author: KIESER, J.,

text:
    Blair v. Mehta

      C.P. of Lycoming County,
    no. 03-00954.

      Clifford A. Rieders and C. Scott Waters, for plaintiffs.

      Alan S. Baum, for defendants Simms, Datta, New Jersey/Pennsylvania EM-1 Medical Services and West Branch Emergency Physicians.

      Mark T. Perry, for defendants Mehta and Women’s Health Care Associates.

      David R. Bahl and Brian J. Bluth, for defendants Susquehanna Physician Services, The Williamsport Hospital and Susquehanna Health System.
    June 10, 2004
   KIESER, J.,

Before the court for determination are the preliminary objections of defendants Pankaj G. Mehta M.D. and Women’s Health Care Associates PC. filed November 7,2003. The defendants raise four preliminary objections. The court will deny in part and grant in part the preliminary objections.

The preliminary objections presently before the court were filed in response to the amended complaint filed on October 21, 2003. The amended complaint alleges the following facts. On June 16, 2001, Brenda Blair, the deceased, first began experiencing vomiting and diarrhea. Three days later on the 19th, Brenda experienced vomiting and abdominal pain. Around 9 that night, Joyce Blair, Brenda’s mother, took Brenda to the Williamsport Hospital’s emergency room. At 11:45 p.m., Dr. Simms examined Brenda and ordered blood studies. He diagnosed her with acute abdominal pain. He discharged Brenda at 1:40 a.m. after proscribing her Levsinex and advising her to increase her fluids and follow up with her family physician.

At 6 a.m. on June 20,2001, the Williamsport Hospital called Brenda and informed her that she had an elevated white blood count. At 8:15 a.m. that day, Brenda went back to the emergency room because her abdominal pain had worsened. She complained of increasing lower abdominal pain, vomiting and diarrhea. Dr. Datta examined Brenda. The examination revealed that Brenda’s abdomen was tender and no bowel sounds were present. Dr. Datta ordered an IV, labs, an abdominal and pelvic CT scan, and intravenous IV Toradol and Droperidol. The lab work indicated an elevated white blood count, elevated segs, and decreased lymphs. The pelvic CT scan showed posterior pelvic fluid and inflammatory changes. Dr. Datta consulted Dr. Mehta. Dr. Mehta requested that Brenda be brought to her office at the hospital.

Dr. Mehta’s examination of Brenda found that Brenda had a significant amount of abdominal pain and generalized tenderness. Brenda also complained of continued nausea. Dr. Mehta’s impression was moderate to severe abdominal and pelvic pain with unknown etiology. Dr. Mehta decided to perform a laparoscopy on Brenda. At 1:36 p.m. on June 20, 2001, Brenda was admitted to the Williamsport Hospital. At 6:35 p.m., Dr. Mehta performed the laparascopy. The pelvic organs including tubes, ovaries, and uterus were found to be normal. There was a lot of small bowel distension caused by gas making it impossible to view the appendix.

Following the laparascopy, Brenda received pain medication at 9 and 11 p.m. Early in the morning of the 21st, Brenda was given additional pain medication and had lab work done. The lab work indicated that her white blood count was elevated, but not as high as before, and decreased segs. Brenda received pain medication at 9:30 a.m. and again at 2:30 p.m. Dr. Mehta ordered additional blood work at 4 p.m. It showed a slight decrease in white blood count, but it was still elevated. Dr. Mehta concluded that Brenda should be discharged. Dr. Mehta wrote prescriptions for antibiotics and pain medication. Brenda was discharged shortly thereafter, despite being in significant pain.

Brenda’s pain continued while she was at home. She remained in bed and could not eat. On June 24, 2001, Brenda called the Williamsport Hospital emergency room to see if anything could be done for the gas pain she was experiencing. She was advised to take Gas X. Brenda took the Gas X, but it did not relieve her pain.

On June 25, 2001, Brenda called Dr. Mehta’s office complaining of a lot of gas and significant abdominal pain. Brenda was instructed to take a dose of a laxative that day and use as needed the next day. Joyce Blair purchased the laxative for Brenda and Brenda took some of it. After ingesting the laxative, Brenda experienced severe pain and her condition worsened to the point of delirium.

On June 27, 2001, an ambulance transported Brenda to the Williamsport Hospital emergency room. She arrived at 5:20 a.m. An emergency room physician examined Brenda. She had an elevated pulse and respiratory rate. Brenda’s abdomen was distended and tender. Brenda was pale, cool and clammy with mottling of her arms and legs. Her blood pressure had dropped, and she had an elevated white blood count. A CT scan of the abdomen showed a significantly distended stomach with air in the small bowel. The stool was positive for blood.

Brenda was admitted to the intensive care unit at 11:24 a.m. At 3:20 p.m. she underwent abdominal exploratory surgery. The surgical exploration revealed total necrosis of the small bowel with additional ischemic damage to the right colon and transverse colon. The surgeon stopped midway through the surgery to discuss Brenda’s condition with her family. Brenda’s abdomen was closed and she was returned to the critical care unit at 4:45 p.m.

On June 28, 2001, at 2 a.m., nursing personnel contacted Brenda’s family because her condition had deteriorated. Brenda died at the Williamsport Hospital on June 28, 2001, at 2:33 a.m. On June 29, 2001, an autopsy was performed that concluded the cause of death was complications of fulminant inflammatory bowel disease including mesenteric thrombophlebitis with bowel infarction.

At the time of her death, Brenda Blair was 36 years old. She was survived by her parents, Joyce A. and Joseph Blair and a sister, Catherine Winnie.

The first of the four preliminary objections defendants raise is that the allegations of negligence are not sufficiently specific. Defendants contend that the allegations in paragraphs 68.4,68.6,68.8 and 69.8 are general, vague and boilerplate allegations that would permit the plaintiffs to file new causes of action after the expiration of the statute of limitations.

The second preliminary objection is that the damages sought by the plaintiffs in paragraphs 69.6 and 133 are not compensable under the Wrongful Death Statute, 42 Pa.C.S. §8301. Citing Skoda v. West Penn Power Company, 411 Pa. 323, 191 A.2d 822 (1963), defendants assert that damages for services, companionship, society, comfort, guidance, solace, protection, friendship, love, tutelage and affection cannot be recovered under the Wrongful Death Statute. Defendants assert that “wrongful death damages are only awarded to compensate certain enumerated relatives of the deceased for the pecuniary loss occasioned to them through the deprivation of the part of the earnings of the deceased which they would have received from him had he lived.” Brief in support of preliminary objections of defendants Pankaj G. Mehta M.D. and Women’s Health Care Associates P.C. to plaintiffs’ amended complaint, Blair v. Mehta, no. 03-00,954 at 4 (Lycoming Cty. 2003).

The third preliminary objection is that plaintiffs have failed to state a claim for negligent infliction of emotional distress against defendants. Defendants contend that plaintiffs have failed to allege that they had knowledge or showed knowledge of the alleged negligent treatment as it was occurring.

The fourth preliminary objection is that the request for punitive damages against Dr. Mehta in Count XIII of the amended complaint should be stricken. Dr. Mehta argues that the allegations in the amended complaint do not rise to the level of egregiousness that would warrant an award of punitive damages. Rather, at most, the allegations sound of negligence.

In response, plaintiffs argue that the allegations of negligence are sufficiently specific. Plaintiffs argue that the language is not vague and open ended, but, when read in conjunction with the entire amended complaint, is limited and specific. As to the claim for damages under the Wrongful Death Statute, plaintiffs argue that parents, Joyce and Joseph Blair, are entitled to seek compensation for the pecuniary loss they have suffered as a result of Brenda’s death. That pecuniary loss includes services the decedent would have performed for the parents. Plaintiffs argue that included within those services is the companionship, society, comfort, guidance, solace and protection that Brenda would have provided her parents. As such, plaintiffs contend they are entitled to seek recovery for those damages.

Addressing the demurrer to the negligent infliction of emotional distress claim, plaintiffs argue that, while a plaintiff must observe the negligent conduct, there is no requirement that the plaintiff understand at the time the event was occurring that there was negligence. Plaintiffs argue that they have pleaded a negligent infliction of emotional distress claim against defendants. Plaintiffs assert that they witnessed the alleged negligent conduct by Dr. Mehta, were suspicious and concerned about the care at the time it was rendered, and witnessed and experienced the traumatic events of Brenda’s health deteriorating and her eventual death.

As to the request for punitive damages against Dr. Mehta, plaintiffs argue that, while more than mere negligent conduct is required, punitive damages may be awarded if it can be shown that the defendant acted with reckless indifference to the rights of others. Reckless indifference may be shown if the defendant knew or had reason to know of facts which created a high risk of physical harm to a plaintiff, and the defendant nevertheless proceeded to act in conscious disregard of, or indifference to, that risk. Plaintiffs argue that the allegations in the amended complaint concerning Dr. Mehta’s failure to conduct standard medical tests or follow-up in the face of known symptoms, with knowledge of the risks involved, demonstrate a reckless indifference to the rights of Brenda and warrant an award of punitive damages.

PRELIMINARY OBJECTION 1 SPECIFICITY OF THE NEGLIGENCE PLEADINGS

First, the court will address the motion to strike the allegations of negligence. Pennsylvania is a fact-pleading state. Miketic v. Baron, 450 Pa. Super. 91, 104, 675 A.2d 324, 330 (1996). A complaint must set forth the material facts upon which the cause of action is based in a concise and summary form. Pa.R.C.P. 1019(a). The complaint must apprise the defendant of the claim being asserted and summarize the material facts needed to support the claim. Cardenas v. Schober, 783 A.2d 317, 325 (Pa. Super. 2001); Alpha Tau Omega Fraternity v. Uni- versify of Pennsylvania, 318 Pa. Super. 293, 298, 464 A.2d 1349, 1351 (1983).

The amount of detail or level of specificity required is “incapable of precise measurement.” Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 134, 396 A.2d 677, 681 (1978). However, the complaint must set forth enough material facts to allow the defendant to prepare a defense to the allegations contained within the complaint. Weiss v. Equibank, 313 Pa. Super. 446, 453, 460 A.2d 271, 274 (1983); PennDOT v. Shipley Humble Oil Co., 29 Pa. Commw. 171, 173, 370 A.2d 438, 439 (1977). Based on Connor v. Allegheny General Hospital, 501 Pa. 306, 311 n.3, 461 A.2d 600, 602-603 n.3 (1983), and its progeny, the language used in the complaint must also be specific enough as not to allow the plaintiff to assert new causes of action or theories of liability at a later date under the guise of merely amplifying what has been timely pleaded. In examining the complaint, the focus is not upon one particular paragraph in isolation. Yacoub v. Lehigh Valley Medical Associates PC., 805 A.2d 579, 589 (Pa. Super. 2002). The paragraph at issue must be read in conjunction with the complaint as a whole to determine if there is the requisite level of specificity. Id.

The motion to strike the negligence allegations will be denied in part and granted in part. The language at issue is the following:

“68.4 Failing to conduct appropriate diagnostic studies to diagnose Brenda’s condition;
“68.6 Failing to conduct additional diagnostic tests after surgery;
“68.8 Failing to appreciate the significance of Brenda’s abnormal lab work;
“69.8 Plaintiffs and decedent lost such other valuables and sustained such other damages as are properly allowed by Pennsylvania law.” Amended complaint, ¶¶68, 69, Blair v. Mehta, no. 03-00,954 (Lycoming Cty. 2003).

Subparagraphs 68.4, 68.6 and 68.8 are sufficiently specific when read with the rest of the amended complaint. The factual allegations define the scope of the allegations made in these subparagraphs. The amended complaint sets forth the facts describing Brenda’s medical condition when Dr. Mehta began treating her. The alleged failures in subparagraphs 68.4,68.6 and 68.8 are limited to what Dr. Mehta should have done when presented with a patient having the same symptoms as Brenda. Medical science and the alleged course of treatment further restrict Dr. Mehta’s alleged failures to a finite and ascertainable list to which defendants can prepare a defense. Therefore, the preliminary objection to subparagraphs 68.4, 68.6 and 68.8 is denied.

As to subparagraph 69.8, the preliminary objection will be granted. This paragraph is vague and at best is surplusage. The damages plaintiffs are seeking, and would be entitled to if they prevail on their claims, are set forth in the counts pertaining to the wrongful death action, the survival action, the negligent infliction of emotional distress claim, and the punitive damages claim. Therefore, the preliminary objection shall be granted.

Accordingly, the motion to strike the negligence allegations will be denied in part and granted in part.

PRELIMINARY OBJECTIONS 2, 3 AND 4

In analyzing the next three preliminary objections, the court shall be guided by the standard used in deciding a demurrer. A preliminary objection, in the nature of a demurrer, should only be granted when it is clear from the facts that the party has failed to state a claim upon which relief can be granted. Sunbeam Corp. v. Liberty Mutual Insurance Co., 566 Pa. 494, 499, 781 A.2d 1189, 1192 (2001). The reviewing court in making such a determination “is confined to the content of the complaint.” In re Adoption of S.P.T., 783 A.2d 779, 782 (Pa. Super. 2001). “The court may not consider factual matters; no testimony or other evidence outside the complaint may be adduced and the court may not address the merits of matters represented in the complaint.” Id. (emphasis in original) The court must admit as true all well pleaded material, relevant facts and any inferences fairly deducible from those facts. Willet v. Pennsylvania Medical Catastrophe Loss Fund, 549 Pa. 613, 619, 702 A.2d 850, 853 (1997). “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....” Id. (quoting The County of Allegheny v. The Commonwealth of Pennsylvania, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985)).

WRONGFUL DEATH DAMAGES

Addressing the demurrer to the request for damages resulting from the loss of the companionship, society, comfort, guidance, solace and protection Brenda would have provided her parents, the court will deny the demurrer. The Wrongful Death Statute provides:

“(a) General rule. — An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.

“(b) Beneficiaries. — ... [T]he right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased . . . .” 42 Pa.C.S. §8301(a), (b).

The most recent appellate decision brought to the attention of this court on the issue of damages recoverable under a wrongful death action permitted a child to recover for the loss of companionship, comfort, society and guidance the deceased parent would have provided. Machado v. Kunkel, 804 A.2d 1238 (Pa. Super. 2002). In so holding, the Machado court stated:

“[0]ur courts have recognized that under the Wrongful Death Act, children can recover for losses occasioned by the death of their parent(s).
“Under Pennsylvania law, a child can recover in a wrongful death action for the loss of companionship, comfort, society and guidance of a parent. Steiner by Steiner v. Bell Telephone Co., 358 Pa. Super. 505, 510, 517 A.2d 1348, 1356 (1986), aff’d, 518 Pa. 57, 540 A.2d 266 (1988). This element of damages has also been described as ‘loss of guidance, tutelage, and moral upbringing.’ Buchecker v. Reading Co., 271 Pa. Super. 35, 57, 412 A.2d 147, 158 (1979).” Id. at 1244-45 (footnote omitted) (quoting Walton v. Avco Corp., 383 Pa. Super. 518, 549, 557 A.2d 372, 388 (1989), aff’d in part, rev’d in part, and remanded, 530 Pa. 568, 610 A.2d 454 (1992)).

The Steiner case relied upon by Machado in turn relies upon the Pennsylvania Supreme Court decision in Spangler v. Helm’s New York-Pittsburgh Motor Express, 396 Pa. 482, 153 A.2d 490 (1959). In Spangler, Justice Musmanno recognized the unfortunate need of awarding damages in wrongful death cases in the following terms, describing the damages recoverable for the death of a woman survived by her husband and three minor children:

“The only question on this appeal must be stated in terms which might seem materialistic, namely: What did Mrs. Spangler mean to these people in terms of money? Naturally, no husband and no children see in the person dearest to them a money equivalent, and, during life, such an evaluation would be unqualifiedly brutal and offensive. However, with death, problems arise which must be solved, harsh and heartrending as they may be. Thus, as Mr. Spangler and his children now face a future with the main pillar of their family structure missing, the question inescapably follows: How much do they need to supplant that pillar?” Id. at 484, 153 A.2d at 492.

Then after enumerating specific domestic chores Mrs. Spangler had performed, Justice Musmanno stated the following:

“There are services performed by a wife-mother, which no housekeeper can supply.
“The fact that there is no mathematical formula whereby compassionately bestowed benefits can be converted into a precise number of bank notes does not mean that the tort-feasor will be excused from making suitable reimbursement for their loss. The law commands that the wrongdoer pay what justice requires and common sense dictates....
“Mrs. Spangler was unstintingly devoted to her family----[H]er loyalty was expressed in an incessant activity, tireless energy, and never-flagging concern. She took the children to church regularly, she added to their religious instruction, she prayed with them, she accompanied them to baseball games and on fishing trips. All these things — such as companionship, comfort, society, guidance, solace, and protection which go into the vase of family happiness — are the things for which a wrongdoer must pay when he shatters the vase.” Id. at 484-85, 153 A.2d at 492.

It is the reasoning of Spangler that will ultimately guide this court’s decision.

The purpose of the Wrongful Death Statute is to compensate the decedent’s spouse, parent or child for the pecuniary losses suffered as a result of the decedent’s death. Kiser v. Schulte, 538 Pa. 219, 226, 648 A.2d 1, 4 (1994); Slaseman v. Myers, 309 Pa. Super. 537, 549, 455 A.2d 1213, 1218 (1983). Pecuniary loss includes the value of services the decedent would have provided his family had he lived. Slaseman, 309 Pa. Super, at 549, 455 A.2d at 1218. Included among those services is the providing of society and comfort. For instance, a spouse is entitled to recover for the loss of the society and comfort the deceased spouse would have provided. Rittenhouse v. Hanks, 777 A.2d 1113, 1120 (Pa. Super. 2001), app. denied, 568 Pa. 677, 796 A.2d 318 (2002); Slaseman, 309 Pa. Super, at 549, 455 A.2d at 1218. Also, a child can recover for the loss of the guidance, tutelage and moral upbringing the deceased parent would have provided. Machado, 804 A.2d at 1245; Quinn v. PennDOT, 719 A.2d 1105 (Pa. Commw. 1998), app. denied, 558 Pa. 626,737 A.2d 1227 (1999). See also, Walton v. Avco Corp., 383 Pa. Super. 518, 549, 557 A.2d 372, 388 (1989), aff’d in part, rev’d in part, and remanded, 530 Pa. 568, 610 A.2d 454 (1992). The damages recoverable under the Wrongful Death Act are not limited solely to the loss of the decedent’s monetary contributions which the survivors have been denied. The Wrongful Death Act permits recovery for the pecuniary value of the loss of services and included among those services is the providing of society and comfort. Machado, supra; Rittenhouse, supra; Slaseman, supra; Walton, supra.

The language in Skoda, supra, cited to by defendants as denying the right to claim damages for loss of companionship in a wrongful death action, does not alter this conclusion. In Skoda, the Pennsylvania Supreme Court, when describing what damages were recoverable under the Wrongful Death Act, stated:

“[T]he administratrix was entitled to recover for the benefit of the daughter and herself as widow the amount of the pecuniary loss they ... would have received from his earnings for their support during the period of his life expectancy and while the family relationship continued between them, but without any allowance for mental suffering, grief, or loss of companionship 411 Pa. at 334, 191 A.2d at 829.

For this statement, the Supreme Court cited to Ferne v. Chadderton, 363 Pa. 191, 69 A.2d 104 (1949). In Ferne, the administratrix brought a claim under the Wrongful Death Act for the benefit of a widow and daughter. The Feme court stated that, under the Wrongful Death Act, the proper measure of recovery was to be “without any allowance for mental suffering, grief, or loss of companionship; in other words, the measure of damages is the value of the decedent’s life to [a party] specified in the statute.” Id. at 197, 69 A.2d at 107. Feme specifically disapproved of the jury’s apportioning the amount of damages under the Wrongful Death Act between the surviving widow and surviving child. The Supreme Court has also referred to this statement from Skoda and Ferne in Papieves v. Kelly, 437 Pa. 373, 263 A.2d 118 (1970). Citing to Feme, the Supreme Court stated in Papieves that “[N]o recovery has been allowed in wrongful death actions for grief and mental suffering resulting from the loss of a decedent.” 437 Pa. at 380, 263 A.2d at 122.

It is clear that the Supreme Court’s statement that no “loss of companionship” can be recovered in a wrongful death action, as used in these cases, refers to a sense of emotional loss connected with the grief and mental suffering caused by the deceased no longer being physically present in the lives of the survivors. Actual companionship in the way of physical activity, which had been provided by the deceased to the survivors, is not found in the facts of these cases. The monetary value of such services is recoverable, or, in the words of Spangler, the loss of the bestowed benefits the deceased had given the survivors is to be appropriately compensated in a wrongful death action as a pecuniary loss.

The court interprets the foregoing line of cases as establishing a distinction between the emotional injuries of grief or mental suffering and actual injury from the loss of society and comfort. The grief and mental suffering is the emotional pain and sense of loss caused by the individual’s death. This is a distinct injury sometimes referred to as “solatium” or injury to feelings that is traceable to an identifiable event and, under our law, not compensable. The loss of society and comfort is different. The loss of society and comfort is the loss of the everyday support that was provided by the decedent. This is a fine distinction the law makes, since both arise from the loss of companionship of a beloved family member. Accordingly, our courts in describing each type of loss have referenced each as including “loss of companionship.” While solatium loss of companionship is not recoverable, it is evident that Pennsylvania courts have specifically held that damages arising from the loss of companionship connected to the benefits associated with society and comfort are recoverable. See Machado, supra; Rittenhouse, supra; Slaseman, supra; Walton, supra.

In the case before us, common sense dictates that the damages suffered by the parents for the loss of their child’s society and comfort may be recovered under the Wrongful Death Statute for the same reasons recognized in Spangler. Like Spangler, the services a child may have provided a parent go beyond that a housekeeper could supply and may involve taking the parents to church, the store, on vacation or various activities, which, were it not for the child’s attention and care, the parent would never enjoy. It is now a common experience that many adult children render valuable services to aging parents and the wrongful death of such a child certainly occasions a loss to their parent. The Wrongful Death Act itself does not exclude a parent from recovering for the damages arising from the death of a child, nor does the Wrongful Death Act limit such a recovery by a parent to those damages arising from the death of a minor child. To the contrary, it permits the named individuals— spouse, children or parents — to recover damages arising out of the person’s death without distinction.

This court cannot ignore the clear mandate of the Wrongful Death Act. Justas Machado, supra, recognizes that a child who has been deprived of parental companionship, comfort, society and guidance by the wrongful death of a parent can be compensated, so to this court must recognize that parents can recover the same type of damages under the Wrongful Death Act upon the loss of a child. If the record can substantiate that Brenda, the decedent, did provide the benefits of companionship, comfort, guidance, solace and protection, to her surviving parents, then the jury will have the responsibility of determining an appropriate monetary award under the Wrongful Death Act irrespective of the fact that such cannot be measured to the last dollar and penny. See Spangler, supra.

None of the appellate court decisions cited by counsel constrain this court’s ruling allowing plaintiff parents to recover the noneconomic loss of the guidance, support, comfort, companionship and society that their child, Brenda Blair, would have provided to them. Although not cited to us by counsel, our independent research has disclosed the cases of Department of Public Welfare v. Schultz, 822 A.2d 876 (Pa. Commw. 2003), and Vrabel v. PennDOT, 844 A.2d 595 (Pa. Commw. 2004). Both Schultz and Vrabel held that, in a suit against the Commonwealth, a parent may not recover for the noneconomic losses associated with the death of their child. However, the holding of Schultz and Vrabel do not prevent the plaintiff parents in our case from pursuing the loss of Brenda’s comfort and society under the Wrongful Death Act.

The specific holding in Schultz, relied upon in Vrabel, stated the following:

“We find no support in our law for the proposition that a parent may recover for the noneconomic loss of the guidance, support, comfort, maintenance, companionship and society of a child under the Wrongful Death Act in the context of sovereign immunity and we conclude as a matter of law that such damages are not recoverable.” 822 A.2d at 878. (emphasis added)

From this language, and from the facts of the case, it is clear that the Commonwealth Court was limiting its holding to when sovereign immunity applies. This is evident when in Vrabel the Commonwealth Court was addressing the argument of plaintiff parents that the holding of Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994), which permitted the present value of services the deceased would have provided to the family to be recovered as wrongful death damages, would permit the recovery under the Wrongful Death Act for the loss of his son’s services and stated that:"Kiser did not involve application of the Sovereign Immunity Act; consequently, the case is inapposite to this controversy where the Sovereign Immunity Act applies.” 844 A.2d at 600. The Commonwealth Court has not ruled that noneconomic loss damages in the form of loss of a child’s comfort and society could not be recovered under the Wrongful Death Act outside the context of sovereign immunity. That question has been left open for another day.

Nor does this court’s ruling stand in opposition or change the Commonwealth’s established law regarding a loss of consortium claim. It has been held that a cause of action based on the loss of consortium is limited to spouses and does not extend to loss of a child’s consortium. Quinn v. Pittsburgh, 243 Pa. 521, 90 A. 353 (1914); Jackson v. Tastykake Inc., 437 Pa. Super. 34, 40, 648 A.2d 1214, 1217 (1994); Schroeder v. Ear, Nose and Throat Associates of Lehigh Valley Inc., 383 Pa. Super. 440, 557 A.2d 21 (1989) (loss of parental and loss of filial consortium are not recoverable). This is because, by definition, there cannot be filial consortium as consortium is “the legal right of one spouse to the company, affection, and assistance of and to sexual relations with the other.” Machado, 804 A.2d at 1244 (emphasis in original) (quoting Webster’s Collegiate Dictionary, 10th Edition (1998)). Permitting the parents to recover for the loss of society and comfort that would have been provided by their deceased child is not done so under a general theory of child consortium, but is allowed as part of the damage recoverable under the Wrongful Death Act. See id. at 1245. While there may be similarities between the types of services recoverable under the Wrongful Death Act and the definition of consortium, they are not one and the same.

Accordingly, the demurrer to the request for damages resulting from the loss of the companionship, society, comfort, guidance, solace and protection Brenda would have provided will be denied.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Turning to the third preliminary objection raised by the defendants, the demurrer to the plaintiffs’ negligent infliction of emotional distress claim will be granted in part and denied in part. “The basis of recovery for a claim of negligent infliction of emotional distress is the traumatic impact of viewing the negligent injury of a close relative.” Love v. Cramer, 414 Pa. Super. 231, 234, 606 A.2d 1175, 1177 (1992). To establish a claim for negligent infliction of emotional distress, the plaintiff must show that: (1) he was located near the scene of the accident as contrasted with one who was a distance away from it; (2) the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Sinn v. Burd, 486 Pa. 146, 170-71, 404 A.2d 672, 685 (1979); Love, 414 Pa. Super, at 234, 606 A.2d at 1177. The plaintiff must experience a sensory and contemporaneous observation of a discrete and identifiable traumatic event to trigger recovery. Love, 414 Pa. Super, at 234, 606 A.2d at 1177. While the plaintiff does not have to know at the time that the alleged conduct, which injured his relative, was negligent, he must be aware at the time that something was wrong or lacking. McElwee v. Leber, 57 D.&C.4th 378, 396 (Lycoming Cty. 2002). The plaintiff must also suffer physical injury in the form of physical manifestations of the emotional distress as a result of witnessing the harm to the close relative. See Love, 414 Pa. Super, at 234, 606 A.2dat 1177.

A fair reading of the amended complaint illustrates two events that the plaintiffs allege trigger recovery— the deterioration of Brenda’s medical condition and her death. It is unclear from the amended complaint who, if any, of the plaintiffs, observed the death of Brenda and how they made that observation. There are no factual allegations that establish this. As such, the demurrer will be granted as to this theory.

As to the deteriorating condition theory, the demurrer is granted only to Joseph Blair’s claim. The amended complaint has pleaded that Joyce Blair and Catherine Winnie were present and observed the medical care rendered by Dr. Mehta to Brenda on June 19 and June 20, 2001. The amended complaint has also pleaded that at the time this care was given they were suspicious and concerned about said care. Further, the amended complaint alleges that they observed the deterioration of Brenda’s condition from June 21, 2001, through June 27,2001. Joyce Blair and Catherine Winnie have pleaded a cause of action for negligent infliction of emotional distress against Dr. Mehta.

Joseph Blair has failed to plead a negligent infliction of emotional distress cause of action. The amended complaint does not allege that he was aware that there was something wrong with the treatment rendered his daughter. The amended complaint does allege that he expressed concern to Drs. Simms, Datta, and Mehta, but it does not say when that concern was expressed so as to indicate that he was aware that there was something wrong with the medical care while Dr. Mehta was administering it. As such, Joseph Blair has failed to state a cause of action for negligent infliction of emotional distress against Dr. Mehta.

Accordingly, the demurrer to the plaintiffs’ negligent infliction of emotional distress claim in Count V of the amended complaint will be granted in part and denied in part.

PUNITIVE DAMAGES

Finally, the court will address the motion to strike the punitive damages claim against Dr. Mehta. “Punitive damages may be awarded for conduct that is the result of the health care provider’s willful or wanton conduct or reckless indifference to the rights of others.” 40 P.S. § 1303.505(a). The purposes of punitive damages are to punish a defendant for his outrageous conduct and to deter others from engaging in similar conduct. Judge Technical Services Inc. v. Clancy, 813 A.2d 879, 888 (Pa.Super. 2002). Punitive damages will not be awarded for ordinary negligence or even gross negligence. Slappo v. J’s Development Associates Inc., 791 A.2d 409, 417 (Pa. Super. 2002).

Punitive damages are permitted only in cases of outrageous behavior. For purposes of punitive damages, outrageous behavior is conduct that shows an evil motive or reckless indifference to the rights of others. Slappo, 791 A.2d at 417. An individual acts recklessly when the “actor knows, or has reason to know,... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk . . . .” Martin v. Johns-Manville Corp., 508 Pa. 154, 171, 494 A.2d 1088, 1097 (1985) (quoting Restatement (Second) of Torts §500, comment a (1965)).

As a whole, the complaint asserts Dr. Mehta was aware of the risk that Brenda Blair’s deteriorating condition and symptoms posed, being aware at least that she was exposed to the risk of the eventual harm she suffered. Yet, despite this awareness, it is alleged Dr. Mehta failed to obtain a surgical consult, but instead discharged Brenda to her home with inadequate care, medication, and precautions necessary to meet the risks posed by her medical condition. The court cannot hold that as a matter of law the allegations made by plaintiffs against Dr. Mehta are insufficient to warrant an award of punitive damages as the pleadings thus far, if true, would permit a jury to infer that the alleged conduct was done with reckless indifference to the rights of Brenda Blair. Whether Dr. Mehta’s alleged conduct was in such blatant disregard of a known risk, as alleged, presents an issue for the trier of fact. Such a holding would now be premature. Therefore, the preliminary objection is denied.

Accordingly, the preliminary objections filed November 7, 2003, are denied in part and granted in part.

ORDER

It is hereby ordered that the preliminary objections of defendants Pankaj Mehta M.D. and Women’s Health Care Associates RC. filed November 7, 2003, are denied in part and granted in part.

The motion to strike subparagraph 69.8 is granted and it is stricken from the amended complaint. The motion to strike is denied in all other respects.

The demurrer to the request for damages resulting from the loss of the companionship, society, comfort, guidance, solace and protection Brenda Blair would have provided is denied.

The demurrer to the plaintiffs’ negligent infliction of emotional distress claim of Joyce Blair and Catherine Winnie based on their witnessing the death of Brenda Blair is granted and the claim is dismissed.

The demurrer to the negligent infliction of emotional distress claim of Joseph Blair is granted and the claim is dismissed.

The demurrer to the negligent infliction of emotional distress claim of Joyce Blair and Catherine Winnie based on their witnessing the deterioration of Brenda Blair’s medical condition is denied.

The motion to strike the punitive damages claim against Dr. Mehta is denied.

Plaintiffs shall have 20 days after notice of this order to file an amended complaint.

The court issued an opinion and order on September 10, 2004 addressing preliminary objections filed by Dr. Mehta and Women’s Healthcare Associates PC. to the second amended complaint. A majority of the preliminary objections were the same as those that were raised against the first amended complaint and addressed in the June 10, 2004 opinion and order. As such, the September 10, 2004 opinion and order is in line with the June 10, 2004 opinion and order.

The court also issued an order modifying the wording of the June 10, 2004 opinion and order to read as set forth supra.

      . In an action brought under 42 Pa.C.S. §8301, the damages are distributable in accordance with the intestacy statute; the plaintiff may also recover “damages for reasonable hospital, nursing, medical, funeral expenses, and expenses of administration necessitated by reason of injuries causing death.” 42 Pa.C.S. §8301(b), (c).

      . That day may soon be at hand. The Pennsylvania Superior Court granted Schultz’ petition for allowance of appeal. Department of Public Welfare v. Schultz, 575 Pa. 165, 835 A.2d 707 (2003). The Supreme Court heard oral arguments in the case on April 13, 2004. 27 PLW 444. A decision by the Supreme Court in the Schultz case will likely focus on the recovery of the loss of a child’s comfort and society in the context of sovereign immunity, but it could also give some guidance as to the recoverability of such noneconomic losses under the WDA.


source: Caselaw Access Project

author: BUCCI, J.,

license: Public Domain

text:
    Fritzinger v. Fritzinger

      C.P. of Berks County,
    no. 96-11328.

      Gregory D. Henry, for plaintiff.

      Peter David Maynard, for defendant.
    June 10, 2004-
   BUCCI, J.,

FINDINGS OF FACT

(1) The plaintiff, Ernest G. Fritzinger (Father), is an adult individual who currently resides at 27 Magnolia Drive, Mertztown, Berks County, Pennsylvania.

(2) Father has been employed as a truck mechanic since 1986.

(3) Defendant, Brenda G. Fritzinger (Mother), is an adult individual who currently resides at 2351 South 10th Street, Apartment 2G, Allentown, Lehigh County, Pennsylvania.

(4) Mother is employed by Swisher Cleaning, where she has worked since September 2003. She works Monday to Friday from 7 a.m. to 3:30 p.m.

(5) Mother and Father reside approximately 20 minutes apart.

(6) Mother and Father were married on March 22, 1975, in Berks County, Pennsylvania.

(7) The parties have five children in common, Adam Fritzinger, bom September 30, 1975, Andy Fritzinger, bom April 23,1978, Bret Fritzinger, bom September 13, 1983, Brad Fritzinger, bom April 15, 1985 and Loni Fritzinger, bom February 27, 1989.

(8) Loni Fritzinger, the subject of this custody action, is the parties’ youngest child and only daughter. The parties’ four older children, who currently reside with Father, are not the subject of this custody action.

(9) The parties separated on or about September 28, 1996.

(10) Since the date of separation, Father has had primary custody of the parties’ five children.

(11) Loni is in the eighth grade at Brandywine School District.

(12) On February 3, 2003, Judge Sprecher issued an order granting primary physical custody to Mother, which was never honored due to the parties’ apparent failure to comply with certain conditions of said order.

(13) One of the conditions set forth in the above order was that Mother secure “first shift” or daytime employment, which she has since done.

(14) Loni has repeatedly expressed her unequivocal desire to reside with Mother. Loni has also articulated to the court her reasons for not wanting to remain with Father, such as feeling out of place in the all-male household and her father’s refusal to accommodate her religious education.

(15) The court finds that the child is mature and intelligent, and able to articulate sound reasons for her preference.

(16) The court finds that both parents are fit, and that Father has successfully raised four sons and his daughter thus far.

(17) Religion is an important issue in this case, and the parents of the minor child do not share the same religious convictions.

(18) Mother attends church on a regular basis with Loni when she has partial physical custody. Father does not attend church and does not take Loni to church when he has custody of her.

(19) The court finds that there is a strong bond between Mother and daughter.

DISCUSSION

Following the parties’ separation, Father was awarded primary physical custody of the parties’ five children. Mother filed a petition to modify in July of 1997, but ultimately an order by stipulation was entered on March 28, 2000, granting Father primary physical custody of the children. Mother filed another petition to modify, and subsequent to that, an order was entered on February 3, 2003, granting Mother primary physical custody, which was never put into effect.

Following the transfer of this case to this court, and following a custody conference in this matter, a trial was held on May 19, 2004, before this court.

In reaching a decision, this court has considered the testimony of the parties and their respective witnesses, an in camera meeting with the minor child, the exhibits admitted into evidence including photographs of the parties’ homes, and the child custody questionnaires submitted to the court.

The standard in all child custody cases is the best interest of the child. “The paramount concern in a child custody case is the best interests of the child, based on a consideration of all factors that legitimately affect the child’s physical, intellectual... and spiritual well-being.” Swope v. Swope, 455 Pa. Super. 587, 591, 689 A.2d 264, 265 (1997).

This court notes that there have been no allegations of neglect, abuse or other such mistreatment of the minor child, Loni Fritzinger. It is clear to the court that both parents love the child and only desire what is best for her. Furthermore, Father should be commended on his efforts to raise four sons and a daughter as a single parent. “In a custody case between fit parents, the test of best interest is initially weighed... as to each parent and a parent will prevail when the weight of evidence shifts even slightly in his/her favor.” Wiseman v. Wall, 718 A.2d 844, 850 (Pa. Super. 1998). This is just such a case.

Where a child is able to articulate a preference for one parent over another, the court will consider that preference in making a determination as to custody. Watters v. Watters, 757 A.2d 966, 969 (Pa. Super. 2000). Where both parents are fit, that preference can be the deciding factor. Meyers v. DiDomenico, 441 Pa. Super. 341, 657 A.2d 956 (1995). “[Wjhere the households of both parents (are) equally suitable, the child’s preference . . . (can)not but tip the evidentiary scale in favor of” the preferred parent. Meyers at 346, 657 A.2d at 958.

The court must, however, carefully evaluate how much weight to give the child’s preference. In doing so, the court will consider several factors. See Witmayer v. Witmayer, 320 Pa. Super. 372, 467 A.2d 371 (1983). The weight to be accorded to a child’s preference varies according to the age, intelligence and maturity of the child as well as the child’s reasons therefore. Id. at 381, 467 A.2d at 376. In the instant case, Loni is 13 years of age and appears to be a mature and thoughtful young woman. Moreover, the court is aware that Loni has made statements consistently for the past two and a half years to the effect that she would prefer to live with her mother. This fact leads the court to believe that her preference to live with Mother is more than a passing fancy or the result of any temporary conflict she may have with her father. Therefore, this court will take Loni’s stated preference to live with Mother into consideration in making the final custody determination.

One of the reasons for Loni’s desire to reside with Mother is the fact that she and Mother share a common bond in practicing their religion, whereas Father has shown little interest in furthering Loni’s spiritual development. Without taking a stance on the specific religious beliefs of the parties, this court may consider the parties’ respective religious practices and how those practices will affect the child. See Commonwealth ex rel. Ackerman v. Ackerman, 204 Pa. Super. 403, 205 A.2d 49 (1964). See also, Rinehimer v. Rinehimer, 336 Pa. Super. 446, 485 A.2d 1166 (1984). “[I]t is legitimate for a court to examine the impact of the parents’ [religious] beliefs on the child.” Morris v. Morris, 271 Pa. Super. 19, 25, 412 A.2d 139, 142 (1979). In fact, since the religious practices of the parties will have an impact on the child, the court should examine them as it would any other factor.

“[E]mbraced within the best interests concept is the stability and consistency of the child’s spiritual inculcation. It would be egregious error for our courts in a custody dispute to scrutinize the ability of the parents to foster the child’s emotional development, their capacity to provide adequate shelter and sustenance, and their relative income, yet not review their respective religious beliefs.” Morris at 24, 412 A.2d at 142.

Loni expressed to the court that she enjoys attending church with her mother, and further articulated a desire to attend religious services on a regular basis. She also stated that she would prefer to attend a Christian school rather than the public school in which she is currently enrolled. She told the court that she does not approve of the way her classmates dress and that she feels different from them. She believes, and the court agrees, that she would feel more comfortable in a parochial or religious school setting. Mother has indicated that, should she be awarded primary physical custody of her daughter, she would place her in a Christian school near her home.

Additionally, Loni expressed her displeasure with certain aspects of the living conditions at her father’s house, particularly the presence of what she considers “pornographic material.” Her older brother testified that he does possess “porno” magazines as well as some movies, and that Loni had seen these things, but that they are now put away in his room.

There are three adult brothers living in the house as well as one brother who is nearly eighteen. Loni has told the court that there are frequent parties and overnight female guests. Father and Loni’s brothers, including the youngest who is underage, consume alcohol regularly. In short, it is clear that Loni’s father and brothers embrace a lifestyle that, while not necessarily harmful to her, makes Loni uncomfortable and unhappy.

It is this court’s determination that it is in Loni Fritzinger’s best interests to reside with her mother. This court is within its discretion in entering an order changing primary physical custody even without any finding of neglect or fault on the part of the father. See Moore v. Moore, 535 Pa. 18, 634 A.2d 163 (1992). The Pennsylvania Supreme Court has specifically held that “custody can be changed without proof of substantial change in circumstances when it is shown that the change is in the best interest of the child.” Moore at 30, 634 A.2d at 169. Further, this court is aided in the decision to award primary physical custody to Mother by the fact that the parties had previously agreed that Mother should have primary physical custody of Loni, as set forth in the order of February 3, 2003, and the fact that Mother has satisfied the condition of said order by securing daytime employment. The court’s decision to grant Mother primary physical custody of the daughter does not reflect poorly on Father’s parenting. He has done a good job of raising his children; however, the court is convinced that the daughter will not flourish if she continues to reside in Father’s male-dominated household. Therefore, for the reasons stated above, the court enters the following order:

CUSTODY ORDER

And now, June 10, 2004, following a custody trial in the above-captioned matter before the undersigned, it is hereby ordered and decreed as follows:

(1) The parties shall share joint legal custody of the minor child Loni Fritzinger, bom February 27, 1989.

(2) Mother shall have primary physical custody of Loni Fritzinger.

(3) Father shall have partial physical custody of Loni Fritzinger on alternating weekends from Friday at 6 p.m. to Sunday at 6 p.m.

(4) Father shall have partial custody of Loni Fritzinger for two non-consecutive weeks during the summer when Loni is not in school.

(5) The parties shall alternate custody of the children on the following holidays: Easter, Memorial Day, Fourth of July, Labor Day and Thanksgiving.

(6) Notwithstanding the foregoing, Mother shall have custody for Mother’s Day and Father shall have custody for Father’s Day each year. Custody shall be from 10 a.m. to 7 p.m.

(7) The parties shall equally share the transportation responsibilities.

(8) The attached appendix shall be made a part of this order [not published herein].


author: JONES II, J.,

text:
    Cargitlada v. Binks Manufacturing Co.

      Richard C. Senker, for plaintiff.

      Richard H. Maurer, for defendant Illinois Tool Works Inc.
    May 26, 2004-
   JONES II, J.,

BACKGROUND

The above-captioned matter was a products liability case stemming from an incident on May 6,1997, in which the safety on a paint sprayer became disengaged while plaintiff was painting a commercial building, causing the spray gun to inject paint into his left middle finger. Said finger ultimately had to be amputated. At the conclusion of a jury trial on June 20, 2001, plaintiff was awarded $150,000. However, on August 17,2001, defendant Binks Sames entered bankruptcy. On September 10, 2001, plaintiff sought to amend the caption of his April 23, 1999 complaint to add Illinois Tool Works (ITW) as a defendant, along with initially-named defendants Binks Manufacturing Company and Binks Sames Corporation. Plaintiff did so, on the alleged basis that several years prior, counsel for Binks Manufacturing/Binks Sames answered an allegation in plaintiff’s complaint stating in pertinent part that each defendant was “now known as ITW Industrial Finishing.” After reviewing plaintiff’s submissions, the motion to amend was granted on the basis that he was merely correcting the name of the party against whom judgment was had. The caption was accordingly amended to read: “Sergio Cargitlada v. Binks Manufacturing Company a/k/a ITW Industrial Finishing and Binks Sames Corporation. ” Although ITW was apparently not notified of the amendment, they learned of the same via subsequent execution proceedings involving one of their distributors in Montgomery County, Pennsylvania, thereby prompting ITW to file a motion to strike judgment. It was after ITW became involved in the matter that this court was made aware of the nature of the misstatement contained in Binks/Binks Sames’ original answer to plaintiff’s complaint. Upon realizing this misstatement in their original answer, counsel for defendants Binks/Binks Sames had prepared and served an amended answer upon plaintiff, which clearly stated that “part of the assets of Binks Sames Inc. were purchased by ITW Industrial Furnishing [sic],” and that “the whole liability claims of Binks Sames Inc., have been assumed by Sames Inc. ” See motion of Illinois Tool Works to open judgment, exhibit E, ¶4. (emphasis added) Said amended answer, although served upon plaintiff, was ultimately rejected by the prothonotary because counsel for defendants never obtained leave of court to file the same. However, in the motion to amend originally brought before this court by plaintiff, he acknowledged receiving an amended answer from defendant Binks, but failed to reference the pertinent language of said amendment. Instead, plaintiff summarized said amended answer for this court as follows:

“Defendant subsequently filed a document entitled ‘Defendant’s [sic] amended answer to complaint’ which only replies to paragraphs 2, 3 and 4 of the complaint. Those allegations admit the corporate identity of the defendants but is [sic ] silent regarding ITW Industrial Finishing. However, defendants failed to obtain permission from plaintiff or leave of court to file said ‘amended’ pleading pursuant to Pa.R.C.P. 1033. Therefore, said ‘amended’ pleading is a nullity. Catanese v. Taormina [and Scirica], [437 Pa. 519, 523,] 263 A.2d 372, 374 (1970).” See plaintiff’s motion to amend caption, ¶5 n.3. (emphasis added)

A review of said amended answer as provided by ITW in their subsequently-filed motion to strike, clearly demonstrated that defendant was not “silent” regarding ITW Industrial Finishing, as plaintiff so contended in his previously-filed motion to amend.

Plaintiff responded to ITW’s petition to strike and in view of the foregoing, this court granted the same November 25, 2002. Plaintiff appealed. On November 25, 2003, this court’s order was reversed by the honorable Superior Court and the matter was remanded so that this court could re-assess ITW’s petition as one to open — as opposed to strike — -judgment. In view of the Superior Court’s decision, ITW re-filed their petition as one to open judgment. On March 23, 2004, this court granted said petition for the reasons set forth herein. The instant appeal followed.

DISCUSSION

Preliminarily, a distinction must be made between an ordinary default judgment and the circumstances involved in this particular case. In this case, ITW was not made a party to plaintiff’s lawsuit until after trial, as opposed to having knowledge of it during the initial pleading stage. As such, they technically did not “default.” However, this court is of the opinion that ITW’s petition to open judgment is subject to the following standard:

“A petition to open a default judgment is an appeal to the equitable powers of the court. The decision to grant or deny a petition to open a default judgment is within the sound discretion of the trial court, and [the appellate court] will not overturn that decision ‘absent a manifest abuse of discretion or error of law.’...

“[The appellate court] may, after a review of the case, find an abuse of discretion if equity clearly favored opening the judgment. . . . ‘An abuse of discretion is not a mere error of judgment, but if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.’ ...

“Generally speaking, a default judgment may be opened if the moving party has (1) promptly filed a petition to open the default judgment, (2) pleaded a meritorious defense to the allegations contained in the complaint, and (3) provided a reasonable excuse or explanation for failing to file a responsive pleading.” Seeger v. First Union National Bank, 836 A.2d 163, 165 (Pa. Super. 2003). (citations omitted)

There is no dispute that ITW promptly filed their initial petition to strike. ITW learned of the judgment against it on May 20, 2002, and filed its petition to strike on June 13,2002. Moreover, although ITW was not directed to file a petition to open judgment for this court’s consideration in light of the appellate court’s opinion, ITW did so on January 20, 2004. In his response to said motion, plaintiff did not contest the fact that ITW acted promptly.

With regard to the second requirement, the fact that ITW was not one in the same company as Binks for purposes of liability clearly constituted a meritorious defense to the allegations contained in plaintiff’s complaint. Inasmuch as ITW did not assume Binks Sames Corporation’s liabilities when they purchased some of their product lines in August of 1998 (the details of which will be further discussed hereinbelow), plaintiff’s proposed amendment to the caption would have had the effect of adding a new party completely out of time. It is well-settled that:

“Although Pa.R.C.P. 1033 permits amendments to the caption at any time, changes effected subsequent to the running of the statute of limitations are restricted to minor rectifications, not substitution of parties. ... Where the proposed change has the effect of adding a new party, it should be prohibited. We held that, ‘ [i]f the proper party was sued but under the wrong designation, the correction will be allowed. However, where the wrong party was sued and the amendment is designed to substitute another, distinct party, it will be disallowed. Important in this determination is whether different assets will be subject to liability by allowing the amendment.’... The imposition of liability on a new and distinct party after the statute of limitations has run is the result to be avoided.” Fredericks v. Sophocles, 831 A.2d 147, 150 (Pa. Super. 2003). (citations omitted) (emphasis added)

Again, the fact that ITW was improperly added as a new party to the suit after the statute of limitations had run, was a wholly meritorious defense to plaintiff’s claims.

With regard to the third and final prong enumerated hereinabove, ITW was never a named party to the underlying suit and could therefore not file a responsive pleading to a lawsuit they were unaware of. This conclusion is based upon ITW’s representations to this court that they did not share counsel with Binks Sames and therefore had no way of knowing about the lawsuit. See motion of Illinois Tool Works to open judgment, exhibit 0-2, pp. 7-8.

Accordingly, ITW satisfied the third prong of the standard set forth hereinabove.

In its petition to open judgment, ITW asserted that the underlying reasons for this court’s decision to grant the previous motion to strike remained valid for purposes of granting their subsequently-filed petition to open judgment. In response, plaintiff conceded that:

“The ‘sole justification’ for amending the caption was Mr. Cohen’s statements in his answer and new matter to the complaint, in paragraphs 2, 3 and 4, that ‘... at the present time Binks is now known as ITW Industrial Finishing.’” See plaintiff’s brief contra Illinois Tool Works’ motion to open judgment, p. 2. (emphasis added)

When deciding ITW’s initially-filed motion to strike, it was brought to this court’s attention that Attorney Cohen: (1) did not represent ITW at the time he provided the “misstatement” in Binks’ answer to plaintiff’s complaint; (2) had not been retained by ITW; (3) had not been paid by ITW; and (4) did not communicate in any manner with ITW about any phase of this matter. In support of these facts, ITW provided this court with the affidavit of Gerald J. Cohen, Esq., which reiterated the same. See motion of Illinois Tool Works to strike judgment, exhibit C; motion of Illinois Tool Works to open judgment, exhibit C. Attorney Cohen’s deposition testimony of July 19, 2002, further reiterated the facts set forth above. Plaintiff did not dispute these facts. Therefore, inasmuch as plaintiff’s “sole justification” for amendment of the caption had been clearly negated by evidence provided by ITW, there existed no justification for allowing the judgment at issue to stand against ITW.

Also contained in plaintiff’s response to ITW’s petition to open judgment was his interpretation of ITW’s “buyout” of Binks Sames. In support of the same, plaintiff provided an extensive discussion, including exhibits from Binks’ website, which he claimed demonstrated that ITW and Binks were one in the same. However, plaintiff made absolutely no mention of the document which controls here: the “Agreement of purchase of sale of assets and stock” between Binks Sames Corporation and ITW. In view of said agreement, the website references upon which plaintiff relied were wholly irrelevant. Moreover, ITW correctly pointed out in their reply to plaintiff’s response, that “plaintiff’s counsel asserts a successor liability theory he did not plead or prove at trial.” See reply brief of Illinois Tool Works Inc. in support of motion to open judgment, p. 1.

In assessing this matter, it is important to note that plaintiff’s injury occurred on May 6,1997 — 1 1/4 years prior to ITW’s acquisition of various Binks Sames’ product lines. Plaintiff’s claim against Binks Sames was resolved via jury verdict on June 20, 2001. Therefore, if ITW contracted with Binks Sames to not assume liabilities such as the instant one, judgment could not have been had against them via an amendment to the caption of plaintiff’s complaint. The following excerpt from the “Agreement of purchase of sale of assets and stock” between Binks Sames Corporation and ITW is dispositive of the issue:

“1.5 Assumption of liabilities
“1.5.1 Subject to the terms and conditions set forth herein, at the closing, the purchaser shall assume and agree to pay, honor and discharge when due all of the following liabilities existing at or arising on or after the closing date (collectively, the ‘assumed liabilities’):
“1.5.1.1 Any and all liabilities, obligations and commitments relating to the Binks business that are (i) reflected on the financial statements (as defined in section 3.5); (ii) incurred or arising under any of the employment security agreements and the stay bonus agreements listed on schedule 3.22 hereto; (iii) incurred after the date of the financial statements in the ordinary course of business consistent with prior practice and in accordance with the terms of this agreement; (iv) liabilities related to product liability claims arising out of the products sold after the closing date . . . .” See motion of Illinois Tool Works to open judgment, exhibit C-l. (emphasis added)

Clearly, the spray gun which caused plaintiff’s injury was sold prior to the agreement closing date of September 30, 1998, as said injury occurred on May 6, 1997. Therefore, ITW did not assume this particular liability when they acquired portions of Binks Sames’ business. In view of this, as well as the fact that plaintiff did not raise, plead or prove a successor liability theory, this court’s decision to grant ITW’s petition to open judgment was wholly proper.

In addition to the discussion involving plaintiff’s counsel’s website-based interpretation of ITW’s buy-out of Binks Sames Corporation, counsel for plaintiff raised an equity argument in his response. First, he claimed that Attorney Cohen’s representations to him regarding Binks now being “known as ITW Industrial Finishing” were assumed to be correct and truthful and should therefore be deemed an admission of fact. However, plaintiff failed to acknowledge two things: (1) he waited until years after receiving this information to amend his caption in accordance therewith; and (2) he received subsequent information from Attorney Cohen which negated his earlier statement upon which plaintiff relied, yet plaintiff chose to disregard these facts and seek amendment anyway, without providing this court with such pertinent information.

In further support of his equity argument, plaintiff stated that “it is unfair to permit ITW to reap the benefits of owning the Binks product line and at the same time, disavow a debt incurred because of a defective item in the Binks product line.” See plaintiff’s brief contra Illinois Tool Works’ motion to open judgment, p. 8. This argument must fail, as a valid contract exists between Binks Sames Corporation and ITW, in which Binks agreed to assume liability related to product liability claims arising out of the products sold prior to September 30, 1998. The fact that Binks declared bankruptcy three years after selling out to ITW has absolutely no bearing upon the agreement that was reached between Binks and ITW on August 31, 1998 (effective, September 30, 1998). Plaintiff claimed that ITW “wanted (and still wants) all of the benefits of owing [sic] the Binks product line without any of the expenses. We therefore submit that ITW does not come into this argument with clean hands.” See plaintiff’s brief contra Illinois Tool Works’ motion to open judgment, p. 12. Aside from not being an accurate assessment of the contract between Binks and ITW, ITW cannot be accused of having “unclean hands” simply because they rightfully dispute a liability that is not theirs. Although unfortunate for plaintiff, this cannot be deemed a basis for imposing liability upon ITW — even under considerations of equity. To do so would serve as a complete inequity to ITW under the circumstances and facts involved herein.

Moreover, plaintiff cannot fault ITW for his mistake...

“[I]t is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period.” Fredericks v. Sophocles, 831 A.2d 147, 151 (Pa. Super. 2003) (citations omitted)

In this case, plaintiff was injured on May 6, 1997. He filed his complaint on April 23, 1999. On September 29, 1999, defendant Binks filed their answer to plaintiff’s complaint, wherein Attorney Cohen mistakenly identified ITW as being the same entity as Binks Sames Inc. However, less than one month later, plaintiff learned of Attorney Cohen’s mistake and was informed of the true nature of ITW’s involvement with the Binks Sames Corporation, via defendant Binks’ amended answer, which was filed on October 20,1999. Therefore, plaintiff knew in October of 1999 that for purposes of the liability involved herein, ITW was not the same entity as defendant Binks Sames. Trial commenced and a verdict was reached in June of 2001. However, it was not until after defendant Binks Sames entered bankruptcy on August 17, 2001, that plaintiff decided to petition this court for amendment, pursuant to incorrect information contained in defendant’s original answer filed two years earlier and regardless of the corrected information plaintiff received shortly after that time. Under these circumstances, plaintiff’s allegation that ITW “does not come into this argument with clean hands,” is clearly unfounded.

Finally, plaintiff argued that equity mandated relief, because “Pennsylvania’s product liability law is the result of our courts’ attempt to fashion an equitable remedy for victims of products that are unsafe for their intended use....” See plaintiff’s brief contra Illinois Tool Works’ motion to open judgment, p. 13. This is true. However, the remedy here is not properly obtained from ITW — it is properly obtained from Binks Sames Corporation. Plaintiff may not conveniently choose the “deep pockets” from which he wishes to recover; there must be a lawful basis for the same. In this case, the legal contract between Binks and ITW prevented plaintiff from recovering judgment against Binks from ITW; regardless of which company might have been in a better position to pay at any particular time.

In view of the foregoing, this court properly granted ITW’s petition to open judgment.

CONCLUSION

For the reasons set forth herein, this court’s order of March 24, 2004, granting ITW’s petition to open judgment, should be affirmed.

      . Counsel for ITW asserted that he never received a copy of plaintiff’s petition to correct caption and was therefore unable to oppose the same. See motion of Illinois Tool Works to strike judgment, ¶22.

      . Nor did counsel seek leave of court to do so after it was rejected by the prothonotary, as counsel believed the document which he had labeled as an “amendment” to his original answer, was in fact only “informational,” to put plaintiff’s counsel on notice that he had sued the improper party. Again, counsel for plaintiff did not dispute the fact that he received this information, or that he was in fact, put on notice.

      . In his deposition testimony, Attorney Cohen was asked who he was retained to represent in the Philadelphia action, to which he responded “The manufacturer of the Binks gun which was designated Binks Manufacturing Company and Binks Sames.” Additionally, when asked if he was retained by ITW, Mr. Cohen responded “Never.” Mr. Cohen was then asked if he ever worked for ITW, to which he similarly responded “Never.” Finally, Mr. Cohen was asked if he had ever spoken with an employee of ITW, to which he again responded, “Never.” See motion of Illinois Tool Works to open judgment, exhibit 0-2, pp. 7-8.

      . Review of the “Assumption of liabilities” portion of the contract between Binks and ITW clearly demonstrates that ITW was willing to assume Binks’ liability under numerous circumstances. However, the circumstances surrounding Mr. Cargitlada’s incident were specifically excluded.


author: LAVELLE, S.J., Specially Presiding,

text:
    Dillman v. Indiana Rolls Inc.

      C.P. of Lehigh County,
    no. 2001-C-1963.

      Mark K. Alternóse, for plaintiffs.

      Thomas C. Sadler Jr., for defendants.

      Brent A. Green, for additional defendant.
    April 21, 2004—
   LAVELLE, S.J., Specially Presiding,

This is a product liability action in which plaintiff seeks damages for injuries he allegedly sustained while using a machine manufactured by Bertsch and Company Inc. Plaintiff has filed a motion for partial summary judgment in which he seeks a declaration that defendant Park Corporation is subject to strict liability in tort as the successor-in-interest to Bertsch.

BACKGROUND

Husband-plaintiff (Dillman) alleges that he sustained personal injuries on February 26, 2000, while using a Bertsch initial pinch type plate bending roll machine. While feeding a piece of metal into the machine, Dillman claims that a glove on his left hand became caught on a burr and his hand was pulled into the rollers, resulting in the partial amputation of several fingers.

The machine in question was manufactured in 1965 by Bertsch and Company Inc. Bertsch was founded in 1879 and began designing and manufacturing initial pinch type plate bending roll machines and other metal fabricating machines in or about the year 1900. In 1984, after experiencing a period of financial difficulty, Bertsch commenced negotiations with Park for the sale of its assets, including its line of bending roll machines. On or about November 30,1984, Park and Bertsch entered into a written agreement for the sale of substantially all of Bertsch’s assets, excluding accounts receivable, for $1.9 million (later reduced to $1.5 million because of title problems relating to Bertsch’s real estate holdings). Among the assets to be sold were Bertsch’s trade names and logos, engineering drawings, customer lists and other records. As a condition of the agreement, Bertsch was required to file a Chapter 11 bankruptcy proceeding and obtain approval of the sale from the Bankruptcy Court. The agreement also required that Bertsch, following consummation of the sale to Park, would cease transacting business and distribute its remaining assets to its creditors.

Bertsch filed its Chapter 11 petition on November 13, 1984, and requested court approval of the asset sale to Park on November 29,1984. William Cook, Park’s vice-president, testified in another product liability action against Park that the provision requiring the bankruptcy proceeding was imposed so that Park could obtain the assets free and clear of the liens and claims of Bertsch’s creditors. “They [Bertsch] decided the only way that they could give us the assets clear was by going into bankruptcy. To put it through to Bankruptcy Court.” Deposition of William Cook, p. 89. (Plaintiffs’ exhibit 14.) Cook further testified that the bankruptcy filing was solely Bertsch’s idea and that Park thought there might be some risk to the proceedings. (Id.)

Bertsch’s counsel in the negotiations with Park were Wayne C. Ponader, Esquire, and John G. Deckard, Esquire. Both attorneys testified by affidavits that by November 10, 1984, the essential terms of the asset purchase agreement had been agreed upon and that one of the conditions of the sale was that Bertsch would file for protection under Chapter 11 of the Bankruptcy Code. (Affidavits of Wayne C. Ponader and John G. Deckard, plaintiffs’ exhibit 15.)

For purposes of the instant motion, the parties entered into a stipulation in which they agreed:

(1) That the machine that injured plaintiff was defective and unsafe;

(2) That various exhibits, including depositions and affidavits, developed during discovery in the case of Rhodes v. Bertsch, a Division of Park Corporation, filed in the United States District Court for the Middle District of Pennsylvania to No. 3:CV-91-1601, be considered as evidence in determining the instant motion. The plaintiff in Rhodes sustained an injury similar to that sustained by Dillman using a Bertsch bending roll machine of similar, if not identical, design to the machine which injured Dillman.

DISCUSSION

The sole issue presented by the instant motion is whether Dillman is, as a matter of law, entitled to summary judgment against Park on the theory that Park is the successor in interest to Bertsch under the “product line” exception to the rule of successor liability.

The Standard for Summary Judgment

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions and affidavits demonstrate that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. “ ‘The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party’.... Summary judgment may be entered only in those cases where the right is clear and free from doubt.” Abbott v. Anchor Glass Container Corp., 758 A.2d 1219, 1223 (Pa. Super. 2000); Schroeder v. PennDOT, 551 Pa. 243, 710 A.2d 23 (1998).

Successor Liability

Under Pennsylvania’s successor liability law, the general rule is that when one company sells or transfers its assets to another company, the successor does not become liable for the debts and liabilities of the predecessor merely because of its acquisition of the predecessor’s assets. Husak v. Berkel Incorporated, 234 Pa. Super. 452, 341 A.2d 174 (1975). Our courts, however, have carved out an exception to this general rule of non-liability in the so-called “product line” exception, which the Superior Court has succinctly stated in the following language:

“[Where] one corporation acquires all or substantially all the manufacturing assets of another corporation, even if exclusively for cash, and undertakes essentially the same manufacturing operation as the selling corporation, the purchasing corporation is strictly liable for injuries caused by defects in units of the same product line, even if previously manufactured and distributed by the selling corporation or its predecessor.” Dawejko v. Jorgensen Steel Co., 290 Pa. Super. 15, 23, 434 A.2d 106, 110 (1981).

In reaching this formulation, the Dawejko court cited the California Supreme Court’s decision in Ray v. Alad Corporation, 19 Cal. 3d 22, 136 Cal. Rptr. 574, 560 P.2d 3 (1977). The Ray court stated that the product line exception would be imposed on the successor corporation if these three circumstances were shown: “(1) the virtual destruction of the plaintiff’s remedies against the original manufacturer by the successor’s acquisition of the business, (2) the successor’s ability to assume the original manufacturer’s risk-spreading rule, and (3) the fairness of requiring the successor to assume a responsibility for defective products that was a burden necessarily attached to the original manufacturer’s good will being enjoyed by the successor in the continued operation of the business.” Dawejko, 290 Pa. Super, at 22-23, 434 A.2d at 109; Ray, 19 Cal. 3d at 30-31, 136 Cal. Rptr. at 579, 560 P.2d at 8-9.

The Dawejko court characterized the Ray factors as advisory only. However, in Hill v. Trailmobile Inc., 412 Pa. Super. 320, 603 A.2d 602.(1992), the Superior Court restated the rule to require proof of all three Ray factors in order to establish the product line exception to the general rule of non-liability. See also, Keselyak v. Reach All Inc., 443 Pa. Super. 71, 660 A.2d 1350 (1995).

Applying the Ray factors to the instant case, we find that the following uncontroverted salient facts are dis-positive of the issue of Park’s successor liability:

(1) Park acquired substantially all of the assets of Bertsch, including all machinery, equipment, inventory, work-in-process and spare parts.

(2) The acquisition of Bertsch’s assets by Park effectively destroyed Dillman’s remedies against Bertsch, inasmuch as the asset purchase agreement required Bertsch to file a Chapter 11 bankruptcy petition and then go out of business. Moreover, at the time of the sale, Bertsch was without product liability insurance and no provisions were made, either in the bankruptcy proceeding or in the asset purchase agreement, for the payment of product liability claims.

(3) Park continued to manufacture and sell the same product line as Bertsch, and held itself out as the “Bertsch Division of Park Corporation.”

(4) Park hired several of Bertsch’s former employees, including sales, engineering, and production personnel, and for a period of time operated the business out of Bertsch’s former premises in Cambridge City, Indiana.

(5) Park acquired all of Bertsch’s business records, including engineering drawings of Bertsch’s product line, patents, copyrights, logos and trade names.

(6) After acquiring Bertsch’s assets, Park wrote to Bertsch’s former dealers, advising them that Bertsch was now a division of Park Corporation and that “[production of new machines, repair parts, and complete machine rebuilds are ongoing with the same quality that has kept this company at the top of the industry for over 115 years.” (Plaintiff’s exhibit 5.) It is evident from Park’s advertising and promotional literature that it sought to capitalize on Bertsch’s name, reputation and good will, and to convey to the general public the impression that Bertsch and Company was an ongoing business enterprise as a division of Park Corporation.

(7) Park is covered by a policy of product liability insurance providing coverage for claims by individuals injured by machines manufactured by its predecessor, including the claims asserted by Dillman.

The foregoing facts, as well as the entire record developed in this case, clearly bring Park squarely within the product line exception. We have no hesitancy in finding that all of the Ray factors have been satisfied.

Park, however, argues that the first Ray factor — destruction of Dillman’s remedies against Bertsch — has not been satisfied because Dillman has not showed the requisite “causation,” i.e. proof that the asset purchase destroyed Dillman’s remedies against Bertsch. Park asserts that there is a genuine issue of material fact as to why Bertsch and Company filed for bankruptcy because “Ray does not apply where there is a good faith dissolution in bankruptcy which is not intended to avoid future tort claims against the predecessor,” citing Nelson v. Tiffany Industries Inc., 778 F.2d 533, 538 (9th Cir. 1985). Park also cites Nelson for the proposition that where the predecessor files bankruptcy “before the successor’s purchase of assets, the essential element of causation will be shown by evidence of a collusive agreement to use bankruptcy proceedings to shield the successor corporation from the predecessor’s liabilities.” Id. at 537.

The Nelson principle has not been adopted by any Pennsylvania court. Even if it were the law of Pennsylvania, however, we would still find Park’s argument unpersuasive since paragraph 3 of the asset purchase agreement, captioned “Chapter 11 proceedings,” clearly provided that:

“It is understood that seller will file an appropriate petition under Chapter 11 of the Bankruptcy Code and that the purchase and sale contemplated under this agreement shall be subject to the approval and consent of the Bankruptcy Court, and the District Court. It is further understood that following the consummation of this sale, seller will distribute all of its assets to its creditors and no longer continue in business.” Plaintiff’s exhibit 18. (emphasis added)

If collusion is, as argued by Park, an essential element of causation, the foregoing provision is the “smoking gun” to support a finding of such collusion.

CONCLUSION

For the reasons set forth above, we will grant plaintiff’s motion for partial summary judgment.

ORDER

And now, April 21, 2004, upon consideration of plaintiff’s motion for partial summary judgment and the briefs and submissions of counsel, including the affidavits, depositions and other exhibits offered by the parties, and after oral argument thereon, it is hereby ordered and decreed that plaintiff’s motion be, and the same hereby is, granted, and defendant Park Corporation is declared to be the successor-in-interest to Bertsch and Company and shall stand in its shoes for purposes of liability to plaintiff for the manufacture, sale and distribution of a defective product by the said Bertsch and Company.

      . Aplate bending roll machine forms plate steel into cylinders and cones.

      . We also note that paragraph 14(d) of the same agreement, under buyer’s conditions of closing, provides that “The Bankruptcy Court for the Southern District of Indiana shall have approved this purchase and sale prior to January 31, 1985,” and further that paragraph 14(e) calls for a final order of confirmation being entered by the United States District Court. It is also noteworthy that the entire transaction, beginning with the initiation of the bankruptcy proceeding and ending with confirmation of the sale by the District Court and execution of the asset purchase agreement, was accomplished within a time period of less than three weeks.


author: CULLEN, J„

text:
    Winter v. Levin

      C.P. of Lancaster County,
    no. CI-99-09754.

      Charles R. Winter, pro se.

      Brad M. Rostolsky, for defendant.
    March 24, 2004
   CULLEN, J„

Before the court for disposition is the motion of Richard M. Levin M.D., defendant, for sanctions due to the failure of Charles R. Winter, plaintiff, to comply with the court’s order of October 9, 2003, directing plaintiff to produce expert witness reports. For the reasons stated below, defendant’s motion will be granted.

PROCEDURAL AND FACTUAL BACKGROUND

This medical malpractice action was commenced on September 21, 1999, when plaintiff, acting pro se, filed a praecipe for writ of summons.

On January 26, 2000, plaintiff, now represented by counsel, filed a complaint to which defendant filed preliminary objections on February 11, 2000. Plaintiff filed an amended complaint on February 25,2000, and defendant filed preliminary objections on March 16, 2000.

On March 20, 2000, plaintiff’s counsel filed a praecipe to reinstate the writ of summons. The writ was served by the sheriff of Lancaster County on March 29, 2000.

On April 3, 2000, plaintiff’s counsel filed a second amended complaint and on April 18, 2000, defendant filed an answer.

On September 25, 2000, defendant filed a motion for summary judgment which was granted on December 7, 2000.

Plaintiff took an appeal and on July 26, 2001, the Superior Court reversed the decision granting summary judgment to defendant. Winter v. Levin, no. 31 MDA 2001, July 26, 2001. Defendant’s petition for allowance of appeal was denied by the Supreme Court on January 10, 2002.

On December 26, 2002, defendant filed a motion to compel plaintiff to produce expert reports. Plaintiff failed to respond, and on May 22, 2003, the court entered an order directing him to file a response to defendant’s interrogatories and request for production of documents within 60 days identifying plaintiff’s expert witnesses and providing copies of their reports.

Plaintiff took no action to comply with this order, and on July 30,2003, defendant filed a motion for sanctions. Correspondence to the court from both parties followed, and a conference was scheduled by the court in an attempt to resolve the issue. After the conference, the court entered an order on October 9, 2003, directing plaintiff to produce expert reports in support of his allegations against defendant within 30 days. The order further provided that if plaintiff again failed to comply, the court would address the motion for sanctions.

On November 7, 2003, plaintiff filed his response to the court’s order.

Dissatisfied with plaintiff’s response, defendant filed a second motion for sanctions on November 14, 2003, based upon plaintiff’s failure to comply with the order of October 9, 2003. Plaintiff responded to this motion by stating that he filed his “brief ” with the prothonotary in a timely manner.

The prothonotary thereafter referred the motion to the court for disposition.

In his second amended complaint, plaintiff alleges that he was suffering from elastosis of the neck and that defendant performed surgery known as a neck lift to correct this condition on December 1, 1997. Plaintiff contends that defendant caused permanent scarring due to defendant’s use of a rigid drain which substantially disfigured and damaged the appearance of plaintiff’s face and neck.

Further, plaintiff alleges that he was not informed that permanent disfigurement was a risk of surgery and, therefore, he did not provide informed consent to the procedure.

In order to prepare his defense, defendant served plaintiff with interrogatories and a request for production of documents on February 15,2000. Plaintiff’s answer was submitted on March 26, 2000. The pertinent questions and answers from the interrogatories are reproduced below:

“(34) Please identify all experts whom plaintiff expects to call at the time of trial.
“Expert has not yet been identified
“(35) Pursuant to Pennsylvania Rules of Civil Procedure 4003.5(a)(1)(b), please state the substance of the facts and opinions to which plaintiff’s expert will testify and a summary of the grounds for each opinion. The facts, opinions and grounds of the expert may be contained in an expert report which may be attached. Such expert’s answer to this interrogatory should be signed by plaintiff’s expert.
“see no. 34.”

The request for production of documents sought related items. The relevant requests and answers are as follows:

“(4) Reports from any and all experts who are expected to testify at trial.
“Answer: Plaintiff has not yet identified experts who are expected to testify....
“(6) A copy of all curriculum vitaes of any experts which you intend to call as an expert witness at the time of trial.
“Answer: See answer to no. 4”

More than two years after the initial request for this information, on December 26, 2002, defendant filed a motion to compel plaintiff to produce any expert reports. Plaintiff failed to respond to the motion, and on May 22, 2003, the court ordered him to file a response to the interrogatories and request for production within 60 days.

Defendant filed a motion for sanctions on July 28, 2003, after plaintiff failed to respond. Because plaintiff was representing himself, the court held a conference to address the need to provide discovery which had been requested approximately three and one-half years earlier. The result of the conference was an order entered October 9, 2003, directing plaintiff to produce expert reports within 30 days.

On November 7, 2003, plaintiff sent a handwritten letter to the court which states in pertinent part:

“This is in reply to your order of October 9,2009 [sic]
“I did not remember, but the attorney that I had prior to the appeal had obtained an expert service who came to the following conclusion:
“ ‘The most severe omission is that Dr. Levin is not able to produce preop pictures taken preop to the cosmetic procedure of the neck lift below the Adams apple. ’ Dr. Hans Wolfgang Losken.”

Based on plaintiff’s response, defendant filed the pending motion for sanctions.

DISCUSSION

To prevail in a medical malpractice action, the plaintiff must establish “(1) a duty owed by the physician to the patient, (2) a breach of duty from the physician to the patient, (3) that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) damages suffered by the patient that were a direct result of that harm.” Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990). The plaintiff is required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the defendant physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered. Id.

Defendant’s initial request was made approximately four years ago and, despite two court orders, plaintiff has failed to comply.

Rule 4019 allows for the imposition of sanctions if a party fails to comply with an order relating to discovery. Pa.R.C.P. 4019. Actions for which sanctions may be imposed include failing to serve answers or sufficient answers to interrogatories, Pa.R.C.P. 4019(a)(l)(i), and failing to make discovery or to obey a court order respecting discovery. Pa.R.C.P. 4019(a)(l)(viii). Sanctions may include an order prohibiting the disobedient party from introducing into evidence designated documents, things or testimony. Pa.R.C.P. 4019(c)(2). This would include an order excluding the testimony of an expert witness. Dion v. Graduate Hospital of University of Pennsylvania, 360 Pa. Super. 416, 520 A.2d 876 (1987); Brophy v. Brizuela, 358 Pa. Super. 400, 517 A.2d 1293 (1986).

The information provided by plaintiff on November 7, 2003, is not an adequate response to the court’s order of October 9, 2003, which directed plaintiff to produce expert reports in support of his allegations against defendant. Rule 4003.5 dealing with discovery of expert testimony allows the responding party to answer interrogatories by stating the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion or to file the report of the expert as the answer or to have the interrogatories answered by the expert. Pa.R.C.P. 4003.5(a) (l)(b). The answer or report must be signed by the expert. Id.

In the present case, the response is not signed by the expert. This, however, is not the only deficiency. The response states only one opinion, i.e., defendant is unable to produce preoperative photographs. The expert does not state why this omission is significant or how, if at all, it relates to defendant’s alleged use of a rigid drain. Further, the response does not attribute the claimed disfigurement of plaintiff’s face and neck to the use of a rigid drain or to any other cause. There is no reference whatsoever to any breach of the standard of care or any expert opinion with respect to causation of the harm of which plaintiff complains. The response, if intended as an expert report, is virtually worthless in providing evidence to establish the elements of plaintiff’s cause of action.

By providing only this brief statement attributed to Dr. Losken, plaintiff has failed to produce expert reports in support of his allegations against defendant as ordered by the court on October 9, 2003.

The violation of the court’s order is clear and requires a determination of the sanction to be imposed. Defendant’s discovery requests have been outstanding for approximately four years. Defendant’s first motion to compel plaintiff to provide this discovery was filed in December 2002. Despite two court orders directing him to do so, plaintiff has yet to answer expert witness interrogatories or produce expert witness reports.

The court has no confidence that plaintiff will provide the requested discovery even if given another opportunity. In his most recent correspondence, plaintiff continues to dwell on the issue of service of the writ of summons which was decided in his favor by the Superior Court in July 2001. The Supreme Court declined to review this decision in January 2002. Plaintiff also keeps reiterating his desire for his “day in court” without any apparent appreciation of the fact that defendant is entitled to his day in court as well and that the Rules of Civil Procedure allow defendant the opportunity to prepare adequately for this event.

Plaintiff’s failure to produce the specified discovery has caused unnecessary delay in the resolution of this case and has precluded defendant from preparing his defense to the allegations in the second amended complaint. Although plaintiff is acting pro se, this status is not a justification for disregarding discovery orders to the prejudice of the opposing party who is represented by counsel.

Plaintiff has had more than ample opportunity to provide the information requested and has not done so. Moreover, the November 7, 2003 letter indicates that plaintiff has devoted no effort to obtaining an expert report or answers to expert witness interrogatories since his counsel withdrew from representation in March 2001.

Under these circumstances, the court concludes that the appropriate sanction is an order precluding plaintiff from introducing any expert testimony which should have been disclosed as directed by the court’s order of October 9, 2003. This sanction is warranted because plaintiff has failed to make a good faith effort to comply with the court’s order and has not offered a credible explanation for his failure. There is no reason to believe that plaintiff will comply if granted additional time. Defendant has been prejudiced by plaintiff’s failure to comply in that the case has been delayed unnecessarily and defendant has been unable to prepare his defense. This unfair prejudice will increase if defendant is forced to trial without any showing that plaintiff can present sufficient evidence to establish a prima facie case. Accordingly, the court enters the following:

ORDER

And now, March 24, 2004, the motion for sanctions of defendant, Richard M. Levin M.D., is granted. Plaintiff, Charles R. Winter, is precluded from offering in evidence at trial any expert testimony or other evidence which should have been provided to defendant pursuant to the court’s order of October 9, 2003.

      . The opinion of the Superior Court in this matter, Winter v. Levin, no. 31 MDA2001, July 26,2001, reflects that plaintiff initially served the writ of summons on defendant by certified mail on September 22, 1999. Id. at 2.

      . The court granted summary judgment on the basis that the statute of limitations barred plaintiff’s claim since the statute was not tolled due to plaintiff’s failure to make a good faith effort to properly serve the writ of summons.

      . While the appeal was pending, plaintiff’s counsel filed a praecipe to withdraw and plaintiff resumed representing himself.

      . In mid July, plaintiff wrote to the court directly regarding this case and requested a continuance due to ill health. Copies of the letters were forwarded by the court to defendant’s counsel and plaintiff was told to cease ex parte contact.

      . The docket does not reflect that plaintiff filed a brief in opposition to the motion for sanctions. It appears that the reference to a “brief ” is to plaintiff’s filing of November 7, 2003.

      . Copies of these interrogatories and the request for production of documents together with plaintiff’s answer are attached to defendant’s motion for sanctions as exhibits A and B.

      . A copy of the motion to compel is attached to defendant’s current motion as exhibit D.

      . A copy of the entire letter is attached to the motion to compel as exhibit G.

      . An exception to the general rule exists when “the matter is so simple or the lack of skill or care is so obvious as to be within the range of experience and comprehension of even non-professional persons.” Hightower-Warren v. Silk, 548 Pa. 459, 463 n.1, 698 A.2d 52, 54 n.1 (1997) (citing Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 471, 437 A.2d 1134, 1137 (1981)).

      . Since plaintiff has failed to supply the curriculum vitae of his expert witness which was sought in the request for production of documents, there is no way to determine if the witness referred to in plaintiff’s response meets the criteria for expert testimony contained in the MCARE Act, 40 Pa.C.S. §1303.512. At the conference in October 2003, the court explained to plaintiff the importance of complying with the statutory criteria for expert testimony.