author: HERRON, J.,

text:
    In re Nominating Petition of Weinberg

      E. Graham Robb, for petitioner.

      Richard Sprague, for respondent.
    March 25, 1999
   HERRON, J.,

INTRODUCTION

In objecting to the nomination petition of Marty Weinberg for mayor of Philadelphia, petitioner, Happy Fernandez, challenges whether he has satisfied the three-year residency requirement for mayor. In essence, she alleges that he abandoned his Philadelphia domicile — albeit perhaps for only a period of months — in favor of a home in Bala Cynwyd that was purchased in December 1997 and then inhabited by candidate Weinberg’s stepson and daughter-in-law in April 1998 until it was sold in October 1998. Following an evidentiary hearing, this court found the evidence presented by petitioner insufficient as a matter of law to satisfy the heavy burden of proof required to prove that a change in domicile occurred.

PROCEDURAL BACKGROUND

Petitioner, Happy Fernandez, filed a petition seeking to set aside the nomination petition of Marty Weinberg for mayor of the City of Philadelphia pursuant to 25 PS. §2937. Petitioner sets forth two grounds for setting aside Mr. Weinberg’s petition. First, she asserts that his accompanying affidavit is defective and false because he has not been a resident of Philadelphia for at least three years preceding his election, thereby failing to satisfy the eligibility requirements for mayor set forth in the Philadelphia Home Rule Charter. Second, Ms. Fernandez asserts, the affidavit is defective because Mr. Weinberg failed to sign it.

Section 977 of the Pennsylvania Election Code, which has been invoked by the petitioner, establishes that objections may be raised to nomination petitions and papers by petition “specifically setting forth the objections thereto.” 25 P.S. §2937. A court is then required to schedule a hearing to determine whether the papers are defective under the provisions of section 966 or for the reasons set forth in section 977:

“If the court shall find that said nomination petition or paper is defective under the provisions of section 976, or does not contain a sufficient number of genuine signatures of electors entitled to sign the same under the provisions of this Act, or was not filed by persons entitled to file the same, it shall be set aside.” 25 P.S. §2937. (emphasis added)

Section 976, which is thus incorporated as a basis for filing objections to nomination petitions, specifically refers to defective affidavits since it provides, inter alia, that:

“No nomination petition, nomination paper or nomination certificate shall be permitted to be filed if (a) it contains material errors or defects apparent on the face thereof or on the face of the appended or accompanying affidavits . . . 25 P.S. §2936. (emphasis added)

Similarly, the Election Code requires candidates to file affidavits along with their nominating petitions. 25 P.S. §2870. The code also outlines the information that the candidate must supply: “(a) his residence, with street and number, if any, and his post-office address; (b) his election district, giving city, borough, town, or township; (c) the name of the office for which he consents to be a candidate; (d) that he is eligible for such office; . . . .” 25 P.S. §2870. (emphasis added)

Consequently, under these and other statutory provisions, this court has jurisdiction to consider whether a nomination petition should be set aside because of a defective or false affidavit relating to a candidate’s legal residency. In re Nomination Petition of Pippy, 711 A.2d 1048, 1055 (Pa. Commw. 1998), aff’d, 551 Pa. 210, 709 A.2d 905 (1998).

RESIDENCY ANALYSIS

In analyzing the objections based on residency that have been raised against Mr. Weinberg’s petition, certain underlying principles necessarily apply. Nominating petitions, for instance, are presumed to be valid and objectors have the heavy burden of proving invalidity. In re Nomination Petition of Pippy, 711 A.2d at 1057. Courts have emphasized, moreover, that “the provisions of the Election Code must be liberally construed so as not to deprive an individual of his right to run for office or the voters of their right to elect the candidate of their choice.” In re Nomination Petition of Pippy, 711 A.2d at 1050.

The Philadelphia Home Rule Charter requires that the mayor “shall have been a resident of the city for at least three years preceding his election.” Philadelphia Home Rule Charter §3.3-300, 351 Pa. Code §3.3-300. The stated purpose for this provision is that “a minimum residence of three years is required so that the mayor will have some intimate knowledge and understanding of the city’s problems and needs.” Id.

Although there does not seem to be any appellate precedent focusing on the charter’s mayoralty residency requirements, precedent dealing with residency requirements in other elections is instructive as are cases dealing with residency requirements for city employees. The election cases clearly establish that the burden of proving insufficient residency is on the objector. The objector thus has the burden of proving that an affidavit is false in its statements about the candidate’s residency. This is a heavy burden since the objector must prove that the candidate is not a resident of the disputed address; the candidate does not have to prove that he is. This requires a showing by the preponderance of the evidence. In re Nomination Petition of Cooper, 163 Pa. Commw. 430, 436-37, 643 A.2d 111, 720-21 (1994). See also, In re Nomination Petition of Street, 102 Pa. Commw. 155, 163-64, 516 A.2d 791, 795 (1986) (the burden of proof on an objector raising a residency challenge “is indeed heavy,” because a “domicile, once established, is presumed to continue until it is shown that it has been changed”).

It is also well established that it is possible to have many residences “but only one ‘legal residence’ or ‘domicile.’ ” Rodgers v. Commonwealth, Unemployment Compensation Board of Review, 40 Pa. Commw. 552, 554, 397 A.2d 1286, 1287 (1979); McCarthy v. Philadelphia Civil Service Commission, 19 Pa. Commw. 383, 387, 339 A.2d 634, 636 (1975), aff’d, 424 U.S. 645 (1976). The terms permanent legal “resident,” “inhabitant” and “domicile” have been frequently analyzed in cases involving candidates for the Pennsylvania General Assembly where courts necessarily focus on whether candidates have satisfied the electoral residency requirements. See In re Nomination Petition of Prendergast, 543 Pa. 498, 505-506, 673 A.2d 324, 327-28 (1996); In re Nomination of Cooper, 163 Pa. Commw. 430, 643 A.2d 111 (1994). In these cases, the terms “inhabitant” or “resident” does not “ ‘mean one sojourning temporarily, or for some special purpose, but refers to one who has a permanent abode; the domicil [sic] of the senator, representative, governor or judge. . . .’ ” In re Nomination Petition of Prendergast, supra, 543 Pa. at 505-506, 673 A.2d at 327. See also, Lesker Case, 377 Pa. 411, 415, 105 A.2d 376, 379 (1954) (quoting Fry’s Election Case, 71 Pa. 302, 307). In defining residency or domicile for these electoral purposes, the Prendergast court emphasized the need to analyze the complex intermingling of intent and physical presence that are essential elements of domicile:

“A domicile is the place at which an individual has fixed his family home and principal establishment for an indefinite period of time. ... A domicile once acquired is presumed to continue until it is shown to have been changed and where a change is alleged, the burden of proving it rests upon whoever makes the allegation. ... A new domicile can be acquired only by physical presence at a new residence plus intent to make that new residence the principal home. . . . Intent is the actual state of facts, not what one declares them to be. An established domicile, however, can be retained without physical presence or residence until it is proven that a new domicile has been acquired.” In re Prendergast, supra, 543 Pa. at 506, 673 A.2d at 327-28 (quoting Dorrance’s Estate, 309 Pa. 151, 163 A. 303 (1932)).

Thus, while determination of a person’s domicile or permanent residence is a question of law, it inevitably depends on the facts of a particular case. Civil Service Commission of Pittsburgh v. Parks, 80 Pa. Commw. 134, 136, 471 A.2d 154, 156 (1984); Goetz v. Borough of Zelienople, 14 Pa. Commw. 639, 644, 324 A.2d 808, 811 (1974).

In attempting to satisfy her burden of proof, the objector presented the testimony of just one witness, the candidate Marty Weinberg, and various documents. The period at issue, the parties stipulated, was the three-year period following November 2,1996 preceding the 1999 mayoralty election. Throughout his testimony as on cross-examination and on direct, Mr. Weinberg consistently maintained that he had maintained his legal residence during this three-year period in Philadelphia: first in a home in Society Hill at 267 St. Joseph’s Way and then at a condominium he purchased on the Delaware River at Pier 5. Both of these homes were purchased by Mr. and/or Mrs. Weinberg. He testified that they purchased the townhouse on St. Joseph’s Way on April 22, 1996 and sold it on May 1, 1998 and that he resided there from April 1996 through March 1998. On April 30, 1998, Mrs. Weinberg purchased the condominium at Pier 5 from her son. Mr. Weinberg stated that he moved into this condominium in late March 1998, and continues to reside there until renovations are completed on a house he purchased on Delancey Street in the Rittenhouse Square neighborhood of Philadelphia. This testimony, thus, established a steady chain of property ownership and residence in Philadelphia by Mr. Weinberg throughout the three-year period preceding the 1999 mayoralty election.

The petitioner contended, however, that Mr. Weinberg had not been a resident of the city for the entire three years prior to the election. During the evidentiary hearing that was held on her objections, her counsel focused his questions on the Weinbergs’ purchase of a house at 34 Sandringham Road, in Bala Cynwyd or Penn Valley on December 4, 1997. Mr. Weinberg, in unrebutted testimony, stated that he purchased this property as an investment:

“I thought it was a great investment and I thought I would make a lot of money. I was surprised how cheap I could get it.

“Q: Were you buying this as an investment property, sir?
“A: Yes. . . .
“Q: Did you also buy it, sir, as a country house to visit on the weekends and spend perhaps the summer months at?
“A: What I have done, Mr. Robb, on many occasions is to where a property that I feel is a good investment, purchase it, fix it up and use it while it’s for sale. That’s what I intended in this particular case to do. And it did happen to be in what I described as country. And I intended to while it was for sale after I put it up, use it on weekends and hoped to make a very good profit.” N.T. at 33.

This kind of purchase was not unusual for the Weinbergs, he stated, because they had purchased houses to renovate for investments “perhaps 15 times in the last 20 years.” N.T. at 86.

After purchasing the Bala Cynwyd property, Mr. Weinberg testified that “sometime in December” of 1997 his wife spent “quite a bit of time” at the property overseeing work on the renovations. This lasted for “a few months period.” This pattern of spending a great deal of time supervising renovations — and even staying overnight — was not uncommon for Mrs. Weinberg: “That’s what she normally did when we bought a house.”

During this time, Mr. Weinberg testified:

“I was splitting my time between St. Joseph’s Way and Bala Cynwyd and, of course, we were also at the same time looking around because we wanted to buy our residence. We wanted our primary residence to go from St. Joseph’s Way at the time of settlement to a place in Rittenhouse Square. That’s where we were looking to have our primary residence.”

In March 1998, Mr. Weinberg testified, he and his wife moved into his stepson’s condominium on Pier 5. Mrs. Weinberg subsequently purchased this condominium from her son on April 30,1998. Meanwhile, her son and daughter-in-law moved out to the Bala Cynwyd property at Sandringham Road, where they remained from March 1998 until it was sold in October 1998. They paid for the utilities and had the phone number changed. N.T. at 88-89.

After this move to the condominium, Mr. Weinberg no longer spent any time at the Bala Cynwyd property except for perhaps one visit. Moreover, although he did not have a clear recollection of how much time Mrs. Weinberg spent at the suburban property, he believed “it was very limited.” N.T. at 45, 89.

This testimony thus establishes that beginning in April 1996, the Weinbergs purchased and resided within Philadelphia at St. Joseph’s Way. The burden was thus on the petitioner to establish that Mr. Weinberg changed his residence since “[a] domicile once acquired is presumed to continue until it is shown to have been changed and where a change is alleged, the burden of proving it rests upon whoever makes the allegation.” In re Prendergast, supra, 543 Pa. at 506, 673 A.2d at 327-28 (quoting Dorrance’s Estate, 309 Pa. 151, 163 A. 303 (1932)). Petitioner sought to meet this burden with various documents.

Petitioner’s counsel thus questioned Mr. Weinberg about a Jeep he purchased in Lansdale in February 1998 with title and registration in his own name indicating a Bala Cynwyd address. He explained that this was a gift for his wife, which was why the title and registration were subsequently switched to her name since “she was not there I believe to sign the papers.” N.T. at 47. He further explained that the reason he had given the Bala Cynwyd address for the Jeep was that his St. Joseph’s Way home was under agreement of sale at this time. N.T. at 48. This response is not inconsistent with his actual residence in Philadelphia at Pier 5 and must be considered within the context of the totality of the evidence presented at the hearing.

Petitioner’s counsel also questioned Mr. Weinberg about the “financing package” that he had with Jefferson Bank and the Sandringham address listed on these documents. Mr. Weinberg replied that “[tjhere were documerits that were prepared by Jefferson Bank for the property which I signed and there was a financial statement that I had to actually fill out completely which I did and was signed by me.” N.T. at 56. In contrast to these loan documents that Mr. Weinberg characterized as being prepared by Jefferson Bank dated December 4,1997 that give the borrowers’ address as Sandringham Road, Penn Valley, exhibits F-15 and F-16, Mr. Weinberg presented a personal financial statement that he personally filled out: this handwritten form lists “home address” as 267 St. Joseph’s Way.

These documents prepared by the bank, alone, do not rebut Mr. Weinberg’s testimony as to where he physically resided. The petitioner had the option to produce evidence — or testimony — as to this key element" in her burden of proof but elected not to do so. Actual physical residence is, of course, a crucial aspect of establishing legal residency or domicile. In Lesker Case, for instance, the Pennsylvania Supreme Court concluded that objections to a nomination petition were without merit when based on such evidence as a motor vehicle license, a liquor license and telephone directory address without the requisite proof of an actual physical abandonment of the legal domicile:

“The record shows that he [the candidate] never abandoned his 1814 Brownsville Road home. His furniture, personal belongings and clothes are still there; his housekeeper who cared for himself and his wife [are still] there; he votes from this residence; he receives his friends and acquaintances there.

“To accomplish a change of domicile there must be not only the animus to change but the factum as well. There must be an actual transfer of bodily presence from one place to the other. The animus and the factum do not need to be simultaneous, but until they coincide the change of domicile is not effected. In the law a domicile is as deep rooted as a tree and to transfer it from one location to another requires an operation as intensive as the digging up, loading, transportation, and replanting of an elm or maple.” Lesker Case, 377 Pa. 411, 418-19, 105 A.2d 376, 380 (1954). (emphasis added)

In testifying as to his actual physical residency, Mr. Weinberg consistently testified that during the period he owned the Bala Cynwyd property, his primary residence was in Philadelphia — whether at St. Joseph’s Way or later at Pier 5. As evidence of this actual physical residency, he testified that once he moved to 267 St. Joseph’s Way, he changed his voter registration to that address and then voted in Philadelphia in each election. When he moved from Society Hill to Pier 5, he once again changed his voter registration. N.T. at 78-79. He stated that after his purchase of the Bala Cynwyd property, the bulk of his clothing remained at the St. Joseph’s Way property although he kept some at Sandringham since “I would spend some nights there.” N.T. at 80.

As for entertaining, Mr. Weinberg stated that they did not entertain people at the Sandringham property, but they had entertained people “many times” at the St. Joseph’s Way property. N.T. at 80. Mr. Weinberg also presented informal telephone directories for the Court of Judicial Discipline with attached memoranda dated January 12, 1998 and April 1, 1998 listing his address as St. Joseph’s Way in Philadelphia. By stipulation, it was admitted that Mr. Weinberg had been chairman of the Democratic party in Philadelphia. He was a member of the Philadelphia Bar Association and not the Montgomery County Bar Association. Finally, in filing their state and federal income tax returns for the years 1996, 1997 and 1998, the Weinbergs listed their respective Philadelphia residences as their addresses. This testimony as to his actual physical residence weighs heavily in the calculation of Mr. Weinberg’s residence. In In re Prendergast, for instance, the Supreme Court suggested that where a person registers to vote and actually votes is a strong indicia of residency. In re Prendergast, supra, 543 Pa. at 506, 673 A.2d at 328.

In resting petitioner’s case after the testimony of Mr. Weinberg, petitioner argued that by virtue of Mrs. Weinberg’s presence at the Bala Cynwyd property, this court should find that Mr. Weinberg, as her husband, likewise established Bala Cynwyd as their primary residence under the precedent that a married couple may have only a single residence. 2 N.T. at 10. In support of this argument, petitioner referenced “a case on point” that her counsel had referred to this court, which presumably is McCarthy v. Philadelphia Civil Service Commission, 19 Pa. Commw. 383, 339 A.2d 634 (1975).

The facts of McCarthy, however, are clearly distinguishable. In McCarthy, a fire lieutenant was dismissed for failure to meet the Philadelphia residency requirements under the Philadelphia Code of Ordinances §20-101. He and his wife had owned property in both New Jersey and Philadelphia. After their Philadelphia home was vandalized, his wife and nine children moved to New Jersey. McCarthy moved in with his mother, and claimed her house as his residence. In testimony, however, he conceded that he typically slept two nights in his mother’s home, two nights at the fire station and three nights in New Jersey. The Commonwealth Court concluded that he was not a Philadelphia resident based on the following considerations: he no longer owned any property in Philadelphia; he spent on average as much time in New Jersey as at his mother’s house; he continued to maintain a marital relation with his wife and was the family’s sole support; his children attended school in New Jersey. McCarthy, supra, 19 Pa. Commw. at 389-90, 339 A.2d at 637.

The Weinbergs, in contrast, consistently maintained property in Philadelphia; they gave their Philadelphia address on their income tax forms for the relevant time period; Mr. Weinberg was registered to vote in Philadelphia and consistently did so. And most significantly, unlike the spouse in McCarthy, the evidence presented does not indicate — let alone establish — that Mrs. Weinberg took up permanent residence in Bala Cynwyd. Rather, Mr. Weinberg characterized her occupancy of the Bala Cynwyd house as part of a pattern of temporarily leaving the primary residence to renovate a property for investment purposes. N.T. at 40-46. As Mr. Weinberg testified, “[s]o as we have done in the past, she would during that short period of time when she was overseeing work, she would generally stay there at night. And that’s the way it was there.” N.T. at 45-46. Moreover, he testified that she returned to live at Pier 5 in March 1998, at which time her son and his wife took up residence in Bala Cynwyd.

These facts are patently distinguishable from the McCarthy case where there was no indication of any intent by the wife to return to Philadelphia to live with her husband. In the instant case, in contrast, Mrs. Weinberg returned to Philadelphia after approximately three months of supervising renovations at Bala Cynwyd. As the Supreme Court observed in Prendergast, “[a]n established domicile, however, can be retained without physical presence or residence until it be proven that a new domicile has been acquired.” In re Prendergast, supra, 543 Pa. at 506, 673 A.2d at 328. (citation omitted) (emphasis added) Similarly, the Election Code’s “rules for determining residence” of electors, which have been applied by the courts in determining the residency of candidates, emphasizes that temporary absences from the primary residence do not result in a change of domicile:

“A person shall not be considered to have lost his residence who leaves his home and goes into another state or another election district of this state for temporary purposes only, with the intention of returning.” 25 P.S. §2814(b).

The only evidence as to Mrs. Weinberg’s purpose in going to the Bala Cynwyd property was through the testimony of Mr. Weinberg. He testified as to its temporary nature, and her return to their Philadelphia home in March 1998 buttresses this testimony. For this reason, as well, petitioner failed to meet her burden of proof as to an essential element in establishing her objections to Mr. Weinberg’s nomination petition.

CONCLUSION

A determination of legal residency necessarily requires balancing the facts of a particular case. The credible testimony and evidence amply demonstrate that Mr. Weinberg’s legal residence was at all times in Philadelphia during the three-year period at issue — either at St. Joseph’s Way beginning April 1996 or at Pier 5 from March 1998 through the present. Among the many factors supporting this conclusion are the following continuous activities of Mr. Weinberg in Philadelphia: maintenance of personal bank accounts; membership in the Philadelphia Bar Association; registering to vote in Philadelphia; voting in Philadelphia; consistent ownership of a personal residence within the city; entertaining therein and not elsewhere; maintenance of furniture, clothing and personal items in the Philadelphia residence and, importantly, physically residing in those Philadelphia residences. Had many — not necessarily all — of these activities occurred at a residence outside of Philadelphia, a different result would be compelled. The mere registration of one vehicle at the Bala Cynwyd address or the reference in bank-prepared loan documents to that address fall far short of meeting the requirements for changing legal residence.

The temporal and brief partial absence of Mrs. Weinberg from the marital domicile for the express purpose of supervising the completion of an investment property in B ala Cy n wy d is insufficient as a matter of law to constitute a change of domicile either for her or Mr. Weinberg. Moreover, the 20-year history of Mrs. Weinberg supervising renovations of at least 15 investment properties purchased by the Weinbergs is consistent with the circumstances and events in this matter and corroborative of the stated intent of Mr. Weinberg to be domiciled in Philadelphia.

Accordingly, this court finds that petitioner has failed to prove by a preponderance of the evidence that Mr. Weinberg was not domiciled in Philadelphia and it is therefore ordered and decreed that the objections to Mr. Weinberg’s nominating petition are dismissed with prejudice.

      . At the outset of the hearing, Mr. Weinberg’s counsel moved to dismiss the petition for lack of specificity and this court, after argument, reserved ruling on that motion. N.T. (3/23/99) at 7-20 (“N.T.” or “2 N.T. ” to indicate the second, shorter transcript prepared).
      This court finds that the averments in the petition were sufficiently specific and adequate to set forth a prima facie challenge, although the evidence presented ultimately failed to meet the high burden of proof applicable in this case.

      . Petition objecting to the nomination petition of Marty Weinberg (objecting petition), ¶¶4-7. During the hearing on March 23, 1999, Mr. Weinberg made a motion asking leave to amend his candidate’s affidavit so that he could sign it. The objectors did not oppose this motion and it was granted. N.T. at 6.

      . This somewhat extended analysis of the jurisdictional basis for reviewing a nomination petition was prompted by amendments to the Election Code by Act 18 of 1998 that are extensively discussed by the Commonwealth Court in In re Nomination Petition of Pippy, supra, 711 A.2d at 1054-55. In addition to the sections cited above, the Commonwealth Court concluded that courts have the authority to review defective affidavits based on 25 P.S. §3502.1 which provides that any candidate for state or city office “who knowingly makes a false statement regarding his eligibility or qualifications for such office in his candidate’s affidavit shall, in litigation which results in the removal of the candidate from the ballot, be liable for court costs, including filing fees, attorney fees, investigation fees and similar costs, in an amount up to $10,000.”

      . The Philadelphia Code sets forth residence requirements for civil service employees of the city:
      “(1) No person shall be appointed as an employee in the civil service of the city unless he has been a bona fide resident of the city for at least one year prior to his appointment.

        “(2) Every employee in the civil service shall maintain his bona fide residence in the city.” Pa. Code §20-101.

      . As the Supreme Court observed in Lesker, supra, it is important not to confuse “intent with a declaration of intent. In the law of domicile, intent is the actual state of facts, not what one declares them to be.” Lesker, supra, 377 Pa. at 416, 105 A.2d at 379.

      . The “rules for determining residence” set forth in the Election Code, 25 P.S. §2814, have also been invoked in determining whether a candidate has satisfied the residency requirements for elective office. See e.g., In re Nomination of Prendergast, supra, 543 Pa. at 506, 673 A.2d at 328 (referencing 25 P.S. §2814(h)); In re Nomination of Cooper, 163 Pa. Commw. 430, 442 n.11, 643 A.2d 717, 723 n.ll (1994) (“While technically section 704 of the code [25 P.S. §2814] is used to determine the residence of a ‘person desiring to register [to] vote,’ there is no reason not to apply it to determine residency election qualifications.”); In re Nomination Petition of Carabello, 102 Pa. Commw. 129, 516 A.2d 784 (1984) (referencing 25 P.S. §2814(d)).

      . N.T. at 24.

      . N.T. at 69-74. Mr. Weinberg testified that May 1, 1998 was the settlement date for the St. Joseph’s Way property. N.T. at 74.

      . N.T. at 73-74, 87.

      . N.T. at 26, 75-76.

      . N.T. at 18 (petitioner’s counsel explaining the basis for her petition in response to motion to quash for lack of specific objection).

      . Mr. Weinberg noted that the property was either in Penn Valley or B ala Cynwyd depending on the post office, but his counsel stipulated that it was outside of Philadelphia. N.T. at 38.

      . See e.g., N.T. at 32, 85-86.

      . N.T. at 41.

      . N.T. at 45. See also, N.T. at 45-46 (“So as we have done in the past, she would during that short period of time when she was overseeing work, she would generally stay there at night. And that’s the way it was there.”).

      . N.T. at 42. Mr. Weinberg further testified that around October 1997, his St. Joseph’s Way home was under agreement of sale but all parties to this transaction agreed to delay settlement until April 1998, N.T. at 39-40, 48. He nonetheless stated that during the period of January and February 1998, he split his time between the Society Hill and Bala Cynwyd properties. N.T. at 46.

      . In explaining this move to Pier 5, Mr. Weinberg stated: “[W]e decided to do [move] because we could not find a property that we wanted and therefore we decided it would be a good opportunity to move our primary residence from St. Joseph’s Way to the river because we had never had that experience. We decided to purchase the property from him.” N.T. at 44.

      . N.T. 47. Petitioner presented documents relevant to this questioning. See exhibits F-4 and F-5.

      . See N.T. at 55-64. Mr. Weinberg was questioned initially about a settlement statement, exhibit F-16 and then counsel entered into a discussion of possible stipulations as to this document and exhibit F-15. Id. at 59-64. Petitioner’s counsel when asked if a stipulation was acceptable stated: “I think the only thing I would like to have as long as Mr. Weinberg and counsel are in agreement, is that when these documents were signed by Mr. and Mrs. Weinberg I presume they did not at any time object to Jefferson Bank as listing the borrowers’ address and I note that it’s the borrowers’ address, not the address of the property, that’s the subject of the loan in terms of how the documents were prepared.” Id. at 63-64.

      . See 2 N.T. at 4-5, where counsel for Mr. Weinberg included this personal financial statement dated “November 10, 1997” among the exhibits stipulated by agreement. The exact genesis of exhibit F-16, the “settlement statement,” is unclear from its face. Without correction by plaintiff’s counsel, however, Mr. Weinberg characterized it as being prepared by the bank. See N.T. at 58-59. The petitioner also introduced into evidence by stipulation two Jefferson Bank mortgage documents as well as a deed for the Sandringham property. See exhibits F-l, F-2 and F-3; 2 N.T. at 3.

      . See N.T. at 91-92 and exhibits W-4 and W-5. These directories apparently were presented to rebut an internal Obermayer firm directory, exhibit F-7. Mr. Weinberg denied any knowledge of how these addresses were compiled. He stated that this was something his secretary would handle and “I did not tell her to change that address. She did that on her own.” Id. at 52. This was the only testimony on the generation of this firm telephone list, and thus stands unrebutted by petitioner. Moreover, this testimony was elicited by petitioner’s counsel as on cross-examination and she is thus bound by it unless contradicted. Gorfti v. Montgomery, 384 Pa. Super. 256, 260-61, 558 A.2d 109, 111 (1989), appeal denied, 524 Pa. 608, 569 A.2d 1367 (1989) (“In Pennsylvania, a party calling a witness as of cross [examination] is bound by the testimony thus evoked unless it is contradicted by other evidence, not limited to direct testimony, or is inherently incredible.”).

      . N.T. at 82.

      . See N.T. at 95-96 (stipulation by counsel).

      . See generally, 2 N.T. at 9-10. The McCarthy case was among several excellent cases that counsel forwarded to this court in advance of the hearing. Another case with facts similar to those of McCarthy is In re Nomination Petition of Carabello, 102 Pa. Commw. 129, 516 A.2d 784 (1984). In Carabello, the Commonwealth Court concluded that the candidate for the Ward Executive Committee for the Democratic party in Philadelphia did not meet the residency qualifications where he claimed his mother’s home as his residence rather than the home of his wife and child. In rejecting the candidate’s argument that he was the “padrome” of the family, the court invoked the general rule that the place where the family of a man or woman lives shall be considered his residence. 25 P.S. §2814(d). The facts of the Weinberg case differ, however, since Mrs. Weinberg’s tenure in Bala Cynwyd was temporary and it was Mr. Weinberg who remained in the presumptive legal residence.

      . In addition to McCarthy, the Election Code’s “rules for determining residence” for electors provides that “[t]he place where the family of a married man or woman resides shall be considered and held to be his or her place of residence, except where the husband and wife have actually separated and live apart____” 25 P.S. §2814(d). This rule, however, likewise requires a finding of “residence” as to the spouse who leaves one residence for another. The rules further provide: “That place shall be considered the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning.” 25 P.S. §2814(b). (emphasis added) Mrs. Weinberg’s return to Philadelphia in March 1998 is practical, physical evidence of her intention as to which location was her legal residence. Petitioner, moreover, failed to present evidence that would rebut such a conclusion.

      . See note 6, supra.


source: Caselaw Access Project

author: VANSTON, P.J.,

license: Public Domain

text:
    Harvey v. Durling

      C.P. of Wyoming County,
    no. 95-685.

      Gerald C. Grimaud, for plaintiff.

      Cynthia R. Vullo, for defendant Child Development Council.
    June 10, 1998
   VANSTON, P.J.,

This matter is before the court for disposition of the defendant Child Development Council’s motion for summary judgment.

The plaintiff has filed a complaint in this matter against several defendants, alleging that she was the victim of improper sexual contact by John Durling, who, at the time, was an employee of the defendant church. Durling was the custodian of the Nativity B .V.M. Church, Tunkhannock, Pennsylvania, which is part of the Diocese of Scranton.

Ms. Harvey, at all relevant times, was an employee of CDC, which leases space from the church and in which CDC operates a child day care center.

There is no dispute that Durling had improper sexual contact with Ms. Harvey in 1993 and 1994. Durling was the subject of a criminal prosecution involving these incidents, as well as several similar incidents with other women. Ultimately, Durling entered pleas of guilty to charges of indecent assault (18 Pa.C.S. §3126).

Nor is there any dispute that Harvey never told her employer or any supervisor about the conduct of Mr. Durling at any time while she was employed by CDC. Indeed, CDC was not made aware of these incidents for more than one year after Ms. Harvey left CDC’s employment.

Harvey’s amended complaint avers three counts asserting liability on the part of CDC. These are Counts X, XI, and XIX. Each count must be separately addressed. Summary judgment should be granted at this stage of the proceedings only if the plaintiff has failed to produce evidence of facts essential to the cause of action which would require such issues to be submitted to a jury. See Pa.R.C.P. 1035.2.

Count X is labeled “direct liability” and sounds in negligence. The gravamen of the count is that CDC failed to provide a safe work environment for Ms. Harvey.

The central issue, therefore, is — what duty of care is owed by an employer to an employee with respect to workplace misconduct of a non-employee?

The plaintiff has spent a great deal of effort attempting to establish that CDC knew or “should have known” of John Durling’s “propensities against women” or “reputation for offensive conduct.” Yet, it is undisputed that neither Barbara Harvey nor the two other women who were victims of his assaultive behavior ever told CDC, or CDC supervisors, about his conduct. In fact, the plaintiff has appended to her brief in opposition to the motion for summary judgment numerous depositions and affidavits of proposed witnesses, none of whom can establish any knowledge on the part of any CDC supervisor of any conduct by Durling which might reasonably be considered dangerous to an employee. While it may be that it was “common knowledge” that Durling sometimes made crude or offensive statements to female CDC employees, this cannot be interpolated to mean that it was foreseeable that Durling would sexually assault female employees.

Even assuming that CDC had notice of Durling’s behavior, what was its duty of care to its employee Harvey? Durling was not an employee of CDC, and his behavior was beyond their control. As church custodian, he had a right to be in the premises leased by the church to CDC. Obviously, CDC could have lodged a complaint with the church, but beyond this there is nothing CDC could have done to control Durling’s conduct.

Plaintiff has offered this court no appellate authority defining what CDC’s duty of care under the circumstances here present. She simply makes the bald assertion that CDC’s negligence consisted of “not addressing the John Durling problem (which) was a substantial factor in bringing about the harm to” the plaintiff.

Consequently, this court is constrained to conclude that there exists no evidence from which a reasonable jury could conclude that the harm suffered by Barbara Harvey was foreseeable by CDC, or that CDC had a duty of care to prevent the harm which did occur.

Count XI of the amended complaint is labeled “breach of contract,” asserting that the oral employment agreement between CDC and Harvey included “an implied term that CDC would provide a safe work environment, free from foreseeable risks, including risks of sexual harassment, sexual misconduct and abuse, and free from a hostile and offensive work environment.”

Although plaintiff has not presented any evidence as to the terms of an employment agreement, it is not necessary for this court to address this issue. Further, the defendant CDC does not contest that it is obligated to provide its employees with a reasonably safe place in which to work. See Mike v. Borough of Aliquippa, 279 Pa. Super. 382, 421 A.2d 251 (1980). Thus, the issue is, again — was the harm caused by the intentional conduct of a non-employee reasonably foreseeable by CDC? And, as set forth above, the answer, again, is, “No.”

Lastly, Count XIX of the amended complaint is labeled “respondeat superior” and asserts vicarious liability on the part of CDC. In essence, this count contends that since Durling had daily contact with CDC employees, and the children in their care, he was, in actuality, employed by CDC. It is abundantly clear, however, that Durling was not CDC’s employee: They did not pay him and did not direct his daily activities.

Further, it is equally clear that Durling’s assaultive behavior upon others was for personal reasons and not within the scope of any purported employment by CDC. Willful misconduct on the part of an employee, although done in the course of employment, if not done within the scope of employment, can bring about no liability on the part of the employer. See Costa v. Roxborough Memorial Hospital, 708 A.2d 490 (Pa. Super. 1998).

Consequently, even if Durling were deemed to be an employee of CDC, his conduct could not impose vicarious liability upon CDC.

Accordingly, the motion for summary judgment must be granted.

ORDER

And now, June 10, 1998, for the reasons set forth in the opinion of the court of even date, it is ordered that the motion for summary judgment filed by the defendant Child Development Council is granted as to Counts X, XI, and XIX of plaintiff’s amended complaint, together with the prayer for relief for punitive damages, and the prothonotary of this court is directed to enter judgment in accord herewith.

      . Count Xn was dismissed following preliminary objections.


author: QUIGLEY, P.J.,

text:
    Clouser’s Autobody Inc. v. Jewell Building Systems Inc.
    C.P. of Perry County,
    no. 96-162.

      David Fitzsimons and Kathleen Dayle Yaninek, for plaintiffs.

      John C. McNamara, for defendant Jewell.

      Joseph F. VanHom, for defendant Cromleigh.

      January 19, 1998
   QUIGLEY, P.J.,

— In 1988, Clouser, plaintiffs, contracted with Cromleigh Brothers, defendant contractor, to construct two buildings. A pre-fabricated steel building (known as a “building in a box”) was supplied to plaintiffs by Jewell, defendant manufacturer, on June 5, 1989. Construction began in August-September of 1989, and was completed in March 1990 in accordance with the agreement between the plaintiffs and defendant Cromleigh. On February 13, 1994, the larger of the two buildings collapsed due to an overbearing snow load.

On October 14, 1996, plaintiffs filed their complaint seeking to recover economic losses from damage to the building and contents, cleanup costs, loss of profits, and various other casualty. Plaintiffs proceed their action under a contract theory of breach of warranty, tort theories of negligence and strict liability, and fraud. In May 1997, Jewell filed a motion for summary judgment which is presently before this court for disposition.

Defendant Jewell moves for summary judgment on all counts for the foregoing reasons: (1) plaintiffs’ recovery for their damages pleaded in tort is barred as a matter of law because these losses are purely economic and/or consequential in nature and may not be recovered in negligence or strict liability; (2) plaintiffs’ recovery for their economic damages under a breach of warranty theory is limited by the express terms of Jewell’s exclusive “one year building warranty” which was issued to plaintiffs on June 5, 1989. In addition, the warranty expired by its terms on June 5, 1990, which was well before the date of plaintiffs’ claimed loss; (3) plaintiffs’ complaint fails to state a cause of action in fraud.

ISSUE NO. 1

In regards to the case at bar, the economic loss doctrine provides that “negligence and strict liability theories do not apply in an action between commercial enterprises involving a product that malfunctions where the only resulting damage is to the product itself.” REM Coal Co. Inc. v. Clark Equipment Co., 386 Pa. Super. 401, 412-13, 563 A.2d 128, 133-34 (1989). In REM Coal, the Superior Court concluded that REM Coal failed to state a cause of action in tort because they did not allege damages exclusive of the loss of the product itself but merely sought to recover the benefit of the bargain. Id. at 413,563 A.2d at 134. To adequately determine whether Jewell’s motion for summary judgment is meritorious in regards to the first issue, we first considered two vital subissues: (1) how the doctrine applies when the building damaged “other property”; (2) whether or not the building at issue is a “product,” therefore applicable to the economic loss doctrine.

Plaintiffs argue that the economic loss doctrine does not apply in tort because the building and/or its parts and components damaged “other property.” Although the Pennsylvania Supreme Court has not specifically addressed this area of the law, the Superior Court has found in a multitude of cases that a plaintiff can proceed in tort against a manufacturer if the product causes personal injury or damage to “other property.” New York State Electric & Gas Corporation v. Westinghouse, 387 Pa. Super. 537, 550, 564 A.2d 919, 925 (1989). That is, the general rule in Pennsylvania law is that economic losses may not be recovered in tort absent physical injury or property damage. Spivack v. Berks Ridge Corp. Inc., 402 Pa. Super. 73, 586 A.2d 402 (1990); General Public Utilities v. Glass Kitchens of Lancaster Inc., 374 Pa. Super. 203, 542 A.2d 567 (1988). This court understands all of the above cases to mean that: “if tort causes only pecuniary loss, such as the loss of the financial benefits of a contract, the loss of prospective trade, or financial loss by being put to additional expense, there can be no recovery unless it is accompanied by physical harm to the person or the property of the plaintiff. Since this case involves property damage... they may bring an action to recover all of their losses.” Corporate Plaza Partners v. F&M Associates, no. 95-C-435 (Lehigh County, August 22, 1995).

Returning to the instant complaint, plaintiffs claim the following damage: loss of building, cost to repair vehicles inside building, loss of contents, cleanup costs, rent and loss of profits. From this, it appears that the damage allegations remove this matter from the purview of the economic loss doctrine. Therefore, this court believes the economic loss doctrine is inapplicable and does not bar recovery in tort in this case as there was damage exclusive of the building itself.

Secondly, whether or not Jewell’s building in a box is a “product” need not be considered because the economic loss doctrine is inapplicable to the case at bar.

ISSUE NO. 2

The second issue in this particular case is whether Jewell’s motion for summary judgment should be denied in regards to the contract theory of breach of warranty.

This court believes there is a genuine issue of material fact as to whether Cromleigh was an “agent” and/or representative of Jewell, and whether plaintiffs received any express written warranty or document on the buildings erected by Cromleigh Brothers.

For the foregoing reasons, this court does not need to conclusively decide whether the contract was for a sale of goods or for engineering/design services. Nor do we need to decide whether the warranty expired by its terms before the loss claimed by the plaintiffs. Therefore, this court denies Jewell’s motion for summary judgment in regards to the warranty issue.

ISSUE NO. 3

The elements of intentional misrepresentation or fraud are: “(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on their misrepresentation^]; and (6) the resulting injury was proximately caused by the reliance.” Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.2d 882, 889 (1994), citing Prosser and Keaton on the Law of Torts, section 105 (5th ed. 1984) and Restatement (Second) of Torts, section 525 (1977). “Whether [or not] an agency relationship exists is a question of fact for the jury.” Bolus v. United Penn Bank, 363 Pa. Super. 247, 259, 525 A.2d 1215, 1221 (1987). In this case, the allegations of fraud rest substantially on whether Cromleigh was an agent of Jewell. As earlier noted, this court believes this is an issue for a trier of fact, therefore improper for summary judgment.

For all of the foregoing reasons, this court denies summary judgment on all counts.

ORDER

And now, January 19, 1998, in accordance with the within memorandum, all summary judgment motions are denied.


author: LEWIS, J.,

text:
    Smith v. Allstate Insurance Co.

      C.P. of Dauphin County,
    no. 2218 S 1998.

      James G. Nealon III, for

      Timothy A. Baker, for plaintiff.

      Delores Noel, for defendant.
    BEFORE: TURGEON, KLEINFELTER AND LEWIS, JJ.

    March 2, 1999
   LEWIS, J.,

— This case originates from a motor vehicle accident on August 19, 1993 involving an automobile driven by Ingrid Smith, the above-captioned plaintiff. The car was owned by Winters-Boland Inc., employer of plaintiff’s husband, who provided the vehicle for purposes relating to his employment. At the time of the accident, plaintiff’s husband maintained his personal automobile insurance policy with defendant Allstate. Empire Fire and Marine Insurance Company was the insurance provider for Winters-Boland Inc. As a result of the accident, the automobile was a total loss. Empire paid Winters-Boland for the loss and sought reimbursement from plaintiff and defendant Allstate. Empire was successful in obtaining a monetary settlement from plaintiff as well as an assignment permitting Empire to pursue any and all equity claims plaintiff Smith may have had against Allstate. Pursuant to the assignment, however, plaintiff Smith retained her legal right to pursue a bad faith claim against Allstate. Because Empire’s investigation allegedly determined that plaintiff did not have permission to operate the vehicle at the time of the accident, defendant Allstate denied coverage. Plaintiff currently seeks relief from Allstate pursuant to the assignment allowing her to assert a bad faith claim.

A writ of summons was filed on May 22,1998 naming Empire as the plaintiff in the present litigation. However, on July 13, 1998, a complaint was filed captioning Ingrid Smith as the plaintiff. Nevertheless, the body of the complaint proceeds to name Empire as plaintiff and assignee of the claims of Ingrid Smith. Subsequently, the answer was filed on August 25, 1998. On December 8, 1998, defendant filed a motion for summary judgment and a brief in support of that motion. Plaintiff’s brief in response was filed on December 31, 1998. Defendant contends that this action is barred by the anti-assignment clause in its policy. In addition, defendant claims this action is barred by the applicable statute of limitations.

DISCUSSION

The standard of review for summary judgment is that if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment shall be granted. Mackay v. Sauerland, 454 Pa. Super. 666, 686 A.2d 840 (1996).

Defendant Allstate argues that this action should be dismissed due to policy provisions that specifically prohibit plaintiff’s assignment to Empire without Allstate’s consent. Fran & John’s Doylestown Auto Center Inc. v. Allstate Insurance Company, 432 Pa. Super. 449, 638 A.2d 1023 (1994). In that case, an automobile repair shop sued Allstate for fraud. As in the present case, the insured had signed an assignment of its claims against Allstate to the repair shop. The policy provided that “[tjhis policy can’t be transferred to another person without our . . . consent.” The court rejected the argument of the repair shop “that a distinction exists between the assignment of the contractual right to receive payment for repair of damage to a covered automobile and the transfer of the policy itself.” Id. at 452, 638 A.2d at 1024.

The policy in the present case provides:

“This policy can’t be transferred to another person without our written consent. However, if you die, this policy will provide coverage until the end of the policy period for your legal representative while acting as such and persons covered on the date of your death.”

It is undisputed that neither Empire nor the plaintiff obtained the consent of defendant Allstate to enter into the settlement or to have plaintiff Smith execute the assignment. Therefore, defendant argues summary judgment should be granted.

On the other hand, plaintiff Smith contends that a plain reading of the operative language contained within the policy’s non-transfer provision indicates there is no preclusion for the transfer of an equitable right to recover under the policy. She argues that since her equitable interests were assigned to Empire, she should still be permitted recovery in the exercise of her legal rights. Therefore, since there exists genuine issues of material facts corresponding to her legal interest in pursuing the bad faith cause of action, plaintiff maintains that summary judgment should be denied.

This court finds the case of Fran & John’s controlling. Because neither Empire nor plaintiff obtained defendant Allstate’s consent to enter into a settlement or to execute an assignment, such a claim is barred by the anti-assignment clause contained in the Allstate policy.

In Fran & John’s, the Superior Court explained:

“Appellant’s reasoning that the assignments in question transfer less than the insureds’ entire contractual interest in or right under the policies stands the transfer provision of the policies on its head. We find the language of this provision to be susceptible of no possible meaning other than to prohibit any transfer without appellee’s consent. We are powerless to place upon the language of the policies in question any construction which conflicts with its plain meaning. In short, we are unpersuaded by appellant’s attempt at what amounts to semantical gamesmanship.” Fran & John’s, 432 Pa. Super, at 453, 638 A.2d at 1025. (footnote omitted) (citation omitted) (emphasis in original)

Although the anti-assignment clause is silent as to which rights (legal and/or equitable) are prohibited from being assigned, in accordance with Fran & John’s, this court finds that the plain language of the clause restricts any transfer without Allstate’s consent. Therefore, summary judgment is granted.

Defendant also maintains in the alternative that the bad faith claim brought by plaintiff Smith/Empire is time-barred pursuant to 42 Pa.C.S. §5524(7) which makes the case subject to a two-year statute of limitations for torts. Defendant cites the case of Nelson v. State Farm Mutual Insurance, 988 F. Supp. 527 (E.D. Pa. 1997). The court in that case focused on the issue by attempting to determine what kind of action falls under the bad faith statute, 42 Pa.C.S. §8371. The court discussed the history of bad faith as a cause of action and concluded that the claim was governed by a two-year statute of limitations as such a claim is more akin to a separate, independent tort. Nelson, 988 F. Supp. at 533.

Plaintiff contends that defendant is not entitled to judgment as a matter of law where the bad faith statute, pursuant to 42 Pa.C.S. §8371, does not contain any specific statute of limitations period. See Doylestown Electric Supply Co. v. Maryland Casualty Insurance Co., 842 F. Supp. 1018 (E.D. Pa. 1996). Moreover, plaintiff claims that a bad faith claim is a separate and distinct cause of action, and is not contingent upon the statute of limitations for either contract or tort. Therefore, plaintiff maintains that the six-year catch-all limitations should apply to this case. 42 Pa.C.S. §5527. For example, in Woody v. State Farm & Casualty Company, 965 F. Supp. 691 (E.D. Pa. 1997), the court concluded that bad faith, as interpreted under Pennsylvania law, encompasses actions by an insured that sound in both tort and contract. While recognizing that section 8371 does not have specific statute of limitations since the claim could be either a tort or a contract, the court chose to apply the six-year catchall statute of limitations. Woody, 965 F. Supp. at 695.

In addition, in the recent case of Hospital Shared Services v. CIGNA Insurance Co., GD 95-2956 (Allegheny County, November 16, 1998), the Honorable Stanton Wettick of the Allegheny County Court of Common Pleas disagreed with the Nelson analysis and ruled that since some of the actions prohibited under the Unfair Practices Act sound in tort and others are departures from a standard of care that tort law has traditionally recognized, the six-year catchall statute of limitations should apply.

The law in this area remains unsettled. Federal and common pleas courts have been split as to when the statute of limitations expires for bad faith lawsuits in this Commonwealth. Therefore, this court will reserve judgment on this issue until an appellate court provides guidance in this matter. Nevertheless, this court need not rule on this question inasmuch as summary judgment was found to be appropriate due to the prohibition of assignment.

Accordingly, we enter the following:

ORDER

And now March 2, 1999, it is hereby ordered that consistent with the attached opinion, defendant Allstate Insurance Company’s motion for summary judgment is hereby granted.


author: CHESLOCK, J.,

text:
    Miller v. International Sigma Pi Fraternity

      C.P. of Monroe County,
    no. 1837 Civil 1995.

      Salvatore Vito, for plaintiff.

      Paul G. Lees, for defendant International Sigma Pi.

      William A. Slotter, for defendant East Stroudsburg University.
    January 25, 1999
   CHESLOCK, J.,

— Plaintiff commenced this action on January 2, 1996 by filing a complaint against defendants. Plaintiff contends that defendants are responsible for the injuries sustained by plaintiff at a fraternity party on the campus of East Stroudsburg University. On January 26,1996, defendant East Stroudsburg University filed preliminary objections to plaintiff’s complaint and praeciped the case for argument. Defendant International Sigma Pi Fraternity filed preliminary objections to plaintiff’s complaint on January 29, 1996. The case was delayed for nearly two years. On February 9, 1996, this court granted plaintiff’s petition for a stay of proceedings until such time plaintiff leaves the military or until such time plaintiff is in closer proximity to Monroe County. Thereafter, defendant fraternity reinstated their preliminary objections on November 12, 1998 and praeciped the case for argument. Defendant university reinstated their preliminary objections on November 16, 1998 and praeciped the case for argument. Arguments were heard on January 4, 1998. We are now ready to dispose of this matter.

A demurrer is a preliminary objection asserting that the pleadings fail to set forth a cause of action upon which relief can be granted. Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83 (1991). When considering a demurrer, the court must accept as true all well-pleaded facts set forth in the complaint, as well as all reasonably deducible inferences. Lazor v. Milne, 346 Pa. Super. 177, 499 A.2d 369 (1985). A demurrer will only be granted when the complaint has clearly failed to state a claim upon which relief can be granted. Rutherfoord v. Presbyterian-University Hospital, 417 Pa. Super. 316, 612 A.2d 500 (1992). With these standards in mind, we shall now consider defendants’ preliminary objections in the nature of a demurrer.

Defendant fraternity argues that the allegations in the complaint are insufficient to establish a legal duty on their part. Therefore, defendant fraternity contends that they should be dismissed from the instant action. Defendant university contends that the instant action should be dismissed.

In Count I of the complaint, plaintiff alleges defendant fraternity is liable as an accomplice under 18 Pa.C.S. §306 for aiding and encouraging a violation of the underage drinking statute. Although misidentified in the caption, plaintiff alleges an identical cause of action against defendant university in Count VI of the complaint.

The court in Jefferis v. Commonwealth, 371 Pa. Super. 12, 537 A.2d 355 (1988) had to determine the civil, as opposed to the criminal, liability and culpability of a person acting as an accomplice. The Jefferis court synthesized the criminal and civil elements of accomplice liability to be used “to determine the extent of liability in a social host situation involving an intoxicated minor:

“(1) the defendant must have intended to act in such a way so as to furnish, agree to furnish or promote the furnishing of alcohol to the minor, and
“(2) the defendant must have acted in a way which did furnish, agree to furnish, or promote the furnishing of alcohol to the minor, and
“(3) the defendant’s act must have been a substantial factor in the furnishing, agreement to furnish, or the promotion of alcohol to the minor.” Jefferis v. Commonwealth, 371 Pa. Super, at 18-19, 537 A.2d at 358.

Plaintiff alleges that defendants fraternity and university should be considered accomplices in furnishing alcohol to a minor in violation of Pennsylvania law. We disagree with plaintiff.

Plaintiff’s allegations in the complaint do not rise to a level sufficient to impose accomplice liability upon defendants fraternity and university. A demurrer requires this court to accept all well-pleaded facts as true. Even with that standard, defendants fraternity and university did not act in concert with the local fraternity in furnishing alcohol to plaintiff, a minor. Therefore, Counts I and VI, misidentified as Count IV, are dismissed.

In Counts II and VII of the complaint, plaintiff alleges negligence on the part of defendants fraternity and university. The Pennsylvania Supreme Court, in Alumni Association v. Sullivan, 524 Pa. 356, 572 A.2d 1209 (1990), had to determine if a national fraternity and university should be considered social hosts and therefore liable for the actions arising from a party at a fraternity chapter’s house. Relying upon their holding in Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), the, Alumni Association court determined that the national fraternity and university should not be considered social hosts because they did not breach the standard of care. In order to be liable as a social host, one must have “ ‘knowingly furnished’ alcoholic beverages to a minor.” Alumni Association, 524 Pa. at 364, 572 A.2dat 1212. “The ‘knowingly furnished’ standard requires actual knowledge on the part of the social host as opposed to imputed knowledge imposed as a result of the relationship.” Id. (emphasis added)

In the instant case, plaintiff alleges that “defendant [fraternity] breached said duty in failing to supervise compliance with said information communicated/published, especially where similar prior incidents by Sigma Pi-ESU evinced an utter disregard for said prior information that defendant communicated/published.” (See plaintiff’s complaint.) Furthermore, “defendant’s negligence in failing to address perceived risk of recurrence in a reasonable way was a substantial factor in causing said injuries suffered by plaintiff attendant to said breach.” (See plaintiff’s complaint.) Plaintiff alleges the identical cause of action against defendant university. In essence, plaintiff avers that defendants knew of previous underage parties at the chapter house. Defendants undertook steps to educate and prevent the chapter house from having these parties. In the complaint, plaintiff contends that defendants should be held responsible because they attempted to mend the problem. We disagree with plaintiff.

Unless defendants fraternity and university had actual knowledge of the party at which plaintiff was injured, liability will not follow. Plaintiff fails to aver actual knowledge on the part of plaintiff. Therefore, in the absence of actual knowledge, plaintiff claims of negligence against defendants fraternity and university must be dismissed.

In Counts III and VII of the complaint, plaintiff alleges that defendants fraternity and university are liable respectively as vendors in violation of 47 P.S. §4-493(1) for serving alcohol to a minor. 47 P.S. §4-493(1) states, in pertinent part, that:

“It shall be unlawful—
“(1) For any licensee or the board, or any employee, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given to any person visibly intoxicated, or any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.” 47 P.S. §4-493(1).

Plaintiff contends that defendants fraternity and university should be considered licensees. We disagree with plaintiff.

Defendants fraternity and university should not be considered licensees for purposes of 47 P.S. §4-493(1). Defendants fraternity and university did not know about the party nor did they sponsor the party. It would be absurd to consider these unwilling participants licensees and therefore liable for violation of 47 P.S. §4-493. Therefore, Counts III and VII are dismissed.

Counts IV and IX allege liability on the part of defendants fraternity and university for breach of duty owed a business licensee. In Pennsylvania, it is well established that “[t]he standard of care a possessor of land owes to one who enters upon the land depends upon whether the latter is a trespasser, licensee, or invitee.” Emge v. Hagosky, 712 A.2d 315, 317 (Pa. Super. 1998), citing Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978). Plaintiff refers to himself as a business licensee. We believe plaintiff is in error and meant to refer to himself as a business invitee. For the purposes of preliminary objections in the nature of a demurrer, we shall afford plaintiff this higher standard of care.

“A business invitee is a person who is invited to enter or remain on the land of another for a purpose directly or indirectly connected with business dealings with the possessor of land.” Emge v. Hagosky, 712 A.2d at 317. (emphasis added) “The landowner is under an affirmative duty to protect a business visitor not only against known dangers but also against those which might be discovered with reasonable care.” Id. Plaintiff contends that defendants fraternity and university failed to protect plaintiff, a business invitee, at the fraternity party. Plaintiff argues that defendants fraternity and university should have supervised the party and the lack of supervision led to injuries sustained by plaintiff when a group of students assaulted plaintiff.

Defendant fraternity is a fraternal organization with its business address in Vincennes, Indiana. (See plaintiff’s complaint.) Nowhere in plaintiff’s complaint is it alleged that defendant fraternity is the possessor of the land in question. Plaintiff also fails to allege that defendant ESU is the possessor of the land. As a result, we can only dismiss where the complaint clearly fails to state a claim upon which relief can be granted. Plaintiff cannot assert a claim of breach of duty to a business invitee against a defendant not in possession of the land at issue. Plaintiff fails to allege that defendants fraternity and university are possessors of the land. In fact, plaintiff avers that defendant Beta PSI Housing Association/Beta Housing Association Inc. is the landlord/manager of the fraternity house. (See plaintiff’s complaint.) Therefore, plaintiff cannot assert a claim for breach of duty to a business invitee against defendants fraternity and university. Counts IV and IX are dismissed in the nature of a demurrer.

In Counts V and X of the complaint, plaintiff alleges strict liability for public nuisance on the part of defendants fraternity and university respectively. In Pennsylvania, a public nuisance is defined as “an unreasonable interference with a right common to the general public.” Muehlieb v. City of Philadelphia, 133 Pa. Commw. 133, 140, 574 A.2d 1208, 1211 (1990), quoting Restatement (Second) of Torts §821B. We are faced with a conundrum. Plaintiff alleges that defendants fraternity and university are liable for the public nuisance caused by the local fraternity. We believe that defendants fraternity and university are inappropriate parties with which to assert a public nuisance claim. The party was not a school-sponsored event. Therefore, defendant university was not involved. Furthermore, defendant fraternity has its offices in Indiana. Defendant fraternity was not involved in this event staged by the local fraternity chapter. Therefore, because defendants fraternity and university are inappropriate parties against whom to assert a public nuisance claim, Counts V and X are dismissed.

In Counts XVI and XVII, plaintiff alleges that defendants fraternity and university are liable for the imputed conduct of Sigma Pi-ESU respectively. We disagree with plaintiff. We have determined that defendants fraternity and university should not be held responsible for the alleged negligent conduct of the local fraternity. Therefore, we find that defendants fraternity and university cannot be held liable for the imputed conduct of the local fraternity chapter. To permit plaintiff to hold defendants fraternity and university accountable for the assault upon plaintiff by members of a local fraternity chapter would border on the absurd. Therefore, Counts XVI and XVII of the complaint are dismissed in the nature of a demurrer.

Accordingly, we enter the following order:

ORDER

And now, January 25, 1999, Counts I through XVII are dismissed in the nature of a demurrer. Plaintiff’s complaint is hereby dismissed.


author: MORRIS,

text:
    In re Anonymous No. 123 D.B. 96

      Disciplinary Board Docket no. 123 D.B. 96.
    July 23, 1998
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

MORRIS,

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

I. HISTORY OF PROCEEDINGS

On September 26, 1996, a petition for discipline was filed. On November 12, 1996, the matter was referred to a Hearing Committee (comprised of [ ], [ ] and [ ]). Respondent did not file an answer to the petition. A hearing was held on March 11, 1997, at which respondent represented himself.

On April 2, 1996, the Hearing Committee filed its report recommending a six-month suspension. Neither petitioner nor respondent filed any brief with the Disciplinary Board.

The matter was adjudicated by the Disciplinary Board at its June 10, 1998 meeting.

II. FINDINGS OF FACT

(1) Respondent was admitted to the practice of law in the Commonwealth of Pennsylvania on January 8, 1982. He maintains an office in his home at [ ]. (NT 75, 79.)

(2) From 1982 until June 4, 1995, respondent was an admitted attorney on active status. By order effective June 14, 1995, the Supreme Court of Pennsylvania placed respondent on inactive status for failure to comply with the Pennsylvania Rules for Continuing Legal Education. Subsequent to all material events in this matter, respondent complied with his CLE requirements and he was returned to active status on October 31, 1997. Thus, respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania, as a “formerly admitted attorney” and as an “admitted attorney.” Pa.R.D.E. 201(a)(1) and (3).

(3) Respondent is also admitted as an attorney in New Jersey, where he also maintains an office and where the bulk of his practice is located. (NT 64.)

(4) On July 7, 1993, [A] was involved in an automobile accident. (Stipulation of fact no. 1.)

(5) On or about July 10, 1993, respondent agreed to represent [A] in connection with her accident on the basis of a 33 percent contingent fee. (Stipulation of fact nos. 2 and 3.)

(6) On November 18,1994, a final compliance report and notice was sent to respondent at his record address. The report notified respondent that he was not in compliance with his CLE obligations. The report further notified respondent of the consequences of noncompliance — i. e. transfer to inactive status with the attendant obligations of Enforcement Rule 217. (Exhibit P-2.)

(7) On March 22, 1995, the CLE board sent a further notice which provided the details of respondent’s noncompliance and specified the actions required to achieve compliance. This notice was sent by certified mail and was received by the respondent. (Exhibit P-2, attachments C and D.)

(8) By order of May 15, 1995, the Supreme Court of Pennsylvania transferred respondent to inactive status for failure to comply with CLE requirements. By its terms, the order became effective on June 14, 1995. (Exhibit P-1, attachment A.)

(9) By letter addressed to respondent and dated May 16,1995, Elaine M. Bixler, secretary of the Disciplinary Board, forwarded a copy of the May 15, 1995 order of the Supreme Court of Pennsylvania, transferring respondent to inactive status. In this letter, Ms. Bixler informed respondent that he was required to comply with Enforcement Rule 217. Ms. Bixler further informed respondent that in order to resume active status, he would be required to comply with the Pennsylvania Rules for Continuing Legal Education before an application for reinstatement to the Disciplinary Board would be reconsidered. (Exhibit P-1, attachment B.) This letter with enclosures was sent to respondent by certified mail, return receipt requested, addressed to respondent’s last registration address. It was returned to the office of the secretary of the Disciplinary Board marked “unclaimed.” (Exhibit P-1, attachment C.)

(10) On June 23,1995, notice of transfer of respondent to inactive status was published in the [ ] and [ ]. (Exhibits P-3 and P-4.)

(11) On July 5, 1995, respondent entered his appearance and filed a complaint in the matter of [A]

v. [B], no. [ ], in the Court of Common Pleas of [ ] County, Pennsylvania. (Exhibits P-5 and P-6.) (12) From July 5, 1995 through March 10, 1997, respondent continuously represented [A] in the accident case which he filed. This representation included the normal activities associated with discovery and negotiation in such cases. (NT 29-30, 35, 37-39, 40-42; stipulation of fact nos. 8-16.) Respondent ultimately settled the case on March 10, 1997 — the day before his hearing in this matter. (NT 59.)

(13) It is unclear and perhaps immaterial when respondent actually became aware that he had been transferred to inactive status. However, he conceded that he was aware of his status by the fall of 1995. (NT 88.)

(14) Throughout the period of his representation of [A], respondent was sent an additional notice of the consequences of his inactive status. On December 22, 1995, the Office of Disciplinary Counsel mailed to respondent a request for statement of respondent’s position concerning allegations that respondent had failed to comply with Pa.R.D.E. 217 and that he was continuing the practice of law despite being on inactive status. (Exhibit P-9, attachment A.) This letter was sent by certified mail, but was returned as “unclaimed.” (Exhibit P-9, attachment B.)

(15) On or about January 29, 1996, Investigator [C] from the Office of Disciplinary Counsel personally served the request for statement of respondent’s position upon respondent’s wife. (Exhibit P-7; NT 71-73.) Respondent acknowledged that he in fact received the request for a statement of his position. (NT 72-73, 93.)

(16) Respondent did not submit an answer to the request for his position to the Office of Disciplinary Counsel. (NT 73.)

(17) On or about October 9, 1996, Investigator [D] from the Office of Disciplinary Counsel, personally served upon respondent a petition for discipline pertaining to the present disciplinary matter. (Exhibit P-8; NT 73.) The petition for discipline specifically cites as misconduct respondent’s ongoing representation in the [A] v. [B] case. (Petition for discipline, paragraphs 10-18.)

(18) A hearing in this matter was originally scheduled for February 6, 1997. On the day of the scheduled hearing, respondent made a telephonic request for a continuance on the ground of illness. (Transcript of 2/6/97 at p. 3.)

(19) The hearing was rescheduled for March 11,1997.

(20) Respondent settled the [A] case on March 10, 1997 for $8,500. (NT 59.)

(21) Respondent never notified [A] by registered or certified mail that he was on inactive status (Stipulation of fact no. 23), nor did he ever advise her to obtain substitute counsel. (Stipulation of fact no. 24.) Rather, [A] learned of respondent’s status when she was contacted by an investigator from the Office of Disciplinary Counsel. (Stipulation of fact no. 18.)

(22) Respondent has never filed any verified statement of compliance with Rule 217. (Exhibit P-1, paragraph 5.)

(23) At all times material to this proceeding, respondent had not been restored to active status. (Stipulation of fact no. 26.)

III. CONCLUSIONS OF LAW

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

“(1) R.P.C 1.16(a) Declining or terminating representation
“A lawyer shall withdraw from representation of a client if:
“(1) the representation will result in violation of the rules of professional conduct or other law; . . .
“(2) Pa.R.D.E. 217(b) Formerly admitted attorneys
“(b) A formerly admitted attorney shall promptly notify, or cause to be notified by registered or certified mail, return receipt requested, all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the disbarment, suspension or transfer to inactive status and consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension or transfer to inactive status. The notice to be given to the client shall advise the prompt substitution of another attorney or attorneys in place of the formerly admitted attorney. In the event the client does not obtain substitute counsel before the effective date of the disbarment, suspension or transfer to status, it shall be the responsibility of the formerly admitted attorney to move in the court or agency in which the proceeding is pending for leave to withdraw. The notice to be given to the attorney or attorneys for an adverse party shall state the place of residence of the client of the formerly admitted attorney.
“(3) Pa.R.D.E. 217(e):

“Within 10 days after the effective date of the disbarment, suspension or transfer to inactive status order, the formerly admitted attorney shall file with the board a verified statement showing:

“(1) that the provisions of the order and these rales have been fully complied with; and
“(2) all other state, federal and administrative jurisdictions to which such person is admitted to practice. Such statement shall also set forth the residence or other address of the formerly admitted attorney where communications to such person may thereafter be directed.”

IV. DISCUSSION

Respondent was admitted to practice in Pennsylvania in 1982 and has maintained an office at his home in [ 3 ([ 3 County). Respondent is also admitted in New Jersey, where he performs the vast majority of his legal work. Perhaps because his professional focus was elsewhere, respondent failed to comply with his Pennsylvania CLE requirements for the period ending August 31, 1994. In fact, respondent received no CLE credits for that period.

On November 18, 1994, the CLE board sent respondent a final compliance report for the period in question. The report noted that respondent was not in compliance. The report advised respondent of the steps to be taken to meet the CLE requirements and warned him of the consequences of noncompliance.

Respondent took no steps to comply. Thus, on May 15, 1995, the Supreme Court of Pennsylvania entered an order transferring respondent to “inactive” status. The order became effective June 14, 1995. As a follow-up to the Supreme Court order, the Disciplinary Board wrote to the respondent on May 16, 1995, informing him of the court order and of his resulting obligations under Enforcement Rule 217. (Pa.R.D.E. 217 requires, inter alia, that the inactive attorney withdraw from pending representations and provide written verification of compliance to the Disciplinary Board.) This letter was sent by certified mail to respondent’s office, but was returned “unclaimed.” Thereafter, the board resorted to newspaper publication.

Interspersed with these events and with the ensuing disciplinary process, respondent continued to represent [A] in connection with an automobile accident which occurred on July 7, 1993. On July 10,1993, respondent agreed to represent [A] on a contingent fee basis. On July 5,1995 — at a time when respondent was on inactive status — he filed his appearance and a civil complaint on [A’s] behalf in the Court of Common Pleas of [ ] County.

Respondent states that he was unaware that he was “inactive” when he filed the civil complaint. This claim cannot be refuted since the notice from the board was returned “unclaimed” and since respondent stated that he did not see the published notice in either the local newspaper or bar journal. The claim would also involve, however, an inexplicable ignorance of the advisory notices contained in the November 18, 1994 and March 22, 1995 letters from the CLE board.

It is unnecessary to determine the precise date when respondent learned of his status. In the first place, it is not unreasonable to expect an attorney to be continuously aware of the status of his privilege to practice law. More concretely, respondent concedes that as of September or October of 1995, he was aware that he was “inactive” (NT 57), and that he was therefor prohibited from practicing law. (NT 61.)

Notwithstanding his knowledge of this prohibition, respondent continued to practice law in his litigation of the [A] case. Rather than notify his client and adversary and rather than arrange for substitute counsel, as required by Pa.R.D.E. 217(b), respondent simply proceeded with the case: scheduling and re-scheduling depositions, demanding and providing discovery, attempting to settle the case.

At the hearing in this matter, a panel member asked the obvious question: “What was going on in your mind?” Respondent answered: “I just figured I would settle the case and I wouldn’t take a case — I mean, I don’t know.” (NT 96.)

As respondent explains it, the [A] family were friends. [A’s] case was his only pending matter in Pennsylvania and he was embarrassed to deal with the situation. (NT 58-59.) Unfortunately, the matter does not admit to such a forgiving explanation. On January 29, 1996, the Office of Disciplinary Counsel requested from respondent a statement of his position ás to why he had not complied with Pa.R.D.E. 217. Respondent ignored this request. On October 19, 1996, respondent was served with the instant petition for discipline which specifically alleged unauthorized practice in the [A] case.

Thus, there came a point in October of 1996 when respondent knew that he was subject to discipline because of his continuing unauthorized practice of law in the [A] case. Even at this point, respondent failed to cease his unauthorized practice of law. The hearing in this matter was initially scheduled for February 6, 1997. Respondent’s request for a continuance was granted and the hearing was rescheduled for March 11, 1997. On March 10, 1997, respondent settled the [A] case.

The foregoing presents a sorry and disturbing story. Continuing Legal Education is an ongoing professional requirement in Pennsylvania. The consequences of dereliction are not imposed with haste or without repeated warning. However, the ultimate consequence — the loss of the privilege to practice law — is the enforcement tool of the CLE program which the Supreme Court has established and to which it has stated its strong commitment. After totally ignoring his CLE obligations and the ensuing warnings, respondent faced the ultimate consequence when he was placed on inactive status effective June 14, 1995. Thereafter, respondent failed to comply with Pa.R.D.E. 217, and, more seriously, he continued to practice law knowing that he was not entitled to do so. Most astonishingly, he continued up to the day before his disciplinary hearing to handle the very case which was a cited subject of the hearing. It is undisputed that respondent violated R.P.C. 1.16(a) and Pa.R.D.E. 217(b) and (e).

The primary goal of the disciplinary process is the protection of the public from unfit attorneys. Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). Here, there is no allegation of general unfitness. Respondent has not been the subject of prior discipline. He did not mistreat his client and there is no indication that he mishandled her case. What respondent mishandled gravely was the matter of his own professional standing. By his willful failure to adhere to the rules of the disciplinary process, respondent turned a remediable situation into an outright defiance of the legal system.

The Supreme Court has firmly stated that it will not tolerate a lax approach to the disciplinary process. Matter of Leopold, 469 Pa. 384, 366 A.2d 227 (1976). Thus, the defiant unauthorized practice of law can lead to severe discipline. Disbarment was ordered in Office of Disciplinary Counsel v. Jackson, 536 Pa. 26, 637 A.2d 615 (1994), where the unauthorized practice occurred during a five-year suspension for prior misconduct and included a participation in a perjurious claim. Similarly, disbarment resulted where an attorney had an extensive record of prior discipline and where the unauthorized practice was marked by dishonesty. In re Anonymous No. 135 D.B. 94 and 38 D.B. 95, 33 D.&C.4th 481 (1996).

Fortunately, respondent’s unauthorized practice was limited in scope. There is no allegation of secondary dishonesty and respondent has no prior disciplinary record. Yet, within that limited scope, respondent completely disregarded the rules and processes governing all attorneys. He defied an order of the Supreme Court; he ignored the compliance demands of the Disciplinary Board; and he remained undeterred by the petition filed against him.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be suspended from practice for six months. It is further recommended that the expenses incurred in the investigation and prosecution of this matter be paid by the respondent.

Board Members George and Cunningham did not participate in the June 10, 1998 adjudication.

ORDER

And now, September 11, 1998, upon consideration of the report and recommendations of the Disciplinary Board dated July 23, 1998, it is hereby ordered that [respondent] be and he is suspended from the bar of this Commonwealth for a period of six months, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

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

      . The record indicates that respondent received no CLE credits for the period ending August 31, 1994. Between March 22, 1995 and November 13,1995, respondent received four substantive credits. These credits were insufficient to establish compliance.

      . Rule 217, Pa.R.D.E. sets forth the obligations of “formerly admitted attorneys” which includes attorneys who are transferred to inactive status. See Rule 102, Pa.R.D.E. In its most pertinent parts, Rule 217 required respondent to (1) notify all clients of his status; (2) discontinue his representation in pending matters; and (3) provide to the Disciplinary Board a verified statement of compliance with the rule.

      . The process of involuntary transfer to inactive status and the ensuing disciplinary process in the case produced a volume of correspondence to the respondent. Two items sent by certified mail (the May 16, 1995 notice from the Disciplinary Board and the December 22, 1995 notice of failure to comply with Pa.R.D.E. 217) were returned “unclaimed.” Respondent did receive and acknowledged receipt of the final notice from the CLE board dated March 22, 1995. Of the various correspondence sent by regular mail, respondent could not remember what he actually received. (NT 72-73, 81-83.)


author: McANDREWS, J.,

text:
    Musselman v. Davison

      C.P. of Bucks County,
    no. 92-02407-18-2.

      Kevin Sommar, for plaintiffs.

      Gregory F Lepore, for defendants.
    April 27, 1999
   McANDREWS, J.,

This matter is before the court on plaintiffs’ motion for post-trial relief.

This case arose out of injuries sustained by plaintiff Helena Musselman when she fell on April 26, 1990 at the property she was renting from Laureen Davison and Raymond Bechtel. Musselman, whose foot was in a cast at the time, fell while descending the four carpeted steps in front of the home. Musselman claimed that her foot became wedged in the step, she fell backwards and she hit her head. As a result, she claimed to have suffered from post-traumatic stress syndrome, frequent migraine headaches and loss of memory.

A trial was held on December 7, 8 and 9. The jury returned a verdict in favor of defendants. The jury, in answer to the special interrogatory, found defendants’ negligence was not a substantial factor in bringing about the plaintiff’s harm.

Plaintiffs filed timely post-trial motions seeking a new trial, alleging that: (1) the verdict was contrary to and against the weight of the evidence; (2) defendants’ expert, Dr. Seward, improperly rendered opinions beyond his expertise and qualifications; (3) that the introduction of Helena Musselman’s prior use of medication was improper; and (4) that plaintiff was unduly prejudiced when the court reversed its ruling on the motion in limine seeking to exclude evidence of plaintiff’s prior medical history and prior and subsequent falls. The court will address each argument in turn.

A new trial should be granted where the verdict is so contrary to the evidence that it “shocks one’s sense of justice.” Neison v. Hines, 539 Pa. 516, 518, 653 A.2d 634, 636 (1995). However, “a new trial will not be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury could have decided in favor of either party.” S.N.T. Industries Inc. v. Geanopulos, 363 Pa. Super. 97, 105, 525 A.2d 736, 740 (1987). In this case, there was conflicting evidence on exactly how plaintiff fell.

The record discloses that there were four exterior steps which plaintiff was descending. The steps were covered with carpet. The fourth step was rotted underneath the carpet and was soft. Plaintiff contended that she stepped on the soft spot and fell backwards, hitting her head. Musselman’s daughter had testified that her mother fell backwards and hit her head on the step. However, her daughter had preceded her down the steps, and did not see what caused the fall. Plaintiff testified at trial that she fell backwards. However, the transcript of prior deposition indicated that she said that she did not know how she fell. Defendants contended that plaintiff’s foot was caught under the railing and not in the step. Plaintiff conceded this was possible. The general rule is “a jury is free to believe any part of a witness’s testimony that they choose, and may disregard any portion of the testimony that they disbelieve.” Hutchison by Hutchison v. Luddy, 453 Pa. Super. 420, 683 A.2d 1254 (1996), alloc. denied, 548 Pa. 653, 698 A.2d 67 (1997). Given the conflict in testimony, the jury could have concluded that plaintiff did not fall as a result of the deteriorated step.

Plaintiffs’ second argument is that defendants’ expert, Dr. Seward, improperly rendered opinions beyond his expertise and qualifications. Dr. Seward was offered and received as an expert in neuropsychology. Additionally, Dr. Seward testified that he works as a psychologist for the State of Delaware’s forensic unit. In this capacity, he has contact with people sent for evaluation and treatment, many of whom are substance abusers.

Plaintiff contends that no foundation existed for Dr. Seward’s testimony that misutilization of pain medication resulted in her memory impairment and cognitive deficits. Plaintiffs point out that there was no evidence of memory impairment prior to the 1990 incident and that no medical doctor testified that Musselman was addicted to drags. Therefore, plaintiffs claim when Seward rendered an opinion that Musselman had a drag addiction, he went beyond the scope of his qualifications.

Plaintiffs, however, mischaracterize Seward’s testimony. Dr. Seward testified, since he had not seen Musselman clinically, that he did not feel competent to diagnose her. Dr. Seward never stated that Musselman -was addicted to drags. He only opined that her pattern of behavior might warrant further investigation. Also, Seward testified that use of drags could cause memory loss, not that it specifically did in Musselman’s case. Since Dr. Seward did not conclude that Musselman was addicted to drags, but merely drew his opinions that her behavior may warrant further investigation from the reports and records of other doctors, his testimony did not go beyond the scope of his qualifications.

Additionally, plaintiffs claim that Seward improperly testified to opinions contained within reports and periodicals that were not attributed to him. Plaintiffs’ counsel at trial objected to Dr. Seward’s testimony in that: (1) he referenced the Physicians’Desk Reference which went beyond his report; and (2) that he was improperly asked what was the current trend in the relevant literature.

With respect to the use of the Physicians’ Desk Reference, defendants properly note that the text is a standard reference relied upon by both physicians and other health care professionals. The text defines the relevant uses of medication, potential side effects, chemical nature and narcotic class of prescription medications. Dr. Seward, in his profession, used such a text to form his opinions. On the matter of referencing current literature, the witness did refer to trends in current neuropsychiatric literature. Dr. Seward, as a physician, would be required to stay informed of material his profession relies upon. The court, therefore, does not believe that Dr. Seward’s testimony went beyond the scope of his qualifications.

Third, plaintiffs contend that the introduction of Helena Musselman’s prior use of medication was improper. “Generally, a trial judge should admit all relevant evidence unless a specific rule bars its admission.” Valentine v. Acme Markets Inc., 455 Pa. Super. 256, 261, 687 A.2d 1157, 1160 (1997). In order to constitute reversible error, “an evidentiary ruling must not only be erroneous, but also harmful to the complaining litigant.” Id.

The court admitted evidence of plaintiff’s prior medication use because it was relevant to the testimony of both plaintiffs’ expert, Dr. Gordon, and defendants’ expert, Dr. Seward. Dr. Gordon had testified that Mussel-man was diagnosed as suffering from depression resulting from the fall. Dr. Seward’s testimony explained that the use of both narcotic and non-narcotic pain killers can cause a patient to present with symptoms of depression. Therefore, Musselman’s use of medication was relevant to show another possible cause for her depression — that the depression could have been caused by the medication rather than her fall.

In regard to plaintiff’s past drug use, this was relevant to show an alternate cause for potential memory loss, which plaintiffs contended resulted from the fall. Dr. Seward testified that use of narcotic medications may cause cognitive defects. Again, this information would allow the jury to assess an alternate theory for Mussel-man’s memory loss.

The last issue plaintiffs raise is that plaintiff was unduly prejudiced when the court reversed its ruling on the motion in limine seeking to exclude evidence of plaintiff’s prior medical history and prior and subsequent falls. Generally, it cannot be proven that a person committed an act by showing that that person committed a similar act in the past. Levant v. Leonard Wasserman Co. Inc., 445 Pa. 380, 382-83, 284 A.2d794, 796 (1971). However, testimony of prior falls is admissible where “the injuries from that alleged accident [can] be connected to those claimed in the present suit, so as to raise the inference of a pre-existing condition.” Valentine v. Acme Markets Inc., 455 Pa. Super. 256, 261, 687 A.2d 1157, 1160 (1997) (citing Papa v. Pittsburgh Penn-Center Corp., 421 Pa. 228, 218 A.2d 783 (1966)).

While the court initially ruled in favor of plaintiffs to exclude the evidence of plaintiff’s prior medical history and prior and subsequent falls, as the trial and testimony progressed, the court allowed the information in for the limited purpose of establishing the possibility of a pre-existing condition. Plaintiff had fallen or been injured on a number of occasions prior to her fall on the steps in 1990. Plaintiff fell in 1978, was in a car accident in 1980, fell down a set of stairs in 1982, and was in a second car accident in 1986. She suffered a concussion in the 1982 fall. Subsequent to her car accidents, plaintiff had suffered from migraines. These prior falls and accidents would go to establishing that her migraines and memory loss were prior existing conditions. Therefore, the prior falls and injuries were properly admitted for that purpose.

Plaintiff was also asked about three injuries subsequent to her 1990 fall, which plaintiffs contend should not have been admitted. One of the subsequent falls had been brought into evidence previously by plaintiffs’ expert, Dr. Ruth, during direct examination. Further, plaintiffs did not object to this testimony and failed to object on a second occasion as well. On a third occasion, plaintiffs did object and the evidence was excluded. The subsequent falls were, therefore, admitted into evidence by either the plaintiff, or by plaintiffs’ failure to object to the testimony.

For the foregoing reasons, plaintiffs’ motion for post-trial relief in the form of a new trial is denied.

ORDER

And now, April 27, 1999, it is ordered and directed that plaintiffs’ motion for post-trial relief be and is hereby denied.