author: SAYLOR, J.,

text:
    Mancini v. Yavorek

      C.P. of Northumberland County,
    no. CV-02-1414.

      Pamela L. Shipman, for plaintiff.

      Darryl S. Wishard, for defendant Yavorek.

      Stephanie L. Hersperger, for defendants Lin and SUN Orthopaedic Group.

      Marc T. Levin, for defendant Bubb.

      Robert A. Seiferth, for defendants Kerstetter, Plaster, Figlo and Sunbury Community Hospital.
    February 18, 2003
   SAYLOR, J.,

This case presents two rather interesting issues. The first is whether a physician’s dictated operative note as to the counting of surgical sponges and instruments can form the basis of a claim of intentional or negligent misrepresentation where it is not alleged to have been read and relied upon by anyone. The second is whether plaintiff, in this case, has sufficiently alleged conduct supporting a claim for punitive damages as part of this medical malpractice action.

This case began on July 18,2001 when plaintiff, Mary Mancini, was admitted to defendant Sunbury Commu: nity Hospital (SCH) for a spinal diskectomy using a trans-peritoneal approach. Defendant Henry Yavorek M.D., performed the initial midline abdominal incision, while defendant Paul Lin M.D., performed the diskectomy with spinal fusion. Yavorek used surgical staples to perform the tissue closure. At the time, Yavorek allegedly dictated a note indicating that all sponge and instrument counts were correct.

Shortly after surgery, plaintiff began showing symptoms of an infection. On July 22,2001, plaintiff was sent home on an antibiotic regimen. Five days later, Lin reviewed an x-ray and indicated the surgery appeared to be successful. It is alleged the x-ray showed the presence of a foreign object in plaintiff’s pelvis, but she was never informed of it by Lin nor was she treated for it. On August 14, 2001, plaintiff saw her primary care physician with complaints of continuing fevers. Three days later, plaintiff again visited Lin, at which time it is believed another x-ray was taken. On August 19, 2001, plaintiff went to the emergency room at Geisinger Medical Center, due to her fever, where x-rays were taken and a dictated report of the lumbar x-ray stated there appeared to be two retained surgical sponges or pads in the pelvic region. The next day, plaintiff underwent an exploratory laparotomy with the removal of a laparoscopy sponge and drainage of an intra-abdominal abscess.

Plaintiff was discharged from Geisinger on August 23, 2001, and continued receiving care from a visiting nurse for wound care. She was seen by her Geisinger surgeon as well as Lin on August 31, 2001, for follow-up, and her open wound was granulating well. On September 6, 2001, plaintiff was given permission by Lin to return to work. At some point, Lin allegedly told plaintiff that he thought what he viewed on the x-ray was part of her clothing.

On October 31, 2002, plaintiff filed a first amended complaint alleging a surgical sponge had been negligently left within her pelvic region during her spinal surgery July 18, 2001. Plaintiff is seeking damages against defendants Yavorek, Lin, Kerstetter, Plaster, Bubb, Figlo and SCH based upon negligence. Plaintiff further seeks damages based upon vicarious liability against defendants SCH and SUN Orthopaedic Group. Plaintiff is seeking punitive damages against Lin. Finally, plaintiff alleges negligent or intentional misrepresentation against all defendants.

On November 7, 2002, Yavorek filed preliminary objections to plaintiff’s amended complaint. On November 18,2002, Lin and SUN filed joint preliminary objections to the same amended complaint. That same day, defendant Bubb filed preliminary objections as well. All these preliminary objections were consolidated for argument on January 10,2003. The court will address each set of preliminary objections in turn.

Yavorek asserts two preliminary objections to plaintiff’s amended complaint. The first preliminary objection is in the nature of a demurrer or, in the alternative, a motion to strike Count XI of plaintiff’s amended complaint as factually and legally insufficient. In Count XI, plaintiff alleges all, or any number of, defendants knew a surgical sponge had been left inside plaintiff’s body. It is further alleged the defendants failed to make an accurate count of surgical sponges used in plaintiff’s procedure and thus they negligently misrepresented the count. Plaintiff finally alleges she relied to her detriment on these negligent or intentional misrepresentations, resulting in personal injuries.

A claim of intentional misrepresentation requires plaintiff to allege facts which show a material misrepresentation is made with, at least, recklessness as to its truth with the intent to mislead another who justifiably relies upon the misrepresentation to her detriment. Bortz v. Noon, 556 Pa. 489, 729 A.2d 555, 560 (1999) (citing Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.2d 882, 889 (1994)). Negligent misrepresentation requires the same showing except the one representing the material fact need not have knowledge of its falsity or act with recklessness with respect to its falsity, but only make the misrepresentation under circumstances in which one ought to have known its falsity. Id. at 561 (citing Gibbs, 538 Pa. at 210, 647 A.2d at 890).

Plaintiff’s amended complaint is deficient in a number of respects concerning this claim. Although this complaint alleges Yavorek made a representation, it does not allege it was received by anyone. This complaint alleges Yavorek dictated a note stating “sponge and instrument counts were correct times two.” Pl.’s first am. compl. ¶¶12, 41.3. However, there are no allegations that anyone ever read this note. Plaintiff also failed to allege this representation was made with any intent to cause action thereby, that anyone acted thereon, or that any reliance thereon was reasonable.

Plaintiff argues there is no requirement under the Restatement that the representation be made to plaintiff herself. The Restatement provides as follows: “One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results ... to such third persons as the actor should expect to be put in peril by the action taken.” Restatement (Second) of Torts §311 (1965). (emphasis added) Although it is true that the Restatement view eliminates the need for plaintiff to allege the representation was made to her, she must nonetheless allege that the representation was made to someone. As noted previously, plaintiff has failed to so allege. Plaintiff’s amended complaint also fails to remedy the other deficiencies noted above respecting the conditions that there also be action taken and reasonable reliance on any representation.

Accordingly, Yavorek’s preliminary objection with respect to Count XI must be sustained. Plaintiff shall be granted leave, however, to amend the complaint, if she possibly can, if these conditions exist but the pleading simply omitted them. It must also be noted, in the event there is further amendment of the complaint, upon reading Count XI of plaintiff’s first amended complaint, it is unclear whether plaintiff is alleging intentional or negligent misrepresentation. It appears plaintiff may be pleading in the alternative. Although pleading in the alternative is permissible under the Pennsylvania Rules of Civil Procedure, the alternatives must be pled in separate counts. Pa.R.C.P. 1020(d)(1).

Yavorek’s second preliminary objection is in the nature of a motion to strike paragraph 41.4 of plaintiff’s first amended complaint as unsupported by facts. Plaintiff alleges in paragraph 41.4 that Yavorek “[f] ailed to provide postoperative care, including but not limited to care which would have diagnosed the retained surgical sponge, when Mary Mancini developed a fever while still hospitalized.” Pl.’s first am. compl. ¶41.4. Yavorek argues this paragraph is unsupported by any material facts. Factually, this paragraph is sufficient. This paragraph specifically says Yavorek failed to provide postoperative care. By stating Yavorek failed to do anything, plaintiff has been as factually specific as is possible. See Packrall v. Park, 47 Fayette L.J. 68, 69 (C.P. 1984) (“When the plaintiffs plead that the defendant did nothing, this is as specific as it is possible to be.”).

Yavorek further claims this paragraph is overly broad and, if not stricken, will allow plaintiff to state new claims after the statute of limitations has expired without notice of the nature of such new claims. A defendant who fails to preliminarily object to a broad, non-specific pleading runs the risk that such objection will be deemed waived if the plaintiff later amends the complaint stating new claims that merely amplify such non-specific pleading. See e.g., Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983) (defendant waived specificity objection by answering complaint). Here, however, the claim against Yavorek is a failure to provide care. Any amendments to the complaint after the expiration of the statute of limitations will be limited to this failure to provide care. This preliminary objection is therefore denied.

Lin and SUN assert three joint preliminary objections to plaintiff’s amended complaint. The first preliminary objection is in the nature of a demurrer or, in the alternative, a motion to strike Count X. Plaintiff claims, in Count X, Lin acted in a willful or wanton manner, or with reckless indifference toward the risk of harm to plaintiff. Plaintiff is therefore seeking punitive damages against Lin. Specifically, this count alleges Lin had an x-ray showing an abnormality and he consciously refused to inform plaintiff of this fact or to treat her for the same despite at least constructive knowledge of the presence of something. Lin argues plaintiff’s complaint is insufficient to support a claim for punitive damages.

Pennsylvania has adopted section 908 of the Restatement (Second) of Torts as the rule of punitive damages. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984) (citing Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963)). Under this rale, “punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Restatement (Second) of Torts §908(2) (1979). At the time of the injuries in this case, punitive damages in a medical malpractice case could be awarded for “conduct that is the result of the health care provider’s willful or wanton conduct or reckless indifference to the rights of others.” 40 P.S. §1301.812-A(a) (repealed 2002). Conduct is recklessly indifferent when it involves “an easily perceptible danger of death or substantial physical harm, and the probability that it will so result must be substantially greater than is required for ordinary negligence.” Hall v. Jackson, 788 A.2d 390, 403 (Pa. Super. 2001) (quoting comments to Restatement (Second) of Torts §500). “Punitive damages may not be awarded for misconduct which constitutes ordinary negligence such as inadvertence, mistake and errors of judgment.” Id. (quoting McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 623, 533 A.2d 436, 447 (1987)). Even allegations of gross negligence are “insufficient to support an award of punitive damages.” 40 P.S. §1301.812-A(b) (repealed 2002).

Within this context, it is clear plaintiff has failed to sufficiently allege facts to support a claim for punitive damages. Although plaintiff alleges that Lin was aware of abnormal indications on the x-ray images, there are no allegations that Lin knew or should have known that by ignoring the abnormality at that time he increased substantially the risk of harm to plaintiff. The amended complaint fails to allege the situation at that time provided to the doctor an “easily perceptible danger of death or substantial physical harm” or that the probability that such harm would result was “substantially greater” by his conduct than that which is necessary to be negligent. Hall, 788 A.2d at 403. While the complaint alleges facts sufficient to support a claim of ordinary negligence against Lin, it fails to allege those elements necessary to support a claim for punitive damages.

Furthermore, a claim for punitive damages does not, by itself, constitute a cause of action. Nix v. Temple University, 408 Pa. Super. 369, 380, 596 A.2d 1132, 1138 (1991). Such a claim is “merely incidental to a cause of action.” Id. (citing Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986)). As a result, Count X must be stricken; however, plaintiff will be given one more opportunity to state a punitive damages claim, if supportable, as part of another appropriate count.

Lin and SUN’s second preliminary objection is in the nature of a demurrer or, in the alternative, a motion to strike Count XI of plaintiff’s first amended complaint, a misrepresentation claim. They argue the amended complaint fails to allege sufficient facts to support such a claim. Plaintiff bases this claim against Lin, in part, upon Lin’s failure to tell her a sponge had been left in her body. “The deliberate nondisclosure of a material fact is the same as culpable misrepresentation.” McClellan v. Health Maintenance Organization, 413 Pa. Super. 128, 142, 604 A.2d 1053, 1060 (1992). Plaintiff makes a conclusory statement that “certainly defendant Lin knew that a surgical sponge” was left in plaintiff’s wound, pl.’s first am. compl. ¶82, and failed to so inform plaintiff to her detriment. It is difficult to comprehend that plaintiff did not set forth such an allegation under her statement of facts recited in paragraphs 8 through 39 of the amended complaint, yet in Count XI, paragraph 82, she makes this bold assertion for the first time. Since the allegations of a complaint must be accepted as true for the purpose of consideration of a demurrer, the same will be overruled in view of such averment.

Lin and SUN’s third preliminary objection is in the nature of a motion to strike paragraphs 39,45,77 and 85 of the amended complaint. In these paragraphs, plaintiff alleges she suffered unspecified damages and injuries that are recoverable under Pennsylvania law. Rule 1019(f) requires that “items of special damage shall be specifically stated.” Pa.R.C.P. 1019(f). General damages, or those that are the natural and ordinary consequence of the tort committed, need not be specifically averred. Parsons Trading Co. v. Dohan, 312 Pa. 464, 167 A. 310 (1933). A complaint must contain facts sufficiently specific to allow the defendant to respond. General Acceptance Corp. v. Wilson, 40 Northumberland L.J. 54, 57 (C.P. 1967). “It need not, however, develop matters which are essentially evidentiary.” Id. These unspecified injuries and damages are largely matters of evidence and are better discerned through discovery than through amended pleadings. Plaintiff will be barred from attempting to prove any special damages that have not been specifically averred. Lin and SUN’s third preliminary objection is therefore denied.

Defendant Bubb’s preliminary objection is in the nature of a demurrer or, in the alternative, a motion to strike Count XI of plaintiff’s first amended complaint. As with the other defendants, plaintiff alleges defendant Bubb’s conduct constituted intentional or negligent misrepresentation. This claim is insufficient. Plaintiff at no time alleges Bubb made a representation to anyone. As with Yavorek, plaintiff also fails to allege any representation was made with the intent that anyone act upon it, that anyone in fact acted upon it, or that any reliance upon it was reasonable. For these reasons defendant Bubb’s demurrer to Count XI must be sustained as to her and plaintiff will be granted leave to amend the complaint to sufficiently state a claim of misrepresentation if she can.

Accordingly, this court enters the following:

ORDER

And now, February 18, 2003, after consideration of defendants Yavorek, Lin, SUN and Bubb’s preliminary objections to plaintiff’s first amended complaint and argument on the same, it is hereby ordered that the preliminary objections be disposed of as follows:

(1) Defendant Yavorek’s preliminary objections

(a) The demurrer to Count XI is sustained with respect to defendant Yavorek.

(b) The motion to strike paragraph 41.4 is denied.

(2) Defendants Lin and SUN’s preliminary objections

(a) The motion to strike Count X is granted.

(b) The demurrer to Count XI is overruled as to defendants Lin and SUN.

(c) The motion to strike paragraphs 39, 45,77 and 85 is denied.

(3) Defendant Bubb’s demurrer to Count XI is sustained as to her.

(4) Plaintiff is granted leave to amend the complaint, if she can, in accordance with the attached opinion.

      . Curiously, although Pa.R.C.P. 1019(f) requires the attachment of a copy of a writing upon which a claim is based, plaintiff has attached no such copy of this alleged operative note. Plaintiff has attached what purports to be “Sunbury Community Hospital and Outpatient Center Perioperative Record” to her brief in opposition to defendant Bubb’s preliminary objections. It is not at all clear, however, whether this is the note defendant Yavorek dictated.

      . This subsection has been re-enacted verbatim in 40 P.S. §1303.505(a).

      . This subsection has been re-enacted verbatim in 40 P.S. § 1303.505(b).

      . We need not address in the present context the issue as to the application of a “reasonable man” standard, as referred to in Restatement (Second) of Torts §500, the propriety of which is not yet settled by our appellate courts as to this type of action.

      . While new Rules of Civil Procedure 1042.1 through 1042.8, effective January 27, 2003, regarding a certificate of merit in professional liability actions, are not applicable to this action as it was commenced prior to their adoption, plaintiff should have some basis to support each and every allegation of a pleading to which her verification has been made under Pa.R.C.P. 1024. It would appear that a special verification under Rule 1024(b) would have been appropriate here, since the pleading contains averments that are inconsistent in fact, i.e., that Lin failed to detect the sponge on the x-rays, and that the other defendants failed to notify Lin and Yavorek of the incorrect sponge counts; yet in paragraph 82, plaintiff alleges that Lin knew a sponge was left in the wound.


source: Caselaw Access Project

author: NEALON, J.,

license: Public Domain

text:
    Clifford v. Leonardi

      C.P. of Lackawanna County,
    no. 99 CV 4236.

      Amil Minora, for plaintiff.

      Ben A. Nicolosi, for defendant.

      Jeffrey B. Albert, for putative intervenor.
    April 15, 2003
   NEALON, J.,

Plaintiff has filed a motion for sanctions seeking a default judgment or, in the alternative, an order precluding the defendant from introducing expert medical testimony at trial on the grounds that the defense medical expert, Peter A. Feinstein M.D., has refused to comply with a discovery order issued by Judge Michael J. Barrasse on June 26, 2002. By way of brief background, plaintiff served expert witness interrogatories upon the defendant which requested, inter alia, the following information regarding any defense expert witnesses:

“(4) For all expert witnesses defendants have identified please state the following:
“(a) How many medical examinations were performed at the request of an insurance company, insurance adjuster or attorney representing a defendant in a personal injury action of any kind within the last four years.
“(b) Whether the expert has testified in court or by way of oral deposition, within the past four years, list the court involved, the date of the testimony and the identity of the attorney calling the expert as a witness.
“(c) Please state whether the expert has hospital privileges, name the hospital and extent of the experts hospital privileges.
“(d) List the number of surgical procedures the expert has performed in the last four years and in which hospitals those procedures were performed.
“(e) List the number of patients the expert has treated in his office or in the hospital in the last four years excluding the medical examination listed in paragraph (a) above.
“(5) For all expert witnesses defendants have identified please state the following:
“(a) The amount of money expert has been paid for the examination of plaintiff.
“(b) The amount of money expert will be paid for his time in testifying for defendant.
“(c) The total amount of money expert will be paid by defendant for his services in connection with plaintiff’s case.
“(6) For all expert witnesses defendants have identified please state the following:
“(a) Of the 100 percent of time expert practices medicine what percentage is devoted to performing medical examination of the type listed in paragraph 4(a) above.
“(b) Of the 100 percent of time expert practices medicine what percentage is devoted to treating all other patients.
“(7) For all expert witnesses defendants have identified please state the following:
“(a) Of the 100 percent of income derived directly from the practice of medicine what percentage is derived from performing medical examinations of the type listed in paragraph 4(a) above.
“(b) Of the 100 percent of income derived directly from the practice of medicine what percentage is derived from treating all other patients.” (See docket entry no. 21, exhibit “A”.)

Defendant provided the information requested in plaintiff’s interrogatories 1, 2, 3 and 4(c), but objected to the information sought in interrogatories 4(a), (b), (d) and (e), 5, 6 and 7. (Id. exhibit “B”.)

Consequently, plaintiff filed a motion to compel answers to his discovery, and on June 26, 2002, Judge Barrasse filed an order which stated that “the defendant has 60 days from the date of this order to comply with the discovery request of the plaintiff, James Clifford, which time period may be expanded upon good cause shown by the defendant.” (Id., no. 24.) Defendant subsequently presented a motion in motion court seeking to file its expert witness interrogatory answers under seal and to bar dissemination of the trial deposition of Dr. Feinstein, but by order dated October 3, 2002, we denied the defendant’s motion for a protective order. (Id. no. 25.) Defendant thereafter served the following supplemental answers to the plaintiff’s expert witness interrogatories as per Judge Barrasse’s discovery:

“(1) See previously provided answer.
“(2) See previously provided answer.
“(3) See previously provided answer.
“(4)(a) 2,449 from June 30, 1998 to June 30, 2002.
“(b) See document attached hereto as exhibit A.
“(c) See curriculum vitae which has already been provided.
“(d) 1,088 in Wilkes-Barre General Hospital, 49 in Mercy Hospital, Wilkes-Barre, and 12 in Nesbitt.
“(e) 3,022.
“(5)(a) $2,150.
“(b) $2,100 for the first hour of a deposition and $300 for each quarter hour over that period of time.
“(c) Unknown at this point since deposition has not yet been taken.
“(6)(a) 20.5 percent.
“(b) 79.5 percent.
“(7)(a) & (b). Dr. Peter A. Feinstein will not provide this information since it is irrelevant to the case and personal information to him. Neither this court, plaintiff or juries should be entitled to know the personal wealth of an expert witness who testifies at the time of deposition. Because these answers provide the number of independent medical examinations and depositions performed, a plaintiff can calculate Dr. Feinstein’s total income, even that income which is unrelated to his work as an expert witness on behalf of both plaintiffs and defendants. No expert should be required to reveal personal wealth information just because they are being utilized in a case.” {Id., no. 27, exhibit “E”.)

According to the supplemental discovery responses provided by the defendant, Dr. Feinstein performed 2,449 examinations and provided 856 trial depositions for the defense side of litigation during the four-year period from June 30,1998 to June 30, 2002. At $1,000 per examination and $2,100 per trial deposition, Dr. Feinstein earned $2,449,000 performing defense medical examinations and $1,797,600 providing defense trial depositions for total defense forensic income of $4,246,600 during that four-year period, i.e., an annual average of $1,061,650 per year. However, since Dr. Feinstein refused to answer interrogatory no. 7 by identifying what percentage of his total professional income was derived from such defense forensic services, plaintiff filed the instant motion for sanctions and on November 20, 2002, the motions court judge issued a rule to show cause why the request for sanctions should not be granted. (Id., no. 29.) A rule returnable hearing was conducted on April 10,2003, at the conclusion of which this matter became ripe for disposition.

Plaintiff contends in his sanctions motion that a default judgment should be entered against the defendant pursuant to Pa.R.C.P. 4019(c)(3) or that the defendant should be barred from introducing expert medical testimony under Rule 4019(c)(2). In essence, the plaintiff argues that the defendant should be vicariously liable for sanctions based upon Dr. Feinstein’s alleged defiance of Judge Barrasse’s discovery order. Defendant and the putative intervenor maintain that the information sought in interrogatory no. 7 is highly confidential and not subject to discovery since it will enable litigants, lawyers and the public to ascertain Dr. Feinstein’s personal income. By way of hypothetical illustration, if Dr. Feinstein’s defense forensic income identified in response to plaintiff’s expert interrogatory nos. 4 and 5 comprises 75 percent of Dr. Feinstein’s professional income, then any juror or other person will be able to calculate that Dr. Feinstein earned $1,415,533.33 in annual professional income.

Defendant and the putative intervenor rely heavily upon Mohn v. Hahnemann Medical College and Hospital of Philadelphia, 357 Pa. Super. 173, 515 A.2d 920 (1986) where the court distinctly held that evidence regarding a defense medical expert’s receipt of fees for medical-legal cases other than the one being tried was inadmissible. The Mohn court concluded that although an expert’s bias is always subject to scrutiny, “we do not think this encompasses the emptying of one’s pockets and turning them inside out so that one’s financial worth can be open to scrutiny.” Id. at 181, 515 A.2d at 924. In granting a new trial based upon the erroneous cross-examination of a defense expert, the Superior Court remarked that “[credibility was the question, and the permissible bounds of assailing it were exceeded when the expert’s total income, unrelated... to the ‘results of the trial’ was exposed to the jury” since “the nexus between [the expert’s] compensation for all services rendered (which included work for private and governmental agencies, patients and other law firms)... and his credibility on the witness stand is tenuous at best.” Id. at 181, 515 A.2d at 924-25. (emphasis in original)

By challenging the propriety of interrogatory no. 7 under Mohn, the defendant and putative intervenor question the soundness of Judge Barrasse’s discovery ruling and effectively seek reconsideration of his order dated June 26, 2002. Under the coordinate jurisdiction doctrine, judges of coordinate jurisdiction sitting in the same case should not overrule each other’s decisions. Van Zandt v. Holy Redeemer Hospital, 806 A.2d 879, 888 n.7 (Pa. Super. 2002); Yamulla Trucking & Excavating Co. Inc. v. Justofin, 771 A.2d 782, 784 (Pa. Super. 2001). The coordinate jurisdiction rule falls within the “law of the case” doctrine, Buck Hill Falls Co. v. Press, 791 A.2d 392, 396 (Pa. Super. 2002), “which instructs that a court involved in the later phases of a litigated matter should not reopen questions decided by another judge of the same court.” Kroptavich v. Pennsylvania Power & Light Co., 795 A.2d 1048, 1054 (Pa. Super. 2002). Ergo, we would contravene the coordinate jurisdiction rule if we revisited or reconsidered Judge Barrasse’s discovery ruling as advocated by the defendant and putative intervenor. See Zane v. Friends Hospital, 770 A.2d 339, 340-41 (Pa. Super. 2001).

The narrow issue before us is whether sanctions should be imposed upon the defendant, Linda Leonardi, pursuant to Pa. R.C.P. 4019 (c)(2) and (3) based upon Dr. Feinstein’s failure to produce financial worth information in compliance with Judge Barrasse’s order of June 26,2002. The Rules of Civil Procedure do not authorize vicarious liability for discovery misconduct by exposing a party to sanctions due to the unsolicited actions of that party’s expert or witness. Cf. Pavelik & LeFlore v. Marvel Entertainment Group, 493 U.S. 120 (1989) (law firm was not vicariously liable for sanctions based upon bad faith conduct of an individual member of the firm). See also, Weston, Court-Ordered Sanctions of Attorneys: A Concept That Duplicates the Role of Attorney Disciplinary Procedures, 94 Dick.L.Rev. 897, 928 n.98 (Summer 1990); Joseph, Current Issues In Discovery, 430 Practicing Law Institute/Lit. 263, 319 (1992). Pa.R.C.P. 4019(c)(3) provides for the entry of a default judgment solely “against the disobedient party or party advising the disobedience.” Preclusion of testimony may also be warranted under Rule 4019(c)(2) if a party or its agent engages in an egregious discovery violation. See e.g., Pioneer Commercial Funding Corp. v. American Financial Mortgage Corp., 797 A.2d 269 (Pa. Super. 2002) (bank’s former counsel was precluded from testifying as a discovery sanction since the attorney, as an agent for the bank, was part and parcel of numerous discovery violations). Instantly, there is no indication that Dr. Feinstein is an officer, employee or managing agent under the control of the defendant. As evidence of that fact, we note that Dr. Feinstein has retained separate counsel and is seeking to intervene as a party so that he can pursue this discovery issue even if the defendant declines to do so.

Accordingly, there is no evidentiary support in the record for making the defendant, Linda Leonardi, vicariously liable for sanctions under Rule 4019(c) based upon Dr. Feinstein’s refusal to furnish information he deems privileged and non-discoverable'. Thus, plaintiff’s motion for sanctions against the defendant will be denied. We express no opinion as to whether the plaintiff may seek recourse against Dr. Feinstein individually via a motion for civil contempt or other sanctions. In that event, however, we would note that it is well settled that “each court is the exclusive judge of contempts committed against its process.” Commonwealth ex rel. v. Shecter, 250 Pa. 282, 289-90, 95 A. 468, 470 (1915); Langendorfer v. Spearman, 797 A.2d 303, 307 (Pa. Super. 2002). Accord Garr v. Peters, 773 A.2d 183, 189 (Pa. Super. 2001) (“[a] court may exercise its civil contempt power to enforce compliance with its orders ...”). For that reason, one judge cannot punish a person for a contempt committed before another court. See Commonwealth v. Lofton, 389 Pa. 273, 281, 133 A.2d 203, 206 (1957). Hence, if the plaintiff seeks to enforce Judge Barrasse’s discovery order via a petition for civil contempt or other sanctions, such a request should be presented to Judge Barrasse in accordance with the coordinate jurisdiction doctrine.

ORDER

And now, April 15, 2003, upon consideration of plaintiff’s motion for sanctions, the memoranda of law submitted by the parties and the putative intervenor, and the oral argument of counsel on April 10, 2003, and inasmuch as the Pennsylvania Rules of Civil Procedure do not provide for vicarious liability for sanctions as a result of discovery violations by an expert or witness, it is hereby ordered and decreed that the plaintiff’s motion for sanctions under Pa.R.C.P. 4019(c)(2) and (3) is denied without prejudice to the right of the plaintiff to request sanctions or a finding of civil contempt directly against the defendant’s medical expert in question.

      . In the interim, Dr. Feinstein filed a petition to intervene on January 23, 2003, and his intervention petition has been made returnable for a hearing on May 22, 2003. (Id., nos. 33, 43.)


author: LASH, J.,

text:
    Tomalonis v. Early American Builders Inc.

      C.P. of Berks County,
    no. 93-3840.

      Arthur S. Klein, for plaintiff.

      William F. Ochs, for petitioner, Alan B. Ziegler, Esquire.

    January 29, 2003

      . Neither Early American Builders Inc., the defendant in this case, nor Mogel, Speidel, Bobb & Kershner, attomeys-at-law, joined as a party in this matter by stipulation entered as an order of court on September 20, 2002, participated in the matter at bar.

   LASH, J.,

This matter comes before the court pursuant to the petition of Alan B. Ziegler, Esquire, “to seek leave to apply liened funds to attorney’s lien.” Petitioner seeks to have this court declare valid a claimed charging lien against two attorney escrow accounts, in satisfaction of attorney’s fees incurred. A hearing was held on January 24, 2003. For reasons set forth, this court denies the petition.

Petitioner attorney was originally retained by plaintiff to handle a collection claim against defendant, Early American Builders Inc. Plaintiff and defendant eventually settled the collection matter, with the terms set forth in a written stipulation dated March 29,1996, approved by the court on April 2, 1996. The settlement required defendant to pay plaintiff the sum of $8,539.36 through installment payments, with the payments to be held in escrow by petitioner, pending distribution.

Pursuant to the stipulation, petitioner is currently holding, as escrow agent, the sum of $4,767.08 received as payments from defendant. Additionally, there is a separate fund held by defendant’s attorney, Mogel, Speidel, Bobb & Kershner, in the amount of $1,884.84.

Petitioner claims that he, and not his former client, is entitled to these funds for payment of outstanding attorney’s fees incurred in representing plaintiff in the collection action. Petitioner claims the entitlement is based on his belief that he has a valid charging lien against the funds, accruing from statements made by plaintiff in response to petitioner’s demand to be paid. Plaintiff objects, arguing that there was never an agreement for a charging lien and that the escrowed funds rightly belong to him and not petitioner.

This matter was previously considered and decided by Berks County court, however, within a different context, due to plaintiff filing for bankruptcy. On May 9, 2001, the court denied the petition, and filed an opinion on July 17, 2001. In its opinion, the court stated that petitioner’s claim and lien (if any) was rendered null and void by the Bankruptcy Court’s discharge order of August 20, 1998, concluding therefore that petitioner was not legally entitled to recover from the escrowed funds. Petitioner appealed the court’s decision to the Superior Court of Pennsylvania, who filed a memorandum opinion on June 18, 2002, reversing the trial court and remanding for further proceedings. The Superior Court held that, while the underlying debt and judgment for attorney’s fees was discharged by the Bankruptcy Court, the lien (if valid) survived the discharge because plaintiff debtor failed to secure an order avoiding the lien. The Superior Court remanded the matter back to this court to determine whether the charging lien exists.

The test for determining whether a charging lien will be recognized and applied appears in the case of Recht v. Clairton Urban Development Authority, 402 Pa. 599, 168 A. 2d 134 (1961). To establish the lien, petitioner must meet five requirements:

“(1) that there is a fund in court or otherwise applicable for distribution on equitable principles,
“(2) that the services of the attorney operated substantially or primarily to secure the fund out of which he seeks to be paid,
“(3) that it was agreed that counsel look to the fund rather than the client for his compensation,
“(4) that the lien claimed is limited to costs, fees or other disbursements incurred in the litigation by which the fund was raised, and
“(5) that there are equitable considerations which necessitate the recognition and application of the charging hen.” (At pp. 138-39.)

Plaintiff concedes that elements 1, 2, 4, and 5 have been met by petitioner. The sole question before this court is whether there was an agreement that counsel look to the fund rather than the client for his compensation.

The evidence upon which petitioner relies in support of his claim includes an amended affidavit with attachments filed with the court on May 4, 2001, a second affidavit of Alan B. Ziegler filed September 5, 2002, an affidavit of John A. Fielding DI, filed September 5,2002, and the testimony in open court of petitioner and John A. Fielding III, on January 24, 2003.

From these sources, we deduce the following operative facts: On or about May 27, 1993, plaintiff retained petitioner to represent him in the collection action. Petitioner then memorialized the arrangement by letter of same date. The arrangement was that petitioner would handle the matter at an hourly rate of $95 an hour, requiring a retainer in advance of $500. Out-of-pocket costs would be borne by plaintiff. Petitioner then performed work on behalf of plaintiff resulting in the settlement with defendant. Petitioner claims that as a result of his efforts, he compiled billable hours for which he was not paid. Having not received satisfaction from plaintiff, petitioner resorted to filing his own collection matter against plaintiff at the district justice level, which resulted in a judgment in petitioner’s favor in the amount of $8,000. This award was reduced to judgment, but as stated, was discharged in the bankruptcy filed by plaintiff. In addition to his formal collection efforts, petitioner alleges several conversations with plaintiff, wherein he made demand for payment of his fees. He references this discussion in paragraph 7 of his second affidavit, which' states the following:

“(7) On many occasions, Joseph Tomalonis told the affiant, Alan B. Ziegler, that Mr. Ziegler’s legal fees in this case would be paid from his recovery in the lawsuit against Early American Builders Inc. Mr. Tomalonis stated to the affiant, Alan B. Ziegler, on numerous occasions, that ‘You will get your money from the Greek.’ The ‘Greek’ was Demetrios Zoucarious, the owner of Early American Builders Inc.”

In his affidavit, John A. Fielding III, buttressed petitioners’ account, stating the following:

“(9) From May of 1993 to November 2, 1996, many attempts were made in my presence to address the subject of the outstanding bill for attorney’s fees with Mr. Tomalonis.
“(10) From May of 1993 to November 2,1996, on the occasions when Mr. Ziegler would approach Mr. Tomalonis for payment, Mr. Tomalonis would indicate in my presence that Mr. Ziegler should look to any recovery from Early American Builders Inc. for payment of his fees.
“(a) on numerous occasions in my presence, Mr. Tomalonis would indicate that Mr. Ziegler should apply any fund created by recovery from the defendant to his outstanding debt with Mr. Ziegler by declaring, ‘get it from the Greek,’ or ‘get your money from the Greek.’
“(b) By this, I understood Mr. Tomalonis to be identifying Dimitidos Zahariadas, the owner of Early American Builders Inc. and Early American Builders, Inc. as the source of money for Mr. Ziegler’s attorney’s fees.”

Petitioner has not sustained his burden with these facts. For one, the statements allegedly made by plaintiff such as, “Get your money from the Greek,” are vague and equivocal. While plaintiff could have been referring to the escrowed funds, he also could have been speaking out of frustration or sarcasm or simply avoiding giving petitioner a direct answer. He could have had the belief that he could recover attorney’s fees from defendant through a legal action. In any event, these bald statements do not support petitioner’s assertion that plaintiff was offering or agreeing to the imposition of a charging lien upon the escrowed funds. There is no evidence that plaintiff understood or was advised of the nature and effect of a charging lien, in general, or vis-a- vis his bankruptcy action. Interestingly, plaintiff was never called as a witness to explain his statements, nor his understanding of the fee.

There is also insufficient evidence that petitioner agreed to look to the escrowed funds rather than the client for compensation. The language of Recht (supra) implies that petitioner can seek payment of fees from either the client directly, or from the funds, but not both. Petitioner cannot dispute that his fee agreement required payment on an hourly basis, initially from a retainer, then from invoices billed to the client directly. The fact that petitioner was constantly in contact with plaintiff questioning him about when he would be paid establishes that there was no agreement to look to the fund in lieu of direct payment. In Recht, the court noted that the fact that the attorney submitted a bill to and demanded payment of his client prior to creation of the fund secured by a jury trial supported the conclusion that an agreement for a charging lien never existed. (At pp. 139-40.)

This court is also troubled by the fact that no written agreement regarding a charging lien exists. As a result of the conversations, it would have been a mere formality for petitioner to prepare a written fee agreement for a charging lien, terminating the prior agreement and setting forth the new terms. If plaintiff was agreeable to such terms, as petitioner suggests, both parties could have signed the agreement and petitioner’s rights would have been protected.

Further, the Rules of Professional Conduct require a written fee agreement in this circumstance. Rule 1.5(b) sets forth:

“When the lawyer has not regularly represented the client, the basis or rate of the fees shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.”

Petitioner noted that he regularly represented plaintiff in “numerous civil and criminal proceedings.” (Amended affidavit of Alan B. Ziegler, paragraph 2.) However, he also alleges in his second affidavit at paragraph 3 that his first meeting with plaintiff was on May 27, 1993, when he was retained to file the collection action against defendant, resulting in the creation of the escrowed funds. Under 1.5(b), this particular engagement required a written fee agreement. The only written statement regarding a fee agreement appearing in the record is the initial correspondence from petitioner to plaintiff dated May 27, 1993. Thus, if you assume that petitioner is an attorney who complies with the Rules of Professional Conduct, then you would also assume that if an agreement for a charging lien had been reached between petitioner and plaintiff, that such an agreement would have been reduced to writing. Such was not the case here. For the foregoing reasons, we enter the following order:

ORDER

And now, January 29,2003, upon consideration of the petition of Alan B. Ziegler, Esquire, to seek leave to apply lien funds to attorney’s lien, and after hearing held, the same is hereby denied.

      . A copy of the Superior Court opinion is attached as appendix A to this decision. [Not published herein.]

      . John A. Fielding III, is an attorney previously employed by petitioner.

      . The Superior Court’s opinion sets forth a comprehensive statement of the pertinent facts up to the time of the appeal. The Superior Court’s statement of these facts is incorporated into this opinion.

      . Even if plaintiff had been a regular client of petitioner at the time petitioner was retained on the collection matter, it is unlikely that petitioner could rely on a verbal charging agreement without violating the Code of Professional Conduct. The first words of 1.5(b), stating: “when the lawyer has not regularly represented the client,” appear to permit attorneys to forego written fee agreements with regular clients when the arrangements for representation are on the “usual basis.” Here, a charging fee agreement would be unique, not “regular.” Thus, the spirit of 1.5(b), if not the letter, would support reducing a charging fee to writing for a regular client as well, under these facts.


author: SMITH, J.,

text:
    Brown v. Marraccini

      C.P. of Northampton County,
    no. C0048 CV 2000 007471.

      Mark F. Greenfield, for plaintiffs.

      Christine E. Munion, for defendants.
    December 30, 2002
   SMITH, J.,

I. FACTUAL AND PROCEDURAL HISTORY

On October 16, 2000, plaintiffs Tami Brown and Jeffrey Williams filed a complaint against defendants Dominick W. Marraccini and the City of Easton, alleging negligence arising out of an automobile accident. According to the plaintiffs’ complaint, on or about October 20, 1998, at approximately 9 a.m., plaintiff Tami Brown was operating a motor vehicle in which Jeffrey Williams was a passenger. The vehicle was proceeding in a southwesterly direction on Walnut Street at or near its intersection with Washington Street in Easton, Northampton County. At the same date and time, defendant Dominick W. Marraccini was operating a motor vehicle owned by defendant City of Easton. The vehicle operated by Marraccini was traveling westbound on Washington Street at or near its intersection with Walnut Street in Easton. The vehicles collided, and as a result of the collision, plaintiffs claim they suffered severe and permanent bodily injury.

On October 30, 2002, defendants Marraccini and Easton filed a motion for summary judgment, claiming that they are immune from suit based on the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541. Defendants further claim that their conduct does not meet one of the exceptions to governmental immunity. Specifically, defendants contend that plaintiffs can only recover pain and suffering damages against a governmental entity in a tort action “in cases of permanent loss of a bodily function, permanent disfigurement or permanent dismemberment.” 42 Pa.C.S. §8553(c)(2)(ii). In support of their motion, defendants cite portions of plaintiff Tami Brown’s deposition testimony indicating that she merely has difficulty blow drying her hair and reaching for things. Further, defendants note that none of the chiropractors who treated plaintiff Jeffrey Williams opined that he has a permanent injury nor have the chiropractors restricted his activities.

On November 29, 2002, plaintiffs filed a response to the defendants’ motion for summary judgment. Plaintiff Tami Brown claims that she suffered various serious and permanent personal injuries, serious impairment of body function and permanent serious disfigurement as a result of the accident. According to plaintiffs’ complaint, Brown’s injuries include: cervical brachial syndrome, neuromuscular compression of the subclavian artery on the left, myospasm of the scalenus on the left, myospasm of the trapezius on the left, intersegmental dysfunction of the cervical spine, somatic dysfunction of the left scapulothoracic region, bulging annuli at C3/4, C4/5, and C5/6, cervical cranial syndrome, cervical strain and sprain, thoracic spine pain, segmental dysfunction, subluxation and other ills and injuries. Plaintiff submitted medical records to this court with her memorandum of law in response to defendants’ motion for summary judgment. According to a letter from Dr. Dan Allen, a physician with Ziegler Chiropractic Clinic, some of the injuries sustained by Tami Brown “will be permanent in nature.” (Plaintiffs’ complaint, exhibit “A”.)

Plaintiff Jeffrey Williams claims he suffered various serious and permanent personal injuries, serious impairment of body function and permanent serious disfigurement. In plaintiffs’ complaint, Williams’ alleged injuries include: cervical neuritis, myofascitis, lumbar myospasm, left hip pain, cervical spine pain, cervical segmental dysfunction, cervical subluxation, cervical strain and sprain, lumbar pain, lumbar segmental dysfunction, lumbar subluxation, lumbar strain and sprain, and other ills and injuries. According to plaintiffs’ memorandum of law in response to defendants’ motion for summary judgment, Dr. Ziegler opined that some of Williams’ injuries attributable to the accident are permanent. Further, the medical records included in plaintiffs’ memorandum of law indicate that Williams is no longer able to drive “tanker” trucks. (Plaintiffs’ complaint, exhibit “B”.) With regard to Williams’ continuing neck pain, the medical records indicate that Williams “will basically have to learn to live with these residuals.” (Plaintiffs’ complaint, exhibit “B”.)

II. DISCUSSION

A. Summary Judgment

Defendants move for summary judgment, claiming that plaintiffs have not established a permanent loss of a bodily function necessary to satisfy the exception to governmental immunity under 42 Pa.C.S. §8553(c)(2)(ii). According to the Pennsylvania Rules of Civil Procedure, summary judgment is properly granted where no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2; O’Brien Energy Systems Inc. v. American Employers’ Insurance Co., 427 Pa. Super. 456, 461, 629 A.2d 957, 960 (1993), appeal denied, 537 Pa. 633, 642 A.2d 487 (1994). The grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions, and affidavits support a conclusion that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Penn Center House Inc. v. Hoffman, 520 Pa. 171, 175, 553 A.2d 900, 902 (1989).

Further, summary judgment is appropriate only in those cases which are clear and free from doubt. Lyman v. Boonin, 535 Pa. 397, 404, 635 A.2d 1029, 1032 (1993). The record must be viewed “in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Ertel v. Patriot- News Co., 544 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996) (citing Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-45, 615 A.2d 303, 304 (1992)). Pennsylvania Rule of Civil Procedure 1035 states that a party may move for summary judgment where “an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

B. Governmental Immunity

The basis for defendants’ motion for summary judgment is governmental immunity. The Pennsylvania Legislature has specifically excluded local agencies from liability for tort claims arising from the acts of the agency or its employees. According to the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541,

“Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.”

The purpose of the Political Subdivision Tort Claims Act is to insulate political subdivisions from liability, except for injuries sustained to persons in accordance with one of the specific exceptions listed in the Act. Mascaro v. Youth Study Center, 514 Pa. 351, 355, 523 A.2d 1118, 1120 (1987). The relevant exception in the instant case is found in 42 Pa.C.S. §8553(c)(ii), which states that damages shall be recoverable only for pain and suffering “only in cases of permanent loss of a bodily function, permanent disfigurement or permanent dismemberment ....”

In their complaint, plaintiffs claim both permanent loss of bodily function and permanent disfigurement. In Walsh v. City of Philadelphia, 526 Pa. 227, 585 A.2d 445 (1991), the Pennsylvania Supreme Court defined “permanent loss of a bodily function” as:

“A permanent loss of a bodily function means that the plaintiff, as a [proximate] result of the accident, can no longer perform a physical act or acts which she was capable of performing prior to injury proximately resulting from the accident), and that this loss of bodily function is permanent, that is that this loss of bodily function will exist for the remainder of her . . . life.” 526 Pa. at 241, 585 A.2d at 452 (quoting Savitt v. City of Philadelphia, 557 F. Supp. 321, 328 (E.D. Pa. 1983)..

The Walsh court also adopted Black’s Law Dictionary’s definition of “permanent” and “disfigurement” to describe permanent disfigurement. It defined permanent as “[continuing or enduring in the same state, status, place, or the like, without fundamental change, not subject to fluctuation, or alteration, fixed or intended to be fixed; lasting; abiding; stable; not temporary or transient^]” and disfigurement as “[tjhat which impairs or injures the beauty, symmetry, or appearance of a person or thing; that which renders unsightly, misshapen, or imperfect, or deforms in some manner.” Walsh, 526 Pa. at 243, 585 A.2d at 453. These definitions — of “permanent loss of bodily function” and “permanent disfigurement” — necessarily rely on factual determinations.

The Commonwealth Court of Pennsylvania recently reversed a common pleas court’s grant of summary judgment, finding a genuine issue of material fact as to whether injuries constituted “permanent loss of bodily functions” under Walsh. Laich v. Bracey, 776 A.2d 1022 (Pa. Commw. 2001). In Laich v. Bracey, Ms. Laich was exiting a school bus when it was hit from behind by a mini-van, owned by Bucks County Intermediate Unit and driven by Ms. Bracey. 776 A.2d at 1023. The Bucks County Court of Common Pleas granted summary judgment in favor of defendants Bucks County Intermediate Unit and Bracey, finding that there existed no genuine issue of material fact. Id. The trial court concluded that the plaintiff’s experts failed to opine with any degree of probability that she suffered a permanent loss of bodily function. 776 A. 2d at 1023-24.

According to the Commonwealth Court in Laich, “While we agree that one may reasonably argue that these ailments do not meet the standard set forth by our Supreme Court in Walsh, we nevertheless believe that this case presents a question of fact more appropriately addressed by a jury.” 776 A.2d at 1025. The court noted that the plaintiff presented reports from numerous medical experts showing that she suffered some injury as a result of the accident. Furthermore, according to the Commonwealth Court, “if given the opportunity, [plaintiff] will undoubtedly testify at trial as to the extent of her injuries and the performance of her bodily functions both before and after the accident.” Id. The court noted that had the trial court viewed the record in the light most favorable to the plaintiff, it would have properly concluded that an issue of material fact existed as to whether the plaintiff suffered a permanent loss of bodily function. Id.

Moreover, in Alexander v. Benson, 812 A.2d 785 (Pa. Commw. 2002), the Commonwealth Court of Pennsylvania opined, “Recently, both our Supreme Court and Superior Court reiterated the principle that certain essential determinations, including whether a plaintiff suffered a compensable injury and the extent of such an injury, are strictly within the purview of a jury.” 812 A.2d at 788 (citing Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001), and Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 2001)). In Alexander, the Commonwealth Court refused to disturb a jury’s finding that, although the plaintiff had a four millimeter permanent scar, his injury did not constitute a “permanent disfigurement” to entitle him to damages from a local government agency. The court explained that the determination of whether the plaintiff had a permanent disfigurement “was strictly within the jury’s purview.” Alexander, 812 A.2d at 788.

We note, as the court did in Laich v. Bracey, that one may reasonably argue that the injuries sustained by plaintiffs in this matter do not rise to the level of permanent loss of bodily functions or permanent disfigurement. However, plaintiffs’ doctors have opined that some of plaintiffs’ injuries may be permanent in nature. When viewed in the light most favorable to plaintiffs, we believe an issue of material fact exists regarding whether plaintiffs’ injuries are permanent. For the foregoing reasons, summary judgment is inappropriate in this case.

m. CONCLUSION

In light of the principles set forth by the Pennsylvania Supreme Court and Commonwealth Court, and the record before this court, we are unconvinced that there exists no genuine issue of material fact as to whether plaintiffs suffered a permanent loss of bodily function and a permanent disfigurement. Plaintiffs presented several medical reports, including reports indicating that the injuries sustained by the plaintiffs may be permanent. When viewing the evidence in the light most favorable to plaintiffs, including the medical records produced and plaintiffs’ own testimony, we conclude that an issue of material fact exists as to whether plaintiffs suffered a permanent loss of bodily function and a permanent disfigurement. To find otherwise would force this court to make a credibility determination that is more appropriately within the purview of a jury. Accordingly, the issue of whether the plaintiffs suffered such injuries is a question for the jury and defendants’ motion for summary judgment is denied.

Wherefore, we enter the following:

ORDER

And now, December 30, 2002, following review of defendants Dominick W. Marraccini’s and City of Easton’s motion for summary judgment and the plaintiffs’ response thereto, it is hereby ordered that defendants’ motion is denied.

      . Defendant Dominick W. Marraccini is employed by the City of Easton and was operating a police vehicle owned by the City of Easton on the date of this incident.


author: OLSON, J.,

text:
    Commonwealth v. Gilles

      C.P. of Indiana County,
    no. 1061 Crim. 2001.

      Michael Mandler, for plaintiff.

      Michael Considine, for defendant.
    December 27, 2002
   OLSON, J.,

This matter comes before the court for consideration of defendant’s petition for writ of habeas corpus. For those reasons set forth in this opinion, defendant’s petition is granted and all charges against him are dismissed.

CASE FACTS

The court is presented with a petition for writ of habeas corpus, the sole inquiry is whether the Commonwealth has established a prima facie case at the preliminary hearing. Commonwealth v. Austin, 394 Pa. Super. 146, 575 A.2d 141 (1990). A prima facie case exists where the Commonwealth establishes probable cause to believe a crime has been committed and that the defendant is the offender. Commonwealth v. Gray, 322 Pa. Super. 37, 469 A.2d 169 (1983).

In considering the merits for a petition for writ of habeas corpus, the court will ordinarily review the transcript from the preliminary hearing. A transcript has been provided in this case. In addition, the parties are entitled at hearing to present additional evidence on the issue. Commonwealth v. Morman, 373 Pa. Super. 360, 541 A.2d 356 (1988). In this case, the parties chose not to have a hearing and elected instead to present this court with a stipulated supplemental record. This record includes the following: a solicitation permit request defendant submitted to the Indiana University of Pennsylvania on October 5, 2001 (request denied); IUP’s solicitation policy; the IUP preliminary crime report authored by Sergeant Gregory Davis, arresting officer; still and video photography taken of the incident immediately before and after the defendant’s arrest; a transcript of audiotape recording by James Gilíes immediately before and after his arrest; and a transcript of July 17, 2002, audio deposition given by Sergeant Gregory Davis, arresting officer. All of these submissions, together with the criminal file at 1061 Crim. 2001, shall constitute the record this court shall use in deciding defendant’s petition.

Defendant is charged with disorderly conduct, failure to disperse and defiant trespass. These charges arise from events which occurred on October 5, 2001, on the IUP campus in a public area known as the Oak Grove. At approximately 11:40 a.m., the defendant began to preach a religious message. He claimed that every Buddhist, Hindu, Muslim, Mormon and Jehovah Witness is damned to hell. He declared most IUP students were damned to hell. He characterized the majority of IUP students as “whores and whoremongers,” with campus fraternities being “nothing more than havens and hideouts for drunken homy little devils.” As defendant continued to preach a crowd soon gathered.

Defendant began to trade insults with certain members of the crowd. Defendant suggested certain members were communists or homosexuals. The exchange between defendant and certain crowd members eventually turned to the relationship between homosexuality and Christianity. Some crowd members loudly disagreed with defendant’s views, while others laughed or simply listened quietly. After about 20 minutes, the IUP Police arrived. The following exchange then occurred:

“Davis: Excuse me, do you have a permit to be here?
“Gilíes: Do I need one?
“Davis: Yes, as a matter of fact you do.
“Gilíes: Oh, where do I get one?
“Davis: Pick up your book, come over here.
“Gilíes: I didn’t need one last time.
“Davis: Pick up your book.
“Gilíes: Who do I need to see?
“Davis: You’re talking to him. You can even do it the easy way.
“Gilíes: You’re administration?
“Davis: You can either do it the easy way, or you can do it the hard way. It doesn’t matter to me.
“Gilíes: I don’t care either. I beat you last time.
“Davis: Turn around. (Defendant was then arrested.)

The court now will consider defendant’s petition with respect to each of the offenses charged.

DISCUSSION

A. Disorderly Conduct

Defendant was actually charged with two counts of disorderly conduct. In considering the application of defendant’s petition to these charges, the court is guided by those standards enunciated by the Superior Court in Commonwealth v. Gowan, 399 Pa. Super. 477, 582 A.2d 879 (1990). In Gowan, the appellants, two preachers of the Anabaptists’ faith, were preaching and distributing literature to lunchtime passers-by in a public park in Johnstown, Pennsylvania. Appellants were arrested for disorderly conduct when they allegedly refused police officers’ warnings to lower their voices. At non-jury trial, the court found defendants guilty of disorderly conduct as a summary offense. Defendants appealed.

The Superior Court vacated defendants’ convictions. As a threshold consideration, the Superior Court observed: “Standing on a sidewalk or [any] public place reading from the Bible and expressing dissatisfaction with the status quo are constitutionally protected exercises of free speech.... Since the issue in this case turns on the unreasonableness of noise appellants created in exercising their First Amendment right, we must carefully balance the fundamental right to free speech against the annoyance or inconvenience to other persons. . . . [Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54 (1980)] held that this section may not be used to punish anyone exercising protective] First Amendment rights.” 399 Pa. Super. 477, 480, 582 A.2d 879, 881. In examining the facts before it, the court concluded: “From the testimony presented, we cannot say the activity of the appellants, in the exercise of their right to free speech, created more than an annoyance to the people in and around the park. Other than the police, who went to the park in response to an unspecific complaint, only one person testified to being directly affected by the activity of appellants. The description of the activity of the people in and around the park is consistent with people exhibiting a range of reactions to the preaching, some being annoyed and moving away from it, others remaining to watch and listen, others laughing because of it. Based on all of the testimony, the conclusion reached by the trial court that the preaching constituted unreasonable noise cannot be supported beyond a reasonable doubt.” 399 Pa Super. 477, 482, 582 A.2d 879, 881-82.

J.S. v. Bethlehem Area School District, 569 Pa. 638, 807 A.2d 847 (2002), provides a useful overview of the parameters of protected speech. In this case, which involved the expulsion of a student who used an internet website to post derogatory, profane, offensive, and threatening statements directed towards one of the student’s teachers and his principal, the court observed:

“However, while the freedom of speech is rightfully cherished, it is also clear that this right of free speech ‘is not absolute at all times and under all circumstances.’ .. . For example, certain types of speech can be regulated if they are likely to inflict unacceptable harm. These narrow categories of unprotected speech include ‘fighting words,’ speech that incites others to imminent lawless action, . . . obscenity, . . . certain types of defamatory speech, . . . and ‘true threats.’ Thus, certain classes of speech may be regulated, or even punished, by government and such action will not violate the Constitution.” 807 A.2d 847, 854. (citations omitted)

When it applies these standards to the record now before it, this court determines the Commonwealth has failed to make out a prima facie case for disorderly conduct. Although defendant’s remarks doubtless offended some, they do not constitute fighting words, true threats, or invitation to violence. Many of the listeners reacted by being quietly attentive or simply laughing at the proceedings. The speech involved here is protected and may not be suppressed through the use of the disorderly conduct statute. Further, the Commonwealth has not made out a case that the noise involved was unreasonable or that the defendant’s conduct constituted a “hazardous condition.”

B. Failure to Disperse

This offense is described at 18 Pa.C.S. §5502, which provides:

“Where three or more persons are participating in a course of disorderly conduct which cause or may reasonably be expected to cause substantial harm or serious inconvenience, annoyance or alarm, a peace officer or other public servant engaged in executing or enforcing the law may order the participants and others in the immediate vicinity. A person who refuses or knowingly fails to obey such an order commits a misdemeanor of the second degree.” (emphasis added)

Since this offense requires an underlying finding of acts which constitute disorderly conduct, this court’s disposition of defendant’s disorderly conduct charges mandates a granting of defendant’s petition with respect to this offense as well. Further, as the emphasized language makes clear, this offense requires a finding that “three or more persons” are participating in a course of disorderly conduct. The record does not support such a finding. While others apparently were with the defendant when he preached, the record does not support a finding that any of these other individuals were engaged in any acts which remotely could be construed as disorderly conduct.

C. Defiant Trespass

As it considers this charge, the court is guided by two Pennsylvania Supreme Court cases. In Commonwealth v. Tate, 495 Pa. 158, 432 A.2d 1382 (1981), the defendants were arrested when they distributed leaflets outside of a private college’s building as the director of the Federal Bureau of Investigation was speaking at a public symposium. The Pennsylvania Supreme Court held that the college could not, consistent with defendants’ rights of freedom of speech, assembly, and petition, exercise the college’s right of property by invoking a standardless permit requirement in such a manner as to prevent defendants from presenting their point of view by distributing leaflets in an area normally open to the public. Such a permit requirement was not a “lawful condition” with which defendants were obligated to comply or be subject to conviction for defiant trespass.

In Commonwealth v. Downing, 511 Pa. 28, 511 A.2d 792 (1986), defendant sought admission to the Temple University Law Library. Although the defendant, who was not a law student, had a permit to enter the law library, this permit was not valid during final exam periods, when admission was restricted to law students only. The defendant nonetheless insisted he had a right to enter the law library. When he then refused a request to leave, the police were called and he was arrested for defiant trespass. Following his conviction, he appealed to the Pennsylvania Superior Court, which reversed, holding that the university law library was open to the public and the defendant therefore could not be convicted of defiant trespass.

The Supreme Court reversed the Superior Court and reinstated defendant’s conviction. The Supreme Court held that the university law library was not open to the public when the defendant attempted to enter it. The court observed: “Temple cannot receive, hold, or use property for any other purpose than its chartered purpose — the establishment and maintenance of an educational institution. The university’s law library then, like all other facilities owned by the university, is private property maintained as part of its educational facilities for the use of its students. Persons not affiliated with the university or its School of Law have no right to enter and use university facilities, including the law library, unless the university or its law school grants that privilege or license.” 511 Pa. 28, 34, 511 A.2d 792, 794.

Taken together, these cases articulate the basic right of a university such as IUP to reasonably regulate the use of its property. At the same time, any campus permitting scheme must have a uniform application and not be propagated or enforced for the purpose of suppressing constitutionally protected speech.

In the instant case, the court notes IUP has propagated detailed permitting regulations which, arguably, encompass the activity in which defendant was engaged. Further, unlike the vague regulations described in Tate, IUP’s regulations appear to be uniform, content neutral, and tailored to balance free speech issues with the need of the campus to meet its educational mission. Nonetheless, the court need not address whether in this case a proper balance has been struck. When the police approached the defendant he denied knowledge of the need for a permit. A brief and confusing exchange occurred between defendant and the police as to whether and how he could get a permit. At the end of this exchange, the police abruptly arrested the defendant. From this record, the court cannot find a prima facie case that the defendant ignored an unambiguous directive to leave the IUP campus. Thus, the court grants defendant’s petition with respect to this offense as well.

In doing so, the court is constrained to remind the defendant he is now aware of IUP’s permitting procedures and requirements. Among other things, IUP requires the defendant make the request himself, restricts the use of the Oak Grove for public solicitation of any kind, and imposes time requirements to permit proper consideration of the permit application. Whatever defenses or claims may be available to the defendant should he seek to reappear to IUP to preach on campus, ignorance of IUP’s permitting process is not one of them.

Wherefore, the court enters the following order.

ORDER

And now, December 27, 2002, upon consideration of defendant’s petition for writ of habeas corpus, said petition is granted. There is insufficient evidence to support the charges against defendant. Accordingly, all charges are dismissed.