author: CHESLOCK, J,

text:
    Graver v. Klein

      C.P. of Monroe County,
    no. 2861 CV 2000.

      Michael J. Eagen, for plaintiff.

      John R. Hill, for defendant Klein.

      Paul A. Barrett, for defendant Pocono Medical Center.

      Amy A. Shwed, for defendant Pocono Surgical Associates.
    May 12, 2005
   CHESLOCK, J,

This matter is before the court on plaintiffs Herbert H. Graver and Anna Graver’s motion for post-trial relief. For the reasons set forth below, we deny their motion for new trial.

A concise summary of the facts are as follows: On May 12,1998, plaintiff Herbert H. Graver was admitted to Pocono Medical Center with a preoperative diagnosis of cellulites and intramuscular abscess of the left leg. Defendant Lawrence Klein M.D. performed three surgical procedures on Graver. Due to the failure of the wound to heal and the worsening condition of Graver, he was taken to Lehigh Valley Hospital where surgery was performed and a foreign body, i.e., gauze was found in Graver’s leg. Thereafter, a medical malpractice action was commenced by plaintiffs against defendants. Trial commenced on December 8, 2003. On December 11, 2003, the jury returned a verdict in the amount of $25,619.74 in favor of plaintiffs and against defendants. On December 18, 2003, plaintiffs filed a motion for delay damages and a motion for post-trial relief under Pa.R.C.P. 227.1. On December 23, 2003, Klein filed a motion for post-trial relief, however, on February 11, 2004, he withdrew his post-trial motion. A hearing was held on April 19, 2005, at which time defendants advised the court that they did not oppose plaintiffs’ motion for delay damages. We will now dispose of plaintiffs’ motion for a new trial.

Pursuant to Pa.R.C.P. 227.1, we may, after trial and upon written motion for post-trial relief by any party, order a new trial as to any or all of the issues;... or enter any other appropriate order. Pa.R.C.P. 227.1(a)(1), (5). The judge considering the post-trial motions can order a new trial pursuant to Pa.R.C.P. 227.1 if he concludes that a factual or legal mistake was made at the trial level, and that the particular circumstances of the case, the mistake, or mistakes form a sufficient basis to order a new trial. Morrison v. Department of Public Welfare, 538 Pa. 122, 646 A.2d 565 (1994). In essence, the purpose of Rule 227.1 is “to provide the trial court [with] the first opportunity to review and reconsider its earlier rulings and correct its own errors.” Chalkey v. Roush, 757 A.2d 972, 975 (Pa. Super. 2000), quoting Soderberg v. Weisel, 455 Pa. Super. 158, 687 A.2d 839 (1997).

Plaintiffs request a new trial because they argue that the verdict was against the weight of the evidence because the jury did not award any noneconomic damages, including that for pain and suffering. Plaintiffs contend that the jury verdict found all defendants negligent and that their negligence was a factual cause of Graver’s injuries; however, the verdict was patently inadequate because it failed to compensate Graver for pain and suffering. In addition, plaintiffs contend that Klein’s counsel violated the “golden rule” during his closing summation.

A trial court has broad discretion to grant or deny a new trial. Zeigler v. Detweiler, 835 A.2d 764, 767 (Pa. Super. 2003), citing Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000). A new trial will be granted on the grounds that the verdict is against the weight of the evidence where the verdict is so contrary to the evidence it shocks one’s sense of justice. Pentarek v. Christy, 854 A.2d 970, 975 (Pa. Super. 2004), citing Campagna v. Rogan, 829 A.2d 322, 328 (Pa. Super. 2003).

Defendants have argued that plaintiffs waived the issue of the inadequacy of the verdict because they failed to object and poll the jury before it was discharged. In support, defendants cite Kaufman v. Campos, 827 A.2d 1209 (Pa. Super. 2003), and Picca v. Kriner, 435 Pa. Super. 297, 645 A.2d 868 (1994). In Picca, the defendant conceded that he was at fault for the accident; however, he argued that most of the injuries plaintiff complained of were pre-existing. The jury found the defendant negligent; however his negligence was not a substantial factor in causing plaintiff’s injuries. After filing post-trial motions, the trial court granted a new trial because the jury verdict was so contrary to the evidence as to shock its conscience. On appeal, the Superior Court held that plaintiff waived her right to ask for a new trial by not objecting to the problems with the verdict before the jury was dismissed. The Kaufman case involved a plaintiff who slipped and fell in front of a building and sued the owner. The jury found that the plaintiff was 50 percent comparatively negligent and awarded damages in the exact amount of her medical bills. Prior to the verdict, the jury asked a specific question regarding the award of only medical expenses. After responding to the question, the court asked counsel if any additional instruction were desired. Counsel did not require additional instructions and after the verdict was announced, counsel made no objection and the jury was dismissed. The Superior Court determined that the plaintiff should have objected when the jury indicated that it was going to award medical expenses only. The Superior Court reversed the trial court’s award of a new trial. On the other hand, plaintiffs deny that they waived the issue of the inadequacy of the verdict for failing to object and poll the jury before it was discharged. Plaintiffs argue that the case of Criswell v. King, 575 Pa. 34, 834 A.2d 505 (2003), is controlling. We agree. In Criswell, the plaintiffs brought a personal injury action against defendant stemming from a motor vehicle accident. The jury returned a verdict in favor of defendant and plaintiffs motioned for a new trial. In granting the new trial, the trial court noted that the defendant had “more or less conceded his negligence” and that most of the expert testimony centered on whether plaintiff had recovered from the injuries, rather than the underlying cause of the injuries. Defendant appealed the trial court’s decision to grant a new trial and the Superior Court reversed. The Superior Court found that the plaintiffs waived the weight challenge by failing to object after the jury returned its verdict and before it was discharged. The Pennsylvania Supreme Court granted allocatur to determine whether the Superior Court was correct in holding that a party must object to the verdict prior to the discharge of the jury in order to preserve a claim that the verdict was contrary to the weight of the evidence. In discussing the cases cited by the parties and the prior holdings of the Superior Court, the Supreme Court noted that the only reported opinion which the Superior Court has explicitly followed Picea, is Holliday v. Page, 440 Pa. Super. 490, 656 A.2d 136 (1995). ThqHolliday court interpreted Picea to mean that only a “failure to object to an ambiguous or flawed jury verdict prior to the dismissal of the jury will result in the waiver of that claim on appeal.” Criswell, supra 575 Pa. at 44, 834 A.2d at 511, citing Holliday, 440 Pa. Super, at 494, 656 A.2d at 138. (emphasis in original) The Supreme Court then determined that the Superior Court had cited to Picea without acknowledging refinements in the post -Picea decisions involving weight of the evidence claims. The Criswell court stated that a claim challenging the weight of the evidence ripens only after the verdict, hence, it is properly preserved by filing timely post-trial motions. The basis for a weight claim gives the trial court the opportunity, after hearing the evidence presented at trial, to conclude that the verdict was so contrary to what it heard and observed that a new trial is warranted.

In the case sub judice, we believe that the challenge made by plaintiffs is a weight challenge and not an objection to a flawed or ambiguous jury verdict. Accordingly, we do not believe that plaintiffs have waived their challenge by failing to object and poll the jury before it was discharged. We will accordingly proceed to our next query as to whether the jury verdict was so contrary to the evidence that it shocks our sense of justice.

Throughout the trial, the defendants based their defense on the specifics of the disease and the statistics of recovery from the condition of necrotizing fascitis. We believe that the jury may have determined that some of Graver’s injuries were caused by the retained gauze in Graver’s leg; however, any pain and suffering was from the necrotizing fascitis and not as a result of any negligence on behalf of defendants. As the fact-finders, the jury is at liberty to believe all, part, or none of the evidence presented, to make all credibility determinations, and to resolve any conflicts in the evidence. Wallace v. Pastore, 742 A.2d 1090 (Pa. Super. 1999). The “existence of compensable pain is an issue of credibility and juries must believe that plaintiffs suffered pain before they compensate for that pain.” Davis v. Mullen, 565 Pa. 386, 396, 773 A.2d 764, 769 (2001). We will not foreclose the jury from making such a determination, which is within their purview. The jury heard all of the evidence and determined that all defendants were negligent and that their negligence was a factual cause of Graver’s injuries, but that he did not have pain and suffering as a result. Defendants emphasized at trial that, statistically, many individuals die or lose their limbs from necrotizing fascitis. Expert witness, Dr. Verazin, testified that necrotizing fascitis is a very serious illness and even without the retained gauze would have a long-term effect on Graver’s leg. (N.T. December 10, 2003, pp. 91-98.) The jury may have determined that, although the gauze remained in Graver’s leg after the initial surgeries and treatment, any pain and suffering he suffered was a direct result of necrotizing fascitis and not any negligence on the part of defendants. Consequently, we do not believe that the verdict in the instant case was against the weight of the evidence so as to shock our sense of justice.

Although plaintiffs argue that the award was in the exact amount of the stipulated medical expenses, defendants argue that it was 5‡, over the stipulated amount. A jury is free to believe all, some or none of the evidence, therefore, they are entitled to reject any and all evidence to the point where the verdict is disproportionate to the uncontested evidence so as to defy common sense and logic. Neison v. Hines, 539 Pa. 516, 521, 653 A.2d 634, 637 (1995). We do not believe that the verdict in this case is disproportionate so as to defy common sense and logic. Moreover, the jury verdict slip did not delineate between medical bills and pain and suffering as per plaintiffs’ request. Plaintiffs cannot now complain that the jury award failed to include an award for pain and suffering. Accordingly, we will not grant plaintiffs a new trial on this issue.

Finally, plaintiffs have requested a new trial because they argue that Klein’s counsel violated the “golden rule” during his closing summation. We note that a trial lawyer is permitted great latitude in his closing arguments, however, not so broad so as to include facts not in evidence which are prejudicial to the opposing party. Millen v. Miller, 224 Pa. Super. 569, 308 A.2d 115 (1973). “The ‘golden rule’ argument involves an appeal to the jury to place itself in the shoes of the parties and ask themselves what each of them would have done under the circumstances of the case.” Id. at 573, 308 A.2d at 117.

In the case sub judice, plaintiffs objected to the closing remarks of Klein’s counsel. The objection was raised after the following remarks:

“One last thing. You heard the percentages with regard to the mortality rate. That is the rate people die with regard to this specific disease. I asked Dr. Pollock if it’s 73 percent, and he agreed with me. It seems high, but that’s the type of disease it is.
“So if you have 10 people, seven of them are going to die from this type of disease or infection, and the remaining people may lose their legs. You may want to forget and disregard what I just told you. You can do that. That’s fine.
“When you go back and malee a decision, don’t forget this. I think this is what hits the case right on the head. When 12 people go back into a room to make a decision — 73 percent of 12 is around eight. When you’re making a decision in this case as to the negligence and the harm and the damages incurred by Mr. Graver, think about if eight of you, of all 12 of you had that type of necrotizing fascitis. Eight of you would die. Four of you would be fortunate to live, but the remaining four, probably two of you would have lost your leg.
“As I said in this case, the medical care provided to Mr. Graver was appropriate and proper. He said he’s a lucky man. I think he is. The doctor, nurses, physical therapists, they weren’t 100 percent correct on this thing. They didn’t nail 100 percent, but don’t think they’re negligent. Thank you very much for your time.” (N.T. December 11,2003, pp. 168-69.) Plaintiffs object to the reference indicating that eight of 12 would die from the disease. Plaintiffs argue that this reference was meant to not only ask the jury to put themselves in Graver’s shoes but to also imagine how they would feel in his shoes, to be fortunate enough to live and not lose his leg.

Pennsylvania courts have held that the conduct of trial counsel should be directed toward a presentation of the issues. Id. (citations omitted) In the instant case, defense counsel emphasized the devastating effects of necrotizing fascitis. In his closing argument, Attorney Hill used statistical references to the mortality rate to demonstrate the severity of the disease. At no time did Klein’s counsel ask the jury to step into Graver’s shoes and ask themselves what they would have done under the circumstances. The comments were made as a result of the testimony of Dr. Verazin, whose testimony was part of the evidence presented by Klein. Therefore, counsel was arguing evidence which was placed into the record. Although he referred to 12 people, Attorney Hill was emphasizing the impact the disease would have on 12 people, and not for the jury to place themselves in Graver’s shoes. Accordingly, we do not believe that Attorney Hill violated the “golden rule” and we will not grant plaintiffs’ request for a new trial.

Based on the foregoing, we enter the following order:

ORDER

And now, May 12,2005, upon consideration of plaintiffs Herbert H. Graver and Anna Graver’s motion for post-trial relief, defendants Lawrence Klein M.D., Pocono Surgical Associates P.C. a/k/a Pocono Surgical Associates and Pocono Medical Center’s response thereto and oral argument held thereon, it is hereby ordered that plaintiffs Herbert H. Graver and Anna Graver’s motion for post-trial relief is denied.


source: Caselaw Access Project

author: STRASSBURGER, J,

license: Public Domain

text:
    Budner v. Allegheny General Hospital

      C.P. of Allegheny County,
    no. GD 03-8160.

      Louis B. Loughren, for plaintiff.

      Thomas B. Anderson, for defendant.
    March 9, 2005
   STRASSBURGER, J,

Plaintiff Amy W. Budner fell as she was exiting a high, swivel-type chair after a physical therapy treatment session at Allegheny General Hospital t/d/b/a Sports Medicine Services on May 3, 2001, allegedly causing her injuries to her neck, back, ribs, coccyx, and right shoulder.. Mrs. Budner filed the instant action, averring Allegheny General Hospital was liable for the dangerous condition that caused her injury.

Plaintiffs Amy W. Budner and Martin E. Budner, her husband, initiated the instant case against Allegheny General Hospital t/d/b/a Sports Medicine Services, Rehabilitation Management Systems Inc. t/d/b/a Sports Medicine Services, West Penn Allegheny Health System Inc. t/d/b/a Sports Medicine Services (corporate defendants), and Tracee Kallet by writ of summons on April 25,2003. Defendants filed apraecipe for rule to file complaint on May 13,2003. The Budners filed the complaint on June 4, 2003, with causes of action by Mrs. Budner against all defendants for negligence and by Mr. Budner against all defendants for loss of consortium.

On July 30,2003, all defendants filed preliminary objections stating the Budners’ complaint fails to conform to a rule of court pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(2). Specifically, defendants claimed the Budners were asserting a professional liability action against licensed professional and health care providers pursuant to Pa.R.C.P. 1042.2 et seq. Defendants objected because the Budners’ complaint did not include the requisite certificates of merit. The Budners responded that this case was merely a premises liability case, not a professional liability case, so filing certificates of merit was not necessary. The Honorable Judge Judith L.A. Friedman heard argument and overruled all preliminary objections on October 21, 2003.

On January 24, 2005, all defendants requested leave of court to file a motion for summary judgment. This court granted that motion and scheduled argument. On February 16, 2005, this court granted defendant Allegheny General Hospital’s motion for summary judgment. The Budners filed a timely appeal.

This court will attempt to describe the specific chair and the actions that caused Mrs. Budner’s injury. Mrs. Budner was attending a physical therapy session that involved a whirlpool treatment for her injured foot at a facility owned by Allegheny General Hospital. To put her feet into the whirlpool, Kallet, the physical therapist, directed Mrs. Budner into a high chair by having her step up onto the chair. Kallet then rotated the chair 180 degrees, so Mrs. Budner’s feet could be in the whirlpool. When the treatment ended, Mrs. Budner turned the chair 90 degrees, Kallet wiped her feet, and placed a towel below her. Instead of continuing the rotation to the 180 degree point, Mrs. Budner attempted to get down from the chair and then fell, thereby causing her injuries.

The issue before this court is whether the Budners stated a sufficient premises liability claim against Allegheny General Hospital. Allegheny General Hospital argued that this court should apply the three-part test for premises liability stated in the Restatement (Second) of Torts §343 and adopted by Zito v. Merit Outlet Stores, 436 Pa. Super. 213, 216, 647 A.2d 573, 574-75 (1994). Defendants essentially argued that the chair was not dangerous, and even if the chair was dangerous, Allegheny General Hospital did not know and should not have known about the dangerous condition.

The Budners, however, argued that the chair itself, together with the negligence of the physical therapist in not turning Mrs. Budner the entire 180 degrees, was the cause of the injury. In other words, the Budners wanted this court to believe that the chair was a dangerous condition of land and Allegheny General Hospital was liable for Mrs. Budner’s injuries because they should have known that she could forget to rotate the chair the entire 180 degrees before trying to get down from the chair. It is precisely this argument which led this court to grant summary judgment in favor of defendant.

The chair in itself was not the cause of Mrs. Budner’s injury. The Budners are really alleging it was Kallet’s negligence by not helping Mrs. Budner from the chair or positioning the chair in a safe way for Mrs. Budner to get down that caused Mrs. Budner’s injury. This alleged negligence occurred at the conclusion of a physical therapy treatment session, which makes this professional negligence and therefore not merely premises liability as the Budners want this court to believe.

This case is virtually on all fours with Grossman v. Barke, 2005 WL 249045 (Pa. Super. 2005), where plaintiff’s decedent fell off a table in a doctor’s office. The trial court ruled, and the Superior Court affirmed, that there was negligence, it was professional negligence, not ordinary negligence. The Budners have in actuality stated a cause of action for professional negligence, not premises liability. However, because the Budners failed to file a timely certificate of merit, they cannot now pursue their professional negligence claim. Thus, the Superior Court should affirm.

      . Negligence counts against the corporate defendants (Allegheny General Hospital, Rehabilitiation Management Systems Inc., and West Penn Allegheny Health System Inc.) also included a count for vicarious liability.

      . It is undisputed that Kallet is a licensed provider as a physical therapist purusantto Pa.R.C.P. 1042. l(b)(l)(x) and that corporate defendants are also health care providers purusant to Pa.R.C.P. 1042.1 (b)(l)(0-

      . The preliminary objections also included a motion for a more specific pleading pursuant to Pa.R.C.P. 1028(a)(3).

      . In plaintiffs’ answer to defendants’ motion for summary judgment, plaintiffs informed this court that they were voluntarily discontinuing the case against defendants Rehabilitation Management Systems t/d/b/a Sports Medicine Services, West Penn Allegheny Health System t/d/b/a Sports Medicine Services, and Tracee Kallet, and this court entered an order on February 16,2005, to that effect. Mr. Budner also had a claim for loss of consortium. Because Mrs. Budner has failed to demonstrate liability for her injuires, Mr. Budner cannot recover from Allegheny General Hospital for loss of consortium. See e.g., Barchfeld v. Nunley by Nunley, 395 Pa. Super. 517, 577 A.2d 910 (1990) (noting the success of loss of consortium claim “has always been dependent upon the injured spouse’s right to recover.”). Therefore, this court dismissed Mr. Budner’s claim along with Mrs. Budner’s.

      . “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
      “(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
      “(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
      “(c) fails to exercise reasonable care to protect them against the danger.” Zito v. Merit Outlet Stores, 436 Pa. Super. 213, 216, 647 A.2d 573, 574 (1994).


author: GENTILE,

text:
    Office of Disciplinary Counsel v. Chadwick

      Disciplinary Board Docket no. 3 D.B. 1997, 72 D.B. 2003.

      Member, February 7, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GENTILE,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On May 22,2003, Office of Disciplinary Counsel filed petitions for discipline at no. 3 D.B. 1997 and no. 72 D.B. 2003 against respondent, H. Beatty Chadwick. No. 3 D.B. 1997 charged respondent with violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement arising from his conviction of two counts of simple assault. No. 72 D.B. 2003 charged respondent with violations of the Rules of Professional Conduct arising out of his conduct during the course of his divorce action. Respondent filed answers to the petitions on July 2, 2003.

A disciplinary hearing was held on the petition at no. 3 D.B. 1997 on October 30,2003, before Hearing Committee 2.07 comprised of Chair Jay H. Karsch, Esquire, and Members Lester G. Weinraub, Esquire, and James Keath Fetter, Esquire. Respondent was represented by James C. Schwartzman, Esquire.

Following the submission of briefs by the parties, the committee filed a report on March 3, 2004, and recommended a private reprimand.

Petitioner filed a brief on exceptions on March 19, 2004. Respondent filed a brief on exceptions and reply brief on March 23, 2004. Petitioner filed a brief opposing exceptions on April 10, 2004.

A disciplinary hearing was held on the petition at no. 72 D.B. 2003 on December 2,2003, before Hearing Committee 2.06 comprised of Chair Anton H. Rosenthal, Esquire, and Members James J. Byrne Jr., Esquire, and Terry D. Weiler, Esquire. Respondent was represented by Dana Pirone Garrity, Esquire.

Following the submission of briefs by the parties, the committee filed a report on September 23, 2004, finding that respondent violated the Rules of Professional Conduct as charged in the petition for discipline and recommending that he be suspended for a period of three years.

Respondent filed a brief on exceptions on October 12, 2004. Petitioner filed a brief opposing exceptions on October 29,2004.

By board motion to consolidate, the petitions for discipline were consolidated for adjudication at the meeting of November 17, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is situated at Suite 1400, 200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.
(2) Respondent, H. Beatty Chadwick, was bom in 1936 and was admitted to practice law in the Commonwealth of Pennsylvania in 1961. He last maintained an office for the practice of law at 280 South Roberts Road, Box 431, Bryn Mawr, Pennsylvania. Respondent has been incarcerated in the Delaware County Prison, Thornton, PA 19323 since April 5, 1995.
(3) Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.
(4) Respondent has no prior history of discipline.
Charge at No. 3 D.B. 1997
(5) On November 2,1994, in connection with divorce litigation pending between respondent and his wife, the Court of Common Pleas of Delaware County issued a bench warrant for respondent’s arrest after finding him in civil contempt.
(6) Respondent was represented by counsel when the bench warrant was issued and was aware that an order had been issued for his arrest.
(7) The bench warrant was transferred from Delaware County to the sheriff’s office of Montgomery County for possible execution upon respondent at an address located in Montgomery County.
(8) Deputy Sheriff Frank LoGrippo attempted to execute the warrant in November or December 1994 but did not locate respondent.
(9) On April 4, 1995, Deputy LoGrippo received information that respondent would be at a dental appointment at 1420 Locust Street in Philadelphia at 7 a.m. on April 5, 1995.
(10) Deputy LoGrippo and his partner, Deputy Richard Zadroga, went to the vicinity of 1420 Locust Street at approximately 6 a.m. on April 5, 1995.
(11) At 7:10 a.m. the deputies entered the dental office, identified themselves to the receptionist and asked what room respondent was in. The receptionist confirmed that respondent was present and indicated which room he was in.
(12) The deputies were dressed in jeans and sweatshirts and had neck badges and wallet badges.
(13) The deputies walked into the room and found respondent seated in a dental chair facing away from the door.
(14) The deputies called him by name, said they were from the Montgomery County Sheriff’s Department and that they had a warrant for his arrest and asked him to stand up. Respondent initially denied who he was. The deputies again asked him to stand.
(15) Respondent jumped up and started punching wildly. A physical struggle ensued involving respondent and the two deputies. Deputy Zadroga received a black eye and respondent had lacerations on his forehead, two black eyes, and a bloody nose.
(16) Respondent was transported to Delaware County Prison and has remained incarcerated on the civil contempt findings since the day of his arrest.
(17) Respondent was charged with two counts of simple assault, two counts of recklessly endangering another person, and two counts of resisting arrest.
(18) On August 15, 1996, following a two-day non-jury trial, the court found respondent guilty of two counts of simple assault and not guilty of two counts of recklessly endangering another person. The court entered judgment of acquittal on the two counts of resisting arrest, as the Montgomery County deputies had not complied with statutory requirements for executing a foreign warrant and did not have official authority to arrest respondent in Philadelphia.
(19) On August 15, 1996, respondent was sentenced to six months probation on each of the two counts of simple assault, to be served concurrently.
(20) Respondent advised the Supreme Court of Pennsylvania of his conviction on November 18,1996. The Supreme Court referred the notice of conviction to the Disciplinary Board by order dated January 3, 1997.
(21) Office of Disciplinary Counsel filed the petition for discipline at no. 3 D.B. 1997 on May 22, 2003.
(22) Respondent has not been prejudiced in any meaningful way by the delay in the filing of the petition for discipline.
(23) Respondent presented three character witnesses, each of whom have backgrounds of exceptional accomplishment. Each testified to respondent’s outstanding abilities as a lawyer and his impeccable reputation as an honest, law-abiding citizen.
Charge at No. 72 D.B. 2003
(24) Respondent is the defendant in the divorce action captioned Barbara Jean Crowther Chadwick v. H. Beatty Chadwick, filed in the Court of Common Pleas of Delaware County.
(25) By order dated April 29,1994, the court froze all assets in respondent’s name or held for respondent’s benefit in several financial institutions and prevented respondent from further assigning, concealing, secreting or dissipating marital assets.
(26) Respondent willfully failed to comply with the mandates of the April 29, 1994 court order in that, on May 6, 1994, he redeemed an annuity contract in the amount of $296,3 89 and deposited it in Banco Mercantil del Istmo in Panama, and, on May 13, 1994, he redeemed an annuity contract in the amount of $291,403 and deposited it in Banco Mercantil del Istmo in Panama.
(27) By order dated July 22, 1994, the court:
(a) ordered respondent to return $2.5 million which respondent had previously transferred out of the United States in February 1993;
(b) enjoined respondent from further assigning, concealing, secreting or dissipating marital assets;
(c) directed the marital home be listed for sale;
(d) directed respondent to pay $75,000 on account of his wife’s counsel fees and costs; and
(e) directed respondent to surrender his passport to the court.
(28) Thereafter respondent willfully failed to comply with any of the mandates of the July 22, 1994 court order, as listed above.
(29) By order dated August 29, 1994, the court found respondent in contempt for deliberate failure and refusal to comply with its orders of April 29, 1994 and July 22, 1994, and ordered and placed further restrictions on all of respondent’s financial holdings.
(30) By a second order dated August 29, 1994, the court again found respondent in contempt of the court’s previous orders of April 29,1994 and July 22,1994, and ordered and decreed the release of certain funds from North American Security Life Insurance Co., Nationwide Life Insurance Co., American Skandia, Grace Foods Inc., Union Bank of Switzerland, Banco Mercantil del Istmo, and Banco de Santander to Albert Momjian, Esquire, counsel for respondent’s wife.
(31) On October 21,1994, due to respondent’s failure to comply with previous court orders, the court entered two orders, as follows:
(a) an order appointing a third party to participate in the sale of marital property; and
(b) an order directing that all payments to Unitrust accounts otherwise payable to respondent be paid to Albert Momjian, Esquire, escrowee, to be held in an escrow account in the names of Albert Momjian and David Auerbach, as escrowees, pending further order of the court.
(32) By order datedNovember 2,1994, the court found respondent in contempt of court for willful violations of the court’s order of July 22, 1994, and directed that respondent be apprehended and incarcerated until further hearing.
(33) Respondent did not turn himself into arresting authorities.
(34) Respondent was arrested during a dental appointment, as set forth in the above findings.
(35) From April 1995 until the present, the court has called respondent into court and has offered respondent the opportunity to purge himself of the contempt.
(36) Respondent has failed to purge himself of the contempt.
(37) On April 22, 2001, the Honorable Kenneth A. Clouse, the judge currently presiding over the case, found that respondent remains in continuing contempt of court orders.
(38) Following his incarceration, respondent challenged the contempt order through direct appeal and his incarceration through habeas corpus proceedings.
(39) All appellate courts either quashed the appeal as interlocutory or affirmed the contempt and incarceration orders.
(40) The Supreme Court of Pennsylvania denied respondent’s petitions for habeas corpus and the United States Supreme Court denied certiorari.
(41) Respondent has denied that he is in contempt of court orders.
(42) Respondent admits that he transferred $2.5 million out of the country February 1993.
(43) Respondent has failed to cooperate with the Delaware County Court in presenting evidence as to the location and/or alleged disposition of the money, even after being given the opportunity to assist the court in tracing the funds.
(44) In September 2003, respondent attempted to assign funds in contravention of an October 21,1994 Delaware County court order directing that the funds be paid directly to Albert Momjian, Esquire and held in escrow until further order of the court.

III. CONCLUSIONS OF LAW

By his actions as set forth above in no. 3 D.B. 1997, respondent violated the following Rule of Disciplinary Enforcement:

(1) Simple assault is a “serious crime” as defined by Pa.R.D.E. 214(i). Respondent’s conviction for two counts of simple assault constitutes an independent basis for discipline under Pa.R.D.E. 203(b)(1).

By his actions as set forth above in no. 72 D.B. 2003, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
(2) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

IV. DISCUSSION

This matter is before the board on two petitions for discipline against respondent, H. Beatty Chadwick. The first petition charges respondent with professional misconduct arising from his conviction of two counts of simple assault. The second petition charges respondent with professional misconduct arising from his actions in connection with his divorce proceedings. These matters were considered separately at two different hearings before two different Hearing Committees. Upon a motion to consolidate made on November 17, 2004, these matters were consolidated for the purpose of adjudication before the board.

The facts of these matters are straightforward. Respondent was involved in acrimonious divorce proceedings with his wife in the early 1990s. A court order was entered prohibiting respondent from assigning, concealing, secreting, or dissipating marital assets. Respondent did not comply with this court order. He redeemed two annuity contracts and deposited money in a Panamanian bank. Respondent was court ordered to return and pay into the court $2.5 million which he had previously transferred out of the country in 1993. Respondent refused to do so. Respondent was held in civil contempt and, ultimately, the court issued a bench warrant for respondent’s arrest in November 1994. Respondent was arrested at a dental appointment in April 1995. He did not go peacefully with the two deputy sheriffs and instead provoked a physical altercation. Respondent was subsequently charged with, and convicted of, two counts of simple assault. He was transported to the Delaware County Prison on the day of his arrest and has remained there ever since. Respondent filed numerous habeas corpus petitions and appeals, all of which were unsuccessful. Despite opportunities by the court to purge himself, respondent has not done so. In fact, in September 2003, respondent attempted to assign funds, in violation of court order. While respondent admits that he removed approximately $2.5 million outside the country, he will not reveal the location of these assets and maintains he does not have control over the funds in question.

Petitioner has provided proof by a preponderance of the evidence that is clear and satisfactory that respondent engaged in professional misconduct in the case at no. 72 D.B. 2003. Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 749 A.2d 441 (2000).

Respondent transferred funds outside the country in an attempt to place the funds outside the reach of his ex-wife. Ten years and numerous appeals later, respondent continues to maintain that he does not have control over the funds. Notwithstanding judicial findings by the Delaware County Court of Common Pleas, the Superior Court of Pennsylvania, and the United States Court of Appeals for the Third Circuit affirming the Delaware County Court’s order, respondent chooses to stay in prison and asserts he has no control over the assets, although he has produced no evidence concerning these funds when given the opportunity to do so. Respondent’s conduct is deceitful, dishonest, and is prejudicial to the administration of justice.

In the case at no. 3 D.B. 1997, respondent’s criminal conviction for two counts of simple assault constitutes a per se basis for discipline. As a preliminary issue, respondent raised the doctrine of laches in regard to the delay in the filing of the petition for discipline. While the Supreme Court referred respondent’s conviction to the board in 1997, petitioner did not file the petition for discipline until 2003. The reason for this delay was due to the civil contempt matter that is the subject of no. 72 D.B. 2003. While that matter was ongoing, petitioner treated the criminal conviction matter as being consolidated with it, although no formal effort was initially made to consolidate. Petitioner petitioned to consolidate the two matters in 2003; however, the board denied the motion and petitioner filed the petition for discipline at no. 3 D.B. 1997.

The committee concluded from the record that respondent was not prejudiced by the delay. The board concurs with this conclusion. While respondent argues that he was prejudiced by the pendency of a proceeding which had the potential of impeding his ability to practice law, he presented no evidence that he was compelled to reject offers of legal employment. The inescapable fact is that respondent has been incarcerated since April 1995 due to the civil contempt and the proceeding at no. 3 D.B. 1997 did not cause a change in his position.

Respondent has engaged in professional misconduct. The board is charged with determining an appropriate sanction based on the seriousness of this misconduct. In doing so, the board must account for any aggravating and mitigating circumstances.

The Hearing Committee in no. 3 D.B. 1997 recommended a private reprimand. The Hearing Committee in no. 72 D.B. 2003 recommended a three-year suspension. Prior disciplinary cases involving contempt orders have resulted in suspension from the practice of law. In re Anonymous No. 31 D.B. 88,5 D.&C.4th 308 (1989) (four-year suspension for an attorney who failed to comply with a court order directing him to pay spousal support, failing to return marital property, and misrepresentation); In re Anonymous No. 111 D.B. 96, no. 370 Disciplinary docket no. 3 (Pa. October 17, 1997) (One year and one-day suspension for failing to comply with a court order to pay support and failing to appear at the contempt hearing); In re Anonymous No. 153 D.B. 97, no. 547 Disciplinary docket no. 3 (Pa. November 22, 1999) (three-year suspension for willful contempt of support orders and failure to pay court-imposed fine).

In addition to respondent’s contempt of court, he has been convicted of simple assault. The board can reasonably conclude, based on prior cases of simple assault by attorneys, that this misconduct, standing alone, would warrant private discipline. In re Anonymous No. 39 D.B. 85, 47 D.&C.3d 376 (1987). The serious nature of respondent’s combined misconduct persuades the board that a five-year suspension is warranted. Respondent has engaged in a nearly 10-year course of misconduct. He remains in open defiance of numerous valid and enforceable court orders. In his attempt to avoid the authority of the court system, he committed simple assault. He has shown no remorse for his actions nor has he demonstrated any comprehension of the wrongful nature of his conduct. There are no compelling mitigating factors to weigh in favor of respondent. The totality of the record demonstrates that respondent is unfit to practice law at this time.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, H. Beatty Chadwick, be suspended from the practice of law for a period of five years on the consolidated charges.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Members Saidis and Gephart dissented and would recommend disbarment.

Board Member Nordenberg did not participate in the November 17, 2004 adjudication.

ORDER

And now, April 27, 2005, upon consideration of the report and recommendations of the Disciplinary Board dated February 7, 2005, the petition for review and response thereto, the petition for review is denied, and it is hereby ordered that H. Beatty Chadwick be and he is suspended from the bar of this Commonwealth for a period of five years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: GEORGELIS, J.,

text:
    Nissley v. Candytown Motorcycle Club Inc.

      Jaime D. Jackson, for plaintiff.

      Steven J. Payne, for defendants.
    October 6, 2005
   GEORGELIS, J.,

Before me is the motion for summary judgment of the defendants, Candytown Motorcycle Club Inc. and Richard Bellaman. The plaintiff, Edward E. Nissley, has brought this negligence action for injuries suffered while riding his motorcycle on the dirt track at Candytown. The motion will be granted.

The relevant facts are as follows. Nissley became a member of Candytown in 1998 or 1999. On January 16, 2002, he renewed his membership by signing and dating the application for membership, which contained a release and indemnity agreement. He renewed his membership again on January 19,2003, when, during a meeting at the Candytown Motorcycle Club, he crossed out the old date on his application and filled in the new date.

On April 6, 2003, Nissley was riding his motorcycle on the track at Candytown. At the same time, Bellaman, Candytown’s vice president, and another individual were conducting maintenance on the track with a tractor. At approximately 4 p.m., Nissley rode his motorcycle onto one of the track’s jumps. Without being able to see the tractor on the other side of the jump, Nissley collided with the tractor and was injured.

In their motion, the defendants contend that the release was a valid and enforceable exculpatory agreement and that, when Nissley signed it, he gave up all his rights to sue or make a claim against Candytown and all other persons connected with the club for any injury he may suffer. They contend that Nissley is barred from bringing suit and that they are entitled to summary judgment as a matter of law.

In response to the motion, Nissley challenges the enforceability of the release and contends that: the release signed in January 2002 does not preclude him from recovering for his injuries suffered on April 6, 2003; it covered only his negligence and not that of the defendants; and it only included risks inherent to motorcycle riding and not risks that he could not reasonably have known or anticipated.

“Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Kuney v. Benjamin Franklin Clinic, 751 A.2d 662, 664 (Pa. Super. 2000). “The moving party has the burden of proving that no genuine issue of material fact exists.” Accu-Weather Inc. v. Prospect Communications Inc., 435 Pa. Super. 93, 99, 644 A.2d 1251, 1254 (1994). “In summary judgment cases, review of the record must be conducted in the light most favorable to the non-moving party, and all doubts regarding the existence of a genuine issue of material fact must be resolved against the moving party.” Young v. PennDOT, 560 Pa. 373, 376, 744 A.2d 1276, 1277 (2000).

In addressing the validity of a release, in Employers Liability Assurance Corporation Ltd. v. Greenville Business Men’s Association, 423 Pa. 288, 224 A.2d 620 (1966), our Supreme Court stated:

“Generally speaking, an exculpatory clause is valid if: (a) it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or the state ...; (b) the contract is between persons relating entirely to their own private affairs . . . ; and (c) each party is a free bargaining agent and the clause is not in effect a mere contract of adhesion, whereby [one party] simply adheres to a document which he is powerless to alter, having no alternative other than to reject the transaction entirely.” Id. at 291-92, 224 A.2d at 622-23. (citation omitted)

The parties have agreed that the release meets all of these requirements and is therefore valid. They disagree as to its enforceability.

Nissley first contends that the release was limited to 2002, the year in which it was signed. He asserts that the release was effective for a one-year term and that it was, therefore, ineffective against him in 2003. He contends that, if Candytown intended the release to apply after expiration of the 2002 membership, a separate release should have been required.

The defendants contend that the process by which Nissley renewed his membership also meant that he readopted the release. In order to renew a membership, a Candytown member must attend a meeting where he reviews the application, including the release, which he signed the previous year, update any changed information and re-date the application. They assert that, when Nissley completed this process, he intended to extend his membership and to re-adopt the release, making it effective the date he suffered his injuries.

Nissley’s argument that his membership renewal in 2003 did not include re-adopting the release is unpersuasive. Candytown’s application for membership is a one-page form, and the release is directly below the applicant’s personal information. Nissley completed, dated and signed the application and the release on January 16, 2002. Only one signature is required on the application, and providing the personal information and signing the application gave Nissley the right to ride his motorcycle on Candytown’s track.

The defendants’ process for membership renewals is specific. Members are to attend the annual meeting, review the application and the release, update any new information and re-date the top of the application. It is unreasonable to think that, when it comes time for members to renew their memberships, an effective release would no longer be required. By reviewing the document and re-dating the top of the application on January 19,2003, Nissley affirmatively renewed his membership and accepted the terms of the release. Accepting Nissley’s position that his changing of the date renewed his membership but did not renew the release would allow him to enjoy the benefits of membership without assuming the clearly intended, coincidental consequences of the release. I conclude that the release was in effect at the time he suffered his injuries on April 6,2003.

Nissley next contends that the language of the release is ambiguous because it does not specifically release the defendants from claims when they are at fault and because it does not use the words negligence, liability, fault or responsibility. He also contends that, at the time he signed the application containing the release, no one from Candytown explained the release to him and that he believed he was only waiving his right to make a claim against the defendants due to his own negligence.

The defendants contend that the exculpatory language was sufficiently clear to release them from any liability. They contend that exculpatory language need not reference the negligence of any party to be enforceable and that Nissley was giving up all his rights to make any claim for any injury. They also point out that Nissley testified during his deposition that he read the release before he signed it and that he understood the plain meaning of the release at the time of the deposition.

The defendants rely on Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978), and I believe that case is dispositive of this issue. The exculpatory clause in Zimmer also did not specifically mention negligence but instead used the phrase “I furthermore release Mitchell and Ness from any [and all] liability for damage and injuiy----” Id. at 478, 385 A.2d at 438. Our Superior Court found this language to be sufficient. “To say that negligent conduct is not included in ‘ any liability’ is patently incorrect.” Id. at 480, 385 A.2d at 440.

The release in this case states: “I hereby give up all my rights to sue or make claim against the Candytown Motorcycle Club Inc. ... for any injury to property or person I may suffer....” I believe that this exculpatory language is all encompassing and that causes of action for negligence are included within the rights given up by Nissley in the release.

Even if the defendant had not explained the release to Nissley, this does not relieve him from being bound by the contract he signed. The language of the release is unambiguous, and, if he believed the release relieved the defendants from liability only for his own negligence, he should have included this specifically in the release.

Nissley’s final argument against the enforceability of the release is that the language may reasonably be read to include only risks that he had anticipated or expected. The parties agree that the issue is whether Nissley knew that he could encounter a maintenance tractor on the racing track when he was riding around the track and whether he assumed that risk.

Nissley asserts that he did not know or anticipate that a maintenance tractor would be on the track and that assuming the risk of hitting it was not included within the scope of the release. In support of this argument, he relies on Crews v. Seven Springs Mountain Resort, 874 A.2d 100 (Pa. Super. 2005), in which our Superior Court had to “decide whether the Skier’s Responsibility Act and the exculpatory language on [Crews’] lift ticket bar a claim for injuries sustained when [he] was struck from behind by a high school student allegedly snowboarding while under the influence of alcohol.” Id. at 100-101. The court reversed the trial court’s grant of judgment on the pleadings for Seven Springs, because it concluded “that a collision with an underage drinker on a snowboard cannot be considered an inherent risk of downhill skiing.” Id. at 104. It defined an inherent risk of skiing as “one that cannot be removed without altering the fundamental nature of skiing.” Id. at 105.

Nissley asserts several reasons why he could not have known or anticipated the risk that caused his injuries. He argues that Candytown has scheduled work days for maintenance on the track and that the track is closed to riders on those designated days. The day of the incident was not a scheduled work day. He contends that, as he approached the jump, he was unable to see the tractor on the other side and that he did not see the tractor until he was airborne. He also contends that colliding with a maintenance tractor is not an inherent risk in motorcycle riding.

Defendants contend that Nissley was aware of the tractor’s presence on the track and cite his deposition testimony that he may have passed the tractor on the track 10 to 20 times before the accident. They also point to his testimony that it took him about one minute to complete a lap on the track, and they argue that he therefore saw the tractor numerous times and conceivably about a minute before the accident. They conclude that he knew that he could encounter the tractor on the track and that he, therefore, assumed the risk of colliding with it.

I agree with the defendants that Nissley’s deposition testimony establishes that he knew the tractor was on the track and that he should have known that its presence created a risk to his safety. He chose to continue to ride his motorcycle despite this knowledge.

As to whether colliding with the tractor was an inherent risk, I believe this case is distinguishable from the skiing accident in Crews. In Crews, the collision with the underage drinker was not an inherent risk, because that risk could be removed without changing the fundamental nature of the sport. However, I do not believe the same can be said about removing a maintenance tractor from a motorcycle track. Track maintenance is essential to the sport of motorcycle riding to ensure safe riding conditions, and removing maintenance tractors from motorcycle tracks would not have the same positive result as removing underage drinkers from ski slopes. I conclude that the facts in this case presented an inherent risk and that Nissley can reasonably be held to have known or anticipated it.

For all of these reasons, I conclude that the release was enforceable and that it bars Nissley’s recovery. Consequently, the defendants are entitled to summary judgment, and I enter the following:

ORDER

For the reasons stated in the foregoing opinion, the defendants’ motion for summary judgment is granted. Judgment is entered in favor of the defendants and against the plaintiff on all of the counts of the complaint.


author: SHEPPARD JR., J,

text:
    Fanelli v. Independence Blue Cross

      Gilbert Abramson, for plaintiff.

      Gerald Dugan, for defendant.
    October 11, 2005
   SHEPPARD JR., J,

This opinion is submitted relative to Independence Blue Cross’ (IBC) and Keystone Health Plan East’s (collectively defendants), appeal of this court’s May 12,2005 order, which required defendants to produce members of IBC’s Credentialing Committee for depositions.

This court submits that the order appealed from is interlocutory and that this appeal should be quashed.

However, should the appeal be deemed proper, this court respectfully submits that, for the reasons discussed, its order should be affirmed.

BACKGROUND

In December 2004, plaintiffs Andrew T. Fanelli D.O. and Regional Gastrointestinal Consultants P.C. (plaintiffs), filed suit seeking a determination that Dr. Fanelli should be admitted as a credentialed member of IBC’s participating physician network. This action centers primarily on whether the deliberations and decision of defendants’ Credentialing Committee complied with applicable law.

Previously, on Januaiy 15, 2004, the Credentialing Committee conducted a hearing to decide whether Dr. Fanelli should be permitted to continue as a member of the Keystone network. The hearing was held before six non-employee, credentialed providers within the IBC network who are actively engaged in patient care. Dr. Fanelli submitted written materials and appeared at the hearing to address the committee, as well as to answer their inquiries. The committee determined unanimously that Dr. Fanelli should not be reinstated to the Keystone network.

In September 2004, Dr. Fanelli submitted a new application. This application was rejected by the committee. Dr. Fanelli’s appeal of the committee’s decision was subsequently denied. The committee members that decided Dr. Fanelli’s new application, as well as his appeal, were the same physicians that had originally denied Dr. Fanelli’s reinstatement to the Keystone network in January 2004.

Plaintiffs noticed the depositions of the members of the Credentialing Committee that terminated Dr. Fanelli’s participation in the Keystone network. In response, defendants filed a motion for a protective order to preclude the depositions. This court denied defendants’ motion, and permitted the depositions. Defendants filed a motion for reconsideration which was denied. This appeal ensued.

DISCUSSION

I. The Order Appealed Is Interlocutory and the Appeal Should Be Quashed

As a general rule, an appeal will lie only from a final order, unless otherwise permitted by statute. Pugar v. Greco, 483 Pa. 68, 72, 394 A.2d 542, 544 (1978). An order is final for purposes of appeal “only if because of either its ‘technical effect’ or its ‘practical ramifications’ the litigant appealing the order is ‘out of court.’ ” Matthews v. Johns-Manville Corp., 307 Pa. Super. 300, 303, 453 A.2d 362, 363 (1982). See also, Pa.R.A.P. 341(b)(1). Put another way, an appealable order “is one which ends the litigation, or alternatively, disposes of the entire case.” Gottschall v. Jones & Laughlin Steel Corporation, 333 Pa. Super. 493, 498, 482 A.2d 979, 982 (1984).

Since the May 12, 2005 order does not put defendants out of court, does not end the litigation, or does not dispose of the entire case, it is not final. However, this court recognizes that, pursuant to Pa.R.A.P. 313(a), an appeal may be taken as of right from a collateral order.

A non-final order may be appealed as of right “if it is separable from and collateral to the main action, involves a right too important to be denied review and, if review is postponed, the right will be irreparably lost.” Gocial v. Independence Blue Cross, 827 A.2d 1216, 1220 (Pa. Super. 2003); Pa.RA.P. 313. The Pennsylvania Supreme Court has held that the collateral order doctrine conveys the right to appeal simply by filing a notice of appeal, provided that the party has satisfied this three-pronged prerequisite. Commonwealth v. Dennis, 580 Pa. 95,106, 859 A.2d 1270, 1277 (2004). The Supreme Court, announcing its commitment to “preventing the erosion of the principle behind the collateral order doctrine ... to prevent undue corrosion of the final order rule,” held: “[t]o that end, each prong of the collateral order doctrine must be clearly present before an order may be considered collateral.” Melvin v. Doe, 575 Pa. 264, 272, 836 A.2d 42, 46-47 (2003).

“An order is not separable and collateral from an action where it has the potential to decide at least one issue in a case.” Pace v. Thomas Jefferson University Hospital, 111 A.2d 539, 541 (Pa. Super. 1998) (emphasis added), citing Van der Laan v. Nazareth Hospital, 703 A.2d 540 (Pa. Super. 1997). This court submits that this appeal does not satisfy this first prong of the collateral order doctrine.

The complaint alleges that the committee’s denial of Dr. Fanelli’s reinstatement to the Keystone network was “unlawful, arbitrary and capricious” because the reasons stated for denial of credentials “were not provided for in the bylaws or credentialing policies of IBC.” Compl. a^29. Likewise, plaintiffs assert that the decision was made “with an improper mixing of prosecutorial and adjudicatory function[s] by Dr. Snyder” while participating in the deliberative process. Id. at ¶30. Plaintiffs allege that IBC’s denying Dr. Fanelli’s credentials was an action “taken in bad faith and was retaliatory in nature, due in part, to Dr. Fanelli’s having repeatedly challenged IBC’s arbitrary and capricious behavior toward him.” Id. at 32. Plaintiffs further allege that IBC cannot carry out its credentialing function “in a fair, impartial or unbiased manner nor can it follow the laws and statutes of the Commonwealth, nor does it have concerns for the rights of its patient/ insureds.” Id. at 50.

Thus, the process by which the committee made its determinations, an issue which will be explored at the depositions of the committee members, has the potential to resolve issues in this litigation. Accordingly, this court believes that the issue raised by defendants in the instant appeal is inseparable from this case and therefore, defendants’ appeal should be quashed.

II. Alternatively, If the Order Appealed Is Deemed Proper, It Should Be Affirmed

A. Plaintiffs’ Reliance on 40 Pa.C.S. §6324 Has No Bearing on Whether the Committee Members Should Be Deposed

Defendants argue that, since plaintiffs’ claims rest upon the application of the requirements of 40 Pa.C.S. §6324 (a statute which provides in part that IBC cannot deny participation in the Keystone network without the approval of the Department of Health), the depositions of the Credentialing Committee members would not be relevant because these physicians cannot testify to the corporate structure of the defendants. Thus, defendants assert that the committee members should not be deposed.

While it may be true that the committee members are not informed as to IBC’s corporate structure, plaintiffs assert that they are entitled to question these witnesses “about the grounds for their decisions; the nature of their deliberations; what evidence was considered; what instructions they might have been given and by whom; what criteria they themselves might have established; what information, if any, they received from outside the hearing itself; what their relationships were with Dr. Fanelli and with Dr. Fanelli’s competitors; what they knew about Dr. Fanelli beforehand; and how IBC officials behaved before and during the hearings.” Plaintiffs’ answer to defendants’ motion for protective order at pp. 7-8. This court agrees.

This line of questioning is relevant to the issue of whether the hearings were conducted fairly and in accord with the laws of this Commonwealth.

B. The Confidentiality Provision of the Peer Review Act Does Not Extend to IBC’s Credentialing Committee

Defendants assert that the Credentialing Committee’s deliberations are protected by the Peer Review Act. The confidentiality provision of the Peer Review Act provides in part:

“The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider....” 63 P.S. §425.4. (emphasis added)

Thus, in order for the Peer Review Act to make confidential the proceedings of the Credentialing Committee, defendants must be “professional health care providers.” Under the definitional provision of the statute, as well as the applicable case law, IBC is not a professional health care provider.

The Peer Review Act defines “professional health care provider” as follows:

“Individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not limited to, the following individuals or organizations:
“(i) a physician;
“(ii) a dentist;
“(iii) a podiatrist;
“(iv) a chiropractor;
“(v) an optometrist;
“(vi) a psychologist;
“(vii) a pharmacist;
“(viii) a registered or practical nurse;
“(ix) a physical therapist;
“(x) an administrator of a hospital, nursing or convalescent home or other health care facility; or
“(xi) a corporation or other organization operating a hospital, nursing or convalescent home or other health care facility.”

The Act’s list of examples demonstrates that it applies to those who provide health care directly, or administer or operate a health care facility. IBC’s own website characterizes IBC and its subsidiaries as “health insurers,” not providers of health care. See defendants’ response to plaintiffs’ motion for protective order, exhibit “A.”

Case law confirms that the confidentiality provision of the Act is inapplicable to IBC. In McClellan v. Health Maintenance Organization, 442 Pa. Super. 504, 660 A.2d 97 (1995), the Superior Court was charged with ascertaining whether HMO PA, an Independence Practice Association (IPA), is a “professional health care provider” as defined by the Peer Review Act. The Superior Court held that the confidentiality provision of the Peer Review Act does not apply to such an entity because the defendant did not “designate itself or hold itself out to be a ‘provider’ of professional health care services,” and because such entities “do not operate their own [health care] facilities, but merely act as insurers or quasi-insurers . . . .” McClellan, at 513, 660 A.2d at 101. (emphasis added)

The Supreme Court affirmed McClellan by an equally divided court. Justice Newman, writing in support of affirmance, stated:

“Clearly, the list of health care providers set forth in section 425.2 includes only (1) immediate or direct health care practitioners, and (2) administrators of medical facilities, be they individuals or organizations. HMO PA is apparently not a direct health care provider. It may enj oy the protection of the Act, then, only if it may be regarded as an administrator of a medical facility.” 546 Pa. 463, 473, 686 A.2d 801, 806 (1996).

While the court recognizes that the product of an equally divided court does not establish precedent, this court agrees with the analysis of Justice Newman. Accordingly, this court found that the Peer Review Act does not apply to IBC and its order should be affirmed.

C. The Peer Review Act Does Not Apply When a Physician Challenges the Process of the Review

In Hayes v. Mercy Health Corporation, 559 Pa. 21, 739 A.2d 114 (1999), the Pennsylvania Supreme Court was confronted squarely with the issue presented here, that is, whether the Peer Review Act is applicable where a physician challenges the process of his review.

In Hayes, the plaintiff physician challenged the recommendation of the defendant hospital’s medical board regarding the suspension of his clinical privileges. During the course of the litigation, Dr. Hayes requested a copy of the tape recording of the medical board’s meeting during which the board deliberated and decided upon its recommendation. Defendants contended that the Peer Review Act barred Dr. Hayes’ request.

In interpreting the Act, the court stressed the “words of limitation,” and pointed out that section 4 barred from discovery committee proceedings in only “civil action[s] . . . arising out of the matters which are the subject of evaluation and review by such committee.” The court explained that Dr. Hayes’ lawsuit did not fit within the scope of the limitation because Dr. Hayes was challenging the proceeding and not the issues that were the subject of the evaluation by the board. Hayes, 559 Pa. at 26-27, 739 A.2d at 117.

Finally, the court in Hayes concluded that the intent of the legislature “was to prevent the disclosure of peer review information to outside parties seeking to hold professional health care providers liable for negligence, while at the same time ensuring that such guarantee of confidentiality did not operate to shield from discovery those rare instances in which the peer review process was misused.” Id. at 29, 739 A.2d at 118. (emphasis added)

This court submits that the Hayes decision is instructive, here. Accordingly, the confidentiality provision of the Peer Review Act does not shield the committee members from depositions.

D. Defendants Have Failed To Sustain Their Burden of Proving That the Protective Order Is a Necessity

Defendants seek a protective order pursuant to Pennsylvania Rule of Civil Procedure 4012. This rule provides:

“(a) Upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense ....” (emphasis added)
“The granting of relief in a discovery proceeding is dependent upon aprima facie showing of necessity, since the relief is not to be granted as a matter of right.” In re Estate of Roart, 390 Pa. Super. 38, 47, 568 A.2d 182, 187 (1989). “The party moving for a protective order based on Pa.R.C.P. 4012 bears the burden of establishing the objectionable nature of the discovery he [or she] is withholding.” Griffiths v. Ulmer, 55 D.& C.4th 370, 373 (Lacka. Cty. 2002); Platinum Corp. v. Blong, 43 D.&C.4th 445, 446-47 (Fayette Cty. 1998), citing Cippollone v. Liggett Group Inc., 106 F.R.D. 573, 585 (1985). In order to establish the “good cause” required, the party moving for the protective order must produce, “at a minimum, some evidence upon which a court can make a determination that harm will result from disclosure.” Ornsteen v. Bass, 50 D.&C.3d 371, 374 (Phila. Cty. 1988). “The determination of whether good cause does or does not exist must be based upon appropriate testimony and other factual data, not the unsupported contentions and conclusions of counsel. Id., citing Davis v. Romney, 55 F.R.D. 337, 340 (1972). (emphasis added)

In support of their position that the protective order is appropriate, defendants’ assert:

“It is very difficult for hospitals and health plans to get practicing physicians who are willing to give up their personal time to participate on committees. If they are faced with the threat of deposition every time a decision is made that a practitioner does not like, then the potential chilling effect on physician participation is very real.” Memorandum in support of the defendants’ motion for a protective order, p. 8.

The unsupported contentions of counsel, that a “chilling effect” will result if this court does not grant defendants’ motion for a protective order, are not sufficient to support defendants’ burden of proof. Furthermore, litigants should expect that “[ajlmost any discovery request causes some annoyance, embarrassment, oppression, burden or expense . . . D.S. v. DePaul Institute, 32 D.&C.4th 328, 334 (Allegheny Cty. 1996).

This court believes that defendants have not sustained their burden of proof with regard to the possible deleterious effects of the denial of their protective order.

CONCLUSION

For the reasons discussed, this court respectfully submits that this appeal should be quashed. In the alternative, this court submits that its order of May 12, 2005 should be affirmed.

      . Because defendants must satisfy all three prongs of the collateral order rule, the remaining two prongs need not be addressed.

      . Plaintiffs contend that this approval was not sought.

      . Defendants argue that 40 Pa.C.S. §6324 does not apply because IBC is a hospital plan corporation and not a professional health services corporation.

      . An IPA model of an HMO is an HMO “that contracts for delivery of services with a partnership, corporation or association whose major objective is to enter into contractual agreements with health professionals for the delivery of such health services.” 28 Pa. Code §9.2.

      . Van Cure v. Hartford Fire Insurance Company, 435 Pa. 163, 169, 253 A.2d 663, 666 (1969).

        . Hayes, 559 Pa. at 26, 739 A.2d at 117.

      . The federal cases cited above are persuasive. This court agrees with Dominick v. Hanson, 753 A.2d 824, 827 (Pa. Super. 2000), that “this [federal] case law [is] persuasive considering the similarities between the federal and state discovery rules.”

      . This court suggests that the medical profession should be expected to police its profession. Indeed, they announce this in a number of contexts. At times, this may require doctors to step to the plate. One could conclude that it would be desirable for the entire profession to know what rationale will preclude doctors from participating in health care networks.


author: BLACK, J,

text:
    Treible v. Lehigh Valley Hospital Inc.

      Peter M. Villari and Theresa Giannone, for plaintiffs.

      Richard Stevens and Howards. Stevens, for defendant Lehigh Valley Hospital entities.
    August 12, 2005
   BLACK, J,

In this medical malpractice case the defendant Lehigh Valley Hospital Inc. (LVH) and related parties have objected to the plaintiffs’ request for the production of documents on the ground that the documents are protected from disclosure under the Peer Review Protection Act, 63 P.S. §§425.1-425.4, and the Medical Care Availability and Reduction of Error Act, 40 P.S. §§1303.101-1303.910. Before the court is the plaintiffs’ motion to strike the objections and to compel LVH to respond to the document request.

Following argument, the parties resolved all the objections but one. The matter still in dispute is the second page of each of four separate two-page reports prepared by hospital staff following the incident that gave rise to this lawsuit. LVH has produced the first page of each of these reports. This page is identified as “Risk Management/Quality Assurance Hospital Event Report” and contains basic information about the event. The second page, which LVH resists producing, is entitled “Quality Assurance Review Form” (QAR form) and states at the top “Peer Review... This information is protected from discovery by PA state law.” This second page contains a section describing the event; a second section labeled “Follow-up”; and a third section labeled “Action/conclusion.”

We held a hearing to receive evidence explaining the purpose of the QAR forms and the use or uses to which they were put. At this hearing LVH offered into evidence a blank copy of the two-page report form. LVH also produced the testimony of Georgine Saliba, its administrator for risk management and patient safety. The plaintiffs offered into evidence a copy ofLVH’s bylaws along with the depositions of several hospital nurses involved in the care at issue.

According to Ms. Saliba’s testimony, the QAR forms, which are the second page of each of the two-page reports, do not become part of the patient’s chart. Instead they go directly to the medical director of the particular specialty involved for his or her review. In this case the QAR forms would have gone to the director of maternal fetal medicine. As for the contents of the forms, Ms. Saliba testified that the first section contains a factual description of the event itself prepared by the nurse or physician who observed it. The section labeled “Followup,” usually completed by a director or supervisor, contains a description of follow-up steps taken. The third section, “Action/conclusion,” is completed by the departmental director and indicates what actions were taken or conclusions reached as a result of the event and followup.

The hospital has a Clinical Case Review Committee made up of the various departmental chairs and members of its board of directors. This committee reviews “sentinel events (those unique events which are so disastrous as to require review after the first occurrence) and other significant occurrences logged as quality assessment cases and investigated by the various Medical Staff Departments in the Hospital.”

Ms. Saliba was unable to state whether Rhonda Treible’s case had been reviewed by this committee. She testified that the Treible case was not a “sentinel case.” She did not know whether it had been logged as a quality assessment case.

Ms. Saliba testified that LVH has other review committees engaged in quality assurance review in addition to the Clinical Case Review Committee. However, she did not know whether any other quality assurance committee ever utilized the QAR forms at issue in this case as part of a review. All she could testify to was that the QAR forms went to the director of the maternal fetal medicine department for that person’s review. She did not state that the forms were reviewed by any committee.

The Peer Review Protection Act provides a limited privilege for the work of peer review committees in the medical field. The Act is to be strictly construed. Young v. Western Pennsylvania Hospital, 722 A.2d 153, 156 (Pa. Super. 1998). It protects statements and documents provided exclusively to peer review committees. The purpose of the Act is to “encourage doctors, nurses and other medical care providers to frankly and confidentially inform hospital committees concerning the performance of medical professionals and hospital personnel in connection with their health care duties.” Hanzsek v. McDonough, 44 D.&C.3d 639, 642 (Lehigh Cty. 1987) (Gardner, J.).

To further this purpose, the Act protects certain records from discovery. It does not, however, protect from discovery information, documents or records otherwise available from original sources merely because this information was presented during proceedings of a review committee.

A party claiming a privilege not to disclose information has the burden of proving those facts necessary to sustain the claim of privilege. Joe v. Prison Health Services Inc., 782 A.2d 24, 32 (Pa. Commw. 2001). Under the Peer Review Protection Act it is the “proceedings and records of a review committee” that are not subject to discovery. Atkins v. Pottstown Memorial Medical Center, 430 Pa. Super. 279, 283, 634 A.2d 258, 260 (1993) (holding that peer review privilege did not apply to a document that “was not derived from, nor part of an evaluation or review by a peer review committee.”). Therefore, to sustain its claim of peer review privilege, LVH had the burden of demonstrating that the documents at issue were in fact utilized by a peer review committee. Unless the QAR forms were part of the proceedings or records of a review committee, the Act by its terms does not apply.

In this case LVH has failed to meet this burden. Certainly, the mere fact that the forms are labeled “Peer Review . . . This information is protected from discovery by PA state law” does not insulate them from discovery. Nor does the fact that the documents were forwarded to, or reviewed by, the departmental chair of the department involved in the patient’s care.

Whether or not the documents might be used at some point in the future by a review committee is irrelevant. Only “the proceedings and records of a review committee” are immune from discovery. In the absence of any evidence that the documents at issue were ever utilized by a review committee, the claim of peer review privilege must fail.

The same reasoning applies to the hospital’s claim that the documents at issue are immune from discovery under the MCARE Act. The MCARE Act protects from discovery “documents, materials or information... which arise out of matters reviewed by the patient safety committee pursuant to section 310(b) or the governing board of amedical facility....” 40 RS. §1303.311(a). (emphasis added) In this case there is no evidence that the QAR forms were reviewed by a patient safety committee or by the hospital’s governing board. Therefore, the MCARE Act does not immunize the documents at issue from discovery.

Finally, we note that Nurse Renee E. Gombert of LVH, who had been involved in Ms. Treible’s care, admitted in her deposition in this case that she had reviewed the documents at issue prior to the taking of her deposition. Under Pennsylvania Rule of Evidence 612, when a witness uses a writing to refresh his or her recollection before testifying, “if the court in its discretion determines it is necessary in the interest of justice, an adverse party is entitled to have the writing ... produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness on it, and to introduce into evidence those portions which relate to the testimony of the witness.”

As our colleague the Honorable Judge Lawrence Brenner observed recently in Forrest v. St. Luke’s Hospital, no. 2004-C-2343 (Lehigh Cty. June 13, 2005), “it would be patently unfair to allow the defendant to use the information that it seeks to shield from discovery as support for its position. . . .” We believe that allowing hospital witnesses to make use of QAR forms in preparation for their discovery depositions, while at the same time claiming that these documents are shielded from discovery, is also patently unfair. Therefore, in the interests of justice, even if the QAR forms were otherwise to qualify for the peer review or MCARE privilege, we believe that any such privilege has been waived by Nurse Gombert’s use of these documents to prepare for her deposition. See also, Tirado v. Lehigh Valley Hospital, 49 D.&C.4th 110 (Lehigh Cty. 2000) (Ford, J.) (holding that report no longer protected by peer review privilege where physician defendant had consulted it in preparation for her deposition).

For the reasons stated, the objections of LVH to the plaintiffs’ request for production of the QAR forms are overruled, and LVH must produce these documents for inspection by the plaintiffs.

ORDER

Now, August 12,2005, upon consideration of the plaintiffs’ motion to strike defendants Lehigh Valley Hospital Inc., Lehigh Valley Hospital and Lehigh Valley Hospital and Health Network’s objections and to compel said defendants to provide full, complete and verified responses to plaintiffs’ request for production of documents, after review of the parties’ briefs and oral argument, for the reasons set forth in the accompanying opinion, it is ordered that said motion be and the same hereby is granted. Defendants Lehigh Valley Hospital Inc., Lehigh Valley Hospital and Lehigh Valley Hospital and Health Network shall produce for inspection by the plaintiffs, within 20 days from the date of this order, a full copy of the four Quality Assurance Review forms prepared by defendants’ personnel in connection with the occurrence referred to in the plaintiffs’ complaint.

      . Defendants’ exhibit 1.

      . Plaintiffs’ exhibit 1.

      . Plaintiffs’ exhibits 2, 3 and 4.

      . Notes of Testimony of Hearing 6/24/05, 20.

      .N.T. 12-13.

      .N.T. 13.

      . Plaintiffs’ exhibit 1 (LVH bylaws), p. 34.

      . N.T. 14, 19-20.

      . 63 P.S. §425.4.

      . Plaintiff’s exhibit 2, deposition of Renee E. Gombert, pp. 16, 19.