a reasonableness inquiry without fashioning any concrete rules to govern such an inquiry.

As the Walls court notes, the guidelines are advisory and non-binding. The sentencing court has no duty to impose a sentence considered appropriate by the commission. The guidelines need only to be considered by the sentencing court and to insure such consideration is substantive, the sentencing court must explain their departure from such guidelines. The guidelines are but one factor among many to be considered as per the Sentencing Code. Id., at 964, 569.

Since these guidelines are not mandatory, the sentencing court retains broad discretion in sentencing matters and therefore, they are empowered to sentence outside the guidelines although with an accompanying explanation as to why the guidelines are not reasonable in a given case. Id., at 569, 570, 964. The Wall court concludes that in essence, the sentencing guidelines are advisory guideposts that are valuable as providing an essential starting point. The guidelines are to be respected and considered however, they recommend rather than require a particular sentence.

Since we hold that defendant Harding was given an individualized sentence based upon the relevant sentencing code factors as well as with the respect and consideration of the guideline recommendations we conclude that upon review of the record, the post sentence motion and the Pa. R.A.P. 1925 issues, the court has fashioned a reasonable individualized sentence for this defendant not in any way abusing its discretion to so do.

C. Did the Trial Court err and abuse its discretion in failing to run the defendant’s sentence for firearms not to be carried without a license concurrent to the sentence imposed with regard to murder of the third degree where the aggregate sentence fails to abide by the goals and norms of the Pennsylvania Sentencing Code and is not justified when the appropriate sentencing criteria, set forth in Issue A, are considered?

Once again, an allegation within this statement of matters complained of states a position as fact to which this court disagrees. The statement is that by sentencing defendant Harding consecutively on his weapons charge, rather than concurrently that decision by this court somehow creates a sentence, where the aggregate sentence fails to abide by the goals and norms of the Pennsylvania Sentencing Code and is not justified when the appropriate sentencing criteria set forth in Issue A are considered.”

Harding fails to note specifically what goals and norms he is considering. Harding also further fails to note how this court’s sentence fails to abide by the unspecified goals and norms not noted.

In the case of Com. v. Austin, 66 A.3d 798 (Pa. Super. 2003), the Superior Court noted that state law affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentence being imposed at the same time. This reflects our factual scenario.

The Austin, supra, court goes on to note that any challenges to the exercise of this discretion ordinarily does not raise a substantial question that a resentence is appropriate under the sentencing code as is required for a court to reach the merits of a challenge to the discretionary aspects of a sentence. See also Com. v. Brisk, 13 A.3d 526 (Pa. Super. 2011) for a similar result.

In Com. v. Greer, 554 A.2d 980 (Pa. Super. (1989), the Superior Court found that consecutive sentences for rape and robbery which were also to ran consecutively to sentences in a factually similar but unrelated case was not an abuse of discretion. The rationale for their conclusion that such consecutive sentences were not an abuse of discretion was articulated. The court noted that the sentences were within the statutory limits and were not manifestly excessive. The judge referenced the defendant’s extensive criminal record and noted there was no anticipated rehabilitation of the defendant. These were deemed adequate reasons for the consecutive sentence.

As noted above, Harding was a juvenile offender who had been incarcerated and was under intensive juvenile probation at the time the murder and weapons charges occurred. Harding had prison violations while awaiting sentence in this case. He chooses to at least associate with gang members, and his prospects for rehabilitation were at best suspect. Greer is substantially similar to our case.

Defendant Has Failed to Submit a Substantial Question

First it should be noted as per pages 190-191 in the N.T. of Proceedings of Sentencing on November 5, 2014, neither the sentence for murder in the third degree at 18 Pa. C.S.A. §2502(c) nor the sentence for weapons or firearms violations at 18 Pa. C.S.A. § 6106(a)(1) exceeds the standard guidelines as calculated relative to defendant Harding.

As per the notes of transcript noted above, the standard guidelines for the murder three were one hundred and thirty-eight (138) months to two hundred and forty (240) months minimum with a forty (40) year statutory maximum. Harding’s sentence for the murder three was a minimum of two hundred and forty (240) months to a maximum of four hundred and eight (480) months. Regarding the weapons charges, defendant Harding’s standard range was thirty (30) months to forty-two (42) months minimum. The sentence imposed was a forty-two (42) month minimum to eight-four (84) months maximum consecutive to the murder three.

The defendant’s objection is to the consecutive nature of the sentences. However, the defendant fails to raise a substantial question suitable for review. In the case of Com. v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), the Superior Court noted that in a similar challenge, “Of these offenses only the trial court’s sentence pursuant to subsection 2705 falls out of the standard guidelines. Id.; [Com. v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007)]. Therefore, we conclude that appellant has presented a substantial question only with regard to his sentence under subsection 2705. See Robinson, supra. Emphasis added. In the interests of completeness, we shall also do an analysis regarding an abuse of discretion in the unlikely event that the argument of the sentence being contrary to fundamental norms is accepted.

Finally, in Com. v. Lewis, 911 A.2d 558 (Pa. Super. 2006) the court held that a claim that a sentencing court failed to consider certain mitigating factors also fails to raise a substantial question suitable for review.

Abuse of Discretion Analysis

We have noted at page 9, supra, that it is well settled that with regard to the discretionary aspects of sentence there is no automatic right of appeal per Com. v. Austin, 66 A.3d at 807-808 and Com. v. Antidormi, 84 A.3d at 759.

The four part analysis is noted there at page 9 and need not be repeated here. However, the four parts are linked by the conjunction “and” meaning all four elements are required. Further, the fourth element is, “(4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code 42 Pa. C.S.A. § 9781(b).” As noted above, this element cannot be proven per Antidormi and Robinson, supra, since the court’s sentence as imposed never departed from the standard range minimum, thus it never presents the required substantial question fourth element.

Nevertheless, we will address substantively the allegations that the court abused its discretion and violated norms of sentencing despite remaining in the standard range of mínimums on all charges.

The standard of review in challenging the discretionary aspects of a sentence are well settled. Per Antidormi, supra. at 760. The standard of review is articulated as follows:

“Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Id.

A review of the transcript of sentence shows that the court sentenced on all counts within the standard range therefore it seems beyond cavil that you cannot argue that the court ignored or misapplied the law.

Further, a similar argument can be raised to rebut defendant’s argument that the court exercised its judgment for reasons of partiality, bias or ill will or arrived at a manifestly unreasonable decision.

Essentially, the court has three general options when considering a sentencing decision. Per the non-binding guidelines, the court can sentence a defendant in the mitigated range, the standard range or the aggravated range. In seeking to discern a sentencing court’s reasonableness, we look to the four factors from 42 Pa. C.S.A. §9781(d).

The nature and circumstances of the offense and the character of defendant Harding are dealt with in the sentencing transcript. The file from adult probation and parole, which was not just read but studied intently by the court, gave us a detailed background on Harding. This information regarding juvenile activity was calculated into Harding’s prior record score. The nature of his offenses led to calculation of his respective offense gravity scores. Those calculations lead to the sentencing guidelines. The court was guided by and stayed within the standard range of the sentencing guidelines.

As the sentencing court, we have had numerous opportunities to observe the defendant. 42 Pa. C.S.A. §9781(d)(2). We had the defendant appear before us briefly on November 6, 2013 for his formal arraignment and we had the defendant Harding before us on November 5, 2014 for the three plus hours of sentencing procedure. A portion of those proceedings was a one-on-one colloquy between the court and the defendant. All of this being supplemented by a pre-sentence report and last minute filings and letters. These opportunities to observe and interact with Harding, gave the court more than adequate time, background and observation to join the defendant and his character into its sentencing decisions.

Per 42 Pa. C.S.A. §9781(d)(3), the court articulated the findings upon which its sentence was based. On page 121 of the sentencing transcript of November 5, 2014, we called the Harding case. See N.T. of Proceedings of Sentencing 11/5/14,121.

The Commonwealth articulated how Harding’s conduct on the date of the crime showed hardness of heart and indifference to the value of human life. Id., 122.

Going back to the misjudgment of going elsewhere to retrieve the gun, they bring a gun to a fistfight. They had no need to go back and seek out a confrontation but Harding carrying the gun made that poor choice. Then there is a cursory reference to a gang affiliation which the court disregarded because Harding denied it as a poor judgment in his past and not reflective of his present. Id., 122-123.

That leads to “disrespect” as being the rationale for the shooting. At the first shot, the gun jams and Harding recycles the shell and shoots Crowder in the right thigh. Two chances to reflect therein. The gun jams, does Harding take that as an opportunity to back away? No. He clears the gun, recycles the shell into the chamber and shoots Crowder in the right thigh. He has no regrets or PTSD from shooting a human being. He takes none of the geographical opportunities to leave it at that. He continues down the street and fires a second fatal shot. Id., 124-125).

By the age of fourteen (14) years Harding is committing house burglaries. Id., 127. He was sent to Glen Mills, a juvenile facility, to try to get him to turn his life around. He is then on intensive juvenile probation when this crime occurs. Once again, an opportunity to change a bad situation into a chance to improve it and Harding makes the wrong choice, making a serious situation worse. These are Harding’s choices. Id., 128-129.

On page 131, defense counsel shows that Harding’s murder charge carries and offense gravity score (OGS) of fourteen (14), his weapons charge carries an OGS of nine (9) and both carry a prior record score of three (3). Id., 131. The standard range for third degree murder is one hundred and thirty-eight (138) months to two hundred and forty (240) months minimum. Mitigated range is one hundred and twenty-six (126). On the firearms charge, the mitigated range is eighteen (18) months and the standard range is thirty (30) to forty-two (42) months minimum. From page 132 to page 138, the defense presented their version of the facts largely from the presentence report. Subsequent to that, they argued that defendant’s background justifies leniency from the court.

At page 147-149 N.T. 11/5/14, the defendant began to express his remorse to the victim’s family and friends gathered in court. In that apology, he argues his acts were reckless bom of fear and of the victim and not an intentional act. The court’s view of this explanation was that it was not credible for three reasons. First, Harding voluntarily retrieved his weapon. Second, he had four avenues of retreat if he was tmly scared and this would eliminate the need to fight. Third, the defendant fired his weapon twice with a possible third unsuccessful attempt. These weapon discharges were about one and a half blocks apart. A University of Scranton police car happened by and interrupted this scene. This afforded Harding more than adequate time to reflect on his actions and change his behavior and if he was not disposed to do so Corey Williams urges Harding to leave the situation. Id., 147.

None of these opportunities for avoidance nor mitigation were pursued by Harding and when suggested, such a less malignant course of action was overruled by Harding. The final insult to the facts occurred at N.T. 11/5/14 p. 150 wherein our armed defendant Harding characterized the physically larger victim as the aggressor. Line 6-7, pg. 150, “The victim was the aggressor, not me.”

The court overtly challenged Harding’s characterization of the victim at N.T., 11/5/14, p. 150-151. Defense counsel said at N.T. 11/5/14, p. 152 that defendant’s version of the conduct still equates with the third degree murder guilty plea since Harding’s conduct showed, “...recklessness, hardness of heart all those things Attorney Klein talked about in his opening remarks.” Lines 8-9 and indifference for human life in obviously shooting and firing a gun at another individual. Id., 1521ns. 12-16.

Despite a stable parent situation at N.T. 11/5/14, p. 154 Ins. 16-25, Harding made poor substance abuse choices N.T. 11/5/14, p. 153. He had two (2) months at Clearbrook and eighteen (18) months at Glen Mills to make better decisions and choices but when released on intensive probation, he commits this act. Id., 155-156.

We accept defendant Harding’s denial of a current membership in the Crips, but he still has to explain current prison misconduct at N.T. 11/5/14, p. 158-160 while being held in the Luzerne County Correctional Facility.

Further, defendant Harding gives his version of events in a dialogue with the court from page 162 through 176 N.T. 11/5/14. He also tries to convince the court that his life is “going good” before this. Id., 179 in. 18. The court challenged Harding on this “good” view at N.T. 11/5/14 p. 179-181.

Finally, from N.T. 11/5/14 p. 182-190 Harding seeks the court’s authority to sentence him which was explained though probably not to Harding’s satisfaction. Then per 42 Pa. C.S.A. §9781(d)(4) sentences within the standard range of the guidelines are imposed. See Id., 190-192. The sentences imposed are imposed consecutively and also in accord with 42 Pa. C.S.A. §9781(c) and (d) which prohibit a sentence outside of the guidelines which is unreasonable.

The court reviewed defendant’s age, prior criminal record (juvenile), personal characteristics and potential for rehabilitation per Antidormi, supra, at 761. Due consideration was given to the statutory considerations, the sentencing guidelines and the defendant’s personal characteristics and his potential for rehabilitation. When doing so, a pattern of behavior emerged wherein the defendant chose to hang with the wrong type of people. Defendant chose to use the wrong type of substances. Defendant made choices post incarceration as a juvenile and while on intensive probation to reconnect with the wrong types of people. Defendant also made the choices to violate probation by the use of alcohol, drugs and carrying a weapon and ammunition. Once arrested, after his flight from our area to Syracuse, he continued to have misconducts in prison. Defendant directs us to his graduation from high school while in jail and his college applications calling it “all good” while ignoring the bad.

We make no judgment as to the college applications contemplated nor the need to finish high school in jail rather than in a normal setting, but what does emerge is a young man who chooses to do what he pleases, when he pleases, how he pleases and without regard for the rule of law or the constraints of probation. His behavior prior to this offense and up to sentencing time, including rationalizing his prison misconduct while awaiting sentence, persuades this court that the defendant has adopted a posture of behavior that is self-centered, self-directed and self-rationalizing. All this with little or no serious regard for the life he took when he chose to shoot an unarmed victim two times at two different locations and lots of time to reflect upon his conduct during the commission of these crimes. This even to the point of rejecting the common sense advice to let it go offered by Corey Williams.

It is respectfully submitted that the court has imposed an appropriate sentence given the most serious nature of the offense. Defendant Harding made a conscious, reasoned decision to discharge his weapon at two separate sites, two separate times towards an unarmed victim, Rashan Crowder who died as a result. Harding had a plethora of opportunities to defuse the situation if his fear was genuine, but he knew he had a gun and he chose two times (at least, excluding gum jams) at two sites to bring a gun to a fistfight.

He was not in the heat of the moment. They walked approximately one city block to a block and one half between firings and Harding had time to ignore sound advice to depart from the situation. Harding chose to do it his way when he wanted and where he wanted and how he wanted. However, he will not get what he wanted from this court.

The sentence was imposed with thoroughness, thought and extended dialogue with Harding and his counsel. There is no evidence of bias, prejudice or improper motive. There is sufficient evidentiary basis within the record to justify the sentencing decisions made. There is no real substantial question that can form the basis for Harding’s appeal. There are no violations of the sentencing code nor is it contrary to fundamental norms which underline the sentencing process. This is especially so since all sentences are in the standard range. Accordingly, the trial court respectfully requests affirmance.


source: Caselaw Access Project

author: COX, J.,

license: Public Domain

text:
    Dean v. Aaron’s Inc.

      C.P. of Lawrence County,
    No. 11453 of 2011

      Pro se plaintiff.

      Sean R. Riley, for defendant.
    April 15, 2015
   COX, J.,

Before the court for disposition are the preliminary objections to plaintiff’s complaint pursuant To Pa.R.C.P. 1028(a)(4) [sic] of defendant Aaron’s Inc. which argue that the plaintiff’s claims pursuant to Pennsylvania’s Fair Credit Extension and Uniformity Act (hereinafter “FCEUA”) and Unfair Trade Practices and Consumer Protection Law (hereinafter “UTPCPL”) are legally insufficient as the plaintiff has failed to allege that the plaintiff purchased or leased goods for personal, family or household purposes, there was no averment of ascertainable loss based on plaintiff’s reliance on the defendant’s alleged representations and there are no allegations that the plaintiff’s reliance on the defendant’s representations was justifiable.

The plaintiff David J. Dean, III, avers that the defendant Aaron’s, Inc., engages in the business of collecting debts. In 2008, the defendant contacted the plaintiff to verify the employment history of an individual named “Jennifer” stating that “Jennifer” listed him as a reference. The defendant also requested permission to contact the plaintiff if it was unable to reach “Jennifer” in the event of an emergency and the plaintiff agreed. The plaintiff avers that the defendant did not inform him that he was being used as a credit reference as opposed to an employment reference. The defendant contacted the plaintiff on seven occasions between May of 2011 and August of 2011 concerning a debt owed by “Jennifer.” However, the plaintiff avers that each time the defendant contacted him, they failed to inquire about the location of “Jennifer.”

The plaintiff filed suit asserting that the defendant’s debt collection process violated the FCEUA as the repeated telephone calls were meant to harass and abuse the plaintiff. In response, the defendant filed preliminary objections to plaintiff’s complaint pursuant To Pa.R.C.P. 1028(a)(4) [sic] of defendant Aaron’s Inc. which argue that the plaintiff’s claims pursuant to the FCEUA and UTPCPL are legally insufficient as the plaintiff has failed to allege that the plaintiff purchased or leased goods for personal, family or household purposes, there was no averment of ascertainable loss based on plaintiff’s reliance on the defendant’s alleged representations and there are no allegations that the plaintiff’s reliance on the defendant’s representations was justifiable.

“A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insufficient.” Cooper v. Frankford Health Care System, Inc., 960 A.2d 134, 143 (Pa. Super. 2008) (citing Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001)). A demurrer must be resolved based solely on the pleadings, no testimony or evidence outside of the complaint may be considered to dispose of the legal issue presented. Id. “All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.” Hess v. Fox Rothschild, LLP, 925 A.2d 798, 805 (Pa. Super. 2007) (citing Cardenas, supra.). A demurrer will only be sustained in cases where the complaint fails to set forth a valid cause of action. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008) (citing McArdle v. Tronetti, 426 Pa.Super. 607, 627 A.2d 1219, 1221 (1993)). If a doubt exists regarding whether a demurrer should be sustained, the doubt must be resolved in favor of overruling the demurrer. R.W. v. Manzek, 585 Pa. 335, 351, 888 A.2d 740,749 (2005) (citations omitted). Fact-based defenses are irrelevant when ruling on a preliminary objection in the nature of a demurrer. Werner v. Plater-Zyberk, 799 A.2d 776, 783 (Pa. Super. 2002)(citing Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987)). “A ‘speaking demurrer’ is defined as ‘one which, in order to sustain itself, requires the aid of a fact not appearing on the face of the pleading objected to, or in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection and is condemned both by the common law and the code system of the pleading.’” Regal Indus. Corp. v. Crum and Forster, Inc., 890 A.2d 395, 398 (Pa. Super. 2005) (quoting Black’s Law Dictionary 299 (6th ed. 1991)). The court is not permitted to consider a speaking demurrer in rendering its decision on preliminary objections. Id.

The plaintiff claims that the defendant violated 73 P.S. § 2270.4(b)(l)(i), (iii),(b)(3), (b)(4)(v), (b)(4)(vi), (b)(5) (x) and (b)(6), which state as follows:

(b) By creditors. — With respect to debt collection activities of creditors in this Commonwealth, it shall constitute an unfair or deceptive debt collection act or practice under this act if a creditor violates any of the following provisions:
(1) Any creditor communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall:
(i) identify himself, state thatheis confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer;
(iii) not communicate with any such person more than once unless requested to do so by such person or unless the creditor reasonably believes that the earlier response of such person is erroneous or incomplete and that such person now has correct or complete location information;
(3) Except as provided in paragraph (1), without the prior consent of the consumer given directly to the creditor or the express permission of a court of competent jurisdiction or as reasonably necessary to effectuate a postjudgment judicial remedy, a creditor may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, a debt collector, the attorney of the debt collector or the attorney of the creditor.
(4) A creditor may not engage in any conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this paragraph:
(v) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse or harass any person at the called number.
(vi) Except as provided in paragraph (1), the placement of telephone calls without meaningful disclosure of the caller’s identity.
(5) A creditor may not use any false, deceptive or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this paragraph:
(x) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

The FCEUA is enforced through the remedial provision of the UTPCPL located in 73 P.S. § 201-9.2 as 73 P.S. § 2270.04(a) states, “[it] shall constitute an unfair or deceptive debt collection act or practice under this act if a debt collector violates any of the provisions of the Fair Debt Collection Practices Act.” Kaymark v. Bank of America, N.A., 11 F.Supp.3d 496, 507 (W.D. Pa. 2014). As a result, a plaintiff seeking to recover under the FCEUA must demonstrate that he or she “1) purchased or leased goods or services primarily for a personal, family, or household purpose; 2) suffered an ascertainable loss of money or property; and 3) the loss occurred as a result of the use or employment by a person of a method, act, or practice declared unlawful by the UTPCPL.” Id., 11 F.Supp.3d at 507-508 (citing 73 P.S. § 201-9.2(a)). The essential elements of any UTPCPL claim are the plaintiff must suffer an ascertainable loss and the loss was the result of reliance on the defendant’s conduct. Id., 11 F.Supp.3d at 508 (citing Ash v. Cont’l Ins. Co., 593 Pa. 523, 932 A.2d 877, 881 (2007)). A plaintiff is required to demonstrate that he or she suffered an ascertainable loss of money or property as a result of the defendant’s actions. Id. (citing Weinberg v. Sun Co., 565 Pa. 612, 777 A.2d 442, 446 (2001)); See also Benner v. Bank of America, N.A., 917 F.Supp.2d 338 (E.D. Pa. 2013) (citing Brock v. Thomas, 782 F.Supp.2d 133, 137 (E.D. Pa. 2011); Baynes v. George E. Mason Funeral Home, Inc., 2011 WL 2181469 (W.D. Pa. 2011); Rubenstein v. Dovenmuehle Mortg., Inc., 2009 WL 3467769 (E.D. Pa. 2009); Solarchick ex rel. Solarchick v. Metro. Life Ins. Co., 430 F.Supp.2d 511 (W.D. Pa. 2006)). Ascertainable loss does not include costs of filing suit or reasonable attorney fees. Grimes v. Enterprise Leasing Co. of Phila., LLC, 105 A.3d 1188, 1193-1194 (Pa. 2014).

In the current case, the plaintiff avers that the defendant contacted him in 2008 via telephone concerning a reference for an individual named “Jennifer” regarding her employment history. The defendant also requested permission to contact the plaintiff in the event of an emergency and it is unable to contact “Jennifer.” The plaintiff agreed to be the emergency contact for “Jennifer”; however, the plaintiff was under the impression that the reference was related to employment opportunity for “Jennifer” and not a credit reference. The plaintiff claims the defendant’s use of the term reference misled him to believing that he was providing an employment reference and not a credit reference. The defendant subsequently contacted the plaintiff seven times between May of 2011 and August 2011.

The plaintiff has failed to aver several of the essential elements for a claim based upon violations of the FCEUA and the UTPCPL. First, the plaintiff has failed to aver that the defendant willfully misrepresented that it was calling for an employment reference instead of a credit reference concerning “Jennifer.” According to the complaint, the defendant merely asked for a reference and did not specify what type of reference it was seeking. Hence, the plaintiff has failed to aver that the defendant utilized a deceptive practice when it requested a reference for “Jennifer.” It must be noted that the plaintiff did not inquire as to what type of reference the defendant was seeking; he merely assumed that it was an employment reference. Moreover, the plaintiff has failed to state that he suffered an ascertainable loss of money or property due to the defendant’s conduct. The complaint states that the plaintiff received seven telephone calls from the defendant between May of 2011 and August of 2011, but he does not specify that those calls attributed to any loss of money or property. Although, the plaintiff may have been inconvenienced from the repeated telephone calls he received requesting that he instruct “Jennifer” to call the defendant, the complaint is devoid of any allegation that he suffered an ascertainable loss caused by those calls. According to the established case law, ascertainable loss is an essential element of any FCEUA or UTPCPL claim and the plaintiff has failed to aver that he received an ascertainable loss.

For the reasons set forth in this opinion, the defendant’s preliminary objections are granted and the plaintiffs complaint is dismissed as he failed to allege a legally sufficient claim based upon a violation of the FCEUA or the UTPCPL.

ORDER OF COURT

Now this 15th day of April, 2015, this case was before the court on March 30, 2015, for oral argument on the preliminary objections to plaintiff’s complaint and both parties appeared, the plaintiff David J. Dean, III, appeared pro se and the defendant Aaron’s, represented through counsel, Sean R. Riley, Esquire and after consideration of the statements made by the parties and the brief submitted by the defendant, and a complete and thorough review of the applicable file, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the preliminary objections filed by the defendant are hereby sustained.

2. The complaint filed by the plaintiff is hereby dismissed with prejudice.

3. The prothonotary is directed to serve a copy of this order of court upon counsel of record and if a party has no counsel, then upon that party at their last known address contained in the file.

      . It must be noted that the complaint does not provide “Jennifer’s” last name.


author: NEALON, J.,

text:
    Kujawski v. Fogmeg

      C.P. of Lackawanna County,
    No. 12 CV 3395

      Bradley D. Moyer, for plaintiff.

      Joseph P. Pulcini, Jr., for defendant Joseph Fogmeg.

      Christin L. Kochel, for defendant Allstate Insurance Company.
    April 15, 2015
   NEALON, J.,

The parties ’ submissions in this automobile accident litigation concern the issue of whether a plaintiff’s third party liability claim and underinsured motorist (UIM) claim may be tried in a single proceeding before the same jury, and if so, what instructions should be provided to the jury regarding the named parties and the questions to be decided by the jury. Since the liabilities of the tortfeasor and the UIM insurer for damages arise from the same factual background and involve common questions of law and fact, plaintiff’s liability and UIM claims will be consolidated for a single trial pursuant to Pa.R.C.P. 2229(b). Moreover, inasmuch as the identification of the UIM insurer as a real party in interest and a potential provider of UIM coverage does not introduce evidence of the tortfeasor’s liability insurance in violation of Pa.R.E. 411, the UIM carrier will be identified as a named defendant furnishing prospective UIM coverage so that the jury will understand the participating UIM insurer’s status as an adverse party to the plaintiff.

However, the questions of plaintiff’s residency and her entitlement to UIM benefits under her grandparents’ policy with the UIM insurer do not arise out of the same occurrence or involve common questions of law or fact as the parties’ liability and damages issues, and as such, are not amenable to complete joinder. Therefore, the trial will be bifurcated pursuant to Pa.R.C.P. 213(b) with the jury first addressing the merits of plaintiff’s personal injury claim and rendering a verdict on the liability and damages issues. If the jury awards damages in excess of the tortfeasor’s liability insurance policy limits, thereby triggering UIM coverage, a second phase of the trial will be conducted to determine whether plaintiff was a resident of her grandparents’ home at the time of the accident so as to be entitled to UIM benefits under the UIM carrier’s policy. In the event that the jury awards damages in an amount less than the tortfeasor’s liability insurance policy limits, the issue of plaintiff’s residency and the applicability of her grandparents’ UIM coverage will be rendered moot.

I. FACTUAL BACKGROUND

Plaintiff, Jessica Kujawski (“Kujawski”), commenced this civil action against defendants, Joseph Fogmeg (“Fogmeg”) and Allstate Insurance Company (“Allstate”), as a result of an automobile accident which occurred on June 4,2010, when Kujawski was a passenger in a vehicle operated by an uninsured motorist, Stephanie Williams. (Docket entry no. 1 at ¶¶ 1-8). Kujawski contends that Fogmeg negligently caused the accident by failing “to stop his vehicle at a clearly marked stop sign” and crashing “into the side of Ms. Williams’ vehicle. (Id. at ¶ 9-10). Kujawski seeks to recover economic and noneconomic damages from Fogmeg for negligently causing her injuries, and further demands underinsured motorist (UIM) benefits from Allstate on the ground that Fogmeg’s liability insurance coverage is inadequate to fully compensate Kujawski for her accident-related losses. (Id attf 18-46, 77-83).

Allstate does not dispute Fogmeg’s negligence in causing the accident, but “is contesting the factual cause and severity of [Kujawski’s] claimed injuries.” (Docket entry no. 33 at p. 1). “Allstate also submits that [Kujawski] was not an Allstate insured at the time of the accident as she was not residing with the named Allstate insureds, Richard and Marion Pehanich.” (Id.). As a result, Allstate asserts that Kujawski “is not entitled to underinsured motorist benefits” under Allstate’s policy. (Id.).

After Kujawski filed a Certificate of Readiness and the court administrator scheduled a status conference before the undersigned on March 6,2015, this matter was scheduled for a jury trial beginning on May 11, 2015. (Docket entry nos. 26-28). By order dated March 6,2015, the parties were directed to submit memoranda of law “setting forth their positions with respect to: (a) whether [Kujawski’s] third party liability and underinsured motorist (UIM) claims may be tried in a single proceeding before the same jury; (b) what instructions should be provided to the jury by the court if the liability and UIM claims are consolidated for a single trial; and (c) what factual issues should be decided by the jury if the liability and UIM claims are joined for a single trial.” (Docket entry no. 28). Kujawski and Allstate submitted their briefs on April 2,2015, and April 6,2015, respectively, and Fogmeg filed his brief on April 9, 2015.

Kujawski maintains that the liability and UIM claims should be litigated in a single trial since they both “involve the same operative facts,” “the same witnesses,” “the same causation issues” and “the same testimony.” (Docket entry no. 32 at p. 9). “Allstate has no objection to the third party and underinsured motorist claims being tried in a single proceeding before the same jury.” (Docket entry no. 33 at p. 2). “Allstate also has no objection to Allstate being listed as a party on the caption at the time of trial.” (Id.).

Fogmeg opposes a joint trial of the liability and UIM claims, and argues that “[t]he evidence that must be offered by [Kujawski] in support of her UIM claim is wholly irrelevant to the underlying liability claim against defendant Fogmeg.” (Docket entry no. 35 at p. 4). Fogmeg submits that the tort and UIM claims should be bifurcated pursuant to Pa.R.C.P. 213(b), which empowers the court to order a separate trial of claims or issues “in furtherance of convenience or to avoid prejudice,” and requests that the jury first decide the liability and damages issues, and “[i]n the event that [Kujawski] damages exceed the policy limits of defendant Fogmeg,” then proceed to a second phase of the trial before the same jury to decide Kujawski’s “status as a resident relative.” (Id. at p. 5). More importantly, Fogmeg contends that during the proposed first phase of the trial, Kujawski “should be precluded from mentioning the UIM claim and the existence of the UIM policy” and “Allstate should be removed from the case caption to avoid the risk that defendant Fogmeg will be unfairly prejudiced by the premature introduction of evidence regarding insurance coverage.” (Id.).

With regard to the instructions to be furnished to the jury, Kujawski “requests that this court follow the jury instructions given by this court in Moritz v. Horace Mann Property & Casualty Insurance Company, 2014 WL 5817681 (Lacka. Co. 2014).” (Docket entry no. 32 at p. 11). Since the instructions in Moritz were applicable to a case in which UIM coverage was undisputed and the claimant had already received payment of the tortfeasor’s liability insurance policy limits, Allstate asserts that the portions of the Moritz charge discussing stipulated UIM coverage and the prior payment of liability insurance limits should be redacted from the jury instructions in this case. (Docket entry no. 32 at pp. 2-3). Fogmeg contends that regardless of whether his requested bifurcation is granted, “the jury instructions should not include any language referencing the existence of Allstate as [Kujawski’s] UIM carrier” since Fogmeg would be “severely prejudiced by introducing evidence of insurance in a manner expressly frowned upon by Pa.R.E. 411.” (Docket entry no. 35 at p. 6).

II. DISCUSSION

(A) JOINDER OF LIABILITY AND UIM CLAIMS FOR TRIAL

Prior to 2005, jury trials were not conducted in claims for uninsured motorist (UM) or underinsured motorist (UIM) benefits since those disputes were subj ect to binding arbitration due to Pennsylvania Insurance Department regulations mandating insurance policy language requiring arbitration of UM/UIM claims. Moritz, supra, at *2 (citing Ronca & Sloane, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law at pp. 6-14 to 6-20 (3d ed. 2013)). In Insurance Federation of Pennsylvania, Inc. v. Koken, 585 Pa. 630, 889 A.2d 550 (2005), the Supreme Court of Pennsylvania overruled Prudential Property and Casualty Insurance Company v. Muir, 99 Pa. Cmwlth. 620, 513 A.2d 1129 (1986), and held that the Insurance Department does not have the express or implied authority to require binding arbitration of UM/ UIM claims. Koken, 585 Pa. at 637-638, 889 A.2d at 555. “In the wake of Koken, insurance policies now make arbitration of UM/UIM disputes optional or conditioned upon the insurer’s consent, as a result of which UM/UIM claims are being litigated in court proceedings.” Bingham v. Poswistilo, 24 Pa. D. & C. 5th 17, 24 (Lacka.Co.2011).

Some post-Koken insurance policies have expressly deleted their UM/UIM arbitration provisions in their entirety, see, e.g., Moritz, supra, at *2, or require the consent of all parties as a condition precedent to UM/UIM arbitration. See Bingham, supra. The UIM provisions of Allstate’s policy state that if Allstate and the claimant do not agree “on that person’s right to receive damages” or “the amount of those damages,” then “upon the written request of either party the disagreement will be settled by arbitration as provided under the Pennsylvania Uniform Arbitration Acts 1927 and 1980.” (Docket entry no. 34 at p. 19). Consequently, if either Kujawski or Allstate had requested the submission of their UIM dispute to arbitration, Kujawski’s UIM claim would have been subjected to statutory arbitration. Apparently, neither Kujawski nor Allstate demanded arbitration of Kujawski’s UIM claim since that claim is at issue in this litigation.

Pennsylvania Rule of Civil Procedure 2229(b) governs the permissive joinder of defendants, and states that “[a] plaintiff may join as defendants persons against whom the plaintiff asserts any right to relief jointly, severally, separately or in the alternative...arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the liabilities of all such persons will arise in the action.” Pa.R.C.P. 2229(b). Since Rule 2229(b) uses the disjunctive word “or” in the phrase “right to relief jointly, severally, separately or in the alternative,” and UIM coverage is triggered once the plaintiff’s damages exceed the coverage limits of the tortfeasor’s liability insurance protection, a UIM carrier may be “separately” liable for the plaintiff’s damages that are in excess of the applicable liability insurance coverage. Bingham, 24 Pa. D. & C. 5th at 36. In addition, Pa.R.C.P. 213(a) permits trial courts to order a joint trial “of any matter in issue” and to “make orders that avoid unnecessary cost or delay.” Fravnert v. Delaware & Hudson Railway Company. Inc., 26 Pa. D. & C. 5th 176,183 (Lacka. Co. 2012).

Several Pennsylvania trial courts have allowed consolidation of tort and UIM claims under Rule 2229(b) on the grounds that both claims arise out of the same occurrence and present common questions of fact affecting the defendants’ liabilities. See Foster v. Naresh, 2013 WL 9904109, at *4 (Schuylkill Co. 2013) (citing Bingham, supra); Bingham, 24 Pa. D. & C. 5th at 29-31 (collecting cases). Other trial courts have favored severance of liability and UIM claims pursuant to Pa.R.C.P. 213(b) on the basis that any reference to underinsurance in a consolidated trial would violate Pa.R.E. 411. See Megert v. Stanbaugh, 2010 WL 231525, at *5 (Adams Co. 2010); Baptiste v. Strobel, 2009 WL 3793590, at *3 (Butler Co. 2009). Fogmeg contends that the joinder of Kujawski’s liability and UIM claims in a single trial will cause Fogmeg to “be unnecessarily prejudiced by the admissibility of evidence that [Kujawski] was insured at the time of the accident, which would not otherwise be permitted under Pa.R.E. 411.” (Docket entry no. 35 at p. 4).

Although Pennsylvania Rule of Evidence 411 generally provides that “[e]vidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully,” it further states that “the court may admit this evidence for another purpose....” Pa.R.E. 411. Since reference to insurance in the context of a UM/UIM benefits trial does not introduce evidence of liability or indemnity insurance in contravention of Rule 411, we reasoned in Bingham that “Pennsylvania trial courts may join and try tort and UIM claims in a single action without running afoul of Pa.R.E. 411,” and that “the trial court may consider evidence of insurance as being ‘offered for another purpose’ under Rule 411 and allow the UIM insurer to be identified, and the tort and UIM issues to be decided jointly, based upon carefully crafted instructions to the jury.” Bingham, 24 Pa. D. & C. 5th at 44. However, the defense objection to the joinder in Bingham was raised at the pleadings stage by way of preliminary objections, and we merely “conclude [d] that tort actions and UIM claims may be joined in a single proceeding, at least for pre-trial purposes,” and that “the judge to whom the consolidated matter is assigned for trial will ultimately determine whether to sever the tort and UIM claims for separate jury trials or to try them as consolidated claims via one of the options identified above.” Id. at 44-45. Two years later, the Superior Court of Pennsylvania resolved the application of Pa.R.E. 411 in a jury trial where liability and UIM claims are joined for a single trial, and held that “a course of action identifying [the UIM insurer] as a party would not necessarily run afoul of...Rule 411” in such a trial. Stepanovich v. McGrow, 78 A.3d 1147, 1150 (Pa. Super. 2013), app. denied, 89 A.3d 1286 (Pa. 2014).

Other jurisdictions are divided in their approaches to the joinder of tort and UIM claims and the associated issues of whether the UIM insurer should remain identified as a named party, and whether the jury should be furnished with any explanation concerning the UIM carrier’s involvement and participation. See Bingham. 24 Pa. D. & C. 5th at 32-34 (reviewing the decisions of 33 other states, and stating that 27 jurisdictions allow joinder of UM/UIM claims with civil actions against tortfeasors, while 6 states favor severance of UM/UIM claims from tort actions). Those states which favor severance, as advocated by Fogmeg, do not permit the UIM carrier to even be identified during the trial. See, e.g., Heflin v. Merrill, 154 So. 3d 857, 861 (Miss. 2014) (“We see no reason for the jury to be informed of Nationwide’s role as [plaintiffs] underinsured motorist insurer.”). Jurisdictions favoring consolidated trials have concluded that the concealment of the identity of the real party in interest, i.e., the UIM insurer, promotes “charades” and harms “the integrity of the jury system” in trials involving tort and UIM claims. See, e.g, Earle v. Cobb, 156 S.W.3d 257, 261 (Ky. 2005) (reasoning that if the identity of the UIM carrier is not disclosed, “the jury is left to speculate about the exact role of plaintiff’s carrier in the lawsuit, perpetuating the ‘charades in trials,”’ and that “[wjhen only the tortfeasor is identified, a fictitious presence appears at trial instead of the bona fide party.”); Lamz v. Geico General Insurance Company, 803 So.2d 593, 595 (Fla. 2001) (holding “that the jury should be made aware of the precise identity of an uninsured or underinsured insurance carrier if it is a party at trial,” and remarking that “[t]he policy behind such a requirement is that full disclosure of the identity of the parties protects the integrity of the jury system and prevents charades at trial.”). By virtue of the foregoing pronouncement in Stepanovitch, Pennsylvania has aligned itself with those states which permit the joinder of liability and UIM claims for a single trial pursuant to Pa.R.C.P. 213(a) and 2229(b), and allow the identification of the UIM insurer as the real party in interest. Accord, Bingham. 24 Pa. D. & C. 5th at 30 (stating “that joinder of tort and UIM claims also conserves limited judicial resources, avoids multiplicity of suits and unnecessary litigation delay and expense, and safeguards against inconsistent verdicts in separate proceedings.”).

Nevertheless, the existence of a UIM coverage dispute based upon the issue of Kujawski’s residency presents an obstacle to the complete joinder of all issues in a consolidated trial. In an appeal involving a prQ-Koken policy which mandated UIM arbitration, the Superior Court in Richner v. McCance, 13 A.3d 950 (Pa. Super. 2011) considered the joinder of a tort claim with a UIM coverage dispute involving the applicability of the “regularly used, non-owned vehicle” exclusion. Id. at 954 & n.l. The UIM insurer, Erie Insurance Exchange, asserted that the tort action and the declaratory judgment claim had been misjoined “because the two claims did not arise out of the same transactions or occurrences and did not involve common questions of law or fact.” Id. at 955. After the trial court overruled Erie’s preliminary objections asserting a misjoinder, Erie appealed and argued that the lower court had erred “in failing to dismiss Richner’s action against Erie because Richner misjoined his tort action against [defendant and his employer] with a declaratory judgment action against his own insurer. Id.

The Superior Court in Richner observed that Rule 2229(b) allows a plaintiff to join two or more defendants as named parties in the same proceeding “if (1) the liabilities of the defendants arise from a common factual background, and (2) a common question of law or fact affecting the liabilities of the defendants will arise in the action.” Id. at 959. In reversing the trial court, the Richner court concluded:

With respect to the first requirement, while in an attenuated sense, Richner’s tort action against McCance and [his employer] and the coverage issue with Erie both “arise” from the automobile accident between Richner and McCance, in fact Richner’s dispute with Erie arises from the formation of the insurance contract between Richner’s parents and Erie. More specifically, the dispute arises from interpretation of the language of the “regularly used, non-owned vehicle” exclusion clause in said contract. Richner’s tort claims against [defendants], including all questions of duty, breach of duty, causation, and damages, will be resolved through reference to what occurred during and after the automobile accident. The respective rights and obligations of Richner and Erie, in contrast, will derive entirely from the language of the UIM provisions of the Erie insurance contract.
With respect to the second requirement, no questions of law are common to both actions. The trial court found that a common nexus of fact exists between the two cases, namely Richner’s use of his employer’s vehicle on the day of the accident, [trial court citation omitted]. That Richner was operating his employer’s vehicle at the time of the accident with McCance, however, is far from dispositive evidence that Richner “regularly” used the vehicle. Richner’s use of his employer’s vehicle on a single occasion does not demonstrate frequency or regularity of his use of the car in question.
For these reasons, we conclude that the trial court erred in ruling that Richner could join his tort claim against [defendants] with a count for declaratory judgment raising the applicability of an exclusion in the Erie policy.

Id. at 960. However, in an explanatory footnote to its holding, which explanation is relevant to Fogmeg’s pending objection to joinder, the Superior Court cautioned that it was not deciding the question of joinder following Koken, and remarked:

In its analysis of Pa.R.C.P. 2229(b), the trial court erroneously applied the reasoning of various common pleas courts favoring “the tort claim and the UIM issue proceeding as one case.” (Citations omitted). The case law cited by the trial court deals with the joinder of third party liability claims with plaintiffs’ claims against UIM insurance carriers for benefits. In these cases, the trial courts concluded that Pa.R.C.P. 2229(b) was satisfied because the third party claims and the underinsured motorist claims arose of the same occurrence, i.e., the motor vehicle accident, and involved the same factual questions of liability and damages. The analysis of this joinder issue is inapposite to the one we decide in this case. We emphasize that we are not here deciding the propriety of the joinder of third party liability claims with post -Koken UIM benefit claims.

Id. at n.4.

Prior to Stepanovich, the Pennsylvania common pleas courts reached conflicting conclusions as to whether the UIM carrier should be identified as a defendant in a consolidated tort and UIM trial. Compare Pelc v. Burkell and State Farm Mutual Automobile Insurance Company, 30 Crawford Co. L. J. 64, 66 (Crawford Co. 2013) (“There is little, if any, prejudice to State Farm from having the jury know that the insurer is the party defendant.”) with Purta v. Blower and Erie Insurance Exchange, 2012 WL 6840333, at *3 (Lehigh Co. 2012) (“Plaintiffs, however, have proffered no argument remotely suggesting that evidence relating to the existence of [the UIM insurer] with potential financial exposure in the event of an excess verdict was in any manner relevant to the issues respecting negligence and causation concerning defendant Blower.”), aff’d, 60 A.3d 577 (Pa. Super. 2012), app. denied, 619 Pa. 716, 64 A.3d 632 (2013). The post -Richner ruling of the Superior Court in Stepanovich confirms that liability and UIM claims may be joined for a single trial, with the UIM insurer being identified as a named party, without violating the liability insurance proscription in Pa.R.E. 411. The issues of (a) Fogmeg’s negligence in causing the accident, (b) the injuries sustained by Kujawski in that accident, and (c) the damages recoverable by Kujawski for those injuries arise from the same factual background and involve common questions of law and fact relating to the potential liability of Fogmeg and Allstate for damages awardable to Kujawski. Therefore, subject to the jury instructions discussed in Section 11(B) below, the questions of Fogmeg’s causal negligence, Kujawski’s accident-related injuries, and the compensatory damages recoverable under Pennsylvania law will be tried in a single proceeding. As a consequence, Fogmeg’s request to remove Allstate “from the case caption” and to bar Kujawski from referring to Allstate as a party will be denied.

In light of the holding in Richner, the issue of Kujawski’s residency at the time of the accident, and the concomitant availability ofUIM coverage under her grandparents ’ policy with Allstate, do not share a common factual background with the negligence, causation and damages issues, nor do those coverage matters implicate common questions of law or fact. The ultimate applicability of Allstate’s UIM policy involves “a factually intensive inquiry” regarding Kujawski’s residency with “some measure of permanency or habitual repetition” a her grandparents’ home, Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958, 965 (Pa. Super. 2007), app. denied, 596 Pa. 747, 946 A.2d 688 (2008), which is a question of physical fact rather than Kujawski’s intention or belief. Miller v. Poole, 45 A.3d 1143, 1148 (Pa. Super. 2012). Those factual issues are separate and distinct from the questions of liability for the accident and damages causally related to that accident, and as such, are not conducive to joinder under Rule 2229(b).

Trial courts are vested with the discretion to sever or bifurcate under Pa.R.C.P. 213(b) since they are “in the best position to evaluate the necessity for taking measures the rule permits.” Ball v. Bavard Pump & Tank Co., Inc., 620 Pa. 289, 304, 67 A.3d 759, 767 (2013). Bifurcation “should be carefully and cautiously applied” if it “will manifestly promote convenience and/or actually avoid prejudice.” Schmidt v. Boardman Co., 958 A.2d 498, 520 (Pa. Super. 2008), aff’d, 608 Pa. 327, 11 A.3d 924 (2011) (quoting Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413, 419 (1987)). Before ordering bifurcation, the court should consider whether the separate issues to be addressed are so interwoven that evidence bearing on those questions will overlap during the segregated phases of the trial. See Ptak v. Masontown Men’s Softball League, 414 Pa. Super. 425, 429, 607 A.2d 297, 300 (1992), app. denied, 533 Pa. 661, 625 A.2d 1194 (1993); Batzel v. Northeast Pain & Rehabilitation, 2006 WL 3187826, at *2 (Lacka. Co. 2006). As noted above, the liability and damages issues are not intermingled with the question of Kujawski’s residency, and to the contrary, involve independent proof.

Thus, Fogmeg’s request to bifurcate the liability and damages issues from the question of Kujawski’s residency will be granted, albeit not upon the specific conditions sought by Fogmeg relative to the identification of and reference to Allstate. Under the bifurcated trial procedure, the jury will first address the merits of Kujawski’s liability and UIM claims and fashion an appropriate verdict, and in the event that the damages awarded exceed Fogmeg’s liability insurance policy limits of $100,000.00, a second phase of the trial will be conducted before the same jury to determine whether Kujawski was a resident of the Pehanichs’ home on June 4, 2010. If the jury awards less than $100,000.00 in damages, the issue of Kujawski’s residency and the applicability of Allstate’s UIM coverage will be rendered moot. Since Allstate will be identified as a named defendant, a determination must be made with respect to the instructions that will be provided to the jury during the first phase of the bifurcated trial.

(B) JURY INSTRUCTIONS

The parties do not agree as to what instructions should be furnished to the jury in the consolidated trial. Kujawski maintains that the charge articulated in Moritz should be provided in its entirety, (Docket entry no. 32 at p. 11), whereas Allstate objects to the third, fifth, sixth and seventh components of the Moritz charge. (Docket entry no. 32 at p. 2) “Besides paragraphs (3), (5), (6) and (7) of [Kujawski’s] suggested jury instructions from Moritz. Allstate has no objection to the remainder of [Kujawski’s] suggested jury instructions.” (Id. at p. 3). As previously noted, Fogmeg argues that neither the identity of Allstate as a party, nor the question of Kujawski’s UIM claim, should be disclosed in the jury instructions. (Docket entry no. 35 atp. 6).

In Moritz, the plaintiff filed a UIM suit solely against the UIM carrier, Horace Mann, after the plaintiff had already received payment of the tortfeasor’s liability insurance limits. Horace Mann argued that the jury should merely be informed “that this matter involves a motor vehicle accident involving two drivers, identifying the drivers, and also advising the jury that liability is not in dispute, but the extent of injuries being claimed by plaintiffs are in dispute and the only issue for the jury to decide is... what are the plaintiffs’ damages.” Moritz, supra, at *4. After noting that the plaintiff did “not seek to introduce evidence of Horace Mann’s UIM coverage limits or the amount of the tortfeasor’s liability insurance limits which she has collected,” we rejected the defense request and reasoned:

If the jury is not apprised of the reasons for Horace Mann being named as the only defendant in this case, some jurors may speculate as to why the admittedly negligent motorist, Cynthia Parlanti, is not named as a defendant or identified on the verdict slip. An insufficient explanation of the applicable UIM principles which are raised by the facts could cause other jurors to surmise that Moritz has already been fully compensated by the tortfeasor, or that any verdict in this matter may result in some form of a double recovery for Moritz. In order to avoid such potential juror confusion, the better approach is to properly inform the jurors of the relevant legal considerations in a manner comparable to the standard civil jury instructions that are utilized in Alabama, Connecticut, Delaware, Iowa and Maryland.
Consequently, the jury in this case will be instructed that: (1) plaintiffs have brought this action against their own insurance company under coverage known as underinsuredmotorist coverage, which serves to provide compensation to a plaintiff for damages that would have been recoverable if the underinsured motorist had maintained an insurance policy which adequately covered the plaintiffs’ damages from an accident; (2) to recover against the defendant, the plaintiffs must prove that the other driver was negligent, that the negligence caused harm to the plaintiffs, and that the other driver did not have adequate liability insurance; (3) the defendant has stipulated that the plaintiffs’ insurance policy provides underinsured motorist coverage and that the policy was in effect at the time of the accident, such that the jurors need not concern themselves with the specifics of the policy; (4) the defendant has also agreed that the other driver was negligent and caused the accident, such that the jury need only determine whether the plaintiffs suffered harm as a result of the accident and, if so, what amount of money damages will fairly and adequately compensate the plaintiffs; (5) the fact that the plaintiffs are suing the defendant for underinsured motorist benefits suggests that the other driver had some insurance which was recovered by the plaintiffs; (6) the plaintiffs will not receive compensation twice for the same damages since any jury award of damages in this case will be reduced by any amount that the plaintiffs have already received from the other driver and her insurer; and (7) the jury should determine an amount of money damages that will fairly and adequately compensate the plaintiffs for all the physical and financial injuries they have sustained as a result of the accident, without consideration of any amount that the plaintiffs may have received from the other driver or her insurer, since any such amount will be deducted by the court from the total sum that the jury may award.

Id

The foregoing instructions from Moritz are appropriate only in a case in which the plaintiff has sued the UIM insurer alone after having secured payment of the tortfeasor’s insurance policy limits. For that reason, and as Allstate has aptly argued, the fifth, sixth and seventh portions of the Moritz charge are clearly inapplicable. Moreover, inasmuch as Allstate does not agree that its UIM coverage applies due to the unresolved question of Kujawski’s residency at the time of the accident, the third facet of the Moritz instructions likewise does not apply in the case sub judice. Additionally, the first and second portions of the Moritz charge would reveal that Fogmeg has liability insurance, in contravention of Rule 411, see Flenke v. Huntington, 2015 WL 1208023, at *5 (Pa. Super. 2015), by informing the jury that UIM coverage “serves to provide compensation to a plaintiff for damages that would have been recoverable if the underinsured motorist had maintained an insurance policy which adequately covered the plaintiff’s damages,” and that the plaintiff must prove “that the other driver did not have adequate liability insurance.” See Moritz, supra.

Although the Superior Court in Stepanovich clarified that the inclusion and identification of the UIM insurer as a named party in a consolidated tort and UIM benefits trial “would not necessarily run afoul” of PaJRJB. 411, it expressly cautioned that “[t]he issue of the appropriate language for instructions to the jury is not before us.” Stepanovich, 73 A.3d at 1150 n.5. In the few instances where trial courts have published rulings addressing jury instructions and admissible evidence in UIM trials, the courts have reached polar opposite conclusions. In Pele, supra, the trial judge declined to furnish any “details regarding the various UIM policies” or “the third-party settlement amount,” and instead held that the jury would be advised that “[a]ll that is necessary for you to know is that [plaintiff] has a claim for damages as a result of this accident” and that “[y]our duty will be to determine whether his claim is valid and, if so, how much in money damages he is entitled to receive.” Pele, 30 Crawford Co. L. J. at 66, 71. However, in Noone v. Progressive Direct Insurance Company, 2013 WL 8367579 (M.D. Pa. 2013), the federal district court denied the UIM carrier’s motion “to preclude plaintiff from entering into evidence the amount of premiums that plaintiff paid on the [UIM] policy,” “the limits of the underinsured motorist coverage available under the policy,” “the amount of liability insurance coverage available to the tortfeasor and the amount of liability insurance coverage recovered by plaintiff from the tortfeasor.” Id. at * 1. The Noone court found that “it is important that the jury understand the limits of the tortfeasor’s liability insurance, and the amount that plaintiff received from that insurance,” and reasoned that “[i]t is not overly prejudicial to the defendant for the jury to know the amount of coverage that plaintiff purchased or the amount that she paid for the policy” since this “background information will assist the jury in completely understanding and evaluating the case.” Id. at *2. Contrary to Noone, the common pleas court in Phy v. Nikulin, 2014 WL 2681087 (Phila. Co. 2014) granted the UIM insurer’s motion in limine, and precluded the plaintiff “from introducing evidence of or referring to details pertaining to the [UIM] policy,” “the amount or payment of insurance premiums for the said insurance policy,” and “the limits of underinsured motorist coverage afforded to plaintiff under that policy.” Id. at * 1.

The Civil Instructions Subcommittee of the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions has not developed any recommended instructions for UIM jury trials after Koken, regardless of whether the liability and UIM claims are joined for a single trial. Those jurisdictions which permit consolidated trials of liability and UIM claims have formulated instructions which provide varying amounts of information to the jury. Some states have published jury instructions for UIM trials which are to be used only in cases where the UIM insurer alone is sued. See, e.g., Arkansas Model Jury Instructions -Civil § 2303, Comment (stating that “[t]he case contemplated by this instruction is against the underinsured motorist coverage carrier only,” and that “combination in one action of claims against both the tortfeasor and the underinsured motorist coverage carrier, while avoiding a multiplicity of lawsuits, might raise a question concerning the admissibility of evidence of the tortfeasor’s liability insurance” in violation of Ark. R. Evid. 403); Oklahoma Uniform Jury Instructions — Civil No. 2.4, Notes on Use (2d ed.) (“The plaintiff may name both the underinsured motorist carrier and the tortfeasor in the same action,” and “this instruction should not be given if the tortfeasor is named as a party.”)- Florida recommends that the trial judge inform the jury that the UIM insurer is the plaintiff’s “motor vehicle insurance company and provided [him/her] underinsured motorist coverage, which may be available to pay some or all of the damages that may be awarded.” Florida Standard Jury Instructions in Civil Cases § 201.2, “Introduction of Participants and Their Roles” (2014). In Alabama, jurors are advised that the plaintiff asserts that the defendant-driver “was an underinsured motorist” because [s]he was “covered by liability insurance, but [plaintiff] says the amount of insurance is not enough to make [him/ her] whole.” Alabama Pattern Jury Instructions — Civil § 20.53 (3d ed. 2012). Alabama jurors are further charged that “[w]hen deciding how much money to award, the amount of [defendant’s] liability insurance coverage and the amount of [plaintiffs] underinsured motorist insurance are not important.” Id.

The pattern jury instructions utilized in Alabama expressly reference the existence and amount of the tortfeasor’s liability insurance and could prejudice Fogmeg in violation of Pa.R.E. 411. However, Florida’s standard instruction, which simply identifies the UIM insurer as the plaintiff’s insurer that “provided [plaintiff] underinsured motorist coverage which may be available to pay some or all of the damages that may be awarded,” would not inject the subject of Fogmeg’s liability insurance coverage into the case. Furthermore, since Allstate and its counsel will participate in the trial by examining witnesses and presenting an opening statement and a closing argument, it is imperative that the jury understand Allstate’s status as a party adverse to Kujawski.

Consequently, the jury will be instructed that Kujawski must establish by a preponderance of the evidence that Fogmeg was negligent, that Fogmeg’s negligence caused harm to Kujawski, and that Kujawski suffered damages as a result of her injuries. See Moritz, supra, at *5. The jury will also be informed that Allstate’s policy provides underinsured motorist coverage, which may be available to pay some of the damages that may be awarded, see Florida Standard Jury Instructions in Civil Cases § 201.2, and that Allstate should not be treated “any differently than any other defendant in a civil action simply because Allstate is an insurance company.” Pele, supra, at 71. Finally, in light of the bifurcation of Kujawski’s residency issue, the jury will be advised that depending upon its verdict at the conclusion of the liability and damages portion of the trial, it may hear additional evidence and render a second verdict with respect to Kujawski’s residency at the time of the accident.

Accordingly, prior to the presentation of opening statements, the following jury instructions will be furnished to the jury:

Members of the jury, this case arises from an automobile accident that occurred on June 4, 2010, when the plaintiff, Jessica Kujawski, was a passenger in a vehicle that was involved in a collision with an automobile that was being operated by defendant, Joseph Fogmeg. Plaintiff has filed this action seeking to recover damages for injuries and losses that she claims were caused by the accident. Plaintiff has brought this lawsuit against the other driver, Joseph Fogmeg, and her relatives’ insurance company, Allstate Insurance Company, which issued an insurance policy that provides underinsured motorist coverage which may be available to pay some of the damages that may be awarded in this case. You should not treat the defendant, Allstate Insurance Company, any differently than any other defendant in this case simply because Allstate Insurance Company is an insurance company.
To recover damages in this case, the plaintiff must prove by a preponderance of the evidence that the defendant, Joseph Fogmeg, was negligent, that his negligence was a factual cause of harm to the plaintiff, and that the plaintiff suffered damages as a result of that harm. The defendants do not dispute that the other driver, Joseph Fogmeg, was negligent and caused the accident on June 4, 2010. However, the defendants deny that the accident was a factual cause of harm to the plaintiff and that she sustained any damages as a result of the accident.
Therefore, you will have to determine whether the plaintiff, Jessica Kujawski, suffered injuries as a result of the accident, and, if so, what amount of money damages will fairly and adequately compensate for her losses. Depending upon the determination that you make in that regard, you may hear some additional evidence and have to render a second verdict on another issue in the case. I will provide you with more specific instructions on these issues later in the trial, but for the time being, your only task is to determine whether the plaintiff suffered harm as a result of the accident, and, if so, what amount of money damages will fairly and adequately compensate her for that harm.

An appropriate order follows.

ORDER

And now, this 15th day of April, 2015, upon consideration of the parties’ pre-trial submissions (Docket entry nos. 32, 33, 35), and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

1. Plaintiff’s third party liability claim against defendant, Joseph Fogmeg, and underinsured motorist (UIM) claim against defendant, Allstate Insurance Company, are joined for a consolidated trial pursuant to Pa.R.C.P. 2229(b), with Allstate Insurance Company being identified as a real party in interest and the jury being provided with the instructions set forth in the foregoing memorandum; and

2. In accordance with Pa.R.C.P. 213(b), the issues of liability and damages will be bifurcated from the questions of plaintiff’s residency at the time of the accident and the applicability of her grandparents’ UIM policy with defendant, Allstate Insurance Company. If the jury renders a verdict in excess of Joseph Fogmeg’s liability insurance policy limits at the conclusion of the liability and damages phase of the trial, a second phase of the trial will be conducted before the same jury to determine whether plaintiff was a “resident relative” of Richard and Marion Pehanich on June 4,2010. In the event that the jury awards damages in an amount less than Joseph Fogmeg’s liability insurance policy limits, the issue of plaintiffs residency and the applicability of Allstate Insurance Company’s UIM policy will be rendered moot and a second phase of the trial on those issues will not be conducted.

      . Part 3 of Allstate’s policy entitled “Underinsured Motorists Insurance Coverage” states that Allstate “will pay damages to an insured person for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured auto.” (Docket entry no. 34 at p. 15). An “underinsured auto” is defined by the policy as “[a] motor vehicle which has bodily injury liability protection in effect at the time of the accident, but its limit for bodily injury liability is less than the damages the injured person is legally entitled to recover.” (Id. atp. 16).

      . Allstate’s policy obligates it to pay UIM benefits to an “insured person” who is defined, inter alia, as “[y]ou and any resident relative.” (Docket entry no. 34 at p. 15). The word “you” in Allstate’s policy means “the resident policyholder named on the declarations page and that policyholder’s resident spouse.” (Id. at p. 16). Kujawski’s grandparents, Richard and Marion Pehanich, are the resident policyholders named on the declarations page of the policy. If Kujawski was a “resident relative” of the Pehanichs at the time of her accident, she is eligible for UIM coverage under the policy.