Robert F. Jennings and Barbara S. Jennings, his wife,
Plaintiffs
v.
Delaware & Hudson Canal Company,
its successors and assigns, and all persons claiming any right, title
or interest in the subject premises
Defendants

Docket No. 468-2010-CV

Attorney for Plaintiffs: Ronald M. Bugaj, Esq.

Attorneys for Intervenors Harold and Sheila Sullum: Errol C. Flynn, Esq.

Decided by: Raymond L. Hamill, P.J.

Summary of the Case

In May 2011, the Court issued an Opinion and Order that Plaintiffs in this Quiet Title Action did not meet their burden in proving ownership of a 40 by 60 foot vacant lot in the Borough of Honesdale by adverse possession because their use lacked exclusivity. At that time, the Court also provided Defendants with a prescriptive easement over the vacant lot. Plaintiffs are the owners of a jewelry and photography store on Main Street and Defendants were the owners of a retail clothing store across from the vacant lot between the two parties= businesses.

As a result of the Court=s determination, Plaintiffs filed post-trial motions to which Defendants filed an Answer containing a counter-motion for post-trial relief.  Plaintiffs= motion was granted following argument, and the Court provided for a new trial on the issue of proving Plaintiffs= claim for fee simple title to the vacant lot by adverse possession.

The trial was held on February 6, 2012, following which the Court issued Findings of Fact.  Relevant to this summary, the Court determined that neither party ever objected to the vacant lot being used for employee parking.  In addition, both parties contributed to the cost of snow removal during the winter months, and Defendants contributed to the cost of blacktopping back in 1989.  The Borough never maintained nor provided any service to the vacant lot, and there are no recorded documents granting either party any ownership rights to the vacant lot.  Finally, there was no objection to the use of the lot until Plaintiffs became aware that Defendant was leasing parts of the lot to third parties for parking.  Following the objection, Plaintiffs also objected to Defendants= request for an easement for parking measuring twelve feet in width and their request to replace a staircase to the basement of Defendants= building within the 12 feet.  Finally, Plaintiffs also objected to Defendants= request for an easement for ingress and egress from the end of their building 25 feet into the vacant lot.

Joseph D. Pizzo, Plaintiff
v.
Kristen L Pizzo, Defendant

Docket No.: 77-2011-DR

Attorney for Plaintiff: Ronald M. Bugaj, Esquire
Attorney for Defendant: Thomas Mincer, Esquire

Decided By: Raymond L. Hamill, P.J.

Summary of the Case

This case came before the Court on cross petitions for primary custody of the parties= three minor children.  After conducting two days of hearings, the Court made a number of Findings of Fact relevant to a discussion of the case, including: 1) that the parties= separation was marked by cross PFA=s, both of which resulted in final orders from Pike County; 2) both homes were reasonably clean and appropriate for the minor children; 3) that the relationship between the parties= oldest child and Mother was extremely strained because of a history of abuse on Mother=s part; 4) that counseling had been attempted several times but discontinued by Mother; 5) that the parties are unable to communicate with each other without resorting to name-calling in front of the children; and 6) that the middle child has special needs.

The Court=s discussion began with the standard and paramount concern of all custody cases, what is in the best interest of the children.  McMillen v. McMillen, 602 A.2d 845 (Pa. 1992). In addition, the Court must consider and discuss the relevant factors from a list set forth in 23 Pa.C.S.A. ‘ 5328 in determining the best interest of the children. In this case, the Court determined that since the parties= households were fairly equal, Mother=s strained relationship with her oldest daughter impacted greatly on its decision since she could not reside with her mother and there was no compelling reason to split the children.  See Custody of Myers, 363 A.2d 1242 (Pa.Super. 1976).  As a result, the Court awarded primary physical custody of the children to Father.

The Court opined, AAs Father is willing and able to provide a suitable home for all three children and until Mother has addressed the issues which interfere with a meaningful relationship with R.P. in this Court=s judgment there is no other alternative.@  As set forth in Johns v. Cioci, 865 A.2d 931, 943 (Pa.Super. 2004): AThe question of suitability of the households is particularly important because, when the households are equally suitable, the preference of the child can tip the scales in favor of one or the other. (citations omitted).  Even when the trial court gives little weight to a child=s preference, that preference may still be determinative if the households are equally suitable.@

Finally, the Court considered whether to grant shared legal custody to the parties given the parties= inability to cooperate enough to communicate with each other regarding the best interest of their children.  However, the Court determined that there was some Aminimal communication which gives hope@ that the parties would be able to put aside their differences for the sake of their children, and shared legal custody was ordered.

Commonwealth of Pennsylvania
v.
Jason Allan Jones
Defendant

Docket No. 430-2011-CR

Attorney for Defendant:  Randolph T. Borden, Esquire

Decided by: Robert J. Conway, S.J.

Summary of the Case

Defendant was charged with two counts of Driving Under the Influence and the case was before the Court on Defendant=s Omnibus Pre-Trial Motion.  Defendant asserted the Pennsylvania State Police trooper lacked probable cause to stop his vehicle and as result, the results of the breathalyzer test administered should be excluded.

The Court=s findings of facts determined that the trooper initially noticed Defendant=s vehicle parked with the headlights on and the engine running at 11:00 p.m. in the parking lot of a closed business on SR-590. The trooper then observed the Defendant walking alongside the building to the truck barefoot and pulled into the parking lot, activated his lights, exited his vehicle, and asked if Defendant was okay.  At that point, the trooper asked Defendant for identification and noted the odor of alcohol on Defendant=s breath, that Defendant=s pupils were dilated, bloodshot and glassy.  After admitting to drinking 2-3 beers, the trooper performed a field sobriety test but discontinued it due to uneven ground.  However, a breathalyzer test was administered, with results of .147%.

Defendant argued that the trooper subjected him to an investigatory detention without reasonable suspicion and prevented him from leaving, likening it to a seizure of Defendant=s person.  The defense argued Athe United States Supreme Court has devised an objective test entailing a determination of whether, in the view of all surrounding circumstances, a reasonable person would believe that he was free to leave. In evaluating the circumstances, the focus is directed toward whether, by means of physical force or show of authority, the citizen-subject=s movement has in some way been restrained; in making this determination, courts must apply the totality-of-the-circumstances approach, with no single factor dictating the ultimate conclusion as to whether a seizure has occurred.@  Commonwealth v. Coleman, 2011 PA Super 84 (citing Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 889-90 (2000)).

The Court however agreed with the Commonwealth=s argument that based on all of the surrounding circumstances, the meeting between the trooper and Defendant was a Amere encounter@ which did not require any level of suspicion as set forth in Commonwealth v. Ellis, 541 Pa. 285, 293-94, 662 A.2d 1043, 1047-48 (1995).  AFourth Amendment jurisprudence has led to the development of three categories of interactions between citizens and the police.  The first of these is a >mere encounter= (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond.@ (citations omitted).

On that basis, the Court denied Defendant=s Omnibus Pre-Trial Motion.

Commonwealth of Pennsylvania
v.
John W. Lynn,
Defendant

Decided by: Raymond L. Hamill, P.J.

Attorney for Commonwealth: Michael P. Lehutsky, Esq.
Attorney for Defendant: Robert Reno, Esq.

Summary of the Case

This case was before the Court on Defendant‘s appeal of his conviction and sentence. On July 20, 2011, Defendant was found guilty of Corruption of Minors, Involuntary Deviate Sexual Intercourse and Statutory Sexual Assault and sentenced to a total period of concurrent incarceration of not less than 120 months and no more than 240 months. Defendant subsequently filed a post-trial motion seeking a new trial by challenging the validity of the conviction, but the motion was denied. As a result, Defendant filed a direct appeal to Superior Court and the Court Ordered him to file a Concise Statement of Reasons as part of the appeal, to which the Court responded with its Statement of Reasons.

Defendant raised a number of claims in his Concise Statement which were identified by the Court as a Brady violation, an error in allowing the Commonwealth to treat the complainant as a hostile witness and admitting various statements into evidence. In addition, Defendant raised claims of prosecutorial misconduct, error by the Court in its charges to the jury on impeachment, genetic evidence and expert testimony, and that the verdict was against the weight of the evidence.

Several of the issues raised by Defendant were not discussed inasmuch as they were considered to have been waived by the failure of a contemporaneous objection at the time of trial. The Court quoted our Supreme Court [t]he failure to raise a contemporaneous objection to a prosecutor‘s comment at trial waives any claim of error arising from the comment.Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 423 (2008).

In discussing the Brady violation, Defendant argued that statement read by the victim at the time of Defendant’s sentencing in which she recanted her original allegations had been previously provided to the State Police but not to the defense during discovery. In order to establish a Brady violation, a defendant is required to demonstrate that exculpatory or impeaching evidence, favorable to the defense, was suppressed by the prosecution, to the prejudice of the defendant.Commonwealth v. Gibson, 597 Pa. 402, 951 A.2d 1110, 1126 (2008). The Court therefore disagreed that a Brady violation had occurred because the defense presented no evidence that a written statement from the victim existed prior to trial, and the state trooper testified that the victim had previously only verbally recanted her previous claims.

In regards to Defendant‘s final claim that the jury‘s verdict was against the weight of the evidence, the Court set forth the relevant standard as follows: The fact-finder bears the responsibility to resolve questions of credibility, and, absent extraordinary circumstances, an appellate court will not substitute its judgment for that of the fact-finder.Commonwealth v. Johnson, 576 Pa. 23, 838 A.2d 663, 671 (2003), cert. denied, 543 U.S. 1008, 125 S.Ct. 617, 160 L.Ed.2d 471 (2004). A court is free to believe all, some, or none of the evidence presented.Commonwealth v. Miller, 555 Pa. 354, 724 A.2d 895, 901 (1999), cert. denied, 528 U.S. 903, 120 S.Ct. 242, 145 L.Ed.2d 204 (1999).

In this case, the jury was the fact-finder and could have chosen to believe the initial testimony of the victim which was given at the preliminary hearing and was inconsistent with the testimony she gave at the time of trial. When offered as an inconsistent statement, testimony from a preliminary hearing is substantive evidence that may be considered as proof of the matter asserted. Commonwealth v. Santiago, 662 A.2d 610 (Pa. 1995). The jury chose to find the testimony the victim gave at the preliminary hearing as credible and thus convicted Defendant on several of the charges.

Based on all of the reasons set forth, the Court requested the Superior Court to find no merit in Defendant‘s appeal.

No. 221 – Civil – 2010

Attorney for plaintiff: Randolph Borden, Esq.
Attorney for defendant: Jeffrey S. Treat, Esq.

 Decided by: Raymond L. Hamill, P.J.

Summary of the Case

This case is about whether a would-be seller or a would-be buyer is entitled to down payment monies relating to the sale/purchase of certain real property when the would-be buyer terminates the contract.  The would-be seller in this case is plaintiff Clinton Dennis, and the would-be buyer is defendant Forest Homes of Lake Wallenpaupack (“Forest Homes”).

This case arose out of a written agreement of sale entered into between Clinton Dennis and Forest Homes on November 20, 2007 for property located in Texas Township, Wayne County, bordering on the Lackawaxen River.  The agreement was drafted by the shareholders of Forest Homes, who indicated that the purpose of the agreement was for Forest Homes to purchase the subject property and build a series of townhouses thereon.  The parties agreed upon a purchase price of $229,000.00 for the subject property, with Forest Homes making two down payments, totaling $22,900.00, which were held in escrow with the realtor.

Forest Homes was required under the agreement to obtain any conditional use permit that might be required by the Texas Township Zoning Board.  The agreement further provided for a 90-day “feasibility period,” during which time Forest Homes could hire professionals to investigate the property regarding drainage, access, sewer, etc.  The agreement allowed for Forest Homes to terminate the agreement by written notice to Clinton Dennis during this 90-day period, and to seek the return of its down payments.  If, however, Forest Homes were to default on the agreement (presumably after the passing of the 90-day period), the agreement provided that Clinton Dennis would be entitled to receive the down payment monies as his liquidated damages.

Forest Homes did not terminate the agreement of sale during the 90-day feasibility period.  At some unspecified point in time, the parties realized that a levee may have been removed from a portion of the property, and entered into a written addendum to their agreement of sale to address this issue.  Both Clinton Dennis and Forest Homes believed that they had drafted this addendum.  The addendum provided that the transaction was contingent upon (1) Forest Homes’s obtaining confirmation from FEMA and the U.S. Army Corps of Engineers that the levee was not needed, and (2) Forest Homes’s obtaining confirmation that the subject property was not in violation of any state or federal regulations as a result of the missing levee.  If any of these contingencies were not met, the addendum provided that Clinton Dennis retained the right to declare the agreement null and void, and that the down payment monies would then be returned to Forest Homes.  The addendum further provided that after Forest Homes satisfied (1) above, Forest Homes would promptly proceed with its conditional use zoning application, and that the closing would be held within fifteen (15) days of approval by the Texas Township Zoning Hearing Board.  The addendum additionally provided that if the closing was not completed by November of 2008, either party retained the right to terminate the agreement (unless an appeal to the Zoning Hearing Board decision was pending), in which case the down payment monies would be returned to Forest Homes.

Forest Homes initially submitted a conditional use application to Texas Township, but this application was tabled by the Township at Forest Homes’s request due to the levee issue.  Forest Homes never reinstated its conditional use application, claiming that it made informal inquiries that resulted in a response from Zoning Officer Lee S. Krause that the Zoning Hearing Board would require the levee to be rebuilt.  As of November 30, 2008, no closing had yet taken place.  Because the parties were unable to agree as to who would pay to rebuild the levee, Forest Homes terminated the agreement of sale in accordance with the addendum, which termination occurred on December 10, 2008.  On December 18, 2008, Clinton Dennis notified Forest Homes that it considered Forest Homes to be in default of the agreement of sale and intended to retain the down payment as liquidated damages.  Clinton Dennis then initiated the underlying lawsuit against Forest Homes, claiming that Forest Homes breached the parties’ contract and that he was entitled to retain the down payment monies as liquidated damages, and Forest Homes counterclaimed, claiming that it was entitled to terminate the agreement and have its down payment monies return to it.

The matter proceeded to a non-jury trial before Judge Hamill on August 9, 2011, which resulted in an Opinion and Verdict dated January 17, 2012.  In this Opinion, the Court identifies the key issue as whether Forest Homes defaulted on the parties’ contract before Forest Homes terminated the contract in accordance with the agreement of sale and addendum.  Clinton Dennis argued that Forest Homes breached the agreement of sale and addendum by failing to diligently pursue obtaining a conditional use permit for the subject property, and that Forest Homes failedt to act in good faith in attempting to fulfill its requirements under the agreement of sale and addendum.  Forest Homes, in contrast, argued that it had no obligation to pursue obtaining a conditional use permit because FEMA had never confirmed whether a levee was necessary or not.

In resolving this conflict, the Court looked to language of the agreement of sale and addendum, and observed that the unambiguous language of the addendum allowed either party to terminate the agreement in the event that a closing was not completed before November 30, 2008, and further provided that if the agreement were terminated by either party after November 30, 2008, Forest Homes was entitled to the return of its down payment monies.  The Court noted that the language of this clause provided for only one exception, where an appeal of the Zoning Hearing Board decision was pending, and determined that this exception clearly did not apply.  The Court accordingly entered a verdict in favor of Forest Homes on its counterclaim in the amount of $22,900.00.

 No. 484 – Civil – 2011

 Attorney for plaintiff: Brendan D. Hennessy, Esq.
Attorney for defendant: Gerard J. Geiger, Esq.

Decided by: Robert J. Conway, S.J.

Summary of the Case

This case came before the court on simultaneous motions for judgment on the pleadings and summary judgment filed by the defendant, Pike County (“the County”), based upon a statute of limitations defense.

This case arose out of the firing of the plaintiff from her employment as director of Pike County Children & Youth Services, which termination occurred on February 25, 2009. The plaintiff claimed that she was wrongfully terminated under Pennsylvania’s Whistleblower Law (43 P.S. § 1421 et seq.). The plaintiff first asserted her wrongful termination claim against the County by filing a complaint in federal district court, alleging both federal law and state law claims. On February 28, 2011, the district court granted the County’s motion for summary judgment with respect to the plaintiff’s federal law claims, and dismissed the plaintiff’s state law claims for lack of jurisdiction, without prejudice to the plaintiff to raise them in state court.

The plaintiff thereafter attempted to raise her state law claims in state court by filing a complaint in the Wayne County Court of Common Pleas, which was filed on March 16, 2011. This complaint alleges both a Whistleblower law claim, as well as a state onstitutional claim (under Art. I, Sec. 7 of the Pennsylvania Constitution), against the County.

In analyzing the County’s statute of limitations defense, the Court first identified the relevant statute of limitations for each of the plaintiff’s claims: 180 days for the plaintiff’s Whistleblower law claim, and two years for the plaintiff’s state constitutional claim. Because the plaintiff did not file her complaint in Wayne County until more than two years after she was terminated from her employment, the statute of limitations had clearly run on each claim, presuming that the Court used the date of the filing of the plaintiff’s Wayne County complaint as the operative filing date. The plaintiff argued against this, and urged the Court to instead use the date that she filed her federal complaint as the operative filing date.

The Court indicated that it would be required to use the date of the filing of the plaintiff’s federal complaint as the operative filing date if 42 Pa.C.S. § 5103 was found to apply to this case. 42 Pa.C.S. § 5103 provides that where a matter is erroneously filed in a court that does not have jurisdiction over the matter, that court must transfer the record to the appropriate court within the Commonwealth having jurisdiction, where the matter will be treated as if it were originally filed in the transferee court on the date it was first filed in the transferor court. Subsection (b) of this statute applies specifically to cases filed in federal court. The Court accordingly determined that the success of the plaintiff’s opposition to the County’s statute of limitations defense depended on whether the plaintiff had met the requirements under 42 Pa.C.S. § 5103(b) for transferring her case from federal court.

42 Pa.C.S. § 5103(b)(1) provides that whenever a matter is commenced in federal court and then dismissed for lack of jurisdiction, the plaintiff may transfer the matter to the court having jurisdiction. 42 Pa.C.S. § 5103(b)(2) provides that this transfer may be effected by the filing of a certified transcript of the final judgment of the federal court and the related pleadings in the court having jurisdiction.

The Court’s analysis of both this statute as well as the Superior Court case of Williams v. F.L. Smithe Mach. Co., Inc., 395 Pa.Super. 511, 577 A.2d 907 (Pa.Super. 1990) makes it clear that the burden is on the plaintiff to ensure that the case is properly transferred from federal court to state court by the filing of the certified transcript of final judgment and the related pleadings. Because the plaintiff in this case presumably did not filed the certified transcript of the federal court’s final judgment and/or the pleadings in her federal court, and instead simply filed a new Complaint, the Court concluded that the plaintiff failed to perfect the transfer of her case from federal to state court, and therefore failed to preserve her federal court filing date to toll the statutes of limitations. The Court accordingly granted the County’s motion for judgment on the pleadings and dismissed the plaintiff’s case.

The Bar also recognizes the contributions made by and years of service of the outgoing District Attorney, Mike Lehutsky. Mike recently announced the opening of his new office at 613 Main Street in Honesdale. The Bar wishes Mike much success with his return to private practice.

Nos. 10 – 1973 – Criminal and 10A – 1973 – Criminal

Decided by: Raymond L. Hamill, P.J.

Summary of the Case

This thirty-eight-year-old case came before the Court most recently as a result of a pro se petition filed by the defendant, Glen Rolison, under the Post Conviction Relief Act (PCRA) in January of 2010.

In September of 1974, the defendant in this case was convicted of first-degree murder and sentenced to life in prison.  His conviction and sentence were affirmed on direct appeal, and the federal courts denied his petitions for a writ of habeas corpus.  He filed his first PCRA petition with this Court in 1989.  He filed various amended PCRA petitions thereafter, most recently in January of 2010.  When the Court did not address this most recent PCRA petition (likely because the Court had issued a notice of its intention to dismiss the defendant’s prior PCRA petition, filed in July of 2009, but did not issue a final order actually dismissing this PCRA petition), the defendant filed a mandamus action in the Supreme Court of Pennsylvania, which remanded the matter back to this Court for disposition within 120 days.

The Court disposed of the defendant’s PCRA petition based upon jurisdictional grounds.  The Court began by noting in order for a court to have jurisdiction over a PCRA petition, the petition must have been timely filed.  To determine whether the defendant’s petition was timely filed, the Court turned to the relevant statutory provision, found at 42 Pa.C.S.A. § 9545.  The general rule stated under (b)(1) of this section requires all PCRA petitions to be filed within one year of the date that the judgment in question becomes final.  There are three exceptions to this general rule: (1) when the failure to raise the claim was based upon governmental interference, (2) when the facts upon which the claim is based were unknown to the petitioner and could not have been ascertained by the exercise of due diligence, and (3) where the right asserted is a constitutional right, recognized by the Pennsylvania or United States Supreme Courts, that was only recognized more than one year after the judgment became final, and the Court recognizing the right held that the right applies retroactively.

The defendant relied upon (2) in his attempts to have the court grant him PCRA relief.  In support of his petition on this ground, the defendant attached two signed statements, which he claims are after-discovered evidence: (1) a statement by purported eyewitness Darnell Williams, and (2) a statement by the defendant’s own son, Blaise Rolison.

The Court found the defendant’s allegations regarding these signed statement inadequate as a matter of law to support his PCRA petition filed some twenty years after judgment became final.  The Court bases its conclusion on two reasons.  First, the Court observed that the defendant makes no attempt to explain why he could not have learned the facts contained in the statements submitted to him earlier, and cited to a 2010 Superior Court case explaining the difference between after-available evidence and after-discovered evidence, suggesting that the defendant’s statements fell into the former category.  Second, the Court noted that the signed statements consisted of nothing more than Mr. Williams and Mr. Rolison stating that they “knew” that the defendant was innocent – but without saying how.  The Court categorized these statements as purely opinion testimony.

The Court accordingly issued an order giving the defendant notice that it intends to dismiss his PCRA petition within 30 days.

Joseph Franceski a/k/a Joseph Franceski, Jr.
Debra Franceski and Michael Franceski
Plaintiffs
v.
NewPenn Exploration, LLC and Southwestern Energy Production Company
Defendants
Docket No. 923-2008-CV

CONSOLIDATED WITH

Joseph P. Franceski
Plaintiff
v.
NewPenn Exploration, LLC and Southwestern Energy Production Company
Defendants
Docket No. 924-2008-CV

CONSOLIDATED WITH

 Joseph P. Franceski and Michael Franceski
Plaintiffs
v.
NewPenn Exploration, LLC and Southwestern Energy Production Company
Defendants
Docket No. 925-2008-CVAttorney for Plaintiffs: Kristen K. Oxley, Esq.

 Attorneys for Defendants:
Joseph T. Kelleher, Esq., David R. Fine, Esq., George A. Bibikos, Esq.

 Decided by: Raymond L. Hamill, P.J.

Summary of the Case

This case came before the Court on Preliminary Objections filed by Defendants in the nature of a demurrer to all four counts set forth in Plaintiffs= Second Consolidated Amended Complaint.  Plaintiffs= Complaint consisted of Count I – Breach of Contract for failure to comply with the oral agreement, Count II – Fraud (in the inducement), Count III – Negligent Misrepresentation and Count IV – Breach of Implied Covenant of Good Faith and Fair Dealing.

Plaintiffs are the owners of several parcels of real property located in Clinton Township to which they leased the natural gas rights to Defendants for $100.00 an acre. Plaintiffs alleged that Defendants orally agreed to pay additional monies to them should the price per acre offers increase.  Plaintiffs further alleged that Defendants enticed them to sign the leases by making statements that there was only a limited time to sign the lease, that the $100 price was a maximum threshold and that the oral agreement for additional payments could not be included in the written lease.

Defendants= Preliminary Objections to Plaintiffs= Counts I, II, and III were all sustained by the court based on the parol evidence rule which states that prior representations concerning matters covered in the written contract cannot be considered unless fraudulently omitted from the contract. First United Bank and Trust v. PNC Financial Services Group, Inc., 667 F.Supp.2d 443 (M.D.Pa. 2009).  The court noted that the written leases were all integrated and all required Defendants to pay $100 an acre to Plaintiffs as a bonus consideration. Inasmuch as any oral agreement to pay any additional amounts as bonus payments would then necessarily contradict the terms of the written agreement, application of the parol evidence rule barred consideration of such oral agreements.

Defendants= Preliminary Objection to Count IV was also sustained for failure to state a cause of action for breach of an implied covenant of good faith and fair dealing. The court ruled that Pennsylvania does not recognize such an independent cause of action and instead considers it a part of an action for breach of contract as set forth in the case of L.S.I. Title Agency, Inc. v. Evaluation Services, Inc., 951 A.2d 384 (Pa.Super. 2008).  Inasmuch as the court was constrained to consider the breach of implied covenant of good faith as part of a cause of action for breach of contract, the Preliminary Objection was sustained.

Shannon Lyn Nelson
Plaintiff
v.
James Lew Nelson
Defendant
Docket No. 610-2008-DR

 Decided by: Raymond L. Hamill, P.J.

 Summary of the Case

This is an on-going custody case and one of the issues for Defendant was Plaintiff=s new relationship with another man. Defendant=s counsel issued a subpoena to AMedical Records WMH@ to attend and testify pursuant to Pa.R.C.P. 234.1, but prior to the date of hearing counsel received copies of the man=s medical records.  The medical records were released to Defendant who then disseminated them to various other agencies.  Plaintiff then filed a Motion for Injunctive Relief to Preclude Defendant from Disseminating Private Information and to Preclude said Private Information from Admission into Evidence.The Court issued an Order granting the injunctive relief requested, requiring Defendant to destroy all copies of the man=s medical records, precluding Defendant from disseminating any information obtained from the records, and disallowing the introduction of the records into evidence at the time of the custody hearing.  The Court based its ruling on the case of T.M. v. Elwyn, Inc., 950 A.2d 1050 (Pa.Super. 2008), which case discussed the privacy  regulations included in the HIPAA statute.  In Elwyn, the Superior Court determined that the HIPAA privacy protections do not translate into an evidentiary privilege in court cases, citing to Northwestern Mem. Hosp. v. Ashcroft, 362 F.3d 923, 925 (7th Cir.2004).

However, the Superior Court went further and discussed the provisions contained in 45 C.F.R. ” 164.500-164.534 that a court can utilize to ensure that its discovery orders contain appropriate safeguards for purposes of HIPAA compliance.  In relevant part, 45 C.F.R. ‘ 164.512 provides:(1) Permitted disclosures.  A covered entity may disclose protected health information in the course of any judicial or administrative proceeding

(i) In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of court or administrative tribunal, if:

(A) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iii) of this section, from the party seeking the information that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request; or

(B) The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section….

(v) For purposes of paragraph (e)(1) of this section, a qualified protective order means, with respect to protected health information requested under paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that:

(A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and

(B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding.