author: WILLIAMSON, J.,

text:
    White v. Cornish

      C.P. of Monroe County,
    No. 8231 CIVIL 2012

      Thomas J. Foley, Jr., for plaintiffs.

      Steven D. Costello, Matthew P. Keris and Kyle N. Thompson, for defendants.
    May 13, 2014
   WILLIAMSON, J.,

This matter comes before the court on the summary judgment motion of defendant Darell T. Covington, M.D. (“defendant”). The matter involves alleged medical malpractice claims of the plaintiffs against the defendants Dr. Covington and Richard M. Cornish, M.D., that caused the death of Richard C. White (“decedent”). Defendant Covington contends plaintiffs cannot prove he owed a duty of care to the decedent as of October 3,2010 as there was no doctor-patient relationship. The defendant also contends that plaintiffs are unable to produce expert testimony sufficient to prove a prima facie case of medical negligence. As such, defendant Covington moves for judgment in his favor and dismissal from this suit.

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa. Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled facts contained in the non-moving party’s pleadings. Mattia v. Employment Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the non-moving party has adequate knowledge and that the means of information are within the control of the non-moving party. Elia v. Olszewski, 84 A.2d 1889(Pa. 1951).

In order to prove medical negligence, a plaintiff must be able to establish the following:

1) The defendant owed a duty to the plaintiff;
2) The defendant breached that duty;
3) The defendant’s breach of duty was a proximate cause of, or a substantial factor in, bringing about plaintiff’s harm; and
4) The plaintiff suffered damages due to the harm.

Winschel v. Jain, 925 A.2d 782, 788 (Pa. Super. 2007).

At issue in this case is whether or not the decedent had a doctor/patient relationship with the defendant, such that the defendant owed a duty to the decedent. The uncontradicted facts set forth in the motion for summary judgment and from the depositions are as follows:

Dr. Covington is a colo-rectal surgeon. Dr. Cornish is an emergency department physician. Dr. Covington began treating the decedent in 2003 for rectal carcinoma. Dr. Covington performed surgery on the decedent in 2003, at which time cancerous tissue was removed and a permanent colostomy was necessary. Dr. Covington continued to treat the decedent until July 22, 2009 when Dr. Covington terminated the doctor-patient relationship due to decedent’s failure to pay his outstanding medical bill. The amount of the bill was $44.00. Dr. Covington sent notice of this termination of the doctor-patient relationship by letter dated July 22,2009, advising the decedent that if the bill remained unpaid for thirty (30) more days, he could no longer provide services to the decedent as his doctor. The letter also advised Dr. Covington would reconsider seeing the decedent as a patient if the bill was paid in full. The decedent never paid the outstanding bill.

On September 22, 2010, the decedent presented to the Pocono Medical Center (PMC) Emergency Room (ER) with complaints of abdominal pain. A CT scan of the abdomen was ordered. The diagnosis at that time was abdominal pain, enteritis and strained abdominal wall. The decedent was given an antibiotic and discharged.

Following the September 22, 2010 ER visit, the decedent obtained a surgical consultation with Dr. Nicolas Teleo concerning the abdominal pain. On October 3,2010, the decedent again presented to the PMC emergency room with abdominal pain. Defendant, Dr. Cornish, who was an emergency room physician on duty at that time, ordered another CT scan. The radiologist at PMC who read the CT scan recommended Dr. Cornish obtain a surgical consultation. Rather than obtain a surgical consultation with Dr. Teleo, or with an on-call surgeon at PMC, Dr. Cornish called Dr. Covington at the request of the decedent.

Dr. Cornish made contact with Dr. Covington by telephone. This is not in dispute. The contents of that telephone conversation between Dr. Cornish and Dr. Covington are in dispute. It is undisputed that Dr. Covington was not asked to physically evaluate the decedent, that he did not personally review the CT scan or lab results himself, and that he did not speak directly to the decedent. Dr. Covington later signed a copy of the ER chart, but did not review it during the call from Dr. Cornish, Dr. Covington was neither on-call for PMC, nor formally requested to see the decedent on October 3,2010. Dr. Cornish made the decision to discharge the decedent from the ER.

We find that based on the facts established in discovery, that there is no material issue with regard to Dr. Covington not owing a duty to the decedent. For that reason, the plaintiffs are unable to establish the first element in proving medical negligence; namely, that the defendant owed a duty to the plaintiff/decedent. The plaintiffs have not shown that there was a doctor-patient relationship between the decedent and Dr. Covington on October 3, 2010. Dr. Covington terminated his doctor-patient relationship with the decedent on July 22, 2009, by notice sent to the decedent. The decedent never reestablished a doctor-patient relationship. It is immaterial that the relationship ended due to non-payment of a bill for $44.00. The undisputed fact was that the relationship was terminated by Dr. Covington. He cannot be forced to maintain a doctor-patient relationship under the circumstances of this case.

The decedent also established a new doctor-patient relationship with a surgeon (Dr. Teleo) concerning his abdominal condition, within the week prior to the October 3,2010 admission to the PMC emergency room. Although the decedent requested Dr. Cornish call Dr. Covington, rather than the surgeon he recently had seen, or another surgeon or specialist present and on-call at PMC, we do not find this re-establishes a doctor-patient relationship. The contents of what took place during that call are disputed as between Dr. Cornish and Dr. Covington. However, we cannot say that a 3 minute and 14 second telephone call, without a physical consultation of the decedent, or review of the records, lab results and CT scans, or an affirmative acknowledgement of a doctor-patient relationship while providing treatment directly to the decedent can establish a doctor-patient relationship. Therefore, no duty was owed by Dr. Covington to the decedent.

We further note that even accepting as true the contents of the telephone conversation and what was said therein to Dr. Cornish by Dr. Covington, as related by Dr. Cornish, that information was given to Dr. Cornish, not the decedent, and Dr. Cornish elected to discharge the decedent. Dr. Covington could not have expected that he was re-establishing a doctor-patient relationship with the decedent by having the courtesy to take a telephone call from Dr. Cornish, who was the ER and treating doctor at the time. Under these facts, we find no duty of Dr. Covington to the decedent as there was no proof of a doctor-patient relationship on October 3,2010. Therefore, defendant Dr. Covington’s motion for summary judgment will be granted.

Defendant, Dr. Covington, also raises grounds for summary judgment due to plaintiffs’ failure to produce expert reports sufficient to show he breached the standard of care or was a direct or factual cause of plaintiff’s harm. We have already granted defendant’s motion for summary judgment on other grounds, which would make this argument moot. However, we will address the argument since it has been raised by the defendant.

Defendant Dr. Covington alleges the expert reports provided by the plaintiffs in discovery, to which those experts are expected to testify to at trial, are in conflict with one another. The defendant contends the conflict is to such an extent, that the opinions are inconsistent and unable to be presented to a jury. The defendant cites to Mudano v. Philadelphia Rapid Transit Co., 289 Pa. 51, 137 A.2d 104 (1927), wherein the Pennsylvania Supreme Court, held that a plaintiff’s medical expert’s testimony must be reasonably consistent so as not to confuse a jury. The court went on to state that where the “testimony was so conflicting regarding the proper inference to be drawn as to render either one of two inconsistent inferences possible of adoption, the adoption of the one or the other would be more than a guess, and under such circumstances, plaintiff fails to sustain the burden of proof which the law casts upon him.” Id. at 137 A. 106.

This ruling was later applied in Brodowski v. Ryave, 885 A.2d 1045 (Pa. Super. 2005), where one expert stated a consulting cardiologist should have admitted the patient or obtained a neurology consult. Another expert for the plaintiff stated that having the plaintiff seen by a neurologist was “a good idea,” but it was the admitting physician’s duty to obtain the neurology consultation and not the consulting cardiologist. Id. The Superior Court held the jury would have had the impossible task of determining the standard of care to apply from plaintiffs’ experts, and left only to guess at it. Id.

Here, plaintiffs’ expert, Dr. Silverman, finds a formal consult occurred when Dr. Cornish called Dr. Covington. Dr. Silverman went on to opine that Dr. Covington’s refusal to see the decedent in the ER on October 3, 2010 was a deviation from the standard of care. The plaintiffs’ other expert, Dr. Weihl, found fault with Dr. Cornish. He relied on Dr. Cornish’s version of the October 3, 2010 telephone call with Dr. Covington from a note Dr. Cornish recorded October 5, after the decedent’s discharge, that he consulted Dr. Covington by telephone and it led to the opinion of Dr. Covington that no “surgical admission” was necessary. Dr. Weihl then stated that Dr. Cornish relied only upon a telephone consultation with a surgeon before deciding to discharge decedent, and this was a breach of a standard of care.

Plaintiffs’ other expert, Dr. Mehlman, asserts that regardless of what was stated in the disputed telephone conversation between Dr. Cornish and Dr. Covington, the right things did not happen and Dr. Cornish did not meet the standard of care on October 3, 2010. Dr. Mehlman further states: “[Ejmergency medicine doctors do not send seriously ill patients requesting help home whatever anyone else tell (sic) them. That is the standard of care.” As Dr. Mehlman noted, Dr. Cornish acknowledged in his deposition that “it was my judgment that he didn’t require admission.” Furthermore, Dr. Mehlman stated “[rjegardless of what Dr. Covington might have thought, might have said in the roughly 3 minute and 14 second conversation, ultimately, Dr. Cornish should have never have discharged patient RW (decedent) from what he knew, and should have understood...”

Dr. Mehlman does go on to state that Dr. Cornish and Dr. Covington had a duty to admit the patient and that Dr. Covington failed to meet a standard of care by not coming to examine the decedent, and interpreting tests. However, these findings are premised by Dr. Mehlman on if Dr. Covington was the appropriate surgeon to have been consulted and what took place in that consultation. Clearly, if not, then Dr. Mehlman does not have this opinion regarding Dr. Covington. As no doctor-patient relationship existed, Dr. Covington could not be the appropriate surgeon Dr. Mehlman refers to in his report. The appropriate surgeon would have to have a doctor-patient relationship, which Dr. Covington did not have.

Even after this analysis, Dr. Mehlman goes on to state that Dr. Cornish’s discharge assured the decedent’s death. He asserts that regardless of what Dr. Covington said or did not say, the standard of care required Dr. Cornish to admit decedent for multiple consultations. This in itself could be confusing to a jury.

We find these reports are not reasonably consistent. As a result, a jury would be confused as to who had a standard of care to admit the decedent. Plaintiffs argue two separate standards of care, and a possible medical and surgical admission. However, the reports conflict with one another to the extent that a jury would be confused as to whether or not plaintiffs’ experts find Dr. Covington had a duty of care, whether or not he breached a standard of care, and whether or not such breach was a direct cause of the injury. As such, the reports cannot be used to be critical of Dr. Covington. Therefore, there is no material fact at issue and the motion for summary judgment can be granted on those grounds as well.

We recognize that the issues raised herein, specifically what constitutes termination and/or re-establishment of a doctor-patient relationship, appear to be matters that involve a controlling question of law to which there is substantial grounds for difference of opinion. We further note that our research indicates no appellate case directly on point in the Commonwealth of Pennsylvania that adequately addresses these issues. An immediate appeal, •specifically requested by the plaintiffs in their motion to vacate and for reconsideration, may materially advance the ultimate termination of this matter. The facts of this case are so intertwined as between the defendants Dr. Cornish and Dr. Covington, that both would likely testify at trial, regardless of whether or not one party was released from the case. Furthermore, if Dr. Covington were to ultimately remain a party to this litigation, it would be more beneficial to all parties to try the case together with both defendants. Therefore, we will grant certification for an interlocutory appeal that will be at the discretion of the Superior Court.

ORDER

And now, this 21st day of May, 2014, the motion for summary judgment of Darell T. Covington, M.D. is granted. Defendant, Darell T. Covington, M.D., is dismissed as a party to this action and the prothonotary is hereby directed to enter judgment in favor of defendant Covington and against the plaintiffs.

Furthermore, this court is of the opinion that the court’s order and opinion of this date involves a controlling question of law as to which there are substantial grounds for difference of opinion and that an immediate appeal from this order may materially advance the ultimate termination of the matter. This court order is so certified pursuant to 42 Pa. C.S.A. §702 (b) and it is further ordered that all further proceedings are stayed pending a decision by the Superior Court.


source: Caselaw Access Project

license: Public Domain

text:
    Clements-Weekes v. Enamorado

      C.P. of Monroe County,
    No. 1377 CIVIL 2013

      James J. Conaboy, for plaitniffs.

      Brian P. Corcoran, for defendant.
    June 3, 2014
   WILLIAMSON, J.,

This matter comes before the court on defendant’s motion to compel discovery. A review of the parties’ briefs and oral argument of counsel reveals the following:

Defendant sent interrogatories and request for documents to plaintiffs which plaintiffs answered, but they did not supply certain information or documents requested. The plaintiffs contend they objected to discovery requests eonceming plaintiffs’ marriage counseling records, information in possible protection from abuse (PFA) proceedings and a domestic incident as between the plaintiffs. The plaintiffs believe the PFA and domestic incident information can be obtained by the defendant from public records or by subpoena and that plaintiffs need not obtain and provide such documents. The plaintiffs argue the marriage counseling records are not necessary or relevant to this automobile accident case and are sought to embarrass or harass the plaintiffs. Defendant states the records are relevant to the loss of consortium claim.

Defendant also seeks an order requiring the plaintiffs to execute an authorization for release of Veteran’s Affairs (V.A.) medical records. Plaintiffs contend the information of the V.A. is not relevant and that the defendant can obtain it through a request for subpoena. Defendant argues the records are relevant as to plaintiffs’ claims for damages due to prior injury, and that the V.A. will not honor a subpoena for medical records. We note depositions of the parties have already taken place as represented to this court by counsel. Defendant seeks an order compelling answers to discovery and production of documents, as well as an authorization for release of records from the V.A.

Generally, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. Pa. R.C.P. 4003.1. Limitations to this rule include information that is sought in bad faith; would cause unreasonable annoyance, embarrassment, oppression, burden or expense; is beyond the scope of discovery set forth in Rules 4003.1 — 4003.6; is prohibited by law; or, would cause the party so requested to make an unreasonable investigation into the matter. Pa. R.C.P. 4011.

With regard to the authorization for release of records from Veteran’s Affairs, normally a request for subpoena would suffice. Defendant represents the V.A. will not honor a subpoena. We will take defendant’s word to this effect as there is no argument or evidence to the contrary. The requested information is relevant as it could show a prior injury history or pre-existing injury. The fact such information may not be admissible at trial, or necessarily apply to this case, is immaterial. It would be relevant as to damages and therefore, it will be allowed. As there does not appear to be a means to obtain the records by subpoena, we will grant the request to compel the plaintiffs to sign a release for the documents.

Defendant represented at oral argument that they have received, or can receive the PFA and domestic incident records by subpoena. That leaves the issue of the marriage counseling records of the plaintiffs. Defendant contends these records are relevant and discoverable because plaintiff Dalmaar Weekes has sought a loss of consortium claim. Defendant believes the marriage counseling records will support, or may lead to relevant information, regarding the relationship of the plaintiffs at time of and following the accident which could impact damages sought from a loss of consortium claim. Plaintiffs contend release of this information would be an unreasonable annoyance and embarrassment to them, and are irrelevant to the issues in this case. Plaintiffs also argue that the defendant has not followed proper procedures of filing a motion to strike the objection raised by plaintiffs; rather, they filed a motion to compel. We find this last argument of plaintiffs to have no bearing on the instant motion. Whether or not defendants file a motion to strike objection or a motion to compel answers to discovery, the action and relief sought is the same: namely, an order directing discovery be answered. Therefore, we will review the request made by the defendant in the instant motion to compel.

We note information regarding the parties’ marital status at and after the accident is relevant to a loss of consortium claim. We note the plaintiff, Dalmaar Weekes seeks a loss of consortium claim. However, pursuant to Rule 4011, we find the defendant’s request for plaintiffs’ marriage counseling records, if any, to be an unreasonable annoyance and embarrassment. Those records could detail intimate and private details of the parties that is necessary to attempt to reconcile a private relationship and marriage. Release of those details, disclosed during what was likely a healing and therapeutic, but private setting, could reveal matters that would be wholly embarrassing to one or both plaintiffs. It could also be potentially harmful to the counseling they may have done. Furthermore, the records may have information that contain nothing that is relevant to these proceedings (i.e. working on marital issues as it relates to raising their children; dealing with a difficult life occurrence, etc.). In short, we believe disclosure of marriage counseling records in an .automobile accident case can be embarrassing and annoying to a party.

We also note the defendant has had a chance to depose the plaintiffs, and to ask questions regarding the plaintiffs’ relationship, including whether or not they have engaged in marriage counseling and other questions dealing with the loss of consortium claim. The defendant will likely inquire at time of trial if the parties engaged in marriage counseling to confront credibility concerning the loss of consortium claim. It is not necessary to have the records disclosing the actual contents of the counseling to discredit the plaintiffs, if that is what the defendant chooses at time of trial. Therefore, we find the information requested is not discoverable under Rule 4011. That portion of defendant’s motion will be denied.

ORDER

And now, this 3rd day of June, 2014, defendant’s motion to compel discovery is granted in part and denied in part. It is ordered and decreed as follows:

1. Plaintiffs shall sign an authorization to release medical records of the Veteran’s Administration to defendant’s counsel within thirty (30) days of the date of this order;

2. Defendant’s request to compel the plaintiffs to answer discovery, regarding any marriage counseling, and to provide all records of any marriage counseling is denied.

3. All other issues raised by defendant’s motion are denied as moot.


author: GLAZER, J.,

text:
    Freedom Medical Supply, Inc. v. American Independent Insurance Co.

      Robert D. Greenbaum, Andrea L. Wilson and Robert S. Kitchenoff, for plaintiff.

      Eric R. Brown and R. Bruce Morrison, for defendant.
    June 6, 2014
   GLAZER, J.,

Over the last 15 years, this trial court has hosted a series of class actions brought by medical providers against various insurance companies that neglected to pay statutorily mandated interest on late reimbursement payments under the Motor Vehicle Financial Responsibility Law (“MVFRL”). The MVFRL applies to medical services provided to people injured in auto accidents. It requires that an insurer pay claims within 30 days after it is billed properly by a medical provider or that it pay interest on the amount it does not pay timely.

One of the earlier of this court’s medical provider class actions was filed in 2002, under the MVFRL, by Richard S. Glick, D.O. against Progressive Northern Insurance Company (“Progressive”). This court certified the class of medical providers in Glide and made rulings as to progressive’s liability for payment of interest.

While Glick was being litigated before this court, additional, similar, class actions were filed by plaintiff Freedom Medical Supply, Inc. (“Freedom”) under the MVFRL, including the instant case against American Independent Insurance Company (“AIICo”). This court made rulings in the AIICo case consistent with its earlier rulings in Glick.

In 2007, while many of the medical provider class actions were still pending before this court, the Pennsylvania Supreme Court heard an appeal in a case involving a medical provider who had sued an insurance company on behalf of a class of other similarly situated medical providers. In that case, the Supreme Court held “that [the MVFRL] provides a private cause of action to providers for interest accrued on untimely payment of benefits.

In addition to Glick and the many Freedom cases, another medical provider class action was filed with this court under the MVFRL. It was brought against SEPTA, which is a self-insured Commonwealth agency. In that case, this court certified the class of medical providers and granted partial summary judgment to them on the issue of SEPTA’s liability to pay them interest under the MVFRL. In 2010, the Commonwealth Court, in a published opinion, affirmed that decision and held: “Upon review, we conclude that the trial court did not err in finding SEPTA liable for interest for ‘overdue’ medical bills consistent with Section 1716 of the MVFRL.”

Consistent with the Supreme Court’s decision in Schappel and the Commonwealth Court’s decision in SEPTA, both of which indicated that those higher courts did not find these medical provider class actions improper, this court continued to rule in favor of the medical provider classes in the actions pending before it, specifically on the issues of whether the class should be certified and whether the insurers were liable to the class for interest on late payments.

Subsequently, this court’s certification and summary judgment rulings in Glick were appealed to the Superior Court, which in January, 2014, reversed those decisions in an unpublished opinion. The Superior Court found that the class of medical providers should not have been certified because “what will constitute ‘reasonable proof [of the amount of benefits due under the MVFRL] is a question of fact answered on a case by case basis after review of relevant evidence addressing several factors, including coverage, causation, and medical necessity’.... This factual inquiry requires individualized determinations not readily suitable for class action.”

Neither the Commonwealth Court nor the Supreme Court in their earlier opinions was asked to look at the precise issue that was before the Superior Court in Glick — whether a medical provider’s submission of standard HCFA-1500 or UB-92 forms is sufficient evidence of the amount of benefits due to the provider under the MVFRL that it triggers the thirty day period in which the insurer must pay the claim or pay interest if the claim is paid late. Although the Superior Court’s opinion is unpublished and generally non-precedential, it has certainly cast a pall over the remaining medical provider class actions pending before this court, particularly the present one. This court does not think that it is appropriate to disregard the Glick opinion and its reasoning in deciding this case.

The alleged facts of Freedom v. AIICo are virtually identical to those in the Glick case. Plaintiff Freedom is a medical equipment provider which on numerous occasions submitted form HCFA-1500 to AIICo detailing medical services provided to someone covered under an AIICo auto insurance policy. AIICo reimbursed Freedom for such services more than 30 days later, but AIICo neglected to pay any interest on such late payments. In some instances, AIICo failed to reimburse Freedom at all.

In 2012, this court ruled on the parties’ cross-motions for summary judgment with respect to the importance of the HCFA-1500 form as follows:

1. [The MVFRL] requires that an insurer pay a medical bill within thirty days of the insurer’s receipt of reasonable proof of the amount of the benefits;
2. A completed HCFA- 1500 form provides reasonable proof of the amount of the benefits, triggering the insurer’s payment obligations under [the MVFRL]; and
3. All payments made more than thirty days after receipt by the insurer of a completed HCFA -1500 form accrue interest at the rate of 12% per annum beginning thirty days after such receipt.

This court’s ruling was consistent with its prior ruling in Glick, that the HCFA-1500 Form constituted “reasonable proof of the amount of the benefits” due to the provider. In support of its holding in this case, this court opined as follows:

The HCFA-1500 form is a standardized Medicare form approved and preferred for use under [the MVFRL] by the governing regulatory agency, the Department of Insurance. The HCFA-1500 provides the information necessary for an insurer,'such as AIICo, to determine, within the thirty days allotted to it under [the MVFRL], the amount of benefits due and whether the insurer wishes to challenge the claim.
* * *
[U]pon receipt of a completed HCFA-1500 form, an insurer, such as AIICo, has the following options:
a) Pay the claim within thirty days of receipt and pay no interest;
b) Deny the claim within thirty days of receipt;
c) Challenge the claim by way of a [Peer Review Organization] review within thirty days of receipt and not pay the claim and interest until after the PRO decides against the insurer;
d) Pay the claim more than thirty days after receipt and pay interest; or
e) Pay the claim more than thirty days after receipt, pay interest, and challenge the claim by way of a PRO review within ninety days after receipt.
After receiving a completed HCFA-1500 form documenting the claim, the insurer may-not withhold payment indefinitely while it “investigates” the claim.

Earlier this year, this court certified the following Interest Class against AIICo:

All medical providers who submitted bills under the [MVFRL] to American Independent Insurance Company, who received payment for such bills more than thirty (30) days after the submission of the bills, and who were not paid interest or were paid less than the amount of interest provided for in [the MVFRL].

In doing so, this court refused to certify a second, late Payment Class against AIICo and reasoned as follow:

AIICo argues that questions affecting individual members predominate over common questions of law or fact with respect to both classes. However, its argument has merit only with respect to the payment class. The difference is due to the fact that AIICo has numerous potential defenses to payment of claims, but it has few defenses to payment of interest once a claim has been paid late.
For example, when AIICo first receives a claim it. must determine if the claim involves a covered person, injury and event. If not, then AIICo has no duty to pay it. AIICo must also determine if the PIP benefits have been exhausted with respect to such claim. If so, then AIICo’s obligation to pay has ceased. A comparison of AIICo’s two databases, Mitchell and Izzy, may reveal the totality of claims that were not paid, but that comparison apparently does not reveal which claims were or should be denied. Such determinations must be made on a claim by claim basis and are not amenable to class-wide resolution based on aggregated claims data.
These issues do not exist for the interest class because the claims of those class members have, by definition, already been paid by AIICo, although paid untimely. Therefore, questions as to the legitimacy of those claims have been resolved by AIICo in favor of each class member, and it does not appear that they need to be revisited here on an individual basis.
While th[is] court does not approve of any insurer’s failure to act on claims submitted to it, th[is] court must heed the Supreme Court’s recent admonition not to certify a class based solely on sympathy for the class members or dislike of the defendant’s conduct. Instead, the claims certified must be amenable to class-wide proof. Freedom has shown that the claims of the interest class may be so proven, but it has failed to show that those of the payment class can be.

Less than two weeks later, the Superior Court in Glick found that the interest class of medical providers should not have been certified in that case because “what will constitute ‘reasonable proof [of the amount of benefits due under the MVFRL] is a question of fact answered on a case by case basis after review of relevant evidence addressing several factors, including coverage, causation, and medical necessity’.... This factual inquiry requires individualized determinations not readily suitable for class action.”

In light of the Superior Court’s holding in Glick, which was directly contrary to this court’s rulings in this case, AIICo filed a motion for reconsideration of this court’s 01/13/14 certification order and 07/03/12 summary judgment order. After AIICo filed its motion for reconsideration here, the Superior Court denied progressive’s motion to convert memorandum decision to published opinion. Therefore, the Glick opinion is not binding precedent except among the parties to that action:

“An unpublished memorandum decision shall not be relied upon or cited by a court or a party in any other action or proceeding, except...when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel.”

AIICo makes an interesting argument for why the Glick opinion may be cited as precedent here. Because a class of medical providers had been certified in Glick and a similar class has been certified in this AIICo case, many of the same medical providers are necessarily parties to both actions. As such, under the principles of offensive collateral estoppel, those medical providers may be precluded from claiming against any insurer in this or another action that the HCA-1500 constitutes “reasonable proof under the MVFRL triggering the thirty day period in which the insurer must pay the bill or pay interest on untimely payments.

The problem with AIICo’s argument is that it is highly unlikely the classes in Glick and AIICo are completely identical. Therefore, some of the class members in this case may be barred from re-litigating the issue that was litigated on their behalf in Glick, but others, who received late payments from AIICo, but not from Progressive, would not be. If this court declined to apply Glick to this latter group, it would have to modify the AIICo class definition as follows:

All medical providers who submitted bills under the [MVFRL] to American Independent Insurance Company, who received payment for such bills more than thirty (30) days after the submission of the bills, and who were not paid interest or were paid less than the amount of interest provided for in [the MVFRL], except for those medical providers who previously submitted bills under [the MVFRL] to Progressive Northern Insurance Company, and who received payment for such bills more than thirty (30) days after the submission of the bills, and who were not paid interest or were paid less than the amount of interest provided for in [the MVFRL],

Such a class definition is nonsensical. Instead, this court will adopt the Superior Court’s reasoning in Glick as its own in this case. As a result, this court reconsiders its prior decisions, vacates its 01/13/14 certification order and 07/03/12 summary judgment order, grants in part AIICo’s motion for summary judgment, denies Freedom’s motion for summary judgment, and denies Freedom’s motion for class certification, all on the basis that what will constitute “reasonable proof of the amount of benefits” due under the MVFRL is a question of fact answered on a case by case basis after review of relevant evidence addressing several factors, including coverage, causation, and medical necessity. This factual inquiry requires individualized determinations not readily suitable for class action.

ORDER

And now, this 6th day of June, 2014, upon consideration of defendant’s motion for reconsideration of this court’s orders entered January 13, 2014 and July 3, 2012, the response thereto, and all other matters of record, and in accord with the opinion issued simultaneously, it is ordered as follows.

1. The motion for reconsideration is granted;
2. The order entered July 3, 2012, in which the court granted plaintiffs’ motion for partial summary judgment and denied defendant’s motion for summary judgment, is vacated;
3. The order entered January 13, 2014, in which the court granted in part plaintiffs’ motion to certify the class, is vacated;
4. Plaintiffs’ motion for partial summary judgment is denied, defendant’s motion for summary judgment is granted in part, and plaintiffs’ motion to certify the class is denied because plaintiff’s claims with respect to the interest class involve significant factual inquiries requiring individualized determinations not readily suitable for class action; and
5. Plaintiff Freedom Medical Supply, Inc.’s remaining individual claims in this action are transferred to this court’s compulsory arbitration program.

      . The undersigned uses the term “this court” in this opinion to encompass all the past and present judges of the civil trial division in Philadelphia County, not just the undersigned. We are part of a unified judicial system; we strive for consistency in our decision making and are ever mindful of the law of the case doctrine and other rules regarding legal precedent.

      . Similar provider class actions against late paying insurance companies have been filed with this court under the workers’ compensation act.

      . 75 Pa. cons. stat. ann. § 1716 (“Benefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the amount of the benefits. If reasonable proof is not supplied as to all benefits, the portion supported by reasonable proof is overdue if not paid within 30 days after the proof is received by the insurer. Overdue benefits shall bear interest at the rate of 12% per annum from the date the benefits become due.”)

      . Glick v. Progressive, March Term, 2002, No. 001179.

      . Order entered October 2,2003 (Cohen, J.)

      . Order entered April 17, 2009 (New, J.)

      . Freedom v. AIICo, February Term, 2009, No. 04484.

      . Schappell v. Motorists Mut. Ins. Co., 594 Pa. 94, 934 A.2d 1184 (2007).

      . Id., 594 Pa. at 105, 934 A.2d at 1190. In reaching this decision, the court reversed the order of the Superior Court and remanded the case to the Court of Common Pleas of Dauphin County. .

      . Kaplan v. SEPTA, December Term 1999, No. 0280. On appeal, the case was renamed “In re SEPTA MVFRL Interest Litigation.”

      . Order entered October 27, 2000 (Levin, J.)

      . Order entered December 23, 2008 (Levin, J.)

      . In re Septa MVFRL Interest Litig., 996 A.2d 1099, 1108 (Pa. Commw. 2010).

      . Glick v. Progressive Northern Ins. Co., No. 2073 EDA 2012 & No. 2145 EDA 2012 atpp. 8-9 (Super. Ct. Jan. 24, 2014).

      . “An unpublished memorandum decision shall not be relied upon or cited by a court or a party in any other action or proceeding, except... when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppel.” 210 Pa. Code § 65.37; Boring v. Erie Ins. Grp., 434 Pa. Super. 40, 43, 641 A.2d 1189, 1191 (1994).

      . Order entered July 3, 2012 (Glazer, J.).

      . See 31 Pa. Code § 69.25 (“To the extent possible, a Part B provider shall utilize Medicare procedure codes for the service rendered and shall utilize form HCFA-1500 or the form currently in use by Medicare.”)

      . If the denial is later found to be improper, the insurer must pay the claim plus interest running from the date thirty days after the HCFA-1500 form was submitted. See 75 Pa. C.S. § 1716.

      . If the PRO rules against the insurer and the insurer does not appeal or ask for reconsideration, the insurer must then pay the claim plus interest running from the date thirty days after the HCFA-1500 form was submitted. See 75 Pa. C.S. § 1797(b)(5).

      . AIICo argues, in essence, that thirty days is far too short a time in which to investigate a claim and decide whether to pay it or not. If so, it must request relief from the Legislature, which imposed the thirty day payment deadline found in the MVFRL.

      . Order entered January 13, 2014 (Glazer, J.). Certification followed 4 years of contentious discovery on the issue of class certification.

      . See Samuel-Bassett v. Kia Motors Am.. Inc., 613 Pa. 371, 409, 34 A.3d 1, 23 (2011) (“a class consisting of members for whom most essential elements of its cause or causes of action may be proven through simultaneous class-wide evidence is better suited for class treatment than one consisting of individuals for whom resolution of such elements does not advance the interests of the entire class.”).

      . If that is actually what AIICo has done.

      . See Basile v. H&R Block. Inc., 52 A.3d 1202, 1211 (Pa. 2012) citing Allan Erbsen, From “Predominance” to “Resolvability”: A New Approach to Regulating Class Actions, 58 Vand. L.Rev. 995, 1009-10 (2005) (“The practical problems with certifying class actions despite dissimilarity among claims arise from the natural human instinct to simplify the inherently complex and to create order out of what appears chaotic. . . [Aggregating distinct individual claims into a class obscures differences among class members in ways that engender substantive consequences”).

      . Opinion accompanying 1/13/14 Order, pp. 5-7.

      . Glick v. Progressive Northern Ins. Co., No. 2073 EDA 2012 & No. 2145 EDA 2012 atpp. 8-9 (Sup. Ct. Jan. 24, 2014).

      . A Petition for Allowance of Appeal is currently pending before the Supreme Court in Glick.

      . 210 Pa. Code § 65.37; Boring v. Erie Ins. Grp., 434 Pa. Super. 40, 43, 641 A.2d 1189, 1191 (1994).

      . See Safeguard Mut. Ins. Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975) (“With respect to collateral estoppel, we have recently stated that a plea of collateral estoppel is valid if, 1) the issue decided in the prior adjudication was identical with the one presented in the later action, 2) there was a final judgment on the merits, 3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and 4) the party against whom it is asserted has had a Ml and fair opportunity to litigate the issue in question in a prior action.”)


author: LOVECCHIO, J,

text:
    Commonwealth v. Boyd

      C.P. of Lycoming County,
    No. CR-1467-2013

      Kenneth Osokow, for Commonwealth.

      William J. Miele, for defendant.
    June 27, 2014
   LOVECCHIO, J,

OPINION AND ORDER

Before the court is defendant’s omnibus pretrial motion filed on February 28, 2014. By information filed on September 27, 2013, defendant is charged with criminal homicide and related charges. It is alleged that on July 20, 2013, defendant shot and killed Ansari Wilson.

Defendant’s omnibus pretrial motion consists of a motion to suppress defendant’s first statements, a motion to suppress contents of defendant’s phone call with his mother, a motion to sever and a motion for formal discovery.

A hearing and argument were held before the court on May 6, 2014. Prior to testimony being taken, defendant withdrew his motion to suppress defendant’s first statement, the Commonwealth agreed to the severance and the motion for formal discovery was deemed moot. The court entered an appropriate order on the record.

Accordingly, the hearing and argument only addressed defendant’s motion to suppress contents of defendant’s phone call. More specifically, while in police custody on July 22, 2013, defendant was interviewed by law enforcement officers. This interview was video and audio taped. Following the questioning, defendant was permitted to call his mother. Defendant actually spoke to his mother and for a very brief time with his father during the call. Defendant seeks to suppress all of the mother’s communications on the phone to the extent that said communications can be heard, as well as all of defendant’s communications to his mother and father while the police officers were out of the room.

Prior to testimony being taken, the parties stipulated to certain facts. First, the parties stipulated that if Agent Kontz of the Williamsport Bureau of Police was called to testify, he would testify, that the entire interview with the defendant on July 22, 2013 was “taped” and that prior to going into the interview room, defendant was advised that “his statements would be recorded.” Second, the parties stipulated that outside of the interview room on the door leading into the room, there was a sign that “in essence” said that one is subject to being recorded or monitored in the room. Finally, the parties stipulated that Commonwealth Exhibit 1 was the disc that contained the audio and video recording of the defendant’s interview with police on July 22, 2013.

The disc was played in court. As well, the court thoroughly reviewed the disc. Defendant is seated in the comer of a room with the door shut, being interviewed initially by two law enforcement officers, including Agent Kontz. Agent Kontz tells defendant that he is going to let him call his mom while Agent Kontz would look for a cigarette for him. Agent Kontz takes his paperwork, puts it together and then puts it in a folder or large envelope. While Agent Kontz is doing this, Agent Sorage enters the room and continues to ask questions, first while standing, and next after taking a chair and moving it close to defendant.

Both officers have defendant “cornered” while asking questions. The questioning apparently ends and Agent Sorage says “have we treated you fair, have we been good to you” to which defendant answers “yeah.” Agent Sorage then says “one other stupid question.” He asks about defendant’s street name “Mug.” Based on defendant’s answer, the law enforcement officials start laughing. Agent Sorage then shakes defendant’s hand. Agent Kontz tells the defendant he’s going to get him his cigarette and let him call his mom and then says “we’ll get our stuff together and figure out what’s up next.” Agent Kontz hands defendant a cell phone and then shakes defendant’s hand as well. Both Agent Sorage and Agent Kontz leave the room and close the door. The interview up to that point lasted 34 minutes and 50 seconds.

Defendant takes the phone and calls his mother apparently at two different numbers. He finally gets through approximately a minute later. During the conversation, defendant makes certain alleged admissions to his mother, talks in detail about the accusations against him, his apprehension and the charges. He talks about what evidence they have against him. He specifically tells his mom “you can talk, no we can talk.” He indicates what the witnesses are apparently “saying.” The conversation becomes emotional with defendant starting to cry and telling his mother “there’s nothing to do, I did this to myself.” Defendant further notes that “I’m going, ‘cause I don’t want to hurt you mom.’” Defendant then speaks to his father saying “I’m booked, they got me.”

At approximately 39 minutes and 54 seconds, after about five minutes of defendant talking on the phone with his mother and very shortly with his father, Agent Kontz steps back into the room, leaving the door open. He specifically asks defendant if he wants Agent Kontz to talk to defendant’s parents to tell them what’s going on because he’s “got to wrap this up.” Defendant speaks briefly with his mother and then gives the phone to Agent Kontz. Agent Kontz stops the recording.

Defendant asserts that his conversations with his parents while the police were not present should be suppressed as well as the conversations that his mother and father had with him. Defendant asserts that suppression is appropriate under Pennsylvania’s Wire Tapping and Electronic Surveillance Control Act, 18 Pa. C.S.A. § 5701 et. seq. More, specifically, defendant argues that both he and his parents are aggrieved persons under the act and that their conversations with each other were illegally intercepted.

The parties do not dispute that under the act law enforcement officials may not intercept, or in this case simultaneously record, a private telephone conversation. 18 Pa. C.S.A. §§ 5703, 5704; see also Commonwealth v. Deck, 954 A.2d 603 (Pa. Super. 2008), appeal denied, 600 Pa. 738, 964 A.2d 1 (2009). The parties dispute, however, the applicability of the act. Defendant argues that both he and his parents are aggrieved persons and thus entitled to the protections of the act, while the Commonwealth contends that none of the individuals are aggrieved parties or defendant did not have a reasonable expectation that his communications with his parents would remain private.

In accordance with the act, any aggrieved person who is a party to any proceeding in any court may move to exclude the contents of any wire, electronic or oral communication 18 Pa. C.S.A. § 5721.1(b). Pursuant to the act, an “aggrieved person” is a “person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed.” 18 Pa. C.S.A. § 5702. An “oral communication” is any “oral communication uttered by a person possessing an expectation that such communication is not subject to any interception under circumstances justifying such expectation.” 18 Pa. C.S. §5702.

In determining what constitutes an “oral communication” under the act, “the proper inquiries are whether the speaker had a specific expectation that the contents of the discussion would not be intercepted and whether that expectation was justifiable under the existing circumstances.” Agnew v. Dupler, 553 Pa. 33, 717 A.2d 519, 523 (1998).

Defendant argues that he communicated with his mother and father and that they communicated with him under such circumstances that they possessed an expectation that their communications were not being recorded. Therefore, defendant argues that they are aggrieved persons.

The Commonwealth bears the burden to prove by a preponderance of the evidence that defendant and his parents are not aggrieved persons, they did not have a justifiable expectation that their communications would not be subject to interception or the interception falls within one of the exceptions set forth in Section 5704. See 18 Pa. C.S.A. § 5721.1 (c)(4).

While defendant knew and consented to his interview with the police officers being recorded, there is little, if any, evidence to prove that he consented to the conversation he had with his parents being recorded. Prior to the interview, defendant was advised that his statements would be recorded. The clear implication of this is that his statements to the police would be recorded. The sign on the outside of the room was vague at best and there is no evidence to indicate that defendant read it or was aware of it. Defendant’s parents were not even in Williamsport. Obviously, they would not have any knowledge about the sign on the interview room door.

Clearly, prior to defendant speaking with his parents, the interview had ended. Agent Kontz told defendant they were going to allow him to call his mother. Both agents shook defendant’s hand and Agent Kontz specifically said that the officers were going to “get [their] stuff together and figure out what’s up next.” Agent Kontz handed defendant a cellular phone. Both officers then left the room and closed the door, giving the defendant the impression that he was in private. Moreover, the content of the conversation between defendant and his parents exhibited defendant’s .lack of consent to it being recorded. He made admissions, talked in detail about his apprehension, the accusations against him and the charges. He spoke of the evidence against him and clearly told his mother at the beginning that they could talk. The conversation became emotional and defendant spoke in terms with his mother that evidenced a lack of consent. Finally, the entire conversation except for the last portion was not interrupted. The police gave defendant five-plus minutes for the conversation. Under these circumstances, the court cannot conclude that the Commonwealth established that defendant and his parents lacked a justifiable expectation that their communications would not be subject to interception.

Curiously, during the argument in this matter, the parties analyzed the conversations between defendant and his parents as “oral communications.” Because, however, the conversation took place on a cellular telephone, it is more properly characterized as “an electronic or wire communication,” thus eliminating the requirement in connection with oral communications that the “speaker demonstrate a privacy expectation.” Commonwealth v. Rosa, 21 A.3d 1264, 1269 (Pa. Super. 2011), reversed on other grounds, 64 A.3d 627 (Pa. 2013); see also Commonwealth v. Deck, 954 A.2d 603 (Pa. Super. 2008), appeal denied, 600 Pa. 738, 964 A.2d 1 (2009). Defendant and his parents clearly meet the definition of an aggrieved party for an electronic or wire communication because they were parties to the cellular telephone conversation.

It is undisputed that the law enforcement officials did not obtain court approval, the approval of the district attorney or the consent of all the parties prior to recording defendant’s telephone conversation with his parents. Therefore, regardless of whether defendant’s cellular telephone conversation with his parents was an electronic, wire or oral communication, it was recorded in violation of the act and its contents must be suppressed.

Accordingly, the following order is entered.

ORDER

And now, this day of June 2014, following a hearing and argument, defendant’s motion to suppress is granted. The Commonwealth is precluded from utilizing against defendant at trial any of defendant’s conversation with his parents or his parent’s conversation with him during the telephone call following defendant’s interview with police on July 22, 2013..

      . The video that the Commonwealth submitted as an exhibit does not depict defendant entering the room or the sign on the door. It does, however, show that defendant is handcuffed, the handcuffs are attached to a chain around defendant’s waist, and the door swings inward when the officers enter the room. The handcuffs are removed so defendant can sign a form to waive his Miranda rights. If anything, these facts would support an inference that the police opened the door for defendant to enter the room, at which point the officer’s body likely would have obstructed any sign on the door.

      . After the decision in Deck, the Legislature amended the statute to include an exception for victims to intercept communications when they have reasonable suspicion that the intercepted party is committing, about to commit or has committed a crime of violence and there is reason to believe that evidence of the crime of violence may be obtained from the interception. 18 Pa.C.S. §5704(17).


author: TUNNELL, J.,

text:
    Smith v. Hemphill

      C.P. of Chester County,
    No. 2012-04425

      Barry R. Rothman, for plaintiffs.

      Lawrence E. Wood, for defendants.
    June 27, 2014
   TUNNELL, J.,

FINDINGS OF FACT

1. William Smith, Sr. is a principal of the plaintiff, Evergreen Management Group, Inc. (hereinafter referred to as “Evergreen”), a corporation organized and existing under the laws of the Commonwealth of Pennsylvania.

2. Brian Hemphill is a principal of defendant, Commercial Snow + Ice, LLC (hereinafter referred to as “Commercial”), a limited liability company organized and existing under the laws of the Commonwealth of Pennsylvania.

3. By email dated November 22, 2010, Commercial extended an offer to Evergreen to do snow and ice removal, shoveling and salting, as its sub-contractor at various locations and for specified sums depending on snowfall amounts.

4. Evergreen indicated general interest.

5. On the following day, November 23, 2010, Commercial sent Evergreen an attachment of four or five pages containing additional terms and conditions and requested a signature.

6. Commercial was contracted to a third party, Brickman Facilities Solutions, Inc. (hereinafter referred to as “Brickman”), to provide snow and ice removal at two Acme Supermarket locations in south Philadelphia. Brickman’s contract, denominated a service partner subcontractor agreement, contained, among other things, the same scope of services which in fact Commercial copied and redacted in some fashion and sent to Evergreen.

7. Commercial did not sign the Brickman contract until February 2011. The Brickman contract contained a “no assignment” clause which prohibited Commercial from subcontracting with others.

8. Evergreen was not aware that it was in fact a sub-sub-contractor, was not aware of any relationship between Commercial and Brickman, and was obviously unaware of any prohibition that would have precluded its being hired.

9. There were further emails between Smith and Hemphill, the principals of these two parties, the plaintiff indicating it wished to meet to go over Acme’s requirements, and the defendant requesting a signature on the scope of services agreement.

10. Neither happened.

11. Plaintiff proceeded to enter into performance during the balance of December 2010 through late February 2011.

12. Plaintiff generated 47 invoices for its services, of which 20 were paid and 27 remained outstanding.

13. Plaintiff took care to receive a service ticket with a signature or stamp every time it plowed or performed other services at an Acme location, indicating Acme’s satisfaction with the work.

14. At no time did Evergreen proceed to perform any services without first being dispatched by defendant.

15. At some point a third location, Stella Maris Church, was added as a customer.

16. Defendant Commercial asserted three reasons for non-payment: overcharging, double billing and shoddy workmanship.

17. At no time did defendant contemporaneously notify plaintiff of any complaint regarding the work performed.

18. Two personal injury claims arose at locations serviced by the plaintiff.

19. No evidence was introduced to show a causal connection as to plaintiff’s services.

20. Smith called Brickman complaining of being unpaid by Commercial, but made no derogatory remarks concerning Commercial.

21. Although Commercial was terminated by Brickman, this had to do with Commercial’s violation of the “no assignment” clause in hiring Evergreen, and nothing to do with any lack of quality in the snow plowing at the Acme locations or any disparaging remarks.

22. Commercial made claim for its expenses in cleaning up after Evergreen on several dates, and for administrative time expended because of Evergreen’s poor performance.

23. No documentation or testimony was afforded to support these claims.

DISCUSSION

Evergreen was hired in the early winter of 2010 as a sub-sub-contractor to remove snow and ice by Commercial which, in turn, was a sub-contractor for those purposes to a third party, Brickman. The court has determined that this is purely a dispute between two disclosed commercial entities about the performance of certain plowing and salting services. The plaintiff conceded in closing argument that William Smith, Sr. was not properly a party plaintiff, and the court agrees. He is removed as such. Although there are counterclaims by the defendants, the court has determined that they are not meritorious. Likewise, although the principal of Commercial, Brian Hemphill, was named as an individual party defendant, he has no liability as such to the plaintiff and he should not have been so named. He is dismissed from this action.

This dispute involves the plaintiff’s services at three locations in south Philadelphia, two of them being at Acme Markets, referred to at trial as “Johnston” and “Passyunk” by virtue of their locations. The third location was Stella Maris, a church. After Commercial failed to pay 20 of 47 invoices sent to it by Evergreen for services rendered at the foregoing properties on various dates, suit was instituted. The complaint alleged two counts, breach of contract and quantum meruit for the value of the services provided. Although the plaintiff has referred to its contract with defendant as implied, the court regards the contract between them as express.

The distinction between express and implied contracts rests on alternative methods of contract formation. Contracts are “express” when the parties state their terms and “implied” when the parties do not state them. The distinction is based not on the contracts’ legal effect, but on the way the parties manifest their mutual assent. In Re: Penn Cent. Transp. Co., 831 F.2d 1221, 1228 (3d. Cir. 1987). In other words, the terms “express” and “implied” do not denote different kinds of contracts, but rather reference the evidence by which the parties demonstrate their agreement. Baer v. Chase, 392 F. 3d. 609, 616 (3d. Cir. 2004). The plaintiff’s suggestion that its agreement is “implied” rather than “express” advances a distinction without a difference as to the mode of contract formation and is immaterial to the disposition of its breach of contract claim. This is because different legal consequences do not flow from analyzing the alleged contract as implied-in-fact rather than express. Id. Because the court has determined that there is an express contract, there cannot, however, be an implied contract covering the same subject matter. In Re: Penn Cent. Transp. Co., 831 F. 2d. at 1229-30. Express contract and implied-in-fact contract theories are mutually exclusive. Baer, at 617. Consequently, there can be no recovery under a quantum meruit theory when the parties’ relationship is based upon an express contract for services. Hershey Foods Corp. v. Ralph Chapek, Inc., 828 F. 2d. 989 (999 3d. Cir. 1987).

The crucial terms in this case were in writing. Defendant’s email to the plaintiff on Monday, November 22,2010 (Defs. ’ ex. 3) is an offer that contains the property locations and the proposed compensation for each. For example, if the snowfall was “0 to 3 inches” at Johnston Street, the offer was to pay plaintiff $436 to shovel the walkways and plow the lot, and $217 to apply salt to the lot and walkways. The offer contained additional and various compensation schemes depending on the amount of snowfall. To this plaintiff Evergreen indicated general interest. Defendant Commercial followed up by sending four (4) or five (5) pages of certain specifications and conditions on the following day and indicated that plaintiff was to sign this paperwork.

For the next two weeks, according to the emails, there was certain back and forth. Plaintiff indicated that it wanted to meet and go over Acme’s needs. That meeting never occurred, nor did the plaintiff sign anything. It was the defendant’s intention to have Evergreen become bound to all the terms and conditions that Commercial was in turn required to meet under a proposed written contract it had with Brickman. What Commercial sent by way of email attachment was four (4) or five (5) pages from the Brickman contract concerning “scope summary,” apparently redacted at least in part to make it appear to be a contract between it and Evergreen. Testimony revealed that in fact defendant Commercial had not signed the very contract with Brickman that it wanted Evergreen to sign with it. In fact, defendant did not sign the Brickman contract until February 7, 2011, by which time plaintiff had almost concluded its services.

An express contract can be accepted by performance, and plaintiff entered into its performance by plowing, shoveling and salting the two Acme locations, and later the church location as well when it was added by the defendant as a customer. The question for the court was what contract did plaintiff accept? The court determines that there was never a meeting of the minds in respect to the four (4) or five (5) page attachment containing additional terms, some of which were in conflict with the email offer referred to above. (Defs.5 ex. 3). A further problem is that only one page of the redacted contract came into evidence (Defs.’ ex. 18), as a consequence of which the court was unable to study or analyze any of the other terms to which the defendant wanted to obligate the plaintiff. For these reasons, the court believes that the only contract, and it was an express one, was that offer contained in defendant’s exhibit 3 which was accepted by plaintiff’s performance.

The defendant offered three reasons why it refused to pay the outstanding invoices submitted by Evergreen. The first is that the plaintiff did not charge at the contract rate, as set out in the offer. Mr. Hemphill was quite convincingly proven wrong in this assertion during trial and, on the contrary, the charges were mathematically correct. He also claimed that the plaintiff double-billed him on two or three separate occasions. However, in the court’s view, Mr. Hemphill was unconvincing in his testimony. On the matter of his billings, he appeared equivocal and appeared to have no real confidence in his own billings for the same dates to his vendor, Brickman. Brickman was a long-time customer, and Hemphill had been in the business many years. It thus surprised the court when Hemphill testified as follows:

In the case of Brickman, they were sending me checks that I had no idea what they were to, and then I had to try to make sense of it all. So I would have to randomly put together basically a puzzle saying, you know what, I’m going to add these numbers up with something else and just try to make it fit, and that’s why I had, you know, all these spreadsheets and a tremendous amount of correspondence trying to make sense of it all. (N.T., 5/15/14, pp. 12-13).

On another occasion, when asked about certain invoices, Hemphill stated:

A lot of times, like I was saying, these invoices would come in and I would average them, I would take what he wrote, average it out, send it out, right out the door. That’s just one way.
I mean, it’s just — you know, you got so much going on when you’re billing that there’s really — I don’t have, like, a hard and fast rule of this is how I do it, even though I should. (N.T. 5/15/14, pp. 7-8).

Consequently, the court had no confidence in Mr. Hemphill’s paperwork.

Defendant’s final reason for not paying some of the invoices was that the plaintiff performed “shoddy work.” Here he also lost the credibility battle. Firstly, he raised no specific complaints with the plaintiff contemporaneous with the events in question. Secondly, a witness from the Brickman organization was called who articulated that there were “no major problems” with the snowplowing services at the two Acme locations that winter. Plaintiff was required to and did get signatures from the Acme managers after each plowing or salting, which satisfies the court that there was no real problem of any kind. It is true that on one occasion a Bobcat had to be called in to relocate certain piles of snow. But this in the court’s mind did not indicate a shoddy or subpar performance. Other exhibits admitted into evidence indicated that this occasion had been a very significant snowfall and that the problem was a general one at many locations, not just where the plaintiff had worked. For these reasons, the court will award damages to the plaintiff in the amount of the unpaid invoices for which claim has been made, plus interest.

The court now addresses the counterclaims made by defendant Commercial. One concerned tortious interference because certain supposed derogatory comments were made by the plaintiff’s principal, Mr. Smith, to Brickman. The testimony by Brickman witnesses indicated, however, that no derogatory remark had anything to do with Commercial’s termination by Brickman. In point of fact, the credible evidence is that Commercial was terminated by Brickman for violating the “no assignment” clause in the contract between them, which Commercial did by hiring Evergreen. (N.T., 4/22/14, pp. 74, 96).

Defendant was also aggrieved that his liability insurance was increased, apparently as the result of two slip and falls at locations that plaintiff was servicing for defendant. However, the record is completely devoid of any evidence that plaintiff’s services had any causal connection with such premium increase.

Defendant also claimed certain amounts were due it for cleaning up after the plaintiff on several different dates. It further makes claim for administrative time expended due to poor performance by Evergreen. Unfortunately, Mr. Hemphill forgot to bring the documentation with him to trial and, as no testimony was given, these claims must fail. The counterclaims were unproven.

CONCLUSIONS OF LAW

1. An express contract for services was formed between these parties.

2. Plaintiff did not breach its contract.

3. Defendant’s given reasons for refusing to pay the 27 invoices submitted by plaintiff lack merit.

4. Plaintiff is entitled to the unpaid principal amount of $16,045.40, plus interest at the legal rate.

5. Defendant breached the contract by failing to pay the plaintiff in full.

6. Plaintiff’s performance had nothing to do with defendant Commercial’s termination as a sub-contractor of the Brickman organization.

■7. Plaintiff’s performance had nothing to do with either the causation of the slips and falls, or any premium increment arising therefrom.

ORDER

And now, this 27th day of June, 2014, after a trial by the court sitting without a jury held on April 22, 2014, April 24, 2014 and May 15, 2014, and in accordance with the foregoing decision, it is hereby ordered and decreed that:

1. William Smith, Sr. is dismissed as a party in this case;

2. Brian Hemphill is dismissed as a party in this case;

3. On the complaint, the court finds in favor of plaintiff, Evergreen Management Group, Inc., and against defendant Commercial Snow + Ice, LLC in the principal amount of $16,045.40, with interest to be computed and added at the legal rate;

4. On the counterclaims, the court finds in favor of the plaintiff, Evergreen Management Group, Inc., and against the defendant, Commercial Snow + Ice, LLC, in no amount.