author: EVANS, J.,

text:
    Atwood v. Power Systems Electric Inc.

      Phinorice J. Boldin, for plaintiff.

      Ronald H. Pollock, for defendants Power Systems Electric Inc. and Hoover.

      Michael W. Wagman, for defendant Landvator.
    December 12, 2005
   EVANS, J.,

After a three-day trial in August 2005, the jury in this claim for personal injuries arising out of a motor vehicle accident returned a verdict in favor of plaintiff Michael J. Atwood and against defendants Tina Landvater and Mervin Hoover. Fault for the accident was attributed as follows: 50 percent to defendant Landvater, 25 percent to defendant Hoover, and 25 percent to plaintiff Michael Atwood. Following the verdict, defendants Landvater and Hoover filed timely post-trial motions. Defendant Landvater requests a new trial on all issues, or alternatively, on damages only. Defendant Hoover seeks a new trial on damages. Defendants raise the following post-trial issues:

(1) whether the court erred in permitting plaintiff’s medical expert to testify concerning prior medical reports and records because he was “simply a conduit or transmitter” of opinions and conclusions in response to questions from counsel;

(2) whether the court erred in its negligence charge by not including a skidding instruction; and

(3) whether the court erred in not including the word “psychiatric” in its charge on plaintiff’s duty to mitigate damages.

After a review of the entire record, as well as the briefs submitted on behalf of the parties, the court finds the defendants’ assignments of error to be without merit, and therefore the post-trial motions are denied.

1. THE TESTIMONY OF PLAINTIFF’S MEDICAL EXPERT DR. BONG LEE

First, defendant Hoover seeks post-trial relief claiming that the court erred in permitting certain testimony from plaintiff’s medical expert, Dr. Bong Lee. Specifically, defendant Hoover maintains that the court should have ex-eluded portions of the videotaped “hearsay testimony of Dr. Lee who merely acted as a conduit or transmitter of the testimony of Drs. Jenkins, Eyerman, and Schultz to corroborate and bolster his own testimony at trial.”

Under Pennsylvania law, “medical experts are permitted to express opinions which are based, in part, upon reports which are not in evidence, but which are customarily relied upon by experts in the profession.” Commonwealth v. Thomas, 444 Pa. 436, 445, 282 A.2d 693, 698 (1971); Cooper v. Burns, 376 Pa. Super. 276, 286, 545 A.2d 935, 940 (1988). This has become an exception to the hearsay rule, both under Pennsylvania common law and under Pa.R.E. 803(4).

Courts “recognize that a physician will often base his or her diagnosis on information obtained through other sources such as statements from patients, nurses’ reports, hospital records and laboratory tests. The fact that experts reasonably and regularly rely on this type of information merely to practice their profession lends strong indicia of reliability to [the] source material, when it is presented through a qualified expert’s eyes.” Woodward v. Chatterjee, 827 A.2d 433, 444 (Pa. Super. 2003). (citation omitted) As the Superior Court stated in Primavera v. Celotex Corp., 415 Pa. Super. 41, 52, 608 A.2d 515, 521 (1992), appeal denied, 533 Pa. 641, 622 A.2d 1374 (1993), expert testimony should be permitted, where “the expert uses several sources to arrive at his or her opinion, and has noted the reasonable and ordinary reliance on similar sources by experts in the field and has coupled this reliance with personal observation, knowledge and experience....” Therefore, an expert will be permitted to testify as to the content of another’s opinion when he brings it to bear on his own expertise and judgment. Id.

In the present case, Dr. Lee conducted an examination and evaluation of plaintiff Atwood and formed certain opinions which he testified to at the trial of this matter. As part of his evaluation, Dr. Lee asked plaintiff about his medical history and also obtained historical information about Mr. Atwood from his review of records relating to plaintiff’s prior medical treatment. Dr. Lee testified several times that he customarily relies on the reports of other doctors and that he did so in this case when evaluating plaintiff Atwood. (See transcript of Dr. Lee’s deposition at pp. 19, 30, 90.) His testimony establishes that, contrary to the defendant’s assertion, he was not blindly reciting the words of others as a mere conduit, but rather, he relied upon prior treatment records, information provided by the plaintiff, and his own evaluation of the plaintiff in reaching his opinions. As the record reflects that Dr. Lee considered these documents in the formulation of his opinions, we find he was properly permitted to testify regarding their contents. See e.g., Carroll v. Avallone, 869 A.2d 522, 528 (Pa. Super. 2005).

2. THE JURY INSTRUCTION AS TO LANDVATER’S NEGLIGENCE

Defendant Tina Landvater requests a new trial based upon the court’s failure to read the following proposed charge to the jury:

“Plaintiffs have the burden of proving negligence on the part of Tina Landvater and the mere fact that her vehicle skidded, without more, does not establish negligence. Plaintiffs must demonstrate by a preponderance of the evidence that the skid occurred as the result of some improper operation of the car by Tina. Kuhn v. Michael, 283 Pa. Super. 101, 106, 423 A.2d 735, 738, (1980). If after viewing all of the evidence relating to Tina Landvater in light of the law as I have given it to you, you conclude that Tina was not negligent, then as to her the accident was unavoidable and plaintiff may not recover from her.”

A review of the evidence, as well as the jury instructions actually given by the court, reveal that the instructions were fully adequate to assure that defendant Landvater could only be found liable if the jury determined that she was (a) negligent and (b) that her negligence was a factual cause of the plaintiff’s harm. The instructions properly framed the issues for the jury and we find no error in failing to give the foregoing charge.

In their complaint, plaintiffs claimed that defendant Landvater negligently lost control of her vehicle, thereby resulting in the collision. Plaintiffs asserted that defendant Landvater was negligent for driving at an excessive rate of speed under conditions of darkness, ice and snow; and for driving over the speed limit in those conditions. At trial, the testimony established that the speed limit was 55 miles per hour. At the time of the accident, however, there were ice patches and snow along the road. (N.T. 21.) The testimony established that defendant Landvater was aware that there was ice and snow on the road. (N.T. 107.)

Plaintiff Atwood testified that he was traveling 45 to 50 miles per hour, which he felt was a safe speed given the conditions. (N.T. 21.) Plaintiff Atwood and an independent witness, Allen Smith, testified that Ms. Landvater passed them traveling at 60 to 65 miles per hour. (N.T. 24, 65-66.) Thereafter, Mr. Hoover decided to pass Mr. Atwood. Plaintiff estimated Mr. Hoover’s speed at 55 to 60 miles per hour. (N.T. 23.) Shortly after the Hoover vehicle passed Mr. Atwood, Ms. Landvater hit a patch of ice and lost control of her vehicle. Mr. Hoover hit her and lost control of his vehicle. (N.T. 16-20.) Mr. Atwood was about 50 to 100 feet behind the Landvater and Hoover vehicles when they lost control and he ultimately collided with the Hoover vehicle. (N.T. 24.)

The court’s charge on liability covered the standard issues of burden of proof, negligence and factual causation. In addition, the court advised the jury that the “mere happening of an accident does not establish that one of the patties was negligent, but rather, the plaintiffs have the burden of proving their claims.” (N.T. 117.) The court defined the concepts of negligence and ordinary care, noting that “what constitutes ordinary care varies according to the particular circumstances and conditions existing then and there.” (N.T. 119.) The court also instructed the jury regarding statutory violations under the Pennsylvania Motor Vehicle Code, including assured clear distance ahead and driving in excess of the posted speed limit. (N.T. 120.)

The evidence submitted at trial, while disputed in some respects, was sufficient to support a finding of negligence on the part of Ms. Landvater for failing to use reasonable care and/or for operating her vehicle in excess of the posted speed limit. Under the circumstances, there was no error in our refusal to read the proposed skidding charge. Moreover, we find that defendant’s reliance on cases wherein plaintiffs alleged that a driver skidded over the center line is inapplicable. See e.g., Kuhn v. Michael, 283 Pa. Super. 101, 423 A.2d 735 (1980). In such cases, the concern is that mere skidding could create an unrelenting negligence per se standard solely because the defendant skids onto the wrong side of the road, with no opportunity to explain that the skidding was unavoidable and that crossing the center line was not the result of negligence. In those cases, the burden is shifted to the defendant to explain how the skid was unavoidable. Kenworthy v. Burghart, 241 Pa. Super. 267, 361 A.2d 335 (1976). This scenario is not at issue in the present case.

The pertinent issue, as properly covered by the court’s instructions, was whether defendant Landvater was driving too fast, whether this constituted negligence and whether it caused harm. Moreover, with respect to the statutory violations, the jury was specifically charged that even if it found Ms. Landvater was exceeding the speed limit at the time of the accident, they were still required to determine whether this negligence was a factual cause of the plaintiff’s injury. (N.T. 120-21.) Thus, in reviewing the charge as a whole, we find that there was no prejudicial error.

3. THE JURY INSTRUCTION AS TO MITIGATION OF DAMAGES

Defendant Landvater contends that the court erred in failing to insert the word “psychiatric” in front of “medical care” in its instruction on mitigation of damages. We find the argument to be without merit. The evidence in this case established that Mr. Atwood did not undergo certain forms of medical treatment that were suggested by his treating physician and/or consulting physicians retained by parties adverse to him. The possible medical treatment consisted of epidural nerve blocks and surgery as well as psychiatric evaluation and treatment, as suggested by Dr. Krettek, a consulting physician who examined Mr. Atwood on behalf of his employer. (N.T. 31.)

At trial, defendants put before the jury Dr. Krettek’s opinion that Mr. Atwood’s pain was psychological and not physical. Dr. Krettek concluded that Mr. Atwood suffered from “reactive depression” and that this depression was the source of his disability. Dr. Krettek also opined that the only future medical therapy recommended was that of an evaluation by a psychiatrist for pain control. He wrote that Mr. Atwood should seek medical/psychiatric evaluation and treatment.

With respect to mitigation, the court charged the jury that “both defendants in this action contend that had plaintiff Michael Atwood sought certain medical care the damage sustained by plaintiff would have been reduced or avoided.” (N.T. 134.) The court then went on to explain, at length, the determinations the jury might have to make concerning whether this contention was warranted; whether such “medical care or treatment” would have a reasonable chance of improving Mi’. Atwood’s condition; whether it was reasonable to seek such treatment; the risks associated with such treatment; and the probability that such treatment would succeed. (N.T. 134-35.)

Defendant Landvater contends that because the charge referred to “medical treatment” and not “psychiatric medical treatment” the jury could have reasonably interpreted the charge “only to require Michael Atwood to seek traditional physical medical treatment for his injuries.” We do not agree. Based upon the evidence presented and considering the entirety of the charge, there is no basis to conclude that the jury did not understand the instruction, was confused thereby and/or otherwise misinterpreted the charge. There is no reasonable basis, nor does defendant Landvater disclose any, to conclude that the jury would not understand, based upon the evidence presented, that the words “medical care” encompassed psychiatric and/or physical medical care.

The court’s charge was taken virtually verbatim from Pa.S.S.J.I. (Civ.) 6.35 (second alternative) which states in pertinent part: “The defendant in this action contends that had the plaintiff [sought medical care] [not delayed in seeking medical care] [followed the doctor’s advice], the damage sustained by the plaintiff would have been reduced or avoided. . . .” This instruction in no way requires or directs the court to specify the form of medical care at issue in the case. Thus, the instruction as given was best suited to perform the function of allowing the jury to consider all forms of medical treatment. Defendants have failed to establish that the juiy was confused or misled by this court’s instructions and/or that that court’s failure to use the word “psychiatric” resulted in prejudicial error. Clack v. PennDOT, 710 A.2d 148, 153 (Pa. Commw. 1998). Accordingly, we enter the following:

ORDER

AND NOW, December 12, 2005, upon consideration of the post-trial motions filed by defendants Tina Landvater, Mervin Hoover and Power Systems Electric Inc., plaintiff’s response thereto and for the reasons set forth in the accompanying opinion, it is hereby ordered that the defendants’ post-trial motions, including their requests for a new trial, are denied.

      . At the time of the accident, Mr. Hoover was operating a vehicle owned by his employer, Power Systems Electric Inc., and was in the course and scope of his employment. Accordingly, defendant Power Systems Electric was held vicariously liable for the negligent acts of Mr. Hoover.

      . Pa.R.E. 803(4) Statements for Purposes of Medica! Diagnosis or Treatment. A statement made for purposes of medical treatment, or medical diagnosis in contemplation of treatment, and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to treatment, or diagnosis in contemplation of treatment.

      . We note that the court’s charge regarding statutory violations was in accordance with Pa.S.S.J.I. (Civ.) 3.30 — Negligence per se— Violation of statute. Defendant Landvater did not request an instruction pursuant to Pa.S.S.J.I. (Civ.) 3.31 — Evidence of negligence — Violation of statute (with exculpatory explanation).


source: Caselaw Access Project

author: KISTLER, J,

license: Public Domain

text:
    Commonwealth v. Hanslovan

      Nathan L. Boob, for Commonwealth.

      Roy K. Lisko, for defendant.
    December 1, 2005
   KISTLER, J,

Presently before this court is Ronald Hanslovan’s (defendant) motion to suppress regarding two search warrants issued to search his business. A hearing was held on November 8, 2005, to argue the legality of these warrants.

FACTUAL BACKGROUND

On September 17, 2004, Renae Cauger went to Tanfastique, a tanning salon in State College, Pennsylvania. Tanfastique is owned and operated by defendant. While in tanning room no. 7, Ms. Cauger noticed a hole in the wall. The alleged hole made room no. 7 visible from defendant’s office. Afterwards, Ms. Cauger notified two Tanfastique employees, Lauren Sturniolo and Alexis Penezic. These employees informed Ms. Cauger that defendant would often go into his office and lock the door. (N.T. at 26-27.) They also stated that employees always had to knock before entering defendant’s office. Ms. Sturniolo later entered defendant’s office on a day he was not working. (N.T. at 25-27.) She noticed a bulletin board covering the alleged peephole. (N.T. at 25-29.) She testified at the preliminary hearing that she had her sister get into the tanning bed in room no. 7. (N.T. at 29.) Ms. Sturniolo further testified that the hole gave a clear view of a patron’s genital area while the patron was in the tanning bed. (N.T. at 29.) Ms. Penezic also observed the bulletin board and alleged peephole. (N.T. at 31.) Ms. Penezic stated defendant’s office contained a computer used for scheduling appointments.

On February 3, 2005, the State College Police served a search warrant on defendant at Tanfastique. The police then searched Tanfastique and seized defendant’s computer and took photographs of the bulletin board and alleged peephole. The computer’s hard drive was later “imaged” onto the police’s computer, but no files were viewed. On March 8, 2005, after obtaining the second warrant, the State College Police viewed the contents of the hard drive for incriminating evidence. No such evidence was found on the hard drive.

Defendant argues the February search warrant was illegal because (1) it did not set forth sufficient probable cause to believe the item seized contained information subject to seizure, (2) the affidavit of probable cause did not supply underlying circumstances upon which the informants based their conclusions that the items sought were located in Tanfastique, (3) the warrant offered no probable cause to believe the informants were reliable, (4) the affidavit is misleading in that it does not set forth that Ms. Cauger was in the tanning booth in September 2004, yet she did not apply for the warrant until February 2005, and (5) the warrant was issued for an improper purpose, namely “Enforcement action to deter Flanslovan’s ability to victimize other unsuspecting customers in necessary.”

Defendant further argues the March search warrant was illegal because (1) it did not set forth sufficient probable cause to believe the item seized contained information subject to seizure, (2) the affidavit of probable cause did not supply underlying circumstances upon which the informants based their conclusions that the items sought were located in the computer, (3) the warrant offered no probable cause to believe the informants were reliable, and (4) the search warrant contained a material misstatement of fact in that it states Ms. Cauger did not return to the salon, when she actually returned 28 times after the incident.

DISCUSSION

The Fourth Amendment of the United States Constitution “operates to protect privacy interests by prohibiting non-consensual searches without a warrant. Issuance of a warrant, in turn, requires probable cause.” Commonwealth v. Tobin, 828 A.2d 415, 419 (Pa. Commw. 2003) (citing Veronia School District 47J v. Acton, 515 U.S. 646, 653, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)). A general search warrant permits law enforcement officials to “search for the fruits or instrumentalities of a crime, is issued by a court and is attendant to suspected criminal activity.” Id. (citing Camara v. Municipal Court of the City & County of San Francisco, 387 U.S. 523, 87 S.Ct., 18 L.Ed.2d 930 (1967). “A magistrate is to make a practical commonsense decision whether, given all the circumstances set forth in the affidavit... , there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Jones, 542 Pa. 418, 424, 668 A.2d 114, 116-17(1995). “Under normal circumstances, the statement of a victim of a crime would be sufficient to create the probable cause necessary for the issuance of a search warrant.” Commonwealth v. Mamon, 449 Pa. 249, 258, 297 A.2d 471, 477 (1972).

When a witness has personally observed a crime and voluntarily reports the observation, the trustworthiness of such a person may be presumed. Commonwealth v. Weidenmoyer, 518 Pa. 2, 9, 539 A.2d 1291, 1295 (1988).

A valid warrant authorizing the seizure of a personal computer also authorizes the reproduction of any documents stored within the computer. Commonwealth v. McEnany, 446 Pa. Super. 609, 621, 667 A.2d 1143, 1149 (1995); Commonwealth v. Copenhefer, 526 Pa. 555, 561, 587 A.2d 1353, 1356 (1991).

In the current case, this court believes the February search warrant was properly issued. First, there was sufficient probable cause set forth in the affidavit for this court to find the area contained items subject to seizure. Here, the police seized defendant’s computer. The computer is used to operate his business. Specifically, the computer is used to operate the tanning beds, and to maintain customers’ names and their account status. The computer also documents individual tanning sessions. This court believes the computer could give the police some insight as to whether defendant was scheduling certain women to tan in room no. 7. This information would not be attainable without seizing the information on the computer, as there is no evidence suggesting defendant kept hard copies of these records. It was possible the computer may also have contained voyeuristic computer images of photographs taken from defendant’s office to room no. 7 via the alleged peephole. As such, this court believes the computer is a fruit or instrumentality of the invasion of privacy charge.

Second, there was sufficient evidence from the informants to suggest the items sought were located in Tanfastique. The two Tanfastique employees consistently observed the computer in defendant’s office. Defendant’s office is located in Tanfastique. As such, the observation of the two employees is sufficient evidence to suggest the computer was at Tanfastique.

Third, this court believes the search warrant offers a sufficient indicia of reliability on behalf of the informants. Ms. Cauger personally viewed the alleged peephole. This information was later corroborated by the two Tanfastique employees. This court believes observations of the same alleged peephole by three different, and known, informants is sufficient to suggest their information is reliable.

Fourth, this court believes it is not essential that Ms. Cauger did not report the incident until February. A delay in reporting such an incident does not nullify the fact that Ms. Cauger and the two Tanfastique employees viewed an alleged peephole. The purpose of the search warrant was not to determine whether defendant was continuously viewing patrons in room no. 7; rather, it was intended to help the police gather information in order to build a case for invasion of privacy against defendant. The search warrant in the current case helped the police properly gain access to Tanfastique in order to corroborate the observations of Ms. Cauger and the two employees.

Finally, this court believes the warrant was issued for a proper purpose. For an invasion of privacy investigation, the police need to locate items aiding the suspect in spying on the victim or victims. The purpose in locating these items is to help build a case against the suspect. The overall goal is to prevent the suspect from invading subsequent persons’ privacy. Here, access to the business could help the police determine the truthfulness of Ms. Cauger’s claim by observing the alleged peephole, as well as gaining access to the computer to view defendant’s scheduling records. This evidence could aid the Commonwealth in prosecuting defendant, and preventing him from spying on further patrons.

With respect to the March search warrant and affidavit, this court also finds it was properly issued. First, this court believes the affidavit contained sufficient information to subject the computer to seizure. This court addressed the issue earlier in this opinion. Defendant used the computer to manage customer accounts and schedule tanning sessions. The computer could have given the police some insight on whether defendant was scheduling certain women to tan in room no. 7. It was also possible the computer could have contained voyeuristic computer images. Access to the computer’s contents could not be achieved without seizing the computer. As such, this court believes the computer is a fruit or instrumentality of the invasion of privacy charge.

Second, this court believes the computer was the appropriate location to find the desired information. As stated above, there is no evidence suggesting defendant kept hard copies of customer names or account status. Today’s businesses are reliant on computers to keep and maintain data. As such, Tanfastique’s computer is the logical place to find the desired information.

Third, this court believes the search warrant offers sufficient indicia of reliability on behalf of the informants. Ms. Cauger personally viewed the alleged peephole. This information was later corroborated by the observations of the two employees. This court believes observations of the same alleged peephole by three different, and known, informants is sufficient evidence to suggest the information is reliable.

Finally, this court believes the fact that Ms. Cauger denied returning to Tanfastique in the affidavit is an insufficient material omission to sour the search warrant as a whole. Whether Ms. Cauger returned to Tanfastique does not negate that there is an alleged peephole in defendant’s office. This court believes this issue addresses Ms. Cauger’s credibility as a witness, not whether defendant was spying on his patrons.

ORDER

And now, December 1, 2005, defendant’s motion to suppress regarding search warrant no. 2005-01653A and search warrant no. 2005-01653B is hereby denied.


author: Grine, J,

text:
    Commonwealth v. Kane

      Lance T. Marshall, for Commonwealth.

      Craig P. Miller, for defendant.
    November 14, 2005
   Grine, J,

Defendant, Richard A. Kane, pled guilty, pursuant to a plea agreement, to theft by unlawful taking and forgery following a sentencing hearing held on June 9,2005. The original criminal information filed in this case included 23 counts of theft by unlawful taking or disposition (18 Pa.C.S. §3921(a)), 24 counts of receiving stolen property (18 Pa.C.S. §3925(a)), one count of theft by deception (18 Pa.C.S. §3922), two counts of forgery (18 Pa.C.S. §4101 (a)(2)), and two counts of access device fraud (18 Pa.C.S. §4106a(l)(iv)). The information was amended by the Commonwealth before sentencing to reflect the abovementioned plea agreement. This court sentenced defendant to a period of not less than three years nor more than six years in a state correctional institution and ordered the defendant to pay restitution in the amount of $166,409. By court order dated July 28,2005, this court’s previous sentencing order of June 9,2005, was amended, whereby defendant’s sentence was reduced to a period of not less than two years, nor more than four years, with the amount of restitution reaffirmed.

Defendant then filed his notice of appeal on August 22, 2005. This court filed an order pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure requesting a concise statement of matters complained of on appeal. Defendant filed his 1925(b) statement in a timely manner. Defendant’s statement includes an extensive list of matters complained of on appeal, which can be best summarized as follows:

“(1) The trial court erred or abused its discretion by sentencing defendant in the aggravated range without placing adequate reasons on the record.

“(2) The trial court erred or abused its discretion when sentencing defendant in the aggravated range by failing to consider appropriate information and making erroneous conclusions.”

This court will address each of defendant’s matters individually.

I. EXCESSIVE SENTENCE

Defendant was originally sentenced to a total period of incarceration of three to six years for the charges of theft by unlawful taking and forgery. The standard range for these offenses, given the lack of a previous criminal record and the offense gravity score of “eight,” was nine to 16 months. Citing, in large part, the betrayal of trust that occurred in the case, counsel for the Commonwealth asked for an aggravated range sentence of one and one-half years to three years.

Discretion is accorded to the sentencing judge, as he or she is in the best situation to weigh various factors, such as the nature of the crime, impact of crime on the victim(s), the defendant’s character, and any display of remorse, defiance, or indifference on the part of the defendant. Commonwealth v. Duffy, 341 Pa. Super. 217, 491 A.2d 230 (1985). Further, where there is an indication that the sentencing court understood the suggested sentencing range, the “court may deviate from the sentencing guidelines to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offenses as it relates to the impact on the life of the victim and the community.” Commonwealth v. Tirado, 870 A.2d 362, 366 (Pa. Super. 2005). “[Sjimply stated, the sentencing guidelines are merely advisory and the sentencing court may sentence a defendant outside the guidelines as long as the sentencing court places its reasons for doing so on the record.” Id. (emphasis added)

At the time of sentencing, this court pointed to many factors on the record which led to its imposition of a sentence above the aggravated range. First and foremost, this court imposed the original three to six year sentence as this was the minimum amount of confinement found consistent with the protection of the public, the gravity of the offense, and defendant’s rehabilitative needs. (Tr. 6/9/05, p. 25, ¶¶19-25.) In making this decision, the court examined and considered the pre-sentence investigative report, statements made by the victim prior to sentencing, statements by defendant’s counsel, the circumstances of the offense, and the defendant’s education, character, and background. (See Tr. 6/9/05, p.25, ¶25; p.26, ¶¶1-15.)

Investigations into defendant’s actions revealed that he used the victim’s name, John Imbt, and the name of the victim’s company, ABC Oil Co. Inc., to open a $100,000 line of credit, actually forging Mr. Imbt’s signature to do so. At the time this unauthorized account was discovered, the defendant had spent approximately $99,000 of the credit line. Additionally, defendant had opened two credit card accounts, both under the names of Mr. Imbt and the ABC Oil Co. Inc., with approximately $ 16,000 of charges between the two. Over an 18-month period, defendant routinely wrote himself or third-party vendors unauthorized company checks, exceeding $175,000, to pay for personal expenses. Finally, statements made by the victim at the sentencing hearing established that as a direct result of the defendant’s action, the victim lost his business, selling it in order to pay the debts defendant had incurred through his intentional and unjustifiable criminal conduct.

The court further addressed the defendant:

“I believe that your conduct cannot be excused, and that the victim did nothing to cause or facilitate the commission of the crime against him. There are no grounds intended to excuse or justify your conduct on that day. I believe you have not compensated the victim, nor do I consider it likely that you are ever going to be able to completely make restitution in this matter.” (Tr. 6/9/05, p. 26, ¶¶16-24.)

It is clear to this court that the reasons for sentencing defendant were unequivocally placed on the record. As such, this court did not err as a matter of law by sentencing the defendant outside the sentencing guidelines. See Commonwealth v. Tirado, 870 A.2d 362 (Pa. Super. 2005).

II. CONSIDERATIONS AND CONCLUSIONS

In the present case, defendant argues that the sentencing court erred or abused its discretion in the following ways: (1) in finding that defendant is unlikely to pay the full amount of restitution; (2) by not considering the possibility of probation; and (3) by imposing a term of state rather than county incarceration.

Before sentencing, this court heard testimony from John Imbt, owner of ABC Oil Co. Inc., who briefly explained the impact of the defendant’s behavior on himself, his employees, and his business. Mr. Baker, Mr. Imbf s attorney, best summarized the victim’s losses when stating, “[tjhree years ago you have a company that’s worth over half a million dollars, and now we are fighting so that Mr. [Imbt] (sic) doesn’t lose everything. He’s coming out of this with nothing. He is losing everything.” (Tr. 6/9/05, p, 15,¶¶13-17.)

This is simply not a case where the defendant can be ordered to pay restitution, and the victim will walk away made whole. Essentially, Mr. Imbt was victimized twice. Not only was he required to pay off the debt defendant had accrued to uphold his credit and reputation, Mr. Imbt was forced to sell his business in order to do so. Eventually defendant may be able to pay the monetary amount of restitution, but this repayment will not repair all of the damage unjustifiably inflicted upon Mr. Imbt.

Title 42 Pa.C.S. §9721 provides the various sentencing alternatives available to the sentencing court, which includes probation. See 42 Pa.C.S. §9721(a). Subsection (b) of that same section requires the court to impose confinement consistent with “the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and the community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. §9721(b).

This court did consider probation as an alternative when determining defendant’s sentence, as provided in the sentencing transcript:

“I have considered probation and rejected the same because I believe you knew or you should have known what you were doing was wrong, and that you could harm not only the owner of the company, but, apparently, all other individuals that have been associated with that company.” (Tr. 6/9/05, pp. 9-15.)

Finally, at the time of sentencing, a statement was provided explaining this court’s decision to impose a term of state rather than county incarceration. Again, the sentence imposed allowed for the minimum amount of confinement required for the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant. This court also considered statements made by the victim, statements by defendant’s counsel, the circumstances of the offense, defendant’s education, character, and background. As such, this court made proper considerations and conclusions when imposing defendant’s sentence.

For the foregoing reasons, this court respectfully finds that there has been no reversible error of law or abuse of discretion and remains satisfied that defendant was properly sentenced.


author: PICCIONE, J,

text:
    Duda v. Eichenlaub

      Norman Levine, for plaintiff.

      Allen Palmer, for defendant.
    October 24, 2005
   PICCIONE, J,

The plaintiff has appealed the order of court dated August 10, 2005 wherein the court denied appellant’s claim for past-due medical expenses.

This matter was before the court on June 7, 2005, for a de novo hearing. The issue before the court at that time was the responsibility of the defendant to reimburse the plaintiff for past-due medical bills that had accrued.

The parties were before the Domestic Relations Section of Lawrence County on April 18,2005. At this time, the plaintiff submitted four separate envelopes of medical bills dating back to the calendar year 1997 through the present. The conference officer found the plaintiff was aware of the policy of the Domestic Relations Section of Lawrence County as to submitting unpaid medical bills. The plaintiff did not present verification that the bills had been sent to the defendant or that she had met her initial $250 obligation. All bills prior to 2005 were not addressed but were filed in the Domestic Relations file to remain part of the record. The bills for the calendar year 2005 were returned, as plaintiff had not yet reached her initial $250 obligation. The conference officer found the bills prior to the year 2005 were not submitted in a timely fashion or in accordance with the procedures of the Domestic Relations Section of Lawrence County. The plaintiff timely filed a demand de novo and this case was before the court on June 7, 2005.

The policy of the Lawrence County Domestic Relations Section with regard to the submission of unpaid medical expenses is that the payee must first notify the defendant directly, by certified mail return receipt, that unpaid medical bills are outstanding. If the payor refuses to reimburse the payee, or make arrangements with the physician to pay, then the Domestic Relations Section may become involved. Prior to Domestic Relations becoming involved, the payee must submit to the Domestic Relations Section a copy of the certified mail label and a copy of the return receipt indicating to whom the notice was sent and who signed the notice, along with a copy of the cover letter itemizing said bills, and the actual bills themselves. Bills must be submitted to the Domestic Relations Section for collection within one year of the date of the service rendered. The Domestic Relations Section of Lawrence County implemented this policy in 1997.

The court found the plaintiff was informed of said policy by the Domestic Relations Section of Lawrence County. The plaintiff alleges she delivered to the defendant medical bills from years past, although the plaintiff did not produce a copy of the certified mail label or a copy of the return receipt. The plaintiff did not adhere to the Domestic Relations Section policy and provided no appropriate reason to the court justifying her failure to comply with said policy. The court is unable to determine with certainty whether the defendant was ever made aware of all outstanding bills.

In addition, the plaintiff’s submission to the Domestic Relations Section was untimely. The first time plaintiff placed the bills on record with the Domestic Relations Section was at the April 18, 2005 conference before the hearing officer. These bills contained unpaid items from 1997 and afterwards. It is the policy of Domestic Relations that bills must be submitted within one year from the date of service. The plaintiff’s request for payment on all bills not submitted to the defendant prior to the year 2005 was denied.

The plaintiff, in her statement of matters complained of, addresses the fact that the court uses the language “all previous orders not amended by, or in conflict with, the order of court of August 10, 2005 shall remain and continue in full force and effect.” Specifically, the plaintiff brings up the fact that in all previous orders is a paragraph that dictates that the defendant shall contribute to unpaid medical expenses. This paragraph should not be construed to mean that the plaintiff has an unlimited amount of time to submit unpaid medical bills for payment. While the defendant is required to contribute towards unpaid medical bills, this plaintiff must still adhere to the policy for submitting such bills as set forth by the Domestic Relations Section.

Additionally, the plaintiff makes a public policy argument that the defendant should not be allowed to circumvent his obligation to pay medical bills. Even if the plaintiff did not have a malicious intent or bad faith motive in not presenting the unpaid bills sooner, there is a public policy argument to be made that the plaintiff should not be allowed to hold onto bills and seek to collect after years of not properly making the defendant aware of their need to be paid. This is patently unfair and prejudicial to the defendant. The plaintiff must follow the procedures as set forth by the Domestic Relations Section of Lawrence County or forfeit her right to contribution toward the unpaid expenses.

For the reasons stated above, the plaintiff’s appeal is without merit and should be dismissed.

ORDER

And now, October 24,2005, the court having received a notice of appeal that plaintiff appeals the order of court dated August 10,2005, it is hereby ordered and decreed that the Domestic Relations Section of Lawrence County shall assemble the record and transmit the same to the prothonotary of the Superior Court as required by the applicable rules of appellate procedure.

The Domestic Relations Section of Lawrence County shall properly serve notice of this order and opinion upon counsel of record; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.