author: COLINS, J.,

text:
    Sodeke v. Opawumi

      Laurie Ginsberg and William T Lawson, III, for plaintiff.

      Francis J. Deasey and Athena O. Pappas, for defendants Philadelphia Mental Health Center and Edward Parnés.

      Frederick B. Buck and Reid I. Howell, for defendant Elwyn Institute.

      Marc J. Syken, for defendant Progression Companies, Inc.

      Angelo L. Scaricamazza, Jr., for defendant Staffing Plus, Inc.

      Stuart T. O ’Neal, III, for defendant Staffmore LLC.
    October 2, 2013
   COLINS, J.,

Plaintiffs appeal this court’s order of May 30, 2013, granting defendants’ motion for summary judgment and dismissing their action for negligence and negligent supervision. The matter stems from an alleged assault on a minor that occurred while defendants provided home health care services to her brother in the child’s home. Plaintiffs timely filed a statement of matters complained of pursuant to Rule 1925(b), Pa. R. A. P. For the reasons set forth below, the court urges that its May 30th decision be affirmed.

ISSUES RAISED

This appeal raises the question whether a social services provider of home health services to minors has a duty to conduct an investigation of its workers’ background that exceeds the investigation required by state law.

UNDISPUTED FACTS OF RECORD

Minor-Plaintiff, Abimbola Sodeke, a/k/a Sarah Sodeke (Sodeke), and her mother, Adebisi Adeyemi (Adeyemi), claim that on February 13, 2008, defendant Emmanuel Opawumi (Opawumi), when delivering services to her brother in their home, attempted to assault Sodeke, nine years old at the time, by “placing his hand up her shirt and then placing his hand down her pants.” ¶¶8-9, third amended complaint.

Opawumi was a Therapeutic Staff Support worker (TSS worker) assigned by defendant Philadelphia Mental Health Center (PMHC) to provide home health care services to Sodeke’s minor brother. Defendant Staffmore, LLC (Staffmore), which under contract with PMHC recruits and screens candidates for TSS workers, screened and selected Opawumi. The contract required background and clearance checks on all Staffmore recruits. ¶13, Staffmore LLC staffing contract, Jan. 1, 2008, exhibit B, defendants’ motion for summaiy judgment (Defendants’ exhibits). Staffmore obtained valid child abuse, criminal history and FBI clearances on Opawumi. Defendants’ exhibit G (Pa. Child Abuse History Clearance, Opawumi, October 11,2007) and exhibit H (Pa. State Police PATCH response for criminal records check, verified Nov. 5, 2007); defendants’ exhibit D (Opawumi biography and notes, October 7,2007). Staffmore interviewed Opawumi, checked his references, and verified all his educational and state-mandated training certificates. Defendants’ exhibits E and F (reference checks dated Dec. 28, 200), exhibit I (Opawumi’s Bachelor’s Degree, Univ. Rhode Island, 1976, and MBA, Bryant College, 1978) and exhibit J (various certificates of training and education). There is no dispute that PMHC conducted the investigations required by both the law and its contract with PMHC. There is no dispute that Staffmore’s background check unearthed no problems or irregularities in Opawumi’s personal or professional history.

Plaintiffs Sodeke and Adeyemi both testified that prior to the February 13, 2008, incident they had had no problems with Opawumi and there is no evidence that they or anyone else had ever lodged a complaint with the defendants. Page 48, Deposition of plaintiff Sodeke (Sodeke dep.), Feb. 19,2013, defendants’ exhibit L; pages 54, 57, deposition of plaintiff Adeyemi (Adeyemi dep.), Feb. 19, 2013, defendants’ exhibit M. The evidence that a supervisor came to the plaintiffs’ house and observed Opawumi is uncontradicted. Page 48, exhibit L (Sodeke deposition).

Appended to plaintiffs’ response to defendants’ motion for summary judgment are the following: plaintiffs’ exhibit A (copy of a Staffmore, LLC document dated 12.13.07 entitled “Acknowledgement of Independent Contractor,” signed by a Staffmore representative and by defendant Opawumi); exhibit B (copy of a document entitled “TSS Supervision Documentation,” “Cases Reviewed and TSS Responsible for each,” dated 02.09.08, and referencing client Sodeke and TSS Opawumi); exhibit C (copy of federal tax form W-9: request for taxpayer ID number and certification, signed by Opawumi, dated 12.13.07, and a copy of Opawumi’s authorization agreement for automatic deposits).

The first count of plaintiffs’ third amended complaint charges defendant Opawumi with assault. Count III against defendant PMHC and count V against Staffing advance claims of negligence. Count VI is a claim of negligence by plaintiff Adeyemi against all defendants. This court’s order of May 30,2013, granting the corporate defendants’ motion for summary judgment leaves only defendant Opawumi in the case. Proceedings below have been deferred pending this appeal. See order of June 28, 2013 (Herron, J).

DISCUSSION AND CONCLUSION

Summary judgment is appropriate where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.’ Pa.R.C.P. 1035(b). ‘The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.’ Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). Summary judgment may be entered only in those cases where the right is clear and free from doubt. Price v. Leibfried, 34 A.3d 1279, 1281 (Pa. Super. 2011), appeal denied, 49 A.3d 444 (2012), citing, Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279, 280. (1989).

Summary judgment is warranted, however, if the party bearing the burden of proof at trial has failed to “provide evidence of facts essential to the cause of action” which “in a jury trial would require the issues to be submitted to a jury.” Rule 1305.2(a)(2), Pa. R. Civ. P. The court finds that the plaintiffs have failed to satisfy Rule 1305.2(a)(2) because they have presented nothing that gives rise to a heightened duty owed by the defendants to these plaintiffs and even if such a duty exists the record is devoid of evidence that the defendants were on notice of any danger posed by Opawumi.

Defendants have correctly stated that in order to sustain a claim of negligence, a plaintiff must show a duty of care owed to the plaintiff, that the defendants breached that duty, that an injury resulted from the breach, and that the plaintiff suffered a compensable injuiy. Page 7 (unnumbered), defendants’ motion for summary judgment, citing Martin v. Evans, 711 A.2d 458, 461 (Pa. 1998). Before evaluating whether there is sufficient evidence to put the question of negligence to a fact-finder, it falls to the court to determine as a matter of law whether a legal duty exists at all. Sharpe v. St. Luke s Hospital, 821 A.2d 1215, 1219 (Pa. 2003). A legal duty arises if the conduct complained of “foreseeably creates an unreasonable risk of harm.” In this case, the court finds that plaintiff has pointed to no conduct of the defendant that falls within scope of this test.

Plaintiffs admit that the defendants performed the background checks required both by the contract between Staffmore, LLC and PHMC and by Pennsylvania law. ¶¶12-16, 56-59. Plaintiffs’ answer to defendants’ motion for summary judgment (MSJ). Plaintiffs admit that those background checks yielded not one negative piece of information about Opawumi. Id. Further, the plaintiffs admit that (a) Opawumi was supervised, (b) that they had had no problems with Opawumi prior to the February 13, 2008, incident, and (c) that they had never previously complained to the defendants about Opawumi. Page 48, Sodeke dep., defendants’ exhibit L; pages 54,57, Adeyemi dep., defendants’ exhibit M. Finally, the plaintiffs concede that the record contains no evidence of prior complaints about Opawumi from anyone. Id.

Even so, plaintiffs argue that defendants should be held to some special standard of negligence, contending that “it is foreseeable in this instance that a person who would be working with a vulnerable population, such as young children, might avail himself of the opportunity to molest a child and thereby requiring additional screening.” ¶¶53-62. The difficulty with this statement is that the plaintiffs identify no nexus between the premise — the foreseeability of injury to minors — and the conclusion — that “additional screening” is required. The Pennsylvania legislature already has determined that children are vulnerable to abuse and has established special protections for this very population. 23 Pa. C. S. 6301, et seq. (Child Protective Services Law); §3680 (Department of Public Welfare supervision of children and youth social services agencies); 55 Pa. Code §3490.1, etseq. (DPW supervision of social services agencies whose employees come into contact with children); 55 Pa. Code §3680 (supervision of private agencies providing social services to children). It has imposed a corresponding duty on covered employers to investigate the backgrounds of prospective employees who will provide services to minors. 23 Pa. C. S. §§6344(b) and 6344.2 (mandating background checks of prospective employees who will work with children). The state requires employers to conduct criminal background checks and obtain child abuse history reports. 23 Pa.C.S. §6344(b). The legislative commitment to the protection of vulnerable children is apparent in the investigatory burden it places on employers of those working with this population.

The plaintiffs’ argument can be understood only as a plea to create a new duty as a matter of policy. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000) (observing that the legal concept of duty of care rests on public policy considerations). In Pennsylvania those policy considerations include: (1) the relationship between the parties: (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Id. Unquestionably, Pennsylvania has acknowledged that the relationship between agencies like PHMC and its minor clients is a special one. The state has also determined that providers of mental health services to children perform a vital public health function. 50 Pa. C. S. 4201, et seq. The legislature has acknowledged the risk and foreseeability of harm by requiring employers to conduct background checks and by providing to those employers methods to identify high-risk candidates.

Against these considerations, the court weighs the plaintiffs’ claim that those who provide vital services to children should be burdened with a greater, but amorphous duty to conduct “additional screening” beyond that already required by law. The court’s attention is drawn to the record which contains no testimony, document, or expert report that articulates what additional screening should be mandated. Thus, the plaintiffs fail to articulate a “solution” in which the public has an interest and that this court can evaluate. They also present neither argument nor evidence in this case that “additional screening” would have uncovered anything negative about Opawumi. Consideration of the Althaus factors weighs against creating a duty that requires providers of mental health services for children to conduct open-ended investigations of their prospective employees beyond that already required expressly for this vulnerable population. Since the plaintiffs’ case fails on the threshold issue of duty, it is not necessary to address any other issues they raise. The order of the court should be affirmed.

PLAINTIFFS’ STATEMENT OF MATTERS COMPLAINED OF PURSUANT TO Pa. R. A. P. 1925(b)

Pursuant to the order of this court plaintiffs hereby submit the following matters complained of for the courts’ consideration:

1. The court should not have entered summary judgment in this case
2. The court should not have granted defendants’ motion for summary judgment and dismissed this case in that:
A. Defendants had a duty to minor plaintiff which they violated, to conduct extensive background checks on persons such as defendant Opawumi;
B. Defendants had a duty to minor plaintiff which they violated, in that they had a duty to monitor persons such as defendant Opawumi who were providing services to minors and in households where other minor children resided;
C. Plaintiffs were in no way negligent.
3. The court improperly granted summary judgement as same was based upon testimonial evidence and in violation of the rule in Nanty-Glo Boro v. America Surety Co. 309 PA 236, 238 163 A. 523, 525 (1932).
4. The court improperly entered judgment as the issue of defendant Opawumi’s status as an employee as opposed to an independent contractor was never decided.
5. The court improperly entered summary judgment as the extent of the duty to investigate persons such as defendant Opawumi was a factual issue which should have been submitted to the jury.
6. The court improperly entered summary judgment as the as the extent of the duty to monitor persons such as defendant Opawumi was a factual issue which should have been submitted to the jury.
7. The court improperly entered summary judgment as the totality of circumstances of the incident should have been presented to the jury so that the jury might determine whether there was a breach of duty owed to plaintiffs.
8. The court improperly entered summary judgment as it relied upon the opinion in Mahan v. Am-Gard, Inc. 2003 PA Super 510; 841 A.2d 1052; 2003 Pa. Super. LEXIS 4599, which is not applicable int his case
9. There are a plethora of factual issues that should have been decided by a trier of fact and would bar the entry of summary judgment herein, they are as follows:
A. Did defendants have a duty to conduct extensive investigations of persons such as defendant Opawumi;
B. Did defendants have a duty to extensively monitor persons such as defendant Opawumi;
C. Was plaintiff negligent.
D. Were defendants negligent;
E. What was the percentage of negligence of the parties;
F. Was defendants’ duty of care breached
G. Was defendant Opawumi an employee of any of the other defendants.
H. Was defendant an independent contractor or an employee.

      . A stipulation dismissing count II against defendant Elwyn Institute was approved on September 4,2012 (Control No. 120830820). Count IV against defendant The Progressions Companies, Inc. was also dismissed by stipulation approved on July 10, 2012 (Control No. 1420261776).

      . The plaintiffs claim that PHMC owed a duty to the third-party sister and his mother, not to PHMC’s own client, the brother. As the court finds no basis for creating new duty as to the brother, it need not address this issue.


source: Caselaw Access Project

author: KOURY, J.,

license: Public Domain

text:
    Todd Heller, Inc. v. The Cardinal Group

      C.P. of Northampton County,
    No. C-48-CV-2011-238

      Saleem Mawji, for plaintiffs.

      Patricia A. Fecile Moreland, for defendant.
    October 3, 2013-
   KOURY, J.,

OPINION OF THE COURT

This matter is before the court on the preliminary objections of defendant The Cardinal Group a/k/a Stericycle, Inc. (“Cardinal”) to the complaint filed by plaintiff Todd Heller, Inc. (“THI”). The matter was assigned to the Honorable Michael J. Koury, Jr. from the September 3, 2013 argument list. The parties submitted briefs and presented oral argument. The matter is now ready for disposition.

BACKGROUND

I. THI’s Complaint

THI is the former owner and operator of a recycling facility located at 799 Smith Lane in the Borough of Northampton, Northampton County, Pennsylvania (the “Property”). See complaint ¶3, Todd Heller, Inc. v. The Cardinal Group, a/k/a Stericycle, Inc., C-48-CV-2011-238 (C.P. Northampton Co. Apr. 29,2013) (“compl.”). Cardinal is a provider of environmental assessment services. See compl., ex. A.

On January 12, 2007, in anticipation of a proposed sale of the Property, THI entered into an agreement with Cardinal (the “agreement”) providing that Cardinal would perform an assessment of the property for the purpose of assisting in the evaluation of legal and financial liabilities associated with the property. See compl. ¶¶4, 7, ex. B, at 9, 56. The scope of the work Cardinal was to perform included a review of certain records of the Northeast Regional Office of the Pennsylvania Department of Environmental Protection (“DEP”). See compl. ¶8, Ex. B at 25, 56.

Following Cardinal’s investigation, including its review of the specified DEP records, Cardinal prepared a report dated January 31, 2007 (the “report”). See compl. ¶6, ex. B. In the report, Cardinal concluded that the Property “had no liabilities and no recognized environmental conditions.” Compl. ¶11, ex. B, at 7. In September 2007, relying in part on the report, THI sold the property to Greenstar, LLC and Greenstar Allentown, LLC f/k/a Penn Acquisition Sub, LLC (collectively, “Greenstar”). See compl. ¶11.

After the sale, Greenstar met with DEP to discuss the removal of mixed broken glass (“MBG”) from the property and arranged to review DEP’s files relating to the property. See compl. ¶¶12,14. In its review of DEP’s files, Greenstar discovered a July 22, 2003 letter from DEP to THI (the “July 22, 2003 Letter”) setting forth concerns about the presence of MBG on the property, referencing prior DEP site visits, and requesting certain information. See compl. ¶15, ex. C. Cardinal had not referenced the July 22, 2003 letter in its report. See compl. ¶15.

After Greenstar remediated the environmental issues on the property, Greenstar brought an action against THI in the United States District Court for the District of Delaware alleging that THI had (1) failed to disclose the July 22, 2003 letter prior to the sale of the property; and (2) made fraudulent misrepresentations concerning the property’s environmental condition, compliance with applicable laws and regulations, and potential liabilities. See compl. ¶¶19-20. Greenstar obtained a money judgment against THI for its expenses of remediation, costs, and attorneys’ fees. See compl. ¶21 (citing Greenstar, LLC v. Heller, Inc., No. 10-746-SLR (D. Del. Mar. 28, 2013)).

In the instant action, THI alleges that (1) Cardinal’s scope of work under the agreement required it to review and disclose all relevant DEP records; (2) Cardinal knew that it had been retained in part to assist in the evaluation of legal and financial liabilities associated with the Property; (3) Cardinal breached the agreement by failing to disclose the July 22, 2003 letter in the report; and (4) as a result of Cardinal’s breach, THI suffered damages, including the amounts it was ordered to pay to Greenstar and the expenses and attorneys’ fees THI incurred in defending Greenstar’s action. See compl. ¶¶22-29. THI asserts claims against Cardinal for breach of contract (count I), breach of the duty of good faith and fair dealing (count II), and breach of fiduciaiy duty (count III). See compl. ¶¶30-52.

In support of each of its claims, THI asserts the same conduct, i.e., Cardinal’s failure to identify and comment upon the July 22, 2003 letter in the report. See compl. ¶¶33,40,49. In support of its claim for breach of contract, THI alleges: “Cardinal failed to perform in a workmanlike manner by failing to identify and discuss the July 22,2003 DEP correspondence to Todd Heller, which specifically addresses a DEP regulation.” Compl. ¶33. In support of its claim for breach of the duty of good faith and fair dealing, THI alleges: “Cardinal failed to identify and comment upon DEP correspondence regarding a known DEP regulation.” Compl. ¶40. In support of its claim for breach of fiduciary duty, THI alleges: “Cardinal failed to identify and comment upon DEP correspondence concerning a DEP regulation in its Assessment, which has exposed THI to numerous financial liabilities.” Compl. ¶49.

II. Cardinal’s Preliminary Objections

Cardinal filed preliminary objections, in the nature of demurrers, asserting that (1) count II for breach of the duty of good faith and fair dealing and count III for breach of fiduciary duty should be dismissed for legal insufficiency under Pa.R.C.P. 1028(a)(4), because those claims sound in contract rather than tort and are therefore barred under the “gist of the action” doctrine; (2) count II should be dismissed for legal insufficiency under Pa.R.C.P. 1028(a) (4), because Pennsylvania does not recognize a cause of action for breach of the duty of good faith and fair dealing distinct from a cause of action for breach of contract; and (3) count III should be dismissed for legal insufficiency under Pa.R.C.P. 1028(a)(4), because the complaint fails to allege facts from which it could be inferred that Cardinal owed a fiduciary duty to THI or that Cardinal’s alleged violation of any such duty was the proximate cause of THI’s injuries. See defendant, Stericycle, Inc.’s preliminary objections to plaintiff’s complaint ¶¶28-68, Todd Heller, Inc. v. The Cardinal Group, a/k/a Stericycle, Inc., No. C-48-CV-2013-238 (C.P. Northampton Co. June 7, 2013) (“Prel. Obj.”).

DISCUSSION

I. Legal Standards Applicable to Demurrer

Cardinal’s preliminary objections are brought under Pa.R.C.P. 1028(a). Rule 1028(a) provides:

(a) Preliminaiy objections may be filed by any party to any pleading and are limited to the following grounds:
(4) legal insufficiency of a pleading (demurrer).

Pa.R.C.P. 1028(a).

“For the purpose of evaluating the legal sufficiency of the challenged pleading, the court must accept as true all well-pleaded, material, and relevant facts alleged in the complaint and every inference that is fairly deducible therefrom.” Mazur v. Trinity Area Sch. Dist., 961 A.2d 96, 101 (Pa. 2008). We need not, however, accept argument, opinion, conclusions of law, or unwarranted inferences. See Penn Title Ins. Co. v. Deshler, 661 A.2d 481, 483 (Pa. Commw. 1995).

“The court may sustain preliminary objections only when, based on the facts pleaded, it is clear and free from doubt that the complainant will be unable to prove facts legally sufficient to establish a right to relief.” Mazur, 961 A.2d at 101; accord In re B.L.J., Jr., 938 A.2d 1068, 1071 (Pa. Super. 2007); Kane v. State Farm Fire & Cas. Co., 841 A.2d 1038, 1041 (Pa. Super. 2004). If any doubts exist as to the sufficiency of the complaint, we must examine those doubts in the context of the complaint as a whole and resolve any lingering doubt in favor of overruling the demurrer. See Kane, 841 A.2d at 1041; Rachlin v. Edmison, 813 A.2d 862, 870 (Pa. Super. 2002).

II. Cardinal’s Demurrers Based on the Gist of the Action Doctrine

A. The Gist of the Action Doctrine

The gist of the action doctrine precludes plaintiffs from recasting ordinary breach of contract claims as tort claims and thereby potentially obtaining types of relief not permitted for breach of contract. See Hart v. Arnold, 884 A.2d 316, 339 (Pa. Super. 2005); Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 581 (Pa. Super. 2003), appeal denied, 852 A.2d 313 (Pa. 2004); Koken v. Steinberg, 825 A.2d 723, 729 (Pa. Commw.), appeal quashed, 834 A.2d 1103 (Pa. 2003).

When a plaintiff alleges that the defendant committed a tort in the course of carrying out a contractual agreement, Pennsylvania courts examine the claim and determine whether the ‘gist’ or gravamen of it sounds in contract or tort; a tort claim is maintainable only if the contract is “collateral” to conduct that is primarily tortious.

Pennsylvania Mfrs. Ass’n Ins. Co. v. L.B. Smith, Inc., 831 A.2d 1178, 1182 (Pa. Super. 2003) (quoting Yocca v. Pittsburgh Steelers Sports, Inc., 806 A.2d 936, 944 (Pa. Commw. 2002)). “Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.” eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. 2002); accord Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 719 (Pa. Super. 2005). The Superior Court has stated:

To be construed as in tort..., the wrong ascribed to defendant must be the gist of the action, the contract being collateral. The important difference between contract and tort actions is that the latter lie from the breach of duties imposed as a matter of social policy while the former lie for the breach of duties imposed by mutual consensus. In other words, a claim should be limited to a contract claim when the parties’ obligations are defined by the terms of the contracts, and not by the larger social policies embodied by the law of torts.

eToll, 831 A.2d at 14; accord The Brickman Group, Ltd. v. CGU Ins. Co., 865 A.2d 918, 927 (Pa. Super. 2004). Thus, the gist of the action doctrine bars tort claims:

(1) arising solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; or (4) where the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of the contract.

eToll, 811 A.2d at 19 (citations and quotations omitted). Whether the gist of the action doctrine applies is an issue of law for the court. See id. at 15.

B. THI’s Claims for Breach of Fiduciary Duty and Breach of the Implied Covenant of Good Faith and Fair Dealing

“A breach of fiduciary duty claim is barred by the gist of the action doctrine if the fiduciary duty alleged is grounded in contract obligations.” Alpart v. General Land Partners, Inc., 574 F. Supp. 2d 491, 499 (E.D. Pa. 2008). “However, claims for breach of fiduciary duty and breach of contract can coexist if the fiduciary duty is based on duties imposed as a matter of social policy and if the fiduciary duty is not based on a contractual agreement between the parties.”(emphasis added); accord BohlerUddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 103-07 (3d Cir. 2001).

In Alpart, the limitedpartners in areal estate development partnership sued the general partner for various acts of alleged misconduct. See 51A F. Supp. 2d at 500. The Court held that in addition to its contractual duties under the partnership agreement, the general partner owed its limited partners a fiduciary duty of trust, fairness, honesty, and good faith imposed as a matter of social policy. See id. Some of the alleged misconduct, for example, that the general partner had sold partnership properties without first establishing their fair market value, as required by the partnership agreement, violated the express terms of the parties’ contract. See id. Other alleged misconduct, for example, that the general partner had acted for its personal gain to the detriment of the limited partners by scheduling the general partner’s own development projects ahead of the partnership’s projects, did not violate any express terms of the partnership agreement but arguably violated the general partner’s fiduciary duty to the limited partners. See id. The court held that (1) claims for alleged wrongs that were covered by the partnership agreement must be brought as breach of contract claims, and any claims for breach of fiduciary duty based on such conduct were barred by the gist of the action doctrine; but (2) claims for alleged wrongs that were not covered by the partnership agreement were not barred by the gist of the action doctrine and therefore could be separately maintained as claims for breach of fiduciary duty. See id.

Similarly, in Bohler, the minority partner in a joint venture sued the majority partner for breach of the joint venture agreement, misappropriation of trade secrets, and breach of fiduciary duty. See 247 F.3d at 103-07. The court held that in addition to its contractual duties under the joint venture agreement, the majority partner owed the minority partner a fiduciary duty of utmost good faith imposed by social policy. See id. The court held that the joint venture agreement did not expressly cover the majority partner’s theft of trade secrets, self-dealing transactions, and diversion of corporate opportunities to the detriment of the minority partners and that the gist of the action doctrine therefore did not bar the minority partner’s claims for misappropriation and breach of fiduciary duty for those alleged wrongs. See id. However, because the joint venture agreement did expressly cover the use of one particular type of trade secret, the court held that the “gist” of any claim for misuse of that type of trade secret was contractual and that any claim for misappropriation of that type of trade secret would be barred by the gist of the action doctrine. See id.

Here, THI’s claims for breach of contract, breach of fiduciary duty, and breach of the implied covenant of good faith and fair dealing are all based on the same alleged wrong, i.e., Cardinal’s failure to identify and comment upon the July 22,2003 letter in the report. See compl. ¶¶33 (count I), 40 (count II), 49 (count III). In its complaint, THI acknowledges that this alleged wrong was expressly covered by the agreement. See compl. ¶8 (“The scope of Cardinal’s work included a review of files stored at the Northeast Regional Office of the Pennsylvania Department of Environmental Protection (“DEP”)); accord id., ex. B, at 25, 56. Thus, under the authorities cited above, THI’s claim based on this alleged wrong must be brought as a claim for breach of contract, and its claims for breach of fiduciary duty and breach of the implied covenant of good faith and fair dealing based on the same conduct are barred by the gist of the action doctrine. Accordingly, Cardinal’s demurrers based on the gist of the action doctrine must be sustained.

III. Cardinal’s Demurrers Based on Failure to State a Claim

Cardinal asserts that (1) THI’s claim for breach of the duty of good faith and fair dealing (count II) should be dismissed for legal insufficiency under Pa.R.C.P. 1028(a) (4), because Pennsylvania does not recognize a cause of action for breach of the duty of good faith and fair dealing distinct from a cause of action for breach of contract; and (2) THI’s claim for breach of fiduciaiy duty should be dismissed for legal insufficiency under Pa.R.C.P. 1028(a) (4), because THI and Cardinal were parties to an arm’s length commercial contract, and THI has failed to allege facts from which it could be inferred that Cardinal owed a fiduciary duty to THI or that Cardinal’s alleged violation of any such duty was the proximate cause of THI’s injuries. See prel. obj. ¶¶40-68.

The court need not decide whether THI has sufficiently stated claims for breach of the duty of good faith and fair dealing and breach of fiduciary duty, because, as discussed above, even if THI has sufficiently stated claims under those legal theories, the wrong alleged in the complaint in support of those claims was a violation of the contract, and those claims are therefore barred by the gist of the action doctrine. Accordingly, Cardinal’s preliminary objections, in the nature of demurrers, that THI’s claims for breach of the duty of good faith and fair dealing and breach of fiduciary duty are insufficient for failure to state a claim, are moot.

Wherefore, we enter the following:

ORDER OF COURT

And now, this 3rd day of October, 2013, upon consideration of the preliminary objections of defendant The Cardinal Group a/k/a Stericycle, Inc. (“Cardinal”) to the complaint filed by plaintiff Todd Heller, Inc. (“THI”) and upon consideration of the parties’ briefs and argument thereon, it is hereby ordered and decreed that:

1. Cardinal’s preliminary objection, in the nature of a demurrer, seeking to dismiss THI’s claim for breach of the duty of good faith and fair dealing on the ground that it is barred by the gist of the action doctrine is sustained.
2. Cardinal’s preliminary objection, in the nature of a demurrer, seeking to dismiss THI’s claim for breach of fiduciary duty on the ground that it is barred by the gist of the action doctrine is sustained.
3. Cardinal’s preliminary objection, in the nature of a demurrer, on the ground that THI failed to state a claim for breach of the duty of good faith and fair dealing is denied as moot.
4. Cardinal’s preliminary objection, in the nature of a demurrer, on the ground that THI failed to state a claim for breach of fiduciary duty is denied as moot.

      . Stericycle, Inc. acquired The Cardinal Group, Inc. after the events described in the complaint. See memorandum of law in support of defendant, Stericycle, Inc.’s preliminary objections to plaintiff’s complaint, Todd Heller, Inc. v. The Cardinal Group, a/k/a Stericycle, Inc., C-48-CV-2011-238 (C.P. Northampton Co. June 7, 2013) at 1 n.1 (“def. br.”).

      . Although this court is not bound by federal court opinions inteipreting Pennsylvania law, we may consider federal cases as persuasive authority. See Cambria-Stoltz Enter. v. TNT Invs., 747 A.2d 947, 952 (Pa. Super. 2000).


author: MASSIAH-JACKSON, J.,

text:
    Hueitt v. Philadelphia Media Holdings, LLC

      Gerard Jacob Martillotti, for plaintiff.

      Ralph P Bocchino, James William Gicking and Robert C. Geller, Jr., for defendants.
    October 7, 2013—
   MASSIAH-JACKSON, J.,

A. FACTUAL BACKGROUND and PROCEDURAL HISTORY

In October, 2006, Ms. Harriet Hueitt was driving her car in Southwest Philadelphia, when she stopped at the intersection to purchase a Philadelphia Daily News from a man standing in the roadway. Ms. Hueitt’s vehicle was struck from behind by Mr. Jeffrey Alexander Vargas.

As a result of the injuries sustained by the impact, Plaintiff-Hueitt commenced this litigation in 2008, against Mr. Vargas and Philadelphia Media Holdings, LLC (“PMH”). When discovery was complete, PMH filed a motion for summary judgment. On June 13, 2011, this court granted the motion and dismissed all claims against PMH.

Plaintiff-Hueitt filed an appeal to the Honorable Superior Court at 1922 EDA 2011. On August 2, 2011, this trial court filed an opinion as per Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure. See court exhibit “A”, attached hereto. On January 13, 2013, the appeal was quashed as interlocutory. See court exhibit “B”, attached hereto.

Counsel and this court acknowledge the procedural questions raised by the Honorable appellate court in its memorandum, filed on Januaiy 28, 2013. By hearing transcript of July 30, 2013, which has been filed on the docket, and by additional records submitted, this court believes that the sole issue remaining is to determine whether PMH can be found liable to Ms. Hueitt. This trial court concluded that an immediate appeal would facilitate resolution of the entire case. On August 14, 2013, a final order was signed and filed by the court. See court exhibit “C”, attached hereto.

For all of the reasons set forth in the trial court’s opinion, dated August 2, 2011, and as set forth below, this court concludes that neither the news hawker nor PMH owed a duty of care to Ms. Hueitt, and, did not breach any duty toward Ms. Hueitt, and, as presented in the materials submitted by PMH, the actions of a street hawker were so remote in the causal chain that PMH can not be held legally responsible as a matter of law.

B. LEGAL DISCUSSION

Generally, where the defendant and plaintiff are strangers, a court applies a general duty of care required of all persons to not place another at an unreasonable risk of harm by way of their actions.

Duty, in any given situation, is predicated upon the relationship existing between the parties at the relevant time. Morena v. South Hills Health System, 462 A.2d 680 (Pa. 1983); Alumni Association v. Sullivan, 535 A.2d 1095 (Pa. Superior Ct. 1987).

The facts herein reveal that the newspaper hawker was standing in the intersection of the street. It was Ms. Hueitt who drove toward him and then stopped her vehicle. Where the parties are strangers to each other the scope of general duty of care is limited to those risks which are reasonably foreseeable. See, Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3rd Cir. 1993) where the court of appeals provided an overview of well-established Pennsylvania negligence law and duty of care. In this case, Ms. Hueitt did not present anything in these facts to put a newspaper hawker on notice that Mr. Vargas would drive in a negligent manner. See also, 75 Pa. C.S.A. §3361 (assured clear distance rule); Dahlstrom v. Shrum, 84 A.2d 289 (Pa. 1951).

In Brezenski v. World Truck Transfer, Inc., 755 A.2d 36 (Pa. Superior Ct. 2000), the appellate court held that under the common law, absent a special relationship, there is no duty (news hawker) to control the conduct of a third person (Mr. Vargas) to protect another (Ms. Hueitt) from harm. See also, §315 Restatement (Second) of Torts.

C. CONCLUSION

For all of the reasons set forth above, this opinion is filed per Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure to provide an explanation why the motion for summary judgment filed by Philadelphia Media Holdings, LLC d/b/a The Philadelphia Daily News was granted and all claims against PMH were dismissed.

A. FACTUAL BACKGROUND and PROCEDURAL HISTORY

Looking at the record in a light most favorable to plaintiff: On October 6, 2006, Ms. Harriet Hueitt was driving near the busy intersection of Bartram Avenue and Island Avenue in Philadelphia. When she observed a newspaper vendor in the roadway selling papers, plaintiff-Hueitt stopped her car and was in the process of purchasing a newspaper. Suddenly and without warning, her automobile was hit from behind by a vehicle driven by Jeffrey Vargas. The plaintiff suffered serious and permanent injuries as a result of the impact.

Plaintiff-Hueitt commenced this litigation in 2008, naming Mr. Vargas and Philadelphia Media Holdings, LLC d/b/a The Philadelphia Daily News, (“”PMH”), as defendants. Ms. Hueitt sued the PMH for negligence. Specifically, she claimed that in count II of her complaint:

“25. The act of attempting to make a sale of a product in a designated roadway such as Island and Bartram Avenues, is negligent, unsafe and dangerous, in that their actions impede the safe flow of traffic and results in traffic stopping on the roadways.
26. Defendant’s act of soliciting and selling a newspaper to the plaintiff on the roadway of Island Avenue was negligent and unsafe act.”

On April 29, 2011, PMH filed a motion for summary judgment. On June 13, 2011, this court entered an order granting summary judgment. See, court exhibit “A”, attached hereto. Plaintiff-Hueitt promptly filed an appeal to the Honorable Superior Court.

In accordance with Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, this court submits this brief opinion of the reasons for the order.

B. LEGAL DISCUSSION

Rule 1035.2 of the Pennsylvania Rules of Civil Procedure provides that when the record contains insufficient evidence or facts to make out a prima facie cause of action, then judgment may be entered in favor of the defendant as a matter of law. e.g. Ertel v. The Patriot-News Company, 674 A.2d 1038, 1042 (Pa. 1996) and cases cited therein; Penn Center House, Inc. v. Hoffman, 553 A.2d 990 (Pa. 1989).

Initially, it must be noted that the reasons presented by PMH in support of its motion for summary judgment are compelling and persuasive and are adopted as if set for herein.

In addition to the reasons submitted by the defendant, this court concludes that the newspaper vendor owed no duty of care to Ms. Hueitt that was relevant to the facts of this case.

In Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218 (Pa. 2002), the Supreme Court cited Prosser and Keeton on the Law of Torts, §53, to “resolve the fundamental question of whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.” 812 A.2d at 1222:

“A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.”

See also, Brezenski v. World Truck Transfer, 755 A.2d 36 (Pa. Superior Ct. 2000).

The undisputed facts here are that the vendor was standing in a public street with his newspapers. Ms. Hueitt was a stranger present on the same street. She approached the vendor. Ordinary care did not require the vendor to do something that he did not do or not do something that he did do vis-a-vis plaintiff-Hueitt. The news vendor had no legal obligation to the plaintiff based on these facts.

C. CONCLUSION

For all of the reasons set forth above, the Order granting summary judgment was entered on June 13, 2011.

ORDER

And now, this 13rd day of June 2011, upon consideration of the motion for summary judgment of defendant, Philadelphia Media Holdings, LLC d/b/a The Philadelphia Daily News, and any responses thereto, it is hereby ordered and decreed that said motion is granted and that all claims against defendant, Philadelphia Media Holdings, LLC d/b/a The Philadelphia Daily News in plaintiff’s complaint are dismissed with prejudice.

Appellant, Harriet Hueitt, appeals from the order entered in the Philadelphia County Court of Common Pleas granting summary judgment in favor of appellee, Philadelphia Media Holdings, LLC, doing business as the Philadelphia Daily News [hereinafter “Daily News”]. Because, inter alia, Ms. Hueitt has an outstanding claim against co-defendant Jeffrey Alexander Vargas, we quash.

We briefly state the facts, which are generally undisputed, in the light most favorable to Ms. Hueitt. In the early morning of October 6, 2006, Ms. Hueitt was driving on Island Avenue in northeast Philadelphia. She stopped at the intersection with Bartram Avenue to purchase a Philadelphia Daily News newspaper from a street vendor. Mr. Vargas, who was driving behind Ms. Hueitt, rear-ended her vehicle. As a result, Ms. Hueitt was injured.

The street vendor is known as a “hawker.” The Daily News sells newspapers to contractors. Ex. B to Daily News’s mem. of law in support of mot. for summ. j. The contractors, in turn, hire and train homeless or disadvantaged people-“hawkers”-to sell newspapers. Id. The agreement between the Daily News and the contractors specifies the general areas within which they may sell. Ex. C. to Daily News’s mem. of law in support of mot. for summ. j. The agreement also contains a risk of loss provision:

RISK OF LOSS. Upon Contractor’s pick-up of Newspapers from [Daily News], the risk of loss with respect to the Newspapers, and the title to the Newspapers, passes to Contractor who then becomes responsible for any damaged or extra Newspapers that were picked up. In addition, Contractor bears all other risks incurred in running Contractor’s business, including the risk of loss of non-payment by purchasers.

Id. The contractors also indemnify Daily News for any injuries resulting from any actions or omissions by the contractors and hawkers. Id.

Ms. Hueitt filed a complaint against the Daily News and Mr. Vargas. Ms. Hueitt raised two separate claims: a claim of negligence against the Daily News and a claim of negligence against Mr. Vargas. Ms. Hueitt’s Am. Compl. The Daily News joined Timothy B. Keeley, also known as Timothy B. Keeley, Sr., as an additional defendant. Joinder Compl. of Daily News. The Daily News alleged Mr. Keeley was the contractor who supervised the hawker in this case and also invoked indemnification. Mr. Vargas raised a cross-claim of negligence against the Daily News. Mr. Vargas’s Answer with New Matter to Ms. Huiett’s Am. Compl. No party sued the hawker.

Discovery ensued. The Daily News filed a motion for summary judgment. On June 13, 2011, the trial court granted the Daily News’s motion and dismissed Ms. Hueitt’s claims against the Daily News only. Order, 6/13/11. The order did not express “that an immediate appeal would facilitate resolution of the entire case.” See Pa.R.A.P. 341.

Ms. Hueitt filed a timely notice of appeal on July 7, 2011. On July 22, 2011, the trial court sua sponte ordered that “Plaintiff’s case against... Timothy Keeley is nonprossed.” Order, 7/22/11. The record does not reflect any disposition of the other outstanding claims.

Because of these outstanding claims, we examine the propriety of this appeal. Pennsylvania Rule of Appellate Procedure 341 defines a final order for purposes of appeal:

(a) General rule. Except as prescribed in subdivisions (d), and (e) of this rule, an appeal may be taken as of right from any final order of an administrative agency or lower court.
(b) Definition of final order. A final order is any order that:
(1) disposes of all claims and of all parties....
***
(c) Determination of finality. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim or when multiple parties are involved, the trial court or other governmental unit may enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case.

Pa.R. A.P. 341 (a)-(c). “The key inquiry in any determination of finality is whether there is an outstanding claim.” Levitt v. Patrick, 976 A.2d 581, 588 (Pa. Super. 2009) (citing Pa.R.A.P. 341).

In this case, Ms. Hueitt has an outstanding claim of negligence against Mr. Vargas. Mr. Vargas has an unresolved cross-claim of negligence against the Daily News. At least one party has an open claim against Mr. Keeley, See n.4, supra. Because of these outstanding claims, the June 13, 2011 order granting summary judgment in favor of the Daily News is not a final order for purposes of appeal. See Pa.R. A.P. 341(b)-(c). The trial court did not indicate “that an immediate appeal would facilitate resolution of the entire case.” See Pa.R.A.P. 341(c). Accordingly, we quash because the appeal is interlocutory. See Druot v. Coulter, 946 A.2d 708, 710 (Pa. Super. 2008) (per curiam) (quashing appeal from order granting summary judgment adverse to all claims raised by plaintiffs but leaving unresolved defendants’ counterclaims).

Appeal quashed.

ORDER

And now, this 14th day of August, 2013, upon consideration of the motion to discontinue and end the plaintiff’s claims against defendants Jeffrey Alexander Vargas and Timothy Keeley, a/k/a Timothy B. Keeley, Sr., and the response thereto by defendant, Philadelphia Media Holdings, LLC d/b/a The Philadelphia Daily News, it is hereby ordered and decreed that:

(1) Plaintiffs’ claims against defendant Jeffrey Alexander Vargas and Timothy Keeley a/k/a Timothy B. Keeley, Sr. are hereby marked as discontinued and ended; and
(2) Defendant Philadelphia Media Holdings, LLC d/b/a The Philadelphia Daily News’ cross-claims against co-defendant Jeffrey Alexander Vargas remain in effect and the stipulation of dismissal and this order have no effect on defendant Philadelphia Media Holdings, LLC d/b/a The Philadelphia Daily News’ right to proceed against Jeffrey Alexander Vargas at the time of trial; and
(3) The claims contained in defendant Philadelphia Media Holdings, LLC d/b/a The Philadelphia Daily News’ Joinder Complaint against additional defendant Timothy Keeley a/k/a Timothy Keeley, Sr., remain in effect and the stipulation of dismissal and this order have no effect on defendant Philadelphia Media Holdings, LLC d/b/a The Philadelphia Daily News’ right to proceed against additional defendant Timothy Keeley a/k/a Timothy Keeley, Sr. at the time of trial.

See also, hearing transcript of July 30, 2013.

      . The record reflects an amended complaint correcting the name of Mr. Vargas.

      . Ms. Hueitt included documents in the reproduced record that were not in the certified record.
      In this regard, our law is the same in both the civil and criminal context because, under the Pennsylvania Rules of Appellate Procedure, any document which is not part of the officially certified record is deemed non-existent-a deficiency which cannot be remedied merely by including copies of the missing documents in a brief or in the reproduced record.... Simply put, if a document is not in the certified record, the Superior Court may not consider it.

        Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (en banc) (citations omitted). Thus, we disregarded any factual allegations made by the parties that were not substantiated by the certified record or outside our scope of review. See id.

      . The parties dispute whether the contractors are independent.

      4. It is unclear whether the trial court was referring to Ms. Hueitt, as the original plaintiff, or the Daily News, as the “joinder plaintiff.” See 202 Island Car Wash, L.P. v. Monridge Const., Inc., 913 A.2d 922, 927 (Pa. Super. 2006) (stating, “where the original defendant has properly joined an additional defendant..., the plaintiff’s case may proceed just as if the plaintiff filed those claims directly against the additional defendant.” (citations omitted)).

      . We acknowledge the allegation that Ms. Hueitt and Mr. Vargas settled a claim. The alleged settlement, however, is not in the certified record. See Preston, 904 A.2d at 6-7. Further, even if the settlement was part of the certified record, we suggest the claim would be outstanding pending compliance with Pa.R.C.P. 229. Pennsylvania Rule of Civil Procedure 229 provides that a “discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of the trial.” Pa.R.C.P. 229 (emphasis added); see also Fed. R. Civ. P. 41. Indeed, marking a case as settled on the docket does not necessarily terminate the case. Cameron v. Great Atl. & Pac. Tea Co., 266 A.2d 715, 717 (Pa. 1970) (holding case was still pending given, inter alia, “tentative nature of the docket entry-‘Case reported settled’”).


author: TUNNELL, J.,

text:
    In re Estate of John R.H. Thouron

      C.P. of Chester County,
    No. 1507-0230

      William H. Lamb and John J. Cunningham, for executor.

      John Chesney and William C. Bullitt, for beneficiaries.
    October 9, 2013
   TUNNELL, J.,

Presently before the court is the petition of Rachel Vere Nicoll and John R. Thouron to disqualify Lamb McErlane P.C. from representing Executor Charles H. Norris, Jr. with respect to the objections to the first account of Charles H. Norris, Jr. (“petition”). For the reasons set forth below, and accepting as true all facts alleged therein, the court denies the petition.

I. FACTS AND PROCEDURAL HISTORY

John R. H. Thouron (“decedent”) died on February 6, 2007, leaving a last will and testament dated October 4, 2005, which was probated in the Office of the Register of Wills of Chester County, Pennsylvania on February 9, 2007, appointing Charles A. Norris, Jr. (“executor”) as personal representative of his estate (the “estate”) upon his death. (Petition of executor for approval to depose witnesses, at ¶1.) On February 16, 2007, the Register of Wills of Chester County, Pennsylvania issued Letters Testamentary to Norris. (Id. at 2.) Since 2006, Lamb McErlane P.C. (“Lamb McErlane”) has represented executor of decedent’s estate. (See Lamb McErlane engagement letter, dated April 13, 2006.) On May 4, 2007, petitioners Rachel Vere Nicoll and John R. Thouron (“beneficiaries”) filed a petition for administration in Martin County, Florida (Case No.: 07-318-CP (Fla. Cir. Ct. 19th Cir.), which opposed executor’s decision to probate the estate in Chester County, Pennsylvania. Lamb McErlane represented executor in the Pennsylvania proceedings. The court is not aware of any time during those proceedings that beneficiaries sought to disqualify Lamb McErlane from representing executor. Despite years of hostile litigation, the parties were unable to “reach an appropriate settlement in these matters.” (Memorandum of law in support of executor’s pet. for ltd. deps., at exs. A-B.) On March 4, 2013, executor filed a first account. On April 3, 2013, beneficiaries filed objections to the first account by executor. On May 28, 2013, beneficiaries filed the present petition. On June 13, 2013, executor filed his response thereto.

II. LEGAL ANALYSIS

A. Both the Avoidance of Conflicts of Interest and a Party’s Right to Choose Its Counsel Are Important Principles.

The Supreme Court of Pennsylvania has stated that “[t]he trial court in the first instance has the power to regulate the conduct of attorneys practicing before it, and has the duty to insure that those attorneys act in accordance with the Code of Professional Responsibility.” Dougherty v. Philadelphia Newspapers, et al., 2013 Phila. Ct. Com. Pl. LEXIS 110, *11 (Phila. 2013)(citing American Dredging Co. v. City of Philadelphia, 389 A.2d 568, 571 (Pa. 1978)). The Pennsylvania Rules of Professional Conduct define proper conduct of attorneys for purposes of professional discipline and define those areas in which an attorney has discretion to exercise professional judgment. Rules of Professional Conduct, Preamble and Scope (14). At issue here, is Pennsylvania Rule of Professional Conduct 1.7(a), which prohibits a lawyer from representing a client “if the representation involves a concurrent conflict of interest.” Rule 1.7(a). Such a conflict exists if there is a significant risk that “the representation of one or more clients will be materially limited by the lawyer’s responsibilities to...a third person.” Rule 1.7(a) and 1.7(a)(2).

Notwithstanding the importance of these rules and the courts’ role in ensuring proper conduct from those practicing before it, courts also recognize that “[a] party’s choice of counsel has a longstanding tradition of receiving substantial deference.” Dougherty, at *10; Hamilton v. Merrill Lynch, 645 F. Supp. 60, 61 (E.D. Pa. 1986). The Supreme Court of Pennsylvania has recognized that disqualification and removal of counsel “is a serious remedy ‘which must be imposed with an awareness of the important interest of the client in representation by counsel of the client’s choice.’” McCarthy v. Septa, 772 A.2d 987, 991-992 (Pa. Super. 2001)(citing Slater v. Rimar, Inc., 338 A.2d 584, 590 (Pa. 1975)). As the court in Commonwealth Ins. Co. v. Graphix Hot Line, Inc. stated, “a court should disqualify an attorney:

‘only when it determines, on the facts of the particular case, that disqualification is an appropriate means of enforcing the applicable disciplinary rules. It should consider the ends that the disciplinary rule is designed to serve and any countervailing policies, such as permitting a litigant to retain counsel of [its] choice and enabling attorneys to practice without excessive restrictions.

808 F. Supp. 1200, 1203 (E.D.Pa. 1992)(citation omitted). The Pennsylvania Supreme Court has held that disqualification is appropriate only if necessary to “insure the parties receive the fair trial which due process requires.” In Re Estate of Pedrick, 482 A.2d 215, 221 (Pa. 1984). As the court in Dougherty aptly noted, because “[m]otions to disqualify are intensely fact specific” courts should apply “a sense of practicality” in deciding such motions. Dougherty, at *12.

B. Beneficiaries’ Delay in Asserting the Disqualification Issue Constitutes a Waiver of Their Objection.

Waiver has been held by several courts to “be a valid basis for denial of amotionto disqualify.” INA Underwriters Ins. Co. v. Nalibotsky, 594 F. Supp. 1199, 1204 (E.D. Pa. 1984)(citations omitted); see also Dougherty, at *13 (holding after fact specific inquiry that delay of one and one-half years constituted waiver of disqualification objection). Waiver has been found to be justified when a former client was aware of the representation of an adversary but failed to raise the objection promptly. Id. Factors courts have considered when deciding the issue of waiver include whether the request for disqualification is being made for tactical purposes, the length of the delay in asserting a disqualification objection, and the potential prejudice to the party whose counsel may be disqualified. See Hamilton, 645 F. Supp. at 61, Kramer v. Scientific Control Corp., 534 F.2d 1085 (3d Cir. 1976).

In Dougherty, plaintiff initiated a defamation action in 2009 against defendant stemming from plaintiff’s candidacy for the state senate and articles and editorials in the newspapers during that time which plaintiff alleged were disparaging. Dougherty, at *1-2. Counsel for defendants previously represented plaintiff in a federal investigation. Id. at *2. Seventeen months later, in 2012, plaintiff moved to disqualify defendants’ counsel because of its alleged conflict, i.e. having represented plaintiff in a substantially related matter. Id. Defendants argued that disqualification was too extreme a sanction and that the seventeen month delay in seeking disqualification was inexcusable and not addressed by plaintiff in his pleadings. Id. at 3, 5. The court, analyzing the facts before it and employing a “sense of practicality,” agreed that plaintiff’s delay was “too long a period to wait” and denied the motion to disqualify. Id. at *12.

1. The Substantial Passage of Time Warrants Denial of Beneficiaries’ Petition to Disqualify Lamb McErlane.

Beneficiaries have been on notice since at least 2007 that Lamb McErlane represented executor and that their view of the estate’s administration may be different from that of the executor. Executor initiated these probate proceedings in Pennsylvania in early 2007. Within three months, and while the proceedings were still ongoing, beneficiaries initiated their own administration proceeding in Florida— clearly in opposition to the position taken by executor, who was represented by Lamb McErlane. At no time during the earlier proceedings in this court did beneficiaries assert that a conflict existed with Lamb McErlane even though then — as now — beneficiaries took a position ‘adverse’ to executor. Beneficiaries certainly felt that probating the matter in Pennsylvania would be to their detriment, yet they did not petition for disqualification of counsel. During this time, beneficiaries were represented by counsel and though they objected then to the actions of executor, they chose not to disqualify. It is evident that during this time the relationship between the parties and counsel was hostile. The parties themselves described their exchanges as “trench warfare.” (Petition to depose, ex. A.) Only in May, 2013, nearly six years later, did beneficiaries assert any concerns about conflicts of interest or the ability of the Lamb McErlane firm to continue its representation of executor in the estate’s administration. As courts have noted, motions to disqualify that are made for purely tactical reasons are highly disfavored. Hamilton, 645 F. Supp. at 61. Here, beneficiaries simply waited too long and after much “water under the bridge” to raise their objection to Lamb McErlane serving as counsel to executor. The length of their delay leads the court to conclude that beneficiaries have raised their objection now for essentially tactical reasons and their petition should, therefore, be denied.

2. Prejudice to the Parties Would Result if Lamb McErlane Were Disqualified.

In the fact specific analysis that a court must undertake when deciding a motion for disqualification, concern for the prejudice that may result to a party who is required to obtain new counsel is an appropriate consideration. INA Underwriters, 594 F. Supp. at 1203; see also Pew Trust (No. 2), 16 Fiduc. Rep. 2d 80 (Ct. Com. Pl., Mont. Cnty. 1995). Clearly, this estate administration has been an extended endeavor involving years of discussion and litigation between beneficiaries and executor through their competent counsel from two respected law firms. Requiring a change in counsel after six years ofproceedings would, in essence, result in executor facing the prospect of going over the minutia of years of estate administration with new counsel. New counsel would have to familiarize itself with all aspects of the Estate and its administration since 2006, including a protracted litigation, as well as the current objections raised by beneficiaries. The court surmises that such an endeavor would result in substantial additional costs and inconvenience to all of the parties, most importantly to beneficiaries, and, therefore, chooses not to go down that path.

C. Even if Beneficiaries’ Objections Had Not Been Waived, Disqualification of Lamb McErlane is Not Required.

Although the court finds that beneficiaries waived any objection to the continuation of Lamb McErlane as counsel for executor by failing to timely raise the issue, even if it were to analyze the conflict issue, its holding would be the same — disqualification is not required. In support of their petition, beneficiaries acknowledge that absent an agreement otherwise “the only client of counsel for the fiduciary is the fiduciary.” (Petition, at ¶4). Executor agrees with beneficiaries on this point. (Response to pet., at ¶14). Further, both parties agree that while beneficiaries are not clients of Lamb McErlane, the firm that represents a fiduciary in an estate owes a derivative duty to beneficiaries. (Petition, at ¶7; response, at ¶14). The parties’ disagreement lies in whether a conflict exists between Lamb McErlane and beneficiaries such that Lamb McErlane cannot represent both executor, against whom objections have been raised, and fulfill its derivative duties to beneficiaries.

Beneficiaries seem to suggest that a conflict exists because any action taken by executor in response to beneficiaries’ objections would, in and of itself, be to the detriment of beneficiaries. They rely primarily on two cases, Pew Trust (No. 2) and In re Estate of Westin, in support of their position. 16 Fiduc. Rep. 2d at 80; 874 A.2d 139 (Super. Ct. 2005). The court finds beneficiaries’ arguments about how continued representation of executor by Lamb McErlane would harm beneficiaries to be too general and lacking specifics to warrant the drastic remedy of disqualification. Moreover, the court finds the facts of Pew Trust (No. 2) and In re Estate of Westin to be distinguishable from those in this case.

In Pew Trust (No. 2), the orphan’s court was presented with objections from beneficiaries in an accounting action involving a corporate trustee that was represented by a law firm that soon would be named individually as a defendant in a companion federal case. Pew Trust (No. 2), 16 Fiduc. Rep. 2d at 85. At the center of the dispute was a tax opinion authored by the law firm and this fact “formed the basis for [the court’s] position” regarding disqualification. Id. at 81. Pursuant to the tax opinion, the firm was alleged to have encouraged the corporate trustee to participate in a $1.36 billion dollar stock transaction. Id. The court held that the firm’s third party responsibilities to the beneficiaries “are derived from the fact that at request of... family members and trustee” the firm did render its tax opinion. Id. at 87. The court’s opinion was also influenced by the fact that the law firm was about to be named as an individual defendant in a companion matter. Id. at 81.

The case of In re Estate of Westin involved creditors of an estate who initiated an action to remove and surcharge the executor, a lawyer, and his firm, who represented the estate, after the estate lost assets due to criminal activity at the firm. 874 A.2d at 142. At a hearing regarding distribution of the estate’s assets, the court learned that an office manager of the law firm had embezzled funds belonging to the estate. Id. After appellants petitioned for removal of the executor, the executor consented to withdraw. Id. Appellant-creditors appealed and asserted, among other things, that the trial court erred by refusing to grant a hearing on the removal of the executor. Id. In discussing its authority to remove a personal representative, the court addressed the appropriateness of removing a fiduciary when the fiduciary’s personal interest is in conflict with that of the estate, such that the two interests cannot be served simultaneously. Id. at 143. Analyzing the facts of the case before it, the court found that where estate funds have been embezzled by the law firm of which its executor is a member, it would be reasonable to assume the estate would have grounds for a claim against the lawyer and the firm. Id. The court was concerned that “[the lawyer] would then be in the position of representing the estate, in his capacity as executor, in a claim against himself and his law firm.” Therefore, the court found there was a conflict of interest requiring a new executor. Id.

The facts here are different from those in either Pew Trust (No. 2) or In Re Estate of Westin. Unlike those cases where the lawyer’s and firm’s conflict was delineated clearly and their actions were central to the objections raise by the petitioners, beneficiaries here have not provided any factual specifics to support their assertion that a conflict exists that would merit removal of Lamb McErlane. Beneficiaries have not delineated how continued representation of executor by Lamb McErlane would be “to the detriment of the beneficiaries.” (Petition, at ¶14.) Paragraph 14 of the petition states only that Lamb McErlane’s derivative duties to beneficiaries prevent them from continuing to represent the estate in addressing the administrative charges to which they object. This alleged “conflict” as stated does not rise, in this court’s view, to the level of conflict presented by the facts in Pew and Westin. Lamb McErlane is not alleged to have authored a legal opinion at the request of beneficiaries that is central to their objections as in Pew, its lawyers have not served as executor for the estate, nor has it been alleged that it engaged in criminal activity as in Westin. Moreover, in each of those cases, the courts’ concerns about conflicts were impacted by the challenged lawyers being subject to individual suit. We do not have those facts here. Rather, what we have is an objection to the reasonableness of the legal fees charged by the firm and certain other administrative charges. As a practical matter, it is not uncommon for beneficiaries to object to an accounting. However, neither party has suggested that in every such situation a conflict of interest arises that requires disqualification of estate counsel. If so, every estate counsel would be disqualified once an objection had been raised by beneficiaries. This is not the approach the courts have taken in such matters. Instead, courts have engaged in a case by case analysis of the facts offered in support of each request and ruled accordingly.

III. CONCLUSION

After considerable analysis of the facts unique to this case and the remedy requested, the court finds that disqualification is not warranted.

An appropriate order follows.

ORDER

And now, this 9th day of October, 2013, upon consideration of the petition of Rachel Vere Nicoll and John R. Thouron to disqualify Lamb McErlane P.C. from Representing Executor Charles H. Norris, Jr. with respect to the objections to the first account of Charles H. Norris, Jr. (“petition”), accepting as true all facts alleged in the petition, and the response thereto, it is hereby ordered and decreed that the petition is denied.

      . In Pew Trust (No. 2), the court defines derivative duties as “prohibitions from the lawyer taking advantage of his or her position to the detriment of the fiduciary estate or its beneficiaries.” 16 Fiduc. Rep. 2d at 85.

      . The fact that Lamb McErlane might be called upon to testify regarding the reasonableness of their fees does not mandate disqualification under Rule 3.7. As the court in Pew Trust (No. 2) noted, the exception to the general rule prohibiting a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a witness “permits the attorney to continue to serve as an advocate where the testimony relates to the nature and value of the legal services rendered in a case.” Pew Trust (No. 2), at 82; Rule of Prof. Conduct 3.7(a)(2).


author: BERNSTEIN, J.,

text:
    Lipshutz v. St. Monica Manor

      Martin S. Kardon, for plaintiff.

      Jacquelyn J. Ager, Nicholas M. Centrella and Frank L. Emmerich, Jr., for defendants.
    October 16, 2013
   BERNSTEIN, J.,

On May 16, 2013, plaintiffs filed an amended complaint which alleged that substandard care at St. Monica Manor led to plaintiff’s decedent’s untimely death. Plaintiffs assert claims on behalf of plaintiff’s decedent and her estate under Pennsylvania’s Wrongful Death Act and Survival Act statutes. The decedent is survived by four children, Elizabeth Lipshutz, Susan Smit, Donald Fitzsimmons, and Steven Fitzsimmons. On June 5, 2013, defendants St. Monica Manor, Catholic Healthcare Services, and Archdiocese of Philadelphia filed preliminary objections alleging that plaintiffs’ claims are subject to a valid and binding arbitration clause. On June 5, 2013, the parties submitted a joint stipulation agreeing to conduct limited discovery on the enforceability of the arbitration agreement. On July 31,2013, this court ordered discovery, directed plaintiffs to answer defendants’ preliminary objections, and set a hearing date. The hearing was held on September, 17, 2013.

In 1993, plaintiff’s decedent executed a power of attorney (“ 1993 POA”) which appointed her two daughters as attorneys-in-fact. The 1993 POA stated, “This power of attorney shall become effective only upon my disability as certified in writing by two physicians. I would be disabled if I were unable to manage my property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, advanced age, chronic use of drugs, chronic intoxication, confinement, detention by a foreign power, or disappearance.”

On November 4, 2011, plaintiff’s decedent suffered a stroke and was admitted to Jefferson University Hospital (“Jefferson Hospital”). After the stroke, Ms. Lipshutz, plaintiff’s decedent’s daughter and executor of the estate, obtained a letter from plaintiff’s decedent’s physician explaining that the patient’s stroke left her “physically unable to care for her son.” Plaintiff’s decedent remained at Jefferson Hospital for two weeks before she was transferred to defendant St. Monica Manor’s facility. The Jefferson Hospital discharge records state that plaintiff’s decedent had an “impaired mental status.” They also demonstrate that she was unable to feed herself.

Plaintiff’s decedent entered St. Monica Manor on November 11, 2011. Plaintiff’s decedent’s records demonstrate that upon admission she was confused. Some days later, as part of the formal admission process, Ms. Lipshutz signed an admission agreement. That agreement contained a mandatory arbitration clause. St. Monica Manor accepted Ms. Lipshutz’s signature pursuant to her power under the 1993 POA which was made part of the nursing home records. She was the only one of plaintiff’s decedent’s four surviving children to sign the arbitration agreement.

This case presents issues of first impression concerning federal preemption and the neutral application of general Pennsylvania contract law. It also raises issues of the validity of the arbitration agreement, whether the agreement is binding on other children who may recover under the survival and wrongful death statutes, whether the court can properly sever one of four claimants under the statutes, or even separate the wrongful death from the survival claims.

Ms. Liphutz signed the admission agreement pursuant to her authority under the 1993 POA. This POA specifically required the decedent’s disability be “certified in writing” by two physicians. Plaintiffs claim that this formal certification is a prerequisite to any authority, and therefore, the court cannot look to the totality of circumstances to make any factual determination about the validity of the POA at the time the arbitration agreement was signed. However, where continued care is essential to a patient’s well being, as it clearly was here, the court must make an ex post facto determination as to the patient’s actual disability. If healthcare facilities were required to wait for formal certifications, patients would be forced to await formalities before desperately needed care was provided. In the case of seriously ill or injured patients, this is literally the difference between life and death. The court must look to the totality of the evidence presented.

The medical records demonstrate that plaintiff’s decedent was disabled as defined by the POA when she entered St. Monica Manor. After her stroke, plaintiff’s decedent spent weeks at Jefferson Hospital. Her physician believed that her physical condition prevented her from continuing as her disabled son’s guardian. Likewise, the hospital discharging physician believed that her mental status was impaired. She remained confused at St. Monica Manor. The evidence clearly demonstrates that when the arbitration agreement was signed, plaintiff’s decedent was unable to manage her affairs. Ms. Lipshutz had authority to act on her mother’s behalf with or without formal “certifications.”

This raises the issue of for whom, and for what claims, that signature is binding. In the only relevant Pennsylvania authority, Pisano v. Extendicare Homes, Inc., the Superior Court was presented with these issues. Plaintiff’s decedent entered a long-term care facility. His daughter, Ms. Pisano, held a power of attorney for her father. She signed an admission agreement on his behalf. Plaintiff’s decedent’s surviving children brought a wrongful death claim against the facility. Ms. Pisano was not a party to the action and disclaimed any interest in any litigation proceeds. The facility claimed that the case must go to arbitration.

To determine whether the arbitration agreement was binding on wrongful death claimants, the Superior Court first considered Pennsylvania’s well-established public policy favoring arbitration, which aligns with the federal policy expressed in the FAA. “The fundamental purpose of the Federal Arbitration Act is to relieve the parties from expensive litigation and ‘to help ease the current congestion of court calendars.’” However, this policy was not intended to place arbitration agreements above other contracts. “The FAA had not been designed to preempt all state lawrelatedto arbitration.” Rather, “when addressing the specific issue of whether there is a valid agreement to arbitrate, courts generally should apply ordinary state-law principles that govern the formation of contracts, but in doing so, must give due regard to the federal policy favoring arbitration.” In Elwyn v. Deluca, the Superior Court explained that “Even though it is now the policy of the law to favor settlement of disputes by arbitration and to promote the swift and orderly disposition of claims, arbitration agreements are to be strictly construed and such agreements should not be extended by implication. In general, only parties to an arbitration agreement are subject to arbitration.”

In Pisano, the court found that the nursing home had an agreement only with the decedent, not the decedent’s heirs. Pennsylvania’s wrongful death statute does not characterize wrongful death claimants as third-party beneficiaries. “Wrongful death actions are derivative of decedents’ injuries but are not derivative of decedents’ rights,” and therefore, wrongful death actions are the claims of the decedent’s heirs. To find otherwise would operate against the principles of Pennsylvania contract law and the FAA. Therefore, the court held that the non-signatory wrongful death claimants were not bound by decedents’ contracts and the claims should remain before the court.

This case has significant factual differences from Pisano. In this case, Ms. Lipshutz, who signed the arbitration agreement, is a party. Unlike Pisano, this case presents both wrongful death and survival claims, and therefore implicates Pa. R. C. P. 213(e). Rule 213 (e) says: “A cause of action for wrongful death of a decedent and a cause of action for injuries of the decedent which survives his or her death may be enforced in one action, but if independent actions are commenced they shall be consolidated for trial.” This Rule requires that wrongful death and survival claims be litigated together. In light these considerations, as well as Federal Supreme Court precedent regarding the enforceability of arbitration agreements, this court must decide where the various claims of the individual claimants will be adjudicated.

Since Ms. Lipshulz signed the arbitration agreement in her representative capacity, the survival claims, the claims of decedent before her death which survive her death, must be remanded to arbitration. The Pennsylvania Rule of Civil Procedure which requires that survival and wrongful death actions be litigated together is intended to conserve judicial resources and preclude inconsistent results such as the duplication of damages. However, were this court to order both the wrongful death and survival actions to remain in court, the decedent’s arbitration agreement, valid through her daughter’s signature, would be nullified. Such nullification is preempted by the FAA and recent United States Supreme Court interpretations. Both the FAA and Pennsylvania law reflect a liberal policy favoring arbitration. The FAA provides that a written arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any such contract.”

The U.S. Supreme Court recently dealt with the exact issue of arbitration agreements in the nursing home context and found that states may not treat these arbitration agreements differently from any other contract. In Marmet Healthcare Center, Inc. v. Brown, the U.S. Supreme Court recently ruled that the FAA contains no exception for personal injury or wrongful death claims against nursing homes. The court held that “West Virginia’s prohibition against predispute agreements to arbitrate personal-injury or wrongful death claims against nursing homes is a categorical rule prohibiting arbitration of a particular type of claim, and that rule is contrary to the terms and coverage of the FAA.”

The Supreme Court has quite narrowly interpreted FAA “grounds for revocation of such contract.” InAT&TMobility LLC v. Concepcion, the U.S. Supreme Court held that the FAA preempted a California Supreme Court rule stating that class waivers in consumer arbitration agreements are unconscionable. The court explained that “although § 2’s saving clause preserves generally applicable contract defenses, it does not suggest an intent to preserve state-law rules that stand as an obstacle to the accomplishment of FAA objectives.” Therefore, preemption by the FAA, as interpreted by the U.S. Supreme Court, precludes the survival action remaining before this court.

This trial court must be guided both by the U. S. Supreme Court decisions and by the valid Pennsylvania Superior Court holdings. The Pisano court held that arbitration agreements are not binding on non-signatory beneficiaries. The Pisano court relied on the neutral principle of contract law that one who is not a party to a contract cannot be bound by it. Here, Ms. Lipshutz, a plaintiff, signed the arbitration agreement in her capacity as attorney-in-fact for her mother. When she signed the agreement, she bound the decedent and the decedent’s survival claims to arbitration. Wrongful death and survival claims are distinct actions with differing parties. Therefore, when Ms. Lipshulz signed the arbitration agreement strictly, and only, in her representative capacity, she did not affect her own right, or the rights of the other beneficiaries, to bring wrongful death claims before this court.

Due to FAA preemption, this court must remand the survivor claims to arbitration. Although bifurcation of wrongful death claims from the survival claims runs afoul of the clear import and intent of Pa.R.C.P. 213(e), the main policy considerations underlying this Rule are to prevent the duplication of damages and thus promote judicial economy. However, compensation for loss of earnings is the only significant overlap in damages between the two statutes. Here, there can be virtually no significant claim for lost earnings. Therefore, this concern is insufficient to override shared state and federal policy promoting arbitration. Similarly, an interest in promoting judicial economy is insufficient, standing alone, to override a joint state and federal policy and federal preemption. Thus, the wrongful death claims must remain before this court, and the survival claims are remanded to arbitration.

For the reasons set forth above, defendant’s motion is granted in part and denied in part.

ORDER

And now, this 16th day of October, 2013, upon consideration of the defendant’s preliminary objections, and any responses thereto, it is hereby ordered and decreed that the preliminary objections are denied in part and sustained in part. The wrongful death claims must remain before this court, and the survival claims are remanded to binding arbitration pursuant to the arbitration agreement. All other preliminary objections are denied.

      . 11/17/11 letter of Dr. Timothy Ambrose.

      . Jefferson Hospital Hospital discharge summary.

      . St. Monica’s Manor 11/22/11 progress report.

      . The agreement is dated November 21,2011.

      . The Federal Arbitration Act (“FAA”) provides that a written arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any such contract.” 9 U.S.C. § 2.

      . See Pa. R.C.P. 213(e).

      )2013 Pa. Super. 232 (Pa. Super 2013).

        .Id. at2.

      . Id. at 8 (citing Gaffer Ins. Co., Ltd. v. Discover Reinsurance Co., 936 A.2d 1109, 1112 (Pa. Super. Ct. 2007)).

      . Joseph Muller Corporationurich v. Commonwealth Petrochemicals, Inc., 334 F. Supp. 1013, 1019 (S.D.N.Y. 1971) (quoting Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 410 (2d Cir. 1959)).

      . Gaffer, 936 A.2dat 1113-1114 (citing E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 293-294).

      . Gaffer, 936 A.2d at 1114 (internal quotation omitted).

      . 48 A.3d 847 (Pa. Super. 2012).

      . Id. at 461.; see also Schoellhammer’s Hatboro Manor, Inc. v. Local Joint Executive Board of Philadelphia, 231 A.2d 160, 164 (Pa. 1967) (declining to compel non-signatory of agreement to submit to arbitration because “arbitration, as a matter of contract, should not be compelled of a party unless such party, by contract, has agreed to such arbitration”).

      . Pisano, 2013 Pa. Super, at 7.

      . The Wrongful Death Act permits claims for the damages of the decedent’s heirs, namely: the monetary value of services, society, and comfort they would have received from decedent, as well as damages for reasonable hospital, nursing, medical, funeral expenses and expenses of estate administration stemming from the injury. 42 Pa. C.S.A. § 8301.

      . Pisano, 2013 Pa. Super, at 9 (quoting E.E.O.C., 534 U.S. at 293) (“Notwithstanding this favorable federal policy towards arbitration agreements, the Federal Arbitration Act does not require parties to arbitrate when they have not agreed to do so).

      . Pa. R.C.P. 213(e); Pezzulli v. D’Ambrosia, 26 A.2d 659 (Pa. 1942). Although the two actions are distinct, damages of each likely arise from the same fund-the lost earning power of the decedent. McClinton v. White, 427 A.2d 218, 221 (Pa. Super. 1981), order vacated on other grounds, 444 A.2d 85 (Pa. 1982).

      . Marmet Healthcare Center, Inc. v. Brown, 132 S. Ct. 1201 (2012); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011); Buckeye Check Cashing Inc. v. Cardegna, 546 U.S. 440 (2006).

      . 9 U.S.C. § 2.

      . 132 S.Ct. 1201 (2012).

      . Id. at 1203-04.

      . AT&T Mobility LLC., 131 S. Ct. at 1740.

      . Id. at 1743.

      . Pezzulli v. D‘Ambrosia, 26 A.2d at 662. (“There is an important limitation on the right to bring actions under both the death act and survival statute, namely, that it must not work a duplication of damages.”).

      . 42 Pa.S.C.A. § 8301; 42 Pa.S.C.A. § 8302.


author: NEW, J.,

text:
    Barnabei v. Schell

      John Francis Hanahan, for plaintiff/appellant.

      Jeffrey Adrian van der Kwast, for defendants/appellees.
    August 20, 2013
   NEW, J.,

Plaintiff Robert Barnabei has appealed the order of this court dated May 20, 2013, sustaining Joseph Schell’s preliminary objections to venue and transferring this matter to Delaware County, Pennsylvania. For the reasons discussed herein, this court respectfully requests the order be affirmed on appeal.

PROCEDURAL AND FACTUAL HISTORY

Plaintiff Robert Barnabei (hereinafter “plaintiff’) commenced this personal injury action against Joseph Schell and Frederick Schell by way of complaint on March 18, 2013. The underlying facts of this litigation are as follows. On May 6, 2011, plaintiff was involved in an accident in Delaware County when he was a passenger in a car driven by defendant Joseph Schell (hereinafter “defendant”).

Prior to the accident, defendant was tailgating at a Phillies Game at Citizens Bank Park in Philadelphia, Pennsylvania where defendant allegedly became intoxicated. After leaving the game, defendant was involved in the single-car accident in Delaware County. Plaintiff was a passenger in the car defendant was driving at the time of the accident. The police report lists the cause of the accident as driving too fast for the conditions and losing control of the vehicle. Upon further investigation, it was found defendant had been drinking and was subsequently arrested for driving under the influence. Plaintiff’s complaint for negligence seeks compensatory and punitive damages in connection with the accident.

On February 12, 2013, defendant filed preliminary objections, challenging, inter alia, venue in Philadelphia County. Defendant argued venue is improper in Philadelphia County since defendant was not amenable to service in Philadelphia and plaintiff’s cause of action did not arise in Philadelphia County. Plaintiff responded on May 15, 2013. By court order dated May 20, 2013, this court sustained defendant’s objection to venue and directed a transfer of the matter to Delaware County, Pennsylvania. Plaintiff filed the instant appeal on June 18, 2013 and a Pennsylvania Rule of Appellate Procedure 1925(b) statement of errors complained on July 10,2013.

LEGAL ANALYSIS

“A trial court’s ruling on venue will not be disturbed if the decision is reasonable in light of the facts.” “If there is any basis to affirm a trial court’s decision to transfer venue, the decision must stand.” “Moreover, the standard of review is one of abuse of discretion. An abuse of discretion is shown by a record of misapplication of the law, or judgment that is manifestly unreasonable, or motivated by partiality, prejudice, bias, or ill-will.”

On appeal, plaintiff claims this court erred in determining venue could not be laid against defendant in Philadelphia County. Pennsylvania Rules of Civil Procedure (hereinafter “Pa. R.C.P.”) 1006 governs venue over an individual defendant, providing:

Rule 1006. Venue. Change of Venue

(a) Except as otherwise provided by subdivisions (a.l), (b) and (c) of this rule, an action against an individual may be brought only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.

In the case sub judice, defendant was served in Delaware County, and plaintiff does not dispute the cause of action arose in Delaware County. Rather, plaintiff argues Philadelphia County is the county in which “an occurrence took place out of which the cause of action arose” since “part of [defendant’s] negligent acts were committed in Philadelphia.” According to plaintiff, the “occurrence” is defendant’s “act of driving under the influence of alcohol which was initiated by [djefendant’s drinking of intoxicating beverages in Philadelphia County.”

The dispositive issue in this matter, therefore, centers upon the determination of whether defendant’s alleged act of becoming intoxicated and driving while intoxicated in Philadelphia County constitutes an “occurrence” out of which the Delaware County cause of action arose.

In Craig v. W.J. Theile & Sons, Inc., the Pennsylvania Supreme Court held a “part of a transaction” does not establish a “transaction” for the purposes of determining venue. In so holding, the Pennsylvania Supreme Court noted paragraph (a)(4) of Rule 2179, governing venue of corporations, was drafted from the Illinois Code of Civil Practice. However, the Pennsylvania and Illinois rule differed significantly with respect to what constitutes a “transaction” with respect to venue. Where the Illinois rule provides venue is proper in a county where “the transaction or some part thereof occurred,” the Pennsylvania rule expressly omits the language “or some part thereof.” The Craig court stated:

It becomes significant, therefore, that while we adopted the rule from Illinois we deleted that part of the rule which authorized venue in any county wherein a “part of the transaction” occurred. The framers of our rule must have intended to require that a transaction (in this case the making of a contract) and not merely some part of the transaction, take place in the county where venue is laid.

Next, it was determined an “occurrence” does not mean “part of a transaction.” The Pennsylvania Supreme Court explained:

Nor do we understand the word “occurrence” to mean “part of a transaction.” On familiar principles of ejusdem generis the word “occurrence” would not have a broader meaning than “transaction” so as to conform it to “part of a transaction.”

Following Craig, the Pennsylvania Superior Court stated:

Under both [r]ules [1006(a) and 2179(a)(4)], Pennsylvania courts have interpreted “a transaction or occurrence” to “require that a transaction...and not merely some part of a transaction, take place in the county where venue is laid [because] [i]t would lead only to confusion and a practice which we have heretofore referred to a ‘forum shopping’ if the law were to permit suit to be commenced against a [defendant] in any county where any fact of a complex transaction occurred.”

Although decided in the context of a breach of contract action, Pennsylvania courts have applied the holding in Craig to other causes of action. Moreover, as noted by the Kring Court, the language at issue in Craig is identical to the language of rule 1006(a), governing venue of individuals in Pennsylvania.

In Pennsylvania, a negligence action has the following elements: (1) the existence of a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a causal connection between the breach and the resulting injury; and (4) actual loss.

Although plaintiff alleges part of defendant’s negligence occurred in Philadelphia, plaintiff’s negligence claim is based upon defendant’s tortious conduct in Delaware County, which resulted in the accident. Defendant lost control of the vehicle he was driving in Delaware County due to excessive speed. Plaintiff was a passenger in the car at such time, and from this accident, sustained personal injuries. Defendant’s breach of the standard of care in operating the motor vehicle, which is alleged to be causally connected to plaintiff’s injuries, occurred in Delaware County. Thus, the alleged facts that satisfy all the elements for a negligence cause of action occurred in Delaware County.

Moreover, plaintiff’s allegation “part of [defendant’s] acts were committed in Philadelphia” is insufficient to establish venue over defendant in Philadelphia County as it amounts to a “part of an occurrence.” As stated by our Supreme Court, a “part of an transaction” does not constitute a transaction, and “the word ‘occurrence’ would not have a broader meaning than ‘transaction.’” It would be illogical, therefore, to determine a “part of an occurrence” would constitute an “occurrence” in satisfaction of Pa. R.C.P. 1006. At best, plaintiff has merely alleged a part of an occurrence took place in Philadelphia County, which is insufficient to establish an occurrence out of which the Delaware County cause of action arose transpired in Philadelphia County.

Therefore, this court did not abuse its discretion in transferring venue to Delaware County where defendant was served and the cause of action arose.

CONCLUSION

Wherefore, for the reasons stated above, it is respectfully requested the court’s order dated May 20, 2013 be affirmed on appeal.

      . This matter was originally filed in the major non-jury program. However, it was transferred to the major jury program on April 26,2013 after a jury trial was perfected.

      . Pursuant to this transfer, this court did not rule on the remaining preliminary objections. See Bradley v. O’Donoghue, 823 A.2d 1038, 1042 (Pa. Cmwlth. 2003) (“[Wjhen atrial court grants a change of venue through preliminary objections, it is without further authority to decide any remaining preliminary objections.”).

      . Plaintiff’s appeal of this order is proper under Pennsylvania Rules of Appellate Procedure 311, Interlocutory Appeals as of Right, as the court’s order changed venue in the matter. See Pa. R.A.P. 311(c).

      . Sunderland v. R.A. Barlow Homebuilders, 791 A.2d 384, 387 (Pa. Super. 2002) (citing Mathues v. Tim-Bar Corp, 438 Pa. Super. 231, 234, 652 A.2d 349, 351 (1994)).

      . Kring v. Univ. of Pittsburgh, 829 A.2d 673, 675 (Pa. Super. 2003) (citation omitted).

      . Id. (quotation omitted).

      . Pa. R.C.P. 1006(a).

      . Response to defendant’s preliminary objections, ¶¶4, 8, 10-12; see also plaintiff’s memorandum of law in opposition to defendant’s preliminary objections at 2.

      . Plaintiff’s Rule 1925(b) statement of errors complained of on appeal, ¶18.

      . Craig v. W.J. Thiele & Sons, Inc., 395 Pa. 129, 149 A.2d 35 (1959).

      . The Craig Court examined Pa. R.C.P. 2179 for purposes of establishing venue “where a transaction or occurrence took place out of which the cause of action arose.” Pa. R.C.P. 1006(a) employs identical language in determining whether venue in a particular county is proper against an individual.

        . Craig, 395 Pa. at 133-34, 149 A.2d at 37.

      . Id. at 134, 149 A.2d 37.

      . Id.

      . Kring, 829 A.2d at 678 (quoting Craig, 395 Pa. at 133-34, 149 A.2d at 37).

      . See, e.g., Harris v. Brill, 844 A.2d 567 (Pa. Super. 2004) (wrongful use of civil proceedings); Sunderland, supra (wrongful death); Estate of Werner v. Werner, 781 A.2d 188 (Pa. Super. 2001) (civil conspiracy); Stein v. Crown Am. Realty Trust, 54 Pa. D.&C. 4th 383 (Pa. Com. Pl. Philadelphia County Oct. 1, 2001) (Sheppard, J.) (unjust enrichment).

      . See Unglo v. Zubik, 29 A.3d 810, 813 (citation omitted); see also Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 596 (Pa. 2012).

      . Craig, 395 Pa. at 133-34, 149 A.2d at 37.