author: BLACK, J.,

text:
    Nationwide Mutual Insurance Co. v. Lehigh and Northampton Transportation Authority

      Edward J. McCarski, for plaintiff.

      Richard L. Orwig, for defendant LANTA.

      Jeffrey D. Stocker, for defendants Brickhouse.
    June 5, 2003
   BLACK, J.,

This declaratory judgment action is before the court on the cross-motions for summary judgment filed by the plaintiff, Nationwide Mutual Insurance Company, and by one of the defendants, Lehigh and Northampton Transportation Authority (LANTA). The issue raised by the cross-motions is whether the governmental immunity afforded local agencies under 42 Pa.C.S. §8541 shields a local agency from liability for first-party benefits under the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1700 et seq.

For the reasons that follow, we find that the statutory grant of governmental immunity does bar claims under the MVFRL, unless the claim falls within one of the statutory exceptions in 42 Pa.C.S. §8542. In this case none of the enumerated exceptions applies. Therefore, LANTA is immune from liability on the claims at issue, and its motion for summary judgment must be granted. For the same reasons the summary judgment motion filed by Nationwide must be denied.

FACTUAL AND PROCEDURAL BACKGROUND

On April 17, 2001, defendants Keon L. Brickhouse, a minor, and his mother, Wanda D. Brickhouse, were passengers on a bus owned and operated by LANTA. The bus was stopped at the intersection of Hamilton Boulevard and 22nd Street in Allentown, Lehigh County, Pennsylvania, and the driver was assisting a handicapped person board the bus when a vehicle driven by the defendant Theodore Yaniclc struck the bus from the rear. The Brickhouses sustained personal injuries as a result of the collision. At the time of the collision, Yanick carried an automobile insurance policy with Nationwide. Neither Keon nor Wanda Brickhouse owned a vehicle or was insured under an automobile insurance policy.

The Brickhouses initially submitted a claim to LANTA for first-party benefits under section 1713(a)(3) of the MVFRL as a result of injuries they sustained in the accident. LANTA denied any responsibility for first-party benefits. The Brickhouses then submitted an application for such benefits to Nationwide, which responded by commencing this action for declaratory relief. Nationwide seeks a judicial determination that LANTA, rather than Nationwide, is responsible to the Brickhouses for the payment of first-party benefits.

Oral argument was held on the cross-motions of Nationwide and LANTA for summary judgment on May 21, 2003. Counsel for the Brickhouses appeared at the argument but took no position as to whether Nationwide or LANTA should prevail.

DISCUSSION

The facts of this case are not in dispute. Hence the case is appropriate for summary judgment. Nationwide and LANTA both agree that LANTA, which was organized under the Municipality Authorities Act, 53 P.S. §5607(a), is a local agency for immunity purposes. See Gloffke v. Robinson, 812 A.2d 728, 732 (Pa. Commw. 2002). Nationwide and LANTA also agree that as a local agency, LANTA is immune from liability for personal injury and property damage claims unless the claim falls within one of the exceptions to immunity specified in 42 Pa.C.S. §8542. Finally, Nationwide and LANTA also agree that the Brickhouse claims do not fall under the vehicle liability exception to immunity in 42 Pa.C.S. §8542(b)(1) because the LANTA bus was stopped at the time of the incident and thus not in “operation” within the meaning of the vehicle liability exception. See Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988) (governmental immunity barred recovery when elderly woman fell while alighting from a stationary city-owned van); see also, Rubenstein v. SEPTA, 668 A.2d 283, 286 (Pa. Commw. 1995) (“aregular stop on the vehicle’s route does not constitute operation of the motor vehicle”).

Therefore, the only issue before the court is whether claims for first-party benefits under the MVFRL override the statutory grant of governmental immunity to local agencies. LANTA maintains in its motion that the grant of governmental immunity controls and therefore that the Brickhouses are barred from maintaining a suit against it for first-party benefits under the MVFRL. Nationwide’s position is just the opposite: Nationwide maintains that the defense of governmental immunity does not apply to such benefit claims. For the reasons that follow, we find that the defense of governmental immunity does apply and therefore grant summary judgment in favor of LANTA.

The governmental immunity of local agencies is established by statute in 42 Pa.C.S. §§8541 to 8564, historically referred to as the Political Subdivision Tort Claims Act. Section 8541 provides a general grant of immunity as follows:

“Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.”

The exceptions to this statutory grant of immunity are set forth in section 8542. Subsection 8542(a) imposes Lability where (1) liability would otherwise be imposed under common law or by statute in the absence of immunity, (2) “[t]he injury was caused by the negligent acts of the local agency or an employee thereof . . .”, and (3) the incident falls within one of the enumerated categories of exceptions in subsection 8542(b). One of the enumerated categories, referred to as the vehicle liability exception, precludes the assertion of immunity for liability incurred in “[t]he operation of any motor vehicle in the possession or control of the local agency____” In this case, as noted above, the parties are in agreement that neither the vehicle liability exception nor any of the other enumerated exceptions to immunity applies. Furthermore, there is no allegation of negligence on the part of LANTA, so that one of the basic conditions for liability under section 8542(a) has not been met.

The MVFRL provides for the mandatory payment of certain benefits to persons injured in motor vehicle accidents, regardless of fault. These benefits include medical benefits, income loss benefits, accidental death benefits and funeral benefits. The benefits are to be paid by the injured party’s motor vehicle insurance carrier or by a policy under which he is insured. If the injured party is uninsured, then these first-party benefits are to be paid from the insurance policy on the motor vehicle occupied by such party; or if he is a non-occupant, by the insurance policy covering any vehicle involved in the accident. The MVFRL does not address questions of governmental immunity.

In Gielarowski v. Port Authority of Allegheny County, 159 Pa. Commw. 214, 632 A.2d 1054 (1993) (en banc), the Commonwealth Court dealt with the interplay between the MVFRL and the immunity statutes. The plaintiff in Gielarowski sought benefits under the MVFRL for injuries he had sustained while exiting a bus owned by the Port Authority, a Commonwealth agency. Because the bus was stationary when the injury occurred, the court held that the plaintiff had failed to show that his injury resulted from the “operation” of a motor vehicle. Therefore, because his claim did not fall within the vehicle liability exception to sovereign immunity, the Port Authority was immune from liability to the plaintiff for first-party benefits under the MVFRL. The court reasoned that the MVFRL and the immunity statutes were to be construed together and held that: a motor vehicle insurance claim against a government agency must satisfy the requirements of the immunity statutes in order for the injured party to recover. This includes the requirement that the injury must fall within one of the applicable immunity exceptions.” Gielarowski, supra at 217, 632 A.2d at 1056.

We find Gielarowski to be controlling precedent in the instant case. The defendant in Gielarowski was deemed to be a Commonwealth agency, rather than a local agency, and therefore was protected by sovereign immunity under 42 Pa.C.S. §§8521-8528, rather than governmental immunity under 42 Pa.C.S. §§854-64. However, the court noted that “there is no relevant distinction between the statutes [pertaining to governmental immunity and sovereign immunity] for the purpose of our analysis.” Gielarowski, supra at 217 n.4, 632 A.2d at 1058 n.4.

Nationwide contends that liability under the MVFRL is based on contract, rather than tort, and therefore that the statutory immunity provisions should not apply. This is the same argument made by Judge McGinley in her dissent in Gielarowski. The argument was rejected by a majority of the en banc court, and we do not find it convincing. Liability under the MVFRL is imposed by statute, not by contract. This statutory liability is clearly within the scope of the immunity statutes such as section 8541, which provides immunity to local agencies “for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof. . . .” (emphasis added) This governmental immunity is not limited to negligence claims. The statutory language is quite broad and encompasses all damage claims for injury to person or property, subject only to the exceptions in section 8542. Nationwide and LANTA have agreed that none of the exceptions enumerated in subsection 8542(b), including the vehicle liability exception, is applicable to the Brickhouses’ claims.

Moreover, and of special significance, the enumerated exceptions to immunity can apply only if the conditions of subsection 8542(a) are first met, including the condition that “[t]he injury was caused by the negligent acts of the local agency or an employee thereof.” Therefore, if liability is asserted against a local agency for non-negligent conduct, as here, the defense of governmental immunity clearly bars recovery. If the local agency assumes liability by contract, this would constitute a waiver of immunity. But Nationwide has not pointed to any such contractual waiver by LANTA in this case.

Nationwide also argues that Gielarowski was overruled by two later panel decisions of the Commonwealth Court in Adeyward-I v. Pennsylvania Financial Responsibility Assigned Claims Plan, 167 Pa. Commw. 450, 648 A.2d 589 (1994) and SEPTA v. Dunham, 668 A.2d 272 (Pa. Commw. 1995). Both of these cases were decided by three-judge panels of the Commonwealth Court. Therefore, they could not possibly have overruled the en banc decision in Gielarowski. See Commonwealth v. Ross, 763 A.2d 853, 856 (Pa. Super. 2000). In actuality, both of these cases were decided on other grounds, and in Dun-ham the three-judge panel quoted with approval that portion of the majority opinion in Gielarowski upholding the applicability of the immunity statutes to MVFRL claims.

In Adeyward, in a two-paragraph opinion by Judge Colins, the Commonwealth Court affirmed a decision by the Philadelphia County Court of Common Pleas finding SEPTA responsible for first-party benefits under the MVFRL. The claimant had been injured by a hit-and-run driver while crossing a street to transfer from one SEPTA bus to another SEPTA bus. Both courts held SEPTA, a Commonwealth agency, liable for first-party benefits under the MVFRL on the theory that the claimant was an “occupant” of the bus because he was “vehicle oriented” rather than “sidewalk oriented.” However, neither the Commonwealth Court nor the court of common pleas addressed the immunity issue at all. For reasons that are not disclosed in either opinion, the issue of SEPTA’s sovereign immunity was never raised and the Gielarowski decision was never mentioned. Since Judge Colins authored the 1994 panel decision in Adeyward and had just the year before authored the majority opinion for the en banc court in Gielarowski, it is inconceivable that the Adeyward panel intended to overrule Gielarowski sub silentio.

In Dunham summary judgment was granted in favor of SEPTA on Dunham’s claim for first-party benefits on the ground that the claimant was not an “occupant” of the bus at the time of his injury and hence was not entitled to benefits under the MVFRL. The decision was not based on sovereign immunity, but the court did not reject the sovereign immunity defense either. To the contrary, the court, again through Judge Colins, quoted from Gielarowski as follows:

“[A] motor vehicle insurance claim against a government agency must satisfy the requirements of the immunity statutes in order for the injured party to recover. This includes the requirement that the injury must fall within one of the applicable immunity exceptions....

“We conclude that under the case law cited above, the accident which occurred here must fall within an exception to sovereign immunity in order for Gielarowski to recover.” Dunham, supra at 274, quoting Gielarowski, supra at 218, 632 A.2d at 1056-57. Far from disowning

Gielarowski, the three-judge panel in Dunham quoted approvingly from the majority opinion in that case.

For these reasons, we find that Gielarowski is the controlling precedent for this case. Although Gielarowski deals with the sovereign immunity of Commonwealth agencies and the movant LANTA is a local agency, the immunity schemes are similar. The same reasoning that Gielarowski employed with respect to sovereign immunity applies with equal force to the related doctrine of government immunity of local agencies. Therefore, we find that LANTA is not liable to the Brickhouses for their first-party MVFRL claim.

CONCLUSION

For all of the above-stated reasons, Nationwide’s motion for summary judgment must be denied. LANTA’s motion for summary judgment is granted.

ORDER

Now, June 5, 2003, upon consideration of the cross-motions for summary judgment by the plaintiff Nationwide Mutual Insurance Company and the defendant Lehigh and Northampton Transportation Authority, 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 plaintiff’s motion for summary judgment is denied.

(2) The defendant’s motion for summary judgment is granted and judgment is hereby entered in favor of LANTA against all parties.

      . Specifically, the Brickhouses submitted a claim under 75 Pa.C.S. §1713(a)(3), which provides:
      “(a) General rule. — Except as provided in section 1714 (relating to ineligible claimants), a person who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first-party benefits against applicable insurance coverage in the following order of priority:...
      “(3) For the occupants of an insured motor vehicle, the policy on that motor vehicle.”

      . 42 Pa.C.S. §8542(b) provides:
      “Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
      “(1) Vehicle liability. — The operation of any motor vehicle in the possession or control of the local agency . .. .”

      . 42 Pa.C.S. §8541.

      . 42 Pa.C.S. §8542.

      . 42 Pa.C.S. §8542(a)(2).

      . 42 Pa.C.S. §8542(b)(1).

      . 75 Pa.C.S. § 1713(a)(3), (4).

      . 42 Pa.C.S. §8542(a)(2).

      . Adeyward v. SEPTA, 26 Phila. 382 (1993).


source: Caselaw Access Project

author:
FEUD ALE, S.J.,
     /s/G. David Pollick G. David Pollick President cc: Chief Richard Miller Mr. Al Yingst
      Mr. Greg Slanson Dr. Robert Hamilton /s/G. David Pollick G. David Pollick President cc: Dr. Robert Hamilton /s/G. David Pollick G. David Pollick President cc: Dr. Robert Hamilton Mr. Al Yingst Chief Richard Miller

license: Public Domain

text:
    Jarboe v. Lebanon Valley College

      C.P. of Lebanon County,
    no. 2002-00202.

      Carl J. Jarboe and Abigail E. Jarboe, pro se.

      Elizabeth F. Walker, for defendants.
    October 15, 2003
   FEUD ALE, S.J.,

Before the court are preliminary objections filed on behalf of Lebanon Valley College, its president, David Pollick, and other employees, to a fifth amended complaint filed by pro se plaintiffs, Dr. Carl Jarboe and his wife, Abigail. The complaint sets forth counts of breach of contract, defamation, a request for declaratory judgment, allegations of denial or interference with basic human rights as to various First Amendment and related issues, and a request for temporary and permanent injunctive relief.

While the complaint is somewhat inartfully pled, it appears that Dr. Carl Jarboe, who gradúated from Lebanon Valley College in 1961, along with his wife, are being denied access to the campus of the college. Additionally, Dr. Jarboe’s “alumni status” has been allegedly terminated, or at least all mailings relevant thereto have been discontinued. While the genesis of these actions is somewhat unclear, plaintiffs, who this court, due to its prior involvement with the plaintiffs in several other pro se lawsuits (i.e., involving a local judge, and lawyer) would describe as gadflys, have, depending on one’s point of view, unorthodox views on political and religious issues.

In any event, the basis for this lawsuit are letters from President Pollick dated May 2,2000, April 20,2001 and April 23, 2001 which provide as follows:

(1) May 2, 2000

Mr. Carl Jarboe

416 Maple Street

Lebanon, PA 17046

Mr. Jarboe:

It is fundamental to the nature of a college community and its mission that there be an open and civil exchange of ideas. This is a principle that allows no compromise. Ideas that we may disagree with are allowed within the library in order to test their strength and reveal their flaws. As such, a college permits a wide range of materials to be available to students for their consideration and analysis. Further, in the course of examining ideas, inside and outside of the classroom, students and faculty must be permitted the comfort and security provided by the basic rules of civility. Persons are never to be confronted or demeaned for positions they hold. And since students bóth live and study within a college community, they must feel free to move throughout the campus without fear of being verbally accosted for their ideas.

You have shown on a number of occasions that you do not share these fundamental principles of the college. On numerous occasions you have removed stacks of published documents from our Student Center without permission. By so doing, you are attempting to thwart the free exchange of ideas. You have been known to confront students on our campus outside of any structured or formal educational program regarding their personal opinions. By so doing, you have violated the rules of civility that guide the college.

For these reasons, you are no longer permitted on the campus of Lebanon Valley College. If you are found on campus, campus security will escort you from the premises and a report of trespass will be registered with the local police.

Respectfully,

/s/G. David Pollick

G. David Pollick

President

cc: Chief Richard Miller

Mr. Al Yingst

Mr. Greg Slanson

Dr. Robert Hamilton

(2) April 20, 2001

Ms. Abigail Jarboe

416 Maple Street

Lebanon, PA 17042

Dear Ms. Jarboe:

I am in receipt of your letter of April 19, 2001.

I cannot grant your request to use Lebanon Valley College’s facilities for the purposes of conducting Bible study. As you know, the college has a full-time chaplain who conducts religious services for our community and provides a wide range of additional services to assist our students and staff with their spiritual needs.

While I appreciate your concern for your husband, I have already conducted the college’s business with him directly and will continue to do so, whenever it is appropriate.

Regarding your allegation that you have been harassed on our campus, the security account of the encounter is quite to the contrary. Conversation is not harassment, particularly when it is directed to a person who is on our campus without clear and identifiable business. And your understanding of the nature of public access to a private campus is not complete. Persons are welcome to attend events that are announced as open to the public, as long as they abide by the rules of civility and conduct that govern each event. We do not permit persons to simply roam around our campus, going in and out of buildings, without any identifiable purpose. You have no right to do this. And, as you know, we do not permit persons to obstruct our educational mission through direct conduct with our students or by removing published materials in order to prevent others from assessing opinions you do not share. If these behaviors were to continue, it would be necessary for the college to take the appropriate action. And on a single point we are strongly in agreement, I will continue to insist that our security conduct themselves professionally and responsibly, as they have done in all of their dealings with you.

Respectfully,

/s/G. David Pollick

G. David Pollick

President

cc: Dr. Robert Hamilton

(3) April 23, 2001

Ms. Abigail Jarboe

416 Maple Street

Lebanon, PA 17042

Ms. Jarboe:

It has become quite clear that your discomfort with the mission of Lebanon Valley College as an institution of higher education is causing you a great amount of stress and discomfort. Your conduct with the guests and students of our campus has become increasingly detrimental to our ability to conduct our business in a reasonable and civil manner. You are, therefore, no longer welcome on the campus of Lebanon Valley College. Should you be found on the premises, campus security has been informed to escort you from our property. Should you resist and/or persist in trespassing, the matter will be turned over to the local police.

Respectfully,

/s/G. David Pollick

G. David Pollick

President

cc: Dr. Robert Hamilton

Mr. Al Yingst

Chief Richard Miller

In any event, subsequent to one or more of the aforesaid letters, Dr. and Mrs. Jarboe filed the present cause of action with the fifth amended complaint being dated on May 12, 2003. Argument on the preliminary objections was held on August 19, 2003.

As indicated in defendant’s brief, there appears to be no Pennsylvania cases to date on the issue of standing of an alumnus to sue their alma mater for its current policies. However, defendant did cite cases from New York and Connecticut which found that in the absence of any other factors upon graduation, one may no longer look to one’s alma mater for other than such things as a transcript of grades as needed. As the court stated in the case of Steeneck v. University of Bridgeport, 1994 Conn. Super. Ct.:

“The issue of whether alumni have standing to challenge the actions of their alma mater has not been addressed by our Connecticut courts. However, in an action by alumnae who alleged that Yale University’s procedures for treating sexual harassment violated title IX, the Second Circuit Court of Appeals found that ‘graduation has mooted their claims for grievance procedures.' Alexander v. Yale University, 631 F.2d 178, 185 (2d Cir. 1980). In an action brought by alumni alleging that a college selectively refused to grant recognition to an alumni association dedicated to the concerns of minority students, another federal court noted that — ‘in the absence of any other factors, it is apparent that, upon graduation, one may no longer look to one’s alma mater for other than such things as a transcript of grades as needed.’ Ad hoc Committee v. Bernard M. Baruch College, 726 F. Supp. 522, 523 (S.D.N.Y. 1989); see also, Hamer v. Board of Education, 140 Ill. App. 3d 308, 488 N.E.2d 1096, 1102, 94 Ill. Dec. 849 (Ill. App. Ct. 1986) (when former high school student brought action to challenge grade policy, court said since she suffered no injury, claim was moot); Corporation of Mercer University v. Smith, 258 Ga. 509, 371 S.E.2d 858 (Ga. 1988) (finding alumni, former trustees, former professor, district attorney, and donor had no standing to bring action to set aside merger).
“ ‘[A] college [only] has a contractual duty to educate its undergraduates . . . and a duty to treat each student fairly and non-discriminatorily.’ Ad hoc Committee v. Bernard M. Baruch College, supra, 726 F. Supp. 522-23. In the present case, the plaintiff alumni have already received their degrees, and the injuries they have allegedly suffered due to UB’s alleged loss of academic reputation fall within the ‘impermissible realm of general speculation about unproven hypothetical situations.’ Maloney v. Pac, supra, 183 Conn. 322. Having failed to demonstrate aggrievement the alumni plaintiffs are without standing to bring the present action.”

DISCUSSION

No citations are necessary in considering a motion to dismiss based on a failure to state a claim. The law provides that a court shall not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims and it appears beyond doubt that the plaintiffs can prove no set of facts in support of any of their claims which will entitle them to relief.

In our view, although inartfully pled, this case presents us with the difficult question of whether portions of an obviously well intended letter from the president of a university can withstand First Amendment scrutiny.

Simply stated, plaintiffs’ motion for preliminary injunction (which was not addressed at the argument) and defendants’ motion to dismiss are inextricably intertwined. If plaintiffs are able to establish a substantial likelihood of success on the merits, then defendants’ motion to dismiss must be denied inasmuch as it seeks to dismiss all of the counts of the fifth amended complaint. For this reason, the scope of our analysis shall be limited. If we find that plaintiffs have evidenced a likelihood of success on the merits, defendants’ argument that the count should be dismissed because the plaintiffs have failed to set forth facts sufficient to support their claims, will be rejected.

In summary form, plaintiffs’ complaint challenges the constitutional validity of a writing that they claim impacts their and arguably the students’ First Amendment rights to free speech, free association and freedom of religion.

Against this backdrop we must also determine whether the president of Lebanon Valley College should be enjoined from enforcing provisions in his letter which impliedly were mailed with the noble purpose of making Lebanon Valley College a better place to live and learn.

The court is also aware, however, that “if there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what will be orthodox in politics, nationalism, religion, or matters of opinion, or force citizens to confess by word or act their faith therein.” West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

On the other hand, we also agree that the expression of one’s belief should be communicated in a manner that does not provoke, harass, intimidate, or harm another, regardless of one’s strongly-held beliefs.

It should be noted, however, that an important guidepost is that “the Supreme Court has held time and again, both within and outside of the school context, that the mere fact that someone might take offense of the content of speech is not sufficient justification for prohibiting it.” Saxe 240 F.3d 215 (citing Tinker, 393 U.S. 509; Texas v. Johnson, 491 U.S. 397, 414 (1989)); Street v. New York, 394 U.S. 576, 592 (1969); Doe v. University of Michigan, 721 F. Supp. 852, 863 (E.D. 1989); see also, R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 414 (1992) “the mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected;” Sypniewski, 307 F.3d 264-65. Thus, regulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings.

Clearly, the tone of the letter from President Pollick supports an open and civil exchange of ideas. However, we are unsure without further discovery about the nature and extent of his assertions as to “confrontation,” “demeaned,” “verbally accosted” and “thwarting the free exchange of ideas.” Also, we are uncertain about the reference to the “rules of civility that guide the college.” We would note that simply utilizing buzzwords without more content does not illuminate our inquiry.

Similarly, the assertion from a later letter from President Pollick that “conversation is not harassment” seems to be, in part, the point the Jarboes are making.

We believe that the concept of prohibiting communications which “confront” suggests that a person’s beliefs (be they alumni or student), should not be communicated in a way that arouses interest and stimulates a response needs to be reviewed. In our view, any such limitation should be carefully analyzed. Aside from the constitutional concerns of any such prohibition, it is worth noting that such a view is inconsistent with our nation’s tradition of safeguarding “free and unfettered interplay of competing views” in the academic arena. Doe v. Michigan, 721 F. Supp. 852, 864 (1989); see also, Keyishian v. Board of Regions, 385 U.S. 589, 603 (1967); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957). Communications which provoke a response, especially in a university setting, have historically been deemed an objective to be sought after rather than a detriment to be avoided. To illustrate, our recollection of the Socratic method used by our professors in law school was one where we were challenged with systematic doubt and confrontational questioning. Such also occurred between peers, in a less structured and informal setting. While at the time the “give and take” was unnerving, and to some even perceived as a harassing event (when employed by a “Professor Kingsfield” type character). Such was ultimately a positive learning experience.

Despite such a salutary objective, by comparison, one of plaintiffs’ exhibits to their complaint seems to indicate that plaintiff Abigail Jarboe, who was a write-in candidate for the 101st District seat, was prohibited from participating in a candidate’s forum at Lebanon Valley College, presumably because of the president’s letter of exclusion. If correct, such a prohibition is troublesome and contrary to our democratic ideals.

Finally, in consideration of the foregoing observations that communications which provoke a reasonable and rational response, whether in the university or court setting have a rational basis, we tender the following proposal. Rather than engage in what could be a lengthy and costly proceeding to all concerned, we, pursuant to our discretion set forth in Pa.R.C.P. 212.3, direct that Dr. and Mrs. Jarboe, as well as President Pollick and his counsel, appear at a pretrial conference to review the six criteria set forth, as well as explore any possible amicable resolution to this matter.

In the interim, we are confident that our holding today will not have a deleterious affect upon the ability of the administration to properly regulate conduct at Lebanon Valley College. In our view, the criminal laws of the Commonwealth of Pennsylvania, local ordinances, and applicable federal and state anti-discrimination laws all combine to provide adequate safeguards. In consideration of the foregoing, we enter the following:

ORDER

And now, October 15, 2003, defendants’ preliminary objections are denied, an answer shall be filed within 20 days of service of this order, and a pretrial conference pursuant to Pa.R.C.P. 212.3 is scheduled for November 4, 2003 at 1 p.m. in courtroom no. 1 of Lebanon County Courthouse and we direct both pro se plaintiffs, President Pollick and counsel to be present at said conference.

      . A person(s) who stimulates or annoys especially by persistent criticism. Merrian Webster 11th Collegiate Dictionary.

      . We would note that plaintiffs filed their many amended complaints without leave of court and we had to stay the filing of any further complaints to reach this juncture of proceeding.

      . (a) In any action the court, of its own motion or on motion of any party, may direct the attorneys for the parties to appear for a conference to consider:
      (1) The simplification of issues;
      (2) The necessity or desirability of amendments to the pleadings;

        (3) The possibility of obtaining admission of fact and of documents which will avoid unnecessary proof;
      (4) The limitation of the number of expert witnesses;
      (5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury;
      (6) Such other matters as may aid in the disposition of the action.


author: WETTICK JR., J.,

text:
    Herrmann v. Pristine Pines of Franklin Park Inc.

      C.P. of Allegheny County,
    no. GD03-6835.

      John P. Yukevich Jr., for plaintiff.

      Paul J. Walsh III, for defendant.
    September 29, 2003
   WETTICK JR., J.,

The subject of this opinion and order of court is plaintiff’s petition to strike or open a judgment of non pros entered pursuant to Pa.R.C.P. 1042.6 based on plaintiff’s failure to file a certificate of merit within 60 days after the filing of the complaint. Plaintiff’s complaint does not identify the defendant as a licensed professional or allege that plaintiff is asserting a professional liability claim. The issue raised through this petition is whether a judgment of non pros may be entered for failure to file a certificate of merit where the complaint does not allege that the plaintiff is raising a professional liability claim.

Plaintiff is the executrix of the estate of Velma Tetrick. The only defendant is Pristine Pines of Franklin Park Inc., which plaintiff identifies as a corporation operating a personal care home where Ms. Tetrick resided.

The complaint alleges that Ms. Tetrick died as a result of blunt trauma to her head and chest. The injury occurred between 11:20 p.m. when Ms. Tetrick had returned to the personal care home from a hospital emergency room and 6:30 a.m. when an employee of defendant found Ms. Tetrick lying on the floor in her room by a closet door. Ms. Tetrick was never able to describe what happened to her.

The negligence allegations against the personal care home include the home’s failure to follow discharge instructions from the hospital to administer pain medication and to evaluate Ms. Tetrick hourly for signs and symptoms of disorientation; the personal care home’s failure to have a sufficient number of qualified staff on duty at the time of the incident; and the personal care home’s failure to have and to implement various policies and procedures.

The complaint was filed on April 4, 2003. An answer was filed on June 12, 2003.

On July 1, 2003, defendant filed a praecipe for entry of judgment of non pros pursuant to Rule 1042.6. In the praecipe, counsel for defendant certified that plaintiff “has asserted a professional liability claim against the defendant named above who is a licensed professional, that no certificate of merit has been filed within the time required by Pa.R.C.R 1042.3 and that there is no motion to extend the time for filing the certificate pending before the court.” The prothonotary entered a judgment of non pros on the same day.

Rule 1042.3 provides that in an action based on an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff shall file a certificate of merit with the complaint or within 60 days after the filing of the complaint (unless the court upon cause shown extends the time for filing pursuant to a motion to extend, filed on or before the filing date that the plaintiff seeks to extend). Rule 1042.6 provides that the prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time, provided there is no pending timely filed motion seeking to extend the time to file the certificate.

If these were the only relevant rules, I would need to consider whether the complaint is based on allegations that a licensed professional deviated from an acceptable professional standard. However, there is a third rule— Pa.R.C.P. 1042.2 — which governs the situation in which the plaintiff’s complaint has not characterized the action as a professional liability claim and the defendant believes that the action is a professional liability claim governed by Pa.R.C.P. 1042.1-1042.8. Rule 1042.2 reads as follows:

“Rule 1042.2. Complaint
“(a) A complaint shall identify each defendant against whom the plaintiff is asserting a professional liability claim.
“Note: It is recommended that the complaint read as follows:
“ ‘Defendant_(name) is a licensed professional with offices in_County, Pennsylvania. Plaintiff is asserting a professional liability claim against this defendant.’
“(b) A defendant may raise by preliminary objections the failure of the complaint to comply with subdivision (a) of this rule.
“Note: The filing of preliminary objections raising failure of a pleading to conform to rule of court is the procedure for bringing before the court the issue whether the complaint is asserting a professional liability claim.”

Defendant contends the filing of preliminary objections is not mandatory because the rule provides that the defendant, by preliminary objection, “may” raise the failure of the complaint to comply with subdivision (a) of this rule. This contention is inconsistent with the note to Rule 1042.2(b) which provides that the filing of preliminary objections raising failure of a pleading to conform to rule of court is the procedure for bringing before the court the issue of whether the complaint is asserting a professional liability claim. Also, defendant’s proposed reading of the subdivision would render this subsection meaningless. A defendant would almost never file prehminary objections, which would give notice to the plaintiff that the defendant is contending the complaint is raising a professional liability claim, if the defendant could, without giving notice to the plaintiff, file a praecipe for the entry of a judgment of non pros on the 61st day after the filing of the complaint.

The purpose of Rule 1042.2 is to have a judicial determination of whether the plaintiff is asserting a professional liability claim for which a certificate of merit must be filed before a defendant may obtain a judgment of non pros for failure to file a certificate of merit. It would be unreasonable for a rule of procedure to provide for the entry of a judgment of non pros for failure to comply with a rule where there can be uncertainty as to the applicability of the rule.

Rule 1042.2(b) uses the term “may” because a defendant is not required to file preliminary objections; the defendant may, instead, decide to live with a complaint that fails to conform to a rule of court. The language within Rule 1042.2(b) is identical to the language within Pa.R.C.R 1028(a) governing preliminary objections which provides “[pjreliminary objections may be filed by any party to any pleading and are limited to the following grounds.” (emphasis added) The law is clear that the failure to file a preliminary objection which raises a ground set forth in Rule 1028(a) constitutes a waiver of the objection except where other rules create exceptions. Roskwitalski v. Reiss, 338 Pa. Super. 85, 487 A.2d 864 (1985); Rivera v. Philadelphia Theological Seminary, 326 Pa. Super. 509, 474 A.2d 605 (1984), aff’d as modified on other grounds, 510 Pa. 1, 507 A.2d 1 (1986).

In summary, Rule 1042.2 requires a plaintiff to identify in the complaint each defendant against whom the plaintiff is asserting a professional liability claim. If a party is so identified, the rules governing professional liability actions are clear: within 60 days of the filing of the complaint, the plaintiff must, as to this party, file a certificate of merit or a motion to extend the time for filing the certificate of merit (Rule 1042.3). If the plaintiff fails to do so, the defendant may file a praecipe with the prothonotary requesting entry of a judgment of non pros (Rule 1042.6).

However, where a complaint does not allege that the plaintiff is asserting a professional liability claim against a defendant, the plaintiff is not required to file a certificate of merit as to this defendant unless the plaintiff subsequently files an amended complaint stating that the plaintiff is asserting a professional liability claim against this defendant. Through the filing of preliminary objections, a defendant may seek a court order compelling the plaintiff to file such an amended complaint on the ground that the plaintiff is asserting a professional liability claim against this defendant. If the defendant does not file preliminary objections, the defendant waives its claim that the plaintiff has violated the rule requiring the filing of the certificate of merit.

For this reason, I enter the following order of court:

ORDER

On September 29, 2003, it is hereby ordered that plaintiff’s petition to strike the judgment of non pros entered in these proceedings pursuant to Pa.R.C.P. 1042.6 is granted and the judgment of non pros is stricken.

      . See Pa.R.C.P. 128(b) which provides that in ascertaining the intention of the Supreme Court in the promulgation of a rule, a court shall be guided by the presumption that the Supreme Court intends the entire chapter of rules to be effective and certain.

      . See Rule 128(a) which provides that the Supreme Court does not intend a result that is unreasonable.


author: WETTICK, J.,

text:
    In re Silicone Breast Implant Litigation
    C.P. of Allegheny County,
    no. GD94-14550.

      Alan H. Perer, for plaintiffs.

      Diane Barr Quinlin, for defendant Skrenta M.D.

      John A. Bass, Dorothy Dujfy, Peter J. Hoffman and David M. Neuhart, for defendants.
    September 22, 2003
   WETTICK, J.,

The subjects of this opinion and order of court are defendants’ motions in limine.

I.

The first motion in limine that I address requests a ruling that a plaintiff must base her lack of informed consent claim on the injuries that she sustained from undisclosed risks.

Plaintiffs contend that this motion should be denied because, according to plaintiffs, for a claim of lack of informed consent, a plaintiff needs to prove only that the defendant-physician failed to disclose a material risk of the procedure and the plaintiff suffered some injury as a result of the procedure. The plaintiff is not required to establish that the injuries for which she is seeking compensation were undisclosed risks of the breast implant procedure.

In several cases that are scheduled for arbitration, plaintiffs seek to offer an expert witness who will testify that prior to silicone breast implant surgery the physician should have discussed with the patient risks known at that time to be common to most operations, including excessive or delayed bleeding, seroma collections of serum under the skin, infection, excessive scarring of the incision, excessive or prolonged pain, implant removal due to infection, adverse effects from the anesthesia, allergic reactions, and risks of drug usage after surgery. In addition, the physician should have discussed the following risks specific to breast implants: Implants are not lifetime devices — they may wear out; explant surgery may be indicated at any time; implants may rupture as a result of injury such as a blow to the chest or as a result of normal wear and tear; even if unbroken, implants lose amounts of silicone gel through gel bleed — -the gel can migrate to other parts of the body and may have a long-term effect; additional surgery may be required to retrieve the migrated silicone gel; capsular contraction is the most common problem — this results in excessive firmness of the breast, causing discomfort and pain in the breast, distortion of the breast, and/or displacement of the implant; the presence of a silicone gel implant makes it more difficult to read and interpret a mammogram; the implant can cause changes in the sensation of the nipple and the remainder of the breast; there may be aesthetic shortcomings — there may be asymmetry in size and shape, unsatisfactory placement and poor surgical location that may require additional surgery; extrusion may occur because of inadequate tissue coverage; saline implants are an alternative to silicone implants which do not present the risk of gel bleed or gel migration; and as of the date of the surgeries there was the possibility that silicone breast implants may cause autoimmune diseases.

It is the position of plaintiffs that if the fact-finder accepts the testimony of plaintiffs’ expert that each of the matters which this expert described is a material risk, plaintiffs will prevail if the physician failed to discuss even one of these risks. Thus, if severe pain due to capsular contracture is the only harm that the plaintiff experienced and if the plaintiff acknowledges that the physician described this risk prior to surgery, she may still recover if the physician failed to discuss one or more of the other risks such as gel bleed, changes in sensation, infection, or the possibility that silicone breast implants may cause autoimmune diseases.

The healthcare providers, on the other hand, contend that there can be no recovery for harm that the patient understood to be a known risk. Thus, the plaintiff may recover only by showing either she did not know the surgery presented the risk of harm she experienced or she was not advised of an alternative that would have minimized or eliminated this risk.

Plaintiffs raise the following argument in support of their position that they may recover for injuries, the risks of which were disclosed, if there were any undisclosed material risks associated with the implant surgery: A person may recover for any injuries caused by a battery. Any surgery, if not consented to, is a battery. A surgery performed without informed consent is surgery that is performed without consent. A surgery is performed without informed consent unless the physician advised the patient of every risk associated with the surgery and the alternatives to the surgery that a person in the patient’s situation would consider significant in deciding whether to have the surgery.

Assume a patient has chronic and severe pain in her thumb. The physician describes surgery that will eliminate the pain. The physician tells the plaintiff that while the surgery will remove the pain, it is extremely likely that she will not be able to use her thumb in the future. The physician does not tell the patient that there is a 5 to 10 percent chance that she will lose the use of her four fingers along with the thumb. The plaintiff has the operation. She loses the use of her thumb. However, she has no further pain and continues to have the use of her fingers.

The patient could not have made an informed decision as to whether to have the surgery without taking this additional risk into account. This means, according to the plaintiffs, that the patient should be treated under the law in the same fashion as if surgery was performed without any authorization. Thus, she can sue for the loss of the use of her thumb.

The case law has developed the battery approach to a lack of informed consent so that a patient does not experience any injury from a surgical procedure that constitutes a known risk unless the patient was willing to assume the risk. The opposite side of this doctrine is that unless the physician was negligent, the patient who experiences an injury from a risk that was fully explained to the patient has assumed this risk. If I accept plaintiffs’ argument, the law will be permitting recovery for a risk that the plaintiff assumed because the plaintiff might have made a different decision as a result of knowing of other risks for which the plaintiff did not experience any harm.

Frequently, there are factual disputes as to what the patient was told and as to what constitutes each and every material risk that should have been discussed with a patient. Also, a physician may choose not to fully explain each of the obvious risks associated with the surgery (such as an infection) in order that the conversation with the patient focuses on information the patient most needs in order to make an informed decision. Allowing recovery for a risk that the patient knowingly assumed would, as a practical matter, create a situation in which physicians who were not negligent might frequently be liable for injuries from a risk that the patient knowingly assumed. Thus, the doctrine of informed consent would have a reach that extends far beyond the purposes for the doctrine.

There are two purposes for the tort of lack of informed consent: to compensate a patient who suffers an injury from a known risk that was not disclosed, and to create a climate in which physicians will discuss the known risks with their patients. Allowing recovery only for injuries relating to known risks that were not explained to the patient will achieve both purposes.

With the exception of punitive damages, tort law does not regulate behavior through the imposition of punitive awards. It regulates behavior only through the award of damages that are intended to compensate a party for his or her actual losses. No relief is provided without actual losses. A patient who assumed a known risk has not sustained any actual losses from the physician’s failure to disclose other material risks.

This ruling, that in the absence of negligence a patient may not recover for an injury from a risk that was discussed with the patient, is consistent with the Superior Court’s discussion of the requirements to establish a claim of lack of informed consent.

In Jozsa v. Hottenstein, 364 Pa. Super. 469, 528 A.2d 606 (1987), the trial court entered a directed verdict in favor of the defendant-physician because expert testimony established that there was only a 4-5 percent risk of recurrence for carpal tunnel after the surgery and no expert testimony was offered as to alternative procedures or their feasibility. The Superior Court reversed. The court stated:

“The law is very clear that once expert medical testimony establishes that there was a risk of any nature to the patient that he or she was not informed of, and after surgery the patient suffers from that undisclosed risk, it is for the jury to decide whether the omission was material to an informed consent....
“We emphasize that once expert testimony establishes the existence of an undisclosed risk of a recommended medical procedure ..., it is the role of the jury to decide whether that type of harm if it occurs, is a risk which a reasonable patient would consider in deciding on whether to undergo or reject the procedure.” Id. at 474,528 A.2d at 608. (emphasis added)

In Neal by Neal v. Lu, 365 Pa. Super. 464, 478, 530 A.2d 103, 110 (1987), the treating physician admitted that he never explained to the patient (a minor) or the patient’s parents the possibility that the surgery would require “ ‘trimming’ of bone or the insertion of a ‘pin.’ ” Both the patient and her mother testified that they would not have consented to the surgery had they known of the possible consequences. They sought reversal of a verdict in favor of the physician on the ground that the evidence conclusively established the physician’s liability on the informed consent claim. In its discussion, the court set forth three requirements to establish liability, one of which is an injury the risk of which was undisclosed:

“In Pennsylvania, a physician is liable to his or her patient if (1) the physician fails to disclose any risk in the recommended treatment, or the existence of any alternative method of treatment, that a reasonable person would deem material in deciding whether to undergo the recommended treatment; (2) the patient would have forgone the recommended treatment had he or she known of the undisclosed information; and (3) as a result of the recommended treatment, the patient actually suffers an injury the risk of which was undisclosed, or the patient actually suffers an injury that would not have occurred had the patient opted for one of the undisclosed methods of treatment." Id. at 478, 530 A.2d at 111. (emphasis added)

In Maliszewski v. Rendon, 374 Pa. Super. 109, 542 A.2d 170 (1988), the court held that the plaintiffs’ lack of informed consent claim was properly dismissed because the plaintiffs had no medical testimony supporting their claim that the patient’s severe backache and incapacitation due to pain were the result of back surgery. In discussing the necessity of expert medical testimony in informed consent cases, the court cited the language in Neal by Neal v. Lu that it is essential for recovery to show that as a result of the recommended treatment, the patient actually suffers an injury the risk of which was undisclosed or an injury that would not have occurred had the patient opted for one of the undisclosed methods of treatment.

In Grabowski v. Quigley, 454 Pa. Super. 27, 684 A.2d 610 (1996), the plaintiff based a lack of informed consent claim on his testimony that he had consented to undergo surgery performed only by Dr. Quigley. The surgery was mainly performed by a physician other than Dr. Quigley. Following the surgery, the patient experienced continued back pain and drop foot. The trial court dismissed the claim on the ground that the patient did not provide expert medical testimony as to any injuries attributable to the surgery.

The Superior Court distinguished between the situation in which the patient alleged that there was no consent for any surgery and the situation in which the patient alleged that consent was not informed (j.e., the patient, before consenting to the surgery, had not been provided with material information necessary to determine whether to proceed with the surgery).

“Unlike an informed consent case where it must be shown that ‘ “as a result of the recommended treatment, the patient actually suffers an injury the risk of which was undisclosed, or the patient actually suffers an injury that would not have occurred had the patient opted for one of the undisclosed methods of treatment[,]” Id. (quoting Neal by Neal v. Lu, 365 Pa. Super. 464, 478, 530 A.2d 103, 111 (1987)), it is not necessary for a plaintiff to prove such specific medical findings under a theory of battery. Therefore, while the need for expert medical testimony is necessary in an informed consent case, it is not where the case involves battery. See Tom v. Lenox Hill Hospital, 627 N.Y.S.2d 874, 876, 165 Misc.2d 313, 316 (1995) (recognizing battery claim under similar facts and providing that claim ‘does not require expert medical testimony as would normally be tme with an informed consent claim’). 454 Pa. Super. at 37, 684 A.2d at 615. (emphasis added)

Plaintiffs contend that the case law cited above was rejected by the Supreme Court of Pennsylvania in Montgomery v. Bazaz-Sehgal, 568 Pa. 574, 798 A.2d 742 (2002). In Montgomery, the physician implanted an inflatable pump prosthesis in the patient’s penis during the course of corrective surgery. The patient contended that this was done without his permission. At trial, he testified that he had certain physical injuries from the implantation of the prosthesis. He also testified as to the emotional impact of the device on his life. The trial court granted a directed verdict because the plaintiffs did not offer any expert testimony linking the implantation of the prosthesis to the physical or emotional injuries. The Superior Court partially reversed; it held that expert testimony was necessary to prove that the claimed physical injuries were caused by the insertion of the prosthesis. However, it ruled that expert testimony was not necessary to prove that emotional injuries resulted from the prosthesis.

The Superior Court’s opinion included language that if this were a claim that the patient was inadequately advised of the risks and alternatives of the procedure to which the patient consented, this would be a lack of informed consent case grounded in negligence. However, the claim in this case was grounded in battery because there was no consent to the procedure.

The Pennsylvania Supreme Court affirmed the ruling of the Superior Court. However, while recognizing that the Superior Court’s approach did not affect its ruling, the Supreme Court specifically addressed and rejected the characterization of a claim of lack of informed consent for surgery as sounding in negligence. The Supreme Court stated:

“Thus, this court has made clear on repeated occasions over a period of several decades that a claim based upon a lack of informed consent involves a battery committed upon a patient by a physician, an action which is distinct from a claim of a consented-to, but negligently performed, medical treatment. Since surgery performed without a patient’s informed consent constitutes a technical battery, negligence principles generally do not apply. It follows, of course, that a claim involving a surgical procedure performed without any consent at all by the patient, such as the implantation in the case sub judice, also sounds in battery, and negligence requirements have no bearing on the matter.” Id. at 585, 798 A.2d at 748-49.

It is plaintiffs’ position that the Montgomery opinion allows recovery for injuries caused by a known risk unless the physician can establish that he or she discussed with the patient each and every material risk associated with the surgical procedure. It is also plaintiffs’ position that the Superior Court case law which I cited is inapplicable because the Superior Court was using a negligence analysis.

As to the first issue, the Montgomery opinion simply described what has traditionally been the court’s approach to claims based on a lack of informed consent. The Montgomery opinion never addressed the issue of whether a patient may recover for a known risk which the patient assumed unless the physician establishes that he or she discussed each and every material risk associated with the surgical procedure with the patient.

As to the second issue, the Superior Court’s opinion in Montgomery v. Bazaz-Sehgal, 742 A.2d 1125, 1130 (Pa. Super. 1999), is the only opinion in which the Superior Court suggested that a lack of informed consent claim is grounded in negligence while a lack of consent claim is based on a battery theory. Prior to the Montgomery opinion, the Superior Court opinions characterized a lack of informed consent claim as a battery on the patient. See Nogowski v. Alemo-Hammad, 456 Pa. Super. 750, 762, 691 A.2d 950, 956-57 (1997), where the court, citing Sagala v. Tavares, 367 Pa. Super. 573, 581, 533 A.2d 165, 169 (1987), alloc. denied, 518 Pa. 626, 541 A.2d 1138 (1988), said that if informed consent is not given “then there is a battery on the patient by the physician.”

I recognize that in Grabowski v. Quigley, supra, the court differentiated between a surgery performed without any consent and a surgery performed without informed consent: the court stated that in the former situation the physician is liable for any injuries arising out of the surgery while in the latter situation, the physician must show that the injury involved a material risk that was not explained. However, nothing in the opinion suggests that the court was characterizing a lack of informed consent claim as a negligence action rather than as a battery. The court was simply saying that in a lack of informed consent claim, a jury cannot determine whether the injury involved a risk that should have been explained to the patient without expert testimony. However, expert testimony is not needed where the only issue for the jury is the plaintiff’s claim that he or she never consented to the surgery that the physician performed.

After the Superior Court decision in Montgomery and prior to the Pennsylvania Supreme Court’s ruling, the Pennsylvania Superior Court continued to apply a battery theory to lack of informed consent claims. See Bey v. Sacks, 789 A.2d 232, 241 (Pa. Super. 2001), where the court stated:

“Dr. Sacks relies on Montgomery v. Bazaz-Sehgal, supra, contending that lack of informed consent claims in Pennsylvania now are ‘grounded in negligence, while claims of consent are grounded in battery.’ (Appellant’s brief at 23.) Therefore, he argues, because under this interpretation a lack of consent claim is now considered to be under a negligence theory, a jury instruction on comparative negligence should have been given. We disagree.
“In Montgomery, this court alluded to the apparent distinction between informed consent cases grounded in negligence and those that are based on a battery theory. Montgomery, 742 A.2d at 1130. There, the plaintiffs brought a medical malpractice action alleging, based on both a lack of informed consent and negligence, that the surgeon had impermissibly expanded a surgical procedure to which the plaintiff had consented to one of vastly different outcome and magnitude. Based on those very different facts, this court concluded that the case was one of battery ‘grounded on the lack of consent to the procedure itself, not a negligence case grounded on the act of inadequately advising the patient of the risks of or alternatives to the procedure (an “informed consent” case).’ Id. at 1131.
“Dr. Sacks now argues that this court’s statement in Montgomery acknowledging the possible existence of an informed consent theory grounded in negligence supports the theory that he was entitled to a comparative negligence charge to the jury. However, in light of the significant volume of case law adhering to the battery theory of informed consent claims, until our Supreme Court holds otherwise, we decline to find that this lone statement grants appellant license to proceed under a negligence theory of lack of implied consent.”

II.

Defendants have also filed motions in limine to strike plaintiffs’ expert reports on the ground that the proposed testimony does not permit the fact-finder to determine the materiality of the risks described in the expert report. Many of the objections to the reports involve risks of injuries that the plaintiff did not experience. Consequently, testimony as to these risks is inadmissible under this court’s ruling in Part I of this opinion.

Under settled case law, the plaintiff is required to present expert testimony as to the nature of the harm attendant to the procedure and the probability of it occurring. The jury must then decide whether these are risks that a reasonable person would have considered material to the decision of whether or not to undergo treatment. See Moure v. Raeuchle, 529 Pa. 394, 404-405, 604 A.2d 1003, 1008 (1992) (citations omitted), where the Pennsylvania Supreme Court described the roles of the expert and the jury as follows:

“In order for a consent to be considered informed it must be shown that the patient was advised of ‘those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment.’ ... The determination of what is material is a jury question, and in making that determination the jury must be supplied with expert information as to the nature of the harm attendant to the procedure, and the probability of that harm occurring. Thereafter, the jury must determine whether the type of harm and the probability of its occurrence is information which a reasonable patient would consider in deciding whether to undergo the medical procedure.”

Also, see Bey v. Sacks, supra, 789 A.2d at 238 (citations omitted), where the court stated:

“Our Supreme Court previously has held that the question of what is a material risk is one for the jury. . . . However, in making that determination, ‘the jury must be supplied with expert information as to the nature of the harm attendant to the procedure, and the probability of that harm occurring.’ . . . The jury must then determine if the type of harm and the probability that it may occur is information that a reasonable patient would consider in making the decision whether to undergo the medical procedure.”

Defendants contend that for various risks described in the expert reports, the expert fails to adequately describe the harm that may occur or the probability of that harm occurring. Consequently, the report must be stricken because the jury is not in a position to determine whether or not the risk is so remote or so incidental as to not constitute the type of harm that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation. Plaintiffs disagree with defendants’ characterizations of the reports.

The admissibility of the expert reports will be determined by the arbitrator assigned to hear the case at the arbitration hearing. Once the arbitration hearing has begun, it shall not be continued in order to permit any party to file supplemental expert reports.

III.

Defendants have filed a motion in limine seeking a court order barring plaintiffs from referring to package inserts. This matter shall also be decided by the arbitrator who shall determine whether package inserts are admissible and, if so, the purposes for which they may be admitted.

ORDER

On September 22,2003, it is ordered that defendants’ motions in limine are partially granted and in their battery claims based on a lack of informed consent plaintiffs may seek recovery only for injuries arising out of the implant surgery, the risks of which were undisclosed, or for injuries that would not have occurred if plaintiffs had opted for an undisclosed method of treatment.

      . Although this court granted defendants’ Frye motion and ruled that plaintiffs may not pursue claims for autoimmune diseases, it is plaintiffs’ position that as of the dates of the implants, this was believed to be a known risk that should have been discussed.

      . Legislation addressing informed consent (Act of November 26, 1996, P.L. 776, no. 135, §10, 40 P.S. §1301.811-A, repealed and re-codified as amended, Act of March 20, 2002, P.L. 154, 40 P.S. §1303.504) is inapplicable because these laws became effective after the breast implant surgeries.


author: MOTTO, J.,

text:
    Ash v. Continental Insurance Co.

      C.P. of Lawrence County,
    no. 10492 of 2002, C.A.

      John W. Hodge, for plaintiffs.

      Maureen C. Zemel, for defendant.
    September 15, 2003
   MOTTO, J.,

Before the court for disposition are (1) the defendant’s motion for summary judgment requesting that plaintiffs’ complaint for breach of an insurance contract be dismissed because the action was commenced after the expiration of the one-year limitation period set forth in the insurance contract, and (2) plaintiffs’ motion for leave to amend the complaint to add a claim for bad faith pursuant to 42 Pa.C.S. §8371.

The issues that are dispositive of the foregoing matters are as follows:

(1) Is the one-year limitation period set forth in the insurance contract applicable to plaintiffs’ claim of breach of the insurance contract for refusal to pay the insurance proceeds?

(2) Is a bad faith cause of action pursuant to 42 Pa.C.S. §8371 subject to a two-year statute of limitations relating to actions in tort, therefore requiring the court to refuse plaintiffs’ motion for leave to amend complaint on the basis that the proposed bad faith claim is barred by the applicable statute of limitations?

Plaintiffs entered into an insurance contract with the defendant whereby defendant issued a policy of insurance on plaintiffs’ premises situated at 2034 Moravia Street, Lawrence County, Pennsylvania. On or about July 8, 2000, while the policy was in effect, a fire ensued, causing loss to the insured premises. Plaintiffs provided defendant with a timely notice of loss, but defendant issued a letter on November 21, 2000, declining to honor the claim citing concealment or fraud. This refusal to pay the insurance proceeds resulted in plaintiffs filing of a complaint against defendant on May 3, 2002 seeking damages for breach of the insurance contract.

In its motion for summary judgment, defendant asserted the one-year limitation period found in the insurance contract. During the argument of the motion for summary judgment on June 23, 2003, counsel for the plaintiffs presented a motion for leave to amend complaint. The proposed amended complaint attached to plaintiffs’ motion for leave to amend added a second count for bad faith pursuant to 42 Pa.C.S. §8371. This court issued a rule to show cause directing the defendant to show cause why plaintiffs’ motion for leave to amend complaint should not be granted. Defendant’s response to rule to show cause opines that the proposed second count is barred by application of the statutory limitations period.

The count in the complaint is for breach of the insurance policy contract. That this count is barred by the policy’s statute of limitations is not seriously disputed. With the fire happening on or about July 8, 2000, and the action commencing May 3, 2002, a period of nearly 22 months elapsed, nearly 10 months beyond the period allowed by contract. One-year limitation periods for commencing suits imposed by insurance policies are recognized and honored by the Pennsylvania courts. Schreiber v. Pennsylvania Lumberman’s Mutual Insurance Co., 498 Pa. 21, 444 A.2d 647 (1982); March v. Paradise Mutual Insurance Co., 435 Pa. Super. 597, 646 A.2d 1254 (1994), appeal denied, 540 Pa. 613, 656 A.2d 118 (1995). No reason has been advanced by plaintiffs as to why the contractual limitation period is not applicable to the plaintiffs ’ complaint.

Plaintiffs now seek to amend the complaint to add a claim for bad faith pursuant to 42 Pa.C.S. §8371. Defendant opposes the proposed amendment on the basis that such a claim is also time barred, being subject to a two-year statute of limitations. The legislature of our Commonwealth has not specifically delineated a statute of limitations for this type of action, and thus far, the appellate courts of this Commonwealth have not ruled on this issue.

Plainly, the one-year limitation of 42 Pa.C.S. §5523 placed upon defamation, invasion of privacy, civil penalty, forfeiture and actions on bonds does not apply. March v. Paradise Mutual Insurance Co., supra. The two-year limitation of 42 Pa.C.S. §5524 placed on tort actions has been held to be applicable as will be discussed infra. The limitation period set forth by the plaintiffs as the most apposite is the four-year limitation of 42 Pa.C.S. §5525. Plaintiffs’ brief in support of motion for leave to amend complaint, pp. 2-4. This four-year limitation is applicable to actions in contract. 42 Pa.C.S. §5525. The five-year limitation of 42 Pa.C.S. §5526, relating to actions of real property judgment liens, contract for the sale of real property and enforcement of trusts as to real property is obviously not applicable. Finally, the catchall six-year limitation of 42 Pa.C.S. §5527 would apply if no other section specifically applies, and is a limitation period that has also been held to be applicable as also will be discussed infra.

In advancing the four-year statute of limitations (42 Pa.C.S. §5525), the plaintiffs contend that the underlying claim is one in contract. Since the insurer is in a fiduciary capacity due to the contract and as refusal of a claim can only be seen as bad faith because of that fiduciary capacity, it is argued that this bad faith insurance claim under 42 Pa.C.S. §5527 should be seen as claim ex contractu and, therefore, subject to the four-year statute of limitations of 42 Pa.C.S. §5525. However, we have not been cited to, nor can we find, any court applying Pennsylvania law ruling the four-year limit is applicable to a section 8371 action.

Contract law, the corpus juris plaintiffs advocate as most akin, concerns itself with promises parties exchange between themselves. Since it determines whether monies are owed under the policy strictly by the terms of the policy, it is an endogenous frame of reference. Contract law is the body of law that would apply to determine whether monies would be owing under the policy as per the breach of contract claim contained in its complaint.

A section 8371 bad faith action differs from the claim for breach of the contract for insurance coverage. In the bad faith action, the insurer can be liable for damages extra contractual (including punitive damages). The mere withholding of benefits based on some reasonable interpretation of the contract will not give rise to these additional damages. What will only give rise to these additional damages is bad faith. “For purposes of an action against an insurer for failure to pay a claim” bad faith “imports a dishonest purpose and means a breach of a known duty (i.e. good faith and fair dealing) through some motive of self interest or ill will[.]” Adamski v. Allstate Insurance Co., 738 A.2d 1033, 1036 (Pa. Super. 1999), quoting Black’s Law Dictionary. “ ‘Bad faith’ on [the] part of [an] insurer is any frivolous or unfounded refusal to pay proceeds of a policy.” Romano v. Nationwide Mutual Fire Insurance Co., 435 Pa. Super. 545, 553, 646 A.2d 1228, 1232 (1994). See also, O’Donnell v. Allstate Insurance Co., 734 A.2d 901 (Pa. Super. 1999).

The essence of the bad faith action is that the withholding of benefits is “frivolous” or “unfounded,” or arises from a “dishonest purpose” or a “motive of self-interest or ill will.” The prohibition against allowing an insurer to act in such manner has no roots in the contract itself, but arises from societal expectations completely independent of any contract. The very basis for the creation of the bad faith cause of action is beyond the domain of the law of contracts and well into the domain of the law of torts.

Pennsylvania state courts and the federal courts in Pennsylvania have been divided between the application of a two-year as opposed to a six-year statute of limitations to a bad faith section 8371 claim.

Susich v. Prudential Property and Casualty Insurance Co., 35 D.&C.4th 178, 181-82 (1998), applied a two-year period reasoning that bad faith claims fall into both the “civil penalty” and tort categories of 42 Pa.C.S. §5524(5) and (7). However, Trujillo v. State Farm Mutual Automobile Insurance Co., 54 D.&C.4th 241 (2001), and Mantia v. Northern Insurance Co. of New York, 39 D.&C.4th 71 (1998), both applied a six-year period, reasoning that bad faith claims sound in, and contain elements of both, contract and tort, and that therefore the “catchall” statute of limitations of 42 Pa.C.S. §5527 was applicable, which provides for a six-year period for an action not subject to a statutorily specified limitation. The Superior Court in Trujillo reversed the trial court and imposed a two-year statute, but then withdrew the opinion. 2002 Pa. Super. Lexis 3705 (Sept. 4, 2002).

In Haugh v. Allstate Insurance Co., 322 F.3d 227 (3d Cir. 2003), the United States Court of Appeals, in predicting how the Pennsylvania Supreme Court would rule if confronted with the issue now under consideration, held that under Pennsylvania law the limitations period for a statutory bad faith action against an insurer was the two-year statute, 42 Pa.C.S. §5524(7), applicable to tort actions, and not the four-year period of 42 Pa.C.S. §5525(8), applicable to contract actions or the six-year “catchall” period of 42 Pa.C.S. §5527.

The Haugh court reviewed the federal and state decisions that had found either a two-year or six-year period to be applicable. Haugh found it more persuasive that section 8371 is an action that sounds in tort, adopting the interpretation that the bad faith action is a legislative creation of a new tort in response to language contained in D’Ambrosia v. Pennsylvania National Mutual Casualty Insurance Co., 494 Pa. 501, 431 A.2d 966 (1981), where the Pennsylvania Supreme Court refused to acknowledge a judicially-created cause of action in trespass for bad faith conduct of an insurer in denying a claim.

In concluding that a section 8371 bad faith action sounds in tort, Haugh noted that although the Pennsylvania Supreme Court in Birth Center v. St. Paul Companies Inc., 567 Pa. 386, 787 A.2d 376 (2001), recognized that a bad faith refusal to settle a claim can give rise to a distinct contract bad faith cause of action; nevertheless, three justices in that case specifically found that a section 8371 bad faith claim is a statutory cause of action that sounds in tort, specifically Justice Nigro in his concurring opinion, Justice Zappala in his dissenting opinion with Justice Castille joining in the dissenting opinion of Justice Zappala.

This court agrees with and adopts the view that a section 8371 bad faith action is a statutorily created tort action and is therefore subject to the two-year statute of limitations of 42 Pa.C.S. §5524(7). It is compelling that the legislature created the cause of action as a response to the Pennsylvania Supreme Court’s refusal to do so by judicial action in D’Ambrosia, supra. See Haugh v. Allstate Insurance Co., 322 F.3d at 235; Polselli v. Nationwide Mutual Insurance Co., 23 F.3d 747, 750 (3d Cir. 1994); Birth Center v. St. Paul Companies Inc., 787 A.2d at 391 n.3 (dissenting opinion). Moreover, the action permits the insured to recover punitive damages, which remedy is typically only available in tort actions. Birth Center v. St. Paul Companies Inc., id.; AM/PM Franchise Association v. Atlantic Richfield, 526 Pa. 110, 126, 584 A.2d 915, 927 (1990). The majority of states which have addressed a cause of action for bad faith have treated the action as a tort. Haugh, 236 F.3d at 235 n.3. The Pennsylvania Supreme Court has noted Gruenberg v. Aetna Insurance Co., 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032 (1973), to be the leading case on the creation of the “new tort” of bad faith. D’Ambrosia v. Pennsylvania National Mutual Casualty Insurance Co., 494 Pa. at 507-508, 431 A.2d at 970. See also, Bibeault v. Hanover Insurance Co., 417 A.2d 313 (R.I. 1980); Anderson v. Continental Insurance Co., 85 Wis.2d 675, 271 N.W.2d 368 (1978). Also supporting the position that a bad faith action is a tort is the concept that a bad faith action is based upon a standard of conduct imposed by society, which is consistent with a tort claim. Nelson v. State Farm Mutual Insurance Co., 988 F. Supp. 527 (1997), citing W. Page Keeton et al., Prosser and Keeton on Torts, section 1 at 6 (5th ed. 1984).

After reviewing the court decisions that have addressed this issue we conclude that a bad faith action under section 8371 sounds in tort and is subject to a two-year statute of limitations.

For the reasons above set forth, the defendant’s motion for summary judgment must be granted and the plaintiff’s motion for leave to amend complaint must be denied.

ORDER

And now, September 15,2003, for the reasons set forth in the accompanying opinion of even date herewith it is ordered, adjudged and decreed as follows:

(1) Defendant’s motion for summary judgment is granted, summary judgment is entered in favor of defendant and against plaintiffs, and plaintiffs’ complaint is dismissed.

(2) Plaintiffs’ motion for leave to amend complaint is denied.