author: ENDY, S.J.,

text:
    In re Adoption of S.M.D.

      C.P. of Chester County,
    no. A00-0056.

      Ronald F. Brien, for petitioner.

      Lawrence J. Persick, for respondent.

      Lauren G. Buchanan, for child.
    October 2, 2000
   ENDY, S.J.,

Jennifer and Ryan had a non-marital relationship in the early 1990s that produced one child, Shane. Still in their teens, their relationship ended eight months after Shane’s birth. They never shared a household or lived as an intact family. Two years later, Jennifer met Charles, a machinist several years her senior. They began cohabiting in August of 1993 and married the following year. Charles has shared legal custody of his two children from a previous marriage.

Ryan maintained regular visitation with Shane on an informal basis for several years. In Shane’s fourth year, however, Ryan reports that Jennifer refused him further contact with the child without a court order. Ryan pursued his rights in court and obtained an order granting him shared legal custody with visitation every other weekend.

Ryan, now 27, married Stacey in 1995. They have one child together, Alicia. Ryan is a long-distance hauler who has held at least seven jobs in the last nine years. He does not have health insurance at present and has never provided health care coverage to Shane.

Ryan admits that his irregular working hours and frequent absences from home impaired his ability to meet the terms of his court-ordered visitation, although he denies ever missing a scheduled visit. He insists that he would always telephone Jennifer if he were going to be late. Ryan claims Jennifer habitually refused to accommodate his requests for substitute visitation when conflicts arose between his work schedule and custodial time with Shane. Not surprisingly, Charles has a different recollection. Charles remembers Ryan failed to appear many times for his scheduled visitation, leaving Charles and Jennifer the task of explaining Ryan’s absence to his anxious son. Charles maintains that Jennifer offered Ryan flexibility in visitation to no avail.

Beyond his four visitation days per month and occasional vacation with the child, Ryan did not involve himself in Shane’s life. It was Charles who immersed himself in the day to day responsibilities of childrearing. Charles changed Shane’s diapers, fed and bathed Shane, and tucked him into bed each night. Charles took Shane to the doctor and cared for Shane whenever he was sick. When Shane entered elementary school, it was Charles who attended parent-teacher conferences, sporting events, and Shane’s other scholastic and extracurricular activities. Charles even coached some of Shane’s team sports. Ryan appeared one time at Shane’s kindergarten back-to-school night, but nothing else. Ryan blamed the school for failing to provide him with notice of Shane’s progress and activities. He claims that he sent letters to the school requesting information about Shane’s curriculum and grades but he never received any response. In the four-plus years that Shane has been enrolled in elementary school, Ryan admits that he never took any additional steps, such as personally appearing at the school, to rectify the situation.

In the late 1990s, the relationship between the parties grew increasingly tense. Charles described inconsistent visitation between Ryan and Shane and mounting support arrears. Ryan disagreed, although he did admit to falling behind in support for a month or two whenever he switched jobs. The parties did concur about the conflict between Jennifer and Ryan at visitation. Custody transfers would erupt into heated exchanges, leading to police intervention on one occasion. Father’s Day 1999 would prove the last time Ryan was to visit with, or speak to, Shane for the next 14 months.

Ryan does not dispute the characterization that he has a pervasive passivity to his personality. He alleged that he did not try to contact Shane during the summer of 1999 because he wished to avoid a confrontation with Shane’s mother. To his credit, he did send Shane a birthday card. Coincidentally, however, during this period Ryan was negotiating a surrender of his parental rights in exchange for his discharge from financial liability for Shane. Ryan signed a “consent of child’s natural father, [Ryan], to the voluntary relinquishment of all his parental rights to his son, [Shane].” Therein, Ryan set forth his belief that “it is in the best interests of my son ... to be with his mother and stepfather without any further interference from me.” Although not in the statutorily-prescribed form, this document memorialized Ryan’s acquiescence in the termination of his relationship with his son in consideration for forgiveness of support arrears. Ryan did not see Shane, call him, explain to Shane his decision, inquire after his welfare, nor even say goodbye following the execution of his consent. He simply disappeared from Shane’s life.

Charles acknowledges that he and Jennifer did not act quickly upon Ryan’s consent. He explained that they did not feel pressured to initiate proceedings immediately, believing instead that they had unlimited time. Charles stated that he and Jennifer decided they would begin Shane’s adoption at the time of their planned family vacation in July of 2000.

Tragically, Shane lost his mother on June 14, 2000 when she died suddenly of a ruptured aneurysm at the age of 28. At Charles’ request, Ryan did not attend the funeral, but did send Shane flowers. On June 22, 2000, one week after Jennifer’s death, Charles filed a petition to confirm Ryan’s consent to Shane’s adoption. We remanded the petition for defects, including the statutory nonconformity of Ryan’s consent. Around this time, Ryan approached Charles for visitation with Shane, which Charles refused. Ryan then informed Charles that he no longer consented to Shane’s adoption and demanded immediate and permanent custody of the child. Charles responded by filing a petition for involuntary termination of parental rights on July 14, 2000. Ryan counter-sued for custody of Shane on July 20, 2000. Ryan’s complaint for custody has been deferred pending resolution of Charles’ petition for involuntary termination of parental rights.

Preliminarily, we find that Charles has in loco parentis status to pursue a termination of Ryan’s parental rights. In custody disputes, stepparents are treated as third parties vis-a-vis birth parents. Bupp v. Bupp, 718 A.2d 1278, 1281 (Pa. Super. 1998) (custody awarded to mother’s ex-husband, an unrelated third party); Karner v. McMahon, 433 Pa. Super. 290, 640 A.2d 926 (1994) (stepfather held to have in loco parentis status in custody proceeding).

“The phrase ‘in loco parentis’ refers to a person who puts himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. The status of ‘in loco parentis’ embodies two ideas; first, the assumption of a parental status, and, second, the discharge of parental duties.” Bupp v. Bupp, 718 A.2d 1278, 1281 (Pa. Super. 1998) (quoting Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531, 533 (1968)).

“An important factor in determining whether a third party has standing is whether the third party lived with the child and the natural parent in a family setting, irrespective of its traditional or nontraditional composition, and developed a relationship with the child as a result of the participation and acquiescence of the natural parent.” Bupp v. Bupp, 718 A.2d 1278, 1281 (Pa. Super. 1998).

Charles, who married Shane’s birth mother, and cared for, sacrificed for, and raised Shane for seven years, has clearly attained in loco parentis status. There is no authority to support the proposition that a stepparent loses either his stepparent status or his standing in loco parentis upon the death of the birth parent/spouse. As a step-relation, Charles is not required to file a report of intention to adopt. 23 Pa.C.S. §2531. Finally, it is not Pennsylvania law that a birth parent automatically prevails against third parties in custody matters, particularly where there is evidence that the birth parent has been derelict in fulfilling his parental role. Charles v. Stehlik, 560 Pa. 334, 744 A.2d 1255 (2000), cert. denied, 530 U.S. 1243, 120 S.Ct. 2689, 147 L.Ed.2d 961 (2000).

In proceedings for the involuntary termination of parental rights, the petitioner bears the burden of establishing the statutory requirements by.clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re E.M., 533 Pa. 115, 620 A.2d 481 (1993); In re Adoption of Dale A. II, 453 Pa. Super. 106, 683 A.2d 297 (1996); Commonwealth v. Arnold, 445 Pa. Super. 384, 665 A.2d 836 (1995); In re E.S.M., 424 Pa. Super. 296, 622 A.2d 388 (1993). Section 2511(a)(1) of the Adoption Act, 23 Pa.C.S. §2101 et seq., provides for termination of parental rights where “[t]he parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.” 23 Pa.C.S. §2511(a)(1). Failure to perform parental duties for the prescribed period will, alone, justify termination of parental rights; it is not necessary to also establish a settled purpose or intent to relinquish a parental claim. Adoption of Baby Boy A. v. Catholic Social Services of Diocese of Harrisburg, Pennsylvania Inc., 512 Pa. 517, 517 A.2d 1244 (1986); In re W.M. III, 482 Pa. 123, 393 A.2d 410 (1978) (analyzing the requirements of 1 P.S. §311, now 23 Pa.C.S. §2511(a)(1)); In re Burns, 474 Pa. 615, 379 A.2d 535 (1977) (also discussing 1 P.S. §311, now 23 Pa.C.S. §2511(a)(l)).

However, a parent who fails to perform parental duties for the requisite statutory period does not automatically forfeit his or her parental rights; rather the court must look to the totality of the circumstances to determine whether the termination is appropriate. In re K.C.W., 456 Pa. Super. 1, 689 A.2d 294 (1997); Commonwealth v. Arnold, 445 Pa. Super. 384, 665 A.2d 836 (1995); Adoption of M.S., 445 Pa. Super. 177, 664 A.2d 1370 (1995); In re E.S.M., 424 Pa. Super. 296, 622 A.2d 388 (1993). The trial court must measure the parent’s performance in light of what would be expected of any individual under similar circumstances. In re V.E., 417 Pa. Super. 68, 611 A.2d 1267 (1992).

Parental duties encompass a wide range of responsibilities beyond mere financial obligations. Matter of Adoption of David C., 479 Pa. 1, 387 A.2d 804 (1978). A parent must affirmatively demonstrate love, protection and concern for his or her child. Commonwealth v. Arnold, 445 Pa. Super. 384, 665 A.2d 836 (1995). A parent must not yield to every problem, In re Adoption of Dale A. II, 453 Pa. Super. 106, 683 A.2d 297 (1996), but must exhibit reasonable firmness in overcoming obstacles placed in the path of the parent-child relationship. In re K.C.W., 456 Pa. Super. 1, 689 A.2d 294 (1997). A parent has a continuing duty to love, protect and support his or her children and to maintain communication and association with them even after he or she has been separated from them. In re V.E., 417 Pa. Super. 68, 611 A.2d 1267 (1992). A parent is required to exert him- or herself to take and maintain a place of importance in the child’s life. In re Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981) (discussing 1 P.S. §311, now 23 Pa.C.S. §2511(a)(1)).

The question at bar is whether Ryan has accomplished an abandonment of Shane within the meaning of 23 Pa.C.S. §2511(a)(l). Abandonment means “the parent has acquiesced in a termination of the close relationship normally existing between parent and child and permitted] the assumption by others of complete parental responsibilities.” Adoption of Spangler, 61 Berks L.J. 162, 165 (1969). See also, In re Rutz Adoption Case, 50 Lacka. Jur. 25, 27 (1949). Although entailing more than mere neglect, Snellgrose Adoption Case, 425 Pa. 258, 262, 228 A.2d 764, 766 (1967); Petition of Diffenderfer, 39 Northamp. 173, 176-77 (1969), it does not necessarily imply the complete cessation of concern for the child’s interests. Hookey Adoption Case, 419 Pa. 583, 589, 215 A.2d 860, 863 (1966); In re Adoption of Aldinger, 70 York Leg. Rec. 69, 72 (1956); Adoption of Hillman, 38 Erie 152, 158 (1955); Adoption of Conlon, 53 Lacka. Jur. 65, 68 (1952).

Ryan’s motivation for seeking Shane’s custody has been described as sincere. It has even been suggested that Ryan could provide a good home for Shane. Nevertheless, considering the totality of the circumstances, and measuring Ryan’s behavior in light of what would be expected of a similarly situated parent, we find Ryan’s conduct toward Shane meets the statutory threshold for termination of parental rights.

Commencing more than one year before the filing of this petition, Ryan evidenced a settled purpose of relinquishing his parental claim to Shane and refused or failed to perform his parental duties. With the exception of occasional vacations through 1998, Ryan has never become involved in Shane’s life beyond his two-day biweekly visitations. He did not maintain contact with Shane’s school or attend any of Shane’s academic or extracurricular activities. Ryan left it to Charles to take the initiative and guide Shane through the trials and tribulations of his tender years.

Ryan stopped visiting with Shane in June 1999. Around the same time, he also stopped supporting Shane financially and emotionally. In exchange for release from future liability and the discharge of his support arrears, which had accumulated to $750.59 by September 30, 1999, Ryan signed a consent to the termination of his parental rights to Shane. He then dropped from the child’s life without even the courtesy of an explanation or farewell.

Ryan has had nothing to do with Shane for more than a year, expressing not even the slightest interest in the child’s welfare until the death of Shane’s mother and the initiation of adoption proceedings. See In re Adoption of Toner, 27 Leh. L.J. 88 (1957) (termination decreed where father had no contact and expressed no interest in his child for 11 and one-half months). Ryan was content to allow another man to rear his child because of his strained relationship with the child’s mother. Rather than exercise reasonable firmness to conquer obstacles to his re- • lationship with Shane, Ryan capitulated, abdicating his parental role without equivocation. He did not strive to maintain a place of importance in Shane’s life. Yet now, impelled by the death of Shane’s mother, Ryan asks this court to sever Shane from the only source of security and unconditional love he knows, thank Charles for his time, and deliver Shane into the custody of an individual who would sacrifice his filial bond for economic convenience.

Abandonment “is not an ambulatory thing, the legal effects of which a delinquent parent may dissipate at will by the expression of a desire for the return of the discarded child.” Matter of Adoption of David C., 479 Pa. 1, 17, 387 A.2d 804, 811 (1978) (quoting Davies Adoption Case, 353 Pa. 579, 587, 46 A.2d 252, 256 (1946)); Petition of Diffenderfer, 39 Northamp. 173, 177 (1969); Adoption of Ornstein, 12 Bucks L. Rep. 595, 601 (1962); Adoption of Reese, 63 Lacka. Jur. 193, 197 (1962); Adop tion of Fuller, 54 Lacka. Jur. 37, 40 (1953). Although it is true that under certain circumstances a repentant birth parent may retrieve his or her parental rights, such as when it would benefit the child’s welfare, Davies Adoption Case, 353 Pa. 579, 587, 46 A.2d 252, 256 (1946); Adoption of Kelly, 32 Northumb. L.J. 62 (1960); Adoption of Hillman, 38 Erie L.J. 152, 156 (1955), “when following an abandonment new ties have been formed and a new station in life assumed by the child,” it may be unjust to deny legal sanction to the new conditions at the caprice of the errant birth parent and in such case the abandonment will be held irrevocable. Petition of Keich, 58 D.&C. 61, 66, 8 Monroe Leg. Rep. 85, 42 Sch. Leg. Rec. 99, 103 (1947); Adoption of Heffuer, 39 Berks L.J. 91, 92 (1946); Adoption of Ogurcak, 35 Berks L.J. 127, 129 (1943). See also, Davies Adoption Case, 353 Pa. 579, 588, 46 A.2d 252, 257 (1946).

“If a [parent] renounces ownership over the most treasured possession that can ever come into [his] days on earth, if [he] gives up the most precious gem in the diadem of [his] life for a period of time which establishes conclusively [his] renouncement of ownership, [he] cannot complain if that gem appears in the crown of happiness of another person or persons able and ready to assume the responsibilities which the [parent] has foresworn.” Austin Adoption Case, 426 Pa. 441, 443, 233 A.2d 526, 527 (1967).

We find these maxims applicable here. Ryan’s sudden change of heart towards Shane upon the death of Shane’s mother is simply a case of “too little too late.” With respect to Shane, Ryan seems motivated more by some perceived duty incident to biology than by a fatherly desire to reunite with his son. “Parenthood is not a mere biological status, or passive state of mind which claims and declines to relinquish ownership of the child. It is an active occupation, calling for constant, affirmative demonstration of parental love, protection and concern.” Matter of Kapcsos, 468 Pa. 50, 57, 360 A.2d 174, 177 (1976) (quoting Appeal of Diane B., 456 Pa. 429, 433, 321 A.2d 618, 620 (1974)). Cf. Battle Adoption Case, 456 Pa. 553, 321 A.2d 622 (1974) (mother’s abandonment of child not erased by mother’s subsequent two-year period of custody).

Fortunately, Shane does not need to rely on charity to assure his well-being. He has a number of caring adults in his life, chief among them Charles, his stepfather, whose love, knowledge about, concern and passion for the child radiated throughout his testimony and demeanor on the stand.

We recognize that, by all accounts, Ryan is an adequate husband and father to his wife and their child. However, this does not negate the fact that he has made some very poor choices in connection with his relationship with his firstborn, choices which have led to his prolonged and absolute physical and emotional estrangement from the child. Ryan’s overwhelming apathy towards Shane since June 1999 satisfies the statutory prerequisites for abandonment, and his eleventh-hour change of heart will not persuade this court to disturb the security and trust that has developed between Shane and his stepfather, Charles, in Ryan’s absence.

“Parental rights may not be preserved by complete indifference to the daily needs of a child or by merely waiting for some more suitable financial circumstance or convenient time for the performance of parental duties and responsibilities (while others adequately provide the child with [his] immediate and continuing physical and emotional needs). The parental obligation is a positive duty and requires affirmative performance which may not be delayed beyond the statutory period by the parent if the parental right is not to be forfeited.” Matter of Adoption of David C., 479 Pa. 1, 12, 387 A.2d 804, 809 (1978) (quoting Smith Adoption Case, 412 Pa. 501, 505, 194 A.2d 919, 922 (1963)). See also, In re Burns, 474 Pa. 615, 624, 379 A.2d 535, 540 (1977) (A child’s need for love, protection, guidance and support “cannot be met by a merely passive interest in the development of the child.”).

Charles has never wavered in fulfilling Shane’s parental needs and Shane has thrived in his care, even in the face of his recent devastating loss. We find Shane’s needs and welfare will be best promoted by terminating Ryan’s parental rights and continuing Charles’ custody of the child pending the consummation of Shane’s adoption by his stepfather.

ORDER

And now, October 2, 2000, upon consideration of the within petition and after hearing had thereon:

The court, being satisfied as to the truth of the facts set forth in the petition, finds that the adoptee’s birth father, Ryan, has forfeited his parental rights in the adoptee, Shane, and further finds that it best serves Shane’s needs and welfare to grant the petition, and it is hereby ordered, adjudged and decreed that all parental rights of Ryan in respect to Shane are terminated forever, and custody of Shane is hereby awarded to his stepfather, Charles, and the child may now be adopted without further consent of, or notice to, the birth father, Ryan.

If no exceptions are filed within 10 days hereof, this decree shall become the final order of the court.

      . Ryan explained that he had little leverage in those days when negotiating for the terms and conditions of his employment because he did not possess his own truck. However, despite acquiring his own truck several years ago, Ryan continues to accept employment that entails unpredictable hours and prolonged weekly absences from home. Ryan asserted that he intends to find less demanding, more family-friendly employment in consideration of Shane’s return, but at this time he has no firm prospects towards this end.

      . The matter at bar is easily distinguished from the 1974 Superior Court case, Auman v. Eash, 228 Pa. Super. 242, 323 A.2d 94 (1974). In Auman, the trial court awarded, and the Superior Court affirmed, custody of a child to his birth father instead of his stepfather, with whom the child had been living. Id. The court based its decision in large part upon a finding that the birth father had not abandoned his child. Id. Unlike the birth father in Auman, Ryan expressly set forth his intention and desire to sever his relationship with Shane, in anticipation of a financial reward, and concurrently unilaterally terminated all contact with the child for more than a year.


source: Caselaw Access Project

author: DOERR, P.J.,

license: Public Domain

text:
    Seiss v. Sherman
    C.P. of Butler County,
    no. 97-10977.

      Patricia A. Henry and J. Douglas Austin, for plaintiffs.

      Clare M. Bello, for defendant Sherman.

      Frederick N. Egler Jr. and Marilyn J. Larrimer, for defendant Metropolitan Life.
    September 19, 2000
   DOERR, P.J.,

This matter is before the court upon defendants’ preliminary objections to plaintiffs’ second amended complaint.

Robert J. Seiss and Lorraine B. Seiss, plaintiffs, filed a complaint against defendants J. Joel Sherman and Metropolitan Life Insurance Company on October 24, 1997, an amended complaint on November 12,1997 and a second amended complaint on January 15,1998. Plaintiffs aver that they purchased life insurance policies from MetLife through MetLife’s agent, defendant Sherman. Plaintiffs claim that defendant Sherman represented that the life insurance policy plaintiff Robert J. Seiss purchased included an individual retirement account. Plaintiffs claim that plaintiff Robert J. Seiss “rolled over” funds in an existing life insurance policy to fund the purchase of the new policy, based upon the advice of defendant Sherman. Plaintiffs further claim that defendant Sherman led them to believe that the new policy purchased for plaintiff Robert J. Seiss had a monthly premium of $25. Plaintiffs also claim that defendant Sherman led them to believe that a $61 monthly premium would sufficiently fund the new policies purchased in each of their names.

Plaintiffs believe that the life insurance policy, in fact, has no individual retirement account attached, and that the $25 monthly premium is insufficient to pay for the policy purchased for plaintiff Robert J. Seiss. Plaintiffs further believe that the life insurance policy will have no value in the future. They also believe that the $61 monthly premium is insufficient to fund both of the life insurance policies purchased from defendants.

Plaintiffs’ second amended complaint includes claims for common-law fraud; common-law breach of fiduciary duty; violation of the Unfair Trade Practices and Consumer Protection Law; breach of contract; and bad faith practices. Both defendants filed preliminary objections to the second amended complaint.

In review of preliminary objections, facts that are well-pleaded, material and relevant will be considered as true, together with such reasonable inferences as may be drawn therefrom. See Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 567, 650 A.2d 895, 899 (1994). Preliminary objections in the nature of a demurrer will be sustained only if the law clearly does not permit recovery under the alleged facts. See Green v. Mizner, 692 A.2d 169, 172 (Pa. Super. 1997). The existence of any doubt as to whether the demurrer must be sustained should be resolved by overruling the objection. See Green v. Mizner, 692 A.2d at 172.

Defendant MetLife’s first preliminary objection is in the nature of a demurrer to plaintiffs’ claim for breach of contract. Defendant MetLife avers that plaintiffs have not sufficiently alleged that a contract existed between plaintiffs and defendant MetLife. They further aver that plaintiffs’ claim cannot be based on oral representations made to them because contracts for insurance must be in writing. Defendant MetLife also claims that plaintiffs’ policies included a “free look” which gave them 10 days to review the policy and to accept or reject it, , and an integration clause that defines the entire contract between the parties.

Generally, a principal is liable for the acts of its agent. See Revere Press Inc. v. Blumberg, 431 Pa. 370, 373, 246 A.2d 407, 409 (1968). Therefore, defendant MetLife would be bound by representations made to plaintiffs by defendant Sherman, within the scope of his employment as a sales representative with defendant MetLife. However, under Pennsylvania law, contracts for life insurance must be in writing in order to be actionable. See Fischman v. Benefit Association of Railway Employees, 409 Pa. 364, 369, 186 A.2d 629, 631 (1962); Zayc v. John Hancock Mutual Life Insurance Co., 338 Pa. 426, 13 A.2d 34 (1940). In this case, plaintiffs claim that they relied on oral representations made by defendant Sherman, in deciding to purchase the policies from defendant MetLife, and that those terms were not contained in the life insurance policies that they purchased. The court finds that plaintiffs cannot rely on any oral agreements made with defendant Sherman in light of the aforementioned case law.

Additionally, the policy that each of the plaintiffs purchased contained an integration clause, which states that the policy is intended to be the entire contract between the parties. The court finds, therefore, that the parol evidence rule bars plaintiffs from relying on oral representations made before the policies were put into writing.

As discussed, supra, contracts for insurance must be in writing. In this case, plaintiffs are not claiming that defendants breached terms that were included in the written insurance policies, but are claiming that terms orally represented by defendant Sherman are not included in the policies. The court finds that these allegations do not sustain a claim for breach of contract in this case.

As discussed previously, defendant MetLife is bound by the representations of its agent, defendant Sherman. However, the “free look” provisions of the insurance policies purchased by plaintiffs further support the finding that plaintiffs were bound by the written policies in this case and not defendant Sherman’s oral representations. The issue of the “free look” provision was addressed by Judge Wettick in Inhat v. Pover, Part II, 146 P.L.J. 299 (1998). In that case, Judge Wettick stated that an insurance policy containing a “free look” provision will be construed as an offer of the policy, as written, to the prospective insured, which they have the option of accepting or rejecting. See Inhat, 146 P.L.J. at 312. He further stated that “the insured does not have a third option — to obtain an insurance agreement the terms and conditions which the agent described or damages for failure to comply with this agreement.” See id. at 313. In the present case, the policies provided that plaintiffs had 10 days in which they could accept or reject the policies as written. By failing to reject the policies within this time period, plaintiffs accepted the written terms of the policies. As discussed supra, plaintiff could not rely on the oral representations made by defendant MetLife’s agent, defendant Sherman, before the written contracts were entered into by the parties.

In light of the foregoing, the court finds that defendant MetLife’s preliminary objection in the nature of a demurrer to plaintiffs’ claim for breach of contract is sustained.

Defendant MetLife’s second preliminary objection is in the nature of a demurrer to plaintiffs’ claim for bad faith practices under section 8371 of the Unfair Insurance Practices Act. They aver that plaintiffs’ claims do not “arise under” an insurance policy, as required by the statute, because they are not attempting to enforce terms of the policy, but are trying to apply the statute to alleged improper practices in the selling of an insurance policy. According to defendant MetLife, the statute was enacted to provide relief only for insurers’ bad faith in failing to pay on a claim. They also allege that the statute was enacted after the alleged bad faith conduct occurred in this case and, therefore, it is not applicable.

Section 8371 of the Unfair Insurance Practices Act provides that in an “action arising under an insurance policy,” a court may take certain actions if it finds an insurer has acted in bad faith toward its insured. See 42 Pa.C.S. §8371. The Superior Court of Pennsylvania has held that under section 8371, bad faith means “any frivolous or unfounded refusal to pay proceeds of a policy.” See Terletsky v. Prudential Property and Casualty Insurance Co., 437 Pa. Super. 108, 125, 649 A.2d 680, 688 (1994). In this case, plaintiffs’ claims are based upon the actions of defendant MetLife’s agent, defendant Sherman, in inducing them to purchase insurance policies, not on failure of defendant MetLife to pay a claim arising under an insurance policy. As such, the court finds plaintiffs do not have a cause of action under section 8371 based upon the facts alleged in their complaint. Accordingly, defendant MetLife’s preliminary objection in the nature of a demurrer to plaintiffs’ claim for bad faith practices is sustained.

Defendant MetLife’s third preliminary objection is in the nature of a demurrer to plaintiffs’ claim for breach of fiduciary duty. Defendant MetLife avers that Pennsylvania case law rejects the existence of a fiduciary relationship between an insurer, or its agents, and the insured.

Defendant Sherman also objects to plaintiffs’ claim for breach of fiduciary duty contained in plaintiffs’ second amended complaint. He claims that an insurance company is not in a fiduciary relationship with its insured under Pennsylvania law. Defendant Sherman avers that Pennsylvania law provides other recognized causes of action for alleged fraudulent conduct by an insurance company, including a claim under the Unfair Trade Practices and Consumer Protection Law. Defendant Sherman also requests that plaintiffs’ allegation, that he owed plaintiffs a “trust fiduciary” duty when he accepted premium payment from them, be stricken from the complaint.

The issue of whether an insurer has fiduciary responsibilities to its insured is not new to this court. In Kriebel v. Metropolitan Life, Butler County (A.D. 95-10666) June 23, 1997, Judge Martin J. O’Brien, in ruling on the defendants’ preliminary objections, found that a fiduciary duty does not exist prior to entering into insurance agreements. Similarly, in Snyder v. Metropolitan Life Insurance, Butler County (A.D. 97-10329) October 7, 1998, in ruling on the defendants’ prehminary objections, Judge George H. Hancher found that based upon the Kriebel case, as well as other Pennsylvania case law, no fiduciary relationship exists between an insurance company and its insured.

Judge Wettick in the Allegheny County Court of Common Pleas also addressed this issue in the detailed Inhat opinion. In that case, Judge Wettick found that the insurer does not have fiduciary responsibilities to the insured either prior to the formation of an insurance agreement, or when there is an existing relationship between the insurer and the insured. See Inhat, 146 P.L.J. at 307. Instead, he describes the relationship as that of buyer and seller. See id. Further, Judge Wettick states that a fiduciary relationship exists when one party has been entrusted to make a decision on behalf of another party, either by law or by an agreement. See id. at 306. Moreover, a fiduciary relationship is not imposed just because one party has superior bargaining power over another party. See id.

In this case, the court finds that it is bound by the previous rulings of this court, which are supported by Pennsylvania case law. Accordingly, defendant MetLife’s and defendant Sherman’s preliminary objections in the nature of a demurrer to plaintiffs’ claim for breach of fiduciary duty are sustained. Additionally, defendant Sherman’s request to have paragraph 8 stricken from the complaint is granted as the court has found no fiduciary relationship between defendant Sherman and plaintiffs.

ORDER

And now, September 19, 2000, the court hereby orders the following:

(1) Defendant MetLife’s preliminary objection in the nature of a demurrer to Count II of plaintiffs’ complaint is sustained. Plaintiffs’ claim for breach of fiduciary duty against defendant MetLife is dismissed.

(2) Defendant MetLife’s preliminary objection in the nature of a demurrer to Count IV of plaintiffs’ complaint is sustained. Plaintiffs’ claim for breach of contract against defendant MetLife is dismissed.

(3) Defendant MetLife’s preliminary objection in the nature of a demurrer to Count V of plaintiffs’ complaint is sustained. Plaintiffs’ claim for bad faith practices against defendant MetLife is dismissed.

(4) Defendant Sherman’s preliminary objection in the nature of a demurrer to Count II of plaintiffs’ complaint is sustained. Plaintiffs’ claim for breach of fiduciary duty against defendant Sherman is dismissed.

(5) Paragraph 8 of plaintiffs’ second amended complaint is hereby stricken.

The parties are directed to proceed in accordance with the Pennsylvania Rules of Civil Procedure.


author: HERMAN, J.,

text:
    Jones v. Early

      C.P. of Franklin County,
    no. A.D. 1992-397.

      Charles A. Bierbach and Lee G. Nollau, for plaintiffs.

      Linda Porr Sweeney and Christopher F. Wilson, for defendant.
    August 30, 2000
   HERMAN, J.,

Before the court is the plaintiffs’ petition for relief from judgment non pros entered by this court on January 22, 1998. The defendant filed an answer to the petition and argument was held. This matter is ready for decision.

BACKGROUND

A case can be dismissed for inactivity where (1) there is a lack of due diligence on the part of the plaintiff in failing to proceed with reasonable promptitude; (2) the plaintiff has no compelling reason for the delay and (3) the delay causes actual prejudice to the defendant. Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098 (1998). Prejudice has been defined as “any substantive diminution of a party’s ability to properly present its case at trial.” Id., 551 Pa. at 358, 710 A.2d at 1103. (citations omitted) The defendant must show he has lost his ability to adequately prepare a defense. Id. Prejudice can be established by the death or absence of a material witness. Id.; James Brothers Co. v. Union Banking and Trust Co. of DuBois, 432 Pa. 129, 247 A.2d 587 (1968); Shope v. Eagle, 551 Pa. 360, 710 A.2d 1104 (1998).

The plaintiffs, Patricia and Donald Jones, filed a complaint on September 30,1992 alleging the defendant, Dr. Calvin B. Early M.D., was negligent in performing a spinal operation on Mrs. Jones on August 21,1990. The parties conducted discovery in 1993, 1994, 1995 and 1996. This discovery, specifically the taking of depositions, was hampered by the fact that copies of certain x-rays were missing. Some of the x-rays were eventually located in late 1996 and the remaining depositions were set for July 1997.

Before the depositions could be completed, the defendant filed a motion for entry of judgment non pros on the ground that more than two years had elapsed between substantive docket entries, those being July 25,1994 and May 2,1997. The plaintiffs argued the delay was attributable to continuing attempts by both counsel to locate the missing films, and to take depositions and that the defendant was responsible for the delay.

The court on January 22, 1998 ruled non pros was justified because the plaintiffs were not diligent in prosecuting the case with reasonable promptitude and there was no compelling reason for the delay. The court made no finding as to whether the defendant had been prejudiced by the delay because case law then in effect held that a lack of substantive docket activity for two years or more was presumptively prejudicial. There was therefore no need for the court to make a finding as to whether the defendant suffered actual prejudice in his ability to mount a defense as a result of the plaintiffs’ dilatory conduct. Penn Piping Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992).

On February 2, 1998, the plaintiffs petitioned for relief from judgment non pros in light of the Pennsylvania Supreme Court’s April 2,1998 decision in Jacobs which reformulated the standard for granting such judgment in this Commonwealth. The Jacobs court abandoned the two-year presumption of prejudice set forth in Penn Piping and held that non pros is inappropriate unless the defendant can show the plaintiff’s failure to proceed with reasonable promptitude caused him actual prejudice. A defendant will be given the opportunity to establish actual prejudice through the development of an evidentiary record.

On June 29, 1998, the court denied the plaintiffs’ petition for relief from judgment non pros on the grounds raised in the petition (whereby the plaintiffs sought to relitigate the issues of whether they failed to act with due diligence in pursuing the case and whether there was a compelling reason for the delay), vacated its order of January 22, 1998 in light of Jacobs and granted “the defendant’s request to have the parties engage in discovery for the purpose of creating an evidentiary record on the issue of whether the defendant has been prejudiced by the plaintiffs’ failure to prosecute the case with reasonable promptitude. The depositions of the defendant’s prior counsel and plaintiffs’ co-counsel were taken and the defendant filed certain exhibits in order to create an evidentiary record on the issue of whether the defendant has suffered prejudice in his ability to defend himself against the allegations in the complaint.

DISCUSSION

The defendant argues he has been prejudiced because two witnesses he intended to call on his behalf at trial are no longer available. Dr. J.W. Laing M.D. is the defendant’s former partner and assisted the defendant during the surgery. The defendant filed the affidavit of Dr. Michael H. Palmer M.D., Dr. Laing’s treating physician, in which Dr. Palmer states Dr. Laing has been in failing health since March of 1996 and that subjecting him to a deposition would jeopardize his health. The other witness who is now unavailable is Dr. Albert N. Martins M.D. The defendant moved into the record an affidavit signed by Dr. Martins’ former partner, Dr. Robert C. Leaver M.D. who states Dr. Martins died in December of 1993. The plaintiffs do not dispute that both Dr. Laing and Dr. Martins are unavailable to testify for the defendant. The question is whether the defendant has suffered actual prejudice because of their unavailability.

Dr. Martins

Shortly after the complaint was filed, Dr. Martins wrote a brief letter to Dr. Early stating Dr. Early rendered appropriate medical treatment to Mrs. Jones during her surgery. His letter was attached to the defendant’s November 1993 answers to plaintiffs’ interrogatories. Interrogatory no. 4 requested the defendant to name all experts expected to testify at trial, to which the defendant responded as follows:

“Defendant has not yet determined experts to testify at the trial of this case and therefore will supplement this response with an expert report at a later date in accordance with the Pennsylvania Rules of Civil Procedure. By way of further answer, defendant has discussed the surgical procedure performed on plaintiff with Albert Martins M.D. and James Robertson M.D. Copies of their correspondence to defendant are attached hereto. Defendant has not yet determined if Dr. Martins and Dr. Robertson will be called as expert witnesses in this case.”

Dr. Martins died in December 1993. According to the defendant, Dr. Martins’ participation in this case was essential to his defense because Dr. Martins was a leader in the development of the technique which the defendant used during Mrs. Jones’ surgery.

The defendant argues we should be guided by the result in Shope. In that case, the plaintiff failed the first two prongs of Jacobs. The court went on to rule the defendant was prejudiced by the plaintiff’s dilatory conduct because in the three years before the petition for non pros was filed, a physician who examined the plaintiff and was listed as a possible expert witness in the defendant’s interrogatories passed away. The Supreme Court, upholding the trial court’s finding of prejudice, held the defendant was precluded from discovering the findings of the deceased physician’s examination, his opinion concerning liability, causation and damages, as well as the details of the history provided to him by the plaintiff during the examination.

We disagree that Shope demands the same outcome here. The physician in that case examined the plaintiff and commented on her condition during the three year period when the plaintiff failed to move the case. By contrast Dr. Martins was involved in the instant case at least as early as December of 1992, long before the case became the legitimate target of a non pros motion. Therefore the plaintiffs’ later dilatory conduct played no role in Dr. Martins’ current unavailability. Once Dr. Martins died in December 1993, counsel for the defendant must have realized the need to retain another expert witness. Nothing prevented counsel from asking another physician to review the medical records and render an opinion in the same manner as did Dr. Martins. In fact, in 1992, defense counsel did consult with Dr. Robertson who provided a brief letter opinion in January 1993, and, according to defense counsel’s representations to the court, Dr. Robertson remains available for consultation at the present time.

The plaintiff in Shope argued unsuccessfully to the trial court that there was no prejudice to the defendant because the deceased physician was not the plaintiff’s treating physician, was not deposed and was not listed by the defendant as an expert witness. The Supreme Court refused to reverse the trial court’s finding on this issue because “these same arguments were made before the trial court and rejected. The trial court obviously credited the [defendant’s] version of the importance of [this physician] as a witness.” Id. at 368 n.15, 710 A.2d at 1108 n.15. The question of whether a defendant has suffered actual prejudice must be resolved through a fact-finding process and in the case at bar that process weighs not in the defendant’s favor but in favor of the plaintiffs.

Dr. Laing

The plaintiffs’ interrogatory no. 20 requested the defendant to identify all fact witnesses which the defendant intended to call at trial. The defendant’s November 1993 answer was: “Defendant Dr. Early has not yet determined witnesses to testify at the trial of this case and therefore reserves the right to supplement this response.” Dr. Laing assisted the defendant during Mrs. Jones’ surgery. The defendant asserts he intended to call Dr. Laing as a fact witness but can no longer do so because of Dr. Laing’s poor health. We are unpersuaded that the defendant’s present inability to use Dr. Laing as a witness was caused by the plaintiffs’ failure to move the case forward. Counsel for the defendant clearly knew of Dr. Laing’s role as assistant during the operation as early as his April 20, 1993 answer to the amended complaint yet made no mention of him in the answer to interrogatory no. 20. There is also no evidence before us that Dr. Laing was ever mentioned as a witness in any correspondence between counsel. Defense counsel evidently made no effort to depose Dr. Laing prior to the onset of his incapacity in March of 1996. Only after the non pros motion was filed did the defendant actually name him as a potential witness.

The defendant argues the plaintiffs should have known Dr. Laing might be a defense witness because his name came up several times during Mrs. Jones’ February 23, 1995 deposition. This is no substitute for formally identifying Dr. Laing as a witness. If Dr. Laing was as critical to the defense as is now being claimed, he clearly would have been identified as a witness early on in the case or at a minimum sometime before March of 1996 when his health began to fail. There is insufficient basis that it was the plaintiffs’ delay which caused the defendant to lose the opportunity to utilize Dr. Laing as a witness.

The plaintiffs’ amended complaint filed February 2, 1993 avers “Throughout the course of the August 21, 1990 operation, Dr. Early was responsible for, and had complete control over, any and all procedures and/or people in the operating room who may have had responsibilities to care for Patricia A. Jones.” (Paragraph 13.) The defendant asserts he has been prejudiced by the fact that persons involved with the operation may now be difficult to locate. We disagree. The defendant failed to produce any evidence that such individuals cannot in fact be located and we cannot make a finding of prejudice based on speculation alone.

Jacobs speaks of substantial, not total, diminution of a defendant’s ability to present a defense, and whether the defendant can adequately prepare a defense. Id. at 358, 359, 710 A.2d at 1102, 1103. Jacobs does not guarantee that a defendant is entitled to present the perfect or ideal defense. Insofar as the defendant has not established he is actually prejudiced in his ability to substantially and adequately defend himself, the plaintiffs’ petition for relief from judgment non pros will be granted.

ORDER

Now, August 30, 2000, the petition filed by the plaintiffs for relief from entry of judgment non pros is hereby granted. The plaintiffs may proceed to move this case to trial. In support of this opinion and order, the court hereby directs the appendix submitted by the plaintiffs in conjunction with their written argument be made part of the record. The court further directs that the partial transcript of the February 23, 1995 deposition of plaintiff Patricia A. Jones also be made part of the record. The court notes that these documents are being made part of the record because counsel for both parties submitted them to the court at oral argument and referred to them and neither objected to the fact that these documents had not yet been made part of the record. The court further directs counsel for the plaintiffs to file of record a certified copy signed by the court reporter of the depositions of Attorneys Leigh Ellis and Lee Nollau, Esquires. Counsel for the defendant is directed to file of record a certified, complete copy of Mrs. Jones’ February 23, 1995 deposition which has been signed by the court reporter.

      . The plaintiffs correctly point out that many cases pending in the appellate courts have been remanded for proceedings consistent with Jacobs and its companion cases Shope and Marino v. Hackman, 551 Pa. 369, 710 A.2d 1108 (1998). One such case is Medinets v. Betzko, Franklin County Court of Common Pleas, A.D. no. 1994-107. In Medinets the Honorable William H. Kaye granted a motion for entry of judgment non pros based on Penn Piping. The Honorable John R. Walker later denied the plaintiff’s petition to open the judgment as being untimely and also denied it on the merits. Judge Walker’s ruling was appealed to the Superior Court and was reversed and remanded for further proceedings consistent with Jacobs, if appropriate. Judge Walker ultimately found the plaintiff had indeed prosecuted the case with diligence and promptness. Because the court found the plaintiff had so proceeded, the defendant’s failure to present any evidence of having suffered actual prejudice was not critical to the court’s decision. Therefore Judge Walker’s ruling is not dispositive of the issue before us.

      . Exhibits A and B of defendant’s motion to move affidavits into the record, filed December 16,1999. The affidavits were made part of the record with the concurrence of plaintiffs’ counsel.

      . Though not central to our decision, we note that at no time between November 1993 and the July 14,1997 non pros petition did the defendant make reference to Dr. Martins as a potential expert witness. Nor is there evidence that defense counsel informed plaintiffs’ counsel during that period about Dr. Martins’ death.

      . The plaintiffs urge the court to re-examine its prior finding as to their failure to satisfy the first two prongs of the Jacobs test for non pros. This issue is moot insofar as we here find the defendant has failed to show the plaintiffs’ dilatory conduct caused him actual prejudice.


author: MINORA, J.,

text:
    Drake v. Falbo

      C.P. of Lackawanna County,
    no. 97-CV-1031.

      David J. Rinaldi, for plaintiff.

      Daniel E. Cummins, for defendant
    September 28, 2000
   MINORA, J.,

Currently before the court comes the defendant seeking summary judgment against the plaintiff. Plaintiff brought suit to recover for injuries incurred after an automobile accident between the defendant, the plaintiff and a third vehicle. At issue is whether plaintiff’s evidence is sufficient to overcome the serious injury threshold of the limited tort alternative necessary to deny defendant’s motion for summary judgement. Both parties have submitted their respective briefs, and the matter is ripe for decision. For reasons discussed below we find that plaintiff’s evidence is sufficient to establish that she incurred a serious injury as required under the Motor Vehicle Financial Responsibility Law. Accordingly, defendant’s motion is denied.

FACTUAL HISTORY

On September 13, 1995, Patricia B. Drake, plaintiff, was involved in an automobile accident with Sandy M. Falbo, defendant, on the Scranton-Carbondale Highway. While plaintiff’s vehicle was stopped, she was allegedly hit from behind by defendant, and the force from the impact pushed plaintiff’s vehicle into the back of a garbage truck that was stopped in front of her. Plaintiff was transported to Marian Community Hospital and treated for lower back pain. Plaintiff allegedly continues to have lower back pain that prevents her from engaging in everyday activities and impairs some of her bodily functions as a result of the accident.

DISCUSSION

I. Standard of Review

A party may move for summary judgment after pleadings are closed in two situations. First, when there is no genuine issue of material fact that could be established by additional discovery, and second, after discovery, if an adverse party bearing the burden of proof has failed to produce evidence of essential facts so as to warrant the submission of the issue to a jury. Pa.R.C.P. 1035.2; Fazio v. Fegley Oil Co. Inc., 714 A.2d 510, 512 (Pa. Commw. 1998). Further, under the revised rules, a court may grant summary judgment where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Boyer v. Walker, 714 A.2d 458, 459 (Pa. Super. 1998); Cappelli v. York Operating Co. Inc., 711 A.2d 481, 483 (Pa. Super. 1998) (en banc). When making this determination, the trial court must consider the evidence in a light most favorable to the non-moving party. Pa.R.C.P. 1035.1-1035.4; Harman on behalf of Harman v. Borah, 720 A.2d 1058, 1061 (Pa. Super. 1998); Sebelin v. Yamaha Motor Corp. USA, 705 A.2d 904, 907 (Pa. Super. 1998).

Rule 1035.3(a) requires that the adverse party file a response setting forth the facts in dispute within 30 days after the service of the motion for summary judgment. Pa.R.C.P. 1035.3(a); Henninger v. State Farm Insurance Co., 719 A.2d 1074, 1076 (Pa. Super. 1998); Stilp v. Hafer, 701 A.2d 1387, 1390 (Pa. Commw. 1997). Where a motion for summary judgment has been properly supported with corroborating documentation, the adverse party must demonstrate by specific facts contained within their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue of material fact for trial. Sovich v. Shaughnessy, 705 A.2d 942, 944 (Pa. Commw. 1998) citing Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991).

II. Defendant’s Argument

Defendant asserts that her motion for summary judgment should be granted because the plaintiff’s evidence is insufficient to overcome the serious injury threshold of the limited tort alternative as laid out in the Motor Vehicle Financial Responsibility Law. Defendant argues that the resolution of the motion for summary judgment is governed by the undisputed fact that plaintiff selected the limited tort alternative and the undisputed facts surrounding her alleged injuries. If the motorist selects this option, he or she surrenders the right to sue for noneconomic damages, such as pain and suffering, which were sustained in a motor vehicle accident unless the claimant suffers a serious injury. 75 Pa.C.S. §1705.

Serious injury is defined as a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement. 75 Pa.C.S. §1702. Because no death or permanent serious disfigurement occurred in this case, plaintiff’s serious injury must be analyzed as a serious impairment of body function. The serious impairment of body function threshold contains two in-quines. Washington v. Baxter, 553 Pa. 434, 447, 719 A.2d 733, 740 (1998). The first is what, if any was impaired, because of injuries sustained in a motor vehicle accident. Id. The second is was the impairment of the body function serious. Id. The focus of these inquiries is not on the injuries themselves, but how the injuries affected a particular body function. Id. In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment and any other relevant factors. Id. An impairment need not be permanent to be serious. Id. The trial judge must make the threshold determination of whether there has been a serious injury in all cases where the parties agree on the objective evidence relating to the nature and extent of the injuries suffered by the plaintiff. Id. at 738.

Both parties agree that plaintiff suffered from back pain at the time after the accident, however, defendant asserts that plaintiff did not have any injury from the accident which caused her complaints of pain radiating from the low back into her legs. Defendant contends that plaintiff’s pain was related to her diabetes. Defendant argues that the medical evidence in the record regarding the existence, extent and permanency of plaintiff’s alleged impairment determines that her injury did not surpass the serious injury threshold. Defendant asserts that plaintiff’s admissions during her deposition reveal that her injuries do not constitute a serious impairment of any bodily function or a significant impairment of her lifestyle so as to bring her case beyond the limited tort threshold. We disagree.

III. Plaintiff’s Argument

Plaintiff asserts that defendant’s motion for summary judgment should be denied because plaintiff’s injury resulted in serious impairment of the bodily function and lifestyle, therefore, the record contains sufficient evidence to overcome the threshold requirement of the Motor Vehicle Financial Responsibility Law. Plaintiff’s deposition testimony reveals that she experienced lower back pain from the time of the accident. Plaintiff still has problems with her back today. Certain everyday functions of her life were and are affected such as sleeping, sitting, walking, performing housework, driving, laying down and engaging in sexual activity.

The impairment to plaintiff’s body and lifestyle, as a result of the injury incurred during the accident in question, would be considered serious under the analysis set forth in Washington. The impairment has lasted over five years and has restricted the activities that plaintiff is able to perform. Plaintiff has received treatment and therapy for the injuries she sustained, but the pain has persisted.

IV. Conclusion

When viewing the evidence in the light most favorable to the non-moving party, as we are obligated to do, we conclude that the plaintiff’s injury, as evidenced, could be deemed serious, therefore, the initial threshold requirement of the Motor Vehicle Financial Responsibility Law would be met. Accordingly, defendant’s motion for summary judgment is denied.

An appropriate order consistent with this reasoning follows.

ORDER

And now, to wit, September 28, 2000, it is hereby ordered and decreed that the defendant’s motion for summary judgment is denied.


author: MINORA,

text:
    Lynady v. Community Medical Center

      C.P. of Lackawanna County,
    no. 97-CV-252.

      Paul A. Kelly, for plaintiff.

      Matthew P. Barrett, for defendant.
    June 22, 2000
   MINORA,

Presently before the court is the defendant’s motion for summary judgment. This matter arises out of the defendant discharging the plaintiff from his employment at the Community Medical Center. The defendant’s action is premised on the argument that the plaintiff was an “at-will” employee and as such has no contractual right to relief. The plaintiff argues that both the letter of discharge and the defendant’s human resources policy and procedure manual give rise to an employment relationship that is not terminable at will. Arguments on this issue were heard before this court on January 18, 2000. Both parties have submitted their respective briefs. Accordingly, we will now decide this issue.

FACTUAL BACKGROUND

In March of 1982, Timothy Lynady, plaintiff, was hired by Community Medical Center, defendant, to work in the Data Processing Department. Since his hiring, the plaintiff’s job performance has been consistently rated favorably. On January 18, 1995, the defendant notified the plaintiff that due to “work force reduction,” his position would be terminated. In a letter notifying him of his discharge, the defendant outlined its policy in rehiring should a vacancy appear:

“Seniority rights — when a vacancy occurs in the position from which an employee was displaced, individuals will be recalled in the reverse order of the work force reduction or displacement. When a vacancy occurs in a position from which no employee was displaced, the employee on the work force reduction list with the most hire date seniority, who is qualified, shall be offered the position. In addition, those employees displaced whose positions were eliminated will also be considered for vacancies in other areas for which they could perform the job with minimal orientation and training.” Plaintiff’s exhibit B-l, letter from defendant dated January 18,1995.

Subsequent to the plaintiff’s termination, the defendant has allegedly hired a minimum of at least seven people to positions for which the plaintiff claims to be qualified. This is the cause of action in the present dispute. Such hires would be in violation of both the termination letter and the policies and procedures manual if the plaintiff is technically qualified to hold those jobs.

The plaintiff asserts the following six counts against the defendant. (1) Count I accuses the defendant of age discrimination. (2) Count II accuses the defendant of breaching the human resourcee policy and procedure manual relating to seniority. (3) Count III seeks equitable relief from the court. (4) Count IV accuses the defendant of fraudulent misrepresentation. (5) Count V accuses the defendant of negligent misrepresentation, and (6) Count VI accuses the defendant of breaching the implied duty of good faith and fair dealing.

DISCUSSION

I. Issue

At issue is the disposition of the defendant’s motion for summary judgment seeking dismissal of the plaintiff’s six counts set forth above asserted in his amended complaint. Much of this decision will hinge on whether the plaintiff was in fact an “at-will” employee. Therefore the initial steps in this analysis after a brief review of the summary judgment standard will be to discuss the nature of an “at-will” employment arrangement and whether the plaintiff fell under this category. Following this, each of the plaintiff’s six counts will be addressed relative to the defendant’s motion for summary judgment.

II. Standard of Review for Summary Judgment

A party may move for summary judgment after pleadings are closed in two situations. First, when there is no genuine issue of material fact that could be established by additional discovery, and second, after discovery, if an adverse party bearing the burden of proof has failed to produce evidence of essential facts so as to warrant the submission of the issue to a jury. Pa.R.C.P. 1035.2; Fazio v. Fegley Oil Co. Inc., 714 A.2d 510, 512 (Pa. Commw. 1998). Further, under the revised rules, a court may grant summary judgment where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Boyer v. Walker, 714 A.2d 458, 459 (Pa. Super. 1998); Cappelli v. York Operating Co. Inc., 711 A.2d 481, 483 (Pa. Super. 1998) (en banc). When making this determination, the trial court must consider the evidence in a light most favorable to the non-moving party. Pa.R.C.P 1035.1-1035.4; Harman by Harman v. Borah, 720 A.2d 1058, 1061 (Pa. Super. 1998); Sebelin v. Yamaha Motor Corp. USA, 705 A.2d 904, 907 (Pa. Super. 1998). See also, Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 737 (1998).

Rule 1035.3(a) requires that the adverse party file a response setting forth the facts in dispute within 30 days after the service of the motion for summary judgment. Pa.R.C.P. 1035.3(a); Henninger v. State Farm Insurance Co., 719 A.2d 1074, 1076 (Pa. Super. 1998); Stilp v. Hafer, 701 A.2d 1387, 1390 (Pa. Commw. 1997). Where a motion for summary judgment has been properly supported with corroborating documentation, the adverse party must demonstrate by specific facts contained within their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue of material fact for trial. Sovich v. Shaughnessy, 705 A.2d 942, 944 (Pa. Commw. 1998), citing Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991).

IIL The “At-Will” Employment Relationship

A. The Nature of the “At-Will” Employment Relationship

Pennsylvania law presumes that all employment is “at-will,” except where a definite contract with terms to the contrary exists (i.e., terms which specify a definite duration for the term of employment). As such, an employee may be discharged for any reason or no reason. Stumpp v. Stroudsburg Municipal Authority, 540 Pa. 391, 396, 658 A.2d 333, 335 (1995); Niehaus v. Delaware Valley Medical Ctr., 429 Pa. Super. 119, 121, 631 A.2d 1314, 1315 (1993), citing Scott v. Extracorporeal Inc., 376 Pa. Super. 90, 94, 545 A.2d 334, 336 (1988); Marsh v. Boyle, 366 Pa. Super. 1, 530 A.2d 491 (1987). Where there is no definite contract with contrary terms, the “at-will” employment relationship exists only so long as both the employer and the employee so desire. Martin v. Capital Cities Media Inc., 354 Pa. Super. 199, 213, 511 A.2d 830, 837 (1986), citing E.A. Farnsworth, Contracts §532 (1982). Accordingly, the “at-will” employment relationship is terminable by the employer or the employee at any time. Reese v. Tom Hesser Chevrolet — BMW, 413 Pa. Super. 168, 604 A.2d 1072 (1992). See also, McLaughlin v. Gastrointestinal Specialists Inc., 561 Pa. 307, 750 A.2d 283 (2000).

B. The Nature of the Plaintiff’s Employment Relationship With the Defendant

Because of the legal presumption that all employment relationships are “at-will,” the burden of proof will naturally rest with the party challenging this presumption. Greene v. Oliver Realty Inc., 363 Pa. Super. 534, 543, 526 A.2d 1192, 1196 (1987). Here, the plaintiff challenges this presumption by arguing that the defendant’s letter notifying the plaintiff of his termination along with the defendant’s human resources policy and procedure manual, from which the letter was based, created an implied employment contract which negates the “at-will” presumption. Because of this, the plaintiff bears the burden of rebutting the presumption of the existence of an “at-will” employment relationship.

The letter in question contains a paragraph (quoted supra in the “factual background” section of this opinion), which allegedly gives rise to a contractual agreement as to the plaintiff’s employment with the defendant. The plaintiff also cites to the provisions of the manual in his amended complaint to buttress the proposition of this alleged implied employment contract. The terms of the manual read as follows:

“Employee identified for work force reduction — In times when it is necessary to reduce CMC’s work force generally, the employee with the lowest seniority in a designated job title classification, in the cost center impacted by work force reduction, will be selected.” Defendant’s human resources policy and procedure manual, page 2.

The plaintiff argues that these provisions have the effect of negating the “at-will” presumption thus creating an implied employment contract, the terms of which require the defendant to rehire the plaintiff if a new position should open up subsequent to his discharge. We do not agree.

It is well settled that the terms of an employee handbook or manual outlining employment policies are not binding on the employer unless the terms were bargained over between the employer and employee. Martin v. Capital Cities Media Inc., 354 Pa. Super. 199, 215, 511 A.2d 830, 836 (1986). The justification for this reasoning is that the terms in the manual or handbook lack consideration and further, no reasonable employee would consider the terms to be binding because the employer reserves the right to unilaterally change the terms. Id.; Luteran v. Loral Fairchild Corp., 455 Pa. Super. 364, 371, 688 A.2d 211, 216 (1997). Based on this reasoning, the terms of both the termination letter and the employee manual would not constitute an implied employment contract. Therefore, the plaintiff would be an employee “at-will.”

IV. The Defendant’s Motion for Summary Judgment

A. Count I — Age Discrimination

Count I of the amended complaint entitled “age discrimination” alleges that the defendant, by terminating the plaintiff,' “willfully, knowingly, and intentionally discriminated against him on the basis of his seniority.” See plaintiff’s amended complaint, Count I, paragraph 16. The defendant asserts in its answer that the plaintiff has not followed the proper procedure to file such a claim under the Pennsylvania Human Relations Act. See 43 PS. §951 et seq. (1999). The plaintiff responded to the defendant’s answer that he is not asserting the claim of age discrimination under the Human Relations Act. However, the plaintiff neglects to inform the court, both in his pleadings or in his brief under which theory this allegation is pled. Certainly, under the Human Relations Act, a suit for age discrimination would be inappropriate because the plaintiff has not exhausted all of his administrative options as required. Vincent v. Fuller Co. and GATX Corp., 532 Pa. 547, 556, 616 A.2d 969, 974 (1992); 43 P.S. §959 (1999).

The plaintiff also asserts a claim for discrimination based on seniority. Because it has been determined that the plaintiff was an “at-will” employee, there is no cause of action for discrimination based on seniority or any other cause that is not a statutory exception to the “at-will” employment relationship. Stumpp v. Stroudsburg Municipal Authority, 540 Pa. 391, 396, 658 A.2d 333, 335 (1995); Niehaus v. Delaware Valley Medical Ctr., 429 Pa. Super. 119, 121, 631 A.2d 1314, 1315 (1993), citing Scott v. Extracorporeal Inc., 376 Pa. Super. 90, 94, 545 A.2d 334, 336 (1988); Marsh v. Boyle, 366 Pa. Super. 1, 530 A.2d 491 (1987).

Accordingly, this court finds that no issue of material fact needs to be decided, and therefore, the defendant’s motion for summary judgment as to the plaintiff’s claim of age discrimination is granted. The plaintiff is strongly encouraged to pursue his administrative options if he is still able to do so.

B. Count II — Breach of Human Resource Policy and Procedure Manual Relating to Seniority

On this count, the plaintiff relies upon the same paragraph of the defendant’s human resources policy and procedure manual quoted in the previous section. As discussed above, these terms are unsupported by consideration nor could the plaintiff have reasonably relied on the . terms of this manual. Luteran v. Loral Fairchild Corp., 455 Pa. Super. 364, 371, 688 A.2d 211, 216 (1997); see also, footnote 2 of this opinion, Martin v. Capital Cities Media Inc., 354 Pa. Super. 199, 215, 511 A.2d 830, 836 (1986), citing E.A. Farnsworth, Contracts §532 (1982); Reese v. Tom Hesser Chevrolet — BMW, 413 Pa. Super. 168, 604 A.2d 1072 (1992). Therefore, these terms are unenforceable as a matter of law. Accordingly, the defendant’s motion for summary judgment as to Count II is granted.

C. Count III — Equitable Relief

The plaintiff asserts in Count III that he has no plain, adequate, or complete remedy at law to redress the wrongs allegedly committed against him by the defendant. As such, the plaintiff asks the court for reinstatement as well as other non-equitable {i.e., monetary) relief. Because this is a request for relief, the court will reserve its consideration thereof until a final decision on the merits has been reached.

D. Count IV — Fraud/Fraudulent Misrepresentation

The plaintiff next argues that the representations made by the defendant in the termination letter, namely concerning rehiring based on seniority were made falsely and with knowledge of its falsity which induced him to rely on said representations to his detriment. In Pennsylvania, in order to maintain a cause of action for fraudulent misrepresentation, there must be (1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention by the maker to induce the recipient to act, (4) justifiable reliance on the part of the recipient, and (5) damage to the recipient proximately resulting therefrom. Edmondson v. Zetusky, 674 A.2d 760, 765 (Pa. Commw. 1996). The alleged fraudulent misrepresentation, however, was made concerning a promise to perform a future action. Specifically, the termination asserted that the plaintiff would be rehired should certain specified conditions occur in the future. As the defendant correctly points out, it is well-established in Pennsylvania that the breach of a promise to do something in the future is not actionable in fraud. Shoemaker v. Commonwealth Bank, 700 A.2d 1003, 1006 (Pa. Super. 1997). As such, the defendant’s motion for summary judgment as to Count IV of the plaintiff’s amended complaint is granted.

E. Count V — Negligent Misrepresentation

The plaintiff argues in Count V that the same representation forming his allegation of fraudulent misrepresentation also gives rise to the tort of negligent misrepresentation. “Negligent misrepresentation requires proof of: (1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.” Bortz v. Noon, 556 Pa. 489, 500, 729 A.2d 555, 561 (1999). The elements of negligent misrepresentation differ from intentional misrepresentation in that the misrepresentation must concern a material fact and the speaker need not know his or her words are untrue, but must have failed to make a reasonable investigation of the truth of these words. Id. Also, all actions in negligence require the existence of a duty owed by the defendant to the plaintiff. Id.

The defendant argues that the only distinction between fraudulent misrepresentation and negligent misrepresentation is the state of mind of the reported actor. Further, because (under the defendant’s theory) the breach of a promise to do something in the future is not actionable in fraud, so too is it not actionable under the theory of negligence. The defendant, however, fails to support this proposition with any case law, nor has the court found this to be supported by further research. Negligent misrepresentation does differ from fraudulent misrepresentation in two significant ways. First, fraud arises out of knowing or reckless behavior, whereas negligence arises out of behavior lacking reasonable care. Woodward v. Dietrich, 378 Pa. Super. 111, 548 A.2d 301 (1988). Second, the tort of negligence is provable by a preponderance of the evidence, whereas fraud is provable by clear and convincing standard. See generally, In re Hancock, 719 A.2d 1053, 1056 (Pa. Super. 1998). The theory that a future promise is not actionable under a negligence theory is unsupported. As such, there does appear to be an issue of fact as to the elements of this count. Accordingly the defendant’s motion for summary judgment as to negligent misrepresentation is denied.

F. Count VI — Breach of Implied Duty of Good Faith and Fair Dealing

The plaintiff’s final count asserts that the defendant’s act of promoting a co-employee of the plaintiff, junior in seniority to the plaintiff, after he was terminated is contrary to the implied covenant of good faith. As discussed supra, the plaintiff was an employee “at-will.” As such, this court cannot see how the implied covenant of good faith or any covenant was violated when he was terminated by the defendant. See generally, DiBonaventura v. Consolidated Rail Corp., 372 Pa. Super. 420, 430, 539 A.2d 865, 870 (1988). Further, Pennsylvania law does not recognize a duty of good faith and fair dealing in an employment “at-will” contract concerning the termination of employment. Banas v. Matthews International Corporation, 348 Pa. Super. 464, 502 A.2d 637 (1985). Moreover, an employee cannot, as a matter of law, maintain an action for breach of an implied duty of good faith and fair dealing if the underlying claim is for termination of an “at-will” employment relationship. Donahue v. Federal Express Corp., 753 A.2d 238 (Pa. Super. 2000). Accordingly, the defendant’s motion for summary judgment as to plaintiff’s Count VI is granted.

IV. Conclusion

It is the inescapable conclusion of law that the plaintiff is an “at-will” employee. The “at-will” employment rule has been law in Pennsylvania since the nineteenth century. In recent years, the rule has been sharply criticized because it gives employers too much discretion and allows them to take unfair advantage of employees. Banas v. Matthews International Corp., 348 Pa. Super. 464, 479, 502 A.2d 637, 644 (1985). Cases such as the one sub judice are the reason for this criticism. Instantly, the court is deeply troubled and frustrated by the actions of the defendant Community Medical Center. Specifically, the defendant asserted, both in its policy manual and its letter of discharge, that the plaintiff would be rehired in a manner in which the defendant evidently had no intention of implementing. To hold out this promise, merely for the purposes of ostensibly appearing concerned about their ex-employees’ welfare smacks of bad faith, if not in law then in spirit. Sadly, in Pennsylvania, the criticism of the “at-will” rule has not matured into a rejection. Further, to use a policy and procedures manual to dictate terms of employment by employer to an employee and then to allow that same employer not to be bound by the same document at employer’s whim and caprice and on a case-by-case basis shocks this court’s conscience. Such unilateral policy manual manipulation and interpretation by the employer creates a one-sided atmosphere unless an employee’s violation of the manual’s terms is not actionable since the employer can also ignore the manual as it sees fit. Certainly, an employer should not be allowed to use policy manual violations for cause discharge if they can then choose to ignore those same manual provisos that protect an employee when they, at their whim, choose to so act. This unilateral policy manual enforcement shocks this court’s sense of justice and makes most understandable some employees’ feeling that they need labor union protection.

Because of this onerous and one-sided “at-will” rule, most of the counts brought forth by the plaintiff are quite unfortunately non-recoverable as a matter of law thus mandating this court’s granting of summary judgment as to most counts. Count I, age discrimination is nonrecoverable because the plaintiff has not exhausted all of his administrative remedies. Count II, breach of human resources policy and procedure manual is non-recoverable because the law in Pennsylvania is clear. Employee manuals are not binding on employers unless they clearly assert, in unambiguous language, an intent to be bound even though they hold their employees to the same manuals they ignore. Count IV, fraudulent misrepresentation is non-recoverable because here the law in Pennsylvania is also clear. Fraud is not recoverable on a promise to perform a future act. Finally, Count VI, breach of implied duty of good faith and fair dealing is non-recoverable because there is no such duty in an at-will employment contract concerning termination of employment.

The plaintiff has two viable claims as a matter of law. The plaintiff may proceed on Count V, negligent misrepresentation and Count III, the claim for equitable relief. As such, the defendant’s motion for summary judgment as to these counts is denied.

An appropriate order will follow.

ORDER

And now, to wit, June 22,2000, after consideration of the learned written and oral arguments of counsel and in accordance with the foregoing memorandum, it is hereby ordered and decreed that the defendant’s motion for summary judgment to Count I (age discrimination), Count II (breach of human resources policy and procedure manual), Count IV (fraudulent misrepresentation) and Count VI (breach of implied duty of good faith and fair dealing) is granted and Counts I, II, IV and VI of the plaintiff’s amended complaint are dismissed with prejudice.

It is further ordered and decreed that defendant’s motion for summary judgment as to Counts V (negligent misrepresentation) and Count III (equitable relief) is denied. Plaintiff will be allowed to proceed on Counts III and Count V of his amended complaint.

      . Every employment relationship (both “at-will” and otherwise) is contractual in nature. “At-will” relationships are terminable at will by both the employer and employee because both parties presumably entered into the relationship with this term in mind. Darlington v. General Electric, 350 Pa. Super. 183, 504 A.2d 306 (1986), overruled on other grounds, (citations omitted).

      . In the recent case of Luteran, the Superior Court could find no intent on the part of the employer to create a legally binding contract from a handbook which contained no language to that effect. The court further expounded that it would be unreasonable to conclude that the handbook legally committed the employer to discharge its employees only for cause.


author: SALUS, J.,

text:
    Nikoo v. Hunt
    C.P. of Montgomery County,
    no. 96-07680.

      Thomas F. Reilly, for plaintiffs.

      Victor M. Verbeke, for defendant.
    September 21, 2000
   SALUS, J.,

Plaintiffs appeal a July 20, 2000 order of this court denying their motion for removal of nonsuit. In their concise statement of matters complained of on appeal, plaintiffs frame the issue on appeal as follows: “whether the trial court erred in granting defendant, Michael Hunt’s oral motion for nonsuit, finding that reasonable minds could not disagree that plaintiffs failed to establish that plaintiff, Nancy Nikoo suffered serious injury and/or serious impairment of a bodily function in accordance with the applicable statutes pertaining to limited tort liability.” For the reasons contained herein, this court did not commit error and the July 20, 2000 order should be affirmed.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff Nancy Nikoo was involved in an automobile accident on September 19, 1995. As the accident occurred, Nancy felt an electrical type of shock going through her neck and into her back and shoulders. She then drove to the Chelthenham police station to fill out a report and then drove herself to Abington Hospital, where she was given medication for muscle spasms. Three days after her accident, Nancy sought treatment from Dr. Richard Cautilli for pain in her neck. In her first month of treatment, Nancy received four epidural injections and received physical therapy at Holy Redeemer Sports Medicine. Dr. Cautilli never restricted Nancy from any activity.

In June 1997, Nancy began treatment with Dr. Michael Rubenstein (a neurologist). Dr. Rubenstein treated Nancy four times, the last being December 1997. At the first visit, Dr. Rubenstein made no objective findings of any functional limitation in the neck nor did he notice any limitation of motion of the neck. The only finding was of tenderness in Nancy’s neck. The remainder of the examinations this day was normal, outside of the soft tissue injury. Dr. Rubenstein ordered a battery of tests on Nancy, all of which came back negative.

At each of Nancy’s next three visits, Dr. Rubenstein’s physical examinations were normal or unchanged. His records contain no references to pain or tenderness in the neck, and are without clear evidence of radiculopathy. At Nancy’s final visit in December, she indicated that she was doing reasonably well with some improvement in overall activity. Dr. Rubenstein never restricted Nancy from any activities. Dr. Rubenstein never determined a level of disability and never made a statement that Nancy’s neck function was impaired. Also, during the course of Nancy’s physical therapy, she was able to begin cooking, cleaning and playing tennis. At trial, Dr. Rubenstein opined that Nancy had suffered a chronic soft tissue injury and that she may intermittently feel better for periods of time but that Nancy’s condition was permanent. Dr. Rubenstein never testified that the soft tissue injury, to a reasonable degree of medical certainty, was caused by the motor vehicle accident in September 1995.

MRIs taken on October 9, 1995 and April 22, 1997 revealed mild degenerative disc disease at C5-6. This condition was the product of wear and tear and was not due to the accident. An EMG taken on May 14, 1997 showed increasing irritability but was not tied to any cervical radiculopathy from the accident. Dr. Ruben-stein reviewed the cervical spine MRIs and opined that they revealed essentially arthritic changes or spurring of bone. He also reviewed the EMG testing and opined that he could not demonstrate any clear evidence of radiculopathy based on his gross examination.

ANALYSIS

“A motion for . . . nonsuit allows a defendant to test the sufficiency of a plaintiff’s evidence and may be entered only in cases where it is clear that the plaintiff has not established a cause of action.” Burke v. Buck Hotel Inc., 742 A.2d 239, 246 (Pa. Commw. 1999). In making this determination, the plaintiff must be given the benefit of all evidence favorable to him, together with all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Id. A judgment of nonsuit is properly entered if a plaintiff has not introduced sufficient evidence to establish the elements necessary to maintain an action. Id. It is the duty of the trial judge to determine, prior to sending the case to the jury, whether or not this burden has been met. Id.

Turning to the case at hand, under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1705(d), a plaintiff cannot recover for pain and suffering or other noneconomic damages unless she sustained a “serious injury.” 75 Pa.C.S. §1702 defines “serious injury” as “a personal injury resulting in death, serious impairment of body function or permanent disfigurement.” As death and disfigurement are not at issue, the inquiry turns on whether Nancy suffered “serious impairment of body function.” As set forth in Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998):

“The ‘serious impairment of a body function’ threshold contains two inquiries:

“(a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?

“(b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment. ... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.” Id., 553 Pa. at 447-48, 719 A.2d at 740. (citations omitted)

Two cases decided after Washington v. Baxter help provide further insight into what constitutes “serious impairment of bodily function.” McGee v. Muldowney, 750 A.2d 912 (Pa. Super. 2000) and Robinson v. Upole, 750 A.2d 339 (Pa. Super. 2000). In McGee, appellant failed to present objective medical evidence as to the degree of any impairment and extent of any pain suffered during the years preceding disposition of the case. Id. at 915. Appellant’s mere subjective allegations, in the absence of medical testimony, did not permit a finding that appellant suffered the requisite “serious injury.” Id. This case can be analogized to McGee, in that there is no objective medical evidence as to the degree of any impairment and extent of any pain suffered. Dr. Rubenstein never testified, to a reasonable degree of medical certainty, that the soft tissue injury constituted an “impairment of body function” or was a “serious impairment” in that it would prevent Nancy from engaging in her daily activities. Summarily, Dr. Rubenstein merely testified that Nancy suffered a soft tissue injury that would continue to intermittently bother her. The injury, however, was never medically qualified in terms of impairment or seriousness of impairment, as required by McGee and Washington.

This case differs from Upóle in that, in Upóle, medical testimony demonstrated that the plaintiff suffered from chronic pain syndrome, fibromyalgia, and a sleep impairment, all resulting from the accident. Id. at 341. Plaintiff’s doctors in Upóle placed affirmative restrictions on the plaintiff’s activities. Id. Here, as relates to the accident, Nancy only suffered a soft tissue injury. Also, no restrictions were placed on Nancy. Upóle involves well-documented medical testimony regarding the extent of appellant’s injuries, followed by restrictions from the treating physicians on appellant’s activities. Conversely, the medical testimony here only identifies a vague soft tissue injury, followed by no medical restrictions. Thus, plaintiffs have failed to show that the impairment of the bodily function was serious.

Furthermore, plaintiffs failed to demonstrate what bodily function was impaired because of injuries sustained in this motor vehicle accident. Dr. Rubenstein never testified that the soft tissue injury, to a reasonable degree of medical certainty, was caused by the motor vehicle accident in September 1995. Nancy had injuries to her neck before the accident. She was injured in an automobile accident in 1988. She was in an automobile accident in 1990 where she complained of neck pain. Neither of these accidents was explained in any detail to Dr. Rubenstein. Nancy also experienced injuries to her right shoulder and neck while playing tennis before the accident. Nancy slipped and fell at a meat market on December 22, 1997, causing her an increase in pain. Nancy’s treatment with Dr. Rubenstein was for the soft tissue injury in toto. His testimony does not identify how the different accidents related to the injury. Instead it merely shows that the injury is present.

CONCLUSION

In light of Washington and the cases that follow it, nonsuit was properly granted. First, plaintiffs did not demonstrate that there was serious impairment of a bodily function. Second, plaintiffs failed to demonstrate what bodily function was impaired because of injuries sustained in the accident. For this reason, the court’s order of July 20, 2000 should be affirmed.

      . N.T. 5/4/00 at 188.

      . N.T. 5/4/00 at 188.

      . N.T. 5/4/00 at 191-192.

      . N.T. 5/4/00 at 227.

      . N.T. 5/4/00 at 194-95.

      . N.T. 5/4/00 at 239.

      . N.T. 5/4/00 at 244.

      . N.T. 5/3/00 at 98, 115, 124, 125.

      . N.T. 5/3/00 at 141.

      . N.T. 5/3/00 at 109.

      . N.T. 5/3/00 at 109-11 (motor strength intact, deep tendon reflexes in the upper extremities symmetric and intact, no compression of the nerve root or major nerve injury, no muscle spasm).

      . N.T. 5/3/00 at 112.

      . N.T. 5/3/00 at 150-52.

      . N.T. 5/3/00 at 151-53.

      . N.T. 5/3/00 at 126.

      . N.T. 5/3/00 at 142.

      . N.T. 5/3/00 at 141, 155.

      . N.T. 5/3/00 at 157-58.

      . N.T. 5/3/00 at 110, 127-28.

      . N.T. 5/3/00 at 142-43.

      . N.T. 5/3/00 at 143.

      . N.T. 5/3/00 at 143-44.

      . N.T. 5/3/00 at 108.

      . N.T. 5/3/00 at 15-16.

      . N.T. 5/3/00 at 129.

      . N.T. 5/3/00 at 130.

      . N.T. 5/3/00 at 131.

      . N.T. 5/3/00 at 130-31.

      . N.T. 5/3/00 at 148-49.

      . N.T. 5/3/00 at 152.