author: McFADDEN, J.,

text:
    Langoussis v. Easton Hospital

      C.P. of Northampton County,
    no. C0048CV2002-001456.

      Donald P. Russo, for plaintiff.

      Roger J. Susanin and John A. Adams, for defendant.
    October 25, 2002
   McFADDEN, J.,

STATEMENT OF REASONS

Presently before the court for disposition are the preliminary objections of the defendant, Easton Hospital, to the complaint filed by the plaintiff, Teresa Langoussis. By way of their preliminary objections, the defendant seeks dismissal of the complaint for failure to state a claim upon which relief can be granted.

This matter was assigned to the Honorable F.P. Kimberly McFadden from the August 27,2002 argument list. Following review of the complaint and the briefs submitted in relation to the preliminary objections, this matter is now ready for disposition.

FACTUAL/PROCEDURAL HISTORY

Plaintiff, Teresa Langoussis, was employed by defendant, Easton Hospital, as a dialysis nurse manager. On September 25, 2001, defendant terminated plaintiff’s employment. On May 8, 2002, plaintiff filed this complaint, claiming a violation of the Pennsylvania Whistle-blower Law for discriminatory and retaliatory discharge.

The complaint alleges that plaintiff made a good faith report to defendant regarding wrongdoing and waste in the dialysis unit. Plaintiff further claims that she reported to administration concerns regarding patient care, equipment breakdowns, staffing problems, supply shortages, and violations of nephrology practices. Plaintiff claims that her actions were protected by the Pennsylvania Whistleblower Law and that her subsequent discharge on September 25, 2001, was retaliatory and discriminatory and, thus, a violation of that law.

LEGAL STANDARD

In ruling upon a demurrer, we must accept as true all well pleaded allegations and material facts averred in the complaint as well as all reasonable inferences deducible therefrom. Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 584 A.2d 403 (1990). This court’s analysis is confined to the complaint itself. Pawlowski v. Smorto, 403 Pa. Super. 71, 588 A.2d 36 (1991). In the face of a demurrer, a complaint should only be dismissed in cases that are clear and free from doubt. If any theory of law will support a claim, preliminary objections are not to be sustained, as any doubt should be resolved against the objecting parties. Foster v. Peat, Marwick, Main & Co., 138 Pa. Commw. 147, 587 A.2d 382 (1991), aff’d, 544 Pa. 387, 676 A.2d 652 (1996). A preliminary objection in the nature of a demurrer will be sustained only when it appears with certainty that the law permits no recovery under the allegations pleaded. City of Philadelphia v. Buck, 138 Pa. Commw. 250, 587 A.2d 875 (1991), appeal denied, 528 Pa. 618, 596 A.2d 801 (1991).

DISCUSSION

Defendant has withdrawn his preliminary objection claiming the action is time barred. The court will now address the remaining preliminary objection for dismissal of Count I of plaintiff’s complaint.

Defendant contends that they are not subject to Pennsylvania’s Whistleblower Law because they are a private hospital and not a “public body,” as is required by the statute. Defendant argues that the complaint should be dismissed for failure to state a claim upon which relief can be granted.

Pennsylvania’s Whistleblower Law makes it unlawful for a public employer to “discharge, threaten or otherwise discriminate or retaliate against an employee . . . because the employee or a person acting on behalf of the employee makes a good faith report... to the employer or appropriate authority an instance of wrongdoing or waste.” 43 P.S. § 1423(a). An “employer” is a “person supervising one or more employees, including the employee in question; a superior of that supervisor; or an agent of a public body.” 43 P.S. § 1422. A “public body” is any body created by the Commonwealth or “which is funded in any amount by or through Commonwealth or political subdivision authority or a member of employee of that body.” 43 P.S. §1422. (emphasis added) Plaintiff alleges that defendant receives Medicaid funds through the state and that funding qualifies defendant as a “public body” for purposes of the Whistleblower Law.

In Denton v. Silver Stream Nursing & Rehabilitation Center, 739 A.2d 571 (Pa. Super. 1999), a recipient of Medicaid funding is a “public body” for purposes of the Whistleblower Law. Id. at 576. In Denton the plaintiff raised a claim under the Whistleblower Law, alleging that she had been fired from her job in retaliation for carrying on a “clean-up” campaign with management and corporate officials regarding the abuses and instances of wrongdoing she discovered. Id. at 573. The defendant, a private nursing home, claimed that receiving Medicaid funding did not qualify them as a “public body” for the purposes of the Whistleblower Law, citing Cohen v. Salick Health Care, 772 F. Supp. 1521 (E.D. Pa. 1991). The Superior Court disagreed with Cohen, explaining that “the plain meaning of the language of the statute makes it clear that it was intended to apply to all agencies that receive public monies under the administration of the Commonwealth.” Id. at 576. The court further stated, “The law clearly indicates that it is intended to be applied to bodies that receive not only money appropriated by the Commonwealth, but also public money that passes through the Commonwealth” and that “a recipient of Medicaid funding is a ‘public body’ for purposes of the Whistleblower Law.” Id. (emphasis in original)

Defendant, Easton Hospital, is a private hospital that receives Medicaid funding. Following Denton, defendant constitutes a “public body” for purposes of the Pennsylvania Whistleblower Law.

ORDER

And now, October 25, 2002, upon consideration of the preliminary objections filed on behalf of defendant, Easton Hospital, it is hereby ordered and decreed that said preliminary objections are denied.

Defendant, Easton Hospital, is directed to file an answer to plaintiff’s complaint within 20 days from the date of this order.


source: Caselaw Access Project

author: GOODHEART, S.J.,

license: Public Domain

text:
    Stetler v. Piecyk

      Paul M. Pearlstein, for plaintiff.

      Nicholas Deenis, for defendant Archdiocese of Philadelphia.

      Suzanne Reilly, for defendant City of Philadelphia.

      John Robert Brown, for defendant Piecyk.
    June 24, 2002
   GOODHEART, S.J.,

INTRODUCTION

The plaintiff timely appeals from the entry of judgment on my order of May 7, 2002, denying her motion to remove a compulsory nonsuit that I entered as to her claims against the Archdiocese of Philadelphia, St. Martha’s School and St. Martha’s Parish (collectively, the Archdiocesan defendants) on September 26, 2001, after the close of the plaintiff’s case the previous afternoon. Defendant Joyce Piecyk, owner of the car driven by defendant Mark Piecyk, was let out of the case in December 2000, and the City of Philadelphia settled with the plaintiff shortly before trial. Because the sole remaining defendant, Mark Piecyk, conceded liability, the case went to the jury solely for a determination of damages. The jury returned a verdict of $1,793,132.30 against Mr. Piecyk, who filed no post-trial motions, and the award against him — which will probably never be paid — is not at issue in this appeal.

The plaintiff’s post-trial motion raised 17 allegations of error; one was withdrawn by the plaintiff, and of the remaining 16, the plaintiff concedes that only two are relevant to evaluation of the motion to remove the non-suit. Those issues will be discussed following a brief summary of the underlying facts of this case, which are not substantially in dispute.

BACKGROUND

On February 19, 1997, the minor plaintiff, Joseph Jamison, was riding his bicycle home from St. Martha’s School, on the (eastern) sidewalk of northbound Academy Road in northeast Philadelphia, just north of the school zone, and beyond the northernmost limit of the school property when he was struck and seriously injured by a car being driven by defendant Mark Piecyk. Mr. Piecyk, who acknowledged that he was speeding at the time, lost control of his vehicle after suddenly encountering a stopped bus; his car then left the highway, jumped the curb, and plowed into the minor plaintiff and two other students.

DISCUSSION

1. The Archdiocesan Defendants Owed the Minor Plaintiff No Duty

Fundamentally, there can be no liability for negligence in the absence of a duty owed by the defendant to the plaintiff. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (2000).

Here, the plaintiff’s case against the Archdiocesan defendants was premised upon the assertion that those defendants were obliged to have installed flashing “school zone” signs on Academy Road north and south of the school, in part because defendant Mark Piecyk testified that he “would have” slowed down for the school zone had there been flashing lights directing him to do so, both because he obeys such signs where present, and because other cars would have slowed down, forcing him to do so as well. (N.T. 9/21/2001, pp. 100-103.) Mr. Piecyk was familiar with the area, having attended Archbishop Ryan High School, which is located immediately adjacent to St. Martha’s, and he admitted that he knew that he was in a school zone at the time of the accident, that he had seen the posted school zone signs, and that he had nonetheless sped through the area on his way home after stopping at Archbishop Ryan to pick up his girlfriend, who had apparently taken another way home.

The simple truth is that there is no duty, statutory or otherwise, that required the Archdiocesan defendants to install flashing “school zone” signs north and south of St. Martha’s School, and there can thus be no liability imposed upon those defendants for failing to do so.

This is consistent with the holding of the Montgomery County Court of Common Pleas, in Watson v. PennDOT, no. 87-07298, 1996 WL 942124 (1996); 33 D.&C.4th 325 (1996), to the effect that a private school has no duty to provide a safe means of crossing a public street, at least in the case where classes have ended for the day, the child is beyond the school’s property and on his or her way home, and is not en route to a school-sponsored activity.

Though the applicability of the Sovereign Immunity Act, 42 Pa.C.S. §8521 et seq., and the Political Subdivisions Tort Claims Act, 42 Pa.C.S. §8541 et seq. complicates matters somewhat, the holding in Stein v. PennDOT, 144 Pa. Commw. 105, 601 A.2d 384 (1991), is also instructive; there, the plaintiff, a teenager, was struck by a car while crossing U.S. Route 19, in Upper St. Clair Township, Allegheny County, en route to classes at Upper St. Clair High School, which was located directly across the highway from the point at which the plaintiff had attempted to cross. She, through her parents, sued PennDOT, the Upper St. Clair School District and the Township of Upper St. Clair, for negligence.

After disposing of the governmental and sovereign immunity questions, the Commonwealth Court, sitting en banc, found that the fact that the plaintiff was a student in the Upper St. Clair School District did not create a higher duty on the part of the district to protect her from harm while on her way to school.

It is also clear that the Archdiocesan defendants could not have erected flashing school zone signs on their own; 75 Pa.C.S. §6125 provides that “[n]o person shall place, maintain or display upon or in view of any highway any unauthorized sign, signal, marking or device which purports to be or is an imitation of or resembles an official traffic-control device, or which attempts to direct the movement of traffic ....” The corresponding section of the Pennsylvania Code, 67 Pa. Code §201.32, provides that local authorities are responsible for erecting official traffic-control devices for school zone speed limits on highways.” (emphasis added)

Finally, the plaintiff’s contention that the Archdiocesan defendants breached a duty that they had assumed, pursuant to Restatement (Second) of Torts §323 (1995), by applying for, but failing to secure the installation of, flashing school zone lights also lacks a basis in law.

Restatement (Second) of Torts §323 reads, in pertinent part, as follows:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
“(a) his failure to exercise such care increases the risk of such harm, or
“(b) the harm is suffered because of the other’s reliance upon the undertaking.”

Section 323 does not apply to this case because the Archdiocesan defendants rendered no “service” to the plaintiff within the meaning of the section by the mere act of applying for the installation of flashing school zone lights, and were thus under no duty to exercise reasonable care in connection with doing so.

Moreover — even if the act of making application for the flashing signs can be construed as the rendering of a service by the Archdiocesan defendants — the plaintiff was left no worse off by the effort, eliminating section 323(a) as a basis for liability, and in any event, there is no contention that the plaintiff “relied” upon any act or omission of the Archdiocesan defendants in any manner relevant to this case; there can also be no liability under section 323(b).

It is thus clear that section 323 of the Restatement (Second) of Torts has no application to this case.

2. The Archdiocesan Defendants’ Liability Was Not Previously Decided

The plaintiff also contends that, by denying the Archdiocesan defendants’ motion for summary judgment, in November 2000,1 implicitly found that those defendants owed a duty to the plaintiff. That is simply not the law. Denial of a defense motion for summary judgment does not necessarily imply that the plaintiff will prevail at trial, but only that — at a particular point in time — the evidence is not of such crystalline quality as to justify releasing the defendants from the case. The plaintiff’s argument on coordinate jurisdiction simply misses the point.

3. The Plaintiff Was Not Entitled to Recusal or a Mistrial

The plaintiff moved for a mistrial just once, at the end of opening speeches, following what counsel considered to be improper remarks made by counsel for the city. This motion, unrelated to any allegations of bias on my part, was properly denied.

The plaintiff also moved for recusal just once, while the jury was being selected, on the basis that I had improperly restricted his ability to ask the prospective jurors questions. This motion was also unrelated to any allegations of bias, and was also properly denied.

In order to preserve an issue of alleged bias for appellate review, the complaining party must (a) make timely objection, and (b) raise the issue in post-trial motions. Goodheart v. Casey, 523 Pa. 188, 565 A.2d 757 (1989). The only exception is in the rare instance where the complaining party can show that having objected during trial would only have made matters worse; the fact that the objection would likely have been overruled — without more — is not sufficient. Commonwealth v. Hammer, 508 Pa. 88, 494 A.2d 1054 (1985).

Here, the plaintiff made no objection on the basis of alleged bias to anything that transpired during trial, and has made no showing that such an objection — if made— would only have aggravated the situation. Thus, the issue of bias has been waived.

As evidence of my alleged bias, the plaintiff complains that I denied the motions of the Archdiocesan defendants (and the city) for summary judgment without considering the law or the facts. Evidently, plaintiff’s counsel believes that I should have granted those motions, and the fact that I did not do so shows that I was biased against him. This argument is difficult to comprehend, particularly in view of my comments, made September 26, 2001 — outside the presence of the jury, and not in open court as the plaintiff alleges — as to why I had denied those motions:

“I was looking for a reason not to grant summary judgment because I knew there was only $15,000 worth of insurance coverage in this case by the perpetrator of this horrible loss and I looked for any reason to keep the case alive against empty pockets. I admit it.” (N.T. 9/26/2001, p. 23.)

I knew (or at least strongly suspected) very early in my involvement with this matter that the plaintiff would be unable to establish the existence of a duty running from the Archdiocesan defendants (or the city) to the plaintiff, and that a compulsory nonsuit would be the likely outcome at trial. There is no dispute that the plaintiff was grievously injured, that defendant Mark Piecyk was criminally negligent and that — in the absence of liability on the part of the city or the Archdiocesan defendants — the ultimate judgment in this matter would almost certainly be uncollectible.

I was able, through colloquy with counsel for the City of Philadelphia to secure a settlement offer from the city, which the plaintiff accepted, and which I accurately characterized as “a gift,” given what I then knew would be the outcome. (N.T. 9/26/2001, p. 23.) Had I not “kept the case alive,” the plaintiff would not have received the city’s $75,000 payment.

This was, in short, a terrible, heart-rending case. Liability was conceded, and damages were obviously quite significant, but the only defendant who, as a matter of law, could ultimately be held responsible had only the most minimal resources, several orders of magnitude less than the amount of the jury award. If I showed favoritism toward any party during this trial, it would have been toward the plaintiff, for whom the system has utterly failed.

CONCLUSION

For the reasons set forth above, which give me no pleasure, my decision to deny post-trial relief should be affirmed. In addition, I implore the Pennsylvania Legislature to re-examine the financial responsibility law to determine a minimum amount of liability coverage that is more consistent with the economic realities of the 21st century.

      . This tragic accident — which caused the minor plaintiff devastating injuries — was caused by the inexcusably reckless driving of defendant Mark Piecyk, who carried just $15,000 in insurance coverage, the scandalously inadequate minimum required by Pennsylvania law.

      . The appeal from this order was quashed as being interlocutory; because the matter subsequently settled, no appellate court opinion ever addressed the merits of the case.

      . Probably a transcription error; given the context, I almost without question said “against other than empty pockets.”

      . Mr. Piecyk was convicted of three counts of simple assault and three counts of recklessly endangering another person, and served time in prison.


author: DlNUBILE, J.,

text:
    Stout v. Morrisville Supply Corp.

      Frank D. Branella, for plaintiff.

      Gary B. Cutler, for defendant.
    September 14, 2001
   DlNUBILE, J.,

This opinion arises from the denial of post-trial motions of defendant Morrisville Supply Corp. and the entry of judgment against it in a negligence action arising from a jury’s verdict in favor of the plaintiff, Leroy Stout, in the amount of $2,465,000, as well as the sum of $372,333.18 for delay damages, totaling $2,837,333.18. The jury also found in favor of the defendant against the plaintiff’s estranged wife, Carol Stout, in her claim for loss of consortium by awarding zero damages. Two other defendants, Portee Inc. and Labor Ready Inc., settled during the trial, executing a joint tort-feasor release. The liability of Portee was submitted to the jury solely for purposes of determining Morrisville’s percentage of liability in the event the jury found both defendants culpable. The liability of Ready was not submitted since the court concluded there was insufficient evidence. The liability of Portee became important in light of the jury’s findings. The jury awarded a total verdict of $2,900,000. It found Portee to be 15 percent causally liable in relation to Morrisville. Consequently, the verdict was molded against defendant Morrisville at 85 percent of $2,900,000 ($2,465,000), reflecting the reduction of 15 percent attributable to Portee.

This was a work site injury. Plaintiff was an employee of Pennsbury Excavating and Landscaping Co. (5/7/01, a.m. session, pp. 8-10.) He was operating a front-end loader in which he was placing pre-stressed concrete into a hydraulic screen plant through what was called a “grizzly.” The purpose of the machine was to crush the pieces of pre-stressed concrete, some of which were reinforced with steel. This material then would be removed from the site and sold by the defendant. The hydraulic screen plant carried the material on a conveyer. At some point, the machine jammed. While attempting to stop the conveyer, plaintiff left his front-end loader and was struck in the head by a piece of falling concrete. Plaintiff maintained that as a result of this head injury, he suffers from constant vertigo, imbalance, headaches, brain damage resulting in cognitive deficits, loss of memory and depression. Since age 26, when the incident occurred, he claims to have become disabled. Plaintiff asserted, through his economic expert, that his lost wages and future earning capacity loss ranged anywhere from $1.5 million to $2.9 million.

Plaintiff’s major theory against Portee, the manufacturer of the hydraulic screen plant, was in products liability. He asserted that Morrisville, as the supervisor of the work site, was negligent in either creating a dangerous condition in the machine through subsequent modification or, in the alternative, allowing it to be run in a dangerous condition which existed when defendant took control of it. Plaintiff also sued Ready on the grounds that it had supplied unskilled workers to operate the machine. The testimony at trial revealed that employees of Ready on the scene at the time of the accident were not involved in any way in its operation. At best, there had been some testimony that when the machine had jammed on prior occasions, Ready’s laborers would assist in its unclogging. As stated, Portee and Ready settled during the course of the trial. Plaintiff also had abandoned his products liability claim at that time. Therefore, the case went to the jury solely on the issue of negligence of Morrisville as well as possible negligence on the part of Portee for failure to erect shields on the conveyer belt. Since there was no evidence of any liability on the part of Ready’s supplied laborers, its negligence was not submitted to the jury. The jury also had to consider the contributory negligence of plaintiff himself since there was undisputed evidence that he was not wearing a hard hat at the time that he was stuck on the head by the pre-stressed concrete. He had maintained that he had loaned his helmet to one of the Ready workers because there were insufficient hard hats available for the employees to use. His testimony was corroborated by one of the Ready employees who testified on plaintiff’s behalf. The jury found plaintiff to be negligent, but found no causal connection between it and the harm to him, thus absolving plaintiff of liability.

This case was contested as to all aspects, namely, negligence, causation, contributory negligence and damages. Numerous experts were called on behalf of both sides in support of their respective positions on all of these issues. Plaintiff’s principal theory of liability against Morrisville was that it was negligent as to safety concerns in the supervision of the work site. More particularly, there was a dangerous condition contained in the hydraulic screen plant, either created by Morrisville, or if the condition was created by Portee, defendant allowed it to remain. It was plaintiff’s contention, through his safety expert, William Halmstadt, that the hopper, the opening leading to the conveyor, enlarged by defendant Morrisville, caused larger pieces of concrete to get into it (conveyor) than was intended. As a result of this enlargement, some pieces of material were too big for the conveyor, resulting in the jamming of the machine and some concrete to fall. Plaintiff’s expert also opined that the lack of shields on the conveyor, to prevent the objects from falling, also made the machine unreasonably dangerous to workers as well. This latter theory of negligence was attributable to both Portee in the manufacturing without them and to Morrisville in not correcting this situation. According to plaintiff’s theory, the machine jammed because of the enlarged opening. When plaintiff went to stop the machine, a piece struck him, falling from the conveyor because there were no shields. The defense countered that the machine was safe, that any subsequent modifications made or lack of shields on the conveyor had no bearing on any injury suffered by plaintiff.

The defendant raises several ancillary issues in post-trial motions, such as the qualifications of plaintiff’s experts, the contributory negligence issue, insufficient evidence to support the verdict, remittitur, the court’s charge as to negligence and mitigation of damages, that the jury was made aware of settlement negotiations during trial to its prejudice as well as certain evidentiary rulings made by the court. It’s principal ground, however, is that the defendant is immune from liability under the Workers’ Compensation Act pursuant to the borrowed servant doctrine. These issues raised are without merit and will be discussed seriatim.

Defense asserts immunity from liability under the Workers’ Compensation Act, 77 P.S. §1 et seq., in that it alleges at the time of the incident, Mr. Stout was a “borrowed servant” of the defendant from his employer, Pennsbury. The law governing this doctrine is well established. The rule was laid out by our Supreme Court in JFC Temps Inc., v. W.C.A.B. (Lindsay), 545 Pa. 149, 680 A.2d 862 (1996).

“The test for determining whether a servant furnished by one person to another becomes the employee of the person to whom he is loaned is whether he passes under the latter’s right of control with regard not only to the work to be done but also to the manner of performing it. Hamler v. Waldron, 445 Pa. 262, 265, 284 A.2d 725, 726 (1971); Mature v. Angelo, 373 Pa. 593, 595, 97 A.2d 59, 60 (1953). The entity possessing the right to control the manner of the performance of the servant’s work is the employer, irrespective of whether the control is actually exercised. Mature, 373 Pa. at 596, 97 A.2d at 60. Other factors which may be relevant include the right to select and discharge the employee and the skill or expertise required for the performance of the work. Id. at 597, 97 A.2d at 60. The payment of wages may be considered, but is not a determinative factor. Venezia v. Philadelphia Electric Company, 317 Pa. 557, 177 A. 25 (1935). Although the examination of these factors guides the determination, each case must be decided on its own facts. Daily Express Inc. v. Workmen’s Compensation Appeal Board, 46 Pa. Commw. 434, 406 A.2d 600 (1979).” JFC Temps Inc., 545 Pa. at 153, 680 A.2d at 864.

This defense is inapplicable because the facts were not clear cut as to whether the plaintiff was either working for his own employer or under the control of Morrisville at the time of the incident. In order to undertake an analysis of this issue, it is necessary to recite the facts involving the employment status of the plaintiff and his employer’s relationship with defendant Morrisville. Although every factual aspect of this case was vigorously disputed, the relationship between Pennsbury and Morrisville basically is not contested. Therefore, the borrowed servant issue was a matter of law for this court to decide. English v. Lehigh Cty. Authority, 286 Pa. Super. 312, 322, 428 A.2d 1343, 1348 (1981). See also, Keller v. Old Lycoming Township, 286 Pa. Super. 339, 428 A.2d 1358 (1981). Both Pennsbury, Morrisville and a third corporation were inextricably interrelated in that Francis Branagan, a major defense witness, appeared to be involved in the ownership of all three and was both vice president and general manager of the defendant, the third corporation, and plaintiff’s employer. (5/1/01, pp. 51-52; 5/8/01, a.m. session, p. 14.) Prior to the incident, Morrisville and the owner of the site in question, Stresscon Inc., entered into a contract for the crushing and removal of the unwanted pre-stressed concrete and other debris from the Stresscon site. Apparently, the subject matter of the contract was waste material which could not be used in Stresscon’s business. In return for this service, Stresscon paid Morrisville, permitted defendant to obtain waste material from other sources, bring it to the site, crush it, remove it along with the Stresscon material and sell it. Morrisville also was given possession of this site by virtue of a $1 a year lease between it and Stresscon. Morrisville in turn contracted with Pennsbury to supply heavy equipment operators to load and crush the pre-stressed concrete. In consideration, Morrisville paid Pennsbury in money and/or materials. As stated, Francis Branagan, as vice president and general manager of both companies, was first in charge of the work site. Second in control was one George Seifert, who, according to his testimony, was foreman for Momsville on the day of the accident. (5/3/01, p.m. session, pp. 35-36.) Branagan, on the other hand, asserted that Seifert worked for Pennsbury at that time. (5/8/01, a.m. session, p. 16.)

Case law, as well as these facts, operate against Morrisville’s claim for immunity. The leading Pennsylvania Supreme Court case of Kiehl v. Action Manufacturing Company, 517 Pa. 183, 535 A.2d 571 (1987), is most instructive. The opinion in this case lays out the test to be applied to determine whether a person is working for one company as opposed to another where the ownership relationship between the companies is one of parent and subsidiary or otherwise is interrelated. Where the functions of each corporation are separate and distinct and that the employee was pursuing work on behalf of his employer when injured, then the other company cannot assert immunity under workers’ compensation. Here, the functions of both Morrisville and Pennsbury were separate and distinct. Morrisville had contracted to crush and remove the pre-stressed concrete. The function of Pennsbury was to supply heavy equipment operators to collect and crush the material. There is no question that, at the time of the incident, plaintiff was operating the front-end loader pursuant to his employer’s contract with Morrisville. Secondly, and most importantly of all, it was not clear cut as to whether Mr. Branagan, as vice president and manager, or Seifert, as the foreman, were working on behalf of Pennsbury or Morrisville when the incident occurred. Under these circumstances, how can Morrisville assert the borrowed servant doctrine when it was not clear for whom Branagan and Seifert were working at the time of this accident? The lines of demarcation between who was working for whom are too vague. See also, Ashman v. Sharon Steel Corp., 302 Pa. Super. 305, 448 A.2d 1054 (1982); Joyce v. Super Fresh Markets Inc., 815 F.2d 943 (3d Cir. 1987).

Two other factors militate against Morrisville in its attempt to assert immunity as the borrowing employer. Plaintiff was a skilled operator of the front-end loader and the machine itself. He was paid by Pennsbury. Although not conclusive of this issue, these two matters, when added to the unclear lines of command as to which entity controlled or had a right to control plaintiff, lead this court to the conclusion that defendant cannot successfully assert immunity here. If the so-called borrowed servant is a skilled employee requiring a certain expertise to perform the work, it is less likely that the alleged borrowed servant is under control of the party seeking to assert immunity. See Ashman, supra; Williams v. Delta Truck Body Co. Inc., 892 F.2d 327 (3d Cir. 1989). Mr. Stout’s function was to operate the front-end loader and the machine in question, if necessary. It was undisputed that he was skilled for these functions. Under these circumstances, it is more likely that when performing these duties he would be subject to the control of his employer. Plaintiff must be given the benefit of these assumptions, since it is defendant who asserts the immunity defense. See English, supra at 322, 428 A.2d at 1348-49.

Finally, Judge Spaeth in the English case, discussed a requirement of consent, concluding that a workman cannot be loaned out and become the employee of another without consent. See 286 Pa. Super, at 331, 428 A.2d at 1353-54. Although in English, and in most of the cases where the borrowed servant doctrine was held to apply, consent was not a factor and was implied because the injured workers in question were hired out as temporary labors, etc., this situation did not exist here. Consequently, the issue of Stout’s consent to work for defendant is viable. There is nothing in this record indicating any such consent. As far as plaintiff was concerned, he was working for Pennsbury. On this fact alone, defendant’s immunity claim could fail. For the foregoing reasons, the borrowed servant doctrine is inapplicable. See Mathis v. United Engineers & Constructors Inc., 381 Pa. Super. 466, 554 A.2d 96 (1989).

As stated, defendant raises the following additional grounds for post-trial relief. Defendant attacks the qualifications of plaintiff’s safety expert, William Halmstadt, on Frye grounds. See Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923); Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977); Blum v. Merrel Dow Pharmaceuticals Inc., 564 Pa. 3, 764 A.2d 1 (2000). Morrisville maintains that his testimony should have been precluded and a Frye hearing should have been held. It is clear from a reading of Mr. Halmstadt’s testimony that he was well qualified to state his opinions. He had a master’s degree in occupational safety and health, with extensive experience as a corporate safety consultant. (4/27/01, p. 34; 5/4/01, pp. 40-42.) He certainly was as qualified to testify as defendant’s expert, who arrived at an opposite conclusion. The qualifications of, and the opinions expressed by, plaintiff’s expert fell well within the acceptable parameters of the Frye criteria. The Frye test cannot be used to usurp the fact-finding function of the jury. The issue cannot be raised simply because defendant lost the factual battle with plaintiff as to the safety issue.

Morrisville’s counsel argued that the cause of this incident was plaintiff’s failure to wear a hard hat. In its post-trial motions, it is further argued that as a matter of law there existed contributory negligence on the part of plaintiff. In defendant’s brief, this issue was framed as a duty on the part of plaintiff to mitigate damages. There was conflicting testimony concerning the hard hat situation; defendant maintained that there were plenty of hard hats available and plaintiff was contributorily negligent for failing to wear one. Although the jury found negligence on the part of plaintiff, it concluded that it was not a substantial factor in bringing about harm to him. In arriving at this conclusion, the jury must have determined that he did in fact lend his hard hat to a Ready laborer and there were no extra ones available to him. Or, in the alternative, the injury would have occurred even if he were wearing it. This conclusion that plaintiff was not liable, consequently no duty to mitigate damages was owed, was well within the province of the jury and defendant’s post-trial ground that as a matter of law plaintiff was liable must be denied.

The damage issue was as vigorously contested as that of liability/causation. Both sides called neurologists, psychiatrists, psychologists and rehabilitation experts who tested plaintiff, all arriving at diametrically opposite conclusions concerning the cause of his injuries. Since these issues were for the jury, the court, in analyzing the defendant’s post-trial motions, is obligated to accept the evidence in a light most favorable to plaintiff. Applying this principle, it must be assumed that Morrisville’s negligence was the cause of plaintiff’s continuing vertigo, brain damage, disability and depression. Consequently, defendant’s general-post trial assertion that there was insufficient evidence presented to support the verdict must fail. Defendant’s claim that the verdict should be remitted is also without merit since the jury found that the injury resulted in total disability of plaintiff, coupled with permanent brain damage, disability and depression.

At trial, defendant took issue with the court’s charge on negligence. As stated, plaintiff’s theory of liability against Morrisville, as the manager of the work site, was based upon allowing the operation of a dangerous machine on the premises. In accordance with this theory, the court charged the jury that Morrisville, as the supervisor of the project, owed a duty of reasonable care to workers on the site to protect them from any unreasonably dangerous condition. The court then specifically emphasized to the jury that the alleged dangerous condition was the machine in question (the hydraulic screen plant). The court instructed them that they first had to determine whether the machine was dangerous. If so, did Morrisville create this dangerous condition in the machine, make it dangerous, or fail to correct any dangerous condition that may have existed in the machine when it took control of the project? If the latter were the case, the jury was instructed to inquire whether Morrisville knew, or should have known, about this dangerous condition. As stated, the hydraulic screen plant was manufactured by Portee, sold to its distributor, L B Smith, who in turn sold it to a third party. It was then sold by this third party, at the direction of L B Smith, to Pennsbury, plaintiff’s employer, by virtue of a lease purchase agreement. The machine was then subsequently altered by a Michael Gatter. He was an employee of a third corporation in which Francis Branagan was also vice president and general manager. It was at Branagan’s direction that the machine was so altered.

Defense counsel asserted that the court, in charging the jury on the negligence issue, should have told the jury that Morrisville, in order to be held liable, had to know, or should have known, of this dangerous condition. It is submitted that the court’s charge covered this very point. The court specifically stated to the jury that if the machine came to the premises in a dangerous condition, then defendant could not be liable unless it knew, or should have known, about it. It appears that the defense wanted the court to use this terminology as to whether it initially knew that the machine was dangerous. To do so would have been confusing to the jury since the defendant certainly would have known the condition of the machine since the modifications were done at Mr. Branagan’s direction. The better approach was that taken by the court in its charge. It instructed the jury that defendant could be found liable in one of two ways. First, by virtue of Morrisville’s subsequent alteration of the machine, or if the machine came onto the work site already containing a dangerous condition (e.g., lack of shields on the conveyer belt). Under these latter circumstances, this dangerous condition was not created by the defendant. Therefore, the knowledge aspect became important as to whether Morrisville knew, or should have known, about this dangerous condition. Consequently, the court’s charge on this issue was correct.

Defendant takes issue with the fact that its motion for mistrial, made on May 10, 2001, should have been granted. Defendant’s counsel asserted, through Mr. Branagan and defense witnesses, that during the trial, two days before, on May 8,2001, when the court was in recess due to settlement negotiations between counsel for Morrisville and plaintiff, the jury may have heard or concluded that settlement negotiations were taking place because the judge used the term “settlement,” or words to that effect, in close proximity to the jury. (5/10/01 a.m. session, pp. 4-19.) Counsel therefore argued that if the jury knew that settlement negotiations were occurring, they would have been prone to find for plaintiff. The court does not believe that the jury was made aware of the settlement negotiations as a result of any conduct on the part of the court. In any event, the court admonished the jury at least three times thereafter that they were to decide this case based on the evidence presented to them on the witness stand, what they saw, what they heard, what they observed during the course of the trial. The court further instructed them not to consider any extraneous matters not brought up in the courtroom. (5/10/01 a.m. session, pp. 18-19; 5/11/01, pp. 75, 129-30.) In addition, it must be brought to mind that several days before, the other two defendants settled with plaintiff. Their principals, witnesses and counsel were no longer present for the remainder of the trial. The judge, when the trial resumed without them after they had settled, instructed the jury that the fact that these parties were no longer present should in no way affect their decision as to the liability of the remaining defendant. (5/4/01, pp. 80-84.) It is difficult to conceive, under these circumstances, how the outcome of the case was affected by anything that might have occurred during the recess in question. In this day and age, jurors are sophisticated enough to know that there is always a potential for settlement and that any attempts to do so should have no bearing on their decision.

Defense took exception to the trial judge’s refusal to charge on mitigation of damages. Defense wanted this court to instruct the jury that if plaintiff could go back to work, it was his duty to do so since he is under an obligation to mitigate damages. The court, although not using the term “mitigation of damages” in its charge, instructed on this very point. The court told the jury that it would be totally and completely up to them to determine what, if any, amount to award for past loss of wages and future loss of earning capacity. One of the factors in determining what to award was, first, to determine whether Mr. Stout was totally or partially disabled. If they found that he was not totally disabled, then the jury had to determine when, either sometime in the past or sometime in the future, he would be able to go back to work. Consequently, the court’s charge was proper.

The defense raises other issues as follows: Defendant asserted that it was surprised and prejudiced by the testimony of Guillermo Bumal M.D., plaintiff’s treating physiatrist. He merely testified to the treatment he rendered which was covered in detail by plaintiff’s principal treating and medical witness, Emil Matarese M.D., a neurologist. Dr. Burnal’s testimony was cumulative at best. Defendant also objects to the testimony of Carol Straiton, plaintiff’s physical therapist; asserting that the computer test results concerning his balance problems were beyond her qualifications. This claim is without merit and in any event corroborated by plaintiff’s other medical experts and medical records which confirmed Mr. Stout’s balance and vertigo maladies.

Defendant maintains that in cross-examining defendant’s expert neurologist, Richard Katz M.D., (he testified by way of a videotaped deposition) plaintiff’s counsel was permitted to ask him whether he testified for insurance companies and the extent to which he did so. The court permitted some of the questions and sustained others at a hearing prior to its showing. (5/8/01, p.m. session, pp. 68-75.) It is submitted that the rulings were proper, fair and not prejudicial to plaintiff.

Defendant maintains that the court’s pretrial order precluding alleged drug use on the part of plaintiff was error. This court disagrees. Plaintiff was hospitalized 12 days for meningitis in late December 1990 to early January 1991. The record was unclear as to whether he tested positive for drugs at that time. Defendant wanted to use this information either to attack his credibility or connect the drug use as the cause of his present injuries. The court disallowed it for two reasons. The fact of drug use six years before the incident was not relevant to the issues present at trial. (See Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666 (1999).) Secondly, the fact of use was not firmly established. Thus, a side trial would have occurred as to whether plaintiff used drugs at the time. Under these circumstances, it would have been prejudicial to have allowed it. (4/27/01, pp. 14-18.)

Finally, the defense argues that the court allowed certain plaintiff’s experts, namely, Mr. Helmstadt, Dr. Bernal, Dr. Donald Jennings (a vocational psychologist), to testify beyond the “four comers” of their reports. The record belies this contention. Plaintiff’s theories and defendant’s defense were well known to all parties prior to trial. For this reason, there were no prejudicial surprises. Since these grounds for post-trial relief are without merit as well, judgment is entered accordingly on the verdict.

ORDER

And now, September 14, 2001, the post-trial motions of both defendant, Morrisville Supply Corp., and plaintiff, Leroy Stout, are hereby denied. Judgment accordingly is entered on the jury’s verdict in favor of plaintiff, Leroy Stout, and against defendant, Morrisville Supply Corp., in the amount of $2,465,000. Delay damages also are assessed in the amount of $372,333.18, resulting in the total judgment entered in favor of plaintiff and against defendant in the amount of $2,837,333.18.

Pursuant to the jury’s verdict, judgment is also entered in favor of the defendant, Morrisville Supply Corp., and against plaintiff, Carol Stout.

      . Plaintiff has filed cross-post-trial motions seeking a pro tanto reduction in the verdict and entry of judgment in the amount of $2,825,000 with concomitant delay damages. This sum was arrived at by reducing the jury award of $2,900,000 by $75,000, the amount of the settlement with Portee. This motion was denied since the releases executed were pro rata in nature. (5/4/01, pp. 80-83.) Plaintiff cites Baker v. ACandS, 562 Pa. 290, 755 A.2d 664 (2000), in support for the pro tanto setoff. This case is not applicable. It involved asbestos litigation and the effect of the non-settling defendant’s liability relating to the Manville Trust’s share of the verdict. It in no way modifies or changes the law as provided in Uniform Contribution Among Joint Tort-Feasor Act, 42 Pa.C.S. §8326. See also, Charles v. Giant Eagle Markets, 513 Pa. 474, 522 A.2d 1 (1987).


author: QUIÑONES ALEJANDRO, J.,

text:
    McMahon v. Constantino

      Eric G. Zajac, for plaintiffs.

      Stanley P. Stahl, for defendants.
    July 26, 2001
   QUIÑONES ALEJANDRO, J.,

INTRODUCTION

Dawn McMahon and James McMahon, plaintiffs, argue on appeal that the preliminary objection challenging venue and requesting a transfer of the case to Bucks County, filed by George Constantino M.D., and C.V. Surgical Associates PC., defendants, was erroneously sustained. This motion judge disagrees.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

This motion judge carefully reviewed the pleadings, exhibits, and the memorandum filed in this matter. Briefly, the factual and procedural record defined by these pleadings, is as follows:

“Plaintiffs Dawn and James McMahon, wife and husband, reside at 1217 Magnolia Avenue, Croyden, Bucks County, Pennsylvania.
“Defendant George Constantino M.D. is a physician licensed in the Commonwealth of Pennsylvania, and employed at defendant C.V. Surgical Associates PC.
“Defendant C. V. Surgical Associates is a professional corporation located at 402 Middletown Boulevard, Suite 214, Langhome, Bucks County, Pennsylvania.
“On January 28, 1999, plaintiff-wife was treated by defendants for her complaints of esophagitis reflux. Based upon defendant Constantino’s findings, she was scheduled for a laparoscopic fundoplication.
“On February 4, 1999, plaintiff-wife underwent a barium swallow esophogram which showed no evidence of a hiatal hernia or spontaneous reflux, and a normal swallowing function.
“On February 24, 1999, plaintiff-wife underwent the scheduled laparoscopic fundoplication which was performed by defendant Constantino.
“On April 19,1999, a follow-up evaluation of the stomach showed a deformity of the fundal region, and a worsening of plaintiff-wife’s symptoms.
“On October 19, 1999, plaintiff-wife consulted with Andrew T. Fanelli M.D., for complaints of exacerbation of her upper GI tract symptomatology. Plaintiff-wife was referred to Daniel T. Dempsey M.D., who practices at Pennsylvania Hospital, Philadelphia, Pennsylvania. On December 10, 1999, Dr. Dempsey performed the revision surgery at Pennsylvania Hospital. Plaintiff-wife continued under the care of Dr. Dempsey through at least March 21, 2000.”

On January 17, 2001, plaintiffs filed a civil action in Philadelphia County alleging professional negligence and medical malpractice against George Constantino M.D., and C.V. Surgical Associates PC. On January 29, 2001, defendants were served with the complaint in Bucks County. On March 16, 2001, defendants filed preliminary objections to the complaint, which were responded to by plaintiffs. On April 5, 2001, plaintiffs filed preliminary objections to defendants’ preliminary objections, essentially challenging the timeliness of defendants’ preliminary objections. These pleadings were assigned to this motion judge. By separate orders dated May 15, 2001, this motion judge overruled plaintiffs’ preliminary objections to defendants’ preliminary objections; sustained defendants’ preliminary objections, and ordered the case transferred to Bucks County, with plaintiffs to pay the costs associated with the transfer.

Dissatisfied with these orders, plaintiffs filed a timely appeal on May 24, 2001.

On July 5,2001, plaintiffs filed a motion for reconsideration, which was denied, as untimely filed.

ISSUE

In response to an order issued in accordance with Pa.R.A.P. 1925(b), plaintiffs on June 4, 2001, filed on record a statement of matters complained of on appeal and argued that this motion judge erred:

“(1) in granting defendants’ preliminary objections in the absence of a meaningful factual record;
“(2) in failing to permit and/or consider discovery on the issue of defendants’ business activities in Philadelphia County even though such discovery was being actively sought by plaintiffs pursuant to Rule 1028(c)(2);
“(3) in failing to recognize that the case does have ties to Philadelphia County;
“(4) in failing to consider plaintiff’s medical care in Philadelphia County;
“(5) in ordering plaintiffs to pay the costs of transfer, in light of the failure of defendants to seek such relief; and
“(6) in overruling plaintiffs’ preliminary objections where defendant offered no reasonable explanation as to the untimeliness of their preliminary objections, and where defendants’ preliminary objections were not endorsed with a notice to plead.”

LAW AND DISCUSSION

Clearly, a trial/motion judge has the discretion to rule on preliminary objections that argue improper venue.' Mathues v. Tim-Bar Corp., 438 Pa. Super. 231, 234, 652 A.2d 349, 351 (1994). A court’s ruling will depend on the facts of the particular case and will not be disturbed if the decision is a reasonable one' in light of the facts. Masel v. Glassman, 456 Pa. Super. 41, 45, 689 A.2d 314, 316 (1997). A plaintiff’s choice of forum is given great weight and it is the defendant who has the burden in asserting a challenge to the plaintiff’s choice of venue. Kubik v. Route 252 Inc., 762 A.2d 1119 (Pa. Super. 2000); Shears v. Rigley, 424 Pa. Super. 559, 564, 623 A.2d 821, 824 (1993). Further, a decision to transfer will not be reversed unless there is a showing of an abuse of discretion. Johnson v. Henkels & McCoy Inc., 707 A.2d 237, 239 (Pa. Super. 1997). To show an abuse of discretion, an appellant must show that in reaching a conclusion, either a law was overridden or misapplied, or the judgment exercised was manifestly unreasonable, or the result of bias, prejudice, or ill will. Id.

“The proper way to challenge venue in a civil action is through a preliminary objection.” Boyce v. St. Paul Property & Liability Insurance Co., 421 Pa. Super. 582, 588, 618 A.2d 962, 965 (1992), see also, Pa.R.C.P. 1006(e) and 1028(a)(1). Questions of venue must be raised at the first reasonable opportunity or they are waived. Kubik, supra.

Pa.R.C.P. 1006(e) also provides that where there is a challenge of improper venue made by preliminary objections, if the preliminary objection is sustained and there is a county of proper venue in the state, the court shall transfer the case to the appropriate court of that county with costs and fees to be paid by the plaintiff.

Venue in an action brought against individual(s) is governed by Pa.R.C.P. 1006(a), which provides, in part:

“[A]n action against an individual may be brought in and only in a county in which the individual may be served or in which the cause of action arose or where the transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.”

Venue in an action against a corporation is governed by Rule 2179(a), which provides:

“(a) Except as otherwise provided by an Act of Assembly or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in
“(1) the county where its registered office or principal place of business is located;
“(2) a county where it regularly conducts business;
“(3) the county where the cause of action arose; or
“(4) a county where a transaction or occurrence took place out of which the cause of action arose.”

Here, plaintiffs initially claim that this motion judge erred because there was a lack of a meaningful record. The relevant facts to consider regarding venue depend on whether a particular defendant is an individual or a corporation. From the record, it appears that defendant Constantino resides and is employed in Bucks County by defendant CVS A, which has its principal place of business in Bucks County. Both defendants were served with the complaint in Bucks County. The alleged medical malpractice action or cause of action occurred in Bucks County; that is, plaintiff-wife was treated and operated by defendants only in the Langhorne, Bucks County office. Defendant CVS A avers that neither it nor its employees conduct business in Philadelphia; that it does not advertise in Philadelphia, care for patients in Philadelphia, own property or a facility to see patients in Philadelphia, employ anyone from Philadelphia County, and/or have any professional affiliations in Philadelphia. Thus, based on the rules of civil procedure and case law, clearly all material and relevant facts were considered when sustaining defendants’ preliminary objections and transferring this matter to Bucks County.

Further, it is not always necessary to conduct a fact-finding inquiry or allow discovery prior to ruling on preliminary objections. If an issue of fact is raised, a court must rely on facts raised by depositions or otherwise. See Pa.R.C.P. 1028(c)(2); Hamre v. Resnick, 337 Pa. Super. 119, 120 n.2, 486 A.2d 510 n.2 (1984), wherein the court held that relying only on the pleadings of record was a correct procedure in many cases, citing Matter of D.L.S. and J.L.S., 278 Pa. Super. 446, 420 A.2d 625 (1980), and McCrory v. Abraham, 441 Pa. Super. 258, 657 A.2d 499 (1995), which held that where other undisputed facts provide a sufficient and reliable basis for the trial court’s decision, neither deposition testimony nor a hearing is required. Here, this motion judge opines that no error was committed in refusing to allow limited depositions on the issue of venue.

Next, plaintiffs contend that defendant CVSA regularly conducts business in Philadelphia County, and rely on a previous lawsuit filed in Philadelphia County at a time when defendant CVSA had an office in Philadelphia. Defendant CVSA admits to the lawsuit which occurred in November of 1996. However, defendant CVSA asserts that at all times relevant to this lawsuit it had no office listing in Philadelphia County, and had an office only in Langhome, Bucks County, Pennsylvania. In this motion judge’s opinion, this previous lawsuit does not perpetually grant venue in Philadelphia County in actions brought against defendant CVSA. Venue must be determined on a case-by-case basis. Kubik, supra; Purcell v. Bryn Mawr Hospital, 525 Pa. 237, 579 A.2d 1282 (1990). Presently and relying on the fact that defendant CVSA’s principle and only office is located in Bucks County, venue does not lie in Philadelphia County. In addition, a lower court’s determination that a corporation was not regularly conducting business in a particular county will not be overturned when such conclusion is a reasonable one in view of the facts. Panzano v. Lower Bucks Hospital, 395 Pa. Super. 480, 482, 577 A.2d 644 (1990). Thus, in this motion judge’s opinion, plaintiffs’ argument is without merit.

Plaintiffs also contend that this motion judge failed to recognize the ties this case has with Philadelphia and argue that this motion judge should have considered plaintiff-wife’s subsequent treatment in Philadelphia County, even though the physicians involved in the subsequent treatment were not sued in this action. In support of their position, plaintiffs rely on the matters of Hoose v. Jefferson Home Health Care Inc., 754 A.2d 1 (Pa. Super. 2000), appeal denied, 564 Pa. 734, 766 A.2d 1249 (2001), and Cooper v. Nationwide Mutual Insurance Co., 761 A.2d 162 (Pa. Super. 2000), and the court’s holding that it was improper to grant a motion to transfer venue, considering, among other factors, that the plaintiff received care and treatment in Philadelphia County relevant to the underlying medical condition. Hoose, supra at 4; Cooper, supra at 165. Plaintiffs argue that the facts in those cases are similar to the facts in this instant case in that all treatment pertinent to the alleged malpractice was rendered outside Philadelphia County. Here, because defendant Constantino allegedly did not perform the initial laparoscopic surgery correctly, plaintiff-wife was compelled to seek additional medical care and found it in Philadelphia County. Based on these circumstances, plaintiffs reason that venue should not have been transferred because of the medical treatment received from other physicians in Philadelphia County.

In this motion judge’s opinion, plaintiffs’ reliance on Hoose and Cooper is misplaced. In Hoose and Cooper, the appellate court reversed the lower courts’ orders transferring venue on the basis of the doctrine of forum non conveniens, not on arguments of improper venue, which is the issue here. The rules of civil procedure provide criteria for transfers of venue depending on the basis for the request.

Specifically, Pa.R.C.P. 1006(d)(1) allows for a transfer of venue based on the doctrine of forum non conveniens, when:

“For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.” (emphasis added)

This motion judge is acutely aware of the distinction between preliminary objections challenging venue filed pursuant to Rule 1028(a)(1) and Rule 1006(a), and a petition to transfer venue based on forum non conveniens filed pursuant to Rule 1006(d)(1). Rule 1006(d) cannot apply to a case where venue is wrongly laid; this is distinctly regulated by Rule 1006(a). U.S. Cold Storage Corp. v. City of Philadelphia, 431 Pa. 411, 419, 246 A.2d 386, 390 (1968). Here, defendants are not seeking a change of venue based on forum non conveniens. This motion judge was not asked to consider such factors as: the relative ease of access to sources of proof, availability of compulsory process for the attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, the possibility of viewing the premises and enforceability of the order. Scribner v. Mack Trucks, 427 Pa. Super. 71, 628 A.2d 435 (1993), appeal denied, 537 Pa. 623, 641 A.2d 588 (1994). Rather, this motion judge was asked to decide whether venue is proper in Philadelphia County. Based on the evidence of record and analysis provided, it is not.

Plaintiffs next argue that it was improper for this motion judge to order plaintiffs to pay the costs of transfer, since defendants did not seek such relief. Pa.R.C.P. 1006(e) provides for the costs of transfer of a case to another county to be paid for by the plaintiff:

“If a preliminary objection to venue is sustained and there is a county of proper venue within the state the action shall not be dismissed but shall be transferred to the appropriate court of that county. The costs and fees for transfer and removal of the record shall be paid by the plaintiff.” (emphasis added)

In this motion judge’s opinion, defendants need not have specifically requested relief for the costs of transfer. The plain language of the rule and the effect of sustaining preliminary objections as to venue, require it.

Plaintiffs finally argue that this motion judge erred in overruling plaintiffs’ preliminary objections to defendants’ preliminary objections where defendants offered no reasonable explanation as to the untimeliness of their (defendants) preliminary objections, and where defendants’ preliminary objections were not endorsed with a notice to plead. As stated, defendants were served with the complaint on January 29, 2001. Preliminary objections were filed on March 16, 2001, apparently 26 days late. See Pa.R.C.P. 1026(a). Notwithstanding, this motion judge opines no error was committed.

In Ambrose v. Cross Creek Condominiums, 412 Pa. Super. 1, 602 A.2d 864 (1992), the Superior Court held that the trial court did not abuse its discretion in refusing to strike a defendant’s preliminary objections, based on their untimely filing where delay was brief, plaintiffs had not acted to take default judgment, and plaintiffs did not suggest that they were prejudiced by the brief delay in filing defendant’s responsive pleading. The Ambrose court stated:

“This court has recognized that it is within the sound discretion of the trial court to permit a late filing of a pleading where the opposing party will not be prejudiced and justice so requires. Boarts v. McCord, 354 Pa. Super. 96, 100-101, 511 A.2d 204, 207 (1986); Louis v. Clark, 227 Pa. Super. 547, 550, 323 A.2d 298, 299-300 (1974). Where possible, the rules of civil procedure, including filing rules, should be liberally construed in order to effect equitable results. Pa.R.C.P. 126; Boarts v. McCord, 354 Pa. Super, at 101, 511 A. 2d at 207.” Ambrose at 10, 602 A.2d at 868; see also, Gale v. Mercy Catholic Medical Center Eastwick Inc., 698 A.2d 647 (Pa. Super. 1997), appeal denied, 564 Pa. 722, 716 A.2d 1249 (1998); Pa.R.C.P. 1026(a).

Further, it has long been the law that the rule requiring the filing of a responsive pleading within 20 days is not absolute. Specifically, Fisher v. Hill, 368 Pa. 53, 57, 81 A.2d 860, 863 (1951), held that Pa.R.C.P. 1026 provides that a pleading shall be filed within 20 days after service of a preceding pleading. This rule is not mandatory but permissive. We have held that late pleadings may be filed “if the opposite party is not prejudiced and justice requires. Much must be left to the discretion of the lower court.” (emphasis added)

Here, plaintiffs neither took a default judgment nor did they convincingly argue any prejudice they suffered by defendants’ failure to file a responsive pleading within 20 days, as required by Pa.R.C.P. 1026(a). Based on the rules, case law and procedural history of this case, this motion judge opines that an abuse of discretion did not occur.

Plaintiffs argue that they were prejudiced by defendants’ untimely filing of preliminary objections. They contend that by letter dated March 7, 2001, counsel for defendants requested additional time to file a response to the complaint, to which plaintiffs acquiesced but specified that any extension would be to answer only. Plaintiffs’ letter dated March 14, 2001, stated as follows:

“Enclosed please find the preliminary objections, on behalf of defendants, George Constantino M.D. and C.V. Surgical Associates P.C., with regard to the above-captioned action, filed with the court this date. Please be advised that your answer is due within 30 days of the date of the filing of this motion, or, April 16, 2001.”

This situation is similar to Ambrose where defense counsel similarly requested an extension of time by letter. There, plaintiffs’ counsel responded the following:

“I am granting defendant an extension of two weeks after your receipt of the complaint to file an answer .... Please note that the extension of time requested in your letter and by phone was only to answer the complaint, and that is the only extension I have granted.”

The Ambrose court found that no agreement permitting a late response was reached, even when “an exchange of letters had taken place.” The court added:

“At the very least, the language contained in defendant’s request for extension of time is unacceptably ambiguous: it can either refer to the right to file an answer (responsive pleading to include preliminary objections), or it could refer to the limited right to file an answer only. In any event, it is clear that counsel for the plaintiffs only granted an extension of time in which to file an answer and specifically refused to grant an extension for the filing of any other pleading. Clearly, mutuality of assent is lacking. Counsel for the defendant’s request for ‘an extension of time to answer the complaint’ was denied by counsel for plaintiffs. Even though there was an exchange of letters, no agreement was reached. Johnson, 524 Pa. at 215, 570 A.2d at 74; Burkett v. Allstate Insurance Co., 368 Pa. Super. 600, 608-609, 534 A.2d 819, 824 (1987).” Ambrose, supra at 9, 602 A.2d at 867.

Instantly, in asking for an extension of time to file a response, it is obvious that defendants did not accept the terms of plaintiffs’ counsel’s letter. Thus, there was not a mutual consent as to what exactly (an answer or a response) the extension of time pertained.

Likewise, the statement by plaintiffs that the late filing of preliminary objections is prejudicial to the plaintiffs and causes the plaintiffs a substantial diminution in their ability to present factual information in the event of trial, is vague. This is the commencement of the civil action and what prejudice or diminution in plaintiffs’ ability to present the facts of their case by the transfer of venue is lost to this motion judge.

Finally, as to plaintiffs’ argument that their preliminary objections should have been sustained because defendants failure to provide a notice to plead, Rule 1026(a) provides that the effect of not including a notice to plead is that the opposing party is not required to respond. Specifically, the rule provides that “no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead.” Pa.R.C.R 1026. Thus, the failure to attach a notice to plead with defendants’ preliminary objections to venue had the effect of not requiring plaintiffs to plead. In this regard, since plaintiffs did file preliminary objections and a response to defendants’ preliminary objections, no prejudice was suffered.

CONCLUSION

Based on the foregoing analysis, this motion judge opines that no errors were committed in sustaining defendants’ preliminary objection and in transferring venue to Bucks County. This motion judge respectfully recommends that plaintiffs’ appeal be dismissed, and said transferring order be affirmed.

      . The corrective surgery, performed by a physician who is not a party to this litigation, occurred in a Philadelphia medical facility.

      . A copy was not provided by plaintiff.


author: CULLEN, J.,

text:
    Spotts v. Small

      C.P. of Lancaster County,
    no. CI-98-00700.

      John J. Speicher, for plaintiff.

      James W. Saxton, for defendant Schantz.

      Wiley P. Parker, for defendants Small and Cardiovascular, et al.

      Amanda L. Smith, for PA office of Attorney General.

      Robert B. Hoffman, for Medical Society of PA and Lancaster.
    April 2, 2003
   CULLEN, J.,

Presently pending before the court is the motion of defendant, Beverly Schantz D.O., to preclude the testimony of plaintiff’s proposed expert witness, Henrietta Pagan Athole Graeme McNeil Jacobi, pursuant to the Medical Care Availability and Reduction of Error Act. Also pending is plaintiff’s challenge to the constitutionality of section 512 of the MCARE Act.

The procedural and factual background of this matter is uncomplicated.

In early December 1995, Charles Spotts suffered an acute myocardial infarction. He was transferred from Lock Haven Hospital to Lancaster General Hospital where he underwent a coronary angioplasty and stent placement in his left anterior descending coronary artery. During the procedure, he developed hypertension and syncope which prevented the placement of a second stent. His right coronary artery remained totally occluded.

Mr. Spotts was discharged from the hospital on December 10,1995, under the care of Roy Small M.D., and Cardiovascular Associates of Lancaster Ltd.

On January 9,1996, Mr. Spotts slipped on an icy sidewalk and suffered a tom medial meniscus in his left knee.

On February 23, 1996, Mr. Spotts underwent surgery to repair the tom medial meniscus. Beverly Schantz D.O., was the anesthesiologist assigned for this surgical procedure. During the surgery, Mr. Spotts suffered a myocardial infarction and died shortly afterwards.

On January 20, 1998, plaintiff, Vickie Spotts, Mr. Spotts’ widow and administratrix of his estate, commenced a medical malpractice action against Dr. Small, Cardiovascular Associates of Lancaster Ltd., Dr. Schantz, Alfred Cooke Jr. M.D., the orthopedic surgeon, and Lancaster General Hospital. The defendants filed answers to the complaint denying liability, and the parties undertook discovery.

In the course of discovery, plaintiff identified Dr. Henrietta Pagan Athole Graeme McNeil Jacobi as her expert witness in the area of anesthesiology who would testify with respect to Dr. Schantz’ deviation from the standard of care with respect to her treatment of Mr. Spotts.

On July 9, 2002, Dr. Schantz filed a motion to preclude Dr. Jacobi’s testimony and opinions on the ground that she did not meet the requirements to render an expert medical opinion specified in section 512 of the MCARE Act. On July 12, 2002, a similar motion was filed on behalf of Dr. Small and Cardiovascular Associates of Lancaster Ltd.

Whether Dr. Jacobi would testify as an expert witness at trial was discussed at the pretrial conference on August 7, 2002. On September 5, 2002, plaintiff’s counsel notified the court and opposing counsel that he still intended to call Dr. Jacobi as an expert witness and requested the court address the pending motions in limine. Following further consultation with counsel, a hearing on the motion was scheduled for November 21, 2002.

On November 20,2002, plaintiff notified the attorney general pursuant to Rule 235 of the Pennsylvania Rules of Civil Procedure that she was challenging the constitutionality of section 512 of the MCARE Act.

The court held an evidentiary hearing on the motion in limine on November 21, 2002.

On January 27, 2003, the court heard oral argument on plaintiff’s challenge to the constitutionality of section 512 of the MCARE Act.

Dr. Jacobi has been an anesthesiologist since 1955. (N.T. November 21, 2002, p. 14.) She is currently licensed in Pennsylvania and California and has the equivalent of board certification in her field. (Id. at 16-17.) Prior to 1993, she had an active clinical and academic career. (Plaintiff’s exhibit 1.)

As a result of an automobile accident in 1993, Dr. Jacobi is disabled and no longer able to practice anesthesiology. (N.T. November 21, 2002, pp. 16, 47-48; defendant’s motion to preclude testimony, exhibit E, p. 107.) At that time, she was Professor of Anesthesiology at the Medical College of Pennsylvania (plaintiff’s exhibit 1) and is now professor emerita at that institution. (Id., N.T. November 21, 2002, pp. 21, 60-61).

Dr. Jacobi has not been in an operating room as a practicing physician since 1993. (Id. at 36; defendant’s motion to preclude testimony, exhibit E, p. 139). She has no teaching responsibilities as professor emerita at Drexel University and has offered only one two-hour lecture in anesthesia in a medical setting since her retirement due to disability. (N.T. November 21,2002, pp. 21-22,34-36; defendant’s motion to preclude testimony, exhibit E, p. 121.) She does complete the continuing education requirements necessary to maintain her license (N.T. November 21, 2002, pp. 18-20, 29-30) subscribes to professional journals and purchases textbooks in the field of anesthesia. (Id. at 21, 29.)

Dr. Jacobi ceased to act as a reviewer for professional journals in 1993 and all of her research and grants and publications occurred prior to her retirement. (Plaintiff’s exhibit 1.)

In April 2000, Dr. Jacobi testified that since retirement all of her professional income has come from her services as an expert witness. (Defandant’s motion to preclude testimony, exhibit E, p. 127.) Dr. Jacobi further testified at the hearing on November 21, 2002, that she would be providing two lectures in her field at Drexel University in the near future, one to members of the otorhinolaryngology department and one to members of the department of orthopedics. (N.T. November 21,2002, pp. 22, 24-25, 33-34; defendant’s exhibit 1 and 2.)

Effective October 4, 2002, Dr. Jacobi was appointed clinical associate professor in the department of medicine at the University of Medicine & Dentistry of New Jersey — School of Osteopathic Medicine. (Id. at 26-27, 39-40; defendant’s exhibit 4.) At the time of the hearing in November 2002, Dr. Jacobi’s duties in this position had not yet been defined although it was her understanding that initially in 2003 she would be lecturing to interns. (Id. at 26-28, 47.)

DISCUSSION

Section 512 of the MCARE Act effective May 19, 2002, provides as follows:

“Section 1303.512. Expert qualifications
“(a) General rule. — No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.
“(b) Medical testimony. — An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications:
“(1) Possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia.
“(2) Be engaged in or retired within the previous five years from active clinical practice or teaching.
“Provided, however, the court may waive the requirements of this subsection for an expert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience.
“(c) Standard of care. — In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician’s standard of care also must meet the following qualifications:
“(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.
“(2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e).
“(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).
“(d) Care outside specialty. — A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that:
“(1) the expert is trained in the diagnosis or treatment of the condition, as applicable; and
“(2) the defendant physician provided care for that condition and such care was not within the physician’s specialty or competence.
“(e) Otherwise adequate training, experience and knowledge. — A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period.” 40 P.S. §1303.512.

In addition to the general requirements enumerated in section 512(a) which must be met by any witness offering expert testimony in a medical professional liability action, a witness such as Dr. Jacobi who will offer an opinion on the standard of care must also meet the additional qualifications specified in sections 512(b) and (c). There is no allegation that Dr. Jacobi fails to meet the qualifications listed in section 512(c). Accordingly, the focus of the inquiry will be on the requirements of section 512(b).

In order to render an opinion with respect to the standard of care, section 512(b) mandates that the witness must (1) possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia, and (2) be engaged in or retired within the previous five years from active clinical practice or teaching. To determine whether Dr. Jacobi meets these criteria in this case, the court must first decide at what point in time these qualifications must be met.

The statute is silent with respect to the point from which the five-year period specified in section 512 (b)(2) is to be calculated.

Dr. Schantz argues that the proposed expert witness must meet the requirements of section 512 as of the time of trial. As an alternative, she posits that at the earliest, the relevant point should be when the expert witness submits a report which will be the basis for trial testimony. Plaintiff contends that the relevant time at which to assess the expert witness’ qualifications is the time of the occurrence of the events about which the witness will render an opinion, i.e., the time of the deviation from the standard of care.

After considering the arguments of the parties, the court concludes that to be qualified to render an opinion with respect to the standard of care, the witness must be engaged in or retired within the previous five years from active clinical practice or teaching calculated from the time of the alleged deviation from the standard of care which is the basis of the medical professional liability action against the physician.

The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(a). When the words of the statute are not explicit, the intent of the legislature may be ascertained by considering (1) the occasion and necessity for the statute, (2) the circumstances under which it was enacted, (3) the mischief to be remedied, (4) the object to be attained, (5) the former law, if any, including other statutes upon the same or similar subjects, (6) the consequences of a particular interpretation, (7) the contemporaneous legislative history, and (8) legislative and administrative interpretations of such statute. 1 Pa.C.S. §1921(c)(l)-(8) It is to be presumed that the legislature does not intend a result that is absurd, impossible of execution or unreasonable. 1 Pa.C.S. §1922(1).

The MCARE Act does not set forth explicitly the legislature’s intention in enacting section 512, and the available legislative history does not provide reliable guidance.Based upon the language employed, the purpose of section 512 of the MCARE Act is to establish a more stringent standard for the admission of expert medical testimony in medical malpractice actions.

In order to establish a prima facie case of medical malpractice, the plaintiff must present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the defendant physician deviated from good and acceptable medical standards, and that such deviation was the legal cause of the plaintiff’s harm. Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990). The applicable standard of care is that which existed at the time of the event or events giving rise to the plaintiff’s claim. Maurer v. Trustees of the University of Pennsylvania, 418 Pa. Super. 510, 614 A.2d 754 (1992). The MCARE Act does not change existing law. Section 512(c)(1) specifically provides that an expert testifying as to a physician’s standard of care must be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.

Viewed against this background, and in the absence of contrary disclosed legislative intent, section 512 (b)(2) should be interpreted as requiring an expert medical witness to be engaged in, or retired within the previous five years from active clinical practice or teaching as of the time of the alleged breach of the standard of care. The fact that the General Assembly did not use the phrase “as of the time of the alleged breach of the standard of care” in section 512(b)(2) as it did in section 512(c)(1) which addresses the same subject matter does not prohibit the court from construing the two sections consistently. See 1 Pa.C.S. §1932.

In addition to the language and structure of the statute, several other considerations lend support to the court’s construction of section 512(b)(2).

A physician in active clinical practice or teaching at the time of or within five years prior to the alleged breach of the standard of care is likely to have more familiarity and experience with the applicable standard of care than a witness who may meet these requirements as of the time of trial. This is of particular significance in medical malpractice cases where a substantial period of time may elapse between the time of the injury and the time of trial. In the present case, for example, the alleged breach of the standard of care occurred in February 1996, and trial is now scheduled for June 2003.

The time of the alleged breach of the standard of care, unlike the time of the filing of an expert report or the time of trial, is a fixed point and not subject to change over the course of the litigation. Using the time of the breach of the standard of care as a focal point avoids the problem which could otherwise arise where an expert who met the statutory requirements as of the time of the alleged negligent conduct and who provided an expert report before retirement and was prepared to testify at trial could become “unqualified” if the trial were postponed to a date more than five years after his retirement. Further, calculating the five-year period from the time of trial instead of the time of the alleged breach of the standard of care could have the unintended consequence of preventing a retired defendant physician from presenting his own expert testimony in his defense at trial as he would be entitled to do. See Katz v. St. Mary Hospital, 2003 Pa. Super. 37; Neal by Neal v. Lu, 365 Pa. Super. 464, 530 A.2d 103 (1987).

The few statutes from other jurisdictions dealing with the qualifications of expert witnesses cited by Dr. Schantz in her brief are consistent with the court’s interpretation. Unlike section 512, the time period in which the expert witness must be engaged in practice or teaching in each of these statutes is defined specifically, and in each instance it is done with reference to the time of the alleged negligent act. Ala. Code §6-5- 548(b)(3), (c)(4) (during the year preceding the date that the alleged breach of the standard of care occurred); N.C. Evid. Code §8C-1, Rule 702 (during the year immediately preceding the date of the occurrence that is the basis for the action); M.C.L.A. §600.2169 (l)(a)-(c) (during the year preceding the occurrence; and if a specialist, at the time of the occurrence); Tex. Rev. Civ. Stat. Ann. Art. 4590c, § 14.01(a)(1) (at the time such testimony is given or was practicing medicine at the time the claim arose).

The court finds the arguments for calculating the five-year period from the time of trial unpersuasive. While section 512 does refer to expert medical “testimony” and an expert “testifying,” the thrust of the statutory requirements is directed to the reliability of this evidence, not the time at which it may be presented to the fact-finder. The argument that the five-year period should be determined with reference to the time of trial because the expert will have the benefit of the most up-to-date information on the most current medicine and science and have the most current experience and knowledge is fatally flawed. The most up-to-date information and most current medicine are irrelevant to a determination of whether the defendant physician has breached the applicable standard of care. The standard of care is determined as of the time of the alleged breach, not the time of trial. Maurer v. Trustees of the University of Pennsylvania, 418 Pa. Super. 510, 614 A.2d 754 (1992) (insufficient evidence to establish the standard of care with respect to the use of Didronel on brain-injured patients in 1981, the time of the alleged negligent conduct).

Dr. Schantz’ argument also fails to address adequately the consequences of her interpretation of section 512, some of which have been previously noted. The most serious consequence is that the competence of an expert witness to testify could be determined by a factor as fluid and arbitrary as the trial date which has no relationship whatsoever to the education, training, knowledge and experience of the witness, the applicable standard of care or the substance of the medical expert’s opinion.

Dr. Schantz did not present any argument in support of her alternate position that the five-year period is to be calculated from the date the expert witness files a report. The court can find no support for this alternate position in the statute or any other source.

The breach of the standard of care at issue in this case is alleged to have occurred in February 1996. Dr. Jacobi retired from active teaching in 1993 which is within the five-year period provided in section 512(b)(2). The court finds, therefore, that she satisfies the requirements of the MCARE Act with respect to the challenge made by Dr. Schantz. Accordingly, the motion to preclude the expert testimony of Dr. Jacobi will be denied.

Since the court has determined that an expert medical witness must meet the requirements of section 512(b)(2) as of the time of the alleged breach of the standard of care, it is not necessary to determine whether Dr. Jacobi is engaged in active clinical practice or teaching as of the time of trial. The hearing on Dr. Jacobi’s qualifications was held in November 2002, but trial is not scheduled until June 2003, seven months after the hearing. In order to provide the parties with an adequate record for purposes of appellate review, if necessary, regarding the court’s interpretation of section 512(b)(2), plaintiff will be provided with the opportunity prior to trial to supplement the record with respect to Dr. Jacobi’s teaching schedule since the hearing.

Finally, the court concludes that it would be inappropriate and unnecessary to address plaintiff’s challenge to the constitutionality of section 512 of the MCARE Act since the matter in dispute has been decided on nonconstitutional grounds. In re Fiori, 543 Pa. 592, 673 A.2d 905 (1996) (courts should avoid constitutional issues when the issue at hand may be decided upon other grounds). Any discussion of the constitutional issue raised would constitute an unwarranted advisory opinion.

Therefore, the court enters the following:

ORDER

And now, April 2, 2003, defendant Beverly Schantz D.O.’s motion to preclude the testimony and opinions of plaintiff’s proposed expert witness, Athole Jacobi MD. pursuant to the Medical Care Availability and Reduction of Error Act is denied.

Plaintiff’s challenge to the constitutionality of section 512 of the MCARE Act is dismissed as moot.

      .40P.S. §1303.101 etseq.

      . Dr. Cooke and Lancaster General Hospital were subsequently dismissed as defendants in this action.

      .40P.S. §1303.512.

      . The motion was filed on behalf of Dr. Small and Cardiovascular Associates of Lancaster Ltd., because Dr. Jacobi had expressed certain opinions in her report with respect to the care provided to Mr. Spotts by the cardiologist. (Defendant Beverly Schantz D.O.’s, motion to preclude the testimony and opinions of plaintiff’s proposed expert witness, Athole Jacobi M.D., pursuant to the Medical Care Availability and Reduction of Error Act, Exhibit A) (hereafter defendant’s motion to preclude testimony). The motion on behalf of these defendants was not pursued because plaintiff’s counsel had represented to the court and opposing counsel that Dr. Jacobi would not be asked to express any opinion in the area of cardiology at trial. (N.T. November 21, 2002, pp. 4-5.)

      . In addition to briefs submitted by the parties, the attorney general filed a brief in support of the constitutionality of section 512 of the MCARE Act as did the Pennsylvania Medical Society and Lancaster County Medical Society.

      . Exhibit E of defendant’s motion to preclude testimony is a transcript of a portion of Dr. Jacobi’s April 2000 trial testimony in Curley v. Durkin, No. 1998-1710, Pa.C. Centre Cty. (N.T. November 21, 2002, pp. 13-14, 64.)

      . The former Medical College of Pennsylvania is now part of Drexel University.

      . Dr. Jacobi has been a speaker at three legal seminars since her retirement as well as speaking on health policy on one occasion. (N.T. November 21, 2002, pp. 22, 35; plaintiff’s exhibit 1; defendant’s motion to preclude testimony, exhibit E, pp. 127-28, 136-38.)

      . Dr. Jacobi testified that she will be a clinical associate professor in the department of medicine because the School of Osteopathic Medicine does not have an anesthesia department. (N.T. November 21,2002, pp. 40, 46.)

      . The testimony reflects, and Dr. Schantz does not dispute, that Dr. Jacobi is currently licensed to practice medicine in Pennsylvania and California and had been continuously licensed since 1993 when she retired due to her disability. (N.T. November 21, 2002, p. 16.)

      . Implicit in the statute is a recognition that a witness could hold an unrestricted license to practice medicine and still not have engaged in active clinical practice or teaching for a period in excess of five years. Since Dr. Jacobi is and has been licensed at all relevant times, the court need not decide whether the witness must be licensed at the time of the occurrence, the time of the report, or the time of trial.

      . Legislators’ remarks with respect to 1802 of 2001 provided no guidance. See Pa. Legis. Journal-House, pp. 88-140 (January 29,2002); Pa. Legis. Journal-House, pp. 297-323 (February 13,2002); Pa. Legis. Journal-Senate, pp. 1453-54 (March 13, 2002); Pa. Legis. Journal-House, pp. 407-409 (March 13, 2002).

      . There is an exception to the general rule that expert testimony is required to establish a prima facie case in a medical malpractice action. Expert testimony is not required when the matter in dispute is so simple and the lack of skill or want of care so obvious as to be comprehensible by lay persons. Brophy v. Brizuela, 358 Pa. Super. 400, 517 A.2d 1293 (1986).

      . While one may argue that five years is too long a period of time to be removed from active clinical practice or teaching, this is a policy determination to be made by the legislature and not by the courts.

      . Section 512(a) provides that, “No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person . . . fulfills the additional qualifications set forth in this section as applicable.” 40 P.S. §1303.512(a). Section 512 applies to all expert medical witnesses whether testifying for the plaintiff or the defendant, and there is no exception for a witness who is also a party. Had Dr. Schantz retired completely within a week after the filing of the complaint in January 1998, she would not be qualified under her interpretation of the statute to provide expert medical testimony in her own defense at trial. The court cannot presume that the legislature intended such an absurd and unreasonable result.

      . See Leatherwood v. Ehlinger, 151 N.C. App. 15, 564 S.E.2d 883 (2002).

      . Kansas requires that an expert witness in a medical malpractice case spend 50 percent of the expert’s professional time in actual clinical practice within the two-year period preceding the incident giving rise to the action. K.S.A. 60-3412. Endorfv. Bohlander, 995 P.2d 896 (Kan. App. 2000).

      . The court does not intend to comment upon the ad hominem arguments presented.