author: GRINE, J,

text:
    Clark v. King

      C.P of Centre County,
    no. 2004-2392.

      Sean M. Clark, pro se.

      Terry J. Williams and Stacy Parks Miller, for defendants.
    December 5, 2005
   GRINE, J,

Presently before this court is the motion for summary judgment of plaintiff Sean M. Clark against defendants Police Chief Thomas King and the State College Police Department. Also before the court is the motion for summary judgment of defendants against plaintiff. A hearing was held on the matter on October 26, 2005. Plaintiff initiated this action against defendants by filing a complaint on or about May 28,2004. Defendants filed an answer to plaintiff’s amended complaint. Pleadings in the case are closed, and discovery has not been undertaken.

In his complaint, plaintiff alleges that defendants violated the Right to Know Act by charging a $ 10 fee for a copy of a motor vehicle accident report. Specifically, plaintiff alleges that on or about March 22,2004, plaintiff was involved in a minor traffic accident in the Borough of State College, Centre County, Pennsylvania. The State College Police Department was summoned to the scene and recorded the incident as accident report no. 3204-4354. On or about March 23, 2004, plaintiff inspected the report at the State College Police Department and requested a copy. Plaintiff was informed by the police department that he could obtain a copy of the report by complying with 75 Pa.C.S. §3751. Plaintiff refused to follow that procedure, specifically objecting to the $10 fee requested by the State College Police Department and filed the instant declaratory judgment complaint.

Plaintiff maintains, pursuant to the Right to Know Act, 65 P.S. §66.1, that accident reports are public records and that access to and duplication of said reports must occur in compliance with the provisions of the Act. Defendants maintain that the Right to Know Act does not control plaintiff’s request for a copy of the motor vehicle accident report, asserting that such reports are not public records as defined by the Act. Specifically, defendants contend that access to motor vehicle reports is governed by 75 Pa.C.S. §3751, more specific, previously-enacted legislation. Both plaintiff and defendants seek summary judgment, asserting no genuine issue of material fact.

Pursuant to Pennsylvania Rule of Civil Procedure 1035.2, “[ajfter the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law: (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert reports[.]” Pa.R.C.P. 1035.2.

The purpose of this rule is to eliminate cases prior to trial where a party cannot make out a claim or a defense after relevant discovery has been completed. See Miller v. Sacred Heart Hospital, 753 A.2d 829, 833 (Pa. Super. 2000). Further, under subparagraph (1) of this rule, summary judgment is proper where the record shows that the material facts are not in dispute and, therefore, there is no issue to be submitted to a jury. See Note to Pa.R.C.P. 1035.2.

In order to proceed on his amended complaint for declaratory judgment to determine his rights under the Right to Know Act, plaintiff must first establish that his request for the accident report is governed by the Right to Know Act, 65 P.S. §66.1 et seq. Specifically, plaintiff must prove that the police investigatory report of the traffic accident is considered a public record.

In support of his argument, plaintiff relies upon the case of City of Philadelphia v. Ruczynski, 24 D.&C.2d 478 (1961). There, plaintiff maintains, the Philadelphia Court of Common Pleas held that accident reports are considered to be public records. This court finds plaintiff’s argument in error. The Philadelphia Court of Common Pleas found that that case involved the right of the city to refuse a person permission to make copies of reports of the Accident Investigation Division of the local police department. See City of Philadelphia v. Ruczynski, 24 D.&C.2d 478, 479 (1961). Specifically, the court found that “the real question [before the court] is whether or not ATP reports are public records which may be copied, but, rather, it is the right of the city to ‘adopt and enforce reasonable rules governing the making of... extracts, copies, photographs, or photostats.’ ” Id. at 481. The court ultimately concluded that, “in the absence of promulgated rules and regulations with respect to the manner in which AID reports are to be in spected and copied, the department of records has no legal right to make ad hoc, and perhaps variable, determinations and limitations under which AID reports may be inspected and copied.” City of Philadelphia v. Ruczynski, 24 D.&C.2d 478, 481 (1961). (emphasis added)

Since the holding in Ruczynski, however, the Pennsylvania Legislature has enacted very specific regulations governing the preparation, inspection, and copying process of police department investigatory reports. Enacted in 1977, 75 Pa.C.S. §3751 provides, in pertinent part:

“(a) General rule. — Every police department that investigates a vehicle accident for which a report must be made as required in this sub-chapter and prepares a written report as a result of an investigation either at the time and at the scene of the accident or thereafter by interviewing the participants or witnesses shall, within 15 days of the accident, forward an initial written report of the accident to the department. If the initial report is not complete, a supplemental report shall be submitted at a later date.
“(b) Furnishing copies of report.—
“(1) Police departments shall, upon request, furnish a certified copy of the full report of the police investigation of any vehicle accident to any person involved in the accident, his attorney or insurer ...[.]
“(2) [T]he cost of furnishing a copy of a report under this subsection shall not exceed $15.” 75 Pa.C.S. §§3751(a) and (b)(l)(2).

Additionally, in Inkpen v. Roberts, 862 A.2d 700 (Pa. Commw. 2004), the Allegheny Court of Common Pleas determined that where there is specific prior-enacted legislation dealing with the treatment of a document, including the rules for copying said documentation, the Right to Know Act does not apply, and the more specific, prior-enacted legislation controls. See id. at 706. Specifically, “[statutes are never presumed to make any innovation in the rules or principles of the common law or prior existing law beyond what is expressly declared in their provisions.” Inkpen v. Roberts, 862 A.2d 700, 706 (Pa. Commw. 2004). (citation omitted)

A review of case law history in surrounding Commonwealth courts reveals that police accident reports are not public reports. See Amro v. Office of Attorney General, 783 A.2d 897, 901 (Pa. Commw. 2001) (holding that the investigation exception to the Right to Know Act applies to completed and ongoing investigations undertaken by an agency in the performance of its official duties) (emphasis added); Commonwealth v. Mines, 680 A.2d 1227 (Pa. Commw. 1996) (citations omitted) (holding that information relating to police investigations and consisting of statements, affidavits, warrants, various reports, composite sketches, and photographs gathered during investigations are not within definition of “public records,” and, therefore, disclosure is not mandatory under the Right to Know Act; citing Sullivan v. City of Pittsburgh, Department of Public Safety, 127 Pa. Commw. 339, 561 A.2d 863 (1989) (citation omitted) (holding that records of police investigations are not “public records” within the meaning of the Right to Know Act).

Following state regulations and case law, and interpreting the facts as provided by both plaintiff and the defendants, this court finds that defendants fully complied with the procedures set forth in 75 Pa.C.S. §3751 when handling plaintiff’s request for a copy of the accident report in which he was involved. Further, this court holds that, pursuant to the Commonwealth’s prior enaction of 75 Pa.C.S. §3751, the Right to Know Act does not govern plaintiff’s request for a copy of accident report no. 3204-4354.

ORDER

And now, December 5, 2005, after a hearing on the matter and upon consideration of the motions for summary judgment filed by both parties and the supporting brief filed by defendants, it is hereby ordered and decreed that there is no genuine issue of material fact, and defendants’ motion for summary judgment is granted. Plaintiff’s motion for summary judgment is, therefore, denied.

It is further ordered, plaintiff’s complaint is dismissed, with prejudice.


source: Caselaw Access Project

author: NICKLEACH, P.J.,

license: Public Domain

text:
    Woods v. Woods

      C.P. of Armstrong County,
    no. 2003-1302-CIVIL.

      Robert Woods, pro se.

      Thomas B. Anderson, for defendant Alle-Kiski Medical Center.

      Elizabeth M. Yanell, for defendants Woods and Bowser.
    September 2, 2005
   NICKLEACH, P.J.,

Before the court for disposition are plaintiff’s pro se petitions for relief from the judgments of non pros entered in favor of Michelle Woods, Richard Bowser and Alle-Kiski Medical Center, formerly known as Allegheny Valley Hospital. Said judgments were entered pursuant to Pa.R.C.R 1042.6 for plaintiff’s failure to timely file certificates of merit with respect to those three defendants. Plaintiff is presently incarcerated in a state correctional facility in Cresson, Pennsylvania, from which he is conducting this lawsuit pro se.

PROCEDURAL POSTURE AND FACTS

This action was commenced by the filing of a complaint on October 14, 2003, against Woods, Bowser, Timothy Keener and the Hospital. At the time, plaintiff was represented by counsel. The complaint consisted of five counts. Count I, for invasion of privacy, was directed to Woods, plaintiff’s ex-wife, and Bowser, Wood’s alleged “paramour.” It averred that on or about March 1998, Woods, who was still plaintiff’s wife at the time and was then employed as a registered nurse at the Hospital, asked Bowser, a hospital security guard, to obtain plaintiff’s confidential medical/psychiatric records from the Hospital records department without plaintiff’s knowledge or consent. Complaint, ¶¶14-15. It further alleged that Bowser obtained plaintiff’s records, Woods read them, and Bowser then returned the records to the Hospital records department. M at ¶¶ 15 -19. Plaintiff alleged that defendants went outside the normal, established procedure for securing medical records, and knew at all times that they were not authorized to have the records in their possession or to examine them. Id. at ¶¶20-22. Plaintiff further alleged that Woods examined the records to find out the extent and nature of plaintiff’s mental problems and the treatment he was receiving for them, for the purpose of psychologically disarming and manipulating the plaintiff. Id. at ¶¶ 16-18.

Count II, for conspiracy, alleged that Woods and Bowser had conspired to secure and examine plaintiff’s psychiatric medical records, and did in fact secure them in violation of his right to privacy. Id. at ¶¶24-31. It again alleged that Woods and Bowser had planned a way to secure the records of the plaintiff without authorization and outside the normal procedure of the Hospital, knowing that they were circumventing the law and plaintiff’s right to privacy. Id. at ¶¶26-30.

Count III, for invasion of privacy, was addressed to Woods and Keener, another alleged paramour of Woods. It averred that on or about August 2001, after plaintiff had been released from the Hospital, Woods and Keener came into possession of plaintiff’s psychiatric records without authorization, examined them, and used the information to try to induce plaintiff to have a breakdown. Id. at ¶¶32-40.

Count IV, for conspiracy, also was directed to Woods and Keener. It alleged that Woods and Keener conspired to invade plaintiff’s privacy by obtaining his psychiatric records, that through these records they were able to learn the extent of plaintiff’s illness and how he was being treated, and that Woods used this information to try to cause him to have a breakdown. Id. at ¶¶41 -48. It further alleged that Woods and Keener had planned a way to secure the records of the plaintiff without authorization and outside the normal procedure of the Hospital, knowing that to secure the records they would be violating plaintiff’s privacy and the law because they were not authorized to look at, examine, copy or possess these records. Id. at ¶¶42,43, 45.

Count V, for negligence, was addressed solely to the Hospital. It alleged that at all times complained of, Woods and Bowser were acting within the scope of their employment and as agents of the Hospital. Id. at ¶¶49-52. It charged that Woods and Bowser were able to procure plaintiff’s records because the Hospital had negligently allowed Bowser to have access to the records department. Id. at ¶53. It further alleged that the Hospital was negligent in not having the records locked up to prevent unauthorized examination and copying of them, and that Bowser and Woods should not have been able to access plaintiff’s records without authorization. Id. at ¶¶54-55. Finally, it averred that the hospital was vicariously liable for Woods’ and Bowser’s actions. Id. at ¶56.

The Hospital responded to the original complaint by filing an answer and new matter, while Woods, Bowser and Keener each filed preliminary objections. By opinion and order dated April 22, 2004, the court overruled Woods’, Bowser’s, and Keener’s preliminary objections. However, on June 3, 2004, plaintiff’s counsel filed an amended complaint without obtaining the consent of the defendants or leave of court. On July 16, 2004, Keener filed preliminary objections to plaintiff’s first amended complaint. On July 23,2004, the Hospital also filed preliminary objections and on July 29, 2004, defendants Woods and Bowser filed preliminary objections as well.

On August 24, 2004, the court granted plaintiff’s attorney’s request that he be permitted to withdraw as counsel of record. Subsequently, on September 13,2004, plaintiff filed a pro se motion for leave to file another amended complaint. In plaintiff’s motion, he alleged, inter alia, that his former counsel had been remiss by not filing certificates of merit. On September 27, 2004, the court, noting the increasingly tangled procedural state of the case, granted plaintiff’s motion to amend.

On October 14,2004, plaintiff filed a second amended complaint (entitled “amended complaint”). This complaint, which expressly stated that plaintiff was asserting a professional liability claim against the Hospital, Woods and Bowser (second amended complaint, ¶2, ¶3, and ¶5), contained nine counts. Count I, for invasion of privacy, was directed to Woods and Bowser. It essentially reiterated and elaborated on the allegations in the original complaint that Woods and Bowser had obtained his psychiatric records without authorization. Second amended complaint, 10/14/04, ¶¶71-82.

Count II, entitled conspiracy and negligence per se, also was directed to Woods and Bowser. It alleged that Woods and Bowser had conspired to secure plaintiff’s confidential psychiatric medical records in violation of his right to privacy and criminal law. Id. at ¶¶83-92. It further alleged that “it is negligence per se to conspire with another to commit a criminal violation.” Id. at ¶89.

Count III, for invasion of privacy, was directed to Woods and Keener. It essentially reiterated and expanded on the claims made in Count III of the original complaint that Woods and Keener had obtained plaintiff’s medical/psychiatric records without authorization and examined them, intruding upon his seclusion. Id. at ¶¶93-101. Count IV, for conspiracy and negligence per se, claimed that Woods and Keener conspired to invade his privacy and to violate criminal law. Id. at ¶¶ 102-111.

Count V of the second amended complaint, for negligence, was directed to the Hospital. It essentially repeated the negligence allegations contained in the original complaint. Id. at ¶¶112-124. Count VI, for breach of contract, express contract, implied at law contract, and implied in fact contract, was directed to Woods and Bowser as agents of the Hospital. It alleged that the Hospital, and Woods and Bowser as its agents and employees, had violated the contract between Woods and the Hospital to keep his medical information confidential. Id. at ¶¶125-129.

Count VII of the second amended complaint, for conspiracy to commit murder and negligence per se, was directed to Woods and Keener. It alleged that Woods attempted to have plaintiff murdered by Bowser and Keener. Id. at ¶¶130-137. Count VIII, for fraud, was directed to Woods. It consisted of a rambling, disjointed recounting of various allegedly false and untruthful claims, testimony and reports allegedly made or given by Woods at various times. Id. at ¶¶138-146. Count IX, for fraud, was directed to Keener. It alleged various false claims, police reports and testimony made or given by Keener. Id. atffll47-153.

On November 1, 2004, the Hospital filed a praecipe for entry of judgment of non pros pursuant to Pa.R.C.P. 1042.6 because plaintiff had not filed a certificate of merit with respect to the Hospital, or timely requested an extension of time to do so. That same day, judgment of non pros in favor of the Hospital was entered and notice of the entry of the judgment was mailed to plaintiff at the state penitentiary. On November 4, 2004, plaintiff filed a motion to extend the time for filing certificates of merit with respect to the Hospital, Woods and Bowser.

On November 8, 2004, Woods and Bowser filed a praecipe for entry of judgments of non pros in their favor due to plaintiff’s failure to file certificates of merit with respect to them. The judgments were entered by the prothonotary that same day. The docket reflects that notice of the entry of judgments was mailed to plaintiff November 9,2004. However, plaintiff says he never received notice that judgments of non pros had been entered in favor of Woods and Bowser and only learned of them when he received a letter from Woods’ and Bowser’s counsel on January 14, 2005, which stated that the judgments had been entered. (The notice sent to Woods on November 9, 2004, evidently did not state that judgment had been entered in favor of Woods and Bowser, but merely restated the fact that judgment of non pros had been entered in favor of the Hospital.)

By opinion and order dated November 24, 2004, the court denied plaintiff’s motion for an extension of time to file certificates of merit on the basis that plaintiff had failed to file his motion within 60 days of the filing of the original complaint as required by Pa.R.C.P. 1042.3(d). Nonetheless, on December 8, 2004, plaintiff filed certificates of merit directed to Bowser and Woods. Each certificate simply stated: “Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant...Plaintiff did not file any certificate of merit with respect to the Hospital.

On December 20,2004, Keener filed preliminary objections to plaintiff’s second amended complaint. On January 6,2004, plaintiff sua sponte filed a third amended complaint (entitled “second amended complaint”) against Keener, Bowser and Woods. For the first time, plaintiff did not include the Hospital as a named defendant.

On January 28, 2005, plaintiff filed the petition for relief from the judgments of non pros which is the subject of this opinion. Shortly thereafter, Keener filed preliminary objections to plaintiff’s third amended complaint. On February 7, 2005, the court issued a rule to show cause why petitioner was not entitled to the relief he requested in his petition, setting a hearing date on the rule for April 26, 2005. On February 16, 2005, plaintiff sua sponte filed a fourth amended complaint (entitled “third amended complaint”) as to Keener, Bowser and Woods, again omitting the Hospital as a party. The fourth amended complaint contained just four counts. Once again, plaintiff alleged invasions of his privacy and conspiracy to do so in connection with the defendants allegedly obtaining and reading plaintiff’s medical/psychiatric records without his knowledge or consent.

On February 24, 2005, counsel for the Hospital and for Woods and Bowser filed answers to plaintiff’s petition for relief from the non pros judgments. On March 24, 2005, plaintiff filed his response to their answers. The court heard argument on plaintiff’s petition for relief April 26, 2005. Plaintiff was not present due to his incarceration at the state correctional facility in Cresson.

DISCUSSION

Plaintiff’s petition for relief from judgment of non pros is governed by Pa.R.C.P. 3051, which states:

“(a) Relief from a judgment of nonpros shall be sought by petition. All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition.
“(b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that
“(1) the petition is timely filed,
“(2) there is a reasonable explanation for the inactivity or delay, and
“(3) there is a meritorious cause of action.” Pa.R.C.P. 3051.

Because the non presses were entered for failure to file certificates of merit, the court must consider plaintiff’s petition in light of the rules which govern professional liability actions and certificates of merit. Those rules are set forth in Pa.R.C.P. 1042.1 through 1042.8. Pa.R.C.P. 1042.1 states:

“Rule 1042.1. Professional liability actions. Scope. Definition.
“(a) The rules of this chapter govern a civil action in which a professional liability claim is asserted against a licensed professional.
“(b) As used in this chapter, ‘licensedprofessional’ means
“(1) any person who is licensed pursuant to an Act of Assembly as
“(i) a health care provider as defined by section 503 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 RS. §1303.503;
“(Ü) an accountant;
“(iii) an architect;
“(iv) a chiropractor;
“(v) a dentist;
“(vi) an engineer or land surveyor;
“(vii) a nurse;
“(viii) an optometrist;
“(ix) a pharmacist;
“(x) a physical therapist;
“(xi) a psychologist; and “(xii) a veterinarian.
“(2) an attorney at law; and
“(3) any professional described in paragraphs (1) and (2) who is licensed by another state.” Pa.R.C.P. 1041.1. (emphasis added)

Rule 1042.3, entitled “Certificate of Merit,” states:

“(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within 60 days after the filing of the complaint, a certificate of merit signed by the attorney or party that either
“(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
“(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
“(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
“(b) A separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted. ...
“(d) The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed 60 days. The motion to extend the time for filing a certificate ofmerit must be filed on or before the filing date that the plaintiff seeks to extend. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion.” Pa.R.C.P. 1042.3. (emphasis added)

Rule 1042.6, entitled “Entry of Judgment of Non Pros for Failure to File Certification,” states:

“(a) The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate....” Pa.R.C.P. 1042.6. (emphasis added)

As a preliminary matter, the court must ascertain whether plaintiff’s petition for relief was timely filed. The judgments of non pros were entered on November 1, 2004 and November 8, 2004, and the court’s order denying plaintiff’s motion for an extension of time was entered November 24, 2004. Plaintiff filed his petition January 28,2005. Given the fact that pro se plaintiff is a prisoner at a state correctional facility, the court finds that plaintiff acted with reasonable diligence and his petition was timely filed.

The court must next consider whether there is a reasonable explanation for plaintiff’s failure to timely file certificates of merit with respect to the Hospital, Woods, and Bowser. Pa.R.C.P. 3051(b)(2). Plaintiff alleges that he was not required to file certificates of merit with respect to his original complaint and his first amended complaint because neither one raised professional liability claims. See plaintiff’s response to defendant’s answer to petition, pp. 3-4.

When a claim does not sound in professional liability, it should not be non prossed for the failure to file a certificate of merit. See Krauss v. Claar, 879 A.2d 302 (Pa. Super. 2005); Jackson v. Gary L. Sweitzer Enterprises Inc., 67 D.&C.4th 239, 244-45 (2004). Thus, the court must examine the substance of plaintiff’s claims against Woods, Bowser and the Hospital to ascertain whether the claims are professional liability claims which require the filing of certificates of merit.

We will first address plaintiff’s claim against the Hospital. The Hospital is unquestionably a licensed professional entity against which a professional liability claim can be made. See Pa.R.C.P. 1042.1(b)(l)(i). Nonetheless, plaintiff says he did not assert a professional liability claim against the Hospital until he filed his second amended complaint on October 14, 2004. Therefore, plaintiff says, he was not required to file a certificate of merit until then.

Plaintiff further argues that he had 60 days from the date he filed that second amended complaint to file a certificate of merit or in the alternative, a motion to extend the time for filing such a certificate. Plaintiff claims he timely filed his motion for an extension of time within 60 days of the filing of his second amended complaint by filing a motion for an extension of time on November 28, 2004.

The court is not convinced by plaintiff’s arguments concerning the judgment of non pros entered in favor of the Hospital. The court first notes that plaintiff’s last two amended complaints did not include the Hospital as a defendant, although they continued to name Woods, Bowser and Keener. Since plaintiff has himself chosen to drop the Hospital as a party, it is the court’s opinion that plaintiff’s petition for relief from the judgment of non pros with respect to the Hospital is now moot.

Even if plaintiff’s petition for relief were not moot, it would fail on other grounds. The original complaint alleged that the Hospital was negligent in that it had failed to take proper measures to safeguard plaintiff’s confidential psychiatric medical records. See complaint, Count V. This was clearly a claim for corporate liability, a “cause of action for corporate negligence [which] arises from the policies, actions or inaction of the institution itself rather than the specific acts of individual hospital agents.” White v. Behlke, 69 D.&C.4th 353, 362 (2004) (emphasis added) (citing Welsh v. Bulger, 548 Pa. 504, 513, 698 A.2d 581, 585 (1997) and Moser v. Heistand, 545 Pa. 554, 560, 681 A.2d 1322, 1326 (1996)).

“[SJince a corporate liability claim is not based solely on respondeat superior principles and except in cases of obvious negligence, must be supported by expert testimony establishing a deviation from the accepted standard of care, a certificate of merit under Rule 1042.3 (a)(1) is required for a corporate negligence claim.” Id. at 363; see also, Yee v. Roberts, 878 A.2d 906 (Pa. Super. 2005) (where count against a professional dental partnership stated a claim for both direct professional liability and for vicarious liability for negligent acts committed by its employees within the course and scope of their duties, a filing of a certificate of merit was required as to at least some of these allegations; thus, entry of a non pros judgment as to the entire count for failure to file a certificate of merit was proper.).

The court finds that plaintiff’s negligence claim against the Hospital in the original complaint was a corporate liability claim which required the filing of a certificate of merit or a motion for extension of time within 60 days of the date the original complaint was filed on October 14,2003.

As to plaintiff’s argument that the time for filing a certificate of merit began anew each time he filed an amended complaint, this is clearly not the law. The Superior Court has expressly held that a certificate of merit must be filed within 60 days of the filing of the original complaint which alleges professional liability and that subsequent amendments do not restart the 60-day period. O’Hara v. Randall, 879 A.2d 240, 245 (Pa. Super. 2005); Hoover v. Davila, 862 A.2d 591, 594 (Pa. Super. 2004).

Moreover, plaintiff has not offered a reasonable explanation for his failure to file a certificate of merit or a motion for an extension of time with respect to his claims against the Hospital. As the court noted in Helfrick v. UPMC Shadyside Hospital, 65 D.&C.4th 420, 423 (2003) (quoted approvingly by Hoover, 862 A.2d at 595 n.3):

“Plaintiff’s petition does not set forth a reasonable explanation or legitimate excuse for the inactivity (the inactivity being the failure of plaintiff’s counsel to file within the 60-day period a certificate of merit or a motion to extend the time for filing the certificate.). This will be so in almost every case in which a judgment of non pros is entered for failure to file a certificate of merit. The plaintiff who has a reasonable explanation or legitimate excuse for not being able to timely file a certificate of merit may, instead, file a motion to extend the time for filing the certificate on or before the filing date that the plaintiff seeks to extend. . . . Consequently, an explanation for the inactivity requires an explanation as to why the plaintiff did not within the 60-day period file a motion to extend the time for filing the certificate of merit.” Id. (emphasis added)

In his November 2004 motion for an extension of time, plaintiff claimed that he needed to receive certain materials he had sought in discovery before he could produce a certificate of merit with respect to the Hospital. That explanation, proferred nearly two years after the filing of plaintiff’s original complaint, does not pass muster. There is no reason why plaintiff could not have filed a motion for an extension of time within 60 days of filing the original complaint and pled his extenuating circumstances at that time. For all the above reasons, the court finds that judgment of non pros was properly entered against plaintiff with respect to the Hospital and plaintiff’s petition for relief from that judgment is denied.

Next, the court will address plaintiff’s petition for relief from the judgment of non pros entered in favor of Woods. Woods was a registered nurse at the Hospital when she allegedly obtained plaintiff’s psychiatric hospital records without his consent. As such, she is a licensed professional. See Pa.R.C.P. 1042. l(b)(l)(vii). However, plaintiff’s claims against Woods did not arise in the context of a nurse-patient relationship. To the contrary, Woods was not involved in plaintiff’s medical treatment except as plaintiff’s wife. Although Woods’ employment at the Hospital as a nurse may have helped her gain access to plaintiff’s medical records, the fact that she was a licensed professional is largely irrelevant to plaintiff’s claim that she committed the intentional tort of invasion of privacy.

Given that Woods was not acting as plaintiff’s nurse, the claims made against Woods in the original and subsequently filed complaints were not claims for medical malpractice, and plaintiff was not required to file a certificate of merit for Woods. See Krauss, 879 A.2d 302 (plaintiffs were not required to file a certificate of merit with respect to defendant attorney because there was no attorney-client relationship and plaintiffs’ claims of negligent misrepresentation, intentional misrepresentation, promissory estoppel, equitable estoppel and tortious interference with contractual relations were not professional liability claims; therefore, trial court erred when it refused to strike the judgment of non pros for failure to file a certificate of merit).

Moreover, as the Superior Court recently explained:

“Although the basic elements of both ordinary negligence and medical malpractice are the same, medical malpractice has distinguishing charactistics. Medical malpractice is further defined as the ‘unwarranted departure from generally accepted standards of medical practice resulting in injury to a patient, including all liability-producing conduct arising from the rendition of professional medical services. ’ Toogood, 824 A.2d at 1145....
“One of the most distinguishing features of a medical malpractice suit is, in most cases, the need for expert testimony, which may be necessary to elucidate complex medical issues to a jury of laypersons. In other words, ‘[bjecause the negligence of a physician encompasses matters not within the ordinary knowledge and experience of laypersons[,] a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation and the extent of the injury.’ Id.” Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. 2005) (citing Toogood v. Owen J. Rogal D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140 (2003)). (emphasis added)

It is clear that plaintiff’s claims against Woods for invasion of privacy and conspiracy to invade his privacy were not medical malpractice claims. Therefore, no certificate of merit was required to support them.

Was a certificate of merit required because Woods met the definition of a licensed professional under the MCARE definition of health care provider incorporated by reference in Pa.R.C.P. 1042.1 (b)( 1 )(i)? The court thinks not. The MCARE definition, inter alia, defines a health care provider as “a corporation,... licensed... to provide health care or professional medical services asa... hospital,... and an officer, employee or agent of any of them acting in the course and scope of employment. ” 40 P.S. §1303.503. (emphasis added) The pertinent test for whether an employee acted during the course of and within the scope of her employment is as follows:

“[A]n employer is held vicariously liable for the negligent acts of his employee which cause injuries to a third party, provided that such acts were committed during the course of and within the scope of the employment. Fitzgerald v. McCutcheon, 270 Pa. Super. 102, 410 A.2d 1270, 1271 (1979). In certain circumstances, liability of the employer may also extend to intentional or criminal acts committed by the employee. Id. The conduct of an employee is considered ‘within the scope of employment’ for purposes of vicarious liability if: (1) it is of a kind and nature that the employee is employed to perform; (2) it occurs substantially within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to serve the employer; and (4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer. Id., 410 A.2d at 1272 (citing Restatement (Second) of Agency, §228).” Costa v. Roxborough Memorial Hospital, 708 A.2d 490, 493 (Pa. Super. 1998).

Assuming that Woods was generally authorized to look at a hospital patient’s medical records during the course of providing care to that patient, that is not what plaintiff alleges here. To the contrary, plaintiff alleges that his wife obtained and examined plaintiff’s records outside of ordinary channels for purely personal reasons. Clearly, Woods was not acting “during the course of and within the scope of her employment” if, as plaintiff alleges, she knowingly and intentionally obtained his confidential psychiatric records outside ordinary channels and procedures for purely personal reasons. Moreover, Pa.R.C.P. 1042.1 (b)( 1 )(i) by its terms appears to deal with vicarious liability claims, not direct professional liability claims, and thus should not be used to require a certificate of merit as to Woods, particularly where the Hospital is no longer even a party. For all these reasons, the court finds that no certificate of merit was required to be filed with respect to plaintiff’s claims against Woods. Thus, plaintiff has met his burden of providing a reasonable explanation for not filing a certificate of merit.

Finally, the court will address plaintiff’s claims against Bowser. According to the original and subsequent complaints, Bowser was employed as a hospital security guard at the time he allegedly conspired with Woods to invade plaintiff’s privacy by stealing and copying plaintiff’s confidential medical records. Certainly, a security guard would not ordinarily be considered a licensed professional subject to direct professional liability claims. See Pa.R.C.P. 1042.1(b). However, Bowser could be considered a licensed professional under the MCARE definition of health care provider incorporated by reference in Pa.R.CR. 1042.1 (b)( 1 )(i) as an “employee or agent of any of them acting in the course and scope of employment. ” 40 P.S. §1303.503. (emphasis added)

However, using the same analysis employed above with respect to Woods, the court finds that Bowser was not acting in the course and scope of his employment as a hospital security guard when he allegedly obtained and then returned plaintiff’s confidential records for Woods outside normal channels. As with plaintiff’s claims against Woods, the claims plaintiff stated against Bowser in the original complaint and in subsequent complaints did not require the filing of a certificate of merit. Thus, plaintiff has met his burden of proving a reasonable explanation for his failure to file same.

Woods and Bowser protest that plaintiff is bound by his assertions that his second amended complaint sounded in professional liability and that he was required to timely file certificates of merit subsequent to the filing of that complaint. The court does not agree. It would be absurd to demand that plaintiff file certificates of merit that were never required simply because plaintiff was at times operating under the mistaken impression that he needed to do so. Upholding the entry of non pros judgments in such a case would be a gross perversion of the rules of civil procedure governing the necessity for filing certificates of merit and of the policy that underlies those rules.

Finally, although recent decisions dealing with the necessity of filing certificates of merit have not always addressed the final prong of Pa.R.C.P. 3051 regarding the merits of the action, see e.g., Krauss, supra; Jackson, supra, the court finds that arguably the allegations made in plaintiff’s second amended complaint are sufficient to pass muster regarding the final prong of Pa.R.C.P. 3051.

For all the above reasons, the court finds that plaintiff has met the requirements of Pa.R.C.P. 3051 with respect to the non pros judgments entered against him and in favor of Woods and Bowser. Therefore, the court will grant plaintiff’s petition for relief with respect to Woods and Bowser and open the judgments of non pros entered in their favor. However, for the reasons previously stated, the court will deny plaintiff’s petition for relief from the judgment of non pros entered in favor of the Hospital.

An appropriate order will be entered.

ORDER

And now, September 2, 2005, after consideration of plaintiff’s petition for relief from judgment of non pros, the responses thereto, and the record as a whole, it is hereby ordered, adjudged and decreed that:

(1) Plaintiff’s petition for relief from the judgment of non pros entered in favor of Alle-Kiski Medical Center, formerly Allegheny Valley Hospital, is hereby denied.

(2) Plaintiff’s petition for relief from the judgments of non pros entered in favor of Michelle Woods and Richard Bowser is hereby granted. Said judgments will be opened forthwith.

      . MCARE defines a health care provider as “A primary health care center, ... or a person, including a corporation, university or other educational institution licensed or approved by the Commonwealth to provide health care or professional medical services as a ... hospital, . . . and an officer, employee or agent of any of them acting in the course and scope of employment.” 40 P.S. §1303.503. (emphasis added)

      . Count V of the original complaint also alleged that the Hospital was vicariously liable for the actions of Woods and Bowser. It is not clear whether a certificate of merit would have been required with respect to the vicarious liability aspect of the claim. However, because both theories were included in one count, it appears that judgment as to the entire count was proper. See Yee, 878 A.2d at 914. In his later complaints, plaintiff alleged that Woods and Bowser acted outside the scope of their employment, which would presumably defeat a vicarious liability claim. In any event, the issue is now moot.

      . See Jackson, 67 D.&C.4Ü1 at 245 (“The purpose of the certificate of merit requirement is to prevent the filing of baseless professional negligence claims. Reading Rule 1042.6 to require the entry of judgment against the plaintiff on claims unrelated to professional negligence for failure to file a certificate of merit would lead to an absurd result.”).


author: PEREZOUS, J,

text:
    Cruz v. Roberts

      C.P. of Lancaster County,
    nos. CI-04-01947, CI-03-05694.

      I. Steven Levy, Mary E. Dixon and Christopher E. Ballod, for plaintiffs Cruz and Olan.

      CarlH. Delacato Jr., for defendant Herman’s Day Care (CI-03-05694).

      Stephen L. Banko Jr., for defendant Herman’s Day Care (CI-04-01947).

      Stephen W. Cody, for defendant Beiler.
    June 22, 2005
   PEREZOUS, J,

This matter is before the court on the plaintiffs’ motion to consolidate the above-captioned matters. The plaintiffs, Mary Cruz, in her own right and on behalf of her minor daughter Elizabeth Sanchez, and Jessica Olan contend that consolidation of their respective cases is appropriate under Pa.R.C.P. 213. They argue that (1) both actions contain common questions of law and fact, and (2) judicial economy warrants consolidation. Defendants, Dorothy M. Roberts and Harriet A. Herman, individually and t/d/b/a Herman’s Day Care Center and Herman’s Day Care Center, set forth that (1) the two cases are distinct and separate, and (2) consolidation of the cases for trial would be prejudicial. Nevertheless, defendants concede that consolidation of the cases for the purpose of discovery is warranted. For the following reasons, this court refuses to consolidate the two matters for trial. However, consolidation of the matters for the sole purpose of discovery is appropriate.

Both cases arise out of incidents that occurred at defendants’ day care center. In the Cruz matter, the plaintiff avers that her minor daughter was physically and sexually abused by Benuel F. Beiler, an alleged employee of the center, on August 22,2002. In the Olan matter, the plaintiff alleges that she was assaulted on five or more occasions by Mr. Beiler during the summers of 1992 and 1993 while she attended the day care center. There does not appear to be any indication that Ms. Olan informed the defendants or any other person of these assaults prior to the 2002 incident. It was not until Beiler’s arrest was reported in the local newspaper that Ms. Olan came forward to report the alleged misconduct that occurred in 1992/1993.

The defendants deny any prior knowledge of any propensity or inclination on the part of Beiler to molest children prior to any of the alleged assaults. Furthermore, the defendants contend that he was not an employee of the center, but was an independent contractor who merely performed “handy-man” services there. Nevertheless, in both cases, the plaintiffs allege that defendants violated numerous duties owed to them, such as failing to conduct a full and complete background check of their employee, and allowing him to remain in their employ despite knowledge of the harm he posed to children at the center.

The Pennsylvania Rules of Civil Procedure provide:

“In actions pending in a county which involve a common question of law or fact or which arise from the same transaction or occurrence, the court... may order a joint hearing or trial of any matter in issue in the actions, may order the actions consolidated, and may make orders that avoid unnecessary cost or delay.” Pa.R.C.P. 213(a).

Furthermore, “[t]he court, in furtherance of convenience or to avoid prejudice, may . . . order a separate trial of any cause of action, claim, or counterclaim, set-off, or cross-suit, or of any separate issue, or of any number of causes of action, claims, counterclaims, set-offs, cross-suits, or issues.” Pa.R.C.P. 213(b).

Consolidation is allowed in order to avoid “multiple trials and proceedings involving common facts or issues or arising from the same transaction or occurrence.” Pa.R.C.P. 213 Explanatory comment. “The duplication of efforts is a benefit to both the parties and the courts.” Id. Other benefits include “the prevention of inconsistent verdicts ... the elimination of trial delays, speedier litigation, and the reduction of expenses for the parties.” 3 Standard Pa. Practice § 19:17. It is important, however, to weigh these benefits against any possible prejudice to the parties.

The decision to consolidate cases is permissive and entirely within the discretion of the trial court. Pa.R.C.P. 213 Explanatory comment; Corbett v. Weisband, 380 Pa. Super. 292, 316, 551 A.2d 1059, 1071 (1989). Commentators have noted that the possibility of prejudice is a key factor to evaluate in deciding whether to consolidate cases for trial purposes:

“Despite a court’s broad discretion to order that separate actions involving a common question of law or fact be tried together, such an order should not be entered where prejudice to the rights of any party would result. .. . The consolidation of actions into a single action is improper where such consolidation prejudices the rights of one or more of the parties.... Where the facts of one case might prejudice the jury against the defendants in a related case . . . consolidation should not occur, albeit the necessary commonality of law or fact questions otherwise abounds.” 3 Standard Pa. Practice 2d §19:5. (citations omitted)

Similarly, courts should exercise their discretion cautiously where jury confusion could result from joining divergent factual scenarios. 3 Standard Pa. Practice 2d §19:6; see Motorists Mutual Insurance Co. v. Miller, 41 D.&C.3d 630, 631 (1986).

Furthermore, the Supreme Court of Pennsylvania has stated that it is appropriate to refuse consolidation of separate actions where the jury may be influenced by sympathy for a plaintiff to the prejudice of the defendants. Balla v. Sladek, 381 Pa. 85, 90, 112 A.2d 156, 159 (1955). In other cases, “[t]he court may refuse consolidation where the common question of law or fact is not of sufficient significance in the various actions to justify their being combined or where the consolidation might cause prejudice or result in over-complication of issues.” Limbert v. Sealview Plastics Inc., 17 D.&C.2d 785, 786 (1959) (quoting 2 Anderson Pa. Civ. Prac. §69). With these standards in mind, this court is opposed to consolidating the cases for trial.

Although consolidation for the purpose of discovery would reduce expenses for the parties and streamline the litigation of the matters, consolidation for trial would be inappropriate. No common questions of law and/or fact warrant consolidation of the cases. At issue in the cases is not the assault of one girl, but two. In addition, these assaults occurred approximately a decade apart and would undeniably involve differing factual scenarios. Furthermore, the questions regarding the defendants’ awareness of Beiler’s propensity to assault children relate to two separate and distinct events and time periods.

Consolidation would further result in prejudice to the defendants and poses a risk of confusing the jury. A single jury, hearing both matters, might be confused by the unusual and significant chronological separation between the two alleged incidents. For instance, it appears that Ms. Olan never informed anyone of the 1992/1993 assaults prior to the 2002 incident. By trying the two matters together, the jury might wrongly conclude that the defendants knew, or at least should have known, of that prior assault. Upon hearing that a young girl was previously assaulted by the same man who then assaulted another young girl, a jury could be improperly swayed and / or confused by such information. More likely, the defendants will be prejudiced by such evidence, regardless of how this court instructs the jury to view the evidence. Once a jury hears of the 1992/1993 assault, knowledge of that incident might be imputed onto all of the defendants, thereby prejudicing the defendants in relation to the 2002 incident. Therefore, this court cannot consolidate the matters for trial.

Accordingly, the court enters the following:

ORDER

And now, June 25,2005, upon consideration of the plaintiffs’ motion to consolidate the cases of Cruz v. Dorothy M. Roberts, no. CI-04-01947 and Olan v. Dorothy M. Roberts, no. CI-03-05694, and the responses and supporting papers filed by the parties, it is hereby ordered that the motion is denied, in part, and granted, in part:

(1) The motion is granted for the purposes of discovery only. It is further ordered the lead case is designated Cruz v. Dorothy Roberts, and all deadlines and dates for that case are applicable in the consolidated matters.

(2) The motion is denied as it relates to the consolidation of the cases for trial. The matters shall be tried before two separate juries in order to avoid prejudice to the defendants and confusion on the part of the jury.


author: BONAVITACOLA, S.J.,

text:
    McGill v. Goldstein

      Cheryl B. Wolf, for plaintiff.

      Brian A. Wall Jr., for defendant.
    June 20, 2005
   BONAVITACOLA, S.J.,

INTRODUCTION

This arbitration appeal presents an apparent issue of first impression under the provisions of a recently-adopted rule of civil procedure: In an appeal from arbitration in which the plaintiff has stipulated to limit damages to $15,000, as permitted by Rule 1311.1(a), may the plaintiff introduce medical records at trial without witness authentication, as authorized by Rule 1311.1 (b), over a defense objection, if the medical provider who created those records appears pursuant to a defense subpoena, but refuses to testify on Fifth Amendment grounds?

I overruled the objection, and allowed admission of the records of Richard J. Walinsky, a chiropractor, but instructed the jury (and allowed the defendant’s counsel to argue to the jury) that it could properly consider Dr. Walinsky’s refusal to testify in evaluating the weight to be given his records.

I also denied defense motions to strike the report of another medical witness, David L. Mattingly D.O. (which was also admitted pursuant to Rule 1311.1), on the basis that it was premised on facts “directly contradicted” by the plaintiff’s own testimony, and to enter a compulsoiy nonsuit against the plaintiff for lack of evidence. The defendant has taken issue with these decisions.

The defendant has also objected to payment to Dr. Walinsky of a $350 witness fee, which I determined and imposed, pursuant to Rule 1311.1 (d), for his appearance, because Dr. Walinsky, when called, refused to testify, and because Dr. Walinsky was to testify as a fact witness, and not as an expert.

After carefully considering the defendant’s objections, I concluded that my decisions at trial were correct, and thus denied post-trial relief. This appeal followed.

BACKGROUND

This is otherwise a completely ordinary automobile accident case. On September 12,2001, at approximately 1 or 2 in the afternoon, plaintiff Horace McGill, a medallion taxicab driver, was operating his taxicab, with three passengers, westbound on Grant Avenue. As he crossed the Roosevelt Boulevard, with the traffic signal in his favor, his cab was struck on the left side by a vehicle operated by defendant Goldstein, who admitted causing the accident.

Mr. McGill testified that, after the accident, he suffered the usual assortment of aches and pains, in his left shoulder, his left hip and his mid-back, that he underwent chiropractic treatment with Richard J. Walinsky, a chiropractor, for a period of about five months, and that, at the end of that time, he considered himself fully recovered.

According to Mr. McGill, he missed only two days’ work as a result of the accident, but for a period of two or three months he was unable to drive his customary nine- to 10-hour schedule, five or six days a week, and instead worked only four or five hours a day, perhaps two days a week.

He also said that, during that time, he was unable to do all of his normal household chores, or to assist his mother-in-law with hers (as had been his habit), and that he was unable to play pickup basketball with his friends for a period of several months.

DISCUSSION

Pennsylvania Rule of Civil Procedure 1311.1 reads, in pertinent part, as follows:

“Rule 1311.1 Procedure on appeal. Admission of documentary evidence
“(a) The plaintiff may stipulate to $ 15,000 as the maximum amount of damages recoverable upon the trial of an appeal from the award of arbitrators. The stipulation shall be filed and served upon every other party at least 30 days from the date the appeal is first listed for trial.
“(b) If the plaintiff has filed and served a stipulation as provided in subdivision (a), any party may offer at trial the documents set forth in Rule 1305(b)(1). The documents offered shall be admitted if the party offering them has provided written notice to every other party of the intention to offer the documents at trial at least 20 days from the date the appeal is first listed for trial. The written notice shall be accompanied by a copy of each document to be offered.
“(c) A document which is received into evidence under subdivision (b) may be used for only those purposes which would be permissible if the person whose testimony is waived by this rule were present and testifying at the hearing. The court shall disregard any portion of a document so received that would be inadmissible if the person whose testimony is waived by this rule were testifying in person.
“(d) Any other party may subpoena the person whose testimony is waived by this rule to appear at or serve upon a party a notice to attend the trial and any adverse party may cross-examine the person as to the document as if the person were a witness for the party offering the document. The party issuing the subpoena shall pay the reasonable fees and costs of the person subpoenaed to testify, including a reasonable expert witness fee if applicable. ...”

The rule, by its terms, is unequivocal: if a plaintiff files the required stipulation, and timely serves notice with copies of the documents to be offered, then the documents are to be admitted. The drafters of the rule perhaps did not envision a situation where the author of such documents would fail (or refuse) to testify if subpoenaed.

At first blush, Dr. Walinsky’s refusal to testify appears to create significant prejudice to the defendant — the medical records allegedly created by Dr. Walinsky are admitted into evidence, but the defendant is unable to cross-examine him on their contents, or the circumstances under which they were created. In reality, though, the defendant’s objection is not to the authenticity of the records, but instead to their accuracy and their truthfulness.

The defendant did not contend that the records were created from whole cloth; rather, the defense contends that Dr. Walinsky’s records were inherently untrustworthy because the doctor was — at the same time he was treating Mr. McGill — allegedly participating in a large-scale insurance billing fraud scheme. According to the defendant, it is unknown whether or not the veracity of his diagnoses and/or the accuracy of his treatment histories would have been affected by his alleged criminal activity, and for that reason, the defense argues, the records should have been excluded.

I believe, however, that the question of the veracity of Dr. Walinsky’s records was adequately addressed in my instructions to the jury:

“Under our court rules, we are permitted to bring medical records in without bringing a doctor in and you have heard the diagnosis, which is the doctor’s professional belief as to what he found when he examined the plaintiff, and the prognosis is, what is that doctor’s outlook for that patient’s future condition.
“The doctor was called to the witness stand to be cross-examined, which is an opportunity for the defense to question the doctor on the veracity and the accuracy of the information contained in the medical record. The doctor, for reasons of his own, chose to claim the protection of the Fifth Amendment, and refuse [d] to answer any questions. You may take that into account in deciding whether or not to accept the report concerning the diagnosis and the prognosis into your consideration.” (N.T., January 4,2005, pp. 130-31.) (emphasis added)

It appears that the juiy understood and followed my instructions; its $5,000 verdict seems eminently reasonable to compensate the plaintiff for the injuries that he described, his testimony, standing alone, was sufficient— if accepted as true — to support an award in that amount, and the jury was completely entitled to believe that testimony if it so chose.

My decision to allow Dr. Walinsky’s records into evidence was thus correct, as was my decision to deny the defendant’s motion for compulsory nonsuit. For the same reason, even if the admission of Dr. Mattingly’s report was error, it was harmless error because the jury award was amply supported by the plaintiff’s own testimony.

Finally, I believe that it was reasonable under the circumstances to impose a $350 expert witness fee on the defendant for having called Dr. Walinsky to testify.

According to counsel, Dr. Walinsky’s “normal” witness fee at the time was $1,200. In light of the fact that he did not answer any questions substantively, and given that his testimony thus took only a very short time, a significant reduction from his normal fee was appropriate.

It is difficult to accept counsel’s assertions that Dr. Walinsky’s testimony would have been confined exclusively to factual matters. Virtually any question concerning the plaintiff’s treatment that began with the word “why” would have nudged Dr. Walinsky over the dividing line between fact witness and expert. In the absence of a witness fee, are the answers to those questions inadmissible? Is a court expected to monitor the questioning of such a witness, and to impose a witness fee only when that magical line is crossed?

Fundamentally, Dr. Walinsky’s treatment records were admissible under Rule 1311.1 only because he was an expert. I therefore ruled that the defendant was liable for payment of a witness fee, in an appropriately reduced amount, as the defense derived a significant tactical benefit from having Dr. Walinsky appear at trial and repeatedly take the Fifth Amendment in front of the jury.

CONCLUSION

In sum, I do not believe that any trial errors occurred in this matter. To the extent that my decision to allow Dr. Mattingly’s report into evidence was erroneous, the error was harmless, as a good and sufficient basis existed to support the jury’s award.

For the above reasons, I respectfully suggest that my decision in this matter be affirmed.

      . A second chiropractor, Eileen Nelson Means D.C., did not appear, but the parties stipulated that, if she had been called, she would similarly have invoked the Fifth Amendment in response to any questions asked of her.

      . No claim was made for lost wages in this case.

      . The apparent reason for Dr. Walinsky’s refusal to testify is that, on August 20, 2004, the Commonwealth filed a 140-count criminal complaint against him, alleging numerous instances of falsified billing of insurance claims and related offenses, which are alleged to have occurred during the period of time when the plaintiff was under his care.

      . Mr. McGill’s testimony on recross-examination likely enhanced his credibility with the jury. In response to a question about his motivation to file this lawsuit, he said, “I drive a taxi. I have insurance. I have to pay for my insurance. Every time I claim an injury, my insurance increases. So I have no reason at all to lie about my injury.” (N.T., January 4, 2005, p. 63.) I see no reason to disturb the jury’s verdict here.

      .1 do not mean to suggest that counsel was being mendacious, but only that her view of the likely scope of the proposed cross-examination was unrealistic.

      . It should be noted at this point that the defendant did not have to pay Dr. Means an expert witness fee, because the parties waived her appearance, agreeing that she would have taken the Fifth Amendment in response to all questions, had she appeared. In any event, Rule 1311.1, by its terms, requires payment of a fee to an expert witness for appearing, not for testifying. The fact that Dr. Walinsky refused to testify substantively is irrelevant; his appearance alone triggers the obligation to pay an expert fee.


author:
NEWMAN, Member,
     O’CONNOR, Member,

text:
    Office of Disciplinary Counsel v. Papas

      Disciplinary Board Docket nos. 12 D.B. 2003, 80 D.B. 2003.
    April 11, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

NEWMAN, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

OnFebruary 4,2003, Office ofDisciplinary Counsel filed a petition for discipline at no. 12 D.B. 2003 against respondent, William Emanuel Papas. Office ofDisciplinary Counsel filed a petition for discipline against respondent at no. 80 D.B. 2003 on June 5, 2003. A motion to consolidate petitions was granted by order of the Disciplinary Board dated August 22,2003. These petitions charged respondent with representing clients while on inactive status. Respondent did not file an answer to petitions.

A disciplinary hearing was held on November 14, 2003, before Hearing Committee 4.05 comprised of Chair Sheila M. Ford, Esquire, and Members Marion Laffey Ferry, Esquire and James T. Mamen, Esquire. Respondent appeared pro se.

The Hearing Committee filed a report on October 12, 2004, finding that respondent violated the Rules of Professional Conduct and Rules of Disciplinary Enforcement as charged in the petitions, and recommending that respondent be suspended for one year and one day.

This matter was adjudicated by the Disciplinary Board at the meeting of January 19,2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, Office ofDisciplinary Counsel, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, William Emanuel Papas, was bom in 1953 and was admitted to practice law in the Commonwealth of Pennsylvania in 1979. Respondent’s attorney registration address is 165 Aria Drive, Pittsburgh PA 15220. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has a prior history of discipline. He was suspended from the practice of law from April 20, 1988 to February 10, 1989, as a result of his conviction of possession of cocaine and marijuana and possession of drug paraphernalia.

(4) By order of the Pennsylvania Supreme Court dated March 17,2000, with an effective date of April 18,2000, respondent was transferred to inactive status as a result of his noncompliance with Continuing Legal Education requirements.

Turban Matter

(5) While on active status respondent was retained in March of 1999 to represent Jack L. Turban in an appeal to the Court of Common Pleas of Butler County.

(6) Respondent was paid $250 for his representation.

(7) On March 31, 1999, respondent filed a notice of appeal. On April 21,1999, respondent filed a civil complaint on behalf of his client.

(8) Respondent was listed as counsel of record for Mr. Turban with his office listed as 165 Aria Drive, Pittsburgh PA 15220.

(9) On May 10,1999, Attorney Ronald W. Coyer, counsel for defendant, filed a praecipe to strike the appeal pursuant to Pennsylvania District Justice Rule of Civil Procedure 1006.

(10) The proof of service attached to Attorney Coyer’s pleading reflects the copy was mailed to respondent at his listed address.

(11) Respondent did not file any responsive pleading to the praecipe to strike.

(12) On May 10, 1999, the Butler County Prothonotary struck the appeal filed by respondent on behalf of his client.

(13) Respondent did not inform his client that the appeal had been stricken, nor did he take any action to have the appeal reinstated.

(14) Although the appeal had been stricken and the case closed, respondent, in response to a request by Mr. Turban regarding the status of the appeal, informed Mr. Turban that an additional $50 was needed to schedule a hearing before a Butler County Court of Common Pleas Board of Arbitrators.

(15) Mr. Turban paid the additional $50 to respondent.

(16) Thereafter respondent did not communicate with Mr. Turban in any manner regarding the status of the case, despite Mr. Turban’s attempts to contact him.

(17) Respondent’s effective date of transfer to inactive status was April 18,2000. By letter dated March 17, 2000, from the secretary of the Disciplinary Board, respondent was provided with a copy of the Supreme Court’s March 17,2000 order, and informed of his rights and obligations pursuant to the Rules of Disciplinary Enforcement and the Disciplinary Board Rules.

(18) The March 17, 2000 letter was sent by certified mail, return receipt requested.

(19) The green postal return receipt card bears a signature accepting the certified mailing and a delivery date of March 20, 2000 to respondent’s address at 165 Aria Drive in Pittsburgh.

(20) At no time did respondent inform Mr. Turban of his transfer to inactive status.

(21) Respondent has not been reinstated to active status in Pennsylvania.

(22) By letter to respondent dated March 13, 2001, Attorney Paul Yessler, on behalf of Mr. Turban, requested that respondent contact him regarding Mr. Turban’s case; that respondent refund Mr. Turban’s money; and that respondent return Mr. Turban’s file to him.

(23) Respondent did not contact Attorney Yessler, nor did he refund Mr. Turban’s money or return Mr. Turban’s file.

Koutsouflakis Matter

(24)On August 15, 2000, respondent accepted $540 from George Koutsouflakis to represent him in a civil name change matter.

(25) On respondent’s letterhead dated August 15,2000, respondent provided Mr. Koutsouflakis with a signed fee agreement reflecting the $540 fee for representation.

(26) On August 17, 2000, respondent faxed Mr. Koutsouflakis a proposed petition to change name for his review and signature.

(27) Throughout the summer, fall and winter of 2000, respondent did not communicate with Mr. Koutsouflakis regarding his matter.

(28) At no time did respondent inform Mr. Koutsouflakis that he was on inactive status and could not represent him.

(29) In April 2001 respondent communicated with his client and stated that he would fax him documents for his review.

(30) Mr. Koutsouflakis never received a fax from respondent.

(31) In June 2001 respondent left a message for Mr. Koutsouflakis indicating that he had filed a petition for name change in the Allegheny County Court of Common Pleas and that he would communicate with Mr. Koutsouflakis once he received a hearing date.

(32) Respondent faxed a copy of the pleading bearing his signature.

(33) Mr. Koutsouflakis by certified letter dated June 28, 2001, informed respondent that he had personally reviewed the Allegheny County Court of Common Pleas records and determined that no pleading had been filed and demanded that respondent refund the money he had previously paid to respondent as he no longer wanted respondent to represent him.

(34)Mr. Koutsouflakis received full reimbursement from respondent.

Wolfram Matter

(35) At the time of his transfer to inactive status, respondent was counsel of record for Steven Wolfram in a domestic matter in the Allegheny County Court of Common Pleas.

(36) Respondent did not inform Mr. Wolfram, the court or opposing counsel that he had been transferred to inactive status.

(37) On April 18, 2000, respondent and Mr. Wolfram attended a support conference on the issue of alimony pendente lite.

(38) The April 18, 2000 support conference was that same day continued to August 1,2000, and the continuance order was signed by respondent as counsel for Mr. Wolfram.

(39) Following the April 18,2000 conference, respondent was paid an additional sum of $300 by Mr. Wolfram which was to be divided in equal parts for the support conference and for the presentation of a motion before the Family Division motions judge.

(40) On May 25, 2000, respondent appeared before Judge Lawrence W. Kaplan and presented a motion on behalf of his client requesting an evidentiary hearing.

(41) The pleading presented to Judge Kaplan contained a verification signed by respondent that the statements contained in the motion were true and correct.

(42) That same pleading averred that respondent was counsel of record for Mr. Wolfram.

(43) On August 1,2000, respondent again represented Mr. Wolfram at a support conference/hearing before a Domestic Relations Officer at which time respondent signed an order of court as counsel for Mr. Wolfram.

Fischer Matter

(44) At the time of his transfer to inactive status, respondent was listed as counsel of record for George Fischer III, in a domestic relations matter filed in the Allegheny County Court of Common Pleas.

(45) Respondent did not notify his client, the court or opposing counsel of his transfer to inactive status on April 18, 2000.

(46) Following his transfer to inactive status, respondent on October 18, 2001, witnessed and signed a property settlement agreement executed by the Fischers wherein it was written that Mr. Fischer had been advised of his legal rights and obligations by his respective counsel.

(47) Respondent executed the documents as William E. Papas, Esq., then filed or caused to be filed the same with the Allegheny County Court of Common Pleas on November 1, 2001.

(48) Respondent, also on November 1, 2001, filed or caused to be filed with the Allegheny County Court of Common Pleas, waivers of notice and affidavits of consent wherein respondent is listed as counsel of record for George Fischer.

Konkiel/Jones Matter

In April 2001, respondent met with Gregory Jones and Lisa Konkiel regarding their uncontested divorce, and agreed to represent the couple.

(50) Respondent was paid $200.

(51) At the time of the meeting, respondent did not inform either Ms. Konkiel or Mr. Jones of his inability to practice law as a result of his inactive status.

(52) Following the April 2001 meeting, respondent, on May 7, 2001, filed a complaint in divorce in the Allegheny County Court of Common Pleas.

(53) The divorce complaint cover sheet lists respondent as counsel of record and bears his signature as counsel for plaintiff, Gregory P. Jones.

(54) In February 2002, respondent again met with Mr. Jones and Ms. Konkiel, at which time he accepted an additional $200.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(2) R.P.C. 1.4(a) — A lawyer shall keep a client informed of the status of a matter and promptly comply with reasonable requests for information.

(3) R.P.C. 1.4(b) — A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding representation.

(4) R.P.C. 1.16(d) — Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, such as surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

(5) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(6) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

(7) R.P.C. 5.5(b) — A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.

(8) Pa.R.D.E. 217(a) — A formerly admitted attorney shall promptly notify, by registered or certified mail, return receipt requested, all clients being represented in pending matters, other than litigation or administrative proceedings, of the disbarment, suspension or transfer to inactive status and the consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension or transfer to inactive status and shall advise clients to seek legal advice elsewhere.

(9) Pa.R.D.E. 217(b) — A formerly admitted attorney shall promptly notify, by registered or certified mail, return receipt requested, all clients who are involved in pending litigation or administrative proceedings, and the attorney or attorneys for each adverse party in such matter or proceedings, of the inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension or transfer to inactive status.

(10) Pa.R.D.E. 217(d) — Orders imposing transfer to inactive status shall be effective 30 days after entry. The formerly admitted attorney, after entry of the transfer to inactive status order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature.

IV. DISCUSSION

This matter is before the board on consolidated petitions for discipline charging respondent with professional misconduct resulting from his representation of clients while on inactive status. Respondent stipulated to the facts of the matter and did not object to any of the exhibits offered by petitioner into evidence. Respondent did not present any evidence with regard to petitioner’s case in chief and admitted that he violated the Rules of Professional Conduct and Rules of Disciplinary Enforcement.

While still on active status in March 1999, respondent engaged in various acts of client neglect, consisting of failing to communicate with his client Jack Turban, failing to diligently represent him, failing to refund unearned fees and engaging in conduct involving dishonesty and misrepresentation, all of which prejudiced Mr. Turban. During his representation of Mr. Turban, respondent was transferred to inactive status for failing to fulfill his Continuing Legal Education requirements. Despite receiving the order of the Supreme Court notifying him of his inactive status, respondent continued to practice law after April 16, 2000, the effective date of the order. Not only did respondent fail to notify his existing client that he had been transferred to inactive status, he continued to violate the order by accepting new cases, filing pleadings, appearing in court and representing clients.

Respondent’s misconduct warrants the imposition of public discipline. He ignored his responsibilities to his clients and the court by continuing to practice law in defiance of a court order. He accepted money from unsuspecting clients whom he was not permitted to represent. Respondent accepted full responsibility for his misconduct and offered in mitigation the fact that his wife died in December 2002 and he was left with the sole responsibility for two minor children. Obviously these are extreme personal problems, although the board notes that the misconduct in question occurred prior to these unfortunate circumstances. There are aggravating factors that exist in this matter. Paramount is respondent’s prior suspension from April 20, 1988 to February 10, 1989, for a criminal conviction involving cocaine. The board finds troubling the fact that 10 years after he was reinstated to practice, respondent was engaging in professional misconduct by ignoring the Supreme Court’s March 17, 2000 order.

Sanctions imposed by the Supreme Court for practicing while on inactive status have ranged from a six-month suspension to the unusually severe sanction of disbarment. See In re Anonymous No. 123 D.B. 1996, 41 D.&C.4th 290 (1998); In re Anonymous Nos. 78 D.B. 1984 and 38 D.B. 1985, 39 D.&C.3d 131 (1986). More recently, unauthorized practice of law cases have resulted in suspensions of one year and one day. Office of Disciplinary Counsel v. Rodney, No. 118 D.B. 2000, 743 Disciplinary Docket no. 3 (Pa. June 13, 2002), resulted in a suspension of one year and one day for respondent after he practiced law in two cases after his transfer to inactive status. In the matter of Office of Disciplinary Counsel v. Harrigan, No. 123 D.B. 2000, 782 Disciplinary Docket no. 3 (Pa. Nov. 25, 2002), the Supreme Court suspended Mr. Harrigan for one year and one day for representing a client after he was notified he had been transferred to inactive status. Mr. Harrigan had two prior informal admonitions, one of which was for practicing while on inactive status. Mr. Harrigan presented evidence of a psychiatric problem which was accepted as mitigation. A lawyer who practiced law for 12 years while on inactive status was suspended for one year and one day. Office of Disciplinary Counsel v. Forman, No. 70 D.B. 2001, 799 Disciplinary Docket no. 3 (Pa. Jan. 31, 2003).

Review of the record and the case law persuades the board that a suspension of one year and one day is appropriate. This sanction will require respondent to petition for reinstatement and prove his fitness and character before he is allowed to practice law in Pennsylvania.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, William Emanuel Papas, be suspended from the practice of law for a period of one year and one day.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Vice-Chair Rudnitsky and Board Member O’Connor dissented and would recommend a two-year suspension.

DISSENTING OPINION

O’CONNOR, Member,

April 11, 2005 — I have reviewed the report and recommendations of the majority in the above matter, and while agreeing with the findings, I respectfully dissent from the recommendation of only a year and a day suspension.

Mr. Papas had previously been suspended for about one year in the late 1980s. It should be presumed that when a lawyer serves a suspension and is readmitted to practice, he will be more attentive to the Rules of Professional Conduct. In Mr. Papas’ case, that does not seem to be true.

Mr. Papas engaged in misconduct including client neglect, dishonesty and misrepresentation, any one of which should have earned him a suspension. In addition, on at least four occasions after being aware that his license to practice was suspended for failure to complete his Continuing Legal Education, Mr. Papas continued to represent clients, accept fees, appear in court, sign legal documents and hold himself out as a licensed practitioner, something which he knew was not true.

A review of the record reflects that Mr. Papas made no effort to comply with his obligations under Pa.R.D.E. 217(a)(b) and (d). He had and used his office letterhead, maintained an office, and apparently went on as if the rules did not apply to him.

The rules required Mr. Papas to notify his clients of his suspension. He failed to do this, ignoring his obligation and showing his continued disregard for the law.

Historically, the offense of practicing while under suspension is enough to merit the “year and a day” but when the additional charges of client neglect, dishonesty and misrepresentation are added it would seem as though this case merits additional time.

Had this been Mr. Papas’ first brush with the disciplinary system I may have been prevailed to vote with the majority but it was not. He was flat out ignoring the rules and he should have known better.

I would respectfully recommend a more proper resolution would be a two-year suspension.

Board Chair Rudnitsky joins in this dissent.

ORDER

And now, September 12,2005, upon consideration of the report and recommendations of the Disciplinary Board and dissenting opinion dated April 11, 2005, it is hereby ordered that William Emanuel Papas be and he is suspended from the bar of this Commonwealth for a period of two years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.