author: LEVIN, J.,

text:
    Foodarama Supermarkets Inc. v. American Insurance Company

      C.P. of Philadelphia County,
    no. 9802-1138.

      Melvyn I. Weiss and James J. Binns, for plaintiffs.

      Mark A. Aronchick, for defendant.

      January 10, 2000
   LEVIN, J.,

Before this court are plaintiffs’ motion for class certification, defendants’ memorandum of law in opposition to plaintiffs’ motion for class certification and all responses thereto. For the reasons stated below we deny plaintiffs’ motion.

INTRODUCTION

This class action litigation pits workers’ compensation insurance purchasers against workers’ compensation insurers. Plaintiffs define their class as “all employers in the Commonwealth of Pennsylvania that have purchased or renewed retrospectively-rated or adjusted policies or other similarly loss-sensitive policies in the voluntary market since 1985.” Defendants are all workers’ compensation insurers who not only sold policies to the 11 named plaintiffs but also who are alleged to have written or sold workers’ compensation insurance to employers doing business in the Commonwealth. Plaintiffs allege that the defendant insurers engaged in a “fraudulent scheme and conspiracy ... to bolster their profits in the face of substantial losses they began incurring in the mid-1980s in connection with the residual market for workers’ compensation insurance in Pennsylvania and many other states.” (Pis.’ second am. compl. ¶2.)

To understand plaintiffs’ complaint, a brief explanation about loss-sensitive policies and the residual market is required. Under loss-sensitive policies an employer’s premium depends upon the amount of actual losses the employer incurs. The premiums and charges are adjusted annually to reflect the employer’s losses. Plaintiffs contend that the yearly adjustment “afford the defendant carriers the opportunity to layer illegal charge upon illegal charge.” (Pis.’ second am. compl. at^28.) A retrospectively-rated policy is a type of loss-sensitive policy that uses four elements to calculate the premium. Plaintiffs assert that these elements along with rates, fees, factors, charges, loads and assessments are filed with the Commonwealth’s Insurance Commissioner and cannot be changed unless approved by the commissioner.

Broadly speaking, plaintiffs’ claim asserts that defendants charged more in premiums than the law or their insurance contracts allowed in order to recoup losses the insurers were sustaining in the residual market. The residual market comprises employers who do not choose their insurer but are assigned to certain insurers. Thus, residual market employers obtain their insurance involuntarily because their insurers are assigned and not chosen. The plaintiffs are voluntary market participants and the defendants sell on both the voluntary and involuntary market. Plaintiffs contend that it is unlawful for insurance companies to overcharge voluntary market policyholders to recoup losses incurred by the insurers in the residual market.

Plaintiffs allege that “defendants, individually and acting in concert, schemed to bilk the named plaintiffs and other insureds in the voluntary market in Pennsylvania and other states out of more than $1 billion.” (Second am. compl. ¶4.) Defendants allegedly carried out their scheme in five ways: (1) misrepresenting and inflating the applicable tax multiplier used in calculating the final premium; (2) imposing illegal and unauthorized residual market assessments against voluntary market carriers; (3) using an illegally inflated loss conversion factor; (4) misrepresenting and illegally inflating the basic premium amounts; and (5) requiring insurers to purchase coverage that was unrequested and unnecessary. (Pis.’ second am. compl. at^38(a)-(e).)

Based in part on these allegations, plaintiffs assert five causes of action against defendants and also allege that defendants fraudulently concealed their allegedly unlawful actions.

FINDINGS OF FACT

(1) Plaintiffs seek certification of a class consisting of:

“All employers in the Commonwealth of Pennsylvania that purchased or renewed multi-state policies issued by the insurer defendants covering risks within the Commonwealth of Pennsylvania during the period from January 1,1985 to the present (the “class period”). Excluded from the class are defendants and members of the NCCI; each of their parents, subsidiaries, and affiliates; any person controlled by any excluded person; and the legal representatives, heirs, successors, and assigns of any excluded person.” Pis.’ motion at 1.

(2) Policies are defined in the complaint to include retrospectively-rated, retrospectively-adjusted, or other loss-sensitive workers’ compensation insurance policies purchased in the voluntary market. Compl. ¶55.

(3) Plaintiff Foodarama Supermarkets Inc. is a New Jersey corporation that purchased a policy issued by defendant Insurance Company of North America, a member of the CIGNA Group, covering Foodarama’s Pennsylvania employees for the policy year ending June 1, 1992. Compl. ¶12; INA’s answer ¶12.

(4) Plaintiff Andrew Corporation is a Delaware corporation that purchased a policy issued by defendant INA, among other things,.covering Andrew’s Pennsylvania employees for the policy year ending December 1,1992. Andrew also purchased a policy issued by defendant Liberty Mutual Fire Insurance Company, a member of the Liberty Group, covering Andrew’s Pennsylvania employees for the policy year ending December 1,1991. Compl. ¶13; Liberty Mutual’s answer ¶13.

(5) Plainntiff The ERM Group Inc. is a Pennsylvania corporation that purchased policies issued by defendant Old Republic Insurance Company, a member of the Old Republic Group, covering ERM’s Pennsylvania employees for the policy years ending October 15,1990 through October 15, 1994. Compl. ¶15; Old Republic’s answer ¶15.

(6) Plaintiff Matria Healthcare Inc., the successor in interest to Healthdyne Inc., is a Delaware corporation that purchased policies issued by defendant Sentry Insurance, a Mutual company, a member of the Sentry Group, covering Matria’s Pennsylvania employees for the policy periods ending June 1,1991 through March 8, 1996. Matria also purchased a policy issued by defendant Commerce and Industry Company, a member of the AIG Group, covering Matria’s Pennsylvania employees for the policy year ending June 1, 1990. Compl. ¶16; Commerce and Industry’s answer ¶16.

(7) Plaintiff Melvin Simon & Associates Inc. is an Indiana corporation that purchased policies issued by defendant Standard Fire Insurance Company, a member of the Travelers Group, covering Melvin Simon’s Pennsylvania employees for the policy years ending July 1, 1990 and July 1, 1991. Compl. ¶17; Standard Fire’s answer ¶17.

(8) Plaintiff Specialty Restaurants Corporation d/b/a Baby Doe’s is a California corporation that purchased policies issued by defendants United Pacific Insurance Company, a member of the Reliance Group, covering Specialty Restaurants’ Pennsylvania employees for the policy years ending December 1,1990 and December 1, 1991. Compl. ¶18; United Pacific’s answer ¶18.

(9) Plaintiff Alumax Inc. is a Delaware corporation that purchased policies issued by defendant Pacific Employers Insurance Company, a member of the CIGNA Group, covering Alumax’s Pennsylvania employees for the policy years ending January 1,1986 through April 1, 1990. Compl. ¶19; Pacific Employers’ answer ¶19.

(10) Plaintiff Strick Corporation d/b/a Distribution International Inc. is a Delaware corporation that purchased policies issued by defendant Zurich Insurance Company, a member of the Zurich-American Group, covering Strick’s Pennsylvania employees for the policy years ending January 1,1992, January 1,1993 and January 1, 1996. Compl., ¶20; Zurich’s answer ¶20.

(11) Plaintiff Charter Medical Executive Corporation is a Georgia corporation that purchased policies issued by defendant National Union Fire Insurance Company of Pittsburgh, a member of the AIG Group, covering Charter Medical’s Pennsylvania employees for the policy years ending April 1, 1992 and April 1, 1993. Charter Medical also purchased a policy issued by defendant Reliance National Indemnity Company (f/k/a Planet Insurance Company), a member of the Reliance Group, covering Charter Medical’s Pennsylvania employees for the policy year ending October 1, 1994. Compl. ¶21; National Union’s answer ¶21.

(12) Plaintiff U.S. Natural Resources Inc. is a Delaware corporation that purchased a policy issued by defendant American Manufacturers Mutual Insurance Company, a member of the Lumbermens Group, covering USNR’s Pennsylvania employees for the policy year ending August 1, 1990. Compl. ¶22; American Manufacturers’ answer ¶22.

(13) Each insurer defendant does business in Pennsylvania by soliciting, making, and delivering workers’compensation insurance contracts within the Commonwealth of Pennsylvania. Defendants’ answers ¶9.

(14) The National Council on Compensation Insurance Inc., a Florida not-for-profit corporation, is an industry service organization, which plaintiffs allege is managed, controlled, and funded by the insurer defendants. Defendant NCCI maintains an office in Wayne, Pennsylvania. Compl. ¶51; NCCI’s answer ¶51.

(15) The complaint asserts the following claims: breach of contract, fraud, civil conspiracy, and unjust enrichment.

(16) There are several types of workers’ compensation insurance programs, including, but not limited to, loss-sensitive insurance, retrospectively-rated insurance, guaranteed cost insurance, high deductible programs and self insurance.

(17) Unlike guaranteed cost insurance, for which the employer pays a single fixed premium, a retrospectively-rated workers’ compensation insurance program combines expense factors and loss experience together in varied ways, depending on the program, such that the amount of the premium at the end of the policy period is affected by the amount of the insured’s covered losses. When the loss experience is less than anticipated, refunds or credits are issued; where the actual loss experience is greater than anticipated, additional premiums are required.

(18) High deductible policies are workers’ compensation policies where the employer agrees to reimburse the insurer for losses and certain associated expenses, up to an agreed amount per accident. In return, the premium for the policy is reduced through credits to reflect the employer’s responsibility to reimburse the insurer up to the amount of the deductible. The exact losses and associated expenses reimbursed, as well as the terms of payment, will vary from company to company and from employer to employer. In contrast to the reimbursement payments, which are not premium, the amount of the premium for a high deductible policy is generally fixed and thus is not loss-sensitive. The high deductible premium generally will not vary based upon the actual losses incurred for injuries occurring during the policy period.

(19) Dividend plans are plans that are often used in conjunction with guaranteed cost or retrospectively-rated policies and provide that, at the discretion of the insurer’s board of directors, a portion of the insurer’s surplus may be returned to the policy holder under certain conditions. These plans generally allow for a dividend payment where either certain administration expenses were less than average, or losses and associated expenses were less than anticipated. While dividend plans vary from company to company and over time, some variable dividend plans pay a dividend to a specific policyholder based on that policyholders’ individual loss experience.

(20) Workers’ compensation programs can include in a single agreement coverage for risks in multiple states (“multi-state” programs) and can also include additional lines of insurance, such as general liability and auto liability (“multi-line” programs). Such programs may also include endorsements for supplemental coverages such as stop gap coverages, foreign voluntary compensation, and United States Longshoremen’s and Harbor Workers’ exposures.

(21) All of the insurance transactions upon which plaintiffs base their complaint involve insurance coverage in multiple states. Thus, the insurance statutes, regulations and rules of most, if not all, of the 50 states are implicated by plaintiff’s claims in this lawsuit and require an individualized analysis to determine which law applies and how it applies.

(22) Regulation of workers’ compensation insurance varies and has varied from state to state and, over time, within each state. An individualized analysis is required to determine which state’s law applies to the various elements of each plaintiff’s claim for any specific program at any particular point in time.

(23) Pennsylvania insurance law, as with most states, requires employers to provide workers’ compensation coverage for employees injured within the scope of their employment. Insurers, however, are not required to write coverage for any particular employer.

(24) Employers usually purchase coverage in the “voluntary” market. Employers that are unable to secure coverage in the voluntary market can obtain it through assigned risk plans that are typically created by state legislation. In Pennsylvania, the Pennsylvania State Workers’ Compensation Insurance Fund provides assigned risk coverage and also competes to provide insurance in the voluntary market. The Commonwealth provides financial support if the state fund incurs any overall losses. In other states, assigned risk coverage is generally written by one or more servicing carriers, and then reinsured through a reinsurance mechanism pursuant to which voluntary market carriers share on a proportional basis any operating losses resulting from such policies.

(25) The market for loss-sensitive workers’ compensation insurance products in the voluntary market was very competitive during the time period at issue. Approximately 300 carriers were licensed to sell workers’ compensation insurance programs in Pennsylvania from 1985 to the present. Carriers aggressively competed, not just on price, but on the many other terms that are of importance to large corporations. In fact, many plaintiffs made their purchasing decision on factors other than cost. Most of the plaintiffs switched carriers at least once over the term of the putative class period.

(26) In the mid-1980s and into the early 1990s, losses in the residual markets mounted and were assessed to carriers who were writing voluntary market workers’ compensation coverage in certain states other than Pennsylvania. These assessments increased the cost to the carrier of every dollar of insurance written in the voluntary market. Confronted by these assessments to subsidize residual markets in other states, carriers acted in a number of different ways that were in their individual economic self-interest to respond to the added costs of doing business. Because the Pennsylvania state fund’s losses are subsidized by the Commonwealth, the fund does not assess carriers. Pennsylvania insurers were assessed, however, for deficits attributable to coverage provided under the United States Longshoremen’s and Harbor Workers’ Act, for Pennsylvania employees. Longshoremen’s coverage is administered pursuant to federal law.

(27) Defendants did not have a common company-wide practice to impose “RML charges” on insureds in a systematic fashion. Loss-sensitive policies were individually underwritten. Pricing was determined by many factors, which may or may not have included residual market expenses associated with underwriting a specific policy. Even though some defendants published underwriting manuals or written guidelines reflecting how residual market expenses might be factored into an initial proposal by a carrier, the amount of residual market charges (if any) were negotiated with the insured.

(28) The many variations in carriers’ treatment of residual market expenses were widely understood by insureds and their brokers, who functioned as agents of the insureds. Residual market assessments were specifically disclosed to insureds or brokers in negotiations over the terms of multi-state loss-sensitive workers’ compensation programs.

(29) If carriers had not considered increased residual market assessments in their pricing, some insureds who purchased multi-state loss-sensitive workers’ compensation insurance programs in the voluntary market either would have been unable to obtain such coverage or the pricing or other terms of the program would have changed.

(30) Workers’ compensation insurance is regulated in Pennsylvania, as in other states. There has not been a single regulatory scheme in effect in Pennsylvania from 1985 to the present however. Consequently, whether or not a particular insurance program complied with applicable rules, regulations and statutes at any particular time requires an individualized inquiry. From the mid-1980s through the 1990s, the Pennsylvania Legislature and commissioner of insurance, as did the analogous authorities in many states, responded to large employers’ demands for greater flexibility in order to achieve lower rates and obtain coverages and program features that they desired.

(31) Effective January 1,1992, the Pennsylvania Compensation Rating Bureau filed, and the Pennsylvania commissioner approved, a large risk alternative rating option plan for use with Pennsylvania workers’ compensation coverage. This LRARO filing specifically authorized carriers to negotiate the structure, parameters and premium rates of retrospetively-rated programs with larger insureds without reference to filed rates or factors. The nature and extent of regulation applicable to LRARO’s is different from the regulations applicable to retrospectively-rated workers’ compensation insurance.

(32) Pennsylvania also approved use of large deductible programs for workers’ compensation insurance. Many of these plans allowed negotiation and reduction of expenses, including RML expenses and, therefore, reduced the price that insureds paid for workers’ compensation insurance. For example, in August 1991, the AIG companies filed a large deductible plan that expressly allowed collection of RML expenses. The nature and extent of regulations applicable to large deductible programs is different from regulation of retrospectively-rated workers’ compensation insurance.

(33) Under Pennsylvania regulations, carriers were allowed to file with the PCRB their own rating plans. An example of such a filing is the AIG companies’ large risk rating plan. This filing, approved by the Commonwealth in 1992, explicitly references the recovery of RML expenses.

(34) Effective luly 2,1993, the Pennsylvania Legislature adopted a more flexible open competition regulatory framework in which each carrier individually determines its own rates. Under the 1993 statute, the PCRB determines loss costs, expected workers’ compensation losses, for insurers to use in making their rates. Carriers can either adopt the PCRB’s loss costs or calculate their own expected losses. Carriers determine their rates by combining these loss costs with their expenses.

(35) All of the plaintiffs’ multi-state workers’ compensation insurance programs were the subject of extensive, separate negotiations. Plaintiffs relied on the advice and counsel of their professional insurance brokers, in-house risk managers, legal counsel, and insurance consultants in those negotiations The defendants did not have a special or fiduciary relationship with the plaintiffs during the arms-length negotiations.

(36) Plaintiffs obtained customized insurance programs that provided them with valuable benefits beyond those available through more standardized insurance programs they consciously declined to purchase. Plaintiffs negotiated many parameters and features of the programs such as coverage limits, minimum and maximum premiums, loss conversion factors, special services, dividend plans, paid loss features and payment plans that were just as important to plaintiffs as pricing, but were not contained in any filing with the insurance department. The key pricing concern to insureds was the total program price, not the pricing of individual insurance lines (such as workers’ compensation or general liability), pricing of individual state coverages, or any amount characterized as a residual market expense.

(37) Because of the individualized negotiations between each plaintiff and its insurance carrier, no two plaintiffs’ insurance programs are alike. The carriers did not use uniform methods to price or structure plaintiffs’ workers’ compensation insurance. For example, some plaintiffs’ programs contained a basic premium component (e.g., Matria, Melvin Simon, and Strick), while others did not (e.g., Andrew). The rating plans for some plaintiffs (e.g., Alumax, Charter, and Melvin Simon) changed over time. Many plaintiffs’ programs (e.g., Matria) defined a particular component of the premium formula differently than the programs of others (e.g., Melvin Simon and Strick). Some plaintiffs’ programs (e.g., A ARP) provided combined coverage for several types of insurance, while those of others (e.g., USNR) provided workers’ compensation coverage only. Some plaintiffs’ programs were high deductibles (e.g., AARP, Charter and Strick), others were retrospectively-rated (e.g., Alumax), while others contained both high deductibles and retrospectively-rated policies (e.g., Melvin Simon). The plaintiffs’ programs also contained a wide variety of extra coverages, extra benefits, and special payment plans that added value to the insured.

(38) Plaintiffs’ contention that all plaintiffs and other Pennsylvania insureds uniformly paid “RML charges” is contradicted by the evidence in the record. For most of the plaintiffs, no evidence was presented to suggest that they were ever charged, or paid, “RML charges” for Pennsylvania coverage. An individual inquiry is necessary to determine if any particular plaintiff or putative class member paid an “RML charge” for Pennsylvania coverage.

(39) Plaintiffs did not rely on any common representations contained in their boilerplate form policies about the existence and/or legality of RML charges in connection with their insurance program. Whether there were any misrepresentations, as well as the nature of any reliance on them by plaintiffs, varies with each plaintiff and is not susceptible to common or class-wide proof. For example: (a) numerous plaintiffs testified that the defendants made no affirmative misrepresentations to them; (b) to some plaintiffs, the inclusion of RML charges was immaterial to their purchase, since they considered it irrational to focus on anything other than the bottom line when negotiating the price for insurance coverage; and (c) many plaintiffs conceded that they knew that a portion of their premium dollars were to be used to defray their carriers’ residual market expenses.

(40) Many plaintiffs never saw, much less relied on, the boilerplate language plaintiffs now claim as the basis of their fraud allegation. Many, if not all, plaintiffs never received copies of such policy language until weeks or months after they had executed written agreements with their carriers detailing the pricing terms of their insurance programs and after their coverage had begun. Some plaintiffs admit that they never relied on any representation by their carrier that filed rates, manuals, or other filings would form the basis of their premium. In any case, evidence concerning each plaintiff’s alleged reliance would vary plaintiff by plaintiff.

(41) Each plaintiff had actual or imputed knowledge of insurance regulations and of any variations between its insurance program and applicable filings. Many of the plaintiffs employed professional risk managers who were knowledgeable about the regulation of rates for workers’ compensation insurance. Many relied on lawyers to evaluate their insurance agreements. Most, if not all, plaintiffs employed — as their agents — professional insurance brokers and consultants to assist them in soliciting proposals from workers’ compensation carriers and in evaluating the proposals they received.

(42) Plaintiffs presented no evidence of any meeting or other event in which a plan was formed, and even if it is presumed to have occurred, have presented no evidence to suggest when it occurred.

(43) There is no evidence of concerned activity among the defendants or any other carriers throughout the 15-year class period, or any particular period within that 15-year span to uniformly include “RML charges.”

(44) Plaintiffs have presented no evidence from which class-wide impact of any conspiracy can be determined.

(45) Counterclaims have been asserted against Alumax, Foodarama and ERM by their carriers for substantial damages. The counterclaims assert that the insureds paid less than the filed premium for certain of their loss-sensitive workers’ compensation programs. Sentry also asserted a counterclaim against Matria, claiming a return of dividends. Counterclaims raise numerous issues which will vary from policy to policy because they implicate the same complex comparison of filed premium with the sold program.

(46) Insureds with a complaint about their insurance programs are able and willing to bring their own individual lawsuits for alleged workers’ compensation overcharges without the need for a class action. Some have already done so. For example, plaintiff Charter Medical Corporation filed its own suit in Superior Court in the State of Arizona on June 26, 1998, six months before it joined this lawsuit, alleging that it was overcharged for its workers’ compensation insurance. The damages Charter seeks in its individual Arizona lawsuit include the amounts claimed here. Scores of other individual plaintiffs have also pursued individual claims in the Arizona lawsuit.

(47) The damages claimed by the named plaintiffs are large enough to be pursued as individual actions. The three plaintiffs who have disclosed information concerning the size of their claims allege that they seek damages of hundreds of thousands of dollars. Matria claims damages in excess of $500,000. Melvin Simon claims damages of $476,236. Andrew claims damages in excess of $100,000. Accordingly, the claims as alleged by the plaintiffs would be large enough to warrant a conclusion that they can be pursued individually.

(48) The choice of law applicable to any particular contractual relationship will require individual inquiry into such matters as the states of incorporation of the plaintiff and defendant, their principal place of business, where the contracts were negotiated, where the contracts were written, what states and lines are included within the contract, choice of law provisions contained in the contract, et cetera.

(49) It is likely that the law of most, if not all, states will be applicable to various claims in this action.

(50) There are significant differences in the applicable law of the 50 states. Indeed, plaintiffs’ own analysis demonstrates differences in the law.

(51) Plaintiffs did not provide the court with any case management plan that addresses the complexities of managing this case, nor did they provide the court with any plan that addresses the variations in state law that would be faced in this action. There is no evidence to suggest that a jury may be clearly and properly charged on the various claims that may be tried here, should this action proceed an a class-wide basis.

DISCUSSION

, It is this court’s present responsibility to determine whether plaintiffs’ suit is properly certifiable as a class action. In this respect, our authority is limited by the Pennsylvania Rules of Civil Procedure: “[t]he 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.” Pa.R.C.P. 1707 (explanatory note-1977). Thus, for the time being, we must refrain from ruling on plaintiffs’ ultimate right to recovery and on the merits of any defenses raised.

Our decision at this stage is limited to whether plaintiffs have satisfied the requirements described in Pennsylvania Rule of Civil Procedure 1702:

“Rule 1702: Prerequisites to a class action
“One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
“(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 Rulel708.”

In determining if these criteria are satisfied, the court is clearly vested with broad discretion. Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 51, 501 A.2d 635, 640 (1985) (court has authority to certify certain claims, issues or forms of relief and not others); Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 135, 451 A.2d 451, 457 (1982) (same). SeePa.R.C.P. 1710(c)(1); Klemow v. Time Inc., 466 Pa. 189, 197, 352 A.2d 12, 16 (1976); Prime Meats Inc. v. Yochim, 422 Pa. Super. 460, 467, 619 A.2d 769, 773 (1993).

However, we recognize that decisions in favor of maintaining a class action should be liberally made. D’Amelio, 347 Pa. Super, at 448, 500 A.2d at 1141; Bell v. Beneficial Consumer Discount Co., 241 Pa. Super. 192, 205, 360 A.2d 681, 688 (1976) (class suits enable the assertion of many meritorious claims that might not otherwise be litigated). Accord Janicik, 305 Pa. Super, at 128, 451 A.2d at 454.

In exercising our discretion, this court recognizes that the burden of proving that class certification is appropriate clearly falls upon the party seeking certification. D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 449, 500 A.2d 1137, 1141 (1985); Janicik v. Prudential Insurance Co., 305 Pa. Super. 120, 128, 451 A.2d 451, 454 (1982). The proponent must present evidence sufficient to make out a prima facie case “from which the court can conclude that the . . . class certification requirements are met.” Janicik, 305 Pa. Super, at 130, 451 A.2d. at 455. If the defendant presents contrary evidence establishing an actual conflict on an essential fact, the proponent “bears the risk of non-persuasion.” Id.

Given this context, the court will enumerate the factors it considered in ruling on class certification.

I. Numerosity

To satisfy this criterion, the class must be both numerous and identifiable. 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 [plaintiffs] sue individually.” Temple University v. Pennsylvania Department of Public Welfare, 30 Pa. Commw. 595, 603, 374 A.2d 991, 996 (1977) (123 plaintiffs sufficiently numerous); ABC Sewer Cleaning Co. v. Bell of PA, 293 Pa. Super. 219, 225, 438 A.2d 616, 619 (1981) (250 plaintiffs sufficiently numerous); Ablin Inc. v. Bell Telephone Co., 291 Pa. Super. 40, 51, 435 A.2d 208, 214 (1981) (204 plaintiffs sufficiently numerous). Where a class is narrowly and precisely drawn, but there are still so many potential members that joinder is impractical or impossible, the class is sufficiently delineated to satisfy the numerosity requirement. Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 408, 615 A.2d 428, 430 (1992), citing Cribb v. United Health Clubs, 336 Pa. Super. 479, 481, 485 A.2d 1182, 1184 (1984). A class is not sufficiently identifiable “where the class definition is so poorly established that the court [is unable to] discern who the potential class members are. . . .” Weismer, 419 Pa. Super. at 408, 615 A.2d at 430; Dickler v. Shearson Lehman Hutton Inc., Phila. C.C.P. no. 9002-2653, opinion, April 17, 1997 (Levin, J.) (proposed class not identifiable because plaintiffs’ inconsistent pleadings prevented court from identifying the class of potential plaintiffs).

The defendants do not object to certification of plaintiffs’ proposed class on the issue of numerosity. The class which plaintiffs propose (all employers in the Commonwealth of Pennsylvania that have purchased or renewed retrospectively-rated or adjusted policies or other similarly loss-sensitive policies in the voluntary market since 1985) contains a sufficient amount of insurance purchasers such that joinder of those members is impracticable. Accordingly, this court rules that numerosity is satisfied.

II. Commonality

For class certification, plaintiffs must also establish that their claim presents “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 the class members, which can be justly resolved in a single proceeding.” Weismer, 419 Pa. Super, at 408-409, 615 A.2d at 431 (emphasis in original); D’Amelio, 347 Pa. Super, at 451, 500 A.2d at 1142 and Janicik, 305 Pa. Super, at 132, 451 A.2d at 457. See Pa.R.C.P. 1708(a)(1).

In cases involving contracts, if the circumstances surrounding the application for and issuance of each contract must be considered to determine defendant’s liability then “it is impossible to find that there are questions of fact common to all class members.” Hayes v. Motorists Mutual Insurance Co., 370 Pa. Super. 602, 609, 537 A.2d 330, 333 (1987).

A. Contract-Based Claims

Plaintiffs argue that the commonality requirement is satisfied because there was a common course of conduct among defendants, that of including illegal RMLs in the insurance contracts sold to the plaintiffs. Plaintiffs assert that defendants act similarly in the following five ways: (1) misrepresenting and inflating the applicable tax multiplier used in calculating the final premium; (2) imposing illegal and unauthorized residual market assessments against voluntary market carriers; (3) using an illegally inflated loss conversion factor; (4) misrepresenting and illegally inflating the basic premium amounts; and (5) requiring insurers to purchase coverage that was unrequested and unnecessary. (Pis.’ second am. compl. a^38(a)-(e).)

Defendants respond that their liability can’t be decided in a class action because there are individual issues regarding each plaintiff’s case which must be decided by the court. These issues include whether, in fact, RMLs were actually included in the contracts and whether or not the choice of law clauses contained in the individual contracts should be heeded in light of Pennsylvania’s interest in the matter.

The court agrees that the plaintiffs’ contract claim lacks sufficient commonality because class-wide adjudication of the contract claims would require the court to consider each individual policy and policyholder. Resolving plaintiffs’ contract claim class-wide would require individual inquiries into (1) whether each policy actually contained RMLs, some of which plaintiffs claim are concealed, (2) whether each plaintiff was damaged as a result of such RMLs; and (3) whether each defendant’s contact with the state of Pennsylvania rose to a level which would cause the state’s other interests to outweigh its interest in upholding the contract.

Plaintiffs points to this court’s decision in Katlin v. Tremoglie, no. 9706-2703, slip op. at 9 (Pa. C.C.P. June 29, 1999), which recognized that it is appropriate to bifurcate issues of liability from damages. In that case the court wrote that “a trial limited to the issue of liability is an efficient method of deciding [defendant’s] liability,” quoting Cambanis, 348 Pa. Super, at 51, 501 A.2d at 640. Plaintiff states, “Indeed, the court went on to express agreement that, under appropriate circumstances, ‘certain issues or elements of a claim’ may be certified.” This court does not question that this is the state of the law, but rather does not believe that this case presents the appropriate circumstances.

In the Katlin and Cambanis matters the members of the proposed classes were in identical situations for purposes of liability. The courts found that individual inquiries into plaintiffs’ damages do not defeat certification of a class action. However, in this case, plaintiff proposes the following procedure: “A finding by the jury that a carrier had a general policy and practice of imposing RMLs would be followed by a claims proceeding in which each class member would be required to present documentary proof that its policy contained an RML reflecting the carrier’s general policy and practice.” This would not be an inquiry into the amount of, or the existence of, damages, but rather would be done to determine defendants’ liability as to each class member. This type of individual inquiry is not supported by the case law and, in fact, defeats the very purpose of class action lawsuits. Indeed, the need for such an inquiry illustrates the predominance of individual issues in this case.

Additionally, there is an issue of choice of law in this case which defeats commonality. It cannot be assumed that the laws of Pennsylvania will apply to claims involving multi-state policies issued to multi-state employers. Although each of the contracts concerns dealings that may have an effect in Pennsylvania, some of the contracts have choice of law clauses which choose the law of other jurisdictions. The detailed individual analysis which would be required to determine which law applies to each contract is overwhelming. Ultimately this analysis could result in the laws of different states being applied to each individual contract.

We find that the plaintiffs have not satisfied the commonality criterion because common issues concerning the policies that the defendants issued do not predominate over individual issues surrounding each policy and policyholder.

B. Fraud-Based Claims

Plaintiffs’ fraud claims lack commonality because individual issues of reliance upon defendants’ misrepresentations predominate over the common issues regarding defendants’ conduct.

Fraud-based claims are unsuitable for class-wide resolution because resolving those claims typically requires individual proof of reliance and materiality. Klemow v. Time, 466 Pa. 189, 197, 352 A.2d 12, 16 (1975); Di Lucidlo v. Terminix, 450 Pa. Super. 393, 402, 676 A.2d 1237, 1241 (1996); Prime Meats Inc. v. Yochim, 422 Pa. Super. 460, 467, 619 A.2d 769, 773 (1993).

Plaintiff argues that both materiality and reliance can be litigated class-wide under this court’s rationale in Lewin v. Saidel, no. 9604-0015 (Dec. 19, 1997). In Lewin this court certified plaintiff’s fraud claim because it determined, based on expert testimony, that a nondisclosure was material to all the plaintiffs. Here, plaintiffs maintain that the materiality element can be decided class-wide because defendants uniformly issued policies which contained form language that misrepresented that they were in compliance with applicable law and regulations. Given the purported materiality of these alleged charges, plaintiffs argue that reliance can be presumed.

This court disagrees because while the contract language may have been identical in all of the policies issued by the defendants, the reliance of the proposed class members on that language is doubtful. Here, defendants communicated with plaintiffs individually during negotiation sessions prior to the issuance of the policies. At the certification hearing, defendants pointed to the statement of one of plaintiffs’ employees, Mr. Harcharik, who stated, “I was focused on the bottom line cost and I was indifferent to how the premium was allocated.” (Certification hearing p. 227.) In Lewin, the class’ claims focused on the adequacy of defendant’s proxy statement. To resolve Lewin’s claim, this court did not need to scrutinize other communications made between the plaintiff and defendant. Unlike in Lewin, to resolve plaintiffs’ fraud claims class-wide, this court must consider the communications between individual defendants and plaintiff policyholders to determine whether each class member did, in fact, rely upon the contract language that the plaintiffs cite.

Given the factual dissimilarity between this case and Lewin, the court is bound to follow the holdings of Prime Meats and DiLucidio and not certify plaintiffs’ fraud claims because they involve critical and individual issues of reliance and materiality.

C. Statute of Limitations

Defendants assert that the application of the statute of limitations and the discovery rule to the class’ claims preclude any finding that common issues predominate. They argue that the statute of limitations on some plaintiffs’ claims began to run in 1985 and others in subsequent years. Defendants submitted the following argument in their memorandum of law in opposition to plaintiffs’ motion for class certification:

“The plaintiffs’ individual claims are based on 35 insurance contracts in force at various times between 1986 and 1996. Complaint ¶¶12-22. Of those, the policy periods of 28 of the contracts were concluded, and all com-pensable losses incurred, by February 6, 1994 — four years before suit was brought — and no policy period extended beyond March 8,1996. Id. Thus, if Pennsylvania law were the only law that governed, many claims would be barred on their faces. See 42 Pa.C.S. §525 (West 1981 and Supp. 1998) (four-year limitations period for contract claims); 42 Pa.C.S. §5524 (West 1981 and Supp. 1998) (two-year limitations period for fraud claim)!”

Plaintiffs respond by suggesting that fraud or misrepresentations on the defendants’ part prevented the statute of frauds from running until the plaintiffs did, in fact, .discover the misdeeds for which they now seek relief. As discussed above, fraud on the defendants’ part is an issue which must be examined on an individual basis. Once the fraud issue is resolved as to each class member, even if fraud is found to be present in each transaction between insured and insurer, an individual statute of limitations analysis must commence. Defendants contend, therefore, that the existence of individualized issues and the need for individualized inquiries prevent common issues from predominating. The court will explain why the statute of limitations is an issue in this case that cannot be resolved class-wide.

Based on the evidence adduced in support of and against plaintiffs’ motion for class certification, the court is convinced that the statute of limitations is a central issue in this case. Some insureds may have been aware of the defendants’ alleged breaches as early as 1985, having negotiated their policies which began in that year and knowingly agreed to pay RMLs.

Persons who assert a cause of action are “under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period.” Pocono International Raceway v. Pocono Produce Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1993). Under the discovery rule the statute of limitations is tolled during the time that a plaintiff, despite the exercise of reasonable diligence, is unable to determine his injury or its cause. Id. at 84, 468 A.2d at 471. In Cochran v. GAF Corp., 542 Pa. 210, 217, 666 A.2d 245, 249 (1995), the Pennsylvania Supreme Court explained that “[ujnder [the reasonable diligence standard] the plaintiff’s actions must be evaluated to determine whether he exhibited those qualities of attention, knowledge, intelligence and judgement which society requires its members for the protection of their own interests.” (emphasis added) The court explained further that the standard is “sufficiently flexible... to take into account differences between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question.” Id. at 217, 666 A.2d at 249 (quoting Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 292, 505 A.2d 973, 988 (1985)). Therefore, the discovery rule cannot be litigated on a class basis because the reasonable diligence standard requires an individual inquiry into each policyholder’s knowledge of the defendants’ actions and whether the policyholder exercised reasonable diligence to discover the cause of his or her injury. That a plaintiff’s actions will be governed by an objective standard does not vitiate the need for an individualized inquiry into whether each class member meets that standard. Whether an insured meets the reasonable diligence standard will depend on whether the insured negotiated its policy, had knowledge of the presence of RMLs and, generally, took actions to determine whether the insurance policy truly reflected the agreement that was negotiated.

Plaintiffs respond stating that “even if this court were to completely discredit plaintffs’ allegations of fradulent concealment, most class members’ claims are not time barred.” (Plaintiffs’ post-hearing memorandum, p. 23.) (emphasis added) Plaintiffs attempt to distinguish this case from Antonoff v. First Fidelity Bank N.A., Phila. C.C.P. no. 9802-2825 (1999), stating that here, unlike in Antonoff, fraudulent concealments are not necessary to save every class member’s claims. This is so, plaintiff avers, because some of the contracts are continuing. Pennsylvania law holds that contracts which are continuous, those which do not fix any certain time for payment or for the termination of the services, keep the statute of limitations from beginning to run until their completion. Wm. B. Tenny Builder and Developer v. Dauphin Deposit Bank and Trust Co., 302 Pa. Super. 342, 346-47, 448 A.2d 1073, 1075 (1982). However, this argument only serves to create yet another individualized analysis for the court to perform as to each class member, determining which contracts are continuing and which are not. Although some of the contracts may ultimately be determined to be continuing, both continuing and non-continuing contracts then must go through the statute of limitations and discovery rule analysis already discussed.

The evidence reveals that the insureds’ knowledge about the defendants’ actions and exercise of reasonable diligence varied as did their contracts’ status as a “continuing” contract. Therefore, we conclude that plaintiffs have not satisfied the commonality criterion and that common issues about defendants’ conduct do not predominate over individual issues concerning insureds’ exercise of reasonable diligence, insureds’ knowledge about the defendants’ actions and individual contracts’ “continuing” status. Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 408-409, 615 A.2d 428, 431 (1992) (finding that statute of limitations, among another issues, prevented common issues from predominating over individual issues).

III. Typicality

Plaintiffs must also demonstrate that their “claims or defenses ... are typical of the claims or defenses of the 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 her pursuit of her own interests will advance those of the proposed class members.” D’Amelio, 347 Pa. Super, at 458, 500 A.2d at 1146; Janicik, 305 Pa. Super, at 134, 451 A.2d at 457; Ablin, 291 Pa. Super, at 47, 435 A.2d at 212. See also, 1 Newberg on Class Actions § 1115a.

“Failure to find commonality . . . necessitates a conclusion that the typicality requirement of Rule 1702(3) has likewise not been met.” Hayes v. Motorists Mutual Insurance Co., 370 Pa. Super. 602, 610, 537 A.2d 330, 334 (1987). We determined earlier that plaintiffs have not satisfied the commonality criterion because a variety of facts and circumstances — unique to each plaintiff — must be considered to determine defendants’ liability. Consequently, the plaintiff has failed to satisfy typicality as well. Hayes, 370 Pa. Super, at 610, 537 A.2d at 334.

IV. Adequacy of Representation

For the class to be certified, this court must also conclude that the plaintiffs “will fairly and adequately assert and protect the interests of the class.” Pa.R.C.P. 1702(4). Adequate representation is evaluated under considerations set forth in Pennsylvania Rule of Civil Procedure 1709. However, having determined that plaintiff failed to satisfy the typicality and commonality requirements, it is “unnecessary for the trial court to consider the remaining ... elements.” Weismer, 419 Pa. Super, at 410, 615 A.2d at 431.

V. Fair and Efficient Method for Adjudication

Finally, the court would generally address whether allowing plaintiffs to proceed with adjudication of this suit as a class action would be both fair and efficient. The factors to be evaluated are set forth in Pennsylvania Rule of Civil Procedure 1708. As above, having determined that plaintiff has failed to satisfy the requirements for certification of this case as a class action, we need not reach the merits of this inquiry. Weismer, 419 Pa. Super, at 410, 615 A.2d at 431.

CONCLUSIONS OF LAW

(1) The class is sufficiently numerous that joinder of all its members would be impracticable.

(2) There is not a predominance of questions of law and fact common to the class.

(3) The claims raised by the representative party are not typical of the claims belonging to and necessary for, the protection of absent class members.

(4) This court was not required to determine whether the proposed class representative will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule1709.

(5) This court was not required to determine whether allowing this matter to proceed as a class action would provide a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

For the foregoing reasons, this court determines that the instant case is not appropriate for disposition as a class action and enters the attached order.

ORDER

And now, January 10,2000, in consideration of plaintiffs’ motion for class certification and all submissions related thereto, it is hereby ordered that plaintiffs’ motion for class certification is denied.

      . Pis.’ second am. compl. at ¶5. There are 11 named plaintiffs in this action: Foodarama Supermarkets Inc., WSR Corp., Andrew Corporation, American Association of Retired Persons Inc., Dal-Tile Corporation, The ERM Group, Matria Healthcare Inc., Melvin Simon & Associates Inc., Specialty Restaurants Corp., Alumax Inc. and Strick Corp.

      . There are 13 insurance companies who sold policies to the 11 named plaintiffs: Insurance Company of North America, Home Insurance Company, Liberty Mutual Fire Insurance Company, Highlands Insurance Company, Old Republic Insurance Company, Industry Insurance Company, Sentry Insurance — a Mutual company, Standard Fire Insurance Company, Travelers Casualty and Surety Company, Reliance Insurance Company, Pacific Employers Insurance Company, Zurich Insurance Company and Travelers Indemnity.

      . Pennsylvania has in place a Workers’ Compensation Act, 77 P.S. §1. The purpose of the Act is to provide sole and exclusive means of recovery for all injuries incurred within the course of employment. The Act is to provide a state-run program of accident insurance, rather than an assigned risk plan, that insures quick and certain payment for the work-related injuries of those covered by the Act without resort to the court system.

      . Plaintiffs describe this type of policy as a “loss-sensitive policy.”

      . The plaintiffs describe the four elements as:
      “(1) Basic premium — reflecting the insurer’s acquisition costs (e.g. commission), operating expenses (underwriting, loss control services, audit, general administration etc.), insurance charge and profit; (2) Incurred losses — reflects actual losses paid, loss reserves, subrogation expenses, interests on judgments, and in some cases allocated loss adjustment expenses; (3) Loss conversion factor — reflecting claim adjustment expenses and the cost of the carrier’s claim services, such as investigation of claims and filing of claim reports; and (4) Tax multiplier — reflecting state premium taxes licenses fees and miscellaneous assessments (not including residual market assessments) that insurer must pay on the premium it collects.” (Pis.’ second am. compl. 129(a)-(d).)

      . Plaintiffs’ causes of action are (1) breach of contract; (2) common-law fraud; (3) civil conspiracy; (4) unjust enrichment and (5) negligence.

      . References to “defendants’ answers ¶_” should be read to include citations to each defendant’s answer.

      . See e.g., deposition of Thomas Quinn/Standard Fire at 179; deposition of LuAnn Brinldey/Matria at 88; deposition of John McCauley/ Charter at 41-42; Slotznick affidavit, ¶25; Scheffinan report, p. 12.

      . Slotznick affidavit, ¶¶25, 31; Scheffinan report, p. 13.

      . Slotznick affidavit, ¶¶65-66; Workers’ Comp., A Complete Guide to Coverage, Laws and Cost Containment, L. Robinson and A. Rudds, ed. 1998, at XI.P.7, cited in Scheffman report, p. 19 n.37.

      . Id. atXI.M.l.

      . Slotznick affidavit, ¶¶1-8.

      . Id., ¶21.

      . Scheffman report, p. 12.

      . Slotznick affidavit, ¶21; Scheffman report, p. 15.

      . Scheffman report, pp. 11-12; SlOtznick affidavit, ¶22.

      . See e.g., deposition of Timothy Harcharik/Melvin Simon at 26-27,63-65; deposition of Mark Forsythe/Melvin Simon at 181; deposition of Brian Woodward/Alumax at 100-101; McCauley/Charter at 26-27; Scheffman report, p. 42.

      . Scheffman report, p. 43.

      . See e.g., McCauley/Charter at 130-36; Harcharik/Melvin Simon at 40-41; Woodward/Alumax at 100-101; deposition of Lawrence Greenwald/Melvin Simon at 83-84; Forsythe/Melvin Simon at 181; Scheffman report, pp. 38-39,

      . See e.g., McCauley/Charter at 130-36; Woodward/Alumax at 109-110; Sevick/ERM at 64-69; Forsythe/Melvin Simon at 51; deposition of Denise Grimes Terry/Charter at 39.

      . See e.g., McCauley/Charter at 130-31; Woodward/Alumax at 85; Sevick/ERM at 70.

      . Scheffman report, pp. 17-19.

      . Scheffman report, pp. 15, 17-18.

      . Scheffman report, p. 19.

      . Quinn/Standard Fire at 150; Woodward/Alumax at 116-17; Millard/Matria at 136; deposition of Louis Wasnesky/Old Republic at 166; deposition of Robert Gerber/Reliance at 116.

      . Johnson & Higgins Casualty Bulletin (March 21,1989, WAUSA 00202788); Forsythe/Melvin Simon at 120-21; Woodward/Alumax at 116-17; deposition of Brian Mibus/Liberty at 236; Scheffman report, p. 40.

      . Woodward/Alumax at 31-32; McCauley/Charter at 47-49; Sevick/ERM at 101-102; Brinkley/Matria at 59; Millard/Matria at 44-45; Scheffman report, p. 41.

      . Mibus/Liberty at 244; Forsythe/Melvin Simon at 114-15; Scheffman report, p. 16.

      . Forsythe/Melvin Simon at 114-15; Scheffman report, p. 26.

      . 9/13/99 class certification hearing transcript, pp. 141-42; deposition of plaintiffs’ expert, Robert Hughes at 104, 106.

      . Defendants’ memorandum of law in opposition to plaintiffs’ motion for class certification, p. 5 and exhibit D thereto; hearing tr., pp. 145-46.

      . Rec. no. 51 [PCRB LRARO filing]; defendants’ mem., pp. 5-6, 13 and exhibit D thereto; Scheffman report, p. 14; hearing tr., pp. 145-46.

      . Slotznick affidavit, ¶¶24-25; Scheffman report, p. 37.

      . Rec. no. 50 [AIG large deductible plan filing]; hearing tr., pp. 146-47.

      . Rec. no. 52 [AIG large risk rating plan filing]; defendants’ mem., pp. 6, 13 and exhibit E [the AIG LRRP filing] attached thereto.

      . 77 P.S. §1035.9 (Supp. 1998); 31 Pa. Admin. Code §120.1(a).

      . 77 PS. §1035.9 (Supp. 1998); 31 Pa. Admin. Code §§120.1, 120.3, 120.5.

      . 77 P.S. §1035.9 (Supp. 1998); 31 Pa. Admin. Code §120.1.

      . Pa. Admin. Code §120.4; Wasnesky deposition, pp. 72-73; Slotznick affidavit, ¶29.

      . Woodward/Alumax at 31-34, 94, 100-101, 103; McCauley/ Charter at 20-21, 23-24, 27; Terry/Charter at 34-35; Sevick/ERM at 51-52, 54-55, 62, 70; deposition of Joseph Troilo/Foodarama at 86, 264; Greenwald/Melvin Simon at 48-51, 83-84; deposition of John G. Haase/USNR at 80,93-94; Brinldey/Matria at 32-34,37-38,153; deposition of Carol Lew/Andrew at 21; deposition of Insook Copes/AARP at 13; deposition of James Fromm/Specialty at 24; deposition of John R. Badey (FL)/Strick at 43, 89.

      . Woodward/Alumax at 25-27, 29-30, 60-61, 64-65, 78; McCauley/Charter at 7.

      . Woodward/Alumax at 68-69, 80; Brinkley/Matria at 22-24,49; Badey (PA)/Strick at 40.

      . Troilo/Foodarama at 192-93, 201-202, 263-65.

      . Woodward/Alumax at 178-79; McCauley/Charter at 28; Sevick/ ERM at 233; Slotznick affidavit at ¶¶111-13.

      . Greenwald/Melvin Simon at 83-85; Woodward/Alumax at 178-80; Forsythe/Melvin Simon at 82-83; Harcharik/Melvin Simon at 103; Scheffman report, p. 29.

      . Troilo/Foodarama at 265; Millard/Matria at 134; Forsythe/ Melvin Simon at 51; Harcharik/Melvin Simon at 42.

      . See Slotznick affidavit at ¶¶67-77.

      . Id. at ¶¶71, 93-95, 97-98.

      . Id. at ¶72.

      . Id. at ¶¶73, 93-95, 97-98, 102-104, 106-107.

      . Id. at ¶74.

      . See generally, Slotznick affidavit, appendix 1.

      . See generally, Slotznick affidavit, appendix 1.

      . See e.g., National Commercial Accounts Department Manual, section 2004, October 1991, STDFR 00002012; Calculation of Average Tax Multiplier, 5/9/90, STDFR 00002612 (Melvin Simon); Risk Analysis Report, p. 10, ZURIC 002820 (Strick); Involuntary Loads, Loss Rating Manual 9/20/95, RELIA 00078392 (Specialty).

      . Lew/Andrew at 110-11, 180; McCauley/Charter at 70-71; Brinkley/Matria at 89; Terry/Charter at 22, 36, 70-71; Troilo/ Foodarama at 68; Greenwald/Melvin Simon at 166-67; Badey (FL)/ Strick at 72-73; Badey (PA)/Strick at 89; Haase/USNR at 161; deposition of John T. Kenny/Specialty at 94, 100-103, 146.

      . E.g., Harcharik/Melvin Simon at 42; Woodward/Alumax at 180-SI; Terry/Charter at 40-41; Troilo/Foodarama at 265; Haase/USNR at 139; Lew/Andrew at 177-78.

      . Woodward/Alumax at 92, 111, 113, 116-17; Terry/Charter at 23, 35,71; McCauley/Charter at 47-50, 59-62, 71, 77-78, 80,110-11, 115; Sevick/ERM at 101-102, 128, 215; Troilo/Foodarama at 62-64, 66-67,143,204-205; Greenwald/Melvin Simon at 65-66; Haase/USNR at 114-15; BrinMey/Matria at 44, 59-61,71,73,79-81, 86-87,138-39.

      . See Badey (PA)/Strick at 40; McCauley/Charter at 70-71; Brinkley/Matria at 135-37, 150-51; deposition of Leonard Barkan/ Strick at 45-46; exhibit F; Troilo/Foodarama at 44.

      . See Badey (PA)/Strick at 40; McCauley/Charter at 70-71; Brinkley/Matria at 135-37, 150-51; Barkan/Strick at 45-46. At most, therefore, the purportedly uniform misrepresentations on which plaintiffs depend are misrepresentations in the course of performance, which, under Pennsylvania’s “gist of the action” doctrine, are not actionable in fraud. See Sunquest Info. Sys. v. Dean Witter Reynolds Inc., 40 F. Supp.2d 644, 651 (W.D. Pa. 1999).

      . See Badey (PA)/Strick at 40; McCauley/Charter at 70-71; Brinkley/Matria at 135-37, 150-51; Barkan/Strick at 45-46; Troilo/ Foodarama at 44.

      . See e.g., Woodward/Alumax at 25-27,29-30,60-61,64-65,78; McCauley/Charter at 7.

      . Woodward/Alumax at 68-69, 80; Brinkley/Matria at 22-24,49; Badey (PA)/Strick at 40.

      . See Arizona complaint; defendants’ mem., exhibit, I; Terry/ Charter at 15.

      . Terry/Charter at 16-17.

      . Arizona complaint.

      . Millard/Charter at 101, 129-30.

      . Defendants’ mem., p. 48.

      . Lew/Andrew at 173.

      . The burden of proving that class certification is appropriate clearly falls upon the party seeking certification. D’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 449, 500 A.2d 1137, 1141 (1985); Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 128, 451 A.2d 451, 454 (1982).

      . The named plaintiff in Cambanis filed her claim on behalf of the estate of her deceased husband and as a representative of the class of all others who had been similarly wrongfully denied no-fault work loss benefits. In Katlin the named plaintiff filed the claim “on behalf of himself and all other persons who were treated by unlicensed physician David Tremoglie at the Bustleton Guidance Center.”

      . Such inquiry would not be limited to findings on the amount of each class member’s damages, but could include the question of such damages’ existence as well.

      . In Lewin officers of the defendant bank failed to notify shareholders that another bank had offered to purchase the shareholders’ bank. Plaintiffs’ expert based his opinion that the nondisclosure of an offer to purchase the bank was material to each and every shareholder because of the bank’s small size, low share liquidity, limited potential for expansion and various conditions in the market. Lewin v. Saidel, no. 9604-0015. (Mem. op., Dec. 19, 1997.)


source: Caselaw Access Project

author: WHITE, P.J.,

license: Public Domain

text:
    Commonwealth v. Byers

      C.P. of Venango County,
    C.R. no. 359-1999.

      Richard A. Linzer, senior deputy attorney general, for plaintiff.

      Michael Rusenfield, for defendants Byers.

      Raymond A. Bogaty, for defendant Stitt.

      Peter F. Vaira, for Pennsylvania Medical Society, am-icus curie.

      December 16, 1999
   WHITE, P.J.,

1. PROCEDURAL HISTORY

We have for consideration defendants’ motions to quash and/or petitions for habeas corpus. After careful review of the testimony via the transcripts of the preliminary hearing, the adjudication and order of the hearing examiner for the State Board of Medicine, the adjudication and order of the State Board of Medicine, the motions filed by the defendants, the response in each case filed by the Commonwealth, and the briefs by the parties for and against the motion, the amicus curiae brief submitted by the Pennsylvania Medical Society, and the arguments of counsel, the motions will be granted in part and denied in part.

All of the defendants in this matter were doctors employed by the Pennsylvania Department of Public Welfare at Polk Center in Venango County at the time of the alleged conduct. Polk Center is a residential treatment facility for severely to profoundly mentally retarded and developmentally disabled individuals. All of the victims in these cases were patients at Polk Center. All of the defendants were initially charged with neglect of care of a dependent person, 18 Pa.C.S. §2713, however, the district justice dismissed all of the counts brought under that section as it was determined by the district justice that that section did not become law until June of 1997 and, therefore, the conduct charged predated the act and it did not apply.

There are remaining three different charges against the five physicians. Simple assault, 18 Pa.C.S. §2701(a)(l), as to all five physicians for stapling patients without anesthesia. Recklessly endangering, 18 Pa.C.S. §2705, as to two of the physicians, Doctors Byers and Miranda, for reckless failure to treat and a charge of involuntary manslaughter, 18 Pa.C.S. §2504, as to Dr. Miranda. All five defendants filed petitions for habeas corpus before this judge and four of the defendants (all but Doctor Stitt) did file a motion to quash the information. In all instances, the cases are prosecuted by the Commonwealth Attorney General.

The matter was argued before this judge on June 21, 1999. The Pennsylvania Medical Society was permitted to, and did, file an amicus curiae brief. The court also considered, as both sides briefed and argued, the findings, conclusions and order of the hearing examiner for the State Board of Medicine dated April 12, 1999. The adjudication and order of the State Board of Medicine, dated October 29, 1999, was submitted to the court by defense counsel on November 1, 1999. The Commonwealth has not objected to the submission of the final adjudication of the State Board of Medicine to the court, therefore, based on Pa.R.E. 201, the court will take judicial notice of the state board’s actions. These actions are the culmination of the hearing examiner’s findings and conclusions which are already part of the record in this case. The adjudications and orders are not subject to reasonable dispute because they are capable of accurate and ready determination by sources whose accuracy cannot be reasonably questioned. Pa.R.E. 201(b). A court can take judicial notice without being asked, Pa.R.E. 201(c), and judicial notice can be taken at any stage of the proceeding. Pa.R.E. 201(f).

Based on our reading of the briefs and arguments of counsel, the material facts read in the light most favorable to the Commonwealth’s theory of the individual cases are not seriously in dispute. There are not significant distinctions between our reading of the preliminary hearing transcripts and the findings of fact made by the hearing examiner. We, therefore have considered the findings of fact made by the hearing examiner, Frank C. Kahoe in the same light as we considered the preliminary hearing transcripts.

2. DISCUSSION

In order to defeat a motion to quash or a petition for habeas corpus, the Commonwealth must establish aprima facie case against the accused. Commonwealth v. Fox, 422 Pa. Super. 224, 619 A.2d 327 (1993), alloc. denied, 535 Pa. 659, 634 A.2d 222 (1993). The sufficiency of proof standard used to establish a prima facie case is that the nature and quality of the evidence, if accepted as true, would allow the case to go to a jury. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983); Commonwealth ex rel. Scolio v. Hess, 149 Pa. Super. 371, 27 A.2d 705 (1942). The Commonwealth’s burden is to show in the prima facie case that a crime has been committed and that there is sufficient probable cause to believe the accused committed the offense. Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589 (1991). The Commonwealth must introduce evidence to support that each element of every offense charged is present in their case. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991 (1983); Commonwealth v. Owen, 397 Pa. Super. 507, 580 A.2d 412 (1990). Proof of guilt beyond a reasonable doubt is not necessary. Commonwealth v. Owen, 397 Pa. Super. 507, 580 A.2d 412 (1990). The court should make all reasonable inferences drawn from the evidence which support a verdict of guilty and the evidence should be read in the light most favorable to the Commonwealth. Commonwealth v. Owen, 397 Pa. Super. 507, 580 A.2d 412 (1990).

In the informations filed against all five defendants, the Commonwealth alleges three forms of culpable conduct, that is, intentionally, knowingly, and recklessly. At page 12 of its brief, however, the Commonwealth asserts only one form of culpable conduct, recklessness. We, therefore, conclude that the Commonwealth has abandoned any theory of intentional or knowing assault and is relying entirely upon the theory of recklessness in the assault cases.

3. SIMPLE ASSAULT CHARGES

As it pertains to the facts elicited in these cases, the Pennsylvania Legislature has defined simple assault as:

“A person is guilty of assault if he:
“(1) recklessly causes bodily injury to another. . . .” 18 Pa.C.S. §2701.

Bodily injury is defined as an impairment of physical condition or substantial pain. 18 Pa.C.S. §2301. The Commonwealth has not shown any impairment of the patients’ physical condition, so it contends there was substantial pain to the residents. “Substantial pain may be inferred from the circumstances surrounding the physical force used, even in the absence of significant injury.” Commonwealth v. Richardson, 431 Pa. Super. 496, 499, 636 A.2d 1195, 1196 (1994) (citing Commonwealth v. Ogin, 373 Pa. Super. 116, 540 A.2d 549 (1988) (enbanc), alloc. denied, 521 Pa. 611, 557 A.2d 343 (1989); see also, Commonwealth v. Jorgenson, 341 Pa. Super. 550, 492 A.2d 2 (1985), rev ’d on other grounds, 512 Pa. 601, 517 A.2d 1287 (1986) (jury may infer that striking a person twice on the face causes pain even without testimony regarding pain). The definition of “bodily injury” is stated generally. As the court in Wertelet, infra, stated, “[although not necessarily controlling, the connotation of bodily injury, a sort of common person understanding of the term, suggests a physical event unlike those commonly occurring in normal life which, although unpleasant and somewhat painful, do not seriously interrupt one’s daily life. Thus, if one cuts oneself shaving the average person does not think that he has suffered an injury even though such an event could be accompanied by some pain and bloodshed. Similarly, if one stubbed a toe or dropped something on it, even though it could elicit a fair amount of pain and might even result in some limping and the ultimate loss of a toenail, one would not think of himself as ‘injured.’ ” Commonwealth v. Wertelet, 696 A.2d 206, 210 (Pa. Super. 1997). That point is also made in Commonwealth v. Kirkwood, infra, which also states “the assault section of the Crimes Code was intended to protect and preserve one’s physical well-being and was not intended to prevent temporary hurts resulting from trivial contacts which are a customary part of modem day living.” Id., 360 Pa. Super. 270, 275, 520 A.2d 451, 454 (1987).

Dr. Stitt is charged with two counts of simple assault. It is alleged in Count 1 that on January 30,1996, he placed five staples in a patient without anesthesia and in Count 2, it is alleged he placed four staples in a patient without anesthesia. The doctor coaxed the patient, offered the patient anesthesia and the patient consented to the procedure but without anesthesia. It is clear the doctor made a judgment that, under the circumstances, he would go ahead without the anesthesia. In all cases, the Commonwealth presented the testimony of James Holliman M.D., who expressed his opinion that placing more than one staple without anesthesia was a gross deviation of the standard of care. (Dr. Stitt, preliminary hearing transcript, testimony of Dr. Holliman, March 30,1999, p. 6 and pp. 34-35.)

Dr. Louka Makkar is charged with two counts of simple assault. It is alleged that on November 26,1995, he placed three staples in a resident without anesthesia and on June 1,1996, he placed four staples without anesthesia. In front of the hearing examiner, it was established that Dr. Makkar placed staples without anesthesia because of this patient’s dramatic jerking which occurred during medical treatment or medical procedures. The one flap injury to be closed was in close proximity to the patient’s eye. Dr. Makkar’ was reluctant to use a needle. The stapling took 20 to 30 seconds. (Hearing officer’s findings, 6 through 15.) The other patient was very combative. In both cases, Dr. Holliman was of the opinion that the conduct of Dr. Makkar in stapling the injuries without anesthesia was a “gross deviation from the standard of care.” (Dr. Hol-liman’s testimony, preliminary hearing, March 30, Commonwealth v. Makkar, p. 5.)

In the case of Dr. Moussa, there are eight counts of simple assault, seven involving charges of stapling without the use of anesthesia. In Count 7, Dr. Moussa administered 11 sutures without anesthesia. In Count 8, he administered three staples without anesthesia and in Counts 1 and 5, he administered four staples without anesthesia. Significantly, the hearing examiner for the State Board of Medicine found that six staples without anesthesia fell below the standard. In the case where Dr. Moussa applied 11 sutures without anesthesia, the testimony before the hearing examiner was that the patient would not consent to anesthesia but Dr. Moussa was able to communicate with the patient. As the patient indicated he did not want the anesthesia, Dr. Moussa then offered the patient a dollar to purchase a sweet roll if the patient would allow the doctor to inject. The patient again refused. Dr. Moussa then offered the patient a dollar if he could close his wound without anesthesia, showing him a needle and the patient agreed. The doctor closed the wound with 11 sutures without anesthesia, the patient cooperated, after which the doctor gave the patient a dollar to buy a sweet roll. The hearing examiner in Dr. Moussa’s case determined that 11 sutures without anesthesia was excessive and violated the standard. The hearing examiner recommended public reprimand. The State Board of Medicine dismissed all charges before the board relating to closing lacerations without anesthetic.

Dr. David Byers is charged in Counts 2 through 9 with inserting four to 15 surgical staples in seven different patients on seven different occasions without anesthesia. Dr. Holliman testified that in each instance placing the staples without local anesthesia was a gross deviation from the standard of care.

Dr. Cesar Miranda, in Counts 4 and 5, is charged with simple assault in placing three surgical staples two times on July 26, 1996, and August 22, 1996, without the use of anesthesia. Dr. Holliman, at pages 5,11 and 12 of the transcript of the March 30, 1999, Dr. Miranda hearing, stated it was his opinion that closing the wound with staples without anesthesia was a gross deviation of the standard of care.

Our reading of the transcripts of the preliminary hearing and the findings and conclusions of the hearing examiner and of the State Board of Medicine causes us to conclude that in the instance of closing the wounds with staples without anesthesia that not one of the defendants was shown to be acting with an intent to hurt the patients. On the contrary, the defendants were attempting to treat the injury and as quickly as possible, close the wound and help alleviate the pain the residents were feeling because of their injuries. The doctors, from the evidence, believed and intended that their actions would help heal the patients and not harm them more.

To find that the defendants acted recklessly, the court must find that they consciously disregarded a substantial or unjustifiable risk that the bodily injury would result from their actions. The risk and nature of their actions must disregard the risk to the level of gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. Pa. Standard Criminal Jury Instructions §15.2071(b). Clearly from the evidence, the physicians did not consciously disregard any risk to the residents. According to the findings of the hearing officer, they weighed the benefits of closing the lacerations quickly, even the Commonwealth’s expert, Dr. Holliman, repeatedly testified that one of the benefits of using staples is that the wounds are more quickly closed. (See Byers’ preliminary hearing, March 30, 1999, testimony of Dr. Holliman, pp. 4 and 20.) Contrasting that is the injection of local anesthesia or the application of a topical anesthesia, where the anesthesia is applied or injected, and then there is a wait while the anesthesia takes effect. In many cases, such as this, the hearing examiner found there were risks attendant to anesthesia, such as sticking a needle near the patient’s eye when the patient has a history of actively resisting treatment. Many of the patients thrashed about even while restrained and the thrashing creates an independent risk of further harm to the patient. Certainly, in some instances, there is a greater risk of harm, such as fractures and dislocations, than the initial injury of a laceration. Also, there was the added risk of injury to the attending staff and to the physician. (See conclusions of hearing examiner, pp. 27 through 34.) We note that the hearing examiner was not persuaded as to Dr. Moussa’s decision to close a wound with 11 sutures without anesthesia. (Conclusion of hearing examiner, pp. 33 and 34.) In two other cases, the hearing examiner concluded that Dr. Moussa inappropriately used staples without anesthesia. The hearing examiner in this case concluded that Dr. Moussa’s errors were errors in judgment but were not made with any disregard of the interests of his patients. Rather, the hearing examiner found that Dr. Moussa, despite these instances, acted with the best interests of his patients in mind. As we noted above, however, the State Board of Medicine instead, concluded that Dr. Moussa’s conduct did adhere to minimum standards of acceptable practice.

We recognize as we discuss these facts, that we are considering some favorable evidence presented from the defendants at the adjudication, by the hearing examiner and State Board of Medicine which would not normally be made available to us in the context of a motion to quash or a habeas corpus petition. We are satisfied, under the circumstances, that the Commonwealth has covered the elements with regard to the offense of simple assault in the suture and staple cases. In each case, Dr. Holliman testified that the closing of wounds without anesthesia was a gross deviation from the accepted standard. Whether the Commonwealth has shown “impairment of physical condition or substantial pain” as required in the definition of bodily injury under section 2301 of the Crimes Code is problematic. It is hard to think of a staple or suture as being an injury. Nevertheless, applying the standards that we must in a motion to quash or habeas corpus petition, Dr. Holliman’s testimony is some credible evidence of recklessness and there is some evidence of substantial pain. The Commonwealth has covered the elements that each of the defendants, by stapling or suturing without anesthesia, caused bodily injury to the victims. Our Superior Court, in the context of a physician treating a patient, has equated recklessness to treatment and conduct by a physician with regard to a patient which is termed irresponsible and totally inappropriate in the circumstances. Commonwealth v. Youngkin, 285 Pa. Super. 417, 427, 427 A.2d 1356, 1361 (1981). Applying Youngkin, the Commonwealth presented a prima facie case.

We are persuaded, however, with regard to the stapling and suture simple assaults charged by the defendants’ assertion of the defense of de minimis under section 312 of the Crimes Code, 18 Pa.C.S. §312.

“(a) General rale. — The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:

“(1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;

“(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or

“(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense.” 18 Pa.CS. §312.

Whether charges should be dismissed as de minimis is directed to the sound discretion of the trial court. Commonwealth v. Eliason, 353 Pa. Super. 321, 509 A.2d 1296 (1986). This judge historically has given deference to the prosecuting attorney (district attorney in most instances; however, in this instance, the attorney general) in deciding which cases to bring into court. In this case, we are satisfied as to all counts, that the Commonwealth has established a prima facie case (that is, covered the elements with some credible proof) and that the district justice appropriately bound these charges over. The Commonwealth’s attorney is charged with assessing cases from the perspective of the public interest, deciding which cases should be prosecuted, whether a case is provable in court, and whether it is in the public interest to proceed with the prosecution. One wonders then why this section even exists since those same concepts ultimately stand behind the de minimis section and the authority of the court to dismiss. This judge has sat in my court room literally dozens of times wondering why a particular case wound up tying up all of the time of the prosecutors, public defenders, the judge, the court room and 12 or 14 perplexed jurors when the case could have, and should have, been resolved by some more efficient means, such as at a district justice level as a summary offense. In this case, this judge has the benefit of reading the findings of the hearing examiner which presents some of the defense theory, the ultimate conclusions of the State Board of Medicine and we have the amicus curiae brief filed by the Pennsylvania Medical Society. PMS repeatedly stressed in its brief:

“PMS is not entering this case to defend the quality of care rendered by the accused physicians. Nor is PMS advocating that a physician should not be held accountable for providing sub-standard care. PMS asserts that the criminal justice system is not the appropriate forum to address honest errors in medical judgment. The appropriate forums for addressing deficient medical care are the civil tort system, the internal and external quality review mechanisms for health care facilities and the disciplinary proceedings by the physician professional licensing boards.” Amicus brief at 2.

While the PMS brief is more specifically directed at the recklessly endangering and the manslaughter charges, PMS contends generally that a physician who is exercising a medical judgment should not be subject to criminal prosecution.

“Every day across the Commonwealth, physicians routinely, consciously disregard a known risk of death or serious bodily injury when treating a seriously injured or gravely ill patient. They disregard such risks simply because they are keenly aware that if they do not take necessary but life-risking measures, they will be subjecting the patient to an even greater risk of death.” Amicus brief at 7.

We certainly respect the logic presented in that brief. Essentially, if a physician can be prosecuted because another physician, using 20/20 hindsight can say it was a gross deviation from the standard of care, while other physicians will say that it is acceptable practice, then such a state of affairs may indeed have a chilling effect on the ability of physicians to take chances in what they believe is to be their best personal and professional judgment. The de minimis provision of the Crimes Code, we conclude, ultimately gives the court the authority, to be used only very circumspectly, to dismiss charges where the harm imposed is not substantially great, where the sanctions that could be imposed by the system are not so substantial and the matter can be dealt with administratively and where the costs of resources devoted to trying the case may be substantial. Commonwealth v. Jackson, 354 Pa. Super. 27, 510 A.2d 1389 (1986). In this case, there has already been a thorough review of the conduct of the physicians by the State Board of Medicine. Sanctions have been imposed where misconduct was found. While inserting the staples and sutures without anesthesia may have been, in the position of the Commonwealth’s expert, a gross deviation from the standard of care, the pain on all accounts was, at most, short-lived. The staples had the immediate effect of closing the wound promptly. The ability of a person to endure pain is singular. The unfortunate situation of these patients is that they are not in a position to give consent to any form of treatment and in many instances, they can act out, irrationally and dangerously. The danger can be to themselves or all those close by. We believe, however, that a significant percentage of any population when afforded an opportunity for a quick resolution of an injury versus a more protracted but safe and less painful resolution of an injury might very well pick the quick resolution. This is an area that is open to rational dispute. We are satisfied the evidence in this case, based upon what we have read from the findings of the hearing examiner, will be the substance of diverse expert opinion. Is it worth the expenditure of resources that these trials will take? There have already been four full days of preliminary hearing and one-half day of argument before this judge. Trials before juries may last weeks. It certainly will cost thousands of dollars, especially if we have to give positive consideration to a change of venue or venire because the case has such a high local profile. This is not a case where the trial court is exercising mercy powers, as our Superior Court surmised in Commonwealth v. Przybyla, 722 A.2d 183, 185 (Pa. Super. 1998) but rather, in our judgment, this case is going to take a lot of valuable court and juror time and very substantial local expense and we gravely doubt the Commonwealth can meet its burden. Our Superior Court has upheld a trial court dismissal of charges as de minimis where the defendants were charged with prison riot, were already serving prison terms, where they have been dealt with administratively and the cost of a jury trial would be substantial. Commonwealth v. Jackson, 354 Pa. Super. 27, 510 A.2d 1389 (1986). The resolution of that case by the trial court closely tracks the considerations in this case. As we discussed above, the physicians in this case have been prosecuted administratively by the State Board of Medicine but were absolved for the stapling. With our crowded court docket, we conclude trying these cases would not be an efficient use of our resources. We contrast these charges with the rapes, robberies, aggravated assaults, homicides, drug cases and DUIs that we are required to address in seemingly ever growing numbers.

We now address specifically the three distinct bases for de minimis dismissal applying section 312. We seriously question whether the Commonwealth, given the state of the evidence and the findings of the State Board of Medicine, can prove that the conduct of the defendants was outside the customary license or tolerance. As to the second basis, taking into consideration that the defendant physicians were confronted with, in all instances, minor emergencies wherein they were expected to, and did, exercise judgment in the interests of their patients, we conclude that in many instances, the risk of greater injury to the patient or to those treating the patient necessitated the quickest resolution. Arguably, the injury inflicted was so trivial as not to warrant the condemnation of conviction. We do not mean to trivialize the plight of persons who are as severely handicapped as the patients in this case, but on the other hand, reading Dr. Holliman’s testimony in all five transcripts, we note that he was not really able to discern to what extent each patient had more pain with the procedure chosen by each defendant. For instance, in the case of M.R., who was a patient of Dr. Moussa’s, she had spastic torticollis, which causes involuntary jerking action. Dr. Holliman acknowledged that restraining such a patient while waiting for the anesthesia to take effect could cause pain and emotional trauma. (Preliminary hearing transcript, March 30, 1999, Dr. Moussa, at pp. 18-19.) The cases also present other extenuations. For instance, some physicians are charged with assault for placing three staples while another is charged with assault for placing 15 staples. Should we draw a distinction for those only charged with three, then why not those only charged with four. The hearing examiner did seem to draw a distinction and found Dr. Moussa below the standard when he administered six staples and 11 sutures but the board concluded this was not below the standard. These differences in medical opinion, we conclude, are extenuating circumstances not envisioned by the legislature when it defined simple assault.

Another extenuating circumstance is the further invasion of privacy of these patients that will be necessitated by the public testimony about their condition, symptoms and reactions. We note that the preliminary hearing transcripts in this case use the patients’ full names. What are their rights not to have their names bandied about in the context of extremely low IQs and distasteful medical conditions? Is this public show really necessary?

For all of the foregoing reasons, we will dismiss all of the counts of simple assault.

4. RECKLESSLY ENDANGERING AND MANSLAUGHTER CHARGES

We turn then, to the two remaining cases which are the charges of recklessly endangering, section 2705 of the Crimes Code, Count 1, brought against Dr. Byers, and recklessly endangering and involuntary manslaughter, section 2504(a) of the Crimes Code, which is Count 3 brought against Dr. Miranda. We note that the Pennsylvania Medical Society, in its brief, vigorously argues against prosecuting the physicians in this case under the charges of recklessly endangering. PMS asserts the criminal justice system is not the appropriate forum to address honest errors in medical judgment. Amicus brief at page 2. The emphasis in the brief is a physician should not be subject to criminal sanctions if they take a chance.

“The line between recklessness and aggressive medical treatment is a fine one and very difficult for a layman to discern.” Amicus brief at 5.

In all three instances, however, where we see the recklessly endangering and manslaughter statutes applied in this case, the focus is not on medical judgment but on failure to treat. In essence, the physician can be accused of abandoning the patient or not taking seriously symptoms which were obviously very serious. In the case of Count 1, as to Dr. Byers, Dr. Simons’ testimony establishes at least a prima facie case that Dr. Byers recklessly failed to treat the pneumonia symptoms of patient R.M. (Dr. Byers’ preliminary hearing transcript, March 22, 1999, Dr. Simons, pp. 64-67.) In the case of Dr. Miranda, there are two instances where he is accused of failing to treat patients. In the case of D.C., the patient was critical and in respiratory distress, cyanotic. Instead of treating the patient with oxygen, IV fluids and transport to an acute care medical facility, Dr. Miranda ordered x-rays. Dr. Simons testified this conduct was grossly negligent and reckless. (Dr. Simons’ preliminary hearing transcript, March 22,1999, at pp. 24-31.) As to patient E.R., who is the subject of Count 2, recklessly endangering and the manslaughter charge, Dr. Simons noted the patient had an 82.4 body temperature early on in his treatment that evening by Dr. Miranda and that such a condition is life threatening hypothermia. (Dr. Miranda’s preliminary hearing transcript, April 26, 1999, Dr. Simons, p. 52.) Nevertheless, Dr. Miranda did not then transfer the patient to an acute care facility. (Dr. Miranda’s preliminary hearing transcript, April 26, 1999, Dr. Simons, p. 29.) Mr. Dickert, an administrator at Polk Center, testified then when he confronted Dr. Miranda about such a low body temperature and inquired why he had not ordered the patient taken to a hospital, Dr. Miranda stated, “Someone with a temperature of 84 or 86 would be dead.” (Dr. Miranda’s preliminary hearing transcript, April 26,1999, Dickert, p. 56.) Dr. Simons characterized Dr. Miranda’s failure to treat as “a gross deviation from the standard of care and I would call that gross negligence and recklessness.” (Dr. Miranda’s preliminary hearing transcript, p. 38.)

Applying the standards for recklessness, as it pertains to physicians, which our Superior Court used in Commonwealth v. Youngkin, 285 Pa. Super. 417, 427 A.2d 1356 (1981), there was substantial evidence of recklessness. We contrast our decision with regard to the assault charges where the physicians were aggressively treating the injury and made judgments whereas in the four counts remaining against Dr. Byers and Dr. Miranda, the physicians were not exercising judgment, were not aggressively treating the symptoms and, in fact, under the Commonwealth’s theory, were ignoring palpably acute medical conditions. The real difference is that the recklessly endangering counts and the involuntary manslaughter involve a failure to treat which, under the circumstances, did cause substantial harm to the patient under the Commonwealth’s theory, whereas in the assault cases, the physician was treating and whatever untoward pain the patient experienced was temporary.

We will deny the motions to quash and for habeas corpus in the case in the recklessly endangering counts brought against Doctors Miranda and Byers and the manslaughter count brought against Dr. Miranda.


author: O’BRIEN, P.J.,

text:
    Claypoole v. Miller

      C.P. of Butler County,
    A.D. no. 98-11157.

      Raymond J. Conlon, for plaintiffs.

      Rebecca N. Mann and Nelson Gaugler, for defendant.
    November 15, 1999
   O’BRIEN, P.J.,

Plaintiffs Elmer and Geraldine Claypoole have filed a petition for leave to file an amended complaint to include a claim for punitive damages.

Plaintiffs Claypoole’s original complaint was a negligence claim seeking compensatory damages for medical expenses, lost wages, pain, suffering and inconven-ience. Plaintiffs Claypoole now seek to amend the complaint to include a claim for punitive damages on the grounds defendant Sallie Elaine Miller’s alleged conduct of falling asleep while operating her automobile constitutes reckless, wanton and outrageous conduct. Plaintiffs Claypoole contend defendant Miller, in her deposition, establishes she was operating her automobile in an unsafe manner when she knew she was physically exhausted. Defendant Miller stated during the deposition she had fallen asleep and had problems operating her automobile twice before falling asleep a third time and colliding with plaintiffs Claypoole’s vehicle.

The Superior Court of Pennsylvania has stated: “[i]t is impossible to fathom how one who falls asleep while operating an automobile, thus blindly propelling thousands of pounds of steel and glass at tens of miles per hour, cannot be guilty of a degree of negligence beyond mere ‘absence of ordinary care.’ ” See Commonwealth v. Cathey, 435 Pa. Super. 162, 166, 645 A.2d 250, 251 (1994).

The Superior Court goes on to characterize driving an automobile and falling asleep, thereby posing a menace to other drivers, as reckless driving and demonstrates a careless disregard for the safety of persons and property. See id. at 167-68, 645 A.2d at 251-52.

In the present case, defendant Miller states she knew she was having problems staying awake while operating her automobile. In fact defendant Miller explains she stopped her vehicle twice prior to the accident and attempted to wake herself up. Knowing that she was falling asleep or having trouble staying awake, defendant Miller continued to operate her automobile until she finally allegedly fell asleep and collided with plaintiffs Claypoole’s automobile.

The court finds a jury could reasonably interpret defendant Miller’s actions of operating a vehicle when she knew she was having trouble staying awake as reckless, wanton and outrageous conduct. Therefore, the court concludes plaintiffs Claypoole, after discovering additional facts and information from defendant Miller during her deposition, should have the opportunity to amend their complaint to include a claim for punitive damages.

ORDER

And now, November 15, 1999, the court hereby orders plaintiffs Claypoole’s petition for leave to file an amended complaint is granted.