source: Caselaw Access Project

author: SPRECHER, J,

license: Public Domain

text:
    Laurel Homeowners Association v. Cellucci

      C.P. of Berks County,
    No. 14-5301

      Cheryl Jane Allerton, for plaintiff/appellee.

      Stephen Gary Welz, for defendants/appellants.
    Jan. 14, 2015
   SPRECHER, J,

FACTS

Defendants, John R. Cellucci and his wife, Edna H. Cellucci, are the owners of six residential dwelling units known as Building 26 in the Laurel Springs development. In previous litigation involving the same parties, property, and issues, plaintiff, Laurel Homeowners Association, commenced legal action in December 2003 to assess defendants’ property as condominiums for purposes of imposing plaintiff’s condominium fees. The parties executed a written settlement agreement and release (agreement) on March 16,2005 which resolved the matter. Paragraph 1 of the agreement reads as follows: “plaintiff agrees to withdraw with prejudice all claims of any right to collect condominium assessments from the defendants for real estate that they own in Building 26 of the Laurel Springs development unless and until such real estate is converted to condominium units in accordance with applicable Pennsylvania law.'’'’ (emphasis added).

On April 14,2014, plaintiff filed twelve separate notices of fee claims for monthly condominium assessments owed in two separate periods from September 1, 2007 through December 31,2014, plus filing fees and costs. Defendants filed petitions to strike the assessment fee claims, enforce the agreement, and impose counsel fees and costs in the twelve separate actions. On July 14, 2014, this court consolidated the cases into the above captioned action for filing purposes and determination.

When the agreement was executed, defendants owned the same three townhouse units in Building 26 of the Laurel Springs development, and each townhouse had two residential units with each townhouse unit on a single deed. Two years later, on July 17, 2007, defendants recorded six Declaration of Air Space Rights and Easements. Defendants’ stated purpose of the filing of these documents was that “The declarants (defendants) intend to sell the Stacked Townhouses and therefore desires (sic) to set forth herein the respective rights and duties of owners of Stacked Townhouses with respect to one another.” Plaintiff contends that these documents were prepared for the purpose of attempting to evade six condominium assessments. Plaintiff submits that by dividing the three townhouses and recording the six deeds, defendants are bound to pay condominium assessments for the six units. Laurel Springs defines townhouses as single-family dwelling houses and condominiums as a single structure that houses multiple residences.

DISCUSSION

68 Pa. C.S.A. § 3103 defines “condominium” as “real estate, portions of which are designated for separate ownership and the reminder of which is designated for common ownership solely by the owners of those premises. Real estate is not a condominium unless the undivided interests in the common elements are vested in the unit owners.” The comment in paragraph 2 to 68 Pa. C.S.A. § 3102 states that the creation of a condominium pursuant to the Act occurs upon the recordation of a declaration. Although, this real estate has never been included in any Declaration of Condominium and has never been offered for inclusion in a condominium, the definition of “condominium” contemplates that de facto condominiums may exist, if the nature of the ownership interest fits the definition.

In the case sub judice, the subject units are real estate in which portions are designated for separate ownership and the remainder is designated as common ownership. Thus, these units fit the definition for condominium. Furthermore, a Declaration of Air Space Rights is typically granted for a condominium. In the facts before us the Declarations conveyed to the occupants an immediate interest in the use of the common area.

This court finds that defendants have created de facto condominiums in preparation to selling the units. Even though the real estate was not in any Declaration of Condominium and has never been offered for inclusion in a condominium, in actuality, a condominium is what was created when defendants recorded six Declarations of Air Space Rights and Easements.

The owner of a townhouse usually owns the land beneath and the roof above, and a condominium owner does not. Each occupant in the instant case does not own the land beneath the unit. The tenants in the case sub judice own the air but not the land. Defendants’ labelling these units “stacked townhouses” is an attempt to circumvent the agreement and avoid the payment of six separate condominium fees.

In accordance with the foregoing opinion, this court enters the following order.

ORDER

And now, this 14th day of January, 2015, upon consideration of the pleadings and argument of counsel, it is hereby ordered that defendants’ petitions to strike assessment fee claim, enforce settlement agreement and impose counsel fees and costs are denied.


author: ANDERSON, J.,

text:
    ADB, Jr. v. AMK

      C.P. of Lycoming County,
    No. 14-21,700

      W Jeffrey Yates, for plaintiff.

      Bradley Hillman, for defendant.
    Jan. 21, 2015
   ANDERSON, J.,

— Before the court is plaintiff’s complaint to establish paternity and for genetic testing, filed December 23, 2014. A hearing was held January 13,2015.

The child at issue is ARK, bom July 15, 2014. At the time of ARK’s birth, plaintiff was residing with defendant, although they were not married. Plaintiff signed an acknowledgment of paternity on July 17,2014. The parties continued to reside together as a family until October 2014, when they separated. Because defendant received public assistance, she was required to file for support for ARK in October 2014. Plaintiff then filed the instant petition, seeking an order for genetic testing because he believes that he is not the father of the child.

According to 23 Pa.C.S. Section 5103(g)(2), “After the expiration of [the] 60 days, an acknowledgment of paternity may be challenged in court only on the basis of fraud, duress or material mistake of fact, which must be established by the challenger through clear and convincing evidence.” Indeed, plaintiff alleged in his petition that he was induced to sign the acknowledgment by fraud or mistake. Ordinarily, therefore, the court would focus on those issues. The matter has been expanded, however, by the courts’ decisions in KEM v. PCS, 38 A.3d 798 (Pa. 2012), and RKJ v. SPK, 77 A.3d 33 (Pa. Super. 2013), wherein the courts have applied the doctrine of paternity by estoppel “only where it can be shown, on a developed record, that it is in the best interests of the involved child.” The court will thus address the best interests of ARK in deciding whether genetic testing should be ordered in spite of the acknowledgment.

In the instant case, plaintiff testified that the parties had dated once for two months “years prior” and began dating again recently in late January, early February 2014. Plaintiff testified that when they began dating in 2014 he knew defendant was already pregnant to someone else. While defendant testified that the parties had sexual relations even when they weren’t dating, she did admit that she was not sure who was ARK’s father, rather than attempting to name plaintiff as the only possibility, and testified that one JM might be the father. According to plaintiff, he signed the acknowledgment of paternity at defendant’s request, so that she would not have “legal problems” with Mr. M. Plaintiff stated that he had been willing to raise both of defendant’s children as his own “as long as they were together”. It appears that Mr. M knows of ARK’s birth and that he is possibly her father, but he has not contacted plaintiff about the matter. It was not made clear whether he has contacted defendant. Since the separation in October, plaintiff has had one visit with ARK, in December 2014.

The doctrine of paternity by estoppel now focuses on the father-child relationship and whether that relationship has been reinforced through either the mother or the “father.” V.E. v. W.M., 54 A.3d 368 (Pa. Super. 2012). “The doctrine is a legal fiction and it exists for the benefit of the child; where there is no relationship, like here, application of the doctrine would serve no purpose.” Id. at 371. In the instant case, ARK is only six months old and the court may assume she has established no bond whatsoever with plaintiff. Therefore, as in V.E., “application of the doctrine is irrelevant to the child’s best interests. Absent a relationship, what becomes relevant is who will be financially responsible for the child.” Id. The court will therefore order genetic testing and if plaintiff is correct and he proves not to be ARK’s father, defendant will be free to pursue Mr. M for support.

ORDER

And now, this 21 st day of January 2015, for the foregoing reasons, plaintiff’s complaint to establish paternity and for genetic testing is hereby granted. The domestic relations office is requested to arrange for the testing and the parties are hereby ordered and directed to cooperate with those arrangements. Plaintiff shall pay the fee of $56.85 to the domestic relations office prior to testing.

      . In RJK, the court found that SPK had signed an acknowledgement of paternity knowing that he was not the biological father, but the application of Section 5103(g)(2) was not mentioned, and the court analyzed the evidence to determine the best interest of the child.

      . The court would not find fraud, duress or material mistake of fact from the record (except to the extent it appears that both parties were attempting to defraud the alleged biological father, as explained infra).

      . What was meant by “legal problems” was never explained.

      . Defendant testified to having given birth to an older daughter on August 22, 2013.

      . The court notes that in V.E., an acknowledgment of paternity had been signed by someone other than the putative father, but that factor was not considered in the court’s analysis.

      . The court found no relationship based on the simple facts that the child was nine days old when the petition was filed, and only four months old at the time of the hearing.

      . “[A]s a matter of law, it is impossible for a four month old child to suffer any damaging trauma from the performance of genetic testing .... as there has been an insufficient amount of time for any bonding to have occurred between any father and child.” V.E. v. W.M., 54 A.3d 368, 371 (Pa. Super. 2012).


author: TUNNELL, J.,

text:
    Lee v. Borough of Downingtown

      C.P. of Chester County,
    No. 2013-04494

      Samuel C. Stretton, for plaintiff

      Suzanne McDonough, for defendant Borough of Downingtown

      Joseph J. Santarone, for defendant Stephen Sullins

      Charles R. Starnes, for defendant Jack Law
    Jan. 21, 2015
   TUNNELL, J.,

ORDER

And now, this 21st day of January, 2015, the motions of defendant, Borough of Downingtown, defendant, Stephen Sullins, and defendant, Jack Law, for summary judgment against the plaintiff, Mark Lee, are granted and judgment is accordingly entered in their favor and against plaintiff, Mark Lee, in no amount:

      . On December 11, 2012, plaintiff, Mark Lee (“plaintiff”), instituted suit in the United States District Court in the Eastern District of Pennsylvania by filing a Complaint against Borough of Downingtown, Jack Law (“Law”) and Stephen Sullins (“Sullins”) (collectively “defendants”), asserting three (3) causes of action, namely Count I, Retaliation — First Amendment; Count II, Violation of the Pennsylvania Whistleblower Statute (43 P.S. §1421, et seq.); and Count III, wrongful termination. On January 7,2013, all defendants filed a motion to dismiss plaintiff’s complaint for failure to state a claim. On May 3, 2013, the honorable Jan DuBois entered an order dismissing Count I, retaliation — first amendment, but denied the motion to dismiss on the two remaining state claims. On May 9,2013, plaintiff filed a praecipe to transfer his case from federal court to the Chester County Court of Common Pleas. All defendants filed an answer to the complaint denying liability.
      Statement of Facts Alleged in the Complaint
      Plaintiff’s complaint asserts causes of action for violation of the Pennsylvania Whistleblower Law (“PWL”) and for wrongful termination. Plaintiff alleges that he was the Assistant Public Works Director for the Borough of Downingtown from 2007 until he was terminated on June 15, 2012. (Complaint, ¶1.) Plaintiff sued defendant Borough of Downingtown (“Borough”) in its capacity as plaintiff’s former employer. (Complaint, ¶2.) Plaintiff sued defendant Sullins in his capacity as the Borough Manager. (Complaint, ¶3.) Plaintiff sued defendant Law in his capacity as the Borough Director of Public Works. (Complaint, ¶4.) Plaintiff asserts that he reported directly to his supervisor, Jack Law, the Borough’s Public Works Director. (Complaint, ¶10.) Plaintiff alleges that Sullins as Manager of the Borough was charged with the responsibility of overseeing all Borough employees, governance in the Borough, and was the direct supervisor of defendant Law. (Complaint, ¶11.) In his capacity as Assistant Public Works Director, plaintiff supervised Borough employee Alexis Law, wife of defendant Law. At all relevant times, Alexis Law was employed as the Borough Supervisor of Parks. (Complaint, ¶14.)
      Plaintiff asserts that in his capacity as supervisor of Alexis Law, he noted that at certain times Ms. Law was not arriving to work on a timely basis, did not personally punch the time clock, did not timely travel to job assignments, remained in the Borough Public Works Building rather than work in the park, showered at work, ate her breakfast at work, used her Borough computer for personal matters and made personal telephone calls during work hours. (Complaint, ¶¶15-16.) Plaintiff avers that Alexis Law traveled to the park shack in Kerr Park where she had set up exercise equipment to exercise while being paid on Borough business. (Complaint, ¶16.) Plaintiff contends that he was told by Borough employees that Alexis Law used the Borough’s gas tank and placed gas cans in her vehicle. (Complaint, ¶21.) Plaintiff contends that he complained to his supervisor, Jack Law, concerning Alexis Law’s conduct, including exercising during work time, spending time in a park shack where exercise equipment was located, untimely arriving for work and reporting to work assignments, using her computer for personal matters, making personal phone calls, failing to perform her job duties in a diligent manner and what he perceived to be misuse of Borough gasoline. (Complaint, ¶¶18, 21.)
      Plaintiff also complained to Sullins concerning the same things about Alexis Law’s conduct. Additionally, plaintiff told Sullins that Alexis Law’s conduct affected the morale of co-workers. (Complaint, ¶¶18, 19 and 21.) Plaintiff asserts that in 2012, he refused “to continue to sign off on the time cards of Alexis Law” because they were “altered.” On April 19,2012, he found a discrepancy on Alexis Law’s time card. Plaintiff alleges that he refused to sign the time card and that Law signed his wife’s time card without authority. (Complaint, ¶23.) Despite his complaints regarding Alexis Law, defendants Law and Sullins took no action to discipline Alexis Law. (Complaint, ¶¶20,23.)
      Plaintiff avers that on June 14,2012, he told Sullins that he could not continue to work in an environment where Alexis Law did not comply with work rules, and no action was taken to correct or discipline Ms. Law. According to plaintiff, Sullins directed him to meet with defendant Law. (Complaint, ¶24.) Plaintiff asserts that on June 15, 2012, he met with Law and informed Law that his wife, Alexis Law, was not performing her work duties and that the situation had become “intolerable.” Plaintiff asserts that defendant Law used obscenities toward plaintiff and concluded the meeting. (Complaint, ¶26.) Plaintiff asserts that immediately following the June 15,2012 meeting with defendant Law, plaintiff met with defendant Sullins who terminated plaintiff. (Complaint, ¶27.)
      Plaintiff claims a violation of the PWL as he had made good faith reports concerning wrongdoing, waste, misuse of government funds, monies and property by employee, Alexis Law, to the defendants. He was then terminated by defendants. He seeks damages to include attorney’s fees, costs and punitive damages. (Complaint, ¶¶50-50, 54-55.)
      Plaintiff also asserts a cause of action for wrongful termination, contending that he was discharged by defendants in violation of public policy and of the Borough Employee Handbook Rules and Regulations. He seeks compensatory and punitive damages. (Complaint, ¶¶57, 64-65.)
      Standard of Review
      Summary judgment will be entered where there is no genuine issue as to any material fact and is proper in cases in which “an adverse party who bears the burden of proof at trial has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues be submitted to a jury.” Jones v. SEPTA, 565 Pa. 211, 216, 772 A.2d 435, 438 (2001); Pa.R.C.P. 1035.2. Although the evidence must be viewed in the light most favorable to the non-moving party, that party may not rely solely upon controverted allegations in the pleadings to overcome a motion for summary judgment. See Pa.R.C.P. 1035.3(a); Young v. Pennsylvania Dept. of Trans., 560 Pa. 373, 375, 744 A.2d 1276, 1277 (2000). Specifically, the non-moving party must identify one or more issues of fact arising from the evidence of record controverting evidence cited in support of the motion or evidence in the record establishing the facts necessary to set forth the cause of action alleged in the complaint. Id. Finally, the failure of the party with the burden of proof at trial to adduce sufficient admissible evidence on an essential issue conclusively establishes that there is no issue of material fact and that the non-moving party is entitled to judgment as a matter of law. Young, 560 Pa. at 375, 744 A.2d at 1277; see also Ertel v. Patriot-News Co., 544 Pa. 93, 100-101, 674 A.2d 1038, 1041-1042 (1996).
      Plaintiff’s evidence produced in support of his claims
      In his complaint, plaintiff set forth a litany of reports he made about Alexis Law. During his sworn deposition, however, plaintiff testified that there were only three (3) personnel issues involving Ms. Law that he reported to Mr. Law. Further, plaintiff conceded that when he did complain to Mr. Law, corrective action was taken. Specifically, plaintiff testified that he reported to Mr. Law that Ms. Law: (1) left the Borough during work hours, (2) used the Borough computer for personal matters and had covered the window to her office with a coat rack to hide her misuse, and (3) had allowed an unauthorized person to ride on a Borough vehicle.
        (See Lee Dep. at 22:15-23:17, 30:7-31:5, 34:6-18, 41:15-42:18, 47:11-48:9, 53:4-55:21,138:2-139:7.)
      Regarding Ms. Law leaving the Borough during work, plaintiff testified that he was told that Ms. Law had been seen by another Borough employee on Broad Run Road driving towards home. (See Lee Dep. at 30:7-31:5, 53:23-55:21.) Plaintiff conceded that Law informed him that he had sent Ms. Law to a mower shop on Broad Run Road. (See Lee Dep. at 53:23-55:21.) Plaintiff had no knowledge to the contrary and neither did his informants. (See Lee Dep. at 30:7-31:5, 53:23-55:21.) In addition, plaintiff testified that he informed Mr. Law that employees reported seeing Ms. Law at a church for an hour or more. (See Lee Dep. at 138:2-139:7.) However, there is no evidence that she was not there on Borough business or had not been otherwise excused.
      Regarding the use of the Borough computer for personal matters, plaintiff testified he spoke to Mr. Law about the computer use on three (3) occasions. He conceded that each time Mr. Law counseled Ms. Law. She ceased her use of the computer for personal matters. (See Lee Dep. at 41:15-42:18, 47:11-48:9, 138:10-13.) Plaintiff also complained that Alexis had placed a coat rack in front of her office window to prevent employees from witnessing her unauthorized computer use. Mr. Law immediately made her remove it. (See Lee Dep. at 41:15-42:18.)
      Finally, plaintiff complained to Mr. Law that Ms. Law had allowed an unauthorized person ride on a Borough vehicle, known as a “coachman” or “Gator.” (See Lee Dep. at 22:15-23:17,34:6-18.) After the complaint, he conceded that Ms. Law was disciplined with a verbal warning or “write up” by Mr. Law. (See Lee Dep. at 22:15-23:17, 34:6-18, 133:12-134:17.) This last charge was one of the false allegations made by Ms. Law’s co-worker, Vincent Panetti, for which Panetti later apologized. Plaintiff failed to bring any other alleged personnel issues to Mr. Law’s attention. He claims that this was due to his belief that nothing would be done regarding these other matters. (See Lee Dep. at 48:10-23.) However, plaintiff admitted that he had no reason to believe that corrective action would not be taken by Mr. Law and that Mr. Law had instructed plaintiff to discipline Alexis in the past. (See Lee Dep. at 22:15-23:17, 34:6-18,48:10-49:2.)
      Additionally, plaintiff has alleged that Ms. Law had exercise equipment in the Borough’s park facility, exercised on Borough time, and that this was reported to plaintiff Lee. (See Lee Dep. at 76:21-77:13.) Although Ms. Law did have a chin-up bar placed in the facility and a stair-climber was stored in the same area, no one ever saw the equipment used. (See Lee Dep. at 77:14-16; Keen Dep. at 8:1-9:22; Wingenfield Dep. at 40:14-18; Formica Dep. at 25:2-4; Davis Dep. at 8:20-11:4.) Further, this issue was not reported to Mr. Law, who only became aware of the allegations when informed by defendant Sullins. Once made aware of the issue, Mr. Law spoke to Ms. Law and the items were removed. (See Lee Dep. at 79:7-80:15.)
      In respect to use of Borough gasoline, the employees mentioned to plaintiff two (2) or three (3) times that Ms. Law had placed gas cans in the back of the Borough truck or the “Gator” vehicle. One employee, Jim Wingenfield, had no idea where it was used and simply assumed it was not for Borough business, but no one saw her use the gasoline for personal use. (See Wingenfield Dep. at 13-14, 36-37.)
      The court views the foregoing evidence in the light most favorable to the non-moving party as it analyzes plaintiff’s two claims.
      Wrongful Termination
      Plaintiff did not allege in the complaint any tenure rights or any other reasonable expectation of continued employment by virtue of a contractual or statutory guarantee. He is consequently regarded as an employee at-will. Paul v. Lankenau Hosp., 524 Pa. 90, 569 A.2d 346 (1990); Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917 (1989). During oral argument, plaintiff’s counsel agreed that Lee’s employment was at-will. It is well established in Pennsylvania that an employer may terminate an employee at-will for any reason, with or without cause. In fact, the presumption of at-will employment is an extremely strong one. See generally, McLaughlin v. Gastrointenstinal Specialists, Inc., 561 Pa. 307, 314, 750 A.2d 283, 287 (2000). It is true to say that Pennsylvania does not recognize a claim for wrongful termination in the case of at-will employment. Weaver v. Harpster, 601 Pa. 488, 975 A.2d 555 (2009). As an alternative theory, plaintiff argues that because the Borough’s handbook contains a section concerning progressive discipline, he is entitled — and the Borough is bound to abide by — the benefits conferred by these provisions. Consequently, plaintiff contends that his employment is not at-will. He cites no authority for this proposition. Plaintiff does concede that the handbook was not made part of an offer or inducement for him at the time of his hire. The Borough did not follow the progressive discipline set forth in the handbook and, instead, plaintiff says he was summarily fired.
      A terminated employee made a similar argument in the case of Ruzicki v. Catholic Cemeteries Ass’n. of Diocese of Pittsburgh, 416 Pa. Super. 37, 610 A.2d 495 (1992). After summary judgment was entered, he argued on appeal that the lower court erred because it was a question for the jury whether his status was terminable at-will or procedurally modified given the progressive discipline provisions in the employer’s handbook. The Superior Court noted that a handbook could be enforceable against the employer if a reasonable person in the employee’s position would interpret these provisions as evidencing the employer’s intent to supplant the at-will rule. The handbook must, however, contain a clear indication that the employer intended to overcome the at-will provision. It is the function of the court to interpret the handbook to discern whether it contains evidence of the employer’s intention to be legally bound. Id. at 42, 497. In that case, given the explicit disclaimer stating that the handbook did not affect an employee’s at-will status, Ruzicki faced an “insurmountable burden” in arguing that the handbook converts him from an at-will employee to one who can only be fired through the use of progressive discipline articulated in the handbook. Id.

      The Borough Employee Handbook is in the record and states that “[t]his handbook is not a contract and does not guarantee employment for any specific duration . . . either you or the Borough Council may terminate this relationship at any time .. (Pl.’s Answer to Def.’s Mot. Summ. Jud. at Ex. H.) This language leaves no room for doubt and is an unassailable indication that the handbook is aspirational in nature. Nor was it provided as an inducement at the time of hire, and so cannot be considered an offer. Our Supreme Court stated in Morosetti v. Louisiana Land & Exploration Co., 522 Pa. 492, 495, 564 A.2d 151, 152 (1989) that it is not sufficient to show the employer had a policy. A company may indeed have a policy on which they intend to act given certain circumstances or events “but unless they communicate that policy as part of a definite offer of employment, they are free to change as events may require.” Id. at 496, 153. In short, the employer here is not bound by its own policy.
      Plaintiff asserts that because he was terminated in retaliation for reporting wrongdoing and waste, bad management, and a loss of taxpayer dollars, his discharge is actionable because it violates public policy. A public policy exception to the at-will doctrine was recognized by the Pennsylvania Supreme Court in Shick v. Shirey, 552 Pa. 590, 716 A.2d 1231 (1998). In that case, an at-will employee alleged a claim of retaliatory discharge for filing a workers’ compensation claim. The court recognized the public policy exception and therefore a viable cause of action for wrongful discharge existed because the court viewed such termination as violating public policy. Pennsylvania courts have, however, only applied the public policy exception in cases of at-will employment where (1) an employer requires an employee to commit a crime, (2) an employer prevents an employee from performing a statutory duty, or (3) a statute prohibits discharge. Denton v. Silver Stream Nursing & Rehab. Ctr., 739 A.2d 571, 577 (Pa. Super. 1999).
      It is the judiciary’s role to identify where there are clear mandates of public policy in the absence of legislation. Where the legislature has spoken, however, and the employee is furnished with a statutory remedy, the courts will not recognize a public policy. Owens v. Lehigh Valley Hosp., 103 A.3d 859, 863 (Pa. Cmwlth. 2014).
      Obviously, the public policy reason tendered by the plaintiff to recognize an exception in this case is identical to the facts and theories for his statutory PWL claim. Consequently, since the legislature has fashioned a statutory remedy, indeed has rather carefully sculpted the whistleblower statute, that constitutes the public policy enunciated in Pennsylvania. Therefore, this court holds that plaintiff’s wrongful termination claim is not viable. Owens, supra.

      Also instructive is the decision in Rossi v. Pennsylvania State Univ., 340 Pa. Super. 39, 489 A.2d 828 (1985). Rossi was an instructor at the University who alleged that for years he complained about waste and mismanagement in his department causing a loss of taxpayers’ dollars. He attempted to influence his superiors to change the way things were being accomplished without success. He was fired. Rossi contended that this was in retaliation for his efforts, and thus was wrongful as a violation of public policy. Summary judgment was entered in favor of the defendants by the trial court and, on appeal, the Superior Court affirmed. It wrote:
      “The question before us is whether there is a public policy against firing an employee who continuously complains about what he considers to be poor management of the unit in which he is an employee. In every situation in the public sector, where there is poor management, a loss of tax payers’ dollars must necessarily follow.”

        Id. at 54, 836.
      The Superior Court agreed that there was no public policy in this situation and pointed out that were it otherwise it “would have the unwise effect of transferring to the judicial forum the duty of evaluating the propriety of management decisions.” Id. It further concluded that:
      “An employer may rid itself of a troublesome employee, without liability for wrongful discharge in the absence of violation of public policy.”

        Id. 54-55, 836-37.
      The court views the foregoing expressions as fully applicable to the present case.
      Pennsylvania Whistleblower Law (PWL)
      Plaintiff claims he was fired in violation of the PWL. It provides that:
      “No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste...”
      §43 P.S. § 1423(a). (emphasis added.)
      These last terms are defined as follows:
      “ Wrongdoing.” A violation which is not of a merely technical or minimal nature of a Federal or State statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest of the public or the employer.

        “Waste.” An employer’s conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources belonging to or derived from Commonwealth or political subdivision sources.
      §43 P.S. §1422. (emphasis added.)
      Plaintiff has the burden of proving that each report in issue is not merely of a technical or minimal violation of law in order to meet the definition of “wrongdoing.” Likewise, plaintiff must at this stage produce evidence that his report of “waste” has resulted in substantial abuse, misuse, destruction or loss of municipal funds. Plaintiff does not really differentiate which of his reports are of “waste” and which concern “wrongdoing.” His position seems to be that each complaint falls into both categories of reports.

        Defendants for their part argue that plaintiff was not fired, but quit, and did not have the requisite good faith in making his reports for a variety of reasons. They posit that his motivation was wrapped up in a desire to leave the Borough’s employ and move elsewhere. They contend plaintiff knew most of his complaints had actually been addressed and no disciplinary action had been visited on him. But the court considers none of this now, as it all constitutes disputed facts reserved for the fact finder.
      The court does conclude, however, that the evidence produced by the plaintiff does not allow him to proceed because his reports do not meet the definitional requirements of “waste” or “wrongdoing.”
      In what is perhaps a case of first impression, the court is called upon to quantify the legislative’s intent in its use of the adjectives “not minimal” and “substantial.” At first blush, they appear to be different ways of saying the same thing. Their insertion is a clear limitation on what would otherwise be all waste and all wrongdoing. Instead, nominal, trivial, or very small violations are beyond the intended protections of the statute.
      “Not minimal” and “substantial” are hardly words of art. They have their ordinary meanings. 1 Pa. C.S.A. §1903. One really need not consult a dictionary about them. “Minimal” means “very small or slight in amount.” “substantial” means “considerable in quantity, significantly large.” Black’s Law Dictionary 4th Ed. defines “substantial” as “of real worth and importance, of considerable value.”
      Unauthorized use of computers in the work place has been held not to rise to the level of “substantial abuse, misuse, destruction or loss” of municipal funds or resources contemplated in the PWL, in McClain v. Munn, 2008 WL 975059 (W.D. Pa. 2008).
      Such an analysis requires line-drawing by the court by virtue of the very presence of these adjectives in the statute. The court draws a line in this case. Plaintiff has not come close to it.
      By any measure, plaintiff’s alleged reports of “waste” and “wrongdoing” were thin even at the pleading stage. After producing evidence during discovery, many of the alleged reports of “waste” and “wrongdoing” evaporated because no violations of any law, regulation or code were founded in the first instance.
      Whispers down the lane are no substitute for reports of significantly large violations or substantial loss of funds. Whatever is left here, an unexplained time card, perhaps a couple of cans of gasoline and mysterious wanderings by co-workers, are trivial in the extreme. As succinctly put:
      “The Whistleblower Law is not designed to provide insurance against discharge or discipline for an employee who informs on every peccadillo of his fellow employees.”

        Evans v. Thomas Jefferson Univ., 81 A.3d 1062, 1070 (Pa. Cmwlth. 2013).
      Plaintiff’s counsel suggested during oral argument that the adjective “substantial” only modified the next word, “abuse,” and did not modify “misuse, destruction or loss of funds or resources.” Accordingly, any misuse or destruction or loss of funds or resources would satisfy the definition of “waste.” The court disagrees. Such an interpretation is an abrogation of ordinary grammatical rules. Under generally accepted rules of syntax, an initial modifier will tend to govern all elements in the series unless it is repeated for each element. Roberson v. Phillips Co. Election Commission, 214 Ark. 480 (2014), interpreting the phrase “a person shall not run for election for more than one (1) state, county, or municipal office” as meaning that “one (1)” modifies each element of the following series “state, county or municipal,” so that a person “could not run for election in more than one state office, more than one county office, or more than one municipal office.” In Lewis v. Jackson Energy Coop. Corp., 189 S.W. 3d. 87, 92 (Ky. 2005), the court said that it is widely accepted that an adjective at the beginning of a conjunctive phrase applies equally to each object within the phrase, i.e. modifies each noun or phrase in the series following, unless another adjective appears. See also Aetrex Worldwide, Inc, v. Sourcing for You, Ltd., 2013 W.L. 5407040 (D.N.J. Sept. 25, 2013). Applying the initial modifier rule here, it is clear that “substantial” modifies each of the following nouns in the series.
      Also suggested at oral argument was that the violation of the statute relied upon by the plaintiff in this case was the Pennsylvania Crimes Code, specifically the provisions concerning theft and theft of services, 18 Pa. C.S.A. §§3921, 3926. Plaintiff argued that the word “minimal” meant “de minimis” as found in that statute at 18 Pa. C.S.A. §312. The courts have refused to dismiss prosecutions under the de minimis provision notwithstanding that a robbery may have netted only, for example, 35 cents, Com. v. Moses, 350 Pa. Super. 231, 504 A.2d 330, (1986), or $1.59, Com. v. Campbell, 273 Pa. Super. 407, 417 A.2d 712, (1980). However, the legislature did not use “de minimis” but rather “not minimal,” in the PWL. The undoubted reason for this is that the PWL is designed to apply in a myriad of different situations involving Federal or state statutes or regulations, municipal ordinances or codes of conduct or ethics. Resort to the criminal “de minimis” provision is far too restrictive to meet the obvious purposes of the whistleblower statute.
      Defenses
      The Borough also moves for summary judgment on the ground that it is immune from state law tort claims under the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A. §8541-8564 (“PSTCA”). The court does not reach this or the other defenses of Law or Sullins, given that it has determined that plaintiff has no viable causes of action in the first instance.


author: SPRECHER, J.,

text:
    Wright v. Levan

      C.P. of Berks County,
    No. 13-18527
    Oct. 31, 2014-
   SPRECHER, J.,

Findings of Facts

I.Civil Action: Loreen M. Wright v. Nelson Allen Knotts et al, 09-17534

1. On December 27, 2007, the car in which plaintiff, Loreen M. Wright, was a passenger was operated on the Westshore Bypass, Reading, Pennsylvania. It was struck from behind by a large utility truck driven by Nelson Knotts of West Virginia.

2. The next month plaintiff hired John D. Levin, Esquire to represent her in the action.

3. Mr. Knotts was driving the utility truck on behalf of Shaft Drillers Inti, LLC and Coastal Drillers East, LLC. All were named as defendants in civil action 09-17534 filed in the court of common pleas of Berks County on December 24, 2009 by plaintiff’s attorney John D Levan Esquire.

4. Plaintiff was diagnosed at Reading Hospital with a sprained neck and later, from February 2008 through August 2008, she underwent several epidural and facet injections. She testified that she had relief from the initial treatment but subsequent treatments were unsuccessful. Surgery was considered but deemed too risky because of plaintiff’s diabetes. Plaintiff continued to treat her pain with medication.

5. Plaintiff treated with the Reading Neck and Spine Center, David J. Abraham, M.D. Dr. Abraham diagnosed a fracture of the neck as revealed by CAT scan/MRI. Plaintiff treated with pain and anti-inflammatory medications. She testified that she still treats with pain medicine and muscle relaxers today.

Background information: Delay in filing and service of plaintiff’s complaint

6. It took attorney Levan two years from the date of injury for plaintiff’s complaint to be filed. It took nearly a year thereafter for the complaint to be served on any defendant.

7. The complaint, as stated, was filed on December 24, 2009. An amended complaint was filed on December 28, 2009. No service of either the complaint or the amended complaint on defendants occurred; thus on July 12, 2010, attorney Levan praeciped to reinstate the amended complaint. Again, attorney Levan did not serve any of the defendants. On October 7, 2010, attorney Levan filed a second praecipe to reinstate the amended complaint; it was reinstated that day by the Prothonotary of Berks County. Service of the complaint on defendants was finally made thereafter.

First Fact Issue: Discovery Delay and Non-Compliance with Court Orders

8. On November 29,2010, Paul W. Grego, Esq. entered his appearance for defendants Shaft Drillers International, LLC and Coastal Drilling East, LLC and for driver.

9. On November 30, 2010, attorney Grego sent interrogatories and request for production of documents to attorney Levan.

10. Attorney Levan failed to respond.

11. On April 28,2011 attorney Grego filed a certificate of attempt to resolve discovery Issues complaining that no response was provided by attorney Levan. Attorney Grego had written to attorney Levan on January 6, 2011 and February 8, 2011 inquiring why answers to discovery were not provided. No response was filed by attorney Levan to the pleadings or the letters.

12. Defendant sent correspondence to attorney Levan at an alternate address and attempted by telephone calls to reach attorney Levan. Attorney Levan never responded.

13. On May 3, 2011, defendants, through attorney Grego, filed a motion for court order to compel plaintiff’s response to discovery.

14. The next day, senior judge Albert A. Stallone, ordered that plaintiff respond to said discovery within 30 days. Attorney Levan did not comply.

15. On June 10, 2011, defendants filed a motion for sanctions. A rule was issued upon plaintiff ordering attorney Levan to file an answer within 30 days.

16. Service could not be made on attorney Levan because his law office address was no longer receiving mail and no forwarding address was provided. The order was ultimately served on attorney Levan September 8, 2011 by the Sheriff of Berks County.

17. Finally, on September 28,2011, attorney Levan filed a response. He claimed he had not received defendants’ discovery request.

18. On October 18, 2011, attorney Grego praeciped defendant’s motion for argument on Monday, November 21,2011.

19. On said date, attorney Levan failed to attend argument court and judge Lash ordered that plaintiff comply with discovery within 30 days.

20. Attorney Levan again failed to comply. Defendant again filed a motion for sanctions on December 23, 2011 with accompanying brief. The case was reassigned to the undersigned and on January 19, 2012 a court order issued scheduling a hearing for March 2, 2012.

Second Fact Issue: Non Pros Entered; Sanctions Imposed

21. Attorney Levan again failed to appear for the hearing on March 2, 2012 and a judgment of non pros was entered against his client. Plaintiff was ordered to pay $2,500 in legal fees and costs.

22. On December 10, 2012, Attorney Eric Winter entered his appearance for Ms. Wright for these specific issues only — he filed a petition to open non pros and a petition to assign the $2,500 sanction from plaintiff to attorney Levan. This court scheduled a hearing for February 8, 2013.

23. On Februaiy 4, 2013, attorney Grego filed a reply to the motion, objecting to the motion to open judgment. This court scheduled a hearing/argument for March 8, 2013, at 10:00 a.m. notice was provided to attorneys Grego, Levan, and Winter. Attorney Levan failed to attend the hearing or to respond.

24. On March 8, 2013, this court issued a rule to show cause upon attorney Levan to show why he should not be assigned the said $2,500 sanction from his client and that his client be relieved of this responsibility. Rule returnable and hearing were scheduled for March 18, 2013.

25. Prior to March 18, 2013, attorney Levan notified this court that he would accept said assignment of debt.

26. On April 26,2013, this court issued an order denying the petition to open judgment but granted the assignment of the debt from plaintiff to attorney Levan.

II. Legal Malpractice Action: Loreen M. Wright v. John D. Levan, 13-18527

27.OnAugust 1,2013, LauraM. Siegle, Esquire entered her appearance and filed the underlying legal malpractice civil complaint on behalf of Loreen M. Wright, plaintiff against John D. Levan, Esquire.

28. Defendant Levan was served a copy of the complaint by the Sheriff of Berks County on August 14, 2013. He filed an answer thereto on September 27,2013.

29. Defendant Levan was deposed on December 3, 1013 at which time he stated under oath, inter alia, that he would provide to plaintiff a copy of her file.

30. Plaintiff’s attorney, Laura M. Siegle, Esquire, wrote to defendant Levan reminding him that his representation made under oath at his deposition included his promise “to forward a complete copy of the file in Ms. Wright’s case within 2 1/2 weeks” and that she “expected to receive these documents ... all papers, documents, notes, and records, and the complete contents of your Wright files no later than December 20,2013.”

31. On December 6, 2013, attorney Siegle served defendant Levan with a request for production of documents. Having received no response from defendant Levan, plaintiff again reminded him by letter of January 15, 2014 that discovery must be answered within seven day or sanctions will be moved against him. He failed to respond.

Third Fact Issue: Defendant Levan’s Continuing Refusal to Comply

32. As a result, this court, on January 29, 2014, issued a rale upon defendant Levan answerable within 30 days.

33. Defendant Levan did not respond. Thus, on April 7, 2014, plaintiff filed a supplemental memorandum of law in support of plaintiff’s motion to compel production of documents and for sanctions.

34. This court issued an order on May 2,2014 entering judgment in favor of plaintiff in the legal malpractice action in light of defendant Levan’s failure to respond in any way to the said motions, rales to show cause, Rules of Civil Procedure or to the court’s orders.

35. A hearing was set for May 20, 2014, at 1:30 p.m. The request for an amount of fees and costs from defendant Levan as further sanctions was set for the said time as was the hearing for the assessment of damages owed by defendant Levan to his client, Loreen M. Wright, in the underlying malpractice complaint.

36. On May 15, 2014, plaintiff filed a written request for a continuance of the May 20, 2014 hearing which this court granted and relisted the said hearing for July 3, 2014, at 10:30 a.m.

37. The said damages hearing was conducted on July 3,2014. After failing to attend all prior hearings that were each scheduled by court order, defendant Levan finally attended this one. All parties and counsel were present for the first time.

Discussion

Defendant Levan and Ms. Wright entered into a written contract in January 2008 that covered the full legal representation and the payment of legal fees and reimbursement of costs. Defendant Levan failed to move forward in the litigation and allowed the case to be dismissed for his failure to prosecute.

The only actions defendant Levan did take were consistently completed at the last minute. He filed the civil complaint 72 hours before the claim would be waived by non-compliance with the statute of limitation laws of Pennsylvania. For some reason he then filed an amended complaint four days later, but, for other reasons unknown, he failed to effectuate service on any defendants of either the original or amended complaint. The amended complaint was reinstated on praecipe, but not until July 21, 2010, exactly seven months after the complaint was first filed. Again, the service rules were not followed; thus, defendant Levan praeciped the prothonotary a second time on October 7, 2010 to reinstate the complaint. Service was finally made — a full eleven months after the civil complaint was originally filed.

No further action, whatsoever, was even attempted by him on behalf of his client. No further pleadings and no discovery of any type was pursued. There was also no record of any communications from him to his client providing an explanation for non-action. There is also no evidence of him communicating in anyway at any time to opposing attomey(s) even after phone calls and letters were received at his law office. Nor was any notice provided by him to anyone that he changed his address, closed his office, or discontinued phone service.

Summary of Omissions Leading Up to Non Pros Ruling

He failed to respond to at least ten court filings, several court-ordered hearings, and countless telephone and pretrial attempts at contact. The full record shows that defendant Levan caused a judgment of non pro to be entered against his client for his failure to prosecute the claim. He managed to totally violate court orders issued individually by three different judges of the Berks County Court of Common Pleas: Senior Judge Albert A. Stallone, judge Scott E. Lash, the undersigned.

The aforesaid merely sets the stage for the most damning actions of omissions yet to come.

Attorney Levan vs. His Former Client

After attorney Siegle was retained by plaintiff, he failed to comply with his statement given under oath at his disposition by refusing to deliver the complete file to his client and/or to her new attorney, attorney Siegle. In addition, he received two separate letters from attorney Siegle, one in December 2013 and the other in January 2014, following his deposition reminding him what he swore to do on a timely basis. Defendant Levan simply ignored these letters the same as he did court orders and the Rules of Civil Procedure and the many court documents filed and served on him. He also failed to comply with a request for production of documents issued by his former client in December 2013.

It is difficult to imagine the possibility of any more egregious contemptuous behavior by defendant Levan, but, shockingly, that’s exactly what happened. Although he refused to comply in anyway as aforesaid, including failing to even deliver his client’s file to new counsel as he promised under oath to do, he now prepared, he now took action, he now appeared in court, but not for the benefit of his client, Ms. Wright. On the contrary, he took action and prepared very well against his former client. He who took little ethical responsibility to help his client now was well-prepared to cut her up on cross-examination. He used the very contents of the file against his former client at the damages hearing that he refused to deliver to Ms. Wright or attorney Siegle. He prepared for cross-examination of his client in great detail on her preexisting medical treatments to show that the damages she is claiming, now against him in legal malpractice, on her underlying lost claim were not fully attributable to the accident. His goal, of course, was to minimize the amount of damages to be awarded against him by this court. To complicate matters, this cross-examination is proper except for one thing: he continued to hold the entire files of his client which he had refused to release to her or to attorney Siegle.

He did not even deliver a copy of the file to attorney Siegle the day of the hearing that he did choose to attend! Though he was ordered to do so, and promised under oath to do so, he had refused to forward the file. He then used the very file to cross-examine plaintiff, to attack her credibility — and opposing council could do nothing about it to protect her because she did not have the records to prepare herself or her client to anticipate and counter his attacks. A copy of a portion of pages 45 and 46 of the official notes of testimony for the July 3, 2014 hearing recites attorney Siegle’s objection.

24 you have struck testimony in somewhat similar situations, I

25 would ask the court now to strike the testimony since it

1 appears to be a proper remedy,

2 And it’s simply because the history here with

3 Mr. Levan. Her motor vehicle accident case was dismissed for

4 the very reason that he did not provide any discovery or

5 answer any interrogatories. The case was then dismissed or

6 non-prossed. He never tells my client that, she gets a bill

7 for $2500 which he agrees to be made payable by him. To date

8 he hasn’t paid it. It’s flagrant disregard for the court.

9 THE COURT; Do you have any other questions at this

10time, Mr. Levan?

11 MR. LEVAN; For Ms. Wright, yes, I do,

12 THE COURT: All right, well, then let’s hear those.

13 And your objection continues. It’s a standing objection.

14 And if you wish to make a further objection as a result of a

15 question that’s asked or you want to use it in your argument

16 at the end, you are certainly free to do so. so and how much

17 longer do you have?

Defendant Levan uses his legal skills and preparation. For the first time in five years, he works hard on the case by reviewing the client’s complete file to attack her testimony on damages. He uses her records as a shield to defend himself, to reduce her award of damages, the very damages that should have been pursued with professionalism and with gusto against the original defendants. Instead of ethically practicing law, and using all skills and documents and preparation to the full extent of his capacity as a sword to prosecute the claim and as a shield to protect his client against attacks in the underlying litigation, he forced the client to be fully exposed—without the protection of even advanced notice of what can and would be used against her had he delivered the file and answered the request for discovery. This is her original lawyer, the same person whose negligence caused her to endure seven years of aggravation, frustration, uncertainty, non-communication, and delayed and, perhaps, reduced compensation for her damages sustained. Shockingly, the very professional legal skills, hard work, and preparation, absent on his client’s behalf for seven years now come to light, not for her benefit but against her in a surprise attack as a sword to attack her credibility on cross-examination selfishly to reduce his own exposure to damages.

And, unlike Ms. Wright, he did not even have to hire an attorney to do the dirty work. He saved money by doing it himself.

Conclusion

The two separate case files opened since the accident of December 27, 2007, needless to say, accumulated voluminous filings. The entire matter has also generated countless hours of time and preparation by this court. And still, after almost seven years of activity with almost complete non-compliance by defendant Levan with the Rules of Civil Procedure, the orders of this court, and the attorney’s Code of Professional Responsibility, the entire matter is not yet complete. He acted with complete abandonment of his ethical and professional responsibility to Ms. Wright. Yet he chose not to accept his consequences and attempt to settle the case with his former client. No, instead he makes her continue to fight tooth and nail for fair compensation for her damages which were delayed for almost seven years due to his continuous failure to do anything for her. Now, for the first time, he wages a gallant fight but only to save his own hide at her expense.

For these reasons, this court finds that plaintiff must be awarded compensatory damages to reimburse her for her attorney fees, costs and loss of her claim. Plaintiff must also be awarded punitive damages because defendant’s conduct was outrageous; it was malicious, wanton, wilful, and showed a reckless indifference to the interests of plaintiff.

A punitive damages award considers the character of the defendant’s act, the nature and extent of the harm to plaintiff that the defendant caused, including plaintiff’s trouble and expense in seeking to protect her interests, and defendant’s wealth insofar as it is relevant in fixing an amount that will punish him and deter him and others from like conduct in the future.

In the case sub judice, defendant’s conduct evidenced deliberate indifference and blatant dishonesty. He also violated several Rules of Professional Conduct: Rule 1.1 Competence — A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation; Rulel.3 Diligence —A lawyer shall act with reasonable diligence and promptness in representing a client; and Rule 1.4 Communications — A lawyer shall keep the client reasonably informed about the status of the matter and promptly comply with reasonable requests for information.

Defendant undertook the representation of plaintiff’s case, but did little to nothing on it until threatened with sanctions or penalties. Defendant made a mockery out of his representation of plaintiff and disrespected this court and the legal system. When confronted with the consequences of his bad actions, he turned on his client and gave himself the zealous representation he denied his client.

In accordance with the foregoing opinion, this court enters the following verdict.


text:
    Garcia v. HCR ManorCare LLC

      C.P. of Berks County,
    No. 3-27281
    Nov. 10, 2014-
   SPRECHER, J.,

Defendants, HCR ManorCare, LLC, ManorCare of Sinking Spring PA, LLC d/b/a/ ManorCare Health Services — Sinking Spring, ManorCare Health Services, Inc. a/k/a ManorCare Health Services, LLC; Manor Care, Inc., HCR ManorCare, Inc., HCR IV Healthcare, LLC, HCR III Healthcare, LLC, HCR II Healthcare, LLC, HCR Healthcare, LLC, HCRMC Operations, LLC, HCR ManorCare Operations II, LLC, and Heartland Employment Services, LLC, appeal the order dated September 2, 2014, which overruled in part and sustained in part, their preliminary objections to plaintiff’s complaint. This opinion is filed pursuant to Pa. R.A.P. 1925.

FACTS

The facts gleaned from the record are as follows.

Gloria Marie Eckert (hereinafter, Patient) was a resident of defendant ManorCare of Sinking Spring, Pa, LLC d/b/a ManorCare Health Services — Sinking Spring (ManorCare) from September 19,2012 to October 2,2012. The remaining ManorCare defendants own, operate, and/ or manage nursing homes, including ManorCare. Patient then became a patient at Kindred Transitional Care & Rehabilitation—Wyomissing (Kindred) from October 11, 2012 through November 7, 2012. The remaining Kindred defendants own, operate, and/or manage nursing homes, including Kindred. Plaintiff filed a medical professional liability action against all the defendants.

At the time of her residence at ManorCare, patient was incapable of independently providing for all of her daily care and personal needs without assistance. She had an 18 cm. surgical incision to her left hip with bruising s/p left femur fracture with ORIF on September 19, 2012. Plaintiff, Gloria J. Garcia, is patient’s daughter and attorney-in-fact. Plaintiff alleges that the ManorCare defendants deprived patient of adequate care, treatment, food, water, and medication, and caused her to suffer numerous illnesses and injuries, including pneumonia, hypoxic hypercapnic respiratory failure, MRSA of the naves, VRE, poor hygiene, and severe pain.

Plaintiff’s complaint contains six counts: Count One — negligence against ManorCare defendants; Count Two — negligence per se for violations of neglect of a care-dependent Person, 18 Pa. C.S.A. § 2713 against ManorCare; Count Three — negligence per se for violations of the Pennsylvania Older Adults Protective Services Act, 35 P.S. § 10225.101 et seq. against ManorCare. Count Four is a negligence claim against the Kindred defendants. Count Five is negligence per se for violations of neglect of a Care-Dependent Person, 18 Pa. C.S.A. § 2713 against the Kindred defendants, and Count Six is a claim of negligence per se for violations of the Pennsylvania Older Adults Protective Services Act, 35 P.S. § 10225.101 et seq. against the Kindred defendants.

All defendants filed preliminary objections. This court shall address only ManorCare’s preliminary objections in this opinion. First preliminary objection was a motion to enforce the arbitration agreement (agreement) executed by patient’s husband, Robert Eckert (hereinafter, Husband), who had a power of attorney for patient on the date of her admission to ManorCare. Second preliminary objection was a motion to strike claims of ordinary negligence. Third preliminary objection was a motion to strike claims of negligence per se pursuant to the neglect of a Care-Dependent Person statute. Fourth preliminary objection was a motion to strike claim for negligence per se pursuant to the Older Adults Protective Services Act. Fifth preliminary objection was an objection to scandalous and impertinent matter. Sixth preliminary objection was a motion to strike allegations of unnamed agents and theories of liability based on allegedly tortious conduct of her physicians, acting as agents. Seventh preliminary objection was a motion to strike plaintiff’s complaint for her failure to delineate the allegations that are being brought against each defendant. Eighth preliminary objection was a motion to strike allegations of outrageous conduct to justify punitive damages.

In rendering a decision on the enforceability of the agreement, this court reviewed the pleadings, briefs, argument of counsel, the transcript of patient’s deposition, the transcript of husband’s deposition, and the transcript of defendant’s nursing home administrator.

Patient had given husband a durable power of attorney on September 5, 2006. On November 12, 2012, patient rescinded husband’s power of attorney and appointed her daughter and plaintiff, Gloria J. Garcia, as her power of attorney because patient believed that plaintiff was more stable and knowledgeable than husband who was getting older and forgetful (patient, 34). Patient was in pain on the day of her admission to ManorCare, so husband signed the admission paperwork. Husband never showed her a copy of the documents which he had signed. Although husband had a power of attorney for patient, patient signed papers whenever she had been able to do so.

Husband testified that he was bom on December 10, 1927. He thought that his street address was 1488 Gregory Avenue, but it is actually 1440 Gregory Avenue (husband, 9). On the date of the deposition, patient and husband had lived at this address for approximately three years. Husband did not graduate from high school and does not have a GED (husband, 14). He testified that he had never been appointed as patient’s power of attorney (husband, 17). He did not remember seeing any of the admission documents, including agreement, before his deposition on May 21, 2014 (husband, 18). He also did not recall anything the administrator, Lynette Seiler Wirth, had told him during the admission process. He simply “took her word” about what he was supposed to sign (husband, 48).

Lynette Seiler Wirth is ManorCare’s nursing home administrator. She fills in for the admissions coordinator when she is absent. She did the paperwork on patient’s admission to ManorCare. Patient declined to sign the paperwork for her admission because she was too tired. Husband was able to execute the paperwork two days after patient’s admission (Wirth, 20). Ms. Wirth testified that husband had been very alert and had asked several questions while signing patient’s admission documents. She had not known at the time that husband had a power of attorney for patient (Wirth, 23). Husband had told her that he did not have a power of attorney for his wife (Wirth, 24).

Ms. Wirth believed that husband had the right to sign the paperwork because he was patient’s spouse (Wirth, 25). She does not review the agreement with the patients or their representatives. She puts the agreement in front of the people, excuses herself, and makes copies of the patients’ insurance cards; during her absence the people can read the agreement (Wirth, 27). Patients are not allowed to negotiate the terms of the agreement (Wirth, 35).

Based on this evidence, this court overruled the preliminary objection to enforce the agreement and sustained the remaining preliminary objections without prejudice. Defendants filed a timely appeal.

ISSUES

Defendants raise the following issues in their concise statement of errors complained of on appeal.

1. This court erred in overruling defendants’ preliminary objection seeking to enforce the agreement signed by husband on patient’s behalf.

2. By overruling the preliminary objection seeking to enforce the agreement, this court erred by failing to apply the liberal policies favoring arbitration and the presumption that nursing home disputes can be arbitrated.

3. This court erred by not finding that husband had actual authority to bind patient to the agreement that he signed on patient’s behalf.

4. This court erred by not finding that husband was competent to sign the agreement on patient’s behalf.

5. This court erred in not finding that the parties entered into a binding arbitration agreement under state and federal law.

6. This court erred in not finding that the agreement was not unconscionable.

7. This court erred in failing to find that there was a knowing and voluntary waiver of the right to a trial by jury and in failing to find that the terms of the agreement were direct and understandable.

8. This court erred in not severing the claims of the ManorCare defendants from the other defendants in this lawsuit and failing to order that any claims against these defendants must be adjudicated in arbitration as set forth in the agreement.

9. In overruling the preliminary objection seeking to enforce the agreement, this court erred in failing to recognize the joint state and federal policy in favor of arbitration, as well as the doctrine of Federal Preemption.

10. This court erred in not following the Pennsylvania Superior Court decision in MacPherson v. Magee Hospital for Convalescence d/b/a Magee Rehabilitation, et al., 80 EDA 2013, —A.3d — 2014, vacated, rehearing granted, September 2, 2014, which was binding precedent when this court issued its September 2,2014 order overruling the preliminary objection seeking to enforce the agreement.

DISCUSSION

All of defendants’ issues concern this court’s refusal to enforce the agreement. These issues are without merit. This court shall first address the issues concerning husband’s authority and competence to sign the agreement.

Patient removed husband as her power of attorney because he was forgetful and unstable and appointed plaintiff as her power of attorney less than three months after husband had signed the agreement. Husband signed the agreement as a spouse because he did not even realize that he was patient’s power of attorney. One cannot act as the power of attorney for someone else if he or she does not know about the power of attorney. Husband is confused and does not even know his own address; he is probably incompetent to handle his own affairs, certainly someone else’s business. Clearly he had no understanding about what he had signed and had just agreed to sign whatever document had been placed before him. He did not make a knowing waiver of the right to a jury trial and was unable to understand the consequences of the arbitration process and the rights which he gave up.

Furthermore, there is a difference between being alert and being competent. Husband was alert when he gave his deposition, but he was confused. There is no evidence about the type of questions which he allegedly asked Ms. Wirth. They could have been generic questions, such as “Where do I sign?” or “What is the date?” These types of questions are not evidence that husband was competent enough to understand the agreement.

Defendants maintain that the agreement is not unconscionable. This contention is meritless. This court found that it was unconscionable for the following reasons.

An “adhesion contract” is a standard form contract prepared by one party, to be signed by the party in a weaker position, usually a consumer, who has little choice about the terms. In the case sub judice, Ms. Wirth testified that patients are not permitted to make changes to the agreement. A contract or term is unconscionable and therefore avoidable, where there is a lack of meaningful choice in the acceptance of the challenged provision and the provision unreasonably favors the party asserting it. Bayne v. Smith, 965 A.2d 265 (Pa. Super. 2009). Therefore, agreement in the case sub judice is an adhesion contract, a take-it-or leave-it contract that defendants require every resident to sign upon the resident’s admission.

The agreement consists of fourteen sections. No section explains to the patient or the representative what arbitration is; thus, the resident cannot have a succinct understanding of what he or she is agreeing to and what is being given up in exchange for selecting arbitration.

1. Agreement to Arbitrate “Disputes”: All claims arising out of or relating to this agreement or any and all past or future admissions of the patient at this center, or any sister center operated by any subsidiary of HCR ManorCare, Inc. (“sister center”), including claims for malpractice, shall be submitted to arbitration. Nothing in this agreement prevents the Patient from filing a complaint with the center or appropriate governmental agency or from seeking review under any applicable law of any decision to involuntarily discharge or transfer the patient.

This paragraph compels the parties in all claims, including those for malpractice, to enter into arbitration. Moreover, it binds the parties to arbitration even if they become patients at any time, regardless of the circumstances, at other centers that are operated by any subsidiary of HCR ManorCare, Inc.

It is one thing for realistically anticipated legal issues to arise between parties in a business transaction that both sides equally want to be mediated or arbitrated. This is a cost effective resolution of expected litigation; but it is entirely different to have an uneducated consumer enter into a contract for nursing services and find, when it is too late, that there can arise totally unanticipated issues, such as medical malpractice, as in the instant matter.

8. Right to Change Your Mind: This agreement may be cancelled by written notice sent by certified mail to the center’s administrator within 30 calendar days of the patient’s date of admission. If alleged acts underlying the dispute occur before the cancellation date, this agreement shall be binding with respect to those alleged acts. If not cancelled, this agreement shall be binding on the patient for this and all of the patient’s subsequent admissions to the Center or any Sister Center without any need for further renewal.

This wording is not always true despite the fact that it misleads the consumer to believe he can change his mind anytime within the first 30 days. For instance, even when a patient’s claim arises on the first day at the home, regardless of having the agreement cancelled on the second day, which is well within the 30 days, the patient is still forced to arbitrate the claim and is barred from going to court. That is because the second sentence allows the cancellation for only those claims that arise after the cancellation date. In essence, the wording right to change your mind in this instance is not true even if the agreement is cancelled within thirty days of signing. Thus, whenever the agreement is cancelled by sending notice on the 30th day, any claims that arose in the first twenty-nine days still must be arbitrated even though the paragraph misinforms the patient otherwise.

On the other hand, if the agreement is not cancelled, this paragraph again confirms the binding of the patient not only to his or her current admission to this nursing home, but also to any future admissions to any facility owned by defendants, even without the execution of a new agreement.

11. Confidentiality: The arbitration proceedings shall remain confidential in all respects, including all filings, deposition transcripts, discovery documents, or other materials exchanged between the parties and the panels’ award. In addition, following receipt of the panels’ award, each party agrees to return to the producing party within 30 days the original and all copies of documents exchanged in discovery and at the arbitration Hearing.

This paragraph further protects defendants from having the public learn the truth as to what happened. Patients may suffer grievous injuries and/or death, but the defendants remain unscathed with the use of arbitration except for paying a portion of the damages. Arbitrations are private between the parties, unlike lawsuits which are open to the public; therefore, arbitrations will not generate bad publicity for defendants. Some injuries alleged are so egregious that if they are proven, they should be made known publicly; a lack of transparency in critical issues may be against public policy because the consumer has the right to be informed.

This provision further requires that all evidence, including all copies that could be used to plead or argue the truth of the actual liability/damages shall be returned to defendant. This continuing secrecy guarantee is very disturbing in any legal proceeding, especially when it is designed to bury all proof of bad things that may be alleged to occur in a nursing home that solicits and contracts with patients from the general public.

14. Health Care Decision: The parties hereby stipulate that the decision to have the patient move into this Center and the decision to agree to this agreement are each a health care decision. The parties stipulate that there are other health care facilities in this community currently available to meet the patient’s needs.

In this paragraph, defendants try to claim that a decision to sign the agreement is a health care decision. This is a ridiculous attempt to try to avoid having the agreement scrutinize by the courts by claiming that it is a health care decision. A decision to arbitrate is not a treatment decision and does not impact in any way on one’s health, unless defendants inform the patient that he or she will treated better if the agreement is signed. Moreover, how does the consumer know if there are other facilities in the community that could meet the patient’s needs and have an opening? Patients are not able to gain admission to a facility if there are no available beds. This paragraph, in effect, punishes the patient for selecting defendants for his or her healthcare needs.

Conclusion

Husband is not a sophisticated businessman or a health services worker. He is eighty-seven years old and has memory problems. Husband did not even read the agreement. No evidence was produced that showed husband had the acumen to negotiate with defendants on an equal footing even if he had read and understood the agreement.

Additionally, there is no evidence that either patient or husband remotely expected that defendants’ employees would harm patient. It is logical to conclude that patient and her relatives involved in the signing process were thinking of only contractual issues concerning her stay at the home when arbitration issues were visualized — not nursing home and/or medical malpractice issues. A negligence action was not foreseeable by patient or her family; if it had been, patient might not have chosen to reside there.

Arbitration may be fine for monetary issues in business transactions, but injuries caused negligently in tort should not be the subject of routine arbitration unless both parties fully and completely negotiated and agreed to the final terms. Unlike contracts where the breaches are anticipated because they are negotiated, and, therefore, the issues are relatively clear, and a breach can be easily identified, negligence issues are not at all obvious, and unless the defendants warn the patients of possible malpractice, not at all anticipated.

For all of the above reasons, this court found that the agreement in the instant case is unconscionable and voidable. Neither patient nor husband was competent on the day of her admission. Patient was in so much pain that defendants agreed with her that she was unable to sign admission documents. Defendants rushed to conclude the paperwork by having her husband sign even though he was not competent to even realize he was patient’s power of attorney.

The agreement is procedurally unconscionable because it was presented to husband who basically signed the paperwork, including the agreement, without full knowledge of its binding terms and conditions. It was not patient who executed the agreement; husband simply signed as a formality because he was told that he could do so as a spouse.

There was also a great disparity in the bargaining positions between the parties. Even if husband could understand what he was doing — that he was doing it because he had a power of attorney, and what the entire agreement said and meant, he still could not negotiate this agreement in any way. He had to take the agreement as is.

The agreement is substantively unconscionable because it violates public policy. In the case sub judice, patient’s voluntary waiver of a right to a jury trial is not a knowing waiver. Neither she nor husband understood what they might be waiving — she, because of the pain and he because of his incompetency. There is no evidence that this patient even knew that husband waived a jury trial or even a court proceeding. Neither patient nor husband is an attorney or a businessperson experienced in the law. This court cannot conclude that either patient or husband understood their rights. Therefore, this court concluded that husband lacked informed consent when he agreed to waive the resolution of all future disputes in a court of law in favor of private arbitration, even if he had legal authority to bind his wife.

Defendants further maintain that this court erred in not severing these defendants’ claims against the other defendants’ claims in the case sub judice and failing to order that the claims against these defendants must be adjudicated in arbitration. This claim is without merit. No defendant requested severability. Moreover, this court found the agreement invalid for the many aforesaid reasons. Severing defendants’ claims would not have affected this court’s decision.

Defendants’ last assertion is that this court erred in not following the Superior Court’s decision in MacPherson which was binding precedent when this court issued its decision in this case. The facts in the case sub judice were inapposite to those in MacPherson. This court found that husband, unlike the plaintiff in MacPherson, was not competent to enter into a binding arbitration agreement even if he had known he was patient’s power of attorney. Neither he nor his patient/wife made a knowing waiver of the constitutional rights that are guaranteed to every citizen.

In accordance with the foregoing opinion, this court submits that its order should be affirmed and defendants’ appeal denied.


text:
    Snyder v. Brecknock Township

      C.P. of Berks County,
    No. 09-8807

      Richard Shenkan, for plaintiff.

      Thomas X McAndrew, Jr,, for defendant Brecknock Township.

      James E. Crossen, III, defendants Fiorenzo Ferretti and Christine Ferretti.
    Dec. 1, 2014
   SPRECHER, J.,

Plaintiff appeals the order dated September 16, 2014, which granted summary judgment in favor of defendants and against plaintiff. This opinion is filed pursuant to Pa. R.A.P. 1925.

FACTS

On July 25, 2008, Robert F. Snyder (hereinafter, decedent) was operating his 1990 Ford Escort on Gouglersville Road which was owned by defendant, Brecknock Township (Township). He travelled off the road and struck an I-beam located on property owned by defendants, Fiorenzo Ferretti and his wife, Christine Ferretti (hereinafter, owners). A Township speed limit sign was attached to the I-beam at the time of the accident. Decedent’s son and executor, Matthew J. Snyder (hereinafter, plaintiff), filed a wrongful death and negligence survival action against defendants. Plaintiff contends that the dual purposes of the erection and/or maintenance of the I-beam were to protect the personal and real property of the owners and to serve as the post for a traffic control device for Township.

The parties engaged in exhaustive discovery. No evidence has been produced as to why decedent drove off the road and struck the I-beam.

James Franey was the only witness to the accident. He testified that the weather was sunny on the day of the accident. He did not observe any substances or slippery conditions on the road. Decedent passed in front of Mr. Franey who was at a stop sign on Blimline Road which intersects the Gouglersville Road. While decedent was passing him, decedent looked at Mr. Franey. Mr. Franey saw decedent impact the I-beam. Mr. Franey does not know why decedent’s vehicle left the roadway and crashed into the I-beam. He did not see anything that would have caused the accident. There was no other traffic on the road. Plaintiff and other family members did not know what caused the accident.

Decedent had minimal posthumous bleeding. The coroner opines that seconds before the accident decedent had a heart attack which caused him to travel off the road.

Charles S. Kiefer serves as Township’s road master. He has worked on the road crew or as master since 2005. He was not aware of any accidents involving the I-beam prior to 2008. He also did not know about any complaints to Township regarding the subject I-beam. He confirmed by taking a measurement that the I-beam was located in Township’s right-of-way.

Harry T. Martin, Jr., a former employee of Township, testified that he had been employed full-time on the Township’s road crew from 2005 through 2010. He also was not aware of any accidents involving the I-beam prior to the Snyder accident. He did not know of any complaints to the road crew about the I-beam prior to the instant accident. He knew that the I-beam was positioned in owners’ front yard prior to decedent’s accident, but he had not viewed the I-beam as a problem.

Decedent resided in his Mohnton, Pennsylvania residence, which was approximately one mile from the accident site, for about fourteen years before his death. He was sixty years old when he died. He was disabled with multiple sclerosis, but he was able to drive a car.

Township contends that it did not cause the accident, and plaintiff has failed to produce any evidence that it did. Township denies that it committed any acts or omissions that caused decedent’s death. Owners also deny causation. Causation is a necessary element in both wrongful death and negligence survival actions.

Owners also submit that they did not breach any duty owed to decedent and that they are not liable for the happening of the accident. They maintain that they could not have taken any action with respect to the I-beam which posted the lawfully erected Township speed limit signs since the destruction, removal or injury of the sign would have constituted a summary offense under the Second Class Township Code, 53 P.S. § 67323.

Plaintiff’s accident reconstruction expert, Kevin E. O’Connor, P.E., submitted a report. He wrote that sight distances for drivers stopped on Blimline Road looking to the left are limited by trees and brush growing on the southwest comer of the intersection and by the profile of Gouglersville Road west of Blimline Road. The roadway on Gouglersville Road consisted of worn asphalt. There was loose gravel on portions of the pavement surface, particularly along the south edge of Gouglersville Road at the intersection of Blimline Road. Mr. O’Connor opined that an application of the vehicle’s brakes could have resulted in a skid due to friction differences between the tires on the clean surface and tires on the graveled covered surface. There were no signs warning eastbound drivers of the existence of the curve or the intersection with Blimline Road at the accident site.

The I-beam had been in the same location since the owners had moved into their residence. Mrs. Ferretti’s uncle had installed it, presumably to deter vehicles from entering his lawn and destroying it and his shrubs. Owners have maintained the I-beam. After the accident, Township removed the speed limit sign from the I-beam. Mr. O’Connor believed that action should have been taken to eliminate or to make the I-beam safer to hit because it was in the clear zone.

Two police reports noted that owners’ property was the site of two prior vehicular accidents in 2003 and 2004. Both drivers in those accidents lost control of their vehicles. In the 2004 accident, a woman lost control of her vehicle because she had continued to drive after the tire had come off and the rim had been exposed. There were possibly three other accidents involving the I-beam.

Based on this record, this court granted summary judgment for all defendants. Plaintiff filed a timely appeal.

ISSUES

Plaintiff raises the following issues in his concise statement of errors complained of on appeal.

1. Whether this court’s decision to grant summary judgment to defendants was in error, when there was sufficient evidence to create a genuine issue of material fact regarding defendants’ negligence, the determination of which should have been submitted to the trier of fact.

2. Whether this court’s decision to strike plaintiff’s punitive damages was erroneous.

3. Whether this court erred by denying plaintiff’s request to conduct a subterranean inspection to determine whether the subject cement I-beam was attached to the owners’ cement wall.

DISCUSSION

Plaintiff’s first issue is that summary judgment was in error because there was sufficient evidence to create a genuine issue of material fact regarding defendants’ negligence. This issue is without merit.

A defendant may establish a right to summary judgment by demonstrating the plaintiff’s inability to show an element essential to his claim. If the plaintiff fails to contravene the defendant’s claim with evidence raising a factual dispute as to the element, the defendant is entitled to entry of judgment as a matter of law. Pappas v. UNUM Life Insurance Company of America, 856 A.2d 183 (Pa. Super. 2004). In the case sub judice, this court determined that plaintiff’s inability to show the reason for decedent’s leaving the roadway was an essential element missing from his claims.

The elements necessary to state a cause of action in negligence are as follows: (1) a duty on the part of the defendant to conform to a certain standard of conduct relative to the plaintiff; (2) defendant’s failure to so conform; and (3) a reasonably close causal connection between the defendant’s conduct and some resulting injury to the plaintiff. Where insufficient evidence exists to justify an inference of negligence and causation, the trial court may properly grant summary judgment in favor of the party against whom liability is sought. Caldwell v. Department of Transportation, 120 Pa. Cmwlth. 358, 524 A.2d 1284 (1988).

In similar cases where the drivers have left the roadway for no apparent reasons and have struck objects, such as fence posts and logs, the appellate courts have affirmed summary judgments against the plaintiffs because they reasoned that the accidents were caused by the vehicles leaving the roadway and not by the objects which they hit after leaving the roadway. The Superior Court in Saylor v. Green, 165 Pa. Cmwlth. 318 (1994) held that the trial court could have properly concluded that the property owners could not have foreseen that the driver would inexplicably lose control of his vehicle and strike a pole.

Furthermore, the Saylor court held that information regarding prior accidents which occurred at the site where the motorcycle left the road and struck a pole would not have been admissible in the motorcyclist’s negligence suit, given the motorcyclist’s admission that he did not know the circumstances regarding his accident; the motorcyclist could not identify the reason his vehicle left the roadway and struck a pole. Likewise, in the case sub judice, this court would not have admitted evidence of prior motor vehicle accidents involving the I-beam. It is reversible error to introduce evidence of motor vehicle accidents where the conditions and circumstances are different from the accident in question, and plaintiff does not know the circumstances regarding decedent’s accident.

Plaintiff’s accident reconstruction expert gave his opinion as to why decedent drove off the roadway. There is another expert opinion which suggests that decedent had a heart attack immediately prior to his accident. For approximately fourteen years, decedent lived approximately one mile from the accident site. Presumably, he was familiar with the road. Decedent’s reason for leaving the roadway is unknown, and a jury would not have been allowed to speculate about the cause.

Plaintiff next submits that it was error for this court to strike plaintiff’s punitive damages claim. This issue is without merit.

Punitive damages may be rewarded for conduct that is outrageous, because of defendant’s evil motive or his reckless indifference to the rights of others. Punitive damages are penal in nature and are proper only in cases where defendant’s actions are willful, wanton, or reckless conduct. The purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from similar conduct. Apunitive damages claim must be supported by evidence sufficient to establish that (1) defendant had a subjective appreciation of the risk of harm to which plaintiff was exposed, and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk. Hutchinson v. Luddy, 582 Pa. 114, 870 A.2d 766 (2004).

In the case sub judice, this court believed that at the preliminary objection stage, there was not sufficient evidence to support punitive damages claims, so it sustained the preliminary objections to the punitive damages. It did not sustain the preliminary objections with prejudice. If during a trial, the evidence would have met the heavy burden that is necessary to prove punitive damages, this court would have permitted the issue of punitive damages to be considered by the jury.

Plaintiff’s third issue is that this court erred by denying plaintiff’s request to conduct a subterranean inspection to determine if the subject I-beam was attached to owners’ cement wall. This issue is without merit. This court granted summary judgment in favor of defendants and against plaintiff; thus, this issue was moot. Assuming arguendo that it had not been moot, it still should have been denied. Plaintiff hit the I-beam. It is immaterial if the I-beam was attached to a wall or was free-standing. The issue has always been the placement of the I-beam, not its construction.

In accordance with the foregoing opinion, this court submits that plaintiff’s appeal should be denied and the summary judgment affirmed.