author: FURBER and ALBRIGHT, JJ.,

text:
    In re Appeal of Realen Valley Forge Greenes Associates

      C.P. of Montgomery County,
    no. 99-16287.

      Marc B. Kaplin, for Realen Valley.

      Alan E. Boroff, for intervenor.

      Joseph J. McGrory Jr., for Upper Merion Township Zoning Hearing Board.

      Thomas D. Rees, for [unknown].
    April 12, 2001
   FURBER and ALBRIGHT, JJ.,

On November 13, 1997, Realen Valley Forge Greenes Associates filed a validity challenge pursuant to sections 909.1 and 916.1(a) of the Municipalities Planning Code, 53 P.S. §§10901.1 and 10916.1(a). This challenge asserts that the AG-agricultural district in Upper Merion Township, Montgomery County, is invalid spot zoning, arbitrary and irrational legislation, and special legislation.

The Upper Merion Township zoning hearing board held hearings on 14 evenings, beginning February 4,1998 and ending on June 15, 1999. On August 13, 1999, that board issued a decision, containing extensive findings of fact and conclusions of law, from which an appeal was taken to this court on September 9, 1999. We considered this appeal on the record made before the zoning hearing board and the briefs and arguments of counsel. On December 1,2000, the undersigned entered an order affirming the Upper Merion Township zoning hearing board, in response to which Realen filed its appeal to the Commonwealth Court, thereby making necessary this opinion.

Realen asserts on appeal that, among other things, the decision of the board was not supported by substantial evidence. In its briefs submitted to this court, Realen emphasizes the testimony of its witnesses, and relies heavily on the testimony of John Rahenlcamp, who is characterized as the township’s witness.

When the common pleas court does not take additional evidence, its scope of review and that of the Commonwealth Court are identical. The courts must determine whether the zoning hearing board’s findings are supported by substantial evidence, and whether the board abused its discretion or committed an error of law. Lower Allen Citizens Action Group Inc. v. Lower Allen Township Z.H.B., 93 Pa. Commw. 96, 500 A.2d 1253 (1985). In Lower Allen, the appellant, as does the appellant in this case, asserted that the court and board disregarded its overwhelming testimony. Although there, as here, an impressive amount of evidence and testimony was presented to the board by the challenger which is contrary to the board’s findings, this does not mean that the board’s findings are unsupported by substantial evidence. On the contrary, it is the board’s function to weigh the testimony of the witnesses and assign it appropriate evidentiary weight. The board may reject even uncontradicted testimony, and does not abuse its discretion by choosing to believe the opinion of one expert over that of another. Lower Allen at 105, 500 A.2d at 1258. Its findings may be set aside only when there has been a capricious disregard of competent testimony, which is “a disbelief of testimony which someone of ordinary intelligence could not possibly challenge or entertain the slightest doubt as to its truth.” Lower Allen at 105, 500 A.2d at 1258.

We reviewed the entire record in this matter and conclude that the board’s comprehensive decision is supported by substantial evidence, and that there was no capricious disregard of competent evidence. Each finding of the board is supported by an accurate reference to the record, with the following facts cited in support of the board’s decision.

Applicant Realen, a Pennsylvania general partnership, is the equitable owner of the premises, known as the Valley Forge Golf Club, with acknowledged standing (exhibit P-1) to seek a change in the zoning classification of the subject property which is currently zoned AG-agricultural. (Exhibit P-3.)

The property in question consists of 135 1/2 acres located in the King of Prussia area of the township. It is completely surrounded by roads, namely, North Gulph Road, Guthrie Road, West DeKalb Pike, and North Warner Road; no public roads traverse it. Excluding the portion that lies within the lines of the rights-of-way, its net area is 125 acres. (N.T. 117, 218, 242-43, 294, 455, 1114,1132; exhibits P-3A, P-13.) This land has been used as a golf course since the 1920s, prior to the enactment of the township’s first zoning code in 1942. (N.T. 151, 217-18, 243, 472, 1571.) It has been zoned AG since that district was created in 1953. (N.T. 248-49, 458, 1123.) Prior to that time, it was zoned Rl-residential. (N.T. 341.) The property is contiguous to two other properties zoned AG-agricultural, one of which is located to the north, and identified as the right-of-way for the Pennsylvania Turnpike’s Valley Forge interchange, while the other is positioned to the southwest, contains a residence and is believed to be non-conforming in area and width. (N.T. 119-21; exhibit P-3A.)

Across North Gulph Road lies an area zoned SM-suburban metropolitan, within which district there is located a combination of restaurant, hotel and office uses. Beyond North Warner Road is found an area zoned C-2 commercial, containing a Home Depot store, a bank, a gas station and a convenience store, and, below DeKalb Pike, within an AR-administrative research district, are located a number of office buildings. To the west, as one crosses the boundary line of Upper Merion Township, Montgomery County into Tredyffrin Township, Chester County, there are to be found three different zoning districts, consisting of an HO-hotel office district, a P-professional office district and the Glenhardie Condominium situate within the OA-office apartment district. (N.T. 124-26; exhibits P-3a, P-9.) Specifically, the surrounding properties are:

499 North Gulph Road, 0.776 acres, zoned SM, with a restaurant;
500 North Gulph Road, 5.32 acres, zoned SM, with an office building;
480 North Gulph Road, 10.07 acres, zoned SM, with a 265-room hotel and restaurant;
460 North Gulph Road, 5.84 acres, zoned SM, with an office building;
The Turnpike Toll Plaza, 7.33 acres, zoned AG;
200 North Warner Road, 7.25 acres, zoned C-2, with an office building;
990 DeKalb Pike, 12.2 acres, zoned C-2, with a home center and a bank;
1036 West DeKalb Pike, 0.661 acres, zoned C-2, with a gas station and mini market;
1030 Continental Drive, 2.68 acres, zoned AR, with an office building;
120 South Warner Road, 1.508 acres, zoned AR, with an office building;
1101 West DeKalb Pike, 1.648 acres, zoned AR, with an office building;
1111 West DeKalb Pike, 1.49 acres, zoned AR, with an office building;
1100 Drummers Lane (Tredyffrin Township), 10.43 acres, zoned HO, with a 150 room hotel;
1255 and 1265 Drummers Lane (Tredyffrin Township), 10 acres, zoned P, with two office buildings;
1275 Drummers Lane (Tredyffrin Township), 5.3 acres, zoned P, with an office building;
1285 Drummers Lane (Tredyffrin Township), 3.9 acres, zoned P, with an office building; and,
Glenhardie Condominiums (Tredyffrin Township), 81.5 acres, zoned O A, 449 residential condominium units and a golf course. (N.T. 130-50, 290; exhibit P-10.)

The assessed values of these properties run from three to 22 times the assessed value per acre of the subject premises which are commonly referred to as the Valley Forge Golf Club. (N.T. 153-54.) All of the aforementioned properties are separated from the golf course by public roads (N.T. 243) and none were ever used as a golf course or made a part of one. (N.T. 257.)

Those of the properties identified above, which are located in Upper Merion, were all, at one time, a part of the original AG district, consisting of 1773 acres plus the Valley Forge Park. (N.T. 343; exhibit P-16.) The township’s 1959 comprehensive plan stated that the AG zone was established as a zone of then undeveloped land for which future uses could not be foreseen with sufficient assurance to make specific recommendations at that time. That plan explained that this area was to be held in reserve, pending further development or the implementation therein of a particular use that might be beneficial to the township. (N.T. 346; exhibit P-17.)

Over the years the AG district was reduced in size as components of it were rezoned. (N.T. 348.) On September 7, 1956, the township’s planning consultant, John Rahenkamp, wrote a letter to the chairman of the township planning commission, stating that the AG district was created as an interim measure to protect the Valley Forge Park area, provide for a residential use, and delay sporadic “ribbon” development until a desirable use, “even though it were commercial,” could be assured for the golf course and other adjacent open land. (N.T. 349-50; exhibit P-18.)

As indicated above, since the date of its creation, portions of the AG district have been rezoned, many to commercial uses, reducing the district to its current parameters containing the golf course and the two other properties previously identified. The last such change or reduction in the district’s size occurred in 1985. (N.T. 388-89) with the most significant revisions taking place between 1955 and 1960, when areas including the present Valley Forge Industrial Park, King of Prussia Mall, General Electric, Acme and Valley Forge Convention Center areas were rezoned. (N.T. 371-82, 458; exhibits 19A-D, 20.)

With respect to the golf course, which is the subject of this appeal, in 1967, the then owners of the property were rebuffed in their attempt to secure a partial rezoning of the premises. (N.T. 391-99; exhibits P-21, P-22, P-23, P-24.) From 1964 to 1970, the township took a number of steps, which never came to fruition, to acquire the property. (N.T. 409-23; exhibits P-25, P-26, P-27, P-28, P-29.)

During 1982 and 1983, Acorn Development Corporation, a former equitable owner, made several unsuccessful attempts to secure a rezoning of the premises. (N.T. 426-29; exhibits P-30, P-31, P-32), though, as recently as 1997, the board of supervisors offered to purchase the property for $4,800,000. (N.T. 430; exhibit P-33.)

On August 17,1987, the township’s zoning ordinance was amended to add cluster overlay as a conditional use to the AG district, and on February 25, 1991, the ordinance was again amended to permit therein the operation of personal care facilities as a conditional use. (N.T. 1182.)

Realen presented two proposals for development of the subject property, one with a residential component that conforms with Tredyffrin Township’s OA criteria (exhibit P-14B), and one with an office component that conforms with Upper Merion Township’s C-2 criteria. (N.T. 299-319; exhibit P-14B.)

At the hearings conducted before the municipality’s zoning hearing board, several of Realen’s witnesses expressed the opinion that none of the uses specifically permitted in the AG district, either as of right, by special exception or conditional use, other than a golf course could be built on the premises because they either conflict with the township’s comprehensive plan or are otherwise inappropriate for the premises. (N.T. 154-75,190-97, 232-34, 247-48, 501, 591-603.) The planner hired by the township to analyze the AG district in 1984, and for this application, expressed the opinion that single family detached dwellings are not a logical use for the site, and of the special exception uses, only three, educational, religious and philanthropic uses; laboratory uses; and golf course use could be located on the property feasibly. (N.T. 551-53.)

Single family dwellings appear to be a viable use for the premises, although, perhaps not ideal, (N.T. 682,780) while educational, religious and philanthropic uses are, certainly, appropriate activities to which the premises in question might subscribe, as evidenced by the Baptist Center which lies in close proximity to the golf course. (N.T. 683, 784.) Hospitals, convalescent homes and assisted living facilities are also permitted uses (N.T. 683-84, 784-85) capable of implementation upon the applicant’s property. Such would also be the case with regard to laboratories, scientific, agricultural or industrial research uses, not to discount the fact that a 2.7-million square-foot facility could be built on this site. (N.T. 684,689-91,789-90,1445-46,1449.) Furtherrhore, the existing golf course use remains a practical application for the subject property, without discounting the commitment of the premises to a single family cluster use which, though perhaps not an ideal utilization of the land, might prove feasible when considering the recent ongoing increase in house prices and the premiums often paid for the dwindling stock of available housing lots. (N.T. 685.) Personal care facilities are also much in demand and represent the type of activity easily suited to a large site such as ones on which a 1250 unit complex could be developed. (N.T. 685,691-92,808-09,1100-12, 1162-63.) Indeed, the parties stipulated that the existing golf course is a feasible use for the subject premises, the evidence indicating there are not presently enough golf courses in the area to meet the ever-rising demand necessitated by the rapidly increasing number of golfers. (N.T. 694, 763-64.)

The property here under review differs from surrounding parcels, not only because it supports a golf course, but also as a result of its significant elevation changes, abundant vegetation and size, which makes it considerably larger than the surrounding properties, which are, in comparison, relatively small. (N.T. 749-50, 761-62, 1114, 1122, 1141.) With its 135 acres of nearby vacant land, the subject property is identified as the fifth largest property situate within Upper Merion Township. (N.T. 749, 1115-17.) While an argument might be made that the existing AG zoning may not be the most optimal one in terms of its application to the Realen premises, the permitted uses which may be made of the ground are practical and reasonable.

Planners recognize that roads and property lines are principal features used to create zoning districts. (N.T. 1133-34, 1142.) A site’s size can be a critical factor in whether it should be looked at as a separate zoning district. (N.T. 1141-42.) The fact that the property’s longest single boundary line abuts another county is another reason to look at this site differently from adjoining properties. (N.T. 1143.)

Realen asserts that the court erred in determining that the present zoning of the premises did not constitute spot zoning, was not arbitrary and irrational, and was not unlawful special legislation. While the assignments of alleged error are based upon different concepts, Realen’s assertions must fail for the same and/or similar reasons, which are hereinafter discussed.

AG-agricultural districts are established by article IV of the Upper Merion Township zoning ordinance of 1942, as amended, and section 165-10 thereof sets forth the use regulations applicable to properties located in that district, and providing that:

“A building may be erected, altered or used and a lot may be used or occupied for any of the following purposes and no other:
“(A) Single-family detached dwelling.
“(B) Conversion of single-family detached dwelling, subject to the provisions of article XXXI, §165-212, herein.
“(C) Agriculture,
“(D) Municipal uses ...
“(E) Any of the following purposes when authorized as a special exception:
“(1) Educational, religious, philanthropic use, excluding correctional or penal institution.
“(2) Day camp.
“(3) Hospital, convalescent home, sanatorium.
“(4) Club, fraternity house or lodge, provided that the principal activity shall not be one which is customarily carried on as a business and provided that all services shall be for members and their guests only.
“(5) Passenger station for public transportation, telephone central office, other public utility use.
“(6) Radio and television transmitting station and towers, except those erected and operated by federally licensed amateur radio operators on land owned by them and occupied by them as their dwelling places, which stations and towers shall be considered as accessory uses on the same lot with and customarily incidental to a dwelling house under subsection G of this section ...
“(7) Laboratory for scientific, agricultural or industrial research, provided that:
“(a) There is no greater emission of smoke, noise, dust, odor or other disturbance than that customarily permitted in any residential district.
“(b) All activities, other than parking, shall be conducted wholly within an enclosed building, including storage of materials.
“(c) No manufacturing shall be carried on, except that fabrication and testing of prototypes are permissible, subject to the other requirements hereof.
“(d) No building shall be erected or used which is nearer to the front or side lot lines than 200 feet; no parking shall be allowed nearer than 50 feet to said lot lines; and the natural vegetation within the open space thus provided shall be maintained.
“(8) Community center, noncommercial park, athletic field, recreational use.
“(9) Golf course, excluding golf driving range and miniature golf course.
“(10) Riding academy.
“(11) Cemetery, provided that the parcel devoted to this use shall contain not less than five acres.
“(F) Signs, subject to the provisions of article XXVII, herein.
“(G) Accessory use on the same lot with and customarily incidental to any of the foregoing permitted uses.
“(H) Cluster development overlay as a conditional use in accordance with the provisions of article XIV, herein.. .
“(I) Personal care facility as a conditional use in accordance with section 165-219.1

The board found, and we agree, that the premises can be used for single-family detached dwellings under subsection A, the use permitted as of right. The board found, and we agree, that it can be used for the following uses authorized by special exception under subsection E: (1) educational, religious or philanthropic use, (3) hospital or convalescent home, (7) laboratory for scientific, agricultural or industrial research, and (9) golf course, its present use. The property can also be developed for the two conditional uses authorized by the municipality’s zoning ordinance, namely, as permitted under subsection H, and a personal care facility as prescribed under subsection I.

Realen’s expert witnesses asserted, and its counsel argues, that these findings are not supported because the special exception and conditional use provisions of the zoning ordinance require that the proposed special exception or conditional use conform to the comprehensive plan. They argue that, since the township’s comprehensive plan designates the AG district for open space and recreational use, that no special exception or conditional use would be granted. This argument is, however, legally untenable.

In Schatz v. New Britain Township Zoning Hearing Board, 141 Pa. Commw. 525, 596 A.2d 294 (1991), the owner of property in an institutional district sought a special exception for an inpatient drug and alcohol treatment facility which fit the definition of a licensed nursing or convalescent home. The township asserted that the special exception could not be granted because the proposed use did not comply with the comprehensive plan that designated the property as residential. The Commonwealth Court held that, notwithstanding the specific ordinance requirement that the special exception use comply with the comprehensive plan, that plan could not undermine or prohibit the grant of a use specifically authorized by special exception in the district. In Levin v. Board of Supervisors of Benner Township, 669 A.2d 1063 (Pa. Commw. 1995), aff’d without opinion, 547 Pa. 161, 689 A.2d 224 (1997), the court held that a use permitted by the ordinance as a conditional use is legislatively determined to be compatible with the district. Levin, 669 A.2d at 1072.

In support of its challenge, Realen emphasizes the commercial and residential nature of the properties surrounding the land in question. As the board found, other than the adjoining Glenhardie Condominiums which occupy approximately 81.45 acres lying outside of Upper Merion in Tredyffrin Township, Chester County, the parcels surrounding the premises in question are considerably smaller, ranging from .661 acres to 12.2 acres. There simply is no authority for the proposition that adjacent properties lying within different zoning districts should be made to conform through a rezoning of the areas affected. As the Supreme Court recognized in Tidewater Oil Company v. Poore, 395 Pa. 89, 94, 149 A.2d 636, 638 (1959):

“To accept the [lower] court’s reasoning would be to say that no municipality has the power to limit an encroaching imperilment. It would be to say that land contiguous to an industrial district, though zoned residential, must now also become industrial because of contiguity alone, and that, through a process of chain reaction, all residential land must eventually become industrial land.” See also, Township of Falls Appeal, 75 Pa. Commw. 528, 462 A.2d 920 (1983), and Guentter v. Borough of Lansdale, 21 Pa. Commw. 287, 345 A.2d 306 (1975).

Spot zoning is the singling out of one lot or a single area for treatment different from that accorded to similar surrounding land, otherwise indistinguishable from it in character, for the economic benefit of the owner of that land or to his economic detriment. Sharp v. Zoning Hear ing Board of Radnor Township, 157 Pa. Commw. 50, 60, 628 A.2d 1223, 1228 (1993), allocatur denied, 536 Pa. 629, 637 A.2d 290 (1993), and cases cited. A zoning ordinance is presumed valid and constitutional, and the challenging party has the heavy burden of proving otherwise. If the validity of the ordinance is debatable, the legislative judgment is allowed to control. Sharp at 60, 628 A.2d at 1227-28.

The size of the property is one factor to be considered in determining whether there has been spot zoning. Others are the topography, location and characteristics of the land. However, the most important factor is whether the rezoned land is being treated unjustifiably different from similar surrounding land, thereby creating an island having no relevant difference from its neighboring properties. Sharp at 61, 628 A.2d at 1228.

This court has considered the cases cited by Realen holding that large parcels of land were unlawfully spot zoned; Baker v. Chartiers Township Zoning Hearing Board, 677 A.2d 1274 (Pa. Commw. 1996), allocatur denied, 547 Pa. 738, 690 A.2d 238 (1997); Pace Resources Inc. v. Shrewsbury Township Planning Commission, 89 Pa. Commw. 468, 492 A.2d 818 (1985); Bench Appeal, 28 Pa. Commw. 415, 368 A.2d 828 (1977). However, all those cases hold that the basis of whether property has been the subject of unlawful spot zoning (or special legislation, or arbitrary and capricious zoning), is whether zoning is reasonable in light of all the circumstances.

The Upper Merion Township zoning hearing board’s conclusion to that effect is supported by substantial evidence, and is neither contrary to law nor an abuse of discretion. The large size of this property makes it suitable for many of the uses authorized in the AG-agricultural district, including those which the board found to be viable. In contrast, the substantially smaller size of the surrounding properties in the township make them unsuitable for those uses. Realen’s property, which comprises most of the district, is the fifth largest tract of land in the township, and is substantially larger than several of the municipality’s other zoning districts. The subject tract is completely surrounded, and not bisected, by roads. Although its topography is man-made, it is different from that of the surrounding properties. No case holds that topography must date to the last ice age to be a relevant zoning consideration.

Although the AG-agricultural district is considerably smaller due to rezoning than it was when created, such a rezoning does not make the Realen property the object of unlawful spot zoning. In Springfield Township Appeal, 81 Pa. Commw. 513, 474 A.2d 706 (1984), the owner of a 9.72 acre parcel asserted that his individual property, as well as the entire 60-acre S-U special use district within which his premises was located constituted unlawful spot zoning. The landowner’s property was one of the few undeveloped parcels in the S-U district, and the zoning hearing board found, based on substantial evidence, that the ordinance in question was not confiscatory since it did not deprive him of a reasonable use of his property. In upholding the validity of the S-U district, the court noted its large size, and that the areas surrounding it were zoned both commercial and residential.

The AG-agricultural zoning of Realen’s tract is valid and rational, since it permits a variety of uses which the subject premises should be utilized for, other than its present use as a golf course. The fact that Realen’s proposed development of the tract in question is not permitted, does not invalidate the zoning which is applicable to the premises merely because the owner might be otherwise deprived of the most lucrative and profitable use of his ground. Kirk v. Zoning Hearing Board of Honey Brook Township, 713 A.2d 1226, 1231 (Pa. Commw. 1998), allocatur denied, 558 Pa. 624, 737 A.2d 745 (1999); Guentter v. Lansdale Borough, 21 Pa. Commw. 287, 293, 345 A.2d 306, 310 (1975).

Realen asserts that the court, in its review of the record, ignored the statement of the chairman of the township supervisors that the AG district has been used by the township, and continues to be used to prevent the development of this property. It also argues that the AG zoning was merely a holding zone based upon statements contained within the planner’s report supporting the creation of the AG district. Whatever the intent may have been, it is irrelevant because the ordinance creating the AG district is clear, and authorizes significant development which is, in fact, appropriate for the property in question.

The relevant principle of statutory construction, as it pertains to applicant’s argument, as set forth at 1 Pa.C.S. §1921, is that the letter of the statute is to be followed when it is clear, and that its intent is to be considered only when the words are not explicit. In Allegheny County Institution District v. Department of Public Welfare, 668 A.2d 252, 257 n.13 (Pa. Commw. 1995), allocatur denied, 547 Pa. 757, 692 A.2d 567 (1997), the Commonwealth Court held that the testimony of a legislator about the purpose of a statute was properly excluded when the statute was clear. Even if the testimony were relevant, it would not be binding because it would remain the opinion of but one of the legislators.

Even if the township’s intent and purpose is as Realen asserts, it has not implemented that intent in its ordinance, particularly since the AG district does not require that the premises remain a golf course or other open space.

Finally, Realen asserts in its concise statement that this court erred in determining that its claims are barred by principles of res judicata or collateral estoppel. Although the board found those principles applicable, it, nevertheless, ruled on the merits of Realen’s challenge. This court does not affirm the board on the issue of preclusion, recognizing that res judicata and collateral estoppel are to be applied sparingly in zoning matters. Schubach v. Silver, 461 Pa. 366, 376, 336 A.2d 328, 333 (1975). We further note that the board’s decision and the township’s brief cite no case that holds that the necessary identity of parties or privity exists when the party to be precluded is not in privity with the. original or prior litigants. While proximity in time and exact identity of the application might result in a finding of privity in an appropriate case, this is not that case, and there is no necessity for us to extend issue preclusion doctrines to uphold the denial of Realen’s challenge.

For the foregoing reasons, this court’s order of December 1, 2000, upholding the decision of the zoning hearing board of Upper Merion Township, which denied Realen Valley Forge Greenes Associates’ challenge to the validity of the Upper Merion Township zoning ordinance, pursuant to sections 909.1 and 916.1(a) of the Pennsylvania Municipalities Planning Code, should be affirmed.

      . Mr. Rahenkamp, who had been retained by the township to analyze its agricultural regulations in 1984 and in connection with the present application, was called by Realen as a witness in its case. He was also presented as an expert on behalf of the township. (N.T. at 545, 679-81.)

      . Mr. Rahenkamp expressed the opinion that Realen was reading this letter out of context, and that the AG zoning should not be characterised as a holding zone because there were and are a variety of uses to which this property could be put, even though the property was not developed as anything other than a golf course. (N.T. 869-71.)

      . Realen’s witness, Charles L. Guttenplan, agreed that the zoning ordinance is the regulatory document that controls over the comprehensive plan, which contains goals and objectives, and further agreed that the municipalities planning code provides that if the zoning ordinance and comprehensive plan are inconsistent, the zoning ordinance prevails. (N.T. 224-25.) Realen’s counsel stipulated that there have been zoning approvals and zoning changes inconsistent with the township’s comprehensive plan. (N.T. 240.)

      . Mr. Rahenkamp also concluded in 1984 that the existing golf course is a desirable use for the property which balances the preservation of open space while providing reasonable income to the landowner. (N.T. 563.) He also advised the township that it was in the public interest to allow some clustered office and hotel use on the premises, while preserving the golf course. (N.T. 566-67, 571.) By 1998, he had concluded that office space was no longer an appropriate use because of its contribution to traffic during peak hours, and that the golf course should be combined with uses that concentrate in the off-peak hours, such as a hotel, restaurant or expanded clubhouse. (N.T. 571-72.) He never suggested compromising the golf course. (N.T. 574.)

      . There was no evidence presented that the present golf course use is unprofitable, just that the land is worth less as a golf course than it would be if developed as Realen desires. The parties stipulated that the existing golf course is a feasible use. (N.T. at 692-93.)


source: Caselaw Access Project

author: SAYLOR, J.,

license: Public Domain

text:
    Batman v. Sedlovsky

      C.P. of Northumberland County,
    no. CV-98-1732.

      Thomas Waffenschmidt, for plaintiff.

      Steven D. Snyder, defendant Sunbury Community Hospital.

      Michael M. Badowski, for defendant Sedlovsky.

      C. Edward S. Mitchell, for defendants French and Evangelical Radiological Assoc.

      Daniel L. Grill, for defendant Radiological Associates Inc.

      David R. Bahl, for defendant Evangelical Community Hospital.
    June 25, 2002
   SAYLOR, J.,

In this medical malpractice action, plaintiff has asserted claims against Sunbury Community Hospital, upon the basis of both corporate negligence and vicarious liability. The hospital has filed a motion for partial summary judgment challenging the ability of the plaintiff to go forward under the corporate negligence doctrine. After review of the evidence proffered by the plaintiff as to such a claim, the court finds that it is insufficient to establish a prima facie case of corporate liability against the hospital as recognized in Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991). Accordingly, partial summary judgment will be afforded the hospital as to such a claim.

The uncontroverted facts set forth in the pleadings and also established by discovery reveal that the plaintiff’s decedent, a three and a half-week-old baby at the time, was taken by his mother to the hospital emergency room at 12:30 a.m. on December 19,1996. She was concerned about his excessive vomiting and temperature. He was diagnosed as having a viral infection, and he was discharged with instructions to see his pediatrician. A chest x-ray was obtained, which was reviewed and interpreted by defendant, Michael Sedlovsky M.D., who made a report stating that this baby’s cardiac silhouette appeared normal in size and configuration. Dr. Sedlovsky is a licensed radiologist, but he was neither a specialist in pediatric radiology nor board certified in the general field of radiology. The interpretation of this x-ray is challenged by plaintiff’s experts, who state that this x-ray actually showed that the heart was not normal in size and configuration, but at the very least borderline enlarged, which then should have resulted in Dr. Sedlovsky making a referral for a cardiac echocardiography. Such a referral was not made by Dr. Sedlovsky.

The baby was subsequently examined on January 16, 1997, in the emergency department of Evangelical Community Hospital, and on the next day, additional x-rays were taken by a different radiologist who interpreted them as being unremarkable. Likewise, on this occasion, the baby was discharged from Evangelical Community Hospital without a referral for cardiac echocardiography. The baby was subsequently seen by a pediatrician on January 30,1997, for his two-month checkup. Unfortunately, on February 24,1997, the baby was found unresponsive in his crib by his mother, and when the EMT’s and advanced life support arrived at the home, the baby was found to be in cardiac arrest. He was pronounced dead approximately 40 minutes after his arrival at the hospital.

Thereafter, an autopsy revealed that the baby had suffered from complex heart disease and multiple defects which could have been discovered through a cardiac echocardiograph. Since his heart condition was never discovered, he never received any appropriate treatment for the heart problem.

In her amended complaint, plaintiff avers that the hospital is liable because it did not employ physicians or other health care providers who were competent and properly trained; by failing to have a “pediatric cardiologist” on staff; and, by failing to establish protocols for interpretation of pediatric x-rays and requiring the referral thereof.

In essence, plaintiff is attempting to assert a claim against the hospital under the corporate negligence doctrine as announced in Thompson, supra, that set forth the following areas of duties that a hospital owed to its patients: “(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment ...; (2) a duty to select and retain only competent physicians . . . ; (3) a duty to oversee all persons who practice medicine within its walls as to patient care...; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients ...” Id. at 339-40, 591 A.2d at 707. (citations omitted)

As to these areas of exposure for direct liability on the part of a hospital, the Supreme Court conditioned a recovery upon the showing of a breach of one of the foregoing duties, and “forseeability” on the part of the hospital:

“It is important to note that for a hospital to be charged with negligence, it is necessary to show that the hospital had actual or constructive knowledge of the defect or procedures which created the harm.” Id. at 341,591 A.2d at 708.

Finally, the plaintiff must also establish that the hospital’s negligence was a substantial factor in causing the harm to the injured party. Id.; Walls v. Hazleton State General Hospital, 157 Pa. Commw. 170, 629 A.2d 232 (1993). As summarized in Whittington v. Episcopal Hospital, 768 A.2d 1144, 1149 (Pa. Super. 2001):

“In order to present a prima facie case of corporate negligence, [plaintiff was] required to introduce evidence of the following: (1) [hospital] acted in deviation from the standard of care; (2) [hospital] had actual or constructive notice of the defects or procedures which created the harm; and (3) that the conduct was a substantial factor in bringing about the harm.”

As to the first and third elements necessary to support a claim under the corporate negligence doctrine against the hospital, that is, breach of one of the duties and the causal connection thereof in relation to the patient’s harm, it has also been established that expert testimony is necessary in all but obvious cases. Welsh v. Bulger, 548 Pa. 504, 514, 698 A.2d 581, 585 (1997); Walls v. Hazleton State General Hospital, supra.

In the case at bar, plaintiff points to the following two excerpts from the reports of her experts as providing the needed testimony that the hospital violated the duties outlined above in Thompson:

(1) the report of Charles S. Kleinman M.D., a pediatric cardiologist at the University of Florida College of Medicine, wherein he stated:

“I find myself wondering about the credentialing system at Sunbury Community Hospital. To allow a radiologist who has failed his board examination five times to continue to assume responsibility for the interpretation of x-rays in an emergency room caring for infants is of great concern. While it is not unusual for a physician fresh out of training to be allowed to practice while they are board-eligible, for hospital privileges to be maintained in the face of multiple failed attempts at board certification is not something I am personally familiar with. For Dr. Sedlovsky to have allowed his membership in RSNA and other radiologic societies to lapse while he is contemplating retirement, but still practicing radiology, speaks poorly for the hospital’s ongoing credentialing process. I believe, therefore, that Sunbury Community must bear some corporate responsibility in this matter.”

(2) the report of Janet L. Strife M.D., radiologist in chief at Children’s Hospital and Medical Center in Cincinnati, Ohio, which states as follows:

“The fact that he took his exams five times and did not pass indicates that he is not very knowledgeable or well-trained. I am a board examiner and know that anyone that failed them this often certainly is not well-trained.”

This is the extent of any reference in either report to the corporate negligence claim, which plaintiff argues is also bolstered by admissions of Dr. Sedlovsky that he was originally trained in the Ukraine as a urologist, prior to his immigration to the United States in 1976; his decision to practice radiology instead of urology, because of the long training required in both general surgery and urology; his failure to pass the exam required of foreign medical physicians in order to go into residency in the United States three or four times before he finally passed it; and his stated reason for failing the board certification exam five times because “it is kind of difficult to keep all that information in your head.” There is also the fact that he is not a specialist in pediatric radiology. Dr. Sedlovsky also stated that he never took any specific courses or seminars in pediatric radiology.

Yet it is also clear that Dr. Sedlovsky was licensed to practice medicine in the Commonwealth of Massachusetts in 1984; the State of New York in 1985; and, in Pennsylvania in 1986. He has never had his medical license suspended, revoked or terminated, in any state. He received his training in radiology at Bridgeport Hospital, in Connecticut from 1980 through 1984, where he completed his residency, which also included training in pediatric radiology. He estimated that over the past five years he had interpreted approximately 40 chest x-rays a year for children under the age of one year. There is no evidence that he has ever been previously sued for medical malpractice, or that he was ever reported for professional misconduct to the state licensing board pursuant to 35 P.S. §448.806(a).

In considering a motion for summary judgment, this court is aware that the entry of summary judgment may be granted only in cases where the right is clear and free from doubt, and that the record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). When the plaintiff is the non-moving party, summary judgment for defendant is improper if the evidence, viewed favorably to the plaintiff, would support a recovery as pled. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001), appeal denied, 568 Pa. 634, 793 A.2d 909 (2002). Once a motion for summary judgment has been made and properly supported, a party seeking to avoid the imposition of summary judgment must show by specific facts by way of depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue for trial. Marks v. Tasman, supra. In other words, the mere allegations in the pleadings are not sufficient in themselves but must be supported by evidence in the record establishing the facts essential to the cause of action. Id.; Pa.R.C.P. 1035.3.

In the case at bar, plaintiff contends that the hospital breached its duty to provide a competent staff, either because (1) the radiologist who reviewed the baby’s x-ray did so improperly, in his reading of it or failing to refer it for a consult, or (2) by virtue of the fact there was not a “pediatric cardiologist” employed by the hospital. It is also argued that no policy was in place to provide guidelines for referral by the radiologist for a consult in this type of situation.

As to the competency of the radiologist here, this court finds that there has not been any evidence produced by plaintiff that meets the knowledge requirement under the Thompson standard; that is, an indication that the hospital knew or should have known that Dr. Sedlovsky was incompetent. A hospital is not directly liable just because a physician makes a mistake which allegedly constitutes malpractice. Edwards v. Brandywine Hospital, 438 Pa. Super. 673, 652 A.2d 1382 (1995). There is nothing in the record of any previous instance where Dr. Sedlovsky did not perform his duties in a proper and professionally competent manner. For example, in Corrigan v. Methodist Hospital, 869 F. Supp. 1208 (E.D. Pa. 1994), plaintiff withstood a motion for summary judgment because the subject physician had previous medical malpractice suits brought against him. See also, Raschel v. Rish, 488 N.Y.S.2d 923 (1985). Certainly, notice of a previous malpractice action would have triggered an inquiry, usually examined when he would come up for review for renewal of his medical staff privileges.

Thus, plaintiff cannot use this malpractice action or complaint, if proven, to then relate back to establish that the hospital should have had constructive notice that they had permitted staff privileges to an incompetent physician. See Crumley v. Memorial Hospital Inc., 509 F. Supp. 531 (E.D. Tenn. 1978), aff’d without opinion, 647 F.2d 164 (6th Cir. 1981). In other words, prior to this incident, there is nothing in the record that would have previously placed the hospital on notice to have made inquiry or conducted an investigation with regard to his continuing qualifications to provide competent service. Cf. Johnson v. Misericordia Community Hospital, 301 N.W.2d 156 (Wis. 1980). When the hospital itself incurs liability under the corporate negligence doctrine, it is typically of a systemic nature. Edwards v. Brandywine Hospital, supra. This may then establish the requisite constructive notice, i.e., it must have known but failed to act or its failure to be notified is caused by the complained of absence of supervision. Whittington v. Episcopal Hospital, 768 A.2d 1144 (Pa. Super. 2001). In the case at bar, plaintiff has failed to produce evidence of a systemic failure as the reason for the lack of knowledge, actual or constructive, as to the alleged incompetence of Dr. Sedlovsky.

The only knowledge of the plaintiff’s experts as to the competency of Dr. Sedlovsky was their opinion that he did not properly interpret the x-rays here, and his failure to successfully pass the examination for board certification. Although plaintiff has not presented the court with any information regarding board certification, it is well known that there are medical specialty boards that establish requirements for a physician to be recognized in a particular field as having some specialized expertise. In order to so qualify, it is necessary for such physician to complete additional training and pass certain examinations. There is usually a certain level of experience required so that there is a distinction between physicians who are board eligible and those who are board certified. Physicians who attain board certification are usually set apart from their peers as perhaps being more highly skilled and knowledgeable; however, it cannot be said that a physician who is not board certified lacks ordinary competence to discharge his duties. The level of care provided to a patient in any given instance may be equally and competently performed by a non-board certified physician.

Certainly, a hospital in a smaller size city, or any hospital for that matter, would not per se violate any duty to its patients by allowing staff privileges to non-board certified physicians. In Edwards, supra, the standard of care applicable to a hospital is that of a “reasonable hospital under similar circumstances.” Id., 438 Pa. Super, at 683, 652 A.2d at 1387. It cannot be expected that a community hospital in a small city would have only board certified physicians attend its patients, or engage a “pediatric radiologist.” Moreover, there has not been proffered any expert testimony relative to typical staffing arrangements of a reasonably competent hospital under similar circumstances.

This then brings us to plaintiff’s other argument that the hospital should have had in place a policy for referral to a pediatric radiologist in this type of a situation. A similar contention was made in Edwards, supra, that the hospital was deficient for adopting a rule allowing its physicians complete discretion in deciding when to consult an expert, which was answered by the court as follows: “But to make out a viable Thompson claim, [plaintiff] would have to prove that the hospital knew or should have known that his doctors were not seeking expert advice when they should have.” Id. at 685, 652 A.2d at 1387. Likewise, plaintiff has not produced any evidence of any knowledge on the part of the hospital that the radiologists acted or failed to act in requesting consults or referrals on other occasions on a negligent basis. The other difficulty this court has with the plaintiff’s argument in this regard is that the plaintiff has not provided any guidance by way of an expert report, or otherwise, as to the standard of care generally employed by hospitals in establishing a policy of referral, or if any similarly situated hospitals even have such policies. The determination as far as whether to request or obtain a consultation appears to be one within the medical judgment of the physician familiar with the patient. It would appear to be a very difficult task to set forth a policy to govern every possible situation in which a staff physician may or may not request a consult. No authority has been presented by plaintiff to support such a proposition. In any event, plaintiff has not produced any expert report in this regard. The procedures ordinarily employed by hospitals or physicians in determining when a consult should be obtained are certainly outside the realm of the ordinary experience of any lay person, and thus some guidance by way of expert testimony would be necessary in this regard.

In view of all of the foregoing, this court enters the following:

ORDER

And now, June 25, 2002, the motion for partial summary judgment is granted on behalf of the defendant, Sunbury Community Hospital, as plaintiff has not offered sufficient evidence to meet the requirements for a prima facie case of direct liability of such hospital under the corporate negligence doctrine.

      . As stated in Edwards, supra, acts of malpractice occur at the finest hospitals, and then the hospital is subject to liability under theories of respondeat superior or ostensible agency.

      . The plaintiff’s experts are specialists in pediatric cardiology at the University of Florida College of Medicine and Children’s Hospital Medical Center in Cincinnati, Ohio, and one could very well expect that such institutions are providing the highest level of medical care to their patients with their resources and population base for support, and thus it may be expected that one could be treated at any time by a specialist on staff in pediatric radiology. Although there are more limited resources in hospitals in small cities and more rural areas, a high level of routine care is provided by a staff that can be more personal to a patient, and is not concerned with the time consuming teaching aspect to students.


author: KIESER, J.,

text:
    McElwee v. Leber

      C.P. of Lycoming County,
    no. 00-01,795.
    C. Scott Waters and Clifford A. Rieders, for plaintiffs.

      Alan R. Krier, for defendants Leber, Edelman, EM Care and New Jersey/Pennsylvania EM-1 Medical Services.

      Robert A. Seiferth and David R. Bahl, for defendants Sinsabaugh, Koons, Kerschner, Muncy Valley Hospital, Susquehanna Health Sustems, Susquehanna Physician Services.

      C. Edward S. Mitchell, for defendants Shearer and Donald E. Shearer, M.D. PC.
    December 9, 2002
   KIESER, J.,

The motion before the court is defendants Susquehanna Health Systems, Muncy Valley Hospital, Susquehanna Physician Services, Sinsabaugh, Koons, and Kerschner’s motion to compel production of documents of plaintiffs filed October 11, 2002. This case is a medical malpractice claim against the above captioned defendants regarding the medical care of plaintiffs’ minor child, Jessica. On February 20, 2001, defendants Susquehanna Health Systems served a request for production of documents on plaintiffs. One of the requests stated:

“Kindly produce copies of any notes, memos, diaries, memorializations, statements, transcripts of recorded statements or interviews relating to, referring to, or in any way describing the allegations and events with respect to the subject matter upon which plaintiffs base this action, authored by Kevin and Jo Ann McElwee, or anyone acting on their behalf and/or any person involved and/or related in any way to the incidents which are the subject matter of this lawsuit, excluding materials protected by Rule 4003.3 only.” Defendants’ motion, ¶2.

Plaintiffs’ initial response was that they were not “aware or in possession of the requested information.” However, it was later determined that the plaintiffs were in possession of such documents, but the documents were not being disclosed because they were protected by the attorney-client privilege. The plaintiffs did disclose to the defendants a handwritten document that Jo Ann McElwee prepared on her own. Plaintiffs’ answer to defendants’ motion, ¶6.

Defendants’ motion specifically asks for “a copy of the typewritten factual summary prepared by plaintiff Jo Ann McElwee and relied upon by her in preparation for her deposition testimony” to be turned over to them. See defendants’ motion, ¶21. But through briefs and argument, it is clear that the defendants are requesting other documents as well. The other documents at issue are: (1) two letters prepared by Jo Ann McElwee dated August 16, 2001, and (2) two diaries/journals prepared by Jo Ann McElwee. Plaintiffs’ answer to defendants’ motion, ¶12.

The defendants contend that the documents are not covered by the attorney-client privilege. The attorney-client privilege covers disclosures necessary to obtain legal advice. Defendants’ brief, 3. The attorney-client privilege does not apply to facts, but only to legal theories or defenses. The documents requested contain only facts and not the legal opinions of counsel; therefore no privilege applies to the documents. Thus, according to defendants, a summary of facts is discoverable even if prepared at the request of counsel.

Also, an adverse party is entitled to documents used to refresh the recollection of a witness under Pa.R.E. §612. The defendants contend that it would be in the interests of justice to require the plaintiffs to disclose the documents used by Jo Ann McElwee to refresh her recollection prior to testifying at the deposition. The documents were prepared close in time to the events at issue and would be a reasonably accurate source of information. Defendants’ brief, 5. The defense is entitled to know if the deposition testimony and the facts in the summary are consistent. Also, the use of the summary to refresh Jo Ann McElwee’s recollection is a waiver of the attorney-client privilege as to that summary. Ibid.

In contrast, the plaintiffs contend that the documents are covered by the attorney-client privilege and need not be disclosed. The purpose of the attorney-client privilege is to foster candid communication so that an attorney can provide legal advice based on the most complete information. Plaintiffs’ brief, 7. While the attorney-client privilege does not cover facts, the content of a communication between an attorney and a client cannot be disclosed. Id. at 8. The documents at issue were prepared at the request of counsel for the sole purpose of this litigation. Id. at 13. The purpose of the documents is to assist counsel in providing legal advice based on the most complete evidence. Id. at 13.

The plaintiffs also contend that the use of some of the typed summary to refresh Jo Ann McElwee’s recollection prior to her deposition testimony does not require that the typed summary be automatically disclosed to the defense. Plaintiff’s brief, 14. To obtain such documents a party must show that (1) the witness used the writing to refresh his memory; (2) the witness used the writing for the purpose of testifying; and (3) that production is necessary in the interests of justice. Id. at 14 (citing Pa.R.E. 612 and Sporck v. Reil, 759 F.2d 312 (3d Cir. 1985)). Jo Ann McElwee only used the typed document to refresh her memory as to what Jessica did the night before she was seen by one of the defendants. Id. at 17. This document did not influence Jo Ann McElwee’s testimony “on any issue of material relevance in this litigation.” Plaintiffs’ brief, 15. Plaintiffs argue that the interests of justice would not be served by allowing the defense to go on a fishing trip through confidential communication when the use of the document was limited to refreshing Jo Ann McElwee’s recollection on a “factually undisputed matter.” Id. at 19.

Thus, there are two issues before the court. First, whether the documents are covered by the attorney-client privilege when prepared by the plaintiff, at the attorney’s request, during a medical malpractice suit. Second, whether the use of the typed summary to refresh the witness’ recollection before deposition testimony requires that the document be disclosed, despite the fact that it is privileged. The court believes that the documents at issue are covered by the attorney-client privilege. The court also believes that the use of the typed summary to refresh Jo Ann McElwee’s recollection before her deposition testimony does not require that it be disclosed to the defendants.

Generally, “a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.” Pa.R.C.P. 4003.1(a). Discovery will not be permitted if it goes beyond the scope of discovery “as set forth in Rules 4003.1 through 4003.5.” Pa.RC.P. 4011(c). Material subject to the attorney-client privilege is not discoverable as being beyond the scope of discovery. Joe v. Prison Health Services Inc., 782 A.2d 24 (Pa. Commw. 2001); Brennan v. Brennan, 422 A.2d 510 (1980).

Pennsylvania has codified the attorney-client privilege. “In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.” 42 Pa.C.S. §5928. The attorney-client privilege applies only to “confidential communications made in connection with providing legal services.” Prison Health Services, 782 A.2d at 31. The attorney-client privilege applies to those confidential communications that relate to “a fact of which the attorney was informed for the purpose of securing either a legal opinion, legal services or assistance in some legal proceeding.” Brennan, 422 A.2d at 515. The party seeking the protection of the attorney-client privilege has the burden of proving “that it is properly invoked and the party seeking to overcome the privilege has the burden to prove an applicable exception to the privilege.” Prison Health Services, 782 A.2d at 31.

The attorney-client privilege “is not concerned with prejudice, the better ascertainment of the truth, or the reliability of attorney-client communications.” Estate of Kofsky, 487 Pa. 473, 482, 409 A.2d 1358, 1362 (1979). The purpose of the attorney-client privilege is to “foster candid communications between legal counsel and the client so that counsel can provide legal advice based upon the most complete information possible.” Prison Health Service, 782 A.2d at 31. Without this privilege, the client may be “reluctant to fully disclose all the facts necessary to obtain informed legal advice if these facts may later be exposed to public scrutiny.” Ibid. A client discloses information to an attorney in reliance on that attorney’s “honor and fidelity.” Brennan, 422 A.2d at 514 (quoting Slater v. Rimer Inc., 338 A.2d 584, 589 (1975)). “To permit the attorney to reveal to others what is so disclosed, would be not only a gross violation of a sacred trust upon his part, but it would utterly destroy and prevent the usefulness and benefits to be derived from professional assistance.” Ibid.

The term communication includes written communications by the client to the attorney. Prison Health Services, 782 A.2d at 31; Benton v. Mechanicsburg Sub-Acute Rehab Associates, 23 D.&C.4th 559 (Cumberland Cty. 1993). In Joe v. Prison Health Services, the plaintiff filed a motion to compel documents relating to the health care of inmates and evaluations of health care providers for the prison system. 782 A.2d at 29. The defendants asserted that the documents were protected by the attorney-client privilege, the Pennsylvania Medical Peer Review Act, and the doctrines of self-critical analysis and deliberative process. Id. at 29-30. The trial court granted the motion to compel and ordered disclosure. Id. at 29.

The Superior Court affirmed. The Superior Court noted that the defendants failed to meet their burden of proving that the attorney-client privilege covered the documents. Prison Health Services, 782 A.2d at 32. “Defendants failed to establish, however, that any of the documents, for which they claim attorney-client privilege, were confidential communications, provided to City attorneys, for the purpose of obtaining legal advice.” Ibid.

In Folmer v. First Union Nat’l Bank, no. 00-00,690 at 2 (Lycoming Cty. July 24,2001), this court held that the redacted portions of a consolidated default log were not subject to the attorney-client privilege. This court stated that:

“The court fails to see how any of this relates to the attorney work product privilege or the attorney-client privilege. There are no opinions expressed by counsel or any other comment about the merits of the claim nor is there anything that could be regarded as confidential information being given to the attorney.” Ibid.

There was no attorney-client privilege regarding the log because the document was not prepared to obtain legal advice. The log was not a communication between an attorney and client for the purpose of obtaining legal assistance. The log was kept in the regular course of the bank’s business and would have been prepared even if there was a claim requiring the attorney to be involved.

In Benton v. Mechanicsburg Sub-Acute Rehab Associates, the plaintiff prepared a report of the incident at issue in the case. 23 D.&C.4th at 561. The court of common pleas held that statement was protected by the attorney-client privilege. The statement regarding the incident was “a communication made solely for the purpose of procuring assistance of counsel.” Id. at 563. Plaintiff provided the information to her attorney to assist him in providing the client his professional services and proceeding with her claim.

The typed factual summary, the two letters prepared by Jo Ann McElwee dated August 16, 2001, and the two diaries/joumals prepared by Jo Ann McElwee are protected by the attorney-client privilege and beyond the scope of discovery. All of these documents were prepared at the behest of plaintiffs’ counsel. Like Benton, the documents were prepared to provide counsel with the needed information to proceed with the plaintiffs’ legal claims. Unlike Prison Health Services and Folmer, the sole purpose of creating the documents was to assist counsel in providing the plaintiffs with legal advice in regard to their medical malpractice claim. These documents would not have been generated absent the need for them by counsel to assist the plaintiffs.

The fact that the documents at issue are summaries of facts does not deprive them of the attorney-client privilege. The attorney-client privilege “ ‘only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.’ ” National Railroad Passenger Corp. v. Fowler, 788 A.2d 1053, 1064 (Pa. Commw. 2001) (quoting Upjohn Co. v. U.S., 449 U.S. 383, 395 (1981)). Notwithstanding, “[a] fact is one thing and a communication concerning the fact is an entirely different thing.” Ibid. For instance, a “client cannot be compelled to answer the question, ‘what did you say or write to the attorney?’ but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.” Ibid.

In Gould v. City of Aliquippa, the Commonwealth Court held that the trial court erred in requiring an attorney to prepare and produce summaries of the facts learned from the attorney’s interviews with clients. 750 A.2d 934, 938 (Pa. Commw. 2000). The attorney represented the city in a suit regarding a motor vehicle accident where it was alleged that a road owned by the city was either negligently designed or maintained and allowed the other defendant to enter the roadway in the wrong direction. Ibid. The attorney interviewed the city’s chief of police, the city administrator, the street superintendent, and a city police officer. Id. at 937. The court indicated that the attorney-client privilege applied to them if they had authority to speak for the city and their titles suggested that they possessed such authority. Ibid.

The plaintiffs filed a request for. production of documents including “a request for summaries of any oral statement taken from any witness relating to the accident.” Id. at 936. Plaintiff filed a motion to compel and the trial court ordered the city to provide the facts “secured from all witnesses.” Ibid. On appeal, the plaintiffs argued that “the interviews were purely investigative in nature rather than for the purpose of obtaining legal advice.” Id. at 937. The plaintiffs cited to United States Fidelity & Guaranty Co. v. Barron Industries Inc., 809 F. Supp. 355, 364 (M.D. Pa. 1992), “for the proposition that the attorney-client privilege ‘does not attach to discussions of the facts, no matter how extensive or involved the discussion may become.’ ” Id. at 938. The Commonwealth Court distinguished United States Fidelity & Guaranty Co., in that the communication at issue there was written by the attorney when he was not acting as the company’s attorney.

In the case before the Commonwealth Court, the summary of facts was impermissible as being protected by the attorney-client privilege. While the information gained from the interviews was a recounting of what happened during the accident {i.e., the facts), the interviews were conducted while the attorney was acting as the city’s attorney. Id. at 938. The interviews were communications between an attorney and client “conducted in preparation for [the] litigation.” Ibid. In other words, the interviews and subsequent facts were disclosed to the attorney in order to obtain legal assistance so that the attorney could defend the lawsuit against the city.

The case sub judice is similar to Gould. While the documents in question may be just summaries of the facts concerning Jessica McElwee’s medical care, those facts were communicated in a manner that shields them from discovery. The facts themselves are not shielded, but the documents that contain those facts are. Those documents were communications between an attorney and client for the purpose of prosecuting the medical malpractice claim. This is the crucial fact. As National Railroad Passenger Corp. stated, “[a] fact is one thing and a communication concerning the fact is an entirely different thing.” 788 A.2d at 1064. While the facts surrounding Jessica McElwee’s medical care, in and of themselves, are discoverable, the communications between her parents and their attorneys disclosing those facts are not.

Having held that the documents are covered by the attorney-client privilege, the court must now address whether, despite this, the typed summary must be disclosed since it was used to refresh Jo Ann McElwee’s recollection before testifying at her deposition. “[A] writing or [any] other object may be used by a witness to refresh or revive his or her present recollection of past events.” Commonwealth v. Proctor, 385 A.2d 383, 385 (Pa. 1978). If a witness does use a writing or other item to refresh his memory, while during or before testifying, then “an adverse party is entitled to have the writing or other item produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness on it and to introduce in evidence those portions that relate to the testimony of the witness.” Pa.R.E. 612(a). If the document is used to refresh the recollection of the witness before the witness testifies, then it is within the discretion of the court to determine whether it is “necessary in the interests of justice” that the document be disclosed to the adverse party. Pa.R.E. 612(a).

The reason for disclosing the refreshing document for inspection is to protect against the “risk of imposition and false aids.” Wigmore on Evidence §762,136 (1970). The requirement of disclosure and inspection is to ensure that the refreshing document does just that and not provide a memory or recollection that did not previously exist absent being shown the document. Ibid. Disclosure and inspection of the document allows the adverse party an opportunity to establish discrepancies between the document and the testimony. McCormick on Evidence §9, 32 (4th ed. 1992). The disclosure and inspection of the refreshing document allows the adverse party an opportunity to “expose all that detract from the weight of testimony” given by the witness who used to document to refresh her recollection. Wigmore on Evidence, supra.

However, a party does not possess, “absolute right to have [refreshing documents] produced and to inspect them” when the documents were used to refresh the recollection of the witness before testifying. Commonwealth v. Samuels, 235 Pa. Super. 192, 198, 340 A.2d 880, 883 (1975); Commonwealth v. Fromal, 202 Pa. Super. 45, 195 A.2d 174 (1963). If the document is used to refresh recollection before testifying, it is within the court’s discretion to decide whether the document should be turned over for inspection. Pa.R.E. 612(A). The interests of justice guide that discretion. Pa.R.E. 612(A).

In Commonwealth v. Samuels, the defendant was arrested for violating the Controlled Substances, Drug, Device, and Cosmetic Act. 340 A.2d at 882. The day before the suppression hearing, a state policeman reviewed some notes to refresh his memory. Ibid. The state police officer “did not refer to them while on the witness stand,” but only used the notes before testifying. Id. at 883. (emphasis in original) The discretion of the trial court controls whether disclosure should have been required, and absent a clear abuse of discretion the Superior Court will not reverse that decision. Ibid. The Superior Court found no clear abuse of discretion and held that the notes used to refresh the witness’ recollection before testifying were not required to be turned over. Ibid.

In Tirado v. Lehigh Valley Hospital, plaintiffs brought a medical malpractice claim arising out of the delivery of their child. 49 D.&C.4th 110, 111 (Lehigh Cty. 2000). One of the doctors involved in the delivery was asked within a week of the incident to make a report of the delivery. She prepared a seven-page report regarding the delivery for peer review purposes. Id. at 112. During the deposition, the doctor was asked if she made any notes or record of what happened. The doctor responded yes and the plaintiffs asked for a copy. Id. at 117. Defense counsel refused the request except for disclosing the first page and portions of the second claiming the document was privileged under peer review. The court of common pleas ruled that the report was not privileged as peer review material and could be discovered. Ibid.

The court of common pleas also held that, although not used during the deposition, the doctor used the report in preparation for the deposition. It was not used at the deposition though. Because it was used in preparation, “fairness dictates that opposing counsel be provided with a copy of it.” Id. at 117. In reaching that conclusion, the court of common pleas cited to Commonwealth v. Proctor, stating, “it is clearly settled that once a witness has resorted to a writing or other object to refresh recollection, the adverse party is entitled to inspect the writing and to have it available for reference in cross-examining the witness.” Id. at 118 (quoting Proctor, 385 A.2d at 385).

The interests of justice do not require the typed summary used by Jo Ann McElwee to refresh her recollection prior to her deposition testimony to be disclosed to the defendants. This case is distinguishable from Tirado since the document at issue here is privileged. In the case sub judice, this court must try and resolve the apparent conflict between giving accord to the protection of the attorney-client privilege regarding the document and the purpose behind the disclosure and inspection requirement of Pa.R.E. 612(a). The question becomes whether the importance of disclosing the document “is sufficient to overrule the privilege given all the circumstances.” McCormick on Evidence §93, 346 (4th ed. 1992).

The importance of the typed summary is not sufficient to overrule the attorney-client privilege protecting it. The purpose behind the disclosure and inspection requirement can still be achieved without disclosing the privileged communication. The Rules of Civil Procedure and Rules of Evidence provide the defendants with ample methods to obtain the relevant facts and information regarding this case and introduce them into evidence so that the weight of Jo Ann McElwee’s testimony can be determined. While not absolute, the attorney-client privilege plays an important role in the American legal system and must be given the respect it deserves. This court will not infringe upon the attorney-client privilege to further the purposes behind the disclosure and inspection requirement when other avenues are open to achieve this purpose.

ORDER

It is hereby ordered that defendants Susquehanna Health Systems, Muncy Valley Hospital, Susquehanna Physician Services, Sinsabaugh, Koons, and Kerschner’s motion to compel production of documents of plaintiffs filed October 11, 2002, is denied.