author: STEINBERG, J.,

text:
    Commonwealth v. Quinn

      C.P. of Lehigh County,
    No. CR-3417-2014

      V Paul Bernardino, for Commonwealth.

      John Waldron, for defendant.
    Jan. 2, 2015
   STEINBERG, J.,

The defendant, Courtney Quinn, is charged with Homicide by Vehicle, Involuntary Manslaughter, Recklessly Endangering Another Person (2 counts), and various traffic violations. It is alleged that on April 12, 2014, the defendant, while driving northbound in her 2011 Hyundai Elantra on State Route 145, fell asleep and crossed over into the southbound lane of traffic. Her actions caused a head-on collision with a Volkswagen Jetta operated by Jennifer Ebert. Ms. Ebert and her granddaughter, P.E., suffered serious injuries as a result of the collision, and Ms. Ebert succumbed to her injuries.

On October 17,2014, counsel for the defendant filed an “omnibus pretrial motion” seeking to suppress statements made by the defendant to both Pennsylvania State Police and Emergency Medical Personnel. During the hearings on these motions, which were held on October 28, 2014 and November 18, 2014, the Commonwealth presented the testimony of Christopher Fegley and Stephen Hall, paramedics with Cetronia Ambulance Corps., and Trooper Ryan Seiple and Trooper Jason Myers of the Pennsylvania State Police. Additionally, the Commonwealth introduced into evidence the waiver of rights and consent to search form signed by the defendant.

The evidence revealed that on April 12,2014, Paramedic Fegley was dispatched to a vehicle crash on State Route 145 at approximately 8:30 a.m., and upon his arrival, observed the defendant in her vehicle with heavy damage to the driver’s side. The defendant, who was trapped in the car, was administered 100 micrograms of Fentanyl to relieve her pain and anxiety. Following her extraction from her vehicle, she was placed in an ambulance, and transported to Lehigh Valley Hospital. While doing so, Paramedics Fegley and Hall, in the performance of their duties, asked the defendant some biographical information regarding her name, address, and date of birth, which she answered appropriately. She was also asked questions to determine her mental status in order to establish the nature of her illness or mechanism of injury. In that regard, Paramedic Fegley asked the defendant “what happened.” She responded that she worked late and “believes she may have fallen asleep while driving.” The defendant was given a second dose of Fentanyl in the ambulance for her pain.

Trooper Seiple also reported to the scene of the incident and briefly spoke to the defendant, who relayed that she did not recall what happened. Later that afternoon, he attempted to speak to the defendant at the hospital where her family members, including her step-father, were present, but she could not recall the events leading up to the collision. The defendant did, however, confirm her step-father’s explanation of her employment details prior to getting behind the wheel of her car.

On April 12, 2014, Trooper Myers was dispatched to Lehigh Valley Hospital to interview the defendant. Upon introducing himself, the defendant fell asleep, but awoke shortly thereafter. She then told him that she “had not slept in a while” and explained in more detail both her employment and school schedule. Following the interview, which lasted less than ninety minutes, Trooper Myers requested consent to search the defendant’s cell phone. The “waiver of rights and consent to search” form was read to her “verbatim” by Trooper Myers, after which the defendant acknowledged that she understood it, and then signed it.

During the interview, the defendant remembered very little, if anything, about the collision. She also fell asleep several times and complained of pain while Trooper Myers was present. Trooper Myers inquired about her condition, and was told by a nurse that the defendant would be okay. He departed the hospital without arresting the defendant, and did not do so until June 23, 2014.

On April 29, 2014, after the defendant was released from Lehigh Valley Hospital, Trooper Seiple spoke with her by phone. The defendant was unable to provide any details regarding the collision.

Discussion

The defendant seeks to suppress the statements she made to the paramedics who responded to the collision to assist the injured, and the Pennsylvania State Police who interviewed her both at the scene of the collision, and later at the hospital. She contends that her statements should be suppressed because: (1) she was not advised of her Miranda warnings prior to her statements; and (2) her statements were involuntary because of her physical and mental condition caused by the collision. It is also alleged that she was unable to voluntarily consent to a search of her cell phone for the same reasons.

A. Statements To Paramedics

Miranda warnings are only required in a custodial interrogation. Commonwealth v. Housman, 986 A.2d 822, 839 (Pa. 2009). Custodial interrogation has been defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of [] [her] freedom of action in any significant way.” Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999); see also Commonwealth v. Garvin, 50 A.3d 694, 698 (Pa. Super. 2012); Commonwealth v. Gonzalez, 979 A.2d 879, 887-888 (Pa. Super. 2009) quoting Miranda v. Arizona, 384 U.S. 436, 444 (1996). The United States Supreme Court has stated the “ultimate inquiry is...whether there [was] a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” Commonwealth v. Boczkowski, 846 A.2d 75, 90 (Pa. 2004) quoting Stansbury v. California, 511 U.S. 318, 322 (1994).

Here, the defendant was neither in custody nor was she subject to interrogation when she told the paramedics that she may have fallen asleep while behind the wheel of her vehicle. She was being treated, not interrogated, and the paramedics’ inquiries were not at the behest of law enforcement. Neither of the paramedics possessed the status of law enforcement for purposes of custodial interrogation. Their presence at the site of the collision was not to further a criminal investigation.

“The determination of whether statements were elicited at a custodial interrogation must be made in light of the totality of [the] circumstances involved, and the status of the questioner is only one of the relevant circumstances.” Commonwealth v. Heggins, 809 A.2d 908, 915 (Pa. Super. 2002)(collecting cases) quoting Commonwealth v. McGrath, 470 A.2d 487, 493 (Pa. 1983)(counselors at juvenile placement facility were providing treatment and were not the equivalent of law enforcement, and so Miranda did not apply.). See also People v. Jones, 565 N.Y.S.2d 262, 264-265 (1991)(statements made to an ambulance driver and nurse while providing treatment to defendant were admissible because a private person may acquire information to be used in a criminal investigation even where police would be constitutionally restrained.); People v. Esmail, 688 N.Y.S.2d 186, 188 (1999)(statements made to EMS workers were admissible.); State v. Newcomb, 679 S.E.2d 675, 695 (2009)(collecting cases)(statements to emergency medical services personnel while being treated, but overheard by deputy, were not the result of custodial interrogation.); Reinert v. Larkin, 211 F.Supp.2d 589, 600-601 (E.D. Pa. 2002) aff’d 379 F.3d 76, 86 (3d Cir. 2004)(statement to paramedic in presence of police officers was not the product of custodial interrogation); cf. McGrath, 470 A.2d at 491-495 (collecting cases) (inculpatory statements made by private in Marine Corps to his commanding officer concerning homicide required Miranda warnings); Commonwealth v. Chacko, 459 A.2d 311, 315 n.3 (Pa. 1983)(statement to director of treatment required Miranda warnings because he was acting in furtherance of on-going investigation); Commonwealth v. Ramos, 532 A.2d 465 (Pa. Super. 1987)(statement to CYS worker about child molestation charges was elicited during custodial interrogation even though caseworker said investigation was civil not criminal in nature.).

Since the defendant’s statements to the paramedics were not the product of a custodial interrogation, they are considered “gratuitous.” Heggins, 809 A.2d at 916. “Gratuitous statements do not require the issuance of Miranda warnings.” Id. As a result, the defendant’s statements to the paramedics are admissible.

B. Statements to Troopers Seiple and Myers

1. Trooper Seiple

Not every statement made by an individual during a police encounter constitutes interrogation. Miranda was “not intended to hamper the traditional function of police officers in investigating crime.... General on-the-scene questioning as to fact surrounding a crime or other general questioning of citizens in the fact-finding process” does not constitute interrogation. Miranda v. Arizona, 384 U.S. 436, 477 (1966); Commonwealth v. Grimes, 648 A.2d 538, 541 (Pa. Super. 1994)(wamings are not required where general on-the-scene investigatory questioning is conducted to determine whether a crime has been committed).

Miranda warnings, as explained earlier, are only required prior to a custodial interrogation. “The standard for determining whether an encounter with the police is deemed ‘custodial’...is an objective one based on a totality of the circumstances with due consideration given to the reasonable impression conveyed to the person interrogated.” Commonwealth v. Johnson, 42 A.3d 1017, 1028 (Pa. 2012)(defendant was not in custody when he made statements to police who responded to a report of an unresponsive two year old child on kitchen floor); See also Boczkowski, 846 A.2d at 90; Commonwealth v. Ingram, 814 A.2d 264 (Pa. Super. 2002). In Commonwealth v. Baker, 24 A.3d 1006, 1019-1020 (Pa. Super. 2011) citing Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999), the following factors were identified to determine under the totality of the circumstances whether a detention has become so coercive to constitute the functional equivalent of an arrest:

[T]he basis for the detention; its length; its location; whether the suspect was transported against his or her will, how far, and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions.

Id. See also Commonwealth v. Williams, 941 A.2d 14, 30 (Pa. Super. 2008); Commonwealth v. Watkins, 750 A.2d 308, 313 (Pa. Super. 2000).

In Howes v. Fields, 132 S.Ct. 1181, 1189 (2012), it was similarly explained:

As used in our Miranda case law, ‘custody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of the objective circumstances of the interrogation, a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave. And in order to determine how a suspect would have gauge[d] his freedom of movement, courts must examine all of the circumstances surrounding the interrogation. Relevant factors include the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.

Id. (internal quotations and citations omitted).

Here, the defendant was not in custody when she was briefly questioned by Trooper Seiple at the scene of the collision. The trooper was still in the process of investigating the circumstances of the collision, and the defendant was the only person present who was responsive. Other than telling Trooper Seiple that she did not remember the circumstances surrounding the collision, the only other information elicited was her name and address.

When Trooper Seiple spoke to the defendant that afternoon at approximately 4:15 p.m. in her hospital room, the character of the questions had not changed. His inquiries were investigatory, not accusatory, and were asked in the presence of the defendant’s family members. The defendant maintained that she did not recall the events. The only other pertinent information provided to Trooper Seiple came from the defendant’s step-father. He reviewed the defendant’s “employment details” in her presence at the hospital, which she confirmed. Those statements were not part of a custodial interrogation, and not the product of any coercion. It is doubtful that the defendant’s confirmatory statements even constitute interrogation.

Other courts faced with similar circumstances have concluded that general on-the-scene questioning to determine whether there was a crime does not require Miranda warnings. In Commonwealth v. Gonzalez, 546 A.2d 26, 29 (Pa. 1988), police inquiries of the defendant at the scene of an accident about his welfare, and the circumstances of the accident, did not constitute a custodial interrogation. The defendant was not in custody nor could he have reasonably believed he was in custody for purposes of Miranda. “At that time, the appellant was not under arrest and he has not shown that he was subjected to restraints comparable to those associated with an arrest. The appellant was asked a minimal number of questions at the scene of an accident on a public street.” Id. at 30. See also Commonwealth v. Williams, 941 A.2d at 30-33; Commonwealth v. Hausman, 2002 WL 32096596 (Pa. Com.Pl. 2002).

Likewise, the defendant was not subject to a custodial interrogation when Trooper Seiple visited her in the hospital, and in the presence of family members, made some limited inquiries. In Commonwealth v. Perry, 710 A.2d 1183, 1186 (Pa. Super. 1998), a trooper who responded to an accident learned that the defendant had an odor of alcohol on his breath, but did not question the defendant, because the defendant was transported to a local hospital for treatment of injuries. The trooper then proceeded to the hospital to question the defendant about the accident and did so while the defendant was “lying on his back on a gurney, wearing a neck brace.” Id. at 1185. Relying upon Commonwealth v. Fento, 526 A.2d 784 (Pa. Super. 1984), it was held that Miranda warnings were not required because the defendant was not subject to custodial interrogation. The court in Perry reasoned,

[t]he overriding concern of this court is to determine what was the reasonable belief of the accused during the questioning. Although a factor, the motive of the trooper, specifically, whether the accused was the focus of a criminal investigation, is not the central issue.... Appellant was not faced with a situation where he could reasonably believe he was unable to end questioning at his discretion. All facts indicate that appellant was not pressured to answer questions nor was his environment conducive to an interrogation. His family was present as were medical personnel. No evidence indicates that the officer pressured appellant to answer questions, and, from all indications, his statements were voluntary.

Id. at 1186-1187 (internal citation omitted).

In Commonwealth v. Ellis, 549 A.2d 1323, 1333 (Pa. Super. 1988), the defendant was questioned in a hospital emergency room. The defendant was not placed under arrest, and the only restraints “were those caused by [the defendant’s] medical condition, as opposed to any action on the part of the police.” Id. See also Commonwealth v. Johnson, 727 A.2d 1089 (Pa. 1999)(interview at Reading Hospital was not custodial in nature); Fento, 526 A.2d at 787-789 (routine questioning of a driver while being treated at a hospital was not tantamount to custodial interrogation); Kimberly R Winbush, J.D., What Constitutes “Custodial Interrogation ” at Hospital by Police Officer Within Rule of Miranda v. Arizona Requiring that Suspect Be Informed of His or Her Federal Constitutional Rights Before Custodial Interrogation Suspect Hospital Patient, 30 A.L.R. 6th 103 (2008).

2. Trooper Myers

Trooper Myers’ interview with the defendant lasted less than ninety (90) minutes, and ended without an arrest. It was conducted in the defendant’s hospital room, and in light of her inability to remember much about the collision, consisted mainly about her activities leading up to the collision. Those details included her recent sleeping history and her hours of employment at Aeropostale.

It was never Trooper Myers’ intention to take her into custody when he completed his interview even though he thought she was the cause of the collision. Even so, the fact that a police investigation has focused on a particular individual does not lead to the conclusion that the defendant was in custody for Miranda purposes. Commonwealth v. Williams, 650 A.2d 420, 427 (Pa. 1994)(the test for custodial interrogation does not depend upon the subj ective intent of the law enforcement interrogator, but on whether the individual being interrogated reasonably believes her freedom of action is being restricted). See also Ellis, 700 A.2d at 954-955. Baker, 24 A.3d at 1020 quoting Fento, 526 A.2d at 787.

The defendant was in the hospital for medical and not custodial reasons. She was not handcuffed, and if her physical condition permitted her to do so, she could have departed the hospital without any police intervention. Ultimately, she was not arrested until June 23, 2014.

Given these facts, even if the defendant was a suspect in causing the collision, Miranda warnings were not required to be provided to her. The defendant was not deprived of her freedom of movement when she was interviewed, and any restraint on her freedom of movement was due to the injuries she sustained in the collision. Commonwealth v. Smith, 555 A.2d 185, 190-191 (Pa. Super. 1989).

C. Voluntariness of Statements

The defendant contends that her statements were not voluntary because she “suffered from numerous injuries and showed visible pain” at the collision scene. It is also alleged that she was administered “pain medication” which rendered her statements involuntary.

The testimony of the troopers and paramedics at the suppression hearing regarding the defendant’s condition at the collision scene and later at the hospital was uncontradicted. There was no dispute that the defendant was injured, and administered Fentanyl on two (2) occasions before she arrived at the hospital. However, neither injuries nor pain medication is the sine qua non for reaching the conclusion that a statement is involuntary.

Paramedic Fegley testified that the defendant was alert and oriented and on the Glasgow Coma Scale she was a fifteen (15), or fully awake. Paramedic Hall testified that the defendant was able to answer all questions and never lost consciousness. Trooper Seiple testified that when he spoke to the defendant at the collision scene, she was in pain, but understood what she was being asked. Finally, Trooper Myers testified that although he had to rouse the defendant a few times at the hospital, when he was able to speak to her, she was “lucid.”

The test for determining the voluntariness of an accused’s statements is the totality of the circumstances. Commonwealth v. Martin, 101 A.3d 706, 724 (Pa. 2014); Commonwealth v. Smith, 85 A.3d 530, 537-538 (Pa. Super. 2014) quoting Commonwealth v. Wright, 14 A.3d 798, 815 (Pa. 2011)(“When a court is called upon to determine whether a confession is voluntary and, hence, admissible at trial, it examines the totality of the circumstances surrounding the confession to ascertain whether it is the product of an essentially free and unconstrained choice by its maker.”). The burden rests with the Commonwealth to show voluntariness by a preponderance of credible evidence. Commonwealth v. Hunt, 398 A.2d 690, 692 (Pa. Super. 1979); see also Pa.R. Crim.P. 581(H).

Numerous factors should be considered to determine whether a statement is freely and voluntarily made, including the following:

The means and duration of the interrogation, including whether questioning was repeated, prolonged, or accompanied by physical abuse or threats thereof; the length of the accused’s detention prior to the confession; whether the accused was advised of his or her constitutional rights; the attitude exhibited by the police during the interrogation; the accused’s physical and psychological state, including whether he or she was injured, ill, drugged, or intoxicated; the conditions attendant to the detention, including whether the accused was deprived of food, drink, sleep, or medical attention; the age, education, and intelligence of the accused; the experience of the accused with law enforcement and the criminal justice system; and any other factors which might serve to drain one’s powers of resistance to suggestion and coercion.

Martin, 101 A.3d at 725 citing Commonwealth v. Perez, 845 A.2d 779, 785, 787 (Pa. 2004).

Here, the only factor which needs to be reviewed is the defendant’s “physical state” as it pertains to her injuries, and whether her medication affected her statements. Nothing in the evidence suggests that she was subjected to prolonged questioning or any abuse or threats. She was being treated by medical personnel on the scene and at the hospital, and so she was not deprived of “food, drink, sleep, or medical attention.” Trooper Myers’ decision to rouse her when she dosed-off is not sleep deprivation.

In Commonwealth v. McQuaid, 417 A.2d 1210, 1213 (Pa. Super. 1980), the court recognized that the mental and physical condition of the accused at the time of an inculpatory statement is a very important circumstance in evaluating the totality of the circumstances. However, it was also determined that an inculpatory statement was voluntary notwithstanding that it was made in a hospital setting where the defendant was being treated for a gunshot wound to the head.

The “legality of confessions obtained when the accused is suffering from medical infirmities” has been considered on a number of occasions. Hunt, 398 A.2d at 693. In Hunt, the defendant was interviewed at the hospital while being treated for a knife wound. The defendant’s condition was described by the investigating detective as follows:

‘He was laying on the litter. He told me he was in pain. He said his stomach was hurting, but he answered questions candidly. Everything I asked him seemed to make sense with his answers.’ Additionally, Nespoli advised appellant of all required Miranda Warnings and asked a doctor, present in the room during the interview, if it would be all right to speak with appellant. The doctor replied yes. Appellant indicated he understood his constitutional prerogatives, that he did not want to continue later and that he would talk at that time. Nespoli further stated appellant did not appear to be in a drugged condition and that no promises or threats of any kind were employed to obtain the statement. Appellant offered no testimony at the suppression hearing to rebut the detective’s assertions.

Id. at 692-93 (internal citation omitted).

Based on the totality ofthe circumstances, the confession in Hunt was found to be voluntary. However, the court pointed out that their conclusion would be different if they had found an “egregious disregard” for the defendant’s constitutional rights, which would require suppression of the statement. Id. at 693 n. 3; cf. Commonwealth v. Walker, 368 A.2d 1284 (Pa. 1977)(appellant, just prior to interrogation, had been knocked unconscious, was intoxicated, groggy, and had a badly swollen eye; court found confession involuntary); Commonwealth v. Hallowell, 282 A.2d 327 (Pa. 1971)(appellant had been shot five times, blackjacked and pistol whipped about the head; confession elicited “a scant 30 minutes” after all the foregoing held involuntary); Commonwealth ex rel. Gaito v. Maroney, 220 A.2d 628 (Pa. 1966)(appellant had undergone surgery for serious bullet wound and was administered heavy doses of sedatives and other medications; confession extracted four hours after surgery held involuntary).

The defense citations to Commonwealth v. Holton, 247 A.2d 228, 231 (Pa. 1968) and Commonwealth v. Perry, 379 A.2d 545 (Pa. 1977)(plurality opinion), while relevant, are not comparable to the within case. The defendant in Holton was a “chronic alcoholic” suffering from delirium tremens, nausea, pain in the stomach and head, and other ailments when he made his inculpatory statement. He also requested medical assistance, which was refused. In Perry, the defendant, who was hospitalized due to a gunshot wound to the chest, complained of pain and also discomfort due to a catheter while being interrogated. During the interview he also asked for medication from a nurse who responded to his room, but was denied medication for pain. Both defendants’ statements, under the totality of the circumstances, were found to be involuntary.

Other cases, like Hunt, have reached the opposite conclusion finding statements to be voluntary despite current or recent medical treatments or ailments. Commonwealth v. Johnson, 727 A.2d 1089 (Pa. 1999) (defendant’s physical condition even though shot in the stomach was not so impaired to render statements to police involuntary); Commonwealth v. Jones, 651 A.2d 1101, 1104 (Pa. 1994)(statements at hospital and bum center where the defendant was being treated for second and third degree bums were found to be voluntary); see also Commonwealth v. Cornish, 370 A.2d 291, 295-97 (Pa. 1977)(drug withdrawal does not automatically invalidate an incriminating statement); Moore, 311 A.2d 620, 622-23 (Pa. 1973)(statement from a defendant, who was experiencing heroin withdrawal, found voluntary); Commonwealth v. Smith, 291 A.2d 103, 104 (Pa. 1972) (drinking does not automatically invalidate subsequent incriminating statements); Commonwealth v. Meachum, 711 A.2d 1029 (Pa. Super. 1998)(heroin use did not make statement involuntary).

Nothing presented at the suppression hearing would lead to the conclusion that the defendant’s physical condition made her statements involuntary. All of the witnesses testified that her answers to questions were responsive, and, while in pain, she was also alert. She was also told by a nurse, while in Trooper Myers’ presence, that she was going to recover from her injuries. Therefore, her emotional strain would have been alleviated by her awareness that her injuries were not life-threatening. Finally, the questioning was of limited duration, and during Trooper Seiple’s presence, family members were present. The statements to Trooper Myers were voluntary even though she fell asleep during portions of his interview. Although a defendant’s fatigue is a relevant factor in determining the voluntariness of a confession, an assertion of “tiredness” is not a sufficient ground upon which to base a finding of involuntariness if there is testimony that the accused was alert and in possession of his or her senses. Commonwealth v. Rose, 396 A.2d 1221 (Pa. 1979).

The defendant’s statements, which were limited primarily to either not remembering the crash or telling the paramedics she may have fallen asleep while driving, were the “product of and unconstrained choice” by the defendant. Hunt, 398 at 692. She had the mental capacity at the time of giving the statement to know what she was saying and to have voluntarily intended to say it. Smith, 291 A.2d at 104. Therefore, the defendant’s statements were voluntary.

D. Consent To Search Cell Phone

“[T]he Commonwealth bears the burden of establishing that a consent is the product of an essentially free and unconstrained choice — not the result of duress or coercion, express or implied, or a will overborne — under the totality of the circumstances.” Commonwealth v. Strickler, 757 A.2d 884, 901 (Pa. 2000); see also Commonwealth v. Smith, 77 A.3d 562, 568-569, 573 (Pa. 2013)(“Gauging the scope of a defendant’s consent is an inherent and necessary part of the process of determining, on the totality of the circumstances presented, whether the consent is objectively valid, or instead the product of coercion, deceit, or misrepresentation.”). In that regard, “the maturity, sophistication and mental or emotional state of the defendant” becomes part of any evaluation into a consent to search. Id. quoting Strickler, 757 A.2d at 901.

Here, the defendant was read the consent to search form “verbatim” by Trooper Myers. She acknowledged that she understood it, and signed it. Her signature was witnessed by Nurse Zum. The form explains that Trooper Myers’ request to search her vehicle, its contents, and the cell phone was in an effort to determine the cause of the collision. Contained within the form is also the following:

I have been told that I do not have to give my consent. I understand that I have the right to refuse this request, and that the police may not be able to conduct this search without a search warrant unless I give my consent.

Trooper Myers did not use deceit, misrepresentation or coercion in seeking to search her cell phone. There were no police excesses or any other factor which would vitiate the consent. The defendant was fully aware that she was not required to consent to the search. Additionally, on the basis of the totality of the evidence, when viewed objectively, a reasonable person “would have contemplated the potentiality of the results being used for criminal, investigative, or prosecutional purposes.” Smith, 77 A.3d at 573.

Trooper Myers, in assessing the defendant, learned that she was employed and attending school, and was satisfied that her responses to his questions were “lucid.” Neither her physical nor her emotional conditions were to a degree that would prevent her from voluntarily consenting to a search of her cell phone. Therefore, based on the evidence presented, the Commonwealth objectively has satisfied its burden that the consent was the “product of an essentially free and unconstrained choice.” Smith, 77 A.3d at 573.

For all the foregoing reasons, the omnibus pretrial motions must be denied.

ORDER

And now, this 2nd day of January, 2015, upon consideration of the defendant’s motion to suppress evidence filed on October 17, 2014 and hearings held in this matter on October 28, 2014 and November 18, 2014; upon further consideration of the briefs of counsel;

It is hereby ordered that the motion to suppress is denied.

      .75 Pa.C.S. §3732(a).

      . 18 Pa.C.S. §2504(a).

      . 18 Pa.C.S. §2705.

      . See Commonwealth’s Exhibit 1.

      . On April 29, 2014, Trooper Seiple conducted a telephone interview with the defendant. She had been released from the hospital and provided no new information about the collision. She did offer information about her injuries, but nothing that could be characterized as “incriminating”. It is doubtful that her statements to Trooper Seiple constituted “incriminating responses”. However, an incriminating response means “any response — whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial”. Commonwealth v. Petrino, 480 A.2d 1160, 1168 n.5 (Pa. Super. 1984)(emphasis in original). Therefore, the defense has the right to challenge the statements made to Trooper Seiple. However, in light of the discussion taking place by phone, the result is the same.

      . Omnibus pretrial motion, ¶¶120,20.

      . Id at ¶¶12d, 19.

      . A non-exclusive list of factors have evolved in considering whether a search was consensual, including the following: (1) the presence or absence of police excesses; (2) whether there was physical contract; (3) whether police directed the citizen’s movements; (4) police demeanor and manner of expression; (5) the location and time of the interdiction; (6) the content of the questions and statements; (7) the existence and character of the initial investigative detention, including its degree of coerciveness; (8) whether the person has been told that he is free to leave; and (9) whether the citizen has been informed that he is not required to consent to the search. Commonwealth v. Kemp, 961 A.2d 1247, 1261 (Pa. Super. 2008) citing Strickler, 757 A.2d at 898-899.

      . See Commonwealth’s Exhibit 1.

      . The initial search of the cell phone led Trooper Seiple to secure a search warrant for the cell phone. The validity of the search warrant is not a subject of these motions.


source: Caselaw Access Project

author: ZULICK, J.,

license: Public Domain

text:
    Giambalvo-Blaha v. CBH20 LP

      C.P. of Monroe County,
    No. 3975 CV 2013

      Paul Kramer, for plaintiffs.

      Hugh M. Emory, for defendant.
    Jan. 16, 2015
   ZULICK, J.,

This case is before the court on defendant CBK Mountain Adventures’ (CBK) motion for summary judgment. Plaintiff Tracy Giambalvo-Blaha filed a complaint on May 14, 2013 in which she alleged that she fell while walking on a path at Camelback resort after watching her daughter leave a zip line station. CBK filed an answer on June 11, 2013 and a motion for summary judgment on September 25, 2014. The case was listed for argument on November 3, 2014. Both parties filed briefs and argued their positions on that date.

DISCUSSION

Summary judgment may be granted pursuant to Pa. R.C.P. 1035.2 where there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court must also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employers Mat. Cos, 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters. Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant. Elia v. Olszewski, 84 A.2d 188 (Pa. 1951). While all doubts are resolved against the moving party, summary judgment should be granted where the moving party’s right is “clear and free from doubt.” Martin v. Sun Pipe Line Co., 666 A.2d 637, 639 (Pa. 1995).

The facts presented in Ms. Giambalvo-Blaha’s deposition are as follows. On May 31, 2011, plaintiff, her husband and their 14 year old daughter went to CBK Mountain Adventures where her daughter intended to ride the zip-line. Plaintiff’s deposition, NT 24, 30, 41. The weather was beautiful that day. Id. at 30-31. The family bought tickets, and plaintiff walked with her husband and daughter up a path to the zip line station. Id. at 30. The beginning of the path consisted of smooth rock and gravel, but the path became more uneven as the family walked up the mountain. Id. at 35-36. “There were larger rocks, there were loose rocks, there was gravel, there was flatter spaces, there were a few dips, and — and then that’s the way it was going up to the top.” Id. at 36. The walk to the top took about five minutes, and the path was fully visible. Id. Plaintiff took the most walked-upon path to the station. Id. NT 39. Near the top of the path, she took a picture of her daughter who was harnessed and travelling down the zip line. Id. NT 40, 41, 43.

Ms. Giambalvo-Blaha then turned and began to walk back down the path in the direction from which she had come. She testified: “my goal was to walk down the mountain and greet my daughter; and instead, my daughter was running up to me to want to go again. And at that point, going down the mountain is when I fell.” Plaintiff’s deposition, NT 46. Plaintiff continued:

[I]t was a very, very uneven path. There were a lot of loose natural rocks that were on the path. There were rolling rocks and there were a few dips. It was a very, very uneven path. It was a mountain path. And I must have rolled over- a rock beneath my sneaker. My ankle had turned outward and I went down on my knee and my hands and fell to the side.

Id. at 47.

Plaintiff understood that she was walking up a mountain path. She was able to see the entire path as she was walking up it. Id. at 54. Plaintiff circled the area of Exhibit D-ll to show the approximate condition of the path where she fell. Id. at 58. This area of the path had a surface of large and small rocks, as well as gravel. Plaintiff testified that she “landed on the bigger rocks.” Id. at 57. She was aware that there were “a lot of loose rocks, I was aware that it was an uneven, ungraded, unmaintained path to get to the destination.” Id. at 59.

To establish negligence, a plaintiff must establish (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury; and (4) actual damage. Pittsburgh National Bank v. Perr, 631 A.2d 334, 336 (Pa. Super. 1996), citing Morena v. South Hills Health System, 462 A.2d 680, 684 n. 5 (Pa. 1983).

The first question presented here is whether there was a duty owed to Ms. Giambalvo-Blaha by CBK under the circumstances presented according to Ms. Giambalvo-Blaha’s testimony. The standard of care a possessor of land owes to one who enters upon the land depends upon the latter’s status as a trespasser, licensee, or invitee. Gutteridge v. A.P. Green Services, Inc. 804 A.2d 643, 655-656 (Pa. Super. 2002). CBK acknowledges that Ms. Giambalva-Blaha was an invitee.

Possessors of land owe a duty to protect invitees from foreseeable harm. Restatement (Second) of Torts §§ 341 A, 343 & 343A(1965). With respect to conditions on the land which are known to or discoverable by the possessor, the possessor is subject to liability only if he:

“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.”

Restatement, supra, § 343.

Thus, as is made clear by section 343A of the Restatement:

[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Restatement, supra, §343A.

The law of Pennsylvania does not impose liability if it is reasonable for the possessor to believe that the dangerous condition would be obvious to and discovered by his invitee. Atkins v. Urban Redevelopment Auth. of Pittsburgh, 414 A.2d 100, 104 (Pa. 1980). A danger is deemed to be “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” Restatement, supra, § 343A, Comment b. For a danger to be “known,” it must “not only be known to exist, but... also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.” Id

The Pennsylvania Supreme Court considered an analogous situation in Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983). In Carrender, a patient going to see her chiropractor parked her car on a patch of ice in the doctor’s lot. Other parking spaces in the lot were free of ice. As she got out of her vehicle, she realized she was on a sheet of ice. She exited the vehicle anyway and successfully made it into the doctor’s office. On her return, she fell on the ice. Our supreme court held that the owner of the parking lot had no duty to the plaintiff:

[T]he existence of the ice was obvious to a reasonably attentive invitee, but also that appellee herself was aware of the ice and appreciated the risk of traversing it. Before alighting from her vehicle, appellee knew both that a sheet of ice lay next to the driver’s side of the parking space which she had selected and that this condition presented a danger. She nevertheless proceeded across the ice, both when she emerged from her car and again on her return to the car. There was nothing presented on the record to indicate that, notwithstanding the obviousness of the danger, appellants should have anticipated that the patch of ice might go unnoticed by appellee or any other patient; on the contrary, appellants could reasonably expect that, in light of the number of clear, convenient spaces available, appellee and other invitees would recognize the danger posed by the ice and choose to park in another, ice-free space to avoid it. See Restatement, supra, § 343A comment g.

Carrender, supra at 124.

Although the question of whether a danger was known or obvious is usually a question of fact for the jury, the question may be decided by the court where reasonable minds could not differ as to the conclusion. See Id.; Restatement, supra, § 328B, Comments c — d.

Ms. Giambalvo-Blaha’s deposition testimony established that the condition of the rocky, hilly path was obvious to a reasonably attentive guest of CBK. She testified that the weather was beautiful that day and that the condition, grade, and surface of the path were visible and known to her. She hiked up the path without incident. Although she characterized the path as uneven with loose rocks, she was fully aware of what lay ahead as she continued walking. The pictures of the conditions where she fell showed that she had the ability to avoid the areas of larger rocks if she was uncertain of her footing there. Being fully aware of the conditions of the trail as she was walking, and before she encountered them, she proceeded up the trail to the top and fell upon her return.

Plaintiff argues that even though the trail conditions were obvious to her, CBK should have anticipated that she would step on an unstable rock in the path and fall. On the contrary, Camelback could reasonably expect that its visitors would recognize the danger posed by the rocky surface and avoid stepping on a loose, unstable stone. The picture of the path in D-ll shows that the path offered smooth gravel adjacent to the larger stones where plaintiff fell. Plaintiff was aware she was not walking on a highly improved or asphalt walkway. This was a short hike on a natural trail that required some care in foot placement.

CBK had no duty to protect Ms. Giambalvo-Blaha from the conditions that led to her unfortunate fall and injury.

ORDER

And now, this 16th day of January, 2015, upon consideration of defendant CBK Mountain Adventures’ motion for summary judgment, plaintiffs’ response thereto, legal briefs, and arguments of the respective parties, it is ordered that:

1. Defendant’s motion for summary judgment is granted.

2. The prothonotary is directed to enter judgment in favor of the defendant.


author: FORD, J.,

text:
    Commonwealth v. Savage

      C.P. of Lehigh County,
    No. CP-39-CR-2092-2014

      James B. Martin and Heather F. Gallagher, for Commonwealth.

      Carol A. Marciano, for defendant.
    Jan. 28, 2015
   FORD, J.,

This is the Commonwealth’s appeal from the trial court’s pre-trial dismissal of one felony and three misdemeanor charges filed against appellee/defendant, Oliver Franklin Savage, for a traffic accident that he caused resulting in the death of James Knappenberger.

The dismissal order was entered on October 29, 2014. The Commonwealth timely filed its appeal to the Superior Court of Pennsylvania on November 19, 2014. In the Commonwealth’s “concise statement of matters complained of on appeal,” which the Commonwealth also timely filed, it contends that the court abused its discretion by dismissing the four charges even though it presented a prima facie case on each charge. Because the Commonwealth presented insufficient evidence on the charges, I properly dismissed them. The appeal is meritless as I explain in this opinion which is filed under Pa.R.A.P. 1925(a).

The charges filed against the appellee in the criminal information were: Count 1, homicide by vehicle, 75 Pa.C.S. §3732(a), Count 2, involuntary manslaughter, 18 Pa.C.S. §2504(a), Count 3, recklessly endangering another person, 18 Pa.C.S. §2705, Count 4, recklessly endangering another person, 18 Pa.C.S. §2705, Count 5, careless driving, 75 Pa.C.S. §3714(b), Count 6, driving at safe speed, 75 Pa.C.S. §3361, Count 7, following too closely, 75 Pa.C.S. §3310(a), and Count 8, reckless driving, 75 Pa.C.S. §3736(a). All charges stemmed from a vehicular accident on February 10, 2014, in which Mr. Rnappenberger was killed. Counts 1, 2, 3 and 4 are the primary subjects of this appeal but as I will show, some of the remaining counts, which are summary offenses, were considered in reaching the decision to dismiss the first four counts.

On July 28, 2014, appellee’s counsel filed an omnibus pre-trial motion which contained Section I entitled “motion for a writ of habeas corpus and/or motion to dismiss all the felony and misdemeanor counts in the criminal information.” The contention in this motion was that the Commonwealth could not present a prima facie case as to Counts 1 through 4. I conducted a hearing on this motion on September 4, 2014.

In an effort to establish a prima facie case, the Commonwealth presented the transcript of the testimony from the preliminary hearing (C-5), accident photos (C-l through C-4), a map of the accident location (C-6), and a diagram of the accident scene (C-l). The Commonwealth also presented the testimony of Sergeant Cory Reader of the Upper Macungie Township Police Department and the testimony of Sergeant William Easparr of the same department. Sergeant Reader investigated the accident. Based upon extensive training and experience, he rendered expert testimony about the dynamics and cause of the accident. Sergeant Easparr testified about a statement that the appellee made to him at the scene following the accident.

After consideration of that evidence and applicable law, I concluded that the Commonwealth had not established a prima facie case on Counts 1 through 4 and I dismissed those counts through the October 29 order.

What follows is a summary of the evidence, presented exclusively by the Commonwealth, on the habeas corpus motion and the motion to dismiss. The evidence was uncontroverted.

Statement of Facts

Shortly after 9:00 a.m. on February 10,2014, appellee, Mr. Savage, was operating a white Freightliner truck tractor with an enclosed trailer traveling northbound (which was actually in an easterly direction) on Route 222 approaching its intersection with Newtown Road and Breinigsville Road in Upper Macungie Township, Lehigh County. The day was clear with no precipitation. The roadway was dry except for some wet spots. There was plowed snow off the roadway beyond the fog line. For a motorist traveling northbound for a considerable distance on Route 222 before entering this intersection, as appellee was, he would pass through the village of Maxatawny where the posted speed limit was 35 miles per hour. After traveling through that village, there is a posted speed limit of 55 miles per hour which posting was the final one before the motorist would arrive at this intersection. For the same motor vehicle operator traveling northbound, he would first see this intersection from approximately three-tenths of a mile before arriving at it. In the truck tractor that appellee operated, he sat higher than a person operating a passenger vehicle. •

As appellee drove his tractor trailer toward the intersection, vehicles in front of him were stopped or slowing because of the operational traffic signal at the intersection. The last vehicle in line of the slowing or stopped vehicles was a white Dodge Caravan operated by Mr. Knappenberger. As the truck and the Caravan approached the intersection, there were no vehicles between the truck and the Caravan.

Appellee had his truck in ninth gear in a ten-gear transmission. This is one gear short of over-drive. As Sergeant Reader explained, “In your passenger car, essentially it would be having it in the D with a circle around it like you were traveling on the highway.... It would be a gear selected generally if you were not intending to slow down or change speed.” C-5, p. 17.

Appellee failed to recognize in time that the vehicles in front of him, including Mr. Knappenberger’s, were either stopped or slowing. As a result, he failed to maintain control of his own vehicle. The data from the truck’s engine module control (EMC), which was retrieved later, indicated that appellee applied the brakes on the truck in what was described as abnormal or hard or panic braking. Immediately prior to reaching Mr. Knappenberger’s Caravan, appellee turned his truck to the right. Despite these attempts at evasion, the front of his vehicle on the driver side struck the rear passenger comer on the Caravan. The force and angle of that collision forced the Caravan across the middle lane and into the oncoming or southbound (westerly direction) lane of Route 222. Just at that moment, a different tractor trailer was traveling in the oncoming lane. It was stmck by the Caravan under the driver’s side door in the area of the fuel tank.

These were Sergeant Reader’s expert conclusions:

Based on everything we observed at the scene, the damage to the vehicles, the data that was gathered from the ECM module, I believe Mr. Savage was traveling down the roadway; gear selection indicates he was traveling with open space in front of him prior to getting to that intersection; and did not recognize that the open space was closing rapidly because there were vehicles stopped in front of him. As I testified, there were several other cars that pulled off. Those vehicles were forward of that Dodge van that day. They were indicative of the traffic signal that was either red or just changed to green or some sort of interaction where all those cars were stopped forward of Mr. Savage’s vehicle. He failed to recognize either enough to bring his vehicle to a stop or at least slow it to a point to keep control of it until those cars started to proceed away from him or forward of him. Those steps, pre-crash, contributed and caused the crash that is depicted in those pictures. Again, the panicked braking and offset or steering to the right, as we talked about, struck the van and pushed it into the oncoming lane.

C-5, pp. 28-29.

Following the accident, the police determined that a brake on appellee’s truck was out of adjustment. There was no proof nor was there an argument that this contributed to the accident. The investigation did not reveal any other mechanical problems with the tractor trailer. The precise speed at which the appellee was operating his truck immediately before his hard braking or at the point of impact was unknown. Sergeant Reader believed that it would be “unfair and not accurate” to render an opinion on the speed of appellee’s truck at impact based on the data available to him. (He offered a range of speed between 30 and 52 miles per hour with his estimation that appellee traveled 40 miles per hour at impact.) C-5, pp. 38-40.

There was no evidence that appellee was using a cell phone or any other extraneous device at the points of braking or impact. Appellee was tested for the presence of alcohol which yielded negative results.

At the direction of the police, appellee remained seated in the truck cab following the accident. Sergeant Easparr spoke with appellee while he was seated in the driver’s seat. Appellee told the sergeant that the accident was his fault. When the sergeant asked him to explain what happened, appellee stated he was traveling northbound on Route 222. He noticed that there was a line of traffic stopped in front of him, but it was too late. He tried to apply the hard brake on a wet roadway, but the vehicle was not stopping. He swerved to the right but his truck collided with the passenger side rear of the Caravan which was the last vehicle in the line of the stopped vehicles. That propelled the Caravan into the southbound lane of travel where the minivan struck the other tractor trailer and pushed it back in the other direction while the southbound tractor trailer went down an embankment.

Discussion and Conclusions of Law

Appellee challenged the sufficiency of the Commonwealth’s evidence on the felony and misdemeanor charges. Appellee did this through its motion for writ of habeas corpus contained within the omnibus pre-trial motion. This was the appropriate procedural means for the pre-trial challenge to the sufficiency of the evidence. Commonwealth v. Huggins, 575 Pa. 395, 399 n.2, 836 A.2d 862, 864 n.2 (2003).

At the pre-trial stage, the Commonwealth does not have to prove a defendant’s guilt beyond a reasonable doubt. Rather, the Commonwealth’s burden is to present a prima facie case of the defendant’s guilt. Id. at 402, 836 A.2d at 866 (citation omitted). “Aprima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense.” Id. (citation omitted). In determining if a prima facie case has been established, the Commonwealth is entitled to reasonable inferences and the evidence must be read in the light most favorable to the Commonwealth’s case. Id. (citation omitted).

In the present case, for purposes of whether the Commonwealth presented sufficient evidence, there was no dispute that Mr. Knappenberger died as a result of appellee’s conduct in driving the tractor trailer. The primary issue was whether the mens rea elements of homicide by vehicle, involuntary manslaughter and recklessly endangering another person were established by the evidence.

The statutory definition of Count 1, homicide by vehicle, in pertinent part, is: “Any person who recklessly or who with gross negligence causes the death of another person while engaged in the violation of any law of this Commonwealth...applying to the operation or use of a vehicle or to the regulation of traffic...is guilty of homicide by vehicle, a felony of third degree, when the violation is the cause of death.” 75 Pa.C.S. § 3732(a). Thus, the mens rea requirement in this statute that the Commonwealth must prove is that the appellee drove his vehicle “recklessly or with gross negligence.”

The statutory definition of Count 2, involuntary manslaughter, is: “A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.” 18 Pa.C.S. § 2504(a).

The appellate courts have construed the terms “reckless” and “grossly negligent” as defining the equivalent state of mind for purposes of these statutes. See Commonwealth v. Colmer, 552 Pa. 527, 534, 716 A.2d 593, 597 (1998); and Commonwealth v. Grimes, 842 A.2d 432, 434 (Pa. Super. 2004).

The definition of each offense charged in Counts 3 and 4, recklessly endangering another person, is found at 18 Pa.C.S. §2705 which reads: “A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. §2705. The mens rea of recklessness is evident from this definition.

In that recklessness is the mens rea which the Commonwealth had to demonstrate to proceed to trial on Counts 1 through 4, I examined what constitutes recklessness. It is defined in the general culpability section of the Pennsylvania Crimes Code in these words:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

18 Pa.C.S. § 302(b)(3). In order to consciously disregard a substantial and unjustifiable risk, one must be aware of the risk and choose to proceed in spite of it. Commonwealth v. Huggins, 575 Pa. at 400, 836 A.2d at 865.

Section IV of appellee’s omnibus pre-trial motion contained appellee’s request that the trial court not permit the introduction of appellee’s statement to the police made following the accident on the habeas corpus motion or at trial because of the Commonwealth’s alleged inability to comply with the corpus delicti rule.

“The corpus delicti rule placed the burden on the prosecution to establish that a crime has actually occurred before a confession or admission of the accused connecting him to the crime can be admitted.” Commonwealth v. Hernandez, 39 A.3d 406, 410 (Pa. Super. 2012) (quoting Commonwealth v. Young, 904 A.2d 947, 956 (Pa. Super. 2006)). The Commonwealth had to demonstrate the corpus delicti by a preponderance of the evidence. Commonwealth v. Hernandez, 39 A.3d at 411. In meeting this burden, the Commonwealth was permitted to rely on circumstantial evidence. Commonwealth v. Rivera, 828 A.2d 1094, 1103-1104 (Pa. Super. 2003) (citation omitted). Further, the Commonwealth did not have to prove that the alleged criminal act could not have been caused by accident. Commonwealth v. Byrd, 490 Pa. 544, 556, 417 A.2d 173, 179 (1980).

The court accepted the Commonwealth’s “closely related crime” argument to the extent that it presented a prima facie case for the summary offenses charged in Counts 5, 6 and 7 which were careless driving, driving at safe speed and following too closely. These offenses were sufficiently related to the felony and misdemeanor counts to permit introduction of appellee’s statement on Counts 1 through 4. (The Commonwealth did not show recklessness required for Count 8, reckless driving.) Also, I believe that the corpus delicti rule is applicable to the admission of evidence at a trial only. Therefore, I denied appellee’s motion to preclude consideration of his statement. I considered the statement in making the determination of whether there was a showing that appellee acted with recklessness on the felony and misdemeanor counts.

The question to be answered on the mens rea issue for Counts 1 through 4 was whether the Commonwealth produced prima facie evidence that appellee, in operating the tractor trailer in the circumstances that preceded the fatal collision, disregarded a substantial and unjustifiable risk that the direct result of his behavior would be the death of someone using or near the roadway. See Commonwealth v. Huggins, 575 Pa. at 407, 836 A.2d at 869 (posing this question in a factually similar case).

I considered the many explanations of recklessness found in the appellate decisions counsel cited. See, for example, Commonwealth v. Lamonda, 52 A.3d 365 (Pa. Super. 2012), Commonwealth v. Cienkowski, 290 Pa. Super. 415, 434 A.2d 821 (1981), Commonwealth v. Grimes, 842 A.2d at 432, Commonwealth v. Pedota, 64 A.3d 634 (Pa. Super. 2013), Commonwealth v. Setsodi, 303 Pa. Super. 482, 450 A.2d 29 (1982), Commonwealth v. Matroni, 923 A.2d 444 (Pa. Super. 2007), and Commonwealth v. Trainor, 252 Pa. Super. 332, 381 A.2d 944 (1977). I examined the circumstances in which these courts did and did not find recklessness. The cases were instructive. After consideration of these cases, the applicable statutes and the facts presented at the pre-trial hearing, I concluded that the Commonwealth did not make a prima facie showing that the appellee acted with recklessness.

Appellee did not notice the stopped or slowing vehicle of Mr. Knappenberger in front of him and could not stop his tractor trailer before it crashed into the Knappenberger vehicle. There was no evidence that appellee was struggling to stay awake, that he was intoxicated, that he was using a cell phone or engaging in any other activity that would have distracted his view of the roadway. There was no showing that appellee was speeding or driving erratically. There was no evidence even inferring that appellee consciously disregarded a known risk when he collided with Mr. Knappenberger’s vehicle. Appellee’s statement to police that the accident was his fault did not change the analysis. It only confirmed the known physical facts the police presented to the court.

The evidence only proved that appellee was inattentive in the moments before the collision. This was proof of ordinary negligence, not the required recklessness. As tragic as the accident was, under our law, “not every violation of the law or unlawful act committed while operating a motor vehicle will render the driver criminally liable for a death resulting from an accident in which the vehicle was involved.” Commonwealth v. Nicotra, 425 Pa. Super. 600, 608, 625 A.2d 1259, 1263 (1993) (quoting Commonwealth v. Sisca, 245 Pa. Super. 125, 129-30, 369 A.2d 325, 327 (1976)) (though Nicotra was decided prior to the amendment of the homicide by vehicle statute in 2000, the cited legal principle was equally applicable under the current law).

Because the Commonwealth did not make a prima facie showing that appellee acted with recklessness, the charges of homicide by vehicle, involuntary manslaughter and recklessly endangering another person were properly dismissed. The appeal should be denied.


author: HIGGINS, J.,

text:
    DS & BH Holdings II LLC v. Snyder

      C.P. of Monroe County,
    No. 1096 CV 2014

      James A. Doherty, Jr., for plaintiff.

      Eugene J. Maginnis, Jr., for defendant.

      Anne K. Manley, for additional defendant.
    Feb. 5, 2015
   HIGGINS, J.,

This matter is before the court on additional defendant’s, Angelo C. Terrana, Jr., Esquire (“Terrana”), preliminary objections to amended joinder complaint filed by defendants, Penn Commercial Real Estate, LLC, improperly identified as Coldwell Banker Commercial Pennco Real Estate, Inc. and Susan Mikels (collectively “joinder plaintiffs”). On February 18, 2014, plaintiff DS & BH Holdings, II, LLC (“plaintiff’) filed a complaint against defendants Jeffrey A. Snyder and Linda J. Snyder, individually and as husband and wife (“Snyders”), Coldwell Banker Commercial, Pennco Real Estate, Inc. and Susan Mikels seeking damages incurred following a real estate transaction. Plaintiff claims the defendants withheld the existence of a mortgage on the property commonly known as Mini-Storage in Hillside Business Park (“Mini-Storage”). On May 19, 2014, plaintiff filed an amended complaint. Plaintiff alleges that defendants failed to disclose a mortgage in favor of Wayne Bank in the amount of $1,259,103.93; and that defendants intentionally withheld the existence of a mortgage on Mini-Storage through verbal representations and by the executions of the sellers’ affidavit at the time of the closing. On April 11, 2014, joinder plaintiffs filed a joinder complaint (“JC”) against Terrana, whom they allege was retained as title agent for the plaintiffs. In an opinion and order dated September 5,2014, we sustained in part and overruled in part Terrana’s preliminary objections to joinder plaintiffs’ JC. We permitted joinder plaintiffs’ to file an Amended Joinder Complaint (“AJC”) which was filed on September 29, 2014. Terrana filed preliminary objections to the AJC on October 9,2014. The matter was scheduled for oral argument and we are now prepared to rule on Terrana’s preliminary objections to the AJC.

In ruling on preliminary objections, we must accept as true all well-pleaded, material and relevant facts, along with all reasonably deducible inferences therefrom. Schuylkill Navy v. Langbord, 728 A.2d 964, 968 (Pa. Super. 1999). We need not accept as true, however, “conclusions of law, unwarranted inferences from the facts, argumentative allegations or expressions of opinion.” Myers v. Ridge, 712 A.2d 791, 794 (Pa. Cmwlth. 1998). When ruling on a preliminary objection that would dismiss the action, we are mindful to sustain the objection only in the clearest of cases. Regal Industrial Corporation v. Crum and Forster, Inc., 890 A.2d 395, 398 (Pa. Super. 2005) (citation omitted). We will only sustain a demurrer when it is clear from the facts and reasonable inferences that the law will not permit recovery. HRANEC Sheet Metal, Inc. v. Metalico Pittsburgh, Inc., _ A.3d. _, 2014 WL 7212408 (Pa. Super. 2014) (citations omitted). With these standards in mind, we now address Terrana’s preliminary objection to AJC.

Preliminary objections in the nature of a demurrer are properly granted “where the contested pleading is legally insufficient, and no matters outside it may be considered. No testimony or other evidence outside the complaint may be considered to dispose of the legal issues presented by the demurrer.” Feldman v. Hoffman, _ A.3d _, 2014 WL 7212601 (Pa. Cmwlth. 2014).

However, it is well-settled that a court may rely on documents forming in part the foundation of the suit even where a plaintiff does not attach such documents to its complaint.... Documents, the contents of which are alleged in complaint and which no party questions, but which are not physically attached to the pleading, may be considered on motion to dismiss for failure to state a claim.

Id. (citations omitted).

Terrana’s first objection is in the nature of a demurrer. Terrana argues that the AJC must be dismissed since the joinder is illegally inappropriate and it fails to raise a legally sufficient claim of negligence [Terrana Brief in Support of preliminary objections filed October 9, 2014, p. 6]. Conversely, joinder plaintiffs argue that their action sounds in negligence and that they should be permitted to pursue the action against Terrana.

Negligence is proved by (1) a duty or standard of care; (2) a breach of that duty or standard; (3) proximate causation; and (4) actual damages. Carlotti v. Employees of General Electric Federal Credit Union No. 1161, 111 A.2d 564, 567 (Pa. Super. 1998). Before a breach can be found, a duty to another must be recognized. Id.

Pa. R.C.P. 2252 states that:

any party may join as an additional defendant any person not a party to the action who may be
(1) solely liable on the underlying cause of action against the joining party, or
(2) Rescinded.
(3) Rescinded.
(4) liable to or with the joining party on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the underlying cause of action against the joining party is based.

The AJC alleges that Terrana is liable over to plaintiff or solely liable over to plaintiff [2252(1)] or liable over to or jointly liable with joinder plaintiffs to plaintiff [2252(4)] in the underlying action. The AJC avers that Terrana was the title agent for plaintiff during the real estate transaction and that he failed to discover or disclose the June 2013 mortgage at the time of closing. AJC at ¶¶ 11. That mortgage remains a cloud on the title to the Mini-Storage. AJC at ¶¶ 9. Joinder plaintiffs further allege that Terrana owed a duty to plaintiff to perform the title search in accordance with the standard of care applicable to title agents and the failure to discover or disclose the mortgage caused a breach of that duty which resulted in damages to plaintiff. AJC at ¶¶ 13-15.

In ruling on preliminary objections, we must accept as true all well-pleaded, material and relevant facts, along with all reasonably deducible inferences therefrom. After reviewing all of the well-pleaded material facts and the deducible inferences, we believe that joinder plaintiffs have pleaded a cause of action against Terrana. Although joinder plaintiffs have not asserted an agency relationship or any other relationship between them and Terrana, they have averred sufficient facts to allow joinder pursuant to Pa. R.C.P. 2252(4). They assert that Terrana is liable over to plaintiff or liable over to joinder plaintiffs or with them on a cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the underlying cause of action against the joining party is based. In this action, there was one course of events leading up to plaintiff’s damages. These events include the title services performed by Terrana. Moreover, there is a common question in the plaintiff’s amended complaint and the AJC concerning responsibility for plaintiff’s damages. Further, Rule 2252 “is to be broadly construed to effectuate its purpose of avoiding multiple lawsuits by settling in one action all claims arising out of transactions or occurrences which give rise to the plaintiff’s complaint.” Olson v. Grutza, 631 A.2d 191, 196-197 (Pa. Super. 1993) (citation omitted). “Joinder is permitted only as long as the additional defendant’s alleged liability is related to the claim which the plaintiff asserts against the original defendant.” Id. 631 A.2d at 197 (citation and internal quotations omitted). The claim plead by joinder plaintiffs stems from the same transaction or occurrence which give rise to plaintiff’s claim and directly relates to plaintiff’s damages. Accordingly, we find that the proposed joinder in this case is permissible under Rule 2252.

In his brief, Terrana argues that the case of Mentzer & Rhey, Inc. v. Ferrari, 532 A.2d 484, 486 (Pa. Super. 1987) is controlling. In Mentzer, purchasers of real estate brought suit against seller for fraudulently concealing a culvert which resulted in damages when the culvert collapsed. The defendant then filed a joinder complaint against plaintiff’s attorneys for failing to discover the existence of the culvert in their title search. The Superior Court determined that “[j joinder is permissible only if the additional defendant ‘⅛ or may be liable to the joining party on a cause of action arising out of the transaction or occurrence upon which the plaintiff’s cause of action is based.’” Mentzer, 532 A.2d at 486 (citation omitted) (emphasis in original). The defendant in Mentzer attempted to join plaintiff’s attorneys as additional defendants, however; he failed to plead an attorney-client relationship between the attorneys and himself. The Superior Court found that the defendant was not in privity with the attorneys and, accordingly, he had no cause of action against them. That court also stated that any liability on the part of plaintiff’s attorneys would be secondary to that of defendant, who was primarily liable as the creator of the defect itself.

Instantly, joinder plaintiffs have not attempted to join Terrana in his capacity as an attorney. The AJC avers a negligence claim and negligent misrepresentation claim against Terrana as plaintiff’s title agent. Joinder plaintiffs claim that the Snyders created the lien and failed to disclose it at the time of the closing. Nevertheless, the AJC alleges that Terrana is primarily negligent for failing to discover or disclose the lien and that Terrana is liable over to plaintiff or liable over to joinder plaintiffs for any resulting damages. For purposes of preliminary objections, we must accept the well pleaded facts as true, and therefore, we overrule Terrana’s preliminary objections.

Terrana also filed a demurrer to the negligent misrepresentation claims of joinder plaintiffs. The AJC alleges Terrana owed a duty to plaintiff and not a duty to joinder plaintiffs. Since we have determined that joinder is permissible where a party is liable to or with the joining party on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the underlying cause of action against the joining party is based, this objection must also be overruled.

Finally, Terrana claims that the AJC contains an “undeniably ... legal malpractice claim” [Terrana’s brief in support of preliminaiy objections, p. 12] couched in a claim of simple negligence. Throughout the AJC, joinder plaintiffs refer to Terrana as plaintiff’s title agent and not as their attorney. The duty alleged to have been breach is the standard of care applicable to title agents. We do not believe that joinder plaintiffs are attempting to plead a legal malpractice claim couched in a claim of simple negligence. Accordingly, we overrule this objection and enter the following order.

ORDER

And now, this 5th day of February 2015, upon consideration of additional defendant Angelo C. Terrana, Jr., Esquire’s preliminary objections and the response thereto, it is hereby ordered that additional defendant Angelo C. Terrana, Jr., Esquire’s preliminary objections are overruled and additional defendant, Angelo C. Terrana, Jr., is directed to file a responsive pleading to the amended joinder complaint within 20 days from notice of this order.

      . Plaintiff commenced this action by filing a motion for preliminary injunction on February 14, 2014, which was denied by order dated February 20, 2014.

      . The amount plaintiff seeks to recover in its amended complaint is $196,175.24.


author: WILLIAMSON, J.,

text:
    Kepner v. Kepner

      C.P. of Monroe County,
    No. 6943 CV 2014

      Maria Ramirez, for plaintiff.

      Donald M. Leeth, for defendant.
    Feb. 5, 2015
   WILLIAMSON, J.,

This matter comes before us on preliminary objections filed by Tine Kepner (hereafter “defendant”) to the amended complaint filed by Franklin Kepner, Jr. (hereafter “plaintiff’). Plaintiff filed the amended complaint on October 23, 2014. On November 12, 2012, defendant filed preliminary objections to the amended complaint. On December 30, 2014, defendant filed a brief in support of preliminary objections to plaintiff’s amended complaint. On January 15, plaintiff filed a brief opposing defendant’s preliminary objections to plaintiff’s amended complaint. On January 16,2015, plaintiff filed preliminary objections in response to defendant’s preliminary objections.

BACKGROUND

On August 25, 2014, plaintiff filed the underlying complaint against defendant alleging claims of intentional misrepresentation as to a Verizon phone bill, and a breach of contract to transfer land to a third party. The amended complaint continues to allege intentional misrepresentation/ fraud and breach of contract in a land sale. Plaintiff and defendant were formerly husband and wife. A divorce decree was entered and marital assets and liabilities were previously divided by the Columbia County Court of Common Pleas in 2008. Franklin E. Kepner, Jr. v. Tine Kepner a/k/a Anne Kepner, 339 CV 2008. Plaintiff has appealed that ruling to the Superior Court of Pennsylvania and that appeal is currently pending.

In October, 2013, plaintiff was allegedly contacted by an individual from diversified adjustment services stating that plaintiff had an overdue bill with Verizon and that the bill, totaling $129.46, was for services utilized at plaintiff and defendant’s previous marital residence in Berwick, PA. Plaintiff believes that defendant put this bill in plaintiff’s name even though plaintiff did not use any of the services and he had vacated the marital residence over four years earlier. Plaintiff is allegedly attempting to obtain a copy of the bill, but he has not been able to do so at this time. He states the bill was sent to defendant on March 10, 2012; that the bill was not paid by the defendant; that the bill was placed in his name; and that harm has been caused to his credit. Plaintiff seeks $2,500 in unspecified damages and $50,000 in punitive damages. Defendant states that these allegations are argumentative and unsupported by evidence and requests the claim be dismissed.

Plaintiff also alleges that plaintiff and defendant owned real estate together in Berwick, PA and that they had agreed to sell the land to a mutual friend by the name of Wade Perry in August 2011. Plaintiff states that based on this representation, Mr. Perry had the property subdivided. Defendant then allegedly refused to follow through with the agreement to sell until May 2013. As a result of this delay, the plaintiff alleges he was no longer able to represent Mr. Perry in the transaction. Plaintiff alleges the defendant finally agreed to sell the real estate and they closed the deal on May 20, 2013. Plaintiff alleges that, as a result of defendant’s actions, he lost legal fees in the amount of $2,500. Plaintiff also seeks $50,000 in punitive damages. Defendant states that these allegations are also argumentative and unsupported by evidence and requests the claim be dismissed.

DISCUSSION

The first issue this court will address is defendant’s preliminary objection that plaintiff has failed to state a sufficient legal claim in their amended complaint for the claims of intentional misrepresentation and breach of contract against defendant. Preliminary objections in the nature of a demurrer test “the legal sufficiency of the complaint.” Haun v. Community Health Systems, Inc., 14 A. 3d 120, 123 (Pa. Super. 2011). Moreover, “preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief.” Id. Finally, “if any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.” Id.

In ruling on preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A. 2d 403, 407 (Pa. Cmwlth. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinions.” Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

Plaintiff’s first claim in the amended complaint is that defendant allegedly placed a Verizon bill in plaintiff’s name and that this action was intentional and fraudulent. Averments of fraud or mistake shall be averred with particularity. Pa. R.C.P. No. 1019. Malice, intent, knowledge, and other conditions of mind may be averred generally. Id. The elements of intentional misrepresentation are as follows: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and, (6) the resulting injury was proximately caused by the reliance. Bortz v. Noon, 556 Pa. 489, 499, 729 A.2d 555, 560 (1999).

Here, plaintiff has failed to state any facts supporting the claim that the defendant made an intentional misrepresentation. Even if all of the allegations from plaintiff’s amended complaint regarding the phone call about the Verizon bill are assumed to be true, there is insufficient evidence alleged to establish the required elements of intentional misrepresentation/fraud. Plaintiff has failed to state any specific representation made by the defendant which would be sufficient to sustain an allegation of fraud. Plaintiff has cited no specific representation made by the defendant, other than he (plaintiff) determined the bill was placed in his name by the defendant without his consent. There are no specific allegations of a representation made to Verizon, intent of the defendant, or reliance by Verizon on any representation. Plaintiff’s allegation that he received a phone call from an individual who stated that there is an overdue Verizon bill from plaintiff and defendant’s previous marital residence is not sufficient to support a claim of fraud against the defendant. Plaintiff has expressed opinions and inferences unsupported by the allegations set forth in the amended complaint. On the facts alleged, the plaintiff cannot sustain an action for intentional misrepresentation/fraud.

Plaintiff’s second claim in the amended complaint is against defendant for breach of contract to sell real property. The necessary material facts that must be alleged for such an action are: (1) there was a contract; (2) the defendant breached the contract; and (3) plaintiffs suffered damages from the breach. McShea v. City of Philadelphia, 606 Pa. 88, 97, 995 A.2d 334, 340 (2010). Plaintiff alleges that he and defendant agreed to sell land that they owned to Wade Perry. Plaintiff cites exhibits which he attached to the amended complaint to show that there was a breach of a contract to sell real property on the part of the defendant. Exhibit C is an e-mail allegedly from plaintiff’s and defendant’s realtor to Wade Perry in which the realtor states that she has “spoken with both Frank and Tina, and you are definitely moving forward. Congratulations, and thanks for your patience.” (PI. amend, compl. Ex. C.). That e-mail, even if assumed to be true, is not sufficient evidence to establish a contract between plaintiff and defendant. Exhibit D is allegedly an agreement of sale for the property, but it is not signed by any of the parties. (PL amend, compl. Ex. D). Exhibit E is the deed which was recorded when the property was eventually sold and does not provide any evidence as to a breach of contract. (PL amend, compl. Ex. E.). None of these exhibits proffered by plaintiff establish a contract, a breach of said contract, or damages suffered from such a breach.

The only other allegations that plaintiff and defendant had an agreement with each other to sell the land to Wade Perry for $14,000 on August 31, 2011 is plaintiff’s own allegation that defendant was originally agreeable with him to sell the land to Perry (para. 26 and 27). In other words, plaintiff is really claiming that he had an oral agreement with the defendant to sell the land they co-owned to Mr. Perry. Even taking this allegation as true, the plaintiff fails to set forth grounds for breach of contract. First, plaintiff and defendant eventually sold the property to Mr. Perry in May 2013. There was no allegation that the sale was for less than the amount “originally” agreed to by plaintiff and defendant. There was no allegation the parties incurred any additional expenses as a result of the delay. There was no allegation that the sale was for different terms than the parties “originally” agreed. There was no allegation of when the parties agreed to close on the sale in their “original” agreement. Interestingly, plaintiff has alleged that an agreement of sale was not prepared and sent to defendant until February 2012, and that Mr. Perry had to gain subdivision approval. These are both items that can cause delay in a real estate sale as well. Based upon these alleged facts, plaintiff fails to show any alleged breach, and his claim fails.

Even if there was a contract and a breach, the plaintiff has failed to set forth damages. The plaintiff states the defendant’s actions caused plaintiff to no longer be able to represent Mr. Perry in the very transaction plaintiff and defendant were allegedly engaged in with Mr. Perry. However, there is no allegation of plaintiff having an agreement in writing or otherwise with Mr. Perry for representation, or the terms of that representation. There is no allegation Mr. Perry intended to hire plaintiff and, but for defendant’s actions of breaching an agreement, Mr. Perry chose alternate representation. Plaintiff merely asserts that Mr. Perry decided to hire someone else, costing Mr. Perry the loss of a $2,500 fee on a $14,000 land sale transaction. The amount of the alleged fee was speculative and the allegation of actual representation of Mr. Perry was speculative. Plaintiff’s claim lacks specific information showing he suffered actual damages.

Thus, defendant’s preliminary objections based on legal insufficiency to the intentional misrepresentation and breach of contract claims alleged in plaintiff’s amended complaint are granted. Since defendant’s preliminary objections to both claims based on legal insufficiency are granted, this court does not need to address the other preliminary objections proffered by defendant at this time.

ORDER

And now, this 5th day of February, 2015, upon consideration of the preliminaiy objections by defendant, TinaKepner, to plaintiff’s amended complaint, defendant’s preliminary objections based on legal insufficiency are granted. The amended complaint is dismissed.

      . We note there can be no claim for breach of contract as between the parties and Mr. Perry because land sale contracts, to be binding, generally must be in writing.

      . It is apparent from plaintiff s allegations that at the very least, a conflict of interest existed which prevented his representation.


author: HERTZBERG, J.,

text:
    Preisinger v. Fox

      C.P. of Allegheny County,
    No. AR 13-2323; 18 WDA 2015

      Kevin R. O ’Malley, for plaintiff

      Jason K. Willis and Brian Bleasdale, for defendants.
    March 2, 2015
   HERTZBERG, J.,

Paul Preisinger, a maintenance worker at Extended Stay America, met Constance Loughner late in 2010 during a nine month period when Ms. Loughner resided there. Mr. Preisinger “developed a loving, caring relationship” with Ms. Loughner. Transcript of December 1, 2014 Non-Jury Trial (“T.” hereinafter), p. 4. Around April 30, 2012, Ms. Loughner informed Mr. Preisinger that her daughter, Heather Fox, was having financial difficulties. Mr. Preisinger offered to lend Ms. Fox $10,000, and he promptly provided Ms. Loughner a $ 10,000 check payable to Ms. Fox.

Ms. Loughner then promptly ended her romantic relationship with Mr. Preisinger, and Ms. Fox did not make any of the scheduled loan payments. In June of 2013 Mr. Preisinger sued Ms. Fox and Ms. Loughner for breach of contract. The dispute was first heard by a compulsory arbitration panel, and when the award was thereafter appealed, I was assigned to conduct the non-jury trial. Ms. Loughner died before the trial and Mr. Preisinger then dismissed her as a defendant and proceeded against only Ms. Fox. My verdict was in favor of Mr. Preisinger in the amount of $10,000. Ms. Fox has appealed this verdict to the Superior Court of Pennsylvania. This opinion addresses the two issues Ms. Fox indicates will be raised in the appeal. See Pa. R.C.P. No. 1925(a).

Ms. Fox argues there was not an enforceable contract because no evidence was produced that she accepted the repayment terms at or before the time she received the $10,000. See defendant Heather Fox’s concise statement of errors complained of on appeal. A contract is not formed unless the parties to it mutually assent to the same thing or have a meeting of the minds by way of an offer and an acceptance. See Accu-Weather, Inc. v. Thomas Broadcasting Company, 425 Pa. Super 335 at 340, 625 A.2d 75 at 78 (1993). Hence, Ms. Fox’s argument is that, because she did not accept the repayment terms at or before the time she received Mr. Preisinger’s $10,000 check, a mutual assent was not reached. However, there was sufficient credible evidence that she did accept the repayment terms before she received the $10,000.

Before Ms. Loughner received the $10,000 check, she knew Mr. Preisinger’s loan offer required her daughter, Heather Fox, to repay Mr. Preisinger $5,000 by the end of 2012 and $ 1,000 per month thereafter until the $ 10,000 was repaid. See T., pp. 5-8. Ms. Loughner “conveyed” this payment schedule to Ms. Fox by the time Mr. Preisinger delivered the check to Ms. Loughner. T., p. 8, 1.5. Ms. Loughner then mailed the check to Ms. Fox. Mr. Preisinger responded to his attorney’s questions about Ms. Fox agreeing to the loan as follows:

Q. At any point in time did you have a conversation with Heather Fox about this loan?
A. It was days after I forwarded a check because I contacted — You know, I was always in contact with the mother as much as I could. But, I mean, I went over to her place I guess three, four days afterwards. She said that Heather would be calling. Actually, she handed me the phone and Heather thanked me for the money. Basically explained the same thing that the mother conveyed to me and that everything would be — that it would be returned to me.
Q. Okay. Did she confirm the same terms that you would receive?
A. Yes, sir.
Q. About five thousand dollars by December and then a thousand dollars thereafter?
A. Yes. Yes.

T., pp. 9-10. Ms. Fox admitted that her Mother, Ms. Loughner, communicated to her in advance that the $10,000 would be coming. T, p. 29. While Ms. Fox denied being told the $10,000 was a loan, her denial was not credible. Mr. Preisinger’s testimony that Ms. Loughner had conveyed the repayment terms to Ms. Fox before Ms. Fox received the check, Ms. Fox admitting Ms. Loughner told her in advance to expect the money and Ms. Fox reciting the repayment terms to Mr. Preisinger shortly after receiving it is credible evidence that Ms. Fox accepted the repayment terms at or before the time she received the $10,000. I found this to be credible proof by a preponderance of the evidence that Ms. Fox and Mr. Preisinger, via Ms. Loughner, assented to the terms for repaying the $10,000 loan. Viewed another way, Ms. Fox’s negotiation of the check was acceptance by conduct (see Accu-Weather, Inc., supra.) of Mr. Preisinger’s loan offer. Therefore, there is no merit to Ms. Fox’s argument that there was not an enforceable contract.

Ms. Fox also argues there was no consideration for the contract because the $10,000 was a gift. However, testimony by Mr. Preisinger that the $10,000 was not a gift, including the following, was very credible:

Q. At any conversation to this point, did you ever offer this money as a gift?
A. Never.
Q. Did you ever indicate to Ms. Loughner or Ms. Fox that neither would have to repay this money?
A. It was never said. Never said a gift. Never. I gave this woman gifts. I took her — I gave her nice gifts. And even took her away to Aruba on her birthday. No. They were gifts. This was not a gift.

T., p. 10. On the other hand, Ms. Fox’s testimony that the $10,000 was a gift was not credible. In addition, Ms. Fox had only met Mr. Preisinger briefly once or twice before and Mr. Preisinger’s modest income meant $10,000 was a substantial amount of money to him. Hence, even without my credibility determinations, a gift of $10,000 by Mr. Preisinger to an individual he hardly knew seemed veiy unlikely. Therefore, the $10,000 provided to Ms. Fox was the consideration for the contract and not a gift.