author: KUNSELMAN, P.J.,

text:
    In re Antonini

      C.P. of Beaver County,
    no. 10655 of 2005.

      James J. Ross, for plaintiff.

      Douglas R. Nolan, for defendant.
    June 24, 2005
   KUNSELMAN, P.J.,

The matter before the court is an appeal by Enrico Anthony Antonini from the action of the Board of School Directors of Western Beaver School District in terminating Antonini as Superintendent of Schools of Western Beaver Area School District. Therein, Antonini alleges that he is entitled to have the action of Western Beaver set aside for several reasons, or, in the alternative, that he is entitled to a de novo review because of the bias and partiality of several of the school directors. He claims that the action of Western Beaver must be set aside because: (1) the statement of charges were defective in several respects; (2) Antonini was only given a predetermination notice of three of the four charges by Western Beaver; and (3) the factual basis of the charges has already been decided against Western Beaver and so the present charges are foreclosed by the principal of collateral estoppel or res judicata.

DEFECTIVE STATEMENT OF CHARGES

Antonini claims that the statement of charges were defective because they were not approved by vote of the school board and because the signature of the board’s secretary on the statement of charges was secured by fraud. It is clear from the testimony and evidence in the record that the school board never formally authorized the charges by vote taken at a regular or special meeting of the board. It is also clear from the testimony and evidence in the record that the signature of the board secretary on the statement of charges was secured by deceit on the part of the school board’s solicitor. He made her believe she was signing something else and, when she tried to turn the paper to examine the first several sheets, he prevented her from doing so. The question is whether the failure of the board to approve the charges or the obtaining of the secretary’s signature to the statement of charges by deceit is fatal to the proceeding before Western Beaver. We conclude that they are not.

There is no specific statutory or case authority which dictates the procedure which must be followed to terminate a superintendent of schools. The section of the School Code which governs the removal of a superintendent provides as follows:

“District superintendents and assistant district superintendents may be removed from office, after hearing, by a majority vote of the board of school directors of the district, for neglect of duty, incompetency, intemperance, or immorality, of which hearing notice of at least one week has been sent by mail to the accused, as well as to each member of the board of school directors.” 24 P.S. §10 — 1080.

In contrast, the section of the School Code which governs the dismissal of tenured professional employees sets forth specific procedural requirements. That section requires a school board to furnish such an employee with a detailed written statement of charges and to conduct a hearing. Written notice of the hearing and the detailed statement of charges must be signed by the president and attested by the secretary of the school board and must be mailed by registered mail. The hearing cannot be sooner than 10 days nor later than 15 days from the written notice and the school board must have the hearing recorded by a public stenographer. These requirements are set forth in 24 P.S. §11 — 1127.

Antonini argues that, since no procedure is set forth in section 10 — 1080, the procedure set forth in section 11— 1127 must be followed. In fact, he contends, Western Beaver did attempt to follow this procedure but failed since the board did not vote to approve the charges and since the secretary of the board did not knowingly attest to the written statement of charges. We reject this argument. Section 11 — 1127 specifically applies to tenured professional employees and not to superintendents. Where specific language is included in one section of a statute but not in another, the language should not be implied where excluded. Fonner v. Shandon Inc., 555 Pa. 370, 378, 724 A.2d 903, 907 (1999). The omission of specific language from a similar provision is significant to show a different legislative intent. Id. at 379, 724 A.2d at 907. We conclude that section 11 — 1127 does not apply to the removal of a superintendent and that there is no requirement for a formal written statement of charges that must be signed by the president of the school board and attested by the secretary.

We agree with Antonini that a school board can only exercise its authority and power by acting as a body at a meeting duly called and at which particular action can be taken under the law. Edsall v. Jersey Shore Borough, 220 Pa. 591, 597, 70 A. 429, 431 (1908). However, Western Beaver’s failure to approve the charges at a public meeting by vote of its members is not fatal to its power to remove Antonini. Actions which are within the scope of the corporate powers of a school board, but not authorized by proper action, may be ratified by the board. Kline v. Hampton Twp., 42 D.&C.2d 49, 56 (Allegheny Cty. 1967). We conclude that the action of Western Beaver in removing Antonini amounts to a ratification, and so the failure to approve the charges by proper action is not fatal.

PREDETERMINATION NOTICE

The Supreme Court of the United States has held that “[a]n essential principle of due process is that deprivation of life, liberty or property ‘be preceded by notice and opportunity for hearing’. . . .” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). The court went on to hold that some form of a predetermination hearing was required in order to provide the employee with an opportunity to respond prior to termination. Id.

In the case at bar, Attorney Smart, who investigated the complaints for Western Beaver, sent Antonini a letter outlining three charges he had investigated: (1) improper use of school funds to pay tuition of two teachers enrolled in a Principal Certification Program; (2) failure to complete construction of a handicapped restroom prior to the commencement of the 2004-2005 school year; and (3) authorization of the construction of the restroom without securing quotes for the work in violation of the Pennsylvania Public School Code. Attorney Smart then conducted a predetermination hearing on these three charges at which Antonini had an opportunity to respond. However, the charges upon which Western Beaver acted to remove Antonini included a fourth charge — the tuition payments referred to above were contrary to the terms of the collective bargaining agreement between Western Beaver and the Western Beaver Education Association. Because Antonini was not provided a predetermination notice of this charge, it must be dismissed as a violation of Cleveland Board of Education v. Loudermill, supra.

COLLATERAL ESTOPPEL OR RES JUDICATA

Prior to Antonini’s removal, WesternBeaver suspended him with pay pending an investigation. The charges were identical to those which were contained in the formal statement of charges. Antonini filed a mandamus action to compel his reinstatement. The issue in the mandamus action was whether or not the conduct complained of was “serious misconduct” that would justify a suspension without the due process hearing required by section 10 — 1020 of the School Code. We held that the evidence did not establish “serious misconduct” and ordered Antonini reinstated.

Antonini now contends that our finding in the mandamus action precludes Western Beaver from proceeding further. We disagree. As we said, the issue in the mandamus action was whether Antonini’s conduct amounted to “serious misconduct.” However, the issue in the present proceeding is whether Antonini’s conduct constitutes “neglect of duty, incompetency, intemperance, or immorality.” Thus, while the conduct may be the same, the issues are different. In addition, the mandamus action established that Antonini could not be suspended without a due process hearing. These proceedings were intended to provide that hearing. Therefore, Western Beaver was not precluded from proceeding further.

DE NOVO REVIEW

Antonini contends that he is entitled to a de novo review because the bias and prejudice of a majority of the school board, as well as the conduct and comments of its solicitor, prevented him from having a due process hearing. He acknowledges that, under the Local Agency Law, the court is to hear an appeal on the record of the proceedings before Western Beaver unless the adjudication was in violation of his constitutional rights, an error of law was committed, the procedure was contrary to statute or a finding of fact made by Western Beaver and necessary to support the adjudication is not supported by substantial evidence. 2 Pa.C.S. §754(b). However, he relies on Belle Vernon Area School District v. Gilmer, 51 Pa. Commw. 603, 415 A.2d 121 (1980), for an exception to that rule. In that case, the Commonwealth Court held that, when bias, or the appearance of bias, on the part of the local agency is established, it can warrant the withdrawal of the matter from the local agency and a de novo review of the matter.

Thus, Antonini contends that he has established the bias and prejudice of Western Beaver, and so we are not required to affirm Western Beaver’s adjudication but should, instead, conduct a de novo review. Antonini preserved this contention by presenting evidence of bias and prejudice, and requesting the members of Western Beaver to recuse themselves. We shall make findings on this issue based upon the record of testimony and evidence presented on February 16 and 17, 2005.

Stephen Girting is a member of Western Beaver who voted to remove Antonini. Mr. Girting was the football coach at Riverside High School. During his tenure as coach, Antonini was a member of the WPIAL Board of Control which had ruled one of Riverside’s football players ineligible. As a result, Riverside was required to forfeit all games in which the player participated. Because of that, Mr. Girting approached Antonini and said that Antonini and the other members of the Board of Control were “pompous assholes.” Antonini then called the superintendent of Riverside School District and reported that incident. After, Mr. Girting became a member of Western Beaver, and at a meeting, the purpose of which was to discuss the handicapped restroom, Mr. Girting told Antonini that he had no business calling the Riverside superintendent and telling him about the incident. Further, Mr. Girting, at the conclusion of Antonini’s testimony, made statements and cross-examined Antonini to dispute Antonini’s testimony as to the identity of the superintendent of Riverside School District and as to the location of the confrontation he had with Antonini. Finally, Mr. Girting openly campaigned to be elected to the school board for the purpose of removing Antonini.

Ronald Young is a member of Western Beaver who voted to remove Antonini. Mr. Young was a former principal at the school district who worked under Antonini and who later retired. During the years that they worked together, he and Antonini had differences. Mr. Young’s proposed retirement package was rejected by Western Beaver and he blamed Antonini for that. He also complained to Antonini at an executive session that Antonini had spoken to his supervisor. Mr. Young also openly campaigned to be elected to the school board for the purpose of removing Antonini. Finally, at the conclusion of Antonini’s testimony, Mr. Young made a statement and cross-examined Antonini to dispute Antonini’s testimony as to Young’s employment.

Julie Modany is a member of Western Beaver who voted to remove Antonini. Ms. Modany blamed Antonini for problems she perceived with an enrichment program and the gifted program. She was also the daughter-in-law of the owner of a construction company with which Western Beaver had contracted to build an auxiliary gymnasium. A disagreement had developed between the contractor and the architect concerning the cement and Antonini supported the architect’s position. Ms. Modany confronted Antonini about the role he played in resolving that dispute.

Hubert J. Kovalesky Jr. is a member of Western Beaver who voted to remove Antonini. Mr. Kovalesky participated at the board meeting during which Antonini was reinstated pursuant to our order in the mandamus action. Mr. Kovalesky voted not to reinstate Antonini despite the court order to do so. He did so because he did not want Antonini reinstated unless the investigation proved Antonini to be right.

Finally, a letter was distributed to each member of Western Beaver on February 16,2005, immediately prior to the commencement of the hearing before the board on Antonini’s proposed removal. The letter was dated February 15,2005, and was sent to Western Beaver’s solicitor, Myron Sainovich, Esquire, by facsimile on February 16, 2005, at 1:54 p.m. The letter was from Charles W. Jelley, Esquire, and set forth complaints of Antonini’s conduct toward Dr. Maureen Pritchard, the principal at the time. The letter accused Antonini of harassment and retaliation against Dr. Pritchard and referred to “highly sensitive” information.

This letter (Antonini’s exhibit P) was delivered by the solicitor to the president of the school board, Julie Modany, and distributed by Modany to each member of the board. Most members of the board read the letter prior to the commencement of the hearing. Each of the foregoing board members testified that they had not yet reached an opinion as to whether or not the charges against Antonini should be sustained and that their judgment would be based solely upon the evidence presented at the hearing.

Western Beaver relies on Flannery Appeal, 406 Pa. 515, 178 A.2d 751 (1962), for the proposition that Antonini must establish that the board members had opinions which were fixed and unchangeable in order to prove bias. In that case, Flannery, a teacher, was alleged to have misappropriated school funds and was charged with “immorality and incompentency” under the then Public School Code. He contended that he was not afforded a fair hearing because three of the school directors had preconceived ideas of his guilt. The court acknowledged that board members must have some knowledge of the facts in order to make the charges. The court then said:

“That a member of the board had an opinion at the time the charges were preferred... would not disqualify him from participating in a hearing on those charges, or invalidate the proceedings. We do not think anything more was required of the members of the board than that they could hear and determine the charges against appellant on the evidence given before them, uninfluenced by other previous impressions.” Flannery Appeal, supra, 406 Pa. at 521-22, 178 A.2d at 754, quoting Spruce Hill Township School District v. Bryner, 148 Pa. Super. 549, 25 A.2d 745 (1942). The court went on to say that “absent any evidence that such opinion was a fixed and unchangeable opinion or that, in the deliberations of this board after hearing all the evidence, such opinion dictated the result, we cannot say that Flannery did not have a fair and impartial trial.” 406 Pa. at 522,178 A.2d at 754.

It is true that board members Girting, Young, Modany and Kovalesky testified that they had not reached an opinion of Antonini’s guilt and that their judgment would be based solely upon the evidence presented. However, we find that testimony to be incredible. Three of the members, Girting, Young and Modany, had personal grudges with Antonini. Girting and Young’s stated purpose in seeking election to the board was to get rid of Antonini. The fourth, Mr. Kovalesky, was unwilling to reinstate Antonini until Antonini proved his innocence of the charges. All of the foregoing shows such bias and prejudice on the part of these board members so as to establish that they were influenced by their prior opinions. This is confirmed by their questions and statements to attack Antonini’s credibility on collateral matters during the hearing.

In addition to actual bias, the record establishes a strong appearance of bias against Antonini when the letter of uncharged conduct was circulated among the board members immediately before the hearing. The timing of this letter and the manner of its appearance before the board is extremely suspect. First, it was communicated to the solicitor by fax in the early afternoon of the day of the hearing. There is nothing in the body of the letter to suggest the need to expedite its delivery to Western Beaver’s solicitor.

When the distribution of the letter is reviewed in the context of the solicitor’s prior actions, which included an attempt to pressure Antonini to resign and the securing of the signature of Paula Kadilak to the formal statement of charges by deceit, it is obvious that the purpose of the letter was to prejudice Antonini before the board.

Under all the circumstances of this case, we are convinced that Antonini has proven actual bias and the appearance of bias that requires the adjudication of Western Beaver to be set aside. As requested, we will retain jurisdiction for the purpose of conducting a de novo review and will schedule a conference with counsel for the parties to enable them to assist the court in determining the manner of review and in drafting a scheduling order. An appropriate order is attached.

ORDER

The adjudication of Western Beaver School District in terminating the employment of Enrico Anthony Antonini as Superintendent of Schools of the Western Beaver Area School District is set aside. The court retains jurisdiction of the matter for the purpose of conducting a de novo review.

Counsel for the parties shall appear in chambers of courtroom no. 7 on July 15, 2005, at 10 a.m. for a conference with the court.


source: Caselaw Access Project

author: ACKERMAN, J.,

license: Public Domain

text:
    Adams v. Wyeth

      C.P. of Philadelphia County,
    January Term 2003,
    no. 3452.

      Robert E.J. Curran, for plaintiff.

      Michael T. Scott, for defendants.
    June 13, 2005
   ACKERMAN, J.,

Plaintiff, Laura Adams, appeals this court’s order dated April 12, 2005, and docketed April 15,2005, granting the Wyeth defendants’ motion for summary judgment and dismissing plaintiff’s claims with prejudice. For the following reasons, this court’s order should be Affirmed.

I. BACKGROUND

Plaintiff Adams commenced the within Phen-Fen mass tort action by complaint on January 27, 2003, alleging that she developed moderate aortic regurgitation from ingesting the prescription diet drug, Pondimin, for approximately 300 days beginning January 1996. See Adams short form complaint ¶¶4, 6. Adams’ complaint lists J. Anthony Gillett M.D. as the only physician who prescribed Pondimin to her during this time. See id. at ¶5. Dr. Gillett was a psychiatrist for whom Adams worked as a secretary between 1994 and 1998. Dr. Gillett was never deposed and is assumed by the plaintiff to be deceased. See deposition of Laura Adams, p. 92, Wyeth’s motion for summary judgment, exhibit B; plaintiff’s response to summary judgment, p. 1, n.l. According to Adams’ deposition testimony, “[Dr. Gillett] was an older gentleman, and it’s been 10 years or so. He would be well into his 90s, so I’m assuming that.” See deposition of Laura Adams, p. 92. Absolutely no evidence of any sort, either documentary or testimonial, regarding Dr. Gillett’s reasons for prescribing Pondimin for Adams was presented to this court. The basis of Adams’ action is that Wyeth’s failure to warn of the association between diet drugs and heart valve damage was the cause of her injury.

On March 21,2005, Wyeth moved for summary judgment, arguing that Adams was unable to prove that a different warning regarding the association between the ingestion of Pondimin and valvular heart disease would have prevented Dr. Gillett from prescribing her the Pondimin. Wyeth further argued that, without this evidence, Adams cannot prove that Wyeth’s alleged failure to warn was the proximate cause of her alleged heart valve injury.

In her response to Wyeth’s motion, Adams argued that she is entitled to a reasonable inference that, had Wyeth provided an adequate warning to her and her physician, that warning would have been read and heeded, and her injury would have been avoided. To support her argument, Adams attached to her response the affidavit of Harris Busch M.D., Ph.D., a pharmaceutical consultant, wherein he stated:

“In my opinion, Wyeth did not adequately warn health care professionals regarding the risks associated with the use of fenfluramine or dexfenfluramine, including the risk of valvular heart disease. In my opinion, the risks outweighed any possible but unproven benefit of fenfluramine or dexfenfluramine. In my opinion, if Wyeth had adequately warned regarding the medical risks associated with the use of fenfluramine and dexfenfluramine, no reasonable doctor or health care professional would have prescribed these drugs.” See affidavit of Harris Busch M.D., Ph.D., plaintiff’s response to Wyeth’s motion for summary judgment, exhibit A.

Adams argued that Dr. Busch’s testimony satisfied her burden on proximate cause and was adequate evidence for a jury to infer that Dr. Gillett, as a “reasonable doctor,” would not have prescribed Pondimin had he received a different warning.

On April 12, 2005, after consideration of Wyeth’s motion, Adams’ response thereto and Wyeth’s reply, this court granted summary judgment in Wyeth’s favor and dismissed plaintiff’s action with prejudice.

On May 2, 2005, Adams timely filed this appeal. On May 16, 2005, in response to this court’s order, Adams filed her concise statement of matters pursuant to Pa. R.A.P. 1925(b). Plaintiff complains generally that this court committed an error of law in granting Wyeth’s motion for summary judgment and raises the following sub-issues:

(1) Whether plaintiff’s summary judgment evidence raised material issues of fact precluding summary judgment for defendants.
(2) Whether the Nanty-Glo rule precludes summary judgment for defendants.
(3) Whether the trial court applied an unduly restrictive interpretation of proximate cause.
(4) Whether plaintiff is entitled to a rebuttable heeding presumption that, had her prescribing doctor been given a warning, he would have heeded the warning and either told her of the risk or refused to prescribe the drug.

II. DISCUSSION

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law.” Pa.R.C.P. 1035.2. “A proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury.” Biernacki v. Presque Isle Condos. Unit Owners Ass ’n, 828 A.2d 1114, 1116 (Pa. Super. 2003) (quoting Grandelli v. Methodist Hospital, 777 A.2d 1138, 1143 (Pa. Super. 2001)). Where a motion for summary judgment is based upon insufficient evidence of facts, the adverse party must come forward with evidence essential to preserve the cause of action and, if he fails to do so, the moving party is entitled to judgment as a matter of law. See id.

The standard for reviewing a trial court’s grant of summary judgment is well established: the reviewing court must “view the record in the light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine issue of material fact in its favor.” Haney v. Pagnanelli, 830 A.2d 978, 980 (Pa. Super. 2003) (quoting Juniata Valley Bank v. Martin Oil Co., 736 A.2d 650, 655 (Pa. Super. 1999)). “In reviewing a grant of summary judgment, the appellate court may disturb the trial court’s order only upon an error of law or an abuse of discretion.” Biernacki, 828 A.2d at 1116.

The purpose of summary judgment under Rule 1035.2 is “to eliminate cases prior to trial where a party cannot make out a claim or a defense after relevant discovery has been completed.” Miller v. Sacred Heart Hospital, 753 A.2d 829, 833 (Pa. Super. 2000) (quoting Eaddy v. Hamaty, 694 A.2d 639, 643 (Pa. Super. 1997)). A plaintiff “must state a prima facie case before he will be allowed to proceed to trial.” Eaddy, 694 A.2d at 643. (emphasis in original)

At issue in the instant case is whether the record before this court contained sufficient evidence to permit Adams to proceed to trial. Specifically, Wyeth argued that Adams failed to establish proximate causation because she was unable to prove that Dr. Gillett would have altered his prescribing habits had he received a warning which included the association between Pondimin and valvular heart disease. After careful review of the record, this court concluded that Adams failed to carry her burden, and summary judgment was warranted.

“There is no question that manufacturers of potentially dangerous drugs are held to a high degree of care.” Incollingo v. Ewing, 444 Pa. 263, 286, 282 A.2d 206, 219 (1971). But unlike the duty imposed on most product manufacturers, Pennsylvania courts have repeatedly refused to impose strict liability on manufacturers of prescription drugs. See Hahn v. Richter, 543 Pa. 558, 563, 673 A.2d 888, 891 (1996) (“[Wjhere the adequacy of warnings associated with prescription drugs is at issue, the failure of the manufacturer to exercise reasonable care to warn of dangers, i.e., the manufacturer’s negligence, is the only recognized basis of liability.”); Baldino v. Castagna, 505 Pa. 239, 244, 478 A.2d 807, 810 (1984) (“[AJssuming proper preparation and warning, a manufacturer of drugs is not strictly liable for unfortunate consequences attending the use of otherwise useful and desirable products which are attended with a known but apparently reasonable risk.”); Incollingo v. Ewing, 444 Pa. at 288, 282 A.2d at 219-20. Pennsylvania courts have recognized that “[tjhere are some products which, in the present state of human knowledge, are quite incapable of being made safe for their ordinary and intended use. These are especially common in the field of drugs ....” Coyle v. Richardson-Merrell Inc., 526 Pa. 208, 213, 584 A.2d 1383, 1385 (1991) (citing Restatement (Second) of Torts §402A (1965), Comment k).

Accordingly, a “manufacturer [of prescription drugs] is liable only if he fails to exercise reasonable care to inform those for whose use the article is supplied of the facts which make it likely to be dangerous.” Baldino, 505 Pa. at 244, 478 A.2d at 810. This duty to warn runs not to the patient or the general public, however, but to the prescribing physician. See Incollingo, 444 Pa. at 288, 282 A.2d at 220 (“Since the drug was available only upon prescription of a duly licensed physician, the warning required is not to the general public or to the patient, but to the prescribing doctor.”); Rosci v. Acromed Inc., 447 Pa. Super. 403, 423, 669 A.2d 959, 969 (1995) (“The intended ‘user’ in a case involving a prescription drug or device is, of course, the prescribing physician.”); Leibowitz v. Ortho Pharmaceutical Corp., 224 Pa. Super. 418, 431, 307 A.2d 449, 457 (1973) (“It is for the prescribing physician to use his own independent medical judgment, taking into account the data supplied to him from the drug manufacturer, other medical literature, and any other source available to him, and weighing that knowledge against the personal medical history of his patient, whether to prescribe a given drug.”); Demmler v. SmithKline Beecham Corp., 448 Pa. Super. 425, 431, 671 A.2d 1151, 1154 (1996) (A “prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient” and weigh “the benefits of any medication against its potential dangers.”). In discussing the rationale behind what has come to be known as the “learned intermediary” doctrine, the Leibowitz court explained:

“In approving a drug for marketing purposes, the F.D.A. is ever mindful of risks inherent in the use of a proposed drug. It also approves same because of the benefit said drug may have for the public as a whole. Every surgical procedure carries certain risks, as do driving an automobile or crossing an intersection. As different standards apply in the case of prescription drugs and over-the-counter drugs (the former requiring that the prescribing physician exercise the final judgment in each case), the risks must be balanced against the utility to the public-at-large. The warnings are directed to the prescribing physician who must make that balancing judgment in light of his personal knowledge of the patient’s medical history.” Leibowitz, 224 Pa. Super, at 432, 307 A.2d at 457-58.

Furthermore, “assuming that plaintiff[] [has] established both duty and a failure to warn, plaintiff[] must further establish proximate causation by showing that, had defendant issued a proper warning to the learned intermediary, he would have altered his behavior and the injury would have been avoided.” Demmler, 448 Pa. Super. at 434,671 A.2d at 115 5. Significantly, “ [i]n the event that a warning is inadequate, proximate cause is not presumed.” Id. Thus, where defendant has moved for summary judgment, in order to proceed to trial, the burden is on plaintiff to come forward with evidence to show that a different warning would have caused her physician to change his prescribing habits. Id. “[T]o create ajuiy question, the evidence introduced must be of sufficient weight to establish . . . some reasonable likelihood that an adequate warning would have prevented the plaintiff from receiving the drug.” Id. Absent proof that a more thorough or more explicit warning would have prevented plaintiff’s use of the drug, she cannot establish that defendants’ alleged failure to warn was the proximate cause of her injuries. Id.

In the instant case, it is undisputed that the drug Pondimin is available only by prescription and that Dr. Gillett was the only physician to prescribe Pondimin for Adams. Thus, Wyeth’s duty ran directly to Dr. Gillett as Adams’ prescribing physician.

Adams initially alleges that the evidence presented raised material issues of fact which precluded summary judgment pursuant to Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). Under Nanty-Glo, “a court may not summarily enter a judgment where the evidence depends upon oral testimony.” Resolution Trust Corp. v. Urban Redevelopment Authority of Pittsburgh, 536 Pa. 219, 224, 638 A.2d 972, 975 (1994). More specifically, a court is precluded from usurping the role of the jury regarding the credibility of witnesses where genuine issues of material fact have been raised. See Penn Center House Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989).

The precepts of Nanty-Glo are inapplicable to the case at bar, however, as Adams has failed to state a prima facie case. See Miller and Eaddy, supra. As previously noted, to state a prima facie case, Adams had the burden to establish proximate cause by coming forward with evidence of sufficient weight showing that, had Wyeth provided an adequate warning regarding Pondimin ingestion and valvular heart disease, Dr. Gillett would have changed his prescribing habits and she would not have received the drug. See Demmler, supra. This she failed to do.

Adams offers absolutely no evidence, either testimonial or documentary, regarding Dr. Gillett’s prescribing of Pondimin for her. The record before this court also is devoid of what attempts, if any, Adams made to locate Dr. Gillett and secure either his testimony or his records. Adams merely assumes that Dr. Gillett is dead, based on his age at the time he prescribed the Pondimin. See deposition of Laura Adams, p. 92. The mere fact that Adams failed to provide evidence from Dr. Gillett provides no justification for a change or expansion of existing law. Any absence or death of a material witness in any litigation is a risk that falls upon the party who depends upon that witness to satisfy his burden, in this case Adams’ burden. Without some evidence that Dr. Gillett would have changed his prescribing habits, there can be no issue to present to the jury.

Plaintiff Adams, in this case, did not provide any record as to:

(1) What efforts were made by plaintiff to locate Dr. Gillett and determine his availability to testify; or
(2) If the plaintiff could locate Dr. Gillett and he was available to testify, why his testimony was not preserved.

While in extreme circumstances, there might be an interesting argument for the appellate court to consider the liberalization of the learned intermediary doctrine, the absence of an explanatory record in this case does not justify such a review. The burden to produce such an explanatory record falls on the plaintiff, Adams, who has the burden to prove causation which cannot be satisfied with mere assumptions. Without evidence from Dr. Gillett, himself, that he would not have prescribed the Pondimin, Adams is unable to establish that Wyeth’s failure to warn was the proximate cause of her injury. See Demmler, supra.

Contrary to Adams’ assertions, the affidavit of Dr. Busch, attesting to what a “reasonable doctor” would have done had a different warning been supplied is insufficient evidence to create a material issue of fact and satisfy her burden on proximate causation. As Demmler, supra, makes clear, the evidence required to establish a reasonable likelihood is evidence that the learned intermediary, namely, Dr. Gillett, and only Dr. Gillett, would provide to the effect that he, Dr. Gillett, would have altered his behavior. Accordingly, an affidavit or testimony of Dr. Busch as to what a “reasonable doctor” would have done with appropriate knowledge is not admissible, is irrelevant and is contrary to the legal standard long established under Pennsylvania law.

Adams similarly attempts to avoid summary judgment in the absence of evidence from Dr. Gillett by arguing that that she is entitled to a rebuttable presumption that Dr. Gillett would have followed an adequate warning, had Wyeth provided one, and either told her of the risk or refused to prescribe the drug.

The so-called “heeding presumption” was first adopted in Pennsylvania in Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614 (Pa. Super. 1999). In Coward, an asbestos product liability action, our Superior Court discussed at length the adoption of strict liability in this Commonwealth. See id., 729 A.2d at 618-20. Specifically, in adopting strict liability under section 402A, our Supreme Court molded Pennsylvania jurisprudence to “assure injured plaintiffs a right of recovery, regardless of fault, if their injuries were caused by a product lacking any element necessary for its intended use.” Id. at 619. In an attempt to further these policy objectives, the Coward court adopted the heeding presumption in cases “where warnings or instructions are required to make a product non-defective and a warning has not been given” and shifted the burden of production to manufacturers of such products. See id. at 621.

Adams argues that her case, and diet drug cases in general, are similar to the situation in Coward, where the manufacturer and a third party influence plaintiff’s decision to use the defective product. In Coward, it is the employer who chooses to use asbestos in the workplace; in a prescription drug case, plaintiff relies upon the prescribing doctor to do what is in her best interests. Adams concludes, therefore, that, because she is in the position with the least power and the least information, a “heeding presumption” should apply.

After review of existing Pennsylvania case law, we conclude that the “heeding presumption” is not applicable to the instant case as it has been applied exclusively to strict liability claims. It is well-settled in this Commonwealth that negligence is the only recognized basis of liability for failure to warn for manufacturers of prescription drugs. See Incollingo, 444 Pa. at 286, 282 A.2d at 219. Through Incollingo and its progeny, Pennsylvania courts have repeatedly declined to impose strict liability on prescription drug manufacturers. See Hahn, supra; Coyle, supra; Baldino, supra; Incollingo, supra; Rosci, supra; Leibowitz, supra. Our courts have emphasized this guiding principle by repeatedly ruling that, in such cases, the manufacturers’ duty runs not to the patient but to the physician. See Incollingo, 444 Pa. at 288, 282 A.2d at 220. Therefore, Adams’ argument, that she is entitled to a presumption that Dr. Gillett would have heeded a warning of the risk of valvular heart disease, had Wyeth provided one, and refused to prescribe the Pondimin, flies in the face of Pennsylvania jurisprudence and thus fails.

III. CONCLUSION

For the foregoing reasons, this court concludes that Adams cannot establish that Wyeth’s alleged failure to warn of the risk of valvular heart disease was the proximate cause of her injury. Therefore, summary judgment was warranted and this court’s order should be Affirmed.

      . Although not specifically stated in plaintiff’s 1925(b), this court takes notice that plaintiff is referring to Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932).

      . Adams asserts that at least nine states have adopted a heeding presumption in the pharmaceutical context. See Adams’ response to Wyeth’s motion for summary judgment, p. 5 n.3.


author: MELLON, J,

text:
    Cheeseman v. H.A. Berkheimer Inc.

      C.P. of Bucks County,
    no. 2002-06020-27-5.

      Bernard M. Gross, for plaintiffs.

      Scott R. Lipson, for defendants.
    June 9, 2005
   MELLON, J,

Plaintiffs, Robert W. Cheeseman and Kathleen M. Cheeseman, have petitioned this court to certify a class action pursuant to Pennsylvania Rules of Civil Procedure, Rule 1701 et seq. The class they seek to certify consists of the following:

“All Pennsylvania residents who paid improper costs to Berkheimer in connection with the local earned income tax for one or more of the tax years from 1995 through 2001.”

For reasons that will become clear in the course of this opinion, this court has molded the putative class to:

“Any and all Pennsylvania taxpayers who were assessed and paid costs and/or fines imposed by Berkheimer for delinquent taxes prior to the commencement of litigation to collect the delinquent taxes in the Commonwealth of Pennsylvania for the tax years 1995 through 2001.”

In seeking certification, plaintiffs allege that, in contravention of the Pennsylvania Local Tax Enabling Act (LTEA), 53 Pa.C.S. §6901 etseq., Berkheimer assessed and collected “improper costs.” According to 53 Pa.C.S. §6913VIII(a), a political subdivision and its agent (Berkheimer) are not authorized to assess or collect the costs of collection of unpaid taxes unless and until a suit is brought for such collection. Relying on the foregoing statute, plaintiffs further allege that defendants, in violation of Pennsylvania law, routinely assess and collect improper costs not only from plaintiffs, but also from all similarly situated taxpayers. See plaintiffs’ complaint. After hearing, and upon consideration of the parties’ pleadings, briefs, and supporting memoranda, this court grants plaintiffs’ motion for class certification.

PROCEDURAL HISTORY

Plaintiffs filed a complaint and petition for class action certification on September 13,2002, and, following preliminary objections by defendants, plaintiffs filed an amended complaint onNovember 1,2002. Plaintiffs seek monetary damages as a result of defendants having allegedly assessed and collected unauthorized costs from plaintiffs after plaintiffs became delinquent in payment of their Local Earned Income Tax (EIT). Plaintiffs seek recompense for all damages incurred including attorneys’ fees, costs, and such other relief as the court deems appropriate. Plaintiffs further sue on behalf of all Pennsylvania residents who are similarly situated who have (1) paid EIT taxes to their municipality for one or more of the tax years 1995 through 2001; (2) did not pay the EIT on April 15 of the tax year that it was due; (3) were assessed a collection “cost” by defendants; and, (4) were not brought into litigation by Berkheimer for the collection of the EIT.

On November 19, 2002, defendants again filed preliminary objections which this court overruled by order dated January 28, 2003.

On February 20,2003, defendants filed an answer, new matter, and counterclaim to the amended complaint.

Plaintiffs filed a motion for summary judgment on September 1, 2004, along with an amended petition for class certification. On November 4, 2004, after motion by defendants, this court stayed plaintiffs’ motion for summary judgment.

On November 9,2004, this court heard arguments from the parties regarding class certification. The matter was taken under advisement, and is hereby decided in this opinion and order.

FACTS

The facts of this matter are not complex and are essentially not disputed. Plaintiffs, Robert W. and Kathleen M. Cheeseman, reside in Warrington Township, Pennsylvania, and as such are required by local ordinance to pay a Local Earned Income Tax in the amount of 1 percent of their net earned income. Defendant, H. A. Berkheimer Inc., is contracted by various municipalities and school districts across the Commonwealth to collect and administer the EIT. Defendant collects and administers various taxes for more than 1,100 municipalities and school districts in Pennsylvania. Defendants entered into an agreement to act as agent for Warrington Township for the purpose of collecting the EIT. (See contract, exhibit “B” to amended complaint.) Such arrangements are specifically provided for by 53 Pa.C.S. §6910(b), the Local Tax Enabling Act.

Plaintiffs filed a local tax return with defendants by April 15, 2000, for the tax year 1999, but failed to enclose payment. Subsequently, defendants mailed to plaintiffs a form entitled “Failure to File Local Earned Income Tax Return” that indicated that, in addition to the taxes, an amount of 4 percent of the outstanding taxes was due for “penalties and interest.” In addition to the 4 percent for penalties and interest, the form indicated an additional amount of $18 was due as “costs.”

Plaintiffs paid the costs of $18, and attempted to negotiate an installment payment plan to pay the taxes, interest and penalties. Subsequently, defendants mailed a notice entitled “Final Notice Before Wage Attachment” to plaintiffs. This notice assessed an additional “cost” of $39.

Defendants never initiated any further action to collect the delinquent taxes from plaintiff, nor did they file suit.

Plaintiffs aver that Berkheimer is not authorized by law to assess or collect the “costs” that were indicated on the form and the notice. They maintain that the LTEA only grants the authority for the municipality and/or its agent to collect taxes, interest and penalties.

DISCUSSION

As noted above, plaintiffs have alleged that the costs assessed and collected by defendants are not authorized by statute, and are therefore improper. Defendants deny this allegation, and counter by contending that plaintiffs’ proper and exclusive remedy lies in a “refund statute,” found at 72 P.S. §5566(b). Because this statute is an individual remedy, defendants further aver that a class or representative action cannot be waged.

The [class certification] hearing is confined to a consideration of the class action allegations and is not concerned with the merits of the controversy or with attacks on the other averments of the complaint. Pa.R.C.P. 1707, Explanatory comment — 1977.

Despite that guidance, in an apparent effort to prevent unnecessary expenditure of judicial resources on cases that had no chance of success, the Commonwealth Court, in Stranahan v. County of Mercer, 697 A.2d 1049 (Pa. Commw. 1997), held that “the underlying substantive cause of action must first be examined when considering whether there is authority to employ the procedural device of a class action certification hearing.” Stranahan v. County of Mercer, 691 A.2d 1049, 1051 (Pa. Commw. 1997) quoting Smolow v. Commonwealth, 131 Pa. Commw. 276, 570 A.2d 112 (1990).

Therefore, where an administrative remedy preempts litigation, class certification cannot lie. It is the responsibility of the trial court to determine whether such a bar to litigation exists in a given case.

To meet this burden laid on us by our Commonwealth Court, and to determine whether plaintiffs’ complaint surpasses this threshold of litigability, the court examined the interplay between the LTEA at 53 Pa.C.S. §6910(b) and the Refund Statute at 72 P.S. §5566(b). A discussion of that issue follows herein.

The relevant portion of the LTEA (Local Tax Enabling Act), 53 Pa.C.S. §6913VIII(a), reads as follows:

“(a) If for any reason the tax is not paid when due, interest at the rate of 6 percent per annum on the amount of said tax, and an additional penalty of one-half of 1 percent of the amount of the unpaid tax for each month or fraction thereof during which the tax remains unpaid shall be added and collected. Where suit is brought for the recovery of any such tax, the person liable therefore shall, in addition, be liable for the costs of collection and the interest and penalties herein imposed.” 53 Pa.C.S. §6913VIII(a). (emphasis added)

The LTEA unconditionally permits political subdivisions to collect tax, interest, and an additional penalty of 1/2 percent of the unpaid tax. However, a plain reading of the statute reveals that: The LTEA does not permit collection of any costs unless and until suit is brought for the recovery of any such tax.

Plaintiffs allege that Berkheimer routinely charges costs before any commencement of lawsuit.

Defendants do not address the propriety of their collecting costs. Rather, in opposing the class certification, defendants cite Smolow, supra, where the court held that a class action could not be utilized to obtain individual tax refunds where a statutory refund procedure was available to the individual taxpayer..Smolow, 131 Pa. Commw. 276, 570 A.2d 112.

A statutory mechanism to remedy overpayment or erroneous payment of taxes (the refund statute) is found at 72 Pa.C.S. §5566(a):

“Whenever any person . . . has paid or caused to be paid . . . into the treasury of any political subdivision, directly or indirectly, voluntarily or under protest, any taxes of any sort, license fees, penalties, fines or any other monies to which the political subdivision is not legally entitled; then, in such cases ... upon filing with them of a written and verified claim for the refund of the payment . .. [the political subdivision] are hereby directed to make ... refund of such taxes, license fees, penalties, fines or other moneys to which the political subdivision is not legally entitled.” 72 Pa.C.S. §5566(a)

Defendants contend that the phrase “any other moneys” in the subject statute includes the costs that are the subject of this lawsuit.

In their memoranda, defendants aver that they frequently refund the subject costs when a taxpayer complains. However, such an averment could be viewed as a tacit admission that Berkheimer knows that its assessment and collection of such costs is beyond its authorization.

To decide whether the refund statute applies, and hence whether it should preclude plaintiffs from bringing suit, the court reverts to a plain language analysis. The refund statute requires that, for the complaining taxpayer to accrue the right to request a refund, the money sought to be refunded must have been paid into “the treasury of the political subdivision” either “directly or indirectly.”

The operative question becomes whether the costs that Berkheimer collects are “paid,” “directly or indirectly,” “into the treasury,” of any “political subdivision.”

Berkheimer contracted for and is being paid a commission to collect the taxes, interest, and penalties for Warrington Township and other political subdivisions. In addition to the commissions, Berkheimer also assesses and collects the costs that are the subject of the instant lawsuit. These costs are being collected by and paid directly to Berkheimer. The money goes directly to Berkheimer and is not being passed on to the treasury a political subdivision. If such costs are not authorized by the LTEA, the political subdivision could not legally have contracted for Berkheimer to collect these costs.

Berkheimer argues that the costs it collects help keep down the collection costs incurred by the townships, and are therefore “indirectly” going to the treasury of the political subdivision. Such contention is inapposite. The commissions that the municipality contracted for with Berkheimer are incorporated into the amount of tax when the municipality figures the tax rate, and thereby do, indirectly, go into the treasury. However, the costs that comprise the subject of this lawsuit are assessed by Berkheimer and are kept by Berkheimer. They do not reduce the cost to the political subdivision, but merely increase Berkheimer’s profit.

Defendants cite a passel of cases for their contention that the refund statute is plaintiffs’ sole remedy, and that a class action certification is inappropriate. See Stranahan v. County of Mercer, 697 A.2d 1049 (Pa. Commw. 1997) (challenging the constitutionality of a tax); Smolow v. Commonwealth of Pennsylvania, 131 Pa. Commw. 276, 570 A.2d 112 (1990) (seeking refund of tax overpayment); Lilian v. Commonwealth, 467 Pa. 15, 354 A.2d 250 (1976) (seeking refund of a repealed tax); Zarwin v. Montgomery County, 842 A.2d 1018 (Pa. Commw. 2004) (seeking refund of tax on non-exempt stock); Israelit v. Montgomery County, 703 A.2d 722 (Pa. Commw. 1997) (challenging the constitutionality of a tax); and Aronson v. City of Pittsburgh, 98 Pa. Commw. 1, 510 A.2d 871 (1986) (challenging the constitutionality of the business privilege tax).

In each of the cases cited, the refund statute was deemed the exclusive remedy, and a class action was not permitted. However, each of these cases dealt with application for a refund of taxes, penalties and interest. None involved litigation challenging costs or application for refund of costs. Further, most of the cases involved erroneously paid taxes, or application for refunds of taxes that were not owed. Furthermore, all of the cases were brought against the municipality as defendant and not against a party such as Berkheimer that is merely contracted as an agent of the political subdivision to assess and collect taxes.

The refund statute provides no guidance as to what is meant by “directly or indirectly”; therefore it would be inaccurate to conclude that the costs that are the subject of the instant case go to the treasury indirectly. If it were adjudged that the statutory language was ambiguous, the trial court would be forced to look to legislative intent. It is unlikely that the legislature could have intended to sanction collection of costs that violate the LTEA. Each analysis considered by the court yielded the same result— that the refund statute is not intended to apply to plaintiffs’ case.

An obvious example of monies “indirectly” paid into the treasury would be where a taxpayer pays Berkheimer and Berkheimer forwards the moneys to the political subdivision. Only a tortured interpretation could result in finding that the subject costs indirectly find their way to municipal treasuries.

Consequently, in the instant case, we find that the costs assessed by Berkheimer are not being paid into the treasury, either directly or indirectly, and therefore conclude that the refund statute is unavailable to plaintiffs and other similarly situated taxpayers. Only if it was conclusively determined that the refund statute applies would the prospect of a class action lawsuit be proscribed.

Criteria for Class Action Certification

The prerequisites of a class action are set forth in Pennsylvania Rules of Civil Procedure 1702,1708, and 1709. Pa.R.C.P. 1702 provides that a class may be certified if the following requirements are satisfied:

“(1) the class is so numerous that joinder of all members is impracticable;
“(2) there are questions of law or fact common to the class;
“(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
“(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.”

In determining whether the above criteria have been satisfied, trial courts are vested with broad discretion. Baldassari v. Suburban Cable TV Company Inc., 808 A.2d 184 (Pa. Super. 2002), citing Weinberg v. Sun Co. Inc, 740 A.2d 1152,1162 (Pa. Super. 1999). Further, decisions in favor of maintaining a class action should be liberally made. D ’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 500 A.2d 1137 (1985); see also, Bell v. Beneficial Consumer Discount Co., 241 Pa. Super. 192, 360 A.2d 681 (1976) (class action rules enable assertion of claims that would otherwise not be litigated).

At a class certification hearing, the burden of proof lies with the movant, but, this being a preliminary hearing, it is not a heavy burden. Baldassari, 808 A.2d at 189; Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 451 A.2d 451 (1982). The movant need only present evidence sufficient to make out a prima facie case “from which the court can conclude that the five class certification requirements are met.” Id. It is clear in Pennsylvania that plaintiffs’ burden to establish the prerequisites for class certification is not a heavy one. Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 501 A.2d 635 (1985). It is the strong and oft-repeated policy of this Commonwealth that, in applying the rules for class certification, decisions should be made liberally and in favor of maintaining a class action. Baldassari, 808 A.2d at 189. As noted above, despite having broad discretion and liberal license, Rule 1707 does limit the court’s inquiries at the certification hearing:

“The hearing is confined to a consideration of the class action allegations and is not concerned with the merits of the controversy or with attacks on the other averments of the complaint. Its only purpose is to decide whether the action shall continue as a class action or as an action with individual parties only. In a sense, it is designed to decide who shall be the parties to the action and nothing more. Viewed in this manner, it is clear that the merits of the action and the right of the plaintiff to recover are to be excluded from consideration.” Pa.R.C.P. 1707, Explanatory note (emphasis added); see Cavanaugh v. Allegheny Ludlum Steel Corp., 364 Pa. Super. 437, 528 A.2d 236 (1987) (holding that the trial court improperly examined the merits of the litigation itself instead of focusing on the factors relevant to class certification, and vacated the order denying class certification). In light of the foregoing, we will examine the enumerated factors for class certification.

1. Numerosity

Plaintiffs purport to represent a class of Pennsylvania taxpayers who were assessed and paid costs fines imposed by Berkheimer for delinquent taxes prior to the commencement of litigation to collect the delinquent taxes in the Commonwealth of Pennsylvania for the tax years 1995 through 2001. To be eligible for certification, plaintiffs must demonstrate that the class is “so numerous that joinder of all members is impracticable.” Pa.R.C.P. 1702(1). A class is sufficiently numerous when the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain on the energies and resources of the litigants should such potential plaintiffs sue individually. Temple University of the Commonwealth System of Higher Education v. Pennsylvania Department of Public Welfare, 30 Pa. Commw. 595, 603, 374 A.2d 991, 996 (1977) (held 123 members sufficient); ABC Sewer Clean ing Co. v. Bell of Pa., 293 Pa. Super. 219, 438 A.2d 616 (1981) (held 250 members sufficient); Ablin Inc. v. Bell Telephone Company of Pennsylvania, 291 Pa. Super. 40, 435 A.2d 208 (1981) (held 204 plaintiffs sufficiently numerous). Plaintiffs are not required to plead or prove the actual number of class members, so long as they are able to “define the class with some precision” and provide “sufficient indicia [to the court] that more members exist than it would be practicable to join.” Janicik, 305 Pa. Super, at 132, 451 A.2d at 456.

Defendants concede that plaintiffs have met the numerosity requirement. Moreover, the record reveals that Berkheimer represents over 1,000 municipalities and school districts with hundreds or thousands of taxpayers in each. The number of taxpayers who were assessed and paid the “improper costs” is obviously very large. Therefore, this court is satisfied that plaintiffs have established a proposed class with a “magnitude sufficiently numerous that joinder of all its members would be impracticable.” Baldassari, 808 A.2d at 190.

2. Commonality

For class certification, plaintiffs must establish that their claims present “questions of law or fact common to the class.” Pa.R.C.P. 1702(2). “The common question of fact means precisely that the facts must be substantially the same so that proof as to one claimant would be proof as to all.” Allegheny County Housing Authority v. Berry, 338 Pa. Super. 338, 342, 487 A.2d 995, 997 (1985); Cook v. Highland Water and Sewer Authority, 108 Pa. Commw. 222, 231-32, 530 A.2d 499, 504 (1987). While the existence of individual questions essential to a class member’s recovery is not necessarily fatal to the class, there must be a predominance of common issues shared by all class members which can be justly resolved in a single proceeding. Janicik, 305 Pa. Super, at 133, 451 A.2d at 457.

Berkheimer collects a number of different costs, and they are assessed at a number of different stages in the process of attempting to get a delinquent taxpayer to ante up the taxes, penalties, and interest that are owed.

Defendants argue that plaintiffs cannot meet the commonality requirement for class certification because different proof would be required for each putative class member as to exactly which category of cost and amount of cost each was assessed. Also, defendants aver that the claims are not common because the different categories of costs are assessed at different times during the pendency of the collection process. The court sees this as a distinction without a difference. Either the costs are authorized or they are not, and either the putative class members paid an improper cost or they did not.

The common question, in its simplest form, is whether the costs are improper.

“Common questions will generally exist if the class members’ legal grievances arise out of the ‘same practice or course of conduct’ on the part of the class opponent.” Janicik, 305 Pa. Super, at 133, 451 A.2d at 457. “[Cjlass actions may be maintained even when the claims of members of the class are based on different contracts” so long as “the relevant contractual provisions raise common questions of law and fact and do not differ materially.” Id. If later refinement of the issues reveals that seemingly similar categories of costs merit differing interpretations, the court may create appropriate subclasses. Pa.R.C.P. 1710(c)(2). Plaintiffs and all putative class members’ “legal grievances” arise out of defendants’ “common practice” of assessing and collecting costs that plaintiffs allege are not authorized by the LTEA, and are thereby contrary to law.

Defendants urge this court to examine each of the different categories and types of costs that they impose. To do this, this court would have to further delve into the merits of the underlying action, an activity that is clearly not this court’s function at this stage of the litigation. Baldassari, supra.

The common issue affecting all class members in the instant matter is straightforward. Plaintiffs intend to show that defendants are not authorized to assess and collect costs. The primary question of fact that must be determined is whether plaintiffs and all putative class members were improperly charged.

The ultimate legal question to be determined as a matter of law is whether the statute authorizes defendants, as agents for the political subdivisions, to collect the costs, as is their practice. This legal issue can be answered on a class-wide basis without having to question each individual class member. Under these circumstances, we are satisfied that plaintiffs have met their burden of proving that there are questions of law and fact common to the class.

3. Typicality

For class certification, plaintiffs must establish that their claims are typical of the claims of the proposed class. Pa.R.C.P. 1702(3). This factor requires that the “class representative’s overall position on the common issues is sufficiently aligned with that of the absent class members to ensure that his pursuit of his own interests will advance those of the proposed class members.” Baldassari, 808 A.2d at 193; Janicik, 305 Pa. Super, at 134, 451 A.2d at 457. Defendants argue that plaintiffs cannot establish the typicality element of class certification because plaintiffs were only assessed costs at one stage of the tax collection process. Again, the court views this as a distinction without a difference.

We are satisfied that plaintiffs have established commonality for the reasons stated above. Furthermore, plaintiffs’ claims are typical of the proposed class because their claims focus on the common allegation that defendants charged taxpayers costs that they were not authorized to collect. Any factual differences between plaintiffs’ claims and the claims of the class arise from that singular course of conduct, and all claims are based upon those same legal theories, Baldassari, 808 A.2d at 193. It is well established that questions as to the amount of individual damages will not preclude a class action. Baldassari, 808 A.2d at 194. Individual damage determinations can be made at a separate phase of the trial but, as discussed earlier, the central factual and legal issues are capable of class-wide resolution. Therefore, plaintiffs have satisfied the typicality requirement.

4. Plaintiffs Will Fairly and Adequately Assert and Protect the Interests of the Class

Pa.R.C.P. 1702(4) requires the representative plaintiffs to fairly and adequately assert and protect the interests of the class. To make this determination, the court must consider: (1) whether the attorney for the representative party will adequately protect the class interests; (2) whether the representative parties have a conflict of interest in maintaining the action; (3) whether the representative parties “have or can acquire” adequate financial resources; and (4) “other matters.” Pa.R.C.P. 1709.

“ ‘A litigant must be a member of the class which he or she seeks to represent at the time the class is certified by the . . . court’ in order to ensure due process to the absent class members and to satisfy requirements of standing.” Janicik, 305 Pa. Super, at 135, 451 A.2d at 458. Plaintiffs were assessed costs by Berkheimer in two separate instances, and paid those costs, all the while maintaining that they were improper. Plaintiffs are thus clearly a member of the class they seek to represent. Plaintiffs are thus potentially adequate class representatives pursuant to Pa.R.C.P. 1702(4).

(a) Attorneys for plaintiffs will adequately protect the class’ interests

“Generally, ‘ [u]ntil the contraiy is demonstrated, courts will assume that members of the bar are skilled in their profession.’ ” Janicik, 305 Pa. Super, at 136,451 A.2dat 458. Courts may also infer the attorney’s adequacy from the pleadings, briefs, and other material presented to the court, or may determine these warrant further inquiry. Id. Counsel’s adequacy has not been disputed. After hearing and examination of plaintiffs’ pleadings and memoranda, this court finds that counsel is competent and skilled to represent plaintiffs in the instant action. Accordingly, plaintiffs’ counsel should be considered adequate to protect the absent class members’ interests. Id. Pa.R.C.P. 1709(1).

(b) Plaintiffs have no conflict of interest in maintaining the action

Because of the difficulty of proving otherwise, “courts have generally presumed that no conflict of interest exists unless otherwise demonstrated, and have relied upon the adversary system and the court’s supervisory powers to expose and mitigate any conflict.” Id. at 136-37, 451 A.2d at 458.

Defendants allege that a significant conflict of interests exists arising from the fact that the bringing of the class action suit will spawn counterclaims against the putative class members for the unpaid taxes. Yet, defendants are in control of any such counterclaims, and have the right to pursue them at this time, in the absence of this class action litigation. Nevertheless, defendants maintain that the class action representation would present an inherent impermissible conflict of interest because of the potential for counterclaims. This issue is neither compelling for defendant nor fatal to plaintiff.

Both defendants and plaintiffs cite federal cases as authority for their relative positions on this issue.

Defendants rely on George v. Beneficial Finance, 81 F.R.D. 4 (M.D. Tex. 1977) for the proposition that class litigation would be inappropriate because of an inescapable conflict of interest that is engendered by the prospect of counterclaims against class members. In George, as in the instant case, the counterclaims could exceed in amount the possible recovery by class members if the class litigation is successful.

Reliance on the holding of George is inapposite. It is true in the instant case that the counterclaims would set off the awards, but that would not affect the defendants’ liability for charging improper costs. Conversely, if the class action was successful, the class representatives who now legitimately owe taxes, interest and penalties, would no longer be responsible for the costs that were adjudged to be improper. See Taylor v. Halstead, 2000 U.S. Dist. Lexis 384 (N.D. Ill., Jan. 13, 2000) (Counterclaim would reduce damage awards but not affect a finding of liability against defendant). The result of the class litigation would be that the taxpayers would owe less.

It offends common sense to disallow class certification merely because of speculative conflicts regarding possible counterclaims. Such threats should not hinder class certification. Hammid v. Unifund, 2001 U.S. Dist Lexis 20012 (N.D. Ill., Dec. 3, 2001).

Although it is correct that Berkheimer could lodge counterclaims against each and every delinquent taxpayer, that is so in any event whether or not class litigation is waged. It seems that the defendants are threatening to bring counterclaims as retribution. If the threat of counterclaims is real, why have they not brought suit already to collect the delinquent taxes?

Pennsylvania law does not provide for compulsory counterclaims. Where compulsory counterclaims are the law, defendants are forced to bring a counterclaim, if one is possible, or else they lose the right to ever bring such a claim. If that were the case here, initiation of the class litigation would force Berkheimer to countersue every class member. In that event, the class litigation would be ill-advised because it would force lawsuits on every class member.

In the absence of a statutory requirement for compulsory countersuits, any purported conflict of interest arising from the threat of counterclaims by Berkheimer could be solved by informing putative class members of the potential for counterclaims and presenting them with the opportunity to opt out of the class. (See e.g., Channell v. Citicorp, 89 F.3d 379 (9th Cir. 1996).)

Nothing in the record suggests any fatal conflict of interest in plaintiffs maintaining this action. Pa.R.C.P. 1709(2).

(c) Plaintiffs have or can acquire adequate financial resources

“[T]o assure that the interests of the class will not be harmed,” the court must consider whether the representative parties “have or can acquire adequate financial resources” to prepare the litigation and carry it to completion. Pa.R.C.P. 1709(3); Explanatory note to Pa. R.C.P. 1709.
“The dangers of the potential conflict of interest arising from counsel’s financing a class suit, however, must be viewed realistically in light of the circumstances and the procedural safeguards inherent in class suits.” Janicik, 305 Pa. Super, at 138, 451 A.2d at 459. “Overly strict financing requirements would limit the class action to wealthy litigants, contrary to its purposes.” Id. A lack of funding by plaintiffs, without more, is not sufficient to warrant denial of class certification. Id. Plaintiffs’ counsel stated to the court that it is in a position to advance the costs of litigation and is prepared to do so. There is no evidence that counsel does not have the ability to advance such costs.

5. A Fair and Efficient Method of Adjudicating Plaintiffs’ Claims

Finally, in order for plaintiffs to proceed with adjudication of this case as a class action, plaintiffs must establish that it is both fair and efficient to do so. The factors to be evaluated are set forth in Pa.R.C.P. 1708 as follows:

“In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth [below]
“(a) Where monetary recovery alone is sought, the court shall consider
“(1) whether common questions of law or fact predominate over any question affecting only individual members;
“(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
“(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
“(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
“(ii) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of other members not parties to the adjudications, or substantially impair or impede their ability to protect their interests;
“(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
“(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
“(6) whether, in view of the complexities of the issues or the expenses of litigation, the separate claims of individual class members are insufficient in amount to support separate actions;
“(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.” Pa.R.C.P. 1708.

This court believes that common issues relating to whether defendants’ assessment of costs is unauthorized by law predominate over the individual issues of exactly how and for how much money individual class members were improperly charged. As discussed earlier, we reject defendants’ contention that reasonableness must be determined through individual questioning. We recognize that individual issues could remain if it is ultimately decided that some of the costs charged by defendants are proper. However, questions as to the amount of individual damages will not preclude a class action. Baldassari, 808 A.2d at 194.

With respect to manageability, the claims of the proposed class would be manageable because members of the class can be identified through defendants’ computerized records. Additionally, courts will “rely on the ingenuity and aid of counsel and upon [this court’s] plenary authority to control the action to solve whatever management problems the litigation may bring.” Janicik, 305 Pa. Super, at 142, 451 A.2d at 462.

Regarding the risk of inconsistent verdicts, the record does not indicate that other litigation has been commenced against defendants involving the same issues raised by plaintiffs in this action. However, the Superior Court has previously stated that “the risk of inconsistent verdicts is not essential to certifying the class but, ‘if they exist, they will be forceful arguments in support of approval of the class action.’ ” Baldassari, 808 A.2d at 195; Janicik, 305 Pa. Super, at 143,451 A.2d at 462-63.

Regarding the appropriate forum, it must be determined whether there is “no one common pleas court which would be better to hear the action.” Baldassari, 808 A.2d at 195. As a result, we find that the Court of Common Pleas of Bucks County is an appropriate forum for adjudication of plaintiffs’ underlying claims. Our finding is based upon defendants’ business activities in many municipalities and school districts in Bucks County, undisputed in the record, and the fact that all of the proposed class members reside in Pennsylvania. Furthermore, concentrating the action in this one forum promotes judicial economy. Id.

Due to the issues of this case and expected expenses, it is unlikely that individual class members could support separate actions. The claims of individual class members are not sufficiently large enough to warrant individual actions. Plaintiffs’ claims range from approximately 18 to 39 dollars. To prevail on individual claims, class members would be forced to retain separate counsel and pay court costs, thus duplicating expenses. Janicik, 305 Pa. Super, at 144, 451 A.2d at 463. Moreover, small, but meritorious, claims may go unlitigated. Id. Further, there is a possibility that defendants would simply settle plaintiffs’ individual claims, preventing an adverse decision on the merits, and thereby precluding effective relief to many. Id. “Forcing multiple individual claims might not only be potentially unfair, but it could prove inefficient, for if the numerous proposed class members did bring individual suits, it could unnecessarily clog court dockets with repetitive litigation.” Id. Accordingly, a review of all the circumstances under this criterion indicates that a class action is a fair and efficient method of adjudicating this controversy.

Finally, defendants argue that the amount that may be recovered by individual class members will be so small as not to justify a class action. We disagree. “Although the amounts of individual claims may be small in and of themselves, the aggregate amount of claims and potential individual recovery for class members is sufficient in amount to justify discovery expenses and requisite notice.” Baldassari, 808 A.2d at 195. The Superior Court has previously noted “in determining whether the requirement of Rule 1708(a)(7) is satisfied, one does not view the potential recoveiy by itself. Rather, the rule requires a consideration of whether the potential expenses and efforts of administering the action would render the amount of recovery so small that a class action would not be justified.” Id. “In many consumer class actions the individual amounts may be very small, but the aggregate may be large, and maintenance of the class action might have a deterrent effect on future violations by the defendant.” Pa.R.C.P. 1708, Explanatory note. Assuming that class membership could reach 70,000 taxpayers in this case, and recovery by individual class members could be as low as $ 18, the aggregate potential claim could be well over $2 million. Thus, class certification is the only efficient method of resolution under the instant facts.

It would be unconscionable to permit Berkheimer to continue to collect costs to which it was not entitled from thousands of taxpayers. The proposed class action will resolve the issue and, if the costs are determined to be improper, will save countless delinquent taxpayers from paying costs to which Berkheimer is not entitled.

Therefore, this court finds that allowing this case to proceed as a class action provides a fair and efficient method of adjudication of the controversy under the criteria set forth in Pa.R.C.P. 1708.

CONCLUSION

For the foregoing reasons stated herein, this court hereby grants plaintiffs’ motion for class certification.

ORDER

And now, June 9,2005, in accordance with the above opinion, after consideration of the parties’ pleadings, memoranda, and after hearing, it is hereby ordered that plaintiffs’ motion for class certification is granted.

The court hereby certifies the following class:

(1) Any and all Pennsylvania taxpayers who were assessed and paid costs and/or fines imposed by Berkheimer for delinquent taxes prior to the commencement of litigation to collect the delinquent taxes in the Commonwealth of Pennsylvania for the tax years 1995 through 2001.
(2) The court hereby appoints Robert W. Cheeseman and Kathleen M. Cheeseman as representatives;
(3) Bernard Gross, Esquire is hereby designated as class counsel;
(4) Class counsel shall submit to the court a plan and description of notice of pendency of this class action within 30 days from the date of this order.

      . Discussion of the propriety of the collection of costs would go to the merits of the case, and is not appropriate at the class certification juncture.

      . The individual costs charged by Berkheimer range from $18 to $39. Multiple imposition of the costs may make the individual claims larger.

      . In effect, this is Berkheimer’s admitted practice: it often refunds the costs voluntarily.

      . In their answer to plaintiffs’ third set of interrogatories, Berkheimer indicated that as many as 70,000 taxpayers have been assessed such costs. The costs run from $18 through $39 in discrete steps. If one selects $30 as a rough average, the total of all claims could amount to $2.1 million dollars.


author: VALASEK, J,

text:
    Fowler v. Fowler

      C.P. of Armstrong County,
    no. 2002-0905-CIVIL.

      Alberta Beardsley, for plaintiff.

      Cynthia Calorie, for defendant.
    May 16, 2005
   VALASEK, J,

Presently before the court is plaintiff’s petition to modify custody.

HISTORY

Plaintiff and defendant married on October 22, 1997, and were divorced on August 7, 2001. The parties are the natural parents of son, Gage Fowler. Plaintiff, Ryan Fowler, initially sought custody of Gage, then four years old, in August 2002. A temporary order was entered on May 15, 2003, awarding defendant, Stephanie Fowler, primary physical custody of Gage. An order dated June 4, 2003, awarded plaintiff partial physical custody during Gage’s summer vacation and rotating holiday breaks. In its statement of reasons, the court concluded that it was in Gage’s best interests to remain with his mother because he was “simply doing too well to cause a change in primary custody.” (Statement of reasons and order p. 2.) The court cautioned defendant in her use of vulgar language in Gage’s presence, and further noted that any failure on Gage’s part to continue to thrive could result in a change of custody.

On July 23,2004, plaintiff filed this petition to modify custody requesting that the court grant him primary physical custody of Gage. Plaintiff claims that he is better able to provide for Gage’s physical and emotional needs, as well as provide a more stable, healthy and proper environment.

A hearing on the petition was held on February 11, 2005. The court has resolved any disputed issue of fact based on the court’s observation of the witnesses, their demeanor, their manner of testifying, the consistencies or inconsistencies in their testimony and the extent to which their testimony was corroborated or contradicted by other testimony.

FINDINGS OF FACT

(1) Plaintiff is Ryan A. Fowler (Father).
(2) Father resides at 20 Vesper Lane, Unit E-l, Nantucket, MA 02554 with his current wife, Ryan M. Fowler (Wife) and their infant daughter, Sadie. They live in government-leased housing on a dead-end street. The house has three bedrooms, one-and-a-half bathrooms and a fenced yard. There is ample room and it is suitable for Father, his wife and two children.
(3) Father is a member of the United States Coast Guard. In or around June 2005, Father’s work schedule will change to Monday through Friday from 7:45 a.m. to 3:45 p.m. He earns an average annual salary of $35,000.
(4) Wife is primarily a stay-at-home mom but gives paid horseback riding lessons during the summer.
(5) During Father’s periods of physical custody, Wife watches Gage while Father is at work.
(6) Defendant is Stephanie D. Fowler (Mother).
(7) Mother resides with Gage at 280 S. McKean Way, no. 4, Kittanning, Pennsylvania. Gage has lived here with Mother for the past four years. The home has two bedrooms, one bathroom, a living room, dining room, kitchen and patio. It is suitable and adequate for Mother and Gage.
(8) Mother is employed as a cashier at Co-Go’s. She works 20-25 hours per week on various shifts earning $5.65/hr. Mother is also a student at Butler Community College pursuing a certificate in medical coding. She graduates in May 2005.
(9) Mother’s family has been active in Gage’s life and can help as sitters if necessary.
(10) Mother has adequate arrangements for childcare while she is at work or school. Her mother, Kathleen McMillen (Grandmother) watches Gage at Mother’s home and gets Gage on and off the school bus as needed.
(11) Gage has a loving relationship with Grandmother and other family members on Mother’s side.
(12) Mother’s parenting approach is stoic. She demands respect and is impatient with Gage. She is quick to anger, which leads to yelling, cursing and inappropriate corporal punishment on occasion.
(13) Mother’s boyfriend smokes in her apartment when he visits.
(14) Gage suffers from frequent ear infections and possible allergies.
(15) Gage has called Father after 11 p.m. on occasions.
(16) At times, Gage awakens in the morning and has to wait for Mother to wake up to make his breakfast.
(17) Gage spends many hours inside Mother’s home watching television.
(18) Mother’s interactions with Gage are limited due to Mother’s hectic schedule, and although Mother’s schedule may change following receipt of her education certificate, Mother’s spare time is usually spent on personal matters not involving Gage.
(19) Gage perceives his mother as angry and mean.
(20) In the fall of 2003, Gage received several deficiency notices from school.
(21) Gage spent Christmas break in 2003 at Father’s house. During this time, Father tutored Gage and teachers noted a marked improvement.
(22) Gage’s academic progress for the 2004-2005 school year was satisfactory.
(23) From November 22, 2004 through February 16, 2005, Gage has been reprimanded three times for use of foul language, including the words “fuck” and “asshole” on the school bus, as well as for other loud and disruptive behavior.
(24) Gage has spent the past two summers in Nantucket, MA, with Father and Wife.
(25) Gage has a loving relationship with Wife and half-sister Sadie.
(26) Gage arrived at Father’s house with behavior problems in the form of temper tantrums, anger and frustration, and noted difficulty sharing, as well as decreased physical stamina and an unhealthy appetite for junk food.
(27) Father and Wife maintain a routine with Gage including consistent meal times and bed times.
(28) Father and Wife are consistent with household rules and nutrition.
(29) Wife is awake in the mornings during Gage’s visits and prepares him breakfast when he wakes up.
(30) Father spends one-on-one time with Gage and promotes outdoor activities and use of the imagination.
(31) Father and Wife limit Gage’s television time.
(32) Father discovered Gage’s speech impediment and placed him in speech therapy during the summer.
(33) Father placed Gage in counseling over the summer.
(34) During the time spent with Father, Gage’s physical endurance increased and his social skills with other children improved. At the end of the summers spent with father, Gage is able to ride his bicycle longer and he is able to communicate his displeasure with his words instead of tantrums.
(35) Gage perceives Father’s house as more positive and happy.
(36) Father and Wife do not disparage Mother to Gage.
(37) Gage adjusts well to life at Father’s house.

DISCUSSION

With any child custody case, including petitions for modification, the paramount concern is the best interests of the child. Johns v. Cioci, 865 A.2d 931, 936 (Pa. Super. 2004). The child’s best interests are “based on a consideration of all factors that legitimately affect the child’s physical, intellectual, moral and spiritual well-being.” Swope v. Swope, 455 Pa. Super. 587, 591, 689 A.2d 264, 265 (1997). This determination is to be made on a case-by-case basis. Myers v. DiDomenico, 441 Pa. Super. 341, 345, 657 A.2d 956, 957 (1995).

It is clear that both parents are fit parents. Both love Gage and have a strong support network surrounding them. Additionally, Mother should be commended on her efforts to better herself with an education while raising a child.

In a case such as this, where both parents are fit to raise the child, the best interest test is first weighed “as to each parent and a parent will prevail when the weight of evidence shifts even slightly in his/her favor.” Wiseman v. Wall, 718 A.2d 844, 850 (Pa. Super. 1998).

In its statement of reasons and order which awarded custody of Gage to Mother, the court found that Gage was doing well in her care. However, it was further stated that any failure to continue to thrive might alter the court’s decision.

Based upon the court’s findings, Gage is not continuing to thrive in his present situation. Certain distinct behavior problems, such as acting out on the school bus and his use of profane language, as well as Gage’s lack of physical and mental stimulation at Mother’s home, frequent ear infections and speech impediment concern the court. These issues seem to be left alone while Gage is in the custody of Mother. It is only when Father is in custody of Gage that these problems are addressed.

Father encourages physical exercise, proper nutrition and use of Gage’s imagination. His home is anon-smoking environment which is beneficial to Gage’s inner ear problems and potential allergies. Father has also tutored Gage and sought the help of counselors and speech therapists.

Father’s use of discipline also differs from Mother’s. Whereas Mother will yell, push and hit, Father uses a one-on-one intervention. Mother’s tendencies toward use of corporal punishment are of additional concern to the court because her actions seem to stem from her own impatience and anger rather than from the actions of Gage.

Additionally, as the court has previously noted in its statement of reasons, there exist an array of opportunities and experiences in Father’s household that simply do not exist under Mother’s care.

Upon consideration of all relevant factors, the court finds that when Gage is in the custody of Father, his physical and emotional health, speech, social disposition, manners and overall well-being improve. He develops additional tolerance and life skills in the presence of Father and Wife. Gage adjusts well to life at his Father’s house.

Additionally, the court finds that Father is more likely to foster Gage’s relationship with Mother than Mother does with Father, and that Father and Wife do not make disparaging comments about Mother in Gage’s presence.

Therefore, the court finds that a modification of the present custodial arrangement will be in Gage’s best interests.

TEMPORARY ORDER

And now, May 16, 2005, for the reasons stated in the foregoing opinion, it is hereby ordered as follows:

(1) Plaintiff, Ryan A. Fowler (Father), and defendant, Stephanie D. Fowler (Mother), shall share legal custody of Gage Anthony Fowler (child), born June 19, 1998.
(2) Father shall have primary physical custody of the child commencing upon entry of the final order.
(3) Father and Mother shall each submit a proposed partial physical custody plan for Mother within 20 days of the date hereof. A final order will be entered by the court after receipt and consideration of the same.

      . This decision was based largely on Headstart teacher Cherrie Lynn Harper who described Gage as friendly, sociable, enthusiastic about learning, well-dressed, happy and developing appropriately.