author: WALLACH MILLER, J.,

text:
    Miller v. Kapcala

      C.P. of Monroe County,
    no. 3185 Civil 1998.

      James E. Crossen, for plaintiff.

      David W. Saba, for defendant Kapcala.

      Lori J. Cerato, for defendant Pocono Medical Center.

      Mark H. Scoblionko, for defendant McCrae.

      Kathleen A. Walsh, for defendant Kluk.
    January 29, 1999
   WALLACH MILLER, J.,

Glen and Ruth Miller filed medical malpractice actions against Jan Kapcala D.O., Pocono Medical Center, Charles McCrae M.D. and McCrae Medical Associates, alleging negligent medical care Mr. Miller received after sustaining injuries in an automobile accident with a car driven by additional defendant Frank M. Kluk. Defendants have filed a motion for summary judgment, arguing that a release signed by the plaintiffs with the additional defendant precludes any action against them. All agreed that summary judgment should be entered in favor of Mr. Kluk.

BACKGROUND

Glen Miller sustained injuries to his foot in a motor vehicle accident on May 29, 1996. The driver of the other vehicle involved was additional defendant Kluk. Mr. Miller was taken to Pocono Medical Center where he was treated in the emergency room by Dr. Kapcala. Upon release from the hospital, he was advised to see a doctor in his home area of Berks County. Surgery was performed on plaintiff’s right foot by Dr. McCrae and the McCrae Medical Associates.

Plaintiffs instituted a claim against Mr. Kluk. Plaintiff then settled that matter and signed a general release on October 6, 1996. During this time, plaintiff was under the care of Dr. McCrae and McCrae Medical Associates.

Sometime in July of 1997, plaintiff sought a reevaluation of his right foot but discovered Dr. McCrae was no longer practicing medicine. Plaintiff then saw Dr. Scott Nord of Berks Orthopedic Associates for the reevaluation. After this examination, plaintiff alleges for the first time that the treatment rendered to him previously gives rise to a potential cause of action for medical malpractice. A complaint for medical malpractice was filed on May 13, 1998.

DISCUSSION

It is well settled that an entry of summary judgment is only properly granted in those cases where the right to such judgment is clear and there are no material facts at issue. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991); Musser v. Vilsmeier Auction Co., 522 Pa. 367, 562 A.2d 279 (1989). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979).

The defendants request this court to enter summary judgment arguing that the release signed between the plaintiffs and Mr. Kluk also releases defendants from the malpractice claims made against them. The release in pertinent part reads:

“[We] release, and forever discharge Frank M. Kluk, Allstate Insurance Company and any other person, partnership, firm, or corporation ... from any and all claims, . . . and causes of actions arising from any occurrence, up to the present time, . . . that occurred on or about May 29, 1996 . . . .”

The plaintiffs counter that argument by alleging that the malpractice claim is not barred by the release because the claim itself did not accrue until after the release was signed.

Our analysis begins with the Pennsylvania Supreme Court decision, Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989). There, plaintiff was involved in an automobile accident on December 3, 1981 and was taken to Aliquippa Hospital for treatment of his injuries. Plaintiff subsequently signed a release with the other driver on November 14, 1983, which included any future claims against “any and all other persons.” Id. at 329, 561 A.2d at 734. Two weeks after the release was executed, plaintiff filed a malpractice claim against the hospital for negligent treatment rendered for the injuries sustained from the accident. The court relied on the ordinary meaning of the document’s language and held the release discharged the claim. Id.

A malpractice claim was also barred by a release executed in Dublin by Dublin v. Shuster, 410 Pa. Super. 1, 598 A.2d 1296 (1991). There, plaintiff was involved in a car accident and was diagnosed with a fractured femur and a minor neck injury. As a result of negligent treatment by the defendants, a spinal fusion was performed. When a malpractice action was filed three months after the release was signed, plaintiff contended that the malpractice claim was a “separate and distinct cause of action” not precluded by the release. Confining the inquiry to the release language, the court rejected that argument and held that the subsequent injury to plaintiff was directly or indirectly the result of the underlying accident. Id.

In Vaughn v. Didizian, 436 Pa. Super. 436, 648 A.2d 38 (1994), our Superior Court reached a different result. Beth Vaughn sustained injuries when she was involved in auto accident on August 12, 1983, and signed a release three months later on November 23, 1983. She then had surgery on August 1, 1984 for spinal injuries she sustained from the accident. A malpractice claim was later filed, and Dr. Didizian countered with a summary judgment motion pointing to the release.

The Superior Court relying on Henry Shenk Co. v. Erie, 352 Pa. 481, 43 A.2d 99 (1945), held that releases are to be strictly construed so as to not bar the enforcement of claims that have not accrued at the date of signing. Id. at 487, 43 A.2d at 40. Since the release was signed almost seven months before plaintiff sought treatment for her spinal injuries, the negligent treatment had not accrued at the date of the signing of the release. Therefore, the release did not bar the cause of action. Id.

The United States District Court case, Youngren v. Presque Isle Orthopedic Group, 876 F. Supp. 76 (W.D. Pa. 1995), expanded Vaughn by incorporating the discovery rule. Youngren sustained injuries from an auto accident on November 14, 1988 and underwent back surgery on July 17,1989. A general release was executed over one year later on August 30, 1990 with the other driver. Youngren was involved in a second auto accident in October of 1992, and, as a result, she sought treatment for her back. Pursuant to an examination, she learned that the surgery on her back in relation to the first accident had been performed on the wrong side. Despite the release, a malpractice action was filed.

The district court denied summary judgment, reasoning that the malpractice claim was not barred by the release because that action had not accrued when the release was executed. Id. at 80. The court applied the “discovery rule” which says a cause of action does not accrue until plaintiff knows or reasonably should have known that she has been injured and the injury has been caused by another party. A. McD. v. Rosen, 423 Pa. Super. 304, 308, 621 A.2d 128, 130 (1993). Furthermore, the discovery rule requires that plaintiff know of the injury, its cause, and the causal relationship between the injury and the conduct. Holmes v. Lado, 412 Pa. Super. 218, 225, 602 A.2d 1389, 1392 (1992).

Since plaintiff did not first learn about her faulty surgery until October of 1992 during an examination for an unrelated accident, her malpractice claim did not accrue until October of 1992. Youngren, supra. Because the release was executed well before the malpractice claim had accrued, the cause of action survived summary judgment. Id.; see also, Porterfield v. Trustees of Hospital of University of Pennsylvania, 441 Pa. Super. 529, 657 A.2d 1293 (1995) (holding for defendants by noting that malpractice claim accrued before release was executed).

We agree with the Youngren and Vaughn courts. Plaintiffs’ malpractice claim in the case at bar did not accrue until after the release was executed. As in Youngren, we apply the discovery rule to determine when that date actually occurred. Plaintiff learned of a possible cause of action during an examination by Dr. Nord on August 19, 1997.

Plaintiff’s deposition testimony supports this conclusion. At page 42 of his deposition, he testified:

“Q. What did Dr. Nord tell you after you gave him this history and supplied this information to him?
“A. He was appalled that they gave me a spinal. He said, what did they do that for? I said, to put my foot back into place from the dislocation. And he just couldn’t believe that they didn’t do an open reduction. I didn’t know what that meant at the time.” (Plaintiff’s deposition p. 42, 11. 5-9.)

At page 73 of the deposition, he further testified:

“Q. Has any physician ever told you what the critical period is to get blood flow back to the bone?
“A. As I recall, Dr. Nord said that it was imperative to have it immediately with a break like that to get the blood flowing back into the bones. Meaning, as soon as I was taken to the operating room, that’s when it should have been done. Right after the accident.” (Plaintiff’s deposition p. 73, 11. 14-21.)

We therefore find that plaintiff did not know or have reason to know of his injury until he sought treatment from Dr. Nord. See A. McD., supra; see Holmes, supra. Since plaintiffs’ cause of action did not accrue until after the release was executed, which was over 10 months later, the release does not bar the malpractice claim. See Vaughn, supra; see also, Youngren, supra.

We distinguish our holding today from the holdings in Buttermore, Dublin, Smith v. Thomas Jefferson University Hospital, 424 Pa. Super. 41, 621 A.2d 1030 (1993) and Holmes v. Lankenau Hospital, 426 Pa. Super. 452, 627 A.2d 763 (1993) for the same reason Judge Johnson distinguishes them in Vaughn. In those decisions, the cause of action accrued before the release was executed. Vaughn, supra at 441, 648 A. 2d at 41. That is not the instance here. The release was signed on October 6, 1996, but Mr. Miller did not learn of the alleged negligent medical care until August 19,1997.

Defendants nevertheless contend that Mr. Miller was already undergoing medical care before the release was executed which is distinguishable from the facts in Vaughn because in her case, the negligent surgery did not occur until seven months after the release was executed. A similar situation was confronted in Youngren, and District Judge Cohill flatly rejected that argument by holding that Vaughn did not rest on this mere fact. Youngren, supra at 79. Rather, that court adopted a broader interpretation. Id. Since the cause of action did not accrue until after the release was signed, the document does not bar the claim. Id. It so follows in plaintiffs’ case.

Defendants also rely on Buttermore and Dublin because the release language in the case before us covers the fact that Mr. Miller’s malpractice claim arises out of the same accident. Therefore, the release bars the claim. We disagree because Vaughn addressed this situation. There, the negligent medical care administered to Ms. Vaughn’s back arose from an injury sustained in her auto accident, yet the court still denied summary judgment relying on the rule promulgated in Henry Shenk.

Similarly, defendants argue that the facts in Youngren are distinguishable because Youngren sustained a malpractice injury that did not arise out of the same accident. Keep in mind that the writing court denied summary judgment based upon two theories and held “either, by itself will suffice.” Id. at 78. The second theory, “the cause of action accrued after the release was executed” is the proper theory for the facts before us and stands by itself. We read Youngren to mean that the plaintiff does not have to allege a separate injury as long as the cause of action accrued after the release was executed.

For the foregoing reasons, we enter the following order.

ORDER

And now, January 29, 1999, the motion for summary judgment filed by defendants Jan S. Kapcala D.O., Pocono Medical Center, Charles McCrae M.D. and McCrae Medical Associates Inc. is denied.

Summary judgment is granted in favor of additional defendant Frank M. Kluk.


source: Caselaw Access Project

author: FIELD, J.,

license: Public Domain

text:
    Peckham v. University of Pennsylvania

      Barton A. Haines, for plaintiff.

      Alan D. Berkowitz and Linda S. Dwoskin, for defendants.
    February 3, 1999
   FIELD, J.,

Plaintiff, George J. Peckham M.D., and defendants, the University of Pennsylvania and Laurence E. Earley M.D., have filed cross-appeals from this court’s denial of their post-trial motions following a jury verdict for the plaintiff. The defendants raise several issues on appeal including, inter alia, evidentiary issues, objections to the court’s jury charge, whether the court erred in finding that the plaintiff was not a public figure, and whether this matter should have been submitted to the jury at all. Plaintiff raises two issues: whether nonsuits were properly entered as to certain defendants and whether the issue of punitive damages was properly withheld from the jury. For the following reasons, both motions were properly denied, and the judgment entered on the jury verdict of May 19, 1998 should be affirmed.

Trial commenced in this matter on May 4, 1998. The following evidence was presented. For over 20 years, plaintiff had been a member of the medical staff of Children’s Hospital of Philadelphia (CHOP) and a faculty member of the medical school at the University of Pennsylvania, specializing in neonatology. In the summer of 1992 he began his role as coordinator of the Philadelphia-Kiev Partnership, an international medical program created and funded by the American International Health Alliance (AIHA). Three institutions were to participate in the program: The Hospital of the University of Pennsylvania (HUP), CHOP and Pennsylvania Hospital. The aim of the program was to improve maternal and child health in Kiev, and it was operated through the Office of International Medical Programs at the university. According to the plaintiff, he was the reason the funding for the project came to the university. In contrast, witnesses for the university stated that the university was the lead institution and sub-grantee of funds received by the project.

Conflicts between plaintiff and others at the university surfaced shortly after the project’s inception. Evidence was presented by university personnel that they believed Dr. Peckham was negotiating to move the project to Pennsylvania Hospital. On January 27,1993, a meeting was held at HUP attended by all administrators and department heads involved in the project except Dr. Peckham, who had not been invited. At that meeting, it was decided that Dr. Peckham would be removed from his position as coordinator of the project and replaced by two staff members of HUP. At the same time, a draft of a letter was circulated among those attending the meeting. This letter contains the alleged defamation which constitutes the basis of this lawsuit. (Trial exhibit P-1, attached hereto as exhibit A.) This letter, dated January 29, 1993 and addressed to James P. Smith, executive director of AIHA, was sent by Laurence E. Earley M.D., senior associate dean for international medical programs at the university. It stated that because of “issues” which had been “recurrent over a period of months,” it was “regrettably” concluded that Dr. Peckham should no longer be the coordinator of the Philadelphia-Kiev Partnership. All those attending the meeting were sent copies of the letter.

Although plaintiff’s complaint contained several counts, including, inter alia, interference with prospective contract, wrongful discharge, intentional infliction of emotional distress, loss of consortium, conspiracy and defamation; all except the defamation claim were disposed by the court or by plaintiff’s withdrawal prior to submission to the jury. Following nine days of testimony and one and a half days of deliberation, the jury found Dr. Earley’s letter of January 29, 1993 to be defamatory and awarded Dr. Peckham $2,500,000 in damages.

Defendants Earley and the university have preserved several issues on appeal. The threshold question raised is whether the court erred in finding that the letter was capable of a defamatory meaning. In all defamation cases, it is initially for the trial court to determine whether a challenged communication is capable of a defamatory meaning. Green v. Mizner, 692 A.2d 169, 172 (Pa. Super. 1997). When making this determination, the court must look at the communication as a whole, not merely at specific words or phrases. Id. How the entire communication would be interpreted by the intended audience must be considered as well as whether the statements expressed imply the existence of undisclosed defamatory facts. Baker v. Lafayette College, 516 Pa. 291, 296-97, 532 A.2d 399, 402 (1987). If there is any interpretation which could be construed as defamatory, the question must be sent to the jury. Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa. Super. 253, 270, 489 A.2d 1364, 1374 (1985); cf. Restatement (Second) of Torts §573, comment (c) (1977).

The letter at issue here was sent to AIHA, the agency which received grant funds from the United States Agency for International Development (US AID) and disbursed them to the program administrators. It was circulated among all of the persons involved in the Philadelphia-Kiev program. One of those who received the letter was David P. McKee, program director for AIHA. He testified that his reaction to the letter’s phrasing was that there must have been some sort of professional incompetence. (McKee, trial deposition at p. 61.) McKee further testified that the letter led him to believe that something happened in Philadelphia involving Dr. Peckham, and that, consequently, “Dr. Peck-ham’s effectiveness in international health care was over.” (McKee trial deposition at 90.)

Upon examination of the letter, it is clear that Dr. Earley referred to “issues,” upon which he chose not to elaborate. The letter itself, was, therefore, capable of a defamatory interpretation based upon those undisclosed facts. Similarly, even though several people who read the letter said it did not affect their opinion of Dr. Peckham, Mr. McKee’s testimony that he read the letter to imply something negative was a sufficient basis for the jury to have found that the letter was, indeed, defamatory.

In a related argument, defendants argue that they are entitled to a new trial or judgment n.o.v. because there was no proof that the letter was false or that the defendants were negligent in sending the letter. As discussed above, since the letter was written in such a way as to imply the existence of undisclosed defamatory facts, it furnishes a sufficient basis from which the jury could have found Dr. Earley negligent.

The next error alleged by the defendants is that the wrong defamation standard was applied and that the court should have instructed the jury that Dr. Peckham was a “limited purpose public figure” for the purposes of the lawsuit, and therefore plaintiff had a higher burden of proof than if he were a private citizen. In Gertz v. Robert Welch Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d789 (1974), the United States Supreme Court recognized two classifications of public figures. First there is the “all purpose” public figure, that is someone who has achieved such fame or notoriety in all contexts that everyone knows who he is. The second type is the “limited purpose” public figure, that is, someone who voluntarily injects himself or is drawn into a particular public controversy, giving rise to the alleged defamation. A public controversy is not merely something of interest to the public; it must be one being debated, publicly and having forseeable as well as substantial ramifications to the general public. Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa. Super. 163, 484 A.2d 72 (1984). While undoubtedly important to the participating individuals and institutions, it is clear that Dr. Peckham’s status as head of the Philadelphia-Kiev project or his removal from that position did not rise to the level of a “public controversy.” Hence, the court correctly found that Dr. Peckham was not a limited purpose public figure.

Defendants next argue that they are entitled to judgment n.o.v., a new trial or remittitur because Dr. Peck-ham failed to prove any damages as a result of any defamation. The damages claimed and testified to were noneconomic such as the humiliation, pain and suffering, and damage to his reputation which resulted from the defamation. Dr. Peckham testified to all these items. The value placed on such harm by the jury may not be disturbed unless there is no support in the record. When reviewing a jury’s verdict, the evidence must be viewed in the light most favorable to the verdict winner. Boutte v. Seitchik, 719 A.2d 319 (Pa. Super. 1998). A jury’s determination is not to be disturbed as long as there is sufficient evidence on the record to support it. Fannin v. Cratty, 331 Pa. Super. 326, 480 A.2d 1056 (1984). Here, plaintiff testified about how he suffered as a result of the defamation. Hence, the jury’s award should not be disturbed.

Defendants raise three issues dealing with evidentiary rulings: first, that the court erred in excluding evidence regarding Dr. Peckham’s history of alcoholism; second, that the court erred in excluding evidence regarding Dr. Peckham’s employment removal as division chief in the neonatology department; and third, the court erred in permitting plaintiff’s experts to testify. These will be discussed in turn.

Defendants sought to present evidence of Dr. Peck-ham’ s treatment for alcoholism in 1991, two years before the events at issue. They argued that his personal life and reputation had already suffered as a result thereof. However, there was no evidence that Dr. Peckham had any alcoholism-related problems at any time during his entire involvement with the Philadelphia-Kiev partnership. Hence any possible probative value was clearly outweighed by the prejudice which would have resulted. Because of the remoteness in time, Dr. Peckham’s treatment was properly excluded.

Next, defendants argue that it was error to exclude evidence of Dr. Peckham’s removal from a prior position at HUP. Specifically, the defendants sought to present a letter addressed to and the testimony of Dr. Richard Johnson, plaintiff’s former supervisor at HUP. The date of the letter was September 20, 1989, and his testimony would have concerned the same time period. As above, the remoteness of the two events necessitated the exclusion of the evidence.

Defendants argue that the court erred in permitting the testimony of plaintiff’s witnesses, Drs. Ramsden and Hochberg. Dr. Ella Ramsden was presented as both a fact and an expert witness. During the period involved in this matter she was president of the university’s chapter of the American Association of University Professors (AAUP) as well as a member of the joint committee to study the academic environment at the medical school. Defendants did not object to her testifying as fact witness. The only area in which the court permitted her to give opinion testimony was with regard to standard procedures for the removal of faculty from a funded project, such as the one here, and whether the procedure here was in accordance with such standard procedures. Given her position as AAUP president she was qualified to give such an opinion. No error occurred.

Mark Hochberg M.D. was presented as an expert to give his opinion as to how the January 29, 1993 letter to the AIHA would be received and interpreted by the grant-giving community. Dr. Hochberg’s qualifications to give such an opinion were based on his extensive experience. He had been a grantee performing research as well as operating both private and government-sponsored programs. More recently, he was head of a large health care philanthropic organization which bestowed such grants. Dr. Hochberg went through the letter line by line and explained how he, as someone responsible for making grants would, upon reading such a letter, be suspect of Dr. Peckham and reluctant to give him any grant funds. This opinion was relevant and Dr. Hochberg was qualified to give it. No error occurred.

The final area in which defendants allege error concerns alleged prejudicial errors during opening and closing arguments. Defendants allege that it was error for the court to sustain plaintiff’s objection to argument regarding Dr. Peckham’s removal from his prior position at HUP, which occurred in 1989. (N.T. May 18, 1998, at 106.) As discussed above, such events were too remote in time to be admitted. The preclusion of such references in closing argument was consistent with evidentiary rulings made during the trial, and thus proper.

Finally, defendants allege that the court erred in permitting plaintiff’s counsel to refer in his arguments to defendants’ “arrogance” and “unfairness.” Such comments are permissible argument. The jury was adequately instructed both before and after the evidence that speeches by lawyers are not evidence. No error occurred.

Plaintiff’s post-trial motion seeks relief in two areas. First, he argues that the court erred in granting nonsuits as to all the other defendants and in dismissing his conspiracy claims. Plaintiff argues that since all the other named defendants were present or represented at the January 27,1993 meeting, at which the offending letter was reviewed, they all were liable as co-conspirators in the defamation. Mere acquiescence is not a sufficient act to constitute participation in the defamation. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996). Since no other action was taken by any meeting attendees except Dr. Earley with regard to the defamation, none of the defendants other than Dr. Earley and the university, as the entity for which Dr. Earley was an agent, could be held liable for the defamation. Hence, the nonsuits as to the other defendants were properly entered and the conspiracy claim properly dismissed.

Finally, plaintiff seeks a new trial as to damages only on the basis that the court erred in dismissing his punitive damage claim. Whether to submit a claim for punitive damages to the jury is initially a question for the trial court. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). Mere negligence or carelessness, though sufficient to support an award of compensatory damages, is not enough. Oweida v. Tribune-Review Publishing Co., 410 Pa. Super. 112, 137, 599 A.2d 230, 243 (1991). In order to support an award of punitive damages in a defamation case there must be evidence of behavior which is so outrageous so as to constitute actual malice. Id., 410 Pa. Super, at 136, 599 A.2d at 242. Where, as here, the defamation rested not on false statements but on implications of undisclosed facts, the evidence did not rise to such a level as to support the submission of punitive damages to the jury.

For all of the above reasons, the post-trial motions of all parties were properly denied. The judgment as entered on August 5, 1998 on the jury’s verdict should be affirmed.

EXHIBIT “A”

University Of Pennsylvania Medical Center

International Medical Programs University of Pennsylvania School of Medicine Hospital of the University of Pennsylvania

Suite 100, Edward J. Stemmier Hall Philadelphia, PA 19104-6087 Tel: (215) 898-0283 Fax: (215) 573-2158

January 29, 1993

Mr. James P. Smith, Executive Director American International Health Alliance 1212 New York Avenue NW, Suite 825 Washington, DC 20005

Dear Mr. Smith:

After multiple lengthy discussions and careful consideration by the Office of the Dean of the School of Medicine, the Department of Pediatrics and the Department of Obstetrics and Gynecology of the University of Pennsylvania we have regrettably reached the conclusion that Dr. George Peckham should no longer represent the University of Pennsylvania as coordinator of the Philadelphia Kiev Partnership. There is unanimous agreement among the leadership involved at the University of Pennsylvania Medical Center and Children’s Hospital of Philadelphia that our potential for contributing to the success of the Kiev project can only be realized under new leadership. This is by no means a hasty decision, and the issues leading to this have been recurrent over a period of months.

Our departments of Pediatrics and Obstetrics and Gynecology, the Medical Center, Children’s Hospital of Philadelphia, our School of Nursing, and other relevant components of the University of Pennsylvania remain committed and eager to implement a successful program for improving maternal and child health in Kiev. To this end we are prepared to recommend that Dr. William Beck, professor of Obstetrics and Gynecology at the Hospital of the University of Pennsylvania and long a member of the staff at Pennsylvania Hospital, and Dr. William Schwartz, professor of Pediatrics and director of the newborn service at the Hospital of the University of Pennsylvania, be named co-directors of the program, replacing the position of a single coordinator. We will be pleased to forward their curriculum vitae and, if you wish, they can meet with you or your designee, either in Washington or in Philadelphia. Also, I am prepared to meet with you and representatives of USAID to affirm our commitment to the program and to discuss the need for the changes described above.

These intended changes have been discussed with Mr. Clifford Eldridge, president of Pennsylvania Hospital and Mr. Edmond Notebaert, president of Children’s Hospital of Philadelphia and they both concur.

I look forward to your prompt response so that together we can take the necessary steps to move the Kiev program forward.

Sincerely,

/s/Laurence E. Earley M.D.

Senior Associate Dean

Copy: Mr. Eldridge Mr. Notebaert Dr. Ballard Dr. Burg Dr. Farmer Dr. Hougen Dr. Kelley Dr. Mennuti Dr. Schwartz

      . Defendants have also raised the issue of qualified privilege. They assert that Dr. Earley was allowed to comment on Dr. Peckham’s job performance just as any employer would be allowed to comment, on an employee’s performance. However, since the defamation alleged here rests on the implication of undisclosed defamatory facts, such a privilege would be inapplicable, even if Dr. Peckham and Dr. Earley had been in an ordinary subordinate/supervisor relationship.


author: WETTICK, J.,

text:
    Hospital Shared Services v. CIGNA Insurance Co.

      C.P. of Allegheny County,
    no. GD 95-2956.

      Jeffrey B. Fienberg, for plaintiff.

      Daniel F. LaCava and Henry M. Perlowski, for defendant CIGNA Insurance Company.

      Mary Ann Dilanni, for defendant Meyer & Eckenrode Insurance Group Inc.
    November 16, 1998
   WETTICK, J.,

The subject of this opinion and order of court is plaintiff’s motion for leave to amend complaint. The issue raised through this motion is whether statutory bad faith claims based on 42 Pa.C.S. §8371 are governed by the two-year limitation period governing torts (42 Pa.C.S. §5524(7)) or the six-year “catchall” limitation period (42 Pa.C.S. §5527). The Pennsylvania appellate courts have not addressed this issue.

Plaintiff is a named insured under CIGNA policies issued between 1990 and 1993 providing directors and officers with liability coverage. On February 16, 1994, CIGNA advised plaintiff that it would not provide a defense and/or indemnify plaintiff with respect to an underlying lawsuit purportedly covered by the CIGNA policies. In 1995, plaintiff filed a complaint which raised against CIGNA causes of action for breach of contract and promissory estoppel.

In September 1998, plaintiff presented a motion for leave to amend its complaint, seeking to raise a bad faith claim against CIGNA based on allegations that CIGNA purposefully failed to conduct a timely investigation of the claims asserted in the underlying lawsuit. Through this motion, plaintiff is seeking to raise a new cause of action. See March v. Paradise Mutual Insurance Co., 435 Pa. Super. 597, 600-601, 646 A.2d 1254, 1256 (1994). CIGNA opposes the motion on the basis of established Pennsylvania case law holding that a court shall not permit an amendment which raises a new cause of action after the statute of limitations has expired.

CIGNA’s argument that the two-year limitation period applies is based on the rationale which the United States District Court for the Eastern District of Pennsylvania utilized in Nelson v. State Farm Mutual Automobile Insurance Co., 988 F. Supp. 527 (E.D. Pa. 1997). In that case, the plaintiff’s section 8371 action was filed more than two years after the defendant’s alleged bad faith conduct. The court granted the defendant’s motion for summary judgment on the ground that an action for bad faith against an insurer under section 8371 is subject to the two-year statute of limitations for torts.

The controlling issue, according to the court, was whether a cause of action under section 8371 sounds primarily in tort, thereby giving it a two-year statute of limitations; whether it sounds exclusively in contract law, thereby giving it a four-year statute of limitations; or whether this cause of action is so intertwined with both tort and contract law that it cannot be classified, thereby falling within the six-year catchall statute of limitations. The court concluded that a bad faith action sounds in tort law because of the nature of the bad faith action and the history of bad faith as a cause of action.

The court stated that its position was supported by the manner in which the Pennsylvania Supreme Court and the Pennsylvania Legislature had addressed bad faith. According to the Nelson opinion, in 1981 in D ’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., 494 Pa. 501, 431 A.2d 966 (1981), the Pennsylvania Supreme Court declined to create a “new tort”- — a common-law cause of action for bad faith; however, it invited the legislature to do so. In 1990, the Pennsylvania Legislature enacted 42 Pa.C.S. §8371 to create this new tort that the D’Ambrosio opinion had invited the legislature to create.

I disagree with the Nelson opinion’s characterization of D‘Ambrosio. In D'Ambrosio, the plaintiffs argued that the Pennsylvania Supreme Court should follow the lead of the California courts in creating a cause of action in tort for breach of an implied covenant of good faith and fair dealing because this is the only remedy that could prevent insurance industry abuse in handling first party claims. The Supreme Court responded to this argument as follows: The legislature has made dramatic, sweeping efforts to curb bad faith conduct through the enactment of the Unfair Insurance Practices Act, Act of July 22, 1974, PL. 589, 40 P.S. §§1171.1-1171.15. There is no evidence to suggest that the system of sanctions established under the Unfair Insurance Practices Act must be supplemented by a judicially created cause of action. The state legislature is capable of prohibiting what are considered to be unfair claims handling practices and of imposing penalties for violations. Consequently, it is for the legislature “to determine whether sanctions beyond those created under the Act are required to deter conduct which is less than scrupulous.” Id. at 508, 431 A.2d at 970.

The D’Ambrosio opinion cannot be characterized as inviting the legislature to create a new cause of action in tort if existing sanctions created under the Unfair Insurance Practices Act are inadequate. At the most, the invitation was to create a private cause of action based on the unfair practices enumerated within the Act rather than to create a new tort.

In Ihnat v. Pover, 146 P.L.J. 288, 291-98 (1998), I addressed the issue of whether a section 1983 claim may be raised against an insurance company based on fraudulent representations that induced existing policyholders to fund new policies with the policy reserves of their existing policies. I initially addressed the insurance company’s argument that when the legislature used the term “bad faith” in an insurance context, it was referring only to the bad faith denial of coverage. I rejected this argument stating that section 8371 created a private cause of action based on violations of those insurance practices which constitute unfair methods of competition or unfair and deceptive acts or practices under the Unfair Insurance Practices Act. My opinion cited the statement within Romano v. Nationwide Mutual Fire Insurance Co., 435 Pa. Super. 545, 554, 646 A.2d 1228, 1233 (1994), that the parameters of section 8371 may be discerned by reference to conduct within the reach of the Unfair Insurance Practices Act.

I agree with the Nelson opinion’s conclusion that section 8371 should be governed by the two-year limitation period governing torts if the Unfair Insurance Practices Act reaches only conduct that would constitute tortious behavior. On the other hand, if this Act also reaches conduct which should be characterized as violations of statutorily created obligations, the two-year limitation period should not apply. In other words, the controlling issue is whether the Unfair Insurance Practices Act creates new obligations that the insurer owes the insured or whether it only provides additional remedies for bad faith breaches of obligations created by the insurance agreement.

Numerous unfair practices which the Act describes arise out of new statutorily created obligations. Consider the following Acts within 40 P.S. §1171.5(10): (ii) failing to acknowledge and act promptly upon written or oral communications with respect to claims arising under insurance policies; (iii) failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies; (iv) refusing to pay claims without conducting a reasonable investigation based on all available information; (v) failing to affirm or deny coverage of claims within a reasonable time; (vi) not attempting in good faith to promptly, fairly and equitably settle claims in which the company’s liability has become reasonably clear; (vii) compelling persons to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts due and ultimately recovered; (x) making claims payments to insureds or beneficiaries not accompanied by a statement setting forth the coverage under which the payments are being made; and (xii) delaying the investigation or payment of claims by requiring the insured, claimant or physician to submit unnecessary proofs of loss forms. A bad faith action for violations of these provisions is based on the breach of new obligations. It does not involve departures from a standard of care that tort law has traditionally recognized or the bad faith breach of a contract.

In Gabriel v. O’Hara, 368 Pa. Super. 383, 534 A.2d 488 (1987), purchasers of residential property discovered substantial defects shortly after taking possession of the property on August 29, 1980. On August 25, 1982, they filed a complaint raising causes of action for breach of the implied warranty of merchantability, breach of contract, and fraudulent misrepresentation.

On July 28, 1986, the plaintiffs filed a petition for leave to amend their complaint to include a claim for violations of the Unfair Trade Practices and Consumer Protection Law, Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§201-1 — 201-9.2. The lower court denied the motion on the ground that a cause of action under the Consumer Protection Law is governed by Pennsylvania’s two-year limitations period for fraud rather than the “catchall” six-year limitation period. The lower court reasoned that claims under the Consumer Protection Law essentially involve misconduct constituting fraud or deceit; thus, actions based on this Act will be governed by the two-year limitation period for actions for fraud and deceit.

The Superior Court stated that the controlling issue is not whether a particular claim sounds in tort but instead whether each claim that may be brought under the Consumer Protection Law resembles a claim for fraud and deceit. A uniform statute of limitations for the Consumer Protection Law is required to preclude uncertainty and inconsistency. Consequently, claims under the law must fall within the six-year catchall limitation unless the entire array of practices characterized as unfair trade practices comes within the two-year limitation period.

The court stated that unfair trade practices which the Consumer Protection Law describes include what might be analogized to misappropriation, trademark infringement, disparagement, false advertisement, fraud, breach of contract, and breach of warranty. Thus, causes of action based on the Consumer Protection Law are governed by a six-year limitation period:

“We are unable, therefore, to characterize all the multifarious claims that may be brought under the [Consumer Protection Law] as ‘fraud’ or ‘deceit.’ Instead, the [Consumer Protection Law] creates a civil action which is separate and distinct from appellants’ other causes of action and for which the legislature provided no limitations period. The language of section 5527(6) of the Judicial Code, however, is clear and unambiguous as to what period of limitation shall apply in such instances.” Id. at 396, 534 A.2d at 495. (footnote omitted)

Claims under section 8371 based on the unfair practices described in the Unfair Insurance Practices Act are very similar to claims based on the Consumer Protection Law. In both instances, recovery may be based on statutorily created duties that have almost no relationship to common-law fraud. In both instances, remedies for a breach include the award of counsel fees and punitive damages.

CIGNA seeks to distinguish Gabriel v. O’Hara on the ground that recovery under section 8371 includes an additional requirement of self-interest or ill will. However, this additional requirement does not necessarily involve tortious misconduct. It simply eliminates inadvertent or careless misconduct. This means, for example, that a bad faith claim based on the failure to act promptly upon written or oral communications with respect to claims arising under the insurance policy requires a showing that failure to act promptly is the result of a business practice rather than a failure to act in a particular case because of oversight, incompetence, or other careless acts. See Woody v. State Farm Fire and Casualty Co., supra.

For these reasons, I enter the following order of court:

ORDER

On November 16, 1998, it is hereby ordered that plaintiff’s motion for leave to amend complaint is granted.

      . In its proposed amended complaint, plaintiff alleges (1) that the reason CIGNA gave for denying coverage was that plaintiff had failed to furnish notice of the claim and its eventual settlement in a timely manner and (2) that documents produced in April 1997 established that CIGNA knew of the underlying lawsuit in sufficient time to participate in the defense and settlement of the lawsuit.

      . In Susich v. Prudential, 52 Beaver C.L.J. 168 (1998), the Court of Common Pleas of Beaver County ruled that a section 8371 claim is governed by the two-year limitation period. In Miller v. Cincinnati Insurance Co., civ. no. 97-1223 (E.D. Pa. July 9, 1997), and Woody v. State Farm Fire and Casualty Co., 965 F. Supp. 691 (E.D. Pa. 1997), the courts ruled that the six-year statute of limitations applies to a section 8371 action.

      . Subsection 1171.5(10) provides that any of its enumerated Acts, if committed or performed with such frequency as to indicate a business practice, shall constitute unfair claim settlement or compromise practices.

      . In Nelson, supra, 988 F. Supp. at 534 n.11, the court stated that it is hard to conceive that the Pennsylvania General Assembly would have intended to provide a six-year limitations period for a bad faith claim under section 8371 even assuming that a section 8371 action sounds both in tort (with a two-year limitations period) and contract (with a four-year limitations period). However, Gabriel holds that the six-year limitation period applies whenever more than one limitation period would be involved.


author: AMMERMAN, J.,

text:
    Halowell v. Strishock

      C.P. of Clearfield County,
    no. 95-1253-CD.

      Christina Hurnyak, for plaintiffs.

      James M. Horne, for defendant.
    March 19, 1999
   AMMERMAN, J.,

The above-captioned matter is a result of an automobile accident that occurred on November 14, 1993, in which plaintiff Charlene Halowell and her minor daughter, Jennifer Halowell, were struck by a vehicle driven by defendant, Mark Strishock Jr.

Thomas J. Sibert, Esquire, of the law firm of Edgar Snyder and Associates, initiated the personal injury action by way of a writ of summons filed on September 5, 1995. On September 22, 1995, an appearance was entered on behalf of the defendant and plaintiffs were ruled to file a complaint. A complaint was filed on October 23, 1995 and, in response, defendants filed an answer with new matter on December 1, 1995. Defendants responded with an answer to new matter on December 1, 1995. The pleadings were then closed.

Plaintiffs originally named not only the driver, defendant Mark Strishock, Jr., of the vehicle involved in the accident, but also his parents, Mark Strishock and Paula Strishock. By stipulation of the parties, the action against defendants Mark and Paula Strishock was discontinued with prejudice on September 11,1996.

Discovery was eventually completed by the parties and on July 11, 1997, plaintiffs filed a certificate of readiness certifying that this matter was ready for trial. The parties submitted their respective pretrial statements and a pretrial conference was held before this court on August 29, 1997. Following pretrial conference, the case was scheduled for jury selection on September 11, 1997, and a jury was in fact selected at that time. Trial was scheduled to commence on December 10, 1997.

Prior to trial, counsel for both parties advised this court that both sides had agreed to resolve the case by way of a binding alternative dispute resolution involving the use of three arbitrators. The parties alleged agreement to resolve the matter on this basis was confirmed by letters from counsel to this court, and following receipt of the same, this court issued the following order which was in the form as agreed upon by counsel:

“Now, November 26, 1997, the court having been advised that the parties to the above matter have agreed to resolve this action by way of a binding alternative dispute resolution process, and counsel, for all parties having confirmed said understanding to the court in writing, it is therefore ordered that the jury trial scheduled to commence in this matter on December 10,1997, be and the same is hereby canceled.

“The court further directs that upon completion of the alternative dispute resolution process, the plaintiffs shall promptly file with the prothonotary a notice of discontinuance such that this matter may be appropriately removed from the trial docket.”

No further docket activity in the matter occurred until the defendant filed on December 4, 1998 a motion to mark this action settled, discontinued and ended, with prejudice. The ADR process had been completed and defendant and his insurance carrier were ready, willing, and able to pay all sums due to plaintiffs as a result of the arbitrators’ decision. However, plaintiffs refused to sign any releases necessary for the issuance of settlement drafts and also refused to file a notice of discontinuance as required by the court’s order of November 26, 1997. On January 22, 1999, this court entered an order directing plaintiffs to file a written response to the motion within 20 days, which answer was to “set forth plaintiffs’ position with respect to each of the allegations in defendant’s motion, as well as any and all other defenses plaintiffs desired to raise in response to said motion.” The order further specified that argument on the motion would be held on February 17, 1999.

A written response was filed to the motion on behalf of the plaintiffs by Attorney Sibert. The answer admitted all allegations in defendant’s motion, except to say that the plaintiffs were unhappy and displeased with the results of the arbitration, and therefore refused to accept the arbitrators’ award or to sign releases. No affirmative defenses such as fraud, duress or mistake on the part of the defendant were asserted in plaintiffs’ answer. On February 16,1999, new counsel, Attorney Christina Hurnyak of the Tarasi Law Firm RC. entered her appearance for plaintiffs. Plaintiffs’ new attorney did not file any supplemental response to plaintiffs’ answer setting forth any other grounds for opposing the motion of the defendant.

At argument on the defendant’s motion held on February 17,1999, Attorney Hurnyak claimed the plaintiffs had not been aware that the arbitration proceeding was binding, and demanded a jury trial. The parties were then given the opportunity to submit briefs on the issue of whether the court should provide plaintiffs a further evidentiary hearing with respect to defendant’s motion. Both parties filed briefs.

Attorney Humyak also filed an affidavit of the plaintiffs with this court on February 17, 1999 which stated, in part, that “at no time prior to the arbitration were we informed that the arbitrators’ decision would be binding and not subject to appeal.” The affidavit is the only document on record that supports the plaintiffs’ proposition that the arbitrators’ award be set aside and the jury trial be rescheduled. The averments within the affidavit are entirely consistent with argument made by Attorney Humyak on plaintiffs’ behalf on February 17, 1999. In summary, the plaintiffs are not satisfied with the amount of money the arbitrators determined they should receive and are demanding a trial based upon their claim that Sibert didn’t inform them that the ADR process was binding.

The issue to be determined by this court is whether plaintiffs are now entitled to an evidentiary hearing on defendant’s motion to mark this case settled, discontinued, and ended, with prejudice. This court is of the opinion that the plaintiffs, even if the allegations of their affidavit are trae, are not entitled to an evidentiary hearing in this matter. Plaintiffs are bound by the actions of Attorney Sibert and must accept the outcome of the ADR process.

It is well-settled in Pennsylvania “that what an attorney does in the course of his representation . . . is presumed to be by the authority of his client.” Weeast v. Borough of Wind Gap, 153 Pa. Commw. 330, 336 n.5, 621 A.2d 1074, 1077 n.5 (1993). In essence, attorneys act as the agent of their clients, such that “any acts performed and statements made by the attorney within the scope of his or her employment ... are binding upon the client.” Weiner v. Lee, 669 A.2d 424, 428 (Pa. Commw. 1995), alloc. denied, 547 Pa. 734, 689 A.2d 237 (1997), citing Walck v. PennDOT, 155 Pa. Commw. 1, 625 A.2d 1276 (1993). In order to maintain any sense of order, the courts must be able to rely upon the representations of counsel. Otherwise, chaos would control our dockets as parties, unsatisfied with their counsel due to what would be perceived as unfavorable settlements and verdicts, would continuously seek to redress undesirable results.

Plaintiffs are not the only individuals who may not have had their best interests represented by counsel. The courts of Pennsylvania have had to address this issue several times in the past. In particular, by the Pennsylvania Supreme and Superior Courts in Rothman v. Fillette, 503 Pa. 259, 469 A.2d 543 (1983) and Manzitti v. Amsler, 379 Pa. Super. 454, 550 A.2d 537 (1988), aff’d 524 Pa. 587, 574 A.2d 601 (1990).

In Rothman, the minor plaintiff had been injured in a motor vehicle accident. Unknown to the minor or his parents, his attorney entered into a settlement with the defendants and their insurance carrier. The attorney then proceeded to forge the plaintiff’s name on the release and check, and confiscated the proceeds of the settlement for his own use. When the plaintiff, five years later, discovered the actions of his attorney, he filed a petition to remove the order marking the case settled, discontinued and ended. The lower court granted the prayer of the petition and reinstated the action against defendants, the Fillettes. That ruling was affirmed by the Superior Court. However, the Supreme Court determined that the petition to strike the order settled, discontinued and ended must be denied.

In its ruling, the Supreme Court reasoned that “in our judgment both of the parties of this action were innocent and free of any fault. Mr. Rothman in selecting his counsel, a person at that time certified to practice law by this court, had no reason to suspect misconduct. Likewise, the Fillettes and their insured bargained in good faith with appellee and Mr. Madnick, [opposing counsel,] under circumstances that would not reasonably give rise to any inference that counsel was breaching a trust to the client. The Fillettes and their insurer had every reason to believe under the facts presented that the purported settlement had been expressly approved by Mr. Rothman.” Rothman, supra at 264, 469 A.2d at 545. (footnote omitted)

The Supreme Court applied the long-standing principle that “where one of two innocent persons must suffer because of the fraud of a third, the one who has accredited him must bear the loss. . . . Where one of two innocent persons must suffer, the loss should be borne by him who put the wrongdoer in a position of trust and confidence and thus enabled him to perpetrate the wrong.” Id. at 265, 469 A.2d at 545. Although the Supreme Court recognized that the result was harsh for the injured minor, the court reasoned that the strong judicial policy favoring settlement required such a result. Thus, in a situation such as the present one, where there is some dispute between the plaintiffs and their counsel as to the attorney’s authority to settle the matter, it is the plaintiffs, and not the innocent defendant, who must bear the consequences of such dispute. Likewise, in Manzitti, supra, the Superior Court followed the rationale of the Supreme Court in Rothman in upholding a settlement of a medical malpractice case even though the attorney was not authorized to settle the claim for loss of consortium for the plaintiff’s wife. The Superior Court opined that the defendants and their insurer had a reasonable belief that the oral settlement agreement had been expressly authorized by the plaintiff’s attorney. The court further reasoned that the plaintiff’s attorney had indeed exceeded his authority in settling the matter. Nonetheless, the Superior Court, relying on Rothman, determined that the settlement must be enforced and that the defendants should not be punished for the dispute that existed between plaintiffs and their counsel.

In essence, “[tjhere is a strong judicial policy in favor of the parties voluntarily settling lawsuits____A primary reason to settle claims is that settlement is the faster way to get money into the hands of a victim of tortious conduct. A secondary reason is to reduce the burden on and expense of maintaining the courts.” Rothman, supra at 266-67, 469 A.2d at 546 (1983).

In this case, the dispute is between the plaintiffs and Attorney Sibert as to whether he informed them of the particulars of binding arbitration. Pursuant to the rationale of Rothman and Manzitti, it is the plaintiffs, and not the innocent defendant, who must bear the consequences of such dispute. Counsel for both parties confirmed the agreement to proceed to binding arbitration. The court confirmed the same through its order. The defendant is prepared to proceed with the arbitration result. The plaintiffs make no claim of fraud or wrongdoing against the defendant. If the plaintiffs so decide, they may file a malpractice action against their former counsel.

Thus, plaintiffs’ request for an evidentiary hearing must be denied and this honorable court enters the following:

ORDER

Now, March 19, 1999, it is the order of this court that defendant’s motion to mark this case settled, discontinued and ended, with prejudice, be and is hereby granted. Plaintiffs shall comply with the arbitrators’ award and execute the required release documents.


text:
    Nearhood v. Gunter

      C.P. of Clearfield County,
    no. 98-248-SD.

      Richard Mattern, for plaintiff.

      James Naddeo, for defendant.
    March 1, 1999
   AMMERMAN, J.,

The above-captioned matter came before this court in order to resolve the issue of whether William Gunter, defendant, should be required to undergo paternity testing for child support purposes. Both parties are represented by counsel, and hearing was held before the undersigned on December 8,1998 and January 12,1999. Briefs having been timely received, the matter is set for decision.

On October 6, 1993, the child at issue, Kelly Mariah Nearhood, was born to Andrea Nearhood, Mother, at a time when she was married to Terry Nearhood. The undisputed testimony of Mother and Mr. Nearhood shows that the two did not have sexual relations for a number of months around the conception period. Mr. Nearhood knew that he was not Kelly’s father because as he stated at the hearing, “it wasn’t possible.” Mother’s extramarital affair with defendant began around October 1992. Mother and defendant both agree that they had sexual intercourse at and around the time of conception.

Mother told Mr. Nearhood that he was not the child’s father during her pregnancy, and she informed defendant that she was carrying his child. After Kelly was bom, defendant continued to call Mother, requested to see photographs and wanted to see the child in person. Even after defendant married in February 1995, he continued to occasionally contact Mother regarding Kelly.

Following the child’s birth, Mr. Nearhood supported Kelly while the family remained together, and Kelly referred to him as her dad. He continued to pay a portion of her day care expenses and gave Kelly gifts even after separating from Mother. Mother and Mr. Nearhood separated on or about August 18, 1996, and were divorced on April 18, 1997. Currently, Mr. Nearhood does not have a relationship with Kelly, having terminated his contact following Mother’s filing for support.

Mother first filed for support against defendant on April 29,1998. On May 5,1998, Mother filed a support action against Mr. Nearhood. After Mr. Nearhood was excluded as the father by genetic testing, the paternity action against defendant was reinstated on August 7, 1998.

Defendant has argued that Mother has failed to rebut by clear and convincing evidence the presumption that Kelly is Mr. Nearhood’s daughter, and that Mother is estopped from pursuing her claim for support against him.

Mother’s position is that the presumption of paternity is an anachronistic doctrine and not applicable in this case because there are no intact family considerations. Further, Mother has argued that the testimony and evidence at the hearing is not strong enough to estop Mother from requesting the genetic testing of defendant.

In Pennsylvania, the presumption of paternity historically has been strong. Brinkley v. King, 549 Pa. 241, 244, 701 A.2d 176, 177 (1997). The well-established presumption that a child conceived or born during the marriage is presumed to be the child of the marriage may be overcome by clear and convincing evidence either that the presumptive father had no access to the mother or the presumptive father was physically incapable of procreation at the time of conception. Id. “Clear and convincing” means “testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.” Paulshock v. Bonomo, 443 Pa. Super. 409, 413, 661 A.2d 1386, 1388 (1995) (citing Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-1204 (1989)).

However, “time-worn principles of law may not be relevant where the family has been broken down, or where the structure does not conform to that contemplated by the law or doctrine in question.” Martin v. Martin, 710 A.2d 61, 62 (Pa. Super. 1998). The Superior Court recently stated that “the presumption of paternity is not to be blindly applied to all cases in which the husband and wife were married at the time.” Green v. Good, 704 A.2d 682 (Pa. Super. 1998). However, in the instant case, there is no question but that Kelly was conceived and bom into an intact family since Kelly was living with the Nearhoods for years before their separation. For purposes of the legal analysis in this case, there is an intact marital unit in which our society has an interest to protect. Amrhein v. Cozad, 552 Pa. 236, 714 A.2d 409 (1998). Therefore, the presumption of paternity applies to the case.

The court also believes that clear and convincing evidence has been presented which rebuts the presumption of paternity. As noted, the testimony of both Mother and Mr. Nearhood agreed in that the couple was not having intercourse with each other for many months both prior and after the period of conception. Although Mr. Nearhood was not serving a tour of duty at sea like the husband of the plaintiff in Green, supra, the evidence clearly indicates that Mr. Nearhood did not have access to Mother. Therefore, the court finds the presumption of paternity to be properly rebutted by Mother.

If the family unit remains intact up to and beyond the birth of the child, despite evidence that rebuts the presumption of paternity, estoppel may apply. Zadori v. Zadori, 443 Pa. Super. 192, 661 A.2d 370 (1995). Estoppel in paternity actions has been defined as: “merely the legal determination that because of a person’s conduct (e.g., holding out the child as his own, or supporting the child) that person, regardless of his true biological status, will not be permitted to deny parentage, nor will the child’s mother who has participated in this conduct be permitted to sue a third party for support, claiming that the third party is the tme father. As Superior Court has observed, the doctrine of estoppel in paternity actions is aimed at ‘achieving fairness as between the parents by holding them, both mother and father, to their prior conduct regarding the paternity of the child.’ ” Freedman v. McCandless, 539 Pa. 584, 591-92, 654 A.2d 529, 532-33 (1995). (emphasis in original) (footnotes omitted) (citation omitted)

Therefore, the determination of the relationship of the parties based upon the facts is critical to a resolution of any paternity claim. Dettinger v. McCleary, 438 Pa. Super. 300, 304, 652 A.2d 383, 385 (1994).

In Martin v. Martin, 710 A.2d 61 (Pa. Super. 1998), the facts indicated that Mr. Martin contested paternity of his wife’s child. Mr. Martin’s name was placed on the birth certificate without objection, they had lived together as a family and Mr. Martin signed “Daddy” to at least one card to the child. The evidence showed that Mr. Martin was unemployed and provided little financial support and offered little caretaking regarding the child. Mr. Martin left the parties’ residence approximately 10 months after the child’s birth, and had acknowledged the child for one and one-half years, after which time he requested the blood tests. The Superior Court stated, “[a] name on a certificate does not create a father/child relationship where one in fact does not exist” and concluded that the evidence did not support a finding of paternity by estoppel. Id. at 65.

As noted, estoppel may apply depending upon the court’s determination as to the relationship between the presumptive father and natural mother. Jones v. Trojak, 535 Pa. 95, 105, 634 A.2d 201, 206 (1993) (citing Christianson v. Ely, 390 Pa. Super. 398, 403, 568 A.2d 961, 963 (1990)) (“In Christianson, a mother was estopped from challenging the paternity of her husband without exhibiting that he had denied paternity and refused to accept responsibility for the child from the time he was reasonably aware of nonpaternity.”). “[A mother] cannot hold out her husband to be the father and thereafter, upon separation, charge a different man with paternity.” Id.

Blood testing of a putative father or the results thereof will be permitted or reviewed only when the doctrine of estoppel does not apply. Id. at 106, 634 A.2d at 206. It should also be pointed out that although the presumption of paternity and paternity by estoppel are related, they are distinct concepts. Paulshock v. Bonomo, 443 Pa. Super. 409, 412, 661 A.2d 1386, 1387 (1995).

Mother is estopped from claiming that anyone other than her former husband, Mr. Nearhood, is Kelly’s father. The facts show that Mother was honest about her pregnancy, and she and Mr. Nearhood lived with Kelly as a family for well over two years following the child’s birth. Fully aware of the reality of the situation, Mr. Nearhood allowed his name to be placed on the birth certificate and day care emergency contact forms. Mother acknowledged that Kelly and Mr. Nearhood referred to and treated each other as daughter and father. Mr. Nearhood was employed during the time that the family was intact, and supported both Kelly and his wife. His conduct in this regard is without a doubt admirable. Notwithstanding the issue of biology as determined by the genetic testing, the results of those tests are not admissible and Mr. Nearhood is also es-topped from claiming that he is not Kelly’s father. The fact that he has seen fit to discontinue contact with the child is unfortunate, but ultimately irrelevant.

Wherefore, the court enters the following:

ORDER

Now, March 1, 1999, consistent with the foregoing opinion, it is the order of this court as follows:

(1) Plaintiff is estopped from asserting a paternity claim regarding the child, Kelly M. Nearhood, against the defendant.
(2) The complaint for support filed by plaintiff, Andrea Nearhood, against defendant, William Gunter, is dismissed, and defendant shall not be required to undergo paternity testing.
(3) Terry Nearhood is estopped from denying parentage of Kelly M. Nearhood. The results of genetic testing of Mr. Nearhood relating to his parentage are not admissible evidence.
(4) The Domestic Relations Office shall reinstate the paternity/support action filed by plaintiff on May 5, 1998 against Terry Nearhood. No support obligation established against Mr. Nearhood shall be retroactive prior to the date of reinstatement.

      . Domestic Relations PACSES case no. 998100104.

      . The Nearhoods were married on August 9, 1989.

      . Defendant’s exhibit 2 shows Child Development & Family Council of Centre County’s cash receipts for the period January 1997 through May 1998. Mr. Nearhood did make payments in 1997 and 1998. Defendant’s exhibits 1 and 3 are emergency contact information sheets that list Mr. Nearhood as Kelly’s father.

      . Divorce decree was entered by the Court of Common Pleas of Clearfield County (no. 96-543-CD).

      . Genetic testing was conducted without objection from either Mother or Mr. Nearhood, neither of whom were represented by counsel.


author: O’BRIEN, J.,

text:
    Sayles v. Dept. of Public Welfare

      C.P. of Monroe County,
    no. 8403 Civil 1996.

      Edwin Krawitz, for plaintiffs.

      Gerard J. Geiger, for defendants caseworkers.

      William A. Slotter, for defendant DPW.

      Stephen Rhoads, for defendant MCCYS.
    January 4, 1999
   O’BRIEN, J.,

On November 14, 1995, 9-year-old Ashley Crafton was killed at a home in Delaware Water Gap, Monroe County, Pennsylvania. Her caretakers at the time of her death were defendants Eddie Pace, Desiree Richardson and Jabrica Willis. Two of these defendants, Richardson and Willis, subsequently pleaded guilty to Ashley’s murder. Richardson and Willis were friends of Ashley’s mother, plaintiff Kim Crafton. Crafton had voluntarily placed the minor child into the care and custody of defendants Pace, Richardson and Willis prior to serving a prison sentence. Ashley remained in the care and custody of defendants Richardson and Willis until the time of her death.

Plaintiff Matilda Sayles, Ashley’s maternal grandmother, and plaintiff Crafton filed a complaint on February 24,1997, alleging that defendants Monroe County Children and Youth Services (MCCYS), Department of Public Welfare of the Commonwealth of Pennsylvania (DPW), Monroe County, James Biesecker, William Dougherty, Joan Roberts and Sat Bahl were on notice of harm, abuse and drug trafficking taking place in the household, but failed to take any action to protect Ashley. Plaintiffs filed federal causes of action pursuant to 42 U.S.C. §§1983, 1985, and 1988, and state causes of action based on a violation of rights granted under the Child Protective Services Law, 23 Pa.C.S. §6301 et seq. and the Family Preservation Act, 62 Pa.C.S. §2171 et seq. In an opinion dated June 4, 1998, the Honorable William J. Nealon of the United States District Court for the Middle District of Pennsylvania dismissed plaintiffs’ federal claims and remanded the remaining state law claims to this court. Subsequent to the dismissal of their federal claims, plaintiffs filed a third amended complaint on October 20, 1998, to which defendants DPW, MCCYS, Monroe County, Biesecker, Dougherty, Roberts and Bahl have filed preliminary objections. Following the submission of briefs and oral argument on December 7, 1998, defendants’ preliminary objections are now before this court for disposition.

Preliminary Objections of Defendant

Department of Public Welfare of the Commonwealth of Pennsylvania

In response to plaintiffs’ third amended complaint, defendant DPW has filed a preliminary objection in the nature of a demurrer. When considering preliminary objections in the nature of a demurrer, this court must accept as true all well-pleaded material facts in the complaint, as well as inferences reasonably deducible therefrom. Webb Manufacturing Co. v. Sinoff, 449 Pa. Super. 534, 674 A.2d 723 (1996); Perkovic v. Barrett, 448 Pa. Super. 356, 671 A.2d 740 (1996); Winthrop & Co. Inc. v. Milgrom, 447 Pa. Super. 140, 668 A.2d 557 (1995). This court need not accept as true conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion. Penn Tile Insurance Co. v. Deshler, 661 A.2d 481 (Pa. Commw. 1995); Surgical Laser Technologies Inc. v. Commonwealth, Department of Revenue, 156 Pa. Commw. 48, 626 A.2d 664 (1993), citing Martin v. PennDOT, 124 Pa. Commw. 625, 556 A.2d 969 (1989). A demurrer may be sustained only if it is clear on the face of the pleading that the law will not permit the recovery sought. Morgan v. McPhail, 449 Pa. Super. 71, 672 A.2d 1359 (1996); MacGregor v. Mediq Inc., 395 Pa. Super. 221, 576 A.2d 1123 (1990). If there is any doubt, it should be resolved by the overruling of the demurrer. Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994).

In their third amended complaint, plaintiffs contend that defendant DPW failed to provide proper services for the implementation of the Family Preservation Act, to provide an adequate child protective service, to report drug abuse in the home, to rectify defendant Monroe County’s neglect, and to prevent further abuse of the child. In their preliminary objection, defendant DPW, as a Commonwealth agency, argues that plaintiffs’ claims are barred by 1 Pa.C.S. §2310, which grants sovereign immunity to the Commonwealth and its officials and employees acting within the scope of their duties. Nevertheless, this immunity is not absolute. Acts by a Commonwealth party may result in the imposition of liability if the acts fall within one of the following statutory exceptions:

(1) Vehicle liability
(2) Medical-professional liability
(3) Care, custody or control of personal property
(4) Commonwealth real estate, highways and sidewalks
(5) Potholes and other dangerous conditions
(6) Care, custody or control of animals
(7) Liquor store sales
(8) National Guard activities

(9) Toxoids and vaccines. 42 Pa.C.S. §8522.

Plaintiffs in their pleadings have not alleged the applicability of any of the above exceptions to the circumstances of the present case. Consequently, we conclude that the Commonwealth enjoys sovereign immunity which bars the claims brought against it by the plaintiffs. Therefore, the defendant DPW’s preliminary objections must be sustained and the plaintiffs’ complaint with respect to this party dismissed.

Preliminary Objections of Defendants Monroe County and MCCYS

In response to plaintiffs’ third amended complaint, defendants Monroe County and MCCYS have filed preliminary objections in the nature of a demurrer. The applicable standards this court must apply when considering preliminary objections in the nature of a demurrer have been discussed supra. Defendants Monroe County and MCCYS argue that the Political Subdivision Tort Claims Act grants them immunity from liability as local agencies. Specifically, defendants cite 42 Pa.C.S. §8541 which states: “Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” Nevertheless, a tort action may still be brought against these defendants as local agencies if plaintiffs can show that a common law or statutory cause of action for negligence exists, (42 Pa.C.S. §8542(a)), and show that one of eight enumerated exceptions to this immunity applies to the present case. These eight exceptions are listed in 42 Pa.C.S. §8542(b) as:

(1) Vehicle liability
(2) Care, custody or control of personal property
(3) Real property
(4) Trees, traffic controls and street lighting
(5) Utility service facilities
(6) Streets
(7) Sidewalks and
(8) Care, custody or control of animals

It is clear that plaintiffs are seeking damages resulting from an injury to a person (Ashley) allegedly caused by an act of the local agency defendants. It is equally clear that the immunity granted by the Political Subdivision Tort Claims Act applies to both Monroe County and MCCYS as local agencies. Plaintiffs’ pleadings fail to articulate how any of the exceptions to this immunity applies to their case.

Plaintiffs have submitted for this court’s consideration, federal case law supporting arguments which advance federal claims. In his opinion dismissing the federal claims, the distinguished Senior Judge William J. Nealon relied upon the decision of the Supreme Court in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). In that case, the court held that local governmental agencies have no affirmative duty to protect citizens from harm inflicted upon them by other private citizens in the absence of government custody or a “special relationship.” It is important to note that it was plaintiff Kim Crafton who voluntarily placed her daughter, Ashley, into an abusive situation. Defendants Monroe County and MCCYS never had custody of the child, nor did they play any role in placing Ashley into the care and custody of inadequate caregivers. In light of the fact that no custodial or special relationship existed, defendants Monroe County and MCCYS had no affirmative duty to protect her. Judge Nealon also rejected plaintiffs’ argument that Pennsylvania’s Child Protective Services Law established the kind of “special relationship” between local agency defendants and Ashley that would give rise to an affirmative duty to protect.

In light of Judge Nealon’s dismissal of their case, we decline plaintiffs’ invitation to rule on issues already adjudicated by a court of competent jurisdiction. Furthermore, regarding the state law claims, plaintiffs in their pleadings have failed to demonstrate the applicability of one of the enumerated exceptions listed in 42 Pa.C.S. §8542(b). Consequently, we find that the immunity enjoyed by defendants Monroe County and MCCYS as local agencies remains intact. Therefore, the preliminary objections of defendants Monroe County and MCCYS are sustained and plaintiffs’ complaint with respect to these parties is dismissed.

Preliminary Objections of Defendants James Biesecker, William Dougherty, Joan Roberts and Sat Bahl

James Biesecker, William Dougherty and Joan Roberts (individuals) were employed by defendant MCCYS while Ashley Crafton resided with defendants Pace, Richardson and Willis. Plaintiffs allege the defendant individuals received reports of child abuse being perpetrated upon Ashley and that they willfully ignored these reports rather than taking steps to intervene. In response to plaintiffs’ third amended complaint, defendant individuals have filed preliminary objections in the nature of a demurrer. The applicable standards this court must apply when considering preliminary objections in the nature of a demurrer have been discussed supra. Defendants argue that the Political Subdivision Tort Claims Act grants them immunity in the same manner as the local agency employer. In 42 Pa.C.S. §8545, the Act states that employees of local agencies are liable for civil damages only to the same extent as the employing local agency. However, where it is judicially determined that the act of the individual employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the immunity of the Political Subdivision Tort Claims Act shall not apply. 42 Pa.C.S. §8550. “Willful misconduct” for purposes of the statutory exception to governmental immunity has the same meaning as the term “intentional tort.” Kuzel v. Krause, 658 A.2d 856 (Pa. Commw. 1995). To engage in willful misconduct for the purposes of the Tort Claims Act, the employee must desire to bring about the result that followed his conduct or be aware that it was substantially certain to follow. Id.

In the present case, plaintiffs allege that in May 1995, school officials contacted the individual defendants to report child abuse perpetrated against Ashley. (Plaintiffs ’ third amended complaint, ¶¶32, 33,117,131.) Plaintiffs further allege that defendant individuals “willfully ignored” these complaints {Id., ¶¶118, 121) and acted with “deliberate indifference” and “willful disregard” for Ashley’s safety, as evidenced by their failure to intervene. {Id., ¶¶141, 142, 156, 157, 162, 163, 165, 167, 168.) Finally, plaintiffs allege that subsequent to Ashley’s death, defendant individuals tried to “cover up” the fact that school officials had reported incidents of abuse to them by denying ever having received such reports. {Id., ¶¶122, 124, 125.) In accordance with the standard discussed supra, this court is required to accept as true all well-pleaded material facts in the complaint, as well as inferences reasonably deducible therefrom. According to the complaint, defendant individuals had knowledge of the abusive and dangerous environment in which Ashley resided due to the complaints from the school officials. Furthermore, the language used in the pleadings implies that the defendant individuals deliberately elected not to intervene, knowing that as a result of this choice, the abuse was substantially certain to continue. This being the case, plaintiffs have sufficiently pleaded facts which, if true, may demonstrate willful misconduct on the part of defendant individuals, and consequently nullify their immunity under the Political Subdivision Tort Claims Act. Therefore, since plaintiffs have pled facts sufficient to assert a claim with respect to the willful misconduct of individual defendants, we conclude that the preliminary objections asserting immunity of the individual defendants under the Political Subdivision Tort Claims Act must be denied.

ORDER

And now, January 4, 1999, it is ordered as follows:

(1) The preliminary objections of defendant, The Department of Public Welfare of the Commonwealth of Pennsylvania, to plaintiffs’ third amended complaint are sustained, and the department is dismissed as a party in this proceeding.

(2) The preliminary objections of defendants County of Monroe, and Monroe County Children and Youth Services to plaintiffs’ third amended complaint are sustained, and those entities are dismissed as parties to this proceeding.

(3) The preliminary objections of Sat Bahl, an individual defendant named in the original complaint, but not named or subject to any allegations in the third amended complaint, are sustained and he is dismissed as a party to this proceeding.

(4) The preliminary objections of individual defendants James Biesecker, William Dougherty and Joan Roberts are dismissed.

(5) All remaining defendants are granted 20 days from the date hereof within which to file an answer to plaintiffs’ third amended complaint.

      . Defendant Richardson recently made a motion to withdraw her guilty plea, which is currently pending before President Judge Ronald E. Vican.

      . Sat Bahl had been named as a defendant in the original complaint. However, plaintiffs’ third amended complaint states no cause of action and contains no allegations against Sat Bahl, nor does it make reference to his name in the caption or the body of the complaint. Therefore, the preliminary objection of Sat Bahl must be sustained and plaintiffs’ complaint with respect to this defendant will be dismissed.


author: SCHAEFFER, S.J.,

text:
    Tolomei v. Erin Partners
    C.P. of Berks County,
    no. 1178-91 A.D.

      Peter M. Patton and Peter N. Munsing, for plaintiffs.

      David M. Kozlojf and Jerry R. Richwine, for defendants.
    November 23, 1998
   SCHAEFFER, S.J.,

This is a negligence action arising out of a slip and fall accident. Plaintiffs/appellants’ claims arose from plaintiff Barry Tolomei’s slip and fall, on or about March 7, 1989, on a loading dock at the Wetterau Foods warehouse, built by The Erin Corporation, leased to Wetterau Foods by Erin Partners, and located at the Berks Corporate Center, Temple, Berks County, Pennsylvania. Appellants appeal from this court’s order of September 17, 1998, granting defendants’ motion for summary judgment.

On February 28, 1991, plaintiffs initiated an action at law by writ of summons against original defendants Erin Partners Ltd., Stephen A. Levin & Others, Martin Sweren, Erin Stuart Inc., Erin Corp. and The Erin Corporation. A complaint was filed against the named defendants on November 16, 1992. In July 1994, upon stipulation of the parties, the court ordered that defendants Erin Partners and The Erin Corporation be substituted for the original defendants, who were not the proper parties to the suit. On July 22,1994, plaintiffs filed an amended complaint. On June 2, 1995, defendants Erin Partners and The Erin Corporation filed an answer and new matter. On June 8, 1995, plaintiffs filed a reply to new matter. After extensive discovery, defendants filed a motion for summary judgment, which was argued before this court on September 9, 1998.

In their concise statement of matters complained of on appeal, appellants raise the following issues:

“(1) Plaintiffs complain that the court erred in granting defendants’ motion for summary judgment where the evidence of record showed there are genuine issues of material fact.
“(2) Plaintiffs complain that the court erred in granting defendants’ motion for summary judgment where defendants failed to establish that there was no genuine issue of material fact whether The Erin Corporation, the company that built the warehouse where plaintiff was injured, created a dangerous condition on the premises, pursuant to its construction contract with the landowner Erin Partners, that caused plaintiff’s injuries.
“(3) Plaintiffs complain that the court erred in granting defendants’ motion for summary judgment where defendants failed to establish that there was no genuine issue of material fact whether plaintiff’s injuries were caused by a dangerous condition on a portion of the premises over which Erin Partners, the landlord of the premises on which plaintiff was injured, retained control.
“(4) Plaintiffs complain that the court erred in granting defendants’ motion for summary judgment where defendants failed to establish that there was no genuine issue of material fact whether plaintiff’s injuries were caused by a dangerous condition on a portion of the premises Erin Partners contracted, in its lease with plaintiff’s employer Wetterau Inc., to repair.
“(5) Plaintiffs complain that the court erred in granting defendants’ motion for summary judgment where defendants failed to establish that there was no genuine issue of material fact whether plaintiff’s injuries were caused by a dangerous condition on a portion of the premises over which Erin Partners undertook to repair by implication.
“(6) Plaintiffs complain that the court erred in granting defendants’ motion for summary judgment where defendants failed to establish that there was no genuine issue of material fact whether plaintiff’s injuries were a foreseeable consequence of Erin Partners’ failure to fulfill its contractual obligation to construct the premises in accordance with good engineering and construction practices.
“(7) Plaintiffs complain that the court erred in granting defendants’ motion for summary judgment where the court relied solely on oral testimony presented by defendants in making its ruling.”

The facts of the case are as follows: In March of 1989, Barry Tolomei worked at Wetterau Foods as a picker and tow motor operator. His job was to load and unload trucks that pulled up to the docks at the grocery storage warehouse known as “T’town.” On the date of the accident, Tolomei was to drive a riding tow motor into a full truck trailer and remove skids of products and place them in the warehouse. The tow motor was a four-wheel riding vehicle which was similar to a forklift in that it raised skids of products off of the floor of the truck so that they could be moved into the warehouse. To unload the trucks at the loading dock with the tow motor, Tolomei lifted a steel dock plate, which hung outside the dock, and placed it inside the truck to be unloaded, forming a bridge from the loading dock into the trailer. On the day of the accident, it was rainy. The dock plate was wet. Tolomei knew that the dock plate was wet. (Deposition of Barry Tolomei, p. 99.) Tolomei was injured during the normal course of his employment with Wetterau Foods when he was unloading a truck trailer and some products fell off of the lift he was towing. In response to the boxes falling, Tolomei turned off the tow motor and jumped onto the dock plate. (Deposition of Barry Tolomei, pp. 95-96, 100-101.) When Tolomei’s feet hit the dock plate, they slipped out from under him and he fell to the ground, landing with his full weight on his left hip.

At the time of Tolomei’s accident, Wetterau Foods, Tolomei’s employer, was the commercial tenant of the leased premises. Wetterau had leased the warehouse from Erin Partners. The obligations between the lessor, Erin Partners, and the lessee, Wetterau Foods, were determined by the written lease agreement between them.

In reviewing a motion for summary judgment, the court views the record in the light most favorable to the non-moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-45, 615 A.2d 303, 304 (1992). However, plaintiffs cannot avoid summary judgment where they have no evidence to support an issue on which they bear the burden of proof. Regardless of plaintiffs’ allegations in the pleadings, plaintiffs, when faced with a motion for summary judgment, must show that the evidence they can then produce, with all inferences therefrom drawn in their favor, would permit the finder of fact to render a verdict in their favor. “If a plaintiff has failed to establish a prima facie case, then as a matter of law, summary judgment is proper, because at this stage there are no material issues of fact to be decided.”

In a negligence case, such as the case at bar, the plaintiff has the burden of establishing that the defendant had a duty to the plaintiffs, that the defendant was negligent in failing to perform that duty, or in the manner in which it performed that duty, and that such negligence was a substantial factor in causing the plaintiffs’ harm.

Plaintiffs allege the plaintiff-husband slipped on a wet dock plate. The plate is as pictured in exhibit 15 attached to the deposition of the plaintiff, Barry Tolomei, in this case. It was a standard non-skid type plate embossed with diamond friction points. There is no dispute of fact as to what the plate was and how it was made.

Plaintiffs have shown no evidence of any defect in the way the plate was designed, manufactured, placed, or used by any one or more of the defendants.

We find that the standard dock plate of the type in question, without some defect, is not, per se, unreasonably dangerous, even if wet, just as a concrete sidewalk, without some defect, is not, per se, unreasonably dangerous, even if wet, and just as a blacktop highway is not, per se, unreasonably dangerous, even if wet.

Before a finder of fact can find that a steel dock plate of the type here in question was unreasonably dangerous, it must have evidence, which it accepts, of a defect, or of an unreasonably dangerous condition.

Here, the plaintiffs offered no such evidence. They did not produce evidence that the dock plate in question was other than the one pictured in exhibit 15. They did not show that the dock plate had any defect or unusual condition.

The plaintiffs’ argument that the dock plate should have been covered with a canopy, misses the point. A wet dock plate is not itself unreasonably dangerous, and, therefore, no duty arose to cover it.

Furthermore, the trier of fact, on the evidence offered, could not have found that Erin Partners had a duty to the plaintiffs. Erin Partners was the landlord out of possession.

“Pennsylvania law follows the general rule that a lessor of land is not liable to the lessee or to others ... for the physical harm caused by either [physical or natural] conditions on the land which existed when the land was transferred or which arise after the transfer of possession.” Deeter v. Dull Corp. Inc., 420 Pa. Super. 576, 581, 617 A.2d 336, 339 (1992). (citations omitted) “This principle is based upon the theory that when the lessor leases the land, the law regards the lease transaction as the equivalent to the sale of the land for the term of the lease.” Id. at 581, 617 A.2d at 339; Restatement (Second) of Torts §356, comment a. Therefore, the tenant is considered the landowner for tort purposes. Smith v. King’s Grant Condominium, 418 Pa. Super. 260, 266, 614 A.2d 261, 264 (1992).

There are several exceptions to this general rule, but none of them applies in the case at bar.

Next, plaintiffs argue that since they presented evidence that Erin Partners caulked a leak in the dock seal abutting the wall on one occasion, defendant, Erin Partners, retained control over the loading dock and the dock plates. This is insufficient. The lease between the parties clearly states that Erin Partners, the lessor, was not required to make any repairs unless and until the lessee gave the lessor written notice of the need to repair. Erin Partners had no general or continuing duty to inspect or repair the dock area until requested by Wetterau Foods, its lessee, to do so, and, therefore, one repair, made after notice, or without notice, is insufficient to give Erin Partners control of the loading dock and impose upon it a continuing duty to inspect and maintain it. While plaintiff claimed that he gave notice to his supervisors at Wetterau Foods of the dock plate getting wet, plaintiffs presented no evidence of any written notice being given to Erin Partners to repair the dock area.

Next, plaintiffs assert that because it is the lessor’s obligation to make “structural repairs” to the walls, defendant retained control over the dock doors on the wall, and was therefore responsible for putting a canopy over the openings. The lease provides, “The lessor shall keep and maintain the roof of the building in good condition and shall make all structural repairs to the building (including without limitation to the walls) . . . .” “Without limitation to the walls” is not ambiguous language, and this phrase is not capable of an interpretation that includes, as a “structural repair,” adding a canopy or awning over a loading dock door.

Nor could the trier of fact have found that the dock plate was in a “common area” and that, therefore, Erin Partners retained control over the area.

Appellants also claim that the court erred in granting defendants’ motion for summary judgment in favor of The Erin Corporation. Plaintiffs argue that The Erin Corporation can be liable to the plaintiffs because The Erin Corporation, in constructing the warehouse and the dock area, created a dangerous condition on the premises which caused the plaintiff’s harm. The dangerous condition specified was the construction of the dock area without covering the dock plates in a way that they could not get wet. But even plaintiff, from his personal knowledge, has stated that placing an overhang over the loading dock would not have prevented the dock plates from getting wet because, if it is raining in the direction of the building, the rain is going to hit the dock plate when it is hanging down. (Deposition of Barry Tolomei, p. 82.) However, as we have previously determined, dock plates, of the type used here, even if wet, are not, per se, unreasonably dangerous.

Finally, appellants contend that the court erred in granting defendants’ motion for summary judgment based on oral testimony presented by the defendants. This is not a correct statement. We did not enter summary judgment against plaintiffs based on defendants’ oral testimony. We entered summary judgment against plaintiffs because the plaintiffs’ evidence did not make out a prima facie case. The rule in Nanty-Glo is not applicable.

For the aforementioned reasons, we respectfully request that the Superior Court affirm the court’s order of September 17, 1998.

      . Pennsylvania Rules of Civil Procedure 1035.1-1035.5 govern summary judgment, and they state, in pertinent part:
      “After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
      “(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
      “(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2
      “The adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within 30 days after service of the motion identifying
      “(1) one or more issues of fact arising from the evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
      “(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.

        “(b) An adverse party may supplement the record or set forth the reasons why the party cannot present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence.
      “(c) The court may rule upon the motion for judgment or permit affidavits to be obtained, depositions to be taken or other discovery to be had or make such other order as is just.
      “(d) Summary judgment may be entered against a party who does not respond.” Pa.R.C.P. 1035.3.

      . The Supreme Court of Pennsylvania has held that “Anon-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996).

      . Ack v. Carroll Township Authority, 661 A.2d 514, 516-17 (Pa. Commw. 1995).

      . The exceptions are: “where the lessor contracts to repair; where the lessor fails to disclose dangerous conditions to the lessee; where the land is leased for the purpose of inviting the public; where the lessor retains a portion of the land but allows the lessee to use it; where the lessor retains a portion of the land that is necessary to maintain the leased part in a safe condition; and, where the lessor negligently makes repairs on the land while it is in the possession of the lessee.” Deeter at 581, 617 A.2d at 339. (citations omitted)