author: CHESLOCK, J,

text:
    Abramowitz v. Pipher

      CP. of Monroe County,
    no. 2963 Civil 2006.

      Michael A. Lombardo III, for plaintiff.

      Joseph F. McNulty Jr. for defendant Pipher.

      Brett J. Riegel, for defendant Calidad Auto Tech Products Inc.
    August 22, 2006
   CHESLOCK, J,

This matter is before the court on defendants’, Russ Pipher, individually and as administrator of the estate of Marie Ann Pipher, Calidad Auto Tech Products Inc., a/k/a C.A.T. Products, a/k/a Run-Rite, preliminary objections to plaintiff’s, Leslie Abramowitz, administrator of the estate of Susan Abramowitz, complaint. The plaintiff initiated this action by complaint filed May 3,2006. The complaint is a personal injury action in which the plaintiff alleges that as a result of the defendants’ negligence, the plaintiff’s decedent was caused to suffer injuries and die. The accident stems from a motor vehicle accident which occurred on or about November 17, 2005, in which a vehicle driven by the defendant, Marie Ann Pipher, (Pipher) was involved in a head-on collision with a vehicle driven by plaintiff’s decedent, Susan Abramowitz, (decedent). On May 23,2006, the defendants filed preliminary objections, a brief in support of their preliminary objections and a praecipe for argument. This matter was listed for argument before the court for July 3, 2006. However a continuance of the matter was granted until the argument court set for August 7, 2006. The parties have filed briefs in support of their respective positions and we are now prepared to dispose of this matter.

The Pennsylvania Rules of Civil Procedure provide as follows:

“(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:

“(2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;

“(3) insufficient specificity in a pleading;

“(4) legal insufficiency of a pleading (demurrer);

“(b) All preliminary objections shall be raised at one time. They shall state specifically the grounds relied upon and may not be inconsistent. Two or more preliminary objections may be raised in one pleading.” Pa.R.C.P. 1028(a)(2), (3), (4)(b).

In their preliminary objections, the defendants have first filed a motion to strike off the words “recklessness,” “conscious disregard,” “conscious indifference,” “outrageousness” and “wanton” behavior contained in the complaint. Defendants’ motion to strike is in essence a demurrer. Defendants argue that the words used in the complaint fail to support a claim of recklessness or wanton misconduct against them. When considering preliminary objections in the nature of a demurrer, this court must accept as true all well pleaded material facts in the complaint, as well as inferences reasonably deducible therefrom. Webb Manufacturing Company v. Sinoff 449 Pa. Super. 534, 674 A.2d 723 (1996). We need not accept as true conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion. Penn Title Insurance Company v. Deshler, 661 A.2d 481 (Pa. Commw. 1995). A demurrer may be sustained only if it is clear on the face of the pleading that the law will not provide or permit the recovery sought. Morgan v. McPhail, 449 Pa. Super. 71, 672 A.2d 1359 (1996). If there is any doubt, it should be resolved by overruling the demurrer. Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994).

Instantly, the defendants contend that the use of the words “recklessness,” “conscious disregard,” “conscious indifference,” “outrageousness” and “wanton” behavior should be stricken from plaintiff’s complaint. Specifically, the defendants request this court to strike those words from paragraphs 18, 20, 20(g), 20(s), 21, 21(e), 210), 22,22(e), 22(1), 23(a), 23(b), 23(c), 24,25,43 and 44. A review of the briefs in this matter demonstrates that both plaintiff and defendants use some of the same cases in support of their positions. For example, both parties cite the case of Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980) in support of their positions. In Smith, a minor daughter and mother sought to recover against a defendant for personal injuries sustained in a motor vehicle accident. The defendant filed preliminary objections in the form of a motion to strike the counts which contained a demand for punitive damages based upon the alleged wanton and reckless manner in which the defendant drove the vehicle. The trial court sustained the preliminary objections and struck the counts containing the averments for punitive damages and the matter was appealed to the Superior Court. The Smith court determined that Pennsylvania is a fact pleading state in which a complaint must not only give the defendant notice of the plaintiff’s claim and the grounds upon which it rests but must also formulate the issues by summarizing those facts essential to the issues. Id. at 120, citing Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498 (1974). The Smith court went on to state that an essential fact needed to support a claim for punitive damages is that the defendant’s conduct be outrageous. Outrageous conduct is defined as an act done with bad motives or reckless indifference to the interest of others. Id. (citation omitted) The court defined “reckless indifference to the interest of others” as wanton misconduct meaning an intentional act done in disregard of a risk known to him or so obvious that he must be taken to have been aware of this and so great as to make it highly probable that harm will follow. Id., citing Evans v. Philadelphia Transportation Company, 418 Pa. 567, 574, 212 A.2d 440, 443 (1965).

In the Smith case, the plaintiff alleged that the defendant was driving too fast for conditions and failed to have proper and adequate control of her car. In upholding the trial court, the Superior Court held that the plaintiff failed to plead any facts indicating that the conduct of the defendant was outrageous.

Another case cited by both parties, is Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970). In Focht, the plaintiff appealed from the denial of punitive damages. The trial court ruled that since liability was admitted, evidence of intoxication would not be admitted at trial to support an award for punitive damages. Thereafter, the plaintiff filed a motion for new trial solely limited to the issue of punitive damages. The Focht court held that Pennsylvania has adopted the rules of punitive damages as set forth in section 908 of the Restatement of Torts, (replaced by the Restatement (Second) of Torts in which the language is substantially the same). Punitive damages are damages other than compensatory or nominal damages awarded against a person to punish him for his outrageous conduct. The Focht court stated that punitive damages are awarded only for outrageous conduct which is done with a bad motive or a reckless indifference to the interest of others. Id. at 38, citing Chambers v. Montgomery, 411 Pa. 339, 344, 192 A.2d 355, 358 (1963). In distinguishing the case from the Chambers case, the Superior Court held that a wrong motive or a prior relationship between the parties need not exist before punitive damages will be imposed. The Focht court determined that in deciding whether punitive damages will be awarded, the trier of fact can consider the act itself and all the circumstances including the motive of the wrongdoer, the relations between the parties and the provocation or want of provocation for the act. In reversing the trial court and upholding the plaintiff’s right for a new trial, the Focht court held that under appropriate circumstances, evidence of driving while under the influence of intoxicating liquors may constitute sufficient grounds for allowing punitive damages.

In this regard, we find that there are conflicts within the case law of Pennsylvania regarding the imposition of punitive damages. Instantly, the plaintiff alleges that Pipher consumed prescription drugs, including pain killers, which caused an intoxicating effect on her. Unlike the case law presented to the court, the decedent was not imbibing in intoxicating liquors; however, plaintiff alleges Pipher was taking medicine prescribed by a doctor. Under these facts, we have no hesitancy in concluding that the inclusion of the words indicating outrageous or wanton conduct will be struck from the complaint. Although we recognize that driving while under the influence of intoxicating liquors has veiy great potential for harm and serious injury, we believe that the use of prescription drugs sets forth a different scenario which does not rise to the level of outrageous wanton conduct, or reckless indifference to the interest of others sufficient to allow the imposition of punitive damages. Plaintiff alleges no facts to support bad motive or a reckless indifference towards the interests of others. The facts set forth in the complaint simply do not establish a bad motive on the part of Pipher. We find that accepting as true all facts that are well pleaded allegations, including reasonable inferences deducible therefrom, that the plaintiff has failed to set forth a cause of action for punitive damages.

The defendants have also filed a motion to strike the exemplary damages contained in the plaintiff’s complaint. As set forth above, we believe that the plaintiff’s claim for exemplary or punitive damages fails as a matter of law and are stricken from Counts I and II of plaintiff’s complaint.

Next, the defendants filed preliminary objections in the nature of a demurrer to Count I, negligent entrustment. Section 308 of the Restatement (Second) of Torts defines the tort of negligent entrustment in pertinent part as follows:

“Permitting improper person to use things or engage in activities.

“(a) It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing or conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.

“(b) This rule applies ... where the actor entrusts the thing to a third person . .. (when) the actor knows that the third person intends to misuse it, or the third person’s known character or the peculiar circumstances of the case are such as to give the actor good reason to believe that the third person may misuse it.” (emphasis supplied)

In applying the theory of negligent entrustment to a given set of facts, a defendant is liable because of his or her own actions in relation to the instrumentality or activity under his or her control. Ferry v. Fisher, 709 A.2d 399, 403 (Pa. Super. 1998). The “entruster’s liability is not dependent on, derivative of, or imputed from the entrustee’s actual liability for damages.” Id.

In reliance on the above standard, we conclude that plaintiff can maintain the action as set forth in Count I of the complaint. Plaintiffs allege that the defendant, Russ Pipher (Russ), entrusted the subject vehicle to Pipher knowing that she would use or improperly use pain medications or drugs which could affect her ability to operate the motor vehicle. Plaintiff’s complaint contains allegations that Pipher was a chronic user of pain medicine. The complaint also alleges that defendants, Calidad Auto Tech Inc., a/k/a C.A.T. Products, a/k/a Run-Rite (C.A.T.) knew or should have known that decedent would take prescription drugs and then operate the vehicle. Although the complaint makes general allegations that C.A.T. knew or should have known of decedent’s use of pain prescription medication, we believe it is too early to sustain a demurrer on this issue. Accepting as true all well pleaded facts contained in the complaint and inferences therefrom, we find that the complaint may support a cause of action under the legal theory of negligent entrustment and, therefore, the granting of a demurrer is inappropriate at this time.

Next, we will address the defendant’s demurrer to the allegation of Pipher’s agency in plaintiff’s complaint. The basic elements of an agency relationship are the manifestation by the principal that the agent shall act for him, the agent’s acceptance of the undertaking and the understanding of the parties’ principal to be in control of the undertaking. B & L Asphalt Industries Inc. v. Fusco, 753 A.2d 264, 269 (Pa. Super. 2000). The existence of the agency relationship is a question fact, however, the agency relationship must be proven by the party asserting it. Id. The plaintiff’s complaint avers that the decedent was an employee, workman, servant, agent or ostensible agent of the defendants, and acting within the scope of her employment. It is well established in Pennsylvania that a master is liable for the acts of his servant which are committed during the course and within the scope of the servant’s employment. Fitzgerald v. McCutcheon, 270 Pa. Super. 102, 410 A.2d 1270 (1979). To fasten the liability upon an employer, it must be demonstrated that the employer knew or in exercise of ordinary care should have known of the necessity and opportunity of exercising control of his employee. Dempsey v. Walso Bureau Inc., 431 Pa. 562, 246 A.2d 418 (1968).

Instantly, although the plaintiff alleges that Pipher was an employee of defendants, the complaint contains bald allegations and fails to set forth how Pipher was acting in the course of her employment at the time the cause of action arose. In addition, the plaintiff failed to show how Russ was the employer of his wife. There are simply no facts set forth in the complaint which, taken as true, make a valid claim as to agency of Pipher to the defendants. However, we will not withhold the right to amend where there is a possibility plaintiff can amend his complaint successfully. Accordingly, we will sustain the defendants’ objection on this point and permit plaintiff the opportunity to set forth facts to establish the basic elements of an agency relationship.

The defendants also filed a demurrer to the vicarious liability claim made in plaintiff’s complaint. Vicarious liability, also referred to as imputed negligence, “means in its simplest form that, by reason of some relation existing between A and B, the negligence of A is to be charged against B although B has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it.” See e.g., Crowell v. City of Philadelphia, 531 Pa. 400, 407-408, 613 A.2d 1178, 1181 (1992) (citing Prosser and Keaton on Torts (5th ed. 1984) §69, p. 499). Simply stated, vicarious liability imposes tort liability on an individual by virtue of that person’s relation to the actual tort-feasor. Crowell at 409, 613 A.2d at 1181. As set forth above, the plaintiff’s complaint makes invalid allegations regarding agency or imposition of vicarious liability and accordingly, we will sustain defendants’ preliminary objections on this point.

Next, the defendants preliminarily object in the nature of a demurrer, to the negligent employment/training claims contained in plaintiff’s complaint. In her brief, the plaintiff argues that the court must accept as true all well pleaded allegations and that if facts developed in discovery do not support such a claim, the defendant has the action of presenting the issue for resolution by motion for summary judgment. However, as the plaintiff has failed to set forth any allegations to support her claim, the complaint does not specify how defendants were negligent in this regard. Further, plaintiff fails to cite appropriate legal authority in support of her position and we believe the issue has been waived. Treasure Lake Property Owners Association Inc. v. Meyer, 832 A.2d 477 (Pa. Super. 2003). Hence, we find we must sustain defendants’ objection in this regard.

Finally, the defendants have filed preliminary objections in the nature of a motion to strike paragraphs 20(g), (h), (1), (s), (y), (aa), (bb) and 47 for lack of specificity. Defendants argue that the plaintiff failed to set forth specifically how the decedent failed to exercise due care and violate applicable rules, regulations and laws pertaining to safe and proper operation of motor vehicles and the like. It is well settled in the law that it is the function of a pleading to put the opponent on notice on what will be called upon to meet at trial and to define the issues for trial. See 2 Goodrich-Amram Second §1019:2.1 (2001). Pennsylvania Rule of Civil Procedure 1019(a) requires the content of a pleading to set forth material facts upon which the cause of action or defense is based in a concise and summary form. “The purpose of Rule 1019(a) is to require the pleader to disclose the ‘material facts’ sufficient to enable an adverse party to prepare its case.” Baker v. Rangos, supra at 349, 324 A.2d at 505 (citing Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 225, 282 A.2d 335, 339 (1971). Thq Baker court stated that “allegation will withstand challenge under 1019(a) if (1) they contain averments of all facts that plaintiff will eventually have to prove in order to recover . . . and (2) they are sufficiently specific as to enable the defendant to prepare his defense.” Id. at 350, 324 A.2d at 505, 506. (citation omitted) “Pa.R.C.P. 1019(a) has been construed to mean that a complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim.” Krajsa v. Keypunch Inc., 424 Pa. Super. 230, 235, 622 A.2d 355, 357 (1993). (citation omitted)

In reviewing the complaint as a whole, we find that the complaint apprises the defendants of the issues which they will be called upon to defend at trial. However, we believe that the plaintiff should specify any statutes, laws, rules or regulations which Pipher violated in order to allow defendants to properly prepare a defense. Accordingly, we will sustain the defendants’ demurrer. However, we will not withhold the right to amend where we believe that there is some reasonable possibilities that the plaintiff can amend her complaint successfully.

In light of the foregoing, we enter the following order,

ORDER

And now, August 22,2006, upon consideration of the defendants’, Russ Pipher, individually and as administrator of the estate of Marie Ann Pipher, Calidad Auto Tech Products Inc., a/k/a C.A.T. Products, a/k/a Run-Rite, preliminary objections to the plaintiff’s, Leslie Abramowitz, administrator of the estate of Susan Abramowitz, complaint it is hereby ordered as follows:

(1) Defendants, Russ Pipher, individually and as administrator of the estate of Marie Ann Pipher, Calidad Auto Tech Products Inc., a/k/a C.A.T. Products, a/k/a Run-Rite’s preliminary objections in the nature of a motion to strike the words “recklessness,” “conscious disregard,” “conscious indifference,” “outrageousness” and “wanton” from plaintiff’s complaint are sustained.

(2) Defendants’ preliminary objections in the nature of a motion to strike paragraphs request for exemplary damages in the complaint is sustained.

(3) Defendants’ preliminary objections in the nature of a demurrer to plaintiff’s actions for negligent entrustment and agency are overruled.

(4) Defendants’ preliminary objections in the nature of a demurrer to plaintiffs’ actions for vicarious liability and negligent employment/training are sustained.

(5) Defendants’ preliminary objections in the nature of a motion to strike paragraphs 20(g), (h), (1), (s), (y), (aa), (bb) and 47 for lack of specificity are sustained. It is further ordered that plaintiff is granted 20 days to file an amended complaint consistent with the foregoing opinion.


source: Caselaw Access Project

author: SPATARO, J.,

license: Public Domain

text:
    Commonwealth v. Jackson
    C.P. of Crawford County,
    no. CR 536-2006.

      Craig A. Howe, for Commonwealth.

      Michael R. Hadley, for defendant.
    June 20, 2007
   SPATARO, J.,

The defendant, William Jackson, was convicted of two counts of driving under the influence, 75 Pa.C.S. 3802(a)(1) and (c), and related summary offenses. The charges stem from an incident occurring on May 26,2006, on which date troopers with the Pennsylvania State Police effectuated a stop of defendant’s vehicle on SR 18 just past the intersection with SR 618 around 12:25 a.m. Following the stop, defendant was arrested for DUI after he was unable to perform the field sobriety tests. The troopers detected the odor of alcohol on his breath and noticed that his speech was slurred. Defendant was transferred to Meadville Medical Center where he consented to a blood test. Defendant’s blood was drawn at 1:20 a.m. at which time he had a BAC of 0.30 percent.

Defendant was sentenced on March 1, 2007 for his convictions. Defendant’s conviction for section 3802(c) was his second DUI offense in the last 10 years. Defendant was sentenced to a period of incarceration for a minimum period of 90 days to a maximum period of 60 months and ordered to pay costs of prosecution. Defendant filed a post sentence motion for relief on March 2, 2007 in which he raised the following issues:

(a) Whether the trial court improperly granted precedent to Commonwealth v. Fulton and excluded evidence of reputation for truthfulness.

(b) Whether the trial court erred in failing to present the jury with the three potential BAC tiers as to Count 2.

(c) Whether the defendant is entitled to house arrest after 45 days of incarceration.

(d) Whether the defendant must admit his guilt in the DUI essay.

We address each of these in seriatim.

Defendant asserts that the trial court erred in excluding evidence of defendant’s reputation for truthfulness, relying on Commonwealth v. Fulton, 574 Pa. 282, 830 A.2d 567 (2003), anon-precedent, plurality decision. Defense counsel is correct in his assertion that Fulton, as a plurality opinion, is not precedential. However, no error was committed because this court applied the law in excluding evidence of defendant’s reputation for truthfulness. Evidence of the defendant’s character, offered by the defendant, is admissible under two separate circumstances. See Pa.R.E. 404(a)(1), 608(a). Character evidence of a defendant is always admissible if it is evidence of a pertinent trait, meaning it must relate to the crimes charged. Evidence of the defendant’s character for truthfulness is admissible when the defendant testifies and the character of the defendant for truthfulness had been attacked by reputation evidence or otherwise.

Here we are unable to find that truthfulness was pertinent to the crimes charged, namely DUI and summary traffic offenses, nor do we find that the prosecution attacked defendant’s character for truthfulness, even though defendant testified at trial. In Fulton, the appellant had been convicted of rape, robbery, IDSI and other crimes, and his convictions rested on the identification testimony of the victims. The appellant testified as to his alibi at the time of the crimes. Thus, the appellant’s “credibility was of paramount importance at [his] trial.” Fulton, at 287, 830 A.2d at 569. The circumstances in Fulton were not present at defendant’s trial. Defendant did not have an alibi nor was his testimony directly confronted by another witness as in Fulton.

Even the dissent in Fulton, which defense counsel references, does not advocate an automatic right to present character evidence for truthfulness. Instead, Justice Saylor writes: “I would favor a more flexible approach, which would allow the trial court to permit rehabilitative evidence in limited situations where it believes that the witness’ character for veracity has been impugned.” Id. at 301, 830 A.2d at 578. The key here is “rehabilitative.” There can be no need for rehabilitation when a defendant’s character has not been assailed.

The second issue relates to the tier system in the present DUI law. Tier 1 offenses include violations of sections 3802(a)(1) (General impairment — Unsafe driving, no refusal or accident) and 3802(a)(2) (General impairment with a BAC of at least 0.08 but < 0.10). Tier 2 offenses include sections 3802(a)(1) (General impairment— Unsafe driving with accident), 3802(b) (High rate BAC 0.10 to 0.159), 3802(e) (minors) and 3802(f) (Commercial and school vehicles). Tier 3 offenses include violations of sections 3802(a)(1) (General impairment— Unsafe driving, with refusal), 3802(c) (Highest BAC rate 0.16 or >) and 3802(d) (Controlled substances).

Count 2 of the criminal information alleged a violation of section 3802(c) of the Vehicle Code, graded as a misdemeanor, and listed the penalty as falling within the 5-year/$ 10,000.00 range and noted the mandatory sentence of 90 days of imprisonment and a fine of not less than $1,500. These are the penalties that apply for a Tier 3, second offense DUI within 10 years. See 75 Pa.C.S. §3804(c)(2). The defendant was also charged with the Tier 1 offense of DUI (general impairment) for which he was convicted, but that conviction has no bearing on the issue at hand.

The issue here is whether the court must allow the jury to consider convicting the defendant of the Tier 1 and Tier 2 offenses that relate to the defendant’s BAC. Defendant argues that the jury must be allowed to consider convicting the defendant of a lesser-included offense and that Tier 1 and Tier 2 offenses, premised upon the defendant’s BAC, are lesser included offenses. Defendant’s theory is that one can’t have a BAC of 0.16 percent or greater, unless he or she also has a BAC of between 0.10 percent and 0.159 percent, and also has a BAC greater than 0.08 percent, but less than 0.10 percent.

As to whether a crime is a lesser-included offense of another crime is dependent upon the elements of the crimes in question. “A crime is considered a lesser-included offense when the elements of that crime are a necessary subcomponent of the elements of another crime (referred to as the greater-included offense).” Commonwealth v. Pellecchia 925 A.2d 848, 2007 WL 1532269, p. 3 (Pa. Super. 2007), citing Commonwealth v. Anderson, 538 Pa. 574, 580, 650 A.2d 20, 23 (1994).

We are unable to conclude that Tiers 1 and 2 are lesser-included offenses of Tier 3, as each has an element not found in the other two offenses. The crimes, by definition, are even mutually exclusive. Moreover, defendant was not charged in the criminal information with violating the Tier 1 and Tier 2 BAC related offenses, nor was there any evidence presented by the Commonwealth to support a finding of a BAC within the first or second tiers. The defendant’s blood sample was tested twice and both times the test result was 0.30 percent. The defendant did not offer any contradictory evidence. The defense argument is that a BAC guideline chart supported a finding that the defendant had a BAC within Tier 1 or Tier 2. However, the chart is nothing more than a guideline, which did not provide defendant’s actual BAC. The chart is designed to educate the general public as to how alcohol consumption can result in a BAC range, depending upon the number of drinks consumed and the weight and gender of the individual. The exhibit upon which defendant relies on was lifted from the Pennsylvania Liquor Control Board website without the cautionary disclaimers appearing elsewhere on the website. It is clearly not scientific evidence.

Beyond our finding that giving a lesser-included offense instruction would have been unwarranted, we fail to see how defendant could have been prejudiced by the court’s jury instructions. The jury was expressly told by the court that the Commonwealth’s burden was to prove beyond a reasonable doubt that defendant had a BAC of 0.16 percent or greater. If not satisfied that the Commonwealth had met that burden, then the jury was told to find defendant “not guilty.” Such an instruction favors the defense theory of the case because defendant would have been acquitted if the jury had been unconvinced beyond a reasonable doubt that defendant’s BAC was 0.16 percent or greater. The verdict slip even noted the requirement of a finding that the BAC was 0.16 percent or greater. For the court to offer the jury the option of finding defendant guilty of the Tier 1 and Tier 2 versions of DUI, in the absence of any evidence supporting such a verdict, would have been confusing and inconsistent with the “beyond a reasonable doubt” standard. In essence, the jury would have been invited to guess or speculate on their verdict.

Defendant requests that the court reconsider his sentence, specifically the court’s imposition of incarceration instead of house arrest. The sentencing court is guided by 42 Pa.C.S. §9721 in making decisions concerning the type of sentence to be imposed. Section 9721(b) requires the sentencing court to consider “the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant” when contemplating the sentencing options of section 9721(a). Defense counsel argues that defendant’s “background, employment record, and support from others” suggest he is entitled to a sentence that includes a period of house arrest. However, the devastating effect that drunk driving has had on society convinces this court that defendant’s sentence is appropriate, even in light of the factors mentioned by defense counsel.

We also add that even if the court were to find that a sentence that includes house arrest was appropriate, the Superior Court’s decision in Commonwealth v. Poncala would bar the imposition of house arrest. 915 A.2d 97 (Pa. Super. 2006). In Poncala, the court determined that the sentencing provisions of the DUI statute are mandatory and specific, and in effect trump the general and discretionary provisions of section 9804 (relating to county intermediate punishment). Id. at 105.

As to defendant’s last issue, the court addressed this at the time of argument on the post sentence motion. The court ordered the defendant to prepare a seven-page essay. The essay requirement is designed to assist in the defendant’s rehabilitation. Defendant takes issue with the essay, complaining that he would be required to admit his guilt in order to write the essay. Defendant need not admit his guilt in order to complete the DUI essay.

Essentially the essay consists of three parts: the impact the DUI conviction has on the defendant and those close to him, what could have been done to avoid the charge, and a profile of a person killed by a drunk driver. In order to describe the effects that the DUI offense has had on the defendant, his family and his friends, the defendant need not admit his guilt. Likewise, writing about what the defendant could have done to avoid a DUI arrest does not require an admission of guilt. The obvious purpose of the essay is to have the defendant reflect on the consequences of a conviction (whether he believes it is justified or not) and to recognize that there are alternatives to driving while under the influence.

Based on the foregoing, the following is ordered:

ORDER

And now, June 20,2007, the defendant’s post sentence motion for relief is denied. The defendant is directed to report to the Crawford County Correctional Facility on July 20, 2007 at 9 a.m. for the commencement of the service of the sentence imposed on March 1, 2007. Should the defendant file a notice of appeal with the Superior Court, the sentence will be stayed and the defendant permitted to remain free on the same bail and bond conditions imposed throughout these proceedings.

      . Defendant also raised in his post sentence motion an issue regarding two bills of cost filed by the Commonwealth. However, this matter was settled at the time of argument on the motion as defense counsel recognized that these bills of cost related to the Commonwealth’s expert Dr. Vey. Thus, we do not address this issue any further.


author: MOTTO, P.J.,

text:
    Lombardo v. Gardner

      C.P. of Lawrence County,
    no. 10102 of 2002, C.A.

      Peter M. Villari and Paul D. Brandes, for plaintiff.

      M. Brian O ’Conner, for defendant.
    May 21, 2007
   MOTTO, P.J.,

Before the court for disposition are the respective motions of plaintiff Eleanor Lombardo and defendant Stewart Gardner M.D. for post-trial relief following a jury verdict in favor of plaintiff and against defendant on a claim of negligent medical care provided to plaintiff by Dr. Gardner in May 2001, after right total hip replacement surgery performed at Jameson Memorial Hospital.

Plaintiff commenced this action to recover damages for injuries sustained because of the failure of Dr. Gardner and the employees of Jameson Hospital to diagnose an arterial clot in her leg for six days following right total hip replacement surgery performed by Dr. Gardner on May 9,2001. Due to defendant’s post-operative negligence in failing to diagnose and treat a growing arterial occlusion in Mrs. Lombardo’s right leg, she suffered ongoing restricted and diminished blood flow to her right lower leg (ischemia), with resulting progressive tissue and nerve damage, and, ultimately, was forced to undergo amputation of her right lower leg.

In 2002, Mrs. Lombardo instituted this lawsuit against Dr. Gardner, Jameson Memorial Hospital and four of its nurses. Defendant, Dr. Gardner, filed an answer to the complaint. However, he never filed a new matter, cross-claim or third-party complaint.

During the course of litigation, plaintiff served various interrogatories and document requests on defendant, Dr. Gardner, seeking, among other things, disclosure of his own applicable opinions regarding the care and injuries at issue, as well as the names of expert witnesses and their opinions, which he planned to offer at the time of trial. Defendant offered sworn answers to interrogatories regarding his own opinions and produced expert reports by Paul Liefeld M.D., an orthopedic surgeon, and Satish Muluk M.D., a vascular surgeon.

Dr. Gardner and his experts were not critical of any care provided to Mrs. Lombardo by another defendant or a non-party, and no contention was made by them that Mrs. Lombardo was somehow negligent or assumed the risk. Dr. Gardner never alleged that Mrs. Lombardo’s injuries and disability were caused by any actions or inactions of any nurse or other care provider. Rather, Dr. Gardner opined under oath in his answers to interrogatories (read to the jury) that Mrs. Lombardo’s injuries and disability were not caused nor contributed to by the negligence of any other person, Mrs. Lombardo was not comparatively at fault nor did she assume the risk, and that her injuries and disability were related solely to her “sustain[ing] a compression injury to the artery closest to the hip joint resulting in the formation of a clot which caused the blockage of the vessel.” N.T. 10/26/06, at 164:3-11; 165:25-166:6; 166:716.

In defendant’s pretrial statement, Dr. Gardner listed only Drs. Liefeld and Muluk as experts who would testify at trial in support of the defense. Dr. Gardner did not offer himself as an expert witness on standards of care, including nursing care, via his pretrial statement nor via any proffer during trial nor via any question posed to him during trial.

Immediately before trial began, four nurses were voluntarily dismissed from the case by stipulation of all parties and the court was advised that plaintiff had given Jameson Memorial Hospital and Jameson Health Systems Inc. (collectively, the Hospital) a joint tort-feasors release. Counsel for Dr. Gardner then moved to amend his answer to plead the benefit of that release and to retain the Hospital as a party so that their negligence, if any, could be determined with that of Dr. Gardner. That motion was denied and the Hospital was excused from further participation in the case. Dr. Gardner orally moved for leave of court to (a) file a cross claim against the Hospital to pursue the Hospital’s vicarious liability for what Dr. Gardner wanted to claim was the causal negligence specifically of the four hospital nurses, and (b) file a new matter against plaintiff to plead the release. N.T. 10/23/06, at 2:11 -3:1. Dr. Gardner further sought to compel plaintiff’s vascular surgery expert, James Salander M.D., to testify in support of defendant’s hoped-for claim against the Hospital. Id. Given that defendant did not have his own expert witnesses to support such a claim, he could not make out a prima facie case against the Hospital without forcing plaintiff’s experts to testify on his behalf. Plaintiff opposed Dr. Gardner’s oral motions and supported dismissal of the Hospital. The court granted the motion of the Hospital and denied the motions of Dr. Gardner.

The trial started with jury selection and opening statements on October 23,2006. Plaintiff presented her expert witnesses, lay witnesses and medical fact witnesses in the days thereafter. At no time did defendant object to the qualification or expertise of any of plaintiff’s experts, nor did defendant obj ect to the areas of testimony of any of plaintiff’s experts. SeeN.T. 10/24/06, at75:13-156:12 (David Smith M.D., orthopedic surgeon); 158:1-250:3 (James Salander M.D., vascular surgeon); 251:2-285:8 (Jody Masterson, life care planner).

During trial, Dr. Salander criticized Dr. Gardner for not having included an arterial clot in his differential diagnosis and thus not having tested for this possibility. When cross-examined about his ability to testify as to the standard of care of an orthopedic surgeon, Dr. Salander explained that the need to make such a diagnosis is an area in which orthopedic surgery and vascular surgery overlap.

On October 26,2006, defendant called Dr. Muluk out of turn to accommodate the doctor’s schedule to testify as an expert in defendant’s case in chief. Thinking the defendant might attempt to elicit orthopedic standard of care opinions from his vascular surgery expert, immediately before the expert took the witness stand plaintiff orally made a motion to the court in chambers. Plaintiff’s motion to limit the expert’s testimony was based on the expert’s qualifications specified in his curriculum vitae and the fact that the defendant was still going to produce an orthopedic surgery expert to testify to the standard of care issues. Per the doctor’s curriculum vitae, it was apparent his field of expertise was in vascular surgery.

Defendant’s basis for claiming that Dr. Muluk should be permitted to testify to an orthopedic standard of care was a contention that Dr. Muluk’s vascular surgery expertise generally overlapped with that of an orthopedic surgeon. The matter at issue was an orthopedic surgeon’s thought processes and proficiency in diagnosing an allegedly “subtle” vascular injury or compromise. Defendant alleged that Dr. Muluk should be allowed to explain that Dr. Gardner’s orthopedic thought processes in diagnosing Mrs. Lombardo’s signs and symptoms, and Dr. Gardner’s failure to timely diagnose the vascular injury, were reasonable. However, this court found that there was no factual basis cited by defendant to support the claim concerning Dr. Muluk’s purported overlap of expertise.

Additionally, during Dr. Muluk’s testimony, he testified concerning the cause of Mrs. Lombardo’s injuries and the impact of care received by her after her arterial occlusion was finally diagnosed. Based on this testimony, there was allegedly no damage to Mrs. Lombardo’s leg before May 15 or 16. Dr. Muluk also testified to causation issues elicited by defendant. He testified to what Mrs. Lombardo’s injuries were related, how much time could be allowed to pass from diagnosis of the occlusion to resolution of the occlusion before permanent damage could occur to the leg, how the time lag from diagnosis to surgical resolution of the occlusion and treatment of its aftermath affected Mrs. Lombardo’s outcome, and how the care Mrs. Lombardo received at the University of Pittsburgh Medical Center impacted her outcome.

Defendant is arguing in his post-trial motions that Dr. Muluk was prevented from testifying about whether the same corrective procedure would have been required if the diagnosis of the clot had been made on May 9 or May 10, and about whether the failure to diagnose it before May 15 complicated the surgery.

On October 30,2006, the jury entered its verdict, finding Dr. Gardner causally negligent and awarding damages in the total amount of $2,794,000, which included $50,000 for past and future lost earnings and earning capacity, $744,000 for past and future medial expenses and life care expenses, and $2,000,000 for past, present and future pain and suffering, embarrassment, humiliation, loss of the enjoyment of life and disfigurement. Dr. Gardner thereafter filed a post-trial motion requesting a new trial, or, in the alternative, a remittitur in accordance with Pa.R.C.P. 1042.72 and 40 P.S. § 1303.515. The issues to be decided are as follows:

I. Was Dr. Gardner entitled to have defendants Jame-son Memorial Hospital and Jameson Health Systems Inc., retained as defendants after they had entered into a joint tort-feasor release with plaintiff?

II. Was Dr. Muluk, a vascular surgeon, qualified to testify concerning the standard of care applicable to Dr. Gardner, an orthopedic surgeon?

III. Should defendant’s vascular surgery expert have been permitted to testify that negligence in not diagnosing a clot prior to May 15 could not have increased plaintiff’s risk of harm, and did not complicate the ensuing vascular surgeries to plaintiff’s leg?

IV. Was the jury’s verdict on pain and suffering damages clearly excessive and not supported by the evidence, thus requiring remittittur?

When considering a motion for new trial, the decision whether to grant or deny a new trial lies within the discretion of the trial court. As long as there is a basis on the record to support the ruling of the trial court, the court’s decision will not be reversed. Any conflicts in the evidence at issue must be resolved in favor of Mrs. Lombardo, the winner at trial of the issues now raised by defendant. Poleri v. Salkind, 453 Pa. Super. 159, 683 A.2d 649 (1996). When reviewing a decision to grant or deny a direct verdict, the court “must consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to the verdict winner.” Goldberg v. Isdaner, 780 A.2d 654, 659 (Pa. Super. 2001). Only where there is an abuse of discretion or an error of law should a verdict be reversed. See Fleck v. Timmons, 374 Pa. Super. 417, 426-27, 543 A.2d 148, 153 (1988).

Dr. Gardner asserts that he was entitled to have defendants Jameson Memorial Hospital and Jameson Health Systems Inc. retained as defendants after they had entered into a joint tort-feasor release with plaintiff.

In seeking apportionment of liability or contribution among alleged joint tort-feasors, the burden of proving the joint causal negligence and the degree of apportionment or contribution among the alleged joint tort-feasors rests with the defendant. Wade v. S.J. Groves & Sons Company, 283 Pa. Super. 464, 424 A.2d 902 (1981). Accordingly, for defendant to establish aprima facie case in furtherance of his desired new claim against the hospital nurses, he would have been required to prove at trial that (1) the nurses owed a duty to Mrs. Lombardo, (2) the nurses breached that duty, (3) the breach was a proximate cause of, or a substantial factor in, bringing about the harm suffered by Mrs. Lombardo, and (4) the damages suffered by her were a direct result of the harm. Poleri, supra at 167, 683 A.2d at 653; Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. 2005).

The party with the burden of proof in a medical malpractice case, here the defendant asking for the Hospital to be joined as additional defendants, must establish all four of the elements via his own expert; that is, he must “establish through expert testimony that... [the nurses’] acts deviated from an accepted standard of care and that the deviation was a substantial factor in causing plaintiff’s harm.” Grossman, supra, 868 A.2d at 567; Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52, 54 (1997); Toogood v. Rogal, 573 Pa. 245, 261, 824 A.2d 1140, 1149 (2003). If the party with the burden of proof cannot establish each of the four elements through the facts and his expert’s testimony, the claim is legally insufficient and must be dismissed as a matter of law.

In the case at bar, Dr. Gardner did not have any evidence to establish in his case in chief that the nurses breached any duty owed to Mrs. Lombardo, that any alleged breach brought about her harm and that her damages were a direct result of the hann occasioned by the nurses. Moreover, the plaintiff was not presenting any case against the nurses. Therefore, any evidence concerning alleged culpability of the nurses was irrelevant because nursing negligence was not an issue of consequence in the case.

This court found that (a) Dr. Gardner never proffered any expert report or opinion critical of the Hospital or its nurses; (b) defendant never filed a cross claim (not even one contending another party’s causal neglect or seeking an apportionment of liability among defendants); and (c) defendant never filed a new matter. The decision to grant or deny leave to amend is within the sound discretion of the trial court, and will not be reversed absent a clear abuse of discretion. Junk v. East End Fire Department, 262 Pa. Super. 473, 490, 396 A.2d 1269, 1277 (1978). Since Dr. Gardner could not establish a negligence claim against the hospital nurse, the court denied his motion for leave to amend his answer to the complaint to include a new matter and cross claim. Any such claim would be legally insufficient as a matter of law. When a claim is legally insufficient, it may not go to the jury and must be dismissed. See Pa.R.C.P. 1028(a)(4). Where the prima facie elements of a claim will not be established, the right to amend a pleading to assert such a claim is properly withheld. Spain v. Vicente, 315 Pa. Super. 135, 142-43, 461 A.2d 833, 837 (1983); Behrend v. Yellow Cab Company, 441 Pa. 105, 110, 271 A.2d 241, 243 (1970).

After this court denied the defendant’s motion to amend his pleadings, Dr. Gardner sought to compel plaintiff’s vascular surgery expert to testify on his behalf concerning nursing standards of care and issues of causation. The defendant wanted the plaintiff’s expert to discuss the nursing issue on cross-examination during plaintiff’s case in chief. Since defendant had no witnesses to support his new claim concerning the alleged culpability of the nurses, his hope was to force plaintiff’s expert to support the elements that would have made up defendant’s burden of proof had he been permitted to proceed with his claim. This was improper as a matter of law.

It is well established in Pennsylvania that an expert witness cannot be compelled to testify as to his opinion against his will. Jistarri v. Nappi, 378 Pa. Super. 583, 595, 549 A.2d 210, 216 (1988). The private litigant has no more right to compel a citizen to give up the product of his brain, than he has to compel the giving up of material things. Pennsylvania Company for Insurances on Lives and Granting Annuities v. Philadelphia, 262 Pa. 439, 442, 105 A. 630 (1918). Aparty may not even subpoena the testimony of an expert for another party. Spino v. John S. Tilley Ladder Co., 448 Pa. Super. 327, 353, 671 A.2d 726, 739 (1996), affirmed, 548 Pa. 286, 696 A.2d 1169 (1997). Nor may one party utilize the expert report of another party. Columbia Gas Transmission Corp. v. Piper, 150 Pa. Commw. 404, 409, 615 A.2d 979, 982-83 (1992). The basis for this rule is an acknowledgement of an expert’s proprietary interest in his own opinion, and the recognition that he should not be required to relinquish it without his consent. Evans v. Otis Elevator Co., 403 Pa. 13, 27, 168 A.2d 573, 580 (1961); Pascone v. Thomas Jefferson University, 357 Pa. Super. 524, 516 A.2d 384 (1986).

In arguing that defendant was entitled to have the Hospital and nurses retained as defendants after they had entered into a joint tort-feasor release, the plaintiff relies on Herbert v. Parkview Hospital, 854 A.2d 1285 (Pa. Super. 2004). In Herbert, administratrix of a deceased patient’s estate filed a medical malpractice action against a hospital and three physicians, alleging that the physicians failed to find an obstruction in the patient’s airway, leading to his death. Before the trial began, one doctor was released from the case and administratrix entered into a joint tort-feasor release agreement with all remaining defendants except one doctor. The trial court included the names of the released defendants on the verdict sheet, thus allowing the jury to apportion liability to those defendants who had settled with administratrix. The jury returned a verdict for the plaintiff. The plaintiff then filed post-trial motions claiming the trial court erred in including the names of the parties to the release on the jury verdict sheet.

The issue in Herbert was whether or not released defendants should have been included on the verdict sheet given the evidence actually submitted to the jury. Unlike the case before this court, the issue was not whether the remaining defendant could legally make out a claim for apportionment of liability against those defendants. Additionally, it was the plaintiff on appeal who asserted error in including the released defendants on the verdict sheet and as such, the record had to be viewed in the light most favorable to the defendant on that issue. The Superior Court ruled that where no evidence of the released defendant’s alleged causal neglect will be presented at trial, it is improper to include it on the verdict sheet. Furthermore, in Herbert, the released doctor was found properly included on the verdict sheet because the plaintiff’s physician expert during plaintiff’s case in chief, voluntarily implicated the neglect of the released defendant-doctor. In the case before this court, there was no evidence presented by plaintiff’s witnesses during their case in chief that would implicate the released defendants.

The defendant in his brief also cites the case of Davis v. Miller, 385 Pa. 348, 123 A.2d 422 (1956). In Davis, the issue was apportiomnent of liability among motor vehicle drivers in a simple motor vehicle negligence claim. 385 Pa. at 349, 123 A.2d at 423. No expert testimony was required in such a matter, as the jury could understand the driver negligence issues on its own. The Supreme Court determined it was an error not to have the jury apportion liability among the released defendant and the remaining defendant because sufficient, competent evidence concerning the released defendant was inevitably going to be presented to the jury simply by virtue of testimony concerning the circumstances of the accident.

In the case before this court, no inculpatory testimony on nursing standards of care was going to be introduced in plaintiff’s case in chief. No witness was going to cover the issue. The door was not going to be opened by the plaintiff. Based on that representation prior to the start of the testimony, plus the fact the defendant had no such evidence to present, this court correctly denied the defendant’s motion. The plaintiff’s vascular surgery expert never testified concerning the nursing standard of care, nor about any breach in a standard of care by the nurses, and not about any harm relating to any act or omission of any nurse. The testimony of Dr. Salander covered the medical diagnosis of vascular occlusion, and how failure to timely diagnose can lead to and ultimately did result in Mrs. Lombardo’s injuries. This testimony covered areas particular to doctors, not nurses.

This court is mindful of the rule expressed and applied by the courts of this Commonwealth that one party may not compel an expert for the opposing party to divulge his expert opinion. Thus, one party may not subpoena the testimony of an expert for another party. Spino v. John S. Tilley Ladder Co., 448 Pa. Super. 327, 353-54, 671 A.2d 726, 739 (1996), aff’d, 548 Pa. 286, 696 A.2d 1169 (1997). Nor may one party utilize the expert report of another party. Columbia Gas Transmission Corp. v. Piper, 150 Pa. Commw. 404, 409, 615 A.2d 979, 982-83 (1992). The basis for this rule is an acknowledgement of an expert’s proprietary interest in his own opinion, and the recognition that he should not be required to relinquish it without his consent. The private litigant has no more right to compel a citizen to give up the product of his brain than he has to compel the giving up of material things. Id. at 409, 615 A.2d at 982.

While the defendant now argues that it was an error for this court not to permit him to establish a prima facie case against the nurses by reference to Dr. Salander’s report, the fact remains that Dr. Salander is not a nurse and it would be up to the defendant to present a nursing expert to testify to nursing standards of care. The report itself was irrelevant, hearsay and inadmissible. Pompa v. Hojnacki, 445 Pa. 42, 281 A.2d 886 (1971); Pa.R.E. 402. Since Dr. Salander did not testify to issues or nursing culpability, the nursing issue remained irrelevant to the case being presented by plaintiff and the expert could not be cross-examined with the report to demonstrate a prior inconsistent statement. Because there was no statement made in the trial testimony, there could be no prior inconsistent statement.

Finally, as to defendant’s assertion that he should have been permitted to testify as an expert on his own behalf with respect to nursing standards of care, the fact remains that issues not raised during the trial are waived with regard to post-trial motions. Pa.R.E. 103; Adams Icy v. Picknick, 412 Pa. Super. 544, 548, 603 A.2d 1069, 1071 (1992); Connelly v. Roper Corporation, 404 Pa. Super. 67, 71, 590 A.2d 11, 13-14 (1991). In order to preserve an issue for review, a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Failure to timely object to a basic and fundamental error will result in waiver of that issue. Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa. Super. 2000). Nowhere in the record is that issue preserved, therefore, the matter cannot serve as a basis to award a new trial or alter the jury verdict.

The second issue to be decided is whether this court correctly granted plaintiff’s motion to preclude defendant’s vascular surgery expert from testifying to the standard of care of an orthopedist.

Defendant contends this court erred in precluding his vascular surgery expert, Dr. Muluk, from testifying to standards of care applicable to orthopedists. In support of his allegation, defendant cites 40 Pa.C.S. § 1303.512(e) of the MCARE Act, and contends that this court erroneously interpreted and applied the cited subsection.

The MCARE Act provision concerning qualifications of expert witnesses is contained in 40 P.S. §1303.512. While section 1303.512(c) states the general rule that testimony concerning the standard of care of a board certified specialist is to come from a physician who is board certified in the same specialty, that restriction is subject to the exception contained in section 1303.512(e) The relevant portions of the MCARE Act state:

“Section 1303.512(c) Standard of care. — In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician’s standard of care also must meet the following qualifications:

“(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.

“(2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e).

“(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).

“Section 1303.512(e) Otherwise adequate training, experience and knowledge. — A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable subspecialty or a related field of medicine within the previous five-year time period.” 40P.S. §1303.512.

The application of section 1303.512(e) to the qualifications of a particular expert’s qualifications is a question of law for which a review is plenary. Decisions regarding admission of expert testimony, like other evidentiary decisions, are within the sound discretion of the trial court. Weiner v. Fisher, 871 A.2d 1283, 1285 (Pa. Super. 2005). The issue regarding an expert’s qualifications under the MCARE Act is a question of statutory interpretation.

Defendant asserts that this court was in error for not waiving the same specialty and board certification requirements as it pertains to the defense vascular surgery expert, Dr. Muluk. Since the ruling by this court occurred before the doctor took the witness stand and the defendant never sought to place before the court actual testimony of Dr. Muluk, the record must be viewed in light of what was available to the court at the time of its ruling. See Pa.R.E. 103(2). The only evidence about Dr. Muluk’s qualifications was his curriculum vitae and the arguments of counsel. The curriculum vitae provided that the doctor had education, training, knowledge and experience solely in the area of vascular surgery. Nowhere in the doctor’s resume did it indicate any expertise in orthopedies. Based on the record presented, this court was well within its discretion in not waiving the same specialty and board certification requirements.

Furthermore, even if the court had waived the “same specialty and board certification” requirements of section 1303.512(c)(2), the defendant still had the burden to prove that Dr. Muluk satisfied section 1303.512(c)(1), in that he was “substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.” Subsection (e) of section 1303.512 of the Act does not allow for waiver of this portion of subsection section 1303.512(c). The defendant did not establish that Dr. Muluk was substantially familiar with the standard of care for the “specific care at issue,” which is that of an orthopedist timely and properly evaluating the signs and symptoms of an orthopedics patient, then making a differential diagnosis and a final diagnosis of a blood clot in an artery after orthopedic hip replacement surgery. The testimony cited by the defendant at page 8 of his brief does not support the assertion that Dr. Muluk possesses specialized knowledge regarding orthopedic standards of care. The fact that a vascular surgeon has familiarity with the significance of circulatory signs and symptoms and the fact that he is called in at times by orthopedists to consult on or treat post-operative patients who have vascular conditions does not prove that Dr. Muluk is specially knowledgeable regarding how orthopedists are expected or supposed to think about patients after orthopedic surgery.

This case centered on the failure of an orthopedist to consider and include arterial occlusion in his differential diagnosis based on plaintiff’s signs and symptoms, and then to actually diagnosis the condition, as opposed to a failure to properly treat a condition that was correctly diagnosed. Accordingly, while the standard of care regarding how to treat an already diagnosed vascular condition may be similar between vascular surgeons and orthopedists, the same cannot be said concerning how orthopedists think through the significance of their patients’ signs and symptoms in an effort to arrive at a diagnosis. Therefore, this court was correct in its ruling not permitting Dr. Muluk to testify to orthopedic standards of care.

The third issue to be decided by this court is whether defendant should have been permitted to develop the assertion through Dr. Muluk that an earlier diagnosis of plaintiff’s clot would not have decreased Mrs. Lombardo’s risk of harm.

Defendant contends that, although Dr. Muluk testified that Mrs. Lombardo did not suffer any damage to her leg between May 9 and May 15 and that there was no reason to operate on it until May 15, defendant was prevented from fully developing this issue, with the court sustaining objections to questions about whether the same procedure would have been required if the diagnosis of a clot had been made on May 9 or May 10 and about whether the failure to diagnose it before May 15 complicated the surgery. (Tr. Oct. 26 at 24-25, 48, 52 and 58-59.)

Dr. Muluk was allowed to freely speak to the physiology of what occurred to plaintiff and how the injury to the leg was brought about. The ruling of the court went only to preventing Dr. Muluk from giving expert opinion relative matters for which he was not qualified as an expert, i.e., standard of care of an orthopedic surgeon, or that the cause of the harm to plaintiff was the result of the negligence of other doctors or health care providers not named in the lawsuit, or opinions that were not within the scope of his expert report. Dr. Muluk was not precluded from explaining the physiology of what caused the harm to plaintiff. (Tr. Oct. 26, at p. 51.)

The Pennsylvania Supreme Court held in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), that “once the jury is apprised of the likelihood that defendant’s conduct resulted in plaintiff’s harm, that section [Restatement (Second) of Torts §323(a)] leaves to the jury, and not the medical expert, the task of balancing probabilities.” Id. at 273, 392 A.2d at 1286.

Dr. Muluk testified that regardless of Mrs. Lombardo’s signs and symptoms before the morning of May 15, there was no cause or justification to operate on her. It was only when there was no pulse found in her foot on May 15, according to Dr. Muluk, the proverbial clock started running. Consequently, the jury could have inferred that any negligence up to that point was irrelevant and any failure to operate before May 15 could not have complicated the surgery performed on May 15 because, according to Dr. Muluk, no surgery was even required before May 15. This was all common sense and capable of being understood by the jurors, who are reasonably expected to apply their own training, knowledge, intelligence and experience to the evidence presented to them. Collins v. Zediker, 421 Pa. 52, 53, 218 A.2d 776, 777 (1966); and Kent v. General Chemical Co., 285 Pa. 34, 37, 131 A. 588, 589 (1925) (ruling that where facts concerning causation issues are testified to “with sufficient clearness and definiteness” that a layperson could understand them or draw inferences from them, the jury is permitted to apply their collective knowledge and common sense to independently evaluate the evidence without the need for expert testimony). Therefore, the court finds that the defendant suffered no prejudice by virtue of the court sustaining the objections because the defendant submitted the issues via his expert for the jury’s consideration despite this court’s ruling that precluded testimony from Dr. Mululc as to opinions on standard of care for which he was not qualified as an expert or as to opinions not included in his expert report.

As to the question to Dr. Muluk regarding whether failure to diagnose the blood clot increased the risk of harm to plaintiff, there was no factual basis developed to allow for an opinion on that question, nor was that issue addressed in the expert report of Dr. Muluk. Therefore, the court properly sustained the objection to that question.

The fourth issue to be decided is whether the defendant is entitled to remittitur of the jury’s pain and suffering verdict and whether an evidentiary hearing is required before ruling on the defendant’s request.

The defendant seeks a remittitur of the jury’s award of noneconomic damages, claiming that the award was excessive under the law. The defendant relies on the MCARE Act, 40 Pa. C.S.§1303.515, but must also comply with Pa.R.C.P. 1042.72.

Rule of Civil Procedure 1042.72(b) and the comment thereto mandate that the defendant has the burden of proof to show the damage award “deviates substantially from what could be reasonable compensation.” Subsection (b) further mandates that included in the evidentiary assessment is (1) evidence supporting plaintiff’s claim, (2) factors that should have been taken into account in making the award, and (3) whether the award, when assessed against the evidentiary record, “strongly suggests” the jury was influenced by passion or prejudice. Notwithstanding the mandate of this rule, the defendant has not come forth with any evidence to support his claim. Additionally, section 515(a) of the MCARE Act requires the defendant to produce sufficient evidence so the trial court can “consider evidence of the impact, if any, upon availability or access to heath care in the community if the defendant health care provider is required to satisfy the verdict rendered by the jury.” The defendant in this case has not produced any such evidence. The defendant, in fact, conceded throughout the trial that the plaintiff’s pain, suffering, loss of life’s pleasures and the like were tremendous.

“In reviewing the award of damages... courts should give deference to the decisions of the trier of fact who is usually in a superior position to appraise and weigh the evidence.” Ferrer v. Trustees of University of Pennsylvania, 573 Pa. 310, 825 A.2d 591, 611 (2002). The large size of a verdict by itself is not evidence of excessiveness. Layman v. Doernte, 405 Pa. 355, 175 A.2d 530 (1961). The note in subsection (b) of Rule 1042.72 states that “the factors that the trier of fact should take into account in making an award of noneconomic damages are those set forth in the jury instructions described in Rule 223.3.” Rule 223.3 indicates that damages for past and future noneconomic loss consist of four items: (1) pain and suffering; (2) embarrassment and humiliation; (3) loss of ability to enjoy the pleasures of life; and (4) disfigurement. Mrs. Lombardo presented evidence for each of these items of damages, including: the actual loss of her leg, the jury’s opportunity to see her each day in court, the pictures of her injuries, the pictures of her in pain during wound debridements, and the testimony of relatives that they heard and watched her holler in pain during wound debridements. The facts presented to the jury fully support its verdict.

In McManamon v. Washko, 906 A.2d 1259 (Pa. Super. 2006), the Pennsylvania Superior Court affirmed an award of $10,000,000 for noneconomic damages for an accident victim who suffered multiple fractures and a brain injury resulting in cognitive deficits. The facts and circumstances cited by the Superior Court in McManamon are virtually identical to the facts and circumstances presented to the jury concerning Mrs. Lombardo. Each of those facts on damages were uncontested by the defendant. In Carrozza v. Greenbaum, 866 A.2d 369 (Pa. Super. 2004), the court affirmed an award of $4,000,000 after defendant’s failure to timely diagnose breast cancer led to a mastectomy, chemotherapy and radiation treatments, and associated disfigurement. Potochnickv. Perry, 861 A.2d 277 (Pa. Super. 2004) (affirming award of $10,000,000 to accident victim who suffered a fracture and a closed head injuiy resulting in cognitive deficits).

With respect to the total verdict, 40 P.S. §1303.515 requires the court to consider “the impact, if any, upon availability or access to health care in the community if the defendant health care provider is required to satisfy the verdict rendered by the jury” and to “specifically set forth the factors and evidence it considered.” The defendant submitted no evidence to this court that his business or the community would suffer great harm if the jury award is affirmed. The defendant has not provided the court with any actual facts or verification of facts for consideration. Therefore, the court is going to affirm the jury award because the defendant has not come forth with any evidence to support his claim.

Although the plaintiff was the verdict winner in this case, the plaintiff also filed a motion for post-trial relief contending that the court erred in denying plaintiff’s motion for directed verdict since the defense expert agreed that the defendant violated the standard of care and that the defendant’s negligence resulted in some harm to the plaintiff.

The law in this Commonwealth is clear: once plaintiff establishes as a matter of admitted fact the issue of negligence, and that the negligence brought about at least some objectively verifiable harm, plaintiff is entitled to judgment as a matter of law on those issues. Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002) (where the experts agreed the accidents caused some injury, but the jury found to the contrary, that finding was determined to have contradicted all the evidence of the medical experts. A new trial on damages was warranted because such a verdict bears no rational relation to the evidence adduced at trial). The court finds that this case was properly submitted to the jury to determine both negligence and causation issues. Accordingly, the court will enter an order of even date which will deny both the defendant’s and plaintiff’s post-verdict motions.

ORDER

And now, May 21, 2007, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the motion of defendant Stewart Gardner M.D. for post-trial relief and plaintiff Eleanor Lombardo’s cross-motion for post-trial relief in the alternative are each denied.


author: WETTICK JR., A.J.,

text:
    Shipers v. Tunic
    C.P. of Allegheny County,
    no. AR04-002023.

      Evan E. Lloyd, for plaintiff.

      DavidHarouse, for defendants.
    May 14, 2007
   WETTICK JR., A.J.,

Defendant’s motion for judgment on the pleadings seeking dismissal of plaintiff’s complaint on the ground that plaintiff’s claims are barred by the statute of limitations is the subject of this opinion and order of court.

This is a personal injury claim arising out of a September 18, 2003 automobile accident. The lawsuit was instituted through a complaint filed on April 8,2004. The sheriff’s return stated that defendant was not found. On December 17, 2004, plaintiff reinstated her complaint and the sheriff attempted service. The sheriff could not make service.

Plaintiff reinstated the complaint on October 27,2006. Defendant was served on November 1, 2006.

Defendant seeks judgment on the pleadings on the ground that there was a 22-month period in which plaintiff took no steps to effect service.

It is not claimed that plaintiff failed to make a good-faith effort to serve defendant at the time the complaint was filed or at the time the complaint was initially reinstated. The issue raised in this case is whether the good-faith effort to effectuate notice of the commencement of the action in December 2004 tolled the limitations period for an additional two years, or whether plaintiff’s claims are barred by the statute of limitations because of plaintiff’s failure to continuously seek to effect service of the complaint.

The Pennsylvania Supreme Court addressed this issue in Witherspoon v. City of Philadelphia, 564 Pa. 388, 768 A.2d 1079 (2001). The opinion of Justice Zappala, announcing the judgment of the court, described the development of the law.

Prior to Lamp v Heyman, 469 Pa. 465, 366 A.2d 882 (1976), the filing of a complaint or writ within the statute of limitations tolled the statute of limitations for a period of time equivalent to the statute of limitations applicable to the cause of action. The issuance of a writ or reinstatement of a complaint kept the action alive for another equivalent period regardless of whether service was even attempted. Witherspoon, 768 A.2d at 1082. CndexLamp and its progeny, a single good-faith effort to effect service was required to keep the action alive for another equivalent period. Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 594, 511 A.2d 757, 759 (1986).

In Witherspoon, the accident occurred on September 17,1994. The lawsuit was commenced by the filing of a writ on September 12, 1996. Attempts to effect service within 30 days were not successful. A complaint was filed on May 7, 1997 and service was made on June 3, 1997. In his opinion, Justice Zappala opined that Pennsylvania case law should reject the equivalent period doctrine. Instead, Lamp should be extended to require that process be immediately and continually reissued until service is made. Only Chief Justice Flaherty joined in this opinion. Witherspoon, 768 A.2d at 1083-84.

In a dissenting opinion, Justice Newman stated that she could not subscribe to the abolition of the equivalent period doctrine. She believed the court should hold that a correct reading of Lamp requires only that a plaintiff attempt in good faith to serve the particular process issued within the limitations period and that, as long as the plaintiff has acted in good faith by complying with the rules of service for process, the plaintiff should be protected by the equivalent period doctrine, i.e., protection from a limitations defense for a span of time equal to the limitations period that applies to the cause of action. She stated that whereas the equivalent period doctrine provides certainty as to how much time the plaintiff has in which to attempt to locate and properly serve a defendant, under the requirements proposed by Justice Zappala, lower courts would be required to evaluate, on a case-by-case basis, whether a plaintiff’s actions to locate and serve the defendant, following an unsuccessful attempt to serve the defendant at the end of the limitations period, were sufficiently immediate. Chief Justice Cappy joined in this dissenting opinion. Witherspoon, 768 A.2d at 1087.

Justice Saylor filed a concurring opinion in which Justices Castille and Nigro joined. They agreed with the dissent that Justice Zappala’s approach is unduly restrictive.

In summary, prior to Witherspoon, under settled Pennsylvania case law, one good-faith attempt to serve process within the limitation period protected the plaintiff from a limitations defense for a span of time equal to the limitations period that applied to the plaintiff’s cause of action and any subsequent good-faith effort extended the limitation period for an additional span of time equal to the limitations period that applied to the plaintiff’s cause of action. Five of the seven justices rejected the lead opinion’s proposed revision of the law requiring process to be immediately and continually reissued until service is made in order to toll the applicable period of limitations. Consequently, the pre-Witherspoon Pennsylvania Supreme Court rulings recognizing the equivalent period doctrine continue to apply.

In Parr v. Roman, 822 A.2d 78 (Pa. Super. 2003), the Pennsylvania Superior Court ruled that the trial court erred in granting judgment on the pleadings based on Justice Zappala’s opinion in Witherspoon. The court stated that five justices rejected the “immediately and continually standard” proposed in Justice Zappala’s opinion. Id. at 79. The court, therefore, remanded the case to the trial court to determine whether the plaintiff made a good-faith effort to notify defendant of the lawsuit as interpreted in Farinacci. Id. at 80.

Subsequent Superior Court opinions have cited Parr for the proposition that Witherspoon did not change the law of Pennsylvania and that the good-faith effort analysis annunciated in Lamp v. Heyman and its progeny is still good law. See Sardo v. Smith, 851 A.2d 168, 170 (Pa. Super. 2004), and Ramsey v. Pierre, 822 A.2d 85, 91 (Pa. Super. 2003) (“Witherspoon serves only to re-validate the present requirement of a good-faith effort to effect service and Lamp’s continued precedential value”).

Defendant contends that the present case is controlled by Miller v. Klink, 871 A.2d 331 (Pa. Commw. 2005). However, in footnote 8, the Commonwealth Court recognized that the “immediately and continually” standard was rejected by five justices. Thus, the issue which the Commonwealth Court was addressing is whether the trial court abused its discretion in finding that plaintiff’s “single attempt to serve Klink did not constitute a good-faith effort.” Id. at 335.

For these reasons, I enter the following order of court:

ORDER

On May 14,2007, it is hereby ordered that the motion for judgment on the pleadings of Barry Tunic is denied.

      . Nancy Tunic died prior to the institution of this suit. The motion for judgment on the pleadings is filed only by Barry Tunic.


text:
    Commonwealth v. Hudach

      C.P. of Lawrence County,
    no. 228 of 2006, C.R.

      Diane D. Shaffer, assistant district attorney, for Commonwealth.

      Harry O. Falls, public defender, for defendant.
    February 15, 2007
   MOTTO, P.J.,

Before the court for disposition is the defendant’s motion to suppress evidence contending that the evidence obtained against him was the product of an unlawful stop of the vehicle in which defendant was a passenger, in violation of the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution.

The dispositive issue is whether the stop of the vehicle in which the defendant was a passenger by police was based on reasonable suspicion that criminal activity was afoot.

On December 17, 2005, Pennsylvania State Police Trooper Tyler was on routine patrol in the area of Meadow Lane. Meadow Lane is a dead-end street on which are located approximately 15 houses. At the end of that street is a drive known as Tebay Lane, which leads to a home occupied by an elderly woman. The area is dark, unlit and wooded. There are no residences on Tebay Lane other than the residence of the elderly woman.

At approximately 7:05 p.m. Trooper Tyler noticed a red Grand Am parked at the end of Meadow Lane facing south, the opposite direction from which Trooper Tyler was approaching. The trooper also noticed that there were several individuals in the vehicle. As Trooper Tyler approached the vehicle in his police cruiser, the headlights of the vehicle became activated, and the vehicle then traveled east on Tebay Lane towards the residence of the elderly woman. At that point in time, Trooper Tyler effectuated a stop of the vehicle by flashing his red lights. Trooper Tyler testified the purpose of the stop was to find out the intentions of the persons in the vehicle.

Trooper Tyler walked to the stopped vehicle, whereupon he noticed the smell of marijuana and observed three individuals in the vehicle. He ordered the individuals out of the vehicle one at a time and patted them down. The reason for the pat down was out of concern for his safety given that he was alone in a dark, rural, wooded area. The defendant was located on the passenger side of the vehicle. When Trooper Tyler ordered the defendant out of the vehicle, he noticed defendant’s hands were near the floorboards of the vehicle. When defendant was questioned as to why he had his hands down near the floorboard, he indicated that his pant leg had gotten caught on the seat. When the defendant exited the vehicle, the trooper noticed a large green marijuana pipe, approximately 15 inches long, in the area where the defendant’s hands had been, near the floorboards under his seat. Trooper Tyler seized the marijuana pipe. After the defendant exited the vehicle Trooper Tyler did a pat down search of the defendant and located a hypodermic needle on his person. Trooper Tyler asked if the defendant had a medical use for the hypodennic needle, and the defendant responded that he did not, that he just carried one. The defendant was arrested and charged with two counts of possession of drug paraphernalia.

An analysis of the legality of the stop and subsequent search and seizure begins with a determination of the type of encounter that took place between Trooper Tyler and the defendant. Case law has consistently identified three types of encounters between police officers and private citizens: (1) amere encounter, (2) an investigative detention, and (3) a custodial detention. Commonwealth v. Polo, 563 Pa. 218, 224, 759 A.2d 372, 375 (2000). A mere encounter is the least restrictive and it is simply a request for information by the police officer; thus, this encounter does not need to be supported by any level of suspicion and the citizen has the option to stop the encounter or respond to the questioning. Commonwealth v. Bennett, 827 A.2d 469, 477 (Pa. Super. 2003). An investigative detention requires the person to stop and submit to a period of detention. The investigative detention is more intrusive than a mere encounter and must be justified by a reasonable suspicion that the person is involved in criminal activity. Id. The final type of encounter “is an arrest or ‘custodial detention,’ which must be supported by probable cause that an offense has been or is being committed.” Id.

In determining whether the encounter is a mere encounter or an investigative detention, a court must decide, after looking at all of the circumstances surrounding the interaction between the police officer and the defendant, if a reasonable person would believe that they were free to decline the police officer’s requests and terminate the interaction. Commonwealth v. Reid, 571 Pa. 1, 27, 811 A.2d 530, 545 (2002) (citing United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). There is no rigid formula for determining whether there is an investigative detention or not, but the following factors can be considered: “the nature, length and location of the detention; whether the suspect was transported against his or her will, how far and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions.” Bennett, supra at 478.

A stop of motor vehicle by force is an investigative detention. Commonwealth v. Clinton, 905 A.2d 1026, 1030 (Pa. Super. 2006). Here, Trooper Tyler did in fact conduct an investigative detention. The trooper effectuated a stop by flashing his red lights, thus utilizing his authority as a police officer. A reasonable person under the circumstances would understand that he was being compelled to bring his vehicle to a stop. The passengers of the car were directed to exit the vehicle and were patted down for weapons. In looking at the entire circumstances surrounding the stop and the intrusiveness of the investigation it becomes obvious that Trooper Tyler was not inducing a mere encounter, but was initiating an investigative detention.

Where a police officer decides to stop and briefly detain a person in an investigative detention, the suspect’s expectation of privacy is only minimally infringed upon; therefore, all that is required is that the officer have a reasonable suspicion that criminal activity is afoot. Commonwealth v. Epps, 415 Pa. Super. 231, 233, 608 A.2d 1095, 1096 (1992) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). For reasonable suspicion to exist a police officer must be able to point to specific and articulable facts and reasonable inferences that can be drawn from those facts in light of that officer’s experience. Commonwealth v. Cook, 558 Pa. 50, 57, 735 A.2d 673, 677 (1999).

In a factually similar case, the Superior Court held an officer must observe unusual conduct that leads him to reasonably conclude that criminal activity is afoot. Commonwealth v. Williams, 287 Pa. Super. 19, 28, 429 A.2d 698, 703 (1981). In Williams, an officer saw two cars parallel to each other and a person standing outside of the cars in an abandoned parking lot late at night. The police officer decided to approach the vehicle because of the late hour and a surge in burglaries in that area. He admitted to not seeing anything that would make him suspicious that criminal activity was afoot. When he began to question the people in the cars he found marijuana in the defendant’s purse.

The Williams court reasoned that the officer did not receive any report of criminal activity in the area that evening and there was no conduct on the part of defendant to indicate that criminal activity was afoot. Id. Because the officer observed no activities that could lead him to believe that criminal activity was afoot, the Williams court held that the evidence in the case was rightfully suppressed. Id.

The facts of Williams are very similar to the facts currently before the court. Much like the abandoned parking lot in Williams, Tebay Lane is a quiet road that only leads to one place, the elderly woman’s house at the end of the road. Furthermore, the activities in Williams may have been more suspicious than the activities in this case, because in Williams there was an additional car and a person standing outside of the car. Also, the location of the abandoned parking lot was in an area that had just experienced an increase in burglaries, and the officer observed the parked cars late at night.

Here, the activity that was observed by Trooper Tyler in this case is not the type of activity that was out of the ordinary. The vehicle was parked and later operating on a public road in the early evening. Trooper Tyler stated that his reason for effectuating the stop was to discern the intentions of the persons in the vehicle. He had obvious concern for the safety of the elderly woman who lived at the end of Tebay Lane. However, despite this legitimate concern, a stop cannot be effectuated without facts which support a reasonable suspicion that criminal activity is afoot.

A police officer does not have to allow a crime to occur when the officer has observed unusual or suspicious conduct by a person which leads one to believe criminal action is afoot. Commonwealth v. Galadyna, 248 Pa. Super. 226, 230, 375 A.2d 69, 71 (1977). However, the police officer must be able to point to specific and articulable facts, taken together with rational inferences, which result in a reasonable suspicion that criminal activity is afoot, warranting the intrusion. Id. at 230-31, 375 A.2d at 72. In Galadyna, the police officers were called out to investigate a disturbance at a bar in a high crime area where many citizen band radios had been stolen. While the officers were in route to the bar, they recognized the defendant. After investigating the incident at the bar, the officer observed the defendant’s lawfully parked car and noticed an interior dome light was on. When the police officers approached the car, the officers observed the occupants of the car examining a CB radio. The officers then exited their vehicle and noticed the defendant put the radio under a pile of clothing as if to conceal it. The court in Galadyna held that the seizure did not violate the defendant’s Fourth Amendment rights because he was in a high crime area, at night, and the area was known for having a number of citizen band radio thefts. Id. at 231.

The case at bar is distinguishable from Galadyna. First, the area in Galadyna was a high crime area where many thefts had been reported; however, here there is no evidence that the Meadow Lane area of the stop is known for being a high crime area, or that crimes were reported in that area at about the time of the stop. Also, the defendants in Galadyna were observed by the police officers examining a CB radio while still inside of their vehicle. Here the trooper did not observe any occupant of the vehicle doing anything suspicious prior to the stop.

This case fails to exhibit the specific and articulable facts that are necessary to support an investigative detention. Although the vehicle was being operated on a street with one house in a secluded area, it was nevertheless being lawfully operated upon a public way. A police officer must be aware of facts that would support a reasonable suspicion that criminal activity was afoot before effectuating an investigative detention.

For the foregoing reasons, the court must grant the defendant’s motion to suppress evidence.

ORDER

And now, February 15,2007, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the defendant’s motion to suppress is granted and all the evidence obtained by the police as the result of the stop of the vehicle in which defendant was a passenger is suppressed and shall not be used against defendant in any proceeding in this case.


author: ZULICK, J.,

text:
    Johnson v. Johnson
    C.P. of Monroe County,
    no. 2838 CV 2005.

      Marshall Anders, for plaintiff.

      Kevin A. Hardy, for defendant.
    December 26, 2006
   ZULICK, J.,

This matter is before the court on the parties’ requests for pretrial relief. Howard Johnson (Husband) seeks reimbursement for his costs incurred during Catherine Johnson’s (Wife) recent appeal to Superior Court. Wife requests Husband to continue to maintain her on his health insurance coverage. Both parties have filed briefs addressing those issues following the most recent hearing in this case, on October 23, 2006

The parties were married on June 6, 1989, and separated on March 6, 2005. Husband contended that the parties had entered into a prenuptial agreement before their marriage, which Wife denied. After a hearing, I determined by opinion and order dated May 22, 2006, that the parties did enter into a prenuptial agreement which, inter alia, precluded spousal support. On June 8, Wife appealed. Husband alleged her appeal was premature; the Superior Court agreed and quashed it on August 15, 2006.

Husband then notified Wife of his intention to discontinue her health insurance coverage on his policy. Wife responded with a petition for special relief, seeking to continue her health insurance coverage. At that time, Husband also sought $134.88 in costs plus attorney’s fees from Wife.

DISCUSSION

1. Medical Insurance

Wife concedes she is not entitled to medical insurance coverage at Husband’s expense, and requests instead that I order Husband to continue to provide her medical coverage under his policy. Her proposal is to then reimburse him for premiums related to her coverage. The question raised by Wife’s request is whether medical insurance which she would be able to obtain more inexpensively through Husband’s coverage than on the open market constitutes spousal support under Pennsylvania law or whether it is not because there would be no cost to Husband.

In Asin v. Asin, 456 Pa. Super. 515, 690 A.2d 1229 (1997), our Superior Court dealt with a similar question— extension of health insurance provided by Mrs. Asin’s employer to Mr. Asin at no cost to Mrs. Asin. The Superior Court held that even where provision of medical insurance comes at no cost to the obligor, it still constitutes support. The court noted that medical insurance is addressed under the section of the Domestic Relations Code labeled “Support Matters,” and that “care and maintenance” as well as financial assistance qualify as support under the law. Id. at 521, 690 A.2d at 1232. It further noted that the medical insurance statute cited by Wife, 23 Pa.C.S. §4324, is labeled “Spousal Medical Support” and directly refers to the provision of medical insurance at no cost to the obligor. Id. at 520, 690 A.2d at 1231.

Wife’s reliance on Maher v. Maher, 575 Pa. 181, 835 A.2d 1281 (2003), is misplaced. Maher did not grant courts the authority to order health care coverage regardless of valid and binding prenuptial agreements. Instead, it held that “the application of Rule 1910.16-6(b)(l) to the case sub judice does not impede a trial court’s ability to require a spouse to provide the other spouse with health care coverage provided that such award is made in the context of a spousal relationship as opposed to that of divorced parties.” 575 Pa. at 187, 835 A.2d at 1285. Since Rule 1910.16-6(b)(l) is not at issue in this case, and since the Maher court recognized that medical insurance constitutes spousal support, it provides no foundation for Wife’s position. See id. (“It is clear that 23 Pa.C.S. §4321 does not impose a support liability between ex-spouses. Therefore, procedural Rule 1910.16-6(b)(1) cannot be read to impose upon an ex-husband the duty to support his ex-wife). Maher did not deal with a situation where one spouse was per se disentitled to support, nor did it hold that medical insurance is not support. Consequently, As in continues to control the issue at bar.

2. Costs

Wife does not contest her obligation to compensate Husband for the costs he incurred in litigating her untimely appeal. Instead, she asserts that those costs amount to only $9.28. Husband alleges they amount to $134.88, and reiterates an already-denied request for $460.68 in attorneys’ fees.

It does not appear that Husband introduced a bill of costs into evidence — the bill is not in the case file and the court reporter’s draft of the transcript omits any motion to introduce such a bill.

The appropriate procedure to recover such costs is to file a bill of costs with the prothonotary of this court. See 20A West’s Pa. Prac., Appellate Practice §2741:1 (2007 ed.), citing Pa.R.A.P. 2762(a) and Kellerman v. Frankford Hospital, 133 Pa. Commw. 592, 577 A.2d 232 (1990). After costs are taxed by the prothonotary, this court will have jurisdiction over any appeal from the prothonotary’s order. Proper procedure requires a filing with the prothonotary at this time. Husband is directed to file a bill of costs with the prothonotary and to serve Wife with a copy of the bill. Husband’s request for attorneys’ fees is denied.

ORDER

And now, December 26, 2006, it is ordered that:

(1) Catherine Johnson’s motion for special relief to be provided with health insurance is denied.

(2) Husband is directed to file a bill of costs related to Wife’s appeal to Superior Court, as allowed by Pa.R.A.R 2762(a), with the prothonotary.