text:
    Jenkins v. Krivosh

      C.P. of Lawrence County,
    No. 11212 of 2012

      Phillip L. Clark, for plaintiffs.

      Phillip J. Sbrolla, for defendant.
    July 16, 2014
   COX, J.,

Before the court for disposition is the motion for summary judgment filed on behalf of the defendant Heron’s Landing, LLC, t/d/b/a Olde Stonewall Golf Club (hereinafter “Heron’s Landing”), which argues that the plaintiffs have failed to present evidence to create a question of fact that employees of Heron’s Landing served alcohol to defendant John Krivosh when he was visibly intoxicated. Heron’s Landing also contends that the plaintiffs should not be provided with additional time to procure a toxicology expert as that, by itself, is not sufficient evidence to permit the plaintiffs’ claim to survive summary judgment.

On December 31, 2011, defendant John Krivosh left his residence at approximately 8:00 a.m. and traveled with friends to search for campsites in Tidioute, Pennsylvania. They stopped for lunch at approximately 12:00 noon to eat lunch and defendant Krivosh drank one beer. He eventually returned home at approximately 4:00 p.m. defendant Krivosh then made arrangements to meet defendant Mary Frances Venn at Shakespeare’s Restaurant & Pub (hereinafter “Shakespeare’s Restaurant”), which is owned by Heron’s Landing, for drinks. Prior to going to the restaurant, defendant Krivosh drank two “gulps” of vodka directly from the bottle, which he estimated was approximately eight ounces. He then placed the vodka bottle in his vehicle as he intended on consuming more of it later to celebrate New Year’s Eve. Defendant Venn arrived at Shakespeare’s Restaurant first between 6:00 and 6:30 p.m. She ordered a vodka tonic with a twist of lime. Shortly thereafter, defendant Krivosh arrived and ordered himself and defendant Venn a vodka tonic. They were seated at the bar among 10 to 15 other patrons and began conversing when defendant Krivosh informed defendant Venn that he was terminating their relationship. Defendant Krivosh consumed his drink and ordered another vodka tonic. He drank half of the second vodka tonic before departing the restaurant. Defendant Krivosh left the restaurant first and was followed by defendant Venn. Both individuals drove separately in their own vehicles, but defendant Venn followed defendant Krivosh as, according to her deposition testimony, she did not know the route to return home. They eventually arrived at a traffic light. Once the light changed to green, defendant Krivosh sped away and defendant Venn temporarily lost sight of his vehicle. As defendant Krivosh was driving outside of defendant Venn’s view, defendant Krivosh attempted to navigate a curve in the. road, he crossed into the other lane of the roadway and struck a vehicle operated by plaintiff Elvin W. Jenkins, who was severely injured. Defendant Venn approached the site of the accident and she parked her vehicle behind defendant Krivosh’s truck. After the collision, defendant Krivosh exited his vehicle and approached the plaintiffs’ vehicle where he noticed that the driver, Mr. Jenkins, was trapped. Defendant Krivosh then returned to his vehicle and disposed of the vodka bottle by throwing it over the hillside. Michael Paul Allen observed defendant Krivosh throw the vodka bottle over the hill and stated in his affidavit that defendant Krivosh could not walk straight. He also explained that defendant Krivosh had to hold onto his truck to stand up, his speech was slurred, his eyes were bloodshot and glassy, and he was obviously intoxicated.

Patrolman Jon W. Disher of the Ellwood City Police Department testified in his deposition that he responded to a communication informing him of an automobile accident and he arrived on the scene of the accident at 7:42 p.m. Upon arrival, officer Disher observed defendant Krivosh leaning on his vehicle in an attempt to balance himself. The officer approached defendant Krivosh and he observed that defendant Krivosh had glassy, bloodshot eyes, he was swaying in a circular motion and he emanated an odor of alcohol. Officer Disher began speaking with defendant Krivosh, who was attempting to keep his mouth closed in an effort to hide the odor of alcohol. The officer questioned defendant Krivosh concerning the bottle of vodka that he threw over the hillside, which defendant Krivosh denied. However, officer Matthew Liberatore, also from the Ellwood City Police Department, recovered a vodka bottle after the hillside was illuminated by the local fire department. Defendant Krivosh insisted that he did not drink from the bottle and only drank at Shakespeare’s Restaurant. At that time, officer Disher administered field sobriety tests to defendant Krivosh. The first field sobriety test administered was the horizontal gaze nystagmus, which consists of the police officer holding a pen in front of the potentially intoxicated person and moving it to the right and left side. Upon performing this test, defendant Krivosh’s eyes did not track the pen and jumped from one position to the other, which indicated that he had a blood alcohol content over .10 percent. Next, officer Disher administered the walk and turn test, in which defendant Krivosh was instructed to walk nine steps forward with his heel placed just in front of the toes of his opposite foot, turn around and then walk nine more steps in that manner. Defendant Krivosh failed on the first nine steps and had one misstep on the second nine steps. According to the police report, officer Disher also administered a portable breath test, which indicated that defendant Krivosh’s blood alcohol content was .09 percent. Officer Disher then placed defendant Krivosh under arrest and transported him to Ellwood City Hospital to undergo a blood test to determine his blood alcohol content. Officer Disher testified that, upon first approaching defendant Krivosh, it was apparent to any reasonable person that he was intoxicated.

On October 16, 2012, the plaintiffs filed suit seeking damages against defendant Krivosh, defendant Venn and Heron’s Landing. The claims against Heron’s Landing are based upon alleged violations of the Dram Shop Act. On November 20, 2012, defendants Krivosh and Venn filed preliminary objections to complaint, which were overruled in part and sustained in part by opinion and order of court issued by the Honorable Eugene E. Fike, senior judge, dated May 7, 2013. In the interim, Heron’s Landing filed its answer, new matter and crossclaims on February 28, 2013. The plaintiffs then filed an amended complaint on May 14, 2013, to which Heron’s Landing filed an answer, new matter and crossclaim to the plaintiffs’ amended complaint on June 18,2013. Eventually, Heron’s Landing filed the current motion for summary judgment on January 17, 2014, which argues that the plaintiffs have failed to present evidence to create a question of fact that employees of Heron’s Landing served alcohol to defendant Krivosh when he was visibly intoxicated and the plaintiffs should not be provided with additional time to procure a toxicology expert as that, by itself, is not sufficient evidence to permit the plaintiffs’ claim to survive summary judgment. The plaintiffs have filed the expert report of Karl E. Williams, MD, MPH, on May 15, 2014, with their brief in answer to defendant’s motion for summary judgment. Therefore, the court no longer has to address that issue as the plaintiffs do not need further time to procure an expert report.

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). The mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial. The summary judgment rule exists to dispense with a trial of the case or, in some matters, issues in a case, where a party lacks the beginnings of evidence to establish or contest a material issue. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, (1996), certiorari denied, 519 U.S. 1008 (1996).

Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2. Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspapers, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999). If the non-moving party does not respond, the trial court may grant summary judgment on that basis. Pa.R.C.P. No. 1035.2(d); see also Harber Philadelphia Center City Office Limited v. LPCI, L.T.D., 764 A.2d 1100 (Pa. Super. 2000).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 752 A.2d 339 (2000). In passing on a motion for summary judgment, the court must examine the record in a light most favorable to the non-movant and resolve any doubt in his favor. Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile v. H&R Block, supra. Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

The plaintiffs’ claims against Heron’s landing are based upon 47 P.S. §4-493(1), which states:

It shall be unlawful —
(1) Furnishing liquor or malt or brewed beverages to certain persons. For any licensee or the board, or any employe[e], servant or agent of such licensee or of the board, or any other person, to sell furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any minor... (emphasis added).

In an action based upon a violation of the Dram Shop Act, the plaintiff is required to establish the following: “(1) that an employee or agent of [the defendant] served the [plaintiff] alcoholic beverages at a time when he [or she] was visibly intoxicated; and (2) that this violation of the statute proximately caused his [or her] injuries.” Fandozzi v. Kelly Hotel, Inc., 711 A.2d 524, 525, 526 (Pa. Super. 1998) (citing Johnson v. Harris, 419 Pa. Super. 541, 548-550, 615 A.2d 771, 775 (1992)). A plaintiff can establish that an establishment served alcohol to a visibly intoxicated patron through circumstantial evidence in the absence of direct eyewitness evidence. Id., 711 A.2d at 526. A licensee will not be held liable based upon any consideration, such as blood alcohol content, that is not externally apparent as the law focuses on visible signs of intoxication. Laukemann v. Com., Pennsylvania Liquor Control Bd., 82 Pa. Cmwlth. 502, 506, 475 A.2d 955, 956-957 (1984). “The practical effect of the law is to insist that the licensee be governed by appearances, rather than by medical diagnosis.” Id.

The plaintiffs cite to Fandozzi for the proposition that visible intoxication can be proven in the absence of direct eye witness testimony. In Fandozzi, the decedent walked a distance of one mile from his hunting camp to the Kelly Hotel where the decedent began consuming alcoholic beverages. A bartender recalled serving him two alcoholic drinks prior to asking for him to pay a cover charge and another drink after speaking with him. The bartender did not recall what the decedent was drinking or the total number of drinks he consumed. The decedent then exited the Kelly Hotel where he was observed by three individuals either on the porch in front of the Kelly Hotel or on the adjacent road. One of those individuals was the co-owner of the Kelly Hotel, who was working the door. He said goodbye to the decedent and watched him walk across the street where he fell to the ground. The co-owner attempted to help him up and noticed that the decedent was staggering and his speech was slurred; however, the co-owner did not notice those signs of intoxication prior to the fall. The co-owner then helped the decedent back to the front porch where the decedent slept for a while. He then attempted to walk, but fell again in the middle of the street. Another individual testified that she observed the decedent when he was leaving the Kelly Hotel at some time after 9:30 p.m. He seemed to be very intoxicated and was staggering before he fell in the middle of the street. She offered to drive the decedent home in a friend’s vehicle. A teen-age boy, who was accompanying that individual, also observed the decedent stagger and fall in the street. He stated that the decedent smelled of alcohol and had slurred speech. The individual and the teenage-age boy were unable to understand the decedent when he explained where he lived due to his slurred speech and he smelled of alcohol. The decedent was unable to identify exactly where he lived, so they left him at the entrance to a campground about a mile away from the Kelly Hotel. Early the next morning, state troopers found the decedent lying on the side of the road near the entrance of the campground. The troopers noticed that he had a head injury, was bleeding and demonstrated a high degree of intoxication. He was taken to the hospital where a blood test revealed that he had a blood alcohol content of 0.214 percent. The decedent died from the injury to his head. The appellants filed suit against the Kelly Hotel among other defendants. The trial court granted summary judgment in favor of the Kelly Hotel on the issue of liability under the Dram Shop Act. It must be noted that the appellants offered an expert report stating that the decedent’s blood alcohol content at the time he left the hotel would have been .30 percent and he would have displayed visible signs of intoxication while in the Kelly Hotel.

The Fandozzi Court initially stated that it is not enough to serve a patron alcoholic beverages, for civil liability to attach, there must be evidence that the patron was served alcohol when he or she was visibly intoxicated. Fandozzi, 711 A.2d at 527 (citing Holpp v. Fez, Inc., 440 Pa. Super. 512, 515-517, 656 A.2d 147, 149 (1995)). The court also noted that the appellants have failed to produce any direct evidence that the decedent was visibly intoxicated at the time he was served alcohol, but there was sufficient circumstantial evidence to create a jury question on that issue. Id. The Fandozzi Court reasoned that the appellants presented circumstantial evidence that the decedent was visibly intoxicated, which included the decedent drank alcohol for two hours at the hotel, he was observed by three witnesses' in an extremely intoxicated condition, either on the porch of the Kelly Hotel or in close proximity to the adjacent street, he was stumbling, he fell, had slurred speech, smelled of alcohol and he could not identify the location of his hunting camp. Id. In addition, a blood alcohol test taken approximately six hours after the decedent left the hotel indicated that he had a blood alcohol content of 0.214 percent. The appellants also provided an expert report that stated the decedent’s blood alcohol content would have been .30 percent when he was at the hotel and he would have demonstrated signs of visible intoxication. The court explained that the medical testimony alone is insufficient to create an issue of material fact concerning visible intoxication. Id., 711 A.2d at 528 (citing Johnson v. Harris, 419 Pa. Super. 541, 615 A.2d 771, 776 (1992)). The expert report in Fandozzi was supported by the circumstantial evidence creating an issue of material fact, but the medical testimony by itself did not. Id. The court reasoned, “Appellants have presented evidence that [decedent] drank more than the equivalent of fourteen twelve-ounce beefs during the two hours he was at the Kelly Hotel; that immediately after he left, he was stumbling and falling to the ground, and could not identify where he lived; that he was still highly intoxicated when found by police more than four hours later; and that his blood alcohol content was 0.214 percent approximately six hours after leaving the Kelly Hotel.” Id., 711 A.2d at 529. Therefore, the Fandozzi Court determined that the trial court improperly granted summary judgment in favor of Kelly Hotel as there was an issue of material fact concerning whether the decedent was visibly intoxicated at that time he was served alcohol at the hotel. Id., 711 A.2d at 529.

The plaintiffs also cite to Couts v. Ghion, 281 Pa. Super. 135,421 A.2d 1184 (1980), which is a plurality decision of the Pennsylvania Superior Court. In that case, Dean P. Ghion (hereinafter “Ghion”) attended a business meeting hosted by a soft drink distributor, Refreshment Products, Inc., at a restaurant and motel operated by Holiday House, Inc. The attendees of the meeting, including Ghion, were furnished with alcohol. Ghion consumed eight alcoholic beverages at the meeting and ate lunch after the meeting concluded. At 5:00 p.m., Ghion went to a bar located elsewhere in the Holiday House restaurant where he drank two more alcoholic beverages. He finished the drinks at 5:15 p.m. andleftthe Holiday House, Inc. inhis automobile. Ghion was then involved in an accident at 6:00 p.m. as he was driving on Route 30 North and his vehicle crossed the double yellow line. He was traveling in the westbound lanes when he struck a Toyota pickup. The driver of that vehicle died as a result of the collision. Within minutes, a police officer arrived to investigate the scene. He observed Ghion walking with a staggering gait and he detected a strong odor of alcohol. Ghion also fumbled through his wallet and dropped some cards when he was asked to provide his driver’s license and registration. Additionally, Ghion’s speech was slurred. The appellant not only filed suit against Ghion, but against Refreshment Products, Inc. and Holiday House, Inc. for serving Ghion alcohol when he was visibly intoxicated. The trial court granted summary judgment on behalf of Refreshment Products, Inc. and a compulsory nonsuit in favor of Holiday House, Inc. As a result, the appellant appealed to the Superior Court of Pennsylvania arguing that the trial court erred in entering judgment as there were issues of material fact concerning whether Ghion was visibly intoxicated when those parties served him alcohol.

The court initially stated that Refreshment Products, Inc. could not be held liable under the Dram Shop Act as the courts have refused to impose liability upon persons who are not licensed and engaged in the sale of intoxicants. Id., 281 Pa. Super, at 140, 421 A.2d 1187 (citing Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973)). The Couts Court then focused its attention on Holiday House, Inc. The court determined that the evidence presented was sufficient for that issue to be submitted to a jury. Id., 281 Pa. Super, at 142, 421 A.2d 1188. The appellants’ evidence included testimony concerning Ghion’s substantial alcohol consumption, his erratic driving, failing to utilize the lights on his vehicle, the appearance of intoxication noted by the police officer and improperly excluded evidence of his blood alcohol content. The court stated, “Despite the lack of direct evidence bearing on Ghion’s condition when he served his last drink, we think that the jury could have reasonably concluded that he was visibly intoxicated at that time.” Id. Therefore, the Couts Court affirmed the trial court’s decision to enter summary judgment in favor of Refreshment Products, Inc. and reversed the trial court’s entry of a compulsory nonsuit concerning Holiday House, Inc. Id.

Heron’s Landing argues that this case more similarly resembles Johnson, 419 Pa. Super. 541, 615 A.2d 771. In that case, the appellants were involved in a one-vehicle automobile accident after frequenting several local drinking establishments with friends. The appellants argued that the drinking establishments violated the Dram Shop Act by serving the driver alcohol when she was visibly intoxicated. The driver picked up her passenger at approximately noon at his mother’s residence where he resided. They went to the Chestnut Street Inn where they had three 12-ounce beers. At 1:00 p.m., the appellants walked to nearby Sunbury Eagles where they consumed several 16-ounce beers. They then watched a movie before driving to the Milton Eagles, which they soon left because it was crowded. Apparently, they went to the Milton American Legion where the passenger drank beer and gambled. The driver vaguely remembers consuming beer there as well. The appellants also stopped at the Halfway House; however, the appellants were not served alcohol there. They used the bathroom and left that establishment. Soon thereafter, the appellants were involved in a one-vehicle accident. The appellants filed suit seeking damages against the drinking establishments that they visited for violations of the Dram Shop Act.

The appellees filed motions for summary judgment arguing that there was no evidence that the appellants were served alcohol while they were visibly intoxicated. The trial court granted those motions and noted that the only evidence that the appellants were visibly intoxicated came from the appellants’ expert report stating that the driver’s blood alcohol content would have been higher than .226 percent when she left the Halfway House and it would have been .07 percent when she began drinking at the Sunbury Eagles. According to that report, the driver’s blood alcohol content would have exceeded .10 percent during the time when she was drinking at the Sunbury Eagles and would have exceeded .15 percent by the time they left that establishment. The expert also opined that a person with those blood alcohol contents would have shown visible signs of intoxication, including a decreased capacity for hearing resulting in speaking louder, decreased dexterity, diminished motor skills, compromised reaction time, slurred speech and sometimes bloodshot eyes. The trial court reasoned that the expert report was based upon the effects of alcohol on the average person and not personal observations of the appellants on the day in question. The appellants filed an appeal to the Superior Court of Pennsylvania asserting that there is a genuine issue of fact as to the driver being served while she was visibly intoxicated as she was served alcoholic beverages at all of the establishments and the expert report outlines the typical signs of intoxication the average person would have displayed given the driver’s estimated blood alcohol content.

The Johnson Court agreed with the trial court’s ruling and explained that when examining whether a person is visibly intoxicated, the courts should place emphasis on what can be seen and not focus as much on blood alcohol content. Id., 419 Pa. Super, at 551, 615 A.2d at 776 (quoting Laukemann v. Com., Pennsylvania Liquor Control Bd., 82 Pa. Cmwlth. 502, 506, 475 A.2d 955, 956-957 (1984)). The court explained, “A review of the Record displays that there is nothing to indicate that [the driver] was served while visibly intoxicated at any of the drinking establishments. Quite the contrary is true. [The passenger] asserted in his deposition testimony that [the driver] was not visibly intoxicated the day of the accident.” Id. Moreover, the court determined that the expert testimony did not create a question of fact as it is merely an attempt to relate back the blood alcohol content when the appellants were at certain establishments before the accident and it indicates the visible signs of intoxication that the average person would demonstrate. Id., 419 Pa. Super, at 552, 615 A.2d at 776. However, there is no indication that the driver’s reaction to alcohol ingestion would be the same as the average person’s response. Id. Thus, the appellants have failed to produce any witness to support their position, the trial court properly granted summary judgment. Id.

The Superior Court of Pennsylvania addressed a similar case to the current matter in Conner v. Duffy, 438 Pa. Super. 277, 652 A.2d 372 (1994). In that case, the driver collided with the appellant while driving home from a Philadelphia Phillies baseball game hosted at Veteran’s Stadium in Philadelphia, Pennsylvania. The driver was arrested and charged with driving under the influence. The appellant filed suit asserting claims of negligence against the concessionaire at the Stadium and the Philadelphia Phillies for serving the driver while he was visibly intoxicated. The concessionaire and the Philadelphia Phillies moved for summary judgment, which was granted by the trial court. The appellant filed an appeal to the Superior Court of Pennsylvania. The appellant offered the deposition testimony of one of the driver’s friends who attended the baseball game. He stated that beer purchases were made at the stadium and the driver drove erratically when exiting the stadium. The arresting police officer also testified that the driver appeared to be intoxicated approximately one hour after the baseball game concluded. He exhibited slurred speech and blood shot eyes. The appellant contended that the results of the field sobriety tests, blood alcohol tests and “relation back” testimony by the appellant’s expert demonstrated that the driver would have appeared intoxicated during the time he was at the stadium.

The Conner Court emphasized that the driver’s friend testified that the driver did not appear to be intoxicated at the stadium and his erratic driving was attributed to his unfamiliarity of the roadways as he missed the turn to enter Interstate 95. Id., 438 Pa. Super, at 282, 652 A.2d at 374. The friend also stated that he was not concerned about the driver’s ability to operate the vehicle. Id. In addition, the friend could not testify to ever seeing the driver purchase beer from the concession stand or the usherette. Id., 438 Pa. Super, at 282, 652 A.2d at 375. In fact, the friend stated that the five of them who went to the game together, alternately purchased beer based upon who wanted a beer at that particular time. Id. The court explained there was no nexus between the beer purchases and the driver’s visible intoxication as the only certain testimony provided by the friend was that the driver did not appear to be intoxicated. Id. As a result, the appellant’s only proof of visible intoxication was the driver’s appearance at the time of his arrest and the relation back testimony by the appellant’s expert. Id., 438 Pa. Super, at 283, 652 A.2d at 374. The appellant contended that the evidence presented was sufficient to demonstrate that the driver was visibly intoxicated when he was served alcoholic beverages pursuant to the court’s decision in Couts. The Conner Court initially noted that Couts is a plurality opinion and is not binding on the court’s decision. Id. The court also distinguished Couts from Conner as there was a lack of erratic driving, the difference in time that elapsed between the blood alcohol testing and the accident and there was testimony from the friend that the driver consumed more beer in the vehicle after leaving the stadium. Id. Thus, the Conner Court affirmed the trial court’s decision to grant summary judgment in favor of the appellees. Id.

In the case sub judice, defendant Krivosh made arrangements to meet Mary Frances Venn at Shakespeare’s Restaurant for drinks. Prior to leaving to travel to the restaurant, defendant Krivosh drank two “gulps” of vodka for a total consumption of approximately eight ounces. He placed the bottle of vodka in his vehicle and then departed for Shakespeare’s Restaurant. Defendant Venn arrived at the restaurant first and was later joined by defendant Krivosh, who ordered a vodka and tonic for both of them. They began conversing and defendant Krivosh informed defendant Venn that he was terminating their relationship. Defendant Krivosh consumed that beverage and ordered another one. He drank half of that beverage and paid for the drinks with a $20 bill prior to leaving the restaurant. Defendant Venn left shortly thereafter and followed him into the parking lot. Defendant Krivosh and defendant Venn entered their vehicles and defendant Krivosh drove off followed by defendant Venn. After traveling a short distance, they arrived at a traffic light and defendant Krivosh sped away when the light turned green. Defendant Venn lost sight of his vehicle at that time. As defendant Krivosh was driving outside of defendant Venn’s view, he crossed into the other lane of the roadway and struck the plaintiffs’ vehicle, which caused Elvin W. Jenkins to suffer severe injuries. The distance from the traffic light to the site of the accident was approximately a quarter of a mile. Defendant Venn approached the site of the accident and she parked her vehicle behind defendant Krivosh’s truck. Defendant Krivosh exited his vehicle and approached the other vehicle where he realized that Mr. Jenkins was trapped inside. Defendant Krivosh returned to his vehicle and attempted to dispose of the vodka bottle over a nearby hillside. Patrolman Disher then arrived at that scene and observed that defendant Krivosh had glassy, bloodshot eyes, he was swaying in a circular motion and he emanated an odor of alcohol. Defendant Krivosh was attempting to keep his mouth closed in an effort to hide the odor of alcohol. Officer Disher then administered three field sobriety tests, which defendant Krivosh failed. One of the field sobriety tests was a portable breath test, which indicated that defendant Krivosh’s blood alcohol content was .09 percent. The plaintiffs provided an expert report from Karl E. Williams, MD, MPH, who utilized methods of relation back extrapolation to determine that defendant Krivosh would have had a blood alcohol content of 0.172 percent when he was at Shakespeare’s Restaurant or the equivalent of eight or nine alcoholic beverages. He opined that is a level of intoxication at which any casual observer would notice that defendant Krivosh was visibly intoxicated.

This case is similar to Conner as there is no direct testimony that defendant Krivosh was visibly intoxicated while being served alcoholic beverages at Shakespeare’s Restaurant. Defendant Venn testified in her deposition that defendant Krivosh did not appear to be intoxicated while at the restaurant. The two were able to engage in an in depth conversation with no signs of intoxication. Moreover, the plaintiffs did not provide any testimony from any restaurant employees or other patrons of Shakespeare’s Restaurant that defendant Krivosh appeared to be visibly intoxicated, such as having difficulty walking, slurring his words or having a significant number of drinks. Defendant Krivosh and defendant Venn testified that he had only one and a half vodka tonics at the restaurant before paying the bill and departing, which is substantiated by his testimony that he paid with $20. Only two drinks were served to the defendant at Shakespeare’s Restaurant and there is no evidence that he was visibly intoxicated while served or at anytime inside Shakespeare’s Restaurant. In addition, there is no evidence of erratic driving during the ten-minute drive prior to defendant Krivosh’s failure to navigate the bend causing the collision with the plaintiff’s vehicle. The record is also devoid of any reference that defendant Krivosh was unable to control his vehicle other than his testimony that it seemed like his truck steering was not responding when he attempted to navigate the curve in the road. The plaintiffs rely entirely upon the testimony of officer Disher and the affidavit of Michael Paul Allen, who both observed defendant Krivosh after the accident. They both stated that defendant Krivosh appeared to be intoxicated. They both asserted that defendant Krivosh was visibly intoxicated when they observed him. It is important to note that when defendant Krivosh was observed by Mr. Allen he had just been in a high speed collision with another vehicle, yet he still had the wherewithal to throw the vodka bottle, which was half empty, over the hill. The plaintiffs have provided the expert report of Dr. Williams to demonstrate that defendant Krivosh’s blood alcohol content would have been 0.172 percent when he was at Shakespeare’s Restaurant and it would have been apparent to a casual observer that he was visibly intoxicated. According to Conner, that “relation back” testimony is insufficient to create a question of fact to permit the issue of visible intoxication to be decided by a jury. The court will also note that the terminology utilized by 47 P.S. § 4-493(1) indicates that an establishment may not serve alcohol to any patron that is visibly intoxicated at the time the alcoholic beverage is served, (emphasis added). In this case, there is no evidence or testimony that defendant Krivosh appeared visibly intoxicated while he was at Shakespeare’s Restaurant. In fact, defendant Venn testified to the opposite that defendant Krivosh did not appear to be intoxicated and she could not smell alcohol on his breath. The plaintiffs have not presented any evidence demonstrating that defendant Krivosh was slurring his words at Shakespeare’s Restaurant, he was unable to walk properly or he was driving erratically prior to the accident. To uphold plaintiff’s theory would unnecessarily impose liability upon any establishment serving alcoholic beverages when there has been testimony by a police officer that a driver is under the influence despite a complete void of direct evidence that the driver was intoxicated when he was served alcohol at the establishment. Therefore, the court finds that the plaintiffs have failed to present evidence creating a material fact regarding whether defendant Krivosh was visibly intoxicated when he was served alcohol at Shakespeare’s Restaurant.

For the reasons set forth in this opinion, defendant Heron’s Landing’s motion for summary judgment is granted.

ORDER OF COURT

Now this 16th day of July, 2014, this case being before the court on May 27,2014, for oral argument on the motion for summary judgment filed by the defendant Heron’s Landing, LLC t/d/b/a Olde Stonewall Golf Club, with both parties appearing through counsel, the plaintiffs Elvin W. Jenkins, II and Mary Anna Jenkins, represented through counsel, Phillip L. Clark, Jr., Esquire and the defendant Heron’s Landing, LLC t/d/b/a Olde Stonewall Golf Club, represented through counsel, Phillip J. Sbrolla, Esquire and after a consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the motion for summary judgment filed by the defendant Heron’s Landing, LLC t/d/b/a Olde Stonewall Golf Club is hereby granted.

2. Count VI (sic) of the amended complaint Elvin W. Jenkins, IIvs. Heron’s Landing, LLC t/d/b/a Olde Stonewall Golf Club and count VI of the amended complaint Mary Anna Jenkins vs. Heron’s Landing, LLC t/d/b/a Olde Stonewall Golf Club are hereby dismissed with prejudice.

3. The prothonotary is directed to serve a copy of this order of court upon counsel of record.

      . It must be noted that the vehicle being driven by defendant Krivosh was registered in defendant Venn’s name.

      . The Pennsylvania Supreme Court has stated that plurality opinions do not have precedential value. Commonwealth v. Baldwin, 604 Pa. 34, 42, 985 A.2d 830, 835 (2009) (citing Kelley v. State Employees’ Ret. Bd., 593 Pa. 487,932 A.2d 61,67-68 (2007)).

      . Officer Disher testified that the drive from Shakespeare’s Restaurant to the site of the accident would last approximately ten minutes depending on the traffic lights.


source: Caselaw Access Project

author: HODGE, J.,

license: Public Domain

text:
    In the Interest of S.S.

      C.P. of Lawrence County,
    No. 20 of 2014, Dep.

      Carolyn J. Flannery, for Lawrence County CYS.

      Lawrence J. Puntureri, for natural mother.

      Heather M. Papp-Sicignano, for natural father.

      Deborah A. Shaw, guardian ad litem.
    July 22, 2014
   HODGE, J.,

This opinion is issued pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellant Procedure in support of the order of court dated May 21, 2014 adjudicating the subject minor child, hereinafter, “S.S.”), dependent pursuant to 42 Pa.C.S. §6302(1). The natural father, Shawn Snyder (hereinafter, “father”) appeals from the May 21, 2014 order and contends that this court committed the following errors:

1. The trial court erred in finding the minor child to be dependent pursuant to 42 Pa.C.S.A. §6302(1);
2. The trial court erred in evaluating the weight and sufficiency of the evidence offered by the petitioner, Children and Youth Services of Lawrence County (hereinafter, “CYS”);
3. The trial court erred in failing to place the minor child with the paternal grandmother; and
4. The trial court’s determinations violate the father’s constitutional right to rear his child without undue government interference.

Before addressing each of father’s issues raised on appeal, the court will provide the following background of this case:

Prior to a dependency petition being filed, the minor child, S.S., bom October 23,. 2003, lived with his natural father, Shawn Snyder (hereinafter, “father”) paternal grandmother at 2305 Gamer Road, Edinburg, Lawrence County, Pennsylvania 16116. Natural mother, Bubnen Pratuntit (hereinafter, “mother”), presently lives in Switzerland. Her involvement with the minor child is unclear, but the transcripts from the 72-hour hearing inferred that minimal contact is maintained between mother and S.S.

On April 4, 2014, S.S. told his school teacher that his father, Shawn Snyder (hereinafter, “father”), had “picked him up and threw him” earlier that morning. S.S. relayed to his teacher that, after throwing the child, father told S.S., “I am this close to punching you in the face and killing everyone.” S.S. also told his school psychologist about the incident, but included the fact that he “knocked some things over and dad threw a Coke bottle at him, grabbed him by the chest and threw him.” Given the minor child’s allegations, the school teacher and psychologist involved initiated a child-line with Lawrence County Children and Youth Services, (hereinafter, “CYS” or the “Agency”). Shortly thereafter, Tynesha Lee, a caseworker from the Agency met with S.S., and S.S. told her that he was fearful to return to his home, and he did not feel safe at home because the father might hit him again.

Based upon the information gathered during her investigation with the minor child, the school teacher and the school psychologist, Ms. Lee appeared before this court on April 4, 2014 requesting an ex parte hearing and requested the court to grant CYS custody of the minor child pending a 72-hour hearing. The court determined that Ms. Lee’s testimony warranted a finding that S.S. was without proper parental care or control necessary for his physical, mental and emotional health. A 72-hour hearing was held before the Juvenile Master, Susan S. Papa, Esquire, on April 7, 2014. Following said hearing, the Juvenile Master determined that CYS met their burden of proving placement was warranted and adjudicated the minor child dependent. Further hearings were then held before the Juvenile Master on April 28, 2014 and May 16, 2014, following which the minor child remained adjudicated dependent and was placed in foster care. On May 21, 2014, this court entered an order of adjudication and disposition, which incorporated the recommendations of the Juvenile Court Master. From this order, father appeals.

The standard of review utilized by the appellate court in cases is broad. However, the scope of review is limited in a fundamental manner by our inability to nullify the fact-finding of the lower court. A trial court is afforded great weight to its own findings because it is in the position to observe and rule upon the credibility of the witnesses and the parties who appear before it. Therefore, a trial court’s findings must be affirmed if they are supported by competent evidence. In re R.R., 86 A.2d 1316, 1317_(Pa. Super. 1996) (internal citations omitted).

Section 6302 of the Pennsylvania Juvenile Act defines a dependent child in various capacities. Pursuant to 42 Pa.C.S.A. §6302(1), a dependent child is one who:

is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals. A determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk, including evidence of the parent’s, guardian’s or other custodian’s use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk[.]

It is well settled that dependency proceedings “concern themselves with the correction of situations in which children are lacking proper parental care or control.” In Interest of J.M., 652 A.2d 877, 880 (Pa. Super. 1995) (citations omitted). “Whether a child is lacking proper parental care and control encompasses two discrete questions: 1) Is the subject child at this moment without proper parental care or control; 2) If so, is such care and control immediately available?” In Re Jeffrey S., 628 A.2d 439, 440 (Pa. Super. 1993) (citations omitted). In any dependency proceeding, the petitioner carries the burden of proof and must show that the juvenile is without proper parental care, and that such care is not available immediately. In the Interest of J.M., 652 A.2d at 880. “Both of these determinations must be supported by clear and convincing evidence.” In the Interest of JOV, 686 A.2d 421, 423 (Pa. Super. 1996) (citation omitted). Such a conclusion requires that testimony be “so clear, direct, weighty, and convincing as to enable the trier of facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” In Re S.M., 614 A.2d 312, 313 (Pa. Super. 1992) (citation omitted).

A finding' of abuse may support an adjudication of dependency. In the Matter of Read, 693 A.2d 607 (Pa. Super. 1997); In Interest of J.M., supra; In the Interest of J.R.W., 631 A.2d 1019 (Pa. Super. 1993). When the court’s adjudication of dependency is premised upon physical abuse, its finding of abuse must be supported by clear and convincing evidence. In the Matter of Read, supra; In Interest of J.R.W., supra. In matters where the abuse or neglect is of such a nature that it would not occur except by reason of the acts or omissions of the parent or other person responsible for the welfare of the child, evidence of the same shall be prima facie evidence of child abuse by the parent or other person responsible for the welfare of the child. 23 Pa.C.S.A. §6381(d).

This lessened standard of establishing abuse by the caretakers, coupled with the clear and convincing evidence necessary to find dependency, has been imposed by the legislature as the standard which the Juvenile Court must apply in deciding abuse cases. Prima facie evidence is not the standard that establishes the child has been abused, which must be established by clear and convincing evidence; it is the standard by which the court determines whom the abuser would be in a given case. There is no conflict, constitutional or otherwise, with the clear and convincing evidence standard imposed by the act to establish" child abuse. The legislature has determined that the likelihood clearly established abuse has occurred, other than at the hands of the custodian, is so small that prima facie evidence the custodian has caused the injury, either by acts or omissions, is all that is required. [The court] find[s] no defect in this reasoning. Such a standard provides maximum protection for the child victim or other children in the community who might be subject to similar abuse if the. alleged abuser was not identified and permitted free access to the victim or other vulnerable children. It is not equivalent to a finding of guilt in a criminal proceeding which could result in deprivation of freedom'. Thus the legislature has balanced the needs of society and children for protection against the abuser’s possible patterned behavior and his/her right to freedom unless found guilty beyond a reasonable doubt.

In Interest of J.R.W., 631 A.2d at 606.

After reviewing the testimony presented at the 72-hour hearing held on April 7, 2014, the court finds that the Juvenile Master’s determination regarding adjudication was appropriate. The agency caseworker testified that S.S. consistently informed his teacher, psychologist and the agency caseworker, Ms. Lee, that father picked him up and threw him against a table. S.S. stated that, because of his father’s actions, he did not feel safe returning home. (N.T. April 7, 2014, pp. 9-15). The Master’s findings as to credibility and viability of facts are given considerable deference by this court, and based upon the testimony contained in transcript from the April 7,2014 proceedings, the Master’s findings of abuse were clearly established, and leave this court without hesitation as to the veracity of the facts presented.

The court acknowledges that parents are not prohibited from using corporal punishment to discipline their children. City of Philadelphia, Office of Children, Youth and Family Services v. Department of Public Welfare, 767 A.2d 10, 12 (Pa. Cmmw. 2001)(citing Boland v. Leska, 454 A.2d 75 (Pa. Super. 1982)). “However, corporal punishment may not be used if it is designed or known to create a substantial risk of death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation.” Id. The Child Protective Services law contains the current statutory guidelines, which are contained in the Child Protective Services Law, set forth many of the same prohibitions against excessive punishment as does the Superior Court of Pennsylvania in Boland. See 23 Pa.C.S. §§ 6301-6385. Specifically, in Section 6303(b) (8) of the law, the term “child abuse” includes: “Any recent act or failure to act by a perpetrator which causes non-accidental serious physical injury to a child under 18 years of age.” 23 Pa.C.S. § 6303(b)(i). Furthermore, Section 6303(a) defines the term “serious physical injury” as any injury that:

(1) causes a child severe pain; or
(2) significantly impairs a child’s physical functioning, either temporarily or permanently.

23 Pa.C.S. § 6303 (a).

Father’s own testimony indicates that he does not utilize corporal punishment when disciplining S.S. Rather, father indicated that the child often needs to be addressed in a stem and repetitive manner to draw his attention. Based on father’s testimony, the court believes that something happened in father’s residence on April 4, 2014 causing the minor child to exhibit some impairment to his social and mental health. This case begs for counseling and immediate implementation of family service planning so that father and S.S. can develop appropriate skills so that they may each communicate their own expectations and needs. The Juvenile Master’s recommendations made on the record are consistent with the court in this regard.

The court will address father’s next contention that the court erred in failing to place the minor child in a kinship care setting, specifically, with the paternal grandmother. The statute outlining alternative family placement, otherwise known as the Kinship Care Program, provides, in pertinent part:

(b) Placement of children. — If a child has been removed from the child’s home under a voluntary placement agreement or is in the legal custody of the county agency, the county agency shall give first consideration to placement with relatives. The county agency shall document that an attempt was made to place the child with a relative. If the child is not placed with a relative, the agency shall document the reason why such placement was not possible.

62 P.S. § 1303(b).

Kinship care is a subset of foster care where the care provider already has a close relationship to the child. In kinship care, legal custody of the child remains with the agency, and the agency places the minor child with an appropriate caregiver who is typically a family member. In re J.P., 998 A.2d 984, 987, n. 3 (Pa. Super. 2010). The court may place children with a foster family, although there might be willing relatives, where foster care is in the best interests of the children or aggravated circumstances exist. In re R.P., 957 A.2d 1205 (Pa. Super. 2008) (holding court properly declined proposed kinship care arrangement due to aggravated circumstances, where mother knew father was abusing child but failed to protect child from further abuse; children’s grandfather was widower with pacemaker who lived close to father, and children’s uncle had no experience in raising children; placement of children with relatives would put children at further risk of abuse); In re C.J.R., 782 A.2d 568 (Pa. Super. 2001) (holding court properly declined to remove children from foster home and place them with biological grandparents, where removal from foster home could stunt positive gains in belated development due to “failure to thrive” diagnosis, and grandparents came from dysfunctional family environments). The goal of preserving the family unit cannot be elevated above all other factors when considering the best interests of children, but must be weighed in conjunction with other factors. In re Davis, 465 A.2d 614, 621 (Pa. 1983).

In the instant case, the record establishes that the paternal grandmother, Mary Ann Snyder (hereinafter, “grandmother”), was considered for kinship care placement. A CYS caseworker conducted a home evaluation of grandmother’s residence on April 15, 2014. The case worker found grandmother’s home to be an appropriate residence for S.S., and the caseworker went over the paperwork necessary for S.S. to be placed with grandmother pending a final resolution of these proceeding. However, the caseworker discovered that father intended to continue to live on the property where grandmother’s residence was located, but in a different trailer located in the backyard. Father was informed that these accommodations would not be appropriate and fathér obtained a residence at a local motel. On April 25, 2014, an Agency caseworker went to the motel where father indicated he was residing, and the caseworker obtained a receipt stating that father had paid a month of rent there. However, it did not appear that anyone was actually living in the motel room. When the caseworker asked father if he was actually staying at the motel, father replied “no.”

In light of the above facts, in combination with CYS’ hesitation regarding whether grandmother would comply with their requirements that father not be permitted to see S.S. outside of the agency’s supervision, the court agrees with the Juvenile Master that grandmother is not an appropriate kinship care provider at this time.

The allegations involved are very serious, and grandmother admitted to being present in the residence on April 4, 2014 when the incident between father and S.S. occurred. The agency has consistently expressed its end goal of reunification in this case, but the court understands that the agency cannot effectively facilitate this goal if the agency cannot ensure that all family members involved are cooperating and implementing the standards set forth in the family service plan.

For these reasons, the court believes that the order of court issued on May 21, 2014 should be affirmed in its entirety.

ORDER OF COURT

And now, this 22nd day of July, 2014, with the court having received a concise statement of errors complained of on appeal, filed on behalf of the natural father, Shawn Snyder, in the above captioned case, and with the court issuing the attached opinion, pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellant Procedure in support of the order of court dated May 21,2014, the court hereby directs the prothonotary shall assemble the record and transmit the same to the prothonotary of the Superior Court as required by the applicable rules of appellate procedure.

The prothonotary shall properly serve notice of this order of court and opinion upon counsel of record for the parties and upon any unrepresented party at their last known address as contained in the court’s file.


author: NANOVIC, P.J.,

text:
    Stang v. Smith

      C.P. of Carbon County,
    No. 09-3311

      Gary Solomon, for plaintiff.

      John R. Hill, for defendant Neil Lesitsky, M.D.

      Candy Barr Heimbach, for defendant Rajinish Chaudhry, M.D.
    July 28, 2014

   NANOVIC, P.J.,

The basic facts at issue in these proceedings are not uncommon. The negligence of multiple persons is alleged to have combined and caused injury to another — here death. Decedent’s estate files suit against all defendants. None of the defendants files a cross-claim against any other defendant. Prior to trial plaintiff settles with some, but not all of the defendants.

Under these circumstances, whether the names of the settling defendants should be included on the jury verdict slip in order that the liability of each defendant and the degree of their comparative fault can be assessed and determined by the jury, and whether an expert witness called by plaintiff to testify as to the causal negligence of a non-settling defendant, but who opined in response to pretrial discovery that the causal negligence of both settling and non-settling defendants was responsible for plaintiff’s injuries, can be cross-examined at trial on the witness’s earlier opinions critical of the settling defendants, are issues requiring the court’s attention. We address these issues below.

FACTUAL AND PROCEDURAL BACKGROUND

On November 21, 2007, John Stang (“decedent”) was found dead lying on the floor of the Intensive Care Unit (“ICU”) of the Gnaden Huetten Memorial Hospital (“hospital”). The cause of death was DVT/PE, pulmonary embolism caused by deep vein thrombosis from the lower extremities. In layman’s terms, he died of suffocation from clots in his pulmonary arteries which prevented the exchange of oxygen between his blood and lungs.

What caused decedent’s death is not in dispute; why, is. This dispute begins with the events of November 15,2007. On that date, during the early morning hours, decedent awoke, dizzy and disoriented, and began to vomit. His wife, Lorrie Stang, contacted Dr. Neil Lesitsky, a primary care physician, who saw decedent for the first time on November 2,2007, for a physical examination. The results of this examination were characteristic of those expected for a fifty-six-year-old white male who was overweight and out of shape: hypertension, hyperlipidemia (high blood fats), hyperglycemia (high blood sugar) and diabetes. All are risk factors for stroke. Medication was prescribed.

When Mrs. Stang spoke with Dr. Lesitsky onNovember 15,2007, she described decedent’s symptoms. Dr. Lesitsky made a preliminary diagnosis of benign positional vertigo and recommended that decedent lie down and get rest. Dr. Lesitsky also advised that if decedent’s condition continued or worsened he should be taken to the Hospital for further evaluation. This conversation occurred at approximately 2:00 A.M.

Later that morning, between 6:00 and 6:30 A.M., Mrs. Stang left for work. She was employed as a pilot driver — an escort for oversized over-the-road motor vehicles — and was scheduled to be out of state. Expecting to be away most of the day, Mrs. Stang arranged for her sixteen-year-old son, Edward Curtis, a sophomore in high school, to stay at home and watch decedent. Edward was instructed that if decedent’s condition worsened to immediately call 911.

While she was away Mrs. Stang periodically checked with her son as to decedent’s condition. No change was noted. When Mrs. Stang returned home at 5:30 P.M., she immediately noticed that decedent’s condition had worsened — he was paler than when she left — and took him to the hospital.

Decedent arrived at the hospital at 6:08 P.M. and was examined by Dr. Frank Penater, an emergency room physician, at 6:15 P.M. Dr. Penater found decedent to be dehydrated and suspected he had the flu. As a precautionary measure, decedent was admitted to the hospital by Dr. Deborah Smith, an internist, for continued observation.

Dr. Smith was decedent’s attending physician upon his admission to the hospital. During her initial assessment of decedent at 8:16 P.M., Dr. Smith detected signs of nystagmus and disconjugate gaze, and decedent reported experiencing double vision. Dr. Smith ordered a brain CT scan. The results of this exam revealed that decedent had suffered an acute ischemic stroke in the posterior inferior cerebellar artery, more commonly referred to as a PICA stroke. At this point, decedent was transferred to the hospital’s ICU upon Dr. Smith’s order. Also on this date, November 15, 2007, at 10:45 P.M., Dr. Smith requested a neurological consult from Dr. Rajinish Chaudhry, the on-staff neurologist for the hospital.

Between his admission on November 15,2007, and his death on November 21,2007, decedent was under the care of three separate attending physicians: Dr. Smith from November 15, 2007 to November 17, 2007; Dr. Joseph McGinley from November 17, 2007 to November 19, 2007; and Dr. Patrick Hanley, from November 19,2007 to November 21,2007. During this time, decedent’s attending physicians neither ordered nor provided prophylactic preventive care against DVT and PE (e.g., anticoagulation therapy such as low dose Heparin) to decedent.

Decedent was examined by Dr. Chaudhry on November 19, 2007, at 7:30 P.M., four days after the neurological consult was requested by Dr. Smith and two days before decedent’s death. Dr. Chaudhry ordered aspirin to prevent clot formation. He also recommended transfer to a tertiary care hospital to rule out vertebral artery dissection. As noted above, decedent died on November 21, 2007.

Decedent’s wife (“plaintiff”), individually and in her capacity as administratrix of decedent’s estate, commenced the instant suit by praecipe for writ of summons filed on November 2, 2009. Named as defendants were the hospital; Drs. Smith, McGinley, Hanley, Lesitsky and Chaudhry; and Neil Wesner, M.D. In her pleadings and in pretrial proceedings, including medical expert reports, plaintiff claimed that all of the defendants were negligent in their care and treatment of the decedent, that the Hospital was liable on either a respondeat superior or corporate negligence theory, and that the negligence of each caused or contributed to decedent’s death. Each of the defendants contested liability and obtained expert reports in support of their respective positions. No cross-claims were filed by any defendant against any other defendant.

Shortly before trial was scheduled to commence on December 3, 2012, plaintiff reached settlement with the hospital and decedent’s attending physicians, Drs. Smith, McGinley and Hanley (“settling doctors”). (The hospital and settling doctors are collectively referred to herein as the “settling defendants.”). As part of this settlement, plaintiff executed a pro rata joint tortfeasor release on November 27, 2012, (the “release”) in accordance with the Uniform Contribution Among Tort-Feasors Act (“UCATA”), 42 Pa.C.S.A. §§ 8321-8327. This release provided that if Drs. Lesitsky and Chaudhry (“non-settling defendants”) were found to be joint tortfeasors with the settling defendants, the damages the non-settling defendants would be required to pay would be reduced in proportion to the extent fault was attributed to the settling defendants.

After settlement was reached, plaintiff moved to discontinue the action against the settling defendants, to preclude evidence that plaintiff had sued the settling defendants, and to bar the non-settling defendants from cross-examining her medical experts at trial about opinions they had previously rendered against the settling defendants. These motions were denied.

Following a two-week trial which began on September 30, 2013, the jury returned a verdict in favor of all defendants (excluding the hospital, for whom a compulsory nonsuit was granted), finding none were negligent. Before us is plaintiff’s motion for post-trial relief seeking a new trial.

DISCUSSION

1. Denial of Plaintiff’s Motion to Discontinue Her Claims Against the Settling Defendants and to have the Settling Defendants Dismissed as Parties

Plaintiff claims we erred by denying her motion to discontinue her suit against the hospital and Drs. Smith, Hanley and McGinley, as well as placing the settling doctors’ names on the jury verdict slip in order that the jury could determine the comparative liability of the settling doctors vis-a-vis the non-settling defendants. We disagree.

Section 8326 of the UCATA, the provision which controls set-off, provides:

A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but reduces the claim against the other tort-feasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced if greater than the consideration paid.

42 Pa.C.S.A. § 8326. Here, the release executed by plaintiff and given to the settling defendants stated in pertinent part:

It is understood that I, Lorrie Stang...am not hereby releasing any claims or demands that I have against Neil Lesitsky, M.D. and Rajinish Chaudhry, M.D. It is further understood and agreed, however, that if it should be determined that Neil Lesitsky, M.D. and Rajinish Chaudhry, M.D. are jointly or severally liable in tort to the plaintiffs with any person or entity herein released, the claim against and damages recoverable from Neil Lesitsky, M.D. and Rajinish Chaudhry, M.D. shall be reduced to the extent of the pro-rata share of legal responsibility or legal liability for which the parties herein released are found to be liable for as a consequence of the aforesaid medical care or treatment. It is intended that this Release shall comply with and be interpreted in accordance with the Uniform Contribution Among Joint Tortfeasor Act as enacted and amended in Pennsylvania.

The effect of this provision was to allow the non-settling defendants to reduce the amount of any monies jointly owed by them and the settling defendants to the plaintiff in an amount equal to the settling defendants’ apportioned share of the verdict. Baker v. ACandS, 755 A.2d 664, 668 (Pa. 2000).

In this case, plaintiff alleged and supported with expert reports claims that the defendants failed to properly evaluate and treat decedent’s stroke, and further failed to take proper steps to prevent or, at a minimum, reduce the risk of the deep vein thrombosis/pulmonary embolism that ultimately caused decedent’s death. The claims as alleged in plaintiff’s amended complaint and supported by her expert reports set forth claims of liability in tort against the defendants for the damages claimed by plaintiff, making them, under plaintiff’s pleadings and expert reports, joint tortfeasors as defined in the UCATA. See 42 Pa.C.S. § 8322.

Under settled Pennsylvania law, the non-settling defendants were entitled to have the settling defendants remain as parties to this action in order to establish their status as joint tortfeasors and, if found to be joint tortfeasors, to have the jury apportion or allocate liability among them in order that the amount of damages the non-settling defendants might be liable to pay could be determined. Thus, the inclusion of the settling defendants as parties at trial was necessary for the jury to evaluate the respective fault of all tortfeasors alleged to have been negligent and responsible for decedent’s death and, if applicable, apportion liability to the settling defendants. See Baker, 755 A.2d at 669 (noting that in negligence actions liability is allocated among joint tortfeasors according to percentages of comparative fault, citing 42 Pa.C.S.A. § 7102). Only by permitting the jury to consider the conduct of all defendants for whom a prima facie case was proven could comparative fault be fairly and intelligently apportioned. Inclusion of the settling defendants for these purposes is implicit in the UCATA and was contemplated by the language of the release quoted above.

In Davis v. Miller, 123 A.2d 422 (Pa. 1956), the Pennsylvania Supreme Court held that a defendant had the right to keep a settling additional defendant at trial for purposes of apportionment under the then current version of UCATA. In Davis, the plaintiff, Davis, sued Miller, the driver of the car which struck the vehicle in which Davis was riding; Miller in turn named as an additional defendant Richardson, the driver of the car in which Davis was a passenger. Davis subsequently entered into a joint tortfeasor release with Richardson, pursuant to which the trial court discharged her from the case. The Supreme Court reversed based upon comparable language of the UCATA, stating:

It is therefore clear that an important factor in the determination of the amount of damages that Miller may be required to pay to plaintiffs is whether or not Mary Richardson would also have been liable to them had they not released her-in other words, whether she was a joint tortfeasor with Miller. If such she was, then, under the Act and the terms of the releases which plaintiffs gave her, they can recover from Miller only his pro rata share, in this case half, of the amount to which they otherwise would have been entitled; if, on the other hand, she was not a joint tortfeasor, the releases given her by plaintiffs would not inure to Miller’s benefit....
Therefore, although Miller cannot recover contribution from the additional defendant, he does have an extremely valuable right in retaining her in the case, because, if the jury should find her to be a joint tortfeasor, his liability to plaintiffs would be cut in half Her continuance in the case is therefore necessary, even though no recovery can be had against her either by plaintiffs or by defendant, in order to determine the amount of damages that defendant may be obliged to pay plaintiffs in the light of the situation created by their releases of the additional defendant’s liability.

Id. at 424 (emphasis added)(citations omitted). See also Slaughter v. Pennsylvania X-Ray Corp., 638 F.2d 639, 643-644 (3d Cir. 1981) (“Pennsylvania cases hold that even though he has settled with the plaintiff and obtained a pro rata release, a defendant must nevertheless participate in the trial so that the jury may determine the issue of joint or sole liability.”) (citing Davis v. Miller, 123 A.2d 422 (Pa. 1956)).

The right to retain the settling defendants as parties to the litigation is not dependent upon whether cross-claims have been filed by the non-settling defendants against them. On this issue, the court in National Liberty Life Ins. Co. v. Kling Partnership, 504 A.2d 1273 (Pa. Super. 1986) stated that “[c]ross-claims for contribution are [ ] unnecessary in order to retain the settling defendants as parties to the litigation for the sole purpose of determining the extent, if any, of [a non-settling defendant’s] right, pursuant to the joint tortfeasor release, to a reduction in any verdict rendered against it after trial...” Id. at 1277-78. See also Hyrcza v. West Penn Allegheny Health System, Inc., 978 A.2d 961 (Pa. Super. 2009) (discussing, in a case where no defendant filed a cross-claim against any other defendant, the right of a non-settling defendant to have a settling defendant included on the verdict slip), appeal denied, 987 A.2d 161 (Pa. 2009); Herbert v. Parkview Hospital, 854 A.2d 1285 (Pa. Super. 2004) (affirming the trial court’s inclusion of the settling defendants on the verdict slip, thus allowing the jury to apportion liability, where the plaintiff and settling defendants entered a joint tortfeasor release which provided, inter alia, that in the event the non-settling defendant was determined to be jointly or severally liable with a settling defendant any damages recoverable against the non-settling defendant would be reduced by the pro rata share of legal responsibility or legal liability for which the settling defendants were found to be liable; no cross-claim was made by the non-settling defendant against the settling defendants), appeal denied, 872 A.2d 173 (Pa. 2005). Cf. 42 Pa.C.S.A. § 7102 (b.2) (apportionment of responsibility among certain nonparties and effect). We proceed next to examine whether the evidence was sufficient to establish the elements of a prima facie case of medical malpractice against the Settling Doctors.

2. Existence of Prima Facie Case Against Settling Doctors

Although a non-settling defendant has a right to require a settling defendant to remain as a party in the case during trial, there is no absolute right to have the settling defendant on the verdict slip. Hyrcza, 978 A.2d at 968. For a settling defendant to be included on the verdict slip, the evidence, when read in the light most favorable to the non-settling defendant, must establish a prima facie case of negligence against the settling defendant. Id. at 969. This standard was met as to the settling doctors.

Plaintiff’s expert, Dr. Mark Graham, board certified in internal medicine, testified unequivocally that the settling doctors were negligent in their care of decedent and, further, that this negligence increased the risk of harm, including death, to decedent. (N.T. 10/2/13, pp. 176-178, 180-183, 186-191). As to Dr. Smith, Dr. Graham testified that she deviated from the standard of care in failing to order aspirin and other anti-coagulation therapy for decedent (N.T. 10/2/13, pp. 180, 183) which increased the risk for decedent’s stroke progression and DVT or PE (N.T. 10/2/13, pp. 182-183), and that Dr. Smith’s negligence in failing to provide DVT prophylaxis deprived decedent of his “best chance” to prevent DVT. (N.T. 10/2/13, p. 186). As to Drs. McGinley and Hanley, Dr. Graham testified that they deviated from the standard of care by failing to order DVT prophylaxis, low-dose Heparin, and compression boots (N.T. 10/2/13, p. 188), thereby depriving decedent of his best chance to prevent DVT and/or PE and substantially increasing his risk of death. (N.T. 10/2/13, p. 189).

Dr. Graham further characterized the judgment of Drs. McGinley and Hanley that anticoagulation therapy was contraindicated due to decedent’s hypertension as “wrong” and “without merit.” (N.T. 10/2/13, pp. 189-90). In Dr. Graham’s view, there was “no question” that Drs. McGinley and Hanley “deviated” in their care of decedent. (N.T. 10/2/13, p. 191).

Dr. David Rosenbaum, a board-certified neurologist employed by plaintiff, testified that Dr. Chaudhry deviated from the standard of care for a neurologist by not seeing the decedent within twenty-four hours of the requested consult; that a neurologist should be aware that DVT prophylaxis is required by the standard of care for a stroke patient; that a neurologist who fails to prescribe aspirin and DVT prophylaxis for a stroke victim, if not prescribed by others, deviates from the standard of care; and that the failure to provide any DVT prophylaxis to decedent while he was in the hospital and the failure to provide aspirin or to transfer decedent to a stroke center at an earlier point in time, all caused or contributed to decedent’s death. In addition, Dr. Rosenbaum testified that Drs. Smith, McGinley and Hanley were each aware of the increased risk of DVT and PE due to stroke and their failure to provide or order any anticoagulation therapy caused or contributed to decedent’s death.

As the foregoing shows, during plaintiff’s case-in-chief the evidence presented clearly allowed the jury to conclude that the settling doctors deviated from the applicable standard of care and that each of these deviations caused or contributed to decedent’s death. Under Herbert, this was sufficient to include the settling doctors on the verdict slip. Moreover, to the extent plaintiff’s experts’ attribution of negligence to the non-settling defendants was predicated on facts and conduct equally applicable to the settling doctors, even absent any explicit attribution of fault to the settling doctors, the jury was entitled to take such information into account in assessing liability on the settling doctors. Here, as in Herbert, the plaintiff’s expert testimony offered as to the non-settling defendants’ liability “cast an equally damning light on the performance of every physician who had a hand in treating decedent.” Herbert, 854 A.2d at 1290.

3. Scope of Cross-examination of Plaintiff’s Expert Witnesses

Prior to trial, plaintiff’s medical experts opined that not only the non-settling defendants, but also the settling defendants, were negligent and responsible for decedent’s death. In particular, in Dr. Graham’s expert report he criticized the care provided by both the non-settling and settling defendants, opining that such care deviated from the applicable standard of care, and concluding that this deviation caused or contributed to decedent’s death. Dr. Rosenbaum, who was critical of Dr. Chaudhry’s neurological care of the decedent, also opined that the delay in getting decedent to the hospital which resulted from Dr. Lesitsky’s failure to advise Mrs. Stang to take her husband to the hospital immediately for stroke evaluation both increased the risk of harm and caused or contributed to the decedent’s death. Absent settlement of plaintiff’s claims against the settling defendants, these experts were scheduled to testify on plaintiff’s behalf against the settling defendants.

Once settlement was reached, plaintiff requested that the testimony of Drs. Graham and Rosenbaum be limited to their opinions critical of the non-settling defendants only and that the non-settling defendants be barred from cross-examining plaintiff’s experts as to any opinions held by them critical of the settling defendants. By order dated September 16,2013, we refused to restrict the scope of the non-settling defendants’ cross-examination of plaintiff’s medical experts as requested by plaintiff.

In Boucher v. Pennsylvania Hospital, 831 A.2d 623 (Pa. Super. 2003), the court stated:

Generally, every circumstance relating to the direct testimony of an adverse witness or relating to anything within his or her knowledge is a proper subject for cross-examination, including any matter which might qualify or diminish the impact of direct examination. Specifically regarding medical experts, the scope of cross-examination involving a medical expert includes reports or records which have not been admitted into evidence but which tend to refute that expert’s assertion.

Id. at 629 (citations and quotation marks omitted), appeal denied, 847 A.2d 1276 (Pa. 2004). See also Kemp v. Qualls, 413 A.2d 1369, 1371 (Pa. Super. 1984) (holding that “[ejvery circumstance relating to the direct testimony of an adverse witness or relating to anything within his or her knowledge was a proper subject for cross-examination, including any matter which might qualify or diminish the impact of direct examination”); Rose v. Hoover, 331 A.2d 878, 882 (Pa. Super. 1974) (stating that “cross-examination may embrace any matter germane to the direct examination, qualifying or destroying it, or tending to develop facts which had been improperly suppressed or ignored by the plaintiff’).

Without question, cross-examination of plaintiff’s medical experts with respect to the entirety of their opinions as expressed in their expert reports was permissible for impeachment purposes: the manner in which plaintiff sought to limit the testimony of her medical experts in her case-in-chief would otherwise have been skewed and given the false impression that these experts were of the opinion that the non-settling defendants alone were responsible for decedent’s death. Conley v. Mervis, 188 A. 350 (Pa. 1936) (explaining that the limitations of cross-examination are not intended to provide a cloak for the concealment of material facts pertaining to issues touched upon in direct examination and that any limitation on the scope of cross-examination that would allow a party to ignore or otherwise suppress facts of an adverse and harmful character would defeat one of the vital reasons for cross-examination), overruled in part on other grounds by DeWaele v. Metropolitan Life Ins. Co., 58 A.2d 34 (Pa. 1948); see also Pa.R.E. 611 (a) (1) (requiring that the trial court’s control over the mode and order of examining witnesses and presenting evidence allow for effective determination of the truth). The non-settling defendants had every right to point the finger and elicit evidence through plaintiff’s experts that the cause of decedent’s death was not the failure by Dr. Lesitsky to immediately refer decedent to the emergency room for a physical evaluation or any delay in Dr. Chaudhry’s neurological consult or treatment — the non-settling defendants’ experts being of the opinion that decedent would have ultimately fully recovered from his stroke — but the failure to provide DVT prophylaxis once decedent was admitted to the hospital, for which the non-settling doctors argued they were not responsible.

Moreover, this evidence was also admissible to prove the substantive liability of the settling defendants. First, the evidence was not hearsay. The opinions being elicited were those of the witness on the stand being cross-examined and they were clearly subject to questioning by all parties. Nor did such questioning run afoul of the rule that one party may not compel an expert for the opposing party to offer an opinion against his will. Boucher, 831 A.2d at 632. “The basis for this rule is an acknowledgment of an expert’s proprietary interest in his own opinion, and the recognition that he should not be required to relinquish it without his consent.” Id. In contrast, the opinions at issue here were independently subject to disclosure for impeachment such that any proprietary interest against disclosure claimed by plaintiff’s medical experts is illusory. Nor was there any question that these experts were competent to express the opinions on which they were cross-examined: the experts were employed by plaintiff; the opinions were prepared at plaintiff’s behest, with the intent of having them offered at trial against the settling defendants; the opinions were identical to those which plaintiff intended to present against the settling defendants had settlement not been reached; and, understandably, no objection to competency was raised by plaintiff.

CONCLUSION

The standard for granting a new trial for rulings made by the court requires not only technical error, but also demonstrated harm. Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000). For the reasons already stated, we find no error. In addition, plaintiff has failed to identify any harm.

The jury concluded that none of the individual defendants were negligent in their care of decedent. Consequently, not only did the jury find that neither non-settling defendant was responsible for any harm to plaintiff’s decedent, it simultaneously found that even if one or both non-settling defendants had been at fault, no amount would be set off against any recovery from the non-settling defendants for conduct attributable to the settling doctors. Given this verdict, we see no harm to plaintiff by our rulings which retained the settling defendants in the case and which ultimately allowed the names of the settling doctors to be placed on the verdict slip. See also Kol v. Trinh, 2005 WL 4717493 (C.P.Phila. Cty. 2005) (denying plaintiff’s motion to discontinue and dismiss a settling doctor as a party defendant in a medical malpractice suit, placing the settling defendant’s name on the verdict slip for purposes of apportioning damages, and permitting non-settling defendant’s counsel to cross-examine plaintiff’s expert witness with respect to the negligence of the settling defendant).

      . Mr. and Mrs. Stang were married on November 10, 2006. This was the third marriage for each. Mr. Curtis was decedent’s stepson.

      . By order dated April 13,2011, entered pursuant to stipulation, Dr. Wesner was dismissed as a defendant prior to trial.

      . At plaintiff’s request, a last minute continuance of the trial scheduled for December 3,2012 was granted due to a family emergency of plaintiff’s counsel. As part of counsel’s agreement to continue trial, all counsel agreed to maintain the status quo as it existed for the trial which was to commence on December 3, 2012.

      . At the close of plaintiff’s case, plaintiff moved for a compulsory nonsuit as to each of the settling defendants. We denied the motion as to the settling doctors and granted the motion as to the hospital. No party has appealed our decision to dismiss the hospital from this suit.

      . Plaintiff has preserved four determinative issues for post-trial relief. See motion for post-trial relief filed on October 21, 2013, letter dated December 6, 2013, withdrawing multiple issues from consideration, and plaintiff’s brief in support of post-trial motion filed on January 13, 2014. Of these four issues, three are discussed below. The fourth concerns our order dated October 4,2012, barring decedent’s son, Andrew Stang, from testifying at trial as a discovery sanction. The reasons for that order were set forth in a footnote opinion to the order and will not be repeated here.
      Since the October 4,2012, order, two events have occurred rendering any error of which plaintiff complains, and we see none, harmless. First, ever since decedent’s death, Andrew Stang has been withdrawn and emotionally unable to cope with his father’s death. Andrew was eighteen years old when his father died. At trial, plaintiff’s counsel placed in evidence a certification signed by Andrew (plaintiff’s exhibit no. 80) which states, inter alia, that he “find[s] it extraordinarily difficult to talk about his father and the time surrounding his death” and that he does “not have the will or emotional fortitude to sit in the court and relive the nightmare of [his] father’s death.” Andrew Stang certification, paragraphs 8 and 10. This inability of Andrew Stang to appear in court or testify is wholly independent of our order.
      Second, had Andrew Stang testified his testimony would have been relevant only to the issue of damages. As the jury found no liability against any defendant and never reached this issue, our October 4,2012, order could have had no effect on the jury verdict.

      . The act defines the term “Joint Tort-feasors” as “two or more persons jointly or severally liable in tort for the same injury to persons or property....” 42 Pa.C.S.A. § 8322. Two actors are jointly liable for an injury if their conduct “causes a single harm which cannot be apportioned.... even though [the actors] may have acted independently.” Mattia v. Sears, Roebuck & Company, 531 A.2d 789, 791 (Pa. Super. 1987) (quoting Capone v. Donovan, 480 A.2d 1249, 1251 (Pa. Super. 1984)), appeal denied, 546 A.2d 622 (Pa. 1988); Neal v. Bavarian Motors, Inc., 882 A.2d 1022, 1027 (Pa. Super. 2005). That the settling and non-settling defendants are joint tortfeasors appears as well to be acknowledged by plaintiff in her amended complaint. See plaintiff’s amended complaint, first unnumbered paragraph and paragraph 87; the ad damnum clauses of each numbered count, which demand judgment against the named defendant “jointly and severally with co-defendants”; and the ad damnum clauses of count IX (wrongful death) and count X (survival), which demand “judgment in [plaintiff’s] favor against defendants, jointly and severally.”

      . The Uniform Contribution Among Tort-feasors Act “is a comprehensive act which dictates the effect of a release as to other tortfeasors, the method for computing set-off, and under what, circumstances an action in contribution is to be allowed.” Baker v. ACandS, 755 A.2d 664, 667 (Pa. 2000).
      Where a plaintiff and a settling defendant sign a pro tanto release, then the plaintiff’s ultimate recovery against the non-settling joint tortfeasors is the total award of damages reduced by the amount of consideration paid for the release. In contrast, if the parties sign a pro rata release (which is also known as an “apportioned share setoff’ release), then the plaintiff’s ultimate recovery against the non-settling tortfeasors is the total award of damages reduced by the settling party’s allocated share of the liability.

        Id. at 666 n.l. Nevertheless, “a non-settling defendant is not entitled to a set-off in light of the settling defendant’s release unless the settling and non-settling defendants are both deemed to be joint tortfeasors. 42 Pa.C.S.A. § 8326.” Id. at 671.
      Because joint tortfeasors are jointly and severally liable, meaning that one joint tortfeasor may be compelled to satisfy the entire money judgment, the UCATA is designed with the equitable goal that a joint tortfeasor pay only his fair share of the plaintiff’s injuries for which he is responsible. To achieve this result, a “joint tortfeasor’s recourse for paying more than its proportionate share of the verdict is to sue the nonpaying joint tortfeasors in contribution. See 42 Pa.C.S.A. § 7102; 42 Pa.C.S.A. §§ 8324 (c) and 8327.” Baker, 755 A.2d at 669.
      As to the right of contribution provided for under Section 8324 (b) of the UCATA, the Mattia Court stated:

        The right of contribution may be asserted during the original proceeding via joinder of a third-party defendant. See Pa.R.Civ.P. 2252. Or it may be pursued in a separate action brought by a tortfeasor who has previously been held liable to the original plaintiff. In the latter instance, the party seeking contribution must stand in the shoes of that original plaintiff and prove that the new defendant was a joint tortfeasor and that his tortious conduct also caused the harm at issue.

        Mattia, 531 A.2d at 791-92 (citation omitted).
      Requiring the settling defendants to remain as parties to the litigation and thus allowing the jury to potentially apportion liability to the settling defendants was necessitated further by the terms of the release which would otherwise prohibit the non-settling defendants from seeking contribution. See 42 Pa.C.S.A. § 8327 (liability to make contribution as affected by release) which provides:
      A release by the injured person of one joint tortfeasor does not relieve him from liability to make contribution to another tortfeasor, unless the release is given before the right of the other tortfeasor to secure a money judgment for contribution has accrued and provides for a reduction to the extent of the pro-rata share of the released tort-feasor of the injured person’s damages recoverable against all the other tortfeasors.
      (emphasis added). Compare National Liberty Ins. Co. v. Kling Partnership, 504 A.2d 1273 (Pa. Super. 1986) where the court found that late joinder of an additional defendant was appropriate because the defendant’s right to institute a separate action for contribution against the additional defendant was destroyed by a settlement between the plaintiff and the additional defendant. See also Mattia, 531 A.2d at 792 (noting that in a claim for contribution, the statute of limitations does not begin to run until the date of entry of judgment in favor of the original plaintiff).

      . The four elements that a plaintiff must prove to support a claim of medical malpractice are:
      (1) that the medical practitioner owed a duty to the patient,
      (2) that the practitioner breached that duty.
      (3) that that breach was a proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and
      (4) that the damages suffered by the patient were a direct result of the harm.

        Herbert v. Parkview Hospital, 854 A.2d 1285, 1290 (Pa. Super. 2004). Further, where a medical expert opines that a treating physician’s failure to act deviated from the standard of care and thereby increased the risk of harm, which harm in fact occurred, the element of causation has been made out. Hamil v. Bashline, 392 A.2d 1280, 1283, 1286 (Pa. 1978).

      . This case is remarkably similar to the instant case on the key issues we address, including the jury’s verdict finding none of the defendants, settling or non-settling, negligent. The trial court’s opinion in Kol was affirmed by the Superior Court at 902 A.2d 988 (Pa. Super. 2006). Nevertheless, because this occurred in an unpublished memorandum opinion, we recognize it is of no precedential value. Reed v. Pennsylvania National Mutual Ins. Co., 493 A.2d 710, 712 (Pa. Super. 1985) (holding that Superior Court’s affirmance of a trial court opinion by unpublished memorandum opinion is of no precedential value).

      . In addition, at no time did plaintiff request a limiting instruction that the non-settling defendants’ cross-examination of plaintiff’s medical experts be restricted to impeachment purposes. See plaintiff’s motion to preclude evidence of, references to and examination of plaintiff’s expert witnesses and the settling defendants on DVT/PE prophylaxis, non-settling defendants’ responses thereto, court order dated September 16, 2013, ruling on the motion, and plaintiff’s objection at the time of trial. (N.T. 10/2/13, p. 3) (making no distinction in plaintiff’s objection to the non-settling defendants’ cross-examination of plaintiff’s medical witnesses between cross-examination for substantive or impeachment purposes).