author: ZULICK, J.,

text:
    Byrns v. Urology Assocs. of the Poconos, Inc.

      C.P. of Monroe County,
    no. 1683 CV 2009.

      Howard M. Levinson, for plaintiff.

      John G. Swatskoski, for defendant.
    November 12, 2010
   ZULICK, J.,

This is a medical malpractice action arising from injuries allegedly sustained by the plaintiff, Maureen Byrns (“Byrns”) during the course of a medical procedure on March 26, 2007. On that date, Byrns underwent extracorporeal shock wave lithotripsy for the removal of a kidney stone. During this procedure, Byrns alleges that she suffered four fractured ribs resulting in a condition known as intercostal neuralgia or nerve pain in the area of the ribs.

Byrns filed a praecipe for writ of summons on February 26, 2009, and then a complaint on May 18,2009, alleging medical negligence, corporate negligence, failure to obtain informed consent, and loss of consortium. On September 16, 2009, Byrns served interrogatories and a request for production of documents. The defendants responded with general obj ections, before serving Byrns with supplemental responses.

On June 3,2010, Byrns filed two motions to dismiss the discovery objections, one directed to Pocono Ambulatory Surgery Center (“PASC”) which had objected to Byrns’ request for production of documents and to compel discovery, and another opposing the objections of Dr. James Moyer (“Dr. Moyer”) and Urology Associates of the Poconos (“Urology Associates”) to the plaintiff’s interrogatories and request for production of documents. PASC responded in opposition on June 21, 2010, and Dr. Moyer and Urology Associates followed in kind on June 24, 2010, amending their opposition on July 1, 2010. Arguments on this matter were heard on July 6, 2010. After argument, an order was entered for in camera review of contested documents. The parties have complied with that request.

The first issue before the court is whether Byrns’ motion to dismiss PASC’s objections to their request for production of documents should be granted. Specifically, Byrns seeks four documents which the PASC lists on a privilege log - PASC Nos. 000011, 000012, 000013-000014 and 000091 - and claims are protected from discovery under the attorney-client, work product and/ or peer review privileges. Byrns also requests any and all documents relating to communications with the joint commission on accreditation of Healthcare Organizations (“joint commission”) regarding this matter.

The second issue presented is whether Byrns’ motion to dismiss the objections of defendants Moyer and Urology Associates to Byrns’ interrogatories and general request for production of documents should be granted. The defendants have objected to interrogatories nos. 8, 13, 29, 30, 31, 38, 39, 40, 41, 53, 54, 55 and 63 on various grounds.

The third issue before the court is whether the Moyer and Urology Associates responses to interrogatories nos. 47, 48, 49, 50, 57 and 58 were complete and thus require no supplementation under the Pennsylvania Rules of Civil Procedure.

I. PASC’S OBJECTIONS TO PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

PASC has filed a privilege log and has withheld four documents on claims of privilege. PASC contends that three of the four documents in dispute are protected by the attorney-client privilege and/or the work product doctrine. The first of these documents, identified as PASC No. 000011 on the defendant’s privilege log, is described by PASC as notes made by Mary Hayden, administrative director of PASC, related to conversations with PASC’s insurance carrier with specific references to requested legal advice. The second document, PASC No. 000012 on the privilege log, allegedly contains Hayden’s personal thoughts and opinions following a meeting between herself and Byrns, which was allegedly recorded to assist her in later recollection and consulation with an attorney. The third document, PASC No. 000091, is a “Root Cause Analysis of Event,” a series of conclusions after investigation by Hayden and other PASC representatives regarding this matter that were allegedly prepared for the purpose of being submitted to peer review or for counsel.

The question of whether attorney-client privilege protects a particular communication is a matter of law. In re Estate of Wood, 818 A.2d 568, 571 (Pa. Super. 2003). Therefore, it is for the trial court judge to decide whether the communication is privileged or not. Moore v. Bray, 10 Pa. 519 (1849).

Recognizing the importance of the attorney-client privilege, the Pennsylvania general assembly codified it:

In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client. 42 Pa.C.S.A. § 5928.

In order to successfully invoke the protections of the attorney-client privilege, four elements must be satisfied:

1) The asserted holder of the privilege is or sought to become a client.
2) The person to whom the communication was made is a member of the bar of a court, or his subordinate.
3) The communication relates to a fact of which the attorney was informed by his client, without the presence of strangers, for the purpose of securing either an opinion of law, legal services or assistance in a legal matter, and not for the purpose of committing a crime or tort.
4) The privilege has been claimed and not waived by the client. Nationwide Mut. Ins. Co. v. Fleming, 924 A.2d 1259, 1264 (Pa. Super. 2007); Commonwealth v. Mrozek, 657 A.2d 997, 998 (Pa. Super. 1995).

“The attorney-client privilege protects only those communications made by a client to his or her attorney that are confidential and made in connection with the providing of legal services or advice.” Nationwide, 924 A.2d at 1264. Contrary to the parties’ attempts to pass the burden off on each other, both share the responsibility in resolving a dispute over the disclosure of communications. As articulated by the Superior Court in Nationwide, there is a two-part, burden-shifting inquiry that has been used by the Pennsylvania Supreme Court to resolve these disputes. Nationwide, 924 A.2d at 1265-66 (citing In re Investigating Grand Jury of Phila. County No. 88-00-3503, 527 Pa. 432, 593 A.2d 402 (Pa. 1991)).

I directed PASC to produce these documents for an in camera review. Applying the four-part test enumerated above to document nos. 11,12 and 91, I find that the attorney-client privilege does not apply because the notes were not a communication to PASC’s attorneys; rather they were memoranda documenting discussions with or about Maureen Byrns after PASC had been put on notice of her intent to claim damages.

PASC also contends that the documents should be protected because they are covered by the work-product doctrine. However, Pennsylvania Rule of Civil Procedure 4003.3 requires the production of information prepared in anticipation of litigation:

Rule 4003.3. Scope of discovery. Trial preparation material generally
Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that otherparty’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics. Pa.R.C.P. 4003.3.

“Under the 1978 amendments, subdivision (d) of Rule 4011 was rescinded and eliminated. This subdivision precluded the discovery of information or other things made or secured by any person or party in anticipation of litigation or in preparation for trial, other than information as to the identity or whereabouts of witnesses. The discovery of trial preparation material is now allowable in accordance with Pa.R.C.P. 4003.3 through 4003.5.” McDevitt v. Terminal Warehouse Co., 450 A.2d 991, 1000 (Pa. Super. 1982); Tate v. Philadelphia Sav. Fund Society, 1 Pa. D. & C.4th 131, 135 (Phila.C.P.1987). PASC will be directed to produce the reports of Ms. Hayden at Nos. 11, 12 and 91.

The fourth document in dispute - PASC Nos. 000013-000014 - has been termed a “root cause analysis” by PASC, created as part of PASC’s peer review process following notice of Byrns’ complaint with the joint commission about her procedure.

PASC contends this document is protected under the Peer Review Protection Act (“PRPA”), 63 P.S. § 425.1, et seq. Concerning the confidentiality of the review organization’s records, the PRPA states:

The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinions or other actions of such committee or any members thereof: Provided, however, that information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him as a result of said committee hearings. P.S. §425.4.

The Peer Review Protection Act “represents a determination by the legislature that, because of the expertise and level of skill required in the practice of medicine, the medical profession itself is in the best position to police its own activities.” Young v. Western Pa. Hosp., 722 A.2d 153, 156 (Pa. Super. 1998) (quoting Cooper v. Delaware Valley Med. Ctr., 630 A.2d 153, 156 (Pa. Super. 1993)). The “proceedings and records of a review committee” are protected. Id. at 155. However, the PRPA does not protect information, documents or records otherwise available from original sources simply because they were presented before a review committee. See 63 P.S. § 425.4.

The party asserting the privilege, here PASC, has the burden to establish the requested documents were produced by a “review committee” during the course of a “peer review” as defined by the PRPA. See Joe v. Prison Health Services, Inc., 782 A.2d 24, 32 (Pa. Commw. 2001). The PRPA defines a “review committee,” in pertinent part, as:

Any committee engaging in peer review...established... to gather and review information related to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep with reasonable bounds the cost of health care. It shall also mean any hospital board, committee or individual reviewing the professional qualifications or activities of its medical staff or applicants for admission thereto. 63 P.S. § 425.2 (emphasis added).

The PRPA defines “peer review,” in pertinent part, as:

The procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review, claims review, and the compliance of a hospital, nursing home or convalescent home or other health care facility operated by a professional health care provider with the standards set by an association of health care providers and with applicable laws, rules and regulations. 63 P.S. §425.2.

Based on a plain reading of the PRPA and its definitions, PASC has sustained its burden and has established that the “Root Cause Analysis” was produced by a review committee during the course of a peer review. As the administrator and corporate representative of PASC, Ms. Hayden, who is also a registered nurse, falls squarely within the definition of “professional health care provider.” See 63 P.S. § 425.2. Ms. Hayden was acting within that capacity when she generated the analysis for the purpose of peer review. As an individual reviewing the activities of her medical staff, Ms. Hayden also qualifies as a “review committee.”

As the Superior Court has said, hospitals cannot create protection for a document simply by sending it to a peer review committee. Dodson v. Deleo, 872 A.2d 1237, 1244 (Pa. Super. 2005). However, “documents generated by a peer review committee specifically for the use in the peer review process are not discoverable simply because some of the information contained therein is available elsewhere.” Id. Because the “root cause analysis” was created for the express purpose of evaluation by a professional health care provider, it is protected by the PRPA. The documents used to create the report, however, are discoverable.

Byms contends that PACS waived its peer review protections because Mary Hayden sent a letter to Maureen Byms which disclosed the report’s conclusion that there was no failure to meet the appropriate standard of care in Ms. Byms’ case. A privilege may be waived if a party to the confidential information disclosed the information to a third party. See Sprague v. Walter, 656 A.2d 890 (Pa. Super. 1995); Rosser v. Feldman, 38 Pa. D. & C.4th 353, 355 (Pa.Com.Pl. 1998). Although the letter disclosed that conclusion, it did not disclose the nature of the investigation or facts determined in the investigation. I find no waiver of confidentiality of the investigation and factual findings in the peer review process. Because I have found the “root cause analysis” is protected by the PRPA, it is unnecessary to determine if it is protected under the work product doctrine. Plaintiffs’ request for production of this document will be denied.

Byms further requests the defendants turn over a copy of the complaint she filed with the joint commission. As Byms already has a copy of this report and only seeks PASC’s copy to determine when PASC came into possession of the report, Byms is directed to ascertain that information by deposition.

Accordingly, Byrns’ motion to dismiss the defendants’ objections to plaintiffs’ specific request for production of documents and to compel discovery will be granted in part and denied in part.

II. OBJECTIONS TO PLAINTIFF’S REQUESTS FOR PRODUCTION AND INTERROGATORIES FROM UROLOGY ASSOCIATES AND DR. MOYER

Co-defendants Urology Associates and Moyer have objected to Byrns’ request for production of document nos. 1,2,6,9 and 16, as well as Byrns’ interrogatories nos. 8,13, 29, 30,31, 38, 39,40,41, 53, 54, 55 and 63. They contend that Byrns is seeking documents and information that do not exist, have already been provided, or are protected by the attorney-client privilege and work-product doctrine.

Document request no. 1 asks for witness statements relating to the incident, while document request no. 2 asks for statements of any of the parties herein. The defendants contend that no such statements or a written record of such statements exist. Therefore, the defendants’ objection to these requests is denied as moot, other than the results obtained from the court’s in camera review of the privilege log as discussed infra.

Document request no. 2 requests statements by the parties. Defendants haVe advised that they do not have any statements by parties, so this request is therefore moot as well, subject to an obligation to disclose later-discovered materials.

Document request no. 6 specifically requests “All documents relating to the investigation of the occurrence prepared on behalf of any party herein, including all notes, file memoranda, or any other document prepared by any representative acting on behalf of any of the parties herein.” The defendants contend the information sought by this request is protected by the attorney-client privilege, the work product doctrine and/or the PRPA. The court directed defendants to produce a privilege log, which they have done. Having reviewed the documents listed, the court rules as follows:

001A transmittal letter from Dr. Moyer to his attorney. The objection will be sustained as this document is covered by the attorney-client privilege.
002-003 A fax cover sheet dated July 29, 2008 to Len Leer of PMSLIC, which appears to contain no relevant information. The objection will be sustained.
004 Letter from Len Leer to Dr. Moyer on July 30, 2008. This objection will be denied and the document shall be produced.
005 Hand-written memo dated July 29, 2008 from Dr. Moyer. This objection will be denied and the document shall be produced.
006 Memo to file from Dr. Moyer. This objection will be denied and the document shall be produced.
007 Memo to file from Dr. Moyer. This objection will be denied and the document will be produced.
008 Memo to file from Dr. Moyer. This objection will be denied and the document will be produced.

Document request no. 9 asks for any documents that weigh the relative fault of the plaintiffs and defendants in this matter. The defendants contend that, notwithstanding implications of the attorney-client privilege, work product doctrine and PRPA, their investigation into this matter is still ongoing and they are unaware of the existence of any such documents. Therefore, the defendants’ objection to these requests is sustained, subject to the defendant’s continuing obligation to supplement responses pursuant to Pa.R.C.P. 4007.4

Document request no. 16 asks for “all correspondence sent to or received from any insurance companies [sic] in regard to the plaintiff, Maureen Byrns.” This request has been addressed by the discussion of Request No. 6.

Defendants have also objected to some of plaintiffs’ interrogatories. Interrogatory No. 8 asks whether the defendants have obtained statements from any person regarding this matter. The defendants contend they are unaware of the existence of any oral or written statements, as “statements” is defined by Pa.R.C.P. 4003.4, other than the documents addressed above. This question has been answered.

Interrogatory no. 13 asks whether the defendants have received any information that states the defendants were negligent in attending to and caring for Byrns. The defendants contend they have received no such information. Accordingly, the defendants’ objection to this interrogatory is sustained.

Interrogatory no. 29 asks for the names and addresses of anyone who has knowledge of facts concerning Byrns’ procedure. The defendants contend that all of the information sought in this interrogatory is available in Byrns’ medical records, which should be in Byrns’ possession. Therefore, the plaintiffs’ request for additional information is denied.

Interrogatoiy no. 30 asks a yes or no question: “Have you, or anyone on your behalf, conducted any investigations of the medical treatment which is the subject matter of this action?” The defendants have answered in the affirmative, and noted that the investigation is ongoing. Accordingly, the plaintiffs’ request for additional information is denied.

Interrogatoiy no. 31 follows directly from No. 30 in the event of an affirmative response, requesting the names and addresses of those who conducted the investigation, the dates of the investigation, the dates of any reports based on those investigations and a request to produce those reports. The defendants contend that Dr. Moyer did not perform any investigation into the matter, other than continuing to provide care for Byrns as she dealt with her symptoms related to her kidney stones following her lithotripsy. The defendants have withheld some reports as discussed above, which have already been addressed.

Interrogatories nos. 38, 39 and 40 are related inquiries that probe into possible defenses the defendants might raise. No. 38 asks the defendants to set forth any facts supporting the basis of their denial, if they are denying negligence. No.'39 asks if the defendants claim whether Byrns was contributorily or comparatively negligent and/ or assumed the risk, while no. 40 follows up on no. 39 and asks the defendants to state their contentions for claiming Byrns was at least partially at fault. The defendants satisfied the query of no. 38 in their answer to Byrns’ complaint, denying all of the material allegations of negligence set forth in the complaint. The defendants further provided the answers to interrogatories nos. 39 and 40 in their new matter response to the plaintiff’s complaint, raising the affirmative defenses of assumption of the risk, contributory negligence and comparative negligence. Accordingly, the plaintiffs’ request for additional answers is denied.

Interrogatories nos. 41, 53, 54 and 55 seek specific information regarding the performance of Byrns’ lithotripsy. No. 41 asks for the defendants to identify all persons who were present during Byrns’ lithotripsy, while no. 53 seeks an explanation of how Byrns’ rib fractures occurred. No. 54 asks the defendants whether they acknowledge the rib fractures occurred during the lithotripsy, and no. 55 asks the defendants whether they deny these fractures occurred during the performance of the lithotripsy. The defendants’ answers and brief note that Dr. Moyer was not present for the lithotripsy and that “the medical records indicate that the rib fractures occurred sometime after the lithotripsy was administered.” (Defendant’s brief, page 18). Defendant’s answer refers to plaintiff’s medical records. Plaintiffs’ request for additional information is denied.

III. OBJECTIONS TO INTERROGATORY RESPONSES ON GROUNDS THEY ARE INCOMPLETE

While not offering any reasons why or supporting case law, Byrns maintains that the responses of Dr. Moyer and Urology Associates to interrogatories nos. 47, 48, 49, 50, 57 and 58 are incomplete and must be supplemented. Nos. 47 and 48 ask the defendants to identify the equipment and manufacturer of the equipment used during Byrns’ lithotripsy. As PASC owns, operates and maintains the equipment used, it was appropriate for Dr. Moyer and Urology Associates to instruct the plaintiff to direct any questions about the equipment to PASC, the third defendant in this case. As the owner and operator of the equipment, PASC is in the best position to answer any questions relating to it. Accordingly, the responses of Dr. Moyer and Urology Associates to interrogatories nos. 47 and 48 were complete and need not be supplemented.

Interrogatories nos. 49 and 50 ask the defendants if it is their contention that the equipment used during Byrns’ lithotripsy was defective or malfunctioned, and if so, to detail the basis of the claim. At the time the defendants responded, they were still in the midst of their investigation and were unable to answer definitively. Perhaps without intending to, the defendants have already provided a more complete answer in their amended response in opposition to the plaintiff’s motion to dismiss the objections of the defendants. Based on their continued investigations into the matter, the defendants have determined they have no information that would lend itself to the idea that equipment malfunction led to Byrns’ rib fractures. That in and of itself is a complete response to interrogatories nos. 49 and 50.

Interrogatories nos. 57 and 58 ask the defendants whether Byrns was warned, prior to the procedure, that fractured ribs were a risk of lithotripsy, and if so, who warned her, the date she was warned and the substance of the warning. While seemingly straightforward questions, the defendants were slightly evasive in their response: “All professionally-indicated disclosures were made to plaintiff. She gave her informed consent to the procedure.” The defendants contend that rib fractures are not a known risk associated with lithotripsy, which, if true, should have elicited a response related to that fact, rather than a vague generalization. Accordingly, the defendants are ordered to provide a more complete response to interrogatories nos. 57 and 58, pursuant to Pa.R.C.P. 4006(a)(2).

An order will follow.

ORDER

And now, November 12, 2010, upon consideration of the parties’ briefs and arguments on plaintiffs’ motions to compel discovery, it is ordered as follows:

1. Plaintiffs’ motion to compel discovery from PASC is granted in part and denied in part. PASC is directed to produce the reports of Ms. Hayden at identified as nos. 11,12 and 91 in the privilege log. Plaintiffs’ request for production of the root cause analysis report at nos. 13 and 14 of the privilege log is denied.
2. Byrns’ request that PASC turn over a copy of the complaint Maureen Byrns filed with the joint commission is denied.
3. Byrns’ request for production of the following documents by Urology Associates and Dr. Moyer is granted and these documents shall be produced:
004 Letter from Len Leer to Dr. Moyer on July 30, 2008.
005 Hand-written memo dated July 29, 2008 from Dr. Moyer.
006 Memo to file from Dr. Moyer.
007 Memo to file from Dr. Moyer.
4. Defendants Urology Associates and Dr. Moyer are ordered to provide a more complete response to plaintiffs’ interrogatories nos. 57 and 58.
5. All other requests for production of discovery sought by plaintiffs is denied.


source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    Grugnale v. Tymosky

      Nicholas Pick, for plaintiffs.

      Christopher A. Piazza, for defendants Tymosky and Matczak.

      Lynanne B. Wescott, for defendants Hearth-N-Home Technologies Inc. and HON Industries Inc.

      John P Kent and Anne Mañero, for defendant S&T Coombe Inc.

      William E. Schaefer, for defendant SIT Controls USA Inc.
    October 10, 2007
   MINORA, J.,

INTRODUCTION

Before the court is the motion for summary judgment filed by defendant S&T Coombe Inc. and joined by co-defendants Hearth-N-Home Technologies Inc., HON Industries Inc. and SIT Controls USA Inc. This is a products liability action brought by the plaintiffs, Michael and Jackie Grugnale. The relevant facts follow.

Plaintiff Michael Grugnale sustained injuries working in the course and scope of his employment with Suburban Propane while hooking up the propane gas tanks and lighting the stove/fireplace at the home of defendants George Tymosky and Annette Matczak. The stove in question was identified as the Quadra-fire “Topaz” model gas fireplace/stove. Plaintiff avers that he sustained injuries as a result of this accident including cuts to his face and eyes, as well as impaired vision.

Several defendants are identified and described in the plaintiffs’ complaint. They are defendants George Tymosky and Annette Matczak, residents of308 Sky Drive, Lake Harmony, Pennsylvania and 122 Shewell Drive, Doyelstown, Pennsylvania. Defendant Matczak is listed as the owner of the property at 308 Sky Drive, Lake Harmony, the location of the defective product at the time of injury.

Defendants Hearth-N-Home Technologies Inc. and HON Industries Inc., the stove manufacturer, are business entities and/or corporations organized and existing under the laws of the state of Iowa, with a registered office at 414 E. Third Street, P.O. Box 1109, Muscatine, Iowa.

Defendant S&T Coombe Inc., distributor of the stove, is a business entity and/or corporation organized under the laws of the Commonwealth of Pennsylvania, with a registered office located at Route 940, P.O. Box 599, Blakeslee, Pennsylvania.

Defendant Advantage Contracting, the stove installer, is a business entity or corporation organized under the laws of the Commonwealth of Pennsylvania with a registered location at P.O. Box 71, Delaware Water Gap, Pennsylvania.

Defendant SIT Controls USA Inc. is a business entity and/or corporation organized and existing under the laws of the state of North Carolina with a registered office located at 900 Center Park Drive, Suite J, Charlotte, North Carolina.

Defendant homeowners Tymosky and Matczak allegedly purchased the subject stove from S&T Coombe on September 28, 2003. S&T Coombe converted the stove from gas to propane. The events that occurred on the morning of the incident giving rise to the current action were provided as follows. Plaintiff Michael Grugnale was called to the residence of Defendant Tymsoky and Defendant Matczak on December 24, 2003 to address a problem with the fireplace/stove. Plaintiff Michael Grugnale and his co-worker went to defendant Matczak’s residence to install two propane tanks, and connect them to the residence. Defendant Tymosky allegedly advised plaintiff and his co-worker where the tanks should be placed. Defendant Tymosky showed plaintiff a “feed line” that defendant Tymosky installed. The feed line ran to the other side of the house via the front lawn. Plaintiff states that he and his coworker connected the propane tanks together and installed a regulator where the propane left the tanks. After the propane tanks were connected and the regulators installed, plaintiff alleges that everything was pressure-checked and there were no problems.

Plaintiff and his co-worker had determined the feed line that defendant Tymosky installed was too small to carry the necessary gas load to the stove, due to the size of the piping and the length of the run. They decided to install a second stage regulator on the left side of the residence just before piping entered the residence. Mr. Grugnale cut the copper tubing and installed the second stage regulator with all appropriate pressure tests being performed. At that point, as plaintiff alleges, all of the appropriate testing had been done with the tanks, showing no problems. Plaintiff states the pressures were recorded and all were within normal limits.

Plaintiff then entered the residence and requested the stove’s owners’ manual from defendant Tymosky. According to the plaintiff, defendant Tymosky stated that the owners’ manual was at his other residence (located in the Doylestown area). Plaintiff alleged that the stove was connected to the gas line, and installation/connection was done by defendant Advantage Contracting.

Plaintiff Grugnale then attempted to light the stove by depressing the pilot button and hitting the ignitor. Plaintiff stated that according to his recollection, he hit the ignitor two or three times in an estimated three- to five-second time period. Plaintiff stated that he heard a clicking but was not sure whether the stove was lighting. Thereafter, he leaned forward to determine whether the ignitor was creating a spark, he again struck the ignitor and the stove exploded. Plaintiff stated that his injuries were the result of the explosion and flying glass, other equipment and debris that flew through the room.

Plaintiffs’ complaint set forth the following counts:

“First cause of action:
“Count I — Breach of express warranty (Plaintiff Michael Grugnale v. George Tymosky, Annette Matczak, Hearth-N-Home Technologies Inc. and HON Industries Inc., S&T Coombe Inc., Advantage Contracting Inc., and SIT Controls USA Inc.)
“Count II — Breach of express warranty (Plaintiff Michael Grugnale v. George Tymosky, Annette Matczak, Hearth-N-Home Technologies Inc. and HON Industries Inc., S&T Coombe Inc., Advantage Contracting Inc., and SIT Controls USA Inc.)
“Second cause of action:
“Count I — Breach of implied warranties, merchantability and fitness for a particular purpose (Plaintiff Michael Grugnale v. George Tymosky, Annette Matczak, Hearth-N-Home Technologies Inc. and HON Industries Inc., S&T Coombe Inc., Advantage Contracting Inc., and SIT Controls USA Inc.)
“Count II — Breach of implied warranties, merchantability and fitness for a particular purpose (Plaintiff Jackie Grugnale v. George Tymosky, Annette Matczak, Hearth-N-Home Technologies Inc. and HON Industries Inc., S&T Coombe Inc., Advantage Contracting Inc., and SIT Controls USA Inc.)
“Third cause of action:
“Count I — Breach of implied warranties, fitness for a particular purpose (Plaintiff Michael Grugnale v. George Tymosky, Annette Matczak, Hearth-N-Home Technologies Inc. and HON Industries Inc., S&T Coombe Inc., Advantage Contracting Inc., and SIT Controls USA Inc.)
“Count II — Breach of implied warranties, fitness for a particular purpose (Plaintiff Jackie Grugnale v. George Tymosky, Annette Matczak, Hearth-N-Home Technologies Inc. and HON Industries Inc., S&T Coombe Inc., Advantage Contracting Inc., and SIT Controls USA Inc.)
“Fourth cause of action:
“Count I — Negligence (Plaintiff Michael Grugnale v. George Tymosky, Annette Matczak, Hearth-N-Home Technologies Inc. and HON Industries Inc., S&T Coombe Inc., Advantage Contracting Inc., and SIT Controls USA Inc.)
“Count II — Negligence (Plaintiff Jackie Grugnale v. George Tymosky, Annette Matczak, Hearth-N-Home Technologies Inc. and HON Industries Inc., S&T Coombe Inc., Advantage Contracting Inc., and SIT Controls USA Inc.)
“Fifth cause of action:
“Count I — Products liability, 402A strict liability (Plaintiff Michael Grugnale v. George Tymosky, Annette Matczak, Hearth-N-Home Technologies Inc. and HON Industries Inc., S&T Coombe Inc., Advantage Contracting Inc., and SIT Controls USA Inc.)
“Count II — Products liability, 402A strict liability (Plaintiff Jackie Grugnale v. George Tymosky, Annette Matczak, Hearth-N-Home Technologies Inc. and HON Industries Inc., S&T Coombe Inc., Advantage Contracting Inc., and SIT Controls USA Inc.)”

Subsequent pleadings followed. On January 30,2007, Defendant S&T Coombe Inc. filed its motion for summary judgment with the Court of Common Pleas of Lackawanna County and on March 5, 2007, its corresponding memorandum of law in support of the motion for summary judgment. On April 20,2007, co-defendants Hearth-N-Home Technologies Inc. and HON Industries Inc. filed a joinder to S&T Coombe’s motion for summary judgment. On April 23,2007, defendant SIT Controls USA Inc. filed an answer to co-defendant S&T Coombe’s motion for summary judgment whereby SIT Controls also joined S&T Coombe’s motion for summary judgment. Plaintiffs filed a memorandum of law on April 23,2007. Defendant S&T Coombe filed a reply to plaintiffs’ memorandum in opposition to its motion for summary judgment on May 3, 2007. Plaintiffs filed an additional reply on May 9, 2007. Defendant S&T Coombe filed a response to the plaintiffs’ reply on May 17,2007. Also on May 17,2007, defendant SIT Controls filed a memorandum of law in response to plaintiffs’ reply brief. On May 18,2007, Hearth-N-Home and HON Industries filed a reply to plaintiffs’ reply to defendants’ summary judgment motions. In the midst of the exhaustive (and at one point, seemingly infinite) briefing on these motions by the parties, this court entertained oral argument on S&T Coombe’s motion for summary judgment on April 24, 2007. This matter is now ripe for disposition.

MOTIONS FOR SUMMARY JUDGMENT-ARGUMENTS

Defendants S&T Coombe and SIT Controls, who have filed substantial briefs on their positions, argue that plaintiffs were required to file expert opinions or evidence to address the specific problem with the stove that caused the accident. These defendants rely on the theory that knowledge of this product is beyond the understanding of an ordinary layman; thus, plaintiffs were required to submit expert testimony to articulate that either the product was defective, or the stove was improperly converted from gas to propane. Plaintiffs’ failure to produce expert evidence concerning the accident and subsequent injuries pursuant to the discovery deadline issued by order of Special Trial Master Campagna is a failure on the plaintiffs’ part to sustain their burden of establishing a cause of action against defendants.

More specifically, defendant S&T Coombe argues that it is entitled to summary judgment on two grounds: (a) there is an absence of expert evidence proving a product defect, and (b) there is an absence of expert evidence proving the gas stove was improperly converted from gas to propane. See memorandum of law in support of defendant S&T Coombe’s motion for summary judgment at 5. S&T Coombe’s basis for arguing that plaintiffs failed to submit expert reports relies on the July 6, 2006 order of Special Trial Master Campagna, setting forth several discovery deadlines specifically, “Plaintiffs shall serve their expert reports by November 1, 2006.”

Defendant S&T Coombe’s motion for summary judgment argues, “To prevail in a strict products liability action, plaintiffs are required to prove the product at issue was defective, that the defect existed at the time it left the manufacturer’s control and that the defect was the proximate cause of the injury.” See motion for summary judgment of defendant S&T Coombe at ¶5. (citations omitted) Further, defendant S&T Coombe argued that “Plaintiffs are obligated to produce expert evidence to prove a product defect in this case as the subject matter involves complex engineering principles which are beyond the knowledge of a layman,” and “Plaintiffs are obligated to produce expert evidence to prove that the stove was improperly converted from gas to propane, as the conversion of a stove also involves complex engineering principles beyond the knowledge of a layman.” See motion for summary judgment of defendant S&T Coombe at ¶6 and ¶7, respectively, (citations omitted)

Plaintiffs argue that strict liability applies to their case because the stove was manufactured and placed into the stream of commerce by the defendants. Plaintiffs argued that an inspection of the stove following the accident revealed that the stove was defective. See plaintiffs’ memorandum of law in response to S&T Coombe’s motion for summary judgment at 9. Plaintiffs further argue that defendants failed to test the stove and its components prior to the stove being released into the stream of commerce. Plaintiffs set forth two possible causes for the accident: “First, one of the defendants applied excessive pressure to the valve, thereby damaging the same, or second, the valve was manufactured with the main seat out of place.” See plaintiffs’ memorandum of law at 10. Plaintiffs also note the malfunction theory of products liability enables a plaintiff to pursue a cause of action for products liability based on malfunction without identifying the specific defect. Id.

In their second reply brief, filed on May 9, 2007, plaintiffs explicitly assert their intention to proceed with their cause of action under the malfunction theory of products liability. See plaintiffs’ second reply brief, at 3-4. Plaintiffs state, “the circumstantial evidence of this case prove [sic] a defective product under the ‘malfunction theory’ . . . Common sense dictates that a stove is not to explode when it is attempted to be used for its intended purpose. There is no need for expert testimony concerning the same.” Id. at 8.

SUMMARY JUDGMENT STANDARD

The standard for evaluating motions for summary judgment is provided in Pa.R.C.P. 1035.2:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or export report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

As stated recently by the Pennsylvania Supreme Court in Toy v. Metropolitan Life Insurance Co., 928 A.2d 186, 194-95 (Pa. 2007):

“The Pennsylvania Rules of Civil Procedure that govern summary judgment instruct in relevant part, that the court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. Pa.R.C.P. 1035.2(1). Under the rules, a motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. Note to Pa.R.C.P. 1035.2. (footnote omitted) In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Jones v. SEPTA, 565 Pa. 211, [216], 772 A.2d 435, 438 (2001). Finally, the court may grant summary judgment only where the right to such a judgment is clear and free from doubt. Marks v. Tasman, 527 Pa. 132, 134-35, 589 A.2d 205, 206 (1991).” (emphasis added)

In light of the standard for evaluating motions for summary judgment and considering the parties’ arguments, we now examine case law addressing the malfunction theory of products liability and the responsibility in establishing the burden of proof on the party asserting the cause of action to determine whether summary judgment is appropriate here.

In Rogers v. Johnson & Johnson Products Incorporated, 523 Pa. 176, 565 A.2d 751 (1989), following a jury verdict for the plaintiff, the Supreme Court of Pennsylvania was presented with an appeal from the decision of the Superior Court granting a new trial when the plaintiff submitted the malfunction theory of products liability to the jury while defendant manufacturer presented evidence of negligence. The plaintiff was allegedly injured after doctors treating the plaintiff for a broken leg applied plaster to set the leg. The plaster was designed to operate exothermically. The plaintiff complained of a burning sensation to his leg; he was advised it was normal to experience heat with this type of plaster. When the splint was removed, second and third degree bums were discovered on the plaintiff’s leg. The court explained background information on strict products liability prior to considering the malfunction theory:

“Since Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), this court has recognized a plaintiff’s right to pursue an action in strict liability against the manufacturer of a product pursuant to section 402A of the Restatement (Second) of Torts, (footnote omitted) A plaintiff presents a prima facie case of strict liability by establishing that the product was defective and that the product caused the plaintiff’s injury. Sherk v. Daisy-Heddon, 498 Pa. 594, 598, 450 A.2d 615, 617 (1982). In most instances the plaintiff will produce direct evidence of the product’s defective condition. In some instances, however, the plaintiff may not be able to prove the precise nature of the defect in which case reliance may be had on the ‘malfunction ’ theory of product liability. This theory encompasses nothing more than circumstantial evidence of product malfunction. See MacDougall, 214 Pa. Super, at 391, 257 A.2d at 680. It permits a plaintiff to prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable, secondary causes for the malfunction. See Thompson, 325 Pa. Super. at 394, 473 A.2d at 125; MacDougall, 214 Pa. Super. at 391, 257 A.2d at 680. It thereby relieves the plaintiff from demonstrating precisely the defect yet it permits the trier-of-fact to infer one existed from evidence of the malfunction, of absence of abnormal use and of the absence of reasonable, secondary causes. See Thompson, 325 Pa. Super. at 394, 473 A.2d at 125; MacDougall, 214 Pa. Super. at 391, 257 A.2d at 680. We now accept this evidentiary approach as appropriate in ascertaining the existence of a defect in the manufacturing process.” Id. at 181-82, 565 A.2d at 754. (emphasis added)

The Pennsylvania Supreme Court determined that a plaintiff may proceed on a malfunction theory of products liability even if a defendant presents evidence of a secondary cause, thereby eroding the plaintiff’s theory of product malfunction. Based on the language, however, it seems that the court intended to limit the use of the malfunction theory to those factual scenarios where plaintiffs are not capable of identifying the nature of the defect. The court’s language does not indicate how thoroughly a plaintiff must exhaust other possible causes of the accident, i. e., whether a plaintiff must retain an expert to make an examination and eliminate other possible causes of the accident, a point also noted in the dissent.

Dansak v. Cameron Coca-Cola Bottling Co., 703 A.2d 489 (Pa. Super. 1997), appeal denied, 556 Pa. 676, 727 A.2d 131 (1998) is another case in which a plaintiff proceeded in part on the malfunction theory of products liability. In Dansak, the plaintiff convenience store worker was injured while stocking the store’s coolers with drinks in glass bottles that she was removing from their six-pack containers. The plaintiff cut her hand on one of the glass bottles when the bottom of the bottle stuck to the six-pack container and broke from the rest of the bottle. The six-pack container, including the bottle that allegedly caused the plaintiff’s injuries, was thrown away by the store manager. The Superior Court was asked to consider the trial court’s decision that granted defendant’s motion for summary judgment. The court addressed the burden on a plaintiff when pursuing a claim under the malfunction theory of products liability:

“When proceeding on a malfunction theory, the plaintiff may ‘present a case in chief evidencing the occurrence of a malfunction and eliminating abnormal use or reasonable, secondary causes for the malfunction.’ (citation omitted) From this circumstantial evidence, a jury may be permitted to infer that the product was defective at the time of sale....
“Although proof of a specific defect is not essential to establish liability under this theory, the plaintiff cannot depend upon conjecture or guesswork. ‘The mere fact that an accident happens, even in this enlightened age, does not take the injured plaintiff to the jury.’ (citations omitted).
“The malfunction theory, thus, does not relieve the burden of establishing a defect. However, ‘ [t]he malfunction itself is circumstantial evidence of a defective condition.’ (citation omitted)” Dansak, 703 A.2d at 495-96 (citing Ducko v. Chrysler Motors Corp., 433 Pa. Super. 47, 49-53, 639 A.2d 1204, 1205-1206 (1994)).

Recently, the Superior Court again examined the malfunction theory of products liability in Barnish v. KWI Building Co., 916 A.2d 642 (Pa. Super. 2007). In Barnish, employees working at a particleboard manufacturing facility were injured after an explosion at the factory. The plaintiffs pursued a cause of action against defendant GreCon, manufacturer of the heat sensors that were installed at the particleboard facility. The heat sensors were discarded after the accident causing the plaintiffs’ injuries; plaintiffs pursued their case against the defendant under the malfunction theory of products liability. It was established that the heat sensors worked properly for approximately 10 years, and “the trial court concluded that a reasonable jury could not conclude that the sensors were defective when they left GreCon’s control for purposes of establishing a product liability claim.” Id. at 644. Plaintiffs appealed, and the Pennsylvania Superior Court affirmed. The court explained:

“Plaintiffs/appellants established the occurrence of a malfunction for the purposes of the first prong of a prima facie case under the malfunction theory of product liability. However, it is also essential that they eliminate evidence of reasonable secondary causes of the malfunction or abnormal use that appears in their case in chief. Although a plaintiff proceeding under the malfunction theory ‘[need not] negate every theoretically conceivable secondary cause for the malfunction^] ’ the plaintiff cannot establish a pima facie case if the plaintiff fails to negate evidence of other reasonable, secondary causes that could account for the accident or evidence of abnormal use that the plaintiff introduces in its own case in chief, i.e., based upon its own proof, (citation omitted) When it is the defendant who hypothesizes or presents evidence of reasonable secondary causes, summary judgment is not warranted, (citation omitted)” Id. at 646 (emphasis in original) (citing Dansak v. Cameron Coca-Cola Bottling Co., 703 A.2d 489).

In Van Horn v. Reinhart Flynn Inc., 62 D.&C.4th 358 (Carbon Cty. 2003), the plaintiff was injured while test-driving a used car as a prospective purchaser. The cruise control in the vehicle failed to disengage after the plaintiff attempted to apply the car’s brakes. The defendant moved for summary judgment. The court explained the point of contention between the parties:

“Plaintiffs have neither secured an expert nor presented an expert’s report with respect to their products liability claims against Reinhart [defendant seller of the used vehicle]. In the absence of expert opinion testimony, Reinhart contends plaintiffs are unable and have failed to present a prima facie case of liability. In ruling on Reinhart’s motion for summary judgment on this basis, we must distinguish between the nature of plaintiffs’ claims for strict liability and negligence.” Id. at 366.

The court found summary judgment was not appropriate even though defendant had suggested possible secondary causes of the accident. (“Under the circumstances, at this stage of the proceedings we believe plaintiffs’ evidence of a claim for strict products liability is sufficient to withstand defendant’s motion for summary judgment.” Id. at 371.)

We find the instant case factually and procedurally similar to Van Horn. Certainly, an expert report would be helpful in providing guidance on the very technical aspects of stove/fireplace operations, gas to propane conversions, or valve operations. However, it is not the position of the court to guide parties on trial strategy. Plaintiffs are entitled to choose and pursue their own theories of trial strategy, however seemingly contradictory their arguments may be. We note that initially, plaintiffs seemed to blame each defendant in its respective capacity of a failure to test the product. Also, in their first memorandum of law in response to the motions for summary judgment, plaintiffs set forth an inspection of the stove following the accident indicated that the stove was defective. In just three weeks time, however, plaintiffs firmly argued that the malfunction theory of products liability definitely applied to this case which allows the plaintiffs to proceed with a products liability action without pinpointing the exact cause of the accident.

The motion for summary judgment of defendant S&T Coombe, in which co-defendants Hearth-N-Home and HON Industries, and SIT Controls Inc. also join is granted in part and denied in part. An appropriate order follows.

ORDER

And now, October 10, 2007, the motion for summary judgment filed by S&T Coombe, and joined by co-defendants Hearth-N-Home Technologies Inc., HON Industries Inc. and SIT Controls USA Inc. is granted as to plaintiffs’ cause of action IV, negligence. Plaintiffs’ cause of action V, products liability 402A strict liability is limited to plaintiffs’ claim based on the malfunction theory of products liability.

      . Plaintiffs’ complaint identified SIT Controls USA Inc. as the manufacturer of the gas control valve in the subject stove. Defendant SIT Controls USA Inc. identified itself as the distributor of the Nova pressure regulator. See SIT Controls answer to defendant S&T Coombe’s motion for summary judgment at ¶2. As plaintiffs have indicated in their reply brief filed on May 9, 2007, plaintiffs and defendant SIT Controls disagree on whether SIT was manufacturer or distributor of the valve.

      . Co-defendants Tymosky and Matczak filed a separate motion for summary judgment and requested oral argument on April 23, 2007, which is not yet ripe because oral argument has not occurred.

      . A reading of plaintiffs’first reply brief of April 23,2007 and their second reply brief of May 9, 2007 yield an interesting and somewhat puzzling comparison. In the initial reply brief, plaintiffs seem to mention the “malfunction theory” as somewhat of an afterthought, following their extensive discussion of the inspection of the stove and the alleged defective components that were discovered upon this examination by an employee of SIT Controls. In their second reply brief, plaintiffs seem to rely entirely on the malfunction theoiy.

      . The malfunction theory of products liability was recently examined by Arthur L. Bugay, Esq. in “Product Liability Developments Under the New Pennsylvania Evidence Rules and Recent Litigation,” 77 Pa. Bar Quarterly 1, 16 n.86 (January 2006). The author described products liability cases concerning the malfunction theory:
      “Ultimately, such circumstantial evidence cases depend upon the plaintiff’s ability to eliminate reasonable secondary causes of the accident. Where this is done, the fact-finder can reasonably infer the product defect — by malfunction or manufacture — was the cause of the plaintiff’s accident or injuries____For this reason, where one proceeds with a theory of negligence against one party, it may be logically inconsistent to argue malfunction.” (citations omitted)

      . As Justice Flaherty stated in his dissenting opinion:
      “The defendant, however, may put in evidence that the malfunction was caused by secondary causes separate and apart from any alleged defect in the product. If the defendant produces such evidence, the plaintiif then must negate it, for the survival of his cause of action depends upon his establishing that nothing outside ofthe product itself caused the malfunction, since if a ‘secondary cause’ created the malfunction, the product itself was not defective and the products liability claim would fail. In other words, a malfunction-theory plaintiff must negate evidence that secondary causes were responsible for the malfunction.
      “The question which this raises, however, is what a malfunction-theory plaintiff must do in order to negate such secondary cause evidence.” Id. at 186, 565 A.2d at 756. (italics in original, second emphasis added)

      . The court further noted, “No party to the litigation was responsible for the bottle’s disappearance, and no party ever had the opportunity to inspect the product before it was destroyed.” Id. at 491.

      . One component of the court’s analysis concerned the spoliation of the evidence doctrine, further discussion on this element of the court’s analysis is omitted here because it is inapplicable to the case sub judice.


author: GRINE, J.,

text:
    Crary v. Centre County Historical Society

      David D. Engle, for plaintiff.

      Jeffrey M. Bower and Brian K. Marshall, for defendants.
    December 11, 2007
   GRINE, J.,

Presently before the court is a motion for judgment on the pleadings brought by Centre County Historical Society and Wooded Hills, defendants. Also before the court is a motion for judgment on the pleadings brought by Susan F. Crary, plaintiff. On September 26, 2007, this court issued a rule upon plaintiff to show why defendants’ motion for judgment on the pleadings should not be granted, and set a hearing for October 12, 2007. All parties submitted briefs prior to October 11, 2007 regarding their motions for judgment on the pleadings. Due to the unavailability of the assigned judge, the hearing was transferred to the Honorable Judge Bradley Lunsford for the sole purpose of deciding the pending motions for judgment on the pleadings. Judge Lunsford denied all outstanding motion for judgment on the pleadings without holding a hearing. Defendants filed motions for reconsideration. This court granted their motions for reconsideration, and heard arguments on the motions for judgment on the pleadings on November 13, 2007. The court has now made its decision and grants defendants’ motion for judgment on the pleadings.

FINDINGS OF FACT

(1) On or about March 8, 2004, defendant Wooded Hills purchased a 22.3 acre tract of land in Patton Township, Centre County, Pennsylvania from Anna Neff.

(2) The property that Wooded Hills purchased adjoins a small parcel of real estate that contains the Boogersburg Schoolhouse.

(3) Plaintiff purchased the Boogersburg School parcel (BSP) from Sybil Grucci by deed dated April 12, 2001.

(4) Plaintiff made improvements to the property and conveyed the BSP to defendant Centre County Historical Society (CCHS) by deed dated February 2, 2004.

(5) The deed conveying the property to defendant CCHS included a restriction which stated: “Grantee, its successors and assigns, shall not transfer, sell, or permit the use of an easement or right-of-way on the land, or a direct sale of the land to a third party so as to reduce the square footage of the lot.”

(6) After the purchase of the 22.3 acre parcel, defendant Wooded Hills began the subdivision development process in Patton Township, Centre County, Pennsylvania.

(7) The process included several meetings, and plaintiff appeared at the meetings through counsel and objected to the development plan.

(8) The Patton Township. Board of Supervisors ultimately approved the Wooded Hills subdivision plan, subject to conditions.

(9) Two of the conditions that the Patton Township Board of Supervisors imposed were that one acre of the Wooded Hills parcel would be transferred to defendant CCHS and designated as a park, and that sufficient land would be transferred from the BSP to Wooded Hills to be added to the Wooded Hills parcel to create a 50’ wide strip of land to Fox Hill Road for ingress and egress from Wooded Hills.

(10) On June 6, 2006, defendant Wooded Hills conveyed the one-acre open space tract to defendant CCHS and, defendant CCHS simultaneously conveyed a small part of the BSP to Wooded Hills.

(11) The portion of the BSP that was conveyed to Wooded Hills was 1,530 square feet.

(12) On June 11,2007, approximately two years from the time that plaintiff knew the subdivision plans for Wooded Hills were passed, she commenced this civil action.

CONCLUSIONS OF LAW

(1) Pa. Rule of Civil Procedure 1034 states: “(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings. The court shall enter such judgment or order as shall be proper on the pleadings.”

(2) “Like all summary judgments entered without a trial judgment on the pleadings may be entered only in clear cases free from doubt where there are no issues of fact, and only where the cause is so clear that a trial would clearly be a fruitless exercise.” Otterson v. Jones, 456 Pa. Super. 388, 390, 690 A.2d 1166, 1166-67 (1997), quoting Beck v. Minestrella, 264 Pa. Super. 609, 611, 401 A.2d 762, 763 (1979).

(3) “In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents.” Booher v. Olczak, 797 A.2d 342, 345 (Pa. Super. 2002).

(4) “An easement is defined as: ‘[a]n interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose.’” Stanton v. Lackawanna Energy Ltd., 584 Pa. 550, 565 n.7, 886 A.2d 667, 676 n.7 (2005), quoting Black’s Law Dictionary, 8th ed. (2004), at 1108.

(5) “[R]estrictions on the use of land are not favored by the law because they are an interference with an owner’s free and full enjoyment of his property;... nothing will be deemed a violation of a restriction that is not in plain disregard of its express words; . . . there are no implied rights arising from a restriction which the courts will recognize; ... a restriction is not to be extended or enlarged by implication;... every restriction will be construed most strictly against the grantor and every doubt and ambiguity in its language resolved in favor of the owner.” Jones v. Park Lane for Convalescents Inc., 384 Pa. 268, 272, 120 A.2d 535, 537-38 (1956).

OPINION

In the deed transferring the BSP from plaintiff to defendant CCHS, the language stated “Grantee, its successors and assigns, shall not transfer, sell, or permit the use of an easement or right-of-way on the land, or a direct sale of the land to a third party so as to reduce the square footage of the lot.”

The plaintiff believes that the statement can be broken down into two clauses. The first clause, they claim reads “Grantee, its successors and assigns, shall not transfer, sell or permit the use of an easement or right-of way on the land.” Plaintiff believes that this clause prohibits the transaction which occurred between defendant CCHS and defendant Wooded Hills. However, plaintiff fails to make a case that shows defendant CCHS violated this first clause of the restriction. “An easement is defined as: ‘[a]n interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose.”’ Stanton v. Lackawanna Energy Ltd., 584 Pa. 550, 565 n.7, 886 A.2d 667, 676 n.7 (2005), quoting Black’s Law Dictionary, 8th ed. (2004), at 1108. Here, Wooded Hills has no interest in the land owned by CCHS, so there is no easement. On the contrary, Wooded Hills exchanged a piece of its land for a piece of land owned by CCHS. Therefore, no easement exists. Similarly, no right-of-way exists. A right-of-way is “[a] person’s legal right established by usage or by contract, to pass through grounds or property owned by another.” Black’s Law Dictionary 7th ed. (1999), at 1326; see In re Condemnation by County of Lancaster, 909 A.2d 913 (Pa. Commw. 2006). Again, since the land that Wooded Hills is using no longer belongs to CCHS, no right-of-way was transferred or permitted.

The second clause, the plaintiff contends reads “or a direct sale of the land to a third party so as to reduce the square footage of the lot.” With respect to the second clause, the transfer of the land which took place between defendant CCHS and defendant Wooded Hills did not reduce the square footage of the BSP. In fact, the BSP gained almost an acre from the transfer. “[Restrictions on the use of land are not favored by the law because they are an interference with an owner’s free and full enjoyment of his property; . . . nothing will be deemed a violation of a restriction that is not in plain disregard of its express words;...Jones v. Park Lane for Convalescents Inc., 384 Pa. 268, 272, 120 A.2d 535, 537 (1956). Here, there is no plain disregard for the express words used in the deed which transferred the land to defendant CCHS. Defendant Wooded Hills did gain a small tract of land from the BSP, but in return gave significantly more land to defendant CCHS to add to the BSP. Additionally, no direct sale of any land occurred in this transaction. The language of the deed specifically addresses restrictions on any direct sale of the BSP, but is silent as to transfers of exchanges of land. Additionally, the language addresses the reduction of the size of the parcel, but does not address a transaction in which the size of the parcel is increased.

Because the land transfer between defendant CCHS and defendant Wooded Hills is not in plain disregard of the express words of the restriction, and because there is no factual matter left to be resolved, the court grants the defendants’ motion for judgment on the pleadings.

ORDER

And now, December 11, 2007, after a hearing on the matter and a review of the parties ’ briefs, the court grants defendants’ motion for judgment on the pleadings. Plaintiff’s case at civil action no. 2007-2432 is dismissed with prejudice.


author: CEPPARULO, J.,

text:
    Commonwealth v. Gamelli

      LyndseyN. Koches, deputy district attorney, for Commonwealth.

      Michael J. Lacson, deputy public defender, for defendant.
    November 19, 2007
   CEPPARULO, J.,

I. INTRODUCTION

On September 7, 2007, Robert Gamelli (defendant) filed a notice of appeal from this court’s August 17,2007 judgment of sentence and determination that he met the criteria to be declared a sexually violent predator. We file this opinion in accordance with Pennsylvania Rule of Appellate Procedure 1925(a).

II. FACTUAL AND PROCEDURAL HISTORY

On March 5, 2007, defendant pled guilty to criminal attempt to commit rape of a child, criminal attempt to commit statutory sexual assault, involuntary deviate sexual intercourse with a person less than 13 years of age, criminal attempt to commit aggravated indecent assault of a person less than 13 years of age, indecent assault of a person less than 13 years of age, and corruption of a minor. The Honorable Kenneth G. Biehn accepted defendant’s guilty plea, but deferred sentencing until after an assessment by the State Sexual Offenders Assessment Board. On May 13, 2007, the board issued its report, recommending that defendant be classified as a sexually violent predator (SVP).

On August 17,2007, this court held a hearing to determine whether to classify defendant as a SVP. The assistant district attorney and defense counsel agreed to a stipulated SVP hearing, and this court admitted the notes of testimony from defendant’s guilty plea (March notes), the curriculum vitae (CV) for Dean Dickson, the Commonwealth’s expert, and the Sexual Offenders Assessment Board Report into evidence. N.T., 9/11/07, p. 4. Both the March notes and the board report recounted defendant’s extensive sexual abuse of his 12-year-old step-granddaughter, BG, which occurred on more than 20 separate occasions over an 11-month period from August 2005 until July 2006. Id. at 12-15. The abuse included reciprocal acts of oral sex, the fondling of the victim’s vaginal area, attempts at digital and penile penetration, and masturbation, with ejaculation, in front of the victim. Id. Defendant showed the victim pornography and attempted to take naked photos of the victim. Id. at 14. After each incident defendant gave the victim money. Id.

On one occasion, in August of 2005, the victim went to bed wearing pajamas, but at the request of defendant did not wear any underwear. Id. at 13. Later that night the victim awoke in defendant’s bed, naked. Id. Defendant climbed on top of the victim and performed oral sex on her. Id. He fondled her vaginal area and unsuccessfully attempted digital penetration. Id. Defendant masturbated in front of her, and asked if he could put his ejaculate into her mouth or on her genitals. Id. The victim was required to perform oral sex on defendant. Id. at 14.

Disturbingly, appellant told police that the victim allegedly instigated the sexual contact by entering his bedroom at night saying she was scared, taking off her own clothes, getting into his bed, and “riding him”. Id. He claimed the victim wanted him to rub her vaginal area. He also accused the victim of being manipulative and said that the victim knew what she was doing. Id., see also, board report at 6.

Defendant admitted having “urges” for the two years leading up to the instant abuse, following his wife’s death, and that he had similar “urges” approximately 22 years before when he sexually assaulted his stepdaughter SG. Id. at 15. Defendant’s assaults against SG began in the 1980s, when SG was 12, and lasted for approximately 10 years ending in the 1990s. Id. at 15-16. SG wrote a statement stating that the abuse started at age 12 with defendant touching her and surreptiously watching her in the shower. Thereafter, defendant forced her to perform oral sex on him, after which he gave her $5 and that, at age 16, defendant began to regularly rape her, forcibly penetrating her vagina with his penis. Id. at 17. Defendant would also let SG borrow money and would initiate sexual contact as repayment. Id. at 16. Defendant admitted that he was arrested for the assaults against SG, but the charges were dropped when SG refused to testify against him. Id. The report of Dr. Allan Tepper, defendant’s psychologist, confirms that defendant received outpatient treatment for his “urges” related to the assaults against SG. Tepper report at 5; see also, board report at 7.

In addition, there were indications that defendant abused his other stepchildren as well. PH, BG’s mother, indicated that defendant sexually assaulted her, starting at age 12. N.T., 9/11/07 at 16. PH said that defendant would digitally penetrate her while she was in the bath, and that he would perform oral sex on her to make sure she “was clean”. Id. PH indicated that when she tried to fight back defendant would beat her. Id. Two other stepdaughters and a stepson, SG (2), LN, and MG, also indicated that they were victims of sexual abuse by defendant. Id. at 17-18.

With regard to his own sexual history, defendant alleged that he was the victim of sexual assault on three separate occasions. Id. at 20. The first time was when he was 9, involving a man in his car. Board report at 4. The second time involved his grandfather when he was young. Id. The third incident occurred at age 18 when he was in the military and was sexually assaulted by a superior officer. Id. Defendant is 64 years old.

III. MATTERS COMPLAINED OF ON APPEAL

Defendant raises five matters complained of on appeal set forth verbatim below:

“(1) The sexually violent predatory designation is not supported by sufficient evidence because the Commonwealth failed to establish by clear and convincing evidence that appellant is likely to engage in predatory sexually violent offenses.
“(2) The sexually violent predatory designation is not supported by sufficient evidence because the Commonwealth failed to establish by clear and convincing evidence that appellant’s actions were predatory.
“(3) The lack of meaningful judicial reviewability of a sexually violent predator finding renders Pennsylvania’s Megan’s Law III unconstitutionally overbroad and excessive.
“(4) The review provisions of sexually violent predator determination contained in Pennsylvania’s Megan’s Law III are unconstitutional because they place the burden upon the appellant.
“(5) Megan’s Law III is unconstitutionally vague.”

This court will address defendant’s challenges to the sufficiency of the evidence for this court’s SVP determination, Matters (1) and (2), together. We will also address defendant’s constitutional challenges to the Registration of Sexual Offenders Act, 42 Pa.C.S. §9791 et seq., commonly known as Megan’s Law III, as set forth in Matters (3), (4), and (5), together.

IV. ANALYSIS OF MATTERS

Sufficiency of the Evidence, Matters (1) and (2)

“(1) The sexually violent predatory designation is not supported by sufficient evidence because the Commonwealth failed to establish by clear and convincing evidence that appellant is likely to engage in predatory sexually violent offenses.
“(2) The sexually violent predatory designation is not supported by sufficient evidence because the Commonwealth failed to establish by clear and convincing evidence that appellant’s actions were predatory.”

Megan’s Law III defines “sexually violent predator” as:

“A person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses....” 42 Pa.C.S. §9792.

In reviewing the sufficiency of the evidence regarding a S VP determination, an appellate court will reverse the trial court’s determination “only if the Commonwealth has not presented clear and convincing evidence sufficient to enable the trial court to determine that each element required by the statute has been satisfied.” Commonwealth v. Moody, 843 A.2d 402, 408 (Pa. Super. 2004). As the Commonwealth was the verdict winner, all evidence and any reasonable inferences derived therefrom will be viewed in the light most favorable to the Commonwealth. Id.

Defendant’s case is legally and factually similar to the Superior Court of Pennsylvania’s recent ruling in Commonwealth v. Geiter, 929 A.2d 648 (Pa. Super. 2007). In Geiter defendant pled guilty to seven offenses, and defendant herein has admitted his guilt to five of those offenses. Geiter and defendant each pled guilty to attempted rape of a child, involuntary deviate sexual intercourse with a person less than 13 years old, attempted aggravated indecent assault of a person less than 13 years old, indecent assault of a person less than 13 years old, and corruption of minors. Id. at 649. Geiter’s year-long sexual relationship with his 10-year-old son was the basis of his guilty plea. Id. Geiter appealed the trial court’s determination that he was a S VP, challenging the nature of the SVP assessment and the sufficiency of the evidence generally. Id. at 649, 652.

In Geiter, the Superior Court explained that “[t]he salient inquiry to be made by the trial court is the identification of the impetus behind the commission of the crime and the extent to which the offender is likely to reoffend. Id. at 651. (emphasis in original) The court affirmed the trial court’s determination in Geiter, because the testimony of the board’s expert established by clear and convincing evidence that Geiter met the criteria for pedophilia, which made him likely to engage in predatory sexually violent offenses in the future. Id. at 653. The expert testified in detail regarding the section 9795.4(b) factors and the application of the factors to that case. Id. at 652. Factors in Geiter’s favor included the lack of multiple victims, the lack of violence or cruelty, the lack of criminal history, the biological relationship to the victim, and his normal mental capacity. Id. Factors against Geiter included the gender and age of the victim. Id. The greatest single factor in the expert’s determination regarding Geiter’s likelihood to reoffend was the nature of the sexual conduct, including the multiple episodes of abuse, the period of time over which the abuse occurred, and the use of pornography. Id. at 652. The expert also noted that Geiter was the victim of sexual abuse as a child, and that despite his awareness of the harm, and deep remorse after each episode, he was unable to stop until there was a legal intervention. Id. at 653.

The evidence supporting this court’s determination that defendant is a SVP far exceeds the unfavorable evidence in Geiter. It was this court’s ultimate determination that the Commonwealth provided clear and convincing evidence of defendant’s status as a SVP. In particular, the board’s report reviews, in specific detail, the factors relevant to a SVP determination, and concluded that defendant met the diagnostic criteria for pedophilia and the statutory criteria for classification as a SVP. “It is clear that this offender has a sexually deviant pathway to offending.” Board report at 6. The evidence establishing the instant offense, and in particular, the repetitive nature of the acts against his step-granddaughter, clearly and convincingly supported the board’s recommendation that defendant met the criteria for pedophilia. Id. at 7.

“[Defendant’s] assaultive behavior against his victim in the instant offense involved multiple sexual acts, which culminated in ejaculation in [sic] numerous occasions. Therefore he has repeatedly acted on sexual urges indicating strong evidence that prepubescent children sexually arouse him.” Id.

Defendant, like Geiter, assaulted a related victim on numerous occasions over an extended period of time. Like Geiter, defendant used pornography with his victim. Also like Geiter, defendant was himself abused, and knowing the harm he was doing could not stop until intervention by law enforcement.

There were numerous other factors in the case sub judice, that were not present in Geiter, all of which supported our conclusion that defendant should be classified as a S VP. “This offender presents with numerous factors that suggest he can be placed in a group of offenders who will reoffend sexually.” Board report at 7. Unlike Geiter, defendant’s abuse was against multiple victims. There is overwhelming evidence, including his own admissions, that he began sexually assaulting his stepdaughters and stepson in the 1980s, and replicated the pattern of abuse 22 years later with his step-granddaughter. Id. “It appears that he has a sexual preference for children and early pubescents based on the instant offense and victim impact statements provided by his stepchildren.” Id. at 6-7. Defendant admitted he was arrested for the sexual assault of his stepdaughter, SG, but the charges were dropped when SG refused to testify. Defendant received treatment for his “urges” after the assaults on SG, but the treatment was obviously unsuccessful. Id.; Dr. Tepper report at 5. “Failed treatment is a significant factor in reoffense potential according to research.” Board report at 7.

This court found Dean Dickson’s conclusions, contained within the board report to be highly credible and substantially uncontroverted. The board report concluded, and the evidence clearly supports, that defendant met the criteria for the mental abnormalities of pedophilia and paraphilia NOS, attracted to adolescent females, both of non-exclusive types. Id. at 8. The board report also concluded that defendant’s actions were “predatory”. “Although [defendant] did not specifically develop the relationship with the victim to gratify his sexual urges he did augment and change the relationship to accomplish this.” The statute defines “predatory” as, “[a]n act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to facilitate or support victimization.” 42 Pa.C.S. §9792; see also, board report at 8. As Geiter demonstrates, a familial relationship does not preclude a SVP classification. Defendant maintained and promoted his relationship with his step-granddaughter to facilitate and support her victimization, and defendant’s conduct, therefore, met the statutory definition of “predatory”. This in conjunction with his diagnosis of pedophilia and paraphilia NOS, attracted to adolescent females, non-exclusive type, provided this court with overwhelming evidence that defendant should be classified as a sexually violent predator.

Constitutionality of the Registration of Sexual Offenders Act, Matters (3), (4), and (5)

“(3) The lack of meaningful judicial reviewability of a sexually violent predator finding renders Pennsylvania’s Megan’s Law III unconstitutionally overbroad and excessive.
“(4) The review provisions of sexually violent predator determination contained in Pennsylvania’s Megan’s Law III are unconstitutional because they place the burden upon the appellant.
“(5) Megan’s Law III is unconstitutionally vague.”

Defendant challenges the constitutionality of the Registration of Sexual Offenders Act, 42 Pa.C.S. §9791 et seq., also known as Megan’s Law, which was originally enacted in 1995 (Megan’s Law I). The Supreme Court of Pennsylvania deemed Megan’s Law I unconstitutional in Commonwealth v. Donald Francis Williams, 557 Pa. 285, 733 A.2d 593 (1999) (Williams I). The statute was reenacted and amended, effective July 9, 2000 (Megan’s Law II), and amended once again in 2004 (Megan’s Law III). It is this latest iteration which controls the matter sub judice. Defendant objects to the review provision of Megan’s Law III, 42 Pa.C.S. §9795.5, arguing the provision is unconstitutional because it does not provide for “meaningful” judicial review of a SVP determination and places the burden of proof on defendant. Defendant also asserts that Megan’s Law III as a whole is unconstitutionally vague.

Defendant admitted to sexually assaulting his step-granddaughter from August 2005 until July 2006, and with an effective date of January 24,2005, it is clear that Megan’s Law III applies to defendant’s case. However, to fully understand defendant’s constitutional challenge to Megan’s Law III, it may be helpful to review prior enactments to analyze defendant’s burden in the case sub judice.

Megan’s Law was enacted in 1995. This first statute created a presumption that a person convicted of any of the enumerated offenses was a sexually violent predator, and required a defendant to rebut the presumption with clear and convincing evidence. See 42 Pa.C.S. §9794(b) (declared unconstitutional in Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1.999) (Williams I) and deleted by Megan’s Law II). The Supreme Court of Pennsylvania in Williams I determined that the provisions relating to sexually violent predators in Megan’s Law I violated due process because they improperly placed the burden on the defendant and were, therefore, unconstitutional. Williams I, 577 Pa. at 312-13, 733 A.2d at 608.

“[W]e believe that the state must bear the burden of demonstrating that an offender is a sexually violent predator. Where resolution of competing facts is outcome determinative, ‘requiring the prosecutor to affirmatively convince the court of the important facts can be expected to materially reduce the risk of error....’
“Based on the foregoing, we find the sexually violent predator provisions of the Act to be violative of the procedural due process guarantees of the Fourteenth Amendment. Accordingly, we strike all of the relevant provisions of the Act pertaining to sexually violent predators and remand the matter to the Superior Court for further disposition of the remaining issues raised on appeal.” Id. at 312-13, 733 A.2d at 607-608. (footnotes omitted) (citations omitted)

In response to Williams I the legislature enacted Megan’s Law II on May 10, 2000, which became effective July 9,2000. Megan’s Law II shifted the burden of proof, and required the Commonwealth to establish by clear and convincing evidence that a defendant was a sexually violent predator. See 42 Pa.C.S. §9795.4(e)(3). However, in addition to shifting the burden of proof, the legislature also repealed a provision in Megan’s Law I which provided a mechanism for future judicial review of SVP determinations.

The Supreme Court of Pennsylvania ruled on a constitutional challenge to Megan’s Law II in Commonwealth v. Gomer Robert Williams, 574 Pa. 487, 832 A.2d 962 (2003) (Williams II). The court in Williams II held that the registration, notification, and counseling provisions of Megan’s Law II were not punitive. Id. at 520-21, 832 A.2d at 982, and that duties imposed on sexually violent predators, with regard to registration, verification, and counseling, were not excessive. Id. The court, however, expressed a concern that Megan’s Law II did not provide a procedure for future judicial review of a defendant’s SVP status. Id. at 521-22, 832 A.2d at 982-83.

“A reasonable argument could be made that, to avoid excessiveness, the legislature was required to provide some means for a sexually violent predator to invoke judicial review in an effort to demonstrate that he no longer poses a substantial risk to the community. This aspect of the statute may be particularly problematic if the definition of ‘sexually violent predator’ is incapable of reasonably precise implementation, as explained below. Notably, however, the position that a means for subsequent judicial review is a necessary feature of any valid registration/notification scheme assumes that, given sufficient time and/or treatment, sexually violent predators can be fully cured of the ‘mental abnormality or personality disorder [making them] likely to engage in predatory sexually violent offenses.’ 42 Pa.C.S. §9792 (defining ‘sexually violent predator’). As the record is devoid of any information concerning the prospect of successful treatment of such individuals, the presumption of constitutionality enjoyed by all validly enacted legislation, see Commonwealth v. Means, 565 Pa. 309, 315, 773 A.2d 143, 147 (2001), remains unrebutted. Cf. Commonwealth v. Fleming, 801 A.2d 1234, 1240-41 (Pa. Super. 2002)....” Id. at 521-22, 832 A.2d at 982-83.

Subsequently, other appellants challenged Megan’s Law II’s constitutionality based on the lack of judicial review. In Commonwealth v. Mullins, 905 A.2d 1009, 1014 (Pa. Super. 2006), defendant argued that because Megan’s Law II lacked a mechanism for future judicial review of a S VP determination that the statute was over-broad and excessive. The Superior Court in Mullins agreed with the three-judge panel of this court,

“[T]hat the Williams II court, ‘left open the question of whether Megan’s Law II could withstand a constitutional challenge in a case where the evidence of record rebuts the underlying legislative findings and/or proves the possibility of successful treatment for S VPs, inviting challengers to establish such a record.’” Id. at 1020 (citing the trial court in Mullins, 70 D.&C.4th 462, 473-74, 2005).

The Mullins court held that to establish that the lack of judicial review renders Megan’s Law II unconstitutional the “petitioner must show that Megan’s Law II is punitive in nature and therefore required to conform to due process standards.” Id. (quoting and adopting the analysis of the trial court). The Superior Court agreed that defendant had failed to meet the “high evidentiary standard” required to render Megan’s Law II unconstitutional. Id. at 1022.

The Superior Court followed the same reasoning in Commonwealth v. Leddington, 908 A.2d 328, 330-31 (Pa. Super. 2006), which made constitutional challenges to Megan’s Law II nearly identical to those made in Mullins; compare with Mullins, 905 A.2d at 1014. The court in Leddington recognized that statutes are awarded a strong presumption of constitutionality.

“A statute will be found unconstitutional only if it clearly, palpably, and plainly violates constitutional rights. Under well-settled principles of law, there is a strong presumption that legislative enactments do not violate the constitution. Further, there is a heavy burden of persuasion upon one who questions the constitutionality of an Act.” Commonwealth v. Leddington, 908 A.2d 328, 332 (Pa. Super. 2006) (citing Commonwealth v. MacPherson, 561 Pa. 571, 580, 752 A.2d 384, 388 (2000).

The Leddington court recognized that to overcome the presumption of constitutionality a SVP diagnosed with pedophilia must present evidence that pedophilia can be “fully cured.” 908 A.2d at 332. The court held that “[wjithout establishing such a ‘cure’ is available, the need for judicial review of the determination that a defendant is an SVP is clearly obviated.” Id. (footnote omitted)

At the time Mullins and Leddington were decided, the legislature had already enacted Megan’s Law III. A major aspect of the amended statute addressed the issue of subsequent judicial review by enacting section 9795.5, which allows a court to exempt a defendant from certain notification requirements. See 42 Pa.C.S. §9795.5.

The review provision of Megan’s Law III is set forth verbatim:

“Section 9795.5. Exemption from certain notifications
“(a) Lifetime registrants not classified as sexually violent predators.—
“(1) An individual required to register under section 9795.1 (relating to registration) who is not a sexually violent predator may petition the sentencing court to be exempt from the application of section 9798.1 (relating to information made available on the Internet) provided no less than 20 years have passed since the individual has been convicted in this or any other jurisdiction of any offense punishable by imprisonment for more than one year, or the individual’s release from custody following the individual’s most recent conviction for any such offense, whichever is later.
“(2) Upon receipt of a petition filed under paragraph (1), the sentencing court shall enter an order directing that the petitioner be assessed by the board in accordance with the provisions of section 9795.4(i) (relating to assessments). The order for an assessment under this subsection shall be sent to the administrative officer of the board within 10 days of its entry. No later than 90 days following receipt of such an order, the board shall submit a written report containing its assessment to the sentencing court, the district attorney and the attorney for the petitioner.
“(3) Within 120 days of the filing of a petition under paragraph (1), the sentencing court shall hold a hearing to determine whether to exempt the petitioner from the application of section 9798.1. The petitioner and the district attorney shall be given notice of the hearing and an opportunity to be heard, the right to call witnesses, the right to call expert witnesses and the right to cross-examine witnesses. The petitioner shall have the right to counsel and to have a lawyer appointed to represent him if he cannot afford one.
“(4) The sentencing court shall exempt the petitioner from application of section 9798.1 only upon finding by clear and convincing evidence that exempting the petitioner from the application of section 9798.1 is not likely to pose a threat to the safety of any other person.
“(b) Sexually violent predators.—
“(1) An individual required to register under section 9795.1 who is a sexually violent predator may petition the sentencing court for release from the application of section 9798 (relating to other notification) provided no less than 20 years have passed since the individual has been convicted in this or any other jurisdiction of any offense punishable by imprisonment for more than one year, or the individual’s release from custody following the individual’s most recent conviction for any such offense, whichever is later.
“(2) Upon receipt of a petition under paragraph (1), the sentencing court shall order the petitioner to be assessed by the board in accordance with the provisions of section 9795.4(i). The order for an assessment pursuant to this subsection shall be sent to the administrative officer of the board within 10 days of its entry. No later than 90 days following receipt of such an order, the board shall submit a written report containing its assessment to the sentencing court, the district attorney and the attorney for the petitioner.
“(3) Within 120 days of the filing of a petition under paragraph (1), the sentencing court shall hold a hearing to determine whether to exempt the petitioner from application of section 9798. The petitioner and the district attorney shall be given notice of the hearing and an opportunity to be heard, the right to call witnesses, the right to call expert witnesses and the right to cross-examine witnesses. The petitioner shall have the right to counsel and to have a lawyer appointed to represent him if he cannot afford one.
“(4) The sentencing court shall exempt the petitioner from application of section 9798 only upon clear and convincing evidence that releasing the petitioner from application of section 9798 is not likely to pose a threat to the safety of any other person.
“(c) Notice. — Any court granting relief to a petitioner under this section shall notify the Pennsylvania State Police in writing within 10 days from the date such relief is granted.
“(d) Right to appeal. — The petitioner and the Commonwealth shall have the right to appellate review of the actions of the sentencing court taken under this section. An appeal by the Commonwealth shall stay the order of the sentencing court.
“(e) Subsequent conviction for failing to comply. — If an individual is exempt from the application of either section 9798 or 9798.1 under this section and the individual is subsequently convicted of an offense under 18 Pa.C.S. §4915 (relating to failure to comply with registration of sexual offenders requirements), any relief granted under this section shall be void, and the individual shall automatically and immediately again be subject to all applicable provisions of this subchapter, as previously determined by this subchapter.”

While Mullins and Leddington were decided under Megan’s Law II, we believe the holdings therein requiring a defendant to develop a record sufficient to rebut the presumption of constitutionality enjoyed by all validly enacted legislation should similarly be applied to a constitutional challenge to Megan’s Law III, and the review provisions therein, as neither is violative of the constitution. See Leddington, 908 A.2d at 332; Mullins, 905 A.2d at 1020.

In the instant case, defendant agreed to a stipulated S VP hearing. Defendant provided no witness testimony or other evidence to challenge the constitutionality of section 9795.5 or any other provision of Megan’s Law III. Defendant did not prove that he is capable of being cured of his pedophilia. To the contrary, there is evidence that defendant received treatment for his prior “urges”, that such treatment was unsuccessful, and that unsuccessful treatment is a significant factor in reoffense. Board report, pp. 6-7. Defendant, therefore, has failed to meet his substantial burden in establishing that Megan’s Law III is unconstitutionally overbroad or excessive.

With regard to defendant’s argument that the review provision of Megan’s Law III, which relates to certain notification requirements, is unconstitutional because it places the burden on defendant, we note that courts have consistently held that the registration, notification, and counseling provisions are not punitive and are not required to meet due process standards. Williams II, 832 A.2d at 982; Mullins, 905 A.2d at 1020; Leddington, 908 A.2d at 331. Megan’s Law III did not materially alter the registration, notification, and counseling provisions found in Megan’s Law II. Defendant has again, therefore, failed to develop a record which establishes that Megan’s Law III is punitive, and his challenge, based on the burden of proof as contained within the statute’s review provision, is without merit.

Similarly, defendant has failed to provide any evidence which would prove that Megan’s Law III is unconstitutionally vague as applied to him. Indeed, Williams II held that Megan’s Law II was not unconstitutionally vague. 832 A.2d at 983; “[a]ny conclusion that an assessment of sexually violent predator status is so arbitrary that the consequences to the individual so adjudicated constitute punishment, would have to be grounded upon credible record evidence that the enumerated criteria were non-predictive, or that assessment pursuant to them was inherently unreliable.” Id. Moreover, in Mullins the court held that the terms “sexually violent predator,” “personality disorder,” “mental abnormality,” “predatory,” and “likely,” as defined in Megan’s Law II were not unconstitutionally vague. 905 A.2d at 1022. Megan’s Law III did not alter these definitions. See 42 Pa.C.S. §9792. Once again defendant has failed to meet his burden to rebut the overarching constitutional presumption enjoyed by this statute and pursuant to the stipulated facts of this case, we determined that as applied herein, Megan’s Law III is constitutional.

V. CONCLUSION

The foregoing represents the reasons for this court’s August 17,2007judgment of sentence and determination that defendant is a sexually violent predator.

      . 18 Pa.C.S. §3121(c), 18 Pa.C.S. §901.

      . 18 Pa.C.S. §3121.1, 18 Pa.C.S. §901.

      . 18 Pa.C.S. §3123(b).

      . 18 Pa.C.S. §3125(a)(7), 18 Pa.C.S. §901.

      . 18 Pa.C.S. §3126(a)(7).

      . 18 Pa.C.S. §6301 (a)(1).

      . While the court in Geiter does not expressly state which version of Megan’s Law applied in that case, it does not matter. The standard of review of a trial court’s SVP determination remains the same and the definition of “sexually violent predator” did not materially change from Megan’s Law II to Megan’s Law III. Moreover, it appears that Geiter was indeed decided pursuant to Megan’s Law III, as the opinion notes that Commonwealth v. Merolla, 909 A.2d 337 (Pa. Super. 2006), was decided under Megan’s Law II, and as Geiter pled guilty on May 30, 2006, more than 16 months after Megan’s Law III went into effect.

      . 1995, October 24, P.L. 1079, no. 24, effective immediately.

      . 2000, May 10, P.L. 74, no. 18, effective July 9, 2000.

      . 2004, November 24, P.L. 1243, no. 152, effective January 24, 2005.

      . Megan’s Law I contained the following provision in section 9794(f):
      “Subsequent board review. — No sooner than one year prior to release from a state or county correctional institution, or in five-year intervals thereafter, an offender designated as a sexually violent predator may petition the court with original jurisdiction in the matter for reconsideration of the determination. The court may review the determination and request a new report by the board. The court may enter an order terminating the designation in which case the court shall notify the Pennsylvania State Police.” 42 Pa.C.S. §9794(f) (repealed May 10, 2000, P.L. 74, No. 18, §3).

      . Megan’s Law III became effective on January 24, 2005. See 2004, November 24, P.L. 1243, no. 152.