Pittsburgh Legal Journal Opinions...PLJ The Pittsburgh Legal Journal is a supplement to the Lawyers Journal, which is published fortnightly by the Allegheny County Bar Association

VOL. 156 NO. 18 august 29 , 2008Supplement to The Lawyers Journal

PITTSBURGH LEGAL JOURNALOPINIONS

allegheny county court of common pleasWilliam Booker and Candice Booker, husband and wife v.County of Allegheny and Greenbriar Investment Co., LLC, O’Reilly, J. ....................................................................................Page 327Right of Redemption after Sheriff ’s Sale—Inconsistent Statutes

Wyatt Incorporated v. Citizens Bank of Pennsylvania and Mellon Bank, N.A., Horgos, J. ......................................................Page 329Alteration & Repair—Attorneys’ Fees—Erection & Construction—Mechanics’ Liens—Notice—Contractor & Subcontractor Payment Act

Michelle Walton and Richard Walton v. Churma Chiropractic Center, P.C., Friedman, J. ......................................................Page 332Agency—Cause of Action—Summary Judgment—Business Activities

Kenneth S. McCarty, Jr., M.D., Ph.D. v. Magee Women’s Hospital, University of Pittsburgh, UPMC Health System,University of Pittsburgh Physicians, Inc. and University of Pittsburgh Medical Center a/k/a UPMC, Wettick, J. ............Page 333Preliminary Objections—Pa. Whistleblower Law—Jury Trial—Medical Care Availability & Reduction of Error Act—Wrongful Discharge

Ada P. DeArmitt and Gerald W. DeArmitt v. New York Life Insurance Co. and Russell F. Bicker, Wettick, J. ......................Page 335Motion for Summary Judgment—Fraud in the Inducement—Consumer Protection Law

Deborah L. Kozel v. David F. Kozel, Hens-Greco, J. ......................................................................................................................Page 336Child Support Modification—Pa. R.C.P. 1910.19—Material and Substantial Change of Circumstances

Commonwealth of Pennsylvania v. Steven Slutzker, Manning, J. ..................................................................................................Page 338Criminal Law—Post Conviction Collateral Relief Act—Double Jeopardy—Recusal—Affidavit of Probable Cause—Prosecutorial Misconduct

Commonwealth of Pennsylvania v. Kenneth Hairston, Manning, J. ............................................................................................Page 341Criminal Law—Jury Instructions—Post Sentence Motions—Ineffective Assistance of Counsel—Admissibility of Prior Bad Acts—Prosecutorial Misconduct—Victim Impact Evidence

Commonwealth of Pennsylvania v. Joseph E. Hill, Manning, J. ................................................................................................Page 346Criminal Law—Post-Sentencing Issues—Post-Conviction Relief Act—Ineffective Assistance of Counsel

Commonwealth of Pennsylvania v. Kenneth Stephen Prysock, Durkin, J. ..................................................................................Page 349Right to Counsel—Suppression

jury verdictsLynne Harris v. Diane Renee Stewart t/d/b/a D. Renee’s Nails, Horgos, J. ..............................................................................Page 350Slip and Fall

Nisha Jackson v. Port Authority of Allegheny County, Scanlon, J. ..............................................................................................Page 350Public Transportation

Christine L. Simmons v. H & M Services, Inc., O’Reilly, J. ..........................................................................................................Page 350Motor Vehicle—Rear-End Collision

Paul Belsterling, as Administrator of the Estate of Ruth Belsterling, and Paula Murray, as Trustee Ad Litem v.Sergio Betancourt, M.D. and Allegheny General Hospital, Colville, J. ......................................................................................Page 350Medical Malpractice

Frankl Electric, Inc. v. Universal Stainless and Alloy Products, O’Brien, J. ............................................................................Page 350Contract

Amanda R. Lorent v. Paul G. Lorincy, D.P.M., Wecht, J. ..............................................................................................................Page 351Medical Malpractice

Frank A. Lowry v. Siesta Motel, Inc., Horgos, J. ............................................................................................................................Page 351Negligence

Tommy Mefford and Cheryl Mefford, his wife v. Natalie Higgins, O’Brien, J. ..........................................................................Page 351Motor Vehicle

Delia Szerbin v. Port Authority of Allegheny County, Lazzara, J. ................................................................................................Page 351Negligence

Paul E. Haines, Executor of the Estate of Margaret M. Haines, Deceased v. Mary Ann Portman, M.D.;University of Pittsburgh Physicians; and University of Pittsburgh Medical Center, Folino, J. ..............................................Page 352Medical Malpractice

Manus O’Donnell, Executor of the Estate of Patricia O’Donnell, Deceased v. Miguel A. Marrero, M.D.,and Miguel A. Marrero, M.D., P.C., Della Vecchia, J. ....................................................................................................................Page 352Medical Malpractice

Alton D. Brown v. Anthony Bovo, Kevin Geppert, Heath Ashmun, and Jon Nordquist, O’Brien, J. ......................................Page 352Miscellaneous

PLJThe Pittsburgh Legal Journal is a supplement to the Lawyers Journal, which is published fortnightly by the Allegheny County Bar Association400 Koppers BuildingPittsburgh, Pennsylvania 15219(412)261-6255www.acba.org©Allegheny County Bar Association 2008Circulation 6,750

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Opinion Editorial VOLUNTEERSMary Ann C. ActonMark R. AlbertsKenneth M. ArgentieriWilliam BarkerShannon F. BarkleyJoseph H. BucciMeg L. BurkardtNorma M. CaquattoRobert A. CrisantiWilliam R. FriedmanKristen M. IagnemmaMargaret P. JoySandra Lewis KitmanPatricia LindauerIngrid M. Lundberg

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family law opinions committeeReid B. Roberts, ChairMark AlbertsChristine GaleMark GreenblattMargaret P. JoyPatricia G. Miller

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jury verdicts volunteersWendy L. Bartsch-Cieslak Mark GreenblattBeth Fischman Janet K. MeubRobert C. Fratto Barbara Atkin Ramsey

august 29 , 2008 page 327Supplement to The Lawyers Journal

William Booker and Candice Booker,husband and wife v.

County of Allegheny andGreenbriar Investment Co., LLC

Right of Redemption after Sheriff ’s Sale—InconsistentStatutes

1. Where statutes are inconsistent as to whether thereexists a right of redemption for non-vacant and non-com-mercial property, the more recent statute will control.

2. Provision of statute adopted in 2004 permittingredemption within nine months after a sheriff ’s sale, whereproperty is neither vacant nor commercial, will be enforced.

3. Since redemption does not call into question the proce-dural steps that led to the sheriff ’s sale, and is therefore notan attempt to go behind the sale, it does not violate the pro-visions of 53 P.S. §7382 stating that after a deed is deliveredfollowing a sheriff ’s sale, the “validity thereof shall not bequestioned for any cause whatsoever.”

(Margaret P. Joy)

Robert B. Stein and Lauren R. Fertelmes for Petitioners.Joseph W. Gramc for County of Allegheny.David S. Bloom for Greenbriar Investment Co., LLC.

No. GD 06-6750. In the Court of Common Pleas of AlleghenyCounty, Pennsylvania, Civil Division.

MEMORANDUM ORDERO’Reilly, J., May 22, 2008—This interesting case presents

the question of how to resolve apparently conflicting Acts ofLegislature involving the right of redemption, if any, afterSheriff Sale on a judgment for delinquent taxes.

Specifically, Petitioners, William Booker and CandiceBooker, his wife (“Booker”) filed a Petition for Rule to ShowCause Why the Sheriff Sale of property owned by them at231 Wainwright Drive in the City of McKeesport should notbe set aside. Said Rule was issued by my colleague theHonorable Paul Lutty on October 24, 2007. The parties there-after took depositions, and the case came before me on April17, 2008, the Return Day for the Rule.

The facts show that Booker owned the property at 231Wainwright Drive, but had never resided in it. Rather, thehome was purchased as a residence for the aged mother anduncle of William Booker. A sister of William Booker,Margaret Rayber (“Rayber”) was to live in the house and actas a caregiver for the two elderly relatives. No rent was paid,or to be paid to Booker, but the occupants, including Rayberwere to pay the taxes and utilities on the property as well assee to its maintenance. The home is a commodious residencein the Haler Heights section of McKeesport, and its assessedmarket value for 2007, according to the Allegheny CountyAssessment Office, is $183,000.

The foregoing arrangement among the Booker familycontinued until the death of both elderly residents.Thereafter, Booker agreed to permit Rayber to continue tolive in the home under the same arrangement as had been inplace while the two other residents were still living.

It appears, however, that in at least 2006, Rayber wasunable to pay all the taxes, but did not tell her brotherWilliam Booker, or her sister-in-law, Candice Booker thatshe could not pay the taxes. Booker was not told by his sisterof this problem until after the property was sold at Sheriff ’sSale, and the buyer at that sale, Greenbrier InvestmentCompany, LLC (“Greenbrier”) sent a letter to Rayber at 231

Wainwright advising that it had bought the property. The let-ter from Greenbrier was dated September 20, 2007. (RayberDepo. Exhibit 6). The Petition for Rule involved herein wasfiled October 24, 2007. The record further shows that theSheriff ’s Deed to Greenbrier for this property was acknowl-edged by the Sheriff on August 20, 2007, and recordedOctober 24, 2007.

Depositions pursuit to the Rule, were taken of theBookers and Rayber, and filed of record.

ANALYSISI conducted argument on April 17, 2008, the Return day,

and received the entire file including deposition transcripts.At argument, Booker raised two issues: (1) the judgment onwhich the sale was based was not properly served, and is anullity; and (2) the provisions of 53 P.S. §7293 provide anabsolute right of redemption within 9 months of the Sheriff ’sDeed provided the property is neither vacant nor commer-cial. Greenbrier countered by citing to 53 P.S. §7282, whichcontains language that there is no right of redemption at allavailable to Booker. It also pointed out the Sheriffs return ofservice shows personal service on the person in charge at231 Wainwright Drive. The applicable law, in pertinent part,is as follows:

§7282 Counties of first class; recovery of judgment; sale freefrom claims:

In addition to the remedy prescribed in sectionstwenty-eight and thirty-one of this act, [not hererelevant] whenever a claimant in any county of thefirst class has obtained a judgment upon its tax ormunicipal claim, it may file its petition in the courtin which the proceeding is pending, setting forththe facts necessary to show the right to sell, …

If, upon a hearing, thereafter the court is satisfiedthat service has been made of said rule upon allinterested parties in accordance with section 39.2[not relevant here] and that the facts stated in thepetition be true, it shall order and decree that saidproperty be sold at a subsequent sheriff ’s sale at atime to be fixed thereafter by the claimant, at leastone year after the date of the decree,…

In addition to the remedy prescribed in section 28,[not here relevant] whenever a municipality in anycounty of the second class has obtained a judgmenton a tax or municipal claim, it may file its petitionin the court in which the proceeding is pending.The petition shall set forth the facts necessary toshow the right to sell;…

If, upon a hearing thereafter, the court is satisfiedthat proper service has been made of said rule on allinterested parties in accordance with section 39.2and that the facts stated in the petition are true, itshall order and decree that the property be sold at asubsequent sheriff ’s sale at a time fixed by theclaimant, clear of all claims, liens, mortgages,groundrents, charges and estates, to the highest bid-der at such sale, and the proceeds realized there-from shall be distributed in accordance with the pri-ority of such claims, liens, mortgages, groundrents,charges and estates, and the purchaser shall takeand forever thereafter have an absolute title to theproperty sold, free and discharged of all tax andmunicipal claims, liens, mortgages, groundrents,charges and estates of whatsoever kind, and notthereafter subject to any right of redemption….

page 328 volume 156 no. 18Supplement to The Lawyers Journal

In counties of the second class, upon return of thewrit upon which the sale was made and if no peti-tion to set aside the sale is pending, the prothono-tary shall satisfy all tax claims and municipalclaims divested by the judicial sale….

Upon the delivery by the sheriff of a deed for anyproperty sold under the provisions of this section,the judgment upon which such sale was had shallthereupon and forever thereafter be final and con-clusive, and the validity thereof shall not be ques-tioned for any cause whatsoever. [EMPHASISSUPPLIED]

§7293 Redemption

(a) The owner of any property sold under a taxor municipal claim, or his assignees, or anyparty whose lien or estate has been dischargedthereby, may, except as provided in subsection(c) of this section, redeem the same at any timewithin nine months from the date of theacknowledgment of the sheriff ’s deed therefor,upon payment of the amount bid at such sale;

Counsel for Greenbrier did an excellent job in research-ing the applicable law, and finding that the statute relied onby Booker was apparently repealed in 1942, and, thus, thereis no right of redemption. I do not believe however, thatCounsel took his research far enough. My own researchshows redemption to still be available.

Specifically, the omnibus Act of Legislature attempting tocodify and set forth a comprehensive plan for collectingdelinquent liens and taxes was passed on May 16, 1923, andsigned by Governor Gifford Pinchot. That Act of Assemblyconsisted of 41 sections, and ran to 20 pages. (herein the“Act”). Over the years, that Act was amended several times,and it is the interplay between and among theseAmendments that has created the dispute herein.

In Purdon’s Consolidated Statute Annotated, a servicepublished by the West Publishing Company, the Acts ofAssembly are categorized, edited and annotated. This is aservice, and a research tool learned in law school, whichremains invaluable.

The Act involved herein appears in Volume 53 ofPurdon’s, Sections 7101 through 7194. Over the years it hasbeen amended several times, including amendments thataddress this issue of redemption. I set forth those instancesbelow:

1. As aptly noted by Greenbrier’s counsel, the orig-inal Act, at Section 32, provided for redemptionwithin one year from the date of the acknowledg-ment of the deed by the Sheriff. (Exhibit “A” toGreenbrier Brief). In the immediately precedingSection, (Section 31), however, the last two para-graphs thereof, it references “…the right to redeemas provided by law,” but also provides that once thedeed is delivered it is conclusive as to all matterswhich could have been raised as a defense.

2. Counsel was likewise diligent in unearthing theAct of May 22, 1945, Act 342 of 1945, and therepresents Section 31.1, which addresses the right ofa claimant who possesses a judgment upon its taxor municipal claim; and which eliminates the rightof redemption. Further, it has a Section 2 thatrepeals the aforesaid Section 32 (the one year rightof redemption) in so far as inconsistent with this

amendment. However, this Amendment was onlyapplicable in counties of the first class(Philadelphia). Thus, I do not believe this Section31.1 repealed anything applicable to AlleghenyCounty because retaining the right to redemptionin Allegheny County is not inconsistent with arepealer for Philadelphia alone.

3. Our inquiry does not stop there, however,because the current verbiage in the Act on whichGreenbrier relies, and which addresses counties ofthe second class, even though the title says countiesof the first class, says there is no right of redemp-tion. However, the Act, when passed in 1923 did notdifferentiate between 1st and 2nd class counties.Our inquiry then is how did the aforesaid clause getinto the Act and when? Pursuit of this questionshows a dynamic within our legislature over theright of redemption.

4. In 1986, Section 32(d) of the Act was amended toprovide for redemption within 3 months from theacknowledgment of the deed by the Sheriff. (Act113 of 1986).

5. Then in 1990, the language involved herein got inas Section 32(a) to the Act and provided forredemption within 1 year, but provided for noredemption in counties of the First Class. See 32(c).

6. In 1992, by Act 135, the Act was again amendedto provide that in counties of the second class afterreturn of the writ upon which the sale was madeand upon the expiration of the statutory right ofredemption, the prothonotary shall satisfy all taxclaims and municipal claims divested by the judi-cial sale. It further provides in Section 31.1, theexact language relied on by Greenbrier here.

7. Finally, the Act was again amended in 2004, Act83 whereby a Section 32 was added to provide forredemption within 9 months provided the propertyis neither vacant nor commercial, the exact lan-guage relied on by Booker.

The property herein was at all times inhabited byBookers’ relative, who was not paying rent, so in my judg-ment it falls within the scope of the above redemptionstatute. As to the apparent conflict between the 2003 and2004 amendment, the more recent enactment, which has nolimitation on the right of redemption, is controlling.Accordingly, I will make the Rule Absolute, and permitBooker to redeem the property subject to the conditionsspecified in Section 7293.

As to the claim of defective service, I am not persuaded,and the language in Section 7282 provides that upon deliveryof the deed (which has happened here) the judgment uponwhich the sale was made is conclusive, and the validitythereof shall not be questioned for any reason. Thus, I do notbelieve the issue raised about service of the Rule or theComplaint is valid, and I grant no relief on that point.

Counsel for Greenbrier, in his brief at page 5, 2d fullparagraph, alludes to Section 7281 as the section to whichSection 7293 (the right of redemption) applies, specificallyciting to subsection (b) thereof.

After analyzing Section 7281, I find nothing in it thatvaries significantly from Section 7282 in terms of how a saleis finally concluded. Given that Section 7293 uses the all-encompassing term “…any property sold under a tax ormunicipal claim,” it definitely includes this house in


McKeesport. Therefore, Booker, who has complied with allother conditions of Section 7293, must be permitted toredeem this property.

I would also observe that the language in Section 7382making the sale conclusive as to all defenses does not impactSection 7393. The conclusiveness of a judgment vel non goesto whether the sale was legally correct and all necessary pre-sale steps were correct. If not, the sale and/or the judgmentmay be attacked. However, in the interest of finality, thisparticular Act makes it extremely difficult, if not impossible,to go behind the judgment. Hence, the last sentence ofSection 7382.

Redemption, however, is not a going behind the judgmentor otherwise calling into question the procedural steps thatled to the sale. Rather, redemption is a species of sovereignlargesse developed out of a societal judgment, and our fun-damental high regard for realty, that people ought to be ableto recapture their homes, even if sold, if they reimburse allthe costs incurred.

The redemption statute reads that he who redeems mustpay “…the amount bid at sale; the cost of drawing, acknowl-edging, and recording the sheriff ’s deed; the amount of alltaxes and municipal claims, whether or not entered as liens,if actually paid; …the insurance upon the property and othercharges and necessary expenses of the property, actuallypaid, less rents or other income therefrom, and a sum equalto interest at the rate of ten percent per annum thereon, fromthe time of each such payments.”

My Order herein permits redemption, and I trust that theparties can work out the proper payment. If a problemshould arise, I will decide.

As noted, the Rule entered on October 23, 2007 is madeabsolute and the Petition to Redeem filed by Booker isGRANTED. So ORDERED.

BY THE COURT:/s/ O’Reilly, J.

Dated: May 22, 2008

Wyatt Incorporated v.Citizens Bank of Pennsylvania and

Mellon Bank, N.A.Alteration and Repair—Attorneys’ Fees—Erection andConstruction—Mechanics’ Liens—Notice—Contractor andSubcontractor Payment Act

1. Under the Mechanics’ Lien Law, a subcontractor isrequired to provide notice prior to filing a claim for unpaidlabor or materials with the type of notice depending on thecharacter of the work performed.

2. Erection and construction work does not require a pre-liminary notice but does require formal written notice of anintention to file a mechanics’ lien claim at least 30 days priorto filing such a claim.

3. Alteration and repair work does require a preliminarynotice by each Plaintiff prior to completing its work on theproject.

4. The Court found that the project at issue was erectionand construction under the Mechanics’ Lien Law so no pre-liminary notice was required, and Plaintiffs were entitled torecover the full amount of their claims.

5. The Court found that the extensive demolition and con-struction work performed by the Plaintiffs constituted anadaptation of an existing improvement which rendered thebuilding fit for a new use and effected a material change inthe interior of the structure.

6. The work performed by the Plaintiffs was of such apermanent character that it would pass as part of the free-hold estate.

7. Citizens’ status was an “owner” rather than a contrac-tor while the Plaintiffs were subcontractors.

8. The Court cannot apply the terms of the Contractor andSubcontractor Payment Act to the claims for attorneys’ fees,penalties and interest sought by the subcontractor Plaintiffsagainst the owner with whom the subcontractors had no con-tractual relationship.

(Carol Sikov Gross)

Jeffrey P. Brahan for Plaintiff.Nicholas Deenis, Eric M. Hurwitz, and Joshua R. Lorenz forDefendants.

No. GD 03-9149. In the Court of Common Pleas of AlleghenyCounty, Pennsylvania, Civil Division.

OPINIONHorgos, J., May 27, 2008—The Plaintiffs in this action,

Wyatt Incorporated, Lighthouse Electric Company,Apostolos Group, Inc., Mendel Steel and Ornamental IronCompany and James E. Huckestein, Inc., are contractorswho filed mechanics’ lien claims against Citizens Bank ofPennsylvania (Citizens) and Mellon Bank, N.A. (Mellon).The five separate actions were consolidated by Order ofCourt entered August 22, 2003. After Plaintiffs filedMechanics’ Lien Complaints, the actions were consolidatedfor trial by Order dated January 11, 2006.

Following a non-jury trial, this Court entered a Verdict onOctober 4, 2006 in favor of all the Plaintiffs on their mechan-ics’ lien claims and against Defendant, Citizens, as follows:

Lighthouse Electric Company $ 111,680.01Wyatt Incorporated 83,779.83Apostolos Group, Inc. 41,470.50Mendel Steel and Ornamental

Iron Company 66,846.98James E. Huckestein, Inc. 97,651.43

(Wyatt Incorporated v. Citizens Bank of Pennsylvania andMellon Bank, N.A., GD03-9486, Non-Jury Verdict, October 4,2006). The Court also filed an Opinion on that same date set-ting forth the basis for its Non-Jury Verdict.

All of the parties filed Motions for Post-Trial Relief.Following the submission of briefs by the parties and oralargument, the Court entered an Order of Court onSeptember 17, 2007 denying Citizens’ Motion for Post-TrialRelief and granting the Motions for Post-Trial Relief filed bythe five Plaintiffs to the extent that they requested the awardof interest on their claims and the Non-Jury Verdict wasaccordingly amended to add interest from the dates onwhich the mechanics’ liens were filed. The Motions for Post-Trial Relief as to Plaintiffs’ other requests for relief weredenied. The parties’ appeals to the Pennsylvania SuperiorCourt followed.

The cause of action arose from work performed at ThreeMellon Bank Center in Pittsburgh, Pennsylvania, a 41-storyoffice building built in the late 1940’s. Mellon Bank is theowner of the premises and entered into a ten-year lease with


Citizens for nine full floors as well as a portion of the seven-teenth floor and the basement consisting of approximately206,000 square feet.

Prior to this time, Citizens did not have a presence inWestern Pennsylvania. Citizens sought to expand its bankingoperations into Western Pennsylvania and leased the spaceat Three Mellon Bank Center in order to perform bankingfunctions and to construct a regional headquarters, includ-ing executive offices.

Citizens retained Carlson Implementation Associates,Inc. (Carlson) as the construction company responsible forthe design and remodeling of the existing space at the prem-ises for Citizens. Carlson was the only construction companyinterviewed by Citizens and the job was not put out for com-petitive bids.

Carlson initially submitted a Guaranteed Maximum Price(GMP) proposal to Citizens which set the maximum price ofconstruction at approximately $12 million. Under the termsof the proposal, Carlson was to be “at risk” or would incur allcosts of performing the Project even if the total costs exceed-ed the adjusted contract sum.

Although the form contract was submitted by Carlson, itwas never signed nor was any other written agreementbetween Carlson and Citizens ever executed. Carlson sub-mitted a number of change orders to Citizens that increasedthe GMP by approximately $2 million.

The five Plaintiffs herein entered into agreements withCarlson to perform work on the premises. The subject build-ing is a steel structure with an outer skin and core areaswhich are structural areas in the building which cannot betaken down without causing the collapse of the entire build-ing. The space on each floor was gutted with the exception ofthe core.

On January 2, 2003, Citizens released final payment forthe Project to Carlson, although the work of Plaintiffs hadnot been completed at the time. Citizens and Carlson did notperform the final cost analysis which had been contemplat-ed under the proposed GMP contract. Citizens had neverrequested Carlson to post a bond to protect against potentialliens and did not exercise any of the rights available underthe unsigned contract to protect against claims of unpaidcontractors or suppliers. Accordingly, the five Plaintiffsherein filed mechanics’ lien claims.

Carlson filed for bankruptcy on March 12, 2003 in theUnited States Bankruptcy Court for the District ofMassachusetts at Case No. 03-12033. Some of the Plaintiffsreceived distributions from the Carlson bankruptcy, butnone have been paid in full.

All parties acknowledge that partial payments were madeto Plaintiffs by Carlson in varying amounts. There is no indi-cation on the record that Citizens ever expressed any dissat-isfaction with the work performed by Plaintiffs. There is noevidence that any of the five Plaintiffs have ever receivedthe final payments due them for work and materials. Citizensdefended the action by arguing that: (1) the Project consti-tuted “alterations and repairs” under the Mechanics’ LienLaw, 49 P.S. Section 1201(11); and (2) the notices requiredunder the Mechanics’ Lien Law in such circumstances werenot provided by Plaintiffs.

Under the Mechanics’ Lien Law, a subcontractor isrequired to provide notice prior to filing a claim for unpaidlabor or materials. 49 P.S. Section 1501. The type of noticerequired depends upon the character of the work performedas defined in the Mechanics’ Lien Law. If the work meets thedefinition of “erection and construction” contained in theAct, no preliminary notice is required from a subcontractor,but a formal written notice of its intention to file a mechan-ics’ lien claim must be made at least 30 days prior to filing

such a claim. 49 P.S. Section 1501(b). If the work is deter-mined to be “alteration and repair” under the Mechanics’Lien Law, then preliminary notice must be given by eachPlaintiff prior to completing its work on the Project. 43 P.S.Section 1501(a).

Plaintiffs argued that the Project was “construction anderection” under the Mechanics’ Lien Law. At trial and in itsMotion for Post-Trial Relief, Citizens argued that the workwas merely “alteration and repair” and that Plaintiffs failedto provide the preliminary notice required under 43 P.S.Section 1501(a). For the reasons set forth herein, this Courtfound that the Project at issue was erection and constructionunder the Mechanics’ Lien Law, 49 P.S. Section 1201(10) andthat Plaintiffs were not required to provide preliminarynotice of their liens and were entitled to recover the fullamount of their claims.

In its Statement of Matters Complained of on Appeal,Citizens again argues that the Court erred in finding that thework performed by Plaintiffs at the premises was “erectionand construction” and not “alterations and repairs.” TheMechanics’ Lien Law provides the following definitions forthe terms at issue:

(10) “Erection and construction” means the erec-tion and construction of a new improvement or of asubstantial addition to an existing improvement orany adaptation of an existing improvement render-ing the same fit for a new or distinct use and effect-ing a material change in the interior or exteriorthereof.

(11) “Alteration and repair” means any alterationor repair of an existing improvement which doesnot constitute erection or construction as definedherein.

49 P.S. Section 1201.

Thus, in order to qualify as erection and construction, theProject must be one of the following:

(1) a new improvement; or

(2) a substantial addition to an existing improve-ment; or

(3) any adaptation of an existing improvement ren-dering the same

(a) fit for a new or distinct use and

(b) effecting a material change in the interior orexterior thereof.

Based on the evidence at trial, the Court finds that theextensive demolition and construction work performed byPlaintiffs constituted an adaptation of an existing improve-ment which rendered the building fit for a new use andeffected a material change in the interior of the structure.

The total size of the Project was approximately 206,000square feet with a total cost of approximately $14 million,including the change orders. (Tr. 202, 481). Carlson’s propos-al to Citizens Bank described the work to be done as build-ing demolition, cast in place concrete, masonry work, metalwork, wood and plastic installation, thermal and moistureprotection, new doors and windows, finishes, specialties, fireprotection systems, plumbing, heating, ventilation and airconditioning, electrical, data and telecommunications andarchitectural services. (Plaintiffs’ Exhibit 26). DuringPlaintiff Wyatt’s demolition work, the leased space wasessentially gutted leaving only portions in the core of thebuilding remaining. (Tr. 223, 287). More of the core portionsof the building could not have been demolished without com-


promising the structural integrity of the building. (Tr. 288).The total area of construction was a “shell” or “empty space”with concrete floors and exposed columns; the exterior wallswere stripped to the fireproofing and the bathrooms wereremoved. (Tr. 356, 440).

The City of Pittsburgh building permit issued for theProject indicated that the Project was new construction, asdid the contracts entered into by Plaintiffs with Carlson. (Tr.88, 120-121, 342, 360; Plaintiffs’ Exhibits 24, 44, 61). ThePricing Proposal from Carlson to Citizens generated inDecember, 2001 referred to a series of drawings entitled“New Construction Plan” for each of the nine floors to bedemolished and reconstructed. (Tr. 88).

The cost of the Project, the express references to thework performed as new construction, the type of work per-formed and the purpose of the Project indicate that theProject was the adaptation of an existing improvement to anew use. Citizens was building its regional headquarters inWestern Pennsylvania and changed the building from itsprior use accordingly. The premises had not been used forthis purpose and the Project was designed to put the premis-es to a new and distinct use as Citizens’ new regional head-quarters.

Citizens relies on City Lighting Products Co. v. TheCarnegie Institute, 816 A.2d 1196 (Pa.Super. 2003), wherethe Pennsylvania Superior Court held that the constructionof a sign on top of the Carnegie Science Center was not “con-struction and erection.” The Court held that work constitutesalterations and repairs where the work was not “part of acontinuous plan to erect a structure” but rather was “analteration of the presently existing structure.” Id. 816 A.2d at1198. The Court ruled that the Science Center was a preex-isting structure and that the sign was not part of a continu-ous plan to erect a structure but was merely an alteration ofa presently existing building. Id. at 1199. The Court consid-ered whether the sign was “of a permanent character thatwould pass as part of the freehold estate” and concluded thatthe sign could be easily removed from the property by a sub-sequent owner and concluded that it was not erection andconstruction as defined in the Mechanics’ Lien Law. Id. at1199-1200.

The scope of the work for Citizens’ new regional head-quarters was far more extensive and permanent than theelectrical work and materials for the sign described in CityLighting. Unlike the work in City Lighting, the work per-formed by Plaintiffs was of such a permanent character thatit would pass as part of the freehold estate. Clearly, it wasmore basic to the structure and permanent than a sign whichcould be removed by a subsequent owner as was the case inCity Lighting. Thus, while the sign was not erection and con-struction, the Project herein described was construction anderection as defined in the Mechanics’ Lien Law.

Citizens primarily relies on Wentzel-Applewood JointVenture v. 801 Market Street Associates, L.P., 878 A.2d 889(Pa.Super. 2005). In Wentzel, a single subcontractor, Wentzel-Applewood, filed a mechanics’ lien claim against the subjectproperty. The Superior Court explained the nature of thework involved: “to provide and install the drywall, studs,doors, windows, ceilings and millwork required in buildingthe item processing center.” Id. at 891. This is the full extentof the work considered in Wentzel and is not work identicalin scope to that at Three Mellon as is asserted by Citizens.

In Wentzel, the subcontractor performed no demolition,electrical, structural steel, fireproofing, plumbing or HVACwork whatsoever. The work performed was not nearly asextensive and character changing as the work performed atThree Mellon. The magnitude and type of work performedon the within Project clearly distinguishes it from the work

in Wentzel. Nowhere in the Wentzel-Applewood Opinion doesthe Court refer or set forth any detail as to a new or distinctuse to be put to the premises in question. Here, Citizens hasacknowledged that it was seeking to establish a regionalheadquarters in Western Pennsylvania and that many of thechanges involved in the Project were needed for this reason.In fact, the Project involved an unusually high number ofchange orders as those who were about to become occupantswere frequently consulted as to specific plans and uses fortheir space. (Tr. 479). This aspect of a “distinct” use is notfound in the Wentzel-Applewood Opinion.

Representatives of the Plaintiffs who testified at trialemphatically stated that the work on the Project was unques-tionably “new construction” as that term is used throughoutthe industry. (Tr. 86-88, Plaintiffs’ Exhibit 24; Tr. 476-77). Asthe President of Plaintiff Lighthouse Electric testified: “youhad the feeling that you were in a building that was underconstruction.” (Tr. 97).

The extensive amount of work performed by Plaintiffs atThree Mellon makes the within matter more similar toWendt & Sons v. New Hedstrom Corp., 858 A.2d 631(Pa.Super. 2004). In Wendt, the Court held that the installa-tion of a plastic injection machine in an existing plant was animprovement and was “erection and construction” under theMechanics’ Lien Law. The Court explained that the improve-ment at issue was erection and construction because Wendt“dismantled, transported and erected” the injection machinein New Hedstrom’s plant, “the foundation for which had tobe reinforced to accommodate the weight of the equipment.”Id. at 635.

For the foregoing reasons, it was not error for this Courtto find that the Project was erection and construction underthe Mechanics’ Lien Law, 49 P.S. Section 1201(10). The Courtproperly found that Plaintiffs were not required to providepreliminary notice of their liens and were entitled to recov-er the full amount of their mechanics’ lien claims andCitizens’ Motion for Post-Trial Relief was properly denied.

The Plaintiffs have also filed appeals to the PennsylvaniaSuperior Court and in their Statements of MattersComplained of on Appeal aver that the Court erred in deny-ing their claims for attorneys’ fees, penalties and interestpursuant to the Contractor and Subcontractor Payment Act,73 P.S. Section 501 et seq. (the Act).

Section 504 of the Act provides:

Performance by contractor or subcontractor

Performance by a contractor or a subcontractor inaccordance with the provisions of a contract shallentitle the contractor or subcontractor to paymentfrom the party with whom the contractor or sub-contractor has contracted. 73 P.S. Section 504.

Section 505 of the Act addresses the owner’s paymentobligations to a contractor and the contractor’s obligations tothe subcontractor. Section 505 states in relevant part:

Owner’s payment obligations

(a) Construction contract—the owner shall pay thecontractor strictly in accordance with the terms ofthe construction contract.

73 P.S. Section 505(a).

Section 507 of the Act applies specifically to paymentobligations to a subcontractor and provides:

Contractors and subcontractors payment obliga-tions

(a) Entitlement to payment—Performance by a


subcontractor in accordance with the provisions ofthe contract shall entitle the subcontractor to pay-ment from the party with whom the subcontractorhas contracted.

73 P.S. Section 507(a).

The Act defines an “owner” as “a person who has aninterest in the real property that is improved and whoordered the improvement to be made….” 73 P.S. Section 502.A “contractor” is defined as “a person authorized or engagedby an owner to improve real property.” Id. A “subcontractor”is “a person who has contracted to furnish labor or materialsto, or has performed labor for, a contractor or another sub-contractor in connection with a contract to improve realproperty.” Id.

Here, Citizens’ status is defined by the Act as an “owner”rather than a contractor. Carlson was the contractor and thePlaintiffs were subcontractors. The provisions of the Act donot impose penalties upon an owner for failure to pay a sub-contractor, even where the subcontractor has a validmechanic’s lien claim against the owner. None of thePlaintiffs has relied on any Pennsylvania appellate courtcases to support the application of the Act to the within facts.In the absence of any precedent or reasonable statutoryinterpretation that applies the Act to an action by subcon-tractors against the owner of the improved property, thisCourt cannot apply the terms of the Act to include a subcon-tractor’s action against the owner with whom the subcon-tractor had no contractual relationship.

For all of the foregoing reasons, the Court properlyentered the Non-Jury Verdict in the amounts due under themechanics’ lien claims plus interest from the date on whichthe mechanics’ liens were filed.

BY THE COURT:/s/Horgos, J.

Michelle Walton and Richard Walton v.Churma Chiropractic Center, P.C.

Agency—Cause of Action—Summary Judgment—BusinessActivities

1. Plaintiffs cannot prevail on their claim based onagency principles because they have not alleged negligenceby an agent, servant or employee of the Center other thanthe dismissed Defendant.

2. Plaintiffs have not sought to amend their Complaint toidentify the person who did treat Plaintiff wife, which is fatalto Plaintiffs’ claim.

3. The Complaint must at least identify the negligentemployee, by name if known, or by job description or someother means.

(Carol Sikov Gross)

Matthew R. Wimer, Jamie K. Zurasky, and Deborah L.Iannamorelli for Plaintiffs.William G. Merchant and Hilary W. Taylor for Defendant.

No. G.D. 04-23468. In the Court of Common Pleas ofAllegheny County, Pennsylvania, Civil Division.

MEMORANDUM IN SUPPORT OF ORDERFriedman, J., June 10, 2008—Defendant has filed a

Motion for Summary Judgment which seems more in the

nature of a Motion for Judgment on the Pleadings.Plaintiffs filed a brief in opposition to Defendant’s Motion

but did not send a copy to our chambers and inadvertentlydid not attend the scheduled argument. As a result, the Courttook the matter under advisement in order to obtain a copyof Plaintiffs’ brief from the website of the Department ofCourt Records for its review.

After a review of the Motion, the pleadings and the argu-ments of counsel, the Court concludes that Defendant’sMotion must be granted, based solely on the pleadings.1

The pleadings include Plaintiffs’ Complaint, which isbased totally on the conduct of Dr. Stephen Churma (here-inafter, “Stephen”), who was originally also a namedDefendant in this case. That Complaint was filed onDecember 3, 2004. On April 15, 2005, Defendant ChurmaChiropractic Center, P.C. (hereinafter, “the Center”) filed itsAnswer and New Matter in which it denied that Stephen wasits employee at the times in question. Stephen was dismissedas a defendant by Order of the Honorable R. Stanton Wettick,Jr., also of this Court.

On November 2, 2007, a second Answer and New Matterto the same original Complaint was filed on behalf of theCenter by a different law firm. There is no explanation ofrecord for the second filing and there has been no motionfiled as of this date to strike one version or the other. The gistof both versions of the Center’s Answers and New Matter isthat Stephen was retired and had never treated Plaintiffwife, the party who suffered physical injury.

The first New Matter raises only the bar of the statute oflimitations. The second New Matter raises that and an objec-tion that “Plaintiffs’ claims are barred in whole or in part bytheir failure to name as a Party Defendant a doctor of chiro-practic who allegedly provided professional care to the wifePlaintiff.”

Plaintiffs filed a Reply to both New Matters, stating thatthe case was timely filed and, to the second New Matter, that“Plaintiffs aver that they stated a cause of action against thecorporate Defendant for the actions of their [sic] agents, ser-vants and employees.”

Defendant’s Motion for Summary Judgment is based onthe contention that Plaintiffs cannot meet their burden ofproof against the Center because Plaintiffs failed to “pleadand prove a cause of action against a servant of the Center.”Defendant’s Brief, p. 9, emphasis added. In support of thisposition, Defendant cites a well-settled principle that “amaster cannot be held liable unless there is a cause of actionagainst the servant.”

Defendant also points out, correctly, that no claim of cor-porate negligence has been pled and that Plaintiffs’ soleclaim against it is based on vicarious liability.

The penultimate paragraph of Defendant’s Brief statesthe possible defect in Plaintiffs’ case that the Court findsmost compelling: “Plaintiffs cannot prevail on their claimagainst the center based on agency principles [vicarious lia-bility], because they have not alleged negligence by anyagent, servant or employee of the Center other than [the]dismissed Defendant [Stephen].”

Plaintiffs have not sought to amend their Complaint toidentify the person who did treat Plaintiff wife. The Courtconcludes that this is fatal to Plaintiffs’ claim.

In Defendant’s first Answer and New Matter, ¶4, it iden-tifies “William Churma, D.C.” as the doctor who “was theonly chiropractor employed by the [Center] at all timesmaterial hereto.” It follows that William Churma, D.C. (here-inafter, “William”) is the person whose name must be insert-ed where Stephen’s had been. Yet Plaintiffs did not seekleave to amend to make that correction.

Even if we assume, for purposes of argument only, that


Plaintiffs are correct in maintaining that the Center’s negli-gent employee does not actually need to be made a defen-dant, the Complaint itself must at least identify that negli-gent employee, by name if known, or by job description orsome other means. Here, Stephen is out of the case both as adefendant and as the allegedly negligent employee of theCenter.

The Court concludes it must enter an order granting notsummary judgment but judgment on the pleadings in favorof Defendant and against Plaintiffs.

BY THE COURT:/s/Friedman, J.

Dated: June 10, 2008

ORDER OF COURTAND NOW, to-wit, this 10th day of June 2008, it is hereby

ORDERED that Judgment on the Pleadings is entered infavor of Defendant and against Plaintiffs for the reasons setforth in the accompanying Memorandum in Support ofOrder. The captioned action is DISMISSED with prejudice.

BY THE COURT:/s/Friedman, J.

1 Plaintiffs attached Defendant’s Response to Request forAdmission to their Brief in Opposition to Defendant’s Motionfor Summary Judgment. This suggests that discovery has atleast begun, but the extent of discovery is unknown.

Kenneth S. McCarty, Jr., M.D., Ph.D. v.Magee Women’s Hospital, University of

Pittsburgh, UPMC Health System,University of Pittsburgh Physicians, Inc.

and University of Pittsburgh MedicalCenter a/k/a UPMC

Preliminary Objections—Pennsylvania Whistleblower Law—Jury Trial—Medical Care Availability and Reduction ofError Act—Wrongful Discharge

1. Pennsylvania law recognizes wrongful dischargeclaims based on the public policy exception to the at-willemployment doctrine, and it applies to all employees includ-ing public employees.

2. The Whistleblower Law applies only to persons per-forming services for a public body.

3. The Whistleblower Law does not replace or narrow thescope of causes of action based on the public policy excep-tion, and, if applicable, an employee may pursue both claims.

4. A common law wrongful discharge cause of actionsounds in contract and/or tort and these causes of action canbe tried by a jury. Consequently, plaintiff is entitled to havethe claims he raises tried by a jury.

(Linda A. Michler)

John A. Caputo, Robert C. Daniels, and H. Yale Gutnick forPlaintiff.William Pietragallo, II, Paul K. Vey, Martha S. Helmreichand Alfred S. Pelaez for Magee Women’s Hospital, UPMCHealth System, University of Pittsburgh Physicians, Inc.,and University of Pittsburgh Medical Center.

Daniel H. Shapira, Bernard D. Marcus, and James S.Larrimer for University of Pittsburgh.

No. GD 03-017591. In the Court of Common Pleas ofAllegheny County, Pennsylvania, Civil Division.

OPINION AND ORDER OF COURTWettick, J., June 12, 2008—Plaintiff, with leave of court,

added a count to its amended complaint (Count XI) alleginga “Violation of the Pennsylvania Common Law for WrongfulDischarge.”

The amended complaint to which this count was addedincluded a count (Count VII) for violations of thePennsylvania Whistle Blower Law (43 P.S. §1422 et seq.) andthe Medical Care Availability and Reduction of Error Act (40P.S. §1303.101 et seq.).1

New Count XI includes a demand for a jury trial.Defendants’ preliminary objection seeking to strike thisdemand for a jury trial is the subject of this Opinion andOrder of Court.2

I.In support of their preliminary objection, defendants

argue that there is no right to a jury trial for Whistleblowerclaims. Plaintiff (who is not seeking a jury trial for hisWhistleblower claims) contends that any judicial rulingsthat Whistleblower claims are to be decided by a judge arenot relevant to my consideration of the right to a jury trial ofwrongful discharge claims based on the public policy excep-tion to the at-will employment doctrine.

I agree. Pennsylvania appellate court case law recognizedwrongful discharge claims based on the public policy excep-tion years before the enactment of the Whistleblower Law.3

Furthermore, the public policy exception developed throughthe case law applies to all persons, including persons whoare public employees.4

The Whistleblower Law applies only to persons perform-ing services for a public body. 43 P.S. §1422. It prohibitsretaliation for reporting waste or wrongdoing. 43 P.S. §1443.This legislation providing protection, through a nonjury trialto public employees reporting wrongdoing or waste, hasnever been viewed as replacing or narrowing the scope ofcauses of action based on the public policy exception. To thecontrary, in Denton v. Silver Stream Nursing andRehabilitation Center, 739 A.2d 571 (Pa.Super. 1999), theCourt ruled that the plaintiff could pursue claims based onboth the Whistleblower Law and the case law allowingwrongful discharge claims under the public policy exceptionto the at-will employee doctrine. In addition, the Court ruledthat an employee discharged for reporting suspectedMedicare fraud could base the public policy exception on adischarge prohibited by the Whistleblower Law.

Numerous other Pennsylvania appellate court casesdecided after the enactment of the Whistleblower Law haveaddressed wrongful discharge claims based on the publicpolicy exception. None has suggested that the WhistleblowerLaw has narrowed the scope of the case law.

For these reasons, case law addressing the WhistleblowerLaw is not relevant to a discussion of whether plaintiff isentitled to have his claims raised in Count XI (“Violation ofthe Pennsylvania Common Law for Wrongful Discharge”)heard by a jury.

II.The right to a jury trial is governed by Pa. Const. art. 1,

§6. This right extends to all causes of action for which a rightto a jury trial existed at the time the Constitution was adopt-ed in 1790. Mishoe v. Erie Insurance Co., 824 A.2d 1153, 1160(Pa. 2003). This includes any causes of action that have acommon law basis such that they would have been tried by a


jury in 1790. Commonwealth of Pennsylvania v. One (1)1984Z-28 Camaro Coupe, 610 A.2d 36 (Pa. 1992).

The Pennsylvania appellate courts have generallydescribed the wrongful discharge cause of action based onthe public policy exception as a tort.

In Yaindl v. Ingersoll-Rand Co., supra, the Court dis-cussed the legal basis for the action for wrongful discharge.In the text of the Opinion, the Court said that one is struck bythe fact that the factors to be weighed in an action for wrong-ful discharge are substantially identical to the factors to beweighed in an action for intentional interference with theperformance of a contract and “probably, therefore, the mostuseful way to view an action for wrongful discharge is as aparticularized instance of a more inclusive tort of intention-al interference with the performance of a contract [FN6].”Id. at 619.

Footnote 6 reads as follows:

FN6. Of course, an action for intentional interfer-ence with the performance of a contract lies eventhough the contract interfered with is terminable atthe will of the parties. Restatement (Second) ofTorts §766, Comment g (1979). Moreover, while atleast one court has taken the position that an actionfor wrongful discharge lies in assumpsit, Monge v.Beebe Rubber Co., supra. Pennsylvania appears toadhere to the generally held view that the actionlies in trespass. See Reuther v. Fowler & Williams,Inc., supra. It should be noted, however, that anargument may be made that the action for wrong-ful discharge sounds in both assumpsit and tres-pass. See generally Summers, supra; Blades, supra.

In Darlington v. General Electric, 504 A.2d 306, 318(Pa.Super. 1986), the Court described the public policyexception as follows:

The public policy exception has at times beencalled a contractual remedy. “Any contract, includ-ing a contract at will, which is terminated for a rea-son contrary to the public policy of Pennsylvaniagives rise to a claim for breach of contract.”Although the remedy seems to lie in a twilight areabetween trespass and assumpsit, Pennsylvania hastaken the position that “wrongful discharge” basedon contravention of public policy sounds in tres-pass rather than assumpsit. Moreover, wrongfuldischarge has been called a species of the moreinclusive tort of intentional interference. (Citationsomitted.) Id. at 504 A.2d at 318.

In Veno v. Meredith, 515 A.2d 571, 577 (Pa.Super. 1986),the Court also described a public policy wrongful dischargeas a tort:

In short, if there is a dispute over the discharge ofan employee, the threshold inquiry is whether ornot the employment was at-will. If it was, then thedischarge is not reviewable in a judicial forum. Anexception is that the discharge will be reviewablein a judicial forum when there is sufficient evi-dence to suggest that it was against public policy ormade with the specific intent to harm the employ-ee. The latter two causes of action are classified as“wrongful discharge” torts in Pennsylvania.(Citation omitted).

Also see Field v. Philadelphia Electric Co., 565 A.2d 1170,1179 (Pa.Super. 1989), where the Court stated that theemployer’s right to discharge an at-will employee has been

tempered “with the emergence of the common law doctrineof wrongful dismissal whereby an employee may premise acause of action on either tort or contract principles” (citationomitted), and Highhouse v. Avery Transportation, 660 A.2d1374 (Pa.Super. 1995), where the Court stated a discharge forseeking unemployment compensation benefits “will supporta tort claim for wrongful discharge” Id. at 1378 and that “wereject appellee’s pre-emption argument and hold that appel-lant is not foreclosed from pursuing a common law tortaction” (citation omitted). Id. at 1378.

Almost every state recognizes a common law wrongfuldischarge cause of action based on violations of public poli-cy. The case law of the other states characterizes the claimas either a contract claim, a tort claim, or both a tort and abreach of contract. 24 Causes of Action 2d 237 (2007).

In summary, because a common law wrongful dischargecause of action sounds in contract and/or tort, these causesof action would have been tried by a jury in 1790.Consequently, plaintiff is entitled to have the claims whichhe raises in Count XI tried by a jury.

Paragraph 325 of new Count XI of plaintiffs’ amendedcomplaint sets forth the public policies of theCommonwealth allegedly violated by the termination and ornon-renewal of plaintiff ’s contract:

325. The termination and/or non-renewal ofplaintiff ’s contract with UPP, his removal of him asan Assistant Dean and from roles in various depart-ments and committees as a result of his conduct incompliance with policies, his contracts, laws, regu-lations, training and his obligations as a physicianwas done in violation of the public policy of theCommonwealth including but not limited to its cod-ification in 43 P.S. 1421 et seq. and 40 P.S. 1303.102et seq., regulations of the PennsylvaniaDepartment of Health, regulations of the U.S.Department of Health and Human Services thatare followed by the Pennsylvania Department ofHealth, and internal regulations and policiesaffecting the conduct of activities of the defendantsincluding the prohibition against retaliation thatare in place to promote the public health and wel-fare of the citizens of this Commonwealth and toensure a health care provider’s compliance withlaws, regulations and an acceptable standard ofpractice for patients.

Defendants contend that there is no right to a jury trialwhere the public policy violation also constitutes a violationof the Whistleblower Law. For the reasons discussed in PartI of this Opinion, the Whistleblower Law does not restrict apublic employee from also pursuing a common law dis-charge claim that he or she would have been permitted topursue prior to the enactment of the Whistleblower Law. Forexample, an employee of a nursing home funded with publicfunds who was terminated for reporting Medicare fraud maybring both common law wrongful discharge claims andclaims based on the Whistleblower Law.5

Defendants refer to a second situation: A common lawwrongful discharge cause of action that is based solely onviolations of the Whistleblower Law. Defendants contendthat in this situation there is no right to a jury trial becausethe Legislature did not intend for a violation of theWhistleblower Law to serve as the basis for a remedy forwhich a jury trial may be awarded. I need not consider thiscontention because plaintiff ’s wrongful discharge claimsappear to be based on his reporting alleged misconduct thatwould violate public policies unrelated to the WhistleblowerLaw. Consequently, my denial of defendants’ preliminary


objections requesting that I strike plaintiff ’s demand for ajury trial does not address the issue described in this para-graph of the Opinion.

ORDER OF COURTOn this 12th day of June, 2008, it is hereby ORDERED

that defendants’ preliminary objection requesting that Istrike plaintiff ’s demand for a jury trial set forth in Count XIof Plaintiff ’s Amended Complaint is overruled.

BY THE COURT:/s/Wettick, J.

1 Section 308 of MCARE provides that a healthcare workershall not be subject to any retaliatory action for reporting theoccurrence of a serious event or incident and shall have theprotections and remedies set forth in the Whistleblower Law.2 The parties have not cited and research of this office hasnot found any appellate court case law that has specificallyaddressed this issue.3 See Reuther v. Fowler & Williams, Inc., 386 A.2d 119(Pa.Super. 1978); Yaindl v. Ingersoll-Rand Co., 422 A.2d 611,616-17 (Pa.Super. 1980).4 Reuther v. Fowler & Williams, Inc., supra; Shick v. Shirey,716 A.2d 1231 (Pa. 1998).5 See Denton v. Silver Stream Nursing and RehabilitationCenter, supra, including the concurring opinion of JudgeMcEwen.

Ada P. DeArmitt and Gerald W. DeArmitt v.New York Life Insurance Co.

and Russell F. BickerMotion for Summary Judgment—Fraud in the Inducement—Consumer Protection Law

Plaintiffs’ five-count complaint included counts for com-mon law fraud and deceit, negligence, violation of the UnfairTrade and Consumer Protection Law (statutory and fraud),and negligent supervision. Plaintiffs received a whole lifeinsurance policy rather than the annuity or annuity-likeinvestment vehicle Plaintiffs claim was sold. The policy con-tained an integration clause. The negligence and negligentsupervision counts were dismissed due to statute of limita-tions and lack of agency between New York Life InsuranceCo. and Russell F. Bicker. The other counts were not dis-missed. A fact finder could find that the agent’s allegeddescription was intended to and did cause plaintiffs to rea-sonably believe that they were not purchasing only a wholelife policy under which substantial portions of the annualdividends would be used to cover life insurance.

(Linda A. Michler)

Kenneth W. Behrend for Plaintiffs.William M. Wycoff, Stuart C. Gaul, Jr., and Illene S. Tobiasfor New York Life Insurance Co.David M. Chmiel for Russell F. Bicker.

No. GD 95-017282. In the Court of Common Pleas ofAllegheny County, Pennsylvania, Civil Division.

OPINION AND ORDER OF COURTWettick, J., June 12, 2008—Defendants’ motions for sum-

mary judgment seeking dismissal of plaintiffs’ five-countthird amended complaint are the subject of this Opinion andOrder of Court.

In their complaint, plaintiffs state that they sold a busi-ness for which they would receive certain lump sum pay-ments and a mortgage agreement under which the buyerwould pay $5,000 monthly, beginning in 1986 and extendingout over a twenty-year period. In April 1988, plaintiffs, dueto a change in the tax laws, decided to invest $50,000 of thelump sum payments into a tax-deferred investment vehicleto ensure they would have sufficient income after the mort-gage expired in eighteen years.

Plaintiffs contacted defendant, Russell F. Bicker, a NewYork Life Insurance Company agent. Mr. Bicker represent-ed that plaintiffs’ needs could be fulfilled by enrolling in aNew York Life annuity or an “annuity-like” investment vehi-cle (Third Amended Complaint ¶23). Mr. Bicker advisedplaintiffs that any tax-deferred investment plan mustinclude a life insurance component. Mr. Bicker assuredplaintiffs that if they enrolled in the investment vehiclewhich he proposed and made a payment of $50,000, plain-tiffs would accumulate a fund of at least $153,085 at the endof an eighteen-year period and that plaintiffs would be ableto withdraw between $12,000 and $14,000 per year withoutdepleting the fund.

Plaintiffs later learned that the investment vehicle whichthey purchased was only a standard whole life policy underwhich most of the earnings were used to fund the insuranceaspect of the policy and that at the end of eighteen years thebalance in the policy was only $99,900.

On the basis of these allegations, plaintiffs have raisedthe following causes of action: Count I–Common Law Fraudand Deceit; Count II–Negligence; Count III–Violation of theUnfair Trade Practice and Consumer ProtectionLaw–Statutory; Count IV–Violation of the Unfair TradePractices and Consumer Protection Law–Fraud; and CountV–Negligent Supervision. In Count V, plaintiffs seek recov-ery only from New York Life. In the remaining counts, theyseek recovery from both New York Life and Mr. Bicker.

COUNTS I, III, AND IVThe only writing that plaintiffs received describing the

investment vehicle which they purchased was a whole lifeinsurance policy issued to Mr. DeArmitt in a face amount of$100,000. This policy contains an integration clause.

Defendants seek summary judgment as to the fraud andConsumer Protection Law counts. They contend that plain-tiffs’ claims are based on representations made prior to theissuance of the contract and, thus, are inadmissible underthe parol evidence rule.1 Defendants rely on Toy v.Metropolitan Life Insurance Co., 928 A.2d 186 (Pa. 2007),where the Court ruled in an unfair practices insurance casethat “‘parol evidence may not be admitted based on a claimthat there was fraud in the inducement of the contract.’” Id.at 205, quoting Yocca, 854 A.2d at 437 n.26.

However, in Toy, the Pennsylvania Superior Court foundthat the plaintiff ’s claim fell within the exception to the parolevidence rule for fraud in the execution of the contract.2 ThePennsylvania Supreme Court, on the basis of this finding,allowed the plaintiff to pursue Consumer Protection Lawclaims based on a showing that terms were fraudulentlyomitted from the contract.

In this case, plaintiffs contend that they may pursue theirfraud and Consumer Protection Law claims because termswere fraudulently omitted from the contract. According toplaintiffs (Plaintiffs’ Brief in Response to Defendants’Motion for Judgment on the Pleadings or for SummaryJudgment at 7), plaintiffs received a standard whole life pol-icy while being promised an investment vehicle that wasmore than a life insurance policy and that the written agree-ment also failed to include the promise that for an initial


investment of $50,000, plaintiffs would receive at least$153,000 after eighteen years.

Plaintiffs may not pursue a fraud in the execution claimbased on the failure of the writing to include a guaranteethat plaintiffs would receive at least $153,000 at the end ofeighteen years. At his deposition, Mr. DeArmitt testifiedthat he had seen the language on the illustration saying thatdividends are not guaranteed and the agent told him thatwhile dividends are not guaranteed, they never went belowwhat was on the illustration and in most cases were wellabove (Gerald DeArmitt 5/13/04 Transcript, T. 88-89). Thistestimony bars a finding that a guarantee of dividends pro-ducing at least $153,000 in eighteen years was omitted fromthe writing.

I reach the opposite result with respect to the claim thatthe writing should have included an investment vehicle dif-ferent from a standard whole life policy. According to thetestimony of Mr. DeArmitt, he did not want life insurance (T.75) and the New York Life agent never told plaintiffs thattheir money was being used to purchase a standard wholelife policy. Instead, he described what plaintiffs were pur-chasing as an annuity tied in with insurance (T. 55, T. 87). Afact finder may find that the agent’s alleged description wasintended to and did cause plaintiffs to reasonably believethat they were not purchasing only a whole life policy underwhich substantial portions of the annual dividends would beused to cover life insurance.3

COUNT III am dismissing Count II. The claim against New York

Life is barred by the statute of limitations. Also, the factualallegations in the complaint do not establish a negligentbreach of any duty the agent owed to the plaintiffs.

All claims against the agent must be raised in the fraudand Unfair Trade Practices counts.

COUNT VThe negligent supervision count is dismissed because

New York Life states that the agent was a New York Lifeagent acting in the course of his employment.

ORDER OF COURTOn this 12th day of June, 2008, upon consideration of

defendants’ motion for summary judgment, it is ORDEREDthat Counts II and V are dismissed.

BY THE COURT:/s/Wettick, J.

1 In Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425,438-39 (Pa. 2004), the Court ruled that a ConsumerProtection Law claim cannot be based on representationsexcluded by an integration clause.2 The defendants did not challenge the Superior Court’s char-acterization of the plaintiff ’s claims in this regard. Toy, 928A.2d at 205 n.23.3 The Third Amended Complaint contains allegations sup-porting a cause of action of fraud in the execution. See para-graphs 23, 24, 28, 49, 50, 54, and 63(a).

Deborah L. Kozel v.David F. Kozel

Child Support Modification—Pa. R.C.P. 1910.19—Materialand Substantial Change of Circumstances

1. Mother filed Petition for Modification of a $6,344.00monthly child support order several months after the conclu-

sion of protracted divorce proceedings that included anappeal to the Superior Court (which affirmed the trialcourt’s decision) and a Petition for Allowance of Appeal tothe Supreme Court, which was denied.

2. Petition averred only that “the children’s monthlyexpenses have increased.” No details or supporting affi-davits or documents were produced and court found thatFather had insufficient notice of the substance of the claim.

3. Pa. R.C.P. 1910.19 governs Petitions for Modification ofChild Support Orders, and states that petitioner must“specifically aver the material and substantial change in cir-cumstances upon which the petition is based.” Court heldthat Mother’s Petition did not satisfy the threshold standardof specificity and dismissed.

4. Mother filed a Motion for Reconsideration andappended the same budget she had submitted in the 2005divorce trial. Mother’s budget included invented andimproper expenses. Excluded expenses included nonexist-ent orthodontic charges, horse purchase and boarding feeswhen Mother did not own horses, biweekly manicures andpedicures.

5. Although Petitioner does not need to initially plead herentire case, court found Mother’s averment that all of herexpenses on her old budget were now higher, was no differ-ent than alleging that her expenses had increased. Mother’spleading as amended was therefore also insufficient and wasdismissed.

(Hilary A. Spatz)James E. Mahood for Plaintiff.Frederick N. Frank for Defendant.

No. FD 98-00761-004. In the Court of Common Pleas ofAllegheny County, Pennsylvania, Family Division.

OPINIONHens-Greco, J., June 30, 2008—Plaintiff Deborah L.

Kozel (“Mother”) appeals from an Order of this Court datedMarch 18, 2008, denying her Petition for Modification of anExisting Order of Support. Mother and Defendant David F.Kozel (“Father”) have been embroiled in this “complex andlengthy” divorce action for a decade. See Kozel v. Kozel, Nos.1807 & 1808 WDA 2005 and Nos. 1857 & 1858 WDA 2005, at19 n.8 (Pa.Super. Feb. 27, 2007). For the reasons that follow,the Court’s Order should be affirmed.

Factual and Procedural HistoryThe parties were married on July 30, 1994. Following the

birth of their two children in 1995 and 1997, the parties sep-arated on September 9, 1998. Father began paying alimonypendente lite and child support shortly thereafter. Thedivorce decree was granted on April 4, 2002. An order of thisCourt dated June 26, 2002, set Father’s support obligation at$3,743 per month in alimony pendente lite and $5,681 permonth in child support.

On January 30, 2004, Father filed a petition to modify thesupport order, and his petition was consolidated with theparties’ equitable distribution claims, which Hearing OfficerGilman heard over the course of an eight-day trial. TheHearing Officer issued his Findings of Fact and Conclusionsof Law Regarding Support on January 27, 2005, recommend-ing that Father pay $6,344 in child support. Both parties filedexceptions to the Hearing Officer’s recommendations. OnSeptember 27, 2005, the Court granted in part and dismissedin part the parties’ exceptions, entering a final order award-ing Mother $6,344 in child support and $5,049 in alimony


pendente lite, retroactive to January 30, 2004. Mother movedfor reconsideration of this final support order, and this Courtdenied the motion on October 27, 2005.

The parties filed two appeals and cross-appeals from thisorder. Nos. 1807 & 1808 WDA 2005 and 1857 & 1858 WDA2005. The appeals were consolidated, and on February 27,2007, the Superior Court affirmed this Court’s order. Motherapplied for reargument en banc; the Superior Court deniedher application on May 11, 2007. Mother filed a Petition forAllowance of Appeal in the Pennsylvania Supreme Court; theSupreme Court denied her petition on October 17, 2007. No.259 WAL 2007.

Five months later, on March 18, 2008, Mother presentedto this Court a Petition for Modification of the September27, 2005 child support order. The modification petitionasserted that “Mother is entitled to an increase in theSeptember 27, 2005 Order because of the following materi-al and substantial change in circumstances: the children’smonthly expenses have increased.” Other than this generaland conclusory statement, the petition revealed nothingwhatsoever about the substance of the allegations, nor didit provide any supporting affidavits, exhibits, or documentsshedding any light on the allegations of how or when or towhat extent the children’s reasonable needs had generatedincreased expenses, to give Father sufficient notice of thesubstance of Mother’s claim to permit him to prepare anadequate response. The petition further requested that themodification hearing be designated complex to enable theparties to conduct discovery, engage the services of expertwitnesses, and embark upon another modification proceed-ing requiring “multiple days of hearings.” See Pet.Modification at ¶¶7-9. This Court denied the petition onMarch 18, 2008.

Roughly two weeks later, Mother filed a Motion forReconsideration and/or to Amend Pleading. In this Motion,Mother restated the material and substantial change in cir-cumstances justifying an increase in child support as fol-lows: “the children’s monthly expenses have increased,including all expenses listed on Mother’s budget from thelast support proceeding.” See Mot. Reconsideration at ¶10.In support of her motion, Mother attached the budget sheetwhich was the subject of the previously decided SuperiorCourt appeal, without modification, as an exhibit.1 The state-ments of fact in the Motion were verified not by Mother butby her attorney, who represented that Mother’s verificationcould not be obtained in the time allowed for filing as shewas outside of the jurisdiction. The Court denied Mother’sMotion for Reconsideration and/or to Amend Pleading onApril 14, 2008. This appeal followed.

Mother’s Statement of Matters Complained of on Appealcan be summarized as follows: the Court erred in failing todesignate the matter complex and schedule the requestedhearing because Mother’s petition was sufficient as a matterof law to trigger a right thereto.

DiscussionRule 1910.19 governs petitions for modification of child

support orders. The Rule states very clearly that

[a] petition for modification or termination of anexisting support order shall specifically aver thematerial and substantial change in circumstancesupon which the petition is based.

Pa. R.C.P. 1910.19(a) (emphasis added). Instead, Mother’sinitial petition in this case, in merely stating that expens-es had increased, plainly did not satisfy the thresholdstandard of specificity established by the rule. Mother’sMotion for Reconsideration did no better in that it

attempted to flesh out the allegations with a budget sheetof stale claims already rejected by the Superior Court onappeal. See Kozel v. Kozel, Nos. 1807 & 1808 WDA 2005and Nos. 1857 & 1858 WDA 2005, at 18 (Pa.Super. Feb. 27,2007) (upholding trial court’s adoption of the hearing offi-cer’s recommendation that no more than $6,344 permonth was required for children’s reasonable needs,based largely on credibility determinations). If anything,the budget sheet, showing no changes, undercut Mother’sassertion that circumstances had changed. More dis-turbingly, it puts forth expenses that the hearing officerhad determined were invented or improper and whichboth this Court and the Superior Court agreed should beexcluded. See Id.; see, e.g., Findings of Fact and conclu-sions of Law Regarding Support (Jan. 27, 2005) at 12,¶57(b) (rejecting $416.67 claimed expense for children’sbraces based on finding that children do not have bracesand have never seen an orthodontist); Id. at 13, ¶57(j)(rejecting $1,238.10 claimed expense for purchase andboarding of horses based on finding that Mother does notown horses and children were too busy with other activi-ties to pursue horseback riding seriously enough to justi-fy the expense); Id. at 13, ¶57(i) (rejecting $303.33claimed expense for horseback riding lessons based onfinding that children were not taking horseback ridinglessons); Id. at 13-14, ¶57(l) (rejecting $186.88 claimedexpense for bi-weekly manicures and pedicures based onMother’s inability to break out her portion of this expensefrom the children’s portion). Obviously, Mother does notneed to plead her entire case in her motion, but this Courtfound that, in simply asserting indiscriminately that all ofher old expense on the old budget were now higher insome unknown degree, Mother had essentially done nomore than she initially did with her bare-bones allegationthat her expenses increased.

Mother points to Keating v. Keating, 595 A.2d 109(Pa.Super. 1991), for the proposition that the trial court wasrequired to grant her an evidentiary hearing. However, theKeating court was not presented with the issue of the ade-quacy of pleadings under Rule 1910.10, and is thereforeinapposite. Neither Keating nor constitutional principles ofdue process or equal protection require the Court to openits calendar to protracted proceedings for a petitioner whowill not or has not herself devoted just that amount of timenecessary to satisfy reasonable standards of sufficiency inpleading.

Because Mother did not approach Rule 1910.19’s thresh-old either in her initial Petition to Modify or in her Motionfor Reconsideration, the Order of this Court shall beaffirmed.

BY THE COURT:/s/Hens-Greco, J.

1 Mother also alleged that Father’s failure to exercise custo-dial time with his children further added to Mother’sexpenses, and that the mere passage or time entitled her toa cost of living increase. See Mot. Reconsideration at ¶10.Such an allegation, without more, is not enough to entitleMother to proceed, because it does not state a claim uponwhich relief could be granted. See, e.g., Sladek v. Sladek, 563A.2d 172, 175 (Pa.Super. 1989) (“appelle’s conclusory decla-ration that an increase in support was necessitated by theincrease in the cost of living over a two year period, withoutany specific reference to specific instances in which theincrease in the cost of living has affected her expenditures inrelation to her two children is insufficient to establish theexistence of a change in circumstances.”)


Commonwealth of Pennsylvania v.Steven Slutzker

Criminal Law—Post Conviction Collateral Relief Act—Double Jeopardy—Recusal—Affidavit of Probable Cause—Prosecutorial Misconduct

1. When arguing undue delay in the filing of charges, adefendant bears the burden of proof, and must show actualprejudice. It is not sufficient for a defendant to make specu-lative or conclusory claims of possible prejudice as a resultof the passage of time.

2. A trial judge should recuse himself when he has anydoubt as to his ability to preside impartially in a case orwhen he believes his impartiality can be reasonably ques-tioned. Another judge of the same court testifying to herprior experience as Assistant District Attorney is not enoughfor recusal.

3. A Court involved in the later phases of a litigated mat-ter should not reopen questions decided by another judge ofthe same court or by a higher court in the earlier phase ofthe matter. The Court already determined the claim that thedefendant’s trial should have been barred because of theprior prosecution on the charges of criminal solicitation tobe without merit, affirmed on appeal, and therefore, cannotrevisit it. Likewise admitting testimony of the victim’s sonand defendant’s daughter had been challenged previously,and on appeal, and cannot be revisited.

4. In order for an Affidavit of Probable Cause to be ren-dered defective, it must be shown to contain a false state-ment that was knowingly, intentionally or recklessly madeand that the statement was necessary for a finding of proba-ble cause.

5. It is not improper for an attorney, while cross-examin-ing a witness, to ask if the witness lied, and such questioningis not a basis for prosecutorial misconduct.

(Linda A. Michler)

Michael W. Streilly for the Commonwealth.Douglas Sughrue for Defendant.

No. CC 199106520. In the Court of Common Pleas ofAllegheny County, Pennsylvania, Criminal Division.

OPINIONManning, J., May 20, 2008—The defendant, Steven

Slutzker, has appealed from the sentence of life imprison-ment imposed by this Court on February 26, 2007. The defen-dant was found guilty by a jury on January 23, 2007 of mur-der of the first degree. In his Concise Statement of MattersComplained of on Appeal, the defendant identifies 11 distinctclaims. Before turning to those claims, it is necessary torecount the long procedural and factual history of this matter.

This case involves the December 28, 1975 murder of JohnMudd, Sr. The defendant, who had been involved romantical-ly with the victim’s, wife, Arlene Mudd, was arrested onJanuary 12, 1976 and charged with one count of criminalhomicide and one count of criminal solicitation to commitcriminal homicide. The solicitation charge arose from thedefendant’s unsuccessful attempt to hire an individualnamed Michael Pezzano to kill the victim. Pezzano reportedthis to the Pennsylvania State Police who were in the processof investigating Pezzano’s claims when John Mudd, Sr. waskilled. Although the criminal solicitation charge was held fortrial at the coroner’s inquest, the coroner determined that

that the Commonwealth failed to establish a prima facie caseon the homicide charge and it was dismissed. TheCommonwealth proceeded with the prosecution on the solic-itation charge and the defendant was found guilty. He wassentenced to not less than 11 1/2 nor more than 23 months inprison and was paroled sometime in 1978.

The investigation into the Mudd murder remained dor-mant for nearly fifteen years. It was reopened in 1991 whenthe victim’s son, John Mudd, Jr., contacted the police andclaimed that he had suddenly recalled the events surround-ing his father’s murder and could identify the defendant asbeing present in his home on the night his father was mur-dered. He explained that during an emotional argument herecently had, he was suddenly flooded with images from thatevening, including images of the defendant in his home talk-ing to his mother, who was also a suspect in the killing.

Based upon the statement of John Mudd, Jr. and a reviewof the evidence gathered at the time of the initial investiga-tion, the defendant was arrested and again charged withmurder in the death of the victim. He was triad by a jury inJanuary 1992. In addition to testimony from John Mudd, Jr.,the Commonwealth presented several other witnesses whodid not testify at the coroner’s inquest and who came for-ward either before or during trial and testified against thedefendant. These witnesses included the defendant’s daugh-ter, Amy Slutzker, who testified that she saw her fatherretrieve a handgun from a dresser drawer and leave theirresidence for a time on the night that John Mudd, Sr. waskilled. He returned and immediately took her to the home ofJanet and Patrick O’Dea. She said that she had alwaysremembered these events but was afraid of her father andnever revealed what she knew until her father contacted herprior to the 1992 trial and asked her to testify on his behalf.Joseph Lindsey also came forward and testified that severalmonths before John Mudd, Sr. was shot he encountered thedefendant at a swap meet and the defendant asked him toshow him how to operate an automatic weapon. The victimwas killed with an automatic weapon. Moreover, this testi-mony impeached the defendant’s claim that he had neverhandled an automatic weapon. Finally, Sandra Catone testi-fied that during an argument she was having with the defen-dant (her landlord) in the mid 1980’s, he told her that he hadkilled a man in Wilkinsburg in the seventies.

The jury found the defendant guilty of first degree murder.He was sentenced to life imprisonment. The Superior Courtaffirmed the judgment of sentence and a subsequent Petitionfor Allowance of Appeal to the Pennsylvania Supreme Courtwas denied. The defendant then filed a Petition under the PostConviction Collateral Relief Act, Pa.C.S.A. §9501, et seq. in1997. Following a hearing, that Petition was denied. Thatdenial of relief was affirmed on appeal.

Defendant thereafter filed a Pro-Se Petition for HabeasCorpus in the United States District Court for WesternDistrict of Pennsylvania in December, 1999. Defendantserved a subpoena on the Wilkinsburg Police Departmentand was provided approximately 28 reports that he claimedhad not been provided to his trial counsel, the late CharlesScarlata. The United States District Court concluded thatone of the reports, memorializing an interview of witnessCynthia DeMann, was material in that it was inconsistentwith her trial testimony. To remedy this violation of Brady,1

the defendant was awarded a new trial. The matter wasremanded to this Court for trial. The defendant filed severalpre-trial motions seeking to bar his re-trial and seeking tohave this Court recuse from the matter. Those motions weredenied after hearing and the re-trial commenced in January2007, resulting in the defendant’s conviction and subsequentappeal.


The issues raised in the defendant’s concise statementwill be addressed in the order in which he raised them.

First, the defendant contended that the retrial on thesecharges violated his right to due process and against doublejeopardy because of the 29 year delay between the date ofthe offence and the trial. He raised this claim in his pre-trialmotion and contended that the Commonwealth was responsi-ble for this delay and that this Court should therefore havebarred the Commonwealth from retrying him. TheCommonwealth responded that the delay was not attributa-ble to the Commonwealth and, more importantly, that thedefendant failed to show that he suffered actual prejudice bythe delay.

“When a defendant argues undue delay in the filing ofcharges, proof of prejudice is a prerequisite to considerationof whether there has been a denial of due process.”Commonwealth v. Sneed, 526 A.2d 749, 752 (1987). A defen-dant must show “actual prejudice,” which, according to thePennsylvania Supreme Court, means that a defendant“…must show that he or she was meaningfully impaired inhis or her ability to defend against the state’s charges to suchan extent that the disposition of the criminal proceedingswas likely affected.” Commonwealth v. Scher, 803 A.2d 1204,1222 (Pa. 2002). It is not sufficient for a defendant to makespeculative or conclusory claims of possible prejudice as aresult of the passage of time. Where a defendant claims prej-udice through the absence of witnesses or other evidence, itis his or her burden to show in what specific manner missingwitness or other evidence, would have aided the defense. Heor she must also show that the lost testimony or informationis not available through other means. Scher, supra. Even if adefendant were to show prejudice, however, the “adverseeffect on his defense is excusable if the delay was a deriva-tion of reasonable investigation by the authorities.” Id. at753. In addition, a defendant must show that the“Commonwealth’s action in causing or allowing the delaywas ‘fundamentally unfair.’’’ Commonwealth v. Grazier, 570A.2d 1054, 1057 (1990).

The delay in this claim is comprised of two separate peri-ods of time: the time between the offense and the first trial,a period of approximately 16 years; and the period betweenthe conviction and the re-trial, a period of approximately 15years. With regard to the period of time between the offenseand the first trial, this claim is waived because it was notpreserved during the first trial. The defendant had theopportunity to present this claim at the time of his first trial,in his appeal from his first conviction and in his PCRAPetition filed after his conviction was affirmed on appeal.His failure to present this claim at any juncture preventshim from raising it now.

To the extent that waiver may not be applicable to thatportion of this claim that addresses the first period of delay,the defendant has failed to meet his burden of establishingany of the elements identified above. He did not establishactual prejudice. He did not identify any witnesses or docu-mentary evidence that was lost by the passage of time which,had it been available, would have aided his defense to thepoint where the outcome at trial, would likely have been dif-ferent. Finally, and most importantly, he failed to establishthat the Commonwealth intentionally delayed his prosecu-tion to gain a tactical advantage. The record establishes,without dispute, that the prosecution was delayed between1976 and 1991 because of a lack of evidence. TheCommonwealth attempted to prosecute him on the homicidecharges, but was prevented from doing so when the Coronerdetermined that the Commonwealth had not presented suffi-cient evidence.

The second portion of this claim, that the defendant’s trial

should be barred because of the “delay” from the date of hisconviction following the first trial to the date of the re-trial,is also patently frivolous. Those cases cited by the defendantin his pre-trial motion and at argument on that motion insupport of this claim all address “pre-arrest delay.” None ofthe time between the conviction and the present constitutes“pre-arrest delay.” The principles that govern situationswhere there has been a delay between the crime and arresthave no application to the time that passes between a convic-tion and a re-trial where a new trial has been awarded.Whether the commonwealth can proceed to trial where anew trial has been granted turns on entirely different legalprinciples. The second issue that the defendant raises, alleg-ing prosecutorial misconduct, was the only basis upon whicha defendant could validly have sought to bar the re-trial.

That claim, however, was also patently frivolous.Defendant claimed that the failure of the Commonwealth toturn over the police reports from the Wilkinsburg PoliceDepartment violated his right to due process and shouldhave prevented the Commonwealth from trying him againfor this murder. First, in that only one of the reports wasfound to be material, the failure of the Commonwealth toturn over the other reports from the Wilkinsburg PoliceDepartment are not relevant to this claim. Defendant’s rightto relief on this claim turned on whether the prosecutorengaged in a course of conduct that was intentionally under-taken to prejudice him to the point of denying him a fair trial.Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992). Thedefendant presented absolutely no evidence at the hearingon this claim that established any such course of conduct ofthe part of the prosecutor. The testimony the defendant didpresent from the trial prosecutor in the case established thatthere was no course of conduct intentionally undertaken toprejudice him. Former Deputy District Attorney (nowJudge) Kim Clark testified that she had no knowledge of thepolice report that was provided to the defendant by theWilkinsburg Police Department pursuant to the subpoena heissued in connection with his Federal Habeas Corpus pro-ceeding. The defendant presented no evidence tending toshow that this testimony was false and that she was, in fact,aware of that single material report or intentionally withheldit from the defense. The determination by the federal courtthat the defendant was entitled to new trial because of aBrady violation is not enough to bar a re-trial on the basis ofprosecutorial misconduct. The ruling by the Federal Courtonly established that the defendant did not have access to asingle materially exculpatory report at the time of his firsttrial; it did not establish that there was an attempt to inten-tionally prejudice the defendant’s right to a fair trial.2 Basedupon the evidence presented to this Court on this issue, itwas clear that the Commonwealth did not intentionally try todeny the defendant a fair trial.

The defendant next complains that the Court erred whenit refused to recuse from this matter. The defendant hasrepeatedly sought to have this Court recuse in these pro-ceedings. The allegations offered in support of thoserequests were baseless. In the context of these requests, thedefendant claimed that the Court had to recuse itselfbecause it would be called upon to assess the credibility ofJudge Clark and that the Court’s ability to do so could rea-sonably be called into question because this Court and JudgeClark are colleagues. The original motion was denied. AfterJudge Clark testified, the motion was renewed and againdenied.

The party who asserts that a trial judge must be disqual-ified bears the burden of producing evidence establishingbias, prejudice, or unfairness necessitating recusal.Commonwealth v. Perry, 364 A.2d 312 (1976). Furthermore,


the “decision by a judge against whom a plea of prejudice ismade will not be disturbed except for an abuse of discre-tion.” Commonwealth v. Kane, 184 A.2d 405, 406 (1962). Ingeneral, a “trial judge should recuse himself whenever hehas any doubt as to his ability to preside impartially in acriminal case or whenever he believes, his impartiality canbe reasonably questioned.” 311 A.2d 652, 654 (1973) (quotingfrom A.B.A. Standards Relating to the Function of the TrialJudge §1.7).

This Court had no doubt as to its ability to fairly andimpartially preside at all proceedings in this matter, includ-ing the hearing at which Judge Clark testified. Many of thisCourt’s colleagues are former prosecutors or defense coun-sel and have, on occasion, been called to testify before thisCourt and others on this bench regarding matters they han-dled as attorneys. This Court has not recused from matterssimply because a fellow member of the bench will appear asa witness. The defendant did not present any reasons, otherthan the fact that this witness also serves as a judge in thisCounty, why this Court’s fairness and impartiality could becalled into question.

The defendant also claims that the Court erred in denyinghis request to bar a retrial on the basis that theCommonwealth was required to prosecute the criminal solic-itation charge and the criminal homicide charge at one time.Defendant contends that his conviction for criminal solicita-tion should bar the Commonwealth from trying him for themurder. The defendant relies upon principles of double jeop-ardy and Section 110 of the Crimes Code.

This claim was raised in the defendant’s Post ConvictionRelief Act Petition. In an Opinion dated June 26, 1998, theCourt held:

Although the solicitation charge from 1976 and theHomicide charge from 1991 arose in the sameCourt and the Solicitation charge ended in a convic-tion, the other two parts of this test were clearly notmet. First, the conviction arising out of thePetitioner’s attempt to hire Michael Pezzano to killJohn Mudd, Sr., did not arise out of the same crim-inal conduct or arise from the same criminalepisode as the Murder charge for which thePetitioner was convicted in this case. The crimesare different. They occurred at different times anddifferent locations. The evidence tending to estab-lish the Petitioner’s guilt in each prosecution is dif-ferent except for the admission in Petitioner’sMurder Trial of his statements to Pezzano whichformed the crime of Solicitation. The facts neces-sary to convict the Petitioner of Solicitation weredifferent from the facts necessary to convict him ofmurder. Simply because the evidence at one timewas admissible in a trial on a separate crime doesnot establish the identity of crimes necessary to bara subsequent prosecution on the basis of the doublejeopardy clause.

Nor were the two offenses part of the same crimi-nal episode. The Petitioner solicited MichaelPezzano to kill John Mudd, Sr. on December 19,1975, and again a few days later. That unsuccessfulsolicitation, however, had no effect on the subse-quent success Petitioner had in killing John Mudd,Sr. himself. Perhaps, if Pezzano had killed JohnMudd, Sr., Petitioner’s argument might make somesense. The circumstances of this case, however, donot establish that these two offenses were part ofthe same criminal episode.

Commonwealth v. Slutzker, Slip Opinion, June 26, 1998 atpages 10-11. As this claim was already addressed in thisCourt and on appeal, it cannot be properly raised again asthose previous rulings constitute the “law of the case.” TheSuperior Court, in Commonwealth v. Santiago, describedthis principle:

The law of the case doctrine “refers to a family ofrules which embody the concept that a courtinvolved in the later phases of a litigated mattershould not reopen questions decided by anotherjudge of that same court or by a higher court in theearlier phase of the matter.” Commonwealth v.Starr, 541 Pa. 564, 664 A.2d 1326 (1995). This doc-trine applies when a case has been remanded andmandates that the trial court may not alter a legalquestion decided by an appellate court in the mat-ter. Starr, supra, 664 A.2d at 1331. Moreover, adefendant is not permitted to re-litigate the admis-sibility of evidence by filing a suppression motionwhen the same issue was raised and decided previ-ously. Commonwealth v. McEnany, 732 A.2d 1263(Pa.Super. 1999).

822 A.2d 716, 723-724 (Pa.Super. 2003). This Court alreadydetermined that the claim that the defendant’s trial shouldhave been barred because of the prior prosecution on thecharge of criminal solicitation was without merit. Thatdetermination was affirmed on appeal. It is, therefore, thelaw of this case and cannot be revisited.

Next the defendant claims the Court erred in refusing toquash the information due to procedural defects. This claimrests on two bases. First, the defendant contends that theAffidavit of Probable Cause was defective because it refersto Dr. Alan Pass as a “certified forensic psychologist,” when,in fact, Dr. Pass did not have that qualification. He also con-tended that the Affidavit falsely attributed pry marks on abasement door to the intruder who killed the victim when, infact, those pry marks were apparently made by the police.

In order for an Affidavit of Probable Cause to be ren-dered defective, it must be shown to contain a false state-ment that was knowingly, intentionally or recklessly madeand that that statement was necessary to a finding of proba-ble cause. Commonwealth v. Taylor, (850 A.2d 684,(Pa.Super. 2004). The defendant did not establish either thatthe affiant knew that Dr. Pass was not a “certified forensicpsychologist” or that this assertion was material to a findingof probable cause. Nor did the defendant establish that theassertion regarding the pry marks was made with knowledgeof its falsity or that it was in any way material to a finding ofprobable cause. Accordingly, this claim was properly denied.

The defendant also challenged the Affidavit on the basisthat because the inquest in this matter was conducted beforethe Coroner and the Coroner acted inappropriately as anissuing authority. This is another patently frivolous claim inlight of the repeated rejection of this argument in the appel-late courts of this commonwealth. See Commonwealth v.Prosdocimo, 479 A.2d 1073 (Pa.Super. 1984); Commonwealthv. Lopinson, 234 A.2d 552 (Pa. 1967); and Commonwealth v.Smouse, 594 A.2d 666 (Pa.Super. 1991).

In his seventh and eighth claims the defendant contendsthat the Court erred in permitting the testimony of JohnMudd, Jr. and Amy Musselman, the defendant’s daughter.Both of these claims were raised at the tine of the first trial.This Court’s determination that their testimony would bepermitted was challenged on appeal and was affirmed.Accordingly, pursuant to the law of the case doctrine, theseclaims cannot be revisited.

Next, the defendant claims that he was denied, a fair trial


because the prosecutor asked Patrick O’Dea whether he lied.This claim is specious. A defendant is not entitled to relief onthe basis of prosecutorial misconduct unless the ‘unavoid-able effect’ of the prosecutor’s comments or actions is to“prejudice the jury so that a true verdict cannot be renderedbecause the existence of bias and hostility makes it impossi-ble to weigh the evidence in a neutral manner.’’’Commonwealth v. Hill, 666 A.2d 642, 647 (1995), quotingCommonwealth v. Baker, 614 A.2d 663, 671 (1992). It wouldbe improper for any attorney to express to a jury their per-sonal belief that witness has lied. It is not improper for anattorney, while cross-examining a witness, to ask that wit-ness if they lied, particularly when the inconsistencies intheir testimony suggests that they are not being truthful.Here, the prosecutor did not express his personal opinionthat the witness was lying, he only asked the witness if helied. This was not an improper question. Even if the questioncould be construed to suggest to the jury the prosecutor’spersonal belief that the witness lied, it certainly did not havethe unavoidable effect of prejudicing the jury to the pointwhere they were not capable of rendering a fair verdict.

Finally, the defendant, in his last two claims, contendsthat the verdict was against the weight of the evidenceand/or that the evidence was not sufficient. IN the weightclaim, the defendant suggests that the verdict was againstthe weight because “…the prosecution was based upon JohnMudd, Jr.’s flashback memories the truth of which wasunsupported by the great weight of the evidence.” The pros-ecution may have begun with John Mudd, Jr. claiming tohave experienced a sudden recall of the events surroundinghis father’s death, but it certainly did not depend, to anydegree, on that evidence. The prosecution’s evidence includ-ed several eyewitnesses who placed the defendant in thearea of the Mudd residence moments after the murder; thedefendant’s admitted attempt to hire someone to kill the vic-tim only weeks before the victim was killed; an admission bythe defendant to a disinterested third party, years after thekilling, that he had killed a man in Wilkinsburg; the defen-dant’s possession of a weapon consistent with the weaponused in the murder and the testimony from the defendant’sown daughter who recalled that on the night of the killing,her father left their home with a handgun and returned a fewminutes later and rushed her out of their house to the homeof the purported alibi witness, Janet and Patrick O’Dea. Theverdict was not against the weight of the evidence; it waswholly consistent with that evidence. That evidence was alsosufficient to establish, beyond a reasonable doubt, that thedefendant laid in wait in the basement of the Mudd home,lured John Mudd, Sr. there by causing the power to go off inthe home and then shot him with the .32 caliber automaticweapon that Joseph Lindsey showed him how to operate.

For the reasons set forth above, the judgment of sentenceshould be affirmed.

BY THE COURT:/s/Manning, J.

Date: May 20, 2008

1 Brady v. Maryland, 373 U.S. 83 (1963).2 The Court would note that the materiality and exculpatorynature of this report was certainly called into question dur-ing the re-trial when the witness, Cynthia DeMann, testifiedthat the reason she told the police that the man she saw wasnot Steven Slutzker was because she was afraid of him. Onlyafter he was arrested did she feel comfortable telling thepolice that she did recognize the defendant as the man talk-ing to the victim’s wife shortly after the shooting.

Commonwealth of Pennsylvania v.Kenneth Hairston

Criminal Law—Jury Instructions—Post Sentence Motions—Ineffective Assistance of Counsel—Admissibility of PriorBad Acts—Prosecutorial Misconduct—Victim ImpactEvidence

1. In order for second degree murder to apply, there mustbe evidence that a criminal homicide was committed duringthe perpetration of a felony. Where evidence presented is notsufficient to establish a jury question as to whether thekilling occurred during the perpetration of one of thefelonies enumerated at 18 Pa.C.S.A. Section 2502, an instruc-tion for second degree murder is not necessary.

2. A claim for ineffective assistance of counsel in the tim-ing of an objection to the prosecutor’s presentation of a stip-ulation concerning the defendant’s possession of a firearmwithout licensure, will fail when the record shows the objec-tion was raised as soon as the Commonwealth made thestatement regarding the stipulation.

3. In considering a claim of prosecutorial misconduct, theCourt focus is whether the defendant was deprived of a fairtrial. Proceeding with trial on rape and other chargesinvolved conduct that occurred before the homicide actswhich were the subject of this trial. The resulting felony con-victions in the prior trial and the Commonwealth offeringthose convictions as aggravating circumstances to showmotive was proper.

4. Proceeding with trial on rape and other charges, wherethose acts were prior to the acts in this trial, is not error.Furthermore, defendant was twice given timely notice of theCommonwealth’s intent to use any felony convictionsobtained in the other cases as aggravating circumstances.

5. The sentencing code does not limit victim impact evi-dence to statements made only by family members. Non-family members who have, based upon their relationshipwith the victims and relatives, insight into the effect of thetragedy on the family of the victims is permitted.Additionally, in this case, the defendant’s actions in killingboth his wife and son made it not possible for family mem-bers to testify. The best evidence as to the impact of thetragedy on the family would come from those who knew thefamily best, whether blood relatives or not.

(Linda A. Michler)

Mark Vinson Tranquilli for the Commonwealth.Kenneth A. Snarey for Defendant.

No. CC200109056. In the Court of Common Pleas ofAllegheny County, Pennsylvania, Criminal Division.

MEMORANDUM OPINION AND ORDER OF COURTManning, J., May 28, 2008—Before the Court are the

Post-Sentence Motions filed by the defendant, KennethHairston, following his conviction on two counts of CriminalHomicide and this Court’s imposition of sentences of deathbased upon the jury’s sentence for verdicts. For the reasonsset forth in this Memorandum Opinion, the Motions will beDENIED.

The defendant’s first claim is that the Court erred infailing to instruct the jury on the lesser included offense ofsecond degree murder. It is axiomatic that Court must onlycharge a jury on offenses where the evidence presentedwould reasonably support a verdict of guilty as to those


offenses. “In order for second degree murder to apply,there must be evidence that a criminal homicide was com-mitted during the perpetration of a felony.” Commonwealthv. Pursell, 724 A.2d 293, 305 (Pa. 1999) Where the evidencepresented is not sufficient to establish a jury question as towhether the killing or killings occurred during the perpe-tration of one of the felonies enumerated at 18 Pa.C.S.A.§2502, an instruction for second degree murder is not nec-essary. Commonwealth v. Williams, 732 A.2d 1167, 1182(Pa. 1999). A second degree murder instruction was notwarranted in this case because the facts did not supportsuch an instruction.

The defendant contended that a second degree murderinstruction was warranted because the evidence would havesupported the finding that one or both of the deaths in thiscase took place during the commission of the felony of arson.The evidence established otherwise. With regard to thedeath of the defendant’s son, Sean Hairston, the forensicpathologist from the Allegheny Coroner’s Office, Dr.Abdulrezak Shakir, testified unequivocally that the injuriesthat led to the victim’s death were two or three incidents ofblunt force trauma. This victim died while he was beingtreated at the hospital. He suffered two cardiac arrests, thefirst while he was being operated on and the second while inthe intensive care unit, and these episodes led to his death.(N.T., Vol. 2 at 138) Dr. Shakir found, to a reasonable degreeof medical certainty, that the cause of death was blunt forcetrauma to the head. He stated while being cross-examinedthat he saw no evidence in the hospital records that the vic-tim’s first cardiac arrest was the result of carbon monoxideor cyanide poisoning, as one would expect if the fire causedor contributed to the death, and that there was no evidencethat smoke inhalation caused the cardiac arrest. Finally, hetestified that he saw no evidence that carbon monoxidewould have contributed to the cardiac arrest and that theevidence indicated that the blunt force trauma “by itself”would have caused the death of Sean Hairston. (N.T., Vol. 2.143, 147) He added on redirect that a toxicology screening ofthe victim’s blood showed no evidence of carbon monoxideor cyanide in the blood. (N.T., Vol. 2. at 146)

The autopsy of the other victim, the defendent’s wife,Katherine Hairston, likewise revealed no evidence that thefire set by the defendant caused or contributed significantlyto her death. The forensic pathologist who conducted theautopsy on this victim, Shaun Ladham, M.D. testified that atoxicology screen showed no evidence of carbon monoxideor cyanide in her blood stream at the time of her death. Hestated further that the multiple wounds to her head andresulting trauma suffered by the brain led him to his opinionthat the cause of death was blunt force trauma.

The evidence of the defendant’s confession also support-ed the conclusion that the deaths were the result of hisassault with a sledge hammer rather than the fire. He testi-fied that he attacked both his wife and his son with the sledgehammer and then, after leaving the home to dispose of themurder weapon, returned and set a fire in the basement ofthe house. The evidence clearly did not support the con-tention that the deaths of Sean and Katherine Hairstonoccurred during the commission of the felony of arson. Theacts that led to their death occurred before the fire was setand, according to the medical evidence, the fire hadabsolutely no causal relationship to the deaths of the victims.Where there is no evidence supporting a particular offense,the Court does not err in refusing to give an instruction onthat offense. Commonwealth v. Cruise, 640 A.2d, 395, 407(Pa. 1994)

The Court would also finally point out that, because thedefendant was found guilty of first degree murder in this

case, he could have suffered no prejudice from the failure togive this instruction. The jury found beyond a reasonabledoubt that the defendant specifically intended to kill his wifeand his son. The fact that the jury found the element of spe-cific intent to have been established beyond a reasonabledoubt renders any failure to give an instruction on seconddegree murder, even if one had been warranted, harmlesserror. Commonwealth v. May, 656 A.2d, 1335 (Pa. 1995)

The defendant next raises a claim that counsel wasineffective in the timing of his objection to the prosecu-tor’s presentation of a pre-trial stipulation concerning thedefendant’s possession of a firearm without a license. ThisCourt would first note that because this ineffectivenessclaim can be addressed based upon the record as it exist-ed, an evidentiary hearing to explore counsel’s conductwas not necessary.

The test for evaluating counsel’s performance iswell known. First, the Court must determinewhether the issue underlying the claim of ineffec-tiveness has arguable merit. If arguable merit isestablished, then it must be determined whetherthe course chosen by counsel had some reasonablebasis designed to serve the interest of his client.Finally, if the first two elements identified aboveare established, the Court must determine if coun-sel’s conduct prejudiced the defendant or, in otherwords, had an adverse affect upon the outcome ofthe proceeding.

Commonwealth v. Howard, 645 A.2d, 1300, 1306 (Pa. 1994).The stipulation concerns an incident that occurred on

May 21, 2000 when the defendant was alleged to havethreatened the victim in the rape case, his stepdaughter,Chetia Hurtt, and her boyfriend, Jeffrey Johnson, with ahand-gun. That threat was related to the charges filedagainst the defendant at CC numbers 200208984 and200009862, which involved allegations that the defendantsexually assaulted Ms. Hurtt and then later threatened Ms.Hurtt and Mr. Johnson with this hand-gun. Evidence of thethe sexual assault charges was offered as the motive for thekillings in this matter. Moreover, comments made by thedefendant during the incident when he threatened Ms.Hurtt and Mr. Johnson also were admissible as evidence ofhis intent. The Commonwealth and defense counsel hadagreed, prior to trial, that the fact of non-licensure would beadmitted by stipulation. Subsequent to that pre-trial agree-ment, this Court limited the admissibility of certain aspectsof these prior bad acts. That ruling apparently causeddefense counsel to reconsider the stipulation. When theCommonwealth, nevertheless, began to offer that stipula-tion, defense counsel raised a timely objection. The partiesdiscussed the matter at sidebar at which time the Courtadvised the Commonwealth that although it was going topermit introduction of these prior bad acts, the Court didnot consider the fact of non-licensure relevant. The Court,therefore, sustained the defendant’s objection and advisedthe jury: “Alright ladies and gentlemen. The last commentsmade by the prosecutor are disregarded. There is no stipu-lation and no agreement and that is not part of the evidencein this case.”

The defendant’s suggestion that counsel was somewhatineffective with regard to this issue is without merit for sev-eral reasons. First, there is simply no merit to the underly-ing claim in that defense counsel did not raise a timely objec-tion. The objection was timely because it was raised as soonas the Commonwealth made the statement regarding thestipulation. The Court sustained the objection and cautionedthe jury to disregard what the Commonwealth had said about


the stipulation. It is not clear how the objection could havebeen any timelier. More important, the defendant could notpossibly have suffered any prejudice as a result of this state-ment by the Commonwealth. First, as the Court has pointedout, there was a proper cautionary instruction given and ajury is presumed to follow the instructions of the Court. Inaddition, whether the defendant was licensed to carry afirearm in 2000 or not could not possibly have affected theoutcome of his trial on the charge of killing his son and hiswife. The fact that the defendant possessed and used afirearm to threaten Ms. Hurtt and Mr. Johnson was admissi-ble because those facts were relevant to motive and intent.The jury properly heard testimony concerning the defen-dant’s sexual assault on Ms. Hurtt as well as the incidentwhere he threatened Ms. Hurtt and Mr. Johnson with thegun. The Court properly determined that evidence that hewas not licensed to have that firearm in 2000 was not rele-vant to the prior bad acts evidence but the fact that the juryheard this information could not possibly have affected theoutcome of this trial.

The defendant’s third claim is closely related to the pre-ceding claim. In this claim, he contends that the prosecutionengaged in misconduct by offering that stipulation when itshould have known, based upon pre-trial rulings, that theCourt was not going to permit introduction of evidence con-cerning the defendant’s non-licensure. In evaluating a claimof prosecutorial misconduct, the focus of the Court must beon whether the defendant was deprived of a fair trial and notwhether he was deprived of a perfect trial. Commonwealth v.Kemp, 753 A.2d, 1278, 1282 (Pa. 2000). The prosecutors con-duct here did not deprive the defendant of a fair trial. First,it is not clear that the prosecutor offered the stipulationknowing that it was objectionable. There had been an agree-ment pre-trial as to its admissibility and that agreement wasonly affected by this Court’s ruling limiting that evidence. Inaddition, even if the prosecutor should have known not tooffer the stipulation, the defendant was not prejudiced by thefact that this jury heard that he was not licensed to carry afirearm in May of 2000. In addition, the evidence in this caseas to the defendant’s guilt in the killing of his wife and sonwas overwhelming. It consisted of his own admissions aswell as the physical evidence consistent to what he told thepolice upon his arrest and in subsequent statements.Although the fact that he was not licensed to carry a firearmwas inadmissible, evidence showing the defendant’s use ofthat firearm to threaten the victim in his rape case wasadmissible. It is inconceivable that the jury could haveplaced any importance on the fact of non-licensure in light ofthis other evidence showing far more egregious conductinvolving the firearm such as his using it to threaten the vic-tim in his sexual assault case.

The defendant next contends that the Court erred inintroducing evidence showing the defendant’s prior sexualconduct with his stepdaughter. This claim is wholly withoutmerit. This evidence consisted of testimony from Ms. Hurttconcerning the defendant’s five year long pattern of sexualassault upon her as well as his threats of physical harm toher and the rest of his family if she persisted in cooperatingwith the prosecution of him for these offenses.

The admissibility of evidence rests within the sound dis-cretion of the trial court and such a decision will be reversedonly upon a showing that the trial court abused its discretion.Commonwealth v. Boczkowsky, 842 A.2d, 75, 93 (Pa. 2004).Evidence is relevant if it logically tends to establish a mate-rial fact in the case, tends to make a fact at issue more or lessprobable, or supports a reasonable inference or presumptionregarding the existence of a material fact. Commonwealth v.Hawk, 709 A.2d, 373, 376 (Pa. 1998). Relevance is estab-

lished if the evidence sheds light upon or advances theinquiry in which the fact finder is involved and if the evi-dence is logically relevant, it is admissible. Commonwealthv. Wax, 571 A.2d, 386, 388 (Pa.Super. 1990).

Moreover, although motive is not an essential element ofany crime, it is always relevant and admissible. Pa. Rule ofEvidence 404 (b)(2) provides: “Evidence of other crimes,wrongs, or acts may be admitted for other purposes, such asproof of motive, opportunity, intent, preparation, plan,knowledge, identify or absence of mistake or accident.” Thegeneral rule regarding the admissibility of other crimes’ evi-dence was set forth in Commonwealth v. Miles, 681 A.2d,1295 at 1304 (Pa. 1996): “As a general rule, evidence that adefendant has committed another crime wholly independentand unconnected with that for which he is on trial is irrele-vant and inadmissible except under special circumstances[such as] where the proper testimony tends to establish thedefendant’s motive for the crime or crimes charged.”However, to be admissible under this exception, evidence ofa distinct crime, even if relevant to motive, “must be givensufficient ground to believe that a crime currently being con-sidered brought about or was in some way caused by theprior set of facts and circumstances.” Commonwealth v.Drumheller, 808 A.2d, 893, 906 (Pa. 2002).

In this case, the defendant’s murder of his wife and sonarose directly out of his concern over his upcoming trial forthe sexual assault of his stepdaughter. It provided hismotive for killing his wife and son. This motive was estab-lished both through his own admissions following his arrestand through evidence from Ms. Hurtt and Mr. Johnson con-cerning comments made by the defendant when he threat-ened them in May of 2000. According to Ms. Hurtt, thedefendant said that he would not go to jail and that “we canall die today.” (N.T. Vol. 1 at 49) She further explained thatthis was consistent with threats he had made in the pastwhen he had told her that “he would take us all out of here”which she understood to mean that “he would kill me andmy family.” (N.T. Vol. 1 at 50)

The evidence of this conduct was clearly admissible inthat the subsequent murders grew out of and/or were causedby the defendant’s involvement in these prior criminal inci-dents involving his stepdaughter. The Court would also notethat the murders were committed shortly before the trial onthe charges involving Ms. Hurtt was to begin. His conduct inkilling his son, wife and apparently attempting to take hisown life was simply the fulfillment of the threats that hemade toward Ms. Hurtt as a result of her cooperating withthe police in his prosecution. Finally, this Court gave com-plete and proper instructions to the jury regarding what usethey were to make of this evidence of prior bad conduct onthe part of the defendant. At the time the evidence wasoffered, the Court told the jury the following:

Ladies and gentlemen, before we go any further,you must understand you are going to get evidencefrom this witness about other offenses, othercrimes, other wrongs or bad acts as the law refersto them, that the defendant is alleged to have com-mitted for which he is not charged in this case. Thiscase charges him simply with the criminal homi-cide of the two victims here.

This evidence is not offered for the purpose ofdemonstrating he is a bad individual and, there-fore, must be guilty of the crimes here. In order foryou to convict him of the crimes here, you must besatisfied that the Commonwealth establishes theelements of the offenses that related to this casebefore you beyond a reasonable doubt. The evi-


dence is being offered solely for the limited pur-pose of establishing a motive for the criminal actsthat occurred, the motive for the criminal homi-cide, and must not allow this type of evidence ofother acts by the defendant to stir up your emotionsto the point where you no longer determinewhether or not he has committed these offenses onthe evidence presented.

Understand, it is solely for the purpose of motiveand I will give you additional instructions on that atthe conclusion of the case.

(N.T. Vol. 1 at 34-36) The Court then gave similar instruc-tions during its final charge to the jury. They are found atpages 146 through 148 of Volume 3 of the trial transcript.Both because this evidence was admissible for the purposeof establishing motive and because the Court provided prop-er and timely instructions to the jury, the claim that this evi-dence should not have been admitted or that it unfairly prej-udiced the defendant is without merit.

The defendant next claims that the verdicts of guilty offirst degree murder with regard to both victims are againstthe weight of the evidence. The challenge to a verdict on thegrounds that it is contrary to the weight of the evidence con-cedes that there is sufficient evidence to sustain the verdict.Commonwealth v. Cruz-Centeno, 668 A.2d, 536 (Pa.Super.1995). A new trial is warranted only when the verdict, “is socontrary to the evidence as to shock one’s sense of justiceand make a reward of a new trial imperative.” Id., 668 A.2dat 540.

The verdict in this case was completely consistent withthe evidence presented and amply supported by that evi-dence. The evidence established that the defendant wasangry and upset over his pending trial on the rape andassault charges involving his stepdaughter. He hadexpressed to her what the consequences would be if he werefaced with going to jail. On May 21, 2000, he threatened tokill his family rather than go to jail. These were threats thatshe had heard in the past. When that incident led to hisbeing charged with the sexual offenses and that particularassault, he was faced with the prospect of going to jail. Ashis trial date approached, he became determined to carryout his threat. This is amply supported by the defendant’sown inculpatory statements which, although self-serving attimes, fully supported the verdicts of guilty of first degreemurder rendered by the jury in this case. During his firstformal interview after his arrest on June 19, 2001, he toldthe detectives that he had awakened on June 11th, worryingabout the trial that was to begin in two weeks on the chargesof assaulting his stepdaughter. While worrying about that,he became agitated, retrieved a sledge hammer, and struckhis wife in the head with it several times, causing her death.He woke his son up and told him to go downstairs and lay onthe couch for a few more minutes before he left for school.His son did so and, while he was sleeping, the defendantstruck him on the side of the head with the same sledgehammer twice. He also admitted that he returned to strikeKatherine again when he thought that she was still alive.The defendant’s description of his conduct was completelyconsistent with the testimony of the forensic pathologist asto the victims’ cause of death. It is inconceivable that thejury could have reached any verdict but guilty of firstdegree murder given the overwhelming and undisputed evi-dence offered. The verdicts were not against the weight ofthe evidence.

The defendant next claims that the Commonwealthengaged in prosecutorial misconduct because they delayedprosecution of this case to obtain felony convictions in the

rape and assault cases referred to earlier in this Opinion.According to the defendant, the Commonwealth did this sothat they could offer those convictions as aggravating cir-cumstances under 42 Pa.C.S.A. §9711 (d)(9). This claim iswithout merit. The offenses charged in the other two casesoccurred prior to the instant offenses. The charges broughtat CC 200008984 occurred on or about May 21, 2000 andwere initiated on that date when the defendant was arrest-ed. The charges at CC 200009862 were filed on June 12,2000 and involved conduct that occurred, according to theinformation, on various dates between 1993 and 2000. Thedockets revealed that the defendant was arraigned on bothof those cases on August 2, 2000. He appeared for a pre-trialconference on September 8, 2000 and his trial was original-ly scheduled for January 30, 2001. On that date, at thedefendant’s request, the trial was postponed to June 25,2001. The murders were committed on June 11, 2001 and onJune 21, 2001 the defendant presented a Motion to Continuethe June 25th trial date. It was rescheduled for December10, 2001 when the case proceeded to trial. Obviously, it wasthe defendant’s conduct in killing his son and his wife thatled to the further delay from June of 2001 to December of2001. The suggestion that the Commonwealth somehowmanipulated the order in which these cases were tried issimply absurd given these facts. The cases were tried in theappropriate order and there is nothing in the record to sug-gest that the Commonwealth did anything improper in doingso. In fact, had the cases been tried in reverse order, thedefendant would thereby have benefited from his conduct inkilling his wife and son prior to commencing trial on therape case.

The focus when the Court is considering a claim of pros-ecutorial misconduct is whether the defendant was deprivedof a fair trial. It is clear that that did not occur in this case.The defendant’s trial on these charges was not affected inany way whatsoever by anything that the Commonwealthdid. Accordingly, there is no merit to the defendant’s con-tention that the Commonwealth violated his right to a fairtrial by proceeding on the rape and other charges beforeproceeding on this matter.

Defendant next contends that this Court erred in charg-ing the jury on the statutory aggravating factor found at 42Pa.C.S.A. §9711 (b)(9) when the Commonwealth failed togive timely notice of that aggravating circumstance. TheCommonwealth’s obligation to provide notice of aggravatingcircumstances is set forth in Pa. Rule of Criminal Procedure801 which provides:

The Commonwealth shall file a notice of aggravat-ing circumstances that the Commonwealth intendsto submit at the sentencing hearing and contempo-raneously provide the defendant with a copy ofsuch notice of aggravating circumstances. Noticeshall be filed at or before the time of arraignment,unless the attorney for the Commonwealthbecomes aware of the existence of an aggravatingcircumstance after arraignment or the time for fil-ing is extended by the Court for cause shown.

Pa. R. Crim. P. 801. The comment to Rule 801 provides thefollowing guidance:

The rule provides for, pre-trial disclosure of thoseaggravating circumstances that the Commonwealthintends to prove at the sentencing hearing. SeeSentencing Code, 42 Pa. C.S. §9711 (d). It is intend-ed to give the defendant sufficient time and infor-mation to prepare for the sentencing hearing.Although the rule requires that notice generally be


given no later than the time of arraignment, itauthorizes prompt notice thereafter when a cir-cumstance becomes known to the attorney for theCommonwealth at a later time. The language “forcause shown” contemplates, for example, a situa-tion in which, at the time of arraignment, an ongo-ing investigation of an aggravating circumstancemust be completed before the attorney for theCommonwealth can know whether the evidence issufficient to warrant submitting the circumstanceat the sentencing hearing.

In this matter, the homicide criminal information was filedon August 2, 2001. Attached to that was a notice that theCommonwealth intended to seek the death penalty whichidentified a single aggravating circumstance, that found at§9711 (d)(11), related to the defendant having been convict-ed of another murder committed either before or at the timeof the offense at issue. At that time, the parties were certain-ly aware that the defendant had pending felony chargeswhich, if he were convicted of those offenses, would provideadditional aggravating circumstances. In fact, at a sentenc-ing conference, held on the record on September 20, 2001,the prosecutor stated that if convictions were obtained inthat case for felonies, then the Commonwealth would usethat as a second aggravating circumstance at the time of thehomicide trial. This certainly put the defendant on noticethat the Commonwealth intended to use any felony convic-tions obtained in the other cases as aggravating circum-stances. The defendant was found guilty by a jury of thoseother felony charges on December 14, 2001. He was sen-tenced on February 28, 2002. The next day, March 1, 2002,the defendant was formally arraigned on the homicidecharges in this case. On March 14, 2002, the Commonwealththen filed its second Notice of Intention to Seek the DeathPenalty which added the aggravating circumstances found in9711 (d)(11).

It is clear from the rule and its comments that the inten-tion of the rule is to provide notice to the defendant of theaggravating circumstances the Commonwealth intends toproceed on so that the defendant is not surprised therebyand may prepare an appropriate defense. Although theCommonwealth could not provide official notice of the sec-ond aggravating circumstance until after the defendant wassentenced on those felonies on February 28, 2002, the defen-dant was, in fact, given notice that if those cases resulted inconvictions, that, aggravating circumstance would be used athis homicide trial. He clearly had all the notice that the rulerequires and contemplates. In fact, he had significantly morenotice in that he was given notice that the Commonwealthwould use those convictions, if obtained, as an aggravatingcircumstance, well before the rule required theCommonwealth to give such notice. Because the defendantwas given the notice required by the rule, this claim is with-out merit.

The defendant’s final claim is that the Court erred in per-mitting non-family members of the victims to testify as to theimpact that the death of the victim had on the family. 42 Pa.C.S.A. §9711 (a)(2) provides the following with regard to vic-tim impact evidence:

In the sentencing hearing, evidence concerningthe victim and the impact that the death of thevictim has had on the family of the victim isadmissible. Additionally, evidence may be pre-sented as to any other matter the Court deemsrelevant and admissible on the question of thesentence to be imposed. Evidence shall includematters relating to any of the aggravating or mit-

igating circumstances specified in § (d) and (e)and information concerning the victim in theimpact that the death of the victim has had on thefamily of the victim.

42 Pa. C.S. §9711 (a)(2). The defendant’s argument seemsto be that because the evidence pertaining to the impactthat the victims’ deaths had on the family came from per-sons other than family members, it was somehow inadmis-sible. The sentencing code does not limit such evidence tofamily members. The evidence that the defendant com-plains about was relevant to the impact that these victims’deaths had on their surviving family members. The statutepermits evidence concerning the victim and the impact thatthe death of the victim had on the victim’s family. Any evi-dence from any source that is relevant to that inquiry isadmissible. Here, the Commonwealth’s two witnesses wereClayton Mariner, who had been a friend of Kathy Hairstonand her family for more than thirty-eight (38) years, andAvis Beck, who was the girlfriend of Kathy Hairston’sbrother for ten (10) years. Obviously, both of these individ-uals were able to offer insight into the effect that thistragedy had on the family of the victims. While, normally, itwould perhaps be best for a child to speak of the loss oftheir mother or for a mother to speak of the loss of theirchild, the defendant’s actions in killing both his wife andhis son made this not possible. The best evidence as to theimpact of this tragedy on the family would come from thosewho knew the family best, whether they are blood relativesor not. It is obvious from the record of this proceeding,moreover, that this Court was aware of the limits to beplaced on such testimony. When the Commonwealth askedof the witness Mariner what effect the deaths had on himpersonally, defense counsel’s objection was sustained andthe Commonwealth rephrased the question to focus in onthe effect on the family of the victims rather than on thiswitness himself. (N.T. Vol. 4 at 57-58) The questioning ofboth witnesses focused on the effect on the family. Mostimportantly, the Court instructed the jury that they wereonly to consider the effect that the deaths had on the fami-ly members of the victims. (N.T. Vol. 4 at 231-232)


ORDER OF COURTAND NOW, this 28th day of May, 2008, for the reasons set

forth in the Memorandum Opinion attached hereto, thedefendant’s Post Sentence Motions are hereby DENIED. Thedefendant is advised of the following:

1. He has the right to appeal this Order and must doso within thirty (30) days of the date of this Order;

2. He has the right to the assistance of counsel inthe preparation of any appeal;

3. If he is indigent, he has the right to proceed onappeal without the payment of costs and with courtappointed counsel as provided for in Pa. R. Crim. P.122;

4. He has the right to qualified bail under Rule 521(B).

The Clerk of Courts shall serve copies of this Order uponcounsel for the defendant at the address set forth below byregular mail and upon the Office of the District Attorney ofAllegheny County pursuant to Pa. R. Crim. P. 114 (B).



Commonwealth of Pennsylvania v.Joseph E. Hill

Criminal Law—Post-Sentencing Issues—Post-ConvictionRelief Act—Ineffective Assistance of Counsel

1. Multiple PCRA petitions filed claiming ineffectiveassistance of counsel are procedurally untimely and aredenied when the record establishes that defendant was awarethe sentences would be consecutive and not concurrent.

2. A plea is not unlawfully induced by counsel’s perform-ance when he does not question the reliability of the mannerin which guilt was determined.

(Linda A. Michler)

Ronald W. Wabby for the Commonwealth.Kenneth Snarey for Defendant.

Nos. CC 199000108 and 199001683. In the Court of CommonPleas of Allegheny County, Pennsylvania, Criminal Division.

OPINIONManning, J., June 6, 2008—The defendant, Joseph

Edward Hill, was charged at CC No. 199000108 with onecount of criminal homicide (18 Pa. C.S. §2501(a)). At CC No.199001683, he was charged with one count of robbery (18Pa. C.S. §3701(a)(1)(iii)) and one count of criminal conspir-acy (18 Pa. C.S. §903(a)(1)). On January 27, 1991, he enteredpleas of guilty to third degree murder at CC 199000108 andto robbery at CC 199001683. The criminal conspiracycharge was withdrawn. He appeared for sentencing on April11, 1991 and was sentenced to not less than seven (7) normore than twenty (20) years on charge of homicide and tonot less than three (3) nor more than ten (10) years on thecharge of robbery. The sentences were ordered to run con-secutively, for an aggregate sentence of not less than ten(10) nor more than thirty (30) years imprisonment. On April12, 1991, the Commonwealth filed a Petition to ModifySentence, claiming that the Court erred in imposing sen-tences that were in the mitigated range of the sentencingguidelines. That Motion was denied. Neither theCommonwealth nor the defendant appealed.

On September 4, 1991, the defendant fled a pro se Motionfor Post-Conviction Collateral Relief in which he claimedthat trial counsel was ineffective for failing to file an appealchallenging the discretionary aspects of his sentence andthat his sentence was illegal. On July 20, 1992, this Court dis-missed the defendant’s pro se Petition on the basis that therelief he was seeking, a modification of his sentence fromconsecutive to concurrent, was not cognizable under thePost-Conviction Relief Act. Although the defendant filed anappeal from that denial, he later withdrew that appeal andtook no further action with regard to this matter untilDecember 20, 2005, when he filed a second pro se PCRAPetition. Counsel was appointed and an Amended Petitionwas filed contending that trial counsel was ineffective in fail-ing to object to the sentence imposed as well as in failing tofile a Post-Sentence Motion and/or a Notice of Appeal. ThisCourt denied that PCRA Petition on the basis that it wasuntimely, the defendant’s judgment of sentence havingbecome final nearly thirteen (13) years prior to the filing ofthis Petition.

On April 15, 2008, the Superior Court reversed the dis-missal of the PCRA Petition, holding that the Court haderred in 1992 when it dismissed the first PCRA withoutappointing counsel. The Superior Court remanded the mat-ter to this Court for the appointment of counsel. In footnotenumber 5, the Superior Court noted that if this Court deter-

mined that the defendant had requested that counsel file adirect appeal, this Court should reinstate the defendant’sright to file a Post-Sentence Motion. The defendant filed aSecond Amended PCRA Petition on April 23, 2008 in whichhe claimed that counsel was ineffective for failing to file aPost-Sentence Motion. On May 6, 2008 this Court reinstatedthe defendant’s post-sentencing rights and a Post-SentenceMotion was filed by counsel on May 13, 2008. In that motion,the defendant raised the following claim:

Attorney Brennan was ineffective—in violation ofArticle 1, Section 9, of the PennsylvaniaConstitution and the 6th and l4th Amendments ofthe United States Constitution—for representing todefendant the defendant would receive concurrentsentences under the plea agreement for his plea ofguilty when such representation was false and, haddefendant known concurrent sentences were notrequired under said agreement, defendant wouldnot have plead guilty but would have, instead, pro-ceeded to trial.

For the reasons that follow, the defendant’s Post-SentenceMotion will be DENIED.

The defendant’s requests that the Court either find thatthis plea was rendered involuntary by counsel’s ineffective-ness or that his sentences should run concurrently. Turningfirst to the claim that his plea was not valid, the initialinquiry is always “whether the issue/argument/tactic whichcounsel has foregone and which forms the basis for theassertion of ineffectiveness is of arguable merit; for counselcannot be considered ineffective for failing to assert a mer-itless claim.” Commonwealth v. Durst, 559 A.2d 504, 505 (Pa.1989). If this threshold is met, it must next be determinedwhether the particular course followed by counsel had a rea-sonable basis designed to effectuate his client’s interests. Id.The final inquiry is to determine whether counsel’s commis-sion or omission prejudiced the defendant. Id. In allegingcounsel’s ineffectiveness, a defendant must allege sufficientfacts in his Petition upon which the Court can conclude thattrial counsel may have been ineffective because courts willnot consider such claims in a vacuum. Id.; Commonwealth v.Pettus, 424 A.2d 1332 (Pa. 1981).

Where a defendant claims that his plea was unlawfullyinduced by counsel’s ineffectiveness, he must plead suffi-cient facts, which, if true, prove that counsel’s ineffective-ness caused him or her to enter the guilty plea.Commonwealth v. Lutz, 424 A.2d 402 (Pa. 1981). A plea is notunlawfully induced by counsel’s performance that does notquestion the reliability of the manner in which guilt wasdetermined. Commonwealth v. Laszczynski, 715 A.2d 11851187 (Pa.Super. 1998). It also must be remembered a guiltyplea may be withdrawn after sentencing only upon a “show-ing of prejudice on the order of manifest injustice.”Commonwealth v. Shaffer, 446 A.2d 591, 593 (Pa. 1982).

The starting point of this analysis must be the record of theguilty plea and sentencing hearings. When the defendantentered his pleas, the prosecutor, Deputy District Attorney W.Christopher Conrad, set forth the terms of the plea agreement:

MR. CONRAD: Yes, Your Honor, if I may state it. Inexchange for Mr. Hill’s plea of guilty on theHomicide indictment to a charge of Third DegreeMurder, and to the related charge of Robbery onthe other indictment, the Commonwealth wouldallow sentencing to take place by this Court afterthe consideration of a pre-sentence report, andwould also move presently as part of that agree-ment and condition, upon the acceptance by the


Court, to dismiss the unrelated Robbery chargefiled at CC No. 9002990, which would have beenscheduled before the Honorable Henry Smith onFebruary 26, 1991. It involves an alleged robberythat took place at Hotlicks out on Baum Boulevardon February 26, 1989, exactly two years from whenit was going to be tried.

N.T., 1/22/91, pp. 2-3. The Court asked the defendant’sthen counsel, Deputy Public Defendant William Brennan, ifthat was his understanding of the plea agreement, to whichMr. Brennan responded, “Yes, Your Honor.” (N.T., 1/22/91, p.3). The Court then proceeded to explain to the defendant thenature of the offenses with which he, was charged and thepossible sentences he faced on each. As to CC No. 199001683,he was told that the charge of criminal conspiracy carried amaximum sentence of ten years incarceration and that therobbery charge carried a maximum penalty of twenty yearsincarceration. He was advised that the criminal conspiracycharge was being withdrawn in consideration of his plea.(N.T., 1/22/91, pp. 4-5). The elements each of the degree ofmurder were then explained to him as were the elements ofvoluntary manslaughter. (N.T., 1/22/91, pp. 6-10). He wasadvised that first and second degree murder carried manda-tory life sentences and that third degree murder carried amaximum penalty of twenty years in prison. The defendantindicated that he understood the elements of each of thecrimes with which he was charged.

The Court showed the defendant the written plea collo-quy he had completed and confirmed with him that he hadunderstood and truthfully answered each question on thecolloquy. He said that he did. (N.T., 1/22/91, p. 9). The Courtreviewed at length with the defendant the jury selectionprocess, his right to a non-jury trial, the presumption ofinnocence and the burden of proof that the Commonwealthwould have in order to obtain a conviction. (N.T., 1/22/91, pp.9-12). The Court further explained to him that because hewas pleading guilty, Commonwealth would not be required topresent witnesses but, rather, would summarize the evidencethat established his guilt of the offenses to which he wasentering his pleas of guilty. He was advised that if he plead-ed guilty, his right to appeal would be limited to whether hisplea was voluntary, whether the Court had jurisdiction overhim, whether the sentence imposed was illegal and whetherMr. Brennan was effective. (N.T., 1/22/91, p. 14). The defen-dant stated that he understood all of this.

Of particular importance to the issue raised by the defen-dant in his Post-Sentence Motion, the following exchangetook place between the Court and the defendant:

THE COURT: Other than the plea agreement,which has been stated on the record, has anyonemade any promises or threats to you in order to getyou to enter a plea of guilty?

MR. HILL: No, sir.

THE COURT: Were you on probation or parole atthe time these events occurred?

MR. HILL: No, sir.

THE COURT: Are you satisfied with Mr. Brennan’srepresentation of you?

MR. HILL: Yes, sir,

THE COURT: Why are you pleading guilty, sir?

MR. HILL: Because I’m guilty.

(N.T., 1/22/91, p. 15). Later, Mr. Conrad reviewed with thedefendant the possible sentences he could receive based

upon his plea of guilty:

MR. CONRAD: That is also, as the Court indicatedoriginally, a felony of Third Degree Murder, andcarries with it a maximum period of incarcerationof twenty (20) years. Do you understand that?

MR. HILL: Yes, sir.

MR. CONRAD: And that in this particular matter,the Court could sentence you up to twenty (20)years, ten (10) to twenty (20) years, on the ThirdDegree Murder, and ten (10) to twenty (20) yearson the Robbery. Those do not merge for purposes ofsentencing as far as this plea agreement goes. Doyou understand that?

MR. HILL: Yes, sir.

MR. CONRAD: So, it’s entirely up to the Court, leav-ing you with a sentence of perhaps twenty (20) toforty (40) years should the Court decide to sentenceyou to the maximum sentences due under law?

MR. HILL: Yes, sir.

MR. CONRAD: You understand that theCommonwealth’s position that your involvement inthe case could have risen to a felony of Murder ofthe Second Degree, which carries a life sentence,and/or dismissing both First and Second Degree aspart of this plea agreement?

MR. HILL: Yes, sir.

(N.T., 1/22/91, pp. 16-17) (Emphasis added).

The defendant returned for sentencing on April 11, 1991.At that time, defendant’s counsel, in the defendant’s pres-ence, made the following comments:

MR. BRENNAN: Yes, Your Honor, if I might. As theCourt’s aware, we entered a general plea to crimi-nal homicide, third degree robbery as well, with norecommendation to be made by the DA’s office. Weread the pre-sentence report, my client read that aswell. There are not any challenges we indeed wishto make or any changes we recommend as to thepre-sentence.

Your Honor, I would note, Your Honor, as theCourt’s aware, my client had a robbery in 1969. Hehad a robbery in 1975. He was released in 1983. Hefrankly was without any involvement with the lawfrom 1983 to this incident did indeed happen. At alltimes, Your Honor, as well, he has always been fullyemployed and we would ask the Court to sentenceaccordingly.

We would ask the Court to sentence my client inthe standardized range with an appropriate sen-tence, Your Honor. We also ask the Court to weighthe possibility of giving my client a concurrent sen-tence on the Criminal Homicide and Robbery mat-ters as well.

(N.T., 4/11/91, pp. 3-4) (Emphasis added). Later, the defen-dant made the following comment:

DEFENDANT: I understand the nature of thecrime and the seriousness. It was an unfortunatething and I am very sorry that it happened. At notime did I know this was going to happen and Iguess I feel very responsible for it, although I didnot know at no time that this would occur. I knowthe feeling of losing one because I lost my mother


and I know that it is a great grief.

(N.T., 4/11/91, p. 7) The Court then proceeded to impose sen-tences of not less than seven (7) nor more than twenty (20)years on the homicide charge and not less than three (3) normore than ten (10) on the robbery charge and ordered thatthey run consecutive for an aggregate sentence of not lessthan ten (10) nor more than thirty (30) years. The sentencewas at top end of the mitigated range of sentences.

The defendant only had one question after sentence wasimposed. He asked the Court whether with that sentencecame an automatic parole and the Court explained that aslong as he behaves himself, he would be considered forparole at the expiration of his minimum, but that whether hewas parole then would depend upon his conduct within theinstitution and action taken by the parole board.

The record in this matter also includes the Petition filedby counsel, which was verified by the defendant, and thecertification of witnesses prepared by counsel and attachedto that Petition. In the certification of witnesses, counselaverred that the defendant would testify as follows:

Attorney Brennan told him, prior to pleading guilty,the plea agreement in this matter included concur-rent sentences. If he knew the concurrent sen-tences weren’t required under the plea agreement,he would not have pleaded guilty but would,instead, have proceeded to trial. He wants to pur-sue any and all requests/claims to have his sen-tences run concurrent by filing Post-SentenceMotions and, if necessary, an appeal. He told attor-ney Brennan that he thought his consecutive sen-tences were illegal and wanted the sentences to runconcurrent and that attorney Brennan was to dowhatever he had to get concurrent sentences.

PCRA counsel also provided the following certification as towhat trial counsel, William E. Brennan, would say if calledas a witness:

He was not notified, within the period for timely fil-ing Post-Sentence Motion or an appeal from thejudgment of sentence, by Mr. Hill that Mr. Hill asunhappy with the plea and sentence or wished topursue such a Motion or appeal. He did not consultwith Mr. Hill about filing/pursuing such a Motionor appeal because he didn’t believe Mr. Hill, or arational defendant in the same position, would wantto pursue such a Motion or appeal since the pleaagreement was open as to the length of sentenceand was accepted and Mr. Hill was aware of thepossible ranges of sentences and received mini-mum sentences which were either at or below thebottom end of the standard range of the sentencingguidelines which were applicable to the offenses onwhich sentence was imposed.

The record described above establishes that before thedefendant entered his plea of guilty, he was advised, in opencourt, that he faced possible maximum sentences of twentyyears on the homicide charge and twenty years on the rob-bery charge. He was specifically told that the Court couldimpose those sentences separately so that he faced the pos-sibility of a sentence as long as twenty to forty years. Inresponse to these advisements, he stated, under oath, that heunderstood the sentences he was facing. He also stated thathe understood that if he chose to go to trial and was convict-ed of either first or second degree murder, he could be sen-tenced to life imprisonment. He testified that he had read,understood and truthfully answered all of the questions set

forth in the guilty plea colloquy. At sentencing, after theCourt imposed consecutive sentences and explained to thedefendant that his sentence was, in the aggregate, not lessthan ten (10) nor more than thirty (30) years, the defendantdid not have any questions concerning the fact that his sen-tences would run consecutively rather than concurrently. Heonly asked the Court whether he would be eligible for paroleat the end of his minimum sentence.

The fact that the defendant now represents in hisPetition that he was told by his attorney that he wouldreceive concurrent sentences does not entitle him to an evi-dentiary hearing to test the veracity of that assertion.Where, as here, the record from the guilty plea colloquy andsentencing hearing unequivocally establishes that thedefendant was advised of the possibility of consecutive sen-tences and told the Court that he understood that and, moreimportantly, that he was satisfied with the representation ofcounsel, it is not necessary for the Court to hold a hearing.It is axiomatic that a criminal defendant who agrees toplead guilty has a duty to answer questions truthfully.Commonwealth v. Brown, 363 A.2d 1249 (Pa.Super. l976).Where a colloquy has been conducted in which the possibleseverity of the sentences which the defendant could receivewas explained, a defendant cannot be permitted to seekrelief on the basis that he lied to the Court regarding hisunderstanding of the effects of a guilty plea and that thoselies were induced by the promises of counsel. While it iscertainly true that the defendant hoped and possibly expect-ed to receive concurrent sentences in this case, expecta-tions regarding sentencing do not vitiate guilty pleas.Commonwealth v. Sanutti, 312 A.2d 42 (Pa. 1993). Thedefendant will not be afforded relief based on his claim thathe lied when he told this court at the time of his plea that heunderstood that he could be sentenced for as much as twen-ty to forty years, that he lied when he said that no promisesother than the plea agreement had been made to him toinduce him to plead guilty and that he lied when he said thathe was satisfied with the representation of his attorney.

This case is distinguishable from the recent decisions ofthe Superior Court in Commonwealth v. Kersteter, 877 A.2d466 (Pa.Super. 2005), Commonwealth v. Hickman, 799 A.2d136 (Pa.Super. 2002) and Commonwealth v. Diaz, 913 A.2d871 (Pa.Super. 2006). In Kersteter and Hickman, theSuperior Court held that the pleas were induced through theineffectiveness of counsel where the record made it clearthat the defendants were advised that they would be eligiblefor boot camp, when, in fact, they were statutorily ineligiblefor boot camp. In Diaz, the Superior Court remanded thematter for an evidentiary hearing where the defendantclaimed that his attorney had advised him prior to the pleathat he would be eligible for boot camp. These cases are dis-tinguishable because the record in those cases either sup-ported the defendant’s claims or, in Diaz, did not explicitlycontradict the claim.

Here, however, the record is absolutely clear that thisdefendant was told that he could receive consecutive sen-tences. He was explicitly told that he faced a sentence of upto twenty (20) to forty (40) years if he entered pleas of guilty.There is no possibility of confusion in this case between whatthe defendant claims his attorney told him and what was saidin open Court. The defendant was under oath when heacknowledged that no promises, other than the plea agree-ment, had been made to him by anyone to induce his plea. If,as he now contends, he was promised by his attorney that hissentences would be concurrent, then he committed perjurywhen he told the Court that no other promises had beenmade. Moreover, he stood silent after it was explained to himthat he faced a sentence of between twenty (20) and forty


(40) years should the Court decide to sentence him to themaximum possible sentences. Frankly, it does not matterwhether the defendant would testify under oath at a hearingon this Motion that his attorney represented to him that hewould receive concurrent sentences. He cannot challengethe validity of this plea by claiming, that he lied at the timeof his plea. Finally, it is also important that if called to testi-fy in this matter, counsel would testify that he did not givethe advice that the defendant contends was given and, more-over, that the defendant never brought up the issue of chal-lenging his sentence during the time period during whichPost-Sentence Motions could have been timely filed.

For these reasons, the defendant’s Post-Sentence Motionis DENIED.


Commonwealth of Pennsylvania v.Kenneth Stephen Prysock

Right to Counsel—Suppression

1. Since the police had probable cause to stop, investigateand later arrest Defendant, no error was committed in deny-ing the Defendant’s motion to suppress the narcotics foundin the search of his person.

2. When the Defendant was granted a continuance so thathis public defender could file pre-trial motions and to pri-vately obtain an attorney of his choice, the Court did notabuse its discretion in denying the Defendant another post-ponement on the new trial date to obtain new counsel.

(Carol Sikov Gross)Michael Streily for the Commonwealth.Suzanne Swan for Defendant.

No. CC200703322. In the Court of Common Pleas ofAllegheny County, Pennsylvania, Criminal Division.

OPINIONDurkin, J., May 30, 2008—The Defendant, Kenneth

Prysock was charged with Possession with the Intent toDeliver,1 and Possession of a Controlled Substance.2 Prior totrial, a motion to suppress was filed regarding the validity ofthe stop and arrest of the Defendant. Following a hearing onNovember 1, 2007, the Defendant’s motion was denied. TheDefendant then proceeded to a jury trial, and was foundguilty as charged. On January 29, 2008, the Defendant wassentenced to 3 1/2 to 9 years in prison.

The Defendant, through counsel, filed a timely appeal onFebruary 26, 2008. On May 19, 2008, a Statement of ErrorsComplained of on Appeal was filed alleging that theDefendant’s suppression motion should have been granted,and that the Defendant was deprived of his right to counsel ofhis choice when this Court denied requests for a delay in theproceedings for the Defendant to retain a private attorney.

The testimony presented at the suppression hearingshowed that the police received information that an individ-ual nicknamed “K” was using a cellular telephone to sellcrack cocaine and heroin. The police, knowing the telephonenumber of the phone in question, called the cell phone in anattempt to obtain illegal narcotics.

An individual identifying himself as “K” answered thephone and during the course of several calls, a drug deal wasarranged. The transaction was to occur at an approximatetime in a thrift store parking lot by a green house. During thefinal call “K” told the officer that he would be arriving in a

beige-colored Grand Am automobile along with a whitemale, and a light-skinned black female. As this final conver-sation was occurring, the undercover officer, who wasalready at the pre-designated spot, noticed a vehicle andoccupants matching the description given by “K” drive intothe area. The officer also observed the Defendant in the carend a call on a cell phone as the officer was ending her con-versation with “K.” (T.T. 81-88)3

When the beige car arrived at the scene with theDefendant, a white male, and a light-skinned black female,the Defendant exited the car holding a cellular telephoneand began to walk toward where the officer was located. Atthis time, a surveillance team at the scene arrested theDefendant. A subsequent search of the Defendant resultedin the recovery of the narcotics involved in this case.

The police may make a warrantless arrest if probablecause exists. Commonwealth v. Santiago, 736 A.2d 624, 629-30 (Pa.Super. 1999) Said probable cause exists if the factsand circumstances within the knowledge of the police at thetime of the arrest are sufficient to justify a person of reason-able caution in believing the suspect has committed or iscommitting a crime. Probable cause is determined by thetotality of circumstances. Commonwealth v. Colon, 777 A.2d1097 (Pa.Super. 2001) Based on a totality of the facts and cir-cumstances as presented at the suppression hearing con-ducted in this matter, the police had probable cause to stop,investigate, and later arrest the Defendant. This Court didnot commit error in denying the Defendant’s suppressionmotion. Therefore, this issue raised by the Defendant iswithout merit.

The Defendant’s second issue involves the assertion thatthe Defendant was denied counsel of his choice. Any crimi-nal defendant has the right to counsel of his or her choice.Commonwealth v. Rucker, 761 A.2d 541 (Pa. 2000) Thatright, however, is not absolute. Commonwealth v. Atkins, 336A.2d 368, 371 (Pa.Super. 1975) “Whether a continuanceshould be granted in order for the defendant to secure coun-sel of his choosing is a matter within the discretion of thetrial judge…” Commonwealth v. Gray, 608 A.2d 534, 547(1992) See also, Ungar v. Sarafile, 84 S.Ct. 841 (1964)

In this case, the Defendant was granted a continuance onAugust 8, 2007, so that his public defender could file pre-trialmotions, and so that the Defendant could privately obtain anattorney of his choice. The trial was rescheduled forNovember 1, 2007. On that date, the Defendant again askedfor a continuance to obtain private counsel. This time, howev-er, the request was denied, a suppression hearing was held,and jury selection commenced. On the morning of November2, 2007, after 6 jurors were selected the previous day, anattorney appeared before this Court representing that theDefendant’s family had retained him at 8:30 a.m. that day.Said attorney, however, was unwilling to enter his appearanceon behalf of the Defendant without the Court granting a con-tinuance. That request to yet again delay the Defendant’strial was denied. Based on the facts and circumstances in thiscase, the Court did not abuse its discretion in denying theDefendant a postponement to obtain new counsel.

The Defendant’s Judgment of Sentence, therefore, mustbe AFFIRMED.

BY THE COURT:/s/Durkin, J.

Date: May 30, 2008

1 35 P.S. §780-113(a)(30)2 35 P.S. §113(a)(16) & (b)3 “T.T.” designates the trial transcript.


Lynne Harris v.Diane Renee Stewart t/d/b/a D. Renee’s Nails

Court: Common PleasCase Number: GD 05-025371Jury Verdict: For DefendantDate of Verdict: 1/10/08Judge: HorgosPltf ’s Atty: David M. LandayDef’s Atty: William R. HaushalterType of Case: Slip and FallExperts: Plaintiff(s): Dane K. Wukich, M.D.

Defendant(s): Trenton M. Gause, M.D.Remarks: Plaintiff sued Defendant Stewart, the operator ofa beauty salon/nail parlor after Plaintiff fractured her anklewhen she slipped and fell on ice on the sidewalk adjacent toDefendant’s business. Defendant maintained that conditionswere generally icy at the time and that Plaintiff had tra-versed the area where she fell several times before falling.Moreover, Defendant claimed Plaintiff, a diabetic, had failedto check her blood sugar or take her medication, suggestingshe may have been light-headed prior to her fall. The juryfound Defendant was not negligent.

Nisha Jackson v.Port Authority of Allegheny County

Court: Common PleasCase Number: GD 06-012796Jury Verdict: For Plaintiff in the amount of $5,158.44Date of Verdict: 3/5/08Judge: ScanlonPltf ’s Atty: Matthew R. WimerDef’s Atty: Nicholas J. Evashavik; Christopher J. HessType of Case: Public TransportationExperts: Plaintiff(s): Arnold S. Broudy, M.D.

Defendant(s): NoneRemarks: Plaintiff, a passenger on a Port Authority bus,alleged she sustained injuries to her wrist and shoulderwhen the bus rear-ended a vehicle stopped ahead of it at anintersection. The impact caused the Plaintiff to strike theinterior of the bus, causing injuries to her right shoulder andwrist, requiring a wrist surgery and physical therapy.Defendant contended the vehicle in front of the bus stoppedwithout warning and claimed the bus barely tapped the rearof the vehicle in front of it. The jury found in favor ofPlaintiff and awarded her $4,158.44 for medical expensesand $1,000.00 for pain and suffering.

Christine L. Simmons v.H & M Services, Inc.

Court: Common PleasCase Number: GD 04-016235Jury Verdict: For Plaintiff in the amount of $200,000.00,

molded to $100,000.00Date of Verdict: 1/10/08Judge: O’ReillyPltf ’s Atty: Michael BalzariniDef’s Atty: John K. BryanType of Case: Motor Vehicle—Rear-End Collision

Experts: Plaintiff(s): James Madden, PE; Eugene A.Bonaroti, M.D.; Dean G. Sotereanos, M.D.;Barbara Swann, M.D.Defendant(s): Michael M. Weiss, M.D.

Remarks: Plaintiff was rear-ended by Defendant’s dumptruck after she entered southbound Route 279 from theBellevue entrance ramp. The force of the impact causedPlaintiff ’s vehicle to spin out of control and roll over severaltimes. Plaintiff sustained multiple injuries, including lacera-tions and abrasions, injury to the cervical spine, carpal tun-nel syndrome in the left hand, a right thumb injury, a partialtear of tendons in her left shoulder, and impingement syn-drome. Defendant maintained that Plaintiff caused the colli-sion by failing to yield the right of way to Defendant. Thejury found for Plaintiff and awarded $200,000.00 but foundPaintiff was 50% contributorily negligent, and the verdictwas molded to $100,000.00.

Paul Belsterling, as Administrator of theEstate of Ruth Belsterling, and Paula Murray,

as Trustee Ad Litem v.Sergio Betancourt, M.D. and Allegheny General Hospital

Court: Common PleasCase Number: GD 03-014489Jury Verdict: For DefendantsDate of Verdict: 1/28/08Judge: ColvillePltf ’s Atty: Rolf Louis PatbergDef’s Atty: Robert W. Murdoch(Betancourt);

Tyler J. Smith(Hospital)Type of Case: Medical MalpracticeExperts: Plaintiff(s): Robert A. Halvorsen, Jr., M.D.;

I. Michael Leitman, M.D. (New York, NY)Defendant(s): Robert F. Quinlin, M.D.;Stephen E. Rubesin, M.D. (Philadelphia, PA)

Remarks: Decedent underwent a vertical banded gastro-plasty performed by Defendant doctor. Plaintiffs alleged thatDefendants deviated from the standard of care in a numberof ways, including by failing to properly monitor Decedent’spost-operative care and by failing to detect the leak and takesteps promptly to repair it. Decedent developed respiratorydistress, peritonitis, cerebral dysfunction and colitis afterthe surgery. When stabilized she was returned to the operat-ing room for exploratory surgery. Defendant doctor con-firmed a leak but its location could not be pinpointed. He didnot remove the band but instead attempted to repair theleak. Decedent was later transferred to another hospitalwhere she died about five months after the surgery.Defendants contended the complications suffered byDecedent were well recognized risks of the procedure. TheJury found Defendants were not negligent.

Frankl Electric, Inc. v.Universal Stainless and Alloy Products

Court: Common PleasCase Number: GD 07-000815Jury Verdict: For Plaintiff in the amount of $58,880.00Date of Verdict: 4/4/08Judge: O’Brien

J U R Y V E R D I C T S


Pltf ’s Atty: Mark F. McKenna; Trisha A. GillDef’s Atty: William J. LabovitzType of Case: ContractExperts: Plaintiff(s): Richard Brugger, P.E.

Defendant(s): Samuel Sero, P.E.Remarks: Plaintiff provided electrical engineering repairservices to Defendant pursuant to an agreement. AfterPlaintiff completed the work and the power was turned on, afire occurred. Plaintiff performed repairs. Defendant failedto pay for services provided by Plaintiff after the fire, andsuit was filed for breach of contract and unjust enrichment,in which Plaintiff sought damages of $117,760.00. Defendantfiled a counter claim for breach of contract, breach ofexpress/implied warranties, negligence and declaratoryjudgment stating that Plaintiff caused the fire that necessi-tated the work. The jury found Defendant breached its oralor implied contract and awarded Plaintiff $58,880.00.

Amanda R. Lorent v.Paul G. Lorincy, D.P.M.


molded to $97,749.65Date of Verdict: 3/14/08Judge: WechtPltf ’s Atty: Veronica A. Richards, Sandra S. NeumanDef’s Atty: Hunter A. McGeary, Jr.Type of Case: Medical MalpracticeExperts: Plaintiff(s): Carl T. Hasselman, M.D.;

Robert W. Mendicino, D.P.M.Defendant(s): Michael S. Downey, D.P.M.(Philadelphia, PA)

Remarks: Plaintiff was diagnosed by Defendant with ankleinstability due to a tendon problem. Defendant informedPlaintiff the problem could be surgically repaired. The con-sent form identified the procedure as a tendon repair; how-ever, Defendant performed a rotational osteotomy thatPlaintiff alleged exceeded the scope of his surgical privi-leges. Plaintiff also alleged that Defendant failed to adviseher of alternative treatment and of the risks of the proce-dure. Plaintiff alleged Defendant used the wrong size screwsand the screws invaded Plaintiff ’s joint space causing severepain and permanent injury. Plaintiff required two surgeries(with a third being anticipated) in an attempt to correct thedamage. Defendant contended he and Plaintiff discussed theprocedure prior to the surgery and he obtained her oral con-sent. He also maintained that the surgery was properly per-formed and the screws did not invade the joint space asPlaintiff alleged. Defendant maintained Plaintiff failed tofollow post-surgery instructions. The jury found in favor ofthe Plaintiff and awarded $208,731.39, which included pastmedical bills of over $82,000.00 and $100,000.00 in futuremedical and related expenses. The award was molded by theCourt to $97,749.65.

Frank A. Lowry v. Siesta Motel, Inc.

Court: Common PleasCase Number: GD 06-021728Jury Verdict: For Plaintiff in the amount of $20,000.00Date of Verdict: 3/3/08Judge: HorgosPltf ’s Atty: Joseph A. Hudock, Jr.

Def’s Atty: Peter J. Payne; Anthony S. PosaType of Case: NegligenceExperts: Plaintiff(s): None

Defendant(s): NoneRemarks: Plaintiff was a guest at the Siesta Motel and foundthe room too hot. He was instructed by the front desk to opena window. While attempting to open the window, the windowbroke, causing the glass to break. The broken glass severedarteries and ligaments in Plaintiff ’s right arm, requiring sur-gery. Defendant denied liability and alleged the injuries sus-tained by Plaintiff were caused by his own negligence. Thejury found in favor of Plaintiff and awarded $20,000.00.

Tommy Mefford and Cheryl Mefford, his wife v.Natalie Higgins

Court: Common PleasCase Number: GD 05-017113Jury Verdict: For Plaintiff-husband in the amount of

$5,000.00Date of Verdict: 3/11/08Judge: O’BrienPltf ’s Atty: James L. Weisman and Richard A.

MarhefkaDef’s Atty: Mark J. GolenType of Case: Motor VehicleExperts: Plaintiff(s): Robert E. Schilken, M.D.

Defendant(s): William Abraham, M.D.Remarks: Defendant struck Plaintiffs’ vehicle at the inter-section of Route 51 and Beall Street. Plaintiff-husband sus-tained a left medial meniscus tear necessitating a partialmedial meniscectomy and debridement of the knee joint.Plaintiffs alleged Defendant caused the crash when shefailed to stop at the stop sign. Plaintiffs further alleged theDefendant’s negligence caused Plaintiff-husband’s injuriesand Plaintiff-wife’s loss of consortium. Defendant contendedPlaintiff-husband suffered from a pre-existing degenerativeknee condition and that the collision at most may havecaused a strain. The jury found in favor of Plaintiff-husbandand awarded $5,000.00.

Delia Szerbin v.Port Authority of Allegheny County


reduced to $72,000.00 due to Plaintiff ’scontributory negligence.

Date of Verdict: 5/21/08Judge: LazzaraPltf ’s Atty: Judd CrosbyDef’s Atty: Colin Meneely; Michael CetraType of Case: NegligenceExperts: Plaintiff(s): Joel Warshaw, M.D.

Defendant(s): NoneRemarks: Plaintiff was injured after entering a light railvehicle. Plaintiff alleged the LRV accelerated with anextraordinary jolt, causing her to be thrown down the aisle adistance of five feet, where she landed, striking her right hip,chest and face. Plaintiff alleged Defendant’s negligencecaused her injuries including a hip fracture and a compres-sion fracture at T-12. Plaintiff further alleged Defendant’soperator failed to pass out courtesy cards contrary to thetraining manual. Defendant maintained there was no unusu-


al movement on the LRV and that no other passengers com-plained. The jury found Defendant was negligent and award-ed $100,000.00, reduced by Plaintiff ’s contributory negli-gence to $72,000.00.

Paul E. Haines, Executor of the Estate ofMargaret M. Haines, Deceased v.

Mary Ann Portman, M.D.; University of PittsburghPhysicians; and University of Pittsburgh Medical Center

Court: Common PleasCase Number: GD 06-017548Jury Verdict: For DefendantsDate of Verdict: 4/3/08Judge: FolinoPltf ’s Atty: Alan H. PererDef’s Atty: James A. WoodType of Case: Medical MalpracticeExperts: Plaintiff(s): Jay Jarrell (economic loss);

Michael Leitman, M.D.; JosephFinkelstein, M.D. (New York, NY)Defendant(s): Thomas Lyons, M.D.; FredBerkowitz, M.D.; Douglas King, C.P.A.

Remarks: Plaintiff ’s Decedent underwent surgery byDefendant doctor due to an adnexal mass. During the proce-dure extensive adhesions to the bowel were found near theadnexal. Defendant doctor performed an enterolysis butPlaintiff alleged Defendant did not indicate a thermal injuryhad occurred. Ten to twelve days after surgery, Decedentexperienced severe pain and notified Defendant’s office butwas not instructed to go to the office. Defendants contendshe was instructed to come into the office but that shedeclined. Decedent was hospitalized several days later afterfalling and sustaining an ankle fracture as a result of a syn-copal episode. Her abdomen was distended and duringexploratory surgery the bowel was found to be perforated.Plaintiff alleged Defendant’s failure to diagnose and treatthe perforation he caused by the electrocautery used in theinitial surgery resulted in sepsis and other complicationsfrom which Decedent never recovered. She died five weeksafter the initial surgery. Defendants contended they com-ported with the standard of care at all times. The Jury foundDefendants were not negligent.

Manus O’Donnell, Executor of theEstate of Patricia O’Donnell, Deceased v.

Miguel A. Marrero, M.D.,and Miguel A. Marrero, M.D., P.C.

Court: Common PleasCase Number: GD 03-018346Jury Verdict: For DefendantsDate of Verdict: 1/29/08Judge: Della VecchiaPltf ’s Atty: Neil R. Rosen; Elizabeth L. JenkinsDef’s Atty: Paul K. VeyType of Case: Medical MalpracticeExperts: Plaintiff(s): Thomas C. Krivak, M.D.

Defendant(s): Joseph S. Sanfilippo, M.D.,M.B.A.

Remarks: Decedent was seen by Defendant due to severechronic abdominal pain. Defendant recommended a diag-nostic laparoscopy. Decedent underwent the procedure andpostoperatively experienced abdominal discomfort, butwas examined by Defendant and discharged to home. The

next day she was admitted to the hospital where she under-went an emergency surgery during which the surgeonfound bowel perforations. Decedent developed peritonitisand a massive infection of the abdominal wall from whichshe never recovered, ultimately suffering multi-organ sys-tem failure and passing away several weeks afterDefendant’s surgery. Plaintiff alleged Defendant providedmisinformation to Plaintiff and Decedent about the reasonfor the emergency surgery, deviated from accepted stan-dards of care by failing to obtain adequate informed con-sent prior to surgery, failed to explain the risks involved inthe procedure and failed to offer alternatives to surgery.Defendant alleged he provided appropriate care and thatDecedent signed a consent form which explained the risksof the procedure. The Jury found Defendant did not deviatefrom the standard of care.

Alton D. Brown v.Anthony Bovo, Kevin Geppert, Heath Ashmun,

and Jon Nordquist

Court: Common PleasCase Number: GD 02-005523Jury Verdict: For DefendantsDate of Verdict: 1/28/08Judge: O’BrienPltf ’s Atty: Pro SeDef’s Atty: Scott A. BradleyType of Case: MiscellaneousExperts: Plaintiff(s): None

Defendant(s): NoneRemarks: Plaintiff filed this lawsuit against four employeesof the Pennsylvania Department of Corrections (DOC) alleg-ing excessive and unnecessary force, retaliation, and con-spiracy arising from events which occurred at the StateCorrectional Institution (SCI) in Pittsburgh. Plaintiff allegesthat Defendant Bovo ordered the defendants to perform a“harassing search” of his cell in retaliation for Plaintiff ’sfederal claims against DOC staff. During the search Plaintiffalleged his legal documents were destroyed and that he wasphysically abused while being placed in a holding cell.Defendants contended that Plaintiff was not targeted andthat inmate cells are randomly searched while inmates areproperly restrained pursuant to SCI policies and procedures.The Jury found Defendants did not perform acts that violat-ed Plaintiff ’s constitutional rights.

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