author: SURRICK, J.,

text:
    Almon v. Jackson

      C.P. of Delaware County,
    no. 97-51563.

      Alvin F. deLevie, for plaintiff.

      Jill R. Mezyk, for defendant.
    June 20, 2000
   SURRICK, J.,

On September 11, 1996, an automobile operated by plaintiff Dennis Almon was struck by an automobile being operated by defendant, Delaney Jackson. On June 19, 1997, plaintiff filed a complaint seeking money damages for personal injuries sustained in the accident. On November 2,1998, the case was tried before a board of arbitrators. The arbitrators found in favor of plaintiff and against defendant and awarded damages in the amount of $22,767. Defendant filed an appeal from the arbitration award. Trial by jury was held on July 7 and 8, 1999. The jury returned a verdict in favor of plaintiff in the amount of $150,000. The jury found that defendant was 90 percent negligent in the happening of this accident and plaintiff was 10 percent negligent. The verdict as molded awarded damages to plaintiff in the amount of $135,000.

A timely post-trial motion was filed. The motion requested a remittitur or in the alternative a new trial. Specifically, the motion raised the following issues:

(1) Whether the jury’s verdict was excessive in light of plaintiff’s evidence.

(2) Whether the court erred in allowing Dr. Wells to testify outside the “four comers” of his report.

(3) Whether the court erred in allowing Dr. Wells to testify beyond the scope of cross-examination.

(4) Whether the jury’s verdict on liability in favor of plaintiff was not supported by the evidence.

(5) Whether the court erred in not allowing the jury to see the police report.

After review of briefs submitted by counsel and oral argument, defendant’s post-trial motion was denied. The instant appeal followed.

The evidence and testimony at trial established the following facts. Chester Pilce, in the Borough of Glenolden, Delaware County, is a four-lane highway which runs generally north and south with two lanes of travel in each direction. Boon Avenue in Glenolden Borough is a two-lane highway which runs generally east and west with one lane of travel in each direction. Boon Avenue forms a “T” intersection with Chester Pike on the east side of Chester Pike. The intersection is controlled by a stop sign for traffic traveling on Boon Avenue.

Gardner Avenue in Glenolden Borough runs generally east and west and crosses Chester Pike approximately 50 yards south of the “T” intersection of Boon Avenue and Chester Pike. The intersection of Gardner Avenue and Chester Pike is controlled by a traffic light.

On September 11, 1996, plaintiff was employed as a delivery driver for Federal Express. Sometime between 3 p.m. and 4 p.m. on that date plaintiff was driving a large Fed Ex van in a westerly direction on Boon Avenue. It had been raining and the roads were wet. When plaintiff approached Chester Pike he brought his van to a stop at the stop sign and looked toward Gardner Avenue to see if any traffic was travelling north on Chester Pike. He observed that the light at Gardner Avenue was red for traffic traveling north and south on Chester Pike and there were no vehicles traveling on Chester Pike between Boon Avenue and Gardner Avenue. After making these observations plaintiff started across the intersection with the intention of turning left to travel south on Chester Pike. As plaintiff traveled across the two northbound lanes of Chester Pike, he turned his vehicle to the left to travel south on Chester Pike. As he made this maneuver he saw the defendant, who was traveling north on Chester Pike, slide through the red light at Gardner Avenue. Defendant continued sliding out of control and into the southbound lanes of Chester Pike striking plaintiff’s vehicle head-on in the centermost southbound lane. Both vehicles had to be towed from the scene. Plaintiff’s Federal Express van was a total loss.

Plaintiff is a 44-year-old high school graduate. After high school plaintiff spent nine years as a military policeman in the Air Force. After being honorably discharged from the Air Force, plaintiff joined the sheriff department in his home town in Alabama. Sometime thereafter, plaintiff moved to New Jersey where for five years he worked as a maintenance superintendent. He also did work for Volunteer American in Camden. In 1994, plaintiff moved to Pennsylvania and started working for Federal Express, the job he held at the time of the accident.

Prior to the accident, plaintiff had never had any problems with his neck, shoulders or back and had never suffered any restricted motion, muscle spasm, numbness or tingling in those parts of his body. Plaintiff had never suffered any disability prior to this accident and had never filed a lawsuit or made a claim for personal injury.

Immediately following the accident, plaintiff felt dizzy. After reporting the accident to his employer, plaintiff went to the emergency room at Mercy Catholic Medical Center. At that time he was experiencing dizziness, blurred vision, sharp headaches and pain. Upon discharge from the hospital, plaintiff went home. In the days following the accident the pain did not subside. He was experiencing pain in his neck, shoulders and low back and intermittent paresthesia in his upper extremities. As a result, he sought treatment at the emergency room at Kennedy Hospital on the weekend following the accident. Plaintiff did not return to work for 10 days and when he did return, he returned on what Federal Express calls TRW or temporary disability. Plaintiff received medical treatment from the company doctor who referred him to a neurologist. After a period of about five weeks when the pain was not getting any better, plaintiff went to Dr. Wells, his family doctor. He first saw Dr. Wells on November 5, 1996. Dr. Wells, who testified on his behalf at trial, continued to treat plaintiff in the months following the accident. Dr. Wells found that plaintiff had restricted range of motion in his neck. Dr. Wells also found muscle spasm bilaterally in the paraspinal muscles in the dorsal spine which caused a straightening of the spine as well as muscle spasm in the area of the shoulders and low back. Muscle spasm is an objective sign of injury which cannot be feigned. Dr. Wells diagnosed plaintiff as having acute cervical, dorsal and lumbar myositis. He prescribed pain medication, muscle relaxants and a course of physical therapy for plaintiff. Plaintiff made progress with the physical therapy and on January 31, 1997 he was discharged from therapy.

Although plaintiff was discharged from therapy, his injuries were not completely healed. He continued to have some difficulties with his neck and back and in April of 1997 he had a serious flare-up as a result of the duties of his employment. This flare-up sent him back to Dr. Wells for additional treatment which lasted for several months.

Plaintiff has continued to have problems even up until the time of trial. He experiences muscle spasm and pain on a regular basis which is aggravated by any lifting or exertion. He has difficulty sleeping and is no longer able to do work around the house that requires any lifting. Dr. Wells testified that as a result of this accident the muscles and ligaments in plaintiff’s neck and back were stretched and tom causing hemorrhaging and resulting in scarring. He indicated that, because of this, plaintiff was a candidate for easy reinjury of these areas and for degenerative changes in the future. Dr. Wells testified that plaintiff’s condition was permanent, that it was caused entirely by this accident and that plaintiff’s injury constituted a 10 percent permanent partial disability of the cervical, thoracic and lumbar spine.

Addressing first, defendant’s contention that the verdict of the jury was excessive, in the case of Ammon v. Arnold Pontiac — GMC Inc., 361 Pa. Super. 409, 522 A.2d 647 (1987), the Superior Court discussed the standard of review in determining whether the verdict of a jury is excessive as follows:

“We commence our discussion by recognizing that ‘the granting or refusal of a new trial because of excessiveness is peculiarly within the discretion of the court below and we will not interfere, absent a clear abuse of discretion.’ Robert v. Chodoff, 259 Pa. Super. 332, 366, 393 A.2d 853, 871 (1978). A verdict will not be held to be excessive unless the excessive size of the verdict shocks the court’s sense of justice. Id. In Chodoff, id., this court listed six factors which are considered in determining whether a particular verdict is excessive:
“(1) the severity of the injury, (2) whether plaintiff’s injury is manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff, (3) whether the injury will effect the plaintiff permanently, (4) whether the plaintiff can continue with his employment, (5) the size of plaintiff’s out-of-pocket expenses, and (6) the amount plaintiff demanded in the original complaint.”

Initially we would observe that the verdict in this case was not so excessive as to shock this court’s sense of justice. Although the verdict was larger than anticipated, it certainly was not shocking. When one reviews the evidence and testimony concerning the accident and the injuries sustained by plaintiff in the accident, it is not difficult to understand how the jury reached its conclusions.

The impact between the vehicles was significant. As a result of that impact, plaintiff suffered severe injury to his neck, shoulders and low back. These injuries were manifested by objective, physical evidence. Plaintiff’s treating physician testified that these injuries are permanent and they constitute a 10 percent disability. At the time of trial, plaintiff was only 44 years old. He will have to deal with these injuries for the rest of his life. Although plaintiff continues to work, he testified that financial considerations dictate that he work even though he continues to experience pain. In fact, at the time of trial, plaintiff had already experienced a serious flare-up of his injuries as a result of his employment which required medical treatment. Dr. Wells testified that such flare-ups are to be expected.

The evidence and testimony presented by plaintiff was more than sufficient to support the jury’s conclusion that plaintiff had suffered serious, permanent injury in this accident that had, and would continue to have, a significant impact on plaintiff’s life. Defendant offered nothing to contradict this conclusion. Defendant’s suggestion that this verdict was the result of partiality, prejudice, mistake or corruption is totally devoid of merit.

Addressing next defendant’s contention that the court erred in allowing Dr. Wells to testify outside the “four comers” of his report. Defendant contends that Dr. Wells never authored a report regarding his treatment of plaintiff for the flare-up of his condition in April of 1997 and that because he never wrote such a report he should not have been permitted to testify concerning this treatment. This objection was discussed at a conference during trial as follows:

“The Court: Okay, we are in the retiring room. Counsel are both present. We are talking about the videotaped deposition of Dr. Richard Wells, the treating physician in this matter. It is my understanding that there are two objections that the counsel needs ruling on. The one objection is page 28 is that correct?

“Ms. Mezyk: Yes.
“The Court: That has to do with whether or not the testimony of the doctor is beyond the scope of the report deposition. I have given a report which has been marked Wells-1,1 guess that was on the date of the videotape. Is that the report that we are referring to?
“Ms. Mezyk: Yes.
“The Court: Counsel, perhaps you better tell me what the objection is, so that the record is clear.
“Ms. Mezyk: The objection is Dr. Wells goes to testify as to the treatment he gave, the examination he gave, the plaintiff’s complaints at the time and this is the only report that we received regarding the treatment the plaintiff got after he was initially discharged. This report does not reference the range of motion test that he gave that Dr. Wells refers to. It doesn’t reference the fact that plaintiff was complaining of lower back pain for a month because he was picking up heavy objects, although Dr. Wells testified to that. It basically just verifies that the plaintiff came back, but gives us nothing else to go on.
“The Court: This record, Wells-1 is entitled attending physician’s report and it looks like something that would probably go to an insurance company. It has written on it flare-up and then has a series of dates when the examination took place. It doesn’t get into what was examined. It says the patient was injured on job while driving, was hit head-on by an out of control driver. That is the report that we are referring to, correct?
“Mr. Delevie: Well actually Wells-1 is two pages. The second page identifies by date, the type of treatment, the types of charges, all by the billing codes that were routinely used. I would also point out that although it is an attending physician’s report, this must be read in conjunction with and considering his reports and everything else that he had been explaining during his entire deposition up to that point.
“The Court: These are the doctor’s records?
“Mr. Delevie: Right.
“The Court: Were the doctor’s records given to — does defense counsel have the doctor’s office records?
“Mr. Delevie: No, they never asked for them, they never subpoenaed them. They never record copied them. What they did have was a very detailed narrative report which was identified by the doctor and he testified to it. What was marked as Wells-1 and which was admitted into evidence at the time of the arbitration hearing and it was part of the arbitration package, includes in item six the diagnosis and treating conditions. It says it is a result of the accident. It notes it is a flare-up and the second page of Wells-1 details by code. Counsel certainly could have obtained those codes, they are readily available. What the diagnoses were, what the treatments were for. Again, it is within the fair scope of the four comers of the report.
“The Court: Just a minute. Counsel, did you — do I understand that you never got the doctor’s records in this case?
“Ms. Mezyk: We got records up through January 31, 1997. We got his written reports and the bills. Then we got this one bill, which they are referring to as a report, but seems to be a bill.
“The Court: Well it is a bill with attached codes and dates of treatment and charges, correct?
“Ms. Mezyk: Correct.
“The Court: Okay.
“Ms. Mezyk: My objection, though, is that the doctor testified outside the scope of this report. Because he refers to complaints of lower back pain for a month. He testifies to a lot outside the scope of this report, even though I knew what those codes meant.
“The Court: When did you receive this document?
“Ms. Mezyk: I am not sure, but I would agree — I mean if counsel said he gave it to me at the arbitration I don’t agree with that.
“Mr. Delevie: It was admitted at the arbitration, and I know it was submitted well in advance of the arbitration so it was admissible.
“The Court: There was testimony at the arbitration?
“Mr. Delevie: Yes.
“The Court: Did Dr. Wells appear?
“Mr. Delevie: No the client testified.
“The Court: Okay, anything further?
“Ms. Mezyk: No.
“The Court: Okay, under the circumstances, I am going to overrule the objection and permit the testimony.” (N.T. 7/7/99 at 127-33.)

In the case of Chanthavong v. Tran, 452 Pa. Super. 378, 682 A.2d 334 (1996), the Superior Court discussed the scope of an expert’s testimony as follows:

“This court has recently set forth the applicable law regarding the scope in which an expert witness may testify as to his or her pretrial report as follows:
“ ‘[EJxperts may testify at trial concerning matters which are within the fair scope of a pretrial report.’ . . . ‘The avoidance of unfair surprise to an adversary concerning the facts and substance of an expert’s proposed testimony is the primary purpose of the rule requiring that testimony be within the fair scope of the pretrial report.’...
“[i]t is impossible to formulate a hard and fast rule for determining when a particular expert’s testimony exceeds the fair scope of his or her pretrial report. Rather, the determination must be made with reference to the particular facts and circumstances of each case. The controlling principle which must guide is whether the purpose of Rule 4003.5 is being served. The purpose of requiring a party to disclose, at his adversary’s request, ‘the substance of the facts and opinions to which the expert is expected to testify’ is to avoid unfair surprise by enabling the adversary to prepare a response to the expert testimony....
“(‘[W]e have found experts’ reports to be adequate ... when the report provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness.’)
“In other words, in deciding whether an expert’s trial testimony is within the fair scope of his report, the accent is on the word ‘fair.’ The question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert’s pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response.” Id. at 388-89, 682 A.2d at 339-40.

In the instant case there was no unfair surprise concerning the substance of Dr. Wells’ testimony. Defendant knew that plaintiff had gone back to Dr. Wells in April of 1997 because of a flare-up in his condition. Plaintiff had testified as to the flare-up and the resulting visits to Dr. Wells at the arbitration trial. Defendant had Dr. Wells’ records which designated the dates of plaintiff’s treatment and the codes indicating the types of treatment that he received. These records had been given to defendant at the time of the arbitration trial. If defendant had felt the need for additional information concerning the treatment that began April 1997, he could have sought clarification by way of interrogatories or a request for a supplemental report. Defendant did nothing. Now defendant claims surprise. If defendant was surprised he has no one to blame but himself. This is not a case where plaintiff misled defendant.

Addressing next defendant’s contention that the court erred in allowing Dr. Wells to testify beyond the scope of cross-examination. On direct examination, Dr. Wells testified that he had reviewed the records from Kennedy Hospital, was familiar with the complaints that plaintiff made to the emergency room personnel at Kennedy and considered this in reaching his conclusions. On cross-examination, counsel for defendant did not make specific reference to plaintiff’s visit to Kennedy Hospital. On redirect, plaintiff’s counsel asked Dr. Wells questions concerning the Kennedy visit. Defendant objected to this inquiry as being beyond the scope of cross. The record reflects the following with regard to this objection:

“The Court:... The next one is 46. This has to do with an objection to a question beyond the scope of the cross-examination?
“Ms. Mezyk: Correct.
“The Court: Counsel, perhaps you had better, for the record, explain exactly what it is.
“Ms. Mezyk: On cross-examination of the doctor, the attorney, Keith Goner, who was actually doing the doctor’s deposition referenced the first emergency room report from Mercy Catholic Medical Center. The name of the report is on page 41. On redirect to the doctor, counsel tries to bring up the Kennedy Memorial Hospital Emergency Room Record, and that report was never referenced on cross-examination.
“The Court: Has he ever discussed treatment— Kennedy was not discussed?
“Ms. Mezyk: Right.
“The Court: Counsel, do you agree with that?
“Mr. Delevie: In words, yes, but it is misleading. What Mr. Goner was attempting to do in cross-examination by references to the treatment at Mercy Catholic was to suggest that when he went to the emergency room at that point, that Mr. Almon was not complaining about his neck or trapezious area. I am trying to have the jury conclude that somewhere down the road, all of a sudden Mr. Almon started to make these complaints. I thereupon direct examination give the jury a full viewpoint brought out that, in fact, two days later, at another emergency room he truly did complain about shooting pains in the trapezious area so that they would have a complete picture, and not just have it pot shotted to show that one ER did not make reference to it but certainly two days later, did. So although the emergency room record was not mentioned by name, JFK, it was certainly fair redirect to rebut the inference that counsel was trying to make that this trapezious area somehow mysteriously appeared sometime later.
“Ms. Mezyk: Dr. Wells had full opportunity to direct that Kennedy room record on direct examination. So the fact that...
“The Court: Dr. Wells had reviewed the Kennedy record, was familiar with it, it was part of his things that he reviewed in preparation for testimony?
“Ms. Mezyk: Yes.
“The Court: Anything further?
“Mr. Delevie: No, just that I think — well, your honor understands my position on the matter.
“The Court: Under the circumstances, I am going to overrule that objection and permit that testimony also.” (N.T. 7/7/99 at 133-36.)

In the case of Woodland v. Philadelphia Transportation Company, 428 Pa. 379, 385-86, 238 A.2d 593 (1968) the Supreme Court observed:

“It is elementary that, unless the witness is himself one of the litigants . . . cross-examination of his testimony should be confined to the matters upon which he was examined in chief. This has been the rule in Pennsylvania since it was proclaimed by Chief Justice Gibson in 1827 in Ellmaker v. Buckley, 16 S.&R. 71,.. . and it has been consistently adhered to ever since[.] ... It is true that considerable latitude must be left to the trial judge, and his action will not be reversed in the absence of an abuse of discretion or unless obvious disadvantage resulted therefrom to the other party.”

In the case of Catina v. Maree, 498 Pa. 443, 449, 447 A.2d 228, 231 (1982) the Superior Court made the following observations with regard to the examination of witnesses:

“As a general rule, one who calls a witness is required to elicit on his first (direct) examination all that is wished to be proved by that witness — such rule is manifestly in the interests of fairness and expedition of litigation. McCormick, Evidence section 32, Redirect and Subsequent Examinations (West 2d Ed. 1972). While there is division of authority on the scope of cross-examination between jurisdictions favoring restrictive cross (as in Pennsylvania: see generally, Kline v. Kachmar, 360 Pa. 396, 61 A.2d 825 (1948) and those allowing ‘wide-open’ cross, no such division exists as regards redirect and subsequent examinations; as to these subsequent examinations, the practice is uniform that the party’s examination is limited to answering only such matter as was drawn out in the immediately preceding examination of the adversary.” (emphasis in original)

We are satisfied that there was no abuse of discretion in the instant case. Counsel for defendant questioned Dr. Wells concerning the fact that plaintiff did not complain of neck pain when he went to the emergency room on the day of the accident, the implication being that plaintiff-had not injured his neck in the accident. Plaintiff’s counsel on redirect established that on the weekend following the accident, plaintiff did go to Kennedy Hospital complaining of neck pain and that it is not unusual for such pain to develop in the days immediately following an accident. This redirect was not beyond the scope of defendant’s cross.

Finally, addressing defendant’s contentions that plaintiff presented insufficient evidence to establish liability and that the court erred in denying the jury’s request to see the police report, the simple response is that these contentions are frivolous.

Jurors may believe all, some or none of the testimony of any witness. Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998). It is the function of the jury to weigh competing evidence and that function should not be disturbed by the trial court. Wagner v. Anzon Inc., 453 Pa. Super. 619, 684 A.2d 570 (1996). Clearly the jurors in this case believed the testimony of plaintiff and rejected the testimony of defendant with regard to the happening of this accident. The testimony of plaintiff fully supports the conclusion that defendant was at least 90 percent negligent in the happening of this accident.

With regard to the police report, during the course of his testimony, Officer Kelly, the investigating officer from the Glenolden Police Department, made reference to information contained in his police report. During the cross-examination of plaintiff, counsel for defendant had the police report marked as an exhibit (D-2) and questioned plaintiff with regard to certain items in the report. After the jurors had retired to deliberate, they requested that the court give them the police report. Plaintiff objected. The objection was sustained. Defendant contends that this was an error.

The entire police report was never read to the jury during trial. Only selected portions of the report were used during the testimony of Officer Kelly and Dennis Almon. The report contains information that the jury had not seen or heard. For example the name of plaintiff’s insurance company and defendant’s insurance company are in the report. In addition, a diagram of the accident scene drawn by Officer Kelly is in the report. Clearly it would have been improper to give this information to the jury. Defendant’s contention is without merit.

For the forgoing reasons, defendant’s post-trial motion was denied.

      . At a conference prior to jury selection the court attempted to generate settlement discussions. Defendant refused to make any offer of settlement.

      . On temporary disability (TRW) the employee is on light duty and is permitted to work only 4 hours per day.

      . The testimony of Dr. Wells was presented by videotape.

      . As a result of this flare-up Federal Express again placed plaintiff on TRW.

      . One need only read the testimony of plaintiff and his wife to get the flavor of the impact that this accident has had on plaintiff’s life. Plaintiff made a credible witness and the jury obviously concluded that his injuries were real.

      . Plaintiff testified that even though he is in pain he does not seek medical treatment because he cannot afford to have his employer place him on TRW.


source: Caselaw Access Project

author: WETTICK JR., J.,

license: Public Domain

text:
    Blaner v. IDEC Pharmaceuticals Corporation

      C.P. of Allegheny County,
    no. GD00-21994.

      Kelli J. Kleeb, for plaintiffs.

      Kerry A. Kearney, for defendants Genentech Inc. and IDEC Pharmaceutical Corp.

      Marian Patchen Schleppy, for defendant Lim.

      Charles C. Keller, for defendant Monongahela Valley Hospital.

      Roy E. Leonard, for defendant McKesson HBOC Inc.

      James R. Hartline, for defendant Rao.

      Damon J. Faldowski, for defendant Ruschak.
    March 28, 2002
   WETTICK JR., J.,

The subject of this opinion and order of court is a motion filed by defendant-manufacturers seeking a ruling that a physician whom the manufacturers retained (Grant Anhalt M.D.) may furnish expert testimony in these proceedings. Dr. Anhalt is a nationally recognized expert in the field of PNP. It is Dr. Anhalt’s practice to respond, without compensation, to inquiries of physicians located throughout the country treating patients who may be suffering from PNP. In the present case, a treating physician of plaintiff-husband, during the diagnosis and treatment of plaintiff, had two telephone conversations with Dr. Anhalt. It is the position of plaintiffs that Dr. Anhalt cannot offer expert testimony on behalf of the defendant-manufacturers in this litigation because of his involvement in plaintiff’s treatment.

According to the allegations in plaintiffs’ second amended complaint, plaintiff was being treated for chronic lymphocytic leukemia. On December 18, 1999, a physician (defendant Dr. Lim) administered the drug Rituxan. Plaintiff suffered an adverse and/or allergic reaction and developed a severe rash. On three additional occasions between November 24, 1999, and December 9,1999, the same physician administered additional doses of Rituxan and plaintiff suffered worsening adverse and/ or allergic reactions.

Between January and May 2000, plaintiff was seen by three physicians (defendants Miller, Ruschak, and Rao) for his skin rash. These physicians did not diagnose or treat plaintiff for PNP, the condition from which plaintiff was suffering. In July 2000, the condition was properly diagnosed by another doctor.

In this lawsuit, plaintiffs raise claims based on negligent medical care against treating physicians and a hospital, and claims against the manufacturing defendants (Genentech and IDEC Pharmaceuticals) based on allegations that Rituxan caused the PNP. In this lawsuit, plaintiffs have not sued the physician who contacted Dr. Anhalt.

It is the position of Genentech and IDEC Pharmaceuticals that Rituxan did not cause plaintiff’s PNP. These defendants wish to offer Dr. Anhalt as an expert in support of this position. Dr. Anhalt will testify that plaintiff’s exposure to Rituxan is not the cause of the PNP because the development of an autoimmune disease is a slow process.

At his October 9, 2001 deposition, Dr. Anhalt offered the following testimony: He is a physician in the Dermatology Department of Johns Hopkins University, School of Medicine. He was the first author on the publication that initially identified PNP as a unique syndrome. He has authored between 50 and 75 articles relating to PNP. He has accumulated data on more than 150 cases over the last 11 years. He has the most experience in the world with this disease.

He is constantly contacted by physicians seeking assistance with patients who may have PNP. In the fall of 2000, he talked, on one or two occasions, to a treating physician from Pittsburgh with whom he had no relationship (Dr. Earle) about a patient with PNP. He advised the treating physician that the disease sounded like PNP and that the physician should send serum from the patient to Dr. Anhalt’s lab so the treating physician could confirm that it was PNP.

The discussion between Dr. Anhalt and the Pittsburgh physician included treatment. Dr. Anhalt suggested the current regimen that was used at that time, which was Prednisone, Cyclosporine, and Cytoxan/Oxytocin. (T. 18, 96.)

In late January 2001, Dr. Anhalt was hired by Genentech as a consultant. On January 29, 2001, Dr. Anhalt entered into a written agreement with Genentech to review all serious, skin-related adverse events suffered by patients taking Rituxan. On February 16, 2001, he initially met with Genentech officials at a site visit. He reviewed 20 cases identified by number; these were cases in which there were reports of significant skin reactions. The 20 cases included plaintiff’s case.

For these 20 cases, Dr. Anhalt was not provided with a name or other identifying data. Dr. Anhalt issued a report dated March 8, 2001, in which he concluded that patient MCN095644 suffered from PNP and that his condition was not drug-related. Plaintiff is patient MCN095644. Dr. Anhalt’s report states that PNP occurs “as a slowly evolving complex of symptoms” (D00102); that PNP occurs primarily in the presence of a known neoplasm (tumor) (D00101); and that PNP “is an inherent risk due to the underlying malignancy, not to any therapy applied” (D00104).

In his deposition, Dr. Anhalt stated that the common denominator in the 150 PNP cases he has considered in the past 11 years is that a malignancy has been present for a long time before the patient develops PNP. It is not plausible that a short exposure to a drug could induce an autoimmune disease. Autoimmunity is not something that happens with a short-term exposure to anything. (T. 27-29.) This testimony, that Rituxan could not have been a triggering mechanism for plaintiff’s PNP because of the short time between the exposure and the manifestation of the PNP, is the subject of defendant-manufacturers’ motion.

While there are no Pennsylvania appellate court cases addressing the issue of whether a physician who voluntarily furnishes advice to a treating physician regarding the diagnosis and treatment of the treating physician’s patient should also be characterized as a treating physician, cases in other jurisdictions hold that there is no physician-patient relationship. In these other jurisdictions, the issue arises primarily in the medical malpractice context. In almost all cases, the courts dismiss medical malpractice actions against the physician who rendered assistance to the treating physician on the ground that the law does not impose a duty of care where a physician has not assumed responsibility for the care of the patient. These cases are relevant to the present motion because a court that is not imposing a duty of care would not impose duties of confidentiality or loyalty.

Plaintiffs rely on Pa.R.C.P. 4003.6, governing discovery of treating physicians, and case law construing this rule in support of their position that Dr. Anhalt cannot testify as an expert for any parties whom plaintiffs have sued.

Rule 4003.6 reads as follows:

“Rule 4003.6. Discovery of treating physician
“Information may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter. This rule shall not prevent an attorney from obtaining information from
“(1) the attorney’s client,
“(2) an employee of the attorney’s client, or
“(3) an ostensible employee of the attorney’s client.”

In Marek v. Ketyer, 733 A.2d 1268 (Pa. Super. 1999), the court ruled that a treating physician for the plaintiff may not testify as an expert for a defendant because of the privacy interest underlying the physician-patient relationship and the physician’s duty of loyalty to the patient.

Defendants are not contesting the principle that the treating physician for a plaintiff should not be permitted to testify as a defense expert without the plaintiff’s consent. It is defendants’ position that Dr. Anhalt should not be characterized as a treating physician. I agree.

Dr. Anhalt never met plaintiff; he was not part of the treatment team; he had no relationship with plaintiff’s treatment team; he did not review the plaintiff’s medical records during the time he was discussing plaintiff’s case with plaintiff’s treating physician; he did not charge for making his expertise available; and he did not make any decisions regarding plaintiff’s treatment. There was no confidential relationship between plaintiff and Dr. Anhalt because of the absence of a physician-patient relationship.

Also, Dr. Anhalt did not owe plaintiff any duty of loyalty. He never assumed any responsibility to protect plaintiff’s interests vis-a-vis the interests of other persons. He was simply a volunteer making his expertise available to a physician in connection with that physician’s treatment of the patient.

In Irvin v. Smith, 31 P.3d 934 (Kan. 2001), the treating physician made a telephone call to obtain “a neurological consult” from Dr. Gilmartin, a child neurologist. This was a lengthy telephone call in which the physicians engaged in a detailed conversation about the condition, care, and treatment of the child. The treating physician telephoned Dr. Gilmartin because of his experience and expertise as a pediatric neurologist. Dr. Gilmartin testified that as a result of the conversation he had a complete picture of the child’s presentation and had jointly developed, with the treating physician, a plan for evaluation of the child. In addition, he agreed to see the child the next day, to carry out a formal consultation, and to assist in conducting a diagnostic test.

Before Dr. Gilmartin assumed responsibility for the patient, the patient’s condition deteriorated. The child’s parents brought a malpractice action against several physicians, including Dr. Gilmartin, based on allegations that the child’s symptoms had indicated an impeding shunt malfunction requiring immediate action.

The Supreme Court of Kansas upheld the ruling of the trial court granting Dr. Gilmartin’s motion for summary judgment on the ground that he did not owe a duty to the child because there was no physician-patient relationship. The court characterized the conversation between Dr. Gilmartin and the other physician as a type of telephone conversation that “takes place on a frequent basis in the medical profession and is vital to the treatment of patients.” Id. at 943. The court, citing case law of other jurisdictions, stated that:

“Courts have used great caution when responding to requests that they recognize legal duties within this medically important but legally ambiguous world of the curbside consultation. Indeed, the published decisions are unanimous in agreeing that extension of the physician-patient relationship to include this type of informal consultation would be contrary to public policy. ‘Imposition of liability under these circumstances would not be prophylactic but instead counter-productive by. stifling efforts and improving medical knowledge.’ ” Id. (citations omitted)

In Schrader v. Kohout, 522 S.E.2d 19 (Ga. Ct. App. 1999), a patient with a history of psychological problems brought a malpractice action against a psychologist with whom the patient’s treating psychologist had consulted. The trial court denied the consulting psychologist’s motion for summary judgment. The court of appeals reversed.

In that case, the plaintiff began treatment with the treating psychologist in 1990. A short time later, the treating psychologist began consulting with the defendant psychologist concerning the patient’s, care because of the defendant’s expertise in dissociative'disorders. The consultations began in May 1991 and ended in December 1995. The defendant met with the treating psychologist individually during the first four consultations and the remainder were group consultations that included approximately five other psychotherapists. Treatment options were discussed extensively during the sessions which occurred bimonthly and lasted two hours. The treating psychologist paid a fee to the defendant for the consultation. However, the fee was paid personally by the treating psychologist and there was no evidence showing that the patient was charged for the defendant’s services.

The court ruled that this was not a physician-patient relationship because the defendant never assumed any control over the care of the patient.

In Reynolds v. Decatur Memorial Hospital, 660 N.E.2d 235 (Ill. App. Ct. 1996), the minor plaintiff was brought to the emergency room and a treating pediatrician telephoned Dr. Fulbright at his home. She described the child’s conditions. At the end of the conversation, Dr. Fulbright suggested a spinal tap. Approximately an hour later, the pediatrician performed the spinal tap. The patient and his parents sued the hospital, other physicians, and Dr. Fulbright based on an incorrect diagnosis. The plaintiffs’ expert opined that Dr. Fulbright failed to meet the generally accepted standards of practice in the medical community by his failure to examine the child and the records before making a recommendation and by failing to follow through after being consulted.

The trial court granted summary judgment in favor of Dr. Fulbright. The appellate court affirmed. It stated that a physician-patient relationship which imposes obligations on the physician can only arise where the physician assumes responsibility for the patient. In this case, Dr. Fulbright did nothing other than answer an inquiry from a colleague. He was not contacted again; he did not charge a fee; and he never directed the actions of the pediatrician or other persons treating the child. The court, citing the case law of five other jurisdictions, stated that: “A doctor who gives an informal opinion at the request of a treating physician does not owe a duty of care to the patient whose case was discussed.” Id. at 239. (citations omitted)

The court followed this case law because it concluded that it would be contrary to the public interest to impose obligations on physicians who voluntarily give opinions to the treating physician who continues to assume responsibility for the patient’s care:

“Plaintiffs suggest that what needs to be done is to find a physician-patient relationship to result from every such conversation. The consequence of such a rule would be significant. It would have a chilling effect upon practice of medicine. It would stifle communication, education and professional association, all to the detriment of the patient. The likely effect in adopting plaintiff’s argument also would be that such informal conferences would no longer occur. To reiterate, this would inhibit the exchange of information and expertise among physicians and would not benefit the medical profession or persons seeking treatment.” Id. at 240. (citations omitted)

In Hill v. Kokosky, 463 N.W.2d 265 (Mich. Ct. App. 1990), the trial court entered summary judgment in favor of two physicians with whom the patient’s obstetrician had discussed the case. Neither physician had met with the patient, examined her, or reviewed her chart. They gave opinions based on the case history that the treating physician related to them.

The court of appeals affirmed the ruling of the trial court. The court stated that while this was an issue of first impression in this state, other jurisdictions that had considered this question concluded that in the absence of a referral, formal consultation or some other contractual relationship, no physician-patient relationship arises. In this case, the plaintiff had neither employed the defendants nor sought the defendants’ medical advice for treatment. The medical opinions were furnished to the treating physician as a colleague and not indirectly to the plaintiff as a patient. The opinions of the defendants did not constitute a prescribed course of treatment but were recommendations to be accepted or rejected by the treating physician as he saw fit. “We do not believe that this limited and remote connection to the case can be equated with ‘treatment,’ however, any more than the author of a medical treatise or article which Dr. Hole might have consulted could be considered to have ‘treated’ plaintiffs.” Id. at 267.

The court agreed with the conclusion reached in other cases that:

“The extension of a potential malpractice liability to doctors with whom a treating physician has merely conferred, without more, would unacceptably inhibit the exchange of information and expertise amongst physicians. This would benefit neither those seeking medical attention nor the medical profession. Under these circumstances, we decline to apply the duty of care which plaintiffs urge.” Id. at 268.

The case law distinguishes between the consulted physician who has no relationship with the consulting physician and the consulted physician who has a contractual relationship with the consulting physician or the hospital employing the consulting physician.

Consider Corbet v. McKinney, 980 S.W.2d 166 (Mo. Ct. App. 1998), where the court ruled that a specialist whom a treating physician contacted cannot be sued for medical malpractice:

“In contrast, where the consulted physician merely undertakes to advise the patient’s treating physician, has no explicit contractual obligation to the patient, treating physician, or treating hospital to provide care, and does not take actions which indicate knowing consent to treat a patient who has sought that treatment, such as by examining, diagnosing, treating, prescribing treatment for, or charging the patient, no relationship and no duty of care arises. Accordingly, courts which have been asked to determine the existence of a physician-patient relationship in factual situations similar to the one before us have found none.” Id. at 170.

Compare McKinney v. Schlatter, 692 N.E.2d 1045 (Ohio Ct. App. 1997), where the court ruled that a physician-patient relationship existed between the patient and on-call cardiologist under the following circumstances:

“We therefore hold, and in doing so are mindful that we are elaborating in the field of medical malpractice, that a physician-patient relationship can exist by implication between an emergency room patient and an on-call physician who is consulted by the patient’s physician but who has never met, spoken with, or consulted the patient when the on-call physician (1) participates in the diagnosis of the patient’s condition, (2) participates in or prescribes a course of treatment for the patient, and (3) owes a duty to the hospital, staff or patient for whose benefit he is on call. Once an on-call physician who has a duty to the hospital, its staff, or patients is contacted for the benefit of an emergency room patient, and a discussion takes place between the patient’s physician and the on-call physician regarding the patient’s symptoms, a possible diagnosis and course of treatment, a physician-patient relationship exists between the patient and the on-call physician.” Id. at 1050.

Plaintiffs contend that this case is governed by Marek v. Ketyer, supra. In Marek, the plaintiff sought a new trial on the ground that a treating physician (Dr. Beerman) had communicated ex parte with defense counsel and testified as a defense expert as to liability without the plaintiff’s consent in violation of Rule 4003.6. The issue that the court addressed was whether Dr. Beerman was a treating physician.

The minor plaintiff had been seen by Dr. Ketyer who referred the child to Children’s Hospital for testing and treatment. An echocardiogram was taken and reviewed by Dr. Beerman. He was a member of the cardiology team that was treating the child and he communicated his impressions about the results of the test and the information it provided to other members of the team. The malpractice lawsuit did not question the quality of the services that Dr. Beerman rendered.

The defendants contend that Dr. Beerman was no more than an impersonal reader of the echocardiogram who should not be characterized as a “treating physician” under Rule 4003.6 because he never spoke with the parents nor recommended any medication or therapy. The Superior Court disagreed; it ruled that he must be considered a treating physician because he reviewed the infant’s echocardiogram and communicated with members of the cardiology team about its results in connection with the child’s care. He billed the plaintiffs for his services and was paid. He rendered his services in the treatment of a child in an effort to see to her recovery.

Marek is readily distinguishable from the present case. In the present case, Dr. Anhalt was not a member of the team that was treating the plaintiff and he did not bill for his services. He simply provided advice and assistance to the treating physician which that physician could follow or not. Dr. Anhalt assumed no responsibility for the treatment of plaintiff.

CONCLUSION

The record includes a memo to Dr. Anhalt from the Pittsburgh dermatologist who initially diagnosed plaintiff with PNP thanking Dr. Anhalt for his assistance:

“We ‘in the hinterlands’ really appreciate having phone access to someone not only so knowledgeable about a particular subject, but willing to share his expertise in the interest of patient care. Thank you very much. (GA00092).”

Courts should not make rulings that will discourage this practice. When I consider the factors set forth in Pa.R.C.P. 127,1 conclude that Rule 4003.6 was not intended to cover the situation in which a physician is voluntarily giving advice to a treating physician for the purpose of assisting the treating physician in making decisions regarding the diagnosis and treatment of a patient.

ORDER

On March 28,2002, it is ordered that Rule 4003.6 does not preclude defendants from using Dr. Anhalt as an expert witness in these proceedings.

      . PNP is an abbreviation for paraneoplastic pemphigus which is an autoimmune disease affecting the skin.

      . Genentech manufactures Rituxan.

      . Johns Hopkins is the only place where a serum test may be done for diagnostic purposes. The serum test confirmed that plaintiff has PNP.

      . Under 42 Pa.C.S. §5929, a physician may not disclose any information “which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity.”

      . A defendant may call a plaintiff’s treating physician as a fact witness provided that there has been no ex parte communication between the defendant or the defendant’s counsel and the treating physician. In the present case, defendants’ representatives have had ex parte communications with Dr. Anhalt and defendants seek to call Dr. Anhalt as an expert witness.


author:
KLEINFELTER, P.J.,
     BRATTON, J.,

text:
    Janis v. AMP Incorporated

      C.P. of Dauphin County,
    no. 3246 S 1999.

      Michael J. Crocenzi, for plaintiff.

      Douglas G. Smith, for defendant.
    BEFORE: KLEINFELTER, P.J., CLARK AND BRATTON,
      JJ.

    April 4, 2002

      . Judge Bratton concurs in part and dissents in part.

   KLEINFELTER, P.J.,

Before the court is the motion for summary judgment of defendant AMP Incorporated, as well as the motion for summary judgment of plaintiff Michael D. Janis.

This is a case about an employment contract. Janis was an industrial engineer employed by AMP beginning in 1977. In 1992, AMP desired to send certain employees to its facility in Hermosillo, Mexico, to oversee its manufacturing operation located there. In June of 1992, Janis was interviewed for a position, during which, AMP provided him with a “summary of the policy provisions” which applied to his expatriate assignment. In addition, the document referred to a “Performance/incentive bonus plan” illustrated in an attached memorandum. Upon review of these documents, Janis accepted the Hermosillo assignment and signed the “summary of policy provisions” on June 24, 1992.

Upon accepting the assignment to Hermosillo, Janis sold his home in Wrightsville, Pennsylvania as well as his automobile. Janis moved to Mexico in August 1992, and began work at AMP’s Hermosillo facility. He reported to Don Brickner, director of the facility.

Janis’ assignment in Mexico appeared to proceed fairly well during the period between 1992 and 1997. However, in February of 1997, AMP informed Janis that he was no longer eligible to receive a bonus under the “summary of the policy provisions.” According to Janis, he raised no objection to this rescission because he feared that he would lose his position. Janis then continued to work at the Hermosillo plant until April 30,1999, when AMP terminated him.

Procedurally, this matter began with Janis’ complaint, filed on August 4, 1999, which drew preliminary objections from AMP on September 14, 1999. Janis submitted an amended complaint in response on October 4, 1999. In it, Janis brings three counts: Count I, breach of employment contract; Count II, breach of contract to pay bonuses; and Count III, breach of contract to provide a comparable position in the United States. AMP again filed preliminary objections on October 25,1999, which were resolved by order of this court, following briefing and oral argument, on March 14,2000. Thereafter, AMP filed an answer on April 6, 2000, with new matter alleging unjust enrichment and conversion. Janis replied on April 25, 2000.

The first matter at bar is AMP’s motion for summary judgment, filed August 16, 2001. Janis filed a response on September 17, 2001. Both parties have briefed their respective positions. Second is Janis’ motion for summary judgment, filed November 8, 2001, and accompanied by a supporting brief. AMP has not filed a response to Janis’ motion. The parties presented oral argument to a three-judge panel of this court on February 7, 2002. We begin with the well-established standard for resolving motions for summary judgment.

“ [S]ummary judgment is properly granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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.’ ... Summary judgment may be granted only in those cases where the right is clear and free from doubt. . . . The moving party has the burden of proving that there is no genuine issue of material fact.... Moreover, the record and any inferences therefrom must be viewed in the light most favorable to the non-moving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party....” Bigansky v. Thomas Jefferson University Hospital, 442 Pa. Super. 69, 73-74, 658 A.2d 423, 425 (1995), appeal denied, 542 Pa. 655, 668 A.2d 1119 (1995); see also, Green v. Paul Revere Insurance Group, 121 Dauph. 63 (2001).

Our first issue within AMP’s motion is whether an employment contract existed between AMP and Janis. Janis claims that the “summary of the policy provisions” constitutes an employment contract, while AMP counters that it does not, and fails to counter the “at-will” presumption of employment in Pennsylvania.

“ ‘As a general rule, there is no common-law cause of action against an employer for termination of an at-will employment relationship.’ Luteran [v. Loral Fairchild Corp., 455 Pa. Super. 364,] 688 A.2d [211,] 214 [(1997)] (citation omitted). ‘ “The sine qua non of the presumption is that except in rare instances, discharge will not be reviewed in a judicial forum.” ’ Id., quoting Scott v. Extracorporeal Inc., 376 Pa. Super. 90, 545 A.2d 334, 336 (1988).

“In order to rebut the presumption of at-will employment, a party must establish one of the following: (1) an agreement for a definite duration; (2) an agreement specifying that the employee will be discharged for just cause only; (3) sufficient additional consideration; or (4) an applicable recognized public policy exception.

“Luteran, 688 A.2d at 214 (citation omitted).” Rapagnani v. Judas Co., 736 A.2d 666, 669 (Pa. Super. 1999).

Janis contends that the presumption of an at-will employment arrangement with AMP is overcome because the “summary of the policy provisions” is an agreement for a definite duration. We agree. The terms of the “summary of the policy provisions” include the following.

“(2) The assignment is expected to last three years but no more than five years. Based on business needs, the employee may be returned to the United States prior to July, 1995 and the company may entertain a personal request to return sooner.” “Summary of the policy provisions” at p. 1.

AMP, the drafter of this agreement, has underscored the terms of duration set forth above, which suggests emphasis on a definite time period of Janis’ assignment. We believe these terms are sufficiently clear to establish that Janis’ assignment at the Hermosillo facility was contemplated by both parties to be between three and five years. Notwithstanding this perceived clarity, any ambiguity must be construed against AMP, the drafter of the agreement. Smith v. Windsor Group, 750 A.2d 304, 308 (Pa. Super. 2000).

We also agree with Janis that the “summary of the policy provisions” is assumed to have been renewed under the same or similar terms when Janis continued to render his services after the agreement expired after five years, on June 24, 1997. Kapustik v. Arnold City School District, 177 Pa. Super. 268, 272-73, 111 A.2d 169, 171 (1955). As we indicated above, the “summary of the policy provisions” is indeed an employment contract for a term of three years but for no more than five years. On its face, AMP was required to employ Janis for the three-year period between June 24, 1992, and June 24, 1995. In conformance with the terms of the contract, Janis actually was employed for the entire five-year term, until June 24,1997. Instead of the assignment terminating, however, Janis continued to render his services, and AMP continued to pay him, beyond June 24, 1997. This continuing performance by both parties caused the agreement to, in effect, “roll over” for a term similar to the prior agreement. The result was a new contract for a term of three to five years that could expire at the earliest on June 24, 2000. Because AMP terminated Janis on April 30, 1999 — nearly 14 months prior to the agreement’s earliest expiration — it is possible that a verdict could be rendered in favor of Janis for breach of this new contract.

We are convinced, as illustrated by the discussion above, that the presumption of Janis’ status as an at-will employee is overcome. We need not address Janis’ argument in support of sufficient additional consideration. Accordingly, Janis and AMP were both bound by the “summary of policy provisions” as a valid employment contract, the breach of which is subject to factual interpretations. Summary judgment as to Count I is therefore denied.

We next turn to AMP’s argument that summary judgment must be granted as to Count II, breach of contract to pay bonuses. AMP bases its argument on its contention that Janis was an at-will employee and therefore cannot bring a claim for breach of the bonus agreement since he failed to object when the retraction of the bonus plan was announced.

What must be initially distinguished is the difference between AMP’s failure to pay bonuses and its retraction of the bonus plan. The former speaks to the anticipatory nature of earning a bonus; namely, that a bonus plan may exist, but the employee has failed to meet the standards of eligibility to earn a bonus. This in no way implicates the retraction of consideration; in this case, the bonus plan itself. Instead, the bargained-for bonus plan remains in place, but the employee simply did not earn a bonus. Here, Janis claims that AMP cancelled the bonus plan and did not merely fail to award a bonus. This is an integral element of consideration in this employment contract, the rescission of which may amount to breach. Although Janis did not object to AMP’s unilateral cancellation of the bonus plan in 1996, he did file his cause of action within the four-year statute of limitations in 1999. Therefore, AMP’s motion for summary judgment as to Count II is denied.

AMP next addresses its motion as to Count III, breach of contract to provide a comparable position within the United States. The contract provides:

“(3) Upon completion of the assignment, the employee will be returned to a comparable position in the United States.” “Summary of the policy provisions” at p. 1.

Here, we are in agreement with AMP that paragraph three governs when an expatriate assignment was completed, not when an employee is terminated, as in this case. The pertinent provision for termination is found in the following paragraph.

“(15) In the event the company terminates your employment while abroad, the company will pay moving expenses for your household goods and furniture as outlined in the policy. Expenses for you and your family to return to your point of origin will be paid according to the policy provided you return within 30 days of termination. No expenses will be paid after your return to your point of origin.” “Summary of the policy provisions” at p. 2.

Since we hold that the “summary of the policy provisions” is indeed a contract, we must hold its provisions enforceable. Paragraph 15 of the agreement is clear regarding termination and we must grant AMP’s motion as to Count III.

AMP also moves for judgment regarding its counterclaims of unjust enrichment and conversion. We may quickly dispose of AMP’s motion regarding its claim of overpayment of vacation and severance pay, as Janis effectively concedes this by not offering a response.

We cannot, however, grant AMP’s motion as it concerns Janis’ failure to vacate his company-owned home. First, we reject Janis’ argument that because the company home is in Mexico, this court is without jurisdiction. Issues of jurisdiction must be raised via preliminary objections. Pa.R.C.P. 1028(a)(1). By failing to raise jurisdiction by preliminary objection to AMP’s answer with new matter, Janis has waived this issue. Notwithstanding this procedure, however, we hold that this court may entertain a cause of action regarding the subject matter of a contract created within its jurisdiction. In this case, the subject is the monetary value of consideration conferred by the employment agreement, i.e., the fair rental value of the house. AMP’s claims do not address actual physical possession, which concededly would be of Mexican jurisdiction. The essence of the matter of whether Janis is liable for conversion or unjust enrichment is a matter of factual interpretation.

Our final matter for disposition is Janis’ motion for summary judgment. Although we have indicated that the “summary of the policy provisions” is indeed an employment contract that renewed itself after its expiration, we are not convinced that the circumstances regarding its breach are without factual discrepancies and can be resolved as a matter of law. This also holds true for Janis’ claim that AMP breached this contract by revoking the bonus plan. Finally, by granting AMP’s motion pertaining to Count III, failure to provide a comparable position in the United States, Janis’ corresponding motion is obviously denied.

Accordingly, we enter the following:

April 9, 2002

ORDER

And now, April 4, 2002, the following is hereby ordered:

(1) The motion for summary judgment of defendant AMP Incorporated regarding plaintiff Michael D. Janis’ Counts I and II is denied;

(2) defendant’s motion for summary judgment regarding plaintiff’s Count III is granted;

(3) defendant’s motion for summary judgment regarding its counterclaim alleging overpayment of vacation and severance pay is granted;

(4) defendant’s motion for summary judgment regarding its counterclaim of failure to vacate company home is denied;

(5) plaintiff’s motion for summary judgment is denied.

BRATTON, J.,

CONCURRING AND DISSENTING STATEMENT

I concur in the foregoing opinion as to the denial of plaintiff’s motion for summary judgment, as to the denial of defendant’s motion for summary judgment regarding its counterclaim for alleged failure of the plaintiff to vacate the company home and as to the granting of defendant’s motion for summary judgment regarding its counterclaim for alleged overpayment of vacation and severance pay and regarding Count III of the complaint.

I respectfully dissent, however, as to the denial of the defendant’s motion for summary judgment as to Counts I and II of the plaintiff’s complaint.

I do so because I simply do not agree that the “summary of policy provisions,” even if it sets out terms which may arise to a contract of employment, provides sufficiently specific terms of “definite duration” to overcome the presumption of at-will employment. This “summary of policy provisions” only provides that the plaintiff’s assignment in Mexico “is expected to last three years but no more than five years.” (emphasis added) Such an expectation is not, I submit, sufficient to establish a definite duration of the employment. Further, paragraph 15 of that self same “summary of policy provisions” expressly anticipated the possibility of termination of the employee and limited the company’s responsibilities in such event.

      . We admonish AMP’s counsel for failing to respond to Janis’ motion for summary judgment and direct their attention to Pa.R.C.P. 1035.3:
      “(a) The adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within 30 days after service of the motion identifying
      “(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
      “(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced. ...
      “(d) Summary judgment may be entered against a party who does not respond.” (emphasis added)
      Had both motions not encompassed virtually identical issues, this court would have strongly considered granting judgment in favor of Janis for AMP’s failure to respond.


author: MOTTO, J.,

text:
    Commonwealth v. Halfhill

      C.P. of Lawrence County,
    no. 742 of 2001.

      Robert A. Barletta, for Commonwealth.

      Joseph J. Kearney, for defendant.
    September 23, 2002
   MOTTO, J.,

—Before the court

for disposition is defendant’s omnibus pretrial motion consisting of a motion to suppress and motion for writ of habeas corpus.

The precise issue raised by the defendant is whether, in a DUI investigation, may the police utilize a search warrant to obtain the blood test and urine screen test results contained in the medical record of treatment rendered to defendant following a motor vehicle accident, where the tests were administered for independent medical purposes and not pursuant to any procedure authorized by the Motor Vehicle Code for testing at the request of the police or emergency room personnel.

Late in the afternoon of April 14, 2001, defendant, Donald F. Halfhill, lost control of his motorcycle while exiting State Route 422 onto State Route 60 in Union Township, Lawrence County. Skidding onto the grass medial, defendant suffered substantial injury when thrown from his motorcycle. Soon thereafter, State Trooper Clyde Jones arrived on the scene.

As immediately as circumstances would allow, defendant was life-flighted to Allegheny General Hospital in Pittsburgh, Pennsylvania. Due to the exigent demands of defendant’s injuries, Trooper Jones did not conduct field sobriety tests at the scene of the accident. The trooper did detect a strong smell of alcohol about defendant’s person.

The treatment rendered to the defendant at the hospital included administering tests for independent medical purposes. These tests included a blood serum test and a urine screen. One month and one day later, on May 15, 2001, Trooper Jones applied for a search warrant to obtain the defendant’s medical records. The search warrant was granted and the test results were received as a part of the medical records. The results of the tests indicated defendant had a blood serum of .185 and that the urine screen was positive for opiates, barbiturates and benzodiazepines.

In the course of the police investigation, it was discovered that defendant’s motor vehicle operating license had been suspended previous to, and as of, the April 14, 2001 accident. Defendant was charged with four counts of driving under the influence (75 Pa.C.S. §3731(a-4)), driving at unsafe speed (75 Pa.C.S. §3361), driving while operating privileges were suspended (75 Pa.C.S. § 1543(a)) and driving without registration and certification of title (75 Pa.C.S. §1301(a)).

The defendant’s motion to suppress seeks to suppress from evidence the medical records, including results of the blood test and urine screen. The request for a writ of habeas corpus seeks to dismiss the DUI charges for lack of evidence; the purported lack of evidence assumes the blood and urine test results are suppressed. No charges against defendant other than the driving under the influence charges are addressed in the omnibus pretrial motion. Accordingly, the issue of sufficiency of the evidence relating to the summary offenses charged are reserved for trial.

In his attempt to have the defendant’s medical records suppressed, defendant relies heavily on Commonwealth v. Shaw, 564 Pa. 617, 770 A.2d 295 (2001). That case presented the issue of whether the authorities could obtain the results of a blood test taken by a hospital for independent medical purposes when the authorities sought access to the results upon the strength of a mere subpoena without the benefit of a search warrant. Although the trooper had Mirandized defendant and advised him of the implied consent law, the blood sample in question was taken for independent medical purposes, and not at the request of the trooper, and not pursuant to 75 Pa.C.S. §3755 authorizing emergency room personnel to take blood samples if probable cause exists to believe a violation of section 3731 of the Vehicle Code was involved. In Shaw, the evidence was suppressed because a subpoena was not deemed to be sufficient. In finding the evidence suppressible, the court reasoned that Article I, Section 8 of the Pennsylvania Constitution provides protection to areas where an individual has a reasonable expectation of privacy and that reasonable expectation of privacy would extend to blood taken for medical treatment. Id. That rationale led the court to hold that blood alcohol content tests results “must be suppressed where the blood was drawn for independent medical purposes and the results were released to the police without a warrant or exigent circumstances.” Commonwealth v. Denmark, 800 A. 2d 947 (Pa. Super. 2002) (summarizing the holding in Shaw). The deficiency arises because a subpoena used as an investigatory tool without judicial review constitutes a warrantless search of defendant’s medical records barred by expectations of privacy provided by Article I, Section 8 of the Pennsylvania Constitution. Commonwealth v. Geary, 53 D.&C.4th 367 (Fayette Cty. 2001).

Although an individual has a substantial privacy interest in his medical records, like all other personal interests, that interest must be balanced against society’s interests. Commonwealth v. Riedel, 539 Pa. 172, 651 A.2d 135 (1994). The balancing mechanism is reasonableness. Unlike warrantless searches, searches performed under a warrant provide judicial review. It is in the forum of judicial review where the interest of the individual is put in the scales opposite society’s interests. The balancing test is reasonableness and its measure is probable cause. Commonwealth v. Riedel, 539 Pa. 172, 651 A.2d 135 (1994).

While Shaw and Geary suppressed blood alcohol content test results, those results were not obtained by virtue of a search warrant. Shaw and Geary, supra. Both of those decisions made provisions for a different result where test results were retrieved with the benefit of a warrant. In Geary, the court stated that the test results could not be “released in the absence of a search warrant or other court order issued upon a finding of probable cause by an independent judicial officer.” Geary, supra at 376. In Shaw, the results were not available to the authorities because the authorities did not request the test and were not sought under a warrant:

“The implied consent provision of 75 Pa.C.S. § 1547(a)(1) [a statute implying consent of drivers to alcohol tests done at the behest of police officers on reasonable grounds] does not eliminate the need to obtain a warrant to seize medical records, but only to request and conduct chemical tests. The reason for this is obvious. Due to the evanescent nature of the evidence of blood alcohol content, there is an immediate need to obtain samples of blood for testing. When blood samples have been drawn for medical purposes and the results of blood alcohol content tests are part of a patient’s medical records, the evidence will not have dissipated during the time that application for a search warrant is being made.” Shaw, supra at 299 (emphasis added), quoting the concurring opinion in Commonwealth v. Riedel, 539 Pa. 172, 651 A.2d 135 (1994).

As the rationale supporting balancing the expectation of privacy of these test results against legitimate societal interest through the judicial reviewing mechanism of a search warrant seems reasonable to this court and as precedent makes way for admission of these results obtained under a search warrant, this court will deny the motion to suppress. With that evidence available, the writ of habeas corpus seeking to dismiss the charges for lack of evidence must also be denied.

ORDER

And now, September 23,2002, for the reason set forth in the accompanying opinion of even date wherewith, it is ordered, adjudged and decreed that defendant’s omnibus pretrial motion in the nature of a motion to suppress and motion for writ of habeas corpus is denied.


author: JAMES, J.,

text:
    Commonwealth v. Krause Trucking Inc.

      C.P. of Columbia County,
    no. 246 of 2002.

      Richard Knecht, for the Commonwealth.

      Don Bailey, for defendant.
    September 18, 2002
   JAMES, J.,

This summary criminal case is before this court from an appeal from the district justice court. Defendant is charged with “transporting foodstuffs in vehicles used to transport waste” in violation of 75 Pa.C.S. §4909(a)(l), which states:

“A person commits a violation of this section if he transports or knowingly provides a vehicle for the transportation of any food products or produce intended for human consumption in a vehicle which has been used to transport any municipal, residual or hazardous waste or any chemical or liquid, in bulk, which is not a food product or produce.”

The facts of this case are as follows. On January 14, 2002, at a legally established weigh station in Mifflin Township, a Pennsylvania Department of Transportation employee stopped a tractor-trailer rig owned by defendant and driven by John Bowser, who “did work for” defendant. PennDOT found the truck to be overweight and cited the driver. The PennDOT employee also determined from the driver that he was hauling a tractor full of red wheat number two to a local mill for cleaning processing into flour for the commercial baking industry, i.e., for human consumption. (There would also be a by-product that is not for human consumption.)

The truck driver and his records revealed that on the day before, at defendant’s instructions, the driver had loaded demolition material into the trailer in the Bronx, New York, and delivered it to an Ohio landfill. The demolition material consisted of “sheetrock, rock, dirt, carpet, plastic, paper, wiring, pipes,” and similar material. On January 12, 2002, the day after delivering the demolition material to the Ohio landfill, at defendant’s request the driver drove to Deerfield, Ohio, where the trailer was loaded with the red wheat number two. The driver then drove to Pennsylvania where he was stopped on the way to the processing mill.

Based on these additional facts, defendant was cited for a violation of “transporting” under 75 Pa.C.S. §4909(a)(1). In addition, PennDOT, in conjunction with the Pennsylvania Department of Environmental Protection, dumped the red wheat number two in a landfill and impounded defendant’s tractor-trailer rig.

The issue is whether the Commonwealth proved beyond a reasonable doubt that defendant transported any food product or produce intended for human consumption in a vehicle which has been used to transport any municipal, residual or hazardous waste or any chemical or liquid, in bulk, which is not a food product or produce.

Defendant is charged with “transporting” the red wheat number two. There is no culpability element required in defendant’s actions. Defendant’s actions need not be intentional, reckless, knowing, or negligent. Ignorance of this crime is not a defense. As written, the statute is a strict liability crime.

In Pennsylvania, penal statutes “shall be strictly construed.” 1 Pa.C.S. §1928. They are to be strictly constraed in favor of the accused. Commonwealth v. Darush, 256 Pa. Super. 344, 348, 389 A.2d 1156, 1158 (1978), citing Commonwealth v. Cunningham, 248 Pa. Super. 219, 375 A.2d 66 (1977). See also, Commonwealth v. Driscoll, 485 Pa. 99, 107, 401 A.2d 312, 319 (1979).

Since the case at bar is a criminal strict liability case, interpretation requires even greater scrutiny. The law is loathe to impose criminal liability upon persons when they have no stated criminal intent or mens rea, particularly when the penalty is great and their property is subject to forfeiture to the state. Thus, when a statute imposes strict liability, “due process requires that the proscribed conduct and range of penalties be unambiguously identified.” Commonwealth v. CSX Transportation Inc., 653 A.2d 1327, 1331 n.6 (Pa. Commw. 1995), citing Commonwealth v. Parker White Metal Company, 512 Pa. 74, 91, 515 A.2d 1358, 1367 (1986). 75 Pa.C.S. §4909 authorizes forfeiture, and “[sjtatutes authorizing forfeiture are to be strictly construed.” Commonwealth v. Smith, 562 Pa. 609, 615, 757 A.2d 354, 358 (2000), citing Commonwealth v. $2,523.48 U.S. Currency, 538 Pa. 551, 556-57, 649 A.2d 658, 660-61 (1994). As a result, analysis of this case requires that the language be strictly construed and that any ambiguities be resolved in favor of the defendant.

The facts of this case are simple. There is no question that defendant had transported municipal and/or residual waste in the trailer the day before transporting the red wheat number two. However, there is a question as to whether raw, unprocessed red wheat number two is “any food product or produce intended for human consumption. ” “Food product or produce” is defined by the statute as “[a]ny raw, cooked or processed edible substance, beverage or ingredient used or intended for use or for sale, in whole or in part, for human consumption.” 75 Pa.C.S. §4909(g).

The pivotal factual issue is whether unprocessed raw red wheat is a “food product or produce” as defined in the statute. It is certainly “raw.” But the Commonwealth presented no evidence that this red wheat was a “substance” or “ingredient” that was “edible.” This was raw, unprocessed material that had to be cleaned, tempered, and ground before it could be an ingredient that could be used for human consumption. There is a “fundamental rule of law which holds that the Commonwealth has the never shifting burden of proving all elements of the charged offense.” Commonwealth v. Darush, supra, 256 Pa. at 349, 389 A.2d at 1158. (citations omitted) In this case the Commonwealth has not proved beyond a reasonable doubt that the raw unprocessed red wheat number two was a “food product or produce” as defined by the statute.

Although this analysis of the facts and the statute may be considered technical by some, when strict liability is the standard and severe penalties are imposed, the statute must be strictly interpreted. This is particularly true with this statute which has been so artlessly drafted, with application and consequences that surely the legislators did not intend. Consider the following scenario. A person may remodel a room in his house and haul the residual waste consisting of old sheetrock or plaster, wire, pipes, glass, and carpet to the local refuse transfer station in his new pickup truck. On the way home, the person stops at a roadside market and picks up numerous baskets of tomatoes to can and takes them home in the truck. Under this statute, that person would be strictly liable, i.e., guilty, and subject to a $10,000 fine and mandatory forfeiture of the new truck. This result is surely not the intent of the law, although it is the effect.

Although it is not necessary to go further in the analysis of this case, this court would be remiss if it did not address constitutional issues which appear to be flaws in this statute. In addition to the fines imposed for a violation of this statute, 75 Pa.C.S. §4909(c) provides for forfeiture of the vehicle:

“Any vehicle or conveyance used in the commission of an offense under this section shall be deemed contraband and forfeited to the Department of Environmental Resources. The provisions of law relating to the seizure, summary and judicial forfeiture and condemnation of intoxicating liquor shall apply to seizures and forfeitures under this section. Proceeds from the sale of forfeited vehicles or conveyances shall be deposited in the Solid Waste Abatement Fund.”

This section directs that the forfeiture process must be in accord with due process hearing requirements under the Liquor Code (47 P.S. §6-602). The Liquor Code authorizes vehicle forfeitures where they are used to violate the liquor laws.

However, there is a significant contradiction within the forfeiture scheme of 75 Pa.C.S. §4909(c), which on its face provides for mandatory forfeiture of the vehicle. Yet, the Liquor Code procedure gives the court discretion, considering all of the circumstances, as to whether the vehicle should be forfeited. “[T]he court may, in its discretion, adjudge same forfeited and condemned as hereinafter provided.” 47 P.S. §6-602(e). (emphasis added) A court may exercise its discretion in determining whether a vehicle transporting untaxed liquor should be forfeited and condemned. Commonwealth v. One 1957 Chevrolet Sedan, 191 Pa. Super. 179, 182-83, 155 A.2d 438, 440 (1959).

“Although there is a strong presumption of constitutionality of all lawfully enacted legislation, a statute or a provision of a statute will be found unconstitutional when the statute in question clearly violates the constitution.” Reeves v. Pennsylvania Game Commission, 136 Pa. Commw. 667, 679, 584 A.2d 1062, 1068 (1990). (footnote omitted) This inconsistency in the forfeiture procedure under 75 Pa.C.S. §4909(c) appears unconstitutional since it establishes a contradictory procedure and, thus, fails to afford defendant due process under the United States Constitution.

In addition, this court is concerned that the forfeiture procedure in this statue is unconstitutional because it mandates forfeiture of the vehicle, regardless of the value of the vehicle and the attendant circumstances of each individual case. Forfeiture may be considered monetary punishment and, as such, subject to the limitations of the excessive fines clause of the Eighth Amendment of the United States Constitution. See Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801 (1993), which discusses the Eighth Amendment, the excessive fines clause, and forfeitures in detail. Although the value of the vehicle in the present case is not part of the record, the tractor-trailer rig’s value appears to be significant. Forfeiture of such a vehicle, particularly in a strict liability case, could be excessive and violative of the Eighth Amendment.

Although this court has made observations concerning the constitutionality of this statute, it is not necessary to rule on the statute’s constitutionality. A court will not pass on a constitutional question unless absolutely necessary in order to decide the case before it, Krenzelak v. Krenzelak, 503 Pa. 373, 379, 469 A.2d 987, 990 (1983), and unless the determination is essential to a disposition of the case. Altieri v. Allentown Officers’ & Employees’ Retirement Board, 368 Pa. 176, 180, 81 A.2d 884, 886 (1951). The courts will not reach constitutional issues where the matter can be decided on nonconstitutional grounds. P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999). This court has found that the Commonwealth has not proved its case beyond a reasonable doubt. Therefore, it is not necessary to address the constitutional concerns.

However, this court calls upon the legislature to redraft this legislation which addresses an important problem. Clearly, food should not be transported in contaminated vehicles such as garbage trucks. The present legislation appears to have been hastily drafted without regard to clarity, details, and fairness. The United States Supreme Court has eloquently spoken about the importance of clarity vis-a-vis due process:

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone than if those boundaries of the forbidden areas were clearly marked.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-99 (1972). (citations and specific quoted acknowledgements omitted)

The Pennsylvania Superior Court has given guidance regarding strict construction of penal statutes:

“All penal provisions should be strictly construed, and ... where an ambiguity exists in the language employed by the legislature in a penal statute, it should be interpreted in a light most favorable to the criminally accused. While strict construction of penal statutes is required, however, courts are not required to give words of a criminal statute their narrowest meaning or disregard evident legislative intent. Indeed, it is a clear principle of our jurisprudence that where a statute is unclear on its face, resort must be taken to the intent of the General Assem-' bly in enacting the provision, paying heed to such matters as the occasion and necessity for the statute, the circumstances underlying its enactment, the mischief to be remedied, and the object to be obtained. Moreover, the legislature is presumed, in drafting that statute, not to have intended a result which is absurd.” Commonwealth v. Kinney, 777 A.2d 492, 494 (Pa. Super. 2001), citing Commonwealth v. A.W. Robl Transport, 747 A.2d 400, 403 (Pa. Super. 2000). This court submits that if an enacted statute is ambiguous, contradictory, and constitutionally infirm, the legislature has an obligation to redraft the statute to assure that its meaning is clear, its goal is achieved, and its result is fair and just.

Any legislation addressing “transporting foodstuffs in vehicles” should contain more specific definitions of the targeted violators so that the average innocent citizen does not get caught in the legal web. There must be more details concerning the “foodstuffs” covered by the law, the manner in which they must be transported, and the cleanliness of the vehicles. For example, a washed and disinfected vehicle used to transport construction material may be more suitable to carry food products than a truck that always carries food products but is never cleaned and contains rotted food remnants.

Additionally, any statute should contain clear culpability requirements and reasonable forfeiture requirements, which confer discretion upon the courts so that the penalty fits the crime and the facts, and so that injustices can be avoided. In society’s rush to impose mandatory sentences and punishment, injustices are numerous and the average person is often the victim of the inequities, while the more severe violators, who deserve severe punishment, avoid detection.

Based on the facts of this case, the court issues the following verdict:

VERDICT

And now, September 18, 2002, the court finds the defendant not guilty of violating 75 Pa.C.S. §4909 (a)(1).

      . The-load was dumped and the truck was impounded and continues to be impounded without a court order or any due process review.

      . “Municipal waste” and “residual waste” are defined in the “Solid Waste Management Act” at 35 P.S. §6018.103 and also in the “Municipal Waste Planning, Recycling and Waste Reduction Act” at 53 P.S. §4000.103.

        “ ‘Municipal waste.’ Any garbage, refuse, industrial lunchroom or office waste and other material including solid, liquid, semisolid or contained gaseous material resulting from operation of residential, municipal, commercial or institutional establishments and from community activities and any sludge not meeting the definition of residual or hazardous waste hereunder from a municipal, commercial or institutional water supply treatment plant, waste water treatment plant, or air pollution control facility.” 35 P.S. §6018.103.
      “‘Residual waste.’ Any garbage, refuse, other discarded material or other waste including solid, liquid, semisolid, or contained gaseous materials resulting from industrial, mining and agricultural operations and any sludge from an industrial, mining or agricultural water supply treatment facility, waste water treatment facility or air pollution facility, provided that it is not hazardous. The term ‘residual waste’ shall not include coal refuse as defined in the ‘Coal Refuse Disposal Control Act.’ ‘Residual waste’ shall not include treatment sludge from coal mine drainage treatment plants, disposal of which is being carried on pursuant to and in compliance with a valid permit issued pursuant to ‘The Clear Streams Act.’ ” 35 P.S. §6018.103.
      “Municipal waste” and “residual waste” are essentially defined in the same manner in the “Municipal Waste Planning, Recycling and Waste Reduction Act” at 53 P.S. §4000.103.

      . The forfeiture procedure under the Liquor Code appears to be precisely such a procedure.