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January 4, 2010
JOON PARK, AN INDIVIDUAL, PLAINTIFF,v.CAS ENTERPRISES, INC., AN IOWA CORPORATION, D/B/A KREG TOOL COMPANY, DEFENDANTS.CAS ENTERPRISES, INC., AN IOWA CORPORATION, D/B/A KREG TOOL COMPANY, COUNTERCLAIMANT,v.JOON PARK, AN INDIVIDUAL, COUNTERDEFENDANT.
ORDER DENYING PLAINTIFF'S MOTION FOR SANCTIONS [Doc. No. 148]
Plaintiff Joon Park moves the court for evidentiary sanctions to exclude specific testimony and documents due to defendant Kreg Tool's alleged discovery violations regarding Kreg Tool's DB50 machine. Park also requests attorneys fees and costs for bringing this motion. Kreg Tool opposes, arguing that the evidentiary sanctions are not warranted because it properly initially disclosed and properly amended its disclosures to reflect the recently produced information. The court has considered all arguments in support of and in opposition to this motion, and for the following reasons, DENIES the motion for sanctions.
Scheduling Order
The parties held a Rule 26(f) conference and filed a report of their meeting on August 15, 2008. In that report the parties confirmed that they would exchange initial disclosures on August 11, 2008. The court held an Early Neutral Evaluation and issued a scheduling order on August 19, 2008. In that order the court set the fact discovery deadline for August 7, 2009 and the expert discovery deadline for October 30, 2009.*fn1
On November 16, 2009 the court issued an order extending the remaining pretrial dates. Under the amended schedule, the last date to file dispositive motions is March 19, 2010. The pretrial conference is set for May 21, 2010 and the first day of trial is set for June 21, 2010.
Discovery on the Foreman DB50 Machine
Kreg Tool claims that it offered the Foreman DB50 machine for sale in 2002 and 2003. Whether the DB50 existed and in what form it existed is relevant to whether it constitutes relevant prior art to the patent at issue, Park's '373 patent. Kreg Tool asserts that it previously produced and disclosed evidence of the DB50 to Park. In its final invalidity contentions, Kreg Tool identified these documents regarding the DB50: press release, manual, sales sheet, catalogs and invoice, picture, DB50 video, and invoices. Farrel Decl. Ex F. In other discovery, Kreg Tool produced financial records for the DB50 that date back to the July-September 2002 quarter.
In his business plan of January 2005, Park includes a picture and description of the DB50. Farrell Decl. Ex. E, pp.5-6. At his deposition Park testified that he knew about the DB50:
Q: [P]age 6 of your business plan, is that a picture of a Foreman - a Kreg Tool Foreman DB50?
A: Yes.
Q: Where did you obtain that picture?
A: From Internet.
Q: From the Kreg Tool website?
A: Yes. ***
Q: So you knew about the DB50 back in - in late 2004/January 2005, correct?
Q: And you downloaded that picture from the website and put it in your business plan?
A: Yes, I did.
Q: Okay. What else did you learn about the DB50 from reviewing the Kreg Tool website?
A: Nothing much, except the - the functionality of this one is a jig - compared the jig is more likely a semi-automatic machine, yes.
Q: So you gained in - so you learned information about how the DB50 operates from viewing the Kreg Tool website?
A: Briefly when I see the picture, yes, I can imagine what is the functionality of the machine.
Farrell Decl. Ex. G.
On January 28, 2009, Park's counsel, Paul Adams, wrote a letter to Frank Farrell, Kreg Tool's counsel, acknowledging that the DB50 machines may be prior art depending on the details of the construction and operation of the machines. Newman Decl. Ex. 1. In that letter Mr. Adams offers to dismiss the infringement count based on the '373 patent if Mr. Farrell provides documentary evidence that the DB50 machine was sold in 2002 and has the features described in the "manual." Id. According to Adams, the evidence that had been produced up until that date did not convince him that the DB50 constituted prior art.
Kreg Tool showed a video of the DB50 in open court at the Markman hearing in April 2009. In that video at approximately time markers 0:12, 0:40, 1:28, and 1:40, Todd Sommerfeld, Kreg Tool's President, refers to the machine in the video as the Foreman DB50 pocket hole drilling machine. In July 2009, Park's counsel, Paul Adams, reviewed the DB50 video on his own. While Adams acknowledged in a letter to Kreg Tool's counsel, Frank Farrell, that the video explained the features of the DB50 machine, he argued that it did not necessarily show that the DB50 was prior art because it did not explain the feature that would determine whether the DB50 anticipates or renders obvious the subject matter of claim 14 in the '373 patent. Farrell Decl. Ex. H. Summary Judgment Motions.
On September 25, 2009, Kreg Tool filed a motion for summary judgment for non-infringement of the '373 patent. [Doc. No. 102.] Park filed a cross motion for partial summary judgment of non-invalidity and infringement on the '373 patent on October 14, 2009. [Doc. No. 110.] In that motion, he argues that Kreg Tool's proffered testimony and documentary evidence that the DB50 is prior art fails to raise a genuine issue of material fact that it is, in fact, prior art. Park says that only two witnesses have testified about the DB50: Brad Witt, Kreg Tool's technical expert in this case, and Todd Sommerfeld, the President of Kreg Tool. Park points out that at Witt's deposition, Witt admitted that he had never owned, seen or used a DB50 machine. Park explains that Sommerfeld, who discussed the DB50 in a video that aired at the Markman hearing, displayed only the DB55 machine in the video and never actually showed the DB50 machine. As for the documentary evidence produced regarding the DB50--sales receipts, operating manual, press release and advertisements--Park argues that none of them demonstrate the DB50 to be prior art. Ultimately, Park argues that there is no evidence the DB50 ever existed, and ultimately compares it to a "video of Sasquatch or the Loch Ness Monster, [where] actual proof of the DB50 is apparently impossible to capture on film." Park's MSJ, p.10.
On November 6, 2009, Kreg Tool filed its opposition to Park's cross summary judgment motion. [Doc. No. 136.] To refute Park's claim of the "imaginary" DB50, Kreg Tool included the following additional evidence of the existence of the DB50:
! Declaration by Brad Lilienthal, Kreg Tool's Vice President of Sales and Marketing. The declaration states he prepared press releases for the DB50 in 2002 and that Kreg Tool designed and manufactured it by August 1, 2002. He attaches a copy of an invoice and inventory record for a particular DB50 and a picture of a particular DB50 machine. Farrell Decl. Ex. B.
! Declaration by Mike Peachy, a Kreg Tool customer. Mr. Peachy states he bought a DB50 machine to use for his business in August 2002 and attaches a picture of the DB50 machine that he owns. Farrell Decl. Ex. C.
! Declaration by Charles Miller, a Kreg Tool customer. Mr. Miller states he bought a DB50 in July 2003 and attaches a picture of the DB50 machine that he owns. Farrell Decl. Ex. D.
! Kreg Tool attached copies of the sales orders for the products Mr. Peachy and Mr. Miller bought to its exhibits supporting its opposition to Park's cross summary judgment motion. See Doc. No. 136-11.
On December 29, 2009, District Judge Sabraw granted Kreg Tool's summary judgment motion for non-infringement of the '373 patent. He denied Park's cross summary judgment motion and motion to strike the supplemental evidence as moot.
Park's Motion for Sanctions and Kreg Tool's Amended Disclosures
Park filed this motion for sanctions on November 13, 2009.*fn2 He argues that because Kreg Tool did not supplement its disclosures during the open discovery period, the court should not consider the supplemental evidence in either dispositive motions or at trial. On November 16, 2009, Kreg Tool amended its Rule 26(e) disclosures to include the newly-proffered evidence. In that notice Kreg Tool said the amendment was necessary given Park's new contention in his summary judgment papers that were filed after the close of discovery. Kreg Tool also noted that in its Rule 26 initial disclosures it had disclosed Brad Lilienthal as a witness who could testify as to "Kreg Tool's design, manufacture and sale of Kreg Tool's products, as well as prior art to the asserted patents." Notice, Farrell Decl. Ex. A.
Park's motion for sanctions is based on Kreg Tool's discovery conduct. Even though Judge Sabraw has now denied Park's summary judgment motion and corresponding motion to strike the supplemental evidence as moot, those denials do not necessarily moot the issue in this motion, which is whether Kreg Tool engaged in discovery misconduct. Therefore, this court must still determine whether Kreg Tool violated any discovery rules.
Duty to Supplement Disclosures
Federal Rule of Civil Procedure 26(a) requires the parties to make initial disclosures that include an identification of witnesses and categories of documents that each side will rely on in the case. Rule 26(e) requires the parties to supplement their Rule 26(a) disclosures and their discovery responses if "the party learns that in some material respect the disclosure or response is incomplete or incorrect." Fed. R. Civ. Proc. 26(e)(1)(A).
Parties who run afoul of Rule 26 may face sanctions as specified in Rule 37:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.
Fed. R. Civ. Proc. 37(c)(1). The exclusion sanction is "self-executing" and "automatic." Yeti by Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (referencing the Advisory Committee's Notes to Rule 37(c)(1) (1993 Amendments)). However, "[t]wo express exceptions ameliorate the harshness of Rule 37(c)(1): The information may be introduced if the party can prove that its failure to disclose the required information is substantially justified or harmless." Id. at 1106-07 ("Implicit in Rule 37(c)(1) is that the burden is on the party facing sanctions to prove harmlessness"). The Ninth Circuit "give[s] particularly wide latitude to the district court's discretion to issue sanctions under Rule 37(c)(1)." Id. The following factors are used to guide the court's discretion:
1) the public's interest in expeditious resolution of litigation;
2) the court's need to manage its docket;
3) the risk of prejudice to the defendants;
4) the public policy favoring disposition of cases on their merits; and
5) the availability of less drastic sanctions.
Wendt v. Host Int'l, Inc., 125 F.3d 806, 814 (9th Cir. 1997).
In patent cases, disclosure and supplementation of prior art references are also governed by 35 U.S.C. § 282:
In actions involving the validity or infringement of a patent the party asserting invalidity or noninfringement shall give notice in the pleadings or otherwise in writing to the adverse party at least thirty days before the trial, of the country, number, date, and name of the patentee of any patent, the title, date, and page numbers of any publication to be relied upon as anticipation of the patent in suit.
35 U.S.C. § 282. The Federal Rules of Civil Procedure and § 282 co-exist. ATD Corp. v. Lydall, Inc., 159 F.3d 534, 551 (Fed. Cir. 1998). But when the court has set a scheduling order to govern discovery and pretrial procedures, the scheduling order governs that case. Id. While section 282 "sets a minimum period for the identification of prior art to be introduced as evidence of anticipation, a specific judicial directive for the timing of discovery establishes the procedures to which the parties are bound." Id. Though § 282 and the scheduling may differ as to timing, they share a common goal: "The purpose of both the Federal Rules and § 282 is to prevent unfair and prejudicial surprise." Abbott Labs. v. Syntron Bioresearch, Inc., 2001 U.S. Dist. LEXIS 26339, *6 (S.D. Cal. 2001).
Kreg Tool's Supplemental Disclosures
Park argues that Kreg Tool has not met its burden to prove that its supplemental disclosure was harmless or substantially justified. He says Kreg Tool fails to explain how it earlier searched for the DB50 machines without success but then found four DB50 machines in its inventory after the close of discovery. See Lilienthal Decl. Further, Park argues that Kreg Tool does not explain how it searched its sales records during discovery yet did not locate the two newly-disclosed customers until opposing the cross summary judgment motion. See Peachy and Miller Decls. Kreg Tool counters that the timing of producing the supplemental disclosures is harmless and is substantially justified because Kreg Tool produced them in response to Park's accusations that the DB50 machine never existed.
Kreg Tool was substantially justified in supplementing its previously-disclosed prior art machine evidence of the DB50 in response to Park's accusations that the DB50 machine never existed. Park knew that Kreg Tool asserted the DB50 was prior art, and Kreg Tool did not intentionally conceal it as a prior art reference. Kreg Tool disclosed the DB50 as prior art in the preliminary invalidity contentions and again in the final invalidity contentions. Park, therefore, has been on notice of Kreg Tool's position regarding the DB50 since disclosures and documents were first exchanged in this lawsuit. Further, Kreg Tool produced during the discovery period a significant amount of evidence regarding the DB50. The fact that Kreg Tool relies on this previously-produced evidence--and not on the supplemental evidence--in support of its own summary judgment motion regarding validity of the '373 patent, shows that it believes the evidence produced during discovery is sufficient to demonstrate invalidity. The supplemental evidence, therefore, was produced to counter Park's claim that, in light of all the evidence Kreg Tool produced, the DB50 never existed.
Further, Kreg Tool's production of the supplemental evidence is not so harmful as to warrant exclusion from trial. Park already had extensive knowledge of the existence and operation of the DB50. He included a picture of it in his business plan and testified that he knew about the DB50 and about how it worked. Kreg Tool showed a video demonstrating the DB50 at the Markman hearing. Further, Kreg Tool listed Mr. Lilienthal as a witness in its initial Rule 26 disclosures. Finally, with Judge Sabraw recently granting Kreg Tool's motion for summary judgment for non-infringement without reliance on the supplemental discovery, the late production of that discovery was harmless.
The court, therefore, denies Park's motion for sanctions regarding the supplemental evidence Kreg Tool produced in its opposition to Park's summary judgment motion for non-invalidity and infringement on the '373 patent. The court finds that Kreg Tool was substantially justified to provide the supplemental disclosure when it did. Further, its production of that discovery was harmless to Park. Therefore, Kreg Tool did not engage in any discovery misconduct.
Attorney's Fees
Because the court finds that Kreg Tool's supplemental disclosure did not amount to a discovery violation, the court denies Park's request for attorney's fees.
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United States District Court, Eastern District of Pennsylvania
March 21, 2014
JOHN OLMEDO SERRANO, Petitioner,v.SECRETARY WETZEL, et al. Respondents.
Now pending before this court is a petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by a petitioner currently incarcerated in the State Correctional Institution Forest, in Marienville, Pennsylvania. For the reasons which follow, it is recommended that the petition be DISMISSED.
On April 21, 2008, petitioner, represented by Attorney Andres Jalon, entered guilty pleas to two counts of attempted murder and one count of criminal conspiracy in the Court of Common Pleas of Philadelphia. (CP-51-CR-0008368-2007). On September 30, 2008, the Honorable Gwendolyn N. Bright sentenced petitioner to serve concurrent terms of not less than twelve and one-half (12 ½ ) years nor more than twenty-five (25) years imprisonment. These charges stemmed out of an incident in May 2007 in which petitioner was the driver of the vehicle from which petitioner's co-conspirators fired weapons at two individuals.
Petitioner did not file a direct appeal. On June 23, 2009, petitioner filed a timely pro se collateral petition under the Post-Conviction Relief Act (PCRA), 42 Pa. C.S. § 9541, et seq. Counsel was appointed. On November 9, 2009, petitioner filed a pro se amended PCRA petition. On February 11, 2011, petitioner's court appointed counsel submitted a no-merit letter pursuant to Commonwealth v. Finely, 379 Pa. Super. 390, 550 A.2d 213 (1988) (en banc)[1], with a petition to withdraw. The PCRA court issued notice of its intent to dismiss the petition pursuant to Pa. R. Crim. P. 907, and petitioner filed a response to the PCRA dismissal notice. On September 15, 2011, the court dismissed the PCRA petition without a hearing.
On October 17, 2011, petitioner appealed the PCRA court's decision to the Superior Court (Case No. 2836 EDA 2011). On January 23, 2013, the Superior Court affirmed the PCRA court's denial of the petition.
On June 24, 2013, petitioner filed the instant timely petition for Writ of Habeas Corpus claiming:
(1) Ineffective assistance of trial counsel for advising petitioner as to an inaccurate sentence he would receive if petitioner plead guilty; and
(2) Ineffective assistance of trial counsel for failing to file a motion for reconsideration of sentence.
Respondents argue that petitioner's first claim is without merit. Additionally, respondents argue that petitioner's second claim is procedurally defaulted. We agree.
Petitioner's first claim is subject to the following standard of review.
Under the current version of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), an application for Writ of Habeas Corpus from a state court judgment bears a significant burden. Section 104 of the AEDPA imparts a presumption of correctness to the state court's determination of factual issues - a presumption that petitioner can only rebut by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1) (1994). The statute also grants significant deference to legal conclusions announced by the state court as follows:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
The United States Supreme Court, in Williams v. Taylor, 529 U.S. 362, 404-05, 120 S. Ct. 1495 (2000), interpreted the standards established by the AEDPA regarding the deference to be accorded state court legal decisions, and more clearly defined the two-part analysis set forth in the statute. Under the first part of the review, the federal habeas court must determine whether the state court decision was "contrary to" the "clearly established federal law, as determined by the Supreme Court of the United States." As defined by Justice O'Connor, writing for the majority of the Court on this issue, a state court decision can be contrary to Supreme Court precedent in two ways: (1) "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or (2) "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to that reached by [the Supreme Court]." Id. Justice O'Connor explained, decisions "applying the correct legal rule from Supreme Court cases to the facts of the prisoner's case." Id. at 406.
To reach such "run-of-the-mill" cases, the Court turned to an interpretation of the "unreasonable application" clause of
§ 2254(d)(1). It found that a state court decision can involve an unreasonable application of Supreme Court precedent: (1) "if the state court identifies the correct governing legal rule from the Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407-08. The Court specified, however, that under this clause, "a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410.
Petitioner's first claim is that trial counsel was ineffective for advising petitioner as to an inaccurate sentence petitioner would receive if he pled guilty, because counsel allegedly told petitioner that petitioner would receive a sentence of seven and one-half (7 ½ ) to fifteen (15) years' imprisonment, rather than the twelve and one-half (12 ½ ) to twenty-five (25) years he received. Petitioner claims he would not have entered a guilty plea if he had been told he could receive the sentence that he received.
When reviewing claims of ineffective assistance of counsel, this court must view the totality of the evidence before the trial court and determine whether the petitioner has shown that the decision reached is reasonably likely to have been different, absent the alleged ineffectiveness of counsel. Strickland v. Washington, 466 U.S. 668, 695, 104 S. Ct. 2052, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562 (1984). The Sixth Amendment to the United States Constitution recognizes the right of every criminal defendant to effective assistance of counsel. U.S. Const., Amend. VI. The Supreme Court has set forth a two-prong test - both parts of which must be satisfied - by which claims alleging counsel's ineffectiveness are adjudged. Id. at 668. First, the petitioner must demonstrate that his trial counsel's performance fell below an "objective standard of reasonableness." Id. The Supreme Court has explained that:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstance of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 76 S. Ct. 158, 163-64 (1955)).
A convicted defendant asserting ineffective assistance must therefore identify the acts or omissions that are alleged not to have been the result of reasoned professional judgment. Id. at 690. Then the reviewing court must determine whether, in light of all the circumstances, the identified acts or omissions were outside "the wide range of professionally competent assistance." Id. Under Pennsylvania law, counsel is not ineffective for failing to raise baseless or frivolous issues. Commonwealth v. Wilson, 393 A.2d 1141, 1143 (Pa. 1978).
Second, the petitioner must demonstrate that his counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To establish prejudice, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Id. at 694. A reviewing court need not determine whether counsel's performance was deficient before considering whether the petitioner suffered any prejudice as a result of the alleged deficiency. If it is easier to dispose of an ineffectiveness claim for lack of the requisite prejudice, that course should be followed. Id. at 697.
Where, as here, the challenged conviction resulted from a guilty plea, prejudice is established only by showing "a reasonable probability that, but for counsel's errors, [petitioner] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Pennsylvania applies the same test for ineffective assistance of counsel as the federal courts. See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir.2000); Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067, 1075–76 (Pa.2006).
The PCRA court reviewed this claim, and found it lacked merit. The Superior Court affirmed that finding. The Superior Court explained that, prior to accepting petitioner's guilty plea, the trial court engaged petitioner in a lengthy oral colloquy, during which petitioner explained that he understood his rights and that his plea was voluntary. See Pa.Sup. Ct. Op. 1/23/13, at 5, citing N.T., 4/21/08, at 9-12. The Superior Court further explained that plaintiff "confirmed that he understood that he was entering 'open plea,' which meant that there was no agreed upon recommendation for sentencing." Id., citing N.T. 4/21/08, at 5-6. Additionally, petitioner entered a written plea colloquy, "through which [petitioner] acknowledged that he was entering an open plea and that, as a result of the charges to which he was pleading guilty, he could be sentenced to up to 80 years in prison." Id. Thus the Superior Court found that while counsel may have suggested what counsel thought petitioner's sentence may have been, the record showed that petitioner entered his plea with no assurances of a set sentence. The Superior Court found the claim meritless and that petitioner had not proven counsel was ineffective.
Petitioner attaches to his brief in support of his habeas petition, affidavits from family members, that state that trial counsel also told them that petitioner's sentence would be seven and one-half (7 ½ ) to fifteen (15) years' imprisonment. However, the Superior Court found that even if counsel had told petitioner what counsel thought petitioner's sentence may be, petitioner's written and oral colloquies made it clear that there was no agreed upon sentence and petitioner could be sentenced to up to eighty years in prison.
Petitioner has failed to prove that the Superior Court's adjudication of petitioner's claim did not "result in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d)(1); see also Williams, 529 U.S. at 404-05. Petitioner does not demonstrate that the state court's adjudication of his claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254(d)(2). Accordingly, the instant claim should be denied and dismissed.
Petitioner's second claim is procedurally defaulted.
A state prisoner must exhaust his remedies in state court in order for a federal court to review the claim and grant relief. O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999). A petitioner is not deemed to have exhausted the remedies available to him if he has a right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c) (1994); Castille v. Peoples, 489 U.S. 346, 350, 109 S. Ct. 1056, 1059, reh'g denied, 490 U.S. 1076, 109 S. Ct. 2091 (1989). In other words, a petitioner must invoke "one complete round of the state's established appellate review process" in order to exhaust his remedies. O'Sullivan, 526 U.S. at 845. A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, and that the claims brought in federal court be the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 73-74 (3rd Cir. 1982), cert. denied, 459 U.S. 1115, 103 S. Ct. 750 (1983). In the case of an unexhausted petition, the federal courts should dismiss without prejudice, otherwise they risk depriving the state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3rd Cir. 1993).
However, "[i]f [a] petitioner failed to exhaust state remedies and the court to which petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred... there is procedural default for the purpose of federal habeas..." Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S. Ct. 2546, reh'g denied, 501 U.S. 1277, 112 S. Ct. 27 (1991).
Further, procedural default occurs when an issue is asserted in the state courts but the state courts do not address the issue on the merits because of an independent and adequate state procedural rule. Coleman, 501 U.S. at 729. "In the context of direct review of a state court judgment, [this] doctrine is jurisdictional... [b]ecause this Court has no power to review a state law determination that is sufficient to support the judgment." Id. "In the absence of [the procedural default doctrine] in federal habeas, habeas petitioners would be able to avoid the exhaustion doctrine by defaulting their federal claims in state court." Id., at 732. An issue is waived if a petitioner fails to raise it and the issue could have been raised before trial, at trial, on appeal, in a habeas corpus proceeding, or in a prior proceeding. 42 Pa. Cons.Stat. Ann. § 9544(b); see also Sistrunk v. Vaughn, 96 F.3d 666, 671 n. 4 (3d Cir.1996) ("[T]he [Pennsylvania Rules of Appellate Procedure] dictate that an issue raised at the trial level but not preserved on appeal will not be considered by any subsequent appellate court."); Commonwealth v. D'Collanfield, 805 A.2d 1244, 1246 (Pa.Super.Ct.2002) (holding an issue not preserved on appeal was waived).
In the event a petitioner brings a claim which is procedurally defaulted, he is not entitled to federal habeas review unless he can show that his default should be excused. Such excuse is allowed only where the petitioner can show "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims would result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; Wenger v. Frank, 266 F.3d 223, 224 (3d Cir. 2001). To satisfy the cause and prejudice test, petitioner must show that "some objective factor external to the defense impeded efforts to comply with the State's procedural rule." Slutzker v. Johnson, 393 F.3d 373, 381 (3d Cir. 2004).
Petitioner's second claim is that trial counsel was ineffective for failing to file a motion for reconsideration of sentence. As noted above, respondents contend that petitioner's claim was never properly exhausted in state court and petitioner can no longer bring this claim in state court, hence it is procedurally defaulted.
Our review demonstrates that procedural default is established here.
Petitioner failed to exhaust his claim. Petitioner raised the instant claim in his pro se PCRA petition but then abandoned the claim in the amended PCRA petition. Petitioner then raised the instant claim on appeal to the Superior Court of the PCRA court's denial of petitioner's PCRA petition. The Superior Court refused to review the claim. The Superior Court found that petitioner's claim was waived because it was not raised before the PCRA court or in response to the PCRA court's notice of intent to dismiss. See Commonwealth v. Washington, 927 A.2d 586, 601 (Pa. 2007) (reiterating that claims not raised in the PCRA petition are waived and not cognizable on appeal).
Petitioner argues that the issue was raised in his pro se PCRA and the Superior Court should not have found it waived. While the court notes that petitioner did originally raise the claim in his pro se PCRA petition, petitioner abandoned the claim in the pro se amended PCRA petition; thus, the claim was not reviewed by the PCRA court.
The Superior Court rested its decision not to review petitioner's claim purely on state law, with no reference to federal law or the federal constitution. Therefore, this court must further conclude that the Superior Court's determination that petitioner failed to meet the state requirements for review of his claim constitutes an independent state procedural ground. It is not within "the province of a federal habeas court to reexamine state-court determinations on state-law questions," Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991), such as what sort of claims are properly presented in state collateral proceedings. Since, the state court never reviewed this claim on a federal ground that could then be subject to habeas review the claim is considered procedurally defaulted and barred from federal habeas review.
Petitioner has not asserted cause and prejudice, nor has he shown that the court's failure to consider this claim would result in a fundamental miscarriage of justice. Thus, we must dismiss the habeas petition in its entirety.
Therefore, I make the following:
AND NOW, this 21st day of March, 2014, IT IS RESPECTFULLY RECOMMENDED that the petition for Writ of Habeas Corpus be DISMISSED. It is also RECOMMENDED that a certificate of appealability not be granted.
The petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.
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Kevin Hart is sitting on top of the world right now. His concert flick, Kevin Hart: What Now? debuts in movie theaters today (Oct. 14). To help celebrate the release, the $87 million dollar man also drop a new mixtape featuring his rap alias Chocolate Droppa.
The ridiculously long title project, Kevin Hart: What Now? (The Mixtape Presents Chocolate Droppa) (Original Motion Picture Soundtrack), features 17 songs with Chocolate Droppa sprinkling a few comedic verses on them. Rappers Akon, Kent Jones, Lil Yachty, 2 Chainz, Big Sean, PnB Rock, Wale, Clinton Sparks and others make cameos as well as R&B singers BJ the Chicago Kid, Trey Songz and Chris Brown.
Highlights on the collection include the celebratory "Light It Up" with Dueces and Sean Don spitting braggadocios rhymes. On "Stretch Marks," Kent Jones raps about loving big women with scars and cellulite. On the smooth "All Falls Down," rapper Tink spits seductive bars to a potential lover.
Another huge standout is "Sunday Morning," a beautiful pop ballad featuring Nick Jonas. The melodic "Scream," featuring Chris Brown, is a slight reworking of New Edition's "Can't You Stand the Rain." And on "What Now," Wale raps about his early struggles of trying to get put on in the rap game with BJ the Chicago Kid singing spiritual affirmations.
At the end of the mixtape, Chocolate Droppa issues a warning to the big-time rappers that's coming through to take over the rap game. He then thanks all the fans for their love and support.
Overall, Kevin Hart: What Now? mixtape is a phenomenal project and a strong candidate for Best Mixtape/Soundtrack of the Year.


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Augustus Prew portrayed Todd Haynes in Kick-Ass 2.
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This past week after the Nuggets were granted no mercy by the "Basketball Gods" and failed to move up in the NBA Draft Lottery (as George Karl might deduce), I joined a distinguished panel of Nuggets writers — including fellow Roundball Mining Company contributor, Jordan White — to weigh in on the upcoming draft for The Denver Post. With the 2014 NBA Draft exactly one month from Memorial Day, RMC's coverage of "All Things Draft Related" will soon kick into high gear. Though more detailed player analysis will follow, this article should serve as a comprehensive beginner's guide for those wishing to get acclimated with all the Nuggets' options come June 26. As always, feel free to leave your comments, thoughts and suggestions below.
Kalen Deremo
Latest posts by Kalen Deremo (see all)
- Last Dig: A farewell to RMC - April 18, 2015
- Report: Nuggets sign Jamaal Franklin - April 12, 2015
- Rapid Reaction: Denver Nuggets 119, Los Angeles Lakers 101 - April 8, 2015


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3.56 out of 10 (what is this?)
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26-year-old John Krause lives in Houston, TX. He loves music by Cake, Nickelback, Blink-182, Green Day, Fullmetal Alchemist, Breaking Benjamin, The Offspring and System Of A Down. Futurama, American Dad, The Boondocks and Aqua Teen Hunger Force are some of his favorite TV shows. Among his favorite movies are Equilibrium, Family Guy, Final Fantasy, Liar Liar, Goldfinger, Almost Heroes, Bad Santa, Angels & Demons, Terminator Movies, District B13, The Whole Ten Yards, The Fast And The Furious and Kill Bill Movies. Online, John goes by the alias shadowofechelon.


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Event: Shilpa Shetty graced the launch of Inch Loss Wrap by Iosis Spa at Iosis, Mumbai.
Guest List: Shilpa Shetty, Manasi Scott, Suchitra Pillai, Pooja Ghai, Delnaz Paul, Suleiman Merchant
Venue: Iosis, Mumbai
Date: 08-Jul-2010
Bollywood actress Aishwarya Rai Bachchan was snapped at the unveiling of 49th World Congress Dance Resarch.
Bollywood celebs Amitabh Bachchan, Tiger Shroff, Swapnil Joshi, Sayaji Shinde, Richa Inamdar, Ganesh Acharya, Pooja Sawant, Manoj Joshi were seen at the mahurat of Marathi film BHIKARI.
Bollywood celebs Farhan Akhtar, Boney Kapoor, Sridevi among others were snapped at the airport.
Bollywood celebs Sunny Deol, Shreyas Talpade and Bobby Deol celebrated Ali Asgar's birthday at The Kapil Sharma Show.
Bollywood celebs Deepshika, Hrishita Bhatt, Subhash Ghai, Hard Kaur, Gurmeet Choudhary, Debina Bonnerjee, Jyoti Saxena among others were seen at launch of lounge Drinking Kulture.


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POINT PLEASANT BEACH - Bars in Point Pleasant Beach will have to close at midnight starting in July under an ordinance approved by the borough council.
But a separate measure that would permit the bars to continue to stay open until 2 a.m. if they pay an extra fee aimed at funding additional police patrols was postponed last night.
Mayor Vincent Barrella told News 12 New Jersey, "We're not seeking to destroy the bars or tourism industry, just looking for well behaved visitors." Barrella also said he's open to further discussion adding, "We just have some disagreements on how to reach a happy medium."
The council approved the early closure in response to complaints from residents about bar patrons returning to their cars in the early morning hours with screaming, fighting and damaging property.
Some establishment owners in neighboring townships were surprised the ordinance passed and are concerned for the livelihoods of Point Pleasant Beach business owners.
"It will certainly affect their bottom line," said Chris Fahey, co-owner of Edgars Pub in Manasquan. "Not just for bars and restaurants, but smaller businesses that rely on the tourists."
The restrictions take effect July 1. Point Pleasant Beach may move up last call or charge bars Point Pleasant Beach Council passes 'last call' ordinance


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Playing: Loading...
On Air: 12:00 AM - 2:00 AM
Tags: Scoopla, Stars, Golden Globes, Golden Globe Awards, Winners
The 72nd annual Golden Globe Awards have wrapped up and the celebs are hitting the booze at their fancy after parties as we speak… but who actually won?
Between hosts Tina Fey and Amy Poehler ripping into everyone, George Clooney's tear-jerking tribute to wife Amal and an appearance by Prince, the winners almost went unnoticed… but CONGRATS to you all!
Best Motion Picture, DramaBoyhood — WINNERFoxcatcherThe Imitation GameSelmaThe Theory of Everything
Best Actor, DramaSteve Carell, FoxcatcherBenedict Cumberbatch, The Imitation GameJake Gyllenhaal, NightcrawlerDavid Oyelowo, SelmaEddie Redmayne, The Theory of Everything — WINNER
Best Actress, DramaJennifer Aniston, CakeFelicity Jones, The Theory of EverythingJulianne Moore, Still Alice — WINNERRosamund Pike, Gone GirlReese Witherspoon, Wild
Best Actress in a TV Movie or Mini-seriesMaggie Gyllenhaal, The Honorable Woman — WINNERJessica Lange, American Horror Story: Freak ShowFrances McDormand, Olive KitteridgeFrances O'Connor, The MissingAllison Tolman, Fargo
Best Motion Picture, Musical or ComedyBirdman Into the WoodsThe Grand Budapest Hotel — WINNERPrideSt. Vincent
Best Actor, Musical or ComedyRalph Fiennes, The Grand Budapest HotelMichael Keaton, Birdman — WINNERBill Murray, St. VincentJoaquin Phoenix, Inherent ViceChristoph Waltz, Big Eyes
Best Actress, TV DramaClaire Danes, HomelandViola Davis, How to Get Away With MurderJulianna Margulies, The Good WifeRuth Wilson, The Affair — WINNERRobin Wright, House of Cards
Best Supporting ActressPatricia Arquette, Boyhood — WINNERJessica Chastain, A Most Violent YearKeira Knightley, The Imitation GameEmma Stone, BirdmanMeryl Streep, Into the Woods
Best DirectorWes Anderson, The Grand Budapest HotelAva DuVernay, SelmaDavid Fincher, Gone GirlAlejandro G. Iñárritu, BirdmanRichard Linklater, Boyhood — WINNER
Best Actor, TV DramaClive Owen, The KnickLiev Schreiber, Ray DonovanKevin Spacey, House of Cards — WINNERJames Spader, The BlacklistDominic West, The Affair
Best TV DramaThe Affair — WINNERDownton AbbeyGame of ThronesThe Good WifeHouse of Cards
Best Actress, Musical or ComedyAmy Adams, Big Eyes — WINNEREmily Blunt, Into the WoodsHelen Mirren, The Hundred-Foot JourneyJulianne Moore, Maps to the StarsQuvenzhané Wallis, Annie
Best Foreign Language FilmForce MajeureGettIdaLeviathan — WINNERTangerines Mandarinid
Best Actor in a TV Series, Comedy or MusicalLouis C.K., LouieDon Cheadle, House of LiesRicky Gervais, DerekWilliam H. Macy, ShamelessJeffrey Tambor, Transparent — WINNER
Best ScreenplayWes Anderson, The Grand Budapest HotelGillian Flynn, Gone GirlAlejandro G. Iñárritu, Nicolás Giacobone, Alexander Dinelaris, Armando Bo, Birdman —WINNERRichard Linklater, BoyhoodGraham Moore, The Imitation Game
Best Supporting Actor in a Series, Mini-Series, or Motion Picture Made for TelevisionMatt Bomer, The Normal Heart — WINNERAlan Cumming, The Good WifeColin Hanks, FargoBill Murray, Olive KitteridgeJon Voight, Ray Donovan
Best Animated Motion PictureBig Hero 6The Book of LifeThe BoxtrollsThe Lego MovieHow to Train Your Dragon 2 — WINNER
Best Original Score, Motion PictureJohann Johannsson, The Theory of Everything — WINNERAlexandre Desplat, The Imitation GameTrent Reznor & Atticus Ross, Gone GirlAntonio Sanchez, BirdmanHans Zimmer, Interstellar
Best TV Series, Musical or ComedyGirls (HBO)Orange Is the New Black (Netflix)Transparent (Amazon) — WINNERSilicon Valley (HBO)Jane the Virgin (CW)
Best Song"Big Eyes," by Lana Del Ray—Big Eyes"Glory," by John Legend & Common—Selma — WINNER"Mercy Is," by Patti Smith & Lenny Kaye—Noah"Opportunity," by Greg Kurstin, Sia Furler, Will Gluck—Annie"Yellow Flicker Beat," by Lorde—Mockingjay
Best Actress in a TV Series, Comedy or MusicalLena Dunham, GirlsEdie Falco, Nurse JackieGina Rodriguez, Jane the Virgin — WINNERJulia Louis-Dreyfus, VeepTaylor Schilling, Orange Is the New Black
Best TV Movie or Mini-seriesThe Normal Heart (HBO)True Detective (HBO)Olive Kitteridge (HBO)Fargo (FX) — WINNERThe Missing (Starz)
Best Supporting Actress in a Series, Mini-Series, or Motion Picture Made for TelevisionUzo Aduba, Orange Is the New BlackKathy Bates, American Horror Story: Freak ShowJoanne Froggatt, Downton Abbey —WINNERAllison Janney, MomMichelle Monaghan, True Detective
Best Supporting ActorRobert Duvall, The JudgeEthan Hawke, BoyhoodEdward Norton, BirdmanMark Ruffalo, FoxcatcherJ.K. Simmons, Whiplash — WINNER
Best Actor in a TV Movie or Mini-seriesMartin Freeman, FargoWoody Harrelson, True DetectiveMatthew McConaughey, True DetectiveMark Ruffalo, The Normal HeartBilly Bob Thornton, Fargo — WINNER
The moments you DIDN'T see at the awards
The Golden Globe Awards are well and truly underway and so are the offensive jokes...
Amy Poehler and Tina Fey are back hosting the Golden Globes for the third and final time… and let's just say they are not holding back!
Ever wondered how celebrities look so FLAWLESS on a red carpet with absolutely no VPL? (That's visible panty line for those playing at home) Well we've taken our knowledge of undies (we've always dressed ourselves in them) plus some red hot guesses…and
We take a sneak peak behind the scenes at the Golden Globes, checking out the swag bags and what's on the menu for all the celebrities in attendance!
This is just so you're prepared for absolutely everything, even the things that won't happen.
Southern Cross Austereo


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122 total
Both arrests were made in Burlington County NJ. The first in Delran and the second in Lumberton. He also has a current Felony charge for possession of a controlled substance (marijuana)
I'll start by echoing the sentiments of many people here, we need more information. Rather than post facts here, you should have him call a lawyer who specializes in DWI defense, perhaps one who does ONLY DWI defense work. Hiring a general practitioner can be risky as very few have the training, experience, and scientific knowledge needed to fight a DWI, let alone two. However, such an lawyer is not cheap. Lawyers are not like one size fits all shirts, you will not get the same service from just any lawyer.
To start, we need details on the reason for the stop. Police must have a reasonable and articulable suspicion to stop a motor vehicle and probable cause to arrest. Observations made by the police officer as to what he smelled, saw, and heard, will play an important role here, especially in the form of field sobriety testing. Probable cause will allow the officer to make the arrest.
Next we need to look at the chemical testing. Was it breath, blood, or urine? Breath tests can be difficult to challenge, especially if you don't know what to look for. A good lawyer, will be able to analyze the discovery for defects and scientific deficiencies. I emphasize science here because it is science that is used to convict and the science which must be challenged to win. A good lawyer comes into a case saying "there is no trust me in science." Blood and urine are easier to beat than breath...in the right lawyers hands.
What constitutes the right lawyer?
Is her or she trained in field sobriety testing?
Have they received formal Alcotest training? Are they a certified Alcotest operator. You know there are 70,000 lawyers in NJ and less than 80 have taken the opportunity to take this training.
Are they trained in the forensic analysis of blood and urine? The American Chemical Society has a specialized training course that will allow lawyers to learn how blood, urine, and drugs are analyzed and how to challenge those results. They even have a special designation known as Lawyer-Scientist.
Is the lawyer a trial attorney? One way to know is by either meeting them or talking to them on the phone. If they start talking about pleading guilty, they are probably not a trial lawyer. There is a special certification available to Municipal Court Trial Lawyers, which requires them to handle a certain number of DWI cases, try a certain number of DWI cases, and then pass a test. Few have this designation.
What professional DWI associations are they a member of?
What DWI seminars have they attended? There are national DWI seminars out there. If a lawyer can't take the time to attend, maybe you continue looking for a lawyer.
If you are looking for a cheap lawyer, remember, you get what you pay for.See question
Never arrested. I skid on the snow and a trooper came out. He searched me & took a legal prescription for pain off me then got a DRE. Both lied and said I was impaired. The video and 911 call shows I was not. I did not know I didn't have to give u...
Let's address your points one at a time.
(1) You were arrested. That is why you are here today. There is no magical word "you are under arrest." The minute he deprived you of your liberty, put the cuffs on, and took you to the station, you were under arrest.
(2) The officer says you are impaired. You disagree. This is an opinion. He will base his opinion on the DRE examination, particularly the vital signs. Most importantly, he will base his opinion on any admission you made. For example, if you admitted to taking oxycodone for pain, then based on your vitals and your admission, he will opine that you were under the influence of a narcotic analgesic. The question comes down to (a) how well does your lawyer know the DRE curriculum to challenge the DRE opinion and (b) who will the judge believe. DREs can be beaten, but you need a Judge who will agree the science is flawed.
(3) Reckless driving instead of a DWI is very hard to come by. This is a great result and a home-run. You should take it. Reckless can be justified by driving conduct. Maybe you were going to fats for icy conditions? Again a reckless is a home-run, you should be thanking this lawyer, naming a kid after him, etc.
(4) Municipal Court judges are generally family law lawyers, with little to know experience in criminal/municipal court matters. They are also political appointments. They also are inclined to believe a well trained police officer over a suspected impaired driver. Judges will usually find people guilty.
(5) Your lawyer is playing the game you want him to. You won't take the reckless, so what is there left to do. If you are innocent then he can't plead you to a DUI. He is covering his ass, and rightfully so. If you are convicted after a trial, then there can be no allegation of malpractice, especially since you were offered a reckless and turned it down.
(6) You would have to pay a full fee.
(7) You would have to PROVE corruption. If you can, then the place would be the NJ Attorney General's Office.See question
First offense DWI, and .23 alco test. Info. discovered by expert...1. Officer failed to check oral cavity before breathalyzer test. 2. Officer failed to change mouth piece between tests and 3. Missing information (not provided during discovery) ...
It sounds like you have some doubt in what your lawyer is advising you. Well, rest assured, he or she is telling you the truth when they say that experts can help. I have used experts in many cases and have received favorable results is many of them. However, there is no guarantee the Prosecutor will accept the Expert's opinion and dismiss/ reduce the charges/ In that situation you need two things: (1) a lawyer with courage to take your case to trial and (2) to have your expert paid to be in court.See question
If you have had 2 dui's can you get a cdl in new jersey?
There is no easy answer to this. If you had a CDL when you got your second, then they would permanently take it away. However, you may not be precluded. You should apply and make sure you are truthful with al questions. The worst that can happen is they say no.See question
Ran out of gas, was outside the vehicle trying to wave someone down.
If you are found guilty the court will suspend your license for 7 to 12 months. You will be required to install an ignition interlock device for 6 to 18 months, you will pay fines of $300 to $500, $364 in assessments, $1,000 a year for three years to MVC, and 12 hour alcohol evaluation.
Hiring a lawyer is the ONLY chance you have of beating this charge. A very good lawyer may be able to find a defense to your charges and your breath test result. But beware of imitators.See question
Hello. I was in my IDRC class yesterday when that severe storm came through and the electric went out, so the class got done early, but we still got credit for it. Now today for the second session, I don't know if we have class or not. Those surro...
The best thing you can do is show up.See question
My lawyer has had months and did not get the 911 call. They sent a letter they can't locate it. Lawyer said it's better not to get because it has to go through Prosecutor and will 'tip him off'. I don't trust this theory, I think they didn't act ...
As a Lawyer who specializes in DWI, I always want the 911 recordings, so I know what is on there and what is not. By not getting it, your lawyer could be leaving defenses on the table. As for them not finding it, that is another story. There may be a motion or two available to you for the lost discovery.See question
My adult daughter had at least 3 dui's and many drug charges - was also caught driving on suspension. Presently does not reside with us in nj, been in and out of jail rehabs. Wants to return home to reside with family - I stated "no" because our n...
Insurance companies are allowed to set conditions for their policy holders. Your daughter is of such a high risk category and they can set limits, not where she lives, but on who they carry. The theory is that she could possibly drive one of the insured vehicles and have an accident, or another DWI.
She needs to get her suspension over with and then go event free for three years before the insurance companies do not see her as a high risk.See question
Only hospital has BAC
The State has ninety days from the date of arrest to charge you and serve you with a complaint. You wrote that the only the hospital has your results. How do you know this? Just because your blood was drawn at the hospital does not mean it was analyzed there. In most blood DWIs, the arresting officer takes possession of the blood and transports it to his station where it is stored in an evidence refrigerator. A few days later, it is then transported to the lab for analysis. If the hospital does in fact have the results, the State can obtain them through a "Dyal" subpoena.
What you need here is a lawyer who understands not only the law (especially constitutional law), but the analytical chemistry as well. An attorney who specializes in DWI is a good place to start.See question
I received an OUI in mass in September. I've already been to court in mass. I lost my license in mass for 45 days. I have since gotten my license back in mass. I live in nj and it is an nj license. Should I tell nj about the offense and if so, how...
As I recall, Mass is not part of the Interstate Motor Vehicle Compact, which means they will probably not report it. That does not mean that NJ will not find. You have no duty to report anything to MVC, unless you are a glutton for punishment and surcharges.See question


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This article was published in the following journal.
Name: American journal of respiratory and critical care medicine
Pages: 1086
Inhaled Mannitol as a Laryngeal and Bronchial Provocation Test.
Timely diagnosis of vocal cord dysfunction (VCD), more recently termed "inducible laryngeal obstruction," is important because VCD is often misdiagnosed as asthma, resulting in delayed diagnosis and i...
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This is the first study that aimed to look specifically at the utility of the 5(th) nap in the multiple sleep latency test (MSLT), a test used to assist in the diagnosis of narcolepsy.
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Nonsteroidal anti-inflammatory drugs (NSAIDs) take first or second place as the cause of drug-induced hypersensitivity reactions. The oral provocation test (OPT) is a gold standard for the diagnosis o...
The Lack of Utility of Anti-tTG IgG in the Diagnosis of Celiac Disease When Anti-tTG IgA Is Negative.
Guidelines for diagnosing celiac disease (CD) recommend initial testing with a highly sensitive serologic test for anti-tissue transglutaminase immunoglobulin A antibodies (tTG IgA). When the probabil...
Dynamic Changes in Heart Rate Variability and Nasal Airflow Resistance during Nasal Allergen Provocation Test.
Allergic rhinitis is a major chronic respiratory disease and an immunoneuronal disorder. We aimed at providing further knowledge on the function of the neural system in nasal allergic reaction. Here, ...
Measurement of Exhaled Nitric Oxide (NO) and Bronchial Provocation Test With Mannitol as a Predictor of Response to Inhaled Corticosteroids in Chronic Cough
Chronic cough is defined by its persistence beyond 8 weeks. Many conditions can explain the existence of a bronchial inflammation. In the management of chronic cough, the search for bronch...
Titrated Quantitative Conjunctival Provocation Test (tqCPT)
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A Study of Serial Magnetic Resonance Cholangiopancreatography (MRCP) Following Morphine-neostigmine and Secretin Provocation in Healthy Volunteers
The sphincter of Oddi is a circular band of muscle which controls the flow of pancreatic juices and bile into the small intestine. Abnormal function of the Sphincter of Oddi, known as Sphi...
Venous Pressure Measurement of the Great Saphenous Vein Using Controlled Compression Ultrasound in Healthy Persons and Patients With Chronic Venous Disease as a New Non Invasive Method for Investigation of the Pathophysiology in Primary Varicose Veins
Part I: Proof of concept trial to achieve normal venous pressure values under different provocation maneuvers in healthy persons Part II: Non invasive measurement of venous ...
Assessing the Usability and Clinical Utility of the Congo Red Dot Test: A Case-control Study
A case-control study will evaluate the clinical utility of the CRD test in following women with a clinical diagnosis of preeclampsia and clinically healthy women in the postpartum period i...
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Application of allergens to the nasal mucosa. Interpretation includes observation of nasal symptoms, rhinoscopy, and rhinomanometry. Nasal provocation tests are used in the diagnosis of nasal hypersensitivity, including RHINITIS, ALLERGIC, SEASONAL.
Nasal Lavage Fluid
Fluid obtained by irrigation or washout of the nasal cavity and NASAL MUCOSA. The resulting fluid is used in cytologic and immunologic assays of the nasal mucosa such as with the NASAL PROVOCATION TEST in the diagnosis of nasal hypersensitivity.
Bronchitis, Chronic
A subcategory of CHRONIC OBSTRUCTIVE PULMONARY DISEASE. The disease is characterized by hypersecretion of mucus accompanied by a chronic (more than 3 months in 2 consecutive years) productive cough. Infectious agents are a major cause of chronic bronchitis.
Predictive Value Of Tests
In screening and diagnostic tests, the probability that a person with a positive test is a true positive (i.e., has the disease), is referred to as the predictive value of a positive test; whereas, the predictive value of a negative test is the probability that the person with a negative test does not have the disease. Predictive value is related to the sensitivity and specificity of the test.
Basophil Degranulation Test
An in vitro test used in the diagnosis of allergies including drug hypersensitivity. The allergen is added to the patient's white blood cells and the subsequent histamine release is measured.
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filed: February 27, 1981.
GLORIA BRUGNOLI, T/A GLORIA'S LOUNGEv.UNITED NATIONAL INSURANCE COMPANY, A CORPORATION, APPELLANT
No. 700 April Term, 1979, Appeal from the Judgment of the Court of Common Pleas of Allegheny County, Civil Division, No. GD 76-01664.
Paul J. Senesky, Philadelphia, for appellant.
J. Kerrington Lewis, Pittsburgh, for appellee.
Cavanaugh, Hoffman and Van der Voort, JJ.
[ 284 Pa. Super. Page 513]
Appellant contends that the lower court erred in holding it liable for appellee's costs in settling a lawsuit against her. We agree and, accordingly, reverse the judgment of the lower court.
In April of 1969, appellee, Gloria Brugnoli, owned and operated Gloria's Lounge, a restaurant and bar which was licensed to sell intoxicating beverages. At that time Gloria's Lounge was insured by a policy issued by appellant, United National Insurance Company (United). The policy provided for indemnification for liability arising from the conduct of the business, with bodily injury limits of $5,000 per person and $10,000 per occurrence. Expressly excluded from coverage was liability for injuries resulting from "the selling, serving or giving of any alcoholic beverage . . . to a person under the influence of alcohol." The policy further provided
[ 284 Pa. Super. Page 514]
that United would investigate and defend any lawsuit arising out of the operation of the business, within policy coverage.
On April 19, 1969, Glen C. Cantrell fatally shot George A. Silvus in Gloria's Lounge.*fn1 One year later, on April 17, 1970, the estate of Silvus instituted suit against Brugnoli in the Court of Common Pleas of Westmoreland County by means of a writ of summons. Brugnoli took the writ to her personal attorney, Thomas R. Ceraso, who entered his appearance and then sent the writ to United. United engaged Robert Hassinger, an independent adjuster, to conduct an investigation into the incident. Sometime in May, 1970, Hassinger contacted Ceraso and requested that Brugnoli execute an agreement providing that United, by its participation in the investigation and defense of the Silvus action, was not waiving its right to later disclaim any obligations for claims not covered by the insurance policy. Ceraso refused to allow Brugnoli to sign such an agreement. Subsequently, in early August, 1970, the Silvus estate filed its complaint against Brugnoli. The complaint alleged liability for Silvus' death on the grounds of service of alcoholic beverages to an intoxicated person (Cantrell) and general negligence. Ceraso again entered his appearance, and he then sent a copy of the complaint to Hassinger, who in turn forwarded it to United along with a letter stating his belief that service of alcoholic beverages to Cantrell was the only possible basis of liability.*fn2 On August 11, 1970, general counsel for United sent a letter to Ceraso, the text of which is as follows:
This is to advise you that we are the general counsel for United National Insurance Company and Mr. Hassinger has forwarded to us the material you sent to him on August 4, 1970. Our examination of the Complaint indicates
[ 284 Pa. Super. Page 515]
the possibility of liability unrelated to the service of intoxicating liquors. Because of this possibility, we are prepared to take over the defense of the matter and our claims department is presently arranging to do just that.
However, we would like to point out as a matter of courtesy and fairness at this point that your client did not have "Liquor Liability" coverage and consequently if the ultimate liability, if any there be, turns out to be predicated upon the negligent or improper furnishing of intoxicating beverages by the defendant to any person or persons, then the policy in question would not cover the judgment and our client, United National Insurance Company, would be forced to disclaim.
However, until such time, we certainly intend to make a vigorous investigation and give a complete defense.
You will hear directly from the company or Mr. Hassinger as to the attorney designated to represent the defense.
If there is any question in connection with this please do not hesitate to communicate with me.
Within several days United notified Ceraso that it had retained Robert A. Cohen, a Pittsburgh attorney, to defend the Silvus action. Cohen arranged with Ceraso to have his appearance entered and reminded Ceraso of the limitations of United's coverage. Cohen and Ceraso subsequently agreed that Ceraso would be the lead attorney in the defense and would conduct the trial if one were held. Cohen was to appear at trial to assist Ceraso, but it was agreed that he would not sit at counsel table.
Between August, 1970, and May, 1973, Ceraso and Cohen communicated sporadically concerning the Silvus action. The case was scheduled and rescheduled for trial on several occasions during this interval. On May 7, 1973, Ceraso concluded negotiations with the Silvus estate to settle the case for $3,000. It should be emphasized that Ceraso had undertaken these negotiations without consulting United; neither Cohen nor anyone else representing United participated
[ 284 Pa. Super. Page 516]
in, or was aware of, the settlement talks.*fn3 Although Brugnoli subsequently disputed the settlement, she ultimately paid it and sought reimbursement from United. United refused, and Brugnoli then brought this action to recover the cost of settlement. Following a jury trial, both sides moved for a directed verdict. The lower court granted Brugnoli's motion and thereafter entered judgment for her in the amount of $3,485.85. This appeal followed.
The lower court based its decision in part on the ground that United was estopped from denying coverage by its continued participation in the defense of the Silvus action despite its belief that any liability assessed to Brugnoli would not be covered by the policy. We must reject this conclusion for several reasons. We note initially that an insurer's "obligation to defend arises whenever the complaint filed by the injured party may potentially come within the coverage of the policy." Gedeon v. State Farm Mutual Automobile Insurance Co., 410 Pa. 55, 58, 188 A.2d 320, 321 (1963) (emphasis in original). See also Seabord Industries, Inc. v. Monaco, 258 Pa. Super. 170, 178, 392 A.2d 738, 742 (1978). "Thus, if there are two separate causes of action and one would constitute a claim within the scope of the policy's coverage, the insurer has a duty to defend until it can confine the claim to a recovery excluded from the scope of the policy." Id., 258 Pa. Super. at 179, 392 A.2d at 743 (citing cases). Notwithstanding the duty of the insurer to defend in a case such as this,
it is the general rule that an insurance company may not undertake the defense of a suit which entails the defendant's relinquishing to the company the management of the case and then turn around and deny liability under its policy. As stated in Basoco v. Just, 154 Pa. Super. 294, 297, 35 A.2d 564, 565 (1944), "When [the insurance company] substitute[s] itself and its judgment for that of the defendant, both plaintiff and defendant have a right to insist that the final judgment establishes the liability and
[ 284 Pa. Super. Page 517]
debt of the company to the assured." See Lewis v. Fidelity & Casualty Co., 304 Pa. 503, 156 A. 73 (1931); Malley v. American Indemnity Corp., 297 Pa. 216, 146 A. 571, 81 A.L.R. 1322 (1929).
Jones v. Robbins, 258 F.Supp. 585, 588 (E.D.Pa.1966), aff'd per curiam, 374 F.2d 1002 (3d Cir. 1967). See also Perkoski v. Wilson, 371 Pa. 553, 92 A.2d 189 (1952); Cohen Appeal (Schmittinger v. Grogan), 182 Pa. Super. 399, 128 A.2d 114 (1956); Goulding v. Sands, 355 F.2d 230 (3d Cir. 1966); New Amsterdam Casualty Co. v. Kelly, 57 F.Supp. 209 (E.D.Pa.1944). See generally Annot., 38 A.L.R.2d 1148 (1954).
The inapplicability of the doctrine of estoppel in the present case becomes manifest upon examination of the conduct of United. The facts clearly show that United did not require Brugnoli to "relinquish[ ] to the company management of the case." Jones v. Robbins, supra at 588. Rather, United's participation in the defense of the Silvus action was undertaken on a cooperative basis with Brugnoli's private counsel, Ceraso. That this was so is shown by the trial arrangements to which Cohen and Ceraso agreed, as well as the limited consultation between the two attorneys.*fn4 Thus, this is not a case in which the insurance company "substituted itself and its judgment for that of the defendant," Basoco v. Just, 154 Pa. Super. 294, 297, 35 A.2d 564, 565 (1944), only to later disclaim liability under the policy.*fn5
[ 284 Pa. Super. Page 518]
An additional factor militating against a finding of estoppel is the letter of August 11, 1970, which general counsel for United sent to Ceraso in which United reserved its rights under the policy. Brugnoli made no objection to this reservation of rights, and thereafter accepted United's assistance in her defense. It is generally recognized that
[a] liability insurer will not be estopped to set up the defense that the insured's loss was not covered by the insurance policy, notwithstanding the insurer's participation in the defense of an action against the insured, if the insurer gives timely notice to the insured that it has not waived the benefit of its defense under the policy. However, a reservation of rights in this respect, to be effective, must be communicated to the insured. It must fairly inform the insured of the insurer's position and must be timely, although delay in giving notice will be excused where it is traceable to the insurer's lack of actual or constructive knowledge of the available defense.
[ 284 Pa. Super. Page 519]
14 G. Couch, Cyclopedia of Insurance Law § 51:83 (2d ed. 1965) (footnotes omitted). Accord, Perkoski v. Wilson, supra; Laroche v. Farm Bureau Mutual Automobile Insurance Co., 335 Pa. 478, 7 A.2d 361 (1939); Orcutt v. Erie Indemnity Co., 114 Pa. Super. 493, 174 A. 625 (1934). See generally Annot., 38 A.L.R.2d 1148 (1954). United's letter of August 11 was a straightforward, unambiguous statement acknowledging its obligations under the policy, yet at the same time reserving its right to disclaim coverage for any liability outside the scope of the policy. Since the potential that Brugnoli would incur liability covered by the policy existed up until the settlement, United could do no more than reserve its right to disclaim. Similar letters, coupled with insureds' acquiescence, have been held sufficient to reserve the rights of insurers to disclaim policy coverage. See, e. g., Duke v. Hoch, 468 F.2d 973 (5th Cir. 1972) (applying Florida law); Johnson v. Universal Underwriters, Inc., 283 F.2d 316 (7th Cir. 1960) (applying Kentucky law); Ancateau v. Commercial Casualty Insurance Co., 318 Ill.App. 553, 48 N.E.2d 440 (1943); United States Casualty Co. v. Home Insurance Page 519} Co., 79 N.J.Super. 493, 192 A.2d 169 (App.Div.1963). See generally Annot., 38 A.L.R.2d 1148, § 9 (1954).*fn6 Moreover, United's letter was timely (mailed within one week of its receipt of the Silvus complaint) and unquestionably sufficient to communicate its reservation of rights to Brugnoli, having been sent to her private attorney. Thus, we hold that the lower court erred in concluding that United was estopped by its conduct from denying coverage for the settlement costs.
The lower court based its decision additionally on the ground that United was a party to the settlement between Brugnoli and the Silvus estate. The court opined that "[t]he fact that settlement negotiations and final settlement was [ sic ] handled by Ceraso, in view of the working relationship established between Cohen and Ceraso, does not, under the circumstances of this case, eliminate United as a party to the settlement." Opinion of the lower court at 8. We disagree. The "working relationship" to which the lower court adverted was in fact simply the agreement that Ceraso would conduct the defense for Brugnoli at any trial in the Silvus action. There was little other communication between the attorneys, aside from Cohen's periodic telephone calls to Ceraso for status reports. United played no role in negotiating the settlement and was not consulted by Brugnoli or Ceraso before the settlement was concluded. In the only discussion between Cohen and Ceraso on the subject of settlement, conducted sometime before the settlement was reached, Cohen indicated that United would be willing to contribute only to what he termed the "nuisance value" of a settlement with the Silvus estate. Moreover, Ceraso himself testified that Brugnoli understood when she agreed to the
[ 284 Pa. Super. Page 520]
settlement that she would have to pay it herself and that United would make no contribution. Under these circumstances, we are unable to conclude that United was a party to, or otherwise ratified, the settlement. Accordingly, we hold that the lower court erred in directing a verdict for Brugnoli.
Judgment reversed.
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26730 Grosse Point Road, Red Wing, MN 55066
About the Listing
Horse lovers oasis. Private drive lined w/Colorado Blue Spruce leads to this 1 story home w/8 acres of fenced pasture, plus 2 tillable acres. State horse riding trails nearby. Pole barn w/2 tie stalls, 1 stall box & indoor riding arena. Several out buildings, some insulated, heated & A/C. Dog kennel has separate septic & elec meter. Home is super energy-efficient. Heat w/boiler or wood-burning 'Heatilator' FP. Great location for animals, B&B, storage business, dog kennel, or machine/woodshop.
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Property Details for 26730 Grosse Point Road, Red Wing, MN 55066
Bedrooms: 5
Bathrooms: 1 Full | 2 Three-Qtr
Lot Size: 10.00 Acres
Year Built: 1986
Garage Dimensions: 2 car
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Room Information for 26730 Grosse Point Road, Red Wing, MN 55066
Main Floor
Living Room: 15x12
Dining Room: 13x11
Kitchen: 14x13
Bedroom 1: 15x13
Bedroom 2: 11x10
Bedroom 3: 14x13
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Tax Year: 2016
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The data relating to real estate for sale on this web site comes in part from the Broker Reciprocity Program of the Regional Multiple Listing Service of Minnesota, Inc. Real estate listings held by brokerage firms other than the owner of this website are marked with the Broker Reciprocity logo or the Broker Reciprocity thumbnail logo and detailed information about them includes the name of the listing brokers.