author: HORGOS, J.,

text:
    Bruni v. Exxon Corp.

      C.P. of Allegheny County,
    no. GD94-17270.

      Alan Miller, for plaintiffs.

      Robert Lehman and Gary Hunt, for defendant Exxon Corp.

      Zan Ivan Hodzic, for Shipeek.

      DavidRegoli, for defendant Nichols.
    June 13, 2001
   HORGOS, J.,

Plaintiffs filed a complaint in civil action as a class action against defendants, Exxon Corporation and Ronald S. Nichols, t/d/b/a Ron’s Exxon, seeking compensatory and punitive damages sustained as a result of an alleged gasoline leak from the Exxon service station operated by Nichols. Plaintiffs have asserted claims for damages under the Pennsylvania Storage Tank and Spill Prevention Act, 35 P.S. 6021.101 et seq. as well as public nuisance, private nuisance, trespass and negligence.

The cause of action arose from plaintiffs’ claim that they were exposed to toxic fumes from gasoline which leaked from Ron’s Exxon, a gasoline station located at the comer of 40th Street and Penn Avenue in the City of Pittsburgh, from approximately July 1, 1994 through January 31, 1995. Plaintiffs further claim that they suffered damages from occasional intermittent subsequent episodes caused by heavy rains which allegedly flushed gasoline residue from contaminated soil at the service station. Plaintiffs aver that gasoline was permitted to leak from the Exxon service station into adjacent underground telephone vaults, sewers and other underground structures. Fumes from this gasoline, according to plaintiffs, entered the underground sewerage system and other underground pathways and ultimately entered into the basements of dwellings and the surrounding neighborhood in an area consisting of approximately 300 residential dwelling units.

Plaintiffs seek compensatory damages for sickness, discomfort, emotional distress and the alleged trespass and substantial interference with the private use and enjoyment of their private property caused by exposure to the gasoline fumes. Plaintiffs also seek punitive damages based on Exxon’s alleged willful, reckless and outrageous conduct in its denial of responsibility for the leak and the resulting extension of the period of time during which plaintiffs were exposed to the gasoline fumes. The court dismissed the counts of plaintiffs’ complaint seeking punitive damages against defendants.

Following a certification hearing, the court entered an order certifying the case as a class action on June 10, 1998. The class was defined as:

“All individuals, who between July 1,1994 and January 31, 1995, resided within an area in the Bloomfield/ Lawrenceville section of Pittsburgh bounded on the west by 39th Street, on the north by Penn Avenue, on the east by Main Street and on the south by Howley Street and who during said period were exposed in their residences and on adjacent property to gasoline fumes from gasoline which leaked from underground storage tanks on the premises of Ron’s Exxon service station located at the comer of 40th Street and Penn Avenue and who suffered compensable damages as a result of such exposure.”

The case was bifurcated as to liability and damages. The first phase was tried without a jury from June 7 through June 9,2000 and June 23 through June 26,2000. The court will address the issue of liability in this opinion.

At trial, the following facts were established. Defendant, Exxon Corporation, was the owner of the underground storage tanks and equipment that was part of a gasoline dispensing system, including the lines and dispenser at an Exxon service station known as Ron’s Exxon located at 40th Street and Penn Avenue, Pittsburgh, Pennsylvania. (Tr. 6/8/00, p. 11.) Exxon supplied all gasoline sold at Ron’s Exxon. (Exxon’s answer to second amended complaint, paragraph 20.) Defendant Nichols managed the operation of the service station as an independent dealer in accordance with an agreement with Exxon. (Exxon’s answer to second amended complaint, paragraph 21, Tr. 6/8/00, pp. 10-11.) Nichols was responsible for the day-to-day operation of the underground storage tanks located at the station, including performing daily inventory reconciliations by gauging the level of gasoline in the tanks and comparing that with the amount of product sold in order to check for leaks from the gasoline dispensing system. (Tr. 6/8/00, pp. 13-16, 77.)

In July, 1994, Nichols discovered a measuring error and the end of month July inventory reconciliation showed a loss of gasoline. (Tr. 6/8/00, pp. 27-30.) The gasoline inventory records were provided by Nichols to Exxon on August 29, 1994 during Exxon’s annual inspection of Ron’s Exxon. (Tr. 6/8/00, p. 22.) On September 15, 1994, Nichols told Exxon’s territory manager, Lorraine Pryhuber, that he had detected a loss of plus grade in August. (Pryhuber depo., pp. 39,48; plaintiffs’ exhibit 19.) By September 23, 1994, Lorraine Pryhuber was aware of the loss of gasoline at Ron’s Exxon. (Pryhuber depo., pp. 76, 86, 89; plaintiffs’ exhibit 28.) Ms. Pryhuber prepared a memorandum for Daneen Zeno, an environmental specialist in charge of Exxon’s investigation, and Exxon’s Jack Adams. (Plaintiffs’ exhibit 28.) No report was made to the DER at that time.

Individuals in the neighborhood began smelling gasoline odors in their homes sometime in late July to early August 1994. (Tr. 2/3/97, p. 61; Tr. 6/7/00, pp. 11, 92, 135,158,196-97; Tr. 6/8/00, p. 155.) Calls complaining of the gasoline fumes to the Pittsburgh Fire Bureau began around this time. (Tr. 2/3/97, p. 38.) Class representative Arthur Nardini spoke to various neighbors and contacted DER, the fire department and the health department about the gasoline odors. (Tr. 6/7/00, pp. 17-19.) Based on complaints of gasoline odors in the area, DER began its investigation and on September 13,1994, DER’s Michael Hartley visited the neighborhood and smelled gasoline odors. (Tr. 6/8/00, p. 103.) On September 23, 1994, the Pittsburgh Fire Bureau, DER, and the Allegheny County Health Department investigated Ron’s Exxon as the possible source of gasoline odors and fumes reported by plaintiffs as invading their homes. (Exxon’s answer to second amended complaint, paragraph 25; Tr. 6/8/00, pp. 74-80.) Fire bureau personnel, including Captain Thomas Kelly, went into various homes, including the homes of representative plaintiffs Nardini, Durkin and Wisniewski and smelled gasoline. (Tr. 2/3/97, pp. 44-45.)

On September 23,1994, the fire bureau ordered Ron’s Exxon to shut down based on its determination that a release of gasoline had occurred at the station and based on large quantities of gasoline found in the underground Bell Atlantic vaults at the comer of 40th Street and Penn Avenue. (Tr. 2/3/97, pp. 39-41, 45-46; Zeno depo., pp. 60-61.) On September 26,1994, Captain Kelly allowed the station to reopen after the line leaks were repaired. (Tr. 2/3/97, p. 50.)

Residents continued to call various investigating agencies to report gasoline fumes, and gasoline odors were detected by fire bureau personnel on several occasions during September through December 5,1994 at various locations through the neighborhood. (Tr. 2/3/97, pp. 53, 71,76-80,92-93.) During this period, the fire bureau set up a 911 number for residents in the area to call if they had gasoline vapors. (Tr. 2/3/97, p. 74.) The fire bureau responded to numerous calls complaining of gasoline odors. (Tr. 6/7/00, p. 148.)

Captain Kelly of the Pittsburgh Fire Bureau testified that there was “no doubt in my mind” that it was gasoline vapors present in the homes of the plaintiffs. (Tr. 2/ 3/97, p. 45.) Samples of air collected by the Allegheny County Health Department and consultants for plaintiffs showed the presence of the constituents of gasoline, i.e. benzene, toluene, ethylbenzene and xylene. (Tr. 6/26-28/ 00, p. 48; plaintiffs’ exhibits 197 A-D.) On October 5, 1994, DER and the fire bureau held a meeting with Exxon and DER required Exxon to conduct an investigation of its property to determine the extent of the contamination problem and address what the agency viewed as an immediate problem of gasoline vapors in the sewers and in the homes of the plaintiffs. (Tr. 6/8/00, p. 82.) DER concluded that there was a gasoline problem in the neighborhood that originated from Ron’s Exxon station and wanted Exxon to implement interim remedial measures. (Tr. 6/8/00, pp. 87, 115-16.)

Exxon took various remedial measures including the installation of vapor extractors at the comer of 40th Street and Penn Avenue on its own property and one over the Bell vault. (Tr. 2/3/97, pp. 58-60; Tr. 6/8/00, p. 117.) On October 10,1994, the fire bureau again ordered the station shut down. (Tr. 2/3/97, p. 59.) Exxon continued to conduct chemical tests in the area and concluded that the problem did not emanate from Ron’s Exxon. The Exxon station was allowed to reopen on October 13, 1994. (Tr. 2/3/97, p. 61.) Continuing reports of gasoline vapors invading plaintiffs’ homes and the neighborhood led to an order closing the station again on October 14, 1994 while the fire hydrants in the neighborhood were turned on and the sewers flushed. (Tr. 2/3/97, p. 61.)

On October 27, 1994, the DER determined that Exxon’s remedial measures had been ineffective in preventing the offsite migration of vapors and petroleum product and directed Exxon to take additional remedial measures. On November 1, 1994, the fire bureau found another release under one of Exxon’s dispensers due to a leaking valve. (Tr. 2/3/97, p. 89; Zeno depo., p. 252.) On November 1, 1994, the fire bureau again ordered that the Exxon station be closed because it was believed to be the source of the gasoline vapor problem in the neighborhood. (Tr. 2/3/97, pp. 85-86.) Exxon continued to take remedial measures including the excavation of contaminated soil and to intercept the gasoline flowing offsite.

Plaintiffs offered the testimony of David R. Perry who is a registered professional geologist in Pennsylvania. Mr. Perry has conducted thousands of investigations of soil and groundwater contamination occurring underground and owns American GeoSciences, a Murrysville company, which concentrates in environmental investigations involving the location and migration of contaminants in soil and groundwater. (Tr. 7/17/97, pp. 7-10; Tr. 6/9/00, p. 162.) Based on a review of the reports prepared by Exxon’s consultants, the information generated by DER, the Allegheny County Health Department and the fire bureau, reports prepared by Exxon’s expert and the testimony of various plaintiffs, Mr. Perry concluded that Ron’s Exxon was the only source of gasoline vapors detected by plaintiffs in their homes. (Tr. 6/9/00, pp. 56, 139, 151-53.) Mr. Perry concluded that the soils and groundwater at the Exxon station were contaminated with the constituents of gasoline at levels far exceeding any statewide regulatory criteria. (Tr. 6/9/00, pp. 57,60.) Mr. Perry also examined other potential sources of vapors to the plaintiffs’ homes in the class area. He evaluated other sites including the Atlantic service station in the same neighborhood and Fisk Auto, where seven abandoned underground storage tanks were removed. Mr. Perry con-eluded that the contamination of Fisk Auto was localized and did not cause any offsite contamination. (Tr. 6/ 9/00, pp. 73-74; Tr. 6/26-28/00, p. 41.) Mr. Perry also concluded that the contamination at the Atlantic service station site was minor and that there were no preferential pathways for vapors to travel off that site. (Tr. 6/9/ 00, pp. 70-71.) Moreover, DER’s Mr. Flartley also concluded that Fisk Auto was not the cause of any offsite problems. (Tr. 6/8/00, p. 95). This is the same conclusion as reached by Mr. Perry. (Tr. 6/9/00, pp. 72-73.)

Defendant’s expert, Mr. McNally, identified various other possible sources of the gasoline vapors, but he failed to state to a reasonable degree of certainty that any of them caused the vapors in the homes of the plaintiffs. (Tr. 6/26-28/00, pp. 443-53,544-47.) On the other hand, Mr. Perry explained the nature of the release of gasoline at the Exxon station, noting that more than 200 gallons of gasoline were spilled at the station, causing contamination of the soils and groundwater both on and off the station. (Tr. 6/9/00, pp. 60-61.) Mr. Perry convincingly explained the manner in which the large amount of gasoline which flowed offsite to the Bell Atlantic vault volatilized, with the resulting vapors traveling in all directions along the telephone vault and conduit system along Penn Avenue and along sewer lines and other conduits into plaintiffs’ homes. (Tr. 6/9/00, pp. 62-111.) In sum, the court finds the testimony of plaintiffs’ expert, David Perry, that the release from the Exxon station was the cause of the vapors in plaintiffs’ homes to be credible.

Defendant has argued at all stages of the proceedings that plaintiffs may not recover damages for personal injuries under the Tank Act. This court must follow the interpretation of the Tank Act and the principles regarding the citizen suit provisions under the Act set forth by the Pennsylvania Supreme Court in Centolanza v. Lehigh Valley Dairies Inc., 540 Pa. 398, 658 A.2d 336 (1995) and the Pennsylvania Superior Court in Wack v. Farmland Industries Inc., 744 A.2d 265 (Pa. Super. 1999).

The Tank Act was enacted to. prevent releases of petroleum and other regulated substances from storage tanks, to provide liability for damages sustained in violation of the Act and to require prompt cleanup of the releases regulated by the Act. 35 P.S. 6021.102(b). Section 1305 of the Tank Act grants a citizen the right to “compel compliance” with the Act. In Centolanza, the Pennsylvania Supreme Court interpreted this citizen suit provision of the Act to mean that a person may maintain an action under the Tank Act to recover costs for clean up and diminution in property value. Id., 540 Pa. at 404, 658 A.2d at 340. The court examined the Act’s goal of promoting prompt cleanup and reasoned that the Act must be liberally construed to create a private cause of action because it is a remedial statute and there is no language to the contrary in the Act.

The Pennsylvania Superior Court further expanded the “compel compliance” language of the Tank Act and held that a private citizen may bring an action for personal injury pursuant to the Tank Act. The Superior Court relied on the Pennsylvania Supreme Court’s analysis in Centolanza that the purpose of the Act is to “provide liability for damages within this Commonwealth as a result of a release” and the Supreme Court’s directive to interpret section 6021.1305 liberally. Wack, supra. 744 A.2d at 269.

Both the Pennsylvania Supreme Court in Centolanza and the Pennsylvania Superior Court in Wack spoke clearly and definitively regarding a private citizen’s right to bring an action under the Tank Act. In Centolanza, the Supreme Court held that the Act permits private actions to recover costs for cleanup and diminution of property value; in Wack, the Superior Court held that an individual may maintain a claim for personal injury under the Act. Accordingly, this court finds that there is no bar to plaintiffs’ action for cleanup costs and personal injuries sustained by plaintiffs if caused by the leakage from the storage tanks owned or operated by defendants.

Defendants also argue that plaintiffs failed to comply with the notice requirements of the Tank Act. In order to assert a cause of action under section 1305(c), plaintiffs must give notice to the alleged violator and DER 60 days before filing suit. Section 1305(e) provides that such notice is not required when there is a violation which is an “imminent threat to the health or safety of the plaintiff or would immediately effect a legal interest of the plaintiff.” 35 P.S. 6021.1305(e). It is not disputed that plaintiffs did not give 60 days notice to defendants or DER prior to filing suit.

The gasoline released from the Exxon station was flowing offsite into telephone vaults and the gasoline vapors were entering the homes of the plaintiffs when notice was given on October 7, 1994 and when the complaint was filed on October 28, 1994. Individuals in the area called the fire bureau to complain about gasoline fumes in late July or early August 1994. (Tr. 2/3/97, p. 38.) DER began its investigation in the area in September 1994 and the Pittsburgh Fire Bureau, DER and the Allegheny County Health Department investigated Ron’s Exxon as a possible source of the gasoline odors on September 23, 1994. The fire bureau ordered Ron’s Exxon to shut down on September 23,1994 based on its determination that a release of gasoline had occurred at the station and based on the large quantities of gasoline found in the underground Bell Atlantic vaults nearby. (Tr. 2/3/97, pp. 39-41,45-46; Zeno depo., pp. 60-61.) Again on October 10, 1994, the fire bureau ordered Ron’s Exxon to close. (Tr. 2/3/97, p. 59.) In addition, samples of air collected by the Allegheny County Health Department and consultants for plaintiffs in the homes of several plaintiffs showed the presence of constituents of gasoline, i.e., benzene, toluene, ethylbenzene and xylene. (Tr. 6/26-28/00, p. 48, plaintiffs’ exhibits 197 A-D; plaintiffs’ exhibits 260 A-L.) Further, DER and the fire bureau held a meeting with Exxon on October 5,1994 and required Exxon to conduct an investigation of its property to determine the extent of the contamination and address the problem of the gasoline vapors in the sewers and residences. DER instructed Exxon to implement interim remedial measures to “stop the migration of gasoline off the property into the vault and sewers.” (Tr. 6/8/00, pp. 115-16.)

These incidents are only a sampling of the many such incidents from which the inference of the threat of imminent harm may be drawn. In such a situation, where the violation complained of constitutes an imminent threat to the health or safety of the plaintiffs, the notice provision of section 6021.1305(d) may be waived.

Defendants also argue that plaintiffs do not have a claim under section 1305(c) of the Act because DER was diligently enforcing the Tank Act prior to the commencement of this action and Exxon was voluntarily engaging in corrective action under DER’s oversight. The Act precludes a private action under certain circumstances:

“No such action may be commenced where the department has commenced and is diligently prosecuting a civil action in a court of the United States or the Commonwealth or is in litigation before the Environmental Hearing Board to require the alleged violator to comply with this Act or any rule, regulation or permit issued under this Act.” Section 35 P.S. 6021.1305(c).

There is certainly a logical basis to defendants’ argument. It is undisputed that DER was supervising cleanup efforts and that Exxon was talcing some remedial action. Plaintiffs sought no injunctive relief to “compel compliance” with the Tank Act. Defendant argues that if a violator of the Act could only avoid private citizen damage suits under the Act by forcing DER to file an action under 35 P.S. 6021.1305(a), the remedial goals of the Act would be frustrated because voluntary, prompt cleanups of contamination by responsible parties would be discouraged.

The language of the statute, however, is clear that unless the department has commenced a civil action, a private action is permitted. The DER’s involvement in the situation is not equivalent to “commencing and diligently prosecuting a civil action in a court . . . .” This court cannot disregard the clear language of the Act. Construing the Act to preclude a private action when the DER involvement falls short of the “commencement” of an enforcement action in court would not only run afoul of the clear language of the statute but would also ignore the Pennsylvania Supreme Court’s directive that the private action provision of section 1305(c) be liberally construed to effectuate the purposes of the Act. Centolanza, supra, 540 Pa. at 405, 658 A.2d at 340. The DER did not commence any action in court against Exxon. This court is bound by the clear language of the Act and the instruction of the Pennsylvania Supreme Court and therefore finds that the plaintiffs’ private action under section 1305(c) is proper.

Moreover, plaintiffs correctly point out that the same statutory language exists in the Federal Clean Water Act, 33 U.S.C. §1365(b), which provides that a citizen suit may not be commenced if the USEPA or the state has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a state, to require compliance with the standard. Courts construing this language have held that the phrase “commencing and diligently prosecuting a civil action in a court” means just that: the federal or state agency must have commenced an actual civil action in a court against the violator before a citizen suit is precluded. See Illinois Public Interest Research Group v. PMC, 835 F. Supp. 1070 (N.D. Ill. 1993); Weielisco Creek Watershed v. Kocher Coal, 641 F. Supp. 712 (E.D. Pa. 1986). The court can find no basis on which to interpret identical language in the Tank Act differently and must conclude that plaintiffs’ civil suit is permitted under these circumstances.

Section 6021.1311 of the Tank Act contains a rebut-table presumption of liability which shifts the burden of proof to the defendants. The Pennsylvania Supreme Court has held that the presumption is available in a private action because a private action brought under the Tank Act is no different than one brought by the Commonwealth. Centolanza v. Lehigh Valley Dairies Inc., supra, 540 Pa. at 407, 658 A.2d at 341.

Section 1311 of the Tank Act provides:

“General rale—except as provided in subsection (b), it shall be presumed as a rebuttable presumption of law in civil and administrative proceedings that a person who owns or operates an aboveground or underground storage tank shall be liable, without proof of fault, negligence, or causation for all damages, contamination or pollution within 2,500 feet of the perimeter of the site of a storage tank containing or which contained a regulated substance of the type which caused the damage, contamination or pollution. Such presumption may be overcome by clear and convincing evidence that the person so charged did not contribute to the damage, contamination or pollution.”

Therefore, in order for the presumption to apply, plaintiffs must establish that there was a release of gasoline at the Exxon station, that the substance contained in the tanks is the same substance that caused plaintiffs’ damages and that plaintiffs reside within 2,500 feet of the perimeter of the Exxon service station.

Plaintiffs have attempted to expand the class to include individuals who are not within the defined class for this action. The class was defined as individuals who resided within a certain geographic area between July 1, 1994 and January 31,1995. (See order of court, 6/10/98 supra.) Plaintiffs now seek to include the owners and employees of businesses located in the area and City of Pittsburgh firemen who occasionally stayed overnight at the firehouse within the defined class area. These individuals who did not reside within the geographic area as set forth in the court’s order of June 10,1998 between July 1, 1994 and January 31, 1995 are not members of the class.

The presumption does apply to those plaintiffs who resided within the defined area between July 1,1994 and January 31, 1995. There was a release of gasoline from the storage tanks located at the Exxon service station. All of the plaintiffs as defined by the court’s order of June 10,1998 reside within the 2,500 feet of the perimeter of the storage tanks at the Exxon station. The court finds from the evidence that it was clearly gasoline vapors that invaded plaintiffs’ homes. The statutory 2,500 foot presumption therefore, applies.

In order to rebut the presumption, defendants must establish by clear and convincing evidence that they did not contribute to the gasoline vapors in the plaintiffs’ homes. It is not enough for defendants to show that a different source contributed to the problem unless they can demonstrate that the Exxon service station did not contribute to the gasoline vapors. Lehigh Gas and Oil Co. v. Pennsylvania Department of Environmental Resources, 611 A.2d 241 (Pa. Commw. 1995), appeal denied, 546 Pa. 650, 683 A.2d 886 (1996).

Defendants failed to present clear and convincing evidence that Ron’s Exxon did not contribute to the gasoline vapors in the class area. David Perry, plaintiffs’ expert, explained the pathway by which gasoline released from Ron’s Exxon traveled offsite, entered the Bell Atlantic telephone vaults, volatilized with the gasoline vapors migrating in all directions along the Bell Atlantic telephone vault and conduit system and then along preferential pathways into plaintiffs’ homes. He further explained how gasoline and gasoline vapors would infiltrate the sewer system and would migrate inside and along the sewer system with the vapors traveling in all directions along various preferential paths of least resistance into plaintiffs’ homes. (Tr. 6/9/00, pp. 62-111.) The rebuttal evidence presented by defendants’ expert, Mr. McNally, failed to establish by clear and convincing evidence that Exxon did not “contribute” to the contamination and thus failed to rebut the presumption. Mr. NcNally conceded that Exxon was probably the cause of gasoline vapors to some of plaintiffs’ homes. (Tr. 6/26-28/00, pp. 433, 543.)

Mr. McNally divided the class into four distinct areas. While Mr. McNally conceded that Exxon was the cause of the gasoline vapors in one area, he contended that the release from the Exxon station was not the cause of gasoline vapors in the other three areas. He was unable, however, to identify with any degree of scientific certainty any other source of the gasoline vapors in two of those areas. He conceded that there were not any confirmed sources of vapors in two of the areas to allow him to state to a reasonable degree of certainty that any of those other sources caused odors in the plaintiffs’ homes. (Tr. 6/26-28/00, pp. 443, 453, 546-47.)

In the fourth area, Mr. McNally opined that seven underground storage tanks excavated from an auto mart at the comer of Fisk and Penn Avenue was the cause of the vapors. Michael Hartley, DER’s hydrogeologist and the state’s representative involved in the investigation of gasoline vapors in the area, clearly testified that any contamination resulting from those seven underground storage tanks was localized to that site and that Fisk Auto did not cause any offsite impact. (Tr. 6/8/00, pp. 92-95.) Captain Kelly also testified that the fire bureau did not consider that Fisk Auto was a source of the vapor problem experienced by plaintiffs. (Tr. 2/3/97, pp. 83-84.) The testimony of Mr. Hartley and Mr. Perry was credible and persuasive and the court finds that the release from the Exxon station was a cause of the vapors in plaintiffs’ homes. The court finds that defendants have failed to rebut the 2,500 foot presumption of the Tank Act and finds that defendants are liable under the Tank Act for reasonable costs of corrective action and any personal injury damages which may be established by plaintiffs.

Plaintiffs also seek an award of costs of litigation, including attorneys and expert witness fees under section 1305(f) which authorizes the court, in its discretion, to award costs of litigation “whenever the court determines such award is appropriate.” 35 P.S. §6021.1105(f). Plaintiffs do not provide any compelling reasons for such an award and the court can find none. Although the court has determined that defendants are liable for damages under the Tank Act, no award of attorneys’ and expert witness’ fees shall be made.

Plaintiffs have also asserted tort claims for both private nuisance and public nuisance. The Restatement (Second) of Torts defines a public nuisance as “an unreasonable interference with a right common to the general public.” Restatement (Second) of Torts §821B(1). A release that violates the provisions of the Tank Act constitutes a public nuisance. Section 1304 of the Tank Act provides: “a violation of this act or of any order or regulation adopted by the department or of permits issued by the department shall constitute a public nuisance.” 35 P.S. §6021.1304. The statute further declares that storage tank releases are a threat to the public health and safety. 35 P.S. §6021.102(b). Centolanza v. Lehigh Valley Dairies Inc., supra at 478, 635 A.2d at 150.

Moreover, the Tank Act declares that “to cause the air, soil or water pollution” is unlawful conduct and a violation of the Tank Act. 35 P.S. §6021.1310. The Act also provides that the owner and operator of a storage tank “shall not allow ... a release to occur from a storage tank.” It is clear, therefore, that the violation of the Tank Act which has been established sets forth a claim for damages as a public nuisance. While the court finds defendants liable for the tort of public nuisance, the burden of proving damages which may be difficult under these circumstances, remains with the plaintiffs in the next phase of these proceedings.

Restatement (Second) of Torts defines private nuisance:

“Section 822. General rule. One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another’s interest in the private use and enjoyment of land, and the invasion is either;
“(1) intentional and unreasonable, or
“(2) unintentional and otherwise actionable under the rules controlling liability for negligence or reckless conduct, or for abnormally dangerous conditions or activities.”

Plaintiffs argue that the gasoline released at the Exxon station was the cause of gasoline vapors entering plaintiffs’ homes so that defendants’ conduct is the legal cause of the invasion of plaintiffs’ interest in the private use and enjoyment of their land.

While the defendants’ conduct cannot meet the requirement for an intentional invasion, defendants’ conduct is actionable under the standards controlling liability for negligence in Pennsylvania. In fact, the release of gasoline from the station and the subsequent contamination of the soil, groundwater and the air is a violation of the Tank Act and per se negligent. In Centolanza v. Lehigh Valley Dairies Inc., the Pennsylvania Superior Court in an opinion which was affirmed by the Pennsylvania Supreme Court found that violation of the Tank Act is negligence per se. Centolanza v. Lehigh Valley Dairies Inc., 430 Pa. Super. 463, 478, 635 A.2d 143, 150 (1993), aff’d, 540 Pa. 398, 658 A.2d 336 (1995).

Plaintiffs have also asserted a trespass claim in this action. A trespass is committed when one intentionally enters land in the possession of another, or causes a thing to do so. Restatement (Second) of Torts §158; Jones v. Wagner, 425 Pa. Super. 102, 624 A.2d 166 (1993). “Intent” in this context means either that the “actor” desires to cause the consequences of his act, or he believes those consequences are substantially certain to result from it. United Services Auto Ass’n v. Elitzky, 358 Pa. Super. 362, 374, 517 A.2d 982, 989 (1986).

The court finds that defendants’ actions were not intentional nor did defendants have reason to believe that the consequences of harm to the plaintiffs were substantially certain to result from the gasoline leak. Defendants did, in fact, take remedial measures and did cooperate with the investigating authorities in an attempt to prevent harm to the community. Defendants are not liable for the tort of trespass.

Finally, plaintiffs have asserted a cause of action in negligence against defendants. The elements of negligence are the existence of a duty imposed by law or a recognized standard of care, breach of that duty, proximate cause and damages, Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998). The Tank Act establishes standards for owners and operators of underground storage tanks containing gasoline and establishes the duty owed by such owners and operators. The Act makes it unlawful for a person to cause or allow a release of gasoline to occur from a storage tank and related equipment or to cause air, soil or water pollution. 35 PS. §6021.1310. Here, gasoline was released from the storage tank at Ron’s Exxon causing contamination of the soil and groundwater at the property. The gasoline released from the station flowed offsite into the Bell Atlantic vaults. The releases were, therefore, violations of the Tank Act and establish a breach of the duty imposed not to allow a release to occur from a storage tank. The release caused the vapors to invade plaintiffs’ homes and resulted in the various physical symptoms experienced by plaintiffs. Several representative plaintiffs whose cases were tried during the first phase of this proceeding testified that they suffered various physical symptoms from breathing the gasoline vapors, including nausea, headaches, watery eyes, sore throats, and sinus problems. Plaintiffs’ expert, Dr. Miller, testified that such symptoms are caused by exposure to gasoline vapors. In short, the court finds defendants’ conduct negligent and finds that the causation for plaintiffs’ injuries has been established.

The damages suffered by plaintiffs will be the subject of the second phase of this proceeding. The court has found that the defendants have violated the Tank Act and that the rebuttable presumption of section 1311 of the Tank Act is applicable. Further, the court has found that defendants are liable for public and private nuisance and negligence. No property damage has been alleged. It remains plaintiffs’ burden to prove damages with reasonable certainty in the second phase of the proceedings.

NON-JURY VERDICT

And now, June 13, 2001, the court finds in favor of plaintiffs and against the defendants, Exxon Corporation and Ronald S. Nichols, t/d/b/aRon’s Exxon, on plaintiffs’ claims under the Pennsylvania Storage Tank and Spill Prevention Act, public nuisance and private nuisance and negligence and, in favor of defendants, Exxon Corporation and Ronald S. Nichols, t/d/b/a Ron’s Exxon, on plaintiffs’ claim for trespass. Damages are to be determined after further proceedings.


source: Caselaw Access Project

author: BAER, J.,

license: Public Domain

text:
    Woods v. Egler

      C.P. of Allegheny County,
    no. GD 98-7998.

      Herbert A. Terrell, for plaintiffs.

      Kathryn L. Simpson, for defendant.
    August 8, 2001
   BAER, J.,

Plaintiffs-appellants are Robert Woods and three corporations, First American Corporation, Approved Mortgage Corporation and G. Woods Mortgages owned and operated by Woods. Defendant/appellee is Attorney James F. Egler Jr. Woods and Corporations brought this action against Egler claiming legal malpractice, breach of contract, misrepresentation and breach of fiduciary duty. We granted Egler’s motion for compulsory nonsuit on all counts, and Woods and Corporations have appealed.

Woods had been in the business of purchasing, selling and liquidating mortgages since 1960. In 1982, Woods began to focus on buying purchase money mortgages. At some point, Woods incorporated Corporations and began to conduct the business of buying purchase money mortgages through them. In 1993, Woods decided to sell shares in Corporations to investors sought from the general public. Woods represented to the public that the shares being sold in Corporations were a safe investment because they were collateralized by the underlying mortgages. Woods sold 12 to 14 shares in Corporations for $158,000 within a couple months of when he began to seek investors.

Not long after Woods began seeking investors for Corporations, the Federal Securities and Exchange Commission (SEC) brought a lawsuit to enjoin Woods’ public offering. The case was litigated in the United States District Court for the Western District of Pennsylvania. Eventually the court agreed with the federal government and enjoined Woods from selling shares in Corporations. Woods’ testimony is that at that juncture Corporations owned approximately 22 mortgages. The federal court decided these mortgages should be sold and the money raised should be returned to the investors. The court appointed First Keystone Financial Management as Receiver and Aderson, Frank and Steiner, P.C., a Pittsburgh law firm, as counsel for Receiver.

According to Woods, Receiver eventually collected $260,000 and spent $134,000. Receiver and Law Firm eventually petitioned the federal court for approval of these fees. Woods, through counsel, filed an answer contending that the fees and expenses were too high. The issue went to hearing before the federal court. During that hearing, in open court, Woods fired his lawyer. The court permitted him to represent both himself and Corporations for the duration of the proceedings at the trial court level. After the hearing, the court entered an order and supporting opinion dated May 20, 1996, approving the fees and expenses.

Woods filed a timely appeal to the United States Circuit Court for the Third Circuit on behalf of himself and Corporations. The Third Circuit notified Woods that while he could represent himself, he could not represent Corporations. Woods had been advertising for lawyers for years and in November of 1993 had received a response to his advertisement from Egler. Woods now thought of Egler as appropriate counsel for Corporations because Egler’s background included stints as counsel to the Pennsylvania Securities Commission and as an assistant district attorney. During the course of their telephone conversations and a meeting, Woods learned that Egler also had appellate experience.

In late August of 1996, Woods gave Egler various documents related to the appeal of the approval of Receiver’s and Law Firm’s costs and fees. Egler said he would look them over to decide whether he would accept the case. He subsequently told Woods he would represent Corporations and that the case would take 20 hours to litigate. Egler agreed to an hourly fee of $50, and on August 26, 1996, acting on behalf of Corporations, Woods paid Egler $1,000. Woods’ testimony is that at this juncture he believed Egler would protect the Corporations’ interest by filing an appeal.

Woods and Egler never spoke again before October 7, 1996, when the Third Circuit dismissed the appeals filed by Corporations. In substance, what the Corporations had not done was to have an attorney enter an appearance on their behalf. On October 26,1996, Egler returned Woods’ file. Woods individually filed a brief and fully litigated his appeal before the Third Circuit in his individual capacity. The Corporations did not participate further after their cases were dismissed. The Third Circuit eventually affirmed the trial court and thereby approved Receiver’s and Law Firm’s fees and costs.

In 1998, Woods and the Corporations brought this action against Egler contending that he had committed legal malpractice, breached the contractual and fiduciary duties arising when a client retains an attorney and committed the tort of misrepresentation during his representation of Corporations. The case eventually went to trial before a jury and at the conclusion of Woods’ case, this court granted Egler’s motion for compulsory nonsuit. Woods and Corporations filed post-trial motions which we denied. They then appealed. This is our Rule 1925 opinion explaining our grant of compulsory nonsuit.

As mentioned in previous footnotes, we are well aware that compulsory nonsuit can only be granted after a plaintiff is given the benefit of all favorable evidence, all reasonable inferences drawn therefrom, and the resolution of any conflict in evidence, and still clearly has not established a cause of action. Matthews v. Unisource Worldwide Inc., 748 A.2d 219, 220 (Pa. Super. 2000); Joyce v. Boulevard Physical Therapy & Rehabilitation, 694 A.2d 648 (Pa. Super. 1997), appeal denied, 559 Pa. 711, 740 A.2d 1148 (1999); Storm v. Golden, 371 Pa. Super. 368, 373, 538 A.2d 61, 63 (1988), appeal denied, 524 Pa. 630, 574 A.2d 71 (1989).

With this standard firmly in mind, we turn to why we granted nonsuit beginning with Woods’ and Corporations’ claim that Egler committed legal malpractice. To state a claim for legal malpractice, the aggrieved client must establish: (1) that the parties were in an attorney-client relationship; (2) that the attorney failed to exercise ordinary skill or knowledge; and (3) that the attorney’s failure to exercise ordinary skill and knowledge was the proximate cause of damage to the client. Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (1993); McMahon v. Shea, 547 Pa. 124, 688 A.2d 1179 (1997); Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58 (1989). For purposes of this appeal, we accept that Corporations had established an attorney-client relationship with Egler. We therefore must consider whether Woods and Corporations set forth a cause of action that Egler failed to exercise ordinary skill and knowledge, and whether any such failure was the proximate cause of damage to Woods or Corporations.

As with other malpractice actions, expert testimony is required to establish negligence in a legal malpractice action unless the issue to be put to the jury is so simple that a layperson can understand it without expert testimony. Rizzo v. Haines, supra, at 502, 555 A.2d at 66; Thompson v. Glenmede Trust Co., 1996 WL 635682 (E.D. Pa.) man. denied, 56 F.3d 476 (interpreting and applying Pennsylvania law in granting the federal equivalent of compulsory nonsuit in a legal malpractice action for failure to produce expert testimony); see also, Bierstein v. Whitman, 360 Pa. 537, 541, 62 A.2d 843, 845 (1949) (a dental malpractice case dismissed by nonsuit for failure to present expert testimony).

Toward the end of Woods’ and Corporations’ cases, but before they rested, we called counsel to side-bar to insure that we understood their theories. We were well aware Woods and Corporations did not have an expert and Egler would be moving for compulsory nonsuit on this basis after all plaintiffs rested. The question we were pondering was whether the jury was capable, without the benefit of expert testimony, of understanding whether the failure to enter an appearance constituted legal malpractice under the facts of this case. However, Woods and Corporations desired to argue that Egler’s malpractice went much further. At pages 113-20 of the transcript, Woods and Corporations’ counsel stated explicitly and insistently his clients’ desire to argue that Egler committed malpractice by failing to investigate all of the files adequately, failing to review the case sufficiently to determine whether it was meritorious, failing to skillfully prepare the case and failing to enter an appearance. Moreover, at page 122, Woods and Corporations’ counsel argued that it was malpractice for Egler to fail to go to the federal clerk of court’s office to review the docket and file there.

Without expert testimony to guide it, a jury is simply not able to determine the nature, type and extent of review and preparation an attorney must go through before entering an appearance and prosecuting a case on appeal. Must the attorney merely read the prothonotary’s file, or, in addition, retrieve and review the original trial transcripts and exhibits? Must the attorney check factual representations in the trial transcript against original sources to determine the veracity of his clients and their witnesses? Must an attorney research the case sufficiently to determine if it has some merit and, if so, then go on to evaluate the case’s likelihood of success? How long should all of this take and what should be done in the process?

The law is settled that a jury cannot be permitted to reach a decision on the basis of speculation or conjecture. Cruet v. Certain-Teed Corp., 432 Pa. Super. 554, 557, 639 A.2d 478, 479 (1994); Biddle v. Johnsonbaugh, 444 Pa. Super. 450, 664 A.2d 159 (1995). If this case had gone to the jury on this record, with Woods and Corporations making the proposed arguments, this rule would have clearly been violated and there would have been substantial potentiality of an unjust verdict. The issues, as insisted upon and outlined by Woods and Corporations’ counsel, were far too complex to be presented to a jury without the guidance of expert testimony.

The third element of a legal malpractice action is damage to the client. To show damage, the client must establish that it would have prevailed in the underlying action. This is known as winning the “case within the case.” Kituskie v. Corbman, 552 Pa. 275, 714 A.2d 1027, 1030 (1998); Rizzo v. Haines, supra, 520 Pa. at 499, 555 A.2d at 65(1989,). See also, Duke & Co. v. Anderson, 275 Pa. Super. 65, 71, 418 A.2d 613, 615 (1980). In the instant case, Woods individually litigated it to fruition in the Third Circuit and lost. Woods fired his counsel before Judge Cohill in open court and testified in our case that he did so because he knew more about the facts and was better able to handle the case himself. He litigated fully in the District Court and the Third Circuit losing both times. During the trial we presided over, Corporations and Woods did nothing more than rehash the same evidence. They placed nothing into the record that would indicate that Corporations’ results before the Third Circuit would have been different than the results obtained by Woods. On this ground also, we were required to grant nonsuit.

Woods and the Corporations next claim that we erred by merging their claims for breach of contract, misrepresentation and breach of fiduciary duty into the tort claim, and then dismissing them. While we considered doing that, we did not. A reading of the transcript will reveal that we considered these three additional claims separately, and granted Egler’s motion for nonsuit as to each of them.

We turn first to Woods’ and Corporations’ averments that Egler breached a contract between them. In Duke & Co. v. Anderson, supra, plaintiff employees contended that Duquesne Beer Company and two of its officers had been unjustly enriched when the company withheld death benefits that employees claimed were in substance deferred wages. The Pittsburgh Post-Gazette reported the dispute and the employees’ contentions. The two Duquesne Beer officers named instructed their counsel to file a defamation action. He never did, and after the statute of limitations for defamation had run, the officers sued the attorney contending that he had breached a contract with them.

The trial judge treated the assumpsit claims as a tort action for legal malpractice, and granted a compulsory nonsuit upon finding that employees had not proven that they could prevail on the case within the case. The Superior Court upon thorough and thoughtful analysis found that no public policy would be served by permitting what was substantively a legal malpractice case to proceed in assumpsit and thereby permit a plaintiff to avoid proving the case within the case. Moreover, the court found that two public policies were served by prohibiting malpractice actions from proceeding as contract claims. Lawyers would not feel compelled to file frivolous lawsuits and thereby violate the Canons of Ethics to avoid a contract claim. Id. at 616 citing ABA Code of Professional Responsibility EC 7-4 providing: “[A] lawyer is not justified in asserting a position in litigation that is frivolous.” Additionally, lawyers would not feel compelled to pay damages to avoid embarrassment or humiliation when plaintiffs had not been harmed in the underlying case but, nevertheless, brought or threatened to bring a contract action. Id. On these bases, the Superior Court affirmed the trial court and held that the alleged assumpsit case should be judged by a tort standard and dismissed because employees had not put evidence into the record sufficient to show that there was any likelihood of prevailing on the underlying case. Id., 275 Pa. Super. at 73, 418 A.2d at 616, 617.

In Hoyer v. Frazee, 323 Pa. Super. 421, 470 A.2d 990 (1984), clients claiming an attorney committed error in a real estate action brought a case against the attorney alleging both legal malpractice and breach of contract. As in Duke, the trial court applied a tort analysis to both counts, and found for defendants. The Superior Court analyzed the case and found that the assumpsit claim was identical to the negligence claim and, therefore, sounded in tort. Accordingly, the Superior Court decided it was appropriate to employ a tort analysis in determining the case. Id. at 426, 470 A.2d at 992-93; see also, Storm v. Golden, supra, 371 Pa. Super. at 378, 538 A.2d at 65 (an assumpsit claim is not a true contract claim but, rather, sounds in negligence when it alleges a defendant failed to follow the appropriate standard of care). In the instant case, the gravamen of Woods’ claim is that Egler failed to exercise the ordinary skill and knowledge required by an attorney. Thus, as in the above-cited cases, there is not a true breach of contract claim here. Rather, this is in essence a negligence case and, as already stated, fails to state a claim under that theory.

Egler also contends the same operative facts give rise to a misrepresentation claim and a breach of fiduciary duty claim. There are no facts in this record to indicate Egler misrepresented anything. Additionally, there are no facts to indicate there was a fiduciary duty between Egler and Woods except that which arises in every attorney-client relationship. As with the contract claim, these counts are no more than creative pleadings of what is essentially a legal malpractice case. Accordingly, under the same rationale, these counts were properly dismissed on nonsuit. See Thompson v. Glenmede Trust Co., 1996 WL 635682, 8 at note 11 (E.D. Pa.). (Applying Pennsylvania law and dismissing counts for breach of contract, breach of fiduciary duty and fraud after determining that plaintiff’s complaint was, in substance, a legal malpractice case that failed for failure to provide expert testimony regarding the appropriate standard of care.)

We turn very briefly to the two evidentiary objections preserved by Woods. We note that neither is relevant to the outcome of this case. If Egler’s counsel had never made an objection or we had overruled all of her objections, Woods would have still failed miserably in attempting to state a claim.

Having said this, there was no error. Woods’ attorney called Egler as if on cross and began to scrutinize his legal research. He first asked whether Egler read any cases, to which Mr. Egler responded “yes.” The attorney then asked, “Well, in your research did you read a 1966 case?” There was an objection, which was sustained. Obviously, the question was improperly vague. This issue is simply not worthy of further comment.

The second evidentiary issue arose from Woods’ counsel’s attempt to have his client read into the record testimony from the prior federal litigation concerning the difference between what the Receiver charged and paid for accounting time. Woods attempted to argue this was an “operative fact.” The evidence was hearsay, and properly excluded.

Finally, in closing, we make one comment regarding Woods individually. On top of everything else, his undisputed testimony in this case established that he never retained or desired to retain Egler to represent him, as opposed to Corporations. Thus, there was never an attorney-client relationship between Egler and Woods and therefore neither a duty for tort purposes or any type of contractual relationship. On these bases also, Woods’ claims as an individual fail.

      . In a purchase money mortgage transaction, the owner of real property sells it to the buyer and takes back a mortgage and mortgage note for all or some of the purchase price. The buyer then owes the mortgaged amount to the seller. Woods would go to the seller, pay him a negotiated amount, be assigned ownership of the mortgage and mortgage note and, therefore, own the right to collect the proceeds previously due from buyer to seller.

      . In the vernacular, Woods “went public.”

      . In actuality, it appears beyond dispute that Receiver charged $ 114,881.50 and Law Firm charged $30,351.23. These numbers come from both Attorney Aderson’s testimony and from the record in this case. We, nevertheless, accept Woods’ representation that $134,000 was spent to insure that we have resolved any conflict in evidence in his favor because he suffered nonsuit of his case. See Storm v. Golden, 371 Pa. Super. 368, 373, 538 A.2d 61, 63 (1988).

      . The federal trial court proceedings were before the distinguished jurist and former Chief Judge of the Western District, the Honorable Maurice B. Cohill Jr. Judge Cohill’s opinion was entered as an exhibit in this case. While we do not rely upon it for any substantive evidence, we recommend its reading to give one a flavor of the federal litigation which culminated in the case before us.

      . Woods’ testimony in this regard is confused. Woods had already perfected the appeal on Corporations’ behalf. What Egler needed to do was enter an appearance on behalf of Corporations. Thus, when Woods testified about Egler filing an appeal, what he intended to say was Egler would enter an appearance.
      It is important to remember that all of these facts are vigorously contested. As earlier noted, we are setting forth the history of this case accepting Woods’ and Corporations’ versions of all contested facts because we granted Egler’s motion for compulsory nonsuit.

      . As is discussed, infra, Woods had no attorney-client relationship with Egler. For this reason also, his claim fails.

      . Egler argued that Woods’ failure before the Third Circuit collaterally estopped him and the Corporations from proceeding. As we have decided this case on different grounds, we need not address this issue.


author: HORGOS, J,

text:
    In re Amati

      Court of Judicial Discipline,
    no. 2 JD 01.
    BEFORE: PANELLA, P.J., BYER, RUSSO, SPOSATO, LEADBETTER, COGNETTI JR., HORGOS AND O’LEARY, JJ.

    April 24, 2001
   HORGOS, J,

The Judicial Conduct Board filed a petition for relief pursuant to C. J.D.R.P. no. 701 requesting an interim order directing the suspension without pay of District Justice Ronald Amati (respondent). Respondent filed an answer to the petition.

The following facts were alleged by the board and admitted by respondent:

(1) Respondent is the district justice serving magisterial district 27-1-02 in the County of Washington; Respondent has continuously served as district justice since January 4,1988. (Petition, ¶2; answer, ¶2.)

(2) Respondent was indicted on April 4, 2000 in the case of United States of America v. Ronald Amati, Debra Vlanich, no. 00 Crim. 59 in the United States District Court for the Western District of Pennsylvania and was charged with three felony counts: violating title 18 section 371 of the United States Code; violating title 18 sections 1955 and 2 of the United States Code; and violating title 18 sections 1511 and 2 of the United States Code. (Petition, ¶3; answer, ¶3.)

(3) Following a trial by jury before the Honorable Gustave Diamond, the jury returned a verdict of guilty as to all felony counts on February 5, 2001. (Petition, ¶¶8-10; answer, ¶¶8-10.)

(4) On April 23,1999 the Pennsylvania Supreme Court entered an order which relieved respondent of all judicial and administrative responsibilities until further order of the court. (Petition, ¶5; answer, ¶5.)

(5) Respondent has not performed his duties as a district justice since April 23, 1999 and has continued to receive Ml salary and benefits. (Petition, ¶6; answer, ¶6.)

The board has filed its petition pursuant to the Pennsylvania Constitution, Article V, Section 18(d)(2) which provides in relevant part that this court “may issue an interim order directing a suspension, with or without pay, of any... justice of the peace... against whom has been filed an indictment or information charging a felony.” The board alleges that to permit respondent to continue collecting his salary after he has been found guilty of felony violations of the United States Code would cause the public to lose faith in the integrity of the judiciary and the judicial disciplinary system and that the reputation of the judicial branch would be irreparably damaged. (Petition, ¶11.)

The court has the authority to enter an interim order suspending respondent without pay under the Pennsylvania Constitution, Article V, Section 18(d)(2), supra. The court is vested with discretion in this matter and decides this issue based on a totality of the circumstances test. In re Larsen, 655 A.2d 239 (Pa. Ct. Jud. Disc. 1994). The Larsen court set forth guidelines for determining when to enter an interim order of suspension:

“Among the factors to be considered are the nature of the crime charged, its relation, or lack thereof to the duties of the responding judicial officer, the impact or possible impact on the administration of justice in this Commonwealth, the harm or possible harm to the public confidence in the judiciary as well as any other circumstances relevant to the conduct in question....” Id., 655 A.2d at 247.

Respondent has been convicted by a jury of three felonies during his time in office, each punishable by a maximum of five years imprisonment. Post-trial motions filed by respondent were denied. Respondent has not performed his duties as district justice since April 23,1999 when the Pennsylvania Supreme Court relieved him of his duties. Respondent has continued to receive full salary and benefits.

This court must seek to maintain the integrity of the judiciary and the judicial disciplinary system. The judicial system should deserve and receive the support not only of litigants and lawyers but the public as well. In re Larsen, supra, 655 A.2d at 248, citing In re Greenberg, 442 Pa. 411, 280 A.2d 370 (1971).

Respondent has been charged with and convicted of conspiracy, gambling and obstruction of state law enforcement. The crimes involve dishonesty and took place while respondent served as district justice. To allow respondent to continue to receive full salary and benefits undermines public confidence in the integrity of the judiciary and the judicial disciplinary system.

Respondent points to a distinction between this case and In re Larsen because Justice Larsen committed illegal acts while serving on the highest court in the Commonwealth while respondent was serving in the position of district justice. This distinction is without merit. As a district justice, respondent is charged with the duty of administering justice to many individuals. In many cases, the only contact individuals will have with the judicial system is at the district justice level. The integrity of the judicial system must be upheld at all levels of that system. The importance of honesty by members of the judiciary is not diminished by the fact that a judicial officer sits as a district justice rather than a Pennsylvania Supreme Court Justice. The members of the public are more apt to come into contact with a district justice than a Pennsylvania Supreme Court Justice. All levels of a judicial system must operate in such a manner as to uphold respect for the law and administration of the judicial process in the courts of the Commonwealth.

Accordingly, under the authority vested in this court by the Pennsylvania Constitution, Article V, Section 18(d)(2), and based on the totality of the circumstances herein involved, the court finds that to allow respondent to continue to receive full benefits and salary as a district justice in the Commonwealth of Pennsylvania will undermine the integrity of the judiciary and the judicial disciplinary system and irreparably harm the reputation of the judiciary. An interim order shall be entered suspending respondent without pay.

Sposato, J., did not participate in the consideration or disposition of this case.

ORDER

And now, April 24, 2001, based upon the petition for relief filed by the Judicial Conduct Board in the above-captioned matter under C.J.D.R.P. no. 701, under the authority vested in this court by the Pennsylvania Constitution, Article V, Section 18(d)(2), the relief sought by the board is granted and respondent is hereby suspended from his judicial office without pay.


author: DOBSON, J.,

text:
    Shapona v. Gallagher

      C.P. of Mercer County,
    no. 1994-939.

      JohnE. Quinn, for plaintiff.

      Korry Alden Greene, for defendant.
    June 27, 2001
   DOBSON, J.,

The matter before this

court for disposition is defendant John P. Gallagher M.D.’s motion for summary judgment. For the reasons hereinafter set forth, Dr. Gallagher’s motion will be denied.

Pennsylvania Rule of Civil Procedure 1035.2 provides that 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 material fact as to a necessary 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 discovery 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 the iury.” Pa.R.C.P. 1035.2.

A court may grant a motion for summary judgment only where the right is clear and free from doubt. Marks v. Tasman, 527 Pa. 132, 134, 589 A.2d 205, 206 (1991). “The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Id. at 135, 589 A.2d at 206.

The non-moving party “must adduce sufficient evidence on [all] issue [s] essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996).

Viewed in the light most favorable to the non-moving party, the facts are summarized as follows. Plaintiff, Carrie L. Shapona, had been diagnosed to be suffering from total vaginal prolapse. On March 18,1992, Dr. Gallagher performed a surgery on Shapona to repair ligaments at the top of her vagina. Shapona claims that Dr. Gallagher never explained her condition to her, the details of the surgical procedure, or the risks, complications and alternatives involved with the surgical procedure prior to the surgery. Shapona allegedly suffered urinary incontinence and a loss of her vaginal depth following the surgery.

Shapona’s complaint alleges that Dr. Gallagher failed to obtain informed consent for the surgical procedure, and was otherwise negligent in the performance of the surgical procedure. On October 2,2000, a consent order of court was entered prohibiting Shapona from pursuing any cause of action against Dr. Gallagher sounding in negligence. The order of October 2, 2000 also required Shapona to provide an expert report on the issue of informed consent within 30 days of that date. Furthermore, the order provided that the failure to supply an expert report on the issue of informed consent would result in Shapona being precluded from presenting expert testimony at trial.

On November 13,2000, Dr. Gallagher filed a motion to preclude expert testimony for violation of the October 2,2000 order for failure to produce an expert report on the theory of informed consent. A hearing for this motion was scheduled for February 5,2001. On December 15, 2001, Shapona’s counsel forwarded to Dr. Gallagher’s counsel a letter from Andrew M. London M.D. in compliance with the order of October 2, 2000.

On February 5,2001, this court heard Dr. Gallagher’s motion to preclude expert testimony for violation of the order of October 2, 2000 and ordered that Shapona was limited to the report of Dr. London for the purposes of presenting expert testimony at trial. Dr. London’s report provides as follows:

“Dear Ms. Vollberg:
“Thank you for asking me to review the records of Carrie Shapona. I have reviewed all of the records that you sent me. The records of her surgery by Dr. Gallagher are the most important. I can find neither deviation from the standard of care nor any deviation from the surgical procedure.
“Ms. Shapona unfortunately had a complication from the procedure. This type of problem is a known complication of the type of surgery that she had and there was no evidence of negligence.
“I am sorry that she is unhappy with her outcome, but there is no evidence of any breach in medicine that I can find.
“Thank you and if I can be of any further service, please do not hesitate to contact me.
“Sincerely,
“Andrew M. London”

Dr. Gallagher filed this motion for summary judgment on the basis that Dr. London’s expert report is legally insufficient to set forth an opinion to support a claim for lack of informed consent.

Shapona, however, further avers that Dr. London’s report along with the general consent form that Shapona signed at the time of her surgery and her deposition testimony taken as a whole support a finding that there are genuine issues of material fact regarding the lack of informed consent.

“It is well-established in Pennsylvania that in informed consent cases, expert testimony is not necessaiy to establish the medical community’s standard of disclosure.” Festa v. Greenberg, 354 Pa. Super. 346, 355, 511 A.2d 1371, 1376 (1986). “Although expert medical testimony is not mandatory to set forth the scope of a physician’s duty to disclose material risks to a patient under the reasonable man standard,. . . such testimony is required to establish the existence of risks in a specific medical procedure, the existence ofalternative methods of treatment and the existence of risks attendant with such alternatives.” Id. at 356, 511 A.2d at 1376. (emphasis in original) Therefore, expert testimony is generally required in informed consent cases to establish the risks and alternatives presented by a proposed surgical procedure. Cosom v. Marcotte, 760 A.2d 886, 890 (Pa. Super. 2000).

Dr. Gallagher asserts that Shapona cannot sustain her prima facie burden of production because Dr. London’s letter fails in all respects to address the legally required standards set forth in the Festa case because Dr. London’s letter does not establish the existence of risks, the existence of alternative methods of treatment, and the existence of risks attendant with such alternatives. Festa, 354 Pa. Super. at 356, 511 A.2d at 1376. Furthermore, Dr. Gallagher asserts that Dr. London’s letter utterly fails to support Shapona’s theory of recovery or address any of the factors set forth m Festa, and since Shapona is bound by Dr. London’s letter she cannot meet her burden of proof at the time of trial.

Shapona asserts that Dr. London’s report meets the requirements set forth in the Festa decision in that Dr. London’s report provides “Ms. Shapona unfortunately had a complication from the procedure. This type of problem is a known complication of the type of surgery that she had and there was no evidence of negligence.” Shapona contends that the report meets the requirements for an expert report because it gives an opinion as to what the known complications of the surgery are. Furthermore, Shapona asserts that Dr. Gallagher never disclosed the risks, complications or alternative treatments to her, prior to her surgery and the general consent form that she signed did not contain any information concerning what procedures were going to be performed on her when she signed it. Therefore, Shapona contends, that the expert report along with the general consent forms and the testimony concerning the lack of informed consent are legally sufficient for her to meet her burden of proof as to the lack of informed consent.

Although Festa and the other cases cited by Dr. Gallagher provide that expert testimony is required to discuss the risks and alternatives, these cases do not discuss the extent to which the risks and alternatives need to be discussed. The question in this case is whether Dr. London’s report is legally sufficient to establish such requirements.

This court finds the cases of Jozsa v. Hottenstein M.D., 364 Pa. Super. 469, 528 A.2d 606 (1987), appeal denied, 518 Pa. 619, 541 A.2d 746 (1988), and Levy v. Jannetta, 423 Pa. Super. 384, 621 A.2d 585 (1992), appeal denied, 536 Pa. 627, 637 A.2d 287 (1993), to be dispositive.

In Jozsa, the plaintiffs brought an action against the defendant for performing surgery without having secured informed consent from his patient because the defendant did not advise the plaintiff of any risks or possible complications prior to performing carpal tunnel surgery. Jozsa, 364 Pa. Super. at 471, 528 A.2d at 607. The plaintiff, based upon the defendant’s explanation that the surgery could alleviate her neck pain, agreed to have the surgery. Id. at 472, 528 A.2d at 607. Following the surgery, the plaintiff experienced extensive postoperative complications including scar tissue formation of the median nerve, which ultimately necessitated corrective surgery. The defendant admitted that the scar tissue formation was a complication and the plaintiff’s subsequent treating physician testified that the percentage of recurrence for carpal tunnel was 4-5 percent. Id.

While citing the portion of the decision in Festa, requiring in informed consent cases “medical testimony is ‘necessary to establish the existence, magnitude and other relevant scientific characteristics of the risks of a recommended medical procedure and viable alternatives,’ ” id. at 473, 528 A.2d at 607, the Jozsa court held: “[t]he law is very clear that once expert medical testimony establishes that there was a risk of any nature to the patient that he or she was not informed of, and after surgery the patient suffers from that undisclosed risk, it is for the jury to decide whether the omission was material to an informed consent.” Id. at 474, 528 A.2d at 608.

The Jozsa court distinguished its decision from the ■ holding in Festa in the following manner:

“Festa holds that expert testimony is mandatory to establish existence of risks, existence of alternative methods of treatment and existence of risks attendant with such alternatives. It does not hold that expert testimony must establish all of the above before the question of whether there was an informed consent can go to the jury. We emphasize that once expert testimony establishes the existence of an undisclosed risk of a recommended medical procedure (or of any of the above-mentioned factors) it is the role of the jury to decide whether that type of harm if it occurs, is a risk which a reasonable patient would consider in deciding on whether to undergo or reject the procedure.
“Therefore, since the record in this case supports the appellants’ [plaintiffs’] position that the appellee-doctor [defendant] did not inform them of the medically attested to recurrence rate of 4-5 percent, which was a known risk, the appellants’ [plaintiffs’] case should have been permitted to go to the jury. The trier of fact has to be the arbiter of what constitutes a material risk for the patient.” Jozsa, 364 Pa. Super. at 474, 528 A.2d at 608.

In Levy, the plaintiff sought a medical evaluation from the defendant-doctor because the plaintiff suffered from a condition known as trigeminal neuralgia which results in the experiencing of severe pain in one or more facial areas associated with the fifth cranial nerve. Levy, 423 Pa. Super. 384, 386, 621 A.2d 585, 586 (1992). The defendant performed a craniotomy and microvascular decompression of the fifth cranial nerve surgery on the plaintiff, but the plaintiff experienced no relief from the facial pain following the surgery and furthermore experienced facial paralysis subsequent to the surgery. Id. The plaintiff filed suit against the defendant on the theory of a lack of informed consent.

During the trial, the plaintiff did not produce any expert witness retained by herself, but rather called the defendant in an apparent effort to establish the expert witness aspects of her case. Id. The plaintiff questioned the defendant if he told the plaintiff of the risk of suffering facial paralysis as a result of the surgery, and the defendant testified that he did not because at the time the surgery was performed he did not regard facial paralysis as a risk of the surgery the plaintiff underwent. Id. at 387, 621 A.2d at 586. In response to the defendant’s answers, the plaintiff produced a copy of the defendant’s deposition testimony where the defendant testified that facial paralysis was a possible complication and risk of the surgery. Id.

The defendant moved for a nonsuit arguing that the plaintiff had failed to make a prima facie case since she had produced no expert testimony to establish that facial paralysis was a known risk of the surgery performed. Id. The Levy trial court granted the defendant’s motion for nonsuit, however, the Superior Court reversed the trial court’s decision. The Levy court cited with approval the language in Festa that “[i]t is beyond dispute that medical expert testimony is necessary in an informed consent action to establish that the condition suffered was a known risk of a medical procedure at the time the procedure was performed.” Id. at 388, 621 A.2d at 587. The Levy court, however, also found the Jozsa court’s interpretation of Festa to be controlling. It stated:

“Festa holds that expert testimony is mandatory to establish existence of risks, existence of alternative methods of treatment and existence of risks attendant with such alternatives. It does not hold that expert testimony must establish all of the above before the question of whether there was an informed consent can go to the jury.” Levy, 423 Pa. Super. at 389, 621 A.2d at 587. (emphasis in original)

Applying the holding in Jozsa, the Levy court found “that the defendant’s identification of facial paralysis as a possible major and common complication would satisfy the expert testimony requirement to the extent the deposition statement can be considered competent evidence in appellant’s [plaintiff’s] trial.” Id.

It is clear the holdings in Festa and Jozsa are in conflict. While Jozsa professes to be in accord with Festa, it is not. Since the Superior Court decisions in Jozsa and Levy are the most recent decisions entered by the Superior Court ruling on the extent of the expert testimony that is required to sustain the prima facie case, this court finds those decisions to be dispositive and controlling. It is up to the Superior Court to resolve this conflict.

In this case, Dr. London’s report provides “Ms. Shapona unfortunately had a complication from the procedure. This type of complication is a known complication of the type of surgery that she had and there was no evidence of negligence.” Hence, Dr. London’s report is sufficient to allow the case to go to the jury.

The question of whether Dr. Gallagher disclosed these risks with Shapona prior to the surgery and if such risks were of a nature that a reasonable person would consider them to be material are questions for the trier of fact. Consequently, Dr. Gallagher’s motion for summary judgment must be denied.

Hence, this order:

ORDER

And now, June 27, 2001, it is hereby ordered that defendant John P. Gallagher M.D.’s motion for summary judgment is denied.

      . This court does note the decision of Pavoni v. Magee, 29 Phila. 41 (1994). In that case, the Court of Common Pleas of Philadelphia County held “In order to establish a prima facie showing of informed consent the plaintiffs must further demonstrate the rate or probability of that type of harm occurring. It is with this information that a trier of fact can decide whether the risk is ‘material’ to an informed consent.” The Pavoni court held that the plaintiff failed to carry the prima facie burden to set forth the magnitude and rate of the risks to the bladder during a hysterectomy procedure when the doctor testified that the percentage of probability of injury to the bladder was low and such injuries occurred in a small number of cases. The Pavoni court held “[wjhile Levy v. Janetta suggests that something less than ‘solid and comprehensive expert testimony’ is adequate to make a prima facie case, it is difficult to believe that Dr. Magee’s [defendant’s] testimony that the risk is ‘low,’ is sufficient to allow this case to go to the jury.” The Superior Court affirmed the trial court decision in Pavoni; Pavoni v. Magee, 446 Pa. Super. 690, 667 A.2d 430 (1995); however, it did so without publishing an opinion. Therefore, the Superior Court’s decision in the Pavoni case cannot be considered as precedent.