source: Caselaw Access Project

author: KLEINFELTER, P.J.,

license: Public Domain

text:
    Pollak v. Holencik
    C.P. of Dauphin County,
    no. 4557 S 1997.

      Clark DeVere, for plaintiff.

      Timothy J. McMahon, for defendant.

      August 9, 2000
   KLEINFELTER, P.J.,

Before the court is the defendant, Mark R Holencik D.O.’s, motion for post-trial relief. The motion follows a jury trial conducted January 24-27, 2000, and a verdict of $511,443 in favor of plaintiff, Corrina B. Poliak.

Prior to trial, Poliak’s claims against Dr. Holencik were distilled to three counts: (1) professional negligence; (2) battery (lack of informed consent); and (3) negligent misrepresentation. Also prior to trial, Poliak agreed to dismiss Dickinson College as a party.

The verdict form (with special interrogatories) separately addressed the three counts. On Count 1, the jury concluded that Dr. Holencik was negligent and that his negligence was a substantial factor in bringing about Poliak’s harm. On Count 2, the jury found that Dr. Holencik failed to obtain the informed consent of Poliak prior to surgery and that her lack of informed consent was a substantial factor in her decision to undergo surgery. On Count 3, the jury found that Dr. Holencik negligently misrepresented the period of Poliak’s recovery and her ability to play lacrosse in the spring of 1996. The jury concluded that such misrepresentation was a substantial factor in inducing Poliak to undergo surgery in October of 1995.

As far as damages, the jury was given a general instruction that, if liability were established on Counts 1 or 2, they could award: past medical expenses, pain and suffering, loss of life’s pleasures and disfigurement. If liability were found as to Count 3 only, the jury was limited to the category of loss of life’s pleasures only.

As noted, the jury found liability on all counts and apportioned damages as follows:

Past medical expenses: $ 11,443
Pain and suffering: 150,000
Loss of life’s pleasures: 75,000
Disfigurement:_275,000
Total: $511,443

Dr. Holencik’s motion for post-trial relief contains a motion for new trial and a motion for remittitur. The motion for new trial raises five issues: (1) the court erred in failing to charge the jury on the alleged contributory negligence of Poliak; (2) the court erred in allowing the jury to consider the count of informed consent; (3) the court erred in charging the jury on the issue of a medical battery; (4) the court erred in allowing the count of negligent misrepresentation to go to the jury; and (5) the verdict on all counts was against the weight of the evidence. The motion for remittitur claims that the total sum awarded was excessive, but is not specific as to any category of damages.

Before reaching the issues, a summary of the facts is in order. Poliak’s difficulties began with a knee injury suffered while playing high school lacrosse in 1993 at the Albany Academy in Albany, New York. After evaluation by a physician, Poliak was advised of alternative methods of treating her injury: surgery or application of a leg brace while participating in lacrosse. Poliak chose the latter.

Poliak’s proficiency in lacrosse prompted her to try out for a position on the women’s lacrosse team at Dickinson College in the fall of 1995. As a prerequisite, college policy required Poliak to undergo a physical examination by the team physician, Dr. Holencik. During the examination, Poliak advised Dr. Holencik of her preexisting injury. Upon further evaluation, Dr. Holencik determined that her knee was extremely unstable and denied her authorization to play lacrosse until the instability was corrected. Dr. Holencik recommended surgery, which he offered to perform.

Prior to surgery, Poliak and her father consulted Dr. Holencik to discuss the benefits of the procedure as well as its inherent risks. Both Poliak and her father testified at trial that during these discussions, Dr. Holencik made certain representations. According to Poliak: “I was told that if I got the surgery done in October,... I would, in fact, be able to play lacrosse in the spring, which was my number one concern.” (N.T. vol. I, pp. 51,14-17.) Poliak was also questioned about any pre-surgical discussions with Dr. Holencik.

“Mr. DeVere: During any of these face-to-face meetings or telephone calls, did Dr. Holencik ever discuss with you the nature of the surgery he was going to perform, that it would not be a widely used procedure called an extra-articular?

“Ms. Poliak: No.

“Mr. DeVere: Did he ever discuss with you prior to surgery that there was an alternative procedure called the intra-articular?

“Ms. Poliak: Never.

“Mr. DeVere: Did he ever mention to you anything about placing screws or hardware into your knee during the surgery?

“Ms. Poliak: No.

“Mr. DeVere: Did he talk to you about the scar[r]ing?

“Ms. Poliak: No.” (N.T. vol. I, p. 52, 8-20.)

Steven Poliak, plaintiff’s father, also recalled a conversation with Dr. Holencik during which the prospect of a delayed surgery was discussed: “Dr. Holencik impressed upon us that if you have this surgery done now, she can play [lacrosse] in the spring.” (N.T. vol. II, p. 15, 20-21.)

On October 17, 1995, Dr. Holencik performed an extra-articular reconstruction of Poliak’s injured knee, which included the insertion of certain screws and washers to support the joint. Poliak testified that she attended three post-operation visits per Dr. Holencik’s instructions as well as undergoing rehabilitation sessions with physical trainers at Dickinson College. However, instead of fully recovering and playing lacrosse, Poliak experienced pain, swelling and a large scar. Had she known of the extent of the potential scarring, Poliak testified that she would not have subjected herself to the surgery.

Poliak explained that the pain and swelling of her knee was continuous over the balance of the school year. This condition prompted Poliak to consult Dr. Craig Westin of Utah, another orthopedist. Dr. Westin performed additional surgery by opening the scar, removing the screws and washers, and rebuilding certain critical ligaments. This operation was more successful than the first, but Poliak was still left with the unattractive scar on her right leg. Since Poliak experienced pain and swelling, was unable to play lacrosse, and was left with a large scar on her right leg, she filed suit with this court on October 7, 1997.

Poliak presented Dr. Westin as an expert witness. Dr. Westin testified that the procedure performed by Dr. Holencik, an extra-articular repair, was outdated, “not an operation done in young athletic individuals” (N.T. vol. I, p. 188, 1-4), and should not have included the installation of screws and washers. According to Dr. Westin, had Dr. Holencik performed an intra-articular repair, the correct procedure, Poliak’s scarring would not have been as severe. Dr. Westin concluded his testimony by stating, within a reasonable degree of medical certainty, that Dr. Holencik deviated from the accepted standard of medical care by doing an extra-articular repair rather than an intra-articular repair and that this deviation caused Poliak’s injuries.

Dr. Holencik presented his own testimony. Although he agreed that Poliak was present at each of the three post-surgery appointments, Dr. Holencik testified that Poliak made no complaints about swelling or pain in her knee. After the initial three appointments, Dr. Holencik stated that Poliak never came to his office again, despite the coaxing of a Dickinson trainer. Had Ms. Poliak reported pain, Dr. Holencik testified that he would have removed the screws and washers from her knee. Essentially, Dr. Holencik claimed that Poliak’s failure to attend follow-up appointments and her failure to properly follow rehabilitation instructions caused or at least contributed to her discomfort. In addition, Dr. Holencik defended his use of the extra-articular procedure. He also contended that Poliak was informed of the possibility of scarring, and that her own genetics caused her disfigurement. He denied promising that she could play lacrosse in the spring following surgery.

A. MOTION FOR NEW TRIAL

I. Failure To Charge Jury On Contributory/Comparative Negligence

We begin with Dr. Holencik’s claim that the court erred by not providing a contributory/comparative negligence instruction to the jury. Dr. Holencik contends that Poliak’s alleged failure to follow through with postoperative care constituted comparative/contributory negligence on her part and that the jury should have been instructed accordingly. Dr. Holencik submitted points for charge and jury interrogatories on this issue. On the afternoon of the day before the jury was to be instructed, the court engaged in a dialogue with counsel over the application of contributory negligence principles to this case. The court took the matter under advisement until the next morning.

The following morning after off-the-record discussions with counsel, during which the court advised that it would not charge on contributory negligence, the court inquired:

“The court: We’re going to move rapidly ahead with that (closings and charge) at this time — well, before I do that, those proposed instructions, do you see any problems with them?

“Mr. McMahon (defense counsel): With the verdict? The special interrogatories?

“The court: Yes.

“Mr. McMahon: No, sir. These are acceptable to the defendant.

“Mr. DeVere: They’re acceptable to the plaintiff, also.” (N.T. vol. II, p. 166, 13-22.)

Except for a brief reference to the fact that Poliak did not return to Dr. Holencik with a complaint about pain from the screws used in her surgery, defense counsel did not mention “contributory negligence” in his address to the jury.

At the conclusion of its instructions, the court invited counsel to take exception to the charge in any respect, or request additional points. Mr. McMahon responded: “Your charge is acceptable to the defendant, as well, your honor.” (N.T. vol. II, p. 217, 24-25.)

It is well established that, in order for an objectionable instruction to be preserved for review in post-trial motions, the objecting party must raise his or her objection during the trial. Brown v. Philadelphia Tribune Co., 447 Pa. Super. 52, 58, 668 A.2d 159,160 (1995); Shaffer v. Pullman Trailmobile, 368 Pa. Super. 199, 203, 533 A.2d 1023, 1024-25 (1987); Thompson v. Motch and Merryweather Machinery Co., 358 Pa. Super. 149, 156, 516 A.2d 1226, 1229-30 (1986), appeal denied, 515 Pa. 584, 527 A.2d 544 (1987), appeal denied, Petition of Thompson, 515 Pa. 584,527 A.2d 544 (1987). Failure to object to the court’s jury instructions at trial precludes raising such an objection in post-trial motions. “[Cjounsel will not be permitted to ‘sit idly by, tak[ing] his [or her] chances with instructions given at trial, and then, having lost the case, seek a new trial and second opportunity on the ground that the charge was prejudicial to his client.’ ” Thompson, supra, quoting Reardon v. Meehan, 424 Pa. 460, 468, 227 A.2d 667, 672 (1967). (citations omitted) (alterations in original)

“A motion for a new trial should be granted where the reading of the jury charge against the background of the evidence reveals that the jury charge might have been prejudicial to the complaining party. ... A refusal to give a proper instruction request by a party is grounds for a new trial only if the substance of that instruction was not otherwise covered by the trial court’s general charge.... An error in a jury charge is sufficient ground for a new trial if the charge, taken as a whole, is inadequate, unclear, or has the tendency to mislead or confuse ... a material issue. . . .” Salameh v. Spossey, 731 A.2d 649, 659 (Pa. Commw. 1999). (citations omitted)

Here, Dr. Holencik raised no objection to either the court’s instructions or the jury interrogatories — neither of which included any mention of contributory negligence. Accordingly, Dr. Holencik’s first claim of error must fail on the basis of waiver.

We continue this discussion, however, on its merits; not only to make the record complete, but also to address the cases cited by Dr. Holencik. What the court had advised counsel off-the-record on the morning of jury instruction was that it considered the failure of Poliak to follow up with Dr. Holencik to be an issue of causation regarding the damages she claimed and not a matter of contributory negligence going to liability. “Legal cause,” as that term is understood, enters a personal injury claim at two levels. First, of course, is the issue of negligence itself. Did the negligence of the defendant, or the plaintiff, or some combination of the two cause the injury? This is where the concept of contributory negligence of the plaintiff becomes a factor. Notwithstanding any negligence of the defendant, however, any damages claimed by the plaintiff must have been legally caused by the plaintiff’s negligence — regardless of any apportionment for contributory negligence.

In this case, we advised counsel prior to charging the jury that we felt, to the extent Poliak’s delay in seeking treatment contributed to her harm, such delay was in mitigation of the amount of damages claimed and had nothing to do with the primary issue of Dr. Holencik’s negligence. The jury was instructed at some length on this point. (N.T. vol II., pp. 214-15.) Indeed, we have no way of knowing whether Poliak’s claim for pain and suffering was in fact diminished by the jury for failure to seek prompt treatment. Thus, Dr. Holencik’s claim of error fails both procedurally and substantively.

II. Informed Consent

Dr. Holencik’s second argument is that the issue of lack of informed consent should not have been presented to the jury since Dr. Westin’s testimony in that regard fell short of that required under Pennsylvania law. Specifically, Dr. Holencik contends that Poliak was required to opine on the risks of the chosen treatment, its alternatives, and to establish a causal nexus between the alleged lack of informed consent and the decision to undergo surgery or any injury resulting from the surgery.

We note the law concerning informed consent.

“[Wjhere a patient is mentally and physically able to consult about his [or her] condition, in the absence of an emergency, the consent of the patient is ‘a prerequisite to a surgical operation by his [or her] physician’ and an operation without the patient’s consent is a technical assault. Smith v. Yohe, 412 Pa. 94, 106, 194 A.2d 167, 174 (1963) . . . [F]or consent to be effective it must be informed and knowledgeable... . (citation omitted)

“In order for consent to be considered informed it must be shown that the patient was advised of ‘those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment.’ Sagala v. Tavares, 367 Pa. Super. 573, 578, 533 A.2d 165, 167 (1987), alloc. denied, 518 Pa. 626, 541 A.2d 1138 (1988).” Moure v. Raeuchle, 529 Pa. 394, 404-405, 604 A.2d 1003, 1008 (1992).

Counsel for Poliak elicited the following testimony from Dr. Westin:

“Mr. DeVere: And another issue, Doctor, and my final question on direct examination is the claim o[f] informed consent. What information in your opinion should be discussed with a patient before a surgical procedure like Corrina had? And Doctor, can you tell us within a reasonable degree of medical certainty what type of information should be conveyed to a person before undergoing knee surgery?

“Dr. Westin: You need to know about the likely risks and the serious risks, and those would be — such as serious risks, infection, blood clot, the fact that the ligament would tear again, which is a risk of about 5 percent. The fact that this is from an intra-articular repair. There is— the risks of metal — any foreign material, whether it be metal or dissolvable, which we’re using now, anything that’s going to be implanted on a permanent basis needs to be told, the rehabilitation, the time required, and the anesthetic risks and related to what anesthesia is being used.

“Mr. DeVere: And scar[r]ing would be something you share with the patient?

“Dr. Westin: I think the location of the scars should be discussed, where the external scars would be should be discussed. That would be considered a standard of care.

“Mr. DeVere: And have all your opinions given to the jury been within a reasonable degree of medical certainty?

“Dr. Westin: Yes, they have.” (N.T. vol. I, pp. 189-90.)

We agree with Poliak that Dr. Westin provided expert testimony to the jury regarding the materiality of the risk of choosing to undergo the surgical procedure. In addition, we are satisfied that Dr. Westin’s testimony was sufficient to permit the jury to determine whether or not Poliak appreciated such materiality of risk in undergoing surgery so as to constitute informed consent.

Notwithstanding the foregoing, Dr. Holencik argues further that expert testimony was necessary to show that the surgery at issue caused the claimed injury. Our research reveals some seemingly conflicting authority on the issue.

The Supreme Court of Pennsylvania has stated:

“We have held that a physician or surgeon who fails to advise a patient of material facts, risks, complications, and alternatives to surgery which a reasonable [person] in the patient’s position would have considered significant in deciding whether to have the operation is liable for damages which ensue, and the patient need not prove that a causal relationship exists between the physician’s or surgeon’s failure to disclose information and the patient’s consent to undergo surgery. ” Sinclair by Sinclair v. Block, 534 Pa. 563, 568-69, 633 A.2d 1137, 1140 (1993) quoting Gouse v. Cassel, 532 Pa. 197, 202, 615 A.2d 331, 333 (1992). (emphasis added) (alteration in original)

Our Superior Court has further explained:

“This court has also recognized that a plaintiff need not prove by expert testimony that the surgery caused an injury. Rowinsky v. Sperling, 452 Pa. Super. 215, 223-25, 681 A.2d 785, 790 (1996), appeal denied, 547 Pa. 738, 690 A.2d 237 (1997). Recovery on the theory of informed consent is permitted regardless of causation because it is the conduct of the unauthorized procedure that constitutes the tort. Moure, 529 Pa. at 405, 604 A.2d at 1008.” Boutte v. Seitchik, 719 A.2d 319, 323 (Pa. Super. 1998).

In support of his claim that causation in a medical battery case must be proven through expert testimony, Dr. Holencik cites Montgomery v. Bazaz-Sehgal, 742 A.2d 1125 (Pa. Super. 1999) and Maliszewski v. Rendon, 374 Pa. Super. 109, 542 A.2d 170 (1988). Both of these cases hold that expert testimony is required to establish a causal connection between the lack of informed consent and a claim of injury and suffering where the connection is not obvious. For example, in Maliszewski, we find this language:

“[I]t was essential for recovery to show that:

“as a result of the recommended treatment, the patient actually suffers an injury the risk of which was undisclosed, or the patient actually suffers an injury that would not have occurred had the patient opted for one of the undisclosed methods of treatment.” Maliszewski, 374 Pa. Super, at 114, 542 A.2d at 172. (citations omitted)

And in the Montgomery case, the court required expert testimony unless the causal connection was “obvious, direct and proximate.” Montgomery, 742 A.2d at 1133.

We leave to our appellate courts the reconciliation of any conflict between Montgomery/Maliszewski and Sinclair/Boutte. On the record established in this case we find that the jury could find causation both from Dr. Westin’s testimony and the obvious results portrayed by Poliak herself. The injuries here complained of were not abstract. The prolonged pain and suffering were causally related to the placement of the screws according to Dr. Westin. (See e.g., N.T. vol. I, pp. 166,186.) The same may be said for the disfigurement component of the damages. Dr. Westin made it clear that the size of the scar was related to the extra-articular procedure as opposed to the intra-articular method. (N.T. vol. I, p. 185). Moreover, that these results bore a causal nexus to the procedure performed seemed “obvious.”

Finally, we note, as we did in addressing the contributory negligence issue, that Dr. Holencik took no exception to the jury interrogatory on informed consent or to our instruction on this subject. Any claim of error may be deemed waived on this issue.

TIT. Medical Battery

We continue our discussion with the medical battery issue. Dr. Holencik argues that a medical battery instruction was erroneous because Poliak consented to her knee surgery. We disagree. As discussed supra, the mere fact that a patient consents to a surgical procedure does not in itself prove that the consent was informed as required. Of course Poliak consented to the surgery and knew that Dr. Holencik was to operate on her knee. What was factually in dispute, and what the jury found, however, is that Poliak’s consent was not informed, in that she was not fully aware of the surgery’s material risks. Accordingly, when it is found that a physician did not obtain a patient’s informed consent prior to conducting surgery, that physician has committed medical battery. Moure, supra; Sagala, supra; Foflygen v. R. Zemel, M.D. (PC), 420 Pa. Super. 18, 33, 615 A.2d 1345, 1353 (1992). Thus, the instruction was proper.

IV. Negligent Misrepresentation

We now draw our attention to Dr. Holencik’s claim that the count alleging negligent misrepresentation should not have been presented to the jury. Poliak based this count on Dr. Holencik’s statements to her and her father that she would be able to play lacrosse during the spring following her surgery.

“Negligent misrepresentation requires proof of: (1) a misrepresentation of a material fact; (2) made under circumstances which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and; (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.” Bortz v. Noon, 556 Pa. 489, 499, 729 A.2d 555, 561 (1999).

In his brief, Dr. Holencik contends that a claim of negligent misrepresentation requires a physical injury as well as expert testimony to establish the elements of the tort. We reject this contention.

First, we have found no authority suggesting that expert testimony is required to support a claim for negligent misrepresentation. In general, expert testimony is only required when the subject matter is so specialized as to be beyond the knowledge of the average layperson. Pa.R.E. 702. If the subject matter is readily comprehensible and the average person should not need interpretation of the evidence in order to render the appropriate disposition, expert testimony is not required. Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995).

While it is true that expert evidence is required to support a negligence claim founded in professional malpractice, Welsh v. Bulger, 548 Pa. 504, 513-14, 698 A.2d 581, 585 (1997), an allegation of negligent misrepresentation is not the same. A medical malpractice action involves complex causation issues regarding whether or not the plaintiff’s injuries were the consequence of the defendant’s deviation from a standard of care. In the negligent misrepresentation action at bar, we are convinced that the issues involved are within the understanding of the average juror. Surely, there are negligent misrepresentation cases where the factual complexities may require expert interpretation. Dr. Holencik has not, however, demonstrated to us a universal requirement of expert testimony in all cases alleging negligent misrepresentation.

We also reject Dr. Holencik’s argument that Poliak must allege physical harm in her negligent misrepresentation claim. Our jury instruction was founded in the Restatement (Second) of Torts:

“(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results

“(a) to the other, or

“(b) to such third persons as the actor should expect to be put in peril by the action taken.

“(2) Such negligence may consist of failure to exercise reasonable care

“(a) in ascertaining the accuracy of the information, or

“(b) in the manner in which it is communicated.” Restatement (Second) of Torts §311.

In his motion, Dr. Holencik argues that Poliak has not alleged any physical harm as is required under section 311, in that her inability to play lacrosse does not equate to physical injury.

Here, Dr. Holencik confuses physical harm with its resultant damages. Poliak’s physical harm occurred when she experienced pain and swelling from what the jury deemed to be an outdated surgical procedure. Her inability to play lacrosse, or her loss of life’s pleasures, on the other hand, occurred as a result. One simply cannot consider the corresponding product of an injury to be that which was caused by the initial misrepresentation. Dr. Holencik’s representation that Poliak would be able to play lacrosse persuaded her to undergo surgery. The surgery caused her physical injury, which, in turn, prevented her from playing lacrosse. Accordingly, Poliak indeed suffered physical harm as required by section 311, making the negligent misrepresentation instruction proper.

B. MOTION FOR REMITTITUR/VERDICT SUPPORTED BY WEIGHT OF THE EVIDENCE

Finally, we address jointly Dr. Holencik’s motion for remittitur and weight of the evidence claims, since both embrace the same issues.

“A party is entitled to a new trial based on the weight of the evidence

“only where the verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail____[The appellant] is not entitled to a new trial where the evidence is conflicting and the [finder of fact] could have decided either way.” Petrasovits v. Kleiner, 719 A.2d 799, 803 (Pa. Super. 1998). (citations omitted) (alterations in original)

Whether a new trial is granted due to an excessive verdict is discretionary upon the trial court. Id. at 806.

“In determining whether a verdict is excessive a court may consider the following factors: (1) the severity of the injury; (2) whether the injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony; (3) whether the injury is permanent; (4) whether the plaintiff can continue with his or her employment; (5) the size of the out-of-pocket expenses; (6) [t]he amount of compensation demanded in the original complaint. However, as each case is unique, the court should apply only those factors which are relevant to that particular case before determining if that verdict is excessive.” Id. (alteration in original)

Our Superior Court also provides guidance for remittitur:

“Judicial reduction of a jury award for compensatory damages is appropriate only when the award is plainly excessive and exorbitant in a particular case. . . . The trial court may grant a request for remittitur only when a verdict that is supported by the evidence suggests that the jury was guided by partiality, prejudice, mistake or corruption....

“ ‘A remittitur should fix the highest amount any jury could properly award, given due weight to all the evidence offered.’ . . . Therefore, the correct question on review is whether the award of damages ‘falls within the uncertain limits of fair and reasonable compensation or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption. . . .’ ” Doe v. Raezer, 444 Pa. Super. 334, 340, 664 A.2d 102, 105 (1995), reargument denied, appeal denied, 544 Pa. 630, 675 A.2d 1248 (1995). (citations omitted)

Corrina Poliak suffered with pain and swelling in her knee while she lost her fleeting opportunity to play collegiate lacrosse as a result of Dr. Holencik’s performance of an outdated procedure. In addition, Poliak, a young woman now in her early twenties, wears a large, ugly scar on her right leg. Through their award, the jury expressed their considered judgment of fair and just compensation for Dr. Holencik’s treatment of his patient. Does the dollar award shock our conscience? It does not, and is fully supported by the evidence addressed during this four-day trial. The jury’s judgment will not be altered.

We enter the following:

ORDER

And now, August 9, 2000, upon consideration of the motion for new trial and motion for remittitur of defendant Mark R Holencik D.O., defendant’s motions are hereby denied.

      . Poliak had gone to Utah for a summer job.

      . This is the only element of damages that could be affected by a claim of delay. The medical expenses, loss of life’s pleasures and disfigurement claims would not be affected by any delay.

      . We must add that the discussion here is largely academic since the sole element of damages which flowed from this count, as we instructed the jury (N.T. vol. II, p. 221), was that of loss of life’s pleasures (the ability to play lacrosse). This element of damages, however, was also properly considered under Counts 1 and 2. Since the jury found liability on both of these counts as well, it is largely irrelevant whether and on what count they made their award.


text:
    Rohrer v. Connelly

      C.P. of Dauphin County,
    no. 5498 S 1998.

      Kevin William Gibson, for plaintiff.

      Lawrence Barone and Jeffrey B. McCarron, for defendant Sheridan.

      James Goldsmith, for defendant Connelly.

      BEFORE: KLEINFELTER, P.J., LEWIS AND CHERRY, JJ.

    July 21, 2000
   KLEINFELTER, P.J.,

Before the court are the preliminary objections of defendants John Sheridan CPA and Sheridan & Fritz PC to plaintiff Yettanda Landis’ complaint in professional malpractice. As will be described more fully below, Ms. Landis retained Mr. Sheridan as an expert witness in her divorce action for the purpose of valuing her husband’s assets. For the reasons which follow, defendants’ preliminary objections are overruled.

Initially, we are compelled to note that defendants’ “preliminary objections” are procedurally defective. Couched as a demurrer under Pa.R.C.P. 1028(a)(4), defendants raise their objection based upon the theory that the witness immunity doctrine absolves Mr. Sheridan of any liability for unfavorable findings resulting from his testimony.

An immunity defense such as this is technically not the proper object of a demurrer, as it should be pleaded under new matter pursuant to Pa.R.C.P. 1030. Nevertheless, in the interest of expediency, we are inclined to decide the matter on the merits and proceed as if it were in fact a proper demurrer. Pa.R.C.P. 126.

As indicated above, this case finds its roots in a divorce action between Ms. Landis and a Mr. Howard Rohrer. At a hearing before the divorce master, the late Louis J. Adler, expert witnesses testified as to the value of the largest asset of the marital estate, namely Mr. Rohrer’s share in a bus leasing company. Among the assets for valuation were the school buses owned by the company. Standard reference in school bus valuation is the “Yellow School Bus Book,” an industry handbook that sets forth base prices for used school buses that is similar to the “Blue Book” utilized in the used car market. The Yellow Book is published annually on the first day of January. Of course, as the year progresses, the values of used buses quoted in the current Yellow Book depreciate, and “seasonal adjustments,” which are provided, are to be made in compensation.

On August 16,1996, Mr. Sheridan submitted a valuation report for the bus leasing company as of December 31, 1995. In it, Mr. Sheridan relied upon the 1995 Yellow Book when he valued the school buses and made no seasonal adjustments for depreciation from January 1 through December 1995. At the master’s hearing, Mr. Sheridan testified that, since it was the practice of Mr. Rohrer to value his buses without seasonal adjustments, it would not have been appropriate to make such adjustments in the valuation report.

Mr. Rohrer contended that Mr. Sheridan’s method was contrary to an April 19, 1996 agreement between the parties stipulating that the value of the school buses was to be obtained from “the current Yellow Book.” In that light, the market values of the buses would be subject to an additional year’s depreciation, since the current Yellow Book at that time was published in 1996. As a result, the value of the school buses as provided by Mr. Sheridan was $600,000 greater than Mr. Rohrer’s expert’s valuation. In light of the stipulation, the master rejected the report prepared by Mr. Sheridan and accepted the valuation report prepared by Mr. Rohrer’s expert.

After the master’s report was submitted on December 16, 1996, Ms. Landis filed exceptions, which were dismissed by this court. On appeal, the Superior Court affirmed, holding that the correct valuation of the school buses was pursuant to the 1996 Yellow Book as dictated by the stipulation.

On March 3, 1999, Ms. Landis brought this malpractice action alleging, inter alia, that Mr. Sheridan, and vicariously Sheridan & Fritz PC, were professionally negligent in the valuation of the school buses through the use of the 1995 Yellow Book instead of the 1996 edition. Defendants brought the instant preliminary objections on April 4,1999, to which Ms. Landis replied with a memorandum on February 3,2000. A three judge panel of this court heard oral argument on June 15, 2000, and the matter is now ripe for disposition.

We note the standard for resolving a demurrer as espoused by our appellate courts:

“Since sustaining the demurrer results in a denial of the pleader’s claim or dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted.... If the facts as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected....” Willet v. Pennsylvania Medical Catastrophe Loss Fund, 549 Pa. 613, 619, 702 A.2d 850, 853 (1997) (quoting The County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985)).

Defendants contend that Ms. Landis has no valid cause of action since they are absolved of any liability by the witness immunity doctrine. This doctrine essentially states that witnesses may not be held liable for statements made during legal proceedings. Moses v. McWilliams, 379 Pa. Super. 150, 549 A.2d 950 (1988). Its purpose is to promote free and candid testimony. Id.

Defendants cite Panitz v. Behrend, 429 Pa. Super. 273, 632 A.2d 562 (1993), appeal denied, 539 Pa. 694, 653 A.2d 1232 (1994), in support of their position that the witness immunity doctrine is equally applicable to friendly expert witnesses. Panitz involved an expert witness, Dr. Panitz, who was hired by a law firm to provide testimony in a personal injury action. When the jury returned an unfavorable verdict, the firm refused to pay Dr. Panitz as agreed, and she brought suit. In its counterclaim, the law firm alleged that the unfavorable verdict was the result of Dr. Panitz’s negligence and misrepresentation during testimony since she could not explain certain inconsistencies during cross-examination. Dr. Panitz also conceded after the trial that, even before the trial, she had come to realize that the reasoning upon which she had relied was inaccurate.

The Superior Court, however, agreed with Dr. Panitz’s claim of immunity and extended the witness immunity doctrine to include friendly expert witnesses. The court reasoned that the real purpose of expert testimony is to assist the jury in comprehending complex matters, not to ensure success in winning the case.

The Superior Court began its review by reiterating the well-recognized principle that “there is no civil liability for statements made in the pleadings or during trial or argument of a case so long as the statements are pertinent.” Panitz, 429 Pa. Super, at 277, 632 A.2d at 564. The court reviewed the public policy considerations, primarily the encouragement of complete and unintimidated testimony. The court went on to opine that “there also is no reason for refusing to apply the privilege to friendly experts hired by a party. The policy of encouraging frank and objective testimony, without fear of civil liability therefor, ‘obtains irrespective of the manner by which the witness comes to court.’ Bruce v. Byrne-Stevens & Associates Engineers Inc., ... 113 Wash.2d [123,] at 129, 776 P.2d [666,] at 669 [(1989)]. The primary purpose of expert testimony is not to assist one party or another in winning the case but to assist the trier of the facts in understanding complicated matters.” Panitz, 429 Pa. Super, at 280, 632 A.2d at 565. (full citation added)

While those of us who are routinely treated to expert testimony at trial may well raise a jaundiced eye to the latter assertion, it seems clear that the Panitz court intended that witness immunity be extended to experts— not only as to their trial testimony, but also as to their reports prepared pretrial.

The Panitz rationale, however, received scrutiny by our Supreme Court in LLMD of Michigan Inc. v. Jackson-Cross Co., 559 Pa. 297, 740 A.2d 186 (1999). We find LLMD of Michigan Inc. to be directly on point in illustrating the distinction between unfavorable expert testimony and professional negligence in the preparation of an expert report.

As in the case before us, LLMD of Michigan Inc. concerned an accountant who provided services as an expert witness and made a mathematical error in his calculation of the plaintiff’s lost profits. As a result of the error, the accountant’s valuation opinion was excluded and the plaintiffs were forced to settle for approximately $2,000,000 less than the actual loss suffered.

Our Supreme Court first conceded that experts must be able to articulate the basis for their opinion without fear that an unfavorable result will subject them to litigation. Notwithstanding this principle:

“We are unpersuaded, however, that those policy concerns are furthered by extending the witness immunity doctrine to professional negligence actions which are brought against an expert witness when the allegations of the negligence are not premised on the substance of the expert’s opinion. We perceive a significant difference between Panitz and ... in this case [where the expert] had been negligent in performing the mathematical calculations required to determine lost profits. The goal of ensuring that the path to truth is unobstructed and the judicial process is protected, by fostering an atmosphere where the expert witness will be forthright and candid in stating his or her opinion, is not advanced by immunizing an expert witness from his or her negligence in formulating that opinion. The judicial process will be enhanced only by requiring that an expert witness render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of their profession.” LLMD of Michigan Inc., 559 Pa. at 306, 740 A.2d at 191.

It is clear that Panitz retains little value in shielding expert witnesses from professional malpractice. Panitz remains valid only for the proposition that “An expert witness may not be held liable merely because his or her opinion is challenged by another expert or authoritative source. In those circumstances, the judicial process is enhanced by the presentation of different views. Differences of opinion will not suffice to establish liability of an expert witness for professional negligence.” LLMD of Michigan Inc., 559 Pa. at 307, 740 A.2d at 191.

We believe that the Supreme Court has charted the proper course in these matters. The sound public policies afforded by the immunities granted to lay witnesses — and even non-negligent expert testimony — will not be undermined by holding experts to the same standard of care in preparing for litigation as they would in their routine professional practice. In the case at bar, Ms. Landis has set forth a valid claim of professional negligence and defendants’ demurrer, such as it is, is overruled.

ORDER

And now, July 21, 2000, upon consideration of the preliminary objections, in the nature of a demurrer, of defendants John Sheridan CPA and Sheridan & Fritz PC, defendants’ demurrer is hereby overruled.

      . Ms. Landis was formerly known as Yettanda L. Rohrer prior to her divorce from Howard Rohrer.

      . We are left to assume that defendants are demurring to Counts IV, V and VI of the complaint since they fail to specify the objects of their demurrer either in their preliminary objections or in their supporting memorandum. Furthermore, that defendants’ objection is intended as a demurrer is merely mentioned in a passing fashion in paragraph 19, the final paragraph of their preliminary objections.

      . “(a) Except as provided by subdivision (b), all affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, im

        munity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading ‘new matter.’ A party may set forth as new matter any other material facts which are not merely denials of the averment of the preceding pleading.” Pa.R.C.P. 1030. (emphasis added)

      . Mr. Rohrer’s business enterprises, half of which were owned by his brother-in-law, consisted of H.E. Rohrer Inc., Rohrer Enterprises Inc., S&R Bus Leasing Inc. and S&R Bus Leasing of Harrisburg.

      . Unlike the average fact witness who finds himself summoned to court due to the fortuity of circumstances, expert witnesses are sought out and hired by litigants under the prospect that they will be able to render an opinion supportive of the contentions of a particular party to the litigation. Indeed many experts have made a business out of “forensic” testimony and advertise their services nationwide. It is safe to say that those hired experts who reach an opinion which is inimical to the interest of their clients never see the witness stand. They certainly are not made available to an adverse party “to assist the trier of the facts in understanding complicated matters.” Panitz, supra.

        . Panitz again cites the Washington Supreme Court in Bruce, supra, for this proposition, but goes on to recognize contrary authority in California and Arizona.

      . This fact seems to be clearly recognized by the dissent in LLMD of Michigan Inc.: “[A]n expert witness may be sued on the basis that the expert was negligent in formulating the opinion tendered at trial.” LLMD of Michigan Inc., 559 Pa. at 307, 740 A.2d at 192.


author: CARRAFIELLO, J.,

text:
    Devlin v. City of Philadelphia

      Dennis M. Abrams, for plaintiffs.

      Donna Marshall, for defendants.
    October 5, 2000—
   CARRAFIELLO, J.,

A. INTRODUCTION

The plaintiffs filed a complaint seeking to declare three Philadelphia ordinances invalid and to permanently enjoin the implementation of a “life partner” registry by the City of Philadelphia.

The first ordinance, promulgated as bill no. 970750, and more commonly referenced as the Fair Practices Act, governs public accommodation and employment practices as they pertain to life partners. The second ordinance, as promulgated as bill no. 970745, amends the Retirement System Ordinance, allowing employees to broadly name designated beneficiaries. The third ordinance, promulgated as bill no. 970749, amends the realty transfer tax exempting transactions between life partners.

The plaintiffs have recently withdrawn their opposition to the Retirement System Ordinance amendments, limiting the issues presented.

In their complaint, the plaintiffs assert five specific counts for relief. In their first count, the plaintiffs allege that the Commonwealth of Pennsylvania has wholly occupied the field of regulation of marriage and that the City of Philadelphia is divested of the power to pass the identified legislation extending certain rights and benefits to life partners.

In their second count, the plaintiffs broadly allege that the ordinances are violative of public policy. The plaintiffs thirdly contend that extending health and pension benefits to life partners is ultra-vires. It is fourthly maintained that the City of Philadelphia is without the power and authority to exempt real estate transfers between life partners from taxation. In their fifth and final count, the plaintiffs aver that the City of Philadelphia has no authority to prevent discrimination against life partners.

The City of Philadelphia filed preliminary objections to the plaintiffs’ complaint. On consideration, the Honorable Pamela Dembe sustained the preliminary objections to Counts I and II of the complaint in a court order issued on December 10, 1998. As a consequence, the state law preemption and public policy counts have been resolved by a court of concurrent jurisdiction and we are left to adjudicate the remaining contentions. Before this is done, however, preliminary issues involving standing and eligibility for relief under the Declaratory Judgment Act must be addressed.

B. STANDING AND ELIGIBILITY FOR DECLARATORY RELIEF

In its new matter and summary judgment application, the City of Philadelphia argued that the plaintiffs lacked standing to proceed with this action. The parties submitted briefs outlining their position with regard to this issue.

The plaintiffs in this case are all taxpayers and residents of the City and County of Philadelphia. They have brought suit in this capacity. None are identified as having a direct interest in this controversy and none are described as being private employers who would be adversely affected by any of the specific legislation at issue.

In the case of Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979), it was held that a taxpayer seeking standing to sue must allege a substantial, direct, and immediate interest in the outcome of the suit unless the taxpayer can show:

(1) the governmental action would otherwise go unchallenged;

(2) those directly and immediately affected by the complained of expenditures are beneficially affected and not inclined to challenge the action;

(3) judicial relief is appropriate;

(4) redress through other channels is unavailable; and

(5) no other persons are better situated to assert the claim.

There is ample precedent in this Commonwealth under the Biester doctrine extending standing to persons who challenge governmental actions, expenditures by state or municipal entities and the conduct of government officials, even though they are not directly affected. See Consumer Party of Pennsylvania v. Commonwealth of Pennsylvania, 510 Pa. 158, 507 A.2d 323 (1986) (standing afforded to challenge constitutionality of public official compensation law); Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988) (standing granted to challenge election); Rizzo v. City of Philadelphia, 136 Pa. Commw. 13, 582 A.2d 1128 (1990) (standing granted in action to enjoin the payment of benefits pursuant to police pension plan).

In this case, the trial court finds that the plaintiffs do have standing to challenge actions by the City and County of Philadelphia involving the extension of employee rights and benefits as well as the transfer tax amendments. There is no indication that there are other persons who are better situated to assert the same claims. Standing is also permitted given that these ordinances involve a public expenditure of monies for public employee benefits, which otherwise might not be subject to challenge.

Applying Biester, the court finds that while the plaintiffs do have standing to challenge the extension of rights and benefits to city employees and the transfer tax amendments, they do not have standing to challenge the provisions of the life partner ordinance as such provisions pertain to private employment and non-public entities.

Not only do these controversies lack a public expenditure of monies, it is the private employer or property owner being adversely affected by the legislation who will be in the best position to take challenge to its provisions. It would be unfair to them to have their interests litigated by parties who have neither the same interests, knowledge or assets.

Further, we find that there is no justiciable controversy involving such parties in this action. Pursuant to the Declaratory Judgment Act, codified at 42 Pa.C.S. §7541, declaratory judgment cannot be used as a vehicle to determine rights in anticipation of events that may not occur, for consideration of moot issues, or for advisory opinions that may prove to be purely academic. Lowther v. Roxborough Memorial Hospital, 738 A.2d 480 (Pa. Super. 1999). A party seeking declaratory relief must establish a direct, substantial and present interest, as contrasted with a remote or speculative interest. Bromwell v. Michigan Mutual Insurance Co., 716 A.2d 667 (Pa. Super. 1998). Declaratory relief is only warranted when there is an actual controversy and should not be accorded when averments are speculative and conjectural. Absent a judicial case or controversy, the matter simply is not ripe for resolution. Brown v. Commonwealth, Liquor Control Board, 673 A.2d 21 (Pa. Commw. 1996).

The Fair Practice Act amendments contain multiple provisions impacting upon employment, public accommodations and discrimination at large. There are a number of hypothetical controversies that could arise involving different aspects of the legislation. Whether they will or will not arise and what provisions may be challenged are all a matter of speculation.

In view of the above-stated considerations, standing and declaratory relief are limited in this case to the specific issues raised concerning city benefits and the realty transfer tax amendments.

C. EXTENSION OF MUNICIPAL BENEFITS TO PERSONS QUALIFYING AS LIFE PARTNERS

The plaintiffs contend that Philadelphia County is without power to extend municipal benefits to persons qualifying as “life partners.” A specific point of dispute arises concerning the extension of health benefits to life partners.

Article 9, Section 2 of the Pennsylvania Constitution provides that a municipality which has a home rule charter may exercise any power or perform any function not denied by the constitution, by its home rule charter, or by the General Assembly. The enabling legislation applying to cities of the first class directly confers expansive autonomy on Philadelphia County to enact ordinances governing the management of its governmental affairs. 53 PS. §13371 provides as follows:

“The cities of the first class of this Commonwealth shall have the power to make all such ordinances, bylaws, rules and regulations not inconsistent with or restrained by the constitution and laws of this Commonwealth as may be expedient or necessary for the proper management, care, and control of the city and its finances, and the maintenance of the peace, good government, safety and welfare of the city and its trade, commerce, manufactures; and the exercise of full and complete powers for local self-government in matters of police, and the same to alter, modify and repeal at pleasure....”

This authority is reiterated in 53 P.S. §13131, which provides that the city shall have complete powers of legislation and administration in relation to its municipal functions. Section 13131 allows for municipal governments to exercise any and all powers related to its municipal functions, not inconsistent with the constitution.

In conformity with the above cited, enabling legislative acts and consistent with the overall intent to confer wide latitude allowing for municipal self-governance, 53 P.S. §16254 provides that the council shall have the full power and authority to make ordinances as shall be necessary or convenient for the government and welfare of the city.

In view of the foregoing, the trial court finds that Philadelphia County is empowered to extend benefits to persons qualifying as life partners.

This determination is supported by state decisional law in other jurisdictions considering similar domestic partnership legislation. Courts in other jurisdictions have found that the extension of municipal benefits under such ordinances is a matter of local concern as it involves personnel policies and a city’s ability to hire and retain a broader range of qualified employees. See Schaefer v. City and County of Denver, 973 P.2d 717 (1998); Crawford v. City of Chicago, 710 N.E.2d 91, 98 (Ill. App. 1999); Slattery v. City of New York, 179 Misc.2d 740, 686 N.Y.S.2d 683 (1999), aff’d as modified, 697 N.Y.S.2d 603, 266 A. 2d 24 (1999) (modified to formally declare validity of domestic partnership law). Prohibiting the extension of such benefits may in fact place the City of Philadelphia at a competitive disadvantage with private employers who allow for such benefits. The domestic partnership legislation in Philadelphia County is distinguishable from that in a number of other states where it was found invalid for expressly conflicting with state law. It also differs from cases in other jurisdictions where there is a comprehensive state law statutory scheme encompassing the extension of municipal benefits at the local level.

In view of the broad enabling legislation, the absence of any restrictive language in state statutory law prohibiting Philadelphia from extending benefits to life partners, and the county’s vested authority in regulating municipal government and in competitively attracting a broad range of highly qualified employees, the extension of city benefits inclusive of medical coverage to domestic partners is a valid exercise of authority.

D. VALIDITY OF ANTI-DISCRIMINATORY PROVISIONS

In the fifth count of the complaint, the plaintiffs assert that the city has no authority to prevent discrimination against “life partners.” While it is alleged that the amendments to the Fair Practices Act providing for such protection are unlawful, it is at the same time acknowledged that prior to its amendment, the Act prevented discrimination based upon sexual orientation.

The general prohibition against discriminatory practices is a valid exercise of power by the County of Philadelphia. As an employer, the city can contractually protect employees and provide rights and benefits to them above and beyond that which is otherwise affirmatively mandated under state or federal law.

To the extent that the provisions of the ordinance pertain to public accommodations, they are also enforceable. As part of its police power, the County of Philadelphia is vested with the authority to amend section 9-1105 of the Fair Practices Act to prevent the denial of public accommodations to persons merely on account of their status as life partners.

This power is manifested in the broad constitutional authority vested under Article 9, Section 2, and the enabling Act legislation found at 53 P.S. § 13371. The regulation of public accommodation practice does not conflict with the provisions of the Pennsylvania Human Relations Act which apply to employers, employment agencies and labor unions. See 43 P.S. §955 et seq.

Absent an actual controversy involving the application of the ordinance to private employers, the trial court is placed in a speculative position and declaratory relief is inappropriate. There are many types of issues that can arise in such context and the specific policies and procedures of a particular employer requires consideration on its own merit.

E. AMENDMENTS TO TRANSFER TAX PROVIDING EXEMPTION FOR LIFE PARTNERS

The plaintiffs take challenge to the newly enacted realty transfer tax exemptions for real estate transfers between life partners in the County of Philadelphia.

Pursuant to the Sterling Act, promulgated at 53 P.S. §15971, broad authority is conferred upon the City of Philadelphia to enact real estate transfer tax legislation. Through this power, the city is vested with the ability to tax transactions occurring within its bounds so long as it is not subject to state tax or a license fee. Implicit in this power is the right to promulgate exemptions.

The city’s authority to impose a realty transfer tax ordinance, however, is subject to the uniformity clause found in Article VIII, Section I of the Pennsylvania Constitution. Pursuant to this constitutional mandate, all taxes must be uniform upon the same class of subjects.

In adjudicating a controversy such as that presented, the court is mindful of the presumption of constitutionality attaching to tax legislation. Amidon v. Kane, 444 Pa. 38, 60, 279 A.2d 53, 65 (1971). In this respect, the burden rests upon the challenger to prove clearly, plainly and palpably that it violates a constitutional provision such as the uniformity clause. Id. at 60, 279 A.2d at 65; see also, F.J. Busse Co. v. Pittsburgh, 443 Pa. 349, 357, 279 A.2d 14, 18 (1971).

In considering challenges lodged against a real estate transfer tax ordinance, the Pennsylvania Commonwealth Court, in Equitable Life Assurance Society v. Murphy, 153 Pa. Commw. 338, 621 A.2d 1078 (1993), held that the selection of subjects for taxation, their classifications, and the method of collection are legislative matters. The only constitutional limitation on this power is that the classification be reasonable and not arbitrary. Id. at 354, 621 A.2d at 1086. As otherwise stated, “[t]he test of uniformity is whether there is a reasonable distinction and difference between the classes of taxpayers sufficient to justify different tax treatment.” Busse Co., 443 Pa. at 357, 279 A.2d at 18.

In assessing reasonableness of classifications under the uniformity clause, the court may consider, among other factors, whether the classification is based upon well-grounded considerations of public policy. Equitable Life Assurance, 153 Pa. Commw. at 356, 621 A.2d at 1087.

A review of case law in this Commonwealth reveals that tax ordinances have been invalidated under the uniformity clause when they employ graduated rates based upon income level or quantity. In all of these cases, there is a common theme in which it has been found that persons within the same classification are being treated differently.

By contrast, in cases rejecting uniformity clause challenges, there is a differentiation in the subject of classification. See e.g., Commonwealth v. Life Assurance Company of Pennsylvania, 419 Pa. 370, 214 A.2d 209 (1965) (gross premium tax distinguishing between domestic life insurance carriers and other types of carriers validated).

Guided by these principles, the trial court turns to the realty transfer tax exemption at issue. The legislature’s ability to create separate tax classifications for persons sharing certain social, familial relations and levels of financial dependency has been recognized. This is most evident through the marriage exemption for transfer taxes which has gained long-standing acceptance.

The domestic partner exemption is aimed at providing a well defined class of persons who would otherwise be ineligible from reaping the benefits of the transfer tax exemption, with a means of doing so.

By requiring such persons to meet a test of financial dependency subject to multiple guidelines, the criteria for qualification are far from arbitrary. In this instance, detailed regulations are established, requiring that the partners share a residence, share the common necessities of life, undertake responsibility for the welfare of one another, not be related by blood, be the sole life partner of one another and not have been in another life partnership within the past 12 months subject to certain limited exceptions.

Mindful of the presumption of constitutional validity and the power vested with the legislature to make classifications and to use public policy considerations as a criterion, the court finds there to be a rational basis for the classification of this subgroup of persons who otherwise would be precluded from ever receiving an exemption.

The transfer tax exemption does not conflict with or undermine any state laws or statutes and conforms with the authority vested upon the City of Philadelphia under the Sterling Act.

The legislation may also be deemed to have a rational basis insofar as the ordinance is aimed at encouraging persons not eligible for marriage to remain within the confines of Philadelphia. Disfavorable tax treatment may cause such persons to leave Philadelphia or refuse to locate there, altogether depriving the city of a tax basis. Effectively, the ordinance addresses the disparate treatment faced by homosexual men and women, who cannot otherwise share some of the same benefits available to other persons.

In light of the above considerations, the trial court finds the real estate transfer tax amendments to be a valid exercise of legislative authority.

DISPOSITIONAL ORDER

And now, to wit, October 5,2000, on consideration of the parties’ cross-motions for summary judgment, it is hereby ordered and decreed that the summary judgment application of the defendant, City of Philadelphia, is granted as follows:

(1) The extension of health benefits and other benefits to life partners by the City of Philadelphia pursuant to the Fair Practices Act and other legislation is deemed to be a valid exercise of authority.

(2) The anti-discriminatory provisions of the Fair Practices Act is deemed legal with respect to public accommodations and in terms of imposing obligations upon the City of Philadelphia as a public employer.

(3) The amendments to the transfer tax ordinance providing an exemption for life partners is found to be constitutional and legal.

(4) The registration provisions of the Fair Practices Act are deemed to be legal.

The plaintiffs lack standing and are ineligible to apply for declaratory relief for purposes of challenging the application of the Fair Practices Act to private employers and non-governmental entities.

      . As noted by the Appellate Court of Illinois in Crawford, supra, there are approximately 500 Fortune 1000 companies that provide health benefits to domestic partners of employees.

      . It has been held that if a statute provides for a classification capable of two interpretations, one of which would provide for uniform taxes and the other not, the interpretation which would provide for uniform taxes is to be preferred. American Stores Co. v. Boardman, 336 Pa. 36, 6 A.2d 826 (1939).

      . As held in Equitable Life Assurance, a “heavy burden of demonstrating that the classification employed is unreasonable rests upon the party challenging the constitutionality of the tax.” Id. at 356, 621 A.2d at 1087.

      . In this respect, a graduated tax applying different rates for persons with different levels of income was held unconstitutional in Kelley v. Kalodner, 320 Pa. 180, 181 A. 598 (1935). In a different context, it was held improper to exempt real estate transfers based upon transfers of less than a one percent ownership interest. Equitable Life Assurance, supra.

      . In contrast with the cases invalidating taxes based upon the uniformity clause, the ordinance at issue does not apply different gradations to persons of the same class. It also does not apply disparate treatment based upon quantity, level of income, or any other similar ground previously held invalid.


author: IOLE, Member,

text:
    In re Anonymous No. 72 D.B. 93

      Disciplinary Board Docket no. 72 D.B. 93.
    June 28, 1999
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

IOLE, 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 to revoke probation.

I. HISTORY OF PROCEEDINGS

On October 7,1993, a petition for discipline was filed by Office of Disciplinary Counsel against respondent, [ ]. The petition alleged violations of the Rules of Disciplinary Enforcement based on respondent’s criminal conviction for driving under the influence of alcohol. On January 17, 1995, the board ordered that respondent receive a private reprimand. The board further ordered that respondent be placed on substance abuse probation for a period of two years, subject to various terms and conditions. The private reprimand was administered to respondent on March 30, 1995.

On December 16,1996, Office of Disciplinary Counsel filed a petition to revoke probation. The petition alleged that respondent had not complied with the terms and conditions of his probation by filing untimely quarterly reports or failing to file any reports. On January 28, 1997, the board issued an order and rule to show cause upon respondent to show cause why his probation should not be revoked, the private reprimand rescinded, and other discipline imposed. Respondent and petitioner filed answers to the rule.

After consideration of the responses, on June 5, 1997 the board issued an order finding respondent in violation of probation and ordered that respondent be placed on substance abuse probation for an additional period of one year, effective July 5, 1997. The conditions were substantially the same as those established pursuant to the board’s original order of January 17, 1995, except that [A], Esquire, was appointed as the sobriety monitor.

On May 26,1998, Office of Disciplinary Counsel filed a second petition to revoke probation. The petition alleged that respondent’s quarterly reports had not been timely filed and that respondent had not maintained the required regular contact with his sobriety monitor. The petition requested that the board hold a hearing on the matter.

A probation revocation hearing was held before board Member John E. Iole, Esquire, on February 22, 1999. Respondent was represented by [ ], Esquire. Petitioner was represented by [ ], Esquire. Respondent previously had agreed to waive the 10-day hearing requirement as provided for by Pa.R.D.E. 208(h).

Subsequent to the hearing, respondent and petitioner filed letter briefs to the board setting forth their respective positions. Respondent requested that the sanction, if any, imposed on respondent be adjusted to reflect his personal efforts at rehabilitation. Petitioner requested that the board rescind the private reprimand and recommend to the Supreme Court that respondent receive no less than a public censure, with substance abuse probation.

This matter was adjudicated by the board at the meeting of March 10, 1999.

H. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, 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 was bom in 1958 and was admitted to practice law in the Commonwealth of Pennsylvania in 1985. His current office address is [ ]. Respondent is subject to the disciplinary jurisdiction of the board.

(3) By order dated January 17,1995, the board determined that respondent should receive a private reprimand. The board further ordered that he be placed on substance abuse probation for a period of two years, subject to appropriate terms and conditions related to respondent’s alcohol abuse.

(4) Among other things, the board’s order required respondent to submit quarterly reports detailing respondent’s compliance with the probation terms. These conditions included abstaining from alcohol, attending weekly Alcoholics Anonymous meetings, meeting with his sobriety monitor at least twice per month, and maintaining weekly telephone contact with his monitor.

(5) Respondent filed his first four required reports late, and thereafter totally failed to file the reports. By letter of November 19, 1996, respondent’s sobriety monitor, [B], Esquire, informed the board that he had made attempts to help respondent, but for several months had been unable to make contact with respondent or to determine if respondent attended AA meetings pursuant to the terms of his probation.

(6) Petitioner filed a petition to revoke probation on December 16, 1996.

(7) After consideration of the parties’ positions, by order of June 5, 1997, the board found respondent in violation of probation and ordered that respondent be placed on substance abuse probation for an additional period of one year.

(8) The probation conditions were substantially the same as those established pursuant to the board’s original order of January 17, 1995, except that [A], Esquire, was appointed as respondent’s sobriety monitor.

(9) Respondent’s first quarterly report under the amended order, due October 5,1997, was not filed until December 4, 1997. Respondent admitted in the report that he had not maintained weekly telephone contact with his monitor and had not met with him twice per month.

(10) Since that filing, respondent has had no contact with his sobriety monitor and has filed no quarterly reports with the board.

(11) On May 26, 1998, petitioner filed a petition to revoke probation.

(12) At the probation revocation hearing held on February 22, 1999, respondent stipulated that he had violated the terms and conditions of the board’s order of June 5, 1997.

(13) Respondent testified to his efforts to acknowledge his alcohol abuse and to rehabilitate himself through his individual efforts.

(14) Respondent testified that he voluntarily went to [C] Treatment Center on May 22,1996 and stayed as an inpatient until June 3, 1996. (N.T. 20, 21.)

(15) Thereafter, respondent received outpatient treatment for approximately three weeks. (N.T. 21.)

(16) From June 1996 until the end of 1996, respondent testified that he attended 150 Alcoholics Anonymous meetings. (N.T. 25.)

(17) Respondent testified that he has not used alcohol since May 1996.

(18) Respondent currently attends approximately three AA meetings per month. (N.T. 28.)

(19) Respondent understands that his sobriety monitors tried to help him, but testified that he needed to take care of his alcohol problem in his own way rather than to follow the terms and conditions of his probation. (N.T. 28, quarterly report filed December 4, 1997.)

(20) No disciplinary complaints have been filed against respondent during the period of his probation.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the terms and conditions of his substance abuse probation.

IV. DISCUSSION

This matter is before the board upon a petition to revoke probation. At the revocation hearing respondent stipulated that he violated the terms and conditions of his substance abuse probation by failing to file timely quarterly reports and failing to meet with his sobriety monitor and attend AA meetings. The issue before the board is the appropriate discipline to address this violation.

This is respondent’s second instance of violating his substance abuse probation. In 1997, the board found that respondent violated his probation and imposed an additional probation period of one year, effective June 5,1997. Respondent’s original probation term was for two years. The acts constituting the first violation of probation were substantially similar to the instant acts. Respondent filed untimely reports and sometimes totally failed to file any reports. His sobriety monitor was not able to keep track of respondent and was not certain that respondent was abstaining from the use of alcohol.

Respondent agrees with all of the facts concerning his failure to comply with his probation terms. He explained that he believed the purpose of probation was to ensure that he did not use alcohol through the use of a support system. Respondent felt that he could deal with his problem in his own way rather than in the manner set out in his probation order. To this end, he voluntarily attended and completed an inpatient treatment program at [C] Treatment Center. He followed this with outpatient counseling. He attended AA meetings frequently in the latter part of 1996, and currently attends AA meetings several times per month. He apparently has abstained from alcohol since May 1996. Respondent testified that he has made significant progress in his rehabilitation. While respondent admits he did not strictly comply with the terms of his probation, he contends that his efforts at seeking treatment should be considered in his favor.

It is petitioner’s position that the purpose of substance abuse probation not only is to achieve sobriety for respondent, but also to monitor the sobriety of respondent. Respondent’s failure to follow the reporting requirements has prevented the board from successfully monitoring respondent’s sobriety. Petitioner emphasizes that respondent has twice violated the probation orders; therefore, petitioner contends that respondent should no longer have the benefit of private discipline.

After a careful review of the record and issue raised in this matter, the board believes that the appropriate discipline is to suspend respondent from the practice of law for one year and one day, with the suspension to be stayed in its entirety, and to place respondent on probation for an additional period of one year. Although the board is cognizant of respondent’s inability to comply with probation in the past, respondent appears to recognize the seriousness of this failure. Respondent admits that he has a problem with alcohol, and he has attempted to address this problem by receiving treatment and counseling. He has maintained his sobriety since May 1996. He continues to attend AA meetings. He continues to practice law. No clients have complained of unethical behavior by respondent. Furthermore, respondent testified that he has drastically changed his habits and that his personal life is now very satisfying to him. The board believes that respondent will not be willing to disturb these positive aspects of his life by violating his probation and enmeshing himself once again in the disciplinary system.

Except insofar as it supports a last chance to avoid more serious discipline, the board rejects respondent’s claim that he could only rehabilitate himself on his own terms; the board cannot permit respondent self-prescribed probation terms and conditions. The orders imposing discipline on respondent in the form of probation were not voluntary. They were mandatory. Respondent was not entitled to ignore the orders and then claim that they were unnecessary. Strict compliance with the terms and conditions of probation, including the reporting requirements, is necessary to allow the board to effectively monitor respondent’s continued adherence to sobriety. Probation often is a form of discipline that offers an alternative to more severe discipline. Respondent’s testimony and conduct persuade the board that respondent be given a final chance to comply with his probation but to impose relatively severe discipline if respondent fails to comply. If respondent is not prepared to follow through in a detailed and conscientious manner, he will lose his license to practice law for one year and one day, after which time he will have to petition for reinstatement and prove that he is fit to practice law. Such a burden ultimately will be far heavier than adhering to the requirements of probation.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ] be suspended for a period of one year and one day, that the suspension be stayed in its entirety and respondent be placed on probation for a period of one year on the same terms as his previous probation, with the time period to run from the date the order issuing such discipline is imposed on respondent.

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

ORDER

And now, August 25,1999, upon consideration of the report and recommendations of the Disciplinary Board dated June 28, 1999, it is hereby ordered that [respondent] be and he is suspended from the bar of this Commonwealth for a period of one year and one day, that the suspension be stayed in its entirety and respondent be placed on probation for a period of one year subject to the following conditions:

(1) Respondent shall abstain from using alcohol or any other mind-altering chemical;

(2) Respondent shall regularly attend Alcoholics Anonymous meetings on a weekly basis;

(3) Respondent shall obtain a sponsor in Alcoholics Anonymous and maintain weekly contact with that sponsor;

(4) A sobriety monitor shall be appointed to monitor for respondent in accordance with Disciplinary Board Rule 89.293(c);

(5) Respondent shall furnish his sobriety monitor with his Alcoholics Anonymous sponsor’s name, address and telephone number;

(6) Respondent shall establish his weekly attendance at Alcoholics Anonymous meetings by providing written verification on a board-approved form to his sobriety monitor;

(7) Respondent shall undergo any counseling, outpatient or inpatient treatment, prescribed by a physician or alcohol counselor;

(8) With the sobriety monitor, respondent shall:

(a) meet at least twice a month;

(b) maintain weekly telephone contact;

(c) provide the necessary properly executed written authorizations to verify his compliance with the required substance abuse treatment; and

(d) cooperate fully.

(9) The appointed sobriety monitor shall:

(a) monitor respondent’s compliance with the terms and conditions of the order imposing probation;

(b) assist respondent in arranging any necessary professional or substance abuse treatment;

(c) meet with respondent at least twice a month, and maintain weekly telephone contact with respondent;

(d) maintain direct monthly contact with the Alcoholics Anonymous chapter attended by the respondent;

(e) file with the secretary of the board quarterly written reports; and

(f) immediately report to the secretary of the board any violations by the respondent of the terms and conditions of the probation.

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


author: GEORGE JR., Member,

text:
    In re Anonymous No. 50 D.B. 90

      Disciplinary Board Docket no. 50 D.B. 90.
    February 19, 1999
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GEORGE JR., Member,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

On April 27,1998, petitioner, [ ], filed a petition for reinstatement from suspension. Petitioner was suspended for a period of five years retroactive to April 20, 1990 pursuant to the order of Supreme Court of May 6,1996. The suspension was based on petitioner’s conviction in the Superior Court of New Jersey for conspiracy and theft by deception in violation of NJ.S. §§2C:5-2 and 2C:20-4.

This matter was referred to Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. A reinstatement hearing was held on July 10, 1998. Petitioner represented herself. Office of Disciplinary Counsel was represented by [ ], Esquire.

The Hearing Committee filed a report on October 16, 1998 and recommended that the petition be granted. No briefs on exception were filed by the parties.

This matter was adjudicated by the board at the meeting of November 18, 1998.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner was bom on October 11,1951. She was admitted to the bar in Pennsylvania on October 18,1982. She currently resides at [ ].

(2) By order of the Supreme Court dated May 6,1996, petitioner was suspended from the practice of law for a period of five years retroactive to April 20, 1990.

(3) Petitioner was suspended as a result of her conviction on December 7, 1988 of conspiracy and theft by deception.

(4) Petitioner was sentenced to serve a seven-year prison term. This sentence was modified after reconsideration by the court to a prison term of 364 days and three years of probation.

(5) Petitioner served 82 days in prison and was released on parole. Her probation terminated on June 30, 1994.

(6) Petitioner’s criminal conviction occurred while she was a member of a cult. She was under the influence of the cult leader, who was responsible for masterminding the commission of the offenses charged.

(7) Since petitioner’s conviction, she removed herself from the cult and obtained significant medical treatment and therapy over a three-year period to assist her in separating from the cult.

(8) Petitioner has been rehabilitated and has fully recovered from her problems associated with the cult.

(9) During petitioner’s suspension, she attended [A] School of Nursing in New Jersey and obtained her nursing license in July 1994. Petitioner performed at the top of her class.

(10) Petitioner successfully practiced as a geriatric nurse from October 1994 through March 1996 and as a temporary [ ] for the New Jersey Department of Health from April through August 1997.

(11) Petitioner completed continuing legal education classes in excess of 36 hours and worked with three attorneys as a nurse consultant and paralegal in connection with the preparation of medical malpractice cases.

(12) Petitioner presented character witnesses who testified to. her reputation in the community as an ethical and trustworthy individual as well as an intelligent and hard-working person. These witnesses included her husband and two legal employers. The witnesses urged the committee to recommend reinstatement, as petitioner would be an asset to the legal community.

(13) Petitioner testified that she learned how to handle her guilt associated with her life as a cult member and she has been able to move forward in her life. (N.T. 101-102.)

(14) Petitioner testified that the effects of her years in the cult do not linger on her day-to-day activities and decision-making, or her abilities to perform on a personal or professional level. (N.T. 117-18.)

III. CONCLUSIONS OF LAW

Petitioner has demonstrated, with clear and convincing evidence, that she possesses the moral qualifications, competency and learning in the law necessary to practice in Pennsylvania.

Petitioner’s resumption of the practice of law will not be detrimental to the integrity of the bar nor subversive of the interests of the public.

IV. DISCUSSION

An attorney who is suspended from the practice of law for a period exceeding one year may not resume practice until reinstated by order of the Supreme Court of Pennsylvania. Pa.R.D.E. 218(a). In order for petitioner to gain reinstatement after suspension, she has the burden of demonstrating, by clear and convincing evidence, that she possesses the moral qualifications, competency and learning in the law required for admission to practice law. Part of petitioner’s burden also requires that she demonstrate that her resumption of the practice of law will not be detrimental to the integrity and standing of the bar, nor subversive of the public interest. Pa.R.D.E. 218(c)(3)(i).

In determining whether petitioner clearly demonstrated her present fitness to practice law, the board considered the nature of petitioner’s misconduct, her present competence and legal abilities, her character, rehabilitation, and degree of remorse expressed. Philadelphia Newspapers Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

Petitioner was suspended for her conviction of conspiracy and theft by deception. These crimes occurred between 1979 and 1983, when petitioner was an impressionable member of a destructive cult. The leader of the cult directed members to register at educational institutions for the purpose of securing guaranteed student loans. These loans were never used by the members for college tuition, but instead were given to the cult as instructed by the leader.

After petitioner’s conviction, through therapy and her own efforts, she was able to separate herself from the cult and eventually return to a stable pattern of life.

Petitioner has now been suspended from the practice of law since 1990. During her suspension, she went to nursing school and obtained her nursing license in 1994. She performed at the top of her class and received many accolades. Petitioner worked as a geriatric nurse and a [ ] for the State of New Jersey.

Petitioner worked in the legal field as well. She served as a nurse consultant and a paralegal for medical malpractice cases with Attorneys [B] and [C], as well as her husband, Attorney [D]. These attorneys testified at the hearing to petitioner’s moral fitness and competence. The testimony reveals that petitioner is a person of impeccable character and high moral standards, and has an excellent ability to grasp legal concepts.

Petitioner demonstrated sincere remorse and provided ample evidence of her rehabilitative efforts. There is no question that petitioner’s experience with the cult was a very unusual circumstance and will not be repeated in the future. In spite of these obstacles in her youth, petitioner has persevered in making a new and rewarding life for herself. The evidence is clear that she will not cause harm to the public by her readmission.

The record demonstrates that petitioner has met the requirements for reinstatement from her suspension. Her misconduct was serious and was appropriately addressed by the Supreme Court. She fulfilled the term of her suspension without any difficulties or questionable activities. She is morally fit, competent and learned in the law. Her desire to practice law is sincere.

For these reasons, the board recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, [ ], be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa. R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Member Elliott did not participate in the November 18, 1998 adjudication.

ORDER

And now, April 21, 1999, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated February 19, 1999, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.