McCarthy v. Buckno Lisicky & Co

McCarthy v. Buckno Lisicky & Co.

Civil procedure — Preliminary objections — Statute of limitations — Indemnification — Stay of adversary procedure

Believing that the validity of an accusation or lack thereof affected when the statute of limitations began, the subject of an adversary proceeding and criminal indictment waited for four years to file his complaint of fraud and negligent misrepresentation. They were thus barred by the statute of limitations. For his claim of indemnification arising from those false charges, his claim failed, since he was not held liable or found guilty in those actions. On appeal, the court asked that its orders be affirmed.

In an action on May 24, 2016, the court sustained preliminary objections in three separate cases by defendants Buckno Lisicky & Company P.C., Jeffery Dobeck, Anthony Buczek, Ken Stein, Kensington Franchise Sales Co. and The Kensington Company, against plaintiff Gary McCarthy. Plaintiff’s complaint was dismissed with prejudice in each of the three cases.

An adversary proceeding began in June 2011, followed in November with the unsealing of a criminal indictment against plaintiff. Plaintiff argued that those events did not start the running of the clock statutory limitations since they were unproven allegations. In actuality, plaintiff had two years to initiate proceedings against a defendant who he believed had caused him harm, and the court found that he should have known in 2011 that an action was running against him. The staying of the adversary proceeding in Texas did not automatically stay the civil proceedings.

Plaintiff filed a complaint against defendants in July 2015, alleging fraud and negligent misrepresentation, as well as raising a claim for indemnification. In that claim, plaintiff sought legal fees and expenses that derived from the adversary proceeding and indictment. As stated in City of Wilkes-Barre v. Kaminski Bros., indemnification “comes into play when a defendant held liable by operation of law seeks to recover from defendant whose conduct actually caused the loss.” In the present case, plaintiff was not held liable or found guilty in the criminal case, and he himself paid no damages to an injured party. Plaintiff’s own legal fees did not qualify as damages, so that the claim was legally insufficient.

Thus the clock began running in 2011, but this complaint against defendants was filed in 2015. The fraud and negligent misrepresentation claims were barred by the statute of limitations. The claim for indemnification, since it hinged on a nonexistent liability or guilty

McCarthy v. Buckno Lisicky & Co. 1 (2016)1

2 Pa. D. & C.5th

verdict in the adversary and criminal proceedings, and was intended to reimburse plaintiff’s legal fees, was also dismissed.

C.P. of Philadelphia County, July Term, 2015 No. 03168; 1859 EDA 2016

Gene M. Linkmeyer and Christopher David Wagner, for appellant.

David B. Picker and Johan Ali Asrafzadeh-Kian, for appellees Ken Stein, Kensignton Franchise Sales Co. and The Kensington Co.

David L. Pennington and Melissa Ellen Lang, for appellee Anthony Buczek.

Arthur W. Lefco and Kimberly A. Boyer-Cohen, for appellee Buckno Lisicky and Co., P.C.

GLAZER, J., June 27, 2016—Plaintiff, Gary J, McCarthy, Esq. appeals from three Orders dated May 24, 2016, in, which the court sustained defendants’ preliminary objections. In support of those Orders, the court provided explanatory footnotes, copies of which are attached hereto. For the reasons contained in those Orders, this court respectfully requests that its May 24, 2016 Orders be affirmed on appeal.

ORDER

AND NOW, this 24th day of May, 2016, upon consideration of the preliminary objections of defendant, Anthony Buczek, to the amended complaint and any response thereto, it is hereby

ORDERED

that the said objections are SUSTAINED and plaintiff’s

McCarthy v. Buckno Lisicky & Co.

complaint is DISMISSED with prejudice.1

1. Pursuant to Pa.R.C.P. 1028(a)(4), a party may raise preliminary objections due to a legal insufficiency of a pleading (demurrer). When considering preliminary objections, all material facts and reasonable inferences set forth in the complaint must be admitted as true. Haun v. Cmty. Health Sys, Inc., 14 A.3d 120, 123 (Pa. Super. 2011) (citation omitted). Rather than assert the affirmative defense of statute of limitations as New Matter pursuant to Pa.R.C.P. 1030, defendant raised it in the instant preliminary objections. As discussed in this court’s May 24, 2016 Order, Control No. 16043341, incorporated by reference herein, the court may rule on the issue in the interest of judicial economy.

“[T]he statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations.” Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983)(citations omitted). The discovery rule and fraudulent concealment rules toll the running of the statute of limitations. The discovery rule applies until plaintiff knows or reasonably should know: (1) that he has been injured; and (2) that his injury has been caused by another party’s conduct. K.A.R. v. T.G.L., 107 A.3d 770, 779 (Pa. Super. 2014), appeal denied, 116 A.3d 605 (Pa. 2015). Similarly, fraudulent concealment tolls the clock until plaintiff knew or should have known of his claim despite the defendant’s misrepresentation or omission. See Fine v. Checcio, 870 A.2d 850, 858, 860 (Pa. 2008); Lokuta v. Sallemi, No. 3:CV-13.0288, 2013 WL 5570227, at *17 (M.D. Pa. Oct. 9, 2013).

Here, plaintiff was forced to defend against the adversary proceeding beginning in June 2011, and the underlying criminal indictment against plaintiff — which led plaintiff to file this complaint against defendants — was unsealed in November 2011. These proceedings undeniably put plaintiff on notice to commence the running of the statute of limitations. Plaintiff’s argument that these events did not start the running of the clock because they were merely unproven allegations is misguided. If plaintiff reasonably should have known that defendant may have been responsible for any harm suffered by plaintiff, then plaintiff had a duty to file the instant action within two years of that time. Moreover, the fact that the adversary proceeding in Texas was stayed pending the outcome of the criminal trial does not mean that all potential civil proceedings were automatically stayed as well. Because the clock commenced running in 2011, but this action was not filed until July 2015, Counts I and II for fraud and negligent misrepresentation are barred by the statute of limitations and hereby dismissed.

Plaintiff’s Count III claim for indemnification, which only seeks legal fees and expenses arising out of the adversary proceeding and criminal indictment, is also dismissed. A common law right for indemnification is “a fault-shifting mechanism that comes into play when a defendant held liable by operation of law seeks to recover from a defendant whose conduct actually caused the loss.” City of Wilkes-Barre v. Kaminski Bros., 804 A.2d 89, 92 (Pa. Commw. Ct. 2002); see Sirianni v. Nugent Bros., 506 A.2d 868, 871 (Pa. 1986). Plaintiff was not held liable in the

McCarthy v. Buckno Lisicky & Co. 3 (2016)1

City of Philadelphia v. D’Angelo

Taxation — Audit — Business partners — Trustees ex maleficio — Parking lot taxes

Breakdown of relations between business partners led to lack of communication regarding a business tax audit. One partner, with the business, settled out of court and left the other partner to face the city of Philadelphia alone. Arguments that a non-operator should not be found liable, or that he, absent malfeasant conduct, should not be found a trustee ex maleficio were answered by identification of responsibility by virtue of his former position. On appeal, the court recommended its decision be affirmed.

In 2000, appellant Anthony D’Angelo purchased a parking lot business in Philadelphia and formed Righter Parking Inc. with Robert Righter. Righter was president and treasurer, while D’Angelo was vice-president and secretary. While Righter was the primary operator of the lots, appellant D’Angelo paid bills and rent, signed business tax returns, signed checks to pay business privilege taxes, negotiated leases and made cash deposits. As time went on, each partner began to think the other was defrauding the business, and starting in 2007, appellant D’Angelo was blocked from accessing the business.

In 2009 the Department of Revenue of appellee, City of Philadelphia, audited Righter Parking Inc. and assessed taxes from 2000 to 2008. Notice of the audit was mailed to the address on record for Righter Parking Inc., which at the time was Righter’s personal address. Appellee brought a complaint against appellant and Richter in February 2014 for unpaid parking lot taxes and penalties. Righter and Righter Parking Inc. settled out of court prior to trial, which took place in March 2015. In July 2015, the court found appellant was liable to the city for $557,561.98, less the pre-trial settlement between the city, Righter Parking Inc. and Righter. Defendant was found to not be an “operator,” but was designated a trustee ex maleficio for 2000 to 2006. Defendant’s counterclaim was ruled in favor of Righter, who was also a trustee ex maleficio.

Defendant filed a motion for post-trial relief, which was denied and

adversary proceeding or found guilty in criminal case. He did not pay damages to an injured party. Plaintiff’s attorneys’ fees and expenses on their own do not qualify as “damages” paid to a wronged party which entitle plaintiff to indemnification. Therefore, plaintiff’s claim is legally insufficient, and defendant’s objection is sustained.

Since all Counts are dismissed, the remainder of defendant’s objections are deemed moot.

4 Pa. D. & C.5thCity of Philadelphia v. D’Angelo

followed by an appeal. His 1925(b) statement was filed in January 2016 and alleged errors of the court in finding him liable when he was found not to be an “operator,” applying trustee ex maleficio to the parking ordinance, finding he was a trustee ex maleficio absent evidence of relevant conduct, finding against him in the counterclaim against Righter and finding him liable for taxes without notification and due process of law.

The court explained that trustee ex maleficio derived from the function of collecting tax as an agent for the city and then not paying the tax to the city. All officers of a corporation that performed the function would be so termed, with joint responsibility for the collection. Under the factors of Brown v. Commonwealth, appellant’s role in review and signing of tax returns, among others, qualified him as responsible for the duty of tax collection, along with Righter. Moreover, the Commonwealth Court, in City of Philadelphia v. Pletherbridge, determined that the signing of an application for a city business tax account number and business privilege tax returns gave the signer “responsibility or control over the collection and remitting of taxes.” Defendant paid the business privilege taxes in two years, negotiated leases, and made deposits.

Defendant’s argument that, since he was not found to be an operator, he should not be found liable or a trustee ex maleficio, and he argued that no other court had applied the doctrine to the tax ordinance. Under City of Philadelphia v. Penn Plastering Corp., however, it was applied to the wage tax ordinance for the same function.

Defendant held that there was no allegation of malfeasance and thus he should also not be considered ex maleficio. He cited a case to indicate that there must be a finding of willfulness in order to so declare. The court showed that the willfulness came from the wage tax ordinance and was not present in the parking tax ordinance.

As for the crossclaim against Righter, the court pointed out that defendant was found a trustee ex maleficio only for 2000 to 2006 and that the actions preventing defendant from accessing the business took place in 2007 and after. Since he was not held liable for the time when he was locked out, the claim failed.

Defendant argued that the city did not comply with the state Taxpayer Bill of Rights in not providing him with notice of the audit. The city properly mailed the notice to the company, not to the locked-out owner and, since defendant did not raise the issue at argument or post-trial proceedings, it was deemed waived on appeal. Defendant also claimed that his rights to due process were violated since he had no opportunity to contest the tax liability but provided no authority in support of that allegation. Here, too, the mailing of the notice to the company was

City of Philadelphia v. D’Angelo 5 (2016)4

deemed sufficient procedural process.

C.P. of Philadelphia County, February Term, 2012 No. 01489; 2737 CD 2015

Frederick P. Santarelli and Richard Camillo DeMarco, for appellant.

Louis S. Schwartz, Susan Mitchell and Craig R. Gottlieb, for appellees.

COHEN, J., June 29, 2016—

A. PROCEDURAL HISTORY

The City of Philadelphia commenced this litigation by filing a complaint on February 14, 2014 against Righter Parking, Inc., Robert Righter, and Anthony D’Angelo claiming $576,506.96 in unpaid parking lot taxes and penalties. Prior to trial, defendants Righter Parking, Inc. and Robert Righter settled with the City of Philadelphia. On March 2 and 3, 2015, the Honorable Denis P. Cohen, Judge of the Court of Common Pleas, presided over a non-jury trial for the City of Philadelphia’s claims of unpaid parking lot taxes against Anthony D’Angelo (“Defendant D’Angelo”) and Defendant D’Angelo’s cross-claim against Righter Parking, Inc. and Robert Righter. This Court held the case under advisement and issued Orders on April 1, 2015 and May 5, 2015 allowing the parties to file post-trial briefs. On July 17, 2015, this Court issued an Order finding for Plaintiff and determining that Defendant D’Angelo was liable to the City of Philadelphia for $557,561.98 minus the amount of the settlement between the City of Philadelphia and Righter Parking, Inc. and Robert Righter. On July 27, 2015, Defendant D’Angelo


filed a Motion for Post Trial Relief. After holding oral arguments, this Court denied the Motion for Post Trial Relief on November 24, 2015. Defendant D’Angelo filed a timely Notice of Appeal on December 23, 2015. On the same day, this Court issued a 1925(b) Order requiring Defendant D’Angelo to serve on this Court a concise and itemized Statement of Errors Complained of on Appeal by January 13, 2016. Defendant D’Angelo filed a Concise Statement of Matters Complained of on Appeal on January 13, 2016 alleging the following errors by the Court:

1. The trial court committed an error of law and abuse of discretion in finding D’Angelo liable under the Philadelphia Parking Tax Statute (Section 19-1201(3) of the Philadelphia Code), where D’Angelo was specifically found not to be an “operator” under that and other sections of the ordinance.

2. The trial court committed an error of law and abuse of discretion in applying, and expanding, the doctrine of trustee ex maleficio to the Philadelphia Parking Tax in a case where the ordinance language does not permit such application and expansion of liability; where to apply such doctrine would contradict and be inconsistent with the plain language and terms of the ordinance, and would otherwise expand and rewrite the ordinance’s dictate of who can be liable for its violation; and, where D’Angelo was expressly found not to be an “operator” with any liability under the plain terms and language of the ordinance.

3. The trial court committed an error of law and abuse of discretion, and overstepped its constitutional authority,


in expanding the doctrine of trustee ex maleficio to the Philadelphia Parking Tax, where D’Angelo was found not to be an “operator” under the statute, thus intruding upon the legislative function and prerogative of the Philadelphia City Council.

4. The trial court committed an abuse of discretion in holding that D’Angelo was a trustee ex maleficio and applying such doctrine in this case, where there was no evidence (and certainly no sufficient evidence) of fraudulent conduct, or malfeasance and/or any of the other requisite elements needed in order to support application of such doctrine to D’Angelo.

5. The trial court committed an error of law and abuse of discretion in finding against D’Angelo on his counterclaim against Defendants Robert Righter and Righter Parking, Inc., where the record was replete with evidence of D’Angelo being excluded from the business of Righter Parking Inc. by Defendant Robert Righter — such that D’Angelo was prevented from accessing the business records at issue for the relevant period, prevented from an opportunity to contest and challenge liability for the taxes assessed and claimed as owed, and otherwise protecting his rights.

6. The trial court committed an error of law and abuse of discretion in finding D’Angelo liable for the parking taxes where the City failed to comply with the Pennsylvania Taxpayer Bill of Rights (more specifically 53 Pa. C.S.A. Sections 8423 and 8434, inter alia), and failed to provide notice of the parking tax audit to D’Angelo, failed to provide information regarding the


taxes sought against him, and failed to notify him of his right to challenge the tax before a board of appeal and before the courts.

7. The trial court committed an error of law and abuse of discretion in finding D’Angelo liable for the parking taxes where the City failed to provide D’Angelo with procedural and substantive due process of law in violation of the Constitution, as further established by the lacked [sic] of any evidence of record that D’Angelo was given notice and opportunity to contest and challenge the alleged liability for the tax sought to be imposed against him personally.

B. FACTS

Righter Parking, Inc. was incorporated in 2000 with Robert Righter as President and Treasurer and Anthony D’Angelo as Vice-President and Secretary. (N.T. 3/2/15 at 50-52). Defendant D’Angelo testified that he purchased the parking lot business with the intention that Mr. Righter would operate the parking lots. (Id. at 50). Mr. Righter testified that he understood Defendant D’Angelo’s responsibilities to include paying the bills and paying the rent. (Id. at 170). Defendant D’Angelo’s involvement in the company included signing business tax returns, signing checks for business privileges taxes, and negotiating leases. (Id. at 41-43, 61, 63-64). Defendant D’Angelo had access to cash from the parking lots and made bank deposits for Righter Parking, Inc. (Id. at 58, 180-81). Over time, the business relationship between Defendant D’Angelo and Mr. Righter deteriorated. (Id. at 81). Defendant D’Angelo testified that Mr. Righter repeatedly threatened him and


told him to “bring that f------ checkbook down here now.” Id. Both men thought the other was stealing from the business. (Id. at 87, 222). Eventually, Defendant D’Angelo had no involvement in the business. (Id. at 82). Defendant D’Angelo last wrote a check for Righter Parking, Inc. in 2006. (Id. at 93).

In 2009, the City of Philadelphia’s Department of Revenue audited Righter Parking, Inc. and assessed Parking Taxes from 2000 to 2008. (Id. at 37). The City of Philadelphia mailed an audit bill to the address on file for Righter Parking, Inc. on October 30, 2009. (Id. at 27-28). The Philadelphia Parking Tax Ordinance imposes a tax “upon every person parking or storing a motor vehicle in or on any parking facility in the City, . . . which tax shall be collected by the operator from the person parking or storing the vehicle, and shall be paid over to the City as provided herein.” Philadelphia Code § 19-1202(b). At the time of the trial, the parties stipulated that the amount of taxes owed included $191,370.74 in principal, $211,636.75 in interest, and $311,813.64 in penalty. (N.T. 3/2/15 at 19).

On July 17, 2015, this Court issued an Order with the following findings:

1. Defendant, Anthony D’Angelo, is not an “operator” as defined in Section 19-1201(3) of the City of Philadelphia Code.

2. Defendant, Anthony D’Angelo, was a trustee ex maleficio from 2000 through 2006, and thus is liable to the City of Philadelphia in the amount of $557,561.98


minus the settlement amount reached between the City of Philadelphia and Righter Parking Inc., Robert Righter and Patricia Righter.

3. The Court finds in favor of Defendant Robert Righter and against Defendant Anthony D’Angelo on Mr. D’Angelo’s cross claim against Mr. Righter.

4. Defendant, Robert Righter, is also a trustee ex maleficio and thus is jointly and severally liable.

C. DISCUSSION

1. This Court properly determined that Defendant D’Angelo was liable under the Philadelphia Parking Tax Statute (Section 19-1201(3) of the Philadelphia Code), as trustee ex maleficio.

This Court properly determined that Defendant D’Angelo was a trustee ex maleficio from 2000 through 2006 and was liable to the City of Philadelphia. Cohen Order, 7/17/15. A trustee ex maleficio is “[o]ne who collects taxes as agent for a city and fails to pay the same over to the city.” City of Philadelphia v. Perm Plastering Corp., 253 A.2d 247, 249 (Pa. 1969). Furthermore, officers of a corporation which collects taxes for the city “are all trustees [e]x maleficio and are responsible together with the corporation where they were responsible for the performance of the duty to collect the taxes and were in control of the corporation’s funds and tax accounts.” Id. Relevant factors in determining whether someone is a trustee ex maleficio include “physical presence on the premises at relevant times, ability to hire or fire employees, review and signing of tax returns, signing payroll checks,


signing checks for expenses, obtaining loans, consulting the company’s books and acting as an administrator or manager.” Brown v. Commonwealth, 670 A.2d 1222, 1225 (Pa. Commw. 1996).

The evidence presented at trial indicated that Defendant D’Angelo, along with Robert Righter, were responsible for the performance of the duty to collect taxes and were in control of the corporation’s funds and tax accounts. See Penn Plastering Corp., 253 A.2d at 249. In City of Philadelphia v. Pletherbridge, the Commonwealth Court affirmed the finding of fact of the trial court that a corporate officer had the responsibility or control over the collection and remitting of taxes when he signed an Application for Philadelphia Business Tax Account Number, Annual Reconciliation of Wage Tax forms, and Business Privilege Tax Returns. 781 A.2d 263, 267 (Pa. Commw. 2001). In the instant case, there is more than sufficient evidence to support this Court’s finding of fact that Defendant D’Angelo had control over the collection and remitting of taxes. Defendant D’Angelo was the vice-president and secretary of Righter Parking, Inc. (N.T. 3/2/15 at 52). Defendant D’Angelo signed four business tax returns between 2000 and 2003. (Id. at 61). He also signed checks in 2004 and 2006 for business privilege taxes. (Id. at 41-43). Moreover, Defendant D’Angelo’s home address was used as Righter Parking, Inc.’s primary mailing address for both the City’s Department of Revenue and the Internal Revenue Services. (Id. at 102); (N.T. 3/3/15 at 33-34). Defendant D’Angelo also negotiated and signed parking lot leases on behalf of Righter Parking, Inc. (N.T. 3/2/15 at 63-64). Defendant D’Angelo and Mr. Righter jointly


made a decision on whom to hire as the accountant for the business. (Id. at 145). Furthermore, Defendant D’Angelo testified that he had access to cash from the parking lots and at times made deposits to the bank on behalf of the corporation. (Id. at 58).

a. Ordinance language

Defendant D’Angelo argues that the language of the Philadelphia Parking Tax Ordinance does not permit application of the doctrine of trustee ex maleficio to the ordinance because the ordinance only holds “the operator” liable. Furthermore, Defendant D’Angelo argues that by applying the doctrine of trustee ex maleficio to Defendant D’Angelo, this Court has intruded upon the legislative function and prerogative of the Philadelphia City Council. Defendant D’Angelo notes that there are no Pennsylvania cases that applied the doctrine of trustee ex maleficio to the Philadelphia Parking Tax Ordinance. However, in other cases where courts have applied the doctrine of trustee ex maleficio, the courts’ decisions have not depended on who is held liable under the statute but whether the facts allow the officer of the corporation to fit within the common law definition of trustee ex maleficio. See generally Pletherbridge, 781 A.2d at 267-268; City of Philadelphia v. B. Axe Co., 397 A.2d 51 (Pa. Commw. 1979); Perm Plastering Corp., 253 A.2d at 249. Although there are no Pennsylvania cases where a court has applied the doctrine of trustee ex maleficio to the Philadelphia Parking Tax Ordinance, the Philadelphia Wage Tax Ordinance and the Philadelphia Parking Tax Ordinance are similar in that both ordinances involve “one who collects taxes as an agent for a city.” See Penn Plastering Corp., 253 A.2d at


249. The Philadelphia Parking Tax Ordinance, “imposed upon every person parking or storing a motor vehicle in or on any parking facility in the City, . . . between July 1, 1989 and June 30, 2008, inclusive, a tax of fifteen percent (15%) of the amount charged for the transaction, ... which tax shall be collected by the operator from the person parking or storing the vehicle, and shall be paid over to the City as provided herein.” Philadelphia Code § 19-1202(1)(b). Furthermore, “[a]ll taxes collected by any operator in accordance with this Chapter shall constitute a trust fund for the City and such trust shall be enforceable against such person and any person receiving any part of such fund . . .” Id. § 19-1202(2). The operator of the parking facility thus collects the tax from the person parking or storing a motor vehicle “as agent of the City” and is responsible for remitting the tax to the City. See Perm Plastering Corp., 253 A.2d at 249. Under the Philadelphia Wage Tax Ordinance, employees are taxed and the employer acts “as an agent of the City” by collecting and then remitting the tax. Philadelphia Code § 19-1504.

b. Evidence of fraudulent conduct or malfeasance is not required to determine that an individual is a trustee ex maleficio.

Defendant D’Angelo argues that this Court erred in applying the doctrine of trustee ex maleficio in this case because there was no evidence of fraudulent conduct or malfeasance. Defendant D’Angelo has cited the case of City of Philadelphia v. Go Internet Net, Inc. to support the proposition that there must be a finding of “willfulness” to hold someone liable as a trustee ex maleficio. 935 A.2d 586 (Pa. Commw. 20007). However, the willfulness


requirement discussed in Golnternet comes from the language of the Philadelphia Wage Tax Ordinance.1 The Philadelphia Parking Tax Ordinance does not include any “willfulness” language. Philadelphia Code § 19-1202(3). Furthermore, in other cases where the Court has analyzed whether someone is a trustee ex maleficio, the Court has not discussed fraudulent conduct or malfeasance as a factor. See e.g., Pletherbridge, 781 A.2d at 267-68; Brown, 670 A.2d at 1225.

Furthermore, the facts of GoInternet are unique as the defendant in that case was a Chief Financial Officer (“CFO”) who was not assigned the responsibility of remitting City tax payments. 935 A.2d at 590. At one point, the CFO prepared the City payroll taxes checks, but the employee responsible for remitting the taxes to the City did not send the checks to the City. Id. Furthermore, another company later assumed control of GoInternet’s accounts and ordered the CFO not to pay the City taxes. Id. at 591. The Court in GoInternet stated that “[w]e conclude that the City ordinance that makes an employee vicariously liable for his employer’s tax obligation requires the City to prove that the employee in question had the power to effect the timely payment of those taxes and was at fault for their non-payment.” Id. at 589. In the instant case, as discussed above, there is sufficient evidence that Defendant D’Angelo did have the power to effect the

1. The Philadelphia Wage Tax Ordinance states “[a]ny person required to collect, truthfully account for, and pay over any tax imposed by this Chapter on salaries, wages, commissions and other compensation who fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall be liable for the full amount of such tax.” Philadelphia Code § 19-1507(1).


payment of the parking lot taxes.

2. This Court properly denied Defendant D’Angelo’s crossclaim against Robert Righter and Righter Parking, Inc.

Defendant D’Angelo alleged in his crossclaim that Robert Righter illegally and improperly locked Defendant D’Angelo out of the business. However, this Court only found Defendant D’Angelo to be a trustee ex maleficio from 2000 to 2006, and the actions of Mr. Righter that prevented Defendant D’Angelo from being involved in Righter Parking, Inc. occurred after 2006.2 As noted above, Defendant D’Angelo signed a business privilege tax in 2006. (N.T. 3/2/15 at 42-43). Mr. Righter testified that he was giving daily deposits of cash from Righter Parking, Inc. to Defendant D’Angelo until 2007. (Id. at 180). Because Defendant D’Angelo was not held liable as a trustee ex maleficio for any period of time when he was allegedly locked out of Righter Parking, Inc., Defendant D’Angelo’s crossclaim against Mr. Righter and Righter Parking, Inc. fails.

3. Pennsylvania Taxypayer Bill of Rights

Defendant D’Angelo argues that this Court erred in finding Defendant D’Angelo liable for the parking taxes

2. In his questioning, Defendant D’Angelo’s attorney, Mr. DeMarco, agrees that it was in 2007 when Defendant D’Angelo was no longer involved in Righter Parking, Inc.:

MR. DeMARCO: Mr. Righter, you would agree that at some point you — I think we both agree that it’s as of 2007 — would you agree that you — that Mr. D’Angelo had no input into the business operation of Righter Parking, Inc. as of 2007?MR: RIGHTER: Yes.

(N.T. 3/2/15 at 220).


where the City failed to comply with the Pennsylvania Taxpayer Bill of Rights, 53 Pa. C.S. § 8423,3 by not providing notice of the tax audit to Defendant D’Angelo. However, Defendant D’Angelo waived this argument by not raising it at trial or during any pre-trial proceedings.4 Pa. R.C.P. 227.1(b). Furthermore, the City of Philadelphia complied with the requirements of 53 Pa. C.S. § 8423 by mailing the notice of the parking tax audit to Righter Parking, Inc. (N.T. 3/2/15 at 28). For purposes of the statute, Righter Parking, Inc., not Defendant D’Angelo, was the audited taxpayer that was required to receive notice.

4. Defendant D’Angelo’s procedural and substantive due process rights were not violated.

3. 53 Pa. C.S. § 8423 states:(a) Contents. — The local taxing authority shall prepare a statement which sets forth the following in simple and nontechnical terms:(1) The rights of a taxpayer and the obligation of the local taxing authority during an audit or an administrative review of the taxpayer’s books or records.(2) The administrative and judicial procedures by which a taxpayer may appeal or seek review of any adverse decision of the local taxing authority.(3) The procedure for filing and processing refund claims and taxpayer complaints.(4) The enforcement procedures.(b) Distribution. — The local taxing authority shall notify any taxpayer contacted regarding the assessment, audit, determination, review or collection of an eligible tax of the availability of the statement under subsection (a). The local taxing authority shall make copies of the statement available to taxpayers upon request at no charge to the taxpayer, including mailing costs. The notification shall be stated as follows:You are entitled to receive a written explanation of your rights with regard to the audit, appeal, enforcement, refund and collection of local taxes by calling (name of local taxing authority) at (telephone number) during the hours of (hours of operation).4. The issue was first raised in the post-trial brief Defendant

D’Angelo submitted while this Court held the case under advisement.


Defendant D’Angelo argues that his procedural and substantive due process rights were violated because he was not given notice and opportunity to contest the liability for the taxes imposed. However, Defendant D’Angelo has not cited any authority supporting his argument that he cannot be held liable as a trustee ex maleficio simply because he did not receive personal notice.5 Instead, in his post-trial brief, Defendant D’Angelo cited case law standing for the general proposition that procedural due process requires notice and the opportunity to be heard. As discussed above, the parking taxes were originally imposed on Righter Parking, Inc. The City of Philadelphia mailed notice of the audit bill to the address on file for Righter Parking, Inc. (N.T. 3/2/15 at 28).6 Righter Parking, Inc. then filed two petitions for review with the Tax Review Board. (Id. at 208). “Procedural due process calls for protections tailored to the particulars of the situation, demanding a balancing of competing interests.” Sanders v. Allegheny Hosp.-Parkview Div., 833 A.2d 179, 184 (Pa. Super. 2003). In this instance, the mailing of the notice of the assessment of taxes to the address on record with the City of Philadelphia for the business of Righter Parking,

5. Furthermore, “[d]emonstrable prejudice is a key factor in assessing whether procedural due process was denied.” Pennsylvania Bankers Ass’n v. Pennsylvania Dep’t of Banking, 981 A.2d 975, 996 (Pa. Commw. 2009). Although Defendant D’Angelo was prevented from disputing the amount of parking taxes Righter Parking, Inc. owed, Defendant D’Angelo has not explained in his briefs why the amount of parking taxes assessed between 2000 and 2006 was incorrect. Additionally, Defendant D’Angelo jointly hired with Mr. Righter the accountant who participated in the audit process with the City of Philadelphia. (N.T. 3/2/15 at 37, 145).

6. The City of Philadelphia mailed the audit notice to the address on file for Righter Parking, Inc., which was the home address of Robert Righter. (N.T. 3/2/15 at 28, 233).


Inc. was sufficient procedural process for Righter Parking, Inc. and its officers.

D. CONCLUSION

For the foregoing reasons, the decision of this Court should be affirmed.

Magee v. Philadelphia DA’s Office

Public records — Right to Know Law — Judicial records — Transcripts exempt

Appeal of individual against the ruling that the court transcripts he sought from the district attorney’s office were not subject to disclosure under the Right to Know Law led to the court’s review de novo of the facets of the case. Amid allegations that the Office of Open Records had overstepped in its ruling to allow the disclosure, the most important issue was whether proceeding transcripts fell under a category that could require their production. The court found that the law spelled out clearly that only financial records were available through RTKL requests.

Appellant James Magee sought transcripts from several proceedings presided over by Judge Arthur Kafrissen. He filed a request with the Philadelphia district attorney’s office, appellee herein, for the transcripts under the Right to Know Law (RTKL) on Jan. 13, 2015. Appellee denied the request on the grounds that the records were judicial records not subject to the RTKL. Appellant appealed to the Office of Open Records (OOR), who granted his request on March 6, 2015, based on the records being in the possession of appellee, and required production of copies of the records within 30 days. Because appellee did not submit evidence that the transcripts were exempt or otherwise protected, it had not met its burden of proof.

Appellee filed an appeal from the OOR determination on April 2, 2015, arguing that the OOR did not have jurisdiction to hear appellant’s appeal and that the transcripts sought were nonfinancial judicial records that were not subject to disclosure. It also argued that the records remained the property of the court, even if in the possession of another agency and that the proper avenue to obtain transcripts was identified in the Rules of Judicial Administration.

Magee v. Philadelphia DA’s Office 19 (2016)19

Appellant argued that there was “no binding precedent that nonfinancial judicial records are not subject to disclosure under the RTKL.” Earlier attempts to obtain the transcripts from court reporters and appellee had failed.

Appellee argued that the OOR had changed its position the previous year on the nonfinancial records being subject to the RTKL, violating the separation of powers, in addition to granting more transcripts than previously. The court granted appellee’s statutory appeal from the OOR decision. Appellant filed the present appeal, arguing the court erred in reversing the OOR decision and in not finding there was no precedent that nonfinancial records were not subject to disclosure.

The court reviewed the arguments de novo, and determined that §304 of the RTKL “limits the records judicial agencies must disclose to financial records.” Noting that “transcript” was not specifically defined in the rules, but deriving from Pa. R.J.A. No. 5000.2’s definition of “court recorder,” the court determined “transcript” to mean “recorded testimony or other spoken material.” Transcript of a trial included juror examinations for competency, opening/closing statements, and identification of written documents as exhibits of evidence. The RTKL defined “judicial record” as related to finances. By comparing the two definitions, the court determined that a transcript, being “a record of testimony or other spoken material,” did not fit the categories of financial-type records envisioned by the RTKL as open to the public. It determined that the OOR “committed an error of law in concluding otherwise.”

C.P. of Philadelphia County, March Term, 2015 No. 4407; 754 CD 2016

James Magee, pro se appellant.Michael Robert Scalera, for appellee.

PADILLA, J., July 15, 2016—Appellant, James Magee, appeals this court’s Order of April 14, 2016, granting Appellee the Philadelphia District Attorney’s Office’s statutory appeal from a final determination of the Pennsylvania Office of Open Records (“OOR”).

FINDINGS OF FACT AND PROCEDURAL HISTORY

20 Pa. D. & C.5thMagee v. Philadelphia DA’s Office

On January 13, 2015, Appellant filed a request pursuant to the Right to Know Law (“RTKL”), §§ 67.101 et seq., seeking transcripts of several specified proceedings before Judge Arthur S. Kafrissen. See Final Determination, p. 1.

On January 18, 2015, the Office denied the Request on the basis that the requested records were judicial records not subject to the RTKL See Final Determination, p. 1.

On February 2, 2015, Appellant appealed to the OOR, challenging the denial and stating grounds for disclosure; though the OOR invited both parties to supplement the record, neither party made submissions on appeal. See Final Determination, p. 2.

On March 6, 2015, the OOR issued a final determination, granting Appellant’s request and requiring Appellee to provide copies of all responsive records within thirty (30) days. See Final Determination, p. 4. The OOR reasoned that, because the Request sought records in the possession of Appellee, a local agency, the OOR had jurisdiction to hear the appeal. The OOR held that because Appellee had not submitted any evidence demonstrating that the transcripts were exempt under the RTKL, or were otherwise protected from full disclosure, it had not met its burden of proof under the RTKL. See 65 P. S. § 67.305; Final Determination, pp. 3-4.

The instant matter commenced on April 2, 2015, when Appellee the Philadelphia District Attorney’s Office filed a timely Notice of Appeal from the final determination of the Pennsylvania Office of Open Records, granting Appellant’s request pursuant to the RTKL.


On August 4, 2015, Appellee filed its brief. Appellee argued that the OOR lacked jurisdiction to hear Appellant’s appeal and that in any event, the court transcripts are nonfinancial judicial records not subject to disclosure under the RTKL. Specifically, Appellee argued that the OOR disregarded the Commonwealth Court’s holding in Court of Common Pleas of Lackawanna County v. OOR, 2 A.3d 810 (Commw. Ct. 2010), that nonfinancial judicial records “always remain the records of the court” even if in the possession of a non-judicial agency. See Appellee’s Brief, p. 6. Appellee argued that the OOR’s holding would encourage requesters to flood Appellee’s offices with RTKL requests for transcripts rather than acquiring them through the procedures set forth in the Pennsylvania Rules of Judicial Administration. Appellee argued that per the rules of Judicial Administration, court reporters are judicial employees and that the notes of testimony of court proceedings, stenographic notes, tapes, rough draft transcripts or other media used by court personnel to record . . .a proceeding ... are the exclusive property of the judicial district.1 See Appellee’s Brief, p. 7-8.

On September 10, 2015, Appellant filed his brief. Appellant argued that the OOR did have jurisdiction to hear his request and that the transcripts were subject

1. The section of the Rules of Judicial Administration cited by Appellant does not go into effect until January 1, 2017. The current Rules of Judicial Administration, in effect until January 1, 2017, state that the stenographic notes, tapes, or other media used by a court reporter to record a proceeding in or for a court shall be public property, subject, however, to the vested property interest of the reporter described in these rules. 201 Pa. Code Rule 5000.13. On January 1, 2017, the Rules of Judicial Administration will be amended to state that a transcript is the exclusive property of the judicial district. PA.R.J.A. No. 4015.


to disclosure under the RTKL as there is no binding precedent that nonfinancial judicial records are not subject to disclosure under the RTKL. N. T. 4/4/16

On November 4, 2015, Appellant filed a Motion for Extraordinary Relief, requesting to participate in oral argument via audio visual conference, as he was incarcerated.

On December 4, 2015, this court granted Appellant’s Motion and scheduled oral argument for December 10, 2015.

On February 29, 2016, this court received the Certified Record from the Pennsylvania Office of Open Records.

On March 29, 2016, this court continued the scheduled oral argument to April 4, 2016.

On April 4, 2016, this court heard oral argument on the merits of the appeal.

Appellant argued that he had gone to the court reporters several times over the course of fifteen (15) years, and was informed that the court reporter who had recorded the original transcripts had retired, and the office had no access to the transcripts. Notes of Testimony, hereinafter N. T., 4/4/16 at 4. Further, Appellant argued that there is a common law right of access to public judicial records. N. T. 4/4/16 at 14.

Appellee stated it was unaware whether it actually had the transcripts, as if no appeal had been filed the transcripts might not have been ordered. N. T. 4/4/16 at 5. Appellee argued the “bigger” issue was that over the


last few years, the OOR had increased the number of requests for transcripts that it granted under the Right to Know Law. N. T. 4/4/16 at 5. Appellee argued that the OOR had previously held that transcripts are judicial records, and were nonfinancial judicial records not subject to the RTKL, and that at some point over the last year the OOR had reversed their position on the issue. N. T. 4/4/16 at 5-6. Appellee argued that court reporters are judicial employees, and any transcripts produced are thus judicial records. N. T. 4/4/16 at 7. Appellee argued that previous Commonwealth Court cases had held that nonfinancial judicial records were not subject to the RTKL and that the OOR’s determination to the contrary violated the separation of powers doctrine and vitiated the general supervisory authority of the Supreme Court of Pennsylvania over the courts and personnel of the Unified Judicial System. N. T. 4/4/16 at 7-8. Appellee argued that judicial records do not lose their protected status once in the hands of another agency. N. T. 4/4/16 at 8.

On April 14, 2016, this court granted Appellee’s statutory appeal from the final determination of the Office of Open Records.

On May 6, 2016, Appellant filed a timely Notice of Appeal to the Commonwealth Court of Pennsylvania.

On May 10, 2016, this court issued its Order pursuant to Pa. R.A.P. 1925(b), directing Appellant to file its Concise Statement of Matters Complained of on Appeal within twenty-one (21) days.

On May 27, 2016, Appellant filed his Concise Statement of Matters Complained of on Appeal, arguing that this


court erred in: reversing a decision of the Pennsylvania Office of Open Records when it “indeed held that it had jurisdiction over Appellant’s request to direct [Appellee] to grant access to transcripts;” in “[not finding] that there existed no binding precedent. . . that nonfinancial judicial records are not subject to disclosure under the RTKL even when those nonfinancial records are no longer in the possession of the Judicial Branch of government;” that Appellant’s affidavit had established he had no other remedy at law and that it was “error for the Court to reverse based on the lack of any other available remedy;” and that Appellant had an independent ground for relief based on his common law right to obtain public information in the possession of the agency.

CONCLUSIONS OF LAW

The RTKL is the statute providing for access to public records in Pennsylvania. Bowling v. Office of Open Records, 75 A.3d 453, 455 (Pa. 2013). This court’s scope as the first level of appellate review per Chapter 13 of the Right to Know Law is de novo and shall contain findings of fact and conclusions of law based upon the evidence as a whole, clearly and concisely explaining the rationale of the decision. Com., Pennsylvania Gaming Control Bd. v. Office of Open Records, 48 A.3d 503, 507 (Pa. Commw. Ct. 2012) appeal granted, 74 A.3d 1027 (Pa. 2013); In re Right to Know Law Request Served on Venango Cnty.’s Tourism Promotion Agency, Lead Econ. Dev. Agency, 83 A.3d 1101, 1105 (Pa. Commw. Ct. 2014); 65 P.S. § 67.1301(a). A reviewing court may substitute its own findings of fact for that of the agency. Gaming Control Board, 48 A.3d at 507.


The RTKL requires agencies to disclose public records and provides that “a record in the possession of a Commonwealth agency... shall be presumed to be a public record.” 65 P. S. § 67.305(a). Upon receipt of a written request for access to a record, an agency shall make a good faith effort to determine if the record requested is a public record ... and whether the agency has possession ... of the identified record.” 65 P. S. § 67.901. The burden of proving a record of the Commonwealth or local agency is exempt from public access is on that agency, by a preponderance of the evidence standard. 65 P. S. § 67.708(a)(1). Section 304 of the RTKL limits the records judicial agencies must disclose to financial records. See 65 P.S. § 67.304.

A judicial agency is a court of the Commonwealth or any other entity or office of the unified judicial system. 65 P. S. § 67.102. The Rules of Judicial Administration define a court reporter as “any person employed by a court to record testimony or other spoken material, whether by machine or manual shorthand, electronic recording or other means. Part-time, substitute and contract reporters are included, except where manifestly not appropriate.” PA.R.J.A. No. 5000.2. Court reporters are appointed by the president judge of each judicial district. PA.R.J.A. No. 5000.4. Court reporters are employees of a judicial agency.

The RTKL defines a judicial record as any of the following: any account, voucher, or contact dealing with the receipt or disbursement of funds by an agency or an agency’s acquisition, use, or disposal of services, supplies, materials, equipment, or property; the salary or other payments or expenses paid to an officer or employee of an agency, including the name and title of the officer or


employee; and a financial audit report, with the exclusion of work papers underlying an audit. 65 P. S. § 67.102. The Rules do not provide a specific definition of transcript, but based upon the definition of “court reporter,” a transcript is recorded testimony or other spoken material, by machine or manual shorthand, electronic record, or other means; and a transcript of a trial specifically is defined as “the voir dire examination of jurors, opening or closing statements of counsel, or the reading into the record or for the benefit of the jury any written document which is also accepted into evidence as an exhibit, shall be recorded, but not transcribed, unless otherwise ordered.” PA.R.J.A. No. 5000.2.

In the case relied upon by Appellee, the Commonwealth Court of Pennsylvania has held that where there was no allegation the records requested were financial records, any record produced by a judicial employee is a record of a judicial agency, and the only consideration is whether the producer of said record was a judicial employee to decide the case. Court of Common Pleas of Lackawanna Cty. v. Pennsylvania Office of Open Records, 2 A.3d 810, 813 (Pa. Commw. Ct. 2010). The RTKL defines a judicial record as any of the following: any account, voucher, or contact dealing with the receipt or disbursement of funds by an agency or an agency’s acquisition, use, or disposal of services, supplies, materials, equipment, or property; the salary or other payments or expenses paid to an officer or employee of an agency, including the name and title of the officer or employee; and a financial audit report, with the exclusion of work papers underlying an audit. 65 P. S. § 67.102.


A transcript is thus a record of testimony or other spoken material, produced by an employee of a judicial agency, that is not an account, voucher, or contact dealing with the receipt or disbursement of funds by an agency or an agency’s acquisition, use, or disposal of services, supplies, materials, equipment, or property; the salary or other payments or expenses paid to an officer or employee of an agency, including the name and title of the officer or employee; and a financial audit report, with the exclusion of work papers underlying an audit. Consequently, it is not subject to disclosure under the RTKL, and the OOR committed an error of law in concluding otherwise.

CONCLUSION

For all of the reasons stated above, this court’s order should be affirmed.

Buttaccio v. American Premier Underwriters Inc.

Workplace injuries — Railroad — Post-trial motions — Expert witness testimony — Ergonomic risk factors — FELA

A jury found in favor of a railroad employee who suffered injury as a result of physical workplace stressors. In the context of a plentitude of similar injuries, the employer should have known there was a problem and moved to address it, but did not. Defendants’ attempts to compel a new trial on the basis of error in allowing plaintiff’s expert to testify, denial of their expert’s testimony on hereditary factors, and the existence of “inflammatory statements” preventing a fair trial all failed. The court found no error or abuse of discretion in the trial court’s ruling, and recommended the judgment be affirmed.

Plaintiff Michael Buttaccio worked for defendants CSX Transportation, Inc. and Consolidated Rail Corporation for 38 years as a freight carman and car inspector. Over time, he developed injuries to

28 Pa. D. & C.5thButtaccio v. American Premier Underwriters Inc.

his shoulder and wrist joints, allegedly caused by his work. He brought a claim against the above defendants and co-defendant American Premier Underwriters Inc. On Nov. 16, 2015 a jury found in favor of plaintiff and against defendants for $600,000, with plaintiff 0.5 percent responsible. Defendants appealed. In its review of the arguments, the court requested affirmation of the trial court’s evidentiary rulings and judgment.

On appeal, defendants alleged the court erred in allowing the testimony of plaintiff’s expert witness, including the denial of judgment to defendants solely on the grounds of his testimony and denying the motion to exclude the use of claims data; allowing evidence that defendants lacked an ergonomics/medical surveillance program; allowing plaintiff’s counsel’s “inflammatory statements;” and in excluding defendants’ medical expert from testifying.

Defendants argued that under Frye v. United States, the Dr. Robert Andres’ testimony should not have been admitted since it was based on a novel methodology and did not “objectively measure the actual forces plaintiff was exposed to on the job.” The court disagreed. It determined that Andres’ methodology was not new, but rather based on publications from NASA, NIOSH, OSHA, and the Federal Railroad Administration. Also, Dr. Andres had performed 24 site inspections of carmen’s workplaces while preparing another FELA case. The decision to allow the testimony was correct since it was the jury’s prerogative to decide the weight to be given to the testimony.

Defendants argued that Andres’ inclusion of claims data of previous injuries in the profession was irrelevant and prejudicial, in that the similarity was not established before introduction. Plaintiff’s opening statement made reference to “thousands of carpal tunnel syndrome claims against the railroads” and Andres referred to a memorandum document that discussed the stresses of the carmen’s work. The trial court found the documents substantially similar and relevant wince they addressed shoulder, arm, and knee injuries. Further, with that knowledge defendants “were on notice and could have collected claims data for use in work site analysis.” The quantity of claims should have been a signal to figure out why so many occurrences happened at a given facility and address the problem. The denial of the motion to preclude this was proper.

Andres’s testimony included discussion of defendants’ lack of an ergonomics program. Defendants argued that they had no duty to institute such a program. Andres indicated that his report intended to show when a “reasonable employer should have known about the ergonomic risk factors associated with work-related musculoskeletal disorders (WMSDs) and what the reasonable employer should have done

Buttaccio v. American Premier Underwriters Inc. 29 (2016)28

to reduce risk.” Allowing the testimony was deemed proper.Defendants’ witness, Dr. Jon Tucker, was to testify about the effect

of genetics and hereditary factors on plaintiff’s symptoms, to support a theory of how genetics influences degenerative conditions. Tucker, however, did no genetic testing on plaintiff or research into his family history and thus the testimony would have been speculative. It was properly denied.

Regarding defendants’ argument for a new trial or JNOV, that evidence of negligence was based only on Andres’ testimony and it should have been excluded, the court pointed out that the trial court’s decision would be reversed only for proven abuse of discretion or error of law. Andres’ testimony was properly admitted, not based on a novel methodology, and the court found a Frye hearing unnecessary.

C.P. of Philadelphia, May Term, 2014 No. 02115

David L. Lockard, for plaintiff.Stephen A. Hall, T.H. Lyda, John J. DiChello, Jr., Louis

D. Abrams, Robert M. Palumbos, Sharon L. Caffrey and Erica Fruiterman, for defendants.

BUTCHART, J., July 26, 2016—

I. FACTUAL AND PROCEDURAL HISTORY

This is a case under the Federal Employers’ Liability Act (“FELA”), which was tried before a jury from October 30, 2015 to November 13, 2015. Plaintiff Michael Buttaccio (“Plaintiff”) brought a claim for negligence against Defendants for injuries, including injuries to his shoulder and carpel tunnel syndrome, allegedly caused by Plaintiff’s work as a freight carman and car inspector over a period of 38 years for Defendants. Defendants’ appeal challenges the Court’s pre-trial rulings and the Court’s denial of judgment in favor of Defendants.

On November 16, 2015, a twelve-member jury delivered a verdict in favor of Plaintiff and against


Defendants American Premier Underwriters, Inc., Consolidated Rail Corporation and CSX Transportation, Inc. (“Defendants”) for $600,000. Plaintiff was determined to be .5% negligent. On November 18, 2015, Defendants filed a Post-Trial Motion.1 On April 27, 2016, the Court denied Defendants’ Post-Trial Motion. On May 19, 2016, Defendants filed a Notice of Appeal. On June 13, 2016, Defendants filed a Statement of Errors Complained of on Appeal (“Statement”), which argues:

1. The trial court erred by denying Defendants’ motion to exclude the testimony of Plaintiff’s ergonomics expert, Robert Andres, because Dr. Andres’ testimony relied on a methodology that is not generally accepted in the field of ergonomics, and is therefore unreliable and inadmissible expert testimony under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). See Davies v. SEPTA, No. 2310 CD. 2006, 2009 Pa. Commw. Unpub. LEXIS 352, at **11-12 (Feb. 12, 2009) (excluding Dr. Andres’ testimony because of the unreliability of his methodology); Post-Trial Mot. ¶¶ 153-68. Among other things, Dr. Andres’ novel methodology for assessing how Plaintiff’s job led to his injuries did not objectively measure the actual forces Plaintiff was exposed to on the job, but instead relied on Dr. Andres’ mistaken assumptions and anecdotal observations.

2. The trial court erred by not entering judgment for Defendants, where the only evidence of negligence introduced by Plaintiff was the testimony of Dr. Andres, who should have been excluded from testifying at trial.

1. Post-Trial Motion under Control Number 15113118.


See Post-Trial Mot. ¶¶ 71-102.

3. The trial court erred by denying Defendants’ motion to preclude the use of claims data cited by Dr. Andres’ expert report and produced by Defendants in past cases, where the court did not evaluate whether such data was substantially similar to Plaintiff’s claims, and where those claims were, in fact, not substantially similar to Plaintiff’s claims. That evidence was irrelevant, unfairly prejudicial, and created a significant risk of confusing the issues and misleading the jury. See Post-Trial Mot. ¶¶ 233-242.

4. The trial court erred by denying Defendants’ motion to preclude allegations that Defendants failed to have an ergonomics program and/or medical surveillance program, and by permitting Plaintiff to introduce evidence showing that Defendants lacked ergonomics and medical surveillance programs, where Defendants have no duty to create such programs and where there is no medical evidence to support a causal connection between the failure to create such a program and Plaintiff’s injuries. See Post-Trial Mot. ¶¶ 243-49. The admission of this evidence was irrelevant, unfairly prejudicial, and created a significant risk of confusing the issues and misleading the jury.

5. The trial court erred by entering judgment against Defendants and holding that Defendants were not entitled to mistrial or a new trial because Defendants were unduly prejudiced by the overall impact of Plaintiff’s counsel’s numerous inflammatory statements and repeated violations of the court’s evidentiary orders


during trial, as identified in Defendants’ Post-Trail Motion. See Post-Trial Mot. ¶¶ 250-68.

6. The trial court erred by granting Plaintiff’s motion to exclude the testimony of Defendants’ medical expert, Jon Tucker, concerning the impact genetics and hereditary/phenotypic factors may have had on Plaintiff’s symptoms, because Dr. Tucker, among other things, used generally accepted definitions of “genotype” and “phenotype,” relied on diagnostic clinical and evidence-based medicine, and cited to a peer reviewed publication in a testimonial affidavit filed in support of his opinion. Even without the benefit of argument or an evidentiary hearing, the Defendants met their burden of proving that Dr. Tucker employed a generally accepted methodology to reach the conclusion that genetics is a factor in the development of degenerative conditions, and therefore his testimony was reliable and admissible expert testimony under Frye. See Post-Trial Mot. ¶¶ 269-91.

See Statement at ¶¶ 1-6.

II. DISCUSSION

Defendants raise six issues on appeal. Three of Defendants’ issues concern either Dr. Robert Andres’ testimony or his expert report where Defendants argue: (1) the Court erred when it denied Defendants’ motion to exclude Dr. Andres’ testimony; (2) the Court erred when it denied judgment for Defendants because the only evidence of negligence came from Dr. Andres and his testimony should have been excluded; and (3) the Court erred when it granted Defendants’ motion to exclude the


use of “claims data” cited in Dr. Andres’ expert report.

The remaining issues include Defendants’ arguments that: (4) the Court erred when it denied Defendants’ motion to preclude evidence of Defendants’ lack of ergonomics program/medical surveillance program; (5) the Court erred when it denied Defendants’ motion for mistrial/new trial because of Plaintiff’s counsel’s “inflammatory statements” and violations of the Court’s evidentiary orders; and (6) the Court erred when it granted Plaintiff’s motion to exclude the testimony of Dr. Jon Tucker and precluded Defendants’ medical expert, Dr. Tucker, from testifying.

a. Motions in Limine

Defendants argue that the Court abused its discretion when it ruled against four of Defendants’ Motions in Limine: first, when the Court denied Defendants’ Motion to exclude Dr. Andres’ testimony because his methodology was not generally accepted in the scientific community and therefore unreliable and inadmissible under Frye; second, when the Court denied Defendants’ Motion to preclude the use of “claims data” cited in Dr. Andres’ report; third, when the Court denied Defendant’s Motion to preclude allegations that Defendants failed to have an ergonomics program, and fourth, when the Court granted Plaintiff’s Motion to exclude the testimony of Defendants’ medical expert Dr. Jon Tucker.

Motions in limine are used to obtain a ruling on the admissibility of evidence before trial. Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. Ct. 2014); Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., Inc.,


933 A.2d 664 (Pa. Super. Ct. 2007). “It gives the trial judge the opportunity to weigh potentially prejudicial and harmful evidence before the trial occurs, thus preventing the evidence from ever reaching the jury.” Id. (quoting Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. Ct. 2011). A trial court’s decision to grant or deny a motion in limine “is subject to an evidentiary abuse of discretion standard of review.” Id. The admissibility of evidence lies within the sound discretion of the trial court and will not be reversed absent a clear abuse of discretion. Id.; Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d 492, 496 (Pa. Super. Ct. 2011) Id. “An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.” Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003). “[T]o constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.” Parr, 109 A.3d at 690-91.; Winschel v. Jain, 925 A.2d 782, 794 (Pa. Super. Ct. 2007).

1. The Admission of Dr. Robert Andres’ Testimony2

Testimony of an expert witness is governed by Pa.R.E. 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

2. Motion in Limine under Control Number 15102031.


(a) the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;

(b) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the relevant field.

Part of Rule 702 comes from the Frye test:

The Frye test, first announced in Frye v. United States, 293 F. 1013 (D.C. Cir 1923), and adopted in Pennsylvania in Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977), is part of Rule 702. Under Frye, novel scientific evidence is admissible if the methodology that underlies the evidence has general acceptance in the relevant scientific community.

Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1043-44 (Pa. 2003); See Commonwealth v. Blasioli, 713 A.2d 1117, 1119 (Pa. 1998). “The Frye test makes the admission of expert testimony dependent upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs.” Id. at 1042-43. The Superior Court has stated that “Frye does not apply every time science enters the courtroom”, however, Frye “does apply where an expert witness employs a novel scientific methodology in reaching his or her conclusion.” Folger ex rel. Folger v. Dugan, 876 A.2d 1049, 1058 (Pa. Super. Ct. 2005); Track v. Fellin, 817 A.2d 1102, 1109 (Pa. Super. Ct. 2003).


Defendants in the instant matter argue that Dr. Andres’ testimony and expert report rely on methodology not generally accepted in the field of ergonomics and that Dr. Andres’ novel methodology for assessing how Plaintiff’s job led to his injuries did not objectively measure the actual forces Plaintiff was exposed to on the job. Here, the Court properly denied Defendants’ motion requesting a Frye hearing and determined that Dr. Andres’ testimony was not based on a novel methodology. N.T., Nov. 2, 2015, Morning Session at 4-5. Dr. Andres’ testimony and expert report were based upon his education, biometric and ergonomics programs based on publications from NASA, the National Institute of Occupational Safety and Health, the Occupational Safety and Health Administration, and the Federal Railroad Administration. Additionally, Dr. Andres performed twenty-four site inspections of railroad carmens’ workplaces and visited the Rochester Yard in preparation for another FELA case. N.T., Nov. 4, 2015, Morning Session at 33-41; 48-52. Also see Motions Hearing, N.T., Oct. 30, 2015 at 49-62.

The Court properly denied Defendants’ motion to preclude Dr. Andres’ testimony as it was for the jury to decide the weight to be given to Dr. Andres’ testimony after hearing his qualifications and the facts, data and conclusions upon which he based his opinions.

2. The Use of “claims data “ in Dr. Robert Andres’ Expert Report3

Defendants argue that Dr. Andres’ use of claims data of previous injuries was irrelevant and improperly admitted



into evidence. See Defendants’ Post-Trial Memorandum at 60. Defendants contend that the “railroads were prejudiced by this Court’s failure to determine the issue of substantial similarity outside the presence of the jury...” Id.

The Superior Court has stated:

Evidence of prior accidents involving the same instrumentality is generally relevant to show that a defect or dangerous condition existed or that the defendant had knowledge of the defect. However, this evidence is admissible only if the prior accident is sufficiently similar to the incident involving the plaintiff which occurred under sufficiently similar circumstances. The burden is on the party introducing the evidence to establish this similarity before the evidence is admitted.

Lockley v. CSX Transp. Inc., 5 A.3d 383, 395 (Pa. Super. Ct. 2010) (quoting Valentine v. Acme Markets, Inc., 687 A.2d 1157, 1162-63 (Pa. Super. Ct. 1997). “A wide degree of latitude in the determination of whether such evidence should be admitted is vested in the trial court.” Lockley, 5 A.3d at 396 (Pa. Super. Ct. 2010); Lynch v. McStome & Lincoln Plaza Associates, 548 A.2d 1276, 1279 (Pa. Super. Ct. 1988).

Here, Defendants were free to cross-examine Dr. Andres on any of the data introduced into evidence. Defendants argue that Plaintiff’s opening statement wherein reference was made to thousands of carpel tunnel syndrome claims


against the railroads without any specificity was prejudicial. See Defendants’ Post-Trial Brief at 59. Defendants further argue that Plaintiff was improperly permitted to introduce a memorandum as Exhibit 38, because it was irrelevant and prejudicial.4 Dr. Andres testified that the document was relevant because:

...it talked about the particular craft [Plaintiff] worked in. It talks about carmen, and it talks about some of the particular stresses that are involved with the work of carmen. To me, it’s Conrail acknowledging that...there’s some stresses involved with doing these jobs and carmen are included in those.

N.T., Nov. 4, 2016, Morning Session at 56. The Trial Court concluded that the documents introduced were substantially similar and relevant to Plaintiff’s claims in that they dealt with injuries to the shoulder, arm and knee. Additionally, the Trial Court accepted Plaintiff’s argument that Dr. Andres’ claims data not only was introduced to discuss the particular claims, but also to demonstrate that Defendants were on notice and could have collected claims data for use in work site analysis. Plaintiff argued in his motion that in Exhibit 38 (supra.), Conrail analyzed 40 or 50 railroad jobs, one of which was for repairman. See Defendants’ Post-Trial Brief at 128-144; also see, N.T., Motions Hearing, Oct. 30, 2015 at 39. Plaintiff stated: “[The Conrail document shows]...what the average carman is going to be exposed to as he or she performs his or her work. So[,] you have the railroad saying this

4. Exhibit 38 was identified as “Ewing’s memo re: Risky Activities by Craft.”


is substantially similar work.” Plaintiff stated Dr. Andres employed the claims data to inform the jury that the claims data “is a signal to the railroad [that]...if you get this number of claims, you go look at the facility, you go look at the job, you try and figure out why it is you’re getting them and it’s evidence that you have a problem.” N.T., Motions Hearing, Oct. 30, 2015 at 41.

Defendants’ motion in limine to preclude the use of claims data was properly denied.

3. Dr. Andres’ Testimony About Defendants’ Lack of an Ergonomics Program5

Defendants’ argue that Dr. Andres’ testimony about Defendants’ lack of an ergonomics program was unfairly prejudicial and that Defendants’ had no duty to create such a program.

As stated above, Dr. Andres’ testimony was not based on a novel methodology. See supra. at 6. Dr. Andres, in his expert report, stated the purpose of testifying about Defendants’ lack of an ergonomics program:

My evaluation of the actions of Conrail/CSXT in regard to their treatment of ergonomics issues within their safety and health program will address when a reasonable employer should have known about the ergonomic risk factors associated with work-related musculoskeletal disorders (WMSDs) and what the reasonable employer should have done to reduce risk by removing or reducing exposure to these risk factors



See Dr. Andres’ Expert Report at 3. Defendants’ motion on limine to preclude testimony about Defendants’ lack of an ergonomics program was properly denied.

4. Exclusion of Dr. Jon Tucker’s Testimony About Genetics, Phenotypes and Heredity6

Defendants’ contend that the Trial Court erred when it granted Plaintiff’s motion in limine to exclude Dr. Tucker’s testimony about genetics, heredity and phenotypes. Defendants’ further argue that Dr. Tucker employed a generally accepted methodology and that he relied on a peer reviewed publication.

The Trial Court determined that Dr. Tucker’s testimony concerning Plaintiff’s genetics and phenotype would have been speculative and not based on the facts in this case, because no genetic testing had been done on Plaintiff. N.T., Nov. 2, 2015, Morning Session at 4. Dr. Tucker had no knowledge of Plaintiff’s genetic make-up or information about Plaintiff’s family history, heredity or phenotypes. Additionally, Dr. Tucker never conducted any medical studies in genetics or authored any publications about genetics. See Plaintiff’s Post-Trial Memorandum at 181.

b. The Trial Court’s Denial of Judgment Notwithstanding the Verdict, Mistrial or New Trial in Favor of Defendants

5. Motion for Judgment Notwithstanding the Verdict

Defendants argue that the Court should have granted their Motion for J.N.O.V. because Dr. Andres’ Testimony was the only evidence of negligence and it should have



been excluded. See Defendants’ Post-Trial Motion at ¶¶71-102.

Appellate review of a denial of J.N.O.V. is narrow and the trial court will only be “reversed in the event the trial court abused its discretion or committed an error of law that controlled the outcome of the case.” Sears, Roebuck & Co. v. 69th St. Retail Mall, L.P., 126 A.3d 959, 967 (2015); Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa. Super. Ct. 2005). An “[a]buse of discretion occurs if the trial court renders a judgment that is manifestly unreasonable, arbitrary or capricious; that fails to apply the law; or that is motivated by partiality, prejudice, bias or [ill will].” Id. An appellate court must view the evidence in the light most favorable to the verdict winner and should only grant J.N.O.V. in a clear case. Sears, Roebuck & Co., 126 A.3d at 967; Hutchison ex rel. Hutchison v. Luddy, 896 A.2d 1260, 1265 (Pa. Super. Ct. 2006); Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 569 (Pa. Super. Ct. 2006). “It is axiomatic that there are two bases upon which [J.N.O.V.] can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.” Sears, Roebuck & Co., 126 A.3d at 967

Here, the Trial Court properly admitted Dr. Andres’ testimony, denied Defendants’ motion requesting a Frye hearing and determined that Dr. Andres’ testimony was not based on a novel methodology. See supra. at 6; N.T., Nov. 2, 2015, Morning Session at 4-5.


6. Plaintiff’s Counsel’s “inflammatory statements” and Alleged Violations of the Court’s Evidentiary Orders

In their Post-Trial Motion, Defendants put forth a laundry list of objections made during trial and argue that “[e]ach one of Plaintiff’s counsel’s improper actions and comments warrants a new trial.” The Trial Court disagrees. Defendants further argue that the cumulative effect of Plaintiff’s counsel’s “inflammatory statements” so prejudiced the jury as to prevent a fair trial. See Defendants’ Memorandum to their Post-Trial Motion at 68. Here, the Trial Court also disagrees. Defendants paint a picture of a trial where hardly anything was done properly as evidenced by their overwrought Post-Trial Motion. Defendants’ Post-Trial Motion lists as many as thirty-nine objections, all of which allegedly warrant a new trial. See Defendants’ Memorandum to their Post-Trial Motion at 65-6.

Trial courts have broad discretion to grant or deny a new trial. Harman ex rel. Herman v. Borah, 756 A.2d 1116, 1121 (Pa. 2000): See also Martin v. Evans, 711 A.2d 458, 461 (1998); Morrison v. Commonwealth, Dept. of Public Welfare, 646 A.2d 565, 570 (Pa. 1994); Coker v. S.M. Flickinger Co., Inc., 625 A.2d 1181, 1184 (Pa. 1993). “The grant of a new trial is an effective instrumentality for seeking and achieving justice in those instances where the original trial, because of taint, unfairness or error, produces something other than a just and fair result, which, after all, is the primary goal of all legal proceedings.” Harman, 756 A.2d at 1121; Dornon v. McCarthy, 195 A.2d 520, 522 (Pa. 1963). Absent a clear abuse of discretion by the trial court “appellate courts must not interfere with the trial


court’s authority to grant or deny a new trial.” Harman, 756 A.2d at 1122.

Of the thirtynine objections cited by Defendants, one is mentioned with specificity as warranting a new trial. See Defendants’ Memorandum to their Post-Trial Motion at 66-7. At trial Plaintiff’s counsel asked Defendants’ witness, Dennis Broadbent (Plaintiff’s supervisor at the railyard): “Was that after two CSX carmen were killed?” Upon Defendants’ objection, the follow exchange occurred:

MR. HALL: Objection; [move] to strike.

THE COURT: That last question will be stricken from the record.

MR. HALL: May we approach, Your Honor?

(Whereupon, the following occurred at sidebar:

THE COURT: Put your objection on the record.

MR. LYDA: My first objection, last time, was manpower. This one is just to shame us that Mr. Lockard would bring up something so completely prejudicial in front of the jury. Move for a mistrial based on that.

THE COURT: Response.

MR. LOCKARD: I’m trying to establish why he was moved out of one position to another. That he was not a competent leader, and that under his supervision, as I understand it, two — at least two, possibly more carmen were killed at work. So it goes to his competence and his knowledge of safety. This case is about safety. And if he’s being moved around because he’s an incompetent


leader on safety, I think that’s relevant.

THE COURT: Mr. Lockard, if you try this again you will be sanctioned financially. That was a shameless attempt to prejudice this jury and I won’t tolerate it. If you try it again I will grant their motion for mistrial. Any questions about where we are on this?

MR. LOCKARD: No, Your Honor.

MR. HALL: Can we get a curative instruction of some kind? I don’t even know how we can fix this honestly, it’s so bad.

THE COURT: I’ll simply say the jury will disregard that last statement. It’s not relevant to this case.

(Whereupon, the sidebar discussion was concluded.)

THE COURT: If you’ll restate your question, please.

N.T., Nov. 12, 2015 at 89-91.

Here, the Trial Court struck Plaintiff’s Counsel’s question from the record and moved on. The Trial Court concluded that the one unanswered question posed to the witness did not warrant a new trial. Furthermore, Defendants have not established that the cumulative effect of Plaintiff’s Counsel’s alleged improper actions prevented a fair trial.

III. CONCLUSION

For all of the foregoing reasons, the Trial Court’s evidentiary rulings and judgment should be affirmed.


Documents

McCarthy v. Buckno Lisicky & Co