PITTSBURGH LEGAL JOURNAL

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1 VOL. 156 NO. 17 Supplement to The Lawyers Journal august 15, 2008 PITTSBURGH LEGAL JOURNAL OPINIONS allegheny county court of common pleas Voicestream Pittsburgh L.P. by Voicestream Pittsburgh General Partner, Inc., d/b/a T-Mobile v. Zoning Hearing Board of the Municipality of Bethel Park, Pennsylvania and Municipality of Bethel Park, James, J....Page 293 Zoning Natural Expansion In re: Carolyn A. Sparks, Lucchino, J....Page 293 Guardianship Sale of Real Property Best Interest of Estate In Re: Ignatius Streshenkoff, Lucchino, J....Page 294 Guardianship Current Condition of Alleged Incapacitated Person Dawn Burns v. GJ Sales Co., Friedman, J....Page 295 Breach of Contract Jamil Wyatt v. Keith Bullard, Keith Bullard s Auto Liquidation Center, Inc., and USAA Federal Savings Bank, O Reilly, J....Page 297 Breach of Warranty Rescission Attorneys Fees Unfair Trade Practice and Consumer Protection Law Peter W. Thompson v. Kenneth M. Ross, Friedman, J....Page 298 Defamation Arbitration Rule 13200(a) of the NASD Code of Arbitration Procedures Conduct Arising out of Business Activities Lynn A. Flaherty and James Flaherty v. William Bell, M.D., St. Clair Memorial Hospital, et al., Manning, J....Page 299 Jury Charge Contributory Negligence Physician Assistant Reporting Requirements Robert Friedman v. Hershey Foods Corporation and Giant Eagle, Inc., Friedman, J....Page 303 Motion for Summary Judgment Alternative Arguments Laura Catherine Gorecki v. Polly Elkin-Walker v. Terry Blair, Friedman, J....Page 304 Dog Bite Prior Knowledge Summary Judgment Remit Corporation v. Edith Potter, Friedman, J....Page 305 Credit Card Debt Transfer of Debt Cynthia L. Schofield v. Wal-Mart Stores, Inc., Lasaun Sandy Beeman, Yolanda Godson & Artishae Martin, O Reilly, J....Page 305 Motion to Strike Default Judgment Motion to Open Default Judgment Rule 206.5(C) Commonwealth of Pennsylvania v. Gerald Watkins, Manning, J....Page 306 PCRA Petition Confession Ineffective Assistance of Counsel Commonwealth of Pennsylvania v. Michael Purnell Evans, Cashman, J....Page 315 Post-Conviction Relief Act Untimely Filing Commonwealth of Pennsylvania v. Andre Lamar Yates, McDaniel, A.J.,...Page 317 Post Conviction Relief Act Ineffective Assistance of Counsel Layering of Claims Excited Utterance Exception to Hearsay Rule Pa. R. Evid. 803(2) Commonwealth of Pennsylvania v. Leabert George Grant, Durkin, J....Page 321 Post Conviction Relief Act Ineffective Assistance of Counsel Trial Counsel s Failure to Comply with CLE Requirements Failure to Secure Interpreter Waiver of Jury Trial Failure to Call Witness jury verdicts Janice Lux and John Lux, her husband v. Leo P. Bidula, M.D. and Arthritis and Rheumatic Disease Associates, Scanlon, J....Page 323 Medical Malpractice John C. Nickle, Jr. and Evelyn Nickle, husband and wife v. Port Authority of Allegheny County, McCarthy, J....Page 323 Public Transportation Helen Pampena v. James Beard & Margaret Beard, his wife, O Reilly, J....Page 323 Slip and Fall Rosemarie M. Pugliese, Individually and as Administratrix of the Estate of Louis S. Pugliese, Deceased; and Tara Pugliese v. Matthew Neubauer, O Brien, J....Page 323 Motor Vehicle Pedestrian Richard Scampone, Extr. of the Estate of Madeline Scampone v. Highland Park Care Center, LLC d/b/a Highland Park Care Center, Grane Healthcare Company, Grane Associates, L.P., Trebro, Inc., Colville, J....Page 324 Negligence Edward Simon t/d/b/a Edward Simon & Company v. Manfred, Diller & Lloyd, O Reilly, J....Page 324 Contract Dennis J. Spyra, Esq. and Charney R. Sypra, Esq. v. West Penn Power Company d/b/a Allegheny Power, and Townsend Tree Service Co., Inc., O Brien, J....Page 324 Negligence Alan L. Tuttle and Corey Lea Simpson-Tuttle v. Universal Forest Productions, Inc., Folino, J....Page 324 Negligence Zoe Malinoski, a minor, by and through her parent and natural guardian, Sandra Malinoski v. Sarah Fairbanks, Lutty, J....Page 325 Motor Vehicle Pedestrian Thomas D. Arbogast v. Kenneth F. Gregory; John Doe (Family member of Kenneth F. Gregory; and Jane Doe (Family member of Kenneth F. Gregory), Scanlon, J....Page 325 Motor Vehicle Motorcycle Margaret E. McHenry and Diane M. Atkinson v. Michael Vargas and Deborah Vargas, Colville, J....Page 325 Negligence/Contract Kameela Roach, an individual v. Mark M. Pikur, DDS/DMD, a licensed professional; Spencer T. King, DDS/DMD, a licensed professional; Spencer T. King, DDS t/d/b/a Spencer T. King & Associates, Spencer T. King & Associates, Inc. and/or Dr. King & Assoc., O Reilly, J....Page 325 Dental Malpractice Sally Gould, in her own behalf and as Executrix of the Estate of Donald Gould, deceased v. Liberty Lighting Products, Inc. and Joshua Spiegel, an individual, Scanlon, J....Page 326 Motor Vehicle Todd Moody v. St. Margaret s Hospital, Warren Ostlund, M.D. and Mohammad Ilyas, M.D., Lutty, J....Page 326 Medical Malpractice Cancer Shaila Cabbagestalk v. William Taylor, O Reilly, J....Page 326 Motor Vehicle Pedestrian Angelo DeCiantis v. Donna Caroscilli, Colville, J....Page 326 Motor Vehicle Rear-End Collision

2 PLJ The Pittsburgh Legal Journal is a supplement to the Lawyers Journal, which is published fortnightly by the Allegheny County Bar Association 400 Koppers Building Pittsburgh, Pennsylvania (412) Allegheny County Bar Association 2008 Circulation 6,765 PLJ EDITORIAL STAFF Thomas A. Berret...Editor-in-Chief and Chairman Jennifer A. Pulice...Editor Joanna Taylor...Assistant Editor David A. Blaner...Supervising Editor Lynn E. MacBeth...Opinion Editor Theresa Berret...Jury Verdict Editor Sharon A. Antill...Typesetter/Layout Opinion Editorial VOLUNTEERS Mary Ann C. Acton Mary Kay McDonald Mark R. Alberts Daniel McIntyre Kenneth M. Argentieri Laura A. Meaden William Barker Linda A. Michler Shannon F. Barkley Ronald D. Morelli Joseph H. Bucci Rhoda Shear Neft Meg L. Burkardt Peter C.N. Papadakos Norma M. Caquatto Tracy A. Phillips Robert A. Crisanti Diane Barr Quinlin William R. Friedman Jeffrey Alan Ramaley Kristen M. Iagnemma Carol L. Rosen Margaret P. Joy Amy R. Schrempf Sandra Lewis Kitman Joan O Connor Shoemaker Patricia Lindauer Carol Sikov-Gross Ingrid M. Lundberg family law opinions committee Reid B. Roberts, Chair Mark Alberts Christine Gale Mark Greenblatt Margaret P. Joy Patricia G. Miller Sally R. Miller Sophia P. Paul David S. Pollock Hilary A. Spatz Mike Steger William L. Steiner jury verdicts volunteers Wendy L. Bartsch-Cieslak Mark Greenblatt Beth Fischman Janet K. Meub Robert C. Fratto Barbara Atkin Ramsey OPINION SELECTION POLICY Opinions selected for publication are based upon precedential value, clarification of the law, procedure in Allegheny County courtrooms and elucidation of points of law. Opinions are selected by the Opinion Editor and/or committees in a specific practice section. An opinion may also be published upon the specific request of a judge. Opinions deemed appropriate for publication are not disqualified because of the identity, profession or community status of the litigant. The guide to publication is the helpfulness of the opinion to practitioners in the particular area of law. All opinions submitted to the PLJ are reviewed for publication and will only be disqualified or altered by Order of Court. OPINIONS The Pittsburgh Legal Journal provides the ACBA members with timely, precedent-setting, full text opinions, from various divisions of the Court of Common Pleas. Each opinion, which is published in this section, begins with a brief description or a head-note of the opinion that follows. These opinions can be viewed in a searchable format on the ACBA website, ALLEGHENY JURY VERDICT REPORTER The Pittsburgh Legal Journal provides the ACBA members with a quarterly report of jury verdicts from the Civil Division of the Court of Common Pleas of Allegheny County. The verdicts which appear in the Pittsburgh Legal Journal, a supplement of the Lawyers Journal, under the heading Allegheny Jury Verdict Reporter are provided by court staff from the assignment room. Each jury verdict is then assigned for review of the pleadings and preparation of a brief summary of the case and identification of the parties, counsel, and witnesses. No attempt is made to select, choose, emphasize, highlight, or categorize the results of lawsuits tried to verdict, either by plaintiff, defendant, result, or any other category. The purpose of this project is to report all results tried by jury to verdict. CAPSULE SUMMARIES The Pittsburgh Legal Journal provides the ACBA members with precedent-setting, Capsule Summaries or a brief description of opinions from the Family Division of the Court of Common Pleas of Allegheny County. BINDERS The Allegheny County Bar Association is taking orders for 3-ring binders for easy storage of PLJ opinions and jury verdicts. Call Peggy for details, (412)

3 August 15, 2008 Supplement to The Lawyers Journal page 293 Voicestream Pittsburgh L.P. by Voicestream Pittsburgh General Partner, Inc., d/b/a T-Mobile v. Zoning Hearing Board of the Municipality of Bethel Park, Pa. and Municipality of Bethel Park Zoning Natural Expansion Placing additional equipment, consisting of panel antenna and a concrete pad with four small cabinets, that does not change the size or use of the existing nonconforming area, is a natural expansion of the legal pre-existing nonconforming use. (Amy R. Schrempf) Alice B. Mitinger for Appellant. Charles A. Knoll for Appellee Zoning Hearing Board of the Municipality of Bethel Park. Irving S. Firman for Intervenor Municipality of Bethel Park. No. SA In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. OPINION James, J., February 28, 2008 This appeal arises from the decision of the Zoning Hearing Board of Bethel Park, Pennsylvania (hereinafter Board ) denying the application for approval to place equipment above-ground at an existing communication tower compound located at 4599 Library Road in an M (Manufacturing/Light Industrial District) in Bethel Park. Voicestream Pittsburgh, L.P. by Voicestream Pittsburgh General Partner, Inc. d/b/a T-Mobile (hereinafter Appellant ) seeks to place its antennas on a 200-feet communications tower that was constructed in Bethel Park in The tower is surrounded by a 56-feet by 69-feet fenced compound and has been used for communications equipment since the tower s construction in On November 8, 2006, the Appellant filed an application requesting a variance from the underground equipment requirement of Section (6) and in the alternative, appealed the Zoning Officer s denial of a building permit, asserting that the proposed use is a limited expansion of the existing nonconforming use of the compound area. The Board conducted a hearing on the Appellant s application on January 2, At the Board s February 5, 2007 hearing, Appellant s application was denied. The Board s written decision, including findings and a discussion, was issued on June 21, Before this Court is the Appellant s appeal. When the trial court takes no additional evidence, the scope of review is limited to determining whether the Board committed an error of law, abused its discretion or made findings not supported by substantial evidence. Mars Area Residents v. Zoning Hearing Board, 529 A.2d 1198, 1199 (Pa.Cmwlth. 1987). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association. v. Zoning Hearing Board of Adjustment, 462 A.2d 637 (Pa. 1983). The Appellant argues in its brief that Pennsylvania courts have long recognized the natural expansion doctrine, under which a nonconforming use is permitted to expand as a matter of right. See e.g., Chartiers Twp. v. William H. Martin. Inc., 542 A.2d 985, 988 (Pa. 1988) (noting that the Pennsylvania Supreme Court first enunciated the natural expansion doctrine in 1927); Limley v. Zoning Hearing Bd. Of Port Vue Borough, 625 A.2d 54, 56 (Pa. 1993); Silver v. Zoning Bd. Of Adjustment., 255 A.2d 506, 507 (Pa. 1969) (Court held that the right of natural expansion is a constitutional right); Appeal of Associated Contractors, Inc., 138 A.2d 99 (Pa. 1958); Humphreys v. Stuart Realty Corp., 73 A.2d 407 (Pa. 1950); Appeal of Gemstar/Ski Bros., 574 A.2d 1201 (Pa.Cmwlth. 1990). Under Pennsylvania law, the natural expansion of a nonconforming use is permitted as of right and an increased intensity of use of a property does not require a variance. Chartiers, 542 A.2d at 989. A nonconforming use cannot be limited to the precise magnitude that existed at the time the use became nonconforming. As the Court held, once it has been determined that a nonconforming use is in existence, an overly technical assessment of that use cannot be utilized to stunt its natural development and growth. Id. At 988. The record reflects that the Appellant would place up to 24 panel antennas on the existing tower at a height of 135- feet on the 200-feet tower. Appellant would also lease a 10- feet by 20-feet (200 square feet) area within the 3864 square feet compound, where it would install an 8-feet by 16-feet (128 square feet) concrete pad. Four small cabinets, for the transmitting and receiving equipment necessary for the antennas function, would be placed on the concrete pad. The Appellant s equipment pad would be similar to other equipment pads and the Appellant s equipment would be generally consistent with the other equipment in the compound. The addition of the Appellant s equipment in the compound would not change the size or the use of the compound which is enclosed by fencing and contains equipment of other wireless communications providers including Sprint, Cingular, Sprint, Nextel and Verizon. This Court finds that the Appellant s proposed use is the expansion of an existing nonconforming use and therefore is permitted as of right. Placing additional aboveground structures within the existing nonconforming area is a natural expansion of the legal pre-existing nonconforming use. Based upon the foregoing Opinion, the decision of the Zoning Hearing Board of the Municipality of Bethel Park is reversed. ORDER OF COURT AND NOW, this 28th day of February, 2008, it is hereby ORDERED, ADJUDGED and DECREED that the decision of the Zoning Hearing Board of the Municipality of Bethel Park is reversed. BY THE COURT: /s/james, J. In re: Carolyn A. Sparks Guardianship Sale of Real Property Best Interest of Estate Where the Estate may need proceeds of sale from real estate and costs to retain and rehabilitate the real estate range from $70,000 to $100,000 plus the annual costs of maintenance, it is reasonable and practical to sell the real estate pursuant to the agreement of sale. (Amy R. Schrempf) Thomas J. Dempsey, Jr. for Elizabeth S. Sparks. Sam Braver for Duane W. Swager, II. Deborah A. Liotus for Ursuline Senior Services. Karen Timko for Carolyn A. Sparks. Christopher F. Farrell for Smithfield Trust Company. No of In the Court of Common Pleas of Allegheny County, Pennsylvania, Orphans Court Division. OPINION Lucchino, J., February 26, 2008 On October 26, 2007, the Court held a hearing on the Petition for Private Sale of Real

4 page 294 Supplement to The Lawyers Journal volume 156 no. 17 Estate brought by the Co-Guardians of the Incapacitated. Person s Estate ( the Estate ), Smithfield Trust Company and Duane W. Swager, II (the Petitioners ). The Court approved the sale and Elizabeth S. Sparks, a Minor (the Respondent ) appealed. Respondent is the daughter of Carolyn A. Sparks (the Incapacitated Person ) and has only an expectancy, but no legal interest, in the real estate involved. Prior to her illness, the Incapacitated Person s primary residence was located in the Borough of Sewickley, Allegheny County, Pennsylvania. The property of interest in this petition (the Conneaut Property ) is located on Conneaut Lake, in Crawford County, approximately 85 miles north of Sewickley. The Conneaut Property contains a onestory cottage that was used mainly during the summer months as a vacation home for the Incapacitated Person and her family. The Court finds that it is in the best interest of the Estate that the Conneaut Property be sold as soon as possible for a number of reasons. The Conneaut Property has not been used for at least two years and evidence of serious deterioration was presented, including black mold inside the cottage, mold on the majority of the roofing shingles, rotting window frames and similar maladies caused by disuse. These conditions continue to deteriorate. The expenses to the Estate for taxes, insurance and maintenance should cease at the earliest possible time to stop draining the Incapacitated Person s assets. Based upon the fact that the Conneaut Property has been vacant for a long period, there is a question as to whether the current insurance will cover certain losses. An agreement of sale from a willing buyer has been executed which will provide additional funds to the Estate upon the Conneaut Property s closing. The Petitioners, the Co- Guardians of the Estate who are independent and credible, believe it is in the best interest of the Estate that the Conneaut Property s closing be held at the soonest possible time so as not to lose this sale. If the current buyer withdraws because of the inability of the Petitioners to close on Conneaut Property, there will be uncertainty as to when and at what price the Conneaut Property could later be sold. Respondent made the argument that because the value of the Estate is large, the Conneaut Property should be retained and rehabilitated. That argument fails for two reasons: (1) the Estate could need the assets provided by the sale of the Conneaut Property to care for the Incapacitated Person. It is not possible to determine how long the Incapacitated Person will live. With ongoing advances in medicine, it is possible that she will live a long time. Treatment costs inevitably rise, thus making her care over time increasingly more expensive. (2) The cost to retain and rehabilitate the Conneaut Property could range between $70,000 and $100,000, plus the annual cost of maintenance, estimated at $10,000. From a financial point of view, it makes no sense to retain the Conneaut Property. Cynthia C. Thomas, in addition to being Respondent s Co- Guardian ( Respondent s Co-Guardian ), is a licensed occupational therapist and owns Associated Occupational Therapists, Inc., which serves adults and children who have physical and mental disabilities. Respondent s Co-Guardian was unable to provide convincing evidence to the Court that the Conneaut Property holds such significant clinical therapeutic value to the Incapacitated Person as to warrant its retention by the Estate. She admitted that the Incapacitated Person could not realistically compare the happiness of watching a Pittsburgh Steelers game at her house with a visit to the Conneaut Property. In addition, there was unrebutted testimony from the Incapacitated Person s Guardian of the Person, Ursuline Senior Services through its representative Carole C. Cupp, that deemed the therapeutic benefit to the Incapacitated Person to be the same whether she was at the Conneaut Property or just visiting friends at Conneaut Lake. In fact, no one had taken the Incapacitated Person to visit the Conneaut Property for at least two years. Respondent, a Minor, understandably has a warm emotional attachment to the Conneaut Property based upon her childhood experiences at the Conneaut Property with her family and the Court understands this is an extremely difficult situation for anyone to be in, especially a young person. However, based upon the credible evidence presented, Petitioners have convinced the Court that taking advantage of the existing opportunity to sell the Conneaut Property is a reasonable and practical transaction that will benefit the Incapacitated Person s Estate and it was so Ordered. Dated: February 26, 2008 In Re: Ignatius Streshenkoff Guardianship Current Condition of Alleged Incapacitated Person Focus for incapacity determination is on current medical, emotional and physical condition, not history of mental and physical disability from years prior to petition. (Amy R. Schrempf) Thomas J. Dempsey, Jr. for Leslie Glikis. Richard R. Tarantine and Barbara Payne for Ignatius Streshenkoff. No of In the Court of Common Pleas of Allegheny County, Pennsylvania, Orphans Court Division. OPINION Lucchino, J., March 31, 2008 On September 27, 2007, a hearing was held to determine whether this Court should appoint a guardian of the person and estate for Ignatius Streshenkoff, an alleged incapacitated person. After testimony was concluded, this Court found that no evidence of incapacity had been presented and denied the petition. Petitioner appealed and this Court now files this Opinion. 1 Leslie Glikis ( Petitioner ), a neighbor of the alleged incapacitated person, Ignatius Streshenkoff ( Respondent ), filed a Petition to have the Respondent declared incapacitated and a guardian appointed for his person and estate. Petitioner is not a relative of Respondent. Petitioner complains this Court abused its discretion by failing to give proper consideration and weight to Petitioner Glikis s testimony. Petitioner offered no testimony as to Respondent s current medical condition as averred in her Petition. Most of her testimony focused on the period in 2002 and 2003 when she allegedly helped Respondent with his bills. She testified that Respondent missed his grandniece when she left in September of 2002, and Respondent started drinking and his bills went unpaid. Petitioner allegedly helped him straighten out his finances. This Court stated that it was willing to hear more testimony about Respondent s alleged impaired memory, alcohol use and impaired judgment as long as it was contemporary with the time we are dealing with now, i.e., She signed a verification of her Petition in 2007 stating the averments to be true in 2007, but her testimony related to events from past years. Petitioner testified her last contact with Respondent was over two years ago, in July of 2005, when she was being accused of stealing from him. Petitioner did not offer any additional testimony.

5 august 15, 2008 Supplement to The Lawyers Journal page 295 This Court asked Petitioner s counsel if he had anyone who was going to testify to Respondent s current condition beyond July Counsel said he did, yet never called anyone to testify in that regard. This Court s focus is on Respondent s current medical, emotional and physical condition and whether there is enough evidence to support a finding that he is incapacitated. This Court recognizes it is possible that Respondent s past condition could have a bearing on a current condition, but this Court needs to make a judgment based upon Respondent s current condition. Testimony regarding the Respondent s current mental, emotional and physical condition is required. This Court s responsibility is to ensure that evidence of incapacity is presented that satisfies the guardianship statute 20 Pa. C.S.A. 5501, et seq., before issuing a guardianship order. This Court requested that Petitioner present testimony that met the statutory requirements to determine incapacity. Petitioner complains that this Court prohibited testimony of Respondent s history of mental and physical debility. This is not accurate. The record will show that this Court did hear some testimony of a historical nature regarding Respondent, but advised Petitioner that testimony of Respondent s current condition was required to determine incapacity. None was offered. Petitioner s counsel called Katherine Oswalt and Kathleen Oswalt to testify as witnesses in his case. Katherine is Respondent s grandniece and Kathleen s daughter and they currently reside with Respondent. Petitioner s counsel asked if they were involved in a matter in a magistrate s court. Respondent s counsel objected to these questions as to the relevance to Respondent s mental, emotional and physical condition related to his incapacity. Neither of the Oswalts were asking to be made guardian of Respondent. This Court stated that it would not allow inquiry into the Oswalts alleged activities pending before the magistrate unless the alleged activity was related to Respondent. Petitioner s counsel had no other questions of the witnesses, leading this Court to conclude that the Oswalts alleged interaction with magistrate s court, if any, is unrelated to Respondent. At no time did Petitioner s counsel ask either of the Oswalts, the people who actually live with Respondent day in and day out, any questions about Respondent s current mental and/or physical condition. Petitioner complains that this Court prohibited testimony from additional available witnesses. The record will show that Petitioner had the opportunity to present witnesses in addition to the three he called. Petitioner testified that there were over thirty (30) heirs in Respondent s Will, yet her counsel called only two of those people as witnesses, the Oswalts. After their testimony was concluded, Petitioner s counsel stated he had no other witnesses. Petitioner s counsel admitted he had no testimony to present in compliance with 20 Pa. C.S.A to prove that Respondent was incapacitated. Nowhere in the record does it show this Court refused to hear any witness called by Petitioner. A person shall not be subject to this Court appointing a guardian and taking, control of his affairs without adequate testimony that meets the statutory requirements. Adequate testimony was not presented to this Court and therefore the Petition for Guardianship was denied. Filed March On September 27, 2007, this Court filed an opinion regarding its refusal to subvert Pa. R.C.P for purposes of forcing an alleged incapacitated person to submit to an independent medical evaluation. That refusal to twist the meaning of 4010 is the basis for paragraphs 11 and 12 wherein Petitioner complains this Court abused its discretion and/or committed an error of law. Likewise, this Court will not subvert 20 Pa. C.S.A. 5511(d), Petitioner complains of in paragraph 5. Section 5511(d) provides that a Court can of its own motion order an independent medical evaluation and currently this Court has no reason to issue such an order. The rest of section 5511(d) is clearly inapplicable in this case, as it provides that only the alleged incapacitated person can petition the court for an independent evaluation and Respondent has not done so. Dawn Burns v. GJ Sales Co. Breach of Contract Plaintiff, a sales representative under a written contract with defendant, did not breach her contract so as to be precluded from recovery of disputed commissions for the following reasons: 1. As an independent contractor under a contract that did not preclude her from working with non-competitors, plaintiff s sales work for another company did not involve product lines that were competitive with or similar to those of defendant; 2. Plaintiff did not breach her contractual obligation to provide defendant with a list of outstanding appointments; and 3. Defendant waived the contract s requirement for 30 days notice of termination. (Ronald D. Morelli) Todd T. Zwikl for Plaintiff. Douglas C. Hart for Defendant. No. GD In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. DECISION Friedman, J., April 11, 2008 This Decision is filed pursuant to Pa. R.C.P See also Pa. R.C.P (c)(2). INTRODUCTION The captioned matter involves a dispute over commissions Plaintiff claims she is owed for work she did for Defendant GJ Sales Co. ( Defendant ) during the years 2003 and Plaintiff was hired as an independent contractor pursuant to a written agreement ( Contract ) with Defendant. The claims against two individual Defendants, Mrs. Gee Izworski, Defendant s sole shareholder, and Mr. Gene Izworski, her husband and employee of Defendant, were voluntarily dismissed 1 prior to the trial, which was before the undersigned sitting without a jury. Plaintiff has filed two counts against the Defendant, one for breach of contract and one for unjust enrichment. Defendant says unjust enrichment is not applicable here and also denies owing Plaintiff anything under the Contract, saying her breach of the terms of the Contract is ample justification for its refusal to pay her the commissions she would otherwise have been entitled to. Defendant has also filed a counterclaim against the Plaintiff based on her alleged failure to return product samples, the value of which is said to exceed the amount of those commissions.

6 page 296 Supplement to The Lawyers Journal volume 156 no. 17 The Court concludes that the relationship between them is governed by the written Contract and agrees with Defendant that the count for unjust enrichment must be dismissed, without further discussion. DISCUSSION Defendant asserts four different breaches by Plaintiff, (1) working for a competitor of Defendant, (2) failing to give Defendant a list of upcoming appointments, (3) failing to give 30 days notice, and (4) failing to return samples. The Court concludes that the credible evidence shows that Plaintiff did not breach the Contract in any material way. 1. Plaintiff did not work for a competitor of Defendant s. Plaintiff did not breach Section E of the Contract (Plaintiff s Ex. A) when she did some work for another company, Frank Meyers Associates ( FMA ) while she was acting as a sales representative for Defendant. 2 It is undisputed that Plaintiff was an independent contractor for Defendant, and the Court finds that, under the Contract, she was not barred from working for others during the same time period so long as she did not work for competitors of Defendant. Whether or not there was in fact a breach depends on whether or not FMA was a competitor of Defendant within the meaning of the Contract. Plaintiff believed at the time that it was not. The Court finds that her belief was sincerely held at the time. The Court finds that Plaintiff did not sell any product lines for FMA that were competitive with or similar to the product lines Defendant sold. The Court also finds that Defendant did not provide credible evidence sufficient to rebut the Plaintiff s evidence that the lines of gifts she sold for FMA did not compete with the lines of gifts she was selling for Defendant. The Court does not credit the testimony of Mrs. Izworski that Defendant s competition with FMA was for shelf space, not for similar product lines, and that the Contract therefore should be interpreted accordingly. To the extent the meaning of the phrase in competition with GJ is ambiguous, it must be interpreted against Defendant, which drafted it. Plaintiff s understanding that the relevant competition was product lines is credible and not at all unreasonable, especially since she was designated an independent contractor and not an employee by Defendant. An employee might have a duty not to work for anyone else, whether or not a competitor, during the course of his or her employment. An independent contractor, such as Plaintiff, would have no such duty. It is also noted that even Mrs. Izworski does not contend that she explained her theory of competition being related to shelf space to Plaintiff when she allegedly went over the Contract in detail with her. The Court concludes that Plaintiff did not breach the Contract when she did work for FMA, so this is not a valid excuse for Defendant to refuse to pay the commission she was due under the Contract. 2.There was no breach of the provision related to appointments. The next issue is whether Plaintiff breached the Contract by failing to give Defendant a list of her outstanding appointments within three days, as required by Section F. The evidence on this issue is scant. At trial, Plaintiff credibly testified that she had no significant number of appointments, if she had any at all, while Mr. and Mrs. Izworski tried to say she must have had appointments and deliberately did not turn them over to Defendant. The Izworskis also tried to assert that the Contract required Plaintiff to give them her personal appointment book. It does not, so Plaintiff s failure to give it to them is not violative of the Contract. However, there is no indication that at the time the Izworskis were at all concerned that appointments had not been given, assuming, arguendo, that this was the case. There was no evidence adduced that Defendant received any feedback from a customer complaining that an appointment was not kept, nor was there evidence of any lost sales to customers who might normally have placed an order. The Court believes the supposed list of appointments was a non-issue at the time and that Defendant raised it only after deciding it would keep Plaintiff s commissions. In summary, the credible evidence does not support the contention that Plaintiff failed to give Defendant a record of any future appointments booked. 3. There was no breach of the notice provision. Another issue is whether Plaintiff should have given Defendant 30 days notice of her intention to terminate the Contract. The credible evidence shows that Defendant waived this requirement and deemed the termination effective immediately. Plaintiff did not breach this portion of the Contract. 4. There is no merit to Defendant s Counterclaim as there was no breach of the provision requiring return of samples. The last issue related to breach is whether or not Defendant s counterclaim for the value of unreturned samples has merit. The Court concludes it does not. The Court believes Plaintiff s testimony that she returned all the samples that had ever been in her possession except for some plush items that were badly damaged by a flood in Plaintiff s basement where the items had been stored. Some samples had been returned prior to the termination of the Contract and the others, except for the damaged plush, were promptly returned after. 5. Calculation of damages due Plaintiff. Having concluded that Plaintiff did not breach the Contract and that she is entitled to the unpaid commissions due under the Contract, the Court must next decide what that amount would be. Plaintiff s claim for something approaching $11,000 is based on the assumption that Defendant was paid in full for every order Plaintiff placed. The virtually undisputed evidence, however, is that a certain number of customers would cancel all or parts of orders or fail to pay for them and that it was also not unusual for a manufacturer to ship only part of the entire order placed by Plaintiff. Plaintiff does not contend that her commission was ever calculated on the gross amount of orders placed. She admits she was paid based on actual payments Defendants received from the various manufacturers represented. Mr. Izworski testified that Defendant had calculated the commissions due under the Contract before he and Mrs. Izworski came to believe Plaintiff had breached the Contract. The amount he then calculated was roughly $3,000. To test the credibility of this estimate, the Court accepts as true Defendant s contention that gross sales were usually reduced by 30% because of cancellations, non-payment by customers, and partial shipments. The outstanding amount of gross sales made by Plaintiff as of the date of termination and unaccounted for by Defendant is $97,559.53, as shown in the Difference column of Plaintiff s Exhibit F, which is a summary of the information contained on Plaintiff s Exhibit D, her Weekly Sales Logs for Reducing that by the 30% amount Defendant says typically fell through, we have an amount of sales paid of $68, for which Defendants would normally have received a commission. Defendant s testimony was that its usual commission rate is 15% of what the manufacturers were paid. That results in gross commissions of $10, received by Defendant. It is undisputed that Plaintiff was entitled to 70% of that amount under the Contract. The amount Plaintiff is owed is no greater than $7,

7 august 15, 2008 Supplement to The Lawyers Journal page 297 The Court concludes there is insufficient credible evidence to support Defendant s contention that the amount due Plaintiff is $3,000 or lower. Having found Defendant s chief witnesses less than credible on so many issues, the Court is not inclined to credit their evidence on this issue nor to give them the benefit of the doubt. The Court therefore awards Plaintiff the amount of $7,000, which reflects a slight reduction of the maximum amount she would be due. That reduction is to account for the admitted possibility that some commissions earned might have been paid after the 90-day limit described in the Contract. Plaintiff is also entitled to legal interest of 6% per annum on the $7,000 balance due, from January 31, 2005 (the latest date that Defendant might reasonably have sent it to Plaintiff) through the date of this Decision, April 4, The amount of simple interest for that period is 19.56% or $1, CONCLUSION The full award to Plaintiff is $8, Defendant is entitled to nothing on its Counterclaim. Pursuant to the Rules of Court cited above, this Decision constitutes the verdict of this Court; there will be no separate verdict slip filed. BY THE COURT: /s/friedman, J. Dated: April 11, An Order changing the caption accordingly was entered thereafter. 2 We note that Section E expressly deals only with post-termination competition, but the parties seemed to agree that the same scope of competition would apply prior to termination as well. Jamil Wyatt v. Keith Bullard, Keith Bullard s Auto Liquidation Center, Inc., and USAA Federal Savings Bank Breach of Warranty Rescission Attorneys Fees Unfair Trade Practice and Consumer Protection Law In a buyer s action against the seller of a used automobile, the seller s warranty was breached when the automobile s engine failed after being driven for about 1,100 miles within a period of about ten days, the buyer justifiably rescinded the sale when the seller insisted on additional payment after repair, and the buyer was entitled to recover the purchase price together with attorneys fees under the Unfair Trade Practice and Consumer Protection Law, 73 Pa.C.S. 201 et seq. (Ronald D. Morelli) Kevin Feigel for Plaintiff. Stephen Jurman for Defendants Keith Bullard and Keith Bullard s Auto Liquidation Center, Inc. No. AR In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. MEMORANDUM ORDER O Reilly, J., April 9, 2008 This matter involves the sale of a used car by Defendants, Keith Bullard, an individual, Keith Bullard s Auto Liquidation Center, Inc., (collectively, Bullard ) to Plaintiff, Jamil Wyatt, ( Wyatt ), which failed to perform as represented. After a non-jury trial before me on May 14, 2007, I entered a verdict in favor of Wyatt, and against Bullard in the amount of $5,000 on May 21, Bullard filed a timely Motion for Post Trial Relief, after which I issued a briefing schedule, and scheduled oral argument for October 25, The attorneys thereafter agreed to submit the case to me on briefs. I have reviewed those excellent and able briefs, which adequately set forth the positions of the parties. While Defendant, USAA Federal Savings Bank, ( USAA ) appears in the caption, the claim against it was settled. The facts show that on August 25, 2005, Wyatt bought a used car from Bullard for $6,468. It was a 2000 Chevrolet Prism with 100,000 miles on it. Bullard also provided a warranty for the car, from a third party, known as WINS. Wyatt financed the vehicle with USAA. (N.T. 33). He took delivery of the car on August 22, 2005, (N.T. p. 13), and in early September the car began to emit smoke from the exhaust pipe. It was later learned that the engine needed substantial repairs, and/or replacement. Wyatt brought the car back to Bullard, who attempted to have the engine repaired under the warranty. Initially, the warrantor refused to repair the engine, but Bullard intervened, and the engine was ultimately replaced. Before this happened, however, Wyatt had been to various engine repair shops and got no satisfaction, to-wit, Pep Boys, Cottman, Firestone, and Biberis garage. (N.T. pp. 14, 19, 20, 21). According to Wyatt, he could not get the car back from Bullard unless he paid $500 cash. (N.T. pp. 22, 23). Bullard countered this and said Wyatt only had to pay the $100 deductible under the warranty. Wyatt refused to pay either amount, and rescinded the sale with Bullard. (N.T. 22, 23, 24). He thereafter sued Bullard for his purchase price as well as the exemplary damages available under the Unfair Trade Practice and Consumer Protection Law 73 Pa.C.S.A., 201, et seq., ( UTPC- PL ). I entered my verdict as set forth above. Bullard has filed a timely Motion for Post-Trial Relief asserting that my verdict was in error and was against the weight of the evidence. ANALYSIS The essence of the Post Trial Motion is that Wyatt did not prove the cause of the engine failure, and that the car was not smoking when it was driven off Bullard s lot. The suggestion is that Wyatt drove the car excessively, and Bullard is not to blame. This argument stretches my credulity to the breaking point. This car was sold as being fit for a particular purpose. That purpose was not simply driving it off the lot. To his credit, Bullard provided a warranty at his expense so the car might actually be used for that purpose. When it broke down after being driven about 1,100 miles within a period of about 10 days, I believe that to be a breach of warranty. Hence, my verdict. I also resolved credibility issues against Bullard on the $500 demand, and believed Wyatt. I also believe Wyatt properly rescinded the sale when Bullard insisted on the additional payment. Further, Wyatt s ordeal of trying to get the car fixed, and the problems encountered show that nobody wanted to take responsibility for fixing a basically worn out car. Wyatt s counsel also claimed counsel fees under the UTPCPL for 20 hours of work, which I find reasonable, and calculate a $150 an hour rate for $3000 in counsel fees. Wyatt did not file any Post Trial Motion contesting the verdict so I am not awarding any additional amount, but simply explaining what is in the verdict. Inasmuch as reference to a settlement with the financing company involved herein got into the record, despite my efforts, (N.T. pp. 8-9), I should offer

8 page 298 Supplement to The Lawyers Journal volume 156 no. 17 some explanation in the event of any claim of indemnity or the like. After review of the all the facts, I am not inclined to grant Bullard s Post Trial Motion, and such Motion is DENIED, and my verdict is AFFIRMED. BY THE COURT: /s/o Reilly, J. Dated: April 9, 208 Peter W. Thompson v. Kenneth M. Ross Defamation Arbitration Rule 13200(a) of the NASD Code of Arbitration Procedures Conduct Arising out of Business Activities 1. In a defamation action against plaintiff s supervisor at a financial institution, the defendant s preliminary objections demanding NASD arbitration were properly overruled because the alleged defamatory statements did not arise out of the business activities of the employer or the co-employees as required by the plaintiff s employment agreement and Rule 13200(a) of the NASD Code of Arbitration Procedures. 2. Religious proselytizing, allegations concerning an employee s child care choices and abilities, and gossip about an employee s alleged sexual activities, alleged sexuallytransmitted diseases, and even alleged criminal acts did not have any relationship to the employer s business activities, so as to be matters subject to NASD arbitration. 3. Defendant s alleged statements to the employer, accusing plaintiff of inducing other employees to work for its competitors, did not relate to the employer s business activities, so as to require NASD arbitration, when defendant s alleged conduct was of no apparent benefit to the employer and was motivated primarily by a desire to control the plaintiff s personal life. 4. Conduct does not arise from an employer s business activities merely because its harm was felt by plaintiff largely in the workplace. (Ronald D. Morelli) Robert B. Sommer and Brian J. Sommer for Plaintiff. Larry K. Elliott, David F. Russey, Christopher C. Coss and Thomas J. Momjian for Defendant. No. GD In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. OPINION Friedman, J., April 11, 2008 Defendant appeals this Court s Order overruling his Preliminary Objections to Plaintiff s Amended Complaint and refusing to direct Plaintiff to arbitrate his claim. This Opinion expands on the earlier Memorandum filed in support of that Order. Defendant contends that the dispute between the parties is within the scope of an arbitration clause in Plaintiff s contract with the parties employer. Plaintiff contends, and the Court agreed, that Defendant s conduct was not within his employer s business activities and was so beyond what his employer could reasonably have required or expected of Defendant as to make the arbitration clause inapplicable. Defendant s position seemed to be based more on the fact that Plaintiff and Defendant happen to be co-employees. According to Plaintiff s Amended Complaint, Defendant was the regional manager of Citigroup Smith Barney ( Smith Barney ). Plaintiff was a financial advisor under Defendant s supervision. Defendant contends that Plaintiff s Agreement with Smith Barney requires Plaintiff to submit to NASD arbitration, based on Smith Barney s Principles of Employment, which call for NASD arbitration if its internal dispute resolution process is unsuccessful. Defendant also cites Rule 13200(a) of the NASD Code of Arbitration Procedures which calls for the arbitration of disputes between co-employees such as the parties here, if the dispute arises out of the business activities of [Smith Barney or of the co-employees]. Here, Defendant s eventual Answer to the Amended Complaint may very well assert that the conduct complained of arises out of business activities, but the Court cannot conclude that religious proselytizing, comments on an employee s child care choices and abilities, and gossip about an employee s alleged sexual activities, alleged sexuallytransmitted diseases, and even alleged criminal acts have any relationship to Smith Barney s business activities. Only one aspect of the Amended Complaint might fall within the scope of the arbitration provision, Count IV Slander Per Se: Business Misconduct. This Count, however, is really ancillary to the other three counts which allege conduct by Defendant that is unrelated to any conceivable business activity of Smith Barney. It must be remembered that Plaintiff s former employer is not a target of this suit. The conduct alleged is of no apparent benefit to the employer, and, in fact, if true, would be well beyond the employer s conceivable business purposes. Even though the allegations in Count IV seem related to Plaintiff s employment, Defendant s motive, is alleged to arise from Plaintiff s frustration of Defendant s personal need to control important aspects of Plaintiff s personal life (e.g. his religion and his child s religious influences). Taking the facts pled and the inferences that flow therefrom, the gist of this last count is that Defendant used the ultimate weapon at his disposal after his prior efforts to control Plaintiff s personal life failed: Defendant falsely told Smith Barney that Plaintiff was inducing other co-employees to work for its competitors. We also have considered the fact that the harm Defendant created was felt by Plaintiff largely in his workplace. However, the geographic location where harm is suffered is not determinative of whether an intentional tort, such as that alleged here, arises out of an employer s business activities. Rather, the conduct that leads to the harm is what should be determinative. Again, Defendant s conduct, as pled, had nothing to do with the employer s business activities. It is also noted that even under the NASD rule relied on by Defendant, it is not enough that the tortfeasor and the injured plaintiff be co-employees. The key element for compelling arbitration under the NASD rules is that the dispute arise out of business activities. Here the dispute as alleged arises out of Defendant s personal need to impose his will on plaintiff s personal life and his escalating retaliation when Plaintiff would not submit. The instant dispute does not arise out of Smith Barney s business activities. Plaintiff s right to a trial in the Court of Common Pleas has not been waived. The Court properly overruled Defendant s Preliminary Objections and refused to direct Plaintiff to arbitrate the instant claims. BY THE COURT: /s/friedman, J. Dated: April 11, 2008

9 august 15, 2008 Supplement to The Lawyers Journal page 299 Lynn A. Flaherty and James Flaherty v. William Bell, M.D., St. Clair Memorial Hospital, et al. Jury Charge Contributory Negligence Physician Assistant Reporting Requirements 1. Evidence did not demonstrate that patient should have known to undergo medical test sooner than one week when physician instructed patient to get tests and return to physician s office in one week. 2. Plaintiff s statement of his failure to undergo test immediately after doctor appointment did not establish that he knew tests should have been done immediately. 3. Defendant s failure to show that patient was told to undergo medical tests immediately or that Plaintiff believed that tests should be undergone immediately allows court to deny contributory negligence instructions to jury. 4. Statutory law requiring written report from physician assistant to supervising physician was not complied with by mere office notes available for review by all physicians in the office; report must be affirmatively made to supervising physician. 5. MCARE statute relating to qualification of experts is satisfied when expert, although not board certified in internal medicine, was experienced in diagnosis and treatment of particular condition. (Patricia Lindauer) Stephen Del Sole for Plaintiffs. Peter J. Taylor for Drs. DeGiovanni, Montini and Gobao, d/b/a Primary Care Medicine. John Conti for William Bell, M.D. and St. Clair Memorial Hospital. No. GD In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. MEMORANDUM OPINION AND ORDER Manning, J., April 16, 2008 Before the Court is the Motion for Post-Trial Relief filed on behalf of the defendants John Montini, M.D., Lesley DeGiovanni, M.D., Kellie Egidi, P.A. and Lesley DeGiovanni, M.D., P.C. 1 For the reasons that follow, the Motion will be DENIED. In this medical malpractice action, the plaintiffs allege that the defendants failed to diagnose an infection in her brain when she was seen in their offices on December 4, 2001 by defendant Egidi, an employee of defendant, Lesley DeGiovanni, M.D., P.C. The infection was not diagnosed until December 9, 2001 when the plaintiff reported to the emergency room at St. Clair Hospital with more severe symptoms and underwent testing. When the infectious process was identified, she was taken by helicopter to Allegheny General Hospital for emergency surgery to treat the infection in her brain. She had additional surgery several weeks later and was hospitalized or in a rehabilitation facility for six months thereafter. She continues to suffer impairment from her injuries. At the conclusion of the trial, the jury found in favor of the plaintiffs and against the defendants Montini, DeGiovanni and Egidi, and awarded the plaintiff Lynn Flaherty $2,290, and awarded her husband, James Flaherty $1,000, on his loss of consortium claim. 2 The defendants filed a Motion for Post-Trial Relief raising the following claims: 1. The Court erred in failing to give the following requested instructions: a. Defendants requested instruction number 21 (Contributory negligence); b. Defendants requested instruction number 3 (Unfortunate medical outcome); c. Defendants requested instruction number 4 (No presumption or inference of negligence); d. Defendants requested instruction number 5 (Physician not a warrantor or guarantor); and e. Defendants requested instruction number 6 (Mere mistake of judgment). 2. The Court erred in giving the jury plaintiffs proposed instruction number 7 based upon 49 Pa. Code (b); 3. The Court erred in instructing the jury, as a matter of law, that they could not consider the plaintiffs alleged contributory negligence; 4. The trial court erred in restricting the defendants closing argument by prohibiting them from arguing to the jury that plaintiffs conduct contributed to their injuries; 5. The Court erred in overruling defense counsel s objection that plaintiffs expert, Michael Greenberg, M.D., went beyond the scope of his report when he commented on the failure of defendant, Egidi, to prescribe an antibiotic when she prescribed a steroid and on the physician assistant agreement; 6. The Court erred in overruling defense counsel s objection to the testimony of Robert J. Carpenter, M.D., where Dr. Carpenter s qualifications were insufficient to qualify him as an expert under the MCARE Act; and 7. The verdict was unsupported by substantial evidence and is excessive under the circumstances, particularly as to the $1 million dollar loss of consortium verdict as to James Flaherty. Three of defendants claims, 1(a), 3 and 4, relate to the Court s decision to not charge the jury on contributory negligence by the Plaintiffs and they will be addressed together. The defendants contend that the Court s refusal to charge the jury on contributory was improper because there was evidence introduced that could have led the jury to conclude that the plaintiffs were at least partially responsible for the harm they suffered because they were non-compliant with the care recommended. The defendant claimed that the plaintiffs failed to obtain blood tests and an x-ray recommended by defendant Egidi on December 4, The Superior Court recently addressed the issue of contributory negligence by a patient in a medical malpractice case in Angelo v. Diamontoni, M.D., 871 A.2d 1276, (2005), a case with facts similar to those presented in this matter. The Superior Court held: We recognize, as Dr. Sadhukhan [defendant physician] asserts, that where there is any evidence which alone could justify an inference of a disputed fact, such dispute must go to the jury, no matter how strong or persuasive may be the countervailing proof. McCullough v. Monroeville Home Ass n, 270 Pa.Super. 428, 411 A.2d 794, (1979).

10 page 300 Supplement to The Lawyers Journal volume 156 no. 17 Thus, any evidence of contributory negligence mandates submission of the issue to the jury. See Id. Nevertheless, the burden to establish the plaintiff s conduct as a contributing factor in his injury rests with the defendant, who must show both the negligence of the conduct alleged and the causal relationship of that conduct to the injuries for which damages are sought. See Pascal v. Carter, 436 Pa.Super. 40, 647 A.2d 231, 233 (1994). Our Courts have distilled these elements as follows: Contributory negligence is conduct on the part of a plaintiff which falls below the standard [of care] to which he should conform for his own protection and which is a legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff s harm. Contributory fault may stem either from a plaintiff s careless exposure of himself to danger or from his failure to exercise reasonable diligence for his own protection. Columbia Med. Group, Inc. v. Herring & Roll, P.C., 829 A.2d 1184, 1192 (Pa.Super. 2003) (quoting Thompson v. Goldman, 382 Pa. 277, 114 A.2d 160, 162 (1955)). 871 A.2d 1276, (2005). The facts in Angelo were that the twenty-three year old plaintiff first saw the defendant-physician on July 19, 2001 complaining of vomiting, blurred vision, dry mouth, lightheadedness and inability to work. The doctor noted a family history of diabetes and that the plaintiff had experienced a significant weight loss. The physician believed that the plaintiff had the flu, but did suggest that he obtain a fasting blood draw within the next month. The plaintiff returned on August 13, 2001, not yet having obtained the blood test. He complained again of vomiting and nausea and had an elevated heart rate. The defendant believed he was suffering from gastroenteritis and sent him home. He died the next day from diabetic ketoacidocis. The Trial Court gave the jury a contributory negligence instruction requested by the defendant and, because the jury found the plaintiff had been more than 50% negligent in bringing about his injuries, a defense verdict was entered. Plaintiff s Post-Trial Motions were denied when defendant took judgment prior to the Trial Court acting and the Plaintiff appealed. In its 1925(b) Opinion, however, the Trial Court stated that it had erred in instructing the jury on contributory negligence and urged the Superior Court to grant the plaintiff a new trial. The Superior Court agreed, finding that evidence did not support the defendant s theory that the plaintiff was contributorily negligent. The Superior Court reversed and remanded the matter for a new trial, stating: limitations on the scope of the patient s duty undermine any inference that Christopher was negligent in failing to obtain a fasting blood draw prior to his death. Although Christopher s chart suggests that Dr. Sadhukhan recommended a fasting blood draw during the July 19 appointment, by her own admission she attached no urgency to the recommendation, allowing that he might obtain it any time within the following month. N.T., 3/22/04, at 50. On the date of Christopher s death, just three weeks later, that month had not elapsed. Were we to hold Christopher s failure to obtain his blood draw sooner a breach of duty subject to a charge on contributory negligence, we would effectively hold him to a higher standard of care to understand the medical urgency of the test than the physician who had suggested it. Cf. Gorski, 812 A.2d at 703. Dr. Sadhukhan cites no authority for imposing so high a burden on a patient, nor are we aware of any. 871 A.2d at (Emphasis added). The defendants contend that the plaintiff was contributorily negligent because she failed to obtain an x-ray and blood test that Egidi prescribed for her on December 4, It is not disputed that had the plaintiff obtained that x-ray and blood test within a day or two of her visit to DeGiovanni s office, she almost certainly would not have suffered the catastrophic injuries that she did. It was also riot disputed, however, that defendant Egidi, like the physician in Angelo, did not attach any urgency to her recommendation that the plaintiff obtain the prescribed tests. She did not tell either the plaintiff or her husband that it was important that these tests be obtained in the one to two day window during which, as all experts agreed at trial, treatment of the infection would have made a difference in the outcome of the infection. Egidi s own testimony established that she did not believe that it was necessary that these tests be conducted immediately, as the following excerpt demonstrates: QUESTION: Now the sinus x-ray and the blood tests, there s no indication in the chart that these were ordered on a STAT or urgent basis? ANSWER: That s correct. QUESTION: In fact, they were not ordered on an urgent basis, correct? ANSWER: I did not order the tests STAT, no. QUESTION: Okay. You just said get the tests and come back in one week, seven days, December 11th, right? ANSWER: That s what I have documented, yes. QUESTION: If you didn t order it STAT and you didn t tell them when to get them, it s fair to assume as long as they got them before the week was up and got back to your office, that s what you told them to do, right? ANSWER: I did not tell her when to get the tests. QUESTION: Okay. You just told her when to return? ANSWER: Yes. QUESTION: Is there any reason why you didn t say, get your sinus x-rays, get your blood tests and see me in two days? ANSWER: Is there any reason I didn t tell her to come back in two days? QUESTION: Right. ANSWER: I thought one week was a reasonable amount of time to see her back in. QUESTION: And it was a reasonable amount of time to get the tests, correct? ANSWER: Yes. And that was based on her clinical appearance. (N.T., 147, 142). If defendant Egidi thought that one week

11 august 15, 2008 Supplement to The Lawyers Journal page 301 was a reasonable amount of time to get the tests, as she testified above, it is impossible to conclude, as the defendant suggests, that the plaintiff and her husband knew or should have known to get them earlier. The defendants had the burden of establishing that the requested instruction was warranted by the evidence presented. They have been unable, however, to point to any evidence demonstrating that either plaintiff knew or should have known to obtain the test immediately. Defendants claim that the testimony of their experts, Karl Bushman, M.D. and Michelle Kaufmann, P.A., provided that evidence is not accurate. While both experts testified that had the testing been done more quickly, the infection would have been caught early enough to be successfully treated, neither could establish any basis to conclude that the patient knew that obtaining the tests quickly was necessary. Ms. Kauffman s testimony that the patient was non-compliant is an opinion without any basis in fact and is contradicted by the record. As the plaintiffs were told simply to obtain the tests and return in one week to review the results and five days elapsed before the plaintiff presented at St. Clair Hospital where the tests were done and the damage discovered, it is simply not true that they were non-compliant. They actually obtained the tests recommended by defendant Egidi in the time frame she thought reasonable. That time frame, however, was, according to all experts, too long. Reliance on the testimony of plaintiffs experts is similarly misplaced. Again, all that their testimony established is that had the testing been done earlier than five days from the visit with defendant Egidi, the outcome would have been different. These experts rightfully, however, opined that it was the responsibility of the medical practitioner to impart upon the patient the need for prompt action. Finally, the defendants contend that the deposition testimony of James Flaherty establish[ed] at a minimum, that he understood on December 4, 2001 (or his wife understood, or both) the urgency of the situation, and that the tests ordered by Ms. Egidi should be done immediately, i.e., that day. (Defendant s Brief at Page 9). Nowhere in the excerpt from Mr. Flaherty s deposition testimony reproduced in the defendants brief, however, does he ever say that he understood that the testing was to be done on an urgent basis. While it is true that in his deposition he testified, mistakenly it turns out, that he did take his wife for the blood work as soon as he left the appointment with Egidi, this testimony did not establish that he knew that the testing should have been done that day. At minimum, the defendant needed to point to some evidence which showed either that the plaintiff was told to get the testing done as soon as possible or that the plaintiff subjectively believed that the testing should have been done quickly. Defendants failure to establish either of these facts required that this Court deny the request for a contributory negligence charge. The defendants complaint about the Court s restriction on defense counsel s closing argument and the Court s instruction to the jury that they could not consider the plaintiffs conduct in rendering a verdict are also without merit. Because the defendants failed to meet their burden of establishing a basis for a contributory negligence charge, argument on that theory was appropriately precluded. When defense counsel made comments in his closing that introduced principles of contributory negligence, it was entirely proper for the Court to make sure that the jury understood that they could not consider the plaintiffs alleged negligence in rendering their verdict. In Walker v. General Motors Corporation, 557 A.2d 1 (Pa.Super. 1989), the Superior Court held that it was proper for a Trial Court to provide the jury with a curative instruction where counsel, in closing argument, introduced an issue that was not properly before them. Here, because of defense counsel s argument, it as necessary for the jury to be told that they could not consider any claim that the plaintiffs were somehow responsible for their injuries because of the failure to obtain the testing prescribed by defendant Egidi. The defendant also complains that the Court erred when it refused their requested points of charge 3, 4, 5 and 6. The requested instructions were not necessary. The principles of law applicable to this case were adequately presented to the jury through the use of the standard instructions. The cases cited by the defendant in support of these instructions only held that these instructions were permissible, not that they were required. The defendant has not cited any cases which hold that any of these instructions are required. Where, as here, the instructions provided by the Court, when considered as a whole, provide the jury with the proper legal principles on which to base its verdict, the refusal of the Court to provide alternate language to explaining those principles will not be error. Next, the defendant contends that the Court erred in instructing the jury, consistent with their proposed instruction number 7, as follows: Under Pennsylvania Law, the physician assistant must report orally or in writing, to a physician assistant supervisor, within 12 hours, medical regimens executed or relayed by him or her while the physician assistant supervisor was not physically present, and the basis for each decision to execute or relay a medical regimen. (Plaintiff s Proposed Point No. 7). This charge was based on 49 Pa. Code (b), which requires a physician s assistant to make a written report to the supervising physician within twelve (12) hours of the assistant executing or relaying a medical regimen to a patient. The evidence at trial certainly created an inference that this provision was violated. Defendant argues that this instruction was not warranted because the evidence established that Egidi authored the office note of December 4, 2001, and the note was available for review by all physicians in the office immediately thereafter. (Defendant s p. 14). The clear language of section (b) requires more than an entry in a physician practice s office notes being available to the supervising physician; it requires that the action taken by the physician s assistant be reported to the supervising physician within twelve (12) hours. The purpose of this regulation is to make sure that physician assistants are properly supervised by requiring that they make the physician supervisor aware of their actions. This purpose is not served if the reporting requirement is a passive one, as the defendant suggests, and can be satisfied merely by the medical records noting the acts of the physician assistant. Clearly, the purpose of this provision is to require active supervision of the physician assistant by the supervising assistant; a purpose that can only be served if there is active and ongoing supervision of the physician assistant. Accordingly, defendant Egidi did not comply with the reporting requirements simply by making an entry into the office notes section of the plaintiffs medical record. The regulation required that she affirmatively report her actions to her supervising physician. The evidence was certainly sufficient to allow the jury to infer that she did not comply with these reporting provisions. It was proper, therefore, for this Court to instruct the jury as to that obligation and to further advise them that they could consider a failure to comply, if that was established by the plaintiffs, as evidence of the defendants negligence. The defendants next claim concerns the testimony of

12 page 302 Supplement to The Lawyers Journal volume 156 no. 17 plaintiffs expert, Michael Greenberg, M.D., who testified regarding the supervision of physician assistants. Defendant claims that when Dr. Greenberg testified concerning Egidi s prescription of steroids for the plaintiff and about the physician assistant agreement between Egidi and the medical practice, he went beyond the scope of his report. With regard to the reference to steroids, Dr. Greenberg s supplemental report dated January 10, 2007 made specific reference to Ms. Egidi s prescribing steroids and not prescribing antibiotics. (See January 10, 2007 report of Michael Greenberg, M.D., at page 2). The physician agreement was also clearly within the scope of Dr. Greenberg s report. Dr. Greenberg testified that the Drs. Montini and DeGiovanni permitted Ms. Egidi to treat the plaintiff without the supervision required by the Pennsylvania State Board of Medicine. The supervision requirements are set forth in 49 Pa. Code , which makes reference to the need for an agreement between the physician assistant and the supervising physician. In offering his opinion that the supervision failed to comply with these requirements, Dr. Greenberg placed the defendants on notice that the failure to comply with the specific requirements of section , including the requirement that the defendants comply with the terms of the agreement between the physician assistant and the supervising physician, would be referenced in his testimony. It is important to remember that departure from the expert s report becomes a concern if the trial testimony would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the response. Petrasovits v. Klainer, 719 A.2d 799, 804 (Pa.Super. 1998). The Superior Court concluded, We will not find error in the admission of testimony that the opposing party was on notice of or was not prejudiced by. Id. The defendant was aware that an issue at trial would be whether P.A. Egidi was supervised by a physician consistent with the requirements of relevant provisions of Pennsylvania law. In defendants Preliminary Objections filed on February 24, 2004, the defendants made reference to the provisions of 63 P.S , the statutory authority for the regulation found at 49 Pa. Code The defendants specifically made reference to the requirement that a physician assistant be under the supervision of a physician pursuant to an agreement. It is, therefore, clear that the defendants were aware that plaintiffs were alleging in their complaint that the defendants failed to comply with the statute and regulations that governed the practice of physician assistants, including the requirements that there be an agreement between the physician assistant and the physician. The reference to the failure of the defendants to comply with the supervision requirements in Dr. Greenberg s report put them on notice that, in his opinion, the defendants failed to comply with those provisions. The defendants were not, therefore, deprived of the opportunity to meaningfully respond to that assertion. The defendants also complain that the Court erred in finding that plaintiffs Otolaryngology expert, Robert J. Carpenter, M.D., was qualified to testify regarding the standard of care for physician assistants and internal medicine physicians. They contend that the provisions of the MCARE (Medical Care and Reduction in Error) Act required the Court to find that because Dr. Carpenter was not board qualified in internal medicine, he was not qualified to offer an opinion as to the care provided by the defendant physician practice or by PA Egidi. First, it is not clear that MCARE applies. Dr. Carpenter was asked to testify as to the actions of PA Egidi. Obviously, Ms. Egidi was not a physician. MCARE requires that physicians testifying as to another physician s standard of care be substantially familiar with the standard of care and practice in the same subspecialty. Because Ms. Egidi was not a physician, MCARE would not apply as Dr. Carpenter was not offering an opinion as to the standard of care of another physician. Even if MCARE applied, however, Dr. Carpenter was qualified to offer an opinion in this matter because, as an otolaryngologist, he was qualified to testify under 40 P.S (d), which provides: (d) Care outside specialty. A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that: (1) the expert is trained in the diagnosis or treatment of the condition, as applicable; or As an otolaryngolgist, Dr. Carpenter was certainly trained in the diagnosis or treatment of sinus infections. He testified that treatment of such conditions has been a routine part of his practice for over thirty years and that he has performed surgery on the nose and sinuses. The Court did not err in permitting his testimony. See also Estate of Gbur v. Golio, 932 A.2d 203 (Pa.Super. 2007) (A radiation oncologist is qualified, under 40 P.S (d), to testify as to the standard of care of a urologist in a case involving a failure to diagnose cancer from the results of a bone scan.) The defendant s final claim is a request for a remittitur on the basis that the verdict was excessive, especially the award of $1,000, to James Flaherty on the loss of consortium claim. The standard for evaluating a claim that a verdict is excessive was recently set forth in Estate of Gbur, supra. The Superior Court wrote: The grant or refusal of a new trial because of the excessiveness of the verdict is within the discretion of the trial court. Hall v. George, 403 Pa A.2d 367 (1961). This court will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice. Kravinsky v. Glover, 263 Pa. Superior Ct. 8, 396 A.2d 1349 (1979). We begin with the premise that large verdicts are not necessarily excessive verdicts. Each case is unique and dependent on its own special circumstances and a court should apply only those factors which it finds to be relevant in determining whether or not the verdict is excessive. Mineo v. Tancini, 349 Pa. Superior Ct. 115, 502 A.2d 1300 (1986). A court may consider the following factors, inter alia: (1) the severity of the injury; (2) whether the plaintiff s injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony of the plaintiff (and, herein, the court pointed out that where the injury is manifested by broken bones, disfigurement, loss of consciousness, or other objective evidence, the courts have counted this in favor of sustaining a verdict); (3) whether the injury will affect the plaintiff permanently; (4) whether the plaintiff can continue with his or her employment; (5) the size of the plaintiff s out-of-pocket expenses; and (6) the amount plaintiff demanded in the original complaint. Kemp. v. Philadelphia Transportation Co., 239 Pa. Superior Ct. 379, 361 A.2d 362 (1976) Mecca v. Lukasik, 366 Pa.Super. 149, 530 A.2d 1334, 1340 (1987).

13 august 15, 2008 Supplement to The Lawyers Journal page 303 Pa. R. Civ. P (b) further provides: A damage award is excessive if it deviates substantially from what could be reasonable compensation. In deciding whether the award deviates substantially from what could be considered reasonable compensation, the court shall consider (1) the evidence supporting the plaintiff s claim; (2) factors that should have been taken into account in making the award; and (3) whether the damage award, when assessed against the evidentiary record, strongly suggests that the trier of fact was influenced by passion or prejudice. The defendant has the burden of convincing the court that the award deviates substantially from what could be reasonable compensation. Pa. R. Civ. P (b), N. 2. The factors that the Court should consider are those set forth in the jury instructions described in Rule 223.3, which are: 1) pain and suffering; 2) embarrassment and humiliation; 3) loss of ability to enjoy the pleasures of life; and 4) disfigurement. Applying these factors to the evidence presented in this case leads to the conclusion that the award is not excessive. Turning first to the damages awarded to Lynn Flaherty, the amount awarded to her, $2,000,000.00, was not excessive. The evidence established that as a result of the defendants failure to properly diagnose the infection, Lynn Flaherty had to undergo an emergency craniotomy and another surgical procedure one month later to replace the portion of her skull that was removed during the first surgery. She had shunts placed in her brain; was dependant on a ventilator and feeding tube for a period of time; was either in a hospital or rehabilitation facility for six months; underwent extensive physical and occupational therapy and required in home nursing care. It is beyond dispute that her life was forever altered by the injuries she suffered. She was fifty-four when she suffered the injury and was, according to the evidence, healthy, happy and active. The infection and its treatment, according to Plaintiffs psychiatric expert, Lawson Bernstein, M.D., altered her personality and permanently impaired her cognitive abilities. She is at greater risk for further deterioration of her abilities and may require increasing levels of care, including custodial care, as she ages. The negligence of the defendants robbed the Plaintiff of a large portion of her adult life. She has experienced in the past, and will continue to experience in the future, pain and suffering; humiliation and embarrassment and loss of life s pleasures. The surgery also left her with noticeable disfigurement because of the large indentation in her head at the site of her craniotomy. Given the serious and permanent nature of her injuries and her relatively young age, the jury s award was appropriate and adequate compensation for her injuries. The loss of consortium award was likewise appropriate. James Flaherty has lost the woman that he has known and loved for thirty years. He has been deprived of the companionship and comfort of his wife for the remainder of his or her life. Rather than enjoy the last half of his adult life with his wife, he will increasingly become her caregiver. In some ways, he will suffer as much or more than his wife and he sees her suffering and her inability to provide him with the companionship she provided before her injury. The award to James Flaherty was not shocking to this Court and should be upheld on appeal. BY THE COURT: /s/manning, J. ORDER AND NOW, this 16th day of April, 2008, it is ORDERED, for the reasons set forth in the foregoing Memorandum Opinion, that the Defendants Motion for Post-Trial Relief is DENIED. BY THE COURT: /s/manning, J. 1 The jury returned verdicts in favor of the defendants William Bell, M.D. and St. Clair Memorial Hospital. For purposes of this Opinion, when the court refers to the defendants, it is referring to the defendants found liable by the jury. 2 Pursuant to plaintiff s Motion, the verdicts were molded to reflect joint and several liability for the defendants and for their corporate employer, Lesley DeGiovanni, M.D., P.C. and to account for delay damages, with the total award being modified $3,461, Robert Friedman v. Hershey Foods Corporation and Giant Eagle, Inc. Motion for Summary Judgment Alternative Arguments 1. Second Motion for Summary Judgment may be considered by lower court, despite first Motion being denied on appeal, when the basis for the second motion is entirely different from the first. 2. In breach of warranty action, issues of fact exist when safety of particular product has not been determined, time frame of Plaintiff s knowledge at issue, and nature of Plaintiff s reaction to the product at issue, as all must be subject of discovery process. (Patricia Lindauer) Michael P. Petro for Plaintiff. Heather H. Heidelbaugh for Hershey Foods Corporation and Giant Eagle, Inc. No. GD In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. MEMORANDUM IN SUPPORT OF ORDER Friedman, J., April 24, 2008 Defendants have filed a second Motion for Summary Judgment on the Pleadings and judgment on Admission (hereinafter, the Second Motion). Their first such Motion was granted by the undersigned and that grant was affirmed in all but one respect. The Superior Court held that the negligence and strict liability claims of the Plaintiff were time-barred but that the breach of warranty claim might be timely filed depending on whether or not the evidence establish[es] that Friedman purchased Hershey s syrup between September 7, 2000 and October 31, Defendants argued that their instant second Motion may be considered, despite the clear implication of the Superior Court Opinion that accompanied the remand to this Court, because the current Motion is not based on lack of timeliness, but rather is based on the contention that a breach of warranty action involving uncontaminated food has not been recognized in Pennsylvania. Defendants argue that the Hershey s Syrup label clearly revealed that it contained xanthan gum and that Plaintiff therefore received exactly what he purchased. The Court agrees with Defendants that it probably can consider this alternative argument for judgment on the pleadings. However, the Court does not agree that the law of

14 page 304 Supplement to The Lawyers Journal volume 156 no. 17 Pennsylvania would not provide relief if a particular ingredient in food that was originally thought to be safe later proved to be unsafe. Furthermore, Defendants contention that Plaintiff s reaction to the xanthan gum was idiosyncratic is not an admitted fact. There are thus at least three material facts in dispute that require at a minimum further investigation via discovery, the actual safety or not of xanthan gum, the extent and time frame of Defendant s knowledge of any lack of safety, and the nature of Plaintiff s reaction to the xanthan gum, idiosyncratic or otherwise. These aspects of the dispute cannot be addressed until discovery has been completed, when a motion for summary judgment might be appropriate. Defendant also contended that a judgment on admission is warranted based on Plaintiff s statement in prior litigation that a claim based upon the breach of warranty had no chance of success. This is a layperson s legal conclusion, not his prior allegation of fact, so this aspect of Defendant s Motion must also be denied. Defendants Second Motion must be denied in its entirety, without prejudice to their right to re-raise the issues of the safety of xanthan gum and its connection to reactions such as Plaintiff s via a motion for summary judgment or via a jury trial. We note that the denial of the judgment on admission is final and may not be revisited by a judge of coordinate jurisdiction. See Order separately filed. BY THE COURT: /s/friedman, J. Dated: April 24, 2008 Laura Catherine Gorecki v. Polly Elkin-Walker v. Terry Blair Dog Bite Prior Knowledge Summary Judgment 1. Plaintiff presented no evidence that dog had been mistreated and was therefore dangerous where Defendant had no first-hand knowledge of mistreatment and Defendant s only safety concern related to the particular breed of the dog. 2. Defendant s deposition that dog was good and indicating conjecture about how the dog may have been treated in the past did not show that Defendant was aware of dog s dangerous propensity. 3. Owning a dog that is of a breed that is often associated with violence is not sufficient to show that particular dog was dangerous. (Patricia Lindauer) Timothy Conboy for Plaintiff. Brian S. Kane for Polly Elkin-Walker. Terry Blair, pro se. No. GD In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. MEMORANDUM IN SUPPORT OF ORDER Friedman, J., April 24, 2008 Defendant has filed a Motion for Summary Judgment in the captioned dog bite case, contending that Plaintiff has no evidence that Defendant had any actual or constructive knowledge that the dog that lived in her home and that had bitten Plaintiff was dangerous. The Court took the Motion under advisement so that we could read the entire disposition of the Defendant, to see if the gist of her deposition was as Plaintiff contended. This is not a situation where Defendant is relying on her own testimony. The rule of Nanty-Glo 1 does not apply. Rather, it is Plaintiff who contends that Defendant, at p. 24 of her deposition, admitted prior knowledge that the dog had been mistreated and that therefore Defendant should have been aware that the dog had dangerous propensities. Specifically, Plaintiff points to Defendant s statement that [the prior owner s] ex-wife had kept [the dog] locked up in the trailer the year and a half that she had him, and he was not properly social the whole time that they were in possession of him. Plaintiff cites Deposition of Defendant, p. 24, lines The full deposition of Defendant, however, makes it clear that Defendant had no first-hand knowledge of such treatment and that those select lines were in the context of the Defendant s post-bite decision to put the dog down. Plaintiff has provided no non-hearsay evidence to support the conjecture made by Defendant that the dog was in fact kept locked up in the trailer and was not properly social. See especially page 8 where Defendant provided Plaintiff s attorney with information about the ex-wife s then-current address and pages 9-11 where Defendant talks about the kids using the dog as a pillow and about Defendant s only safety concern being related to the breed. Defendant s pre-bite concern about the alleged mistreatment of the dog centered on the dog s having untreated food allergies that the ex-wife refused to pay to treat and that as a result the dog was malnourished, a condition that was corrected once the dog was in Defendant s home. There is no evidence that the dog was mistreated in any other way. Plaintiff also attaches an expert report to her Brief in Reply to the Motion for Summary Judgment. The expert report was prepared by a dog obedience trainer, who we assume for purposes of argument is qualified to testify about breed characteristics. Counsel for Plaintiff contended during the argument on the Motion for Summary Judgment that the report supports Plaintiff s circumstantial case that the dog was set up to have violent propensities. (Videotape of argument on Motion for Summary Judgment, , tape time 12:37.) Plaintiff has adduced no other evidence to suggest that the dog in question was in fact dangerous or that Defendant should have known that he was likely to bite. The fair gist of Defendant s deposition, in which she answered questions propounded solely by Plaintiff, is that the dog was a good dog who seemed as shocked as anyone that she had injured Plaintiff. Defendant nevertheless had the dog destroyed rather than risk a subsequent injury to anyone. The statements Plaintiff relies on are clearly a retrospective conjecture regarding what may have happened to the dog previously, not a description of Defendant s pre-bite awareness of a dangerous propensity. There is absolutely no testimony by the Defendant anywhere in her deposition that suggests that the dog did anything while at her house that pointed towards his being dangerous. The mere fact that the dog s breed can be dangerous is not sufficient to show either that this dog was dangerous or that Defendant should have known it was dangerous. While the Court agrees that no dog is entitled to one bite, the Court does not agree that the law requires an owner of a dog of a pit bull-like breed to be strictly liable to someone who is injured by the dog. Plaintiff s position indeed would require a strict liability standard. The basis for liability here is negligence and the Plaintiff has adduced no evidence sufficient to make out a prima facie case. At most Plaintiff has extracted a few words out of con-

15 august 15, 2008 Supplement to The Lawyers Journal page 305 text and attempted to give them a legal significance that they do not have in context. Even the out-of-context statement is mere conjecture by Defendant of what may (or may not) have been the treatment given the dog by the Defendant s boyfriend s ex-wife. The Plaintiff has adduced no evidence that the dog was in fact maltreated by the ex-wife nor has she adduced any evidence that Defendant was aware prior to the date of the bite of any such maltreatment. In the end, Plaintiff s only evidence is that of an obedience trainer that dogs such as the instant one can be dangerous. This is not sufficient to demonstrate that Defendant was aware of this particular dog s dangerous propensity, if indeed it had any such propensity. The Motion for Summary Judgment must be granted. See Order filed separately. BY THE COURT: /s/friedman, J. Dated: April 24, Borough of Nanty-Glo v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). Remit Corporation v. Edith Potter Credit Card Debt Transfer of Debt 1. Documentary evidence submitted by Remit was insufficient to show that cardholder owed the amount claimed, plus interest and late fees to the issuer of the card. 2. Limited and incomplete records were insufficient as to contract terms, debt amount, and assignment for finding in favor of Remit. (L. M. Lundberg) Laurinda J. Voelcker for Plaintiff. Meghan M. Tighe for Defendant. No. AR In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. DECISION Friedman, J., June 2, 2008 This Decision is filed pursuant to Pa. R.C.P See also Pa. R.C.P (c)(2). The captioned matter involves a Discover credit card debt allegedly owed by the Defendant to the card issuer which allegedly sold the debt to Unifund CCR Partners as part of a package of charged off debts. Unifund then transferred the debt in some fashion to instant Plaintiff for collection. We have assumed, without deciding, that the assignments or transfers leading to the named Plaintiff were proper and that Plaintiff would have the right to a judgment against Defendant so long as the evidence shows, by a preponderance, that Defendant did owe the amount claimed, plus interest and late fees, to the issuer of the Discover card. Defendant admits that she had the Discover card at issue and that she used it at some point in the past, but not very much. She admits making payments over the years totaling more than $4,000. Plaintiff has offered no proof of what the contract terms were that Defendant agreed to at the time she first was given the card, in 1994 or The earliest evidence of what the terms might have been is Plaintiff s Exhibit 4, which reflects that it is a 1999 version. However, there is no evidence of what purchases Defendant made using the card or when they were made. In particular, there is no evidence that she purchased anything after Plaintiff s Exhibit 4 was created. There is therefore no evidence that by using the card after a certain date she accepted the 1999 version of the terms and conditions of the credit card. (We note that on occasion a card statement in Plaintiff s Exhibit 5 has an entry for a Purchase, but the testimony, from Plaintiff, was that that was not a real purchase but was rather a late fee.) Plaintiff has not proven that the limited records it received in support of the face amount of the debt Unifund purchased from the issuer are consistent with the bank s agreement with Defendant. All we know is that the issuer appears to have charged off, which, according to Plaintiff, means the issuer has taken a tax loss of $4,640.38, based on an unexplained amount the bank says Defendant owed it as of July 31, (See the last several pages of Plaintiff s Exhibit 5.) Plaintiff has the burden of proving the terms of the contract with the Defendant. It has not done so. Plaintiff has the burden of proving that the debt purchased was the correct amount Defendant owed. It has not done so. Any ruling in favor of Plaintiff would have to be based on conjecture and speculation. In effect, Plaintiff is asking the Court to assume that the issuer s incomplete records are correct and to further assume that Defendant made purchases in or after 1999 and so accepted the new terms of the credit card agreement. The Court refuses to make these unsupported assumptions. We note that the documentary evidence was admitted as Plaintiff s business records. That ruling, however, does not make those records believable as to the amount the issuer was owed by Defendant. Furthermore, there is insufficient proof of an assignment from the bank to Unifund. All we have are Plaintiff s Exhibits 2 and 3, which are Unifund s own documents and which were attached to the Complaint filed in this action, and Plaintiff s Exhibit 1, which is an incomplete photocopy of an affidavit of claim by an account manager of Discover Financial Services, Inc. Missing from Exhibit 1 is the annexed statement of Defendant s account. The actual assignment to Unifund is only referred to in Exhibit 1 but is not otherwise in evidence. Plaintiff would have us take on faith the accuracy of the issuer s claims without any reliable record whatsoever. The Court finds in favor of Defendant and against Plaintiff. Pursuant to the Rules of Court cited above, this Decision constitutes the verdict of this Court; there will be no separate verdict slip filed. BY THE COURT: /s/friedman, J. Dated: June 2, 2008 Cynthia L. Schofield v. Wal-Mart Stores, Inc., Lasaun Sandy Beeman, Yolanda Godson & Artishae Martin Motion to Strike Default Judgment Motion to Open Default Judgment Rule 206.5(C) Motion to Strike or Open Default Judgment is denied when Defendant filed Motion four months after judgment was entered, Store Manager s failure to forward two notices of complaint to corporate offices is inadequate excuse, and Plaintiff s notices substantially followed the forms required

16 page 306 Supplement to The Lawyers Journal volume 156 no. 17 by Rule (Patricia Lindauer) Wayne M. Chiurazzi for Plaintiff. Robert W. Murdoch for Wal-Mart Stores, Inc. Lasaun Sandy Beeman, pro se. Yolanda Godson, pro se. Artishae Martin, pro se. No. GD In the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division. MEMORANDUM ORDER O Reilly, J., April 28, 2008 After review of the pleadings, its is hereby ORDERED, ADJUDGED and DECREED that the Motion of the Defendant, Wal-Mart Store, Inc. ( Wal- Mart ) To Strike Default Judgment Or Open Default Judgment is Denied. Specifically, the judgment was entered on September 27, 2007 and the Motion herein was filed on February 1, 2008, a period of four (4) months. The Complaint had been served by the Sheriff on December 15, Wal-Mart s Motion is predicated on (1) its Store Manager failed to follow store policy and notify Wal-Mart s home office in Bentonville, Arkansas; (2) the Notice of Default, sent on September 6, 2007 was likewise not forwarded by the Store Manager; and (3) the Notice of Default is not in accord with Rule Initially, the time delay is unconscionable. Second, the Store Manager is, indeed, the manager and not a low level employee. Third, he allegedly failed to notify the home office twice when the Complaint was filed and when he got the Notice of Intent to take default. Fourth, the internal workings, or the failure thereof, of a large commercial entity is not an adequate excuse for Wal-Mart s failures herein, particularly given the passage of a significant amount of time. Fifth, the Notice of Default is in compliance with Rule In this regard, Wal-Mart put forth a yeoman s effort in parsing the required language of the Notice. I have analyzed the Notice used by the Plaintiff and it is substantially in the required form. Thus, while the first sentence of Plaintiff s Notice does not contain the exact verbiage of the recommended language, it clearly expressed the intent that is, that Wal-Mart has failed to take action and unless it does, it may lose valuable rights. Indeed, the balance of the Plaintiff s form tracks the operative language of the Notice and demonstrates NO failure of Notice by the Plaintiff. Therefore, under Rule 206.5(c), the Motion does not set forth prima facie grounds for relief and thus, I have entered the within Order. BY THE COURT: /s/o Reilly, J. Dated: April 28, 2008 Commonwealth of Pennsylvania v. Gerald Watkins PCRA Petition Confession Ineffective Assistance of Counsel 1. Where admissibility of Defendant s confession to homicide detective was decided by highest court to which Defendant had right to appeal, and where Defendant now asserts, through PCRA petition, new legal theories (confession obtained under duress) and new factual allegations (which contradict Defendant s testimony at previous suppression hearing) claim must be dismissed. 2. Defendant s claim that counsel was ineffective for failure to allege Defendant s mental infirmities will fail where, in Defendant s petition, Defendant states that he himself made decisions which relate to factual allegations supporting decision and/or where Defendant s alleged mental infirmity is neither related logically nor supported factually in documentary or testimonial evidence at prior hearings under oath. 3. In allowing dismissal of multiple jurors during voir dire, trial counsel was not ineffective for failing to attempt to rehabilitate some or all of jurors dismissed because their responses indicated discomfort in imposing death penalty. 4. Prosecutor s use of terms assassin and executed and comments to jury about unpleasant and repulsive nature of case facts especially in opening and closing were not unnecessarily prejudicial as they did not have unavoidable effect of prejudicing jury. 5. Prosecutor s cross-examination of Defendant and Defendant s mother asking Defendant to reconcile inconsistencies between trial testimony and other trial evidence did not prejudice jury in fixing bias/hostility towards Defendant so as to hinder truth-rendering and objectivity. 6. Use of replica of murder weapon was not improper as Defendant did not specify how such use prejudiced him. 7. Commonwealth s failure to provide Defendant with discovery reports did not violate Brady v. Maryland, where statements and rumors by unnamed persons who may have perpetrated crime did not rise to level of evidence favorable to Defendant such that it constitutes material exculpatory information which prosecution was required to deliver to Defendant. 8. Defendant is not deprived of fair trial (due to ineffective assistance of counsel) because counsel did not present evidence of Defendant s childhood maladies and teenage difficulties with allegedly abusive program for delinquent youth especially where Defendant fails to contend that he himself was abused. 9. Counsel s failure to present evidence of Defendant s head injuries (after flight subsequent to instant crimes) as a mitigating factor to life/death sentencing phase will not rise to level of ineffective assistance of counsel where Defendant proffered no evidence that such injury or other proffered traumatic events detrimentally affected his competence/ability to stand trial or to meaningfully participate at his sentencing. 10. Defendant s attempts to characterize general information such as age of victims as victim impact evidence in sentencing phase will be treated as challenge to propriety of prosecutor s argument which will not rise to prosecutorial misconduct where counsel was permitted to present evidence of mitigating factors to balance evidence of aggravating factors. 11. Photos of deceased victims (eighteen-day-old child and nine-year-old child) introduced in guilt phase of trial were not highly prejudicial so as to violate Defendant s right to fair trial where photos were black and white, somewhat out of focus, and not particularly gruesome, in light of cau-

17 august 15, 2008 Supplement to The Lawyers Journal page 307 tionary instruction by judge to jury where court was satisfied that probative value outweighed potential appeal to emotion and prejudice. 12. Court did not err in refusing to admit childhood picture of Defendant in light of Defendant s failure to explain how such picture was relevant to any mitigating factor asserted by Defendant. 13. Court did not err in failing to instruct jury that, if it imposed life sentence, Defendant would be ineligible for parole unless prosecutor raised issue in sentencing phase that Defendant is prospectively dangerous. 14. Prosecutor s comment in closing that it had duty to protect our fellow citizens viewed in context of preceding remarks about its role in generally protecting society (rather than protecting society from this Defendant) was not a warning of Defendant s future dangerousness to any particular persons. 15. Prosecutor s use of conjunctive and rather than disjunctive or in instructing jury, (namely, using standard jury instructions to charge the jury about aggravating and mitigating circumstances during penalty phase) should be viewed as a whole in determining how to evaluate propriety of instructions in a first degree murder case and was not error. 16. It was not error to instruct jury that its verdict must be unanimous; it was not error to instruct jury that each of them should indicate which mitigating factor, if any, was present; although it was error to instruct jury that it had to be unanimous in determining if Defendant established existence of any specific mitigating circumstance, prosecutor did not so instruct this jury; hence, error argument is meritless. 17. It was not error to allow jury to consider/weigh Defendant s conduct as evidence toward finding of more than one aggravating factor. 18. Defendant has not shown how counsel was ineffective in stipulating to three aggravating circumstances where each was either indisputable fact, statutory provision, or documentable conviction. (Norma Caquatto) Ronald M. Wabby for the Commonwealth. Cristi A. Charpentier for Defendant. No. CC In the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division. MEMORANDUM OPINION Manning, J., March 14, 2008 The Defendant, Gerald Watkins, was found guilty, following a jury trial, of three counts of Criminal Homicide. At the conclusion of the penalty phase, the jury fixed the penalty at death at all three counts. In an appeal to the Pennsylvania Supreme Court, the defendant raised the following claims: I. That the Trial Court erred in denying his Motion to Suppress statements made following his arrest in New York; II. That the trial court erred in failing to conduct proper voir dire of a juror concerning alleged contact between the defendant and a juror and in failing to remove this juror; III. That the Trial Court erred in admitting evidence of uncharged bad acts of the defendant; IV. That counsel was ineffective in failing to object to testimony concerning uncharged bad acts of the defendant and in failing to seek a cautionary instruction from the Court; and V. The Prosecutor made improper remarks in his opening and closing statements to the jury. By Opinion and Order dated June 6, 2003, the Pennsylvania Supreme Court affirmed the judgment of sentence. On February 2, 2005 the Governor of Pennsylvania issued a warrant of execution. On February 10, 2005, a Motion for Appointment of Counsel and for a stay of Execution was filed on the defendant s behalf in the United States District Court for the Western District of Pennsylvania. The Motion was filed by an attorney employed by the Defender Association of Philadelphia, Capital Habeas Corpus Unit. The Commonwealth opposed the Motion, noting that the defendant had not yet exhausted his state ineffective assistance of counsel claims. United States District Court Judge David Cercone granted the stay by Order dated February 28, On August 23, 2005, counsel for the defendant filed a Motion to Dismiss Habeas Corpus Proceedings Without Prejudice in Federal Court. In the Motion, which was unopposed by the Commonwealth, the defendant conceded that he had unexhausted state claims. The Motion was granted on August 24, 2005 and the defendant thereafter filed a Petition in this Court pursuant to the Post Conviction Collateral Relief Act in which he raised twenty-one (21) separate claims. The Commonwealth filed a reply requesting that the Petition be dismissed without a hearing. After a review of the record and the claims raised by the defendant, the Court has determined that the claims are without merit and that they should be dismissed without hearing. The reasons for the dismissal of each distinct claim raised by the defendant are set forth below in the order in which the defendant raised them. The defendant first claims that the inculpatory statements offered against him at trial were the product of a coercive interrogation and trial counsel was ineffective for failing to properly seek their suppression. This claim will be dismissed pursuant to 42 Pa.C.S.A (a). Prior to trial the defendant, through counsel, filed a Motion to Suppress the statements attributed to him by Pittsburgh homicide detective Dennis Logan. A hearing was held and the Motion was denied. Following his conviction, the defendant challenged this Court s denial of this Motion before the Pennsylvania Supreme Court. The Supreme Court affirmed. Accordingly, the issue of the admissibility of the defendant s confession to Detective Logan was previously litigated before the highest court to which the defendant had a right to appeal. In this Petition, the Defendant provides different reasons why the confession should have been suppressed than those that were put forth in support of the Motion presented prior to trial. Defendant cannot, however, avoid the previous litigation bar simply by offering a new theory or claiming a different factual basis in support of a discrete legal claim already litigated. Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005). Here, the defendant is raising the same claim, that his confession was unlawfully obtained, but is offering new factual allegations and legal theories in support of this claim. The facts he is now proffering, however, are directly contradicted by the record of the suppression hearing and the trial. In both, he testified, under oath, that he made no statements to Detective Logan; that they were fabricated by the detec-

18 page 308 Supplement to The Lawyers Journal volume 156 no. 17 tive and that the signature appearing on Detective Logan s notes of the statements were forgeries. He now claims, in his Petition, that he lied at the suppression hearing and at trial because he thought he had a better chance of prevailing on the suppression claim if he lied and denied making the statement at all than if he told what he now claims to be the truth; that he did make the statement attributed to him but did so at the point of a gun. It has long been held that a defendant has an obligation to testify truthfully and cannot seek relief pursuant to the PCRA following his conviction by claiming that he lied at an earlier proceeding. Commonwealth v. Cappelli, 489 A.2d 813, 819 (Pa.Super. 1985); Commonwealth v. Jones, 596 A.2d 885, 888 (Pa.Super. 1991). Although these cases dealt with defendants seeking post conviction relief from pleas of guilty by claiming that they lied when they entered their pleas, the same rationale must apply to testimony by defendants in other circumstances, including testimony at suppression hearings and/or at trial. A PCRA Court should dismiss a claim raised if the record reveals that there is no dispute as to any material facts. Pa. R. Crim. P. 909 (B) (2). Here, because the record from the trial proceedings, including the defendant s own sworn testimony, does not support the claim that he was coerced into making the inculpatory statement, in that he denied making such a statement, the claim must be dismissed. The defendant also attempts to avoid the previous litigation bar by claiming that counsel was ineffective in presenting the evidence in support of this claim and in failing to present evidence of the defendant s alleged mental infirmities. In his Petition, however, he states that he made the decision to lie under oath and deny that he made any statements rather than get into a credibility contest with the detective. (See defendant s Petition 51). He does not claim that counsel advised him to do this or that he relied in any way on counsel s advice to do so. He cannot claim that counsel was ineffective regarding his testimony in support of the Motion to Suppress in light of these representations in the Petition. With regard to the contention that counsel was ineffective for failing to investigate the defendant s alleged mental infirmity and presenting evidence of these alleged infirmities in support of the Suppression Motion, counsel could not have been ineffective in failing to present such evidence for two reasons. First, the defendant chose, according to his Petition, to testify falsely concerning the statements and to deny that he made any statement to Detective Logan. Evidence of the defendant s alleged mental infirmity would not have been relevant to his claim that he did not make the statements. In addition, it is the defendant s obligation in this proceeding to either point to the place in the record where there is factual support for his claim or to offer documents or witness statements establishing a factual basis for his claim. A defendant is not entitled to a hearing based on unsupported and undeveloped claims set forth in a Petition filed under the PCRA. Commonwealth v. Scott, 752 A.2d 871, 877 n. 1(Pa. 2000); Commonwealth v. Aaron-Jones, 811 A.2d 994, 1003 (Pa. 2002). The defendant offered nothing in support of his claimed mental infirmities. There were no reports from mental health experts or witnesses statements from anyone competent to offer an opinion as to the defendant s mental state at the time he gave the statement to Detective Logan. For these reasons, the claim raised in Section I of the defendant s Petition will be dismissed without a hearing. At Section II, the defendant contends that the Court improperly dismissed nine jurors for cause based upon responses they gave during voir dire regarding their ability to impose the death penalty and that trial counsel was ineffective for not attempting to rehabilitate some, if not all, of these jurors. In Commonwealth v. Carson, the Pennsylvania Supreme Court set forth the test for determining when a juror who has expressed reservations over the death penalty may be excused for cause. The Court wrote: Any person may be excluded from a jury who holds views on capital punishment that prevents or substantially impairs that person from adhering to the trial court s instructions on the law. Robinson, 864 A.2d at 48; Commonwealth v. Lark, 698 A.2d 43, 48 (Pa. 1997). A juror s bias need not be proved with unmistakable clarity. Commonwealth v. Morales, 71 A.2d 516, 525 (Pa. 1997). For instance, in Morales, we held that a juror expressed sufficient doubt about his ability to impose the death penalty when he said, I am not certain that I can judge someone fair enough to give them the death penalty. Id. We also found no error in excluding a juror who did not feel comfortable in having to make a decision about someone else s life and who always doubts whether imposing the death penalty is correct. Commonwealth v. Fisher, 681 A.2d 130, 137 (Pa. 1996). 913 A.2d 220, 262 (Pa. 2006). The Supreme Court also stated in Collins that, There is no requirement that trial counsel life qualify jury members and counsel cannot be deemed ineffective for failing to do so. Id. at 262. The Court has reviewed the record from the voir dire and is satisfied that with regard to each of the venire persons identified in the defendant s Petition, their responses during voir dire justified their removal for cause. Moreover, because the challenges for cause were either agreed to by defense counsel or not opposed by him, it was the defendant s burden here to establish, based on the record as it exists or through documents or certified witness statements, that counsel had no reasonable basis for not objecting and that if counsel had objected or tried to rehabilitate those members of the venire who were dismissed, the challenges for cause would have been denied. The defendant did not attach any documents or witness statements supportive of this claim. Accordingly, it is necessary to evaluate the removal of each identified venire person based on the record of the voir dire hearing and the trial. Venire person Barrett was hesitant when asked if he could return a verdict of death if warranted under the law and facts. His equivocal statement that he probably could set aside his personal views and return with a verdict of death if warranted by the law and facts was sufficient to warrant his removal for cause. Even if it was not, the defendant has not supplied anything that would suggest that counsel was ineffective for agreeing to Barrett s excusal from the panel. Because the defendant has not obtained a certified statement from his trial counsel and attached it to his Petition, there is nothing in the record to suggest that counsel did not have a reasonable basis for not objecting to the removal of Barrett for cause. The remaining venire persons all gave unequivocal responses that justified their removal. When asked if her views or opinions toward the imposition of the death penalty would substantially impair her ability to return with a verdict of death if warranted by the facts and law, she responded, Yeah, I think so. (N.T ). She agreed that she did not think that she could fairly consider death as a viable sentence. These comments supported her excusal for cause. Venire person Hall stated the he would be substantially impaired in his ability to sentence someone to death even if such a sentence were warranted by the law. (N.T. 311).

19 august 15, 2008 Supplement to The Lawyers Journal page 309 Venire person Giovannatti stated that she did not have the power to support the death penalty. (N.T ). She said that this was based on her religious conviction. These statements by Hall and Giovannatti were sufficient to excuse these persons for cause. Although the defendant complains that, with respect to Giovannatti, counsel should have tried to rehabilitate her, defendant offers nothing to suggest that she would have altered her religiously founded opposition to the death penalty. Venire person Hucks testified that he did not believe in capital punishment; that his views on that were based his religious beliefs he had held all his life and that he could not envision any circumstances under which he could vote for the death penalty. (N.T ). Similarly, venire person Bednont stated that her feelings about the death penalty would substantially impair her ability to pronounce a sentence of death even if that sentence were justified by the law and the facts. (N.T ). Both were properly removed for cause and counsel was not ineffective for objecting to their removal. Finally, when venire person Sommers was asked if she thought that she would be substantially impaired in returning a sentence of death, she said Yes. (N.T. 658). She agreed that she did not think that she could return a sentence of death. (N.T. 659). Each of the challenged jurors testified that they believed that their personal views on the death penalty would substantially impair their ability to impose that sentence even if it were warranted by the law and the facts presented to them. The statements were sufficient to support the determination of counsel that they should be excused for cause. As they were properly excused, counsel was not ineffective for offering up frivolous opposition to the Commonwealth s challenges to each of the venire persons identified in defendant s Petition. Defense counsel could not be deemed ineffective for failing to attempt to badger the witnesses into providing answers that were different than that which they had already provided under oath. Once these witnesses indicated unequivocally that they believed that their personal views would substantially impair their ability to return a sentence of death, it would not have been fruitful or proper for counsel to try to get these witnesses to change their testimony. The defendant s third claim is that trial counsel was ineffective in failing to object to the Commonwealth s improper exercise of peremptory challenged based upon the race and gender of venire persons. Because the record of jury selection belies this claim and the defendant has not made reference to any other evidence supportive of this claim, it will be denied without a hearing. To establish that the Commonwealth was utilizing its peremptory challenges in a discriminatory manner, it was the defendant s burden to first establish a prima facie case of purposeful discrimination in the exercise of the challenges. Batson v. Kentucky, 476 U.S. 79 (1986). In Commonwealth v. Spotz, 896 A.2d 1191 (Pa. 2006), the Pennsylvania Supreme Court set out exactly what a defendant had to prove to make out a prima facie case of purposeful discrimination: To establish such a prima facie case, the defendant must specifically identify: (1) the gender of all the venire persons in the jury pool; (2) the gender of all venire persons remaining after challenges for cause; (3) the gender of those removed by the prosecution; (4) the gender of the jurors who served; and (5) the gender of jurors acceptable to the Commonwealth who were stricken by the defense. Id. After such a record is established, the trial court must consider the totality of the circumstances to determine whether challenges were used to exclude venire persons on account of their gender. If the trial court finds in the affirmative, it may then require the prosecutor to explain his or her reasons for the challenge. Id. at , 668 A.2d 491; accord Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176, (1993) (claim of race-based discrimination). FN27 To decide whether the totality of the circumstances militates toward a finding that the prosecution used peremptory challenges to exclude women because of their gender, the trial court may conduct an independent review of the record. Aaron Jones I, supra. A finding by the trial court as to an absence of discriminatory intent must be given great deference on appeal. Id. at 520, 668 A.2d 491. At The defendant has not established the gender of all venire persons in the pool; has not established race of all venire persons in the pool; has not established the gender or race of the venire persons who remained after challenges for cause were made and has failed to establish the race or gender of venire persons acceptable to the Commonwealth who were struck by the defense. He has simply set forth the race and gender of those persons struck by the Commonwealth. This is insufficient to establish a prima facie case of purposeful discrimination. Moreover, the record of the jury selection actually contradicts defendant s claim. The transcript reveals that on the first day of jury selection, on a panel of thirty-five (35) jurors, two of the African Americans were interviewed. One of the African Americans, a male, was excused for cause on the basis of hardship while the other African American, a female, was seated as the first juror. Of the final fourteen (14) jurors seated in this matter, eleven (11) were women. These facts belie the claim that the Commonwealth purposely discriminated against potential jurors either on the basis of their race or gender. In his fourth claim, the defendant complains that his death sentence is invalid because the Court failed to make a record of critical proceedings. This claim involves two separates incidents involving jurors. In the first was described by the Court on the record: THE COURT: Let me place on the record what the Court knows at this juncture. From the telephone records of the Allegheny County Jail on Sunday, December 8, at 11:02 a.m., a phone call was made from the Allegheny County Jail to the residential address of juror number one in this case. The collect call was answered by the mother of juror number one who refused to accept the phone call. Juror number one informed the Court s tipstaff of this Monday morning, and the Court and your counsel at my direction, not informing you [appellant] at that time, briefly questioned juror number one about this matter, and I am reasonably satisfied she was unaffected. (N.T. 277). The second involved a juror who, after being selected to serve on the jury, asked to be removed due to a hardship. The Court advised this juror, in a letter dated December 4, 1996, that the Court would not excuse him. All counsel was served with copies of this letter. The defendant complains that because there is no record of either of these incidents, the defendant was deprived of his constitutional right to counsel and to a public trial. With regard to the claim concerning counsel, it is without merit as a matter of law because defendant s coun-

20 page 310 Supplement to The Lawyers Journal volume 156 no. 17 sel was present when the Court made brief inquiry of juror number one and was provided with a copy of the Court s letter to the juror asking to be excused. More importantly, there is a record of both incidents. There is the description by the Court, on record, as to the circumstances surrounding the phone call to juror number one. Defendant has not alleged that the facts are other than as the Court represented them to be on the record as to juror number one. He has not set forth in a certified witness statement from counsel anything that would contradict the Court s description of what happened. As for the other juror, the record includes as an exhibit the letter from the Court to the juror explaining that he could not be excused due to a hardship. Again, the defendant has not set forth any facts, either in the body of his Petition or in exhibits attached to his petition, that suggest that he suffered any prejudice from the Court requiring this juror to fulfill his obligation to serve. Turning to the claim that his right to a public trial was violated, this is absurd. The defendant s entire trial was open to the public. The brief encounter between the Court, counsel and juror number one were described fully and accurately on the record in open court. The letter to the juror seeking to be excused was not part of the trial and did not need to be part of the public record of the trial. Its contents were, however, disclosed to the defendant, through his counsel. Finally, the defendant does not explain how he could possibly have been prejudiced by the Court s handling of either of these matters. It is the defendant s burden, the context of a claim that counsel was ineffective, to establish that he was prejudiced through counsel s action or inaction. He has offered no facts or argument that remotely supports a conclusion that he was prejudiced with regard to either of these incidents. This claim will be dismissed without a hearing. In his fifth claim, the defendant complains that he was the victim of prosecutorial misconduct. He cites to six separate incidents of prosecutorial misconduct. In order to obtain relief for alleged prosecutorial misconduct, a defendant must first demonstrate that the prosecutor s action violated some statutorily or constitutionally protected right. Consistently, the Courts of this Commonwealth have held that prosecutorial misconduct does not occur unless the prosecutor s challenged comments had the unavoidable effect of prejudicing the jury with such animus toward the defendant as to render it incapable of fairly weighing the evidence and arriving at a just verdict. Commonwealth v. Chmiel, 889 A.2d 501, 542 (Pa. 2005); Commonwealth v. Hawkins, 701 A.2d 492, 503 (Pa. 1997), cert. denied, 523 U.S. 1083, 118 S.Ct. 1535, 140 L.Ed.2d 685 (1998). A prosecutor does not engage in misconduct when his statements are based on the evidence or made with oratorical flair. Commonwealth v. Marshall, 633 A.2d 1100, 1110 (Pa. 1993). Additionally, a prosecutor must be permitted to respond to arguments made by the defense. See Hawkins, 701 A.2d at 503; Commonwealth v. Clayton, 532 A.2d 385, 396 (Pa. 1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988). With these rules in mind, the Court will address these in the order in which he identifies them in his Petition. First, he claims that Deputy District Attorney W. Christopher Conrad made impermissible appeals to passion in order to prejudice the jury in his opening statement and closing argument. The defendant complains that Conrad prejudiced the jury by using terms like assassin and executed and that he repeatedly emphasized to the jury how unpleasant and repellent it would be for them to hear the facts of the case. According to the defendant, the prosecutor also improperly put before the jury victim impact evidence when he warned the jury that although they would feel sympathy for the family of the victims, they could not allow that to affect their verdict. Defendant finally complains of the prosecutor s reference in his closing argument to the defendant s reference to the victims as bodies. A prosecutor has wide latitude in making argument to the jury. In Commonwealth v. Zettlemoyer, 454 A.2d 937 (1982), the Pennsylvania Supreme Court set for the test for evaluating a claim that the prosecutors argument went beyond the permissible bounds of advocacy. The primary guideline in assessing a claim of error of this nature is to determine whether the unavoidable effect of the contested comments was to prejudice the jury, forming in their minds fixed bias and hostility towards the accused so as to hinder an objective weighing of the evidence and impede the rendering of a true verdict. In making such a judgment, we must not lose sight of the fact that the trial is an adversary proceeding, Code of Professional Responsibility (Canon 7 E.C ), and the prosecution, like the defense, must be accorded reasonable latitude in fairly presenting its version of the case to the jury. Nevertheless, we do require that the contentions advanced must be confined to the evidence and the legitimate inferences to be drawn therefrom. Deliberate attempts to destroy the objectivity and impartiality of the finder of fact so as to cause the verdict to be a product of the emotion rather than reflective judgment will not be tolerated. The verdict must flow from the respective strengths and weaknesses of the evidence presented and not represent a response to inflammatory pleas for either leniency or vengeance. 500 Pa. at 53, 454 A.2d at 956. [citations omitted]. See also, Commonwealth v. Begley, 780 A.2d 605, 626 (Pa. 2001) and Commonwealth v. Gilbert Jones, 683 A.2d 1181 (Pa. 1996). Applying these principles to the entire argument of the Deputy District Attorney, this Court does not believe that his argument had the unavoidable effect of prejudicing the jury, forming in their mind a fixed bias and hostility towards the defendant so that they could not weigh the evidence objectively and render a true verdict. In both his opening statement and his closing argument, Mr. Conrad s comments were reasonably based upon the evidence presented at trial and the reasonable inferences therefrom, and merely exhibited a degree of oratorical flair, license and passion that was permissible during argument to the jury. Commonwealth v. Chester, 587 A.2d 1367 (Pa. 1991). The shocking and repellent nature of what this defendant did to his girlfriend, her nine-year-old son and his own newborn daughter had more to do with the content of the prosecutor s argument than any attempt intent on his part to unfairly prejudice the defendant. It is difficult for this Court to imagine exactly how a prosecutor can describe how the defendant fired ten shots into his eighteen-day-old daughter, five into the face, head and neck of Charles Kelly and another nine into Beth Ann Anderson without arousing in the jury some passions. The test, however, is whether the comments were so improper as to cause the jurors to be incapable of following their oaths and the instructions of the Court which require that they fairly weigh the evidence and render an appropriate verdict. The comments of the prosecutor clearly did not rise to that level and this portion of this claim will be dismissed. The second part of this claim concerns the prosecutor s cross-examination of the defendant and of the defendant s mother and his use of demonstrative evidence. The test for this claim is the same as for challenges to statements made to the jury; whether the comments prejudice[d] the jury, forming in their minds fixed bias and hostility towards the