author: CARPENTER, J,

text:
    Commonwealth v. Eggert

      Jason William Whalley, for Commonwealth.

      Timothy Peter Wile, assistant public defender, for defendant.
    July 26, 2010
   CARPENTER, J,

FACTUAL AND PROCEDURAL HISTORY

Appellant, Troy A. Eggert, appeals from the judgment of sentence imposed on May 10, 2010, following his conviction of driving under the influence and careless driving at a bench trial.

The bench trial established the following facts. On October 2, 2008, at approximately 8:05 a.m., Officer Christopher Daniel of the Lower Moreland Police Department responded to a motor vehicle accident involving four vehicles at Red Lion Road, between Pine and High Roads, Lower Moreland Township, Montgomery County. (Bench trial 3/9/10 pp. 5-6.) The officer approached appellant’s vehicle as the primary vehicle, because it appeared to be the one that caused the accident. Id. at 6-7. Upon approaching, Officer Daniel observed that appellant was in semi-conscious state, his pupils were constricted and he was shaking. Id. at 7,10. Appellant was non-verbal at first, and he was unable to answer the officer’s simple questions. Id. at 8. Appellant was confused and it appeared that he did not know where he was. Id. at 8,10. When Officer Daniel was able to speak to appellant, he observed that appellant’s speech was slurred, slow and confused. Id. at 11. Appellant did not appear to have a recollection as to what happened prior to the accident and immediately after the accident. Id. Appellant was then transported for treatment and testing to Holy Redeemer Hospital. Id.

Based upon the officer’s observations, training and his involvement with the Montgomery County Drug Task Force, the characteristics that appellant displayed indicated the potential influence of a controlled substance. Id. at 10. Accordingly, Officer Daniel requested that appellant submit to chemical testing, to which appellant agreed. Id. at 12. Appellant’s blood was drawn at approximately 9:15 a.m. Id.

Several hours after appellant was released from the hospital, appellant responded to the police department at Officer Daniel’s request. Appellant showed the officer proof of the medications he was currently taking and took prior to the accident. Id. at 18. In particular, appellant provided proof that he was currently prescribed Endocet. See “C-l.”

At the bench trial, Dr. Edward Barbieri, an expert in forensic toxicology at the National Medical Service Laboratory, testified on behalf of the Commonwealth. Id. at 21-24. Dr. Barbieri received appellant’s two blood samples on October 3, 2008, and performed a panel of narcotic analgesics the following day. Id. at 25-26. Dr. Barbieri explained the procedure and the method of the test, the results of which are documented in the report authored and signed by him on October 21, 2008. See “C-2”; (Bench trial 3/9/10 pp. 26-28). The report indicates the presence of Oxycodone in appellant’s blood sample at a concentration of 170 nanograms per millileter. Id. at 29. In significant part, the report reads, “[bjased on the concentration of Oxycodone found in this case, it can be stated with reasonable scientific certainty that if the individual showed signs of impairment, evidence of erratic driving, unusual demeanor, then this substance can be responsible.” See “C-2.” Endocet, for which appellant had a prescription, contains Oxycodone. Id. at 30.

It was also Dr. Barbieri’s opinion that the impairment as described by Officer Daniel is consistent with the concentration of Oxycodone found in appellant’s blood sample. Id. at 29. Dr. Barbieri also opined that the level of Oxycodone found in appellant’s blood, is typically a high amount of the drug. Id. at 30.

In reading the prescription label, Dr. Barbieri observed that the prescription called for two tablets by mouth every four hours as needed for pain. Id. Dr. Barbieri opined that if the Endocet was taken as directed, the Oxycodone level would not have been 170 nanograms per millileter. Id. at 30-31.

After the Commonwealth rested its case, appellant testified on his own behalf. Appellant testified as to the underlying reasons why he was prescribed Endocet. Id. at 34-36. Appellant also testified that he last took the prescribed dose of Endocet around 2 a.m. or 3 a.m., six to five hours before the accident occurred. Id. at 43.

At the conclusion of the trial, we found appellant guilty of driving under the influence and the summary offense of careless driving. Id. at 46.

On May 10, 2010, we sentenced appellant to a term of 72 hours to six months imprisonment for driving under the influence, and imposed a fine on the summery offense. (Sentencing 5/10/10 p. 5.)

ISSUES

I. Whether There Is Sufficient Evidence To Sustain Appellant’s Conviction for Violating 75 Pa. C.S. §3802(d)(2)

DISCUSSION

I. There Is Sufficient Evidence To Sustain Appellant’s Conviction for Violating 75 Pa.C.S. §3802(d)(2)

Appellant contends that where the impairing substance is a prescription medication, the Commonwealth is required to present expert testimony to establish a casual nexus between the amount of prescription medication found in the motorist’s blood and the effect of that amount of prescription medication on the motorist’s ability to safely drive. In support of this proposition appellant cites Commonwealth v. DiPanfilo, 993 A.2d 1262 (Pa. Super. 2010); Commonwealth v. Griffith, 985 A.2d 230 (Pa. Super. 2009) and Commonwealth v. Etchison, 916 A.2d 1169 (Pa. Super. 2007). See concise statement, issue 1(a).

On appeal, appellant argues that in this case the Commonwealth failed to establish a sufficient nexus between the prescription medication, i.e., 170 nanograms of Oxycodone per millileter, found in his blood and any impairment of his ability to safely drive at the time of the motor vehicle accident so as to find him guilty beyond a reasonable doubt of violating 75 Pa.C.S. §3802(d)(2). See concise statement, issue 1(b).

Also on appeal, appellant argues that Dr. Barbieri’s expert opinion was legally insufficient, and cites Griffith, in support of this contention. See concise statement, issue 1(c). Because all of appellant’s issues are interrelated we will address them simultaneously.

In DiPanfilo, our Superior Court reiterated its standard of review and the key elements of the substantive law in this area as set forth in Griffith as follows:

“As a general matter, our standard of review of sufficiency claims requires that we evaluate the record in the light most favorable to the verdict winner giving the prosecutor the benefit of all reasonable inferences to be drawn from the evidence.
“Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty, and may sustain its burden by means of wholly circumstantial evidence. Significantly, we may not substitute our judgment for that of the fact-finder; if the record contains support for the convictions they may not be disturbed. . . . Any doubt about the defendant’s guilt is to be resolved by the fact-finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn for the combined circumstances.” DiPanfilo, 993 A.2d at 1264 (citing Griffith, 985 A.2d at 233).

Section 3802(d)(2) of the Vehicle Code defines the circumstances under which an individual who has consumed controlled substances may not operate a motor vehicle. That section provides:

“(d) Controlled substances. — An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances: ...
“(2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive, operate or be in actual physical control of the movement of the vehicle.” 75 Pa.C.S. §3802(d)(2).

It is clear that DiPanfilo, Griffith and Etchison all set forth the “need for expert testimony in the area of prescription drugs” to establish a connection between the presence of a prescription drug in a defendant’s bloodstream and his inability to safely operate a motor vehicle, DiPanfilo, 993 A.2d at 1267. In reaffirming the need for expert testimony regarding prescription drugs, the DiPanfilo court explained that the “reasoning behind that holding stems from the fact that the side effects of prescription drugs may not be widely or publically known, particularly when they are used to treat an underlying medical condition.” DiPanfilo, supra.

In this case, the Commonwealth did present the expert testimony of Dr. Barbieri that explained to this court the side effects that 170 nanograms of Oxycodone per millileter can have. Dr. Barbieri stated that Oxycodone in this concentration would cause the impairment as described by Officer Daniel, Dr. Barbieri was present in the courtroom when Officer Daniel testified that at the scene of the accident he found appellant in a semi-conscious state and shaking. Appellant was confused as to where he was and to what had just happened. He had slurred speech and constricted pupils.

Additionally at trial, Dr. Barbieri testified that the amount of Oxycodone found in appellant’s blood is a high level of the drug, more than is normally seen from a therapeutic administration of Endocet. Further, Dr. Barbieri opined that that if taken as prescribed, it is unlikely that appellant’s Oxycodone level would be 170 nanograms per millileter.

Further, this court considered the NMS laboratory report authored by Dr. Barbieri in which he stated, “[b]ased on the concentration of Oxycodone found in this case, it can be stated with reasonable scientific certainty that if the individual showed signs of impairment, evidence of erratic driving, unusual demeanor, then this substance can be responsible.” See “C-2.”

Accordingly, this court was fully aware of the effects that 170 nanograms of Oxycodone per millileter had on appellant’s ability to operate a motor vehicle, Dr. Barbieri’s expert opinion was legally sufficient.

CONCLUSION

Based on the forgoing analysis, the May 10, 2010 judgment of sentence should be affirmed.

      .75 Pa.C.S. §3802(d)(2).

      . 75 Pa.C.S. §3714(a).

      . We took judicial notice that NMS is a laboratory certified and approved by Pennsylvania to determine a variety of intoxicants under the Vehicle Code. (Bench trial 3/9/19 p. 27.)

      . Appellant does not elaborate as to why Dr. Barbieri’s expert opinion was not legally sufficient; therefore, we have assumed that he contends that Dr. Barbieri’s opinion was insufficient for the reason that Dr. Barbieri did not establish a casual connection between the level of Oxycodone and the extent of impairment.


source: Caselaw Access Project

author: DYCH, J,

license: Public Domain

text:
    Rice v. 2701 Red Lion Road Associates

      Thomas J. Duffy Jr. for plaintiffs.

      Susan M. Dean for defendant Interlake.
    July 8, 2010
   DYCH, J,

On February 23, 2010, in the second trial in this matter, a jury awarded plaintiff Leroy Rice $12,400,000 for injuries he suffered on September 18, 2001, when defendant Interlake’s racking system collapsed and roughly a ton of frozen food product fell on him while he was operating a forklift in his employer’s Philadelphia warehouse. Interlake filed a motion for post-trial relief that I denied on May 4,2010. I granted Rice’s motion for delay damages and molded the verdict to $17,339.797.30. Interlake takes this timely appeal.

ISSUES RAISED ON APPEAL

Interlake’s Rule 1925b, Pa.R.A.P., statement of matters complained of on appeal contains twelve assignments of error, clustered as follows, asserting that I improperly:

(A) limited the scope of the proceedings in contravention of the Superior Court opinion remanding the matter for a new trial;

(B) failed to reopen discovery;

(C) admitted the testimony of plaintiff’s life care damages and vocational experts;

(D) granted nonsuit against Interlake on Interlake’s cross-claims against certain co-defendants;

(E) contravened both the doctrine of judicial estoppel and the coordinate jurisdiction rule when I dismissed Interlake’s cross-claims against certain co-defendants;

(F) denied Interlake’s motion seeking remittitur.

BACKGROUND

At the conclusion of the first trial in this matter in 2006, a jury found that Interlake’s racking system was a defective product and that the defect caused Rice’s injuries. The jury awarded Rice $10,600,000 which, upon plaintiff’s petition for delay damages, was molded to approximately $12,300,000. Interlake appealed to the Superior Court (767 EDA 2007), arguing, among other things, that the product was not defective, that Interlake was entitled to remittitur, that certain evidentiary rulings were erroneous, and that Interlake’s motion for judgment n.o.v. should have been granted. On June 26, 2009, the Superior Court issued an order and opinion remanding the matter for a new trial. Rice v. 2701 Red Lion Associates Ltd., docket no. 767 EDA 2007 (unpublished slip opinion). No party requested reconsideration or an en banc review. The case was assigned to me for all pretrial and retrial proceedings.

Guided by the Superior Court’s opinion, I limited the second trial to the issue of damages and to Interlake’s cross-claims against co-defendants that had settled with the plaintiff before the first trial. I so advised counsel in a letter dated September 20,2009. The parties would be allowed to introduce any evidence on liability on the cross-claims that they had introduced in the first trial, including the testimony of certain Interlake witnesses whose testimony had been precluded: lay witness Brian Tumulty (formerly with Rice’s employer, Refrigerated Food Distributors Inc, or RFDI) and current or former employees of the co-defendant corporations, namely, Chris Curtis (CurtiS ervice Inc.), Steven Davis (Warehouse Technology) and Raymond Goldberg (2701 Red Lion Road Assoc.). In addition, Interlake was now permitted to present the testimony of two experts previously excluded: Kathleen Murphy R.N. (life care), and Gary Barach (economist). Slip op. at 7. Plaintiff’s case on damages would be limited to the evidence he presented in the original trial. N.T., 02/22/10 at 5-7.

Contending that the Superior Court remanded for a new trial on all issues raised in the original trial, including the product defect claim, Interlake initiated certain appeals and petitions that the Superior Court either dismissed or quashed (4 EDM 2010, 335 EDA 2009 and 135 EDM 2009). I regained jurisdiction and the matter proceeded to trial in February of 2010. Rice testified on his own behalf, limiting his testimony to evidence of his pre-2006 damages, notably his prior health, the accident, his hospitalization, his treatment, and his status as a permanently disabled paraplegic. Id. at 153-83. Rice also introduced the videotaped testimony of Dr. Todd Albert and the parties’ stipulation as to what Rice’s economics expert, David Hopkins, would say if he were to appear at trial. Id. at 10, 119.

Over Interlake’s objection, I allowed Rice to introduce the expert testimony of Kathleen Corrigan, a registered nurse and “life care” planner who opined as to Rice’s lifetime medical needs as a result of the permanent, disabling crush injuries he sustained on September 19,2001. Id. at 72-97.1 also overruled Interlake’s objection to the testimony of Irene Mendelsohn, plaintiff’s vocational expert who opined that as of 2006 Rice was permanently incapable of work. Id. at 123-33.

Interlake presented no live lay witnesses on its cross-claims against “Red Lion” (the property owner of the warehouse where the accident occurred), Stokes (contractor that purchased the racking system from Interlake on RFDI’s behalf) and Schmidt (subcontractor to Stokes for installation of the racking system). Interlake also introduced no expert testimony of its own; it did not introduce the testimony of the previously precluded experts, Kathleen Murphy R.N., or Gary Barach. Instead, Interlake elected to rely on: its cross-examination of Rice and a reading from the transcript of Rice’s deposition taken before the first trial. N.T., 02/23/10 at 7-25. In addition, Interlake read to the jury selections from: the transcript of the prior trial testimony of Dr. Jeffrey Ketchman, plaintiff’s design expert {id. at 27-125); the deposition of Brian Tumulty, formerly RFDI’s chief financial officer {id. at 128-131); the prior trial testimony of Charles Daniel Willis, a former employee of defendant Stokes {id. at 132-44); and the prior trial testimony of Raymond Goldberg, owner or partial owner of 2701 Red Lion Associates and Refrigerated Foods Distribution Inc. and its predecessors. {Id. at 145-81.) Interlake had dropped all claims against co-defendants Warehouse Technology and Curti Service.

At the conclusion of defendant’s case and upon motion by the plaintiff, and after argument by counsel, I found that Interlake had failed to present sufficient evidence to support a prima facie case of negligence against any of the three co-defendants, namely Stokes, Schmidt and Red Lion, and I nonsuited Interlake on its cross-claims then. Id. at 182,193. Accordingly, the matter went to the jury solely on the question of damages.

DISCUSSION

A. The Limited Scope of the Second Trial Was Mandated by the Superior Court Opinion

Interlake’s chief complaint, the one that generated so much pretrial appellate activity, is that I did not permit re-litigation of the product liability claim on which Rice prevailed in the first trial. It argues that to the extent that the Superior Court opinion addressed Interlake’s right to present evidence on its “defenses,” it remanded for a complete new trial on all issues, and that I improperly limited the scope of the proceedings to damages and to the cross-claims.

Interlake contends that extant authority holds that limited re-trials are disfavored; Rice argues that this is not so. See e.g, Quinbyv. Plumsteadville Family Practice Inc., 589 Pa. 183, 210-11, 907 A.2d 1061, 1077-78 (2006) (holding that Superior Court’s erred in granting judgment n.o.v on a wrongful death claim and remanding for new trial on that claim and on damages); McNeil v. Owens-Corning Fiberglas Corporation, 545 Pa. 209, 216, 680 A.2d 1145, 1149 (1996) (holding that the Superior Court’s erred to the extent that it allowed a new trial on a lung cancer claim and affirming the grant of a new trial limited to non-cancer injury claims); Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672-74 (1985) (holding that Superior Court erred in reversing trial court’s order granting new trial and remanding for a new trial limited to apportionment of damages); Berkeihiser v. DeBartolomeo, 413 Pa. 158, 163, 196 A.2d 314, 315-16 (1964) (holding that Superior Court erred in granting judgment n.o.v and remanding for a new trial generally). This authority is instructive on a number of levels, but does not address my duty under Rule 2591, Pa.R.A.P., to “proceed in accordance with the judgment or other order of the appellate court.” After a close reading of the opinion, I determined that I was guided by the following rulings:

—it was error to exclude — on the grounds that Rice was prejudiced or surprised — -the six witnesses necessary to present negligence evidence against the settling defendants (slip op. at 2);
— it was error to exclude — on the grounds that it was “immaterial because it dealt with negligence” — expert testimony regarding disrepair of the racking system (id. at 13);
—in the absence of evidence that the plaintiff unreasonably delayed the case during a bankruptcy case, there was no error in calculating delay damages for that period of time (id. at 12);
■ — in view of the remand Interlake’s cross-claims, the verdict form in the second trial would now include the settling defendants (id. at 14);
—“to the extent that the now-allowed evidence” touches on intended use, substantial alteration, wear and tea [sic] and misuse of product,” new instructions would be required and Interlake’s claims regarding the jury instructions are moot (id. at 14-15);
—the presence at trial of the settling defendants was left to the sound discretion of the trial judge;
—there was no error in denying Interlake’s motion for a judgment n.o.v. on the product liability claim. (Id. at 15.)

In short, the Superior Court said that: (a) the trial court erred in precluding Interlake’s proof of the co-defendants’ negligence, that the negligence evidence should be admitted in the second trial, and that the co-defendants should appear on the verdict sheet; (b) Interlake’s complaints on jury instructions were moot; and (c) Interlake was to be permitted to adduce evidence that Rice caused delay that reduces his entitlement to delay damages. Those were the instructions to the trial court on remand and those are the instructions I followed.

No matter how I parse the Superior Court’s language, I cannot escape the conclusion that it faulted the trial judge’s rulings only because they thwarted Interlake’s legitimate efforts to point the figure of blame at its co-defendants, not because there was any error in the jury verdict on product liability. Regarding the excluded witnesses, the court was specific: the trial judge had imprudently accepted Rice’s claim of prejudice at the number of witnesses Interlake proposed to introduce; in consequence, the judge improperly “precluded Interlake from presenting evidence that would have allowed the jury to consider the claims against the settling defendants.” Thus, “Interlake should have been permitted to adduce evidence against the settling defendants and use the evidence the settling defendants had prepared to use against Rice’s claim.” Slip op. at 2-3. Regarding the six previously excluded witnesses — Tumulty, Curtis, Davis, Goldberg, Murphy and Barach — Rice could not claim surprise because Rice had actual notice of the substance of their testimony, had participated in their depositions and, as to the experts, had received expert reports. Id. at 7-8. So, Rice was on notice of Interlalce’s cross-claims and the fact that Interlake “was going to attempt to shift responsibility from itself to other defendants.” Id. at 9-10. Since Rice would suffer neither surprise nor prejudice from the “previously precluded evidence,” Interlake was now “entitled to a new trial on damages and to allocate responsibility.” Id. at 10. On the separate issue of the trial judge’s decision to preclude as “immaterial” some of Interlake’s expert evidence, the court declared that the evidence of “disrepair of the entire racking system” was specifically relevant to the “negligence aspect of the claim.” Id. at 13 n.6. In the only reference to the product case, the court said that the trial judge properly had given the issue to the jury.

I reject Interlake’s argument that even though the Superior Court said that the trial judge did not err in giving the product liability case to the jury (denying the judgment n.o.v. motion), it somehow also found that the verdict was compromised by errors in the negligence case and should be set aside. I am at a loss to find any such connection in the opinion and nothing in Interlake’s extensive briefing or oral argument persuades me that the court’s express rulings include, by inference, innuendo, indirection, or implication, the additional unstated instruction that product liability, as decided by the jury, was to be retried. Interlake has pointed to no authority that mandates reading such an intention into the Superior Court opinion that is otherwise silent on the subject. Guided by Rule 2591, I tried the case as it was presented to me.

B. There Is No Basis in Law or Fact for Reopening Discovery Upon Remand From the Superior Court

Interlake contends that I abused my discretion in refusing to reopen discovery and that as a result it was prejudiced in challenging Rice’s case on damages. It claims that it was entitled generally to conduct discovery on changes since the first trial in Rice’s circumstances. I denied this request, but I allowed Interlake when cross-examining Rice and his experts to explore what those changes might be. N.T., 02/22/10 at 5-7, 213-19. For whatever reason, Interlake declined to present any expert testimony of its own on how intervening developments may have affected the course of Rice’s indisputably permanent injuries after 2006.

I find no authority that mandates or prohibits a trial court to reopen discovery on a case that has been remanded. Nor do I find any authority for Interlake’s argument that Rule 4007.4, Pa.R.C.R, imposes a broad and general obligation to supplement prior disclosures without regard to specific requests. Accordingly, I am guided by the general rule that a trial court is given broad discretion to deal with discovery issues. Blouch v. Zinn, 350 Pa. Super. 327, 338, 504 A.2d 862, 868 (1986) (the trial court enjoys broad discretion over the conduct of discovery and will not be overturned absent an abuse of discretion). Further, facing no objection from plaintiff’s counsel or from me, Interlake in fact elicited post-2006 testimony from Rice and his experts, adequately apprising the jury that Rice had married, moved to Florida, fathered children, and was able to perform certain personal, custodial functions on his own. N.T., 02/22/10 at 213-19. Interlake offered no expert testimony, even though it was free to do so, to demonstrate to the jury how these or any other changed circumstances might have reduced Rice’s damages. Thus, even if Interlake could demonstrate that Rice had some duty to update discovery, under the circumstances of this case, it cannot show that it was prejudiced.

C. The Testimony of Plaintiff’s Experts Was Admissible As Competent and Relevant

Interlake says that I should have precluded as “speculative” the testimony of Corrigan (life care expert) and Mendelsohn (vocational expert) because these experts were not required to update their reports with post-2006 data concerning Rice and, since they had not, the reports were inadmissible.

Interlake does not claim that either Corrigan or Mendelsohn was unqualified. It claims only that since their reports are old, they are unreliable. This is a question of the weight, not the admissibility of the evidence. See Freed v. Geisinger Medical Center, 971 A.2d 1202, 1210 (2009) quoting Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 481, 664 A.2d 525, 528 (1995) (the weight to be given to an otherwise qualified expert testimony is a matter for the finder of fact). Interlake succeeded in letting the jury know when the expert reports were written and that the authors had not considered any post-2006 information about Rice’s medical, familial or vocational information. The jury was free to determine the significance of this evidence-.

Interlake also says that it was prejudiced because it “was not permitted to test [the experts’] assumptions and predictions with current, accurate testimony.” Page 13, reply brief of defendant Interlake regarding Interlake’s motion seeking post-trial relief. This argument is difficult to dissect because it begs the question whether Rice’s experts were current and accurate at the time they wrote their reports, which was the only issue before the jury. If Interlake wanted to demonstrate that Rice’s experts could not present “current, accurate testimony” in 2010 based on pre-2006 information, they were free to do so, and, in fact, did. Interlake was also free to present its own experts to opine on how reports based on old information are unreliable; it chose not to do so. It cannot now complain.

D. Interlake’s Evidence As to the Co-Defendants ’ Negligence Was Insufficient To Put the Questions of Duty, Breach and Causation to the Jury

Prior to trial Interlake voluntarily dismissed its claims against co-defendants CurtiService and Warehouse Technology. The remaining cross-claims required proof of a prima facie case of negligence against 2701 Red Lion Road, Schmidt and Stokes. See Quinby, supra at 199, 907 A.2d at 1070 (proponent of a negligence claim bears the burden of showing a duty, a breach of that duty, and that the breach proximately caused the harm suffered); Deputala v. Owens-Corning Fiberglas Co., 425 Pa. Super. 420, 424, 625 A.2d 676, 678 (1993) (a claim for contribution based on negligence requires proof of a prima facie case). At the close of Interlake’s case, I directed compulsory nonsuit against Interlake on its claims. My reason for doing so was that Interlake failed to present evidence sufficient to support a prima facie case of negligence as to any defendant. N.T., 02/23/10 at 193. Interlake charges that these decisions were an abuse of my discretion. I am persuaded otherwise.

I. Co-Defendant Schmidt

Interlake’s theory regarding Schmidt was that Schmidt negligently installed the defective racking system in 1979 and that this negligence caused Rice’s injuries. Interlake presented no live testimony against Schmidt. Instead Interlake elected to read to the jury from the transcript of the first trial the testimony of Rice’s design expert, Dr. Ketchman, and the testimony of Charles Willis, a former employee of Stokes, the pass-through seller of the racking system.

Interlake’s evidence was lacking in at least four respects. First, the matter required competent expert evidence and I found that Interlake had presented none. There was no dispute that the issue of racking installation required expert evidence. See Young v. PennDOT, 560 Pa. 373, 376-77, 744 A.2d 1276, 1278 (2000) (an expert is required where the skill and special training needed to show deviation from a standard of care or to show causation is beyond that of the ken of the ordinary layman). Interlake’s only proposed expert on the issues was Dr. Ketchman, plaintiff’s expert on product defect. I determined that Dr. Ketchman was not qualified to offer testimony concerning negligence in industrial racking installation, a determination that is supported by the fact that the witness himself denied having the requisite expertise. N.T., 02/23/10 at 115. Second, and in any event, Interlake elicited no testimony from Ketchman about standard of care for installing racking systems in 1979 and Ketchman gave no testimony to a reasonable degree of any professional certainty that Schmidt’s purported negligence caused Rice’s injuries. At most, he testified that if Schmidt had been negligent the accident would have occurred anyway. Id. at 193. Third, not only did Interlake fail to establish the requisite standard of care and causation, it did not even establish that Ketchman or Willis, a former employee of Stokes and the only other witness testifying about installation, knew with certainty how the system was installed or even that it was Schmidt that had installed it. Id. at 101-102,135-40. Amy jury finding based on this evidence would have been purely speculative.

2. Co-Defendant Red Lion

Interlake claims that Red Lion was liable for Rice’s injuries because it was the owner-in-possession when the accident occurred in 2001 or, if out-of-possession, was liable because it failed to make repairs of which it had notice. Finding that Interlake failed to adduce sufficient evidence to present the question of Red Lion’s liability to the jury, I nonsuited the claim. Id. at 193.

My reasons for nonsuiting the case against Schmidt/ Stokes apply equally to Red Lion, namely, that Interlake failed to establish the element of causation necessary to support aprima facie case of negligence. Therefore, even if Interlake could show that Red Lion owed a duty to Rice (and I think it could not), I do not need to reach the questions whether Interlake established which “Red Lion” entity owned the property in 2001 or whether that entity was liable as a landlord-in-possession or as a landlord-out-of-possession whose liability is triggered by some exception to the general rule that landlords are not liable for injuries to third parties on their leased property. Henze v. Texaco Inc., 352 Pa. Super. 538, 541, 508 A.2d 1200, 1202 (1986). There simply is no competent evidence on the record that would support a jury verdict that some failure to repair or correct the racking system or any other condition in the warehouse proximately caused Rice’s injuries. Nonsuit was proper.

E. Judicial Estoppel and Coordinate Jurisdiction

Cannot Be Invoked To Hold the Plaintiff to Averments in Submissions on Motions for Summary Judgment

Interlake contends that I erred as a matter of law in nonsuiting its claims against the co-defendants because the doctrines of judicial estoppel and coordinate jurisdiction operated to bar me from finding that there was insufficient evidence to go to the jury. Interlake says that when the co-defendants’ motions for summary judgment were denied, without opinion, before the first trial in 2006 the question whether there existed disputed issues of fact had been decided and I was bound therefore to submit the claim of negligence to the jury.

I know of no authority that supports this contention and Interlake’s extensive briefs do not change my mind. Interlake cites not one case that stands for the proposition that an order denying summary judgment operates at the end of trial to bar nonsuit that is otherwise proper. I do not know the bases for the orders denying the defendants’ motions for summary judgment in 2006 and, therefore, can draw no conclusions about the law or facts that they addressed. More important, the considerations of law and fact on a motion for summary judgment before trial and a motion to dismiss at the end of trial, after all the evidence is in, is different. The first, governed by Rule 1035.2, Pa.R.C.R, is warranted whenever there is “no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery.” Barnish v. KWI Building Company, 602 Pa. 402, 415, 980 A.2d 535, (2009). On a motion for nonsuit, however, the question is whether a plaintiff has established a right to relief, taking into consideration evidence that the plaintiff (in this case, Interlake) introduced at trial and any evidence favorable to the plaintiff (Interlake) that the defendant introduced. Rule 230.1, Pa.R.C.P.; Gigus v. Giles & Ransome Inc., 868 A.2d 459, 461 (Pa. Super. 2005). The only question I considered — whether the evidence adduced at trial was sufficient to go to the juiy — most decidedly had not been previously decided.

Interlake’s grievance that Rice switched sides, battling the co-defendants in the first trial and siding with them in the second, cannot be redressed by either coordinate jurisdiction or judicial estoppel. The doctrine of coordinate jurisdiction instructs judges of equal jurisdiction sitting in the same case to avoid overruling each other’s decisions. Ario v. Reliance Insurance Company, 602 Pa. 490, 505, 980 A.2d 588, 597 (2009). As I have said, I do not know what factors informed the judge’s decisions on the motions for summary judgment in the first trial. As I have also said, it does not matter because I was charged with applying a different legal standard to the facts as they were developed at trial. The same is true regarding judicial estoppel, which prevents a party to an action from assuming a position inconsistent with his or her assertion in a previous action, if his or her contention was successfully maintained. Black v. Labor Ready Inc., 995 A.2d 875, 878, (Pa. Super. 2010). I do not believe that the first trial was a “previous action” under the rule, but I do not need to answer that question because, even if it were, Rice was not “successful” at trial on his claims of negligence against the co-defendants. Interlake’s proposed application of judicial estoppel and coordinate jurisdiction, while inventive, goes too far.

F. Interlake Presents No Factual or Legal Basis To Set the Verdict Aside As Excessive or for Remittitur

Interlake contends that the verdict is excessive and unsupported by the evidence. Its principal argument is that the assigned errors discussed in this opinion operated to deprive the jury of any reasonable basis for calculating damages. Specifically, it says that if the trial had not been limited, if I had reopened discovery and if I had required updated expert reports, the award would not have been as large as it was. It argues it should get a new trial or that the verdict should be reduced to $6,400,000, the amount of Rice’s claimed damages, plus non-economic damages.

Even if I erred in the way I conducted the trial, these arguments lack merit. First, Interlake does not say how the award is excessive and it does not show how new or additional information would have produced a substantially different amount. On the claim of remittitur, it concedes Rice’s claimed damages and pleads with me only to award that amount, plus an amount for non-economic damages. This, apparently, is exactly what the jury did, and Interlake makes no case that it was so outrageous as to be set aside.

Second, I cannot say that the award is so unfair or unreasonable as to shock the sense of justice. Haines v. Raven Arms, 536 Pa. 452, 455, 640 A.2d 367, 369 (1994). The evidence was sufficient to support a jury finding that, as a relatively young man, Rice suffered catastrophic injuries that have left him permanently and painfully disabled, requiring personal assistance for the remainder of his life and leaving him totally unemployable. Under these circumstances, I cannot say that an award equal to two times Rice’s economic damages is excessive or exorbitant, nor can I find anything in the record that justifies substituting my judgment for the jury’s. Doe v. Raezer, 444 Pa. Super. 334, 347, 664 A.2d 102, 108 (1995). I certainly cannot find, nor does Interlake point me to, any evidence that the jury was “influenced by partiality, prejudice, mistake or corruption.” Haines, supra. Thus, the trial presents no basis reject the jury’s work.

CONCLUSION

I adhered faithfully to the language of the Superior Court opinion remanding this matter and, accordingly, directed a new trial limited to Rice’s damages and to Interlake’s cross-claims against the settling co-defendants. Interlake was not entitled to new discovery or to updated expert reports. In this regard, I properly exercised my discretion to limit the damages case to evidence available to the parties in the 2006 trial, while also permitting the jury to consider defendant’s post-2006 evidence of plaintiff’s “changed circumstances.” Finding that the defendant failed on its cross-claim to present competent expert evidence of co-defendants’ negligence, I properly entered nonsuit as to defendants Schmidt, Stokes and Red Lion. Finally, I find that the jury verdict was not so excessive as to warrant either a new trial or remittit. For these and the foregoing reasons, the judgment should be affirmed.


author: GEORGE, J,

text:
    Gettysburg Area School District v. EI Associates, Architects and Engineers PC

      C.P. of Adams County,
    no. 06-S-1017.

      Joel C. Hopkins, for plaintiff.

      Michael D. Reed, for defendant El Associates.

      Gregory S. Hirtzel, for defendant David Maines Associates.

      Victor P. Stabile, for defendant Bradco Supply Corp.

      Michael P Subak, for defendant Wohlsen Construction.
    July 21, 2010
   GEORGE, J,

This litigation arises from the construction of a new Gettysburg Area High School which was undertaken late 1995 and substantially completed on September 15, 1997. Subsequent to completion, the roof to the new building failed permitting water to encroach upon the interior of the building. El Associates, Architects and Engineers RC. acted as architects for the building project. Defendant David M. Maines Associates Inc. was retained by Gettysburg Area School District as general contractor. Defendant Bradco Supply Corporation provided the shingles used in construction of the roof. Defendant Wohlsen Construction Company contracted with the School District to install the shingles. The essence of School District’s claim is that El Associates failed to perform pursuant to their contract with School District to provide appropriate engineering services. In addition, School District claims that Bradco supplied substandard shingles while representing that they met contract specifications when, it is alleged, they did not. School District also theorizes that Bradco warranted that the shingles would perform pursuant to project specifications.

The issue currently before the court presents from a unique procedural history which originates with the commencement of this action in September 2006. At that time, School District issued a writ of summons against El Associates and Maines. On September 12, 2006, an amended writ of summons was issued joining Bradco as a defendant. On October 19, 2006, Maines filed a rule upon School District to file a complaint. The record reveals no further action until April 27,2007 when School District filed a second amended writ of summons joining Wohlsen as a defendant. Despite the issuance of writs naming four separate defendants, on June 27, 2008, S chool District filed a complaint naming only El Associates and Bradco as defendants. The complaint was met by preliminary objections from both El Associates and Bradco. The preliminary objections were partially granted and partially denied by order of this court dated August 4,2009. Among the preliminary objections which were granted, was the preliminary objection of Bradco to strike the complaint for failure to comply with the Pennsylvania Rules of Civil Procedure. Specifically, the complaint was stricken due to School District informally discontinuing the causes of action against Maines and Wohlsen in violation of Pa.R.C.P. 229 which provides that discontinuance of a cause of action is only proper with written consent of all parties or leave of court after notice to all parties.

Following ruling on the preliminary objections, School District filed an amended complaint on August 12,2009 which included all original parties in the caption but alleged factual allegations only against El Associates and Bradco. The causes of action against Bradco included breach of express warranty, breach of implied warranty, negligent misrepresentation, and fraudulent misrepresentation. Bradco timely filed a responsive pleading which included an answer, new matter, and a cross-claim against Maines and Wohlsen, In the cross-claim against Wohlsen, Bradco alleges Wohlsen contracted with the School District to perform certain work pursuant to contract specifications. Bradco then alleges that Wohlsen breached the terms of this contract and is solely liable for damage, if any, to School District or, in the alternative, is jointly and severally liable. Currently before the court are Wohlsen’s preliminary objections to the cross-claim of Bradco.

Wohlsen’s preliminary objections challenge the cross-claim upon legal insufficiency. Wohlsen argues that Bradco’s cross-claim does not state a cause of action because Bradco was neither a party nor a third-party beneficiary of the contract between the School District and Wohlsen. Wohlsen further suggests that the legitimacy of the cross-claim cannot be supported under a negligence theory as the same would violate the economic loss doctrine. Wohlsen finally claims that the cross-claim is improper to the extent it implies responsibility under a theory of indemnification and/or contribution.

In response, Bradco concedes that they are not pursuing a tort theory of liability in seeking to hold Wohlsen accountable. Additionally, Bradco withdraws any implication that Wohlsen is responsible under the cross-claim based upon a theory of indemnity and/or contribution. Thus, the pivotal issue is whether Bradco may properly allege against Wohlsen, as a cross-claim, the contractual liability of Wohlsen to School District in a cause of action initiated by School District which seeks to impose liability on Bradco, but not Wohlsen, under theories of breach of warranty and misrepresentation.

I will start my discussion with a review of the well recognized standards governing a court’s consideration of a preliminary objection in the form of demurrer. Appellate authority firmly establishes that in ruling on preliminary objections, the court must accept as true or well-pleaded allegations of material fact as well as all inferences reasonably deducible from those facts. Ballroom LLC v. Commonwealth, 984 A.2d 582, 586 (Pa. Commw. 2009). Preliminary objections will be sustained only where the case is clear and free from doubt. Rambo v. Greene, 906 A.2d 1232, 1235 (Pa. Super. 2006). Where a doubt exists as to whether a demurrer to the complaint should be sustained, the doubt should be resolved in favor of overruling the demurrer. R.W. v. Manzek, 585 Pa. 335, 888 A.2d 740 (2005).

The specific demurrer raised by Wohlsen requires application of Pa.R.C.P. 1031.1 (relating to cross-claims). That rule, recently adopted on March 23,2007, provides:

“Any party may set forth in the answer or reply under the heading ‘cross-claim’ a cause of action against any other party to the action that the other party may be
“(1) solely liable on the underlying cause of action or
“(2) liable to or with the cross-claimant 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 is based.” Pa.R.C.P. 1031.1.

Under new Rule 1031.1, the claims which may be asserted in a cross-claim are identical to those which serve as a basis for joining an additional defendant under revised Rule 2252(a). See Rule 1031.1 explanatory comment. Concurrent with the adoption of Rule 1031.1, the Supreme Court amended Pa.R.C.P. 2252 (relating to right to join additional defendants) to limit the rules governing joinder of additional defendants to the joinder of persons not already parties to the action. Thus, although the rules specifically designated different rules applicable to parties versus nonparties, there appears to be no substantive difference in their effect.

Instantly, Bradco files cross-claim against Wohlsen on the theory that Wohlsen is solely liable to School District on the underlying cause of action. Bradco further denies the existence of any warranties or representations related to the quality of the shingles. Additionally, Bradco claims that the damages caused to School District are the direct result of improper installation of the shingles by Wohlsen contrary to its contract with School District. In light of these allegations, interpretation of the use of the words “cause of action” in Rule 1031.1 is pivotal to resolution of the preliminary objections. A note to Rule 1031.1 defines the term “underlying cause of action” as referring to the cause of action set forth in the complaint. Otherwise, the rules are silent as to the meaning of this phrase. Appellate authority, on the other hand, offers some insight into the resolution of this issue.

In Derry Township School District v. Day & Zimmerman Inc., the Superior Court recognized that case law has defined “the plaintiff’s cause of action” to mean “damages or injuries” for which the plaintiff seeks recovery. Derry Township School District v. Day & Zimmerman Inc., 345 Pa. Super. 487, 493, 498 A.2d 928, 931 (1985), citing Staub v. Southwest Butler County School District, 263 Pa. Super. 413, 421, 398 A.2d 204, 207 (1979), affirmed, 489 Pa. 196, 413 A.2d 1082 (1980). In Derry Township, the Superior Court considered, under former Pa.R.C.P. 2252(b), whether a third party complaint was properly based on the theory that the third party was alone liable to the original plaintiff. Similar to the current factual background, the school district filed a complaint against its engineer claiming that the engineer prepared defective specifications for planned roof repairs and breached its contract to supervise the repairs. The engineer, in turn, filed a third-party complaint against the roofing company which installed the shingles used during the repair. The installer was joined on a theory that the engineer was a third-party beneficiary to the contract between the installer and the school district. The trial court found this theory to be unconvincing and sustained the installer’s demurrer to the joinder complaint. In overturning the trial court, the Superior Court distinguished between the meanings of plaintiff’s “cause of action” as compared to plaintiff’s “theory ofrecoveiy.” The Superior Court concluded that the school district’s injury flowed from a defective roof and, regardless of the respective theories of liability, the engineer’s joinder complaint against the installer was proper as arising from the same “series of occurrences.” In another decision, the Superior Court relied on similar reasoning. See Somers v. Gross, 393 Pa. Super. 509, 574 A.2d 1056 (1990). In Somers, the Superior Court instructed that accountants faced with a professional negligence action may properly join the plaintiff’s attorney as an additional defendant on the theory that the attorney is solely liable to the plaintiff. Importantly, the joinder complaint did not allege that the attorney was liable over to the accountant defendants nor did it allege that the attorney was jointly or severely liable with the accountant defendants. In permitting the joinder, the Somers court interpreted Rule 2252 broadly to construe “on the cause of action declared upon by the plaintiff” to mean “the harm of which the plaintiff complains.” Id. at 514, 574 A.2d at 1058. Thus, the Somers court rejected a literal interpretation of the rule in favor of a liberal construction in permitting any claim related to the original claim which plaintiff asserts against the original defendant. Id.

In light of the foregoing instruction, I see no reason at this point of the litigation to reach a contrary result. School District seeks damages against Bradco stemming from a defective roof on its new building. School District alleges that the roof was defective because of the installation of sub-standard shingles. In its cross-claim, Bradco essentially claims that School District’s damages were not caused by the actions of Bradco but rather due to the defective installation by Wohlsen. In essence, Bradco’s pleading does nothing other than seek to hold Wohlsen liable on the underlying cause of action. I find the same to be permissible under Rule 1031.1 of the Pennsylvania Rules of Civil Procedure. Accordingly, Wohlsen’s preliminary objections are dismissed.

ORDER

And now, July 21,2010, the preliminary objections of Wohlsen Construction Company are denied. Wohlsen Construction Company is directed to file an answer to the cross-claim pursuant to the Pennsylvania Rules of Civil Procedure.

      . The economic loss doctrine provides that economic losses may not be recovered in tort (negligence) absent physical injury or property damage. Spivack v. Berks Ridge Corporation Inc., 402 Pa. Super. 73, 78, 586 A.2d 402, 405 (1990).

      . Wohlsen’s preliminary objections also raise issue with the specificity of Bradco’s pleading. As Bradco’s pleading contains sufficient specificity to permit the parties and this court to consider the more critical issue discussed in this opinion, it is clearly sufficient to enable Wohlsen to prepare their defense. See generally, Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006).


author: RUEST, J,

text:
    Strauss v. Strauss

      C.P. of Centre County,
    no. 2009-1567.

      Rosadele Kauffman, for plaintiff.

      April C. Simpson, for defendant.
    July 21, 2010
   RUEST, J,

Plaintiff filed a complaint requesting primary physical custody on April 1, 2009, and defendant filed an emergency complaint for custody on the same date, docketed at no. 2009-1586. A hearing was held on April 28,2010 and the parties thereafter both submitted findings of fact and conclusions of law.

FINDINGS OF FACT

(1) Linda C. Strauss (Mother) and James A. Strauss (Father) are the parents of two minor children, namely Elbe Strauss, born October 21, 1998, and in the fifth grade at the time of hearing, and Clark Strauss, born December 5, 2000, and in the third grade at the time of hearing.

(2) The parties were married on December 31, 1997.

(3) Before their separation, both parents were involved in the child-rearing duties and activities.

(4) The parents separated when Mother moved from the house on March 31,2009, at which time both parents filed petitions for custody.

(5) Prior to their separation, the parents discussed arrangements for custody of the children following separation and attended mediation, but were unable to agree on a parenting plan.

(6) Since both parents appeared to be fit, the court entered a temporary custody order that the children would be in the custody of each parent on a rotating week-to-week basis with a period of partial physical custody on Wednesday night for the non-custodial parent in that week.

(7) Each parent resides in a well-kept and appropriate home in the State College Area School District and particularly where the children have been able to continue attending the Grays Woods Elementary School.

(8) Father currently resides in the marital residence which the family moved into when Elbe and Clark were very young; it is the only family home they have known.

(9) Father has been consistently employed as a senior lecturer of anatomy and physiology at The Pennsylvania State University, within the department of biology, since fab of 1992.

(10) Due to the nature of Father’s teaching responsibilities, he has flexible work hours which have allowed him to be available as needed for care of the children.

(11) Both children have attended Grays Woods Elementary School since kindergarten.

(12) Both children have continued to do excellent in school since the separation of their parents and the implementation of an alternating week shared custody schedule.

(13) Mother noted signs of stress in the children’s behavior and the school guidance counselor suggested counseling for the children, which Father resisted. Nevertheless, after Mother filed a petition for special relief he ultimately agreed and the children were seen by Dr. Neil Hemmelstein for a period of time.

(14) Dr. Hemmelstein prepared a report dated April 25, 2010, which was offered into evidence by Father as exhibit 4, indicating that he saw both children for individual psychotherapy on six occasions between September 2 and October 28, 2009. The report of Dr. Hemmelstein indicated that there “were no ongoing behavioral concerns present that required continuing regularly scheduled appointments.”

(15) A custody evaluation was conducted by Dr. Arnold Sheinvold by court order. His process for the custody evaluation included a total of 15 interviews with the parents and the children. Additional components of his evaluation included parent-child observations, psychological testing, a home visit, completion of parenting report cards by the children, and completion of parenting reference forms by individuals selected by each parent.

(16) After conducting a thorough custody evaluation, Dr. Sheinvold reached the conclusion that it was in the best interest of Elbe and Clark Strauss that they remain in the shared physical and legal custody of their parents. Dr. Sheinvold also recommended the use of a parenting coordinator and further recommended that both parents pursue individual therapy.

(17)Dr. Sheinvold did not consider the custody dispute between the parties to be a high conflict case and he did not identify any open hostility between the parents.

(18)Dr. Sheinvold based his recommendation for shared legal and physical custody upon several factors: that both parents have had consistent involvement with the children throughout their lives; that both parents trusted each other to care for the children; that the children are attached to both parents; that both parents have good parenting styles. He was unable to identify any negative psychological factors for either parent during his review.

(19) Dr. Sheinvold described the children as being very bright and resilient which he viewed as a good combination for a shared custody situation. He considered that the children were able to articulate a desire to continue to spend equal time with both parents.

(20) The area of major disagreement between the parents has been on the enrollment of children in extracurricular activities. Mother desires the children to have a fairly rigorous schedule of athletic activities. Father has concerns about the children being over-scheduled with sports activities.

(21) Dr. Sheinvold also recommended that Mother and Father attend child-centered co-parenting counseling or agree to use a parent coordinator to resolve their scheduling conflicts with regard to the children.

CONCLUSIONS OF LAW

(1) The paramount concern in child custody cases is the best interest of the child. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992).

(2) The determination of what is in the best interest and welfare of the child is based on consideration of all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being. E.A.L. v. L.J.W, 443 Pa. Super. 573, 662 A.2d 1109 (1995).

(3) Each child custody matter is unique and to be decided on a case-by-case basis according to the best interests of the particular child involved, without presumptions or mechanically applied rules. Johnson v. Lewis, 870 A.2d 368 (Pa. Super. 2005).

(4) In making an order for custody, the court shall consider which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the other parent and the child. 23 Pa.C.S. §5303(a)(2).

(5) “Shared custody” is an order awarding shared legal or shared physical custody, or both, of a child in such a way as to assure the child frequent and continuing contact with and physical access to both parents. 23 Pa.C.S. §5302.

(6) Four factors to consider in deciding whether to order a shared physical custody schedule are: (a) both parents must be fit, capable of making reasonable child rearing decisions and willing and able to provide love and care for the child; (b) both parents must evidence a continuing desire for active involvement in the child’s life; (c) both parents must be recognized by the child as a source of security and love; and (d) a minimum degree of cooperating between the parents must be possible. Wiseman v. Wall, 718 A.2d 844, 848 (Pa. Super. 1998), citing Hill v. Hill, 422 Pa. Super. 533, 619 A.2d 1086 (1993). Yates v. Yates, 963 A.2d 535 (Pa. Super. 2008).

(7) While a trial court is not required to accept the conclusions of an expert witness in a child custody case, it must consider them, and if the trial court chooses not to follow the expert’s recommendations, its independent decision must be supported by competent evidence of record. M.A.T. v. G.S.T., 998 A.2d 11 (Pa. Super. 2010).

CONCLUSIONS

The facts established at the custody proceeding of April 28,2010 demonstrate that the best interest of these children will be served by continuing shared legal custody and the current alternating week shared physical custody schedule. This arrangement has been in place by court order since April 3, 2009. The children have adapted to this arrangement and appear to be doing well. Dr. Arnold Sheinvold performed a thorough custody evaluation and concluded that the current shared legal and physical custody arrangement is in the best interest of the children, which he supported by well-reasoned analysis.

Both parents are fit and capable and have evidenced a continuing desire to stay actively involved in the lives of their children. Both parents are recognized by their children as a source of security and love. More than a minimum degree of cooperation between the parents has been established as shown by their ability to make adjustments to the children’s schedules to best benefit the children without seeking court intervention. For all the reasons set forth herein, shared legal and physical custody is in the best interests of the Strauss children.


author: MILLER, J.,

text:
    Caucci v. Chelsea Pocono Holdings LLC

      C.P. of Monroe County,
    no. 10776 Civil 2007.

      Scott M. Wilhelm, for plaintiff.

      Charles Jay Bogdanoff, for defendant Chelsea Pocono Holdings.

      Thomas P. Clark, for defendants Robert J. Felins and F & F Paving.
    June 23, 2010
   MILLER, J.,

On December 29,2005, the plaintiff, Alfred Caucci, allegedly slipped and fell on patch of ice while exiting his 2004 Chevrolet Silverado pickup truck in the parking lot at the Crossings Outlet Stores in Tannersville, Pennsylvania. Defendants, Chelsea Pocono Holdings LLC and Chelsea Pocono Finance LLC are the owners and managers of the premises.

Plaintiff filed suit against the defendants on December 5,2007, alleging a dangerous and defective condition on the property. He also alleges that the defendants, Robert J. Felins and F & F Paving Inc., were negligent in failing to maintain the subject property in a safe condition.

The defendants, Robert J. Felins and F & F Paving Inc., now move for summary judgment against plaintiff and defendants, Chelsea Pocono Holdings LLC and Chelsea Pocono Finance LLC.

Plaintiff does not oppose defendants’ motion for summary judgment.

Pa.R.C.P. 1035.2 sets forth the criteria by which motions for summary judgment will be adjudicated. The Pennsylvania Rules of Civil Procedure provides that any party may move for summaiy judgment:

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. 1035.

The party moving for summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Drapeau v. Joy Technologies Inc., 447 Pa. Super. 560, 563, 670 A.2d 165, 167 (1996), allocatur denied, 546 Pa. 644, 683 A.2d 883 (1996). (citation omitted) Pa.R.C.P. 1035.2 permits a trial court to dismiss an action after the close of pleadings by summary judgment where no genuine issue of fact exists as to an element of a cause of action. Wilson v. El-Daief 600 Pa. 161, 170-71, 964 A.2d 354, 359 (2009). The moving party has the burden of proving that no genuine issues of material fact exist. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979). The court must view the record in the light most favorable to the non-moving party and must resolve all doubts as to the existence of a genuine issue of material fact against the moving party. Id. at 204, 412 A.2d at 468-69. Thus, summary judgment is proper only when the entire record demonstrates that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. Id. Under Pa.R.C.P. 1035.2(b) the non-moving party may not rely solely on their pleadings, but must show sufficient evidence of an issue essential to the case in order to survive summary judgment. Shepard v. Temple University, 948 A.2d 852, 856 (Pa. Super. 2008).

In order to maintain a negligence action, plaintiffs must prove the following: (1) That the defendant had a duty to conform to a certain standard of conduct; (2) That defendant breached that duty; (3) A casual connection between the breach and the injury in question; and (4) Actual harm. Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. 2005).

Although the issue of negligence is a question for the jury, the mere occurrence of an accident does not establish a defendant’s negligence. Stong v. Commonwealth, 817 A.2d 576, 584 (Pa. Commw. 2003).

Initially, we note that since plaintiff has not opposed the defendants’ motion for summary judgment it shall be granted in favor of defendants and against plaintiff. However, the defendants, Chelsea Pocono Holdings LLC and Chelsea Pocono Finance LLC, (Chelsea) oppose defendants’ summary judgment. Defendants contend that the motion for summary judgment is appropriate because Chelsea has failed to offer any evidence supporting its claim of negligence against it. In opposition, Chelsea contests the entry of summary judgment by arguing that material issues of fact exist. In viewing the record in a light most favorable to the nonmoving party, we find that Chelsea relies upon mere conclusions and has failed to present any evidence to support its claim against defendants.

The parties engaged in discovery, including depositions of the parties. The uncontested facts show that on or about October 7, 2005, the defendants entered into a snow plowing agreement with Chelsea Pocono Finance LLC, (Chelsea Finance) which was in effect at the time the plaintiff slipped and fell on December 29, 2005. Pursuant to the agreement, F & F Paving Inc. would not begin snowplowing or snow removal unless specifically requested by Chelsea Finance. (Snow plowing agreement §1.1) Moreover, upon completion of the snow removal and snow-plowing work it was to be inspected by personnel on behalf of Chelsea Finance. (N.T. deposition— Smith, 4/21/2009 at pp. 26-28.) Defendants argue that they were not allowed to perform any sort of snow removal operations without the explicit authorization of Chelsea Finance. The evidence adduced at deposition indicates that the last time before plaintiffs fall that defendants were called for snow removal was December 16,2005. (N.T. Smith4/21/2009 atp. 31.) Thirteen days elapsed between the time that defendants were on site for snow removal and the time that plaintiff fell. Based upon this, defendants allege that they had no duty to perform any maintenance or owed any duty to the plaintiff at the time of his fall.

Chelsea does not contest that defendants were not requested and did not conduct any snowplowing between December 16,2005 and January 1,2006. Chelsea argues that although defendants did not perform snow removal during this 13-day interval, its personnel only performed spot checks upon completion of the snowplowing and defendants filed to remove all the snow as required. (N.T. Smith 4/21/2009 at p. 31.) Chelsea alleges that the plaintiff fell because defendants failed to remove all snow on the asphalt causing melting and refreezing.

Mark Davies, operation manager for Chelsea, was deposed and stated that although the snow was not removed from the parking area surface, it was incumbent upon Chelsea to call defendants when snow removal was needed. (N.T. Deposition — Davies 10/20/2009 atp. 30.) He testified that he and his staff walk the center on a constant basis to perform what needed to be done to keep the snow and ice off of parking areas. (N.T. Davies 10/20/2009 at pp. 30-32.) A review of the depositions and the arguments submitted by the defendants and Chelsea established that defendants were not called to perform snow removal duties from December 16,2005, until January 1, 2006. (N.T. Smith 4/21/2009 atp. 31.) Chelsea also argues that the supervisor for F & F Paving, John Smiley, admitted snow was not completely pushed off the parking area where the plaintiff allegedly fell. (N.T. deposition — Smiley 10/20/2009 at p. 13.) However, he also stated that it was over 13 days after F & F had plowed. (N.T. Smith 10/20/2009 p. 31.) Although Chelsea argues that F & F failed to remove the snow completely off the parking spaces where plaintiff fell and is therefore liable if plaintiff succeeds on his negligence action, it has failed to present sufficient evidence of this essential issue. Chelsea has not presented any evidence which places a material fact at issue. Moreover, they have presented no evidence that defendants had any duty towards plaintiff at the time of his fall.

After reviewing the record in the light most favorable to Chelsea, we will grant defendants’ motion for summary judgment. The contract between the defendants and Chelsea makes Chelsea responsible for contacting defendants for any snow removal. The testimony of Chelsea’s operations manager indicates it was Chelsea’s responsibility to inspect before defendants could leave the job site. The operations manager of Chelsea stated that he and his staff walk the center on a constant basis and perform what needs to be done to keep everything clear of snow and ice. Moreover, for 13 days Chelsea employees or representatives allegedly walked the site and failed to call defendants regarding any problems or request additional snow removal. We find there is simply no duty on defendants to perform any maintenance where they have not been called to do so under the contract. Accordingly, we will grant the defendants’ motion for summary judgment here.

Based on the foregoing, we enter the following order:

ORDER

And now, June 23, 2010, the motion for summary judgment of defendants, Robert J. Felins and F & F Paving Inc., against the plaintiff, Albert Caucci, and defendants, Chelsea Pocono Holding LLC and Chelsea Pocono Finance LLC, is granted.


author: LASH, J,

text:
    Dando v. Berks County Board of Assessment Appeals

      C.P. of Berks County,
    no. 09-13238.

      Scott L. Huyett, for appellant.

      Edwin L. Stock, for appellee.
    August 5, 2010
   LASH, J,

The appellant, Theodore E. Dando D.M.D., (landowner), has filed an appeal from the decision entered by the Berks County Board of Assessment Appeals assessing real estate owned by landowner at $80,000.00, effective January 1, 2010. A de novo trial was heard on the appeal on August 3, 2010. The court enters the following findings of fact:

I. FINDINGS OF FACT

(1) The appellant, Theodore E. Dando, D.M.D., (landowner), is an adult individual who resides at 705 Wyoming Avenue, Wyomissing, Berks County, Pennsylvania 19610.

(2) The appellee, Berks County Board of Assessment Appeals is located at the Berks County Services Center, Third Floor, 633 Court Street, Reading, Berks County, Pennsylvania 19601.

(3) Landowner is the owner of real estate approximately 1.25 acres in size, improved with a structure formerly used as a church, located at 441 State Street, in the Borough of Hamburg, Berks County, Pennsylvania, in the Hamburg Area School District (parcel no. 1). Parcel no. 1 is identified by parcel no. 46-4495-17-10-2166.

(4) On or about September 15, 2008, the former owner, the Roman Catholic Diocese of Allentown (Diocese), transferred parcel no. 1 and an adjoining property (parcel no. 2) to landowner for the aggregate sum of $330,000, with the price set by the Diocese at $40,000 for parcel no. 1 and $290,000 for parcel no. 2.

(5) Landowner’s purpose in purchasing the two parcels was to utilize parcel no. 2 as a dental office with an adjoining parking area.

(6) Landowner had no interest in parcel no. 1, but purchased it as a condition to the purchase of parcel no. 2, as the Diocese declined to sell parcel no. 2 separately.

(7) The building on parcel no. 1 had been used as a church, but that use was abandoned in approximately 2001, and has stood vacant since that time.

(8) Sometime prior to the sale of parcel no. 1 to landowner, the Diocese removed the pews, altars and other amenities contained inside the church building.

(9) The church building never had restrooms. There is plumbing, used for the purpose of providing water to a sink for use by the priests.

(10) There are three entrances to the church. The front entrance from State Street represents the main church entrance. There are 23 steps to the front door and two additional steps inside the vestibule to the main church room. There is a side entrance which also has 23 steps and two steps on the inside, which opens into an area behind where the altar used to stand. The third entrance provides access to the basement.

(11) The heating and cooling systems have not been operated in the building for some time. Overall, the building and steps are in a state of disrepair.

(12) Parcel no. 1 is located in the “Village Central” zoning district for the Borough of Hamburg.

(13) Prior to 2009, the building was exempt from taxation based on its status as a Catholic church. The status was changed to taxable for the 2010 tax year. The Assessment Office set the initial assessment for the property for 2010 at $161,400.

(14) On August 25, 2009, landowner filed an appeal to the board requesting a reduction in the assessment,

(15) Following a hearing on September 21, 2009, the board issued its final notice, dated September 22, 2009, reducing the assessment from $161,400 to $80,000.

(16) On or about October 20, 2009, landowner filed the within appeal to the Court of Common Pleas of Berks County.

(17) The common level ratio for Berks County for the year 2010 is 677.

II. DISCUSSION

The issue before this court is the fair market value of the premises. Actual or market value is defined as “the price which a purchaser, willing but not [obligated] to buy, would pay an owner, willing but not [obligated] to sell, taking into consideration all issues to which the property is adapted and might in reason be applied.” F & M Schaeffer Brewing Company v. Lehigh County Board of Appeals, 530 Pa. 451, 457, 610 A.2d 1, 3 (1992).

The board did not present any evidence, relying on the presumption that the board’s assessment of $80,000 was valid. Thus, the question before this court is whether the evidence presented by landowner was sufficient to overcome the assessment’s prima facie validity.

Landowner provided no expert testimony, relying on his own opinion as owner that the fair market value of parcel no. 1 was $25,000. Landowner believes that the only use for the property would be limited access storage. He testified that the cost to raze the building to free the parcel for a new use was prohibitive. Landowner also offered no other opinion on a reasonable use, given the building’s deteriorating condition and the absence of restroom facilities.

This court agrees that landowner’s options are extremely limited. As the building provides indoor open space, it certainly could be used for storage purposes, however, access to the inside area is impractical, requiring storage items to be carried up steps by hand or by using a hand truck. The building could also be used as a church or reception hall, but this would require extensive renovations, as well as construction of restroom facilities. There may also be an issue with parking, unless the owner of parcel no. 1 could share the parking area designated by landowner for his dental office. Third, the church building could certainly be razed, making parcel no. 1 available for any use permitted under the zoning ordinance. As stated, this would also require a significant expenditure.

We find that landowner’s testimony on the condition of the property sufficiently overcomes the presumption of validity of the board’s assessment. The assessment of $80,000 represents a fair market value on parcel no. 1 of $118,168.38. We believe that landowner would be hard pressed to find a buyer who would be willing to pay that sum to him to purchase parcel no. 1.

That being said, finding an appropriate value for parcel no. 1 is daunting. Both of the other figures provided, landowner’s opinion of $25,000 and the designated purchase price in 2008 of $40,000, are not supported by any competent evidence and appear to be arbitrary values.

In determining actual value, three approaches to valuation are generally used: cost (reproduction over placement, as applicable, less deprecation in all forms of obsolescence), comparable sales, and the income approach. 72 P.S. §5020-402, 5348(d), F & M Schaeffer Brewing Company, 530 Pa. at 456-57, 610 A.2d at 3. These methods are unavailable here. The income approach would be based on speculative data. The cost approach is unwieldy, given the extensive obsolescence of the building. No comparable sales were presented by either party and it is unlikely that such sales could be identified, at least without making extensive adjustments to account for the differences between the comparables and parcel no. 1.

We note that in some cases, such as those involving conflicting experts who provide competent opinions, the court is permitted to determine fair market value to lie somewhere between the values reached by the competing experts. Jackson v. Board of Assessment Appeals of Cumberland County, 950 A.2d 1081, 1086 (Pa. Commw. 2008). We deem it appropriate to extend that method to this case. Although the accuracy of both the board’s assessment and landowner’s opinion is seriously in question, splitting the difference between these two values appears to provide the only method to achieve a legitimate result, particularly since this court cannot identify any other appropriate foundation for a decision. Averaging the fair market value found by the board of $118,168.38 with landowner’s opinion value of$25,000, we reach a fair market value of $71,584.19. Applying common level ratio, the assessment for 2010 would be $48,462.49, which this court rounds off to $48,500. We enter the following order:

ORDER

And now, August 5, 2010, upon consideration of the within appeal and after a de novo trial held, it is ordered that the actual market value of the property owned by appellant, Theodore E. Dando D.M.D., situate in the Hamburg Area School District, with an address of 441 State Street, Hamburg Borough, Berks County, Pennsylvania, identified by parcel no. 46-4495-17-10-2166, is set at $71,584.19. The common level ratio for tax year 2010 being .677, the assessed value for tax year beginning January 1,2010 for county and township taxes and beginning July 1, 2010 for school district taxes shall be rounded off to $48,500.


author: McGINLEY, J.,

text:
    Carl Bales Excavating Inc. v. Strawberry Hill Associates LP

      C.P. of Lehigh County,
    no. 2007-C-3991.

      Konrad B. Jarzyna, for plaintiff.

      Charles E. Shoemaker, Jr., for defendant.
    August 4, 2010
   McGINLEY, J.,

Redles I Irrevocable Trust appealed our May 17, 2010 order denying its motion for post-trial relief. We write this opinion to explain our reasons for that order.

Redles, the counterclaim plaintiff, brought suit against Carl Bales Excavating Inc., the counterclaim defendant, for trespass for the destruction of a stand of trees on property owned by Redles. A non-jury trial was held on January 5 and 6 of 2010. On January 8, 2010, we found in favor of Redles and against Bales in the amount of $0. A footnote in the verdict stated:

“The proper measure of damages is ‘the decrease in fair market value of the property.’ Richards v. Sun Pipe Line Co., 431 Pa. Super. 429, 636 A.2d 1162 (1994). Counterclaim plaintiff has failed to make out the elements which might support the measure set forth in Restatement 929. The removed trees did not affect the counterclaim plaintiff’s privacy, merely his conditional anticipation of privacy in some unspecified future.”

Redles filed a motion for post-trial relief. The parties briefed the matter, argument was heard and we denied Redles’ motion on May 17, 2010. Redles appealed that order.

Although Redles raises eight matters complained of on appeal, they all stem from whether the proper measure of damages was applied in this case. The issue is whether the proper measure of damages was the difference in fair market value before and after the trespass or the cost of restoration.

FACTS

Bales is engaged in the business of excavation and related ground clearing. (Stipulation, para. 1.) Redles is the owner of a parcel of approximately 17.96 acres in Upper Saucon Township, Lehigh County, Pennsylvania. (Stipulation, para. 2.) The Redles Trust became the owner of the property in January 2007 when title to the property was conveyed to the tmst from Kenneth A. and Linda J. Redles, settlers who had owned the property since October of 1996. (Stipulation, para. 3.) In July of 2006, Strawberry Hill Associates LP, acting as the agent of Redles, contracted with Bales to install four sewer laterals on the Redles property. (Stipulation, para. 5.) Bales completed that work and the parties have stipulated that Strawberry Hill Associates LP is indebted to Bales for the remainder of the contract price in the amount of $6,000. (Stipulation, para. 7.)

In 2006, after request of Upper Saucon Township, Mr. and Mrs. Redles agreed to grant a 30-foot wide easement through a forested portion of their property to permit the installation of sewer lines for the benefit of a property adjoining the Redles5 property. (Stipulation, para. 8.) In consideration for such easement, the township agreed that it became contractually obligated to restore the burdened property to its prior condition, specifically to replant trees in the wooded area in kind to those removed during the work. (Stipulation, para. 11.) Carl Bales Jr., the company coordinator of Carl Bales Excavating Inc., agreed during his testimony that the right-of-way was 30 feet wide, but his company cleared an area of 40 to 55 feet in width. (N.T. 1-6-10, p. 32.)

Gerald Newnam, the nursery manager of Green Tree Nurseries, testified regarding the proposal he had drafted after the trespass to reforest the property cleared in excess of the 30 feet. He testified the property would need the following:

“40 deciduous trees, hardwood trees, various species of what we have on the nursery such as red native, red maples, native oak, native ash, native elm trees. And the cultivars to fill in the gaps of what material we do have in the nursery. We would have to use some cultivars which would be — like a red sunset is a cultivar of the native red maple.
“And your native species, I just went over, the seven to 10-inch caliper refers to the size of the trees that will be planted in that place. Park or conservation-grade, again, giving it as much of a natural look that it originally had before the trees were cut down or were knocked down or whatever they were. Then it has a native average at $2,600 per tree times 40, the number of trees to be replaced plus the tax.” (N.T. 1-5-10, p. 26.)

The total estimate to restore the property was $135,839. (N.T. 1-5-10, p. 28.) He further testified about how the restored portion would look compared to the adjoining woods:

“Well, you can never get it back to specifically what it was. We can get it close. Once the trees establish themselves, it should start to blend in within a few years. It will probably look — if you were just glancing, passing by, maybe in ten years, you wouldn’t even know there was any damage in there at all. (N.T. 1-5-10, p. 26-27.)

Discussion

The law regarding the proper measure of damages has been set forth in Richards v. Sun Pipe Line Company, 431 Pa. Super. 429, 636 A.2d 1162 (1994). In Richards, the homeowners brought an action to recover damages for permanent injury caused to their property when a company removed and trimmed trees in order to inspect and maintain a gas pipeline running across their property. The court stated that “the measure of damages for injury to property, where the injury is deemed to be permanent, is the decrease in the fair market value of the property.” Id. at 433, 636 A.2d at 1163-64. (citations omitted) The Richards court, quoted our Supreme Court, which stated:

“[W]e have on numerous occasions decided that, when standing timber is destroyed, the damages therefor are to be measured by determining the difference in the value of the land, upon which the trees grew, before and after the injury complained of. There may be exceptional instances, when the evidence shows the trees in question to have had a selling value separate and apart from the land (for example, trees growing on a nursery farm), where a different rule would apply; but, under the facts at bar, there can be no doubt that the proper way to determine the pecuniary damage suffered by the destruction of plaintiff’s trees was through the application of the ordinary rule just referred to ....” Id. at 433-34, 636 A.2d at 1164, quoting, Ribblett v. Cambria Steel Company, 251 Pa. 253, 259, 96 A. 649, 652 (1916). (citations omitted)

Redles, like the homeowners in the Richards case, relied on Gross v. Jackson Township, 328 Pa. Super. 226, 476 A.2d 974 (1984) and Bell v. Shetrom, 214 Pa. Super. 309, 257 A.2d 323 (1969), for the proposition that:

“We have grave doubts that damage to trees can be ascertained only by showing the before and after values of the land on which the trees were growing .... Whatever approach is most appropriate to compensate for the harm should be used, including perhaps the intrinsic value of the trees to the then existing use of the land or the cost of replacement or restoration. Even if the before and after value of the land is an appropriate measure of damages, evidence would be competent as indicative of the diminution of the value of the land.” Gross, supra at 229, 476 A.2d at 976, quoting Bell, supra at 312, 257 A.2d at 324.

The Richards court distinguished Gross and Bell because the damage in those cases was not permanent in nature. “In Gross, supra, the plaintiffs intended to replant the hedges and shrubs that were destroyed. Therein, the intrinsic, i.e., actual, value of those plants was relevant to determine the cost of the restoration (or repair) which is the proper measure of damages when the injury is not permanent.” Richards, supra at 435, 636 A.2d at 1164.

The court went on.

“We note, however, that to the extent supra, may be interpreted as permitting the use of intrinsic value of trees as indicative of the diminution in the value of the land, such an interpretation is not only based upon mere dicta, but also is in direct conflict with Supreme Court precedent. See Sgarlat Estate v. Commonwealth, 398 Pa. 406, 414, 158 A.2d 541, 545 (1960) (“It is the fact of such loss, not its actual statement in dollars that is the permissible element affecting damage.”); Rate v. Shoenberger, 213 Pa. 252, 256, 62 A. 854, 855 (1906);Ribblett, supra; Schlichtkrull v. Mellon-Pollock Oil Co., 301 Pa. 553,152 A. 829 (1930). Thus, we restate herein the long-established rule that, when the damage to property is permanent, the measure of damages is the reduction in fair market value of the land. Rabe, supra. To the extent that the trees on [homeowners’] property were destroyed, it is the fact that the trees were destroyed that was relevant to determining damages, not the actual dollar value of those trees since those trees did not have a selling value separate and apart from the land. Ribblett, supra.” Id. at 435-36, 636 A.2d at 1165. (emphasis in original)

In applying the Richards decision to this case, it is necessary to first determine whether the injury to the subject property was permanent in nature. Although the permanent nature of the injury in Richards was not disputed because the trees could not be replaced within the easement, the court went on to state that even if the trees were replaced it would be 25 to 30 years before they attained the same stature as those removed. Id. at 435 n.1, 636 A.2 dat 1164 n.1.

In this case, Mr. Newnam testified that they are attempting to replace natural forestation; natural growth that has been there for probably centuries. (N.T. 1-5-10, pp. 23-24.) He testified that restoration was impossible because it is old-growth trees versus new-growth trees. (N.T. 1-5-10, p. 27.)

We find that the removal of the trees outside of the easement constitutes permanent injury to the property. It is impossible to replace what was lost. The exact number of trees is unknown, and although an attempt could be made to make the property look similar to how it existed prior to the trespass, it would not be exact and it would take many years for the trees to blend in and reach the proper height.

Because we find the trespass caused permanent injury to the property, the proper measure of damages is the decrease in the fair market value of the property. Richards, supra. There was absolutely no evidence presented as to the fair market value of the property. Redles failed to establish the fair market value of the property and how the value of the property decreased as a result of the removal of the trees outside of the easement.

Instead, Redles elected to rely on the Restatement (Second) of Torts §929 in an attempt to recoup restoration damages. We found no authority that the Restatement (Second) of Torts §929 has been adopted as the measure of damages in Pennsylvania and we decline to apply that measure of damages to this case.

We note that in Redles’ attempt to establish damages pursuant to the Restatement, and specifically in attempting to establish his personal reason for restoring the original condition, Mr. Redles testified to the anticipated privacy the property would provide to his future home. We did not find Mr. Redles’ testimony credible and specifically did not believe his testimony that he did not plan to subdivide his property. (N.T. 1-5-10, pp. 95-96.) The installation of four sewer laterals in the excavated area is evidence of his intent to subdivide.

Because Redles only provided evidence regarding the cost of restoration, and not the decrease in fair market value of the property, we were unable to award damages.

      . The verdict also found in favor of Bales and against Strawberry Hill Associates LP in the amount of $6,000 plus interest and costs for an unpaid bill for excavation work based on the parties’ stipulation.

      . We note that the finding of trespass has not been appealed.

      . Restatement (Second) of Torts §929 provides the compensatory damages for harm to land from past invasions. It provides:

        “(1) If one is entitled to a judgment for harm to land resulting from a past invasion and not amounting to a total destruction of value, the damages include compensation for
      “(a) the difference between the value of the land before the harm and the value after the harm, or at his election in an appropriate case, the cost of restoration that has been or may be reasonably incurred,
      “(b) the loss of use of the land, and
      “(c) discomfort and annoyance to him as an occupant.
      “(2) If a thing attached to the land but severable from it is damaged, he may at his election recover the loss in value to the thing instead of the damage to the land as a whole.”
      The comments to section 929 include, in part, the following:
      “(a) One whose land has been damaged is entitled to compensation for the difference between its value before and after the harm. If only a portion of a tract of land has been directly harmed, the diminished value of the entire tract is considered....
      “(b) Restoration. Even in the absence of value arising from personal use, the reasonable cost of replacing the land in its original position is ordinarily allowable as the measure of recovery. Thus if a ditch is wrongfully dug upon the land of another, the other normally is en titled to damages measured by the expense of filling the ditch, if he wishes it filled. If, however, the cost of replacing the land in its original condition is disproportionate to the diminution in the value of the land caused by the trespass, unless there is a reason personal to the owner for restoring the original condition, damages are measured only by the difference between the value of the land before and after the harm. This would be true, for example, if in trying the effect of explosives, a person were to create large pits upon the comparatively worthless land of another.
      “On the other hand, if a building such as a homestead is used for a purpose personal to the owner, the damages ordinarily include an amount for repairs, even though this might be greater than the entire value of the building. So, when a garden has been maintained in a city in connection with a dwelling house, the owner is entitled to recover the expense of putting the garden in its original condition even though the market value of the premises has not been decreased by the defendant's invasion.”