author: DiVITO, J.,

text:
    Clear Channel Outdoor, Inc. v. Philadelphia Zoning Board of Adjustment

      Richard C. DeMarco, for appellant.

      Kristin Kathryn Bray, Andrew S. Ross, William J. Leonard and Zachary S. Davis, for appellees.
    July 28, 2010
   DiVITO, J.,

This is an appeal by Clear Channel Outdoor Inc. (appellant) from the court’s order entered on March 9, 2010 denying the appellant’s petition for leave to file a nunc pro tunc appeal from the decisions of the City of Philadelphia and the Zoning Board of Adjustment (board). For the reasons that follow, the order by the court denying the petition is affirmed.

The Southeastern Pennsylvania Transportation Authority (SEPTA) is the fee owner of properties located at 4301-15 Wissahickon Avenue Unit P, and 4300 Clarissa Street and 4300 R Clarissa Street, where the appellant holds month-to-month leases to operate three outdoor advertising signs on the premises. SEPTA and All vision LLC applied to the Department of Licenses and Inspections to remove the signs at all three locations and replace them with digital billboards, the application of which was rejected on May, 8 2009 for not complying with the Philadelphia Zoning Code. SEPTA filed an appeal to be granted the appropriate zoning variances with the zoning board on June 6, 2009.

The hearing for the zoning variances was scheduled for July 1, 2009, and, approximately 12 days before the hearing, SEPTA posted notice on its properties where the billboards were located of when and where the zoning hearings would be held. Counsel for SEPTA and .Allvision LLC both attended the hearing before the board and entered their appearances. SEPTA entered the deeds for the properties demonstrating that it was the sole owner of the properties. No representatives for the appellants attended the hearing nor entered an appearance. At the request of the Society Created for the Reduction of Urban Blight (SCRUB), the board held the record open until July 15, 2009 so that SCRUB could submit supplementary materials protesting the zoning variance.

At some point between July 1,2009 and July 14,2010 the appellant became aware that a hearing had been held in the matter of the SEPTA properties where it leased advertising billboards. On July 14, 2010 the appellant submitted documents to the board, sending copies to SEPTA, which it titled “omnibus procedural motion to dismiss and/or stay appeals and substantive objections to the grant of relief ” (omnibus), in which it claimed that it was the owner of the billboards and of the permits for them and that the zoning variances should be denied. The appellant did not submit an actual appearance to the board. On July 15, 2009 SEPTA responded to the omnibus stating that since it was the sole owner of the properties under consideration by the board and because the agreement between the appellant and SEPTA was a private licensing agreement, that it had no duty to notify the appellant and that the board had no jurisdiction to decide any issues based upon the agreement.

After the submission of the omnibus, a paralegal for the appellant’s counsel, Rosearme Uhl, visited the board’s offices multiple times to inquire as to whether a decision had been reached. Ms. Uhl stated that she was never made aware of any decision. SEPTA states that an assistant to its counsel, Susan Mariano, also visited the board’s offices multiple times to inquire of whether a decision had been reached. SEPTA states that Ms. Mariano reviewed the board files for the three appeals on multiple occasions and that, while there were appearance slips for SEPTA and SCRUB, none existed for the appellant.

On September 8, 2009 the board granted the zoning variances and notified, on the same day, SEPTA and SCRUB of the decision. From that date there was a 30-day period in which to file an appeal with the board. On or about October 26,2009 appellant learned of the decision and contacted the board and stated that it wished to appeal the decision but was rebuffed. On or about October 29,2009 the appellant appealed to the Court of Common Pleas, which was refused as untimely by the prothonotary. The appellant then filed a nunc pro tunc petition to this court on November 6, 2009, which was subsequently denied on March 9, 2010.

Appellant now appeals from the denial of its nunc pro tunc on the basis of an alleged breakdown in procedure by the board, claiming it submitted a timely appearance and was unjustly deprived of timely notification of the board’s decision. Appellant further claims that the board attempted to change appearance procedures after the fact and that the court erred in not finding that the appellant was a “joint owner” under the rules and regulations of the board and, thus, that it should have been notified of the hearing. Finally appellant claims that there was a clerical error where the board left files in a meeting room and, thus, the documents were not included in the board’s file leading to the appellant never being notified of the board’s decision.

Whether or not a nunc pro tunc appeal should be granted is a matter at the court’s discretion. Perin v. Gochnauer, 173 Pa. Super. 609, 612, 98 A.2d 755, 756 (1953). A nunc pro tunc appeal based upon an untimely filing is proper only if there was fraud or a breakdown in the procedural process. Sofronski v. Civil Service Commission, 695 A.2d 921, 924 (Pa. Commw. 1997). Based upon the regulations governing practice before the Zoning Board of Adjustment of the City of Philadelphia (zoning regulations) submitted into evidence by the appellant as exhibit F and the Philadelphia Code, there was no breakdown of process as alleged in the appeal. When SEPTA and Allvision LLC sought a zoning variance with the board all evidence shows that they properly posted notice of the hearings at the locations of the billboards, thus, the appellants had appropriate notice of the hearing based upon regulations.

The appellant posits, however, that the hearing was improperly held, claiming that they are the real property owners of the actual billboard and that all relevant parties were not present at the hearing. While it is correct that the appellant has some property interest in the billboards, this does not amount to the level of ownership over which the board has jurisdiction. In the leasing agreement between SEPTA and the appellant, the copy of the agreement marked by SEPTA as “exhibit A” clearly stipulates that while the licensee is in fact the owner of “all structures ... under this license” the agreement itself can be terminated at any time with 30 days notice, at which point the appellant would have to remove the structures at its own cost. Though SEPTA has not of yet, apparently, given a termination notice to the appellant, nothing in the agreement suggest that it cannot petition for zoning variances in anticipation of a future termination of the agreement, at which time the appellant would be contractually obligated to remove the existing billboards with its own funds.

The zoning regulations, section II, (6) regarding hearings clearly state that an applicant, here SEPTA, must submit proof of its legal interest in the property, which both SEPTA and the board state was properly delivered in the form of deeds showing SEPTA as sole owner of the properties for which the zoning variances were requested. If the applicant is a joint owner or joint lessee of the properties then there must be evidence of the petitioner having the authority of all owners and lessees. This was unnecessary here as SEPTA is the sole owner of the properties.

The appellant is neither a joint-owner nor joint-lessee of the real properties at issue, only of the billboards. The zoning variance is for the real property. Any contract issues involving the agreement for the billboard lease was purely between SEPTA and the appellant as evidenced by the zoning regulations, section III (14) which explicitly states, “A decision of the zoning board shall relate only to the zoning law and shall not be construed to apply to any other law, except insofar as authorized by statute or ordinance.”

The matter of ownership of the billboards located on the real properties where the signs are located is a contractual matter between SEPTA and the appellant, as seen by the agreement between those parties. SEPTA applied for zoning variances for its real property, of which it was the sole owner and which the board properly heard. As such, there were no procedural lapses when the appellant was not notified and the hearing was held in its absence. The appellant provided no evidence to demonstrate that, “as authorized by statute or ordinance,” the board would have any power over this type of contractual agreement. The appellant’s legal issues, if existing at all, are a contractual matter between it and SEPTA, thus, placing it outside the purview of the board.

Once the appellant learned of the hearing after the fact, it claims that several more procedural lapses happened because of errors committed by the board and that the board attempted to institute new rules for appearances which led to the appellant not being notified of the decision. The court finds these claims to be equally unpersuasive. It is granted that the appellant did on or about July 14, 2009 submit its omnibus to the board claiming that the hearing was held in error. The appellant, however, seems to assume that this submission of its omnibus constitutes an appearance before the board. This assumption is incorrect.

In order to be properly entered as a party in a zoning board case, a corporation “shall appear in person represented by an attorney-at-law authorized to practice within the Commonwealth.” Phila. Cons. Regulations ¶3^4-11-11(c). Though the appellant submitted its omnibus to the board it makes no claims that it ever actually appeared before the board or had an attorney go to the board offices in order to attempt to submit its appearance while the record was still open. Once the board enters a decision, it must notify the parties “who have properly entered an appearance in the case.” Phila. Code §14-1806(1). Upon entering its decision on September 8, 2009, the board promptly mailed notification to SEPTA, SCRUB, and Allvision LLC. As discussed above, the appellant had never entered a proper appearance on the record and, as such, the board was under no obligation to notify them of the decision.

The appellant’s argument that the board left all or portions of its omnibus in a meeting room are of no consequence. As the omnibus was not a proper form of appearance before the board, whether it was left in the room or placed immediately in the file regarding the hearings does not matter. It still would not have led to the board notifying the appellant of its decision, because it was not a proper appearance.

Likewise, appellant’s argument that it’s counsel’s paralegal requested to be notified of the decision is equally without merit. The board was under no legal duty to notify Ms. Uhl of its decision, whether she requested notification or not. As of September 8,2009 the board’s decision was on file in its offices and could have been reviewed at any time. That neither Ms. Uhl nor any other representative for the appellant inquired about the decision during the 30-day period stated by zoning regulations, section 1(1) in which the decision could be appealed is the decisive fact in this matter.

Based on the facts and evidence presented, there was no procedural breakdown that would make the denial of the nunc pro tunc appeal unjust. SEPTA and the board followed all ordinary procedures, with no after the fact procedural changes as alleged without evidence by the appellant nor any indication of fraud as required of a successful nunc pro tunc petition. If there was any procedural failure, it was that of the appellant in failing to provide a proper appearance before the board other than simply submitting its omnibus. However, despite not having submitted an appearance or having been notified of the board’s decision, the appellant still had an ample 30-day period during which it could have gone to the board’s office and reviewed the publicly available decision, which it failed to do. There was no procedural breakdown and no reason why the appellant could not have filed its appeal in a timely fashion, thus, there was no reason that the nunc pro tune petition should have been granted.

For these reasons, the order of March 9, 2010 should be affirmed.


source: Caselaw Access Project

author: HERTZBERG, J,

license: Public Domain

text:
    Erie Insurance Exchange v. Conley

      C.P. of Allegheny County,
    no. GD 09-21471.

      Arthur Leonard, for plaintiff.

      Mark E. Milsop, for defendant.
    August 27, 2010
   HERTZBERG, J,

-Defendant Matthew Conley has appealed to the Superior Court of Pennsylvania from my declaratory judgment that plaintiff Erie Insurance Exchange has no duty to provide uninsured and underinsured automobile insurance coverage under a policy it issued to Conley. This opinion explains the reasons for my decision.

On October 9, 2008 Conley was employed by Frank Olander t/d/b/a Olander Tree and Landscaping (Olander). Conley, while in the course of this employment, was standing on the ground loading tools into the rear of a dump truck that was being operated by his employer, Frank Olander. Conley alleges that Olander negligently moved the vehicle, striking him and causing him serious personal injuries. Conley acknowledges the incident was between only him and his employer, with no third party involved.

As a result of being injured while in the scope of his employment, Conley was awarded Pennsylvania workers’ compensation benefits. Conley did not make a negligence claim against Olander, his employer, as Conley accepts that the Pennsylvania Workers’ Compensation Act prohibits him from doing so. Instead, Conley made a claim for the uninsured or underinsured motorist benefits contained in his own auto insurance policy that was issued by Erie.

Erie denied Conley’s claim for uninsured or underinsured motorist benefits and commenced the subject litigation by filing an action for declaratory judgment. Conley filed a counterclaim for uninsured or underinsured benefits, and Erie filed a motion for judgment on the pleadings. I granted Erie’s motion and declared that Erie has no obligation to provide Conley with uninsured or underinsured auto insurance benefits for claims arising from the October 9,2008 accident. Conley field a notice of appeal to the Superior Court, alleging in his concise statement of matters complained of on appeal, that I made an error of law by ruling in favor of Erie.

The applicable law includes two topics of Pennsylvania legislation, the Motor Vehicle Financial Responsibility Law (75 Pa.C.S. §§ 1701-1799.1) and the Workers’ Compensation Act (77 P.S. §§1-2626). The Motor Vehicle Financial Responsibility Law (MVFRL) establishes Pennsylvania’s automobile insurance system, and requires insurers to offer uninsured and underinsured coverage. 75 Pa.C.S. §1731 (a). Uninsured coverage primarily is insurance payable if the driver at fault in an accident does not have liability insurance, and underinsurance coverage is insurance payable if the driver at fault’s liability insurance limit is insufficient to pay for all of the damages. 75 Pa.C.S. §§1702 and 1731. The Workers’ Compensation Act (WCA) states that an employer’s liability for benefits under the WCA (including wage loss and medical expenses) is the exclusive remedy an employee has for injury or death that occurs in the course and scope of employment. 77 P.S. §481(a). Since Conley receives WCA benefits, I interpret the WCA exclusivity provision to prohibit Conley from also making claims against Erie for uninsurance or underinsurance.

Conley believes my decision is not supported by the controlling case law. See Conley’s concise statement. However, with respect to the uninsurance claim against Erie, the case of Federal Kemper Insurance Company v. Wales, 430 Pa. Super. 208, 633 A.2d 1212 (1993) clearly is controlling. In that case, Wales was in an auto that was struck in her employer’s parking lot by a truck being driven by one of her fellow employees. Wales received worker’s compensation benefits, but then initiated a lawsuit against the employee who was driving the truck that struck her auto. The lawsuit against the fellow employee was dismissed by the trial court due to the WCA exclusivity provision. Wales then made a claim for uninsurance against Federal Kemper Insurance Company, which insured the auto in which Wales was a passenger. The Superior Court explained that being unable to recover against the fellow employee because of the exclusive remedy of the WCA “does not convert the insured tort-feasor into an uninsured motorist.” 430 Pa. Super at 212, 633 A.2d at 1214. As a result, the Superior Court prohibited Wales from making an uninsurance claim. Similarly, in the case at bar, Conley’s inability to make a claim against Olander due to the WCA does not convert Olander into an uninsured motorist. Indeed, with respect to Conley’s uninsurance claim, the controlling case law supports my decision to prohibit Conley from making the claim.

Conley also argues he is “legally entitled to recover damages” from Olander. This reference is to the MVFRL description of the uninsurance and underinsurance coverage that must be offered by auto insurers. The coverage must provide “protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefore from owners or operators” of uninsured or underinsured motor vehicles. 75 Pa.C.S. §1731(b) and (c). This “legally entitled to recover damages” language is included in the uninsurance and underinsurance provisions of Conley’s insurance policy making it both a legislative and contractual requirement. The Superior Court explained the meaning of this language in Kmonk-Sullivan v. State Farm Mutual Automobile Insurance Company, 746 A.2d 1118 (Pa. Super. 1999). In that case, approximately 50 people who were injured when two Port Authority of Allegheny County (PAT) buses collided head-on received the $ 1,000,000 damage maximum permitted by the Political Subdivision Tort Claims Act (42 Pa.C.S. §§8521-28). Thirty-four of those injured then made underinsurance claims with their own auto insurance carriers. The Superior Court ruled that the 34 were “legally entitled” to recover against PAT notwithstanding the $1,000,000 Political Subdivision Tort Claims Act limit. The Superior Court held that the legislature waived sovereign immunity to this extent thus legally entitling parties injured through the negligent operation of government vehicles to make underinsurance claims. Kmonk-Sullivan, supra, 746 A.2d at 1122. The Superior Court carefully explained that there is not legal entitlement in situations where other statutes completely bar claims. The Superior Court specifically referenced that “the workers’ compensation statute completely barred the injured employee from bringing suit against his co-employee tortfeasor.” Hence, when injured by the negligence of a co-employee, the injured employee is not legally entitled to sue the co-employee or make a claim for uninsured or underinsurance benefits. Conley therefore is not “legally entitled” to recover damages from dander because the WCA completely bars him from suing his employer.

Conley also believes Gardner v. Erie Insurance Company, 555 Pa. 59, 722 A.2d 1041 (1999) supports Conley’s position. See Conley’s concise statement and brief in opposition to plaintiffs motion for judgment on the pleadings. However, there is a critical factor present in the Gardner case that is absent from the case at bar. A third party who was not an employer or co-employee was at fault in the accident that injured Gardner. Hence, even though Gardner was working when the accident occurred and subsequently received workers’ compensation benefits, the Supreme Court permitted Gardner’s uninsurance claim because it was “premised upon wrongful third-party conduct. . . .” 555 Pa. 59, 71, 722 A.2d 1041, 1046. Conley’s claim is not premised upon third-party conduct; it is premised exclusively upon the allegedly negligent conduct of Olander, Conley’s employer.

The Superior Court set forth the method for analyzing situations when employer immunity from the WCA applies in Warner v. Continental/CNA Insurance Compa nies, 455 Pa. Super. 295, 688 A.2d 177 (1997). The Superior Court began with an explanation of the historic basis for the WCA. Injured employees had initiated an overwhelming number of suits. The WCA was enacted to efficiently compensate the employees by providing them benefits without the requirement of employer negligence. However, the WCA limits the amount of employee benefits available for work-related injury and gives the employer immunity from additional claims for damages. Id., 455 Pa. Super, at 308-309, 688 A.2d at 184. Hence, in analyzing issues of employer immunity, the Superior Court focuses on whether the claim implicates employer wrongdoing or negligence. Id. Since an automobile accident claim premised on the negligence of a third party does not implicate employer wrongdoing (e.g., Gardner v. Erie, supra), the employer may not assert immunity.

Applying this analysis to the case at bar, to make an underinsurance coverage claim, Conley must be “legally entitled to recover damages” from the owner or operator of an underinsured auto. 75 Pa C.S. §1731(c). To be legally entitled to recover damages, it is axiomatic that Conley prove negligence by the party injuring him. Because that party is dander, Conley’s employer, negligence or employer wrongdoing clearly is implicated. Conley’s underinsurance claim derives directly from his assertion that his employer negligently struck him. Therefore, there is immunity from suit for Erie, the underinsurance carrier, to “borrow.” Warner supra, 455 Pa. Super. at 309, 688 A.2d at 184. Thus, even though Gardner v. Erie permitted an uninsurance claim after payment of WCA benefits, the case does not support Conley because a third party was at fault in Gardner v. Erie. The analysis set forth in Warner and followed in Gardner does not permit either uninsurance or underinsurance claims that derive from employer negligence. Gardner instead applies the WCA employer immunity to Conley’s claims because they implicate his employer’s negligence.

Conley’s final argument is that denying him uninsurance and underinsurance benefits is contrary to public policy. See concise statement. Conley appears to premise this argument on the “legally entitled to recover” provision in Erie’s policy being an exclusion from coverage that is not favored by the MVFRL. This premise is false, as the “legally entitled to recover” provision in Erie’s policy also is set forth, verbatim, in the MVFRL. See 75 Pa.C.S. §1731(b) and (c). Characterizing this argument as involving an insurance policy provision that violates public policy is, therefore, incorrect. It is the public policy dictated by the Pennsylvania Legislature in the MVFRL that excludes persons not legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles. It also is the Pennsylvania Legislature’s public policy set forth in the WCA that gives dander immunity from suit and Erie immunity from derivative uninsured or underinsured claims. Since these two legislative enactments indicate a public policy against Conley receiving uninsurance or underinsurance claims, Conley’s argument concerning public policy lacks merit.

      . The WCA immunizes both the employer (77 P.S. §481) and the co-employee (77 P.S. §72) from liability if WCA benefits are paid.


author: COX, J,

text:
    Richard A. Papa & Associates P.C. v. Highmark Blue Shield
    C.P. of Lawrence County,
    no. 11537 of 2009.

      Susan M. Papa, for plaintiff.

      Geri L. Sperling and Kenneth S. Kornacki, for defendant.

      August 3, 2010
   COX, J,

Before the court for disposition are the preliminary objections filed on behalf of the defendant Highmark Blue Shield, which argue that the plaintiff’s complaint violates Pa.R.C.P. 1019(h) and (i) because it failed to attach a copy of the agreement between the parties. Additionally, the defendant contends that the court should strike Count II of plaintiff’s complaint because the plaintiff has failed to adequately aver that t is an insured as is required pursuant to 42 Pa.C.S. §8371.

The plaintiff Richard A. Papa & Associates P.C., provides pediatric and adolescent physician services and it is located at 183 Enclave Drive, New Castle, Lawrence County, Pennsylvania. The defendant is an insurer within the Commonwealth of Pennsylvania and its principal place of business is located at Fifth Avenue Place, 120 Fifth Avenue, Suite P4420, Pittsburgh, Pennsylvania. According to the complaint, the plaintiff served as a preferred provider and a health service provider for the defendant’s policyholders, and the defendant, in return, provides payment on behalf of those patients. On May 5, 2009, the defendant notified the plaintiff that it was reviewing the plaintiff’s records pursuant to procedure code 99239. Based on that audit, the defendant requested a refund from the plaintiff in the amount of $2,205.99. The plaintiff now contends that it complied with all the terms of the “prevailing agreement” and the defendant is required to pay for all the necessary medical services provided by the plaintiff. It must be noted that the plaintiff did not attach a copy of the “prevailing agreement” to its complaint.

As a result, the plaintiff has filed suit alleging that the defendant’s demand for payment constitutes a breach of contract. The plaintiff also contends that the defendant acted in bad faith through the denial of payment. Moreover, in Count III of the complaint, the plaintiff seeks declaratory relief to determine the question of payment to, services rendered by the plaintiff regarding procedure code 99239. In response to the plaintiff’s complaint, the defendant has filed the aforementioned preliminary objections.

First, the defendant argues that the plaintiff violated Pa.R.C.P. 1019(h) and (i) by failing to attach a copy of the agreement between the parties to the complaint. Pa.R.C.P. 1019(h) requires that the plaintiff state whether its cause of action is based upon a written or oral agreement when the foundation of that claim is an express contract. Moreover, “the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing.” Pa.R.C.P. 1019(i). Furthermore, the court may dismiss the plaintiff’s complaint in cases where the plaintiff fails to indicate whether the contract is written, does not attach a copy of the written contract and does not explain why the written contract could not be obtained by the plaintiff. Jones v. City of Philadelphia, 73 D.&C.4th 246, 272 (Philadelphia Cty. 2005) (citing Presbyterian Medical Center v. Budd, 832 A.2d 1066 (Pa. Super. 2003)).

In the current case, the plaintiff’s complaint mentions the “prevailing agreement”, but fails to state whether the agreement is written or oral and fails to set forth any portion of that agreement. In addition, the plaintiff has not provided the court with an explanation regarding its failure to attach the “prevailing agreement”. The plaintiff has not identified the specific agreement upon which it is relying as it used the term “prevailing agreement”, which indicates that the parties may have entered into multiple agreements. Consequently, the defendant may be unable to determine the exact agreement to which the plaintiff is referring. The plaintiff is required to attach a copy of the agreement to the complaint or explain the substance of the agreement with greater specificity. In concurrence with the rule set forth in Jones, the court sustains the defendant’s first preliminary objection regarding the plaintiff ’s violation of Pa.R.C.P. 1019(i) and the plaintiff is granted leave to amend its complaint.

Next, the defendant claims that the plaintiff is not an insured and does not qualify for relief pursuant to the Pennsylvania bad faith statute. 42 Pa.C.S. §8371 states:

“In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions: [emphasis added]
“(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3 percent.
“(2) Award punitive damages against the insurer.
“(3) Assess court costs and attorney fees against the insurer.”

It is clear that only an insured may file a bad faith claim against the insurer under 42 Pa.C.S. §8371. Pennsylvania Medical Society Liability Insurance Company v. Commonwealth Medical Professional Liability Catastrophe Loss Fund, 804 A.2d 1267, 1271 (Pa. Commw. 2002), vacated, in part by Pennsylvania Medical Society Liability Ins. Co. v. Commonwealth Medical Professional Liability Catastrophe Loss Fund, 577 Pa. 87, 842 A.2d 379 (2004). Pennsylvania law prohibits any third-party from asserting a statutory bad faith claim against an insurer, unless there has been a proper assignment from the insured. Marks v. Nationwide Insurance Company, 762 A.2d 1098, 1101 (Pa. Super. 2000). In order to determine who has the right to recover from an insurance policy, the court must examine the following: (1) who is named as the insured on the policy, (2) who pays the premiums and from what funds and (3) for whose benefit was the policy held. See Bryant v. Girard Bank, 358 Pa. Super. 335, 353-54, 517 A.2d 968, 978 (1986).

In the case sub judice, the defendant and the plaintiff entered into an agreement establishing the plaintiff as a preferred provider, a health service provider and a providing physician who was entitled to receive payment from the defendant after providing medical care to the defendant’s policyholders. The plaintiff does not aver that it is an insured pursuant to the alleged agreement between the parties. The complaint sets forth that the plaintiff provides medical care and in return it receives payment from the defendant. However, the defendant is acting as an insurer on behalf of the plaintiff’s patients. The patients or someone on behalf of the patients are paying for the medical insurance and, in return, the defendant provides compensation to the plaintiff for the necessary medical care. Clearly, the insurance policies are being held for the benefit of the patients, not the plaintiff. In that situation, the patients would be the insured and the defendant would be the insurer. As a result, the plaintiff would retain the designation as a preferred provider or health service provider, and would not be an insured as required by 42 Pa.C.S. §8371. Therefore, the plaintiff has failed to adequately plead a claim for statutory bad faith as it has not set forth facts sufficient to establish that it is an insured under its agreement with the defendant.

In response to defendant’s preliminary objections, the plaintiff argued, in the event the court finds that it did not plead a cause of action for statutory bad faith, that it is still entitled to recover for a common law bad faith claim. However, it is well-established that the common law in Pennsylvania does not provide for a bad faith cause of action against an insurance company. Johnson v. Progressive Insurance Company, 987 A.2d 781 (Pa. Super. 2009). Thus, the plaintiff is not entitled to recover for a common-law bad faith claim as it is not recognized as a valid cause of action in Pennsylvania.

Count II of the complaint asserting a cause of action for bad faith, either based on statute or common law, is dismissed.

For the reasons set forth in this opinion, the defendant’s preliminary objections are granted and Count II of the plaintiff’s complaint is dismissed. The plaintiff has been granted leave to amend its complaint.

ORDER

Now this, August 3, 2010, this case being before the court for disposition of the preliminary objections filed on behalf of the defendant, and after a consideration of the briefs submitted by both counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

(1) The preliminary objection alleging a violation of Pa.R.C.P. 1019(h) and (i) is hereby sustained.

(2) The court grants leave for plaintiff to amend the complaint within 20 days after notice of this order of court in order to be in compliance with said rules.

(3) The preliminary objection to Count II, the bad faith claim, is hereby sustained.

(4) Count II claiming a cause of action of bad faith is hereby dismissed with prejudice.

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


author: NEAL ON, J.,

text:
    Petrochko v. Nationwide Mutual Insurance Company

      C.P. of Lackawanna County,
    no. 07 CV 7113.

      P. Timothy Kelly, for plaintiff.

      Zygmunt R. Bialkowski Jr., for defendant.

      August 27, 2010
   NEAL ON, J.,

The parties’ motions for summary judgment present an issue which has not been addressed by a state appellate court: whether an employee, who receives workers’ compensation benefits for injuries sustained in an automobile accident that is negligently caused by a co-worker, may also recover underinsurance motorist (UIM) benefits for the employee’s non-economic damages. Pennsylvania law and the insurance policy at issue limit UIM coverage to insureds who “are legally entitled to recover damages” from the underinsured tort-feasor. Since the negligent motorist in this case is immune from negligence liability to the insured employee due to the exclusive remedy provision of the Workers’ Compensation Act, the employee is not entitled to recover compensatory damages from the underinsured tort-feasor. As such, the employee is ineligible to collect UIM benefits under 75 Pa.C.S. §1731(c) and the applicable policy.

I. FACTUAL BACKGROUND

Plaintiff Cheryl Petrochko and defendant Nationwide Mutual Insurance Company have filed motions for summary judgment with regard to Petrochko’s claim for underinsured motorist (UIM) benefits from Nationwide. The parties’ joint submissions reflect that the salient facts are not in dispute. On December 11, 2003, Petrochko was injured during the course of her employment with Cinram Manufacturing Inc. when she was struck by a motor vehicle that way being operated by a co-worker, Albert L. Calzóla Jr., within the scope of his employment. As a result of her work-related injury, Petrochko applied for, and received, workers’ compensation benefits from PMA Insurance Group comprised of medical expense benefits totaling $42,582.60 and indemnity payments in the amount of $142,482.83, including a lump sum payment of $48,000.

At the time of her injury, Petrochko was insured by Nationwide pursuant to a policy (no. 5837C012499) which afforded UIM coverage in the amount of $50,000. Nationwide’s policy defines an “underinsured motor vehicle” as a vehicle whose bodily injury liability coverage “is insufficient to pay the damages an insured is entitled to recover.” (Nationwide endorsement 2360 at p. 1.) The UIM coverage agreement obligates Nationwide to “pay compensatory damages... which are due by law to [Petrochko]... from the owner or driver of an under-insured motor vehicle because of bodily injury suffered by [Petrochko].” {Id.) In accordance with Pennsylvania law, the UIM provisions entitle Nationwide to an offset or reduction for any amount that has been paid to the UIM claimant (Petrochko) by the tort-feasor’s liability insurance carrier. {Id. at p. 3.)

By virtue of the exclusive remedy provision of section 205 of the Workers’ Compensation Act (WCA), 77 P.S. §72, Calzóla is immune from tort liability to Petrochko for any vehicular negligence. As a consequence, Petrochko has not recovered any compensatory damages from Calzóla or his liability insurer. Nor has Petrochko ever asserted a liability claim against Calzóla or his insurer within the two-year statute of limitations period governing negligence claims.

On December 11, 2007, Petrochko filed a complaint against Nationwide seeking a declaratory judgment that she is entitled to UIM benefits from Nationwide. On April 9,2009, Petrochko entered into a compromise and release agreement with Cinram and PMA pursuant to which PMA agreed to pay Petrochko’s medical expenses for her work-related injuries until her Centers for Medicare & Medicaid Services (CMS) approved Medicare Set-Aside is exhausted. (Defendant’s statement of facts in support of motion for summary judgment, ¶¶7, 10-12; plaintiff’s answer to defendant’s statement of facts ¶¶7,10-12.) Both parties subsequently filed motions for summary judgment requesting declaratory judgment relief with respect to Petrochko’s demand for UIM benefits from Nationwide.

Nationwide contends that Petrochko is not entitled to UIM coverage under the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. §1701 et seq., and Nationwide’s insurance policy. Section 1731(c) of the MVFRL obligates insurers to provide UIM coverage “for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles.” 75 Pa.C.S. §1731(c). Nationwide’s UIM policy language similarly requires Nationwide to pay “compensatory damages . . . which are due by law to [Petrochko] . . . from the owner or driver of an underinsured motor vehicle because of bodily injury suffered by [Petrochko].” Nationwide submits that since Petrochko is not legally entitled to recover damages from Calzóla, nor are any compensatory damages “due by law” to Petrochko from Calzóla, Petrochko is not entitled to UIM coverage for her work-related injuries. (Defendant’s brief, pp. 6-7.)

Relying upon Brumbaugh v. Erie Insurance Exchange, no. 2006-2211 (Franklin Cty. Nov. 30, 2006) which adopted the reasoning set forth in Barfield v. Barfield, 742 P.2d 1107 (Okla. 1987), Petrochko argues that the phrase “legally entitled to recover” in 75 Pa.C.S. § 1731 (c) should be interpreted to mean “able to establish fault on the part of [Calzóla], which gives rise to damages, and prove the extent of those damages.” (Plaintiff’s brief, p. 5, quoting Barfield, supra.) Petrochko asserts that her legal ability to recover compensatory damages from Calzóla does not determine her entitlement to UIM coverage under section 1731(c) of the MVFRL and Nationwide’s policy. (Id. at pp. 4-6.) Since Petrochko has received payment only for her economic losses via workers’ compensation benefits, she maintains that she should be permitted to recover non-economic damages under the UIM provisions of Nationwide’s policy. (Id. at p. 8.) Following the completion of oral argument on July 20, 2010, the parties’ motions for summary judgment became ripe for disposition.

II. DISCUSSION

(A) Standard of Review

Summary judgment may be granted only in those cases in which the record clearly establishes that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Mull v. Ickes, 994 A.2d 1137, 1139 (Pa. Super. 2010). The Declaratory Judgments Act enables parties to an insurance policy to secure a declaration of their respective rights and duties under the policy. Bottomer v. Progres sive Casualty Insurance Co., 816 A.2d 1172, 1175 (Pa. Super. 2003), appeal dismissed, 580 Pa. 114, 859 A.2d 1282 (2004); HARIE v. Lycoming County Housing Authority, 58 D.&C.4th 321, 337 (Lacka. Cty. 2001), aff’d, 809 A.2d 1096 (Pa. Commw. 2002). Since the proper interpretation of an insurance policy presents a question of law for the court, see Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 333 n.2, 473 A.2d 1005, 1008 n.2 (1984), questions concerning an insured’s right to insurance benefits may be decided by summary judgment in a declaratory judgment proceeding. See Dixon v. GEICO, 2010 WL 2950318 at * 2, ¶18 (Pa. Super. 2010); Reeser v. Donegal Mutual Insurance Company, 2008 WL 4453474 (Lacka. Cty. 2008).

(B) Impact of Co-Employee’s Tort Immunity on Availability of UIMBenefits

The parties’ motions for summary judgment involve interpretation of pertinent provisions of the MVFRL, the WCA and Nationwide’s policy. The Statutory Construction Act requires a court to ascertain and effectuate the intent of the General Assembly when interpreting a statute, and if the words of a statute are clear and unambiguous, the letter of the statute may not be disregarded under the pretext of pursuing its spirit. See 1 Pa.C.S. § 1921 (a)-(b); Tannenbaum v. Nationwide Insurance Company, 992 A.2d 859, 866 (Pa. 2010). Similarly, where the language employed in an insurance policy is clear and unambiguous, a court is required to give effect to that language. Genaeya Corp. v. Harco National Insurance Co., 991 A.2d 342, 346 (Pa. Super. 2010).

Contractual language is considered ambiguous only “if it is reasonably susceptible of different constructions and capable of being understood in more than one sense,” and courts should not “distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity.” Nordi v. Keystone Health Plan West Inc., 989 A.2d 376. 380 (Pa. Super. 2010) (quoting Madison Construction Company v. Harleysville Mutual Insurance Company, 557 Pa. 595, 606, 735 A.2d 100, 106 (1999)). Insurance policy language is not deemed ambiguous merely because the parties do not agree on its proper interpretation. Donegal Mutual Insurance Company v. Raymond, 899 A.2d 357, 361 (Pa. Super. 2006); HARIE, 58 D.&C. 4th at 343.

The MVFRL defines an underinsured motor vehicle as any “vehicle for which the limits of available liability insurance and self-insurance are insufficient to pay losses and damages.” 75 Pa.C.S. §1702. Nationwide’s policy likewise defines an underinsured motor vehicle as a vehicle whose “total amount [of liability coverage] is insufficient to pay the damages an insured is entitled to recover.” (Nationwide endorsement 2360 at p. 1.) Section 1731 (c) of the MVFRL addresses UIM coverage in Pennsylvania and states that “[u]nderinsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles.” 75 Pa.C.S. §1731(c). (emphasis added) A comparable UIM coverage provision is contained in Nationwide’s policy which requires Nationwide to “pay compensatory damages, including derivative claims, which are due by law to you . . . from the owner or driver of an underinsured motor vehicle because of bodily injury suffered by you.” (Nationwide endorsement 2360, supra.) (emphasis added)

Thus, the relevant statutory and contractual language provides that as a condition precedent to a claimant’s ability to recover UIM benefits, [s]he must be “legally entitled to recover damages” which “are due by law” from the operator or owner of the underinsured motor vehicle. In that regard, Calzola’s liability for damages to Petrochko is governed by section 205 of the WCA which reads:

“Liability of fellow employe[e]
“If disability or death is compensable under this act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.” 77 P.S. §72.

Pursuant to the exclusive remedy provision set forth in 77 P.S. §72, a co-employee is immune from negligence liability to a fellow employee for any injuries sustained in a work-related automobile accident. See Ducjai v. Dennis, 540 Pa. 103, 113, 656 A.2d 102, 107 (1995) (“we hold that an employee may not recover both workers’ compensation benefits from her employer as well as damages at common law from her co employee under the MVFRL, when injured in an automobile accident during the course and scope of her employment.”); Employers Mutual Casualty Company v. Boiler Erection and Repair Company, 964 A.2d 381, 389 (Pa. Super. 2008) (where an employee’s injuries suffered in an automobile accident are compensable under the WCA, 77 P.S. §72 immunizes fellow employees from tort liability for their vehicular negligence), appeal denied, 603 Pa. 695, 983 A.2d 729 (2009).

Nationwide posits that Petrochko cannot collect UIM benefits from Nationwide since she is not “legally entitled to recover damages” from Calzóla such that compensatory damages are not “due by law” to her. Petrochko counters that the statutory and contractual conditions to UIM coverage should be interpreted more narrowly to require mere proof of operator negligence and resulting damages without the necessity of establishing legal liability on the part of the negligent motorist. Both parties acknowledge that the specific issue presented by their summary judgment motions has not yet been decided by a state appellate court in this Commonwealth.

Employees who have been injured in work-related automobile accidents have been permitted to recover uninsured motorist (UM) and UIM benefits from their own insurer, see Safe Auto Insurance Company v. School District of Philadelphia, 872 A.2d 247, 252-53 (Pa. Commw. 2005), their employer’s insurer see Warner v. Continental/CNA Insurance Companies, 455 Pa. Super. 295, 310-11, 688 A.2d 177, 185 (1996), appeal denied, 548 Pa. 660, 698 A.2d 68 (1997), and their co-employee’s insurance policy. See Gardner v. Erie Insurance Company, 555 Pa. 59, 72, 722 A.2d 1041, 1047 (1999). However, in each of those instances, the negligent motorist was someone other than a fellow employee or the employer, as a result of which the UM/UIM claimant was in fact “legally entitled to recover damages” from the culpable tort-feasor. See e.g., Gardner, 55 Pa. at 61, 722 A.2d at 1041 (“This appeal presents the issue of whether an employees receipt of workers’ compensation benefits relating to injuries sustained while driving a co-employee’s automobile and arising out of wrongful third-party conduct bars him from recovering uninsured motorist benefits from the co-employee’s insurance carrier.”) (emphasis added); Safe Auto Insurance Co., 872 A.2d at 248 (bus driver involved in accident with uninsured tort-feasor); Warner, 455 Pa. Super, at 298, 688 A.2d at 178 (“[Cláimant] instituted suit against the driver of the other vehicle involved in the accident and settled the action prior to trial for ... a sum which represented the tort-feasor’s policy limits.. ..”). Instantly, the accident and injuries were caused by Petrochko’s co-worker who, unlike the tort-feasors in Gardner; Safe Auto and Warner, enjoys immunity from negligence liability under 77 P.S. §72.

The significance of that distinction was recognized by the Supreme Court of Pennsylvania in Gardner. In holding that an employee could recover UM/UIM benefits under a fellow employee’s policy notwithstanding the co-employee immunity afforded by the WCA, the Gardner court concluded:

“The requirement for the provision of optional uninsured motorist coverage is contained in section 1731 of the MVFRL, which explains that such coverage is available for persons who are ‘legally entitled to recover’ for injuries arising out of the maintenance or use of a motor vehicle.... Such contractual recovery, where premised upon wrongful third party conduct, is not against the co-employee, nor does it proceed on the basis of any actual or potential legal liability on the part of the co-employee. Therefore, the co-employee immunity of section 205, by its terms, is not implicated.” Gardner, 555 Pa. at 70-71, 722 A.2d at 1046-47. (emphasis added) (footnotes omitted)

More importantly, the Supreme Court in Gardner expressly clarified that it was not addressing the issue which has been raised by the parties in the case sub judice, and remarked:

“The question whether the recovery of underinsured motorist benefits should he permitted where the claim arises out of the negligence of the co-employee is not presently before us. We note, however, that many jurisdictions have found that the tort immunity of a co-employee means that the injured employee is not ‘legally entitled to recover’ from the co-employee and therefore, as a contractual matter, may not recover pursuant to an underinsured motorist benefits policy. See generally, [.Ludington, ] ‘Automobile Uninsured Motorist Coverage: “Legally Entitled to Recover” Clause as Barring Claim Compensable Under Workers’ Compensation Statute,’ 82 A.L.R. 4th 1096, §5 (1996). But see Barfield v. Barfield, 742 P. 2d 1107, 1112 (Okla. 1987) (concluding that it would be manifestly unjust to permit an insurer to avoid contractual and statutorily defined duties by asserting third-party tort immunity as a defense to payment of uninsured motorist benefits).” Id., at 71 n.12, 722 A.2d at 1046 n.12.

In support of her proffered interpretation of the phrase “legally entitled to recover” in section 1731(c) of the MVFRL, Petrochko advocates the rationale contained in the unpublished trial court ruling in Brumbaugh, surpa, which adopted the construction formulated by the Oklahoma Supreme Court in Barfield. Brumbaugh, supra, at p. 8 (“The court will interpret ‘legally entitled’ as interpreted by the Oklahoma Supreme Court in Barfield, thus permitting recovery because [the co-worker] is indisputably at fault for this vehicular accident.”). The Barfield court determined that “[t]he words ‘legally entitled to recover’ simply mean that the insured must be able to establishfault on the part of the uninsured motorist which gives rise to damages and prove the extent of those damages.” Barfield, 742 P. 2d at 1112. (emphasis in original) Stated otherwise, the Oklahoma Supreme Court found that “[t]he term ‘legally entitled to recover’ does not mean that an insured must be able to proceed against an uninsured/underinsured in tort in order to collect uninsured motorist benefits.” Id. (emphasis in original) However, only one other jurisdiction has adopted the Barfield court’s interpretation of the phrase “legally entitled to recover” in conjunction with claims for UM/ UIM benefits.

The only reported decision addressing the parties’ narrow issue under Pennsylvania law can be found in Nationwide Insurance Company v. Chiao, 374 F. Supp.2d 432 (M.D. Pa. 2005), rev’d and remanded, 186 Fed. Appx. 181 (3d Cir. 2006). The plaintiff in Chiao was injured in a work-related accident while she was a passenger in a vehicle operated by a fellow employee. After the co-worker’s liability insurer inexplicably tendered its policy limits of $15,000, despite its insured’s tort immunity under 77 P.S. §72, the plaintiff demanded UIM benefits from her own insurer. Chiao, 374 F. Supp.2d at 435. Nationwide and Chiao filed motions for summary judgment on the issue of “whether an automobile insurer must provide coverage to an insured who has purchased supplemental UIM insurance when the insured was injured solely by a co-employee’s negligence.” Id. Finding that the language “due by law” was “boilerplate” insurance terminology with no legally cognizable meaning, the trial court declared that phrase to be ambiguous, analyzed the public policies underlying the MVFRL and the WCA, and predicted “that the Pennsylvania Supreme Court would determine that the policy behind underinsured motorist insurance, namely that UIM insurance is purchased to protect ‘individuals injured by a tort-feasor with inadequate insurance coverage,’ requires insurers to compensate their customers when injured by an underinsured co-employee.” Id. at 446.

On appeal, the United States Court of Appeals for the Third Circuit noted that “[t]he parties disagree over how this court should interpret the words legally entitled to recover’ in the MVFRL and ‘due by law’ in the coverage agreement, in light of the exclusivity provisions set forth in the WCA.” Chiao, 186 Fed. Appx. at 183. Concluding “that the term ‘due by law’ is not ambiguous” as a matter of law, id. at 184, the Third Circuit reversed the trial court ruling and held:

“We equate the policy’s term ‘due by law’ to the MVFRL’s term ‘legally entitled to recover’ to which it bears a close semantic relationship. Because it is unambiguous under the WCA that an injured employee is not ‘legally entitled to recover’ any damages from a negligent co-employee, compensatory damages for injuries sustained because of the negligence of a co-employee are not ‘due by law,’ and therefore are not within the terms of the coverage agreement.” Id. at 185. Accord, Shaw v. State Farm Insurance Company, 331 Fed. Appx. 946 (3d Cir. 2009) (since plaintiff was not “legally entitled to collect” bodily injury damages from his co-worker, plaintiff’s insurer was not obligated to pay UM/UIM benefits under its policy).

A well-recognized treatise on Pennsylvania automobile insurance law has also reasoned that a claimant who is injured due to the negligence of a fellow employee is ineligible to collect UIM benefits due to the co-employee’s tort immunity. In Ronca & Sloane, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law (2d ed. 2009), the authors distinctly address the availability of UIM benefits vis-a-vis the exclusive remedy provisions of the Workers’ Compensation Act, and state:

“The Pennsylvania Superior Court has determined that an injured employee is not precluded from recovering underinsured motorist benefits otherwise available under the terms of the policy solely as a result of the exclusivity provisions of the Workers’ Compensation Act. However, if the employee was injured by a co-worker, the workers’ compensation immunity provision will prevent the injured employee from collecting UIM benefits. In other words, due to the co-employee immunity provision, no damages are ‘due by law’ or stated another way, the injured co-employee is not ‘legally entitled to recover.’ ” Id. at section 5.6, pp. 107-108.

We agree with the appellate reasoning in Chiao that the statutory phrase “legally entitled to recover” and the contractual condition “due by law” are congruous and unambiguous in the context of UM/UIM claims. The plain language of the MVFRL and Nationwide’s policy restricts UIM coverage to those claimants who “are legally entitled to recover damages” from the tort-feasor under the applicable law. Inasmuch as Petrochko is clearly not entitled to recover damages from Calzóla under the governing law, she is ineligible to collect UIM benefits under 75 Pa.C.S. §1731(c) and Nationwide’s policy. See Ronca & Sloane, supra.

If the legislature had intended to provide UIM coverage to a claimant who has been negligently injured by a co-worker, it would have drafted section 1731(c) of the MVFRL to require UIM coverage for accident victims who “establish fault on the part of the underinsured motorist” and “prove the extent of [their] damages.” However, neither the General Assembly nor Nationwide chose to use such language and instead opted to limit UIM coverage to claimants who are “legally entitled to recover” damages from the tort-feasor. As we have previously noted, it is not the prerogative of a court to insert language into the MVFRL which the legislature has not included, see Olsofsky v. Progressive Insurance Co., 52 D.&C. 4th 449, 477 (Lacka. Cty. 2001), and it is equally inappropriate for a declaratory judgment court to rewrite an insurance policy to include terms that the parties did not insert in their contract. See HARIE, 58 D.&C.4th at 347. Rather, our charge is to interpret the statute and insurance policy as plainly written. DeFazio v. Board of Directors of North Pocono School District, 62 D.&C.4th 140, 152 (Lacka. Cty. 2003), aff'd, 834 A.2d 714 (Pa. Commw. 2003); HARIE, 58 D.&C.4th at 347-48. See also, Heller v. Pennsylvania League of Cities & Municipalities, 950 A.2d 362, 371 (Pa. Commw. 2008) (“a court should not act as a super-legislature in redrafting contract documents on the sole basis of outcomes that may be desired for the general good. . . .”), appeal granted, 601 Pa. 570, 975 A.2d 1080 (2009).

In sum, the unambiguous and synonymous language of the MVFRL and Nationwide’s policy clearly limit UIM benefits to those insureds who are legally entitled to recover damages from the negligent motorist under the governing law. Since Calzóla is immune from liability to Petrochko under 77 P.S. §72, Petrochko is not legally entitled to recover damages from Calzóla under Pennsylvania law. Accordingly, she is not eligible to recover UIM benefits from Nationwide for the injuries that she sustained on December 11, 2003, and Nationwide’s motion for summary judgment will therefore be granted.

ORDER

And now, August 27, 2010, upon consideration of defendant’s motion for summary judgment, plaintiff’s cross-motion for summary judgment, the memoranda of law submitted by the parties and the oral argument of counsel, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) Defendant’s motion for summary judgment is granted;

(2) Plaintiff’s cross-motion for summary judgment is denied;

(3) Plaintiff Cheryl Petrochko is ineligible to collect underinsured motorist benefits from defendant Nationwide Mutual Insurance Company pursuant to policy no. 5837C012499 for injuries sustained by the plaintiff in a motor vehicle accident on December 11,2003 involving the plaintiff’s fellow employee, Albert L. Calzóla Jr., during the course of their employment with Cinram Manufacturing Inc.; and

(4) The clerk of Judicial Records is directed to enter judgment in this matter pursuant to 42 Pa.C.S. §§7532 and 7538 consistent with this memorandum and order.

      . Of the 22 other slates that have decided this specific issue, 21 jurisdictions have concluded th the injured employee is ineligible to recover UM/UIM benefits since the employee is not “legally entitled to recover” compensatory damages due to the fellow employee’s tort immunity. See Littlejohn v. State Farm Mutual Auto Insurance Company, 2010 WL 2029058 at * 3 (Del. Super. 2010); Otterberg v. Farm Bureau Mut Ins. Co., 696 N.W.2d 24, 30-31 (Iowa 2005); Snyder v. Am. Family Ins. Co., 2005 WL. 3484221 at * 4 (Ohio App. 2005), aff’d, 114 Ohio St.3d 239, 871 N.E.2d 574 (Ohio 2007); Ex Parte Carlton, 867 So.2d 332, 338 (Ala. 2003); Wachtler v. State Farm Mut. Aut. Ins. Co., 835 So.2d 23, 28 (Miss. 2003); Matarese v. New Hampshire Mun. Ass’n. Prop. Liab. Ins. Trust Inc., 147 N.H. 396, 403-405, 791 A.2d 175, 180-182 (2002); Peterson v. Utah Farm Bureau Ins. Co., 927 P.2d 192, 196-97 (Utah App. 1996); Wisman v. William J.

        Rhodes & Shamblin Stone Inc., 191 W.Va. 542, 545-46, 447 S.E.2d 5, 8-9 (1994); State Farm Mut. Auto Ins. Co. v. Royston, 72 Haw. 338, 339-40, 817 P.2d 118, 119 (1991); Chance v. Farm Bureau Mut. Ins. Co. Inc., 756 F. Supp. 1440, 1446 (D. Kan. 1991) (applying Kansas law); Kough v. New Jersey Auto. Full Ins. Underwriting Ass’n, 237 N.J. Super. 460, 469, 568 A.2d 127, 132 (N.J. Super. 1990), cert. denied, 121 N.J. 638, 583 A.2d 331 (1990); Cormier v. National Farmers Union Property & Cas. Co., 445 N.W.2d 644, 647 (N.D. 1989); Williams Thomas, 187 Ga. App. 527, 528, 370 S.E.2d 773, 775 (1988); Aetna Cas. & Surety Co. v. Dodson, 235 Va. 346 351, 367 S.E.2d 505, 508 (1988); Allstate Ins. Co. v. Boynton, 486 So.2d 552, 553-54 (Fla. 1986);Hubbel v. Western Fire Ins. Co., 218 Mont. 21, 23-24, 706 P.2d 111, 112 (1985); Peterson v. Kludt, 317 N.W.2d 43, 49 (Minn. 1982); Carlisle v. State Through Dept. of Transp., 400 So.2d 284, 287 (La. App. 1981), writ denied, 404 So.2d 1256 (La. 1981); O’Dell v. State Farm Mut. Auto Ins. Co., 173 Ind. App. 106, 107-108, 111-12, 362 N.E.2d 862, 864, 866 (Ind. App. 1977); Williams v. Country Mut. Ins. Co., 28 I11. App.3d 274, 276-77, 328 N.E.2d 117, 119 (Ill. App. 1975); Hopkins v. Auto-Owners Ins. Co., 41 Mich. App. 635, 638, 200 N.W.2d 784, 786 (Mich. App. 1972). Only Arkansas has reached a contrary conclusion and allowed UM/UIM coverage. See Southern Farm Bureau Cas. Ins. Co. v. Pettie, 54 Ark. App. 79, 88, 924 S.W.2d 828, 832 (1996).

      . The court in Holland v. GEICO General Insurrance Co., 2001 WL 1818099 (ED. Pa. 2001), aff’d, 62 Fed. Appx. 415 (3d Cir. 2002) considered the recovery of UIM benefits by an employee who was injured in an automobile accident caused by a fellow employee prior to the repeal of sections 1735 and 1737 of the MVFRL. Section 1735 formerly provided that UM/UIM coverages “shall not be made subject to an exclusion or reduction in amount because of any workers’ compensation benefits payable as a result of the same injury,” whereas former section 1737 stated that “no employee who is otherwise eligible shall be precluded from recovery of uninsured or underinsured motorist benefits from an employer’s motor vehicle policy....” Hoi

        land, supra, at *5 n.l and 2. The Holland court did not address that same issue under the current version of the MVFRL which is applicable to Petrochko’s claim. Id. at * 11 (“This court has not been called upon to decide how the Supreme Court would rule in a similar scenario post-repeal of [sections] 1735 and 1737.”).

      . Although unpublished opinions of the Court of Appeals lack precedential authority under Third Circuit Internal Operating Procedure 5.7, we may nonetheless consider as persuasive their compelling reasoning in factually analogous situations. See City of Newark, N.J. v. U. S. Dept. of Labor, 2 F.3d 31, 33 n.3 (3d Cir. 1993); Photomedix Inc. v. St. Paul Fire & Marine Ins. Co., 2008 WL 324025 at * 20 n.38 (E.D. Pa. 2008).

      . An employee is not immune from civil liability to a co-worker for an “intentional wrong.” See 77 P.S. §§72 See also, Martin v. Lancaster Battery Co. Inc., 530 Pa. 11, 15 n.5, 606 A.2d 444, 447 n.5 (1992) (“The Workmen’s Compensation Act does not preclude an action at common law for intentional wrongs committed by fellow employees.”). Petrochko has not alleged, nor does the summary judgment record remotely suggest, that Calzóla intentionally injured Petrochko.


author: BALDI, J,

text:
    Bartolewska v. Plappert
    C.P. of Bucks County,
    no. 2007-09116-35.

      Marshall E. Kresman, for appellant.

      Kimberly Boyer-Cohen, for appellee.
    August 12, 2010
   BALDI, J,

This litigation arises out of a motor vehicle accident, in which James Plappert (appellant) struck the rear of Paulina Bartolewska’s (appellee) vehicle on November 30, 2005, resulting in injuries to appellee. On November 18,2009, a jury returned a verdict in favor of appellee, awarding $6,422 for her medical bills, and $275,000 for her past and future pain and suffering. On November 25, 2009, appellant filed post-trial motions, but failed to serve same upon this court. In an order dated December 24, 2009, this court ordered the parties, with respect to each issue raised, to identify how and when each issue and/or claim of error was preserved pursuant to Pa.R.C.P. 227.1, with citations to the record, and stated that failure to specify the grounds for relief would result in waiver of the claim(s) and denial of post-trial relief. Post-trial motions were later denied on April 9, 2010. Thereafter, appellant filed a timely notice of appeal to the Superior Court and a timely concise statement of matters complained of on appeal. In accordance with Pa.R.A.P. 1925(a), we file this opinion.

STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Appellant has raised the following issues on appeal:

(1) Whether this court erred in allowing Anca Bereanu M.D. to testify as to the permanency of appellee’s injuries when Dr. Bereanu’s testimony exceeded the fair scope of her expert report and unfairly prejudiced appellant, and whether this court erred in finding that appellant failed to properly preserve his obj ection to Dr. B ereanu’s testimony regarding permanency;

(2) Whether this court erred in precluding testimony and/or evidence that appellee was fired from her job for reasons other than as a result of her injuries, due to the fact that Dr. Bereanu and the appellee herself opened the door to the presentation of such testimony and/or evidence;

(3) Whether this court erred in denying appellant’s request for a new trial or substantial remittitur where the jury award of $275,000 for pain and suffering which appellant contends was plainly and shockingly excessive and against the weight of evidence.

DISCUSSION

The first issue raised by appellant in this appeal is whether the court erred in allowing one of appellee’s experts and treating physicians, Dr. Anca Bereanu, to testify as to the permanency of appellee’s injuries. Appellant also raised this issue in his post-trial motions, but contrary to this court’s order, appellant failed to identify, in his post-trial motions, where in the trial record his objection to this testimony was preserved.

That notwithstanding, we have closely reviewed the transcripts of the trial proceedings, including the transcripts of the videotaped deposition of Dr. Bereanu, and find appellant’s contention of error to be without merit for several reasons. First, appellant failed to properly preserve his objections to the specific questions regarding permanency during the videotaped deposition which was later introduced at trial for the benefit of the jury. The transcript of that deposition indicates that appellant did not object to the questions asked of Dr. Bereanu regarding the permanency of plaintiff’s injuries. See N.T. 6/26/09, pp. 72-74. Although we do note that appellant made one single objection at the outset of Dr. Bereanu’s testimony, this objection was in no way a continuing objection. Our Superior Court has held that a party is required to make specific objections in order to avoid waiver of such an objection. See Bell v. City of Philadelphia, 341 Pa. Super. 534, 491 A.2d 1386 (1995). It is insufficient to raise one general objection at the outset, fail to object to subsequent specific questions, and then raise objections at a later time. “To avoid waiver, a party must make a timely objection . . . Timeliness requires a specific objection at the proper stage in the questioning of a witness.” Id. at 542, 491 A.2d at 1390. Appellant’s failure to timely object serves as a waiver of this issue.

Second, appellant argues that Dr. Bereanu’s testimony regarding permanency unfairly prejudiced appellant because appellant was deprived an opportunity to explore, respond to and defend against Dr. Bereanu’s permanency opinions. Dr. Bereanu was one of appellant’s treating physicians who was called as an expert witness. She was not an expert witness who was retained solely for the purpose of litigation. See N.T. 6/26/09, pp. 21, 46, 49, 53 and 65. Her opinions were not developed in anticipation of litigation, and therefore, pursuant to Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 664 A.2d 525 (1995), only the general discovery obligations of Pa.R.C.P. 4003.1 were applicable to the physician’s testimony. Furthermore, appellant was on notice that permanency was an issue for trial, as the issue of permanency was raised in the report of another treating physician of appellee’s, Dr. James Brady, and therefore plaintiff cannot seriously claim that he was “surprised” and unfairly deprived of an opportunity to rebut Dr. Bereanu’s testimony. N.T. 11/16/09, p. 37. Finally, we note that it appears that the report appellant complains of was submitted in June 2009, approximately five months prior to the trial date, which was more than sufficient time for appellant to take steps to respond to and rebut both physicians’ opinions regarding permanency. Accordingly, we find that this contention of error has no merit.

Appellant next argues that this court improperly precluded testimony and/or evidence that appellee was terminated from her employment due to misstatements regarding her prior work experience as a bartender, rather than as a result of her injuries. Again, although appellant raised this issue in his post-trial motions he failed to identify for the court where in the trial record this ruling was made and where appellant preserved his objection(s). Our review of the transcript of the proceedings indicate that appellant sought to introduce this evidence by impeaching appellee on cross-examination with a form completed by appellee’s employer in response to an unemployment compensation claim filed by appellee. See exhibit D-4. On the form, appellee’s former employer had made the following notation in regards to the reason for appellee’s separation from employment: “falsifying records. Had no prior bartending experience.” It must be noted that the appellant did not intend to call the employer and present live testimony, subject to cross examination, but rather appellant intended on bringing out during cross-examination, the employer’s written response to appellee’s claim for unemployment compensation.

We found that this line of questioning was irrelevant to the issues at trial, due to the fact that appellee did not present a wage loss claim to the jury. Had a wage loss claim been submitted to the jury, information regarding the reasons why appellee had been terminated from her employment would have been relevant. However, in this case, the discrete issue regarding whether or not appellee had actually been terminated for lying about her work experience was simply irrelevant.

We recognize that Pa.R.E. 607 allows any party to attack the credibility of a witness by any properly admitted evidence relevant to that issue; however, we note that impeachment methods are subject to Pa.R.E. 401 and 402, regarding the admissibility of relevant evidence. At trial, only relevant evidence is admissible, that is, only evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. See P.R.E. 401. The issues regarding appellee’s employment termination had little to no relationship to the issues in the case at trial. Furthermore, although the credibility of a witness may be impeached at trial, Pennsylvania law “does not permit the impeachment of a witness on collateral matters; the grounds for contradicting a witness must be germane to the issues at trial.” See McGoldrick v. The Pennsylvania Railroad Company, 430 Pa. 597, 600, 241 A.2d 90, 92 (1968); and Walley v. Iraca, 360 Pa. Super. 436, 444, 520 A.2d 886, 890 (1987). In McGoldrick, our Supreme Court stated:

“It is a well recognized principle of law that a witness may not be contradicted on ‘collateral’ matters. Zubrod v. Kuhn, 357 Pa. 200, 53 A.2d 604 (1947). As we stated in Commonwealth v. Petrillo, 341 Pa. 209, 223, 19 A.2d 288, 295 (1941): ‘No witness can be contradicted on everything he testified to in order to ‘test his credibility. ’ The pivotal issues in a trial cannot be ‘sidetracked’ for the determination of whether or not a witness lied in making a statement about something which has no relationship to the case on trial.’ Contradicting evidence is ‘collateral’ if it may not be admitted at trial for any purpose independent of the contradiction. Commonwealth v. Petrillo, supra at 224, 19 A.2d at 295; Commonwealth v. Neill, 362 Pa. 507, 521, 67 A.2d 276, 282 (1949) (concurring opinion); 3 Wigmore, Evidence, §1003 (3d ed. 1940).” McGoldrick, at 600, 241 A.2d at 92.

At trial, the undersigned stated the following regarding the impeachment issue:

“I’m going to state on the record for counsel’s benefit questions involving former employment . . . I’ve explained to counsel, certainly there are issues that can be brought out with respect to the plaintiff’s ability to work in terms of her physical ability. That’s certainly relevant. I have instructed defense counsel that she may not make reference to whether or not the plaintiff was discharged from her former employment because of a misstatement on her application. In other words, I was shown the application that she made, she filed. Apparently there was an unemployment case that followed the firing. Apparently that was argued. I think she was successful in the unemployment case.
“My concern —and I’ve explained to counsel, number one, plaintiff is not making a wage loss claim. So whether or not she’s able to work in that job or not able to work in that job is only relevant to the extent that it has to do with her physical issues, limitations, and I am concerned that if counsel is allowed to say isn’t it true you were fired because of a misstatement on your employment application, that that would be grossly unfair. The employer is not here to cross-examine. Furthermore, it would be ludicrous for us to turn this trial into a lawsuit and a fight over that collateral issue. It would besmirch the plaintiff’s character so that she would have to defend herself, and we would ultimately have to have a trial on whether or not she in fact accurately put forth information in her employment application.
“So those areas, I warn counsel to stay away from them. Don’t bring them up and don’t attack the plaintiff’s credibility using what her former employer tried to use to defend the unemployment claim. I think that makes it clear, counsel.” N.T. 11/17/09, pp. 2-4.

Appellant’s counsel went on to question the appellee, and brought out information that appellee and her employer had different views as to the true reasons for her discharge, and that appellee had actually succeeded in her unemployment claim case against her employer and was awarded unemployment. N.T. 11/17/09, pg. 7. The fact that another fact-finder in another hearing had already found the appellee had not made material false statements on her employment application further supports this court’s ruling that the issue of appellee’s employment termination was irrelevant and collateral to this issues in this case and appellant’s attempt to bring in the former employer’s self-serving written statement without presenting the employer live to be cross-examined was improper, and to admit the hearsay into evidence would have been error.

The final issue raise by appellant is whether or not this court erred in denying appellant’s request for a new trial on damages or a substantial remittitur of the verdict where appellant contends that the verdict was plainly and shockingly excessive. When a request is made for a new trial, the trial court must follow a two-step process. The trial court must determine whether a factual, legal or discretionary mistake was made at trial. Second, if the trial court determines that one or more mistakes were made, it must then evaluate whether the mistake provided a sufficient basis for granting a new trial. Bey v. Sacks, 789 A.2d 232, 236-37 (Pa. Super. 2001) citing Harman v. Borah, 562 Pa. 455, 469, 756 A.2d 1116, 1123 (2000). A new trial is not justified simply because an irregularity occurred at trial or a different judge would have ruled differently. The moving party must prove that he or she has suffered some prejudice by the error. Id. In the present case, the court reviewed appellant’s allegations of error when the request for a new trial was made in appellant’s post-trial motions, and determined that no error had occurred. Although appellant requests a new trial on the grounds that the damages awarded were excessive, “a new trial should be granted only in truly extraordinary circumstances, i.e., ‘whenthejuiy’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.’” Armbruster v. Horowitz, 572 Pa. 1, 9-10, 813 A.2d 698, 703 (2002) citing Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994).

We do not believe the jury’s verdict was excessive if they found the plaintiff credible. They obviously found her credible, and therefore, the verdict was a fair and reasonable reflection of appellee’s physical and emotional injuries. Appellee testified on direct examination that she has ongoing neck pain, of a pulsing and throbbing variety, with radiating pain down her arms and to her fingertips. N.T. 11/16/09, pp. 102-103. Although the pain is less severe than it was in the years following the accident, appellee testified that she continues to have constant pain, tingling sensations, and radiating pain that feels like a “bolt of electricity going down [her arm].” N.T. 11/16/09. p. 104. Appellee also testified that she continues to experience throbbing lower back pain, with radiating pain down both her legs. N.T. 11/16/09, pp. 105-106.

The effect of these physical injuries has resulted in appellee’s inability to sit in one position for a long period of time without incurring pain, study for school tests, write with her right hand, or run, jog, or be physically active, which she used to do frequently. N.T. 11/16/09, p. 105. Appellee further testified that she is unable to do tasks around the home, and that she used to be an active, fit, and happy-go-lucky person before the accident, but because of the constant pain she now feels like she is depressed and in the physical condition of someone much older than her age of 29. Id. at 110-11. Appellee experiences depression because of the constant pain, and anxiety due to the fact that she feels she will be unable to start a family, or pursue a marital relationship due to her physical limitations. Id. at 111-12.

Two of her treating physicians, Dr. James Brady and Dr. Anca Bereanu, testified regarding the serious permanent nature of plaintiff’s injuries. Dr. Brady, the appellant’s treating chiropractor, opined that appellee suffered from “right C-4, C-5 radiculopathy, left C-6 radiculopathy, bilateral L-4 and L-5 radiculopathy, which is all in [his] opinion permanent in nature because the nerves have been damaged now for four years, disc bulges at C-5, C-6, C-7 and at L-4 and L-5, chronic sprain and strain which has damaged the tendons and connective tissues and ligaments in the neck and the lower back, and myofascitis of the cervical and lumbar pelvic spine, right shoulder pain and pain into the right arm with numbness and tingling.” N.T. 6/30/09, p. 45. Dr. Brady further stated that he “believed that since [his examination of appellee] is approximately four years after the accident, her injuries are permanent in nature due to her bulges, her radiculopathies and her chronic sprain and strain and her limitations in her daily life.” Id. at 48-49.

Likewise, Dr. Bereanu testified that an EMG test with the appellee showed “a right C-4 and C’-5 active radiculopathy, a C-6 radiculopathy and a bilateral L-4, L-5, which stands for lumbar number 4, number 5, active radiculopathy.” N.T. 6/26/09, pp. 58-59. Bereanu went on to testify that “radiculopathy is an abnormal process, a disorder or a disease which involves the nerve roots ... [it] is always a permanent injury in the sense that we know, as far as it is at present moment, that super specialized cells, such as the neurons, once they are damaged, they do not regenerate. So, in other words, we keep losing neurons as we live through life, as an aging process, and, then if there is a disease or if there is trauma, a radiculopathy is a permanent loss of nerve fibers.” N.T. 6/26/09, p. 60. Dr. Bereanu’s diagnosis of appellee included cervical radiculopathy, lumbosacral radiculopathy, and cervical, thoracic and lumbar sprain and strain and posttraumatic myofasctis, as well as status post concussion. N.T. 6/26/09, p. 67.

Based on the foregoing testimony, this court finds that the record contains more than sufficient evidence to support the jury’s finding that appellee suffered great pain and discomfort as a result of the motor vehicle accident, and will continue to experience this pain and discomfort in the future. Accordingly, the jury was entitled to find that her physical injuries have affected her daily physical and emotional life.

The standard we must use in determining whether remittitur should be granted is whether the award of damages falls within the uncertain limits of fair and reasonable compensation or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake or corruption. Haines v. Raven Arms, 536 Pa. 452, 640 A.2d 367 (1994). Unless the circumstances of the award cry out for judicial interference, it is the duty of this court to enforce the jury’s verdict. Daley v. John Wanamaker Inc., 317 Pa. Super. 348, 352, 464 A.2d 355, 358 (1983). We have no reason to find that the jury’s verdict was not based upon the evidence and we do not believe the verdict represents the jury’s prejudice, partiality, mistake or corruption. See Haines v. Raven Arms, 536 Pa. 452, 640 A.2d 367 (1994).

Based on all of the above, we find the issues which appellant has raised in this appeal lack merit.

      . At the beginning of the doctor’s videotape deposition, appellant’s counsel stated, with regard to the issue of permanency, the following: “And I will just make an objection on the record at this point. On June 19 a report from the doctor was supplied to me dated June 12, 2009. It was supplied after this case was praeciped for trial and after discovery was foreclosed. I object to any mention of permanency of the injuries as the same was not included in the previous records.” Plaintiff’s counsel then offered a response to this statement and there was no agreement by counsel that an issue was preserved for trial or that appellant’s counsel need not make timely objection when questions were asked.

      . Appellant’s concise statement of matters complained of seems to indicate that they intend to argue that the jury was not presented sufficient evidence to find in appellee’s favor. To the extent that appellant is raising that argument, we note that appellant failed to present a motion for directed verdict or non-suit to this court following the conclusion of appellee’s case, and therefore, pursuant to Bennyhoff v. Pappert, 790 A.2d 313 (Pa. Super. 2001), such a claim would be waived on appeal.


author: SCHMEHL, J,

text:
    In re Y.S. and J.A.H.

      C.P. of Berks County,
    nos. 81056 and 81057.

      Jennifer L. Grimes, for Berks County CYS.

      Wendie L. Ziegler, guardian ad litem for Y.S. and J.A.H.

      Jonn J. Grenko, for Y.H.
    September 1, 2010
   SCHMEHL, J,

This matter came before the court on petition by the Berks County Children & Youth Services (BCCYS) to terminate the parental rights of Y.H. (Mother) to the children Y.S., date of birth November 21,2001, and J.A.H., date of birth September 18, 2007. The petitions were filed on the grounds set forth in 23 Pa.C.S. §2511(a)(1), (2), (5) and (8). Following the hearing on July 19, 2010, at which Mother was present with court-appointed counsel, the court terminated Mother’s rights to the children. Mother filed a timely appeal.

Paragraph 2511(a)(1) provides that parental rights in regard to a child may be terminated on the grounds that a “parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.” Paragraph (a)(2) provides that parental rights may be terminated on the grounds that “[t]he repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.” Paragraph (a)(5) provides for termination of parental rights when a “child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.” Paragraph (a)(8) provides that parental rights may be terminated on the grounds that “[t]he child has been removed from the care of the parent by the court or under a voluntary agreement with an agency, 12 months or more have elapsed from the date of removal or placement, the conditions which led to the removal or placement of the child continue to exist and termination of parental rights would best serve the needs and welfare of the child.”

The family first came to the attention of BCCYS on May 8, 2003 when the agency received a report that Mother tossed Y.S. onto a hospital couch while waiting for a mental health evaluation. Mother admitted that she threw her daughter because she was mad at her. A second anonymous report was received on September 26, 2003 stating that Mother abuses her children physically. The case remained closed due to the lack of specific allegations. The next incident report occurred on April 28,2005 when the agency was advised that Mother did not supervise the children and that the children were seen hanging out the window. There were also concerns that Mother and her then boyfriend were abusing drugs. On July 12, 2005, the agency received a report that Mother’s boyfriend was observed to have been grabbing Y.S. and threatening, with details, to kill the child. The agency referred the family to the Youth Advocate Program for casework counseling, parenting education, and family support services; however, the case remained closed.

On August 18,2005, the agency received a report that the family was receiving services from Child Family Support Services, that Y.S. was totally out of control, disrespectful, and destructive and that Mother and her boyfriend could not parent the child. The referent suggested that the child should be placed by BCCYS to assure the child’s safety. During an ensuing investigation, there was concern that Mother’s boyfriend engaged in inappropriate touching of Y.S., then age three, but due to the child’s poor communication skills and inability to confirm or deny inappropriate contact, the report was unfounded. Mother was advised to not allow boyfriend any unsupervised contact with the children; however, he was observed to be in her home with the children when she was not home. Mother was referred to Service Access Management for wrap-around services and the family was open for general protective services.

For the next year to year-and-a-half, Mother and family participated in casework services, family based services, mental health treatment, transportation assistance, parenting education, and supportive services. For a period of time, Mother was compliant and even reported breaking off her relationship with her boyfriend; however, problems did continue.

On March 15,2006, a 27- inch television fell on Y.S.’s ankle because the child was playing with the television cart. The family was referred for casework services, parenting instruction, and supportive services. Mother was hostile and uncooperative, complaining that she did not need the services but, rather, the child was the problem. Mother was easily frustrated and became angry when asked to do something that she did not want to do.

On December 14, 2006, the agency received a report that the child had been jumping on a couch and fell. Mother did not take the child to the doctor until the following day. Y.S.’s arm was broken and required surgery. On January 9, 2007, the agency received a report that Y.S. fell off of the bed onto a metal frame, causing a need for stitches. The referent expressed concern that having two special needs children residing with Mother, who was herself limited, was a safety issue. On the same day, it was also reported that Mother had failed to ensure Y.S.’s attendance at necessary therapy appointments. The child’s therapist reported that Mother “does not get it” and the therapist was afraid the child was going to hurt herself badly one day. Mother did not seem to understand her own limited capacity and blamed the 5-year-old child for not being potty-trained.

January 2007 brought a series of incident reports reflecting foul behavior and language from Y.S. directed toward peers and staff at the Second Street Learning Center. Mother was reported as swearing at teachers and directing that nobody forces Y.S. to do anything. Mother threw a temper tantrum at the Public Welfare Office on March 29, 2007 and admitted that she was pregnant, overwhelmed, and unable to control the children’s behaviors. She subsequently signed a voluntary 30-day placement agreement. Despite being provided various support services over a year-and-a-half, it was apparent that Mother was unable to utilize or grasp any of the parenting techniques offered.

On April 30, 2007, it was reported that the children had been locked in a closet while in their mother’s care and that Y.S. slept in the closet on multiple occasions. Y.S. displayed physically aggressive behaviors warranting mental health treatment at a young age, but Mother did not ensure her participating in mental health services due to her failure to attend all scheduled appointments. Mother also failed to follow any directives or recommendations made by the therapists, family specialists, or parenting educators. Over time, Mother became increasingly uncooperative and hostile. It was clear that she was unable to manage the children’s behaviors.

A dependency hearing was held on April 25, 2007. Mother was present with counsel. The court concluded that Y.S. was a dependent child and legal custody was transferred to BCCYS for placement purposes. Visitation was to be at the discretion of BCCYS in consultation with the child’s guardian ad litem. Mother was ordered to cooperate with a variety of services, including casework, mental health evaluation and treatment, and parenting education.

On September 18,2007, Mother gave birth to her third child, J.A.H. Upon the child’s release from the hospital, he was placed in foster care with his maternal grandmother. Mother again signed a voluntary 30 day placement agreement. On October 10, 2007, J.A.H. was adjudicated dependent, with temporary legal custody transferred to BCCYS for placement purposes. Mother was again ordered to cooperate with a variety of services.

Between September 2,2008 and June 1,2010, a number of permanency review hearings were held. At each hearing, it was determined that Mother had made minimal progress toward alleviating the circumstances which necessitated the original placement. Throughout this time period, the primary permanency goal was return to home with a concurrent goal of place in adoption.

Throughout the history of this case, Mother has not maintained stable housing, employment or relationships. Since February 2009, she has had five addresses, and up to the date of the hearing BCCYS was not aware of her current whereabouts. She was often behind on her rent and she lost welfare benefits due to a failure to attend an education program sponsored by the department of public welfare. She has had a poor history with men and typically became involved with men with extensive histories of crime and domestic violence.

While Mother was very compliant in keeping all of her casework counseling appointments in 2006, she did not maintain compliance with the Department of Public Welfare, mental health evaluations, wrap around services, and Social Security benefits. Mother demonstrated great difficulty gaining control of her children. The home lacked structure and consistent and appropriate discipline practices. Mother was not receptive to suggestions by her caseworker and slowly deteriorated in her compliance and ability to recall information. Y.S. was still in diapers at the age of 5.

In 2007, Mother continued to participate in casework services, but her progress continued to be poor. She continued to have difficulty controlling her children and continued to fail to respond to suggestions on how to redirect her children. Signature Family Services scheduled multiple appointments at various providers to obtain mental health services for Y.S., but Mother continually cancelled the appointments. In 2008, the caseworker documented many attempts to assist Mother in accessing community resources; however, Mother was resistant. She began to exhibit increasingly hostile behaviors and failed to recognize what services she needed to remediate the reasons that her children were removed from her care.

Initially, Mother was resistant to mental health treatment and refused to engage in services. Over time, she attended services but made minimal progress due to her intellectual and mental health limitations impairing her ability to absorb and utilize coping skills. A psychological evaluation completed in February 2008 revealed Mother to be a “slow learner” with a third grade reading ability. She has an IQ of 70. She struggles with identifying problems and exhibits nonconforming behaviors. She has had a difficult time understanding why her children were removed from her care, and because of her underlying antisocial personality she is either unable or unwilling to remediate the conditions which caused the children to be removed from her care. The Ph.D. evaluator believed that Mother would have significant difficulty being an effective parent, even with very intensive parenting classes.

In July 2008, Mother participated in a bonding evaluation with Y.S., which revealed that the mother/daughter relationship was “clearly very negative in nature.” Mother displayed a minimal level of attachment to Y.S. Furthermore, Mother’s below average cognitive abilities were found to interfere with her being able to exercise appropriate judgment and make appropriate decisions. Mother displayed significant memory deficits, anger management issues, and a lack of motivation to work toward life goals. The evaluator recommended that Y.S. not be returned to Mother’s care and that visitation be gradually diminished to the point of cessation.

Throughout the course of Mother’s participation in parenting instruction and supervised visitation, it was clear that Mother was unable to manage Y. S ’ s behaviors or follow the visit supervisor’s recommendations. Over time, the quality of visitation went from good to fair to poor. Mother was unable to internalize parenting concepts and be consistent in her parenting style.

Y.S. was identified as a special needs child at age two. While still having difficulties, she has made significant social and emotional strides and her therapist has described her progress as amazing. She continues to make progress and have a positive adjustment in her placement setting. J.A.H. is described as a happy, lovable child who has been in placement with his maternal grandmother since birth. He is very comfortable in his home.

It is clear to the court that Mother has been unable to perform her parental duties. She is unable to control the behaviors of the children, to comprehend and implement recommended parenting techniques, and to control her aggression. The children are doing as well as can be expected in their placement settings. Giving primary consideration to the children’s developmental, physical and emotional needs and welfare, it is clear to the court that Mother’s parental rights must be terminated. After years of services, Mother has made no progress in remedying the conditions leading to the children’s placement and giving her more time will only infringe upon the children’s right to fulfillment of their potential in a permanent, healthy, safe environment.

For the foregoing reasons, the court entered its order of July 19, 2010 terminating the parental rights of Mother to the children, Y.S. and J.A.H.

       Mother has a third child, Y.H., date of birth December 31, 2003, that is not subject to these proceedings because that child has been transferred to the custody of his father. All three of Mother’s children are by different men.