text:
    Appeal of Dauphin County General Authority v. Dauphin County Board of Assessment Appeals

      C.P. of Dauphin County,
    nos. 5688 S 1998 and 5689 S 1998.

      Neil E. Hendershot, for Dauphin County General Authority.

      Carl G. Wass, for Dauphin County Board of Assessment Appeals.

      Judith B. Schimmel, for City of Harrisburg.
    December 15, 1999
   LEWIS, J.,

Presently before this court are two appeals by the Dauphin County General Authority from an adjudication of the Dauphin County Board of Assessment Appeals which found that the premises located at 555 Walnut Street, Harrisburg (Forum Place) and the premises located at 1101 South Front Street, Harrisburg (Riverfront Office Center) were not immune or exempt from the payment of real estate taxes.

The facts of these consolidated cases are, essentially, not disputed. The authority was created by ordinance adopted by the board of commissioners of Dauphin County as a municipal authority under the Pennsylvania Municipal Authorities Act, 1945, May 2, P.L. 382, as amended, 53 PS. §301 et seq. The authority was incorporated on March 7,1984 for an initial term of 50 years. On January 8,1998, the term of the authority’s existence was extended to January 8, 2048.

Forum Place consists of 2.26 acres of land with a nine-story office building constmcted thereon. The building contains approximately 377,804 square feet of net leas-able area with a parking garage for approximately 1,482 vehicles. In addition, the property maintains related access ways and appurtenant facilities. Prior to its purchase by the authority on July 13,1998 for $65,799,000 in tax-exempt revenue bonds, Forum Place was constmcted by Musalair Trust, under the direction of its trustee, John O. Vartan. At the time, the developer had negotiated long-term leases for office space with the Commonwealth of Pennsylvania.

Riverfront Office Center consists of 19.11 acres of land on which is constructed a five-floor office building with a total of approximately 438,000 square feet of area, divided into roughly 365,400 square feet for office space and 75,000 square feet for a lower level parking garage with space for nearly 200 vehicles. There are also additional surface parking lots of approximately 485,432 square feet. In addition, the premises accommodates roadside parking areas, related roads and appurtenant facilities. Prior to its purchase by the authority on June 30, 1998 for $41,040,000 in tax-exempt revenue bonds, Riverfront Office was constructed by Alex Grass and Oliver Rosenberg, a partnership, succeeded by C.R. Center L.P. d/b/a Commonwealth River Front Office Center L.P, a Pennsylvania limited partnership. Similar to the Forum Place property, the private developer of Riverfront Office Center had negotiated long-term leases for its office space with the Commonwealth of Pennsylvania.

All of the properties’ leases were assigned by the respective sellers to the authority. The properties are presently leased to the following governmental bodies:

Forum Place

—Pennsylvania Office of the Attorney General

—Legislative Reference Bureau

—Pennsylvania Department of Aging

—United States Social Security Administration

—Office of the Chief Clerk, Senate

—Office of the Chief Clerk, House

—Pennsylvania Department of Transportation

The garage in Forum Place contains approximately 1,482 spaces. The leases require 1,310 parking spaces for the tenants. The remaining spaces are either leased on a monthly basis to the Commonwealth, businesses, or individuals, or are available for daily parking including those who may visit the Commonwealth’s offices.

Riverfront Office Center

—Pennsylvania Department of Transportation

—Pennsylvania Human Relations Commission

—United States Department of the Treasury

—Pennsylvania Board of Probation and Parole

—Pennsylvania Board of Finance and Revenue

Riverfront Office Center’s garage, the three surface parking lots and roadside parking total approximately 1,230 spaces. The leases require approximately 902 parking spaces for the building’s tenants. The remaining spaces either are leased on a monthly basis to the Commonwealth or businesses, or are made available to individual patrons of the lessees.

Both Forum Place and Riverfront Office Center were facilities wholly developed and constructed by private entrepreneurs and then leased to governmental entities. These private enterprises were assessed for real estate taxes, and in fact, paid real estate taxes for several years to Dauphin County and to the school district (Harrisburg School District) and municipality (City of Harrisburg) in which the properties were located. The authority then purchased both parcels at private sales and received an assignment of all of the leases. Basically, through the sale of the parcels, the lessees simply acquired a new landlord. There were no significant improvements to the properties after acquisition by the authority nor were the properties used or intended to be used for any other purpose than to house government offices.

The authority was able to finance its purchases through the use of tax-free bonds which required the authority to pay a rate of interest at 6 percent or less, whereas, at least at the time of appraisals of the properties, the mortgage interest rate available to a private investor was in the range of 7 1/2 percent to 7 3/4 percent. (N.T. 54.) Carl A. Fehrenbach, a Pennsylvania certified general appraiser, performed an appraisal for the authority prior to its purchase of the Riverfront Office Center. This court finds his evaluation notable. In rendering his professional opinion, Mr. Fehrenbach stated that the market value of the subject property was $39,000,000. He also opined that because of “the low and favorable interest rate available from the tax-free bond market,” coupled with the lack of obligation to pay real estate taxes, the same property, under the ownership of the authority, had an investment value of $44,000,000. (N.T. at 60-61.) Investment value, as Mr. Fehrenbach defined, is “the specific value of an investment to a particular investor or class of investors based on individual investment requirements; as distinguished from market value that is impersonal and detached.” (N.T. 58-59.)

DISCUSSION

In the instant case, the board maintains that the authority acted outside of its authorized governmental purpose and in competition with private enterprise by acquiring the properties, thereby creating competitive enterprises that are neither immune nor exempt from property tax. The authority counters that it not only acted within its authorized scope, it is not competing with private enterprise and is therefore immune from taxation. In the alternative, the authority argues that the properties are exempt from the payment of property taxes since they are public properties used for a public purpose.

The Municipality Authorities Act of 1945 sets forth the general purposes and powers for which any authority may be incorporated. 53 P.S. §306A.(a). However, within that same section, limitations are set forth. Specifically, the following is provided:

“(b) This section is subject to the following limitations: ...
“(2) The purpose and intent of this Act being to benefit the people of the Commonwealth by, among other things, increasing their commerce, health, safety and prosperity, and not to unnecessarily burden or interfere with existing business by the establishment of competitive enterprises, none of the powers granted by this Act shall be exercised in the construction, financing, improvement, maintenance, extension or operation of any project or projects or providing financing for insurance reserves which in whole or in part shall duplicate or compete with existing enterprises serving substantially the same purposes ....” 53 P.S. §306A.(b)(2). (emphasis added)

In order to decide the issue of the taxation of a municipal authority, this court will first distinguish between the terms “immunity” and “exemption,” words that often get confused and are frequently interchanged. In Bucks County Community College v. Bucks County Board of Assessment Appeals, 147 Pa. Commw. 505, 608 A.2d 622 (1992), the court found:

“[A]n exemption exists where the legislature acts affirmatively to remove, in a manner authorized by the constitution, property otherwise subject to taxation, while immunity exists because no specific power to tax this class of property has ever been delegated by the legislature to the particular taxing body.” BCCC v. Board of Assessment Appeals, 147 Pa. Commw. at 506 n.2, 608 A.2d at 623 n.2.

The Pennsylvania Supreme Court in Delaware County Solid Waste Authority v. Berks County Board of Assessment Appeals, 534 Pa. 81, 626 A.2d 528 (1993), addressed the issue of tax immunity of a municipal authority. In that case, the Boyerstown School District was attempting to impose a real estate tax on property owned by the Delaware County Solid Waste Authority. The Supreme Court held that an authority created pursuant to the Municipal Authorities Act is an independent agency of the Commonwealth and therefore is immune from taxation. “It is well settled that property owned by the Commonwealth and its agencies is beyond the taxing power of a political subdivision.” Delaware County Solid Waste Authority, 534 Pa. at 85, 626 A.2d at 531. It is only when an agency acts outside its authorized governmental purpose is its immunity not automatic. Id. at 87, 626 A.2d at 531.

The manner in which the properties were acquired in the case sub judice bears review. The private owners previously paying real estate taxes on these properties negotiated with the authority in unadvertised private sales not open to public bidding or participation. The day after the properties were sold, the parcels disappeared from the tax rolls simply because of the identity of the new owner, the Dauphin County General Authority. Under the peculiar circumstances of this case, this court finds that such private sales, while not prohibited by the Act, stifle competition from the private sector. Additionally, the private sales deprived the local governmental entities of any opportunity to encourage private enterprise to acquire the buildings through possible tax incentives rather than suffer the permanent loss of the properties from the tax rolls. This court finds that the actions of the authority are patently unfair to the local taxing bodies. County and municipal tax bases will continue to erode at the whim of the authority should the authority be permitted to purchase taxpaying properties housing offices of state government at private sales and operate them in the same manner as before the acquisitions with presumed tax-free standing as an instrumentality of the Commonwealth. Such depletion of the tax base remains a serious problem in Dauphin County, and in Harrisburg in particular, where the number of state government-owned properties is significantly disproportionate to privately owned real estate.

This court finds that such competitive behavior is not permitted based on section 306A.(b)(2) of the Municipality Authorities Act. As emphasized earlier, the intention of the law empowering the authority limits this type of practice. The purpose of the Act is “not to unnecessarily burden or interfere with existing businesses by the establishment of competitive enterprises . . . which in whole or in part shall duplicate or compete with existing enterprises serving substantially the same purposes....” This court recognizes the extraordinary edge the authority maintains over private enterprise in the Harrisburg area and it is this type of project engaged in by the authority that the Act seeks to limit. The recognition of that very limitation is acknowledged in paragraph 5 of the articles of incorporation of the authority, which states:

“(5) The authority is incorporated for the following purposes: The acquiring, holding, constructing, improving, maintaining and operating, owning, and leasing, either in the capacity of lessor or lessee, projects of the kind and character contemplated by law for a general purpose authority, as authorized and permitted by, and also as limited by the provisions of the Pennsylvania Municipality Authorities Act, the Act of May 2, 1945, P.L. 382, as amended, or as hereafter amended and supplemented.”

Testimony at the hearing before this court revealed that approximately 2.5 million square feet of office space throughout Dauphin County is leased to agencies of the Commonwealth. (N.T. 15-16.) Prior to the purchase by the authority of the two subject properties, approximately 95 percent of that leased office space was in the hands of “existing enterprises” which were part of the private sector and whose properties were subject to taxation by all real estate tax levying bodies in Dauphin County. (N.T. 22-23.) Only 5 percent of that leased space was declared immune or exempt from taxation as either being leased to the federal government or to Penn State University. (N.T. 29, 33, 36.)

After the authority purchased Forum Place and Riverfront Office Center, 617,628 square feet of Commonwealth-leased office space (or 25 percent of the total Commonwealth-leased space) was shifted from the hands of private taxpaying investors to the ownership of the authority, thereby dramatically reducing the total leased space owned by the private sector in Dauphin County. As previously noted, the major impact of such reduction falls heaviest on the City of Harrisburg and the Harrisburg School District, two entities whose tax base is already decimated by the plethora of state-owned properties within the city limits that are immune or exempt from property tax.

It is this type of “competition with existing enterprise” that the authority is engaging in which is strictly limited under the Act. Private enterprise must not only compete with the authority for the purpose of attracting agencies of the Commonwealth as tenants, but must also suffer the disadvantages discussed above. This court finds that because the authority’s leasing arrangement at the two properties unnecessarily interferes with existing private businesses through the establishment of such a competitive enterprise, and because the activity is in direct conflict with and outside the scope of the Municipal Authorities Act, the authority’s efforts to be granted immunity for its activities at Forum Place and the Riverfront Office Center must fail.

The authority contends that the board’s competition argument is improper because the board cannot show actual competition for the purchase and lease of the property, and further, that the acquisition and leasing of the properties are not activities that are subject to the anti-competition proviso of the Municipal Authorities Act. Under the facts of the instant case, requiring the board to show actual competition sets the bar too high. It would be nearly impossible for the board to present competition evidence in light of the private sales. Had the properties been advertised for sale and no interested buyers surfaced, the board’s position would have been severely weakened. What the board has effectively shown, however, is the virtual impossibility of any competition given the authority’s private purchases and its distinct advantages in financing and property tax immunity or exemption. Further, the board has clearly established active private sector involvement in the leasing of office space to state government in Harrisburg and Dauphin County.

The authority cites the case of Thompson Appeal, 427 Pa. 1, 233 A.2d 237 (1967) to support its contention that “acquisition” and “leasing” are not activities contemplated by the anti-competition proviso in the Act which states that there can be no competition in the “construction, financing, improvement, maintenance, extension or operation” of projects. 53 P.S. §306A.(b)(2). The court in Thompson Appeal indicated that the omission of the words “power to acquire and hold property” showed a legislative design that the proviso was not to be a restriction on an authority’s right to condemn. Thompson Appeal, 427 Pa. at 3, 233 A.2d at 239. However, this court finds a clear distinction between the facts in that case and those at issue in this matter.

In Thompson Appeal, a township airport authority sought to exercise its power of eminent domain to condemn land belonging to a private airport in order to construct a municipal airport facility. The main issue before the court was whether there was substantial evidence to justify the taking. The court held that the anti-competition proviso of the Act did not prohibit condemnation. Further, the court noted that the primary purpose of the proviso was to protect businesses that will be competing with the condemnor’s (authority’s) operation. Interestingly, the court commented that the authority’s proposed facility was a substantial improvement over the existing private airport. Unlike the instant case, Thompson Appeal did not involve an issue of tax immunity or exemption, the public benefit of the taking was apparent and competition with private enterprise was minimal, at best.

This court finds that the activities characterized by the words “acquisition” and “leasing” are intrinsic to the definitions of the words “construction,” “maintenance” and “operation” as included in the anti-competition proviso of the Act. To begin, under the Act, “project” is defined as follows:

“(j) The term ‘project’ shall mean . . . any structure, facility or undertaking which an authority is authorized to acquire, construct, finance, improve, maintain or operate, or provide financing for insurance reserves under the provisions of this Act, or any working capital which an authority is authorized to finance under the provisions of this Act.” 53 P.S. §302(j). (emphasis added)

In addition, the definition for “construction” under the Act includes the term “acquisition.” 53 P.S. §302(e). Webster’s Ninth New Collegiate Dictionary includes business transactions in its definition of operation, and the definition of maintenance, meaning the act of maintaining, includes the upkeep of property or equipment. The authority purchased the properties, is responsible for the upkeep and maintenance of the properties as owner and leases the properties to various tenants. The authority is, in essence, operating a business. It would be illogical to accept the authority’s argument that such transactions are not contemplated in the plain meaning of the anti-competition proviso of the Act. Therefore, the authority’s position is without merit.

Additionally, this court must examine the issue of public benefit. Implicit in any action of the authority is that they act “to benefit the people of the Commonwealth.” Testimony at the hearing revealed that the authority’s mission “is to benefit a governing municipal, state, local, county, help them fulfill their purposes.” (N.T. 104.) Further testimony indicated that the authority only spends its revenues for the health, welfare and recreation of the people of Dauphin County. (N.T. 120.)

However, this court has difficulty in discerning a public benefit for the authority’s actions in this case, either for the people of the Commonwealth or Dauphin County citizens. Forum Place and the Riverfront Office Center were constructed by private enterprise and occupied (leased) exclusively by Commonwealth agencies and departments. What public good was achieved by purchasing these sites at a private sale, thus removing them from the tax base, while continuing to lease the properties to the same state agencies? The best interests of the people of Harrisburg, Dauphin County or this Commonwealth are not served when a municipal authority removes property from the tax rolls for no apparent benefit or improvement, thereby eliminating a source of revenue for local government, and operates a business “serving substantially the same purposes” as the previous private enterprises.

Additionally, this court recognizes the municipal services agreement made between the authority and Dauphin County that provides for the annual payment in lieu of taxes by the authority to the county. Such payments are to be made after other payments, including but not limited to, all operating expenses pertaining to each property, debt service upon the bonds and a replenishment of any amounts withdrawn from the debt service reserve fund. In effect, if the authority, in any given year, does not have enough money left over after satisfying all of its other obligations, the payment in lieu of taxes will not be made. This court finds that the subordinate nature of such an agreement does not satisfy the authority’s duty to pay taxes based on this court’s determination that the authority is not immune from taxes due to the limitations placed on it by the Act.

In the alternative, because this court finds that the authority is not immune from the payment of real estate taxes on these properties, the authority argues that it qualifies for tax exemption status as set forth in section 204 of the General County Assessment Law, 72 P.S. §5020-204. The law concerning exemption in this matter provides:

“(a) The following property shall be exempt from all county, city, borough, town, township, road, poor and school tax, to wit:
“(7) All other public property used for public purposes, with the ground thereto annexed and necessary for the occupancy and enjoyment of the same ...
“(b) Except as otherwise provided in clauses (11) and (13) of this section, all property, real or personal, other than that which is actually and regularly used and occupied for the purposes specified in this section, and all such property from which any income or revenue is derived, other than from recipients of the bounty of the institution or charity, shall be subject to taxation, except where exempted by law for state purposes and nothing herein contained shall exempt same therefrom.
“(c) Except as otherwise provided in clause (10) of this section, all property, real and personal, actually and regularly used and occupied for the purposes specified in this section shall be subject to taxation, unless the person or persons, associations or corporation, so using and occupying the same, shall be seized of the legal or equitable title in the realty and possessor of the personal property absolutely.” 72 P.S. §5020-204(a)(7), (b) & (c). (emphasis added)

The board initially maintains that the receipt of market-based rental income by the authority from its Commonwealth tenants renders the parcels subject to taxation under section 204(b) of the General County Assessment Law. The board contends that although the activities of the Commonwealth tenants constitute use of the properties for a public purpose, the exception applies since the authority is the owner of both parcels and is deriving income through its leases to the Comm on - wealth.

The board cites Appeal of Archdiocese of Philadelphia, 151 Pa. Commw. 480, 617 A.2d 821 (1992), to further its position. In that case, a former convent of the archdiocese of Philadelphia was denied tax exemption status by the Borough of Darby when it contracted a five-year lease agreement with the Delaware County Pro-Life Coalition for a rental of $12,000 per year. The Commonwealth Court agreed with the Borough of Darby and precluded exemption under section 204(b), reasoning that the section denies exemption to property which brings in any income or revenue other than from recipients of the bounty of the institution or charity. Appeal of Archdiocese, 150 Pa. Commw. at 485, 617 A.2d at 824. Similarly, in Berks County Board of Assessment and Revision of Taxes v. Berks County Conservancy, 102 Pa. Commw. 64, 517 A.2d 572 (1986), the Commonwealth Court held that for an exception to occur under section 204(c), the owner charity must both use and occupy the premises to qualify for tax exemption. The board also cites Young Men’s Christian Association v. Reading, 402 Pa. 592, 167 A.2d 469 (1961) and Greater Erie Economic Development Corporation Appeal, 61 Pa. Commw. 144, 433 A.2d 568 (1981) in support of its denial of exemption status to the authority.

However, there is a critical difference between the cases cited by the board and the case sub judice. In the cases where section 204(b) and (c) apply and exemption is denied, charities are the owners of the leased property. The issue in those cases was not public use but charitable use. Our legislature is specific that all public property used for public purposes is entitled to tax exemption. Further, the leasing of property and the receipt of rent will not defeat an exemption from local real estate taxes where public property is used for public purposes. Wesleyville Borough v. Erie County Board of Assessment Appeals, 676 A.2d 298 (Pa. Commw. 1996). The court in Wesleyville held that where the primary and principal use to which property is put is public, the mere fact that income is incidentally derived from the use of the property does not affect its character as property devoted to a public use. Id. at 302, citing Moon Township Appeal, 425 Pa. 578, 229 A.2d 890 (1967). Therefore, the court found that the leasing of properties and the receipt of rent by municipalities does not defeat exemption from local real estate taxes. Id. at 304.

At first blush, it would appear that Forum Place and Riverfront Office Center are exempt from real estate taxation under 72 P.S. §5020-204(a)(7) and the holding in Wesleyville. The authority leases the properties in question and the government entities that lease them use the facilities for public purposes consistent with Wesleyville. In Wesleyville, the court commented that the key issue in the dispute was whether the properties were being used for a public purpose. One of the properties was purchased by the Borough of Wesleyville and leased to Erie County for use as a district justice’s office. The second property was part of the McKean Borough Hall and leased to the county for a district justice’s office. The court noted that the properties at issue were clearly public properties. Wesleyville, 676 A.2d at 303.

However, in the cases now before this court, a distinction exists. So long as properties are acquired, maintained and operated by the authority in conformance with the Act, they are indeed public property, and, as such, exempt from property tax. On the other hand, if the authority acts outside its scope of authority, in an “ultra vires” fashion, the properties can no longer be considered “public property,” and exemption under the General County Assessment Law must fail.

This court finds that since the authority functioned in a way adverse to the purpose and intent of the Act so as to compete with existing enterprise, and further acted contrary to the benefit of the people of the Commonwealth, the properties in question cannot be deemed “public property.” Therefore, the authority is not afforded tax exemption on these properties by virtue of having exceeded its authorized powers.

Accordingly, the following is entered:

ORDER

And now, December 15, 1999, it is hereby ordered that the appeal of the Dauphin County General Authority is denied. The parcel located at 555 Walnut Street, Harrisburg (Forum Place) is neither immune nor exempt from the payment of real estate taxes.

ORDER

And now, December 15, 1999, it is hereby ordered that the appeal of the Dauphin County General Authority is denied. The parcel located at 1101 South Front Street, Harrisburg (Riverfront Office Center) is neither immune nor exempt from the payment of real estate taxes.

      . The only nongovernmental tenant of either property is an automatic teller machine located at the Forum Place and leased to Dauphin National Bank. Its occupancy accounts for approximately 500 square feet of net leasable area, constituting approximately one-tenth of 1 percent of the square footage of the Forum Place.


source: Caselaw Access Project

author: KLEINFELTER, P.J.,

license: Public Domain

text:
    McNaughton v. Amsden

      C.P. of Dauphin County,
    no. 934 S 1999.

      Bryan S. Walk, for plaintiff.

      Barry A. Kronthal, for defendant.
    April 24, 2000
   KLEINFELTER, P.J.,

Before the court are the preliminary objections of defendant Larissa D. Amsden to plaintiff Ernest McNaughton’s amended complaint alleging negligence and battery. Also for disposition is McNaughton’s preliminary objection to Amsden’s preliminary objections.

On March 2, 1997, McNaughton sustained injuries after Amsden allegedly struck him while driving her Ford Explorer near her residence along Potato Valley Road. McNaughton had gone to Amsden’s house to pick up his grandson and claims that Amsden deliberately ran him down.

McNaughton commenced this action by filing a praecipe for writ of summons on March 2,1999, the date of expiry of the statute of limitations. However, McNaughton admittedly served Amsden with a certified copy by first-class mail rather than by sheriff as required by Pa.R.C.P. 400. On March 3, 1999, Amsden received the writ and, on May 14, 1999, issued a rule upon McNaughton to file a complaint. McNaughton filed a complaint on July 15, 1999, and received preliminary objections on July 21,1999, to the form of service, specificity of the pleading, and to McNaughton’s punitive damages claim. When he learned of the objection to service of process, McNaughton had the complaint reinstated and properly served upon Amsden on August 12,1999.

In response to Amsden’s preliminary objections, McNaughton filed an amended complaint on August 31, 1999, which contains averments of negligence and battery, plus a claim for punitive damages. Amsden again responded with preliminary objections on September 20, 1999, to which McNaughton brought preliminary objections to Amsden’s preliminary objections on November 1, 1999. The court heard oral argument on February 10, 2000, and both sets of preliminary objections are now ready for disposition.

Amsden brings three preliminary objections. First is an objection in the form of a motion to dismiss McNaughton’s cause of action for improper service of the writ of summons pursuant to Pa.R.C.R 1028(a)(1). Next, Amsden brings a motion to strike paragraphs 9(e) and 9(g) of McNaughton’s amended complaint for insufficient specificity as required by Pa.R.C.R 1028(a)(3). Finally, Amsden brings a preliminary objection in the form of a motion to strike McNaughton’s punitive damages claim for failure to conform to law or rule of court (Pa.R.C.P. 1028(a)(2)), or, alternatively, for failure to state a claim upon which relief may be granted (demurrer). Pa.R.C.P. 1028(a)(4).

McNaughton brings but one preliminary objection to Amsden’s preliminary objections. Specifically, McNaughton objects to Amsden’s objection to service of the writ as an improper attempt to raise a statute of limitation defense, which is proper only when pled under new matter. This may be quickly resolved since a preliminary objection to service of process is quite proper under Pa.R.C.P. 1028(a)(1). Any statute of limitations issue here is merely ancillary to an objection to the form of service of process and requires us to overrule McNaughton’s objection.

We are now left with Amsden’s preliminary objections, and we begin with the service of process issue. Amsden contends that because service of the writ of summons was improper and that the proper service that did occur was after the expiration of the statute of limitations, McNaughton’s action should be dismissed. In her brief, Amsden asks us to examine her objection to service under the doctrine espoused in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), regarding the effect of improper service of a writ of summons upon the tolling of a statute of limitations.

Lamp states the following:

“Our purpose is to avoid the situation in which a plaintiff can bring an action, but, by not making a good-faith effort to notify a defendant, retain exclusive control of it for a period in excess of that of the statute of limitations.
“Accordingly,... we rule henceforth, [that]... a writ of summons shall remain effective to commence an action only if the plaintiff . . . refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” Lamp, 469 Pa. at 478, 366 A.2d at 889. (citation omitted)

The most recent case in which our Supreme Court provided insight into the Lamp decision was Farinacci v. Beaver County Industrial Development, 510 Pa. 589, 511 A.2d 757 (1986). In Farinacci, the court emphasized the good faith requirement within the context of the Lamp rule itself, in that its purpose is to prevent exclusive control by the plaintiff of an action beyond the statute of limitations.

Additional guidance in interpreting the Lamp decision is provided by our Superior Court:

“Our review of the Lamp decision reveals that the Supreme Court clearly intended to abrogate the potential for abuse in cases where the issuance of a writ of summons tolls the statute of limitations. On the other hand, we also interpret Lamp as not intending its effect to be the punishment of those who make a good-faith effort to comply with the local rules. This interpretation necessitates a case-by-case analysis of the applicability of Lamp....
“We do not interpret the rule in Lamp as automatically binding upon those who find themselves in violation of their local rule regarding service regardless of the surrounding circumstances.” Jacob v. New Kensington Y.M.C.A., 312 Pa. Super. 533, 538, 459 A.2d 350, 352 (1983). (footnote omitted)
“What is to be gleaned from Lamp and its progeny is that: (1) one’s ‘good faith’ effort to notify a defendant of the institution of a lawsuit is to be assessed on a case-by-case basis; and (2) the thrust of all inquiry is one of whether a plaintiff engaged in a ‘course of conduct’ forestalling the legal machinery put in motion by his/her filings. . . . Further, we do not read Lamp, and the cases interpreting and applying it, to espouse a mechanical approach to the ‘good faith’ effort rule such that it allows for no exceptions in the face of an explanation and/ or conduct which evidences an unintended deviation from the ‘notice’ requirement.” Leidich v. Franklin, 394 Pa. Super. 302, 311, 575 A.2d 914, 918 (1990). (citations omitted)

Leidich v. Franklin, supra, is especially enlightening, not only for its factual similarity to this case, but also because it is a reversal of a decision issued by our court. Leidich was an automobile collision case where the plaintiff received a writ of summons from the prothonotary on the last day of the statute of limitations, and served it upon the defendant the following day via first-class mail. Since service was not effected by the sheriff, this court deemed the plaintiff to have not acted in good faith compliance with Lamp, and granted the defendants’ motion for judgment on the pleadings. Our decision reflected a strict interpretation of Lamp as requiring exact compliance with procedural rules governing service of a writ of summons. On appeal, the Superior Court rejected our interpretation of the Lamp doctrine, which had applied a mechanical and universal dismissal of any action where the writ of summons was not properly served according to procedurally exacting standards.

In light of Leidich and subsequent precedent, we are not inclined to implement such an interpretation of Lamp instantly. Indeed, the case before us involves facts substantially similar. McNaughton commenced his cause of action by writ of summons on March 2, 1999, and mailed it to Amsden, who received it the following day. This is identical to the events in Leidich. Although service of process by mail is plainly in violation of Pa.R.C.P. 400, Leidich instructs us not to apply mechanical rules, but to employ a case-by-case analysis. Here, McNaughton attempted to serve Amsden, albeit incorrectly, on the same day he received the writ of summons. He also immediately served his complaint in compliance with Pa.R.C.P. 400 upon Amsden’s objection to service. We therefore fail to see how McNaughton forestalled the legal machinery he put into motion.

We also note Pa.R.C.P. 126:

“The rules [of procedure] shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not effect the substantial rights of the parties.” See Leidich, supra.

We do not view Amsden’s rights substantially prejudiced by our decision. Amsden had actual notice of McNaughton’s action through the mailed process and thereafter initiated appropriate responsive pleadings. Therefore, Amsden suffered no unfair surprise after the statute of limitations had run. Fulco v. Shaffer, 455 Pa. Super. 30, 686 A.2d 1330 (1996).

We now turn our attention to Amsden’s next preliminary objection. Amsden argues that paragraphs 9(e) and (g) of McNaughton’s amended complaint should be stricken for insufficient specificity of the pleadings. Paragraphs 9(e) and (g) read as follows:

“(9) The impact of the defendant’s vehicle with the plaintiff and the resultant injuries to plaintiff were the direct and proximate result of the negligence of the defendant as follows:
“(e) Failing to operate her vehicle in a careful and prudent manner with due regard for a person in the position of plaintiff on the highway;
“(g) Operating her truck in a careless and negligent manner which brought the truck into forcible and violent contact with the plaintiff, causing him to sustain injury.”

Pa.R.C.P. 1019(a) provides: “[t]he material facts on which a cause of action or defense is based shall be stated in concise and summary form.” The purpose, therefore, of a sufficiently specific pleading is to provide sufficient clarity in the pleadings to allow the defendant to prepare a defense. Paz v. Commonwealth of Pennsylvania, Department of Corrections, 135 Pa. Commw. 162, 170-71, 580 A.2d 452, 456 (1990). In addition, our Supreme Court in Seaman v. Tamaqua National Bank, 280 Pa. 124, 127, 124 A. 323 (1924), ruled that an ambiguous complaint does not justify throwing the plaintiff out of court “without affording him opportunity to make it clear.” While we agree that the pleading here lacks specificity, we are inclined to grant McNaughton leave to amend his complaint.

Finally, Amsden raises a demurrer on the basis that there are no facts in McNaughton’s complaint to support intentional or reckless conduct as required to support a claim for punitive damages. In her pleading, Amsden initially raises a preliminary objection for failure of McNaughton’s pleading to conform to law or rale of court under Pa.R.C.P. 1028(2) and brings her demurrer in the alternative. However, since she only discussed the demurrer in her brief, we dispose of her objection accordingly.

Without passing on the merits of the claim for punitive damages, we have consistently held that such a claim does not set forth a cause of action in and of itself. Therefore, it is not the proper object of a demurrer. See Todd v. Burnquist, 116 Dauphin Rep. 383 (1996); Majid v. Vartan, 114 Dauphin Rep. 351 (1994). Thus, Amsden’s demurrer in this context is overruled.

ORDER

(1) Defendant’s preliminary objection to plaintiff’s service of process is overruled;

(2) Defendant’s preliminary objection to plaintiff’s insufficient specificity in paragraphs 9(e) and (g) of the amended complaint is sustained; however, this court grants plaintiff 20 days to amend the amended complaint;

And now, April 24, 2000, upon consideration of defendant Larissa D. Amsden’s preliminary objections to plaintiff Ernest McNaughton’s amended complaint, and upon consideration of plaintiff’s preliminary objection to defendant’s preliminary objections, the following is hereby ordered:

(3) Defendant’s demurrer to plaintiff’s claim of punitive damages is overruled;

(4) Defendant’s preliminary objection to plaintiff’s preliminary objection is overruled.


author: STRASSBURGER, J.,

text:
    Fialla-Bertani v. Pennysaver Publications of Pennsylvania Inc.

      C.P. of Allegheny County,
    G.D. no. 97-9322.

      Michael Jansen, for plaintiff.

      James A. Prozzi, for defendant.
    March 15, 2000
   STRASSBURGER, J.,

On June 17, 1997, plaintiff, Sharyn Fialla-Bertani, instituted this action by filing a complaint alleging that her employer, Pennysaver Publications of Pennsylvania Inc., owed her wages, in the form of an earned bonus, pursuant to the Wage Payment and Collection Law. 43 P.S. §260.1-260.12. On August 25, 1997, defendant terminated plaintiff’s employment. As a result, plaintiff filed an amended complaint alleging that she was discharged in retaliation for filing her WPCL claim. This matter has come before me on defendant’s motion for summary judgment.

Summary judgment is appropriate where there are no genuine issues of material fact allowing the court to make a determination as a matter of law. Pa.R.C.P. 1035.2. In ruling on a motion for summary judgment, the facts must be viewed in the light most favorable to the non-moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996).

1. THE WAGE PAYMENT AND COLLECTION LAW CLAIM

The WPCL provides employees with a statutory remedy to collect wages that are due from their employers. 43 P.S. §260.3. Here, plaintiff alleged that she was entitled to bonus money in 1995 pursuant to a compensation agreement. Defendant denies that such an agreement existed in 1995.

The employment relationship between plaintiff and defendant commenced in February 1993, when plaintiff was hired as a telemarketing sales manager. (Complaint ¶8.) In this capacity, plaintiff earned a salary and performance bonuses, both monthly and yearly, under the terms of a written compensation plan. (Def. brief exhibit B— Bertani depo. exhibit 2.) A new written compensation plan was issued in 1994. It, too, entitled plaintiff to a salary and performance bonuses. (Def. brief exhibit B— Bertani depo. exhibit 3.) However, defendant claims that in February 1995, plaintiff was demoted resulting in a cancellation of her right to a bonus in 1995. (Def. brief p. 4.) Apparently, there was no written compensation plan issued for 1995.

Defendant argues that the absence of a 1995 written compensation plan is conclusive evidence that a plan providing performance bonuses did not exist. In support of this contention, defendant offers affidavits of Pennysaver employees. Plaintiff, on the other hand, claims that the plans “rolled over” from year to year. In support of this contention, plaintiff points to the fact that the written plans did not specify an end date.

Defendant’s affidavits of its representatives are not sufficient to prove the absence of a 1995 compensation agreement. See Nanty-Glo Boro. v. American Surety Co. of New York, 309 Pa. 236, 238, 163 A. 523 (1932). Therefore, whether plaintiff was under a compensation plan which entitled her to earn performance bonuses in 1995 is a genuine issue of fact precluding summary judgment on the WPCL claim.

Furthermore, plaintiff points out: (1) Defendant claims that plaintiff was demoted in February 1995; and (2) the 1994 compensation plan had a review date of March 1, 1995. These facts are sufficient to defeat summary judgment regarding plaintiff’s entitlement to a bonus for the two months prior to the alleged demotion, January and February 1995.

H. THE WRONGFUL DISCHARGE CLAIM

In September 1995, plaintiff was replaced as telemarketing sales manager. (Complaint ¶8.) In December 1995, plaintiff was reprimanded at a meeting with Mr. Weaver, the vice president of telemarketing, and Gene Carr, the vice president of sales and marketing for defendant’s parent company. (Def. brief exhibit B— Bertani depo. exhibit 8.) At that meeting, plaintiff contends that she made the first of numerous demands for payment of her 1995 performance bonus. (PI. brief, exhibit 11, p. 214.) The record demonstrates that plaintiff’s demands for payment were followed with negative employment related events including reprimands and recommendations of discharge.

On June 5,1997, plaintiff was reprimanded and threatened with termination if she did not show improvement by mid-July. (PI. brief, exhibit 1, p. 30.) On June 17, 1997, plaintiff filed her complaint in this matter. Then, on July 29, 1997 and July 30, 1997, plaintiff received disciplinary counseling from Mr. Weaver. (PI. brief, exhibit 1, pp. 34-39.) On August 25, 1997, defendant terminated plaintiff’s employment. (First amended complaint ¶15.) Plaintiff amended her complaint on November 20,1997, alleging that she was terminated in retaliation for filing her WPCL action.

The timing of events presents a question of fact as to whether plaintiff was fired in retaliation for filing a WPCL claim. The issue in this case is whether Pennsylvania recognizes a cause of action for wrongful discharge of employment in retaliation against an employee for filing a WPCL action. This issue has not yet been determined by our appellate courts.

In Pennsylvania, the employee-employer relationship is at-will. Shick v. Shirey, 552 Pa. 590, 594, 716 A.2d 1231, 1233 (1998). This means that, generally, either party is free to terminate the employment at any time, for any reason. Shick, 552 Pa. at 595, 716 A.2d at 1233. However, there are public policy exceptions to the at-will employment doctrine. For instance, an employer may not terminate employment in retaliation for an employee’s filing of a workers’ compensation claim. Id. at 604, 716 A.2d at 1237. Nor may the employment relationship be terminated in retaliation for an employee’s filing of an unemployment compensation claim. Highhouse v. Avery Transportation, 443 Pa. Super. 120, 660 A.2d 1374 (1995). As stated in Highhouse, “the courts have consistently held that employers violate the public policy of this Commonwealth by discharging employees for exercising legal rights.” Highhouse, 443 Pa. Super. at 126, 660 A.2d at 1377.

Defendant argues that there is no public policy protecting employees who attempt to collect wages under the WPCL from being terminated because they filed a lawsuit. In support of this argument, defendant relies upon Booth v. McDonnell Douglas Truck Services Inc., 401 Pa. Super. 234, 585 A.2d 24 (1991). In Booth, an employee sought commissions from his employer. Booth, 401 Pa. Super. at 237, 585 A.2d at 25. The employer disputed that the commissions were owed to the employee, cut back the employee’s responsibilities and ultimately terminated the employment relationship. Id. Afterward, the employee filed a lawsuit alleging, inter aha, that he was wrongfully discharged for seeking commissions which were due to him. Id.

On those facts, the Pennsylvania Superior Court determined that, though public policy protected a person’s right to enforce a contract, the discharge of employment did not foreclose the employee from seeking to enforce his contract. Booth, 401 Pa. Super. at 238, 585 A.2d at 28. Therefore, the employee did not demonstrate a public policy exception to the at-will employment doctrine. Id.

The facts of this case are distinguishable. Here, plaintiff was discharged after exercising her legal right to file an action at law to resolve her WPCL claim. In Booth, to the contrary, the employee was discharged by his employer before he filed a lawsuit. The crucial distinction: here, if plaintiff’s allegation is true, she was fired for exercising her right to have her dispute resolved in a court of law.

Plaintiff points out that if a person can be terminated because she files a legal action to resolve a wage claim, there will be a chilling effect on those who seek to protect their right to collect wages. I agree. A claim pursuant to the WPCL is substantially similar to a workers’ compensation claim. Both claims provide a statutory remedy by which an employee may seek redress for wrongs committed by the employer.

The essence of Shick is that public policy prohibits an employer from terminating an employee as punishment for that employee’s exercising a statutory remedy against the employer. Just as the Pennsylvania Supreme Court has determined that there is a strong public policy favoring an employee’s right to be compensated for work-related injuries, see Shick, 552 Pa. at 603-604, 716 A.2d at 1237, there is also a strong public policy in favor of an employee’s right to receive the wages that her employer promised to pay. Thus, in this case, plaintiff has alleged a valid cause of action — wrongful discharge in retaliation against an employee who files a lawsuit to collect wages under the WPCL. As a result, summary judgment is inappropriate in light of the factual dispute on the record.

Finally, defendant has asserted that, even if a public policy exception to the at-will employment doctrine exists, it is still entitled to summary judgment because it had a separate, plausible and legitimate reason for firing plaintiff based upon her alleged performance deficiencies. Whether this is true or not is a question of fact which will have to be resolved at trial.

ORDER

And now, March 15, 2000, it is hereby ordered that defendant’s motion for summary judgment is denied.


author: MINORA, J.,

text:
    Martin v. McAndrew

      C.P. of Lackawanna County,
    nos. 93 CV 1917 and 93 CV 2418.

      Thomas J. Foley Jr, for plaintiffs.

      Thomas Comerford, Jay Gebauer and John Durkin, for defendants.
    February 2, 2000
   MINORA, J.,

FACTUAL BACKGROUND

Presently before the court is a medical malpractice claim wherein the plaintiffs are seeking discovery of information regarding defendant Dr. Larkin from two non-party hospitals, deponents Community Medical Center, Lackawanna County, Pennsylvania and Moses Taylor Hospital also of Scranton.

Plaintiff, Warren Martin, had been a patient of Dr. Patrick McAndrew since October 8, 1976. Dr. McAndrew saw him periodically throughout the time period for complaints of dizziness, which increased toward April of 1991. The plaintiff, Warren Martin, had a history of hypertension for several years, as well as hypercholesterolemia. In addition, the Martin family history is strongly positive for vascular disease. The plaintiff also had symptoms that were compatible with, and indicative of, carotid artery stenosis, which Dr. McAndrew allegedly failed to investigate. Notwithstanding his complaints, Dr. McAndrew continued to see the plaintiff, but left him untreated.

In April of 1991, it was discovered that the plaintiff had a complete occlusion of the right internal carotid artery and 90 percent occlusion of the left carotid artery. On May 6,1991, the plaintiff underwent elective carotid endarterectomy of the left internal carotid artery by Dr. Vincent Larkin at St. Joseph’s Hospital.

Dr. Larkin is alleged to have negligently performed the plaintiff’s surgery and incorrectly ordered medication. Shortly after the surgery ended and the plaintiff was transferred to the ICU, his neurological status began to deteriorate and he was returned to surgery for a second time. An exploratory thrombectomy of the left carotid artery was performed, which revealed a blood clot. During this procedure, Dr. Larkin used a shunt and had the effectiveness of the heparin doses monitored by repeated PTTs and performed an interoperative angiogram. As a result, the plaintiff suffered a stroke and severe brain damage, which has left the right side of his body paralyzed and without feeling. Additionally, he suffers from severe cognitive difficulties.

Plaintiff, Warren Martin, brought a cause of action for his injuries and plaintiff, Charlotte Martin, brought a claim for the loss of her husband’s society, companionship and consortium that resulted from the alleged negligence committed by the defendants in this action.

Plaintiffs and Community Medical Center have engaged in a constructive dialogue and amicably resolved a number of discovery requests, while Moses Taylor Hospital has not been nearly so constructive in their approach to the outstanding discovery requests. Therefore, it becomes this court’s responsibility to review in camera the disputed documents and then to apply the governing legal principles to those documents in order to determine their discoverability.

LEGAL DISCUSSION

The “Peer Review Protection Act,” 63 P.S. §425.1 et seq., specifically 63 P.S. §425.4, has spawned a great deal of litigation which attempts to flesh out its parameters and define its extent and limitations.

Two appellate cases have spoken to these issues. The most recent of the appellate cases, Young v. Western Pennsylvania Hospital, 722 A.2d 153 (Pa. Super. 1998), deals with “original” documents discoverable under the Peer Review Protection Act. The next case, McClellan v. Health Maintenance Organization of Pennsylvania, 546 Pa. 463, 686 A.2d 801 (1996), is a Supreme Court case wherein an evenly divided court ultimately affirmed the Superior Court, due to its inability to achieve a majority opinion. Both of the appellate cases, coupled with significant common pleas opinions, gave this court great guidance in deciding which of these in camera records submissions should be protected by peer review and which should not be afforded the protection.

Further, the Court of Common Pleas of Lycoming County has also addressed the interplay between Discovery Rule 4009.12(b)(2) of the Pennsylvania Rules of Civil Procedure and the Peer Review Protection Act, 63 P.S. §425.4. In the case of Wein v. Williamsport Hospital, 20 Lycoming Rep. 418 (1998), the court ruled that Rule 4009.12(b)(2) does not conflict with 63 P.S. §425.4, the Peer Review Protection Act, when the rule requires a party withholding documents to identify them with particularity and explain why they are not discoverable, while the Act merely prohibits disclosures of procedures and records of the review committee itself. The court concluded that an in camera review is a device available to resolve legitimate disputes regarding whether discovery should be compelled.

In the case of Johnson v. Tray, 43 D.&C.4th 129 (Fulton Cty. 1999), the court decided that a plaintiff may discover information that was presented to a peer review committee if such information is available from other sources. The rationale for the court’s decision was clear. “If it were enough that this information was discussed at peer review, any type of information or statistical data, regardless of its significance, relevance or necessity could not be considered discoverable if merely mentioned or discussed in the setting of a peer review meeting.”

The rationale as articulated is clear. Any type of data or information, no matter how probative or relevant, could be rendered beyond all legitimate discovery as opposed to admissibility, merely by bringing it up in the context of a peer review meeting. This type of sanitation and/or insulation of relevant, material, probative data or data that could lead to discoverable data simply could not have been contemplated by the Peer Review Protection Act, 63 P.S. §425.4, especially when viewed in conjunction with Pa.R.C.P. 4009.12(b)(2).

Therefore, if such information is traditionally available from other sources outside of peer review, then such information should remain discoverable despite its presentation to peer review.

In accord with the view of Judge Walker as expressed in Johnson v. Tray, supra, are two common pleas cases, one from Pittsburgh and one from Philadelphia. In Philadelphia, in the case of Pitts v. The Children’s Hospital of Philadelphia (C.P. Philadelphia, July 7, 1999) Bernstein, J., the judge ordered St. Luke’s Hospital, a non-party hospital, to produce applications for staff privileges of Dr. Theodore Mahoske. This is highly analogous to our case wherein discovery is being sought from non-party hospitals.

In Pitts, the hospital refused to divulge the documents, claiming a privilege under the Peer Review Protection Act, supra. The court rejected this argument, noting that the Peer Review Protection Act specifically does not extend its privilege to materials otherwise available from other sources merely because they were presented in committee. This is consistent with Johnson v. Tray, supra; however, the Pitts opinion goes on to state that any performance evaluations prepared solely for the purposes of peer review were protected and not discoverable so long as they were used only for peer review purposes.

Credential applications or applications for staff privileges were discoverable for essentially three reasons. First, the credential or staff privileges applications were not prepared solely for peer review purposes; and second, these applications contain information readily available from other sources and are obtained in the ordinary course of business. Finally, it was thought that no guarantee of confidentiality is required for the hospital to obtain complete and accurate information on these types of applications.

For all these reasons, third party hospital staff privileges or credential applications were deemed discoverable in this Pitts case, which is analogous to our case sub judice.

In reaching the mling in the Pitts case, Judge Bernstein found a ruling by Judge Wettick of the Court of Common Pleas in Pittsburgh to be controlling. In the case of Lindsay v. Bosta (C.P. Allegheny Cty., March 10, 1999) Wettick, J., the court faced precisely the same issue.

Wettick concluded that materials relating to a hospital’s credentialing process are discoverable when it consists of information obtained in the hospital’s ordinary course of business.

Wettick’s opinion further instructed that the hospital can delete parts of an application that it feels are confidential as long as it describes the type of information deleted so that the opposing party can challenge it.

Further, in Lindsay, supra, the court declared discoverable: the names of the members of the peer review committee; information about whether peer review was conducted regarding any treatment this party received and any information concerning whether the hospital has a formal written policy as to what a physician in a given hospital department can or cannot do.

Viewing the facts of this case in the legal context above outlined, it becomes abundantly clear that certain of these materials are discoverable. While the cases cited herein are written by fellow court of common pleas judges, this court finds their logic, rationale and consistency to be persuasive.

Furthermore, there are some appellate court cases which offer guidance consistent with the above. In the case of Atkins v. Pottstown Memorial Medical Center, 430 Pa. Super. 279, 634 A.2d 258 (1993), a patient brought suit against the hospital for injuries he suffered when he fell after he had been administered preoperative shots. The theory was that the hospital employee was negligent in allowing the patient to go to the bathroom after the shots had been administered. The jury found negligence but no substantial factor. Further, the court’s exclusion of an incident report was deemed to be harmless error as it should not have been held to be peer review material.

The Superior Court held that a risk manager may not be a review organization under the Peer Review Act, but went on to say that even if they were, “Th[e] document contained information ‘. . . available from [other] sources.’ ” Atkins, supra at 283, 634 A.2d at 260, and, as such, it fell into the exception and was therefore not protected.

Additionally, in Young v. The Western Pennsylvania Hospital and Richard Liposky D.M.D., 722 A.2d 153 (Pa. Super. 1998), the Superior Court reviewed a case wherein a patient brought a negligence action against an oral surgeon and hospital contending that the surgeon erroneously informed her of the need to remove dental implants which had never been implanted in her. Further, there was a direct negligence count against the hospital for negligently granting privileges to the oral surgeon.

In that case, the Superior Court upheld the trial court which ordered discovery only of “original documents” which are always discoverable under the Peer Review Protection Act and further stated that documents used in the determination of staff privileges are exactly the type of documents the legislature contemplated when drafting the Peer Review Protection Act, 63 P.S. §§425.1-425.4.

This case, much like our own, involved a discovery request made by the plaintiff against a third party non-defendant hospital deponent. In Young, supra at 156, the Superior Court stated, “Documents used in the determination of staff privileges are exactly the type of documents the legislature contemplated when drafting the Peer Review Protection Act. Granting, limiting, or revoking of staff privileges is one of the strongest tools the medical profession uses to protect itself.”

Moving forward with this premise, we now know that the granting, extending or revoking of staff privileges is peer review protected. We must now review the documents to determine if they fall into the original documents’ exception to peer review, thereby making them open to discovery under 63 P.S. §§425.1-425.4, or whether they are business records exceptions under Bosta, supra.

Using these guidelines, the court finds as follows regarding the catalog of hospital files provided by Moses Taylor Hospital: D=discoverable; PR=peer review. Similarly, see the inventory of Dr. Vincent Larkin’s credential file from Community Medical Center, which is likewise marked.

An appropriate order follows.

And now, to wit, February 2, 2000, it is hereby ordered that the discovery requests propounded by plaintiff be responded to by both Community Medical Center and Moses Taylor Hospital per the index enclosed as a part of this opinion.

ORDER

CATALOG OF HOSPITAL FILES FROM MOSES TAYLOR HOSPITAL

I. Credential File:

Document Date

D — 1. Application for appointment to the medical staff (without delineation of privileges) November 5, 1979

D — 2. Application for appointment to the medical staff (with delineation of privileges) March 4,1982

PR — 3. Letter to Dr. Larkin from James Kinney, hospital administrator August 22,1982

D — 4. Annual reappointment application for medical staff privileges (4)

(without delineation of privileges) 1984

1985

1986

1987

PR — 5. Letter to Dr. Larkin from James Kinney, hospital administration August 8, 1986

PR — 6. Letter from Dr. Stavitsky to Dr. Larkin June 11, 1986

PR — 7. Letter from Dr. Larkin to hospital December 19, 1986

PR — 8. Letters between Dr. Larkin and James Kinney (5) December 17, 1986 to February 17, 1987

[Off staff January 1, 1988 to July 23, 1990]

June 7, 1989 D — 9. Letter from James Kinney to Dr. Larkin

November 27, 1989 D — 10. New application for appointment to medical staff (with delineations)

Support documentation:

January 11, 1990 PR — a. Letter from Dr. Stavitsky to Charles Bannon

Undated PR — b. Reply from Dr. Bannon to Dr. Stavitsky with delineation of privileges at Mercy Hospital

January 11, 1990 PR — c. Letter from Dr. Stavitsky to Dr. Nese at CMC

February 12, 1990 PR — d. Reply Dr. Nese to Dr. Stavitsky

Undated PR — e. Report on privileges

March 20, 1990 PR — f. Letter from Dr. Stavitsky to Dr. Larkin

May 21, 1990 PR — g. Letter from Dr. Stavitsky to Dr. Larkin

June 13, 1990 PR — h. Letter from Irene Foley to Dr. Larkin

April 9, 1990 PR — i. Letter from Dr. Larkin to Dr. Stavitsky

July 24, 1990 PR — j. Letter from James Kinney to Dr. Larkin with delineation for privileges

PR — 11. Letter from James Kinney to Dr. Larkin re transit staff status with confidential performance profile attached (Internal use only) September 24, 1991

D — 12. Date bank query September 30, 1991

PR — 13. Letter from James Kinney to Dr. Larkin September 25, 1991

D — 14. Reappointment application for staff privileges (3)

D — (1) with delineations, and June 24,1993

D — (2) Health form and (3) Date bank information, and July 12, 1995

D — (4) Malpractice information December 5, 1997

PR — 15. Supplemental request by Dr. Larkin for additional privileges with supporting documentation November 17, 1995

PR — a. Letter from Mid Valley Hospital

PR — b. Letter from Mercy Hospital

PR — c. Letter from Marion Community

PR — d. Letter from Dr. Larkin to Dr. Morgan

PR — e. Approved letter from Harold Anderson to Dr. Larkin February 29, 1996

D — 16. Physician acknowledgment statement re billing (10 statements) October 1, 1984-

October 1, 1993

D — 17. Radiation safety form (6 forms) 1990-1997

D — 18. Questionnaire from Health South ■ April 22, 1997

D — 19. Questionnaire from HMO of North Eastern PA March 24,1992

D — 20. Questionnaire from Penn State/Geisinger November 10, 1997

D — 21. Letter from Dr. Morgan to: “To who it may concern’ re privileges granted by Moses Taylor Hospital (2) April 6,1998 July 1, 1998

D — 22. Copy of malpractice insurance (current)

D — 23. AMA certificate

D — 24. Copy of board certification certificate

II. Peer Review File: Objection to Disclosure of Contents of Entire File

Document Date

D — 1. One report February 29, 1996

D — 2. One report August 20,1996

D — 3. One report August 22, 1996

D — 4. One report December 31, 1996

INVENTORY OF DR. VINCENT LARKIN’S CREDENTIAL FILE FROM COMMUNITY MEDICAL CENTER

(1) Letter dated March 18, 1998, from Saadeddine Hijazi M.D., director of surgery, Community Medical Center, confirming Dr. Larkin as member of medical staff at Community Medical Center with active staff privileges in general and vascular surgery including carotid endarterectomy without restrictions since December 10, 1979. — 1 page

(2) Letter dated December 17, 1997, from Mark A. McGurrin M.D., CMC medical director of the vascular laboratory, to Dr. Larkin regarding participation on physician panel to read vascular studies. — 1 page

(3) Letter dated February 9, 1998, from Dr. Larkin to Saadeddine Hijazi M.D. regarding return from sick leave. — 1 page

(4) Health attestation dated February 2, 1998, signed by Dennis J. Kondash D.O. approving Dr. Larkin. — 1 page

(5) Letter dated January 14, 1998, from Dr. Larkin to Joseph Demko M.D., vice president of medical affairs, regarding copy of 1998 malpractice insurance coverage and return to surgical practice. — 1 page

(6) 1998 declaration sheet of Dr. Larkin’s insurance coverage with Pennsylvania Medical Society Liability Insurance Company. — 1 page

(7) Letter dated August 22,1997, from Joseph Demko M.D. to Dr. Larkin regarding cancellation of agreement for medical director of non-invasive laboratory. — 1 page

(8) Letter dated December 30,1997, from Saadeddine Hijazi M.D. to Dr. Larkin regarding Dr. Mark McGurrin’s assumption of position as director of vascular surgery at CMC. — 1 page

(9) Internal Community Medical Center memorandum from Saadeddine Hijazi M.D. to Dr. Larkin regarding review of Community Medical Center privilege forms.— 1 page

(10) Letter dated October 16, 1997, from Attorney Lawrence S. Markowitz to Barbara Bossi, hospital administrator, CMC, regarding Dr. Larkin’s position as medical director of the vascular laboratory. — 2 pages

(11) Letter dated October 26,1979, from Constantine Papdopoulos M.D. to John C. Sanner M.D., medical director of CMC, regarding recommendation of Dr. Larkin. — 1 page

(12) Letter dated August 24,1979, from John C. Sanner M.D., vice president for medical affairs, to Constantine Papdopoulos M.D., Brooklyn Hospital, regarding request for recommendation of Dr. Larkin. — 1 page

(13) Letter dated April 22,1991, from William J. Black M.D., vice president, medical affairs, to Dr. Larkin regarding reappointment to medical staff at CMC. — 1 page

PR* (14) Review of qualifications and ability of Dr. Larkin by Anthony J. Nese, director of surgery at Community Medical Center, dated December 2, 1990. — 3 pages

(15) Application of Dr. Larkin for reappointment to active staff of Community Medical Center dated June 20, 1990. — 4 pages

(16) Community Medical Center general surgical control sheet dated July 6, 1990 and December 2,1990, respectively. — 3 pages

PR* (17) Community Medical Center physician reappraisal profile. — 2 pages and undated

PR* (18) 1987-1989 peer review of patient procedures, performed by Vincent Larkin M.D. — 4 pages

(19) Certification of completion of upper gastrointestinal endoscopy post graduate course dated October 16,1986 from American Institute of Medical Education and Research. — 1 page

(20) Certification of completion of post graduate course entitled “Techniques of Esophagogastroduodenoscopy” from American Institute of Medical Education and Research dated October 15,1986. — 1 page

(21) Certification of completion of post graduate course at Albert Einstein College of Medicine, September 18-23, 1989 entitled “Surgery Board Review.” — 1 page

(22) Certification of completion of laser course at Thorek Hospital, Chicago, Illinois titled “Laser Laparoscopic Cholecystectomy” dated June 26-27, 1990. — 1 page

PR* (23) Letter dated July 5, 1990, from Daniel M. McNabb M.D. to Community Medical Center regarding Dr. Larkin’s employment at Carbondale General Hospital since 1992. — 1 page

(24) Health attestation form dated 6/21/90.

(25) Dr. Larkin’s certification of the American Board of Surgery dated October 13,1989 reaffirming Dr. Larkin as qualified in the practice and specialty of surgery. — 1 page

(26) Commonwealth of Pennsylvania medical license issued December 15, 1998. — 1 page

(27) Controlled substances registration certificate issued February 24, 1988. — 1 page

(28) Declaration page of physician’s professional liability policy dated January 1, 1990. — 1 page

(29) Reappointment mechanism check list — undated. — 1 page

(30) Application for reappointment to medical staff and renewal privileges dated September 23, 1980. — 2 pages

(31) Community Medical Center surgical control sheet. — 2 pages

(32) Community Medical Center surgical control sheet dated October 10, 1980 — 1 page

(33) Letter dated November 30, 1988 from John C. Sanner M.D., vice president of medical affairs, to Dr. Larkin regarding reappointment to medical staff for 1988-1990 — 1 page

(34) Community Medical Center recommendation of credentials review committee. — 3 pages

(35) Reappointment mechanisms check list — undated. — 1 page

(36) Letter dated October 26, 1998 from John C. Sanner M.D., vice president of medical affairs, to Vincent Larkin M.D., regarding completion of application for reappointment. — 1 page

(37) Health attestation form — date illegible. — 1 page

PR* (38) Physician reappraisal profile 1986-1987.— 1 page

D* (39) Application for reappointment dated July 4, 1988. — 4 pages

(40) Letter dated November 8, 1988 from Dr. Larkin to John C. Sanner M.D. regarding completion of medical staff application. — 1 page

(41) Controlled substances registration certificate issued February 24, 1988. — 1 page

(42) Surgical control sheet dated July 8, 1988. — 2 pages

(43) Letter dated October 28, 1986, from John C. Sanner M.D., vice president, medical affairs, to Dr. Larkin regarding reappointment to active staff. — 1 page

(44) Application for reappointment to medical staff dated September 16, 1986. — 1 page

PR* (45) Review of qualifications and activities of Vincent Larkin M.D. dated October 6, 1986. — 1 page

(46) Surgical control sheet dated October 6,1986. — 1 page

PR* (47) Physician reappraisal profile dated 1984-1985. — 1 page

D* (48) Undated memorandum, no recipient listed concerning 1984 malpractice case. — 1 page

(49) Declaration sheet, physician’s insurance company policy October 1,1986 through October 1,1987. — 1 page

(50) Health attestation form dated October 14,1986.— 1 page

(51) Controlled substances registration certificate issued April 23, 1986. — 1 page

(52) Commonwealth of Pennsylvania medical license issued December 31, 1986 — 1 page

(53) Letter dated December 12, 1984 from John C. Sanner M.D. to Dr. Larkin regarding reappointment to medical staff. — 1 page

(54) Application for reappointment to medical staff dated September 19, 1984. — -1 page

(55) Review of Dr. Larkin’s medical staff activities dated November 11, 1984. — 1 page

(56) Surgical control sheet dated November 16, 1984. — 1 page

(57) Declaration page of Pennsylvania Medical Society Liability Insurance Company — policy period January 1, 1984 to January 1, 1985. — 1 page

D* (58) Undated handwritten note to Dr. John Sanner regarding settlement of lawsuit. — 1 page

(59) Letter dated October 29, 1982 from John C. Sanner M.D. to Dr. Larkin regarding reappointment to medical staff for staff year 1982-1984 — 1 page

(60) Reappointment to medical staff for staff year 1982-1984. — 2 pages

(61) Surgical control sheet dated April 19, 1982. — 2 pages

(62) Community Medical Center physician reappraisal profile. — 2 pages

(63) Letter dated November 26, 1979 from John C. Sanner M.D. to Dr. Larkin regarding appointment to courtesy staff at CMC. — 1 page

(64) Surgical control sheet dated June 19, 1992. — 2 pages

(65) Blank request for ventilator care privileges — unsigned and undated. — 1 page

(66) Letter dated May 21,1993, from David T. Richards M.D., vice president, medical affairs, to Dr. Larkin regarding recredentialing for staff year 1992-1994. — 1 page

PR* (67) Surgery Department director’s assessment and report on Vincent Larkin M.D. dated 10/30/92. — 3 pages

PR* (68) Community Medical Center physician reappraisal profile for Dr. Larkin, 1990-1991. — 1 page

(69) Community Medical Center reappointment mechanism — undated.—1 page

(70) Request for reappointment of clinical privileges dated June 19, 1992. — 5 pages

D* (71) Memorandum dated June 17,1992, undesignated as to recipient, regarding pending lawsuit. — 1 page

(72) Coversheet complaint. — 1 page

(73) Health attestation dated June 29, 1992. — 1 page

(74) Letter dated July 17,1992 from Saadeddine Hijazi M.D. to Dr. Sheer regarding Dr. Larkin’s surgical practice at CMC. — 1 page

PR* (75) Review of professional abilities of Dr. Larkin, undated. — 3 pages

(76) Undated summary of continuing education credits. — 1 page

(77) American Medical Association certificate regarding completion of continuing medical education dated 1992 through 1995. — 1 page

(78) Letter dated July 18, 1990 from Carol Warner, secretary of continuing medical education, to Dr. Larkin regarding credits accumulated to date. — 1 page

(79) Certification of completion of seminar in surgical techniques from Colby College dated July 17-20, 1990. — 1 page

(80) Certificate of completion — Arizona Heart Institute seminar in vascular laser surgery dated October 16-18, 1990. — 1 page

(81) Application form for seminar in new ambulatory medical, surgical and laser techniques applicable to venous disorders dated October 25, 1990. — 1 page

(82) Certification of completion of continuing medical education in practical colorectal surgery, November 16-17, 1990. — 1 page

(83) Certificate of completion from Harvard Medical School regarding seminar on angioscopy and endovascular surgery dated December 10-12, 1990. — 1 page

(84) Letter from American College of Surgeons regarding participation in surgical education program earning 85 credit hours. — 1 page

(85) Letter dated July 30, 1991, from Carol Warner, secretary of continuing medical education, regarding number of credit hours towards physician’s recognition award. — 1 page

(86) Certification of completion of symposium on vascular surgery. — 1 page

(87) Employment agreement dated March 3,1997 regarding services as medical director of the vascular laboratory. — 8 pages

(88) Letter dated July 2, 1997, from Joseph Demko M.D., vice president, medical affairs, to Dr. Larkin regarding vascular surgery reading panel.

(89) Letter dated June 23, 1997, from Dr. Larkin to Joseph Demko M.D., vice president, medical affairs, regarding vascular laboratory reading panel.

(90) Letter dated May 5,1997, from Saadeddine Hijazi M.D., Department of Surgery, to Dr. Larkin regarding the scheduling with radiology department. — 1 page

(91) Letter dated March 19, 1997, from Saadeddine Hijazi M.D. to Dr. Larkin regarding appointment to role as chief of vascular surgery at CMC. — 1 page

(92) Undated letter from Joseph Demko M.D., vice president, medical affairs, to Dr. Larkin regarding signature on contract for medical director of vascular lab position.

(93) Undated letter from Joseph Demko M.D., vice president, medical affairs, to Philip Boccagno M.D. regarding Dr. Larkin’s signature on contract.

(94) Certification of completion of continuing education in techniques in interventional radiology and techniques in vascular and endovascular surgery from Albert Einstein College of Medicine dated November 20-24, 1996.

(95) Application for appointment to the medical staff dated July 30,1979.

(96) Letter dated January 9, 1997, from Eugene Chiavacci M.D., chairman, medical executive committee, to Dr Larkin regarding report on vascular laboratory cases.

(97) Letter dated September 12, 1995, from Anthony J. Nese M.D., director, Department of Surgery, to Dr. Larkin regarding assignment of unassigned laboratory cases.

(98) Letter dated June 11, 1996, from Dianne Winters, medical staff coordinator, to Dr. Larkin regarding radiology privileges.

(99) Confidential risk quality work sheet dated October 15, 1995.

(100) Letter dated September 21,1995, from Dr. Larkin and James Roche M.D. to Anthony J. Nese M.D., director, Department of Surgery, regarding scheduling of cases in operating room.

(101) Letter dated January 2, 1996, from Anthony J. Nese M.D., director, Department of Surgery, to Dr. Larkin regarding assumption of role as chief of vascular surgery.

(102) Letter dated November 29,1994, from Anthony J. Nese M.D., director, Department of Surgery, to Dr. Larkin regarding assumption of role as chief of vascular surgery.

(103) Recommendations for vascular surgical department director undated. — 1 page

(104) Letter dated November 29,1994, from Anthony J. Nese M.D., director, Department of Surgery, to David T. Richards M.D., vice president, medical affairs, regarding appointment of physicians for leadership positions within Department of Surgery.

(105) Letter dated October 10, 1995, from Dianne Winters, medical staff coordinator, regarding confirmation of Dr. Larkin as having staff privileges at Department of Surgery since 1979.

(106) Letter dated July 14,1994, from Anthony J. Nese M.D., director, Department of Surgery, to Dr. Larkin regarding assignment as director of vascular surgery.

(107) Letter dated October 18,1990, from Anthony J. Nese M.D., director, Department of Surgery, regarding prerequisites for application for vascular surgical privileges.

(108) Letter dated November 23,1993, from Vincent Larkin M.D., to David Richards M.D., vice president, medical affairs, regarding duties as director of vascular laboratory.

(109) Internal CMC memorandum from David T. Richards M.D., vice president, medical affairs, to John Goodnow, executive vice president and chief executive officer of Community Medical Center, dated July 13, 1993, regarding lease of diagnostic duplex imager. — 1 page

(110) Letter dated July 12, 1993, from David T. Richards M.D., vice president of medical affairs, to Dr. Larkin regarding position as chief for non-invasive vascular laboratory. — 1 page

(111) Letter dated June 21, 1993, from David T. Richards M.D., vice president of medical affairs, to Dr. Larkin regarding position as chief for non-invasive vascular laboratory. — 2 pages

(112) Letter dated June 21, 1993, from David T. Richards M.D., vice president, medical affairs, to Dr. Larkin regarding rental of equipment for vascular laboratory and invoice. — 2 pages

(113) Letter dated April 7, 1993, from Sister Jean Coughlin to Anthony J. Nese M.D. regarding performance of procedures at Marion Community Hospital since 1989. — 1 page

(114) Letter dated July 13, 1992, from Dr. David T. Richards, vice president, medical affairs, to Dr. Larkin regarding vascular surgery laboratory. — 2 pages

(115) Letter dated March 10, 1993, from Anthony J. Nese M.D., director, Department of Surgery, to Jean Deecki R.N., regarding Dr. Larkin’s credentials to use Nd:YAG laser. — 1 page

(116) Letter dated December 9, 1991, from Anthony J. Nese M.D., director, Department of Surgery, to Dr. Larkin reviewing grant of privileges in endovascular procedures. — 1 page

(117) Letter dated November 27,1991, from Dr. Larkin to Dr. Nese regarding application for privileges to include intraluminal arthrectomy and vascular endoscopy. — 1 page

(118) St. Joseph Hospital’s brochure regarding rotary arthrectomy. — 1 page

(119) Internal memorandum from Anthony J. Nese M.D. to William A. Black, vice president, medical affairs, regarding grant of temporary privileges to Dr. Larkin for laparoscopic cholecystectomy. — 1 page

(120) Letter dated October 31, 1990, from Dr. Larkin to Dr. Nese regarding request for privileges to perform laser laparoscopic cholecystectomy. — 1 page

(121) Letter dated November 7,1990, from Sister Jean Coughlin, executor director, St. Joseph’s Hospital, to Dr. Nese regarding Dr. Larkin’s application for privileges and laparoscopic cholecystectomy. — 1 page

(122) Letter dated December 7, 1992, from Anthony J. Nese M.D. to Randall W. Snyder M.D., director, gastrointestinal laboratory, regarding Dr. Larkin’s training and experience with regard to PEG 2 procedures. — 1 page

(123) Review and itemization of procedures performed by Dr. Larkin at Community Medical Center. — 1 page (undated)

(124) Letter dated November 10,1992, from Anthony J. Nese M.D., director, Department of Surgery, to Dr. Larkin regarding request of privileges for colonoscopy procedures. — 1 page

PR* (125) Confidential physician’s checklist. — 1 page

(126) Letter dated March 10, 1992, from Thomas Baumann M.D., medical director, HMO of Northeastern PA, regarding participation of Dr. Larkin to William Black Jr. M.D., medical director, Community Medical Center. — 1 page

(127) Specialist application from HMO of Northeastern PA regarding application to panel of physicians dated December 23, 1991. — 1 page

(128) Internal memorandum from Anthony J. Nese M.D. to Betty Klansek R.N. and Sherry Fotte R.N. regarding surgeons with laser laparoscopic cholecystectomy surgical privileges. — 1 page

(129) Internal memorandum from Anthony J. Nese M.D. to Betty Klansek R.N. and Sherry Fotte R.N. regarding surgeons with laser laparoscopic cholecystectomy surgical procedures dated February 7, 1992. — 1 page

(130) Controlled substances registration certificate issued March 1, 1991. — 1 page

(131) Commonwealth of Pennsylvania license issued December 18, 1990. — 1 page

(132) Declaration page physician’s professional liability policy for policy period January 1,1991 through January 1, 1992. — 1 page

(133) Internal memorandum dated November 211990, from Anthony J. Nese M.D. to William Black M.D. regarding review of Dr. Larkin’s credentials for laparoscopic cholecystectomy. — 1 page

(134) Letter dated October 31, 1990, from Dr Larkin to Anthony J. Nese regarding request for privileges for laser laparoscopic cholecystectomy.- — -1 page

(135) Telephone message from Dianne Winters to Donna Lewis dated August 3, 1990 regarding lawsuit against Dr. Hijazi.

(136) Letter dated April 25,1990, from the American Board of Surgery to Diane Baggott, medical staff coordinator, regarding Dr. Larkin’s certification by American Board of Surgery. — 1 page

(137) Memo concerning corrections and/or additions to professionals and/or residents mailing address. — 1 page

(138) Letter dated April 10,1990, from Diane Baggott, medical staff coordinator, to Dr. Larkin regarding update of individual records. — 1 page

(139) Letter dated April 2,1990, from Diane Baggott to American Board of Surgery regarding verification of certification by American Board of Surgery. — 1 page

(140) Letter dated April 4,1990, from Diane Baggott to Anthony J. Nese M.D. regarding grant of temporary privileges to Dr. Larkin for YAG laser. — 1 page

(141) Letter dated September 25,1989, from Dr. Larkin to Bernard Rosenfeld M.D., chairman, laser committee, regarding procedure with YAG laser. — 1 page

(142) Letter dated October 9,1986, from Dr Larkin to John C. Sanner M.D. regarding request for privileges in laser surgery at CMC. — 1 page

(143) Certification of completion, The Institute for Applied Laser Surgery Inc., dated September 19-21, 1986. — 5 pages

PR* (144) Letter dated February 12, 1990, from Anthony J. Nese M.D. to Eli Stavitsky D.D.S., chairman, credential committee, Moses Taylor Hospital, regarding Dr. Larkin’s privileges at CMC. — 1 page

PR* (145) Letter from Eli Stavitsky D.D.S., chairman, credentials committee, to Dr. Nese regarding Dr. Larkin’s application for medical staff membership (with delineation of privileges). — 6 pages

(146) Declaration page physician’s professional liability policy with policy period January 1,1990 to January 1, 1991. — 1 page

D* (147) Internal Community Medical Center memorandum from Betty Klansek R.N. to John C. Sanner M.D., vice president, medical affairs, regarding number of bronchoscopic procedures performed by Dr. Larkin. — 1 page

(148) Minutes of meeting of laser committee — December 1987. — 1 page

(149) Community Medical Center internal memorandum from Diane Baggott, medical staff coordinator, to Betty Klansek R.N., surgical services, regarding Dr. Larkin’s supplementation of information regarding YAG laser privileges. — -1 page

(150) Letter dated September 19, 1989, from Diane Baggott, medical staff coordinator, to Dr. Larkin regarding supplementation of information regarding YAG laser procedure. — 1 page

(151) Letter dated January 12, 1987, from Edwin S. Malloy M.D., director, Department of Surgery, to Bernard Rosenfeld M.D., verification of Dr. Larkin’s completion of Philadelphia laser workshop. — 1 page

(152) Letter dated October 29, 1986, from John C. Sanner M.D., vice president medical affairs, to Edwin S. Malloy M.D., director, Department of Surgery, regarding Dr. Larkin’s letter requesting privileges in laser surgery. — 1 page

(153) Internal memorandum to laser committee from Edwin S. Malloy, director, Department of Surgery, dated September 11, 1987, regarding review of qualifications of Dr. Larkin. — 1 page

(154) Letter dated November 4, 1987, from Vincent Larkin M.D. to John C. Sanner M.D. regarding status of request for laser privileges at Community Medical Center. — 1 page

(155) Internal memorandum dated November 7,1989, from Diane Baggott, medical staff coordinator, to Betty Klansek R.N., coordinator of surgical services, regarding temporary privileges to Dr. Larkin for use of YAG laser. — 1 page

(156) Letter dated February 2,1989, from William A. Black Jr. M.D., vice president, medical affairs, to Dr. Larkin requesting current copies of DEA certificate, Pennsylvania state license and malpractice insurance.— 1 page

(157) Commonwealth of Pennsylvania license issued December 15, 1988. — 1 page

(158) Declaration page from physicians insurance company for policy period January 1,1989 to January 1, 1990. — 1 page

(159) Internal memorandum dated January 2, 1989, from Marlene Milford R.N., tumor registrar, to Vincent Larkin M.D. regarding continuing medical education credit hours earned to date. — 1 page

(160) Letter dated May 1, 1988, from Dr. Larkin to Dr. Edwin Malloy, director of surgery, regarding presentation of credentials to medical board for formal approval for performance of non-invasive vascular studies. — 2 pages

(161) Letter dated June 28,1988, from John C. Sanner M.D., vice president, medical affairs, to Dr. Larkin regarding grant of privileges for use of YAG and C02 laser. — 1 page

(162) Letter dated February 16, 1988, from Diane Baggott, medical staff coordinator, to Dr. Larkin regarding attendance at staff and department meetings. — 1 page

(163) Declaration page of professional liability policy with policy period January 1,1988 to January 1,1989.— 1 page

D* (164) Letter dated August 4, 1987, from John C. Sanner M.D., vice president, medical affairs, to Dr. Larkin regarding chart completion, admitting privileges, consulting privileges and elective surgical privileges. — 1 page

D* (165) Letter dated July 29, 1987, from John C. Sanner M.D., vice president medical affairs, to Dr. Larkin regarding chart completion, admitting privileges, consulting privileges and elective surgical privileges. — 1 page

(166) Controlled substances registration certificate issued March 25, 1987. — 1 page

(167) Commonwealth of Pennsylvania medical license issued January 14, 1987. — 1 page

(168) Letter dated October 29, 1986, from John C. Sanner M.D. to Edwin S. Malloy M.D., director, department of surgery, regarding Dr. Larkin’s request for laser surgery privileges. — 1 page

(169) Letter dated July 7,1986, from Patrick J. Ferraro M.D., chairman, trauma team, to Dr. Larkin regarding recruitment of thoracic surgeon to trauma team. — 1 page

(170) Letter dated April 7, 1986, from William Black M.D., medical director, to Dr. Larkin regarding physician’s assistant and applicable rules and regulations. — 2 pages.

(171) Certificate indicating completion of community medical education requirements dated January 19, 1986. — 2 pages.

(172) Controlled substances registration certificate issued April 23, 1986. — 1 page

(173) Physician’s professional liability insurance policy, including declaration page and summary of premiums with policy period for 1985. — 5 pages.

(174) Letter dated January 16,1986, from William A. Black M.D., medical director, to Dr. Larkin regarding placement of vascular laboratory under Department of Surgery. — 1 page

D* (175) February 5,1985 correspondence from Frank A. Milani M.D. to Dr. Larkin regarding patient chart review. — 2 pages

(176) Commonwealth of Pennsylvania medical license issued December 14, 1984. — 1 page

(177) Letter dated May 18,1984, from John C. Sanner M.D., vice president, medical affairs, to Dr. Larkin regarding request for credentials for use of flexible colonoscope. — 1 page

(178) Letter dated October 23, 1984, from John C. Sanner M.D. to Dr. Larkin regarding reappointment to medical staff. — 1 page

(179) Letter dated July 6, 1984, from Susan C. Landgon to Dr. Larkin regarding accumulation of credit hours towards physicians recognition award and continuing medical education requirements. — 1 page

(180) Letter dated May 23, 1984, from Michael J. Turock M.D., president of the medical staff, to Dr. Larkin regarding development of subcommittee on ventilator care. — 1 page

(181) Letter dated April 10, 1984, from Patrick J. Ferraro M.D., director of critical care, to Dr. Larkin regarding credentials for ventilator care, by critical care committee. — 1 page

(182) Letter dated April 4, 1983, from Adrian Samojlowitz, president, Community Medical Center, to Frank Padberg M.D., American College of Surgeons, regarding status of Dr. Larkin. — 1 page

(183) Letter dated June 23,1980, from John C. Sanner M.D. to Dr. Larkin regarding transfer from the courtesy staff to the active staff. — 1 page

(184) Memorandum dated May 27, 1980, from Dr. Larkin to William A. Steinbach M.D., director, department of surgery, requesting transfer from courtesy staff to active staff. — 1 page

(185) Letter dated January 22, 1980, from Henry A. Yeager M.D., chairman, committee on nutritional support, to Dr. Larkin regarding grant of temporary privileges to committee on nutritional support. — 1 page

(186) Letter dated July 22,1980, from John C. Sanner M.D. to Dr. Larkin regarding certification by American Board of Surgery. — 1 page

(187) Letter dated October 8, 1979, from William A. Steinbach M.D., director, Department of Surgery, to John C. Sanner M.D. regarding credentials of Dr. Larkin. — 1 page

(188) Memo dated October 2, 1979, from John C. Sanner M.D., vice president, medical affairs, regarding grant of temporary privileges to Dr. Larkin. — 1 page

(189) Letter dated September 18, 1979, from John C. Sanner M.D. to Robert L. Lambert M.D., medical director, Pennsylvania Hospital Insurance Company, regarding qualifications of Dr. Larkin. — 1 page

(190) Memorandum dated September 18,1979, to operating room supervisor regarding Dr. Larkin’s assistance of Dr. Ferraro. — 1 page

PR* (191) Letter dated November 8, 1979, from Donald E. Klotz M.D., director, surgical training program, of the New York Down State Medical Center, regarding evaluation and opinions concerning qualifications of Dr. Larkin. — 2 pages.

PR* (192) Letter dated October 30, 1979, from Irving Enquist M.D., director, surgical services, The Methodist Hospital, Brooklyn, to John C. Sanner M.D. regarding evaluations and opinions concerning qualifications of Dr. Larkin. — 1 page

PR* (193) Letter dated August 24, 1979, from John C. Sanner M.D. to The Methodist Hospital regarding evaluation of Dr. Larkin. — 2 pages.

(194) Letter dated August 24, 1979, from John C. Sanner M.D. to Dr. Larkin regarding interview with Dr. William A. Steinbach, director, Department of Surgery.— 1 page

(195) Letter dated August 24, 1979, from John C. Sanner M.D. to The Methodist Hospital regarding evaluation of Dr. Larkin. — 1 page

(196) Letter dated September 24, 1979, from coordinator of house staff activities at King’s County Hospital to John C. Sanner M.D. regarding Dr. Larkin’s completion of internship. — 1 page

(197) Letter dated August 24, 1979, from John C. Sanner M.D. to chief of staff, University Hospital, regarding Dr. Larkin’s internship. — 1 page

(198) Letter dated September 4, 1979, from David Kaplan M.D., assistant dean, Down State Medical Center, to John C. Sanner M.D. regarding Dr. Larkin’s application for appointment to medical staff. — 1 page

(199) Letter dated August 24, 1979, from John C. Sanner M.D. to dean of medicine, State University at Down State Medical Center, regarding Dr. Larkin’s request for privileges. — 1 page

(200) Letter dated August 27, 1979, from John C. Sanner M.D. to Dr. Larkin requesting completion of surgical control sheet. — 1 page

(201) Letter dated October 19, 1982, from Patrick J. Ferraro M.D., director, critical care, to Dr. Larkin regarding trauma committee meeting. — 1 page

PR* (202) Confidential correspondence dated April 13,1982, from Randall Snyder M.D., president of medical staff, to William A. Steinbach M.D., director, department of surgery, regarding opinions and evaluation of cases of Dr. Vincent Larkin. — 1 page

(203) Letter dated July 18, 1983, from Jean Ann Simone to Dr. Larkin regarding itemization of continuing medical education credits. — 1 page

(204) Letter dated May 25, 1983, from Dr. Larkin to Patrick J. Ferraro, chairman, trauma committee, regarding resignation from trauma team. — 1 page

(205) Letter dated September 21, 1981, from John C. Sanner M.D. to Sister M. Ryan, administrator, St. Joseph’s Hospital, regarding a number of procedures performed by Dr. Larkin. — 1 page

PR* (206) Confidential correspondence dated March 10, 1982, from William A. Steinbach M.D. to John C. Sanner M.D. regarding review of Dr. Larkin. — 1 page

PR* (207) Review of procedures performed by Dr. Larkin — undated.—15 pages

(208) Internal Community Medical Center memorandum dated March 10, 1982, from Adrian J. Samojlowitz, president, Community Medical Center, to Randall W. Snyder M.D., president, medical staff, regarding section 2 of bylaws. — 1 page

(209) Internal memorandum dated March 12, 1982, from Randall Snyder M.D. to Dr. Larkin regarding committee appointment pursuant to medical staff bylaws.— 1 page

PR* (210) Confidential correspondence dated March 12, 1982, from Randall W. Snyder M.D. to Thomas Disilvio M.D. regarding review of Dr. Larkin. — 1 page

PR* (211) Confidential memorandum dated March 12, 1982 from Randall W. Snyder M.D. regarding review of procedures performed by Dr. Larkin. — 1 page

(212) Letter dated June 4,1980 from Karen Czarkowski, secretary, continuing medical education, to Dr. Larkin regarding itemization of continuing medical education credits. — 1 page

(213) Surgical control sheet dated October 5,1979.— 1 page