the dauphin county reporter · alleged deprivation exceeds the prison sentence and “imposes...

ADVANCE SHEET

THE

Dauphin County Reporter(USPS 810-200)

A WEEKLY JOURNALCONTAINING THE DECISIONS RENDERED IN THE

12th JUDICIAL DISTRICT

No. 5622, Vol. 123 September 7, 2007 No. 75

Entered as Second Class Matter, February 16, 1898, at the Post Office at Harrisburg, Pa.,under the Act of Congress of March 31, 1879

Mills v. Pennsylvania Department of Corrections, et al. 423Bar Association Page Inside Back Cover

Pages 423-433

36 Years in Harrisburg

THEDAUPHIN COUNTY REPORTER

Edited and Publishedby the

DAUPHIN COUNTY BARASSOCIATION

213 North Front StreetHarrisburg, PA 17101-1493

(717) 232-7536____________

DONALD MORGANExecutive Director

JOYCE TAMBOLASAdministrative Assistant

BRIDGETTE L. HILBISHOffice Assistant___________

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THE DAUPHIN COUNTY REPORTER (USPS810-200) is published weekly by the DauphinCounty Bar Association, 213 North Front Street,Harrisburg, PA 17101. Periodical postage paid atHarrisburg, PA. POSTMASTER: Send addresschanges to THE DAUPHIN COUNTYREPORTER, 213 North Front Street, Harrisburg,PA 17101.

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Estate Notices

DECEDENTS ESTATES

NOTICE IS HEREBY GIVEN that letterstestamentary or of administration have beengranted in the following estates. All personsindebted to the estate are required to makepayment, and those having claims or demands topresent the same without delay to the administra-tors or executors or their attorneys named below.

FIRST PUBLICATION

ESTATE OF JON W. SHERMAN, late ofLower Paxton Township, Dauphin County,Pennsylvania. Executrix: Patricia A. Brenneman,3555 N. 6th Street, Harrisburg, PA 17110.Attorney: Thomas D. Gould, Esq., 2 East MainStreet, Shiremanstown, PA 17011. s7-s21

ESTATE OF JAMES W. SHOOP, late ofJackson Township, Dauphin County, Pennsyl-vania. Co-Executors: Jean Marie Laudenslager,448A South River Road, Halifax, PA 17032;Lynn Edwin Shoop, 330 Shoop Road, Halifax,PA 17032 and Miriam R. Snyder, 4374 Route209, Elizabethville, PA 17032. Attorney: EarlRichard Etzweiler, Esq., 105 North Front Street,Harrisburg, PA 17101. Telephone (717) 234-5600. s7-s21

ESTATE OF WILMOT E. GIPE, late of LowerPaxton Township, Dauphin County, Penn-sylvania (died July 31, 2007). Co-Executors:Cathy A. Rodgers, 163 South Fairville Avenue,Harrisburg, PA 17112 and Barry E. Gipe, 7730Avondale Terrace, Harrisburg, PA 17112.Attorney: Steven Howell, Esq., Howell LawFirm, 619 Bridge Street, New Cumberland, PA17070. s7-s21

ESTATE OF ROY A. HOLLINGER, late ofthe City of Harrisburg, Dauphin County,Pennsylvania (died August 11, 2007). Executor/Attorney: Peter J. Ressler, Esq., Mette, Evans &Woodside, 3401 North Front Street, Harrisburg,PA 17110. Telephone (717) 232-5000. s7-s21

ESTATE OF ANASTASIA F. GORMAN a/k/aANASTASIA FLORENCE WIGGINS GOR-MAN, late of Harrisburg, Dauphin County,Pennsylvania. Executor: Francis Cullen Gorman,19 Kensington Square, Mechanicsburg, PA17050. Attorney: Heather D. Royer, Esq., Smigel,Anderson & Sacks, LLP, 4431 North FrontStreet, Harrisburg, PA 17110. s7-s21

ESTATE OF JOHN M. STAHL, late of LowerPaxton Township, Dauphin County, Pennsyl-vania. Co-Executrices: Joann M. Stahl, 5723Cricket Lane, Harrisburg, PA 17112 and KathleenH. Stahl-Cousins, 74 Bradley Road, Milford,Maine 04461. s7-s21

423 (2007)] DAUPHIN COUNTY REPORTS 423

Mills v. Pennsylvania Department of Corrections, et al.

a filing of the same claims now in state court would warrant sanctionsunder 42 Pa.C.S.A. §8355.

Section 8355, Certification of pleadings, motions and other papers,provides for civil penalties, attorney fees and costs where an action isfiled in violation of the section. One of the requirements of the sectionis a certification (evidenced by filing counsel’s signature) that the plead-ing is wellgrounded in fact and law and not interposed in bad faith or forany improper purpose. This statute codifies the common law tort ofmalicious prosecution or wrongful litigation.

We decline to prejudge the application of this section to any future lit-igation which Andrew may contemplate. We will note, however, that thecase law makes clear that the award through arbitration is final and bind-ing. See, e.g., Borgia v. Prudential Ins. Co., 750 A.2d 843 (Pa. 2000).The matter is thus res judicata and further litigation on the issues raisedwould be necessarily precluded.

Accordingly, we enter the following:

ORDERAND NOW, August 20, 2007,

IT IS HEREBY ORDERED that Andrew’s Petition to VacateArbitration Award and Appoint New Arbitrators or, Alternatively, EnterDeclaratory Judgment Permitting Petitioner to File Action in State Courtis Denied.

_______o_______


Constitutional Law — Civil Rights — Due Process — Cruel and UnusualPunishment — Sovereign Immunity.

A former state prisoner sought compensatory and punitive damagesfor allegedly improper solitary confinement during his period of incar-ceration, and for denial of parole. The Court granted the CommonwealthDefendants’ Preliminary Objections and dismissed the Plaintiff’sComplaint.

1. In order to prove an action under 42 U.S.C. § 1983 (Civil Rights Act of 1871), a plain-tiff must show that a person acting under color of state law deprived the plaintiff of a rightprotected by the Constitution or other federal law. Neither states nor state officials

424 DAUPHIN COUNTY REPORTS [123 Dauph.


acting in their official duties are considered “persons” under § 1983. Will v. MichiganDept. Of State Police, 491 U.S. 58, 71 (1989). Additionally, the plaintiff in a civil rightsaction must show that each individual defendant was personally involved in the allegedunconstitutional conduct in order to properly state a claim. Sutton v. Rasheed, 323 F.3d236, 249 (3d Cir. 2003).

2. A prisoner only has a protected liberty interest against solitary confinement when thealleged deprivation exceeds the prison sentence and “imposes atypical and significanthardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v.Conner, 515 U.S. 472 at 484 (1995).

3. No state prisoner has a constitutional right to early release from prison on parole.Greenholz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1 (1979).

4. In order to recover damages for allegedly unconstitutional conviction or imprison-ment, or for other harm caused by actions whose unlawfulness would render a convictionor sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has beenreversed on direct appeal, expunged by executive order, declared invalid by a state tribu-nal authorized to make such determination, or called into question by a federal court’sissuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing thatrelationship to a conviction or sentence that has not been so invalidated is not cognizableunder § 1983. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

5. Sovereign immunity is considered an affirmative defense to be raised in an answerunder Pennsylvania law, except when the defense is apparent on the face of the com-plaint. Then preliminary objections are the proper vehicle for raising sovereign immuni-ty. Pa.R.C.P. 1030(a); Ziccardi v. School District of Philadelphia, 91 Pa. Commw. 595,597, 498 A.2d 452, 453 (1985). Pennsylvania has conferred sovereign immunity on allofficials and employees of the Commonwealth acting within the scope of their official duties, unless the General Assembly waives immunity. 1 Pa. C.S.§ 2310.

Preliminary Objections in the form of a Demurrer. C.P., Dau. Co., No.1013 S 2001. Objections Granted and Plaintiff’s Amended ComplaintDismissed.

Robert T. Vance, for Plaintiff

Patrick S. Cawley, for Defendants

HOOVER, J., August 21, 2007. – This matter comes before the courton Preliminary Objections of the Defendants PennsylvaniaDepartment of Corrections, Martin F. Horn, Secretary, thePennsylvania Board of Probation and Parole, William F. Ward,Chairman, Allen Castor, Member, Richard A. Kipp, Member,Benjamin A. Martinez, Member, Sean A. Ryan, Member, Gary R.Lucht, Member, Barbara K. Descher, Member, Lloyd A. White,Member, Michael M. Webster, Member, and Denise Kadish, PhD,Psychologist, SCI-Frackville (hereinafter, “the CommonwealthDefendants”) to the Amended Complaint of Plaintiff Peter David



Mills. For the reasons set forth herein, the Preliminary Objections ofthe Commonwealth Defendants are GRANTED and the AmendedComplaint is DISMISSED as to the Commonwealth Defendants.

I. PROCEDURAL BACKGROUND

Plaintiff, former state prisoner Peter David Mills, filed theComplaint against the Pennsylvania Department of Corrections andthe Pennsylvania Board of Probation and Parole in CommonwealthCourt. The Commonwealth Court then transferred the case to thisCourt on February 7, 2001 because Plaintiff sought compensatory andpunitive damages. Defendants filed Preliminary Objections to theComplaint, which this Court sustained on October 8, 2002 with leavefor Plaintiff to file an Amended Complaint.

Plaintiff filed an Amended Complaint on October 28, 2002, addingas Defendants Martin F. Horn, Secretary of the PennsylvaniaDepartment of Corrections, the eight individual members of thePennsylvania Board of Probation and Parole and Denise Kadish, PhD,SCI-Frackville Psychologist, to comprise the “CommonwealthDefendants.” Plaintiff also asserts claims against four “MedicalDefendants” in Count II of the Amended Complaint for allegedlyinadequate medical care during his incarceration. The MedicalDefendants provided psychiatric services to Plaintiff as a state prisoninmate, but are represented by separate counsel as they are notemployees of the Commonwealth of Pennsylvania. The MedicalDefendants have also filed Preliminary Objections, which are not yetripe for disposition.

Plaintiff did not effect proper service of process on theCommonwealth Defendants after filing the Amended Complaint. TheProthonotary granted Plaintiff’s request to reinstate the AmendedComplaint on October 27, 2003 and Plaintiff served the AmendedComplaint on the Commonwealth Defendants on February 13, 2004.The Commonwealth Defendants filed Preliminary Objections to theAmended Complaint on March 4, 2004; Plaintiff answered on June21, 2004, but did not file a Brief. The Commonwealth Defendantsfiled a Motion to Compel Discovery on July 1, 2005, which this Courtwould not entertain until the Court decided on both theCommonwealth and Medical Defendants’ Preliminary Objections. Incompliance with this Court’s April 11, 2007 Order, the Plaintiff fileda Brief in Opposition of the Commonwealth Defendant’s PreliminaryObjections on May 1, 2007.



II. FACTUAL BACKGROUND

Plaintiff was convicted in 1991, granted a new trial and convictedagain in 1994 of possession of a controlled substance. (AmendedComplaint, para. 10-11). This Court imposed a sentence of three toeight years with a fine of $15,000. (Amended Complaint, para. 10-11). Plaintiff was incarcerated at SCI-Frackville and remained invarious state correctional facilities until 1999. (Amended Complaint,para. 11, 19).

Plaintiff alleges that the Department of Corrections deprived him ofhis constitutionally protected right to due process of law by housinghim in solitary confinement for over two years and at intermittent peri-ods of his incarceration at SCI-Frackville and SCI-Graterford.(Amended Complaint, para. 20). Plaintiff initially alleged violation ofhis constitutionally protected right against cruel and unusual punish-ment through improper solitary confinement, but conceded to theCommonwealth Defendants’ Objections to this allegation in his Brief.Plaintiff also alleges that the Board of Probation and Parole deprivedhim of his constitutionally protected right to due process of law byrefusing to release him from prison for failing to agree to the terms ofa parole plan. (Amended Complaint, para. 18-19). In addition, Plaintiffextends these allegations of civil rights violations to CommonwealthDefendant Dr. Denise Kadish, SCI-Frackville Psychologist. Plaintiffalleges that Dr. Kadish’s medical evaluation of his mental health ledthe Department of Corrections to transfer him to solitary confinementand the Board of Probation and Parole to deny parole. (AmendedComplaint, para. 30-31).

Plaintiff was denied parole in 1996 and 1998 and was released fromprison on February 4, 1999 after serving his maximum sentence.(Amended Complaint, para. 21-22).

III. PRELIMINARY OBJECTIONS OF THE COMMONWEALTH DEFENDANTS

A. Standard for Preliminary Objections in the Form of Demurrer.

Pursuant to Pennsylvania Rule of Civil 1028, preliminary objectionsmay be filed by any party to a pleading in the form of a demurrer forlegal insufficiency of a pleading. Pa.R.C.P. 1028 (a)(4). “A demurrer canonly be sustained where a complaint is clearly insufficient to establishthe pleader’s right to relief.” County of Allegheny v. Commonwealth ofPA, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985). A pleading of demur-



rer in a preliminary objection “admits as true all well-pleaded, material,relevant facts.” County of Allegheny, 507 Pa. 360 at 372, 490 A.2d 402at 408.

We find that the Plaintiff’s Amended Complaint is clearly insufficientto establish his right to relief and the Commonwealth Defendants’Preliminary Objections in the form of a Demurrer should be granted.

B. Plaintiff failed to state a claim upon which relief can be grantedunder 42 U.S.C § 1983 against the Commonwealth Defendants.

Plaintiff’s Amended Complaint asserts violations of his constitution-ally protected rights under 42 U.S.C. § 1983. In order to prove a § 1983action, a plaintiff must show that a person acting under color of state lawdeprived the plaintiff of a right protected by the Constitution or otherfederal law. 42 U.S.C. § 1983. Plaintiff’s § 1983 claims in this case arebased upon alleged deprivation of his constitutionally protected right todue process under the Fourteenth Amendment to the U.S. Constitutionand the deprivation of the right to be free from cruel and unusual pun-ishment under the Eighth Amendment to the U.S. Constitution.

1. Plaintiff did not name proper parties as the CommonwealthDefendants.

We find that Plaintiff did not sufficiently name parties asCommonwealth Defendants to support a claim under § 1983. In Will v.Michigan Dept. of State Police, the U.S. Supreme Court held that nei-ther states nor state officials acting in their official duties are considered“persons” under § 1983. 491 U.S. 58, 71 (1989). We agree with theCommonwealth Defendants that the Plaintiff cannot maintain a § 1983action against the Pennsylvania Department of Corrections or thePennsylvania Board of Probation as these bodies were acting in theirofficial duties on behalf of the state when dealing with Plaintiff and can-not be considered “persons” under § 1983.

Additionally, the plaintiff in a civil rights action must show that eachindividual defendant was personally involved in the alleged unconstitu-tional conduct in order to properly state a claim. Sutton v. Rasheed, 323F.3d 236, 249 (3d Cir. 2003) (citing Rode v. Dellarciprete, 845 F.2d1195, 1207 (3d Cir. 1988)). The individually named CommonwealthDefendants could be considered “persons” under § 1983, but Plaintiffdid not allege specific conduct against each of the CommonwealthDefendants in the Amended Complaint and only referred to theCommonwealth Defendants as a whole. As Secretary of the Department



of Corrections, Martin F. Horn did not directly or personally make deci-sions regarding Plaintiff’s solitary confinement or parole plan. Likewise,the members of the Board of Probation and Parole with Dr. Kadish col-lectively, and not individually, made decisions relating to Plaintiff’sincarceration. Plaintiff does not properly state a claim because he failedto show how the individual Commonwealth Defendants were involvedin the unconstitutional conduct.

Because Plaintiff has had ample opportunity to plead the allegedlyunconstitutional conduct of the individual Commonwealth Defendants,we cannot sustain Plaintiff’s offer to further amend the AmendedComplaint to address this issue.

2. Plaintiff had no constitutional right against placement in solitaryconfinement.

We find that the Plaintiff was not deprived of a constitutionally pro-tected liberty interest when he was placed in solitary confinement dur-ing his prison sentence. The U.S. Supreme Court limited prisoner’s lib-erty interests in Sandin v. Conner, 515 U.S. 472 (1995). Like Plaintiff,the prisoner in Sandin alleged that he was deprived of his constitution-ally protected right to due process of law when he was placed in solitaryconfinement following misconduct during his sentence. Id. at 475-76.The Court determined that a prisoner only has a protected liberty inter-est against solitary confinement when the alleged deprivation exceedsthe prison sentence and “imposes atypical and significant hardship onthe innate in relation to the ordinary incidents of prison life.” Id. at 484.The Court in Sandin determined that the prisoner’s solitary confinementwas not a deprivation of a protected liberty interest because the condi-tions in solitary confinement mirrored those of the general prison popu-lation and the prison officials had the discretion to place the prisoner insolitary confinement based on his conduct. Id. at 486.

Griffin v. Vaughn further defined the Sandin standard when the ThirdCircuit held that a Pennsylvania prisoner’s placement in solitary con-finement for fifteen months was not a deprivation of a protected libertyinterest under the Fourteenth Amendment, as the transfer was not atypi-cal in the Pennsylvania prison system. 112 F.3d 703, 706-08 (3d Cir.1997).

We agree with the Commonwealth Defendants that Plaintiff does notstate a viable cause of action for his deprivation of a protected libertyinterest under the Fourteenth Amendment for his placement in solitaryconfinement in various state correctional facilities. The collective



decision of the Department of Corrections and Dr. Kadish to placePlaintiff in solitary confinement was rightly based on their discretionand was not atypical treatment of a Pennsylvania prisoner. Additionally,Plaintiff’s placement did not exceed his maximum sentence and Plaintiffmade no allegation in the Amended Complaint that he was mistreated insolitary confinement; nor does the Plaintiff allege that he was deprivedof any necessities such as food, medical care or clothing, which woulddistinguish his treatment in solitary confinement from that in the gener-al prison population.

The Commonwealth Defendants were acting within their discretion indeeming it necessary to place Plaintiff in solitary confinement during hisprison sentence. We reject Plaintiff’s claim that the length of his solitaryconfinement was atypical in Pennsylvania or that there was “no basis”for the Commonwealth Defendants’ conclusion to transfer him to soli-tary confinement. In his Brief, Plaintiff continually makes references to“no basis” for the Commonwealth Defendant’s decisions, but then failsto support these arguments.

Initially, Plaintiff alleged that his solitary confinement amounted tocruel and unusual punishment in violation of the Eighth Amendment inhis Amended Complaint. However, Plaintiff then conceded to theCommonwealth Defendants’ Objections to this allegation in his Brief.This Court need not address the alleged Eighth Amendment violationsof the Commonwealth Defendants.

3. Plaintiff cannot recover in an action for damages without first chal-lenging the validity of his sentence through a proper petition for a writof habeas corpus.

We find that Plaintiff cannot challenge the length of his prison sen-tence in his § 1983 claim because he did not first petition for a writ ofhabeas corpus. No state prisoner has a constitutional right to earlyrelease from prison on parole. Greenholtz v. Inmates of Neb. Penal andCorrectional Complex, 442 U.S. 1 (1979). Yet in his AmendedComplaint, Plaintiff alleges that it was unconstitutional for theCommonwealth Defendants to refuse him parole because he would notsign the parole plan. We agree with the Commonwealth Defendants thatthe Plaintiff is challenging the validity of his sentence in this way, whichfirst requires an order invalidating the sentence in accordance with theU.S. Supreme Court’s favorable termination rule in Heck v. Humphrey:

in order to recover damages for allegedly unconstitution-al conviction or imprisonment, or for other harm



caused by actions whose unlawfulness would render aconviction or sentence invalid, a § 1983 plaintiff mustprove that the conviction or sentence has been reversedon direct appeal, expunged by executive order, declaredinvalid by a state tribunal authorized to make such deter-mination, or called into question by a federal court’sissuance of a writ of habeas corpus, 28 U.S.C. § 2254. Aclaim for damages bearing that relationship to a convic-tion or sentence that has not been so invalidated is notcognizable under § 1983. 512 U.S. 477, 486-87 (1994).

We find that the favorable termination rule does apply to the facts of thiscase as Plaintiff alleges unconstitutional imprisonment through thedenial of parole. Since the Plaintiff’s claim challenges the validity of hissentence, he cannot recover damages for his allegations of civil rightsviolations under § 1983 without first proving that his sentence wasinvalidated, in accordance with Heck.

The procedural history of Plaintiff’s criminal record reveals thatPlaintiff did not challenge the validity of his sentence through a petitionfor a writ of habeas corpus during his incarceration, though he couldhave done so and was not barred from filing a petition. We rejectPlaintiff’s claim that it is not necessary for him to challenge the validityof his sentence before recovering damages, as the CommonwealthDefendants clearly and correctly find otherwise. Because his sentence isthen considered to be valid, Plaintiff’s claim for damages is barred under§ 1983.

Accordingly, because we find that Plaintiff did not properly state par-ties as the Commonwealth Defendants, did not have a constitutionallyprotected right against placement in solitary confinement and cannotrecover damages for alleged constitutional violations without first inval-idating his sentence through a writ of habeas corpus, the CommonwealthDefendants’ Preliminary Objection is GRANTED for failure to state aclaim upon which relief can be granted under 42 U.S.C. § 1983.

C. Plaintiff failed to state a claim upon which relief can be grantedunder Pennsylvania law against the Commonwealth Defendants.

Sovereign immunity is considered an affirmative defense to be raisedin an answer under Pennsylvania law, except when the defense is appar-ent on the face of the complaint, as it is here. Then preliminary objec-tions are the proper vehicle for raising sovereign immunity. Pa.R.C.P.1030(a); Ziccardi v. School District of Philadelphia, 91 Pa. Commw.595, 597, 498 A.2d 452, 453 (1985).



1. The Commonwealth Defendants are all entitled to sovereign immunity.

We find the Commonwealth Defendants are all entitled to sovereignimmunity from Plaintiff’s suit. Pennsylvania has conferred sovereignimmunity on all officials and employees of the Commonwealth actingwithin the scope of their official duties, unless the General Assemblywaives immunity. 1 Pa. C.S. § 2310. The Commonwealth granted nineexceptions in which to waive sovereign immunity: vehicle liability;medical-professional liability; care, custody or control of personalproperty; Commonwealth real estate, highways and sidewalks; pot-holes and other dangerous conditions; care, custody or control of ani-mals; liquor store sales; National Guard activities; toxoids and vac-cines. 42 Pa. C.S. § 4522(b).

In Williams v. Syed, the Commonwealth Court determined a three-part test for evaluating if a Commonwealth employee is protected fromliability by sovereign immunity: “whether the Commonwealthemployee was acting within the scope of his or her employment;whether the alleged act which causes injury was negligent and dam-ages would be recoverable but for the availability of the immunitydefense; and whether the act fits within one of the nine exceptions tosovereign immunity.” 782 A.2d 1090,1095 (Pa. Commw. 2001) (quot-ing LaFrankie v. Miklich, 152 Pa. Cmwlth. 163, 618 A.2d 1145, 1149(1992)).

We consider all of the Commonwealth Defendants to be officials ofthe Commonwealth: the Department of Corrections, Secretary Horn,the Board of Probation and Parole and its individual members and Dr.Kadish. The alleged unconstitutional acts of the CommonwealthDefendants relating to Plaintiff’s solitary confinement and denial ofparole were clearly conducted within the scope of the Defendants’ offi-cial duties to the Commonwealth. Because Plaintiff has had ampleopportunity to support the argument that the CommonwealthDefendants, specifically the Department of Corrections and SecretaryHorn, acted outside the scope of their duties, we reject Plaintiff’s offerto further amend the Amended Complaint. We agree with theCommonwealth Defendants that Secretary Horn cannot be held per-sonally liable for Plaintiff’s solitary confinement and denial of paroleas he did not directly make those decisions on behalf of theDepartment of Corrections. The Department of Corrections andSecretary Horn are entitled to sovereign immunity.



Plaintiff alleges that the individual members of the Board ofProbation and Parole were acting outside of the scope of their officialduties in denying Plaintiff parole because they were only permitted topostpone the date of parole until a “satisfactory plan” was arranged forPlaintiff as a parolee under 37 Pa. Code § 63.1(d). Upon closer exami-nation of this statute, the date of parole “may be postponed” until theapproval of a “satisfactory plan”; hence, the parole date is clearly with-in the discretion of the Board regardless of a satisfactory parole plan. 37Pa. Code § 63.1(d). Additionally, 37 Pa. Code § 63.5(a) requiresparolees to “comply with special conditions which are imposed by theBoard ...,” such as the parole date. We agree with the CommonwealthDefendants that if the individual members of the Board of Probation andParole refused Plaintiff parole based on his refusal to sign a parole plan,they were acting within the scope of their duties according to thePennsylvania Administrative Code and are therefore entitled to sover-eign immunity.

Even if the Commonwealth Defendants were not acting within thescope of their duties in relation to Plaintiff, we reject Plaintiff’s claimthat the acts of the Commonwealth Defendants, namely the individualmembers of the Board of Probation and Parole and Dr. Kadish, fall with-in the medical-professional liability exception to immunity. Plaintiffalleges that Dr. Kadish made an unconstitutional determination to denyparole to Plaintiff based on his mental state and the Board adopted herprofessional recommendation, so the individual members of the Boardand Dr. Kadish are all considered “medical providers” in accordancewith the second exception to sovereign immunity. 42 Pa. C.S. § 4522(b).However, the Commonwealth Court held in Williams v. Syed that onlythose employees working in the prison infirmary, and not the entireprison, can be held liable as “medical providers” for purposes of sover-eign immunity. 782 A.2d 1090, 1094-96 (Pa. Commw. 2001) (citingWareham v. Jeffes, 129 Pa. Cmwlth. 124, 564 A.2d 1314 (1989)).Therefore, the Department of Corrections, Secretary Horn, the Board ofProbation and Parole and its individual members are all entitled to sov-ereign immunity as they cannot be considered prison infirmary employ-ees, regardless of their adoption of Dr. Kadish’s recommendations.

The Commonwealth Defendants do concede that Dr. Kadish fallswithin the medical-professional exception to sovereign immunity as aCommonwealth employee working in the prison infirmary. However, inorder for this Court to waive immunity for Dr. Kadish, Plaintiff mustalso prove that Dr. Kadish was negligent and acting outside of the scopeof her official duties, according to the Williams v. Syed three-part test.



782 A.2d 1090, 1095 (Pa. Commw. 2001) (quoting LaFrankie v.Miklich, 152 Pa. Cmwlth. 163, 618 A.2d 1145, 1149 (1992)). We agreewith the Commonwealth Defendants that, although Dr. Kadish is consid-ered a medical provider for the Commonwealth, she was acting withinthe scope of her employment regarding Plaintiff’s allegations. We findthat Plaintiff has failed to sufficiently plead that Dr. Kadish’s actionswere negligent. Plaintiff contends that Dr. Kadish made notes on hismental state, which led the Board of Probation and Parole to imposeunreasonable parole conditions and ultimately deny him parole. Dr.Kadish was only doing her job by reporting on Plaintiff’s medical con-dition to the Board. Further, Plaintiff fails to make a complete allegationof negligence regarding Dr. Kadish in the Amended Complaint as heonly asserts that Dr. Kadish’s actions were a “proximate cause” of theconstitutional violations and makes no mention of the other elements ofnegligence: duty, breach and harm. Therefore, Dr. Kadish is entitled tosovereign immunity along with the other Commonwealth Defendants.

Accordingly, the Commonwealth Defendants’ preliminary objectionis GRANTED for failure to state claim upon which relief can be grant-ed under Pennsylvania law because all of the CommonwealthDefendants are entitled to sovereign immunity.

IV. CONCLUSIONFor all of the foregoing reasons, we enter the following:

ORDERAND NOW, this 21st day of August, 2007, this Court GRANTS the

Preliminary Objections of the Commonwealth Defendants for Plaintiff’sfailure to state a claim under federal and Pennsylvania law. Plaintiff’sAmended Complaint against the Commonwealth Defendants is herebyDISMISSED.

_______o_______

ESTATE OF DOUGLAS LYND TILLYER,late of Middletown, Dauphin County, Pennsyl-vania (died May 1, 2007). Administrator: PatriciaJ. Yost, 239 North Union Street, Middletown, PA17057. Attorney: Stanley J. A. Laskowski, Esq.,Caldwell & Kearns, P.C., 3631 North FrontStreet, Harrisburg, PA 17110. s7-s21

ESTATE OF MADELINE C. FRANKLIN,late of the City of Harrisburg, Dauphin County,Pennsylvania. Executor: Ronald L. Franklin, 100Delmont Avenue, Harrisburg, PA 17111.Attorney: James H. Rowland, Jr., Esq., 812 N.17th Street, P.O. Box 1424, Harrisburg, PA17105-1424. s7-s21

ESTATE OF DOROTHY I. KOPPENHAVER,late of Upper Paxton Township, Dauphin County,Pennsylvania. Executor: Dale E. Koppenhaver,1313 Shippen Dam Road, Millersburg, PA 17061.Attorney: Earl Richard Etzweiler, Esq., 105North Front Street, Harrisburg, PA 17101.Telephone (717) 234-5600. s7-s21

ESTATE OF AUDREY M. BESHORE, late ofLower Paxton Township, Dauphin County,Pennsylvania (died August 17, 2007). Executrix:Barbara A. Nye, 7141 Sterling Road, Harrisburg,PA 17112. Attorney: John DeLorenzo, Esq., YorkLegal Group, LLC, 3511 North Front Street,Harrisburg, PA 17110. Telephone (717) 236-9675. s7-s21

ESTATE OF PEARL E. FOLTZ, late of theCity of Harrisburg, Dauphin County,Pennsylvania. Co-Executors: Donald G. Foltz,2457 Rudy Road, Harrisburg, PA 17104 andKaren G. Vogelsong, 6169 Haymarket Way,Mechanicsburg, PA 17050. Attorney: Charles J.DeHart, III, Esq., Caldwell & Kearns, 13 EastMain Street, Hummelstown, PA 17036. s7-s21

FIRST PUBLICATION

Estate Notices

SECOND PUBLICATION

ESTATE OF MARY H. OCH, late of MiddlePaxton Township, Dauphin County, Pennsylvania(died September 23, 2006). Executrix: JacquelynR. Ryan. Attorney: Steven P. Miner, Esq., DaleyZucker Meilton Miner & Gingrich, LLC, 1035Mumma Road, Suite 101, Wormleysburg, PA17043. a31-s14

ESTATE OF MARY ALICE FILIMEK, late ofLower Paxton Township, Dauphin County,Pennsylvania (died August 2, 2007). Executrix:Catherine H. Voithofer. Attorney: David C.Miller, Jr., Esq., 1100 Spring Garden Drive, SuiteA, Middletown, PA 17057. Telephone (717) 939-9806. a31-s14

ESTATE OF WANDA A. DAVIS, late ofSwatara Township, Dauphin County, Penn-sylvania. Executor: Charles Oakley, Sr., 1082Acri Drive, Harrisburg, PA 17111. Attorney:Heather D. Royer, Esq., Smigel, Anderson &Sacks, LLP, 4431 North Front Street, Harrisburg,PA 17110. a31-s14

ESTATE OF BETTY J. KAUFFMAN, late ofthe City of Harrisburg, Dauphin County,Pennsylvania (died May 8, 2007). Executor/Attorney: Steve C. Nicholas, Esq., Nicholas LawOffices, PC, 2215 Forest Hills Drive, Suite 37,Harrisburg, PA 17112-1099. a31-s14

ESTATE OF SAM DENOVICH, late of LowerPaxton Township, Dauphin County,Pennsylvania. Administratrix: Patricia Denovich,221 Maplewood Drive, Johnstown, PA 15904.Attorney: Jay R. Braderman, Esq., 126 LocustStreet, P.O. Box 11489, Harrisburg, PA 17108-1489. a31-s14

ESTATE OF GRACE M. RENNO, late ofSwatara Township, Dauphin County, Pennsyl-vania. Executor: Philip R. Renno, 530 BriarcliffAvenue, Utica, NY 13502. Attorney: Joseph A.Curcillo, III, Esq., Beinhaur & Curcillo, 3964Lexington Street, Harrisburg, PA 17109. a31-s14

ESTATE OF MARGARET M. JARMAN, lateof Derry Township, Dauphin County, Pennsyl-vania (died July 31, 2007). Executor: Michael G.Jarman. Attorney: Elizabeth P. Mullaugh, Esq.,McNees Wallace & Nurick LLP, 100 Pine Street,P.O. Box 1166, Harrisburg, PA 17108-1166.Telephone (717) 237-5243. a31-s14

ESTATE OF ELIZABETH KOSTELEC, lateof Swatara Township, Dauphin County, Pennsyl-vania. Executor: John R. Zonarich, 17 SouthSecond Street, Harrisburg, PA 17101. Attorney:Bridget M. Whitley, Esq., Skarlatos & ZonarichLLP, 17 South 2nd Street, 6th Floor, Harrisburg,PA 17101. a31-s14

ESTATE OF ANNA E. BENKOVIC, late ofSteelton Borough, Dauphin County, Pennsyl-vania. Executrix: Mary M. Benkovic, 434 SouthSecond Street, Steelton, PA 17113. Attorney:Bridget M. Whitley, Esq., Skarlatos & ZonarichLLP, 17 South 2nd Street, 6th Floor, Harrisburg,PA 17101. a31-s14

THIRD PUBLICATION

ESTATE OF EULA E. BRADLEY a/k/aEULA BRADLEY, late of Harrisburg, DauphinCounty, Pennsylvania (died July 2, 2007).Executor: Davis E. Bradley. Attorney: Bruce J.Warshawsky, Esq., Cunningham & Chernicoff,P.C., 2320 North Second Street, Harrisburg, PA17110. a24-s7

ESTATE OF EDITH S. PETROVICH, late ofthe City of Harrisburg, Dauphin County,Pennsylvania (died August 7, 2007). Co-Executors: Jeffrey A. Weiner and Phillip S.Weiner. Attorney: Stephanie Kleinfelter, Esq.,Keefer Wood Allen & Rahal, LLP, 635 N. 12thStreet, Suite 400, Lemoyne, PA 17043. a24-s7

SECOND PUBLICATION

Estate Notices

ESTATE OF WILLIAM K. GINGRICH, lateof North Londonderry Township, LebanonCounty, Pennsylvania. Co-Executrices: BarbaraJohnson and JoAnn Swinehart. Attorney: RobertA. Hopstetter, Esq., Feeman, Mesics &Hopstetter, 247 S. 8th Street, Lebanon, PA 17042.Telephone (717) 272-3477. a24-s7

ESTATE OF GLADYS M. SHADE, late of theTownship of Jackson, Dauphin County, Pennsyl-vania (died June 6, 2007). Executrix: Karolyn M.Saul, 1305 Tourist Park Road, Halifax, PA 17032.Attorney: Joseph D. Kerwin, Esq., Kerwin &Kerwin, 4245 Route 209, Elizabethville, PA17023. a24-s7

ESTATE OF JOAN M. WASHINGTON, lateof the City of Harrisburg, Dauphin County,Pennsylvania. Co-Administrators: CatherineRobinson and Nayanda Lugaro, 2248 LoganStreet, Harrisburg, PA 17110. Attorney: David R.Getz, Esq., Wix, Wenger & Weidner, 508 NorthSecond Street, P.O. Box 845, Harrisburg, PA17108-0845. Telephone (717) 234-4182. a24-s7

ESTATE OF AUDREY Y. KISTLER, late ofSusquehanna Township, Dauphin County, Penn-sylvania (died July 26, 2007). Executor: RichardS. Kistler, 47 Sunset Drive, Boyertown, PA19512. Attorney: Jan L. Brown, Esq., Jan L.Brown & Associates, 845 Sir Thomas Court,Suite 12, Harrisburg, PA 17109. a24-s7

ESTATE OF BERNICE M. IBSEN, late ofLower Paxton Township, Dauphin County,Pennsylvania. Executrix: Shelia Altaker, 812Conodoguinet Drive, Camp Hill, PA 17011.Attorneys: Butler Law Firm, 500 North ThirdStreet, P.O. Box 1004, Harrisburg, PA 17108.

a24-s7

ESTATE OF HELENA M. ROOD, late ofSouth Hanover Township, Dauphin County,Pennsylvania (died July 27, 2007). Executrix:Darlene Krenitsky. Attorney: Nora F. Blair, Esq.,5440 Jonestown Road, P.O. Box 6216,Harrisburg, PA 17112. a24-s7

NOTICE IS HEREBY GIVEN in compliancewith the requirements of Section 8511 of theBusiness Corporation Law of 1988 a Certificateof Limited Partnership was filed with theDepartment of State of the Commonwealth ofPennsylvania, at Harrisburg, on August 22, 2007,for the purpose of obtaining a Certificate ofLimited Partnership for a limited partnership todo business in the Commonwealth ofPennsylvania. The name of the limited partner-ship is: C & S PROPERTY HOLDINGS, LP.The purpose for which the limited partnershipwas organized is: To engage in and do any lawfulact concerning any and all lawful business forwhich limited partnership may be incorporatedunder the Business Corporation Law of theCommonwealth of Pennsylvania.

PETER R. WILSON, Esq.Reager & Adler, PC2331 Market Street

Camp Hill, PA 17011s7 (717) 763-1383

NOTICE IS HEREBY GIVEN that anApplication for Certificate of Authority has beenfiled with the Department of State of theCommonwealth of Pennsylvania, at Harrisburg,PA on or about May 7, 2007, for a foreign corpo-ration with a registered address in the state ofPennsylvania as follows: DANISCO US INC.,c/o National Registered Agents, Inc.This corporation is incorporated under the lawsof the State of Delaware. The principal office c/o160 Greentree Drive, Suite 101, Dover, DE19904. The corporation has been qualified inPennsylvania under the provisions of theBusiness Corporation Law of 1988 as amended.

s7

NOTICE IS HEREBY GIVEN that Articles ofIncorporation were filed in the Department ofState of the Commonwealth of Pennsylvania forKengis Enterprises, Inc. on August 20, 2007under the provisions of the PennsylvaniaBusiness Corporation Law of 1988, as amended.

s7

FIRST PUBLICATION

Corporate Notices

NOTICE IS HEREBY GIVEN that anApplication for Certificate of Authority has beenfiled with the Department of State of theCommonwealth of Pennsylvania, at Harrisburg,PA on or about August 14, 2007, for a foreigncorporation with a registered address in the stateof Pennsylvania as follows: D.M.V., LTD., c/oEsquire Assist, Ltd.This corporation is incorporated under the lawsof the State of Michigan.The principal office 631 E. Big Beaver, Suite101, Troy, MI 48083. The corporation has beenqualified in Pennsylvania under the provisionsof the Business Corporation Law of 1988 asamended. s7

NOTICE IS HEREBY GIVEN that Cordell &Company Insurance Agency, Inc., a foreignbusiness corporation incorporated under the lawsof the State of TEXAS, where its principal officeis located at 3513 South Freeway, Fort Worth,Texas 76110, has applied for a Certificate ofAuthority in Pennsylvania, where its registeredoffice is located at 7208 Red Top Road,Hummelstown, PA 17036. The registered officeof the corporation shall be deemed for venue andofficial publication purposes to be located inDauphin County, Pennsylvania. s7

NOTICE IS HEREBY GIVEN that theCertificate of Authority was filed on August 7,2007 for the purpose of obtaining a Certificate ofAuthority pursuant to the provisions of theBusiness Corporation Law of 1988, 15 Pa. C.S.Section 1101. The name of the corporation isContracting Enterprises, Incorporated.The purpose for which the corporation is for util-ity construction and maintenance services. s7

NOTICE IS HEREBY GIVEN that aCertificate of Domestic Limited LiabilityCompany was filed with the PennsylvaniaDepartment of State Corporation Bureau on June26, 2007 by Marjulisadan Enterprises, LLC.The purpose of this limited liability company isto engage in all lawful businesses permittedunder the laws of Pennsylvania. Its place of busi-ness is: 2309 Concord Circle, Harrisburg, PA17110.

s7 MANDELL K. SHANKEN, Esq.

NOTICE IS HEREBY GIVEN that anApplication was made to the Department of Stateof the Commonwealth of Pennsylvania, atHarrisburg, PA, on August 16, 2007, by MARKIV INDUSTRIES, INC., a foreign corporationformed under the laws of the State of Delaware,where its principal office is located at One TowneCenter, 501 John James Audubon Parkway,Amherst, NY 14226, for a Certificate ofAuthority to do business in Pennsylvania underthe provisions of the Pennsylvania BusinessCorporation Law of 1988.The registered office in Pennsylvania shall bedeemed for venue and official publication pur-poses to be located c/o CT Corporation System,Dauphin County, Pennsylvania. s7

NOTICE IS HEREBY GIVEN that anApplication was made to the Department of Stateof the Commonwealth of Pennsylvania, atHarrisburg, PA, on August 13, 2007, by F.W.WEBB COMPANY, a foreign corporationformed under the laws of the Commonwealth ofMassachusetts, where its principal office islocated at 160 Middlesex Turnpike, Bedford,MA 01730, for a Certificate of Authority to dobusiness in Pennsylvania under the provisions ofthe Pennsylvania Business Corporation Law of1988.The registered office in Pennsylvania shall be

deemed for venue and official publication pur-poses to be located c/o Corporation ServiceCompany, Dauphin County, Pennsylvania. s7

NOTICE IS HEREBY GIVEN that Articles ofIncorporation were filed with the Department ofState for JOHN N DIAMOND, INC., a corpora-tion, organized under the Pennsylvania BusinessCorporation Law of 1988. s7

NOTICE IS HEREBY GIVEN that Articles ofIncorporation were filed with the Department ofState for LONGFORD INTERNATIONAL,INC., a corporation, organized under thePennsylvania Business Corporation Law of 1988.

s7

NOTICE IS HEREBY GIVEN that anApplication was made to the Department of Stateof the Commonwealth of Pennsylvania, atHarrisburg, PA, on August 21, 2007, by CITIRESIDENTIAL LENDING INC., a foreigncorporation formed under the laws of the State ofDelaware, where its principal office is located at390 Greenwich Street, New York, NY 10013, fora Certificate of Authority to do business inPennsylvania under the provisions of thePennsylvania Business Corporation Law of1988.The registered office in Pennsylvania shall be

deemed for venue and official publication pur-poses to be located c/o Corporation ServiceCompany, Dauphin County, Pennsylvania. s7

NOTICE IS HEREBY GIVEN that aCertificate of Authority for a Foreign BusinessCorporation was filed in the Department of Stateof the Commonwealth of Pennsylvania for iServeServicing, Inc. on July 27, 2007. The address ofits principal office under the laws of its jurisdic-tion is 160 Greentree Drive, Suite 101, Dover,DE 19904. The address of this Corporation’s pro-posed registered office is National RegisteredAgents, Inc., in the County of Dauphin. TheCorporation is filed in compliance with therequirements of the applicable provision of 15Pa. C.S 4124. s7

NOTICE IS HEREBY GIVEN that Articles of Incorporation were filed with the Depart-ment of State for EFFICIENT LIGHTINGPRODUCTS, INC., a corporation, organizedunder the Pennsylvania Business CorporationLaw of 1988. s7

NOTICE IS HEREBY GIVEN that Articles ofIncorporation were filed with the Department ofState for JEFF HELZEL CONSTRUCTION,INC., a corporation, organized under thePennsylvania Business Corporation Law of 1988.

s7

FIRST PUBLICATION

Corporate Notices

NOTICE IS HEREBY GIVEN, pursuant to theprovisions of the Fictitious Name Act, 54 Pa.C.S.§301, et seq., and its amendments and supple-ments, of filing with the Secretary of theCommonwealth of Pennsylvania, at Harrisburg,Pennsylvania on the 17th day of August, 2007, anapplication for conducting business under theassumed or fictitious name of T & A Haulingwith its principal place of business located at1605 Valley Road, Lykens, Dauphin County, PA17048.The names and addresses of all persons owningor interested in said business are: Timothy B.Neiswender - 1605 Valley Road, Lykens, PA17048; and Andy L. Wiest - 179 Carry Lane,Lykens, PA 17048.

JOSEPH D. KERWIN, Esq.Kerwin & Kerwin

4245 Route 209Elizabethville, PA 17023

s7 (717) 362-3215

IN THE COURT OF COMMON PLEASOF DAUPHIN COUNTY

PENNSYLVANIA

No. 2007-CV-01091

PETITION FOR CHANGE OF NAME

NOTICE

NOTICE IS HEREBY GIVEN that on May 30,2007, the Petition of Shawna Alicia Litt wasfiled in the above named court, requesting adecree to change her name from Shawna AliciaLitt to Seana Alicia Litt.

The Court has fixed September 25, 2007 inCourtroom No. 2 at 8:30 a.m., Dauphin CountyCourthouse, Front and Market Streets,Harrisburg, PA as the time and place for the hear-ing on said Petition, when and where all personsinterested may appear and show cause if any theyhave, why the prayer of the said Petition shouldnot be granted. s7


PENNSYLVANIA

CHANGE OF NAME

NOTICE IS HEREBY GIVEN that on the 30thday of April 2007, the petition of Erin E.Armstrong was filed in the above named Court,requesting an order to change the name of ErinE. Armstrong to Erin E. Royer.

The Court has fixed the 19th day of November,2007, at 1:15 p.m. in Courtroom #5, Third Floor,of the Dauphin County Courthouse, Front andMarket Streets, Harrisburg, Pennsylvania, as thetime and place for the hearing on said petition,when and where all interested parties may appearand show cause, if any, why the request of thePetitioner should not be granted.

s7 PAMELA L. PURDY, Esq.


PENNSYLVANIA

CIVIL ACTION – LAW

No. 2007-CV-6003-MF

NOTICE OF ACTION INMORTGAGE FORECLOSURE

DEUTSCHE BANK NATIONALTRUST COMPANY, AS TRUSTEE OF AMERIQUEST MORTGAGE SECURITIES INC., ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2004-R5 UNDER THE POOLING and SERVICING AGREEMENT DATED AS OFJUNE 1, 2004, WITHOUT RECOURSE,Plaintiffvs.JULIUS L. GRAYER and CHARISSE M. GRAYER, LAST RECORD OWNER, Defendants

TO: JULIUS L. GRAYER and CHARISSE M. GRAYER, LAST RECORD OWNER, Defendants whose last known address is 179 R StreetSteelton, PA 17113-3054

FIRST PUBLICATION

Fictitious Notices

FIRST PUBLICATION

Miscellaneous Notices

COMPLAINT IN MORTGAGE FORECLOSURE

YOU ARE HEREBY NOTIFIED thatPlaintiff, DEUTSCHE BANK NATIONALTRUST COMPANY, has filed a MortgageForeclosure Complaint endorsed with a Notice toDefend, against you in the Court of CommonPleas of Dauphin County, Pennsylvania, docket-ed to No. 2007-CV-6003-MF, wherein Plaintiffseeks to foreclose on the mortgage secured onyour property located, 179 R Street, Steelton, PA17113-3054, whereupon your property would besold by the Sheriff of Dauphin County.

NOTICE: YOU HAVE BEEN SUED INCOURT. If you wish to defend against the claimsset forth in this notice, you must take action with-in twenty (20) days after this Complaint andNotice are served, by entering a written appear-ance personally or by attorney and filing in writ-ing with the Court your defenses or objections tothe claims set forth against you. You are warnedthat if you fail to do so the case may proceedwithout you and a judgment may be enteredagainst you by the Court without further noticefor any money claimed in the Complaint or forany other claim or relief requested by thePlaintiff. You may lose money or property orother rights important to you.

YOU SHOULD TAKE THIS NOTICE TOYOUR LAWYER AT ONCE. IF YOU DO NOTHAVE A LAWYER GO TO OR TELEPHONETHE OFFICE SET FORTH BELOW. THISOFFICE CAN PROVIDE YOU WITH THEINFORMATION ABOUT HIRING A LAWYER.IF YOU CANNOT AFFORD TO HIRE ALAWYER, THIS OFFICE MAY BE ABLE TOPROVIDE YOU WITH INFORMATIONABOUT AGENCIES THAT MAY OFFERLEGAL SERVICES TO ELIGIBLE PERSONSAT A REDUCED FEE OR NO FEE.

DAUPHIN COUNTYLAWYER REFERRAL SERVICE

213 North Front StreetHarrisburg, PA 17101

(717) 232-7536

FIRST PUBLICATION


AVISO

LE HAN DEMANDADO A USTED EN LACORTE. Si usted quiere defenderse de estasdemandas expuestas en las paginas siguientes,usted tiene veinte (20) dias de plazo al partir de lafecha de la demanda y la notificacion. Hace faltaasentar una comparencia escrita o en persona ocon un abogado y entregar a la corte en formaescrita sus defensas o sus objecciones a lasdemandas en contra de su persona. Sea avisadoquo si usted no se defiende, la. corte tomaramedidas y puede continuar la demanda en contrasuya sin previo aviso o notificacion. Ademas, lacorte puede decidir a favor del demandante yrequiere que usted cumpla con todas las provi-siones de esta demanda. Usted puede perderdinero o sus edades u otros derechos importantespara usted.

USTED DEBE LLEVAR ESTE DOCUMEN-TO A SU ABOGADO INMEDIATAMENTE. SIUSTED NO TIENE UN ABOGADO, LLAME OVAYA A LA SIGUIENTE OFICINA. ESTAOFICINA PUEDE PROVEERLE INFORMA-CION A CERCA DE COMO CONSEGUIR UNABOGADO.

DAUPHIN COUNTYLAWYER REFERRAL SERVICE

213 North Front StreetHarrisburg, PA 17101

(717) 232-7536s7

LEGAL NOTICE

NOTICE IS HEREBY GIVEN that a hearingon the Petition of the Board of Control ofHarrisburg School District for approval to sellreal estate in the City of Harrisburg at 18th andDerry Streets will be held in the Dauphin CountyCourt of Common Pleas on September 20, 2007,at 1:00 p.m. in Courtroom No. 5. a24-s7

THIRD PUBLICATION


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Printing The Dauphin County Reporter everyweek for nearly 100 years

1424 HERR STREET

HARRISBURG, PA 17103

Vol. 123 DAUPHIN COUNTY REPORTS I

CUMULATIVE TABLE OF CASES

Acumix, Inc. v. Bulk Conveyor Specialists, Inc. . . . . . . . . . . . . . . 333

AFSCME District Council 90, Local 521 v.

City of Harrisburg, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310

Andrew v. CUNA Brokerage Services, Inc., et al. . . . . . . . . . . . . . 414

BARC Properties, et al., Foley v. . . . . . . . . . . . . . . . . . . . . . . . . . 344

Blockson, Yoder v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

Bordner, Lawrence v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Board of Control of the Harrisburg School District,

et al. v. Wilson, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

Board of Control of the Harrisburg School District,

et al. v. Wilson, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362

Board of School Directors of the Harrisburg School

District, et al., Control Board of the Harrisburg

School District, et al. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

Bulk Conveyor Specialists, Inc., Acumix, Inc. v. . . . . . . . . . . . . . 333

Chapman-Rollé v. Rollé . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

CitiFinancial Services, Inc. v. Loper . . . . . . . . . . . . . . . . . . . . . . . . 261

City of Harrisburg, et al.,

AFSCME District Council 90, Local 521 v. . . . . . . . . . . . . . . 310

Columbia Casualty Company v.

Coregis Insurance Company, City of Harrisburg . . . . . . . . . . . 1

Commonwealth v. Eckenrode . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

Commonwealth v. Floyd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339

Commonwealth v. McClucas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

Commonwealth v. Miller . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Commonwealth v. Stevenson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Connelly, et al., Rohrer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Control Board of the Harrisburg School District, et al. v.

Board of School Directors of the Harrisburg School

District, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

Coregis Insurance Company, City of Harrisburg,

Columbia Casualty Company v. . . . . . . . . . . . . . . . . . . . . . . . 1

CUNA Brokerage Services, Inc., et al., Andrew v. . . . . . . . . . . . . 414

Des-Ogugua v. For Sale By Owner Real Estate, Inc., et al. . . . . . . 14

Duke v. Hershey Medical Center . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

Eastern Atlantic Insurance Company v.

Swiss Reinsurance America Corporation . . . . . . . . . . . . . . . . . 161

Eckenrode, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

Erie Insurance Group v. Turner . . . . . . . . . . . . . . . . . . . . . . . . . . . . 298

Faust v. Walker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403

Ferster, et al., State Farm Mutual Automobile

Insurance Co. v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398

Floyd, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339

Foley v. BARC Properties, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . 344

For Sale By Owner Real Estate, Inc., et al., Des-Ogugua v. . . . . . . 14

Fromm v. Hershey Medical Center, et al. . . . . . . . . . . . . . . . . . . . . 35

Gemini Equipment Company, Wachovia Bank, N.A. v. . . . . . . . . 271

Hawn, et al., Snyder v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232

Hershey Medical Center, Duke v. . . . . . . . . . . . . . . . . . . . . . . . . . . 175

Hershey Medical Center, et al., Fromm v. . . . . . . . . . . . . . . . . . . . 35

Hourigan, Kluger, Spohrer & Quinn, P.C., Opel, et al. v. . . . . . . . 348

Hughes v. Hughes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291

II DAUPHIN COUNTY REPORTS Vol. 123

Cumulative Table of Cases

Hughes, Hughes v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291

Hummelstown Post No. 265, American Legion Department

of Pennsylvania and P. Jules Patt,

Room One Corporation v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383

In re: Taylor A.S., Minor Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329

Jacob v. Shultz-Jacob . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

Lawrence v. Bordner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Letteer v. Michalak . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Loper, CitiFinancial Services, Inc. v. . . . . . . . . . . . . . . . . . . . . . . . 261

McAfee v. Pinnacle Health Systems . . . . . . . . . . . . . . . . . . . . . . . . 324

McClucas, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

Michalak, Letteer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Middletown Area School District,

Susquehanna Area Regional Airport Authority v. . . . . . . . . . 85

Miller, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155

Mills v. Pennsylvania Department of Corrections, et al. . . . . . . . . 423

Morder v. Professional Aerials, Inc. . . . . . . . . . . . . . . . . . . . . . . . . 50

Opel, et al. v. Hourigan, Kluger, Spohrer & Quinn, P.C. . . . . . . . . 348

PennDOT, Santiago v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286

Pennsylvania Department of Corrections, et al., Mills v. . . . . . . . . 423

Pennsylvania Financial Responsibility

Assigned Claims Plan, Prowell v. . . . . . . . . . . . . . . . . . . . . . . 245

Peterson v. State Farm Fire & Casualty Company, et al. . . . . . . . . 128

Peterson v. State Farm Fire & Casualty Company, et al. . . . . . . . . 208

Pinnacle Health Systems, McAfee v. . . . . . . . . . . . . . . . . . . . . . . . 324

Vol. 123 DAUPHIN COUNTY REPORTS III


Professional Aerials, Inc., Morder v. . . . . . . . . . . . . . . . . . . . . . . . 50

Prowell v. Pennsylvania Financial Responsibility

Assigned Claims Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245

Ramer v. Ramer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Ramer, Ramer v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Rohrer v. Connelly, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Rollé, Chapman-Rollé v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198

Room One Corporation v. Hummelstown Post No. 265,

American Legion Department of Pennsylvania

and P. Jules Patt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383

Santiago v. PennDOT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286

Shultz-Jacob, Jacob v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253

Snyder v. Hawn, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232

State Farm Fire & Casualty Company, et al., Peterson v. . . . . . . . 128

State Farm Fire & Casualty Company, et al., Peterson v. . . . . . . . 208

State Farm Mutual Automobile Insurance Co. v.

Ferster, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398

Stevenson, Commonwealth v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Susquehanna Area Regional Airport Authority v.

Middletown Area School District . . . . . . . . . . . . . . . . . . . . . . 85

Swiss Reinsurance America Corporation,

Eastern Atlantic Insurance Company v. . . . . . . . . . . . . . . . . . 161

Turner, Erie Insurance Group v. . . . . . . . . . . . . . . . . . . . . . . . . . . . 298

Wachovia Bank, N.A. v. Gemini Equipment Company . . . . . . . . . 271

Walker, Faust v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 403

Wilson, et al., Board of Control of the Harrisburg


IV DAUPHIN COUNTY REPORTS Vol. 123


Wilson, et al., Board of Control of the Harrisburg


Yoder v. Blockson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296

Yodfat v. Yodfat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300

Yodfat, Yodfat v. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300

Vol. 123 DAUPHIN COUNTY REPORTS V


BAR ASSOCIATION PAGEDauphin County Bar Association

213 North Front Street • Harrisburg, PA 17101-1493Phone: 232-7536 • Fax: 234-4582

Board of Directors

Thomas E. Brenner Craig A. LongyearPresident President-Elect

Renee Mattei Myers John D. SheridanVice President Treasurer

James P. DeAngelo Thomas P. GackiSecretary Past President

Robert M. Walker Edward F. Spreha, Jr.Young Lawyers’ Chair Young Lawyers’ Vice Chair

William L. Adler Peter V. Marks, Sr.C. Grainger Bowman Pamela C. PolacekVincent L. Champion J. Michael SheldonRobert E. Chernicoff David F. Tamanini

S. Barton Gephart Jason M. WeinstockJames L. Goldsmith Lisa M. Woodburn

Darren J. Holst John F. ZonarichTheresa B. Male

Directors

The Board of Directors of the Bar Association meets on the third Thursday ofthe month at the Bar Association headquarters. Anyone wishing to attend or havematters brought before the Board should contact the Bar Association office inadvance.

REPORTING OF ERRORS IN ADVANCE SHEETThe Bench and Bar will contribute to the accuracy in matters of detail of the

permanent edition of the Dauphin County Reporter by sending to the editorpromptly, notice of all errors appearing in this advance sheet. Inasmuch as cor-rections are made on a continuous basis, there can be no assurance that correc-tions can be made later than thirty (30) days from the date of this issue but thisshould not discourage the submission of notice of errors after thirty (30) dayssince they will be handled in some way if at all possible. Please send such noticeof errors to: Dauphin County Reporter, Dauphin County Bar Association, 213North Front Street, Harrisburg, PA 17101-1493.

DAUPHIN COUNTY COURT SECTIONMotion Judge of the Month

SEPTEMBER 2007 Judge Lawrence F. CLARK, JR.OCTOBER 2007 Judge Scott A. EVANS

Opinions Not Yet ReportedAugust 24, 2007 – Turgeon, J., Commonwealth v. Miller (No. 2775, 2775-A, 2787 and

2787-A)

BAR ASSOCIATION PAGE – Continued

MISCELLANEOUS SECTION

ASSOCIATE — The Harrisburg office of Thomas, Thomas & Hafer LLP islooking for an associate with 3-5 years of litigation experience, preferably in theareas of general liability and/or medical malpractice. Please send confidentialresponses to Todd Narvol, Esquire, P.O. Box 999, Harrisburg, PA 17108 or email totnarvol,@tthlaw.com. a24-s7

ASSOCIATE GENERAL COUNSEL — Webclients.net, a ValueClick(Nasdaq: VCLK) company, is seeking an Associate General Counsel. The positioninvolves drafting, reviewing and negotiating contracts; preparing guidelines, policiesand procedures for the company to follow; providing day-to-day business counselingon a variety of issues; and managing the company's compliance initiatives. To apply,please email your resume and cover letter with salary requirements [email protected]. a31-s14

LEGAL SECRETARY/ BOOKEEPER — Skilled secretary / bookkeeperrequired for a small Harrisburg intellectual Property Law Firm. Full benefits andparking provided. Send resume to Charles Hooker, Hooker & Habib, P.C., 100Chestnut Street, Suite 304, Harrisburg, PA 17101, or email at [email protected]. s7-21

ATTORNEY — Experienced attorney sought by Harrisburg-based CentralPennsylvania law firm for trust & estate practice. Candidate should have at least 3-5 years of experience regarding estate planning & documentation, elder lawmatters, fiduciary taxation, estate & trust administration, and PA Orphans’ Courtprocedures. Resumes, with references, can be submitted in confidence to MaureenScarazzo, Firm Administrator, Goldberg Katzman, P.C., P.O. Box 1268,Harrisburg, PA 17108-1268. s7-s21

FOR LEASE — Professional Office Building, 219 State Street, Harrisburg, PA.Located 1/2 Block from Capitol Steps. Attractive 3 story brick w/ over 2200 SF plus4 Private Parking Spaces. Gross Lease $2,850/mo nego., Flexible Lease Term. CallRuss Goodrich, RE/Max, Delta Group Inc. 717-503-5880, 717-652-8200. s7-s21

T R I A L A H E A D ?CONSIDER AN ALTERNATE ROUTE:

Dauphin County Bar Association

Civil Dispute Resolution Program

Call (717) 232-7536 for details

BAR ASSOCIATION PAGE – Continued

MISCELLANEOUS SECTION

MEMORANDUM

Please be advised that the Honorable A. Richard Caputo will relocate hischambers to the Max Rosenn U.S. Courthouse in Wilkes-Barre, Pennsylvania,effective October 1, 2007. The address is as follows:

Honorable A. Richard CaputoMax Rosenn United States Courthouse197 S. Main St.Suite 235Wilkes-Barre, PA 18701

Telephone: 570-823-3962FAX: 570-823-4900

Document filings remain the same, i.e. electronically through the court’sElectronic Case Files System (ECF), located on the website at:www.pamd.uscourts.gov.

Please contact my office with any questions. s7-s14

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