author: NEALON, J.,

text:
    Oven v. Pascucci

      C.P. of Lackawanna County,
    no. 99-CV-5279.

      James E. Colleran and David C. Devine, for plaintiffs.

      David W. Saba and Lara J. Endler, for defendants Pascucci and Northeastern Eye Institute.

      William D. Longo, for defendant Cimochowski.
    June 9, 2000
   NEALON, J.,

Defendant, Northeastern Eye Institute Inc., has filed preliminary objections seeking to dismiss Count IV of the complaint asserting a cause of action against NEI, based upon LASIK eye surgery performed at NEI by defendant, Stephen E. Pascucci M.D., and postoperative treatment provided by Dr. Pascucci and defendant, Joseph Cimochowski O.D. Since the complaint avers that NEI failed to properly maintain the surgical equipment used and neglected to implement appropriate protocols for LASIK procedures performed at its outpatient surgical facility, NEI may be corporately liable for systemic negligence. Furthermore, in light of the allegations that Dr. Pascucci and Dr. Cimochowski were employees and shareholders of NEI, that professional corporation may be held vicariously liable for the alleged negligence of those physicians.

I. FACTUAL BACKGROUND

In considering the merits of NEI’s preliminary objections, the well-pleaded averments of the complaint must be accepted as true. Estate of Witthoeft v. Kiskaddon, 557 Pa. 340, 343 n.1, 733 A.2d 623, 624 n.1 (1999). Plaintiff, Kathryn J. Oven, contends that her treating optometrist, Dr. Cimochowski, referred her to his fellow NEI employee, Dr. Pascucci, to undergo LASIK surgery for myopia. (See plaintiffs’ complaint, ¶¶4-6.) Dr. Pascucci performed the LASIK procedure on April 13, 1998, at which time he allegedly “made an improper, shallow and thin cut” which caused “blurred vision” and “loss of clear vision” in Oven’s right eye. (Id. ¶¶7-9.)

Oven maintains that Dr. Pascucci attempted remedial surgery on June 12, 1998, and that during a postoperative visit on June 15,1998, Dr. Cimochowski negligently removed the bandage lens after four unsuccessful attempts. (Id., ¶¶12-13.) Oven avers that she has “experienced double and sometimes triple vision” as a result of the improper removal of her bandage lens and has been required to undergo additional surgeries in an effort to correct her vision problems. (Id., ¶¶15-16.)

In Counts I and II of the complaint, Oven asserts claims against Dr. Pascucci for malpractice and lack of informed consent. Count III sets forth a cause of action against Dr. Cimochowski and alleges negligent postoperative treatment. As to NEI, Count IV of the complaint states:

“(26) The negligence and carelessness of Northeastern Eye Institute Inc., increasing the risk of harm and causing the aforementioned harm to Kathryn J. Oven, consisted of the following:
“(a) failing to provide adequately trained personnel to provide care to its patients;
“(b) failing to provide adequate and required equipment and medical devices for the safe performance of the LASIK surgical procedure;
“(c) failing to provide adequate supervision of its employees and agents;
“(d) failing to have policies and protocols in place controlling and governing the performance and timing of LASIK and other surgical procedures and the proper removal of bandage lens [sic].
“(27) Northeastern Eye Institute Inc. is responsible as a matter of law for the conduct of its agents and employees, including [Dr. Pascucci and Dr. Cimochowski].” {Id., ¶¶26-27.)

On February 7,2000, NEI filed preliminary objections seeking the dismissal of Count IV of the complaint on the grounds that “Pennsylvania law does not recognize a cause of action of corporate or independent negligence against a physician-owned and operated entity such as Northeastern Eye Institute Inc.” (See defendant’s preliminary objections, ¶6.) Oven counters, without citation to any legal authority, that the theory of corporate liability does not include a “threshold requirement that [NEI] must play a role in the total health care of the patient before the medical provider is subject to tort liability.” (See plaintiffs’ memorandum of law, p. 7.) The parties have filed their respective memoranda of law, and following the completion of oral argument on May 31, 2000, this matter was submitted for a decision.

II. DISCUSSION

(A) Standard of Review

The core issue presented by a demurrer is whether on the facts averred, the law says with certainty that recovery under the theory alleged is impossible. DeMary v. Latrobe Printing and Pub. Co., 2000 WL 10232, ¶5 (Pa. Super. 2000). A demurrer admits all well-pleaded material facts set forth in the complaint, as well as all inferences reasonably deducible from those facts. Lowther v. Roxborough Memorial Hospital, 738 A.2d 480, 489 (Pa. Super. 1999). However, the court need not accept the pleader’s conclusions of law, unwarranted inferences from facts, opinions, or argumentative allegations. Wiernik v. PHH U.S. Mortgage Corp., 736 A.2d 616, 619 (Pa. Super. 1999).

To sustain a demurrer, it is essential that the complaint demonstrate on its face that the claim being advanced cannot be sustained as a matter of law. PennDOT v. Wilkinsburg Penn Joint Water Authority, 740 A.2d 322, 324 (Pa. Commw. 1999). The novelty of a claim or theory in and of itself does not compel the affirmance of a demurrer. Denton v. Silver Stream Nursing & Rehabilitation Center, 739 A.2d 571, 575 (Pa. Super. 1999). Furthermore, if a doubt exists as to whether a demurrer should be sustained, that doubt should be resolved in favor of overruling the demurrer. Pacurariu v. Commonwealth, 744 A.2d 389, 391 n.1 (Pa. Commw. 2000).

(B) Evolution of Corporate Liability

As the character of hospitals changed from purely charitable institutions to largely commercial entities, those health care facilities experienced a corresponding transformation in their civil liability from complete immunity, see Gable v. Sisters of St. Francis, 227 Pa. 254, 260-61, 75 A. 1087, 1089 (1910), to vicarious liability for the negligence of its own employees, see Tonsic v. Wagner, 458 Pa. 246, 253-54, 329 A.2d 497, 501 (1974), and ultimately to accountability for the malpractice of independent contractor physicians based upon a theory of ostensible or apparent agency. Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 368-69, 430 A.2d 647, 649-50 (1980); Gurevitz v. Piczon, 42 D.&C.4th 308, 316-17 (Lacka. Cty. 1999). In Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), the Supreme Court of Pennsylvania further expanded the potential liability of hospitals by adopting the theory of corporate liability which is based upon the systemic or institutional negligence of the hospital itself rather than the conduct of individual employees or physicians. To that end, the Thompson court recognized the following four duties with respect to a hospital: “(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment. . . ; (2) a duty to select and retain only competent physicians ...; (3) a duty to oversee all persons who practice medicine within its walls as to patient care ...; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients ...Id. at 339-40, 591 A.2d at 707. (citations omitted)

Unlike vicarious liability for the torts of an actual or ostensible agent, corporate negligence is not dependent upon the malpractice of a third party such as a physician or nurse. Welsh v. Bulger, 548 Pa. 504, 513, 698 A.2d 581, 585 (1997); Moser v. Heistand, 545 Pa. 554, 558, 681 A.2d 1322, 1325 (1996). By way of illustration, a hospital may be liable to a patient who suffers harm due to a substandard protocol established by the hospital even though the physician may have acted appropriately by following or adhering to that institutional policy. See “Ockham’s Scalpel: A Return to a Reasonableness Standard,” 43 Vill. L. Rev. 321, 356 (1998). Therefore, if an infection control committee of a hospital formulates a deficient procedure for changing intravenous catheter sites, Edwards v. Brandywine Hospital, 438 Pa. Super. 673, 685-86, 652 A.2d 1382, 1388 (1995), or a hospital permits a physician to perform surgery within its facility knowing that [s]he is not qualified to perform the procedure, Welsh, supra, at 515-16, 698 A.2d at 586, an injured patient may recover damages for corporate negligence.

In his dissenting opinion in Thompson, Justice Flaherty opined that “[i]n adopting this new theory of liability, the majority is making a monumental and ill-advised change in the law of this Commonwealth.” Id. at 343, 591 A.2d at 709 (Flaherty, J., dissenting). Advocating a rejection of the principle of corporate negligence, Justice Flaherty remarked:

“Further, in recognizing ‘corporate liability,’ there is no logical basis upon which to limit this extension of liability to hospitals alone. Rather, all corporations, regardless of their lines of business, will be assertedly responsible for the torts of their independent contractors. Fearfully, such extensions of liability could well follow from the present decision.” Id. at 344, 591 A.2d at 709 (Flaherty, J., dissenting). See also, Expansion of Hospital Liability Under the Doctrine of Corporate Negligence: Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), 65 Temp. L. Rev. 787, 797 n.87 (1992). Although the Supreme Court of Pennsylvania has had occasion to discuss the doctrine of corporate negligence in the context of a hospital, it has not yet addressed the extension of corporate liability to other health care facilities and providers.

(C) Application of Corporate Liability to Entities Other Than Hospitals

In the wake of Thompson, several trial courts have considered the viability of a systemic negligence claim against various types of health care organizations and providers. In Risser v. Pepper, no. 4720 S 1992 (Dauphin Cty. March 29,1996), a patient who suffered nerve damage following jaw surgery sued the dentist who performed the procedure as well as the three-dentist partnership, Central Pennsylvania Oral Maxillofacial Surgeons, which owned the facility where the surgery was conducted. The patient contended that the dentist, Larry Pepper D.M.D., was not qualified to perform the surgical procedures at issue and that CPOMS was corporately liable since it “knew or should have known that Dr. Pepper, was not competent to perform such procedures.” Id. at p. 2. Writing on behalf of the court en banc, Dauphin County President Judge Kleinfelter denied the request to dismiss the corporate negligence claim and held:

“Defendants herein argue that Thompson applies only to hospitals and that the theory of corporate liability announced in that case has not been expanded to professional corporations providing medical care outside of the hospital setting. Yet that is exactly what is implied in Kaskie [v. Wright, 403 Pa. Super. 334, 589 A.2d 213 (1991)]. Furthermore, it is apparent to all that in this day of rapid changes in the delivery of health care that many surgical procedures are being performed on an outpatient basis by various forms of medical ‘groups,’ ‘clinics,’ ‘associations’ and ‘partnerships.’ We are not prepared today to say as a matter of law that plaintiffs are barred in a negligence claim against CPOMS for liability for failing to hire or accept into partnership only those physicians who are competent either by board certification or experience.” Id. at p. 4.

In so holding, the Risser court expressly overruled an earlier holding of another three-judge panel in Firestone v. Pepper, no. 1643 S 1988 (Dauphin Cty. Dec. 16, 1992). Risser, at n.3 (“we depart today from that languge in Firestone which suggested that a claim of corporate negligence is only applicable to hospitals. As we have stated above, Thompson v. Nason Hospital does not limit its holding to hospitals”).

Similarly, in Patel v. Himalayan Int’l Inst. of Yoga Science and Philosophy, no. CV-94-1118, Vanaskie, J. (M.D. Pa. Sept. 30, 1996), a participant in the holistic health program at the Himalayan Institute brought a personal injury action against the institute and physicians affiliated with its “self-transformation program.” Alleging a “failure to provide competent holistic medical services,” the plaintiff advanced a Thompson claim against the institute. In denying the request to dismiss the cause of action for institutional liability, Chief U.S. District Judge Thomas I. Vanaskie reasoned:

“The malpractice claim against the institute... stands on a different footing. There is no dispute that the requisite health care relationship existed between the institute and the plaintiff. The institute’s argument that Thompson v. Nason Hospital, supra, which applied the doctrine of corporate negligence to a health care facility, is limited solely to hospitals, is without merit. In this case, there is no question that the institute held itself out as providing health care services. Under these circumstances, function must prevail over form. The institute itself may be held liable for failing to uphold the proper standard of care owed its patient.” Id. at pp. 40-41.

Shortly thereafter, our neighboring court in Monroe County considered the merits of a corporate liability claim asserted against a physician-operated professional corporation. Rejecting the defense argument that corporate negligence claims are confined to hospitals, Judge Jerome R Cheslock stated:

“In accordance with Thompson which extended corporate negligence to include that of a hospital, this court finds that extending corporate negligence to a professional corporation like that of defendants’ is justified. Defendants created a professional corporation for the purpose [oí] diagnosing and treating patients. Plaintiffs may sustain a cause of action against defendants so long as they can show that defendants breached the duties enunciated in Thompson v. Nason Hospital. Therefore, defendants’ preliminary objections in the nature of a demurrer is dismissed.” Rivera v. Lawrence, no. 4325 Civil 1998, Cheslock, J., at p. 7 (Monroe Cty. Oct. 9, 1998). Compare Remshifski v. Kraus, no. 1845 Civil 1992, Miller, J., at pp. 5-6 (Monroe Cty. Sept. 8, 1995) (granting medical professional corporation’s summary judgment motion on the basis that corporate negligence “has not been extended to entities other than hospitals”).

In contrast, in Milan v. American Vision Center, 34 F. Supp.2d 279 (E.D. Pa. 1998), a patient’s corporate negligence claim against an optometrist’s office, American Vision Center was summarily dismissed. Unfortunately, the Milan decision does not indicate whether the litigation involved on-site surgery or noninvasive clinical treatment. Although the optometrist’s office had argued that “the Pennsylvania doctrine of corporate negligence established in Thompson applies only to hospitals, not to optometrist’s offices,” id. at 280, the Milan court initially observed “[tjhat Thompson concerned hospitals does not necessarily mean that the Pennsylvania Supreme Court will not in the future extend the doctrine of corporate liability to other health care organizations, or indeed (as Justice Flaherty feared), to all corporations.” Id. at 281. Nevertheless, opining that an optometrist’s office does not play a gatekeeping role in the care of patients, the federal district court “conclude [d] that the courts of Pennsylvania will, when faced with the issue, decline to recognize corporate negligence in the context of optometrist’s offices.” Id. at 282.

However, rather than restrict the application of Thompson, the Superior Court of Pennsylvania has expanded the principle of corporate negligence to health care entities other than hospitals. In Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998), a health maintenance organization had interjected itself into the medical decisions and care of its subscribers by utilizing triage nurses to handle emergency telephone calls and thereafter direct the subscriber to an appropriate physician or hospital. The trial court rejected the plaintiff’s contention that her HMO could be held corporately liable for the premature delivery and subsequent death of her child, resulting from the failure of the triage nurse to immediately refer the plaintiff to a physician or hospital for a cervical examination and fetal stress test. In reversing the lower court ruling, the Superior Court found that “while these [HMO] providers do not practice medicine, they do involve themselves daily in decisions affecting their subscriber’s medical care” such that they may “be held corporately liable for a breach of any of the Thompson duties which causes harm to its subscribers.” Id. at 835-36.

Despite the amplification of the corporate liability doctrine in Shannon, the Bradford County Court of Common Pleas later declined to apply the theory of corporate negligence to the Guthrie Clinic. See Johnson v. Wiseman, 3 Bradford 95, 97-98, 4-5 (1998). Three members of our own common pleas court have likewise concluded as a matter of law that the Penn State Geisinger Clinic may not be held corporately liable since it is a primary care facility, not a comprehensive health care center. See Dibble v. Penn State Geisinger Clinic, 42 D.&C.4th 225 (1999); Brewer v. Penn State Geisinger Clinic, no. 98-CV-733, Cottone, S.J., at p. 8 (Lacka. Cty. March 31, 2000); Hodle v. Fino, no. 99-CV-6006, Barrasse, J., at pp. 4-5 (Lacka. Cty. May 3, 2000) (“[t]he modem trend in Pennsylvania common pleas courts decisions is that the doctrine of corporate liability does not extend to clinics and doctors’ groups”). Additionally, a subsequent panel of the Dauphin County court has determined, albeit without any acknowledgment of President Judge Kleinfelter’s contrary ruling in Risser, that “the corporate negligence doctrine has not been extended to entities other than hospitals” and reasoned “that this doctrine applies only to hospitals and not to physician practices like Cardiovascular Surgical Institute.” Dowhouer v. Judson, no. 2548 S 1997, Lewis, J., at p. 6 (Dauph. Cty. March 10, 2000).

More recently, the federal district court in Fox v. Horn, 2000 WL 49374 (E.D. Pa. 2000), expanded Thompson liability to a medical professional corporation. In that case, an inmate at the State Correctional Institute at Graterford sued certain doctors and Correction Physician Services Inc., which had contracted to provide medical services at Graterford and had provided the physicians in question. The inmate challenged the “CPS policies, or lack thereof, with regard to the medical treatment of inmates and the hiring of doctors,” as well as “the adequacy of policies that CPS used to supervise [the attending physician].” Id. at **5-6. Relying upon the Shannon court’s application of “corporate negligence in the health care context to HMOs,” the district court predicted that corporate liability would be extended to a medical group such as CPS. Id. at *8. See also, “Liability and Indemnity Issues for Integrated Delivery Systems,” 40 St. Louis U.L.J. 457, 462 (1996) (discussing corporate liability of a managed care entity for utilization review and cost containment management resulting in harm to a patient).

(D) Outpatient Surgical Facilities

The LASIK procedure is performed on-site at NEI’s surgical facility with equipment that Oven contends was not properly provided and maintained by NEI. (See plaintiffs’ complaint, ¶26(1)).) As identified in the complaint, the NEI operation is similar in some respects to a freestanding surgical outpatient facility, FSOF, which historically has been distinguished from a private practice office. See e.g., Birth Control Centers Inc. v. Reizen, 508 F. Supp. 1366, 1385 n.29 (E.D. Mich. 1981). Based upon Oven’s allegations, it is conceivable that NEI violated the first duty articulated in Thompson by neglecting to properly calibrate and maintain the suction ring, micro-keratome or excimer laser used during Oven’s LASIK procedure, as a result of which an improper “shallow and thin cut” was made.

Additionally, Oven submits that NEI failed to retain adequately trained personnel to perform the procedure and neglected to implement appropriate protocols for LASIK surgery and post-operative treatment. Even prior to the advent of corporate liability, Pennsylvania courts recognized that hospitals and professional corporations have a duty to monitor the competency of their health care professionals. For example, in Kaskie v. Wright, 403 Pa. Super. 334, 589 A.2d 213 (1991), alloc. denied, 529 Pa. 634, 600 A.2d 954 (1991), a patient attempted to assert a claim for lack of informed consent against a physician who allegedly was an alcoholic and unlicensed to practice medicine in Pennsylvania. On appeal, the Superior Court affirmed the dismissal of the case on the basis of the expiration of the statute of limitations and the inapplicability of the informed consent doctrine to information involving the physician himself rather than the surgical procedure at issue. In so holding, the Kaskie court expressly stated:

“Matters such as personal weaknesses and professional credentials of those who provide health care are the responsibility of the hospitals employing them, the professional corporations who offer their services, or the associations which are charged with oversight. Their failure to fulfill their obligations in this regard becomes a matter of negligence, and it is from them that recovery must be sought. ” Id. at 341, 589 A.2d at 217. (emphasis added)

Thus, irrespective of the applicability of Thompson liability to medical groups, the foregoing language from Kaskie reflects that a professional corporation such as NEI has long been legally responsible for monitoring and evaluating the competency of health care professionals who practice there. Kaskie clearly states that if a professional corporation does not satisfy its duty to retain and offer only competent medical personnel, an injured patient may recover from that corporation for negligence. Consequently, the second duty identified in Thompson would likewise be applicable to the case sub judice based upon the averments of Oven’s complaint.

A person may not be a suitable candidate for LASIK surgery depending upon the patient’s degree of refractive error, pupil size, corneal curvature and thickness, and other preexisting medical conditions. See e.g., Waring, G.O., “Excimer Laser in Situ Keratomileusis Under a Corneal Flap for Myopia of 2 To 20 Diopters,” Am. J. Ophthalmol., 121:143-55 (1996); Marinho, A., “LASIK for High Myopia: One Year Experience,” Ophthalmic Surg. Lasers, 27 (Suppl) (1996). Granting Oven all reasonable inferences deducible from her allegations, see Main Line Health Inc. v. CAT Fund, 748 A.2d 66, 69 n.13 (Pa. Commw. 1999), the thickness of her cornea or the presence of other factors arguably may have contributed to “an improper, shallow and thin cut” being made, as alleged in the complaint. However, the LASIK surgery protocols and eligibility criteria that were allegedly promulgated by NEI may have enabled Dr. Pascucci to perform the procedure and Dr. Cimochowski to remove the protective bandage lens when it was not appropriate to do so. If the attending physicians merely followed NEI policies by the manner in which they operated on Oven and treated her postoperatively, liability could be imposed upon NEI based upon the fourth duty recognized in Thompson.

The averments of the complaint suggest that NEI is a separate entity with a distinct identity which offers outpatient surgery at its corporate facility. Pennsylvania courts have been more inclined to extend Thompson liability to professional corporations which own and operate enterprises where on-site surgery is performed. See e.g, Risser, supra (jaw surgery). Compare Dibble, supra (corporate negligence claim rejected in a malpractice action alleging failure to diagnose cancer rather than operative treatment). Since a demurrer may only be granted in cases where it is clear and free from doubt that the pleader cannot recover, and all doubts must be resolved in favor of denying the preliminary objections, see Edwards v. Germantown Hospital, 736 A.2d 612, 614 (Pa. Super. 1999), Oven’s corporate liability claim will survive the pleadings stage of this litigation.

Accordingly, Oven will be afforded the opportunity to explore via discovery whether NEI has committed systemic negligence which caused Oven’s unfavorable outcome. If the parties’ pretrial investigation does not establish corporate negligence by NEI which increased the risk of harm to Oven, NEI may revisit the viability of Oven’s corporate liability claim by filing a motion for summary judgment. In the interim, the preliminary objections seeking to dismiss Count IV of the complaint will be denied.

(E) Vicarious Liability of NEI

Even if NEI cannot be held corporately negligent, its preliminary objections should be denied since NEI may nonetheless be vicariously liable for the actions of Dr. Pascucci and Dr. Cimochowski. In the complaint, Oven avers that Dr. Pascucci and Dr. Cimochowski were shareholders and agents of NEI. As such, NEI may be held accountable for their alleged negligence based upon the principle of respondeat superior. Sinclair by Sinclair v. Block, 406 Pa. Super. 540, 558 n.20, 594 A.2d 750, 760 n.20 (1991), modified on other grounds, 534 Pa. 563, 633 A.2d 1137 (1994) (a professional coiporation is liable for any malpractice committed by its officers, shareholders or agents while they are rendering professional services). See also, Grubb v. Albert Einstein Medical Center, 255 Pa. Super. 381, 397, 387 A.2d 480, 488 (1978) (members of a medical partnership may be held liable for torts committed by a co-partner acting within the scope of the partnership’s business). Hence, NEI’s demurrer will likewise be denied on the grounds that NEI may be held vicariously liable.

ORDER

And now, June 9,2000, upon consideration of the preliminary objections of defendant, Northeastern Eye Institute Inc., seeking to dismiss Count IV of the complaint, the memoranda of law submitted by the parties and the oral argument of counsel on May 1, 2000, it is hereby ORDERED and DECREED that:

1. The preliminary objections of defendant, Northeastern Eye Institute Inc., are DENIED; and

2. Within 20 days of the date of this order, defendant, Northeastern Eye Institute Inc., shall file a responsive pleading to the complaint.

      . Laser assisted in situ keratomileusis, LASIK, is a relatively new surgical procedure for correction of myopia (nearsightedness), hypero-pia (farsightedness) and astigmatism. During the LASIK procedure, after the surface of the eye has been anesthetized by eyedrops, a microkeratome is used to create a flap in the outer layer of the comea which is folded back to allow an excimer laser access to the exposed comeal surface. Computer-controlled laser beams then remove thin layers of comeal tissue to reshape the curvature of the cornea so that visual images will focus directly onto the retina, thereby improving visual acuity. The comeal flap is returned to its original position without utilizing sutures, and a protective “bandage” contact lens is applied to prevent the eyelid from rubbing against the eye surface as the outer layer of cells regrow and the flap re-adheres. See generally, Lindstrom, R.L., “What Every General Practitioner Should Know About the Laser Vision Correction Revolution,” Manag. Care Interface (October 1999); Waring, G.O., “Excimer in situ keratomileusis LASIK,” Excimer Lasers in Ophthalmology: Principles and Practice, pp. 295-317 (Martin Dunitz 1997); Kremer, F.B., Dufek, M., Excimer Laser in Situ Keratomileusis,” J. Refract. Surg., Vol. 11 (1995).

      . The Superior Court of Pennsylvania subsequently clarified Kaskie and held that if the patient specifically questions the surgeon concerning his “competence, experience and expertise” and the surgeon “when answering [the] patient’s inquiries, misinforms the patient . . . and misleads the patient into believing that the hands of an experienced surgeon will be performing the operation,” the surgeon “does not have the true consent of that patient” and may be “subject to a claim of lack of informed consent.” Duttry v. Patterson, 741 A.2d 199, 201-202 (Pa. Super. 1999).


source: Caselaw Access Project

author: KENNEDY, J.,

license: Public Domain

text:
    Sullivan v. Modern Group Ltd.

      C.P. of York County,
    no. 96-SU-01671-01.

      Thomas W. Hall, for plaintiff.

      D. Holbrook Duer, for defendant Drexel Industries.
    April 11, 2000
   KENNEDY, J.,

This matter is before the court pursuant to the plaintiff’s motion to amend complaint, a motion for partial summary judgment and/or motion in limine, and a motion for summary judgment and Count II (strict liability).

The plaintiff seeks to add a claim for punitive damages to the complaint. The defendant has moved to exclude any evidence of any post-sale conduct, such as modifications or recalls, of the defendant with regard to the allegedly defective product. The defendant has also filed for summary judgment, claiming that misuse of their product is an absolute defense to Count II.

FACTS

The plaintiff, Nora Sullivan, was an operator of a forklift at the Peach Bottom Atomic Power Station. The plaintiff lifted a load of planks in the “front” position of the forklift. The load was carried well above the ground, some several feet. The planks would not fit through a fence and were rotated 90 degrees so that they would fit through the gate. When the load was rotated, the forklift tipped over to the side where the load was being carried, It came to rest on the “forks.” The plaintiff was injured when she was thrown from her seat. She suffered a concussion as a result of the accident.

ISSUES BEFORE THE COURT

(1) Does the plaintiff’s request to amend the complaint to demand punitive damages change the theory of recovery or operative facts of her suit in a manner that requires the court to deny her motion to amend her complaint?

(2) Should the court grant a motion in limine to exclude evidence of subsequent repairs or recalls?

(3) Should summary judgment be granted because the plaintiff misused the forklift?

AMENDING THE COMPLAINT-STANDARD OF REVIEW

Generally, the allowance of amendments to complaints is within the sound discretion of the trial court. Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 516 A.2d 299 (1986). Trial courts have latitude to ignore procedural defects and liberally permit amendments. Biglan v. Biglan, 330 Pa. Super. 512, 479 A.2d 1021 (1984). Despite the presumption in favor of liberal amendment, the right to amend is not absolute. Grim v. Betz, 372 Pa. Super. 614, 539 A.2d 1365 (1988). The court must refuse an amendment where it is proper to do so. City of Philadelphia v. Spencer, 139 Pa. Commw. 574, 591 A.2d 5 (1991).

In this case, we are faced with a motion to amend complaint where the central dispute is to whether the proposed amendments will create a new cause of action that would otherwise be time-barred. Our decision will be governed by the standard described by the Superior Court in Junk v. East End Fire Department, 262 Pa. Super. 473, 396 A.2d 1269 (1978).

“Amendments may not be made if they serve to introduce a new cause of action after the running of the statute of limitations. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 325, 319 A.2d 914, 918 (1974). See also, Goodrich-Amram 2d §1033.4; 3 Standard Pennsylvania Practice 656; 2B Anderson Pennsylvania Civil Practice §1033.7. The decision to grant or deny permission to amend is within the discretion of the trial court and we will reverse that decision only upon a showing of a clear abuse of discretion. Geiman v. Board of Assessment and Revision of Taxes, 412 Pa. 608, 614, 195 A.2d 352, 355-56 (1963).

“A cause of action in negligence has been defined as the negligent act or acts which occasioned the injury for which relief is sought. Cox v. Wilkes-Barre Railway Corporation, 334 Pa. 568, 570, 6 A.2d 538, 539 (1939); Martin v. Pittsburgh Railways Company, 227 Pa. 18, 20, 75 A. 837, 837 (1910). A new cause of action does not exist if plaintiff’s amendment merely adds to or amplifies the original complaint or if the original complaint states a cause of action showing that the plaintiff has a legal right to recover what is claimed in the subsequent complaint. Wilson v. Howard Johnson Restaurant, 421 Pa. 455, 460, 219 A.2d 676, 678-79 (1966); Arner v. Sokol, 373 Pa. 587, 591, 96 A.2d 854, 855-56 (1953); 3 Standard Pennsylvania Practice 682. A new cause of action does arise, however, if the amendment proposes a different theory or a different kind of negligence than the one previously raised or if the operative facts supporting the claim are changed. 2B Anderson Pennsylvania Civil Practice, §§1033.28 and 1033.31.” Junk v. East End Fire Department, 262 Pa. Super, at 490-91, 396 A.2d at 1277.

AMENDING THE COMPLAINT — DISCUSSION

As explained above, if the underlying facts contained in a complaint are sufficient to sustain punitive damages, amending the complaint to amplify an existing claim is permissible. What is impermissible is using the pretext of amending an existing count to charge a new count after the expiration of the statute of limitations applicable to the “new” count.

The amendments that the plaintiff proposes to make to the following changes to the complaint:

(26) In 1993, ANSI issued a standard that all fork lifts be fitted with seat belts. Thereafter, Drexel initiated a recall/retrofit program for its products; however, Drexel unreasonably limited the recall/retrofit program to products manufactured in or after 1993.

(27) Drexel’sfailure to include products manufactured prior to 1993 in its recall/retrofit program is outrageous behavior which evidences reckless indifference to the rights of others.

The changes that the plaintiffs seek to make to the complaint are essentially revisions and expansions of the ad damnum clauses of the negligence and strict liability counts of the complaint. Paragraph 27 is merely a conclusion of law, namely that the defendant’s behavior is outrageous. Therefore, we need to consider only the first sentence of the proposed amendment, or paragraph 26.

Since an amendment may only clarify an existing cause of action, paragraph 26 may not be the basis for a new claim. Therefore, the basis for punitive damages must exist in the complaint in its unmodified form. Otherwise, the proposed amendments constitute an impermissible attempt to create a new cause of action.

It is generally left to the fact-finder to determine whether punitive damages should be granted, but the court can decide the issue if no reasonable inference from the facts alleged supports an award of punitive damages. Eagle Traffic Control v. Addco, 889 F. Supp. 200 (E.D. Pa. 1995). Although this is an unremarkable case, we cannot say that no reasonable inference of facts would support an award of punitive damages under paragraphs 1-25 of the complaint. Accordingly, we are unwilling to take the relatively drastic step of keeping the punitive damages issue from the jury. The plaintiff’s petition to amend complaint is granted. We reserve any ruling on whether the punitive damages issue may be presented to the jury.

MOTION IN LIMINE

The second issue before the court is whether to grant the defendant’s motion in limine/motion for partial summary judgment. This motion consisted of two elements. We will address the motion in limine first, then address the motion for partial summary judgment.

Generally, it is impermissible for evidence of subsequent remedial measures to be used as evidence of negligence. This sort of evidence may be admissible in strict liability cases. This is the long-standing rule in the Commonwealth, and it was implemented to encourage the repair of dangerous conditions. At the present time, this issue is before the Pennsylvania Supreme Court which has granted allocatur in the case of Duchess v. Langston Corp., 709 A.2d 410 (Pa. Super. 1998). In Duchess, the Superior Court held that evidence of a design change subsequent to an accident is admissible.

The facts of this case involve not simply a design change, but also a recall. In Matsko v. Harley Davidson Motor Co. Inc., 325 Pa. Super. 452, 473 A.2d 155 (1984), the post-accident recall of a motorcycle was admissible in a strict liability case. While the forklift involved with this accident was not part of the recall, it suffered from the lack of operator restraints that was the reason for the recall of the later model forklifts. Whether it should have been recalled with the later model forklifts is a point of contention in this case.

' As discussed above, evidence of subsequent remedial measures is permitted in strict liability cases. The plaintiff has made a strict liability claim. The design changes made to the forklifts manufactured later are relevant where the design changes corrected the same problem that allegedly resulted in the plaintiff’s injury.

Unless the Supreme Court rules otherwise, we remain bound by the decisions of the Superior Court in Matsko and Duchess. Given the similarities between the facts of Matsko and Duchess with this case, we are compelled to deny the defendant’s motion in limine.

The second issue raised by the defendant is the motion for partial summary judgment. The defendant argues that there is no post-sale duty to warn consumers about technology changes or to retrofit the product. The defendant seeks to prevent the plaintiff from making any claim based on a post-sale duty to warn or retrofit the product, asking for summary judgment on the issue of whether a post-sale duty to warn existed.

The plaintiff has alleged that: (1) the forklift was defective; (2) the defect existed when it left the hands of the defendant; and (3) the defect caused the harm. The important distinction between Walton v. Avco Corp., 530 Pa. 568, 610 A.2d 454 (1992) and Lynch v. McStome and Lincoln Plaza Associates, 378 Pa. Super. 430, 548 A.2d 1276 (1988) is that in Walton, it was determined that a post-sale duty to warn existed where the product was detective from the date of the manufacture and where the manufacturer had notice of the defect. In Lynch, the product was not defective at the time of the sale, and no post-sale duty to warn existed.

From what has been presented to the court to this point, it appears that Walton rather than Lynch will be controlling. The defendant’s motion for partial summary judgment is denied.

DISCUSSION — MISUSE OF THE PRODUCT

The final issue before the court is the defendant’s motion for summary judgment relating to misuse of the product.

Evidence of a product’s misuse is admissible insofar as it relates to causation. Charlton v. Toyota Industrial Equipment, 114 A.2d 1043, 1047 (Pa. Super. 1998). If an accident is solely the result of the plaintiff’s negligence and the accident is unrelated to a product defect, then evidence of misuse is inadmissible. Id.

In this case, the plaintiff used the forklift to move heavy items around the Peach Bottom Atomic Power Station. This is clearly an intended use for a forklift. There is evidence that the plaintiff did overload the forklift significantly, but the forklift was being used in a manner consistent with its intended purpose. We cannot say that, as a matter of law, the product was being misused.

Questions remain about whether the manuals and the warnings relating to the product, other than those on the fork lift itself, were available to the plaintiff or whether they were sufficient. It is also unclear whether the plaintiff had any choice in encountering the risk.

Viewed in the light most favorable to the non-moving party, these disputed issues are genuine and material and cannot be resolved in favor of the moving party. For this reason, we are unable to grant the defendant’s claim for summary judgment on this issue.

ORDER

(1) The plaintiff’s motion to amend complaint is granted.

(2) The defendant’s motion in limine is denied.

(3) The defendant’s motion for partial summary judgment on the post-sale duty to warn issue is denied.

(4) The defendant’s motion for summary judgment on the misuse of the product issue is denied.

The prothonotary of York County shall provide notice of this memorandum and order as required by law.


author: MOTT, J.,

text:
    Johnson v. Wiseman

      C.P. of Bradford County,
    no. 98CV000393.

      Clifford A. Reiders, for plaintiffs.

      Mark T. Perry, for defendant Wiseman.

      John Q. Durkin, for defendants Cambell, Huber, Chamberlain, Mann, Robert Packer Hospital and Guthrie Healthcare System.

      David W. Saba and Lara A. Endler, for defendants Bello-Lim, Coleman and Guthrie Clinic Ltd.
    March 22, 2000
   MOTT, J.,

In this matter, the issue is the extent of the protection afforded by the Pennsylvania Peer Review Protection Act. In the context of a broader medical malpractice claim, the plaintiffs conducted a deposition of Barbara L. Wiseman M.D., the defendant. In response to certain questions during the deposition, Dr. Wiseman, upon advice of counsel, claimed the protection of the Act. As a result, the plaintiffs filed this motion to compel further deposition testimony of Dr. Wiseman.

The facts are as follows: On April 5, 1998, Aaron Michael Johnson was stillborn at the Robert Packer Hospital. He was the child of Jill C. Johnson and Shawn M. Johnson, the plaintiffs. The plaintiffs allege that the child died because of negligence on the part of the defendants. Approximately one month after the death of the child, Dr. Wiseman participated in a meeting with other hospital personnel at which the delivery of this child was discussed. At the deposition of Dr. Wiseman, when counsel for the plaintiffs attempted to elicit details of this meeting, counsel for the defendant allowed Dr. Wiseman to answer factual questions in regards to the meeting for the purpose of allowing the plaintiffs to formulate an opinion as to whether the meeting was peer review related. However, counsel directed her not to answer questions relating to substantive information conveyed at the meeting, claiming that this information was protected by the Act. Our task here is to determine whether the meeting satisfies the peer review requirements as set forth in the Act, thereby shielding discovery of all substantive information conveyed at the meeting.

Pertinent to the matter sub judice, the Act provides:

“The proceedings and record of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of matters which are the subject of evaluation and review by such committee...Section 4 of the Act, 63 P.S. §425.4. (emphasis added)

Due to the broad scope afforded discovery, a party asserting a limitation on discovery has the burden of establishing that limitation. Mazzucca v. Methodist Hospital, 47 D.&C.3d 55, 62-63 (1986). See also, 6 Standard Pennsylvania Practice 2d §34.22. Here, counsel for Dr. Wiseman attempts to meet this burden only by asserting that the meeting satisfies the peer review requirements of the Act, and that, therefore, the Act bars the plaintiffs’ questions about that meeting. In weighing that assertion, we recognize that the ultimate objective in interpreting a statute is to effectuate the intent of the legislature. 1 Pa.C.S. §1921(a). In interpreting a statute, however, we are not, under the pretense of pursuing the spirit of the statute, to ignore the letter of its clearly and unambiguously expressed language. 1 Pa.C.S. § 1921 (b); McClellan v. Health Maintenance Organization of Pennsylvania, 442 Pa. Super. 504, 510-11, 660 A.2d 97, 100 (1995), aff’d, 546 Pa. 463, 686 A.2d 801 (1996). It is clear from the Act’s language that only discussion conducted at a peer review meeting is protected from discovery.

Reviewing the record and the arguments presented, we cannot find that it has been proven that the meeting satisfied the peer review requirements set forth in the Act. Dr. Wiseman admitted that the meeting did not have a committee name attached to it. (N.T., 6/15/99, Barbara Wiseman M.D., p. 72.) She also conceded that it was not a meeting of an established committee. (N.T., 6/15/99, Barbara Wiseman M.D., p. 74.) Additionally, she stated that, “The meeting came into being because we wanted to discuss again if there was an explanation since we had no explanation.” (N.T., 6/15/99, Barbara Wiseman M.D., p. 74.) Moreover, no one has pointed to any evidence which would indicate that there was a written record, of any kind, produced at the meeting. (N.T., 6/15/99, Barbara Wiseman M.D., p. 75.) Further, the privilege against discovery granted by the Act is extended only when the requested discovery relates to a review committee established by some definitive action prior to the time of review. Steinbacher v. Mariano, 19 D.&C.4th 399, 406 (1992) (citing Mazzucca v. Methodist Hospital, supra at 60). No one has pointed to any evidence contained in the record which demonstrates that definitive action was taken prior to the subject meeting for the purpose of establishing a review committee. In fact, it is apparent that the meeting was not one of an established committee at all, but, rather, was an “ad hoc” meeting of an “ad hoc” committee. Thus, the meeting does not appear to fall within the peer review requirements of the Act, and it certainly has not been demonstrated how the meeting falls under the protection of the Act. As a result, Dr. Wiseman has not met her burden of establishing a limitation to discovery. Therefore, the plaintiffs’ motion to compel additional deposition testimony of Dr. Wiseman, concerning the substantive information conveyed at the meeting, will be granted.

Subsequent to the deposition of Dr. Wiseman, counsel for Cindy Mann RN, another defendant, provided the plaintiffs’ counsel with five pages of notes, concerning the events of this case, written by Cindy Mann. The plaintiffs assert that these notes contradict the deposition testimony of Dr. Wiseman, and, therefore, they request permission to question her about these contradictions at further deposition. Dr. Wiseman does not dispute the plaintiffs’ assertion that the notes contradict her earlier deposition testimony, nor does she assert any privilege which barred discovery of the notes. Certainly, matters contradicting the testimony of Dr. Wiseman may be relevant to these proceedings. Thus, we find this to be a reasonable request in that allowing a second deposition of Dr. Wiseman may well rectify or explain the contradictions. Therefore, the plaintiffs also will be allowed to question Dr. Wiseman at further deposition about any inconsistencies between her earlier deposition testimony and the notes written by Cindy Mann.

Accordingly, we enter the following:

ORDER

And now March 22,2000, in accordance with the opinion filed this date, the plaintiffs’ motion to compel further deposition testimony of the defendant, Barbara Wiseman M.D., is granted. At the said deposition, the plaintiffs will be limited to asking questions concerning the substantive information relating to the death of Aaron Michael Johnson conveyed at the meeting held approximately one month after the child’s death and attended by Barbara Wiseman M.D., and concerning any inconsistencies between Dr. Wiseman’s earlier deposition testimony and the notes written by the defendant, Cindy Mann.

      . Act of July 20, 1974, P.L 564, no. 193, §1 et seq., as amended, 63 P.S. §425.1 et seq.


author: FARINA, J.,

text:
    Goodville Mutual Casualty Company v. Tripp
    C.P. of Lancaster County,
    no. CI-98-07264.

      Jeffery D. Wright, for plaintiff

      Edith A. Pearce, Glenn A. Ricketti, Scott A. Bennett and Richard W. Johnson, for defendants.
    March 17, 2000
   FARINA, J.,

Before this court are the cross-motions for summary judgment filed by plaintiff Goodville Mutual Casualty Insurance Company and defendants Harold R. Tripp Jr., Susan B. Grant, Southeastern Pennsylvania Transportation Authority, Carl P. Warner, Warner Construction Inc. and Joseph James. In this declaratory judgment action, Goodville seeks a determination whether they must provide a defense and indemnification to defendant Tripp under certain insurance policies. Goodville requests summary judgment in their favor, against defendants and a declaration that they have no such duty. Defendants oppose, filing cross-motions in their favor, and claim coverage is due Tripp under his commercial liability policy with Goodville.

This action arises from a motor vehicle accident which occurred on Route 252 in Chester County, Pennsylvania. On November 18, 1997, at approximately 6 p.m., defendants Harold R. Tripp Jr. and Carl Warner arrived on Harrow Lane, a side street of Route 252, for the purposes of delivering a backhoe to a nearby landscaping job being performed by Tripp. Warner was using his corporation’s dump truck and trailer to deliver the backhoe as a favor to Tripp. Tripp was a passenger in the dump truck driven by Warner. At the time, Tripp was a self-employed landscaper. After unloading the backhoe, Tripp drove the backhoe off the trailer and onto a nearby piece of property where he would eventually be performing the landscaping services. Warner, after examining Harrow Lane and realizing that it was a dead end, concluded that he had no recourse other than to back out onto Route 252. When Warner was ready to back up, Tripp located himself at the right end of the trailer to signal to Warner when to begin backing up his vehicle. During this process, Tripp noticed the headlights of an approaching vehicle and told Warner to stop the vehicle. Tripp then left the roadway and went to a grassy area on the side of the road. The headlights turned out to be a SEPTA bus. The SEPTA bus, driven by defendant Joseph James, struck the back of Warner’s trailer. Following impact, the bus crossed over into oncoming traffic and landed on top of defendant Susan Grant’s vehicle. As a result, Grant received substantial injuries.

On March 31, 1997, Grant commenced a civil action in the Philadelphia County Court of Common Pleas, naming SEPTA, Joseph James, Carl Warner, Warner Construction and Harold Tripp as defendants. On June 29, 1998, Goodville filed this declaratory judgment complaint, seeking a declaration that they have no duty to defend or indemnify Tripp.

There is no dispute that at the time of the accident, Tripp was insured by Goodville under a commercial liability policy, a personal auto policy and a homeowners policy. Tripp had no commercial auto policy because he did not have any commercial motor vehicles. Goodville is attempting to deny coverage under all three policies. Defendants have conceded that Tripp is not owed coverage pursuant to his personal auto policy and homeowners policy because of the applicability of policy exclusions for incidents arising out of commercial activity of an insured; however, they argue that Tripp is owed a defense and indemnification under Tripp’s commercial liability policy with Goodville. Goodville does not dispute that Tripp was engaged in his trade, profession or occupation as a landscaper at the time of the accident, thus triggering coverage under the commercial liability policy. Therein Goodville agreed to “pay all sums which an insured becomes legally obligated to pay as damages due to bodily injury or property damage to which this insurance applies.” But Goodville contends a coverage exclusion for “bodily injury or property damage that arises out of the ownership, operation, maintenance, use, occupancy, renting, loaning, entrusting, supervision, loading or unloading of (b) an auto ...” is applicable because Tripp was “using” or “supervising” the Warner vehicle at the time that Warner’s vehicle was struck by the SEPTA bus. All parties agree construction of the terms “use” and “supervision” will be dispositive of the parties claims and that the case, since there are no disputed material facts, is appropriate for disposition by summary judgment.

RULES OF CONSTRUCTION

When construing insurance policies, we are guided by well-established principles of construction. Coverage clauses in liability policies are to be broadly construed to afford the insured the greatest protection possible. Miller v. Prudential Insurance Company of America, 239 Pa. Super. 467, 362 A.2d 1017 (1976). Exceptions to or exclusions from coverage are to be strictly construed against the insurance company and in favor of the insured. Slate Construction Co. v. Bituminous Casualty Corp., 228 Pa. Super. 1, 323 A.2d 141 (1994). When an insurance policy contains ambiguous language the language is to be construed in favor of the insured and against the insurer, the drafter. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983). Insurers may not enforce overly-subtle or technical interpretations in an unfair attempt to defeat the reasonable coverage expectations of an insured. Hartford Mutual Insurance Co. v. Moorhead, 396 Pa. Super. 234, 240, 578 A.2d 492, 495 (1990).

USE

It is Goodville’s position that the interaction between Tripp, who was standing outside of the vehicle, and Warner, who was operating the vehicle, was sufficient to constitute Tripp’s “use” of the vehicle. Use is not defined in Tripp’s commercial liability policy. Likewise, we are not aware of any case in Pennsylvania that has addressed whether someone outside of a vehicle who provides the driver with direction is “using” the vehicle. The closest fact pattern we have found is the Pennsylvania federal case of Aul v. United States Fidelity and Guaranty Co., 692 F. Supp. 585 (W.D. Pa. 1988). There, the district court ruled that a passenger who directed the driver that it was clear to back his vehicle was held to be using the vehicle. The court specifically noted, however, that they were not ruling upon whether use could extend to someone directing the driver who was outside the vehicle. “We thus refrain from considering ... if one can ‘use’ an automobile without occupying it.” Id. at 587. Here, clearly Tripp was not occupying the vehicle, thus Aul is of little guidance.

In Erie Insurance Exchange v. Transamerica Insurance Co., 516 Pa. 574, 582, 533 A.2d 1363, 1367 (1987) the court discussed the meaning of the term “use” in an automobile insurance policy. Although the facts are not applicable here, the court’s cautionary guidance concerning construction of the term is instructive: “if the term ‘use’ is construed to embrace all of its possible meanings and ramifications, practically every activity of mankind would amount to a ‘use’ of something. However, the term must be considered with regard to the setting in which it is employed.” State Farm Mutual Automobile Insurance Co. v. O’Brien, 380 F. Supp. 1279, 1281 (1974).

Guided by Erie, we therefore consider the meaning of “use” in a commonsense context of use of an automobile.

While Pennsylvania has not yet decided whether someone outside the automobile directing the driver (sometimes referred to as a spotter) is using the vehicle, other jurisdictions have and are split. We will review the authorities cited and discussed by the parties.

In Apcon Corp. v. Dana Trucking, 25 Ill.App.3d 973, 623 N.E.2d 806 (1993), the Illinois court held that a road contractor’s directing movements of a subcontractor’s truck through use of hand signals was not a use of the truck for purposes of the subcontractor’s liability policy. The court held that if the spotter was determined to be using the vehicle then “would not a store employee’s directing a delivery truck where to park by pointing, or a police officer directing a motorist where to go by hand signals, also be ‘use’ of a vehicle within the meaning of similar policies.” Id. at 811. The Illinois court concluded “in order to constitute ‘use’ or to be a ‘user’ under the policy, such as to be an insured, one must be in operation of the vehicle.” Id. (emphasis added)

In J. Scheer & Sons Co. v. Travelers Indemnity Co., 35 Misc.2d 262, 229 N.Y.S.2d 248 (1962), the New York court held that the actions of a construction contractor’s employee in directing a concrete mixing truck driver with respect to overhead clearance of sprinkler heads was not “use” of the truck as to bring the contractor within the truck owner’s liability insurance coverage. The contractor’s “commonplace act of accommodation” did not take the control of the vehicle out of the hands of the driver. Id. at 251.

In Nicollet Properties Inc. v. St. Paul Mercury Insurance Company, 271 Minn. 65, 135 N.W.2d 127 (1965), the Minnesota court held that a drive-in theater’s employee who stood near an adjacent highway and indicated to perspective patrons the entrance to the theater area, was not using the automobile which, while turning into the entrance was involved in a collision. The court concluded that the drive-in theater employee’s function was that of a mechanical device indicating the entrance to parking areas and this was too remote to constitute “use.”

In Wellman-Lord Engineers Inc. v. Northwestern Mutual Insurance Co., 222 So.2d 436 (Fla. Dist. Ct. App. 1969), the Florida court held that a general contractor, whose employee directed a truck driver to drive so close to the edge of a pit that the truck fell in, injuring the driver, was not using the truck. The Florida court held that “mere giving directions for a movement is not such ‘use’ of the truck as to bring the contractor within the truck’s liability insurance coverage.” Id. at 438.

The seminal case to the contrary is Woodrich v. Indemnity Insurance Company of North America, 252 Minn. 86, 89 N.W.2d 412 (1958). There, the Minnesota court found that the actions of a turntable operator, giving directions to the driver of a truck while the driver was backing up, constituted use of the vehicle. The Minnesota court held that “where, as an incident of and in furtherance of road construction work, a general contractor assumes active control or guidance of a backward movement of a truck provided by a subcontractor, and his negligence in the exercise of that control or guidance is a proximate cause of the accident, the general contractor thereby participates in the operation of the track to such an extent as to be a user of the vehicle.” Id. at 418.

In Liberty Mutual Insurance Company v. American Mutual Liability Insurance Company, 28 N.J. Super. 17, 99 A.2d 815 (1953), an employee of a lumber company drove a lumber track to a construction site and began unloading the lumber by using a crane. The lumber was being unloaded onto the roof of the building under construction and the crane operator could not see where the lumber was going. The contractor’s site foreman stood on the roof and signaled for the lowering of the lumber. While the crane was being operated, a load of lumber struck and injured an individual on the roof. The New Jersey court concluded that “the effect of the action of the foreman was to make the crane operator a mere automaton; he was in effect a blind man and engaging in the particular operation of his crane merely as an instrumentality responding to the will of the (site foreman).” Id. at 816-17. The contractor was held to be reponsible for the use of the crane.

With the cautions of Erie to not embrace all possible meanings and ramifications of use as our only Pennsylvania guidance, rales of constructions that require us to construe language of exclusion strictly and coverage broadly, ambiguous language in favor of the insured, and where other courts considering the issue have decided it differently, we find that it is reasonable to assume that an insured in the position of Tripp, performing an activity otherwise covered by his commercial insurance policy, would not know nor expect that directing the movement of a vehicle, owned by another, from a position outside of the vehicle, would result in such activity being determined “using” the vehicle so as to cause his otherwise covered activity to be excluded from insurance coverage.

We believe to construe “use” so as to include Tripp’s actions as a spotter for Warner, is to employ the kind of all encompassing expansive definition of the term that Erie condemned. The only two cases so defining use cited by plaintiff are distinguishable.

In Woodrich, the court was guided by the fact that a general contractor took control of the backward movement of a subcontractor’s truck in a common project:

“Where, as an incident of and in furtherance of his construction work, a general contractor assumes active control or guidance of a backward movement of a truck provided by a subcontractor, and his negligence in the exercise of that control and guidance is a proximate cause of the accident, the general contractor thereby participates in the operation of the track to such an extent as to be a user of the vehicle.” Id. at 418.

In this case, there was no contractual relationship between Tripp and Warner. Tripp was not a general contractor. He did not have a contractual right and/or contractual duty to direct Warner’s movements. There was no agent/servant, master/servant or employer/employee relationship between them. Tripp’s actions are better described as a “commonplace act of accommodation that did not take control of the truck out of the hands of the driver.” J. Scheer & Sons Co. v. Travelers Indemnity Co., at 251. Woodrich is against the weight of authority (see cases cited supra) and was cited with disapproval and specifically rejected by Apcon Corp. v. Dana Trucking (“we reject the reasoning of... Woodrich”). Id. at 811.

Plaintiff’s reliance on Liberty Mutual Insurance Co. v. American Mutual Liability Insurance is similarly misplaced. That case involved a contractor’s site foreman directing an employee on the job site in furtherance of a construction project. The court in Liberty Mutual found determinative that the crane operator “was a mere automaton; he was, in fact, a blind man engaging in a particular operation of his crane merely as an instrumentality responding to the will of the [site foreman].” Id. at 816-17. Such description does not fit Warner. It is undisputed Warner could see northbound traffic going past his trailer as he was backing up. Unquestionably, his view was restricted by the trailer and that is why Tripp assisted, but Warner was not blind or a mere automaton.

We are persuaded that the usual meaning of the word “use,” in the context of use of an auto, does not include conduct as engaged in by Tripp, when he for a very brief time served as an outside spotter aiding Warner by signaling as he was backing up his vehicle onto the highway. While he aided the user, he had insufficient authority over the operation and control over the actual operation of the vehicle to be deemed its user.

SUPERVISION

The Goodville commercial policy excludes from its liability coverage any claims for bodily injury or property damage that arises out of the insured’s “supervision” of an auto. It is Goodville’s position that Tripp exercised supervision when he assisted Warner in backing his vehicle out of Harrow Lane.

As with the term “use,” “supervision” is not defined in the Goodville policy. In an insurance contract, words of common usage must be construed in their natural, plain and ordinary sense and the court may determine its understanding of such terms by considering their dictionary definitions. Riccio v. American Republic Insurance Company, 550 Pa. 254, 705 A.2d 422 (1997).

There are many dictionary definitions of supervise and related terms. Webster’s II, New College Dictionary, defines supervise as “to direct and watch over the work and performance of.” Webster’s New Universal Dictionary, 183 (2d ed. 1983) defines supervision as “supervising or being supervised; direction; superintendence.” Superintendence is defined as “care and oversight for the purpose of direction, and with authority to direct.” “Supervision” is defined in Black’s Law Dictionary, 6th Edition (1990) as “An act of occupation or supervising, inspection.” Supervise is defined as “To have general oversight over, to superintend or to inspect.” Supervisor is defined in pertinent part as “In a broad sense, one having authority over others, to superintend and direct.” Superintend is defined as “To have charge and direction of; to direct the course and oversee the details, to regulate with authority; to manage; to oversee with the power of direction; to take care of with authority.”

The Pennsylvania Supreme Court in Swartley v. Harris, 351 Pa. 116, 118, 40 A.2d 409, 410 (1944), although in. an unrelated legal context, addressed the definition of supervise. The court used the Webster’s New International Dictionary and determined supervise to mean “to oversee for direction, to superintend; to inspect with authority.”

From examining these definitions, it is apparent that the term “supervision” has a range of meanings from a general or expansive definition of directing and watching over, to a more narrow definition that requires an element of control and authority. The Pennsylvania Supreme Court, when determining the definition of supervise, included the element of control. We observe that supervision is not a common term used in connection with vehicles or transportation and are unaware of any cases that interpret supervision of an automobile in Pennsylvania or in any other jurisdiction. As was the case in construing the term “use,” Erie requires us to construe “supervision” in the context of supervision of an automobile, and its caution to not be all encompassing applies equally here. So restricted, we find the language “supervision of an auto” as used in Goodville’s policy to be ambiguous. In the most expansive sense of the term, Tripp did supervise as he directed and watched over Warner’s backing up of the truck. However, Tripp had no authority or control over Warner. There was no formal relationship arising out of contract or employment. Tripp’s only authority, if any, came from the consent of Warner to be directed by Tripp. Such consent is transitory at best, capable of being withdrawn at any time for any reason. Tripp was merely providing assistance and guidance to Warner as an accommodation to a friend. Warner was free to reject Tripp’s assistance and guidance at any time. Warner controlled every critical function of operating and moving his vehicle. So viewed, the supervision of Tripp does not meet the restrictive definition of supervisor as one who has authority over the su-pervisee.

Without a definition of “supervision” in the policy, an insured cannot discern in which sense the term is being employed. In such cases, our direction is clear. The term is ambiguous and must be construed in favor of the insured and against exclusion from coverage. In close or doubtful insurance cases, coverage for the insured is to be found. If we should err in determining the meaning of an insurance policy provision, our error should be in favor of coverage for the insured. Allstate v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). To do otherwise would defeat an insured’s reasonable expectation of coverage. In conformance with rules of construction, the ambiguity of the phrase “supervision of a vehicle” must be construed against the drafter, Goodville. So construed, Tripp was not supervising the Warner vehicle and the exclusion is not applicable.

Accordingly, we enter the following:

ORDER

And now, March 17, 2000, upon consideration of the cross-motions for summary judgment filed by the parties, it is ordered and directed as follows:

(1) Summary judgment is entered in favor of plaintiff Goodville Mutual Casualty Company and against defendants Harold R. Tripp Jr., Susan B. Grant, Southeastern Pennsylvania Transportation Authority, Carl P. Warner, Warner Construction Inc. and Joseph James on Counts II and m of plaintiff’s complaint, declaring that Goodville owes no duty to defend and indemnify defendant Harold R. Tripp Jr. in the matter of Grant v. SEPTA, Phila.C.C.P, March term 1998, no. 4650 under Goodville’s personal auto policy (Count II) and homeowner’s policy (Count III) issued to Harold R. Tripp Jr.

(2) Summary judgment is entered in favor of defendants Harold R. Tripp Jr., Susan B. Grant, Southeastern Pennsylvania Transportation Authority, Carl P. Warner, Warner Construction Inc. and Joseph James and against Goodville Mutual Casualty Company on Count I of plaintiff’s complaint, declaring that Goodville owes a duty to defend and indemnify defendant Harold R. Tripp Jr. in the matter of Grant v. SEPTA, Phila.C.C.P., March term 1998, no. 4650, under Goodville’s commercial liability policy (Count I) issued to Harold R. Tripp Jr.


author: CORBETT, J.,

text:
    Piper-Ochab v. Guthrie Clinic Ltd.

      C.P. of Lackawanna County,
    no. 98-CV-5691.

      John T McLane, for plaintiffs.

      Judith W. Daley, for defendants Guthrie Clinic and Levitt.

      John Q. Durkin, for defendant Robert Packer Hospital.
    January 20, 2000
   CORBETT, J.,

Before the court is the motion for reconsideration of the defendant, Guthrie Clinic Ltd. On December 8, 1999, the defendant filed the present motion for reconsideration and stay of this court’s order and opinion dated November 29,1999. Oral argument was heard on December 27,1999, and the parties have briefed their respective positions. Thus, this matter is ripe for disposition.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The plaintiffs instituted this medical malpractice action on November 19, 1998. The complaint states that the wife-plaintiff, Carol Piper-Ochab, was a patient of the defendant, Jodie K. Levitt M.D., at Guthrie Clinic Ltd. On November 21, 1996, the defendant physician admitted wife-plaintiff to the Robert Packer Hospital, and the plaintiffs allege that the defendant physician negligently performed a surgical procedure on her at the hospital.

The plaintiffs allege that the defendants, Guthrie Clinic Ltd. and Robert Packer Hospital, employed the defendant physician as a neurosurgeon. The plaintiffs allege, inter aha, that the defendant hospital and defendant clinic were negligent in extending privileges to Jodie K. Levitt M.D. to perform the November 21,1996 surgery and/or failing to restrict the procedures performed by the doctor to those which she had adequate experience in performing.

During the course of discovery, the plaintiffs served a request for the production of documents on the defendant clinic, and the defendant clinic raised objections to the production of certain documents. Therefore, the plaintiffs presented to the court a motion to compel production of documents. Oral argument was heard on October 25, 1999. This court issued an order on the same date, wherein the defendant clinic was ordered to produce certain documents at issue. Additionally, by the same order of the court, the plaintiffs and the defendant clinic were ordered to file briefs on their respective positions (1) with respect to the plaintiffs’ request for the application of employment of the defendant, Jodie K. Levitt M.D., and (2) with respect to the plaintiffs’ request for all correspondence to any medical search firms.

The plaintiffs and the defendant clinic filed their respective briefs on October 29, 1999. On November 29, 1999, this court issued an opinion and order wherein the defendant clinic was ordered to provide the plaintiffs with a copy of the application of employment of the defendant, Jodie K. Levitt M.D., within 10 days.

On December 8, 1999, the defendant clinic filed this motion for reconsideration and stay of order dated November 29, 1999. The plaintiffs filed a response to defendant clinic’s motion, and oral argument was heard on December 27, 1999.

DISCUSSION

The defendant clinic asserts two arguments in its motion for reconsideration which this court will address seriatim.

I.

The defendant clinic first asserts that the instant motion was filed because "the court was under the impression that the doctor's application was not reviewed by the clinic review committee as defined by the Act." The court finds this statement disingenuous. The court was not under any misimpression as the defendant clinic suggests. Before rendering a decision in this matter, this court reviewed the record, as the court does in all cases. At the time the court rendered a decision in this matter, the record was void of any averment by the defendant clinic that the defendant physician's application for employment was submitted to the defendant clinic's review committee. At this late date, the defendant clinic attempts to add to the record by attaching to its motion a verification by Dr. Scopelliti, executive vice president of clinical affairs of Guthrie Clinic Ltd., wherein Dr. Scopelliti states that the application of the defendant physician was submitted to him as the peer review individual. See defendant clinic’s motion for reconsideration, exhibit “C.” This court, however, has not enlarged the time for submission of further documentation with respect to the application for employment of the defendant physician. Therefore, the court will not consider this additional document.

The defendant clinic also misstates the opinion of this court. In its brief in support of motion for reconsideration, the defendant clinic states that “Dr. Scopelliti states in his verification that the peer review questionnaire was submitted and reviewed, and, therefore, as this court pointed out, it would come under the protection of the Peer Review Act.” Contrary to the defendant clinic’s statement, this court did not state in the opinion that under the aforementioned circumstances, the application for employment would be protected by the Peer Review Protection Act. Rather, the defendant clinic’s statement directs itself to the language found in the opinion of the court in Fetterman v. Haba, 47 D.&C.3d 435 (Jefferson Cty. 1987). This court found the circumstances in the Fetterman case distinguishable from the case sub judice. Moreover, this court does not agree with the reasoning as set forth in the Fetterman case. Rather, as stated in the opinion of this court, we found the reasoning of the court in Fowler v. Pirris, 34 D.&C.3d 530 (Washington Cty. 1981) convincing in this matter. The Fowler court employed the following reasoning:

“Peer review is defined in the PRPA as a review ‘of services ordered or performed by other professional health care providers.’ The records of such reviews are kept confidential in order to improve the quality of care, reduce morbidity and mortality and to keep the cost of care within reasonable bounds. The application of Dr. Pirris is not a document that reviews the services of another health care provider. In fact, it does not review ‘services ordered’ at all; it is a recital in the applicant’s own words of what qualifications he believes he has that would entitle him to a staff position. Consequently, the application is not a peer review within the definitional section of the PRPA.” Id. at 535-36. (footnote omitted)

II.

Secondly, the defendant clinic seeks reconsideration because "[t]his court also appeared to rely on the doctrine of corporate liability, as enunciated in Thompson v. Nason Hospital, [as] an additional reason for requiring the clinic to produce the doctor's employment application." The defendant clinic argues that the doctrine of corporate liability does not apply to Guthrie Clinic Ltd., and, therefore, it cannot be the basis for requiring the production of the defendant physician's application for employment. In support thereof, the defendant clinic cites to Dibble v. Penn State Geisinger Clinic Inc., 42 D.&C.4th 225 (1999), wherein the Honorable Carmen Minora granted the preliminary objection in the nature of a demurrer of the defendant, Penn State Geisinger Clinic, to plaintiffs’ claim of corporate liability. See defendant clinic’s motion for reconsideration, exhibit “E.”

Additionally, the defendant clinic cites to two additional court of common pleas cases in support of its argument that the doctrine of corporate liability does not apply to a professional corporation of physicians such as Guthrie Clinic Ltd. See defendant clinic’s motion for reconsideration, exhibit “F,” Johnson v. Wiseman, 3 Bradford 95 (1998) and exhibit “G,” Wickham v. Suprock, 82 Erie L.J. 109 (1998). However, this court will limit its review to the Dibble case, supra, because it is the only decision from the Court of Common Pleas of Lackawanna County cited by the defendant clinic.

With all due deference to Judge Minora’s learned opinion, the Dibble case and the case sub judice are procedurally distinguishable. In the former case, Penn State Geisinger Clinic’s preliminary objection in the nature of a demurrer to the plaintiffs’ claim of corporate liability was before the court. The case before this court, however, is at the discovery stage. Moreover, upon a thorough review of the record, this court finds that the defendant clinic failed to raise a preliminary objection in the nature of a demurrer to the plaintiffs’ claim of corporate liability against the defendant clinic. Consequently, the plaintiffs’ corporate liability claim remains a viable claim in this case, and this court’s review is limited to discovery issues. Assuming, as we must, that the corporate liability claim remains in this case, our analysis in the opinion of this court dated November 29,1999, with respect to Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991) remains sound, and the application for employment of the defendant physician is discoverable under the Thompson theory.

Our reading of the Dibble opinion indicates that Judge Minora ruled that the corporate liability claim was barred as a matter of law, based upon the facts as set forth in the plaintiffs’ complaint. In the case sub judice, if discovery fails to meet the Thompson test, then a motion for summary judgment with respect to the plaintiffs’ corporate liability claim may be appropriate; however, it is premature at this time for this court to make such a ruling.

This court finds the foregoing arguments of the defendant clinic are without merit. Thus, the motion for reconsideration of the defendant clinic is denied. An order consistent with this memorandum will follow.

ORDER

And now, January 20, 2000, consistent with the foregoing memorandum, it is hereby ordered and decreed that the motion for reconsideration of the defendant, Guthrie Clinic Ltd., is denied. It is further ordered and decreed that the defendant, Guthrie Clinic Ltd., shall provide the plaintiffs with a copy of the application of employment of the defendant, Jodie K. Levitt M.D., within 10 days of this order.

      . The opinion did not address the plaintiffs' request for the production of all correspondence with any medical employment search firms concerning the defendant physician since the defendant clinic averred in its brief that no such correspondence exists.


author: BLACK, J.,

text:
    Kitzmiller v. Zeitner
    C.P. of Lehigh County,
    no. 96-C-1852.

      Joseph P. Novak, for plaintiffs.

      Paul G. Lees, for defendants.

      March 31, 2000
   BLACK, J.,

This case arises from a motor vehicle collision in which an automobile operated by plaintiff Anita Kitzmiller was struck from the rear by a tractor-trailer operated by defendant Thomas Zeitner. Plaintiffs seek to recover damages for personal injuries allegedly sustained by Mrs. Kitzmiller in this accident. After a jury trial, in response to special interrogatories, the jury found that defendants were negligent, but that this negligence was not a substantial factor in causing harm to plaintiffs. We then molded a verdict in favor of defendants.

Plaintiffs have moved for a new trial on two grounds. First, they contend that the jury verdict was against the clear weight of the evidence. Second, they contend that the trial court erred in admitting into evidence photographs of plaintiffs’ vehicle taken after the accident. For the reasons set forth below, plaintiffs’ motion is denied.

THE WEIGHT OF THE EVIDENCE

A trial court may grant a new trial on the ground that the jury’s verdict is against the weight of the evidence only where the verdict is so contrary to the evidence that it “shock[s] one’s sense of justice.” Randt v. Abex Corp., 448 Pa. Super. 224, 231, 671 A.2d 228, 232 (1996).

“[A] new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion. ...” Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985).

In this case Mrs. Kitzmiller alleged injuries to her neck and shoulder as a result of the collision. She claims damages for pain and suffering and her husband, plaintiff Ricky Kitzmiller, claims damages for loss of consortium. There is no claim for medical expenses, property damage or any economic loss. The damage claims were supported by testimony from plaintiffs themselves and from Mrs. Kitzmiller’s treating physicians, who in turn relied on the history provided them by plaintiffs. Plaintiffs’ claims were totally dependent on the credibility of their witnesses, and in particular on the credibility of Mrs. Kitzmiller.

In finding that Mrs. Kitzmiller did not suffer harm in the accident, the jury apparently did not find her testimony credible. Although the verdict did surprise this writer, it did not “shock one’s sense of justice.” There was no unimpeachable evidence of Mrs. Kitzmiller’s injury. The jury was entitled to disbelieve her complaints of pain and her professed limitation of activity.

It is well established that credibility determinations are within the sole province of the jury.

“A jury is entitled to believe all, part, or none of the evidence presented.... A jury can believe any part of a witness’ testimony that they choose, and may disregard any portion of the testimony that they disbelieve.” Martin v. Evans, 551 Pa. 496, 505, 711 A.2d 458, 463 (1998) (quoting Randt v. Abex Corp., 448 Pa. Super. 224, 234, 671 A.2d 228, 232 (1996)).

In this case the jury chose to disbelieve the testimony of plaintiffs’ witnesses. This was within the jury’s province, and under our system of laws we must respect that decision.

The Pennsylvania Supreme Court has stated:

“Pain may be subjective, and if believed, is compensable. ... If the pain, however, has no known medical source and is subjective to the person, the triers of fact must believe and accept that it could and in fact exists. They are not to be faulted, however, if they do not believe all they are told and all that their common experience does not accept. That is not to say, they may disregard obvious injury. It is, however, to say that they are not obliged to believe that every injury causes pain or the pain alleged....
“Jurors are not compelled to find pain where there [is] no objective injury. They could have but they did not, and it is not a fact of human experience that every tort produces compensable pain.” Boggavarapu v. Ponist, 518 Pa. 162, 167-68, 542 A.2d 516, 518-19 (1988). (citations omitted) (emphasis in original)

In Boggavarapu, the Supreme Court reversed the trial judge’s grant of a new trial and reinstated the jury’s verdict, holding that the jury was not compelled to believe that compensable pain had resulted from the allegations of injury.

To the same effect are Holland v. Zelnick, 329 Pa. Super. 469, 478 A.2d 885 (1984) and Brodhead v. Brentwood Ornamental Iron Co. Inc., 435 Pa. 7, 255 A.2d 120 (1969). In Holland, like the instant case, the plaintiff’s vehicle was struck from behind, and the plaintiff claimed injuries to her neck area. However, there was no objective evidence of injury. The Superior Court upheld the jury verdict that the defendant’s negligence did not cause harm to the plaintiff. In Brodhead, the plaintiff was standing near his milk truck when it was struck by a steel truss being hauled by defendant on a tractor-trailer. The impact threw the plaintiff forward. The only testimony substantiating his injuries came from the plaintiff himself and his treating physician. A jury verdict for the defendant was upheld on the ground that “the jury must have decided that plaintiff was not injured in this accident.” Id. at 10, 255 A.2d at 122.

Plaintiffs rely on the case of Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995), in which the Supreme Court reinstated the new trial order of the trial judge after the Superior Court had reversed the trial judge’s decision. Neison, however, is readily distinguishable. The collision in that case was so violent that it caused the plaintiff’s head to shatter the rear window of his car, resulting in a large lump on the plaintiff’s head. Moreover, the defendant’s own expert acknowledged that plaintiff was injured in the accident. See also, Mano v. Madden, 738 A.2d 493 (Pa. Super. 1999), where the defendant’s expert conceded that plaintiff had suffered some injury from the accident.

In the instant case the jury could have concluded from the evidence that the collision was a very mild one. Moreover, there was no visible injury to Mrs. Kitzmiller. Nor was there any acknowledgment by defendants’ medical witness, Dr. Eugene I. DiSalvo, that Mrs. Kitzmiller was injured in the accident. In short, there is nothing about the circumstances of the case that required the jury to believe Mrs. Kitzmiller and her witnesses.

Plaintiffs argue that Dr. DiSalvo’s testimony supported their case. However, this is not an accurate interpretation of what he said. Dr. DiSalvo, who testified by videotape deposition, stated that he found no objective evidence of any injury in his examination of Mrs. Kitzmiller, which took place several years after the accident. His testimony was that Mrs. Kitzmiller “may have sustained at the most a cervical strain.” He indicated clearly that his opinion was based on her history rather than on any objective findings. All that Dr. DiSalvo really said was that if the jury found credible Mrs. Kitzmiller’s description of her symptoms, the most she would have sustained was a cervical sprain. Accord, Livelsberger v. Kreider, 743 A.2d 494 (Pa. Super. 1999) (defendant’s medical expert testified that plaintiff “may have” sustained a cervical sprain, but did not concede that she actually had suffered such an injury).

Plaintiffs state that Dr. DiSalvo was more definitive in his medical report prior to trial, following his examination of Mrs. Kitzmiller. However, this report was not admitted into evidence, upon plaintiffs’ objection, because it had not been properly authenticated. Since this report is not in evidence, we cannot consider it as the basis for a new trial. Furthermore, the report does not indicate any objective findings of injury to Mrs. Kitzmiller from the accident. When read as a whole, the report is based solely on Mrs. Kitzmiller’s description of her symptoms.

For these reasons we cannot overturn the jury’s verdict that defendants’ negligence did not cause harm to plaintiffs.

“Issues of credibility were decided by the jury in this case. Courts are reluctant to overturn factual findings where a jury has made credibility determinations and do so only in the rarest of circumstances.” Armbruster v. Horowitz, 744 A.2d 285, 287 (Pa. Super. 1999).

This case does not qualify as one of those “rarest of circumstances.”

THE PHOTOGRAPHS

Photographs of plaintiffs’ vehicle taken shortly after the accident were admitted into evidence. Plaintiffs objected to these photographs on the ground that immediately after the accident, before the photographs were taken, Mr. Zeitner and Mrs. Kitzmiller pulled out, by hand, a dent to the rear panel of the Kitzmiller vehicle, so that Mr. Kitzmiller could close the trunk. Thus, the photographs do not precisely depict the vehicle immediately after the accident. We admitted the photographs into evidence, nonetheless, because the change was clearly pointed out to the jury and we concluded that the probative value of the photographs far exceeded the danger of confusion or prejudice.

Pennsylvania Rule of Evidence 403 provides:

“Evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

In deciding whether to admit the photographs, we focused on three questions: (1) did the photographs portray a relevant condition? (2) were the changes in the condition of the vehicle adequately explained to the jury? (3) was the likelihood of confusion remote? We answered all three questions in the affirmative.

As to the relevance of the photographs, one of the principal issues in the case was the force of the impact. Mrs. Kitzmiller testified that there were two impacts in the course of which she was thrown forward violently, causing a whiplash-type injury. Mr. Zeitner described the impact as so slight that it was barely noticeable. According to Mr. Zeitner, he brought his tractor-trailer to a halt, only to have it roll forward very slowly, resulting in a very mild impact. Therefore, the extent of the damage to the rear of the Kitzmiller vehicle was quite relevant to assist the jury in determining the force of the impact. The photographs show that there were at most scrapes on the rear bumper of the Kitzmiller vehicle; that the license plate lights and the two plastic holders on either side of the license plate were not damaged; that the taillights were intact; and that the lettering or insignia at the rear of the vehicle was unscathed. Thus, from the lack of damage to certain parts of the rear of the Kitzmiller vehicle, one could infer that the collision was one of limited force.

It would have been preferable to have photographs taken prior to the remedial work done by Mr. Zeitner and Mr. Kitzmiller, but this was not possible. As the Supreme Court pointed out long ago in Beardslee v. Columbia Township, 188 Pa. 496, 41 A. 617 (1898),

“[Pjhotographs of the scene of an accident, taken at or near to the time, are not always obtainable....
“[Tjhe only practicable rule would seem to be that the changes must not be such as to destroy the substantial identity, and that the changes whatever they are must be carefully pointed out and brought to the jury’s attention.” Id., 188 Pa. at 502, 41 A. at 618.

The limited remedial work done by Mr. Zeitner and Mr. Kitzmiller in pulling out a dent by hand was fully explained to the jury on several occasions during the course of the trial. Defendants’ counsel referred to the changes in his opening statements. Each of the three fact witnesses, Mrs. Kitzmiller, Mr. Kitzmiller and Mr. Zeitner, was examined fully on this very point. Therefore, it was made crystal-clear to the jury that the photographs did not exactly depict the vehicle’s condition immediately after the accident. The jury was fully informed by all three fact witnesses that a dent to the rear panel had been pulled out by hand prior to the taking of the photographs.

Since this was a short trial lasting less than a day and a half, the explanation of the changes could not have been lost in a sea of other information. The change was not difficult to understand. It was repeated in the testimony of each of the three fact witnesses. We do not believe that the jury could have been confused or misled by the photographs. If plaintiffs’ counsel had thought there was a possibility of jury confusion, he could have requested a supplemental jury instruction on this point. He did not do so.

If a photograph depicts a relevant condition, it is not necessary that the condition portrayed in the photograph be absolutely similar to the condition at the time in question. See Aiello v. SEPTA, 687 A.2d 399, 403 (Pa. Commw. 1996). In the instant case the change in the condition of the Kitzmiller vehicle was adequately explained, and the probative value of the photographs outweighed the danger of unfair prejudice or jury confusion. Therefore, the photographs were properly admitted into evidence.

ORDER

Now, March 31, 2000, upon consideration of plaintiffs’ motion for post-trial relief, after review of the parties’ briefs and oral argument, and for the reasons set forth in the accompanying opinion, it is ordered that said motion be and hereby is denied.

      . In plaintiffs’ post-trial motion, the first five reasons advanced for a new trial are all subsumed under this general category.

      . Deposition of Eugene I. DiSalvo M.D., defendants’ exhibit 9, p. 57. (emphasis added)

      . Defendants’ exhibits 1 through 4.

      . N.T. at 9-10, 49-50.

      . N.T. at 49-100, 109-110.

      . N.T. at 57-58, 86-88, 101-102, 107.

      . N.T. at 126.

      . N.T. at 56-59 (cross-examination of Mrs. Kitzmiller); N.T. at 86-88 (cross-examination of Mr. Kitzmiller); N.T. at 101 (direct examination of Mr. Zeitner); N.T. at 114-16 (cross-examination of Mr. Zeitner).