author: NALITZ, J.,

text:
    McIntire v. Szczyrbak

      C.P. of Greene County,
    A.D. no. 418, 1998.

      J. Michael Benninger, for plaintiff.

      Stephen P. McCloskey, for defendant.
    November 30, 1998
   NALITZ, J.,

On August 5, 1998, the plaintiff, Nikki Ann Mclntire, filed a civil complaint against the defendant, Bradford William Szczyrbak, alleging that the defendant was negligent in operating an automobile on July 6, 1997, causing an accident in which the parties’ vehicles collided, allegedly resulting in injury to the plaintiff. The complaint further alleges that the defendant operated his vehicle while under the influence of alcohol in violation of section 3731 of the Pennsylvania Motor Vehicle Code, and that he entered a plea of guilty to this offense on January 22, 1998. In her complaint, the plaintiff alleges she was entitled to full tort benefits under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., and seeks compensation for damages including wage loss, pain and suffering, mental anguish, humiliation and loss of enjoyment of life. In addition to these damages, the plaintiff also seeks punitive damages, alleging reckless conduct on the part of the defendant. On September 14, 1998, the defendant filed preliminary objections in the nature of a demurrer, alleging that Pennsylvania law does not permit the recovery of punitive damages in a cause of action arising out of a motor vehicle accident. Both parties filed briefs, and oral argument was heard on November 13, 1998.

The defendant relies upon Reimer v. Delisio, 296 Pa. Super. 205, 442 A.2d 731 (1982), aff’d per curiam, 501 Pa. 662, 462 A.2d 1308 (1983), for the proposition that punitive damages are not recoverable for negligence causes of action arising out of a motor vehicle accident. However, Reimer was decided under the provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. §1009.101 et seq. (Repealed.) The present case is governed by the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. §1701 et seq., which is not a “no-fault” system but rather is based upon existing tort law. Pursuant to the MVFRL, persons who elect the full tort alternative when purchasing insurance are entitled to recover compensation for noneconomic loss claimed “as the consequence of the fault of another person pursuant to applicable tort law.” 75 Pa.C.S. § 1705(c). This language indicates a return to the fault system wherein persons injured in motor vehicle accidents are entitled to the full panoply of tort remedies available for a negligence claim. In contrast, the Reimer court opined that punitive damages were excluded under the No-Fault Act, based upon statutory language that abolished all tort liability for accidents involving motor vehicles. Reimer, 296 Pa. Super, at 210, 442 A.2d at 733. Although Reimer has not been reversed or overruled, and thus the defendant alleges reflects the current state of Pennsylvania law, the reasoning in Reimer is not applicable to the MVFRL which requires proof of fault for recovery and, additionally, the MVFRL is to be construed liberally to afford the maximum possible coverage to claimants. Danko v. Erie Insurance Exchange, 428 Pa. Super. 223, 630 A.2d 1219 (1993), allocatur granted, 536 Pa. 642, 639 A.2d 27 (1994), affirmed, 538 Pa. 572, 649 A.2d 935 (1994).

Further, Pennsylvania permitted recovery of punitive damages by persons injured in automobile accidents prior to the enactment of the No-Fault Act. In Focht v. Rabada,217 Pa. Super. 35, 42, 268 A.2d 157, 161 (1970), the Pennsylvania Superior Court held that, “evidence of driving while under the influence of intoxicating liquors may constitute a sufficient ground for allowing punitive damages,” and remanded the case back to the trial court to determine whether the question of punitive damages should be submitted to the jury based upon the offers of proof. The present case is analogous to Focht in that it does not arise under the No-Fault Act and it involves a defendant who was driving while intoxicated, thus Focht is applicable to the present case. Based upon the foregoing, this court finds that punitive damages may be sought by the plaintiff and the defendant’s preliminary objections are overruled.

ORDER

And now, November 30, 1998, it is ordered that the defendant’s preliminary objections in the nature of a demurrer are overruled, and he is directed to file a responsive pleading within 20 days.


source: Caselaw Access Project

author: ROOF, P.J.,

license: Public Domain

text:
    Evans v. State Farm Insurance Co.

      C.P. of Elk County,
    no. 95-100.

      Bernard J. Hessley, for plaintiffs.

      Bradley J. Kraus, for defendant.
    October 3, 1997
   ROOF, P.J.,

Presently before the court for disposition are defendant’s preliminary objections to plaintiffs’ complaint.

STATEMENT OF FACTS/ PROCEDURAL HISTORY

Plaintiff Maureen Evans received medical treatment after she was injured in an automobile accident on February 6, 1993. Payment for her medical care was to be provided by defendant pursuant to the first party benefit coverage in plaintiffs’ insurance policy. At some point during Mrs. Evans’ treatment, defendant requested a peer review and received a determination from the peer review organization that any medical care rendered to Mrs. Evans after January 1, 1994, was unnecessary. According to said peer review, Mrs. Evans had regained her pre-injury condition by that date.

On February 2,1995, plaintiffs commenced this action against defendant requesting that the court direct defendant to pay all fees for medical treatment, services and merchandise on or after January 1, 1994, to the present as the same were reasonable and necessary and, further, to direct defendant to pay punitive damages and attorneys’ fees, interests and costs presumably pursuant to 42 Pa.C.S. §8371 which provides for special damages when an insurer acts in bad faith.

Defendant filed preliminary objections in the nature of a demurrer asking that the court dismiss that portion of plaintiffs’ complaint alleging bad faith or punitive damages, as the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq. is the exclusive remedy for an insured. Final ruling on said preliminary objections was stayed by order of court dated April 17, 1995, pending decision by the Supreme Court in Barnum v. State Farm Mutual Automobile Insurance Company, 430 Pa. Super. 488, 635 A.2d 155 (1993), which decision would have a direct impact on this court’s ruling in the above-captioned case.

The defendant filed a petition to lift the stay on August 14, 1997, as the Supreme Court had issued a ruling in Barnum. Argument on defendant’s petition was held September 22, 1997, at which time the parties also argued the merits of the defendant’s preliminary objections. At time of argument, defendant also raised, and the parties argued, the issue of standing with regard to plaintiffs’ ability to bring this action as an insured. Defendant’s petition was granted and the stay lifted on September 23, 1997, and for the following reasons, the defendant’s preliminary objections are granted.

DISCUSSION

We find not only that the MVFRL is the exclusive remedy for first party medical claims and that section 8371 is inapplicable to the instant matter but also that the plaintiffs lack standing to bring an action against the defendant.

Section 1797(b) of the MVFRL allows insurers to • utilize PROs to determine if medical treatment provided to a person injured in a car accident is reasonable and necessary. Subsection (b) further provides for the following:

“(2) PRO reconsideration. — An insurer, provider or insured may request reconsideration by the PRO of the PRO’S initial determination. Such a request for reconsideration must be made within 30 days of the PRO’S initial determination. . . .
“(3) Pending determinations by PRO. — If the insurer challenges within 30 days of receipt of a bill for medical treatment or rehabilitative services, the insurer , need not pay the provider subject to the challenge until a determination has been made, by the PRO. The insured may not be billed for any treatment, accommodations, products or services during the peer review process.
“(4) Appeal to court. — A provider of medical treatment or rehabilitative services or merchandise or an insured may challenge before a court an insurer’s refusal to pay for past or future medical treatment or rehabilitative services or merchandise, the reasonableness or necessity of which the insurer has not challenged before a PRO. Conduct considered to be wanton shall be subject to payment of treble damages to the injured party.
“(5) PRO determination in favor of provider or insured. — If a PRO determines that medical treatment or rehabilitative services or merchandise were medically necessary, the insurer must pay to the provider the outstanding amount plus interest at 12 percent per year on any amount withheld by the insurer pending PRO review.
“(6) Court determination in favor of provider or insured. — If, pursuant to paragraph (4), a court determines that medical treatment or rehabilitative services or merchandise were medically necessary, the insurer. must pay to the provider the outstanding amount plus interest at 12 percent, as well as the costs of the challenge and all attorney fees. . . .” (emphasis added)

Under subsection (b)(4), an insured can only bring a court action requesting payment of first party medical benefits when the insurer has not challenged the reasonableness or necessity of treatment before a PRO. Instantly, the defendant (insurer) did challenge Mrs. Evans’ (insured) medical treatments before a PRO, which determined that any treatments after January 1, 1994, were not reasonable or necessary. Therefore, it appears that under the terms of the MVFRL, plaintiffs lack standing to challenge defendant’s failure to pay for medical services provided after January 1, 1994.

Further, we also adopt the reasoning set forth in Kuropatwa v. State Farm Mutual Automobile Insurance Co., 29 D.&C.4th 494, 497-500 (1994), affirmed, 454 Pa. Super. 714, 685 A.2d 1050 (1996), where the court stated the following:

“[A] person who is not adversely affected in any way by the matter he seeks to challenge is not ‘ aggrieved’ thereby and has no standing to obtain a judicial resolution of his challenge. . . .
“The requirements of the formulation of the standing test are that an interest be ‘substantial,’ ‘direct,’ ‘immediate’ and ‘not a remote consequence of the judgment.’ An evaluation of the presence of these elements will determine whether the interest asserted renders a litigant ‘aggrieved.’. . .
“In the present case, [plaintiff] has alleged no facts which demonstrate that she has or will have a direct, immediate, and substantial interest in [defendant’s] denial of payment of her health care provider’s bills. . . . According to the amended complaint, the only parties aggrieved by the nonpayment of the medical bills are the two .named providers ....
“Plaintiff also has no standing to challenge decisions made pursuant to Act VI of the . . . (MVFRL) . . . The current statute completely removes the insured from the billing process. Specifically, section 1797(a) of the Act states:
“ ‘Providers subject to this section may not bill the insured directly but must bill the insurer for a determination of the amount payable. The provider shall not bill or otherwise attempt to collect from the insured the difference between the provider’s full charge and the amount paid by the insurer.’
“Additionally, section 1979(b)(7) provides: ‘If it is determined by a PRO or court that a provider has provided unnecessary medical treatment . . . the provider may not collect payment for the medically unnecessary treatment____If the provider has collected such payment, it must return the amount paid plus interest. ... In no case does the failure of the provider to return the payment obligate the insured to assume responsibility for payment for the treatment.’
“Clearly, under Act VI, any interest that a patient would otherwise have in payment of a health care provider’s medical bills is eliminated. In fact, if a challenge is to be made to [defendant’s] denial of payment of medical bills, only the health care providers, who have a direct, pecuniary interest in having their bills satisfied, may allege sufficient injury to have standing to sue under these circumstances.
“Additionally, plaintiff fails to allege or even suggest that the nonpayment of her medical bills prompted the health care providers to refuse future treatment of her. Moreover, these potential consequences are far too remote to award plaintiff standing to sue under Act VI.” (citations omitted)

Likewise, plaintiffs sub judice have no legal interest sufficient to invoke standing in the payment of their health provider’s medical bills. Further, while plaintiffs allege that it is “difficult if not impossible for . . . plaintiff to secure medical care ... for their injuries or for unrelated medical treatment, services and merchandise” from their health care providers since under the MVFRL an insured is not responsible for payment of the same, plaintiffs have failed to allege or aver specific instances where treatment or services have been withheld from Mrs. Evans because of the PRO determination.

We therefore find that plaintiffs lack standing to institute an action against the defendant for payment of medical services when the defendant has followed the procedures outlined in the MVFRL with regard to peer review and when plaintiffs have alleged no direct, immediate or substantial interest in defendant’s failure to pay their providers for treatment and services deemed medically unnecessary.

Finally, with regard to plaintiffs’ request for punitive damages, costs and attorneys’ fees pursuant to 42 Pa.C.S. §8371, the same must fail as the MVFRL is their exclusive remedy. Section 8371 states the following:

“In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

“(a) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3 percent.
“(b) Award punitive damages against the insurer.
“(c) Assess court costs and attorney fees against the insurer.”

While section 8371 would appear to permit a bad faith cause of action in the instant matter, such actions are precluded by the remedies available under the MVFRL. See Kuropatwa, supra. Referring to the Barnum case, the Kuropatwa court stated:

“The Pennsylvania Superior Court ruled that the remedies provided under section 1797(b) of the MVFRL were the only remedies permitted for first party medical claims. The court reasoned because the two statutes could not be reconciled, the specific remedies set forth at section 1797(b) should prevail over the more general remedy of bad faith damages under 42 Pa.C.S. §8371. This decision adheres to a fundamental rule of statutory construction, regarding statutory conflicts. 1 Pa.C.S. §1933. ‘If the conflict between the two provisions is irreconcilable the special provisions shall prevail and shall be construed as an exception to the general provision [of giving effect to both when possible].’ ” Id. at 502. (citations omitted)

The Kuropatwa court also noted that the Supreme Court reversed the Superior Court’s decision but “only on the issue of the necessity for seeking reconsideration before filing a court action and remains the controlling precedent on the issue of extra contractual relief under the MVFRL.” Id. at 502-503. Although the decision in Kuropatwa was affirmed without a published opinion, we rely on the lower court’s well-reasoned decision, finding it extremely persuasive, if not binding, and dismiss plaintiffs’ claim for punitive damages, costs and attorney fees.

Based on the foregoing, we enter the following:

ORDER

And now, October 3, 1997, upon consideration of defendant’s preliminary objections, argument and briefs, and consistent with the accompanying memorandum opinion, it is ordered and decreed that the preliminary objections are sustained, and the plaintiffs’ complaint is dismissed with prejudice.


author: REIBMAN, J.,

text:
    Woodland Manor Apartments v. Flowers
    C.P. of Lehigh County,
    no. 96-C-0201.

      Jordan D. Cunningham, for plaintiff.

      Lori A. Molloy, for defendant.
    November 4, 1998
   REIBMAN, J.,

Before the court is plaintiff’s action of ejectment and assumpsit. It presents the question of whether a tenant in federally assisted housing is strictly liable for the actions of members of her household or guests, i.e., whether the tenant may be evicted from her apartment when not personally at fault for a breach of her lease or without prior knowledge of its breach.

Delphia Flowers, defendant, has resided in a residential apartment owned by Woodland Manor Apartments, plaintiff, at 441 Central Boulevard, Bethlehem, Lehigh County, Pennsylvania, since 1989. On July 13, 1995, law enforcement officers, acting on information that defendant’s brother, Antrone Flowers, was en route to defendant’s apartment from Oklahoma with a quantity of illegal drugs and a handgun in a vehicle registered in Oklahoma, and pursuant to a warrant, forced their entry in defendant’s apartment within one hour after Antrone’s arrival. A search of the premises found narcotics and narcotics paraphernalia in an upstairs bedroom used by another brother, Randy Flowers, and a handgun in the trunk of a vehicle registered in Oklahoma. Antrone and Randy were arrested and subsequently convicted of various drug offenses.

There is no basis to believe defendant knew of the presence of the drugs or the paraphernalia in her apartment, consented to it, or even foresaw that they would be there. She was not charged with any offense. An investigating police officer testified he had no reason to believe she was part of the illegal activity. Defendant denied any knowledge or suspicion of the drugs or the paraphernalia. In fact, she testified she had not been on the second floor of the apartment since becoming a quadriplegic as a result of an automobile accident in 1993, and stayed on the first floor with one of her two minor children who has cerebral palsy. Her other child occupied one, and Randy occupied the other, of the upstairs bedrooms. Her caretakers, who were at the apartment daily, denied ever seeing or suspecting the presence of any drugs or paraphernalia at the apartment. Plaintiff’s property manager, who thoroughly inspected the premises as recently as one month before the drugs were discovered, denied any knowledge or suspicion of drugs or paraphernalia.

Plaintiff’s apartment complex is a section 8 “new construction” project. As such, it is subject to federal law and regulations promulgated thereunder. Goodwin v. Rodriguez, 520 Pa. 296, 304, 554 A.2d 6, 9 (1989). The United States Housing Act, 42 U.S.C. §1437 et seq., as amended, requires the lease agreement between the tenant and the owner of the apartment unit provide: “any drug-related criminal activity on or near such premises, engaged in by a tenant of any unit, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy.” 42 U.S.C. §1437f(d)(l)(B)(iii).

The regulations which pertain to the “new construction” program, 24 C.F.R. §880 et seq., specify, inter alia, the only grounds upon which the owner may terminate the tenancy, viz:

“The owner may not terminate any tenancy except upon the following grounds:
“(i) Material noncompliance with the lease;
“(ii) Material failure to carry out obligations under any state landlord and tenant act;
“(in) Any . . . drug-related criminal activity on or near such premises, engaged in by a resident, any member of the resident’s household, or any guest or other person under the resident’s control shall be grounds for termination of tenancy.” 24 C.F.R. §880.607(b)(l).

The legislative history of the amendments to the Housing Act provides:

“Termination of tenancy — The bill includes language to permit evictions from section 8 existing housing for criminal activity, including drug-related criminal activity. It is based on a similar provision contained in the Anti-Drug Abuse Act of 1988 governing public housing leases .... The committee assumes that if the tenant had no knowledge of the criminal activity or took reasonable steps to prevent it, then good cause to evict the innocent family members would not exit [sic].” S. Rep. no. 316,101st Cong., 2d Sess. 179(1990). reprinted in 1990 U.S.C.C.A.N. 5763, 5889.

This history reveals an intent that eviction is appropriate only if the tenant is personally at fault for a breach of the lease, i.e., if the tenant had knowledge of the criminal activities, or if the tenant had taken no reasonable steps under the circumstances to prevent the activity. See Syracuse Housing Authority v. Boule, 658 N.Y.S.2d 776 (City Ct. 1996); Charlotte Housing Authority v. Patterson, 464 S.E.2d 68 (N.C. App. 1995).

The lease agreement between the parties is, at best, ambiguous as to whether the tenant may be strictly liable for the actions of the members of her household or guest. In pertinent part, it provides: “[t]he landlord may terminate this agreement only for:

“(1) The tenant’s material noncompliance with the terms of this agreement.
“(2) The tenant’s material failure to carry out obligations under state Landlord and Tenant Act; or
“(3) Criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or near such premises, engaged in by a tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control . . . .” Lease agreement, paragraph 23(b).

“Notwithstanding any other provision of this lease, the tenant, members of tenant’s household, guests of tenant and other persons under tenant’s control shall not engage in unlawful activity, including drug-related criminal activity, in the tenant’s unit or on the project premises, and such unlawful activity shall be cause for termination of tenancy. ‘Drug-related activity’ means the illegal manufacture, sale, distribution, use, or possession of a controlled substance as defined in section 102 of the United States Controlled Substances Act, 21 U.S. Code §802. Criminal conviction under federal, state or local law shall not be a precondition for termination of tenancy.” Lease agreement, paragraph 13(c).

And finally:

“Illegal drugs and transactions involving illegal drugs are strictly prohibited.
“The head of household shall not do or permit any act which violates any law concerning illegal drugs.
“These acts include, without limitation, possession, use, distribution, transportation, sale, manufacture and storage of illegal drugs. Doing any of such acts or any other act involving illegal drugs is a violation of the lease and is grounds for immediate eviction from the property.
“The head of the household shall be responsible for his or her own acts, the acts of members of his or her household, and the acts of guests of the household and for any such acts involving illegal drugs done in the leased apartment or elsewhere on the landlord’s property.” Lease addendum, (emphasis in original)

Paragraphs 23(b)(1) and (2) of the lease require an affirmative act of noncompliance or a failure to act by the tenant. Paragraphs 23(b)(3) and 13(c) might arguably impose strict liability upon the tenant for the drug-related actions of the members of her household or guest. If that were the case, however, there would be no need for the lease addendum, which states “[t]he head of household shall not do or permit any act which violates any law concerning illegal drugs.” To do or permit an act requires knowledge before there can be an act of commission or omission. In other words, for the tenant to be evicted, she had to know, or have reason to know, of the problem and either allow it to persist or fail to take reasonable action to eliminate it. This interpretation is consistent, as it must be, with the legislative history of the statute.

Finally, the Pennsylvania Landlord and Tenant Act, 68 PS §250.101 et seq., provides:

“The following acts relating to illegal drugs shall be a breach of condition of the lease and shall be grounds for removal of the tenant . . .:
“(3) The seizure by law enforcement officials of any illegal drugs on the leased premises . . . .” 68 PS §250.505-A(a)(3).

If the legislature wished to make the tenant strictly liable, such language must plainly appear in the statute —no such language appears here. See e.g., Denoncart v. Commonwealth State Ethics Commission, 73 Pa. Commw. 59, 64, 457 A.2d 213, 216 (1983). (citations omitted) Moreover, the subsequently enacted Model Expedited Eviction of Drug Traffickers Act, 35 P.S. §780-151 et seq., provides an affirmative defense to an eviction of the tenant if the tenant did not know or have reason to know of the drug-related criminal activity or had done everything that could reasonably be expected in the circumstances to prevent the commission of the drug-related criminal activity. 35 P.S. §780-157(a). This provision is consistent with the legislative history of the Housing Act and clarifies the legislature’s intent with respect to the effect of the Landlord and Tenant Act.

Accordingly, for the reasons set forth above, where, as here, a public housing tenant is not personally at fault — by commission or omission — for the drug-related activity of a member of her household or guest, no good cause exists for termination of the lease and eviction.

ORDER

And now, November 4, 1998, upon consideration of plaintiff’s action of ejectment and assumpsit, and after a non-jury trial thereon and for the reasons set forth in the accompanying opinion, it is ordered that judgment be entered in favor of defendant and against plaintiff in no amount.

      . This history is consistent with the legislature history for similar provisions of the Housing Act which affect other types of public housing tenants.
      “The committee bill would amend a provision of the U.S. Housing Act that was added by the Anti-Drug Abuse Act of 1998. This provision makes criminal activity grounds for eviction of public housing tenants if that action is appropriate in light of all the facts and circumstances. This language was limited to criminal activity on or near the public housing premises.
      “This section would make it clear that criminal activity, including drug-related criminal activity, can be cause for eviction only if it adversely affects the health, safety, and quiet enjoyment of the premises. The committee anticipates that each case will be judged on its individual merits and will require the wise exercise of humane judgment by the PHA and the eviction court. For example, eviction would not be the appropriate course if the tenant had no knowledge of the criminal activities of his/her guests or had taken reasonable steps under the circumstances to prevent the activity.” S. Rep. no. 316, 101st Cong., 2d Sess. 179 (1990), reprinted in 1990U.S.C.C.A.N. 5763, 5941. (emphasis added)


author: CLARK, J.,

text:
    Grissinger v. Nationwide Mutual Insurance Co.

      C.P. of Dauphin County,
    no. 3235 S 1997.

      Richard A. Sadlock, for plaintiff.

      Karen Durkin, for defendant.
    January 9, 1998
   CLARK, J.,

Defendant, Nationwide Mutual Insurance Company, presented this court with preliminary objections to plaintiff’s complaint. Upon careful consideration of the arguments given, the preliminary objections are granted.

On August 21, 1995, plaintiff, Albert Grissinger, was involved in a motor vehicle accident in which he suffered injuries to his person. As a result of the collision, plaintiff alleges that he has been required to undergo extensive medical treatment. At all times relevant hereto, plaintiff was covered by a policy of insurance issued by Nationwide. Plaintiff submitted his medical bills to Nationwide for payment under the first-party medical benefits of his policy. Nationwide paid for a portion of the treatment, but declined to issue payment on the remainder.

Plaintiff contends that all of his medical bills were for the treatment of accident-related injuries which treatment was and continues to be reasonable and necessary. Nationwide has requested that plaintiff’s medical records be reviewed several times by a peer review organization. Plaintiff maintains that Nationwide did not need to request the peer reviews since his health care providers furnished sufficient documentation of the reasonableness and necessity of his care.

In Count I of the complaint, plaintiff avers that Nationwide acted without reasonable foundation in failing to pay all of the medical bills submitted for payment under his policy. He seeks to recover attorney’s fees, costs and interest under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1716 and §1798. Plaintiff further avers that Nationwide acted wantonly in denying him first-party benefits and, therefore, seeks treble damages and interest in accordance with 75 Pa.C.S. § 1797(b)(4).

In Count II, plaintiff has set forth a private cause of action against Nationwide for bad faith pursuant to 42 Pa.C.S. §8371. Plaintiff has described Nationwide’s use of the peer review process as a “sham” since his injuries are related to the accident and the denial of first-party benefits was without reasonable justification. Due to Nationwide’s alleged bad faith conduct, plaintiff contends he is entitled to an award of interest, punitive damages, court costs and attorney’s fees.

In response to the allegations contained in plaintiff’s complaint, Nationwide filed preliminary objections in the nature of a demurrer, motion for a more specific pleading and motion to strike. Preliminary objections shall be sustained only in cases that are free and clear from doubt. Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992). In ruling on an objection in the nature of a demurrer, all well-pleaded facts contained in the complaint and all inferences reasonably deducible therefrom must be accepted as true. Wurth by Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 584 A.2d 403 (1990). Only in matters where it appears with certainty that the law does not permit a recovery under the allegations pleaded will a demurrer be sustained. Foster v. Health Market Inc., 146 Pa. Commw. 156, 604 A.2d 1198 (1992).

Nationwide first argues that plaintiff failed to state a claim for bad faith since his only basis for such claim is Nationwide’s submission of plaintiff’s medical records to a PRO. Nationwide relies on Pennsylvania statutory law for the express authorization to request peer reviews. The Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1797(b)(1) provides that:

“Insurers shall contract jointly or separately with any peer review organization established for the purpose of evaluating treatment, health care services, products or accommodations provided to any injured person. Such evaluation shall be for the purpose of confirming that such treatment, products, services or accommodations conform to the professional standards of performance and are medically necessary.”

Nationwide argues that the law explicitly permits insurers to seek treatment evaluations from a PRO to determine if the treatment is reasonable and necessary. Nationwide contends that it merely exercised the powers given to it by the legislature when it submitted plaintiff’s medical records for a peer review evaluation. As Nationwide was acting in accordance with the law, it concludes that plaintiff does not have the basis to assert a bad faith action against it.

The issue before us then is whether Nationwide acted in bad faith by requesting peer review evaluations of plaintiff’s treatment and condition. In light of the decisions previously rendered by this court, we find that Nationwide conducted itself in a manner expressly permissible by law. Plaintiff has provided no foundation upon which a cause of action for bad faith could be asserted against Nationwide. Absent such foundation, Nationwide’s preliminary objections are granted and plaintiff’s complaint is dismissed.

The issue in this action was before us in Signor v. United States Fidelity & Guaranty Co., 115 Dauph. 279 (1995), wherein we dismissed a claim of bad faith brought pursuant to 42 Pa.C.S. §8371. In that case, the plaintiff sustained serious personal injuries in an automobile accident while covered by a policy of insurance issued by the defendant. The defendant referred the plaintiff’s medical bills to a PRO for an evaluation. The report prepared by the PRO concluded that some of the treatment being rendered to the plaintiff was unnecessary. As a result of the report, the defendant notified the plaintiff that it would not honor certain bills. On request, the plaintiff received a reconsideration of the peer review, which confirmed the initial conclusion that some of the treatment was not necessary. The plaintiff filed a complaint, alleging, in part, that the defendant acted in bad faith when denying payment of her medical bills. The defendant argued for a dismissal of the bad faith count claiming that the statutory remedy of bad faith contained in 42 Pa.C.S. §8371 was not available in a cause of action for first-party benefits under the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq.

In deciding whether to dismiss the bad faith count, we examined the decision of the Pennsylvania Superior Court in Barnum v. State Farm Mutual Auto Insurance Co., 430 Pa. Super. 488, 635 A.2d 155 (1993), reversed and remanded, 539 Pa. 673, 652 A.2d 1319 (1994). The Superior Court examined the interplay between 75 Pa.C.S. §1797 and 42 Pa.C.S. §8371. It explained that the specific provisions of section 1797 are an exception to the general remedy of bad faith provided at section 8371, and should be applied to claims for first-party benefits under the Motor Vehicle Financial Responsibility Law. Although Barnum was reversed, we adopted the Superior Court’s reasoning in ruling as follows:

“We hold that an insured cannot seek damages under section 8371 when they have only alleged that the act of submitting bills to a peer review organization for review constitutes bad faith. We would note that the insured would have to allege some misconduct on the part of the insurance company before the bills were submitted to the PRO in order to maintain a claim for damages under both 42 Pa.C.S. §8371 and 75 Pa.C.S. §1797.” Id., 115 Dauph. at 283.

Following our ruling in Signor, we were again confronted with a set of circumstances where an insured commenced an action against his insurer who refused to cover medical bills reviewed by a PRO on the grounds that the bills were not reasonable or necessary. In Herd v. Nationwide Insurance Co., 116 Dauph. 141 (1996), the plaintiff argued that the defendant’s request for a medical review of his treatment was merely a pretext for denying him benefits and thus, an act of bad faith. We began our analysis by examining the definition of bad faith conduct as found in Black’s Law Dictionary 139 (6th ed. 1990):

“Insurance. ‘Bad faith’ on part of insurer is any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of an action against an insurer for failure to pay a claim, such conduct imports a dishonest purpose and means a breach of a known duty (i.e. good faith and fair dealing), through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith.” Id., 116 Dauph. at 143. (citations omitted)

Keeping in mind the definition of bad faith, we reviewed the allegations contained in the plaintiff’s complaint and found that the essence of the defendant’s bad faith was an alleged practice of routinely conducting medical reviews on chiropractic treatment. Id., 116 Dauph. at 144. Even if that allegation were true, we did not believe that such practice amounted to bad faith as that term has been defined. Id. To the contrary, we believed that the practice of peer review was the antithesis of bad faith since it summons an independent report on the nature of an injured party’s treatment. Id. The count of the complaint alleging bad faith was accordingly dismissed.

Our most recent decision on the issue of bad faith was rendered in Cacchiotti v. Material Damage Adjustment Corp., 116 Dauph. 189 (1996). The plaintiff set forth a claim for damages under 75 Pa.C.S. §1797 and 42 Pa.C.S. §8371. In attempting to preserve her cause of action for bad faith after our holding in Signor, supra, the plaintiff contended that the defendant failed to adhere to insurance department regulations and follow the appropriate standard when referring her medical bills to a PRO. The plaintiff argued that a prudent person, familiar with the PRO procedures, standards, and practices, would not have believed it necessary to submit her expenses to a PRO to determine the reasonableness or necessity of her care. Notwithstanding the plaintiff’s detailed allegations of what occurred before her bills were referred to a PRO, her claim for bad faith was dismissed. Cacchiotti, supra, 116 Dauph. at 193. After clearing away the haze, we found that the plaintiff was asserting that the act of submitting the bills to a PRO constituted bad faith. Id.

Based on the foregoing line of decisions, we find that plaintiff failed to establish a claim of bad faith against Nationwide. In light of this authority, we are hard-pressed to understand why we need to visit this issue again. We hope that the position of this court on whether the act of requesting a peer review evaluation is an act of bad faith is finally understood.

Accordingly, the following is entered:

ORDER

And now, January 9, 1998, it is hereby ordered that the defendant’s preliminary objections are granted and the complaint is dismissed.

      . Barnum, supra, was reversed and remanded for proceedings consistent with the Pennsylvania Supreme Court’s decision in Terminato v. Pennsylvania National Insurance Co., 538 Pa. 60, 645 A.2d 1287 (1994) on the issue of whether a party must seek reconsideration of a peer review decision prior to initiating an action in the courts.

      . The law firm, which represented the plaintiff in Herd, also represents the plaintiff in the instant action. Thus, we find it interesting that the complaint at issue contains an allegation that is substantially similar to an allegation included in the Herd complaint.
      The relevant paragraph in Herd reads:
      “(17) Plaintiff John Herd maintains that defendant Nationwide Insurance Company conducted a sham peer review solely for the purpose of intimidating him from seeking further treatment which he felt to be medically necessary and appropriate and which his treating chiropractor had recommended . . . .”
      The relevant paragraph in the instant action reads:
      “(20) Plaintiff Albert E. Grissinger Jr. maintains defendant Nationwide conducted sham peer reviews solely for the purpose of intimidating him from seeking further treatment which he felt to be medically necessary and appropriate and which his treating physician recommended.”


author: REILLY, P.J.,

text:
    Sutika v. Erie Insurance Co.

      C.P. of Clearfield County,
    no. 93-71-CD.

      Arthur Cutruzzula, for plaintiff.

      Robert Hanak, for defendant.
    December 18, 1998
   REILLY, P.J.,

The above-captioned civil action arises out of a motor vehicle accident. On August 2,1987,4-year-old Jennifer Sutika was killed in a single vehicle accident in Penn Township Clearfield County. This underinsured motorist case was decided by arbitrators. Upon praecipe submitted on behalf of Michael Sutika, plaintiff, the prothonotary subsequently entered a judgment of $250,000 plus interest and costs against Erie Insurance Company/Erie Insurance Exchange, defendant. Defendant filed a petition to open and/or modify judgment and maintains that it is only liable for $200,000, the amount of the policy limits. Plaintiff’s position is basically that the judgment has been rendered and the amount of coverage is not an issue. Oral argument on the motion was held on November 3, 1998, before the undersigned.

The vehicle involved in the accident was an AMC Eagle operated by Sandy Verrelli and insured by the Horace Mann Insurance Company. Plaintiff settled with Horace Mann Insurance Company for $100,000, the liability policy limits. Plaintiff also settled a products Lability claim against Chrysler/AMC for $250,000.

The matter against the defendant based on the plaintiff’s policy went to arbitration. The arbitrators were not asked to find a specific amount of underinsured motorist coverage, and there was no stipulation conceming it. Further, the award is silent as to under-insurance coverage. The arbitrators’ decision was signed on December 18, 1992. In the award, the arbitrators found Verrelli negligent and set the plaintiff’s damages at $500,000. A deduction in the amount of $100,000 was deemed proper to account for the money paid under the Verrelli insurance policy with Horace Mann. Two of the three arbitrators held that the $250,000 paid by Chrysler/AMC should not be deducted from the award.

Defendant filed an appeal from insurance arbitration award with this court under the Uniform Arbitration Act of 1980, 42 Pa.C.S. §§7301-7320, on January 18, 1993. Defendant argued that the failure to allow credit for the settlement with Chrysler/AMC resulted in an error of law. The appeal was denied by this court on December 17,1993. The prothonotary entered judgment against defendant on February 17, 1994, and judgment was mailed to defendant on February 23, 1994. An appeal was filed with the Superior Court by the defendant, which the defendant voluntarily discontinued.

On June 10, 1994, defendant filed a petition to open and/or modify judgment complaining that the judgment was an amount greater than the legal obligation set forth by the policy. In lieu of an evidentiary hearing, the parties filed a stipulation of facts.

It is disputed between the parties whether two or three vehicles are covered for the purpose of stacking. On the declaration sheet, three automobiles were listed; a 1984 Pontiac, a 1980 Chevrolet pickup, and a 1977 Starcraft camper. It is undisputed that the unstacked coverage is $100,000, and the stacked coverage is $100,000 multiplied by the vehicles to be stacked. Defendant’s position is that premiums were paid for underinsurance coverage on only two vehicles.

The purpose of arbitration is to expeditiously and inexpensively resolve disputes. Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 116, 299 A.2d 585, 589 (1973). In order to prevent arbitration from being “merely an unnecessary step in the course of litigation, causing delay and expense, but settling nothing finally,” judicial review of an arbitration award is severely circumscribed. Id. at 114 n.4, 299 A.2d 589 n.4.

The terms of the insurance policy control what issues are to be decided by arbitration and procedures to be utilized. Prudential Property and Casualty Insurance Co. v. Pont, 489 F. Supp. 9, 12 (D.C. Pa. 1979). According to the terms of the plaintiff’s insurance policy, “[disagreement over the legal right to recover damages or the amount of damages will be settled by arbitration.” The policy’s automobile endorsement further states that “arbitration will follow the statutory arbitration provisions of the Pennsylvania Uniform Arbitration Act (42 Pa.C.S. §§7301 through 7320).”

Under the Uniform Arbitration Act, an application to the arbitrators for the purpose of modifying, correcting or clarifying an award must be made within 10 days after delivery of the award to applicant. 42 Pa.C.S. §7311. In order to vacate an arbitration award, it is necessary to challenge the award within 30 days after delivery of a copy of the award to the applicant. 42 Pa.C.S. §7314(b).

The statutory provision regarding change of an award by arbitrators provides:

“(a) General rule. — On application of a party to the arbitrators, or on submission to the arbitrators by the court under such conditions as the court may order if an application to the court is pending under section 7313 (relating to confirmation of award by court), section 7314 (relating to vacating award by court) or section 7315 (relating to modification or correction of award by court), the arbitrators may modify or correct the award upon the grounds stated in section 7315(a)(1) and (2), or for the purpose of clarifying the award.” 42 Pa.C.S. §7311.

Modification or correction of award by court, section 7315, states:

“(a) General rule. — On application to the court made within 30 days after delivery of a copy of the award to the applicant, the court shall modify or correct the award where:
“(1) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
“(2) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted.” 42 Pa.C.S. §7315.

Further, the Superior Court in McIntosh v. State Farm Fire and Casualty Company, 425 Pa. Super. 311, 625 A.2d 63 (1993) stated that “the court may within its discretion, resubmit an award for clarification while the petition to confirm is pending” even though State Farm failed to file an application for clarification of the award or a petition to vacate, modify, or correct the award within the time periods provided in the statute. Id. at 315, 625 A.2d at 65. If the court decides to resubmit an arbitration award, “it results not from the action of one of the parties by filing a petition, but through the discretion of the court itself when the award on its face is unclear.” Scheidly v. Travelers Insurance Co., 33 D.&C.4th 193, 197 (1996).

Since defendant discontinued its appeal, it appears to be undisputed that under the applicable provisions of the Uniform Arbitration Act, the arbitrators’ award will not be vacated based on an allegation that the award was contrary to law. Cigna Insurance Co. v. Squires, 427 Pa. Super. 206, 628 A.2d 899 (1993), alloc. denied, 537 Pa. 638, 644 A.2d 161 (1994). In Boyce v. St. Paul Property and Liability Insurance Co., 421 Pa. Super. 582, 618 A.2d 962 (1992), the appellant claimed that the arbitration award was excessive, without alleging a ground found in the statute. Id. at 594, 618 A.2d at 968. The court held that alleging an excessive award is not “a sufficient basis to vacate the award.” Boyce, 421 Pa. Super, at 594, 618 A.2d at 968. “[U]nless restricted by the agreement of submission, arbitrators are the final judges of both law and fact.” Messa v. State Farm Insurance Co., 433 Pa. Super. 594, 599, 641 A.2d 1167, 1169 (1994) (citing Brennan v. General Accident Fire and Life Assurance Corp. Ltd., 524 Pa. 542, 550, 574 A.2d 580, 583 (1990)).

The federal courts, interpreting Pennsylvania state law, have been divided as to whether policy coverage is an issue for the courts or the arbitrators. Nationwide Insurance Co. of Columbus, Ohio v. Patterson, 953 F.2d 44, 47 (C.A.3 (Pa.) 1991). The majority of district court decisions addressing this issue have held that “questions concerning the extent of coverage under an insurance policy are within the scope of an arbitration clause unless there is language in the clause that explicitly excludes coverage issues from the scope of arbitration.” Id. (citations omitted) Therefore, under Pennsylvania law, a clause in an insurance policy calling for arbitration of disputes concerning “amount of damages” encompasses decisions about the maximum amount of coverage available under the policy; if insurer had wished to exclude questions of coverage from scope of arbitration, it could have specifically done so. Aetna Casualty & Surety Co. v. Hameen, 758 F. Supp. 1049 (E.D. Pa. 1990).

Case law is also somewhat unsettled on the issue of whether underinsured motorist insurance benefits may be stacked under Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §§1701-1799.7, to allow recovery in excess of the liability limits. Boling v. Aetna Casualty and Surety Co., 12 D.&C.4th 36 (1991). However, “Pennsylvania appellate courts over the past two decades have consistently permitted the stacking of uninsured and underinsured motorists benefits” and “there is no language within the Motor Vehicle Financial Responsibility Law excluding the stacking of underinsured coverage.” Id. at 39. In addition, this issue is one that interprets the law (i.e. MVFRL).

Where an arbitration award was made and not appealed, the obligation became fixed. Browne v. Na tionwide Mutual Insurance Co., 713 A.2d 663, 665 (Pa. Super. 1998). In dealing with interest, the Superior Court stated, “[w]hile the obligation to that point may have been capped by policy limits, once the award was established, it becomes as any other judgment covered by section 8101; it is not removed from the general law calling for interest, applicable to all debtors, simply because the obligor is an insurer.” Id. When examining whether an obligation is limited, it is necessary to look at the contract. Id. Post-award interest may accrue on a final arbitration award to an amount exceeding the liability limitations set forth in the contract. Browne, 713 A.2d at 664.

In conclusion, the insurance policy has been thoroughly examined. The provisions do not limit the arbitrators’ decision, and apparently no such instruction was given to them. It specifically states that the Uniform Arbitration Act will be applicable, and defendant concedes that it did not follow the procedure outlined therein for challenging the arbitrators’ award. Further, defendant has not alleged any ground for this court to alter the arbitration award. Although both parties presented persuasive arguments and case law, this court finds the position taken by the plaintiff to be more compelling.

Wherefore, the court enters the following:

ORDER

Now, December 18, 1998, based on the foregoing opinion, it is the order of this court that the petition of Erie Insurance Company/Erie Insurance Exchange for an order opening and/or modifying the arbitration award rendered on December 18,1992, is hereby denied.

      . The attorneys for both parties signed a stipulation of facts, which was filed September 12, 1996. See paragraph 11 therein.

      . Stipulation of facts, exhibit A.

      . The arbitrators found that $100,000 of the award was to be paid under the wrongful death action, and the remainder paid under the survival action. Id.

      . Stipulation of facts, paragraph 21.

      . Stipulation of facts, exhibit B.

      . Stipulation of facts, exhibit L.


author: BERNSTEIN, J.,

text:
    Fields v. Samhouri

      Eric G. Zajac, for plaintiff.

      Bart C. Tuttle and Maura K. Nolan, for defendant.
    February 4, 1999
   BERNSTEIN, J.,

Plaintiff Gloria Fields filed this medical malpractice action against defendant Farouq A. Samhouri M.D. on April 3, 1995, alleging that defendant was negligent in plaintiff’s medical care. On February 7,1996, defendant filed a motion for summary judgment because plaintiff had not produced any expert report critical of defendant before the court-ordered deadline for the production of such reports, December 2, 1996. Plaintiff responded by asserting that they timely produced the expert reports of Murray K. Dalinka M.D., and Richard G. Schmidt M.D., which criticized defendant Samhouri by implication through the claim that plaintiff’s mass was improperly imaged. The court denied defendant’s motion on March 12, 1997. On April 21, 1997, plaintiff produced an additional expert report of Ernest Austin M.D. Dr. Austin explicitly concluded that defendant deviated from the standard of care by failing to properly interpret clinical findings and failing to obtain clinical correlation of radiographic findings. Defendant subsequently filed a motion to preclude the untimely expert opinion of Ernest Austin M.D., which was denied.

Trial began on August 18,1997. On August 22,1997, a jury returned a verdict for plaintiff and against defendant in the amount of $150,000. Defendant timely filed a motion for post-trial relief. On September 15, 1997, the court entered an order granting delay damages to plaintiff in the amount of $19,038.78, molding the verdict to $169,038.78. Post-trial motions were argued on July 2, 1998. Because Dr. Austin testified in court beyond any fair scope of his pretrial expert report, the court granted defendant’s motion for post-trial relief and ordered a new trial on October 16, 1998. From this order, plaintiff timely appealed.

Plaintiff claims on appeal that this court erred in granting defendant’s motion. Plaintiff claims that Dr. Austin’s testimony was within the fair scope of his report. For the following reasons, the court’s ruling was proper and should be affirmed.

The following facts are undisputed. In February 1993, plaintiff noticed a small lump on her lower left ankle and reported it to her treating physician, Dr. John Eshleman. Following an inconclusive MRI in September 1993, Dr. Eshleman referred plaintiff to defendant Sam-houri, a vascular surgeon. Defendant conducted an arterial Doppler test on plaintiff’s leg, which revealed a blockage in her arteries and poor blood circulation. In November 1993, a second MRI showed that the mass in her leg was enlarging. While plaintiff was treating with Dr. Maro, who was not named as a defendant in this lawsuit, a biopsy revealed cancer in plaintiff’s left leg. In July 1994, plaintiff’s lower left leg was amputated.

After the court denied defendant’s motion for summary judgment based upon the reports of Drs. Dalinka and Schmidt and well after the expert report deadline had passed, plaintiff submitted the expert report of Dr. Ernest Austin. In his report, Dr. Austin concluded that defendant deviated from the standard of care in his treatment of plaintiff. His report identified the deviation as follows:

“It is my opinion, given to a reasonable degree of medical certainty, that Dr. Samhouris’s [sic] failure properly to interpret and pursue clinical findings and his failure to obtain clinical correlation of radiographic findings on Mrs. Fields’s [sic] tumor directly led to the failure to diagnose and treat this tumor in October and/or November of 1993 and increased the risk of harm to Mrs. Fields.”

No other deviation was identified in the report. Immediately prior to trial, defendant made an oral motion to preclude the testimony of Dr. Austin, which the court denied.

At trial, Dr. Austin testified that defendant deviated from the standard of care, presenting entirely new theories that were neither mentioned nor hinted at in his pretrial report. Defense counsel repeatedly objected to this testimony on the grounds that Dr. Austin’s testimony was beyond the fair scope of his pretrial report. Defendant’s objections were overruled. Dr. Austin stated at trial that defendant was negligent in failing to give a definitive diagnosis when tests showed enlargement of the lesion. Dr. Austin then testified over objection, entirely beyond his report, that defendant’s failure to perform a biopsy was below the standard of care:

“Mr. Troiani: Doctor, can you tell the jury why this is specifically below the standard of care?
“The Witness: Well, any time there’s a swelling or a mass that cannot be defined, it’s accepted medical practice to biopsy this lesion ...
“Mr. Tuttle: Objection, your honor. Move to strike.
“The Court: Overruled. Continue.
“The Witness: to find out exactly what the problem is.
“Mr. Troiani: And did Dr. Samhouri, from the review of your documents concerning Mrs. Fields, do a biopsy?
“The Witness: No.
“Mr. Troiani: And was that failure to do a biopsy below the standard of care, in your opinion, doctor?
“Mr.Tuttle: Objection, your honor.
“The Court: Overruled.
“The Witness: Yes. . . .
“Mr. Troiani: Doctor, did the vascular problems of Mrs. Fields pose any problem, in your opinion, with respect to doing a biopsy?
“Mr. Tuttle: Objection, your honor. Beyond the scope.
“The Court: Overruled.
“The Witness: Realizing that there was evidence, by various studies, that the patient had vascular problems, particular care should have been taken in obtaining a specimen to determine what the pathology is in that leg.”

Finally, Dr. Austin testified: “There’s no indication, in any of the records that I reviewed, that prohibited an attempt at salvaging her leg.”

None of these assertions were mentioned or in any way implied in Dr. Austin’s pretrial report. As a result, defendant could not possibly have anticipated that Dr. Austin had formed or would express the opinion that the failure to order a biopsy was any basis for liability. Defendant had no expert witness available in court to rebut this new theory. In fact, defendant’s previously retained expert, Dr. Michael Weingarten M.D., had given a trial deposition the day before trial commenced. Consequently, Dr. Weingarten had no opportunity to challenge the new conclusions that Dr. Austin introduced into the case for the first time from the witness stand.

It is long and well established that an expert may not testify beyond the fair scope of his pretrial report. Pennsylvania Rule of Civil Procedure 4003.5(c), adopted in 1978, provides that an expert’s “direct testimony at the trial may not be inconsistent with or go beyond the fair scope of his testimony in the discovery proceedings as set forth in his deposition, answer to an interrogatory, separate report, or supplement thereto.” The purpose of this requirement is “to insure that [the] expert’s report will be sufficiently comprehensive and detailed to inform an opposing party of the expert’s testimony at trial.” The report establishes the appropriate subject matter boundaries within which an expert may testify. More importantly, Rule 4003.5 serves to avoid unfair surprise and prevent “trial by ambush.”

The Superior Court set forth the proper standard for a trial court in Wilkes-Barre Iron & Wire Works Inc. v. Pargas of Wilkes-Barre Inc. To determine whether an expert’s testimony is within the fair scope of his pretrial report, the court must decide: “whether, under the particular facts and circumstances of the case, the discrepancy between the expert’s pretrial report and his trial testimony is of a nature which would prevent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the appropriate response.”

The court should also consider “whether there has been surprise or prejudice to the party which is opposing the proffered testimony of the expert. . . .” The facts of this case are the clearest example of the evils Rule 4003.5 intends to prohibit. Dr. Austin introduced new theories of negligence at trial after misleading the defense into preparing and videotaping its expert on entirely different theories.

Dr. Austin’s report identified precise reasons for his opinion that defendant’s care and treatment of plaintiff was below the standard of care — namely, defendant’s “failure properly to interpret and pursue clinical findings” and “his failure to obtain clinical correlation of radiographic findings on Mrs. Fields’s [sic] tumor.” During direct examination, however, Dr. Austin testified in detail concerning deviations that were totally absent from his report. Dr. Austin’s report does not mention anything about the performance of a biopsy, the growth of the lesion, the effect of plaintiff’s vascular condition, or whether plaintiff’s leg could have been salvaged.

Two recent Superior Court decisions addressing, this issue have approved the preclusion of expert testimony. In Walsh v. Kubiak, the defendant sought to introduce expert testimony concerning the medical necessity of surgery. The pretrial report, however, merely described the defendant’s surgical technique and stated that he did not perform the surgery negligently. The report did not question the medical necessity of the surgery. Because the opinions contained in the report discussed only the negligent performance of the surgery, the trial court precluded testimony concerning medical necessity. Affirming the trial court’s ruling that the expert’s proposed testimony concerning the necessity of surgery was beyond the scope of his report, the Superior Court stated:

“Because nothing in the report would have lead [sic] Walsh to anticipate that Dr. Murtagh had formed or would express the opinion at trial that the surgery was in fact necessary, the report lacked sufficient comprehensiveness and detail to inform Walsh of the defense’s expert testimony.”

The Superior Court further held that the expert’s proposed testimony was prejudicial because the opposing party “would not have been able, based upon the report, to anticipate such testimony and adequately prepare to cross-examine” the expert The opposing party: “had no expert witness available to listen to and observe the testimony of the defense’s expert in order to assist Walsh’s counsel in challenging Dr. Murtagh’s opinion on cross-examination and in preparing a proper rebuttal.”

Similarly, in Jones v. Constantino, the expert’s two pretrial reports contained “only conclusory statements and general, unsupported opinions in describing why the accident occurred without negligence.” At trial, however, the expert “provided an in-depth theory of how the accident occurred without negligence.” The Superior Court recognized that an expert may not “make a bald assertion of non-negligence in his expert report and then proffer an in-depth theory explaining absence of culpability at trial . . . .” In holding that the expert’s testimony was beyond the fair scope of his pretrial report, the Superior Court stated:

“We do not think that a pretrial separate report of an expert is in comport with Rule 4003.5 where it fails to apprise the opposing party of the basis for the expert’s ultimate conclusion.”

In this case, Dr. Austin’s report contained broad, conclusory statements and failed to state any real basis for his ultimate conclusion that defendant deviated from the standard of care. Likewise, his report failed to state what defendant should have done to comply with the standard of care. Dr. Austin’s testimony was obviously prejudicial to defendant’s case. Of course defendant was unprepared to challenge Dr. Austin’s new theories of negligence on cross-examination. Of course the defense had no ability to present any rebuttal witness. Because defendant’s expert, Dr. Weingarten, testified via videotape deposition before Dr. Austin took the witness stand, he also had no opportunity to rebut Dr. Austin’s new theory. Dr. Austin’s attempt to completely change the basis of his expert opinion at trial was a clear violation of Rule 4003.5.

For the foregoing reasons, Dr. Austin’s testimony concerning defendant’s deviation from the standard of care was well beyond any fair scope of his pretrial report and prejudicial to defendant. Accordingly, the court properly granted defendant’s motion for post-trial relief and ordered a new trial.

      . Neither Dr. Weingarten nor Dr. Schmidt testified for plaintiff at trial.

      . N.T., 8/19/97, at 253.

      . N.T., 8/19/97, at 269.

      . N.T., 8/18/97, at 54.

      . N.T., 8/18/97, at 56.

      . Affidavit of Dr. Ernest Austin M.D., April 21, 1997.

      . N.T., 8/18/97, at 13.

      . N.T., 8/19/97, at 152-53.

      . N.T., 8/19/97, at 153-54.

      . N.T., 8/19/97, at 155.

      . N.T., 8/19/97, at 157. The actual claims presented in Dr. Austin’s report were not presented at trial.

      . Defendant presented the testimony of its expert, Dr. Michael Weingarten M.D., via videotape. Dr. Weingarten’s deposition was taken prior to Dr. Austin’s testimony at trial. Dr. Weingarten concluded that defendant’s treatment of plaintiff was within the accepted standard of care.

      . Pa.R.C.P. 4003.5(c).

      . Havasy v. Resnick, 415 Pa. Super. 480, 492, 609 A.2d 1326, 1331 (1992), appeal dismissed, 537 Pa. 114, 641 A.2d 580 (1994).

      . Walsh v. Kubiak, 443 Pa. Super. 284, 291, 661 A.2d 416, 420 (1995), allocatur denied, 543 Pa. 716, 672 A.2d 309 (1996).

      . 348 Pa. Super. 285, 502 A.2d 210 (1985).

      . Id., 348 Pa. Super, at 290, 502 A.2d at 213.

      . Walsh, 443 Pa. Super, at 293, 661 A.2d at 420. See also, Pascale v. Hechinger Company of Pa., 426 Pa. Super. 426, 435, 627 A.2d 750, 754 (1993) (noting avoidance of unfair surprise concerning facts and substance of expert’s proposed testimony is primary purpose of rule requiring that testimony be within fair scope of report).

      . Affidavit of Dr. Ernest Austin M.D., April 21, 1997.

      . 443 Pa. Super. 284, 661 A.2d 416 (1995), allocatur denied, 543 Pa. 716, 672 A.2d 309 (1996).

      . Id. at 293, 661 A.2d at 421.

      . Id. at 293-94, 661 A.2d at 421.

      . Id. at 294, 661 A.2d at 421.

      . 429 Pa. Super. 73, 84-86, 631 A.2d 1289, 1295-96 (1993), allocatur denied, 538 Pa. 671, 649 A.2d 673 (1994).

      . Id. at 86, 631 A.2d at 1296.


author: WETTICK, J.,

text:
    Ehrman v. Mid-American Waste Systems of Pa. Inc.

      C.P. of Allegheny County,
    no. GD96-18035.

      Roger L. Wise, for plaintiffs.

      John W. Zotter, for defendants.
    December 14, 1998
   WETTICK, J.,

This is a wrongful death and survival action arising out of the death of a 19-year-old girl (Heather Ehrman) in a traffic accident caused by defendants’ negligence. Heather was unmarried and had no children or siblings. She was survived by both parents. The wrongful death count includes claims for damages from the loss of aid, companionship, and services that the deceased would have furnished her parents.

The subject of this opinion and order of court is defendants’ motion for partial judgment on the pleadings. Defendants contend that a wrongful death claim may not include a damage award to a parent for the loss of aid, companionship, and services that an adult child would have provided.

In this case, Heather’s parents are not contending that Heather had been providing financial support to her parents or furnishing specific services upon which her parents relied. They base their loss of aid-companionship-services claim on the following testimony that they will offer at trial:

Heather, an only child, was very involved in her parents’ lives. She had a helping and caring personality and her relationship with her parents had been one of closeness, love and assistance. Consequently, as her parents aged, she would have begun to perform household chores for her parents. In times of illness, she would have transported her parents to the doctor and provided nursing care and living assistance. Her parents would have received loving care from a child rather than care offered by a stranger. She would have provided financial assistance if her parents experienced any financial difficulties. Under powers of attorney she would have managed her parents’ lives and affairs if they were no longer able to do so.

Counsel for plaintiffs recognizes that settled Pennsylvania appellate court case law limits loss of consortium claims to spouses. When a parent is injured, a child may not bring a loss of consortium claim against the tort-feasor to recover damages for loss of the services, aid, and companionship that the parent would have otherwise provided. Schroeder v. Ear, Nose and Throat Associates of Lehigh Valley Inc., 383 Pa. Super. 440, 557 A.2d 21 (1989); Steiner by Steiner v. Bell Telephone Co., 358 Pa. Super. 505, 517 A.2d 1348 (1986), aff’d per curiam, 518 Pa. 57, 540 A.2d 266 (1988); Wapner v. Somers, 428 Pa. Super. 187, 630 A.2d 885 (1993). When an adult child is injured, a parent may not bring a loss of consortium claim against the tort-feasor to recover damages for loss of the services, aid, and companionship that the child would have otherwise provided.

In Brower v. City of Philadelphia, 124 Pa. Commw. 586, 557 A.2d 48 (1989), the parents of a 19-year-old child who was rendered a quadriplegic as the result of the defendants’ alleged negligence raised a claim for past and future medical expenses; loss of their son’s services; and loss of their son’s comfort, society, and companionship. Through a motion for summary judgment, the Philadelphia Court of Common Pleas dismissed these claims. On appeal, the Commonwealth Court affirmed. With respect to the parents’ claims for loss of their son’s services and loss of their son’s comfort, society, and companionship, the court stated that Pennsylvania appellate courts continue to follow the 1914 ruling of the Pennsylvania Supreme Court in Quinn v. Pittsburgh, 243 Pa. 521, 90 A. 353 (1914), that a parent may not recover damages for loss of consortium of a child. In response to the plaintiffs’ contention that the Commonwealth Court should abandon the common-law rule laid down in Quinn and its progeny and join the ranks of other “forward looking jurisdictions,” which allow claims for loss of a child’s comfort, society, and companionship, the court stated that most other states have refused to allow a claim for loss of filial consortium and that “even if we were to create a new cause of action in Pennsylvania for loss of filial consortium, such cause of action would not be applicable here, because Brian is an adult.” Brower v. City of Philadelphia, supra at 594, 557 A.2d at 50-51.

In the present case, plaintiffs are not asking that I make a ruling which calls into question the appellate court case law upon which defendants rely based on a reexamination of the soundness of Pennsylvania policy that limits claims for loss of consortium to spouses. Instead, plaintiffs make a very narrow argument.

Loss of consortium is a common-law doctrine. The common-law doctrine which the Pennsylvania appellate courts have created does not recognize a loss of consortium claim for the loss of a child’s services, aid, and companionship. Consequently, if the 19-year-old child in this case had been rendered a quadriplegic, her parents could not sue for these losses.

However, the present proceedings involve a wrongful death action. Wrongful death is not a creature of the common law; recovery is governed by statute. Incollingo v. Ewing, 444 Pa. 263, 295-96, 282 A.2d 206, 226 (1971). Consequently, the case law governing a common-law loss of consortium claim does not govern this lawsuit. Instead, plaintiffs’ claim is governed by the language of the Wrongful Death Act and case law construing this legislation.

Under 42 Pa.C.S. §8301(b), a wrongful death action may be brought for the benefit of parents of the deceased. Under 42 Pa.C.S. §8301(c), the plaintiff in a wrongful death action is entitled to recover “in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.” (emphasis added) Plaintiffs contend that the words “other damages” include the loss of services, aid, and companionship.

The parties’ briefs did not cite and our research did not locate any appellate case law that has addressed the statutory language in deciding whether the plaintiff in a wrongful death action may recover damages for loss of services, aid, and companionship.

Defendants contend that the Pennsylvania courts use the case law governing the common-law doctrine of loss of consortium in deciding what claims for loss of services-aid-companionship claims may be raised in a wrongful death action and that the Pennsylvania Superior Court has ruled that a parent may not raise these claims in a wrongful death action.

In Jackson v. Tastykake Inc., 437 Pa. Super. 34, 648 A.2d 1214 (1994), parents brought a wrongful death action based on the death of a child born prematurely who lived for only 10 hours. The Pennsylvania Superior Court sustained the defendant’s preliminary objections seeking dismissal of the plaintiffs’ claims for loss of companionship, comfort, and society. It supported its ruling by relying on its decision in McCaskill v. Philadelphia Housing Authority, 419 Pa. Super. 313, 318-19, 615 A.2d 382, 384-85 (1992), where it stated:

“While McCaskill recognizes that claims for the loss of filial consortium have never been recognized in this jurisdiction, she urges this court to abandon the established common law and grant her recovery on this claim. We decline to do so.

“In Quinn v. City of Pittsburgh, 243 Pa. 521, 90 A. 353 (1914), our Supreme Court stated that claims for loss of consortium are limited to spouses and do not extend to the loss of a child’s consortium. This rule has remained undisturbed as the law of this jurisdiction. See e.g., Schroeder v. Ear, Nose and Throat Associates, 383 Pa. Super. 440, 557 A.2d 21 (1989), appeal denied, 523 Pa. 650, 567 A.2d 653 (1989); Brower by Brower v. City of Philadelphia, 124 Pa. Commw. 586, 557 A.2d 48 (1989), appeal denied, 525 Pa. 604, 575 A.2d 569 (1990).

“In Schroeder, the appellants were the parents of a fetus which was aborted during the course of medical treatment for the mother. There, holding that the appellants had put forth no cause of action we stated:
We conclude that because there is no constitutional mandate compelling us to recognize a cause of action for loss of filial consortium, . . . because there is no general or growing consensus that such a cause of action should be established, and because to allow such a cause of action is a policy determination which can most thoroughly and representatively be considered by the legislature, we do not recognize a parent’s cause of action for loss of a child’s consortium due to tortious interference of a third party.’
“Id., 124 Pa. Commw. at 444-45, 557 A.2d at 23, paraphrasing Steiner by Steiner v. Bell Telephone Co., 358 Pa. Super. 505, 522, 517 A.2d 1348, 1357 (1986), aff’d, 518 Pa. 57, 540 A.2d 266 (1988).
“As an intermediate appellate court, we will not recognize this cause of action where there is clear and binding precedent to the contrary. Quinn, supra.”

Plaintiffs contend that the Jackson case is not controlling because in Jackson the parents were raising a separate cause of action in their own right for loss of filial consortium rather than a claim for “other damages” under the wrongful death action. I have difficulty accepting this contention because if the Pennsylvania Superior Court was addressing the issue of whether parents may maintain a separate cause of action for loss of consortium, it would have relied on Linebaugh v. Lehr, 351 Pa. Super. 135, 505 A.2d 303 (1996), where the court held that a surviving spouse may not maintain a separate cause of action for loss of consortium in addition to an action brought on behalf of the deceased spouse under the Wrongful Death Act.

While I conclude that the Pennsylvania Superior Court was addressing the right of a parent to recover the value of the loss of services, aid, and companionship in a wrongful death action, it appears that the court simply assumed that the case law governing loss of consortium claims in personal injury actions governs wrongful death claims. The cases which the court cited {Quinn, Schroeder, Brower by Brower, McCaskill, and Steiner by Steiner) did not involve lawsuits instituted on behalf of plaintiffs entitled to maintain a wrongful death action. Quinn was a lawsuit brought by the mother of an injured child; Schroeder involved a loss of parental consortium claim arising from a claim of failure to diagnose Hodgkin’s disease, resulting in extensive surgical and other treatment of the child’s mother including the termination of a pregnancy; Brower involved a claim on behalf of the parents of a 19-year-old who was rendered quadriplegic; McCaskill involved a claim by a parent for loss of a 17-week-old fetus which was not viable; and Steiner by Steiner involved an action by a child for loss of parental consortium where the parent was injured.

While there is no case law which directly holds that the parents of an adult child may recover for loss of future services, the case law describing a wrongful death action frequently states that the parents are entitled to recover the loss of the value of the services that the child would have rendered.

In Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994), the parents of an 18-year-old passenger killed in an automobile driven by a drunk driver brought a wrongful death and survival action against the driver who joined the host of the reception at which alcohol was served. The jury returned a verdict in the amount of $25,000. The Superior Court vacated the award on the ground that it was inadequate. The Supreme Court affirmed.

The Supreme Court’s opinion stated that the jury verdict had no rational relationship to the uncontroverted testimony of the plaintiffs’ expert witness that the loss of services to the family resulting from the child’s death would be from $11,862.50 to $18,980 and that the net economic loss resulting from her death ranged from $232,400 to $756,081. In his opinion, Justice Montemuro, writing for the court, stated:

“Wrongful death damages are established for the purpose of compensating the spouse, children, or parents of a deceased for pecuniary loss they have sustained as a result of the death of the decedent.... The damages recoverable in a wrongful death action include the present value of the services the deceased would have rendered to the family, had she lived, as well as funeral and medical expenses. Burkett [v. George], 118 Pa. Commw. [543] at 546, 545 A.2d [985] at 987 [(Pa. Commw. 1988)]; Heffner v. Allstate Ins. Co., 265 Pa. Super. 181, 190, 401 A.2d 1160, 1164 (1979).” 538 Pa. at 226, 648 A.2d at 4. (emphasis added) (citations omitted)

In Mecca v. Lukasik, 366 Pa. Super. 149, 530 A.2d 1334 (1987), parents brought wrongful death and survival actions arising out of the deaths of their teenage children. Each plaintiff was awarded damages of approximately $1 million under the Survival Act and approximately $2.5 million under the wrongful death action. The defendants contended that the awards were excessive. The court rejected the contention, stating that it could not find that its sense of justice was shocked by the verdicts. In its opinion, the court stated:

“Damages for wrongful death are the loss of decedent’s life and the loss to his or her family. Slaseman v. Myers, 309 Pa. Super. 537, 455 A.2d 1213 (1983). The measure of damages in survival actions is the decedent’s pain and suffering and loss of gross earning power from the date of injury until death, and loss of earning power, from time of death through his estimated working life-span.” 366 Pa. Super, at 163, 530 A.2d at 1341.

I agree with plaintiffs that the wrongful death award was excessive as a matter of law unless a wrongful death award may include damages for loss of future services that the children would have rendered to their parents.

In Quinn v. PennDOT, 1998 W.L. 667423 (Pa. Commw. 1998), wrongful death and survival actions included claims for loss of services that the deceased father would have rendered to his unborn child. The jury awarded $100,000 for the child’s loss of these services. Upon appeal, the Commonwealth, citing loss of consortium case law, argued that claims for loss of consortium are limited to spouses. The case law should bar the claims of the child; otherwise the child will be permitted to raise claims in a wrongful death action that could not have been raised if the father was simply disabled. The court ruled that the child was entitled to recover because the loss of services were not awarded “under a general theory of loss of parental consortium, but as part of the damages that have been held to be recoverable under the Wrongful Death Act.” Id. at 3.

The following cases also support plaintiffs’ position:

In Heffner v. Allstate Insurance Co., 265 Pa. Super. 181, 401 A.2d 1160 (1979), aff’d, 491 Pa. 447, 421 A.2d 629 (1980), the issue that the court addressed was whether under Pennsylvania’s No-Fault Motor Vehicle Insurance Act a widow whose husband had been fatally injured in an auto accident could recover only the survivor’s loss benefit and funeral expenses or whether she was also entitled to receive work loss benefits. In its opinion, the Superior Court considered damages that can be recovered in wrongful death and survival actions in determining how to construe the No-Fault Act. The court stated:

“In a wrongful death action the damages include the present value of the services the victim would have rendered to his family had he lived, as well as his funeral expenses. Swartz v. Smokowitz, 400 Pa. 109, 161 A.2d 330 (1960); Gaydos v. Domabyl, 301 Pa. 523, 533-34, 152 A. 549 (1930). The persons entitled to recover such damages do not include the victim’s estate generally, but the ‘husband, widow, children, or parents of the deceased, and no other relatives.’ ” 265 Pa. Super, at 190, 401 A.2d at 1164. (footnote omitted)

In Walton v. Avco Corporation, 383 Pa. Super. 518, 557 A.2d 372 (1989), the jury awarded $50,000 for loss of services that the decedent would have contributed as a father to his children. The Superior Court upheld the award to the children, stating that under Pennsylvania law a child can recover in a wrongful death action for loss of companionship, comfort, society, and guidance of a parent. Also see Buchecker v. Reading Co., 271 Pa. Super. 35, 57, 412 A.2d 147, 158 (1979); Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549 (1930).

Schofield v. Piper Aircraft Corp., 1988 W.L. 62181 (E.D. Pa. 1988), involved a wrongful death and survival action; it arose out of the death of a 24-year-old child who was survived by his parents. The jury awarded $503,000 in the wrongful death action. The trial court affirmed the ruling on the basis of the evidence describing the deceased’s relationship with his parents and the services and comfort that he provided them. The court stated: “As the jury was instructed, plaintiff was entitled to recover the pecuniary value of the services, society and comfort that decedent would have given to his parents had he lived; but no amount for grief or mental suffering.” Id. at 1. (citations omitted)

In 1930 in Gaydos v. Domabyl, supra, 301 Pa. 523, 152 A. 549, the Pennsylvania Supreme Court set aside a judgment in favor of the plaintiffs on the basis of erroneous jury instructions. Its opinion contained a lengthy discussion of damages that may be awarded in a wrongful death action. The opinion stated that “pecuniary loss ... is broad enough to include the present worth of the value of probable services which would, in the ordinary course of events, be of benefit to one within this class [children, parent, husband or wife],” and that “damages in death cases do not include a claim for mental suffering, grief or distress of mind, . . . nor for the loss of the society or companionship, as such, of children or parents.” Id. at 530-31, 152 A. at 552. (citation omitted)

Both parties cite Slaseman v. Myers, 309 Pa. Super. 537, 455 A.2d 1213 (1983), which contains language supporting both positions. In Slaseman v. Myers, the survivors included a wife and two children (probably adults) living at home. The issue before the court was the plaintiff’s challenge to the sufficiency of the wrongful death and survival awards. Plaintiffs in the present case rely on the following language in the opinion:

“Damages for wrongful death are the value of the decedent’s life to the family, as well as expenses caused to the family by reason of the death. The Wrongful Death Statute, 42 Pa.C.S. §8301 (Purdon Pamp. 1982), compensates the decedent’s survivors for the pecuniary losses they have sustained as a result of the decedent’s death. Sinn v. Burd, 486 Pa. 146, 151 n.3, 404 A.2d 672, 675 n.3 (1979). This includes the value of services the victim would have rendered to his family if he had lived. Heffner v. Allstate Insurance Co., 265 Pa. Super. 181, 401 A.2d 1160 (1979), aff’d, 491 Pa. 447, 421 A.2d 629 (1980).” 309 Pa. Super, at 545, 455 A.2d at 1218.

Defendants rely on the court’s discussion of a wrongful death award in a later portion of the opinion:

“Under the Wrongful Death Act the widow or family is entitled, in addition to costs, to compensation for the loss of the contributions decedent would have made for such items as shelter, food, clothing, medical care, education, entertainment, gifts and recreation. The widow is also entitled to the pecuniary value of the services, society and comfort she would have received from the decedent. Spangler v. Helm’s New York-Pittsburgh Motor Express, 396 Pa. 482, 485, 153 A.2d 490, 492 (1959).” 309 Pa. Super, at 549, 455 A.2d at 1220.

In addition to Jackson v. Tastykake Inc., supra, 437 Pa. Super. 34, 648 A.2d 1214, the following cases support defendants’ position:

In Burkett v. George, supra, 118 Pa. Commw. 543, 545 A.2d 985, the Commonwealth Court considered survival and wrongful death claims arising out of the death of an 18-year-old who had lived at home. The jury awarded wrongful death damages in the amount of $50,000 and did not award any damages in the survival action. The defendants sought a new trial with respect to the wrongful death award, and the plaintiff sought a new trial with respect to the survival action. The trial court set aside the wrongful death award on the ground that the only evidence presented in support of the claim for wrongful death damages was an expenditure of $2,567 for funeral expenses. Hence, the $50,000 wrongful death award bore no relationship to the damages submitted. The Commonwealth Court affirmed, stating that the jury award went beyond mere speculation because the evidence established that the decedent spent most of his income on his own interests and made no regular contributions to his parents.

Bortner v. Gladfelter, 302 Pa. Super. 492, 448 A.2d 1386 (1982), involved a similar fact situation. A wrongful death and survival action was brought on behalf of an 18-year-old who had lived with his parents. The jury determined that the damages in the wrongful death claim were the amount of the funeral expenses ($3,283.70) and awarded no damages in the survival action. The plaintiff sought a new trial. With respect to the wrongful death claim, the court stated that it could not say that the verdict was unreasonable because the evidence was such that the jury could conclude that the decedent’s parents sustained no further pecuniary loss as a consequence of their son’s death. It referred to evidence showing that at the time of his death, the decedent was being supported primarily by his parents, and that his talents and economic resources were such that his future earnings were limited to those of an automobile mechanic, and the likelihood that those earnings would have been shared with his parents was not great.

The court reached the opposite result with respect to the survival action. It ruled that unrefuted credible evidence established net earnings during the decedent’s life expectancy.

In response to the plaintiff’s argument that a new trial should also be granted for the wrongful death action because of the court’s loss of confidence in the jury deliberations with respect to the survival action, the court stated that wrongful death and survival actions seek to enforce distinct causes of action. The award of damages in each must be based upon considerations which are different from those of the other. Since the verdict in the wrongful death action bore a reasonable relation to the evidence and only the verdict in the survival action did not, it could not perceive a good reason for requiring a new trial in the wrongful death action.

In Swartz v. Smokowitz, supra, 400 Pa. 109, 161 A.2d 330 (1960), the Pennsylvania Supreme Court set aside a jury award under the Wrongful Death Act and the Survival Act in a case involving the death of a 16-year-old. In concluding that the wrongful death award was excessive, the court considered only what the child would have earned until age 21 and the funeral and medical expenses.

In Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979), the Pennsylvania Supreme Court, in a footnote, discussed the measure of damages for the death of a minor in a wrongful death claim: The measure of damages “consists of funeral and medical expenses, plus the total earnings which would have been earned by the child up to the age of 21, minus the cost of maintaining the child during this period, with the resulting amount reduced to its present worth. Swartz v. Smokowitz, 400 Pa. 109, 112-13, 161 A.2d 330 (1960).” 486 Pa. at 151-52 n.3, 404 A.2d at 675 n.3.

In Pearsall v. Emhart Industries Inc., 599 F. Supp. 207 (E.D. Pa. 1984), the court stated that absent a strong factual presentation to indicate continued support beyond the age of majority, in an action for the wrongful death of a minor child, parents may recover compensation for services and support only up to the age of majority. Consequently, while it agreed with the defendant’s assertion that it was required to charge the jury that it could not award monetary damages for the expected pecuniary value of the children’s services and emotional support beyond the age of majority, it also concluded that its instructions properly included this limitation.

Chapter 6.10 of the Pennsylvania Suggested Standard Civil Jury Instructions covers damages in death cases. These instructions state that damages recoverable under the Wrongful Death Act include a sum which will fairly and adequately compensate the family of the decedent (wife, children, parents, etc.) for the pecuniary value of the services, society, and comfort that the decedent would have given his or her family if he or she had lived, including such elements as work around the house, provision of physical comforts and services, and provision of society and comfort. The suggested instructions also state that the plaintiff on behalf of the surviving children is entitled to be awarded an amount that will fairly compensate for the loss of services the deceased parent would have contributed to his children.

The subcommittee note to section 6.10 begins with the following statement:

“The measure of damages to be awarded in death cases has been subject to much inadvertent confusion over the years, in part because the statutes providing for the survival of causes of action after death do not speak directly to this issue. For this reason, the courts have been called upon to determine the elements of recovery, with somewhat inconsistent results. Only recently the Supreme Court authored an opinion that did much to eliminate the major inconsistency, that between actions brought before death actually occurs and those brought after death. Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 206 (1971). But because each death action involves a particular situation (i.e. married husband, child, supporting son, wife and/or mother), the appropriate measure of damage common to all death cases is the amount of the funeral bill.” (emphasis added)

The subcommittee note’s discussion of “services” states:

“Services performed for the family have pecuniary value, for which the survivors may seek recovery, regardless of the status of the deceased. As a general rule, pecuniary loss ... is broad enough to include the value of probable services which would, in the ordinary course of events, be of benefit to one within this class [i. e. children, parent, husband or wife]. Gaydos v. Domabyl, supra, 301 Pa. at 530; accord, e.g., Haddigan v. Harkins, 441 F.2d 844 (3d Cir. 1970); McKee v. Jamestown Baking Co., 101 F. Supp. 794, 796 (W.D. Pa.), aff’d, 198 F.2d 551 (3d Cir. 1952).
“The services not only include day-to-day activity, but also ‘companionship, comfort, society, guidance, solace and protection.’ Spangler v. Helm’s New York-Pittsburgh Motor Express, 396 Pa. 482, 485, 153 A.2d 490 (1959); accord Filer v. Filer, 301 Pa. 461, 465-66, 152 A. 567 (1930).”

The cases which the subcommittee note governing services cites do not involve wrongful death claims on behalf of parents arising out of the death of a child. Gaydos involves the death of a parent and the other cases involve the death of a spouse. The cases support the position that damages in a wrongful death action include the present value of the services that the decedent would have rendered to his or her family had he or she lived.

This is not true with respect to the statement that the services include companionship, comfort, society, guidance, solace, and protection. Only the Spangler case supports this statement. 396 Pa. at 485, 153 A.2d at 492. Filer states that a parent’s services are more valuable than the services performed by an ordinary servant because of the parent-child relationship. 301 Pa. at 466, 152 A. at 568. Haddigan criticizes a portion of the trial court’s instruction which stated that the wrongdoer must pay for “loss of companionship, comfort, society, solace and protection,” because this language “has the danger of conveying to the jury the misapprehension that in the wrongful death action the survivors can recover for mental suffering, grief, or loss of companionship.” 441 F.2d at 852. Gaydos states that there cannot be recovery for loss of the society or companionship, as such, of children or parents. 301 Pa. at 530, 152 A. at 552. See p. 247 of this opinion.

I summarize the case law as follows: Each party can find substantial case law supporting that party’s position. There is no explanation in the case law for these divergent views. There, is no effort to reconcile these divergent views. In fact, the case law does not acknowledge the split of authority.

While I find this to be a close call, I am adopting plaintiffs’ position that I should permit the recovery of those damages described by Justice Montemuro in Kiser v. Schulte, supra at 226, 648 A.2d at 4:

“The damages recoverable in a wrongful death action include the present value of the services the deceased would have rendered to the family, had she lived, as well as funeral and medical expense.”

My reasons for doing so are as follows: First, the Kiser discussion is a recent statement of the Pennsylvania Supreme Court. No subsequent opinions of the Pennsylvania appellate courts have considered the impact of this statement on prior case law. The Kiser discussion, while inconsistent with the Pennsylvania Superior Court’s 1994 ruling in Jackson v. Tastykake, supra, is consistent with the Pennsylvania Superior Court’s 1987 ruling in Mecca v. Lukasik, supra.

Second, the case law governing who may raise claims for loss of aid-companionship-services in wrongful death cases does not mirror the case law governing who may assert these claims in personal injury actions. The case law that I discussed at pages 244-47 of this opinion establishes that damages recoverable under the Wrongful Death Act include the loss of companionship, aid, and guidance that a child has sustained from the death of a parent. See Quinn v. PennDOT, supra, where the Commonwealth Court sustained a jury verdict awarding $100,000 for the child’s loss of services as a result of the death of his father. Compare Wapner v. Somers, supra, and cases cited therein, which hold that when a parent is injured, a child may not bring a loss of parental consortium claim for loss of services, society, and companionship.

Since the language of the Wrongful Death Act does not differentiate between spouses, parents, and children but instead allows, on behalf of any person within this group, claims for “in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death,” I do not see how this Act may be construed to allow only spouses and children to raise loss of aid-companionship-services claims. Since the appellate courts are not construing “other damages” to include only those damages recognized in tort law, I do not know of any legal theory that can support the position that parents are barred from recovery of those “other damages” that a child may recover.

Finally, the Pennsylvania Suggested Standard Jury Instructions are consistent with plaintiffs’ position that they are entitled to those damages described in Kiser v. Schulte, supra, and inconsistent with defendants’ position that a wrongful death claim may not include a damage award to a parent for services that a decedent would have rendered to the family had she lived. While these instructions have never been approved by the Supreme Court of Pennsylvania, I am reluctant to construe the law in a manner that is inconsistent with these instructions in the absence of appellate court case law which rather clearly shows that these instructions are incorrect.

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

ORDER

On December 14, 1998, it is hereby ordered that defendants’ motion for partial judgment on the pleadings is denied.

Pretrial conference will be held on January 5, 1999 at 9:30 a.m. o’clock.

      . Defendants have admitted liability. Defendants are not seriously disputing the economic losses described in plaintiffs’ expert report. However, defendants are not willing to pay the substantial sums of money that plaintiffs seek for loss of aid, companionship, and services.

      . Counsel for both parties submitted very thorough and thoughtful briefs that were the product of extensive research. Consequently, I do not believe that they overlooked any case law that controls this issue.

      . In Hudak v. Georgy, 535 Pa. 152, 634 A.2d 600 (1993), the Pennsylvania Supreme Court ruled that a wrongful death action may be maintained whenever there is a live birth.

      .1 recognize that this case and other cases which I will be citing involve claims of a child raised in a wrongful death action arising out of the death of a parent while the present case involves claims of a parent raised in a wrongful death action arising out of the death of a child. Since neither a parent nor a child may bring loss of consortium claims for losses resulting from injuries sustained to a child or a parent, and since plaintiff in the present case cannot prevail without showing that the law recognizes “loss of consortium” damages in a wrongful death action that are not recoverable in a common-law tort action, the case law addressing the claims that a child may raise in a wrongful death action arising out of the death of a parent is relevant.