text:
    Wells Fargo Bank v. Jenkins

      Amy H. Marshall and Mary L. Harbert-Bell, for plaintiff.

      Florence Q. Jenkins, pro se.
    March 10, 2009
   KISTLER, J.,

Presently before this court is the motion for summary judgment filed by Wells Fargo Bank (plaintiff) against Florence Q. Jenkins (defendant). For the following reasons, plaintiff’s motion is denied.

DISCUSSION

In Pennsylvania, motions for summary judgment are governed by the well-established standard set forth below:

“Pennsylvania law provides that summary judgment may be granted only in those cases in which the record clearly shows that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. The moving party has the burden of proving that no genuine issues of material fact exist. In determining whether to grant summary judgment, the trial court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Thus, summary judgment is proper only when the uncontroversial 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. In sum, only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment.” Barnish v. KWI Building Co., 916 A.2d 642, 645 (Pa. Super. 2007).

Having reviewed the record, the court determines that plaintiff has failed to demonstrate that no genuine issue of material fact exists. The court makes this determination upon review of Pa.R.C.P. 1147. This rule governs the requirements that a plaintiff must set forth in the complaint for an action of mortgage foreclosure. In pertinent part, Pa.R.C.P. 1147(a)(5) requires that the plaintiff set forth in the complaint, “an itemized statement of the amount due.” Plaintiff alleges in paragraph 8 of the complaint, the following with respect to this requirement:

“The following amounts are due on the mortgage and note:
“Balance of Principle $ 160,816.82
“Accrued by unpaid interest from 11/1/06 to 10/29/07 @ 13.950% per annum ($62.32 per diem) $ 22,622.16
“Accrued late charges $ 1,368.96
“Title search fees $ 350.00
“Reasonable attorney’s fees $ 1,250.00
“Total as of 10/29/07 $ 186,407.94
“Plus, the following amounts accrued after October 29, 2007:
“Interest at the rate of 13.950 per cent per annum (62.32 per diem);
“Late Charges of $114.08 per month.”

Plaintiff argues that although defendant purports to deny the above mentioned paragraph of the complaint, defendant admits all other material facts of the complaint. This includes admitting the existence of the loan, failure to make payments over an extended period of time and admitting that she is in default of the mortgage. Therefore, plaintiff argues, the defendant’s denial of the amount due is a “bald, unsupported assertion of conclusion accusations which cannot create genuine issues of material fact.”

This court does not agree. In Mellon Bank N.A. v. Joseph, 267 Pa. Super. 307, 406 A.2d 1055 (1979), our Superior Court rejected a nearly identical argument to the one plaintiff now brings before this court. The following portion of the Mellon Bank decision effectively describes why plaintiff’s motion for summary judgment must fail:

“Finally, paragraph 7 of the complaint alleged an amount due, and broke the amount down into principal, escrow deficiency, late charges, interest, and attorney’s fee. Appellant answered that after reasonable investigation, he was without sufficient information to admit or deny the averments. The bank argues that this allegation of ignorance is unsupportable for several reasons: because appellant pleaded that he had tendered the full amount, and therefore must know it; because appellant is an attorney who ‘negotiated, executed and made (the) payments,’ brief for appellee at 5; and because a reasonable investigation would have disclosed the amount due. It is true that a defendant may not rely on Rule 1029(c) (1) to excuse a failure to make a specific denial when it is clear that he must know whether a particular allegation is true or false. Scales v. Sheffield Fabricating & Machine Co., 258 Pa. Super. 568, 393 A.2d 680 (1978); Cercone v. Cercone, [254 Pa. Super. 381, 386 A.2d 1 (1978)]. Here, however, without amortization tables, a mortgag- or — even an attorney — is not likely to know the exact amount of principal due. Late charges, escrow payments, interest, and attorney’s fees could well be similarly beyond the mortgagor’s knowledge; they will in any event be better known to the mortgagee. The mere fact, if it be a fact, that appellant tendered a certain amount should not bind him in court; his cooperation was as likely to have been based on a desire to settle the matter, as on the knowledge of the correctness of the figures.” Mellon Bank N.A. v. Joseph, 267 Pa. Super. 307, 314, 406 A.2d 1055, 1058 (1979).

The information provided by plaintiff in its complaint is nearly identical to the information provided by the plaintiff in Mellon Bank. Where a defendant avers in good faith that he is without knowledge or information sufficient to form a belief regarding the amount due, penalties and additional fees alleged by a mortgagee, this court will not find that a defendant possesses this knowledge by simply admitting that he is in default of the mortgage. The Superior Court offers sage advice regarding what information a lender should provide in order to prevail on a motion for summary judgment.

Accordingly, plaintiff’s motion for summary judgment is denied as the court finds there exists a genuine issue of material fact relating to the amount due, the interest and additional fees associated with the mortgage foreclosure.

ORDER

And now, March 10,2009, plaintiff’s motion for summary judgment is hereby denied.


source: Caselaw Access Project

author: MILLER, J.,

license: Public Domain

text:
    Fenlon v. James

      Angel Mae T. Webby, for plaintiff.

      Thomas P. Clark, for defendants.
    September 19, 2008
   MILLER, J.,

We have before us a motion for summary judgment filed by Mary Kay James, the defendant.

The complaint alleges that the defendant lived on Cherry Hill Lane in Brodheadsville, Monroe County, Pennsylvania with her children, three dogs and three cats. She placed her house for sale and listed it with Re/Max Real Estate. On June 1,2005, plaintiff, a real estate agent, was scheduled to show the defendant’s house. He mistakenly parked at a house across the street that had a for sale sign, believing that house to be the plaintiff’s property. Upon realizing his mistake, he walked across the road and up defendant’s driveway. He alleges that he knocked on a window to tell defendant of his arrival and then saw two dogs come out of the front door of the house towards him. He claims that he started running away, tripped and fell, tearing his Brooks Brothers shirt, and broke his arm.

Defendant admits she knew of the appointment, saw plaintiff pull into the opposite driveway but paid no more attention to him. She testified in her deposition that she didn’t see him at the window but the next thing she knew was her 5-year-old son had gone to the front door, opened it and two of her three dogs had run out She caught the third one before it got out, called to the others who came back in the house, and had no knowledge of the incident until the police arrived at her door.

The defendant filed this motion for summary judgment on August 15, 2008 arguing that plaintiff’s claim of negligence is not legally supported, that the plaintiff has also failed to establish a claim for defendant’s violation of section 3 P.S. 459-101 of the Dog Law and that the plaintiff is unable to demonstrate that punitive damages are warranted in this matter. We heard oral arguments on September 8, 2008 and have reviewed the briefs of the parties and the extensive deposition testimony provided by both parties.

DISCUSSION

Pursuant to Pa.R.C.P. 1035.2, summary judgment is appropriate:

“(1) 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
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

The inquiry in deciding a motion for summary judgment “is whether the admissible evidence in the record, in whatever form, from whatever source, considered in the light most favorable to the respondent to the motion, fails to establish aprima facie case or defense.” See Liles v. Balmer, 389 Pa. Super. 451, 454, 567 A.2d 691, 692 (1989). A party opposing a motion for summary judgment, in order to make an evidentiary showing sufficient to advance the party to trial, must show that it has a plausible ground for maintaining the cause of action. Community Medical Services v. Local 2665, 292 Pa. Super. 238, 437 A.2d 23 (1981). While the non-movant is not required to present its entire case in opposing a motion for summary judgment, it must present sufficient evidence to demonstrate that the moving party is not entitled to judgment as a matter of law. Brecher v. Cutler, 396 Pa. Super. 211, 578 A.2d 481 (1990).

Defendant asks that summary judgment should be granted as to Count I of plaintiff’s complaint alleging negligence on the basis that plaintiff has failed to demonstrate that defendant knew, or should have known, that her dogs had vicious propensities.

The law is clear that the owner of a dog is not responsible for the consequences of his dog’s actions if he has no reason to know of the viciousness or dangerous propensities of the dog beforehand. Snyder v. Milton Auto Parts Inc., 285 Pa. Super. 559, 428 A.2d 186 (1981). A reasonable jury need only be able to arrive at reasonable inferences that the animal was likely to commit the act of the kind complained of. Andrews v. Smith, 324 Pa. 455, 188 A. 146 (1936).

In the instant matter, the plaintiff has presented evidence, if proven, that could establish that defendant knew or should have known about her dogs’ likely behaviors. The defendant admits in her deposition that the dogs were very protective of the house and were notorious for barking at people. The record also reflects that the defendant was aware of incidents in the past which involved her dogs’ behaviors in the neighborhood.

Taking all of the above circumstances together as true, an issue of fact exists to whether the defendant knew or had reason to know about her dogs’ tendencies. As such, defendant’s motion for summary judgment on Count I of plaintiff’s complaint is denied.

Defendant argues that Count II of plaintiff’s second amended complaint alleging negligence based on a statutory violation of section 459-502-A of the Dog Law is not supported by the record. In opposition, plaintiff cites Rosen v. Tate, 64 D.&C.4th 524 (2003), as authority to demonstrate that the elements of the offense are supported. According to Rosen, the Dog Law is an appropriate “standard for determining whether a person has complied with the common-law duty to exercise ordinary care” and violation constitutes negligence per se. Id. at 530. As per Rosen, in order to fulfill the requirements of the Dog Law, “[the plaintiff] must establish that the dog has either (or both) of the following: [1] a history of attacking human beings . . . without provocation or [2] a propensity to attack human beings ... without provocation.” Id. at 531.

As previously mentioned, the plaintiff has presented some facts which, if believed, a jury could find that the defendant knew or should have known of problems concerning her dogs. Provocation is a defense to a violation of the Dog Law. In the instant case, the deposition of defendant is that he knocked on the window. Ajuiy could find that this noise provoked the protective instincts of the dogs.

As such, an issue of fact exists that precludes the grant of summary judgment on this count. Consequently, the defendant’s summary judgment claim on Count II of the complaint must also be denied.

Defendant also argues that based on the evidence presented, plaintiff’s final claim for punitive damages is not warranted. The plaintiff’s complaint alleges that defendant’s knowledge of previous incidents with her dogs, her failure to restrain them and her actions not to come to the aid of the plaintiff after he was harmed, are sufficient to support a claim for punitive damages.

Punitive damages may be awarded for conduct that is outrageous. Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747-48 (1984). Where there exists no indication of evil motive, then a plaintiff must establish that a defendant acted with reckless indifference to the rights of others. Burke v. Maassen, 904 F.2d 178, 181 (3d Cir. 1990). Punitive damages can be found where the evidence shows the defendant knows, or has reason to know, of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act in conscious disregard of that risk. Id. at 181; Martin v. Johns-Manville Corporation, 508 Pa. 154, 494 A.2d 1088 (1985).

The defendant argues that under Feld v. Merriam, the facts presented by the record do not support allegations of reckless and indifferent conduct on the part of the defendant. In Feld, the court found that although the defendant failed to reasonably perform a duty, this was insufficient evidence to support the necessary state of mind requirement to impose punitive damages. Feld v. Merriam, 506 Pa. 383, 396, 485 A.2d 742, 748 (1984). The court based its decision on the fact that the danger involved in the case was not an easily perceptible one. Id.

Similar to Feld, although a question exists as to whether defendant failed to act reasonably under the circumstances, the facts presented in this case do not establish the state of mind required to sustain a claim for punitive damages. As demonstrated in defendant’s testimony, she attempted to hold down one of her dogs to keep him from exiting the house. The defendant also called the dogs back into the house and was not aware of the incident until some time later when the police arrived.

Based on the record, we do not find the defendant’s conduct outrageous or deliberate. As such, defendant’s motion for summary judgment opposing plaintiff’s claim for punitive damages is granted.

Accordingly, we enter the following order.

ORDER

And now, September 19, 2008, defendant Mary Kay James’ motion for summary judgment is denied as to Count I and Count II and granted as to Count IV.


author: BROWN JR., S.J.,

text:
    DiMidio v. DiMidio

      Faith M. Lucchesi, for plaintiff.

      Dean DiMidio, pro se.
    January 30, 2008
   BROWN JR., S.J.,

Before this court is a petition for modification filed by defendant Dean DiMidio on July 3, 2007. Defendant requests the court modify its order of April 13, 2006 (which was affirmed by the Superior Court by a decision dated June 28, 2007). A hearing was held on September 21 and November 2, 2007 to receive evidence on the issue of whether or not modification of the April 13, 2006 order is called for.

As he did during the hearing leading to the April 13, 2006 order, defendant is asking the court grant the parents shared physical custody of their three minor children.

The court will modify its April 13, 2006 order.

DISCUSSION

Citations of authority are not necessary to point out that the sole determining factor in child custody cases is the best interest and welfare of the child.

Once a custody order has been entered, although a change of circumstances is not required for a court to undertake a review of that order, best interests are not to be considered in a vacuum. In the event circumstances which lead to the initial order are not changed, it is presumed that what was in the child’s best interest is still in effect. Hutchinson v. Hutchinson, 379 Pa. Super. 247, 549 A.2d 999 (1988).

Here we are once again focusing on the fourth factor to be considered when shared physical custody is sought by a parent. “(4) [MJinimal degree of cooperation between the parents must be possible.” Wiseman v. Wall, 718 A.2d 844, 848 (Pa. Super. 1998).

There still is not sufficient cooperation to grant the parents shared physical custody of the children. The situation is little, if any, better than it was leading up to the April 13,2006 order. The court does note that defendant has toned down the language in his e-mails. However, it is still clear he believes it is necessary to point out to plaintiff, in varied and subtle ways, as often as he can, that she intends to deprive him of a significant role in the children’s lives. The court does not agree. Further, this attitude is not conducive to the cooperation necessary for shared custody.

The court does believe that increasing the time the children are to be with their father is warranted.

Accordingly, the following is entered:

ORDER

Paragraph 2a of the order of April 13, 2006, is modified as follows:

(a) During the school year, alternating weekends from 6 p.m. on Thursday until 7 p.m. on Sunday and during the week Father does not have physical custody scheduled, he shall have custody of the children from 6 p.m. on Wednesday until 7 p.m. on Thursday.

All other provisions of the order of April 13, 2006, shall remain in effect.


author: MASSIAH-JACKSON, J.,

text:
    Lockley v. CSX Transportation Inc.

      David L. Lockard, Lawrence A. Katz and Jack L. Wilson, for plaintiff.

      Daniel J. Hampton and Stephen A. Hall, for defendant.
    March 30, 2009
   MASSIAH-JACKSON, J.,

On May 2,2008, following two weeks of trial, the jury determined that CSX Transportation Inc. did violate the Federal Locomotive Inspection Act. The jury determined that CSX was negligent pursuant to the Federal Employers’ Liability Act. The jury also determined that Albert Lockley was 22 percent comparatively negligent. The jury awarded Mr. Lockley $2,000,000 in damages. See court exhibit “A,” attached hereto.

The plaintiff has filed a post-trial motion to mold the verdict and enter judgment, pursuant to Rule 227.1 of the Pennsylvania Rules of Civil Procedure. The defendant opposes that motion. The defendant has filed a series of motions alleging that the verdict is excessive, requesting remittitur, and seeking an offset. The plaintiff opposes those motions. See also, post-trial hearing, dated February 20, 2009.

For the reasons which follow the motions of CSX are denied. Judgment is entered in favor of Albert Lockley in the amount of $2,000,000 on the FLIA claim.

A. THE VERDICT AWARD DOES NOT SHOCK THIS COURT’S CONSCIENCE

CSX contends that the verdict award is excessive and should be reduced by this court or a new trial ordered. CSX post-trial brief, pp. 70-76. This court does not agree.

The Superior Court in Prather v. H-K Corporation, 282 Pa. Super. 556, 565, 423 A.2d 385, 389 (1980), stated:

“The issue of the amount to be awarded an injured person for pain and suffering and loss or impairment of earning power, both past and prospective is primarily a jury question— It is the duty of the trial court to enforce the jury’s verdict and to interfere only ‘when the circumstances cry for judicial interference.’ . . . Moreover, a substantial verdict, if supported by the evidence, must be permitted to stand and will not be set aside when there is nothing to suggest that the jury was in any way guided by partiality, prejudice, mistake or corruption.”

Remittitur is appropriate only if an award is plainly excessive or exorbitant. Carminati v. Philadelphia Transportation Co., 405 Pa. 500, 176 A.2d 440 (1962). See also, Botek v. Mine Safety Appliance Corporation, 531 Pa. 160, 611 A.2d 1174 (1992), and cases cited at 165-66, 611 A.2d at 1176; Harding v. Consolidated Rail Corporation, 423 Pa. Super. 208, 225, 620 A.2d 1185, 1193 (1993) and cases noting that the grant or refusal of new trial because of the amount of an award is peculiarly within the discretion of the trial court. In this case because the jury decision is supported by the evidence neither a new trial nor remittitur will be granted.

In Kemp v. Philadelphia Transportation Co., 239 Pa. Super. 379, 361 A.2d 362 (1976), the Superior Court enumerated several factors to be considered in determining the reasonableness of the jury verdict: (1) The severity of the injuries; (2) Whether the injury is demonstrated by physical evidence; (3) Whether the injury will affect the plaintiff permanently; (4) Plaintiff’s ability to continue employment; and (5) The disparity between expenses and verdict amount. See also, Frazier v. Norfolk and Western Railway Company, 996 F.2d 922 (7th Cir. 1993); Wagner by Wagner v. York Hospital, 415 Pa. Super. 1, 608 A.2d 496 (1992).

In this case the jury’s decision reflects evidence that Mr. Lockley’s neck pains, numbness and tingling started approximately five years before the trial, and, his life expectancy is at least 25 additional years. April 23,2008, N.T. 163-65. Dr. Greene, the orthopedic surgeon, described Mr. Lockley’s reduced neck motion, as well as pain with motion in his neck. Greene video, N.T. 38,45. Mr. Lockley confirmed that post-surgery he suffers from daily pain and, at night the pain is worse. He takes sedatives to sleep. April 25, 2008, N.T. 53. The plaintiff’s doctors confirmed that there was objective evidence of the cause of the severe and chronic pain. Prior to surgery, there was left side disc deformity and arthritis at C5-C6 and C6-C7. The changes in C5-C6 were trauma related— not acute trauma, but rather cumulative stress over time. Greene video, N.T. 59-60, 127.

Dr. Grossinger, who specializes in pain management for Mr. Lockley, described the pinched nerves in his neck and gave him five epidural steroidal injections. April 23, 2008, N.T. 18-19. The injections were supposed to relieve swelling on the discs and improve neck mobility. Mr. Lockley testified that the injections did provide relief for about two weeks, however, the pain returned. April 25, 2008, N.T. 36.

Dr. Greene’s independent medical examination in July 2007, provided a second opinion to Mr. Lockley, and confirmed that a two-level cervical fusion surgery was recommended. Greene video, N.T. 33-35, 77-78. The jury heard that the plaintiff was young for this type of injury, however, the EMG tests and MRI’s were objective testing which revealed positive results of injury. Greene video, N.T. 32, 162. After the laminectomy surgery in November 2007, Mr. Lockley has limited range of motion in his neck. April 23,2008, N.T. 26; April 25,2008, N.T. 45. The surgery was not successful. The pain and numbness has started to return according to Mr. Lockley and Dr. Grossinger. April 23, 2008, N.T. 32. Scar tissue has formed and is pressing on the cervical nerves.

Mr. Lockley is permanently disabled. He will require future epidural injections and radio frequency neurotomy. April 23, 2008, N.T. 29-30; April 25, 2008, N.T. 44-45. The strong pain medications make the plaintiff nauseous, and also prevent him from working. April 25,2008, N.T. 40, 45; April 23, 2008, N.T. 24, 122. Dr. Grossinger concludes the plaintiff will continue to require injections and many medications including Class II narcotics, Percocet, Ambien, muscle relaxers. He will have future medical bills. April 23,2008, N.T. 28. Mr. Lockley reads at a high school level. His math and spelling are at a 6th grade level. April 23, 2008, N.T. 122-24.

The jury heard that no doctor has given approval for Mr. Lockley to return to any type of work. Greene video, N.T. 79; April 23, 2008, N.T. 38; April 29, 2008, N.T. 169-71.

The verdict award was based on many tangibles and intangibles. The jury charge was prepared by all counsel and read by the court. The items of damages included: (a) The physical pain and mental or emotional suffering that Mr. Lockley has experienced and is reasonably certain to experience in the future; (b) The nature and extent of Mr. Lockley’s injury, whether the injury is temporary or permanent or whether it results in partial or total disability, including any aggravation of a pre-existing condition; (c) The present value of reasonably necessary medical care and supplies certain to be received in the future; (d) The earnings Mr. Lockley has lost to date and into the future; (e) The reasonable value of household services which Mr. Lockley was unable to perform to date and in the future. May 1, 2008, N.T. 144-46.

Mr. Lockley testified about the effect the injury has had on his activities of daily living, on his emotional state and his manner of living. For many years, Mr. Lockley’s non-work activities involved participation in church functions. Each year he would cook and cater for the Usher Board, the Stewards Board, Women’s Day, Men’s Day, Delaware County Sunday School Breakfast, Men’s Breakfast and Annual Fall Black Tie Event. April 25, 2008, N.T. 50-51. He used to participate on the bus trips to Lancaster Sight and Sound and the Lancaster shopping malls. He is no longer able to do these activities: too much walking at the malls; too much lifting and carrying for large scale banquets; and can no longer sit on long bus rides. April 25,2008, N.T. 50-53.

Mr. Lockley stated that he is embarrassed and depressed. He does not go out. He is in continuing pain and discomfort. He can no longer cut his lawn or handle painting around the house. He misses his work and does not want to discuss his situation with others. He takes anti-depressant medications, but he continues to be tired and depressed. April 25, 2008, N.T, 46, 49-53, 109. He cannot carry his grandchildren or play with them as he would like to. The jury observed his demeanor and manner as he testified.

Dr. Verzilli testified that Mr. Lockley’s future lost earning capacity is in the range of $786,000 to $849,000. April 23,2008, N.T. 163. He opined on replacement costs for lost household services, which reflect some of the family and household activities which the plaintiff can no longer do — up to age 70, April 23,2008, N.T. 166-69, and gave a range of loss between $43,000, to $100,000. The plaintiff can no longer do heavy cleaning or lift heavy bags for shopping. The plaintiff was 53 years old at the time of trial.

When appraising all of the above factors and the many items of damages, this court which sits as an experienced civil trial court and which had the benefit of seeing and hearing all of the evidence, has no hesitancy in concluding that the jury’s verdict was fair, thoughtful and reasonable. Haines v. Raven Arms, 536 Pa. 452, 640 A.2d 367 (1994). Under the circumstances present here, the verdict award, although substantial, is supported by the evidence. It is not excessive and does not shock this court’s conscience. Schneider v. National Railroad Passenger Corporation, 987 F.2d 132 (2nd Cir.1993); Batchkowsky v. Penn Central Co., 525 F.2d 1121 (2nd Cir. 1975).

B. THE REQUEST FOR REMITTITUR IS DENIED

The scenario conjured up by CSX simply did not exist — jurors and lawyers weeping in court from the earliest days of trial. CSX post-trial brief, pp. 73-76. This fiction, articulated for the first time in the post-trial briefs, demeans the substantial energy, resources and evidence presented by both parties and all counsel during this litigation. There is nothing to suggest that the jury was in any way guided by partiality, prejudice, mistake or corruption.

CSX insists that it is entitled to a set-off against the verdict award in violation of the Collateral Source Rule. CSX post-trial brief, pp. 71-73; defendant’s motion for offset to jury award; defendant’s memorandum in opposition to plaintiff’s motion to mold verdict and enter judgment pursuant to Rule 227.1. The defendant-railroad has presented two arguments in support of this position. First, CSX reiterates its notion that cross-examination should have been extended to make the jury aware that if Mr. Lockley retired at age 60, he could have received full retirement benefits. (The 30-60 Rule.) This issue has been addressed in the court’s memorandum in support of order denying the defendant’s motions for judgment n.o.v. and/or new trial, at pp. 43-45.

Second, CSX asserts that the verdict is excessive because Dr. Verzilli failed to subtract Tier I and Tier II Railroad Board taxes. April 23. 2008, N.T. 179-85. The defendant-railroad’s related argument is set forth in the defendant’s motion for offset to jury award. This motion is a request to this court that the verdict be reduced by the amount of a disability annuity attributable to CSX’s contribution. The case law is clear that plaintiff’s payments from the Railroad Retirement Act are a collateral source and are not subject to deduction by the expert witness nor as an offset by this court. April 23, 2008, N.T. 185. Wilkins v. CSX Transportation Inc., 669 S.E.2d 784 (N.C. Ct. App. 2008) holds that the 1974 amendments to the Railroad Retirement Act have not vitiated the Supreme Court decision in Eichel v. New York Central Railroad Co., 375 U.S. 253 (1963). In CSX Transportation Inc. v. Gardner, 874 N.E.2d 357 (Ind. Ct. App. 2007), the appellate court provided an extensive analysis of the identical CSX contentions made herein and rejected all of the railroad’s arguments. That court held that federal common law, the FELA, the Railroad Retirement Act, and the Eichel case are consistent in that the “Collateral Source Rule prevents CSX from setting off disability payment made... from the FELA award.” See also, plaintiff’s reply in opposition to CSX’s motion to offset the jury award, and cases cited therein, including inter alia, Hileman v. Pittsburg & Lake Erie Railroad Co., 546 Pa. 433, 685 A.2d 994 (1996), reviewing the interplay between FELA and the Collateral Source Rule; Griesser v. National Railroad Passenger Corporation, 761 A.2d 606 (Pa. Super. 2000), appeal denied, 565 Pa. 672, 775 A.2d 807 (2001), where a new trial was ordered after trial court erroneously permitted the 30-60 Rule to be introduced into evidence.

Further, to the extent that CSX suggests that the jury should consider “after-tax income,” reference is made to Dr. Verzilli’s testimony on cross-examination confirming that he deducted federal and state taxes from his calculations. April 23, 2008, N.T. 177. The jury was told that the verdict award would not be taxed. May 1,2008, N.T. 146; Norfolk & Western Railway v. Liepelt, 444 U.S. 490 (1980). Finally, as has been discussed in this court’s memorandum in support of order denying the defendant’s motions for judgment n.o.v. and/or new trial, pp. 21-23, a FELA plaintiff whose horizons have been limited by spinal fusion surgery is entitled to compensatory damages for loss of future earning capacity. Wiles v. New York, Chicago and St. Louis Railroad Co., 283 F.2d 328 (3d Cir. 1960).

C. CONCLUSION

The jury found that CSX violated the Federal Locomotive Inspection Act and that the violation caused, in whole or in part, the serious and permanent injuries suffered by Albert Lockley. This statute creates liability without regard to negligence. It is an absolute, statutory violation.

The evidence was sufficient to sustain the verdict. See court’s memorandum in support of order denying the defendant’s motions for judgment notwithstanding the verdict and/or new trial. Accordingly, judgment is entered in favor of plaintiff, Albert Lockley, in the amount of $2,000,000 and against CSX Transportation Inc.

EXHIBIT “A”

JURY INTERROGATORIES

(1) Did the defendant, CSXT, violate the Federal Locomotive Inspection Act?

Yes_No

(If your answer is “yes” go on to question no. 2, if your answer is “no”, proceed to question no. 3.)

(2) Was the defendant’s violation of the Federal Locomotive Inspection Act a cause, in whole or in part, of the plaintiff’s injuries?

v Yes_No

(Proceed to question no. 3.)

(3) Was the defendant railroad negligent?

v Yes_No

(If your answer is “yes” go on to question no. 4. If you answered “no” to questions 1 and 3 then you have finished your deliberations. Please notify the tipstaff.)

(4) Was the defendant’s negligence a cause, in whole or in part, of the plaintiff’s injuries?

v* Yes_No

(If your answer is “yes” go on to question no. 5. If you answered “no” to question 1 and, also, you answered “no” to question 4, then you have finished your deliberations. Please notify the tipstaff.)

(5) Was Mr. Lockley negligent?

* Yes_No

(If your answer is “yes” go on to question no. 6, if your answer is “no”, go on to question no. 8.)

(6) Was Mr. Lockley’s negligence, if any, a cause in whole or in part of his injuries?

v Yes_No

(If your answer is “yes” go on to question no. 7, if your answer is “no”, go on to question no. 8.)

(7) What percentage of negligence do you fund against the defendant and the plaintiff? (The total must be 100 percent and you are not to apply these percentages in response to question no. 8. The court will do so after you have announced your verdict.)

78% CSX Transportation 22% Albert Lockley

(8) State the total amount of damages to be awarded to the plaintiff. This amount is to be entered as a single lump-sum number.

$2,000.000

/s/Janice Y. M. Crossin 5/2/08

Foreperson’s Signature Dated


author: HODGE, J.,

text:
    Kepley v. Kepley

      Susan M. Papa, for plaintiff

      Peter E. Horne, for defendant.
    March 18, 2009
   HODGE, J.,

Before the court for consideration is the petition for reconsideration filed by the defendant/Father, Daniel Kepley, arguing that this court, in its order dated December 5, 2008, errored in substantially increasing his obligation of child support which originally was agreed to by the parties in their contract of separation, property settlement and support agreement dated June 20, 2007.

This court conducted a hearing on January 23, 2009, on this limited issue.

By way of background, the parties were married on August 25, 2001, and there were two children bom to the marriage, A.M.K., bom June 25, 2005, and D.F.K., bom January 13, 2007.

In the State of North Carolina, County of Mecklenburg, the parties entered into a contract of separation, property settlement and support agreement, dated June 20, 2007, which agreement covered the issues of property settlement, separation, waiver of alimony and support, custody and child support, income taxes, and general provisions. Section 3.4(a), provided that “Husband will pay to Wife child support in the sum of $ 1,100 per month on or before the 30th of each month____” This paragraph goes on to say that “child support payment will be reviewed annually....”

In addition, the agreement contained the following paragraphs:

“Section 5.5 Amendment. This agreement can be altered and amended only by further written agreement duly executed by the parties. Any failure by either party to specifically perform or to enforce performance exactly according to the letter of this agreement shall not constitute an alteration of the same by way of enlargement, waiver, reduction, estoppel, or otherwise, unless confirmed in writing by the parties.
“Section 5.6 Situs. This agreement shall be constmed and governed in accordance with the laws of the State of North Carolina.”

As set forth in the agreement, the mother relocated with the children from North Carolina to New Castle, Pennsylvania, and, on March 9,2008, filed a complaint for support in the office of the Lawrence County Domestic Relations Section of this court, seeking support not only for the two children, but also for herself.

Following an initial domestic relations conference, this court, by order of May 29, 2008, dismissed the mother’s claim for spousal support pursuant to the terms of the agreement between the parties, article II, section 2.1, which provides that each party does hereby waive any and all rights, past, present and future, which either party may have against the other for support, alimony, post-separation support and all other claims for support and maintenance which the parties may have by reason of the marriage.

However, this court did enter an order for support of the two minor children, after determining the parties’ earning capacities and monthly incomes, said order entered in accordance with the Pennsylvania Child Support Guidelines.

Following a demand for a de novo hearing by the defendant in this matter, this matter is now before the court on a petition for reconsideration filed by the defendant. In said petition, the defendant is alleging that this court errored by applying Pennsylvania law rather than North Carolina law in modifying his support obligation. Counsel refers the court to the Pennsylvania Supreme Court case of Pennsylvania Department of Banking v. NCAS of Delaware LLC, 596 Pa. 638, 948 A.2d 752 (2008). Counsel sites this case for the proposition that this court is obligated to enforce the choice of law pro visions in the contract by and between these parties. However, after closely reading the case, the court concludes that this case does not support the desired result of the defendant. The NCAS case involves a Delaware limited liability company, doing business as Advance America, Cash Advance Centers, which is a payday cash lender that makes loans to consumers that are short-term, high interest, secured by a post-dated check, with a payment obligation generally to coincide with the borrower’s payday. The Supreme Court of Pennsylvania determined in NCAS that the provisions in the contract relative to the choice of law is not binding on the Pennsylvania Department of Banking, in that the Commonwealth public policy prohibits usurious lending, a provision that has been well recognized in the courts for well over 100 years. In addition, the Supreme Court notes in a footnote, that the Supreme Court has recognized the choice of law agreements can be avoided when the terms offend public policy even in disputes between contracting parties. See McIlvaine Trucking Inc. v. CAB, 570 Pa. 662, 810 A.2d 1280 (2002).

A fundamental proposition of law is that a parent may not contract away a child’s right to support. In Sams v. Sams, 808 A.2d 206 (Pa. Super. 2002), the Superior Court found that a private child support agreement that reduced the father’s accumulated arrearages in his monthly support obligation was unenforceable, because the father was already legally obligated to pay the mother support in excess of the amount specified in the agreement. The Superior Court acknowledged that Pennsylvania law permits support orders and private agreements for support to coexist and be enforced separately. Private support agreements are subject to contract principles, but a child’s right to support cannot be bargained away by either party. See McMahon v. McMahon, 417 Pa. Super. 592, 612 A.2d 1360 (1992), affirmed, 547 Pa. 124, 688 A.2d 1179 (1997).

Contracts between husband and wife, if fairly made, are generally considered binding as to them, although legally ineffective to oust the jurisdiction of the court in a support action. A mother cannot, by contract, bargain away the right of her minor children to adequate support from the father, regardless of the validity of the agreement as between the parents themselves. See Hyde v. Hyde, 421 Pa. Super. 415, 618 A.2d 406 (1992). In each case it is for the court to determine whether or not the terms of the agreement are reasonable, made without fraud or coercion, and have been carried out in good faith. See Miesen v. Frank, 361 Pa. Super. 204, 522 A.2d 85 (1987); see also, Kost v. Kost, 757 A.2d 952 (Pa. Super. 2000).

The contract of separation, property settlement and support was an all-encompassing, global settlement agreement by and between these parties. The issues covered in the property settlement agreement included the marital residence/real property, personal property, including automobiles, household furnishings, jewelry, clothing, bank accounts, life insurance, 40IK plans and mutual releases of property rights and waiver of claims against each other’s estate.

In section 3.4, relative to child support, the parties agreed, not only as to the amount at $1,100 per month, but also, “they further agree that fair and reasonable support for Husband to provide for the health, education and maintenance of the children having due regard to the estates, earnings, conditions and level of support required to provide in a custom standard of living for the minor children and the parties, and that other facts and circumstances of the parties is as set forth hereinafter.”

Based upon the language of the agreement and the appellate court cases, this court determines that the terms of the agreement were reasonable, made without fraud or coercion, and have been carried out by both parties in good faith.

Under the North Carolina Child Support Guidelines, “if a child’s parents have executed a valid, unincorporated separation agreement that determines a parent’s child support obligation and action for child support is subsequently brought against the parents, the court must base the parent’s child support obligation on the amount of support provided under the separation agreement rather than the amount of support payable under the child support guidelines unless the court determines, by the greater weight of evidence taking into account the child’s needs and the factors enumerated in the first sentence of G.S. 50-13.4(c), that the amount of support under the separation agreement is unreasonable.”

This court is unable to conclude that the amount of support agreed in the marital dissolution agreement is unreasonable at the sum of $ 1,100 per month, when this court has determined that, based upon the net monthly earning capacities and earnings of both parties, that the defendant’s net monthly child support guideline obligation is $1,075.08.

The obvious difference is the child care deviation which this court has previously added to the basic child support order, based upon an allocation of the child care cost and the applicable percentages of total income of each party.

This court, based upon a review of the totality of the agreement and the factors in this case, concludes that the marital dissolution agreement of the parties does provide for adequate support from the father, and as a result, the court will enforce the terms of the agreement entered freely and willingly by both parties in this case pursuant to the attached order.

ORDER

And now, March 18,2009, following consideration of the defendant’s motion for reconsideration, and the arguments of counsel, Attorney Peter Home for the defendant and Attorney Susan M. Papa for the plaintiff, the court grants the defendant’s motion for reconsideration, and the prior order of this court dated December 5, 2008, is hereby reversed and rescinded, effective July 7, 2008.

The defendant shall pay to the Pennsylvania State Collection and Disbursement Unit the sum of $1,100 in child support per month, the first payment due immediately and monthly thereafter until an income attachment is implemented.

Any un-reimbursed medical expenses that exceed $250 annually per child and/or spouse are to be paid as follows:

(a) 45.2 percent by the plaintiff;

(b) 54.8 percent by the defendant.

The plaintiff’s petition for counsel fees is hereby denied.

The domestic relations section is directed to serve a copy of this order of court upon counsel of record, and if a party is not represented by counsel, then upon that party at their last known address as contained in the court’s file.


author: SCHMEHL, J.L., P.J.,

text:
    Detwiler v. Larsen

      Hanna-Aurelia Dunlap, for plaintiffs.

      J T. Herber III, for defendant.
    February 25, 2009
   SCHMEHL, J.L., P.J.,

This matter arose from a breach of contract, breach of warranties, fraud and unfair trade practice action, wherein plaintiffs/ appellants Gary R. Detwiler and Diana Detwiler alleged that in 2006, defendant/appellee Jason Larsen t/d/b/a American Remodeling installed defective windows in plaintiffs’ home. Plaintiffs claimed that this work was done pursuant to a written contract signed by themselves and defendant in 2006 (the contract). In their March 6, 2008 complaint, plaintiffs also alleged that the defendant knew or should have known of the defect in the product, had substandard workmanship, and that defendant’s attempts to correct the problem were ineffective. Additionally, plaintiffs referenced the “Starmark” manufacturer’s warranty that plaintiffs signed at the time of the contract. Finally, plaintiffs alleged that their home had been rendered cold and drafty as a result of the faulty windows.

Defendant filed preliminary objections to plaintiffs’ complaint, and supporting brief, on April 21,2008. The basis of defendant’s objections was grounded in the fact that Jason Larsen the individual was not a party to the contract between plaintiffs and defendant. Instead, the party to the contract with plaintiffs was the corporation of American Remodeling and Roofing Inc., a Pennsylvania corporation which traded under the fictitious name “American Remodeling.” Because it was the corporation which signed the contract with plaintiffs, the defendant alleged that plaintiffs did not assert a cause of action upon which relief could be granted against Jason Larsen. Further, defendant indicated that the Starmark warranty plaintiffs signed was a warranty provided by and entered into with the window manufacturer Starmark, and not American Remodeling.

Defendant also argued that the fraud and unfair trade practice claims of plaintiffs’ complaint were insufficient, in that plaintiffs had not pled facts which could support the elements of either claim. Similarly, defendant asserted that plaintiffs did not allege sufficient facts to justify an award of punitive damages. Finally, defendant raised improper venue, pointing to the forum selection clause in the contract, which provided that any action be brought in Schuylkill County, and insufficient pleading, along with a motion to strike impertinent matter.

Plaintiffs filed preliminary objections of plaintiffs to preliminary objections of defendants, and supporting brief, on May 22, 2008, the former of which were later overruled by the court. Plaintiffs argued that defendant’s preliminary objections should be dismissed or stricken because: defendant endorsed them with a notice to plead in violation of law and rule of court; defendant failed to comply with local Rules of Civil Procedure; and that the preliminary objections should be overruled because they had no merit.

Plaintiffs filed answers to preliminary objections on May 27,2008, in which plaintiffs asserted that the complaint was not legally insufficient, set forth valid claims against defendant, stated a valid cause of action against defendant, stated a valid claim for breach of various warranties, stated a valid fraud claim against defendant, stated a valid claim against defendant under Pa. UTP-CPL, and properly included treble damages. Further, plaintiffs said that venue was proper in Berks County.

Defendant filed answers to plaintiffs’ preliminary objections to defendant’s preliminary objections on June 9, 2008, along with a supporting memorandum. In defendant’s answers and memorandum, defendant held three positions: it was proper for Jason Larsen to endorse his preliminary objections with a notice to plead, because one of his objections raised “improper venue”; plaintiffs’ preliminary objections alleging a violation of Berks County Rules of Civil Procedure should be dismissed as moot, as the court had already addressed this issue; and plaintiffs’ preliminary objections based upon alleged “lack of merit” should be overruled as no such objection existed.

On June 30, 2008, this court entered an order which overruled plaintiffs’ preliminary objections to the defendant’s preliminary objections, and ordered the plaintiffs to file an answer to the defendant’s preliminary objections. On July 21, 2008, plaintiffs filed a revised answer to defendant’s preliminary objections, accompanied by a supporting brief. In these answers and brief, plaintiffs claimed that: defendant’s demurrers should be overruled because plaintiffs clearly stated valid claims against defendant; defendant’s preliminary objection to venue should be overruled because plaintiffs are Berks County residents; defendant’s preliminary objection alleging insufficient specificity of the pleading should be overruled because the complaint was sufficiently detailed to enable defendant to defend against plaintiffs’ claims; and defendant’s preliminary objection which moved to strike impertinent matter should be overruled because plaintiffs’ facts pled in their complaint were pertinent.

This court heard arguments by both parties at a hearing on defendant’s preliminary objections, and plaintiffs’ answers thereto, on September 2, 2008. On September 22, 2008, after hearing held, this court entered an order sustaining defendant’s preliminary objections, and dismissing plaintiffs’ complaint for failing to set forth a cause of action against Jason Larsen.

Subsequently, plaintiffs filed a notice of appeal on October 22, 2008, appealing this court’s September 22, 2008 order. Plaintiffs filed a concise statement of matters complained of on appeal on November 6,2008. In plaintiffs’ concise statement, the sole argument made was that “plaintiffs believe that the court erred on the law because if plaintiffs’ factual allegations are admitted as true, as is proper in the context of a demurrer, those allegations would, in fact, support a finding of defendant’s personal liability.”

It is well-settled law that in considering a preliminary objection in the nature of a demurrer to a complaint, a court must accept as true all well-pleaded facts and allegations in the complaint and all reasonable inferences drawn from those facts and then determine whether the facts pleaded are legally sufficient to permit the action to continue. Crozer Chester Medical Center v. Department of Labor and Industry, 955 A.2d 1037, 1040 n.1 (Pa. Commw. 2008), citing Fordham v. Department of Corrections, 943 A.2d 1004, 1006 n. 2 (Pa. Commw. 2008). A court “reviewing preliminary objections may not only consider the facts pled in the complaint, but also documents or exhibits attached to it.” Lawrence v. Pennsylvania Department of Corrections, 941 A.2d 70, 71 (Pa. Commw. 2007) citing Diess v. PennDOT, 935 A.2d 895 (Pa. Commw. 2007). Furthermore, when any claim or defense is based upon a written agreement, such as the contract in this case, a plaintiff must attach a copy of the writing to the complaint. Pa.R.C.P. 1019(i). In considering defendant’s preliminary objections, this court did accept as true all factual allegations made in plaintiffs’ complaint, and considered the documents attached to the complaint, which included the contract at issue.

Preliminary objections in the nature of a demurrer should be sustained only if, assuming the averments of the complaint to be true, the plaintiff has failed to set forth a valid cause of action. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008). Plaintiffs’ case is predicated upon breach of contract. In a claim for breach of contract, there are three necessary elements: the existence of a contract, including its essential terms; a breach of duty imposed by the contract; and resultant damages. Omicron Systems Inc. v. Weiner, 860 A.2d 554, 564 (Pa. Super. 2004).

It is fundamental, also, that under contract law, one cannot be liable for a breach of contract unless one is a party to that contract. Electron Energy Corp. v. Short, 408 Pa. Super. 563, 567, 597 A.2d 175, 177 (1991). In that case, with facts very similar to the one at hand, a breach of contract action was brought against a heating and cooling system company, and the company’s president was found personally liable for the breach of contract. Id. The Superior Court, however, found that the company president should not have been held liable, when he as an individual was not a signatory to the contract, and the suit was for breach of contract. Id.

It is well-established law in Pennsylvania that the corporate form provides limited liability, and separates the risks and assets of a corporation from those of its managers. A corporation shall be regarded as an independent entity even if its stock is owned entirely by one person. College Watercolor Group Inc. v. William H. Newbauer Inc., 468 Pa. 103, 116, 360 A.2d 200, 207 (1976). Where a party enters into a contract with a corporation, the breach of the contract is the breach of a promise made by the corporation, and not the breach of any promise extended by the corporate officer. Loeffler v. McShane, 372 Pa. Super. 442, 448, 539 A.2d 876, 879 (1988). There is a strong presumption in Pennsylvania against piercing the corporate veil. Advanced Telephone Systems Inc. v. Com-Net Professional Mobile Radio LLC, 846 A.2d 1264, 1277 (Pa. Super. 2004). The factors to be considered in disregarding the corporate form are as follows: “undercapitalization, failure to adhere to corporate formalities, substantial intermingling of corporate and personal affairs and use of the corporate form to perpetuate a fraud.” Id. at 1278.

The plaintiffs raised fraud in their complaint. In order to sufficiently assert facts to allege fraud, there must be an assertion that a party made a knowing misrepresentation which induced another party to act or fail to act, which in the end, caused damage to the party who relied upon the misrepresentation. Fletcher-Harlee Corp. v. Szymanski, 936 A.2d 87, 100 (Pa. Super. 2007). In their complaint, to make a claim for fraud, plaintiffs alleged that “defendant fraudulently induced plaintiff to enter into the agreement and into doing business with defendant without having any intention or ability to provide the bargained-for product and workmanship....” These conclusions of law failed to adequately demonstrate facts to make a prima facie case that defendant made a knowing misrepresentation which induced plaintiffs to act or fail to act. Further, the facts alleged in the initial section of plaintiffs’ complaint did not establish the necessary elements of fraud, and failed in the same respect as the quoted portion of the complaint, above. As such, this court found that plaintiffs did not meet the necessary threshold to pierce the corporate veil.

Additionally, plaintiffs never pled a contract between themselves and defendant Jason Larsen, such that plaintiffs could hold Jason Larsen directly liable as a signatory to the contract. The contract plaintiffs attached to their complaint does not name “Jason Larsen” as a party to the contract. Particularly, the contract states: “The American Remodeling (contractor), agrees to sell and buyer... agree(s) to buy the following goods and services, which are to be furnished or used in the modernization, rehabilitation, repair alteration, or improvement of the real property located at buyer’s address given above.” A brief search of the Pennsylvania Department of State website yields results which show that “American Remodeling” is a fictitious name, and “American Remodeling and Roofing Inc.” is the business corporation, with Jason Larsen listed as its president. The normal practice would be for plaintiffs’ counsel to do this search herself, and file suit against the “proper party. ” (emphasis added) As with the case described above, defendant’s status as president of the corporation does not support a suit for breach of contract against the individual himself. He was not doing business as “American Remodeling”; the corporation was. Accordingly, this court dismissed plaintiffs’ complaint because the pleadings were insufficient, the defendant was improperly named, and the complaint set forth a cause of action for breach of contract against a defendant that was not a party to the contract.

As such, for the above stated reasons, this court respectfully recommends that the instant appeal be denied.

The prothonotary shall forward the remainder of the file to the Superior Court.


text:
    Ferguson v. Electric Factory Concerts

      Bruce J. McKissock, for plaintiff.

      Robert D. MacMahon, for defendants Electric Factory Concerts Inc. and Clear Channel Communications.

      Catherine S. Straggas, for defendant National Event Services Inc.

      Andrew J. Kramer, for defendant Phillies, a/k/a Citizens Bank Park.
    March 19, 2009
   MASSIAH-JACKSON, J.,

On September 9, 2008, following a five-day jury trial, defendants Electric Factory Concerts Inc., National Event Services Inc. and the Phillies were found liable for the injuries suffered by the plaintiff, Greg Ferguson. (All other defendants on the caption were dismissed from the case.)

The jury awarded Mr. Ferguson $150,000 and determined that Electric Factory Concerts Inc. was 10 percent negligent, and, National Event Services Inc. was 60 percent negligent, and, the Phillies was 30 percent negligent. Plaintiff-Ferguson was assaulted by a loud, disorderly and belligerent man while he was attending a Jimmy Buffett concert at Citizens Bank Park. The plaintiff suffered serious and permanent injuries.

After trial transcripts were received, a post-trial briefing schedule was arranged by counsel and the court. The parties agreed to waive oral argument. For the reasons which follow all of the defendants’ motions for post-trial relief are denied.

A. BACKGROUND OF THE CASE

Electric Factory Concerts Inc. (EFC) promoted the .Timmy Buffett concert on August 27, 2005 at Citizens Bank Park. The Phillies organization holds the long-term lease of Citizens Bank Park for their baseball games. In addition, the Phillies generate income and revenue by hosting events such as concerts at the ballpark. The Phillies arranged for National Event Services Inc. (NES) to provide crowd management and event staffing for the August 2005 concerts. NES billed EFC for two Jimmy Buffett events (August 25 and 27) totaling $77,927.26. NES was paid by EFC, the concert promoters. There were more than 45,000 people in attendance at Citizens Bank Park on August 27, 2005. This was the first concert sponsored by the Phillies at Citizens Bank Park. EFC, NES and the Phillies have long-standing working relationships at many events and at various venues along the east coast. NES and EFC have worked together for other Jimmy Buffett concerts. The Phillies and NES have worked together for Phillies baseball games. See Toben, September 3, 2008, N.T. 80-90; Monzo, September 3,2008, N.T. 147, September 4, 2008, N.T. 19-20.

Carl Monzo, the president of National Event Services, described the “typical” Jimmy Buffett crowds on September 4, 2008, N.T. 46-48, at N.T. 47:

“People come in and they are in a festive, just a whole festive involvement. And everything about Jimmy Buffett and Margaritaville and his different songs and his restaurants. It all has that island feeling. And the people come dressed.
“If you ride by the parking area of a Jimmy Buffett concert, you see flags up and blowup animals and palm trees and you name it. I have even seen them put sand down in the parking lot and make their little tailgating party on the sands they build up.”

The jury also heard Frank Lynch, the NES director of operations, explain at September 8, 2008, N.T. 51, describe the “Buffett crowd”:

“Jovial. Like I said, it’s the feel-good tour of the summer. Prior to King Chesy, which like Country Rocks, it’s that. That’s exactly what it is. It’s the Caribbean. It’s leave your troubles behind. It’s wading pools. People come in trucks, they put liners in their trucks and they fill their pickup trucks with water. I don’t know how the Phillies provide enough power for all the blenders and things going on in the parking lot. It’s just leave-your-cares-behind day.
“95 percent of them aren’t in their seats. They are dancing or singing, they’re ready. I mean when that concert is ready to go, they are ready....
“If you are not in your seats by two or three songs, you are not a Buffett fan. I mean, everyone is in; there is no one outside. And it’s electric. It’s electrifying. The crowd, it’s amazing. It’s a touchdown at the Eagles game, it’s a home run at the Phillies field, eveiybody is ampted.”

There should not be any misunderstanding that throughout the trial when any witnesses or counsel used the words “party mood” or “party atmosphere” or “festive” or “jovial” or “tailgating,” the references relate to patrons and concert goers who were drinking alcoholic beverages.

B. LEGAL DISCUSSION

1. The Plaintiff Met His Burden To Prove the Negligence of All Defendants

Plaintiff-Ferguson was a paid ticket holder and a business invitee to the EFC sponsored concert hosted by the Phillies and secured by NES, whose services were paid by EFC. These three defendants owed common-law and contractual duties to Mr. Ferguson. This post-trial court refers to and accepts the comprehensive overview submitted in plaintiff’s brief in opposition to the defendants’ motions for post-trial relief, pp. 19-29.

The Phillies, NES and EFC were active participants in the common enterprise for the purpose of hosting the Jimmy Buffett concert for profit and mutual benefit. This was a joint business promotion and a joint venture engaged in by these defendants. In Gold & Company v. Northeast Theater Corporation, 281 Pa. Super. 69, 421 A.2d 1151 (1980), the appellate court reviewed well-established Pennsylvania tenets of joint ventures noting that each joint venturer is both an agent and a principal of the joint venture. 281 Pa. Super. at 73 n.1, 421 A.2d at 1153 n.1:

“A joint venture is an association of persons or corporations, who by contract, express or implied, agreed to engage in a common enterprise for their mutual profit. Richardson v. Walsh Construction Co., 334 F.2d 334, 336 (3d Cir. 1964).”

See also, McRoberts v. Phelps, 391 Pa. 591, 138 A.2d 439 (1958), relying on 30 Am.Jur. Joint Adventures, §§1, 3, 10, and numerous cases cited, that a joint venture is a special combination of two or more persons seeking a profit, without any actual partnership or corporate designation. Compare, September 8, 2008, N.T. 126-127, where counsel for EFC acknowledges that the concert was a joint effort where each defendant had a relationship with each other, with EFC’s post-trial brief, pp. 25-44.

Our appellate courts have determined that whether a duty exists under a particular set of facts is a question of law for judicial determination. Herczeg v. Hampton Township Municipal Authority, 766 A.2d 866, 871 (Pa. Super. 2001), citing Huddleston v. Infertility Center of America Inc., 700 A.2d 453, 457 (Pa. Super. 1997). Forty years ago, the Pennsylvania Supreme Court commented about the “well established” Rule of Law which states that a possessor of land who holds that land open for business purposes has a duty to the patrons to prevent tortious acts by third parties to his patrons. Moran v. Valley Forge Drive-In Theatre Inc., 431 Pa. 432, 246 A.2d 875 (1968). See also, Rabutino v. Freedom State Realty Company Inc., 809 A.2d 933 (Pa. Super. 2002).

The issues in the negligence analysis are grounded in section 344 of the Restatement (Second) of Torts which capsilizes the particular duty of care which is present here:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
“(a) discover that such acts are being done or are likely to be done, or
“(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”

As joint venturers, the possessors of land, specifically these three defendants, have a duty to police the premises as set forth in comment f:

“/ Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reasons to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to accord a reasonable protection.”

Contrary to the Phillies sur-reply, at page 5, the issue is not whether the Phillies were negligent in hiring NES, rather, “EFC, the Phillies and NES . . . failed to ensure that the security function was properly carried out....” Plaintiff’s brief, at page 27.

Carl Monzo (NES), Eric Tobin (Phillies) and John Stevenson (EFC), had reason to know of prior incidents of crowd control problems including rowdy and boisterous behavior and more, which was fueled by consumption of alcohol at the tailgating parties prior to the concerts and the sale of alcohol during the events. In Mr. Monzo’s opinion all 45,000 concert goers were “rowdy.” September 3,2008, N.T. 158. NES considers issues about people getting punched or in fights “all the time,” according to Mr. Lynch. September 8, 2008, N.T. 46. Mr. Monzo explained to the jury that at Jimmy Buffett concerts many men dressed in grass skirts and coconut bras. September 4, 2008, N.T. 48.

The Phillies, EFC and NES should have and did anticipate careless conduct on the part of third persons and were under a duty to take precautions against such conduct and to provide a reasonable sufficient number of servants to afford reasonable protection to Greg Ferguson. Simply because the Phillies and EFC engaged NES to provide security coordination does not relieve those defendants from their legal duty to exercise care to their customers.

All of the defendants were aware of the security rider contract between Jimmy Buffett and EFC, which required, in part: “Deployment of security personnel. . . to deter and prevent any aggressive actions on the part of the venue patrons.” Mr. Stevenson acknowledged EFC’s responsibility to provide experienced, first class security. September 5, 2008, N.T. 11-18. The Phillies expected that if a security person had seen someone chest-butt a patron, get aggressive or punch a patron, the proper thing to do would be to intervene and try to protect the patron. September 3, 2008, N.T. 118. All of the defendants participated in pre-concert meetings with Jimmy Buffett representatives. They knew that there would be seats for 10,000 concert goers on the ball field seating area. NES provided 167 security personnel for that area.

The Superior Court in Rabutino v. Freedom State Realty Co. Inc., supra, considered whether the business owner’s breach was a legal cause of injury to the plaintiff. The appellate court concluded that so long as there was a foreseeable probability of injury to one within the ambit of danger, summary judgment was denied. In this case, judgment n.o.v. and motions for new trial are denied. Mr. Frank Lynch, the NES Director of Operations explained on September 8, 2008, N.T. 46, that disturbances were foreseeable, “Because anytime you have alcohol involved, obviously there is a potential for anything.” Plaintiff Ferguson established the duty of these three joint venturers. The plaintiff established the breach of that duty. Mr. Ferguson also established that the breach was a legal cause of his serious and permanent injuries.

2. The Evidentiary Rulings Were Proper

a. Terence Gibbs Was Plaintiff’s Expert Witness in Security Practices

After extensive examination relating to his qualifications, which include 30 years as a police officer, Mr. Terence Gibbs was presented without any objection, as Mr. Ferguson’s expert witness in security practices. September 5, 2008, N.T. 114-34. At this post-trial juncture the defendants have objected to a hypothetical question posed to the witness at trial. They are also challenging Mr. Gibbs’ response to a different question. In both instances, when defense counsel objected, the trial court correctly explained the law to the jury. These post-trial arguments are meritless.

Initially, the record reveals on September 5,2008, N.T. 149, Mr. Ferguson’s attorney presented a lengthy hypothetical question to his expert witness. At N.T. 152, defense counsel objected, stating “It assumes a lot of facts not in evidence.” The objection was overruled by the court and the jury was told on N.T. 152-53:

“Ladies and gentlemen, the objection — well, let me start here. Mr. McKissock gave a hypothetical. And then he is asking Mr. Gibbs to give an opinion. The objection is that the hypothetical that was presented has added facts that we haven’t heard, facts that are not in evidence. It’s up to you as jurors to decide whether or not the expert opinion that we are going to hear is based on actual facts that were in evidence or were they different facts, or maybe just information that we never heard.
“But that’s up to you to decide. And you will hear me say that again in my charge to you at the end of the case. So you have heard the hypothetical, you heard the objection. I am going to overrule the objection but I want you to understand, I told you from the beginning, you are the judges of the facts.
“We heard a variety of witnesses yesterday, several witnesses. Each person gave their version of the facts and it’s up to you to decide what are the facts and whether or not this hypothetical has all the facts or some of the fact or whatever.
“So, you can answer, Mr. Gibbs.”

Pa.R.E. 705 states in part, that, “the expert must testify as to the facts or data on which the opinion or inference is based.” See Bernstein, 2008 Pa. Rules of Evidence, comment 6 to Pa.R.E. 705 (Gann), noting a hypothetical question remains the most effective tool for focusing the jury on the salient facts, and delineates the party’s version of the facts.

Our Pennsylvania appellate courts have recognized that the facts presented in a hypothetical question need not be proven to the satisfaction of the opposing parties, e.g., Battistone v. Benedetti, 385 Pa. 163, 122 A.2d 536 (1956); Kremer v. Janet Fleisher Gallery Inc., (1982 Pa. Super. Lexis 6072); Astro Remodeling and Westmoreland Casualty Co. v. W.C.A.B. (Julye), 80 Pa. Commw. 552, 471 A.2d 1320 (1984). The expert must disclose the facts upon which the expert relied in forming his opinion. If the jury does not accept the facts upon which the expert opinion was based, they are free to reject that opinion. Packel and Poulin, Pennsylvania Evidence, §705-1 (West 2007) and cases cited. Moreover, as the Supreme Court noted more than 50 years ago, the defendants were also permitted to present a hypothetical question based on factors they reasonably believed were established by the evidence. Battistone v. Benedetti, supra, 385 Pa. Super. at 170, 112 A.2d at 539, citing Gillman v. Media, 224 Pa. 267, 274, 73 A. 342, 344 (1909).

Next, the transcript reveals that as soon as the defense counsel objected to testimony which was beyond the scope of the expert report, the trial court sustained the objection and gave a cautionary instruction to the jury. September 5, 2008, N.T. 161-62. At this post-trial juncture, these defendants have declined to explain why they failed to object to the earlier questions posed at N.T. 160-61. A prompt, specific and timely objection to the question and not the answer would have prevented the testimony. Harman ex rel Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000).

b. The Diagnosis and Conclusions of Mr. Ferguson’s Treating Physician Were Properly Admitted into Evidence

During the Jimmy Buffett concert, Mr. Ferguson was punched in the left side of his face by the aggressor known at trial as “the coconut bra man.” The jury heard Edmund Pribitkin M.D., a surgeon who specializes in head and neck surgery, and facial, plastic and reconstructive surgery. Video, N.T. 12. Dr. Pribitkin performs most of the facial trauma surgery at Thomas Jefferson University Hospital, N.T. 13, and was plaintiff Ferguson’s treating physician.

Dr. Pribitkin explained that the plaintiff suffered a fracture across the bridge of his nose, and the left eye socket was pushed in. Video, N.T. 27. The orbit was crushed and forced into the nose area causing injury to Mr. Ferguson’s sinus and restriction to his gaze. Video, N.T. 27-29.

During surgery on September 2,2005, the fracture was exposed, the bones manipulated back into place and then secured with titanium plates. Video, N.T. 29-34. Dr. Pribitkin testified that the injury was caused by the assault at the Jimmy Buffett concert.

On February 23, 2006, the doctor prepared a report indicating good progress following the surgery. Dr. Pribitkin noted that the plaintiff, “may have infraorbital nerve injury... and may be permanent____” On the date his trial testimony was filmed, August 27, 2008, Dr. Pribitkin submitted a supplemental report, dated August 15, 2008. In this report the surgeon comments as his impression:

“Left infraorbital neuralgia following trauma. This has persisted for two years and has not improved and has not worsened, but is stable. I do not feel that it will be improved over time and feel this is a permanent nerve injury with the sequela as described above.”

It is this 2008 report to which these defendants object. Their arguments are without merit.

The 2008 medical report does not raise any new theories of injury nor does it create a “surprise” in its conclusion of permanency. The second report was relevant and admissible evidence. See Pa.R.E. 402. The 2006 report sufficiently apprised these defendants of the surgeon’s conclusions such that the defendants could have and did prepare a meaningful response. Their cross-examination of Dr. Pribitkin was vigorous, thoughtful and thorough. Video, N.T. 66-113.

3. The Jury Instructions Were Clear and Accurate and Did Not Mislead the Jury

The defendants have challenged the trial court’s charge to the jury. It is well settled that when reviewing a trial court’s instructions it must be viewed as a whole. Jury instructions must be upheld if they adequately and accurately reflect the law and are sufficient to guide the jury in its deliberations.

The Supreme Court has reiterated the guidelines in Stewart v. Motts, 539 Pa. 596, 606, 654 A.2d 535, 540 (1995):

“In examining these instructions, our scope of review is to determine whether the trial court committed clear abuse of discretion or error of law controlling the outcome of the case. Williams v. Philadelphia Transportation Company, 415 Pa. 370, 374, 203 A.2d 665, 668 (1964). Error in a charge is sufficient ground for a new trial, if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Glider v. Com. Dept. of Hwys., 435 Pa. 140, 151-52, 255 A.2d 542, 547 (1969). A charge will be found adequate unless ‘the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to fundamental error.’ Voitasefski v. Pittsburgh Rys. Co., 363 Pa. 220, 226, 69 A.2d 370, 373 (1949). A reviewing court will not grant a new trial on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental. Sweeny v. Bonafiglia, 403 Pa. 217, 221, 169 A.2d 292, 293 (1961); Giorgianni v. DiSanzo, 392 Pa. 350, 356, 140 A.2d 802, 805 (1958). In reviewing a trial court’s charge to the jury, we must not take the challenged words or passage out of context of the whole of the charge, but must look to the charge in its entirety. McCay v. Philadelphia Electric Company, 447 Pa. 490, 499, 291 A.2d 759, 763 (1972).”

The contention of each defendant is that it was legal error for the trial court to read a criminal statute in a civil case. Here, the court read the charge defining use of force for protection of others. 18 Pa.C.S. §506. The defendants do acknowledge that the Superior Court has recognized that the law governing the right of self-defense in civil cases is the same as in criminal context. 18 Pa.C.S. §505. Kitay v. Halpern, 104 Pa. Super. 167, 158 A. 309 (1932), quoted with favor in Simmons v. Galin, 2002 U.S. Dist. Lexis 1259 (E.D. Pa. 2002).

Self-defense and defense of others are established when the individual reasonably believes that he or another is in imminent danger of bodily harm. The United States District Court for the District of Columbia recently articulated “defense of another,” in a civil case which provides guidance here. Rude v. Adeboyeku, 552 F. Supp.2d 32, 35 (D.C. Cir. 2008):

“ ‘When it comes to determining whether force is reasonably necessary to defend a third person under attack, the focus ultimately must be on the intervenor’s [Ferguson’s], not the victim’s [Dr. Steven Cunning], reasonable perceptions of the situation.’ Frost v. United States, 618 A.2d 653, 661 (D.C. 1992). (citations omitted) In order to prove that an intervenor has the right to use force in the defense of another person, the intervenor must show that he reasonably and actually believed that the other person had a right of self-defense. Id. (citing Fersner v. United States, 482 A.2d 387, 390 (D. C. 1984)); Standardized Civil Jury Instructions for the District of Columbia § 19.06 (2007). Although a jury’s focus is on the intervenor’s ‘reasonable perceptions of the situation,. . . [t]he victim’s perception of the situation, however, is still relevant “to determine what the intervenor’s perceptions actually and reasonably were.” ’ Muschette v. United States, 936 A.2d 791, 799 (D. C. 2007) (citing Fersner, 482 A.2d at 392).”

Looking at the evidence in a light most favorable to the verdict winner, the plaintiff established that the coconut bra man was using foul and abusive language and was yelling at Loren Cunning. She started crying. September 5,2008, a.m., N.T. 53-54. When Steven Cunning Jr. (her fiance) came over, the coconut bra man started “chest-bumping” Steven and getting “in his face.” Then, when Steven’s mother said “Get away from my son,” September 5,2008, N.T. 55, Steven’s father, Dr. Cunning came forward toward Loren Cunning. This entire series of events occurred within 30-40 seconds. September 5, 2008, N.T. 56.

As soon as Dr. Cunning said, “Step away,” the coconut bra man threw a right hook and punched Dr. Cunning. Dr. Cunning was violently thrown two rows back, and the coconut bra man followed him. September 5, 2008, N.T. 56-57. Dr. Cunning was bleeding. As Dr. Cunning was being assisted by his son, Steven Jr., the coconut bra man walked over, making gestures with his fist, raising and clinching his fist, and took a fight stance. September 5, 2008, N.T. 58-59. At that point, plaintiff Ferguson related to the jury at September 5, 2008, N.T. 59-60:

“As soon as I saw him going back after Steve or his father, I jumped over seats that had been knocked down ____and pushed him, pushed the guy away from him____ I pushed him in his shoulder and his chest area, pushed him away from Dr. Cunning and Steve.”

Greg Ferguson stated that when the coconut bra man turned away from the other men and toward him, he never saw the punch coming. September 5, 2008, a.m., N.T. 60. His blood was everywhere.

Dr. Cunning did have a right to defend himself after he was attacked by the coconut bra man. See also, Hughes v. Babcock, 349 Pa. 475, 37 A.2d 551 (1944), defense of property; Kitay v. Halpern, 104 Pa. Super. 167, 158 A. 309 (1932), self-defense. The charge to the jury was an accurate statement of the law and was supported by the evidence and inferences in the trial. The defendants were not prejudiced by the instructions. Whether or not the jury accepted the plaintiff’s rationale for intervening in the incident, the jury verdict sheet provided them an opportunity to decide if Mr. Ferguson’s actions caused or contributed to his own injuries.

Finally, although EFC suggests that the plaintiff should have called for help prior to his interaction with the coconut bra man, the record reveals that Mrs. Cunning testified that she repeatedly shouted for help. She also looked around for the security staff in their yellow shirts. No one from NES or EFC or the Phillies assisted the plaintiff or Dr. Cunning or Loren Cunning until after Mrs. Cunning ran across the aisle and located NES personnel. September 4, 2008, N.T. 13. Mr. Monzo confirmed that Mrs. Cunning gave a prior consistent statement on the night of the incident. With this in mind, the exceptions to 18 Pa.C.S. §506 are not applicable and were not read to the jury.

C. CONCLUSION

For all of the reasons set forth above, all of the defendants’ motions for post-trial relief are denied and judgment will be entered in favor of Greg Ferguson in the amount of $150,000.

JUDGMENT ORDER

And now, March 19,2009, after considering all of the motions for post-trial relief filed by all of the defendants, and the plaintiff’s response thereto, and for the reasons set forth in the memorandum filed this date, it is hereby ordered that all of the defendants’ motions are denied, and judgment is entered in favor of Greg Ferguson in the amount of $150,000 and against Electric Factory Concerts Inc., National Events Services Inc. and the Phillies.