source: Caselaw Access Project

author: AMMERMAN, P.J,

license: Public Domain

text:
    Berry v. Fitz

      C.P. of Clearfield County,
    no. 04-1607-CD.
    February 22, 2006

      William S. Schweers Jr, for plaintiffs.

      John W Blasko, for defendants.
   AMMERMAN, P.J,

On October 14, 2004, the plaintiff, Littie K. Berry, and her husband filed an action in medical malpractice against the defendants. Contained within the complaint were allegations that the principal place of business of the defendants was located in Clearfield County. An answer and new matter to the complaint were filed by the defendants on November 16, 2004, and following the close of the pleadings, the parties proceeded with discovery. On December 22,2005, the plaintiffs filed a petition for change of venue, requesting that the case be transferred to the Court of Common Pleas of Allegheny County. The petition set forth that the plaintiffs had learned through the discovery process that the defendants maintained their principal office in Allegheny County and that the alleged acts of malpractice also occurred in the defendants’ Allegheny County office. The court signed an order dated December 23, 2005 granting the request and directing the prothonotary to forward the case to Allegheny County.

On January 6,2006, the defendants filed a petition for reconsideration of the court’s order of December 23, 2005. Argument thereon was scheduled for February 6, 2006. At that time, as the record will reflect, the court surmised that the order transferring venue had become a final order upon the expiration of the 30-day period to file an appeal to the Superior Court. Later that day, prior to this court finalizing any order on the petition for reconsideration, the defendants appealed to the Superior Court. The defendants’ concise statement sets forth the following two issues:

(1) Whether the court erred in granting the petition for change of venue without providing the defendants an opportunity to respond.

(2) Whether the court erred in transferring the case to Allegheny County when some of the facts of the medical malpractice occurred in Clearfield County, and the defendants did not invoke their exclusive right under Pa.R.C.P. 1006(e) to raise an objection to plaintiffs’ selection of venue.

Before dealing with the issues set forth in the concise statement, the court will review the timeliness of the appeal. Although the court’s order was dated December 23, 2005, it was not filed by the prothonotary until December 30, 2005. From examining the record it appears that the prothonotary did not comply with Pa.R.C.P. 236(a)(2) in that service of the order was not made directly upon counsel for the defendants. The docket indicates that on December 30, 2005, the prothonotary sent two certified copies to counsel for the plaintiffs. Therefore, the 30-day period to file an appeal did not begin to run on this date. See Pa.R.A.P. 108(b). Defendants filed their motion for reconsideration on January 6, 2006, so obviously the defense was in receipt of the order at least by that time. Paragraph three of the petition for reconsideration indicates that defense counsel received the order on January 5, 2006. It matters not which date is used for the calculation of the 30-day period to file an appeal, as the first available business day 30 days from either date is February 6, 2006, the day the appeal was filed. Therefore, this court believes that the appeal was timely filed.

Moving to the issues raised by the defense, this court does not believe it was required to permit the defendants to respond prior to the court issuing an order changing the venue. However, argument on the defendants’ petition for reconsideration was scheduled and the court did permit argument at that time.

A review of the depositions of Dr. Fitz, November 22, 2005, page 21 and the defendants’ medical secretary, Darlene A. Lange, pages 9-11, shows Clearfield County’s connection with the alleged acts of malpractice is nominal at best. The defendants’ principal office is located in Allegheny County, with there being various branch clinics. Dr. Fitz had seen Mrs. Berry only at the defendants’ clinic located in Slippery Rock, Butler County. Thereafter, following medical direction, Mrs. Berry had contacted the defendants’ office located in Allegheny County and inquired about preparations for her surgery. A question was asked about Mrs. Berry going off Coumadin. Ms. Lange then telephoned Dr. Fitz at the defendants’ clinic located in Clearfield County. She explained that the patient was going off of her Coumadin and Dr. Fitz indicated that was fine. Mrs. Berry suffered a stroke a few days later.

Rule of Civil Procedure 1006 provides the process to be used when a party wishes a change of venue. This court believes that the transfer is authorized by either section 1006(a.l) or 1006(d)(1). Rule 1006 (d)(1) reads as follows:

“For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.”

This section of the rule clearly permits either party to petition the court for a transfer of venue. The defendants’ argument that a challenge to venue can only be made by the filing of preliminary objections under 1006(e) is clearly without merit. This particular subsection relates only to a defendant challenging the plaintiff’s initial choice of venue and is not relevant to the right of either party to request a change of venue under section(d)(l) or (a.l).

The proper venue for a medical malpractice action is the county in which the cause of action arose. Pennsylvania courts have defined that to mean the negligent act or omission, as opposed to the injury which flows from the tortious conduct. Peters v. Sidorov, 855 A.2d 894 (Pa. Super. 2004). The plaintiff’s choice of the appropriate forum for the case is given great weight, and a defendant bears the burden of proof in asserting a challenge to the plaintiff’s choice of venue. Moreover, the trial court is vested with discretion in determining whether to grant a petition to transfer venue, and will not be overturned absent an abuse of that discretion. If there exists any proper basis for the trial court’s decision to grant the petition to transfer venue, the decision must stand. Masel v. Glassman, 456 Pa. Super. 41, 689 A.2d 314 (1997).

The case of Bilotti-Kerrick v. St. Luke’s Hospital, 873 A.2d 728 (Pa. Super. 2005), is almost directly on point in regard to the venue issue before the court. In Bilotti-Kerrick, the suit was filed in Northampton County notwithstanding the fact that St. Luke’s Hospital is located in Lehigh County and the decedent had been provided with medical care at St. Luke’s. The only connection with Northampton County was the fact that Dr. Puleo had his residence there. He took a phone call at his residence from a hospital employee and provided directions relative to the decedent’s care. In affirming the transfer of the action to Lehigh County, the Superior Court indicated that “Dr. Puleo’s negligent conduct would be his failure to treat the decedent as he indicated he would. Even though he gave medical orders over the phone from his home in Northampton County, the orders were carried out in Lehigh County.” 873 A.2d at 731. This is similar to the case at bar where the employee of West Penn Cardiology would have told Mrs. Berry that it was okay to go off of the Coumadin based upon the telephone call made to Dr. Fitz at his office in Clearfield County. Accordingly, the acts of alleged malpractice occurred in Allegheny County and the decision by this court to transfer venue to Allegheny County was correct.

      . The plaintiffs reside in Lawrence County, Pa.


author: PEREZOUS, J,

text:
    Stoltzfoos v. Bart Township Zoning Hearing Board
    C.P. of Lancaster County,
    no. CI-2005-05746.

      Stephen Zook Stolzfoos, pro se.

      Melvin E. Newcomer, for Bart Township Zoning Hearing Board.

      March 1, 2006
   PEREZOUS, J,

Presently before the court is appellant Stephen Zook Stoltzfoos’ appeal from the decision of the Bart Township Zoning Hearing Board. The board denied appellant’s request for a special exception to operate a kennel on his property, along with variances seeking to reduce the minimum lot size and minimum setback requirements. For the following reasons, this court affirms the decision of the board and dismisses the appeal.

Appellant owns a tract of land containing approximately 3.03 acres located at 881 Mount Pleasant Road in Quarryville, Pennsylvania. This property is located in the Agricultural (A) Zoning District in the Township. On or about March 28, 2005, appellant filed a zoning application with the township seeking a special exception to operate a kennel on his property. Under the Township’s Zoning Ordinance, a kennel is an intensive agricultural production facility, subject to section 718.4 of the ordinance, and is a permitted special exception use under section 500.6. In addition to the special exception request, appellant sought to obtain variances from section 500.8.C.b of the ordinance to reduce the required minimum lot size of 10 acres for a kennel to 3.03 acres, and from section 718.4 to reduce the required setbacks.

A public hearing was held on the matter on June 2, 2005. Appellant acknowledged that kennel operations began in July of 2003. The location of the building in which the kennel is located was also discussed. It is approximately 135 feet from the western boundary of the property line; 200 feet from the eastern boundary; 150 feet from the southern boundary; and 100 feet from the northern boundary. Appellant also indicated that he wanted the kennel so that he could work with the family. At the conclusion of the hearing, the board denied the requests for a special exception and variances.

Upon notification of the board’s decision, appellant filed a timely appeal. Nevertheless, he neither certified that a transcript of the hearing had been ordered nor provided a copy of the transcript to the board. Consequently, the board filed a certification of record on August 31, 2005, indicating that it had not received the transcript. Subsequently, appellant filed a petition for a hearing, which was dismissed by an order entered on September 15, 2005. The order also provided that the case was to proceed pursuant to Local Rule No. 27.

On November 29,2005, the board filed a petition seeking to dismiss the appeal. The board asserted that it was entitled to dismissal of the action pursuant to Local Rule No. 27.A.3 based upon appellant’s failure to provide a copy of the transcript, and Local Rule No. 27.D.4 based upon appellant’s failure to file a brief within the 40-day period mandated by the rule. After this petition was filed, appellant filed a brief on December 15,2005, and filed a certification of transcript and the transcript itself on January 13, 2006. The board filed its brief in opposition to the appeal on or about February 17, 2006.

Without discussing whether appellant’s failure to comply with the local rules supports dismissal of the appeal, this court finds that dismissal of the appeal is proper because the board neither abused its discretion nor committed an error of law in denying his zoning application. Since this court has not taken additional evidence in this zoning appeal, our scope of review of the board’s decision is limited to whether it abused its discretion or committed an error of law. Rapaport v. Zoning Hearing Board of the City of Allentown, 687 A.2d 29, 31 n.3 (Pa. Commw. 1996). “A zoning hearing board abuses its discretion only if its findings are not supported by substantial evidence.” Appeal of Neill, 160 Pa. Commw. 169, 174 n.3, 634 A.2d 749, 751 n.3 (1993). Substantial evidence has been defined as “relevant evidence [that] a reasonable mind might accept as adequate to support a conclusion.” Hudachek v. Zoning Hearing Board of Newtown Borough, 147 Pa. Commw. 566, 570 n.2, 608 A.2d 652, 654 n.2 (1992). If the record demonstrates substantial evidence, a court is bound by the board’s findings and may not substitute its judgment for that of the board. Zoning Hearing Board of Sadsbury Township v. Board of Supervisors of Sadsbury Township, 804 A.2d 1274, 1278 (Pa. Commw. 2002).

First, special exceptions must be granted or denied in accordance with the express standards and criteria set forth in the ordinance. See 53 P.S. §10912.1. As courts have stated, “/t]he rules that determine the grant or refusal of the exception are enumerated in the ordinance. ” E.g., Broussard v. Zoning Board of Adjustment of the City of Pittsburgh, 831 A.2d 764, 769 (Pa. Commw. 2003). Under the Township’s ordinance, a kennel is a permitted special exception. Bart Township Zoning Ordinance §500.6.J. Here, however, appellant fails to satisfy express standards set forth in the ordinance. In order to operate a kennel, a minimum lot area of 10 acres is required. Bart Township Zoning Ordinance §500.8.C.b. Appellant fails to meet this requirement because the size of his lot is 3.03 acres. He also fails to satisfy the minimum setback requirements. The facility must be set back at least 150 feet from any street right-of-way line, or 300 feet from any property line. Bart Township Zoning Ordinance §718.4.A. Based upon appellant’s testimony, his kennel operation fails to meet these setback requirements. Consequently, appellant is not in compliance with the standards enumerated in the ordinance, and the board did not err in denying his request for a special exception.

Finally, in order to sustain the grant of a variance, the party seeking the variance must prove that unnecessary hardship will result if the variance is denied and that the proposed use will not be contrary to the public interest. Valley View Civic Association v. Zoning Hearing Board of Adjustment, 501 Pa. 550, 555-56, 462 A.2d 637, 640 (1983). The reasons for granting a variance, moreover, must be “substantial, serious and compelling.” Id. Here, appellant offered no justification for the requested variances. He merely stated that he wished to operate the kennel so that he could work with his family. This reason does not justify the requested variances. Also, appellant used his property in conformance with the zoning requirements prior to beginning his kennel operation in 2003. As the board points out, it is difficult to imagine how appellant is now entitled to use his property in a way that conflicts with the ordinance when he previously used it in a conforming fashion. As such, the board did not err in denying appellant’s variance requests.

Accordingly, the court enters the following:

ORDER

And now, March 1, 2006, upon consideration of the appeal filed by Stephen Zook Stoltzfoos, together with the briefs and supporting papers filed by the parties, it is hereby ordered the decision of the Bart Township Zoning Hearing Board is affirmed, and the appeal is dismissed.


author: DiBONA JR., J.,

text:
    Urbach v. Flintkote Company
    C.P. of Philadelphia County,
    August Term 2003,
    no. 2638.
    December 15, 2005

      Steven B. Barrett, for plaintiffs.

      William A. Jones, Christopher N. Santoro, G. Daniel Bruch Jr,, Mark A. Lockett, Bashi Buba, Robert C. Anderson, William D. Shultz, John J. Kurowski, Wilson M. Brown III, Michael R Daly and David S. Abernethy, for defendants.
   DiBONA JR., J.,

The plaintiff brought this action against the defendants for alleged injuries sustained by the plaintiff from his use of and exposure to defendants’ asbestos products. This court, sitting with a jury, conducted a trial from February 7, 2005 through February 18, 2005. The jury found in favor of the plaintiff, James Urbach, and against the defendants, Kentile Floors Inc. and American Biltrite Inc. (Amtico), jointly and severally, in the amount of $5,000,000. The plaintiff’s offer of remittitur to $1,750,000 was accepted by this court in its grant of judgment. The jury also found in favor of defendant Azrock Industries Inc. This case was reverse bifurcated. Kentile and Amtico have filed timely separate appeals with the Superior Court. This opinion will address both appeals.

In response to this court’s order pursuant to Pa.R.A.P. 1925(b) dated August 30, 2005, each of the defendants has filed a statement of matters complained of on appeal. However, neither of the defendants has filed a concise statement as Pa.R.A.P. 1925(b) requires. Therefore, this court will set forth the issues essentially raised in each of the statements.

ISSUES PRESENTED

(1) Whether the statute of limitations had run on the plaintiff’s asbestos-related injuries before he filed suit against the defendants.

(2) Whether the plaintiff produced sufficient evidence at trial to establish that he was injured and suffered disability from exposure to defendants’ asbestos products to withstand defendants’ motions for judgment non obstante veredicto or judgment notwithstanding the verdict (judgment n.o.v.).

(3) Whether defendants are entitled to a new trial on damages because the jury’s verdict, even with the remittitur, was manifestly excessive and contrary to the weight of the evidence.

(4) Whether plaintiff’s counsel’s questions and comments during the course of the trial were so prejudicial to defendants as to require the grant of a new trial.

(5) Whether there was any rational basis for the jury to find that plaintiff was injured by defendants ’ asbestos products but not by defendant Azrock’s asbestos products.

(6) Whether this court erred by ordering this trial to be conducted in reverse bifurcation fashion.

(7) Whether this court erred by consolidating this case with another asbestos case.

(8) Whether this court erred in refusing to instruct the jury on a determination of several rather than joint liability pursuant to the Fair Share Act, 42 Pa.C.S. §7102, since the Fair Share Act applies to actions that accrue on or after August 18, 2002, and the jury should have been permitted to determine whether plaintiff was injured after the effective date of the Fair Share Act.

DISCUSSION

Statute of Limitations

Defendants claim that plaintiff was aware of his “asbestos-related condition” as far back as July 18, 2000. Therefore, defendants assert that plaintiff filed his complaint after the two-year statute of limitations expired on this personal injury suit. However, throughout the trial and even to date, the defendants do not admit that the plaintiff suffers from asbestosis. Furthermore, the defendants deny that plaintiff suffers “any disability, impairment or discernible symptoms from his asbestos-related condition.” If the defendants had admitted that the plaintiff suffers from asbestosis, this court could have instructed the jury to determine when the plaintiff contracted the disease and thus whether this action was brought within the statute of limitations. However, it is difficult to follow defendants’ argument that plaintiff filed this action too long after he contracted the disease when the defendants do not admit he has asbestosis. Neither defendant produced an expert at trial to provide an opinion as to when plaintiff had discernible physical symptoms or functional impairment causally related to his pulmonary asbestosis.

The key event in the progression of plaintiff’s asbestosis was the coronary artery bypass heart surgery that plaintiff had in the summer of2002 after which his physical limitations and overall health markedly changed. He required the use of oxygen on a daily basis, could not walk from one room to another in his house, needed a wheel chair in order to ambulate, could not bathe or dress himself independently without losing his breath, could no longer drive a car and needed assistance walking up one flight of stairs in his home. The evidence clearly establishes that the plaintiff did not suffer from a compensable injury until after August 15,2001. Accordingly, plaintiff filed this action timely.

Sufficiency of Evidence To Prove Asbestosis

This court enumerated above the symptoms which have manifested themselves in plaintiff that, in the eyes of the jury, made plaintiff’s asbestosis not asymptomatic but symptomatic because these symptoms produced a decided change in plaintiff’s daily lifestyle.

In the case of Cauthorn v. Owens-Corning Fiberglas Corp., 840 A.2d 1028 (Pa. Super. 2004), the Superior Court tackled the thorny issue in asbestos injury cases as to whether the symptoms the plaintiff complains of are related to his exposure to asbestos or to one of the other maladies from which the plaintiff suffers, or, phrased another way, whether plaintiff suffers from a compensable asbestos-related disease. The Superior Court said at pages 1035-39:

“What constitutes a compensable asbestos-related injury?

“Appellant argues that plaintiff failed to prove that he suffered from a symptomatic asbestos-related disease. If appellant is correct in this assertion, it would be entitled to the judgment n.o.v. it seeks. This is because in the Commonwealth, it is no longer possible for a plaintiff to recover for ‘asymptomatic asbestos-related injuries.’ Giffear v. Johns-Manville Corp., 429 Pa. Super. 327, 632 A.2d 880 (1993).

“A plaintiff’s asbestos-related injuries are ‘asymptomatic’ when it can be objectively demonstrated that plaintiff has been injured by asbestos exposure, but the injuries are unaccompanied by ‘discernible physical symptoms or functional impairment.’ Id. at [337, 632 A.2d at] 885. Thus, even though the plaintiff has shown by an x-ray photograph that he is suffering from asbestosis, he will be unable to recover for this injury unless his asbestosis manifests itself in some outward form. When the plaintiff is ‘able to lead [an] active, normal [life], with no pain or suffering, no loss of organ function, and no disfigurement due to scarring,’ that plaintiff may not recover for his asbestos-related injuries as a matter of law. Id. at [335, 632 A.2d at] 884.

“If the plaintiff can prove that his asbestos-related disease has led to ‘discernible physical symptoms or functional impairment,’ plaintiff has proven that his asbestos-related disease is ‘symptomatic’ and thus compensable under Giffear. What constitutes a ‘discernible physical symptom or functional impairment’ has, however, been debated in the Superior Court.

“Some of the cases decided after Giffear have held that an asbestos-related disease which is only accompanied by shortness of breath is still an asymptomatic disease. In Taylor v. Owens-Corning Fiberglas Corp., the Superior Court declared: ‘it is common knowledge that breathlessness is also associated with any number of non-asbestos-related ailments including lung cancer, excessive cigarette smoking, heart disease, obesity, asthma, emphysema and allergic reactions.’ 446 Pa. Super. 174, 187 n.2, 666 A.2d 681, 687 n.2 (1995). Taylor would require something more than shortness of breath before the plaintiff could establish that his asbestos-related injuries were symptomatic.

“In White v. Owens-Corning Fiberglas Corp., the court elaborated on what ‘more’ is required before the plaintiff can establish a compensable asbestos-related injury. 447 Pa. Super. 5, 668 A.2d 136 (1995). In this case, the plaintiff was diagnosed with asbestos-related pulmonary diseases. The White court reiterated its statement that asbestos-related injuries which are only outwardly manifested in shortness of breath do not constitute a compensable injury under Giffear. Mr. White, however, also testified that he ‘had severe difficulties breathing after walking more than half a block, climbing a flight of stairs, driving a nail, or washing the dishes.’ This testimony, the court found, demonstrated that Mr. White has ‘discernible physical symptoms, a functional impairment or disability’ under Giffear. White [at 25,] 668 A.2d at 146.

“Thus, it was the testimony showing plaintiff’s shortness of breath hampered his daily activities (along with evidence demonstrating a causal connection between his shortness of breath, asbestos exposure, and asbestos-related lung injuries) which enabled plaintiff to satisfy his burden of production and established a prima facie case of symptomatic (and therefore compensable) asbestos-related injuries.

“Another line of Superior Court cases has found symptomatic asbestos-related injuries when plaintiff establishes: (1) an asbestos-related condition, (2) shortness of breath, and (3) a causal connection between the two. McCauley v. Owens-Corning Fiberglas Corp. is one such case. 715 A.2d 1125 (Pa. Super. 1998).

“It could be argued that since McCauley applied preGiffear law, thus allowing a plaintiff to recover for asymptomatic asbestos-related injuries, it is of no account to our current case. Id. at 1128. This assertion would be incorrect, however, since the McCauley court found that the statute of limitations had run on Mr. McCauley’s asymptomatic pleural thickening claim. Thus, the court was forced to determine whether his asbestos-related injuries had turned symptomatic. If the injuries had become symptomatic, the court declared Mr. McCauley would be sufferingfrom a ‘separate and distinct disease ’ and would be able to bring suit on these new symptomatic injuries. Id. at 1129. Therefore, McCauley does inform our determination of when a plaintiff’s injuries become symptomatic.

“The McCauley court was aware of Taylor and cited it for the proposition that shortness of breath alone ‘is not considered a compensable injury.’ Id. at 1131. The court then went on to say that ‘in addition to suffering shortness of breath [Mr. McCauley] also suffered from asbestosis and other asbestos-related conditions (i.e., pleural plaques).’ Id. The Taylor/White court, however, would have required at least one more factor: that plaintiff’s shortness of breath somehow affects his lifestyle. But the McCauley court did not require this further condition: it just required a causal connection between a plaintiff’s shortness of breath and his asbestos-related diseases. Further, in McCauley there is no talk of any other non-asbestos-related ailments that would have affected his breathing, such as found in Taylor and White.

“The McCauley reasoning was followed in Ryan v. Asbestos Corporation Ltd., 829 A.2d 686 (Pa. Super. 2003). Ryan found that Taylor merely stood for the fact that ‘shortness of breath, without any evidence that the shortness was caused by asbestosis, is not a compensable injury.’ Id. at 689. The Ryan court then declared: ‘where the symptom of shortness of breath is causally related to a diagnosis of asbestos, a compensable injury does in fact exist.’ Id.

“Under either of the above approaches, Mr. Cauthorn has established that his asbestos-related injuries are symptomatic. When viewing the evidence in the light most favorable to Mr. Cauthorn, it demonstrates that he is suffering from asbestosis and pleural thickening — his expert testified as to this. Second, his expert testified that these injuries were proximately caused by Mr. Cauthom’s inhalation of asbestos. Third, Mr. Cauthorn testified that he suffers from shortness of breath. Fourth, Mr. Cauthom’s expert testified that, while Mr. Cauthorn suffers from a myriad of other health problems, Mr. Cauthorn’s shortness of breath is due in part to his inhalation of asbestos and his asbestos-related injuries. Finally, and unlike the plaintiff in Taylor, Mr. Cauthorn testified that his shortness of breath harms his daily lifestyle. Specifically, Mr. Cauthorn testified that because of his shortness of breath he cannot walk more than a half a block and must drive everywhere he wishes to go. Thus, even under the Taylor/White analysis, Mr. Cauthorn has suffered a compensable injury from asbestos inhalation.

“. . . In Mr. Cauthom’s case ... the jury specifically found that Mr. Cauthorn was injured by inhalation of asbestos. Our adversarial system allowed both sides to present their cases and attempt to sway the jury: Mr. Cauthorn presented evidence that he was injured by asbestos and John Crane presented evidence that Mr. Cauthorn was injured, not by inhalation of asbestos, but rather by his cigarette smoking and other related ailments. The jury heard all of this and found that Mr. Cauthorn was indeed injured by asbestos exposure and awarded him damages... John Crane’s motion for judgment n.o.v. was properly denied.

“Issue 3: Whether John Crane is entitled to judgment n.o.v. because no reasonable jury could find on the evidence presented in this case that its products were defective or caused any injury to plaintiff?

“Appellant presents two separate questions here. First it alleges that, even if Mr. Cauthorn was exposed to its product, Mr. Cauthorn did not prove that its product was defective and thus cannot recover. Second, it argues that Mr. Cauthorn never proved that he was exposed to its products at all. We will separate these issues in our discussion.

“(A) Whether appellant is entitled to judgment n.o.v. because plaintiff failed to prove its products were defective.

“We agree with appellant that in an asbestos case where the plaintiff follows the ‘design defect’ avenue of strict liability, the plaintiff must prove that the asbestos-containing product was defective. Mr. Cauthorn, however, did prove that John Crane’s asbestos rope was defective.

“Appellant’s argument here is based primarily on the testimony of its industrial hygienist expert. Its asbestos rope was not defective, John Crane argues, because the expert testified that the rope emitted levels of respirable asbestos ‘so low it’s difficult to measure. So it would be less than the limited detection.’

“Our court was confronted with this argument in Lonasco v. A-Best Products Co., 757 A.2d 367 (Pa. Super. 2000). Following the reasoning of Lonasco, appellant’s claim must fail.

“Here, as in Lonasco, the plaintiff’s medical expert testified as to the effect each fiber of asbestos causes in the human body. In the current case, Mr. Cauthorn’s medical expert testified to a ‘reasonable degree of medical certainty’ that ‘each breath of air that contained asbestos fibers substantially contributed to the development of [Mr. Cauthorn’s] diseases.’ Further, he testified: ‘because any asbestos fiber will cause some degree of injury ... each fiber will have some small effect and it’s the cumulative effect of all the different fibers.’

“As in Lonasco, Mr. Cauthorn testified that when he cut John Crane asbestos rope, white dust would become airborne from the product. This dust, Mr. Cauthorn declared, he would breathe in. At the end of the day, Mr. Cauthorn stated that he would be covered in white dust. Further, when this white dust was being blown off of him, Mr. Cauthorn testified that the dust would recirculate causing him to breathe in even more dust.

“As to the testimony of John Crane’s industrial hygienist concerning the levels of asbestos emitted from the rope, ‘a jury can believe any part of a witness ’ testimony that they choose, and may disregard any portion of the testimony that they disbelieve. ’ Martin v. Evans, 551 Pa. 496, 505, 711 A.2d 458, 463 (1998).

“Based on this evidence and following the reasoning of Lonasco, we cannot say that John Crane is entitled to judgment n.o.v. on the basis that Mr. Cauthorn did not prove its product was defective. The trial judge thus ruled correctly in denying this motion.” (emphasis supplied)

Plaintiff testified at trial that he was exposed to the defendants’ asbestos floor tile products and asbestos dust created by cutting, sweeping and tearing up defendants’ asbestos floor tile. Plaintiff testified that he broke up old asbestos floor tile and laid new asbestos floor tile and swept up asbestos dust in working with defendants’ asbestos products. As a result, he breathed in the asbestos dust. This court finds that plaintiff proved by a preponderance of the evidence that he has a compensable asbestos-related disease.

Remittitur or New Trial on Damages

This court does not believe that the jury’s verdict was excessive or contrary to the weight of the evidence so as to have caused this court to overturn the jury’s verdict. In the case of Taylor v. Celotex Corp., 393 Pa. Super. 566, 574 A.2d 1084 (1990), the Superior Court held at pages 593-94, 574 A.2d at page 1098:

“Appellants also assert that the jury’s award of damages to the plaintiffs was excessive and that, therefore, the trial court erred by refusing to order a remittitur. When faced with a claim that the jury’s award of damages was excessive, we must be ‘ever-mindful that our standard of review is extremely narrow.’...

“The determination of damages lies initially within the discretion of the jury, which weighs the evidence and assesses the credibility of the witnesses... The decision to grant or to deny a new trial on the ground of excessiveness lies, in turn, within the discretion of the trial court. We will not disturb the decision absent a clear abuse of that discretion ... A verdict will stand unless its ex-cessiveness shocks our sense of justice.

“Moreover, [t]he trial court has the authority to order a remittitur of excessive damages ... However, the trial court should not interfere with functions of the jury and undertake to determine facts, which is exclusively the province of the jury. When it is apparent that the jury has returned a verdict excessive in amount and clearly beyond what the evidence warrants, the trial court should set aside or reduce the verdict... Conversely, if the verdict is supported by evidence, it must be permitted to stand where there is nothing to suggest that the jury was in any way guided by partiality, prejudice, mistake or corruption... Therefore, it is the duty of the court to enforce the jury’s verdict unless the circumstances cry out for judicial interference.” (citations omitted)

See also, the case of Andaloro v. Armstrong World Industries Inc., 799 A.2d 71 (Pa. Super. 2002), where the Superior Court said at pages 88-89:

“Finally, in its third question on appeal, Crane asserts that the trial court erred in refusing to grant remittitur on the verdict in the Greenhalgh and Swan cases ... Again we conclude that this contention is of no merit and has been adequately addressed in the opinion of the trial court. The court stated the following rationale:

“Under prevailing case law authority, the court may only grant a remittitur when an award is so excessive that it shocks our sense of justice. See Taylor v. Celotex Corp., 393 Pa. Super. 566, 574 A.2d 1084, 1098 (1990). To prevail on a petition for remittitur, it is incumbent upon the aggrieved party to establish that the verdict resulted from partiality, prejudice, mistake or corruption.

“James Greenhalgh suffersfrom pleural thickening and pulmonary asbestosis with lung scarring that has continued to deteriorate with the passage of time. Even the mildest exertion renders Mr. Greenhalgh short of breath, curtailing his activities with family and even the simple pursuit of gardening. Given the continued deterioration of Greenhalgh’s condition and the manner in which it limits his enjoyment of life, the trial court did not err in refusing to grant remittitur of Greenhalgh’s $800,000 award.

“Similarly, Ralph Swan suffers from asbestosis and severe restrictive lung disease. Due to shortness of breath, he encounters difficulty even in tossing a ball with his grandchildren, and must stop to rest after walking only about one block. He lives in fear that his condition will deteriorate and result in his death. In view of the difficulty Mr. Swan sustains in daily living, we find no error in the trial court’s refusal to grant remittitur of his $750,000 award. Accordingly, we find no merit in John Crane’s request for relief.” (emphasis supplied)

This court does not find that the jury’s award, given that plaintiff has testified about the severe restrictions, pain and suffering that he suffers from, due to his worsening pulmonary asbestosis, is so excessive that it shocks our sense of justice or that the jury was guided by partiality, prejudice, mistake or corruption. However, this court deemed it reasonable and appropriate to accept the plaintiff’s offer of remittitur from the jury’s award in the amount of $5,000,000 down to $1,750,000.

Plaintiff’s Kentile and Amtico Product Identification

Plaintiff testified through his deposition on March 24, 2004, which was read to the jury at trial, that he directly used the asbestos floor tile of both Kentile and Amtico over the 21-year period that he worked as a layer of asbestos floor tile. Plaintiff testified that he could distinguish the different manufacturer of asbestos floor tile by their appearance. As the Superior Court said in the case of Cauthorn v. Owens Corning Fiberglas Corp., supra at pages 1039-40:

“(B) Whether appellant is entitled to judgment n.o.v. because plaintiff failed to establish product identification.

“To establish product identification in an asbestos case, the plaintiff must prove that he inhaled asbestos fibers from that particular manufacturer’s product. Lilley v. Johns-Manville Corp., 408 Pa. Super. 83, 596 A.2d 203, 207 (1991). Thus, we have stated: ‘[a] plaintiff must establish more than the presence of asbestos in the workplace. He must prove that he worked in the vicinity of the product’s use,’ and that his contact with that particular product ‘was of such a nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it.’ Andaloro v. Armstrong World Industries, 799 A.2d 71, 86 (Pa. Super. 2002).

“Viewing the evidence in the light most favorable to Mr. Cauthorn, he did just that. As stated above, Mr. Cauthorn testified that he worked consistently with two types of asbestos rope: John Crane and PARS. He knew this because he saw the names of both corporations on the packages of rope with the word ‘asbestos’ printed on the packages. With respect to the John Crane rope, he described it as packaged in ‘boxes and it was on rolls, spools that you roll off, and it was in bags also.’ This rope was white, not slick, pliable, and had to be cut with a knife. It was when he cut the rope with his knife that he would see the ‘dust’ coming from the rope. This dust he would then breathe in.

“On cross-examination it was elicited from the plaintiff that, at any given time, he did not know whether PARS or John Crane supplied the rope he was using. We, however, do not expect a plaintiff to come in with a journal describing what asbestos product he used on a given day. Mr. Cauthorn’s description of the asbestos rope was specific and demonstrated that he worked consistently with John Crane rope. This testimony was ‘of such a nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from John Crane’s asbestos rope.

“While appellant cites to the testimony of George McKillop to establish that its rope did not have the particular composition that Mr. Cauthom testified it did, such oral testimony seems to have been rejected by the jury. Such is the prerogative of the jury. Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979).

“Thus, it cannot be said that ‘no two reasonable minds could disagree that the outcome should have been rendered in favor of [John Crane].’ Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992).” (emphasis supplied)

This court believes that plaintiff has met his burden of proof on the identification of defendants’ products as the source of his asbestosis.

Cause for Grant of New Trial

The standard that a trial court must employ in determining whether to grant a motion for a new trial is: First, the trial court must decide whether a mistake occurred at trial. Second, if the trial court concludes that a mistake occurred, it must determine whether the mistake provided a sufficient basis for granting a new trial. The harmless error doctrine underlies every decision to grant or deny a new trial. The moving party must demonstrate to the trial court that he has suffered prejudice from the mistake. Ultimately, it then becomes a question of whether the trial court abused its discretion in denying the motion for a new trial. See Justice Newman’s opinion in Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000), where she said, at pages 466 and 1122:

“Thus, when analyzing a decision by a trial court to grant or deny a new trial, the proper standard of review, ultimately, is whether the trial court abused its discretion ....

“Each review of a challenge to a new trial order must begin with an analysis of the underlying conduct or omission by the trial court that formed the basis for the motion. There is a two-step process that a trial court must follow when responding to a request for new trial. . . First, the trial court must decide whether one or more mistakes occurred at trial. These mistakes might involve factual, legal, or discretionary matters. Second, if the trial court concludes that a mistake (or mistakes) occurred, it must determine whether the mistake was a sufficient basis for granting a new trial... The harmless error doctrine underlies every decision to grant or deny a new trial. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake.”

Accordingly, the defendants in their post-trial motions did not show to this court’s satisfaction that a mistake was made during this trial; let alone that there was a mistake of such magnitude that it so prejudiced the defendants’ case as to warrant the grant of a new trial.

Hypothetical Questions to Plaintiff’s Expert Witness by Plaintiff’s Counsel

This court believes that the hypothetical questions of plaintiff’s counsel made during this trial were proper and were not prejudicial to defendants. Defendants point to the video deposition of Daniel C. DuPont D.O., and claim that the hypothetical questions posed to Dr. DuPont were prejudicial in that plaintiff’s counsel was allowed by this court to assume that plaintiff removed the defendants’ floor tile and to assume that plaintiff did not work with Azrock asbestos products. Defendants miss the purpose of expert testimony. Dr. DuPont was not a fact witness who testified as to whose asbestos floor tile plaintiff used in his prior employment of laying asbestos floor tile. Dr. DuPont was presented by plaintiff to show the harm that working with asbestos floor tile caused to plaintiff’s health without regard to who the manufacturer was of the asbestos floor tile he used in his prior employment.

Prejudicial Comments to Jury by Plaintiff’s Counsel

As to defendants’ claim of purported prejudicial comments made in plaintiff’s counsel’s closing arguments, this court does not believe that plaintiff’s counsel’s comments were out of the norm for any trial provided the give and take that both sides usually engage in during a trial. Certainly there were no comments made by plaintiff’s counsel that were so prejudicial as to require the grant of a new trial. Defendants had ample opportunity to rebut plaintiff’s arguments in their own closing argument to the jury. Counsel for both Amtico and Kentile had an opportunity based on whatever evidence was produced at trial to rebut and dispel the reasonable inferences and suggestions made during closing remarks.

Rational Basis for Jury’s Finding in Favor of Azrock

The jury found that defendant Azrock’s asbestos-containing floor tile was not defective and therefore did not factually cause plaintiff’s injuries. (Phase II jury verdict slip question nos. 2 and 3.) In their answers to interrogatories, Amtico and Kentile admitted they manufactured and sold asbestos-containing floor tile and the specific amount or percentage of asbestos contained in their floor tile product and their lack of warnings for the use of their products during the years that plaintiff was employed in laying asbestos floor tile. No such evidence was produced at trial as to the amount of asbestos contained in Azrock asbestos floor tile or whether or not warnings were provided with Azrock’s products. This court believes that there was sufficient evidence before the jury to have concluded that the other defendant, Azrock, was not responsible for plaintiff’s injury.

Asbestos Products Are Inherently Dangerous Products

The Supreme Court has long recognized that asbestos containing products are inherently dangerous products, Azzarello v. Black Brothers Company Inc., 480 Pa. 547, 391 A.2d 1020 (1978). See the Supreme Court’s footnote 12 at pages 559 and 1027:

“We believe that an adequate charge to the jury, one which expresses clearly and concisely the concept of ‘defect,’ while avoiding interjection of the ‘reasonable man’ negligence terminology, is the jury instruction directed to the definition of a ‘defect,’ which was fashioned in large part by the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instmctions, Civil Instruction Subcommittee: ‘The [supplier] of a product is the guarantor of its safety. The product must, therefore, be provided with every element necessary to make it safe for [its intended] , use, and without any condition that makes it unsafe for [its intended] use. If you find that the product, at the time it left the defendant’s control, lacked any element necessary to make it safe for [its intended] use or contained any condition that made it unsafe for [its intended] use, then the product was defective, and the defendant is liable for all harm caused by such defect.’ Pennsylvania Standard Jury Instruction 8.02 (Civil), Subcommittee Draft (June 6,1976).”

The Superior Court in Andaloro v. Armstrong World Industries, supra, said at pages 87-88:

“Crane’s second issue concerns the court’s statement to the jury that asbestos products ‘are inherently dangerous’ and ‘require adequate warnings.’ Crane contends that ‘by instructing the jury that “asbestos products are inherently dangerous products,” and that “asbestos products require adequate warnings,” the court essentially eliminated plaintiffs’ burden of proof, excusing them from the duty to show that John Crane’s products were unreasonably dangerous without warnings.’ ...

“Crane’s argument misconstrues the content and purpose of the court’s instruction. The court’s statement that ‘asbestos-containing products are inherently dangerous products’ signals the court’s recognition of the legal question to be answered by the trial judge before a strict liability case may proceed to the jury. See Azzarello v. Black Brothers Co. Inc., 480 Pa. 547, [558,] 391 A.2d 1020, 1026 (1978) (determining that issue of whether a product is ‘unreasonably dangerous’ is a question of social policy properly determined by trial judge as a matter of law). Judge Halbert explained his position correctly and succinctly as follows:

“ ‘Asbestos proceedings are strict liability actions. In this light, it is proper for this court to make an initial determination that asbestos is inherently dangerous within the context of explaining strict liability. To hold otherwise would undermine the precedential basis for trying asbestos actions . . . statewide.’ Trial court opinion at 16.

“In this instance, the trial court made the statement in question while framing the issue for the jury’s consideration of whether John Crane’s product, which the court had determined to be dangerous as a matter of law, was defective due to lack of adequate warnings. R.R. at 3136a-3137a. We conclude that'the court’s discussion was proper and consistent with our Supreme Court’s direction. See Azzarello, [480 Pa. at 558,] 391 A.2d at 1026. Crane’s argument to the contrary is not supported by Pennsylvania law and is therefore without merit.”

Accordingly, this court finds that defendants’ asbestos floor tile products are inherently dangerous products and plaintiff was given no warning of their defect since both defendants admitted in their Interrogatories that they did not give asbestos warnings until plaintiff ended his employment of laying asbestos floor tile in 1977 (Amtico in 1977; Kentile in 1978).

Grounds for Entering Judgment N. O. V.

Judgment n.o.v. is an action that a trial court will not take lightly and hence such relief is granted in only a relatively rare and special case because our system of jurisprudence is based on the jury as the fact-finder. See Chief Justice Cappy’s concurring opinion in Hutchison v. Luddy, 560 Pa. 51, 742 A.2d 1052 (1999), where he said at pages 71 and 1062:

“A judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of [the plaintiff,] the verdict winner ... We must view the evidence in the light most favorable to... [the plaintiff]... as verdict winner, giving him the benefit of every reasonable inference of fact arising therefrom. Any conflict in the evidence must be resolved in favor [of the plaintiff] ... It is important to note that a reviewing judge’s, or justice’s, ‘appraisment of evidence is not to be based on how he would have voted had he been a member of the jury, but oh the facts as they come through the sieve of the jury’s deliberations.’ ”

As stated above, this was not a case where the jury’s verdict is clearly erroneous. In fact, this court believes that the jury’s verdict was supported by the evidence. Therefore, this court saw no reason to overturn the jury’s verdict by entering a judgment n.o.v. in favor of the defendants.

Reverse Bifurcation

Reverse bifurcation is a procedure well recognized by the Superior Court. In Andaloro v. Armstrong World Indus., supra, the Superior Court said at page 88:

“Initially, we note that Crane provides no authority in support of its conclusion that prejudice necessarily inured to the defense. Secondly, Crane fails to demonstrate that any prejudice actually accrued. Indeed, the bifurcated manner in which this case was tried renders prejudice far less likely than it might otherwise have been.'’'’ (emphasis supplied)

This court finds that the defendants have not shown that they were in any way prejudiced by this case being reverse bifurcated.

Consolidation of Two Asbestos Cases

This court did not err in consolidating this case with the case of Hood v. Georgia-Pacific because both cases involved plaintiffs who suffered asbestos caused injuries. This court is satisfied that there was no prejudice to plaintiffs or to defendants in both cases. Defendants have not shown that they were in fact prejudiced in any way. Nor have defendants cited any Pennsylvania appellate court case which proscribes the consolidation of cases such as was done here. See Andaloro v. Armstrong World Industries, supra, where the Superior Court approved the trial court’s consolidation of several cases. The court said at page 88:

“Crane asserts that the trial court erred in refusing to sever the five cases at issue in this appeal.... Crane argues that the trial of the asbestosis claims of Burkett, Greenhalgh, Ruby, and Swan with the mesothelioma claim of Franklin Andaloro prejudiced the defense ....

“We find the trial court’s reasoning on this issue unassailable. Crane cannot show prejudice as a result of the trial court’s decision not to sever these cases ....”

Both plaintiffs in this case were similarly aged and suffered from pulmonary asbestosis. As with the reverse bifurcation of cases, the Superior Court has shown an acceptance for procedures that provide judicial economies.

Fair Share Act

On the issue of the imposition of joint and several liability on the defendants, in particular, the applicability of the Fair Share Act, 42 Pa.C.S. §7102 to this case, this court is bound by the decision of the Commonwealth Court in DeWeese v. Weaver, 880 A.2d 54 (Pa. Commw. 2005), which declared the Fair Share Act to be unconstitutional and void.

CONCLUSION

For all the foregoing reasons, the judgment in favor of plaintiff and against defendants should be affirmed.

      . This court’s order dated August 1,2005, finding in favor of both plaintiffs was a clerical error. After the plaintiffs rested their case on February 10, 2005, the defendants moved for a dismissal of Mrs. Urbach’s claim for the loss of consortium. Mrs. Urbach did not testify and no evidence was presented by the plaintiffs to support a claim for loss of consortium. Accordingly, this court on February 10, 2005, at trial, dismissed Mrs. Urbach’s claim. This court’s order dated August 1, 2005, should have reflected that this court found in favor of Mr. Urbach alone in the amount of $1,750,000.

      . Defendant, The Flintkote Company, is bankrupt and no finding was made by the jury regarding it.

      . Reverse bifurcation in asbestos cases is a division of the case into two phases. In the first phase, the jury determines whether the plaintiff has been injured by exposure to asbestos and to what extent (amount of damages). In the second phase, the jury determines whether the defendant is liable for the plaintiff’s injury.

      . The statement of Kentile is 19 pages long and reads like a brief. The statement of Amtico is six pages long.

      . Plaintiff filed his complaint on August 15, 2003.


author: KLEINEELTER, J,

text:
    Pennsylvania Funeral Directors Association v. Cremation Society of Pennsylvania Inc.

      C.P. of Dauphin County,
    no. 2004 EQ 0040.
    November 17, 2005

      Loudon L. Campbell and Derek D. Bahl, for plaintiffs.

      Kathleen K Ryan and Jordan D. Cunningham, for defendants.
   KLEINEELTER, J,

This case presently comes before the court on preliminary objections filed by plaintiff, Pennsylvania Funeral Directors Association (PFDA) to defendants, Cremation Society of Pennsylvania, Veterans Cremation Society Inc., and Dale Auer’s (defendants) first amended counterclaim.

The underlying complaint in equity seeks a permanent injunction which would prohibit defendants from “engaging in funeral directing” and, more particularly: “the care and/or disposition of the human dead, making transportation arrangements for the removal and transfer of the deceased, cremation, preparation of the documents such as the death certificate, notification to Social Security and the Veterans Administration, approval from the coroner for cremation, assistance in placing the obituary, assistance to or in the planning of a memorial service or arranging a private family identification time, performing cremation services for the consuming public and from reaping or retaining any profit from the performance of cremation services.”

The complaint also asks the court to direct defendants to notify its customers of the entry of any injunction and to direct defendants to return to its customers 100 percent of any monies paid for services.

Defendants’ counterclaim contains two counts: libel (Count I) and tortious interference with contractual and business relations and opportunities (Count II).

COUNTERCLAIM FOR LIBEL

The counterclaim for libel avers: (.1) that allegations of illegal conduct made by PFDA in their complaint are knowingly false; (2) that the allegations were published in a press release which was forwarded to newspapers; and (3) that defendants’ reputation has been harmed thereby.

The preliminary objections by PFDA to this count take various forms. In paragraph 24, PFDA states that the counterclaim fails to state a claim or to aver facts in support of a claim for libel. This we treat as a demurrer. Paragraph 25 states that the claim of libel should be dismissed as a matter of law — but fails to suggest why. We will presume the legal basis is found in paragraph 26 which avers that a claim of libel is barred by “judicial privilege as the complaint is a pleading submitted to the court.” Paragraph 27 states that the averments in the complaint were “true, privileged or of public concern.” This “objection,” however, is in the nature of an affirmative defense and is not properly raised as a preliminary objection. Lastly, in paragraph 28, PFDA claims lack of specificity in pleading the libel counterclaim.

In support of their privilege objection, PFDA cites Bochetto v. Gibson, 580 Pa. 245, 860 A.2d 67 (2004), where the issue concerned the liability of an attorney for faxing a previously filed complaint to a reporter. Our Supreme Court ruled that the filing of the complaint was covered by the judicial privilege and a party is entitled to absolute immunity “for communications which are issued in the regular course of judicial proceedings and which are pertinent and material to the redress or relief sought.” Id., 580 Pa. at 251, 860 A.2d at 71. (citation omitted)

On the other hand, where a statement initially made in the regular course of judicial proceedings is later republished to another audience outside of those proceedings, such may be considered an extra-judicial act and may not be protected by the privilege. Id., 560 Pa. at 252, 860 A.2d at 72.

In the case at bar, what PFDA alleged in their complaint is clearly protected by the judicial privilege. On the other hand, when PFDA forwarded its allegations via press releases to its membership and to newspapers of general circulation, it arguably acted outside “the regular course of judicial proceedings.” For this reason, whether PFDA’s objection is viewed as a demurrer or motion to strike, it must fail at this juncture of the proceedings. We also believe this count must survive any challenge to the specificity of the pleadings.

COUNTERCLAIMS FOR TORTIOUS INTERFERENCE WITH EXISTING AND PROSPECTIVE CONTRACTUAL AND BUSINESS RELATIONS AND OPPORTUNITIES

PFDA’s first objection to this counterclaim is in the nature of a demurrer. The Restatement would impose liability for pecuniary loss on “[o]ne who intentionally and improperly interferes with the performance of a contract ... between another and a third person by inducing ... [them] not to perform the contact.” Restatement (Second) Torts §766. The absence of privilege or justification is a factor in judging the propriety of defendants’ conduct. Cloverleaf Development v. Horizon Financial, 347 Pa. Super. 75, 500 A.2d 163 (1985). Other factors to be considered are:

“(a) The nature of the actor’s conduct;

“(b) The actor’s motive;

“(c) The interests of the other with which the actor’s conduct interferes;

“(d) The interests sought to be advanced by the actor;

“(e) The social interest in protecting the freedom of action of the actor and the contractual interests of the other;

“(f) The proximity or remoteness of the actor’s conduct to the interference; and

“(g) The relations between the parties.” Small v. Juniata College, 452 Pa. Super. 410, 418, 682 A.2d 350, 354 (1996) (quoting Restatement (Second) of Torts §767).

PFDA’s argument in support of its objection is that the filing of its complaint and circulation of a press release was “proper” and that it was “privileged and justified.” This response, however, begs the question posed by a demurrer. Such defenses to the allegations should be raised by answer, and/or through a pleading of new matter. Accordingly, PFDA’s objection in the nature of a demurrer must be denied.

PFDA also challenges the interference with contract counts as lacking specificity. While we agree with PFDA that defendants have failed to identify by name those members who have cancelled their memberships and/or cremation agreements and have failed to specify the dollar amount of any financial loss, we believe that these questions can be ascertained through discovery. Moreover, as regards “prospective business relations,” such are incapable of being specifically identified at this juncture.

Finally, PFDA objects to any claim by defendants for punitive damages. Our review of the counterclaim reveals only one reference to punitive damages and that is in paragraph 96 (Count II) and in the ad damnum clause for Count II. Despite this scant reference to punitive damages and despite the lack of any specific allegation of egregious or outrageous conduct, we decline to strike this claim at this juncture. As this court has noted many times, a claim for punitive damages does not constitute a separate cause of action and challenges to such a claim should be deferred to such time as would be appropriate for summary judgment. See e.g., Wheeler v. Beverly Enterprises, 121 Dauph. Rep. 285 (2002).

We enter the following:

ORDER

And now, November 17, 2005, it is hereby ordered that the preliminary objections of Pennsylvania Funeral Directors Association to new matter and first amended counterclaim are denied.

      . References are to PFDA’s second amended complaint.

      . References are to defendants’ first amended counterclaim.


author: LYNN, J,

text:
    Santana v. Lucas

      C.P. of Philadelphia County,
    October Term 2003,
    no. 2300.
    November 30, 2005

      Regina A. Vogelsong, for plaintiffs.

      Elizabeth Ann Gray, for defendant.
   LYNN, J,

I. FACTS AND PROCEDURAL HISTORY

On March 28,2005, the above matter was tried before the undersigned, sitting with a jury. Plaintiffs, Luz Santana and Wilmer Sanchez, h/w filed a civil action against defendant, Barbara Lucas, for personal injuries sustained from an automobile accident on May 16,2002. The jury returned a verdict in favor of plaintiff in the amount of $168,000. Thereafter, plaintiff filed a motion for delay damages and defendant filed post-trial motions for a new trial, and/or to mold the verdict.

Defendant’s post-trial motions were denied by this court on July 7,2005, and plaintiff’s motion for delay damages was granted. Defendant filed a timely notice of appeal to the Superior Court. This court ordered defendant, the moving party, to file a concise statement of matters complained of on appeal pursuant to Rule 1925(b) of the Rules of Appellate Procedure within 14 days. Defendant filed a response on September 14, 2005.

The evidence at trial established that on May 16,2002, plaintiff Santana was driving south on Castor Avenue towards St. Vincent Street and saw that she had a green light. As she proceeded through the intersection the defendant’s car made a left hand turn in front of her. She stated that she was traveling the speed limit, 30 miles an hour, had a clear view of travel before entering the intersection and did not see the defendant prior to impact and tried to veer to the left to avoid hitting the defendant’s vehicle. However, her vehicle hit the passenger side of defendant’s vehicle. She stated that the impact “pretty much threw me out of my seat, threw me forward and then back.” Her face hit the steering wheel and her knees hit the dashboard. She was also bleeding from her mouth and her knee as well as having a swollen nose. (N.T 3/ 29/05. pp. 44-51.)

After the accident, plaintiff Santana testified that someone called her husband and he arrived at the scene. She stated that she was fuzzy, confused and a bit disoriented from the accident. She did not exit her vehicle until the paramedics removed her and transported her to Albert Einstein Hospital. Plaintiff Santana testified that she was very achy the next morning and sore all over. She stated she could not take care of her children or her husband. (N.T. 3/29/05, pp. 51-54, 56.) She went to her primary care physician who recommended physical therapy. She then went to see Dr. John Fisher for therapy for about five months and he sent her for an MRI. She was only out of work for approximately six weeks even though she was in a lot of pain. Plaintiff stated that even though she stopped treatment with Dr. Fisher, she had never folly recuperated. She never recovered from the injuries to her neck or back. (N.T. 3/29/05, pp. 54-61.) Plaintiff then testified that she went back to her family doctor because of the pain in January 2004. Dr. DeJoseph gave her some pain medication and in April sent her for more x-rays. According to plaintiff, he then referred her to an orthopedic doctor who gave her a cortisone shot and recommended more physical therapy. Plaintiff Santana testified that she did not go to therapy because she could not afford the payments. She also stated that she was recommended to Dr. Kenneth Izzo who performed an EMG and some additional testing. After a few months, Dr. Izzo recommended surgery for her neck and low back. (N.T. 3/29/05, pp. 62-67.)

As to her injuries, plaintiff testified that as a result, she has not been able to enjoy her life as she had prior to the accident, she cannot enjoy the same things with her daughter that she did with her son at the same age. Her relationship with her husband has changed, she cannot give her daughter a bath, getting dressed, cleaning her house, walking up and down the steps, and doing laundry, etc., has been affected by the accident. (N.T. 3/29/ 05, pp. 69-72.)

Plaintiff Sanchez next testified about the injuries and limitations his wife suffered from the accident. He stated that his wife is still in pain and he now takes care of their daughter more than before. The accident has also affected the intimacy of their marriage. (N.T. 3/29/05, pp. 9-28.)

Defendant testified that she was driving north on Castor Avenue on the day of the accident and intended to make a left hand turn onto St. Vincent Street. She stated that the light was green and after she came to a complete stop, she had her turn signal on, she proceeded because she did not see any other car coming towards her. Defendant testified that she was already into her turn, into the right hand lane, when she heard screeching tires. She immediately turned her head and saw a car headed towards her. (N.T. 3/30/05, pp. 32-37.) Defendant also testified that she was injured from the accident and suffered pain in her back, neck, shoulder and knee. (N.T. 3/ 29/05. p. 51.)

II. ISSUES

Defendant raises the following issues on appeal:

(1) The court erred in permitting physiatrist, Kenneth Izzo M.D., to testify to potential future treatment and costs associated with same despite defendant’s objections that the testimony was speculative and, therefore, inappropriate for the jury to consider.

(2) The court erred in excluding the January 20, 2005 supplemental report of orthopedic surgeon, Arnold Berman M.D., and his testimony concerning same when that report merely elaborated on his earlier report concerning his review of plaintiff’s lumbar spine MRI.

(3) The court erred in charging the jury as follows:

“I instruct you that a negligent defendant takes a victim as it finds her and is hable for the full extent of damages inflicted even though the damage is greater than it would otherwise be because the plaintiff is particularly susceptible to injuries. A negligent defendant is responsible for all the injuries caused by his actions, and if the plaintiff, because of a peculiar condition or susceptibility, is injured more than she would have been had she not had such a pre-existing condition or susceptibility, the negligent person is responsible for all the injuries resulting from her act.

“One may be inflicted with a latent pre-existing condition which is aggravated, accelerated or precipitated by a negligent act of another. In such a situation the wrongdoer is held responsible for the injury so produced even though so great an injury would not have been produced in a person not so inflicted.”

Defendant objected to plaintiff’s proposed point for charge no. 21 as stated above. The court overruled defendant’s objection and read the charge as stated.

(4) The court erred in refusing to reread the point for charge regarding a motorist’s duty to have his vehicle under control to the jury in response to the jury’s question, “Can we have a copy of the law concerning control of an automobile?”

(5) The court erred in refusing to have the jury correct its inconsistent verdict and/or in failing to mold the verdict to reflect the fact that the jury found only 80 percent causal negligence on defendant Barbara Lucas.

(6) The court erred in failing to remit the verdict as it was excessive in light of the record and was against the weight of the evidence.

(7) By order dated July 7, 2005, this honorable court granted plaintiff’s motion for imposition of delay damages and molded the verdict to $169,524.60. The court erred in granting delay damages at all and further erred in granting the amount it did.

III. DISCUSSION

Defendant’s first argument is that this court erred in permitting physiatrist, Kenneth Izzo M.D., to testify to potential future treatment and costs associated with same despite defendant’s objections that the testimony was speculative and, therefore, inappropriate for the jury to consider. In reviewing a trial court’s admission of testimony, the Superior Court will reverse only if there has been an abuse of discretion or error of law. Gatto v. Kisloff, 437 Pa. Super. 328, 649 A.2d 996 (1994); Dolan v. Carrier Corporation, 424 Pa. Super. 615, 618, 623 A.2d 850, 852 (1993). See also, Gemini Equipment Co. v. Pennsy Supply Inc., 407 Pa. Super. 404, 412, 595 A.2d 1211, 1215 (1991); Smith v. Brooks, 394 Pa. Super. 327, 336, 575 A.2d 926, 930 (1990).

Defendant argues that the testimony of Dr. Izzo that related to the potential future medical treatment and costs of plaintiff Santana was speculative. However, this court correctly overruled the defendant’s objection as it was not clear that his testimony was speculative or based on mere conjecture. Defendant argues that Dr. Izzo’s opinion was a guess and/or based on conjecture; however Dr. Izzo was one of plaintiff Santana’s treating physicians. The purpose of her visit was to be evaluated for medical treatment or recommendations. Dr. Izzo discussed the examination of plaintiff Santana and the reports he reviewed from her other treating physicians. (Deposition testimony of Dr. Izzo, 1/21/05, pp. 15-39.) Based on Dr. Izzo’s physical examination of plaintiff, and Dr. Izzo’s practice of medical pain management, he was asked about the cost of any future medical care for plaintiff. Dr. Izzo opined that plaintiff was suffering from permanent injuries to her neck and back which would require additional medical treatment. The responses of Dr. Izzo were not speculative, not based on conjecture. Based on the injuries sustained by plaintiff and the pain she still suffered from, it was not speculative to state that she would need surgery and additional medical treatment to either correct the problem or alleviate the pain. Dr. Izzo was absolute in his opinion that plaintiff would require additional treatment for her injuries. Nor was it speculative to estimate the cost to plaintiff where he could. Dr. Izzo explained there were three treatment levels and the costs associated with each one. (Deposition testimony of Dr. Izzo, 1/21/05, pp. 40-45.)

While it is not appropriate for the witness to guess or state an opinion based on mere conjecture, Pa.R.E. 602, the Supreme Court has ruled that where there is sufficient evidence that treatment would continue into the future, past medical treatment alone was a sufficient basis to sustain a monetary recovery for future treatment. Pratt v. Stein, 298 Pa. Super. 92, 444 A.2d 674 (1982); see also, Walsh v. Brody, 220 Pa. Super. 293, 286 A.2d 666 (1971). Here, testimony was presented as to plaintiff Santana’s past medical treatment, as well as her need for future treatment as these injuries were determined to be permanent. Therefore, it was not error for this court to allow Dr. Izzo’s testimony.

The defendant next argues that this court erred in excluding the January 20,2005 supplemental report of orthopedic surgeon Arnold Berman M.D., and his testimony concerning same when that report merely elaborated on his earlier report concerning his review of plaintiff’s lumbar spine MRI. This court granted plaintiff’s motion because the supplemental report of Dr. Berman was provided to plaintiff after the close of discovery and just before the deposition of the medical expert and was deemed by this court to be unfair to the plaintiff. While this court was quite aware of the rule and/or custom that allows defendants to give their expert witness notice at the beginning of trial, this particular case was different. The defendant was not prejudiced by the exclusion of this report as defendant’s expert was still able to testify to the same findings and conclusions that were in the January 20,2005 report since this report contained substantially the same material findings as his November 9, 2004 report. Therefore, no prejudice was suffered by defendant and the supplemental report was properly excluded.

The defendant’s third argument is that this court erred in charging the jury as follows:

“I instruct you that a negligent defendant takes a victim as it finds her and is liable for the full extent of damages inflicted even though the damage is greater than it would otherwise be because the plaintiff is particularly susceptible to injuries. A negligent defendant is responsible for all the injuries caused by his actions, and if the plaintiff because of a peculiar condition or susceptibility is injured more than she would have been had she not had such a pre-existing condition or susceptibility, the negligent person is responsible for all the injuries resulting from her act.

“One may be inflicted with a latent pre-existing condition which is aggravated, accelerated or precipitated by a negligent act of another. In such a situation the wrongdoer is held responsible for the injury so produced even though so great an injury would not have been produced in a person not so inflicted.”

Defendant objected to plaintiff’s proposed point for charge no. 21 as stated above. The court overruled defendant’s objection and read the charge as stated.

“A motion for a new trial based upon the sufficiency of the jury charge will only be granted when the court determines that the charge in its entirety and against the background of the evidence was erroneous and might have prejudiced [the complaining party].” O’Sullivan v. Joy Technologies Inc., 446 Pa. Super. 140, 150, 666 A.2d 664, 669 (1995). Moreover, the trial judge has wide latitude in charging the jury so long as the judge fully conveys the laws of the case to the jury. Levine v. Rosen, 19 Phila. 529 (1989).

Defendant argues that the court’s charge to the jury was in error as there was no evidence produced at trial that the plaintiff was “particularly susceptible to injuries,” nor that she had a “peculiar condition or susceptibility” nor a “latent pre-existing condition which was aggravated, accelerated or precipitated by a negligent act of another.” In the instant case, the defendant’s medical expert testified that plaintiff’s condition was degenerative and predated the accident. Plaintiff testified that she had fallen and injured her back in April 2000. (N.T. 3/ 29/05, p. 38.) Nevertheless, the jury was instructed that it was their recollection and interpretation of the evidence that controlled the case. (N.T. 3/31/05, pp. 54-55.) They were also told that this court had no view on the facts of the case and regardless of any view this court may have with regard to the facts, it was not binding on them. (N.T. 3/31/05, pp. 55-56.) The jury was free to believe or disbelieve any of the testimony. The jury was the sole judge of the credibility or believability of each witness. (N.T 3/31/05, pp. 60-62.)

The jury charge, read in its entirety, must be fundamentally flawed in order to constitute grounds for post-trial relief and must have altered the result of the trial itself. Reilly by Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985). Upon careful consideration of the jury charge, this court finds the charges given were proper.

The defendant’s fourth argument is that this court erred in refusing to reread the point for charge regarding a motorist’s duty to have his vehicle under control to the jury in response to the jury’s question, “Can we have a copy of the law concerning control of an automobile?” During deliberations, the jury asked for a copy of the law concerning control of an automobile. However, prior to the jurors being brought back into the courtroom as this court was not going to give them a copy of the law, the jury sent another note advising the court that they “worked it out.” The court asked both plaintiff’s counsel and defense counsel whether they agreed that the jury no longer needed the assistance of the court and both agreed. (N.T. 3/31/05, pp. 90-91.) The jury was polled and each agreed with the verdict as read. As such, there was no error in not reading the law concerning control of an automobile to the jury.

The defendant’s next argument is that the court erred in refusing to have the jury correct its inconsistent verdict and/or in failing to mold the verdict to reflect the fact that the jury found only 80 percent causal negligence on defendant, Barbara Lucas, and that the verdict was excessive in light of the record and was against the weight of the evidence.

It is well established that the trial court has wide discretion on whether or not to grant a new trial. Coker v. S.M. Flickinger Company Inc., 533 Pa. 441, 625 A.2d 1181 (1993). “A trial court may only grant a new trial when the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice.” Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995). Anew trial should not be granted on a mere conflict in testimony, Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984), or because a trial judge on the same facts would have arrived at a different conclusion. Nudelman v. Gilbride, 436 Pa. Super. 44, 647 A.2d 233 (1994).

The duty to assess damages is squarely within the province of the jury, who as the finders of fact weigh the veracity and credibility of the witnesses and their testimony. Dranzo v. Winterhalter, 395 Pa. Super. 578, 577 A.2d 1349 (1990); Cree v. Horn, 372 Pa. Super. 296, 539 A.2d 446 (1988), appeal denied, 519 Pa. 660, 546 A.2d 621 (1988). The Superior Court has stated that the standard upon reviewing a trial court’s decision that damages were adequate and that it should thus refuse to grant a new trial is extremely narrow:

“It is well established law in the Commonwealth that a decision to grant a new trial because of any impropriety in the verdict is well within the discretion of the trial court and in the absence of a clear abuse of its considerable discretion will not be disturbed on appellate review. Reitz v. Donise Enterprise, 319 Pa. Super. 76, 465 A.2d 1060 (1983). Our court has set forth the following criteria to determine when a verdict can be set aside as inadequate:

“A verdict is set aside as inadequate when it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. If the verdict bears a reasonable resemblance to the damages proved, the appellate court will not disturb the verdict merely because the damages are less than the reviewing court might have awarded, (citations omitted) Slaseman v. Myers, 309 Pa. Super. 537, 540-41, 455 A.2d 1213, 1215 (1983).” Smith v. Barker, 368 Pa. Super. 472, 475-76, 534 A.2d 533, 535 (1987), appeal denied, 520 Pa. 577, 549 A.2d 137 (1988).

To support the grant of a new trial for inadequacy of the damage award, the injustice of the verdict “should stand forth like a beacon.” Dranzo, supra at 585, 577 A.2d at 1352; Cooley v. Jefferson Bank, 355 Pa. Super. 1, 4, 512 A.2d 713, 714 (1986) (citing numerous cases). In Dranzo, the court found that Mrs. Dranzo suffered severe injuries in the accident, primarily a fracture to her left hip and her left heel. She still had pain, a permanent limp and her earning capacity had been permanently diminished. The parties stipulated to the amount of medical expenses and wage loss, amounting to a total of $23,416.01. The jury had returned a total verdict of $118,736.01 for Mrs. Dranzo, damages in the amount of $27,000 for her daughter, and damages in the amount of $5,000 for her husband’s loss sustained as her husband and in the amount of $13,070.90 for loss sustained as his daughter’s father. On appeal, the trial court wrote:

“No doubt the injuries suffered by Mrs. Dranzo may well have supported a considerably higher verdict, but the fact remains that all of this evidence was presented to the jury, and this court cannot say that the amount of the verdict shocks the conscience of the court. Generally, the consortium claim of her husband, John Dranzo, rests on the oral testimony of these plaintiffs, and essentially, the amount awarded must be determined by the good sense of the jury upon consideration of all the evidence.” Opinion, 7-21-89 at 17.

The Superior Court agreed with the trial court and found that no injustice had been done in the case.

In the instant case, as in Dranzo, the allegation that this court should have changed the jury verdict must fail. As stated above, it is the jury’s province to determine the amount of damages. This court has determined that the award of damages was acceptable based on the evidence presented by plaintiff. Here, the verdict and the amount award thereof does not stand forth like a beacon.

Defendant argues that the verdict was inconsistent because they answered Question no. 5 that plaintiff was 20 percent comparatively negligent. (N.T. 3/31/05, p. 97.) However, the jury found that the plaintiff’s negligence was not a factual cause of her harm. A careful reading of the verdict sheet that both plaintiff and defense counsel agreed upon, if the jury answered “no” to Questions no. 3 or 4, they were to go to Question no. 6 and not answer Question no. 5. (N.T. 3/31/05, pp. 92-93, 95.) Additionally, after defense counsel requested that the jury be questioned as to why they answered Question no. 5 after answering “no” to Question no. 4, this court had the jury foreman confirm the verdict and the fact that the jury agreed that plaintiff’s negligence was not a factual cause of her harm. (N.T. 3/31/05, p. 97.) As the verdict was consistent with the jury’s finding that plaintiff’s negligence was not a factual cause of her harm, the verdict was not inconsistent and could be recorded as stated by the jury.

The defendant also argues that because the arbitration award to plaintiff was only $21,043.75, the verdict found by the jury is excessive. In this case, the defendant appealed the arbitration award. Moreover, an appeal from an arbitration award results in a trial de novo. While the evidence submitted may have supported different verdict amounts, this court will not invade the province of the jury to substitute its standards over those of the jury after careful deliberations. See Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992). There is no evidence that the verdict resulted from passion, prejudice, partiality or corruption and, therefore, no alteration of the verdict will be awarded or a new trial granted.

Lastly, defendant argues that this court erred in granting delay damages and further erred in granting the amount it did. The point at which delay damages start to accrue is dependent on when the action was filed. Three issues arise as to the proper calculation of delay damages in this case. First, plaintiff should not be penalized for the postponement of trial from January 2005 to March 2005 due to counsel’s trial schedule. The plain language of Rule 238 makes it clear that plaintiff’s conduct will affect delay damages award where such conduct “caused the delay of trial.” Pa.R.C.P. 238(b)(2), 42 Pa.C.S. In addition, the Explanatory Comment to Rule 238 further states that “[wjith respect to the delay of trial, not every procedural delay is relevant to the issue of delay damages, but only such occurrences as actually cause delay of the trial.” Rule 238. Explanatory Comment, 519 Pa. LXXII, LXXV.

When plaintiff’s counsel was notified of the placement of this matter in the January trial pool, he immediately notified the court and defense counsel that he had two previous trials already scheduled in the January trial pool. Defendant argues that since plaintiff’s counsel’s schedule caused the postponement of trial from January 2005 to March 2005, defendant should not be liable for delay damages for this period of time. However, plaintiff did not cause the postponement of trial in bad faith. This court fails to see how the purposes of Rule 238 are served by penalizing the plaintiff for her counsel’s schedule which is beyond her control.

Moreover, it would be unreasonable and unjust to deny delay damages where both parties are blameless. King v. SEPTA, 383 Pa. Super. 420, 422, 557 A.2d 11, 12 (1989). “Fundamental fairness would require ... that the plaintiffs receive interest on what is essentially their money for the period that is held by the defendants who... had use of that money____Awarding ‘delay damages’ under such circumstances does not penalize defendants . . . because they had an opportunity to protect themselves from exposure to delay damages by making a reasonable offer of settlement in good faith and in timely fashion.” Id. at 422, 557 A.2d at 12 (citing trial court opinion at 6). The Supreme Court of Pennsylvania has held that even delays attributable to the judicial system are chargeable to the defendant. See e.g, Craig v. Magee Memorial Rehabilitation Center, 400 Pa. Super. 126, 133, 582 A.2d 1376, 1380 (1990).

The drafters of the revised rules “have not allowed for the exclusion of periods of delay not caused by either party.” King v. SEPTA, 383 Pa. Super. 420, 424, 557 A.2d 11, 13 (1989) quoting Miller v. Wise Business Forms Inc., 381 Pa. Super. 236, 241, 553 A.2d 443, 446 (1989). Therefore, since plaintiff is not responsible for the postponement of trial in January 2005, defendant would be liable for its share of the delay damages accrued.

Secondly, Rule 238 (a)(2)(h) provides that “damages for delay shall be awarded for the period of time in an action commenced on or after October 1, 1989, from a date one year after the date original process was first served in the action up to the date of the award, verdict or decision.” Pa.R.C.P. 238(a)(2)(h). It is uncontested that defendant was first served on February 13, 2004. It then follows that February 13, 2005, would be the date one year after the date original process was served on the defendant. Moreover, the parties also do not contest that March 31,2005, the date of this court’s liability determination, is the date of award, verdict, or decision. Therefore, delay damages were to be calculated from February 14,2005 to March 31,2005 and were properly awarded.

IV. CONCLUSION

In summary, this court has carefully reviewed the entire record and finds no harmful, prejudicial or reversible error and nothing to justify the granting of defendant’s motion.