author: ROGERS, J,

text:
    Commonwealth v. Granese

      Robert F. Falin, deputy district attorney, for Commonwealth.

      Joseph J. Hylan, for defendant.
    July 2, 2010
   ROGERS, J,

I. INTRODUCTION

Charles Angelo Gránese (petitioner) has appealed to the Superior Court of Pennsylvania from our order dated December 4,2008 dismissing his petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §9541 etseq. We believe petitioner’s appeal is without merit.

II. PROCEDURAL BACKGROUND

Following a 16-day jury trial commencing on December 8, 2005 and concluding on December 30, 2005, petitioner was convicted of first-degree murder, possession of an instrument of crime with intent to employ it criminally, and false reports to law enforcement authorities. Petitioner was found not guilty of third-degree murder. The offense of possession of weapon with intent to employ criminally was withdrawn. Petitioner was sentenced to life without parole on the first-degree murder conviction. The court assessed no further penalty.

The facts underlying these convictions are as follows. Between 10:30 p.m. and 11 p.m. on July 3, 2005, petitioner brutally stabbed and murdered his wife, Christine Gránese (victim or wife). During the struggle that ensued, petitioner stabbed the victim repeatedly in the chest, face and back. Petitioner slit his wife’s throat from side to side leaving a large gaping wound on her neck. An autopsy performed on her body on July 4, 2005 showed that the victim suffered 10 lethal stab wounds to her body and multiple defensive stab wounds to her hands.

The most significant of the wounds was one that passed through the victim’s chest wall and penetrated the aorta, where the coroner found 500 ccs. of blood and clots in the left pleural cavity. (N.T. trial, 12/14/05, pp. 36-37.) Additionally, there was a massive neck wound that started just to the right side (of the neck) and continued up toward the ear on the left side where it cut through the victim’s carotid artery. This was a very deep cut, which sliced through the skin and musculature in the victim’s neck. (N.T. trial, 12/14/05, p. 40.) Both chest and neck wounds were fatal wounds.

In the months preceding her murder, the victim discovered that her husband was having an extramarital affair with a woman, Andrea Maslanka, who worked for him. As petitioner’s obsession with this woman became more apparent, the victim started confronting petitioner about his behavior. The victim hired a private investigator, who confirmed the relationship between petitioner and Andrea Maslanka. The relationship with Maslanka became all consuming to petitioner, to the distress of his wife and family.

On July 2,2005, petitioner and his wife were scheduled to travel to their shore home in New Jersey for the July 4 weekend. The victim left on Friday, July 1, 2005, but petitioner stayed behind to see Ms. Maslanka. Andrea Maslanka had an angry exchange with petitioner that evening. She told him to get out and that their relationship was ended. Petitioner left a desperate message for Maslanka begging for forgiveness. He then went to New Jersey the next morning. When petitioner arrived at the shore home, the victim confronted him and they had a very heated argument. Petitioner made excuses to return to Pennsylvania on Saturday afternoon intending to see his paramour. Maslanka, however, did not want to see petitioner and sent him away. Petitioner returned to the shore home on the evening of Saturday, July 2,2005 and found that his wife was gone. The victim left the shore home and returned home to Pennsylvania on Saturday, July 2, 2005. Still, petitioner and his wife continued to argue by telephone on Sunday, July 3, 2005.

On the evening of Sunday, July 3, 2005, the victim went to one of her daughters’ homes to baby-sit for her granddaughter. She returned home that night between 10:30 p.m. and 11 p.m. Petitioner entered the home shortly thereafter, and savagely inflicted multiple stab wounds to the body of his wife, in a most horrific way. Petitioner brutally murdered his wife. Then, in a cold and calculating fashion, petitioner placed a call on his cellular phone to his home phone immediately after killing her. He left a loving voicemail message in an attempt to conceal his role in this most tragic murder.

Petitioner then left Pennsylvania in an attempt to perfect his alibi. He drove his Jeep back to the New Jersey shore where he stopped for gas at a Wawa Store in South Jersey and obtained a credit card receipt as “proof” of his whereabouts. Petitioner again called his wife and left a caring message on the home phone voicemail to create a false impression for the investigating police.

Petitioner left the New Jersey shore at 2 a.m. on July 4,2005. He claimed that he was driving his Cadillac, but he was seen driving his Jeep. When petitioner returned to Pennsylvania, he hid his Jeep inside of his garage in Bridgeport, Pennsylvania and drove his Cadillac to the residence to “discover” his wife’s murder.

On July 4, 2005, at 4:10 a.m., officers of the Norris-town Borough Police Department responded to 1513 Powell Street, Norristown, Pennsylvania, on the report of an unresponsive person. The officers found petitioner leaning over the lifeless body of his wife. The body was cold to the touch and covered in blood. Petitioner also had blood on his clothes. He told the officers that he had just returned from the shore and found his wife. Petitioner said that they kept large amounts of cash in the house suggesting robbery as a motive. Petitioner also mentioned that he and his wife argued recently over her spending too much money.

Members of the Forensic Sciences Unit of the Montgomery County Detective Bureau examined the scene of the homicide on July 4, 2005 and found no signs of forced entry on any of the doors or windows of the house. Several doors of the dining room hutch were fully opened and other valuables were plainly visible in the dining room. The detectives found a large sum of money beneath the hutch. The detectives ruled out robbery as a motive.

Petitioner told Montgomery County Detective Christopher Kuklentz and Lieutenant Mark Bernsteil that he arrived at the New Jersey shore sometime on Saturday, July 2,2005 and with the exception of one return trip on Saturday afternoon, stayed there until 2 a.m., July 4. 2005.

Petitioner’s daughter, Tina Singleton, said that she spoke with her mother by telephone several times throughout the weekend at the family shore home, which is a trailer at Ocean World Trailer Park, New Jersey. Singleton said that her mother argued with petitioner throughout the weekend, and at least one of the arguments was very heated. Singleton said that her mother came to her Norristown home on Sunday evening, July 3, 2005, to baby-sit Singleton’s daughter. The victim left Singleton’s home between 10:30 p.m. and 11 p.m. that night. It was the last time that Singleton saw her mother alive.

On March 3, 2006, petitioner was sentenced by the undersigned. He filed a timely notice of appeal from the judgment of sentence on April 3,2006. The undersigned, by order dated April 6, 2006, directed petitioner to file a statement of errors complained of on appeal with the court, pursuant to Pa.R.A.P 1925(b)(1). Petitioner’s concise statement was timely filed on April 20, 2006. The Superior Court affirmed the judgment of sentence by memorandum opinion dated July 24, 2007.

On August 22, 2007, petitioner filed a pro se timely petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §9541 et seq. alleging ineffective assistance of his privately retained trial counsel, Francis Recchuiti, Esquire and appellate counsel, John J. Duffy, Esquire. Petitioner contended that trial counsel failed to move for mistrial based on the prosecutor’s closing argument, and that appellate counsel failed to present developed arguments in his behalf.

On September 4,2007, the undersigned appointed the office of the Public Defender of Montgomery County to represent petitioner as PCRA counsel. On February 13, 2008, Joseph J. Hylan, Esquire, assistant public defender filed an amended petition under the Post Conviction Relief Act with the court. A PCRA hearing was held on April 17, 2008 and July 14, 2008.

On December 4, 2008, upon consideration of petitioner’s amended PCRA petition, briefs submitted by counsel regarding same, oral argument and hearing held by the court, and the court’s review of the relevant and applicable law regarding same, petitioner’s petition was denied. On December 30,2008, petitioner filed a timely notice of appeal to the Superior Court. The undersigned, by order dated January 5,2009, directed petitioner to file a concise statement pursuant to Pa.R.A.P 1925(b)(1). Petitioner’s concise statement was timely filed on January 9, 2009.

III. ISSUES

Petitioner raises four allegations of error on the part of the court in his concise statement as follows:

“(1) The court erred by denying PCRA relief even though the Commonwealth failed to introduce evidence sufficient to justify trial counsel’s failure to move for a mistrial following the prosecutor’s closing argument, an argument that the trial court characterized as inappropriate, inexcusable, and unacceptable. The Commonwealth failed to demonstrate how trial counsel not moving for a mistrial had a reasonable basis designed to advance Granese’s interests.
“(2) The court erred by denying PCRA relief even though the Commonwealth failed to introduce evidence sufficient to justify appellate counsel’s failure to submit an adequate appellate brief that the Superior Court determined as failing to present developed arguments as to two issues of arguable merit on direct appeal: (1) whether or not the court erred by refusing to suppress Granese’s statements to the police; and (2) whether or not the court erred by failing to give a sufficiently curative instruction following the prosecutor’s improper closing argument. The Commonwealth failed to demonstrate how appellate counsel not presenting developed arguments had a reasonable basis designed to advance Granese’s interests.
“(3) The court erred by permitting the Commonwealth to reopen the PCRA hearing after the Commonwealth had closed its case so that the Commonwealth could attempt to offer evidence that trial counsel’s failure to move for a mistrial had a reasonable basis designed to advance Granese’s interests, something that the Commonwealth had failed to do during the first session of the hearing. The court’s decision was particularly prejudicial to Granese’s cause because the Commonwealth’s request to reopen was occasioned by Granese’s memorandum pointing out the Commonwealth’s failure, a memorandum presented in good-faith reliance that the hearing had been concluded.
“(4) The trial court erred by refusing to apply the doctrine of Taw of the case’ with regard to the issue of whether appellate counsel had failed to present developed arguments as to two issues of arguable merit on direct appeal. Under the doctrine of Taw of the case’, the Superior (sic) had already decided, as a matter of law, that appellate counsel had failed to present such arguments, a decision that was binding on the trial court so as to award entitlement to an appeal, nunc pro tunc.”

IV. DISCUSSION

In proceedings under the PCRA, the scope of review of an appellate court is limited by the parameters of the Act. 42 Pa.C.S. §9541, et seq. “Since most PCRA appeals involve, as in this case, issues raising mixed questions of fact and law, [the] standard of review is whether the findings of the PCRA court are supported by the record and free of legal error.” Commonwealth v. Strong, 563 Pa. 455, 461 n.3, 761 A.2d 1167, 1170 n.3 (2000), quoting (Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582, 586 (1999)); 42 Pa.C.S. §9543.

In paragraph one of his 1925(b) statement, petitioner contends that the evidence was insufficient to justify trial counsel’s failure to move for a mistrial following the prosecutor’s closing argument. We believe this contention is without merit.

It is well settled that the PCRA provisions regarding ineffectiveness require no more than a constitutional ineffectiveness analysis has always required, regardless of whether the claim is posed under the PCRA or at an earlier appropriate stage of the litigation. Counsel is always presumed effective. “[T]he unshifting burden to prove ineffectiveness always rests upon [petitioner] and the defendant must always plead and prove both that counsel’s performance was deficient and that actual prejudice resulted from the deficient performance.” Commonwealth v. Simmons, 569 Pa. 405, 429, 804 A.2d 625, 639 (2001), quoting (Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981) “(court will not consider boilerplate claims of ineffective assistance)). See also, Commonwealth v. Morris, 546 Pa. 296, 312, 684 A.2d 1037, 1045 (1996) (speculative claim of ineffectiveness summarily rejected; ineffectiveness claims cannot be raised in vacuum).” (citing cases)

A. Ineffective Assistance of Trial Counsel

In the instant matter, petitioner contends that the court erred by denying him PCRA relief even though the Commonwealth failed to introduce evidence sufficient to justify trial counsel’s failure to move for a mistrial following the prosecutor’s closing argument. Petitioner further contends that the Commonwealth failed to demonstrate how trial counsel not moving for a mistrial had a reasonable basis designed to advance petitioner’s interests. We disagree.

To prevail on an ineffective assistance of counsel claim, petitioner must show that (1) the underlying claim has arguable merit; (2) counsel did not have a reasonable basis for his actions or failure to act; and (3) petitioner was prejudiced as a result of counsel’s ineffectiveness. Commonwealth v. McGill, 574 Pa. 574, 585, 832 A.2d 1014, 1020 (2003), citing Commonwealth v. Pierce, 567 Pa. 186, 203, 786 A.2d 203, 213 (2001). It is petitioner’s burden to prove all three prongs of this standard and failure to prove any one prong defeats a claim of ineffective assistance of counsel. Commonwealth v. Travaglia, 541 Pa. 108, 118, 661 A.2d 352, 357 (1995), cert. denied, 516 U.S. 1121 (1996). It is not the burden of the Commonwealth as petitioner seems to suggest.

In order to succeed in the instant case, petitioner must demonstrate that his underlying claim, trial counsel’s ineffectiveness for failure to move for a mistrial following the prosecutor’s closing argument, did not have a reasonable basis for his actions or his failure to act. We believe that the record on its face establishes that petitioner cannot meet this burden.

Initially, the undersigned found petitioner’s concise statement to be confusing when he referred to trial counsel’s failure to move for a mistrial following the prosecutor’s closing argument. If petitioner interpreted that to mean that he is entitled to PCRA relief on the basis that trial counsel provided him with ineffective assistance of counsel for failure to move for a mistrial following the prosecutor’s closing argument, then that contention must fail. The Superior Court, in its memorandum opinion dated July 24, 2007, stated that petitioner waived his current claims:

“[Petitioner] did not object to the prosecutor’s remarks at the time they were made. Rather, counsel raised a variety of objections after closing arguments ended. Accordingly, [petitioner] waived his current claims. See Commonwealth v. Sasse, 921 A.2d 1229, 1238 (Pa. Super. 2007) (holding the appellant waived challenges to statements in Commonwealth’s closing argument where the appellant objected after the argument but failed to object or move for a mistrial during the argument).

“Moreover, even if we were to overlook the lateness of [petitioner’s] objections, he would still not be entitled to a new trial. When objecting, [petitioner] did not request a mistrial but, rather, asked for curative instructions concerning the prosecutor’s improper remarks____” (904 EDA 2006, p. 9.)

Alternatively, if petitioner’s intention was to assert that he is entitled to PCRA relief on the basis that his trial counsel provided him with ineffective assistance of counsel because trial counsel failed to preserve his right to appeal trial counsel’s failure to request a mistrial during the prosecutor’s closing argument, then PCRA petitioner must establish: (1) that his underlying claim possesses arguable merit; (2) that counsel did not have a reasonable strategic basis for his course of conduct; and (3) that but for the alleged errors of counsel, there is a reasonable probability that the outcome would have been different, i.e., the petitioner must establish that he was actually prejudiced by counsel’s alleged ineffectiveness. Commonwealth v. Zook, 585 Pa. 11, 26, 887 A.2d 1218, 1227 (2005). It is further well-settled that the PCRA petitioner must satisfy each of the three prongs of this test in order to prevail upon an ineffectiveness claim. See e.g., Commonwealth v. Wharton, 571 Pa. 85, 98-99, 811 A.2d 978, 986 (2002).

A claim of ineffectiveness may be denied by a showing that the petitioner’s evidence fails to meet any of these prongs. Commonwealth v. Basemore, 560 Pa. 258, 295 n.23, 744 A.2d 717, 738 n.23 (2000).

We have thoroughly examined petitioner’s amended petition, his memorandum of law in support of petition under PCRA, the transcripts of the PCRA hearing, and the transcript of the closing arguments at trial on December 29, 2005 on these claims. While petitioner vigorously argues the merits of the underlying claims, and glosses over the issue of “but for” the alleged errors of counsel, there is a reasonable probability that the outcome would have been different, i.e., to establish that petitioner was actually prejudiced by counsel’s alleged ineffectiveness, petitioner makes a very limited argument invoking the second prong of the Pierce analysis which addresses whether there was any objectively reasonable basis for trial counsel’s action or inaction.

The undersigned carefully reviewed the record of the hearing and concluded that while petitioner’s trial counsel did indicate “probably what I should do is ask for a mistrial right now, and you know what? I don’t feel like putting 14 days down the drain. I want a curative instruction on that.” (N.T. July 14, 2008, p. 32.) Trial counsel also stated that there were other reasons involved as to why he did not ask for a mistrial. One of the reasons involved discussions with his client. Trial counsel met with his client in the courthouse after the conference in chambers to discuss what the alternatives were at that point because of what had occurred in the courtroom. (N.T. July 14, 2008, p. 21.) Trial counsel testified that he tried to explain to petitioner that he had the option of trying the case again, but trial counsel did not know for sure that petitioner comprehended that the mistrial in and of itself was not an acquittal. (N.T. July 14, 2008, pp. 21, 22.) Petitioner indicated to trial counsel that he did not think that he could get a fair trial, a second trial, and that up to that point he thought he had received a semblance of a fair trial. (N.T. July 14, 2008, p. 24.) Trial counsel also explained to petitioner that he would attempt to frame a curative instruction to cure what had happened. (N.T. July 14,2008, p. 22.) Considering the uncertainties inherent in a new trial, counsel’s decision to undertake a reasonably calculated risk rather than request a mistrial cannot be said to have had no reasonable basis. Even if a mistrial could have been secured, trial counsel had reasonably concluded that the presentation of the defense had gone well and had been favorably received by the jury and that his client stood a good chance with the jury without risking a mistrial.

Trial counsel added that he was up late in the office that evening and early the next morning preparing a curative instruction. The court received trial counsel’s proposed curative instruction. However, the court used its own curative instruction. The trial court properly instructed the jury and, specifically, in regard to the prosecutor’s reference to petitioner as a liar and murderer.

The curative instruction delivered by the undersigned must be considered along with the other instructions to the jury. When read as a whole, the instructions in their entirety properly set forth the law to the jurors and the manner in which the jury was to apply the law to the facts. Commonwealth v. Collins, 810 A.2d 698 (Pa. Super. 2002). As long as the law is clearly, adequately and accurately presented to the jury, a trial court has broad discretion in phrasing its instructions and can choose its own wording. Commonwealth v. Davis, 861 A.2d 310, 323 (Pa. Super. 2004).

The petitioner points to no error of law, which the trial'court committed in the cautionary instruction, which it gave to the jury. Therefore, no new trial is warranted. Moreover, while trial counsel speculated as to other wording he would have preferred, petitioner points to no law, which holds that the jury must be given instructions in trial counsel’s wording. Accordingly, we have no basis upon which to grant petitioner relief on this claim.

B. Ineffective Assistance of Appellate Counsel

Petitioner next contends that the court erred by denying PCRA relief to him even though the Commonwealth failed to introduce evidence sufficient to justify appellate counsel’s failure to submit an adequate appellate brief which the Superior Court determined failed to present developed arguments as to two issues of arguable merit on direct appeal: (1) whether or not the court erred by refusing to suppress petitioner’s statements to the police; and, (2) whether or not the court erred by failing to give a sufficiently curative instruction following the prosecutor’s improper closing argument. Additionally, petitioner contends that the Commonwealth failed to demonstrate how appellate counsel’s failure to present developed arguments had a reasonable basis designed to advance petitioner’s interests. We disagree.

A post-conviction claim of ineffective assistance of counsel raises a distinct legal ground, rather than an alternative theory, in support of the same underlying issue that was raised on direct appeal. Thus, ineffectiveness claims are distinct from previously litigated issues and may be brought in post-conviction proceedings. U.S.C. Const. Amend. 6; Pa. Constitution Article 1, Section 9; 42 Pa.C.S. §§9543(a)(3), 9544(a)(2).

“(a) Previous litigation. — For purposes of this subchapter, an issue has been previously litigated if:
“(1) Deleted.
“(2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or
“(3) it has been raised and decided in a proceeding collaterally attacking the conviction of sentence.”

First, we address petitioner’s claim of error on the part of the trial court by refusing to suppress petitioner’s statements to the police and by failing to give a sufficiently curative instruction following the prosecutor’s improper closing argument. Petitioner’s claims lack merit for the following reasons. The undersigned thoroughly examined petitioner’s amended petition, his memorandum of law in support of the amended petition and the transcripts of the PCRA hearing on these claims.

In an effort to define his burden to prove trial counsel’s ineffectiveness, petitioner sets forth the three prongs of ineffectiveness as outlined above in the memorandum of law. (Defendant’s memorandum at 11.) Defining his burden of proof in his memorandum of law, and adequately meeting the burden of developing his substantive claims, however, are not the same thing. When it comes to demonstrating trial counsel’s ineffectiveness for acting or failing to act in specific instances, petitioner has, as noted, opted for assertions of ineffectiveness rather than attempting to demonstrate how or why the outcome of the trial would have been different but for the act or omission in question. Commonwealth v. Rios, 591 Pa. 583, 599-600, 920 A.2d 790, 799 (2007). Counsel is presumed effective. Therefore, where petitioner failed to do more than assert that his claim has arguable merit, counsel lacked a reasonable basis for his acts or omissions, and he was prejudiced by counsel’s conduct, the presumption that counsel was effective prevails. Petitioner does not meet his burden with regard to presenting claims of ineffectiveness.

With regard to petitioner’s next issue, that the court erred by failing to give a sufficiently curative instruction following the prosecutor’s improper closing argument, this issue has been previously addressed above and was determined to have no merit.

Petitioner next addresses that the Commonwealth failed to demonstrate how appellate counsel not presenting developed arguments had a reasonable basis designed to advance petitioner’s interests. We find no merit in this argument.

The Post Conviction Relief Act provides relief to individuals who prove they were convicted of crimes they did not commit and those receiving illegal sentences. 42 Pa.C.S. §9542. “A petitioner is eligible for PCRA relief only when he proves by a preponderance of the evidence that his conviction or sentence resulted from one or more of the circumstances delineated in 42 Pa.C.S. §9543(a) (2).” Commonwealth v. Natividad, 595 Pa. 188, 206, 938 A.2d 310, 320 (2007). One of these circumstances is ineffective assistance of counsel. 42 Pa.C.S. §9543(a) (2)(ii). The (PCRA provides relief to those individuals whose convictions or sentences “resulted from ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place”). To obtain relief under this provision, a defendant must plead and prove that: (1) the claim underlying the ineffectiveness claim has arguable merit; (2) counsel’s actions lacked any reasonable basis; and (3) counsel’s actions resulted in prejudice to petitioner. Commonwealth v. Colins, 598 Pa. 397, 408-409, 957 A.2d 237, 244 (2008); Commonwealth v. Pierce, 515 Pa. 153, 158-59, 527 A.2d 973 (1987). “A chosen strategy will not be found to have lacked a reasonable basis unless it is proven ‘that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.’” Commonwealth v. Williams, 587 Pa. 304, 312, 899 A.2d 1060, 1064 (2006) (quoting Commonwealth v. Howard, 553 Pa. 266, 274, 719 A.2d 233, 237 (1998)):

“Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability that, but for counsel’s error, the outcome of the proceeding would have been different.” Commonwealth v. Pierce, 567 Pa. 186, 203, 786 A.2d 203, 213 (2001); Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel is presumed to have been effective and the burden of rebutting that presumption rests with the Petitioner. Commonwealth v. Basemore, 560 Pa. 258, 277 n.10, 744 A.2d 717, 728 n.10 (2000). Instantly, petitioner’s concise statement attempts to shift that burden to the Commonwealth. The law is clear. The burden remains with the petitioner.

C. Commonwealth’s Request To Reopen the Case

Petitioner’s next contention addresses the PCRA court’s decision to reopen the PCRA hearing to allow the Commonwealth to offer additional evidence, which was the testimony of trial counsel. Petitioner contends that the court erred in making this determination. We disagree.

It is well-settled that prior to rendering its verdict, a court may, in its discretion, permit the reopening of a case to present additional testimony. Commonwealth v. Chambers, 546 Pa. 370, 396, 685 A.2d 96, 109 (1996), cert. denied, 522 U.S. 827 (1997); Commonwealth v. Tharp, 525 Pa. 94, 98, 575 A.2d 557, 558-59 (1990); Commonwealth v. Irving, 485 Pa. 596, 603, 403 A.2d 549, 552 (1979), cert. denied, 444 U.S. 1020 (1980); Commonwealth v. Rizzi, 402 Pa. Super. 335, 339, 586 A.2d 1380, 1382-83 (1991); Commonwealth v. Campbell, 298 Pa. Super. 23, 26, 444 A.2d 155, 157 (1982). Such a ruling will be disturbed only if the court has abused its discretion. Chambers, 546 Pa. at 396, 685 A.2d at 109; Tharp, 525 Pa. at 98, 575 A.2d at 558-59; Beaumont v. ETL Services Inc., 761 A.2d 166, 168 (Pa. Super. 2000).

A court should ordinarily allow a case to be reopened where further testimony would serve the interest of a more accurate adjudication and where an honest purpose would be justly served without unfair disadvantage. Commonwealth v. Beck, 522 Pa. 194, 560 A.2d 1370 (1989); In re J.E.F., 487 Pa. 455, 458, 409 A.2d 1165, 1166 (1979); Beaumont v. ETL Services Inc., 761 A.2d at 168; Beneshunas v. Independence Life and Accident Insurance Co., 354 Pa. Super. 391, 398, 512 A.2d 6, 9 (1986). Moreover, the Pennsylvania Supreme Court has found it both common practice and proper for the court to reopen a case to introduce additional evidence after a party has rested, where a party has omitted evidence by accident, inadvertence, or, as here, because of mistake as to its necessity. See In re J.E.F., 487 Pa. at 458-59, 409 A.2d at 1166; Seaboard Container Corp. v. Rothschild, 359 Pa. 51, 56, 58 A.2d 800, 802 (1948).

The general practice holds that when a party rests after completing a phase of the trial, his or her presentation of evidence with regard to that phase is completed. The trial court may permit a party to reopen his or her case. Ordinarily, a court should permit a party to reopen his or her case where it is in the interest of a more accurate adjudication, making the presentation more effective for the determination of the truth, and will not create an unfair disadvantage. See Commonwealth v. Beck, 522 Pa. 194, 560 A.2d 1370 (1989). The trial court should not permit reopening where it would lead to unfair prejudice. Van Buren v. Eberhard, 377 Pa. 22, 104 A.2d 98 (1954); Duncan v. McCullough, 4 Serg. & Rawle 480, 1818 WL 2186 (Pa. 1818). Reopening by the plaintiff has been permitted, however, even after petitioner has argued in support of a nonsuit. Van Buren v. Eberhard, 377 Pa. 22, 104 A.2d 98 (1954).

In the instant matter, the undersigned determined that to reopen the case to allow the Commonwealth to present the testimony of trial counsel would certainly support a more accurate adjudication, making the presentation more effective for the determination of the truth, and would not create an unfair disadvantage to the petitioner as a result of the decision to permit trial counsel the opportunity to testify regarding the allegations of his ineffectiveness.

D. Law of the Case

Petitioner contends that the trial court erred by refusing to apply the doctrine of “law of the case” with regard to the issue of whether appellate counsel failed to present developed arguments as to two issues of arguable merit on direct appeal. We disagree.

Petitioner argues that under the doctrine of “law of the case”, the Superior (sic) had already decided as a matter of law that appellate counsel failed to present such argument, a decision that was binding on the trial court so as to award entitlement to an appeal nuns pro tunc. The law of the case doctrine applied to preclude the Superior Court from revisiting the issue of whether sufficient evidence supported a rape conviction. The Superior Court’s previous decision on this issue was not based upon arguments or briefs, but upon the entire trial record and all evidence actually received, and the defendant had benefit of submitting an appellate brief during his original direct appeal, and thus had prior opportunity to argue sufficiency of the evidence. Commonwealth v. O’Bidos, 849 A.2d 243, 252-53, (Pa. Super. 2004), citing (Commonwealth v. Starr, 541 Pa. 564, 664 A.2d 1326 (1995)).

“Among the related but distinct rules which make up the law of the case doctrine are that: (1) upon remand for further proceedings, a trial court may not alter the resolution of a legal question previously decided by the appellate court in the matter; (2) upon a second appeal, an appellate court may not alter the resolution of a legal question previously decided by the same appellate court; and (3) upon transfer of a matter between trial judges of coordinate jurisdiction, the transferee trial court may not alter the resolution of a legal question previously decided by the transferor trial court. Starr, 541 Pa. at 574, 664 A.2d at 1331 (citations omitted and emphasis added) (quoted by Commonwealth v. Viglione, 842 A.2d 454, 462 (Pa. Super. 2004)).” O’Bidos, 849 A.2d at 252.

“Departure from the law of the case doctrine is allowed only in exceptional circumstances such as (1) where there has been an intervening change in the controlling law, (2) a substantial change in the facts or evidence giving rise to the dispute in the matter, or (3) where the prior holding was clearly erroneous and would create a manifest injustice if followed. Starr, 541 Pa. at 575-76, 664 A.2d at 1332 (quoted in Viglione, 842 A.2d at 464).” O’Bidos, 849 A.2d at 253.

Instantly, petitioner’s position regarding the doctrine of law of the case is that the doctrine controls the instant matter because the Superior Court has already decided and found that appellate counsel failed to present developed arguments on the two issues set forth above which the undersigned presumes are the following: (1) whether or not the court erred by refusing to suppress petitioner’s statements to the police; and (2) whether or not the court erred by failing to give a sufficiently curative instruction following the prosecutor’s improper closing argument. The undersigned is making a presumption that petitioner is referring to these issues because petitioner did not specifically state them in the concise statement. However, petitioner stops one sentence short because the memorandum opinion of the Superior Court goes on to state the following regarding the suppression issue:

“Having not presented an argument that he was in custody when questioned, [petitioner] cannot prevail. Moreover, our own review of the record convinces us that an argument contending [petitioner] was in custody simply could not succeed ....” (904 EDA 2006, p. 6.)

With regard to the jury instructions, the Superior Court indicated in its non-precedential decision that:

“[Petitioner] develops no argument that the jury instructions were insufficient. Rather, he asks for a new trial based on the impropriety of the closing argument. Having asked for curative instructions and not having presented to us an argument that the instructions were insufficient, [petitioner] is not entitled to a new trial.” (904 EDA 2006, p. 10.)

In a footnote, the Superior Court stated:

“In fact, even if [petitioner] did develop for us an argument that the instructions were insufficient to cure the impropriety of the Commonwealth’s closing argument, we would not entertain that argument because [petitioner] did not raise specific objections to the instructions.” (904 EDA 2006, p. 10.)

Petitioner did raise appellate counsel’s ineffectiveness regarding this issue, which requires the Pierce analysis be completed. Generally speaking, the test for counsel’s ineffectiveness is well-settled. Under Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987), a defendant must establish (1) that the underlying issue has arguable merit; (2) that counsel did not have a reasonable basis for his or her actions; and (3) that prejudice resulted from counsel’s performance. Id. at 157-58, 527 A.2d at 975. It is also well-settled that counsel will not be deemed ineffective for failing to raise a baseless issue and that it is only when the underlying issue is of arguable merit that further inquiry must be made into the reasonableness for counsel’s actions and the prejudice that counsel’s actions may have caused. See Commonwealth v. Hutchinson, 521 Pa. 482, 486, 556 A.2d 370, 372 (1989). Instantly, counsel mentioned the three prongs of this test and proceeded to argue the underlying claim in substantial detail, but gives boilerplate attention to the Pierce analysis. Therefore, petitioner has failed to establish that direct appeal counsel was ineffective.

V. CONCLUSION

For all of the foregoing reasons, we respectfully request that the order dated December 4, 2008 dismissing petitioner’s petition pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §9541 et seq. (PCRA) be affirmed.

      . 18 Pa.C.S. §2502(a).

      . 18 Pa.C.S. §907(a).

      . 18 Pa.C.S.§4906(b)(l),

      . 18 Pa.C.S. §2502(c).

      . 18 Pa.C.S. §907(b).

      . Section 9541. Short title of subchapter

      This subchapter shall be known and may be cited as the Post Conviction Relief Act.

      . Commonwealth noted that petitioner’s trial testimony included five or six admissions that he did lie.

      . Amendment VI. Jury trials for crimes, and procedural rights

      “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

      . Constitution of the Commonwealth of Pennsylvania

        Article I. Declaration of rights

        " Section 9. Rights of accused in criminal prosecutions

      “In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.”

      . Section 9543. Eligibility for relief

        “(a) General rule. — To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:...
      “(3) That the allegation of error has not been previously litigated or waived.”

      . Section 9544. Previous litigation and waiver

      . Section 9542. Scope of subchapter

      “This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common-law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis. This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction. Except as specifically provided otherwise, all provisions of this subchapter shall apply to capital and noncapital cases.”

      . Section 9543. Eligibility for relief

        “(A) General rule. — To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:...

        “(2) That the conviction or sentence resulted from one or more of the following:
      “(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
      “(ü) Ineffective assistance of counsel, which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
      “(hi) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
      “(iv) The improper obstruction by government officials of the petitioner’s right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
      “(v) Deleted.
      “(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
      “(vii) The imposition of a sentence greater than the lawful maximum.
      “(viii) A proceeding in a tribunal without jurisdiction.”

      . Section 9543. Eligibility for relief

        “(a) General rule. — To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:...
      “(2) That the conviction or sentence resulted from one or more of the following: ...
      “(ii) Ineffective assistance of counsel, which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.”


source: Caselaw Access Project

author: SHEPPARD, J,

license: Public Domain

text:
    Jouria v. Education Commission for Foreign Medical Graduates

      Michael B. Tolcott and Gilbert B. Abramson, for plaintiff.

      Elisa P. McEnroe and Brian W. Shaffer, for defendant.
    June 23, 2010
   SHEPPARD, J,

Plaintiff, Jassin M. Jouria M.D. seeks to enjoin defendant, Education Commission for Foreign Medical Graduates (ECFMG) from permanently revoking his ECFMG medical certification thereby preventing him from pursuing a career as a doctor in the United States. Presently, before the court is Jouria’s motion for preliminary injunction.

Jouria is a graduate of Ross University Medical School, which conducts the core of its curriculum on the Caribbean island of Dominica. ECFMG is a private, not-for-profit organization, created to assess whether international medical school graduates are prepared to enter accredited medical residency or fellowship programs in the United States. As it relates to this case, ECFMG fulfills two primary roles: (1) subject to successful completion of various examinations, it provides international medical school graduates with a certificate indicating to United States residency and fellowship programs that these applicants have the ECFMG “stamp of approval” and (2) it processes assorted forms of documentation, such as letters of recommendation, and submits them to the Association of American Medical Colleges’ electronic residency application service. Essentially, in this second function ECFMG serves the same role as a dean’s office for those international students applying to post-graduate programs in the United States.

Upon graduation from Ross University School of Medicine in Dominica, Jouria sat for the ECFMG examinations and completed them with a passing scores. In conjunction with these tests, Jouria also submitted his medical school diploma to ECFMG for verification, which was later determined to have met the standards for certification. Accordingly, ECFMG issued Jouria a certificate on May 1, 2007.

In addition to the ECFMG examinations, and verification of medical school diplomas, ECFMG certifications are issued subject to its policy regarding “irregular behavior.” In pertinent part, “[i]rregnlar behavior includes all actions or attempted actions on the part of applicants, examinees, potential applicants, others when solicited by an applicant and/or examinee, or any other person that would or could subvert the examination, certification or other processes of the ECFMG.” Further, “[a] determination of irregular behavior shall be sufficient cause for ECFMG to bar an individual from future examinations, to withhold and/or invalidate the results of an examination, to withhold an ECFMG certificate, to re-voice an ECFMG certificate, or to take other appropriate action.”

In early 2008, it was brought to ECFMG’s attention that Jouria engaged in irregular behavior by submitting inauthentic letters of recommendation with his application for residency programs in the United States. Jouria’s conduct was considered by the ECFMG medical education credentials committee, and Jouria was afforded the opportunity to both appear before them in his own defense, and to submit written materials in support of his position. Following this process, the committee decided to revoke permanently Jouria’s ECFMG certificate. Jouria appealed that decision of the committee, but the decision was upheld.

On September 3, 2009, Jouria filed this injunction action, alleging that ECFMG is liable for breach of contract, as well as tortious interference with contractual relations. Further, Jouria seeks an injunction reinstating his ECFMG certificate. On January 26, 2010, a hearing was held including pertinent testimony and arguments concerning the motion for preliminary injunction.

DISCUSSION

The purpose of a preliminary injunction is to “prevent irreparable injury or gross injustice by preserving the status quo as it exists or as it previously existed before the acts complained of in the complaint.” A plaintiff seeking a preliminary injunction must establish that:

“(1) relief is necessary to prevent immediate and irreparable harm;
“(2) a greater injury will occur from refusing the injunction than from granting it;
“(3) the injunction will restore the parties to the status quo;
“(4) the alleged wrong is manifest and the injunction is reasonably suited to abate it; and
“(5) the plaintiff’s right to relief is clear.”

In this case, Jouria has met the requirements needed for a preliminary injunction. Accordingly, his motion should be granted.

Jouria presently suffers immediate and irreparable harm because he cannot submit a meaningful application to residency or fellowship programs in the United States without the ECFMG certification. This application deficiency occurs because the overwhelming majority of post-graduate medical programs require ECFMG certification, and applicants will not be considered without it. As a result, Jouria cannot earn an income in that area he has studied long and hard for. An even more pressing and immediate concern is that he will lose those necessary contacts within the medical profession as this matter continues to progress through the judicial system. These professional contacts are a critical source of positive references and connection to the medical community. As time passes, these relationships are more difficult to restore. Moreover, the loss of personal and professional connection to colleagues within the community is not a harm that can be repaired monetarily. Lost time and lost opportunities are not easily made up, and Jouria has already been subj ected to this punishment for over three years.

If certification status is not restored, greater injury will occur from refusing the injunction than from granting it. Without certification from ECFMG, Jouria is effectively barred from submitting a meaningful application to any United States residency or fellowship programs. Jouria has spent significant time and monies throughout his life, studying medicine and cultivating relationships within the medical profession. He has successfully passed all medical school examinations, and ECFMG examinations. Academically, he has demonstrated that he can succeed as a medical professional. If the injunction is denied, Jouria will virtually be barred from practicing medicine in the United States. If, however, the injunction is granted, there is no other person or institution that would suffer harm this significant. Accordingly, it is evident that greater harm occurs from refusing the injunction.

By restoring Jouria’s certification, the parties revert back to the status quo insofar as Jouria can now apply to residency and fellowship programs, but with appropriate notations in his file regarding his irregular behavior, and the medical school or program will be free to consider his application independently and determine if he is suited for their program. This change in certification status does not impact either party’s ability to argue the merits of the underlying legal challenge, and justice is best served by restoring certification now.

The court suggests that this issue is, in some respects, like a restrictive covenant in an employment agreement which imposes time-based and geographic limits on when and where an employee may work following a separation from their employer. One of the basic considerations used to determine the legality of this instrument is to determine if the restrictive covenant is “reasonably limited in duration and geographic extent.” Here, ECFMG’s decision to revoke, “forever” Jouria’s certification has the dramatic effect of preventing him from submitting a meaningful application to post-graduate medical programs permanently. Without this certification, which Jouria has already earned by virtue of passing the relevant examinations, he is effectively barred from practicing medicine, in the United States, forever. Indeed, ECFMG’s decision has profoundly affected Jouria’s life these past three years.

This court believes it worth discussing again the fact that permitting Jouria to make application to medical programs in no way guarantees his acceptance. It is, in this court’s view, more appropriate to have the medical program leaders rather than ECFMG decide whether Jouria is qualified, notwithstanding, irregular behavior, for their program.

This court believes that it is time to give Jouria a second chance. This court believes that to keep Jouria from practicing medicine in the United States for his entire life is too harsh a punishment — and a result this court deems inappropriate under the circumstances presented.

CONCLUSION

For these reasons, Jouria’s motion for injunctive relief is granted. An order consistent with this opinion is being filed.

ORDER

And now, June 23,2010, upon consideration of plaintiff, JassinM. JouriaM.D.’s petition for injunctive relief, defendant, Education Commission for Foreign Medical Graduate’s response in opposition, after a hearing and in accord with the contemporaneous opinion, it is ordered that plaintiff’s petition for an injunction is granted.

Defendant, Education Commission for Foreign Medical Graduates’ May 19, 2008 revocation of plaintiff’s certification of May 1, 2007, is vacated. Further, the defendant shall reinstate plaintiff’s May 1,2007 certification.

      . Jouria brief in support of motion for preliminary pnjunction, p. 1.

      . ECFMG response in opposition to motion for preliminary injunction, p. 3.

      . Id. at 4.

        . Id.

      . Id. at 6.

      . Id.

      . Id.

      . Id. at exhibit 1, page 1 of 3.

      . Id. (emphasis in original)

      . Id.

      . Jouria brief in support of motion for preliminary injunction, p. 3.

      . ECFMG response in opposition to motion for preliminary injunction, p. 8.

      . Id. at 9.

      . Id.

      . Ambrogi v. Reber, 932 A.2d 969, 974 (Pa. Super. 2007) (quoting Anchel v. Shea, 762 A.2d 346, 351 (Pa. Super. 2000).

      . Id. at 976.

      . ECFMG argues that it is the post-graduate medical programs that have determined the importance of certification, and that ECFMG is not responsible for Jouria’s inability to submit a meaningful application. ECFMG motion in further opposition to plaintiff’s motion for preliminary injunction, p. 2. However, this court feels differently, and does not believe it is of consequence who mandates the importance of the certification, but rather, the fact that it is required at all makes the permanent decertification of Jouria too severe for reasons discussed later in this opinion.

      . J.C. Ehrlich Co. Inc. v. Martin, 979 A.2d 862, 864 (Pa. Super. 2009).

      . Three years should be enough. Jouria exhibited remorse for his conduct at the hearing. Presumably, he has learned his lesson.


author: RUEST, J.,

text:
    Penns Valley Area School District v. Mid-State Construction Inc.

      Scott C. Etter, for plaintiff.

      Theodore A. Adler, for defendant.

      Michael J. Reed, for additional defendant Chambers.

      Gary N. Stewart, for additional defendant Action.
    July 29, 2010
   RUEST, J.,

Presently before the court are a motion for summary judgment filed by defendant Mid-State Construction Inc., amotion for summary judgment filed by third-party defendant Action Floor Systems LLC, and a motion in limine to preclude evidence concerning the defective nature of the gymnasium floor and responsibility therefore filed by plaintiff Penns Valley Area School District. Oral argument was held on June 3, 2010. Upon consideration of the briefs, arguments, and relevant case law, the court determines as follows:

BACKGROUND

This matter arises out of a dispute over responsibility for the replacement and costs associated with an allegedly defective gymnasium floor. In or about 2004, Penns Valley contracted with Mid-State, a general contractor, to commence several construction projects which included renovations and additions to the Penns Valley Elementary School Building. Construction at the elementary school building included the installation of a new hardwood gymnasium floor. Third-party defendant Chambers & Sons Hardwood Flooring Inc. entered a sub-contract with Mid-State to install the gymnasium floor. Flooring materials were supplied by Action. The applicable contract documents between Penns Valley and Mid-State included a special project warranty for the gymnasium floor and a number of special instructions pertaining to installation of the floor.

Chambers completed installation of the gymnasium floor in or about February of2005. Penns Valley subsequently advised Mid-State that the floor was defective, but Penns Valley was willing to conditionally accept the floor if Mid-State would extend the warranty on materials and workmanship. Mid-State, Chambers and Action agreed to offer an extended warranty. In or about February of 2006, Penns Valley informed Mid-State that the flooring was unacceptable. After remedial efforts by Chambers proved unsuccessful, Penns Valley rejected the floor and directed Mid-State to submit a plan for the removal and replacement of the flooring. Mid-State subsequently demanded arbitration, complaining Penns Valley was illegally withholding money owed on the project.

At arbitration, the arbitrator heard expert testimony regarding the gymnasium floor and conducted a site visit attended by all parties. Chambers and Action participated in the proceedings as witnesses for Mid-State. The arbitrator found the floor was defective, due to Chambers’ failure to comply with installation specifications, but awarded judgment in favor of Mid-State because Penns Valley had accepted the floor in exchange for the extended warranty. The arbitrator determined Penns Valley could seek full replacement of the floor under its initial warranty or the extended warranty, but did not enter an award to this effect because Penns Valley never filed a counterclaim or demand for affirmative relief.

Following arbitration, Penns Valley demanded replacement of the gymnasium floor and, in April of2008, notified Mid-State, Chambers and Action that it considered them in default. When no action was taken, Penns Valley began advertising for bids. Chambers eventually replaced the floor, with the exception of the section under the gymnasium bleachers. Penns Valley filed a complaint against Mid-State seeking reimbursement for costs and expenses associated with replacement of the floor, including costs incurred in connection with the arbitration proceedings and current litigation, as well as the future costs and expenses it will incur to replace the section of the floor under the bleachers.

PROCEDURAL HISTORY

Plaintiff initiated this lawsuit by filing a complaint against Mid-State on December 11,2008. Mid-State filed an answer with new matter on January 15, 2009. Mid-State additionally filed a third-party complaint on January 29, 2009, naming Chambers and Action as third-party defendants. Chambers filed an answer with new matter on March 30, 2009 and Action filed an answer with new matter on March 31,2009. Mid-State and Action each filed a motion for summary judgment on April 23, 2010, and Penns Valley filed a motion in limine the same day. Mid-State filed an answer to Action’s motion for summary judgment, Penns Valley filed an answer to Mid-State’s motion for summary judgment, and Action filed a brief in opposition to Penns Valley’s motion in limine. Chambers did not file a response to any of the motions.

DISCUSSION

I. Defendant Action Floor Systems LLC’s Motion for Summary Judgment

Under the Pennsylvania Rules of Civil Procedure, summary judgment may be granted where “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.” Pa.R.C.P. 1035.2. Action avers there is no genuine issue of material fact as to the necessary elements of the causes of action asserted by Mid-State because there is no evidence or allegation that the materials provided by Action were defective, or that the failure of the floor to meet project specifications was caused by Action’s conduct.

Mid-State claims if it is deemed liable to Penns Valley, Mid-State is entitled to contribution and indemnity from Action. To recover under either theory, Mid-State must establish Action bears responsibility for the failure of the gymnasium floor. See City of Wilkes-Barre v. Kaminski Brothers Inc., 804 A.2d 89, 92 (Pa. Commw. 2002) (indemnity shifts responsibility from a party held liable to the party whose conduct actually caused the loss); see also, Brown v. Dickey, 397 Pa. 454, 155 A.2d 836 (1959) (“The right to contribution is an equitable right based on common liability to the plaintiff.”). However, neither Mid-State nor Penns Valley has alleged or provided evidence that the materials provided by Action were defective or that the defective condition of the floor was caused by Action’s conduct. At most, Mid-State and Penns Valley allege Action provided technical advice to Chambers. This advice, however, was rendered after the floor was considered defective and neither Mid-State nor Penns Valley claims Action’s advice contributed to the defective condition. Additionally, in its motion in limine, Penns Valley maintains improper installation was the sole cause of the problem, as found by the arbitrator.

Where the non-moving party fails to adduce sufficient evidence on an issue essential to his case such that a jury could return a verdict in his favor, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ertel v. Patriot-News Company, 544 Pa. 93, 95, 674 A.2d 1038, 1042 (1996). As Mid-State has not adduced evidence that Action caused or contributed to the defective condition of the gymnasium floor, Mid-State’s claim for contribution and indemnification cannot withstand summary judgment.

Mid-State also seeks recovery against Action for breach of express warranty, breach of the implied warranty of merchantability and breach of implied warranty of fitness for a particular purpose. These claims also cannot survive summary judgment. The express warranty provided by Action states that Action warrants “the material it shipped . . . will be free from defects in materials and workmanship . . . Both implied warranty actions require Mid-State prove, inter alia, the flooring materials were not of merchantable quality or were not fit for their particular purpose. Mid-State has not alleged the materials were defective or otherwise presented evidence of a defect. As Mid-State has failed to adduce sufficient evidence of an issue essential to its warranty claims, there is no genuine issue of material fact and Action is entitled to judgment as a matter of law.

II. Mid-State Construction Inc. ’s Motion for Summary Judgment

The issue raised in Mid-State’s motion for summary judgment is whether the damages sought by Penns Valley are recoverable under the terms and conditions of the parties’ contract. Mid-State claims it is entitled to summary judgment because costs incurred by Penns Valley in connection with the arbitration, attorneys’ fees and costs associated with the current litigation, and incidental costs related to Penns Valley seeking to invite bids to replace the floor are not recoverable under the parties’ contract. Penns Valley maintains the costs and expenses are related to correcting the defective floor and may be recovered pursuant to article 12.2.1.1 of the contract.

When interpreting a contract, the court must first decide whether the term at issue is ambiguous. If no ambiguities are found, the court may regard the interpretation to be a question of law. Lapio v. Robbins, 729 A.2d 1229, 1232 (Pa. Super. 1999); Hutchison v. Sunbeam Coal Corporation, 513 Pa. 192, 201, 519 A.2d 385, 390 (1986); Metzger v. Clifford Realty Corp., 327 Pa. Super. 377, 385, 476 A.2d 1, 5 (1984). A contract is ambiguous when a provision is reasonably susceptible to more than one meaning. Id. at 386, 476 A.2d at 5.

Article 12.2.1.1 of the parties’ contract states:

“The contractor shall promptly correct work rejected by the architect for failing to conform to the requirements of the contract documents, whether discovered before or after substantial completion and whether or not fabricated, installed or completed. Costs of correcting such work, including additional testing and inspections and compensation for the architect’s services and expenses made necessary thereby, shall be at contractor’s expense.”

Article 12.2.1.1 is not ambiguous. The plain language clearly evinces the parties’ intent to assign Mid-State responsibility for correcting defective work and expenses made necessary thereby. The parties disagree upon whether, by this term, Mid-State must bear responsibility for certain costs at issue. However, “a contract is not rendered ambiguous by the mere fact that the parties do not agree upon the proper construction.” Id. As the court has determined the provision at issue is not ambiguous, interpretation of the provision is a matter of law.

The court first considers Penns Valley’s request for attorneys’ fees and litigation costs. Generally, “parties to litigation are responsible for their own counsel fees and costs unless otherwise provided by statutory authority, agreement of the parties, or some other recognized exception.” Wrenfield Homeowners Association Inc. v. DeYoung, 410 Pa. Super. 621, 626, 600 A.2d 960, 962 (1991). The contract at issue contains no express agreement authorizing recovery of counsel and litigation fees and article 12.2.1 A is not susceptible to such an interpretation. Therefore, Penns Valley may not recover counsel and litigation fees through this contract action.

Second, the court considers Penns Valley’s claim for costs related to the arbitration proceedings including, inter alia, payment for expert witnesses, staff compensation, attorneys’ fees and arbitrator’s fees. These expenses and fees are not “costs of correcting [defective] work, including additional testing and inspections and compensation for the architect’s services and expenses made necessary thereby,” as contemplated under article 12.2.1.1. Additionally, the arbitration expenses were not incurred in an effort to correct defective work. Rather, Mid-State initiated the arbitration claim and Penns Valley incurred the expenses to defend withholding payment for the floor Penns Valley never filed a counterclaim or demand for affirmative relief. As the costs associated with arbitration were neither incurred to correct defective work nor contemplated by the parties’ agreement, Penns Valley may not recover these costs through this action.

Finally, Penns Valley seeks compensation for incidental costs related to Penns Valley initially seeking to invite bids to replace the floor and costs of replacing the portion of the floor that has yet to be remedied. These costs are the type intended to be borne by Mid-State under article 12.2.1.1 of the contract and may properly be sought in this action.

It is appropriate to grant summary judgment where contract terms are clear and unambiguous and there is an absence of substantial factual disputes. Henry v. First Federal Savings & Loan Association of Greene County, 313 Pa. Super. 128, 134-35, 459 A.2d 772, 775 (1983). As the sole issue in Mid-State’s motion is one of contractual interpretation and does not require resolution of underlying facts, summary judgment is appropriate to dismiss Penns Valley’s claims for costs associated with arbitration and attorneys’ fees and costs in the current litigation. Penns Valley may proceed on its claims for expenses associated with correction of the defective work, including costs incurred to invite bids to replace the floor.

III. Penns Valley Area School District’s Motion in Limine

Penns Valley seeks to preclude the parties from introducing evidence of the defective nature of the gymnasium floor and responsibility therefore. Penns Valley maintains under the doctrine of collateral estoppel, Mid-State, Chambers and Action may not re-litigate this issue. Mid-State indicated at oral argument that it does not oppose Penns Valley’s motion. Although Action opposes the motion, Action’s motion for summary judgment was granted by this order. Chambers did not file a response or appear at oral argument.

To successfully invoke collateral estoppel, the movant must establish “(1) the issue decided in the prior adjudication was identical with the one [present] in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom it is asserted [had] a full and fair opportunity to litigate the issue in question in the prior action.” Safeguard Mutual Insurance Company v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975).

In the instant matter, the elements of collateral estoppel have been met. Mid-State was a party to the arbitration and the defective nature of the gymnasium floor was an issue in the proceedings. The arbitrator entered numerous findings on this issue which, under Pennsylvania law, are considered final judgments for the purposes of collateral estoppel. Dyer v. Travelers, 392 Pa. Super. 202, 207, 572 A.2d 762, 764 (1990). Finally, Mid-State had a full and fair opportunity to litigate the issue. Therefore, Mid-State may not present evidence concerning the defective nature of the gymnasium floor and responsibility therefore.

The requirements of collateral estoppel have also been met in regards to Chambers because Chambers and Mid-State shared a contractual relationship and their interests in the arbitration proceedings were substantially identical. Privity exists, for purposes of collateral estoppel, where two parties share such an identification of interest of one party with another as to represent the same legal right. Catroppa v. Carlton, 998 A.2d 643 (Pa. Super. 2010), citing Ammon v. McCloskey, 440 Pa. Super. 251, 260-61, 655 A.2d 549, 554 (1995). At issue in the arbitration proceedings was Mid-State’s right to payment for the gymnasium floor and, as part of this determination, the issues of the defective nature of the gymnasium floor and responsibility therefore were fully litigated. Additionally, Chambers participated in the proceedings. As Chambers was in privity with Mid-State and the remaining elements of collateral estoppel were met, Chambers may not re-litigate this issue.

Accordingly the following is entered:

ORDER

And now, My 29,2010, the following is the order of the court:

(1) Third-party defendant Action Floor Systems LLC’s motion for summary judgment is granted.

(2) Defendant Mid-State Construction Inc.’s motion for summary judgment is granted in part and denied in part. Plaintiff Penns Valley Area School District’s claims for costs, expenses and counsel fees associated with arbitration proceedings and attorneys’ fees and costs incurred in the current litigation are hereby dismissed. Penns Valley may proceed on the additional claims in its complaint.

(3) Plaintiff Penns Valley Area School District’s motion in limine to preclude evidence concerning the defective nature of the gymnasium floor and responsibility therefore is granted.


author: MOTTO, P.J.,

text:
    Dougherty v. CSX Transportation Inc.

      Patrick J. Donoghue and Mark F. McKenna, for plaintiff.

      John Edward Wall, Anthony J. Rash and Brendan B. Kelly, for defendant.
    April 30, 2010
   MOTTO, P.J.,

Plaintiff, Edward Dougherty, has sued defendant, CSX Transportation Inc., (CSX), pursuant to the Federal Employer’s Liability Act (FELA), 45 U.S.C. §§51-60, claiming that he was injured as a result of CSX’s negligence and/or its violation of the Federal Locomotive Inspection Act (FLIA), 49 U.S.C. §20701. Now before the court are the cross motions of the parties for summary judgment wherein defendant has moved for partial summary judgment on plaintiffs FLIA claim and plaintiff has moved for partial summary judgement as to liability. For the reasons set forth below, the court will deny both motions.

On June 3, 2004 plaintiff was the engineer assigned to operate CB’s locomotives 465 and 2745 on job E. 740-02 over the main line from Greenville, PA to New Castle, PA. Plaintiff and his conductor, Edward Hockey, reported to work at the New Castle station and were taxied to the Bessemer and Lake Erie Railroad (B&LE) Shenango Yard in Greenville were they were assigned to couple up their train in the Greenville yard, double to the main and then proceed over the main line to New Castle. Coupling involves the joining of two or more railcars together. Upon arrival in Greenville, CSX locomotive 465 was located on track #4 coupled to a second locomotive, CSX 2745, ready to be doubled to the cars on the main and then immediately depart the yard with Train E 740-02. Plaintiff proceeded to visually inspect the conductor’s side of the consist before boarding and entering the operating cab of the lead unit. Plaintiff contends it was while preparing to couple his train and leave for New Castle that he was injured when he slipped and fell on some loose coal and coal dust located on the front platform of locomotive 465, and that, when he fell, he injured his neck, shoulder, arm and back.

On February 3, 2006 plaintiff filed a two-count complaint against CSX in which plaintiff alleges that CSX was negligent in failing to provide him with a safe work place pursuant to the Federal Employers’ Liability Act, 45 U.S.C. §51 et seq., and was liable under the Federal Locomotive Inspection Act, 49 U.S.C. §20701, for requiring him to work with a locomotive that was in a defective condition. The parties filed cross motions for summary judgment. CSX argues that plaintiffs FLIA claim should be dismissed because the FLIA applies only to locomotives that are “in use”, and the locomotive was not “in use” when it allegedly caused the plaintiffs injury. Plaintiff has moved for partial summary judgment on the issue of liability under the Federal Locomotive Inspection Act, 49 U.S.C. §20701, and the Federal Employers’ Liability Act, 45 U.S.C. §51 et seq.

Initially, it is noted that jurisdiction in FELA cases is concurrent in federal and state court. Although FELA cases adjudicated in state courts are subject to state procedural rules, the substantive law governing such cases is federal. 45 U.S.C. §56; Harding v. Consolidated Rail Corporation, 423 Pa. Super. 208, 620 A.2d 1185 (1993).

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or 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. Pa.R.C.P. no. 1035.2.

Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Company, 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers Inc., 732 A.2d 648, 650-51 (Pa. Super. 1999)). A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones Inc., 756 A.2d 697 (Pa. Super. 2000).

When determining whether to grant a motion for summary judgment, the court must view 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. Hughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339 (2000); Dean v. PennDOT, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999); Basile v. H & R Block, 563 Pa. 359, 761 A.2d 1115 (2000); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile, supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state aprima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Commw. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 134 Pa. Commw. 494, 579 A.2d 1358 (1990).

Plaintiff has sued CSX under the FELA and the FLIA (formerly codified at 45 U.S.C. §23 as the Boiler Inspection Act), alleging that CSX failed to provide plaintiff with a safe place to work.

The FELA provides, in pertinent part:

“Every common carrier by railroad while engaging in commerce between any of the several states or territories . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.” 45 U.S.C. §51.

The statute departs from common-law negligence principles, making recovery easier to obtain than under a traditional negligence standard. Sinkler v. Mo. Pac. R.R. Co., 356 U.S. 326, 329 (1958). The Supreme Court has noted the deliberately broad and remedial purpose of the statute, stating that the cost of human injury, an inescapable expense of railroading, must be borne by someone, and the FELA seeks to adjust that expense equitably between the worker and the carrier. Id. Courts have held that in light of the remedial purposes underlying the statute, the FELA is to be construed liberally in favor of the injured plaintiff. See Green v. River Terminal RY. Co., 763 F.2d 805, 806 (6th Cir.1985). To establish liability under the FELA, a plaintiff must show: (1) circumstances which a reasonable person would foresee as creating a potential for harm; and (2) that the breach played any part, even the slightest, in producing the injury. McGinn v. Burlington N. R.R.Co., 102 F.3d 295, 300 (7th Cir.1996) (citing Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448 (1957)). To prove that an employer was negligent, a plaintiff must establish the common-law elements of negligence, including duty, breach, foreseeability, and causation. Adams v. CSX Transp. Inc., 899 F.2d 536, 539 (6th Cir.1990) (quoting Robert v. Consol. Rail Corp., 832 F.2d 3, 6 (1st Cir.1987)). Thus, while the state does not completely dispense with the requirement that a plaintiff establish a causal connection between the railroad’s negligence and the injury, it sets a very low proximate cause standard. Rogers, 352 U.S. at 506; Hines v. Consol. Rail Corp., 926 F.2d 262, 267 (3d Cir. 1991). Thus, as the Supreme Court has observed, the test is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448 (1957). Under the FELA, an employee’s contributory negligence will not bar him or her from obtaining relief and may only be considered to diminish the employee’s recovery of damages in proportion to his or her fault. 45 U.S.C. § 53; Norfolk Southern Ry. Co. v. Sorrell, 549 U.S. 158, 167 (2007). The defense of assumption of risk is completely eliminated. 45 U.S.C. §54; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 58 (1943).

Plaintiff also posits, however, that liability need not rest on such negligence where, as here, the locomotive was in a defective and unsafe condition, with coal and coal debris located on the front platform where plaintiff was required to walk and work. Plaintiff bases Count II of the complaint on the Federal Locomotive Inspection Act, which provides in relevant part:

“A railroad carrier may use or allow to be used a locomotive or tender on its railroad line only when the locomotive or tender and its parts and appurtenances—
“(1) are in proper condition and safe to operate without unnecessary danger of personal injury;
“(2) have been inspected as required under this chapter and regulation prescribed by the secretaiy of transportation under this chapter; and
“(3) can withstand every test prescribed by the secretary under this chapter.” 49 U.C.S. §20701.

Further, 49 C.F.R. §2229.119(c) states:

“Floors of cabs, passageways and compartments shall be kept free from oil, water, waste or any obstruction that creates a slipping, tripping or fire hazard. Floors shall be properly treated to provide secure footing.” 49 C.F.R. §2229.119(c).

An employee injured as a result of a violation of the FLIA may bring an action under the FELA based upon the FLIA violation. Lilly v. Grand Trunk W. R.R. Co., 317 U.S. 481, 485, 63 S.Ct. 347, 351 (1943) (analyzing the Boiler Inspection Act, the analogous predecessor statute to the FLIA). Negligence is not the basis for liability under the Act. Instead it imposes upon the carrier an absolute and continuing duty to maintain the locomotive, and all parts and appurtenances thereof, in proper condition, and safe to operate without unnecessary peril to life or limb. Id. (quoting Southern Ry. Co. v. Lundsford, 297 U.S. 398, 401, 56 S.Ct. 504, 506 (1936)). Thus, liability is absolute upon proof of an unsafe part and proximate cause and the FELA causation standard applies. Green, 763 F.2d at 810. An employer may violate the FLIA in either of two ways: (1) by breaching the broad duty to keep all parts and appurtenances of its locomotives in proper condition and safe to operate without unnecessary peril to life or limb; or (2) by failing to comply with the regulations issued by the Federal Railroad Administration. McGinn, 102 F.3d at 299.

Plaintiff additionally notes that strict liability under FELA attaches to the breach of regulations promulgated by the Federal Railroad Administration. McGinn, 102 F.3d at 298-99 (citing Mosco v. Baltimore & Ohio R.R., 817 F.2d 1088, 1091 (4th Cir.), cert denied, 484 U.S. 851 (1987)). To establish such liability, plaintiff directs this court to safety regulation, 49 C.F.R. §2229-119(c) which states that floors of cabs, passageways and compartments shall be kept free from any obstruction that creates a slipping, tripping or fire hazard.

CSX contends that plaintiff cannot maintain a claim against the railroad under the FLIA because while a FLIA claim can, under certain circumstances, be actionable under the FELA, the duty imposed by the Act only attaches when a locomotive is “in use”. Lyle v. Atchison, Topeka & Santa Fe Railway Co., 177 F.2d 221 (7th Cir. 1949), cert. denied, 339 U.S. 913, 70 S.Ct. 574 (1950) (analyzing the FLIA’S predecessor, the Boiler Inspection Act); see Pinkham v. Maine Cent. R.R.Co., 874 F.2d 875, 881 (1st Cir. 1989); see also, 49 U.S.C. §20701 et seq. The “in use” limitation gives the railroad an opportunity to remedy hazardous conditions before strict liability attaches to claims made by injured workers. Wright v. Ark & Mo. R.R. Co., 574 F.3d 612 (8th Cir. 2009).

Whether a locomotive is “in use” under the Act is a question of law for the trial court to decide and not a question of fact for the jury. Pinkham, 874 F.2d at 881. Absolute liability under the Act arises only if the locomotive in question is “in use” at the time of the accident. Crockett v. Long Island R.R., 65 F.3d 274, 277 (2nd Cir. 1995).

Congressional intent and the case law construing the statute clearly excludes those injuries directly resulting from the inspection, repair and servicing of railroad equipment located at a maintenance facility. Angell v. Chesapeake and Ohio Ry. Co., 618 F.2d 260, 262 (4th Cir. 1980). In addressing the “in use” question, the court in Pinkham observed that the determinative factors are the location of the locomotive at the time of the injury and the activity of the injured party. Pinkham, 874 F.2d at 882. A locomotive may still be considered “in use” although it is motionless. See Crockett, 65 F.3d at 277.

Courts across the country have struggled to define exactly when a locomotive or railcar should be considered “in use” under the FLIA or its counterpart, the Federal Safety Appliance Act (FSAA). 49 U.S.C. §20301 et seq. In recent years, two primary approaches have emerged. In Trinidad v Southern Pacific Trans. Co., 949 F.2d 187 (5th Cir. 1991), the Fifth Circuit established a bright line test, stating that a train is not “in use” until it has been inspected and released. Trinidad, 949 F.2d at 189. Alternatively, the Fourth Circuit has adopted a test focusing on two primary factors which courts should consider: (1) where the train was located at the time of the accident, and (2) the activity of the injured party. Phillips v. CSX Transp. Inc., 190 F.3d 285 (4th Cir. Md. 1999)(citing Deans v. CSX Transp. Inc., 152 F.3d 326 (4th Cir. 1998)).

In Angell, the Fourth Circuit held that the locomotive was “in use” where the railway had okayed the locomotive for service. 618 F.2d at 262. The plaintiff, a machinist, was injured while the engine was on a service track and had been blue flagged. Id. at 261. At the time of the injury, all servicing, maintenance and inspection work had already been performed. Id. The court noted that Congress excluded injuries directly resulting from the inspection, repair, or servicing of railroad equipment located at a maintenance facility. Id. at 262. Angelí involved an injury that occurred after inspection, repair, and servicing had been completed and during the uncoupling of a readied engine in preparation for moving it to a nearby track to pull a train a few hours later. Id. Because the engine was not in need of further repair or servicing and had been given the all clear by railway officials, it was “in use” and the statute applied despite the presence-of blue flags. Id.

Subsequently, the Fourth Circuit revisited its “in use” analysis and adopted a multi-factor test to determine whether a train is “in use”. Deans, 152 F.3d at 329; Phillips, supra. In Deans, the court held that to determine whether a train is “in use” for purposes of the FASS, the primary factors we consider are where the train was located at the time of the of the accident and the activity of the injured party. Id. The court expressly rejected any analysis that would make a single factor, such as release from inspection, dispositive. The court ultimately held that the locomotive was “in use” because the train already had its engine coupled to it and was standing on a track in the rail yard in preparation for imminent departure— not in storage or waiting to be moved into a repair location. Id. at 330.

In interpreting the FLIA, a Federal District court recently distinguished in Underhill v. CSX Transportation Inc., 2006 WL 1128619 (N.D. Ind. 2006) the difference between rail cars, under the FSAA, and rail vehicles-locomotives, under the FLIA. Citing the Supreme Court’s holding in United States v. Erie R.R. Co., 237 U.S. 402 (1915), the court stated it is still good law holding that safety requirements applicable to rail vehicles-locomotives do apply during switching operations, because switching operations necessarily involve the use of rail vehicles to push and pull cars.

In the case before the court there is no doubt that CSX locomotive 465 was being operated and run by plaintiff as he was preparing to double to his train and leave the yard. Defendant CSX sent the plaintiff out to board his locomotives to switch out railroad cars and make up his train. At the time of plaintiffs accident, his locomotive was beginning to switch and couple the rail cars in preparation for travel to New Castle. Plaintiffs locomotive was not blue flagged, not in the shop for inspection; it was in use, ready to leave the yard.

In McGrath v. Consolidated Rail Corp., 136 F.3d 838 (1st Cir. 1998) a First Circuit court ruled that plaintiffs locomotive was “in use” under the terms of the Boiler Inspection Act (now the FLIA) when he was in the process of inspecting it for imminent departure when he slipped and fell in the locomotives’ cabin. In McGrath, plaintiff was a Conrail engineer employed as a shifter, or an engineer on short runs, who usually moved trains between local depots. He was responsible not only for operating the train, but also for attaching individual cars to the locomotive. Plaintiff was assigned to a locomotive 2013, which was coupled back-to-back with another locomotive. McGrath approached both locomotives, which had their engines running and boarded the second locomotive to cross over into locomotive number 2013. As soon as he entered the cabin of number 2013, McGrath started to walk toward the daily inspection card. In the cabin, McGrath lost his balance when he stepped on an acorn shaped nut. He prevented himself from falling by grabbing the four-foot high engineer’s control stand. Consequently, he suffered injuries to his shoulder, neck and back. McGrath commenced an action for personal injures alleging that defendant was negligent in failing to provide him with a safe work place pursuant to the FELA, and was liable under the Boiler Inspection Act (now the FILA) for requiring him to work with a locomotive that was in a defective condition. The court in finding that plaintiffs locomotive was “in use” under the terms of the Boiler Inspection Act found that locomotive 2013 was neither being serviced in aplace of repair, nor operating on Conrail’s main line. Rather, locomotive number 2013 was running on the yard track and ready to move into service. In addition, although McGrath was part of a transportation crew, he was also required, as the engineer, to perform certain inspection duties before moving the locomotive. The court found McGrath’s inspection duties were incidental to the task of operating the train as an engineer. Id. citing Rivera v. Union Pac. R. R. Co., 868 F. Supp. 294, 301 (D.Colo. 1994). The court further pointed out that a locomotive may still be considered “in use” although it is motionless citing Crockett v. Long Island R.R., 65 F.3d 274, 277 (2nd Cir. 1995) and ruled that McGrath’s locomotive was “in use” and the Boiler Inspection Act was applicable. McGrath, 136 F.3d at 842.

In the case before this court plaintiff’s locomotive was located on track #4 in the yard, preparing to make a double with the hoppers from track #5 to 127. hoppers on the south main lead. After making the coupling, plaintiff would immediately begin to transport his 130-car train to New Castle. It is readily apparent that CSX locomotive 465 was “in use” and preparing to pull rail cars in interstate commerce. It is apparent that plaintiff was the engineer assigned to operate the CSX locomotives to switch out and pull his train. The 127 train cars standing on the main line were on air, had been previously inspected and were ready to go. Plaintiff was in the process of coupling to these 130 cars and preparing to leave the yard. The location of plaintiff s locomotive, on a live yard track #4, and the fact that he would use the locomotives to make a double to the south main and then leave the yard with the plaintiff as the engineer running the locomotives clearly indicated that plaintiffs locomotive was “in use” on June 3, 2004.

Therefore, defendant’s motion for partial summary judgment on plaintiffs FLIA claim is denied.

Plaintiff contends that he is entitled to summary judgment under the FLIA because CSX has admitted that there was loose coal and coal dust located on the platform of locomotive 465 on June 3, 2004 and this coal caused plaintiff to slip and fall and as a result, plaintiff suffered several serious injuries that have left him disabled. Plaintiff contends that a violation of the FLIA is actionable under the statutory scheme of the FELA and there is no proof by defendant CSX that plaintiffs accident did not happen in the manner set forth by plaintiff, nor can plaintiff be blamed for his accident, therefore, as a matter of law, CSX is liable for plaintiffs injuries.

This court notes as has long been the law in Pennsylvania, it is the province of the jury to weigh plaintiffs credibility. Nanty-Glo Boro v. American Surety Co., 309 Pa. 236, 238, 163 A. 523, 524 (1932). The Pennsylvania Supreme Court has stated:

“[The] appellant contends that the court below erred in refusing its motion for a new trial, inasmuch as the trial judge, in directing a verdict for plaintiff, took from the jury the opportunity of passing upon the truth of this oral testimony setting forth matters essential to plaintiffs recovery.
“We are of [the] opinion that appellant is clearly right in its contention, and that a new trial must be had. In granting plaintiffs motion for binding instructions, the trial judge assumed the testimony of Carlisle and Estep to be true. This he had no right to do, even though it was uncontradicted. In the words of Justice Sharswood, ‘However clear and undisputable may be the proof when it depends upon oral testimony, it is nevertheless the province of the jury to decide, under instructions from the court, as to the law applicable to the facts, and subject to the salutary power of the court to award a new trial if they should deem the verdict contrary to the weight of the evidence.’ Reel v. Elder, 62 Pa. 308. This rule is firmly established. Second National Bank v. Hoffman, 229 Pa. 429[, 78 A. 1102]; Newman v. Romanelli, 244 Pa. 147[, 90 A. 556]; McGlinn Distilling Co. v. Dervin, 260 Pa. 414[, 103 A. 872].” Borough of Nanty-Glo, 309 Pa. at 238, 163 A. at 524.

Instantly, plaintiffs motion relies solely on his own statements through his deposition, his employee’s incident report and his statements to his trainmaster Dave Heron. As such self-serving statements are insufficient to support summaiy judgment in his favor, plaintiffs motion must be denied, and the issue of credibility should rightfully be submitted to a jury.

Accordingly, for the foregoing reasons, the court will deny defendant’s motion for partial summary judgment on plaintiffs FLIA claim and plaintiffs motion for partial summary judgment on the issue of liability.

ORDER

And now, April 30, 2010, after consideration of the cross motions of the defendant and plaintiff for summary judgment, and in accordance with the accompanying opinion of even date herewith, it is ordered and decreed as follows:

(1) Defendant’s motion for summary judgment is denied as the court finds, as a matter of law, the locomotive which is the subject of this action was “in use” for purposes of the plaintiffs claim under the Federal Locomotive Inspection Act, 49 U.C.S. §20701, at the time of the alleged incident, which is the subject of this law suit.

(2) Plaintiff s motion for summary judgment is denied as the issue of whether plaintiff fell as the result of coal and coal dust located on the platform of the locomotive is a question of fact which must be resolved by the jury.