author: LEVIN, J.,

text:
    Reed v. Allied Signal Inc.

      December 22, 2010

      Marc P Weingarten, Joseph J. McGill, and Stefanie G. Ebert, for plaintiff.

      Peter J. Neeson, for defendant Allied Signal.
   LEVIN, J.,

I. FACTUAL AND PROCEDURAL HISTORY

The instant case was tried by jury in May, 2009, on a reverse bifurcated basis within the Mass Tort Program of the Court of Common Pleas of Philadelphia before the Honorable Stephen E. Levin.

Frederick Lewis testified at deposition prior to his death from mesothelioma that he had worked for approximately 22 years as a brake mechanic, which involved changing brakes which contained asbestos. Mr. Lewis removed old brakes, installed new brakes, and ground, sanded and riveted brakes under repair thereby releasing asbestos dust into the air on a regular basis over the course of Mr. Lewis’s career as a brake mechanic from 1933 to 1955. There was expert testimony that mesothelioma may have a lengthy latency period before it manifests itself. Medical records and expert testimony established that Mr. Frederick died as a result of mesothelioma.

On May 27, 2009, in the phase I damages portion of the trial, the jury found that asbestos exposure was the factual cause of plaintiffs’ decedent, Frederick Lewis’s, mesothelioma; and awarded damages in the amount of $492,007.00.

Subsequently, on June 2, 2009, the jury found, in the phase II liability portion of the trial, for Marlene Reed, individually, and as personal representative for the Estate of Frederick Lewis, deceased, and Margaret Lewis in her own right (hereinafter “plaintiffs”), against defendant Honeywell International Inc., formerly known as Allied Signal Inc., as successor in interest to the Bendix Corporation (hereinafter “Honeywell”). Plaintiffs then filed a motion for delay damages on June 11, 2009 to which defendant, Honeywell, filed a response in opposition to delay damages. In addition, Honeywell filed timely motion for post trial relief on June 12, 2009, in the nature of a motion for J.N.O.V., or alternatively, for a new trial on phase II only. Argument on post trial motions was heard before the Honorable Stephen Levin on July 22, 2010.

On September 1, 2010, this court denied Honeywell’s post trial motions for J.N.O.V. and new trial, but molded the verdict to reflect funds received from bankruptcy trusts, and awarded delay damages pursuant to a court order docketed September 7, 2010 as follows:

And now, this first day of September, 2010, upon consideration of defendant, Honeywell International Inc.’s motion for post-rrial relief in the nature of a motion for judgment notwithstanding the verdict, and Honeywell International, Inc.’s motion for a new trial in phase II, pursuant to Pennsylvania Rule of Civil Procedure 227.1, and any response thereto, it is hereby ordered that defendant’s motion for JNOV and defendant’s motion for a new trial in phase II are both denied.
Defendant Honeywell International, Inc.’s alternative motion to mold the verdict of $492,007.00 to reflect plaintiffs’ settlements received from the following section 524(g) bankruptcy trusts is granted as follows.
Manville $26,250.00
Celotex $18,583.00
Armstrong $22,000.00
U.S. Gypsum $69,750.00
National Gypsum $12,510.00
Total Bankruptcy Settlements $149,093.00
The trust distribution claims and resolutions procedures of Armstrong World Industries, Inc.; United States Gypsum, and NGC (National Gypsum Company) Bodily Injury Trust are hereby incorporated into the record, and made a part of defendant Honeywell’s August 6, 2010 filing as Exhibits E through G thereto.
The verdict of $492,007.00 is hereby molded for a net verdict amount of $342,914.00 based on the pro tanto reduction of the verdict by each of the above bankruptcy trust settlements pursuant to the Uniform Contribution Among Joint Tortfeasors Act, 42 Pa. C.S. Section 8326; Andalorro v. Armstrong World Industries, 799 A.2d 71 (Pa. Super. 2002); and Baker v. A, C & S. Inc., et al., 562 Pa. 290, 755 A.2d 664 (Pa. 2000). It is further ordered, pursuant to Pa. R.C.P. 238, that plaintiffs are entitled to delay damages. Accordingly, the delay damages set forth below have been calculated upon the molded verdict amount of $342,914.00.
Delay damages are hereby awarded pursuant to Pa. R.C.P. 238 based on the prime rate as published in the first yearly edition of the Wall Street Journal for each pertinent year, plus one percent not compounded, using the molded verdict of $342,914.00 as the basis as follows:
November 27, 2007 to Dec. 31, 2007
at 9 1/4 % $3041.60
January 1, 2008 through December
31,2008 at 8 1/4% $28,290.41
January 1, 2009 through June 2, 2009
at 4 1/4% $6,109.04
Total Delay Damages $37,441.05

Judgment was entered, upon praecipe by Honeywell, on the molded verdict, in the combined amount of $380,355.05, on September 28, 2010; from which Honeywell filed an appeal the next day with respect to the denial of Honeywell’s post trial motion for J.N.O.V. or a new trial. On October 11, 2010, plaintiffs filed an appeal of the September 1, 2010 order, first opposing the molding of the verdict to reflect funds received from the bankruptcy trusts, and secondly against the calculation of delay damages after molding the verdict, and against the September 28, 2010 entry of said verdict as a judgment. The parties then filed Rule 1925 (b) statements of matters complained of on appeal.

Thus, Honeywell appeals the denial of J.N.O.V., or alternatively, requests a new trial, but does not appeal the calculations of the trial court with respect to molding the verdict, or delay damages, in the event the denial of its post trial motions is upheld. Plaintiffs, on the other hand, do not appeal the verdict. Plaintiffs appeal only on grounds that the verdict should not have been molded as it was, and they contend that delay damages should not have been calculated on a reduced, (molded) verdict. For purposes of judicial economy, this opinion will first address the reasons why Honeywell’s appeal with respect to J.N.O.V., or new trial should be denied. The opinion will then discuss the reasons of the trial court for molding the verdict by subtracting bankruptcy trust settlements and calculating delay damages as it did on the molded verdict.

II. DISCUSSION

A. The Court Properly Denied Honeywell s Motion for J.N.O. V, or in the Alternative for a New Trial

Defendant Honeywell raised several issues in its post trial motions, and in its 1925 (b) statement.

First, Honeywell argued that the rule of coordinate jurisdiction applies such that an order entered by Philadelphia Court of Common Pleas Judge Tereshko in a Frye motion in another case mandates that plaintiffs’ expert testimony be precluded in this case. This would have left plaintiff without an expert on the type of asbestos fibers used in brake linings as being causally related to mesothelioma.

Honeywell also argued in its post-trial motions that plaintiffs’ expert, Dr. Frank, used a novel methodology and should be precluded under Frye for this reason as well. Defendant also states that plaintiffs’ expert propounded a de-minimus “each and every breath” theory, and that this theory is precluded by case law.

Next, defendant contended that the bankrupt manufacturers should have been on the verdict sheet. Honeywell maintained that asbestos insulation, not the brakes manufactured by Honeywell, is the cause of mesothelioma. Defendant also argued that the shorter fibers in brake linings have not been shown to be a cause of mesothelioma, based on epidemiological studies utilized by its own expert. Taking the issues raised by Honeywell in seriatum:

The trial court was not was bound by the September 24, 2008 Frye ruling made in In re asbestos litigation by Judge Tereshko, merely because said ruling was made in the Philadelphia court of common pleas. Honeywell’s interpretation of Judge Tereshko’s ruling is far too broad. Judge Tereshko’s evidentiary ruling was fact specific to the cases before him. It was not a global ruling applicable to all Frye motions heard in the Complex Litigation Center of the Philadelphia Courts, which has not adopted Judge Tershko’s Frye ruling as such. In the instant case, Judge Levin, based on the facts and expert testimony in the cases presented to him, ruled that there was a jury question as to whether the facts supported whether or not the products manufactured by Honeywell were a substantial factor in causing injury to plaintiff. It was simply a question of case specific fact not law.

Further, in the case sub judice, plaintiffs enumerated the bases by which Dr. Frank, plaintiffs” expert, arrived at his conclusion, including review of the case materials, review of all of the decedent’s medical records, review of scientific and medical literature with respect to chrysotile asbestos fibers contained in brake linings, clinical experience, review of epidemiological literature, information about the latency period of mesothelioma, his own research in the asbestos field, and a review of plaintiffs’ depositions with respect to exposure. Plaintiff maintained that the defense expert, Dr. Case, testified that he used many of the same methods to arrive at his opposite conclusions. Significantly, plaintiffs’ counsel also points out that plaintiffs’ decedent, Frederick Lewis, worked on brakes for 22 years, and that his exposure to asbestos from brake lining was cumulative, not a limited exposure.

Honeywell conflates the arguments it made in support of its Frye motion with the actual Frye test. At issue in a Frye motion is whether the expert’s theory is novel, and if so whether the methodology used is generally acceptable. The level of exposure is generally a fact question for the jury. There is nothing inherent in friction products that makes them immune to asbestos litigation, contrary to the gist of Honeywell’s arguments. The issue is whether the theories and methodologies advanced by the proffered expert pass scientific muster so as to be a legitimate battle of experts. This is made abundantly clear recently, by the Superior Court in the case of Betz v. Pneumo Abex, LLC, et al. 998 A.2d 962 (Pa. Super. 2010), where the Superior Court reversed the Allegheny County trial court’s granting of summary judgment. In Betz, Allied Corporation, successor in interest to Bendix, made exactly the same arguments that Honeywell makes in its concise statements of matters complained of on appeal. The Superior Court, just this year, found that the trial court should have denied what defendant characterized as a global Frye motion for reasons set forth at length in Betz. In fact, the Superior Court in Betz found the case of Gregg v. V-J Auto Parts, 596 Pa. 274, 943 A.2d 216 (Pa. 2007), which Honeywell relies upon here, inapplicable for purposes of a deciding a very similar Frye motion.

There was no abuse of discretion or error of law in permitting plaintiff’s experts to testify, as the classic battle of experts involving questions of fact for the jury to resolve. There was sufficient evidence in Phase I to allow the question of whether or not the mesothelioma could have been caused by chrystolite asbestos fibers found in friction products. In essence, Honeywell seeks a finding of fact by the court that friction products containing asbestos cannot cause mesothelioma. This scientific dispute is a question of fact for the jury to resolve. Honeywell’s arguments for J.N.O.V., or alternatively for a new trial, on the above grounds are without merit. The trial court’s denial of same should be upheld.

Additionally, it is well settled that bankrupt asbestos manufacturers should be excluded from the verdict sheet. Honeywell does not produce any precedent that would supersede the Superior Court holding in Ball v. Johns-Manville Corporation, 625 A.2d 650 (Pa. Super. 1993). Case law holds that bankrupt asbestos manufacturers are not to be placed on the verdict sheet in asbestos cases, period. The trial court was bound to follow precedent on the verdict sheet issue.

Finally, Honeywell also filed a post trial motion, in the event of denial of above motions, that there should be a pro-tanto set off as to all the bankruptcy trusts (from which plaintiffs admitted in response to a court discovery order receiving funds), and that the verdict be molded accordingly as to Johns-Manville, Armstrong, Celotex, and American Gypsum. Honeywell further moved for delay damages to be calculated based on the molded verdict. Honeywell’s motions to mold the verdict and to base delay damages on the reduced amount were granted by the trial court for the reasons set forth below.

B. The Court was Correct in Molding the Verdict to Reflect Funds Received from Bankruptcy Trusts

Pennsylvania Rule of Civil Procedure 227.1 gives the trial court the authority to modify a jury’s decision or to enter any other order that is appropriate. Further, trial courts may exercise their equitable powers by reducing a verdict to reflect the difference between a jury’s verdict and excess funds already paid to a plaintiff. See: Gallop v. Rose, 616 A.2d 1027, 1030-31 (Pa. Super. 1992); Boyle v. Erie Ins. Co., 656 A.2d 941, 943-44 (Pa. Super. 1995); Johnson v. Beane, 541 Pa. 449, 455, 664 A.2d 96, 100 (Pa. 1995).

Defendant’s alternative post trial motion for a pro tanto set off with respect to all enumerated bankruptcy trusts was granted. The jury verdict and judgment were molded to reflect a pro tanto set off for all funds received by the plaintiff from Johns-Manville and Asbestos Settlement Trust/Celotex (which plaintiff does not dispute), as well as from Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust, United States Gypsum Asbestos Personal Injury Trust, and NGC Bodily Injury Trust.

The main question posed to the court was whether there was a distinction to be made between the settlement releases, entered into by the Johns-Manville Trust, and the Asbestos Settlement Trust (Celotex), from the bankruptcy trust distributions by other defendants, who have settled through their respective bankruptcy trusts.

Significantly, plaintiffs agreed at the July 22, 2010 hearing on post trial motions that both the Johns-Manville Bankruptcy Trust and the Asbestos Settlement Trust (successor to the Celotex Corporation) had paid out funds to plaintiffs through the trust distribution process (“TDP”). Plaintiffs did not dispute that both the funds paid by Johns Manville, in the amount of $26,250.00, and Celotex, in the amount of $ 18,583, could be deducted from the judgment in order to mold the verdict pro tanto based on the language of the releases. Nor did plaintiffs dispute the calculation of delay damages based on this reduction. However, plaintiffs dispute the deduction of bankruptcy trusts settlements of Armstrong, US Gypsum and National Gypsum from the verdict. Honeywell argues that these same bankruptcy trust settlements should be deducted pro tanto from the judgment, and that the verdict should be molded accordingly.

Plaintiffs post-trial argument focused on provisions of the releases that permit actions for contribution where there has been a verdict or a settlement by other defendants. Plaintiffs have failed to show that there is a significant distinction between the releases of Johns Manville and Celotex and the other bankruptcy settlement trusts. The trial court found that two of the bankruptcy trust settlement releases contain language that is substantively that of a pro tanto release, and the third comes close to such language. Pursuant to the Uniform Contribution Among Tortfeasors Act, as applied in the Commonwealth of Pennsylvania, where a release does not specify a pro rata apportionment of damages in the event of litigation, the release defaults to a pro tanto release and should be interpreted as such by the courts.

In support of its position, Honeywell attached the releases and trust disposition documents for Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust; United States Gypsum Asbestos Personal Injury Trust, and NGC Bodily Injury Trust to its second supplemental brief. The attached release and indemnity agreements stipulate that claimant for the bankruptcy trust settlement funds will hold releasees harmless and indemnify them from liability. Further, the releases stipulate that any judgment against other defendants, that includes the trust as a joint tortfeasor, shall be reduced no more than the actual amount paid as consideration for the release.

This court entered a judgment that did not include the trusts as joint tortfeasors, since they could not be entered on the verdict sheet. However, pursuant to an order by Judge Moss, as coordinating Judge of the Mass Tort section of the Complex Litigation Center, plaintiffs were required to disclose the amounts they received from the bankruptcy trusts.

The plaintiffs have now disclosed the amounts received, which should be deducted from the jury verdict, based on the Uniform Contribution Among Joint Tortfeasors Act, 42 Pa. C.S. Sections 8321-8327 (“UCATA”) which provides that:

A release by an injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides, but reduces the claim against other tortfeasors in the amount of consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid, (emphasis supplied) 42 Pa. C.S. Section 8326.

It is well established that defendants, who have previously settled with and been released by a plaintiff, are to be listed on the verdict sheet for purposes of implementing the UCATA. However, the Pennsylvania Superior Court, in Ball v. Johns Manville Corp., 624 A.2d 650 (Pa. Super. 1990), held that bankrupt parties could not be listed on the verdict sheet because it would be a violation of the bankruptcy stay order. The Superior Court in Ball did recognize the UCATA. In Ball, as many as 11 of the original defendants were at various stages of bankruptcy. The Superior Court in 1992 found that there was nothing which precluded the solvent defendants in asbestos litigation from seeking contribution from the bankrupt defendants upon emergence from reorganization.

Plaintiffs here argue that contribution is appropriate, but not a verdict reduction. But since 1992 there have been a number of developments in bankruptcy and asbestos litigation which obviate against contribution as the best remedy for implementing the goals of the UCATA.

First, the Pennsylvania Supreme Court has stated that the UCATA allows a verdict reduction based on the trust distribution process as the most equitable distribution of bankruptcy trust assets. See Baker v. ACandS, 562 Pa. 290, 755 A.2d 664 (Pa. 2000).

The TDP allows a claimant upon meeting certain threshold requirements, to treat the Trust as a “legally responsible tortfeasor” without introduction of further proof; deems the Trust to be a settled joint tortfeasor; limits the rights of co-defendants to obtain contribution against the Trust to a narrow set of circumstances; and in some instances permits co-defendants to obtain a reduction in verdict in respect to the Trust, whether or not the claimant’s direct claim against the Trust has been resolved. Id at 308, 755 A.2d at 674.

Second, bankrupt asbestos entities have been establishing trusts with specific trust disposition procedures under Section 524 (g) of the Bankruptcy Code to pay out specific amounts depending on injury and mortality considerations to individuals who claim damages due to asbestos exposure. Many of these trusts have actually seen a growth in the reserves, by some estimates to $30 billion. The trusts have been organized to pay asbestos claimants compensation for diseases caused by asbestos exposure from specific products by having claimants file an application and verification of exposure which expedites recovery for potential plaintiffs. It is not uncommon for a person who can show exposure to asbestos to make application to several bankruptcy trusts, and to simultaneously sue other, non-bankrupt, manufacturers, often more than one, in civil court proceedings. Thus, one individual or estate has two avenues of recovery; the 524(g) bankruptcy trusts administrative procedure, as well as civil lawsuits. This has led to the potential of double recovery, as there has only been haphazard reporting, if at all, by plaintiffs of funds received from bankruptcy trusts, despite recoveries also received at trial. Since juries as fact finders determine asbestos related damages in bifurcated trials in the Complex Litigation Center of Philadelphia County, the damages to a plaintiff can be determined as a sum certain. But since bankrupt companies, unlike settling defendants, may not be placed on the verdict sheet, the total recovery available to many plaintiffs exceeds the damage amount set by the jury during Phase I asbestos trials.

Here, the releases allow Honeywell, which was found liable at trial, to pursue contribution, but the trust releases stipulate that the plaintiffs hold the trusts harmless and indemnify them from liability. Here, plaintiffs have already received funds from the bankruptcy trusts. It would simply be a waste of time and resources to require Honeywell to seek contribution from the trusts. The money from the trusts has already been received by the plaintiffs; for them to return it to the trusts, which would then give the funds to Honeywell, so that Honeywell could then pay the entire verdict, is bureaucratic and expensive. Moreover, such a procedure could further delay compensation for the plaintiffs. Pursuant to Baker and the UCATA, the verdict should simply be molded on a pro tanto basis as specified and/or implied by the releases, then paid by Honeywell after the reduction of the jury verdict by bankruptcy trust settlements accordingly.

Plaintiffs argument that evidence was not presented at trial as to the exposure of plaintiffs’ decedent to asbestos containing products of Johns-Manville Trust, and the Asbestos Settlement Trust (Celotex), as well as from Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust, United States Gypsum Asbestos Personal Injury Trust, and NGC Bodily Injury Trust is without merit on its face. Plaintiffs accepted bankruptcy trust money from Johns-Manville Trust, and the Asbestos Settlement Trust (Celotex), as well as from Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust; United States Gypsum Asbestos Personal Injury Trust, and NGC Bodily Injury Trust. Plaintiffs cannot now come before this court and argue that there was no evidence of exposure to asbestos from said manufacturers’ products presented at trial in order to effect a double recovery. Plaintiffs applied to the bankruptcy trusts based on the fundamental contention that they were liable for plaintiffs’ decedent’s mesothelioma. Plaintiffs had to have claimed exposure to each of the products of the above entities on the claims forms of all of them pursuant to the trust disposition process.

Further, bankruptcy law prevents the introduction of evidence against bankrupt manufacturers in civil trials, but balances this with the trust distribution process. Here, the trial court is required by the bankruptcy laws to exclude settling bankrupt defendants from the verdict sheet. The only reason to include evidence as to settling defendants during trial is to establish whether or not there is liability so that damages can be properly apportioned. In the instant case damages have already been paid by the settling bankrupt defendants to the full extent that they can be held liable under the bankruptcy laws based on their respective trust disposition documents. Plaintiffs’ interests are protected by the pro tanto releases themselves, as well as by any release that is not explicitly pro tanto. See Ball v. Johns-Manville Corporation, 624 A.2d 650 (Pa. Super. 1993). As stated in Brandt v. Eagle, MD, 602 A.2d 1364 (Pa. Super. 1992):

The common law has traditionally attached great significance to the entry of a satisfaction of judgment. A plaintiff who is injured at the hands of more than one tortfeasor may sue and recover a judgment against any or all of the tortfeasors and may attempt to collect the damages awarded by the judgment against any or all of them. However, although a plaintiff may obtain a judgment against several of the tortfeasors for the same harm, he or she is entitled to only one satisfaction for that harm. Brandt at 1367.

Here, to allow the plaintiffs to retain the funds obtained from five bankruptcy trusts, for the same injuries for which a judgment is to be entered by this court, would be to allow plaintiffs to obtain multiple satisfactions for the same injury. Instead, the trial court molded the verdict taking into account the funds paid to plaintiffs by the bankruptcy trusts. The total amount received by plaintiffs from the bankruptcy trusts and Honeywell is, therefore, equal in amount to the total verdict of the jury, which was merely molded to reflect the money already received by the plaintiffs.

C. Delay Damages Were Properly Calculated Based on the Molded Verdict

Pursuant to PAR.C.P. 238, delay damages are available at the request of the a plaintiff in a civil action, where a defendant has been found liable, based on a verdict of a judge or jury, for the period of time from a date one year after the date of original service to the date of verdict where there has been no written offer of settlement pursuant to the rule. See Pa. R.C.P. 238.

The second issue plaintiffs complains of on appeal in their Rule 1925 (b) statement is, according to plaintiffs, that even if it is conceded that the verdict should have been molded to reflect the funds received from bankruptcy trusts, that delay damages should have been calculated using the non-molded verdict as the basis for the court’s delay damages calculations. To the contrary, the policy underlying the award of delay damages mandates that they should be calculated based on the molded verdict to reflect funds hitherto received by a plaintiff as made clear by the language and commentary of Pa. R.C.P. 238 itself. Essentially, plaintiffs have already recovered and received funds from the settling bankruptcy trusts prior to the jury verdict. Plaintiffs had the use of these previously recovered funds, and, therefore, should not receive interest on previously recouped funds.

Delay damages are simply pre-judgment interest on what is, essentially, plaintiff’s money for the period of time defendants had use of the money prior to the determination of a verdict.

Delay damages are not a penalty, rather, they are a charge against defendants who had an opportunity to protect themselves from incurring delay damages by making a reasonable offer of settlement in good faith and in timely fashion. See Santana, et al. v. Lucas, 79 Pa D. & C. 4th 336, 351 (Phila. CCP 2005), citing Craig v. Magee Memorial Rehabilitation Center, 582 A.2d 1376 (Pa. Super. 1990). As the Philadelphia County trial court stated in Santana, delay damages are merely pre-judgment interest:

Fundamental fairness would require ... that plaintiffs receive interest on what is essentially their money for the period that it is held by the defendants ... who had use of that money... Awarding delay damages under such circumstances does not penalize defendants... because they had the opportunity to protect themselves from exposure to delay damages by making a reasonable offer of settlement in good faith in a timely fashion. Santana at 351 citing King v. Southeastern Pa. Trans. Authority, 557 A.2d 11, 12 (Pa. Super. 1989).

Conversely, where plaintiffs have received money in advance of a jury verdict from the bankruptcy trust distribution process, fundamental fairness requires the reduction of the verdict by the amount of the money received thereby.

Moreover, fundamental fairness requires that there be no delay damages charged on the money which has been received. See Hughes v. GAF Corp., 528 A.2d 173 (Pa, Super. 1987), which also involved asbestos litigation in Philadelphia County:

In 1976, appellee James Hughes brought suit against various asbestos manufacturers for personal injuries allegedly caused by exposure to asbestos products. Lois Hughes, his wife, joined in the suit claiming loss of consortium. After a non-jury trial in 1984, a jury trial de novo was held before Judge Caesar of the Philadelphia Court of Common Pleas. The jury returned a verdict of $284,975 for James Hughes and $10,200 for Lois Hughes against defendants GAF, Eagle-Picher, Keene, Owens-Coming Fiberglass, and Pittsburg Coming. Since all of the companies except GAF had settled prior to the trial, Judge Caesar molded the verdict against GAF to the amount of $56,995 in favor of James Hughes and $2,040 in favor of Lois Hughes. Hughes at 174.

Based on the above facts, the Superior Court found that the verdict should be molded to reflect money received from the settling defendants and that delay damages should be calculated on the reduced, molded verdict:

The plaintiffs have cross-filed an appeal on the issue of whether delay damages should be calculated on the total verdict rather than on the molded portion of the verdict only. Plaintiffs cite the rationale of Rule 238, interpreted in Laudenberger, supra, as the reason for calculating delay damages on the total verdict.
Although the intent of Rule 238 is to encourage early settlements, we find it “unrealistic to require each defendant to offer nearly the full amount of damages ultimately recovered in an action where the amount finally attributed to each defendant is only a percentage of the total. Korn v. Consolidated Rail System, 512 A.2d 1266, 1268 (Pa. Super. 1986) (citing Richardson v. LaBuz, 474 A.2d 1181, 1196 (Pa. Cmwlth. 1984). Furthermore, this court finds that “it would be anomalous to award a plaintiff delay damages on money already received from settling defendants.” Korn, 512 A.2d 1266, 1268 (Pa. Super. 1986) (citing Rocco v. Johns-Manville Corp., 754 F 2d 110, 118 (3rd Cir. 1985); see also Baciotti v. Simmons, 498 A.2d 1351 (Pa. Super. 1985), delay damages must be apportioned in the same manner in which the jury apportioned liability. The trial court properly awarded delay damages based upon only the molded portion of the verdict. Hughes at 176-177.

In Hughes, all the defendants but one settled prior to trial, and the court molded the verdict to reflect the deduction of the settlement amounts. The Superior Court then used the reduced verdict as the basis for calculating delay damages. The Superior Court held that the plaintiff should not be allowed to receive additional delay damages on money already received from settling defendants. The Philadelphia County asbestos litigation sub-judice is analogous, only here, rather than pretrial settling defendants, bankrupt manufacturers have settled liability claims at a discounted bankruptcy rate based on the trust distribution process.

As reflected in the dockets for this case, plaintiffs Frederick and Margaret Lewis commenced this personal injury action by filing a complaint in the Philadelphia County Court of Common Pleas. Original process was served on November 21,2006. The jury awarded a verdict of $492,000 in favor of plaintiffs and against defendant, Honeywell. No written offer was ever made by the defendant.

Therefore, the trial court awarded delay damages pursuant to Pa. R.C.P. 238 based on the prime rate as published in the first yearly edition of the Wall Street Journal for each pertinent year, plus one percent not compounded, using the molded verdict of $342,914.00 as the basis. Since plaintiffs have had the use of the bankruptcy trust settlement funds, the calculation of delay damages was properly based on the verdict as molded by the court, which reflects the subtraction of settlement funds previously received from the bankruptcy trusts.

III. CONCLUSION

For the reasons set forth above the trial court’s denial of defendant, Honeywell’s post trial motion for J.N.O.V., or in the alternative for a new trial, should be upheld. The trial court’s molding of the verdict to reflect funds received from settling defendants and bankruptcy trusts should be upheld. The calculation of delay damages using the molded verdict as the basis, should also be upheld.


source: Caselaw Access Project

author: HODGE, J.,

license: Public Domain

text:
    Degidio v. Degidio

      C.P. of Lawrence County,
    nos. 40045 of 2001, E.Q. and 10255 of 2001, C.A.

      Breonna C. Frisk-Miller, for plaintiff.

      George M. Freed, for defendant.
    January 13, 2011
   HODGE, J.,

This case was before the court on December 14, 2010 on a motion to reinstate sanctions and a motion to appoint master filed on behalf of the plaintiff, Denise Caminite DeGidio. The defendant, Alexander J. DeGidio, filed a memorandum in response to plaintiff’s motions claiming that the doctrine of laches precluded plaintiff from obtaining the requested relief from this court. The court heard oral argument from counsel on the legal issue of whether the doctrine of laches is applicable in the instant case, and the matter is now before the court for determination.

A brief summation of this case’s factual history is as follows: The plaintiff and defendant were married on March 11, 1983, and they were separated on February 1, 2001. The separation occurred after an incident of domestic violence, which resulted in physical injury to the plaintiff. This specific incident prompted plaintiff to file a complaint in divorce and obtain a protection from abuse order against defendant. A final protection from abuse order was issued on February 16, 2001. The February 16, 2001 order included a provision forbidding the parties from alienating, encumbering, and disposing of the marital property.

Thereafter, the defendant prevented the plaintiff from entering their home to obtain her personal belongings and her dog. Plaintiff could not access the marital residence until June of 2001, but by that time many of her personal possessions having any value were gone, including her dog. The residence itself was left by the defendant uninsured and unoccupied. The bank had foreclosed on the residence, and the property was eventually sold at the sheriff’s sale.

On January 7, 2002, the Flonorable President Judge Ralph Pratt found defendant in contempt of court and ordered remedies and sanctions. Defendant appealed the January 7, 2002 order of court. Plaintiff did not respond to defendant’s notice of appeal. The Superior Court subsequently affirmed all of the January 7, 2002 order, except paragraphs, 5(a) and (b)(i). This specific portion of the order was remanded to the trial court to make a determination regarding defendant’s ability to comply with the provision set forth in the order. Until plaintiff recently filed the motion to reinstate sanctions and a motion for appointment of master, this case was inactive since July 9, 2003, the date of remand from the Superior Court.

The court will first address plaintiff’s motion to reinstate sanctions. The specific sanctions imposed by the Honorable Judge Pratt are extracted from the January 7, 2002 order and read as follows:

4) As sanctions, the court directs that defendant shall serve a term of imprisonment in the Lawrence County Jail of six (6) months and pay a $ 1,000.00 fine, effective immediately.
5) The sanctions imposed are suspended pending an opportunity for the defendant to purge himself of contempt by complying with the following conditions:
a) within 10 days from the filing of this order, defendant shall pay the plaintiff the sum of $340.00 for cell phone charges, $500.00 to replace a portion of plaintiff’s damaged clothing, and $400.00 for reasonable attorney’s fee;
b) within 90 days of the filing of this order:
i) pay all arrearages regarding the mortgaged loan which encumbers the marital residence to bring the installment payment obligations current and thereby preclude the pending mortgage foreclosure proceeding at No. 10585 of 2001, C.A.;
ii) clean, repair, and return to an orderly condition the interior and exterior of the marital residence so that it is appropriate for prospective buyers to view; and
iii) provide to plaintiff a full accounting in writing of all personal property in the marital residence at the time plaintiff vacated the residence on February 16, 2001, and that personal property which currently exists in the residence; and
c) fully comply with the PFA order of February 16, 2001 as extended by this order.

As previously stated, the Superior Court remanded this case to the trial court for a determination of defendant’s ability to comply with provisions 5(a) and (b)(i-ii). However, subsequent to this case being remanded, no action was taken by either party to initiate proceedings as directed by the Superior Court.

The defendant now asserts the defense of laches. This defense bars relief when the complaining party has acted without due diligence and has consequently failed to initiate an action to another’s prejudice. Leedom v. Thomas, 473 Pa. 193, 200, 373 A.2d 1329, 1332 (Pa. 1977). The test for applying the doctrine of laches has been stated as follows: The party asserting laches must first show a delay arising from the other party’s failure to exercise due diligence, and second, prejudice from the delay. Pattern v. Vose, 590 A.2d 1307, 1309 (Pa. Super. 1991). It is not enough for a party to only show delay arising from failure to exercise due diligence, as the doctrine of laches will not be imputed where no injury has resulted to the other party by reason of the delay. Id.

“Prejudice is an essential element of laches; in the absence of prejudice, the doctrine of laches will not be applied.” Pattern v. Vose, 590 A.2d at 1309. Laches is properly asserted when a change in the condition or relations of the parties occurs during the period of time the complainant unreasonably failed to act. Leedom v. Thomas, at 201, 373 A.2d at 1333. Thus, the burden of proof with respect to the doctrine of laches is upon the party asserting the defense, and as previously stated, “in order to meet this burden, the party alleging the delay must demonstrate prejudice.” Lipschutz v. Lipschutz, 571 A.2d 1046, 1051 (Pa. Super. 1990) (citing Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (Pa. 1975). “[D]elay alone, no matter how long, does not itself establish laches.” Pattern, 590 A.2d at 1309 (quoting Jackman v. Pelusi, 550 A.2d 199, 202 (Pa. Super. 1988).

The court finds that plaintiff has failed to exercise due diligence to ensure that this case was resolved and finalized before the court. Seven years have passed since plaintiff took any initiative to proceed with the directions of the Superior Court and assess the defendant’s ability to pay the contempt conditions set forth by the court. Plaintiff rationalizes her failure to act by claiming that she was without the financial resources to continue forward with the litigation and that she had moved out of state for fear of the defendant.

The defendant contends that as a result of plaintiff’s failure to exercise diligence he has inevitably been prejudiced; the court must agree with the defendant’s assertion. Laches is founded on some change in the condition or relations of the parties which occurs during the period the complainant unreasonably failed to act. See Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (1975). Well over seven years have passed since this case was remanded from the Superior Court without plaintiff taking any action to enforce the issue of contempt. Since that time, defendant asserts that his financial position has substantially changed, and any marital assets that may have once belonged to the parties no longer exist.

Furthermore, the defendant argues that it would be unreasonable for the court to schedule a hearing to determine defendant’s ability to financially comply with the January 7, 2002 order, as such a determination would be almost impossible to determine after such a drastic delay in the proceedings. Plaintiff, however, in her memorandum, argues that defendant is not prejudiced as he “is in the same if not better position to make good on the remaining portion of the contempt order and to litigate the remanded portion of the contempt order, as he has since started and successfully grown a business of his own.” See plaintiff’s memorandum, page 5. Yet the defendant’s present ability to pay cannot be considered by the court, as this determination must be made based on the defendant’s ability to pay at the time of the previous contempt hearing.

Plaintiff additionally argues that her rights were established by the court, as set forth in the protection from abuse order, and the primary obligation to enforce her rights did not lie with the plaintiff, but the court itself. Although this argument may have some merit on its face, the court’s file indicates that the protection from abuse order issued by the Honorable Judge Pratt was extended to September 16, 2003. Any court-implemented provisions against the defendant expired on that date, and for that reason, this court finds itself without the necessary jurisdiction to enforce the protection from abuse order.

The remaining issue before the court is plaintiff’s motion for appointment of master. Defendant, in opposition to plaintiff’s second motion, raises the same defense of laches and for similar reasons. The court, after a thorough review of the file, notes that plaintiff has preserved her claim for economic relief prior to a divorce decree being entered by the Honorable Judge Thomas M. Piccione on December 5, 2003. The court is additionally bound to follow the statutory law which enables a equitable claim that has been properly preserved to survive the entry of a divorce decree. See 23 Pa.C.S.A. § 3503.

It is the determination of the court that proceeding forward with an equitable resolution of the parties’ divorce is appropriate, as the court finds that the delay in this portion of the proceedings does not prejudice the defendant.

The court will enter the following order in accordance with this opinion.

ORDER OF COURT

And now, January 13, 2011, after hearing argument on plaintiff’s motion to reinstate sanctions and motion to reinstate sanctions and motion for appointment of master, with Breonna C. Frisk-Miller, Esquire, appearing and representing the plaintiff, and with George M. Freed, Esquire, appearing and representing the defendant, the court hereby orders and decrees as follows:

1. Plaintiff’s motion to reinstate sanctions is denied.
2. Plaintiff’s motion for appointment of master is granted.
3. The court appoints Gregory S. Fox, Esquire as equitable distribution master.
4. The plaintiff and defendant shall each pay within 14 days of the date hereof $200.00 toward the initial deposit fee of $400.00 for the master. At the time of the hearing, the master shall determine how to allocate the payment for reimbursement of his costs between the parties.
5. Both parties shall complete discovery within thirty (30) days of the date of this order.
6. Both parties shall file or update their inventory forms within thirty (30) days from the date of this order.
7. The recommendation of the master regarding alimony pendent elite, alimony and medical insurance coverage will be treated by the parties as an order of court at any civil action or domestic relations case numbers until further order of court.
8. Each party hereby waives on behalf of his or her estate, the provision of the Pennsylvania Dead Man’s Act in the event of his or her intervening death.
9.Until final economic resolution, each party is hereby enjoined and restrained from alienating, assigning, concealing, conveying, dissipating, encumbering, hypothecating, pledging, secreting, transferring or otherwise disposing of any of the marital property of the parties.
10. The prothonotary shall properly serve notice of this order and opinion upon counsel of record; upon any party not represented by counsel; and upon Gregory S. Fox, Esquire, by regular mail or personal service.


text:
    Commonwealth v. Rubin

      January 10, 2011
    C.P. of Lawrence County,
    no. 1019 of 2009, CR.

      William Flannery, assistant district attorney, for Commonwealth.

      Lawrence J. Keith, assistant public defender, for defendant.
   HODGE, J.,

the instant matter, the defendant Michael J. Rubin has filed a pre-trial omnibus motion for relief in the form of a petition for writ of habeas corpus. The defendant is charged with theft by deception - false impression (18 Pa.C.S. §3922 §§A1); receiving stolen property (18 Pa.C.S. §3925 §§A); and secure execution of documents by deception (18 Pa.C.S. §4114), and contends that there is insufficient evidence as a matter of law to sustain any of the three charges.

A brief summary of the facts indicates that on or about April 20, 2009 Marian Marks reported to the New Castle City Police that she had been receiving overdue bills for a car loan. Ms. Marks told the police that the vehicle was a 2005 Jeep Liberty, which she believed she had co-signed for on behalf of her neighbor Michael J. Rubin. Ms. Marks then provided Sergeant Kevin Seelbaugh of the New Castle Police Department with a copy of the loans, which were later confirmed to be a personal loan in the amount of $8,625.00.

Officer Seelbaugh then went to the residence of the defendant to locate the vehicle and inquire about the loan. The defendant relayed to Officer Seelbaugh that the car dealership had “messed up the paperwork” and that he was suppose to be the primary loan holder with Ms. Marks merely co-signing on his behalf. The defendant further explained that he had not made any payments on the loan because the vehicle needed repair work done, and he was expecting the dealership to fix the problems.

Officer Seelbaugh indicated in the affidavit of probable cause that he provided the defendant with the opportunity to fix the paperwork for the loan and remedy the situation. The defendant failed to take any action and charges were filed five months later on September 22, 2009.

A petition for writ of habeas corpus is the proper means for testing a pretrial finding that the commonwealth has sufficient evidence to establish a prima facie case. Commonwealth v. Hendricks, 927 A.2d 289, 290-91 (Pa. Super. 2007). A prima facie case requires sufficient efficient to establish both the commission of a crime and that the accused is probably the person responsible for the crime. Commonwealth v. Fountain, 811 A.2d 24, 25 (Pa. Super. 2002). The commonwealth must set forth enough evidence to establish the existence of each element of the crime/s charged, but need not prove the necessary elements beyond a reasonable doubt. Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super 2001). Moreover, the evidence presented must be viewed in a light most favorable to the commonwealth, and the commonwealth is entitled to all inferences reasonable drawn from the evidence offered. Id.

The offence of theft by deception - false impression is governed by § 3922 of the crimes code. 18 Pa.C.S. §3922 (a) (1) states:

(a) Offense defined.-A person is guilty of theft if he intentionally obtains or withholds property of another by deception.

Deception is defined as intentionally: (1) creating or reinforcing a false impression; (2) preventing “another from acquiring information which would affect his judgment of a transaction”; or (3) failing “to correct a false impression which the deceiver previously created or reinforced.” 18 Pa.C.S.A. §3922(a) (1) - (3).

Section 3922 clearly articulates that it is unlawful for a person to intentionally create a false impression in the mind of another and then use the other person’s reliance of that false impression to acquire their property. Commonwealth v. Linder, 425 A.2d 1126, 1129-30 (Pa.Super. 1981). Therefore, the commonwealth must establish both the presence of a false impression created by the defendant and the reliance upon that impression by the victim. Commonwealth v. Imes, 623 A.2d 859, 862 (Pa. Super. 1993). It is therefore necessary for the commonwealth to establish the victim’s state of mind “in order to satisfy the element of‘creating’ or ‘reinforcing’ the false impression.” Id

At the hearing on defendant’s petition for writ of habeas corpus, the defendant stated that the vehicle itself was registered and titled in the defendant’s name. Defense further argued that the property alleged to have been stolen must belong to another person and cannot be the property of the defendant in order for a crime to occur. For the reasons set forth below, this court must disagree.

In Commonwealth v. Pappas, 845 A.2d 829 (Pa. Super. 2004), the defendant owned and operated a car dealership. Defendant was accused of leading his customers to believe that various cars sold were in excellent condition and had not undergone any extensive repairs. Customers relied on the representations made by the defendant, and subsequently purchased vehicles from them. Pappas, 845 A.2d at 834-35.

Regarding each car sale, the defendant was accused of making misrepresentations regarding the history and condition of the vehicles sold; it can be reasonably inferred that the defendant legally transferred titled to the vehicles from his dealership to the purchasing customer. At no point throughout the opinion were there any allegations that the defendant physically stole the vehicles from the customers, but rather fraudulently persuaded them into purchasing the vehicles.

In the case of Commonwealth v. Grife, 664 A.2d 116 (Pa. Super. 1996), the defendant secured a mortgage from Shoppers Publication (“Shoppers”), Inc. for his personal home. Id. at 117. Shoppers extended the loan to the defendant after the defendant presented Shoppers with documentation indicating that all prior mortgages had been satisfied. Id. The defendant then took out another mortgage from a second lender on the same residence and falsely conveyed the previous mortgage to the second lender. Id. at 117-18. Unbelievable as it may seem, defendant again took out another mortgage from a third lender and conveyed similar misrepresentations regarding the title to his residence to the third lender. Id. at 118.

The defendant was ultimately convicted of three counts of theft by deception. On appeal, the Pennsylvania Superior Court, in its opinion, referred to the Maryland Court of Special Appeals which set forth in following rationale:

One who has extended credit in reliance upon a mortgage on real estate which is falsely represented to be a first mortgage when in fact it is subject to a prior recorded mortgage for more than the land is worth, or is a mortgage upon property which the mortgagor does not own, has been defrauded, even if the debtor has an intent to pay the debt. The lender intended to be a secured creditor but by reason of the false representation his position is for all practical purposes that of an unsecured creditor. There is an obvious and unreasonable risk of loss which has been forced upon him, without his knowledge or consent, by reason of the deceit. This risk which the creditor did not intend to assume was imposed upon him by the intentional act of the debtor, and this amounts to an intent to defraud.

Grife, 664 A.2d at 119 (quoting Baskerville v. State, 446, 327 A.2d 918, 922 (Md. Ct. Spec. App. 1974) (quoting Perkins, Criminal Law, (2d Edition 1969) at 312-13)).

Similarly, in the case sub judice, the court finds that the commonwealth has presented sufficient evidence in their affidavit that the defendant had acted in such a manner as to deceive Ms. Marks into signing a personal loan, when she believed she was merely co-signing. Here, like the Baskerville case, there is an obvious risk of loss forced upon Ms. Marks through the deceptive act of the defendant. The court finds the defendant’s argument that the vehicle was registered to him and titled in his name to be irrelevant to the issue of whether or not his actions resulted in Ms. Marks relying upon his representations to her own detriment. Additionally the court finds the defendant’s failure to remedy the situation as sufficient evidence of his intent to deceive Ms. Marks. See 18 Pa.C.S. §3922(a)(3). The defendant’s request to dismiss count I of the complaint is therefore denied.

With respect to count II of the complaint, receiving stolen property, defendant again argues that the property alleged to have been stolen in fact belonged to him, and consequently the count II of the complaint should be dismissed.

The offence of receiving stolen property is governed by § 3925 of the crimes code. 18 Pa.C.S. §3925 states:

(a) Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
(b) Definition. — As used in this section the word “receiving” means acquiring possession, control or title, or lending on the security of the property.

The commonwealth has the burden of setting forth enough evidence to establish each element of the crime of receiving stolen goods. Those specific elements are: 1) that the goods are stolen; 2) that defendant received the goods; and 3) that he received them knowing, or having reasonable cause to know, that they were stolen. Commonwealth v. Justice, 326 A.2d 564 (Pa. Super. 1974); Commonwealth v. Houmis, 307 A.2d 339 (Pa. Super. 1973).

In the case of Commonwealth v. Shaffer, 420 A.2d 722 (Pa. Super. 1980), the Superior Court held that a person convicted of receiving stolen property is subject to the same penalties as a person convicted of theft by unlawful taking or disposition (citing Commonwealth v. Belcher, 335 A.2d 505 (Pa. Super. 1975)). Consequently, a charge of theft can also be supported by evidence that the theft was committed in a manner that would be classified under any definition of theft under § 3902 of the crimes code. Shaffer, 420 A.2d at 726.

At the pre-trial hearing, the commonwealth offered evidence by way of the information and affidavit to support the charge of receiving stolen property. This court looks to a specific statement made by the defendant to Officer Steelbaugh: “[Ms. Marks] knows where the car was and could come and get it at any time.” From this statement, the court infers that the defendant knew the vehicle in question rightfully belongs to Ms. Marks.

Although the defendant asserts that the vehicle is properly registered in his name and belongs to him, the court must view the evidence offered in a light most favorable to the commonwealth and therefore conclude that it is probable that the vehicle may not in fact belong to the defendant. As such, defendant’s request to dismiss count II of the complaint must be denied.

The third and final charge listed in the complaint, charges the defendant with the offence of secure execution of documents by deception. This offense is governed by § 4114 of the crimes code. 18 Pa.C.S. §4114 states:

A person commits a misdemeanor of the second degree if by deception he causes another to execute any instrument affecting or purporting to affect or likely to affect the pecuniary interest of any person.

Thus, a defendant charged with the crime of secure execution of documents by deception must: (1) act under a false pretense; (2) obtain a signature; (3) obtain moneys; and (4) possess an intent to defraud. Commonwealth v. Campbell, 176 A.2d 246 (Pa. Super. 1935). The information set forth in the affidavit alleges that the defendant intended for Ms. Marks to sign a personal loan that he misrepresented to her as cosigning for an auto loan. Section 4114 makes it a crime to cause another person to execute “any instrument affecting or purporting to affect or likely to affect the pecuniary interest of any person.” Commonwealth v. Schreiber, 466 A.2d 203, 207 (Pa. Super. 1983).

Defendant argues to this court that the affidavit lacks the necessary evidence to find that he acted with the necessary intent to defraud the victim, Ms. Marks, and asks this court to dismiss count II of the complaint. However, the court finds that this argument too lacks merit, as the intent to injure or defraud may be shown or be inferred from the doing of the wrongful, fraudulent, and illegal acts which as a necessary result naturally produce loss or injury to the affected person. Commonwealth v. Wheeler, 189 A.2d 291 (Pa. Super. 1963); Commonwealth v. Huster, 178 A.535 (Pa. Super. 1935).

The affidavit sets forth that both Ms. Marks and the defendant acknowledged that the defendant was supposed to be the primary loan holder for the 2005 Jeep Liberty. Additional information supports the commonwealth’s contention that the defendant intended Ms. Marks to execute a personal loan instead, as it was the defendant who supplied Ms. Marks with the paperwork and was present when she executed the documents. The court finds that the necessary intent to defraud can reasonable be inferred from these facts alone, and therefore, denies defendant’s request to dismiss count III of the complaint.

ORDER OF COURT

And now, January 10, 2011, this case being before the court on January 5, 2011 for a hearing on defendant’s petition for writ of habeas corpus, with Assistant District Attorney William J. Flannery, Esquire, appearing and representing the commonwealth, and Lawrence J. Keith, Esquire appearing and representing the defendant, the court finds and it is hereby ordered and decreed as follows:

1. The defendant’s petition for writ of habeas corpus is denied pursuant to the attached opinion.
2. This case shall be placed on the February 2011 criminal trial list.
3. The clerk of courts shall properly service notice of this order and attached opinion upon counsel of record.


author: MOSS, J.,

text:
    Commonwealth v. Sally

      January 18, 2011
    C.P. of Philadelphia County,
    no. MC-51-CR-0032706-2009.

      Jason Harmon, for commonwealth.

      Berto M. Elmore, for defendant.
   MOSS, J.,

The defendants in the above-captioned actions were charged with driving under the influence of controlled substances in violation of 75 Pa. C.S. § 3802(d)(1) and (2). Following their arrests, the defendants had blood extracted from them. The blood was analyzed at a laboratory by the name of DrugScan that used gas chromatography and mass spectrometry. Dr. Richard Cohn, a forensic toxicologist employed by DrugScan, issued two two-page reports that included findings that Mr. Walker’s blood contained phencyclidine and that Mr. Sally’s blood contained marijuana.

The reports were provided to defense counsel as part of discovery. Prior to trial, defense counsel advised the court that they intended to object to Dr. Cohn’s trial testimony. Defense counsel argue that permitting Dr. Cohn to testify without having other persons present at trial who were involved in the analysis of their clients’blood would be a violation of their clients’ Sixth Amendment right to be confronted with the witnesses against them. In support of their argument, they rely on Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), and Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super 2010). The commonwealth confirmed that it intended to call Dr. Cohn as an expert at trial without calling any of the other persons from DrugScan who were involved with the defendants’ blood samples. The commonwealth asserted that doing so would not violate the defendants’ right to confrontation.

The court decided to treat the proposed objections as in limine motions by the defendants. See United States v. Turner, 591 F.3d 928 (7th Cir. 2000). The court requested that a factual record be made of the manner and procedures used to analyze the defendants’ blood. Additionally, the court directed the commonwealth to produce additional documents that were not included as part of Dr. Cohn’s reports but which were related to the analysis of the defendants’ blood. These additional documents included the three pages of data and graphs produced by the gas chromatography / mass spectrometry machine.

This court must decide two questions. First, when applied to the present cases, do the holdings in Melendez-Diaz and Barton-Martin mandate that the commonwealth call witnesses other than Dr. Cohn to testify at trial? Second, does Dr. Cohn’s proposed testimony contain any testimonial hearsay?

I. Factual Background

At the hearing, the only witness who testified was Dr. Cohn. The parties agreed that Dr. Cohn was qualified as a forensic toxicologist. (N.T. at 15) Dr. Cohn explained that he was employed by DrugScan and that his primary function as a forensic toxicologist is to use his expertise with respect to specimens submitted by law enforcement agencies in Philadelphia, its surrounding counties and throughout the United States. (N.T. at 58-59)

Dr. Cohn described the procedure that DrugScan uses to analyze blood samples. These procedures involve a minimum of five to six DrugScan employees having access to or handling a blood sample. (N.T. at 96) He explained that blood samples come to DrugScan from the police with property receipts in two tubes, one with a gray top and the other with a red top. (N.T. at 17, 20) The tube with the red top contains no preservative and the tube with the gray top contains preservative used to prevent the blood from clotting. (N.T. at 82-83) Those tubes travel to the accession department where they are assigned an accession number. (N.T. at 20-21, 36) The name of the person from whom the sample was taken, therefore, is unknown to those involved at DrugScan with the analysis of the sample. (N.T. at 21) The sample then undergoes a series of initial screening tests which are referred to in Dr. Cohn’s report and “immunochemical assay.” During his testimony, Dr. Cohn described the tests as being “exquisite and beautiful” but providing only an indication of what substances may or may not be in the blood sample. (N.T. at 22, 37-38)

After the initial screening tests, the blood samples travel to another person who adds one of several stock solutions to the blood sample depending on the results of the initial screening tests. (N.T. at 38) There is an established protocol for adding the stock solution that does not provide for any discretion on the part of the person who adds the stock solution. (N.T. at 38) The blood sample with the added stock solution is then placed in the machine that performs gas chromatography and mass spectrometry. (N.T. at 23, 39) Although the machine runs overnight with many mixtures, each mixture runs through the machine for between 13 and 20 minutes. (N.T. at 39)

Dr. Cohn testified that laboratory technicians and technologists handle the blood samples from the time they are delivered to DrugScan until the time that they are put into the gas chromatography and mass spectrometry machine. (N.T. at 46) A laboratory technician is required to have a bachelor’s degree in one of the physical or biological sciences. (N.T. at 47) A laboratory technologist has either a higher academic degree or more job experience. (N.T. at 48) Laboratory technicians and technologists perform their work in conformance with procedures and protocols developed by forensic toxicologists. (N.T. at 60) They do not generate any opinions that Dr. Cohn uses to develop his report and opinions. (N.T. at 48-49)

The gas chromatography / mass spectrometry machine produces printouts in the form of graphs and charts. It is this data that Dr. Cohn uses to form his opinion regarding what, if any, controlled substances and alcohol are contained in the blood samples. (N.T. 50-51) The reports authored by Dr. Cohn with respect to the defendants in this case, the data produced by the gas chromatography and mass spectrometry machine for the defendants in this case, and other DrugScan documents related to the defendants in this case were introduced into evidence at the hearing. Dr. Cohn explained the general procedure that he used to analyze each of the defendant’s blood samples.

The form of Dr. Cohn’s reports is the same. They both are signed by Dr. Cohn and contain sections with headings titled “toxicology report in the case of,” “examination,” “specimens,” “findings,” “comments,” “conclusions,” and “analysis summary.” With respect to Mr. Sally, the findings and conclusion sections provided the following:

FINDINGS:
CANNABINOIDS (Marijuana) -
10.4 nanograms Delta-9-THC (Marijuana constitutent)/mL SERUM 214 nanograms 9-Carboxy-THC (Marijuana metabolite)/mL SERUM
Cannabinoids were detected by immunochemical assay, and were identified, confirmed and measured by gas chromatography/mass spectrometry.
***
CONCLUSION:
At and around the time the blood was drawn, it is reasonably scientifically certain that this individual was a recent, active user of the Schedule I hallucinogenic/ depressant agent MARIJUANA. The blood THC and Marijuana metabolite levels found are consistent with Marijuana intake in dosage amounts capable of producing its pharmacological psychoactive effect, and thus, of rendering this individual unfit to safely operate a motor vehicle on the highway.

With respect to Mr. Walker, the findings and conclusion sections provided the following:

FINDINGS:
PHENCYCLIDINE (PCP) -
16 nanograms Phencyclidine/mL SERUM
Phencyclidine was detected by immunochemical assay, and was identified, confirmed and measured by gas chromatography/mass spectrometry.
*⅜⅜
CONCLUSION:
At and around the time the blood was drawn, it is reasonably scientifically certain that this individual -
- was a recent, active user of PHENCYCLIDINE in toxicologically significant amounts;
- was under the impairing psychoactive effects of Phencyclidine; and
was unfit to operate a motor vehicle safely on the highway.

In United States v. Gricco, 2002 U.S. Dist. LEXIS 11413, Criminal Action No. 01-90 (E.D. Pa. April 25, 2002), Judge Padova found gas chromatography and mass spectrometry to be a scientifically reliable method of chemical analysis. In doing so, he provided an excellent explanation of gas chromatography and mass spectrometry based on the government’s uncontested description in its memorandum and the evidence presented at a hearing. This explanation may be helpful in understanding the science involved. He wrote that:

Gas Chromatography analyzes a sample in its gaseous state. A small quantity of the sample is dissolved in a solvent and the resultant mixture is vaporized. A carrier gas stream sweeps the vaporized sample through a column in the instrument, and the separation process begins. The sample is broken down into its components as the gas stream carries it through the column. The column through which the vaporized sample passes is coated with a liquid phase. The different components within the vaporized sample have different affinities for the liquid phase. Some will be attracted to the liquid phase and will be more soluble in that phase than other components. A component with a great affinity for the liquid phase will take longer to traverse the column than other components. The components, with their differing affinities for the liquid phase, emerge or elute from the column at different times, effecting the separation. When the component emerges from the tubing in the instrument, it enters a detector which translates the data into a graph or chromatogram. Each time a component emerges from the column, the chromatogram records a peak. Each peak represents a different component of the mixture. The horizontal axis on the chromatogram represents time elapsed in traveling the column, and the location of the peak along the horizontal axis indicates the identity of the component. The area under each peak indicates the relative proportional amount of each component in the mixture.
When Gas Chromatography is conjoined with a Mass Spectrometer, resulting in a GCMS instrument, the GC becomes the preparatory step to the MS analysis. MS can specifically identify the components of a sample substance, but only if the components are in pure form. The GC portion purifies and separates the components. The sampling components emerge from the GC column and are fed into the MS. MS identifies the components that the GC has separated by measuring the mass of the component compound and its fragments. The sample goes into the ionization chamber of the MS, where it is bombarded by an electron beam. This ionizes the compound and creates a partial fragmentation of the compound. The resulting array of fragments, which is unique to the compound, is called the compound’s fragmentation pattern. The ionized sample and its fragments are forced into an analyzer tube in a magnetic field, which separates the fragments according to their masses. As each fragment emerges from the analyzer tube, it enters the detector. When the fragment strikes the detector, it loses the charge it acquired while passing through the ion beam. The loss of the charge causes a current to activate the recorder, which produces a spectrum on a graph. The horizontal axis of the graph is the mass/charge axis. The vertical axis indicates the intensity or concentration of each peak. The highest peak, or “parent peak” is the unfragmented ion. The spectrograph produced by processing the unknown sample is then compared to spectrographs produced by processing known samples of various compounds to find a match. Id. at 9-12.

On cross-examination, defense counsel explored the possibility of human or machine error in the analysis process and the extent of Dr. Cohn’s knowledge of what was done with their clients ’ blood samples. Defense counsel demonstrated that the technologists and technicians who handled their clients’ blood samples may have more knowledge about what was done with those samples than Dr. Cohn. While such cross-examination may be effective at trial, it does not help with determining whether or not Dr. Cohn’s testimony would result in a violation of the defendants’ Sixth Amendment rights.

II. Discussion

The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.” U.S. Const. Amend. VI. In Crawford v. Washington, 541 U.S. 36 (2004), the issue before the Supreme Court concerned a wife’s tape-recorded statement to the police regarding an incident in which the defendant, her husband, allegedly stabbed a victim. At trial, the defendant claimed self-defense. The wife was precluded from testifying at trial because of a state marital privilege. Although the defendant was unable to cross-examine the wife’s tape-recorded statement, the state presented the tape-recorded statement as evidence that the stabbing was not in self-defense.

The Supreme Court held that the trial court had erred in admitting the tape-recorded statement because to do so violated the confrontation clause’s guarantee of the defendant’s right to confront those who “bear testimony” against him. Id. at 51. Thus, the hearsay statement of a witness who does not appear at trial may be inadmissible against a defendant “unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 54.

The Supreme Court noted, however, that not every hearsay statement is the subject of the confrontation clause. Rather, it is only “testimonial statements” of a witness who does not appear at trial that are encompassed within the protection of the confrontation clause because it is only that type of statement that makes a declarant a “witness” under the confrontation clause. Id. at 51. Although the Supreme Court in Crawford intentionally declined to set forth a comprehensive definition of “testimonial,” it wrote that the term “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68.

In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the prosecution introduced three “certificates of analysis” to show that the substances recovered from the defendant contained controlled substances. The certificates were sworn to before a notary public by analysts at the State Laboratory Institute of the Massachusetts Department of Public Health and contained only the statement that “[t]he substance was found to contain: Cocaine.”

The court held that it was reversible error for the trial court to receive in evidence, over objection, the sworn certificates because they were the functional equivalent of the in-court testimony that the analysts would have provided had they appeared at trial. Therefore, since only the paper certificates were offered instead of the live testimony of the analysts, the court held that the defendant had been deprived of his constitutional right to meaningful cross-examination of the analysts who took the affidavit.

The court observed that an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination. Additionally, the court noted that the affidavits that the analysts submitted contained only the bare-bones statement that “[t]he substance was found to contain: Cocaine.” The court also observed that the defendant did not know at the time of trial what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed.

The court recognized that some of the methodology used by the analysts required the exercise of judgment and presented a risk of error that might be explored on cross-examination. In support, the court relied on two treatises concerning scientific evidence. One of the treatises identified “four critical errors that analysts may commit in interpreting the results of the commonly used gas chromatography/mass spectrometry analysis.” Id. at 2537. The other treatise noted that “while spectrometers may be equipped with computerized matching systems, forensic analysts in crime laboratories typically do not utilize this feature of the instrument, but rely exclusively on their subjective judgment.” Id. at 2537-2538. These examples of the type of interpretative errors that might be explored during cross-examination are the type of errors that someone like Dr. Cohn might make and not the type of human errors that a laboratory technician or technologist might make.

The court placed at least one limitation on the scope of its holding. It recognized that the confrontation clause did not require the prosecution to call as a witness every individual whose testimony may be relevant “in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device.” Id. at 2532 n.l. Rather, the court observed that “[i]t is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence.” Id.

Many state and federal courts have explored the meaning of the Supreme Court’s decision in Melendez-Diaz, In Pennsylvania, the Superior Court relied on Melendez-Diaz for its decision in Commonwealth v. Barton-Martin, 5 A.3d 363 (Pa. Super 2010). In Barton-Martin, the defendant was charged with driving under the influence of alcohol. The defendant’s blood was taken and analyzed at Hanover Hospital. At trial, the commonwealth introduced a hospital lab report into evidence showing that the defendant’s blood alcohol content was .209 percent. The witness used by the commonwealth to lay a foundation for the introduction of the hospital lab report was the hospital’s laboratory administrative director and custodian of records. Although she testified about the chain of custody of the defendant’s blood sample and the equipment and methods used to test the defendant’s blood, she was not the person who tested the blood. The Superior Court held that the defendant’s rights under the confrontation clause were violated and that the lab report was inadmissible because the commonwealth did not summon at trial the analyst who prepared the lab report.

The defendants in the present cases contend that the holdings in Melendez-Diaz and Barton-Martin require the commonwealth to call at trial the laboratory technologists and technicians who handled their blood sample and used the gas chromatograph / mass spectrometry machine. The defendants and the commonwealth may call those laboratory technologists and technicians to testify at trial. The failure, however, of the commonwealth to do so does not violate the defendants’ Sixth Amendment right to confrontation because Dr. Cohn’s proposed testimonv concerning the substances in the defendants’ blood does not contain any testimonial hearsay.

The factual settings in Melendez-Diaz and Barton-Martin are significantly and importantly different from the cases presently before the court. As noted above, Melendez-Diaz and Barton-Martin involved the introduction of documents. In Melendez-Diaz, those documents were notarized certificates. In Barton-Martin, the document was a hospital laboratory report.

Unlike in Melendez-Diaz and Barton-Martin, Dr. Cohn will testify at trial to the facts and opinions contained in his report. The documents in Melendez-Diaz and Barton-Martin were objectionable because they were testimonial hearsay. In Melendez-Diaz, the certificates contained the opinions of analysts at the State Laboratory Institute of the Massachusetts Department of Public Health who opined that the substances they had analyzed contained cocaine. In Barton-Martin, the hospital lab report contained the opinion that the defendant’s blood alcohol content was .209 percent. Although the hospital’s laboratory administrative director testified at trial, it was not her opinion that was contained in the hospital lab report.

Barton-Martin also illustrates that a defendant’s Sixth Amendment right to confrontation is not satisfied by having someone present at trial to testify who is knowledgeable but is merely a surrogate for the declarant of the testimonial hearsay. In United States v. Blazier, 2010 CAAF LEXIS 1053, No. 09-0441, slip op. at 10-11 (C.A.A.F. Dec. 1, 2010), the court observed that:

While reasonable minds may disagree about what constitutes testimonial hearsay, there can be no disagreement about who is the “witness” the accused has the right to confront. That “witness” is the declarant.... Accordingly, the right of confrontation is not satisfied by confrontation of a surrogate for the declarant.... Furthermore, “reliability” is no substitute for this right of confrontation....While “reliability” is the end, the right of confrontation is the means, and it is the means (rather than the end) that the Sixth Amendment insists upon.

Similarly, an expert witness may not act as a conduit for repeating testimonial hearsay. In United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009), the court explained that the Supreme Court’s holding in Crawford does not prohibit “expert witnesses from offering their independent judgments merely because those judgments were in some part informed by their exposure to otherwise inadmissible evidence.” The court also recognized the danger that an expert might be “used as little more than a conduit or transmitter for testimonial hearsay.” Id. It held that the question when applying Crawford to expert testimony is “whether the expert is, in essence, giving an independent judgment or merely acting as a transmitter for testimonial hearsay.” Id.

The defendants contend that the data from the gas chromatography/mass spectrometry machine upon which Dr. Cohn relies constitutes the testimonial hearsay statements of the laboratory technicians and technologists who use the machine. This court and other courts that have considered this issue have not agreed with the defendants.

Pennsylvania and Federal Rule of Evidence 801(a) define a “statement” as either an “oral or written assertion” or “nonverbal conduct of a person, if it is intended by the person as an assertion.” Additionally, Pennsylvania and Federal Rule of Evidence 801(b) define “declarant” as “a person who makes a statement.” Based, in part, on these rules of evidence, courts throughout the country have recognized that machine-generated data and printouts are not hearsay statements because machines are not declarants and their data and printouts are not statements. Therefore, machine-generated data and printouts are not testimonial hearsay. United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (“[T]he confrontation clause does not forbid the use of raw data produced by scientific instruments, though the interpretation of those data may be testimonial.”); United States v. Washington, 498 F.3d 225, 230-231 (4th Cir. 2007) (“The raw data generated by the diagnostic machines are the ‘statements’ of the machines themselves, not their operators.”); United States v. Blazier, 2010 CAAF LEXIS 1053, No. 09-0441, slip op. at 16 (C.A.A.F. Dec. 1, 2010); State of New Mexico v. Bullcoming, 147 N.M. 487, 226 P.3d 1, cert. granted, 131 S. Ct. 62 (2010); see also United States v. Lamons, 532 F.3d 1251, 1263 (11th Cir. 2008); United States v. Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir. 2003); Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence §380 (2d ed. 1994) (“[N]othing ‘said’ by a machine...is hearsay”).

Although not of constitutional significance, the rules of evidence have an impact on Dr. Cohn’s proposed testimony. Machine-generated data and printouts may be relied upon by an expert witness subject to the rules of evidence governing expert testimony.

Pa.R.E.703 provides the following rule on the bases of an expert’s opinion:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Additionally, unlike its federal counterpart, Pa.R.E. 705 requires an expert to “testify as to the facts or data on which the opinion or inference is based.”

At trial, Dr. Cohn will have to establish that the data and printouts produced by the gas chromatography/mass spectrometry machine are of a type reasonably relied upon by forensic toxicologists. He will also have to testify about the data and printouts because they are the bases of his opinion as to what substances are in the defendants’ blood samples. In Bullcoming, 147 N.M. at 496, 226 P.3d at 10, the court “strongly suggested[ed] that, in future cases, the State admit into evidence the raw data produced by the gas chromatograph machine to supplement the live, in-court testimony of its forensic analyst...[so that] the jury will be able to ascertain first hand the accuracy and reliability of the analyst’s testimony regarding a defendant’s BAC.” Under Pennsylvania’s rules of evidence, it would appear that the admission of the data and printouts is mandatory since they are the data upon which Dr. Cohn’s opinion is based.

The court notes that Pa.R.Crim.P. 573(B)(1)(e) requires the commonwealth to disclose to the defendant’s attorney “any results or reports of scientific tests” provided that “they are material to the instant case.” The court holds that the data and printouts produced by the gas chromatography / mass spectrometry machine are results of scientific tests that are material to any case in which Dr. Cohn will testify and, therefore, should be disclosed by the commonwealth as part of mandatory discovery.

III. Conclusion

The interplay between the confrontation clause, the Pennsylvania Rules of Evidence and expert scientific testimony is a fascinating topic with many more twists and turns than this opinion discusses. Any court addressing such issues should be mindful of the Supreme Court’s admonition in Melendez-Diaz, 129 S.Ct at 2536, that:

[T]here are other ways - and in some cases better ways - to challenge or verify the results of a forensic test. But the Constitution guarantees one way: confrontation. We do not have license to suspend the confrontation clause when a preferable trial strategy is available.

The court addresses in this opinion only the particular issues in the two cases that are before it. This opinion does not address, for example, the issue of whether or not an expert may provide an opinion that is based, in part or in whole, on testimonial hearsay. See State v. Dilboy, 160 N.H. 135, 151, 999 A.2d 1092, 1104 (N.H.2010) (The court concludes that test results are testimonial hearsay, reviews various approaches taken by other courts to this issue, and holds that having an expert whose opinion is based on such testimonial hearsay does not violate the confrontation clause.); United States v. Turner, 591 F.3d 928(7th Cir. 2010) (reference by expert during his examination to an analysis of a nontestifying analyst’s report that the court deemed to be testimonial hearsay did not violate the confrontation clause).

This court also recognizes the importance of understanding the science involved. Scientific testing that does not involve machine-generated data may require the commonwealth to provide someone other than just an expert like Dr. Cohn at trial. See People v. Dendel, 2010 Mich. App. LEXIS 1602, No. 247391 (Mich. Ct.App. Aug.24, 2010) (the finding of a nontestifying toxicologist that the deceased’s glucose level was zero at the time of death was the fact on which the testifying expert based his opinion and was testimonial hearsay). The Supreme Court may address some or all of these issues when it renders a decision in State of New Mexico v. Bullcoming, 147 N.M.487, 226 P.3d 1, cert. granted, 131 S.Ct. 62 (2010).

For all of the foregoing reasons, the court denies the defendants’ in limine motion to preclude Dr. Cohn from testifying at trial unless any laboratory technicians and technologists who used the gas chromatography / mass spectrometry machine also testified. Since Dr. Cohn’s proposed testimony does not implicate any testimonial hearsay, it does not run afoul of the confrontation clause.

      . The court understands that the commonwealth does not intend to seek to introduce Dr. Cohn’s reports into evidence. Rather, Dr. Cohn will testify in accordance with his reports. With Dr. Cohn present to testify, his reports would be inadmissible if objected to by the defendants. See Cotia Steel v. M/V Jag Vidya, 1996 U.S. Dist. LEXIS 5580 (E.D. La. April 22, 1996). (In sustaining an objection to the introduction into evidence of two testifying experts’ reports, the court noted that the Federal Rules of Evidence do not allow for the introduction of expert reports into the record in the face of an objection by an opposing party.) Like the Federal Rules of Evidence, the Pennsylvania Rules of Evidence would bar the introduction of Dr. Cohn’s reports into evidence if the defendants objected.

      . In the findings section of both of his reports, Dr. Cohn notes that the controlled substance at issue “was detected by immunochemical assay.” Based on his testimony about the initial screening tests, it is unlikely that this finding is one about which he would need to testify. If, however, Dr. Cohn would testify about the initial screening tests, this court does not have enough information about them to determine if such testimony would implicate testimonial hearsay. The court does not know if the doctor’s finding is based on a machine’s data or whether it is based on the opinion of a laboratory technician or technologist.