author: GEORGE, J.,

text:
    Erb v. Greenmount Community Fire Co.

      Ralph D. Oyler, for plaintiffs.

      Michelle D. Wendt, for defendant.
    August 13, 2003
   GEORGE, J.,

In this negligence action, the defendant, Greenmount Community Fire Company Inc. asks the court to grant summary judgment in its favor based upon the immunity protections set forth in the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541. For the reasons set forth below, the motion for summary judgment is granted in part and denied in part.

The plaintiffs, Elizabeth E. Erb and Roland L. Erb, allege that on August 5, 2001, they attended a dinner which Greenmount organized and promoted at the fire hall located at 3095 Emmitsburg Road, Gettysburg, Pennsylvania. While at the function, Elizabeth E. Erb tripped and fell while moving between various tables. As a result of her fall, she claims she suffered a variety of injuries including fractures to her femur and humerus. Erb filed suit against Greenmount alleging the following negligent conduct:

“(a) In placing the tables too close together;
“(b) In placing too many chairs at each table;
“(c) In locating the plaintiff too far from the serving area thus requiring plaintiff to ambulate between chairs and tables;
“(d) In failing to order the serving of the meals in such a way as to allow plaintiff to proceed to the serving area without obstruction;
“(e) In allowing the fire hall to be overcrowded with patrons;
“(f) In failing to properly organize and serve the meals;
“(g) In causing and/or permitting the dangerous, hazardous, and unsafe condition to exist between the tables and chair legs;
“(h) In otherwise failing to exercise that regard and care for the rights and safety of plaintiff required of defendant under the law.” Erb’s complaint, ¶8.

After the close of pleadings, Greenmount moved for summary judgment.

Summary judgment may be granted in cases where the record clearly shows that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rush v. Philadelphia Newspapers Inc., 732 A.2d 648, 650 (Pa. Super. 1999). Only when the facts are so clear that reasonable minds cannot differ may a trial court properly enter summary judgment. Basile v. H & R Block Inc., 563 Pa. 359, 365, 761 A.2d 1115, 1118 (2000). The court must review the record in a light most favorable to the non-moving party accepting as true all well-pleaded facts and giving the non-moving party the benefit of all reasonable inferences that can be drawn from those facts. Winwood v. Bregman, 788 A.2d 983, 984 (Pa. Super. 2001). Greenmount’s motion for summary judgment does not challenge the ability of Erb to establish the elements of negligence but rather raises governmental immunity as an affirmative defense.

Pursuant to the Act, local agencies are shielded from liability for damages on account of any injury to a person or property caused by any act of the local agency or its employees. 42 Pa.C.S. §8541. A “local agency” is defined under the Act as a “government unit other than the Commonwealth government.” 42 Pa.C.S. §8501. Our appellate courts determined that volunteer fire companies are included within the definition of a “local agency” if the fire company was created pursuant to relevant law and is legally recognized as the official fire company for a political subdivision. Kniaz v. Benton Borough, 164 Pa. Commw. 109, 114-15, 642 A.2d 551, 554 (1994). Once this threshold is established, volunteer fire companies are entitled to governmental immunity “even when they are not engaged in fire-fighting activities.” Guinn v. Alburtis Fire Co., 531 Pa. 500, 501, 614 A.2d 218, 220 (1992).

Instantly, Erb concedes that Greenmount is a local agency for the purpose of the Act. Indeed, substantial evidence in the record supports the conclusion that Greenmount is a legally recognized fire company which provides fire protection services for Freedom Township, Adams County, Pennsylvania. See generally, Green-mount’s motion for summary judgment, exhibits A-D.

Concluding that Greenmount is a local agency is not, however, conclusive of the issue before the court. Erb argues that an exception to the Act allows the cause of action to proceed. Specifically, Erb relies upon the “real property” exception to the Act as a basis to justify piercing the shield of governmental immunity.

Erb is correct that there are a number of exceptions to the blanket immunity a local agency enjoys. Among them is an exception related to the care, custody and control of real property. The relevant portion of the Act provides:

“(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
“(3) Real property. — The care, custody or control of real property in the possession of the local agency 42 Pa.C.S. §8542(b)(3).

When applying this exception to the case at bar, it is important to keep in mind our appellate courts’ instruction that the legislature intended the Act to insulate government agencies from liability, thus, the exceptions to immunity are to be narrowly construed against injured plaintiffs. Wilson v. Norristown Area School District, 783 A.2d 871, 875 (Pa. Commw. 2001).

Despite the general admonition to narrowly constme exceptions to the Act, interpretation of the applicability of the real property exception has expanded since the Act’s genesis in 1980. Early appellate cases consistently held that the real property exception was only applicable to those cases where “the artificial condition or defect of the land itself causes the injury . . . .” Mascaro v. Youth Study Center, 514 Pa. 351, 363, 523 A.2d 1118, 1124 (1987) (emphasis in original); Snyder v. Harmon, 522 Pa. 424, 433, 562 A.2d 307, 311 (1989) (noting that applicability of the exception requires that the dangerous condition must derive, originate from or have as its source the real property); Frank v. SEPTA, 96 Pa. Commw. 221, 224-25, 506 A.2d 1015, 1017 (1986) (noting that a negligent act complaint must be directly related to the condition of the property). These cases instructed that analysis of issues related to the real property exception focused on the relationship between the real property and the dangerous condition which resulted in the injury.

As more cases involving the real property exception attracted appellate attention, a standard for analyzing whether the defect arose from the land itself developed. In Canon-McMillan School District v. Bioni, 127 Pa. Commw. 317, 561 A.2d 853 (1989), the Commonwealth Court adopted the Supreme Court’s language in enunciating this standard:

“Chattels used in connection with real estate are of three classes: First, those which are manifestly furniture, as distinguished from improvements, and not peculiarly fitted to the property with which they are used; these always remain personalty. . . . Second, those which are so annexed to the property, that they cannot be removed without material injury to the real estate or to themselves; these are realty.... Third, those which, although physically connected with the real estate, are so affixed as to be removable without destroying or materially injuring the chattels ... , or the property to which they are annexed; these become part of the realty or remain personalty, depending on the intention of the parties at the time of annexation....” Id. at 320, 561 A.2d at 854 (quoting Clayton v. Lienhard, 312 Pa. 433, 436-37, 167 A. 321, 322 (1933)).

Based upon this analysis, appellate courts uniformly held that the real property exception was inapplicable to instances where the alleged negligence stemmed from personal property located on the realty. Kniaz, cited above (concluding fire company immune from suit when picnic table that was not fastened to real property overturned); DeRitis v. City of Philadelphia, 136 Pa. Commw. 244, 582 A.2d 738 (1990) (concluding city immune from suit where temporary bleachers collapsed); Hawkins v. City of Harrisburg, 120 Pa. Commw. 369, 548 A.2d 399 (1988) (concluding city immune from suit based upon improperly erected temporary scaffolding). Moreover, the real property exception, since it relates to the conditions of the realty, was universally held to be unavailable where the alleged negligence consisted of the failure to adequately supervise persons on the property. Frank v. SEPTA, cited above; Davies v. Barnes, 94 Pa. Commw. 145, 503 A.2d 93 (1986); Messina v. Blairsville-Saltsburg School District, 94 Pa. Commw. 100, 503 A.2d 89 (1986).

As recently as 1995, the Pennsylvania Supreme Court adhered to the rule that the real property exception was applicable only where a defect of the land itself caused the injury. Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342 (1995). Finn considered whether immunity applied in situations where injuries to the plaintiff were caused when the plaintiff slipped as a result of a foreign substance deposited on an otherwise properly constructed and designed government sidewalk. In holding the Act barred the plaintiff’s cause of action because the plaintiff’s claim lacked proof that there was a defect “of the sidewalk itself,” id. at 605, 664 A.2d at 1346, the court reasoned that the dangerous condition was “on” the sidewalk, not “of” the sidewalk and, thus, insufficient to trigger an exception to the Act.

This fairly stable appellate authority became unsettled in Grieff v. Reisinger, 548 Pa. 12, 693 A.2d 195 (1997). In Grieff, the Supreme Court considered the applicability of governmental immunity to a claim of negligence for damages suffered as a result of a volunteer fire company’s member pouring paint thinner onto the floor of the fire station. The volunteer was attempting to remove paint from the floor near the kitchen area of the fire station. While doing so, the paint thinner flowed underneath a nearby refrigerator igniting a fire. The flame traveled along the course of the paint thinner to an area where the victim was standing. Flames then engulfed the victim and she sustained severe injuries. The court held that summary judgment on the theory of governmental immunity was inappropriate under those circumstances. Basing its decision on the Act’s plain language, the court reasoned that the volunteer was “caring” for the real property when the negligent act occurred. In reaching this conclusion, the court stated Mascaro and its progeny, which held that a defective real property must cause and not merely facilitate injury, were intended to apply only in situations where third parties caused the harm. Id. at 197. Clearly, Grieff “is significant in that it represents a radical departure from the governmental immunity analysis previously set forth in a long line of appellate decisions . . . .” Hanna v. West Shore School District, 717 A.2d 626, 629 (Pa. Commw. 1998). Subsequent appellate cases interpreting Griejf concluded that applicability of the real property exception no longer requires that “the instrumentality causing harm be ‘of’ the real estate in the sense of being affixed to it.” Martin by and through Martin v. City of Philadelphia, 696 A.2d 909, 912 (Pa. Commw. 1997); Hanna, 111 A.2d at 629 (noting that for governmental immunity purposes it is no longer of any consequence that the injury does not result from a defect in, or condition of, the real property itself).

Following Griejf, the Pennsylvania Supreme Court revisited this area of law in Kilgore v. City of Philadelphia, 553 Pa. 22, 717 A.2d 514 (1998). The Kilgore court confirmed that the Act did not preclude a suit for dangerous conditions created on the local agency’s property through the negligence of the local agency’s agents. Id. at 29, 717 A.2d at 517. In Kilgore, the plaintiffs filed suit against the City of Philadelphia for the city’s failure to remove ice and snow following a snowstorm. They claimed that the real estate exception applied since the real estate was in the care, custody and control of the city. In reversing the trial court’s grant of summary judgment based upon governmental immunity, the court relied upon Crowell v. City of Philadelphia, 531 Pa. 400, 613 A.2d 1178 (1992), for the proposition that the real property exception attached liability to the local agency for the manner in which the agency maintained its property. Based upon these decisions, it seems clear that the Supreme Court has abandoned the principle that applicability of the real property exception requires that the defect be “of” the property.

Navigating through the changing landscape of appellate authority, I find the following direction: (1) the real property exception is applicable where the dangerous condition arises from the real property itself or any permanent attachments to it, Tackett v. Pine Richland School District, 793 A.2d 1022, 1024 (Pa. Commw. 2002); (2) the real property exception is applicable where injuries result from the local agency’s negligent care of the real property, Grieff, cited above; (3) the real property exception applies where the local agency is negligent in keeping the real property safe, Kilgore, cited above; Hanna, cited above; (4) the real property exception does not apply where the damages result solely from a third party’s negligent acts while on the real property of the local agency, Mascaro, cited above; (5) the real property exception does not apply to the negligent supervision of others on the real property, Wilson, 783 A.2d at 876; and (6) the real property exception does not apply to injuries resulting from the dangerous condition of personalty located on, but not attached to, the real property of the local agency, Blocker v. City of Philadelphia, 563 Pa. 559, 562, 763 A.2d 373, 375 (2000). With these lessons in mind and following our appellate courts’ admonition that exceptions to the Act are to be narrowly construed against the plaintiff, I now turn to the specific allegations in Erb’s complaint.

I find that allegations of placing tables too close together and placing too many chairs at each table are similar to the situations in Griejf and Kilgore. Erb’s complaint, M8a, 8b. Thus, the question of whether a dangerous condition exists on real property in Green-mount’s possession is a question of fact for the jury. See Kilgore, 553 Pa. at 29, 717 A.2d at 517 (citing Bendas v. Twp. of White Deer, 531 Pa. 180, 611 A.2d 1184 (1992)). Accordingly, summary judgment in regard to these allegations will be denied.

On the other hand, summary judgment will be granted in regard to the remaining allegations of negligence. Claims related to the dangerous or unsafe condition of the tables and chair legs are directed at the dangerous condition of personalty and, thus, not encompassed within the real property exception. Erb’s complaint, ¶8g; see Blocker, cited above. Greenmount’s alleged failure in properly organizing and serving the meals are similar to the negligent supervision which our appellate courts rejected as a basis for triggering applicability of the real estate exception. Erb’s complaint, fj[8c, 8d and 8f; see generally, Wilson, cited above. Finally, permitting too many patrons on the property relates to the negligent care, custody and control of the patrons rather than the real property. Erb’s complaint, f8e; see Wilson, cited above.

For the foregoing reasons, the attached order is entered.

ORDER

And now, August 13, 2003, defendant Greenmount Community Fire Company’s motion for summary judgment is granted in part and denied in part. Summary judgment is granted in favor of the defendant in regard to paragraphs 8c, 8d, 8e, 8f, 8g and 8h of the plaintiffs’ complaint. The defendant’s motion for summary judgment in regard to paragraphs 8a and 8b of the plaintiffs’ complaint is denied.

      . The complaint indicates that Elizabeth E. Erb and Roland L. Erb are husband and wife. The complaint includes a count by Roland L. Erb seeking reimbursement for medical expenses and loss of companionship he suffered due to his wife’s injuries. Since Roland L. Erb’s claim is dependent upon the success of his wife’s claim, resolution of Elizabeth E. Erb’s negligence claim will be determinative of all causes of action in the complaint. See generally, Darr Construction Co. v. W.C.A.B. (Walker), 552 Pa. 400, 408, 715 A.2d 1075, 1080 (1998).

      . Although the Act specifies eight exceptions to the immunity a local agency enjoys, a thorough review of the Act indicates that the “real property” exception is the only exception having arguable merit. Other exceptions include vehicle liability; care, custody or control of personal property; trees, traffic controls and street lighting; utility service facilities; streets; sidewalks; and care, custody or control of animals. See generally, 42 Pa.C.S. §8542(b). Although at first glance, one might conclude that the exception related to the care, custody or control of personal property is applicable, further reading of the language of that section limits liability to the care, custody or control of the personal property of others and limits recoverable damages to property loss. As such, it is clearly inapplicable to a personal injury claim.

      . Although Finn involved analysis under the sidewalk exception to the Act, 42 Pa.C.S. §8542(b)(7), Finn analyzed the exception by considering case law developed under the real property exception, 42 Pa.C.S. §8542(b)(3). Finn, cited above. This analysis was consistent with appellate authority which essentially recognized the indistinguishable subject matter of these sections. See Kiley by Kiley v. City of Philadelphia, 537 Pa. 502, 645 A.2d 184 (1994). Since Finn, however, the Supreme Court has retreated from an identical interpretation of these two sections. See Jones v. SEPTA, 565 Pa. 211, 223, 772 A.2d 435, 442 (2001); Kilgore v. City of Philadelphia, 553 Pa. 22, 29 n.6, 717 A.2d 514, 518 n.6 (1998).

      . In Crowell, the plaintiffs filed a suit against the city as a result of damages a vehicle accident caused. The plaintiffs alleged that the accident occurred when city employees wrongly placed a traffic control device which directed traffic to turn left. Unfortunately, the road actually turned to the right. The accident occurred when a third-party driver mistakenly followed the traffic control device directly into the lane of travel of the plaintiffs’ vehicle. The plaintiffs pursued an exception to the Act under section 8542(b)(4) (relating to trees, traffic controls and street lighting). The city’s claim that the suit was precluded by immunity focused on the argument that a third-party driver jointly caused the plaintiff’s injury. The city did not contest applicability of the traffic control exception on any other basis. Importantly, in addressing the issue, the Crowell court noted that it granted allocatur for the limited purpose of addressing the applicability of section 8542(b)(4) in light of the Mascaro decision. Crowell, 531 Pa. at 405, 613 A.2d at 1180. Nevertheless, Kilgore cited Crowell for the proposition that the grant of immunity does not protect a local agency from liability for the negligent acts of its employees occurring on city property. Kilgore, 553 Pa. at 27, 717 A.2d at 517. Although this extension of Crowell may go beyond the ruling in that case, I am bound by the appellate authority set forth in Kilgore.

      . In his dissenting opinion in Kilgore, Justice Castille opined:
      “Although Finn .. . was decided less than four years ago, the majority has sub silentio overruled it, and in so doing, has abandoned the principle of stare decisis. As I believe that we are constrained to adhere to the holding of Finn under the principle of stare decisis, I respectfully dissent.” Kilgore, 553 Pa. at 30, 717 A.2d at 518 (Castille, J., dissenting), (emphasis in original)

      . Erb alleges through boilerplate language that Greenmount failed to care for their rights and safety required under law. Erb’s complaint, |8h. This allegation lacks the specificity necessary to fit within any exception under the Act and, therefore, will be stricken. See generally, Wilson, 783 A.2d at 875; Pa.R.C.P. 1019.


source: Caselaw Access Project

author: TERESHKO, J.,

license: Public Domain

text:
    Callari v. Rosenwasser

      Fredric L. Goldfein and Samantha L. Conway, for appellant.

      Martin Goch, for appellee.
    August 7, 2003
   TERESHKO, J.,

Before the court is an appeal taken by defendant-appellant Dr. Robert H. Rosenwasser from an order of the court dated February 5,2003, which denied Dr. Rosenwasser’s motion for post-trial relief.

The facts and procedural history are as follows:

On October 9, 1996, Mr. Angelo Callari underwent brain surgery at Will’s Eye Hospital in Philadelphia, Pennsylvania to cure a brain aneurysm. Dr. Rosenwasser, a neurosurgeon, performed the surgery and also acted as attending physician responsible for Mr. Callari’s postoperative care. (Notes of testimony, 11/4/02 at 154.) After surgery, Mr. Callari developed a fever and increased white blood cell count, prompting Dr. Rosenwasser and his medical consultants to order blood cultures in order to find an infection. (N.T. at 60.) Two blood cultures were taken on October 11, 1996, the first from Mr. Callari’s right arm and the second from the arterial line. (N.T. at 61-63.) Because of his persistent fever and increased white blood cell count, Mr. Callari was given three antibiotics — Vancomycin, Fortaz, and Gentamicin — on October 12,1996. Mr. Callari received these antibiotics until October 15, 1996, when his white blood cell count and his fever began to return to normal. (N.T. at 82.) Dr. Rosenwasser testified that on October 15 some of the catheter lines were removed, which Dr. Rosenwasser believed precipitated the return to normal in both Mr. Callari’s temperature and his white blood cell count. (N.T. at 123.) As a result, Dr. Rosenwasser and his medical consultants concluded that Mr. Callari had a line sepsis caused by an infected catheter.

A third culture was taken on October 16, 1996, from the Swan-Ganz catheter tip. (N.T. at 64.) The results from the first two cultures came back negative on October 17, 1996. (N.T. at 61.) A fourth and a fifth blood culture were taken on October 18,1996, one from the subclavian catheter and the other taken from the patient’s blood, i.e. peripherally. (N.T. at 64-65.) Also on the 18th, after noticing another increase in Mr. Callari’s temperature and white blood cell count, Dr. Rosenwasser placed Mr. Callari back on Vancomycin, Fortaz, and Gentamicin. (N.T. at 134.) A sixth blood culture was taken on October 19,1996, from the CVP catheter tip. (N.T. at 65.) On October 20, 1996, the results of the third culture came back positive for the bacteria enterococcus faecalis. (N.T. at 88.) The results from the fourth and fifth blood cultures came back positive for enterococcus faecalis on October 21, 1996. (See Microbiology final report, P-1 E.) On October 22,1996, Dr. Rosenwasser removed another intravenous catheter line. (N.T. at 126.) On the same day, Mr. Callari’s temperature and his white blood cell count began to return to normal. As a result, Dr. Rosenwasser took Mr. Callari off antibiotics. Although the sixth blood culture also came back positive for enterococcus faecalis on October 23,1996, Dr. Rosenwasser testified that the results stated “isolated from enrichment broth only,” indicating a very low number of bacteria on the catheter tip. (N.T. at 70-71.) On October 29, 1996, Mr. Callari was released from the hospital.

During the next four months, Mr. Callari complained of fatigue and dizziness. He also experienced headaches, lost a significant amount of weight, and continuously gave off a foul odor. (N.T. 11/6/02 at 34-39.) He visited several doctors during this time, including Dr. Rosenwasser. (N.T. at 34-36.) On March 4, 1997, Mr. Callari was hospitalized for acute renal failure at the Pocono Medical Hospital in East Stroudsburg, Pennsylvania. Tests conducted there revealed the existence of enterococcus faecalis. (N.T. 11/4/02 at 178.) Tests also showed that Mr. Callari had vegetation on the surface of the aortic valve necessitating open heart surgery. (N.T. at 179.) Mr. Callari was transferred to St. Luke’s Hospital in Bethlehem, Pennsylvania, where he had emergency heart surgery to replace the aortic valve. (N.T. at 179.) Mr. Callari continued to have a fever. Tests revealed he had infections in various places in his body. After undergoing several more surgical procedures, Mr. Callari passed away from enterococcus faecalis endocarditis on April 6, 1997, at St. Luke’s Hospital.

On March 5, 1999, plaintiff/appellee Mrs. Debra Callari as administratrix of Mr. Angelo Callari’s estate filed this action against Dr. Rosenwasser with a praecipe to issue writ of summons. On June 1,1999, Mrs. Callari filed her complaint. On September 16, 1999 she filed a 16-count amended complaint. She alleged, inter alia, that Dr. Rosenwasser improperly diagnosed and treated Mr. Callari’s infection and also improperly administered antibiotics during Mr. Callari’s stay at Will’s Eye Hospital. (Compl. ¶37.) Mrs. Callari alleged that Dr. Rosenwasser’s negligence caused Mr. Callari’s death months later on April 6, 1997. (Compl. ¶34.)

On October 17, 2002, Dr. Rosenwasser filed a motion in limine asking that Mrs. Callari’s expert witness, Dr. Joseph Cervia, be precluded from testifying. Because Dr. Cervia is board certified in infectious disease and Dr. Rosenwasser is board certified in neurosurgery, Dr. Rosenwasser argues that Dr. Cervia was precluded from testifying under 40 PS. §1303.512 of the Medical Care Availability and Reduction of Error Act (MCare Act), which became effective on May 20, 2002. (Def.’s mot. limine prec. pl.’s expert ¶13.) On November 4, 2002, this court denied Dr. Rosenwasser’s motion in limine to preclude Dr. Cervia’s testimony. In consideration of the MCare Act, this court determined that although Dr. Cervia is not a neurosurgeon, his testimony was directed to the standard of care and causation relating to Dr. Rosenwasser’s postoperative treatment of an infectious disease, and therefore such testimony from an infectious disease expert properly fit within the exceptions enumerated in the MCare Act. (N.T. 11/4/02 at 160-61.)

The trial commenced on November 4, 2002. At trial, Dr. Cervia testified that Dr. Rosenwasser’s treatment of Mr. Callari’s postoperative enterococcus faecalis infection breached the standard of care related to treatment of such an infection. (N.T. at 193.) Specifically, Dr. Cervia testified that Dr. Rosenwasser should have kept Mr. Callad on the antibiotics Vancomycin and Gentamicin continuously for 14 days. (N.T. at 196-97.) Instead, Mr. Callad received two discontinuous antibiotic treatments, each individual treatment lasting roughly three and a half days. Dr. Cervia also testified that Fortaz was not an effective antibiotic for treating an enterococcus faecalis infection. (N.T. at 189.) Furthermore, Dr. Cervia opined that Dr. Rosenwasser should have consulted an infectious disease specialist. (N.T. at 198.) Finally, Dr. Cervia stated that Dr. Rosenwasser placed too much reliance on Mr. Callari’s white blood cell count and fever without allocating more importance to the blood culture results. (N.T. at 194-95.) As a result, Dr. Cervia testified, Mr. Callad was discharged prematurely. (N.T. at 199.) Dr. Cervia testified that Dr. Rosenwasser’s failure to properly treat Mr. Callari’s infection placed Mr. Callad at great risk of harm and acted as a substantial factor in causing the endocarditis condition that ultimately killed Mr. Callad. (N.T. at 201-202.) However, Dr. Cervia did admit that he could not be ceriain whether Dr. Rosenwasser’s treatment failed to eradicate Mr. Callari’s infection. (N.T. at 200-201.)

On November 6, 2002, at the close of Mrs. Callari’s case in chief, Dr. Rosenwasser moved for compulsory nonsuit. Dr. Rosenwasser renewed his argument that Dr. Cervia should be precluded from testifying pursuant to the MCare Act. Dr. Rosenwasser also maintained that Dr. Cervia failed to testify to a reasonable degree of medical certainty that the particular enterococcus faecalis infection he treated in October 1996 caused the enterococcus faecalis endocarditis that killed Mr. Callari. (N.T. 11/6/02 at 57.) This court, in considering the evidence most favorable to the non-moving party, denied Dr. Rosenwasser’s motion for compulsory nonsuit. (N.T. at 63.) On November 7,2002, the trial ended with a unanimous jury verdict in favor of Mrs. Callari, awarding $900,000 in damages. (N.T. 11/7/02 at 156.) On November 14, 2002, Dr. Rosenwasser timely filed his motion for post-trial relief asserting that this court erred in denying his motion in limine to preclude Dr. Cervia’s testimony and also in denying his motion for compulsory nonsuit. On February 5, 2003, upon consideration of Dr. Rosenwasser’s motion for post-trial relief and Mrs. Callari’s response thereto, this court denied Dr. Rosenwasser’s motion.

Appellant raises the following claims in his statement of matters complained of upon appeal pursuant to Pa.R.A.P. 1925(b):

“(1) The trial court erred in denying Dr. Rosenwasser’s motion in limine to preclude Dr. Cervia’s testimony pursuant to section 1303.512 of the MCare Act because Dr. Cervia and Dr. Rosenwasser do not share board certification in the same subspecialty. (2) Trial court erred in overruling Dr. Rosenwasser’s objection to Dr. Cervia’s testimony on the grounds he was precluded under the MCare Act. (3) Dr. Cervia was not qualified under Pennsylvania common law to testify against Dr. Rosenwasser. (4) Trial court erred in denying Dr. Rosenwasser’s motion for compulsory nonsuit and in failing to grant defendant a directed verdict based on the grounds that Dr. Cervia was not qualified to testify as an expert witness against Dr. Rosenwasser because the two doctors do not share board certification in the same subspecialty. (5) Trial court erred in denying Dr. Rosenwasser’s motion for compulsory nonsuit based on the grounds that Dr. Cervia failed to testify to a reasonable degree of medical certainty that Dr. Rosenwasser’s actions or inactions caused the decedent’s death. (6) Dr. Cervia failed to testify to a reasonable degree of medical certainty that the infection that the decedent had in October 1996 caused his death in April 1997. (7) Trial court erred in ruling on Dr. Rosenwasser’s motion for post-trial relief without scheduling oral argument and without giving the parties opportunity to brief the issues raised in the motions.”

LEGAL ARGUMENT

Defendant Dr. Rosenwasser, a neurosurgeon, maintains that section 1303.512 of the MCare Act precludes Dr. Cervia from testifying as a medical expert against him because Dr. Cervia is not board certified by the same or similar approved board as Dr. Rosenwasser. He further contends that Dr. Cervia is also precluded from testifying as a medical expert in this case under Pennsylvania common law. However, because the issue in this case deals with the allegedly negligent diagnosis and treatment of an infection, Dr. Cervia’s expertise in infectious diseases qualifies him as a medical expert in this case under both the MCare Act and under Pennsylvania common law.

Before discussing the issue regarding Dr. Cervia’s qualification pursuant to the MCare Act, this court will address Mrs. Callari’s assertion that the MCare Act does not apply to the instant matter. Because Mrs. Callari initiated this action on March 5, 1999, and the MCare Act did not become effective until May 20,2002, Mrs. Callari argues that applying this Act to the instant matter would impermissibly give it retroactive effect. It is true that absent clear legislative intent to the contrary, statutes are to be construed to operate prospectively only. Gehris v. PennDOT, 471 Pa. 210, 214-15, 369 A.2d 1271, 1273 (1977) (citing Statutory of Construction Act of 1972, 1 Pa.C.S. §1926). However, a statute will not operate retrospectively “merely because some of the facts or conditions upon which its application depends came into existence prior to its enactment.” Id. at 215, 369 A.2d at 1273. Rather, ‘ ‘an Act is not retroactively construed when applied to a condition existing on its effective date even though the condition results from events which occurred prior to that date.” Creighan v. Pittsburgh, 389 Pa. 569, 575, 132 A.2d 867, 871 (1957).

Although Mrs. Callari retained Dr. Cervia prior to the MCare Act becoming effective, Dr. Cervia did not testify until November 4, 2002. Because the MCare Act sets the standards a witness must meet in order to provide expert medical testimony, and such testimony in this case was not given until more than five months after the MCare Act became effective, applying the act to the instant matter would not be retroactive, but rather prospective. Therefore, the MCare Act applies to this case.

Resuming our analyses, Dr. Cervia qualifies as a medical expert in this case under the MCare Act. Section 1303.512 of the MCare Act codifies the standards that a witness must meet in order to offer expert medical testimony against a physician in a medical professional liability action. Section 1303.512 of the MCare Act, in relevant part, states:

“(c) Standard of care — ... an expert testifying as to a physician’s standard of care also must meet the following qualifications:
“(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.
“(2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e).
“(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).
“(d) Care outside specialty — A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that:
“(1) the expert is trained in the diagnosis or treatment of the condition, as applicable; and
“(2) the defendant physician provided care for that condition and such care was not within the physician’s specialty or competence.
“(e) Otherwise adequate training, experience and knowledge — A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period.”

Dr. Cervia falls under section 1303.512(c)(1) inasmuch as the care complained of deals with the care for an infection. When commenting on how the MCare Act applied to this situation, this court made the following observation:

“Court: ... The area under scrutiny here is infectious disease and the treatment of infectious disease, not the specialty or subspecialty of surgical care, so that I thought that though he’s [Dr. Cervia] not a surgeon, the issue here is whether or not the infection was treated properly and thus the proper expert opinion would have been in the area of infectious disease, and I believe that does fit into an exception to the act at this point.” (N.T. 11/4/02 at 162.)

Mrs. Callari’s complaint alleges that Dr. Rosenwasser negligently diagnosed Mr. Callari’s infection, failed to treat it properly with antibiotics, failed to consult an infectious disease specialist, and failed to perform other tasks necessary to properly treat Mr. Callari’s infection. (Compl. ¶37.) Mrs. Callari did not assert that Dr. Rosenwasser was negligent in performing surgery on Mr. Callan. Furthermore, while not opining on the quality of surgery performed by Dr. Rosenwasser, Dr. Cervia did opine that Dr. Rosenwasser breached the standard of care relating to the treatment and diagnosis of an infectious disease. (N.T. at 193-200.) Clearly, the specific standard of care at issue in this case deals with the proper diagnosis and treatment of an infectious disease, and that was the only standard upon which Dr. Cervia opined.

Dr. Rosenwasser argues that because he, as a neurosurgeon, was treating Mr. Callari post-surgically for a brain aneurysm, Dr. Cervia cannot opine on his treatment of Mr. Callari’s infection. However, Dr. Rosenwasser’s own testimony undermines such an argument. Dr. Rosenwasser admitted that he was the attending physician in charge of the postoperative treatment of Mr. Callari’s infection. (N.T. at 49.) Yet he testified during cross-examination that issues relating to his treatment of Mr. Callari’s infection were out of his area of expertise as a neurosurgeon.

“Q: And what was the type of organism that was involved [with Mr. Callari’s infection in October 1996]?
“A: Well, again, it’s out of my area because I’m a neurosurgeon. ... (N.T. 11/4/02 at 51.)...
“Q: Sir, you had mentioned in [your] deposition . . . one of the reasons that you discontinued the antibiotics for this infection was that you were concerned about a super infection?
“A: Well, again, I’ll have to clarify what that is----So the — again I’m speaking of — it’s a little bit out of my area because I’m a neurosurgeon ....” (N.T. at 83-84.)

Clearly, based on Dr. Rosenwasser’s own testimony, the specific care at issue in this case does not fall within the exclusive expertise of a neurosurgeon. Instead, the care complained of deals with the diagnosis and treatment of an infection, and an infectious disease expert would be substantially familiar with such a standard of care.

Dr. Cervia, an infectious disease expert, has substantial familiarity with the applicable standard of care relating to the treatment and diagnosis of an enteroccocus faecalis infection, including treatment of that infection given by a neurosurgeon postoperatively. According to the curriculum vitae Dr. Cervia submitted to the court, he was board certified in infectious diseases since 1990, and remained so during the time Dr. Rosenwasser treated Mr. Callari’s postoperative infection of enterococcus faecalis in October 1996. Dr. Cervia testified that about 90 percent of his practice deals with treating adults suffering from an infectious disease. (N.T at 154.) Dr. Cervia’s teaching position deals mainly with adult infectious diseases, some of his research involves adult infectious diseases, and in 1998 he renewed his board certification in adult infectious disease, which will remain valid through 2010. (N.T. at 154-55.) Dr. Cervia also testified that he gives approximately 100-120 infectious disease consultations per month at Long Island Jewish Medical Center for attending physicians, including neurosurgeons. (N.T. at 164-65.) Some of these consultations also deal with patients diagnosed with enterococcus faecalis. (N.T. at 165.) Because the standard of care at issue in this case involves the postoperative care given by a neurosurgeon treating an enterococcus faecalis infection, Dr. Cervia’s practice in adult infectious diseases, which, as this court noted above, includes assisting neurosurgeons in situations similar to the instant matter, qualifies him as an expert pursuant to section 1303.512(c)(1). The fact that Dr. Rosenwasser was also the surgeon does not limit his responsibility to the surgical care, especially since he assumed responsibility as the attending physician for Mr. Callari’s post-surgical care. (N.T. at 76.)

The circumstances in this case also satisfy the conditions set forth in section 1303.512(d). Pursuant to section 1303.512(d), a court may waive the same subspecialty requirement enumerated in section 1303.512(c)(2) for an expert testifying on the standard of care or treatment of a condition if the court determines that:

“(1) the expert is trained in the diagnosis or treatment of the condition, as applicable; and
“(2) the defendant physician provided care for that condition and such care was not within the physician’s specialty or competence.” Section 1303.512(d)(l)(2).

As noted above, Dr. Cervia is board certified in infectious diseases. He also has experience diagnosing and treating enterococcus faecalis infections. Therefore, this court found that Dr. Cervia’s training in the diagnosis and treatment of infectious diseases, including enterococcus faecalis infections, satisfied section 1303.512(d)(1).

Moreover, this court found Dr. Rosenwasser provided Mr. Callari with care that was not within his specialty and competence, pursuant to section 1303.512(d)(2). Again, Dr. Rosenwasser’s aforementioned testimony acts as persuasive. When addressing issues pertaining to his diagnosis and treatment of Mr. Callari’s infection, Dr. Rosenwasser repeatedly admitted that such issues were “out of my area . . . because it’s not neurosurgery. . . .” (N.T. at 119.) Nevertheless, while acting as the attending physician responsible for Mr. Callari’s post-surgical care, Dr. Rosenwasser diagnosed and treated Mr. Callari’s infection. He did so without the aid of an infectious disease expert, even though it was within his power as the attending physician to request such assistance. (N.T. at 81.) Clearly, as evinced by his own testimony, Dr. Rosenwasser’s diagnosis and treatment of Mr. Callari’s infection was not within his specialty or competence. Therefore, this court found such care satisfied section 1303.512(d)(2).

Moreover, even if the MCare Act does not apply to the instant matter, Dr. Cervia easily qualifies as a competent medical expert under the more liberal Pennsylvania common law. As the Pennsylvania Supreme Court set forth in Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 664 A.2d 525 (1995), the common-law test to be applied when qualifying an expert witness is “whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation.” Miller, 541 Pa. at 480-81, 664 A.2d at 528. (emphasis in original) Dr. Cervia, as a doctor board certified in infectious diseases, clearly has a reasonable pretension to specialized knowledge regarding the treatment and diagnosis of an infectious disease. Therefore, he easily satisfies the Pennsylvania common-law standard for qualifying a witness as a competent expert.

In Poleri v. Salkind, 453 Pa. Super. 159, 683 A.2d 649 (1996), the Superior Court had before it a case where the facts bear close resemblance to the instant matter. There, the plaintiff claimed that the defendants, including a neurosurgeon who was treating her after performing surgery on her back, negligently treated an infection she contracted after surgery. Specifically, she complained that the defendant doctors reacted slowly to her infectious condition and that she had been given the wrong antibiotic therapy. Id. at 164-66, 683 A.2d at 652. The Superior Court affirmed the trial court’s decision to allow an infectious disease expert to testify against the neurosurgeon regarding the standard of care used to treat the plaintiff’s infection. Id. at 168 n.1, 683 A.2d at 654 n.1.

As in Poleri, Mr. Callari suffered an infection following surgery performed by a neurosurgeon, and similar to the facts in Poleri the neurosurgeon treated that infection. Also similar to Poleri, Dr. Cervia, as an infectious disease expert, was allowed to opine on the treatment of a postoperative infection given by a neurosurgeon.

Dr. Rosenwasser’s next argument suggests that Dr. Cervia failed to testify to a reasonable degree of medical certainty that Dr. Rosenwasser’s treatment of Mr. Callari’s infection in October 1996 caused Mr. Callari’s death in April 1997. Specifically, Dr. Rosenwasser argues that because Dr. Cervia admitted he was not certain whether Dr. Rosenwasser’s negligent treatment failed to eradicate Mr. Callari’s infection in October 1996, such testimony fails to establish the necessary causal link between the infection that existed in October to the infection that killed Mr. Callari in April 1997. (N.T. 11/6/02 at 58.) However, Pennsylvania law only requires that the expert witness testify to a reasonable degree of medical certainty that the defendant’s negligence increased the risk of harm to the plaintiff, and Dr. Cervia’s testimony, as will be discussed in detail below, satisfies such a standard.

In Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990), the Supreme Court gave the applicable standard:

“Once there is sufficient testimony to establish that (1) the physician failed to exercise reasonable care, that (2) such failure increased the risk of physical harm to the plaintiff, and (3) such harm did in fact occur, then it is a question properly left to the jury to decide whether the acts or omissions were the proximate cause of the injury.” Mitzelfelt, 526 Pa. at 68, 584 A.2d at 894-95.

In rendering its opinion, the Mitzelfelt court noted that it was the jury’s role, not the medical expert’s role, to balance probabilities and determine whether the defendant’s negligence acted as a substantial factor in bringing about the harm. Id., 526 Pa. at 68, 584 A.2d at 895.

In satisfaction of Mitzelfelt, Dr. Cervia provided sufficient testimony to establish that Dr. Rosenwasser failed to exercise reasonable care in the treatment of Mr. Callari’s infection. Dr. Cervia testified, inter alia, that Dr. Rosenwasser should have kept Mr. Callari on antibiotics for 14 consecutive days, that he should have consulted an infectious disease specialist, and that he should have relied more heavily on the blood culture results. (N.T. 11/4/02 at 193-96.) Such testimony was made with a reasonable degree of medical certainty as necessary under Pennsylvania law. (N.T. at 193.) Therefore, part one of Mitzelfelt’s holding is here satisfied.

Dr. Cervia also gave sufficient testimony to establish that such negligence increased the risk of the harm suffered, as required under part two of Mitzelfelt’s holding. Under direct examination, Dr. Cervia made the following comments:

“Q: What is your opinion as to these different failures that you’ve mentioned to diagnose the condition and treat the condition with antibiotics, what is your opinion as to whether or not that was a substantial factor in causing the conditions that led to Mr. Callari’s death?
“A: I believe that they did contribute, yes.
“Q: As a substantial factor?
“A: Yes, I would say so.
“Q: Did the actions increase the risk of harm that eventually took place?
“A: I would say they did, yes.” (N.T. at 201-202.)

Dr. Cervia also testified that he was making each one of these statements with a reasonable degree of medical certainty. (N.T. at 193.) Therefore, his testimony satisfies the second part of Miltzelfelt’s holding.

Because Mr. Callari did, in fact, suffer from the harm that Dr. Cervia testified he was placed in risk of suffering, this court properly submitted this case to the jury. The same bacteria found in Mr. Callari in October 1996— enterococcus faecalis — can develop into endocarditis. (N.T. at 181.) Tests revealed that he had enterococcus faecalis in his system in March of 1997. (N.T. at 178.) Mr. Callari subsequently died from enterococcus faecalis endocarditis on April 6, 1997. (N.T. at 181.) Although the expert witnesses disagreed on whether the infection in 1996 actually caused the endocarditis that was diagnosed in March 1997, this dispute does not prevent this case from going to the jury. The fact that Dr. Cervia stated that he could not be certain whether Dr. Rosenwasser failed to totally eradicate Mr. Callari’s infection in October 1996 also does not preclude this case from being submitted to the jury. Pursuant to Mitzelfelt, it is the jury’s duty to balance the probabilities as to whether Dr. Rosenwasser’s negligence proximately caused Mr. Callari’s harm and eventual death. Dr. Cervia testified that he believed, with a reasonable degree of medical certainty, that Dr. Rosenwasser’s actions increased the risk of harm to Mr. Callari. Therefore, his testimony satisfied the standard as set forth in Mitzelfelt, and this court, pursuant to Mitzelfelt, submitted this case to the jury.

Finally, Dr. Rosenwasser avers that this court abused its discretion when it ruled on his motion for post-trial relief without scheduling oral argument and without giving the parties the opportunity to brief the issues raised. Pursuant to Pennsylvania Rules of Civil Procedure, Rule 227.1(b)(2), grounds not specified in post-trial motions are deemed waived. Because there is no evidence in the record before this court that suggests Dr. Rosenwasser requested an oral argument or an opportunity to brief the issues raised in his post-trial motions, such requests have been waived. See Fred E. Young Inc. v. Brush Mountain Sportsmen’s Association, 697 A.2d 984, 993 (Pa. Super. 1997) (holding that appellant waives issues regarding a trial court’s decision to decide post-trial motions without oral argument or permitting reply brief after trial if issues are not raised in post-trial motions). Furthermore, because Dr. Rosenwasser did not raise these issues in the lower court and instead is raising these issues for the first time on appeal, he is prevented from doing so pursuant to Pa.R.A.R 302(a).

Moreover, Dr. Rosenwasser did in fact have an opportunity to fully argue the issues he raised in his post-trial motions during trial. He had the opportunity to brief the issue regarding the admissibility of Dr. Cervia as an expert witness in his motion in limine. Dr. Rosenwasser orally argued that issue when he renewed his motion in limine during Dr. Cervia’s voir dire examination. (N.T. at 158-59.) This issue was again revisited when Dr. Rosenwasser made his motion for compulsory nonsuit. (N.T. 11/6/02 at 56-57.) Also during his motion for compulsory nonsuit, Dr. Rosenwasser orally argued that Dr. Cervia failed to testify with a reasonable degree of medical certainty as to causation. (N.T. at 57.) “There is no authority [that] grants a party the right to oral argument after trial.” Young, 697 A.2d at 993. Furthermore, “the filing of trial memoranda is a matter to be exclusively decided by the trial judge.” Young, 697 A.2d at 994. For these reasons, the trial court did not abuse its discretion in not scheduling additional oral arguments or in not allowing the parties to additionally brief the issues raised in Dr. Rosenwasser’s motion for post-trial relief.

CONCLUSION

For the reasons set forth above, this court respectfully requests the Superior Court to affirm its February 3, 2003 denial of defendant/appellant’s motion for post-trial relief.

      . Dr. Rosenwasser testified that “peripheral” meant that this particular blood culture was taken directly from Mr. Callari’s blood and not from an instrument. Therefore, it indicated to Dr. Rosenwasser and his medical consultants that Mr. Callari’s full blood was turning up positive for enterococcus faecalis. (N.T. at 69-70.)

      . Enterococcus faecalis is a “widespread species that is a normal inhabitant of the human intestinal tract; it causes urinary tract infections, infective endocarditis, and bacteremia that is often fatal.” Dorland’s Illustrated Medical Dictionary 559 (28th ed. 1994).

      . In Poleri, the Superior Court ratified the trial court’s decision to allow an infectious disease expert to opine on the care given by the neurosurgeon because of the apparent overlap that existed between the specialties when treating an infectious disease. Id. at 166, 683 A.2d at 653.


author: BALDWIN, J.,

text:
    Colangeli v. Pallone

      Michael Balzarini, for plaintiff.

      John A. Bass, for defendant.
    August 7, 2003
   BALDWIN, J.,

Plaintiff Gary Colangeli appeals the judgment entered after a jury trial in favor of defendants in his professional negligence action against John Pallone, Doctor of Chiropractic, concerning the alleged negligent treatment of Mr. Colangeli and against the remaining defendants, which Mr. Colangeli claimed were vicariously liable to him because they are employers of Dr. Pallone.

Mr. Colangeli underwent treatment with Dr. Pallone in January of 1999 due to chronic pain in his lower back. He claimed that Dr. Pallone’s treatment, which spanned several months, caused him significant permanent injury, including a herniation in his lower spine which required surgery. Mr. Colangeli brought this suit contending that Dr. Pallone was negligent in administering manipulations to Mr. Colangeli in light of his preexisting condition and that Dr. Pallone was negligent in continuing this treatment after Mr. Colangeli’s symptoms worsened during the course of his treatment. After trial, a jury returned a verdict in favor of defendants and against plaintiff. Judgment was entered and this appeal followed.

Plaintiff argues that this court erred at trial in the following ways: (1) in allowing defendants’ liability expert, Gary Tarola D.C., to offer expert opinion testimony on the existence of “two schools of chiropractic thought” because this defense was not pled in defendants’ answer and new matter, was not raised in defendants’ pretrial statement and was not raised in defendants’ expert report; (2) in charging the jury on the “two schools of thought” doctrine when the evidence submitted by defendants on the doctrine was insufficient as a matter of law; (3) in charging the jury on the “two schools of thought” doctrine when this doctrine is not applicable to the standard of chiropractic care in this case; (4) in charging the jury on the “two schools of thought” doctrine without instructing the jury that the defendants have the burden of proving the defense; (5) in refusing to charge the jury with plaintiff’s requested point for charge number eight, which informed the jury that Dr. Pallone owed a duty to conduct adequate testing to arrive at a diagnosis and to select a course of treatment for the patient and that Dr. Pallone could be found negligent for breach of these duties; (6) in charging the jury with a misleading definition of “professional negligence” in that the jury was instructed that plaintiff could not recover in this case unless plaintiff produced expert testimony establishing that the defendants did not exercise the “skill of chiropractors as employed by other practitioners in like areas of chiropractic medicine”; (7) in charging the jury that if it found plaintiff contributorily negligent and that such negligence was a substantial factor in bringing about plaintiff’s harm then the verdict must be for the defendants and because the trial court’s subsequent curative instruction was ineffective and inadequate to correct the error; and (8) in charging the jury on the issue of contributory negligence when the defendants failed to produce sufficient evidence to warrant a charge on this point because there was no medical evidence offered by defendants and the jury’s consideration of the issue amounted to complete speculation.

Each of these claims of error is addressed below. First, plaintiff argues that this court erred in allowing defendants’ liability expert, Gary Taróla D.C., to offer expert opinion testimony on the existence of the “two schools of chiropractic thought,” where this defense was not pled in defendants’ answer and new matter, was not raised in defendants’ pretrial statement and was not raised in defendants’ expert report. The “two schools of thought” doctrine as stated in a case involving the question of a medical doctor’s malpractice is as follows:

“Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.” Jones v. Chidester, 531 Pa. 31, 40, 610 A.2d 964, 969 (1992).

The purpose of the doctrine is to provide “an absolute defense to a claim of negligence when it is determined that the prescribed treatment or procedure has been approved by one group of medical experts even though an alternate school of thought recommends another approach, or it is agreed among experts that alternative treatments and practices are acceptable.” Id. at 33, 610 A.2d at 965. The justification for the doctrine is that a jury should not be required to judge which school of thought is the best when medical practitioners themselves differ on the point. Id. at 37, 610 A.2d at 967. However, there must be a “considerable number” of medical experts to be sufficient to create another school of thought, although not necessarily a majority. Id. at 40, 610 A.2d at 969.

In this case, it was plaintiff’s theory of the case that Dr. Pallone was negligent in choosing to perform side posture spinal manipulation treatment to Mr. Colangeli in light of his symptoms and the condition of his spinal discs. In support of this theory, plaintiff offered the expert testimony of Dr. James H. Winer D.C., who testified that Dr. Pallone caused Mr. Colangeli’s injuries by a twisting manipulation and that side posture manipulation should not be used on anyone with a suspected disc problem. See Trial Transcript at 205, 224, 229-30; also see Dr. Winer’s expert report (stating that side posture manipulation when done improperly can put intolerable pressure on discs). It was defendants’ theory of the case that Dr. Pallone’s treatment, including manipulative therapy, was reasonable and appropriate and within the standard of care accepted by a majority of chiropractors. See the testimony of Gary A. Taróla D.C. and Dr. Tarola’s expert report.

The first time the differing expert opinions in this case were arguably characterized as stating two schools of thought was at trial by plaintiff’s expert, Dr. Winer, in the following exchange during the cross-examination of Dr. Winer:

“Q. Is chiropractic manipulation contraindicated for everyone with degenerative disk disease?
“A. As I mentioned in my earlier testimony there are many different systems of chiropractic. All depends which type chiropractic treatments we are talking about.” TT at 238 [sic].

Dr. Winer then admitted that there is a recognized school of thought supporting such spinal manipulations on those with degenerative disc disease. TT at 239-40, 242. Defendants’ counsel later asked defendants’ expert, Dr. Tarola, during his direct examination whether there was a recognized school of thought on performing side posture spinal manipulations on someone like Mr. Colangeli. TT at 468-69. It was then that plaintiff’s counsel objected, for the first time, on the grounds that the two schools of thought doctrine does not apply to a chiropractic case and if it did apply it must be stated in an expert report. TT at 469. This court overruled plaintiff’s objections and allowed Dr. Tarola to testify that side spinal manipulations are a majority practice and that this technique was appropriately used on Mr. Colangeli. TT at 472-73, 468-96.

Dr. Tarola’s testimony was properly admitted into evidence at trial. Plaintiff argues that it was error to admit Dr. Tarola’s testimony because the defendants did not plead the two schools of thought doctrine in their answer and new matter. At trial, plaintiff’s counsel did not object to the “two schools of thought” characterization of the expert testimony on the basis that this doctrine was not pled and thus this ground is waived. Brown v. Philadelphia Tribune Co., 447 Pa. Super. 52, 58, 668 A.2d 159, 162 (1995) (appellants must make timely and specific objections at trial to preserve an issue for appeal). Moreover, defendants are not required to plead the two schools of thought defense because it is not an affirmative defense. See Voorhees v. Trustees of the University of Pennsylvania, 33 Phila. 302, 331 (1997) (recognizing that the two schools of thought doctrine is not an affirmative defense but is a label as to a type of evidence offered in a case when a medical practitioner is alleged to have deviated from a standard of care), affirmed, 718 A.2d 869 (Pa. Super. 1998) (mem.).

Plaintiff argues that defendants were not entitled to a jury instruction on the two schools of thought defense when the defense was not raised in defendants’ pretrial statement and because the evidence submitted by defendants was insufficient to warrant the charge. In fact, the substance of defendants’ position at trial was raised in defendants’ expert report. It was always defendants’ theory of the case that Dr. Pallone abided by the standard of care. See defendants’ expert report in which Dr. Tarola concludes the following: “The treatment methods provided by Dr. Pallone including manipulative therapy was [sic] reasonable, appropriate, within the standard of care and in fact preferred by most chiropractic and medical authorities for the condition described.” At trial, defendants’ expert testified not that Dr. Pallone abided by a different school of thought but that Dr. Pallone followed the preferred treatment method and that plaintiff’s expert was “wrong.” TT at 528. Defendants’ expert also testified that he did not know if there were “schools of thought” on the subject, only a split of opinion among chiropractors as to whether spinal manipulations were safe for all patients with herniated discs but that authorities confirm that spinal manipulations can be used safely and often effectively on people with disc herniations. See TT at 537-38.

The jury was instructed on the two schools of thought doctrine because plaintiff’s expert purported to characterize Dr. Pallone’s course of treatment as a recognized but secondary school of thought. The testimony in this case does not present the typical situation where a jury is instructed on the two schools of thought doctrine because the defendants were not trying to prove the validity of a minority but respected course of treatment. While the plaintiff’s expert did not testify that a considerable number of respected experts abided by the course of treatment applied by Dr. Pallone in this case, the defendants’ expert testified that the course of treatment at issue was the course of treatment preferred by a majority of chiropractors. Therefore, plaintiff was certainly not prejudiced by the instruction in this case and plaintiff has not claimed that he was prejudiced by the instruction.

Next, plaintiff argues that the two schools of thought doctrine only applies to medical doctors and not to chiropractors. This court disagrees. The doctrine would certainly apply to chiropractors because the reasoning behind the doctrine is not restricted to medical doctors but would apply to all medical professionals who exercise judgment in the course of treating patients. See Neilson v. Ruoti, 45 D.&C.4th 518 (Bucks Cty. 1999) (holding that the doctrine applies in a malpractice action against a physical therapist); see also, Sinclair by Sinclair v. Block, 534 Pa. 563, 571, 633 A.2d 1137, 1141 (1993) (referring to the two schools doctrine as applicable in cases involving “medical experts”); Jones, supra (from time to time referring to the two schools doctrine as applicable in cases involving “medical practitioners” or “medical experts”).

Plaintiff then argues this court erred in charging the jury on the two schools of thought doctrine without instructing the jury that the defendants have the burden of proving the defense. It is true that the burden of proving the doctrine falls on the defendant but the burden should not prove “burdensome.” Gala v. Hamilton, 552 Pa. 466, 715 A.2d 1108, 1110-11 (1998); Jones, 531 Pa. at 40, 610 A.2d at 969. “Once the expert states the factual reasons to support his claim that there is a considerable number of professionals who agree with the treatment employed by the defendant, there is sufficient evidence to warrant an instruction to the jury on the two ‘schools of thought.’ ” Id. For example, in Gala v. Hamilton, the Supreme Court stated that a defendant need not provide medical literature to satisfy its burden of raising sufficient evidence to warrant the jury instmetion because “[ljimiting evidence to medical literature would have the effect of preventing expert witnesses from testifying to the existence of a school of thought based on their experience as practitioners and on information they obtained during their medical training and while attending lectures and other educational programs.” Gala, 715 A.2d at 1111.

Again, it was the defendants’ position that plaintiff’s expert was in error as to the proper standard of chiropractic care in this case and not that Dr. Pallone recognized the standard of care presented by plaintiff’s expert but followed a different course of treatment supported by a considerable number of respected chiropractors. Thus, by their evidence, the defendants were challenging the plaintiff’s evidence on the standard of care as opposed to offering another. Accordingly, the burden of proof never shifted to the defendants on this point. Moreover, plaintiff failed to preserve this claim of error in his objections to the jury charge at trial and, thus, this claim of error has been waived. See Cipriani v. Sun Pipe Line Co., 393 Pa. Super. 471, 574 A.2d 706, 711 (1990) (“unless a specific exception has been taken to an alleged error in the trial court’s instructions, the alleged error will be deemed waived and will not be considered by [a] reviewing court”), (citations omitted)

Plaintiff argues that this court erred in refusing to charge the jury with plaintiff’s requested charge number eight which informed the jury that Dr. Pallone owed a duty to conduct adequate testing to arrive at a diagnosis and to select a course of treatment for the patient and that Dr. Pallone could be found negligent for breach of that duty. Plaintiff had many theories as to how Dr. Pallone breached his standard of care and plaintiff offered these theories through their expert testimony. The court found that the general charge for professional negligence was sufficient to explain to the jury the standard of conduct applicable to Dr. Pallone in connection with the manner in which he treated Mr. Colangeli. “It is well settled that a trial judge may properly refuse a litigant’s requested instructions when the substance thereof had been adequately covered in the general charge.” Perigo v. Deegan, 288 Pa. Super. 93, 98-99, 431 A.2d 303, 306 (1981). Thus, this claim of error is without merit.

Plaintiff claims this court erred in charging the jury with a misleading definition of professional negligence in that the jury was instructed that plaintiff could not recover in this case unless plaintiff produced expert testimony establishing that the defendants did not exercise the skill of chiropractors as employed by other practitioners in like areas of chiropractic medicine. The court fails to see any error in this statement of law. Compare the standard of care as enunciated by the Superior Court in Joyce v. Boulevard Physical Therapy & Rehabilitation Center P.C., 694 A.2d 648 (Pa. Super. 1997), a professional malpractice case concerning the acts of a physician, in which the court held the following:

“A physician who is not a specialist is required to possess and employ in the treatment of a patient the skill and knowledge usually possessed by physicians in the same or a similar locality, giving due regard to the advanced state of the profession at the time of the treatment; and in employing the required skill and knowledge he is also required to exercise the care and judgment of a reasonable man.” Id. at 654. (citations omitted)

Plaintiff claims this court erred in charging the jury that if it found plaintiff contributorily negligent and that such negligence was a substantial factor bringing about plaintiff’s harm then the verdict must be for the defendants and the trial court’s subsequent curative instruction was ineffective and inadequate to correct the error. After the jury charge, plaintiff objected to the charge on this ground and the court sustained the objection and provided a curative instruction, stating in relevant part as follows:

“If your answer is in the affirmative as to both questions, mainly that Mr. Colangeli was contributorily negligent and that his conduct was a substantial factor in causing the injuries, then you must make a determination of the amount of causal negligence on both parties.” TT 749-50, 752-53.

This curative instruction corrected any error in the court’s original charge. Additionally, the jury found that Dr. Pallone was not negligent in this case and, thus, the jury never reached the issue of plaintiff’s contributory negligence; accordingly, plaintiff could not have been prejudiced by this alleged error. See Price v. Guy, 558 Pa. 42, 735 A.2d 668, 672-73 (1999) (holding that anew trial is warranted only when the alleged error was prejudicial to the complaining party).

Plaintiff also claims that this court erred in instructing the jury on contributory negligence because the defendants failed to produce sufficient evidence to warrant a charge. Again, because the jury did not reach the question of plaintiff’s contributory negligence, plaintiff could not have been prejudiced by this alleged error. See Price, supra. Moreover, “[wjhen there is any evidence of contributory negligence, the trial court must instruct the jury appropriately, no matter how strong the evidence to the contrary may be.” Levine v. Rosen, 394 Pa. Super. 178, 182, 575 A.2d 579, 580-81 (1990), affirmed on other grounds, 532 Pa. 512, 616 A.2d 623 (1992). There is no requirement that defendants provide medical testimony in support of the defense of contributory negligence in all cases and in this case it was not a necessity. Defendants argued that Mr. Colangeli was contributorily negligent in not informing Dr. Pallone of Mr. Colangeli’s complete medical history thereby allowing Dr. Pallone to make decisions based only on the history given. Thus, the court properly charged the jury on the issue of contributory negligence. Compare Levine v. Rosen, supra (holding in a medical malpractice case that a jury instruction on the issue of the plaintiff’s contributory negligence was appropriate when there was some evidence that the plaintiff did not report all of her symptoms to her doctor).

Accordingly and for the reasons stated herein, the judgment against plaintiff and in favor of defendants should be affirmed.


author: LAWLER, J,

text:
    Stack v. Karavan Trailers Inc.

      James A. Downey III, for plaintiff.

      Alan T. Silko, for defendants.
    July 30, 2003
   LAWLER, J,

Plaintiff David Stack appeals the order of this court dated June 19,2003, granting defendant Highway Marine’s petition to vacate the arbitration award of October 15, 2002, and for entry of judgment. Pursuant to Pa.R.C.P. 1925(b), plaintiff has submitted a concise statement of matters complained of on appeal. This opinion is filed in accordance with Pa.R.C.P. 1925(a).

BACKGROUND

Plaintiff’s lawsuit alleged negligence in the design, manufacture and sale of a boat trailer and a Starcraft utility boat. Defendant Karavan Trailers Inc. manufactured and sold the boat trailer, and defendant Highway Marine Service Inc. and Highway Marine & RV sold the trailer with the boat. Plaintiff alleged that the boat and trailer were not compatible, and as a result plaintiff suffered severe injuries when the boat rotated on the trailer as plaintiff attempted to exit the boat. Plaintiff sought monetary damages for these injuries.

In lieu of a jury trial, the parties agreed to submit to binding high/low arbitration before Thomas B. Rutter, Esquire, through ADR Options Inc. Arbitration agreement and stipulation 7/25/02. The parties agreed that the arbitration would be final, binding, and would be governed by common-law principles. Arbitration agreement and stipulation 7/25/02. Just prior to arbitration, plaintiff and defendant Karavan agreed to a settlement in the amount of $150,000 in exchange for a joint tort-feasors’ release. Plaintiff and defendant Highway Marine executed a high/low agreement, which agreed to a low of $50,000 and a high of $1,000,000 prior to the arbitration. The arbitration between plaintiff and defendant Highway Marine took place on October 4,2002, in front of Arbitrator Rutter. After receiving evidence and testimony from both sides, Arbitrator Rutter signed and issued a final, written arbitration decision and award on October 7, 2002. The initial decision awarded plaintiff the gross sum of $2,500,000 with a total molded award of $1,000,000 as per the agreement of the parties. Arbitrator Rutter’s award attributed 25 percent causal negligence to defendant Highway Marine, 50 percent to defendant Karavan, and 25 percent to plaintiff.

This appeal concerns a second, corrected and clarified arbitration decision and award issued by Arbitrator Rutter on October 15, 2002. Following the initial award issued on October 7, 2002, defendant Highway Marine tendered a release in the amount of $625,000 to counsel for plaintiff. Keenan letter 10/10/02. Plaintiff’s counsel refused to execute the release. Instead, counsel for plaintiff at the time, S. Richard Klinges III, had his assistant place a call to Michael Carney, president of ADR Options Inc., on October 15,2002 seeking a clarification of the damages that plaintiff was entitled to. Klinges depo., 1/14/03, pp. 13-14.

Arbitrator Rutter testified that upon receiving the message about Mr. Klinges’ concerns, he had the file pulled and reviewed his findings. Rutter depo., 12/16/02, pp. 26-28. Upon reviewing the file, Arbitrator Rutter discovered that the initial arbitration decision and award issued on October 7, 2002 did not reflect his true findings as set forth in his handwritten notes. Apparently when Mr. Carney typed out Arbitrator Rutter’s handwritten notes, he had transposed the amounts of liability attributable to each defendant. In essence, Arbitrator Rutter’s notes attributed 50 percent causal negligence to defendant Highway Marine and 25 percent causal negligence to defendant Karavan, but the final written award signed by Arbitrator Rutter on October 7, 2002 set forth an opposite finding.

Arbitrator Rutter placed an ex parte call to plaintiff’s counsel on October 15, 2002, advising him that the percentages of fault had been incorrectly transcribed. Klinges depo., 1/14/03, pp. 16-17. Arbitrator Rutter admitted that when the initial final award was presented to him for his signature, he did not read the award and compare it with his handwritten findings before signing it. Rutter depo. 12/16/02, p. 40. Pursuant to this conversation, plaintiff’s counsel wrote a letter to Arbitrator Rutter, requesting clarification of the award against the defendant. Klinges letter 10/15/02. No mention of the ex parte conversation between Mr. Klinges and Arbitrator Rutter was made in the letter.

On October 15, 2002, Arbitrator Rutter unilaterally amended his final decision and award, issuing a corrected and clarified arbitration award that reflected the findings he made in his handwritten notes. At no time prior to Arbitrator Rutter’s issuance of the subsequent award was defendant Highway Marine notified or consulted about the possibility of a mistake in the initial decision. Rutter depo., 12/16/02, pp. 26-28. The only explanation defendant Highway Marine received for the second award was that Mr. Carney, who is not an attorney, second-guessed himself when transcribing Arbitrator Rutter’s findings. Carney depo., 12/16/02, pp.13-16.

Defendant Highway Marine filed a petition to vacate the arbitration award of October 15, 2002 and for the entry of judgment on the October 7, 2002 award on November 14, 2002. Upon careful consideration of defendant’s petition and plaintiff’s response thereto, this court issued an order dated June 19, 2003, granting defendant Highway Marine’s petition. The June 19, 2003 order vacated the arbitration award of October 15,2002, and entered judgment in favor of plaintiff in the amount of $625,000 in accordance with the arbitration decision and award issued by the arbitrator on October 7, 2002. Plaintiff then filed this appeal.

ISSUES ON APPEAL

The plaintiff’s statement of matters complained of on appeal alleges eight points of error. However, the issues on appeal are more accurately and more succinctly stated as follows:

“(1) Whether Arbitrator Rutter had the authority to issue a corrected and clarified arbitration award following a final, written arbitration decision and award.
“(2) Whether this court abused its discretion in vacating the arbitrator’s clarified award and entering judgment in accordance with the arbitrator’s first final, written arbitration award.”

DISCUSSION

1. Arbitrator Rutter Lacked the Authority To Issue a Second, Clarified Arbitration Award

Upon considering the merits of the case and issuing a final written arbitration award, Arbitrator Rutter’s authority to review or supplement his initial determination ceased. Arbitrator Rutter exceeded his power when he issued the October 15,2002 corrected and clarified arbitration award, necessitating this court’s vacatur and reinstatement of the initial arbitration award of October 7, 2002.

The parties to the instant litigation agreed to submit to binding, common-law arbitration. Arbitration agreement and stipulation 7/25/02. Pursuant to the common-law functus officio doctrine, following the entry of an arbitration award an arbitrator is without any further official authority with respect to the case. Martino v. W.C.A.B. (Peco Energy), 813 A.2d 945, 947-48 (Pa. Commw. 2002). Once an arbitrator has considered the merits of the issues put before him and issued an award, he has exhausted his authority. An arbitrator may not subsequently issue a new or supplemental award, amend the award already made, or impeach or support that award in any way. Id. at 948, citing Hartley v. Henderson, 189 Pa. 277, 42 A. 198 (1899). The purpose behind this rule is to prevent one who is not a judicial officer and who acts informally from re-examining a final decision, as the potential of outside communication and unilateral influence could affect a new conclusion. La Vale Plaza Inc. v. R.S. Noonan Inc. 378 F.2d 569, 572 (3d Cir. 1967). Here, following an October 4, 2002 hearing where both parties were given the opportunity to present evidence, Arbitrator Rutter issued a final arbitration decision and award on October 7, 2002. The October 7, 2002 award clearly set forth the percentages of liability attributable to each party, finding defendant Highway Marine was 25 percent responsible for the injuries plaintiff sustained. This decision was published to the parties, and constituted a binding determination of the issues presented. Under common-law principles, Arbitrator Rutter’s authority with regard to the case ended here. When Arbitrator Rutter rendered this final award, his power under the arbitration agreement was exhausted, and unless his subsequent attempts to act under that agreement fell within one of a limited number of narrow exceptions, the October 15, 2002 corrected and clarified arbitration award is null and void. Colonial Penn Insurance Co. v. The Omaha Indemnity Co., 943 F.2d 327, 333 (3d Cir. 1991).

The common-law functus officio doctrine is subject to certain narrow limitations or exceptions where an arbitrator will be permitted to retain jurisdiction to alter an award that has been issued. The limited exceptions to the doctrine are:

“(1) an arbitrator may correct a mistake which is apparent on the face of an award;
“(2) where the award does not adjudicate an issue which has been submitted, then as to that issue the arbitrator has not exhausted his function, and it remains open to him for subsequent determination; and
“(3) where the award, although seemingly complete, leaves doubt whether the submission has been fully executed, and ambiguity arises which the arbitrator is entitled to clarify.” La Vale Plaza Inc. v. R.S. Noonan Inc, 378 F.2d 569, 573 (1967).

As Arbitrator Rutter fully considered and ruled upon the merits of the issues as presented, the second exception is not applicable in the instant appeal. However, plaintiff contends that the corrected and clarified arbitration decision and award of October 15, 2002 merely rectified a clerical error that was apparent on the face of the award, and therefore Arbitrator Rutter had the authority to correct it. The exception for mistakes apparent on the face of an award is applied to clerical mistakes or obvious errors in arithmetic computation. Colonial Penn at 332. In the instant case, the percentages of liability assessed, without more, does not on its face suggest that a mistake was made. Pursuant to the arbitration agreement, the arbitration award of October 7, 2002 set forth the percentages of causal negligence attributable to each party. The October 7, 2002 award was signed by Arbitrator Rutter and published to the parties as a final determination of the issues presented. Nothing on the face of the October 7,2002 award suggests that Arbitrator Rutter intended another result, or that a mistake was made.

Plaintiff relies on the deposition testimony of Arbitrator Rutter and Mr. Carney to establish that an obvious clerical error was made in transcribing the initial award. However, an arbitrator’s affidavit or testimony generally may not be used to subsequently impeach an award that has been rendered. Jackson v. Government Employees Insurance Co., 417 Pa. Super. 543, 548, 612 A.2d 1071, 1074 (1992). The court in Colonial Penn Insurance Co. v. The Omaha Indemnity Co., 943 F.2d 327 (1991), warned against extending the limited exception for mistakes apparent on the face of an award to allow consideration of extraneous facts. The court cautioned that such a broad extension of this limitation had the potential to subvert the arbitration process to capricious decisions, as parties could, under the guise of a mistake in fact, seek recourse directly through the arbitrators in an attempt to overturn an adverse award. Colonial Penn at 332. The court stressed that the need to regard arbitral awards as final and to protect the arbitrators from outside influence was too strong to permit such a dimunition of the functus officio doctrine. Id. at 333.

Here, defendant Highway Marine was prepared to tender a release in the amount of $625,000 to plaintiff pursuant to the arbitration award issued on October 7,2002. Rather than accept the award as issued, plaintiff’s counsel contacted Arbitrator Rutter’s office, and Arbitrator Rutter directly, for clarification of the award. As a result of this ex parte communication and Attorney Klinges’ subsequent letter, Arbitrator Rutter reassessed the percentages of fault and unilaterally issued the corrected and clarified arbitration award of October 15, 2002. At no time prior to the issuance of the second award was defendant Highway Marine made aware of the communication that was taking place between the arbitrator and plaintiff, or that some aspect of the initial award might be incorrect. While the mistake may have been obvious to the arbitrator immediately upon re-examination, it was not readily apparent on the face of the initial award or to defendant Highway Marine. Plaintiff may not now submit Arbitrator Rutter’s testimony to bolster his contention that a mistake was apparent on the face of the October 7, 2002 award. Jackson, 417 Pa. Super. at 548, 612 A.2d at 1074. The inadmissible circumstances leading to the arbitration decision and award of October 15,2002, as testified to by Arbitrator Rutter and Mr. Carney, are precisely the type of extraneous facts that the court in Colonial Penn warned against. Extending the exception for mistakes on the face of an award to allow consideration of this testimony would fly in the face of the policies behind the functus officio doctrine.

Plaintiff next contends that the arbitration award of October 7, 2002 was clearly ambiguous, and therefore this court should have remanded the case to Arbitrator Rutter for further clarification. Where the award, although seemingly complete, leaves doubt whether the submission has been fully executed, an ambiguity arises which the arbitrator is entitled to clarify. La Vale Plaza, at 573. Under this exception to the functus officio doctrine, an ambiguity may be shown on the face of the award, or from objectively attained extraneous facts. Colonial Penn at 334. Here, plaintiff contends that the arbitration award of October 7,2002 was ambiguous in that it stated plaintiff was awarded $1,000,000 pursuant to the agreement of the parties, but found that defendant Highway Marine was liable to plaintiff for 25 percent or $625,000 of the $2,500,000 gross award. There is nothing ambiguous in this determination that would warrant remand for further clarification. The October 7,2002 award clearly sets forth the percentages of liability attributable to each party.

Although the award purports to mold the determination to the high/low agreement reached by the parties, Arbitrator Rutter lacked the authority to alter his initial determination and so mold the award. An arbitrator’s authority is restricted to the powers the parties have conferred upon him, and the trial court may examine whether the arbitrator exceeded the scope of that authority. Boulevard Associates v. The Seltzer Partnership, 445 Pa. Super. 10, 664 A.2d 983 (1995). The power and authority of arbitrators are limited to the terms of the agreement between parties to the arbitrtion, and they may not exercise authority as to matters not submitted for review by the parties. Sley System Garages v. Transport Workers Union of America, 406 Pa. 370, 374, 178 A.2d 560, 561-62 (1962). In the present case, the parties submitted to arbitration the specific issues of causal negligence and resulting damages. The arbitration agreement and stipulation signed by the parties did not grant Arbitrator Rutter the authority to mold his award pursuant to the high/low agreement reached by the parties. Therefore, Arbitrator Rutter was limited to solely determining whether defendant Highway Marine was negligent in the sale of an inappropriate trailer for plaintiff’s boat, and if so, what percentage of the damages assessed defendant Highway Marine was liable for. Any attempt by Arbitrator Rutter to further mold the award was beyond the scope of his authority, as arbitrators have no inherent authority to impose remedies not called for in the parties’ agreement to submit to arbitration. Philadelphia Federation of Teachers v. School District of Philadelphia, 684 A.2d 671, 673 (Pa. Commw. 1996), appeal denied, 549 Pa. 695, 700 A.2d 445 (1997). However, as noted above, the arbitration agreement did confer the authority to assess the percentages of causal negligence attributable to each party. The award of October 7, 2002 unambiguously states that defendant Highway Marine is 25 percent culpable for the injuries plaintiff sustained, and is a final, written determination of the issues presented to Arbitrator Rutter. Further clarification of this finding was not necessary or warranted in this case.

2. This Court Was Within Its Discretion in Vacating the Clarified Arbitration Award of October 15, 2002 and Entering Judgment for Plaintiff in Accordance With the Arbitration Decision and Award of October 7, 2002

This court was within its discretion in confirming the award of October 7, 2002 and vacating the October 15, 2002 clarified award. Defendant Highway Marine timely appealed the corrected and clarified arbitration decision and award of October 15, 2002 within 30 days pursuant to 42 Pa.C.S. §7342, seeking reinstatement of the October 7, 2002 award. The judicial standard of review for common-law arbitration is very limited, and is governed by 42 Pa.C.S. §7341, which states in pertinent part:

“The award of an arbitrator in a nonjudicial arbitration which is not subject to (statutory arbitration) or [to] a similar statute regulating nonjudicial arbitration proceedings is binding and may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption, or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.” 42 Pa.C.S. §7341.

Arbitrators are the final judges of both law and fact, and an arbitration award is not subject to reversal for a mistake of either. Prudential Property and Casualty Insurance Co. v. Stein, 453 Pa. Super. 227, 230, 683 A.2d 683, 684 (1996). Only claims which assert some impropriety in the arbitration process may be the subject of an appeal, to the exclusion of appeals which seek review of the merits. Snyder v. Cress, 791 A.2d 1198, 1201 (Pa. Super. 2002). The party appealing an arbitration award bears the burden of establishing both the underlying irregularity and the resulting inequity by “clear, precise and indubitable evidence.” McKenna v. Sosso, 745 A.2d 1, 4 (Pa. Super. 1999). An irregularity refers to the process employed in reaching the result of the arbitration, not in the result itself, and may appear in the conduct of either the arbitrator or the parties. Id.

Here the irregularities in the arbitration process following the initial arbitration award justified this court’s order of June 19, 2003. As discussed at length above, Arbitrator Rutter’s authority had fully expired following the issuance and transmittal of the October 7, 2002 award. Colonial Penn, supra. The functus officio doctrine dictated that the subsequent award be vacated. Furthermore, the irregularities in the arbitration process leading the corrected and clarified arbitration award of October 15, 2002 mandated vacatur of the award. Defendant Highway Marine provided clear, uncontradicted evidence of ex parte communication between plaintiff’s counsel and the arbitrator leading to revision of the initial award. In Government Employees Insurance Co. v. Lane, 264 Pa. Super. 615, 401 A.2d 765 (1979), the court determined that similar ex parte communication between a party and an arbitrator resulting in the issuance of a second award, rendered the entire arbitration process null and void. Id. at 622, 401 A.2d at 767. The court in Lane remanded the case for new arbitration proceedings as the original award was ambiguous and required further clarification. Id. The communication between Arbitrator Rutter and plaintiff’s counsel leading to the issuance of the October 15,2002 clarified award is no less egregious. This is precisely the type of improper influence and irregularity in the arbitration process that the functus officio doctrine is designed to protect against. Colonial Penn at 331-32.

Plaintiff contends that this court erred in failing to remand the awards to the arbitrator for further clarification. However, it should be noted that this court’s June 19, 2003 order confirmed the arbitration award of October 7, 2002, while vacating the subsequent October 15, 2002 clarified award. A trial court order confirming a common-law arbitration award will be reversed only for an abuse of discretion or error of law. Gargano v. Terminix International Co. L.P., 784 A.2d 188, 193 (Pa. Super. 2001). Despite the functus officio doctrine, remand to the arbitrator is appropriate to clarify an ambiguous award or to require the arbitrator to address submitted but unresolved issues. Colonial Penn at 334. Remand for clarification should be used sparingly and should not permit the arbitrator to reexamine their decision on the merits, as an arbitration award must be upheld even where there have been errors in the determination of factual issues. Id. at 334. As discussed above, this court determined that the October 7, 2002 award was not ambiguous. The arbitration agreement and stipulation limited Arbitrator Rutter’s scope of authority to a determination of defendant Highway Marine’s causal negligence. Boulevard, supra. After a full hearing, a final written arbitration decision and award was issued on October 7, 2002 setting forth the percentages of liability attributable to each party in this litigation. Mistakes of judgment and mistakes of either fact or law are among the contingencies parties assume when they submit disputes to common-law arbitration. McGrew v. Travelers Indemnity Co., 231 Pa. Super. 217, 331 A.2d 668 (1974). Plaintiff may not now seek revision of the terms of the award because he is unsatisfied with the result. As such, remand to allow a reexamination of the award on its merits was improper and unwarranted in the instant case. In applying the above principles, this court exercised its sound discretion in fashioning the June 19,2003 order vacating the clarified award of October 15, 2002 and entering judgment in favor of the plaintiff in accordance with the October 7, 2002 arbitration award.

      . It is not clear whether the October 15, 2002 letter requesting clarification of the award was sent at the request of Arbitrator Rutter, or was submitted independently by plaintiff’s counsel. See Klinges depo., 1/14/03, pp. 17-20; and Rutter depo., 12/16/02, p. 28.

      . Counsel for defendant Highway Marine testified that he objected to Arbitrator Rutter receiving the high/low agreement of the parties, as it was understood that the parties would apply the terms and mold the award themselves. Keenan depo., 1/14/03, pp. 17-20. While plaintiff’s attorney Klinges disputes this, he acknowledges that the parties did not discuss whether Arbitrator Rutter had the authority to mold the award pusuant to the parties’ agreement. Klinges depo., 1/ 14/03, pp. 17-20. The record was not transcribed and the arbitration agreement is silent on this issue. There is nothing to substantiate plaintiff’s contention that the parties agreed Arbitrator Rutter had the authority to mold the award. Therefore, the scope of Arbitrator Rutter’s authority must be determined by the terms set forth and agreed upon by the parties in the arbitration agreement and stipulation. Boulevard, supra. As nothing in the agreement limited the award to a specific amount, plaintiff’s interpretation of the scope of the arbitrator’s authority is neither legally nor factually based.