author: NEALON, J.,

text:
    Ogozaly v. American Honda Motor Co. Inc.

      C.P. of Lackawanna County,
    no. 98 CV 2647.

      Daniel W. Munley, for plaintiff.

      Marc E. Wolin, for defendant.
    March 16, 2004
   NEALON, J.,

Presently pending for disposition is the second motion of plaintiff John F. Ogozaly for leave of court to serve financial wealth discovery upon defendant American Honda Motor Co. Inc. pursuant to Pa.R.C.P. 4003.7. Unlike his earlier request, Ogozaly’s current motion and supporting exhibits aver facts establishing a prima facie basis for recovering punitive damages from Honda. Therefore, for the reasons set forth below, his motion for leave of court to conduct financial wealth discovery will be granted subject to the parties’ execution of a confidentiality agreement regulating the dissemination of that discovery.

I. PROCEDURAL HISTORY

Ogozaly commenced this action against Honda based upon an accident which occurred on June 15,1996, when a three-wheeled all terrain vehicle (ATV) manufactured by Honda allegedly overturned while Ogozaly was operating it, causing him to suffer severe injuries and paralysis. (See dkt. entry no. 4, ¶5.) Ogozaly has asserted claims for strict liability, misrepresentation, breach of warranty and negligence for which he seeks to recover compensatory and punitive damages. (Id., ¶¶16, 20, 26, 32, 37,42.) Honda did not file preliminary objections to Ogozaly’s claim for punitive damages, nor has it sought to dismiss that claim by way of summary judgment.

Ogozaly originally presented a motion for leave of court to conduct discovery under Pa.R.C.P. 4003.7 by obtaining information and documents regarding Honda’s wealth or net worth in connection with his punitive damages claim. Honda opposed Ogozaly’s request on the grounds that Ogozaly had not identified a specific defect in the subject ATV or articulated any outrageous, willful or wanton conduct by Honda that would warrant a claim for punitive damages. (Id., no. 55, pp. 2,9.) Honda argued at that time that because of Ogozaly’s “complete and utter failure to produce any evidence in the past five years regarding a defect, American Honda should not be forced to produce financial data relating to punitive damages at this time.” (Id., no. 50, p. 4.)

By memorandum and order dated June 9, 2003, we interpreted Rule 4003.7 as incorporating the common-law requirement that obligates a plaintiff to aver specific facts establishing a prima facie basis for recovering punitive damages as a condition precedent for securing financial wealth discovery. Ogozaly v. American Honda Motor Co. Inc., 104 Lacka. Jur. 354,357-61 (2003). Since Ogozaly had not alleged any facts substantiating his punitive damages claim, we denied his motion for leave to serve discovery under Rule 4003.7. However, we expressly noted that the denial of Ogozaly’s discovery motion was without prejudice and stated:

“Our denial of Ogozaly’s motion will be without prejudice to his right to seek discovery at a later date regarding Honda’s wealth in the event he produces an expert report, identifies the defect at issue, and furnishes a factual basis for his punitive damages claim, [citations omitted] For that reason, an order will be entered denying Ogozaly’s discovery motion without prejudice to his right to revisit this issue following the completion of discovery, assuming arguendo that he is able to identify a factual basis for his punitive damages claim.” Id. at 361-62.

Ogozaly subsequently produced liability reports from a design and warnings expert, Edward W. Karnes Ph.D., a product safety expert, William F. Kitzes J.D., of Consumer Safety Associates, a motorcycle dynamics consultant, Mr. Randy Nelson, and a professional engineer and certified safety professional, Michael A. Burleson P.E., CSP. Ogozaly maintains that “these reports both identify the design defects at issue and provide a factual basis for [his] punitive damages claims.” (Dkt. entry no. 61, p. 9.) As a result, he has submitted a second “Motion for leave of court to serve discovery pursuant to Pa.R.C.P. 4003.7.” {Id., no. 60.) Honda objects to Ogozaly’s discovery request and contends that his expert “reports do not even remotely approach the standard established” in our earlier ruling as “they merely supply blanket conclusory opinions against American Honda without any factual basis, without any empirical data to support them, without any analysis as to how the alleged defect caused the accident, and without any demonstration that an alternative design existed.” (Id., no. 63, p. 4.) Thus, it is necessary to consider the substance of Ogozaly’s expert reports to determine whether they provide a sufficient basis for financial wealth discovery under Rule 4003.7.

II. FACTUAL BACKGROUND

Dr. Edward W. Karnes has authored a 13-page report addressing Honda’s three-wheeled ATV design and warnings, their causal relationship to Ogozaly’s accident, and Honda’s alleged knowledge of the ATV’s defective design, inadequate warnings and foreseeable risks prior to Honda’s manufacture of the subject ATV. The specific defects identified by Dr. Karnes include its “rider-active design involving the three-wheeled configuration, the short wheel base, the narrow track, the solid rear axle, and the high center of gravity.” The rider-active design allegedly makes “stability and maneuverability . . . solely a function of the operator’s ability to use appropriate body movements and weight shift” and “provides a minimal margin of error for the operator to react to loss-of-control situations that can occur suddenly” because of the three-wheeled ATV’s susceptibility to tip or roll over. (Dkt. entry no. 60, exhibit A, pp. 2, 6.) According to Dr. Karnes, this design defect rendered the ATV “unreasonably dangerous” and was a “substantial cause” of Ogozaly’s accident and injuries. (Id., p. 2.)

Dr. Karnes is also critical of the warnings and safety information which accompanied Honda’s three-wheeled ATV and states that they failed to adequately “alert a user that the ATV because of its short length, narrow track, high center of gravity, absence of a differential, and its three-wheeled configuration, will tip or flip over suddenly and without warning during routine riding maneuvers.” He remarks that the warnings are deficient for neglecting to inform the operator about the need for safety training and protective equipment prior to operating the vehicle. Dr. Karnes believes that Ogozaly’s “inability to successfully maintain stability of the vehicle” was attributable to “his inadequate knowledge of specific hazards associated with the design” and that the warning defect was a substantial cause of the accident and injuries. {Id., pp. 2-3.)

The bulk of the Karnes’ report quotes from Honda documents, correspondence and testimony which reportedly reflect proof of Honda’s knowledge of the ATV’s defects and ATV operators’ ignorance of the vehicle’s unreasonable dangerousness prior to the manufacture of the Ogozaly ATV. Dr Karnes quotes at length from Honda memoranda from the mid-1980s acknowledging that the three-wheeled ATV “is more difficult to operate than it appears” since “[jjust turning the handle bars will not turn the vehicle” such that operators “have to use [their] whole body to keep balance and to control the ATV.” (Id., p. 8.) His report chronicles a dispute which arose between Honda and U-Haul International over U-Haul’s use of more prominently displayed and strenuously worded warnings on Honda’s AT Vs which were leased to customers by U-Haul. On September 7,1984, a Honda representative forwarded a letter to U-Haul stating that Honda was “surprised and dismayed, in a number of ways, at your company’s apparent feeling that an additional label was necessary on U-Haul’s ATVs.” Honda objected to U-Haul’s use of “the universal poison sign, i.e., the skull and crossbones” and its enlarged warnings stating that “ALL ATVs CORNER STRANGELY — SEE USER’S GUIDE” and “ATVs FLIP EVERY WHICH WAY — SEE USER’S GUIDE.” Honda characterized the labels as “misleading and untrue” and requested “in the strongest possible way that [U-Haul] remove these labels immediately.” (Id., pp. 3-4.)

Honda also reminded U-Haul that under their indemnity agreement, Honda agreed to defend and indemnify U-Haul in product liability lawsuits “so long as the product was delivered to the customer without modification of any kind as when it was delivered by [Honda] to U-Haul.” Honda advised U-Haul that it considered U-Haul’s addition of its own “warning label as a modification and as a violation of that [indemnity] agreement,” thereby suggesting that Honda would not defend and indemnify U-Haul in ATV litigation unless the warning labels were removed. (Id., p. 4.) U-Haul representatives replied to Honda in separate letters dated September 14,1984, stating that Honda’s “existing decals have some serious deficiencies with regard to warning our customers” and that U-Haul’s additional decal “is a vastly more readable, appropriate, and proper legal warning to users than the unreadable and inadequate warning that the Honda decal provided.” (Id., pp. 4-5.) Nevertheless, Honda never adopted a facsimile of the U-Haul warnings on its three-wheeled ATVs.

Dr. Karnes’ report likewise quotes from written communications that Honda received from Polaris Industries in 1985 setting forth recommended changes to Honda’s warnings. Polaris Industries stated, inter alia, that “the three-wheelers should have a hang tag on it (sic) at the point of sale telling a prospective buyer that four-wheelers are safer or more stable,” that Honda “should recommend only four-wheelers for non-adults,” and that “[t]he warnings should relate the seriousness of not heeding the warnings — be sure the consumer knows that death or serious injury can result.” However, those recommendations were reportedly ignored by Honda. (Id., p. 5.)

The Karnes’ report references a variety of other materials which ostensibly document “Honda’s knowledge of users’ misperceptions of safety” and its knowledge of “the stability risks of its ATVs.” (Id., pp. 6, 8-9.) Dr. Karnes opines that this “illusion of stability and safety” was created “by Honda’s deceptive and misleading advertising” regarding the safety of three-wheeled ATVs. (Id., p. 6.) Honda’s advertising and promotional materials purportedly represented that three-wheeled ATVs “were safe, stable, easy to operate and usable on all terrains” and Honda’s commercials “portrayed carefree uses of the vehicle” with “children performing daring feats in apparent safety.” (Id., p. 11.) The video “ads failed to inform the viewers that the [featured] riding was performed by experienced and professional riders — some of whom experienced loss-of-control situations during the filming sequences.” (Id.) Honda’s advertisements allegedly misled the consuming public about the true dangers inherent in ATVs by creating this “illusion of stability and safety.” (Id.)

Furthermore, although Honda had received a host of safety alerts from the Consumer Protection Safety Commission (CPSC) concerning accidents and injuries associated with three-wheeled ATVs, it apparently neglected to provide that information to its dealers. Rather, as more consumers purchased the safer four-wheelers and existing inventories of three-wheeled ATVs resultantly grew, Honda encouraged its “dealers to move out their present inventories of three-wheelers,” and urged them to keep their demonstration rides “as short as possible” and to avoid the “wild demo with wheelies and runs on two wheels [that] may be all right for the teenager or enthusiastic adult” but not for the mother “if she is observing” as she must “be convinced of the machine’s stability and safety.” (Id., pp. 7, 10.) Dr. Karnes submits that Honda ignored mounting evidence of deaths and serious injuries from design and warnings deficiencies in the three-wheeled ATVs and continued to aggressively promote that product as safe despite this knowledge. (Id., p. 10.)

Dr. Karnes quotes extensively from Honda records that pre-date the manufacture of Ogozaly’s ATV and which evidence Honda’s knowledge of the need for formal training programs for ATV operators prior to their operation of ATVs. Internal memoranda from “as early as the mid-1970s” state that Honda’s ATVs “do not handle at all like motorcycles and specialized training is needed to ride [them]” and conclude that Honda could “put together a program that will not be costly to [Honda] and [could] be implemented and staffed by the dealers.” (Id., p. 12.) Additionally, in its own testimony before the U.S. House Subcommittee on Commerce, Consumer and Monetary Affairs, Honda described its “evidence, both from the public and private sectors, that training in the use of this vehicle is effective in reducing accident rates.” (Id.) Notwithstanding that fact, Honda did not develop or implement such a training program for its ATV customers and instead relied solely upon its owner’s manuals. (Id., pp. 12-13.)

Similar assertions are contained in the product safety report ofWilliam Kitzes. In his 16-page report, Mr. Kitzes notes that “[a]s early as March, July and August of 1984, clearly before the subject ATV was manufactured, in successive letters to Tetsuo Chino, President of American Honda, the Consumer Products Safety Commission had informed Honda of the ‘dramatic rise in the number of injuries associated with three-wheeled ATVs and stated they were ‘extremely concerned.’ ” (Dkt. entry no. 60, exhibit C, p. 3.) Mr. Kitzes observes that in December 1984, the CPSC and the ATV industry safety organization, Specialty Vehicle Institute of America (SVIA), jointly issued a consumer safety alert designed to inform consumers of ATV dangers and the high number of injuries and deaths associated with ATV use. Despite the fact that the safety alerts were reissued in March 1985, August 1985 and June 1986 as the injury statistics grew, Honda failed to distribute these alerts to purchasers or operators of ATVs even though its own “representative was the chairman of the SVIA Board of Trustees.” (Id., P- 4.)

Not unlike Dr. Karnes, Mr. Kitzes refers to Honda’s testimony before the House Subcommittee acknowledging “that safety awareness and training would result in lowering the accident rate and increasing the safety of its customers” and that “training programs can significantly reduce accidents.” Nonetheless, Honda purportedly failed to implement any training programs and continued to market the ATVs “as safe family fun over ‘all terrain’ when they knew that there were specific limitations to the safety of the vehicles.” {Id., p. 4.) In addition, Honda’s “[tjelevision advertisements depicted Honda ATVs traversing rough terrains and being easily driven by children.” Its print ads affirmatively represented that ATVs could travel “practically effortlessly,” “over an astonishing array of terrain,” “over rocks and fallen logs,” “darn near everywhere,” “easily over most obstacles,” “tackling the just-about impossible” and over “some of the most tortuous terrain on earth.” Mr. Kitzes maintains that Honda published these advertisements even though it knew that such operation “was often not true.” {Id., p. 5.)

Mr. Kitzes references many of the same Honda documents that were quoted in Dr. Karnes’ report. The Kitzes report also discusses the CPSC’s notice to Honda in August 1984 that it was “extremely concerned about the dramatic increase in injuries associated with ATVs and the apparent doubling of injuries between 1983 and 1984.” The CPSC suggested rider training, dealer programs, safety publicity and promotion, mailing safety data to ATV owners, standards for labeling and instruction, and paid advertisements and TV ads to address these issues. {Id., p. 6.) Mr. Kitzes notes that in 1985, the SVIA likewise recommended a mass mailing “to increase awareness of safe riding practices and actually prevent injuries.” {Id., p. 7.) These events culminated with the CPSC vote on December 12, 1986, authorizing commencement of an enforcement action against Honda under the Consumer Product Safety Act to implement “a refund program that would essentially recall all three-wheeled ATVs” by allowing “consumers to return their ATVs to the manufacturer for a reasonable refund.” The refund program sought by the CPSC “also included a requirement to provide notice and warnings to all past, present, and future ATV owners and users about catastrophic ATV injuries and the danger of rolling over, among other safety issues.” (Id., p. 9.) However, the refund program was never implemented by Honda. (Id.)

After citing a host of other reports and records, Mr. Kitzes concludes that “Honda’s continuous promotion of [its] ATVs as safe family fun is at odds with [its] ever-growing knowledge of the unreasonably dangerous conditions created by the foreseeable use of [its] ATVs.” His report notes that “it is clear that Honda had prior notice and was well aware of the dangers associated with the foreseeable use of ATVs prior to John Ogozaly’s catastrophic injury.” Hence, he opines:

“Given Honda’s knowledge of hundreds of thousands of injuries and deaths associated with ATVs; given Honda’s knowledge of the defective and unreasonably dangerous characteristics of [its] ATVs; given Honda’s knowledge of the latent and unexpected nature of the danger to ATV users; and given the tens of millions of dollars Honda spent to promote ATVs as safe family fun despite [its] knowledge of the dangers; it is apparent that Honda acted with clear, conscious and reckless disregard for the safety of ATV users.” (Id., p. 13.)

Ogozaly’s motorcycle dynamics consultant, Mr. Randy Nelson, has investigated over 1,000 ATV accidents and has authored technical papers addressing ATV safety, stability and maneuverability which have been published by the Society of Automotive Engineers. (Dkt. entry no. 60, exhibit D, pp. 1, 4.) Mr. Nelson has indicated that ATVs “will tip easily although appearing very stable and friendly” and “will resist turning and at times be difficult to maintain directional control.” Since its “three-wheel design and live axle . . . resist turning unless the inside tire is allowed to slip against the ground,” simple turning maneuvers require “special techniques to allow the traction of the front tire to overcome that of the inside tire.” (Id., p. 4.) Moreover, “[s]light changes in speed, terrain, body position, or braking can affect the operator’s ability to compensate for the vehicle’s instability,” and, in light of its triangular wheeled shape, “[i]f one rear wheel encounters an uneven terrain feature, a roll motion is transmitted to the ATV, the rear wheels cannot articulate and the whole vehicle will tip.” (Id., p. 5.) Mr. Nelson submits that the ATV “should have a longer wheel base, wider track width, and a center of gravity that would allow the ATV to slip the tires against the ground rather than tip the vehicle.” (Id.) Mr. Nelson expresses the opinion that Ogozaly’s ATV “was being operated in a reasonable and foreseeable manner at the time of the accident” and that its defective condition was “the proximate cause of this accident and Mr. Ogozaly’s injuries.” (Id.)

Finally, Ogozaly’s engineering expert, Michael A. Burleson P.E., CSP, has authored a seven-page report identifying alleged design deficiencies which were the “direct cause” of the Ogozaly accident. Specifically, Mr. Burleson indicates that “[t]he triangular geometry of the three-wheel all terrain vehicle produces a tip axis formed between the front tire and either rear tire.” (Dkt. entry no. 60, exhibit B, p. 4.) He observes that “[t]he relatively high positioning of the system center of mass of this vehicle and rider, combined with a short wheel base and narrow track, results in the propensity of the three-wheel all terrain vehicle to upset with small to moderate forces created through turns, acceleration, deceleration modes, and/or terrain inputs.” (Id., pp. 4-5.) He further states that years of testing “have shown conclusively time and time again that the geometry of the three-wheel ATV design causes the vehicle to upset or the rider to lose control much too easily during turns, deceleration, or terrain feature encounters” and “that four-wheel all-terrain vehicles provide greater lateral stability” during those same activities. (Id., p. 5.)

Accordingly, Mr. Burleson concludes that Ogozaly’s ATV “was defective with respect to its design and inherent lateral instability” since its “short wheel base and high system center of gravity results in the propensity of this vehicle to suddenly and unavoidably either upset or change direction causing a loss of operator control when encountering moderate terrain features or operator input at virtually any speeds above five miles per hour.” He maintains that Honda knew or should have known “that the addition of a fourth wheel to the vehicle design would significantly increase the lateral stability” and “that the failure to remove these three-wheel ATVs from the marketplace would result in ... injuries and fatalities.” (Id., p. 6.) Mr. Burleson argues that “Honda has known for many years this type of three-wheel ATV has the propensity to upset and cause severe injuries and death,” yet “[tjhere is no evidence [Honda] has ever tested operator protection devices to protect the operator in the event of a foreseeable upset.” (Id., p. 7.)

Against this factual background, Honda contends that “a review of [Ogozaly’s] expert reports reveals that [Ogozaly] is not any closer to averring specific facts to establish a legitimate basis for his punitive damages claim than before the expert reports were produced.” (Dkt. entry no. 63, p. 15.) Honda avers that “[b]ecause these reports do not establish a prima facie case for punitive damages, [Ogozaly] should not be permitted to probe into American Honda’s financial value.” (Id., p. 4.) Ergo, we must determine whether Ogozaly’s experts have adequately identified the alleged defects in the Ogozaly ATV and have articulated factual grounds for a prima facie basis for punitive damages.

III. DISCUSSION

(A) Strict Liability Claims

Honda first contends that Ogozaly’s experts have not sufficiently described a defect in the subject ATV which caused Ogozaly’s accident and injuries. Pennsylvania has adopted section 402A of the Restatement (Second) of Torts which imposes strict liability upon the manufacturer or seller of a product in “a defective condition unreasonably dangerous to the consumer or user.” Craley v. Jet Equipment & Tools Inc., 778 A.2d 701, 705 (Pa. Super. 2001). To recover in a strict products liability case, a plaintiff must prove that: (1) the product was defective; (2) the defect existed at the time the product left the hands of the manufacturer or seller; and (3) the defect caused the injury. Demmler v. SmithKline Beecham Corp., 448 Pa. Super. 425, 430-31, 671 A.2d 1151, 1153-54 (1996), appeal denied, 546 Pa. 655, 684 A.2d 557 (1996). There are three types of defective conditions which may give rise to strict liability: design defect, manufacturing defect, and failure-to-warn defect. Walton v. Avco Corp., 530 Pa. 568, 576, 610 A.2d 454, 458 (1992); Weiner v. American Honda Motor Co. Inc., 718 A.2d 305, 307 (Pa. Super. 1998).

In a defective design case, “the question is whether the product should have been designed more safely for its intended use.” Schindler v. Sofamor Inc., 774 A.2d 765, 772 (Pa. Super. 2001), appeal denied, 567 Pa. 727, 786 A.2d 989 (2001). A design defect will be found where the product “left the supplier’s control lacking any element necessary to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use.” Phillips v. Cricket Lighters, 576 Pa. 763, 841 A.2d 1000, 1005 (2003) (emphasis in original); Commonwealth, Department of General Services v. United States Mineral Products Co., 809 A.2d 1000, 1027 (Pa. Commw. 2002). If the plaintiff proceeds under a crash-worthiness or second collision theory by arguing that a design defect did not cause the accident but did cause or enhance the degree of injuries suffered, the plaintiff must also demonstrate that an alternative, safer, practicable design existed. Harsh v. Petroll, 840 A.2d 404, 417 (Pa. Commw. 2003); Colville v. Crown Equipment Corp., 809 A.2d 916, 922-23 (Pa. Super. 2002).

Under a failure-to-wam theory, “[a] product may be deemed defective if it lacks adequate warnings or instructions necessary for safe use of the product.” Demmler, supra at 431, 671 A.2d at 1154. A warning defect will be found to exist if “the user was not adequately instructed on how to use the product as the product was designed,” Weiner, 718 A.2d at 309, or where the product was “distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product.” Davis v. Berwind Corp., 547 Pa. 260, 267, 690 A.2d 186, 190 (1997). In evaluating the adequacy of a warning, “[t]he jury should view the relative degrees of danger associated with use of the product since a greater degree of danger requires a greater degree of protection.” Nowak v. Faberge U.S.A. Inc., 812 F. Supp. 492, 497 (M.D. Pa. 1992) (Nealon, J.), affirmed, 32 F.3d 755 (3d Cir. 1994).

Even if a warning is substantively sound, it may nevertheless be inadequate if its location, size, coloring or prominence is not properly calculated to “catch the attention” of consumers or users. As the Third Circuit Court of Appeals has remarked:

“A manufacturer may be liable for failure to adequately warn where its warning is not prominent, and not calculated to attract the user’s attention to the true nature of the danger due to its position, size, or coloring of its lettering. A warning may be found to be inadequate if its size or print is too small or inappropriately located on the product. The warning must be sufficient to catch the attention of persons who could be expected to use the product, to apprise them of its dangers, and to advise them of the measures to take to avoid these dangers.” Pavlik v. Lane/Tobacco Exporters International, 135 F.3d 876, 887 (3d Cir. 1998) (quoting and expressly adopting Nowak, supra). Moreover, the plaintiff’s actual failure to read a warning label does not necessarily bar recovery “where the plaintiff is challenging the adequacy of the efforts of the manufacturer to communicate the dangers of the product to the buyer or user.” Pavlik, 135 F.3d at 886 (quoting Nowak, 812 F. Supp. at 498). “This is because manufacturers cannot rely upon a presumption that the victim read a warning to shield themselves from liability for warnings that are inadequate precisely because they are not presented in a manner sufficient to attract the user’s attention.” Pavlik, 135 F.3d at 887.

Ogozaly’s experts have identified design defects which include the three-wheeled ATV’s triangular configuration, short wheel base, narrow track, solid rear axle, high center of gravity, and absence of a differential that make it overly susceptible to tipping and rolling during normal operation at safe speeds. These experts opine that the ATV should have a longer wheel base, wider track width, and a center of gravity that would permit the tires to slip against the ground rather than tip the vehicle. They identify the four-wheeled ATV as a safer, alternative design and state that the addition of a fourth wheel significantly increases the ATV’s lateral stability. Thus, Ogozaly’s liability experts have more than adequately addressed the alleged design deficiencies in Honda’s three-wheeled ATV.

Ogozaly’s experts have further identified apparent inadequacies in Honda’s warnings and labels which accompanied the AT Vs. Relying primarily upon documents authored or received by Honda representatives, Ogozaly’s experts describe what they maintain are glaring infirmities in Honda’s warning labels. The expert reports raise triable issues of fact regarding the substance, location and prominence of the Honda warnings and the resultant failure-to-warn defect in Ogozaly’s ATV. Despite Honda’s contentions to the contrary, Ogozaly’s experts have properly identified design and warning defects in the subject ATV, as well as the causal relationship between those defects and Ogozaly’s accident and injuries.

(B) Prima Facie Right to Punitive Damages

By virtue of the Supreme Court holding in Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 102, 555 A.2d 800, 803 (1989), the wealth of a defendant has been deemed a relevant factor for a jury to consider in determining an award of punitive damages. See Hollock v. Erie Insurance Exchange, 842 A.2d 409, 419 (2004); Judge Technical Services Inc. v. Clancy, 813 A. 2d 879, 889 (Pa. Super. 2002). A defendant’s net worth has been recognized “as a valid measure of its wealth” for purposes of punitive damages. See Sprague v. Walter, 441 Pa. Super. 1, 61-64, 656 A.2d 890, 920-21 (1995), appeal denied, 543 Pa. 730, 673 A.2d 336 (1996). The disclosure of financial wealth information is now governed by Pa.R.C.P. 4003.7 which provides that “[a] party may obtain information concerning the wealth of a defendant in a claim for punitive damages only upon order of court setting forth appropriate restrictions as to the time of the discovery, the scope of the discovery, and the dissemination of the material discovered.” (Pa.R.C.P. 4003.7.) We must determine whether Ogozaly has demonstrated a prima facie right to recover punitive damages under Pennsylvania law so as to be entitled to wealth discovery under Rule 4003.7.

To justify an award of punitive damages, the wrongful conduct of the defendant must be “outrageous.” Conduct is considered to be outrageous if it is intentional, willful, wanton, Slappo v. J’s Development Associates Inc., 791 A.2d 409, 417 (Pa. Super. 2002), or “done with a bad motive or with a reckless indifference to the interests of others.” Judge Technical Services Inc., supra. Willful or wanton conduct requires a state of mind in which the tort-feasor realizes the danger and disregards it to such a degree as to evince “a conscious indifference to the perpetration of the wrong.” Lewis v. Miller, 374 Pa. Super. 515, 520, 543 A.2d 590, 592 (1988); Dean v. Community Medical Center, 46 D.&C.4th 334, 345 (Lacka. Cty. 2000). “Reckless indifference” refers to an intentional act “of an unreasonable character, in disregard to a risk known to [the tort-feasor] or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” McClellan v. HMO of Pennsylvania, 413 Pa. Super. 128, 145, 604 A.2d 1053, 1061 (1992), appeal denied, 532 Pa. 664, 616 A.2d 985 (1992); Zazzera v. Roche, 54 D.&C.4th 225, 231-32 (Lacka. Cty. 2001). Therefore, for conduct to be considered reckless, “[i]t must involve an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.” Hall v. Jackson, 788 A.2d 390, 403 (Pa. Super. 2001); Glodzik v. WhinkProducts Co., 61 D.&C.4th 241, 261 (Lacka. Cty. 2003).

The expert reports submitted by Ogozaly establish a prima facie basis for wanton or recklessly indifferent conduct on the part of Honda so as to expose it to the prospect of an award of punitive damages. Honda’s own internal memoranda arguably reflect its knowledge of unreasonably dangerous characteristics of the three-wheeled ATV and the large number of deaths and serious injuries resulting from defects in the ATV. Correspondence and notices that Honda received from U-Haul, Polaris Industries, the CPSC and SVIA conceivably demonstrate a conscious indifference to dangers that Honda appreciated with respect to the three-wheeled ATV’s defects and the corresponding probability of death or serious injuries from those defects. Many of the same materials suggest that Honda continued to promote the three-wheeled ATV as a safe vehicle even in the face of strong evidence to the contrary. Taken as a whole, Ogozaly’s submissions satisfy the prima facie requirement under Rule 4003.7 and state a cognizable claim for outrageous, wanton or recklessly indifferent conduct. See e.g., Oberg v. Honda Motor Co. Ltd, 320 Or. 544, 553-55, 888 P.2d 8, 13 (Or. 1995) (punitive damages recoverable since the plaintiff introduced evidence that the defendants knew for many years prior to the plaintiff’s ATV accident that the ATV model which the plaintiff was operating was prone to roll-over accidents and that “an agency of the United States government undertook to investigate the safety of ATVs.”), cert. denied, 517 U.S. 1219 (1996).

In sum, we will grant Ogozaly’s motion to conduct financial wealth discovery pursuant to Pa.R.C.P. 4003.7. At the time of oral argument on February 12,2004, counsel for Ogozaly offered to execute a confidentiality agreement with Honda stipulating that Ogozaly would not divulge or disseminate Honda’s financial information and records to anyone other than Ogozaly’s counsel, expert witnesses and consultants in this litigation. Therefore, the production of Honda’s wealth discovery will be subject to the parties’ execution of an appropriate confidentiality agreement.

ORDER

And now, March 16, 2004, upon consideration of plaintiff’s second “Motion for leave of court to serve discovery pursuant to Pa.R.C.R 4003.7,” defendant’s response thereto, the materials submitted by the parties and the oral argument of counsel on February 12, 2004, and based upon the reasoning set forth above, it is hereby ordered and decreed that:

(1) Plaintiff’s motion for leave of court to conduct discovery pursuant to Pa.R.C.P. 4003.7 is granted;

(2) Within the next 10 days, plaintiff and his counsel shall execute a confidentiality agreement with the defendant agreeing not to disclose or disseminate the defendant’s financial wealth information or documentation to anyone other than the plaintiff’s counsel, witnesses and consultants in this litigation, unless permitted to do so by further order of court;

(3) Within 30 days of the date of the parties’ execution of the foregoing confidentiality agreement, defendant shall provide answers to the plaintiff’s financial wealth discovery under Pa.R.C.P. 4003.7.

      . Ogozaly has also produced expert reports from four damages witnesses, but, since those reports do not address the liability or punitive damages questions at issue, they will not be discussed in this discovery ruling.


source: Caselaw Access Project

author: CULLEN, J.,

license: Public Domain

text:
    Kane v. Douglas

      C.P. of Lancaster County,
    no. CI-02-10790.

      Thomas D. Dell, for plaintiff.

      George C. Werner, for defendants Shenk and D&E.

      James H. Thomas and Susan P. Peipher, for defendants Douglas, Vigunas and Max.
    February 5, 2004
   CULLEN, J.,

On May 27, 2003, Laura Douglas, Michael A. Vigunas and Max International Converters Inc. filed preliminary objections to the amended complaint of Darryl Kane and Nexus Professional Associates Inc. Jerry Shenk and D&E Communications Inc. filed preliminary objections to the amended complaint on May 28, 2003. For the reasons set out in this opinion, the preliminary objections will be sustained in part and overruled in part.

PROCEDURAL AND FACTUAL BACKGROUND

On December 16,2002, Darryl Kane commenced this action against Laura Douglas, Michael A. Vigunas, Max International Converters Inc., Jerry Shenk and D&E Communications Inc. by filing a praecipe for writ of summons.

On March 5, 2003, the prothonotary, at the direction of Shenk and D&E, entered a rule on Kane to file a complaint. On March 26,2003, a complaint was filed by Kane and Nexus Professional Associates Inc. All defendants filed preliminary objections, and on May 6, 2003, Kane and Nexus filed an amended complaint.

Douglas, Vigunas and Max filed preliminary objections to the amended complaint on May 27, 2003, and the preliminary objections of Shenk and D&E followed on May 28, 2003. Kane and Nexus filed a response to the preliminary objections on June 17, 2003.

The parties filed briefs in support of their respective positions, and these matters were subsequently referred to the court for resolution.

According to the amended complaint, Douglas and Vigunas are officers of Max, a Pennsylvania corporation. Shenk is an employee of D&E which is also a Pennsylvania corporation.

In November 2000, Kane entered into an oral agreement with Vigunas to perform consulting services and oversee operations of Max in exchange for $101,400. Pursuant to this agreement, Kane was to work three days per week for Max. Kane was to receive 20 percent of Max’s gross profits and was also permitted to continue consulting work with third parties.

In January 2001, Vigunas, on behalf of Max, and Kane orally agreed that Max should pursue an ATM couponing system. Max was to provide the necessary paper rolls for use in the ATM couponing system. Because Max was unable to attract or afford the experts to develop the computer software for the ATM couponing system, Kane incorporated Nexus for this purpose. In conformity with the oral agreement, Nexus was to license the ATM couponing software and Max was to provide the paper rolls to a third party which would administer and market the system. Nexus was to retain ownership of the software.

Nexus employees were to be compensated initially at less than the fair market value of their services and Nexus was also permitted to perform services for third parties to offset its operating costs. Nexus’ computers and equipment were set up at Max’s facility and Kane was permitted to operate Nexus at this location.

Plaintiffs contend that as early as December 2001, Max, without their knowledge or consent, entered into negotiations with a third party regarding the use and marketing of the ATM couponing system with Max representing that it owned the software.

The amended complaint alleges that on March 6,2002, Nexus employees were locked out of the area where the Nexus server was located at Max’s facility, and that Douglas unlawfully accessed Nexus’ computers and server. In addition, Douglas purportedly denied Kane, Nexus and Nexus’ clients access to their computers and server by causing D&E to block communication with the Nexus server.

The following day, Kane and Vigunas met and agreed that Max would release Nexus’ property in return for Kane returning property of Max’s in his possession. When Kane entered the computer room at Max’s facility to retrieve the Nexus equipment, he saw Douglas and Shenk. Shenk had a laptop computer hooked up to the Nexus server allegedly copying or downloading the software relating to the ATM couponing system from the Nexus server.

Plaintiffs allege that defendants unlawfully accessed the Nexus server and: (1) prevented Kane and Nexus’ employees from obtaining access to the Nexus server in violation of the agreement between Kane and Max; (2) prevented Nexus’ clients from obtaining access to the Nexus server in violation of the agreement; (3) unlawfully copied the ATM couponing software in violation of the agreement; and (4) provided the unlawfully copied information to third parties in order to gain an economic advantage.

Based on these allegations, Kane asserts claims against Max for breach of the agreement regarding the ATM couponing system, breach of the consulting agreement, violation of the Wage Payment and Collection Law, fraud, intentional misrepresentation and punitive damages. He seeks relief against Douglas and Vigunas for violation of the Wage Payment and Collection Law, fraud, intentional misrepresentation, and punitive damages. Kane’s remaining causes of action for conspiracy, misappropriation of trade secrets, punitive damages, and negligence are asserted against D&E based upon the acts of its employee, Shenk.

Nexus asserts causes of action for breach of the agreement regarding the ATM couponing system, misappropriation of trade secrets and punitive damages against Max. Nexus seeks to recover damages from Douglas and Vigunas based on claims for conspiracy, misappropriation of trade secrets, violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), and punitive damages. These same claims, as well as a cause of action for negligence, are also made against Shenk.

Douglas and Vigunas filed preliminary objections to the amended complaint challenging the legal and factual sufficiency of the RICO claims as well as the legal sufficiency of the claims for fraud, intentional misrepresentation and punitive damages asserted against them.

The preliminary objections of Shenk and D&E are in the nature of a demurrer to the causes of action for misappropriation of trade secrets, conspiracy, punitive damages, negligence, and RICO violations. Shenk also alleges that the RICO claims lack the requisite factual specificity.

In their briefs in opposition to the preliminary objections, plaintiffs withdrew the RICO counts against all defendants. The court, therefore, need address only the remaining issues.

DISCUSSION

The law to be applied in ruling on preliminary objections challenging the legal sufficiency of a complaint is clear. A court should sustain preliminary objections in the nature of a demurrer only where:

“the complaint is insufficient to establish the pleader’s right to relief. . . . For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts ... and every inference fairly deducible from those facts.... The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer.

“Since sustaining the demurrer results in a denial of the pleader’s claim or dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. ... If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected....” Willet v. Pennsylvania Medical Catastrophe Loss Fund, 549 Pa. 613, 619, 702 A.2d 850, 853 (1997) (quoting The County of Allegheny v. The Commonwealth of Pennsylvania, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985)).

When doubt exists as to whether a demurrer should be sustained, the doubt should be resolved in favor of overruling it. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983).

In order to state a cause of action for fraud or intentional misrepresentation, the plaintiff must establish: “(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance.” Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.2d 882, 889 (1994).

“It is well established that fraud consists of anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture.” Moser v. DeSetta, 527 Pa. 157, 163, 589 A.2d 679, 682 (1991).

Allegations of fraud must be pled with specificity. Pa.R.C.P. 1019(b); Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 587 A.2d 1346 (1991). The reason for this requirement was articulated by the Supreme Court in Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 224 A.2d 174 (1966).

“Averments of fraud are meaningless epithets unless sufficient facts are set forth which will permit an inference that the claim is not without foundation nor offered simply to harass the opposing party and to delay the pleader’s own obligations. For this reason our rules require that fraud in either a complaint or reply must be ‘averred with particularity.’ Pa.R.C.P. 1019(b). Admittedly the line between pleading facts and evidence is not always bright; therefore, we frequently condone the inclusion of statements, which except for this requirement, would be considered impertinent.... While it is impossible to establish precise standards as to the degree of particularity required in a given situation, two conditions must always be met. The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense and they must be sufficient to convince the court that the averments are not merely subterfuge.” Id. at 379-80, 224 A.2d at 179. (citation omitted)

In the amended complaint, Kane alleges that Douglas was chief executive officer of Max (¶¶4, 95, 104) and that Vigunas was the company’s president. (¶¶5, 130, 139.) With respect to each count of the amended complaint at issue, Kane also makes a general assertion that these individual defendants as an officer of Max “participated in, cooperated in and/or caused defendant Max International to engage in the tortious acts herein described.” (¶¶96, 105, 131, 140.)

A corporate officer may be personally liable for damages suffered by a third party where he knowingly participates in the wrongful act. Chester-Cambridge Bank and Trust Company v. Rhodes, 346 Pa. 427, 31 A.2d 128 (1943); Shay v. Flight C Helicopter Services Inc., 822 A.2d 1 (Pa. Super. 2003).

“The general, if not universal, rule is that an officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor; but that an officer of a corporation who takes no part in the commission of the tort committed by the corporation is not personally liable to third persons for such a tort, nor for the acts of other agents, officers or employees of the corporation in committing it, unless he specifically directed the particular act to be done or participated, or cooperated therein.” Wicks v. Milzoco Builders Inc., 503 Pa. 614, 621-22, 470 A.2d 86, 90 (1983).

Kane alleges in Counts II and III against Douglas that the actionable misrepresentations were made in January 2001, in connection with the agreement that Kane and Max would jointly pursue the ATM couponing system. (¶¶97-101, 106-110.) At no point, however, does Kane allege Douglas made any of the misrepresentations, that she was present when the statements were made or that she even knew they had been made. Allegations of fraud must be set out with particularity, and a vague assertion that Douglas “participated in, cooperated in and or caused” the corporation to engage in tortious conduct without any supporting specific factual averments is insufficient to state a cause of action against Douglas individually. Therefore, the preliminary objection to these counts will be sustained and Kane will be granted the opportunity to file an amended complaint.

A different result is warranted with respect to the identical allegations against Vigunas. Kane avers that the January 2001 agreement regarding the ATM couponing system was an oral agreement between himself and Vigunas on behalf of Max. (¶¶14-23.) Under these circumstances, the reasonable inference is that the representations referred to in Counts II and III against Vigunas (¶¶132-136, 141-145) were made to Kane by Vigunas and would be sufficient to allege the latter’s personal participation in the claimed wrongful conduct. Accordingly, the preliminary objection to these particular counts will be overruled.

Douglas and Vigunas also challenge the sufficiency of Count IV against each of them seeking punitive damages. A request for punitive damages does not constitute a cause of action. Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986); Nix v. Temple University of the Commonwealth System of Higher Education, 408 Pa. Super. 369, 596 A.2d 1132 (1991). It is a mere incident to a cause of action. Id. Count IV against both defendants will be dismissed for failure to state a cause of action, and Kane will be permitted to file an amended complaint in which he may properly plead a request for punitive damages in the ad damnum clause.

The first preliminary objection of Shenk and D&E is a demurrer to the claims of Nexus against them for misappropriation of trade secrets.

Although usually arising in an employment context, the Superior Court has indicated that a claim for misappropriation of trade secrets is not limited to such a relationship. O.D. Anderson Inc. v. Cricks, 815 A.2d 1063 (Pa. Super. 2003). The court need not discuss all of the elements necessary to state such a cause of action as defendants assert the absence of only one, i.e., an allegation that defendants made use of a trade secret. Under either the formulation referred to in O.D. Anderson Inc. v. Cricks, 815 A.2d 1063 (Pa. Super. 2003) or that cited in Den-Tal-Ez Inc. v. Siemens Capital Corp., 389 Pa. Super. 219, 566 A.2d 1214 (1989), an element of the cause of action is the improper use or disclosure of the trade secret to the owner’s detriment.

In this case, Nexus alleges that Shenk, while employed by D&E, improperly copied or downloaded the ATM couponing software from the Nexus server for Max. (¶¶35-41, 250, 256, 257, 297-299, 305, 306.) Given the lenient standard applicable to preliminary objections in the nature of a demurrer, the court cannot say as a matter of law that this activity does not constitute improper “use” or “disclosure” of a trade secret. Accordingly, this preliminary objection will be overruled.

Shenk and D&E next challenge Nexus’ claims alleging a civil conspiracy. To prove a civil conspiracy, it must be shown that two or more persons combined or agreed with intent to do an unlawful act or to do an otherwise lawful act by unlawful means. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Brinich v. Jencka, 757 A.2d 388 (Pa. Super. 2000). Proof of malice, i.e., an intent to injure, is essential in proof of a conspiracy. Skipworth by Williams v. Lead Industries Asso ciation Inc., 547 Pa. 224, 690 A.2d 169 (1997); Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979).

Defendants argue that Nexus has failed to allege a common purpose between them and the other defendants at the time Shenk performed the acts about which they complain. Contrary to defendants’ position, Nexus has alleged that Shenk, acting on behalf of D&E, agreed and conspired with Douglas and Vigunas to illegally misappropriate Nexus’ trade secrets in the form of the ATM couponing software and programs and that, in furtherance of this conspiracy, defendants engaged in or caused the downloading of the software. (¶¶244-246, 292-294.) These allegations clearly state a common, illegal purpose.

Defendants also contend that the conspiracy counts must be dismissed for the reason that in the absence of a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act. McKeeman v. Corestates Bank N.A., 751 A.2d 655 (Pa. Super. 2000). For the reasons stated earlier, the court found that the allegations of misappropriation of trade secrets were adequate to withstand a demurrer on the ground asserted. Since the underlying cause of action remains viable, the conspiracy count cannot be dismissed.

The preliminary objections questioning the legal sufficiency of the claims for punitive damages will be sustained. As previously stated, a request for punitive damages does not constitute a cause of action and is merely incidental to one. Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986); Nix v. Temple University of the Commonwealth System of Higher Education, 408 Pa. Super. 369, 596 A.2d 1132 (1991). Nexus will be permitted to amend its complaint to request punitive damages in the ad damnum clause of any count in which entitlement to such damages is supported by the facts alleged.

In order to state a cause of action for negligence, the plaintiff must demonstrate: (1) a duty or obligation recognized by the law that requires an actor to conform his actions to a standard of conduct for the protection of others against unreasonable risk; (2) failure on the part of the defendant to conform to that standard of conduct, or a breach of duty; (3) a reasonably close causal connection between the breach of duty and the injury sustained; and (4) actual loss or damages that result from the breach. Gutteridge v. A.P. Green Services Inc., 804 A.2d 643 (Pa. Super. 2002). In their preliminary objections, Shenk and D&E contend that no duty is imposed upon them by statute or case law under the circumstances.

The primary element in any negligence cause of action is that the defendant owes a duty of care to the plaintiff. Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A. 2d 1166 (2000). The determination of whether a duty exists in a particular case involves the weighing of several discrete factors which include: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and forseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Id.

In the amended complaint, Nexus alleges that Shenk is a professional provider of communication services and that D&E is a commercial provider of communication services. (¶¶280, 311.) As a result, Nexus asserts that both defendants owed a heightened duty to the general public, including Nexus, to inquire as to the ownership rights in any software applications copied or downloaded by either defendant for any of their clients. (¶¶280,311.) Nexus, however, has failed to cite any authority indicating that such a heightened duty exists as alleged, nor has it pled any facts which would permit the court to determine that there is such a heightened duty under the criteria used by the Supreme Court. See Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000). It is unclear from the amended complaint whether the cause of action asserted by Nexus is dependent upon the existence of a heightened duty of care.

At this time, the allegations of the amended complaint are simply inadequate to permit an evaluation of these claims. Accordingly, these preliminary objections will be sustained and Nexus will be allowed to amend its complaint.

In its final preliminary objection, D&E argues that it cannot be liable for any of the intentional torts allegedly committed by Shenk on the ground that Nexus has failed to allege that Shenk was acting within the scope of his employment by D&E when the conduct occurred.

An employer may be held vicariously liable for the intentional torts of its employee provided certain criteria are met. Costa v. Roxborough Memorial Hospital, 708 A.2d 490 (Pa. Super. 1998). Among these criteria is that the employee was acting within the scope of his employment. Id.

Nexus alleges in connection with the conspiracy count that Shenk was acting “in the normal course of his employment with D&E and within the scope of his employment.” (¶291.) While this allegation is not repeated in the count alleging misappropriation of trade secrets, Nexus does state that Shenk, “on behalf of defendant D&E, participated in, cooperated in and/or caused defendant Max International to engage in the tortious acts herein described.” (¶299.)

Nexus further incorporated by reference paragraph 291 of the amended complaint in this count. Under the rules applicable to preliminary objections in the nature of a demurrer, the court concludes that these allegations are sufficient. Therefore, this preliminary objection will be overruled.

For the reasons stated above, the court enters the following:

ORDER

And now, February 5,2004, upon consideration of the preliminary objections of defendants Laura Douglas, Michael A. Vigunas, Max International Converters Inc., Jerry Shenk and D&E Communications Inc. to the amended complaint of plaintiffs Darryl Kane and Nexus Professional Associates Inc., the court orders that:

(1) The preliminary objections of defendant Douglas to the counts alleging a claim for fraud and intentional misrepresentation are sustained.

(2) The preliminary objections of defendant Vigunas to the counts alleging a claim for fraud and intentional misrepresentation are overruled.

(3) The preliminary objections of defendants Douglas and Vigunas to the counts alleging a claim for punitive damages are sustained.

(4) The preliminary objections of defendants Shenk and D&E to the counts alleging a claim for misappropriation of trade secrets are overruled.

(5) The preliminary objections of defendants Shenk and D&E to the counts alleging a claim for conspiracy are overruled.

(6) The preliminary objections of defendants Shenk and D&E to the counts alleging a claim for punitive damages are sustained.

(7) The preliminary objections of defendants Shenk and D&E to the counts alleging a claim for negligence are sustained.

(8) The preliminary objection of defendant D&E to the counts alleging claims based upon vicarious liability is overruled.

Plaintiffs are granted 20 days from the date of this order to file an amended complaint.

      . The amended complaint does not indicate either the nature or purpose of this system.

      . 43P.S. §260.1 etseq.

      . The count captioned intentional misrepresentation is virtually identical to the fraud count.

      . The fraud and intentional misrepresentation counts are identical.

      . 18U.S.C. §1961 etseq.

      . Since an amended complaint may be filed, plaintiffs should note that a cause of action for fraud or intentional misrepresentation is a single tort, Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882 (1994), and should be pled as one count and not as two identical counts. In addition, all claims for punitive damages should be pled in the ad damnum clause and not as separate causes of action. Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986).

      . Pennsylvania law includes as a trade secret any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. Den-Tal-Ez Inc. v. Siemens Capital Corp., 389 Pa. Super. 219, 566 A.2d 1214 (1989) (citing Restatement of Torts, §757 comment b).

      . Since neither Shenk nor D&E has raised the issue, both apparently concede for purposes of the preliminary objections that the ATM couponing system software is a trade secret.

      . Paragraph 289 of the amended complaint alleges that D&E is engaged in the trade and business of providing communications and computer networking services.

      . In its brief, Nexus states that defendants hold themselves out as experts in the field of communications, including computers. The essential facts must be set out in the pleadings, and statements in a brief cannot satisfy this requirement.

      . The intentional torts for which D&E is said to be liable are conspiracy and misappropriation of trade secrets. A claim for punitive damages is not a cause of action. D&E does not challenge the sufficiency of the cause of action imposing vicarious liability with respect to the negligence claim.


author: BUCCI, J.,

text:
    Commonwealth v. Cordoba

      C.P. of Berks County,
    no. 99/04.

      Adam Bompadre, assistant district attorney, for the Commonwealth.

      Eric Parisi, for defendant.
    August 2, 2004
   BUCCI, J.,

A hearing on defendant’s motion for omnibus pretrial motion for relief was held before this court on April 2, 2004. On May 24, 2004, this court granted the defendant’s motion for habeas corpus relief. The Commonwealth filed a timely notice of appeal to the Superior Court of Pennsylvania on June 23, 2004. Pursuant to the June 29, 2004 order of this court, and in accordance with Pa.R.A.P. 1925(b), the Commonwealth submitted a concise statement of matters complained of on appeal.

In this concise statement, the Commonwealth sets forth two issues. First the Commonwealth claims that the court erred in granting the defendant’s motion for a writ of habeas corpus because there was no transcript of the preliminary hearing for the court to review. This argument is without merit for two reasons. First, the Commonwealth had ample opportunity to provide the court a transcript, if such transcript even exists, prior to the omnibus pretrial hearing and failed to do so. Defense counsel filed a motion for omnibus pretrial relief in January of 2004. The hearing did not take place until April 2,2004. The Commonwealth cannot now complain that the court failed to review evidence, which they have failed to provide.

Secondly, the Commonwealth had the opportunity at the hearing to present not only all the evidence they presented at the preliminary hearing, but even to present additional evidence. See Commonwealth v. Keller, 823 A.2d 1004 (Pa. Super. 2003). “Although a habeas corpus hearing is similar to a preliminary hearing, in a habeas corpus proceeding, the Commonwealth has the opportunity to present additional evidence to establish that the defendant has committed the elements of the offense charged.” Keller at 1010, quoting Commonwealth v. Fountain, 811 A.2d 24, 25 (Pa. Super. 2002). The Commonwealth had the opportunity to present all the evidence presented at the preliminary hearing as well as any additional evidence to establish a prima facie case. Therefore, the Commonwealth was not prejudiced by the lack of a transcript from the preliminary hearing.

The Commonwealth’s concise statement also contains the blanket statement that the court erred in granting the defendant’s motion for a writ of habeas corpus “because the Commonwealth established a prima facie case.” Concise statement (CS) at 1. Since the issue at hand in all habeas corpus hearings is whether the Commonwealth has established a prima facie case, the court feels that this statement is too vague to assist the court in any way. We will nonetheless attempt to address the Commonwealth’s appeal.

The Commonwealth has charged the defendant with recklessly endangering another person on the grounds that the defendant had “unprotected” consensual sex with the alleged victim without informing the alleged victim that he was infected with human immunodeficiency virus (HIV).

HIV is a deadly epidemic that has created serious challenges to society as a whole and to the criminal justice system. Often, the law lags behind new developments in science and technology. With respect to HIV and acquired immune deficiency syndrome (AIDS), however, the legislature has had the opportunity to address the issues and has seen fit to pass several laws. For example, there are statutory prohibitions on prisoners, making it a crime for them to expose guards to HIV-positive bodily fluids. 18 Pa.C.S. §2703. Similarly, the legislature has enacted legislation elevating prostitution from a misdemeanor to a felony where the defendant engages in prostitution knowing he or she is HIV positive. 18 Pa.C.S. §5902.

But the legislature, despite having ample opportunity to do so, has not expanded such laws to the general public. The State of Pennsylvania has not criminalized the act of having consensual sex while knowingly carrying a sexually transmitted disease. Perhaps the legislature considered the fact that those with HIV and AIDS already bear a heavy burden, and to further stigmatize them would accomplish little. Further, this court has found no case law in which individuals, other than prisoners and prostitutes, have been successfully prosecuted under 18 Pa.C.S. §2705 for engaging in behavior which may spread HIV or AIDS to others. Penal statutes are to be strictly construed. Commonwealth v. Tate, 572 Pa. 411, 816 A.2d 1097 (2003). “[A] court may not achieve an acceptable construction of a penal statute by reading into the statute terms that broaden its scope.” Tate at 413, 816 A.2d at 1098. (citation omitted) Therefore, this court will not expand 18 Pa.C.S. §2705 to include a potentially huge range of behavior that could not have been contemplated by the legislature at the time of passage. Furthermore, as a practical matter, prosecution under this statute could lead to absurd results. Consent is not a defense to the offense of reckless endangerment. Commonwealth v. Mathis, 317 Pa. Super. 362, 464 A.2d 362 (1983). Thus, under the Commonwealth’s theory, even if an HIV-positive individual informs his or her partner of this status prior to engaging in unprotected sexual activity, the statute would still be violated. A person carrying an infectious disease would commit a crime every time he/she had consensual sex. This is an absurd result, as individuals in this Commonwealth are free to make such intimate decisions outside the glare of state scrutiny. Lastly, allowing an HIV-positive individual to be prosecuted under this statute for allegedly having consensual sexual contact with another adult would open the floodgates to jilted lovers and angry spouses to file charges after a relationship has soured.

The court granted the defendant’s motion primarily for the foregoing reasons. However, even if the court agreed that the statute was applicable, the Commonwealth must produce evidence of each element of the offense charged, which it failed to do. See Commonwealth v. Engle, 847 A.2d 88, 91 (Pa. Super. 2004). In the instant case, the defendant, Samuel Cordoba, is charged with “recklessly endangering another person” in violation of 18 Pa.C.S. §2705. Therefore, at the hearing on April 2, 2004, the Commonwealth was required to present evidence that the defendant “recklessly engaged in conduct which place(d) or may (have placed) another person in danger of death or serious bodily injury.” 18 Pa.C.S. §2705. In order to find recklessness, the Commonwealth must demonstrate that the defendant knew that his conduct could or would place others in harm’s way, and that he engaged in such conduct despite this risk. “The mens rea for recklessly endangering another person is ‘a conscious disregard of a known risk of death or great bodily harm to another person.’ ” Commonwealth v. Klein, 795 A.2d 424, 427-28 (Pa. Super. 2002) (emphasis added), quoting Commonwealth v. Hopkins, 747 A.2d 910, 915-16 (Pa. Super. 2000). See also, Commonwealth v. Peer, 454 Pa. Super. 109, 684 A.2d 1077 (1996). Thus, in order to establish a prima facie case, the Commonwealth must present some evidence that the defendant knew of the risk at the time of his actions. Here, the Commonwealth failed to satisfy the “mens rea” element. At the hearing, there was evidence that the defendant was aware of his diagnosis two weeks after his last sexual encounter with the victim. See notes of testimony at 5 (NT). The alleged victim stated he last had sexual relations “approximately two weeks, give or take, prior to me making the report, initial report.” NT at 5. There is no evidence that the defendant knew he was HIV-positive when he had sexual contact with the alleged victim. On direct examination, the alleged victim stated that he didn’t ask the defendant when he was diagnosed with the disease, but only that he was presently infected. This conversation occurred two weeks after their last sexual encounter. See NT at 19. Corporal Joseph Geczi of the Berks Regional Police Department testified that, when he contacted the defendant regarding the allegations against him, the defendant indicated that he knew he was HIV-positive and also stated that Mr. Chernak (the alleged victim) knew he was HTV-positive. NT at 23. Corporeal Geczi did not, however, testify that the defendant knew he was HIV-positive at the time he came into contact with Mr. Chemak. NT at 23. There is no evidence that the defendant had a “conscious disregard of a known risk of death or great bodily harm” to the alleged victim. The Commonwealth failed to establish the necessary mens rea element of the offense charged. Therefore, the court did not err in granting the defendant’s motion for habeas corpus relief.

Unless the Commonwealth demonstrates that the defendant had HIV at the time of the contact with the victim, not only is the mens rea lacking, but the actual ability to cause death or bodily harm has not been demonstrated. It is well established that there can be no conviction for reckless endangerment without a present ability to inflict harm. See Commonwealth v. Gouse, 287 Pa. Super. 120, 429 A.2d 1129 (1981). “In construing the Crimes Code section on recklessly endangering, this court has recently determined that the common-law assault requirement of actual present ability to inflict harm must be shown in order to support a conviction under the statute.” Gouse at 124, 429 A.2d at 1131. Further, “the mere apparent ability to inflict harm is not sufficient. Danger, and not merely the apprehension of danger, must be created.” Commonwealth v. Reynolds, 835 A.2d 720, 728 (Pa. Super. 2003) (holding that, although pointing an unloaded gun would generally not be sufficient to support a conviction for recklessly endangering another person, where the Commonwealth presented evidence that there was at least one bullet in the gun, a conviction could stand). Without evidence that the defendant was, in fact, HIV-positive at the time he had sexual contact with the alleged victim, the Commonwealth has not demonstrated an actual ability to cause harm. Thus, the court did not err in granting the defendant’s motion.

Finally, there was no evidence regarding the means by which HIV is transmitted. The Commonwealth did not present an expert to testify that HIV can be transmitted through the types of sexual contact that occurred between the defendant and the alleged victim. The alleged victim testified that he and the defendant “attempted” (unsuccessfully) to engage in anal sexual intercourse, and that he and the defendant engaged in oral sex. NT at 18-19. There is nothing in the record, however, to suggest that oral sex is a known means for the spread of HIV or AIDS. Nor is there evidence that the defendant knew or should have known that oral sex created a risk that his HIV infection could be transmitted. Again, there is no evidence this defendant had a “conscious disregard of a known risk of death or great bodily harm” to the alleged victim. See 18 Pa.C.S. §2705.

“A prima facie case consists of evidence, read in the light most favorable to the Commonwealth, that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime." Engle, supra at 91. (emphasis added) At the omnibus pretrial hearing, there was no identification of the defendant by any of the Commonwealth’s witnesses. See notes of testimony, generally. Therefore, even if the Commonwealth had established that a crime occurred, they certainly did not establish that the defendant is the likely perpetrator of such crime. Thus, the court did not err in granting the defendant’s motion for habeas corpus relief.

“The decision to grant or deny a petition for writ of habeas corpus will be reversed on appeal only for a manifest abuse of discretion.” Engle at 90. This court respectfully submits that, based on the foregoing facts and arguments, the decision to grant the defendant’s motion for habeas corpus relief was not abuse of discretion and requests that the Commonwealth’s appeal be denied.

      . 18 Pa.C.S. §2705.

      . Section 2703 of the Crimes Code states that a person, while confined in a correctional facility or in the process of being transported to or from such facility “is guilty of this offense if he intentionally or knowingly causes another to come into contact with blood, seminal fluid, saliva, urine or feces by throwing, tossing, spitting, or expelling such fluid or material when, at the time of the offense, the person knew, had reason to know, should have known or believed such fluid or material to have been obtained from an individual, including the person charged under this section, infected by a communicable disease, including but not limited to, human immunodeficiency virus (HIV) or Hepatitis B.”

      . Under section 5902(a) prostitution is a third-degree misdemeanor, however section 5902 (a.l) states that “[a]n offense under subsection (a) (prostitution) constitutes a felony of the third degree if the person who committed the offense was knowingly human immunodeficiency virus (HlV)-positive or infected with the acquired immune deficiency syndrome (AIDS) virus.”

      . In Commonwealth v. Brown, 413 Pa. Super. 421, 605 A.2d 429 (1992), the defendant was charged with reckless endangerment of another in violation of 18 Pa.C.S. §2705 and the Superior Court upheld the decision to deny the defendant’s petition for habeas corpus relief, but this case is distinguishable on two grounds: First, the defendant is a prisoner, and therefore does not contradict this court’s argument that there is no case law in this area relating to those other than prisoners and those engaged in prostitution. Additionally, the facts did not involve consensual sexual relations but rather the throwing of feces onto a prison guard.


author: WETTICK JR., A.J.,

text:
    Lewis v. Magee Women’s Hospital of UPMC

      C.P. of Allegheny County,
    no. GD02-5238.

      James G. Connolly, Thomas E. Crenney and David N. Dittmar, for plaintiffs.

      Terry C. Cavanaugh, for defendant Magee Women’s Hosp.

      Christopher C. Rulis, for defendant Penn Group Medical Assoc. Inc.

      James Hartline, for defendant Brown M.D.

      Paula A. Koczan, for defendant HealthAmerica Pennsylvania Inc.

      Jason W. Manne and T. Lawrence Palmer, for defendant Commonwealth, DPW.

      Wilbur M. Otto, for MCare fund.

      Kathleen D. Hendrickson, for amicus curiae, The Family Trust.
    July 26, 2004
   WETTICK JR., A.J.,

The objection of the Department of Public Welfare (DPW) to a petition for leave to settle and discontinue minor’s claims is the subject of this opinion and order of court. The issue which this opinion addresses is whether funds for a settlement may be placed in a pooled trust rather than a special needs trust.

Petitioners are the parents of Zackery Lewis, a minor with permanent and significant mental and physical disabilities. They seek court permission to have the full amount of a partial settlement of Zackery’s medical malpractice action, less attorney fees, a Medicaid lien and expenses, paid to a pooled trust for the benefit of Zackery. DPW contends that the use of a pooled trust is inappropriate in this case; instead, a special needs trust must be used.

Zackery Lewis (date of birth — 9/22/92) presently lives with his parents. He has acute and long-term medical problems, including significant respiratory problems, feeding problems, and mild to moderate mental retardation. He will never live or work independently because of these medical problems. In their petition for leave to settle and discontinue their son’s claims, Zackery’s parents seek court permission to have the full amount of the net settlement funds of nearly $1.85 million paid into a pooled trust with The Family Trust. DPW contends that a special needs trust is more appropriate for Zackery and that this court should exercise its supervisory discretion to require the use of a special needs trust instead of a pooled trust.

Historically, Medicaid benefits have been “last resort” benefits. See generally, Waldman v. Candia, 722 A.2d 581, 585 (N.J. Super. Ct. App. Div. 1999); Calvanese v. Calvanese, 710 N.E.2d 1079, 1080 (N.Y. 1999). A person with assets, including trust assets, was not eligible for Medicaid benefits until that person exhausted those assets. Thus, it was difficult to create trusts for a disabled relative that would supplement, rather than supplant, Medicaid benefits.

Through a 1993 amendment to the Social Security Act governing Medicaid, Congress now permits the use of special needs trusts and pooled trusts to benefit persons considered to be disabled. The purpose of these trusts is to provide for the supplemental needs of persons with disabilities whose basic needs are to be met, in large part, through the Medicaid program. Funds placed in these trusts may not be considered “available” resources for purposes of assessing the beneficiary’s eligibility for Medicaid benefits. 42 U.S.C. §1396p(d)(4).

A special needs trust, also referred to as a payback trust, is a trust established by a parent, grandparent, legal guardian, or a court for the benefit of one person with disabilities. A major feature of the special needs trust is that upon the death of the beneficiary, the Commonwealth of Pennsylvania will receive from any remaining funds in the trust the amount of Medicaid payments made on behalf of the beneficiary during his or her lifetime.

A pooled trust, on the other hand, is created for more than one person with disabilities. In Pennsylvania, this type of trust is governed by the Pooled Trust Act, 62 P.S. § 1965.1 et seq. The Act provides that a pooled trust must meet the following requirements: it contains assets of more than one beneficiary; each beneficiary has a disability; the trust is managed by a nonprofit corporation; and a separate account is maintained for each beneficiary of the trust, but, for purposes of investment and management of funds, these accounts are pooled by the trust. Accounts in the trust may be established by a parent, grandparent, or legal guardian of an individual with a disability, by an individual with a disability, or by a court. A primary difference between a special needs trust and a pooled trust is that with a pooled trust, upon the death of the beneficiary, the amounts remaining in the beneficiary’s account may be retained by the trust for the benefit of other beneficiaries or other individuals with disabilities. This money retained by the trust is not available to the Commonwealth to repay the Medicaid payments made during the beneficiary’s lifetime.

In this case, the pooled trust into which Zackery’s parents seek to deposit the funds is managed by The Family Trust (a nonprofit corporation). The Family Trust is a mission-based trust with a professional staff of social workers, investment experts, corporate counsel, and volunteer board members. Its mission is to serve people with disabilities and, through trust management, help them lead more fulfilling lives than would be possible at poverty levels. It works with each beneficiary to enable him or her to lead a productive life in the community.

The Family Trust serves over 700 individuals with combined assets of over $12 million. It requires only a minimum balance of $200 for a disabled person to become a beneficiary. Most of The Family Trust’s beneficiaries are persons with modest means.

If the request of Zackery’s parents for a court order authorizing the deposit of the settlement funds into The Family Trust is granted, most of the net proceeds from the settlement will be used to purchase an annuity that will guarantee Zackery a revenue stream through his lifetime. (The funds not used to purchase an annuity will be paid directly into the pooled trust.) The Family Trust will receive and manage this revenue stream for Zackery’s benefit.

DPW’s primary disagreement with the use of a pooled trust, rather than a special needs trust, has to do with what occurs upon the death of the beneficiary. DPW contends that I should prohibit the use of a pooled trust because it does not serve the interests of the taxpayers of Pennsylvania. While the use of a pooled trust should be permitted where assets within a beneficiary’s account are minimal, DPW contends that the obligation to repay medical assistance should not be voided where it is likely that significant funds will remain upon the beneficiary’s death.

DPW contends that a pooled trust is a useful device to obtain professional management services for small estates. But a special needs trust best serves the interests of the taxpayers and persons with disabilities where there is sufficient money to afford an independent fiduciary that is concerned only with the beneficiary’s best interests.

There is nothing in the federal or Pennsylvania legislation which supports DPW’s position that any standard other than the best interests of the person with disabilities governs a petition to settle and discontinue a minor’s claims.

The legislation does not place any limits on the amount of money a person may place in a pooled trust. There is nothing in the federal or state legislation which directs me to give priority to taxpayer interests. There is nothing in the legislation that requires me to find that a pooled trust is inappropriate because it does not provide the same protections to the taxpayers as a special needs trust. If the public policy of the Medicaid program is to maximize protection to taxpayers upon the death of a beneficiary, Congress would not have created a vehicle that permits the funds remaining in the beneficiary’s account to be used for the charitable purpose of providing benefits to other persons with disabilities. Furthermore, if Congress and/or the General Assembly had sought to place a cap on the amount of contributions that may be made into a pooled trust or on the amount of money remaining in the beneficiary’s account that may be used for other persons with disabilities, the legislation would have included such a provision.

DPW raises a second objection: The Family Trust might be tempted to spend less money from Zackery Lewis’ account on his behalf than would be spent if the balance, upon his death, did not go to serve the needs of other persons with disabilities whose lives might be significantly improved through modest sums of money spent to supplement their needs. This possibility would not exist if the settlement proceeds were placed in a special needs trust.

DPW’s objection is not case specific; it would apply to the use of a pooled trust whenever any beneficiary’s account is likely to contain funds upon the beneficiary’s death. I am not prepared to assume that a mission-based pooled trust will make decisions that focus on any interests other than the best interests of Zackery Lewis.

I find that the request of the parents of Zackery Lewis, to place the settlement proceeds in The Family Trust, is consistent with Zackery Lewis’ best interests. In determining what type of trust will best serve Zackery Lewis’ interests, they favor a mission-based trust with trained professionals over a traditional trust, the trustee of which may be a trust department of a financial institution. This is a reasonable decision that under these circumstances I will honor.

ORDER

On July 26, 2004, it is ordered that the objections of the Department of Public Welfare to petitioners’ proposal to place settlement proceeds into a pooled trust with The Family Trust are overruled.

      . Previously, I signed a court order approving a settlement in the amount of $2,950,000. DPW does not question the amount of the settlement.

      . The petition provides for most of the net settlement funds to be used to purchase an annuity. The payments from the annuity will be paid to The Family Trust.

      . Under the Social Security Act, an individual is considered to be disabled if he or she “is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment.” 42 U.S.C. §1382c(a)(3)(A).

      . See 42 U.S.C. §1396p(d)(4)(A).

      . The Pooled Trust Act contains the requirements of the Social Security Act for a pooled trust. See 42 U.S.C. §1396p(d)(4)(C).

      .42 U.S.C. §1396p(d)(4)(C)(iv) provides that the trust will pay to the state any funds in the beneficiary’s account that are not retained by the trust equal to the total amount of medical assistance paid on behalf of the beneficiary. As one would anticipate, the trust agreement of The Family Trust retains the funds in a beneficiary’s account upon the beneficiary’s death. The trust agreement provides that upon the death of the beneficiary, all assets in the beneficiary’s account shall be transferred to The Family Trust to be used for providing support for other individuals with disabilities (Petition for leave to settle and discontinue minor’s claims, exhibit G, master trust agreement I, article IX).


text:
    Arnold v. Leamy

      C.P. of Lancaster County,
    no. CI-02-07685.

      William J. Gallagher, for plaintiff.

      J. Michael Flanagan, for defendant.
    July 19, 2004
   CULLEN, J.,

In his motion for summary judgment, defendant, James L. Leamy, seeks judgment in his favor on the ground that the deceased, John Randall Arnold, was engaged in wanton conduct at the time of his death and, therefore, the administratrix of his estate cannot recover damages in her wrongful death and survival action even if defendant was negligent in striking the deceased with his vehicle while the deceased was sitting on the roadway. Based upon a review of the evidence and the applicable law, the court concludes that defendant is not entitled to the relief requested. Accordingly, his motion for summary judgment will be denied.

PROCEDURAL HISTORY

Plaintiff, Beth Arnold, administratrix of the estate of John Randall Arnold, deceased, commenced this wrongful death and survival action on September 5, 2002. On December 3, 2002, she filed her complaint alleging that defendant was careless, reckless and negligent when he struck the deceased, a pedestrian, with his vehicle and killed him.

Defendant filed an answer and new matter on December 18, 2002, to which plaintiff responded. The parties then engaged in discovery.

On February 24, 2004, defendant filed his motion for summary judgment, together with supporting documentation and a brief. Plaintiff filed an answer to the motion and a brief on March 22, 2004. The matter was thereafter assigned to the court for disposition.

FACTUAL BACKGROUND

At approximately 5 a.m. on the morning of September 16,2000, Ervin Martin had just turned from his driveway into the westbound lane of Laurel Road in Caernarvon Township, Lancaster County, Pennsylvania. (Deposition of Ervin Martin, July 28,2003, pp. 5, 8.) He saw the deceased, who appeared to be drunk, in the middle of Laurel Road. Id. at 5-6. Unsure what to do, Mr. Martin stopped his vehicle. Id.

Although his testimony is not completely clear, it appears that Mr. Martin first saw the deceased staggering on the road. Id. at 9-11. Mr. Martin observed the deceased trying to get up off the ground without success. Id. at 6, 10, 15. Immediately before being struck, the deceased was sitting up in the middle of the road “a little bit” in defendant’s lane of travel facing on-coming traffic. Id. at 6, 11-12, 16. Mr. Martin saw the headlights of defendant’s approaching vehicle and estimated it traveled about 200 yards before striking the deceased. Id. at 11.

Defendant was traveling east on Laurel Road. (Deposition of James S. Leamy, May 7, 2003, p. 10.) He saw Mr. Martin’s vehicle stopped on the road. Id. at 14-15. He did not see the deceased sitting in the road until he was less than 20 feet from him. Id. at 15,20. Defendant’s vehicle struck the deceased, killing him. (Deposition of Ervin Martin, July 28, 2003, pp. 6, 16); (deposition of Trooper James Lynam, July 28, 2003, pp. 14, 20.)

The postmortem toxicology report indicated that the deceased had ingested cocaine and that he had a blood alcohol content of .16 percent. (Motion for summary judgment, ¶6; answer, ¶6.) The presence of alcohol and cocaine would have had a profound effect on the deceased’s judgment, inhibitions and reaction times. (Motion for summary judgment, ¶7; answer, ¶7.)

There appears to be no dispute that approximately two hours before his death, the deceased was involved in an unusual incident on the Pennsylvania Turnpike. (Motion for summary judgment, ¶8; answer, ¶8.) After colliding with the medial barrier and losing a driver’s side tire, the deceased abandoned the 1988 Oldsmobile he was driving. Id. Prior to abandoning his vehicle, the deceased had traveled eastbound in the westbound lane of the turnpike for some distance. Id.

DISCUSSION

Pursuant to Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, after the pleadings are closed any party may move for summary judgment where (1) there is no genuine issue of material fact as to a necessary element of the cause of action or defense which would be established by additional discovery or expert report, or (2) after completion of discovery, 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 the jury. Pa.R.C.P. 1035.2.

“A proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury.” McCarthy v. Dan Lepore & Sons Co. Inc., 724 A.2d 938, 940 (Pa. Super. 1998). (citation omitted). “If the nonmoving party fails to come forward with sufficient evidence to establish or contest a material issue to the case, the moving party is entitled to judgment as a matter of law.” Id. (citing Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996)).

The court must view the record “in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992). (citation omitted)

The thrust of defendant’s argument is that plaintiff is barred from recovery because the deceased was engaged in suicidal or wanton conduct at the time of his death. He cites the decision of the Superior Court in Lewis v. Miller, 374 Pa. Super. 515, 543 A.2d 590 (1988), in support of his position.

In Lewis, the administrator of the estate of a driver killed in a drag race sued the other racer. Id. In addition to racing on the highway, both drivers were under the influence of alcohol. Id. At the conclusion of the plaintiff’s case, the trial court entered a compulsory non-suit. Id. The plaintiff took an appeal to the Superior Court. Id.

On appeal, the Superior Court affirmed, concurring with the trial court that both participants had been engaged in wanton conduct. Under Pennsylvania law,

“Wanton conduct has been defined as ‘something different from negligence, however gross, different not merely in degree but in kind and evincing a different state of mind on the part of the tort-feasor.’. . . ‘Negligence consists of inattention or inadvertence, whereas wantonness exists where the danger to the plaintiff, though realized, is so recklessly disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.’. . . Wanton misconduct

“means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences.” Id. at 519-20, 543 A.2d at 592.

Under such circumstances, the plaintiff was precluded from recovery. The Superior Court found no merit to the proposition that the jury should have been permitted to weigh the degree of wantonness of each party under the Comparative Negligence Act. Id.

In this case, the parties agree that the Comparative Negligence Act cannot serve to provide a means of recovery if the deceased’s actions amount to willful or wanton misconduct. Where willful or wanton misconduct is involved, comparative negligence should not be applied since such conduct on the part of one party may not be compared with the negligence of another without ignoring the clear distinction between these different types of conduct. Krivijanski v. Union Railroad Company, 357 Pa. Super. 196, 515 A.2d 933 (1986).

Wanton misconduct has already been defined. It is not, however, interchangeable with willful misconduct. Evans v. Philadelphia Transportation Company, 418 Pa. 567, 212 A.2d 440 (1965). Willful misconduct means that the actor desired to bring about the result that followed, or at least that he was aware that it was substantially certain to ensue. Id.

Intoxication does not preclude a determination that a party engaged in wanton conduct. Lewis v. Miller, 374 Pa. Super. 515, 543 A.2d 590 (1988).

Based upon the current record, the court cannot say with the requisite certainty that as a matter of law the deceased was engaged in wanton conduct at the time of his death. The circumstances in Lewis are readily distinguishable.

In Lewis, the deceased, although legally intoxicated, was able to make a conscious decision to engage in a drag race with his companion and to maintain control of his automobile at 75 miles per hour until the other driver moved toward him. This was sufficient to allow the Superior Court to conclude that the nature of the conduct in which he engaged, and the risk entailed, was so obvious that the deceased must necessarily have been aware of it, yet nevertheless persisted.

Mr. Arnold, on the other hand, lacked basic physical coordination. He was staggering and unable to get up. He was sitting in the middle of the road, slightly in defendant’s lane of travel, at the time he was struck. His conduct was certainly negligent, but on the evidence presented it cannot be said to be wanton.

His actions on the Pennsylvania Turnpike approximately two hours earlier do not mandate a different conclusion. The evidence indicates that the deceased was traveling eastbound in the westbound lane of the turnpike, struck the medial barrier losing a tire and thereafter abandoned the vehicle. Again, this is clearly sufficient to establish negligence had anyone been injured by his conduct. Whether the deceased was under the influence of alcohol and/or cocaine at the time of these events cannot be determined from the record. In the absence of a more compelling evidentiary connection, the deceased’s actions two hours earlier do not justify a finding that his conduct at the time of his death was wanton.

Defendant in his argument describes the deceased’s conduct as suicidal. The court will treat this as a claim that the deceased’s conduct was willful. While certain facts may lend themselves to this interpretation, the evidence viewed in the light most favorable to plaintiff does not warrant this conclusion. Defendant’s characterization is based upon his impression of the deceased’s actions. There is no direct evidence of the deceased’s state of mind or any testimony from a neutral witness which would support the conclusion that the deceased was suicidal. The evidence viewed in the light most favorable to the nonmoving party indicates only that the deceased was intoxicated to the extent that he lacked physical coordination and was unable to get up. The claim that the deceased’s conduct was suicidal or willful lacks sufficient evidentiary basis to support a motion for summary judgment.

Based upon the foregoing analysis, the court enters the following:

ORDER

And now, July 19, 2004, the motion of defendant, James L. Leamy, for summary judgment is denied.

      . Defendant’s answer indicates that his true name is James S. Leamy. (Answer, ¶2.) Since the parties have not sought to amend the caption, the court will refer to defendant using the name by which he is identified in the complaint.

      . The deceased’s blood alcohol level was .169 percent while that of the other driver was .17 percent. Both vehicles were estimated to be traveling at 75 miles per hour in a 45 mile-per-hour zone at the time of the fatal crash.

      . 42 Pa.C.S. §7102(a).