author: WETTICK, J.,

text:
    Tollari v. General Motors Corp.

      C.P. of Allegheny County,
    no. GD97-5079.

      Mary Chmura Conn, for plaintiff.

      Lee R. Allman, for defendants.
    October 29, 1998
   WETTICK, J.,

Plaintiff’s motion to compel return of Dr. Bhatt’s medical report is the subject of this opinion and order of court.

This is a product liability claim in which plaintiff alleges that he sustained serious injuries as a result of an April 12, 1995 motor vehicle accident.

On several occasions during the period between March 22, 1995 and April 15, 1996, plaintiff was seen by Dr. Naresh Bhatt at Centerville Clinics Inc. On February 10, 1998, plaintiff signed an authorization for release of medical records in which he authorized Centerville Clinics to release to counsel for defendants all records, reports, physician’s notes and the like relating to any examination, consultation, care, or treatment. The authorization states that Centerville Clinics is not authorized to discuss the patient’s case or to furnish reports regarding the patient’s condition other than records presently in the file regarding the patient.

On April 10, 1998, defendants’ counsel served upon plaintiff’s counsel a notice of intent to serve subpoenas to produce documents and things for discovery pursuant to Rule 4009.21. The notice stated that defendants will serve a subpoena on the records custodians of a series of medical providers including Centerville Clinics. Pursuant to Pa.R.C.P. 4009.21, the notice stated that plaintiff had 20 days from April 10, 1998 in which to file objections to the subpoenas and if no objections were filed the subpoenas would be served. The proposed subpoena relating to Centerville Clinics sought the same records that were described in the February 10, 1998 authorization.

On April 27,1998, defendants’ counsel sent a certified letter to Dr. Bhatt at the Fredericktown Centerville Clinic that enclosed a subpoena ordering Dr. Bhatt to appear for a deposition at his law offices in Philadelphia on May 28, 1998 at 10 a.m. to testify on behalf of General Motors and to bring with him the documents described in an attached schedule A. Schedule A referred to the same medical documents that were described in the authorization. However, schedule A did not include the provision which plaintiff’s counsel had included in the authorization directing the doctor to furnish only records presently in his file regarding the patient.

The April 27, 1998 letter of defendants’ counsel included the following statement:

“The purpose of this subpoena is to secure copies of records in your possession which contain information which may be relevant to the pending action. In lieu of having a representative of Centerville Clinics appear for a formal deposition and producing original records, we are prepared to accept legible copies of all documents by mail so long as those materials are received with the accompanying affidavit representing that everything called for in the subpoena is being forwarded with the affidavit in compliance with the subpoena. Absent notice that documents will be forwarded in lieu of attendance at the deposition, we will anticipate the arrival of a formal representative of Centerville Clinics and original records at the offices of the undersigned as called for in the subpoena.” (emphasis in original)

On May 4, 1998, Dr. Bhatt prepared a three-page letter addressed to Lee R. Allman (defendants’ counsel) in which he discussed each of plaintiff’s visits.

At the request of Centerville Clinics, defendants’ counsel forwarded to Centerville Clinics the February 10, 1998 authorization. Shortly thereafter, Centerville Clinics furnished plaintiff’s medical records and Dr. Bhatt’s letter to Mr. Allman who then provided copies to plaintiff’s counsel.

Plaintiff’s counsel requested defendants’ counsel to return the original and all copies of the May 4, 1998 letter to Dr. Bhatt. Defendants’ counsel returned the original but retained a copy. Plaintiff then filed the motion to compel the return of all copies of Dr. Bhatt’s May 4, 1998 letter that is the subject of this opinion and order of court.

Plaintiff relies on Pa.R.C.P. 4003.6 which reads in relevant part as follows:

“Information may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter.”

Plaintiff contends that he never consented to the preparation or delivery of the May 4, 1998 letter. Furthermore, the letter was not prepared and submitted pursuant to a method of discovery authorized by the Rules of Civil Procedure. Therefore, defendants’ counsel was required to return the letter unread to Dr. Bhatt.

Defendants raise several arguments in support of their position that they may retain and use the May 4, 1998 letter. First, they contend that plaintiff authorized the production of this letter through the authorization that he executed which covered “reports.” This argument has absolutely no merit. A letter from a plaintiff’s physician to an opposing counsel is not a report under any reasonable construction of the authorization. Furthermore, plaintiff’s counsel added to the authorization the statement that Centerville Clinics was not permitted to furnish reports regarding the patient’s condition other than records presently in its file.

Next, defendants contend that the May 4, 1998 letter was not obtained pursuant to the authorization. Instead, they contend that the letter was obtained pursuant to Rule 4009.21. A copy of the proposed subpoena served on plaintiff’s counsel included “reports.” Plaintiff’s counsel never objected to this subpoena by filing of record a written objection and serving a copy of the objection on defendants as provided for by Rule 4009.21. The May 4, 1998 letter is a report. Consequently, defendants obtained this document through a method of discovery authorized by this chapter.

For at least two reasons, this argument is absolutely without merit. First, a subpoena which refers to a physician’s report could not be reasonably construed by either counsel for the party issuing the subpoena or counsel for the party whose medical records are being sought as including a letter to opposing counsel summarizing the treatment.

Second, defendants’ counsel never obtained any records from Centerville Clinics pursuant to Rule 4009.21. If he was using that rule, he could not have served the proposed subpoena on Centerville Clinics until at least 20 days after he gave written notice to plaintiff of his intent to serve the subpoena. The date of service of the notice of intent to serve subpoenas was on or after April 10, 1998 and the subpoena was served on Centerville Clinics on April 27, 1998. Also, the record does not show the filing of the certificate required as a prerequisite to the service of the subpoena. See Rules 4009.22(a) and 4009.25. Finally, a subpoena compelling Dr. Bhatt to appear for a deposition in Philadelphia on May 28, 1998 at 10 a.m. is not a subpoena provided for under Rule 4009.26.

Through the April 27,1998 mailing, defendants’ counsel sought to obtain plaintiff’s medical records pursuant to Pa.R.C.P. 4007.1(d)(2). Under this procedure, defendants’ counsel was prohibited from directing the treating physician to produce the medical records prior to the May 28, 1998 deposition. See explanatory comment — 1997 to Rule 4009.1 (“The person who is not a party and who has been subpoenaed to produce documents or things at a deposition is prohibited from producing them earlier than at the time of the deposition except upon the consent of all parties.”). Also see Talarico v. Montefiore Hospital, 138 P.L.J. 210 (1990). Consequently, the May 4, 1998 letter was not obtained through a method of discovery authorized by the Rules of Civil Procedure.

Defendants’ counsel next contends that this letter is outside the scope of Rule 4003.6. He states that he never asked Dr. Bhatt to prepare the letter and that none of his actions contributed to Dr. Bhatt’s preparation of the letter. It was a mistake on Dr. Bhatt’s part for which defendants are not responsible. Rule 4003.6 should not be construed to cover the situation in which a treating physician voluntarily furnishes relevant information. Rule 4003.6 should be limited to the situation in which a party to the litigation encourages the physician of an opposing party to furnish information.

Even if I found defendants’ counsel to be entirely innocent, I would reject defendants’ position for at least two reasons.

First, this position is inconsistent with the clear language of Rule 4003.6. The May 4, 1998 letter is information that defendants obtained from the treating physician of the party. They did not obtain this letter with the written consent of the party or through a method of discovery authorized by the Pennsylvania Rules of Civil Procedure, Depositions and Discovery. The apparent purpose of Rule 4003.6 is to protect patients who are parties in a pending lawsuit. There is nothing in the language of Rule 4003.6 suggesting that Rule 4003.6 should apply only where there is overreaching on the part of counsel.

Defendants contend that this case is similar to the situation in which an attorney inadvertently produces records protected by the attorney-client privilege. They contend that in this situation the party receiving the documents is entitled to use them in any way that this party wishes. In support of this position, they cite only an unreported 1989 memorandum authored by Judge Bechtle of the Eastern District of Pennsylvania in ICI Americas Inc. v. John Wanamaker of Philadelphia, 1989 W.L. 38647 (E.D. Pa. 1989). A party’s inadvertent production of documents to an opposing party is not the same as a treating physician’s inadvertent production of documents to an opposing party because in the latter situation neither the patient nor his counsel participated in the production of the documents. Furthermore, I am puzzled as to why defendants’ counsel would be citing this 1989 unreported federal district court memorandum since six years later I issued an opinion in Minatronics Corp. v. Buchanan Ingersoll P.C., 23 D.&C.4th 1, 143 P.L.J. 228 (1995), which holds that where there has been an inadvertent disclosure, the party receiving the documents may not introduce the documents into evidence at trial, may not make any reference to these documents for the remainder of the litigation, and may not furnish the documents to any additional persons.

Finally, I reject defendants’ position that they played no role in the preparation and delivery of the May 4,1998 letter. I find that counsel’s abuse of the discovery rules contributed to the preparation and delivery of the letter.

Defendants were entitled to schedule a deposition in Philadelphia if they tendered the fee for one day’s attendance and round-trip mileage. However, under Rule 4007.1, they were not permitted to give Dr. Bhatt the option of furnishing documents by mail in lieu of travelling more than 250 miles to Philadelphia.

Furthermore, the choice set forth in the April 27, 1998 letter from defendants’ counsel to Dr. Bhatt was not to come to Philadelphia with the original records or to furnish copies by mail. Instead, the letter stated that defendants’ counsel was “prepared to accept legible copies of all documents by mail” in lieu of the production of the original records in Philadelphia at a formal deposition. The reasonable reading of the term “legible” means possible to read. A review of the medical records shows that various notes of Dr. Bhatt are not possible to read. The April 27, 1998 letter and the subpoena served pursuant to this certified mailing required Dr. Bhatt to travel from Fredericktown to Philadelphia — this was not a subpoena directed to a records custodian. Consequently, defendants were advising Dr. Bhatt that he had the choice of either coming to Philadelphia or satisfying defendants’ demand for legible records. The legibility requirement very likely resulted in the preparation of the May 4, 1998 letter.

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

ORDER

On October 29, 1998, it is hereby ordered that plaintiff’s motion to compel the return of the May 4, 1998 letter is granted. It is further ordered that all copies of the May 4, 1998 letter in the possession, custody, or control of defendants (including defendants’ experts) shall be furnished to plaintiff’s counsel within 20 days and that no party, witnesses (including expert witnesses), or attorneys may make any reference to this letter for the remainder of the litigation.

      . It appears that plaintiff’s counsel added this restriction to the authorization that defendants’ counsel had submitted to plaintiff’s counsel.

      . Pa.R.C.P. 234.2(c) provides that if a subpoena is served by mail, a check in the amount of one day’s attendance and round trip mileage shall be enclosed with the subpoena. The letter to Dr. Bhatt makes no reference to any check.

      . This is correct because the authorization was not provided to Centerville Clinics until several weeks after Dr. Bhatt received a subpoena compelling Dr. Bhatt to appear for a deposition in Philadelphia.

      . The new rules (Rules 4009.21-4009.27) permitting a party to obtain records from a third party through a subpoena to produce documents created another method of obtaining documents from a third party. A party may continue to schedule a deposition by oral examination to obtain records from a third party. See note to Rule 4009.1.

      . In this case, the defendants are not suggesting that a healthcare facility provided discovery pursuant to the Act of November 28, 1986, P.L. 1458, no. 145, 42 Pa.C.S. §§6151-6159.

      . The relief that I am providing in this order of court is what plaintiff sought. Consequently, I need not decide whether plaintiff would have been entitled to any additional relief such as the disqualification of defendants’ counsel.


source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    Butinetz v. Hohnhorst

      C.P. of Lackawanna County,
    no. 95-CV-3664.

      P. Timothy Kay, for plaintiff.

      David E. Heisler, for defendant.
    March 10, 1998
   MINORA, J.,

This matter is before the court by way of plaintiff’s motion for post-trial relief pursuant to Rule 227.1 of the Pennsylvania Rules of Civil Procedure. Following a jury trial in June of 1997, the jury concluded that the defendant, Woodrow Hohnhorst, was negligent, but his negligence was not a substantial factor in bringing about the plaintiff’s, Michael Butinetz’s, harm. As a result, the jury awarded zero damages despite the plaintiff claiming injuries as a result of the accident. The plaintiff has petitioned for a new trial.

The plaintiff, Michael Butinetz, has requested post-trial relief on the grounds that the jury’s verdict was against the weight of the evidence presented at trial. The court may properly consider plaintiff’s motion for a new trial on the basis that the verdict was against the weight of the evidence even though no objection was raised before the jury was discharged, as no claim was made that the verdict was inconsistent, irrational, or problematic, and the verdict was not incapable of being understood. Lewis v. Evans, 456 Pa. Super. 285, 287, 690 A.2d 291, 292 (1997).

Plaintiff makes no appeal for error in the court’s charge to the jury, which clearly allowed the jury to return a zero-damages verdict if the plaintiff had not met his burden of proof. Nor was any objection made during trial to the court’s charge to the jury. If no objection is made, an error which could have been corrected in pretrial proceedings or during trial by timely objection may not constitute a ground for post-trial relief. Pa.R.C.P. no. 227.1(b)(1), note of the Civil Procedural Rules of Committee. All exceptions to the charge to the jury must be taken before the jury returns. Pa.R.C.P. 227(b).

DISCUSSION

“[A] new trial should be awarded [only] when [a] jury’s verdict is so contrary to the evidence as to shock one’s sense of justice ....” Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985). See also, Ditz v. Marshall, 259 Pa. Super. 31, 35, 393 A.2d 701, 703 (1978). “[A] jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.” Neison v. Hines, 539 Pa. 516, 521, 653 A.2d 634, 637 (1995). Where, however, evidence suggests another cause for the plaintiff’s complaints, or the evidence calls into reasonable question the plaintiff’s credibility, a verdict of zero damages is not to be set aside. See e.g., Gallagher v. Marguglio, 429 Pa. Super. 451, 455, 632 A.2d 1309, 1311 (1993).

The decision to grant a new trial on the grounds of inadequacy of the verdict is left to the discretion of the trial court, and the exercise of this discretion will not be interfered with unless there is a gross abuse thereof. Standard Pa. Practice 2d §62:69. A verdict in an action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or in some instances where there was a vital mistake on the part of the jury, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. Id.

The parties to this case agree that on August 11, 1993, the vehicle of the defendant, William Hohnhorst, rear-ended the plaintiff’s vehicle. However, plaintiff’s principal argument in this motion is that the jury verdict was against the weight of the evidence. This assertion is based on the testimony of expert medical witnesses called at trial. The plaintiff feels that all the expert medical testimony indicated that he was injured in the accident.

The plaintiff relies on the following: the testimony of Dr. Gary Ross, an expert for the plaintiff; the deposition of Dr. Charles Newton which was read into evidence; the testimony of numerous lay witnesses such as State Police Trooper Sivahop; the plaintiff and the defendant to support his contention that the jury verdict was against the weight of the evidence and a new trial should be ordered. However, this court does not reach the same conclusion. We are cognizant that expert testimony is to be received by the jury just as they would receive any other opinion testimony, and the court and jury are not bound by an opinion of an expert; these opinions are to be considered with other evidence and may be rejected in whole or part. Standard Pa. Practice 2d §55:14.

The physical condition of the plaintiff and the effect the accident at issue had on his condition have been disputed by both sides in this action. The plaintiff has been and still continues to suffer from many physical ailments. The deposition of Dr. Holla, an expert medical witness for the defendant, was read into the record at trial. Dr. Holla was of the opinion that as of the date he had seen the plaintiff, he had no problems which were in any way related to the motor vehicle accident. (Dep. Dr. Holla, pp. 12-14.) It was further noted that the plaintiff was suffering from bilateral carpal tunnel syndrome, as well as headaches and neck pain which were attributable to spondylosis, which was not related to the motor vehicle accident. (Id.) It was, therefore, Dr. Holla’s opinion that the plaintiff’s right shoulder pain was due to the carpal tunnel syndrome and/or the cervical spondylosis, and/or some degree of arthritis, none of which were related to the motor vehicle accident. {Id. at p. 14.)

The testimony of Dr. Newton, an expert medical witness for the plaintiff, also stated that the plaintiff was suffering from preexisting arthritis in his right shoulder. (Dep. Dr. Newton, p. 17.) He also stated that the plaintiff’s complaints of right shoulder pain were consistent with his arthritis. {Id. at p. 32.) He also noted that arthritic changes were causing problems with the plaintiff’s spinal cord. (Id. at p. 20.) The plaintiff is also under treatment for high cholesterol and hypertension which can cause headaches, lightheadedness and dizziness. (Id. at p. 24.)

Upon considering the extensive evidence presented at trial regarding the plaintiff’s preexisting physical condition and his physical condition following the accident in question, and also considering the jury’s function as the finder of fact, we hold that the jury’s verdict was not so contrary to the evidence as to shock one’s sense of justice and therefore a new trial should not be awarded. Thompson, supra.

CONCLUSION

As a matter of law, the jury had been charged by the court that it had the option of returning zero damages. No objection was made to such a charge at any stage of the trial. Therefore, this court finds that it was fairly within the province of the jury to reasonably assess the credibility of the plaintiff’s case and his preexisting conditions in concluding that there were no compensable injuries. The verdict of the jury was not so against the weight of the evidence so as to shock one’s sense of justice.

For all the reasons listed above, the plaintiff’s motion for post-trial relief is denied. An appropriate order follows.

ORDER

And now, to wit, March 10,1998, it is hereby ordered that the plaintiff’s motion for post-trial relief is denied.


author: KANE, J.,

text:
    Thackray v. Toll Brothers Inc.
    C.P. of Bucks County,
    no. 95-08224-09-2.

      Joseph L. Messa Jr., for plaintiff.

      John D. Lemonick, for defendant.
    April 21, 1999
   KANE, J.,

Plaintiff, Douglas Thackray, was employed by subcontractor J.W. Holmes when he was injured on November 11, 1993 while working on construction being built by Toll Brothers Inc., the owner and contractor for Northampton Estates, and the defendant in this matter. The original complaint was filed on November 6, 1995. Defendant filed a motion for summary judgment on August 5, 1998. After reviewing the record and hearing oral argument in this matter, we granted defendant’s motion for summary judgment on February 12, 1999. Plaintiff has appealed from that decision and we offer this opinion in support thereof.

On November 11,1993, while in the process of framing a house, Thackray was carrying a pre-assembled wall when he fell through a hole in the floor designed to eventually house a staircase. The stairway hole had no safety railings, barriers, or other warning signs that might have prevented plaintiff’s injury. Thackray alleges that Toll Brothers is liable for the physical harm he suffered as a result of his fall. Thackray asserts that Toll Brothers failed to exercise reasonable care in controlling the work site and that a “peculiar risk” was posed to him based on the circumstances he was working under, that Toll Brothers was required to cover or place safety rails around the stairway, and that Toll Brothers retained control over the construction site, making them liable for any related negligence.

In Ortiz v. Ra-El Development Corp., 365 Pa. Super. 48, 52, 528 A.2d 1355, 1357 (1987), the court reiterated the general Restatement of Torts, which states an “employer of an independent contractor is not liable for the physical harm caused to another by an act or omission of the contractor or his servants.” See also, Donnelly v. SEPTA and Muratone, 708 A.2d 145 (Pa. Commw. 1998). An exception to this general rule of non-liability arises where the work to be performed by the independent contractor involves a special danger or peculiar risk. Pennsylvania has adopted this exception to an employer’s non-liability as set forth in sections 416 and 427 of Restatement (Second) of Torts:

“Section 416. Work dangerous in absence of special precautions
“One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
“Section 427. Negligence as to danger inherent in the work
“One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”

The determination of whether a particular case presents a peculiar risk or special danger is a mixed question of law and fact and may be made, in clear cases, by the trial judge as a matter of law. Mentzer v. Ognibene, 408 Pa. Super. 578, 597 A.2d 604 (1991). In making our determination, we considered similar cases and found the Pennsylvania Superior Court has stated: “To characterize all construction work ... as involving a special danger or peculiar risk would render the terms ‘special danger’ or ‘peculiar risk’ meaningless . . . .”

The Ortiz test is a two-prong test. In utilizing this test to determine the existence of a peculiar risk, it must/iryibe considered whether the risk was foreseeable and whether a reasonable person, in the position of the employer, would recognize the need to take special measures. In Ortiz, peculiar risk was defined to refer to work done under unusually dangerous circumstances, acknowledging that all construction work involves some risk of harm. We applied that definition here and found nothing unusually dangerous about the environment Thackray was working in. However, even if we found otherwise, the second prong of the test certainly cannot be met. That is, the risk must be different from the usual and ordinary risk associated with the general type of work done. It is beyond questioning to this court that the carrying of wallboard, even to a less experienced laborer, as we accept Thackray to have been, simply does not rise to the level of unusually dangerous circumstances and therefore we find the peculiar risk doctrine inapplicable here. See also, Edwards v. Franklin & Marshall College, 444 Pa. Super. 1, 663 A.2d 187 (1995).

Plaintiff would have us believe further that defendant was conducting operations in violation of governmental standards by not having some safety mechanism in place and therefore is liable here. We refer to Peffer v. Penn 21 Associates, 406 Pa. Super. 460, 465, 594 A.2d 711, 713 (1991) wherein it was held “[violation of safety conditions alone . . . cannot be a basis for carving out exceptions to the rule that the owner is not liable for injuries incurred by employees of a subcontractor, as to do so would nullify the rule for all practical purposes since many, if not most, industrial accidents can be attributed to a failure to comply with safety regulations of either state or federal agencies.”

We agree with this holding, and find the lack of barriers protecting the stairway hole to be a common practice and one which Thackray had worked in the presence of, and therefore to be insufficient evidence to find Toll Brothers hable in this matter.

Finally, Thackray asserts that Toll Brothers retained control to such an extent as to be liable for the negligence, contrary to the general rule of failing to properly maintain and supervise the work site. Thackray contends that the lack of deposition testimony of J.W. Holmes, the subcontractor, is prejudicial to plaintiff’s position. Our review of the record in this matter and of the relevant case law leaves this court confident that Thackray cannot sufficiently produce evidence that would remove the circumstances of this litigation from the scope of the general rule under which Toll Brothers, as the employer of the independent contractor, is not liable for resulting harm.

Regarding summary judgment, the Pennsylvania Supreme Court has held that a non-moving party must adduce sufficient evidence on an issue to his case and upon which he has the burden of proof, such that a jury could return a verdict in his favor. Without this evidence, no genuine issue of material fact is established, and the moving party is entitled to judgment as a matter of law. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996). We find that Thackray has not adduced such evidence here.

While we acknowledge plaintiff’s valiant effort to forestall the end of this litigation, we agree with Toll Brothers’ argument that for the many reasons stated, liability should not be imposed upon them in this matter and we therefore granted Toll Brothers’ motion for summary judgment.


author: KUHN, J.,

text:
    Sullivan v. Ski Liberty Operating Corp.
    C.P. of Adams County,
    no. 96-S-1039.

      John N. Keller, for plaintiffs.

      Hugh M. Emory, for defendant.
    February 17, 1999
   KUHN, J.,

On December 12, 1996, Terry J. Sullivan, Husband, filed a complaint on behalf of his minor daughter, Abby Alise Sullivan, and himself against defendant. Count I seeks damages for personal injury suffered by Abby as a result of a skiing accident on February 9, 1996 at defendant’s ski resort, Ski Liberty, based upon defendant’s alleged negligence in not providing her with appropriate ski rental equipment, and Count II seeks recovery by Husband of medical and related expenses incurred as a result of Abby’s accident. On November 2, 1998, defendant filed a motion for partial summary judgment as to Count II, the claim for medical and related expenses. That motion is before the court for disposition.

Our Superior Court has recently set forth the standard for summary judgment as follows:

“Summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2, 42 Pa.C.S. In determining whether to grant summary judgment a trial court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Id. Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id.” Electronic Laboratory Supply Co. v. Cullen, 712 A.2d 304, 307 (Pa. Super. 1998).

The pleadings and admissions reveal the following background. Abby was bom on February 15, 1984. On November 30, 1995, her mother, Cynthia Sullivan, Wife, took Abby, then age 11, to Ski Liberty to enroll in the Ski School program. As part of the enrollment process, Wife signed a single page, 13-paragraph, document entitled “Ski Liberty rental and ski school liability release agreement.” The agreement contained the following provision:

“(10) I hereby agree to release from any legal liability, Ski Liberty and its owners, agents and employees . . . for any and all liability for damage, injury or death to my child... resulting from the selection, installation, maintenance, adjustment or use of the rental equipment and for any claim based upon negligence ... or other legal theory accepting full responsibility on behalf of my child for any and all such damage, injury or death which may result.”

Preprinted beneath the signature line, upon which Wife executed her signature, are the words “The signature of one parent or guardian binds both parents or guardians concerning any losses they might have. ”

The sole issue before the court is whether Wife’s signature releasing defendant from liability is binding upon Husband and, in turn, his claim for payment of medical and related expenses incurred on behalf of their daughter. In other words, was Wife acting as Husband’s authorized agent when she executed the release? Defendant concedes that the release is not binding on Abby. Plaintiff concedes that the release is binding upon Wife. See Galisson v. Shawnee Mountain Ski Area, 697 A.2d 281 (Pa. Super. 1996), alloc. denied, 549 Pa. 723, 702 A.2d 1060 (1997); Simmons v. Parkette National Gymnastics Training Center, 670 F. Supp. 140 (E.D. Pa. 1987). No Pennsylvania case precisely on point has been located.

Defendant has the burden of establishing the agency relationship. Moyer v. Norristown-Penn Trust Co., 296 Pa. 26, 29, 145 A. 682, 683 (1929) (“One who asserts an agency must prove the authority of the agent to do the act in question.”). For the reasons that follow, we conclude that the evidence of record presently, although close on the issue, is not sufficient to carry that burden.

There are four grounds upon which an agency relationship exists and upon which a principal is bound by the act of the agent as against a third party. Those grounds include where the agent had (1) express authority directly granted by the principal to bind the principal as to certain matters, (2) implied authority to bind the principal to those acts of the agent that are necessary, proper and usual in the exercise of the agent’s express authority, (3) apparent authority, i.e. authority that the principal has by words or conduct held the alleged agent out as having, and (4) authority that the principal is estopped to deny. Bolus v. United Penn Bank, 363 Pa. Super. 247, 259, 525 A.2d 1215, 1221 (1987), alloc. denied, 518 Pa. 627, 541 A.2d 1138 (1988).

There is no evidence in the record to establish an agency based upon express or implied authority. In fact, in Husband’s affidavit, he expressly denies giving Wife authority to sign any release. Defendant points to the preprinted language below Wife’s signature on the release that her signature binds both parents as evidence of her authority. However, that act standing alone is inadequate to establish express authority. Wife’s deposition was not presented for consideration so we have no knowledge of what she may say about express authority given to her.

The record comes much closer to evidencing Wife’s apparent authority to sign the release on behalf of Husband. The law is clear that an agent cannot, by his or her words alone, invest himself or herself with apparent authority because such authority emanates from the action of the principal, not from the acts of the agent. Turnway Corp. v. Soffer, 461 Pa. 447, 458, 336 A.2d 871, 876 (1975). Thus, Wife’s signature on the release above the wording which indicates that such signature binds both parents is not enough, in and of itself, to establish the authority.

As noted above, apparent authority arises from words or conduct of the principal. It may be derived from a course of dealing or from a single transaction. Turner Hydraulics Inc. v. Susquehanna Construction Corp., 414 Pa. Super. 130, 136, 606 A.2d 532, 535 (1992). Under the concept of apparent authority, the principal places his agent in a position where it would appear to third persons that the agent is authorized to act. It is said that,

“Where the principal places his agent in, or knowingly permits him to occupy a position in which, according to the ordinary experience and habits of mankind, it is usual for the occupant to have authority of a particular kind, anyone having occasion to deal with the agent is justified in inferring that he possesses such authority, unless the contrary shall be [shown].” Passarelli v. Shields, 19 D.&C.2d 66, 72 (1959), affirmed, 191 Pa. Super. 194, 156 A.2d 343 (1959).

Here, in Husband’s deposition, he indicated that he and Wife gave Abby the ski package as a Christmas present. (Dep. at 9.) As had been the custom in the family, Husband worked as a referee in the winter and was not available from November through February. (Dep. at 14.) Therefore, arrangements for enrolling Abby in the ski program at Liberty and taking care of all the paperwork was one of Wife’s roles in the family. (Dep. at 8, 15.) In fact, Wife was in charge of those details when Abby skied at Whitetail for several years before enrolling at Ski Liberty. (Dep. at 5-7.)

Defendant argues that the marital relationship and the division of duties within the family establishes the agency relationship in this case. “While the marital status in itself does not give rise to any agency relationship, it is competent evidence when considered with other circumstances as tending to establish that one spouse was agent for the other.” Croft v. Malli, 378 Pa. 6, 12, 105 A.2d 372, 376 (1954). However, Pennsylvania recognizes the uniqueness of the marital relationship in the law of agency.

“ ‘Neither husband nor wife by virtue of the relation has power to act as agent for the other. The relation is of such a nature, however, that circumstances which in the case of strangers would not indicate the creation of authority or apparent authority may indicate it in the case of husband or wife. Thus, a husband habitually permitted by his wife to attend to some of her business matters may be found to have authority to transact all of her business affairs.’ Restatement, Agency 2d, §22(b).” Tonuci v. Beegal, 188 Pa. Super. 66, 70, 145 A.2d 885, 888 (1958); see also, Bradney v. Sakelson, 325 Pa. Super. 519, 523, 473 A.2d 189, 191 (1984).

Therefore, in the situation where a wife is given responsibility to enroll the parties’ child in activities, it is more likely that she is acting as her husband’s agent in doing so than if an alleged agent was purportedly acting on behalf of an unrelated principal. Of course, all the circumstances must be considered and the third party cannot blindly accept the acts of the alleged agent as being authorized.

“Although a third party cannot rely on the apparent authority of an agent to bind a principal if he has knowledge of the limits of the agent’s authority, without such actual knowledge, the third party must exercise only reasonable diligence to ascertain the agent’s authority. . . . The third party is entitled to believe the agent has the authority he purports to exercise only where a person of ordinary prudence, diligence and discretion would so believe. . . . Thus, a third party can rely on the apparent authority of an agent when this is a reasonable interpretation of the manifestation of the principal.” Bolus v. United Penn Bank, supra, 363 Pa. Super. at 261-62, 525 A.2d at 1222. (citations omitted)

Husband contends that he only authorized Wife to enroll Abby to ski but not to release defendant from any claims he could otherwise pursue. Defendant contends that signing the release is part of the package that had to be signed in order to enroll in the program and that it was entitled to rely upon Wife’s apparent authority. Regardless of the strength or attractiveness of either argument, “[w]hether an agency relationship exists is a question of fact for the jury . . .”, Bolus v. United Penn Bank, supra, 363 Pa. Super, at 259, 525 A.2d at 1221, and where the facts are disputed, summary judgment on the issue is not proper.

Accordingly, the attached order is entered.

ORDER

And now, February 17, 1999, defendant’s motion for partial summary judgment, filed November 2,1998, is denied.


author: GORDON, J.,

text:
    Schwarz v. Frost

      Joseph T Piscitello, for plaintiff.

      Robert W. Lentz, for defendants.

      March 16, 1998
   GORDON, J.,

This is an action for legal malpractice and negligent infliction of emotional distress. The plaintiff, Janet Schwarz, engaged the defendant, Attorney Mark Frost, to represent her in an underinsured motorist automobile claim which occurred in 1985. The UIM claim was arbitrated in October 1990 from which the plaintiff received an award of approximately $82,000. In June 1994, the plaintiff filed suit against the defendant alleging that because of a sexual affair between the two of them during the time of his legal representation, he breached his fiduciary duty resulting in a lowered UIM award, and negligently inflicted emotional distress upon her which resulted in psychological and physical injuries.

At the close of discovery, the defendant moved for summary judgment asserting that the claim for the breach of a fiduciary duty was time-barred by the statute of limitations and that the plaintiff did not present evidence of facts for negligent infliction of emotional distress. This court agreed and granted the defendant’s motion for summary judgment, from which the plaintiff has appealed.

Factually, Schwarz has been a victim of psychological problems since she was a teenager. She has been diagnosed with and treated for a major depressive disorder, chronic and recurrent with associated features of agitation, mild nonpsychotic paranoia, and intense anxiety disorder with somatic symptoms. She has been hospitalized on several occasions for depression. She has consistently taken psychotropic medications for the past 10 years and continues treatment approximately five times per month for her condition.

Frost represented Schwarz in three automobile accidents. The first was for an occurrence in 1984 which was settled without litigation. The second was an accident in 1985 from which the plaintiff won an arbitration award in December 1990, and the third was in September 1989 which was ultimately handled by another attorney.

In early 1989, prior to the UIM arbitration, Schwarz and Frost began a consensual sexual affair. Schwarz stated that she entered the affair because she respected and trusted Frost. From that affair, a child was born in September 1989. Schwarz initially hoped for interaction between Frost and his son, but Frost wanted neither involvement nor public acknowledgment because of his marriage and career.

During the October 1990 arbitration hearing for the UIM claim, the insurance company argued that Schwarz’ physical and psychological injuries were not totally the result of the auto accident, but were partially the result of her personal and social situation. Schwarz believes the insurance company lowered her award on that basis and avers that Frost should have foreseen that his relationship with her would impact her psychological condition and lessen her award. Schwarz also avers that a sexual relationship between an attorney and his client is a conflict of interest and a breach of the attorney’s fiduciary duty.

In June 1994, Schwarz filed this malpractice and personal injury claim alleging two counts:

“(1) Negligent infliction of emotional distress. The plaintiff avers that because of her vulnerable psychological state, the defendant took advantage of his position of trust when he began a sexual relationship with her. The relationship, which the plaintiff says existed off and on until August of 1992, was extremely harmful to her and because of it, she has suffered psychologically, physically, and financially.
“(2) Breach of fiduciary duty. The plaintiff avers that her UIM claim was discounted because her personal relationship with Frost aggravated her psychological injuries. Frost breached his fiduciary duty to place his client’s interests above his own when he engaged in a sexual relationship with her. Were it not for the relationship between the two of them, her UIM claim would not have been reduced.”

In reviewing the defendant’s motion, we look first to the legal standard for summary judgment. It is well settled that the standard of review is that no genuine triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. The court must examine the record in the light most favorable to the non-moving party and resolve all doubts in her favor. Pa.R.C.P. 1035(b); Cosmas v. Bloomingdales Bros. Inc., 442 Pa. Super. 476, 660 A.2d 83 (1995); Aetna Casualty and Surety Company v. Roe, 437 Pa. Super. 414, 650 A.2d 94 (1994); Accu-Weather Inc. v. Prospect Communications Inc., 435 Pa. Super. 93, 644 A.2d 1251 (1994); Stidham v. Millvale Sportsmen’s Club, 421 Pa. Super. 548, 618 A.2d 945 (1992).

As to the two counts in the complaint, we will address Count Two, breach of duty, first and assume all facts stated by the plaintiff in her deposition, complaint, and affidavit, as well as the reports of her psychiatrists to be true.

BREACH OF FIDUCIARY DUTY

The defendant in this case has asked this court to grant his motion for summary judgment because Count Two is barred by the statute of limitations. The plaintiff avers that the statute of limitations was tolled due to duress.

Specifically, the plaintiff alleges that from the beginning, the defendant insisted that their sexual affair remain secret. Frost was married, had children and was respected in the legal community and he did not want the relationship made public. When the child was bom, Frost insisted that Schwarz not name him on the birth certificate.

Schwarz states that she wished to pursue a legal claim against Frost for his handling of the UIM claim and her emotional distress, but that from the time she became pregnant in February 1989, she did not assert her legal rights because of threats Frost made. She eventually confided in her psychiatrist that Frost was the father of her child and that she could not tell anyone because Frost had told her she would be “hurt.”

From May 1989 until 1992, the relationship was sporadic and infrequent, with the last sexual encounter in August of 1992. In September 1992, Schwarz met a man whom she ultimately married. Schwarz stated that because of a stable and supportive relationship with her new husband, she felt secure enough to finally bring a cause of action against Frost.

Frost continued to provide Schwarz with minimum legal counsel after the 1990 arbitration award, including the preparation of a will and the settlement of her townhouse. Schwarz does not allege that any of the defendant’s representations, other than the 1990 UIM claim, were handled negligently or involved a conflict of interest.

Therefore, the plaintiff’s breach of contractual duty allegation is limited to the 1990 arbitration. Because the arbitration award check was issued on January 10, 1991, the claim would be time-barred after January 9,1993, unless the statute was tolled. 42 Pa.C.S. §5524. The question this court had to resolve was whether the plaintiff’s assertions are sufficient to satisfy the elements of duress and thereby toll the statute of limitations.

The plaintiff avers that she did not bring her cause of action timely because of fear of what the defendant would do if she made their relationship and the birth of their child public.

There is very little case law in Pennsylvania that guides us on the issue of tolling of the statute of limitations by duress in legal malpractice cases, and none similar to these particular facts. In general, however, in contract cases, the state courts have defined duress as:

“[T]hat degree of restraint or danger, [whether] actually inflicted or threatened and impending, which is sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness. . . . The quality of firmness is assumed to exist in every person, . . . unless it appears that by reason of old age or other sufficient cause he is weak or infirm.... Where persons deal with each other on equal terms and at arm’s length, there is a presumption that the person alleging duress possesses ordinary firmness. . . . Moreover, in the absence of threats of actual bodily harm there can be no duress where the contracting party is free to consult with counsel.” See Hamilton v. Hamilton, 404 Pa. Super. 533, 536, 591 A.2d 720, 721-22 (1991) (citing Carrier v. William Penn Broadcasting Company, 426 Pa. 427, 431, 233 A.2d 519, 521, (1967)); Adams v. Adams, 414 Pa. Super. 634, 607 A.2d 1116 (1992), alloc. denied, 533 Pa. 617, 619 A.2d 699 (1993). See also, Schultz v. Connelly, 378 Pa. Super. 98, 548 A.2d 294 (1988).

In Schultz, supra, the appellant asked the court to overturn a child support agreement and order because he was not the natural father. The appellant stated that he signed the agreement under duress when the mother threatened to kill the child. The court held that the appellant’s evidence was meager and that duress must be “sufficient in severity or apprehension to overcome the mind of a person of ordinary firmness.” Id. at 105, 548 A.2d at 297 (citing Carrier v. William Penn Broadcasting Co., 426 Pa. 427, 431, 233 A.2d 519, 521 (1967)).

In order to determine if duress is present in the case sub judice, we must review the surrounding circumstances and actions of both the plaintiff and the defendant.

Schwarz proffers via her deposition testimony, interrogatories and affidavit that:

“When she informed Frost she was pregnant he became angry, and wanted her to get an abortion. On several occasions he told her she would be hurt or he would disappear and deprive the child of a father and education. (Schwarz affidavit 10/23/97.) When the child was bom Frost insisted that he not be named as the father, but did provide some financial support. (Deposition 1/21/97 p. 46.) In 1991, Schwarz hired a private investigator to obtain Frost’s financial records, and shortly thereafter hired an attorney to prepare a child support agreement. (Deposition 1/21/97 pp. 39-48.) Because Frost was not abiding by some of the terms of the agreement in 1992, Schwarz solicited an attorney friend of Frost’s for resolution. She subsequently hired another attorney in 1993 to increase her support payments. (Deposition 1/21/97 pp. 65-72.) Although Frost remained married during this time and Schwarz was involved in two other relationships with other males, their sexual relationship continued sporadically from May 1989 until August 1992 when Schwarz met her current husband. (Deposition 1/21/97 pp. 62-64; interrogatory no. 33, 9/94.)”

The record of the relationship between them shows that from the time of the arbitration award until the filing of the complaint, Schwarz was not shy about retaining legal counsel. During her conversations regarding child support with each of the attorneys, she disclosed information pertaining to the birth of an out-of-wedlock child and, by implication, her affair with Frost.

The child support agreement was memorialized in a signed and notarized writing in 1991, stating that each party acknowledges the retaining of independent counsel and that each was free of persuasion, fraud, undue influence or physical and emotional duress. Schwarz sought legal counsel under her own volition, and the support agreement was drawn up by her attorney. Inherent in any formal legal contract is the notion that a breach can and will be resolved in a court of law. The plaintiff also stated that during the period from 1990 until 1992, although she discussed the information pertaining to the paternity of her child and formal support, she did not seek advice regarding the UIM claim and Frost’s conflict of interest. Surprisingly, Schwarz continued to retain the defendant as her legal counsel as late as December 1993, after she and her current husband were married. Furthermore, despite the alleged threats of harm made by the defendant, the plaintiff gave deposition testimony that had she been asked about their relationship during the arbitration hearing, she would have testified truthfully. (Schwarz deposition 1/21/97 p. 180.)

The plaintiff must present evidence of duress sufficient to toll the statute before the substantive case will be presented to the jury. Schultz v. Connelly, supra. Reviewing the evidence in a light most favorable to the plaintiff and assuming arguendo the facts presented by the plaintiff to be true and that the defendant told her that she would be harmed, based on the foregoing behavior, we do not find that the plaintiff’s apprehension of bodily harm was sufficient in severity to overcome the mind of a person of ordinary firmness.

There is no doubt that the plaintiff suffers from a variety of mental illnesses. There is, however, no evidence that her mental malady was so great that she was unable to comprehend her circumstances or that she was unable to seek legal counsel on the matter. This is evident by the fact that she vigorously pursued her support issues against Frost with the assistance of her attorneys. See Adams v. Adams, 414 Pa. Super. 634, 607 A.2d 1116 (1992) (no duress found where plaintiff had access to legal counsel).

Because we find there is no duress, the statute of limitations began to run as of January 10, 1991 when the plaintiff was paid the amounts due, and was time-barred as of January 9, 1993.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Before reviewing the merits of the plaintiff’s claim for negligent infliction of emotional distress, we must address the issue of the independent tort of emotional distress. Pennsylvania does not recognize an independent tort of negligent infliction of emotional distress. For a plaintiff to recover, his or her psychological distress must manifest a physical impact or injury in order to state a cause of action. The Pennsylvania courts have ruled that physical impact or injury includes headaches, shortness of breath, tightening of the muscles in the neck, back and chest, nightmares, uncontrollable shaking, upset stomach and hyperventilation. Crivellaro v. Pennsylvania Power and Light Company, 341 Pa. Super. 173, 491 A.2d 207 (1985).

Schwarz has presented documentation of her physical harm to support her claim. Her medical records show treatment for headaches, nightmares, upset stomach, and intense tightening of muscles in her body producing severe pain. Because the requisite physical injury accompanies her emotional distress, this does not end our inquiry to determine if she has met her burden. We must move to the next level of analysis, i.e., does she fall within the category of recognized claimants?

In Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 633 A.2d 605 (1993), the Superior Court made it clear that Pennsylvania allows recovery for negligent infliction of emotional distress under two circumstances only, first, and most commonly, in cases in which there is liability to a bystander who suffers psychological and physical harm after witnessing injury to a close loved one. Pennsylvania uses the foreseeability test detailed in Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). Because there is no third party, we can dismiss with the analysis of foreseeability associated with a bystander cause of action.

Secondly, Pennsylvania has, in a few cases, recognized a cause of action for negligent infliction of emotional distress when the harm is the result of a breach of an underlying contractual or fiduciary duty. Such a duty must rise to a higher level than that owed from a humanitarian basis as a general member of society. As noted in Hoffman v. Sun Pipe Line Company, 394 Pa. Super. 109, 575 A.2d 122 (1990), when we look at duty we are asking whether a defendant is under any obligation for the benefit of the plaintiff. “[D]uty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” Id. at 114, 575 A.2d at 125 (quoting Prosser and Keeton on the Law of Torts, §54 at 358 (5th ed. 1984)).

In Pennsylvania, a breach of a duty may allow recovery for emotional distress where a professional is negligent in the delivery of professional services such as in the cases of Crivellaro v. Pennsylvania Power and Light, supra (employee forced into inpatient drug rehab program with no drug dependency) and Brown v. Philadelphia College of Osteopathic Medicine, 449 Pa. Super. 667, 674 A.2d 1130 (1996) (hospital liable for emotional distress where mother given dead fetus).

Our research has provided no cases directly on point with the issue at hand, and this may be a case of first impression. Yet there is some guidance we can take from the analysis of Crivellaro and Brown. The first hurdle the plaintiff must overcome is that the defendant breached a contractual or fiduciary duty owed to her.

PROFESSIONAL LIABILITY

We encourage laypersons to put their trust in attorneys when they have a legal matter, and we hold those attorneys responsible when they do not use due care in administering their professional services. They may be held civilly liable in tort for negligence or breach of contract; criminally liable for acts of fraud and misrepresentation; and subject to disciplinary action in accordance with the Rules of Professional Conduct promulgated by the Pennsylvania Supreme Court.

Former Mr. Justice Nelson of the United States Supreme Court commented on the relationship between an attorney and client thusly:

“There are few of the business relations of life involving a higher trust and confidence than those of attorney and client or, generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it.” Maritrans v. Pepper, Hamilton and Scheetz, 529 Pa. 241, 253-54, 602 A.2d 1277, 1283 (1992), quoting Stockton v. Ford, 52 U.S. 232, 247 (1850).

This is as true today as it was in 1850. We agree with Justice Nelson and conclude that the defendant was less than honorable when he entered into a romantic relationship with the plaintiff during his representation of her. In order for Frost to be civilly liable, however, for negligent infliction of emotional distress, he must have been negligent in the administration of a duty owed. Periodically, from 1984 until 1993, Frost was Schwarz’ counsel for various matters. During those times of representation, he had a contractual and fiduciary duty to her. Whether he breached his duty will be determined by the nature of the duty owed to the plaintiff.

As her attorney, Frost owed the plaintiff a contractual duty to exercise on her behalf the knowledge, skill and ability ordinarily possessed and employed by members of the legal profession similarly situated and to utilize reasonable care and prudence in connection with his responsibilities. Gautam v. DeLuca, 521 A.2d 1343 (N.J. Super. 1987). He also owed her a fiduciary duty which required him to act in a manner not contrary to or in conflict with the professional interests of his client.

A breach of a legal duty is another way of stating a cause of action for legal malpractice. As noted above, our research uncovered no case law on point and so we reviewed appellate cases on malpractice under other circumstances. Those cases show that in order to be liable for legal malpractice, the plaintiff must show three essential elements: (1) the employment of the attorney or other basis for duty; (2) the failure of the attorney to exercise ordinary skill and knowledge, or acting contrary to the client’s professional interests; and (3) that such negligence was the proximate cause of damage to the plaintiff. White v. Kreithen, 435 Pa. Super. 115, 644 A.2d 1262 (1994); McPeake v. Cannon, 381 Pa. Super. 227, 553 A.2d 439 (1989).

The current complaint alleges that the defendant negligently inflicted emotional distress upon the plaintiff by (1) engaging in sexual contact after her release from the psychiatric unit at the Hospital of the University of Pennsylvania; (2) repeated physical [sexual] contact with the plaintiff which was harmful to her psychiatric condition; (3) failure to comport with the standard of care of a lawyer via carelessness and recklessness, negligence as a matter of law, and exploitation.

We can dispense with the negligent legal representation claim. The only question as to whether the defendant was negligent in the performance of his contractual duties relates to the UIM arbitration award and is not decided here on the merits. As discussed above, this court granted a motion for summary judgment as to that count based on the statute of limitations. The plaintiff does not claim in her complaint that other than the UIM automobile claim, Frost breached any of his contractual duties to her.

Therefore, the plaintiff’s remaining claim is that the defendant continued to have a consensual sexual relationship with her and that the affair resulted in emotional distress and aggravation of her psychiatric condition. Does the attorney have a fiduciary duty to protect his client from psychological harm? We believe not.

In McPeake, a criminal defendant jumped from a window after a jury found him guilty. His estate filed a wrongful death suit alleging that it was the attorney’s legal malpractice that caused the suicide because the attorney knew of the decedent’s emotional problems and prior suicidal tendencies. The decedent’s estate alleged that decedent’s actions were foreseeable and therefore the attorney was liable. The court had to answer whether an attorney’s duty extended to protecting a client from his own suicidal tendencies. The answer was that it does not, and thus, proximate causation could not be established as a matter of law. The Superior Court ruled that suicide is so extraordinary an independent intervening act that it cannot be reasonably foreseeable and an attorney is not responsible for the suicidal acts of a client.

The court stated that attorneys do not possess the professional expertise similar to that of mental health institutions or doctors and that the connection between the practice of law and the decedent’s harm was too attenuated to impose liability. Presently, we must determine whether that holding also applies to other manifestations of psychological or emotional weaknesses. Although the Pennsylvania courts have not answered that question, other jurisdictions have responded to this issue. For example, in the New Jersey case of Gautam v. DeLuca, supra, the court addressed whether damages for emotional distress were recoverable in a legal malpractice action. The plaintiffs in Gautam sued because the attorney who handled their original case did not do so with due care towards them, and as a result they developed various psychological and physical problems including back pains, insomnia, constant headaches and bladder control problems.

The New Jersey court stated that emotional distress damages should not be awarded in legal malpractice cases in the absence of egregious or extraordinary circumstances. The court reasoned that whether viewed in the context of proximate cause or as a matter of public policy, the judicial system is not always the answer for life’s disappointments. “Aggravation, annoyance and frustration, however real, constitute unfortunate products of daily living. Damages for idiosyncratic psychiatric reactions should not be permitted.” Id. at 1349. The court went on to say that it readily acknowledged that mental and emotional distress is often just as real as physical pain. As a practical matter, however, legal responsibility must be limited to those causes so significantly connected with the result that imposing liability is justified.

Schwarz’ complaint in the case at hand alleges that Frost breached his fiduciary duty of trust and due care by engaging her in a sexual relationship with full knowledge of her emotional and psychological state. For a breach of a fiduciary duty, there must be an act contrary to the client’s professional interest, such as representing a competitor, divulging confidential information, misuse of funds, or usurping a partnership opportunity. Maritrans v. Pepper, Hamilton and Scheetz, supra.

McPeake deals with a criminal defendant and issue of suicide, and Gautam involves the lack of professional care in representing an underlying litigation. Although neither are precisely on point, together they help guide us in the direction we must take in our analysis of the present case. In order to hold an attorney legally liable, the plaintiff will need to show that the attorney either breached his contractual duties or acted contrary to his client’s professional interests; not simply that the plaintiff had a fragile mental state and could not accept the outcome of the litigation (or the vagaries of a meretricious affair).

The parties here chose to enter into a consensual extramarital affair, and it turned out badly. Such behavior may have been immoral and unethical for the defendant. But unless there is a claim that rises to the level of malpractice based on a breach of a professional or contractual duty, Frost is no more liable to Schwarz than are the many other Americans who make bad judgments in choosing a mate or engage in nefarious extra-marital coitus. To hold otherwise under the umbrella of negligent infliction of emotional distress would be to stretch the boundaries of Sinn, Crivellaro, Armstrong, and Brown.

Notwithstanding that one may empathize with the plaintiff, not every wrong constitutes a legally cognizable cause of action. Lubowitz v. Albert Einstein Medical Center, 424 Pa. Super. 468, 623 A.2d 3 (1993). “The law is not the guarantor of an emotionally peaceful life. Tort law cannot protect any of us from the emotional slings and arrows of daily living.” Armstrong, 430 Pa. Super at 56, 633 A.2d at 615. Under these circumstances, such decisions are left to the parties’ better judgment, and the attorney’s professional responsibility and code of ethics.

Based on the foregoing, the defendant’s motion for summary judgment was granted.


author: KIESER, J.,

text:
    Smith v. United States Fidelity & Guaranty Co.
    C.P. of Lycoming County,
    no. 97-01,251.

      Robert B. Elion, for plaintiff.

      Robert A. Seiferth, for defendant.

      December 17, 1998
   KIESER, J.,

This matter is before the court on the defendant’s motion for judgment on the pleadings, filed July 15, 1998. The matter came to be heard at oral argument before this court on October 20, 1998. At that time, an order was entered memorializing the parties’ stipulations that: (1) the court shall exercise jurisdiction for purposes of determination of the statute of limitations issue as presented in the motion; (2) the court’s ruling on that issue would be final for purposes of rendering a judgment and appeal; and (3) neither party would challenge the court’s jurisdiction to render a decision with reference to the statute of limitations issue. It was also determined at the time of entering the order that defendant USF&G has named an arbitrator and is in agreement that should the court decide against the defendant on the statute of limitations, the parties would proceed immediately to arbitration on the merits unless a timely appeal of such decision was filed. Accordingly, plaintiff’s request for a mandatory injunction set forth in Count 2 of plaintiff’s complaint filed March 9, 1998 is rendered moot. See order and attached stipulation filed October 22, 1998.

A motion for judgment on the pleadings is properly granted if the pleadings show no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of law. Kelly v. Nationwide Insurance Company, 414 Pa. Super. 6, 606 A.2d 470 (1992). Amotion for judgment on the pleadings is limited exclusively to the pleadings themselves, and no outside material may be considered. The motion for summary judgment, by contrast, is designed to provide for an equivalent summary disposition of the case where the pleadings may be sufficient on their face to withstand a demurrer but where in actuality there is no genuine issue of fact. The lack of a material factual dispute may be conclusively established through depositions, answers to interrogatories, admissions or affidavits. Goodrich-Amram 2d § 1035(a)(3); Harvey v. Hansen, 299 Pa. Super. 474, 445 A.2d 1228 (1982). See also, Pa.R.C.P. 1035.1 et seq.; cf. Pa.R.C.P. 1034. Notwithstanding the defendant’s styling of the motion as a motion for judgment on the pleadings, the parties have stipulated the statute of limitations issue before this court is to be determined under the summary judgment procedure. Accordingly, we will consider the 14 exhibits attached to plaintiff’s complaint (A-N), and the deposition of defendant’s claim representative, Mr. Frank Connor, which was taken on June 24, 1998.

The parties agree that the contractual four-year statute of limitation established by 42 Pa.C.S. §5525 governs this case but disagree as to the date when the four-year period began to run. For purposes of deciding the motion, the following facts are considered by the court in a light most favorable to the non-moving party:

(1) This action arises out of an automobile accident which occurred on October 3, 1991.

(2) The plaintiff, Ellen L. Smith, was operating a vehicle owned by her mother, Beryl I. Smith.

(3) The vehicle accident occurred as a result of the negligence of Kenneth Stewart, now deceased, who failed to stop at a red light which controlled his lane of travel. As a result of the accident, plaintiff sustained personal injuries.

(4) At the time of the accident, Kenneth Stewart was insured under an automobile policy issued by State Farm Insurance Company. Plaintiff’s automobile was insured by defendant, United States Fidelity & Guaranty Company (USF&G).

(5) On or about July 27,1993, plaintiff through counsel received an oral offer from a representative of State Farm to settle her claim against Kenneth Stewart in the amount of $25,000, the policy limits of Mr. Stewart’s insurance coverage.

(6) The next day, July 28, 1993, plaintiff’s counsel wrote a letter to the State Farm representative, seeking confirmation of the $25,000 offer and indicating plaintiff’s intent to pursue a claim for underinsured motorists’ benefits.

(7) On the same date, plaintiff’s counsel wrote a letter to David Daley, claims representative for defendant USF&G, advising of the $25,000 policy limit offer of State Farm, notifying USF&G of plaintiff’s intent to pursue the underinsured motorists’ claim under her policy with USF&G, and further seeking USF&G’s waiver of its subrogation rights against Kenneth Stewart. See exhibit “B” to plaintiff’s complaint.

(8) On July 30, 1993, State Farm wrote counsel for plaintiff, enclosing a release form and stating that State Farm would hold the settlement check until it received a release signed by the plaintiff. See exhibits “C,” “D” and “E” to plaintiff’s complaint.

(9) Plaintiff signed the State Farm release on August 3, 1993.

(10) On August 6, 1993, plaintiff’s counsel again wrote to USF&G (Frank Connor being its representative) enclosing the July 30, 1993 letter of State Farm and again seeking USF&G’s waiver of subrogation. See exhibit “F” to plaintiff’s complaint.

(11) On August 26, 1993, plaintiff’s counsel once again wrote to defendant USF&G (Patricia F. Natale, its claims adjuster) advising of the policy-limit’s offer of State Farm and once again seeking USF&G’s waiver of subrogation. See exhibit “G” of plaintiff’s complaint.

(12) On September 10, 1993, on behalf of USF&G, Frank Connor wrote plaintiff’s counsel, advising that USF&G was seeking asset information regarding Mr. Stewart before making a decision relative to waiver of subrogation. See exhibit “H” to plaintiff’s complaint.

(13) On October 1, 1993, plaintiff’s counsel wrote defendant USF&G, enclosing the July 30, 1993 letter of State Farm and again seeking USF&G’s waiver of subrogation. See exhibit “I” to plaintiff’s complaint.

(14) On October 6, 1993, defendant USF&G orally advised plaintiff’s counsel USF&G had agreed to waive its subrogation rights against Mr. Stewart.

(15) Plaintiff’s counsel then advised State Farm of the executed release of Mr. Stewart, and State Farm could be provided bond upon USF&G’s commitment to waive subrogation.

(16) On October 11, 1993, a representative of State Farm wrote to plaintiff’s counsel, enclosing its settlement check in the amount of $25,000. See exhibit “J” of plaintiff’s complaint.

(17) On October 14, 1993, USF&G wrote plaintiff’s counsel, offering its written waiver of subrogation. See exhibit “L” to plaintiff’s complaint.

(18) On October 15,1993, counsel for plaintiff wrote to a representative of State Farm, enclosing the release of plaintiff. See exhibit “M” to plaintiff’s complaint.

(19) On August 14, 1997, plaintiff, in pursuit of the claim under her USF&G policy for underinsured motorists’ benefits, appointed an arbitrator and notified USF&G appropriately thereof.

(20) On August 20, 1997, plaintiff filed a praecipe for a writ of summons against USF&G.

(21) On March 9,1998, plaintiff’s complaint requesting relief in two counts was filed. Count 1 asked the court to give relief by way of a declaratory judgment regarding the rights of the parties. Count 2 was a request for a mandatory injunction which, as previously discussed, has been mooted.

Given the parties’ request that the court assume jurisdiction of the statute of limitations issue, the first two grounds for defendant’s motion for judgment on the pleadings, whether the arbitration panel must in the first instance decide the limitations issue and whether the judicial determination should be rendered within the context of a motion for summary judgment rather than for a motion for judgment on the pleadings, have been resolved. The issue is whether plaintiff’s claims are barred by the applicable statute of limitations of four years. More precisely, the issue is whether the time under the statute begins to run July 28, 1993, the date when plaintiff learned of the third party tortfeasor’s insurance limits through application of the “discovery rule;” or on October 14, 1993, when defendant USF&G advised plaintiff in writing that USF&G would waive its subrogation rights against the third party tortfeasor.

The defendant asserts that July 28, 1993 is the undisputed time at which plaintiff acknowledged its intent to pursue the underinsurance claim. Defendant further asserts that this court should analogize this case with the existing law respecting uninsured claims. According to the Pennsylvania Superior Court’s 1983 decision in Boyle v. State Farm Mutual Auto Insurance Company, 310 Pa. Super. 10, 456 A.2d 156 (1983), the statute starts to run on an uninsured claim when the following events have occurred:

(1) The insured was in a motor vehicle accident;

(2) The insured sustained bodily injury as a result of that accident; and

(3) The insured knows of the uninsured status of the other owner or operator.

In uninsured cases, this “discovery rule” has been further refined to provide that the rule is objective in that it fixes knowledge on one who “knows or should have known” of the uninsured status of the other party. See Seay v. Prudential Property and Casualty Insurance Co., 375 Pa. Super. 37, 543 A.2d 1166 (1988). Applying similar logic, defendant here argues that as of July 28, 1993, when plaintiff’s counsel had reached a settlement with the liability carrier based on policy limits, the statute of limitations commenced running because the insured “knew of the existence of an underinsured claim.” See defendant’s brief in support of motion for judgment on the pleadings, p. 6. Thus, if the court accepts the defendant’s position and finds that the statute began running on July 28, 1993, plaintiff’s complaint would clearly be barred by the four-year statute of limitations as the plaintiff’s appointment of an arbitrator on August 14, 1997 was outside of the statute.

The plaintiff counters that the claim for underinsured motorists’ benefits could not have accrued at least until the time that the defendant provided her with its written waiver of subrogation rights and its consent to settle her claim with Mr. Stewart. It points to the defendant’s insurance contract which provides, relating to “under-insured motorists’ coverage — Pennsylvania” .... “We do not provide underinsured motorists’ coverage for ‘bodily injury’ sustained by any person if that person or the legal representative settles the bodily injury claim without our consent.” See insurance contract attached to plaintiff’s complaint as exhibit “B.” Plaintiff further points to the deposition testimony of representative Frank Connor on June 24, 1998 who, in response to the question, “Did your internal procedure require that a written waiver of subrogation be executed before you could settle an underinsurance claim?” responded, “I think that is a fair statement.” Connor deposition, p. 33. Thus, plaintiff argues that if it had settled its case with Mr. Stewart without the consent of USF&G, her rights to the underinsured motorists’ benefits would have been forfeited. Plaintiff further argues that USF&G should not be permitted to withhold the consent to settle and waiver of subrogation to plaintiff’s detriment, respecting the limitation issue. The court agrees with plaintiff’s analysis.

During the period in which USF&G withheld its consent and continued its investigation, the plaintiff was not in a position to bring suit to enforce the underinsured benefits claim. The matter is thus factually and legally distinguishable from the uninsured analysis set forth above, where there is no such impediment to the bringing of a claim, and the statute could reasonably be interpreted to run against a plaintiff who fails to pursue such a claim after having notice of its existence. A party-plaintiff injured in an automobile accident, upon learning the offending motorist has no insurance, can immediately pursue a claim against their own insurance carrier for uninsured benefits. This is not so if the injured party-plaintiff discovers the offending motorist is insured, but the liability limit of that coverage is inadequate to pay the party-plaintiff’s claims.

In the decision of Daley-Sand v. West American Insurance Company, 387 Pa. Super. 630, 564 A.2d 965 (1989) the Pennsylvania Superior Court has to some extent addressed the rationale that this court employs here. In that case, the court recognized an equitable remedy in favor of a plaintiff faced with an under-insurer’s refusal to give consent by giving the under-insurer the option of paying the settlement within a fixed period of time and retaining its rights to subrogation, or waiving its subrogation rights. This was a specific recognition of the dilemma in which a plaintiff is placed in such a scenario. It illustrates the fundamental unfairness that would flow from allowing a defendant to dictate the terms on which a plaintiff can act to protect its claims and then try to benefit from a limitations period shortened by the defendant’s own conduct in not providing for a timely resolution of its position on subrogation. It does not matter that the defendant may have legitimately taken a long time to make an intelligent subrogation decision. During the time USF&G took to act, the plaintiff in the case at bar was effectively paralyzed. We cannot in good conscience hold as a matter of law that the plaintiff in this case should have (or even could have) pursued a claim which contractually had not ripened until the liability and coverages of the defendant Stewart under the State Farm policy were resolved.

Thus, we hold that the statute of limitations in this case began to run on October 14, 1993 when USF&G provided its written waiver of subrogation rights. Plaintiff’s underinsurance claim against USF&G was commenced by writ of summons on August 20, 1997. This occurred within the four-year limitations period. Accordingly, the defendant’s motion for summary judgment must be denied.

ORDER

And now, December 17, 1998, the defendant’s “motion for judgment on the pleadings” filed July 15,1998, regarded as hereinabove described as a motion for summary judgment as the court has, with the concurrence of the parties, considered additional evidence beyond the pleadings, for the reasons set forth in the foregoing opinion in support of this order, is denied.

      . Briefs of the parties have been received and considered as follows: defendant’s brief in support of the motion filed September 29, 1998 and plaintiff’s brief in opposition filed October 14, 1998.

      . Pennsylvania Rule of Civil Procedure 1035.1 defines the “record” to be utilized by the court on a motion for summary judgment to include (1) the pleadings, (2) depositions, answers to interrogatories, admissions and affidavits, and (3) reports signed by an expert witness that would, if filed, comply with Rule 4003.5(a)(1), whether or not the reports had been produced in response to interrogatories.


author: P.W. SCHMEHL, J.,

text:
    Schappell v. Schappell

      C.P. of Berks County,
    no. 1492-95 A.D.

      Cheryl A. Rowe, for plaintiff.

      Charles F. Fitzpatrick, for defendant.
    March 24, 1998
   P.W. SCHMEHL, J.,

This matter is before the court on Ms. Schappell’s, petitioner, petition for special relief in which she asserts that the postnuptial agreement is invalid because there was not adequate disclosure of marital assets. The petitioner alleges that the postnuptial agreement failed to make a full and fair disclosure of the marital assets and that she did not have sufficient knowledge of Mr. Schappell’s, respondent, financial situation at the time the agreement was executed. At the hearing, however, the petitioner testified that she filed the petition for another reason which is discussed below.

The parties to this action married in September 1977 and divorced in August 1995. In February and March of 1995, the parties negotiated a postnuptial agreement thatwas executed on March 29,1995. The parties arrived at the terms of the agreement by themselves, and the respondent took the negotiated terms to Attorney Lynn Erickson who drafted the formal postnuptial agreement. Although the petitioner denies meeting in Attorney Erickson’s office to review the details of the postnuptial agreement, the testimony of Attorney Erickson and the respondent indicates that a meeting was in fact held and that all the material terms in the agreement were addressed. Furthermore, the petitioner was advised on several occasions that she should retain her own legal counsel.

The agreement provided for the disposition of certain assets of the marital estate. It did not purport to list all of the assets, nor did it list the values of the assets. Specifically, the agreement did not refer to or specify the values of the respondent’s pension plan, his interest in a computer business, nor his interest in rental properties owned by him and another person. Despite the absence of a full listing of every asset, the petitioner had, in fact, a working knowledge of all the assets of the parties.

The testimony at the hearing elicited that the petitioner knew about the respondent’s computer business and real estate partnership, neither of which has succeeded in making any significant amount of money and that his computer company barely breaks even on a year-to-year basis. She also knew about the respondent’s pension, and the respondent has not hidden the value of his pension from the petitioner. All along the petitioner had been informed of the formula to determine the value of the pension, and, in fact, such information was and is, by law, available to the public. The parties had even reviewed the pension payout arrangements on an occasional basis. On one occasion, the parties explored the opportunity of creating additional sources of revenue for their retirement because the pension would be inadequate. The result was the opening of a joint IDS account. The petitioner had full and fair opportunity to deal with the IDS account and knew about the transactions in and out of the account over the years.

Also important is the fact that the petitioner kept the financial books and records for the family and even prepared monthly budgets on the family computer. Furthermore, she has a great deal of practical accounting experience and is currently in charge of bookkeeping for a factory operating in or about Hamburg, Pennsylvania. She controls receipts and disbursements and in her career has controlled other corporate accounts.

The postnuptial agreement also stated that the parties each made a full disclosure of their respective assets and obligations and that each was fully informed of the other’s assets. In the agreement, the parties agree that it constitutes a “fair, equitable and complete settlement.” At the hearing, the petitioner testified that she had been satisfied with the respondent’s promises which related to the agreement but were nonetheless beyond the intended scope thereof. One such promise involved an alleged oral understanding which established in the children the right to the petitioner’s “share of the assets.” The petitioner is now fearful that the children will not receive their promised share of the marital assets proffered in this alleged “side” agreement.

When determining the validity of postnuptial agreements, the courts are to apply the same principles of law as are applied to antenuptial agreements. Adams v. Adams, 414 Pa. Super. 634, 637, 607 A.2d 1116, 1118 (1992). “[F]ull and fair disclosure of the financial positions of the parties is required” in order to have a valid postnuptial agreement. Simeone v. Simeone, 525 Pa. 392, 402, 581 A.2d 162, 167 (1990). The “disclosure need not be exact, so long as it is ‘full and fair.’ ” Id. at 403, 581 A.2d at 167. The adequacy of the disclosure is based on the facts and circumstances of each individual case. Nigro v. Nigro, 371 Pa. Super. 625, 632, 538 A.2d 910, 914 (1988). A presumption of full and fair disclosure arises if an agreement provides that such a disclosure has been made. Simeone at 403, 581 A.2d at 167. This presumption can be rebutted through an assertion of fraud or misrepresentation but only if proven by clear and convincing evidence. Id.

Normally, contracting parties are bound by their agreements regardless of whether the terms were read and fully understood and regardless of whether the agreements embodied reasonable or good bargains. Simeone, at 400, 581 A.2d at 165. Furthermore, failure to consult with independent legal counsel is not an adequate ground to declare an agreement void. Id. at 400-401, 581 A.2d at 166. If the parties viewed an agreement as reasonable at the time of its inception, they cannot later try to evade its terms by asserting unreasonableness. Id. at 401, 581 A.2d at 166.

Because the agreement between the petitioner and respondent states that full disclosure had been made, a presumption arises that such disclosure was in fact made and the petitioner has the burden of proving by clear and convincing evidence that such is not the case. Furthermore, the petitioner is unable to have the agreement declared void because of unreasonableness or her failure to consult with independent legal counsel. Because the petitioner was satisfied with the agreement when she executed it and because she failed to prove by clear and convincing evidence that the agreement was not based on full and fair disclosure, the court declares the postnuptial agreement to be valid and denies the petitioner’s requested relief. Furthermore, the petitioner’s bringing the petition to protect her children’s interests in her share of the assets arising out of a side agreement obviates her petition in that she is not arguing the unfairness of the postnuptial agreement.

Not only did the petitioner acknowledge full and fair disclosure of the respondent’s assets and obligations and her rights under the law by signing the postnuptial agreement, Attorney Erickson reviewed the agreement and the petitioner’s rights with the petitioner in her office. Although the agreement did not refer to or list the values of the respondent’s pension plan, computer business or real estate partnership, the petitioner was more than merely aware of these assets. Nothing was hidden from the petitioner, and the failure to list these assets and their values in the postnuptial agreement is not sufficient to “obscure” the general financial resources of the respondent. As the events have played out, the respondent’s computer and real estate business cash flow was and is minimal and not much to disclose. Perhaps the value of the real estate held by the real estate partnership should have been disclosed, but the petitioner did know of it and must have had some idea as to its value based on her tracking of the family’s cash flow and other assets.

As for the pension, the petitioner must have known the approximate value otherwise she may never have agreed with the respondent to open a supplemental IDS account after their discussions concerning resources available for retirement. Furthermore, the respondent’s interest in the IDS account was not hidden from the petitioner as it was a joint account and the petitioner had access to it. The petitioner’s belief that she had no rights to the computer business, rental properties, or pension, although initiated by the respondent, does not make the disclosure of assets any less full or fair. The petitioner had an opportunity to take the agreement and facts known to her to independent counsel for advice. There has to be a point in time where, given her access to his pension information, her background, and Attorney Erickson’s warning, the petitioner has to accept responsibility for her failure to delve more carefully into the value of the marital estate.

The petitioner relies on the case of Mormello v. Mormello, 452 Pa. Super. 590, 682 A.2d 824 (1996) as a case of similar facts where the postnuptial agreement was declared to be invalid. In both cases, the husband was a police officer and the wife could not and did not involve herself in the husband’s police duties. Involvement in police duties, however, has no bearing on knowing the income of a police officer. Furthermore, in Mormello, the wife had no knowledge of the husband’s monthly pension payments or his gross salary from his current job. In the instant case, the petitioner knew the formula to determine the respondent’s monthly pension payments and also had knowledge of the approximate value of the pension based on the parties’ discussions regarding retirement. Furthermore, as the person who prepared the monthly household budget, the petitioner must have been aware of the respondent’s salary in order to adequately budget the household income and expenses.

Another distinguishing feature of the Mormello case is that the property settlement agreement truly obscured the general financial resources of the parties. The only valuation found in the agreement was a $65,000 mortgage remaining on the marital home. The husband agreed to be responsible for the $888 per month mortgage payment. The wife, however, was receiving disability payments which paid $833.33 of the monthly mortgage payments, which meant that the husband was responsible for only $54.67, barely more than 6 percent of the monthly mortgage payment. Although the petitioner argues that such tactics are being used in the instant case with respect to the IDS account, such is not the case. Pursuant to the postnuptial agreement, the petitioner received a $14,000 payment allegedly for her interest in the marital home and is also to receive another $ 10,000 in the near future. The petitioner argues that the $14,000 came from the parties’ IDS account in which the petitioner already has a 50 percent interest anyway. When combining the equity in the home and the monies in the IDS account, however, the value of the assets taken together is between $47,000 and $50,000. Petitioner’s receipt of a total of $24,000 is approximately 50 percent of the combined value of the IDS account and the equity in the marital home. Her failure to realize that the $14,000 came from the IDS account is not the result of the respondent’s intent to obscure the parties’ general financial resources. Furthermore, according to the petitioner’s own testimony, what is left of her share of the assets is to be given to the parties’ children per the terms of an oral understanding that was reached by the parties at or about the time of execution of the postnuptial agreement.

Although, perhaps, the “vagueness” of the agreement did not help to inform the petitioner of the financial situation of the parties, it did not actively attempt to obscure their situation. Full and fair disclosure need not be in the agreement, and the petitioner is an intelligent woman who displays knowledge of the parties’ general financial resources.

Because it finds that there was full and fair disclosure of the parties’ general financial resources, the court enters the following order:

ORDER

And now, March 24, 1998, respondent’s petition for special relief filed on December 5, 1997 is dismissed.