author: ST. JOHN, J,

text:
    Taylor-Winfield Corp. v. WS Liquidation Inc.

      James L. Blomstrom, for Taylor-Winfield Corp.

      Albert N. Peterlin, Anthony J. Basinski and Richard F. Moroco, for WS Liquidation Inc. and Winner Steel LLC.
    March 31, 2008
   ST. JOHN, J,

— Winner Steel Inc. purchased a custom built welding unit for its newly constructed galvanized steel coil production line from the Taylor-Winfield Corporation. Unfortunately, the welding unit did not perform up to expectations and Taylor-Winfield’s efforts to bring it into compliance were unsuccessful. Winner Steel submitted a claim to arbitration and was awarded $790,000, plus 6 percent interest and costs, and was permitted to keep the welding unit. Winner Steel, in its petition, is now attempting to confirm the award, while Taylor-Winfield seeks to vacate or modify the award in its separate petition.

Petitions challenging arbitration awards must be filed within 30 days. The sole issue is what event triggers this 30-day period. Does it commence the day after the last arbitrator signed the arbitration award or when the award is received from the arbitrators by the American Arbitration Association (AAA), or delivered to the parties?

If the 30-day period is triggered by the signature of the last arbitrator, then Taylor-Winfield’s petition is untimely. However, its petition would be timely if the appeal period commences after the association received the arbitrators’ decision. This court holds that the 30 days begins to run the day after the last arbitrator signed the board’s award. Accordingly, Taylor-Winfield’s petition is untimely and will be dismissed, and Winner Steel’s petition to confirm the award will be granted.

I. BACKGROUND

Taylor-Winfield designed and manufactured a custom welding system for a new galvanized steel production line at Winner Steel Inc. The parties executed a written contract memorializing this transaction. Disputes arising out of the contract were governed by common-law arbitration through the AAA. The welding unit failed to perform as projected, so Winner Steel submitted its claim for arbitration seeking a refund of the purchase price and other incidental damages.

It is uncontroverted that the final award by the arbitration panel in favor of Winner Steel Inc. was signed by the three arbitrators on consecutive days, October 3, 4, and 5,2007. The AAA received and electronically transmitted the final award from the arbitrators to counsel for all parties on October 9, 2007. Taylor-Winfield filed its petition to vacate or modify the arbitration award on November 7, 2007.

II. WHAT TRIGGERS THE COMMENCEMENT

OF THE 30-DAY PERIOD TO FILE A PETITION CHALLENGING A COMMON-LAW ARBITRATION AWARD?

Pennsylvania law imposes a 30-day time limit for filing petitions to vacate arbitration awards from both statutory and common-law arbitrations. Moscatiello v. Hilliard, 939 A.2d 325, 327 (Pa. 2007). Compare 42 Pa.C.S. §7314(b) (statutory arbitration) with 42 Pa.C.S. §7342(b) (common-law arbitration). A challenge to a statutory arbitration award must be filed “within 30 days after delivery of a copy of the award to the [petitioner].” Id. at section 7314(b). (emphasis added) The statutory language for challenging a common-law arbitration award (which was enacted two years after section 7314(b)) differs in that it does not expressly state a time frame for challenging an arbitration award. See 42 Pa.C.S. §7342(b).

Instead, section 7342(b) simply provides that upon “application of a party made more than 30 days after an award is made by an arbitrator ... the court shall enter an order confirming the award . . .(emphasis added) This statute is silent about the time limit for filing a petition challenging a common-law arbitration award.

The Superior Court addressed the issue of the 30-day period for challenging a common-law arbitration award in the case of Beriker v. Permagrain Products Inc., 347 Pa. Super. 102, 500 A.2d 178 (1985). A common-law arbitration award was entered in favor of Beriker, who filed a petition to confirm the award about 80 days later. Permagrain took no action to modify the award until it filed an answer to Beriker’s petition to confirm. The Beriker court held that Permagrain waived any objections to the arbitration award because it failed to file its own petition challenging the award within 30 days pursuant to section 7342(b).

“The statute clearly provides, however, that any issues a party wishes to raise must be raised within 30 days of the date of the award, since after that time it is mandatory for the trial court to confirm an award upon application of either party. This is in keeping with the 30-day time period for appeals established by the legislature in other types of cases.” Id. at 105, 500 A.2d at 179. (emphasis added)

While this statement by the Superior Court is clearly persuasive authority for the proposition that the date of the common-law arbitration award triggers the 30-day appeal period, it is arguably not binding precedent. The Beriker court holding was that all issues raised in the answer to the petition to confirm the award (which was filed more than 30 days after the award) were waived since they were not preserved by a separately filed and timely challenge to the award. The court was not asked to determine how to calculate the 30-day appeal period.

Since Beriker, Superior Court panels have repeated Beriker’s statement that any challenge to a common-law arbitration award must be made to the court of common pleas, by filing a petition to vacate or modify the award “within 30 days of the date of the award.” (emphasis added) US. Claims Inc. v. Dougherty, 914 A.2d 874, 877 (Pa. Super. 2006); Sage v. Greenspan, 765 A.2d 1139, 1142 (Pa. Super. 2000); Lowther v. Roxborough Memorial Hospital, 738 A.2d 480, 485 (Pa. Super. 1999); Hall v. Nationwide Mutual Insurance Company, 427 Pa. Super. 449, 629 A.2d 954, 957 (1993), appeal denied, 537 Pa. 623, 641 A.2d 588 (1993); Beriker v. Permagrain Products Inc., 347 Pa. Super. 102, 105, 500 A.2d 178, 179 (1985); and Elkins & Co. v. Suplee, 371 Pa. Super. 570, 578, 538 A.2d 883, 887 (1988).

Winner Steel argues, therefore, that the law is well-settled regarding what event triggers the 30-day time frame in section 7342(b). Indeed, each of these opinions state that a challenge to a common-law arbitration award must be filed “within 30 days of the date of the award.” The continuous reference to this proposition over 23 years has at least elevated this principle to a legal standard binding upon lower courts. As a result, this court adopts Beriker as binding and/or persuasive authority and as a reasonable interpretation of the plain meaning of section 7342(b); i.e., that the “date” of the award is the triggering event.

While Taylor-Winfield accepts that it had only a 30-day window to file its petition challenging the award, it argues that the 30-day time frame should be calculated from the date of delivery of the award, as in statutory arbitration challenges. Taylor-Winfield urges this court to use October 9, 2007, the date on which the American Arbitration Association notified the parties of the arbitration award, as the triggering date for the 30 days to run. Under this argument, Taylor-Winfield would have filed its petition to vacate or modify an arbitration award on the 29th day. Taylor-Winfield contends that this proposition is supported by Moscatiello v. Hilliard, 939 A.2d 325 (Pa. 2007), irrespective of Beriker.

Taylor-Winfield’s reliance on the Moscatiello case is misplaced, however, because the issue in that case was whether the federal time frame should be applied or Pennsylvania’s. Id. at 327. Moscatiello involved a choice of law issue in which the parties agreed in their contract that the rules of arbitration would apply in accordance with the National Association of Security Dealers, which applied the Federal Arbitration Act. The Federal Arbitration Act provided for a 90-day period to challenge an arbitration award, but the parties’ contract stipulated that Pennsylvania law would govern. Id. at 326. The Pennsylvania Supreme Court held that the 30-day time limit under Pennsylvania law in section 7342(b) does not undermine the federal policy of providing a time limit during which a party may challenge an arbitration award. Id. at 329. Accordingly, the court held that Pennsylvania’s time limit applied. Id. at 330.

The majority noted, “[rjegardless of whether an arbitration agreement provides for arbitration pursuant to the [statutory arbitration] or common law, application of a 30-day time limit for challenging arbitration awards is appropriate.” Id. (citation omitted) The Moscatiello court did not discuss, however, whether the respective triggering events were identical for calculating the 30-day time limit for challenging statutory and common-law arbitration awards. The triggering event was simply a non-issue because the petition was filed about 75 days after the arbitration award. Id. at 327. Notably, the Supreme Court did not even refer to Beriker and its progeny.

Accordingly, the dates that trigger the 30-day periods under section 7314(b) and section 7342(b) were irrelevant to the ultimate consideration of the Moscatiello case, since the date of the award and the date of delivery would both have occurred well over a month before the petition to vacate was ultimately filed by the chailenging party. The Supreme Court’s Moscatiello decision is not on point with the issue before the court in the instant case.

Taylor-Winfield also argues that since 42 Pa.C.S. §7342(b) is silent as to the day when the 30-day period begins to run, this court could construe it in pari materia with the 42 Pa.C.S. §7314(b) standard for statutoiy arbitration. While it makes sense that the 30-day periods be calculated the same for both statutory and common-law arbitration challenges, it would require this court to ignore the plain meaning of section 7342(b) and the long-stated legal standard repeated by the Superior Court since 1985.

Moreover, section 7342 was enacted by the legislature two years after section 7314, and several provisions governing statutory arbitration were incorporated also into common-law arbitrations. Curiously absent from the list of statutory arbitration sections incorporated into section 7342, is section 7314 regarding the 30-day appeal period for statutory arbitration. If the General Assembly had intended to have the identical triggering event for the 30-day period to challenge both statutory and common-law arbitrations, it would have enacted similar language in section 7342(b), or simply incorporated section 7314 by reference. Instead the legislature chose to make one time frame start from delivery of the award, and the other start after the award was made. This court cannot ignore this glaring difference and impose its own interpretation, even if it makes more sense.

Taylor-Winfield further attempts to establish the same start dates for both statutory and common-law arbitration challenges by arguing that a common-law arbitration award is not “made” under section 7314(b) until it is delivered to the parties. This argument is specious at best. Winner Steel argues instead that the award is “made” on the date it is signed by the controlling authority. In this case, Winner Steel maintains that the award was “made” when the last arbitrator signed it on October 5,2007, and that Taylor-Winfield filed its petition untimely on the 33 rd day.

The process of making an arbitration award consists of the arbitrators taking testimony and evidence, deliberating, deciding issues, drafting the award, and signing the final award. The process of “making” the award is complete when it is signed by the last arbitrator. Then it is a final award. The remaining functions of depositing the final award with the AAA and delivery of the award to the parties are ministerial acts, not deliberative. Winner Steel’s position is consistent with Beriker and its progeny.

Other statutes and rules of court contain various time constraints for filing complaints, pleadings and appeals, and are traps for the unwary if not read carefully. For example, appeals from decisions made by a government unit must be filed “within 30 days after the entry of the order from which the appeal is taken . . . .” 42 Pa.C.S. §5571(b) (Purdons 2004). In addition, the “date of service of an order of a government unit, which shall be the date of mailing if service is by mail, shall be deemed to be the date of “entry ofthe order____” 42 Pa.C.S. §5572 (Purdons Supp. 2007). (emphasis added)

In contrast, the legislature mandated that certain causes of action filed in courts of common pleas must be submitted to a panel of three attorneys for compulsory arbitration. 42 Pa.C.S. §7361 (Purdons 2007). An aggrieved party was also granted the right to appeal from the arbitration award for a trial de novo with the court, but the authority to establish procedures and time limitations was delegated to the rule-making authority of the Pennsylvania Supreme Court. Id. section 7361(d). The Supreme Court has in turn adopted rules governing compulsory arbitration that are instructive here by analogy. SeePa.RX.P. 1301 through 1313.

Rule 1306 directs the arbitration board to “make an award promptly upon termination of the hearing” and to sign the award, (emphasis added) “The award shall be filed with the prothonotary immediately after it is signed.” Id. Accordingly, the ministerial act of filing the “award” has nothing to do with the “making” of the award which is complete upon execution by the arbitrators. Aggrieved parties can take an appeal from the award by filing a notice of appeal with the prothonotary “not later than 30 days after the day on which the prothonotary makes the notation on the docket that notice of entry of the arbitration award has been” mailed to each party. Pa.R.C.P. 1308(a)(1) and 1307(a)(2), (3).

Obviously, the triggering event for calculating the running of the 30-day appeal period from compulsory arbitration awards and statutory arbitration awards is very specific, yet very different. Similarly, the time frame for challenging decisions by government units is likewise particular under 42 Pa.C.S. §5572. This court must adhere to the plain meaning of the words in 42 Pa.C.S. §7342(b) and the Superior Court’s legal standard, absent an express formula to the contrary in the statute itself for calculating the 30-day appeal period from a common-law arbitration award.

Taylor-Winfield failed to adhere to the deadline as stated by the Superior Court over the past 23 years. The triggering event causing the 30-day period to run here is the date when the award was signed by the last arbitrator, which was October 5, 2007.

Accordingly, October 5,2007 is the date of the arbitration award. Taylor-Winfield had 30 days after that date to file a petition to vacate or modify the arbitration award. However, since its petition was not filed until November 7, 2007, on the 32nd day, it must be dismissed as untimely. Additionally, under the clear and unambiguous language of section 7342(b), this court must enter an order confirming the arbitration award. Accordingly, WS Liquidation’s petition to confirm an arbitration award will be granted, and Taylor-Winfield’s petition will be dismissed.

Hence this order:

ORDER

And now, March 31,2008, for the reasons set forth in the foregoing opinion, petitioner-respondent TaylorWinfield Corporation’s petition to vacate or modify an arbitration award is hereby dismissed as untimely filed, and respondent-petitioner WS Liquidation Inc.’s petition to confirm an arbitration award is hereby granted.

The arbitrator’s final award of October 5,2007, at case no.55 181Y0015805 of the American Arbitration Association is hereby confirmed as follows:

A money judgment based on the above-referenced arbitration award is hereby entered at 2007-3977 in favor of WS Liquidation Inc., formerly Winner Steel Inc., and against the Taylor-Winfield Corporation as follows:

$790,000 principal award

$126,400 6 percent interest per annum on award from February 22, 2005 through October 22, 2007.

$86, 745.52 Winner Steel’s filing and administrative fees and compensation of the arbitrators.

$1,003,145.52 Total judgment as of October 22, 2007 with interest to accrue thereafter at a rate of $129,863 per day up to and including the date of payment.

      . Winner Steel Inc. is now known as WS Liquidation Inc. and it filed its petition to confirm arbitration award at 2007-3977 on November 19, 2007. Case law prohibits the use of counterclaims or new matters to challenge arbitration awards. See e.g., U.S. Claims Inc. v. Dougherty, 914 A.2d 874 (Pa. Super. 2006). Thus, Taylor-Winfield filed its separate petition challenging the award on November 7,2007 at 2007-3847. These cases were later consolidated with the consent of the parties.

      . The rationale behind these decisions is that since an arbitrator’s award cannot be confirmed until 30 days have expired after the arbitrator’s award, then the legislature was imposing, sub silentio, a requirement that any challenge to a common-law arbitration award must be filed before the expiration of the time period for confirming the award. Obviously, this rule is designed to achieve finality. Otherwise, an award could be challenged at any time.

      . The Rules of Civil Procedure require that time is computed to exclude the day of the triggering event and include the last day. If the last day falls on a weekend or legal holiday, the filing deadline is extended to the next business day. Pa.R.C.P. 106(a), (b).

      . Such an interpretation would support Taylor-Winfield’s argument that its challenge was timely, since it filed its petition within 30 days of the delivery of the copy of the award, and 42 Pa.C.S. §7314(b) has the explicit standard of “within 30 days after delivery of a copy of the award to the [petitioner]” for challenging an award.

      . See also, Pa.R.C.P. 227.1 for calculating the time for filing post-trial motions, and Pa.R.A.P. 903(a).


source: Caselaw Access Project

author: RUEST, J,

license: Public Domain

text:
    Washington Mutual Bank v. Moore

      Christopher A. DeNardo, for plaintiff.

      Elizabeth Dupuis, for defendants.
    April 7, 2008
   RUEST, J,

— Before the court is defendant’s petition to set aside sheriff’s sale of real estate, filed on February 19,2008. Ahearing was held on March 5, 2008. After said hearing, and upon consideration of arguments by counsel and relevant case law, the court determines defendant’s petition is granted. The sheriff’s sale of the house and lot at 1126 Schencks Grove Road, Howard, Pennsylvania, shall be set aside.

FACTUAL BACKGROUND

Petitioners Robert Moore and Carol Moore purchased a residence at 1126 Schencks Grove Road, Howard, Pennsylvania, 16841 on or about May 26, 1984 for the purchase price of $35,000. This amount was secured by a mortgage with United Federal Savings Bank dated June 1, 1984. The mortgage was subsequently assigned to State Street Bank and Trust Co., and finally to Washington Mutual Bank, the respondent in the case at bar. Petitioners presently owe $9,944.91, which was entered as a default judgment against petitioners on July 30,2007. Also on July 30,2007, respondent commenced execution proceedings to enforce the judgment and a writ of execution was directed to the sheriff of Centre County to levy upon and sell petitioners’ real estate. A sheriff’s sale of petitioners’ property was scheduled for November 8, 2007.

Prior to the sheriff’s sale, petitioners entered into discussions with respondent to negotiate a payment arrangement to cure the default. The sheriff’s sale was continued. No agreement was reached between petitioners and respondent, and the sheriff’s sale was rescheduled for February 14, 2008. No notice was given to petitioners of this new sale date. A sheriff’s sale of petitioners’ property was held on February 14, 2008, at which time the property was sold to Andrew Garban, Gary Byers, Scott Schamrock, and Thomas Rutherford, doing business under the name “Classic Four Group,” for the sum of $18,000. As of the date of the hearing, the sheriff of Centre County had not delivered a sheriff’s deed to the Classic Four Group.

DISCUSSION

Petitioners raise two grounds for asking that the sheriff’s sale of their property be set aside: first, that they reasonably believed that they would be given actual notice of a rescheduled sheriff’s sale and no such notice was provided to them; and second, that the property was sold for an inadequate price, substantially below its fair market value.

I. Actual Notice of the Rescheduled Sheriff’s Sale Was Not Given

In order for notice of a sheriff’s sale of real property to be valid, it must be reasonably calculated to inform interested parties of the pending action, and the information necessary to provide an opportunity to present obj ections. M & T Mortgage Corporation v. Keesler, 826 A.2d 877 (Pa. Super. 2003). Notice of sheriff’s sale of property is defective if the sale is continued indefinitely, no date certain is set, and no new notice of rescheduled sheriff’s sale was given to the property owner. First Eastern Bank N.A. v. Campstead Inc., 432 Pa. Super. 241, 637 A.2d 1364 (1994). Pursuant to Pa.R.C.P. 3129.2, the sheriff is required to post the subject property with the handbill and serve defendants with the notice of sale at least 30 days prior to the sale.

In the case at bar, a date certain was set for the initial sheriff’s sale, November 8,2007, and the petitioners were served on August 30, 2007, with the notice of sale and handbill. Pa.R.C.P. 3129.3 allows a plaintiff to continue the sale, no more than twice, to a date within 130 days of the original sale date without providing new notice as required under Pa.R.C.P. 3129.2. This sale was postponed for 99 days until February 14,2008. The court will treat this postponement as indefinite, however, because no date certain was set at the time of postponement and no subsequent notice was given to petitioners of the February 14, 2008 sheriff’s sale. As of that date, petitioners believed that they were still in negotiations with respondent regarding resolving this matter. The court determines the respondent was required to notify the petitioners of the pending sheriff’s sale 30 days prior to the February 14, 2008 sale.

II. The Property Was Sold for an Inadequate Price

The price at which the property is sold at the execution sale may constitute proper cause for setting aside the sale. S & TBank by Dalessio v. Dalessio, 429 Pa. Super. 282, 288, 632 A.2d 566, 569 (1993). Mere inadequacy of the sale price of real estate is not sufficient to set aside a sheriff’s sale. Fidelity Bank v. Pierson, 437 Pa. 541, 544, 264 A.2d 682, 684 (1970); Continental Bank v. Frank, 343 Pa. Super. 477, 485, 495 A.2d 565, 568 (1985). “[GJross inadequacy” of price is the basis for setting aside such a sale. Frank, supra at 485, 495 A.2d at 568.

The petitioners had an appraisal of their property prepared by Roland D. Fisher, and the report was accepted by the court as petitioner’s exhibit 1. The appraisal indicates an appraised value of $89,000 by the sales comparison approach and of $81,250 by the income approach. The property’s assessed value for tax purposes is $19,515. The property was sold at sheriff’s sale for $18,000, which is 22 percent of the fair market value of the property when calculated with the more conservative income approach. Even considering the nature of an execution sale, with the concomitant likelihood of there being no other prospective bidders and no immediate other offers to secure a better price, this is an extremely-low value for a property. Therefore, the court determines the sheriff’s sale price of $18,000 to be grossly inadequate.

Accordingly, the following is entered:

ORDER

And now, April 7,2008, for the reasons set forth above, petitioners’ petition to set aside sheriff’s sale of real estate is granted.


author: KLEINFELTER, J,

text:
    Medina v. Milton S. Hershey Medical Center

      Paul D. Brandes and Theresa L. Giannone, for plaintiffs.

      Jonathan B. Stepanian and Erin K. Dragann, for defendants.
    February 6, 2008
   KLEINFELTER, J,

— Plaintiffs commenced the instant medical professional liability action by filing a complaint on August 17,2007. Defendants filed preliminary objections on November 5,2007, which are now before the court for disposition.

The complaint alleges that Joseph J. Medina arrived at the Milton S. Hershey Medical Center (HMC) Emergency Department on August 24, 2005, complaining of “right-sided chest pain.” (Compl. §13.) He was initially seen by E.R. physician Kimberly Sholfield M.D. who took a history and ordered various tests. On August 25, Dr. Lawrence Kass M.D. assumed the care of Mr. Medina. Dr. Kass diagnosed Mr. Medina with musculoskeletal chest pain, prescribed Vicodin and discharged Mr. Medina to home.

On August 25, 2005, Mr. Medina returned to FIMC via ambulance “due to fever, fatigue, cough with brown sputum and a syncopal episode.” (Compl. §34.) In the E.R., Mr. Medina was “noted to be hypoxic, hypotensive and required intubation and mechanical ventilation.” (Compl. §35.)

Mr. Medina remained at HMC until December 15, 2005. While a patient, he was diagnosed with, among other things: “pneumococcal sepsis, pleural effusion, acute respiratory distress syndrome, hypotension, hypoxia, vascular compromise, intracranial ischemia, seizures and was status epilepticus for a time, blindness in his right eye, depression and anxiety.” (Compl. §37.)

Mr. Medina underwent, among other things: “intubation and mechanical ventilation; exploratory laparatomy; chest tube placement; tracheostomy which was later removed; amputation of his left hand, right fingers, and bilateral below the knee amputation; PEG tube placement; cardioversion; frequent suctioning; and frequent chest x-rays and other procedures.” (Compl. §38.) The complaint charges that as a direct and proximate result of defendants’ negligence, Mr. Medina suffered, “injuries to and about his body, extremities, lungs, internal organs, nerves, and nervous system, including multi-organ failure, vascular compromise, cardiac compromise, respiratory compromise, pleural effusions, infection, sepsis, seizures, vision loss, neurologic and cognitive injuries, necrosis, gangrene and amputations.” (Compl. §39.)

Count I asserts a negligence claim against Dr. Kass. Count II asserts a corporate negligence claim against HMC. Count III is captioned “vicarious liability” and seeks to hold HMC liable “for the acts and omission of their personnel as described herein, inclusive of the health care providers listed in defendants’ medical records.” Count V is a loss of consortium claim against all defendants asserted by Marquette Hunt (Mr. Medina’s wife). Count VI is a claim for negligent infliction of emotional distress asserted by Marquette Hunt against all defendants. Count VII is a loss of consortium claim asserted by Mr. Medina against all defendants. The complaint seeks compensation for lost wages, future medical expense, pain and suffering and loss of life’s pleasures.

LEGAL DISCUSSION

Defendants’ preliminary objections fall into two categories. The first of these is asserted under Pa.R.C.P. 1028(a) (3), insufficient specificity in a pleading. The second category of obj ection raises the legal insufficiency of a pleading (demurrer) under Pa.R.C.P. 1028(a)(4).

Factual Sufficiency Objections

Defendants remind us that Pennsylvania is a fact-pleading jurisdiction and that Pa.R.C.P. 1019(a) requires that “the material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” The pleadings are thus required to aver facts essential to support each claim so that an opposing party might be given an opportunity to answer and to defend.

At the core of defendants’ objection to factual specificity is the holding in Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). In Connor, plaintiff sued for complications arising from a perforated colon during a barium enema. The original complaint alleged negligence in causing the perforation. At trial, however, Connor sought to amend her complaint by adding a claim of negligence for failure to promptly diagnose and treat the tear. The trial judge disallowed the amendment since it added a new theoiy of negligence and since the statute of limitations had expired. Superior Court affirmed.

In reversing, our Supreme Court looked to an allegation in the original complaint stating that defendant was negligent “in otherwise failing to use due care and caution under the circumstances.” Id., 501 Pa. at 308, 461 A.2d at 602. This language, said the court, “merely amplifies” the original cause of action and, in a footnote added: “If appellee did not know how it ‘otherwise fail[ed] to use due care and caution under the circumstances,’ it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of appellants’ complaint.” Id. at 311 n.3, 461 A.2d at 603 n.3.

Since Connor, defendants have been understandably wary of any language in a complaint which might later sandbag them during the pleadings, during discovery, in obtaining expert opinions, or during the trial itself. This court has consistently granted preliminary objections to general averments of negligence. See e.g., Starr v. Myers, 109 Dauphin Rep. 147 (1988); Mau v. Roth, 114 Dauphin Rep. 297 (1994); Finney v. Milton S. Hershey Medical Center, 116 Dauphin Rep. 20 (1995); Morder v. Professional Aerials Inc., 123 Dauphin Rep. 50 (2006).

On the other hand, as the late Judge Dowling of this court explained many years ago, a plaintiff “should not be required to plead evidentiary matters;” “preliminary objections should not be used to secure details of which the objector has as much knowledge or more than his opponent;” and “the entire pleading must be scrutinized as a whole.” Mikula v. Harrisburg Polyclinic Hospital, 94 Dauphin Rep. 328, 330 (1972).

The latter principles have been followed in more recent appellate opinions. For example, in Yacoub v. Lehigh Valley Medical Associates P.C., 805 A.2d 579, 589 (Pa. Super. 2002) we read:

“[I]n determining whether a particular paragraph in a complaint has been stated with the necessary specificity, such paragraph must be read in context with all other allegations in that complaint. Only then can the court determine whether the defendant has been put upon adequate notice of the claim against which he must defend.” See also, Paz v. Commonwealth, Department of Corrections, 135 Pa. Commw. 162, 171, 580 A.2d 452, 456 (1990) (“A more specific pleading should not be required as to matters about which the objecting party has, or should have, as much or better knowledge than the pleader.”).

With these principles of pleading in mind, we turn to the specificity objections before us.

Count I (Negligence Against Dr. Kass)

In paragraph 45 of Count I (negligence against Dr. Kass) we find 39 subparagraphs (a-mm). Although there are 39 separate paragraphs, paragraph 45 may essentially be distilled into three claims of negligence. The first of these is a failure to diagnose Mr. Medina’s problem; the second is a failure to properly treat his condition; and the third is a failure to admit (rather than to discharge).

To illustrate, subparagraphs (a), (b), (c), (d) and (e) all allege a failure to order certain tests or a failure to diagnose or otherwise properly interpret the tests performed. Subparagraphs (f), (g), (k), (1), (m), (n), (o), and (p) allege a failure to timely treat Mr. Medina’s condition. Other subparagraphs of paragraph 45 state this same claim in a variety of ways. We find that all of the paragraphs alleging a failure to timely diagnose and treat Mr. Medina, when read together, pass the test of sufficient pleading.

On the other hand, there are a number of paragraphs that raise collateral issues, which must be stricken for their nebulosity.

We refer to the following:

“(u) Failing to timely, properly and/or adequately avail him/herself of available and pertinent medical writings, publications, information and diagnostic technology both prior to and during Mr. Medina’s admission to the hospital;

“(w) Failing to timely, properly and/or adequately avail himself of information, test results, studies, opinions, assessments, diagnoses and materials regarding Mr. Medina which were available at the hospital, as well as from other doctors, therapists and hospitals;

“(y) Failing to timely, properly and/or adequately maintain a continuity in care among the various participating and/or available healthcare providers;

“(gg) Failing to timely, properly and/or adequately supervise the care, practice or work of residents, students, assistants, and/or nurses;

“(hh) Failing to timely, properly and/or adequately make entries in the medical chart and/or comply with applicable rules, protocols, regulations, policies, procedures and/or by-laws with respect thereto;

“(ü) Failing to timely, properly and/or adequately promulgate, enforce, communicate and/or adhere to pertinent and applicable medical, hospital, accreditation, state and/or federal standards, rules, regulations, policies, procedures and/or protocols, the titles of which are not presently known to plaintiffs but which are believe to pertain to: continuity in care; recognizing, assessing, responding to, diagnosing, reporting and/or treating infection, sepsis, pleural effusion, upper respiratory infection and/or pneumonia; monitoring, recognizing, keeping appraised of, diagnosing, treating and/or reporting patient’s condition and the patterns and significance thereof; ordering performing, repeating, reading, interpreting, reacting to and/or reporting on vital signs, radiolic studies and/or CBC analysis; ordering performing, interpreting, responding to and reporting on tests, observations, studies, films and examinations to aid in the diagnosis and treatment of patients such as plaintiff; recognizing, assessing, responding to, diagnosing, reporting and/or treating a patient’s need for medication; ordering requesting, insuring and/or recommending administration of antibiotics to patients and in appropriate amounts; entering, reviewing, revising and/or carrying out orders for patients such as Mr. Medina; availability of information, test results, studies, opinions, assessments, diagnosis and materials regarding patients such as Mr. Medina which are available at the hospital, as well as from other doctors, healthcare workers and hospitals; responding to notification by other physicians, nurses and/or healthcare workers regarding a patient’s condition and/or distress and/or the signs and symptoms thereof; supervision of residents, students, assistants and/or practitioners; and timely, proper and adequate medical charting;

“(jj) Failing to timely, properly and/or adequately maintain and insure sufficient numbers of healthcare personnel to appropriately and timely monitor, tend to, assess and treat Mr. Medina;

“(kk) Failing to timely, properly and/or adequately educate and advise other health care personnel regarding the care, treatment and assessments of patients such as Mr. Medina;

“(11) Violating JCAHO and Hospital or corporate standards and pertinent governmental regulations with regard to patient care and medical documentation under the circumstances;

“(mm) Increasing the risk of harm to Mr. Medina as a result of defendant’s negligence and/or carelessness as set forth above.”

The averments in these paragraphs, which make reference to failures to consult unnamed medical journals or other professional materials, are hopelessly vague. Equally impossible to fathom — let alone answer — are the allegations of failure to train, supervise staff, or to promulgate or enforce unspecified rules or regulations. We will strike the offending paragraphs.

Count II (Negligence Against HMC)

This count begins by incorporating paragraphs 1-45 of the complaint. It necessarily follows that our rulings with regard to paragraph 45 will equally apply to the objections filed to Count II. As was the case with Count I, Count II contains a single paragraph (47) which is subdivided into 33 subparagraphs. These paragraphs, taken together, allege that HMC has failed to promulgate policies or procedures — none of which are specified; and failed to train and supervise the doctors and medical staff “within its walls.” Although these 33 paragraphs are spread over eight pages in the complaint — in a remarkable display of redundancy, it would be a hopeless task for any defendant to divine exactly what policy or training would have made a difference in the care and treatment of Mr. Medina.

Defendants have asked that we strike from paragraph 47 subparagraphs (a) through (d), (i) through (k), (m), (q) through (w), (aa) through (bb), (dd) through (ff), and we will do so.

Count III (Vicarious Liability Against HMC)

Paragraph 49 of the complaint is a general statement that HMC is vicariously liable “for the acts and omissions of their personnel as described herein inclusive of the health care providers included in defendants’ medical records.”

HMC objects to the lack of specificity in this paragraph and asserts that “plaintiffs should be required to specifically identify by either name or ‘appropriate description’ the precise individuals whose conduct they seek to place at issue.”

We find no validity to this objection. In the first place, HMC is in the best position to know the names of its agents or employees who were involved in providing care to Mr. Medina. See Paz, supra. Secondly, the class of persons for whom liability is asserted is limited to those who would have had involvement with Mr. Medina within the treatment period addressed under paragraph 45; i.e., the un-stricken subparagraphs of this paragraph.

DEFENDANTS’ DEMURRERS

Count VI (Negligent Infliction of Emotional Distress Against Dr. Kass; HMC)

Defendants object that the complaint fails to aver facts legally sufficient to support a claim of negligent infliction of emotional distress. To assert such a claim it is necessary to plead:

“(1) Plaintiff was located near the scene of the accident as contrasted with being a distance away from it;

“(2) The distress resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the event, as contrasted with learning of the event from others after its occurrence; and

“(3) Plaintiff and victim were closely related.” Sinn v. Burd, 486 Pa. 146, 174, 404 A.2d 672, 685 (1979).

Defendants argue that the complaint fails to state a claim because it fails to allege that Marquette Hunt was present during, and witnessed, the alleged negligent acts of the defendants. Our review of the complaint, however, reveals that this precise allegation is made in paragraph 55 of the complaint.

Admittedly, the instant case varies from Sinn and other cases where, factually, there was a single traumatic event as opposed to a course of conduct. The requirement of “contemporaneous observance of the event” may become problematic as the case moves forward; however, for purposes of a demurrer, where we must accept as true all averments in the complaint, the preliminary objections to this count must be overruled.

Count VII (Loss of Consortium Against All Defendants)

Defendants offer a demurrer to this count since its viability is derivative of Marquette Hunt’s claim of negligent infliction of emotional distress.

It follows that defendants’ demurrer to Count VII is dependent on a grant of demurrer to Count VI. As we have denied a demurrer to VI, so, too, must we deny a demurrer to Count VII. In doing so we note that the other elements to support a claim for consortium have been sufficiently pled.

Accordingly, we enter the following

ORDER

And now, February 6, 2008, it is hereby ordered as follows:

(1) Subparagraphs of paragraph 45: (u), (w), (y), (gg), (hh), (ii), (jj), (kk), (11) and (mm) are stricken for lack of factual specificity;

(2) Subparagraphs of paragraph 47: (a)-(d), (i)-(k), (m), (q)-(w), (aa)-(bb) and (dd)-(ff) are stricken for lack of factual specificity;

(3) Plaintiffs are granted 20 days from the date of this order to file, if they choose to do so, a more specific pleading;

(4) The preliminary objection relating to the factual specificity of the averments in Count III is denied.

(5) The demurrer challenging the legal sufficiency of the pleading in Count VI is denied.

(6) The demurrer challenging the legal sufficiency of the pleading in Count VII is denied.

      . There is no Count IV.

      . Once the perforation had occurred, barium began to leak into the abdominal cavity causing extensive peritonitis, formation of adhesions and a pericolic abscess.

      . In order to be successful, it is not always necessary that plaintiff observe the negligence of the defendant, “but rather experience(d) a sensory and contemporaneous observance of (the result).” See Love v. Cramer, 414 Pa. Super. 231, 235, 606 A.2d 1175, 1177 (1992); but see Bloom v. Dubois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671 (1991) (recovery denied where alleged negligence was a claim of omission and therefore without direct infliction of injury).


author: WORTHINGTON, J,

text:
    Commonwealth v. Wiggins

      Robert Salurman, district attorney, for Commonwealth.

      Wieslaw T. Niemoczynski, for defendant.
    July 17, 2006
   WORTHINGTON, J,

— On September 12,2005, the Commonwealth filed a criminal information charging Rasheem Wiggins (defendant) with one count each of rape of a child, in violation of 18 Pa.C.S. §3121(c), statutory sexual assault, in violation of 18 Pa.C.S. §3122(1), involuntary deviate sexual intercourse with a person less than 16 years of age, in violation of 18 Pa.C.S. §3121(a)(7), aggravated indecent assault of a person less than 13 years of age, in violation of 18 Pa.C.S. §3125(7), endangering the welfare of children, in violation of 18 Pa.C.S. §4304(a), unlawful contact/ communication with a minor, in violation of 18 Pa.C.S. §6318(a)(1), and corruption of minors, in violation of 18 Pa.C.S. §6301(a)(l).

Following a two-day trial, held on January 9 and January 10, 2005, a jury found defendant guilty on all counts except for endangering the welfare of children. On April 19,2006, after reviewing a pre-sentence investigation report prepared by the Monroe County Probation Department, we sentenced defendant to undergo a period of incarceration in a state correctional institution of not less than eight years, with a maximum not to exceed 16 years. Defendant was further ordered to undergo a sexual offender evaluation. After holding a hearing on the matter, we found defendant to be a sexually violent predator, and directed that he comply with all of the registration requirements set forth in 42 Pa.C.S. §9795.1.

Defendant filed a timely post-sentence motion on April 27, 2006, in which he argued that (1) his sentence was excessive given the circumstances of the case, (2) there were no aggravating circumstances, and (3) the evidence did not support the sexually violent predator status. We held a hearing on defendant’s post-sentence motion on May 15, 2006 and, by order issued after hearing, we denied defendant’s post-sentence motion.

Defendant filed a concise statement of matters complained of on appeal on June 5, 2006. In his 1925(b) statement, defendant argues that we erred, in our capacity as the trial court, in: (1) denying his motion in limine to limit the Commonwealth’s proof to dates and times reasonably related to March 28, 2006, the date set forth in the criminal information; (2) denying his motion in limine on jurisdictional grounds where the criminal information lacked jurisdictional facts in its concise statement of facts; (3) denying his reasonable request for an instruction to the jury that it could consider the victim’s belief that “make believe” was true in considering her testimony and making its determination in the case; (4) denying his request on two occasions, when the jury had posed questions during deliberations, to instruct the jury regarding the beyond a reasonable doubt standard of proof that the jury was to apply in deciding the case; (5) accepting the opinion of the Sexual Offender Assessment Board representative because the opinion was inadequately supported by necessary facts in that no reasonable effort had been made to review defendant’s history, the expert did not review the trial testimony, the expert transmuted the lack of evidence into evidence itself, and the expert purported to rely on defendant’s prior acquittal in another matter to support her opinion; and (6) sentencing him in the aggravated range because no actual aggravating circumstances existed. We will address each of defendant’s arguments in turn.

Defendant’s first and second arguments on appeal are based upon our denial of defendant’s motions in limine. Defendant’s initial argument is that we erred in denying his motion in limine to limit the Commonwealth’s proof to dates and times reasonably related to March 28,2006, which is the date set forth in the criminal information. In his second argument, defendant contends that we erred in denying his motion in limine on jurisdictional grounds where the criminal information lacked jurisdictional facts in its concise statement of facts.

Pennsylvania Rule of Criminal Procedure 560 sets forth the requirements for the filing of a criminal information and provides:

“(A) After the defendant has been held for court, the attorney for the Commonwealth shall proceed by preparing an Information and filing it with the court of common pleas.

“(B) The Information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:

“(1) a caption showing that the prosecution is carried on in the name of, and by the authority of, the Commonwealth of Pennsylvania;

“(2) the name of the defendant, or if the defendant is unknown, a description of the defendant as nearly as may be;

“(3) the date when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient;

“(4) the county where the offense is alleged to have been committed;

“(5) a plain and concise statement of the essential elements of the offense, substantially the same as or cognate to the offense alleged in the complaint; and

“(6) a concluding statement that ‘ all of which is against the Act of Assembly and the peace and dignity of the Commonwealth.’” Pa.R.Crim.P. 560.

In his first argument on appeal, defendant contends that we erred in denying his motion in limine to limit the Commonwealth’s proof to dates and times reasonably related to March 28, 2006, which is the date set forth in the criminal information. Our courts have repeatedly held that the Commonwealth is not restricted, in proving the date of an offense, to that alleged in the information. Commonwealth v. Neff, 149 Pa. Super. 513, 517-18, 27 A.2d 737, 739 (1942), citing Commonwealth v. Levy, 146 Pa. Super. 564, 23 A.2d 97 (1941). Rather, “the burden upon the Commonwealth is met by proof of the commission of the offense on some other date, fixed with reasonable certainty and within the prescribed statutory period.” Id.

In this case, the Commonwealth’s chief witness was the victim, a 5-year-old girl. Moreover, this was a case that involved sexual assault over a period of time while defendant was grooming the victim. It was sufficient for the Commonwealth to allege in the information the only date on which they knew with reasonable certainty that the offenses had occurred. The Commonwealth “need not always prove a single specific date for the crime charged; permissible leeway varies with the nature of the crime and the age and condition of the victim, balanced against the rights of the accused.” Commonwealth. v. Devlin, 460 Pa. 508, 516, 333 A.2d 888, 892 (1975). Accordingly, we gave the Commonwealth some latitude in proving the pattern of behavior that led up to the incidents of March 28, 2006. That is not to say that the Commonwealth was at liberty to explore dates and times not reasonably related to the incident in question. Rather, we denied defendant’s motion in limine because it was a request for an excessive limiting of the Commonwealth’s proof to the March 28, 2006 date. For the foregoing reasons, we maintain that our denial of defendant’s motion in limine in this regard was proper.

In his second argument on appeal, defendant contends that we erred in denying his motion in limine on jurisdictional grounds because the criminal information lacked jurisdictional facts in its concise statements of facts. We denied defendant’s motion in limine because we found the information to be satisfactory and in accordance with the rules governing the filing of informations. Although each discrete statement of facts in support of each count of the information did not include the name of the county, that information was included in the introductory language, which stated: “The attorney for the Commonwealth of Monroe County by this information charges that in the County of Monroe, Pennsylvania... (Criminal information.)

Our courts have consistently held that a criminal information should be read in a commonsense manner, rather than being construed in an overly technical manner. See Commonwealth v. Orrs, 433 Pa. Super. 260, 263, 640 A.2d 911, 912 (1994). Here, the language of the information demonstrated that the prosecution was carried on by the authority of the Commonwealth of Pennsylvania and the County of Monroe, included defendant’s name, included the date the offense was alleged to have been committed, put defendant on notice regarding the criminal acts with which he was being charged, the statutory sections that were, in turn, implicated, and his alleged conduct that gave rise to the charges, included the requisite “all of which is against the . . . peace and dignity...” language, and was signed by an attorney for the Commonwealth. The criminal information filed in this case contained the necessary jurisdictional facts and, as such, our denial of defendant’s motion in limine was proper.

Defendant’s third and fourth arguments on appeal are based upon our denials of various requests made by defense counsel regarding jury instructions. In his third argument, defendant contends that we erred in denying his reasonable request for an instruction to the jury that it could consider the victim’s belief that “make believe was true” in considering her testimony and making its determination in the case. In his fourth argument, defendant contends that we erred in denying his request on two occasions, when the jury had posed questions during its deliberation, to charge the jury with the standard instruction regarding the proof beyond a reasonable doubt standard that the jury was to apply in deciding the case.

The victim in this case, R.S., was 6 years old at the time of the trial, and 6 years old when the criminal conduct occurred. (N.T., 01/09/06, p. 23.) When young children are called to testify, they “must be examined for competency pursuant to the following test: (1) [the] witness must be capable of expressing intelligent answers to questions; (2) [the] witness must have been capable of observing the event to be testified about and have the ability to remember it; and (3) [the witness must be aware] of the duty to tell the truth.” Commonwealth v. Judd, 897 A.2d 1224, 1228 (Pa. Super. 2006), citing Commonwealth v. Delbridge, 578 Pa. 641, 662, 855 A.2d 27, 39 (2003), opinion after remand, 580 Pa. 68, 859 A.2d 1254 (2004). Accordingly, when the attorney for the Commonwealth called the victim to testify, he preceded his direct examination by asking her some basic questions to establish her competency as a witness. After the prosecutor had the opportunity to pose questions, defense counsel was likewise given the opportunity to ask the victim questions in relation to her competency as a witness. Defense counsel posed a single question:

“Defense counsel: Now, if I make believe I’m a fish and play that way, is that the truth or a lie?

“Witness: Truth.” (N.T., 01/09/06, pp. 25-26.)

At the conclusion of our jury instructions at the close of trial, defense counsel approached at side-bar and asked that we instruct the jury that “it could consider the vietim’s belief that ‘make believe’ was true in considering her testimony and making its determination in the case.” We denied his motion at side-bar (N.T., 01/10/06, p. 84) and now maintain that was the appropriate decision. During our final instructions, we charged the jurors as follows:

“Now, one of the very important things that you all do ... is that you are the judges of the facts. And you are the people who determine the credibility of the witnesses that you heard testify from the witness stand.

“I’m going to give you some instructions now on how you are to go about the things you are to consider in judging that credibility.

“As the judges of the facts, you are the sole judges of the credibility of the witnesses and their testimony. This means you must judge the truthfulness and accuracy of each witness’ testimony and decide whether to believe all or part or none of that testimony....

“While you are judging the credibility of each witness, you are likely to be judging the credibility of other witnesses or evidence. If three is a real irreconcilable conflict, it is up to you to decide which, if any, conflicting testimony or evidence to believe.

“As the sole judges of credibility and fact, you the jurors are responsible to give the testimony of any witness, and all of the other evidence, whatever credibility and weight that you think it deserves.

“If you decide that a witness has deliberately testified falsely about a material point, that is, about a matter that could affect the outcome of this trial, you may for that reason alone choose to disbelieve the rest of his or her testimony, but you are not required to do so. You should consider not only the deliberate falsehood but also all other factors bearing on a witness’ credibility in deciding whether to believe other parts of his or her testimony.

“Where there is a conflict in the testimony, the jury has the duty of deciding which testimony to believe. But you should first try to reconcile, that is, fit together, any conflicts in the testimony if you can fairly do so.” (N.T., 01/10/06, pp. 72-73, 74-75.)

By reciting the foregoing instruction, we directed the jurors how they were to determine the credibility of each witness. There was no need to specifically direct the jurors that they “could consider the victim’s belief that ‘make believe’ was true in considering [the victim’s] testimony and making its determination in the case,” because they were already told that they should consider “the truthfulness and accuracy of each witness’ testimony and decide whether to believe all or part or none of that testimony.”

In his fourth argument, defendant contends that we erred in denying his request on two occasions, when the jury had posed questions during its deliberation, to instruct the jury regarding the beyond a reasonable doubt standard of proof that it was to apply in deciding the case. We commenced our jury charge with the standard instruction regarding burden of proof. We stated:

“A fundamental principle of our system of criminal law is that the defendant is presumed to be innocent. The mere fact that he was arrested and accused of a crime is not any evidence against him. Furthermore, the defendant is presumed innocent throughout the trial and unless and until you conclude based on careful and impartial consideration of the evidence that the Commonwealth has ' proven him guilty beyond a reasonable doubt.

“It is not the defendant’s burden to prove that he is not guilty. Instead, it is the Commonwealth that always has the burden of proving each and every element of the crimes charged and that the defendant is guilty of those crimes beyond a reasonable doubt....

“Although the Commonwealth has the burden of proving that the defendant is guilty, this does not mean that the Commonwealth must prove its case beyond all doubt or to a mathematical certainty, nor must it demonstrate the complete impossibility of innocence.

“A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his or her own life. I’ll tell you that again. This is the legal definition of reasonable doubt. A reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his or her own life.

“A reasonable doubt must fairly arise out of the evidence that was presented, or out of the lack of evidence presented, with respect to some element of the crime. A reasonable doubt must be a real doubt. It may not be an imagined one, nor may it be a doubt manufactured in order to avoid carrying out an unpleasant duty.

“To summarize, you may not find the defendant guilty based on a mere suspicion of guilt. The Commonwealth has the burden of proving the defendant guilty beyond a reasonable doubt. If it meets that burden, then the defendant is no longer presumed innocent, and you should find him guilty. On the other hand, if the Commonwealth does not meet its burden, then you must find the defendant not guilty.” (N.T., 01/10/06, pp. 64-66.)

Likewise, when the jurors returned from their deliberation and asked the court to re-read each of the criminal charges, before we responded to their question, we reminded them of the burden of proof as follows:

“There were multiple counts of this information, as you recall, and I’ll go through these independently now.

“Remember that in the course of the presentation of a trial it’s the burden of proof upon the Commonwealth to establish beyond a reasonable doubt that the elements of the offense occurred ....” (N.T., 01/10/06, pp. 87-88.)

The jury never interrupted its deliberation to ask us to clarify the burden of proof in this case. Each juror was apprised of the burden of proof during jury selection, during the prosecutor’s and defense counsel’s opening statement and closing argument, and by the court in our final charge. We therefore denied defense counsel’s request to read the jurors that charge again. We maintain that there was no error in that decision.

In his fifth argument on appeal, defendant contends that we erred in accepting the opinion of the Sexual Offender Assessment Board representative because: (1) the expert’s opinion was inadequately supported by necessary facts because no reasonable effort had been made to review defendant’s history; (2) the expert did not review the trial testimony; (3) the expert transmuted the lack of evidence into evidence itself; and (4) the expert purported to rely on defendant’s prior acquittal in another matter to support her opinion.

When a court determines by clear and convincing evidence that a defendant is a sexually violent predator, that defendant becomes subject to the reporting requirements of Megan’s Law II. 42 Pa.C.S. §9795.1(b) provides, in pertinent part:

“The following individuals shall be subject to lifetime registration:

“(1) An individual with two or more convictions of any of the offenses set forth in subsection (a)

“(2) Individuals convicted of any of the following offenses:

“18 Pa.C.S. §3121 (relating to rape)

“18 Pa.C.S. §3123 (relating to involuntary deviate sexual intercourse)

“18 Pa.C.S. §3124.1 (relating to sexual assault)

“18 Pa.C.S. §3125 (relating to aggravated indecent assault)

“18 Pa.C.S. §4302 (relating to incest) when the victim is under 12 years of age

“(3) Sexually violent predators.” 42 Pa.C.S. §9795.1(b).

Because rape of a child, statutory sexual assault, involuntary deviate sexual intercourse, and aggravated indecent assault are predicate offenses triggering an adjudication of sexually violent predator status under Pennsylvania’s Registration of Sexual Offenders Act (Megan’s Law II), see 42 Pa.C.S. §9795.4(a), we ordered the State Sexual Offenders Assessment Board to evaluate whether defendant is a sexually violent predator.

The assessment procedure, in relevant part, was as follows. After conviction but prior to sentencing, we ordered defendant, who was found guilty after trial by jury of various offenses specified in section 9795.1, to be assessed by the board. A member of the board, Paula B. Brust M.A., then conducted an assessment of defendant to determine if he should he classified as a sexually violent predator. Ms. Brust submitted a written report containing her assessment to the district attorney. (Commonwealth’s exhibit no. 2.) Thereafter, a hearing was held to determine whether defendant is a sexually violent predator. At the time of the hearing, prior to sentencing, a determination of sexually violent predator status pursuant to Megan’s Law II was submitted to the court. We determined that the Commonwealth proved by clear and convincing evidence that defendant is a sexually violent predator. See 42 Pa.C.S. §9795.4; see also, Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003). Megan’s Law II defines a “sexually violent predator” as:

“A person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.’’’ 41 Pa.C.S. §9792; Commonwealth v. Bey, 841 A.2d 562, 563 (Pa. Super. 2004). (emphasis in original)

In reviewing the sufficiency of the evidence regarding the determination of sexually violent predator status, an appellate court will reverse the trial court only if it finds that the Commonwealth has not presented clear and convincing evidence sufficient to enable the trial court to determine that each element required by the statute has been satisfied. Commonwealth v. Moody, 843 A.2d 402, 408 (Pa. Super. 2004); 42 Pa.C.S. §9791 et seq.

At the hearing, prior to the imposition of sentence, we determined that the Commonwealth proved by clear and convincing evidence that defendant is a sexually violent predator. We found that each element required by the statute had been satisfied. See Commonwealth v. Krouse, 799 A.2d 835, 837-38 (Pa. Super. 2002). Defendant now argues that we erred in accepting the opinion of the Sexual Offender Assessment Board representative because: (1) the expert’s opinion was inadequately supported by necessary facts because no reasonable effort had been made to review defendant’s history; (2) the expert did not review the trial testimony; (3) the expert transmuted the lack of evidence into evidence itself; and (4) the expert purported to rely on defendant’s prior acquittal in another matter to support her opinion.

Paula Brust, the Sexual Offenders Assessment Board member who evaluated defendant, testified credibly at the hearing. Ms. Brust stated that, as part of the evaluation process:

“After we compile all our information, I go through all of the records that I have. And I make a determination based on the facts of the offense, past behaviors, et cetera, whether or not the offender meets the criteria for a sexually violent predator.” (N.T., 04/19/06, p. 9.)

Ms. Brust stated that although sometimes she will interview the offender as part of her evaluation, “in this case, [defendant] was not participating in the assessment process.” (N.T., 04/19/06, p. 9.) Accordingly, Ms. Brust performed her evaluation in this case by reviewing the factors set forth in 42 Pa.C.S. §9795.4, which must be considered when assessing a convicted sex offender for sexually violent predator status. These factors include: “multiple victim offense, excessive force, nature of sexual contact, relationship to victim, age of the victim, unusual cruelty during the commission of the offense, mental capacity of the victim, prior criminal record, and personal characteristics of the offender.” 42 Pa.C.S. §9795.4(b). Ms. Brust evaluated defendant in light of the aforesaid factors and prepared a report detailing the results of her evaluation. (N.T., 04/19/06, p. 9.) In her report, Ms. Brust concluded that defendant met the criteria under the statute and determined that defendant was a sexually violent predator. (N.T., 04/19/06, pp. 10, 15.)

The definition of the term “sexually violent predator” can be readily broken down into two component parts. A sexually violent predator is a person who: “(1) has been convicted of a sexually violent offense ... and (2) is determined to be a sexually violent predator . . . due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.” 42 Pa.C.S. §9792; Commonwealth v. Moody, 843 A.2d 402, 409 (Pa. Super. 2004). Ms. Brust’s conclusion that defendant was a sexually violent predator was based on her determinations that defendant “[met] the criteria for possessing a personality disorder and [met] the criteria for predatory behavior as defined by the statute.” (N.T., 04/19/06, p. 10.)

The Act defines mental abnormality as: “a congenital or acquired condition of a person that predisposes that person to the commission of criminal sexual acts to a degree that makes that person a menace to the health and safety of other persons.” 41 Pa.C.S. §9792.

In this case, Ms. Brust “determined that [defendant] met the criteria for a personality disorder NOS, which means not otherwise specified.” (N.T., 04/19/06, p. 11.) Ms. Brust explained her diagnosis as follows:

“Aperson diagnosed with a personality disorder NOS typically exhibits characteristics of a mixed personality disorder, if you will, where he doesn’t meet all the criteria for one specific personality disorder, or enough information might not be available to determine that he has a particular personality disorder.

“So the characteristics of the personality disorder NOS that [defendant] meets are; number one, failure to conform to social norms with respect to lawful behaviors as indicated by repeatedly performing acts that are grounds for arrest; number two, conning others for personal profit or pleasure; number three, irritability/ aggressiveness as indicated by repeated assaults; number four, reckless disregard for the safety of others; number five, is interpersonally exploitative, which means he takes advantage of others to achieve his own ends; [and] number six, lacks empathy, is unwilling to recognize the feelings and needs of others.” (N.T., 04/19/06, p. 11.)

It was Ms. Brust’s testimony that “this diagnosis does predispose [defendant] toward committing certain offenses, and his disorder causes him to experience an internal drive toward repeating sexual crimes, while not being solely defined by such acts.” (N.T., 04/19/06, pp. 11-12.)

Moreover, Ms. Brust concluded that defendant’s behavior was predatory in nature. Ms. Brust stated:

“According to the statute, predatory is an act directed toward a stranger or a person with whom a relationship has been maintained, established or promoted or initiated, in whole or in part, in order to facilitate or support victimization.

“[Defendant’s] actions were predatory in nature. He was only out of jail between two or three months when he started to sexually offend against a 5-year-old victim. His criminal activity has included assaultive offenses and now, most recently, his sexual offense.

“[Defendant] took advantage of the victim’s age, size and her naivete, exploiting her for his own sexual gratification. He was the in-house predator as he lived with the grandmother who was responsible for the caretaking of this victim. He waited for the grandmother to leave to assault the victim. He also went into the bathroom with her while she was cleaning herself when previously she needed no help with this task.

“He callously raped and sexually assaulted this victim with no regard to her feelings, so he did not have the best interest of the child as his priority... His thoughts were planned. They showed intent. He made it seem like it was a game. He was playing with the victim in order to groom her in order to get her to go along with what he was doing, so he had clear planning and intent involved in planning the commission of his crime.” (N.T., 04/19/06, pp. 12-13.)

In the pre-sentence investigation report prepared by the Monroe County Probation Department, there was mention that defendant was accused of a rape and acquitted of the charges following a jury trial in New York. When asked whether she was aware of that or had made any reference to that in her report, Ms. Brust responded: “I didn’t have that particular information available. But what I did have was a report from the father that according to the police report the father stated he thought [defendant] had been in Rikers for a sexually related crime, although I didn’t have that information in my report and I understand he was charged with sex offenses at that time.” (N.T., 04/19/06, pp. 13-14.) Ms. Brust clarified that she wasn’t aware of those circumstances at the time she made her report, so her report, as written, does not take that past incident into consideration. (N.T., 04/19/06, pp. 14, 30.)

During cross-examination by defense counsel, Ms. Brust testified that she did not have occasion to review any psychological evaluations that may have been made of defendant either in the Monroe County Correctional Facility or any other facility in which he may have been incarcerated. (N.T., 04/19/06, pp. 16-17.) She further stated that she neither personally examined defendant, nor did she administer any psychological tests. (N.T., 04/19/06, p. 17.)

However, she was quick to point out that she asked to interview defendant, but he chose not to participate in an interview. (N.T., 04/19/06, p. 17.) Moreover, Ms. Brust clarified that the criminal history that she took into consideration was an attempted robbery in 2000, an assault with intent to cause physical harm charge, to which defendant pled guilty and received five years probation, a probation violation due to possession of marijuana, and an intent of fraud and criminal trespass conviction in 2003. (N.T., 04/19/06, p. 18.) Although Ms. Brust did not know the details of all of those offenses, she testified that she was able to gauge from the nature of the charges that they were either violent offenses or aggressive offenses against another person. (N.T., 04/19/06, pp. 20, 22.)

We are of the opinion that Ms. Brust performed a very thoughtful, thoroughly researched evaluation of defendant. Accordingly, we found that her expert opinion was adequately supported by necessary facts. We found that she made every reasonable effort to review defendant’s history. It was defendant’s permissible decision not to participate in an evaluation. However, the fact that he is now contesting that Ms. Brust was not fully apprised of his history, when he could have sufficiently provided her with said history, is incongruous. Moreover, we found that the previous criminal convictions she relied upon to arrive at her conclusion were well within her purview to review. There is no indication that she relied on defendant’s acquittal in the other rape case to support her opinion. In fact, she credibly testified that she was not even aware of that acquittal at the time she prepared her report. Likewise, Ms. Brust cannot be said to have “transmuted the lack of evidence into evidence itself.” She relied on various information as she analyzed the relevant factors in order to arrive at her ultimate opinion.

Finally, with respect to defendant’s argument that Ms. Brust’s opinion was flawed because she “did not review the trial testimony,” we disagree. Specifically, defense counsel asked Ms. Brust the following question: “If the account you give as the underlying facts of what the victim’s account was, and if that account is somehow overstated, would that in any way affect your conclusion here today?” (N.T., 04/19/06, p. 26.) Defense counsel appeared to be insinuating that if Ms. Brust relied upon the conviction in this case, and did not consider the credibility of the child victim, her conclusion might be skewed. Defendant’s argument is without merit. Defendant was found guilty after trial by a jury of his peers. The credibility of the witnesses at trial, the testimony rendered, and the weight to be apportioned to the various witnesses and/or testimony was not relevant to Ms. Brust’s evaluation. It was sufficient to know that defendant was convicted of the various charges. Consequently, we find that defendant’s argument in this regard is without merit.

We were satisfied with Ms. Brust’s evaluation of defendant. We found that her assessment as well as her testimony at the hearing thoroughly detailed the “mental abnormality or personality disorder that makes [defendant] likely to engage in predatory sexually violent offenses.” 42 Pa.C.S. §9792; Commonwealth v. Moody, 843 A.2d 402, 409 (Pa. Super. 2004). We found the evidence to be clear and convincing, and it is therefore our determination that defendant’s sexually violent predator status was proper. Accordingly, we accepted the opinion of the Sexual Offender Assessment Board representative.

After reviewing a pre-sentence investigation report prepared by the Monroe County Probation Department, we sentenced defendant to undergo a period of incarceration in a state correctional institution of not less than eight years, with a maximum not to exceed 16 years. In his sixth and final argument on appeal, defendant contends that we erred in sentencing him in the aggravated range because no actual aggravating circumstances existed.

We are mindful that under Pennsylvania law, the court has discretion to determine whether aggravating circumstances exist. Commonwealth v. Hoover, 342 Pa. Super. 163, 492 A.2d 443 (1985). The Pennsylvania Superior Court has adopted a three-part analysis for reviewing aggravated sentences. See Commonwealth v. Hoover, 342 Pa. Super. 163, 166, 492 A.2d 443, 444 (1985), citing Commonwealth v. Duffy, 341 Pa. Super. 217, 491 A.2d 230 (1985). “First, a sentencing judge may consider any legal factor in deciding whether a defendant should be sentenced within the aggravated range.” See id. “Second, the sentencing judge’s statement of reasons on the record must reflect this consideration.” Id. “Finally, the sentencing judge’s decision regarding the aggravation of a sentence will not be disturbed absent a manifest abuse of discretion.” Id.

At the time of sentencing, we set forth the aggravating circumstances that led to our conclusion that defendant should be sentenced in the aggravated range. We found particularly troubling: “[that the victim] had significant emotional trauma. The grooming, the pillow over the face of the victim, the game...” (N.T., 04/19/06, p. 40.) Moreover, we stated:

“This child is forever, forever impacted by this event, by this crime, by this rape. And it’s going to change her life significantly in how she trusts people and how she interacts with people, in her relationships with men. It may not do it today or tomorrow or five years from now, but it may do it sometime after that. That’s the way this happens....

“And the fact that she was entrusted to this household and that you, [defendant], came in there after being released from prison and took advantage of the fact that this young, innocent child was there and was naive and trusted you — and I understand what the grooming part of it means, that you became friendly enough with her that she did trust you — and it went on until this happened is just in my mind despicable and horrendous.” (N.T., 04/19/06, pp. 38-39.)

Ultimately, the imposition of sentence by atrial court is highly discretionary and will not be disrupted absent the existence of a substantial issue. Commonwealth v. Williams, 386 Pa. Super. 322, 328, 562 A.2d 1385, 1388-89 (1989). We weighed any and all potential aggravating and mitigating factors and imposed a length of incarceration that was in accordance with the sentencing guidelines. Moreover, because defendant’s sentence was imposed following our receipt and review of a pre-sentence investigation report, there is a presumption that we were aware of relevant information regarding defendant’s character and that we weighed those considerations along with potential mitigating statutory factors. Commonwealth v. Cruz-Centeno, 447 Pa. Super. 98, 118, 668 A.2d 536, 545-46 (1995), see also, 42 Pa.C.S. §9781(b).

In Commonwealth v. Walls, 846 A.2d 152, 157 (Pa. Super. 2004), our Superior Court declared that when imposing a sentence, the trial court must consider various factors, including “the protection of the public, gravity of offense in relation to impact on victim and community, and rehabilitative needs of defendant,” and that the sentencing court must impose a sentence that is appropriate in light of the individualized facts of the underlying incident. Commonwealth v. Hanson, 856 A.2d 1254, 1259 (Pa. Super. 2004), citing id. at 157. We thoroughly considered all relevant factors in imposing an aggravated range sentence and, for the foregoing reasons, we sentenced defendant as we did in the aggravated range and denied his motion for reconsideration of sentence. Our sentence falls squarely within the aggravated range of the sentencing guidelines established for the crimes committed and does not exceed the statutory prescriptions.

      . Under Megan’s Law II, any offender convicted of a predicate offense, whether or not he is deemed a sexually violent predator, must participate in the registration system. See 42 Pa.C.S. §9795.4; see also, Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962 (2003).


author: CHESLOCK, J.,

text:
    McCabe v. Women’s Resources of Monroe County Inc.

      Edmund G. Flynn, for plaintiff.

      John K. Baker, for defendant.
    August 24, 2006
   CHESLOCK, J.,

— This matter comes before the court on defendant, Women’s Resources of Monroe County Inc.’s (WRMC) motion for judgment on the pleadings. The basic facts of the case can be summarized as follows: The plaintiff commenced this action on August 4, 2004 by complaint, which alleges that she was wrongfully discharged without warning, notice, counseling or an opportunity to be heard. In her complaint, the plaintiff, Teresa McCabe, alleges that she was wrongfully discharged by WRMC for violating the safety and confidentiality of a child to which plaintiff was providing services. Plaintiff allegedly encouraged the child to contact father about missed visitations. The complaint indicates that the discharge was in violation of public policy of this Commonwealth. Plaintiff contends the public policy involves supporting the fullest exercise of parental rights, including visitation, unless specifically prohibited or limited by order of court. Thereafter, on September 20, 2004, WRMC filed preliminary objections which were denied by the Honorable Peter J. O’Brien on November 5, 2004. On November 29, 2004, WRMC filed an answer with new matter in which it substantially denies the allegations of plaintiff’s complaint and sets forth in new matter that plaintiff’s claims are barred. WRMC filed a motion for judgment on the pleadings and a motion for sanctions on June 9, 2006. A praecipe for argument was filed and the matter was listed for oral argument. Oral argument was heard on August 7,2006 and this matter is now before the court for disposition.

. Pa.R.C.P. 1034 provides as follows:

“(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.

“(b) The court shall enter such judgment or order as shall be proper on the pleadings.”

Pa.R.C.P. 1034 provides for a motion for judgment on the pleadings to be used to test whether such a cause of action as pleaded exists at law. Bensalem Township School District v. Commonwealth of Pennsylvania, 518 Pa. 581, 544 A.2d 1318 (1988). “Amotion for judgment on the pleadings is in the nature of a demurrer.” Ridge v. State Employees’ Retirement Board of the Commonwealth of Pennsylvania, 690 A.2d 1312, 1314 n.5 (Pa. Commw. 1997). (citation omitted) A judgment on the pleadings may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Kosor v. Harleysville Mutual Insurance Company, 407 Pa. Super. 68, 595 A.2d 128 (1991). In determining if there is a dispute as to facts the court must confine its consideration to the pleadings and relevant documents. DiAndrea v. Reliance Savings and Loan Association, 310 Pa. Super. 537, 456 A.2d 1066 (1983). Furthermore, “no factual material outside the pleadings may be considered.” Goodrich-Amram, 2d §1035:1, p. 423. “The court must accept as true all well pleaded statements of fact, admissions and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.” Conrad v. Bundy, 777 A.2d 108, 110 (Pa. Super. 2001). “All averments of fact properly pleaded in the adverse party’s pleadings must be taken as true, or as admitted, unless their falsity is apparent from the record.” Bykowski v. Chesed Co., 425 Pa. Super. 595, 598, 625 A.2d 1256, 1258 (1993). (emphasis omitted) With this standard in mind, the court will examine the question of whether WRMC’s motion should prevail.

WRMC argues in support of its motion that plaintiff has no cause of action for wrongful termination of her employment relationship under Pennsylvania law. It is a well established principle that absent a clear violation of public policy, an at-will employee may be terminated for good cause, bad cause and no cause at all. Rank v. Township of Annville, 163 Pa. Commw. 492, 641 A.2d 664 (1994). However, the courts of this Commonwealth have recognized that a cause of action for wrongful termination of an at-will employment relationship does exist where a clear mandate of public policy is violated by the termination. Reuther v. Fowler & Williams Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978). The violation of a clear mandate of public policy in the past has been either political activities of the employer, jury duty responsibilities of an employee or employee’s right to freedom of expression. Kilpatrick v. Laneco Inc., 38 D.&C.3d 31, 34 (Northamp. Cty. 1985). In addition, a wrongful discharge cause of action may exist where there is specific intent on the part of the employer to hurt the employee. Id. However, the employee must demonstrate that the discharge was for the specific purpose of causing him harm. Harrison v. F. James PA. Inc., 558 F. Supp. 438 (Pa. 1983).

In reviewing the pleadings and accepting as true all well pleaded facts and considering only those facts which were specifically admitted, we find that plaintiff’s complaint fails to set forth a cause of action for wrongful discharge for a clear violation of public policy. Although plaintiff alleges that the public policy of this Commonwealth supports the fullest exercise of parental rights, including visitation, unless specifically prohibited or limited by order of court, this is not a right she is asserting for herself. Moreover, she does not allege that defendant discharged her for the specific purpose of causing her harm. We believe the plaintiff has failed to point to any statutory or public policy to substantiate her cause of action. Hence, it would be proper for this court to grant WRMC’s motion for judgment on the pleading and grant the entry of a judgment in favor of it and against plaintiff.

Plaintiff’s complaint also alleges that she was wrongfully terminated in violation of the terms contained in WRMC’s employee manual. Our Supreme Court has stated that a handbook distributed to employees as an inducement for employment may be an offer and its acceptance a contract. Morosetti v. Louisiana Land and Exploration Company, 522 Pa. 492, 495, 564 A.2d 151, 152 (1989). The Morosetti court opined that it was not sufficient to show only that the employer had a policy (handbook), but that the employer intended to offer it as a binding contract. Id. The employer must communicate the policy as part of a definite offer of employment or they are free to change (the policy) as events may require. Id. (citing Richardson v. Charles Cole Memorial Hospital, 320 Pa. Super. 106, 466 A.2d 1084 (1983)).

Instantly, plaintiff’s complaint alleges that her termination was not justified under the policies regarding discipline as found in the defendant’s employee manual, to which plaintiff had a right to rely. Additionally, the complaint alleges that the termination was in direct violation of its stated policy for discipline. In applying the above standard, and also accepting as true the allegations contained in plaintiff’s complaint, we cannot grant WRMC’s motion. Although the facts contained in the complaint fail to clearly allege a binding contract, at this stage in the case, we cannot clearly say that there cannot be a cause of action against WRMC. As such, we are required to deny the entry of judgment. This shall not prohibit WRMC from challenging plaintiff’s cause of action, if proper, at a later time. Accordingly, we will deny WRMC’s motion.

The next issue before the court is WRMC’s request for sanctions against plaintiff pursuant to Pennsylvania Rule of Civil Procedure 1023.1. Rule of Civil Procedure 1023.1 states in pertinent part that a “signature of an attorney or pro se party constitutes [certification] that the signatory has read the pleading . . . [and] certifies that, to the best of that person’s knowledge, information and belief, . . . (c)(1) it is not being presented for an improper purpose ... (2) the claims, defenses, and other legal contentions therein are warranted by existing law ... (3) the factual allegations have evidentiary support ... (d) if, after notice and a reasonable opportunity to respond, the court determines that subdivision (c) has been violated, the court may,... impose an appropriate sanction upon any attorneys, law firms and parties that have violated subsection (c).” This court has significant discretion to determine whether to impose sanctions. Id. We believe that the imposition of sanctions should be sparingly granted because of the chilling effect it may have on the rights of all parties to litigate controversies to conclusion. Further, we have determined that based upon the pleadings, plaintiff may have a cause of action for wrongful termination. However, at this time, it is premature for determination. Accordingly we decline to grant WRMC’s request for sanctions.

In accordance with the foregoing, we enter the following order:

ORDER

And now, August 24, 2006, the defendant, Women’s Resources of Monroe County Inc.’s motion for judgment on the pleadings is denied and its request for sanctions is denied.


author: TERESHKO, J,

text:
    Kornicki v. Cherniack

      Christopher Kornicki, pro se.

      Matthew H. Fry and James W. Christie, for appellee.
    October 10, 2006
   TERESHKO, J,

PROCEDURAL HISTORY

Plaintiff, Christopher Kornicki, appeals from this court’s order dated July 12, 2006, which granted defendant, Emily Chemiack’s preliminary objections to plaintiff’s complaint and dismissed the case with prejudice.

FACTUAL BACKGROUND

On May 22, 1989, plaintiff pled guilty to two counts of indecent assault and corrupting the morals of minors. (Memo of law in support of preliminary objections to plaintiff’s complaint, p. 2.) Plaintiff would later be arrested on new charges, as well as for technical violations of his probation. (Id.) In May 2000, the court found that plaintiff violated his probation and sentenced him to a term of seven to 14 years incarceration. (Id.)

On October 29, 2003, Attorney Cherniack was appointed to represent plaintiff. (Id.) Cherniack filed a Post Conviction Relief Act (PCRA) petition on behalf of plaintiff. (Id.) The trial court formally dismissed the PCRA petition and Cherniack filed an appeal of the order to the Superior Court on May 23, 2005 in order to preserve the plaintiff’s right to pursue all of his issues. Plaintiff’s request for recalculation of credit for time served is currently pending before the Superior Court.

Plaintiff filed this legal malpractice claim alleging that Attorney Cherniack was negligent because she did not raise the issue of credit for time served in plaintiff’s PCRA petition. Defendant subsequently filed preliminary objections, along with her motion to determine preliminary objections. On July 12,2006, the trial court ordered that Chemiack’s preliminary objections were sustained and dismissed plaintiff’s case with prejudice. Plaintiff thereafter filed his notice of appeal on July 16,2006 and timely issued his 1925(b) statement of matters complained of on appeal on August 21,2006. The sole issue on appeal is whether the trial court committed an error of law or abused its discretion in granting the defendant’s preliminary objections on the issue of failing to raise a miscalculation of credit for time served on plaintiff’s sentence on his PCRA petition, wherein such a request cannot be made in a PCRA petition.

LEGAL ANALYSIS

Legal malpractice claims, whether civil or criminal, bear the traditional elements of a general claim of negligence — duty, breach, causation and damages. Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993). Under Bailey, in order to sustain a malpractice action against a criminal defense attorney, the plaintiff must establish five elements: (1) the employment of the attorney; (2) reckless or wanton disregard of the criminal defendant’s interest by the attorney; (3) that “but for” the attorney’s conduct, the plaintiff (criminal defendant) would have obtained an acquittal or complete dismissal of the charges; (4) the existence of damages; and that (5) the plaintiff (criminal defendant) has pursued post-trial remedies and obtained relief which was dependent on attorney error. Bailey, 533 Pa. at 250-51, 621 A.2d at 115. The burden on a plaintiff in a criminal malpractice action is higher than in the civil context because, among other reasons, a criminal defendant has many opportunities to allege ineffective assistance of counsel or to otherwise attack his conviction. Id. at 250, 621 A.2d at 114.

When considering a ruling on preliminary objections in the form of a demurrer, our standard of review is well settled:

“All material facts set forth in the complaint as well as all the inferences reasonably deducible therefrom are admitted as true for the purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be in favor of overruling it.” Veneri v. Pappano, 424 Pa. Super. 394, 397, 622 A.2d 977, 978 (1993).

Conclusions of law, unwarranted inferences from facts, opinions and argumentative allegations in plaintiff’s complaint need not be considered by the court in determining preliminary objections. McCullough v. Clark, 784 A.2d 156, 157 (Pa. Super. 2001).

To determine whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. Rambo v. Greene, 906A.2d 1232, 1235 (Pa. Super. 2006). When sustaining the trial court’s ruling will result in the denial of claim or a dismissal of suit, preliminary objections will be sustained only where the case is free and clear of doubt, and this court will reverse the trial court’s decision regarding preliminary objections only where there has been an error of law or abuse of discretion. Id.

According to the elements for legal malpractice for criminal defense attorneys, plaintiff could not sustain a claim for legal malpractice of Ms. Cherniack.

Plaintiff cannot maintain a legal malpractice claim for failing to raise the issue of credit for time served since raising such an issue would be improper under Pennsylvania law. According to the complaint, Cherniack was negligent when she allegedly failed to raise a miscalculation of credit for time served on plaintiff’s sentence in his PCRA petition. (Complaint, ¶15.) However, a request for time served cannot be made in a PCRA petition. Commonwealth v. Perry, 386 Pa. Super. 534, 538, 563 A.2d 511, 513 (1989). See also, Commonwealth v. Isabell, 503 Pa. 2, 10, 467 A.2d 1287, 1291 (1983).

In Perry, the Superior Court affirmed the dismissal of a PCRA petition that alleged a miscalculation of credit for time served, holding that a PCRA petition is not an appropriate method to challenge such credit. The court explained that the proper redress in such cases should be sought by (1) an original action in Commonwealth Court against the Bureau of Corrections if an erroneous computation or (2) by writ of habeas corpus ad subjiciendum if the alleged error is attributed to an ambiguity in the sentence imposed. Perry, supra at 538, 563 A.2d at 513.

The Superior Court further clarified:

“It was only when the petitioner challenges the legality of a trial court’s alleged failure to award credit for time served as required by law in imposing sentence, that a challenge to the sentence was deemed cognizable as a due process claim in PCRA proceedings. See Commonwealth v. Walker, 286 Pa. Super. 239, 428 A.2d 661 (1981). (emphasis in original) A challenge to the Bureau of Correction’s computations or construction of the terms of sentences imposed is neither a direct nor even a collateral attack on the sentences imposed; and so, such claims were not deemed cognizable in PCHA proceedings. See Commonwealth v. Isabell, supra at 10, 467 A.2d at 1291. Because appellant has not challenged the trial courts’ sentences, but has challenged the Bureau of Correction’s computations or construction of the sentences, it is unnecessary to determine whether the analysis in Commonwealth v. Walker, supra, applies to actions brought under the new PCRA. It is enough, for the present, to note that a challenge to a Bureau of Corrections’ computation or construction of a sentence (or sentences) imposed may not be brought by a PCRA petition. See 42 Pa.C.S. §§9543(a), 9545(b).” Id.

In our case, Cherniack was appointed as counsel to file a PCRA petition. (Complaint, ¶7.) Because the law does not permit counsel to challenge the computation of time served in a PCRA petition, Cherniack was practicing within the applicable law by not raising this issue in the improper forum. As a result, Cherniack cannot be said to have acted with “reckless or wanton disregard of the criminal defendant’s interest by the attorney” in not raising such an issue wherein the forum was improper. Thus, plaintiff has failed to meet the elements of legal malpractice in this case and his complaint was properly dismissed under the circumstances.

CONCLUSION

In light of the foregoing analysis, this court believes that defendant’s’ preliminary objections were properly sustained, and should be affirmed by the court above.