author: WETTICK, J.,

text:
    Williams v. Katawczik

      October 2, 2001
    C.P. of Allegheny County,
    no. GD00-9829.

      Matthew L. Kurzweg, William Pietragallo II and Alfred S. Pelaez, for plaintiff.

      William M. Wycojf and Kevin P. Allen, for defendant Katawczik.

      David L. McClenahan, Ellen L. Surloff and Michael S. Nelson, for defendants Weir.
   WETTICK, J.,

Defendants’ preliminary objections to plaintiff’s amended complaint are the subject of this opinion and order of court. The amended complaint contains nine counts. Defendants contend that, as to each count, plaintiff has failed to state a cause of action against any of the defendants.

Prior to April 1, 1997, plaintiff was a shareholder of Ft. Pitt Acquisition Inc., owning 16,667 shares of common stock directly, and 13,332 shares of common stock under a voting trust. Plaintiff also held options to purchase 10,376 shares of common stock.

Prior to April 1, 1997, defendants owned and/or controlled less than 50 percent of Ft. Pitt’s outstanding shares. However, they would own and/or control more than 50 percent of the corporate stock if they also owned and/or controlled plaintiff’s shares.

Pursuant to an agreement dated April 1, 1997, plaintiff conveyed all of his direct shares, trust shares, and options to defendants Dennis M. Katawczik and Kevin T. Weir with one-half of the transferred shares being conveyed to Mr. Katawczik and the other half to Mr. Weir. In exchange for the sale of his shares, plaintiff received an immediate payment of $70,660 and subsequent payments totaling $207,000 plus interest (i.e., approximately $6.90/share).

The April 1, 1997 agreement (paragraph 4) included the following provision:

“In the event that Mr. Weir or Mr. Katawczik sell all or any part of the direct shares or the trust shares purchased hereunder prior to April 1, 1999 (such resold shares being referred to herein as the ‘resold shares’), Mr. Weir and/or Mr. Katawczik, as the case may be, shall pay to Mr. Williams upon the closing of the sale of the resold shares an amount with respect to each resold share equal to the sale price of such resold share less $6.90.”

Beginning in late 1997 or early 1998, Graham Webb International Limited Partnership engaged in negotiations with Mr. Katawczik and Mr. Weir (who now controlled Ft. Pitt) to acquire Ft. Pitt. In June or July 1998, Graham Webb indicated a willingness to purchase all of the Ft. Pitt stock for $45 million ($166 per share). During the same period, Styling Technology Corporation also was engaged in negotiations with Mr. Katawczik and Mr. Weir to acquire control of Ft. Pitt.

In June or July 1998, Mr. Katawczik and Mr. Weir met with plaintiff for the purpose of seeking to modify paragraph 4 of the April 1,1997 agreement. At the meeting, defendants allegedly stated that they would not convey any of the shares acquired from plaintiff to any purchaser until April 1, 1999, unless plaintiff would agree to cap the additional payment at $1 million. Plaintiff alleges that, neither at this meeting nor at any other time, did defendants inform him of the details of any offers or of the fact that a sale could be readily effectuated as of the date of the meeting. Plaintiff alleges that in reliance on defendants’ statements that they would not sell the stock until after April 1,1999, unless plaintiff agreed to the modification, on July 14, 1998, plaintiff executed a first amendment to the April 1, 1997 agreement which reads, in relevant part, as follows:

“(1) Amendment to section 4. Section 4 of the agreement is hereby amended by adding the following sentence at the end:
“Notwithstanding anything herein to the contrary, in no case shall Mr. Williams be entitled to receive in excess of $1,000,000 in the aggregate as a result of the provisions of this section 4.
“(2) Confirmation of agreement. Except as expressly provided herein, the agreement shall remain unamended and in full force and effect.”

On July 15, 1998, defendants entered into an agreement to convey all the shares which they owned (including the shares purchased from plaintiff) to Styling for $30 million. The closing occurred on August 3,1998. If the April 1,1997 agreement had not been amended, plaintiff would have been entitled to $183.12 for each share (approximately $6.4 million). Because of the amendment, plaintiff received only $1 million. In this lawsuit, plaintiff seeks to recover the additional $5.4 million that he would have received if the agreement had not been modified.

I.

I initially consider the preliminary objections to Count VI (unjust enrichment) and Count IX (unjust enrichment). In Count VI, plaintiff alleges that defendants were unjustly enriched because plaintiff has not been fully compensated for the value of his shares. I am dismissing this count. The parties’ relationship is governed by the April 1, 1997 agreement and the July 14, 1998 first amendment to agreement; thus, plaintiff’s claim is governed by principles of contract law. See case law holding that the doctrine of unjust enrichment is not applicable where the relationship is governed by a contract. Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999); First Wisconsin Trust Co. v. Strausser, 439 Pa. Super. 192, 202 n.2, 653 A.2d 688, 693 n.2 (1995); Coldwell Banker Phyllis Rubin Real Estate v. Romano, 422 Pa. Super. 319, 329-30, 619 A.2d 376, 381 (1993); Birchwood Lakes Community Association Inc. v. Comis, 296 Pa. Super. 77, 86, 442 A.2d 304, 309 (1982).

In Count IX, plaintiff contends that defendants will be unjustly enriched in the event that certain rulings are made in defendants’ favor in a pending lawsuit at GD98-19726. These rulings have not been made, so the alleged unjust enrichment has not occurred. Consequently, this count is dismissed without prejudice.

II.

I next consider the breach of contract claims raised in Counts V and VIII. Many of plaintiff’s claims are based on plaintiff’s contention that defendants had a duty to make reasonable efforts to complete a sale of the stock prior to April 1, 1999.

Plaintiff alleges that plaintiff and defendants understood that the original paragraph 4 was not an open-ended option to defendants to, at their discretion, postpone the sale of the company to April 1,1999, if there was a substantial offer prior to April 1, 1999. Instead, defendants had a duty to market the stock throughout this two-year period and to accept any offer that they would have been expected to accept.

Plaintiff seeks to offer parol evidence showing that the parties did not bargain over the purchase price for plaintiff’s shares because the parties understood that defendants had a duty to aggressively market the stock now that they were in a position to sell a controlling interest. Both plaintiff and defendants expected that there would be offers that far exceeded the purchase price. The purchase price was only a nominal price that plaintiff would receive if it turned out (contrary to the expectations of the parties) that there was not a market for the stock. The core of the transaction was defendants’ duty to market the stock and plaintiff’s right to the additional proceeds described in paragraph 4.

Defendants contend that this testimony is barred by the parol evidence rule. The April 1, 1997 agreement contains an integration clause (paragraph 5A). The agreement (paragraph 5D) also states that the parties to the agreement acknowledge that the agreement has been reviewed and approved by the parties’ respective legal counsel.

The April 1,1997 agreement does not contain any language which suggests that defendants had any obligation to market their controlling interest in the corporation or to sell their stock if they received an offer that substantially exceeded the price they paid for plaintiff’s stock. Under the plain language of the agreement, defendants had to share with plaintiff money that they received from the sale of the stock only if defendants chose to sell the stock within two years. Plaintiff seeks, through parol evidence, to add a requirement that would materially alter the nature of the transaction which the writing describes. Parol evidence cannot be introduced to change the nature of the transaction described in a writing with an integration clause. Because a writing with an integration clause is intended to be a complete expression of the parties’ agreement, parol evidence cannot be offered as to a matter that would normally have been included in the writing. Kehr Packages Inc. v. Fidelity Bank, National Association, 710 A.2d 1169, 1174 (Pa. Super. 1998).

For these reasons, the agreement between the parties must be construed by considering only its clear and unambiguous language: Defendants had no obligation to market or sell the stock in the period between April 1, 1997 and April 1, 1999.

Plaintiff correctly states that every contract imposes a duty of good faith and fair dealing in its performance. The Pennsylvania appellate courts have adopted section 205 of the Restatement (Second) of Contracts which provides that “[ejvery contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.” See Kaplan v. Cablevision of PA Inc., 448 Pa. Super. 306, 318, 671 A.2d 716, 721-22 (1996), and cases cited therein.

The duty of good faith arises under the law of contracts. The law implies “an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contract.” Somers v. Somers, 418 Pa. Super. 131, 137-38, 613 A.2d 1211, 1214 (1992). (citation omitted)

However, this duty of good faith is not breached whenever a party is merely exercising a contractual right, rather than threatening to breach the contract. Eighth North-Val Inc. v. Parkinson D.D.S. P.C. Pension Trust, 773 A.2d 1248, 1254 (Pa. Super. 2001). The duty of good faith does not compel a party to surrender rights which it has been given by the terms of the contract. A party does not violate a duty of good faith because it enforces a provision in a contract which is very favorable to that party. Creeger Brick and Building Supply Inc. v. Mid-State Bank and Trust Co., 385 Pa. Super. 30, 37, 560 A.2d 151, 154 (1989). Consequently, since defendants’ agreement with plaintiff did not impose any duty on defendants to sell their stock prior to April 1999, the duty of good faith did not alter the right which the contract gave to defendants to postpone efforts to sell the stock until April 1999.

The duty of good faith imposed on defendants is only a duty to act in good faith with respect to any sale occurring prior to April 1, 1999. Under paragraph 4 of the April 1,1997 agreement, plaintiff had a contractual right to additional money if a sale occurred prior to April 1, 1999. The duty of good faith imposed on defendants an obligation to refrain from doing anything that would destroy or injure plaintiff’s right to receive the fruits of the contract.

If, at the time defendants approached plaintiff about a modification to the contract, defendants had not received any offers that they would accept unless plaintiff would agree to accept a lesser amount, the modification would have been sought in good faith. With this modification, there would have been an increased likelihood of a sale prior to April 1999. Thus, the modification would inure to the benefit of both plaintiff and defendants. Eighth North-Val Inc. v. Parkinson, supra, 773 A.2d at 1254. Such a modification would not have breached defendants’ obligation to refrain from doing anything that would destroy or injure plaintiff’s right to receive the fruits of the contract because of the likelihood that plaintiff would not be receiving any additional money if he did not agree to the modification.

Assume, instead, the evidence will show (as plaintiff alleges) that at the time defendants were seeking the modification, there was at least one offer that they expected to accept prior to April 1999 even if the agreement was not modified. Their purpose for approaching plaintiff was to pay a lesser amount than the amount that was provided for in their contract with plaintiff; it was not to pave the way for a transaction that would not otherwise have taken place.

In this instance, defendants would have breached their duty of good faith because through the modification, defendants were seeking to alter the bargain solely for their own benefit while indicating to plaintiff that plaintiff would also benefit from the modification.

I would reach the same result if this transaction had been governed by the Uniform Commercial Code. See e.g., id. at 1253-54, which applied the modification provisions of the Uniform Commercial Code to a financial transaction. Modification of a contract governed by the Uniform Commercial Code must meet the test of good faith: “The effective use of bad faith to escape performance on the original contract terms is barred, and the extortion of a ‘modification’ without legitimate commercial reason is ineffective as a violation of the duty of good faith.” U.C.C. §2209 cmt. 2, 13 Pa.C.S. §2209.

Plaintiff also alleges that the modification is unenforceable for failure of consideration. A promise is supported by consideration if it confers a benefit upon the promisor or causes a detriment to the promisee. Dahar v. Grzandziel, 410 Pa. Super. 85, 90, 599 A.2d 217, 219 (1991).

If there is a reasonable likelihood that defendants would not have sold the stock prior to April 1,1999 without an agreement of a $1 million cap, there is consideration for the July 14,1998 modification. If, on the other hand, defendants fully intended to sell the stock prior to April 1, 1999, even if paragraph 4 was not amended, there is no consideration for the modification. See e.g., Restatement (Second) of Contracts §73 cmt. c, Ulus. 4:

“(4) A, an architect, agrees with B to superintend a construction project for a fixed fee. During the course of the project, without excuse, A takes away his plans and refuses to continue, and B promises him an extra fee if A will resume work. A’s resumption of work is not consideration for B’s promise of an extra fee.”

Defendants rely on the Uniform Written Obligations Act of May 13, 1927, P.L. 985, 33 PS. §6, which provides that a written promise “shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound.” This Act does not apply because the case law construes this legislation only to remove lack of consideration as a ground for enforcing the contract. “Failure of consideration, on the other hand, goes to the heart of any claim based on an agreement and is always available as a defense to that claim.” McGuire v. Schneider Inc., 368 Pa. Super. 344, 350, 534 A.2d 115, 118 (1987). (citation omitted)

A lack of consideration means that no consideration was intended to pass. A failure of consideration means that consideration was intended, but not received. SKF USA Inc. v. W.C.A.B. (Smalls), 714 A.2d 496, 501 (Pa. Commw. 1998). The present case involves a failure of consideration because plaintiff intended for consideration to pass; plaintiff executed the agreement modifying paragraph 4 in order to receive money that he might not have otherwise received. If defendants were intending to sell the stock even if plaintiff did not modify the agreement, no consideration passed to plaintiff in return for his modifying the agreement.

Any other breach of contract claims raised in Counts V and VIII are dismissed. The breach of contract claims, if any, raised against Carol M. Weir are dismissed because she is not a party to the contract.

Claims for punitive damages are dismissed because Pennsylvania does not award punitive damages for a bad faith breach of contract. Johnson v. Hyundai Motor America, 698 A.2d 631, 639 (Pa. Super. 1997); Standard Pipeline Coating Co. Inc. v. Solomon & Teslovich Inc., 344 Pa. Super. 367, 375, 496 A.2d 840, 844 (1985). Claims for attorneys’ fees are dismissed because the parties’ agreements do not provide for the award of attorneys’ fees and there is no statute or rule providing for the award of attorneys’ fees. Gardner v. Clark, 349 Pa. Super. 297, 301, 503 A.2d 8, 10 (1986).

III.

I next consider Count VII — mistalce/fraud in the execution of the agreement.

Paragraph 4 of the April 1,1997 agreement covers only the “direct shares or the trust shares purchased hereunder.” It does not refer to the option shares. In Count VII, plaintiff alleges that the parties agreed that plaintiff would receive an amount equal to the sales price less $6.90 for the option shares as well as the other shares. Option shares were omitted from paragraph 4 because of a mistake and/ or defendants’ fraud in procuring execution of this agreement.

There are no factual allegations in the complaint that would support a finding that the agreement is the product of defendants’ fraud in procuring execution of the agreement.

Plaintiff is claiming a mistake on the part of both parties — i.e., both parties intended to execute a writing that included option shares in paragraph 4 of the April 1,1997 agreement. Section 155 of the Restatement (Second) of Contracts governs the reformation of a writing to reflect the actual agreement of the parties. This section reads as follows:

“Section 155. When mistake of both parties as to written expression justifies reformation

“Where a writing that evidences or embodies an agreement in whole or in part fails to express the agreement because of a mistake of both parties as to the contents or effect of the writing, the court may at the request of a party reform the writing to express the agreement, except to the extent that rights of third parties such as good faith purchasers for value will be unfairly affected.”

Plaintiff is entitled to pursue this claim. A mutual mistake will afford a basis for reforming a contract. However, the moving party is required to show the existence of a mutual mistake by evidence that is clear, precise, and convincing. West Conshohocken Restaurant Associates Inc. v. Flanigan, 737 A.2d 1245, 1248 (Pa. Super. 1999); Smith v. Thomas Jefferson University Hospital, 424 Pa. Super. 41, 45, 621 A.2d 1030, 1032 (1993).

IV.

I next consider defendants’ preliminary objections to Counts II (fraud/economic duress/coercion), Count III (negligent misrepresentation), and Count IV (conspiracy).

Plaintiff raises two fraud claims: (1) the failure to disclose and (2) the making of a false statement that defendants would not sell until April 1,1999, unless the agreement was modified.

I find no basis for the fraud claims based solely on a failure to disclose the nature, amount, and details of any offer. Plaintiff does not allege that he requested defendants to provide any information concerning offers from potential buyers. Plaintiff contends only that defendants had a duty to advise him of the current state of their negotiations with potential buyers.

I agree with defendants that plaintiff knew that defendants had received or were likely to receive offers that, if accepted, would result in plaintiff receiving more than $1 million under the provisions of the April 1997 agreement. Otherwise, there would have been no reason for defendants to have sought the amendment. Consequently, a fraud claim cannot be based on defendants’ failure to advise plaintiff that if plaintiff agreed to the modification they were likely to enter into such a transaction prior to April 1,1999 (i.e., a fraud claim cannot be based on a failure to disclose to a party what that party already knew).

In this case, defendants approached plaintiff at a time when they allegedly were in a position to sell the stock immediately through a transaction that would provide very substantial sums of money to plaintiff and defendants. However, defendants stated to plaintiff that they would not be selling the stock until April 1, 1999, or later unless the agreement was modified.

If the fact-finder determines that defendants, prior to the modification, had received or knew that they would receive offers that they would not turn down (i.e., they would not have waited, even if the April 1997 agreement was not amended, there has been a misrepresentation (the false statement that defendants will not be selling the stock prior to April 1999 unless plaintiff modifies the agreement) upon which plaintiff may have justifiably relied. See Germantown Manufacturing Co. v. Rawlinson, 341 Pa. Super. 42, 49, 491 A.2d 138, 142 (1985) (the requirement of materiality is usually met by showing that the misrepresentation would have been likely to have induced a reasonable person to make the contract). In addition, if there were outstanding or anticipated offers which plaintiff, under a reasonable person standard, would have believed that defendants would have accepted prior to April 1999 without an amendment to paragraph 4, defendants’ failure to describe the offers, coupled with the statement that without an agreement to accept a $1 million cap the stock will not be sold prior to April 1999, may constitute a fraudulent omission.

In their brief, defendants state “the very fact that the defendants proposed an amendment with such a high cap would have made it patently obvious to any reasonable person that the defendants had received or anticipated receiving an offer so substantial that it would have entitled Williams to more than $1,000,000 under the unamended agreement. The defendants’ request for the amendment was, effectively, a disclosure of the existence of an offer or offers.” (Defendants’ brief at 14.) I agree. Thus, plaintiff could not pursue a fraud claim if defendants had only sought a modification.

However, defendants did more. They made statements which were intended to cause plaintiff to believe that defendants had not received and did not anticipate receiving any offers that they could not resist unless the agreement was modified. The fraud claims that plaintiff may pursue arise out of these statements.

I am dismissing claims for counsel fees because there is no exception to the rule that each party is responsible for its own counsel fees which permits recovery of counsel fees in an action for fraud. Koffman v. Smith, 453 Pa. Super. 15, 34, 682 A.2d 1282, 1292 (1996); Pittsburgh Live Inc. v. Servov, 419 Pa. Super. 423, 430, 615 A.2d 438, 442 (1992). I am dismissing the punitive damage claim because the fraudulent conduct that supports an award of compensatory damages is insufficient to support an award of punitive damages without more; to justify an award of punitive damages, there must be “acts of malice, vindictiveness and a wholly wanton disregard of the rights of others.” Id. Plaintiff’s complaint does not describe such conduct.

I am dismissing the claims, if any, against Ms. Weir because she is not described as a participant in the fraud.

I am dismissing the duress/coercion claims. The alleged duress was of a purely economic nature and plaintiff does not allege that he did not have the opportunity to consult with counsel prior to signing the amendment. See Degenhardt v. Dillon Co., 543 Pa. 146, 157, 669 A.2d 946, 952 (1996); SKF USA Inc. v. W.C.A.B. (Smalls), supra, 714 A.2d at 501.

I am dismissing Count IV (conspiracy) except for the portion of the count that is based on those fraudulent misrepresentation claims that I am permitting plaintiff to pursue.

V.

I am sustaining defendants’ preliminary objections to Count I (action for declaratory relief) except for declaratory relief based on those breach of contract, reformation, and tort claims that I am permitting plaintiff to pursue.

ORDER

On October 2,2001, upon consideration of defendants’ preliminary objections, it is ordered that:

(1) defendant Carol M. Weir is dismissed as a party as to all claims;

(2) all claims for punitive damages and counsel fees are stricken;

(3) Count VI is dismissed with prejudice and Count IX is dismissed without prejudice; and

(4) plaintiff may pursue the claims in the remaining counts only to the extent permitted in the opinion which accompanies this order of court.

      . According to the complaint, there were approximately 270,000 outstanding shares of common stock of Ft. Pitt at this time. Defendants owned 157,880 shares (including the shares which plaintiff had sold to them). Complaint at 3-4, ¶¶16-17.

      . The case law holding that a fraudulent misrepresentation claim may not be based on the breach of a contract to do something in the future does not apply because plaintiff’s claim is not based on the breach of a promise to do something in the future. Instead, it is based on defendants inaccurately describing the current situation (i.e., at this time we have not received and do not anticipate any offers that we will accept unless paragraph 4 is modified).


source: Caselaw Access Project

author: COHEN, J.,

license: Public Domain

text:
    Lloyd v. Sysco of Philadelphia

      July 23, 2001

      Thomas M. Holland, for plaintiff.

      James N. Boudreau and Sean V. Burke, for defendants.
   COHEN, J.,

INTRODUCTION

On April 23, 2001, this court granted a non pros in favor of all defendants and against the plaintiff in this wrongful termination case.

Rather than file post-verdict motions, the non-prevailing plaintiff appealed this court’s entry of a non pros to the Superior Court on May 24,2001. Thereupon this court ordered that the plaintiff file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 11, 2001, the plaintiff filed what he characterized as a statement of matters complained of on appeal enumerating the legal issues on appeal as follows:

“(a) whether it was error for the trial court to dismiss plaintiff’s complaint upon plaintiff’s showing that he perfected service on defendants Sysco, Heildabrand and Young on June 22, 2000 when plaintiff’s counsel delivered three copies of the above-referenced civil action complaint to Sandra, a security guard in charge at Sysco;
“(b) whether it was error for the trial court to dismiss plaintiff’s complaint upon plaintiff’s showing that he properly effectuated service of the reinstated complaint on defendant Chris Young, c/o Sysco of Philadelphia on October 10, 2000.
“(c) whether it was an abuse of discretion for the trial court to overrule plaintiff’s preliminary objections where defendants failed to comply with Pennsylvania Rule of Civil Procedure 1026(a).”

DISCUSSION

The official docket in this matter shows that on September 25, 2000, the Honorable Patricia A. Mclnemey, a judge of this court, sustained the preliminary objections of defendant Sysco on the basis of improper service. Judge Mclnemey afforded the plaintiff the opportunity to reinstate and properly effectuate service upon Sysco. The plaintiff did that. Despite the filing of an affidavit of service, Sysco filed preliminary objections claiming it had not been served. Judge Mclnemey on February 7,2001 again sustained the preliminary objections of Sysco and dismissed the complaint against it, this time with prejudice. On February 2, 2001, the court had overruled the plaintiff’s preliminary objections to the preliminary objections of Sysco.

Plaintiff, in this wrongful termination case, had sued his former employer, Sysco Food Services of Philadelphia, as well as two supervisors — Ned Heildabrand and Chris Young. Heildabrand and Young filed preliminary objections alleging lack of service on February 23,2001. The plaintiff, on March 15, 2001, filed a response to the preliminary objections of the individual defendants. In his response, the plaintiff sought to overcome the clear message sent by the docket: the individual defendants had not been served. Plaintiff claimed that his counsel delivered three copies of his civil action to a security guard at Sysco on June 22, 2000. However, it was that means of service that prompted Judge Mclnemey to sustain Sysco’s preliminary objections. The plaintiff argued that “Judge Mclnerney did not rule on the sufficiency of service of individual defendants Heildabrand and Young, insofar as those defendants did not file preliminary objections at that time.” Plaintiff inferentially admits that service upon defendant Heildabrand was ineffective by submitting that “defendant Young was properly served on October 10, 2000.”

The docket controlled this court’s determination of April 23, 2001. While the plaintiff asked for a hearing during his appearance before the court on April 23, that request arrived as too little too late. As to the plaintiff’s further argument that the defendants violated a Rule of Civil Procedure, that argument is waived in that it does not appear in the pleadings of record.

In sum, the plaintiff’s recorded efforts to effect service in this matter do not even approach the efforts of the plaintiff in the case of Witherspoon v. City of Philadelphia, 564 Pa. 388, 768 A.2d 1079 (2001), the Pennsylvania Supreme Court’s most recent evaluation of what amounts to good service in Pennsylvania courts. This plaintiff’s efforts amount to a self-serving bouquet of ineffectual affidavits. This court, as well as his sister judge, had every reason under the facts and the law to sustain the preliminary objections of the defendants. The within appeal has no merit.


author: WARMAN, J.,

text:
    McClean v. O’Kelly

      C.P. of Fayette County,
    no. 535 of 2000 G.D.

      Timothy Kinney, for plaintiff.

      Francis Garger, for defendant.
    November 14, 2001
   WARMAN, J.,

Presently before this court for disposition is plaintiffs’ motion for leave to amend complaint wherein they request this court’s permission to file an amended complaint and include therein a request for punitive damages. In consideration of the record, applicable law, briefs and submissions of counsel, and for reasons more fully discussed herein, plaintiffs’ motion is granted.

BACKGROUND

Plaintiffs initiated the instant medical malpractice action by filing a writ of summons in the Court of Common Pleas of Fayette County on March 4, 2000. Thereafter, on or about May 12, 2000, plaintiffs filed a complaint against defendant, wherein they allege that plaintiff husband’s primary care physician, Dr. Tiberio, referred him to defendant for complaints relating to blood in his urine. After the referral, on March 18, 1998, defendant operated on plaintiff husband to remove a bladder tumor and performed a cystoscopy. Defendant also took two biopsies. On or about March 20, 1998, defendant informed plaintiff husband that the tumor was malignant. However, plaintiffs allege that the surgical pathology report of Dr. Manuel Pelaez M.D., revealed that the tumor was benign.

On March 24, 1998, defendant performed a second cystoscopy on plaintiff husband and took another biopsy that was analyzed at the Uniontown Hospital. Plaintiffs allege that on March 30,1998, defendant then informed plaintiff that the tumor was, in fact, benign.

Plaintiffs further allege that despite the medical attention and treatment he received, he was continuing to bleed and experience sediment in his urine. Plaintiffs contend that on April 1, 1998, defendant performed a third cystoscopy and cauterized an area of inflammation on plaintiff husband. However, samples of plaintiff husband’s urine continued to reveal the existence of sediment in his urine.

Defendant then referred plaintiff husband to the Uniontown Hospital for a boric acid type cleansing. Plaintiff, however, continued to experience problems with both blood and sediment in his urine as well as problems associated with the blockage of his urethra rendering him unable to urinate and necessitating multiple catheterizations.

Plaintiffs allege that, on June 20,1998, defendant performed a fourth cystoscopy, another catheterization, a procedure utilizing a rubber dilater on the urethra, and cleansed plaintiff husband’s bladder and urethra. They further allege that defendant then informed them that everything “should be fine.” However, plaintiff husband continued to experience problems associated with blood and sediment in his urine and blockage of his urethra causing him to visit the Highlands Hospital Emergency Room on several occasions.

On July 6,1998, plaintiff husband saw Dr. O’Donnell for a second opinion. Upon examination, Dr. O’Donnell determined that plaintiff husband had a hole in his bladder with drainage from the colon to the bladder. A corrective procedure was scheduled for the next day at Presbyterian Hospital in Pittsburgh, Pennsylvania. On July 7, 1998, Dr. O’Donnell completed the corrective procedure and referred plaintiff husband to Dr. Simone for resection of the colon, which was performed on July 14, 1998.

In all, plaintiff husband had to undergo nine cystoscopy procedures, 16 catheterizations, two hospital admissions, three emergency room visits, a week of home health care nursing and 16 separate office visits. Plaintiffs allege that defendant acted in a negligent, reckless and careless manner in failing to properly diagnose and treat plaintiff husband’s medical condition and that they suffered damages and injuries as a result thereof.

On May 26, 2000, defendant filed preliminary objections to plaintiffs’ complaint wherein he objected to plaintiffs’ use of the word “reckless” in paragraph 43. Paragraph 43 states as follows:

“(43) Defendant, Dr. O’Kelly, also acted in a negligent, reckless and careless manner in informing the plaintiffs that plaintiff Gary McClean, had a malignant tumor when he knew or should have known that the tumor was benign.”

Defendant argued that use of the word “reckless” violated Pa.R.C.P. 1019(a) because plaintiffs failed to request punitive damages, and because they failed to plead facts sufficient to support an award of punitive damages. We, however, disagreed and believed instead that the allegations contained in plaintiffs’ complaint, if proven, could permit, a jury to find defendant’s conduct sufficient for an award of punitive damages. We, therefore, concluded that the word “reckless” as contained in plaintiffs’ complaint did not violate Pa.R.C.P. 1019 (a). However, because plaintiffs did not request punitive damages, we found it unnecessary to include such an allegation and we, therefore, sustained defendant’s preliminary objection thereto and ordered the same stricken from plaintiffs’ complaint.

Plaintiffs now seek to amend their complaint to include therein a request for punitive damages. Plaintiffs claim that a request of punitive damages merely amplifies their claim for relief. Defendant objects to plaintiffs’ motion and argues that the same should be denied because plaintiffs seek to introduce a different theory and/ or a different kind of negligence than that previously raised in the original complaint, thereby averring a new cause of action beyond the expired statute of limitations.

DISCUSSION

The issue for this court to determine is whether plaintiffs’ requested amendment seeks to introduce a new cause of action that is time-barred. Pa.R.C.P. 1033 — Amendments — provides:

“A party, either by (1) filed consent of the adverse party or (2) by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.”

Generally, the allowance of amendments to complaints is within the sound discretion of the trial court. Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 516 A.2d 299 (1986). Despite the presumption in favor of liberal amendment, the right to amend is not absolute. Grim v. Betz, 372 Pa. Super. 614, 539 A.2d 1365 (1988). The court must refuse an amendment where it is not proper to do so. City of Philadelphia v. Spencer, 139 Pa. Commw. 574, 591 A.2d 5 (1991). The general rule is that an amendment will not be permitted after the statute of limitations has run, if it introduces a new cause of action. See Boarts v. McCord, 354 Pa. Super. 96, 511 A.2d 204 (1986).

A new cause of action does not exist if plaintiffs’ amendment merely adds to or amplifies the original complaint or if the original complaint states a cause of action showing that plaintiff has legal right to recover what is claimed in the subsequent complaint, but a new cause of action does arise if amendment proposes a different kind of negligence than previously raised or if operative facts supporting claim are changed. See Reynolds v. Thomas Jefferson University Hospital, 450 Pa. Super. 327, 676 A.2d 1205, reargument denied, (June 21, 1996), allocatur denied, 549 Pa. 703, 700 A.2d 442 (1997).

Here, the amendment that the plaintiffs propose to make is to include a request for punitive damages. Punitive damages are available in cases where the defendant has acted tortiously in an extremely outrageous manner, and are awarded to deter him and others from such future conduct. Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986). Punitive damages are awarded when the conduct of the defendant is more serious than the mere commission of the tort. Geyer v. Steinbronn, 351 Pa. Super. 536, 506 A.2d 901 (1986). When deciding whether to award punitive damages the fact-finder must look at the character of the act, and all of the circumstances, including the mental state and motive of the wrongdoer, the relations of the parties, and the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause. Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 555 A.2d 800 (1989).

Further, Pennsylvania has adopted the guidelines of section 908 of the Restatement (Second) of Torts regarding the imposition of punitive damages. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). An essential fact needed to plead a claim for punitive damages is that the defendant’s conduct must have been outrageous. Outrageous conduct is an “act done with a bad motive or with a reckless indifference to the interests of others.” Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970), citing comment (b) to section 908 of the Restatement (Second) of Torts. Moreover, comment (b) to section 908 provides that “punitive damages are not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence.”

Applying the law to the facts of this case, we conclude that plaintiffs’ proposed amendment does not state a new cause of action. We believe, as stated in our opinion entered on August 21,2000, that the allegations contained in plaintiffs’ complaint, if proven, could permit a jury to find defendant’s conduct sufficient for an award of punitive damages. Plaintiffs are not proposing a different theory or a different kind of negligence than that alleged in the original complaint. Further, plaintiffs are not seeking to add any new facts or allegations to their cause of action, but merely seek an addendum to their recovery clause. We, therefore, grant plaintiffs’ motion to amend.

ORDER

And now, November 14,2001, in consideration of the plaintiffs’ motion to amend, and in further consideration of the record, applicable law, and submissions of counsel, plaintiffs’ motion is hereby granted.


author: TEMIN, J.,

text:
    Cruz v. Northeastern Hospital

      Anne E. Pedersen, for plaintiffs.

      Edward C. Mintzer Jr., for defendant Northeastern Hospital.

      Kevin H. Wright, for defendant Shin.

      June 11, 2001
   TEMIN, J.,

FACTS AND PROCEDURAL HISTORY

This is a medical malpractice action filed by the parents of Adam Omar Cruz on behalf of themselves and Adam, a minor, against Northeastern Hospital, Dr. Myung Hyo Shin M.D., and Dr. Robert L. Cogan M.D., both of whom specialize in obstetrics and gynecology. Plaintiff, Jacqueline Nieves Cruz sought care from Dr. Shin and Dr. Cogan at Northeastern Hospital in January of 1992. On August 11, 1992, Ms. Cruz went to the emergency room at Northeastern Hospital because she had been experiencing some contractions. She was examined and released on that day. On the morning of August 12,1992, Ms. Cruz again went to the emergency room at Northeastern Hospital because she was leaking fluid and was experiencing contractions, but was again released. Late on August 12,1992, she again appeared at the emergency room of Northeastern Hospital complaining of fluid leakage and mild contractions and was admitted. Her fluid leak was found at that time to be positive for amniotic fluid. Shortly after her admission she was placed on a fetal heart monitor. On the morning of August 13,1992, Ms. Cruz was placed on Pitocin by Dr. Cogan. Later in the day Dr. Cogan discontinued the Pitocin and told Ms. Cruz to ambulate the hospital floor. In the evening of August 13, 1992, Ms. Cruz was given a sedative and told to rest overnight. At 6 a.m. there was a spontaneous rupture of the membranes with clear amniotic fluid. Pitocin was restarted at 9 a.m. along with intravenous sedation. At 3 p.m. it was noted that Ms. Cruz had a ternperature of 102.1 degrees, but Dr. Shin elected to treat this after delivery. At 7:13 p.m. the baby was bom by spontaneous vaginal delivery. At birth Adam required resuscitation and a foul smelling liquid was noted, as was a cephalhematoma. The following morning Adam was transferred to St. Christopher’s Children’s Hospital because of suspected seizure activity.

At the time of trial Adam was being given medication to treat his seizures, but was occasionally suffering breakthrough seizures. He is developmentally delayed both physically and cognitively and at last testing had a full scale IQ of 52, which is in the mild to moderate intellectually deficient range.

The case was tried by this court and a jury which returned a verdict in favor of plaintiff and against Northeastern Hospital in the amount $10,811,431 on August 3, 2000. The jury found in favor of Dr. Cogan and Dr. Shin. The claims by Jacqueline Nieves Cruz and Oscar Cruz in their own right were withdrawn prior to the case being sent to the jury.

Plaintiffs filed a motion for delay damages on August 10,2000, requesting the verdict be molded to reflect delay damages in the amount of $5,386,255.06 for a total verdict of $16,197,686.33. Defendant filed a response, plaintiffs filed a reply and defendant filed a supplemental answer to plaintiffs’ reply. On December 18, 2000 this court entered an order for delay damages in the amount of $4,368,899.38 and molded the verdict to a total verdict in the amount of $15,180,330.65. Post verdict motions were subsequently denied. This appeal followed.

THE POST VERDICT MOTIONS

Northeastern argues that it is entitled to judgment n.o.v. because:

(1) The court erred in admitting the expert testimony by Warren E. Cohen MD. as to the cause of Adam’s brain injury and;

(2) The court erred in admitting the testimony of Dr. Michael Goodman as to standard of nursing care.

Northeastern argues that it is entitled to a new trial because:

(1) The court erred in its charge on the spoliation of evidence;

(2) The court erred in permitting the jury to view enlarged medical records during deliberations;

(3) The court erred in instructing the jury on increased risk of harm;

(4) The court erred in not giving an adverse inference charge as to Marie Rosato;

(5) The court erred in permitting an inconsistent verdict to stand;

(6) The court erred in not admitting evidence of a criminal conviction of plaintiffs’ expert, Michael C. Goodman;

(7) The court erred in not permitting recross-examination;

(8) The court erred in permitting the testimony of Dr. Brown, Dr. Cohen, Dr. Koffler and Dr. Buchanan.

(9) The court erred in refusing to grant a continuance because the Republican Convention was being held in Philadelphia during the trial;

(10) The court erred in overruling defendant’s objection to plaintiffs’ rebuttal argument;

(11) There was insufficient evidence to support the verdict; and

(12) The award of compensatory damages was gross and excessive.

In her post-trial motions plaintiff argues that she is entitled to judgment n.o.v. with respect to Cogan and Shin.

JUDGMENT N.O.V.

1. Expert Testimony of Dr. Cohen

This court did not err in permitting plaintiffs’ expert, Dr. Warren Cohen, to present expert testimony as to causation. The admission or exclusion of evidence, including the admission of testimony from an expert witness, is within the sound discretion of the trial court and will only be reversed upon a showing that the trial court clearly abused its discretion or committed an error of law. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party. Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 664 A.2d 525 (1995); Bindschusz v. Phillips, 771 A.2d 803 (Pa. Super. 2000); McClain ex rel. Thomas v. Welker, 761 A.2d 155 (Pa. Super. 2000). The Pennsylvania Supreme Court has repeatedly held that the standard for evaluating the qualifications of an expert witness under Pennsylvania law is a liberal one:

“The test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.” Miller v. Brass Rail Tavern, supra, at 480-81, 664 A.2d at 528 (emphasis in original); Bindschusz v. Phillips, supra.

The record here shows that Cohen is a graduate of Jefferson Medical College in Philadelphia, trained in pediatrics at Albert Einstein Medical College in New York and Montefiore Hospital Medical Center in New York in pediatrics and child neurology, served as a consultant for pediatric neurology problems for patients hospitalized at the NIH and completed a full program of training in genetics at NIH. Further, Cohen is certified by the American Board of Pediatrics, American Board of Psychiatry and Neurology with a special certification in child neurology and by the American Board of Medical Geneticists. Dr. Cohen was qualified to testify as an expert in pediatric neurology.

Cohen testified that Adam’s neurological disorder was related to the brain injury sustained around the time of birth and that there were several occurrences each of which contributed to the damage to Adam’s brain — asphyxia, sepsis, acidosis and hemorrhage in the brain which caused thousands of cells in Adam’s brain to die. Dr. Cohen’s report, which is based on a complete examination of the medical records, fully supports the conclusion he reached in his testimony, that the cause of Adam’s neurological problems was hypoxic-ischemic brain injury.

With respect to this causation testimony, defendant cannot seriously argue that there is no support for the statement that hypoxic-ischemic brain injury can be a cause of the type of neurological problems from which Adam suffers. Dr. Leonard J. Grazoni, defendant Northeastern Hospital’s pediatric neurology expert, acknowledged in his testimony that hypoxic-ischemic brain injury can cause neurological impairment, but presented his opinion that in this case the hypoxic-ischemic brain injury was not sufficiently severe to produce Adam’s symptoms.

■ Judgment n.o.v. can be entered only if the movant is entitled to judgment as a matter of law or if evidence is such that no two reasonable minds could disagree that the verdict was improper. A trial court’s denial of a motion for judgment n.o.v. will be reversed only when there is an abuse of discretion or an error of law that controlled the outcome of the case. B & L Asphalt Industries Inc. v. Fusco, 753 A.2d 264 (Pa. Super. 2000); Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999). The standard to be used here is whether, even with all factual inferences decided adversely to the movant, the law nonetheless requires a verdict in its favor. Whittington v. Episcopal Hospital, 2001 WL 114942 (Pa. Super.); Robinson v. Upole, 750 A.2d 339 (Pa. Super. 2000).

2. Testimony of Dr. Goodman

It was not error to permit Dr. Goodman to discuss and address nursing standards of care. In the instant case, the negligent care at issue is the failure of the nursing staff to properly monitor the plaintiff and the fetal heartbeat during labor. The evidence establishes that Dr. Goodman graduated from the Georgetown University school of medicine, that he did a four-year residency in obstetrics and gynecology, that he is board certified in obstetrics and gynecology, that he is chairman of the department of obstetrics and gynecology at Laurel Hospital in Maryland, that he has developed protocols for obstetric physicians and nursing personnel and that he has had substantial experience in reading fetal monitoring strips. The doctor’s testimony concerned the medical reasons that this monitoring was necessary and established the causal nexus between the nurses’ failure to monitor and report the baby’s distress to the doctors and the harm done to him. Dr. Goodman has sufficient expertise to testify concerning the duty of the nursing staff to monitor the baby and to report the distress of the child to the doctors.

The testimony of both Dr. Cohen and Dr. Goodman was properly admitted, there is no error of law and Northeastern is not entitled to judgment n.o.v. on this basis.

MOTION FOR A NEW TRIAL

1. Jury Charge on Spoliation

Under Pennsylvania law, a party cannot benefit from its own withholding or spoliation of evidence. Schroeder v. PennDOT, 551 Pa. 243, 710 A.2d 23 (1998); Duquesne Light Company v. Woodland Hills School District, 700 A.2d 1038 (Pa. Commw. 1997). The doctrine of spoliation permits a jury to infer that the “spoiled” evidence would have been unfavorable to the position of the spoliator. Duquesne Light Company v. Woodland Hills School District, supra. Accordingly, where evidence has been destroyed, referral of the spoliation issue to a jury with accompanying instructions is the proper and advisable course of action. In Schroeder v. PennDOT, supra, the Pennsylvania Supreme Court approved the use of an adverse inference jury instruction in cases where, a party has either spoliated or destroyed evidence which is material to the outcome of the litigation. The court used a three-prong test to determine whether a jury should be given instructions on the spoliation inference: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party, and where the offending party is seriously at fault, will serve to deter such conduct by others in the future.

The record shows that Cruz was admitted to the hospital in the evening of August 13, 1992, at which time Dr. Shin administered Pitocin and ordered that she be placed on a fetal monitor. Dr. Shin testified that he intended that the monitoring continue until Pitocin was no longer being administered to Cruz. At 7 p.m., Cruz was moved to the delivery room and Pitocin was stopped. Plaintiffs requested a spoliation charge on the ground that some of the fetal monitoring strips for the time period between 5 p.m. and 7 p.m., when Cruz was brought to the delivery room, were either altered or destroyed. A review of the fetal monitoring strips reveals that there are only two panel numbers between the hours of 5 p.m. and 6 p.m. when the monitor had previously been running at a rate of nine panel numbers per hour. If the monitor continued to run at the same rate of speed as it had during the hours before 5 p.m., then the strip actually ends at 5:45 p.m. One could conclude from this information that someone either altered the strips or destroyed some of the strips which monitored the baby’s heartbeat between the hours of 5:45 and 7 p.m.

Further, the fetal monitoring strips were material evidence to the plaintiffs because the fetal monitoring strips for the hours in question, constituted crucial evidence concerning the stress caused to the baby by allowing Cruz’s labor to continue in a case where the plaintiffs charged that the brain damage to the child was the result of the delay in his delivery.

The issue of spoliation was properly submitted to the jury and Northeastern is not entitled to a new trial on this basis.

2. Jury’s View of Enlarged Exhibits

There is no basis in law for defendant’s claim that the court erred in permitting the jury to view enlarged copies of the plaintiffs’ exhibits in response to jury questions during the course of deliberations. Pursuant to Rule of Civil Procedure 223.1(c)(3), the court may make exhibits available to the jury during its deliberations. 42 Pa.C.S., Rule 223.1. The jury here asked to see the fetal monitoring slips, Dr. Cogan’s addendum note, the labor progress report, the emergency room notes from August 12, and nurses’ notes from August 13 and 14. These enlarged exhibits were placed upright on the benches in the courtroom and the jury was brought into the courtroom and permitted to view them. All of these enlarged exhibits, had been introduced at trial without objection from defense counsel. Accordingly, there is no basis for objecting to the jury’s view of them at their request during deliberations.

3. Charge on Increased Risk of Harm

Defendant’s contention that the court erred in charging on increased risk of harm because plaintiffs’ expert testimony was not sufficient to justify the instruction is without merit. The theory of the case was that the defendants failed to properly monitor Ms. Cruz’s labor, unduly prolonged it and thereby increased the risk that the fetus would suffer harm. The evidence here showed that labor was prolonged, that the fetal monitor indicated the baby was in distress for some time before Ms. Cruz was taken to the delivery room, that there was a gap in the fetal monitoring, and that the baby suffered hypoxic-ischemic brain injury during labor.

It is well settled that “[a]n inadequate jury instruction may amount to reversible error if it has a tendency to mislead the jury or if it omits material, which is basic and fundamental.” Clementi v. Procacci, 762 A.2d 1086, 1092 (Pa. Super. 2000); McClintockv. Works, 716 A.2d 1262, 1264 (Pa. Super. 1998). Although a trial court need not use the specific language requested by a party, its words must sufficiently and fully convey the rules of law applicable to the case. Clementi v. Procacci, supra. In determining whether to reverse a jury verdict due to an erroneous jury charge, this court must look at the jury charge as a whole. Thomas v. E.B. Jermyn Lodge No. 2, 693 A.2d 974 (Pa. Super. 1997); Chanthavong v. Tran, 452 Pa. Super. 378, 682 A.2d 334 (1996).

Here the court charged the jury, using the standard charge, as follows:

“The medical professional is legally responsible or liable for the injuries suffered by his or her patient if the defendant’s negligent conduct is a legal cause of those injuries.
“In order for the negligent conduct to be a legal cause, that conduct must have been a substantial factor in bringing about the injuries in question.
“If the injuries in question would have been sustained even if the medical professional had not been negligent, then the negligent conduct of the medical professional would not be a substantial factor in causing the injuries in question.
“Stated differently, the negligent conduct of a medical professional is a substantial factor in causing the patient’s injuries if those injuries would not have been sustained had the medical professional not acted in a negligent manner.
“When a medical professional negligently fails to act, or negligently delays in employing indicated diagnostic or therapeutic measures, and his or her negligence is a substantial contributing factor in causing injuries to the patient, the plaintiff patient does not have to prové to a certainty that proper care would have, as a medical fact, prevented the injuries in question.
“If a medical professional’s negligent action or inaction has effectively terminated the patient’s chances of avoiding injuries, the medical professional may not raise conjectures as to the measure of the chances that he or she has put beyond the possibility of realization. If there was any substantial possibility of avoiding injuries and the medical professional defendant has destroyed that possibility, he or she is liable to the plaintiff.
“A causal connection between the injuries suffered and the medical professional defendant’s failure to exercise reasonable care may be proved by evidence that the risk of incurring those injuries was increased by the medical professional’s negligent conduct. The law recognizes that it is rarely possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass.”

The charge given by this court was warranted by the evidence and correctly conveyed the rules of law applicable to these circumstances.

4. Adverse Inference Charge As to Mrs: Rosato

When a potential witness is available to only one of the parties to a trial, and it appears this witness has special information material to the issue, and this person’s testimony would not be merely cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference it would have been unfavorable. Bennett v. Sakel, 555 Pa. 560, 725 A.2d 1195 (1999); Commonwealth v. Moore, 453 Pa. 302, 309 A.2d 569 (1973); Kovach v. Solomon, 732 A.2d 1 (Pa. Super. 1999). While Maria Rosato was arguably in control of the plaintiffs, the information which she possessed, concerning what occurred in the delivery room was not material to this case. The contention here was that the injury to plaintiff occurred during Ms. Cruz’s prolonged labor before she was taken to the delivery room and did not occur during delivery. Defendant was not entitled to an adverse inference charge with respect to this witness.

5. Inconsistent Verdict

It is well established law in Pennsylvania that there is a presumption of consistency with respect to a jury’s findings which can only be defeated when there is no reasonable theory to support the jury’s verdict. Fillmore v. Hill, 445 Pa. Super. 324,665 A.2d 514 (1995); Giovanetti v. Johns-Manville Corp., 372 Pa. Super. 431, 539 A.2d 871 (1988). In the instant case there was evidence that the plaintiff’s injury was caused by the failure of Northeastern’s nursing staff to follow the instructions of the doctors and to properly monitor the plaintiff during a prolonged period of labor. Thus, it was not unreasonable for the jury to find that Shin and Cogan were not responsible for the injury suffered by plaintiff because it was the nurses’ failure to follow the doctors’ instructions and to properly monitor the plaintiff that caused the injury. The verdict was not inconsistent and Northeastern is not entitled to a new trial on this basis.

6. Conviction of Dr. Goodman

Dr. Goodman was convicted of falsifying hospital records in Virginia during the time he was in medical school. This conviction had no relevance to Dr. Goodman’s qualifications as an expert. Further, the evidence shows that it was more than 10 years old at the time of this trial and had been expunged. Accordingly, Dr. Goodman had no criminal conviction and none could be admitted.

7. Court’s Refusal to Permit Recross-Examination

Defendant next argues that the court erred in not permitting recross-examination and claims that this is a “violation” of Pennsylvania Rule of Evidence 611. Pursuant to Pennsylvania Rule of Evidence 611:

“The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time and (3) protect witnesses from harassment or undue embarrassment.”

The scope and manner of cross-examination are within the trial court’s discretion, and that discretion will not be disturbed absent its abuse or an error of law. Collins v. Cooper, 746 A.2d 615 (Pa. Super. 2000); Commonwealth v. Wilson, 538 Pa. 485, 506, 649 A.2d 435, 445 (1994).

Specifically, defendant claims that he was prejudiced by not being permitted to recross-examine Dr. Goodman when “new medical issues” — fetal jeopardy, late deceleration entries, electronic fetal monitoring, acidosis and the 24-hour timing of delivery — were raised during redirect examination. The record shows, however, that counsel did, in fact, question Dr. Goodman concerning all these issues during cross-examination. Here the court’s ruling avoided needless repetition and the defendant suffered no prejudice as a result. Defendant is not entitled to a new trial on this basis.

8. Testimony of Dr. Brown, Dr. Cohen, Dr. Koffler and Dr. Buchanan

It was not error to permit Dr. Brown, Dr. Cohen, Dr. Koffler and Dr. Buchanan to testify at trial in spite of an alleged discovery violation by the plaintiff in supplying their supplemental reports to the defense just prior to jury selection. The decision to sanction a party for a discovery violation is a matter vested in the discretion of the trial court. Wolloch v. Aiken, 756 A.2d 5 (Pa. Super. 2000); Croydon Plastics Co. v. Lower Bucks Cooling & Heating, 698 A.2d 625 (Pa. Super. 1997), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998). Rule 4003.5 governs the disclosure of an expert’s facts and opinions otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial. If the identity of an expert witness is not disclosed, Rule 4003.5(b) authorizes sanctions, such as preclusion of the proposed expert’s testimony. 42 Pa.C.S., Rule 4003.5. In Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986) the Pennsylvania Supreme Court specifically abandoned the concept of mandatory preclusion in this context, holding that Rule 4003.5 requires the trial court to balance carefully the facts and circumstances of the case to determine the prejudice to each party caused by the discovery violation. The multi-factor approach espoused in Feingold, supra at 574, 517 A.2d at 1273, involves several basic considerations: “(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling [undisclosed] witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court, and (4) bad faith [or] willfulness in failing to comply with the court’s order.”

In the case at bar the record shows that all of the reports were merely updates of the reports prepared for the original trial date which was in 1994 and contained no material not already known to the defense. Accordingly, Northeast was neither surprised nor prejudiced by receiving these reports two days before jury selection and is not entitled to a new trial on this basis.

9. Court’s Refusal To Grant Continuance

Northeastern’s claim that the court erred in refusing to grant a continuance because the plaintiffs’ four supplemental expert reports were supplied on the eve of trial is without merit for the reasons set forth in the previous paragraph. Further, there was no need to grant a continuance because of the fact that the Republican Convention was being held in Philadelphia during the week of the trial. On the one or two occasions during which testimony could not be heard because of demonstrations outside the courtroom window, court was recessed until the noise subsided. The allegations as to the limitations of the jury pool, the “constant interruptions” of the trial, the “disruption” of the trial by demonstrations outside City Hall and the “distractions” of the jury have no basis in fact and will not be further discussed.

10. Objection to Plaintiffs’ Rebuttal Argument

This court did not err in overruling Northeastern’s objection to plaintiffs’ closing rebuttal argument in which she said:

“Mr. Mintzer came up here and told you about all the things that were going on or he believes [were going on] once that tracing stops here. And he listed thing[s]. Please search your memories because at the time he started listing all these things that he thought was [sic] happening during that time period there is not one person who testified to that from the witness stand. Not one, who said, well, here’s what happened during that time. I work at Northeastern and here’s what I’m doing during that time. Nobody said that to you. Mr. Mintzer said that to you, but he didn’t bring anybody here. He said this case was important to Northeastern Hospital.”

This was a proper response to defense counsel’s attempt to explain the fact that there was no fetal monitoring between 5:45 and 7 p.m. by speculating that plaintiff was being prepped for delivery during that time. Plaintiffs’ counsel was correct in reminding the jury that there was no such evidence on the record. Defendant’s objection to this rebuttal argument was properly overruled and he is not entitled to a new trial on this basis.

11. Sufficiency of the Evidence

When reviewing a jury’s verdict, the court must view the evidence in the light most favorable to the verdict winner. Boutte v. Seitchik, 719 A.2d 319 (Pa. Super. 1998). A new trial is warranted only where the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and should not be granted because of a mere conflict in testimony. Hixson v. Barlow, 723 A.2d 716 (Pa. Super. 1999). Viewing the evidence in the case at bar in the light most favorable to the verdict winner, it is clear that it was sufficient to sustain the verdict. The record in the instant case discloses that the verdict is sustained by the weight of the evidence. Therefore, Northeastern’s request for a new trial on this ground is without merit.

12. Damages

Judicial reduction of a jury award is appropriate only when the award is plainly excessive and exorbitant. The question 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. Haines v. Raven Arms 536 Pa. 452, 640 A.2d 367 (1994); Carminati v. Philadelphia Transportation Co., 405 Pa. 500, 509, 176 A.2d 440, 445 (1962).

The evidence here demonstrates that Adam will never be able to obtain a high school diploma, will never be able to care for himself and will not be able to live independently. Plaintiffs’ life care expert, Lorraine Buchanan R.N., testified that the lifetime cost of caring for Adam is $5,679,924.50. Plaintiffs’ vocational expert, Dr. Mark Lukas, testified that Adam is unemployable. Dr. Brian B. Sullivan, plaintiffs’ forensic economist, testified that lost lifetime earnings for Adam amount to between $1,513,410 and $3,083,775. Thus, there was substantial evidence to support the jury’s award of $ 10,811,431. The jury’s verdict was fair and reasonable and Northeastern is not entitled to either reduction of the damage award or to a new trial on this basis.

The defendant’s post verdict motion was properly denied.

PLAINTIFFS’ CROSS-MOTION

In her post-trial motions plaintiff argues that she is entitled to judgment n.o.v. with respect to Cogan and Shin because the verdict in favor of Shin and Cogan is inconsistent with the verdict against Northeastern. It is well established law in Pennsylvania that there is a presumption of consistency with respect to a jury’s findings which can only be defeated when there is no reasonable theory to support the jury’s verdict. Fillmore v. Hill, 445 Pa. Super. 324, 665 A.2d 514 (1995); Giovanetti v. JohnsManville Corp., 372 Pa. Super. 431, 539 A.2d 871 (1988). In the instant case there was evidence that the plaintiff’s injury was caused by the failure of Northeastern’s nursing staff to follow the instructions of the doctors and to properly monitor the plaintiff during a prolonged period of labor. Thus, it was not unreasonable for the jury to find that Shin and Cogan were not responsible for the injury suffered by plaintiff because it was the nurses’ failure to follow the doctors’ instructions and to properly monitor the plaintiff that caused the injury. The verdict was not inconsistent and plaintiffs are not entitled to judgment n.o.v. on this basis.

Plaintiffs’ post verdict motion was properly denied.


author: BLACK, J.,

text:
    Klingman v. Klingman

      C.P. of Lehigh County,
    no. 1998-FC-1182.

      John P. Karoly, for plaintiff.

      Linda Shay Gardner, for defendant.
    August 16, 2001
   BLACK, J.,

This matter is before the court on the petition of plaintiff Jean C. Klingman-Madeira (Mother) for permission to relocate to Fayetteville, North Carolina, with her 7-year-old son, Joshua Klingman. The child’s father, defendant Paul E. Klingman Jr. (Father), objects to the proposed relocation. He has filed a cross-petition to modify the existing custody order so that he will have primary physical custody of Joshua in the event that Mother moves to North Carolina.

A hearing was held on July 24-25, 2001, at which the parties, their current spouses, various family members and friends, and two psychologists testified. On August 3, 2001,1 interviewed the child in the presence of counsel for the parties and the guardian ad litem.

Based on the evidence presented, I find that the best interests of the child require that the petition to relocate be denied. Mother has indicated that if her petition to relocate were denied, she would not move to North Carolina. Therefore, Father’s cross-petition for primary physical custody is moot.

FINDINGS OF FACT

(1) The parties were married in December of 1980.

(2) The parties are the natural parents of a minor child, Joshua Klingman, who was bom on November 20,1993.

(3) The parties are also the natural parents of an adult child, Paul Klingman III, age 20, currently a college student at Carnegie Mellon University in Pittsburgh, Pennsylvania. Paul spends his school vacations with Father.

(4) The parties had a third child, Adam, who passed away at age 4 in 1994, when Joshua was just over a year old.

(5) Following Adam’s death, the parties drifted apart, leading eventually to Father’s departure from the marital residence in February or March of 1998 and the entry of a divorce decree on September 1,1999. Although the parties lived under the same roof until 1998, they did not live together as a couple from 1996 on.

(6) On July 29,1999, the parties entered into an agreement that was incorporated, but not merged into the divorce decree. The agreement provided, inter alia, for shared legal custody of Joshua; for Mother to have primary physical custody; and for Father to have partial physical custody three weekends a month from Friday through Sunday and also one evening during the week so long as it was coordinated with Mother’s work schedule.

(7) Since the parties’ separation and even after their July 29, 1999, written agreement, they communicated regularly with each other regarding the custody arrangements and worked out a flexible schedule that changed from month to month to best accommodate their child’s needs and their work schedules. When the opportunity arose for Mother to take Joshua with her on a monthlong trip to Africa in January 2000, Father agreed even though it meant giving up his custodial rights that month.

(8) As a result of the parties’ flexible custody arrangements prior to the relocation petition, Joshua spent 98 overnights with Father from June to December 1998; 176 overnights with Father in 1999; and 168 overnights with Father in the year 2000.

(9) This high level of cooperation, for which both parties are to be commended, ended with the filing of Mother’s petition for relocation. Since then, at Father’s insistence, they have adhered strictly to the terms of the July 29, 1999 written agreement.

(10) Mother married Robert Madeira in April of 2000. Dr. Madeira is a medical doctor who recently completed his internship in internal medicine at Lehigh Valley Hospital.

(11) Father married Mary Klingman on September 30, 2000. Mrs. Klingman operates her own business, a cleaning service.

(12) Mother resides with Dr. Madeira at the parties’ former marital residence, 5574 Ohls Lane, Coopersburg, Lehigh County, Pennsylvania. The property is a single-family home and has been Joshua’s primary residence since his birth. It is located in the Southern Lehigh School District.

(13) Father has resided with his wife at 5017 Lanark Road, Center Valley, Lehigh County, Pennsylvania, since April of 2000. The property is also a single-family home located in the Southern Lehigh School District. Joshua has his own separate bedroom for those occasions when he stays overnight with Father.

(14) Mother is a registered nurse and has been employed at Lehigh Valley Hospital in this capacity for the past 18 years. At the time of the parties’ separation she worked a full weekend shift at the hospital.

(15) In the fall of 1999, Mother reduced her employment to 24 hours a week over two days, so that she could have more time at home with Joshua and also so that she could return to school to complete her studies for a bachelor’s degree. Mother’s academic status currently is that of a college junior.

(16) Father is self-employed, being the owner and operator of Klingman’s Custom Floors Inc., a retail floor covering business that he started in 1990. His usual work hours are Monday through Friday from 8:30 a.m. to 4:30 or 5 p.m. Occasionally he also does some work on a Saturday. Father has two employees in his business, which gives him some flexibility to spend time with Joshua during the week, if circumstances require.

(17) Joshua is currently scheduled to begin the second grade at Liberty Bell Elementary School in the Southern Lehigh School District. Joshua has adjusted well to school, both academically and socially. He is an intelligent and personable 7-year-old with many interests, ranging from computers to animals.

(18) Joshua has a close attachment to both of his parents. Because of their commendable cooperation, he has been able to enjoy an outstanding relationship with both of them.

(19) Joshua also enjoys a close relationship with his maternal grandmother and his paternal grandparents, all of whom reside in the Lehigh Valley area. He visits with them weekly. He also visits regularly and enjoys a good relationship with his stepmother’s parents, who live in a nearby community.

(20) Joshua’s extended family also includes a great-grandmother and great-aunt on Father’s side, living in Emmaus, as well as various aunts, uncles and cousins on both sides of his family, living in the Lehigh Valley and elsewhere in Pennsylvania and New Jersey.

(21) Joshua has developed an unusually strong bond with his stepfather, Dr. Madeira, and with his stepmother, Mary Klingman.

(22) With Mother and stepfather, Joshua participates in “family time” every evening after dinner. This usually includes some physical activity outdoors and some quiet play such as a board game. It is followed by Bible-reading before Joshua goes to bed. Mother and stepfather have taken Joshua on vacation trips to Tennessee, to Cape Cod, and last January, to Kenya, Africa, for an entire month.

(23) With Father and stepmother, Joshua enjoys spending time caring for their pets, which include his dog “Shadow” and various animals raised by his stepmother. He also enjoys going fishing with Father.

(24) Mother and Dr. Madeira desire to relocate with Joshua to Fayetteville, North Carolina. The purpose of the relocation would be to enable Dr. Madeira to accept a very desirable job offer from a hospital in that area.

(25) Dr. Madeira initially tried, through various “headhunters,” to obtain a suitable position in his field of internal medicine, closer to the Lehigh Valley. However, although other positions were available, he found nothing as desirable as the offer he has received from the North Carolina hospital.

(26) Mother has no family or friends in North Carolina. However, some of her family members and friends have indicated that they would make periodic visits to that area.

(27) The North Carolina position would pay Dr. Madeira $150,000 per year with six weeks of vacation and no “on-call” responsibilities. This would be a substantial improvement over his current circumstances. Pending his anticipated move to North Carolina, he has been working for local physicians on a temporary basis earning at the rate of approximately $100,000 per year.

(28) If Dr. Madeira is able to accept the North Carolina position, Mother would not have to work. She would then have more time to spend with Joshua and could also go back to school to complete her college education.

(29) If the petition to relocate is refused, Mother and Dr. Madeira intend to remain in the Lehigh Valley so that she can maintain primary custody of Joshua. Dr. Madeira would then begin a new job search, and Mother would continue with her part-time employment at Lehigh Valley Hospital.

(30) In his previous job search, Dr. Madeira indicated to recruiters that he was interested in a job only if it was located in Pennsylvania, Maryland, the northern part of Virginia, and the southern part of New York (excluding New York City). He also limited himself, at first, to metropolitan areas with a population of not less than 25,000 nor more than 250,000, but later changed his objective to areas of not less than 50,000 nor more than 500,000. He eliminated the entire State of New Jersey from consideration because, according to him, the northern part of this state is too much like New York City, while the southern part of the state consists mainly of towns that are too small.

(31) Dr. Madeira also excluded from consideration the Lehigh Valley job market because positions in internal medicine here would offer only $90,000 to $100,000 per year plus a production bonus depending on receipts generated. Also, Dr. Madeira felt that doctors in the Lehigh Valley carried patient loads more onerous than he wanted to encumber himself with.

(32) Dr. Madeira received a job offer from a private medical practice in Altoona, Pennsylvania, that would have started him at $100,000 per year for a 40-hour work week, with an opportunity to buy into the practice in the future. He rejected this offer because he felt he would end up working more than 40 hours per week and because the job required that he be on call every fourth night and every fourth weekend. Altoona is approximately three and one-half hours from the Lehigh Valley by automobile.

(33) Dr. Madeira could have had additional job offers from health care providers in other locations much closer to the Lehigh Valley than North Carolina, but he did not follow up on these potential opportunities because he felt they did not meet his requirements. In some cases, the potential offers were from small practices that would have required him to be on call every third night and every second or third weekend. In other cases, the opportunities were in towns of 20,000 to 50,000 people, which he felt were too small. In still other cases, the potential offers did not include sufficient vacation time to meet his desires. For example, Dr. Madeira believes he would have received an offer in Warren, Pennsylvania, except that he insisted on six weeks off per year rather than the proposed four weeks per year.

(34) Dr. Madeira’s current employment is only temporary, but there is no evidence that he cannot find adequate employment within the Lehigh Valley or within a reasonable driving distance from the Lehigh Valley, if he changes the parameters of his search to include positions with on-call responsibilities, positions with less than six weeks of vacation per year, positions in the State of New Jersey, and/or positions in communities with fewer than 50,000 people.

(35) Mother’s desire to move to North Carolina is not the result of a momentary whim. She believes that the quality of her life will be substantially improved and that, as a result, the quality of Joshua’s life will also be improved. However, she will be moving away from a network of family and friends, with whom she and Joshua will be able to have only limited contact.

(36) There is no evidence that the Fayetteville, North Carolina area has superior educational, cultural or social advantages for Joshua over what is available in or near the Lehigh Valley.

(37) The motives of Mother in seeking to relocate as well as the motives of Father in opposing the relocation are sincere and honorable.

(38) Mother has proposed, with the support of her expert witness, that Father be given partial custody for two periods of 15 days each during the summer, for most of the winter and spring school breaks, and for one extended weekend each month during the school year. An extended weekend would be a three-day weekend when Joshua had the following Monday or the preceding Friday off from school.

(39) Mother has offered to pay the cost of transporting Joshua by airplane between Fayetteville, North Carolina and the Lehigh Valley airport for Father’s periods of custody. She also proposed purchasing web cameras for Father and herself so that Father and Joshua could communicate over the Internet by videoconference.

(40) Although Mother’s proposal would provide Father with substantial custodial time and is offered in good faith, it is far less than the regular, weekly custody that Father presently has. It would significantly limit the ongoing relationship between Joshua and Father.

(41) The proposal to fly Joshua to the Lehigh Valley each month for extended weekend visits is not realistic. For Joshua to fly back and forth over a three-day period would leave little time for a meaningful visit. Much of the weekend would be taken up by traveling to and from the airport, checking in prior to the flight, and waiting at the airport for the plane to depart. There is also the element of uncertainty inherent in air travel. Flight delays because of weather conditions or equipment problems are not uncommon. In addition, flight schedules can be quite limited and are subject to change.

(42) Since there are only a limited number of extended weekends, there is no opportunity for flexibility in scheduling the visits. Therefore, as Joshua grows older, weekend trips to the Lehigh Valley will likely create tensions for him because of potential conflicts with his social and recreational activities.

(43) An alternative plan would be to give Father custody for all but one or two weeks in the summer, plus the entire Thanksgiving, winter and spring school breaks. This would be more workable, but such a schedule would still adversely affect the ongoing relationship between Joshua and Father because of the long stretches of time in which they would have no direct face-to-face contact.

(44) Joshua’s close relationship with his Father will be substantially impaired if he relocates to North Carolina.

(45) It is in Joshua’s best interests that he either remain in the Lehigh Valley or locate in an area within several hours from the Lehigh Valley by automobile.

(46) If Dr. Madeira relaxes some of his job search requirements, he will be able to find satisfactory employment in his chosen field of internal medicine within that area.

DISCUSSION

The “ultimate guidepost” in a child custody case, including a relocation dispute, is the child’s best interests. Meyer-Liedtke v. Liedtke, 762 A.2d 1111, 1115 (Pa. Super. 2000). Our focus in this case, therefore, must be on what is best for Joshua rather than on doing justice between the parties. English v. English, 322 Pa. Super. 234, 240, 469 A.2d 270, 273 (1983). In analyzing a case such as this, one can easily become distracted by considerations of fairness to the parents. That is not, however, what the law requires or permits. We must keep our eye on the ball: what is in the best interests of the child?

Unfortunately, there is no simple way to make this determination. It must be done on a case-by-case basis, based upon a “consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being.” McAlister v. McAlister, 747 A.2d 390, 391 (Pa. Super. 2000).

Although the child’s best interest remains the ultimate guidepost, the Superior Court has adopted a three-pronged test to assist in resolving custody relocation disputes. In Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), the court held that the following three factors should be given special consideration in a custody relocation case:

“(1) the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent;...
“(2) the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; and ...
“(3) the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.” Id. at 184-85, 583 A.2d at 439.

In applying the Gruber test, a court must seek to accommodate the following interests as nearly as possible:

“[T]he custodial parent’s desire to exercise autonomy over basic decisions that will directly affect his or her life and that of the children; a child’s strong interest in maintaining and developing a meaningful relationship with the non-custodial parent; the interest of the noncustodial parent in sharing in the love and rearing of his or her children; and, finally, the state’s interest in protecting the best interests of the children.” Id. at 184, 583 A.2d at 438-39.

Mother contends that the proposed relocation meets all three of the Gruber factors, and, therefore, that her petition to relocate should be granted. However, after careful consideration of the evidence presented, I reach a different conclusion. There is no doubt that Mother’s motives are sincere and honorable. She has been an admirable parent, and I am sure she wants only the best for her son. Thus, the second Gruber factor is clearly met. I am not satisfied, however, that the proposed relocation will substantially improve Joshua’s quality of life, or that realistic, substitute arrangements can be made to adequately foster Joshua’s ongoing relationship with Father. On balance, I believe that Joshua’s interests are best served if he does not relocate to North Carolina.

Regarding the first Gruber factor, it is clear that the proposed move would provide substantial economic advantages to Mother and Dr. Madeira. The high salary offered to Dr. Madeira in North Carolina will enable Mother to cease work, to spend more time with her son, and eventually to go back to school to complete her college education. Nevertheless, quality of life is not to be evaluated simply in economic terms. A relocation decision cannot be based simply on where the custodial parent or her spouse can obtain the highest income. Quality of life is a much broader concept. It must take into account the fact that if the relocation takes place, Mother and Joshua will be exchanging their strong network of family and friends in the Lehigh Valley for a collection of unknown and uncertain relationships. Quality of life also requires a consideration of educational, cultural and social advantages; and in this case Mother has not proven any such advantage to Joshua from the proposed relocation.

In short, we cannot simply consider the extra salary and vacation time that Dr. Madeira would have in North Carolina and the attendant benefits that would pass through to Joshua. In comparing the quality of life that Joshua would have in North Carolina with his quality of life in the Lehigh Valley, we have to consider the loss of his strong network of family and friends in this area and the disruption in his life by a move to a distant community. As a general rule, where a child’s existing relationships are satisfying and meaningful, it is far better to preserve those relationships than to take a chance on the unknown. According to Dr. Jane Tyler Ward, a psychotherapist who testifed as an expert witness for Father,

“[W]hen one parent relocates and the child no longer has access to both parents, the result can be traumatic, especially to a sensitive child like Josh. There is a significant body of literature that details the negative effects of removing children from a familiar cultural and social context. In this case, Josh would be away from a nuclear and extended family with whom he has significant bonds.”

Thus, a move to North Carolina may well be advantageous from Dr. Madeira’s perspective and even from Mother’s perspective because of the additional family income and additional vacation time. However, from Joshua’s perspective, his quality of life is likely to be adversely affected by the disruption of the move, the loss of his network of extended family and friends, and most important, the loss of the substantial, regular contact that he now has with Father.

Furthermore, in applying the first prong of the Gruber test, the court must compare the economic benefits of the proposed relocation not only with the present employment of Mother and her spouse, but also with other potential opportunities. In this case, Dr. Madeira recently completed his internship in internal medicine and has been searching for a new job in that field. He has found what he believes to be his dream job at a hospital in North Carolina. However, the proper comparison is not between this “dream job” and his current temporary position. We must also consider the other opportunities reasonably available to Dr. Madeira in the Lehigh Valley and iri areas much closer to the Lehigh Valley than North Carolina.

Unfortunately, neither party presented testimony from a vocational expert or similar witness regarding the employment prospects of an internal medicine specialist of Dr. Madeira’s caliber. It appears, however, from Dr. Madeira’s own testimony that he did have another substantial job offer from a private practice in Altoona, Pennsylvania; that he could have obtained other offers had he not insisted on six weeks of vacation each year and no on-call responsibilities; and that he excluded from consideration any positions in the State of New Jersey or in communities with a population of less than 50,000 or more than 500,000. Thus, the record does not support the argument of Mother’s counsel that Dr. Madeira will be without a job if he is unable to take the North Carolina position. There is no evidence that Dr. Madeira is unable to obtain a position that most people, even specialists in internal medicine, would consider quite suitable. He may have to relax some of the parameters he has set, such as his total exclusion of the State of New Jersey. But this is not too much to ask of him. His understandable desire for autonomy in decisions that directly affect his life must be tempered by the need for Joshua to maintain a meaningful relationship with his father.

The third Gruber factor presents an even more serious problem. Because of the distance between North Carolina and the Lehigh Valley, there is no realistic, substitute arrangement for visitation that can adequately foster the kind of ongoing relationship that Father and Joshua have enjoyed. Joshua’s substantial, regular contact with Father cannot possibly be sustained if he moves such a distance away.

Mother has suggested monthly visits by Joshua to Father, these trips to take place over three-day weekends. However, because of the distance and travel time involved, this is simply not practical. Mother testified that it is a relatively short trip by airplane from Fayetteville to the Lehigh Valley Airport. However, the airtime is but a small part of the trip. Joshua must be taken to the airport substantially in advance of the departure time. We do not know how far he must travel to get to the airport. No information has been provided as to the flight schedules. There is no assurance that there are or will be any flights leaving on Friday after Joshua leaves out from school. Thus, he may have to fly up on Saturday, spend Saturday night and Sunday with Father, and then fly back to North Carolina on Monday. This is not an adequate substitute for the substantial contact that Joshua now has with Father.

Moreover, it is common knowledge that airplanes are often late in taking off; that sometimes flights are can-celled because of weather or equipment problems; and that even flights that take off are sometimes re-routed to other destinations. Relying on such transportation is not a desirable arrangement for a 7-year-old boy.

In addition, as Joshua grows older, he will become more involved with his peer group. There will be social events, athletic programs, and other activities. It is foreseeable that tension will develop between his desire to travel to the Lehigh Valley to visit his Father and his desire to participate with his peers in normal weekend activities in North Carolina. These tensions are avoided or at least minimized if Joshua is permitted to grow up in or close to the same community in which father resides.

In summary, applying the Gruber factors, I am not convinced that Joshua’s quality of life will be substantially improved as a result of the proposed relocation, and I do not see any realistic, substitute arrangements that would continue the close relationship that Joshua has enjoyed with Father. Furthermore, our analysis cannot stop with consideration of the three Gruber prongs. The ultimate guidepost remains Joshua’s best interest. Considering his strong attachment to both of his parents and to his extended family in the Lehigh Valley area, and considering the many activities that he participates in with both parents, I can only conclude that it is in Joshua’s best interests to deny the proposed relocation. Joshua is a well-adjusted, happy boy, who is thriving in his present environment. We should try to keep him so.

Dr. Marla Isaacs, a psychologist with excellent credentials, testified as an expert witness for Mother after having interviewed Joshua, Mother and Dr. Madeira. Her purpose, as explained in her report, was “to assess if Joshua would suffer, were he to move with his mother and stepfather to North Carolina.” She recommended that as between remaining in the Lehigh Valley with Father or moving with Mother to North Carolina, Joshua should be permitted to move. However, she did not interview Father or the current Mrs. Klingman, a fact which considerably limits the value of her recommendations. Moreover, she acknowledged Joshua’s strong bond to his Father and stated, “In the best of all possible worlds, Joshua would not have to move. He would remain living close to his Father and his extended family.” I agree with this last statement.

Of course, this is not a perfect world, and sometimes job requirements do require a parent to move. Nevertheless, I do not believe that relocating Joshua to North Carolina would be in his best interests. And I am confident that Dr. Madeira will be able to find satisfactory employment much closer to the Lehigh Valley.

Mother and Dr. Madeira will be undoubtedly disappointed by my decision. They are fine people and have provided much love and affection to Joshua. I am sure they will continue to do so. My principal concern at this time is that Joshua may feel guilt at being the reason they are unable to move. I hope that Mother and Dr. Madeira will make a special effort to assure Joshua that any such feelings on his part are unwarranted.

There is an old expression, “The grass is always greener on the other side of the fence.” I think that applies here. That dream job in North Carolina may look wonderful from afar. Who is to say what the realities are? In any event, as I indicated initially, the focus of any court in a child custody matter is the best interests of the child, and I am convinced that Joshua’s interests are not well served by such a distant relocation.

ORDER

Now, August 16, 2001, after trial on plaintiff’s “petition for modification of custody and for permission to relocate with the minor child” and defendant’s “petition to modify custody order,” for the reasons stated in the accompanying opinion, it is ordered as follows:

(1) Mother’s petition to relocate with the minor child to Fayetteville, North Carolina, is denied.

(2) Father’s petition to modify the custody order, seeking primary physical custody, is denied as moot.

      . Defendant’s exhibit 5, p. 4.

      . Plaintiff’s exhibit 4, p. 1.

      . Plaintiff’s exhibit 4, p. 4.