author: LASH, J.,

text:
    Huff v. Exeter Township

      C.P. of Berks County,
    no. 04-6030.

      Marc B. Kaplin and Gregg I. Adelman, for plaintiffs.

      Andrew J. Bellwoar, for defendants.
    November 17, 2004
   LASH, J.,

The plaintiffs, Kelley M. Huff and Enchanted Acres Farm Inc., have appealed the order of this court dated October 12, 2004, sustaining the preliminary objections of defendants, Exeter Township, Cheryl Franckowiak, in her capacity as Exeter Township Zoning Enforcement Officer, and the Exeter Township Board of Supervisors, and dismissing plaintiffs’ complaint and plaintiffs’ motion for preemptory judgment in mandamus. In sustaining the defendants’ preliminary objections, this court found that the writ of mandamus sought by plaintiffs was an inappropriate remedy and that the matters complained of should be determined by the Exeter Township Zoning Hearing Board. Accordingly, this court relinquished jurisdiction to the zoning board for further proceedings. This appeal followed.

In sustaining preliminary objections, this court recognizes that preliminary objections should be denied unless it is certain and beyond all doubt that the law will not permit recovery. Copechal v. Township of Bristol, Department of Licenses and Inspections, 668 A.2d 1222, 1224 (Pa. Commw. 1995). In considering preliminary objections, the court must admit as true all material facts set forth in the complaint, as well as all inferences deducible therefrom. McMahon v. Shea, 547 Pa. 124, 129, 688 A.2d 1179, 1181 (1997).

Plaintiff Huff is president of plaintiff, Enchanted Acres Farm Inc., and owner of approximately 13.5 acres of land located at 5560 Old Boyertown Pike, Exeter Township, Berks County, Pennsylvania. The property is located in the township’s Rural (R) Zoning District. The structures on the property include a two-story colonial farmhouse, another smaller house, a smokehouse and a barn.

On or about November 28, 2001, plaintiff Huff executed an agreement of sale to purchase the property, with the condition that she first receive approval from the township to use the property as a “use oriented facility for event, housing and entertainment.” Plaintiff then filed an application for a special exception before the Township Zoning Hearing Board. In the application, plaintiffs describe the proposed use of the property as follows:

“Creation of a recreation area to include, but not be limited to, a playground, picnic ground, horse riding trail, hiking trail, fishing and family and entertainment center to include pre-school field trips, children activities, boy/ girl scout trips, birthday parties and obstacle course. Baked goods and coffee will also be available to be consumed solely by persons utilizing the premises. The charging of admission and the sale of refreshments and the rental or sale of any athletic equipment will be clearly accessory to and incidental to the permitted recreation use.”

A hearing was held on the application on January 17, 2002. At the hearing, plaintiff Huff testified that the property’s use would have a family and children’s theme. It would feature events within a farm atmosphere, including ponies, fishing and walking trails. She would have pre-school field trips during the day, hayrides, a pumpkin patch, pony rides, boy and girl scout activities, birthday parties and “anything children oriented.” She also proposed an outdoor playground with a multi-climbing area and a picnic area. She believed that the proposed use complied with the recreation use permitted by special exception in the R, Rural Zoning District.

Plaintiff Huff also set forth her intended use for the structures on the property. In the main house, she intended to serve coffee and baked goods on the first floor. On the second floor would be a teddy bear picnic room and a tea party room. In the bam basement, a large sandbox area would be located. In the upstairs area of the bam, an obstacle course would be featured.

On January 22, 2002, the solicitor for the board issued a “certification of order” granting plaintiffs’ application for a special exception pursuant to section 402(3)(C) of the Exeter Township Zoning Ordinance, to convert a substantial portion of the property from residential and open space use to a recreation area. In the order, the zoning relief was made subject to the following conditions:

“(1) All recreational activities and events must be child and family centered;
“(2) All activities and events must be supervised;
“(3) substantially all of the events and activities must be prescheduled in order to control the number of those attending at any given time and to ensure proper supervision;
“(4) The hours of operation are limited to the period beginning no earlier than 8 a.m. and ending no later than 8 p.m.; and
“(5) Outdoor activities shall be limited to the following:
(a) Hayrides;
(b) Picnic area;
(c) Pony riding trails;
(d) Fishing;
(e) Hiking trails;
(f) Pumpkin patch;
(g) Scout activities;
(h) Children’s playground; and
(i) Similar type activities.”

On April 4,2002, plaintiff Huff finalized the purchase of the property and then began renovating the existing main house and barn.

According to plaintiffs’ complaint, from September 2002 through November 2003, plaintiffs operated continuously and hosted recreation uses such as birthday parties, baby christening parties, family reunions, baby showers, Girl and Boy Scout activities, playground and picnic area activities, horseback riding, pre-school field trips and various children’s activities.

On or about November 25, 2003, in response to a request for a plumbing permit application, defendant, Cheryl Franckowiak, the Exeter Township Zoning Enforcement Officer, contacted plaintiffs with concerns she had regarding the indoor recreational activities being conducted in the buildings. Defendant Franckowiak subsequently sent correspondence to plaintiff Huff dated December 10, 2003, which stated, among other things:

“It is my opinion that the following occasions are not recreational (consistent keeping with the zoning ordinance and certification of order): banquets, reunions, showers (bridal/baby), anniversary parties, engagement parties, rehearsal dinner, christening, baptism, or other parties, company/organization, but rather are commercial uses and would not be allowed under current zoning or ZHB approval.”

On December 11 and 12, 2003, defendant township denied the plumbing permit application, as well as the corresponding building permit application, stating that the special exception order is “limited to outdoor recreational events.”

In January 2004, plaintiffs appealed the matter to the board. According to the appeal petition, the ruling appealed from was the “letter from zoning officer dated December 12, 2003 which interpreted the January 22, 2002 special exception as permitting only outdoor recreational events and prohibiting use of the barn for anything other than accessory storage. The zoning hearing board decision does not so limit the activities.”

The appeal petition requested a special exception under section 402(3)(C) of the zoning ordinance, or in lieu thereof, a variance under section 402.

On March 3,2004, a hearing was held before the board. After the hearing, the board deferred its ruling. Prior to the board rendering a decision, plaintiffs withdrew the appeal. In lieu thereof, on May 2, 2004, plaintiffs filed the within complaint requesting a writ of mandamus. Defendants then filed preliminary objections, resulting in this court’s ruling of October 12, 2004.

Plaintiffs’ argument is that, under these facts and circumstances, they have a clear right to a writ of mandamus. They allege two bases for this conclusion. First, the order issued on January 22, 2002 tacitly permits indoor recreational uses. Secondly, the Dunn Community Center, owned and operated by Exeter Township, conducts the same type of activities; the township’s refusal to permit plaintiffs to carry on similar activities constitutes preferential and disparate treatment of the township’s recreational center.

“A writ of mandamus is an extraordinary remedy and ordinarily will not be issued unless the party seeking the writ demonstrates a clear legal right to the relief requested, a corresponding duty on the part of the defendant, and the lack of an adequate alternative remedy.... Furthermore, for a clear legal right to exist, the governmental act which the party seeks to compel must be purely ministerial in nature and must not involve any discretion on the part of municipal officials.” Copechal v. Township of Bristol, Department of Licenses and Inspections, 668 A.2d 1222, 1224 (Pa. Commw. 1995), citing Lindy Homes Inc. v. Sabatini, 499 Pa. 478, 453 A.2d 972 (1982).

Further, though plaintiffs could have proceeded with obtaining a decision from the zoning hearing board, this does not, in and of itself, preclude this court from hearing the mandamus action. Copechal, supra at 1225.

In support of their first argument, plaintiffs maintain that sections 402(2) and 402(3) of the township zoning ordinance permit indoor recreation and that the certification order grants them permission to use the indoor areas for this use.

Section 402(2) of the zoning ordinance states that: “Land and buildings in an R district may be used for the following purposes and no others, unless a special exception as provided for in 402(3) is granted.” Thus, plaintiffs argue it is permissible for a use granted by special exception to be conducted within a building.

Section 402(3) of the zoning ordinance provides, in pertinent part:

“(3) Uses permitted by special exception. The following uses are permitted when special exceptions are granted by the zoning hearing board in accordance with 902(5) of this chapter....
“(C) Recreation uses, including parks (except amusement parks), playgrounds, picnic grounds, horse riding trails and academies, golf courses (except driving ranges and miniature golf courses), swimming areas and pools, hiking trails, trails for motorized and non-motorized bicycles, boating, fishing, shooting and hunting club and areas, camps (except campgrounds), subject to 607 of this chapter.”

According to plaintiffs, the term “recreation uses” is not limited to the listing of activities set forth in 402(3) (C). Further, reading the two provisions in conjunction, the recreation uses could be either outdoor or indoor, and if not expressly limited by township zoning officials, is then permissible.

Read in this context, the plaintiffs argue that the certification of order only specifies and limits outdoor activities. Since it does not speak to a limitation on indoor recreational use, and since plaintiffs presented evidence supporting a request for indoor recreation, the indoor recreational use is implicitly granted by the terms of the certification order.

The analysis is not as simple as plaintiffs would suggest. First, the recreation uses listed in 402(3)(C) all contemplate outdoor recreation. This is in keeping with the specific intent of the “R” district to permit “limited residential development at low density in an area predominately characterized by farmland, open spaces and woodland.” Accordingly, the involvement of buildings or structures may be incidental to the outdoor recreational use only.

Secondly, the terms of the certification order could be interpreted to include only outdoor activities. As the relief sought is a special exception, plaintiffs have the burden of affirmatively establishing whether the indoor recreational uses fall within the special exception provision of the zoning ordinance. If the burden is met, the board should then make an express finding so stating. Here, the certification order makes no reference whatsoever to indoor uses. Further, though plaintiffs presented testimony on the issue, the application itself did not seek a special exception for indoor recreation uses. The parameters of the certification order may have been set therefore within the context of the application.

There are other issues of greater concern. Plaintiffs appear to have expanded the scope of the indoor activities beyond the representations previously made. According to defendant Franckowiak, plaintiffs use the indoor facilities to host banquets, reunions, bridal and baby showers, anniversary and engagement parties, rehearsal dinners, christenings, baptisms or other parties. If these activities are being conducted, the indoor use substantially exceeds the proposed uses set forth in plaintiff Huff’s testimony at the January 17, 2002 hearing. This is significant because the additional uses impose a substantially greater burden on the property and the neighboring community. Attendance at banquets, wedding receptions and other parties would be significantly greater than would be expected for tea parties and teddy bear picnics. This raises parking and traffic issues. There may be greater noise and other disruptions which affect the neighboring community. Since these types of indoor uses were not proposed at the initial hearing, the board never had the opportunity to consider the impact of those uses on the community. The board cannot be held to have consented to these uses, under the circumstances.

These uses may also be considered to be commercial uses. Defendant Franckowiak raised this concern in her correspondence of December 10,2003. If these uses are commercial, then plaintiffs’ application is subject to section 607(1)(A) of the zoning ordinance which states:

“607 Recreational use regulations
“(1) The following controls shall apply to all recreational uses not owned by Exeter Township.
“(A) All activities of a commercial nature shall be clearly accessory to and incidental to the permitted recreational use, such as the charging of admission, the sale of refreshments and the rental or sale of athletic equipment.”

There is a substantial question whether these activities would be merely incidental to an acceptable recreational use.

As stated, plaintiffs also complain that Exeter Township is using property owned by it in the same manner. By denying plaintiffs indoor recreation, the township is applying the ordinance in an unequal and disparate manner.

In their complaint, plaintiffs aver that Exeter Township’s Dunn Community Center is rented by township residents and nonresidents for private parties. These private parties feature music, dancing, karaoke, carnival games, foosball, ping pong, air hockey, Nintendo and crafts. Further, there are other indirect recreational uses conducted in the community center, including aerobics, pilates, chess club and street hockey. The township requires anyone using the community center to pay a fee to the township.

The comparison between plaintiffs’ uses and the Township Center uses is not appropriate. The uses conducted by Exeter Township at the center were not permitted by special exception only, but are permitted by right under section 402(2) of the zoning ordinance. 402(2)(C) permits land and buildings in an “R” district to be used for “municipal use.” Municipalities are granted power to provide for recreation opportunities to the citizens and residents of the community. Section 67201 of the Municipalities Planning Code specifically permits buildings owned, leased or controlled by a township to be used for indoor recreation centers, among other things. Accordingly, the township is well within its authority to operate the center. Plaintiffs, on the other hand, had to seek and obtain a special exception to use the property for recreational purposes and are subject to the January 22, 2002 order framing the scope of activity permitted on the property.

This court finds that there are facts and issues present which contravene plaintiffs’ position that they have a clear right to use the property for any recreational use not prohibited by the January 22,2002 order. In discussing these facts and issues, this court is merely recognizing the existence of same and not addressing the merits. Nevertheless, the averments in plaintiffs’ complaint cannot sustain a claim for writ of mandamus. Accordingly, this court sustained the preliminary objections and remanded to the board for further proceedings.

This court requests your honorable court affirm the order of October 12,2004, and dismiss plaintiffs’ appeal.

      . Notes of Testimony, January 17, 2002, pp. 12-14.

      . Notes of Testimony, January 17, 2002, pp. 15-16.

      . Exeter Township Zoning Ordinance no. 500, adopted May 15, 2000.

      . Plaintiffs’ complaint, paragraph 27.

      . The complaint also contained a count seeking relief under 42 U.S.C. § 1983 — Substantive due process and 14 U.S.C. §1983 — Equal protection. Defendants then filed a notice of removal to the United States District Court for the Eastern District of Pennsylvania. However, by stipulation entered June 22, 2004, the parties agreed that the substantive due process and equal protection claims would be dismissed and that the mandamus claim would be remanded to this court for further proceedings.

      . Most likely, this claim applies to the dismissed counts of plaintiffs’ complaint. However, in an abundance of caution, this court will rule on this issue within the context of the mandamus count.

      . 402(1) of the zoning ordinance.

      . Paragraphs 44-47 of plaintiffs’ complaint.

      . 53 P.S. §10701-A(a)(3).

      . 53 P.S. §67201.

      . Mandamus cannot be used to review or compel undoing of action taken by public official or tribunal in good faith and in the exercise of legitimate jurisdiction, even if the decision was wrong, nor can it be used to perform the function of an appeal or a writ of error. Barness Land Development Company LLC v. Board of Supervisors of Washington Township, 852 A.2d 463, 466 (Pa. Commw. 2004).


source: Caselaw Access Project

author: GEPHART, Member,

license: Public Domain

text:
    Office of Disciplinary Counsel v. Panarella

      Disciplinary Board Docket no. 98 D.B. 2001.
    February 4, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GEPHART, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

By order of the Supreme Court of Pennsylvania dated July 10, 2001, Nicholas Panarella Jr., respondent, was placed on temporary suspension as a result of his conviction of one count of the offense of accessory after the fact to a wire fraud scheme to deprive the public of the honest services of an elected official. Petitioner, Office of Disciplinary Counsel, filed a petition for discipline against respondent on October 28, 2002.

A disciplinary hearing was held on March 19, 2003, before Hearing Committee 1.14 comprised of Chair Mary Frances Ryan, Esquire, and Members Brad Steven Rush, Esquire and Martin L. Trichon, Esquire. Richard L. Scheff, Esquire, represented respondent.

Following briefing by the parties, the Hearing Committee filed a report on September 2, 2003, and recommended that respondent be suspended from the practice of law for a period of four years retroactive to the date of the temporary suspension.

Respondent filed a brief on exceptions and a request for oral argument on September 22,2003. Petitioner filed a brief opposing exceptions on October 14, 2003.

Oral argument was held on November 10, 2003, before a three-member panel of the Disciplinary Board chaired by Member Smith Barton Gephart, Esquire, with Members Marvin J. Rudnitsky, Esquire and Robert C. Saidis, Esquire.

This matter was adjudicated by the Disciplinary Board at the meeting of November 19, 2003.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of any attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of said Rules of Disciplinary Enforcement.

(2) Respondent was born in 1945 and was admitted to practice law in the Commonwealth of Pennsylvania in 1973. His last registered office address for the practice of law is 5 Rockledge Court, Marlton, NJ 08053. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) On October 24, 2000, the United States government filed an indictment against respondent charging him with mail and wire fraud in violation of 18 U.S.C. §§1341 and 1343, and with aiding and abetting the same in violation of 18 U.S.C. §2. Both the mail fraud and the wire fraud counts alleged in general terms that the scheme in question entailed an effort to defraud the Commonwealth of Pennsylvania and its citizens of their right to State Senator F. Joseph Loeper’s honest services in violation of 18 U.S.C. §1346.

(4) On October 25,2000, respondent entered a plea of not guilty to the charges contained in the indictment.

(5) On November 8, 2000, respondent filed a motion to dismiss the indictment for failing to state a federal crime. On November 3, 2000, the District Court for the Eastern District of Pennsylvania entered an order denying the motion but stating that the government must show that (1) “the scheme involved or contemplated the deprivation of Loeper’s honest services to the public,” (2) respondent “intended to influence or otherwise improperly affect Loeper’s performance of his duties,” and (3) respondent “intended to deceive the public about his payments.”

(6) In December 2000, the federal government filed a one-count superseding information in the United States District Court for the Eastern District of Pennsylvania charging respondent with one count of accessory after the fact to a wire fraud scheme to deprive the public of the honest services of an elected official in violation of 18 U.S.C. §3.

(7) On December 8,2000, respondent executed a guilty plea agreement.

(8) On December 15,2000, respondent pleaded guilty to the count charged in the superseding information.

(9) On March 13, 2001, the honorable Marvin Katz sentenced respondent to a six-month term of imprisonment, a one-year term of supervised release, a $20,000 fine, and a $100 special assessment.

(10) Respondent has since completed his term of imprisonment, paid the $20,000 fine in full and has completed his term of supervised release.

(11) By order dated July 10,2001, the Supreme Court of Pennsylvania temporarily suspended respondent from the practice of law.

(12) The underlying facts and circumstances surrounding the conviction are as follows:

(a) Respondent was a specialist in tax law who provided tax collection services through his law firm, The Law Offices of Nicholas Panarella, located in Philadelphia.

(b) Respondent also operated a tax collection business known as Municipal Tax Bureau or Municipal Tax Collection Bureau (MTB). Respondent collected various taxes authorized by Pennsylvania law to be imposed on local governments.

(c) In July 1993, F. Joseph Loeper Jr., a Pennsylvania state senator, entered into a written agreement with respondent and MTB pursuant to which Senator Loeper would receive a monthly consulting fee in exchange for consulting services rendered on behalf of MTB.

(d) Respondent sought Senator Loeper’s help to expand his business to other Pennsylvania municipalities and other state governments.

(e) Beginning in July 1993, under the terms of the written agreement, respondent paid Senator Loeper approximately $5,000 per month in consulting fees. These payments were made by check.

(f) Between 1993 and 1997, respondent directly or indirectly made payments to Senator Loeper pursuant to the agreement.

(g) In 1994, respondent requested his sub-contractor, J.G. Carpino Associates, make the payments to Loeper. In 1995, he requested that his business associate, Seymour Rubin, make the payments.

(h) Respondent’s company issued Senator Loeper an accurate Internal Revenue Service Form 1099 for Loeper’s 1993 consulting income.

(i) Senator Loeper was required to identify respondent’s company as an outside source of income on his state ethics financial disclosure form. Senator Loeper did not accurately disclose MTB as the source of his consulting fees on the 1993 ethics form. Instead, he falsely disclosed that he received fees from J.G. Carpino Associates, a company who provided investigative services to MTB and other entities.

(j) Respondent knew that Senator Loeper was required by state and federal law to disclose his financial and business relationships with respondent, and knew that Senator Loeper had filed a false financial disclosure form with the Pennsylvania Ethics Commission.

(k) Senator Loeper was the subject of an inquiry by the Philadelphia Inquirer concerning the source of the consulting fees. Senator Loeper devised a false cover story to hide his involvement with M1B.

(l) Respondent assisted in concealing Loeper’s involvement by going along with the false cover story. He met with Seymour Rubin to discuss a draft of Rubin’s reply to a reporter’s question. Respondent helped to edit Rubin’s draft letter.

(m) On December 7,1998, respondent became aware that the federal government was investigating Senator Loeper, himself and others.

(13) The Hearing Committee found that respondent did not demonstrate sincere remorse, as does this board.

(14) Respondent has no prior history of discipline.

(15) Respondent served in the United States Army Special Forces in Central America and Vietnam from 1967 to 1970. He earned a Combat Infantry Badge for leadership and bravery in battle.

(16) Numerous character letters were submitted on respondent’s behalf attesting to his good reputation in the community.

III. CONCLUSIONS OF LAW

By his actions as set forth above, respondent violated the following Rule of Disciplinary Enforcement:

(1) Respondent’s conviction constitutes a “serious crime” as defined by Rule 214(i), Pa.R.D.E., and forms the basis for discipline, pursuant to Rule 203(b)(1).

IV. DISCUSSION

This matter comes before the Disciplinary Board on a petition for discipline charging respondent with violation of Rule 203(b)(1) of the Pennsylvania Rules of Disciplinary Enforcement, arising out of his conviction of one count of accessory after the fact to a wire fraud scheme to deprive the public of the honest services of an elected official. As with all disciplinary matters predicated on a criminal conviction, the proceeding is not an opportunity to retry the underlying facts of the crime, but to determine the extent of discipline to be imposed on respondent. Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982). Consideration is to be given to any aggravating or mitigating circumstances. Office of Disciplinary Counsel v. Valentino, 556 Pa. 609, 730 A.2d 479 (1999).

The Hearing Committee recommended a suspension of four years. The committee reviewed pertinent case law and found that in cases of wire fraud or mail fraud, the court handed down lengthy suspensions. In making its final recommendation, the committee relied heavily on its finding that respondent did not express sincere remorse for his criminal actions. The committee further found that respondent was evasive in his answers to numerous questions and did not admit his guilt. The committee considered respondent’s exemplary military service, letters of good character and his lack of prior discipline. Nevertheless, the committee found that respondent’s criminal action and demeanor clearly outweighed the mitigating factors.

Respondent took exception to some of the committee’s findings and conclusions and to its recommendation. Respondent contends that the committee took improper consideration of newspaper articles; the committee misunderstood the circumstances of the criminal conviction; the committee did not properly credit respondent’s show of remorse; and the committee did not consider some additional findings of fact submitted by respondent as mitigating factors. Oral argument was held before a three-member panel of the board.

After review of the record and the report of the oral argument panel, the board finds that respondent’s exceptions are without merit. The committee did not place improper weight on the newspaper articles to the extent that its recommendation of discipline was more severe due to the content of the articles. The committee did consider respondent’s mitigating factors and addressed them in the discussion portion of the report, specifically noting his exemplary military career. The committee recognized the mitigating factors but determined that respondent’s actions and demeanor outweighed such factors to the extent that they did not weigh heavily in the committee’s final analysis of discipline.

Respondent took exception to certain findings of fact made by the committee, arguing that the committee misunderstood the circumstances of the crime. The committee correctly recognized its duty to examine the surrounding circumstances of the criminal conviction and to weigh them accordingly. The committee based its findings on respondent’s testimony, the joint stipulations, and exhibits.

The committee accurately assessed respondent’s demeanor. At different points in his testimony he stated, “I don’t believe that I committed a crime.” (N.T. 94.) When asked by the Hearing Committee what, if anything, did respondent do wrong, he stated, “That’s a fair question. I think that I was a friend and made an error in judgment.” (N.T. 108.) When asked again what he did wrong, respondent stated, “I was a friend, and I made an error in judgment.” (N.T. 110.) He continued, “I guess I should have been more vigorous to my standard. I probably should have been more vigorous in getting him to amend his return, okay?” (N.T. 111.) Based on this evidence, the Hearing Committee was justified in finding that he did not display any genuine remorse. The Hearing Committee was also disturbed by respondent’s evasive answers to some questions, including to petitioner’s question concerning respondent’s address. Respondent did not wish to offer that information until directed by the committee to respond.

The only issue to be resolved is the appropriate sanction to address respondent’s misconduct. There is no per se rule of discipline and each sanction is unique to the circumstances of the individual attorney. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983). Nevertheless, the board may be guided by the outcomes of disciplinary cases involving similar criminal convictions.

In the matter of Office of Disciplinary Counsel v. Weiner, no. 2 D.B. 1999 (Pa. Feb. 29, 2003), Attorney Weiner was convicted of two counts of wire fraud. In addition, he committed perjury when testifying in his criminal trial. The board found that Mr. Weiner’s false testimony was an aggravating factor and recommended that he be suspended for a period of four years. The court suspended Mr. Weiner for a period of five years, retroactive to the date of his temporary suspension.

In the matter of In re Anonymous No. 21 D.B. 1996, 174 disciplinary docket no. 3 (Pa. May 6, 1997), an attorney was convicted of one count of mail fraud for submitting false insurance claims. He received a suspension of three years retroactive to the date of his temporary suspension.

Respondent’s misconduct in the instant matter is serious. He deserves a lengthy suspension, based on the precedent established in similar cases. Respondent’s lack of remorse and seeming inability to comprehend the gravity of his wrongdoing aggravates the underlying facts of the matter, as does his evasiveness in answering petitioner’s questions. After balancing the facts of the criminal conduct with these aggravating circumstances, the board recommends that respondent be suspended for a period of four years, retroactive to the date of his temporary suspension on July 10, 2001.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Nicholas Panarella Jr., be suspended from the practice of law for a period of four years retroactive to July 10, 2001.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Members Sheerer, Wright, Peck and O’Connor dissented and would recommend a five-year retroactive suspension.

Board Member Newman dissented and would recommend a four-year prospective suspension.

Board Member Brown recused in this matter.

ORDER

And now, May 11, 2004, upon consideration of the report and recommendations of the Disciplinary Board dated February 4, 2004, it is hereby ordered that Nicholas Panarella Jr. be and he is suspended from the bar of this Commonwealth for a period of four years, retroactive to July 10, 2001, and he shall comply with all the provisions of Rule 217 Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

Madam Justice Newman and Mr. Justice Baer dissent and would impose a five-year suspension retroactive to July 10, 2001.


author: BROWN, Member,

text:
    Office of Disciplinary Counsel v. Anonymous

      Disciplinary Board Docket no. 77 D.B. 2001.
    February 3, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

BROWN, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On May 29, 2001, petitioner, Office of Disciplinary Counsel, filed a petition for discipline against respondent, [ ]. The petition charged respondent with violations of the Rules of Disciplinary Enforcement and Rules of Professional Conduct as a result of his failure to comply with a condition attached to an informal admonition.

A disciplinary hearing was held on January 16, 2002, with continued hearings held on June 19,2002 and September 24, 2002, before Hearing Committee [ ] comprised of Chair [ ], Esquire, Member [ ], Esquire, and Alternate Member [ ], Esquire. Respondent was represented by [ ], Esquire at the hearings.

The Hearing Committee filed a report on July 28, 2003, and recommended that respondent be suspended for a period of six months, with the suspension stayed in its entirety, and that he be placed on two years of probation.

This matter was adjudicated by the Disciplinary Board at the meeting of August 26, 2003.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg, PA 17101, is invested, pursuant to the Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent was born in 1949 and was admitted to practice law in Pennsylvania in 1982. His registration address is [ ]. He is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) In accordance with Rules 208(a)(2) and (3), Pa.R.D.E., it was determined that respondent should receive an informal admonition with an attached condition as a result of misconduct involving a client.

(4) By letter dated February 13,2001, respondent was directed to appear before Chief Disciplinary Counsel on March 12, 2001, to receive the informal admonition.

(5) The condition of providing the complainant with both an accounting of his time and a refund of any unearned fee was to be satisfied prior to the administration of the informal admonition.

(6) Chief Disciplinary Counsel’s notice further informed respondent that, pursuant to Rule 208(a)(6), Pa.R.D.E., respondent had 20 days to demand, as a right, that a formal proceeding be initiated against him and that in the event of such demand, respondent need not appear for the administration of the informal admonition.

(7) On February 16, 2001, Chief Disciplinary Counsel’s letter was personally served on respondent.

(8) Respondent did not demand formal proceedings and is conclusively deemed to have violated the Rules of Professional Conduct set forth in the February 13,2001 letter from Chief Disciplinary Counsel.

(9) On March 12,2001, the day set for the administration of the informal admonition, respondent appeared as he was previously directed.

(10) Because respondent had not complied with the condition attached to the informal admonition, respondent requested, and Chief Disciplinary Counsel agreed, to postpone the informal admonition for 30 days.

(11) By letter dated March 12, 2001, respondent was directed by Chief Disciplinary Counsel to provide proof of his compliance with the condition within 30 days of the date of the letter.

(12) The letter of March 12,2001, was sent by regular mail to respondent’s attorney registration address and was not returned.

(13) By letter dated April 17, 2001, Chief Disciplinary Counsel informed respondent that, as he had not yet complied with the condition, respondent was being given an additional 20 days from the date of the letter to comply, and if there was no compliance, formal charges would be commenced.

(14) The letter of April 17, 2001, was sent by regular mail and was not returned.

(15) Respondent did not respond to Chief Disciplinary Counsel’s April 17, 2001 letter.

(16) Respondent did not refund any money to his client nor did respondent account for his time during the representation so as to justify retention of the funds as payment.

(17) Respondent’s client made a claim to the Lawyer’s Fund for Client Security. The fund adjudicated the claim and reimbursed the client $3,000, which was the full amount owed.

(18) Respondent subsequently reimbursed the Pennsylvania Lawyer’s Fund for Client Security. No additional monies are owed.

(19) Respondent admitted that he ignored his duties to his client, the court and the profession by failing to fulfill the conditions attached to the informal admonition.

(20) Respondent does not have a good recollection of his reasons for failing to respond to Chief Disciplinary Counsel’s letter and failing to fulfill the conditions, other than he put the notices aside and simply did not remember.

(21) Respondent began treating with Dr. [A], aboard-certified psychiatrist, in September 2001. He was feeling depressed and was unable to cope with those feelings.

(22) Respondent is currently being treated for depressive illness by Dr. [A].

(23) Respondent’s treatment consists of the anti-depressant medication Zoloft, with supporting psychotherapy sessions on a monthly basis.

(24) Respondent had been feeling depressed starting late in 2000. He experienced sadness, emotional distance from his family, lack of pleasure, and suicidal ideation.

(25) Respondent was evaluated by [B] M.D., a board-certified psychiatrist, who by deposition proffered an opinion to the Hearing Committee.

(26) Dr. [B] opined that respondent developed symptoms of a major depressive disorder late in the year 2000.

(27) Dr. [B] further opined that respondent’s depressive state was a significant contributing factor to his misconduct in 2001.

(28) Dr. [B] did admit on cross-examination that the degree of respondent’s non-responsiveness to disciplinary proceedings was extreme. He stated that, in his opinion, while depression is associated with a lack of motivation or interest, the extent of respondent’s reluctance to participate in a serious set of charges and hearings was extreme.

(29) Dr. [B] further admitted on cross-examination that he was unaware of respondent’s prior disciplinary history, most notably the failure to appear at a private reprimand, which resulted in a public censure in 1990.

(30) Dr. [B] opined that respondent needs to continue with his treatment program and that he would benefit from having someone monitor his ongoing treatment, but his overall prognosis is positive.

(31) Respondent is currently employed as a supervisor in the [ ] County Public Defender’s Office. In that capacity, he makes case assignments, evaluates attorneys and performs file reviews.

(32) Respondent does not represent private clients.

(33) Respondent has a prior disciplinary history consisting of an informal admonition in 1986 and a public censure in 1990.

(34) The public censure occurred as a result of respondent’s non-appearance before the Disciplinary Board after being ordered to appear for a private reprimand.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Disciplinary Enforcement and Rules of Professional Conduct:

(1) Pa.R.D.E. 203(b)(2) — Willful failure to appear before Disciplinary Counsel for informal admonition.

(2) Pa.R.D.E. 204(b) — Failure to comply with conditions attached to an informal admonition shall be grounds for reconsideration of the matter and prosecution of formal charges.

(3) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

In addition to the foregoing violations resulting from respondent’s failure to comply with conditions attached to an informal admonition, he is conclusively deemed to have violated the following Rules of Professional Conduct as a result of the underlying misconduct:

(4) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(5) R.P.C. 1.4(b) — A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.

(6) R.P.C. 1.16(d) — Upon termination of the representation a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests.

(7) The board further finds that respondent did not meet his burden of proof pursuant to Office of Disciplinary Cowtsel v. Braun, 520 Pa. 157, 533 A.2d 894 (1989), that his depression was a substantial factor in causing his misconduct.

IV. DISCUSSION

This matter is before the board on a petition for discipline charging respondent with violations of the Rules of Disciplinary Enforcement and Rules of Professional Conduct as a result of his failure to fulfill a condition attached to an informal admonition.

The parties reached a stipulation concerning the facts of the matter and agreed that respondent violated the rales charged in the petition for discipline as a result of his noncompliance with the condition attached to the informal admonition.

Under the existing law, when an attorney fails to appear for an informal admonition, private reprimand or public censure, the sanction imposed to address that failure is oftentimes an increase to the next level of discipline. In re Anonymous No. 27 D.B. 1998, no. 503 disciplinary docket no. 3 (Pa. Feb. 14,2000); In re Anonymous No. 122 D.B. 1995, no. 403 disciplinary docket no. 3 (Pa. April 20, 1998). In this matter, respondent has a prior history of discipline consisting of a public censure and an informal admonition. The public censure is particularly noteworthy as it resulted from respondent’s failure to appear before the Disciplinary Board for the administration of a private reprimand. The instant matter marks the second time that respondent has failed to appear for private discipline. As a consequence of his prior history, the board is persuaded that more private discipline will do little to impress upon respondent the seriousness of his actions.

Before the board can make a recommendation of discipline, however, it must address the mitigation raised by respondent. Respondent raised the issue of a psychological disorder which may have contributed to his failure to comply with the condition attached to the informal admonition. In support of his claim that he suffered from depression which caused his misconduct, respondent introduced the deposition testimony of [B] M.D., a board-certified psychiatrist. Dr. [B] met with respondent for several hours on March 4, 2002. He also examined the treatment notes of Dr. [A], respondent’s treating psychiatrist, from September 2001 to March 2002, and the letter sent by Dr. [A] to respondent’s counsel regarding treatment. Based on his review, Dr. [B] opined that respondent was suffering from a depressive illness starting in approximately late 2000, and this depressive illness was a significant contributing factor to respondent’s difficulty responding to the Disciplinary Board. However, Dr. [B] further testified that, while depression is associated with lack of motivation and interest, the extent of respondent’s reluctance to participate in the serious charges against him was somewhat extreme. Dr. [B] was unaware of respondent’s previous encounters with the disciplinary system, including respondent’s failure to appear for a private reprimand in 1990, which resulted in a public censure.

Dr. [B] offered his opinion on respondent’s prognosis, concluding that, as long as he continues with his treatment program, he is competent to practice law. Dr. [B] suggested that respondent would benefit from a monitor for his situation.

After review of the expert testimony, the board concludes that respondent did not meet his burden under Office of Disciplinary Counsel v. Braun. While Dr. [B] initially made a connection between the depressive disorder and the misconduct, this testimony was weakened on cross-examination when he admitted that respondent’s actions were extreme, even considering that respondent was in a depressed state. Additionally, Dr. [B’s] lack of knowledge concerning respondent’s prior history of discipline in general weakens his conclusions regarding his current misconduct, as it is clear Dr. [B] did not have a full case history of respondent before him.

Although the board does not accept Dr. [B’s] testimony to mitigate the type of discipline to be imposed on respondent, this testimony should be afforded due consideration as regards respondent’s current competence to practice law. Respondent received a positive prognosis from Dr. [B], and the record reveals that respondent is committed to his treatment program. Respondent is employed in a supervisory position and does not actively practice law or represent clients. The board perceives that respondent is not a threat to the public or to the legal community, and so a complete loss of license is not warranted. The board recommends that respondent be suspended for a period of six months, with the suspension stayed in its entirety and respondent placed on probation for a period of two years. This period of probation would, of necessity, entail conditions, such as a mental health monitor, to ensure respondent’s compliance with his medical treatment. In this way, respondent is able to maintain his legal employment with the knowledge that, if he violates his probation, he will be placed on suspension for six months.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be suspended from the practice of law for a period of six months; that the suspension be stayed in its entirety; and that respondent be placed on probation for a period of two years, subject to the following conditions:

(1) Respondent shall comply with all terms of the treatment plan as directed by [A] M.D.

(2) Respondent shall select a mental health monitor subject to the approval of the Office of Disciplinary Counsel.

(3) Respondent shall provide physician’s reports verifying the above counseling and treatment to the mental health monitor.

(4) Respondent shall furnish his mental health monitor with his treating physician’s name, address and telephone number.

(5) Respondent shall cooperate fully with his mental health monitor.

(6) The mental health monitor shall do the following during the period of respondent’s probation:

(a) Meet with respondent at least monthly and review all physician’s reports to ensure that respondent is meeting the counseling and treatment conditions referenced above in (2);

(b) Maintain weekly telephone contact with respondent;

(c) Assist respondent in arranging any necessary professional mental health treatment;

(d) File with the executive director and secretary of the board quarterly written reports that the conditions referenced above have been met; and

(e) Immediately report to the executive director and secretary of the board any violation by respondent of the terms and conditions of probation.

(7) If at any time during the course of his probation respondent resumes the active practice of law or represents private clients, he shall immediately advise the executive director and secretary of the board so that the board can impose any additional conditions deemed appropriate by the board.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

ORDER

And now, April 20, 2004, upon consideration of the report and recommendations of the Disciplinary Board dated February 3,2004, it is hereby ordered that [respondent] be and he is suspended from the bar of this Commonwealth for a period of six months; that the suspension be stayed in its entirety and that he be placed on probation for a period of two years, subject to the following conditions:

(1) Respondent shall comply with all terms of the treatment plan as directed by [A] M.D.

(2) Respondent shall select a mental health monitor subject to the approval of the Office of Disciplinary Counsel.

(3) Respondent shall provide physician’s reports verifying the above counseling and treatment to the mental health monitor.

(4) Respondent shall furnish his mental health monitor with his treating physician’s name, address and telephone number.

(5) Respondent shall cooperate fully with his mental health monitor.

(6) The mental health monitor shall do the following during the period of respondent’s probation:

(a) Meet with respondent at least monthly and review all physician’s reports to ensure that respondent is meeting the counseling and treatment conditions referenced above;

(b) Maintain weekly telephone contact with respondent;

(c) Assist respondent in arranging any necessary professional mental health treatment;

(d) File with the executive director and secretary of the board quarterly written reports that the conditions referenced above have been met; and

(e) Immediately report to the executive director and secretary of the board any violation by respondent of the terms and conditions of probation.

(7) If at any time during the course of his probation respondent resumes the active practice of law or represents private clients, he shall immediately advise the executive director and secretary of the board so that the board can impose any additional conditions deemed appropriate by the board.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), PaJR.D.E.


author: JONES II, J.,

text:
    Beckermeyer v. AT&T Wireless

      Mark R. Cuker, for plaintiff.

      Walter H. Swayze, for defendant Panasonic.

      Mary Catherine Roper, for defendant AT&T.
    October 22, 2004
   JONES II, J.,

Presently before the court are the preliminary objections of defendants AT&T Wireless Services Inc. (misidentified as AT&T Wireless) and Panasonic Telecommunications Systems Company (misidentified as Panasonic Telecommunications Company, division of Matsushita Electric Corporation of America) to the fourth amended class action complaint (misidentified as the third amended class action complaint) of plaintiff Brandon Beckermeyer. For the reasons stated below, the preliminary objections are sustained in part and overruled in part.

BACKGROUND

According to the complaint, on August 21,2001, plaintiff purchased a Panasonic Duramax cellular phone designed by Panasonic. Plaintiff made his purchase for $225 via the internet from Nationwide Wireless, who was an authorized agent of AT&T at the time of the sale. Prior to the purchase of the phone, plaintiff advised Nationwide Wireless that he did not intend to purchase wireless service from AT&T, but was not advised the phone would only work on AT&T’s network.

AT&T, and certain other wireless carriers, use a technology called time division multiple access (TDMA) to broadcast their wireless signals. The user of a TDMA cellular phone determines which TDMA-based carrier’s network to use. To direct a cellular phone to use a particular carrier’s network, the cellular phone’s system operator code (SOC) must be programmed to work on that network. A cellular phone that is sold to work on one TDMA network can be programmed to work on the network of another TDMA-based carrier by changing the SOC. For example, a Nokia TDMA cellular phone originally used on the Cingular wireless network can be programmed to work on AT&T’s network by entering codes on its keypad to change the SOC.

The phone was delivered to plaintiff in an AT&T box with an AT&T sticker and, when initially turned on, read AT&T Wireless. Plaintiff attempted to program the phone for another TDMA-based carrier by changing the SOC, but failed because the SOC was locked. Neither defendant disclosed the locking of the SOC to plaintiff. The locking of the SOC is neither integral nor essential to the use of the phone on AT&T’s wireless network.

Plaintiff contacted both AT&T and Panasonic to learn how to disable the SOC lock, but was informed that the phone was sold in such a manner that it could not be reprogrammed to work on another TDM A carrier’s network. Both defendants also refused to refund plaintiff’s money for the phone. Thereafter, plaintiff signed up with AT&T for wireless service, but became disenchanted with its quality and discontinued his service. He paid a termination fee in connection with this process.

Plaintiff has brought this complaint as a class action. He alleges violations of the Magnuson Moss Warranty Act (Count I, misidentified as Count II), breaches of warranty (Count II), and violations of the Pennsylvania Unfair Trade and Consumer Protection Act (Count III). Plaintiff seeks damages and a disclaimer warning consumers that the phone cannot be used on other wireless carrier’s networks.

DISCUSSION

Defendants have raised Preliminary Objections to each count of the complaint in the nature of a demurrer. In this posture, the court considers all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom as true. 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 is sustained, this doubt should be resolved in favor of overruling it. See Moser v. Heistand, 545 Pa. 554, 559, 681 A.2d 1322, 1325 (1996).

In my previous order of December 3,2003, each count of plaintiff’s prior complaint was dismissed and the plaintiff was granted leave to amend for “claims under the Magnuson Moss Warranty Act relating to anti-tying and warranty form violations.” Although plaintiff has disregarded this order by bringing all his previously dismissed claims, he has alleged certain new facts that, in essence, change the phone. In plaintiff’s prior complaint, he alleged problems with an AT&T phone. In this complaint, he alleges difficulties with a TDMA phone. Nonetheless, this change does not breathe new life into the claims for breach of express warranty, breach of the warranty of fitness for a particular purpose, or violation of the Pennsylvania Unfair Trade and Consumer Protection Act. Therefore, defendants’ objections to Count II as applied to the claims for breach of express warranty and breach of the warranty of fitness for a particular purpose are sustained and this count is dismissed in part and defendants’ objections to Count III are sustained and this count is dismissed.

In Pennsylvania, the elements of the implied warranty of merchantability are defined by statute. See 13 Pa.C.S. §2314. Plaintiff questions whether the phone complies with the requirement that the relevant goods are “fit for the ordinary purposes for which such goods are used.” 13 Pa.C.S. §2314(b)(3). The “ordinary purpose” of a TDMA cellular phone is the use of that cellular phone on TDMA networks. Whether such usage may be confined to a particular network cannot be determined at this stage. Contrary to defendants’ representations, whether a product is defective is not central to a claim for breach of the implied warranty of merchantability. See Gall v. Allegheny County Health Department, 521 Pa. 68, 75, 555 A.2d 786, 789-90 (1989) (explaining merchantability). Defendants’ objections to Count II as applied to the implied warranty of merchantability are overruled.

Plaintiff alleges a violation of the disclosure requirements of the Magnuson Moss Warranty Act, 15 U.S.C. §2301 et seq. Under the Warranty Act, a warrantor must conform the terms of any written warranty to those promulgated by the Federal Trade Commission. See 15 U.S.C. §2302(a). According to the FTC, a warranty “shall clearly and conspicuously disclose in a single document in simple and readily understood language” certain items, including the description and identification of the products, parts, characteristics, components, or properties excluded from the warranty. 16 C.F.R. §701.3. A “property” of the phone is its ability to connect to TDMA-based networks. Plaintiff determined that the phone is blocked from accessing TDMA-based networks other than AT&T’s. The provision in the contract (the AT&T “Welcome Guide”) indicating that the phone could not be used on a different wireless carrier’s network is not in the same document as the remainder of the warranty. Splitting the warranty between two documents violates the “single document rule” central to the Warranty Act’s disclosure requirements. See Cunningham v. Fleetwood Homes of Ga. Inc., 253 F.3d 611, 621 (11th Cir. 2001). Therefore, defendants’ objection to Count I with respect to 15 U.S.C. §2302(a) is overruled.

Plaintiff asserts that defendants violated the “tying” provisions of the Warranty Act. The Warranty Act prevents a warrantor from conditioning warranty coverage of its product on the consumer’s use, in connection with the product, of any article or service identified by brand, trade, or corporate name. See 15 U.S.C. §2302(c). In this instance, the phone worked on AT&T’s network. Defendants made the SOC unalterable by the consumer and refused to assist plaintiff in reprogramming the SOC. These acts prevented the phone from being used on another TDMA-based wireless carrier’s network. Essentially, the “ordinary purpose” component of the implied warranty of merchantability was met only when the phone connected to AT&T’s network. This connection of the warranty to a branded service violates the Warranty Act. Therefore, defendants’ objection to Count I as applied to 15 U.S.C. §2302(c) is overruled.

Plaintiff alleges that defendants violated the Act by placing an unconscionable time restriction on the implied warranties connected to the phone. The Warranty Act permits an implied warranty to be limited in duration to the same period as the written warranty as long as the limitation is conscionable and clearly set forth. See 15 U.S.C. §2308. Determination of the reasonableness of the durational period is a matter of law. See Bush v. American Motors Sales Corp., 575 F. Supp. 1581, 1583 (D. Col. 1984). A one-year period is neither unreasonable nor unconscionable, and plaintiff sets forth no facts to the contrary. Furthermore, plaintiff brought this action less than one year after purchasing the phone and can show no harm pursuant to this section of the Warranty Act. Therefore, defendants’ objection to Count I with respect to 15 U.S.C. §2308 is sustained.

In addition to asserting that plaintiff failed to provide sufficient factual allegations to establish his claims, defendants also argue that the claims are preempted by federal law. As amended, the Communications Act of 1934, 47 U.S.C. § 151 et seq., establishes the regulatory scheme governing wireless communications. Defendants put forward three different theories of preemption — express, field and conflict — to support their position that the federal scheme bars plaintiff’s claims. None is convincing.

The starting point for a preemption analysis is ascertaining the construction of the two laws and then determining whether they are in conflict. See Chicago & N. W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 317 (1981). The relevant laws need not be statutes. See Shulick v. PaineWebber Inc., 554 Pa. 524, 528-29, 722 A.2d 148, 150-51 (1998).

Express preemption invalidates state laws that are contrary to an explicit federal provision. See Gibbons v. Ogden, 22 U.S. 1, 211 (1824). The Communications Act provides that “no state or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a state from regulating the other terms and conditions of commercial mobile services.” 47 U.S.C. §332(c)(3)(A). Thus plaintiff’s claims would be barred if the complaint sought to regulate market entry or rates. The complaint makes no mention of market entry or rates. Instead, the complaint asserts that defendants did not adequately disclose the phone’s limitations in violation of the Warranty Act and Pennsylvania consumer protection laws. These claims address the “other terms and conditions of commercial mobile services,” which are expressly reserved for the states.

Turning to the remedies sought by plaintiff does not change the outcome under this analysis. As an initial matter, the Communications Act provides that “[n]othing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies.” 47 U.S.C. §414. Consistent with this provision, plaintiff seeks damages and informational disclosure. Certainly, any award in plaintiff’s favor “is likely to impact rates and the manner in which services are delivered, but this indirect result does not convert such challenges into a direct challenge to rates and market entry contemplated by the preemptive language of the statute.” Moriconi v. AT&T Wireless PCS, LLC, 280 F. Supp.2d 867, 876 (E.D. Ark. 2003). To hold otherwise would exempt companies involved in wireless communications from every state law, regulation, or court order that impacted their bottom line, which contravenes the plain language of 47 U.S.C. §332(c)(3)(A). The chief regulator in this area, the Federal Communications Commission (FCC), recognizes that wireless communications companies may be “subject to damages for a non-disclosure or false advertising claim under applicable state law if it misrepresents what those rates are or how they will apply, or if it fails to inform consumers of other material terms, conditions, or limitations on the service it is providing.” Wireless Consumers Alliance Inc., 15 F.C.C.R. 17021, ¶27 (2000). The complaint makes allegations analogous to these parameters. Defendants’ express preemption arguments fail.

As implied forms of preemption, neither field nor conflict preemption relies upon a direct statutory or regulatory provision. Instead, these forms of preemption examine whether the challenged state regulation would interfere with the federal regulatory scheme. Field preemption blocks state laws in those instances in which the federal regulatory scheme is so pervasive as to make reasonable the inference that there is no room for state supplementation. See Fidelity Federal Savings & Loan Association v. De La Cuesta, 458 U.S. 141, 153 (1982). Conflict preemption arises when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. See International Paper Co. v. Ouellette, 479 U.S. 481, 492 (1987). The “other terms and conditions” clause makes clear that the federal regulatory scheme leaves room for state regulation of the wireless communication industry that does not directly impact market entry or rates.

To overcome the limits to federal power in the wireless communications area, defendants attempt to recast plaintiff’s claims into ones within the scope of federal responsibility. The basis of defendants’ implied preemption arguments is that the plaintiff seeks to modify the technical standards set forth by Congress and the FCC. See defendant AT&T’s memorandum of law in support of preliminary objections at 21 (“There can be no doubt that the federal government has occupied the field of regulation of the technical and system performance standards for wireless phone service and equipment.”), 25 (“The federal goals of uniformity and technological flexibility would be destroyed by state-by-state regulation of technological requirements for wireless phones.”). If true, plaintiff’s claims would be preempted. See An In quiry Into the Use of the Bands 825-845 MHz and 870-890 MHz for Cellular Communications Systems, 86 F.C.C.2d 469 (1981) (adopting technical standards). This premise is faulty. Such technical aspects of the phone are not challenged by plaintiff.

A review of the complaint makes the inaccuracy of defendants’ position clear. Plaintiff states that the SOC lock is not essential to the functioning of the phone and that the TDMA cellular phone manufactured by Nokia for use on the Cingular network has a reprogrammable SOC. Both the phone and the Nokia cellular phone have been approved by the FCC. Defendants have not provided evidence that the FCC has considered whether a SOC should be permanent or alterable; at most, that the SOC itself is required. This information creates a reasonable inference that such a characteristic of the SOC is not regulated by the FCC. Cf. Nader v. Allegheny Airlines, 426 U.S. 290, 299-300 (1976); (“There is no board requirement that air carriers engage in over booking or that they fail to disclose that they do so.”). Plaintiff’s requested relief is disclosure of the permanence of the phone’s SOC consistent with the consumer protection laws. As no technological change is implicated by either the factual allegations or the desired relief, defendants’ implied preemption arguments fail.

Since there is no express warranty claim proceeding, defendant Panasonic’s separate arguments require no consideration.

ORDER

And now, October 22, 2004, upon consideration of defendants’ preliminary objections to plaintiff’s fourth

amended class action complaint (misidentified as the third amended class action complaint) and plaintiff’s responses thereto, and in accordance with the attached memorandum opinion, it is hereby ordered and decreed as follows:

(1) Defendants’ preliminary objections to Count I (misidentified as Count II) are overruled as they pertain to 15 U.S.C. §2302(a) and 15 U.S.C. §2302(c). All other preliminary objections to this count are sustained and this count is partially dismissed in accordance with this paragraph;

(2) Defendants’ preliminary objections to Count II are overruled as they pertain to 13 Pa.C.S. §2314. All other preliminary objections to this count are sustained and this count is partially dismissed in accordance with this paragraph; and

(3) Defendants’ preliminary objections to Count III are sustained and this count is dismissed.

      . Plaintiff did not establish a violation of this warranty in his prior complaints because he did not allege that a TDMA cellular phone worked on any TDMA network and that the cellular phone user determined which network the cellular phone used for service.


author: WETTICK JR., A.J.,

text:
    Apple v. Ford Motor Co.

      C.P. of Allegheny County,
    no. GD02-13860.

      Thomas E. Crenney, for plaintiffs.

      Nancy R. Winschel, for defendant.
    C. Peter Hitson, for additional defendant.
    November 18, 2004
   WETTICK JR., A.J.,

Ford’s motion for partial summary judgment is the subject of this opinion and order of court.

Plaintiffs are Michigan residents. In December 2001, they traveled from their home in Michigan to visit relatives in Pennsylvania. They were driving a 2000 Mercury that they had leased in Michigan. The vehicle was titled and garaged in Michigan and insured under a motor vehicle policy issued in Michigan under Michigan law. Ford is a Delaware corporation with its principal place of business in Michigan.

While in route to visit relatives in eastern Pennsylvania, plaintiffs were involved in a one-vehicle accident which occurred in Clarion County, Pennsylvania. Ms. Apple was seriously injured.

Initially, she received treatment in Pittsburgh. After five weeks, she was transferred to a Michigan hospital where she was treated for approximately three months. It appears that through Michigan insurance, plaintiffs have paid for Ms. Apple’s medical treatment in Pennsylvania.

In this lawsuit, plaintiffs have raised claims based on theories that the vehicle’s door retention and safety restraint systems were not crashworthy. Plaintiffs seek compensatory and punitive damages.

Under Michigan legislation, punitive damages designed to punish or deter misconduct cannot be recovered. It appears that the purpose of the legislation is to protect Michigan manufacturers from excessive financial liabilities, to promote their financial stability, and to encourage manufacturers in states that permit punitive damages to relocate to Michigan. In re Air Crash Disaster Near Chicago, Ill., 644 F.2d 594 (7th Cir. 1981); In re Disaster at Detroit Metro Airport, 750 F. Supp. 793 (E.D. Mich. 1989).

Also under Michigan legislation, in a product liability action the total amount of damages for noneconomic loss (in the absence of death or permanent loss of a vital bodily function) shall not exceed $280,000. According to Ford’s brief, the purpose of this statutory limitation is to encourage the manufacture and distribution of products in Michigan by protecting from large damage awards those Michigan businesses that place products into the stream of commerce.

Through its motion for partial summary judgment, Ford seeks a ruling that this litigation is governed by Michigan law. Consequently, I should dismiss plaintiffs’ punitive damage claim and restrict recovery for noneconomic loss to $280,000.

I.

Pennsylvania has a public policy that punitive damages should be awarded against manufacturers of products that are expected to enter Pennsylvania if it is established that the manufacturers know that their products are defective and dangerous. The purpose of this public policy is to protect Pennsylvania residents and visitors to the state by deterring manufacturers from manufacturing products which may enter Pennsylvania that are defective and dangerous. The policy is most applicable to products, such as motor vehicles, that, if unsafe, are likely to injure residents and visitors to the state who did not select, and are not using the product. Pennsylvania’s public policy is equally furthered by awarding punitive damages to the plaintiff who is a Pennsylvania resident and to the plaintiff who is a resident of another state. Furthermore, Pennsylvania’s public policy would be thwarted by applying the public policy of another state that seeks to encourage manufacturers to leave Pennsylvania as long as Pennsylvania follows its policy of awarding punitive damages. Thus, the punitive damage claim will be governed by Pennsylvania law.

II.

I next consider whether this court should apply Pennsylvania law, which provides full compensation to victims of tortious conduct, or Michigan law which caps recovery for noneconomic loss at $280,000.

Defendant contends that where both the injured party and the defendant are residents of a state with a $280,000 maximum for recovery of noneconomic damages, the policies of that state are significant. They overshadow Pennsylvania’s interests in encouraging the production of safe automobiles by fully compensating any party injured by an unsafe product for his or her actual losses.

In determining whether to apply Pennsylvania law awarding full compensation or Michigan law capping recovery for noneconomic loss at $280,000,1 initially consider defendant’s argument that there is no true conflict. I disagree. A purpose for Pennsylvania law awarding full compensation to persons injured by defective products is to encourage manufacturers to design, manufacture, and sell only products which are safe. These policies conflict with Michigan’s policy of capping damages in order to encourage the manufacture of products within Michigan.

In tort litigation, the Pennsylvania courts ordinarily apply the law of the place where the injury occurred. If the injury occurred in Pennsylvania, Pennsylvania will apply its own law: Laconis v. Burlington County Bridge Commission, 400 Pa. Super. 483, 583 A.2d 1218 (1990). If the injury occurred out of state, Pennsylvania will apply the law of that state even if the law is detrimental to a Pennsylvania resident suing in Pennsylvania. Cipolla v. Shaposka, 439 Pa. 563,267 A.2d 854 (1970). The only exception appears to be where the state in which the injury occurred has a lack of interest in the measure of damages to be recovered. Griffith v. United Air Lines Inc., 416 Pa. 1, 203 A.2d 796 (1964).

In Miller v. Gay, 323 Pa. Super. 466, 470 A.2d 1353 (1983), a Delaware passenger sued the Pennsylvania driver of the same vehicle to recover damages for injuries suffered in a Delaware accident. The Superior Court affirmed the trial court’s dismissal of the case because of the Delaware Guest Statute. The Superior Court applied Delaware law because it found that there was no significant relationship to Pennsylvania to justify an exception to the rule of the Restatement that the law of the state of the injury applies unless some other state has a more significant relationship. The court distinguished Griffith on the ground that the relationship between the plaintiff and defendant was centered in Delaware. It stated that “certainty, predictability and uniformity of result will be aided by the application of Delaware law.” Id. at 472, 470 A.2d at 1356.

In Harsh v. Petroll, 840 A.2d 404 (Pa. Commw. 2003), the Commonwealth Court considered a fact situation very similar to the fact situation in this case. Three occupants of a Chevrolet were killed in an automobile accident in Pennsylvania. The estates of the deceased sued General Motors in Pennsylvania based on allegations that General Motors was negligent by failing to design and manufacture a crashworthy vehicle and that General Motors is strictly liable for injuries resulting from its design, manufacture, and assembly of this vehicle.

The three occupants who died in the accident were Virginia residents. The automobile had been purchased in Virginia. Each of the estates was opened in Virginia. General Motors requested the Pennsylvania trial court to apply Virginia law (which limited General Motors’ exposure); however, the trial court applied Pennsylvania law. The ruling was affirmed by the Commonwealth Court.

The Commonwealth Court cited with approval the reasoning of the lower court that the only relationship that ever existed between the parties arose out of the accident which occurred in Pennsylvania and that the law of the state where the death occurred is given great deference under section 175 of the Restatement (Second) of Conflicts of Law (which provides that in a wrongful death action the law of the state where the death occurred determines the rights and liabilities of the parties unless another state has a more significant relationship to the occurrence and to the party), 840 A.2d at 418. The Commonwealth Court also cited Laconis v. Burlington County Bridge Commission, supra, for the proposition that “the state where the injury occurred was to be given great deference.” Id.

The court rejected General Motors’ argument that Virginia had the most significant contacts to the plaintiff’s claim stating:

“Although GM wants Virginia law to apply so as to allow for an outcome in its favor, just because the Harsh family resided in Virginia, their Chevrolet Lumina was purchased in Virginia, one named plaintiff is a citizen of Virginia, and three of the plaintiffs opened up their estates in that state, those contacts are not sufficient to change the trial court’s determination because the accident and three deaths occurred in Pennsylvania.” Id. at 419.

The rulings of the Pennsylvania appellate courts, including the recent ruling of the Commonwealth Court in Harsh, are consistent with choice of law rules set forth in the Restatement (Second) of Conflicts of Law. Section 146 of the Restatement (Second) provides that in an action for personal injury, the local law of the state where the injury occurs determines the rights and liabilities of the parties unless, with respect to a particular issue, some other state has a more significant relationship under the principles stated in section 6 of the Restatement (Second). Comment c to section 146 provides that the likelihood “that some state other than where the injury occurred is the state of most significant relationship is greater in those relatively rare situations where, with respect to a particular issue, the state of injury bears little relation to the occurrence and the parties.” This comment states that a rule applying the local law of the state where the injury occurred “furthers the choice-of-law values of certainty, predictability and uniformity of result and, since the state where the injury occurred will usually be readily ascertainable, of ease in the determination and application of applicable law (see section 6).”

Comment e of section 146 addresses the situation where the conduct and injury occur in different states. It states that the law of the state of injury will usually be applied to determine most issues involving the tort. This comment further states that the law of the state of injury may not apply where the law of the state in which the conduct occurred is intended to punish the tort-feasor and, thus, to deter others from following the tort-feasor’s example. However, where the purpose to be achieved by a rule of tort law of the state in which the conduct occurred is not to deter, the comment states that the local law of the state where the injury occurred would seem to have a greater interest.

I recognize that comment e states that where the injured party resides in the state where the conduct occurred, there is greater likelihood that this state will be the state of most significant relationship. However, in the present case, even though plaintiffs resided in the state of the defendant’s principal place of business, no relationship occurred within Michigan. Defendant does not target Michigan purchasers and only a small percent of its sales are made to Michigan residents. Thus, it was fortuitous that the persons injured in Pennsylvania resided in the state where defendant had its principal place of business. As in Harsh, the only relationship that ever existed between the parties arose out of the accident which occurred in Pennsylvania.

In summary, in personal injury actions, the Pennsylvania courts, in the absence of exceptional circumstances (i.e., Griffith), apply the law of the state where the injury occurred. On the basis of this case law, I enter the following order of court:

ORDER

On November 18, 2004, it is hereby ordered that defendant’s motion for partial summary judgment is denied.

      . Pennsylvania also has an economic interest, which it actively promotes, of having out-of-state residents visit Pennsylvania. This interest is furthered by providing the same protections to its visitors that it provides to its residents.

      . While Harsh was governed by section 175 of the Restatement Second), the comments to section 175 are almost identical to the comments to section 146.


author: LESKINEN, J.,

text:
    Rockwell v. Crown American Financing Partnership L.P.
    C.P. of Fayette County,
    no. 1248 of 2002, G.D., 74 of 2003, G.D.

      William M. Radcliffe, for plaintiffs.

      Brian S. Kane, for defendants Crown American.

      George P. Kachulis, for defendants Gower.
    October 21, 2004
   LESKINEN, J.,

Before this court are two motions for summary judgment filed by each of the defendants, Crown American Financing Partnership L.P., and Crown American Properties L.P. (Crown) and Thomas Gower and Charles Gower, both individually and t/d/b/a Gower Trucking (Gower).

After full consideration of the record, applicable law, briefs and arguments of counsel, this court finds that genuine issues of material fact still exist; therefore this court denies both defendants’ motions for summary judgment.

BACKGROUND

This action arises out of a slip and fall that occurred on January 24,2001. Plaintiff, Wendell Rockwell, at the time of the fall, was employed as a service technician at Sears. When he arrived for work at Sears located at the Uniontown Mall on the day in question, plaintiff slipped on a patch of ice as he was exiting his vehicle. It is undisputed that the ice was the result of runoff from a downspout on a shed constructed by Sears in the parking lot of the Uniontown Mall. At the time of the fall, Crown, owners and managers of the Uniontown Mall, leased the premises in question to Sears, and contracted with Gower for snow and ice removal from the parking lot of the premises.

Plaintiffs filed a complaint against Crown on June 4, 2002, at number 1248 of2002. Thereafter, plaintiffs filed an amended complaint on October 25, 2002, against Crown at the same number. Plaintiffs also filed a complaint against Gower on March 20, 2003, at number 74 of 2003. The two cases were consolidated by order of court dated June 20, 2003.

On February 26,2004, Crown filed their motion for summary judgment, and on March 29, 2004, Gower filed their motion for summary judgment in which they raise the same facts and arguments set forth in Crown’s motion. Oral argument on the motions took place before this court on June 24, 2004. Thereafter, on July 12,2004, Gower filed a supplemental motion for summary judgment to which they attached a copy of the contract between Crown and Gower for snow and ice removal.

DISCUSSION

The purpose of the summary judgment rule is to eliminate cases before trial where a party cannot make out a claim or a defense after relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). (Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000)).

Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Davis v. Resources for Human Development Inc., 770 A.2d 353 (Pa. Super. 2001).

If there are no material issues of fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992), allocatur denied, 532 Pa. 663, 616 A.2d 985 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001), allocatur denied, 568 Pa. 624, 793 A.2d 909 (2002).

The trial court must confine its inquiry when confronted with a motion for summary judgment to the question of whether or not a material factual dispute exists. Township of Bensalem v. Moore, 152 Pa. Commw. 540, 620 A.2d 76 (1993). For summary judgment purposes, a material fact is one that directly affects the outcome of the case. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000). “Thus, the overall purpose of a motion for summary judgment is to dispose of those cases in which there exists no factual issue to be decided at trial.” Harris by Harris v. Hanberry, 149 Pa. Commw. 300, 302, 613 A.2d 101, 102 (1992).

In their motion, Crown argues that plaintiffs have not met their burden to show that Crown owed a duty to plaintiff and/or breached said duty in regard to the existence of ice as a result of the downspout runoff, as such was an artificial condition which was not created by Crown, nor was Crown put on notice of such a condition.

“The duty of a possessor of land toward a third party entering the land depends upon whether the entrant is a trespasser, licensee, or invitee.” Updyke v. BP Oil Co., 717 A.2d 546, 549 (Pa. Super. 1998).

It is clear that plaintiff in the case at bar was not a trespasser, as defined by the Restatement (Second) of Torts, “a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” Restatement (Second) of Torts 329.

Plaintiff would more correctly fall into one of the latter two categories. “A licensee is a person who is privileged to enter or remain on the land only by virtue of the possessor’s consent.” Restatement (Second) of Torts 330. “A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.” Restatement (Second) of Torts 332.

In either case, the possessor of land only owes a duty to the third party entering the land if, and only if, the possessor had notice of the dangerous condition. The knowledge or notice of a defect or danger which is necessary in order to impose liability for negligence need not be actual, but can be established constructively.

“A person is charged with having constructive notice when he has knowledge of facts putting him upon inquiry. Once the duty to inquire is raised, the party is deemed to have such knowledge as he would have acquired by the exercise of ordinary intelligence and understanding.” Felton by Felton v. Spratley, 433 Pa. Super. 474, 483, 640 A.2d 1358, 1362 (1994). (emphasis in original)

The question whether a landowner had constructive notice of a dangerous condition and thus should have known of the defect is a question of fact. PennDOT v. Patton, 546 Pa. 562, 568, 686 A.2d 1302, 1305 (1997). As such, it is a question for the jury, and may be decided by the court only when reasonable minds could not differ as to the conclusion. Carrender v. Fitterer, 503 Pa. 178, 185-86, 469 A.2d 120, 124 (1983). If there is any dispute created by the evidence, the court is not permitted to decide the issue. Patton at 568, 686 A.2d at 1305.

The question of constructive notice is a major issue in this case, and the parties cited conflicting evidence on the issue. It is not the function of the court ruling on motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Commonwealth, Pennsylvania Securities Commission, 134 Pa. Commw. 494, 579 A.2d 1358 (1990). This is not a question to be decided by the court, but should be submitted to the jury. Therefore, Crown’s motion for summary judgment is denied.

In Gower’s motion, in addition to adopting the arguments of Crown, they argue that they owed no duty to plaintiff as Gower neither owned nor possessed the premises in question. Gower then correctly cites the elements for a cause of action for negligence:

“A viable cause of action for negligence must demonstrate only four elements: (1) a duty or obligation recognized by the law that requires an actor to conform his actions to a standard of conduct for the protection of others against unreasonable risks; (2) failure on the part of the defendant to conform to that standard of conduct, i.e., a breach of duty; (3) a reasonably close causal connection between the breach of duty and the injury sustained; and (4) actual loss or damages that result from the breach.” Gutteridge v. A.P. Green Services Inc., 804 A.2d 643, 654 (Pa. Super. 2002).

In this case, Gower’s duty arises as a result of the contractual obligation for snow removal and salting of the premises owned by Crown. Gower argues that plaintiffs have not introduced any evidence to suggest that Gower was obligated to do anything other than remove the “natural” accumulation of snow and ice. However, an inspection of the contract between Crown and Gower reveals that the contract does not use the word “natural.” The contract provides: “When necessary, salt or other similar and acceptable anti-skid material (cinders and like materials are not acceptable), shall be applied regardless of snow accumulation to prevent icy conditions at all entrance/exits and cruising lanes.” Gower’s supplemental motion for summary judgment, exhibit A. Furthermore, an amendment to the contract was completed on December 26, 2000, approximately one month before plaintiff’s fall, to include in the above referenced paragraph, “Salting Of Parking Spaces Included.” Id.

In light of the contractual obligations of Gower highlighted above, this court finds no merit to Gower’s argument that there is no evidence of a duty owed by Gower. Persons expected to use the paved areas subject to the snow and ice removal contract could certainly be considered “third-party beneficiaries” who were entitled to share the benefits negotiated into the contract. Again, taking into consideration the standard for summary judgment, this court finds conflicting evidence on material facts that are at issue. Thus this court denies Gower’s motion for summary judgment.

Wherefore, this court enters the following orders:

ORDER

And now, October 21, 2004, upon consideration of the motion for summary judgment filed on behalf of defendant, Crown American Financing Partnership L.P., and Crown American Properties L.P., and upon further consideration of applicable law, and the briefs and arguments of counsel, it is hereby ordered and decreed that defendant’s motion for summary judgment is denied.

ORDER

And now, October 21, 2004, upon consideration of the motion for summary judgment filed on behalf of defendant, Thomas Gower and Charles Gower, both individually and t/d/b/a Gower Trucking, and upon further consideration of applicable law, and the briefs and arguments of counsel, it is hereby ordered and decreed that defendant’s motion for summary judgment is denied.

      . “A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger....” Sharp v. Luksa, 440 Pa. 125, 129, 269 A.2d 659, 661 (1970) (emphasis in original), citing Restatement (Second) of Torts 342.
      “A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them.” Martino v. Great Atlantic & Pacific Tea Company, 419 Pa. 229, 233, 213 A.2d 608, 610 (1965), citing Restatement (Second) of Torts 343.