author: McGOVERN, J.,

text:
    Ritz v. Crozer Chester Medical Center

      C.P. of Delaware County,
    no. 94-111.

      Francis J. Curran Jr. and Linda Ferrara, for plaintiffs.

      Leah B. Perry and Kathleen D. Foley, for defendant.
    October 5, 1999
   McGOVERN, J.,

Plaintiffs, Lawrence L. Ritz and Donna M. Ritz, have appealed from the denial of their motion for post-trial relief in the form of a motion for new trial.

Plaintiff, Lawrence L. Ritz, came to the defendant hospital in Upland, Delaware County, Pennsylvania as a delivery driver on behalf of his employer, United Parcel Service, at approximately 9:30 a.m. on January 7,1994. An employee of UPS for 10 years and its regular delivery driver to defendant, Crozer Chester Medical Center, for four years, plaintiff began his deliveries that morning by unloading half of his packages at the rear of the hospital. (5/7/98 N.T. 128-29.) At 11:30 a.m., plaintiff proceeded to the professional office building, an office complex separate from the hospital facility, and parked in an area designated for deliveries. (5/7/98 N.T. 129-30.)

A severe ice storm which had developed during the early morning hours caused a thin layer of ice to form on roads and other surfaces in the area. (5/11/98 N.T. 63-65.) During his first three trips up the walkway connecting the parking area to the office building, plaintiff noticed that the incline was slippery and asked a security guard to throw cinders on the path to help improve his traction. (5/7/98 N.T. 206, 214.) On his fourth and final trip up the walkway, plaintiff loaded 210 pounds of computer paper onto his cart, but as he proceeded up the walkway, the wheels of the dolly became lodged in a gap in the pavement, causing plaintiff to lose his balance and fall. (5/7/98 N.T. 138.) Uninjured, plaintiff pulled himself up, reloaded the cart, and was proceeding further up the walkway when the wheels of the cart became wedged in another crack, causing plaintiff to fall a second time, landing on his tail bone. (5/7/98 N.T. 139; exhibits P-6, P-7, P-9 and P-10.) As a result of this second fall, plaintiff experienced pain in his lower back and later sought treatment at the emergency room of Fitzgerald Mercy Hospital. (5/7/98 N.T. 140-41.) The examining physician noted that plaintiff suffered from bruising and pain in his lower back, but had no numbness or weakness in his legs. (5/7/98 N.T. 220.)

The defendant counters that there were alternative entrances for plaintiff to use that day, that plaintiff was voluntarily taking a shortcut for his own convenience, that plaintiff was familiar with the condition of that particular walkway, and was himself negligent in its use. Defendant asserts, as well, that the injuries complained of had resolved, and that the long-term pain alleged by plaintiff is, in fact, merely a symptom of congenital spinal stenosis, or narrowing of the opening of the spinal canal.

After six months of physical therapy, plaintiff returned to work at UPS in August 1994. (5/7/98 N.T. 224.) He subsequently participated in a “work hardening program” under the observation of an occupational therapist employed by UPS from October 1994 until April 1995. (5/7/98 N.T. 224,227-28.) In June of 1995, plaintiff signed a general release and settlement agreement with UPS terminating his employment with the company. (5/7/98 N.T. 227.) Plaintiff later instituted this litigation, alleging that defendant hospital negligently failed to correct defects in the walkway’s broken concrete, remove snow and ice from the walkway, and maintain their premises in a safe manner. (Plaintiffs’ complaint, paragraph 10, sections c, m, n.) Defendant’s motion for summary judgment was denied on February 27, 1998, and the matter proceeded to trial.

On May 12, 1998, a jury found both the defendant, Crozer Chester Medical Center, and the plaintiff negligent, and that the negligence of both parties was a substantial factor in bringing about the harm to the plaintiff, Lawrence Ritz. The jury attributed 20 percent of the causal negligence to the defendant hospital and 80 percent thereof to the plaintiff, thus not reaching the question of damages. Plaintiffs’ motion for post-trial relief was denied, and plaintiffs submit the following concise statement of matters complained of on appeal:

“(1) The trial court... erred in allowing the defendant to inject into the case the workers’ compensation commutation which was accepted by plaintiff, Lawrence Ritz.

“(2) The trial court committed an error of law or abuse of discretion in denying plaintiffs’ motion for post-trial relief in admitting the testimony of defendant’s engineering expert, Serge Borichevslcy, in that:

“(a) An engineering expert was not necessary in this case as the condition of the walkway and cause of the accident were easily understood by the jurors;

“(b) The trial court erred in permitting Mr. Borichevsky to state his opinion that plaintiff’s falls were as a result of plaintiff’s own negligence and recklessness.” Plaintiffs’ issues on appeal are discussed under appropriate headings below.

ADMISSIBILITY OF TESTIMONY REGARDING WORKERS’ COMPENSATION “BUY-OUT” AGREEMENT

Plaintiffs contend that the court erred in allowing defense counsel to read into evidence and question plaintiff and several other witnesses regarding a “General release and settlement (or ‘buy-out’) agreement” signed in conjunction with the above-mentioned workers’ compensation commutation between plaintiff, Lawrence Ritz, and his employer, United Parcel Service. (Plaintiffs’ statement of matters complained of on appeal, paragraph 1.) Plaintiffs allege that allowing defendant to introduce the agreement into evidence and cross-examine the plaintiff and other witnesses regarding its terms, resulted in the jury’s being “bombarded” with the idea that plaintiff, Lawrence Ritz, received a sum of money from his employer. Plaintiffs contend that the court ignored its granting of plaintiffs’ motion in limine to preclude such evidence, and that the introduction of such is prohibited under Pennsylvania law and the collateral source rule. (Plaintiffs’ brief in support of motion for post-trial relief, p. 7.)

Plaintiffs correctly assert that it is an error of law for a jury in a personal injury action to be informed that a plaintiff received compensation for injuries from a third-party source, such as workers’ compensation. See e.g., Boudwin v. Yellow Cab Co., 410 Pa. 31, 33, 188 A.2d 259, 260 (1963); Lobalzo v. Varoli, 409 Pa. 15, 17, 185 A.2d 557, 559 (1962); Boscia v. Massaro, 365 Pa. Super. 271, 276, 529 A.2d 504, 506 (1987). Referred to as the collateral source rule, this principle bars the introduction of evidence such as workers’ compensation benefits in order to assure that a jury will not be led to believe that a plaintiff, by bringing suit in addition to receiving compensation from a third-party collateral source, is seeking a double recovery. Moorhead v. Crozer Chester Medical Center, 705 A.2d 452, 455 (Pa. Super. 1997); Johnson v. Beane, 541 Pa. 449, 456, 664 A.2d 96, 100 (1995); Beechwoods Flying Service Inc. v. Al Hamilton Contracting Corp., 504 Pa. 618, 623, 476 A.2d 350, 352 (1984). However, the rule does not act as an absolute bar to evidence introduced at trial regarding third-party compensation agreements.

It is well recognized that the mere mention of a collateral source, such as insurance, during trial does not constitute an error of law; rather, the complaining party must prove prejudice as a result of such testimony. Havasy v. Resnick, 415 Pa. Super. 480, 497, 609 A.2d 1326, 1334 (1992); Phillips v. Schoenberger, 369 Pa. Super. 52, 59, 534 A.2d 1075, 1078 (1987); Pushnik v. Winky’s Drive In Restaurants Inc., 242 Pa. Super. 323, 335, 363 A.2d 1291, 1297 (1976). Furthermore, Pennsylvania courts have recognized that admitting evidence of a collateral source is permissible where the evidence is relevant to a contested issue in a case, here being the plaintiff’s readiness and willingness to work, and where the purpose of the evidence is not to diminish plaintiff’s award of damages. Beechwoods Flying Service Inc. v. Al Hamilton Contracting Corp., supra; Sperry v. White Star Lines Inc., 315 Pa. 361, 172 A. 646 (1934); Rice v. Shenk, 293 Pa. 524, 143 A. 231 (1928).

The court respectfully submits that it did not err in allowing counsel for the defendant to question any witness regarding noneconomic aspects of the “buy-out” agreement since this information was relevant to a contested issue in the case, and did not indicate to the jury that plaintiffs were seeking a double recovery. There is no evidence of record that the court allowed defendant to present evidence that plaintiff was either compensated by his workers’ compensation carrier or that he was paid the $90,000 to compensate him for future wages lost, as plaintiffs allege. Plaintiffs, in instituting this litigation against defendant hospital, claimed that due to plaintiff, Lawrence Ritz’s, injuries, he was forced to terminate his employment with UPS, and thus suffered a decreased earning capacity. (Plaintiffs’ brief in support of their motion for post-trial relief, p. 8.) Plaintiff testified that he left UPS involuntarily because his employer informed him he could no longer perform the required duties. (5/7/98 N.T. 158.) To counter these contentions, defense counsel inquired on cross-examination about the terms of the agreement which ended plaintiff’s employment:

“Q. When you terminated your employment with United Parcel Service, that was a voluntary decision on your part. Isn’t that right?

“A. No.

“Q. Do you remember entering into an agreement with UPS for a buyout so that you could pursue an active and independent life and that it was in your best interests?

“A. That’s what they said. Yes.

“Q. Well, Mr. Ritz, you signed a piece of paper stipulating to that. Isn’t that right?

“A. That’s right.” (5/7/98 N.T. 216.)

No objection was registered by plaintiff to the eliciting of this testimony. Defense counsel then questioned plaintiff regarding the voluntariness of the termination agreement as adduced by plaintiff’s signature:

“Q. ‘Employee further acknowledges and agrees that his employment with UPS has been permanently and irrevocably ended and he will not seek reemployment with UPS.’ Do you see that?

“A. Yes, I do.

“Q. And that is your signature?

“A. Yes, it is ...

“Q. And as a result of signing that, you received money that you were planning to invest and that that was an agreement that you voluntarily entered into because you were going to invest the money and that would help you to take care of your family and prevent undue hardship. Isn’t that correct?

“A. I signed an agreement with UPS as a buyout. It’s a formula they come up with____” (5/7/98 N.T. 217-18.)

At this point in plaintiff’s testimony, his attorney raised an objection, “just for the record,” and the objection was overruled. (5/7/98 N.T. 218.) Plaintiff continued to answer the question without further questioning by the defense and without objection from his own counsel:

“A.... They buy you out.

“Q. But my question iust was and ...

“A. Okay.

“Q. I think you answered it, you really don’t need to go any further.” (5/7/98 N.T. 217-18.)

It is clear from the foregoing portions of cross-examination testimony of the plaintiff, that counsel for the defendant was careful not to venture beyond the terms of the agreement relevant to the nature of plaintiff’s leaving his employment with UPS, and quickly ended the line of questioning when it appeared the plaintiff might reveal prejudicial information, such as the amount of the settlement involved in the agreement. Upon further questioning by the defense, plaintiff admitted, without objection from counsel, that although he was maintaining before this court that he had been forced into signing the agreement, he had claimed before an officer of the administrative tribunal hearing his employment case that the “buy-out” agreement with UPS had been entered into voluntarily. (5/7/98 N.T. 218-19.) It is thus clear from the record that plaintiff’s own replies to the foregoing line of questioning in no way implied to the jury that plaintiff sought a double recovery, or, as plaintiffs contend, allowed the jury to infer that plaintiffs were “set for life” as a result of accepting the “buy-out” from UPS. Rather, such questioning was intended to challenge the credibility of plaintiff’s assertions that he had left his employment with UPS involuntarily.

Plaintiff complains that the admission of testimony concerning the “buy-out” agreement warrants a new trial because alleged repeated introduction of such evidence tainted the jury’s perception of the plaintiff, and “the jury’s perception of plaintiff’s credibility was of critical importance in this case.” (Plaintiffs’ brief in support of their motion for post-trial relief, p. 7.) However, plaintiff testified on cross-examination that he had “lost” his job at UPS. (5/7/98 N.T. 190.) Plaintiff further testified that his decision to terminate his employment was not voluntary, while at the same time admitting, without objection, that he had stipulated to having entered into the “buy-out” agreement with UPS so that he “could pursue an active and independent life” and that it was in his own “best interests.” (5/7/98 N.T. 216.) A witness may be challenged on cross-examination regarding his or her own prior inconsistent statement and the resulting testimony was, therefore, properly admitted. Wallis v. SEPTA, 723 A.2d 267, 271 (Pa. Commw. 1999).

Defense counsel also elicited brief testimony regarding the “buy-out” agreement during lengthy cross-examinations of plaintiff’s treating physician, Dr. William C. Murphy; during the videotape testimony of plaintiffs’ vocational expert, Ronald Kaiser Ph.D.; and on redirect examination of defendant’s own expert rehabilitation counselor, Irene Mendelsohn. (5/8/98 N.T. 158 (Murphy); 228 (Kaiser); 5/11/98 N.T. 54-55 (Mendelsohn).) Defendant’s short line of questioning involving each of these witnesses was restricted solely to their knowledge of plaintiff’s agreement to voluntarily terminate his employment with UPS as it compared with allegations of plaintiff that causal negligence of defendant here caused decreased earning capacity, financial problems, or reluctance to leave his employment at UPS. Never was there a mention of workers’ compensation benefits or disclosure of the amount granted to plaintiff as a result of the “buyout” in his testimony.

The limited questioning engaged in by the defendant with plaintiff, Kaiser, Murphy and Mendelsohn remained well within the permissible limits of the preclusion order at trial. Moreover, plaintiffs themselves asked Ms. Mendelsohn to reiterate a statement in her report indicating that plaintiff had at first rejected the “buy-out” agreement before actually entering into it after refusing a supervisory position and other options offered by UPS. (5/11/98 N.T. 51.) Plaintiffs’ subsequent objection to defense questioning of Mendelsohn as to her understanding that plaintiff had ultimately accepted the “buy-out” was, therefore, properly overruled. (5/11/98 N.T. 55-58.) Plaintiffs should not be heard to complain of defense references to evidence they themselves had placed into the record. Finally, it is difficult to discern how testimony found on six pages of a trial transcript which encompassed approximately 800 pages of testimony could in any way have “bombarded” the jury with the negative impression contended.

The threshold task for a trial judge in determining the admissibility of evidence is whether the evidence is relevant. Henery v. Shadle, 443 Pa. Super. 331, 340, 661 A.2d 439, 444 (1995), appeal denied, 542 Pa. 670, 668 A.2d 1133 (1995); General Equipment Manufacturers v. Westfield Insurance Co., 430 Pa. Super. 526, 544, 635 A.2d 173, 182 (1993), appeal denied, 537 Pa. 663, 644 A.2d 1200 (1994); Whyte v. Robinson, 421 Pa. Super. 33, 38, 617 A.2d 380, 383 (1992). Pennsylvania courts have considered evidence relevant when it helps to establish a fact in issue at trial, or make that fact more or less probable. Burrell Construction & Supply Co. v. Straub, 440 Pa. Super. 596, 605, 656 A.2d 529, 534 (1995); Whistler Sportswear Inc. v. Rullo, 289 Pa. Super. 230, 243, 433 A.2d 40, 47 (1981). In the case at bar, information concerning plaintiff, Lawrence Ritz’s, “buyout” agreement with UPS (and not the amount thereof) was relevant and thus properly admitted to settle a contested issue in the case, that is, whether plaintiff terminated his employment with UPS involuntarily, or whether he had voluntarily accepted a “buy-out” from the company so that he could pursue an independent life and further his own best interests. It would not have been lost on the jury that before plaintiff left his employment with United Parcel Service, he had refused their offer of a supervisory position and other employment options.

Moreover, the evidence of the “buy-out” agreement in no way prejudiced the plaintiffs in their case against the defendant hospital. On the liability issue, a jury found plaintiff 80 percent negligent for causing his own injuries. Having found the plaintiff’s contributory negligence greater than the negligence of the defendant, the jury never reached the question of damages. An evidentiary ruling that does not affect the verdict will not provide a basis for disturbing a jury’s judgment. Hart v. W.H. Stewart Inc., 523 Pa. 13, 16, 564 A.2d 1250, 1252 (1989). Therefore, it is respectfully submitted that this court properly admitted the cited testimony regarding the “buyout” agreement to be admitted at trial.

ADMISSIBILITY OF TESTIMONY OF ENGINEERING EXPERT, SERGE BORICHEVSKY

Plaintiffs contend that the court erred in permitting the defendant’s engineering expert, Serge Borichevsky, to testify as to the condition of the walkway and the cause of the fall, and to offer his opinion that the fall was a result of plaintiff’s own negligence and recklessness. (Plaintiffs’ statement of matters complained of on appeal, paragraph 2, sections a and b.) Plaintiffs believe that the nature of the accident was one which jurors could easily comprehend, and, as such, did not warrant an expert opinion.

It must first be noted that an in limine motion is a motion or petition submitted to the court in a pending matter either pretrial or during trial whereby exclusion is sought of anticipated prejudicial evidence, keeping extraneous issues out of the underlying proceeding, precluding reference to prejudicial matters, or preventing encumbering the record with immaterial matter. PennDOT v. Pikur Enterprises Inc., 142 Pa. Commw. 114, 596 A.2d 1253 (1991). “A trial court may or may not in its discretion, entertain such in limine motions and the denial thereof cannot in and of itself constitute reversible error since those matters seeking to be precluded have not been presented to the fact-finder and may never reach the fact-finder.” PennDOT v. Pikur Enterprises Inc., supra, 142 Pa. Commw. at 127, 596 A.2d at 1259, citing 75 Am.Jur.2d Trial §165 (1974); 60 C J.S. Motions and Orders §2 (1969); Black’s Law Dictionary 787 (6th Ed. 1991); 21A Words and Phrases, “In Limine” (1991). The transcript does not indicate that the conference at which plaintiffs’ motion was denied took place at the time of Mr. Borichevsky’s testimony, but it does reflect that plaintiffs raised no objection to defendant’s motion to allow Borichevsky to testify as an expert witness. (5/11/98 N.T. 158, 168.) If this issue should not be deemed waived for that reason, regardless of the timing of plaintiffs’ in limine motion, Mr. Borichevsky’s testimony was properly admitted under law.

It is true, as plaintiffs contend, that expert testimony is deemed unnecessary at trial for matters of common knowledge that the jury is capable of comprehending without assistance. Reardon v. Meehan, 424 Pa. 460, 465, 227 A.2d 667, 670 (1967); Collins v. Zediker, 421 Pa. 52, 53, 218 A.2d 776, 111 (1966); Burton v. The Horn & Hardart Baking Co., 371 Pa. 60, 64, 88 A.2d 873, 875 (1952). Expert testimony has been held to be inadmissible where the issue relates solely to the slipperiness of a surface fallen upon by an individual. Burton v. The Horn & Hardart Baking Co., supra. Conversely, expert testimony is admissible when it involves explanations and inferences not within ordinary training and knowledge of the jury. Kubit v. Russ, 287 Pa. Super. 28, 35, 429 A.2d 703, 706 (1981); Auerbach v. Philadelphia Transportation Co., 421 Pa. 594, 604, 221 A.2d 163, 171 (1963); Daniels v. County of Allegheny, 145 F. Supp. 358 (W.D. Pa. 1956). The record reflects that the testimony offered by Mr. Borichevsky regarding engineering and construction principles for the walkway and the mechanics causing plaintiff to fall while pulling a hand truck loaded with some 210 pounds of computer paper up an icy incline, after making three prior trips carrying lighter loads without incident, would have exceeded a layperson’s understanding, and, as such, was properly presented to the jury by an expert in the field.

The Pennsylvania Supreme Court has held that expert testimony is necessary to establish negligent practice in any profession. Powell v. Risser, 375 Pa. 60, 65, 99 A.2d 454, 456 (1953). The record indicates, and plaintiffs do not contest, that Mr. Borichevsky, a civil engineer, was well qualified to speak to liability issues in the case so as to establish the contributory negligence of the plaintiff. In evaluating whether the condition of the walkway posed a tripping hazard to a professional deliveryman pulling a heavy load up an icy incline, Mr. Borichevsky proffered the following explanation to the jury:

“A. Well, it’s the weight, 200 pounds of computer paper or mushrooms or Hershey bars, it’s still 200 pounds. The amount of force it takes to pull a cart is dependent on two things, the slope of the — of the surface that you are pulling it up. If you’re pulling it uphill, the steeper the surface the more weight you have to pull. If it’s level, if it’s downhill, then it’s less, in fact, it pushes you because you’re basically dealing with gravity. The other thing is the friction in the wheels as the wheels turn. If you don’t have the wheels, for example, greased nicely and there’s a lot of rust in them, they don’t turn very well. It takes more force to pull up.

“So it’s two things, it’s the weight of the cart... the slope that you’re pulling it up and the friction in the wheels. Friction in these wheels is very low ... it’s going to take 14 pounds of pull because most of the load is sitting on the wheels ... So it’s 14 pounds for the load and two pounds approximately for the rolling friction so that’s 16 pounds. You’ve got to counteract 16 pounds of pull up the hill.” (5/11/98 N.T. 190-91.)

Elaborating on these scientific principles of matter and motion, Mr. Borichevsky described to the jury the mechanics involved in plaintiff, Lawrence Ritz’s, final excursion up the sloped walkway on January 7, 1994.

“He had approximately, depending on the coefficient of friction of the ice . . . between six and 20 pounds of traction in his feet and he’s pulling 16 pounds of load. So he’s — if, at any time, his traction between his feet and the ice is below 16 pounds, he’s going to fall. It’s just like if you ... hitched up a car ... at the bottom of the sidewalk and tried to pull the car up the sidewalk, you wouldn’t be able to do that. You would slip ... even if it was bare concrete. Why? Because the force that you need to pull the car up the sidewalk, you can’t build that up between your feet and the pavement. And that’s what happened here, he didn’t have enough force.” (5/11/98 N.T. 191-92.)

Plaintiffs suggest that the jury could determine defendant’s negligence merely from the condition of the sidewalk. Such has been held to be generally so except where additional factors contributing to a fall on a slippery surface might involve knowledge outside of the ken of the ordinary layperson. Miller v. Philadelphia, 345 Pa. 1, 25 A.2d 185 (1942); Burton v. The Horn & Hardart Baking Co., supra; Daniels v. County of Allegheny, supra. It is also trae that the presence of ice on a property does not automatically establish the owner’s negligence. Jacob v. Philadelphia, 333 Pa. 584, 5 A.2d 176 (1939). The Pennsylvania Supreme Court has recognized that an expert witness may attest to a relevant fact not generally known, but known to the expert because of special training and knowledge. Reardon v. Meehan, 424 Pa. 460, 465, 227 A.2d 667, 670 (1967). It is, therefore, respectfully suggested that Mr. Borichevsky could best explain the principles of physics, as well as the mechanics of plaintiff’s fall under the unique circumstances presented here, and that those circumstances did not present an experience common to the average juror.

It is the law of this Commonwealth that the question of admissibility of expert testimony is well within the discretion of the trial court. Lebesco v. SEPTA, 251 Pa. Super. 415, 419, 380 A.2d 848, 850 (1977); Colston v. SEPTA, 679 A.2d 299,303 (Pa. Commw. 1996); Palmer v. Lapp, 392 Pa. Super. 21, 27, 527 A.2d 12, 15 (1990). It is respectfully submitted that the court did not abuse its discretion in allowing the expert testimony of Mr. Borichevsky. Rather, the court properly admitted this testimony to aid the jury in fully understanding the matter at hand.

Plaintiffs further contend that they should be granted relief because the court allegedly erred in permitting Mr. Borichevsky to offer an opinion going to an ultimate issue in the case. (Plaintiffs’ statement of matters complained of on appeal, paragraph 2, section b.) Plaintiffs’ allegation, however, is without merit. Pennsylvania courts hold that an expert may offer an opinion relating to the ultimate issue in the case. First Methodist Episcopal Church v. Bangor Gas Co., 388 Pa. 115, 130 A.2d 517 (1957); Christiansen v. Silfies, 446 Pa. Super. 464, 475, 667 A.2d 396, 404 (1995). Indeed, the new Pennsylvania Rules of Evidence, which became effective some five months after the within trial, state that “[tjestimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Pa.R.E. 704. The comment to the rule reiterates well-settled authority in this jurisdiction in pronouncing that “Pennsylvania law allows expert opinion testimony on the ultimate issue,” citing Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Cooper v. Metropolitan Life Insurance Co., 323 Pa. 295, 186 A. 125 (1936).

Plaintiffs contend that by giving his opinion on the cause of plaintiff’s fall, Mr. Borichevsky usurped the function of the jury. Plaintiffs specifically take issue with the following testimony:

“A. ... I believe (the fall was a result of) Mr. Ritz being careless and reckless... [Fjirst of all he was aware of the condition of the sidewalk that he was walking on and its effects on his loaded hand truck that he was pulling .. . Second of all, he was aware that the ice was slippery. He had difficulty transversing it. . . . The next reason is that he knew there were alternative ways to go to get to the same place.” (5/11/98 N.T 173-74.)

The Pennsylvania Supreme Court held in Commonwealth v. Daniels, supra, that, “[T]he witness, in expressing his opinion, is not attempting to usurp the jury’s function; nor could he . . . because the jury may still reject his opinion.” 480 Pa. at 352,390 A.2d at 179. In the case at bar, the expert witness, Mr. Borichevsky, properly offered an opinion subject to evaluation by the jury as to plaintiff’s contributory negligence. Furthermore, the witness, contrary to plaintiffs’ assertion, did not challenge plaintiff, Lawrence Ritz’s, credibility. Kozak v. Struth, 515 Pa. 554, 531 A.2d 420 (1987). Rather, he properly offered an expert opinion based on facts readily available in the record. Further, while the court, as noted in the transcript above cited, is of the opinion that Mr. Borichevsky was simply stating the reasons for the opinion he had already expressed, it is recognized that the cold language in the transcript might suggest that such involved the ultimate issue in this case. The trial court, however, instructed this jury before the trial began, and before the jury initiated its deliberations, that it was the sole responsibility upon the jury to determine the facts and circumstances in this case based upon the evidence as they received it. The jury was further instructed at the conclusion of the trial that they were not bound to accept any expert testimony, but rather were to evaluate that testimony in light of the reasons expressed by the expert and make a determination as to whether or not those reasons were supported by the evidence in this matter that they found to be credible and worthy of some weight. (5/12/98 N.T. 85-91.) There is no hint of unfair prejudice to the plaintiff from the engineer’s opinion and, further, the record amply supports the jury’s conclusion independently of the questioned testimony.

Pennsylvania courts have commonly held that the discretion to admit or exclude an expert’s opinion on an ultimate issue in a case is vested with the trial judge. Commonwealth v. Barnhart, 722 A.2d 1093, 1097 (Pa. Super. 1998). A trial court will not be reversed in ruling upon the admissibility of testimony to the ultimate issue in the case unless the court clearly abused its discretion and actual prejudice occurred. See Childers v. Power Line Equipment Rentals Inc., 452 Pa. Super. 94, 112, 681 A.2d 201, 210 (1996); Swartz v. General Electric Co., 327 Pa. Super. 58, 71, 474 A.2d 1172, 1178 (1984). It is the belief of the court that Mr. Borichevsky was properly permitted to offer his expert opinion based on facts and not conjecture in order to aid the jury in fully assessing the evidence before them. The plaintiffs, having already presented their case for negligence, having raised no objection to the admission of Mr. Borichevsky as an expert witness, and having taken advantage of their opportunity to cross-examine him, cannot now complain of prejudice from such testimony advanced by the defense. Therefore, plaintiffs’ request for a new trial on that basis was properly denied.

CONCLUSION

Plaintiffs’ contentions that the court erred in both the admission of testimony regarding the “buy-out” agreement and the admission of testimony offered by plaintiffs’ engineering expert going to plaintiff’s contributory negligence are unfounded and unsupported by the law of this Commonwealth. Allowing defense counsel to question plaintiff and other witnesses regarding the “buyout” agreement does not constitute an error of law since this information was relevant to a contested issue in the case, did not indicate to the jury that plaintiffs were seeking double recovery, and was put before the jury by plaintiffs themselves. Furthermore, the testimony offered by Mr. Borichevsky regarding engineering and construction principles for the walkway and the scientific mechanics of plaintiff’s fall under the instant circumstances, clearly exceeded a layperson’s experience and, it is respectfully submitted, was properly allowed as relevant and material to the issues of causation and contributory negligence.

A trial court’s ruling on a motion for new trial will not be reversed absent an error of law controlling the outcome of the case or an abuse of discretion where the ruling turns on the weight of the evidence. United States Fidelity and Guaranty Co. v. Royer Garden Center & Greenhouse Inc., 143 Pa. Commw. 31, 598 A.2d 583 (1991). Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of discretion. Henry v. McCrudden, 133 Pa. Commw. 231, 575 A.2d 666 (1990), appeal denied, 526 Pa. 651, 585 A.2d 470 (1990); Catina v. Maree, 272 Pa. Super. 247, 415 A.2d 413 (1979); Juniata Foods Inc. v. Mifflin County Development Authority, 87 Pa. Commw. 127, 486 A.2d 1035 (1985). A wide degree of latitude in the determination of whether evidence should be admitted is vested in the trial court. Lynch v. McStome and Lincoln Plaza Associates, 378 Pa. Super. 430, 548 A.2d 1276 (1988). It is respectfully suggested that the testimony challenged by the plaintiffs was properly allowed into evidence, and that the decisions to do so do not constitute error of law or abuse of discretion so as to warrant a new trial.

For all of the foregoing reasons, it is respectfully submitted that plaintiffs’ post-trial motion was appropriately denied.

      . It was contested at trial whether the walkway used by plaintiff to access the office complex from the parking area was designated for deliveries. Plaintiff contends he was instructed to use the walkway, while defendant insisted that the route taken by plaintiff was not a designated delivery entrance. (5/7/98 N.T. 149; 5/11/98 N.T. 128.)

      . According to plaintiffs’ brief in support of their motion for post-trial relief (p. 5), plaintiff filed for and received workers’ compensation benefits which were commuted to the lump sum of $90,000. There is no dispute whatsoever that the amount of the commutation was never introduced at trial or that the “buy-out” agreement was never read in its entirety to nor seen by the jury.

      . Plaintiffs say that their motion in limine to preclude the introduction at trial of any evidence that plaintiff was compensated by his workers’ compensation carrier or paid $90,000 for future wages lost was granted by this court. This information is according to plaintiffs’ brief in support of their post-trial motion. Plaintiffs neither sought nor provided recapitulation of any unrecorded sidebar or robing room discussion during which this alleged ruling may have issued, and requested augmentation of the printed transcript only to include plaintiffs having filed a motion in limine to preclude the expert testimony of Serge Borichevsky P.E. and the court’s denial of that motion, pursuant to Pennsylvania Rule of Appellate Procedure 1926. (See plaintiffs’ petition to conform record of trial, available in the record.) Moreover, there is no mention of the precluded testimony in the transcript. Recorded, however, at the close of testimony, is plaintiffs’ request for a jury instruction asking the jury to disregard references to the buy-out agreement elicited by the defense. (5/11/98 N.T. 255-57.) That request was denied with the court’s ruling that defense references to the “buyout” agreement went to the issue of plaintiff’s “desire, willingness and motivation to work. [It] doesn’t have anything to do with the amounts or the amounts he may have been paid from other sources.” (5/11/98 N.T. 256-57.) Plaintiffs then moved for a mistrial, and that motion too was denied. (5/11/98 N.T. 257.) Plaintiffs themselves went on to mention in their closing argument the “buy-out” agreement in terms of plaintiffs’ current bankruptcy proceedings and mortgage foreclosure, raising an inference that any amount in question was insufficient to prevent such calamities. (5/12/98 N.T. 32.) Plaintiffs took no exception to the instruction given as related to the evidence they contend was erroneously admitted, and make no claim on appeal regarding the denial of the request for such an instruction nor the motion for mistrial. This issue should, in fact, be deemed waived because it was only the plaintiffs who brought to the jury’s attention the suggestion as to any putative monetary value of the “buy-out” agreement.

      . During deliberations, the jury asked to view a copy of the “buyout” agreement. However, this request was denied and the jury was properly instructed that the evidence of a “buy-out” agreement was introduced only “to shed some light on the plaintiff’s motivations for continuing to work, or for finding work... not the terms of the ‘buyout.’ ” (5/12/98 N.T. 130.)

      . In a response to the defendant’s reply brief in this matter, plaintiff asserted for the first time that his statement, that he was told by UPS that he could no longer perform his job, is not inconsistent with the statement that he voluntarily entered into the agreement to commute his benefits. (Plaintiffs’ reply brief to defendant’s brief in opposition to plaintiffs’ motion for post-trial relief, p. 4.) However, the hereinabove-cited testimony from plaintiff that he had lost and was forced to leave this job is indeed inconsistent with his admission to signing the agreement from a desire to pursue a more active and independent life, and that doing so was in his best interests. (5/7/98 N.T. 190, 216.) It is here noted that plaintiff raised no objection to the eliciting of the latter admissions from plaintiff at trial, and any contention as to improper allowance of such testimony by the court should be deemed waived. Pennsylvania Rule of Civil Procedure 227.1(b)(1); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Plaintiff’s assertions that UPS allegedly forced him to sign the “buyout” contract are equally inconsistent with his admitted statement to the administrative tribunal that he had entered into the agreement voluntarily. (5/7/98 N.T. 216-19.) The jury was left to determine credibility.

      . The court, during an untranscribed robing room conference, denied plaintiffs’ motion in limine to preclude the expert testimony of Serge Borichevsky. On November 25,1998, the court ordered that the trial transcript be supplemented to reflect the denial of the motion pursuant to plaintiffs’ petition to conform the record.


source: Caselaw Access Project

author: CUNNINGHAM III, Member,

license: Public Domain

text:
    In re Anonymous No. 150 D.B. 97
    Disciplinary Board Docket no. 150 D.B. 97.
    March 17, 1999
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

CUNNINGHAM III, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On November 25, 1997, a petition for discipline was filed by Office of Disciplinary Counsel against respondent, [ ]. The petition alleged that respondent neglected client matters, commingled client funds, failed to communicate with clients, and'failed to report information about his escrow accounts to the office of attorney registration. Respondent filed a response to the petition on December 19,1997.

A disciplinary hearing was held on April 22, 1998 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Member, [ ], Esquire. Respondent represented himself. Petitioner was represented by [ ], Esquire.

The Hearing Committee filed a report on August 24, 1998 and recommended a period of suspension ranging from six months to one year. Petitioner filed a brief on exceptions on September 14, 1998 and contended that the appropriate discipline was a suspension of not less than one year and one day. Respondent filed a brief in response to exceptions on October 9,1998 and contended that probation or a suspension in the range suggested by the Hearing Committee was appropriate.

This matter was adjudicated by the board at the meeting of November 18,4998.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent was bom in 1952 and was admitted to practice law in the Commonwealth of Pennsylvania in 1976.

(3) Respondent’s principal office for the practice of law is located at [ ]. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(4) Respondent is currently on active status in this Commonwealth.

Charge I

(5)Respondent filed registration forms with the disciplinary office for attorney registration for the years 1991-1992 and 1992-1993.

(a) On the 1991-1992 form, under the question requesting the name of each financial institution in this Commonwealth in which the attorney on May 1 of the current year or at any time during the preceding 12 months held funds and other property of clients, respondent did not provide an answer.

(b) On the 1992-1993 form, under the question requesting the name of each financial institution in this Commonwealth in which the attorney on May 1 of the current year or at any time during the preceding 12 months held funds and other property of clients, respondent answered “none.”

(6) Respondent filed an application for resumption of active status for the year 1993-1994.

(a) Under the question requesting the name of each financial institution in this Commonwealth in which the attorney on May 1 of the current year or at any time during the preceding 12 months held funds and other property of clients, respondent answered “none.”

(7) During this time, 1991-1993, respondent maintained an escrow account at [A] Bank captioned [respondent], Esquire, client’s trust account, account number [ ]•

(a) [A] Bank became [B] Bank and respondent maintained the same account number at [B] Bank captioned [respondent], Esquire, clients escrow account.

(8) Respondent filed a registration form for 1996-1997 in which, under the question requesting the name of each financial institution in this Commonwealth in which the attorney on May 1 of the current year or at any time during the preceding 12 months held funds and other property of clients, respondent checked the box “none.” On this form respondent certified that:

(a) he was “familiar and in compliance with Rule 1.15 of the Pennsylvania Rules of Professional Conduct regarding the handling of funds and other property of clients and others;”

(b) all fiduciary accounts that he maintained in Pennsylvania were in financial institutions that have been approved by the Supreme Court of Pennsylvania for the maintenance of such accounts pursuant to Pa.R.D.E. 221; and

(c) information provided on the form is true,.... “If any statements are false, I realize I am subject to discipline by the Supreme Court.”

(9) At that time, respondent had a money market account at [C] captioned [respondent], Esquire, [ ] account number [ ].

Charge II: The [D] Matter

(10) In or around August 1989, [D] retained respondent to represent her in all claims arising from a personal injury sustained in an accident while a passenger in a van owned by [E].

(11) On or around January 20,1990, [D] decedent died intestate, leaving a brother, [F], as sole intestate heir.

(12) In or around August 1991, respondent contacted [F] by telephone and requested that he meet with respondent at his office at which time respondent represented to [F] that decedent’s claims against [E] had been settled for $7,500.

(a) [F] retained respondent to complete the settlement of the matter.

(b) Respondent told [F] that no settlement proceeds could be distributed until the decedent’s estate was probated.

(c) Respondent requested that [F] who resided outside of the Commonwealth, renounce any right to administer to the estate in favor of one of respondent’s office staff.

(d) [F] agreed to renounce any right to administer the decedent’s estate.

(e) Respondent told [F] he would receive distribution of the settlement proceeds in April 1992.

(13) In or around August 1991, respondent filed a petition for grant of letters of administration and a renunciation executed by [F].

(a) Respondent requested that letters of administration be issued to his employee, [G].

(b) He identified himself as attorney to the estate.

(14) In or around August 1991, the [ ] County Register of Wills issued letters of administration to [G] at no. [ ] of 1991.

(15) Thereafter, respondent:

(a) failed to keep [F] informed about the status of the matter; and

(b) failed to complete estate administration.

(16) Between April 1992, and September 1992, [F] contacted respondent on several occasions to inquire about the settlement money. [F] never spoke to respondent, only to his staff.

(17) In or around October 1992, respondent’s office telephone had been disconnected.

(18) By letter dated November 18, 1994, sent by certified mail, return receipt requested, to respondent’s office at [ ], [F] requested that respondent advise him of the status of the settlement, but the letter was returned to [F] stamped “forwarding order expired.”

(19) Respondent failed to advise [F] of his change of office address and telephone number.

(20) Sometime in March 1995, respondent telephoned [F] and advised him that he could not find the file and that he would get back to him, but he failed to contact [F] again.

(21) By certified letter, dated May 2,1995, which was received by respondent’s agent, [F] requested information regarding the estate of [D]; a full accounting of all funds received by respondent on behalf of the estate; and the name and mailing address of counsel representing [E] Company.

(22) Respondent failed to respond to this letter or to render an accounting.

(23) After receiving a copy of the D.B.-7 letter request for statement of respondent’s position from petitioner, respondent made distribution to [F] by check dated March 16,1996 in the amount of $4,158.50, issued from a money market account with [C].

Charge III: The [H] Matter

(24) In or around December 1989, [H] retained respondent to represent her in all claims arising out of an accident in which she suffered personal injury and property damage when her automobile was hit by a [I] bus.

(25) On or around September 12, 1991, respondent filed in [ ] County Court of Common Pleas, a complaint captioned [H] v. [I], docketed at September term, 1991, no. [ ].

(26) By letter dated December 2, 1991, respondent’s paralegal, [J] requested that [H] contact respondent’s office to set up a meeting to discuss her lawsuit.

(a) From this date until December 1992, there was no further communication between respondent and [H].

(b) Sometime in February or March 1993, respondent participated in the taking of [H’s] deposition.

(c) After the taking of that deposition, respondent failed to communicate with [H] and to take any action to prosecute her claim.

(27) The court made two requests of respondent to file a civil case information form in the above-captioned case.

(a) Respondent received notice of these requests which were sent by first-class mail.

(b) Respondent failed to respond to these requests.

(c) By order dated October 27, 1993, the Honorable [K] issued a rule to show cause why a judgment of non pros should not be entered due to respondent not responding to the court’s two requests of him to file a civil case information form in the above-captioned case.

(d) The court sent a copy of the order to respondent by first-class mail.

(e) Notice of that order was published in the [L] on November 1, 1993.

(f) Respondent failed to respond to the rule to show cause.

(28) By order dated December 7, 1993, Judge [K] entered a judgment of non pros due to respondent’s failure to file a civil case information form.

(a) The prothonotary sent respondent a copy of the order by first-class mail.

(b) Respondent failed to advise [H] that the case was non pressed.

(29) In or around July 1994, [H] telephoned respondent’s office, and respondent told her that he would return her call the next week.

(a) [H] telephoned respondent’s office several times over the next several months and respondent failed to tell her that her case had been non pressed.

(30) By certified letter dated August 4, 1994, which was received by respondent on August 9, 1994, [H] advised him that she had made repeated phone calls to his office seeking the status of the lawsuit.

(a) Respondent failed to respond to the certified letter.

(b) In or around September 1994, [H] telephoned respondent’s office to inquire about the status of her case and respondent advised her that he would call her back the following week.

(c) Respondent failed to return the phone call as promised.

(d) After March 1995, [H] telephoned respondent’s office several times and left messages on his answering machine.

(e) Respondent failed to return any of these calls.

(31) By certified letter dated May 16, 1995, which was received by respondent on May 17, 1995, [H] requested:

(a) that he provide her with a copy of the terms of his fee agreement regarding her case;

(b) an explanation of the delay in concluding the case;

(c) an explanation of the actions that needed to be taken to complete the matter;

(d) a date by which respondent anticipated the matter would be completed;

(e) the status of the suit filed on her behalf; and

(f) information as to whether respondent had filed a civil action on her behalf.

(32) Respondent failed to respond to that letter.

Charge TV: The [M] Matter

(33) In or around December, 1988, [M] and two passengers, minors, retained respondent to represent them in a personal injury action suffered when a vehicle she was operating hit a raised trolley track.

(34) On or around December 21, 1990, respondent filed a complaint in the court of common pleas, [ ], captioned, [M] v. [I], December term, no. [ ].

(35) In or around August 1991, an award in favor of defendants was granted due to respondent’s failure to appear at the scheduled arbitration hearing.

(36) In or around September 1991, respondent filed an appeal from award of arbitration on behalf of [M].

(37) By letter dated November 15, 1991, [I] notified respondent that depositions of the plaintiffs were scheduled for November 26, 1991.

(38) On that date, respondent failed to appear at the scheduled deposition.

(39) By order dated December 16, 1991, the Honorable [N] ordered plaintiffs to appear and submit to an oral deposition within 15 days of the date of the order or risk sanctions.

(40) Respondent failed to appear for oral deposition within 15 days as provided by the above court order.

(41) By order dated March 12,1992, Judge [N] sanctioned the plaintiffs and ordered them to pay $300 within 30 days of the date of the order or risk further sanctions.

(42) By letter dated April 3, 1992, to [M], respondent informed her that depositions were now scheduled for April 23, 1992 and that it was necessary for her to be present.

(43) On or around April 23, 1992, [M] was deposed, but respondent failed to produce the other plaintiffs for deposition as required by the orders dated December 16, 1991 and March 12, 1992.

(44) On or around April 29,1992, defendant’s motion for sanctions, to be presented to the court of common pleas on May 8,1992, was hand-delivered to respondent’s office.

(45) By order dated May 8, 1992, Judge [N] ordered that the plaintiffs [O] and [P] the minors, were precluded from testifying at trial and/or precluded from presenting any medical evidence on their behalf due to failure to comply with the court orders dated December 16, 1991 and March 12, 1992.

(46) In or around February 1993, the case was settled prior to trial for [M], only, for the amount of $10,000.

(47) By letter dated February 16,1993, to respondent, [Q], Esquire, an attorney for [I], confirmed that the case had settled for [M] in the amount of $10,000, but that due to [I’s] cash flow problems, payment of the settlement could not be made for 180 days after receipt of the order to satisfy and stipulation to withdraw appeal.

(a) She requested that respondent execute and return these closing papers in an enclosed self-addressed stamped envelope.

(b) Respondent failed to promptly execute and return the documents in order to consummate the settlement.

(48)By letter dated September 18,1994, [R], [I] paralegal, informed respondent that he had not received the closing papers including the order to satisfy and the stipulation to withdraw appeal and that the 180 day waiting period for payment of the settlement amount could not begin until respondent sent those documents.

(a) Respondent failed to execute and return these documents to [I] in order to begin the waiting period for payment of the settlement funds.

Charge V: The [S] Matter

(49) Respondent agreed to represent [T] in claims arising from her employment by [U] Corporation where in the course and scope of her employment she suffered injuries on November 26, 1989, when she slipped and fell on the property at [V] Hotel in [ ].

(50) [T] signed a “contingent fee agreement,” dated December 31,1990 [sic], authorizing respondent to represent her in her claims against the [V] Hotel.

(51) In or around December 1991, respondent settled [T’s] claim against [V] Hotel for $16,250.

(a) Respondent received from [W] Insurance Company a settlement check dated December 11,1991, made payable to “[T] and her attorney, [respondent], Esquire.”

(b) On or around December 13, 1991, respondent endorsed and negotiated that check.

(52) Respondent failed to provide [T] with a written statement stating the outcome of the matter and showing the remittance to [T] and the method of its determination.

(53) In or around March 1994, [T] filed a writ of summons in a legal malpractice suit against respondent, individually, and the law firm of [respondent], in the [ ] Court of Common Pleas, [ ] County, March term, 1994, no. [ ].

(a) In or around September 1994, [T] filed a complaint in the above-captioned case alleging respondent was negligent in the handling of her case.

(b) On or around September 10,1994, respondent was personally served with the complaint at his residence at [ ]•

(54) By order dated November 9,1994, a default judgment was entered against respondent for failing to timely answer [T’s] complaint.

(a) Respondent failed to appear at an arbitration hearing to assess damages held in that case on November 18, 1994.

(b) On or around November 1994, respondent received notice of an arbitration award for $40,000, including compensatory and punitive damages.

(c) Respondent has failed to satisfy that judgment.

(55) In or around November 1994, [T] filed a statement of claim against respondent with the Supreme Court of Pennsylvania, Pennsylvania Lawyers Fund for Client Security.

(a) By letters dated November 15 and 17, 1994, [X], executive director of the fund, advised respondent that [T] filed a claim against him alleging, inter alia, that he breached his fiduciary duty to her.

(b) By fax dated December 15, 1994, respondent responded to [X’s] letter, therein denying all allegations against him and representing that he had paid [T] her settlement money in cash.

(c) On or around January 1, 1995, respondent telephoned [X] and verbally represented that [T] had received a cash distribution.

(56) On or around May 11, 1995, Judge [Y] presided at a fund hearing, at which time [S], Esquire, represented [T] and respondent represented himself.

(57) Respondent testified under oath:

(a) that [T] contacted him and requested that distribution be made to her in cash because she did not have a bank account; and

(b) [T] received the distribution in cash.

(58) The fund provided respondent with the opportunity to supplement the record, by June 1,1995, with copies of the records of his escrow account and the receipt and distribution sheet in the case.

(59) Respondent did not provide the fund with the records of [T’s] account funds supporting his position, and as a result, the fund awarded [T] $9,750, her portion of the settlement.

(60) By subpoena dated May 19, 1997, the Office of Disciplinary Counsel subpoenaed respondent’s financial records regarding the [T] settlement.

(61) Respondent failed to produce the record of [T’s] account funds to support his position to that office.

(62) Respondent paid expenses including employees’ salaries out of his client escrow account.

(63) Respondent deposited client funds into his personal account and disbursed client funds from his personal account.

(64) There is no evidence that respondent misappropriated client funds.

(65) Respondent’s history of discipline includes:

(a) In February 1991, he received an informal admonition for violations involving lack of diligence, failure to communicate and engaging in conduct prejudicial to the administration of justice.

(b) In July 1992, respondent received a summary private reprimand for conduct in two cases involving incompetence, lack of diligence, failure to provide a written fee agreement, failure to communicate with a client, failure to provide a full accounting of funds to a client, and engaging in conduct prejudicial to the administration of justice.

(c) In June 1994, he again received a summary private reprimand for conduct in two cases involving the exact same infractions.

(d) In August 1995, he received yet another private reprimand for conduct involving incompetence, lack of diligence and failure to communicate with his client.

in. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:

(1) R.P.C. 1.1 — Failing to provide competent representation to a client;

(2) R.P.C. 1.3 — Failing to act with reasonable diligence and promptness in representing a client;

(3) R.P.C. 1.4(a) — Failing to keep a client informed about the status of a matter and failing to promptly comply with reasonable requests for information;

(4) R.P.C. 1.4(b) — Failing to explain a matter to the extent necessary to permit a client to make informed decisions regarding the representation;

(5) R.P.C. 1.5(c) — Failing to provide a written contingent fee agreement which states the method by which the fee is to be determined;

(6) R.P.C. 1.15(a) — Failing to hold property of clients or third persons that is in an attorney’s possession in connection with a representation separate from the attorney’s own property;

(7) R.P.C. 1.15(b) — Failing to promptly deliver to a client or third person any funds or other property that the client or a third person is entitled to receive and, failing to promptly render a full accounting regarding such property, upon request by a client or third person;

(8) R.P.C. 8.4(d) — Engaging in conduct that is prejudicial to the administration of justice;

(9) Pa.R.D.E. 219(d)(l)(iii) — All persons required to pay an annual fee shall file with the administrative office a form which shall set forth the name of each financial institution in this Commonwealth in which the attorney on May 1 of the current year or at any time during the preceding 12 months held funds of a client of a third person subject to Rule 1.15 of the Rules of Professional conduct;

(10) Pa.R.D.E. 219(d)(l)(iv) — The attorney shall file a statement that the attorney is familiar and in compliance with Rule 1.15 of the Rules of Professional Conduct regarding the handling of funds and other property of clients and others;

(11) Pa.R.D.E. 219(d)(3) — Every attorney who has filed a registration statement shall notify the administrative office in writing of any change in the information previously submitted, including, office address and telephone number, within 30 days after such change.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline filed against respondent charging him with numerous violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement. At the prehearing conference on February 13,1998, the parties entered into a stipulation of facts, which was admitted as evidence at the disciplinary hearing on April 22,1998. Respondent agreed on the record that the stipulation was an accurate recitation of the evidence against him. The Hearing Committee also had the benefit of testimony from petitioner’s witness, 23 exhibits, and respondent’s testimony. Respondent offered no exhibits or witnesses.

The Hearing Committee found that respondent violated Rules of Professional Conduct 1.1, 1.3, 1.4(a), 1.4(b), 1.5(c), 1.15(a), 1.15(b), 8.4(d), and Rules of Disciplinary Enforcement 219(d)(l)(iii), 219(d)(l)(iv) and 219(d)(3). The committee recommended a period of suspension ranging from six months to one year. This recommendation was based on the misconduct as well as respondent’s prior history of one informal admonition and three private reprimands. The committee considered respondent’s testimony as to mitigation. Respondent testified that he was preoccupied with a very large criminal practice and most of the clients referred to in the petition for discipline were friends or personal acquaintances of his family who he represented on an informal basis. Respondent also explained that his office management skills were poor, thus contributing to his problems. The committee determined these defenses to be flimsy and found that respondent did not appear to comprehend the seriousness of the allegations against him.

The board’s review of the record demonstrates that the Hearing Committee’s findings of fact and conclusions of law are correct. The board also agrees with the Hearing Committee’s conclusions that respondent’s explanations are no excuse or justification for his misconduct. Respondent has practiced law since 1976. There is no reason he should not understand his responsibilities to his clients, both as to handling client monies and client cases. Respondent’s explanation of poor office management skills is unacceptable. It equally defies logic that deference should be given to respondent because the affected clients were friends of respondent.

Furthermore, respondent has been on notice of problem areas in his practice. An informal admonition in 1991, and private reprimands in 1992, 1994 and 1995 should certainly have served as a warning to respondent to make changes in his law practice. Sadly, these prior encounters with the disciplinary system made no impression on respondent. A review of respondent’s prior discipline indicates that respondent has been engaging in misconduct for a period in excess of ten years. Respondent had the opportunity many times to change his ways and did not do so. As a direct result, respondent’s clients suffered.

Respondent engaged in a pattern of client neglect, failure to handle cases diligently and promptly, and failure to communicate with clients concerning their cases. He commingled client funds and did not maintain complete records of fiduciary funds. He paid office expenses, including employee salaries, out of his client escrow account. Respondent also placed client funds into his personal account and disbursed client funds from his personal account. Respondent changed his office and telephone number and did not see fit to contact his clients and let them know this basic information. Respondent ran a slipshod practice. Furthermore, respondent’s conduct since 1989 clearly points to his untrustworthiness, dishonesty, and utter disregard for his fiduciary duties. His clients deserved more competent representation than he was willing to give.

The inescapable conclusion to be drawn from the record is that respondent is not fit to practice law. The board cannot allow respondent to remain available to the public as a fit and competent member of the legal profession. To do so would ignore the realities of this situation. To do so would also put the legal profession and the judiciary in the position of justifying intractable misconduct resulting from abhorrent office procedures and lack of discipline.

The recommendation of the Hearing Committee is too lenient to address the egregiousness of respondent’s activities. The appropriate sanction in this matter to address the magnitude of the misconduct is disbarment. The board is cognizant that disbarment is an extreme measure used only in the most egregious cases, as it represents a termination of the license to practice law without a promise of its restoration in the future. Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). Disbarment has been imposed in other cases similar to the case at bar. In Office of Disciplinary Counsels Davis, 532 Pa. 22, 614 A.2d 1116 (1992), Mr. Davis was disbarred for engaging in a pattern of neglect of client affairs and commingling of entrusted funds. He ran a practice consisting of low cost, high volume divorces. Mr. Davis attributed his problems to his sloppy office procedures and overwhelming case load. The Supreme Court found that this explanation did not justify his acts. The court also found Mr. Davis’ extensive prior record of discipline compelling as to disbarment. The attorney in Office of Disciplinary Counsel v. Knepp, 497 Pa. 396, 441 A.2d 1197 (1982), was disbarred after he engaged in a four-year pattern of neglecting legal matters, charging excessive legal fees, making dishonest statements to clients and failing to maintain proper records of client funds. Mr. Knepp, who had no prior record of discipline, ascribed his misconduct to financial difficulties arising from his extensive involvement in politics. The Supreme Court determined that such an excuse in no way mitigated the seriousness of the misconduct.

Having fully considered respondent’s pattern of misconduct through the years and his failure to use his prior disciplinary encounters as an impetus to change his habits of practicing law, the board is persuaded that disbarment is the most appropriate sanction to protect the public and maintain the integrity of the legal system.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be disbarred from the practice of law in the Commonwealth of Pennsylvania.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Elliott did not participate in the November 18, 1998 adjudication.

ORDER

Upon consideration of the report and recommendations of the Disciplinary Board dated March 17, 1999, and following oral argument, it is hereby ordered that [respondent] be and he is hereby suspended from the Bar of this Commonwealth for a period of five years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

      . One of the Hearing Committee members was unable to attend the hearing. Respondent was advised of his options and agreed to proceed before a two-member panel.

      . The private reprimands respondent received in 1991 and 1992 were incorrectly listed in the stipulation as two private reprimands on each of those dates when, in fact, only one reprimand was administered for violations relating to two separate clients.

      . While the complaints sub judice were pending, respondent receivedaD.B.-7 letter dated February 10,1998 and another dated March 4, 1998. Both resulted in recommendations for a private reprimand which was never administered because of the board’s adjudication of the instant case. That reprimand was for violations of R.P.C. 1.3,1.4(a), 1.4(b), 1.5(b) and 1.15(b).


author: LEWIS, J.,

text:
    Irvin v. Fierer

      C.P. of Dauphin County,
    no. 413 S 2000.

      Robin J. Marzella, for plaintiff.

      Sarah W. Arosell, for defendants.
    BEFORE: KLEINFELTER, LEWIS AND CHERRY, JJ.

    September 13, 2000
   LEWIS, J.,

In this action, plaintiff seeks to hold liable a physician practice under the corporate negligence doctrine and requests that punitive damages be awarded. The facts of this case indicate that decedent Marie Brown had a medical history which included chronic asthma and chronic obstructive pulmonary disease. Plaintiff claims that Ms. Brown had been a patient of defendant Kandra Fierer & Kuskin Associates Ltd. for the rest of her health care needs. KFKA is an incorporated medical organization with an office in Harrisburg.

In the spring of 1999, when Ms. Brown had developed a continuous cough and after she had been evaluated by a specialist, Dr. Fierer of KFKA recommended that she undergo a colonoscopy and an esophagogastroduodenoscope (EGD) in order to assess her digestive tract. Dr. Fierer is a physician licensed to, and engaged in, the practice of internal and family medicine at KFKA. Plaintiff avers that at the time Ms. Brown was evaluated for her persistent cough at KFKA, she was at an increased risk of respiratory distress. However, plaintiff claims that defendants decided to continue with the scheduled procedures.

Ms. Brown was taken to KFKA for the EGD and colonoscopy on the morning of May 14, 1999. Plaintiff avers that the drug Versed was used as the anesthetic for the performance of the aforementioned procedures. Plaintiff maintains that Versed carries a high risk of pulmonary arrest in an already compromised patient. Plaintiff advises that this type of anesthesia has a strong central nervous system depressant effect which, if not properly monitored, can cause respiratory depression and ultimately respiratory failure. Plaintiff further asserts that during the procedures, the appropriate equipment and personnel to monitor Ms. Brown’s heart and respiration was not employed because the medical records indicate that no one other than Dr. Fierer was present to oversee her vital signs.

Plaintiff claims that Dr. Fierer performed the EGD first and the colonoscopy second. Plaintiff additionally claims that it was not discovered until the conclusion of the procedures that Ms. Brown ceased breathing and had been without oxygen for a period of time. Plaintiff maintains that when it was first discovered that Ms. Brown was not breathing, she had neither a pulse nor a heartbeat. Attempts at resuscitation were initiated as Dr. Fierer administered CPR and an ambulance was summoned. Ms. Brown was transported to Community General Osteopathic Hospital where she was pronounced dead at 12:10 p.m. on May 14, 1999.

Plaintiff initiated this suit on behalf of the estate of Marie Brown against Dr. Fierer and against KFKA by filing a complaint on February 2, 2000. Thereafter, defendants filed preliminary objections as to plaintiff’s claim for punitive damages and as to plaintiff’s allegations of corporate negligence against KFKA. Argument was held before a panel of this court on June 15, 2000. For the reasons set forth below, defendants’ preliminary objections are denied.

We note that although defendants’ preliminary objections have been characterized as motions to strike, their objections are actually in the nature of a demurrer. The standard for the disposition of a demurrer is well-settled.

“Since sustaining the demurrer results in a denial of the pleader’s claim or dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted .... If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected .. ..” Willet v. Pa. Medical Catastrophe Loss Fund, 549 Pa. 613, 619, 702 A.2d 850, 853 (1997).

CORPORATE NEGLIGENCE

Recently, another panel of this court addressed the issue of corporate negligence in the case of Dowhouer v. Judson, 45 D.&C.4th 172 (Dauphin Cty. 2000). In that opinion filed on March 10,2000, the panel analyzed the doctrine of corporate negligence and its application in this Commonwealth, beginning with the standard as set forth in the case of Thompson v. Nason Hospital.

“In Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), the Pennsylvania Supreme Court, in establishing the doctrine of corporate negligence as it relates to hospital liability, identified four factors that a plaintiff must establish to show that a hospital breached its duty. The factors are: (1) the hospital’s duty to use reasonable cue in the maintenance of safe and adequate facilities and equipment; (2) the hospital’s duty to select and retain only competent physicians; (3) the hospital’s duty to oversee all persons who practice medicine within its walls as to patient care; and (4) the hospital’s duty to formally adopt and enforce adequate rules and policies to ensure quality care for its patients. Id. at 339-40, 591 A.2d at 707. The Thompson court held that ‘the corporate hospital’s role in the total health care of its patients’ required that hospitals be held to a standard of care separate and apart from the standard of care imposed upon physicians. Id. at 341, 591 A.2d at 708. The Thompson court also noted that for a hospital to be directly liable to a patient, the hospital must have actual or constructive knowledge of the defect or procedure that caused the harm. Id.” Dowhouer, 45 D.&C.4th at 178.

This court in Dowhouer refused to extend the corporate negligence doctrine to physician practices. We based our analysis on several cases, beginning with Remshifski v. Kraus, 1845 Civil 1992, Monroe County, September 8,1995, the only published common pleas opinion prior to Dowhouer that tackled this issue. Remshifski, on a summary judgment motion, applied Thompson and declined to allow corporate negligence liability against entities other than hospitals.

We then reviewed the cases of Milan v. American Vision Center, 34 F. Supp.2d 279 (E.D. Pa. 1998), (holding that corporate negligence should not be extended to optometrists’ offices), and Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998), (finding that corporate liability duties should “be applied to an HMO when that HMO is performing the same or similar functions as a hospital.”). The opinions in both of these cases examined Thompson and discussed the entity’s role in the total health care of its patients. Applying the rationales set forth in each of the above cases, this court in Dowhouer held that the plaintiff’s claims did not impose a corporate negligence-type duty on the defendant physician practice, an entity devoted exclusively to the practice of cardiovascular surgery. Because this court did not find that the defendants’ role in that action was to deliver total health care to its patients as intended under Thompson, we declined to extend the doctrine of corporate negligence to that kind of specialty practice. Dowhouer, 45 D.&C.4th at 180-81.

In the case sub judice, however, this court finds that a different result is warranted. The facts in the instant case are clearly distinguishable from the facts in Dowhouer. In Dowhouer, the plaintiff was attempting to hold a surgical center responsible for care she received while she was a patient in a hospital. However, in the current case, Ms. Brown was a patient of KFKA for most of her health care needs and was required to have surgical procedures performed based on the evaluation of one of KFKA’s physicians. Ms. Brown was not admitted into a traditional hospital to undergo these surgical operations. Instead, Ms. Brown’s EGD and colonoscopy were conducted at KFKA’s offices.

Plaintiff effectively argues to this court that because the corporate entity KFKA made a conscious decision to expand its role as not just an office that practiced internal medicine but a facility that now provides many surgical and invasive procures, KFKA must be held accountable for the negligent acts which take place during such operations. Plaintiff contends that because of this elective expansion, KFKA is responsible to assure the presence of appropriate equipment, monitoring devices and personnel as is required in a traditional hospital setting under the corporate negligence doctrine.

Further, this court notes that KFKA’s authorization of the use of the supposedly dangerous drug Versed without the immediate availability of oxygen, the immediate availability of resuscitative drugs and equipment, the immediate availability of equipment for ventilation and intubation or the availability of equipment for the continuous monitoring of respiratory distress and skilled personnel for such monitoring are all courses of conduct which, as plaintiff’s complaint alleges, may suggest corporate liability. At this early stage in the proceedings when discovery has not been completed and expert reports have not been produced, this court agrees. Therefore, this court will allow plaintiff to proceed with its corporate negligence claim against KFKA due to the significant control exercised by the corporation over Ms. Brown’s total health care needs as alleged in plaintiff’s complaint. (See Fox v. Horn, no. 98-5279, 2000 U.S. Dist. Lexis 432, E.D. Pa., January 21, 2000, which allowed a corporate liability claim against defendant Corrections Physicians Services Inc. to advance based on its contractual health care and treatment over inmates.)

PUNITIVE DAMAGES

Next, defendants claim that plaintiff has not set forth sufficient factual allegations in her complaint to proceed with a claim for punitive damages. We disagree. The law in Pennsylvania regarding punitive damages is that they are only available in extremely limited circumstances. The Pennsylvania Supreme Court has held that punitive damages may not be awarded for misconduct which constitutes ordinary negligence, such as inadvertence, mistakes or errors in judgment. Martin v. Johns-Manville Corp., 508 Pa. 154, 170, 494 A.2d 1088, 1097 (1985); McDaniel v. Merck, Sharp and Dohme, 367 Pa. Super. 600, 623, 533 A.2d 436, 447 (1987), appeal denied, 520 Pa. 589, 551 A.2d 215 (1987). Since punitive damages are meant as a deterrent, they are only proper for outrageous conduct, done with bad motive or reckless indifference to the interest of others. Martin, 508 Pa. at 170, 494 A. 2d at 1097. In determining whether punitive damages are appropriate, the defendant’s state of mind is vital, and there must be an appreciation of the risk and the failure to act must be intentional, reckless or malicious. Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 748 (1984).

Plaintiff Irvin, in the matter currently before this court, has made allegations, that, if proven, may constitute outrageous conduct and support a claim for punitive damages. With discovery not yet complete, it is far too early for this court to decide whether or not plaintiff may pursue her claim for punitive damages.

Accordingly the following is entered:

ORDER

And now, September 13, 2000, it is hereby ordered that defendants’ preliminary objections are denied.


author: WETTICK JR.,

text:
    Gustine Uniontown Associates Ltd. v. Anthony Crane Rental Inc.

      C.P. of Allegheny County,
    no. GD99-12166.

      Edward B. Gentilcore, for plaintiff.

      Dolores Innamorato and John K. Lind, for defendant Anthony Crane Rental L.P.

      Robert J. Ray, for defendant Architectural Services Group Inc.

      Ralph A. Finizio, for defendant Construction Engineering Consultants Inc.

      Franklin L. Bialon and Gary Butler, for defendant GeoMechanics Inc.

      Joseph J. Bosick, for defendants Jabille Development Corp., S&R Restaurants Inc. and Wendy’s of Greater Pittsburgh Inc.

      Robert J. Blumling, for defendant Mascaro Inc.

      Stephen R McClosky, for defendant McMillen Engineering.

      William D. Clifford, for defendant P.C. Yezbak & Son Inc.

      Jeffrey A. Ramaley, for defendants Penn Transportation Services Inc. and Anthony Crane Rental Inc.

      Ray F. Middleman and Michael J. McShea, for defendant Ruprecht, Schroeder & Hoffman, Architects.

      Kevin J. McKeon, for Thor Concrete Construction Inc.
    BSW Architects, pro se.

      July 18, 2000
   WETTICK JR.,

Defendants’ preliminary objections raising statute of limitations defenses based on the limitations provisions for civil actions of the Judicial Code (42 Pa.C.S. §§5521-5538) are the subject of this opinion and order of court. The issue raised through these preliminary objections is whether December 20,1982 amendments to the limitation provisions of the Judicial Code reduced the limitation period for claims for the breach of a written contract governing the construction of real estate from six years to four years. There is not any appellate court case law that has resolved this issue.

I recognize that the Rules of Civil Procedure provide for the defense of the statute of limitations to be raised in an answer as new matter. These statute of limitations defenses are being considered at this stage of the proceedings at the suggestion of the parties because the availability of the discovery rule will be a significant factual issue in this litigation if I do not accept plaintiff’s position that its claims are governed by a six-year limitation period.

This lawsuit arises out of the development of a shopping center on an area of land of approximately 29 acres. The shopping center includes a Wal-Mart store, a Foodland store, a Family Toy Warehouse store, a Reveo store, and miscellaneous retail stores in areas designated as shops A, B, and C. Plaintiff is the developer/owner. The work was substantially completed in September 1993. In 1995, plaintiff became aware of movement and/ or heaving of a floor slab in certain locations of the WalMart building. In late 1995 and 1996, movement and/or heaving was discovered in other buildings. By early 1998, movement and/or heaving had occurred in floor slabs of all buildings, sidewalks, and parking lots.

Plaintiff commenced this lawsuit on July 30, 1999 by filing a praecipe for a writ of summons. A complaint was filed on January 27, 2000 which includes claims against numerous entities involved in the design and construction of this shopping center. Most of the entities had contracts with plaintiff. Plaintiff’s complaint raises the following causes of action: breach of contract; breach of implied warranties; breach of the duties of good faith and fair dealings; misrepresentation/concealment; and professional negligence.

It is plaintiff’s position that each cause of action is governed by a six-year limitation period. Consequently, since the work was not substantially completed until September 1993, plaintiff’s claims are not barred by any statute of limitations. Thus, discovery in this lawsuit need not involve what plaintiff knew or should have known prior to July 30, 1995 or prior to July 30, 1997 or evidence relevant to the tolling of the statute of limitations under the repair doctrine.

This litigation is governed by the statute of limitations periods established in the December 20, 1982 amendments to the Judicial Code. The six-year limitation period is set forth at section 5527; it reads as follows:

“Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years.”

Defendants’ argument that this provision does not apply is very straightforward: Under the clear language of section 5527, this six-year limitation period covers only civil actions or proceedings that are not subject to another limitation period.

Plaintiff’s breach of contract claims are based on written agreements so these claims come within the plain meaning of 42 Pa.C.S. section 5525(8) which reads as follows:

“The following actions and proceedings must be commenced within four years: ...

“(8) An action upon a contract, obligation or liability founded upon a writing not specified in paragraph (7), under seal or otherwise, except in actions subject to another limitation specified in this subchapter.”

Plaintiff’s warranty claims are based on warranties implied in law. Consequently, they come within the plain meaning of section 5525(4) which reads as follows:

“The following actions and proceedings must be commenced within four years: ...

“(4) An action upon a contract implied in law, except an action subject to another limitation specified in this subchapter.”

Plaintiff’s professional negligence and misrepresentation claims seek to recover damages for injury to real property. Consequently, they come within the plain meaning of section 5524(7) which reads as follows:

“The following actions and proceedings must be commenced within two years: ...

“(7) Any other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional or otherwise tortious conduct or any other action or proceeding sounding in trespass, including deceit or fraud, except an action or proceeding subject to another limitation specified in this sub-chapter.”

Plaintiff offers the following response to defendants’ argument:

Prior to 1982, construction contracts involving real estate were governed by a six-year limitation period while contracts for the sale, construction, or furnishing of tangible property were governed by a four-year limitation period. Because, historically, construction contracts involving real estate were governed by longer limitation periods, courts should assume that any new legislation governing the statute of limitations for different actions preserves this pattern in the absence of an express reference to construction contracts involving real estate. Thus, the general reference in amended section 5525(8) to an action upon a contract founded upon a writing should not be construed to include a written construction contract involving real estate.

Ordinarily, I would summarily dismiss plaintiff’s argument. The language of section 5525(8) could not be clearer: a single limitation period of four years governs actions upon any written contracts unless there is another limitation period specified in the subchapter. Furthermore, construction contracts involving real estate are not esoteric transactions that the legislature might have overlooked. Consequently, since no other subsection refers to written contracts for the construction of real estate, the legislature intended for these contracts to be governed by the four-year limitation period of section 5525.

However, in 1992 the Pennsylvania Superior Court in Romeo & Sons Inc. v. P.C. Yezbak & Son Inc., 421 Pa. Super. 333, 617 A.2d 1320 (1992), ruled that under the 1982 amendments, contracts governing construction of housing and construction of commercial buildings are governed by the six-year limitation period of section 5527.

In Romeo, the owner brought an action against the contractor for the breach of contract governing the construction of a warehouse/office building. The suit was brought within six years of the completion of the project but more than four years after the owner became aware of the structural defects. The owner contended that its breach of contract action was governed by the six-year limitation period of section 5527. The contractor, on the other hand, relied on 42 Pa.C.S. §5525(1) which provides that the following actions and proceedings must be commenced within four years:

“(1) An action upon a contract, under seal or otherwise, for the sale, construction or furnishing of tangible personal property or fixtures.”

According to the court’s opinion, section 5525(1) and section 5527 were “[t]he two statute of limitations sections being considered by this court.” Id., 421 Pa. Super, at 336, 617 A.2d at 1322. The Superior Court concluded that section 5525(1) did not apply because a lawsuit involving the construction of a house and/or commercial structure is not an action upon a contract for the sale, construction, or furnishing of tangible personal property or fixtures.

The Pennsylvania Supreme Court affirmed the result of the Pennsylvania Superior Court on entirely separate grounds in Romeo & Sons Inc. v. R C. Yezbak & Son Inc., 539 Pa. 390, 652 A.2d 830 (1995). The court ruled that the 1982 amendments to the Judicial Code did not govern this litigation. The written construction contracts under consideration were governed by the prior version of section 5527(2) which required an “action upon a contract ... in writing” to be commenced within six years; thus, the Superior Court had reached the right result. The Supreme Court’s opinion included the following statement:

“Because the facts of this case do not implicate the current statutory scheme for limitations of actions, we express no opinion regarding the wisdom of the Superior Court’s conclusion.” Id., 539 Pa. at 395,652 A.2d at 833.

Unlike the defendants in Romeo, defendants in the present case are not contending that this lawsuit is governed by the provisions of 42 Pa.C.S. §5525(1). Instead, they rely on the provisions of the 1982 amendments creating a four-year limitation period set forth at 42 Pa.C.S. §5525(8).

The argument that written contracts involving the construction of real property are governed by section 5525(8) was apparently not considered by the Superior Court in Romeo & Sons Inc. v. P.C. Yezbak & Son Inc., supra. For the reasons that I have discussed, the language of section 5525(8) clearly reaches written contracts for the construction of real estate. See Packer Society Hill Travel Agency Inc. v. Presbyterian University of Pennsylvania Medical Center, 430 Pa. Super. 625, 629-30, 635 A.2d 649, 652 (1993), where the court stated that:

“Then, finally, in 1982, the legislature adopted 42 Pa.C.S. §5525(8) and §5527 in their present forms. Now the statute of limitations for all written contracts is four years and the statute of limitations for contracts under seal, irrespective of the provisions of 42 Pa.C.S. §5525, is 20 years. Thus, the statute of limitations applicable to all actions on contracts not under seal is uniform. The period of limitations is four years.”

Plaintiff argues that the limitation period governing its tort causes of action should be the limitation period governing its contract causes of action because its tort claims involve breaches of duties that arose out of contractual relationships. There is no case law that supports plaintiff’s position.

The Pennsylvania appellate courts have struggled with the issue of when a relationship that is essentially based on a contract should be governed solely by contract law and when tort principles, including tort remedies, should also govern the relationship. The plaintiff who is able to look to tort law to expand the defendant’s duties and/or to utilize tort remedies cannot at the same time state that the longer limitation period governing contract actions should apply to the tort claims. If plaintiff is correct that these claims are essentially contract causes of action, only principles of contract law should govern defendants’ duties and the remedies available to plaintiff. See Argust v. Dick Mackey General Contracting Co. Inc., 390 Pa. Super. 183, 187, 568 A.2d 255, 257 (1990), where the court applied the two-year limitation period of section 5524(7) to the tort claims against a contractor that installed a swimming pool.

For these reasons, I enter the following order of court:

ORDER

On July 18, 2000, upon consideration of defendants’ preliminary objections raising statute of limitations defenses, it is hereby ordered that:

(1) the six-year limitation period of 42 Pa.C.S. §5527 does not govern any of plaintiff’s causes of action;

(2) plaintiff’s actions based on a contract, including a contract implied in law, are governed by a four-year limitations period;

(3) plaintiff’s tort actions are governed by the two-year limitation period of 42 Pa.C.S. §5524; and

(4) defendants’ requests that I dismiss claims based on the statute of limitations are overruled because at this stage of the proceedings I cannot determine whether the limitations periods were tolled through the discovery rule and/or the repair doctrine.

      . Other preliminary objections are considered in a separate memorandum and order of court.

      . As to certain defendants, plaintiff also contends that the statute of limitations was tolled by the repair doctrine described in Amodeo v. Ryan Homes Inc., 407 Pa. Super. 448, 595 A.2d 1232 (1991).

      . Real estate is defined in the law as land and anything permanently affixed to the land.