author: MINORA, J,

text:
    Kapacs v. Martin

      C.P. of Lackawanna County,
    no. 04 CV 5151.

      Joseph Quinn, for plaintiffs.

      Benjamin Post and Dan Rovner, for defendants Martin, Geisinger Health System and Geisinger Clinic.

      Mark Perry, for defendants Roe and Great Valley Cardiology.

      John Durkin, for defendant Moses Taylor Health Care System.

      Michael Perry, for defendant Moses Taylor Hospital.

      Daniel Brier, prior counsel for defendant Geisinger.

      Timothy Foley, prior counsel for Moses Taylor Hospital.
    June 6, 2006
   MINORA, J,

I. INTRODUCTION

Before the court are several sets of preliminary objections submitted by the defendants herein to the plaintiffs’ amended complaint filed August 25,2005. The court has heard oral arguments of counsel and reviewed the parties’ written objections, responses, and briefs rendering this matter appropriate for disposition. The underlying circumstances of this matter are briefly presented below.

II. STATEMENT OFTHE CASE

The plaintiffs, John K. Kapacs, administrator of the estate of Donna M. Kapacs, decedent, and John K. Kapacs, individually, Dawn Marie Schuster and Tracy Kapacs initiated this action by complaint filed on December 3,2004. John K. Kapacs is the decedent’s surviving spouse, while Dawn Marie Schuster and Tracy Kapacs are the decedent’s surviving children. All defendants filed preliminary objections to the plaintiffs’ complaint. By order of this court rendered by Judge Corbett dated, July 12, 2005, the preliminary objections of defendants were granted in the form of a motion to strike, or in the alternative, a more specific pleading. The court permitted the plaintiffs to file an amended complaint within 45 days of said order to address with specificity the averments contested. The order further granted the defendants’ Geisinger Clinic, Geisinger Health System Foundation and Great Valley Cardiology Associates demurrers to corporate negligence claim. (See memorandum 04 CIV 5151 C.C.P. Lacka. Cty. (Judge Corbett, July 12,2005).) The remaining preliminary objections were denied. As a response to the court’s order, the plaintiffs filed their amended complaint on August 25, 2005, which is the basis of all the defendants’ preliminary objections to the amended complaint which are presently before the court herein. The factual allegations of the plaintiffs’ amended complaint are summarized as follows:

In January of 2002, the deceased, Donna Kapacs, underwent a mitral valvuloplasty in Philadelphia at the University of Pennsylvania performed by Dr. Howard Herman. (See plaintiffs’ amended complaint ¶28.) Donna Kapacs is reported to have recovered well following the procedure. (Id. at ¶29.)

On November 6, 2002, the decedent arrived at the Moses Taylor Hospital Emergency Room complaining of shortness of breath and cough. (Id. at ¶30.) After an EKG, she was diagnosed with hypoxemia, was treated and discharged (bronchitis). (Id.) Again on November 29,2002, Donna Kapacs experienced shortness of breath, phlegm and coughing. She was transported to the Moses Taylor Hospital by ambulance and arrived approximately 10:15 p.m. (Id. at ¶34.) It is reported that she showed no improvement to her bronchitis condition. (Id. at ¶35.) A physical exam was performed, tests were administered, and an x-ray and EKG were taken. (Id. at ¶¶37-40.) The attending physician concluded that Donna Kapacs was suffering from hypoxemia and respiratory distress and she was treated for the same. (Id. at ¶¶41, 42.) Dr. Richard Martin was called November 30,2002 at 1:30 a.m. and ordered that Kapacs be admitted to the Moses Taylor Hospital as a result of her respiratory condition. She was admitted that morning at 3:15 a.m. As alleged in the amended complaint, Donna Kapacs remained an inpatient at the Moses Taylor Hospital from November 30,2002 through December 3,2002. Further alleged, during this period Kapacs was monitored and treated by the agents and employees of the Moses Taylor Hospital, Moses Taylor Health Care System, and Great Valley Cardiology with all progressions and changes noted. On the morning of December 3,2002, Dr. Martin made an assessment of the decedent’s condition finding COPD (chronic obstructive pulmonary disease) and myocardial infarction. (Id. a^98.) On December 3,2002, Kapacs was transferred to Mercy Hospital in Scranton for a cardiac catheterization procedure. (Id. at ¶99.) After the procedure was performed Kapacs was transported back to the Moses Taylor Hospital by ambulance that afternoon. (Id. at ¶107.)

On the evening of December 3, 2002, Kapacs began to experience pain which continued through December 4, 2002. (Id. at ¶¶110-18.) An un-timed note made on December 4 by Dr. Martin stated that Kapacs had valvular heart disease and single vessel coronary artery disease. (Id. at ¶124.) The progression notes indicated that her condition was stable at midnight December 5, 2002. (Id. at^25.) During the morning hours of Decernber 5, 2002, Kapacs was administered her medications and her progression notes made by Dr. Martin recorded her condition as stable. (Id. at ¶141.) In the following hours leading into December 6,2002, Kapacs’ condition worsened as she was experiencing pain, discomfort, nausea and vomiting and she exhibited changes in her blood chemistry. (Id. at ¶¶144-62.) Kapacs continued to suffer back pain and pain at the groin site. (Id. at ¶ 172.) Neither Dr. Martin nor Dr. Roe were present during this time, yet both were contacted by phone in regard to Kapacs’ increased pain. (Id. at ¶¶175, 176.) Martin arrived at the hospital at 12:50 p.m. on December 6,2002, at which point he ordered a CT scan of the abdomen, pelvis and head to be performed and the reports completed that morning. (Id. at ¶¶181,184,187.) The results of the CT scan suggested a retroperitoneal hemorrhage. (Id. at^l88,189.) Notes were made by Dr. Paul Leiman from the abdominal and pelvic CTs indicative of retro-peritoneal hemorrhage. (Id. at ¶191.) At approximately 4:30 p.m. tests were ordered by Dr. Roe to be performed and labs taken, which were not drawn until 6:15 p.m. (Id. at ¶¶197, 206.) At 6:20 p.m. Kapacs went into cardiac arrest with no pulse and displayed signs of apnea/ apneic. (Id. at ¶210.) Kapacs’ family was present in the room during this time and Tracy Kapacs initiated her mother’s resuscitation. (Id. at ¶210.) As described in the amended complaint, Kapacs was administered CPR and resuscitation from 6:33 p.m. to 7 p.m. when she flat-lined and efforts were terminated and Donna Kapacs was pronounced dead. (Id. at ¶¶213-15.) An autopsy was performed by John J. Shane M.D. after the body was exhumed. Dr. Shane is reported to have determined that Donna Kapacs died as a result of massive retroperitoneal hemorrhage secondary to an iatrogenic aortic perforation during cardiac catheterization. (Id. a^224.) The plaintiffs assert that the death was preventable had the defendants responded to the deceased’s symptoms and treated her condition properly. (Id. at ¶¶225-26.)

The plaintiffs filed their amended complaint to this action on August 25,2005 which contains allegations of medical negligence of all defendants, wrongful death, and survival action asserted against all defendants and a count of negligent infliction of emotional distress declared against all defendants. In total, the amended complaint is comprised of 95 pages, including separate paragraphs, of allegations against the defendants.

The first count is alleged in negligence against defendant, Richard A. Martin M.D., individually and as the agent of the Moses Taylor Hospital, Moses Taylor Health Care System, Geisinger Clinic, and Geisinger Health System Foundation. (See ¶233 of plaintiffs’ amended complaint.) Paragraph 233 and subparagraphs (a) through (ooo) are alleged against defendant Richard Martin M.D. individually and as the agent and/or ostensible agent of the Moses Taylor Hospital, Moses Taylor Health Care System, Geisinger Clinic and Geisinger Health System Foundation. Paragraph 234 and subparagraphs (a) through (ooo) are alleged against defendant Thomas Roe M.D. individually and as the agent of the Moses Taylor Hospital and Moses Taylor Health Care System and Great Valley Cardiology. Paragraph 235 with subparagraphs (a) through (kkkkkk) are alleged against defendant Moses Taylor Hospital, by and through its employees, servants and agents and/or ostensible agents, including but not limited to Richard A. Martin M.D., Thomas M. Roe M.D., Brandy Price R.N., and Sylvia Pursche R.N. Paragraph 236 and subparagraphs (a) through (kkkk) are alleged against defendant Moses Taylor Health Care System by and through its employees, servants and agents and/or ostensible agents, including but not limited to Richard A. Martin M.D., Thomas M. Roe M.D., Brandy Price R.N., and Sylvia Pursche R.N. Count II alleges a survival action brought by the plaintiffs herein against all defendants. Paragraphs 245 and 246 contain the allegations of the survival action. The final count of the amended complaint, Count III, alleges negligent infliction of emotional distress brought by all plaintiffs herein against all defendants. The allegations for the claim of negligent infliction of emotional distress are asserted in paragraphs 247 through 254 of the amended complaint.

Preliminary Objections in the Nature of Motions To Strike

The Commonwealth of Pennsylvania is a fact pleading state whereby the complaint must provide the defendant notice of the basis of the claim as well as a summary of the facts essential to support that claim. Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa. Super. 293, 464 A.2d 1349 (1983); Latniak v. Koch, 70 D.&C.4th 489, 494 (2004). Preliminary objections in the form of motions to strike items in a complaint per Pa.R.C.P. 1028(a)(3) can be asserted for lack of specificity of pleading pursuant to Pa.R.C.P. 1019(a). A motion to strike can also be asserted for the failure of a pleading to comply with a rule of law or rule of court according to Pa.R.C.P. 1028(a)(2). The Rules of Civil Procedure require that all the material facts on which a cause of action or defense is based shall be stated in a concise and summary form. See Pa.R.C.P. 1019(a); Yacoub v. Lehigh Valley Medical Associates P.C., 805 A.2d 579 (Pa. Super. 2002). The Superior Court of Pennsylvania notes that the question presented by Pa.R.C.P. 1028(a)(3) is “whether the complaint is sufficiently clear to enable the defendant to prepare his defense or... [if it] informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” McNeil v. Jordan, 814 A.2d 234, 237-38 (Pa. Super. 2002); Ammlung v. City of Chester, 224 Pa. Super. 47, 59 n.36, 302 A.2d 491, 498 n.36 (1973) (quoting 1 Goodrich-Amram §1017(b)-9). To determine if a paragraph contains the appropriate specificity, the court looks not only to the particular paragraph at issue, but also to that paragraph in the context of the other allegations in the complaint. Yacoub, supra at p. 589.

The trial court has broad discretion in determining the amount of detail that must be pleaded since this is not something capable of precise measurement. Pike County Hotels Corp. v. Keifer, 262 Pa. Super. 126, 396 A.2d 677 (1978). It is not necessary to plead evidence which can be developed through discovery. Local No. 163, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965). See also, Commonwealth v. Schlittler, 104 Lacka. Jurist 112, 115-16 (2003). Yet, when determining whether the averments of the complaint are sufficient, a court must ensure that the challenged averments present no risk of a future, unexpected amendment to the complaint based upon new facts after the statute of limitations has run. Boyd v. Somerset Hospital, 24 D.&C.4th 564, 566-67 (1993); Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), reh’g denied; see also, Clarkson v. Geisinger Medical Center, 46 D.&C.4th 431 (2000).

The above listed defendants collectively have all submitted to the court preliminary objections to the amended complaint in the form of motions to strike for failure to conform to rule of law or rule of court pursuant to Pa.R.C.P. 1028(2), specifically this court’s order dated July 12, 2005. Additionally, defendants have brought a motion to strike for insufficiency of pleading pursuant to Pa.R.C.P. 1028(3).

Motions To Strike Pursuant to Pa.R.C.P. 1028(a)(2)

At the forefront of our discussion we shall first consider the affect of the July 12, 2005 order and whether the plaintiff has complied with this guiding instruction together with all procedural requirements. It is argued by the defendants that the included matter of the amended complaint extends beyond what is permissible according to the order, therefore triggering the defendants’ motions to strike for failure of pleadings to conform to a rule of law or rule of court.

It is well recognized that preliminary objections may be accepted for failure of a pleading to conform to a rule of law or a rule of court. Pa.R.C.P. 1028(a)(2). The Honorable Judge Corbett permitted the plaintiff to file an amended complaint within 45 days of said order addressing the specificity of the averments contested. (See order July 12,2005 as attached as exhibit “A”.) This order also sustained the defendants’, Geisinger Clinic, Geisinger Health System Foundation and Great Valley Cardiology Associates Inc., preliminary objections in the nature of a demurrer to the plaintiffs’ claim of corporate negligence. In regard to the corporate negligence claims asserted against defendants, Geisinger Clinic, Geisinger Health System Foundation and Great Valley Cardiology Associates Inc., the court’s intent is clearly stated by previous order to dismiss the claims of corporate negligence against these named defendants. We therefore find that any attempt to extend corporate liability against these defendants is a failure by the plaintiffs to comply with this Judge Corbett’s July 12, 2005 order. As has been previously stated in Oven v. Pascucci, 46 D.&C.4th 506 (2000), the cause of action of corporate negligence is “based upon the systemic or institutional negligence” of a hospital. See Kapacs v. Martin, 04 CIV 5151, C.C.P. Lacka. Cty. (Judge Corbett, July 12, 2005). We have determined that this cause of action is inapplicable given the pleadings of the plaintiffs, and such decision is the law of this case. Therefore we shall grant the defendants’, Geisinger Clinic and Geisinger Health System Foundation, motions to strike for failure to conform to a rule of court.

Geisinger Health System Foundation presented a demurrer to the amended complaint in regard to subparagraphs 238(rrr) and (sss) as insufficient to state a claim against it. We find that this objection is deemed moot due to our preceding determination, and is therefore dismissed.

The defendants, Moses Taylor Hospital, Moses Taylor Health Care System, Geisinger Clinic, and Great Valley Cardiology have filed preliminary objections in the form of motions to strike items in the amended complaint for lack of specificity per Pa.R.C.P. 1028(a)(2). The language contested by these objections is contained in ¶¶235-37, 239 asserting allegations of negligence against the defendants “including but not limited to” the defendants therein named. It is beyond cavil that, in a medical malpractice action catch-all allegations are not proper assertions of negligence as they do not apprise the defendant of his conduct that the plaintiffs allege as improper or negligent. Boyd v. Somerset Hospital, 24 D.&C.4th 564, 567-68 (1993); Latniak v. Koch, 70 D.&C.4th 489, 494 (2004). Pursuant to Pa.R.C.P. 1019(a), fact pleading is required. The Pennsylvania practice of fact pleading necessitates that the pleader define all the issues of the matter and “every act or performance essential to that end must be set forth in the complaint.” Santiago v. Pennsylvania National Mutual Casualty Insurance Company, 418 Pa. Super. 178, 185, 613 A.2d 1235, 1238 (1992); citing Pa.R.C.P. 1019; 4 Standard Pennsylvania Practice §21:32; Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677 (1978). The landmark case of Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), reh’g denied, permits an amended pleading where the language added amplifies the original complaint without prejudicing the opposing party. Yet, in the present matter the phrase “including but not limited to” allows the plaintiff far too much latitude to include activities and allegations not previously pled in this matter at some later point in the litigation to the detriment of the defendants. This phrase is insufficient to advise what acts by the defendants’ agents were improper, and furthermore, who the unidentified agents are. In an effort to afford the defendants the ability to properly defend the alleged accusations in this action, the use of the language “including but not limited to” as objected to in the pleadings must be stricken whenever it appears in the complaint of a plaintiff.

The defendants, Geisinger Clinic and Dr. Martin, challenge the language in ¶¶22 and 23 of the amended complaint which criticizes the Geisinger Clinic for acting by and through its “agents, servants and/or employees, Richard A. Martin M.D. and Thomas M. Roe M.D., and various nursing, medical and technical personnel....” The defendants maintain that this language is not sufficiently specific under the rules of procedure and moreover, they argue that the Clinic is unable to determine which agents, aside from Drs. Martin and Roe the defendant clinic is responsible for. It is well recognized that it is not necessary to plead evidence which can be developed through discovery. Local No. 163, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, supra. In reviewing the complained of language in ¶¶22 and 23, the defendant is put on notice that the plaintiff asserts an agency relationship regarding the named defendants and Richard A. Martin M.D. and Thomas M. Roe M.D. as well as nurses and medical and technical personnel. Therefore, we find this language to be sufficiently specific pursuant to our procedural rules as the defendant is capable of identifying these individuals through the discovery process as those involved in the care of decedent Kapacs.

Defendants, Moses Taylor Hospital and Moses Taylor Health Care System present motions to strike for failure of the pleading to conform to rule of law or rule of court pursuant to Pa.R.C.R 1028(a)(2). Moses Taylor Health Care System objects to language found in paragraph 16 of the amended complaint. The language of paragraph 16 of the original complaint referenced MTHCS as a “business entity and/or health care provider.” The added language of the amended complaint references MTHCS as a “business entity and/or comprehensive health care provider.” (emphasis added) Additionally, MTHCS complains that the averments of paragraph 236 exceed any permissible amendment by the July 12,2005 order. Concurrently, Moses Taylor Health Care System brings a demurrer for legal insufficiency of a claim for corporate negligence. We shall consider these issues at once.

The question which arises is whether the inclusion of the word comprehensive changes the cause of action alleged against MTHCS or simply elaborates the existing allegation. The Supreme Court has held in Connor v. Allegheny General Hospital, 501 Pa. 306, 310, 461 A.2d 600, 602 (1983), reh ’g denied, that “the right to amend should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party .... An amendment introducing a new cause of action will not be permitted after the statute of limitations has run in favor of a defendant.... This would constitute ‘resulting prejudice’ to the adverse party. However, if the proposed amendment does not change the cause of action but merely amplifies that which has already been averred, it should be allowed even though the statute of limitations has already run.” (citations omitted) (emphasis in original)

The doctrine of corporate negligence exists to maintain liability over a hospital should it fail to uphold the proper standard of care owed to its patients. Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), reh ’g denied. Furthermore, the Supreme Court states that under the doctrine of corporate negligence, the hospital maintains a number of duties including (1) the reasonable care and maintenance of safe and adequate facilities and equipment, (2) selecting and retaining only competent physicians, (3) overseeing all persons practicing medicine within the hospital walls as to care of patients, and (4) formulating, adopting and enforcing adequate rule and measures to ensure quality care of patients. Thompson, supra at 339-40, 591 A.2d at 707. The Thompson court recognized the corporate hospital’s role to include the total health care of its patients. Thompson, supra; see Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984).

The true issue at this point is the function of Moses Taylor Health Care System in terms of its operations and connection to the Moses Taylor Hospital. The added term comprehensive to the amended complaint in paragraph 16 is of little consequence to the responsibility which Moses Taylor Health Care System carries through its relationship with Moses Taylor Hospital. We are reminded that the trial court has broad discretion in determining the amount of detail that must be pleaded since this is not something capable of precise measurement. Pike County Hotels Corp. v. Keifer, 262 Pa. Super. 126, 396 A.2d 677 (1978). Yet, it is not necessary to plead evidence which can be developed through discovery. Local No. 163, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965). See also, Commonwealth v. Schlittler, 104 Lacka. Jurist 112, 115-16 (2003). Regarding the motion to strike for the pleading, particularly ¶¶16 and 236, to extend beyond the court order of July 12, 2005, said motion is denied as we find that the amended language does not change the original cause of action alleged against Moses Taylor Health Care System under Connor. Furthermore, in regard to the defendant’s demurrer to the claim of corporate negligence we find that it would be premature to dismiss this claim as further discovery is needed to fully appreciate the relationship of Moses Taylor Health Care System and Moses Taylor Hospital relative to the duties of a hospital facility.

The Moses Taylor Hospital presents a motion to strike items in the amended complaint for lack of specificity per Pa.R.C.P. 1028(a)(2) in regard to paragraphs 233, 234 and 235 as containing allegations of negligence different from, and in addition to, the elements of negligence contained in the original complaint. We find this argument to be meritless given the decision in Connor as discussed above. The additional allegations of ¶¶233-35 “simply specifies” other circumstances in which the defendant was negligent in this matter. Connor, supra at 310, 461 A.2d at 602. Pennsylvania is a fact pleading state whereby the complaint must provide the defendant notice of the basis of the claim as well as a summary of the facts essential to support that claim. Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa. Super. 293, 464 A.2d 1349 (1983). On the basis of the allegations set forth in the challenged paragraphs, we find that the averments are sufficient to give Moses Taylor Hospital notice for the basis of the claims and allow the defendant to formulate a defense. Therefore the motion to strike is denied.

Last, Great Valley Cardiology Associates Inc. and Thomas M. Roe M.D. move for the approval of the stipulation to striking subparagraphs (ppp) and (qqq) of paragraph 239 from the amended complaint. The plaintiffs and defendants Great Valley Cardiology Associates Inc. and Thomas M. Roe M.D. agree to strike said language by stipulation signed and dated by the parties November 1, 2005 and filed November 7, 2005. The language contained in theses subparagraphs is as follows: (ppp) In failing to enforce Thomas M. Roe M.D.’s compliance with the terms of the medical staff bylaws of the defendants, The Moses Taylor Hospital and Moses Taylor Health Care System; and (qqq) In failing to enforce the hospital rules and regulations relating to cardiac catheterization-induced complications. The motion for approval is granted. An appropriate order consistent with the foregoing memorandum follows.

ORDER

And now, to wit, June 6,2006, upon consideration of the preliminary objections of all defendants, and the written and oral arguments of counsel and in accordance with the preceding memorandum it is hereby ordered and decreed:

(1) Defendant’s, Geisinger Clinic, preliminary objections in the form of a motion to strike for failure of pleading to conform to a rule of court in regard to the corporate negligence claim is granted.

(2) Defendants Dr. Martin and Geisinger Clinic’s preliminary objection in the form of a motion to strike for lack of specificity in regard to ¶¶22 and 23 of the plaintiff’s amended complaint is denied.

(3) Defendant’s, Geisinger Health System Foundation, preliminary objection in the form of a motion to strike for failure of pleading to conform to a rule of court in regard to the corporate negligence claim is granted.

(4) Defendant Geisinger Health System Foundation’s demurrer to the amended complaint in regard to subparagraphs 238(rrr) and (sss) is dismissed.

(5) The defendants’, Moses Taylor Hospital, Moses Taylor Health Care System, Geisinger Clinic and Great Valley Cardiology, preliminary objections in the form of motions to strike items in the amended complaint for lack of specificity per Pa.R.C.P. 1028(a)(2), in regard to the language “including but not limited to” is granted.

(6) The defendant Moses Taylor Hospital’s motions to strike for failure of the pleading to conform to rule of law or rule of court pursuant to Pa.R.C.P. 1028(a)(2) in regard to language containing added allegations of negligence, specifically paragraphs 233,234 and 235 of the amended complaint is denied.

(7) The defendant Moses Taylor Health Care System’s motion to strike for failure of the pleading to conform to rule of law or rule of court pursuant to Pa.R.C.P. 1028(a) (2) in regard to language containing added allegations of corporate negligence, specifically paragraphs 16 and 236 is denied.

(8) The defendant Moses Taylor Health Care System’s preliminary objection in the nature of a demurrer on the issue of corporate negligence is dismissed.

(9) The defendant’s Great Valley Cardiology Associates Inc. and defendant’s Thomas M. Roe M.D. motion for approval of the stipulation to striking subparagraphs (PPP) and (qqq) of paragraph 239 from the amended complaint is granted.

      . See Latniak v. Koch, 70 D.&C.4th 489, 494 (2004) for standard in reviewing preliminary objections in the form of a motion to strike.

      . Geisinger Health System Foundation: The defendant GHSF submits a motion to strike ¶¶238 (ee), (rrr), (sss) and (ttt) pursuant to Pa.R.C.P. 1028(a)(2) as in violation of this court’s order of July 12, 2005. These subparagraphs arguably contain allegations of corporate negligence against GHSF asserting direct liability for the plaintiffs’ injuries. The language challenged by the defendant herein includes language from ¶238(66) which states, “In failing to maintain adequate physician and nursing coverage to manage cardiac catheterization complications”; 238(rrr) states, “In failing to enforce Richard A. Martin M.D.’s and Thomas M. Roe M.D.’s compliance with the terms of their employment contracts with the Moses Taylor Hospital”; ![238(sss) states, “In failing to enforce Richard A. Martin M.D.’s and Thomas A. Roe M.D.’s compliance with the terms of the medical staff bylaws of tal rules and regulations relating to cardiac catheterization-induced complications.”

        Defendants Dr. Martin and Geisinger Clinic contend that language from the amended complaint must be stricken for failure to comply with the court order of July 12, 2005, particularly ¶¶22, 23, and 237(vvv), (www), (xxx), (yyy) and (zzz), as it is believed that these paragraphs contain noninclusive allegations of agency and corporate negligence in regard to Geisinger Clinic extending beyond the order of July 12 sustaining preliminary objections to these claims. The particular language criticized in paragraphs 22 and 23 states that Geisinger Clinic, along with the other defendants, acted through their “agents, servants and/or employees, Richard A. Martin M.D. and Thomas M. Roe M.D. and various nursing, medical and technical personnel” while engaged in the treatment of post-surgery patients. The subparagraphs of 237(vvv) through (zzz) includes failures of Geisinger Clinic to enforce Dr. Martin and Dr. Roe to comply with terms under their contracts with Moses Taylor Hospital, medical staff bylaws, hospital rules and regulations of cardiac catheterization, failure of Geisinger Clinic to allow the doctors to care for Donna Kapacs without sufficient knowledge or skill and failing to ensure its agents obtained appropriate consultations for Donna Kapacs.


source: Caselaw Access Project

author: KELLER, J,

license: Public Domain

text:
    Jarvis v. Jarvis
    C.P. of Berks County,
    no. 04-6110.

      Barbara H. Beringer, for plaintiff.

      William R. Bernhart, for defendant.
    July 20, 2006
   KELLER, J,

The parties to this action were married on June 21, 1986 in New Jersey. They separated in January 2003 when the petitioner/Wife moved out of the marital bedroom. The parties have lived separate and apart since that time. Petitioner had spent a considerable amount of time in New Jersey since 2000. A complaint in divorce was filed by the petitioner on May 6, 2004 and shortly thereafter she moved to New Jersey, where she continues to live. This was the first marriage for both parties. Petitioner has a daughter, Dena, from a previous relationship. Husband adopted Dena shortly after the parties’ marriage. Two sons, Luke and Benjamin, were born of the marriage. Following petitioner’s relocation to New Jersey, Husband and the parties’ two sons remained in the marital home in Berks County.

This case was particularly contentious and a special master was appointed to determine the equitable distribution, alimony, and costs and counsel fees for the parties. The special master’s report and recommendation was filed on January 13, 2006. Barbara Beringer, Esquire, entered her appearance for petitioner on January 27, 2006, and on that same day filed exceptions to the master’s report and recommendations on behalf of the petitioner. Arguments were heard on petitioner’s exceptions on April 17, 2006. On May 4, 2006, petitioner filed a notice of appeal from the May 4, 2006 order entering a decree in divorce. On May 30, 2006, this court ordered petitioner to file a concise statement of matters to be complained of on appeal pursuant to Pa.R.A.P. 1925(b), which petitioner did file on June 13, 2006.

The petitioner raises the following issues in her concise statement of matters complained of on appeal:

(1) Whether the trial court abused its discretion in accepting the special master’s report and recommendation regarding the equitable distribution of the marital property of the parties.

(2) Whether the trial court abused its discretion in accepting the special master’s report and recommendation regarding the award of alimony to the plaintiff.

(3) Whether the trial court abused its discretion in accepting the special master’s report and recommendation that failed to award counsel fees to plaintiff.

(4) Whether the trial court abused its discretion in refusing to enter an order requiring defendant to continue designating plaintiff as his surviving spouse on the beneficiary designation of his military pension.

(5) Whether the trial court abused its discretion in failing to remand this case to the special master in divorce for consideration of the equitable distribution, alimony, counsel fees and pension issues raised by the plaintiff in her pretrial statements and pleadings that were not addressed by the special master at the hearing.

(6) Whether the trial court abused its discretion by failing to remand this case to the special master in divorce for a rehearing due to the special master’s failure to bifurcate plaintiff’s case.

(7) Whether the trial court abused its discretion by failing to address plaintiff’s request for a protective order that was filed on October 3, 2005.

(8) Whether the trial court abused its discretion by allowing defendant to submit as evidence to the special master the custody evaluation that was previously removed from the record by the court.

A master’s report and recommendation, although only advisory, is to be given the fullest consideration, particularly on the question of credibility of witnesses, because the master has the opportunity to observe and assess the behavior and demeanor of the parties. Moran v. Moran, 839 A.2d 1091, 1094 (Pa. Super. 2003). This court dismissed the petitioner/Wife’s exceptions and adopted the master’s recommendations in full. In her concise statement of matters raised on appeal, petitioner alleges that this court erred or abused its discretion in several areas relating to the dismissal of her exceptions, the first of which dealt with the equitable distribution of the marital property of the parties. The Superior Court has a well established limited scope of review from an order of equitable distribution. Awards of property distribution are within the sound discretion of the trial court, and will not be disturbed unless there has been a clear abuse of discretion. Miller v. Miller, 421 Pa. Super. 23, 28, 617 A.2d 375, 377 (1992). An abuse of discretion is not found lightly, but upon a showing of clear and convincing evidence. Id. As a result, under the abuse of discretion standard, the appellate court does not usurp the trial court’s duty as fact-finder. Id. An abuse of discretion will be found by the Superior Court only if the trial court failed to follow proper legal procedures or misapplied the law. Brademan v. Brademan, 339 Pa. Super. 185, 191, 488 A.2d 613, 615 (1985).

Section 3502(a) of the Divorce Code sets forth 11 factors to consider when equitably dividing marital property. We found that the special master adequately considered each of the necessary factors in making her recommendation, and that the factual determination is amply supported by the evidence. We found that the distribution recommended by the master is equitable and fair, especially considering the additional amount the petitioner will receive as her portion of Husband’s militaiy pension and the fact that Husband was assigned most of the marital debt. We believe that it was not an abuse of discretion to adopt the master’s recommendations relative to equitable distribution.

Petitioner next alleges that this court abused its discretion in accepting the special master’s report and recommendation regarding the award of alimony to the plaintiff. The Superior Court’s standard of review with respect to orders awarding alimony is limited to a determination of whether the trial court abused its discretion. Dyer v. Dyer, 370 Pa. Super. 377, 381, 536 A.2d 453, 455 (1988). “In determining whether alimony is necessary, and in determining the nature, amount, duration and manner of payment of alimony, the court must consider numerous factors including the parties’ earnings and earning capacities, income sources, mental and physical conditions, contributions to the earning power of the other, educations, standard of living during the marriage, the contribution of a spouse as homemaker and the duration of the marriage.” Anderson v. Anderson, 822 A.2d 824, 830-31 (Pa. Super. 2003). The purpose of alimony is not to reward one party and punish the other, but rather to ensure that the reasonable needs of the person who is unable to support himself or herself through appropriate employment are met. Grandovic v. Grandovic, 387 Pa. Super. 619, 629, 564 A.2d 960, 965 (1989). Furthermore, absent special circumstances, alimony following divorce is a secondary remedy and available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate skill. Id.

Petitioner testified that the divorce proceedings prevented her from obtaining full-time work. She earned about $200 per week working part-time, and the special master determined that once the divorce was finalized, petitioner was young and competent enough to obtain full-time work. The master assigned her an earning capacity of $400 per week. (Report of Patricia H. Frankel, Master, 1/13/06, discussion p. 7.) This court adopted the master’s recommendation that, in light of the length of the marriage, petitioner’s condition of health, and her contribution to the marital entity prior to separation, petitioner be awarded alimony in the amount of $300 per month for one year, followed by $200 per month for an additional year, provided that she does not remarry or cohabitate with another man. (Id. at discussion, p. 9.) The master calculated petitioner’s earning capacity to be $400 per week gross, and $1,732 per month. (Id. at discussion, p. 8.) Add to this the $894.38 petitioner receives as her share of Flusband’s pension and petitioner will have $2,626.38 per month gross. In light of this amount and the fact that Husband is entitled to consideration as the primary custodian of the children and for the fact that he is paying off the marital debt, we found that the special master’s recommendation of $300 per month alimony was sufficient to meet the reasonable needs of the petitioner.

Petitioner’s third claim in her concise statement alleges that this court abused its discretion in accepting the special master’s report and recommendation that failed to award counsel fees to her. The purpose of an award of counsel fees is to promote fair administration of justice by enabling the dependant spouse to maintain or defend the divorce action without being placed at a financial disadvantage; the parties must be “on par” with one another. Teodorski v. Teodorski, 857 A.2d 194, 201 (Pa. Super. 2004). Counsel fees are awarded based on the facts of each case after a review of all the relevant factors. Id. These facts include “the payor’s ability to pay, the requesting party’s financial resources, the value of the services rendered, and the property received in equitable distribution.” Anzalone v. Anzalone, 835 A.2d 773, 786 (Pa. Super. 2003). Moreover, counsel fees are awarded only upon a showing of need. Harasym v. Harasym, 418 Pa. Super. 486, 496, 614 A.2d 742, 747 (1992).

On April 18,2005, petitioner’s attorney, Mark Zimmer, Esquire, filed a petition for leave to withdraw as counsel for Wife, which was granted on May 26,2005. On September 23, 2005, Attorney Bruce L. Baldwin, Esquire, also withdrew his appearance on behalf of the petitioner. The petitioner waived her right to counsel throughout most of the proceedings, retaining her present attorney, Barbara Beringer, Esquire, only after a decree in divorce was entered on May 4,2006, wherein the distribution of the marital assets and liabilities of the parties was specifically enumerated. The master found that the petitioner was able to represent her interests adequately during the period that she was unrepresented by counsel. The master’s recommendation that each party pay his own counsel fees is supported by the fact that the record is devoid of any detailed statement of activities undertaken by either of her two previous attorneys, nor does it indicate the amount of time spent on those activities. Furthermore, while petitioner argues that she is entitled to counsel fees because she was forced to defend two petitions filed by Husband for exclusive possession, it cannot be ignored that petitioner, at one point, filed exceptions to the support/APL proceedings, resulting in the court’s remand to the non-support office to determine a support credit to her for the period of time her two sons spent with her during the summer. Husband argued the exception and paid his counsel to appear at the DRO hearing only to learn that the petitioner decided not to proceed with the action. Petitioner voluntarily chose to represent herself throughout the bulk of the proceedings and, in light of the relatively small amount of counsel fees she had incurred as of the date of the master’s recommendation and the amount of APL payments received, petitioner did not demonstrate the kind of need necessary for an award of counsel fees. This court did not abuse its discretion when it adopted the master’s recommendation that each party pay his or her own counsel fees.

Petitioner next alleges that this court abused its discretion in refusing to enter an order requiring defendant to continue designating her as his surviving spouse on the beneficiary designation of his military pension. Petitioner argues that in order for her to be entitled to the medical military benefit, she has to be entitled to this survivor benefit plan annuity on Husband’s pension. (Transcript of proceedings, 4/17/06, p. 4.) The provisions of the Federal Employees Health Benefit Program specifically say that in order for Mrs. Jarvis to be entitled to what’s called the spouse equity, which is the lifetime enrollment in the medical insurance plan, she does have to be designated as the annuitant under the survivor benefit plan coverage. {Id.) We found that this issue was not raised at the master’s hearing, was therefore technically waived, and not properly before this court for review.

Notwithstanding this waiver, petitioner’s insistence on being designated as the surviving spouse ignores the fact that the parties are divorced, and Husband is free to remarry at any point in the future. Presumably, should Husband choose to remarry, he would include his new Wife as his surviving spouse on the beneficiary designation of his military pension. We also found that the military code and the Federal Employees Health Act does provide that Mrs. Jarvis is entitled, like she would be under COBRA, to a continuation for, I believe, three years of her military health coverage. (Transcript of proceedings, 4/17/06, p. 10.) All she’d need to do is, within 60 days, apply for it and pay for it like she would any other health coverage. (Id.) Although petitioner does not want to have to pay for her health insurance, if she is not already entitled to it by virtue of the fact that Husband’s pension is already in pay status, we found that to saddle Husband with this added expense would have impacted the master’s distribution of the marital assets. Because this issue was not raised at the master’s hearing and the financial impact on the parties is unknown, and petitioner is entitled to continuing coverage that could be paid for with income from her share of her Husband’s pension and/or alimony, we do not feel it was an abuse of discretion to refuse to enter an order requiring Husband to continue petitioner as his surviving spouse on the beneficiary designation of his military pension.

Petitioner’s fifth claim in her concise statement alleges that this court abused its discretion in failing to remand this case to the special master in divorce for consideration of the equitable distribution, alimony, counsel fees and pension issues raised by the plaintiff in her pretrial statements and pleadings that were not addressed by the special master at the hearing. “An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or the record, discretion is abused.” Paden v. Baker Concrete Construction Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995). As the parties’ pretrial statements that were submitted to the special master are not contained in the official record, this court is unable to review the extraneous issues. However, the record fails to disclose the slightest indication of bias or ill will toward the petitioner by the master’s failure to address every single issue contained in petitioner’s pretrial statement, and instead reflects that the special master considered all the necessary factors in formulating her recommendations regarding equitable distribution. As this court found that the master’s recommendations were fair and equitable, and that any of the additional issues raised by petitioner in her pretrial statements would not likely have changed the master’s recommendations, we do not believe that the failure to remand the case was an abuse of discretion.

The sixth claim raised by petitioner in her concise statement alleges that this court abused its discretion by failing to remand this case to the special master in divorce for a re-hearing due to the special master’s failure to bifurcate plaintiff’s case. This court is unable to discern petitioner’s argument regarding the failure of the master to bifurcate her case, as there is no petition to bifurcate contained in the official file and the issue of bifurcation is not addressed at all in the transcripts of the hearings before the master on December 5, 2005 and December 16, 2005. This court recognizes that bifurcation is acceptable and appropriate only in limited circumstances. In order to consider a petition for bifurcation as appropriate, this court feels that evidence must be produced to show that all required inventories and appraisements have been filed, and that all discovery proceedings relating to economic issues are completed, and the parties can no longer control the disposition of the collateral matters by delay of pretrial pleadings. Smolinsky v. Smolinsky, 1981 WL 207370. However, as the record is devoid of any petition for bifurcation, or even any mention of the possibility of bifurcation, we do not feel that the issue is properly before this court. We believe that it was not an abuse of discretion by failing to remand the case to the master for a rehearing.

Petitioner next alleges that this court abused its discretion by failing to address petitioner’s request for a protective order that was filed on October 3,2005. This “motion for protective order” was filed with the prothonotary’s office but did not contain any type of scheduling order as required by B.R.C.P. 206.5(d). The failure of this court to address petitioner’s request for a protective order cannot be attributed to an abuse of discretion, but rather to petitioner’s failure to comply with the necessary local rules. This court is well aware that Rule 239(f) of the Pa.R.C.P. bars “dismissal” of an action for failure to comply with a local rule. However, that question does not arise in this case, as this court did not dismiss the case, but rather declined to hear the petitioner’s motion because it was not provided with the necessary paperwork to schedule such a hearing. This may have been a simple oversight by the petitioner, based on her lack of expertise in the law; however we cannot ignore the fact that petitioner chose to proceed without the benefit of counsel for the majority of her divorce proceedings. A pro se litigant is not absolved from complying with procedural rules. Jones v. Rudenstein, 401 Pa. Super. 400, 404, 585 A.2d 520, 522 (1991). Nor is a pro se litigant entitled to any particular advantage because he lacks legal training. O’Neill v. Checker Motors Corporation, 389 Pa. Super. 430, 434, 567 A.2d 680, 682 (1989). Our Supreme Court has adopted the position that “any layperson choosing to represent himself in a legal proceeding must, to some reasonable extent, assume the risk that his lack of expertise and legal training will prove his undoing.” Warner v. University of Pennsylvania Health System, 874 A.2d 644, 648 (Pa. Super. 2005). We therefore believe that our failure to address petitioner’s motion for a protective order was not abuse of discretion.

Petitioner’s final claim in her concise statement of matters complained of on appeal alleges that this court abused its discretion by allowing defendant to submit as evidence to the special master the custody evaluation that was previously removed from the record by the court. While we agree that the custody evaluation was previously removed from the record, we find petitioner’s statement to be inaccurate.

There were two hearings held before the special master — one on December 5,2005 and one on December 16, 2005. The exhibits were indexed and made a part of the official record in this case. The custody evaluation is not listed as an exhibit by either the plaintiff or the defendant in the official transcripts, nor is the custody evaluation contained in the divorce file. Husband’s attorney, in his cross-examination of the petitioner, made a very brief reference to information contained within the custody evaluation, and the following exchange took place:

“The witness: Well, I don’t want to acknowledge the use of the evaluation, if I am ...

“The master: I agree with you. And I think Mr. Bern-hart has indicated that he is not going to be using that.

“The witness: But he is still asking questions about my personal upbringing and so forth.

“The master: I think, Mr. Bemhart, that you can ask what behavior existed during the marriage.” (N.T. before special master, 12/5/06, p. 126.)

This court did not “allow” Husband to submit the custody evaluation to the special master as evidence. Because the evaluation was part of the custody case and not submitted into evidence at the hearing, we find no indication that the special master in divorce took its contents into consideration when preparing her report and recommendations regarding the equitable distribution of the parties’ marital assets, alimony, and counsel fees. We do not believe that it was an abuse of discretion to deny petitioner’s exceptions to the recommendations because there is no suggestion that the evaluation in any way influenced the master’s recommendation.

For all of the foregoing reasons, this court respectfully requests that the petitioner’s appeal be denied and the order denying her exceptions to the master’s recommendations and the accompanying order entering a decree in divorce be affirmed.


author: THOMSON, S.J.,

text:
    Volodarsky v. Sun Lake Homes Inc.
    C.P. of Pike County,
    no. 70015-2004-Equity.

      Jeffrey G. Velander, for plaintiffs.

      Ronald M. Bugaj, for defendant.
    November 20, 2006
   THOMSON, S.J.,

ORDER

And now November 20,2006, a non-jury trial having been held on August 8, 2006, and in consideration of plaintiff’s trial memorandum and defendant’s brief regarding contested issues, the court hereby enters judgment in favor of the plaintiffs David Volodarsky and Yelena Volodarsky, as husband and wife, in the amount of $138,000.

To this order, the court adds the following opinion:

I. FACTS AND PROCEDURAL HISTORY

On May 15, 2004, the plaintiffs, David Volodarsky and Yelena Volodarsky, toured lots at the Wild Acres Development in Delaware Township, Pike County, Pennsylvania. This tour was conducted by employees of the defendant, Sun Lake Homes Inc. During the tour, the Volodarskys were shown lots 42 and 43, block no. 1801, section 18, Wild Acres, Delaware Township, Pike County, Pennsylvania. It was explained to the plaintiffs by the defendant’s employee, Jenny Prok, that lots 42 and 43 could be purchased together for the total price of $34,000. The plaintiffs agreed to purchase the lots together for the stated price of $34,000.

The agreement was memorialized in a document simply titled “Agreement” which was introduced into evidence as plaintiffs’ exhibit 1. This agreement identified the seller as Sun Lake Homes Inc. of 8804 4th Avenue, Brooklyn, New York 11209. It also identified the buyers as David Volodarsky and Yelena Volodarsky of 61 Valley Lane, East Valley Stream, New York 11581. The agreement states, “seller” agrees to sell and “buyer” agrees to buy, subject to the terms hereof, the following lot: lot no. 42+43, block no. 1801, section 18, located in WildAcres, Delaware Township, County of Pike, Commonwealth of Pennsylvania recorded in the Office for the Recording of Deed of Pike County.” The purchase price was clearly listed as $34,000 and the plaintiffs paid $200 as a “reservation fee” as consideration for the buy/sell agreement. The plaintiffs were prepared to pay for the lots in cash, and so, per the agreement, the closing was scheduled to be held at the Brooklyn office of Sun Lake Homes on May 19, 2004 at 6 p.m.

According to the manager of the defendant corporation, Darryl Fiume, he first became aware of the agreement when he saw said agreement laying on his desk on Monday morning. According to Mr. Fiume, he realized that Jenny Prok had made a mistake because these were “choice lots” and he would never sell them together for that price. He then phoned Mr. Volodarsky and told him that the sale could not go through for that price. According to the plaintiff, Mr. Fiume, told him that he would never sell the lots together for $34,000, but that Mr. Volodarsky could purchase one lot for $34,000 or both lots for $49,000. Mr. Fiume contends that he told the plaintiff that he could purchase both lots for $68,000 or the deal was off and his $200 check would be refunded.

Mr. Volodarsky testified that he informed Mr. Fiume that he would be contacting his attorney. Mr. Volodarsky told Mr. Fiume that if his attorney agreed that the agreement was valid then he wanted to proceed with the sale. Mr. Fiume also testified that Mr. Volodarsky insisted that the deal go through and indicated that he would file a lawsuit if necessary. The defendant corporation, Sun Lake Homes Inc. then sent letters to Mr. Volodarsky stating that they would not go through with the sale. These letters were accompanied by a check in the amount of$200.

Ultimately, this action commenced with the filing of a complaint on June 29,2004. A praecipe for lis pendens was also filed and served upon the defendant corporation on June 29, 2004. The praecipe for lis pendens incorrectly identified the property at issue as “lot 4243, block no. 1801, section 18, Wild Acres, Delaware Township, Pike County, Pennsylvania” instead of “lots 42+43.” According to the testimony of Darryl Fiume, he was aware of the lawsuit pertaining to this property and he was aware of the praecipe for lis pendens relating to this property. Nevertheless, he sold the property anyway, because he determined with the advice of his counsel that the lis pendens was invalid as Wild Acres does not contain a lot 4243.

The plaintiff seeks the remedy of specific performance or in the alternative, treble damages pursuant to the Unfair Trade and Consumer Protection Law, 73 P.S. §201 et seq. The defendant argues that specific performance is impossible because the lots have since been sold. To verify the defendant’s position, this court reviewed the deeds filed in the Recorder of Deeds in Pike County relative to the aforementioned lots. A court may take judicial notice at any stage in the proceeding whether requested or not of any fact not subject to reasonable dispute and “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Pa.R.E. 201 (2006).

A review of these deeds reveals that Sun Lakes Homes did not actually have title to lot 43, block 1801, section 18 as shown on the plan of Wild Acres in the Recorder of Deeds Office of Pike County, Pennsylvania at the time of the agreement with the plaintiff. Rather, this lot was actually owned by SCF Properties Inc. of 108 West Catherine Street, Milford, PA. SCF Properties Inc. purchased the lot from the Pike County Tax Claim Bureau via deed dated July 2,2003. SCF Properties Inc. through its attorney-in-fact, Darryl Fiume, then sold this property to Andrey Silov, c/o SCF Properties Inc., of 108 West Catherine Street, Milford, PA for $40,000 via deed dated August 16, 2005.

Sun Lake Homes Inc. did have title to lot 42, block 1801, section 18 as shown on the plan of Wild Acres in the Recorder of Deeds Office of Pike County, Pennsylvania. This lot was also purchased from the Pike County Tax Claim Bureau on July 2, 2003. Sun Lake Homes Inc. through its attomey-in-fact, Darryl Fiume, then sold this property to Valentina Klubuk, c/o Sun Lake Homes Inc. of 8808 4th Avenue, Brooklyn, NY for $40,000 via deed dated July 12, 2006. The court notes that this sale was made more than two years after the plaintiff filed the complaint and the praecipe for lis pendens. In fact, this sale was made less than a month before the non-jury trial was scheduled to take place pertaining to the lot that was sold.

II. CONCLUSIONS OF LAW AND ANALYSIS

A writing pertaining to the sale of real property satisfies the statute of frauds, 33 PS. § 1 et seq. if it describes the property, sets forth the price, and is signed by the seller. Suchan v. Swope, 357 Pa. 16, 53 A.2d 116 (1947). An agreement of sale must be definite as to all the essential terms. Kelly v. Rhodes, 279 Pa. Super. 477, 421 A.2d 299 (1980). The description of the property must be such that the court can determine what the parties intended to convey. Turner v. Hostetler, 359 Pa. Super. 167, 518 A.2d 833 (1986).

The agreement presented as plaintiffs’ exhibit 1 satisfies the statute of frauds in that it describes the property as “lot no. 42+43 block no. 1801, section 18 located in Wild Acres, Delaware Township, County of Pike, Commonwealth of Pennsylvania.” Further, the agreement sufficiently identifies the price as “$34,000” with a deposit received in cash of “$200” and the total “balance of the down payment to be paid at the closing of $33,800.” This agreement is also signed both by the plaintiffs and by a representative of the defendant corporation.

However, while the agreement is definite in all its essential terms, it is signed by a purported seller, the defendant corporation, who did not actually have title to lot 43. Thus, the defendant corporation entered into what would otherwise be a valid contract for the sale of real property in an attempt to sell land that it did not actually own. Further, the defendant corporation and the true owner of lot 43, SCF Properties Inc., through their respective attorney-in-fact, Darryl Fiume, have both sold the lots in question following the filing of the praecipe for lis pendens.

The court seriously questions the validity of these later sales and the “innocence” of the third-party buyer as both properties were sold to buyers with addresses “c/o” the seller; but, because the current owners of lots 42 and 43 were not made parties to this action, the court finds that specific performance is not an appropriate remedy in this case. See Wilson v. King of Prussia Enterprises Inc., 422 Pa. 128, 132, 221 A.2d 123, 125-26 (1966).

Nevertheless, the court believes that the plaintiff is entitled to be compensated for the actions of the defendant corporation. A party is entitled to compensation under the “catch-all” provisions of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, if a party engages “in any other fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding.” 73 P.S. §201-2(4)(xxi).

The catch-all provisions of the Unfair Trade Practices and Consumer Protection Law apply if the elements of fraud have been established by the plaintiff. In order to maintain a cause of action for fraud, the plaintiff must allege that (1) the defendant corporation made a material representation that was false, (2) with knowledge of its falsity or recklessness as to whether it was true or false, (3) with the intent of misleading the plaintiff into relying on it, and (4) the plaintiff actually did rely on the misrepresentation to his detriment. Bortz v. Noon, 556 Pa. 489, 499, 729 A.2d 555, 560 (1999).

Here, the plaintiff has proven the elements of fraud on the part of the defendant corporation. The defendant corporation not only misrepresented the price that it would accept for the property, it also misrepresented that it owned one of the lots. The defendant corporation entered into a contract for the sale of two lots for the price of $34,000 with no intention of honoring the agreement. Further, pursuant to the agreement, the seller agreed that it would “withdraw the property from inventory and will not offer it for sale to the third party.” The plaintiff relied upon this representation to its detriment. Not only did the defendant corporation sell the property in violation of the agreement, it sold the property with actual knowledge that a praecipe for lis pendens had been filed relating to the property and sold the property at issue merely three weeks before the non-jury trial relating to the sale of this property was scheduled to take place.

The actions of the defendant corporation display a pattern of fraudulent conduct and a blatant disregard for the laws of this Commonwealth that this court finds detestable. As such, the court finds that the plaintiff is entitled to treble damages pursuant to Pennsylvania’s Unfair Trade Practices and Consumer Protection Act.

III. CALCULATION OF DAMAGES

It has been long-standing in Pennsylvania that “a vendee in a contract for the sale of land may recover as damages the loss of his bargain if his contract is in writing, and the vendor in bad faith refuses to convey.” Seidlek v. Bradley, 293 Pa. 379, 383, 142 A. 914, 916 (1928); Frey v. Nakles, 380 Pa. 616, 622, 112 A.2d 329, 332 (1955). Bad faith exists where the defendant refuses to convey land despite a written contract because the defendant “wants more money” for the property. Delvitto v. Schiavo, 370 Pa. 299, 304, 87 A.2d 913, 915 (1952).

Per the written sales agreement between the parties, had the sale of lots 42 and 43 commenced, the plaintiff would have paid $34,000 for both lots 42 and 43. Per the testimony of Darryl Fiume, these were “choice lots” whose actual value was $34,000 per lot, or $68,000 for both lots. In order to determine the damages awardable to the plaintiff, the court must determine the fair market value of these lots. As stated above, each lot was recently sold for $40,000. Thus, the fair market value of both lots is $80,000. As the plaintiffs were prepared to pay $34,000 for both lots, they would have enjoyed a benefit from the agreement in the amount of $46,000.

Further, the defendant corporation sold lot 42 just three weeks before the non-jury trial was scheduled in this matter with full knowledge that the plaintiff requested specific performance of the agreement of sale. The court finds these actions to be a blatant attempt on the part of the defendant corporation to circumvent the plaintiffs’ ability to obtain specific performance. The court believes that such arrogance in the face of the laws of this Commonwealth warrants an award of treble damages pursuant to 73 P.S. §201-9.2(a).

Wherefore, the court finds for the plaintiff in the amount of $138,000.


author: GEORGELIS, J.,

text:
    Farina v. Conestoga Title Insurance Company

      C.P. of Lancaster County,
    no. CI-05-04931.

      Joseph A. O’Keefe, for plaintiff.

      Jay E. Kagan, for defendant.
    November 10, 2006
   GEORGELIS, J.,

Before me is the motion for summary judgment of the defendant, Conestoga Title Insurance Company. The plaintiff, Francis J. Farina, has brought this action against Conestoga for damages he has alleged were caused by Conestoga’s failure to inform him of the presence of a septic tank on his property. The motion will be granted.

In July of 1992, Farina purchased title insurance from Conestoga for the purchase of a home in Chester County. In April of 2005, Farina learned that a neighbor sustained damage to his property as a result of a collapsed septic tank. Farina, concerned that his property might also contain a septic tank, searched the Tredyffrin Township record of sanitary drainage and plumbing fixtures and discovered that his property also contained a septic tank. He contacted Conestoga and made a claim against his title insurance policy for the removal of the septic tank. Conestoga denied the claim for the reason that it was not covered by Farina’s policy.

On June 10, 2005, Farina filed a complaint as a class action and sought certification of the proposed class. On January 5,2006, he filed a motion for class certification, pursuant to Pa.R.C.P. 1701 et seq., and Conestoga filed its answer on January 13, 2006. On May 11, 2006, Farina again filed a motion for class certification with an amended memorandum of law, and Conestoga filed a brief of opposition to the motion on June 2, 2006. Both parties agreed to waive the Pa.R.C.P. 1707 hearing and, on July 19, 2006,1 heard oral argument. On August 9, 2006,1 denied the motion for class certification.

Farina’s complaint contains five counts: violation of the Unfair Insurance Practices Act (UIPA), 40 Pa.C.S. §1171 et seq.; breach of contract; fraudulent misrepresentation; breach of duty of good faith and fair dealing; and declaratory relief. Conestoga seeks summary judgment on all of these counts.

Summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2; Kuney v. Benjamin Franklin Clinic, 751 A.2d 662, 664 (Pa. Super. 2000). “The moving party has the burden of proving that no genuine issue of material fact exists.” Accu-Weather Inc. v. Prospect Communications Inc., 435 Pa. Super. 93, 99, 644 A.2d 1251, 1254 (1994). “In summary judgment cases, review of the record must be conducted in the light most favorable to the non-moving party, and all doubts regarding the existence of a genuine issue of material fact must be resolved against the moving party.” Young v. PennDOT, 560 Pa. 373, 376, 744 A.2d 1276, 1277 (2000).

1. COUNT I — VIOLATION OF THE UNFAIR INSURANCE PRACTICES ACT

In seeking summaiy judgment on Count I of the complaint, Conestoga contends that Farina does not have standing to state a claim under the UIPA. Our Superior Court has held that the insurance commissioner is the proper authority to enforce the UIPA and that the Act does not confer a right of private action. Kramer v. State Farm Fire and Casualty Insurance Company, 412 Pa. Super. 227, 603 A.2d 192 (1992); Hardy v. Pennock Insurance Agency Inc., 365 Pa. Super. 206, 529 A.2d 471 (1987).

Farina cites Pennsylvania case law for the proposition that a violation of the Unfair Trade Practices Consumer Protection Law (UTPCPL), 73 P.S. §201-1 et seq., constitutes a violation of the UIPA. I do not believe those cases stand for that proposition. In Wright v. North American Life Assurance Company, 372 Pa. Super. 272, 279, 539 A.2d 434, 438 (1988), our Superior Court held that the UIPA does not confer a right of private action but that an insured could pursue claims based on common-law fraud and misrepresentation theories. In Pekular v. Eich, 355 Pa. Super. 276, 282-83, 513 A.2d 427, 430 (1986), our Superior Court held that: the UIPA vests the insurance commissioner with the power to investigate specifically defined acts and practices of insurers; the UIPA is not the exclusive means by which an insured can address an insurer’s unfair or deceptive acts; and an insured may maintain a private cause of action under the UTPCPL.

In Count I of his complaint, Farina has identified a claim under the UIPA and avers that he is entitled to relief under that Act because Conestoga’s violations of that Act constitute violations of the UTPCPL. In contending that Conestoga is not entitled to summary judgment on this claim, he has cited case law which he asserts supports the position that a violation of the UTPCPL is a violation of the UIPA. That is, A (a violation of the UIPA) leads to B (a violation of the UTPCPL), and B leads to A. It appears that he is alleging that Conestoga has violated both Acts and that claims under the two Acts are interchangeable. That is not the law in our Commonwealth.

In Kramer and Hardy, our Superior Court has held that the UIPA does not confer the right of a private action. In Wright and Pekular, it held similarly and also that an insured can pursue a claim of unfair or deceptive acts under common-law fraud theories or under the UTPCPL. Farina has pled a cause of action under the UIPA, and, accordingly, Conestoga is entitled to summary judgment on that count.

2. COUNT II — BREACH OF CONTRACT

In seeking summary judgment on Count II of the complaint, Conestoga contends that the existence of the septic tank did not cause a defective title; it did not have a duly to search municipal records; and, therefore, it did not breach the insurance contract.

Farina contends that: (1) the existence of the septic tank caused a defect in the marketability of the title to his property; (2) because the title insurance policy required Conestoga to research all records that could affect the marketability of the title, Conestoga breached the contract when it failed to research municipal records regarding septic tanks; (3) the existence of the septic tank negatively impacts the marketability of the title; and (4) Conestoga’s denial of his policy claim constitutes a breach of contract.

Title insurance protects a buyer from loss occurring from defects in the title of the property he acquires. Hicks v. Saboe, 521 Pa. 380, 384, 555 A.2d 1241, 1243 (1989). “A contract of title insurance is an agreement to indemnify against loss through defects of title.” Trigiani v. American Title Insurance Company, 392 Pa. Super. 427, 430, 573 A.2d 230, 231 (1990) (quoting battler v. Philadelphia Title Insurance Company, 192 Pa. Super. 337, 342, 162 A.2d 22, 24 (1960)).

Conestoga’s title insurance policy insures against loss or damage sustained or incurred by the insured by reason of: (1) title to the estate or interest vested other than as stated; (2) any defect in or lien or encumbrance on the title; (3) the lack of a right of access to and from the land; and (4) the unmarketability of the title. While the existence of the septic tank may be considered a physical defect and may diminish the value of the property, I do not believe it has an impact on the marketability of the title. In addition, there is no evidence that Farina has been denied access to and from his land because of the septic tank, and there is no evidence that the existence of the septic tank has created a lien or encumbrance on the title.

Farina has not presented any Pennsylvania case law authority for the proposition that a physical defect, such as the septic tank on his property, constitutes a defect in or a lien or encumbrance on the title to his property or that such a defect impacts the marketability of that title. He notes correctly that Bortz v. Noon, 698 A.2d 1311, 1319 (Pa. Super. 1997), addressed an on-site sewage disposal system and a title insurance company’s duties. However, he failed to note that it involved allegations of fraudulent misrepresentation by the company that the disposal system passed a dye test. Those are not the facts in Farina’s case, and Bortz is, therefore, not authority for his position in the breach of contract claim.

Similarly, Anderson v. Harper, 424 Pa. Super. 161, 622 A.2d 319 (1993), also relied on by Farina, although it involved a septic system, involved a certification that the system was fimctional when it was not. Furthermore, it did not involve a title insurance company. It is also not authority for his position on the breach of contract claim.

If the existence of a septic tank is to be considered a defect to the title of real property, I believe our appellate courts must so decide. I will not do so.

As to Farina’s contention that Conestoga breached the contract because it failed to search the municipal records which would have revealed the existence of the septic tank, with my holding that the existence of the septic tank is not a title defect, there was no duty to search for evidence of the tank. Accordingly, Conestoga is entitled to summary judgment on this count.

3. COUNT III — FRAUDULENT MISREPRESENTATION

In seeking summary judgment on Count III of the complaint, Conestoga contends that: it only represented that it would search records pertaining to the title of Farina’s property; it never represented that it would search records pertaining to the value of the property or the existence of any physical defects on the property; and, because it had no duty to search municipal records regarding septic tanks, it did not do so, and, therefore, could not have concealed information that it did not possess.

Farina contends that Conestoga: fraudulently misrepresented it would search municipal records which would have revealed the existence of the septic tank; through its title insurance policy and marketing, represented that it would search all municipal records; and failed to provide the services it represented it would provide when it denied his policy claim.

Fraudulent misrepresentation occurs when there is an intentional concealment intended to deceive. Wilson v. Donegal Mutual Insurance Company, 410 Pa. Super. 31, 41, 598 A.2d 1310, 1315 (1991). Fraudulent misrepresentation requires that: (1) the defendant made a representation; (2) the representation was material to the subject transaction; (3) the defendant made the representation with knowledge that it was false or reckless as to its veracity; (4) the defendant made the representation with the intent of misleading the plaintiff into relying on the representation; (5) the plaintiff justifiably relied on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Bortz v. Noon, 556 Pa. 489, 499, 729 A.2d 555, 560 (1999).

I agree with Conestoga’s contentions. First, Farina inaccurately states that Conestoga represented that it would search all municipal records. Conestoga’s policy and literature represents that it will search all records, including municipal records, which affect real estate ownership and title to real estate. Our Supreme Court, in Moser v. DeSetta, 527 Pa. 157, 163, 589 A.2d 679, 682 (1991), held that the concealment must be of a material fact. Because I have already held that the existence of the septic tank does not create a defect to the title, discovery of the tank, was not material to the subject transaction, i.e., Conestoga’s providing insurance that good title was conveyed. Conestoga had no knowledge of the septic tank, and, therefore, could not have concealed or misrepresented its existence. Conestoga is entitled to summaiy judgment on this count.

4. COUNT IV — BREACH OF GOOD FAITH AND FAIR DEALING

In seeking summary judgment on Count IV of the complaint, Conestoga contends that Pennsylvania does not recognize a separate cause of action for breach of the duty of good faith and fair dealing.

Farina contends that: Conestoga breached its duty of good faith and fair dealing by failing to search all municipal records which could affect the marketability of the title, failing to collect all materials at settlement as mandated by law and failing to honor his insurance claim; Conestoga represented it would do the aforementioned and, by not doing so, narrowed the coverage of the title insurance policy; and Conestoga failed to enumerate all matters it intended to exclude from coverage.

Every contract imposes on each party a duty of good faith and fair dealing in its performance and its enforcement. Restatement (Second) of Contracts §205. In Baker v. Lafayette College, 350 Pa. Super. 68, 84, 504 A.2d 247, 255 (1986), our Superior Court expressly adopted this section of the Restatement. However, this duty is not separate from the express duties that the contract imposes on the parties. John B. Conomos Inc. v. Sun Company Inc., 831 A.2d 696, 706-707 (Pa. Super. 2003).

Farina cites Somers v. Somers, 418 Pa. Super. 131, 613 A.2d 1211 (1992), to support his contention that Pennsylvania allows a separate cause of action for breach of the duty of good faith and fair dealing. However, Somers held only that Pennsylvania has adopted the general duty of good faith and fair dealing in the performance of a. contract and that a party may bring a claim for breach of contract for a breach of that duty. Id. I believe that these cases established that a claim for a breach of the duty of good faith and fair dealing must be asserted within a claim for the breach of contract. Conestoga is entitled to summary judgment on this count.

5. COUNT V — DECLARATORY RELIEF

In seeking summary judgment on Count V of the complaint, Conestoga contends that: (1) declaratory relief is improper; (2) Farina is unable to offer facts demonstrating that Conestoga failed to perform all of its legal and contractual obligations; (3) more appropriate remedies are available; and (4) Farina is not entitled to declaratory relief.

Farina contends that Conestoga did not perform all of its legal and contractual obligations. He requests that I grant declaratory relief and require Conestoga to honor Farina’s claim.

Declaratory judgments are not obtainable as a matter of right. Osram Sylvania Products Inc. v. Comsup Commodities Inc., 845 A.2d 846, 848 (Pa. Super. 2004). Instead, whether a court should exercise jurisdiction over a declaratory judgment is a matter of sound judicial discretion. American Nuclear Insurers v. Metropolitan Edison Company, 399 Pa. Super. 375, 379, 582 A.2d 390, 392 (1990). Because I have already held that Farina is not entitled to relief on any of his causes of action, I believe declaratory judgment is inappropriate, and I will not grant it.

Accordingly, I enter the following:

ORDER

For the reasons stated in the foregoing opinion, the defendant’s motion for summary judgment is granted. Judgment is entered in favor of the defendant and against the plaintiff on all of the counts of the complaint.