author: WALLACH MILLER, J.,

text:
    Stout v. Deleo

      C.P. of Monroe County,
    no. 970 CIVIL 2007.

      Robert J. Radano, for plaintiff.

      Shawna R. Laughlin, for defendants.
    February 2, 2011
   WALLACH MILLER, J.,

This case stems from a 2005 motor vehicle accident. On February 17, 2005, at approximately 7 p.m., defendant David Fox (“Fox”) and Steven A. Stout (“plaintiff’) were involved in an automobile accident in Stroud Township, Monroe County. As plaintiff rounded a curve on Route 209, he noticed a multiple-car pileup in the distance. Plaintiff attempted to brake to avoid these vehicles, but the roadway was covered with black ice and snow and plaintiff lost control of his car. His vehicle skidded on the ice, spun out of control, and collided with the guardrail separating the northbound and southbound lanes of travel. Just before plaintiff’s vehicle came to a stop, plaintiff was struck from behind by defendant Fox, who had also lost control of his vehicle on the icy roadway.

Defendants Kenneth and Kristen Deleo (“Deleos”) owned the car that Fox was driving when the accident occurred. At the time of the accident, plaintiff held a motor vehicle insurance policy with State Farm Mutual Automobile Insurance Company with limited tort coverage.

Plaintiff did not visit the emergency room immediately after the collision, but sought treatment from his family doctor a few days of the accident. Plaintiff, a Stroud Regional police officer, missed his next three shifts and then returned to work with no restrictions. To date, plaintiff has not modified his police cruiser in any way to accommodate his injuries, and has had no difficulty using his firearm or discharging his other duties as a police officer. Plaintiff underwent minor medical treatment for his injuries and takes over-the-counter Motrin only occasionally to combat his symptoms.

Plaintiff filed a complaint on February 8, 2007, and asserted a claim in negligence against Fox and the Deleos, jointly and severally, sounding in negligence. In his complaint, plaintiff alleged chronic shoulder pain, decreased range of motion and pain in the neck, right arm pain and hand numbness, and back pain, and sought damages in excess of $50,000.00 for both economic and non-economic losses. Defendants filed an answer with new matter on September 26, 2007, which alleged, inter alia, that plaintiff’s claim was barred and/or limited by provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”), 75 C.S. § 1701, et seq., which pertain to limited tort option coverage.

On November 11, 2010, defendants filed this motion for summary judgment. Defendants argue that, pursuant to 75 C.S. § 1705(d), plaintiff, a limited tort elector, can only recover damages for non-economic losses stemming from the accident if his injuries are deemed a “serious impairment of body function.” Defendants point to multiple statements from plaintiff’s deposition which, they claim, illustrate that plaintiff’s injuries do not rise to the level of “serious impairment of body function” and therefore limit plaintiff’s recovery to economic damages. Plaintiff filed a response on November 29, 2010, and argued that the trier of fact, not the trial judge, should decide whether plaintiff has suffered injuries serious enough to pierce the limited tort threshold. Plaintiff also attached medical records to the response in an attempt to demonstrate the severity of his injuries.

We heard oral argument on this matter on Januaiy 3, 2011. After careful review of the briefs submitted by the parties and relevant case law, we are ready to decide defendants’ motion. For the following reasons, we grant defendants’ motion for summary judgment and dismiss plaintiff’s claims for non-economic damages.

Pennsylvania Rule of Civil Procedure 1035.2 states that any party may move for summary judgment in whole or in part whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense, and the moving party is entitled to judgment as a matter of law. See also Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643 (Pa. Super. 2002). A trial court may dismiss all or part of a claim after the close of pleadings through summary judgment. Wilson v. El-Daief, 600 Pa. 161, 964 A.2d 354 (2009). To prevail on amotion for summary judgment, the moving party bears the burden of proving that no genuine issues of material fact exist as to a necessaiy element of the cause of action or defense. Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648 (Pa. Super. 1999). The court must view the record in the light most favorable to the party opposing the motion for summary judgment and resolve all doubts as to the existence of genuine issues of material fact against the moving party. Potter v. Herman, 762 A.2d 1116 (Pa. Super. 2000). The trial court may only enter summary judgment when the facts are so clear that reasonable minds cannot differ. Basile v.H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115 (2000).

The party opposing a motion for summary judgment may not rest on mere allegations or denials in the pleadings, but must identify evidence of a dispute of material fact presented by the record in the case. Pa. R.C.P. 1035.3. The record, for the purposes of amotion for summary judgment, consists of pleadings, depositions, answers to interrogatories, admissions, affidavits, and reports signed by an expert witness that would, if filed, comply with Rule 4003.5(a)(1). Pa. R.C.P. 1035.1.

Automobile insurers must offer two alternatives — full tort insurance and limited tort insurance — to prospective vehicle insurance purchasers pursuant to 75 Pa. C.S. § 1705 and the MVFRL. An insured who elects limited tort coverage can pursue only partial recovery against others as a result of a motor vehicle accident, with some exceptions. Id. Specifically, Section 1705(d) provides:

Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any non-economic loss, except that:
(1) An individual otherwise bound by the limited tort election who sustains damages in a motor vehicle accident as the consequence of the fault of another person may recover damages as if the individual damaged had elected the full tort alternative whenever the person at fault:
(i) is convicted or accepts Accelerated Rehabilitative Disposition (ARD) for driving under the influence of alcohol or a controlled substance in that accident;
(ii) is operating a motor vehicle registered in another state;
(iii) intends to injure himself or another person, provided that an individual does not intentionally injure himself or another person merely because his act or failure to act is intentional or done with his realization that it creates a grave risk of causing injury or the act or omission causing the injury is for the purpose of averting bodily harm to himself or another person; or
(iv) has not maintained financial responsibility as required by this chapter, provided that nothing in this paragraph shall affect the limitation of section 1731(d)(2) (relating to availability, scope and amount of coverage).
(2) An individual otherwise bound by the limited tort election shall retain full tort rights with respect to claims against a person in the business of designing, manufacturing, repairing, servicing or otherwise maintaining motor vehicles....
(3) An individual otherwise bound by the limited tort election shall retain full tort rights if injured while an occupant of a motor vehicle other than a private passenger motor vehicle. 75 Pa. C.S. § 1705(d).

Plaintiff does not contend that any of the listed exceptions apply to plaintiff’s cause of action against the named defendants in the present case. Plaintiff argues, however, that he has suffered “serious injury” and is therefore permitted to seek recovery for non-economic as well as economic damages from defendants.

Section 1702 of the MVFRL defines “serious injury” as “[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa. C.S. § 1702. Both plaintiff and defendants agree that plaintiff does not suffer from “permanent serious disfigurement” as a result of the accident, and plaintiff did not die from injuries sustained in the accident. The court, then, must determine whether plaintiff has suffered “serious impairment of body function” such that plaintiff's claim for non-economic damages is not precluded by Section 1705(d) of the MVFRL. If we determine that plaintiff has suffered serious impairment of body function, then plaintiff may seek both economic and non-economic damages despite plaintiff’s status as a limited tort elector; if not, then summary judgment is appropriate and plaintiff may not seek non-economic damages from defendants.

Both the Pennsylvania Superior Court and the Pennsylvania Supreme Court have clearly defined the parameters for determining whether a litigant has suffered serious impairment of body function. See Dodson v. Elvey, 665 A.2d 1223 (Pa. Super. 1995); Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998). The proper analysis, derived from the Supreme Court of Michigan in DiFranco v. Pickard, 398 N.W.2d 896 (Mich. 1986), contains two inquiries:

a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
b) Was the impairment of the body function serious? The focus of these inquires is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment. In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious. Dodson, 665 A.2d at 1233-34, Washington, 553 Pa. at 447-48, 719 A.2d at 740 (citing DiFranco, 398 N.W.2d at 901).

Pennsylvania courts have consistently adhered to this analytical framework in subsequent cases when considering whether a litigant’s injuries rise to the level of a “serious impairment of body function.” See Robinson v. Upole, 750 A.2d 340 (Pa. Super. 2000); McGee v. Muldowney, 750 A.2d 912 (Pa. Super. 2000);Long v. Mejia, 896 A.2d 596 (Pa. Super. 2006); Graham v. Campo, 990 A.2d 9 (Pa. Super. 2010). When considering the severity of a litigant’s injuries for this purpose, the court should focus not on the injuries themselves, but on their effect on body function. See Washington, 553 Pa. at 449, 719 A.2d at 741; Kelly v. Ziolko, 734 A.2d 893 (Pa. Super. 1999). Furthermore, in Washington v. Baxter, the Pennsylvania Supreme Court departed from Dodson v. Elvey and held that:

the legislature...indicated that the traditional summary judgment standard was to be followed and that the threshold determination [of whether a litigant has suffered a serious injury] was not to be made routinely by a trial court judge...but rather was to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained. Washington, 553 Pa. at 446-47, 719 A.2d at 740.

In so holding, the Supreme Court removed the threshold determination from the trial judge in all but the clearest of cases. Id.

Our higher courts have clarified the proper standard for this threshold determination in a series of cases. In Washington, supra, the Pennsylvania Supreme Court affirmed summary judgment against the plaintiff limited tort elector after the court determined that the plaintiff had not presented sufficient evidence of serious impairment of body function. Washington, 553 Pa. at 437, 719 A.2d at 735. As a result of a motor vehicle accident, the plaintiff in Washington suffered injuries which included cuts and contusions, mild sprain or strain to the right foot, and cervical sprain or strain. Id. The plaintiff was treated at a hospital emergency room and discharged the same day as the accident with prescription strength Ibuprofen. Id. According to plaintiff’s deposition, plaintiff was unable to return to one of his jobs for four to five days and to his other, part-time job, for one to two months. Id. at 447-48, 719 A.2d at 735. Plaintiff testified that the injury caused him intermittent pain and that he often experienced ankle swelling. Id. at 439, 719 A.2d at 736. He stated that he could perform his normal job responsibilities as well as before the accident. Id. Plaintiff’s only limitation as a result of the accident was that he needed to use a riding mower instead of a normal lawn mower. Id.

As noted above, the Supreme Court in Washington overruled Dodson v. Elvey, 665 A.2d 1223 (Pa. Super. 1995), and held that trial courts should follow the traditional summary judgment standard and leave the threshold determination of whether plaintiff has sustained “serious impairment of body function” to the jury unless reasonable minds could not differ. Washington, 553 Pa. at 446-47, 719 A.2d at 740. The court also applied the dual-inquiry framework and determined that plaintiff’s right foot was impaired as a result of the accident, but, despite plaintiff’s evidence to the contrary, “reasonable minds could not differ on the conclusion that [plaintiff’s] injury was not serious.” Id. at 448, 719 A.2d at 740-41. The Supreme Court noted that plaintiff missed only four or five shifts at both his full- and part-time jobs, plaintiff’s injuries were diagnosed as mild, treatment was not extensive, and the injury “seem[ed] to have had little or no impact on [plaintiff’s] performance of his job functions and engagement in personal activities.” Id. at 449, 719 A.2d at 741.

Similarly, in McGee v. Muldowney, 750 A.2d 912 (Pa. Super. 2000), the Superior Court affirmed the trial court’s grant of summary judgment for the defendant and held that plaintiff had not suffered “serious impairment of body function” sufficient to pierce the limited tort threshold for non-economic damages. The court chronicled plaintiff’s admissions at or before trial: plaintiff visited the emergency room after the accident, received a prescription for Tylenol, and was discharged with a diagnosis of cervical strain and sprain; plaintiff did not seek further medical attention until ten days later with complaints of back, neck, and shoulder pain; a subsequent x-ray examination of plaintiff’s right shoulder was normal; plaintiff completed a course of physical therapy; an MRI of plaintiff’s shoulder found conditions consistent with tendonitis or degeneration, but was otherwise unremarkable; plaintiff only sought treatment once more for his injuries from the accident, about one year after the accident; and plaintiff had been employed full-time as an electrician starting about 14 months after the accident and through until trial, and plaintiff’s employer was unaware that plaintiff shunned certain lifting tasks. McGee, 750 A.2d at 914-15.

The Superior Court in McGee held that, although plaintiff established that he suffered some injury, plaintiff did not establish through medical evidence that he suffered serious impairment of body function. According to the court, reasonable minds could not argue that “these injuries resulted in such substantial interference with any bodily function as to permit the conclusion that the injuries have resulted in a serious impact on [plaintiff’s] life for an extended period of time.” Id. at 915. Specifically, plaintiff “failed to present objective medical evidence as to the degree of any impairment and extent of any pain suffered” and plaintiff’s allegations, “in the absence of objective medical evidence, do not permit a finding that [plaintiff] suffered the requisite ‘serious injury.’” Id. For these reasons, the court held that the threshold determination could not be left to the jury and was properly decided by the trial court. Id.

Conversely, in Long v. Mejia, 896 A.2d 596 (Pa. Super. 2006), our Superior Court affirmed the trial court’s order which held defendants responsible for plaintiff’s injuries because plaintiff’s injuries rose to the level of “serious impairment of body function” as contemplated by the MVFRL. In Long, the plaintiff visited the emergency room on the day of the accident and also treated with a doctor less than a week later, complaining of neck, back, shoulder, and wrist pain. Long, 896 A.2d at 599. The plaintiff completed a course of physical therapy over seven weeks, but still had to wear a wrist brace on occasion at the time of trial three years after the accident. Id. Plaintiff’s doctor testified that plaintiff had a “severe problem with his left wrist, one that could be considered permanent and that the injuries complained of were caused by the car accident.” Id. Plaintiff had to be careful when playing with his grandchildren and nieces to avoid wrist pain. Id. Importantly, because of his wrist injury, plaintiff could no longer control the tools, jackhammers, and compressors he once used as a construction worker. Id.

The Superior Court affirmed the order of the trial court, “recognizing the facts of this case represent a close call,” and emphasized certain language from Washington v. Baxter. Id. at 598. The court in Long wrote that “our Supreme Court contemplated the effect of aparticular inj ury on the specific person injured, including how that injury negatively impacted the person’s ability to perform his or her chosen profession.” Id. at 600 (quoting Washington v. Baxter, 553 Pa. at 449, 719 A.2dat 741: “the injury seems to have had little or no impact on appellant’s performance of his job functions and engagement in personal activities.”). Since the plaintiff in the case worked as a heavy laborer, plaintiff’s wrist injury seriously inhibited his ability to perform his chosen profession. Therefore, the Superior Court affirmed the ruling of the trial court that found that plaintiff’s injuries rose to the level of “serious impairment of body function” in order to pierce the limited tort threshold.

In Kelly v. Ziolko, 734 A.2d 893, (Pa. Super. 1999), the Superior Court reversed an order of the trial court which granted partial summary judgment for the defense for plaintiff’s claims for non-economic damages; the court found that the issue of whether plaintiff suffered serious impairment of body function should have been decided by the jury. Kelly, 734 A.2d at 900. After the accident, plaintiff suffered pain in his neck, back, and knees, and intermittent numbness in two toes on his left foot. Id. at 899. Plaintiff presented to the emergency room shortly after the accident and was discharged less than two hours later with a soft collar for his neck. Id. Plaintiff undertook a course of physical therapy and submitted to an MRI which showed that he suffered from a herniated disk. Id. Plaintiff was placed on pain medication and voluntarily sought treatment for his back from a chiropractor. Id. As a result of injuries sustained in the accident, plaintiff had trouble sleeping, could not run, could not sit or walk for longer than 15 minutes, and found it difficult to play with his child. Id. Plaintiff also had to cease certain recreational hobbies, such as mountain biking, motorcycling, and hunting. Id. at 900. Plaintiff missed only a few work shifts before he returned to work full time and, at trial, worked for the same employer with only minor limitations on lifting heavy objects. Id. One of plaintiff’s physicians, however, testified that plaintiff’s herniated disk was likely a permanent condition. Id.

The court in Kelly reversed the trial court’s ruling that plaintiff did not suffer serious injury and remanded the case for trial, recognizing that the facts of the case presented a “less clear-cut picture of the seriousness of the plaintiff’s injuries” than in other cases such as Washington v. Baxter. Id. The Superior Court emphasized the permanence of plaintiff’s injuries, the treatment required to correct them, and the fact that plaintiff was severely limited in much of his personal life. See Id. at 899-01.

Turning to the facts of our case, we note that our inquiry is essentially limited to the contents of plaintiff’s deposition on February 4, 2009 and the allegations in the pleadings. Plaintiff has not filed any affidavits signed by his treating physicians nor has plaintiff identified any experts he plans to call at trial. The record does not contain plaintiff’s answers to defendants’ interrogatories, initially served on July 31, 2007, nor any admissions relevant to the current motion. Therefore, our analysis, per Rule 1035.1, is constricted to the pleadings and depositions in the record.

The record before us reveals the following pertinent information regarding plaintiff’s injuries and subsequent treatment following the motor vehicle accident between plaintiff and defendant Fox.

Plaintiff did not recall experiencing any pain at the scene of the accident, [plaintiff’s deposition of 2/4/09 at 33 (hereinafter “deposition”)]. Plaintiff started to notice pain in his neck, right hip, and left shoulder shortly after the accident. [Deposition at 34] Plaintiff never presented at the hospital for his injuries; he first visited his family doctor at Wind Gap Family Practice four days after the accident complaining of left shoulder pain. [Deposition at 16, 29,31] In October of 2005, eight months after the accident, plaintiff experiencedpain under his right shoulder blade and right hand numbness and began treating with Dr. Ly cette, a neurosurgeon. [Deposition at 41] Plaintiff saw Dr. Lycette twice, or “maybe” three times, and Dr. Ly cette ultimately recommended that plaintiff have physical therapy for neck pain. [Deposition at 42] Plaintiff cannot recall where he had the physical therapy in 2006, his only therapy program since the accident. [Deposition at 43] Plaintiff’s family doctor ordered an MRI of plaintiff’s neck in 2006; his doctors ordered no further testing. [Deposition at 43-44] Plaintiff never visited a chiropractor for his back pain either before or after the accident. [Deposition at 14] Plaintiff’s doctors never prescribed any medication for his complaints, and plaintiff stated that he “might take Motrin” to deal with his ailments. [Deposition at 51, 63] Since the accident, plaintiff has complained of neck and shoulder pain and right hand pain and numbness. [Deposition at 42-44; 66-67] Plaintiff also claims that he recently returned to a pain management specialist and has received injections to deal with the pain. [Plaintiff’s response to defendants’ motion for summary judgment, 10/29/10, ¶ 31]

As a consequence of his injuries, plaintiff experiences numbness in his right hand when sitting in his police cruiser for long periods of time and while cycling. [Deposition at 46-47] Numbness sets in when plaintiff keeps his hand still for an extended period, and he explained that “I constantly have to readjust while I’m sitting there.” [Deposition at 46-47] Plaintiff testified that in the years after the accident, he severely curtailed his competitive cycling; he also stated that as a result of his hand numbness, he does not cycle recreationally anymore. [Deposition at 48, 54-57] Plaintiff testified that he does not sleep as well as before the accident and takes many more sick days than he used to. [Deposition at 59-60]

He also asserted that he gets common colds much more often now than before the accident. [Deposition at 60] Plaintiff does not pursue winter sports, such as skiing and ice skating, because he is “not in shape anymore” and he feels pain after strenuous physical activity. [Deposition at 61-62] More generally, plaintiff does not exercise because “[i]t hurts. I don’t sleep well. Then the next day I wake up stiff. My neck hurts. I don’t sleep for days after I work out.” [Deposition at 62] As a result, plaintiff now weighs 210 pounds, up from 172 pounds at the time of the accident. [Deposition at 61]

On the other hand, plaintiff only missed three days of work after the accident took place. [Deposition at 58] Neither plaintiff nor plaintiff’s superiors modified plaintiff’s police cruiser in any way to accommodate for plaintiff’s injuries; nor have plaintiff’s job responsibilities been modified at all. [Deposition at 47,59] Plaintiff has had no problems handling or discharging his firearm. [Deposition at 48] Plaintiff’s doctors placed no restrictions on plaintiff’s physical or work activity at any time after the accident. [Deposition at 52] Plaintiff, who lives alone, has never asked for help in maintaining his home and yard. During his deposition, plaintiff admitted that he has never reached the point where he could not use his right arm due to the pain and numbness, except for one occasion in 2005 that led him to visit Dr. Lycette in the first place. [Deposition at 45] And although he testified that he does not cycle at all anymore, plaintiff competed in the Ontario Spring Classic, a 20-mile race, weeks after the accident. [Deposition at 52-53]

The first part of the “serious impairment of body function” analysis, from Dodson and Washington, requires us to identify the body function that was impaired by the accident. Here, plaintiff initially suffered from neck stiffness and pain, right hip pain, and left shoulder pain. Plaintiff’s complaint and his deposition testimony establish that plaintiff seeks to recover for right hand numbness and pain, shoulder pain, and neck pain.

The second prong of the analysis asks whether the impairment was serious. To determine whether the impairment is serious, the trial court must consider the extent of the injuries, the length of the injuries, any treatment required, and other relevant factors. See Dodson, 665 A.2d at 1233-34; Washington, 553 Pa. at 447-48, 719 A.2d at 740. According to the evidence contained in the record, plaintiff suffers from slight numbness in his hand, pinching in his right shoulder blade, pain in his right arm, and a burning sensation in his neck. We cannot say that plaintiff has been injured to a great extent, and we are mindful that “[t]he focus of these inquiries is not on the injuries themselves” but on the effect of the injury on body function. See Washington v. Baxter, 553 Pa. at 447-48, 719 A.2d at 740. Additionally, plaintiff has suffered from these injuries from the date of the accident through today, almost six years later. We do not know, however, whether plaintiff’s injuries represent a permanent condition, like the plaintiffs in Long and Kelly, because plaintiff has not presented any objective medical evidence to that effect. Furthermore, plaintiff only visited doctors on a few occasions and underwent one course of physical therapy. Plaintiff also testified that he does not take any medications for his pain, unlike the plaintiff in Kelly, except for over-the-counter Motrin infrequently.

Other relevant factors lead us to conclude that plaintiff does not suffer from a “serious impairment of body function.” For one, plaintiff has not been limited at all in his job performance since the accident. Plaintiff missed only three days of work immediately following the accident, and has not subsequently missed any shifts due to his injuries. Plaintiff did not modify his police cruiser to accommodate his condition, and he has not experienced any difficulty handling or firing his weapon. Since plaintiff returned to work three days after the accident, he has continued to perform his job as a police officer without restriction. As noted above, our Supreme Court has placed special emphasis on the effect of a litigant’s injuries on that person’s ability to perform his or her chosen profession. See Washington, 553 Pa. at 449, 719 A.2d at 741; Long, 896 A.2d at 600. In the case at bar, plaintiff’s injuries have had virtually no impact on plaintiff’s job performance, except that plaintiff may readjust his right arm when sitting in his cruiser for long periods of time.

Similarly, plaintiff’s personal restrictions are relatively minor, and mostly self-imposed. None of plaintiff’s doctors specifically directed plaintiff cease physical activity. Rather, plaintiff restricted his physical activity of his own accord and now complains of stiffness, soreness, and poor sleep after he exercises. He claims that he has gained weight because of his physical limitations resulting from the accident. Plaintiff, however, has not supplemented the record with any objective medical evidence tending to show that plaintiff actually suffers from serious pain while exercising or that plaintiff’s own restrictions on his activities are justified by his condition. Like the plaintiff in McGee, plaintiff has established that he suffered some injuries, but has not adequately proven that “these injuries resulted in such substantial interference with any bodily function as to permit a conclusion that the injuries have resulted in a serious impact on his life for an extended period of time.” McGee, 750 A.2d at 915.

The question for the court is whether plaintiff has shown that he suffered a serious injury such that a body function has been seriously impaired. Although plaintiff has introduced evidence that he has suffered, and continues to suffer, pain in his shoulder and neck and numbness in his right hand, plaintiff has failed to show that these injuries have had such an impact on him as to constitute “serious impairment of body function” as contemplated by the MVFRL and Pennsylvania case law. While mindful of the fact that this threshold determination should not be made by the trial court in all but the clearest cases, and considering the evidence in the light most favorable to plaintiff, we hold that reasonable minds could not differ on the conclusion that plaintiff has not suffered a serious injury. We therefore grant defendants’ motion for summary judgment and dismiss plaintiff’s claims for non-economic damages.

Accordingly, we enter the following order.

ORDER

And now, February 2, 2011, defendants’ motion for summary judgment is granted.


source: Caselaw Access Project

author: MAIER, J.,

license: Public Domain

text:
    Wright v. Denny

      David B. Sherman, for plaintiffs.

      Stephen E. Vedro, for defendants.
    January 25, 2011
   MAIER, J.,

Plaintiff-appellant, Joe and Sharon Wright, h/w (“plaintiff’), brought this action against defendants Sirod Denny and Southeastern Pennsylvania Transportation Authority (“SEPTA”), to recover damages stemming from a motor vehicle accident that occurred on June 30,2007. Anonjury trial commenced on September 16, 2010. The sole issue heard before this court was whether SEPTA was obligated to pay uninsured motorist benefits to plaintiff. On October 4, 2010, this court found that SEPTA was not obligated to pay those benefits. On October 8, 2010, plaintiff filed a motion for post-trial relief, requesting the judgment be vacated and entered in favor of plaintiff or, in the alternative, a new trial. Plaintiff now appeals this court’s order of October 27, 2010, which denied plaintiff’s post-trial motion.

Plaintiff filed and served upon this court a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In his statement, plaintiff contends:

1. It was error for the court to deny plaintiff’s motion for post-trial relief because, as a matter of law, sovereign immunity was inapplicable to the case because the negligence or nonnelgience of SEPTA was immaterial to the uninsured motorist claim because in a UM claim, SEPTA stands in the shoes of the negligent uninsured third party. See Lowery v. Port Authority of Alleghany County, 914 A.2d 953, 961 (Pa. Commw. 2006); see also Paravati v. Port Authority of Alleghany County, 914 A.2d 946 (Pa. Commw. 2006). Plaintiff’s statement of errors complained of on appeal filed on December 23, 2010.

For the following reasons, this court’s ruling should be affirmed.

I. BACKGROUND

On June 30, 2007, plaintiff Joe Wright was a passenger on board a SEPTA bus. On the intersection of 52nd Street and Walnut Street, the SEPTA bus was at a stop. While stopped, the bus was rear-ended. The striking vehicle fled the scene. That vehicle was uninsured.

This court held a hearing to determine whether SEPTA was obligated to plaintiff for uninsured motorist benefits. This court determined that sovereign immunity barred plaintiff’s claim because the bus was not in operation at the time of the accident.

II. DISCUSSION

This court properly ruled that plaintiff’s claim against SEPTA was barred by sovereign immunity. SEPTA is a Commonwealth Agency under the Sovereign Immunity Act, 42 Pa.C.S.A. § 8251. Thus, SEPTA and its employees acting within the course and scope of their employment are immune from a plaintiff’s claims unless it falls within one of the exceptions to sovereign immunity set forth in 42 Pa.C.S.A. § 8522(b). The exceptions to sovereign immunity are (1) the operation of a motor vehicle, (2) acts of health care employees, (3) the care, custody, or control of personal property, (4) a dangerous condition of Commonwealth real estate, (5) a dangerous condition of highways, (6) the care, custody, and control of animals, (7) the sale of liquor at Pennsylvania liquor stores, (8) acts of members of Pennsylvania National Guard, and (9) use of toxoids or vaccines. Pennsylvania courts have consistently held that exceptions to immunity must be narrowly interpreted and strictly construed because of the legislature’s intent to insulate Commonwealth agencies from liability. White v. School District of Philadelphia, 553 Pa. 214, 718 A.2d 778 (Pa. 1998); Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342 (Pa. 1998).

The only exception that plaintiff’s claim could fall into is the operation of a motor vehicle. 42 Pa.C.S.A. §8522(b) (1). To come within this exception, the motor vehicle must be in operation. Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (Pa. 1988). In Love, supra, the Supreme Court held that to operate something means to put in motion. Id. at 375. Pennsylvania courts have consistently followed the Love decision when deciding whether sovereign immunity applies to a case. See White v. School District of Philadelphia, 553 Pa. 214, 718 A.2d 778 (Pa. 1998); see also Berman v. Septa, 698 A.2d 1362 (Pa. Commw. 1997).

Immunity statutes are applicable to claims brought under the Motor Vehicle Financial Responsibility Law (“MVFRL”). The Pennsylvania Commonwealth Court has held that when a plaintiff disembarks from a stopped bus and, subsequently, makes a claim for medical benefits, that claim must fit within one of the statutory exceptions to sovereign immunity. Gielarowski v. Port Authority of Allegheny County, 632 A.2d 1054 (Pa. Commw. 1993)(en banc). The court held that the plaintiff was not entitled to benefits because the claim did not fit within any exception. Specifically, the court stated “a motor vehicle insurance claim against a government agency must satisfy the requirements of the immunity statutes in order for the injured party to recover. This includes the requirement that the injury must fall within one of the applicable immunity exceptions.” Id. at 1056. It is important to note that, under Gielarwoski, the Sovereign Immunity Act, the Tort Claims Act, and the MVFRL can be applied and do not conflict. However, under Gielarwoski, the underlying incident must fall within one of the enumerated exceptions to sovereign immunity.

In the case sub judice, the determining factor is whether or not the bus was in operation. Here, the bus was stopped at the time of the accident. Because the bus was not in operation, no exception to immunity applies. Therefore, plaintiff’s claim is barred under the Sovereign Immunity Act.

Plaintiff relies on Lowery v. Port Authority of Alleghany County, 914 A.2d 953 (Pa. Commw. 2006) and Paravati v. Port Authority of Alleghany County, 914 A.2d 946 (Pa. Commw. 2006). Those cases, however, are factually distinguishable from the case sub judice. In both cases, the Commonwealth Court held that the Commonwealth agency was responsible for paying uninsured motorist benefits to the plaintiffs because the vehicle was moving while the accident occurred, thus falling under an exception to sovereign immunity.

In the case sub judice, SEPTA is not required to pay uninsured motorist benefits because plaintiff’s claim is barred by SEPTA’s sovereign immunity. Plaintiff’s claim does not fall into the “operation of a motor vehicle” exception to sovereign immunity because the vehicle was not in motion at the time the accident occurred. Therefore, plaintiff is not entitled to uninsured motorist benefits from SEPTA.

III. CONCLUSION

Based on the foregoing, this court respectfully requests that the order denying plaintiff’s post-trial motion entered on October 27, 2010 be affirmed.


author: FORD, J.,

text:
    In re Condemnation of Right-of-Way for State Route 0145

      C.P. of Lehigh County,
    no. 2010-C-3404.

      John V Rovinsky, for condemnor.

      Timothy J. Siegfried, for condemnee Lehigh Valley Hospital.

      William G. Malkames, for condemnees Kasych.

      March 4, 2011
   FORD, J.,

In this eminent domain case, the Commonwealth of Pennsylvania, Department of Transportation (PennDOT), filed a declaration of taking seeking to obtain title to certain property and easement rights over other adjacent property located along MacArthur Road in Whitehall Township. Lehigh County. PennDOT intends to use the land seized to make safety improvements along MacArthur Road, widen the road and install a drainage swale along the route.

Charles Kasych, Jr. and Anna Kasych (the Kasychs) and Lehigh Valley Hospital (hospital), property owners affected by this taking, have filed preliminary objections to PennDOT’s declaration of taking. All of the Kasychs’ preliminary objections lack merit and are overruled. Hospital met its burden of demonstrating that PennDOT’s taking of its property was excessive as to a specific portion of its seized property which the litigants called the “bulb.” The preliminary objection as to the bulb is sustained. All other preliminary objections of the hospital are overruled.

PROCEDURAL HISTORY

On July 12, 2010, PennDOT filed a declaration of taking against numerous property owners in Whitehall Township, including hospital and the Kasychs, to improve this stretch of MacArthur Road “for transportation purposes.” (Paragraph 5 of the declaration.)

On August 13, 2010, the Kasychs filed preliminary objections to the declaration of taking. In the preliminary objections, which are permitted under 26 Pa.C.S. § 306, the Kasychs contend that PennDOT is taking their property for an illegal purpose. On September 3, 2010, PennDOT filed an answer to the Kasychs’ preliminary objections.

On August 16, 2010, hospital filed preliminary objections to the declaration of taking. Through the preliminary objections, hospital challenges the extent of PerinDOT’s taking and raises issues about compensation for the taking and security to be posted. PennDOT filed its answer to hospital’s preliminary objections on September 9,2010.

On October 25,2010, the court conducted argument on all of these preliminary objections. Before the argument, the parties developed and submitted a factual record for the disposition of the preliminary objections. The record includes depositions and exhibits.

FINDINGS OF FACT

1. The Kasychs were the owners in fee simple of a 25.366 acre parcel located at 3330 MacArthur Road in Whitehall Township (Kasych property).

2. By filing the declaration of taking on July 12,2010, PennDOT obtained a temporary construction easement over a. 114 acre portion of the Kasych property.

3. PennDOT, a Commonwealth agency, possesses the power of taxation and condemnation.

4. The condemnation of the Kasych property is part of a PennDOT safety improvement project affecting a one-quarter mile corridor of MacArthur Road stretching between that route’s intersection with Eberhart Road and its intersection with Center Street, all in Whitehall Township. (Deposition of Max Inkrote, Jr., on Kasych claim, pp. 14-15) This stretch of MacArthur Road has the highest accident ratio in PennDOT District 5-0. (Deposition of Max Inkrote, Jr., on Kasych claim, p. 11) The high number of accidents on this section of MacArthur Road results from travel at high speeds and the existence of too many options for drivers to turn into and out of driveways and side streets. (Deposition of Max Inkrote, Jr., on Kasych claim, pp. 11-12)

5. PennDOT hired the Larson Design Group (Larson), an engineering firm, to design and oversee these safety improvements to MacArthur Road. Max Inkrote, Jr., an engineer with Larson, oversaw the design of the project. Kenneth Kutchinsky is the PennDOT District 5 -0 Right-of-Way Administrator managing all of the takings associated with the MacArthur Road project.

6. The Kasych property currently has a driveway leading to MacArthur Road. Because a cement barrier separates the northbound and southbound lanes of MacArthur Road in front of the Kasych property, a driver cannot make a turn left onto MacArthur Road from the Kasychs’ driveway. The Kasych driveway is located in close proximity to Municipal Drive, a public road with traffic signals that intersects MacArthur Road. Municipal Drive is located on the opposite side of MacArthur Road from the Kasych driveway, but does not perfectly align with the driveway. (Deposition of Max Inkrote, Jr., on Kasych claim, pp. 15-16) This poorly aligned driveway and road configuration create a dangerous situation.

7. To eliminate this dangerous condition, PennDOT proposed a plan which is part of the safety improvement project to realign the Kasych driveway so that it intersects MacArthur Road directly across from Municipal Drive. Therefore, drivers exiting the Kasych driveway would be able to make right and left turns onto MacArthur Road with the added safety of traffic signals. PennDOT also proposed a general widening of the Kasych driveway from 10 feet wide to 12 feet wide. The driveway would also be widened to 22 feet near its intersection with MacArthur Road to allow drivers entering and exiting the driveway to safely pass each other. (Deposition of Max Inkrote, Jr., on Kasych claim, pp. 18-19)

8. Hospital owned 149.571 acres of land at 3230 MacArthur Road in Whitehall Township (hospital property). The hospital property was located adjacent to the Kasych property and included 125 acres donated to the hospital by the Kasychs.

9. Hospital believed that the Kasychs would eventually donate all of their property along MacArthur Road to hospital. Based on this assumption, hospital considered creating a subdivision on this property. In 2006, hospital hired the Pidcock Company (Pidcock), an engineering firm, to prepare a plan for the potential subdivision. (A copy of the “Kasych Tract Concept Plan” is marked as Exhibit K-l to the depositions) The Pidcock plan envisioned a public road leading to the development in the exact location of the realigned Kasych driveway now proposed by PennDOT. However, because the Kasychs did not donate all of their property along MacArthur Road to hospital, the subdivision plans were never submitted to any municipal body. (Deposition of Glenn Guanowsky, pp. 5-7)

10. Max Inkrote, Jr., the engineer with Larson hired by PennDOT, was unaware of the history of the proposed subdivision on the hospital property at the time he designed the realigned driveway for the Kasych property. (Deposition of Max Inkrote, Jr., on Kasych claim, p. 46) The fact that the hospital had previously formulated a tentative plan to construct a road in the area of the realigned driveway did not influence the designs of the PennDOT safety project on the Kasych driveway. (Deposition of Max Inkrote, Jr., on Kasych claim, pp. 47-48; Deposition of Kenneth Kutchinsky on Kasych claim, p. 10)

11. This PennDOT safety project on the Kasych property did not benefit hospital. Hospital never contacted PennDOT regarding the Kasych taking nor requested that PennDOT effectuate the taking. (Deposition of Glenn Guanowsky, pp. 10-11)

12. The realigned Kasych driveway proposed by PennDOT on the Kasych property does not extend onto the hospital property.

13. PennDOT’s sole purpose in proposing the alterations to the Kasych driveway and MacArthur Road in the area of the Kasych property was to eliminate the hazardous driving conditions in that area. (Deposition of Max Inkrote, Jr., on Kasych claim, pp. 11-13)

14. Through the filing of the declaration of taking on July 12, 2010, PennDOT acquired 3.15 acres of hospital property in fee simple and obtained a drainage easement over another 1.294 acres of hospital property. Thus, PennDOT acquired an interest in 4.444 total acres of hospital property through the taking.

15. PennDOT plans to use approximately one half of the 4.444 acres of hospital property for road widening purposes, while the remaining half will be used for the creation of a drainage swale. (Deposition of Max Inkrote, Jr., on hospital claim, p. 40)

16. PennDOT began planning this MacArthur Road project in 2002. Between 2005 and 2008, Larson engineers met with representatives of PennDOT, the Pennsylvania Department of Environmental Protection (DEP), the Lehigh Valley Planning Commission (LVPC), the Lehigh County Conservation District (LCCD) and Whitehall Township to make this plan feasible with its safety improvements. PennDOT needed approval for the project from all of these entities. (Deposition of Max Inkrote, Jr., on Hospital claim, pp. 16-19)

17. In July of 2008, Mr. Inkrote and other Larson personnel met with representatives of DEP, LVPC, LCCD and other entities to present PennDOT’s plan for a drainage system along MacArthur Road. The plan called for an open swale with two collection basins along the route. This proposed drainage swale would be created in the portion of hospital property over which PennDOT acquired drainage easement rights. Matthew Curry of DEP suggested that Larson eliminate the basins from the design and, instead, include a wider drainage swale. According to Mr. Curry, this larger swale could be used as a storm water management facility as opposed to its being used only as a mechanism for the conveyance of run-off. These changes to the plan suggested by Mr. Curry were intended to improve the water quality, water volume and water rate of run-off entering the drainage system. (Deposition of Max Inkrote, Jr., on hospital claim, pp. 21-22)

18. PennDOT, acting through its Larson engineers, accepted the suggestions of Mr. Curry and proposed an amended plan which eliminated the two drainage basins in favor of the wider drainage swale.

19. PennDOT submitted a drainage plan incorporating Mr. Curry’s recommendations to the required agencies for approval in December of 2008. The plan received final approval from the various agencies in July of 2010. (Deposition of Max Inkrote, Jr., on Hospital claim, pp. 21-28)

20. As a result of PennDOT’s changes to the drainage plan, a .5 acre portion of Hospital property taken by PennDOT, which lies near the traffic “bulb” at Lehigh Street, is no longer needed for PennDOT to construct its drainage system. PennDOT took .3 acres of this portion in fee simple and obtained a drainage easement over the remaining .2 acres. (Deposition of James A. Rothdeutsch, pp. 11-12)

21. DEP and LCCD, both agencies concerned with environmental protection, favor the use of open swales over underground pipes for run-off management purposes. (Deposition of Max Inkrote, Jr., on hospital claim, pp. 33-34) Engineers generally regard open swales as more protective of the environment than underground pipes. (Deposition of Max Inkrote, Jr., on hospital claim, p. 59)

22. It is more costly to install an underground drainage pipe than to create an above-ground, open drainage swale. (Deposition of Max Inkrote, Jr., on hospital claim, pp. 33, 43, 57-58, 65-66) Furthermore, it is more costly to maintain an underground drainage pipe than an above-ground, open swale. (Deposition of Max Inkrote, Jr., on hospital claim, pp. 33, 43)

23. The Larson engineers, in formulating a drainage plain for the MacArthur Road project, never considered using an underground pipe, as opposed to an open swale, to manage storm water run-off. (Deposition of Max Inkrote, Jr., on hospital claim, p. 58) This was due to their understanding that underground pipes are usually placed only when a property owner seeks to preserve the surface area of its property to allow for the construction of a building or a parking lot. (Deposition of Max Inkrote, Jr., on hospital claim, pp. 32-33) The hospital property over which the swale would run is undeveloped land. No definite plans for development of it currently exist.

24. In designing the open swale for the project, Mr. Inkrote considered the cost and efficiency of the open swale design, and the impact on driver safety and traffic patterns that the construction of such a project would necessarily have. (Deposition of Max Inkrote, Jr., on hospital claim, pp. 40-41)

25. With the exception of the “bulb” area identified above in Paragraph 20, all of the hospital property condemned by PennDOT was necessary for the widening of MacArthur Road and the construction of the drainage system proposed by PennDOT. (Deposition of Max Inkrote, Jr., on hospital claim, p. 39)

26. PennDOT is responsible for all future maintenance of the open swale to be located on the hospital property. (Deposition of Max Inkrote, Jr., on hospital claim, p. 34; Deposition of Kenneth Kutchinsky, on hospital claim, p. 10)

27. Hospital hired Pidcock, the engineering firm, for a second purpose, namely, to formulate a drainage plan to offer as an alternative to the open swale design by PennDOT (Pidcock’s earlier work is described in Paragraph 9.) James A. Rothdeutsch, an engineer with Pidcock, presented the alternative design.

28. UnderthePidcockplan,run-offwateronMacArthur Road would be channeled through an underground pipe instead of through an open swale. (Deposition of James A. Rothdeutsch, pp. 11-15) For the underground pipe proposed by Pidcock, PennDOT would condemn only 2.110 acres of hospital property through eminent domain proceedings. According to the Pidcock plan, PennDOT would take all 2.110 acres in fee simple. (Deposition of James A. Rothdeutsch, p. 17)

29. Pidcock’s alternative drainage plan did not sufficiently incorporate safety considerations or the impact of the . design on traffic control. (Deposition of James A. Rothdeutsch, pp. 54-55) Pidcock did not address how the installation of an underground pipe would temporarily affect traffic lanes in the area of the installation. (Deposition of James A. Rothdeutsch, p. 52)

30. Pidcock’s primary consideration in preparing the alternative plan for hospital was to design a drainage system that would necessitate the smallest possible taking of hospital property through eminent domain proceedings. (Deposition of James A. Rothdeutsch, pp. 52-53)

DISCUSSION AND CONCLUSIONS OF LAW

Preliminary objections in eminent domain proceedings serve a purpose different from preliminary objections filed in other civil actions. In re a Condemnation Proceeding by South Whitehall Township, 822 A.2d 142, 143 n.3 (Pa.Commw. 2003). “Preliminaiy objections under the Eminent Domain Code are intended as a procedure to resolve expeditiously all legal and factual challenges to the declaration of taking before the parties move to the second distinct proceeding of quantifying damages.” In re Condemnation by Department of Transportation, of Right of Way for State Route 79, Section W10, 568 Pa. 546, 555-56, 798 A.2d 725, 731 (2002).

The Kasychs ’Preliminary Objections

The Kasychs assert only one argument in their preliminary objections. They contend that PennDOT impermissibly seized their private property for the purpose of conferring a private benefit on hospital. They allege that PennDOT seeks to realign their driveway with the Municipal Drive intersection because PennDOT intends to eventually convert the driveway into a public road providing access to a future subdivision on hospital property. Contrary to this assertion, the evidence of record indicates that PennDOT seized the Kasychs’ property for legitimate public purposes.

A government entity such as PennDOT is authorized to seize private property through eminent domain proceedings only where the seizure serves a public purpose. See In re Forrester, 575 Pa. 365, 368, 836 A.2d 102, 104 (2003); Pa. Const, art. I, § 10; and U.S. Const, amend. V. Conversely, if a government entity takes private property for the purpose of conferring a private benefit, the taking can be voided. Kelo v. City of New London, 545 U.S. 469, 477, 125 S.Ct. 2655, 2661 (2005). The Kasychs bear the burden of demonstrating that PennDOT abused its discretion by taking for an improper purpose. See Appeal of Octorara Area School District, 556 A.2d 527, 529 (Pa.Commw. 1989). The burden of proving an abuse of discretion in an eminent domain action is a heavy one. In re School District of Pittsburgh, 430 Pa. 566, 575, 244 A.2d 42, 46(1968).

There is no evidence to support the Kasychs’ contention that PennDOT took their property to impermissibly benefit the private interests of hospital. In 2006, hospital investigated the possibility of developing a subdivision on its property adjacent to the Kásych property. A plan for this proposed subdivision included the construction of a public road in the exact area of the realigned Kasych driveway now proposed by PennDOT. However, this tentative subdivision plan was never submitted to any municipal body. The Larson engineer managing the safety improvements on MacArthur Road for PennDOT was unaware of the hospital’s prior development plans when he designed the realigned driveway. Further, it appears that no hospital personnel made an approach to PennDOT for the realignment. Finally, the realigned Kasych driveway proposed by PennDOT would exist only on the Kasych property and would not extend to hospital property. Thus, there is no believable evidence that the proposed realignment of the Kasych driveway would provide a private benefit for hospital.

Moreover, the evidence before the court demonstrates that PennDOT is temporarily taking the Kasych property for a legitimate public purpose. As was mentioned, the area of MacArthur Road around the Kasych property has the highest accident ratio in PennDOT District 5-0. PennDOT personnel involved in this safety project convincingly testified that the proposal to realign the Kasychs’ driveway with the signaled intersection at Municipal Road was done solely to address the obvious dangers presented by the current road configuration. No evidence of record contradicts this stated public purpose.

For all of these reasons, the Kasychs’ preliminary objections lack merit and are overruled.

Hospital’s Preliminary Objections

Through its preliminary objections, hospital contends that PennDOT abused its discretion by seizing more hospital land than was necessary to accomplish its stated purposes. Further, the hospital raises issues related to compensation for the taking and the adequacy of the bond securing the taking.

Flospital’s first preliminary objection is made under 26 Pa.C.S. § 306(a)(3)(i), which allows a condemnee to challenge “the power or right of the condemnor to appropriate the condemned property.” Hospital contends that PennDOT abused its discretion and exceeded its power by taking more hospital property than was necessary to widen MacArthur Road and create an appropriate drainage system for run-off water.

“The sole limitation on the exercise of a condemnor’s power is that it may not appropriate a greater amount of property than is reasonably required for the contemplated purpose.” In re Waite, 641 A.2d 25, 28 (Pa.Commw. 1994). While the quantum of land to be acquired is generally a matter left to the discretion of the condemnor, such discretion is subject to reasonable limitation. Truitt v. Borough of Ambridge Water Authority, 389 Pa. 429, 432, 133 A.2d 797, 798 (1957). Hospital bears the heavy burden of demonstrating that PennDOT abused its discretion. Appeal of Octorara Area School District, 556 A.2d at 529; and In re School District of Pittsburgh, 430 Pa. at 575, 244 A.2d at 46.

Through reliance on the drainage plan of Pidcock, hospital argues that PennDOT could have met all of its goals while taking only 2.110 acres of hospital land, instead of the 4.444 acres seized.

The evidence indicates that PennDOT acted reasonably in selecting an above-ground, open swale to address water run-off on MacArthur Road. Over a span of years, engineers from Larson, PennDOT’s engineering firm, met with representatives from the various agencies that were responsible for approving the final drainage plan. The Larson engineers considered the suggestions of these agency representatives when designing the open swale drainage system. PennDOT’s finalized plan for an open swale submitted to the agencies was based on the recommendations of a DEP representative, Matthew Curry.

Additionally, PennDOT’s decision to choose an open swale as a drainage system adheres to accepted standards used by engineers working in the field of run-off maintenance. Both DEP and LCCD favor the use of open swales over underground pipes for run-off management purposes because swales are considered more environmentally friendly. Further, the costs for creating and maintaining a swale are lower than the costs for installing and maintaining a drainage pipe. Also, it is customary for engineers to design a drainage system with an underground pipe only where there is a need to preserve the surface area of the property in question. The property taken from the hospital is undeveloped land. No plans exist for development necessitating the preservation of surface area on the seized land. After consideration of all of these factors, it is apparent that PennDOT’s decision to utilize an open swale drainage system was reasonable and did not amount to an abuse of discretion.

There appear to be oversights in the alternative drainage plan proposed by Pidcock. The deposition testimony of Mr. Rothdeutsch, a Pidcock engineer, revealed that the firm did not consider the impact that the installation of an underground pipe would have on traffic control. Pidcock did not sufficiently consider issues regarding roadway safety when creating its drainage plan. All said, the Pidcock Company’s plan focuses on the design of a drainage system while other significant considerations were necessary. Conversely, the PennDOT plan encompasses both a drainage system and the road safety improvements that are the underlying motivation for the entire MacArthur Road project.

The evidence also indicates that PennDOT needed to seize almost all of the 4.444 acres of hospital property to properly widen MacArthur Road and to create the drainage swale. Max Inkrote, Jr. testified at his deposition that all of the land seized from hospital was to be used in the MacArthur Road safety project. (Deposition of Max Inkrote, Jr., on hospital claim, p. 39). Mr. Inkrote explained that PennDOT would need roughly one half of the 4.444 acres of hospital property taken for road widening purposes, while the remaining half was needed for the creation of the drainage swale. (Deposition of Max Inkrote, Jr., on hospital claim, p. 40) Taken as a whole, his explanations were logical and persuasive on the necessity of taking almost the entirely of the 4.444 acres. Thus, the court finds that PennDOT did not abuse its discretion in taking the vast majority of hospital property seized.

On the other hand, hospital demonstrated that .5 acres of hospital property seized by PennDOT near the traffic “bulb” where Lehigh Street meets MacArthur Road is no longer needed by PennDOT to construct the open swale drainage system. (Deposition of James A. Rothdeutsch, pp. 11-12) PennDOT’s evidence is scant and vague on this topic. Thus, PennDOT abused its discretion in including the “bulb” in its taking so hospital’s preliminary objection to the taking of the bulb is sustained. That part of hospital’s property shall not be included in this taking.

Hospital next claims that PennDOT failed to justly compensate hospital for the taking of its property along MacArthur Road. Issues on compensation in an eminent domain proceeding may not be raised by preliminary objections so these preliminary objections are overruled. 26 Pa.C.S. § 306(b); and Chester Township v. Department of Transportation, 339 A.2d 892 (Pa.Commw. 1975).

Finally, hospital asserts that PennDOT failed to post sufficient security for the taking. However, 26 Pa.C.S. § 303(b)(1) states that “[wjhere a condemnor has the power of taxation, it shall not be required to file a bond with a declaration of taking.” PennDOT operates as an agency of the Commonwealth of Pennsylvania, an entity with the power of taxation. Because the Commonwealth possesses the power of taxation, its agency, PennDOT, is not required to post a bond when filing a declaration of taking. Therefore, this preliminary objection is overruled.

In sum, hospital met its burden of demonstrating that PennDOT abused its discretion in taking the .5 acre “bulb” of hospital property near where Lehigh Street meets MacArthur Road. This taking is excessive and is therefore voided. All other preliminary objections of hospital are overruled.


author: BAER, Member,

text:
    Office of Disciplinary Counsel v. Frank

      Disciplinary Docket no. 232 DB 2010.
    March 2, 2011
   BAER, Member,

The three-member Panel of the Disciplinary Board of the Supreme Court of Pennsylvania, consisting of board members Mark S. Baer, Sal Cognetti, Jr., and Charlotte S. Jefferies, has reviewed the joint petition in support of discipline on consent filed in the above-captioned matter on November 17, 2010.

The panel approves the joint petition consenting to a one year and one day suspension and recommends to the Supreme Court of Pennsylvania that the attached petition be granted.

The panel further recommends that any necessary expenses incurred in the investigation and prosecution of this matter shall be paid by the respondent-attorney as a condition to the grant of the petition.

JOINT PETITION IN SUPPORT OF DISCIPLINE ON CONSENT PURSUANT TO Pa.R.D.E. 215(d)

Petitioner, theOfficeofDisciplinaryCounsel(hereinafter, “ODC”) by Paul J. Killion, Chief Disciplinary Counsel, and Harold E. Ciampoli, Jr., Disciplinary Counsel and James C. Schwartzman, Esquire, counsel for respondent, and respondent, Gary Alan Frank (hereinafter “respondent”), respectfully petition the Disciplinary Board in support of discipline on consent, pursuant to Pennsylvania Rule of Disciplinary Enforcement (“Pa.R.D.E.”) 215(d), and in support thereof state:

1. Office of Disciplinary Counsel, whose principal office is situated at Disciplinary Board Office of Chief Counsel, Pennsylvania Judicial Center, Suite 2700, 601 Commonwealth Avenue, Harrisburg, PA 17106, is invested, pursuant to Pa.R.D.E. 207, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid enforcement rules.

2. Respondent Gary Alan Frank was admitted to practice law in the Commonwealth on November 28,1995. respondent was transferred to inactive status by order of the Supreme Court of Pennsylvania dated December 1, 2002. He is presently on administrative suspension. His last registered address is Suite 213, One Bala Plaza, Bala Cynwyd, Pennsylvania 19004.

3. Respondent issubjecttothedisciplinaryjurisdiction of the Disciplinary Board of the Supreme Court.

SPECIFIC FACTUAL ALLEGATIONS ADMITTED

4. Respondent’s affidavit stating, inter alia, his consent to the recommended discipline is attached hereto as Exhibit A.

5. In August 1999, F. Harry Speiss, Esquire, filed a divorce complaint on behalf ofhis client, Walter Kemmerer, against Dolores Smith Kemmerer, to Case No. 99-11132, in the court of Common Pleas of Delaware County.

6. In September 1999, Ms. Kemmerer retained the services of Jay D. Barsky, Esquire.

7. Mr. Barsky requested respondent to assist him in representing Ms. Kemmerer in regard to the equitable distribution portion of the case.

8. Respondent was not then, nor has he since been, in the active practice of law. This was the one and only case he was involved with.

9. Mr. Barsky continued to represent Ms. Kemmerer for several years, went on voluntary inactive status in July 2004, and died in November 2008.

10. Between 2000 and 2002, respondent took steps to represent Ms. Kemmerer in her domestic case by, inter alia:

a. Working with Mr. Barsky;
b. Communicating with Mr. Spiess; and
c. Communicating with Ms. Kemmerer.

11. By order effective December 1,2002, the Supreme Court of Pennsylvania transferred respondent to inactive status pursuant to Rule 219, Pa.R.D.E., because respondent failed to file an annual PA Attorney Fee Form and failed to pay his annual license fee.

12. Respondent failed to comply with the notification and filing requirements of Rule 217 (a), (b), (c), (e), (h), and (i), Pa.R.D.E.

13. Respondent did not notify Ms. Kemmerer of his transfer to inactive status and his inability to represent her.

14. Respondent did not notify Mr. Spiess or the Court of Common Pleas of Delaware County of his transfer to inactive status and his inability to continue to represent Ms. Kemmerer.

15. Notwithstanding his transfer to inactive status effective December 1, 2002, between 2003 and 2006 respondent continued to represent Ms. Kemmerer as evidenced by, inter alia:

a. In 2004, respondent communicated with Mr. Spiess and the court concerning the equitable distribution of assets in the case and obtained several continuances of the equitable distribution hearing.
b. In 2005, respondent participated in the equitable distribution proceedings by filing a trial memorandum and appearing at a January 5, 2005 hearing.
c. By letter dated August 23, 2005, respondent communicated with Ms. Kemmerer concerning the resolution of her divorce proceedings.
d. Respondent received from the court a December 21, 2005 equitable distribution order.
e.In 2006, respondent filed a motion for reconsideration and clarification of the court’s December 21, 2005 order.
f. Respondent received a copy of Mr. Spiess’s appeal to Superior Court and his name was entered as counsel of record for Ms. Kemmerer on the Superior Court docket.
g. In May, June, September, and November 2006, respondent exchanged e-mails with Ms. Kemmerer concerning the status of her case.
h. In a November 13, 2006 e-mail to Ms. Kemmerer, respondent stated that he would inform everyone that he was no longer involved in her case.
i. Respondent failed to inform Mr. Spiess and the court that he was not going to continue to represent Ms. Kemmerer.

16. Respondent’s letters to opposing counsel, the court, and Ms. Kemmerer contained the letterhead “Law Office Gary Alan Frank” and referred to him as a licensed member of the Pennsylvania Bar.

17. Respondent’s pleadings filed with the court listed his attorney registration number and identified respondent as “Esquire” and as “attorney for defendant.”

18. Respondent never received any fee for the work he performed.

19. Respondent’s motives were to help a disabled lawyer and a client who requested his help.

SPECIFIC RULES OF PROFESSIONAL CONDUCT AND DISCIPLINARY ENFORCEMENT VIOLATED

Respondent violated the following Pennsylvania Rules of Professional Conduct:

a. RPC 1.16(a)(1), which states that except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct or other law;
b. RPC 5.5(a), which states that a lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so;
c. former RPC 5.5 (b) [effective 4-1-88], which states that a lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction;
d. RPC 7.1, which states that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
e. RPC 7.5(a), which states that a lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1;
f. RPC 8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and
g. RPC 8.4(d), prohibiting a lawyer from engaging in conduct that is prejudicial to the administration of justice.

Respondent violated the following Pennsylvania Rules of Disciplinary Enforcement:

a. Pa.R.D.E. Rule 217(b), which states that a formerly admitted attorney shall promptly notify, or cause to be notified, by registered or certified mail, return receipt requested, all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceeding, of the...transfer to inactive status and consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the...transfer to inactive status. The notice to be given to the client shall advise the prompt substitution of another attorney or attorneys in place of the formerly admitted attorney. In the event the client does not obtain substitute counsel before the effective date of the disbarment, suspension, administrative suspension or transfer to status, it shall be the responsibility of the formerly admitted attorney to move in the court or agency in which the proceeding is pending for leave to withdraw. The notice to be given to the attorney or attorneys for an adverse party shall state the place of residence of the client of the formerly admitted attorney;
b. Pa.R.D.E. 217(c)(2), which states that a formerly admitted attorney shall promptly notify, or cause to be notified, of the...transfer to inactive status, by registered or certified mail, return receipt requested all other persons with whom the formerly admitted attorney may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that he or she continues as an attorney in good standing;
c. Pa.R.D.E. Rule 217(e), which states that within ten days after the effective date of the...transfer to inactive status order, the formerly admitted attorney shall file with the Board a verified statement showing: (1) that the provisions of the order and these rules have been fully complied with; and (2) all other state, federal and administrative jurisdictions to which such person is admitted to practice. Such statement shall also set forth the residence or other address of the formerly admitted attorney where communications to such person may thereafter be directed;
d. Pa.R.D.E. 217(j)(l), which states that all law-related activities of the formerly admitted attorney shall be conducted under the supervision of a member in good standing of the Bar of this Commonwealth who shall be responsible for ensuring that the formerly admitted attorney complies with the requirements of this subdivision (j); and
e. Pa.R.D.E. 217(j) (4) (ii), (iii), (iv), (v), (vi), and (vii) which states that without limiting the other restrictions in this subdivision (j), a formerly admitted attorney is specifically prohibited from engaging in any of the following activities: (ii) performing any law-related services from an office that is not staffed by a supervising attorney on a full time basis; (iii) performing any law-related services for any client who in the past was represented by the formerly admitted attorney; (iv) representing himself or herself as a lawyer or person of similar status; (v) having any contact with clients either in person, by telephone, or in writing, except as provided in paragraph (3); (vi) rendering legal consultation or advice to a client; and (vii) appearing on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, hearing officer or any other adjudicative person or body.

SPECIFIC RECOMMENDATION FOR DISCIPLINE

1. Petitioner and respondent jointly recommend that the appropriate discipline for respondent’s admitted misconduct is a suspension from the practice of law for one year and one day.

2. Respondent hereby consents to the discipline being imposed upon him by the Supreme Court of Pennsylvania. Attached to this petition is respondent’s executed affidavit required by Rule 215(d), Pa.R.D.E., stating that he consents to the recommended discipline and including the mandatory acknowledgements contained in Rule 215(d) (1) through (4), Pa.R.D.E.

3.In support of petitioner and respondent’s joint recommendation, it is respectfully submitted that:

(a) There are several mitigating circumstances:
(i) respondent has admitted engaging in misconduct and violating the charged Rules of Professional Conduct and Rules of Disciplinary Enforcement;
(ii) respondent has cooperated with Petitioner, as is evidenced by respondent’s admissions herein, and his consent to receiving a suspension of one year and one day; and
(iii) respondent has no prior record of discipline.

4. Although there are no per se rules of discipline, numerous cases over recent years indicate that a suspension for a year and a day is the most frequently imposed sanction for practicing law while on inactive status. A sampling of cases with similar fact patterns supports the recommendation in this case for a suspension of a year and one day. See, Office of Disciplinary Counsel v. Harry Curtis Forrest, Jr., No. 134 DB 2003, D.Bd. Rpt. 12/30/2004 (S.Ct. order 3/24/2005) (year and a day suspension imposed on respondent who continued to practice law on behalf of two clients and wrote to a district justice on legal letterhead after being placed on inactive status); Office of Disciplinary Counsel v. Delancey W. Davis, No. 17 DB 2004, D.Bd. Rpt. 4/28/2005 (S.Ct. order 7/22/2005) (respondent who was on inactive status and who represented a client in three different suits by actions including identifying himself as the attorney for the client, appearing at arbitrations and in court, filing documents and engaging in settlement discussions, received a year and a day suspension); Office of Disciplinary Counsel v. Chauncey Harris, No. 150 DB 2002, D.Bd. Rpt. 4/16/2004 (S.Ct. order 6/15/04) (respondent who engaged in unauthorized practice limited to one client matter and had a history of discipline of two informal admonitions received a year and a day suspension); and Office of Disciplinary Counsel v. Thomas Quirk Harrigan, No. 123 DB 2000, D.Bd. Rpt. 9/16/2002 (S.Ct. order 11/25/2002) (one year and a day suspension imposed on respondent with a history of discipline, who failed to withdraw his appearance in one matter and continued to represent the client, settling the case after he had been transferred to inactive status for failure to meet his C.L.E. requirements).

Wherefore, joint petitioners respectfully pray that Your Honorable Board approve this petition; and enter an appropriate order imposing a one year and one day suspension. Costs shall be paid by the respondent.

ORDER

And now, March 2, 2011, upon consideration of the recommendation of the three-member panel of the disciplinary board dated January 3,2011, the joint petition in support of discipline on consent is hereby granted pursuant to Rule 215(g), Pa.R.D.E., and it is

Ordered that Gary Alan Frank is suspended on consent from the Bar of this Commonwealth for a period of one year and one day and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

Exhibit A

COMMONWEALTH OF PENNSYLVANIA COUNTY OF MONTGOMERY

GARY ALAN FRANK, being duly sworn according to law, deposes and hereby submits this affidavit consenting to the recommendation of a suspension of one year and one day in conformity with Pa.R.D.E. 215(d) and further states as follows:

1. He is an attorney admitted in the Commonwealth of Pennsylvania, having been admitted to the bar on November 28, 1995.

2. He desires to submit a joint petition in Support of Discipline on Consent pursuant to Pa.R.D.E. 215(d).

3. His consent is freely and voluntarily rendered; he is not being subjected to coercion or duress, and he is fully aware of the implications of submitting this affidavit.

4. He is aware that there are allegations that he has been guilty of misconduct as set forth in the joint petition in support of discipline on consent of which this affidavit is attached hereto.

5. He acknowledges that the material facts set forth in the joint petition are true.

6. He submits the within affidavit because he knows that if charges predicated upon the matter under investigation were filed, he could not successfully defend against them.

7. He acknowledges that he is fully aware of his right to consult and employ counsel to represent him in the instant proceeding. He has retained, consulted and acted upon the advice of counsel, James C. Schwartzman, Esquire, in connection with his decision to execute the within j oint petition.

It is understood that the statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904 (relating to unsworn falsification to authorities).

Signed this 4th day of November, 2010

Sworn to and subscribed before me this 4th day of November, 2010


author: HODGE, J.,

text:
    In the Interest of A. Johnson

      C.P. of Lawrence County,
    no. 32 of 2010, JUV.

      Daniel Soom, assistant district attorney, for Commonwealth.

      Larry J. Puntureri, for defendant.
    March 7, 2011
   HODGE, J.,

This matter was before the court for an adjudication hearing in which the juvenile, A. Johnson, has been charged with possession of firearm, firearms not to be carried without a license (18 Pa.C.S.A. § 6106(a)(1)) and receiving stolen property (18 Pa.C.S.A. 3925(a)).

On March 7, 2010, Officer Buswell of the New Castle Police Department was traveling northbound on Highland Avenue when he noticed a purple Sunfire in the parking lot of Mom’s Pizza. Officers were previously informed that such a vehicle had been stolen and were required to be on the lookout for the same. After notifying other units of his observation, Officer Buswell confronted the vehicle to investigate further.

There were four occupants in the vehicle, all of which were directed to keep their hands visible until backup arrived. Other officers then arrived and assisted Officer Buswell in removing the passengers from the Sunfire. As A. Johnson (hereinafter “juvenile”) was exiting the vehicle, Officer Buswell observed a stainless steel handgun under his buttocks. The handgun was then run through the National Crime Information Center; although the handgun was not reported stolen, it was registered to Patricia Haines.

Officer Buswell later called local police agencies to investigate the situation regarding the handgun discovered under the buttocks of the juvenile. He discovered that on May 17,2009, Ms. Haines’ residence was burglarized and that a .38 caliber Derringer was stole. The handgun found in the Sunfire matched this description. The juvenile was currently on probation. Allegations of delinquency were filed then on March 8, 2010.

The offense of possession of firearm, firearms not to be carried without a license is governed by § 6106 of the Crimes Code. 18 Pa.C.S.A. § 6106 (a)(1) states:

Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree. 18 Pa.C.S.A. § 6106(a)(1).

In order to convict a person for carrying a firearm without a license, the Commonwealth must prove: “1) that the weapon was a firearm; 2) that the firearm was unlicensed; and 3) that where the firearm was concealed on or about the person, it was outside his home or place of business.” Commonwealth v. Bavusa, 750 A.2d 855, 857 (Pa. Super. 2000), affirmed, 832 A.2d 1042 (2003) (citations omitted). The facts establish that the juvenile was not in physical possession of the handgun, and consequently, the sole issue becomes whether the evidence is sufficient to establish that he had constructive possession of the gun. Commonwealth v. Gutierrez, 969 A.2d 584, 590 (Pa. Super. 2009) (citing Commonwealth v. Heidler, 741 A.2d 213, 215 (Pa. Super. 1999). For the Commonwealth to establish that the juvenile had constructive possession over the handgun, it must be proven that the juvenile had the ability to consciously exercise control over the handgun, as well as the intent to exercise such control. Gutierrez, 969 A.2d at 590 (citing Commonwealth v. Sanes, 955 A.2d 369 (Pa. Super. 2008). Intent to maintain a conscious control can be inferred from the totality of the circumstances. Commonwealth v. Valette, 513 Pa. 384, 389, 613 A.2d 548, 550 (1992).

In the case of Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004), the defendant was convicted of carrying a firearm without a license and theft by receiving stolen property. On appeal, the defendant argued that there was insufficient evidence to sustain a conviction for carrying a firearm without a license because, according to the defendant, the Commonwealth had failed to establish that he had constructive possession over the gun. Parker, 847 A.2d at 750. In its analysis, the Parker court held that constructive possession is an inference taken from a set of facts that possession was more likely than not. Id. The court went on to define constructive possession as “the power to control the contraband and the intent to exercise that control.” Id. (quoting Commonwealth v. Thompson, 779 A.2d 1195, 1199 (Pa. Super. 2001)).

The Superior Court in Parker determined that based on the facts that the defendant was the sole occupant of the vehicle at the time it was stopped, that a large portion of the gun was visibly exposed to the defendant, and the defendant’s admission to the gun being his, constructive possession was established. 847 A.2d at 751.

Additionally, this court looks to the case of Commonwealth v. Boatwright, 453 A.2d 1058 (Pa. Super. 1982). In Boatwright, the defendant was convicted for the crime of carrying firearm without license; defendant subsequently appealed. The evidence presented by the Commonwealth established that the arresting officer observed the defendant seated in the front passenger seat of the vehicle making gestures or movements towards his left rear. When the officer opened the door of the automobile and asked appellant to get out, he shined a light onto the left rear floor of the vehicle and saw a gun. Id.

The Boatwright court held that for the Commonwealth to successfully prove joint constructive possession, it must present evidence to show that the defendant had both power to control the firearm and intent to exercise that control; the mere presence of the gun at the scene where it was found is insufficient to establish constructive possession. Id. at 910 (citing Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968). As a result of the court’s holding, the defendant’s sentence was subsequently reversed.

After careful consideration of the evidence presented and consistent with the case law set forth in the preceding discussion, this court finds that in the case sub judice, there is insufficient evidence to prove that the juvenile had constructive possession of the handgun in question. Specifically, the Commonwealth has failed to establish any intent by the juvenile to exercise control of the weapon. At the first portion of the adjudication hearing, Officer Buswell testified to seeing the handgun on the seat were the juvenile had been sitting after the juvenile exited the vehicle. (N.T. Sept. 28, 2010, p. 13-14) Although the weapon was located in very close proximity to the juvenile, this presence alone is insufficient. There was no indication that the juvenile gestured underneath him, hesitated to exit the vehicle or conceal the weapon; such additional evidence may have persuaded this court to rule differently. Additionally, the court considered the facts that the vehicle was stolen, and not familiar to the juvenile and that there were three other individuals sitting in the vehicle immediately before the handgun was discovered.

In light of the court’s disposition of the charge of possession of firearm, firearms not to be carried without a license, the second charge of receiving stolen property must be dismissed. Commonwealth v. Brady, 560 A.2d 802 (Pa. Super. 1989)(to establish that defendant received or possessed stolen property, where the Commonwealth proceeds under a theory of joint or constructive possession, it must establish that defendant exercised conscious control or dominion over the stolen property).

ORDER OF COURT

And now, March 7,2011, this matter having been before the court for an adjudication hearing on September 28, 2010 and on March 2, 2011 with Daniel Soom, Esquire, appearing on behalf of the Commonwealth and Larry J. Puntureri, Esquire, appearing on behalf of the juvenile, A. Johnson, and the court having had the opportunity to make a thorough review of the record in the above captioned case, it is hereby ordered and decreed as follows:

1. In accordance with the attached opinion, the juvenile delinquency petition is hereby dismissed.

2. The juvenile shall remain in his current placement through Lawrence County Juvenile Probation.

3. The Office of the Prothonotary shall serve copies of this order and opinion upon counsel of record and the Juvenile Probation Office of Lawrence County.