author: BLACK, J,

text:
    Unger v. Allen

      Gary S. Figore, for plaintiffs.

      Howards. Stevens, for defendants Allen, Fassl, Sotack, Lehigh Valley Physicians Group, Lehigh Valley Flospital and Lehigh Valley Health Network.

      Howard M. Klein, for defendants Logan and Pinkney.
    September 26, 2006
   BLACK, J,

This is a medical malpractice action in which the plaintiffs allege that their 15-year-old daughter, Meredith, died as a result of professional negligence on the part of the defendants in treating her for a Tylenol overdose. The individual defendants are the physicians and nurses who treated Meredith when she was brought to the emergency room of the defendant Lehigh Valley Hospital (LVH).

The plaintiffs have filed a second amended complaint in which they assert seven causes of action individually and on behalf Meredith’s estate. These causes of action include a claim on their own behalf for negligent and intentional infliction of emotional distress (Count I), a claim on their own behalf for civil conspiracy (Count II), claims under the Wrongful Death Act (Counts III and IV), claims on behalf of Meredith’s estate under the Survival Act (Counts V and VI), and a claim for punitive damages (Count VII).

Before the court for disposition are two separate sets of preliminary objections to the plaintiffs’ second amended complaint. The first set of objections was filed by the defendants Sabrina Logan M.D., and Kerrie Pinkney. A second set of objections was filed by the remaining defendants. For the reasons stated below, we have sustained some of the objections and overruled others.

FACTUALBACKGROUND

According to the complaint, on February 15, 2004, Meredith L. Unger, then 15 years of age, was received into the emergency room at LVH. At the time of her arrival Meredith was unconscious. The medical team at LVH, including the defendants Brian D. Allen R.N. and/ or B.D.A. R.N., Joseph Fassl M.D., William SotackD.O. and Sabrina Logan M.D., evaluated Meredith’s condition and concluded that she was suffering from acetaminophen toxicity resulting from the ingestion of Tylenol. A nasogastric tube and an endotracheal tube were inserted through Meredith’s nose and mouth respectively. A medical team member ordered the administration of N-acetylcysteine (Mucomyst) to Meredith through her nasogastric tube. However, one of the defendants erroneously administered the Mucomyst into Meredith’s endotracheal tube, causing severe respiratory complications.

Meredith’s condition, deteriorated significantly after the erroneous administration of Mucomyst. Later the same day, on February 15, 2004, Meredith was transported by helicopter to Children’s Hospital of Philadelphia (CHOP) for a liver transplant. Her condition continued to deteriorate at CHOP, and she died two days later, on February 17, 2004.

The erroneous administration of Mucomyst was not noted on the LVH records until February 17, 2004, two days after Meredith had been transported to CHOP. Consequently, the medical records provided to CHOP did not disclose the Mucomyst mishap.

DISCUSSION

I. The Preliminary Objections of Defendants Sabrina Logan M.D. and Kerrie Pinkney M.D.

A. Motion To Strike (Demurrer) for Failure To State a Cause of Action for Loss of a Child’s Consortium

In their complaint the plaintiffs claim damages in their own right for loss of their child’s companionship, relationship, society, comfort, guidance, solace and protection. However, under the law of Pennsylvania such damages are not recoverable for the death of a child. Therefore, the plaintiffs’ claim for such damages must be stricken from the complaint.

The Pennsylvania courts have recognized only two categories of damages recoverable by a parent for injury to, or death of, a minor child. The first category includes hospital, nursing, medical, funeral expenses and expenses of administration of the child’s estate. This category is specifically provided for in section 8301(c) of the Wrongful Death Act. The second category of damages is the pecuniary value of the loss of the child’s services during minority. This second category is recoverable as “other damages” in section 8301(c). Our appellate courts have held that the pecuniary value of the services lost must be reduced by the parent’s savings in the cost of maintaining the child. Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549 (1930).

It is well-settled in Pennsylvania that when a child has been tortiously injured, the parents may not recover for their affectional or emotional loss. See Quinn v. City of Pittsburgh, 243 Pa. 521, 90 A. 353 (1914) (denying mother’s claim for loss of companionship resulting from serious injury to her 10-year-old daughter); Brower v. City of Philadelphia, 124 Pa. Commw. 586, 557 A.2d 48 (1989) (denying parents’ claim for loss of their 19-year-old son’s services and his comfort, society and companionship, where he was rendered quadriplegic from accident).

Our appellate courts have applied the same limitation in cases involving the death of a child. See Jackson v. Tastykake Inc., 437 Pa. Super. 34, 648 A.2d 1214 (1994) (denying parents’ wrongful death claim for loss of child’s companionship, comfort and society); Schroeder v. Ear, Nose and Throat Associates of Lehigh Valley Inc., 383 Pa. Super. 440, 557 A.2d 21 (1989), appeal denied, 523 Pa. 650, 567 A.2d 653 (1989) (denying claim by parents of aborted fetus for loss of filial consortium). We previously reviewed the historical development of Pennsylvania law on this issue in Covert v. Cedar Fair L.P., no. 98-C-79 (Lehigh Cty., December 28, 2000) at www. lccpa.org, and concluded that parents could not recover for loss of filial consortium arising from the death of their child.

More recently, in Department of Public Welfare v. Schultz, 822 A.2d 876 (Pa. Commw. 2003), the Commonwealth Court also rejected a parental claim for loss of filial consortium. In that case a parent had brought a wrongful death and survival action against the State Hospital and Department of Public Welfare after the child/patient walked out of the hospital and was found frozen to death. The court held that a parent may not recover noneconomic damages for the loss of support, companionship and society of a deceased child. The court determined that a cause of action for loss of consortium is a claim available only to a spouse.

Accordingly, we must grant the motion to strike the allegations set forth in paragraphs 96, 97 and 98 of the complaint for loss of the child’s companionship, relationship, society, comfort, guidance, solace or protection.

The plaintiffs’ claim for loss of their child’s services and support during her minority remains, since parents can recover under the Wrongful Death Act for loss of the pecuniary value of such services and support. Any such loss, however, must be offset by the savings to the plaintiffs in the cost of maintaining the child during minority. Therefore, as a practical matter, the plaintiffs may be unable to prove a net financial loss from the death of their child. Indeed, in this day and age it will be a rare case where the pecuniary value of a loss of a minor child’s services exceeds the parents’ savings in the costs of maintaining the child. Nevertheless, we are still at the pleading stage in this case, and therefore we cannot summarily rule out this portion of the plaintiffs’ claim.

B. Motion To Strike (Demurrer) for Failure To State a Claim for Negligent Infliction of Emotional Distress

In Count I the plaintiffs assert a claim in their own right for negligent infliction of emotional distress. To succeed on such a claim, a plaintiff must establish three elements: (1) that the plaintiff was located near the scene of the traumatic event; (2) that the plaintiff suffered shock from the sensory and contemporaneous observance of the event; and (3) that there was a close relationship between the plaintiff and the victim. Sonlin v. Abington Memorial Hospital, 748 A.2d 213, 217 (Pa. Super. 2000). The contemporaneous observation of the injury-causing event is an essential element of the claim. The premise is that one who “is not present at the scene of tortious conduct... is buffered against the full impact that presence and observation would have entailed.... ‘By contrast, the relative who contemporaneously observes the tortious conduct has no time span in which to brace his or her emotional system.’” Taylor v. Albert Einstein Medical Center, 562 Pa. 176, 183, 754 A.2d 650, 653 (2000), citing Mazzagatti v. Everingham, 512 Pa. 266, 279, 516 A.2d 672, 679 (1986). (citations omitted)

In this case, the complaint does not aver that the plaintiffs actually witnessed the erroneous administration of the Mucomyst to their daughter, and plaintiffs’ counsel acknowledged at oral argument that they did not do so. The plaintiffs allege only that they were “in close proximity to and in Meredith’s presence immediately before and after the Mucomyst mishap.” In Pennsylvania, proximity to an accident is not enough to sustain a claim for negligent infliction of emotional distress. Since the plaintiffs did not actually witness the mishap, their claim for negligent infliction of emotional distress must be dismissed.

C. Motion To Strike (Demurrer) for Failure To State a Claim for Intentional Infliction of Emotional Distress

In Count I the plaintiffs also seek to recover damages in their own right for the tort of intentional infliction of emotional distress. Section 46 of the Restatement (Second) of Torts (1965) defines this tort as follows:

“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
“(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress
“(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or
“(b) to any other person who is present at the time, if such distress results in bodily harm.”

The defendants contend that the Pennsylvania appellate courts have not recognized a cause of action for intentional infliction of emotional distress. However, although our appellate courts have not expressly recognized this tort and have not expressly adopted section 46 of the Restatement, they have cited section 46 as setting forth the minimum requirements for such a cause of action. See e.g., Taylor v. Albert Einstein Medical Center, supra. We believe that in a proper case our appellate courts, which usually follow the Restatement, would adopt section 46 as the law of Pennsylvania.

Nevertheless, we do not believe this is a proper case. The allegations of the complaint are not sufficient to state a cause of action for intentional infliction of emotional distress. In Taylor v. Albert Einstein Medical Center, supra, our Supreme Court considered the requirements of a claim for intentional infliction of emotional distress where the parents of a deceased child had brought a medical malpractice action. The court specifically considered whether the parents must have had a contemporaneous sensory perception of the intentional tort committed upon their child in order to recover. In concluding that there was such a requirement, the court expressly relied upon section 46 of the Restatement, as well as its accompanying comments. This is the same requirement discussed above for sustaining a claim of negligent infliction of emotional distress. Since the plaintiffs in the instant case did not witness Meredith’s injury, in accordance with the Taylor decision, they cannot recover in their own right for intentional infliction of emotional distress on Meredith.

The plaintiffs assert a second theory in support of their claim of intentional infliction of emotional distress, i.e., a claim that the defendants intentionally inflicted emotional distress on them. They allege that the individual defendants failed to disclose the Mucomyst mishap to them and intentionally failed to document their daughter’s medical chart to reveal the mishap. However, the complaint does not aver that these failures were intended to cause emotional distress to the plaintiffs, and it is difficult to conceive how they could be so intended.

Moreover, these alleged failures, while inappropriate, do not in our judgment rise to the level of extreme and outrageous behavior that is required for a claim for intentional infliction of emotional distress. As our Supreme Court stated in Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745 (1998), to sustain such a claim, it is necessary that the conduct complained of “must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Id. at 151, 720 A.2d at 754, citing Buczek v. First National Bank of Mifflintown, 366 Pa. Super. 551, 558, 531 A.2d 1122, 1125 (1987).

The conduct alleged by the plaintiffs, a two-day delay in recording information on a medical chart, does not meet this high standard.

For these reasons, the plaintiffs’ claims for intentional infliction of emotional distress must be dismissed.

D. Motion To Strike (Demurrer) for Failure To State a Cause of Action for Civil Conspiracy

In Count II of their complaint the plaintiffs assert a claim for civil conspiracy. They allege that the defendants “agreed/conspired to not timely document Meredith’s medical chart, to not timely inform the parents of the Mucomyst mishap and ... to not inform the receiving healthcare providers at CHOP of Meredith’s actual condition and inform them upon Meredith’s transfer of the Mucomyst incident.”

The ingredients of a cause of action for civil conspiracy were recently summarized in Goldstein v. Phillip Morris Incorporated, 854 A.2d 585, 590 (Pa. Super. 2004) as follows:

“In order to state a civil action for conspiracy, a complaint must allege: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage. . . . Additionally, ‘absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act.’ ” (citations omitted) See also, McKeeman v. Corestates Bank N.A., 751 A.2d 655, 660 (Pa. Super. 2000).

Proof of malice is also an essential element of the cause of action. Burnside v. Abbott Laboratories, 351 Pa. Super. 264, 278, 505 A.2d 973, 980 (1985).

The defendants point out that under Pennsylvania law a single entity cannot conspire with itself; nor can the agents of an entity conspire among themselves. Rutherfoordv. Presbyterian-University Hospital, 417 Pa. Super. 316, 612 A.2d 500 (1992). However, there are three exceptions to this general rule: (1) where an employee acts in his own bests interests, not for the benefit of the corporation, (2) where a third party participated in the conspiracy, and (3) where a parent and subsidiary corporation have participated in the conspiracy. Castle v. Crouse, no. 03-5252, 2004 WL 257389, at 6 (E.D. Pa., Feb. 11, 2004); Jackson v. T & N Van Service, 117 F. Supp.2d 457 (E.D. Pa. 2000); Commonwealth of Pennsylvania v. BASF Corp., no. 3127, 2001 WL 1807788, at 17 (Phila. C.C.P., Mar. 15, 2001). In this case the plaintiffs argue that the individual defendants were acting in their own interests by attempting to “cover up” the Mucomyst mishap (exception 1), and also that one of the alleged co-conspirators, Sabrina Logan M.D., is an employee of CHOP (exception 2). We believe that exceptions 1 and 2 are supported by the allegations of the complaint.

Nevertheless, the complaint fails to state a cause of action for conspiracy because it does not aver any overt act on the part of a defendant to further the alleged common purpose. It is not enough to allege that the defendants agreed not to report the Mucomyst mishap as part of a conspiracy to conceal the mistake. The requirement of an overt act is an essential part of conspiracy law. Goldstein, 854 A.2d at 590. An agreement to conceal may be the basis for a conspiracy claim, but only where there has been an overt act to cover up or conceal. For example, when the Watergate co-conspirators shredded or “deep-sixed” documents, these were overt acts aimed at furthering their common purpose of concealment. The complaint does not aver any overt act to cover-up or conceal in this case. For this reason, Count II for civil conspiracy must be dismissed.

E. Motion To Strike (Demurrer) for Failure To State a Claim or Assert Elements Necessary To Sustain a Claim for Punitive Damages

Count VII of the complaint is a claim for punitive damages. The plaintiffs also have included a claim for such damages in the ad damnum clauses of Counts I, II, V and VI. In a proper case punitive damages can be recovered, but there is no separate cause of action for punitive damages in Pennsylvania; it is only an element of damages. Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 101, 555 A.2d 800, 802 (1989). Therefore, Count VII must be dismissed. Since Counts I and II have already been dismissed, we need not address the issue of punitive damages further except with regard to Counts V and VI, the survival actions on behalf of Meredith’s estate.

Punitive damages are awarded in order to punish an individual for wrongful behavior. SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 493, 587 A.2d 702, 704 (1991). The wrongful behavior must be outrageous “because of the defendant’s evil motive or his reckless indifference to the rights of others.” Restatement (Second) of Torts §908(2); see Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). Reckless indifference to the rights of others is more than mere negligence or even gross negligence. It is defined in section 500 of the Restatement (Second) of Torts (1965) as follows:

“The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.”

In this case we cannot determine from the complaint alone whether the alleged administration of Mucomyst into Meredith’s endotracheal tube constituted reckless indifference to Meredith’s rights. A fuller development of the factual record is necessary before we can properly rule on this issue. Therefore, we decline to dismiss the punitive damage claims in Count V and VI at this juncture.

F. Motion To Strike (Demurrer) to Plaintiffs’ Claims of Reckless Conduct and Plaintiffs’

Use of Impertinent Language Pursuant to Pa.R.C.P. 1028(a)(2)

The defendants request that this court strike claims of reckless and outrageous conduct in paragraphs 51, 61, 64, 73, 90, 95, 101, 102, 128 and 129 of the complaint. They contend that the allegations amount to impertinent language. We disagree. Because we have permitted the claim for punitive damages in Count V to proceed, the allegations in these paragraphs may be relevant. Accordingly, the defendants’ objection is overruled.

G. Motion To Strike Vague Allegations of Negligence

We believe the allegations of negligence are sufficiently specific to apprise the defendants of the plaintiffs’ claims. Further details can be obtained through discovery. Hence, this objection is overruled.

II. The Preliminary Objections of Defendants Brian D. Allen R.N. and/or B.D.A., R.N., Joseph Fassl M.D., William Sotack D.O., Lehigh Valley Physician Group, Lehigh Valley Flospital and Lehigh Valley Health Network

A. Motion To Strike (Demurrer) to Plaintiffs’ Claims Under EMTALA

The plaintiffs allege that the corporate defendants violated the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd et seq., in the transfer of Meredith to CHOP. EMTALA was enacted to prevent hospitals from “dumping” emergency patients who are unable to pay for medical services, until after their emergency medical condition has been stabilized. The Act applies only to hospitals and not to any of the individual defendants.

The corporate defendants argue that EMTALA does not apply at all to the instant case because Meredith was not “dumped” at CHOP. Meredith was transferred to CHOP on an emergency basis for purposes of a liver transplant. However, the plaintiffs’ allegation is not that Meredith was “dumped,” but that LVH was obligated under EMTALA to provide CHOP with a medical record for Meredith that accurately reflected the care she had received at LVH. Instead, the information provided to CHOP omitted the erroneous administration of Mucomyst. The plaintiffs argue that as a result of this omission, Meredith was suffering from a serious undisclosed condition when she was transferred to CHOP and that this made it more difficult for CHOP to treat her.

The plaintiffs rely on section 1395dd(c) of EMTALA, which governs the transfer of an unstable patient with an emergency medical condition. Such a transfer may only occur when (1) the patient, or her representative, requests a transfer in writing to another medical facility after being informed of the hospital’s obligations under EMTALA and the risks of transfer; and (2) a physician, or other qualified person, has certified that the medical benefits of the transfer outweigh the risks; and (3) the transfer is appropriate. An appropriate transfer to a medical facility is defined by the Act as a transfer

“(A) in which the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individual’s health and, in the case of a woman in labor, the health of the unborn child;
"(B) in which the receiving facility—
“(i) has available space and qualified personnel for the treatment of the individual, and
“(ii) has agreed to accept transfer of the individual and to provide appropriate medical treatment;
“(C) in which the transferring hospital sends to the receiving facility all medical records (or copies thereof), related to the emergency condition for which the individual has presented, available at the time of the transfer, including records related to the individual’s emergency medical condition, observations of signs or symptoms, preliminary diagnosis, treatment provided, results of any tests and the informed written consent or certification (or copy thereof) provided under paragraph (1)(A), and the name and address of any on-call physician (described in subsection (d)(1)(C) of this section) who has refused or failed to appear within a reasonable time to provide necessary stabilizing treatment;
“(D) in which the transfer is effected through qualified personnel and transportation equipment, as required including the use of necessary and medically appropriate life support measures during the transfer; and
“(E) which meets such other requirements as the secretary may find necessary in the interest of the health and safety of individuals transferred.”

Here, the complaint alleges in paragraphs 63, 64, 65, 66,67,68,71 and 72 that the Mucomyst mishap was not recorded in Meredith’s medical chart until February 17, 2004, two days after the event had occurred and after Meredith had already been transferred to CHOP. Thus, according to the complaint, the medical records provided to CHOP at the time of Meredith’s transfer were incomplete.

An incomplete medical record, however, is not in and of itself a violation of EMTALA. Under EMTALA, at section 1395dd(2)(C), a transferor hospital is required to provide to the transferee only the medical records that were “available at the time of the transfer.” The plaintiffs acknowledge in their complaint that the misadministration of Mucomyst was not recorded by the participants in any of Meredith’s medical records at the time of her transfer to CHOP. EMTALA does not contain a requirement that the medical records given to the transferee hospital accurately reflect all the medical treatment provided to the patient by the transferor hospital. The transferor hospital is only required to provide all medical records that are available at the time of the transfer. For this reason, the plaintiffs’ EMTALA claim must fail, and the allegations pertaining to this claim are stricken.

B. Motion To Strike (Demurrer) Regarding JCAHO Standards

The Joint Commission for Accreditation of Healthcare Organizations (JCAHO) is an organization that establishes standards for the quality of services provided by hospitals. The plaintiffs allege that the corporate defendants were negligent in failing to adhere to JCAHO standards in the care provided to Meredith. The corporate defendants dispute the relevance of JCAHO standards to medical malpractice actions. They point out that membership in JCAHO is voluntary, and that although LVH is a member, many hospitals are not.

No appellate court in Pennsylvania has addressed the issue whether JCAHO standards should be adopted as the standard of care for hospitals. The United States District Court for the Middle District of Pennsylvania in Wey v. Evangelica Community Hospital, 833 F. Supp. 453, 463 (M.D. Pa. 1993), considered the application of JCAFIO standards to a non-member hospital sued under EMTALA. The Wey court held that JCAHO standards had no application because JCAHO is a voluntary organization and the hospital-defendant was not a member. Our distinguished colleague, the Honorable Lawrence J. Brenner, followed Wey in rejecting the application of JCAHO standards in a medical malpractice action, but his footnoted order does not indicate whether the defendant hospital was a member of JCAHO. Houdershieldt v. St. Lukes Hospital, no. 2005-C-3318V (Lehigh Cty., March 8, 2006). A different view was expressed by the Supreme Court of Washington in Pedroza v. Bryant, 677 P.2d 166, 171 (1984), where the court stated in dicta that reference to JCAHO standards is a method to establish the standard of care applicable to a hospital.

In this case we are advised by counsel that LVH is a member of JCAHO. That being so, we believe that evidence of JCAHO standards may be relevant in determining the appropriate standard of care for LVH, just as the hospital’s internal policies are relevant. By affiliating with JCAHO, LVH may have voluntarily assumed an obligation to comply with JCAHO standards for the quality of services provided to patients. Without a factual record on this point we are unable to determine this issue. Thus, at this juncture we decline to strike the references to JCAHO from the complaint.

We hasten to add, though, that while the violation of a JCAHO standard may be relevant, it would not constitute negligence per se. The parties need not accept the JCAHO standards as the only standards of care against which the actions of LVH are to be measured. The parties are free to present other evidence with respect to the standard of care.

C. Motion To Strike (Demurrer) Plaintiffs’ Claims of Civil Conspiracy

For the reasons we set forth above, we believe the allegations in the complaint are insufficient to support a claim of civil conspiracy. Accordingly, the objection in the nature of a demurrer to the civil conspiracy claim in Count II is sustained.

D. Motion To Strike (Demurrer) Plaintiffs’ Claims for Negligent and Intentional Infliction of Emotional Distress

In Count I of the complaint the plaintiffs seek to recover for their emotional distress. The moving defendants seek the dismissal of this claim as a matter of law. For the reasons stated above, the demurrer to Count I must be sustained and this count dismissed.

E.Motion To Strike Claims for Punitive Damages

The moving defendants request that the plaintiffs’ claim for punitive damages be stricken. We decline to do so at this stage of the case for the reasons set forth above.

F.Motion To Strike Allegations of Negligence for Lack of Specificity

This motion is denied for the reasons stated above.

ORDER

Now, September 26, 2006, upon consideration of the preliminary objections of Brian D. Allen R.N. and/or B.D.A. R.N., Joseph Fassl M.D., William Sotack D.O., Lehigh Valley Physician Group, Lehigh Valley Hospital and Lehigh Valley Health Network, to plaintiffs’ second amended complaint, after review of the parties’ briefs and oral argument, and for the reasons set forth in the accompanying opinion, it is ordered as follows:

(1) The preliminary objection in the nature of a motion to strike (demurrer) with respect to claims for violation of EMTALA is sustained. All references to EMTALA and “dumping” are stricken from the second amended complaint.
(2) The preliminary objection in the nature of a motion to strike (demurrer) with respect to claims for violation of standards set forth by the Joint Commission for Accreditation of Health Care Organization is overruled.
(3) The preliminary objection in the nature of a motion to strike (demurrer) with respect to Count II for civil conspiracy is sustained. Count II is dismissed.
(4) The preliminary objection in the nature of a motion to strike (demurrer) with respect to claims of emotional distress in Count I and paragraphs 52, 93, 95 and 128 is sustained. Count I is dismissed and paragraphs 52,93,95 and 128 are stricken from the second amended complaint.
(5) The preliminary objection in the nature of a motion to strike impertinent language and claims for punitive damages contained in Count VII, the ad damnum clauses of Counts I, II, V, VI and VII, and paragraphs 51, 61, 64, 73, 90, 95, 101, 102, 128 and 129 is sustained in part and overruled in part. The objection is sustained as to Count VII, and Count VII is stricken from the second amended complaint. The objection is overruled as to the ad damnum clauses of Counts V and VI and paragraphs 51, 61, 64, 73, 90, 95, 101, 102, 128 and 129. The objection to the ad damnum clauses of Counts I and II is moot since these counts have been dismissed.
(6) The preliminary objection in the nature of a motion to strike paragraphs 15, 22, 62, 72, 91, 100, 123, 125(f), 125(g), 125(h), 125(i) and 125(j) for lack of specificity is overruled.

It is further ordered that plaintiffs shall file a third amended complaint consistent herewith within 20 days from the date of this order.

ORDER

Now, September 26, 2006, upon consideration of the preliminary objections of Sabrina Logan M.D. andKerrie Pinkney M.D. to plaintiffs’ second amended complaint, after review of the parties’ briefs and oral argument, and for the reasons set forth in the accompanying opinion, it is ordered as follows:

(1) The preliminary objection in the nature of a motion to strike the claim for loss of a child’s consortium is sustained. References to loss of the child’s companionship, relationship, society, comfort, guidance, solace or protection are stricken from paragraphs 96, 97 and 98.

(2) The preliminary objection in the nature of a motion to strike (demurrer) with respect to the claim for negligent and intentional infliction of emotional distress in Count I and paragraphs 52, 93, 95 and 128 is sustained. Count I of the second amended complaint is dismissed and paragraphs 52, 93, 95 and 128 are stricken.

(3) The preliminary objection in the nature of a motion to strike (demurrer) with respect to claims of civil conspiracy in Count II and paragraph 61 is sustained. Count II of the second amended complaint is dismissed and paragraph 61 is stricken.

(4) The preliminary objection in the nature of a motion to strike (demurrer) with respect to claims for punitive damages in Count VII and the ad damnum clauses of Counts I, II, V, VI and VII, is sustained in part and overruled in part. The objection is sustained as to Count VII, and Count VII is stricken from the second amended complaint. The objection is overruled as to any claims for punitive damages contained in the ad damnum clauses of Counts V and VI. The objection to the ad damnum clauses of Counts I and II is moot since these counts have been dismissed.

(5) The preliminary objection in the nature of a motion to strike (demurrer) with respect to allegations of reckless conduct and use of impertinent language in paragraphs 51, 61, 64, 73, 90, 95, 101, 102, 128 and 129 is overruled.

(6) The preliminary objection in the nature of a motion to strike for lack of specificity in paragraphs 62, 72, 91, 101,101(i), 101 (s) is overruled.

It is further ordered that plaintiffs shall file a third amended complaint consistent herewith within 20 days from the date of this order.

      .42 Pa.C.S. §8301.

      . 42 Pa.C.S. §8302.

      . All references to the “complaint” are to the second amended complaint.

      . See complaint, ¶¶96, 97 and 98.

      . Special damages. — In an action brought under subsection (a), the plaintiff shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death. 42 Pa.C.S. §8301(c).

      . Complaint ¶93.

      . Supra at 6.

      . Complaint, f!09B.

      . Complaint, ¶61.

      . Complaint, ¶9.

      .42U.S.C. §1395dd(c)( 1).

      . 42 U.S.C. §1395dd(2). (emphasis added)

      . Supra at 10.

      . Supra at 6, 7.

      . Supra at 12.

      . Supra at 13.


source: Caselaw Access Project

author: KLEINFELTER, J.,

license: Public Domain

text:
    Commonwealth v. McClucas

      Kristen Weisenberger, deputy district attorney, for Commonwealth.

      Roger Laguna, for defendant.
    September 27, 2006
   KLEINFELTER, J.,

In almost every case, an opinion written by a trial judge serves the purpose of advising the parties — and perhaps an appellate court — of the rationale under which a decision was rendered in the case. The opinion which follows, however, is intended for yet an additional purpose; namely, to alert the General Assembly to an insufferable provision in the Mental Health Procedures Act, 50 PS. §7101 et seq.; specifically, section 7402, “Incompetence to proceed on criminal charges and lack of criminal responsibility as a defense.” For reasons that will become obvious in this opinion, legislative action is necessary to amend certain anomalous language in this section.

On April 29,2005, Middletown Police arrested Michael E. McClucas (defendant) on charges of aggravated indecent assault, unlawful contact with minor and corruption of minors. The alleged victims are defendant’s stepdaughters, S.B., bom March 22, 1992, and R.B., bom January 25, 1994. The police allege that defendant engaged in digital penetration of the girls’ vaginas. When the acts occurred, defendant was 33 years of age and the girls were aged 10 and 11. The charges were held for court following a preliminary hearing on June 2, 2005. Defendant was formally arraigned on July 14, 2005, and a jury trial set for September 12, 2005. The record is less than clear as to the scheduling of defendant’s case for trial thereafter; however, we do find three documents captioned “Waiver of speedy trial and notice of trial date” in the file. The first is dated November 14, 2005, and sets a trial date of December 12,2005. The second is dated December 12,2005, and sets a trial date for January 9,2006. The third is dated February 24,2006, and set a trial date for May 8, 2006.

On March 20, 2006, defendant through his attorney, Roger E. Laguna, Esquire, filed a motion for determination of competency. The motion alleges:

“(1) While attempting to prepare for the trial in this case it became apparent that defendant was unable to assist counsel. According to defendant’s mother, he has a long history of mental infirmity/retardation and she is forced to act as his guardian.
“(2) Defendant attempted to ascertain the true extent/ nature of the infirmity/retardation by having defendant evaluated by a licensed clinical psychologist.
“(3) On March 17, 2006, the undersigned received a written response to the evaluation which is entitled Assessment of Adjudicative Competency Evaluation. In short, defendant has an I.Q. of 57, is mentally retarded, and is not competent to stand trial. The entire assessment is attached hereto as exhibit ‘A’.” [Not published herein.]

On March 28,2006, the district attorney filed an answer with new matter which concluded:

“(7) The Commonwealth is seeking to have the defendant evaluated by its own psychiatrist, and upon completion of said assessment, requesting a hearing to determine competency.”

On March 30,2006, we issued a rule to show cause as to why defendant should not submit himself to an independent psychological/psychiatric examination by an expert selected by the Commonwealth. On the same date, defendant responded to the Commonwealth’s new matter advising that the evaluation referenced in the original motion of March 20,2006, classified the defendant as “mild mental retardation” and concluded that defendant “does not possess the capacity for a factual understanding of the legal system and the process for adjudication, etc.” The evaluator, Louis B. Laguna Ph.D., further stated: “I do not feel [defendant] will ever meet the standards for adjudicative competency.” However, the response did aver: “(7) Defendant has no obj ection to a psychiatric examination.”

On April 10, 2006, defendant filed a response to our rule to show cause which included the averments in his March 30, 2006 response. Defendant’s second response further advised:

“(2) Presently, the Commonwealth seeks to have this court order a psychiatric examination of the defendant. Presumably, the Commonwealth is making this request pursuant to 50 P.S. §7402. However, section [7402(e)(3)], states that if such an examination is ordered that during the evaluation defendant ‘shall be entitled to have counsel present with him and shall not be required to answer any questions or to perform tests unless he has moved for or agreed to the examination.’
“(3) Defendant states that he has not moved for or agreed to the examination. On the contrary, the Commonwealth moves for the examination in an attempt to refute defendant’s uncontested evidence of incompetence.
“(4) In the event that an examination would be ordered, defendant’s counsel would apparently be obligated under the circumstance of the case to have defendant avail himself of his right to not answer questions or perform tests. No valid psychiatric examination could be conducted under such circumstances. As such, the psychiatric examination requested by the Commonwealth would obviously be invalid and therefore pointless.
“(5) Defendant has already provided the Commonwealth with defendant’s expert report. 50 P.S. §7404(b) states that the Commonwealth may call an expert to testify at a competency hearing (if the court grants a hearing) and that defendant may call his own expert(s) to testify. Defendant therefore acknowledges that a psychiatric expert may testify for the Commonwealth about said report at a competency hearing. At the same time, as a practical matter, a pre-hearing psychiatric examination cannot be permitted to be forced upon defendant.”

In consideration of the foregoing, on April 11,2006, we ordered that a hearing pursuant to 50 P.S. §7402(d) be set for May 2, 2006. At the May 2 hearing we defined the scope of the inquiry in accordance with the provisions of 50 P.S. §7402(d) hearing; when required, which provides:

“The court... may order an incompetency examination ... without a hearing unless the examination is objected to ... by his counsel. In such event, an examination shall be ordered only after determination upon a hearing that there is a prima facie question of incompetency....”

As we deemed an examination to be opposed by defendant (by virtue of his April 10, 2006 response), we directed defense counsel to present his prima facie evidence of incompetency. At this point the deputy district attorney suggested that, if the inquiry of the moment was limited to a prima facie showing of incompetency, it would stipulate to that fact, based on Dr. Laguna’s opinion contained in his report. Although we suggested to the deputy district attorney that she might have presented her own expert or engaged Dr. Laguna in cross-examination regarding his report, she was satisfied to stipulate that the report established a prima facie case. Given those circumstances, we dictated the following order:

“And now, May 2,2006, upon stipulation of the Commonwealth that the defense has made out a prima facie case of incompetency premised on a report filed by Louis B. Laguna Ph.D, undated, but relating to a competency examination on March 9, 2006, which opinion in pertinent part reads as follows:
“ ‘It is my professional opinion that Mr. McLucas [sic] does not possess the capacity for a factual understanding of the legal system and the processes of adjudication. This includes roles of defense and prosecuting attorney, elements of the offense, role of the jury, role of the judge, legal rights and consequences of conviction and pleading guilty.’
“The report further concludes ‘It is my professional opinion that Mr. McLucas [sic] does not adequately understand the criminal proceedings against him and does not have a factual and rational understanding of the criminal proceedings, or the capacity to assist in his defense. Given the pervasive nature of intellectual deficits, I do not feel he will ever meet standards for adjudicative competency.’
“The defendant having, therefore, met the prima facie requirement of incompetency under section 7402, the court orders that the defendant undergo a determination of competency, which determination shall be made on an outpatient basis. The court will designate a psychiatrist to conduct the examination.
“Defendant and counsel are advised that they have the right to be present at the time of the examination and need not answer any questions or perform any tests.
“We further note that nothing said or done by the defendant during the examination may be used as evidence against him in any criminal proceeding. A report shall be submitted by the appointed psychiatrist to the court and to counsel for the Commonwealth and the defendant, which report shall contain the description of the examination and any diagnosis reached as a consequence thereof.
“All references to competency in this order are to be considered under the definition of incompetency as found in section 7402 of title 50, subsection (a).
“By the court.
“/s/Kleinfelter, J.”

We then advised counsel that we would appoint a psychiatrist to conduct an evaluation in accordance with section 7402(e) conduct of examination; report. After some research we were able to retain the services of Robert L. Sadoff M.D., of Jenkintown, Pennsylvania. Our order appointing Dr. Sadoff directed that the incompetency examination should take place on June 5,2006, in the fifth floor conference room of the Dauphin County Court House. Dr. Sadoff’s report of the examination is dated June 6. The report advises that the defendant appeared along with his mother and Attorney Laguna. Laguna quickly informed Dr. Sadoff that he would pursue protection of his client’s rights under the Act and would not allow defendant to respond verbally to the doctor’s questions. Notwithstanding this advisoiy from counsel, Dr. Sadoff proceeded to ask defendant a battery of questions concerning his medical and social history, familiarity with the criminal justice system and related matters. Dr. Sadoff’s report advises: “It should be noted that Mr. McClucas sat silently during the questioning, and Mr. Laguna, his attorney, responded to each question, indicating that his client would not respond to the question.” (Sadoff report, 2.) Dr. Sadoff concludes his report by noting: “Because of Mr. McClucas’ unwillingness to respond to my question, I can give no diagnosis and no opinion about his current competency to stand trial.”

Upon receipt of Dr. Sadoff’s report, the court met with counsel in chambers to determine if the Commonwealth required any further hearing in this matter. Obviously frustrated by the inability to subj ect defendant to an independent forensic psychiatric examination, she declined to do so.

We are left, on the record, with the unchallenged, and unassailable, report of Dr. Laguna which we are constrained to accept at face value. We are likewise constrained to conclude that Defendant is incompetent to stand trial and that it is unlikely that he will ever gain such capacity. This brings us to our legislative discussion.

Our Supreme Court has viewed section 7402 of the Act as intended to guarantee to a defendant “an absolute and basic condition of a fair trial, and conviction of a legally incompetent defendant violates his constitutionally guaranteed due process rights.” Commonwealth v. Appel, 547 Pa. 171, 187, 689 A.2d 891, 898 (1997). The relevant inquiry “is whether the defendant has sufficient ability at the pertinent time to consult with counsel ‘with a reasonable degree of rational understanding,’ and have a ‘rational as well as factual understanding of the proceedings.’” Id. at 188, 689 A.2d at 899. (additional citations omitted) A defendant who asserts his incompetency bears the burden of proof by a fair preponderance of the evidence. Id at 189, 689 at 900.

Reading section 7402 in its entirety, it is clear that the General Assembly intended to create an adversarial process in determining the issue of competency. When a defendant asserts his incompetency but objects to an examination, the court is to conduct a hearing and, on finding a prima facie case, shall order a competency examination. Section 7402(d). Section 7402(f) provides for “a psychiatrist retained by the defendant and a psychiatrist retained by the Commonwealth to witness and participate in the examination.” (emphasis added)

But now here’s the glitch. Between subsections (d) and (f) is subsection (e) which in subparagraph (3) provides:

“The person shall be entitled to have counsel present with him and shall not be required to answer any questions or to perform tests unless he has moved for or agreed to the examination.”

In the case at bar, defendant had already objected to an independent examination — which fact triggered the prima facie hearing as per subsection (d). Defendant continued to object even as we appointed an independent psychiatrist and ordered his examination. Thus, the paradox; how, exactly, does one conduct a psychiatric exam of a mute subject?

While we have not researched the legislative history behind the inclusion of the above quoted language from subparagraph (3) of section 7402(e), it would appear that it is intended to serve as a safeguard of an accused’s Fifth Amendment right to remain silent. In fact, subparagraph (3) concludes with this sentence: “Nothing said or done by such person during the examination may be used as evidence against him in any criminal proceeding on any issue other than that of his mental condition.” It seems to this writer that the latter sentence adequately protects a defendant’s Fifth Amendment rights without the sentence that precedes it. But even if this sentence seems to be problematic for an accused, remember that counsel attending the examination may at any time assert the privilege as to any question relating to the underlying offense.

Moreover, it would seem obvious that the objective of all competence questioning would be unrelated to the allegations surrounding a particular charge. When one looks again at the line of questioning put to defendant by Dr. Sadoff during his attempted examination, one will find not a single question relating to the underlying charges. Additionally, the tests (IQ and Mac Arthur Competence Assessment) employed by Dr. Laguna, do not go into the facts of the case.

Finally, it would seem to us that one who asserts his own incompetency to stand trial necessarily waives any right he may have to be free from independent examination on that issue.

We recommend that the General Assembly consider legislation that would amend section 7402(e)(3) by deleting the words “and shall not be required to answer any questions or to perform tests unless he has moved for or agreed to examination.” Another alternative would be to amend the sentence to read: “and shall not be required to answer any questions that may tend to incriminate him."

Either of these alterations would eliminate the anomaly which has occurred in the case before us (and, we suspect, in any number of others) by allowing a meaningful competency examination, the results of which could then be tested and argued adversarily in a court of law.

In the meantime, we are constrained to enter the following:

ORDER

And now, September 27, 2006, upon consideration of defendant’s motion for determination of competency, the Commonwealth’s answer filed thereto, and “hearing” held thereon, it is hereby ordered that defendant Michael E. McClucas is found to be incompetent to stand trial under the definition of “incompetency” found in 50 RS. §7402(a) and, as we are unable to conclude with reasonable certainty that involuntary treatment will provide defendant with the capacity to stand trial, such treatment under section 7402(b) is declined.

      . In the interim, on January 10,2006, defendant filed a petition for pretrial hearing on question of child witness competency and request for psychiatric examination (of the child witnesses). The Commonwealth filed an answer in opposition on February 9,2006. The petition for a pretrial hearing was thereafter denied by this court on February 14,2006, with a notation that “competency of the child witnesses shall be determined by the trial judge.”

      . We learned at a subsequent hearing, that Dr. Laguna and Attorney Laguna are brothers.

      . This order vacated an interim order of April 6, entered before defendant’s April 10 response, which directed defendant to submit to a psychiatric evaluation.

      . Dr. Sadoff recommended appointment of a forensic psychologist to review the raw data that Dr. Laguna compiled through his testing of defendant on March 9, 2006. This suggestion overlooks the fact that such “raw data” would be protected by the privilege as defined in the Judicial Code, 42 Pa.C.S. §5944.

      . Compare, e.g., the right of a party to seek an independent physical or mental examination of a party in a civil suit. Pa.R.C.P. 4010.

      . This alternative language would seem to be superfluous given the final sentence in subparagraph three and given the fact that one’s Fifth Amendment rights exist independently of any language in the Act.


author: FARINA, P.J.,

text:
    Calderon v. Kauffman

      Brandon Swartz, for plaintiffs.

      Brigid Q. Alford, for defendant.
    August 7, 2007
   FARINA, P.J.,

The matter presently before this court is defendant Joann Kauffman’s motion for summary judgment. On February 1, 2005, plaintiff, Emilly Hernandez, suffered a neck injury when the vehicle she was driving was struck from the rear by a vehicle driven by defendant Joann Kauffman. Plaintiffs filed their complaint on October 31, 2005. Defendant filed her answer to complaint with new matter on December 21,2005. Plaintiffs filed their reply to new matter December 27, 2005. In the motion for summary judgment, defendant contends that Ms. Hernandez did not sustain injuries resulting in serious impairment of a body function. Accordingly, defendant argues that the election of limited-tort coverage in the automobile insurance policy precludes the recovery of non-economic losses on the basis of Ms. Hernandez’s injuries pursuant to section 1705(a)(1)(A) of the Motor Vehicle Financial Responsibility Law (MVFRL).

Summary judgment is proper when there is no genuine issue of material fact which could be established by additional discovery and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2(1); Donegal Mutual Insurance Co. v. Fackler, 835 A.2d 712, 715 (Pa. Super. 2003). Summary judgment is also proper where, after the completion of discovery, the “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 in which in a jury trial would require the issue to be submitted to a jury.” Pa.R.C.P. 1035.2(2). Parties seeking to avoid summary judgment are required to show, by depositions, answers to interrogatories, admissions or affidavits, that there is a genuine issue for trial and may not rely upon the averments contained in the pleadings. Washington Federal Savings & Loan Association v. Stein, 357 Pa. Super. 286, 289, 515 A.2d 980, 981 (1986). The court must examine the record in the light most favorable to the non-moving party and any doubt must be resolved against the moving party. Id.

Pursuant to the MVFRL, an individual who elects the limited-tort option is precluded from pursuing an action for any non-economic loss except where serious injury occurred. 75 Pa.C.S. § 1705(d). “Non-economic loss” is defined as “pain and suffering and other nonmonetary detriment.” Section 1702. “Serious injury” is defined as a “personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” Id.

In discussing the limited-tort option, the Pennsylvania Supreme Court in Washington v. Baxter, stated:

“Thus, while an insured who has elected the limited-tort option remains eligible to seek compensation for economic loss sustained in a motor vehicle accident caused by the negligence of another, the insured will be precluded from maintaining an action for any non-economic losses unless the insured can show that his injuries cross the ‘serious injury’ threshold.” 553 Pa. 434, 440, 719 A.2d 733, 736 (1998).
“The ‘serious impairment of body function’ threshold contains two inquiries: (a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident? (b) Was the impairment of the body function serious?” Id. at 448, 719 A.2d at 740. In evaluating whether a serious impairment has been established, the focus is not on the injuries but rather on the effect of the injury on a body function. Robinson v. Upole, 750 A.2d 339, 343 (Pa. Super. 2000). The question of whether a plaintiff has suffered a “serious injury” is a matter for the jury to determine unless reasonable minds could not differ on the issue. Kelly v. Ziolko, 734 A.2d 893, 898 (Pa. Super. 1999). Summary judgment on the basis that a serious injury did not occur should be granted only in the clearest cases. Washington, 553 Pa. at 447, 719 A.2d at 740.

Defendant contends that Ms. Hernandez is precluded from recovering in her claim for non-economic losses as the applicable automobile insurance policy is for limited-tort coverage and Ms. Hernandez did not sustain serious injuries such that a body function was seriously impaired. Plaintiff was treated in the emergency room at Lancaster Regional Medical Center on the day of the accident. She was diagnosed with sustaining cervical and thoracic sprain and strain. The plaintiff was then treated by her family physicians at Lancaster Regional Medical Center. At Lancaster Regional her physicians diagnosed her with exacerbating her pre-existing cervical degenerative disc disease. The plaintiff has been diagnosed as having persistent accident-related pain and felt the plaintiff “was not getting any better.” Plaintiff has also complained that because of the accident she: (1) was unable to drive for two months because of wearing a neck brace; (2) has difficulty breast-feeding because she cannot bend her neck downward; (3) cannot perform any activity that requires her head to be bent downward for a long period of time; and (4) cannot walk for long periods of time without pain. Additionally, plaintiff’s subsequent medical treatment consisted only of a few office visits to Cornerstone Family Flealth Associates and limited physical therapy at the Rehab Center, which lasted for two months. (PL Hernandez dep. at 40:11 -23.) The plaintiff has not produced any documents which establish that these injuries she sustained from the accident interfered substantially with her normal activities for any extended period of time. Plaintiff argues, as a young mother she has difficulty breast-feeding her child because of the injury. Further, plaintiff claims pain on virtually all aspects of her daily life. As such plaintiff feels that the injuries sustained in the accident rise to the level of serious body injury.

Defendant acknowledges that Ms. Hernandez may have experienced some level of pain, but there is no causal connection between her complaints and the accident. Defendant notes that Ms. Hernandez has a history of neck, back and ankle pain caused by a fall down a set of stairs that occurred nearly two years prior to the vehicle accident in question. (PL Hernandez dep. at 15:23-16:1.) As of July 7, 2005, plaintiff’s next-to-last physical therapy visit, she was assessed as to having a “good tolerance to exercise. No increased pain. Still has difficulty with stabilizing spine during stabilization exercise” and that her progress was per the treatment plan. Additionally, defendant contends that any potential injuries that plaintiff may have suffered did not affect her ability to carry a child to term without complication which is evidence that she did not suffer a serious impairment of a body function. (PL Hernandez dep. at 44:4-45:4.) Defendant argues that there is also no objective medical evidence to suggest that the plaintiff suffered a serious injury or serious impairment of a body function. The Washington court stated that “[gjenerally, medical testimony will be needed to establish the existence, extent and permanency of impairment.” Washington, 553 Pa. at 447, 719 A.2d at 740. Here, defendant argues that plaintiff’s medical documents fail to substantiate her claim, she has not produced an expert medical report and her treating physician opined that her injuries are “probably psychosomatic” in nature. (Def. br. supp. summ. j. at 21.) The evidence in the Washington case was described as follows:

“The evidence, when viewed in the light most favorable to appellant, shows that appellant was immediately treated in a hospital emergency room, where his injuries were diagnosed as consisting of contusions, sprains, and strains; he was discharged from the emergency room within a few hours. He missed four or five days of work at his full-time job, and missed approximately four of his weekly shifts at his part-time job. Approximately six months after the accident, one of appellant’s physicians stated that there appeared to be some type of joint arthritis or coalition in the right foot, and the appellant might need to utilize orthotic heel lifts; his physician also injected one shot of cortisone. Finally, at his deposition approximately one year after the accident, appellant indicated that although his foot caused him pain approximately every other week, he was still able to perform his work duties and, aside from having to utilize a riding mower, he was able to engage in his normal daily activities.” 553 Pa. 434, 448, 719 A.2d 733, 740-41 (1998).

In describing what is required to survive a summary judgment motion, the Washington court stated:

“The question to be answered is not whether appellant has adduced sufficient evidence to show that appellant suffered any injury; rather, the question is whether appellant has shown that he has suffered a serious injury such that a body function has been seriously impaired. Clearly, it is insufficient for appellant to show that there has been some injury — no matter how minor — in order to avoid the entry of summary judgment against him. Were we to fail to require appellant to adduce evidence that not only was there an injury, but that it was also serious, before allowing him to present his case to the jury, we would make a mockery out of the summary judgment standard.” Id. at 449, 719 A.2d at 741. (emphasis in original)

The Washington court then went on to determine that reasonable minds could not differ on whether the injury was serious and to find that the trial court properly granted partial summary judgment.

Plaintiff argues the case at bar is similar to Long v. Mejia, 896 A.2d 596 (Pa. Super. 2006). In Long, the plaintiff was injured when he was rear-ended by the defendant. Plaintiff injured his neck, back, left shoulder and wrist in the accident. Plaintiff also elected the limited-tort option and the trial judge determined that the plaintiff’s injuries did rise to the level of a serious impairment of body function. Defendant argues that the Long decision turned primarily on economic considerations not at all present in the instant case. In Long a construction worker sustained, among other minor injuries, a left wrist injury in a motor vehicle accident. The Superior Court noted that as a result of the wrist injury, the claimant could no longer control the tools he used in performance of his job, and that he had no other training to do any other work besides that of a laborer or construction worker. Id. In the instant case there is no evidence in the record at all that would permit a reasonable fact-finder to conclude that the pain reported by plaintiff has adversely affected her economically. There is no medical expert or exhibit that establishes any link between plaintiff’s unemployed status and her pain or discomfort. In fact, plaintiff, acknowledged at her deposition that there was nothing that she could do prior to the accident that she can no longer do. (PI. Hernandez dep. at 45.)

Considering the evidence in the light most favorable to the plaintiff, reasonable minds could not differ on whether Ms. Hernandez sustained a serious impairment of a body function. As such, summary judgment on Ms. Hernandez’s non-economic claim is appropriate in this matter. Summary judgment on the basis that the injured party did not sustain a serious injury should only be granted in the clearest of cases, this case falls into that category.

Accordingly, I enter the following:

ORDER

And now, August 7, 2007, upon consideration of defendant Joann Kauffman’s motion for summary judgment and the briefs of the parties, it is hereby ordered and decreed that defendant’s motion for summary judgment is granted and plaintiff Emilly Hernandez’s claim for non-economic loss is dismissed with prejudice.


author: GRINE, J,

text:
    Progress Grange #96 v. Centre County Board of Assessment Appeals

      LeDon Young, for appellant.

      Louis T. Glantz, for appellee.
    December 12, 2007
   GRINE, J,

Presently before the court is an appeal of a Centre County tax assessment brought by Progress Grange #96. Appellant requested that Centre County exempt from real estate taxation Progress Grange for tax parcel 34-003-027 (Grange Hall). Centre County Board of Assessment Appeals claims that appellant does not meet the standard for a tax-exempt organization. The parties agreed that this matter would be submitted to the court on a case-stated basis. The parties were ordered to file briefs within 60 days of the August 10,2007 conference. Both parties did so in a timely manner. This matter is ready for decision. The court grants the appeal, and reverses the decision of the Board of Assessment and finds that Progress Grange #96 qualifies for exemption from real estate taxes.

CONCLUSIONS OF LAW

(1) An entity qualifies as a “purely public charity,” entitled to tax-exempt status, if it “(a) advances a charitable purpose; (b) donates or renders gratuitously a substantial portion of its services; (c) benefits a substantial and indefinite class of persons who are legitimate subjects of charity; (d) relieves government of some of its burden; and (e) operates entirely free from private-profit motive.” Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 21-22, 487 A.2d 1306, 1317 (1985).

(2) 10 P.S. §375(c) “Private profit motive. — The institution must operate entirely free from private profit motive. Notwithstanding whether the institution’s revenues exceed its expenses, this criterion is satisfied if the institution meets all of the following:... (2) The institution applies or reserves all revenue, including contributions, in excess of expenses in furtherance of its charitable purpose or to funding of other institutions which meet the provisions of this subsection and subsection (b).”

(3) 10 P.S. §375(e)(5) — “An institution shall not be considered to benefit a substantial and indefinite class of persons who are legitimate subjects of charity if (i) the institution is not qualified under section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. §502(c)(3) and (ii) The institution is qualified under [the Internal Revenue Code] as any one of the following . . . (c) an agricultural or horticultural organization.” (emphasis added)

OPINION

An entity qualifies as a “purely public charity,” entitled to tax-exempt status, if it “(a) advances a charitable purpose; (b) donates or renders gratuitously a substantial portion of its services; (c) benefits a substantial and indefinite class of persons who are legitimate subjects of charity; (d) relieves government of some of its burden; and (e) operates entirely free from private-profit motive.” Hospital Utilization Project v. Commonwealth, 501 Pa. 1, 21-22, 487 A.2d 1306, 1317 (1985) (HUP). An organization is required to meet all of the requirements of this test in order to be considered a purely public charity. Appellant meets every part of this test, and thus should be determined to be a purely public charity.

Appellant advances a charitable purpose by providing the use of its hall for several charitable and community organizations and by raising money to donate to several charitable organizations. Additionally, appellant donates its services to organizations, such as the boy scouts, allowing them to use the Grange Hall rent free. Appellant donates money to the Red Cross and other organizations who are both legitimate recipients of charity as well as charities who relieve the government of some of its burdens. Finally, appellant operates free from any private-profit motive. None of the officers are compensated for their work, and the upkeep of the Grange Hall itself is done on a volunteer basis. All the money that the Grange Hall raises that is not used for charitable purposes goes towards the upkeep of the property.

Appellee also claims that appellant has a private-profit motive. However, the court is unclear what basis is used to make this allegation. Even the statute which the appellee attached to its brief stated the following: “Private profit motive. — The institution must operate entirely free from private profit motive. Notwithstanding whether the institution’s revenues exceed its expenses, this criterion is satisfied if the institution meets all of the following:... (2) The institution applies or reserves all revenue, including contributions, in excess of expenses in furtherance of its charitable purpose or to funding of other institutions which meet the provisions of this subsection and subsection (b).” 10 P.S. §375(c).

Appellant has shown that all of the monies taken in are either used for the upkeep of the building, used to buy things which are donated to a charity, or donated to a charity. If the appellee believes that the use of this money for building upkeep translates into a private-profit motive, it should be noted that since the building itself is in essence donated to the organizations which are allowed to use it, then the monies used for building upkeep are essentially donated to those organizations. Therefore this court can find no basis for the appellee’s argument that appellant is operating with some sort of private-profit motive.

While the appellee is correct in stating that appellant is not a 501(c)(3) charity, it is obvious that appellant is a purely public charity under the HUP test. Appellee argues that since appellant is not a 501(c)(3) charity it must meet an additional burden. According to 10 P.S. §375(e)(5) “An institution shall not be considered to benefit a substantial and indefinite class of persons who are legitimate subjects of charity if (i) the institution is not qualified under section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. §502(c)(3) and (ii) The institution is qualified under [the Internal Revenue Code] as any one of the following . . . (c) an agricultural or horticultural organization.” (emphasis added) The appellee argues that, as an agricultural or horticultural organization, appellant is not eligible for tax exemption. However, appellant has shown that although they do advance agricultural ideals, they are essentially a charitable organization. Therefore this court finds that Progress Grange #96 is eligible for tax-exempt status, and shall be granted tax-exempt status.

ORDER

And now, December 12, 2007, after a hearing on the matter and a review of the parties’ briefs, Progress Grange #96’s appeal from the decision of the Centre County Board of Assessment is granted. The court finds that Progress Grange #96 is a purely public charity, and as such is tax exempt.


author: MILLER, J,

text:
    Stroud Township Sewer Authority v. Leondi

      Bernard M. Billick, for plaintiff.

      James V. Fareri, for defendant.
    July 17, 2007
   MILLER, J,

On February 11, 2005, the Stroud Township Municipal Authority filed a municipal lien against the defendants for property they own at 55 Bridge Street in Stroud Township, Monroe County, Pennsylvania. The lien involves unpaid sewer charges stemming from alleged illegal connections by the defendants to the Stroud Township sewer line. On February 14, 2005, a writ of scire facias issued against the defendants. They filed an affidavit of defense on March 15, 2005. The defendants now wish to amend their affidavit of defense to raise the statute of limitations pursuant to 53 P.S. §7143. Another judge of this court issued a rule to show cause to which the Authority filed an answer. This matter came before this court for oral argument on July 2, 2007. Both parties have filed briefs, and after independent research by the court, we deny the defendants’ request to file an amended affidavit of defense for the following reasons.

Section 7143 of the Municipalities Planning Code allows claims for taxes, water rents or rates, lighting rates, power rates and sewer rates and provides that these claims must be filed in the court of common pleas of the county in which the property is situated on or before the last day of the third calendar year after that in which the taxes or rates are first payable, and other municipal claims must be filed in said court of common pleas within six months from the time the work was done in front of the particular property, where the charge against the property is assessed or made at the time the work is authorized or within six months after the completion of the improvement, where the assessment is made by the municipality upon all the properties after the completion of the improvement and within six months after confirmation by the court where confirmation is required. The statute goes on to provide other methods of filing and gives direction to the municipality for further proceedings.

The defendants allege in their affidavit of defense that the township, by filing the lien in 2005, was dilatory and was aware of the sewer connections long before then. In their brief, they also argue that amendments to pleadings should be liberally granted.

The borough raises, in its answer to the rule to show cause, that section 7143 of the General Municipal Law does provide this limitation. However, they point us to section 7432 of the same General Municipal Law passed in 1959 and amended in 1963 which they argue is a validation statute that removed all time limitations on the filing of municipal claims. 53 P.S. §7332.

In the case of Upper Gwynedd Township Authority v. Roth, 113 Pa. Commw. 239, 243, 536 A.2d 875, 877 (1988) the township sewer authority filed a municipal claim for sewer charges against a property in the township some nine years after construction of the sewer project was completed. The Montgomery County Common Pleas Court found the sewer assessments valid and proper and the property owner appealed. Our Commonwealth Court in interpreting 53 P.S. §7432, found that the municipality may file a claim at any time. The pertinent part of the statute, the court found, is:

“Whenever, heretofore or hereafter, any ... township ... or municipality authority has failed to file . . . any municipal claim assessed against any property within the time limit required by law for such filing, whereby the lien of such... municipal claim is lost;... then, in any such case heretofore or hereafter occurring, any such... township ... or municipality authority may, at any time after the effective date of this act, file such... municipal claim ....” (emphasis in original)

The court held that it is well settled that this section removes all time limitations on the filing of municipal claims citing Sanft v. Borough of West Grove, 63 Pa. Commw. 366, 437 A.2d 1332 (1981) and Chartiers Valley School District v. Virginia Mansions Apartments Inc., 340 Pa. Super. 285, 489 A.2d 1381 (1985).

Thus, we have before us the question of whether or not we should allow an amendment to the affidavit of defense which is clearly not a defense. While the Rules of Civil Procedure and case law do provide that courts should allow amendments liberally, we do not feel it is in the interest of this case or judicial economy in general to allow an amendment where the defense being added is moot. Accordingly, we enter the following order.

ORDER

And now, July 17,2007, defendants’ motion for leave to file an amended affidavit of defense is denied.


text:
    Eastland Communities Inc. v. Northeast Valley LLC

      Stacey L. Morgan and Jeffrey P Ouellet, for plaintiff.

      Shawn M. Long and Julie S. Lee, for defendant.
    November 6, 2007
   FARINA, P.J.,

The matter presently before this court is defendant’s petition to strike or open confessed judgment. In February 2005, plaintiff, Eastland Communities Inc. conveyed real property to defendant, Northeast Valley LLC pursuant to the terms of an agreement of sale. Under the agreement, defendant acquired the property in exchange for $750,000 in which $200,000 was paid at closing. The remaining $550,000 balance was reflected in a mortgage note and secured by a mortgage on the property. Pursuant to the terms of the note, defendant was required to pay the principal amount of $550,000, without interest, on or before February 2007, failing which, subject to the notice provisions set forth in the note, plaintiff was entitled to confess judgment.

Prior to defendant’s acquisition of the property, plaintiff developed an adjacent parcel for residential use. Defendant purchased the property with the intent to have this area rezoned for commercial use. After the agreement was executed, but before the closing, defendant filed a rezoning petition with Ephrata Township Supervisors. Additionally, prior to execution of the agreement, plaintiff was informed by PennDOT that certain modifications to an intersection on the property known as the “Boyer issue” needed to be resolved. The rezoning petition was approved in May 2006. Currently, the Boyer intersection modification issues have not been resolved. Defendant claims that the Boyer issue is pivotal to obtaining approval by Ephrata Township for its modification of a final development plan and securing financing for payment of the note.

On March 26,2007, due to defendant’s failure to pay, plaintiff filed a confession of judgment and complaint in confession of judgment in the amount of $555,000 ($550,000 principal + $5,000 as attorney’s commission). Defendant was served with notice of judgment and execution on April 6,2007. On May 7,2007 defendant filed its petition to strike or open confessed judgment; plaintiff responded and the parties engaged in a 45-day discovery period.

Defendant petitioned to strike the confessed judgment based on the attorney’s commission requested by the plaintiff. Any “challenge^] to the accuracy of the amounts allegedly due under [a warranty of attorney]... should be resolved in a petition to open unless it is evident from the face of the instrument that the amount is grossly excessive or not authorized by the warrant to confess judgment.” Germantown Savings Bank v. Talacki, 441 Pa. Super. 513, 525, 657 A.2d 1285, 1291 (1995). In the present case, the note authorizes a reasonable attorney’s commission. Plaintiff’s confession of judgment and complaint requested $5,000 as attorney’s commission, authorized by the warrant. This amount is reasonable in light of being less than 1 percent of the principal amount due on the note. See id. (Superior Court held that attorney’s fees, authorized by the warrant, which were 5 percent of the principal were reasonable.) It is evident from the face of the note that an attorney’s commission is authorized, without defects, and the amount requested is reasonable. Accordingly, the confessed judgment will not be stricken.

In seeking to open confessed judgment, defendant raises as a defense plaintiff’s alleged failure to cooperate with the defendant in securing rezoning of the acquired property and obtaining a modification of the final development plan. For this defense defendant relies upon a written addendum to the parties’ agreement that provided:

“[Plaintiff] acknowledges that [defendant] intends to request Ephrata Township to rezone the [P]roperty and to modify the final plan as it relates solely to the [Property. [Plaintiff] shall cooperate (including without limitation the timely execution and delivery of documents without cost to [defendant] as reasonably necessary in [defendant’s applications) and shall not object to the applications for a rezoning of the [Pjroperty, subject to the declaration, as amended.”

Defendant contends plaintiff’s failure to cooperate has caused a 17-month delay in securing rezoning. Additionally, defendant argues that until plaintiff resolves the Boyer issue Ephrata Township will not approve modification of the final development plan.

Defendant has raised a meritorious defense to plaintiff’s complaint, the resolution of which requires submission of evidence to a jury. Accordingly, defendant has met the standard for opening a confessed judgment and the judgment will be opened.

Accordingly, I enter the following:

ORDER

And now November 6, 2007, upon consideration of defendant Northeast Valley LLC’s petition to strike or open confessed judgment and the briefs of the parties, it is hereby ordered and decreed that defendant’s petition to strike is denied and defendant’s petition to open confessed judgment is granted.

      . “Upon the undersigned’s default which is not cured after notice as provided above, the undersigned hereby irrevocably authorizes and empowers any attorney of any court of record of Pennsylvania or elsewhere at any time to appear for and to confess judgment against the undersigned, for the unpaid debt, with costs and a reasonable attorney’s commission for collection added, and waives and releases all errors and all relief from any and all present and future stay or exemption laws.”

      . “A motion to strike may not be granted ‘if the defect is one that can be remedied by an amendment of the record or other action.’” Atlantic National Trust LLC v. Stivala Investments Inc., 922 A.2d 919, 923 (Pa. Super. 2007).

      . Opening a confessed judgment involves equitable principles in which the petitioner must aver a meritorious defense. Homart Development Co. v. Sgrenci, 443 Pa. Super. 538, 549, 662 A.2d 1092, 1097 (1995); First Pennsylvania Bank N.A. v. Lehr, 293 Pa. Super. 189, 192, 438 A.2d 600, 602 (1980). In determining whether the petitioner presented a meritorious defense the petition requires clear, direct, precise and believable evidence. See Stahl Oil Co. Inc. v. Helsel, 860 A.2d 508 (Pa. Super. 2004). Finally, a confessed judgment shall be opened if a “petitioner seeking relief therefrom produces [such] evidence which in a jury trial would require issues to be submitted to a juiy.” Greenwood v. Kadoich, 239 Pa. Super. 372, 375, 357 A.2d 604, 606 (1976).