J-S67025-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

MATTHEW DAVIDOFF,

                            Appellant                No. 386 MDA 2015


             Appeal from the Order Entered January 30, 2015
              In the Court of Common Pleas of Centre County
            Criminal Division at No(s): CP-14-CR-0000707-2014


BEFORE: BOWES, PANELLA AND PLATT*, JJ.

DISSENTING MEMORANDUM BY BOWES, J.:                FILED MARCH 01, 2016

      I respectfully dissent from the majority’s resolution of this appeal and

the appeal 424 MDA 2015. Based on the doctrine of the law of the case, I

would vacate the orders granting restitution and remand for entry of orders

denying restitution.

      These two appeals arise from the same bar fight that occurred at

approximately 1:45 a.m. on August 18, 2013 at The Phyrst bar on 111 East

Beaver Avenue, State College. Appellants Kelly Patrick Meenan and Matthew

Davidoff were in their twenties and attending a family celebration when the

incident occurred.      Both men were charged with disorderly conduct and

simple assault. On July 21, 2014, they entered pleas of nolo contendere to

simple assault in exchange for a sentence of probation, but they expressly
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retained the right to oppose restitution.1        That same day, the plea court

imposed     a   probationary     term    and   awarded   AmTrust   North   America

Incorporated (“AmTrust”), which was The Phyrst’s worker’s compensation

insurance carrier, $41,103.95 in restitution jointly and severally against

Appellants.     AmTrust was being reimbursed for amounts it expended in

connection with a knee injury sustained by Brandon Lonich, a bouncer who

was working at The Phyrst on August 18, 2013, when the fight occurred.

Appellants filed petitions to amend the restitution order averring that the

Commonwealth did not prove, at any proceeding, that the criminal act of

simple assault committed by each Appellant caused Lonich’s knee injury.

       On November 17, 2014, these matters proceeded to a joint restitution

hearing before the Honorable Bradley P. Lunsford.             At that time, the

Commonwealth increased the amount of restitution it was seeking to

$83,915.95, which included medical costs and worker’s compensation

benefits that AmTrust had paid to, or on behalf of, Lonich.



____________________________________________


1
    The plea agreement substantiates that Appellants retained the right to
challenge restitution, and the Commonwealth concedes the same.
Commonwealth’s brief at 7 (“the terms of the plea agreement allowed
Meenan and Davidoff to challenge the amount of restitution”). For this
reason, I agree with the majority that the trial court erred as a matter of law
in holding that restitution could be awarded herein based solely upon the
fact that Appellants entered nolo contendere pleas in these actions. That
ruling was contrary to the terms of the plea agreements.



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      Lonich testified as follows as to the events that caused his knee injury.

On the night in question, Davidoff approached the bar to get a drink and

asked Lonich to move. When Lonich continued to stand in the same place,

Davidoff said, “Move out of my way.” N.T. Restitution Hearing, 11/17/14, at

6. In response, Lonich, who was not in uniform, said, “I work here. Hold

on.” Id. Davidoff forcibly “nudged [Lonich] out of the way so he could get

through” and walked towards the bar. Id. Lonich signaled the bartender not

to serve Davidoff and told Davidoff that he was visibly intoxicated and would

not be served additional drinks and had to leave. Davidoff refused to leave

and smacked down Lonich’s hand when Lonich pointed at the door. Lonich

then “grabbed [Davidoff’s] hand and pushed it,” and the two men began to

engage in “a pushing shoving match.” Id. at 7. Lonich explained that he

and Davidoff grabbed each other simultaneously and began to push against

one another. While Lonich and Davidoff were pushing each other, one of the

other bouncers, Zachary Scogna, entered the fray and removed Davidoff.

That was the extent of Davidoff’s participation in the events leading to

Lonich’s knee injury.

      Lonich continued with his version of what occurred on August 18,

2013. An older unknown man pushed Lonich after Davidoff was grabbed by

Scogna. Lonich claimed that, at that point in time, Meenan placed his hands

around Lonich’s neck from behind, and Lonich removed his hands. Lonich

testified that Meenan then “bear hugged me from behind, lower toward my

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waist.”     Id. at 9.   Lonich next tried to remove Meenan’s hands from his

waist.     Lonich told the court that Mennan then jumped on his back, they

both fell to the ground, Meenan punched him, and, when Lonin attempted to

stand up, he felt “extreme pressure and pain around my knee.” Id. Lonin

sought medical treatment for the knee injury. Scogna also testified but said

that he did not view Lonich fall to the ground. Id. at 29.

         Lonich was the only witness at the restitution hearing who said that

the knee injury was sustained when Meenan jumped on him and pushed him

to the ground. Appellants, on the other hand, introduced into evidence two

prior inconsistent statements that Lonich made regarding the mechanism of

his injury. While Lonich was being treated at Mount Nittany Medical Center

immediately after the incident, he told the doctors that “he was in a fight at

work when he fell to the ground” and that “his knee twisted and he heard a

pop” while “he was at the bottom of a pile of people.” Id. Meenan’s Exhibit

1 at 3. State College Police Officer Christopher Tooley testified on behalf of

the Commonwealth. He admitted that he interviewed Lonich at the medical

center on August 18, 2013, and that Lonich said that he fell during the fight,

not that a bar patron jumped on him and pushed him to the ground. Id. at

50.

         Officer Tooley also interviewed Davidoff.   Davidoff told him that he

“was at the bar and for no reason at all, bouncers came, grabbed him by the

throat, took him into a back room.”       Id. at 43.   Davidoff said that four

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bouncers then kicked him and threw him into the parking lot. Meenan told

Officer Tooley that he was involved in some shoving and pushing but denied

that he punched or kicked anyone. Id. at 44.

         In addition to the two prior inconsistent statements refuting Lonich’s

testimony about how he sustained his knee injury, Appellants presented a

number of witnesses who contradicted his version of the initiation of the bar

fight.     Ryan Hilliard was an independent eyewitness who had not met

Davidoff, Meenan, or any member of their family before August 18, 2013.

He testified that he observed the following. Lonich gestured for Davidoff to

leave the bar. When Davidoff refused, Lonich started to physically remove

him.     At that point, Scogna went over to help Lonich, and they began to

shove Davidoff toward the back exit of the bar.         Members of Davidoff’s

family ran over and tried to stop the altercation.     Hilliard saw one of the

relatives being thrown to the ground.

         Another independent eyewitness unfamiliar with Appellants or their

family, Aran Kirvan, testified consistently with Hilliard.   He reported that

Lonich initiated the physical confrontation with Davidoff by grabbing him.

When Davidoff pushed back, Lonich tried to wrap his arms around Davidoff,

and Scogna came over and started throwing punches.            Kirvan said that

members of Appellants’ family tried to diffuse rather than escalate the

situation.




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      Meenan also presented the testimony of Tyler Higgins, the bartender

on duty at the time of the fight. Higgins directly refuted Lonich’s testimony

that Meenan jumped on his back and pushed him to the ground.          Higgins

said that Lonich was pushed against a wall and fell and that Meenan was

behind Lonich when Lonich was pushed against the wall so that Meenan

could not have pushed Lonich.      Higgins testified that Meenan “was not

involved” in any physical altercation that led to Lonich’s knee injury. Id. at

97. Higgins explained that he had pushed “Meenan up against the wall and

held him there” after Lonich fell from being pushed by the unknown

individual. Id. at 98.

      Two members of Appellants’ family testified consistently with what

Davidoff told Officer Tooley on the night of the incident: that Davidoff was

being attacked by four bouncers when other family members became

involved to break up the fight.     Meenan testified that he was going to

become involved in the situation after seeing Davidoff being attacked by the

four bouncers but was prevented from doing so by Higgins.

      At the end of this testimony, Judge Lunsford specifically ruled that he

was unable to determine how Lonich was injured. He observed that there

were “two totally different sides to this story,” one was that the bouncers

attacked Davidoff while members of Davidoff’s family were trying to cease

the assault and the other version, which was the one proffered solely by

Lonich, was that Davidoff started the physical confrontation by swatting

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away his hand.      Id. at 129.   Judge Lunsford observed that the people

involved in the altercation were “either being punched and are sober or

people who are drunk. So, the facts in this case are so diluted, and I’m not

sure that I can find appropriate facts” for the imposition of restitution. Id.

at 129. That jurist described the incident as “a scrum or a melee,” and said,

“And none of us were there . . . I don’t know what happened. I really

don’t know what happened.”         Id. at 129-30 (emphasis added).      Judge

Lunsford specifically noted that, according to all the witnesses, Davidoff was

completely uninvolved in the fight once Scogna pulled him away from

Lonich. Id. at 130. Judge Lunsford repeated, “The fact is, though, nothing

is clear in a bar at 1:45 in the morning, even those that are sober. And I

can’t imagine how you could produce any witness who could say

definitely what happened either way.         That’s why I’m not particularly

concerned about the facts, I’m looking at the law here.”          Id. at 137

(emphasis added).

      Once the Commonwealth was faced with this clear resolution of the

facts, it began to argue that Davidoff and Meenan were jointly and severally

liable as if they were joint tortfeasors and that Davidoff set in motion the

series of events that resulted in Lonich’s injuries so that he was liable for

restitution on that basis. The Commonwealth insisted that anyone involved

in the chain of events that led to Lonich’s injuries could be held responsible

for restitution. Appellants countered that the law did not permit restitution

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to be imposed based upon such a theory of causation. In response to the

parties’ respective positions, the court ordered them to submit briefs on the

law regarding causation in the restitution setting.

        For reasons that do not appear of record, Judge Lunsford was

thereafter removed from all criminal cases, with exceptions that are not

applicable herein, and the Honorable Jonathan D. Grine was assigned to

these matters. Judge Grine issued a ruling imposing restitution in the full

amount requested by the Commonwealth without a transcript of the

restitution hearing and without conducting another hearing.

        On appeal, Appellants claim, inter alia, that the doctrine of the law of

the case prevented the imposition of the restitution award.          Initially, I

observe that the Commonwealth’s position on the law at the restitution

hearing was legally erroneous.         A defendant can be ordered to pay

restitution only when the victim “suffered personal injury directly resulting

from the crime[.]” 18 Pa.C.S. § 1106.       As noted by the majority, the law

requires that there be a direct causal connection between the crime and the

loss.     Herein, the Commonwealth produced no evidence that linked

Davidoff’s actions to any injury suffered by Lonich, who said that his knee

was injured when Meenan pushed him.             The restitution award against

Davidoff should be stricken as a matter of law.

        With respect to Meenan, Judge Lundsford expressly and repeatedly

ruled at the restitution hearing that it was impossible to ascertain how

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Lonich sustained his knee injury.    He deferred ruling on the question of

restitution solely to obtain memorandum on the legal issue of causation.

Judge Lunsford was the jurist who heard the witnesses and could judge their

credibility. By stating that he could not determine how Lonich was injured,

Judge Lunsford necessarily concluded that Lonich did not testify truthfully at

the restitution hearing that his knee was injured when Meenan jumped on

him and pushed him to the ground.      Notably, Lonich was the only person

who said that Meenan’s actions injured his knee, and his testimony at the

restitution hearing was directly refuted by two statements that Lonich made

at the time of his injury. Hilliard, an independent witness and employee of

The Phyrst, said that Meenan did not push Lonich to the ground.

      The doctrine of the law of the case embodies “the concept that a court

involved in the later phases of a litigated matter should not reopen questions

decided by another judge of that same court or by a higher court in the

earlier phases of the matter.”   Commonwealth v. Starr, 664 A.2d 1326,

1331 (Pa. 1995).    The law of the case doctrine includes the precept that

“upon transfer of a matter between trial judges of coordinate jurisdiction,

the transferee trial court may not alter the resolution of a legal question

previously decided by the transferor trial court.” Id. In Starr, our Supreme

Court noted that it had “long recognized that judges of coordinate

jurisdiction sitting in the same case should not overrule each others'

decisions.” Id. (emphasis added).

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      Herein, Judge Lunsford resolved the question of whether Meenan

caused Lonich’s injuries.   He rendered a decision as to the precise issue

before him at the restitution hearing, stating that it was not possible to tell

how Lonich was injured.       After Judge Lunsford’s clear and unequivocal

factual rulings at the restitution hearing, the only matter to be resolved

herein was whether, without knowing how Lonich injured his knee,

restitution could be imposed under the law.

      Thus, Judge Grine, who imposed the restitution award, violated the

coordinate jurisdiction rule in this matter by failing to properly apply the law

to the facts, as found by the jurist who presided at the restitution hearing. I

am unpersuaded by the Commonwealth’s position that Judge Lunsford had

to issue a formal order or findings of fact in order for the law of the case

doctrine to apply. The doctrine pertains to the resolution of a question by a

jurist. The first issue that Judge Lunsford had to resolve at the restitution

hearing was whether any criminal act by Davidoff or Meenan caused Lonich’s

knee injury.   That jurist decided unequivocally that the mechanism of his

injury could not be determined.

      The doctrine of the law of the case can be ignored only “where there

has been an intervening change in the controlling law, a substantial change

in the facts or evidence giving rise to the dispute in the matter, or where the

prior holding was clearly erroneous and would create a manifest injustice if

followed.” Commonwealth v. Hernandez, 39 A.3d 406, 412 (Pa. 2012).

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There was no change in the law or facts and Judge Lunsford’s ruling is not a

manifest injustice.

      Hence, I would vacate the orders awarding restitution in these criminal

matters and remand for entry of orders denying restitution.




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