author: ACKERMAN, J.,

text:
    Lawler v. Stefanyszyn

      James J. McHugh Jr., for plaintiffs.

      Edwin G. Scherlis, for defendants.
    October 21, 1998
   ACKERMAN, J.,

After a nine-day jury trial, that jury rendered a verdict in favor of the plaintiff, Taylor Lawler, a minor, and against the defendant, Mary Stefanyszyn M.D., in the sum of $1,250,000 (verdict molded by this court to include that sum of $1,250,000 in favor of plaintiff, Taylor Lawler, a minor, against defendant, Annesley, Flanagan, Fischer, Stefanyszyn and Associates, and further molded by addition of delay damages, not contested, for an additional $143,767.12 and a total molded verdict of $1,393,767.12. A punitive damage claim was rejected by the jury, and parent-plaintiff’s claim in their own right was dismissed).

Defendants, Mary Stefanyszyn M.D. and Annesley, Flanagan, Fischer, Stefanyszyn and Associates, filed post-trial motions in the nature of a motion for new trial and in the alternative the granting of a remittitur based upon the alleged excessiveness of the verdict.

After review of the post-trial motions filed by the said defendants, plaintiff’s brief in opposition thereto, argument and hearing, this court denied all post-trial motions, molded the jury verdict as noted above, and entered judgment on the molded verdict.

Defendants filed the instant notice of appeal.

At the age of 5, Taylor Lawler was discovered to have a cancerous tumor behind her right eye, for which she underwent chemotherapy and radiation. N.T. 5-13-98 pp. 109-110. The treatment was successful in eradicating the tumor. N.T. 5-13-98 p. 110; 5-15-98 p. 37. However, the radiation destroyed the functional vision of her right eye and retarded bond development on the right side of her face. N.T. 5-13-98 pp. 110-11, 179; 5-15-98 pp. 37, 39.

When Taylor was 11 years old, the defendant, Dr. Stefanyszyn, recommended that Taylor’s right eye be removed and replaced with an implant. N.T. 5-14-98 pp. 152-54; 5-15-98 p. 40. She advised Taylor and her parents that an implant would allow the two eyes to move together and give Taylor a normal appearance. N.T. 5-14-98 pp. 154-55; 5-15-98 pp. 40-42, 45-46.

A nonsurgical alternative to the evisceration and implant would have been a scleral shell. N.T. 5-13-98 pp. 91-93, 97-98, 101-104, 148; 5-14-98 p. 107. That would have been akin to a hard contact lens, with an eye painted on it, which Taylor would have been able to insert by herself. Id. Assuming the shell was successful, the multiple surgeries to remove Taylor’s right eye and insert and cover the implant would not have been necessary. N.T. 5-13-98 p. 104.

Dr. Stefanyszyn never advised the Lawlers that a nonsurgical alternative existed. N.T. 5-13-98 pp. 90, 148, 150-51; 5-14-98 p. 171. She also failed to tell them that an implant could not succeed without an adequate blood supply and, because the supply of blood to Taylor’s right eye had been seriously compromised by the radiation treatments, an arterial transplant was required before an implant should be attempted or the grafts were likely to fail. N.T. 5-13-98 pp. 119-20,122-27; 5-14-98 pp. 143, 171; 5-15-98 pp. 42-49. She never warned them that graft failure was a risk of the procedure. N.T. 5-13-98 pp. 122-26; 5-14-98 p. 171; 5-15-98 pp. 48-49. She also failed to tell them that the implant would not succeed in producing a normal appearance because the movement of Taylor’s right eye was severely impaired. N.T. 5-13-98 pp. 90, 113-17, 119-20. Lastly, Dr. Stefanyszyn told them that Taylor would require three or four operations and never warned them that eight, 10 or even 20 operations might actually be required. N.T. 5-14-98 pp. 128, 156, 168; 5-15-98 pp. 45-47, 64-65; 5-19-98 pp. 112-13, 115.

On December 4, 1991, Dr. Stefanyszyn eviscerated Taylor’s right eye and inserted an implant, which she covered with grafts taken from inside Taylor’s mouth. N.T. 5-13-98 pp. 96, 128-30; 5-14-98 p. 167; 5-15-98 pp. 40-41. The grafts failed, due to the lack of an adequate blood supply, and the implant was exposed. N.T. 5-13-98 pp. 130-31; 5-14-98 p. 158; 5-15-98 pp. 48-51. On December 21,1991, Dr. Stefanyszyn was compelled to operate on Taylor again to repair the situation. N.T. 5-13-98 pp. 130-38; 5-15-98 pp. 50-51.

Without an arterial transplant, this process continued to repeat itself. By February of 1992, the grafts had died again, exposing the implant. N.T. 5-13-98 pp. 139-40; 5-15-98 pp. 51-52. On May 11, 1992, Dr. Stefanyszyn operated on Taylor again. N.T. 5-13-98 pp. 139-43; 5-15-98 p. 52. By June, the implant was exposed again. N.T. 5-13-98 pp. 143-44; 5-15-98 p. 152. On August 26, 1992, Dr. Stefanyszyn operated on Taylor again. N.T. 5-13-98 pp. 143-48; 5-15-98 p. 52. By September, the implant was exposed again. N.T. 5-13-98 pp. 155-56; 5-15-98 p. 54.

Dr. Stefanyszyn referred Taylor to Dr. Bartlett, a pediatric plastic and reconstructive surgeon. N.T. 5-13-98 p. 158; 5-15-98 pp. 54,104-105. On February 28,1994, Dr. Bartlett performed an arterial transfer, as well as surgery to reconstruct her right eyesocket, forehead and temple. N.T. 5-15-98 pp. 55, 110, 116-17.

It was undisputed that his surgery was successful. N.T. 5-15-98 pp. 117-18 (testimony of Dr. Bartlett); N.T. 5-19-98 pp. 81, 86 (testimony of Dr. Stefanyszyn). However, in harvesting bone from the left side of Taylor’s face (for use in the reconstruction of the right side of her face), Dr. Bartlett left behind two sponges. N.T. 5-15-98 pp. 119-20, 151. These sponges caused Taylor to develop an infection in her left temple, which was resolved when another surgeon removed the sponges fourmonths later. N.T. 5-15-98 pp. 151,157-58; 5-19-98 pp. 86-87.

Taylor had three additional operations after that. N.T. 5-15-98 p. 55. The operations finally stopped when the Lawlers learned from Dr. Iliff that no matter how many operations Taylor had, they could never give her a pleasing appearance. N.T. 5-14-98 p. 60.

The plaintiffs subsequently brought this action. They alleged that Dr. Stefanyszyn was negligent in failing to attempt a nonsurgical alternative prior to removing Taylor’s right eye and in performing multiple surgeries upon her right eyesocket without first ensuring that there was an adequate blood supply. They further alleged that Dr. Stefanyszyn had failed to warn them of the risks of the surgeries she performed, including the risk of graft failure, the likelihood that the implant would not succeed without an adequate blood supply and because the ability of Taylor’s right eye to move was severely impaired and that eight or 10 operations or more might be necessary.

Separate allegations of negligence were set forth with respect to Dr. Bartlett. The plaintiffs alleged that he was negligent in leaving the two sponges in Taylor’s left forehead and that his negligence had caused her to suffer an infection there and necessitated an additional procedure by a third physician to remove the sponges.

The plaintiffs settled with Dr. Bartlett shortly before trial. This settlement was not on a joint tort-feasor basis. N.T. 5-12-98 p. 2. Dr. Bartlett made no effort to preserve any right to assert a claim for contribution or indemnity from Dr. Stefanyszyn (id.) and Dr. Stefanyszyn did not attempt to plead a cross-claim against Dr. Bartlett.

At the conclusion of trial, the parties agreed that the jury would be instructed that Dr. Stefanyszyn could not be held responsible for the subsequent injuries caused by Dr. Barlett. N.T. 5-20-98 pp. 2-3. This court stated:

“It is my understanding that, Mr. Scherlis, you indicated to the court that I did not have to charge the jury or talk about Doctor Bartlett’s negligence in apportioning responsibility as long as they would be charged that they cannot attribute any injuries that the plaintiff sustained as a result of Doctor Bartlett’s operation, to wit, the infections that the plaintiff sustained because of the leaving of the two sponges in the face area of the plaintiff during surgery, as long as the jury [is] properly instructed in that regard.” N.T. 5-20-98 pp. 2-3.

On N.T. 5-20-98 p. 4, counsel for defendants, Mr. Scherlis, stated, “That’s fine, your honor.”

Defense counsel told the jury during his closing argument that Dr. Bartlett’s surgery had nothing to do with the operations performed by Dr. Stefanyszyn:

“Doctor Barlett’s surgery was necessary although it didn’t have anything to do with what Mary Stefanyszyn did or didn’t do.” N.T. 5-20-98 p. 90. (emphasis added)

Thereafter, the court instructed the jury, as agreed (see supra, and N.T. 5-19-98 pp. 146-49, both inclusive), that Dr. Stefanyszyn could not be held responsible for the injuries caused by Dr. Bartlett:

“Also I wanted you to understand that in determining damages in this case, you are not to attribute the injuries the plaintiff received as a result of Doctor Bartlett’s surgery. If you recall, the plaintiff had an infection. The infection was caused by leaving two sponges in the plaintiff at the time of Doctor Bartlett’s surgery. These injuries that she experienced as a result of Doctor Bartlett’s surgical process are in no way to be attributed to the defendant in this case and may not be utilized by you in determining the amount of damages that the plaintiff has sustained for which the defendant in this case, Doctor Stefanyszyn, is liable. That is, of course, only if you get to damages in this case.” N.T. 5-20-98 pp. 173-74.

This instruction removed any basis for Dr. Stefanyszyn to assert a claim for contribution or indemnity. It clearly advised the jury that the only injuries for which it could hold Dr. Stefanyszyn liable were those she had caused Taylor to suffer.

On post-trial motion, defendants argue that this court erred by failing to keep defendant Bartlett in the case and by not allowing counsel for defendant to examine witnesses regarding the allegations of the complaint against the dismissed defendants.

The defendants, by their express agreement made freely and voluntarily with counsel for the plaintiff and this court (supra) that the jury would be instructed that it could not assess damages against those defendants for the harm caused by Dr. Bartlett, expressly and effectively waived all claims asserted in its post-trial motion relating to the dismissed defendant, Dr. Bartlett, including any alleged error relating to claims by the only other dismissed defendants, CHOP and Children’s Surgical Associates, against Dr. Bartlett. The only reason asserted by defendants, Stefanyszyn M.D. and Annesley, Flanagan, Fischer, Stefanyszyn and Associates, for alleged error by this court in failing to keep defendants, CHOP and Children’s Surgical Associates, in the case was the inability to introduce those dismissed defendants’ allegations against defendant Bartlett, that assertion has also been waived for the same reason.

Next, defendants argue that this court committed error by admitting out of court remarks by a Dr. Iliff that were hearsay and highly prejudicial to Dr. Stefanyszyn.

This court believes that it acted within its discretion in permitting the plaintiffs to cross-examine Dr. John D. Bullock, Dr. Stefanyszyn’s expert witness, with a report Bullock had reviewed and identified in his own report.

On direct examination, defense counsel presented Dr. Bullock with a hypothetical question which asked him to assume that “¿though additional procedures were necessary,” Taylor’s prognosis for “a good cosmetic effect” was “good.” N.T. 5-14-98 p. 56. Relying upon that assumption, Dr. Bullock testified that Dr. Stefanyszyn’s treatment of Taylor did not fall below the standard of care. N.T. 5-14-98 pp. 56-82. It is clear that the defense wanted the jury to infer from Dr. Bullock’s testimony that Dr. Stefanyszyn had chosen a course of treatment which had a good likelihood of achieving a pleasing cosmetic result and that, with a few additional procedures, this result could still be achieved.

On cross-examination, the plaintiff attempted to refute that inference. Dr. Bullock testified that his opinions were “all based on the hypothetical question,” as well as “my review of the records,” among other matters. N.T. 5-14-98 p. 86. Those “records” included a letter Dr. Iliff wrote the plaintiffs following his examination of Taylor. N.T. 5-14-98 p. 119. Indeed, Dr. Bullock specifically stated in his report that he had reviewed this letter. N.T. 5-14-98 p. 120.

Dr. Tliff recommended against further surgery. N.T. 5-14-98 p. 124. He explained in his report that “she still would have immobile lids with no blink or prosthesis motion” (N.T. 5-14-98 p. 122) and that the “ultimate result... would continue to be a disappointment for her and her family.” N.T. 5-14-98 p. 124.

Dr. Bullock reluctantly acknowledged that this was so. He admitted that any motion of Taylor’s eyelids would be “restricted” at best. N.T. 5-14-98 p. 122. While he disagreed with Dr. Iliff’s recommendation to forego further surgery (N.T. 5-14-98 p. 124), he acknowledged that Dr. Iliff was correct that Taylor “would need several operations to achieve any significant improvement” (N.T. 5-14-98 p. 122) and that she and her family would still find the ultimate result disappointing. N.T. 5-14-98 p. 124.

The plaintiff’s use of Dr. Iliff’s report was a legitimate attempt to diminish the impact of direct examination and, as such, entirely proper. Accordingly, defendants’ claim that this court abused its discretion in allowing the plaintiff to so use Dr. Iliff’s report is meritless.

The authorities offered by the defendants are inapposite to the instant case which involves the issue of proper cross-examination.

The defendants next claim that this court failed to properly instruct the jury with regard to informed consent.

Dr. Stefanyszyn asserts that this court was required to instruct the jury in accordance with the Medical Malpractice Act of 1996, P.L. 776, no. 135, §10, 40 P.S. §1301.811-A(d). That provision was an attempt by the legislature to change the substantive law of this Commonwealth and override Gouse v. Cassel, 385 Pa. Super. 521, 561 A.2d 797 (1989), aff’d, 532 Pa. 197, 615 A.2d 331 (1992), by requiring a patient to prove that the undisclosed information would have been a substantial factor in her decision whether to undergo surgery. It provides:

“A physician is liable for failure to obtain the informed consent only if the patient proves that receiving such information would have been a substantial factor in the patient’s decision whether to undergo a procedure set forth in subsection (a).”

According to Dr. Stefanyszyn, this court was required to apply the statute retrospectively to a cause of action which arose years before the statute came into effect. She does not cite any supporting authority for this proposition, however.

No such authority exists. The Statutory Construction Act of 1972, P.L. 1339, no. 290, §3, 1 Pa.C.S. §1926 specifically provides that statutes shall not be construed to apply retroactively absent clear language to the contrary:

“No statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” This provision has been construed to apply to substantive rights. Misitis v. Steel City Piping Co., 441 Pa. 339, 272 A.2d 883 (1971).

The Medical Malpractice Act does not state that the statute shall apply retroactively, and Dr. Stefanyszyn does not contend otherwise. It also cannot be disputed that the amendment relied upon by the defendant is substantive in nature. It imposes a new legal burden on the plaintiff, which did not exist at common law, to demonstrate causation. See Gouse.

Because the amendment implicates the plaintiff’s substantive right to recovery, this court properly declined to give it retroactive effect. This court correctly held that the controlling law with respect to this case is that which was in effect when the plaintiff’s cause of action arose. Bell v. Koppers Co. Inc., 481 Pa. 454, 458, 392 A.2d 1380, 1382 (1978) (“when substantive rights are involved, the applicable law must be that which is in effect at the time the cause of action arises;” statutes “altering substantive rights” will not be given retroactive effect) See also, Lykins v. W.C.A.B. (New Castle Foundry), 552 Pa. 1, 713 A.2d 77, 79 (1998) (Nigro, J. concurring). (“The Statutory Construction Act provides that when substantive rights are involved, the law in effect at the time the cause of action arises controls.”)

Not only was this court’s ruling correct, but any error would not entitle the defendant to a new trial. The challenged instruction pertained solely to the issue of informed consent. However, the jury separately determined that the plaintiffs were entitled to recover based upon Dr. Stefanyszyn’s professional negligence. This finding was amply supported by the evidence. Accordingly, the outcome of the trial would have been the same and a new trial should not be ordered. Walsh v. Kubiak, 443 Pa. Super. 284, 296, 661 A.2d 416, 421-22 (1995), appeal denied, 543 Pa. 716, 672 A.2d 309 (1996) (error with respect to evidentiary ruling affecting one theory of liability did not support new trial where jury also found for plaintiff on a separate theory of liability).

The defendant’s complaint with regard to the other statutory provision is also without merit. Dr. Stefanyszyn contends that the court should have charged the jury on the following provision from the Medical Malpractice Act of 1996:

“The physician is entitled to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide.” 40 PS. §1301.811-A(b).

This amendment, too, was intended to effect a change in the substantive law of this Commonwealth. At common law, expert opinion concerning the standard of disclosure in the medical community was inadmissible. Clemons v. Tranovich, 403 Pa. Super. 427, 431, 589 A.2d 260, 262 (1991), appeal denied, 530 Pa. 630, 606 A.2d 900 (1992). Because the amendment changes substantive law and impacts on the plaintiffs’ legal entitlement to relief and the legislature did not provide that it should be applied retroactively, this court correctly declined to give it retroactive effect. Bell

The defendants further claim that this court erred by instructing the jury that doctors are subject to a dual standard of conduct.

Dr. Stefanyszyn objects to “the court’s introducing the ordinary care standard” and describing the standard of care imposed upon physicians as “dual.” Defendant’s brief p. 13. At the same time, she acknowledges “that juries are normally instructed that a doctor must have the same knowledge and skill and exercise the care exercised in the profession and must also exercise the care of a reasonable person, as this court instructed the jury.”

The fact is that there is a dual standard of care and that ordinary care is one of the two standards. A plaintiff in a medical malpractice action is obligated to prove either that the defendant failed to employ the skill and knowledge required of a medical professional or the care and judgment of a reasonable person:

“[T]he burden of proof is upon the plaintiff to prove either (1) that the physician did not possess and employ the required skill or knowledge or (2) that he did not exercise the care and judgment of a reasonable man in like circumstances . . . .” Smith v. Yohe, 412 Pa. 94, 99, 194 A.2d 167, 170 (1963). Accord Grubb v. Albert Einstein Medical Center, 255 Pa. Super. 381, 391, 387 A.2d 480, 485 (1978) (“The plaintiff in a malpractice action must prove either that (1) the physician did not possess and employ the required skill and knowledge, or (2) that he did not exercise the care and judgment of a reasonable man in like [circumstances]”); Ragan v. Steen, 229 Pa. Super. 515, 521, 331 A.2d 724, 727-28 (1974) (the plaintiff “must prove either that the physician did not possess or employ the skill and knowledge required to effect a cure, or that he did not exercise the care and judgment of a reasonable man under like circumstances”).

Thus, there is no error in this regard.

Finally, defendants assert that the verdict was excessive and required either a new trial or, alternatively, a grant of remittitur.

The verdict rendered by this jury did not shock the conscience of this court.

The plaintiffs introduced substantial evidence that Taylor Lawler endured multiple unnecessary and permanently disfiguring operations that turned her into an object of derision and substantially impaired her adolescence. These injuries were manifested by objective physical evidence: the medical records documenting all the surgeries she endured and the photographs showing the worsening of her appearance.

The jury was not swept away by passion or prejudice. It took the jury a day and a half to reach its verdict. N.T. 5-21-98; 5-22-98. Furthermore, although the jury was given the opportunity to assess punitive damages, it declined to do so. N.T. 5-22-98 p. 36. Under these circumstances, it is clear that the jury acted with due deliberation and there is no basis for interfering with the jury’s award.

There is no merit in any of defendants’ post-trial motions.

      . The right of recovery is a substantive right which is implicated when the retroactive application of a statute would impose a new legal burden on a past transaction or occurrence. McMahon v. McMahon, 417 Pa. Super. 592, 601, 612 A.2d 1360, 1364 (1992). In contrast a procedural statute merely establishes a method for enforcing rights but has no impact on the claimant’s legal entitlement to relief. Page’s Department Store v. Velardi, 464 Pa. 276, 283 n.5, 346 A.2d 556, 560 n.5 (1975).


source: Caselaw Access Project

license: Public Domain

text:
    McVicker v. McVicker
    C.P. of Fayette County,
    no. 425 of 1996, G.D.

      Nicholas E. Timperio Jr., for plaintiff.

      Benita J. Sumey, for defendant.
    November 9, 1998
   SOLOMON,J.,

Before the court is the motion of the plaintiff seeking a determination that the parties have lived separate and apart for a period in excess of two years. The motion was prompted by the counter-affidavit of the defendant, alleging that the parties had not been separated for a period of two years.

At the hearing on the motion, the plaintiff testified that he separated from the defendant on October 26, 1995, when he left the marital residence. Initially, he lived with a friend for about one year and then moved in with his parents. Other than several brief occasions when he resided at the home of a paramour, he has continued to reside with his parents. Since October 26, 1995, other than to visit, he has not lived in the marital residence. He further testified that the parties have had sexual relations once, that occurring early in 1996. The plaintiff’s mother corroborated his testimony as to where the plaintiff has resided since he separated from the defendant.

In support of her contention that the parties have not been separated for two years, the defendant testified that although the plaintiff left the marital residence on October 21, 1995 (not October 26, 1995), the parties maintained a sexual relationship from February 1997 until June 1997, and from November 26, 1997 through January 1998. According to her, after they had engaged in sexual intercourse, the defendant would remain for several hours and then return to his residence. Further, on a number of occasions, she advised the plaintiff that, unlike him, she wanted more to their relationship than sex. No other witnesses were offered.

From the testimony, we conclude that the plaintiff has proven by a preponderance of the evidence that he and the defendant have lived separate and apart in excess of two years, and that they did engage in an act of sexual intercourse early in 1996. Nonetheless, we will address the issue raised by the defendant, to-wit: that the parties engaged in sexual relations within the two-year period.

The Divorce Code defines “separate and apart” as the “complete cessation of any and all cohabitation, whether living in the same residence or not.” 23 Pa.C.S. §3103. Although the term “cohabitation” is not defined in the Code, our Superior Court has stated that cohabitation means “the mutual assumption of those rights and duties attendant to the relationship of husband and wife.” Thomas v. Thomas, 335 Pa. Super. 41, 47, 483 A.2d 945, 948 (1984); Gordon v. Gordon, 436 Pa. Super. 126, 647 A.2d 530 (1994). Webster’s New Collegiate dictionary defines cohabitation as “living together as husband and wife.” Similarly, Ballantine’s Law Dictionary defines cohabitation as “[a] dwelling together of man and woman in the same place in the manner of husband and wife.” The definitions are appropriate for our purpose and are followed pursuant to the mandate of the Statutory Construction Act. 1 Pa.C.S. §1903.

Hence, cohabitation requires two persons of the opposite sex to reside together in the manner of husband and wife, mutually assuming those rights and duties usually attendant upon the marriage relationship. Cohabitation may be shown by evidence of financial, social and sexual interdependence, by a sharing of the same residence, and by other means. See Flynn v. Flynn, 341 Pa. Super. 76, 491 A.2d 156 (1985); Mackey v. Mackey, 376 Pa. Super. 146, 545 A.2d 362 (1988); Britton v. Britton, 400 Pa. Super. 43, 582 A.2d 1335 (1990); Gordon, supra.

However, “instances of sexual relations during a separation period do not, without more, defeat a claim that the parties have lived separate and apart” in excess of two years. Thomas, 335 Pa. Super, at 47, 483 A.2d at 948; see also, Flynn, supra; Gordon, supra. “The ties that bind two individuals in a marital relationship involve more than sexual intercourse.” Thomas, 335 Pa. Super. at 47, 483 A.2d at 948. Even bona fide efforts to achieve reconciliation prior to divorce, including, temporarily, sleeping in the same bedroom and resuming sexual relations, do not interrupt a period of living separate and apart. Thomas, supra.

It is clear from the case law that cohabitation involves more than just sexual relations and remaining at someone’s house overnight. Thus, even had we found the defendant to be the more credible witness, the plaintiff must still prevail.


author: SURRICK, J.,

text:
    Import Products Co. Inc. v. Group RL Inc.

      C.P. of Delaware County,
    no. 95-52216.

      Howard S. Klein, for plaintiff.

      Matthew Hanna, for defendants.
    December 30, 1998
   SURRICK, J.,

On August 18, 1995, plaintiff filed a complaint against defendants alleging that plaintiff had delivered goods worth $17,171.19 to defendants, that defendants had received and accepted these goods and that defendants had failed and refused to pay for the goods. A non-jury trial was held on January 16, 1998. At the conclusion of the trial this court found in favor of plaintiff and awarded damages in the total amount of $17,191.19. A post-trial motion was timely filed. After review of briefs submitted by counsel and oral argument defendant’s motion was denied. The instant appeal followed thus necessitating this opinion.

At the beginning of the trial, counsel for plaintiff and counsel for defendant Roger B. Henderson advised the court that the case was proceeding to trial only against defendant Roger B. Henderson, individually and trading as Partners Automotive Parts Network. Counsel for plaintiff advised that defendant Lawrence Laken was in bankruptcy, that defendant Group RL Inc. was a defunct corporation and that plaintiff was not pursuing its claim against them. (N.T. 4.) Counsel for Henderson advised the court that it was Henderson’s position that this debt ($17,191.19) was a corporate debt and that Henderson could not be found personally liable for it. The existence of the debt is not disputed. (N.T. 5.)

FACTS

Plaintiff Import Products Co. Inc. is a Massachusetts corporation with offices in Bridgewater, Massachusetts. Plaintiff is in the business of importing and distributing automotive products. (N.T. 6-7.) Defendant Group RL Inc. is a Pennsylvania corporation. The sole shareholder in Group RL Inc. is Roger B. Henderson. (N.T. 26.) Defendant Partners Automotive Parts Network is a fictitious name registered pursuant to the laws of the Commonwealth of Pennsylvania and duly certified by the secretary of the Commonwealth. The fictitious name registration indicates that the two entities interested in Partners Automotive Parts Network are the corporation, Group RL Inc., and the individual, Roger B. Henderson. (N.T. 12, exhibit P-2.) Defendant Henderson prepared and recorded the fictitious name registration in July of 1994. He signed it both in his individual capacity and as corporate representative of Group RL Inc. Henderson is a college graduate with a degree in economics who is presently engaged in the insurance business. At one time he owned a jewelry business which he sold. (N.T. 36.)

In February of 1995, Heidi Romanow was credit and customer service manager for plaintiff Import Products. Sometime before February 15, 1995, Ms. Romanow received a call from defendant Laken, who advised that he had seen plaintiff’s company at a trade show and that defendants were interested in buying auto parts from plaintiff. Ms. Romanow sent defendants a credit application. (N.T. 6-8.) The credit application was filled out and signed by defendant Henderson and returned to plaintiff. The completed application was dated February 15, 1995 and it was signed by Henderson as “partner.” The application indicated that the name of the business which was seeking credit was “Group RL Inc. t/a Partners Auto Parts,” and that Roger B. Henderson was the “owner” of the business. Henderson’s designation of himself as “partner” was written above the line entitled “position held with company.” (Exhibit P-1.)

After receiving the completed application, Ms. Romanow checked the credit references provided by Henderson. Because the credit references were “shaky,” Ms. Romanow decided to ask both Laken and Henderson for personal guarantees. Laken returned the guarantee. Henderson did not. (N.T. 11-12.) When Ms. Romanow called Henderson about the guarantee, Henderson pointed out to her that he had signed the credit application as partner, that he was the owner of the company and that he had a good business reputation. Henderson told her that the bill would be paid and that “you have my guarantee.” (N.T. 15, 19-21.) Although Ms. Romanow knew that Group RL Inc. was a corporation, because Henderson had signed the credit application as a “partner” in the business enterprise Group RL Inc. t/a Partners Automotive Parts Network, and because he represented to her that he was a partner in that business and told her that he guaranteed payment, Ms. Romanow approved the application. (N.T. 11, 15, 20-21.)

Subsequently, based upon the credit application and the representation made by Henderson, plaintiff shipped in excess of $17,000 worth of automotive parts to defendants. Plaintiff has received only one payment from defendants. That payment was a $500 check drawn on the account of Group RL Inc. t/a Partners Automotive Parts and signed by Roger B. Henderson. (N.T. 11-12, 22.)

In his post-trial motion, Henderson alleges that the verdict was against the weight of the evidence and against the law. He contends that he cannot be personally liable for this debt because it was a corporate debt for which there can be no personal liability. We disagree.

DISCUSSION

In a bench trial it is the duty of the judge to determine the credibility of the witnesses and the weight to be given their testimony. The court’s findings in this regard will not be disturbed absent an abuse of discretion. Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 556 A.2d 819 (1989). The standard of review in a non-jury trial was discussed in the case of Olmo v. Matos, 439 Pa. Super. 1, 5-6, 653 A.2d 1, 3 (1994) as follows:

The reviewing court must determine “whether the findings of the trial court are supported by competent evidence and whether the trial judge committed error in the application of the law. [Additionally,] findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed absent an error of law or an abuse of discretion.”

Moreover in the case of Brenna v. Nationwide Insurance Company, 294 Pa. Super. 564, 567-68, 440 A.2d 609, 611 (1982), the Superior Court said: “[i]t is also clear that in reviewing the findings of the trial judge, the victorious party is entitled to have the evidence viewed in the light most favorable to him and all the evidence and proper inferences favorable to the successful party must be taken as true and all unfavorable inferences rejected.”

Initially, we would observe that we reject defendant’s argument that he did not represent himself to plaintiff as anything other than a corporate officer. Clearly, Henderson did represent himself to plaintiff as something other than a corporate officer. He represented himself as a “partner” in a business entity called Group RL Inc. t/a Partners Auto Parts Network.

Section 8328 of the Uniform Partnership Act entitled Partner by Estoppel provides in pertinent part:

“(1) When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to the person to whom the representation has been made who has, on the faith of the representation, given credit to the actual or apparent partnership, and if he has made the representation or consented to its being made in a public manner he is liable to that person, whether the representation has or has not been made or communicated to the person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made.”

In the case of O’Brien v. Gere Engineering Inc. v. Taleghani, 525 F. Supp. 750 (1981), the Federal District Court for the Eastern District of Pennsylvania applied Pennsylvania’s partnership by estoppel provision in finding that defendant was personally liable as a partner by estoppel in a situation where defendant claimed that no partnership in fact existed. In so holding the court stated:

“Thus, under Pennsylvania law, the elements of partnership by estoppel are (1) a representation to a third party that one is a partner; (2) reliance upon that representation by the third party to whom it was made and (3) the extension of credit by such party on reliance upon the representation.”

In the case of Lazarus v. Goodman, 412 Pa. 442, 445-46, 195 A.2d 90 (1963), our Superior Court discussed partnership by estoppel as follows: between the parties, but upon the principles of general policy to prevent fraud.”

“One may have partnership obligations imposed upon himself by estoppel. This occurs when one holds himself out, or knowingly permits himself to be held out, as a partner in a particular firm. . . . Estoppel is based upon the principle that if a man holds himself out, either actively or passively, or permits himself to be held out as a member of a partnership, and so induces third parties to deal with the firm and extend credit upon the belief that the party estopped was a member thereof, and upon credit of this party, when otherwise they would not have so dealt, he should not then be allowed to deny his apparent connection with the partnership, and so escape liability . . . [T]he parties are liable to one induced thereby to give credit, the ground of such liability not being under direct representations

In the instant case, we are satisfied that defendant Henderson is personally liable to plaintiffs as a partner by estoppel. Henderson actively represented to plaintiff that he was a partner in the business entity Group RL Inc. t/a Partners Auto Parts. He signed the credit application indicating that he was a “partner.” And he told plaintiff’s representative that he had signed as a partner when asked as to why he had not signed the guarantee that had been sent to him. In addition, Partners Automotive Parts Network is a fictitious name registered by Henderson with the Commonwealth of Pennsylvania. Two legal entities have an interest in Partners Automotive Parts Network, Roger B. Henderson, the individual, and Group RL Inc., the corporation. The very name Partners Automotive Parts connotes the existence of a partnership. We do not believe that it can reasonably be argued that Henderson did not represent himself to plaintiff as a partner in what certainly appeared to be a partnership.

We are also satisfied that plaintiff relied upon Henderson’s representation that he was a partner. Plaintiff’s representative testified that she did, in fact, rely on these representations. She relied on both the written representations on the credit application and the verbal representation that he was a partner and that the bill would be paid. We accept as credible the testimony of plaintiff’s representative in this regard.

Finally, plaintiff extended credit to defendants based upon these representations. More than $17,000 worth of goods were shipped to the business entity Group RL Inc. t/a Partners Automotive Parts Network based upon Henderson’s representation.

Under the circumstances, we are compelled to conclude that Henderson is a partner by estoppel. Whether a formal partnership in fact exists here is not controlling. Nor is it of significance that the apparent partnership included Group RL Inc. What is important is that Henderson did not represent himself to plaintiff as corporate officer. Rather, he created the impression that he was a partner in an existing partnership. Plaintiff extended credit on that basis.

For these reasons we concluded that Henderson was personally liable for this debt as a partner by estoppel. To conclude otherwise would encourage, not discourage, fraud.

      . Defendant Roger B. Henderson was the only defendant present and represented at trial.

      . Henderson testified that defendant Lawrence Laken also had an interest in the Group RL Inc., but his name did not appear on any corporate documents, because at the time that the corporation was formed, Laken was in the midst of a divorce. (N.T. 25-27.)

      . 15 Pa.C.S. §8301 et seq.

      . See also, Bing v. Schmitt, 226 Pa. 622, 75 A. 854 (1910) (it makes no difference whether or not there is a partnership in fact if defendants represented themselves as partners to plaintiff and thereby obtained their goods, they are liable).

      . The court in O ’Brien was dealing with the partnership by estoppel provision found in 59 Pa.C.S. §328(a)(l). The above recited provision, 15 Pa.C.S. §8328, is a reenactment of section 328(a)(1).

      . Lazarus dealt with 59 P.S. §38, statutory provision that predated 15 Pa.C.S. §328.


text:
    Whitehill v. Matthews

      C.P. of Delaware County,
    no. 94-13794.

      Gustine J. Pettagatti, for plaintiff.

      Daniel J. Sherry, for defendant.
    June 25, 1998
   SURRICK, J.,

In March of 1993, plaintiff’s decedent, Joann G. Palumbo, was 53 years old and she had been a patient of defendant, Ronald B. Anderson M.D., for 10 years. Dr. Anderson is a family physician. He was treating plaintiff’s decedent for a multitude of physical problems and depression. Plaintiff’s decedent had been taking prednisone, a steroid, for treatment of arthritis for approximately 17 years, the last 10 years of which Dr. Anderson had prescribed the drug. One of the possible side effects of long-term steroid use is the development of ulcers. Dr. Anderson had also prescribed the drug Toradol, a non-steroid, anti-inflammatory pain medication, for use by plaintiff. Toradol should not be used by patients who have a propensity for ulcers and gastritis.

On March 1, 1993, plaintiff’s decedent had an office visit with Dr. Anderson. She was complaining of back pain and had slight abdominal distention. Dr. Anderson noted that at that time, Toradol was helping the pain. On March 5, 1993, plaintiff’s decedent again saw Dr. Anderson at his office. She continued to complain of pain and had some abdominal distention. On the night of March 5, plaintiff’s decedent called Dr. Anderson complaining of severe pain. She advised him that she had eaten at McDonald’s earlier that evening. Dr. Anderson prescribed Maalox and Darvocet and told plaintiff’s decedent to call him if she did not feel better. On the morning of March 6, plaintiff’s decedent continued to complain of pain. She was told by Dr. Anderson to go to the emergency room of defendant, Riddle Memorial Hospital. When plaintiff’s decedent arrived at the emergency room about 2:30 p.m. on the afternoon of March 6, she came under the care of the emergency room physician, defendant, Herbert Matthews M.D. Dr. Matthews ordered an x-ray and other tests. Dr. Matthews misread the x-ray. The x-ray showed that plaintiff’s decedent had a perforated ulcer. Dr. Matthews read the x-ray as normal and did not seek a consultation by a gastroenterologist.

Because of her complaints, plaintiff’s decedent was admitted to the hospital. At about 12 midnight that night, the nurses at Riddle noted a significant drop in the blood pressure of plaintiff’s decedent. Although there was a note in the chart to contact Dr. Anderson if there was a change in her condition, the nursing staff failed to notify Dr. Anderson or any other physician of the drop in the blood pressure. At 5:55 a.m. on the morning of March 7, 1993, plaintiff’s decedent was found unresponsive and she was pronounced dead. The cause of death was “perforated acute peptic gastric ulcer.” Later in the day of March 7, the radiologist at Riddle, Martin Hauser M.D., read the x-ray which had been misread by Dr. Matthews. Dr. Hauser found “free intraperitoneal air, suggesting that there had been perforation of a hollow viscus,” i.e., a perforated ulcer.

On May 14, 1993, plaintiff filed a wrongful death and survival action in this court under no. 93-6725. That action is entitled Susan Whitehill, Executrix of the Estate of Joann G. Palumbo, Deceased v. Ronald B. Anderson M.D. and Riddle Memorial Hospital. Plaintiff’s complaint alleged, in pertinent part, as follows:

“(3) Defendant, Riddle Hospital, is a health care provider, with its principal place of business located at 1608 West Baltimore Pike, Media, Pennsylvania 19063-5177 and who at all times hereinafter mentioned rendered medical care to plaintiff’s decedent through its agents, servants, workmen, nurses, doctors and/or employees.
“(4) At all times material hereto, plaintiff’s decedent, Joann G. Palumbo, deceased, was relying on . . . the good reputation of the defendant, Riddle Memorial Hospital, and its agents, servants, workmen, nurses, doctors and/or employees. . . .
“(9) On or about Saturday, March 6, 1993, plaintiff and her husband brought plaintiff’s decedent to the emergency room of defendant, Riddle Memorial Hospital, where she was given treatment, where she was inter alia x-rayed .... Between the time of admission and date of decedent’s demise at approximately 5:55 a.m. on Sunday, March 7, 1993, plaintiff’s decedent’s blood pressure which had been normal on admission, consistently dropped. ...
“(12) The aforementioned death of plaintiff’s decedent, Joann G. Palumbo, was caused by the negligence and carelessness of the defendant, Riddle Memorial Hospital, by their agents, servants, workmen, nurses, doctors and/or employees in that they failed to conform to an acceptable medical standards (sic) of care and ultimately increased the risk of harm suffered by plaintiff’s decedent by:
“(a) Failing to have on hand at the defendant, Riddle Memorial Hospital, on plaintiff’s decedent’s date of admission, Saturday, March 6, 1993, a qualified radiologist who would have timely interpreted the abdominal x-ray as revealing a perforated ulcer in order to timely treat same.
“(b) Having residents and house physicians who failed to interpret the abdominal x-ray as showing a perforated ulcer and timely diagnosing and treating same.
“(c) Failing to call in for consultation, a gastroenterologist in order to determine the ideology (sic) of plaintiff’s decedent (sic) acute abdomen.
“(d) Failing to timely diagnose and treat a perforated ulcer in spite of obvious clinical signs of a perforated ulcer such as pain, stomach distention and a decrease in blood pressure.
“(e) Failing to employ diagnostic modalities such as appropriate hemoglobin tests in order to ascertain that plaintiff’s decedent was losing blood.
“(f) Failing to timely diagnose and treat the perforated ulcer. . . .”

On June 16, 1993, William F. Sutton, Esquire, of the law firm of Post and Schell entered his appearance on behalf of defendant, Riddle Memorial Hospital. Sutton on behalf of Riddle negotiated a settlement with the plaintiff in the amount of $150,000. On July 7, 1994, a joint tort-feasor release was executed by plaintiff. That release provides, in pertinent part, as follows:

“Joint Tort-Feasor Release
“In consideration of the payment of $150,000, I, the releasor, Susan Whitehill, executrix of the estate of Joanne (sic) G. Palumbo, deceased, do hereby and for my assigns, release Riddle Memorial Hospital, and its respective agents, ostensible agents, servants, heirs, executors, administrators, successors, assigns, hereinafter referred to as releasee, from any and all actions, causes of action, claims demands, damages, cost of any kind or sort arising out of or in any way growing out of any and all accidents, incidents, events, occurrences or series of same of medical malpractice, the results of which a claim and/or lawsuit has been made against releasee and Ronald B. Anderson M.D. as set forth in: Susan Whitehill, Executrix of the Estate of Joanne (sic) G. Palumbo, Deceased v. Riddle Memorial Hospital and Ronald B. Anderson M.D., Court of Common Pleas, Delaware County, no. 93-6725. It is the intent of the parties that this release shall apply to any and all claims brought, or which could have been brought, by releasor against releasee, ‘its agents, ostensible agents, heirs, servants, successors, assigns, executors or administrators,’ pertaining to medical care provided to the decedent at Riddle Memorial Hospital. Releasor specifically agrees, in consideration for this settlement agreement, to refrain from commencing any and all litigation against releasee, its agents, ostensible agents, heirs, servants, successors, assigns, executors or administrators in connection with any claims brought, or which could have been brought, in lawsuit no. 93-6725. As part of this release, releasor surrenders any and all rights to pursue claims in connection with matters raised or that could have been raised, in lawsuit no. 93-6725 against any person or legal entity except Ronald B. Anderson M.D. Releasor retains, however, the right to pursue her claims in the aforementioned lawsuit, no. 93-6725, against Ronald B. Anderson M.D., only. . . .
“Releasor hereby declares and recognizes that he/she is represented by counsel, has carefully read this agreement before signing it, that the terms of this agreement have been fully explained by counsel and that the terms are fully understood and voluntarily accepted. It is further understood and agreed that this release is executed and delivered in accordance with, and is to be interpreted and construed by and under the statutes of the Commonwealth of Pennsylvania. . . .”

On November 18, 1994, plaintiff filed a second wrongful death and survival action in this court under no. 94-13794 entitled Susan Whitehill, Executrix of the Estate of Joann G. Palumbo, Deceased v. Herbert Mat thews M.D. This complaint provides, in pertinent part, as follows:

“(2) Defendant, Herbert Matthews M.D., is a duly licensed physician who practices medicine in the Commonwealth of Pennsylvania hereinafter mentioned was the emergency room physician responsible for the treatment of plaintiff’s decedent. . . .
“(4) On or about Saturday, March 6, 1993, plaintiff and her husband brought plaintiff’s decedent to the emergency room at defendant, Riddle Memorial Hospital, where she was given treatment, where she was inter alia x-rayed and given a cardiogram. . . .
“(6) The aforementioned death of plaintiff’s decedent, Joann G. Palumbo, was caused by the negligence and carelessness of the defendant, Dr. Herbert Matthews M.D., in that he failed to conform to an acceptable medical standard of care and ultimately increased the risk of harm suffered by plaintiff’s decedent by:
“(a) Failing to call in for consultation a gastroenterologist in order to determine the ideology (sic) of plaintiff’s decedent’s acute abdomen.
“(b) Failing to timely diagnose and treat a perforated ulcer in spite of obvious clinical signs of a perforated ulcer such as pain, stomach distention and a decrease in blood pressure.
“(c) Failing to employ diagnostic modalities such as appropriate hemoglobin tests in order to ascertain that plaintiff’s decedent was losing blood.
“(d) Failing to take into account plaintiff’s decedent’s history of long-term steroid use as well as clinical symptomatology.
“(e) Failing to timely diagnose and treat the perforated ulcer.”

On February 17, 1995, the Honorable Joseph Battle of this court entered an order consolidating these lawsuits for trial. On October 30, 1996, this court entered an order scheduling trial during the court’s four-week civil trial term beginning February 3,1997. On February 7, 1997, a motion entitled defendant, Herbert Matthew M.D.’s, motion in limine to bifurcate the trial so as to try the issue of the applicability of the release as it pertains to Dr. Matthews separate and apart from the case in chief was filed. The cases were called for trial on February 10, 1997. At that time, all counsel agreed that the request to bifurcate should be granted. Counsel agreed that the court sitting without a jury should take evidence and testimony on the issue of the effect of the joint tort-feasor release on Dr. Matthews and should determine that issue before beginning the jury trial. A hearing was held on February 10, 1997. The only witnesses at that hearing were William F. Sutton and Dr. Matthews. Plaintiff’s counsel did not testify at this hearing nor did plaintiff. On February 11, 1997, this court entered the following order:

“And now, to with, [sic] February 11,1997, all parties having requested that this court take evidence and testimony and determine the validity and effect of the joint tort-feasor release executed by plaintiff on July 7,1994, prior to the commencement of trial and a hearing having been held, this court finds that the joint tort-feasor release executed on July 7, 1994, is a valid and enforceable release which releases Riddle Memorial Hospital and its agents, ostensible agents, servants, heirs, executors, administrators, successors and assigns, including its ostensible agent, emergency room physician, Herbert Matthews M.D.”

Thereafter, a jury trial was begun. The negligence of Dr. Matthews and Riddle was all but conceded. After hearing several days of testimony, the jury returned with a verdict finding that Dr. Anderson was not negligent. A timely post-trial motion was filed. The sole issue raised in that motion was the propriety of the order of this court dated February 11,1997 which found that the joint tort-feasor release signed by plaintiff released not only Riddle but also their ostensible agent, Herbert Matthews M.D. After review of briefs submitted by counsel and oral argument, an order was entered denying plaintiff’s post-trial motion. The instant appeal followed, thus necessitating this opinion.

Plaintiff’s counsel makes the following four arguments in support of his position that the court erred in concluding that the joint tort-feasor release effectively released Dr. Matthews:

“(1) The release as it applies to Dr. Matthews was obtained by fraud and is therefore void.
“(2) The release as it applies to Dr. Matthews was obtained as a result of a unilateral mistake and is therefore voidable.
“(3) The court’s interpretation of the release does not reflect the intent of the parties at the time of signing.
“(4) The court’s interpretation of the release is unconscionable and is against public policy.”

Addressing first the argument of plaintiff’s counsel that the release is void as to Dr. Matthews because it was obtained by fraud, William Sutton, counsel for Riddle, had been retained by PHICO Insurance Company, the same insurance company that insured the emergency room physician, Dr. Matthews. Counsel argues that he was under the impression that Sutton represented Dr. Matthews as an employee of the hospital. Counsel argues that he requested to take the deposition of Dr. Matthews on three separate occasions but that Sutton never produced Dr. Matthews for deposition. Counsel contends that Sutton intentionally deceived him into believing that Dr. Matthews was an employee of Riddle when he was in fact an independent contractor and that Sutton was “stonewalling” the deposition of Dr. Matthews so that counsel would not discover his actual employment status. Counsel argues that Sutton was engaged in a conflict of interest and by his conduct was intentionally trying to secure an unfair advantage for his principal, PHICO Insurance Company, by allowing PHICO to reduce its exposure by incorporating into the settlement, plaintiff’s claims against two separate insureds, Riddle and Herbert Matthews M.D.

The simple answer to the argument of plaintiff’s counsel is that Sutton did nothing improper during the course of his representation of Riddle Memorial Hospital and in his negotiations with plaintiff’s counsel. There is nothing in this record to support the assertions of plaintiff’s counsel that Sutton misrepresented the status of Dr. Matthews to him and actively concealed the fact that Dr. Matthews was an independent contractor. Plaintiff’s counsel never asked Sutton what Matthews’ status was and, assuming that he knew, Sutton certainly had no obligation to volunteer this information.

If plaintiff’s counsel did not know that Dr. Matthews was an independent contractor before plaintiff signed the release, he has no one to blame but himself. Under the Pennsylvania Rules of Civil Procedure, plaintiff’s counsel could have scheduled the deposition of Dr. Matthews at any time prior to the execution of the joint tort-feasor release. If Dr. Matthews had failed or refused to appear for the deposition, counsel could have forced the issue and obtained a court order directing that Dr. Matthews appear. The reality is that plaintiff’s counsel could have determined the status of Dr. Matthews at Riddle whether Sutton wanted to cooperate or not. Although Sutton candidly admitted that he was not anxious to have plaintiff’s counsel depose Dr. Matthews because he felt that Dr. Matthews’ testimony would not be helpful to his client, we fail to see how his conduct rises to the level of fraud or concealment.

In addition, after a settlement had been negotiated between plaintiff and Riddle but before the release was signed, Sutton called plaintiff’s counsel to alert him to the fact that the release contained unusual language. This language had been inserted in the release because of an appellate decision, Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980), which established the principle of ostensible agency in Pennsylvania in the context of a hospital emergency room. Sutton told plaintiff’s counsel that the language of the release was not the usual language and was designed to protect Riddle from any other lawsuits by plaintiff for care which plaintiff’s decedent received at Riddle and specifically care received in the emergency room. Sutton told counsel that he was concerned about other lawsuits because the statute of limitations had not run and because of the fact that emergency room doctors could be found to be ostensible agents of the hospital. Plaintiff’s counsel responded that he did not intend to file any other lawsuits.

After this telephone call and after he read the language of the release, if plaintiff’s counsel did not realize that Dr. Matthews was being released from liability for the care and treatment of plaintiff’s decedent, he should have. Dr. Matthews was clearly an ostensible agent. The language of the release is clear and ambiguous. Plaintiff was releasing Riddle and its ostensible agents from all claims of any nature that could have been included in the original lawsuit and was reserving the right to sue only Dr. Anderson for what happened to plaintiff at Riddle Hospital on March 6 and March 7, 1993. Under the circumstances, we don’t know how Mr. Sutton could have made it any clearer.

Addressing next the argument of plaintiff’s counsel that the release was the result of a unilateral mistake, counsel cites section 153 of the Restatement (Second) of Contracts in support of his position. Section 153 provides, in pertinent part, as follows:

“Where the mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performance that is adverse to him, the contract is voidable by him if he does not bear the risk of the mistake under the rule stated in section 154, and
“(b) the other party had reason to know of the mistake or his fault caused the mistake.”

Section 154 provides, in pertinent part:

“A party bears the risk of a mistake when . . .
“(b) he is aware, at the time the contract was made, that he has only limited knowledge with respect to the facts to which the mistake relates but treats his limited knowledge as sufficient . . . .”

In the instant case, it is clear that plaintiff’s counsel and plaintiff bear the risk of the mistake, if in fact there was a mistake. William Sutton never discussed with plaintiff’s counsel the status of Dr. Matthews at Riddle Memorial Hospital. Counsel never asked Sutton about the status. Counsel had the ability to get this knowledge by forcing the deposition of Dr. Matthews before having his client sign the joint tort-feasor release. In treating this limited knowledge as sufficient, plaintiff and her counsel assumed the risk of a mistake.

Moreover, there is no reason to believe that Mr. Sutton knew of the mistake or was at fault in causing the mistake. Sutton testified that he did not intentionally conceal Dr. Matthews’ status from plaintiff’s counsel and that he had no knowledge as to what plaintiff’s counsel knew about the status of Dr. Matthews. In fact, Sutton testified that he himself is not even sure that he knew of Dr. Matthews’ status as an independent contractor when he was negotiating this settlement or preparing this release but that as a practical matter it didn’t make any difference, the release would have been the same. We have no reason to disbelieve that testimony.

Addressing next the argument of plaintiff’s counsel that the court’s interpretation of the release does not reflect the intention of the parties at the time of the signing, we would again point out that neither plaintiff nor her counsel testified at the hearing. We therefore have no direct evidence as to what plaintiff or her attorney may have intended. However, we do have the plain and ambiguous language of the release, the fact that Dr. Matthews was clearly an ostensible agent and the intention of Sutton conveyed to plaintiff’s counsel by telephone that the release was to cover emergency room doctors. This is more than sufficient to support the court’s conclusion that the parties intended to release Dr. Matthews.

Finally, addressing the argument of plaintiff’s counsel that the court’s interpretation of the release is unconscionable and against public policy, this argument is based on counsel’s assertion that Sutton fraudulently concealed Dr. Matthews’ status at Riddle. These assertions have already been rejected. Counsel’s argument is without foundation.

For these reasons, we denied plaintiff’s post-trial motion.

      . The use of Toradol by plaintiff’s decedent was a significant trial issue.

      . The verdict slip was designed so that if the jury found Dr. Anderson causally negligent, the jury would have then apportioned that negligence between Dr. Anderson, Dr. Matthews and Riddle. If the jury found that Dr. Anderson was not causally negligent, they were directed to answer no further questions and to return to the courtroom.

      . The argument of plaintiff’s counsel is interesting. He argues that he released Dr. Matthews from liability for his negligence in treating plaintiff’s decedent as an agent/employee of the hospital but that he would not have released him for that same negligence if he was an ostensible agent/independent contractor. Under the facts of this case, the hospital was liable for the negligence of Dr. Matthews in either capacity and the same insurance company insured both.

      . In fact, counsel did exactly that in 1995 when he requested a court order directing Dr. Matthews’ deposition, and Judge Battle entered an order dated March 31, 1995, directing that the deposition take place within 60 days.

      . Reformation of a release requires a showing of fraud by clear, precise and convincing evidence. Wolbach v. Fry, 488 Pa. 239, 412 A.2d 487 (1980).


author: BLACK, J.,

text:
    Commonwealth v. Doe

      C.P. of Lehigh County,
    no. 1998/261-M.

      Steven M. Luksa, assistant district attorney, for Commonwealth.

      Kathleen E. Panek, assistant public defender, for defendant.
    April 16, 1998
   BLACK, J.,

The District Attorney of Lehigh County has moved for the entry of a court order, pursuant to 35 P.S. §7608, directing Sacred Heart Hospital to release the results of Human Immunodeficiency Virus blood tests of defendant, John Doe, both to the district attorney and to Jane Doe, whom defendant allegedly bit on the hand. The district attorney seeks information regarding the defendant’s HIV status because if defendant bit Jane Doe while knowingly infected with the virus, the district attorney intends to add more serious charges to the felony retail theft and assault charges already filed against defendant. Jane Doe seeks this information so that she will know if she has been exposed to the virus; if so, she can then commence appropriate drug therapy. Defendant resists providing this information to the district attorney or to Jane Doe.

The Confidentiality of HIV-Related Information Act, 35 RS. §7601 et seq., prohibits the disclosure of HIV-related information, except in certain limited circumstances. The purpose of the Act is “to promote confidential testing on an informed and voluntary basis in order to encourage those most in need to obtain testing and appropriate counseling.” 35 P.S. §7603(d). The Act allows for disclosure on court order after an in camera hearing where “[t]he person seeking the information has demonstrated a compelling need for that information which cannot be accommodated by other means.” 35 P.S. §7608(a)(l). In assessing claims of compelling need, “the court shall weigh the need for disclosure against the privacy interest of the individual and the public interests which may be harmed by disclosure.” 35 P.S. §7608(c).

At an in camera hearing on the district attorney’s motion, the following facts were established: Jane Doe, a security officer at a local store, observed defendant shoplifting some clothing items. She confronted him in the parking lot and asked that he return to the store. She put her hand on his shoulder to steer him back to the store, at which point he grabbed her by the hair with both hands and began to push her away. A scuffle ensued, in which another employee of the store and an employee of a nearby store came to the assistance of Jane Doe. Defendant was subdued and forced to return to the store, where he was taken into custody by the local police, who had by this time arrived on the scene.

In the course of the parking lot scuffle, defendant bit Jane Doe on the hand with such force that the skin of her hand was broken in several places. Her hand was bleeding as a result. Defendant then stated several times to Jane Doe and to others in the parking lot that he had AIDS. After he had been taken inside the store, defendant repeated this statement several times in the presence of the police officers and other store employees.

At the suggestion of the police, defendant accompanied them to Sacred Heart Hospital, where with his consent a blood sample was drawn from him for HIV testing. Defendant signed a consent form authorizing the hospital to furnish to the police department all information regarding his case history and treatment, including copies of the hospital medical records. However, after his blood sample had been drawn, but before the test results were conveyed, defendant revoked his consent to disclosure.

According to expert medical testimony at the hearing, HIV is a slow-developing virus. Sometimes it takes eight to 10 years after the initial exposure for the virus to develop into full-blown AIDS. The patient may be symptom-free during this period. However, once symptoms begin to develop, the disease is invariably fatal. The virus may be transmitted from mother to newborn child, by sexual relations, or by the sharing of blood or body fluids. Where a person with the virus bites another person so as to cause a break in the skin, there is a moderate to high risk (depending on the dental hygiene of the biter) that the virus will be transmitted from the saliva of the biter into the bloodstream of the victim. There have been several documented cases of this occurring.

Because the virus is slow to develop, it is not possible to determine immediately after the exposure whether a person has been infected. It is possible for a person to test negative for the virus immediately after the exposure, and then to have a positive test at a later date. It is important to know as soon as possible whether a person has been exposed, because drug therapy is highly recommended where there has been a significant exposure, even if the victim does not test positively for the virus. Drug therapy has been very successful in reducing the effects of the virus, and the sooner the therapy is begun, the more effective it is.

Although Jane Doe has tested negative for the virus, she remains highly concerned over the possibility of developing the disease if in fact defendant was a carrier of the virus. Therefore, it is understandably very important to her to know whether defendant’s claim of having AIDS is true or whether he was simply seeking to intimidate her. Until this information is provided, she is undergoing extreme emotional distress. She is frightened about her health; her outlook towards her job has been adversely affected; and the potential of her carrying the disease has had a dramatic effect on her relationships with her boyfriend and her family members.

There can be no doubt that Jane Doe demonstrated a compelling need for information about defendant’s HIV status as soon as possible. Accordingly, we entered an appropriate order promptly after the hearing requiring that defendant’s HIV test results be released to her and to any physicians or other health care providers designated by her for the sole purpose of evaluating and treating her. This 21-year-old young lady was entitled to know whether she had been exposed to this dreadful virus. Defendant, whose unlawful actions created the potential for exposure and who maliciously taunted her with the claim that he had AIDS, has no significant privacy interest here. Nor is there any public interest that would be harmed by the disclosure of test results in these circumstances. The potential saving of human life must outweigh other considerations. See Application of Milton S. Hershey Medical Center of Pennsylvania State University, 407 Pa. Super. 565, 595 A.2d 1290 (1991), appeal granted, 531 Pa. 640, 611 A.2d 712 (1992), affirmed, 535 Pa. 9, 634 A.2d 159 (1992), holding that the two hospitals could disclose the identity of an HIV-positive surgeon to certain of his colleagues and could also notify certain patients that an unnamed resident physician who had participated in their care was HIV-positive.

The district attorney’s need for this information is less compelling than Jane Doe’s need. Therefore, at the conclusion of the in camera hearing, we took the district attorney’s request under advisement. We now grant that request and direct Sacred Heart Hospital to provide the district attorney with the test results, subject to the limitations set forth in our accompanying order.

We have reached this conclusion by weighing the district attorney’s need for the information against defendant’s privacy interest and any public interests that might be harmed by the disclosure, as we are required to do under 35 P.S. §7608(c). We have considered the fact that the district attorney is responsible under the law for prosecuting those persons who have committed crimes in this county. If defendant does in fact have the AIDS virus, the gravity of the offense that he has committed against Jane Doe changes from simple assault, a misdemeanor, to aggravated assault, a felony, or perhaps even to attempted criminal homicide. The district attorney could conceivably assert the more serious offenses based solely on defendant’s statements that he has AIDS. However, without the test results, the district attorney would be at a significant disadvantage in prosecuting the case. Defendant could at any time change his position and claim that his statements were erroneous.

We also believe that defendant has waived any rights of privacy under the Act by his public declarations. Defendant cannot seriously claim that his HIV status, if it exists, is confidential because he himself broadcast it to many people at the time of the parking lot scuffle and later inside the store. The waiver rationale for disclosure was adopted by a New York court in Application of Gribetz, 605 N.Y.S.2d 834 (Rockland Co. Ct. 1994), where a female patient at a mental health center bit a worker who was trying to restrain her and then announced that she had AIDS. The court held that disclosure to the prosecutor was warranted because: “under the circumstances of this case where the defendant allegedly announced publicly on more than one occasion that she was H.I.V. positive, that she effectively waived her own privacy interest in the test results.” Id. at 836.

In view of defendant’s voluntary statements to Jane Doe and others, we see no public interest that would be harmed by the disclosure. It is difficult to envision that anyone who has publicly announced his contraction of AIDS would be deterred from having an HIV blood test for fear that the results might be disclosed.

It should be noted that a “compelling need” under section 7608 can be a need for litigation purposes as well as a medical need. In Agosto v. Trusswal Systems Corp., 142 F.R.D. 118 (E.D. Pa. 1992), the Federal District Court for the Eastern District of Pennsylvania ordered disclosure of confidential HIV-related information regarding the plaintiff in a products liability suit. The plaintiff allegedly had tested HIV-positive, and was seeking damages for future pain and suffering and future loss of earning capacity, so that his life expectancy was very much an issue. The court held that the interest of the defendant in preparing an adequate defense to the case was a “compelling need” under section 7608 that justified release of the information to the defendant.

In the circumstances of this case, in weighing the district attorney’s need for the information against defendant’s waived privacy interest and any public interest in non-disclosure, the balance tilts heavily in favor of disclosure to the district attorney. Where a person has openly stated that he has AIDS, there is no legitimate purpose to be served in refusing disclosure of his HIV test results to persons with a genuine need for this information. Defendant’s alleged HIV status is no longer a confidential matter, by his own declarations.

As for the form of our order, the Act requires that a disclosure order impose appropriate safeguards against later unauthorized disclosure by recipients of the information. In the Jane Doe order previously entered, we referred to her and defendant by pseudonyms to preserve their anonymity. We informed Sacred Heart Hospital of their true identities in a confidential communication not part of the regular court file, as required by the Act, so that the hospital could comply with the order. We prohibited any further disclosure.

This procedure is not appropriate for the disclosure order to the district attorney. If the test results are positive, the district attorney must be free to charge the defendant by name with the appropriate crimes and to offer the test results into evidence at a public trial. Therefore, although we have continued to refer to the parties by pseudonyms in this order, we have not restricted the district attorney from disclosing the information to the extent required for the prosecution of this case. If in fact the defendant deliberately bit Jane Doe knowing that he was HIV-positive, he has committed a most heinous crime, and the public has the right to know of his act. Moreover, defendant’s privacy interests in this information vanished when he himself made his HIV status public.

ORDER

Now, April 16,1998,upon consideration ofthe motion of James Martin, Esq., District Attorney of Lehigh County, for release of HIV blood test results of John Doe, it appearing after hearing that there is a compelling need for disclosure of this information to said district attorney, it is ordered as follows:

(1) The results of the HIV blood tests performed on John Doe at Sacred Heart Hospital in February 1998, shall be released to James Martin, Esq., District Attorney of Lehigh County.

(2) This information is to be used solely for the purpose of prosecuting defendant, John Doe, on charges arising from an incident on or about February 4, 1998, in which he allegedly bit Jane Doe.

(3) The district attorney shall limit access to this information to those attorneys and support staff directly involved in the prosecution of the case against John Doe, except as it may be necessary to disclose this information in court in the prosecution of the case.

(4) All persons who receive defendant’s HIV test results pursuant to this order are prohibited from further disclosure of this information, except as may be required in court proceedings on the charges against defendant.

      . John Doe is a pseudonym for defendant, and Jane Doe a pseudonym for the victim.

      . Acquired Immune Deficiency Syndrome.

      . 35 P.S. §7607(e)(8) provides that such a consent “is subject to revocation at any time except to the extent that the person who is to make the disclosure has already acted in reliance on it.”


author: FIELD, J.,

text:
    Merriweather v. Kain

      Joseph W. Chapein Jr., for plaintiff.

      Nancy J. Leddy, for defendant.
    November 10, 1998
   FIELD, J.,

Plaintiff, Bernard Merriweather, appeals from this court’s denial of his post-trial motion seeking a new trial. For the reasons below the post-trial motion was properly denied, and the summary judgment granted in favor of the defendant on March 5, 1998, should be affirmed.

A jury trial commenced in this matter on March 3, 1998. This matter arises from a motor vehicle accident which occurred on January 20,1993, in which the plaintiff, Bernard Memweather, suffered injuries. At the close of the plaintiff’s case, summary judgment was granted in favor of the defendant, because the plaintiff failed to present evidence of a sufficiently serious injury which would permit the plaintiff to proceed under the limited tort option elected by him.

Under the Pennsylvania Motor Vehicle Financial Responsibility Law 75 Pa.C.S. §1701 et seq., each person seeking insurance must elect either “full tort” or “limited tort” coverage, the latter being less expensive. Section 1705(d) of the Act provides:

“(d) Limited tort alternative. — Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss . . . .” 75 Pa.C.S. § 1705(d).

Serious injury is defined as “A personal injury resulting in death, serious impairment of bodily function or permanent serious disfigurement.” 75 Pa.C.S. §1702. (emphasis added) Hence under the limited tort option a claimant must show more than an impairment of bodily function; the impairment must be “serious.”

At trial, the defendant relied on Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), for the proposition that a determination regarding the seriousness of a limited tort elector’s injuries must initially be made by the trial court judge. The Pennsylvania Supreme Court has addressed this precise issue very recently, in Washington v. Baxter, 719 A.2d 733 (Pa. 1998). In Washington, the court modified Dodson, holding that while it is normally a jury question as to whether an injury fits the definition above, where, in viewing the evidence in the light most favorable to the plaintiff, reasonable minds cannot differ, it is incumbent upon the trial court to take the question from the jury.

Mr. Washington had suffered a cervical strain or sprain, cuts, contusions, and an injury to his foot. Immediately following his accident, he was unable to work at his full-time job for four to five days. He also missed work at his secondary, part-time job for approximately one month. Five months after his accident, he was still suffering from his foot injury which his doctor treated with cortisone and orthotic supports in his shoes. As of one year after his accident, Mr. Washington had occasional pain and swelling in his foot, but had worked throughout this period without interruption. His main lifestyle adjustment was that he had to use a riding lawn mower rather than one he had to manually push. The Supreme Court held that reasonable minds could not differ that such limitations did not constitute a serious impairment of a bodily function and that the trial court had properly taken the case from the jury.

In the instant matter, Mr. Merriweather testified that immediately after the accident he suffered from headaches, neck pain and back pain. During the following year, he limited his athletic activities. In addition, he stated that his job as a behavior treatment specialist called on him to physically restrain patients at times, and that this task was now more difficult. He then switched jobs and became a drug and alcohol treatment counselor which, he testified, he had always wanted to be. His chiropractor testified that Mr. Merriweather stopped his treatment approximately eight months after the accident. The plaintiff testified that as of the time of trial he had occasional aches and pains and was still less active in sports than he was before the accident. Viewing all the evidence in the light most favorable to the plaintiff, the trial court found that such complaints could not constitute serious impairment of a bodily function under the MVFRL. In consideration of Washington, the defense motion was properly granted.

Plaintiff also argues that the trial court improperly limited the testimony of plaintiff’s chiropractor, Michael Tancredi D.C. Plaintiff’s counsel asked Dr. Tancredi whether plaintiff’s condition constituted a “serious impairment of a body function.” Defense counsel objected on the basis that such an opinion was outside the scope of Dr. Tancredi’s report. After review of the report, the court agreed. The question was withdrawn and plaintiff’s counsel went on with his direct examination. Even if Dr. Tancredi had been allowed to answer, and had done so in the affirmative, the plaintiff’s own testimony would have dictated the same outcome. No error occurred.

For all of the above reasons, the judgment entered on March 5, 1998, should be affirmed.


text:
    Crawford v. Shop Rite Supermarket Inc.

      Mary Matkoff Cohen, for plaintiffs.

      Thomas J. Brodley, for defendant.
    October 27, 1998
   ACKERMAN, J.,

This is an appeal by the plaintiffs from this court’s order of October 2, 1998, granting defendant Shop Rite Supermarket Inc.’s motion for summary judgment and dismissing plaintiffs’ action with prejudice.

The essential facts underlying this case are not in dispute.

The state of the record at the entry of summary judgment was clear to the effect that the defendant, Shop Rite Supermarket Inc., was not the owner nor in control of the premises where the plaintiff, Keith Crawford, had allegedly been injured.

The basic issue involved in this case and underlying the granting of summary judgment was whether this court erred in denying plaintiffs’ prior petition for leave to amend their complaint “correcting the name of defendant from ‘Shop Rite Supermarket Inc.’ to ‘Trio Food Centers Inc. d/b/a Shop Rite Supermarket t/a Shop-Rite.’ ”

The petition to amend was filed on May 4, 1998, admittedly five months and seven days after the two-year statute of limitations had expired on the alleged incident of November 28, 1995.

At the time of the filing of the plaintiffs’ complaint on August 8, 1996, the supermarket located at 301 West Chelten Avenue, in Philadelphia, Pennsylvania, (where plaintiff allegedly fell) was operated, possessed and maintained by Trio Food Centers Inc. Trio Food Centers Inc. is a Pennsylvania corporation and is a member of a cooperative known as Wakefern Food Corporation. (See affidavit of Rafael Lissack, president of Trio Food Centers Inc., which is attached as exhibit “A” to defendant’s response for leave to amend complaint.) As a member of the cooperative known as Wake-fern Food Corporation, Trio Food Centers Inc. trades under the name “ShopRite.” Other individually owned corporations who are members of the cooperative also trade under the name “ShopRite.”

Trio Food Centers Inc. is a Pennsylvania corporation, which is located and registered to do business in the Commonwealth of Pennsylvania, and was so licensed and registered on the date of the alleged accident, November 28, 1995. At all times since February 1980, Trio Food Centers Inc. was a tenant at 301 West Chelten Avenue, Philadelphia, Pennsylvania, and operated, controlled and maintained the supermarket located at that address. See exhibit “A” attached to defendant’s response for leave to amend complaint and exhibit “1” which is attached to exhibit “A.”

Shop Rite Supermarket Inc., the defendant herein, is a New Jersey corporation. Shop Rite Supermarket Inc. also operates a number of retail supermarkets in a number of states, including New Jersey and Pennsylvania. Shop Rite Supermarket Inc. is also a member of Wakefem Food Corporation and, as such, operates its retail supermarkets as “ShopRite” supermarkets. Shop Rite Supermarket Inc. did not operate the supermarket located at 301 West Chelten Avenue, Philadelphia, Pennsylvania, on November 28, 1995, or at anytime either before or after November 28,1995. Shop Rite Supermarket Inc. is a separate and distinct corporation from Trio Food Centers Inc. The corporate headquarters and principal place of business of Shop Rite Supermarket Inc. is Edison, New Jersey. As admitted by plaintiffs in their motion for leave to amend, the corporate address of Trio Food Centers Inc. is 5 East Wynnewood Road, Wynnewood, Pennsylvania.

Thus, two distinct entities existed when the complaint was filed and plaintiffs brought suit against the wrong party and sought after the statute of limitations had run to substitute the correct party.

In the instant matter, following the alleged incident, plaintiffs’ counsel began settlement negotiations with Risk Services Inc. Risk Services Inc. is the self-insured administrator for members of the cooperative known as Wakefern Food Corporation. As such, Risk Services Inc. represents members of the cooperative who trade as “ShopRite.” Plaintiffs claim that written correspondence from Risk Services Inc. indicates that the adjusters were representing ShopRite supermarkets. However, an examination of the correspondence attached by plaintiffs to their motion for leave to amend reveals that the insured is referred to simply by its trade name, “ShopRite.” Plaintiffs have not produced any documents that show that Risk Services represented that the defendant operated the involved store, nor have plaintiffs claimed that their counsel asked any adjuster from Risk Services Inc., who the entity was that operated the supermarket located at 301 West Chelten Avenue, in Philadelphia, Pennsylvania.

On August 8,1996, plaintiffs filed a civil action complaint in Philadelphia County Court of Common Pleas. Within the complaint, plaintiffs claim that the supermarket located at 301 West Chelten Avenue was owned, possessed and controlled by Shop Rite Supermarket Inc. Within two weeks of filing the complaint, plaintiffs served the complaint at 301 West Chelten Avenue and at CT Corporation at 1635 Market Street, Philadelphia, Pennsylvania. As admitted by plaintiffs within their motion for leave to amend, Shop Rite Supermarket Inc. has an address for service, care of CT Corporation.

On or about September 11,1996,more than 14months before the expiration of the statute of limitations, defendant filed an answer with new matter to plaintiffs’ complaint. In response to allegations contained within the complaint, Shop Rite Supermarket Inc. denied having ever conducted business at 301 West Chelten Avenue, Philadelphia, Pennsylvania, and denied having ever owned, possessed or controlled the property located at 301 West Chelten Avenue, Philadelphia, Pennsylvania. Plaintiffs filed an answer to the defendant’s new matter on October 7,1996. At no time after defendant’s answer to the complaint was filed, did plaintiffs’ counsel ask defense counsel who owned and/or operated the supermarket located at 301 West Chelten Avenue, Philadelphia, Pennsylvania, on the date of the alleged incident. Similarly, at no time before April 22, 1998, almost five months after the expiration of the statute of limitations did plaintiffs’ counsel request that the parties sign a stipulation adding the entity that possessed and operated the supermarket located at 301 West Chelten Avenue, Philadelphia, Pennsylvania, as a defendant.

Although plaintiffs served defense counsel with a request for production of documents on or about December 1996, the discovery request did not seek production of documents relating to the ownership or operation of the supermarket located at 301 West Chelten Avenue in Philadelphia, Pennsylvania. Moreover, even though defense counsel never provided a formal response to the request for production of documents, all discoverable documents responsive to the request for production of documents were provided to plaintiffs’ counsel as they were received by defendant’s counsel.

Plaintiffs’ counsel also neglected to inform the court that plaintiffs responded to the defendant’s request for production in the same manner that the defendant responded to plaintiffs’ request for documents. Plaintiffs’ counsel wrote on December 4, 1996, in the same letter in which the plaintiffs enclosed their request for production of documents, “Please be advised that in lieu of a formal response to defendant’s request for production of documents, we enclose all discoverable documents in our file.”

This court under the circumstances has not found any appellate authority which would have permitted the granting of plaintiffs’ petition to amend their complaint and adopts in many respects the authorities and argument cited in the memorandum of defendant in response to plaintiffs’ petition to amend.

“In situations where the statute of limitations has run, and a party proposes an amendment to a complaint, as in the instant case, the question to be resolved is whether the proposed amendment merely corrects a party name or adds a new party to the litigation.” Jacob’s Air Conditioning v. Association Heating, 366 Pa. Super. 430, 433, 531 A.2d 494, 496 (1987). The courts are settled that if the amendment constitutes a simple correcting of a name of a party, it should be allowed. Wicker v. Esposito, 500 Pa. 457, 457 A.2d 1260 (1983); Thomas v. Duquesne Light Co., 376 Pa. Super. 1, 545 A.2d 289 (1988). However, if the amendment, in effect, adds a new party, it should be prohibited. Jacob’s Air Conditioning, 366 Pa. Super. at 433, 531 A.2d at 496; Cianchetti v. Kaylen, 241 Pa. Super. 437, 361 A.2d 842 (1976).

In the case at bar, plaintiffs claim that their proposed amendment seeks merely to correct the name of Shop Rite Supermarket Inc. to Trio Food Centers Inc. Yet, Shop Rite Supermarket Inc. and Trio Food Centers Inc. are separate and distinct corporate entities. Shop Rite Supermarket Inc. is a New Jersey corporation with its headquarters located in Edison, New Jersey. Shop Rite Supermarket Inc. operates a number of retail supermarkets in Pennsylvania, New Jersey, New York and Connecticut. However, at no time did defendant, Shop Rite Supermarket Inc., operate the supermarket located at 301 West Chelten Avenue in Philadelphia, Pennsylvania. On the other hand, Trio Food Centers Inc. is a closely held Pennsylvania corporation. Its president is Rafael Lissack. The corporate address of Trio Food Centers Inc. is 5 East Wynne wood Road, Wynne wood, Pennsylvania. Trio Food Centers Inc. operates only one retail supermarket, the supermarket located at 301 West Chelten Avenue. Although Shop Rite Supermarket Inc. and Trio Food Centers Inc. operate supermarkets that trade under the “ShopRite” name, there is no business affiliation between the two corporations. Thus, plaintiffs’ proposed amendment is an improper attempt to add Trio Food Centers Inc. to this litigation under the guise of correcting the name of Shop Rite Supermarket Inc.

Plaintiffs in their brief have cited several cases which purportedly support their position with regard to the proposed amendment. However, a review of those cases reveals that they are factually and/or procedurally distinguishable from the case at bar. In one such case, Waugh v. Steelton Taxicab Co., 371 Pa. 436, 89 A.2d 527 (1952), the court allowed the plaintiff to amend his complaint against the taxicab “company” because the “company” was not a corporation but a fictitious name used by an individual in the conduct of his taxicab business. The Waugh court agreed that the critical question for determination is whether the right party was sued but under a wrong designation, or whether a wrong party was sued and the amendment was designed to substitute another distinct party. Id. at 438, 89 A.2d at 528. Unlike the situation in Waugh, plaintiffs in this case sued an actual corporation, Shop Rite Supermarket Inc. Shop Rite Supermarket Inc. is not a fictitious name. Plaintiffs simply sued the wrong party.

In another case cited by plaintiffs, Fretts v. Pavetti, 282 Pa. Super. 166, 422 A.2d 881 (1980), a similar situation to that of Waugh was presented to the court. In Fretts, plaintiffs sued “Stcip N Shop, a corporation.” Defendant, in its answer to the complaint responded that no such corporation existed and stated that the business in question was operated by Mr. Pavetti, trading and doing business as “Scottdale Stop N Shop.” The court allowed the amendment because the plaintiffs had sued the right party but under a wrong designation. The Fretts court conceded, however, that when an amendment is sought after the expiration of the statute of limitations and the amendment attempts to impose liability on assets not originally subject to liability, the amendment should be denied. Id. at 171, 422 A.2d at 881. In the case presently before the court, plaintiffs are attempting to subject the assets of Trio Food Centers Inc. to liability in place of the assets of Shop Rite Supermarket Inc. In doing so, Trio Food Centers Inc. is prejudiced by the proposed amendment. Jacob’s Air Conditioning, 336 Pa. Super. at 433-34, 531 A.2d at 496.

In two other cases cited by plaintiffs, Russell v. American LaFrance Sales and Service Inc., 2 D.&C.4th 185 (1989) and Cianchetti v. Kaylen, 241 Pa. Super. 437, 361 A.2d 842 (1976), the court allowed amendment of the complaint.

A close reading of Cianchetti v. Kaylen, 241 Pa. Super. 437, 361 A.2d 842 (1976) reveals that a Henry J. Kaylen was the intended defendant in that case, but a Harry J. Kaylen was sued. There was an unsuccessful service on the named defendant, Harry J. Kaylen, and the complaint was reinstated after the statute of limitations had run and service was made on Henry J. Kaylen after the statute. Counsel entered an appearance for defendant, Henry J. Kaylen, but sought to withdraw his appearance as Harry J. Kaylen had died before the accident. Thus, no Harry J. Kaylen existed as a defendant, and it was crucial to the Cianchetti court that the only possible defendant was the intended Henry J. Kaylen. Only in its dicta did that court suggest that if the right party was in court as a result of service of process should an amendment be permitted. Parenthetically in the case at bar, two different defendants were, in fact, served.

The case of Russell v. American LaFrance Sales and Service Inc., 2 D.&C.4th 185 (1989) is not binding authority and misreads the essence of the Cianchetti opinion.

In three other cases cited by plaintiffs, Zimmer v. Benchmark Management Corp., 20 D.&C.4th 1 (1993); Trace v. Slack Shack, 17 D.&C.4th 146 (1992), and Adamo v. Heck’s Department Store, 46 D.&C.3d 325 (1987), the court allowed amendment of the named defendant in each case to reflect the proper name of the defendant. For reasons already discussed, these cases are factually distinguishable from the present case. Similarly, in Thomas v. Duquesne Light Company, 376 Pa. Super. 1, 545 A.2d 289 (1988), the court allowed plaintiff to amend the complaint to reflect that the defendant was a corporation rather than a sole proprietorship. Again, in the case at bar, plaintiffs’ proposed amendment would add a new corporation to the lawsuit in substitution for the corporation which they sued.

Finally, plaintiffs cite Lafferty v. Alan Wexler Agency Inc., 393 Pa. Super. 400, 574 A.2d 671 (1990) for the proposition that the amendment should be allowed to add Trio Food Centers Inc. as a defendant because the defendant concealed from the plaintiffs the identity of the correct defendant until the statute of limitations had run. In Lafferty, on two separate occasions prior to the expiration of the statute of limitations, the defendant filed preliminary objections to the plaintiff’s complaint. On both occasions, the preliminary objections were sustained. In neither of the filings of preliminary objections, did the defendant indicate that the defendant did not own and/or control the subject property. Only after the expiration of the statute of limitations did the defendant indicate, in its answer with new matter to the complaint, that the defendant did not own or control the subject property. The court allowed the amendment of the complaint because the defendant had misled the plaintiff until after the statute of limitations had expired as to who was the proper defendant. Unlike the situation in Lafferty, in the case at bar, 14 months before the expiration of the statute of limitations, the defendant advised the plaintiffs in its answer with new matter that the defendant did not conduct a business or maintain, possess or control the supermarket located at 301 West Chelten Avenue in Philadelphia, Pennsylvania. Thus, plaintiffs were aware of the fact that they had sued the wrong party well in advance of the end of the statutory period.

Plaintiffs’ proposed amendment would add a new party to this litigation beyond the expiration of the statute of limitations. The proposed amendment seeks to subject the assets of Trio Food Centers Inc. to liability in this action in place of the assets of Shop Rite Supermarket Inc. As the courts of the Commonwealth have held, to subject additional assets to liability following the expiration of the statute of limitations prejudices the party to be added to the litigation.

Additionally, plaintiffs cannot claim that the defendant concealed the fact that they were not the proper defendant in this case, as the defendant clearly stated within its answer to the complaint, which the defendant filed 14 and one-half months before the expiration of the statute of limitations, that Shop Rite Supermarket Inc. did not conduct a business where the incident allegedly occurred, and Shop Rite Supermarket Inc. did not maintain, possess or control the premises where the incident allegedly occurred.

Finally, plaintiffs admit in their petition for leave to amend the complaint that without much effort, albeit following the expiration of the statute of limitations, they obtained from public records the identity of the proper defendant. This information was just as easily available to plaintiffs prior to the filing of the complaint or at any time after the filing of the complaint but prior to the expiration of the statute of limitations. Also, despite having received the defendant’s answer with new matter prior to the expiration of the statute of limitations, plaintiffs’ counsel made no attempt to obtain the identity of the proper defendant from defense counsel.

Accordingly, there was no error in entering summary judgment.

      . A copy of defendant’s answer to plaintiffs’ complaint is attached to plaintiffs’ petition for leave to amend as exhibit “H.”

      . See paragraphs 2 and 10 of exhibit “H” attached to plaintiffs’ petition for leave to amend.