author: GRIM, P.J.,

text:
    Michalski v. Michalski

      Jaimee A. Dautrich, for plaintiff.

      David S. Sobotka, for defendant.
    November 21, 2006
   GRIM, P.J.,

Plaintiff, Bernard J. Michalski, appeals the order dated September 18,2006, that dismissed his exceptions to the report and recommendation of the support master and ordered him to pay defendant’s attorney fees of $1,500. This opinion is filed pursuant to Pa.R.A.P. 1925. The pertinent facts gleaned from the record are as follows.

The underlying support proceeding is for the support of the parties’ youngest child, Jamie Michalski, date of birth October 26, 1988. The child originally lived with defendant, Paula A. Michalski (Mother). Prior to a transfer of custody to him, plaintiff (Father) had built up substantial arrears. This was due to Father’s failure to notify the Domestic Relations section that he had received a lump sum Social Security disability payment.

After the transfer of primary physical custody from Mother to Father, Mother paid child support until the support order was suspended by order dated April 26, 2005, effective on October 26, 2004, the child’s 18th birthday. The support order was suspended due to the child’s attainment of majority and his lack of enrollment in high school due to his poor attendance. On December 13, 2004, the child was enrolled in night school, but he attended only sporadically.

The April 26,2005 order further provided for the retroactive reinstatement of the support order even though the child was older than 18, if he attended school regularly and provided proof thereof. The proof that was needed was certified copies of the child’s attendance records. The child was to have no more than two combined unexcused absences/late or tardy arrivals per quarter. Excused absences were to be documented by a treating physician’s statement or other clear evidence of good cause shown. Two consecutive quarters in which the unexcused absences/late or tardy arrivals limit was exceeded would result in the final suspension of the charging order. Mother was to have equal access to the school attendance records. No specific grade performance was required.

On the hearing date to determine if the child support order would be reinstated Father had no attendance records for the third and fourth quarters of the 2004-2005 school year. The 2005-2006 school year attendance records showed unexcused absences well in excess of the amount permitted under the April 2005 order. These records were provided by Mother. One excused absence was due to the child’s suspension from school. Father offered the child’s report cards to establish that the child might be permitted to graduate notwithstanding his poor attendance. The support master refused to permit the evidence because it was not compliant with the order.

Based on these facts, the support master recommended that no monthly charging order of support be reinstated, with a final suspension of the order effective October 26,2004. Any arrears in the parties’ reverse case are to be transferred and applied as a credit in the instant case. After a recalculation of the arrears/credit balance in this case, the amounts held in escrow were to be distributed to the parties pursuant to their interests. Any outstanding arrears in the case were to be paid at the rate of $100 per month.

Mother also requested that the support master award her counsel fees in the amount of $1,500 as a sanction for Father’s filing of frivolous and ridiculous pleadings. On November 30,2004, Father had filed a pro se petition alleging that a change of circumstances had occurred in that Mother had failed to report earned income of $48,000 in 2003. The specific issues raised by Father’s petition to modify had been addressed by the undersigned in the opinion and order dated November 22,2004, which had dismissed Father’s exceptions. Father did not file an appeal to that order. Instead, he waited just eight days and filed his pro se petition. The support master denied Mother’s request for counsel fees without prejudice to Mother’s right to present the motion to the court. The support master did not believe that she had the authority to grant the request.

Mother reiterated her request for counsel fees to the court. Additionally, she argued that Father’s exceptions to the present recommendation are frivolous.

The court adopted the recommendation of the support master and granted Mother’s request for counsel fees. Father filed a timely appeal to this order.

On October 24, 2006, the court ordered Father to file a concise statement of matters complained of on appeal. Father never complied with this direction. The court submits that his failure to comply with this direction should be considered as a waiver of all his objections to the aforesaid order, and the appeal should be dismissed.

Assuming arguendo that the appeal is not dismissed due to Father’s noncompliance with Pa.R.A.P. 1925(b), the court shall now address the reasons for the dismissal of Father’s exceptions and the provision for the payment of counsel fees.

Father first contends that the support master abused her discretion in terminating support for the child on his 18th birthday because the child was consistently enrolled in a high school program from October 6, 2004, until June 2006. This contention is meritless.

The child did not attend any high school on a regular basis from the date of his birthday through February 2005, the last date for which the support master was provided attendance records. The order could have been reinstated if Father had complied with the order to bring certified copies of the child’s attendance records and if the child had actually attended school regularly. Father did not comply, and the child did not attend on a regular basis. Father confuses enrollment with attendance. To qualify for a support order beyond the age of 18, the child actually had to attend school regularly or have legitimate reasons for not doing so. The child did not attend and had no valid excuses for not doing so. Therefore, Mother should be released from her obligation to pay support.

Father complains that the support master erred and abused her discretion in terminating the support order on the child’s 18th birthday when the child lived with Father and received a diploma in June 2006. This exception is without merit.

It is a parent’s prerogative to allow a child to reside with the parent beyond the child’s 18th birthday, but the other parent has no duty to pay support for a child who has attained his majority. The child’s receipt of his diploma occurred after the close of testimony; therefore, the court could not consider it. Too, the receipt of a diploma does not mean that the child attended school daily.

Father argues that the support master erred and abused her discretion in finding that the child attended an evening high school program, when the child actually attended a day high school program. This exception is frivolous.

To have the order reinstated, it did not matter if the child attended a day or evening high school program. The record reflects that the child registered for the evening school program on December 13,2004. The support master further found that the child sporadically appeared at day school. The real issue is that the child did not regularly attend either day or evening high school.

Father next contends that the support master erred in recommending that any arrears that exist in the reverse case be transferred and applied as a credit in this case when the reverse case was not properly before the master for review. This exception is without merit.

The Domestic Relations section customarily checks all cases involving the same parties. If there is a huge amount of arrears owed to Mother by Father, it is only equitable that Father’s arrears be transferred and applied as a credit in the instant case; otherwise, Father would receive an undeserved windfall, and Mother would owe support when Father still owes prior outstanding arrears.

Father next submits that the support master erred in recommending that the amounts in escrow be distributed to the parties as there was a continuing obligation to support the child while he attended high school to the time that he received his diploma. This argument fails.

When a child reaches majority and has completed high school, the duty of the parent to support the child ends. The emancipation of a child, for purposes of the statute governing the support of a child, is a question of fact to be determined by the totality of the circumstances in each case.Nicholason v. Follweiler, 735 A.2d 1275 (Pa. Super. 1999).

In the case sub judice, the child was dropped from the high school program due to too many unexcused absences and/or tardiness reports. He was also over 18 years old. For those reasons, the support order was suspended effective on the child’s 18th birthday. In an abundance of caution and in an effort to have the child finish school, the order further provided that the support order could be reinstated if the child attended a high school program on a regular basis and provided proof thereof in the form of certified attendance records. The child enrolled in programs but did not attend on a regular basis. The child does not have health problems. If the child is 18 years old or older and not attending school, a parent owes no duty of support.

The only school attendance records that were supplied to the court show that this child did not miss school just occasionally or arrived late to school a few times, he did so chronically. In September 2005, the child had nine unexcused absences and four unexcused tardy reports. In October 2005, the child had four unexcused tardy reports and three excused absences for suspensions. In November 2005, he had two unexcused tardy reports and one excused absence for a suspension. In December 2005, he had five unexcused absences. In January 2006, he had one unexcused absence and three unexcused tardy reports. In February 2006, he had one unexcused absence and one unexcused tardy report. March 6,2006, the last day of the attendance records, shows that the child had an unexcused absence. Thus, from September 1, 2005, to March 6, 2006, this child had 17 unexcused absences, 14 unexcused tardy reports, and four days of suspensions.

The child’s academic records mirror his attendance records. The child received four Fs, one D, and one C- in the first quarter. In the second quarter the child attained an A in physical education and one B, one C, two Ds, and one D- in his scholastic subjects.

These records reflect those of a student who does not care and shows up when he feels like it. This is not a minor child but a 19-year-old adult who should have already graduated from high school. Since the child was not attending school on a regular basis, Mother should not owe a duty to support the child. For those reasons, the amounts held in escrow were ordered distributed to Mother.

Father complains that the support master erred and abused her discretion in refusing to consider any evidence offered by him. This complaint is meritless.

The hearing was to determine if the child regularly attended school. The proof of his attendance was to be shown by certified attendance records. Father had no attendance records. He wanted to present evidence that the child was enrolled in a high school program and that he was supposed to graduate in June 2006. That evidence would have been irrelevant and, therefore, was not admitted.

Father’s last contention is that the support master erred in refusing to speak to the child, despite the fact that the master required him to be present and miss school. This contention is without merit.

Father was not permitted to present irrelevant evidence. If he had presented the relevant evidence, presumably the child could have testified. Without the submission of the required records, there was nothing relevant the child had to offer. It is good that the child was finally going to graduate from high school, but that fact did not impact on Mother’s duty to support him at the age of 19 when he had already been terminated from a high school program earlier.

The court ordered counsel fees due to Father’s vexatious and obdurate conduct. In the case sub judice, Father’s only requirement was to supply the child’s attendance records. He did not do so. He wasted everyone’s time. When Father was not allowed to introduce the evidence that he wanted, he became so outraged that the support master adjourned the hearing. For those reasons, the court awarded attorney fees to Mother.

For the foregoing reasons, the court submits that its order dismissing Father’s exceptions and awarding counsel fees is not an abuse of discretion and that this appeal should be dismissed.


source: Caselaw Access Project

author: BERNSTEIN, J,

license: Public Domain

text:
    Haq v. Novak

      Richard A. Stoloff, for plaintiffs.

      DavidL. Rohde, for defendants.
    December 8, 2006
   BERNSTEIN, J,

FACTUAL BACKGROUND

On May 5, 2002, plaintiffs Mohammad Haq and Arjumand Haq, were injured in a car accident with defendant, Tony Novak. Mohammad Haq was driving his van with his wife, Arjumand Haq, in the front passenger seat. The plaintiffs had just driven through the toll booth on the Walt Whitman Bridge, heading from Pennsylvania to New Jersey, when they were forced to stop due to traffic. The portion of the bridge is located closer to Philadelphia than New Jersey. While at a complete stop, plaintiffs’ vehicle was hit in the rear by a vehicle owned and operated by the defendant. As a result of the collision, Mr. Haq sustained cervical disc protrusions which plaintiffs’ expert, Dr. Martin Kessler testified are “permanent in nature.” These injuries required Mr. Haq to have physical therapy and injections. Plaintiffs’ expert, Dr. Peter Corda, testified that Mrs. Haq suffered herniated discs with an annular tear requiring physical therapy, epidural steroid injections and a percutaneous discectomy via nucleoplasty. Dr. Corda further testified that these injuries are permanent.

In February 2005, plaintiffs’ counsel received, by mail, a copy of the interrogatories that they had sent to defense counsel for the defendant to answer. These inteiTogatories contained the defendant’s handwritten answers to each question along with a signed and dated verification by the defendant. Subsequently, plaintiffs’ counsel was sent a second set of interrogatory answers by defense counsel that was typewritten and also contained a verification. Some of the defendant’s answers to the typewritten interrogatory were different from those contained on the handwritten interrogatory. At trial, the defendant testified that the bumper of his car never made contact with the bumper of the plaintiffs’ vehicle, consistent with the answers he provided on the typewritten interrogatory, but different from the answers on the handwritten interrogatories. During cross-examination the defendant was asked if his answers to the handwritten interrogatory were true and he replied yes. The court also questioned the plaintiff as to the truthfulness of his handwritten answers and he confirmed, once again, that his answers were true. Plaintiffs’ counsel used the defendant’s answer in the handwritten interrogatory that his bumper had come into contact with the plaintiffs’ bumper.

PROCEDURAL HISTORY

Plaintiffs originally filed suit in the Superior Court of New Jersey on March 10, 2004. That suit was voluntarily dismissed by the plaintiffs when they filed a complaint in Philadelphia on April 27, 2004. On February 25, 2005, the defendant filed preliminary objections to the plaintiffs’ complaint arguing that the plaintiffs had failed to properly serve the defendant with the complaint and that Philadelphia County did not have jurisdiction over the matter. The plaintiffs filed an amended complaint on March 17, 2005, in response to the defendant’s preliminary objections. The defendant’s motion to determine preliminary objections was withdrawn as moot on March 28, 2005. On April 5, 2005, the defendant filed preliminary objections to the plaintiffs’ amended complaint, again alleging improper service and lack of jurisdiction. The plaintiffs’ response was filed on April 25, 2005 and on June 9, 2005, the defendant’s preliminary objections which had been filed on April 5, 2005 were denied.

On June 16,2005, the plaintiffs filed a second amended complaint that alleged further negligence on the part of the defendant. The defendant filed an answer to the second amended complaint on June 27, 2005 and filed new matter alleging that plaintiffs’ claim should: (1) be barred or subject to reduction by Pennsylvania’s Comparative Negligence Act, the New Jersey No Fault Act, the New Jersey Automobile Reparation Act, the New Jersey Comparative Negligence Act and the New Jersey Collateral Source Statute and (2) that the defendant asserts all the defenses available under the Pennsylvania Motor Vehicle Financial Responsibility Law and the New Jersey Motor Vehicle Code. The plaintiffs filed a reply on August 8, 2005.

Before trial began, plaintiffs’ counsel and defense counsel submitted proposed jury instructions and verdict sheets. The defendant failed to include any requests concerning limited tort in either his jury instructions or verdict sheet. The court submitted to the jury defendant’s requested verdict sheet by agreement of counsel. Defendant was given two separate opportunities to object to his own proposed verdict sheet and he failed to do so.

Trial began on December 9, 2005. During the trial, two plaintiffs’ experts testified as to the permanency of the injuries to the plaintiffs. Dr. Peter Corda, who treated plaintiff Arjumand Haq, testified that Ms. Haq suffered permanent injury as a result of the accident. Similarly, Dr. Martin Kessler, who treated plaintiff Mohammad Haq, testified that his injuries were “permanent in nature.”

The jury reached a verdict on December 13, 2005, finding for plaintiff Arjumand Haq in the amount of $175,000 and for plaintiff Mohammad Haq in the amount of $7,500. Defendant filed a motion for post-trial relief in the form of a judgment n.o.v. or a new trial on December 30, 2005, objecting to: (1) the court’s denial of the defendant’s motion to dismiss the plaintiffs’ complaint for failure to properly serve; (2) the court’s refusal to charge the jury on the plaintiffs’ tort option election; (3) the court charging the jury on the life expectancy of the plaintiffs; and (4) and the court’s ruling that the defendant’s handwritten interrogatory was not subject to the attorney-client privilege. On January 3,2006, the plaintiffs responded to the defendant’s motion for post-trial relief and on August 1,2006, the motion was denied. On August 18, 2006, judgment was entered in favor of the plaintiff on the verdict.

The issues raised on appeal are as follows: (1) whether this court erred in denying the defendant’s motion to dismiss for lack of jurisdiction; (2) whether this court erred in refusing to charge the jury on the plaintiffs’ tort option; (3) whether this court erred in ruling that the defendant’s handwritten interrogatory was not protected by the attorney-client privilege; (4) whether this court erred in giving instructions on the plaintiffs’ life expectancies; (5) whether the jury verdict was against the weight of the evidence; and (6) whether the jury verdict was disproportionately excessive.

DISCUSSION

1. Lack of Jurisdiction

Pennsylvania had proper jurisdiction to decide this controversy. Pa.R.C.P. 1006(a)(1) states that “an action against an individual may be brought in and only in a county in which ... the individual may be served or in which the cause of action arose ....” The statute found at 36 Pa.C.S. §3401 et seq. confirms that Pennsylvania and New Jersey entered an agreement for joint ownership, jurisdiction and control over the bridges between Pennsylvania and New Jersey, including the Walt Whitman Bridge where the accident occurred. Pennsylvania and New Jersey courts both “enjoy and exercise a concurrent jurisdiction” over bridges operating between the two states. The jurisdiction of the City of Philadelphia in fact extends all the way to where the bridge ends at the New Jersey shoreline. Although it does not matter where the accident occurred on the bridge because Philadelphia properly has jurisdiction over accidents that occur on any part of any bridge between Pennsylvania and New Jersey, in fact, the accident occurred closer to Pennsylvania, on the Pennsylvania half of the river.

2. Failure To Charge the Jury on Plaintiffs ’ Tort Option

The jury was not charged on the plaintiffs’ tort option. The defendant waived any request for such a jury instruction by failing to include any instruction on their proposed jury instructions or any question on their proposed verdict sheet and by failing to raise any objection to the verdict sheet or jury instructions as given to the jury. A party must “make a timely and specific objection to a jury instruction to preserve for review a claim that the jury charge was legally or factually flawed.” Defense counsel did not object at any time to the court’s ruling that no jury instruction concerning tort option would be given.

Furthermore, defense counsel prepared the verdict sheet which was submitted to the jury and on which the jury verdict was recorded. It contained no interrogatory regarding any requirements concerning suit when a limited tort option defense had been raised. Defense counsel was given opportunities to object to the verdict sheet and did not do so. Specifically, the court inquired as follows:

“The Court: I have your verdict interrogatory form—

“Mr. Rohde: Yes, your honor.

“The Court: — asking the court to use. Plaintiff’s counsel says he agrees with it. This is the form, therefore, that we will use by agreement of counsel. Now, what question are you raising about limited tort?

“Mr. Rohde: It’s not in here, judge.

“The Court: Well, it’s not in the case. You’re not asking the jury to ask any question about it. Are we ready to proceed?

“Mr. Rohde: Well, your honor, my video deposition isn’t completed.”

The defense cannot object that an issue was not submitted on the verdict sheet when the defense proposed verdict sheet is submitted verbatim to the jury. The defendant waived any right to appeal the court’s failure to charge the jury or submit a verdict interrogatory concerning any purported plaintiffs’ tort option.

3. Handwritten Interrogatory Not Protected by the Attorney-Client Privilege

The court properly allowed the defendant’s handwritten and verified answers to the interrogatory. The handwritten, verified answers are clearly an admission by a party admissible under Pa.R.E. 803(25). Pa.R.E. 803(25) (A) states that a party admission is an exception to the hearsay rule when the statement is made by the party and is being offered against that party. Interrogatory answers are evidentiary admissions and can be read to the jury. In this case, the defendant’s interrogatory responses were handwritten, contained a signed verification and the defendant testified during the trial that those answers were truthful. This was clearly a truthful admission by a party. Having been sent directly to plaintiffs’ counsel, this statement is clearly not protected by the attorney-client privilege. There was no error in allowing plaintiff to confront the defendant with a prior statement in order to demonstrate “inaccuracies” in his trial testimony.

4. Jury Instructions on the Plaintiffs ’Life Expectancies

Two issues are raised with regard to the court instruction on life expectancy. The defense contends that there was no evidence regarding the plaintiffs’ life expectancy. In this case, there was testimony by Dr. Peter Corda, who treated plaintiff Arjumand Haq, who testified that Ms. Haq suffered permanent injuries as a result of the accident. Similarly, Dr. Martin Kessler, who treated plaintiff Mohammad Haq, testified that his injuries were “permanent in nature.” Pennsylvania Suggested Standard Civil Jury Instructions 6.21 states that if a jury finds that a plaintiff’s injuries will continue “beyond today” they must consider the life expectancy of the plaintiff and therefore a jury charge regarding life expectancy is appropriate.

Furthermore, the court can take judicial notice of government life tables which show the statistical life expectancy of persons at various ages. Therefore, the jury was properly instructed on life expectancy. If they agreed with the plaintiffs’ experts and found that the plaintiffs’ injuries would continue into the future, they would need to consider the plaintiffs’ life expectancies.

The second issue with regard to the life expectancy charge was the claim that the court gave an inadequate instruction because the court did not inform the jury of all the factors which may affect the duration of the plaintiffs’ lives. The general factors which affect life expectancy are known by everyone. Specific factors which may decrease either plaintiff’s life expectancy in this case did require expert testimony by the defense which was not presented. Further, to appeal a jury charge, a party must make a timely and specific objection to the court’s jury instructions. At the initial charging conference, defense counsel did generally state that he had an exception to any life expectancy charge. However, the court replied there was nothing to take an exception about; the figures were either accurate or not accurate. Defense counsel was told that the following day he would have the opportunity to either stipulate to the years provided by the life expectancy tables contained in the Standard Jury Instructions or provide the court with new life expectancy and he agreed. The next day the court gave defense counsel another opportunity to provide different life tables and he declined:

“The Court: Let’s start with the life tables. Mr. Rohde, do you have different numbers from your review of the life tables?

“Mr. Rohde: No, your honor.”

Defense counsel was given yet another opportunity to object to the life tables when the jury instructions were completed but he failed to do so:

“The Court: Does counsel wish to see me at sidebar concerning the charge?

“Mr. Rohde: I don’t, your honor.”

The defendant’s right to appeal any error in the actual life expectancies given has been waived. Additionally, there was no error.

5. Jury Verdict Was Against the Weight of the Evidence

The jury verdict was not against the weight of the evidence. A new trial should only be awarded on the ground that the verdict is against the weight of the evidence when the verdict is so contrary to the evidence “as to shock one’s sense of justice” and a new trial must occur as to give another opportunity for right to prevail.

In this case, there was no dispute that the defendant was driving the car that struck the plaintiffs’ car in the rear. Nor was there any dispute that the plaintiffs were injured as a result of this collision. Adequate evidence was presented by the plaintiffs, including the testimony of two physicians, as to the extent and permanent nature of their injuries. The jury’s verdict was reasonable.

6. Whether the Jury Verdict Was Disproportionately Excessive

The Supreme Court of Pennsylvania has found that the jury’s verdict should only be reversed as excessive if it “shocks our sense of justice.” Dr. Peter Corda testified that Arjumand Haq suffered herniated discs with an annular tear as a result of this accident. He further testified that these injuries would require physical therapy, epidural steroid injections and a percutaneous discectomy via nucleoplasty. Dr. Corda found that these injuries were permanent. The jury found for the plaintiff, Arjumand Haq in the amount of $ 175,000, a reasonable verdict for the injuries proven.

Dr. Martin Kessler testified that the plaintiff Mohammad Haq sustained cervical disc protrusions as a result of the accident which required physical therapy and injection therapy. He testified further that these injuries were “permanent in nature.” The jury found for the plaintiff, Mohammad Haq in the amount of $7,500 which was reasonable for the injuries proven.

The jury verdict in this case was not disproportionately excessive. Plaintiffs produced experts who testified that their injuries were pemianent. It was within the jury’s discretion to believe these expert witnesses and decide the case accordingly.

Therefore, for the reasons stated above, the judgment of this court should be affirmed.

      . N.T., December 12, 2005, p. 21.

      . N.T., December 12, 2005, p. 22.

      . N.T., December 12, 2005, p. 26.

      . The defendant is also alleging that the court erred in denying his motion to dismiss for improper venue. The defendant’s argument as to improper venue is the same as his argument for lack of jurisdiction, alleging that, because this court did not have jurisdiction, Philadelphia could not have been the proper venue. Pa.R.C.P. 1006(a)(1) confirms that venue is proper in a county where the cause of action arose. Therefore, because this action took place on the Pennsylvania side of the Walt Whitman Bridge which is closest to, the county of Philadelphia, Philadelphia is a proper venue for this action.

      . Shulman Inc. v. Perskie, 24 D.&C.2d 118, 120 (1960). See also, Domenick v. Sigler, 23 D.&C.3d 765 (1982).

      . Shulman Inc. v. Perskie, 24 D.&C.2d 118, 120 (1960).

      . McManamon v. Washko, 906 A.2d 1259, 1282 (Pa. Super. 2006).

      . N.T., December 9, 2006, p. 5.

      . N.T., December 9, 2005, p. 5.

      . Wilkerson v. Allied Van Lines Inc., 360 Pa. Super. 523, 536, 521 A.2d 25, 32(1987).

      . N.T., December 12,2005, p. 22.

      . Helm v. Eagle Downs-Keystone Racetrack, 385 Pa. Super. 550, 561 A.2d 812 (1989).

      . Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).

      . N.T., December 12, 2005, pp. 111-12.

      . N.T., December 13, 2005, p. 8.

      . N.T., December 13, 2005, p. 58.

      . Burrell v. Philadelphia Electric Co., 438 Pa. 286, 289, 265 A.2d 516, 518 (1970).

      . Smith v. Allegheny County, 377 Pa. 365, 369, 105 A.2d 137, 139 (1954).

      . Deposition of Peter Corda, p. 34, played to the jury.

      . Deposition of Martin Kessler, p. 42, played to the jury.


author: CHESLOCK, J.,

text:
    Nationwide Mutual Fire Insurance Company v. Deresky

      Edward J. McKarski, for plaintiff.

      Stephen M. Mowrey, for defendants Deresky.

      Kenneth Paul Hilliard, pro se.
    July 3, 2006
   CHESLOCK, J.,

This matter comes before the court on plaintiff, Nationwide Mutual Fire Insurance Company’s motion for summary judgment. This matter arises from a complaint filed in a separate action at 9123 Civil 2004 (civil complaint) by the defendant, Marie Deresky, individually and as parent and natural guardian of minor, J.M.D., against the defendant, Kenneth Paul Hilliard, for damages due to Hilliard’s alleged sexual activity with the defendant, J.M.D. (Daughter) and to the exposure of Daughter to sexually explicit materials and/or films. The civil complaint was filed by Marie Deresky (Mother) which alleged that Hilliard engaged in unwanted sexual activity with the Daughter in excess of 300 times at various locations including 191 Stony Hollow Drive, Winona Lakes, Bushkill, Pike County, Pennsylvania (Lower Lakeview) and 148 Leisure Lands in East Stroudsburg, Monroe County, Pennsylvania. After a criminal investigation by the Monroe County District Attorney’s office, Hilliard was arrested. On September 10, 2004, following a trial by jury, Hilliard was found guilty of rape by forcible compulsion (two counts), rape of a child (two counts), involuntary deviate sexual intercourse by forcible compulsion (two counts), involuntary deviate sexual intercourse of a child less than 16 years of age (two counts), statutory sexual assault (two counts), aggravated assault, indecent assault without consent (two counts), aggravated indecent assault by forcible compulsion (two counts), aggravated indecent assault on a child less than 13 years of age (two counts), aggravated indecent assault on a child less than 16 years of age (two counts) and corruption of minors. Hilliard was thereafter sentenced to not less than 12 and one-half years nor more than 25 years in a state correctional institute. On June 22, 2005, Hilliard filed a notice of appeal with the Superior Court. As of the date of this opinion, the Pennsylvania Superior Court has not entered a ruling or an order regarding the disposition of Hilliard’s appeal. Thereafter on December 4, 2005, Mother and Daughter filed a civil complaint containing five counts against Hilliard. The first count is an action by Mother as the natural guardian of Daughter against Hilliard and the second cause of action is a count by Mother individually against Hilliard. The third cause of action is a negligence count by Mother as natural guardian of Daughter against Hilliard. The fourth cause of action is a negligence count by Mother individually against Hilliard and the final cause of action is by Mother individually for negligent infliction of emotional distress. On April 7,2005, plaintiff filed an action for declaratory judgment against Mother, Daughter and Hilliard, which was subsequently amended March 28, 2006, to include both the Lower Lakeview and Leisure Lands properties. The action requests judgment from the court in the form of a decree declaring that Nationwide has no duty to defend or indemnify Hilliard for the cause of action asserted by Mother or Daughter. Plaintiff asserts that no coverage exists for the claims set forth in the civil complaint. On March 29,2006, the plaintiff filed a motion for summary judgment. Following submission of briefs and oral argument on June 5, 2006, plaintiff’s motion for summary judgment is now before the court for disposition.

Rule 1035.2 of the Pennsylvania Rules of Civil Procedure provides that a motion for summary judgment may be granted:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

“(1) whenever there is no genuine issue of any material fact as to a necessaiy element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discoveiy relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

Summary judgment is a means to eliminate the waste of time and resources of litigants in a case where the trial would be a useless formality. Liles v. Balmer, 389 Pa. Super. 451, 567 A.2d 691 (1989). “In a declaratory judgment action, just as in civil actions generally, summary judgment may be granted only in those cases in which the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits, clearly shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” School District of the City of Monessen v. Farnham & PFile Co. Inc., 878 A.2d 142, 147 (Pa. Commw. 2005). (citations omitted) Furthermore, a motion for summary judgment is only properly granted in cases where the right to judgment is clear and free from doubt, with any existing doubt viewed in the light most favorable to the nonmoving party. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). Moreover, a nonmoving party may not rest upon mere allegations or denials of the pleadings. Rather, the nonmoving party must set forth specific facts demonstrating that there are genuine issues for trial. Failure to allege such specific facts will result in summary judgment, if appropriate, against the nonmoving party. Pa.R.C.P. 1035.3; Washington Federal Savings and Loan Association v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986); Overly v. Kass, 382 Pa. Super. 108, 554 A.2d 970 (1989).

Instantly, the plaintiff’s action for declaratory judgment asserts that it has no duty to defend or indemnify Hilliard under both of the Leisure Lands and the Lower Lakeview policy since all of the injuries allegedly suffered by Mother and Daughter were caused by the intentional acts of the named insured. Plaintiff also asserts that Mother and Daughter resided in the same household as the named insured (Hilliard) and that although the civil complaint asserts negligence on the part of Hilliard, the acts committed by Hilliard of sexual molestation do not trigger coverage for torts which are intentional as a matter of law. Plaintiff argues that the language of the policy excludes coverage for the defense or indemnification of Hilliard in the civil complaint by Mother and Daughter. It asserts that no genuine issue or issues of material fact which would tend to establish the actions of Hilliard as complained of in the civil complaint were accidental. Therefore, plaintiff argues that it is entitled to summary judgment as a matter of law in this matter.

The standard to be applied in reviewing coverage questions arising under insurance contracts are well settled. In Pennsylvania, the proper construction of an insurance policy is a matter of law which the court may properly resolve when ruling on a summary judgment motion. Acceptance Insurance Company v. Seybert, 757 A.2d 380, 382 (Pa. Super. 2000). Although an insurer is not required to defend an insured in every claim brought against it, an insurer must defend any suit in which there is actual or potential coverage. Id. at 382. The interpretation of an insurance policy is a question of law for the court to determine. Id. (citing Curbee Ltd. t/a Black Angus Inn v. Rhubart, 406 Pa. Super. 505, 509, 594 A.2d 733, 735 (1991). “The proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured____In determining the reasonable expectation of the insured, the courts must examine the totality of the insurance transaction involved.” Hertz Corp. v. Smith, 441 Pa. Super. 575, 578, 657 A.2d 1316, 1317 (1995). (citations omitted) In interpreting an insurance policy, we must determine the parties’ intent as manifested by the language of the written agreement. Allstate Insurance Company v. Callaghan, (2006 W.L. 162, 6651 (M.D. Pa.)). While an ambiguous policy is to be construed in favor of the insured and against the insurer, where the language of the contract is clear and unambiguous, we must give effect to that language to give the words their natural meaning. Id.; Acceptance Insurance Company, 757 A.2d at 382. In addition, Pennsylvania law requires an insurer to act with the utmost good faith towards its insured and it should accord the interest of the insured the same faithful consideration it gives its own interest. Williams v. Hartford Insurance Co., 83 F. Supp.2d 567 (E.D. Pa. 2000).

In both the Leisure Lands policy and the Lower Lake-view policy, the plaintiff issued an Elite 2 Homeowners Policy at no. 58-37-HO-814583 and 58-37-HO-88635 respectively. The relevant portions of the definition, liability coverage and exclusions are as follows:

“Definitions

“ ‘You’ and ‘your’ refer to the named insured shown in this policy, and the spouse who lives in the same household.

“‘We’, ‘us’, and ‘our’ refer to the company. Certain words and phrases are defined as follows:

“(1) ‘Bodily injury’ means bodily harm, sickness or disease, including resulting care, loss of services and death. .. .

“(3) ‘Insured’ means you and the following who live in your household: (a) your relatives, (b) any other person under age 21 and in the care of you or your relatives.

“(4) ‘Insured location ’ means: (a) the residence premises . . .

“(8) ‘Residence premises’ means the one- or two-family dwelling, other structures and grounds; or that part of any other building where you live, shown as the residence premises on the declarations.

“(9) ‘Occurrence ’ means bodily injury or property damage resulting from: (a) one accident; or (b) continuous or repeated exposure to the same general condition.

“Section II — Liability coverages

“Coverage E — Personal liability

“We will pay damages the insured is legally obligated to pay due to an occurrence. . . .

“Coverage F — Medical payments to others

“We will pay the necessary medical and funeral expenses incurred within three years after an accident causing bodily injury. This coverage does not apply to you. It does not apply to regular residents of your household. It does apply to residence employees....

“Section II — Exclusions

“(1) Coverage E — Personal liability, and Coverage F — Medical payments to others do not apply to bodily injury or property damage:

“(a) by an act intending to cause harm done by or at the direction of any insured.

“This exclusion does not apply to corporal punishment of pupils.2

“2 This provision (Section 1I-I. Coverage E (a)) which is set forth in Amendatory Endorsement “Fire 3712” (attached to the Lower Lakeview/Leisure Lands policy) previously stated as follows:

“(a) which is expected or intended by the insured.

“This exclusion does not apply to corporation punishment of pupils.”

In its motion for summary judgment, plaintiff contends that as a matter of law, it is not required to defend or indemnify Hilliard under this action due to the exclusion of coverage by an intentional act by the insured. In this respect, the plaintiff alleges that the doctrine of the inferred intent applies in cases concerning the sexual molestation of children by an insured. Wiley v. State Farm Insurance and Casualty Co., 995 F.2d 457 (3d Cir. 1993). The Inferred Intent Rule to harm is an irrefutable presumption in which it is held that harm to children in sexual molestation cases is inherent in the very act of sexual assault committed on a child regardless of the motivation for, or nature of, such assault, and that the resulting injuries as a matter of law are intentional. Id. We agree with the Third Circuit that sexual abuse and/ or molestation of a child by a mature adult is, as a matter of law, intentional regardless of the motivation for, or nature of, such assault. The civil complaint against Hilliard avers two counts of batteiy for the sexual assault of Daughter. Although Mother and Daughter contend that Hilliard’s testimony at his criminal trial on September 10, 2004, indicates that he did not specifically intend to harm Daughter and, to the contrary, claims that the sexual activity was consensual, we find that Pennsylvania has adopted the Inferred Intent Rule and as such the resulting injuries are, as a matter of law, intentional. As such, we find that plaintiff has no legal duty to defend or indemnify Hilliard in the civil complaint action.

Next, Mother and Daughter contend that their civil complaint sets forth on its face an action in negligence against Hilliard for exposing Daughter to sexually explicit material. They allege that the civil complaint on its face has pled sufficient facts to support an occurrence under the terms of the policy. In reviewing the civil complaint filed against Hilliard, we find that the negligence count against him states that Hilliard engaged in sexual activity with minor and exposed minor (Daughter) to sexually explicit materials and films. In Pennsylvania, it is the insurer’s duty to defend the insured by determination of the factual allegations of the underlying complaint. Erie Insurance Exchange v. Fidler, 808 A.2d 587 (Pa. Super. 2002). It is the insurer’s obligation to defend the factual allegations state of claim which would actually or potentially fall within the policy’s coverage. American States Insurance Company v. Maryland Casualty Company, 427 Pa. Super. 170, 628 A.2d 880 (1993). Accordingly, we must determine, by an interpretation of the insurance policy, including the reasonable expectation of the insured, whether the complaint alleges an injury which may be within the scope of the policy requiring the insurer to defend and potentially indemnify for the cause of action. Erie Insurance Exchange v. Fidler, supra. Plaintiff argues that the policy’s exclusions encompass the underlying civil complaint, accordingly the plaintiff bears the burden of demonstrating the policy’s exclusion and where the contract is ambiguous the policies are construed against the insurer who drafted the contract. Id.

In this matter, the third count contained in the civil complaint against Hilliard is entitled “negligence.” However, a review of the entire action clearly demonstrates intentional actions on the part of Hilliard. In paragraph 20 of the civil complaint, it states as follows: “At the time and place aforesaid, the careless, negligent and reckless acts of the defendant, Kenneth Paul Hilliard, consisted of engaging in sexual activity with minor plaintiff and exposing minor plaintiff to sexually ex-plicit materials.” Although, the complaint is couched in such terms as to avoid insurance exclusion, the factual allegations of the civil complaint sound in intentional tort and the arbitrary use of the word “negligence” will not trigger an insurer’s duty to defend. Agora Syndicate Inc. v. Levin, 977 F. Supp. 713 (E.D. Pa. 1997). In Pennsylvania, it is well settled that public policy prohibits insurance coverage for intentional torts or criminal acts as a policy of insurance is a contract intended to protect and benefit the insured from liability resulting from unintentional conduct. Id. This is demonstrated in the clear and unambiguous terms of the insurance policy as set forth in Section II — Exclusions. We find that all the allegations contained in the civil complaint filed by Mother and Daughter clearly point to the affirmative action by Hilliard to sexually exploit Daughter and expose her to materials and films which were explicit and sexual in nature. We believe that read as a whole, the civil complaint clearly specifies Hilliard’s acts which were overt and intentional actions. Moreover, in the January 4,2006, deposition of Mother, she testified that Hilliard kept pornographic materials such as photos and books in the garage and in a closet in the bedroom occupied by Mother and Hilliard. (N/T pp. 42-44.) Mother also testified that the girls did not go into the garage, including Daughter. We find that based on the totality of the civil complaint and the exclusions contained within the Leisure Lands and Lower Lakeview policies, coverage for bodily injury or property damage by an act intending to cause harm done by, or at the direction of, the insured are excluded and that the plaintiff is entitled to judgment as a matter of law. We find no genuine issues of material fact which exist which tend to establish the actions of Hilliard as complained of by Mother and Daughter in the underlying civil action which were negligent. Moreover, Mother and Daughter have failed to set forth specific facts demonstrating that there are genuine issues for trial. The allegations that Hilliard was negligent will not defeat a motion for summary judgment. We find, as a matter of law, that plaintiff is entitled to summary judgment.

The final issue involved the duty of plaintiff to defend and/or indemnify Hilliard for the negligent infliction of emotional distress. We believe that cause of action is the result of an intentional act, although it is couched on terms of a negligent act. Further, the civil complaint does not allege an injury, which for the purposes of coverage, includes bodily harm. The action encompasses claims for emotional or mental harm and is therefore excluded from coverage by the policy. Moreover, Mother and Daughter failed to set forth any authority or case law in support of their position. It has been held that all issues are waived which are not supported by citation to appropriate legal authority. Treasure Lake Property Owners Association Inc. v. Meyer, 832 A.2d 477 (Pa. Super. 2003). Hence, we find no merit to Mother and Daughter’s position in this regard.

As set forth above, we find that the plaintiff has no duty under either the Leisure Lands’ policy or the Lower Lakeview policy to defend or indemnify Hilliard with respect to any and all claims contained in Mother and Daughter’s civil complaint filed at no. 9123 Civil 2004. Based upon the foregoing, we enter the following:

ORDER

And now, July 3, 2006, plaintiff Nationwide Mutual Fire Insurance Company’s motion for summary judgment is granted, and it is ordered that the plaintiff has no duty to defend or indemnify defendant, Kenneth Paul Hilliard, in the action filed in the Court of Common Pleas of Monroe County at term no. 9123 Civil 2004.


author: WHERRY, S.J.,

text:
    McMunn v. Upperman

      Thomas W. Leslie, for plaintiff.

      Joseph J. Kearney, for defendant Husband.

      Thomas A. Shumaker, for defendant Wife.
    August 21, 2006
   WHERRY, S.J.,

This opinion is issued pursuant to Pa.R.A.P. 1925(a) in support of the order of court issued July 21,2005, which held: (1) that, although the affidavit of the plaintiff, Debbie M. Upper-man, is valid and recordable, said document did not constitute a valid transfer of ownership from plaintiff to defendants of the contested property pursuant to the standards enunciated in Manley v. Manley, 238 Pa. Super. 296, 357 A.2d 641 (1976); and, (2) that the defendant, Buddy Upperman, was entitled to receive $49,500 from the plaintiff.

The relevant facts are as follows: The defendants, Buddy L. Upperman (Husband) and Debbie M. Upper-man (Wife), were married sometime in March of 2001. (N.T. 09-14-2004 p. 13.) On or about the time of defendants’ marriage, Debbie M. Upperman (plaintiff) indicated that she wanted to give the defendants a certain tract of land (contested property) as a wedding present. (N.T. 09-14-2004 p. 14.) Sometime after the defendants’ marriage, the parties viewed the land that plaintiff intended to give to the defendants and memorialized their understanding via a sketch drafted by Husband. (N.T. 09-14-2004 pp. 16-17.) On the back of this sketch, Wife drafted certain language purporting to memorialize the parties’ understanding that the land was to be transferred from plaintiff to the defendants. (N.T. 09-14-2004 p. 17.) Wife testified that she reviewed the map and written understanding with plaintiff, after which time, Wife and plaintiff traveled to Attorney Shumaker’s office, where plaintiff and Wife signed the written understanding attached to the map and Attorney Shumaker notarized and recorded the affidavit. (N.T. 09-14-2004 pp. 18-19.) The affidavit has been recorded in volume 1877 p. 37. (See N.T. 09-14-2004 p. 32.) Husband testified that he relied on the recorded memorialization of plaintiff’s intent to convey the property. (N.T. 09-14-2004 p. 33.)

Plaintiff testified that she signed the recorded instrument; however, she claimed that, prior to signing, she did not read the document and that there was no map drawn on the reverse side of the document when she signed it. (N.T. 09-14-2004 pp. 40-41.) Plaintiff testified that there was a witness to support her version of the signing of the affidavit and the original contents of the same; however, plaintiff declined to name this witness and expressed in her testimony that the witness was unavailable to testify. (See N.T. 09-14-2004 pp. 5,46-47.) Plaintiff also disputed Wife’s recollection of the amount of times plaintiff visited the contested property, but did admit to viewing it with Wife approximately 12 times. (N.T 09-14-2004 pp. 42-43.) Plaintiff also denied walking the property with the defendants prior to signing the recorded instrument. (N.T. 09-14-2004 p. 45.) Plaintiff admitted that she knew defendants were conducting a perk test on the contested property, but denied any understanding of the purpose of said test. (N.T. 09-14-2004 pp. 45-46.)

Wife testified that, from October 2001 through 2003, plaintiff accompanied Wife on approximately 20 to 25 separate instances to the contested property to view the progress of the defendants’ work on the property. (N.T. 09-14-2004 p. 22.) Additionally, Husband further testified that plaintiff visited him without Wife on approximately 30 additional instances. (N.T. 09-14-2004 p. 35.)

Plaintiff was kept informed of the progress of the defendants’ efforts to build their residence on the contested property, including their application for building permits and the undertaking of a perk test. (N.T. 09-14-2004 p. 23.) During these updates, and until the defendants were removed from the contested property, plaintiff never voiced objections to the defendants regarding their work. (N.T. 09-14-2004 p. 13.)

The defendants attempted to have the contested property surveyed by Greg Tomo; however, Mr. Tomo was unable to complete the survey because someone allegedly removed the flags he had placed. (N.T. 09-14-2004 pp. 25-26.) Defendants testified that she and Husband were unaware that permits were required for the construetion of a bridge on the contested property. (N.T. 09-14-2004 pp. 26, 36.)

Husband testified that he spent $ 10,000 on equipment used solely on the contested property and an additional $10,000 on supplies. (N.T. 09-14-2004 pp. 38-39.) The testimony indicated that Husband removed 300-400 trees on the contested property in order to make it suitable for building. (N.T. 09-14-2004 p. 21.)

The first issue for this court to address is the status of the outstanding counterclaim filed by Wife in this action. After a review of the file, the court believes that it inadvertently failed to address Wife’s motion for leave to file Rule 2252(d) counterclaim as to defendant, Buddy Upperman. This court notes that, pursuant to Pa.R.C.R 2253, defendant was required to obtain the consent of all counsel, or, in the alternative, permission by order of court, due to the fact that the filing of this petition on December 22, 2004 was well beyond 60 days from the November 13,2003 filing of the complaint by plaintiff. Since there is no record of consent by counsel in this matter, this court respectfully submits that the Superior Court retains jurisdiction based upon the fact that Wife’s proposed order granting her leave to file a counterclaim pursuant to Pa.R.C.P. 2252(d) was “crossed out” and essentially denied by this court.

The second issue for the court to address is whether the evidence in this case established the existence of a parol sale or gift of land between family members under the case of Manley v. Manley, 238 Pa. Super. 296, 305, 357 A.2d 641, 645-46 (1976). The Pennsylvania Superior Court has established the high standards for establishing title to land via parol evidence:

“The standards for establishing by parol evidence the existence and contents of a lost deed are the same as those for establishing a parol sale or gift of land: ‘We are virtually establishing title to land by parol, and the proofs should therefore be as explicit as in the case of the specific enforcement of a parol sale under the statute of frauds and perjuries: Good’s Petition, 1 Dist. Rep. 569.’ Nicholls’ Petition, 190 Pa. 308, 313, 42 A. 692, 694 (1899). Compare Myers v. Marquette, 311 Pa. 198, 166 A. 361 (1933). Aparty seeking to establish title to land by parol testimony must meet a very high burden: ‘To overcome a record title, a claimant relying upon an oral agreement of sale or exchange must present evidence of the same that is “direct, positive, express and unambiguous,” expressly defining all the terms and conditions of the contract and leaving nothing to guesswork or subject to misinterpretation. If the evidence submitted fails to meet these requirements, the Statute [of Frauds] strikes down the alleged bargain as inoperative, turning it into a mere lease or estate at will: Act of March 21, 1772, 1 Sm. L. 389, sec. 1, (33 P.S. sec. 1); Glass v. Tremellen, 294 Pa. 436, 144 A. 413 (1928); Hart v. Carroll, 85 Pa. 508; Sample v. Horlacher, 177 Pa. 247, 35 A. 615 (1896); Wright v. Nulton, 219 Pa. 253, 68 A. 707 (1908); Sorber v. Masters, 264 Pa. 582, 107 A. 892 (1919); Breniman v. Breniman, 281 Pa. 304, 126 A. 751 (1924).’ Kirk v. Ford, 330 Pa. 579, 580-81, 200 A. 26, 27 (1938).” Manley v. Manley, 238 Pa. Super. 296, 305, 357 A.2d 641, 645-46 (1976).

The court in Manley went on to discuss the standard as it applies to transfers between family members, such as the instant case:

“[C]ourts are cautioned to view with special circumspection transfers of property between family members: ‘The very nature of the relation, therefore, requires the contracts between parents and children to be proved by a kind of evidence that is very different from that which may be sufficient between strangers. . . . [A]ll the acts necessary for its [the contract’s] validity must have special reference to it, and nothing else: 2 Penn Rep. 365; 8 Barr 213; 9 Id. 262; 2 Harris 201; 7 Id. 251-366; 1 Casey 308; 2 Jones 175. The importance of this rule is apparent; for it requires but a glance over the cases of this class to discover how sad has been the experience of the courts in family disputes, growing out of the exceptions which have been allowed to this statute [Statute of Frauds]; and how many and how distressing must have been the ruptures of the closest ties of kindred that have been produced and perpetrated by the encouragement thus given to try the experiment of extracting legal obligations out of parental [or filial] kindness. ’ Poorman v. Kilgore, 26 Pa. 365, 372 (1855). See also, Brotman v. Brotman, 353 Pa. 570, 46 A. 2d 175 (1946); Glass v. Tremellen, 294 Pa. 436, 144 A. 413 (1928); Sorber v. Masters, 264 Pa. 582, 107 A. 892 (1919); Erie & W.V. R. Co. v. Knowles, 117 Pa. 77, 11 A. 250 (1887); Jordan v. Jordan, 93 Pa. Super. 519 (1928). ‘When an attempt is made to set up a parol contract of sale... [between family members] it has been held that the contracting parties must be brought face to face. The witnesses must have heard the bargain when it was made, or must have heard the parties repeat it in each other’s presence. A contract is not to be inferred from the declarations of one of the parties.’ Glass v. Tremellen, supra at 438-39, 144 A. at 414, quoting Ackerman v. Fisher, 57 Pa. 457, 459 (1868).” Manley v. Manley, 238 Pa. Super. at 305-306, 357 A.2d at 645-46.

Further, a litigant must establish with particularity every element of that claim:

“ ‘The evidence must define the boundaries and indicate the quantity of land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract, and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained. And it must show performance or part performance by the vendee which could not be compensated in damages, and such as would make rescission inequitable and unjust.: Hart v. Carroll, 85 Pa. 508, 510.’ Klingensmith v. Klingensmith, 375 Pa. 178, 183, 100 A.2d 76, 78 (1953). Additionally, when the litigant seeks to rest his claim on a deed, which is not produced in court, he must also establish by ‘clear, precise, and indubitable evidence’ the facts and circumstances of delivery. Sorber v. Masters, supra. ‘The Statute of Frauds prohibits the creation of interests in any land by parol. Its obvious purpose is to prevent the assertion of verbal understandings, and to obviate the opportunity for fraud and perjury. “It is not a mere rule of evidence. It is a declaration of public policy.”: Holland Fur v. Keystone Dehyd. Co., 151 Pa. Super. 495, 499, 30 A.2d 872. A writing signed by the parties is required, and even courts of equity, though dispensing with the form, finnly demand the substance. ’ Brotman v. Brotman, supra at 573, 46 A.2d at 177. The failure of the moving party to sustain this heavy burden with respect to each and every element is fatal to his claim: ‘It is no answer to say that the credibility of witnesses is for the jury, and that they may disbelieve the testimony if they see fit to do so. That argument will not avail in this class of cases, for the question here is as to the character of the proof, because it is offered for the purpose of creating title to land by parol. It must conform to certain requirements, and if it does not, it will not suffice to create such title, and of this the court must judge.’ Erie & W. V. R. Co. v. Knowles, supra at 86, 11 A. at 256.” Manley v. Manley, 238 Pa. Super. at 306-307, 357 A.2d at 645-46.

The court finds that the recorded instrument does not satisfy the stringent standards set forth in Manley. Specifically, Manley requires that, in order to overcome a record title, one relying upon an oral agreement of sale or exchange must present evidence “direct, positive, express and unambiguous, [which] expressly [defines] all the terms and conditions of the contract and leaves nothing to guesswork or subject to misinterpretation.” Manley, 238 Pa. Super. at 305, 357 A.2d at 645-46. Furthermore, Manley requires a stricter application, including a face-to-face meeting of the parties, of the aforestated standard when the purported agreement was between family members as in the instant case. Id. at 306-307. Lastly, a litigant must establish with particularity every element of their claim including the boundaries, the exact amount of consideration, and the existence of notorious and exclusive possession. Id. at 306-307. The evidence and testimony in the instance case are clearly unable to satisfy these aforementioned standards; therefore, the contested land was not conveyed from plaintiff to defendants pursuant to the standards enumerated in Manley.

Husband has contended that that the plaintiff committed an act, or acts, of fraud in her dealings with the defendants regarding the contested property. Fraud comprises “anything calculated to deceive, whether by single act or combination . . . [I]t is any artifice by which a person is deceived to his disadvantage.” Reichert Estate, 356 Pa. 269, 274, 51 A.2d 615, 617 (1947). Furthermore, the court has broad power to undo the effects of fraud, as stated in a long-standing Superior Court decision: “[FJraud vitiates everything that it touches, and an allegation of fraud coupled with a prayer for an appropriate and characteristic equitable remedy always calls forth the powers of the chancery court.” Fishel v. McDonald, 163 Pa. Super. 251, 254, 60 A.2d 820, 822 (1948).

This court finds that the award in this case was not based upon fraud. The record, as accepted by this court, indicates that plaintiff intended to convey the property referred to in the affidavit and later changed her mind.

The court can find no basis to support the inference that the plaintiff intended to deceive defendants from the inception of the purported conveyance.

Husband has also raised a breach of contract claim in this dispute. The formation of a contract requires offer, an acceptance of that offer and an exchange of consideration. Hartman v. Baker, 766 A.2d 347 (Pa. Super. 2000), appeal denied, 564 Pa. 712, 764 A.2d 1070 (2000). Furthermore, “[t]o form a valid contract, all of the essential elements, including consideration, must exist.” SKF USA Inc. v. W.C.A.B. (Smalls), 714 A.2d 496, 500 (Pa. Commw. 1998), citing PennDOT v. First Pennsylvania Bank, 77 Pa. Commw. 551, 466 A.2d 753 (1983). “Consideration exists where there is a bargained-for exchange by the parties to the contract.” SKF USA Inc., 714 A.2d at 500; First Pennsylvania Bank, 77 Pa. Commw. 551, 466 A.2d 753. A claim alleging breach of contract must establish that: (1) a contract, in fact, existed; (2) a breach of duty regarding one of the terms in the contract occurred; and (3) the resultant damages from the breach. Kane v. State Farm Fire and Casualty Co., 841 A.2d 1038 (Pa. Super. 2003); Presbyterian Medical Center v. Budd, 832 A.2d 1066, 1070 (Pa. Super. 2003).

This court finds the award in this case was not based upon Husband’s breach of contract claim. Specifically, this court fails to find the existence of a contract between the parties. The purported transaction was to have been a gift from plaintiff to defendants, for which defendants had tendered no form of consideration; therefore, any agreement between the parties could not have amounted to a contract. See Hartman, 766 A.2d 347; see also, SKF USA Inc., 714 A.2d at 500; First Pennsylvania Bank, 77 Pa. Commw. 551, 466 A.2d 753.

Husband has averred that he is entitled to restitution under a theory that plaintiff was unjustly enriched by Husband’s “improvements” to the contested property. In discussing the requirements of the doctrine of unjust enrichment, our Commonwealth’s Supreme Court has stated: “[a] person who has been unjustly enriched at the expense of another must make restitution to the other.” Binns v. First National Bank of California, Pennsylvania, 367 Pa. 359, 372, 80 A.2d 768, 775 (1951) (quoting Restatement (First) of Restitution §1 (1937)). The Supreme Court has gone on to state that “it has long been held in this Commonwealth that the doctrine of unjust enrichment is inapplicable when the relationship between parties is founded upon a written agreement or express contract, regardless of how ‘harsh the provisions of such contracts may seem in the light of subsequent happenings.’” Wilson Area School District v. Skepton, 586 Pa. 513, 520, 895 A.2d 1250, 1254 (2006); see also, Third National & Trust Company of Scranton v. Lehigh Valley Coal Company, 353 Pa. 185, 193, 44 A.2d 571, 574 (1945); see also, Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 290, 259 A.2d 443, 448 (1969); Wingert v. T.W. Phillips Gas & Oil Company, 398 Pa. 100, 105, 157 A.2d 92, 94 (1959). Specifically, “[The doctrine of unjust enrichment] applies only to situations where there is no legal contract.” Durham Terrace Inc. v. Hellertown Borough Authority, 394 Pa. 623, 148 A.2d 899, 904 (1959). The test for whether to apply this doctrine is as follows:

“The elements of unjust enrichment are ‘benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. . . . The most significant element of the doctrine is whether the enrichment of the defendant is unjust; the doctrine does not apply simply because the defendant may have benefited as a result of the actions of the plaintiff. . . . Where unjust enrichment is found, the law implies a quasi-contract which requires the defendant to pay to plaintiff the value of the benefit conferred. ... In other words, the defendant makes restitution to the plaintiff in quantum meruit.” AmeriPro Search Inc. v. Fleming Steel Company, 787 A.2d 988, 991 (Pa. Super. 2001).

This court’s order was not based on Husband’s claim of unjust enrichment. Although this court declined to find the existence of a contract between the parties, which could open the door for an unjust enrichment, this court finds that the evidence and testimony submitted in the instant dispute do not warrant a finding that plaintiff was enriched by the actions and expenditures of the defendants. See AmeriPro Search Inc., 787 A.2d at 991. Specifically, although the court accepts the evidence indicating that Husband had made substantial “improvements” to the disputed property in order to make said property suitable for the construction of a residence, the evidence and testimony also demonstrated that both plaintiff and defendants had been assessed numerous citations due to Husband’s failure to obtain certain required permits prior to his actions. Therefore, this court is not inclined to find that Husband’s expenditures and labor concerning the contested property were to the benefit of plaintiff.

Additionally, Husband has averred that he is entitled to restitution under a theory of conversion. The Pennsylvania Supreme Court has adopted several definitions of conversion: A conversion is “an act of willful interference with a chattel, done without lawful justification, by which any person entitled thereto is deprived of use and possession.” Norriton East Realty Corp. v. Central-Penn National Bank, 435 Pa. 57, 60, 254 A.2d 637, 638 (1969). Conversion has also been defined as “an act of interference with the dominion or control over a chattel.” Stevenson v. Economy Bank of Ambridge, 413 Pa. 442, 451, 197 A.2d 721, 726 (1964). Restatement (Second) ofTorts defines conversion in section 222A(l) as follows: “Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” The essential elements of the tort of conversion are as follows:

(1) The claimant: The claimant must have possessory rights to the chattel. He must be the possessor, or have the right of immediate or future possession. See Restatement §§224A, 225 and 243.

(2) The claim: The sole remedy for conversion is a judgment for money damages for the full value of the chattel, regardless of whether the chattel has been completely destroyed or lost. Conversion claims are unique from claims of trespass to chattels, in that the claimant need not accept return of the converted chattel, but is instead entitled to the full value of the chattel; when the actor pays that value, title passes to him. In effect, in conversion there is a forced judicial purchase, or sale, because of the wrongful appropriation. See Restatement §222A, comment C.

(3) Wrongful conduct: An exercise of dominion or control over the chattel by the actor is required, which may take on several forms: (a) Acquiring possession of the goods; (b) Transferring the goods in a manner which deprives the owner of control; (c) Withholding possession from one who has the right to it; and (d) Damaging or misusing the chattel. See Martin v. National Surety Corp., 437 Pa. 159, 165, 262 A.2d 672, 675 (1970).

(4) Effect of wrongful conduct: The exercise of dominion or control must result in such an unreasonable or serious deprivation of or interference with the claimant’s possessory right so as to justify requiring the actor to pay the full value of the chattel. If the exercise of dominion is merely brief and harmless, there is no conversion; therefore, the severe remedy of forced sale will not be applied. See Restatement §222A, comment c.

In addressing Husband’s conversion claim, the court notes that, in light of the findings that the affidavit did not constitute a valid deed and the ownership of the contested property was never legally transferred to the defendants, it appears that the “claimants” in this action (defendants) do not have a valid possessory interest in the contested property. A claim of conversion would be inappropriate in this action because the defendants lack the requisite possessory interest in the contested property. See Restatement §§224A, 225 and 243. Therefore, the award to Husband in this case was not based on conversion.

Husband’s final claim is one of promissory estoppel. The doctrine of promissoiy estoppel may afford recovery where “[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Thatcher’s Drugstore v. Consolidated Supermarkets, 535 Pa. 469, 476, 636 A.2d 156, 160 (1994) (quoting Restatement (Second) of Contracts §90(1), which has been adopted as the law in Pennsylvania). A claimant may request money damages as relief in a promissory estoppel claim. See DelConte v. Stefonick, 268 Pa. Super. 572, 577, 408 A.2d 1151, 1153 (1979).

The court finds that the plaintiff, the promisor in this situation, should have reasonably expected that her stated intent to gift the contested property to the defendants, the promises in this situation, would induce the defendants to expend labor and resources on the development of the contested property. This court finds that Husband relied on the plaintiff’s promise that the contested property was to be a wedding gift to the defendants. Husband justifiably relied on said promise to his detriment and plaintiff was not entitled to rescind her promise after the defendants’ marital status changed. Upon its finding that Husband’s promissory estoppel claim merited relief, this court determined that an award of monetary damages would be the best mechanism available to make the Husband whole while preserving plaintiff’s legal ownership of the contested property.

In conclusion, this court submits that it considered the evidence and testimony presented by the parties in its entirety. Specifically, this court considered the fact that Husband undertook the “improvements” to the contested property without obtaining the required permits for various projects. However, the court finds that this failure is one that could have been rectified over time and most likely would not have prevented defendants from building their home on the contested property. This court further considered Husband’s workmanship regarding the “improvements” to the contested property. The fact that plaintiff did not dispute Husband’s workmanship with credible evidence coupled with the court’s finding that the defendants’ testimony was credible while the plaintiff’s testimony was incredible, led this court to accept Husband’s estimate of $ 10 per hour as j ust compensation for his labor. The court also notes that no evidence was presented by any of the parties to substantiate the testimony regarding the purchase and liquidation of certain equipment and supplies meant for the “improvements” to the contested property. The court admits error in its finding that Husband sustained a $15,000 loss regarding these items. Specifically, after reviewing the notes of testimony it is apparent that the $15,000 figure was a misinterpretation of Husband’s testimony by counsel. (See N.T. 09-14-2004 pp. 38-39.) Therefore, this court is of the opinion that the evidence and testimony support a finding that Husband sustained a $ 10,000 net loss pursuant to the liquidation of the tools and supplies.

ORDER

And now, August 21,2006, the court having received notice that the above-captioned case has been remanded by the Superior Court, and this court having been directed to file a supplemental opinion pursuant to Pa.R. A.R 1925(a), with Thomas W. Leslie, Esquire, representing the plaintiff, and Joseph J. Kearney, Esquire, representing the defendant, Buddy L. Upperman, and Thomas A. Shumaker, Esquire, representing the defendant, Debbie M. Upperman, the court hereby orders and decrees that:

(1) The court issues the attached opinion pursuant to Pa.R.A.P. 1925(a).

(2) The prothonotary shall serve notice of this order and opinion upon counsel of record for the parties, and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: SULLIVAN, J,

text:
    Stever v. Antonowicz

      Aaron J. Freiwald, for plaintiffs.

      Frank J. Hartye, for defendants.
    May 5, 2006
   SULLIVAN, J,

We now have before us disposition of defendants’ preliminary objections to plaintiffs’ second amended complaint.

PROCEDURAL/FACTUAL HISTORY

Plaintiffs initiated this action with a writ of summons filed December 12, 2005, followed by a complaint December 23, 2005. The complaint alleges professional liability against all defendants, specifically negligence against defendant Dr. Antonowicz, and vicarious liability against Altoona Hospital and/or Altoona Regional Medical Center.

Plaintiff’s injuries were caused by an automobile accident on August 5, 2004, when Crystal M. Ickes, a patient of defendant Dr. Antonowicz, was driving and struck plaintiffs’ car. Plaintiffs have asserted a professional liability claim against Dr. Antonowicz, Altoona Hospital and Altoona Regional Health System based on professional liability due to gross negligence, willful misconduct, and/ or reckless conduct in prescribing Ms. Ickes a medication which could cause her to have seizures while driving, yet did not take any precautionary steps to prevent harm to third parties as a result of dangerous driving.

Defendants filed preliminary objections to the original complaint January 17, 2006. Before disposition of the objections, plaintiffs filed an amended complaint February 7,2006. Defendants then filed preliminary objections to the amended complaint February 16,2006. Plaintiffs filed a second amended complaint March 10, 2006, to which defendants again filed preliminary objections on March 21, 2006. Defendants’ brief in support of preliminary objections to plaintiffs’ second amended complaint was filed on March 21, 2006, and plaintiffs’ brief in opposition to preliminary objections was filed on April 10, 2006. Following oral arguments on April 24, 2006, we now proceed to disposition.

DISCUSSION

Defendants’ preliminary objections, .a demurrer and a motion to strike the demand for punitive damages, argue that plaintiffs’ second amended complaint fails to set forth sufficient facts or allegations to support either the cause of action set forth in the complaint against defendants or a basis for punitive damages.

Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. Smith v. Wagner, 403 Pa. Super. 316, 320, 588 A.2d 1308, 1310 (1991). Further, “[w]hen sustaining a preliminary objection would result in dismissal of an action, the objection should be sustained only in cases which are free from doubt.” Constantino v. University of Pittsburgh, 766 A.2d 1265, 1268 (Pa. Super. 2001), citing Engle v. Engle, 412 Pa. Super. 425, 430, 603 A.2d 654, 657 (1992).

The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer. Constantino, 766 A.2d at 1268, citing Jackson v. Garland, 424 Pa. Super. 378, 381, 622 A.2d 969, 970 (1993). A demurrer should be granted only if, “on the facts averred, the law says with certainty that no recovery is possible.” Ham v. Sulek, 422 Pa. Super. 615, 622, 620 A.2d 5, 9 (1993).

The issue before us is whether a physician may be held liable for injuries suffered by a third party in an automobile accident caused by the physician’s patient. Surprisingly, this issue has only been addressed by our appellate courts in a few cases.

Counsel for both parties agree that the following cases have addressed this issue. Each case will be reviewed separately.

The first case, DiMarco v. Lynch Homes—Chester County Inc., presented the issue of whether a physician owes a duty of care to a third party where the physician fails to properly advise a patient who has been exposed to a communicable disease, and the patient, relying upon the advice, spreads the disease to a third party, 525 Pa. 558, 559, 583 A.2d 422, 423 (1990). The Pennsylvania Supreme Court held that “when a physician treats a patient who has been exposed to or has contracted a communicable and/or contagious disease, it is imperative that the physician give his or her patient the proper advice about preventing the spread of disease.” Id. at 561-62, 583 A.2d at 424. The Supreme Court also discussed the foreseeability element necessary to find such a duty as found in the Restatement (Second) of Torts §324A, which requires that a complaint must contain factual allegations sufficient to establish the legal requirement that the defendant has undertaken to render services to another which he should recognize as necessary for the protection of a third party. Id., citing Cantwell v. Allegheny County, 506 Pa. 35, 41, 483 A.2d 1350, 1353-54 (1984). Because there was a readily identifiable class of persons whose health was likely to be threatened by the patient, foreseeability was present and the court held there was a cause of action against the physician. Id. at 562, 583 A.2d at 425.

In subsequent cases, the appellate courts declined to extend DiMarco. For example, in Crosby v. Sultz, 405 Pa. Super. 527, 592 A.2d 1337 (1991), the Superior Court addressed whether a cause of action may be sustained against a doctor where the doctor failed to monitor his diabetic patient’s conduct. Due to alleged lack of proper treatment of the diabetic condition on the part of the physician, the patient sustained a temporary lapse of consciousness while driving, causing him to lose control of his vehicle and cause an accident which injured plaintiffs. Crosby, at 530, 592 A.2d at 1339. The Superior Court held that a doctor has no duty to control his patient’s driving habits or to protect third persons from the injuries occasioned by unforeseeable accidents. Id. at 530, 592 A.2d at 1338.

The Pennsylvania Superior Court next addressed the issue of whether a physician should be “held liable for injuries that occurred in an automobile accident where that accident was caused by his patient’s lapse of conciousness . . . where the patient was en route from the doctor’s office to her home immediately subsequent to that physician’s negligent treatment of [an] unstable diabetic condition” in Waddell v. Bowers v. York Hospital, 415 Pa. Super. 469, 471, 609 A.2d 847, 848 (1992).

Here, the Waddell court affirmed the lower court’s grant of a demurrer for failure to state a claim upon which relief could be granted, stating that unlike Di-Marco, where it was foreseeable that the physician’s treatment of another for a communicable disease was necessary for the protection of readily identifiable third parties, the plaintiffs failed to establish a duty owed to them by the physician despite argument from the plaintiffs that the physician knew the patient was about to operate a motor vehicle and could foresee that their treatment of patient was necessary for the protection of third parties. Waddell at 473, 609 A.2d at 848. Despite this argument, the court found no duty to third parties as there was no. allegation that appellant had a “propensity or pattern of lapsing into unconsciousness due to her hypoglycemic condition, nor did she state how appellees knew that she was incapable of driving....” Id. at 476, 609 A.2d at 850.

This question was first addressed by the Pennsylvania Supreme Court in Witthoeft v. Kiskaddon, 557 Pa. 340, 733 A.2d 623 (1999), when the issue of “whether a physician may be held liable for injuries suffered by a third party in an automobile accident caused by the physician’s patient” presented itself. Witthoeft, at 342, 733 A.2d at 624. The court held that an ophthalmologist was not liable to a third party where the ophthalmologist failed to inform his patient of the patient’s poor visual acuity and the patient subsequently injured a third party while driving. They stated, “it is an unreasonable extension of the concepts of duty and foreseeability to broaden a physician’s duty to a patient and hold a physician liable to the public at large ....” Witthoeft at 353, 733 A.2d at 630.

The Supreme Court distinguished their holding in Witthoeft from that in DiMarco. Although liability was attributed to a physician in DiMarco, the facts were significantly different from Witthoeft. As in DiMarco, the patient had a communicable, sexually transmitted disease, and was given erroneous information which led to the infection of her partner. In DiMarco, the Supreme Court said it was reasonably foreseeable that a patient exposed to an infectious and communicable disease will injure a third party unless properly informed to prevent the spread of the disease, and one puipose for the treatment of the patient was specifically to help protect third parties from becoming infected due to the patient’s conduct. DiMarco at 563, 583 A.2d at 424-25. Further, the third party injured in DiMarco was a member of a readily identifiable group of individuals, rather than the public at large in Witthoeft. The Supreme Court in Witthoeft refused to extend liability in such circumstances.

The most recent case from an appellate court, and the case with facts most similar to the facts in the case before us, is Hospodar v. Schick. In Hospodar, the estate of a motorist killed in an automobile accident brought an action against the physician who treated the driver of the other car prior to the accident. The Superior Court found no third-party liability existed against the physician, despite the fact that known to the treating physician was a history of a seizure disorder and blackouts while driving, and he did not provide treatment for the seizures and the doctor did nothing to restrict his driving. The Superior Court stated that it was bound by the decision by the Pennsylvania Supreme Court in Witthoeft, and third-party liability did not exist against the physician.

Defendants argue that although plaintiffs attempt to set forth a cause of action against them based upon treatment of Crystal Ickes, no such liability extends to physicians under circumstances such as we have here, where a physician’s patient causes injuries to a third party through an automobile accident, as elucidated by our appellate courts in the cases described above. Crosby v. Sultz, 405 Pa. Super. 527, 592 A.2d 1337 (1991); Waddell v. York Hospital, 415 Pa. Super. 469, 609 A.2d 847 (1992); Witthoeft v. Kiskaddon, 557 Pa. 340, 733 A.2d 623 (1999); Hospodar v. Schick, 885 A.2d 986 (Pa. Super. 2005).

Although the Pennsylvania Supreme Court did find a duty on the part of the physician in DiMarco, they have distinguished their holding in that case from the subsequent cases, and clearly explained in Witthoeft. (See supra p. 126.) Similarly, DiMarco is also quite easily distinguished from the case presently before us, as this case does not involve a communicable disease or a readily identifiable group of third parties, but rather is more analogous to Crosby; Waddell; Witthoeft; and Hospodar, all of which involved a patient causing an automobile accident with a third party, and the Pennsylvania Superior and Supreme Courts refusing to extend liability to the physician in such circumstances.

Plaintiffs argue this case is distinguishable from Crosby; Waddel; Witthoeft; and Hospodar due to defendants’ alleged notice of the seizures and the foreseeability that a third party would be harmed by the patient’s condition. However, the foreseeability in this case is no greater than that in Hospodar, because in that case the physician was aware of a history of a seizure disorder and blackouts while driving, Hospodar, 885 A.2d at 987, yet still no cause of action existed against the physician.

Plaintiffs further argue that the physician here actually caused and/or contributed to the condition of Ms. Iclces by his treatment of her condition with certain prescribed medications which resulted in the subject motor vehicle accident. However, the Hospodar court addressed this issue by explaining the DiMarco court did find liability due to the physician’s negligence because of the specific condition of a communicable disease, but where the condition is not communicable, the same conclusion cannot necessarily be reached. Hospodar, 885 A.2d at 990, citing Witthoeft at 350, 733 A.2d at 628. The Hospodar court also compared their case to Witthoeft in that the patient him or herself was aware of their medical condition, seizure disorder and poor vision, respectively, and it was the patient who was in the best position to know the effects that condition had on driving abilities. Hospodar, 885 A.2d at 990.

Here, too, although the physician’s actions or inactions may have contributed to the patient’s condition and failed to prevent the patient from driving, the holdings in Witthoeft and Hospodar both conclude that no third-party liability exists under such circumstances.

Even accepting all allegations in the complaint as true, it is clear from the case law that no cause of action exists under these circumstances and no recovery is possible on behalf of plaintiff. The consistent line of opinions by our Superior and Supreme Courts have made clear that a liability does not extend to a physician for injuries suffered by a third party in an automobile accident caused by the physician’s patient. As no cause of action exists against defendants, plaintiffs’ complaint is dismissed.

As defendants’ demurrer is granted, we will not address their objection to the claim for punitive damages, as it is now moot.

In light of the foregoing we enter this order:

ORDER

And now, May 5, 2006, it is hereby ordered, directed and decreed that the defendants’ preliminary objections in the nature of a demurrer to plaintiffs’ second amended complaint are granted in conformity with the above and plaintiffs’ second amended complaint is dismissed for failure to state a claim upon which relief can be granted.