author: SCHMEHL, J.,

text:
    Wing Pointe Corporation v. Pennsylvania Liquor Control Board

      February 26, 2002
    C.P. of Berks County,
    no. 59-MD-01.

      John A. DiGiamberardino, for appellant.

      Michael R Bigley, for appellee.
   SCHMEHL, J.,

On July 10,2000, appellant, Wing Pointe Corp., filed an application with the Pennsylvania Liquor Control Board for a new restaurant liquor license for an existing restaurant located in Perry Township, Berks County, Pennsylvania. Appellant filed their application for the restaurant liquor license under the then-resort area exception to the then-quota requirements of the Pennsylvania Liquor Code (or Licensing Act), 47 P.S. §4-461(b). The Bureau of Licensing of the board, pursuant to authority granted by the Liquor Code (47 P.S. §4-464), timely advised the appellant that a hearing would be held on the appellant’s application. On October 10, 2000, a hearing on the application was held before a board hearing examiner in Allentown, Pennsylvania. By order dated January 10, 2001, the board refused appellant’s application for a liquor license. In its opinion dated March 16, 2001, the board concluded that the quota for retail licenses in Perry Township had been filled and that no liquor license could be granted under the resort area exception because Perry Township is not a resort area and even if it were, the appellant failed to demonstrate actual need for an additional retail license. The board based its decision in part on the alleged failure of the appellant to show that Perry Township has a seasonal influx of a large number of transient visitors.

On December 20, 2000, Act 141 of 2000 was signed into law by Governor Tom Ridge. This new law amended sections 461 and 468 of the Liquor Code by eliminating the quota system (and the resort area exception) as it was formerly applied on a municipality basis and substituted, instead, a county wide quota, including countywide transfer of retail licenses. This law took effect on February 18,2001.

On January 23, 2001, appellant appealed the board’s decision to the Court of Common Pleas, Berks County, Pennsylvania. A hearing de novo was held before this court on April 16, 2001. At said hearing, appellant provided the court with testimony relating to the need for an additional liquor license in Perry Township. Instead of relying on the reasoning of the board, the appellee argued that the new law applied and that the application should be denied since appellant had not attempted to purchase a license from an existing holder outside of Perry Township and have it moved into the township with the permission of the board of supervisors.

On November 29, 2001, this court issued findings of fact and conclusions of law, overruling the decision of the Liquor Control Board and granting the appellant a new restaurant liquor license under the resort area exception to the Liquor Code.

This appeal followed. Pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, this court requested and received a concise statement of matters complained of on appeal. On December 12, 2001, the appellant filed this statement alleging that the court committed error by doing the following:

“(1) granting a resort license to a facility simply because it is in the environs of a resort area.

“(2) determining that Perry Township is a resort area within the meaning of the Pennsylvania Liquor Code.

“(3) determining that a need exists for an additional restaurant liquor license in Perry Township.”

This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure and for the following reasons we request that the instant appeal be denied:

The Trial Court Did Not Err in Finding That Perry Township Is a Resort Area Because of Its Proximity To Richmond Township and Maxatawny Township

Although the liquor license quota for Perry Township is currently exceeded, the board has the authority to increase the number in any municipality which, in the opinion of the board, is located within a resort area. 47 PS. §4-461 (b); Pennsylvania Liquor Control Board v. Spring Gulch, 87 Pa. Commw. 395, 487 A.2d 472 (1985). The term “resort area” is not defined by the Liquor Code. Appellate courts, however, have held that a “resort area” is characterized by a population increase in the geographical area surrounding the premises during certain seasons such that the usual number of liquor licenses within the geographical area is not adequate to serve the needs of the people and that it must appear that the area’s facilities are used primarily by temporary residents or tourists and not by area residents. Pennsylvania Liquor Control Board v. Bankovich, 94 Pa. Commw. 93, 502 A.2d 794 (1986).

In order to be granted a liquor license under the resort area exception, an applicant must prove that: (1) the proposed license premises are located within a resort area; and (2) a need exists for an additional license within that area. In re Application of Asprey Inc., 693 A.2d 257 (Pa. Commw. 1997), allocatur denied, 549 Pa. 723, 702 A.2d 1061 (1997); Pennsylvania Liquor Control Board v. Ripley, 107 Pa. Commw. 425, 529 A.2d 39 (1987); In re Appeal of Brandywine Valley Inn Inc., 53 Pa. Commw. 203, 417 A.2d 823 (1980).

In order to be classified as a resort area the municipality and its immediate environs must have a seasonal influx of a large number of temporary inhabitants and suitable accommodations for the transient population. Pennsylvania Liquor Control Board v. Spring Gulch, 87 Pa. Commw. 395, 487 A.2d 472 (1985). Furthermore, there must be specific evidence which establishes the following: (1) the number and size of the recreational facilities in and around the municipality; (2) their proximity to the applicant’s place of business; (3) the seasons during which the facilities are used; and (4) the actual number of non-residents occupying them. In re Application of El Rancho Grande Inc., 78 Pa. Commw. 592, 467 A.2d 1381 (1983); Appeal of Birchwood Center Inc., 43 Pa. Commw. 517, 403 A.2d 155 (1979).

In the case at bar the appellant has presented sufficient evidence that Perry Township is located within a resort area. The population of Perry Township in 1990 was 2,516 persons. The Berks County Heritage Center is located approximately eight miles away from the licensed premises. It contains an old cemetery, a wagon works factory, and a canal history center. In 1999, approximately 2,800 persons toured the Heritage Center. Regular visitors come from Berks County and surrounding counties, plus some visitors come from outside this area.

Blue Marsh Lake is located approximately 10 miles away from the proposed licensed premises. It is a park area with recreation facilities such as trails, hunting, wildlife viewing, picnicking, swimming, boating, fishing, and winter activities. The website for Blue Marsh Lake reports over 1 million annual visitors.

Crystal Cave is located 3.5 miles away from the proposed licensed premises. Besides the cave itself, which is open for seasonal tours, it has a miniature golf course, gift shop, ice cream parlor, and theatre. Approximately 7,500 persons visited Crystal Cave from March until November in 1998.

Also about 3.5 miles from the proposed licensed premises is the Berkleigh Country Club, which is the site of the annual First Union Betsy King Classic LPGA Golf Tournament held each September for three to five days. Approximately 87,000 people attend that event. The appellant knows that some people who are members of the club come to stay at the lodge during the Betsy King Open.

Hawk Mountain Sanctuary is located approximately nine miles away from the premises and is a 2,400-acre park and bird sanctuary. It offers a hiking trail, visitor’s center, bookstore, and theatre. It is open year round, but most of its visitors (approximately 70,000) come in the summer and fall.

The Kutztown Pennsylvania German Festival is an annual event held for one week each summer in Kutztown, approximately seven miles away. It is a folk festival including antiques and collectibles, food, live entertainment, workshops, seminars, and quilt/craft auctions. Annual attendance estimates range between 47,000 and 69,000 people.

The Mid-Atlantic Air Museum is located approximately nine miles away. It is an aviation history and aircraft museum, attracting about 21,000 people annually. In the summer, airplane rides are available and there is a World War II Commemorative Weekend held each year.

Reninger’s Antiques and Farmer’s Market is located approximately seven miles away in Kutztown. It features a Saturday flea market and an antique and collectible market, a Friday and Saturday farmer’s market, and a large antique extravaganza three times a year.

The Rodale Institute is located nine miles away in Kutztown. It is a 333-acre organic farm which holds tours from May through October. It attracts about 25,000 annual visitors. Clover Hill Vineyards and Winery in Breinigsville is approximately nine miles away. It holds winery tours in the summer and has a gift shop.

The Cut and Thrust Museum is located approximately seven miles away in Kutztown. It is a museum and sales gallery exhibiting edged weapons and other military items. It is open four days a week during the summer. East Penn Rail Excursions is also located in Kutztown about seven miles away and offers one-hour scenic train rides.

Kutztown University of Pennsylvania is located approximately seven miles away and has cultural and sporting events held weekly throughout the academic year that are open to the public and families of the 8,200 students.

Leesport Farmer’s Market is located about five miles away in Leesport. It has a farmer’s market, a flea market, and a livestock auction occurring only on Wednesdays. In addition, a one-day craft show is held five times a year.

The Pennsylvania Dutch Folk Culture Center is located nine miles away in Lenhartsville. It is a seasonal tourist center containing a one-room schoolhouse, a log cabin, a folk museum, and a library.

WK&S Railroad is located about nine miles away in Kempton. Tours of the steam tourist short-line railroad are held from May to October.

Based upon the seasonal influx of transient visitors for the numerous local attractions in the area, it appears that there is specific evidence that qualifies Perry Township as a resort area within the meaning of the Liquor Code. Therefore, this court did not find that Perry Township was a resort area merely because it is adjacent to both Maxatawny Township and Richmond Township which already qualify as resort areas in the eyes of the PLCB and the courts. Rather, this court based its decision on the evidence appellant presented which consisted of the number and size of the attractions in the area, the proximity of the attractions to the appellant’s premises, the seasons during which the attractions are used, and the specific numbers of non-residents who utilize these attractions. Some of these attractions are the same as those used by the PLCB and the courts in reaching the decisions that Maxatawny Township and Richmond Township are resort areas.

The Trial Court Did Not Err in Finding There Is a Need for an Additional License in Perry Township

In establishing the necessity for the grant of an additional license, the licensee applicant must show a “substantial need in relation to the pleasure, convenience and general welfare of the persons who would make use of the facility.” In re Application of Asprey Inc., 693 A.2d 257, 260 (Pa. Commw. 1997), allocatur denied, 549 Pa. 723, 702 A.2d 1061 (1997), quoting Janes v. Liquor Control Board, 43 Pa. Commw. 165, 168, 402 A.2d 1093, 1095 (1979). In assessing necessity, courts consider: “(1) the needs of the persons who will use the facility; (2) the number and types of existing establishments in the area; and (3) whether the persons to be served differ from those served by existing licensees.” In re Application of Asprey Inc., 693 A.2d 257, 260 (Pa. Commw. 1997), allocatur denied, 549 Pa. 723, 702 A.2d 1061 (1997); Pennsylvania Liquor Control Board v. Spring Gulch Inc., 87 Pa. Commw. 395, 487 A.2d 472 (1985).

In short, the question is “whether an applicant will provide a needed service which existing licensees cannot.” In re Application of Asprey Inc., 693 A.2d 257, 260 (Pa. Commw. 1997), allocatur denied, 549 Pa. 723, 702 A.2d 1061 (1997); In re Appeal of Brandywine Valley Inn Inc., 53 Pa. Commw. 203, 417 A.2d 823 (1980). Additionally, “an applicant must show that the current licensees cannot meet the need caused by the influx of transients in such resort areas.” In re Application of Asprey Inc., 693 A.2d 257, 260 (Pa. Commw. 1997), allocatur denied, 549 Pa. 723, 702 A.2d 1061 (1997); Pennsylvania Liquor Control Board Appeal, 82 Pa. Commw. 142, 474 A.2d 738 (1984).

The appellant has presented sufficient evidence that there is a need for a restaurant which can serve alcoholic beverages with meals in Perry Township, Berks County, Pennsylvania. Throughout the municipality, Cousin’s Pub is the only other licensed establishment. Cousin’s Pub is a sports bar located approximately six miles north of the proposed licensed premises. Cousin’s Pub is primarily a sports bar/take out style restaurant that serves mostly pizza, subs, sandwiches, wings, hamburgers, fried foods, and pasta. At peak times, patrons must wait to be seated at this restaurant. The appellant made a good faith attempt to purchase the Cousin’s Pub’s liquor license but was informed that this license was not available for sale.

Appellant’s restaurant menu includes a variety of moderately and reasonably priced meals including steaks, fish, chickens, quail, and pasta. The restaurant is open and in operation year-round serving breakfast and lunch Tuesday through Sunday, and dinner on Friday and Saturday evenings. Furthermore, the restaurant is located near the appellant’s 180-acre plot of ground which is used primarily as a hunting preserve on a reservations basis only. Various hunting activities include hunts for small game, clay pigeon shoots, and trap shoots. Reservation and fees for the hunting sessions and shoots are made in a different building located 0.25 miles away from the proposed licensed premises. Most people who come to the preserve are in the 50-year-old range, and some bring their children and spouses. Clearly, Cousin’s Pub and the other establishments in the surrounding area cannot provide the same level of services, the same type of menu, and the unique atmosphere along with the large seating capacity of the Quail’s Nest Restaurant. The appellant has demonstrated that there is a necessity to the area since it proposes to be open on a year-round basis and is conveniently located for all visitors and vacationers to the area.

Furthermore, the intent of the resort area exception is to regulate and restrain the sale of liquor, not to promote it. In re Appeal of Penn State Faculty Club, 33 Pa. Commw. 320, 381 A.2d 1017 (1978). The legislature sought to provide more licenses in an area that would have a seasonal increase in population so that the usual number of licenses would not be inadequate. Appellant in this case is not looking to promote the sale of liquor as much as providing his hunting patrons and other tourists with a glass of wine or other alcoholic beverages with their dinner. In conclusion, the court’s decision should be affirmed as appellant has clearly demonstrated a need for this type of restaurant.


source: Caselaw Access Project

author: WALLITSCH, J.,

license: Public Domain

text:
    Yoder v. American Travellers Life Insurance Company

      January 24, 2002
    C.P. of Lehigh County,
    no. 1999-C-1820.

      Robert J. Magee, for plaintiffs.

      Steven K. Hujfer and Platte B. Moring III, for defendants.
   WALLITSCH, J.,

Before this court is defendants’ motion for summary judgment, which raises the same issues raised in defendants’ motion for judgment on the pleadings. We addressed defendants’ motion for judgment on the pleadings by order and memorandum opinion dated December 13, 2000, in which we granted judgment on the pleadings to Count m (unfair trade practices) and denied judgment to Counts I (declaratory judgment) and II (bad faith). Judgment was denied to Counts I and II because the record before us was incomplete. Defendants filed the instant motion for summary judgment and argue that the record has been supplemented and all necessary information is now before the court to make a determination in their favor on all counts.

Plaintiffs brought this action after plaintiff Jean F. Yoder was denied benefits under her “Supplement nursing home and health care policy” issued on August 17, 1989, by defendant, American Travellers Life Insurance Company, now known as Conseco Senior Health Insurance Company and Conseco Inc. Mrs. Yoder was confined to a nursing home in 1998 and subsequently made a claim under her insurance policy. Defendants denied her claim on the basis that she did not meet the condition in her policy that requires a three-day hospital stay within 30 days of the confinement to a nursing home. Plaintiffs do not dispute that the “hospital stay” condition was not met, but argue that said policy provision was not enforceable at the time Mrs. Yoder was confined to a nursing home because of subsequent legislation. Effective February 13, 1993, Pennsylvania legislation prohibited the inclusion of any exclusion in a long-term care policy of insurance, which conditions the payment of benefits upon prior institutionalization. 40 PS. §991.1108, enacted December 15,1992 (prior institutionalization statute). Plaintiffs assert that Mrs. Yoder was entitled to benefits under her insurance policy pursuant to the Prior Institutionalization Statute.

Defendants argue that the imposition of the statute to a policy delivered four years before the statute was enacted violates Article I, Section 10 of the United States Constitution, and Article I, Section 17 of the Constitution of the Commonwealth of Pennsylvania, which provide that no law may impair the obligation of contracts. Plaintiffs attempt to side-step defendants’ constitutional argument by asserting that Mrs. Yoder’s insurance policy was renewed after the statute was enacted, and such renewals constitute “new contracts” which would be modified by operation of law by the Prior Institutionalization Statute. In our prior memorandum opinion, we analyzed plaintiffs’ reliance on Golden Rule Insurance Co. v. Insurance Department, 163 Pa. Commw. 509, 641 A.2d 1255 (1994), appeal denied, 540 Pa. 606, 655 A.2d 994 (1995), for the proposition that each renewal constitutes a new contract. We determined that Golden Rule was not as broad as plaintiffs’ interpretation and pointed out that the Commonwealth Court discussed the creation of a new contract only when there was a renewal “at a different premium.” We stated: “if there were no increased premiums imposed between the date of the enactment of the statute and Mrs. Yoder’s nursing care, plaintiffs will be hard-pressed to claim that a new contract existed, even under the language of Golden Rule. We may end up revisiting this issue at a later stage in this case.” Memorandum opinion, p. 5.

We are now revisiting this issue with the information that was not presented to us at the time the motion for judgment on the pleadings was decided. Specifically, plaintiffs responded to defendants’ request for admissions, and admitted that “[tjhere was no increase in renewal premium rates for policy no. 142814 between the date of the enactment of 40 P.S. §991.1108 in 1992 and plaintiff’s, Jean F. Yoder, requirement for nursing home care in 1998.” Defendants’ request for admissions, no. 9.

Plaintiffs responded to defendants’ motion for summary judgment by asserting that although a changed premium cannot form the basis that there was a “new” contract in this case, an issue of whether any change, modification, addition or restriction to the contract occurred since 1992 still existed and prohibited the court from granting defendants’ motion for summary judgment. As a result of plaintiffs’ argument, we held this matter in abeyance and directed plaintiffs to answer defendants’ interrogatories 32 and 33. Defendants’ interrogatory no. 32 required plaintiffs to state, “whether, at any time after the initial date of the policy in question there were any amendments, riders or changes to the terms and conditions of a policy including the exclusions.” Plaintiffs answered “no” to interrogatory no. 32, and further answered “not applicable” to interrogatory 33, which asked specific details regarding any such amendment, rider or change to the terms and conditions of the policy. Plaintiffs filed a supplemental brief after answering defendants’ interrogatories, and conceded that “on the record now before this court, the plaintiff will be unable to raise any issue of a material fact to establish that there was a ‘new’ contract at any time after the enactment of the change in Pennsylvania law.” Without any modifications to the policy after the statute became effective, the plaintiffs are left arguing that no “new” contract existed, but that the prior institutionalization statute should apply to Mrs. Yoder’s policy because her policy was “renewed” on an annual basis. However, as we previously addressed in our memorandum opinion, the legislature, if they had wanted, could have specifically set forth, as they did in other statutes, that the law should apply to insurance policies issued or renewed after a certain date. The legislature did not provide that the law should be applied to renewals, and instead, applied the instant statute to “all policies delivered or issued for delivery in this Commonwealth on or after the effective date of this article.” 40 P.S. §991.1115. Accordingly, the renewals of the insurance policy did not warrant the applicability of the Prior Institutionalization Statute.

Plaintiffs also argued in the alternative that a novation occurred when American Travellers Life Insurance Company became Conseco Senior Health Insurance Company and Conseco Inc. Plaintiffs argued that the novation constituted a “new” contract and as a result, the Prior Institutionalization Statute applied to the policy as a matter of law after the novation. Plaintiffs’ argument is rebutted, however, because defendants attached the authorized affidavit of Mark Shaw, senior vice president of Conseco Services LLC to its motion for summary judgment. Mr. Shaw’s affidavit states that Conseco Senior Health Insurance Company is the same entity as American Travellers Life Insurance Company and there was never any assignment or assumption of the policy or any other policy of insurance originally issued under the name of American Travellers Life Insurance Company. Based on Mr. Shaw’s affidavit it is clear that the American Travellers Life Insurance Company changed its name only. A novation did not occur and a “new” contract was not created that would apply the Prior Institutionalization Statute to Mrs. Yoder’s insurance policy.

As a result of the additional information provided to this court in conjunction with defendants’ motion for summary judgment, we find that there is no genuine issue of material fact. Plaintiffs are not able to establish that the Prior Institutionalization Statute can be applied to the already existing insurance policy, and therefore, no benefits are owed to plaintiffs under Mrs. Yoder’s policy. Defendants did not act in bad faith in denying Mrs. Yoder’s claim for benefits because the denial was based on a condition set forth in her insurance policy that was not met. Accordingly, defendants are entitled to judgment as a matter of law.

ORDER

And now, January 24,2002, upon consideration of the defendants’ motion for summary judgment, plaintiffs’ supplemental brief relating to defendants’ motion for summary judgment and defendants’ reply brief, and for the reasons set forth in the opinion attached hereto, it is hereby ordered that said motion is granted, and judgment in the above matter is entered in favor of defendants.

      . The insurance policy provided on its coverage page, “[t]his policy is guaranteed renewable .... It may be kept in force by the timely payment of premiums. We cannot cancel this policy as long as you pay the premiums.”


author: BALDWIN, J.,

text:
    Renda Broadcasting Corp. v. Lafarge Corp.

      May 2, 2001
    C.P. of Allegheny County,
    no. GD98-3513.

      John A. Renda, for plaintiff.

      Paul David Burke, for defendant.
   BALDWIN, J.,

The appellant, Lafarge Corporation appeals from the order of this court dated February 27,2001, granting the motion to enforce settlement filed by the appellee, Renda Broadcasting Corporation. Lafarge filed a statement of matters complained of on appeal with this court pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. Therein, Lafarge asserts that this court committed three errors of law.

Lafarge initially argues that this court committed an error of law under Rule 206.7 of the Pennsylvania Rules of Civil Procedure by granting Renda’s motion to enforce settlement. Lafarge also contends that this court committed an error of law by granting Renda’s motion to enforce settlement since there never was a final settlement agreement to memorialize the parties’ compromise, settlement and general release for the litigation. Lastly, Lafarge argues that this court committed an error of law by granting Renda’s motion to enforce settlement, in that Lafarge has consistently maintained that if there is a final settlement between the parties, it is embodied in the compromise, settlement, and general release document dated April 17, 2000.

A review of the pleadings in this case reveals that on February 27,1998, Renda instituted this equitable action against Lafarge, and the City of Pittsburgh Urban Redevelopment Authority. More specifically, the complaint filed in equity states, inter alia, that Renda demands that the chancellor grant to it the remedy of specific performance from Lafarge with respect to an alleged option to purchase certain real property known as “Nine Mile Run.”

Lafarge had leased this specific parcel of land to Renda. These parties then renewed the lease for this property on or about May 5, 1992. The URA subsequently acquired this property from Lafarge, through a sale. Next, Renda notified Lafarge and the URA of its intention to exercise its purchase option for this property under the lease. However, neither Lafarge, nor its successor, the URA, recognized Renda’s right concerning the purchase option for the sale of this property. As a result, the defendants refused to sell the property to Renda. This suit followed.

In addition, the complaint in equity states that Renda demands specific performance from the URA, as a successor of Lafarge, with respect to this alleged option to purchase “Nine Mile Run.” Alternatively, Renda seeks money damages against the defendants for an alleged breach of contract.

After the complaint was filed, the adversarial parties entered settlement negotiations in good faith to attempt to reasonably resolve the dispute, and to avoid protracted litigation. During the settlement negotiations, the parties were unable to reach a global settlement. Thereafter, the respective parties pursued settlement on a piecemeal basis. Renda and the URA eventually agreed on a mutual settlement resolving their particular disputes in regard to this litigation. That settlement agreement provided that the litigation would be terminated by and between these two parties only, in exchange for the URA providing Renda with a different location for its business operations. Lafarge, however, was not a party to that settlement agreement. The enforcement of that settlement agreement is not at issue here.

The settlement negotiations between Renda and Lafarge experienced a minor setback when Renda’s legal counsel, Frederick Egler Jr., withdrew. Nonetheless, Renda and Lafarge both continued with their settlement efforts, despite the change in Renda’s legal representation. Finally, on March 15, 2000, Renda and Lafarge agreed to a complete settlement of the litigation for $495,000. The enforcement of this settlement agreement is at issue here.

Following this mutual settlement of the litigation between Renda and Lafarge, the parties attempted to memorialize the binding terms of this negotiated agreement in separate drafts of a compromise, settlement and general release. (True and correct copies of these separate drafts dated April 17, 2000 and June 15, 2000, were attached as exhibits “A” and “B” to Lafarge’s petition to enforce settlement agreement.) The parties’ first and second drafts of the settlement agreement dated April 17, 2000 and June 15, 2000, respectively, do not differ in any material respects as to either party’s actual understanding of the terms of the mutual agreement reached on March 15, 2000. The parties, however, disagree over which of the two noted drafts accurately summarizes the complete and entire agreement consummated between them.

Regardless of the apparent lack of consensus with respect to the written reduction of the terms of the settlement agreement, the enforceability of the parties’ mutual agreement is not altered or vitiated. Stated another way, Lafarge does not dispute that Renda accepted its offer to settle this litigation for $495,000. The order of this court dated February 27, 2001, granting Renda’s motion to enforce settlement should therefore be affirmed.

The law of this Commonwealth establishes that an agreement to settle a legal dispute between the parties is favored. Compu Forms Control Inc. v. Altus Group Inc., 393 Pa. Super. 294, 305, 574 A.2d 618, 624 (1990) (Judicial policy favors settlements of lawsuits). Under Pennsylvania law, the judicial enforcement of a settlement agreement is governed by principles of contract law. McDonnell v. Ford Motor Co., 434 Pa. Super. 439, 447, 643 A.2d 1102, 1105 (1994). In order for a settlement agreement to be enforced, the agreement must possess all of the requisite elements of a contract. See e.g., Gogel v. Blazofsky, 187 Pa. Super. 32, 36, 142 A.2d 313, 315 (1958).

Applying the above precepts to the case at bar, as we must, this court finds that Renda and Lafarge reached a valid settlement agreement for the instant litigation because the agreement of March 15,2000, possessed all of the requisite elements of a valid contract, as a matter of law. Moreover, this court concludes that Renda voluntarily agreed to a complete and final settlement and discontinuance of all claims against Lafarge at docket no. GD98-3513. This settlement agreement also included the termination of the option to purchase the subject real estate in exchange for the lump-sum payment of $495,000 by Lafarge as valuable consideration to Renda for this compromise, settlement, and general release. Thus, Lafarge’s initial argument must fail.

This court did not err in granting Renda’s motion to enforce settlement as initially argued by Lafarge. Rule 206.7 of the Pennsylvania Rules of Civil Procedure, in pertinent part, provides that:

“Rule 206.7 Procedure After Issuance Of Rule To Show Cause ...

“(b) If an answer is filed raising no disputed issues of material fact, the court on request of the petitioner shall decide the petition on the petition and answer.

“(c) If an answer is filed raising disputed issues of material fact, the petitioner may take depositions on those issues,.... If the petitioner does not do so, the petition shall be decided on petition and answer and all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of this subdivision.” Pa.R.C.P. 206.7 (West 2001).

Here, a rule to show cause was issued to Lafarge to show why Renda is not entitled to have its motion to enforce settlement granted. Lafarge filed an answer and then Renda filed a praecipe for argument with this court regarding this motion. Thereafter, the parties argued the merits of their respective positions to this court. By order of this court dated February 27, 2001, this court granted Renda’s motion. This appeal followed.

Based on the arguments of counsel and the responsive pleadings, Lafarge has failed to convince this court that no settlement agreement, i.e., contract, was ever reached between it and Renda. Accordingly, Renda is entitled to the specific relief it has requested.

Lafarge alleges that there were several material issues pertaining to the litigation that were not covered by the agreement in question. Specifically, Lafarge points out that Renda had allegedly admitted that the settlement negotiations were premised upon a complete settlement and final termination of the litigation by and between the parties. Upon closer scrutiny of the pleadings, this court is unable to find what material issues were not covered by the settlement agreement for purposes of our analysis. The alleged disputed items, as stated by Lafarge, are immaterial to the settlement agreement between these two parties.

Clearly, the alleged matters do not substantively affect the rights or liabilities of either Renda or Lafarge. In our opinion, they are collateral in nature. Since the parties’ agreement covers all of the material points, there is no basis, in fact or in law, to set aside the settlement agreement in this case. Thus, Lafarge’s initial argument lacks merit.

Contrary to Lafarge’s second argument, this court did not err in granting Renda’s motion to enforce settlement. On this point, Lafarge asserts that there was no settlement agreement on March 15,2000. This court disagrees.

In support of this contention, Lafarge argues that Renda could not agree with it on the precise terms of the settlement of this litigation, as manifested by the subsequent correspondence of counsel for purposes of memorializing the proposed settlement agreement dated April 17, 2000. Lafarge, however, fails to explain how this court is empowered to disregard the valid contract formed between it and Renda on March 15, 2000, when Renda accepted Lafarge’s offer to settle this case.

Moreover, the alleged unsuccessful attempts of counsel to reduce the terms of the parties’ settlement agreement here to a writing does not permit this court to ignore the relevant material facts which are not in dispute. Mazzella v. Koken, 559 Pa. 216, 221, 739 A.2d 531, 536 (1999) (A court must enforce the terms of a contract where the parties have agreed on all of the essential terms even if they have not yet formalized the agreement in writing); see also, Field v. Golden Triangle Broadcasting Inc., 451 Pa. 410, 305 A.2d 689, 693 (1973). A settlement agreement must be enforced by a court where, as here, the agreement contains all of the requisites for a valid contract, as a matter of law. McDonnell, 434 Pa. Super. 439, 447, 643 A.2d 1102, 1105 (1994); Blazofsky, 187 Pa. Super. 32, 36, 142 A.2d 313, 315 (1953).

The pleadings establish, as argued by counsel for Renda, that on March 15,2000, Renda accepted the settlement offer made by Lafarge through counsel. In so doing, a valid contract was formed between the parties. Contrary to Lafarge’s position, the subsequent correspondence and drafts between the attorneys for the two parties cannot be construed as either a rejection or a counteroffer of the agreed quid pro quo. In fact, this court is unable to find any assertion by either party’s counsel that would essentially say that there was “no deal.”

The pleadings further reveal that the parties reached a “meeting of the minds” on all of the material terms and subject matter of the settlement agreement in this case. As such, this court must disagree with Lafarge’s proposition as to this point. Under the circumstances, this court cannot conclude that there was no settlement agreement reached between these parties. Hence, Lafarge’s argument is flawed.

Lafarge’s third argument, in essence, is no different than its previous ones. Simply put, Lafarge erroneously perceives that the parties’ failure to reduce or memorialize this agreement, in some way, establishes that there never was a settlement. Again, this court disagrees.

In this case, the proposed drafts of the agreed upon settlement dated April 17, 2000, and June 15, 2000, are not “counteroffers” to the settlement agreement of March 15, 2000. These drafts merely attempt to summarize the terms of the settlement agreement already reached by Lafarge and Renda. This court, therefore, finds that the parties had arrived at a valid, mutual settlement agreement on March 15,2000, and that the parties’ respective understandings of the terms of this settlement agreement do not vary in any material respects.

In summary, the pleadings establish that on March 15, 2000, Renda agreed to accept $495,000 from Lafarge as good and valuable consideration in exchange for a complete compromise, settlement and general release of all claims against Lafarge involving the subject real property in this case. Renda has agreed to the said final compromise, settlement, and general release. Lafarge, however, has not paid Renda.

Lafarge has failed to show that there was no settlement between it and Renda. The facts of record establish that Lafarge, and not Renda, failed to comply with the settlement agreement of March 15,2000. Therefore, this court concludes that Lafarge’s final argument must also fail.

For these reasons, the order of this court dated February 27, 2001, granting Renda’s motion to enforce settlement should be affirmed.


author: DI BONA, J.,

text:
    Van Zandt v. Holy Redeemer Hospital

      December 18, 2001

      Martin A. Durkin, for plaintiff.

      Paul A. Bechtel, for defendant Holy Redeemer Hospital.

      Israel N. Eisenberg, for defendant Bergnes.
   DI BONA, J.,

This is an appeal taken by the defendants, Holy Redeemer Hospital and Manuel A. Bergnes M.D., from this court’s denial of post verdict motions. This case was tried before this court and a jury in January of 2001. After a two-day trial, the jury rendered a verdict in favor of the plaintiff and against the defendants in the amount of $300,000. Negligence was apportioned 75 percent against the hospital and 25 percent against the doctor. Post verdict motions were filed by both defendants and were denied on May 8, 2001. Plaintiff’s motion for delay damages was granted on the same date and the verdict was molded to reflect the inclusion of delay damages in the amount of $23,798.39. These appeals followed.

The plaintiff filed the instant negligence action against the defendants claiming that the defendants violated the express wishes of the plaintiff and the plaintiff’s decedent when it permitted the Lion’s Eye Bank of the Greater Delaware Valley to harvest the eyes of the plaintiff’s decedent against the plaintiff’s express refusal to allow such a procedure. In plaintiff’s amended complaint, plaintiff stated that she was the only child of the decedent, that she had refused to allow the harvesting of her mother’s eyes following her death, and that the issuance of a post-mortem report by the defendants indicating that the decedent’s eyes had been removed was negligent conduct which caused plaintiff emotional damages. The evidence adduced at trial indicated that the Eye Bank had contacted the plaintiff and requested the donation of her deceased mother’s eyes. Plaintiff, due to religious beliefs and other personal considerations, refused to permit the harvesting of her mother’s eyes. Several months later, the plaintiff ordered and received a copy of the postmortem report, signed by the defendant, Bergnes, which indicated that the decedent’s eyes had, in fact, been harvested. Thereafter, the defendant, Bergnes, signed an amended post-mortem report, authored by legal counsel to the defendant hospital, which directly contradicted the original report and stated that the eyes had not been examined or removed. Plaintiff claimed that she had suffered nightmares and other psychological damages upon learning that her mother’s eyes had been harvested against her instructions. The jury found that the conduct of the defendants was a substantial factor in causing plaintiff’s emotional injuries and awarded plaintiff the sum of $300,000.

On appeal, the defendants’ raise numerous issues of alleged trial court error, the first of which is that this court erred in failing to grant defendants ’ motion for judgment n.o.v. In the recent case of Kit v. Mitchell, 771 A.2d 814 (Pa. Super. 2001) the Superior Court held that:

“Our review of a trial court’s order granting judgment n.o.v. is limited to determining whether the trial court abused its discretion or committed an error of law that controlled the outcome of the case. Campo v. St. Luke's Hospital, 755 A.2d 20, 23 (Pa. Super. 2000). Our Supreme Court summarized the relevant considerations regarding the grant of judgment n.o.v. as follows:

“In reviewing a motion for judgment n.o.v., the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, [a] judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Further, a judge’s appraisement of evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury’s deliberations.

“There are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first a court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

“Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1007 (1992). (citations and quotation marks omitted) With these principles in mind, we turn to the issues appellant presents to this court.” 771 A.2d at 818.

In the instant case, defendants contend that they owed no duty to the plaintiff for which they could have been negligent in the performance of. Defendants also contend that the plaintiff did not prove that her mother’s eyes had actually been removed. In viewing the evidence in the light most favorable to the plaintiff as verdict winner, this court is mindful of the precedent established in Papieves v. Kelly, 437 Pa. 373, 263 A.2d 118 (1970) wherein it was held:

“As indicated above, section 868 of the Restatement provides that one who ‘wantonly mistreats’ or, acting without privilege, ‘intentionally withholds’ the body of a decedent is liable in tort to the member of the decedent’s family who is entitled to the disposition of the body. Comments a and b to section 868 state that such a cause of action ‘exists although there has been no harm except such harm to the feelings as is inseparable from the knowledge of the defendant’s conduct... The cause of action is primarily for mental suffering caused by the improper dealing with the body. It includes also the right to recover damages for physical harm, resulting from such mental suffering.’

“Other jurisdictions have recognized claims for mental suffering caused by the defendant’s wanton or intentional mishandling of the body of the decedent. Such mishandling of a body has been found to encompass, inter alia, the unlawful interment or disinterment of a body, intentional interference with a burial, the wanton mutilation or unauthorized embalming of a corpse, and other intentional, reckless or wanton acts likely to cause severe emotional distress. See Sanford v. Ware, 191 Va. 43, 60 S.E.2d 10 (1950); Gostkowski v. Roman Catholic Church, 262 N.Y. 320, 186 N.E. 798 (1933); Stephens v. Waits, 53 Ga. App. 44, 184 S.E. 781 (1935); Alderman v. Ford, 146 Kan. 698, 72 P.2d 981 (1937); Sworski v. Simons, 208 Minn. 201, 293 N.W. 309 (1940); and Brownlee v. Pratt, 77 Ohio App. 533, 68 N.E.2d 798 (1946). After a review of the cases in this area, one leading authority has concluded that a distinct majority of the jurisdictions hold that ‘where the defendant, not privileged by statute, intentionally or recklessly invades another’s interest in the body of a deceased relative by conduct which it is highly probable will cause acute and poignant emotional distress, he becomes liable therefor although no other interest of the plaintiff is invaded.’ Harper and James, The Law of Torts, §9.4, p. 675 (1956). While the decisions in other jurisdictions have frequently spoken of the next of kin’s property or quasi-property rights in the body of the decedent, the underlying, and we believe real, issue is the right of a decedent’s nearest relatives to protection against intentional, outrageous or wanton conduct which is peculiarly calculated to cause them serious mental or emotional distress. See Stephens v. Waits, supra; Gadbury v. Bleitz, 133 Wash. 134, 233 P. 299 (1925); and Prosser, ‘Intentional Infliction of Mental Suffering: A New Tort,’ 37 Michigan Law Review 874 (1939).” 437 Pa. 377-78, 263 A.2d at 120.

Plaintiff established at trial that she was the only child and relative of the decedent. She also established, through the admission of the defendant’s in the first post-mortem report, that the decedent’s eyes had been removed. Viewed in the light most favorable to the plaintiff, this evidence was sufficient to submit the case to the jury. The defendants were not entitled to judgment as a matter of law and the verdict for the plaintiff was not beyond peradventure. The defendants’ motions for compulsory nonsuit, directed verdict and for judgment n.o.v. were, therefore, denied.

Next, the defendants contend that the trial court erred in failing to award a mistrial, and thereafter a new trial, due to the improper references to the word “insurance” during the trial. Specifically, during a videotaped deposition of the defendant, Bergnes, the plaintiff’s counsel, questioned the witness on his willingness to amend the post-mortem report after “your insurance company” issued a report in this matter. (See N.T. 1-4-01 p. 48.) Both counsel agreed to edit this reference out during the replay of the video to the jury; however, it was not edited out as agreed, and the jury heard the actual reference to insurance. The plaintiff’s counsel again referred to the word insurance in his closing argument when referring to risk managers as “the insurance people.” (See N.T. 1-5-01 p. 227.) In the case of Price v. Guy, 558 Pa. 42, 735 A.2d 668 (1999), the Supreme Court reviewed the standards relating to the references to insurance in negligence suits wherein it stated:

“The Superior Court correctly ascertained the general rule that, in a negligence suit, evidence that a defendant carries liability insurance is inadmissible, with certain narrow exceptions, due to the fact that it is prejudicial to the defendant and generally irrelevant to the real issues in the case. See Trimble v. Merloe, 413 Pa. 408, 410, 197 A.2d 457, 458 (1964).” 735 A.2d at 671. (emphasis in original)

This court found that the first reference to the word insurance was inadvertent and was mistakenly shown to the jury in the videotape. This reference was cured by the court when it gave the jury a curative instruction on January 4, 2001 at page 51. In addition, the reference to “insurance people” was not a direct reference to the defendants carrying liability insurance coverage and was, therefore, permitted. This issue of alleged trial court error was, therefore, denied.

Next the defendants contend that this court erred in denying the defendants’ motion in limine regarding the presentation of damages evidence by the plaintiff for emotional harm. Defendants contend that due to pretrial rulings of Judge Arnold New, the rule of concurrent jurisdiction prohibited the plaintiff from introducing evidence on the types of emotional damages suffered by the plaintiff. Specifically, Judge New ruled that plaintiff’s claims for punitive damages and for negligent infliction of emotional distress were dismissed. Judge New did not dismiss plaintiff’s claims against the defendants for negligence. At trial, the plaintiff sought to prove the types of emotional damages suffered after learning that her mother’s eyes had been harvested against her instructions. Plaintiff was permitted to testify about being devastated at the news, having trouble sleeping and suffering from recurrent nightmares. This type of emotional harm is the proper subject of damages for the negligent conduct of the defendants. Under the holding of Papieves v. Kelly, supra, and the Restatement of Torts, proof of this type of damages is proper and admissible. The defendants’ motion in limine was properly denied.

The defendants also assert that the trial court erred in denying a motion in limine regarding the plaintiff’s production of evidence and proceeding on the theory that the defendants had “covered up” the removal of the decedent’s eyes. Defendants contend that the motion should have been granted since Judge New had denied the plaintiff’s request to amend the complaint to include a cause of action for the alleged “cover-up.” At trial the plaintiff was permitted to present evidence that the defendant, Bergnes, had prepared an initial post-mortem report which indicated that the decedent’s eyes had been removed. At the insistence of the defendant’s legal counsel, the post-mortem report was amended to indicate that the decedent’s eyes had not been removed, and Dr. Bergnes was asked to sign this report. It was clear to this court and to the jury that one of these reports was false. Whether one refers to this type of deceitful conduct as covering up or as misleading, or as blatantly false, the plaintiff was properly permitted to introduce evidence of this conduct. Its admission was proper to prove the defendants’ negligence and was not prohibited under the concurrent jurisdiction rule and the pretrial ruling of Judge New.

Finally, the defendants claim that this court erred in failing to grant the remittitur requested by the defendants. In the recent case of Goldberg ex rel. Goldberg v. Isdaner, 780 A.2d 654, 662-63 (Pa. Super. 2001), the Superior Court reviewed the standards for granting a remittitur and held that:

“In its last two interrelated claims, Jeanes Hospital argues the trial court erred in failing to either grant its motion for a new trial or remittitur since the verdict was clearly excessive, not warranted by the evidence and the product of sympathy.

“The court is not warranted in setting aside, reducing, or modifying verdicts for personal injuries unless unfairness, mistake, partiality, prejudice, or corruption is shown, or the damages appear to be grossly exorbitant. The verdict must be clearly and immoderately excessive to justify the granting of a new trial. The amount must not only be greater than that which the court would have awarded, but so excessive as to offend the conscience and judgment of the court. Toogood v. Rogal, 764 A.2d 552, 559 (Pa. Super. 2000).

“A remittitur may only be granted where the trial court determines that the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption and articulates the reason supporting a reduction of the verdict. Haines v. Raven Arms, 536 Pa. 452, 640 A.2d 367, 369 (1994), supplemented by, 539 Pa. 401, 652 A.2d 1280 (1995). The trial court cannot simply grant a remittitur, it can suggest or recommend one to the affected party, and, if refused, the court must grant a new trial. Refuse Management System Inc. v. Consolidated Recycling & Transfer Systems Inc., 448 Pa. Super. 402, 671 A.2d 1140, 1149 (1996). Once the trial court determines that the jury award is under the law and articulates the reasons for its determination, the award winner has the option of accepting the recommended remittitur or, in the alternative, choosing to undergo a new trial. Id. It is within the discretion of the trial court to grant a new trial because the verdict is excessive. Petrasovits v. Kleiner, 719 A.2d 799, 806 (Pa. Super. 1998). We will not disturb the trial court’s refusal to grant a new trial on the grounds that the verdict is excessive unless the court clearly abused that discretion. ur

In the instant case, there is no evidence that the jury’s verdict was the product of partiality, prejudice, mistake or corruption. This court cannot find that the award of $300,000 in damages is grossly exorbitant under the facts of the instant case. The motion for remittitur was, therefore, denied.

For all of the foregoing reasons, the defendants’ post verdict motions were denied. The verdict of the jury should stand accordingly.


author: RUDNITSKY, Member,

text:
    In re Anonymous Nos. 40 D.B. 00 and 80 D.B. 00
    Disciplinary Board Docket nos. 40 D.B. 00 and 80 D.B. 00.
    September 24, 2001
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

RUDNITSKY, Member,

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

I. HISTORY OF PROCEEDINGS

On April 10, 2000, Office of Disciplinary Counsel, petitioner, filed a petition for discipline against [ ], respondent in these proceedings. The petition charged respondent with violations of Rules 203(b)(2) and 217(b), Pa.R.D.E., and Rules of Professional Conduct 8.4(d), 1.3, and 1.4(a). On June 13, 2000, petitioner filed an additional petition for discipline against respondent. That petition charged respondent with violating Rules of Professional Conduct 1.4(a), 1.5(b) and 1.16(d). On that same date, petitioner filed a motion to join petitions for discipline. By order of July 13,2000, the Disciplinary Board granted petitioner’s motion.

By notice dated August 16,2000, the matter was scheduled for hearing before Hearing Committee [ ] on September 15, 2000. Respondent received notice by certified mail sent August 30, 2000. Respondent was personally served with the notice of hearing on September 8, 2000.

A disciplinary hearing was held on September 15, 2000, before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Petitioner was represented by [ ], Esquire. Respondent did not appear.

The committee filed a report on April 9,2001 and concluded that respondent violated the rules as charged in the petitions. The committee recommended that respondent be suspended for a period of one year and one day.

No briefs on exceptions were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of May 23, 2001.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, bom in 1956, was admitted to practice law in the Commonwealth of Pennsylvania in 1985, and his registration address is [ ]. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) By Supreme Court order dated November 9,1998, effective December 9,1998, respondent was transferred to inactive status pursuant to Rule 219, Pa.R.D.E., and has remained on inactive status since the effective date of that order.

40 D.B. 00

(4)In accordance with Rules 208(a)(2) and (3) Pa.R.D.E., it was determined that respondent should receive two separate informal admonitions as a result of misconduct involving his clients, [A] (file reference no. [ ] and [B] (file reference no. [ ]).

(5) By notice dated January 27, 2000, respondent was directed to appear before Chief Disciplinary Counsel on Wednesday, February 23, 2000, at 11 a.m., at [ ], to receive the informal admonitions.

(6) Chief Disciplinary Counsel’s notice further informed respondent that pursuant to Rule 208(a)(6), Pa.R.D.E., respondent had 20 days to demand as of right that a formal proceeding be instituted against him before a Hearing Committee in the appropriate disciplinary district and that in the event of such demand, respondent need not appear for the administration of the informal admonitions.

(7) Chief Disciplinary Counsel’s letter was personally served upon respondent on January 20, 2000.

(8) Despite Chief Disciplinary Counsel’s notice that respondent had 20 days in which to demand as of right that a formal proceeding be instituted against him before a Hearing Committee, respondent made no such demand that a formal proceeding be instituted.

(9) On February 23, 2000, the date set for the administration of the informal admonitions in the office of the Chief Disciplinary Counsel, respondent failed to appear.

(10) By letter dated March 3, 2000, respondent was directed by Chief Disciplinary Counsel to provide, within 10 days of the date of that letter, “good cause” for his failure to appear for the informal admonitions on February 23, 2000.

(11) Chief Disciplinary Counsel’s March 3, 2000 letter was personally served upon respondent on March 3, 2000.

(12) Respondent did not reply to Chief Disciplinary Counsel’s letter of March 3, 2000.

80 D.B. 00

(13) On about August 3, 1997, [C] retained respondent to represent him with regard to a possible civil action concerning his wrongful discharge by his employer and to recover amounts owed to him by his employer pursuant to his employment contract.

(14) Respondent had never before represented [C].

(15) Respondent did not communicate to [C], in writing, the basis or rate of the fee which he was charging him, either before he was retained or within a reasonable time after commencing the representation.

(16) From August 3,1997 through November 10,1997, [C] paid respondent a total of $1,250 for his services.

(17) Thereafter, despite frequent contacts by [C], respondent took no action of record with regard to the civil action.

(18) By letter to [C] dated January 8, 1998, respondent apologized for failing to “get back” to [C], stating that his messages were “sort of ‘buried’ on the voice mail,” and briefly outlined how he wished to proceed on [C’s] behalf. (PE 14; N.T. 43.)

(19) By letter to [C] dated January 26, 1998, respondent apologized for the length of time it was taking “to complete all of the work in [[C’s]] case. . . .” (PE 15; N.T. 43-44.)

(20) From that time until about the spring of 1998, [C] made numerous calls to respondent concerning the status of his legal matter, but respondent failed to return his calls.

(21) In about the spring of 1998, without notice to [C], respondent closed his office.

(22) [C] then retained other counsel, Attorney [D], to represent him with regard to his civil action.

(23) Respondent did not return to [C] the unearned portion of the $1,250 which [C] paid to him for his services.

(24) [C] received reimbursement of the entire amount paid by him to respondent from the Pennsylvania Lawyers Fund for Client Security.

(25) On March, 16,1999, due to respondent’s transfer to inactive status effective December 9,1998, petitioner filed an application for appointment of conservator pursuant to Rule 321 of the Pennsylvania Rules of Disciplinary Enforcement in the Court of Common Pleas of [ ] County, which was docketed at no. [ ] of 1999, administrative docket.

(26) On March 23, 1999, [E], Esquire, was appointed conservator for respondent’s files.

(27) The Disciplinary Board paid a total of $6,325 to Attorney [E] for his services as conservator, and $7,441.54 to the [ ] County Bar Association for expenses incurred by it with regard to the conservatorship.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:

Petition for Discipline at No. 40 D.B. 00

(1) Respondent’s failure to appear for his informal admonitions on February 23, 2000 was a willful failure to do so and is grounds for discipline pursuant to Rule 203(b)(2), Pa.R.D.E.

(2) Because he did not contest the determination of an informal admonition, respondent is deemed to have violated the following rules of Professional Conduct and Rules of Disciplinary Enforcement:

(a) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(b) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(c) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

(d) Pa.R.D.E. 217(b) — A formerly admitted attorney shall promptly notify all clients who are involved in pending litigation or administrative proceedings and the attorney for each adverse party, of the disbarment, suspension, or transfer to inactive status and consequent inability of the formerly admitted attorney to act as an attorney after the effective date of the disbarment, suspension or transfer to inactive status.

Petition for Discipline at No. 80 D.B. 00

(1) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(2) R.P.C. 1.5(b) — When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.

(3) R.P.C. 1.16(d) — Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as refunding any advance payment of fee that has not been earned.

IV. DISCUSSION

This matter is before the Disciplinary Board on consolidated petitions for discipline. At no. 40 D.B. 00, it was determined in accordance with Rules 208(a)(2)(3), Pa.R.D.E., that respondent, [ ], should receive two separate informal admonitions as a result of misconduct involving two clients.

Respondent, after due notice, was directed to appear before Chief Disciplinary Counsel on February 23,2000 to receive the informal admonitions. Respondent was informed that he had the right to request formal proceedings in lieu of his appearance for the admonitions. Respondent did not request formal proceedings.

On February 23, 2000, respondent failed to appear as directed. Subsequently, by letter of Chief Disciplinary Counsel dated March 3, 2000, respondent was asked to show good cause for his failure to appear. This letter was personally served on respondent. Respondent did not reply.

In the matter at no. 80 D.B. 00, respondent was retained by [C] in August of 1997 regarding a possible wrongful discharge cause of action. Respondent failed to advise [C] of the basis of his fee at the initial meeting or anytime thereafter. [C] paid $1,250 to respondent for his services by three separate checks.

Respondent contacted [C] by letter on two occasions in January of 1998, after which time [C] heard nothing further from respondent. Without notice to [C], respondent closed his office in the spring of 1998. [C] retained other counsel and eventually was reimbursed $1,250 by the Pennsylvania Lawyers Fund for Client Security.

Prior to these instances of misconduct, respondent had no record of discipline. However, his actions herein clearly demonstrate a complete disregard for the disciplinary system and his law license. Respondent engaged in client misconduct, closed his law office without notice to any of his clients, failed to appear for two informal admonitions and failed to appear for his disciplinary hearing. Respondent has shown no remorse for his misconduct and his actions belie his interest in retaining his license to practice law. By failing to appear at the disciplinary hearing, respondent squandered an opportunity to set forth his side and perhaps to persuade the board that there was some logical explanation for his conduct. Without any input from respondent, the board is constrained to recommend that respondent be suspended for one year and one day. The board cannot permit respondent to continue practicing law and causing harm to members of the public. This suspension requires that respondent petition for reinstatement before he is allowed to practice, thus ensuring that respondent will have to answer for his conduct at that time if he wishes to practice law in the future.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be suspended from the practice of law in the Commonwealth of Pennsylvania for a period of one year and one day.

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

ORDER

And now, November 20, 2001, upon consideration of the report and recommendations of the Disciplinary Board dated September 24, 2001, it is hereby ordered that [respondent] be and he is suspended from the bar of this Commonwealth for a period of one year and one day, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: FORD, J.,

text:
    Callum v. Scott

      C.P. of Lehigh County,
    no. 1998-C-562V.

      John R. Vivian Jr., for plaintiff.

      Mark H. Scoblionko, for defendants.
    June 5, 2002
   FORD, J.,

In January of 2001, defendants filed their “second motion in limine and motion for summary judgment of defendants/motion to strike objections to deposition of Marc E. Lippman M.D.” On May 23, 2002, we entered an order granting some aspects of the motion and denying others. We explain our order in this opinion.

There are three parts to this motion. In the first, defendants seek an order precluding the testimony of plaintiff’s expert, Warren Walkow M.D., on the ground that his proffered opinions do not comply with the standard for admissibility of expert testimony stated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), adopted by Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). If the court had precluded the testimony of Dr. Walkow, the plaintiff argued that she. was entitled to summary judgment. Dr. Walkow was the only causation liability expert identified by the plaintiff so, without that testimony, plaintiff would be unable to present competent evidence that the defendants caused injury to the plaintiff. In our May 23 order, we found that Dr. Walkow’s proffered testimony met the required threshold, and we denied summary judgment.

In the second aspect of the motion, the defendants sought an order sustaining defense counsel’s objections to questions posed by plaintiff’s counsel to the defense liability expert, Marc Lippman M.D., during his trial deposition. In our May 23 order, we sustained the objections. Further, the defense sought to preclude the plaintiff from using certain portions of the plaintiffs medical records for any purposes at trial. We denied this request.

Third, defense counsel moved to dismiss the plaintiff’s objections to questions posed by defense’counsel during the trial deposition of Dr. Lippman. We denied this request and sustained plaintiff’s objections to the questions because the questions were designed to elicit opinions that were beyond the scope of Dr. Lippman’s expert report.

According to the complaint, the 35-year-old plaintiff discovered a hard area in her right breast in January of 1996. On January 18, 1996, she presented herself to the defendant, Carolyn S. Scott M.D., for a gynecological exam and told the doctor what she discovered. In response, Dr. Scott denied such statement was made to her. It was Dr. Scott’s position that she conducted a breast examination. After that, she noted in the plaintiff’s record: “Breasts: significant fibrocystic changes. Patient states no change. No dominant masses, discharge, adenopathy.” The plaintiff claimed that Dr. Scott advised her to take vitamins and to avoid caffeine. No further testing was ordered at that time.

On March 18,1996, the plaintiff had another visit with Dr. Scott. She again complained of a hard area in her right breast. Dr. Scott made the following entry in the plaintiff’s medical chart: “Right breast hard entire anterior breast with enlarged node right axilla.” Dr. Scott ordered testing which revealed infiltrating ductal carcinoma of the right breast on March 20, 1996.

On August 16,1996, the plaintiff had nodular involvement and underwent a right modified radical mastectomy after undergoing chemotherapy and radiation.

The plaintiff contended that the delay on the part of Dr. Scott in initiating diagnostic studies between January 18,1996, and March 18,1996, altered her treatment regimen and increased her chances for breast cancer recurrence.

We first explain why we permit Dr. Warren Walkow, an oncologist, to testify in accord with his expert reports.

Dr. Walkow’s first report was dated August 17,1998. In it, Dr. Walkow indicated that the malignancy was present and discoverable by mammography on January 18,1996. Had it been discovered then, the tumor would have been smaller. It would not have had positive lymph nodes or inflammatory signs. The course and treatment of it would have been more favoráble if contrasted with the course and treatment upon its discovery two months later. According to the doctor, “two months did make a difference.”

Defense counsel was correct that Dr. Walkow does not point to any methodology, medical literature or scientific data to support these opinions.

The defendants filed an earlier motión in limine and motion for summary judgment raising the same issues, namely, the deficiencies in Dr. Waikow’s initial report. After argument, we entered an order on November 17, 2000, sustaining the defense position but permitting the plaintiff until December 11, 2000,. to produce a supplemental report in an effort to cure deficiencies in the first report. A supplemental report dated December 5, 2000, was timely filéd.

In the supplemental report, Dr. Walkow explained his statement that the malignancy was present and discoverable by mammography on January 18,1996. Dr. Walkow accepted as true that the patient first noticed an abnormality in her right breast in January of 1996. It was small and near the superior aspect of the right breast. The later-diagnosed breast carcinoma developed at the same location. Dr. Walkow stated in his report:

“To dissociate that abnormality from the development of breast carcinoma in the same location requires the postulation of an implausible coincidence, i.e., that a de novo malignant growth arose immediately after her presentation on January 18,1998 (sic) and did so in the same location. The scientific basis relied on is the negligible likelihood of this coincidence.”

In the supplemental report, Dr. Walkow also wrote that mammography would have discovered the malignancy in January of 1996 because of the “widely accepted true positive rate of 90 percent for demonstration of malignancy by use of modalities of mammography.”

Finally, Dr. Walkow explained the statement in the earlier report that “two months would have made a difference” by extrapolating data pertaining to lung cancer studies.

Plaintiff’s counsel described Dr. Walkow as an oncologist in private practice for more than 25 years. Defense counsel pointed out that he was not board certified in oncology. The parties have not presented further information revealed in discovery about the background of Dr. Walkow. However, it appeared uncontroverted that an aspect of the conclusions reached by Dr. Walkow was his experience in treating breast cancer patients. Rather than arguing that there was no evidence that Dr. Walkow called upon his experience to reach his conclusions, defense counsel argued that experience alone cannot be basis for these opinions contained in the reports. Rather, the defense argued that, in this increased risk of harm case, the plaintiff must satisfy the rigorous Frye standard.

Under the Frye standard, proof of legal causation requires an expert opinion that sets forth a conclusion or uses a methodology generally accepted in the relevant scientific community. Blum v. Merrell Dow Pharmaceuticals Inc., 564 Pa. 3, 764 A.2d 1 (2000); and Blum v. Merrell Dow Pharmaceuticals Inc., 705 A.2d 1314 (Pa. Super. 1997).

In that this is an increased risk of harm case, this first issue is resolved by consideration of Smith v. Grab, 705 A.2d 894 (Pa. Super. 1997).

The complaint of the plaintiff in this case was that Dr. Scott caused a delay in diagnosis of inflammatory breast cancer for approximately two months. Plaintiff alleged that the proper diagnosis should have been made in January of 1996, with appropriate treatment modalities immediately following, rather than two months later in March of 1996. Plaintiff claimed that the delay in diagnosis increased her risk of harm in regard to treatment modalities selected, cancer spread, the risk of recurrent cancer and diminished life expectancy.

Smith v. Grab also involved an alleged failure to timely diagnose inflammatory breast cancer. At trial, the plaintiff’s expert, Dr. Singer, was asked if it was his opinion that a significant delay in the diagnosis of inflammatory breast cancer may have “potentially catastrophic consequences for... patients.” Dr. Singer replied that it would because the cancer grows rapidly. In the view of the Superior Court, this testimony did not include the “magic words” but it still provided sufficient evidence for an increased risk of harm/shortened life expectancy claim. Id. at 900.

At trial, Dr. Singer testified that the bases for his opinions were his general knowledge, education, reading, and experience during 25 years as a practicing oncologist. He testified that, in his experience, inflammatory breast cancer rapidly grows and is capable of moving from one stage to another within weeks or months if not treated.

The Superior Court held that the trial court erred in striking Dr. Singer’s testimony and erred in entering a nonsuit in favor of the defense. The trial court struck the expert’s testimony due to a lack of authoritative basis for his opinion, which is the same argument made here by the defense as to Dr. Walkow’s opinions.

According to the Superior Court, expert testimony of Dr. Singer should have been admitted in Smith v. Grab despite the complete absence of supporting literature. The fact that it was an increased risk of harm claim was significant. As then President Judge Emeritus Orillo stated,

“Dr. Singer’s failure to cite an article or text on point goes to the weight of his testimony, not its admissibility. The basis for Dr. Singer’s testimony was his knowledge, education, reading and experience of 25 years as a practicing oncologist. Based upon such experience, he was able to offer an opinion that the delay in Mrs. Smith’s diagnosis increased her risk of a shortened life expectancy. See Joyce [v. Boulevard Physical Therapy Rehab. Ctr. P.C.], 694 A.2d [648,] 656 [(Pa. Super. 1997)] (this court determined that it was not necessary to have an expert doctor cite to treatises and medical periodicals to support his articulation of the standard of care; his 30 years in the field of orthopedic medicine was sufficient to support an opinion regarding the relevant standard of care).” Smith v. Grab, supra, 705 A.2d at 900-901.

Dr. Walkow, like Dr. Singer in Smith v. Grab, set forth evidence of “increased risk of harm.” Hence, under Smith v. Grab, it becomes the function of the jury, “to balance probabilities and decide whether [a physician’s] negligence was a substantial factor in bringing about the harm.” Id. at 900, citing Hamil v. Bashline, 481 Pa. 256, 273, 392 A.2d 1280, 1288-89 (1978). See also, Thomas v. The West Bend Company Inc., 760 A.2d 1174 (Pa. Super. 2000), alloc. denied, 566 Pa. 647, 781 A.2d 147 (2001).

The proffered testimony of Dr. Walkow met the standard under Smith v. Grab. Accordingly, we denied that motion in limine. Because summary judgment may only be entered in a clear case where the moving party is entitled to relief as a matter of law, the related motion for summary judgment was denied too. Todd Heller Inc. v. United Parcel Service Inc., 754 A.2d 689 (Pa. Super. 2000).

While we do not permit further motions for summary judgment on this issue, this is not necessarily the last word on the admissibility of Dr. Walkow’s testimony. Pennsylvania Rule of Civil Procedure 207.1 creates a number of options for the trial judge to procedurally address expert testimony which is alleged to not be in accord with Frye. There is nothing in orders which we have entered to preclude the trial judge from revisiting issues of the competency of Dr. Walkow to express opinions on subjects as she, the trial judge, sees fit.

We next address the motion in limine whereby the defense requested that we sustain defense counsel’s objections during the trial deposition of Dr. Lippman. The defense objections were to attempts by plaintiff’s counsel to have Dr. Lippman identify medical records and repeat statements recorded therein made by the plaintiff to physicians who treated her in March of 1996 and thereafter. The statements made to these physicians by the plaintiff in and after March of 1996 were self-serving. In them, plaintiff reported that she told defendant, Dr. Scott, at the January 1996 appointment, that she found a mass in her right breast. Whether the plaintiff complained of irregularities in her right breast during the January 1996 appointment will be one of the crucial findings the jury will have to make.

We have read the trial deposition cross-examination of Dr. Lippman wherein plaintiff’s counsel attempted to introduce plaintiffs self-serving statements from her medical records. Plaintiff’s counsel impermissibly attempted to use Dr. Lippman as a vehicle to place those statements on the trial record in this case. There were no proper follow-up hypothetical or other questions after those statements were established. In our May 23 order, we sustained defense counsel’s objections to these questions. The statements were not independently admissible, arid we did not permit the plaintiff to use Dr. Lippman as the tool to get otherwise objectionable material before the jury.

Defense counsel has properly cited Williams v. McClain, 513 Pa. 300, 520 A.2d 1374 (1987) for admission of medical records. According to the Supreme Court,

“A medical record is admissible under the business records exception to the hearsay rule if the report: (1) was made contemporaneously with the events it purports to relate, (2) at the time the report was prepared, it was impossible to anticipate reasons which might arise in the future for making a false entry in the original, and (3) the person responsible for the statements contained in the report is known.” Id. at 305, 520 A.2d at 1376.

The first two requirements for admission of a medical record under the business exception to the hearsay rule were obviously not met. The statements to the subsequent treating physicians were not made contemporaneously with the event described. They were made months later. Also, when the reports of the subsequent treating physicians were prepared, reasons existed for plaintiff to provide false information for the physicians to record in the records as the case proceeded to litigation. (This is not a finding of falsehood by the plaintiff. Rather, it is nothing more than a consideration of the second element for admissibility under the medical business records exception to the hearsay rule.)

Also, the statements were not admissible under the medical treatment exception to the hearsay rule. This rule was set forth in Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 690 A.2d 719 (1997), alloc. denied, 549 Pa. 716, 701 A.2d 577 (1997). According to Swift, out of court statements which were made for purposes of receiving medical treatment can be admitted as substantive evidence under certain circumstances. See id. at 334, 690 A.2d at 721. There was no showing during the course of the questioning of Dr. Lippman by plaintiff’s counsel that the recorded statements of the plaintiff were for the purposes of medical treatment.

The existence of Pennsylvania Rule of Evidence 803(4) did not salvage these cross-examination questions from the plaintiff’s attorney because plaintiff’s statements reflected in the records were not, as we have pointed out, for medical treatment or diagnosis.

We did not, however, preclude the use of these entries for all purposes at trial. We did not know for what purpose counsel may seek to introduce the entries at trial. The full content of the records and all the reasons for the recording of these entries were not clear to us. Accordingly, the trial judge must necessarily make the rulings pertaining to these entries in the medical records if other attempts are made to introduce them at trial.

Finally, the defense motion contained a request that we deny and dismiss the objections by plaintiff’s counsel to questions posed to Dr. Lippman by defense counsel which asked for opinions beyond the scope of Dr. Lippman’s expert report of July 28, 1999. As we stated earlier, the objections by plaintiff’s counsel were well placed. We did not dismiss the objections. We sustained them.

An expert is permitted only to testify to subjects fairly covered within the expert report provided during the course of discovery. Pa.R.C.P. 4003.5. See Millard v. Nagle, 402 Pa. Super. 376, 403, 587 A.2d 10, 23 (1991), affirmed, 533 Pa. 410, 625 A.2d 641 (1993) and Trent v. Trotman, 352 Pa. Super. 490, 508 A.2d 580 (1986).

“The relevant inquiry in any case involving the interpretation of Rule 4003.5 ... is whether there has been surprise or prejudice to the party which is opposing the proffered testimony of the expert, based upon any alleged deviation between the matters disclosed during discovery, and the testimony of such expert at trial.” Trent, supra at 502, 508 A.2d at 587.

“[I]n deciding whether an expert’s trial testimony is within the fair scope of his report, the accent is on the word ‘fair.’ The question to be answered is 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. ” Chanthavong v. Tran, 452 Pa. Super. 378, 389, 682 A.2d 334, 339-40 (1996) (emphasis in original), quoting Walsh v. Kubiak, 443 Pa. Super. 284, 291-92, 661 A.2d 416,420 (1995), allocatur denied, 543 Pa. 716, 672 A.2d 309 (1996).

Dr. Lippman’s trial deposition was taken in Washington, D.C. The report of Dr. Lippman did not address, directly or by fair inference, subjects raised by defense counsel during his questioning. The subjects defense counsel tried to have Dr. Lippman discuss were the length of time the cancer was present in Ms. Callum’s body, the stage of Ms. Callum’s cancer in January of 1996, prognosis for women with breast cancer who survive more than five years after diagnosis, plaintiff’s probability for a cure in January and March of 1996, and other long-term survival opinion questions.

Plaintiff’s counsel claimed that he was unprepared for cross-examination on each of these subjects at the trial deposition. It was easy to see why because they were subjects as to which there was not even a hint, in the report of Dr. Lippman.

Fairness required that we sustain the objections of plaintiff’s counsel to each of these questions and that we strike those portions of the testimony of Dr. Lippman.

ORDER

Now June 5, 2002, after consideration of the briefs of the attorneys and argument on “second motion in limine and motion for summary judgment of defendants/motion to strike objections to deposition of Marc E. Lippman M.D.,” it is hereby ordered as follows:

(1) The motion in limine as to the testimony of Warren Walkow M.D, is denied and the motion for summary judgment is denied.

(2) The motion in limine “regarding certain portions of medical records” is granted in part and denied in part. The motion is granted to the extent that the defense counsel’s objections during the trial deposition of Dr. Lippman to questions posed by plaintiff’s counsel in attempting to identify and introduce into evidence contested portions of the medical records of the plaintiff are sustained. The motion is denied to the extent that all use at trial of these entries in the medical records is not precluded through this pretrial order. Rather, decision on the admissibility of these items is deferred for action by the trial judge if there are attempts to introduce these items at trial.

(3) The motion to dismiss objections made by plaintiff’s counsel during Dr. Lippman’s trial deposition pertaining to matters outside the scope of Dr. Lippman’s expert report is denied. Moreover, the objections by plaintiff’s counsel are sustained.