author: STEINBERG, J.,

text:
    Commonwealth v. Creazzo

      C.P. of Lehigh County,
    No. CR-4639-2014

      V. Paul Bernardino, for Commonwealth.

      Karen Schular, for defendant.
    June 18, 2015
   STEINBERG, J.,

defendant, Brian Creazzo, is charged with Homicide by Vehicle While Under the Influence, Homicide by Vehicle, Accidents Involving Death or Personal Injury While Not Properly Licensed, Involuntary Manslaughter, Recklessly Endangering Another Person, Driving Under the Influence of Alcohol or Controlled Substance, and three (3) summary offenses. It is alleged that the defendant, while under the influence of various controlled substances, drove his Chevrolet 1500 into the rear of the victim’s, Shane Uttard’s, Buick LeSabre. Mr. Uttard was pinned between the two (2) vehicles causing multiple traumatic injuries and his death. It is also alleged that the speed of the defendant’s vehicle at the time of impact was 61 m.p.h. The impact was described as a “straight on hit.” Mr. Uttard’s vehicle was stationary due to being disabled, and was on the right shoulder of Route 22 at the time of his demise.

On April 9, 2015, counsel for the defendant filed a “Motion To Suppress Blood Test Results.” The sole issue for consideration is whether the defendant, under the totality of the circumstances, voluntarily consented to the withdrawal of two (2) vials of blood at Lehigh Valley Hospital — Muhlenberg. Hearings were held on this matter on April 27, 2015, and June 8, 2015, during which Trooper Anthony Liptok and Trooper Christopher Maner testified.

Background

On May 13, 2014, Trooper Liptok arrived at the scene of this fatality, and learned that the defendant was in the rear of an ambulance. The two spoke briefly about the circumstances of this incident, and the defendant asked several times if the other individual was deceased. Trooper Liptok also asked the defendant if he was under the influence and the defendant said no.

The only testimony regarding the defendant’s willingness to consent to have his blood secured was the following:

BY MR. BERNARDINO:
Q: Describe how you went about asking him for consent. What were you asking him to consent to?
A: As in any general investigation of a crash, I asked the operator of Unit 1 if there’s medications prescribed or if he’s under the influence of any medications and/or drugs or impairing substances. He said he was not. And then I further explained the severity of the crash, and it’s common practice that police officers ask Unit 1, the operator of Unit 1, if they would submit to a voluntary blood draw and he advised he would.
(After Officer was handed his report)
THE COURT: Okay. Then, what did you explain to Mr. Creazzo?
THE WITNESS: Creazzo—I explained to Mr. Creazzo that based on the severity of the crash, that it’s common practice that we — that we ask the operator of Unit 1 to voluntarily submit to a blood draw.
Cross-Examination by Ms. Schular
BY MS. SCHULAR:
Q: Did you tell him he had a right to refuse consent?
A: Like I said, I just explained it’s common practice. I didn’t explain — I just basically explained that due to the severity — it’s just what I said — it’s common practice, in which he said yes right away.

Trooper Liptok described the defendant as “a little shaken up,” but was capable of understanding all of his inquiries. Additionally, the defendant did have a cut on his head, but he refused treatment after he was evaluated by ambulance personnel. Thereafter, the defendant was accompanied to a state police vehicle for transportation to the hospital by Trooper Maner and another trooper. Prior to entering the vehicle, a pat-down of the defendant was conducted. Once the defendant was placed in the patrol vehicle, he could not get out of the vehicle, and while Trooper Maner did not remember if the defendant was handcuffed, regulations require handcuffing.

During the defendant’s transportation by Trooper Maner, he was told that he was going to the hospital for a “voluntary blood.” The defendant replied that he would not have any problem with blood being drawn because he had nothing in his system.

Neither Trooper Liptok or Trooper Maner saw any indication that the defendant was under the influence of alcohol or drugs.

Discussion

The defendant disputes that he voluntarily consented to the testing of his blood. In cases involving consent, there are two inquires: (1) the constitutional validity of the encounter between the police and the defendant; and (2) if the encounter is lawful, the voluntariness of the consent to search. Here, the encounter was lawful, and so the consent to search becomes the exclusive focus. Commonwealth v. Caban, 60 A.3d 120, 125 (Pa.Super. 2012); Commonwealth v. Bell, 871 A.2d 267, 273 (Pa. Super. 2005); Commonwealth v. Moultrie, 870 A.2d 352, 359 (Pa.Super. 2005); Commonwealth v. Lamonte, 859 A.2d 495, 500 (Pa.Super. 2004).

Generally, police officers may not conduct a warrantless search or seizure unless an exception to the warrant requirement applies. “One such exception is consent, voluntarily given.” Bell, 871 A.2d at 273. See also Commonwealth v. Gillespie, 821 A.2d 1221, 1225 (Pa. 2003); Commonwealth v. Edwards, 735 A.2d 723, 725 (Pa.Super. 1999). “To establish a voluntary consensual search, the Commonwealth must prove that a consent is the product of an essentially free and unconstrained choice — not the result of duress or coercion, express or implied, or a will overborne — under the totality of the circumstances.” Lamonte, 859 A.2d at 500 quoting Commonwealth v. Acosta, 815 A.2d 1078, 1083 (Pa. Super. 2003); see also Moultrie, 870 A.2d at 359. Various factors have been identified in assessing the legality of a consensual search. The following is a non-exclusive list:

(1) the defendant’s custodial status
(2) the use of duress
(3) the defendant’s knowledge of his right to refuse to consent
(4) the defendant’s education and intelligence
(5) the defendant’s belief that no incriminating evidence will be found
(6) the extent and level of the defendant’s cooperation with the law enforcement personnel

See Commonwealth v. Gillespie, 821 A.2d at 1225 quoting Commonwealth v. Cleckley, 738 A.2d 426, 433 n 7 (Pa. 1999). See also Commonwealth v. Lamonte, 859 A.2d at 500 n 4, which identifies the following non-exclusive list: (1) the presence or absence of police excesses; (2) physical contact or police direction of the subject’s movements; (3) the demeanor of the police officer; (4) the location of the encounter; (5) the manner of expression used by the officer in addressing the subject; (6) the content of the interrogation or statements; (7) whether the subject was told that he or she was free to leave; and (8) the maturity, sophistication and mental or emotional state of the defendant (including age, intelligence and capacity to exercise free will). Id. quoting Strickler, 757 A.2d at 897-898; Caban, 60 A.3d at 127-128; Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa.Super. 2008); Moultrie, 870 A.2d at 359 n 8 citing Lamonte (quoting Strickler). See also Commonwealth v. Dunne, 690 A.2d 1233, 1236 (Pa.Super. 1997) quoting Commonwealth v. Blasioli, 685 A.2d 151, 156 (Pa.Super. 1996), which held the following factors were relevant: “the setting in which the consent was obtained; what was said and done by the parties present; and the age, intelligence, and educational background of the person consenting.” Id.

More recently, in Commonwealth v. Smith, 11 A.3d 562 (Pa. 2013), which contains facts similar to the within case, it was held that “no one fact, circumstance, or element of the examination of a person’s consent has talismanic significance.” Id. at 569, 572. Therefore, an officer’s failure to inform a defendant when seeking consent to test his blood, that the results may be used for criminal or prosecutorial purposes does not require a finding under the totality of the circumstances that the consent is invalid. Likewise, the failure to inform an individual of their right to refuse consent to a warrantless search does not vitiate the consent. Commonwealth v. Edwards, 735 A.2d 723 (Pa.Super. 1999); Schneckloth v. Bustamonte, 412 U.S. 218, 248-249 (1973)(Voluntariness is a question of fact to be determine from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing voluntary consent). Additionally, a consent search does not have to be memorialized by a signed written consent. Commonwealth v. Gibbons, 549 A.2d 1296, 1302 (Pa.Super. 1988) quoting Commonwealth v. Markman, 467 A.2d 336, 341-342 (Pa.Super. 1983)(“... Consent searches are part of the standard investigating techniques of law enforcement agencies. They normally occur on the highway, or in person’s home or office, and under informal and unstructured conditions).

In Smith, the police responded to an accident involving three vehicles, where upon their arrival, it was apparent that the occupants of one of the vehicles suffered serious injuries. One of the officers at the scene asked the appellee, “due to the seriousness of the accident with a potential fatality if he would submit to a chemical blood test.” Smith, 77 A.3d at 565. The officer also told the appellee that he could refuse the test. The appellee agreed to the testing. The Supreme Court in its holding that there is no requirement that “police officers must explicitly inform drivers consenting to blood testing that the results of the test may be used against them in criminal prosecutions...” considered the totality of the circumstances in finding the consent to be valid. Id. at 572. Furthermore, no per se rules or mandated explicit warnings are required before a consent can be upheld. The totality of the circumstances in Smith disclosed the aforementioned discussion with the appellee, and no evidence of any coercion or force on the part of the officer. The officer in Smith, like the troopers in this case, did not smell alcohol on the appellee.

Here, there was no deceit, misrepresentation, or coercion on the part of the troopers in seeking the defendant’s consent for the blood testing. He was able to understand the troopers’ request, and told them that he was not under the influence. Although he received a minor cut on his head, he refused treatment after he was evaluated by EMS personnel. The defendant was also well aware of the seriousness of the events, because he asked several times if the individual (Mr. Uttard) was deceased. As stated in Smith, “[o]n the basis of the totality of the evidence, when viewed objectively, ... a reasonable person’s consent to this blood draw would have contemplated the potentiality of the results being used for criminal, investigative, or prosecutorial purposes.” Id., at 573.

A review of the non-exclusive list of factors also supports the conclusion the defendant’s consent was “the product of an essentially free and unconstrained choice.” Id. He was being evaluated by medical personnel and was not under arrest when he was asked to consent to the blood test. Although he was not told that he could refuse the blood test, did not sign a consent form, and this court knows little about his “maturity, sophistication, and mental or emotional state” at the time consent was requested, the totality of the circumstances still support the conclusion that the consent was valid.

The most important factor to support the validity of the consent was the defendant’s belief that no incriminating evidence would be found. He responded to Trooper Maner’s comment that he was going to be transported to the hospital for a “voluntary blood,” by telling Trooper Maner that he would not have any problem with a blood draw because he had “nothing in his system.” Those comments demonstrate voluntariness, and a complete awareness of the scope of the consent.

For all the foregoing reasons, the troopers validly obtained the defendant’s consent for the blood test.

ORDER

AND NOW, this 18th day of June, 2015, following hearings held in this matter and after consideration of the defendant’s “Motion to Suppress Blood Test Results”;

IT IS HEREBY ORDERED that said motion is DENIED.

      .75 Pa.C.S. § 3735(a).

      . 75 Pa.C.S. § 3732(a).

      .75 Pa.C.S. § 3742.1(a).

      . 18 Pa.C.S. § 2504(a).

      . 18Pa.C.S. §2705.

      . 75 Pa.C.S. § 3802(d)(2).

      . 75 Pa.C.S. §§ 3309(1), 3361, 3736(a).

      . Notes of Testimony, Hearing (hereinafter N.T.H), January 20, 2015, pp. 67-69.

      . Id. at p. 34.

      . Motion To Suppress Blood Test Results, ¶¶ 14-15.

      . The defendant in his motion also contended that the police lacked probable cause to arrest him. The Commonwealth does not dispute this assertion, especially in light of the testimony from Trooper Liptok and Trooper Maner that they saw no signs of intoxication. Instead, the Commonwealth asserts the interaction between the defendant and the police was lawful, and he was not “seized.” Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa.2000)(“[I]n assessing the lawfulness of citizen/ police encounters, a central threshold issue is whether or not the citizen-subject has been seized. Instances of police questioning involving no seizure or detentive aspect (mere or consensual encounters) need not be supported by any level of suspicion in order to maintain validity). Here, the defendant was only transported to the hospital after he consented to the blood test. He was then taken to the state police barracks and then dropped-off at the Royal Motel. No charges were filed until September 9, 2014, almost four (4) months after Mr. Uttard’s death.
      In Commonwealth v. Douglas, 539 A.2d 412, 422-423 (Pa.Super. 1988), it was explained “that while a lawful arrest is ordinarily required before a suspect may be transported against his will, such an arrest is unnecessary when the suspect actually as opposed to impliedly consents to being transported...Consistent with other cases involving the consensual transportation of a suspect for questioning, testing or confirming of answers given to allay suspicions...the detention arriving from the consensual transportation of appellee to police barracks for a breathalyzer test did not constitute a custodial detention or arrest.” Id. (citations omitted). Here, the defendant agreed to accompany Trooper Maner to the hospital. He was neither coerced nor forced to do so. The troopers were merely doing their due diligence in light of the fatality. Therefore, the defendant was not under arrest when he was transported to the hospital, and the encounter was lawful.

      . The defendant is not challenging the lawfulness of the encounter. The troopers were authorized to investigate this fatality, and determine the facts and circumstances. “Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification and request consent to search, provided they do not induce cooperation by coercive means.” United States v. Drayton, 536 U.S. 194, 201 (2002); Commonwealth v. Au, 42 A.3d 1002, 1013 (Pa. 2012). Nothing presented at the hearings suggests there was anything coercive or confrontational about the encounter. See Drayton, 536 U.S. at 204.


source: Caselaw Access Project

author: NILON, J.,

license: Public Domain

text:
    Commonwealth v. Gakhal

      C.P. of Delaware County,
    Nos. CP-23CR-0003105-2014, 1070 EDA 2015

      Michael J. Malloy, for appellant.

      John F.X. Reilly, for Commonwealth.
    June 30, 2015
   NILON, J.,

Gurpreet Gakhal, hereinafter “Appellant”, argues that he is entitled to relief from his conviction for “Retaliation Against a Witness, Victim” and his resulting sentence. Appellant’s contentions are meritless.

Factual History:

First Incident- 9/12/12

On September 12, 2012, at approximately 10:00 p.m., Upper Darby Township Police investigated an incident between Naeem Zarin, hereinafter referred to as “Victim” or “Zarin” and Gurpreet Gakhal, hereinafter referred to as “Appellant,” occurring in the 300 block of Richfield Road in Upper Darby Township, Delaware County, Pennsylvania. (N.T. 1/14/2015 p. 7). The Victim alleged that the Appellant was causing a commotion in the street right outside the Victim’s house. (N.T. 1/13/2015 pp. 121-23). While looking out of his window at the commotion, the Appellant saw the Victim and called him outside. (N.T. 1/13/2015 pp. 121-23). The Victim went outside and the Appellant asked the Victim if he knew the Appellant. (N.T. 1/13/2015 pp. 125-27). The Victim responded negatively and the Appellant told him he would teach him who he was. The Appellant then accused the Victim of staring at the Appellant’s sister through the window. The Appellant then pointed a gun at the Victim through the car window and told the Victim he was going to shoot him. (N.T. 1/13/2015 pp. 128-29). A gun matching the description the Victim gave the police was later found at the Appellant’s home. (N.T. 1/14/2015 p. 14).

Second Incident- 2/9/14

At approximately 8:48 p.m. on the evening of February 9, 2014, Upper Darby Township Police responded to a report of an incident that occurred at a Lukoil Gas Station, located at 6901 Marshall Road, in Upper Darby Township, Delaware County, Pennsylvania. (N.T. 1/14/2015 pp. 26-27). Upon arrival, Officer Steven Russo interviewed Zarin. (N.T. 1/14/2015 p. 27). The Victim told the Officer that about fifteen minutes after he arrived at the Lukoil Gas Station, the Appellant entered and threatened to kill him. The threat was in response to a similar incident in which Zarin, the Victim, called the police after the Appellant was pointing his gun at the Victim and threatening him. (N.T. 1/13/2015 p. 29).

The Victim recounted that on February 9, 2014, on his way home from work, he stopped at the Lukoil Gas Station. While the Victim was conversing with the shopkeeper in the gas station, the Appellant walked into the station. (N.T. 1/13/2015 pp. 137-40). After shaking hands with the shopkeeper, the Appellant shook the Victim’s hand, squeezing the Victim’s hand very tightly, for a period of about ten seconds. (N.T. 1/13/2015 pp. 140-41). The Appellant then claimed he wanted to “clear” things up with the Victim regarding the prior incident between the two, which resulted in criminal charges being filed against the Appellant. (N.T. 1/13/2015 p. 141).

The Victim testified that the Appellant then stated: “... you’re the person I’ve been suffering from your sight, to put me behind the jail. You put behind me — I saw police station and cops for reason of you. So I came here.” (N.T. 1/13/2015 pp. 141-142). Appellant said, “I’m the person who knows very well know how to kill and how to die.” (N.T. 1/13/2015 p. 142). Appellant continued: “[bjecause he was keep saying to me, I’m — he had to clear with you. I’m here because I know I’m going to shoot you.” (N.T. 1/13/15 p. 145). Victim then attempted to leave the gas station, when the Appellant began walking behind him. (N.T. 1/13/2015 p. 146). The Appellant continued to threaten the Victim, he stated, “I have my buddies also. They’re waiting for you across the street. And we are watching you. I’m just -I’m waiting for my thing...” (N.T. 1/13/2015 p. 146). Appellant’s friend then got out of the car and came over to the Victim, the Appellant stated “I’m just waiting for the moment as soon as I’m clear from the department, I will teach you a good lesson you will remember forever.” (N.T. 1/13/15 p 148).

The Victim also testified “Because he was keep saying to me, I’m — he had to clear with you. I’m here because I know I’m going to shoot you.”(N.T. 1/13/15 p. 145). The Victim understood the warning as a legitimate threat upon his life, believing that when the Appellant got his confiscated gun back from the police, from the original incident, Appellant would shoot the Victim with it. (N.T. 1/13/2015 pp. 147-149). The Victim went to his car, drove a block away, and contacted the authorities. (N.T. 1/13/2015 p. 152).

Procedural History:

The Appellant, Gupreet Gakhal, was arrested for the first offense on September 12, 2012 and charged with: Simple Assault, Harassment, Terroristic Threats, and Possession of an Instrument of Crime. On June 24,2013, the Appellant was placed on A.R.D. for these offenses. Appellant was then arrested for the second offense on February 9, 2014, by Upper Darby Township Police Department. The Appellant was charged with: Terroristic Threats, Simple Assault, Harassment, and Retaliation Against a Witness or Victim. On March 26, 2014, after the second set of charges was filed, the Appellant was removed from the A.R.D. program.

On June 18, 2014, Michael J. Malloy, Esquire, entered his appearance on behalf of the Appellant. On June 25, 2014, a preliminary hearing was conducted by Magisterial District Justice Karapalides in Upper Darby District Court. On January 13, 2015, a jury trial commenced. On January 16,2015, the jury found the Appellant not guilty of: Simple Assault, Terroristic Threats, and Possessing an Instrument of Crime under the first set of charges, transcript number 8326-2012. The jury also found the Appellant not guilty of the charges of: Terroristic Threats and Simple Assault, but guilty of Retaliation against a Witness, Victim, or Party under the second set of charges, transcript number 3105-2014.

On April 13, 2015, Appellant was sentenced by the undersigned on the charge of Retaliation Against a Victim/Witness to: 111/2 months to 23 months imprisonment, to be followed by three years consecutive probation, plus fines and costs. On April 16, 2015, Michael J. Malloy, Esquire, on behalf of the Appellant, filed a timely “Notice of Appeal” to the Superior Court of Pennsylvania from the Judgment of Sentence entered in this matter.

Consequently, on April 20, 2015, the court directed Appellant to file a Concise Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). On May 6, 2015, Appellant filed a “Statement of Matters Complained of on Appeal,” raising the following issues for appellate review:

1) The Trial Court erred over Defendant’s objection in altering and amending the instruction to the jury as it relates to the charge of Retaliation of a Victim — Witness. Specifically, the trial court determined on its own that the full charge should be altered, therefore, chose to make a decision for the jury as to the facts of the case and the applicable law, rather than reading the jury the entire charge to the jury of intimidation/ retaliation of a witness.
2) That in altering/amending the instruction to the jury as to the charge of retaliation of a witness, the court impermissibly usurped the jury’s fact-finding role by telling them that they had already decided facts that would make reading/answering their questions and defining the instruction already given as moot. Clearly the jury’s questions did not evidence the Court’s direction to the jury to ignore the facts instructions previously given but rather clearly implied that they had not determined certain facts and issues seeking clarification of this charge and make the appropriate factual and legal decisions.
3) That the finding of the jury of not guilty of the charge of Terroristic Threats, not guilty of Simple Assault and guilty of Retaliation against Victim/ Witness is evidence of the fact that the court’s altering and amending the charge to the jury as to Retaliation of a Witness not answering the jury’s question and further infusing its own opinion as to the status of Mr. Zarin’s as a victim or a witness was improper, unlawful and prejudicial to the defendant causing the defendant to be wrongfully convicted of the sole charge of Retaliation of a Witness.
4) That the verdict rendered in the case of not guilty of the charge of Terroristic Threats, not guilty of Simple Assault, and guilty of Retaliation against Victim/ Witness was an inconsistent verdict rendered so by the improper and altered charge by the court.
5) That there were insufficient facts and evidence to sustain the verdict of Retaliation Against a Witness. Specifically that the jury specifically found that the defendant did not assault Mr. Zarin, did not threaten Mr. Zarin and therefore was not a witness or a victim.

DISCUSSION:

I. THE TRIAL COURT DID NOT ERR IN CLARIFYING THE VERDICT SLIP AS TO THE CHARGE OF “RETALIATION AGAINST A VICTIM — WITNESS” AS THE VICTIM IN THIS MATTER FALLS UNDER THE “VICTIM OR WITNESS” CATEGORY, NOT THE CATEGORY “ANY OTHER PERSON.”

At the close of trial, the undersigned gave the jury the standard jury instruction for the charge of “Retaliation Against a Witness or Victim.” The instruction provided:

... [t] o find the Defendant guilty of this crime, Retaliation against a Witness or Victim, you must find that each of the following two elements have been proven beyond a reasonable doubt: first, that the Defendant either harmed Mr. Zarin by an unlawful act or he engaged in a course of conduct that threatened or he repeatedly committed acts that threatened Mr. Zarin; second, that the Defendant did so in retaliation for his giving information to the police which was something lawfully done by Mr. Zarin in his capacity as a witness or victim. A witness is any person having knowledge of the existence or nonexistence of facts or information relating to a crime. A witness includes a person who can — who gives information to the police. It can also include a victim. Third...[i]f you find that the first two elements have been proven beyond a reasonable doubt, you should find the Defendant guilty. If you find the Defendant guilty, you must then go on to consider whether the Commonwealth has proven one more of the following facts beyond a reasonable doubt...that the Defendant’s retaliation was accomplished by employing force, violence, or deception or by threatening to employ force or violence upon Mr. Zarin.

(N.T. 1/15/2015 pp. 216-218).

It should be noted that the Appellant never objected to the court’s charge at the time it was read to the jury. As such, the Appellant’s argument is waived. Generally, failure to object to a proposed charge after completion of court’s instruction to jury waives any error for purposes of appeal. Com. v. Hoang Khai Tran, 453 A.2d 993 (Pa. Super. 1982).

The verdict slip in case number 3105-2014 as to the charge of “Retaliation Against a Witness or Victim” contained a general question, and then asked the jury an interrogatory related to the grading of the offense. {See 18 P.S.§ 4953 (a) and (b)(1)(f)). The interrogatory was needed as the statute provides:

(b) Grading.—The offense is a felony of the third degree if the retaliation is accomplished by any of the means specified in section 4952(b)(1) through (5) (relating to intimidation of witnesses or victims). Otherwise the offense is a misdemeanor of the second degree.

18P.S. § 4953 (b).

The applicable section from 4952(b)(l)(i) provides:

The offense is a felony ...if:
(i) The actor employs force, violence or deception or threatens to employ force or violence, upon the witness or victim or, with the requisite intent or knowledge upon any other person. 18 P.S. § 4952 (b)(l)(i).

The verdict slip originally asked:

Count 1. Retaliation Against Witness, Victim or Party
On February 9, 2014, did the Defendant, Gurpreet Gakhal, harm another by any lawful act or engage in the course of conduct or repeatedly commit acts which threaten another in retaliation for anything lawfully done in the capacity of witness, victim or party in a civil matter? Guilty or Not Guilty
If you find the Defendant “Not Guilty” of the above, proceed to Count 2; if you find the Defendant “Guilty” of the above, please answer the following:
Did the Defendant, Gurpreet Gakhal employ force, violence or deception or threaten to employ violence, upon the witness or victim or, with the requisite intent or knowledge upon any other person?
Guilty or Not Guilty

Verdict Slip at Count 1 for case number CP-23 CR-3105-2014. (emphasis added).

While the jury was deliberating, they submitted a written question for the undersigned: “Can we please have part 2 of Count 1 from February 9th, 2014, clarified for us, specifically ‘requisite intent or knowledge.’ Thank you.” (N.T. 1/15/15 p.241). The jury was referring to the language on the verdict slip which was mistakenly included, as it was not mentioned during jury instructions. The verdict slip should not have included the language “or with the requisite intent of knowledge upon any other person?” because that phrase did not pertain to the facts of this case. {See discussion N.T. 1/15/15 pp. 244-246). The undersigned then removed the inapplicable language from the verdict slip, with objection from the Appellant’s counsel duly noted. (N.T. 1/15/2015 pp. 237-48). As the court opined outside of the presence of the Jury:

... the subsection (b) indicates with the requisite fact against the victim or witness or with knowledge, intent against any other person, for example, a lawyer involved in the case in the administration of justice or a process server or police officer who made the arrest or anybody that may have been involved with the case who doesn’t fall under the category of victim or witness. That would require the jury to find under that section, which is not the section we’re dealing with here, but under that section that the person had the requisite intent or knowledge and that — the knowledge would have to be that this other person, say the lawyer, was involved in the prosecution of the case, and secondly, that they intended to intimidate that person in an attempt to obstruct the administration of criminal justice... Okay. We don’t have that in this case. The allegation is he retaliated against Mr. Zarin, the alleged victim/ witness. There’s no other party involved, and therefore, I propose to bring the jury back in, tell them that the Court made a mistake. That language should not have been included in the interrogatory. I’m going to get the interrogatory in advance, white out that language because I don’t think it applies.

(N.T. 1/15/2015 pp. 245-46).

The Appellant was later found guilty of the charge of “Retaliation Against a Witness or Victim” and the Appellant attributes the Jury’s finding to the fact that the court deleted a small section of the interrogatory on the verdict slip relating to the grading of the offense, which did not apply to the case at hand, and was confusing the jury as evidenced by their question.

The Appellant contends that the Trial Court erred in altering and amending the verdict slip as to the charge of “Retaliation Against a Witness or Victim” by removing pertinent language from the verdict slip. The Appellant’s “Statement of Matters Complained of on Appeal” references “altering and amending the instruction to the jury as it relates to the charge of Retaliation of a Victim — Witness”; however, the Appellant is referring to altering the verdict slip not the actual charge to the jury, which was in fact the standard jury charge for the crime alleged. (See entire standard charge which was given at trial, which is reprinted above).

The Appellant contends that the following language should have been included on the verdict slip: “that the defendant’s retaliation was accomplished by employing force, violence, or deception, or by threatening to employ force or violence, upon the witness/victim or, with the requisite intent or knowledge upon any other person.’’'’ (emphasis added).

A trial court should not instruct the jury on legal principles which have no application to the facts presented at trial. “In reviewing a challenge to the trial court’s refusal to give a specific jury instruction, it is the function of this Court to determine whether the record supports the trial court’s decision.” Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.Super.2006) (citation and brackets omitted). “[I]t has long been the rule in this Commonwealth that a trial court should not instruct the juiy on legal principles which have no application to the facts presented at trial.” Commonwealth v. McCloskey, 656 A.2d 1369, 1374 (Pa. Super. 1995). The reason for this rule is apparent; the jury’s duty is to render a true and correct verdict, and instructing the jury on legal principles that cannot rationally be applied to the facts presented at trial may confuse them and place obstacles in the path of a just verdict. Commonwealth v. White, 490 Pa. 179, 182, 415 A.2d 399, 400 (1980).

The charge given to the jury as well as the verdict slip provided to the jury, reflect the court’s view that Victim should be defined as a “victim or witness” under this statute and not as “any other person”. To include the language: “wzY/z the requisite intent or knowledge upon any other person,” would only serve to confuse the jury as it does not apply to the applicable facts presented.

Under this statute a “Victim” is defined as “Any person against whom any crime as defined under the laws of this State or of any other state or of the United States is being or has been perpetrated or attempted.” 18 Pa.C.S.§ 4951.

A “Witness” is defined as “any person having knowledge of the existence or nonexistence of facts or information relating to any crime, including but not limited to those who have reported facts or information to any law enforcement officer, prosecuting official, attorney representing a criminal defendant or judge, those who have been served with a subpoena issued under the authority of this State or any other state or of the United States, and those who have given written or oral testimony in any criminal matter; or who would be believed by any reasonable person to be an individual described in this definition.” 18 Pa.C.S.§ 4951.

Here, Mr. Zarin falls into both categories as he was both a Victim and a Witness. He was a Victim because there were crimes defined by the Commonwealth of Pennsylvania perpetrated against him by the Appellant. He was also a Witness because he reported facts to law enforcement officers and prosecuting officials, and he has testified in a criminal matter against the Appellant.

The provision that the Appellant had hoped to add to the verdict slip, which the court omitted applies only to “any other person,” which in this matter means any other person other than the witness or victim who is involved in the trial. For instance, this could mean retaliating against a police officer, a juror, a defense attorney, or a prosecutor. Clearly, the Victim does not fall into that category as he was directly involved in the proceedings as both a Victim and a Witness. The inclusion of the language “or, with the requisite intent or knowledge upon any other person,” has no application to the facts of this case and would only serve to confuse the jury.

II. THE TRIAL COURT DID NOT USURP THE JURY’S FACT-FINDING ROLE BY TAILORING THE VERDICT SLIP TO THE APPLICABLE FACTS

Appellant’s second issue raised on appeal alleges that the court erred by amending the juiy instruction/ verdict slip, improperly usurping the jury’s fact-finding role by deciding facts on its own, and telling the jury to ignore the court’s pervious instructions. The court did not err in omitting the language pertaining to “any other person” from the jury instruction or verdict slip. (See discussion supra I). Appellant argues that the question asked by the jury requesting clarification of the language pertaining to “any other person” was evidence that they had not decided yet on the “appropriate factual and legal decisions.”

The jury’s question pertained to language that was mistakenly included on the verdict slip, but which had not been charged upon by the court. The language at issue should not have been included in the jury charge because it was not relevant. The language the jury asked about was not supposed to be included on the verdict slip because it did not apply to the facts of the case. The jury had questions about that particular language because it was the first time they were hearing about it, as it had not been included or explained to them during charging.

A trial court is afforded broad discretion in phrasing jury instructions, and may choose its own wording as long as the law is clearly and accurately presented to the jury. When conducting a review of jury instructions, it is important we read the charge as a whole to ascertain whether it was fair or prejudicial. See Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273, 1274 (1990). The trial court is afforded broad discretion in phrasing jury instructions, and may choose its own wording as the long the law is clearly and accurately presented to the jury. Id.

III. THE JURY CHARGE WAS NOT PREJUDICIAL TO THE APPELLANT AND DID NOT CAUSE THE APPELLANT TO BE WRONGFULLY CONVICTED OF RETALIATING AGAINST A WITNESS

The Appellant contends that “the court’s altering and amending the charge to the juiy as to Retaliation of a Witness” prejudiced the Appellant’s defense and caused him to be wrongfully convicted of that charge. The court gave the standard jury charge for the crime of “Retaliation Against a Witness or Victim.” Specifically, Appellant contends the court’s decision to only give the juiy instruction that pertained to Witnesses and Victims was prejudicial, and the language pertaining to “any other person” should have been included. Again, as explained supra in Section I., the language pertaining to “any other person,” was not relevant to the facts of the case and a trial court is permitted to omit language from a standard jury instruction and tailor the instruction to the applicable facts. Omitting that language did not prejudice the Appellant’s defense.

As to the change in the verdict slip after the jury’s question, the verdict slip initially provided:

Did the Defendant, Gurpreet Gakhal employ force, violence or deception or threaten to employ violence, upon the witness or victim or, with the requisite intent or knowledge upon any other person?
Guilty or Not Guilty

The court subsequently omitted the phrase “or with the requisite intent or knowledge upon any other person?” from the verdict slip because Mr. Zarin met the definition of “witness” and “victim” and there was no evidence in the case as to the phrase “or with the requisite intent or knowledge upon any other person?” Zarin met the legal definition of both a ‘Victim’ and a ‘Witness’ in this matter as he participated in a police investigation claiming a crime had been committed against him (Victim) and participated in criminal proceedings against the Appellant (Witness). There was no evidence in the case as to “or with the requisite intent or knowledge upon any other person?”

IV. INCONSISTANT VERDICTS ARE NOT GROUNDS FOR REVERSAL OF A GUILTY VERDICT

The Appellant claims that the guilty verdict rendered in the Retaliation Against a Witness charge is inconsistent with the other not guilty verdicts in Simple Assault and Terroristic Threats due to the alleged improper jury instruction. As explained supra in Section L, the court gave the standard jury instruction in its entirety. The Appellant never objected to the court’s jury instruction and therefore any argument as to the jury charge is waived. Generally, failure to object to a proposed charge after completion of court’s instruction to the jury waives any error for purposes of appeal. Com. v. Hoang Khai Tran, 453 A.2d 993 (Pa. Super. 1982).

Moreover, the Appellant’s argument that the verdict is inconsistent because the jury found the Appellant guilty of Retaliation Against a Witness, but not guilty of Terroristic Threats and Simple Assault holds no merit. Even though those charges included many of the same elements, and the lack of consistency in the verdicts may be logically unsound, it is well established that a reviewing court cannot reject a jury’s inconsistent verdict. It is well settled that an inconsistent verdict is not grounds for reversal or for a new trial in Pennsylvania. Commonwealth v. Carter, 282 A.2d 375 (Pa. 1971). “It has long been the rule in Pennsylvania and in the federal courts that consistency in a verdict in a criminal case is not necessary.” Id. 282 A.2d at 376 (citations omitted).

The general issue and legality of inconsistent verdicts are allowed to stand so long as the evidence is sufficient to support the conviction. See Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932) (holding that “[consistency in the verdict is not necessary” and refusing to allow inconsistent verdicts to be upset by “speculation or inquiry” into the possibility of compromise or mistake on the part of the jury); United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (applying Dunn’s rule, which the Court explained as follows: “a criminal defendant convicted by a jury on one count could not attack that conviction because it was inconsistent with the jury’s verdict of acquittal on another count”). In affirming a verdict of aggravated assault and battery, despite the jury’s acquittal of the accused on a separate count of assault and battery, the court held that “[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence.” Commonwealth v. Carter, 282 A.2d 375, 376 (Pa. 1971) (citation omitted). Rather, an acquittal of a charge for which there was sufficient evidence for conviction is an occasion of a “jury’s assumption of a power which [it] had no right to exercise, but to which [it was] disposed through lenity.” Id. (citation omitted); Commonwealth v. Miller, 35 A.3d 1206, 1208-09 (Pa. 2012).

Although the jury found the Appellant not guilty of Terroristic Threats and Simple Assault, this does not mean they have to find him not guilty of Retaliation Against a Witness or Victim. The acquittals do not have to be interpreted as specific findings of fact in relation to the evidence. Though an inconsistent verdict under Pennsylvania law may stand; here, the court opines that the verdict was not inconsistent.

V. THERE WAS A SUFFICIENT FACTUAL BASIS FOR A GUILTY VERDICT IN THE CHARGE OF RETALIATION AGAINST A WITNESS, EVEN THOUGH THE JURY SPECIFICALLY FOUND THE APPELLANT NOT GUILTY OF TERRORISTIC THREATS AND SIMPLE ASSAULT

Lastly, the Appellant contends at number 5, “[s] pecifically that the jury specifically [sic] found that the defendant did not assault Mr. Zarin, did not threaten Mr. Zarin and therefore was not a witness or a victim.” The Appellant is mistaken. Although he was found not guilty of assault and terroristic threats, this is not a finding of innocence. The jury found him not guilty of those crimes but it is not a finding of innocence. The jury’s finding of not guilty means that the jury found that the Commonwealth failed to meet its burden of proof as to the elements of the crimes of assault and terroristic threats, nothing more. The jury’s finding does not mean that they believed nothing happened. On the contrary, they may have believed something happened but all of the elements of the crime were not proven by the Commonwealth.

A jury’s acquittal on certain criminal charges does not prove the Appellant’s innocence; it only proves the existence of reasonable doubt as to his guilt. Commonwealth v. Stokes, 38 A.3d 846, 861 (Pa. Super. 2011); citing United States v. Watts, 519 U.S. 148, 155 (1997). It is impossible to know exactly why a jury acquits a defendant on a certain charge, but finds him guilty on another charge. “[A]n acquittal is not a finding of any fact. An acquittal can only be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt. Without specific jury findings, no one can logically or realistically draw any factual finding inferences....” U.S. v. Watts, 519 U.S. 148, 155 (1997); citing U.S. v. Putra, 78 F.3d 1386, 1394 (9th Cir. 1996) cert. granted, judgment rev’d sub nom. U.S. v. Watts, 519 U.S. 148 (1997). Thus, a jury cannot be found to have “necessarily rejected” any facts when it returns a verdict of ‘not guilty’ and acquits the defendant, only that the burden of proof of beyond a reasonable doubt has not been met by the prosecution. A ‘not guilty’ verdict is not a finding of innocence.

In this matter, the jury only found that the Commonwealth did not meet its burden of proof on the charges of Simple Assault and Terroristic Threats. The jury did not make any findings of fact as to whether or not a crime actually occurred, only that the Commonwealth did not present the necessary evidence to prove beyond a reasonable doubt that a crime occurred. The Appellant mistakenly avers that “the jury specifically found that the defendant did not assault Mr. Zarin, did not threaten Mr. Zarin.” This is patently untrue. The jury’s acquittal on these two charges does not prove his innocence, as the Appellant supposes it does. A jury could acquit the Appellant on the specific charges of Simple Assault and Terroristic Threats, but still find him guilty of Retaliation Against a Witness-Victim.

a) The evidence was sufficient to prove the elements of Retaliation Against a Witness beyond a reasonable doubt.

Upon review, the appellate court must determine whether the evidence believed by the fact-finder was sufficient to support the verdict of guilty of Retaliation Against a Witness-Victim. The standard of review as to the sufficiency of the evidence of the evidence is well established. “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction ... does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979). The Superior Court of Pennsylvania articulated the standard of review for sufficiency of the evidence claims:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Baker, 72 A.3d 652, 657-58 (Pa. Super. 2013) appeal denied, 86 A.3d 231 (Pa.2014) (quoting Commonwealth v. Knox, 50 A.3d 749, 754 (Pa. Super. 2012), appeal granted on other grounds, 68 A.3d 323 (Pa. 2013)).

In this matter, the Commonwealth was able to present sufficient evidence, more than what was necessary to suffice the burden enumerated above. Therefore, the judgment of sentence should be upheld.

The charge of Retaliation Against a Witness-Victim, 18 Pa.C.S. § 4953(a), provides as follows:

(a) Offense defined. — [a] person commits an offense if he harms another by any unlawful act or engages in a course of conduct or repeatedly commits acts which threaten another in retaliation for anything lawfully done in the capacity of witness, victim, or a party in a civil matter.

First, we examine the elements of the statute. To establish this offense, the Commonwealth had to prove that Appellant, with the requisite intent, either: (1) harmed another by any unlawful act in retaliation for anything lawfully done in the capacity as a witness or victim; or (2) either: (a) engaged in a course of conduct which threatened another in retaliation for anything lawfully done in the capacity of a witness or victim, or (b) repeatedly committed acts which threaten another in retaliation for anything lawfully done in the capacity of a witness or victim. Commonwealth v. Ostrosky, 866 A.2d 423, 427-28 (Pa. Super. 2005) aff’d, 909 A.2d 1224 (Pa. 2006).

A plain reading of the statute dictates a breakdown of the elements as indicated above and the legislature’s use of the disjunctive “or” reveals that there are three different ways one can violate this statute. Id. At issue here is Part (2)(a) of the statute, as Part (1) deals with a physical harm and Part (2)(b) pertains to repeated threats. At issue is only a single instance in which the Appellant engaged in a course of conduct in which he threatened the Victim in retaliation.

The Victim testified that the Appellant verbally threatened his life, specifically stating it was in response to the Victim’s prior involvement in criminal charges being brought against the Appellant. Victim testified that the Appellant stated: “I’m just waiting for the moment as soon as I’m clear from the department, I will teach you a good lesson you will remember forever.” (N.T. 1/13/15 p 148). “Because he was keep saying to me, I’m — he had to clear with you. I’m here because I know I’m going to shoot you.” (N.T. 1/13/15 p. 145). Victim also testified that Appellant stated, “I’m waiting for my thing to get back from the police...I will shoot you, and you are lucky you are still surviving today.” (N.T. 1/13/14 pp. 147-148). This testimony is credible evidence that the Appellant threatened the Victim in retaliation for lawfully participating in a police investigation and criminal proceedings against the Appellant.

CONCLUSION:

Appellant’s specious argument is premised on a false assertion that an acquittal to certain criminal charges proves his innocence. In fact, the acquittal only proves the existence of reasonable doubt as to his guilt to those charges. No one can draw any factual inferences from the jury’s acquittal. Commonwealth v. Stokes, 38 A.3d 846, 861 (Pa. Super. 2011). An acquittal is not a finding of innocence.

For the foregoing reasons, this Court’s Judgment of Sentence should be affirmed on appeal.

      . 18 Pa.C.S. § 4953.

      . This incident relates to the charges against the Appellant at CP-23-CR-8326-2012 (Case number 1).

      . This incident relates to the charges brought against the Appellant at CP-23-CR-3105-2014 (Case number 2). This is the case currently on appeal.

      . 8 Pa.C.S. §2701.

      . 18 Pa.C.S. §2709.

      . 18 Pa. C.S. §2706.

      . 18 Pa.C.S. § 907(b).

      . 18 Pa.C.S. § 2706(a)(1).

      . 18 Pa.C.S. § 2701(a)(3).

      . 18 Pa.C.S. § 2709(a)(4).

      . 18 Pa.C.S. § 4953(a).

      . Initially, it should be noted that the Appellant in his “Statement of Matters Complained of on Appeal” in numbers 1-4 mistakenly averred that the trial court erred in “altering and amending the instruction to the jury as to Retaliation of a Victim-Witness.” It may be a matter of nomenclature, but the court did not alter or amend the jury instruction but rather “altered” the verdict slip. In fact, the court read the standard jury instruction and did not alter or amend the instruction. However, the court did amend the verdict slip. The verdict slip was tapered so that the language in the interrogatory fit the facts of the case. A phrase that did not apply to the facts in the case was removed from the verdict slip.

      . 15.4953 (Crim) Retaliation Against Witness or Victim, Pa. SSJI (Crim), §15.4953 (2005).


author: ZULICK, J.,

text:
    Maione v. Greenway Center, Inc.

      C.P. of Monroe County,
    No. 4776 CV 1999
    April 2, 2015
   ZULICK, J.,

This case is before the court on Plaintiff’s Petition for Leave to Amend the Caption under Pa.R.C.P. 1033 and, alternatively, Plaintiff’s Petition for Permission to File an Interlocutory Appeal Nunc pro Tunc. The case arose when Plaintiff’s decedent, Mark Willet, died on June 24, 1997 while a patient at Greenway Center, a drug and alcohol treatment facility in Henryville, Pennsylvania. Plaintiff Annette Maione filed a praecipe to issue writ of summons against Greenway Center, inc. (GCI) on June 23, 1999, the day before the statute of limitations expired. Maione filed a motion to correct the name of the defendant on June 3, 2002, after discovering that Winco Acquisition, Inc. d/b/a Greenway Center (Winco) was the entity operating Greenway Center at the time of Wiliet’s death.

Plaintiff’s June 3, 2002 Motion to Correct the Name of the Defendant requested the court to change the name of the defendant to either “Winco Acquisition, Inc. d/b/a Greenway Center” or “Greenway Center Inc. as successor in interest to Winco Acquisition, Inc.” Plaintiff’s Motion to Correct Name filed June 3, 2002. A hearing was held in this court in October, 2002. The Hon. Peter J. O’Brien granted Plaintiff’s motion and allowed the caption to be amended to name Defendant “Greenway Center, Inc. as successor in interest to Winco Acquisition, Inc.” Decision of October 9, 2002, Hon. Peter J. O ’Brien, J.

After the defendant’s name was amended, Winco’s insurer, Essex Insurance Company, refused to insure GCI. GCI filed a declaratory judgment action in this court on December 19, 2003. The case removed to federal court on diversity grounds by Essex. The U.S. Third Circuit Court of Appeals eventually concluded that GCI was not a successor in interest to Winco and had not met the factors for de facto merger. Essex was thus not obligated to insure GCI. See Greenway Center, Inc. v. Essex Insurance Company, 369 Fed.Appx. 348 (3d Cir. March 11, 2010).

On October 13, 2010, the Plaintiff in the present case filed a second motion to correct the name of the defendant to Winco Acquisitions, Inc. d/b/a Greenway Center, presumably after receiving the opinion of the Third Circuit. Winco was again permitted to intervene. In an opinion dated March 3,2011, the Hon. Linda Wallach Miller denied the petition as it had been previously heard and decided by Judge O’Brien in 2002. Judge Miller cited the law of the case doctrine and the coordinate jurisdiction rule.

After no activity on the docket for several years, the court scheduled the case for dismissal as moribund. Plaintiff filed an objection to termination of the action on October 14, 2014, requesting again to amend the name of the defendant, stating that the Plaintiff cannot proceed in the action under the current caption. The matter was stricken from the termination list. The Plaintiff filed the current petition for leave to amend caption, and in the alternative, for permission to file interlocutory appeal nunc pro tunc on October 31, 2014.

Winco argues in response that this issue has been raised and decided by Judge O’Brien and by Judge Miller and the petition should be dismissed. It also contends that replacing Greenway Center, Inc. with Winco Acquisition, Inc. d/b/a Greenway Center would be bringing in a new and distinct party after the expiration of the statute of limitations and should not be allowed. Winco additionally moves to receive counsel fees pursuant to 42 Pa.R.C.P. § 2503. All parties, including Winco as intervenor, filed briefs, and arguments were held in this court on March 2,2015.

DISCUSSION

Law of the Case Doctrine and the Coordinate Jurisdiction Rule

The superior court has addressed the law of the case doctrine as follows:

The law of the case doctrine refers to a family of rules which embody the concept that a court involved in the later stages of a litigated matter should not reopen questions decided by another judge of that same court or by a higher court in the earlier phases of the matter.... The various rules which make up the law of the case doctrine serve not only to promote the goal of judicial economy... but also operate (1) to protect the settled expectations of the parties; (2) to insure uniformity of decisions; (3) to maintain consistency during the course of a single case; (4) to effectuate the proper and streamlined administration of justice; and (5) to bring litigation to an end.
Commonwealth v. McCandless, 880 A.2d 1262 (Pa. Super. 2005).

“Generally, the coordinate jurisdiction rule commands that upon transfer of a matter between trial judges of coordinate jurisdiction, a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge,” Zane v. Friends Hosp., 836 A.2d 25 (Pa. 2003).

This general prohibition against revisiting the prior holding of a judge of coordinate jurisdiction, however, is not absolute. Departure from the rule is allowed in “exceptional circumstances” when there has been a change in the controlling law or where there was a substantial change in the facts or evidence.... [A]n exception is permitted where the prior holding was clearly erroneous and would create a manifest injustice if followed.... The purpose for this limited exception is largely self-evident. To accede to a coordinate judge’s order that is clearly erroneous would be not only to permit an inequity to work on the party subject to the order, but would allow an action to proceed in the face of almost certain reversal on appellate review. Moreover, the requirement that the prior holding also create a manifest injustice serves as a significant curb on the exception so that it would apply to only those situations in which adhering to the prior holding would be, in essence, plainly intolerable.

Id. at 29-30.

Here, two judges in this court have already addressed the issue of replacing Greenway Center, Inc. as the defendant with a different defendant, Winco Acquisitions, Inc. d/b/a Greenway Center. Plaintiff’s motion before Judge O’Brien requested either that the defendant’s name be changed to “Greenway Center Inc. as successor in interest to Winco Acquisition, Inc.” or “Winco Acquisition, Inc. d/b/a Greenway Center.” Judge O’Brien changed it to the former, implicitly declining to allow Plaintiff to bring Winco Acquisition, Inc. d/b/a Greenwood Center into the case as a new defendant after the statute of limitations had expired.

Judge Miller properly found that the law of the case doctrine prevented her from revisiting Judge O’Brien’s earlier decision on the request to substitute Winco after the statute of limitations had run. Plaintiff is not citing any new facts or law which would call for a different result now. The decision of the Third Circuit did not agree with the determination of this court that GCI was a successor in interest to Winco, but this court’s earlier decision remains the law of this case.

Maione has also not established that the court’s refusal to substitute Winco in 2002 amounted to a manifest injustice. The Plaintiff sued GCI. GCI was a corporate entity that did not exist when Plaintiff’s decedent’s death occurred:

9. Greenway Center, Inc. was set up to assume the stock from Winco Acquisition, Inc. when the bankruptcy was closed and to act as its successor in operating the facility in Henry ville.
Finding of Fact, Decision of October 9, 2002 (Hon. Peter J. O’Brien, J.)

The Supreme Court of Pennsylvania has framed the issue as “whether the right party was sued but under a wrong designation, or whether a wrong person was sued and the amendment was designed to substitute another and distinct party. Amendment after a period of limitations is permissible in the former situation; in the latter it is not.” Paulish v. Bakaitis, 275 A.2d 318, 321 (Pa. 1971). “While it is true that the name of a party already on the record may be corrected at any time, it is elementary that a new party, or a party in a different capacity, cannot be brought on the record after the statute of limitations has become a bar.” Waugh v. Steelton Taxicab Co., 89 A.2d 527, 529 (Pa. 1952) (emphasis omitted). A change in a party name that results in different assets being subject to liability indicates the change will bring in another distinct party. Jacobs Air Conditioning & Heating v. Associated Heating & Air Conditioning, 531 A.2d 494, 496 (Pa. Super. 1987).

The Supreme Court addressed a similar situation in Hoare v. Bell Tel. Co. of Pennsylvania, 500 A.2d 1112, 1113 (Pa. 1985). There the plaintiffs sued “Monarch Furniture Company, a corporation t/d/b/a Slumber City” for a fall injury. After the statute of limitations ran, they discovered that Monarch Furniture Company was the fictitious name of an individual, Milton Kotier, at the time of the fall. They sought to amend their case to bring Kotier into the suit. The supreme court refused to do so:

The Appellees did not seek to amend their complaint to substitute an individual doing business under a fictitious name for a non-existent corporation. The Appellees originally sued Monarch, a viable and existing corporate entity which is subject to suit, and did not sue Kotier, an individual also subject to suit. Unlike Waugh, the Appellees wish to add a party to the lawsuit. While it is true, as the Superior Court noted, that our rules permit liberal amendment of the pleadings in order to secure a proper determination of the merits, amendment must not be so liberally allowed as to redraft a legislated statute of limitations

Id. at 1114.

Plaintiff’s attempt to bring Winco into this suit many years after the statute of limitations has expired has no merit and is not manifestly unjust.

Plaintiff’s Request for Leave to File an Interlocutory Appeal

Plaintiff seeks leave to file interlocutory appeals of Judge O’Brien and Judge Miller’s orders denying Plaintiff the right to join Winco as a new party defendant. An interlocutory appeal may be filed by permission under limited circumstances:

(b) Petition for permission to appeal. Permission to appeal from an interlocutory order containing the statement prescribed by 42 Pa.C.S. §702(b) may be sought by filing a petition for permission to appeal with the prothonotary of the appellate court within 30 days after entry of such order in the lower court or other government unit...
P.R.A.P. 1311(b).

The statement required from this court for permission to appeal is described as follows:

(b) Interlocutory appeals by permission.—When a court or other government unit, in making an interlocutory order in a matter in which its final order would be
within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.
42 Pa. Cons. Stat. Ann. § 702 (b).

The issue now before the court is a narrow one. Should Plaintiff be allowed to file an interlocutory appeal nunc pro tunc from orders issued on October 9, 2002 by Judge O’Brien and on March 3, 2011 by Judge Miller? These appeals were required to be filed within 30 days from the dates of the respective orders. Plaintiff’s burden of proof to obtain an allowance of appeal nunc pro tunc requires proving that unusual circumstances prevented Plaintiff from filing these appeals in a timely fashion:

“[A]n appeal nunc pro tunc is a recognized exception to the general rule prohibiting the extension of an appeal deadline.... [It] is intended as a remedy to vindicate the right to an appeal where that right has been lost due to certain extraordinary circumstances.” Union Elec. Corp. v. Bd. of Prop. Assessment, 746 A.2d 581, 584 (Pa.2000). “’[A]n appeal nunc pro tunc may be granted ... in order to prevent injustice’ in unique cases, ‘upon a showing that unusual circumstances prevented a party from timely filing.” In re Borough of Riegelsville from Bucks Cnty. Bd. of Assessment & Revision of Taxes, 979 A.2d 399, 402-03 (Pa.Cmwlth.2009) (quoting Hanoverian, Inc. v. Lehigh Cnty. Bd. of Assessment, 701 A.2d 288, 289 (Pa.Cmwlth.1997)). This Court has explained:
[N]unc pro tunc relief may only be granted in limited circumstances. ‘When a statute fixes the time within which an appeal may be taken, a court may not extend that time period or allow an appeal nunc pro tunc absent a showing that extraordinary circumstances involving fraud or its equivalent, duress, or coercion caused the delay in filing an appeal.’
Id. at 402.
Arena Beverage Corp. v. Pennsylvania Liquor Control Bd., 97A.3d444,448-49 (Pa. Commw, Ct. 2014)appeal denied sub nom. Arena Beverage Corp. v. Pennsylvania Liqour Control Bd., 108 A.3d 37 (Pa. 2015).

Plaintiff’s reason for not filing an appeal from Judge O’Brien’s order in 2002 was because GCI “promptly filed a declaratory judgment action” to determine whether its insurer, Essex Insurance Company, had an obligation to provide coverage to GCI. Plaintiff’s brief. However, the Essex declaratory judgment action was not filed until December 19, 2003. See Greenway Center, Inc. v. Essex Insurance Company, Annette Maione, Individually and as Administratrix of the Estate of Mark Willet, No. 10173 Civil 2003, Monroe County Court of Common Pleas. That litigation then took more than six years, ending in a determination by the federal courts that GCI was not a successor in interest to Winco and that Essex was not obligated to insure GCI under its contract with Winco. Plaintiff gives no reason why Judge Miller’s order was not promptly appealed in 2011.

These reasons for not pursuing a timely interlocutory appeal do not amount to fraud, duress, or coercion that prevented the filing of the appeal. This request for leave to file appeals nunc pro tunc will therefore be denied.

Intervenor’s Motion for Sanctions

Intervenor Winco Acquisition, Inc.’s motion for sanctions pursuant to 42 Pa.R.C.P. §2503 Right of Participants to Receive Counsel Fees will be denied, as this petition raised the question of the right to a nunc pro tunc appeal which was not previously addressed. That being said, the other issues raised here were already addressed by Judge O’Brien and Judge Miller.

ORDER

AND NOW, this 2nd day of April, 2015, upon consideration of Plaintiff Annette Maione’s petition, and the briefs and arguments of both parties, IT IS ORDERED, as follows:

1. Plaintiff’s Petition for Leave to Amend the Caption is denied;

2. Plaintiff’s Petition for Permission for Nunc Pro Tunc Appeal of the Interlocutory Orders of October 9,2002 and March 3, 2011 is denied;

3. Intervenor Winco Acquisitions, Inc.’s Motion for Sanctions pursuant to 42 Pa.R.C.P. § 2503 is denied.

4. A status conference to schedule the earliest date on which the case may be tried pursuant to P.R.C.P. 212.1 shall be held on the 21st day of May, 2015, at 2:00 o’clock p.m., in Courtroom No. 5, Monroe County Courthouse, Stroudsburg, Pennsylvania.


text:
    In re W.M.

      C.P. of Lehigh County,
    No. CP-39-JV-560-2014

      Michael Edwards, for Commonwealth.

      Andrea Olsovsky, for juvenile.
    May 11, 2015
   STEINBERG, J.,

On September 18, 2014, the juvenile, W.M., was adjudicated delinquent on charges of Criminal Mischief, Furnishing Alcohol to Minors, and Underage Drinking. He was placed on probation and ordered to pay court costs and make restitution to Salisa Berrien in the sum of $5,000.00

Due to the lack of agreement concerning the restitution, hearings were held in an effort to determine the appropriate amount of restitution. The Commonwealth is requesting restitution in the amount of $28,308.52. The juvenile believes that he should only be ordered to pay “a reasonable restitution amount, an amount supported by the evidence, and within the juvenile’s ability to pay.” It is counsel’s calculation that the amount of restitution ordered should be approximately $4,680.00. Both counsel have submitted memorandum of law addressing the restitution issues.

Background

On July 11,2014, the juvenile held a house party at the home of Salisa Berrien, which is located at 450 Daniel Street in Allentown. His decision to take over the home of Ms. Berrien, who is his aunt, was done without her permission. She was unaware that the juvenile intended to hold this party, and was not present during the debauchery. She first observed the havoc wreaked upon her home on July 16, 2015.

The juvenile, who may have advertised this party on Facebook, gained access to his aunt’s home with a code to her garage door. More than twenty (20) people were present when the police responded to a neighbor’s report of “flashlights” at Ms. Berrien’s home, which was for sale. This number may not have been an accurate count on the attendees, because the same neighbor reported that upon the arrival of the police, people were running through his yard.

This party may not have reached the epic proportions that the movie “Project X” depicts, but it involved the same activities. Ms. Berrien testified throughout the juvenile proceedings to the damage and vandalism to her home. She identified damage to various furniture, and how various bedding, including comforters and sheets located in different bedrooms, were soiled. The Commonwealth introduced a series of photographs depicting the items Ms. Berrien testified were damaged or soiled. She also prepared an estimate of the damage to her property and the cost to clean or replace both furniture and bed and bath items. For example, her white sofa and love seat could not be cleaned, and the cost to replace that furniture was $3,000.00. The original purchase price was $6,000.00. Ms. Berrien’s estimates were based on quotes she testified were received from various businesses such as Best Buy, Sleepys, and Bed Bath & Beyond. None of those quotes were attached to her estimate. A corresponding document prepared by State Farm provided a comprehensive estimate to repair damaged floors and walls, and clean carpets. For example, wood floors in various rooms required a “screen and coat., [as well as] dustless floor sanding.” Carpets in different rooms had to be “cleaned and deodorized.” The estimate for what State Farm called “Vandalism and Malicious Mischief’ was $6,046.03. Ms. Berrien had a $1,000.00 deductible on her policy.

Ms. Berrien also testified that various items were stolen from her household. Those items include, but are not limited to, a “Blackberry Bold 9930, iPod nano w/Multi-touch, BackBeat Go 2 earbuds, FIP Photosmart 7520,” and jewelry. The total value of those items, according to Ms. Berrien, was approximately $4,500.00.

The Commonwealth also introduced the testimony of Jason Parton from the Lehigh County Juvenile Probation Department, whose testimony related to the juvenile’s ability to pay restitution. He began his supervision of the juvenile in July of 2014. His testimony outlined the juvenile’s educational and extracurricular activities. Although the juvenile has no employment history, he plans to attend college and has no physical or intellectual limitations with the exception of a diagnosis of ADHD.

Discussion

The juvenile and his fellow partygoers enjoyed themselves at Ms. Berrien’s expense, but the juvenile now faces the unpleasant consequences of his actions. It is not suggested that the juvenile caused all of the damage to Ms. Berrien’s home, but as the event planner, he certainly set in motion the events which caused the damage. The issue for this Court to resolve is whether the juvenile should be held responsible for the entire damage.

The statutory authority permitting an order of restitution is found in Section 6352 of the Juvenile Act, which in pertinent part provides the following:

(a) General rule.—If the child is found to be a delinquent child the court may make any of the following orders of disposition determined to be consistent with the protection of the public interest and best suited to the child’s treatment, supervision, rehabilitation and welfare, which disposition shall, as appropriate to the individual circumstances of the child’s case, provide balanced attention to the protection of the community, the imposition of accountability for the offense committed and the development of competencies to enable the child to become a responsible and productive member of the community:
(5) Ordering payment by the child of reasonable amounts of money as fines, costs, fees or restitution as deemed appropriate as part of the plan of rehabilitation considering the nature of the acts committed and the earning capacity of the child, including a contribution to a restitution fund, (emphasis added)

42 Pa.C.S. § 6352(a)(5).

In In the Interest of M. W., 725 A.2d 729, 732-733 (Pa. 1999) it was explained that this section “does not contain language specifically requiring that the loss or injury be a direct result of the juvenile’s wrongful conduct.” Id. However, the juvenile court is invested with a “broad measure of discretion to apportion responsibility for damages based upon the nature of the delinquent act and the earning capacity of the juvenile.” Id. (emphasis added) See also In the Interest of J.G., 45 A.3d 1118, 1120-1121 (Pa. Super. 2012) quoting Appeal of B.T.C., 868 A.2d 1203, 1204-1205 (Pa. Super. 2003).

The exercise of that discretion begins with the recognition that “one ofthe purposes ofthe Juvenile Act is to hold children accountable for their behavior.” In the Interest of D. G., 2015 WL 1813944 (Pa. Super.) quoting In the Interest of M.W., 725 A.2d at 732. M. W. was an escapee from a residential juvenile treatment facility, who with several others, broke into a private residence. While inside, extensive damage was done to the residence, including punching holes in walls, damage to furniture, and setting fires on carpets. Id. at 730. The actual damages were $29,764.34, but the juvenile was only ordered to pay $1,000.00. The juvenile court reasoned that the sum of $1,000.00 was reasonable because “it was impossible to distinguish between damages caused by one trespasser and those caused by the others.” Id. The Supreme Court in finding no abuse of discretion held that “[considering M Ik’s admitted participation in the criminal episode, his agreement to make reparation to resolve the matter, the small measure of restitution actually ordered (approximately three percent of the actual damages), and the rehabilitative policies underlying the Juvenile Act, the juvenile court appropriately ordered restitution.” Id. at 733.

Both counsel in their memorandum point to the four (4) factors identified in In the Interest of Dublinski, 695 A.2d 827 (Pa. Super. 1997) for fashioning a restitution award in juvenile court. Specifically, the juvenile court must consider the following:

(1) The amount of loss suffered by the victim; (2) The fact that defendant’s action caused the injury; (3) The amount awarded does not exceed defendant’s ability to pay; [and] (4) The type of payment that will best serve the needs of the victim and the capabilities of the defendant.

Id. at 829.

A review of these factors not only requires consideration of the juvenile’s actions on the night of the party, but also his earning capacity. In Dublinski, it was explained that this third factor could be determined by examining relevant factors such as:

[the juvenile’s] mental ability, maturity and education; [ ] work history, if any; the likelihood of [ ] future employment and extent to which [the juvenile] can reasonably meet a restitution obligation; the impact of a restitution award on [the juvenile’s] ability to acquire higher education and thus increase [the juvenile’s] earning capacity; and [the juvenile’s] present ability to make restitution.

Dublinski, 959 A.2d at 830.

Here, the juvenile’s organizational skills to arrange the house party without Ms. Berrien’s or any other adults awareness, suggests some level of sophistication. He also was able to secure Ms. Berrien’s garage door code.

His background, as counsel for the juvenile concedes in her memorandum, belies any concerns about his earning capacity. “W.M. does not suffer from any physical disabilities that would prevent him from working, he plans on attending community college next year.” This assessment is consistent with the testimony of his probation officer.

The juvenile’s present ability to pay was addressed in Commonwealth v. B.D.G., 959 A.2d 362, 369-370 (Pa. Super. 2008) wherein it was explained that “such a circumstance is the norm when dealing with a juvenile and cannot serve as a disqualifying factor or else the court’s ability to avoid restitution would cease to exist in the vast maj ority of the cases.” Id. Furthermore, as stated in B.D. G., but equally applicable to the within case, “given that [the juvenile] was eighteen years old at the time of the hearing and the trial court determined that he was an able-bodied, intelligent, young man capable of securing employment, there was no abuse of discretion in fashioning an award that required payments over a long period of time.” Id.; See also In the Interest of J.E.D., 379 A.2d 288 (Pa. Super. 2005).

In Dublinski, which involved extensive vandalism to two unoccupied homes by the juvenile and “a group of her juvenile acquaintees,” the amount of damage was $153,000.00. The juvenile was ordered to pay $10,000.00 towards restitution. On appeal, the restitution order was vacated for a variety of reasons, including the juvenile court’s failure “to consider the proportion” of the damage caused by the juvenile. Id. at 829. In that regard, it was held that a “but-for” analysis in which the juvenile will be liable for restitution for all damages which could not have occurred “but for” his criminal conduct must be applied. Id. at 830 citing Commonwealth v. Gerulis, 616 A.2d 686, 697 (Pa. Super. 1992); see also Commonwealth v. B.D.G., 959 A.2d at 367; Commonwealth v. Pappas, 845 A.2d 829, 842 (Pa. Super. 2004).

It is the Commonwealth’s burden to prove its entitlement to restitution. B.D.G., 959 A.2d at 376. The amount of restitution cannot be speculative, excessive, or lack support in the record. In the Interest of D.G., 2015 WL 1813944 at * 6. See also In the Interest of J.G., 45 A.3d 1118, 1122 (Pa. Super. 2012). See also Commonwealth v. Dohner, 725 A.2d 822, 824 (Pa. Super. 1999)(Restitution may be imposed only for those crimes to property or person where the victim suffered a loss that flows from the conduct that forms the basis of the crime for which the defendant is held criminally accountable).

Here, the amount of restitution requested is $28,308.52. Much of that request involves items that needed to be cleaned or items that Ms. Berrien contends were soiled. She is seeking to replace rather than clean the bedding and towels. The State Farm Estimate can be characterized as the costs to clean, paint, and refinish carpets, walls, and floors. Various estimates were presented to support the restitution claim along with photographs of various items. The pictures, however, were not vivid and failed to provide this Court with obvious evidence of the damage to all of the property. This observation is not intended to discount Ms. Berrien’s observations, but merely to point out that a picture is not always worth a thousand words.

A portion of the restitution claim contends that items were stolen during the house party. The juvenile was not alleged to have stolen the items, and he was not charged with theft. The items may have been stolen on the night of the party, or some other day during Ms. Berrien’s absence. Commonwealth v. Reed, 543 A.2d 587 (Pa. Super. 1988)(Restitution cannot be ordered for property which Commonwealth has not proven was either stolen or recovered by the defendant). Any order of restitution for items stolen based upon Ms. Berrien’s subsequent inventory of missing items would be speculative and ordering restitution for those items would be illegal. Therefore, the sum of approximately $4,379.95 will be deducted from the restitution award. Likewise, this Court believes the request for food and Trojans has not been satisfactorily explained and so $361.49 will not be part of the restitution awarded.

The Commonwealth’s request for the remaining $23,777.07 requires this Court to balance the need to hold the juvenile accountable for the damage to the Berrien household, with his rehabilitative needs in conjunction with the “development of personal qualities that will enable him to become a responsible and productive member of the community.” B.D. G., 959 A.2d at 370. It is agreed that the juvenile hosted the house party, but it is not alleged that he caused all of the damage. In fact, it can be stated with some conviction that he was not responsible for the widespread soiling of items discovered by Ms. Berrien. The Commonwealth’s theory remains that the damage could not have occurred without the juvenile’s decision to allow others to attend the party. See Dublinski, wherein it was stated in dictum that, “[sjhould the court find...that appellant was responsible for providing the other juveniles with access to the victims’ property, application of a ‘but-for’ analysis might place the entire responsibility for the damages upon appellant.” Dublinski, 695 A.2d at 830. See also Gerulis, 616 A.2d at 697 ([Djamages which occur as a direct result of the crime are those which should not have occurred but for the defendant’s criminal conduct.). However, Dublinski does require consideration of the “proportion” of the damage caused by the juvenile. In light of the circumstances, which does not include anyone else being held responsible for the damage, proportioning responsibility becomes a difficult task.

Based on the Dublinski interpretation of the “but-for” test, the only remaining question is whether the damage to the property “substantially decreased” its value. See 18 Pa.C.S. § 1106(a). The measure of damage used by the Commonwealth for all of the bedding, towels, and furniture was replacement. However, caselaw suggests that the measure of damages in civil cases is either its reasonable value or replacement. See 1 Summ. Pa. Jur. 2d Torts § 9:77 (2d ed.)(“[T]he measure of damages for the total loss or destruction of personal property is its reasonable value at the time of the loss considering its age, condition at that time and any post salvage value”); Cf. Lynch Bridges & Company, 678 A.2d 414, 415 (Pa. Super. 1996)(“ [Replacement cost as the measure of damages has been a long-established exception to the general rule as to market value of personal belongings.). See also Gorham v. Springettsburg Township, 41 Pa. D+C 4th 50 * 2 (1998).

Here, Ms. Berrien did suffer a loss, and the juvenile’s conduct is inexcusable, but she is not entitled to refurnish her home. It is unclear if any of the items have been repaired or replaced. No testimony was presented as to the reasonable value the damaged items at the time of the loss or if any of them have been sold or even donated. In Pikunse v. Kopehinski, 631 A.2d 1049 (Pa. Super. 1993) a landlord disposed of a tenant’s possessions. It was explained that “mere uncertainty as to the amount of damages will not bar recovery where it is clear that damages were the certain result of the defendant’s conduct. Id. at 1051. In such cases, it was explained that “the fact-finder may make a just and reasonable estimate of the damage based on relevant data, and in such circumstances may act on probable and inferential, as well as upon direct and positive proof.” Id. at 1052 quoting Delahantz v. First Pennsylvania Bank, 464 A.2d 1243, 1257-1258 (Pa. Super. 1983).

Based upon a review of all the damages submitted and this Court’s “flexibility to determine all the direct and indirect damages caused by the juvenile,” an award of restitution is warranted. The amount of restitution awarded, while substantial, especially for someone without assets, can be paid by the juvenile in installments beyond his twenty-first birthday. B.D.G., 959 A.2d at 369-370; Dublinski, 695 A.2d at 830-831. A lump sum will not be required, and the installment plan will make sure that the juvenile understands the “[outrageousness] of his conduct, be deterred from repeating this conduct, and be encouraged to live in a responsible way.” In the Interest of M.W., 725 A.2d at 732. Furthermore, this “type of payment will best serve the needs of the victim and capabilities of the [juvenile].” Dublinski, 695 A.2d at 829.

For all the foregoing reasons, the juvenile is Ordered to pay restitution in the sum of $15,813.74.13

ORDER

AND NOW, this 11th day of May, 2015, after restitution hearings held in this matter, and consideration of the memorandum of law of counsel;

IT IS HEREBY ORDERED that the juvenile shall pay restitution in the amount of $15,813.74;

IT IS FURTHER ORDERED that the juvenile shall pay said restitution in installments with the payment of $2,000.00 by the end of the year 2015, and the sum of $3,500 per year until the balance is paid;

IT IS FURTHER ORDERED that the juvenile shall be held responsible for any sum not paid by his twenty-first birthday in accordance with 42 Pa.C.S. § 9728(a).

      . 18 Pa.C.S. § 3304(a)(1).

      . 18 Pa.C.S. §6310.1(1).

      . 18 Pa.C.S. § 6308(a).

      . Juvenile’s Memorandum of Law In Support of Juvenile’s Position on Restitution (hereinafter W.M. Memorandum), p. 7.

      . See Commonwealth Exhibits 5b-5q; 5s-5t.

      . See Commonwealth Exhibit 3.

      . See Commonwealth Exhibit 1.

        . 42 Pa.C.S. § 6301 et. seq.

      . The juvenile appealed the order of restitution in M. W, and the Supreme Court did not address the paltry amount of restitution ordered by the juvenile court.

      . W.M. Memorandum, p. 6.

      . 1 Pa.C.S. § 1932(a).

      . “In many instances, it will be necessary for a defendant to make substantial sacrifices in order to make restitution to the victim of his crime..,[W]here sacrifice is necessary the [person] may learn to consider more carefully the consequences of his or her acts and thereby strengthen the offender’s sense of responsibility.” Commonwealth v. Wood, 300 Pa. Super. 463,446 A.2d 948, 950 (1982).

      . This figure is based on the following:
      1. Structural Damages (See B.D.G., 959 A.2d at 371) $6,046.31
      2. House Cleaning $ 600.00
      3. BR Painting $ 550.00
      4. Sofa (3) and love seat (2) and Sectional Cleaning $2,016.12
      5. White Sofa and love seat replacement $3,000.00
      6. Oriental Rug $2,402.33
      7. Ashmont Bistro Table $ 199.98
      8. Miscellaneous Items (partial damage) $1,000.00
      a. Towels and Bedding
      b. Swivel Stools
      c. Yamaha PSR-650 Arranger
      d. Frame by Rego


author: GREEN, J.,

text:
    Pusey v. Allstate Insurance Co.

      C.P. of Delaware County,
    No. 2013-001936

      Craig A. Altman, for appellant.

      M. Gerard Bradley, for appellee.
    May 21, 2015
   GREEN, J.,

Appellant, Joanne Pusey, natural guardian of the minor, Brian Pusey, filed the instant appeal following a March 2, 2015 Order denying Appellant’s Motion for Reconsideration. Appellant’s Concise Statement of Errors Complained of on Appeal raises the following issue for appellate review:

The Court abused it’s [sic] discretion and/or committed reversible error by Order dated February 11,2015, when it molded plaintiff’s verdict by applying plaintiff’s comparative negligence before the credit for the third party recovery as opposed to applying plaintiff’s comparative negligence after the credit for the third party recovery.

This action arises from an accident that occurred on December 24, 2011 at or near the intersection of Union Avenue and Baltimore Pike, in Upper Darby Township, Delaware County, Pennsylvania. (N.T. 12/08/14, p. 26). At that time Brian Pusey, a minor, was attempting to cross Baltimore Pike on his bicycle when a vehicle being driven by Monique Rollerson collided with Brian Pusey’s bicycle. (N.T. 12/08/14, p. 26). Prior to trial, Ms. Rollerson’s insurance carrier tendered the policy limits of $25,000,000 to Appellant. Appellant initiated this action against Allstate Insurance Company through an underinsured motorist coverage provision of her motor vehicle insurance policy. (N.T. 12/10/14, p. 123).

Trial commenced on December 8, 2014 and the jury returned a verdict on December 10, 2014. The jury awarded Appellant $10,000.00 for pain and suffering, $1,400.00 for embarrassment and humiliation, $26,200.00 for loss of enjoyment of life, and awarded a stipulated medical lien amount of $21,000.00 for a total award of $58,600.00. (12/10/14 Verdict Slip and N.T. 12/10/14, p. 160). The jury also attributed forty one percent (41%) of the negligence that was a factual case of any harm to Brian Pusey himself. (12/10/14 Verdict Slip and N.T. 12/10/14, p. 160).

Appellee filed a Motion to Mold the verdict on December 18, 2015. Therein, Appellee argued that the jury’s award should be reduced by the percentage of Brian Pusey’s own negligence, resulting in a damage award of $34,574.00. Appellee reasoned that Allstate would then receive a credit for the policy limits of the torfeasor’s $25,000.00 liability limits that were previously received by the Appellant. Appellee referenced the relevant portions of the Allstate policy at issue relating to underinsured motorist benefits:

We are not obligated to make payment for bodily injury under this coverage which arises out of the use of an underinsured auto until after the limits of liability for all motor vehicle liability protection in effect and applicable at the time of the accident have been exhausted by payment of judgment or settlements.
Subject to the above limits of liability, damages but not limits payable will be reduced by:
a) All amounts paid by the owner or operator of the underinsured auto or anyone else responsible. This includes all sums paid under the bodily injury liability coverage of this or any other policy.

The policy further provides that damages in an underinsured motorist claim are that which an insured person is “legally entitled to recover from the operator of an underinsured auto.”

(12/18/15 Motion to Mold Verdict)

Neither party disputes that Appellee should receive a credit for the $25,000.00 liability limits that were previously tendered. (N.T. 01/22/15, p. 8). Appellant contends that the deduction for comparative negligence should have been applied after the credit for the third party recovery. Following oral argument in January 22, 2015, this Court entered an Order on February 11, 2015, and found as follows:

1. On December 10,2014, the jury returned a verdict in the total amount of $58,600.00;
2. The jury attributed forty one percent (41%) of the negligence that was a factual case of any harm to the plaintiff to Brian Pusey himself;
3. Plaintiff’s total award must be reduced by forty one percent or $24,026.00;
4. Prior to trial, Plaintiff received $25,000.00 from a third party and/or third party insurance carrier for damages related to the accident at issue herein;
5. Plaintiff’s total award must therefore be reduced by an additional $25,000.00.

The jury verdict of December 10, 2014, was then molded and a verdict in favor of Appellant, Joanne Pusey, natural guardian of the minor, Brian Pusey, and against Appellee, Allstate Insurance Company, in the total amount of $9,574.00 was entered of record.

The interpretation of an insurance contract is a matter of law and is generally performed by a court. Kropa v. Gateway Ford, 974 A.2d 502 (Pa. Super. 2009). The goal of insurance contract interpretation is “to ascertain the intent of the parties as manifested by the language of the written instrument.” Madison Const. Co. v. Harleysville Mut. Ins. Co., 557 Pa. 595, 606, 735 A.2d 100, 106 (Pa. 1999). “When analyzing an insurance policy, a court must construe words of common usage in their natural, plain, and ordinary sense.” Continental Cas. Co. v. Pro Machine, 916 A.2d 1111, 1118 (Pa. Super. 2007) (citing Mitsock v. Erie Ins. Exchange, 909 A.2d 828, 831 (Pa, Super. 2006)). If “the language of the [insurance] contract is clear and unambiguous, a court is required to give effect to that language.” Id. at 831 (quoting Madison Const. Co., supra). A court must not “distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity.” Mitsock, supra at 831.

The purpose of underinsured motorist coverage is to protect the insured (and his additional insureds) from the risk that a negligent driver of another vehicle will cause injury to the insured (or the additional insureds) and will have inadequate coverage to compensate for the injuries caused by [the negligent driver], Paylor v. Hartford Ins. Co., 640 A.2d 1234, 1235-1236 (1994) (quoting Wolgemuth v. Harleysville Mut. Ins. Co., 535 A.2d 1145 (Pa. Super. 1988). While it is a fundamental rule of damages that a person injured by the tortious act of another is entitled to compensation, a court will not allow that person more than one satisfaction in damages. An injured party cannot recover twice for the same injury. Rossi v. State Farm Auto. Ins. Co., 465 A.2d 8, 10 (Pa. Super. 1983). This rule applies equally to situations where the injured party legally has another claim for the same loss; the purpose of this rule of damages in any context is to avoid unjust enrichment. Id.; D Adamo v. Erie Ins. Exch., 4 A.3d 1090, 1096 (Pa. Super. 2010).

Appellant’s proposed damages calculation formula provides an unjust enrichment to Appellant. The proposed formula fails to acknowledge the true damages Appellant was legally entitled to recover by delaying the application of comparative negligence. Under the terms of the instant insurance policy and applicable case law, damages in an underinsured motorist claim are that which Appellant is legally entitled to recover from the operator of an underinsured auto. As the jury attributed forty one percent (41%) of the negligence to Brian Pusey himself, the total damage award Appellant is entitled to recover is $34,574.00, and not $58,600.00. As plaintiffs cannot recover for the portion of an award for which they were negligent, $34,574.00 is the amount to which the underinsured credit is applied. $34,574.00 is the damage award Appellant is legally entitled to recover. Therefore, applying the $25,000.00 credit yields an appropriate final award of $9,574.00 and compensates Appellant for the injuries caused by the negligent driver consistent with the terms of her insurance policy.

For the aforementioned reasons, the trial court respectfully requests that its decision be AFFIRMED.