author: STALLONE, J.,

text:
    Scheifele v. Consoli

      C.P. of Berks County,
    no. 1396-93 A.D.

      Lynn Erickson, for appellants.

      Christopher A. Stump, for appellee.
    July 7, 1997
   STALLONE, J.,

— This is a medical negligence action arising out of the performance of an allegedly unnecessary hysterectomy upon appellant Roxanne Scheifele by the appellee, Debra R Consoli, M.D. Because the issue for appellate review is whether this court erred in granting summary judgment in favor of Doctor Consoli and because of the fact that the appellants are now out of court as a result of our ruling, we will set forth in some detail the facts justifying the relief granted.

On May 27, 1993, the appellee served written expert witness interrogatories and a request for production of documents upon the appellants, who were represented at that time by Michael Mayro, Esquire. In her interrogatories, appellee requested the appellants to identify their expert witnesses who would testify at trial and the substance of their opinions relative to the appellants’ medical negligence claim. However, the appellants did not respond.

As a result, the appellee filed a motion to compel discovery on February 18,1994. Because the appellants failed to respond to that motion, we granted the same on March 17, 1994.

The appellants failed to comply with that order as well. As a result, the appellee filed her first motion for sanctions. The appellants failed to respond to that motion. Accordingly, we entered an order on September 1, 1994, granting that motion by awarding attorney’s fees to the appellee in the sum of $500. Because the appellants failed to pay that sum, the appellee filed a second motion for sanctions together with her first motion for summary judgment.

On October 5, 1994, Attorney Mayro, who had previously succeeded James J. Buckley, Esquire, withdrew his appearance for the appellants and Lynn Erickson, Esquire, entered hers, and she immediately filed a motion for reconsideration of this court’s September 1, 1994 order imposing sanctions. And although appellants, at the same time, also provided some answers to the appellee’s expert witness interrogatories, they did not identify any expert witnesses but stated instead that:

“Plaintiff [sic] has not yet determined whom they will call as expert witnesses at the trial of this case. As plaintiffs’ counsel is new to this case, the investigation is continuing and this information will be supplied to defendants as received.”

After hearing oral argument on the appellee’s second motion for sanctions for failure to pay the counsel fees and appellants’ motion for summary judgment, this court denied the appellants’ motion for reconsideration of the counsel fee order as well as the appellee’s second motion to impose additional sanctions for failure to pay those fees. We denied this latter motion upon the express representation by appellants’ counsel that they would disclose the identity of their expert witness and serve expert reports upon appellee’s counsel within a “short period of time” following that argument date. Moreover, in response to that representation, the appellee withdrew her first motion for summary judgment.

Because of the appellants’ failure to serve any expert report upon the appellee, Doctor Consoli filed a third motion for sanctions, in which she alleged that she not only had not received any such report but that she received no reply from her three additional written requests for the same following the July 6, 1995, argument court date. •

Appellants attempted to resolve the appellee’s third motion for sanctions by entering into the following written stipulation which was approved by this court on November 20, 1996, the same date, incidentally, that was set aside for a hearing and argument on the appellee’s third motion for sanctions and which reads as follows:

“It is hereby stipulated between all counsel of record that plaintiffs shall produce their expert report(s) no later than January 6, 1997. Plaintiffs shall be limited at trial to the testimony of experts that is identified by January 6, 1997. Any plaintiffs’ expert whose report is not produced by that date, shall be precluded from offering expert testimony at trial”

However, instead of producing their expert report on or before that January 6, 1997, date, appellants’ counsel forwarded a cover letter and memorandum to appellee’s counsel which read as follows:

“January 6, 1997

“Christopher A. Stump, Esquire

Barley, Snyder, Senft & Cohen LLP

126 East King Street

Lancaster, PA 17602-2893 Re: Scheifele v. Consoli

“Dear Chris:

“Accompanying this letter is the verbal report of Dr. Stephen A. Myers D.O. who reviewed the medicals in the above case and rendered his verbal report to plaintiffs’ then counsel. You might recall that I gave both you and the judge his name in his chambers at a previous argument in this case. I had some difficulty in tracking him down, but rather than bore you with the details, I spoke with him in December and he agreed to give a written report feeling certain that (because of the wording on his bill), he had retained the records. I didn’t find out until Friday that they could not locate plaintiff’s file. I did fax him this memo, and he reiterated to me that if the medical records were as indicated in the memo, his opinion would be as stated. I have sent him plaintiff’s medical records and he agreed to promptly issue a written report.

“I am also enclosing the doctor’s curriculum vitae in response to the discovery request.

“Finally, will you check with Doctor Consoli for dates and place where we can take her deposition. I will accommodate her as to both time and place. “Sincerely,

“Lynn Erickson”

The “memorandum to the file” attached to this cover letter read as follows:

“TO: FILE

“FROM: JGB

“DATE: January 29, 1992

“RE: Roxanne Scheifele

“I had a phone conversation with Steven Meyers on January 20. He indicated to me that in his opinion there were three aspects of the case that very likely amounted to malpractice.

“First: He pointed out to me that the procedure was apparently unnecessary. That is to say there was nothing wrong with Roxanne’s uterus. She didn’t have the fibroids that were diagnosed. There were indications in the record and specifically the size of the uterus would suggest that it was normal. It was a perfectly normal size. He wants to see the ultrasound report and also the ultrasound pictures themselves to make an analysis as to whether there was any medical basis for the determination to proceed with surgery, but it is his opinion that the surgery was unnecessary. He also notes that because she had had four cesarean section births, the procedure of the cesarean section involved disengaging or separating the bladder from the uterus in order to perform the cesarean, and that each time you do that you generate scar tissue and the bottom line is that this put Roxanne more at risk than someone who had not had exactly the same complications that she had and therefore it is doubly damaging that they did unnecessary surgery. There was apparently no benefit to her and, of course, she was at more of a significant risk of having complications and did in fact have the complications.

“Second: The records of the surgery indicate that they encountered bleeding in the wall of the bladder during the surgery and that they cauterized the bleeding. He indicates that that is specifically not the proper procedure and that the proper procedure in that situation is to legate the bleeding. He indicated to me that apparently the procedure of cauterizing the bladder could in fact weaken it and it is very possible in fact that the fistula eventually developed where the cauterizing took place.

“Third: He indicated that in the post-op in the recovery room, they had some concerns about problems, and they in fact apparently injected 6cc of dye into the bladder as a test and what he indicated to me as far as that is concerned is that this action was an improper way to check for any problem. If you are going to inject dye into the bladder you have to put a lot more than 6cc into it before there is much of a chance that it will leak.

“I spoke with Roxanne and she indicated to me that the ultrasounds were done directly in Dr. Consoli’s office by someone in her office. She did not know exactly who did it. She also indicated that she was surprised and concerned. Apparently the ultrasound was not performed externally, as she had expected, but that they in fact inserted an instrument up into her uterus to do the ultrasound.

“NOTE: I spoke with both of them and they have had almost a total cessation in their sexual relations since the surgery.

“She indicated to me that when she went in to see the Dr. about some other things, but that along with this she wanted to find out about having her tubes untied to see whether she could conceive, so the questions relative to an unnecessary surgery is really important.

“JGB/ljm END OF MEMO”

In view of the foregoing, the appellee filed a second motion for summary judgment. In that motion, she averred that the above memorandum did not qualify as an expert report, and that inasmuch as the January 6, 1997, deadline, as agreed to by the parties in the written stipulation dated November 20, 1996, had passed, the appellants were precluded from introducing any expert testimony at trial and that, since the appellants would be unable to prove their case at trial without such evidence, the appellees are entitled to summary judgment as a matter of law. After a hearing and argument, this court entered an order granting that second motion for summary judgment. This timely appeal followed.

As stated at the outset, the sole issue for appellate review is whether this court erred in granting summary judgment in favor of the appellee.

As a result of the recent amendments to our Pennsylvania Rules of Civil Procedure pertaining to summary judgments, the procedure and standard for granting them are now clear. That is that, after the relevant pleadings are closed, any party may move for summary judgment. Pa.R.C.P. 1035.2; see also, Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996). In order to grant summary judgment, a reviewing court must not only find an absence of a genuine dispute of a material fact relative to the particular claim for relief being asserted but also determine that the moving party is, therefore, entitled to judgment as a matter of law. Beach v. Burns International Security Services, 406 Pa. Super. 160, 593 A.2d 1285 (1991). Accordingly, when a non-moving party responds to a motion for summary judgment which is filed by a party not having the burden of proving the essential elements of the claim at trial, the party having that burden must set forth in the form of a written “response” the evidence which that party has and which is material to the successful outcome of his/her claim to satisfy the court that there is a genuine dispute as to one or more of the material facts necessary to the successful outcome of his/her claim and, therefore, at that point in time the moving party is not entitled to a (summary) judgment as a matter of law. The failure to respond at the summary judgment hearing/argument with such written evidence will justify the court in finding that there is no “genuine dispute” of a material fact and, therefore, since those genuinely undisputed facts favor the moving party who does not have any burden of proof at trial that the moving party is entitled to summary judgment against the non-moving party as a matter of law. Ertel, supra.

As applied to the case at bar, the appellee contends that in order to meet their burden at trial, the appellants would have to present expert witness testimony to establish each element of their medical negligence claim, such as duty of care, breach of that duty, causation, and damages, and, therefore, their failure to show the court in writing at the summary judgment hearing/argument that they have such testimony entitles the appellee to (summary) judgment as a matter of law.

There is no doubt that the November 20,1996 written stipulation clearly required the appellants to serve an expert report upon the appellee no later than January 6, 1997, and that, in the event the appellants failed to do so, they would not be permitted to submit any expert testimony at trial. And, although appellants now argue that the written memorandum sent to appellee’s counsel on January 6, 1997 is sufficient to constitute an expert report, it clearly is nothing more than a memorandum to the file generated by appellants’ prior counsel, James G. Buckley, Esquire, regarding a conversation which he allegedly had with appellants’ proposed expert witness Steven A. Meyers D.O., five years earlier. Appellants’ contention is also belied by the fact that, in the first paragraph of her cover letter, appellants’ counsel clearly states that “he [Doctor Meyers] agreed to promptly issue a written report.” That alone clearly indicates that appellants themselves did not consider the five-year-old memorandum to the file as the expert’s report.

These being the findings of this court at the summary judgment hearing/argument, we went on further to determine whether the appellants’ medical negligence claim required the proof of an essential element by expert testimony. Generally, a plaintiff must prove medical negligence by expert testimony, unless the matter at issue is so simple and the lack of skill or want of care is so obvious that the determination of negligence is within the range of the ordinary experience and comprehension of a layperson. See Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 456, 437 A.2d 1134 (1981). Appellants’ claim that Doctor Consoli’s performance of a hysterectomy on her was unnecessary and, therefore, medical malpractice does not fall within the latter category. As a result, we conclude that the appellants cannot prove their medical negligence claim at trial without expert testimony. And since they have failed to show this court at the summary judgment hearing/argument that they have evidence sufficient to create a genuine issue of fact necessary for the appellants to obtain relief at trial on their claim, i. e., that Doctor Consoli breached her duty to the appellants and that that breach caused the injuries and losses for which they seek money damages, they are precluded by law from proceeding further with their claim.

Appellants finally argue that this case can still proceed because they have also made a claim for “lack of informed consent” and that, unlike medical negligence, it does not require expert opinion testimony. However, when we review appellants’ complaint and other documents tending to set forth their claim, we find that they have not pleaded any claim based upon that theory for recovery. Rather, the complaint reveals that the appellants’ claim is based entirely upon alleged acts of medical negligence committed by the appellee and from which lack of informed consent cannot be reasonably inferred.

And so, for all of the foregoing reasons, we reaffirm our order granting summary judgment in favor of the appellee and respectfully urge the Superior Court of Pennsylvania to deny this appeal.

      . In their complaint, the appellants named Community General Hospital, the appellee and several other physicians as party defendants. However, they subsequently agreed to dismiss Community General Hospital as a party defendant pursuant to a written stipulation of counsel approved by this court on July 28, 1995. Thereafter, they agreed to dismiss the other physicians as party defendants pursuant to a written stipulation of counsel approved by this court on November 28, 1995.

      . The text of that order is as follows:
      And now, March 17, 1994, the above-named defendants, Debra P. Consoli M.D., Steven K. Kohl M.D., and Jeffrey C. Zerbe M.D., individually and trading as Ebersol-Kohl-Zerbe Associates, having filed a motion to compel answers to interrogatories and request for production of documents, and the plaintiffs having failed to file and serve upon defendants a brief in opposition to defendants’ motion in accordance with B.R.C.P. 211.2(d) and the plaintiffs having failed to request an extension of time in which to file and serve their briefs upon defendants, it is ordered as follows.
      The defendants’ motion is granted. Plaintiffs shall have 90 days from the date of this order to fully answer defendants’ interrogatories and request for production of documents or suffer appropriate sanctions upon motion by the defendants.

      . The text of that order is as follows:
      And now, September 1, 1994, upon consideration of the motion for sanctions filed by defendants Debra P. Consoli M.D., Thomas D. Ebersole M.D., Steven J. Kohl M.D., and Jeffrey C. Zerbe M.D., individually and trading as Ebersole-Kohl-Zerbe Associates for failure of the plaintiffs to respond to the defendants’ discovery requests after having been ordered to do so by the court pursuant to an order entered on March 17, 1994, and it appearing that the plaintiffs have not filed and served upon the defendants their brief in opposition to the motion for sanctions in accordance with B.R.C.P. 211.2(d), and it further appearing that the plaintiffs have not requested an extension of time in which to file and serve their brief of argument in accordance with B.R.C.P. 211.5(a), the motion for sanctions is hereby sustained. B.R.C.P. 211.5(d).
      Accordingly, it is ordered that the plaintiffs pay over to the moving defendants the sum of $500 for the attorney’s fees incurred in the preparation and filing of the motion for sanctions and supporting brief no later than 30 days following the date of this order.

      . Italic type for emphasis only.

      . The appellee also filed a fourth motion for sanctions asking this court to preclude the appellants from offering any expert testimony claiming that the appellants failed to produce any expert reports by January 6, 1997, as agreed to in the stipulation. However, because of our disposition of the motion for summary judgment, which was favorable to the appellee, we denied this motion as being moot.


source: Caselaw Access Project

author: FRIEDMAN, J.,

license: Public Domain

text:
    Parell v. USX Corp.

      C.P. of Allegheny County,
    no. GD-96-5481.

      David Ainsman, for plaintiff.

      Ronald J. Fischer, for defendant USX Corp.

      Debra Todd, for defendant Terry Parsons.
    July 8, 1997
   FRIEDMAN, J.,

— Plaintiff appeals from an order dismissing her complaint, with prejudice.

Plaintiff had filed a complaint to which both defendants filed preliminary objections. After oral argument, the court sustained the objection that was based on the bar of the Workers’ Compensation Act and entered the order appealed from. The other objections were moot. In item 2.b of her statement of matters complained of on appeal, plaintiff raises the issue of the sufficiency of the complaint as to her fraudulent misrepresentation claim. The transcript shows that the parties at oral argument focused on whether or not the facts pled or pleadable made out an exception to the general rule that the Act provides the exclusive remedy for employees such as plaintiff’s decedent against their employers and co-employees. This is the issue raised in item 2.a of plaintiff’s statement and is the only issue this opinion will address. The transcript of the argument shows that the court accepted as true all the facts pled and that no additional facts that would invoke the exception could be pled, thereby justifying the court’s refusal to grant leave to amend (a refusal which is not complained of but which the court mentions to indicate that leave to amend was considered and was not lightly denied).

The exception to the Act’s exclusivity provision would arise under the case of Martin v. Lancaster Battery Company Inc., 530 Pa. 11, 606 A.2d 444 (1992), in which the employer’s intentional concealment of the bad results of mandatory blood tests done to monitor employees, including Martin, for excessive levels of lead was held to make out an exception to the exclusive remedy provision of the Act. Because of the intentional deception of the employee himself (rather than of a third party, such as a government safety inspector), resulting in severe and foreseeable health consequences, the plaintiff in Martin was permitted to pursue his fraudulent misrepresentation claim against his employer. The Pennsylvania Supreme Court explained its ruling as follows:

“The employee herein has alleged fraudulent misrepresentation on the part of his employer as causing the delay which aggravated a work-related injury. He is not seeking compensation for the work-related injury itself in this action. Clearly, when the legislature enacted the Workers’ Compensation Act in this Commonwealth, it could not have intended to insulate employers from liability for the type of flagrant misconduct at issue herein by limiting liability to the coverage provided by the Workers’ Compensation Act. There is a difference between employers who tolerate workplace conditions that will result in a certain number of injuries or illnesses and those who actively mislead employees already suffering as the victims of workplace hazards, thereby precluding such employees from limiting their contact with the hazard and from receiving prompt medical attention and care.

“The aggravation of the injury arises from and is related to the fraudulent misrepresentation of the employer. Thus, the appellees are not limited to their remedies under the Workers’ Compensation Act and are not precluded from bringing a common-law action against [the employer].” Id. at 17-18, 606 A.2d at 447-48. (emphasis added)

In the instant case it is pled and accepted as true for purposes of defendants’ preliminary objections that defendant USX knew that an employee it had assigned to work with plaintiff’s decedent had failed a drug test three years earlier and had concealed this information from the plaintiff’s decedent who was then fatally injured as a result of that co-employee’s negligence. The complaint also alleges that the co-employee was on drugs at the time of the accident, with the implication being that the employer knew or should have known of such drug use. However, this is not sufficient, under Martin, to remove the bar against suit. The only “hazard” pled or pleadable is an impaired co-employee’s presence on the job. This is still a far cry from the Martin hazard of deliberate concealment of the injured employee’s own condition. Furthermore, unlike Martin, plaintiff herein is “seeking compensation for the work-related injury itself,” not for an avoidable aggravation of a work-related injury, a distinction the Supreme Court expressly held to be significant. Injuries from negligent co-workers are among those covered by the Act. The mere fact that the negligence may have arisen from drug abuse, however tragic the consequence, is not legally significant. The Martin exception is very narrow and the facts of this case do not fit it.

Defendant USX, the employer in this case, is at worst one which “tolerate[s] workplace conditions that will result in a certain number of injuries,” not one “who actively misleadfs] employees already suffering.”

The Act similarly protects co-employees such as defendant Parsons from suit unless intentional injuries are inflicted. Negligence arising from drug or alcohol abuse does not rise to the level of intentional infliction of injuries.

Plaintiff’s only recourse is the workers’ compensation claim. The complaint was properly dismissed with prejudice.


author: HAZEL, J.,

text:
    Williams v. Roberts

      C.P. of Delaware County,
    no. 93-6919.

      Bruce L. Neff, for plaintiffs.

      Andrew J. Forbes, for defendants.
    July 14, 1997
   HAZEL, J.,

— Plaintiffs filed suit in the above-captioned matter as a result of a car accident between defendants and plaintiffs that occurred on June 16,1991. (N.T. 1/5/95 p. 32.) Plaintiff Harriet Williams’ husband was driving a vehicle in which plaintiffs Harriet and Tanasia Williams were passengers. There was a dispute as to whether plaintiff, a passenger in the uninsured car titled to her husband, was considered an owner for purposes of recovering full tort damages pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law.

The jury found that Ms. Williams was an owner (therefore being subject to limited tort) and had suffered no serious bodily impairment. (N.T. 1/5/95 pp. 140-42, 240.) Post-trial motions were filed addressing the issue of ownership and were subsequently denied by this court. Plaintiff appealed, thus necessitating this opinion.

On appeal, plaintiff makes the following allegations of error:

(1) The trial court erred in misallocating the applicable burden of proof in charging the jury on the issue of vehicle ownership.

(2) The verdict was against the weight of the evidence in that the jury made an erroneous determination that plaintiff Harriet Williams was the owner of vehicle.

PLAINTIFFS’ STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

With respect to the first claim of error, plaintiff is essentially claiming that defendant should have had the burden of proving that plaintiff was an “owner” and that the court should have instructed the jury accordingly.

However, the law is clear in Pennsylvania that plaintiff waived this issue by failing to object to the charge, as given, at trial. The charge given by this court before trial commenced regarding the burden of proof was as follows:

“In a civil case such as this, the plaintiffs have the burden of proving those claims or contentions which entitle them to relief. In some instances the defendant may also have a burden of proof. Whether or not the defendant has a burden of proof will depend upon the facts and circumstances of each case. If the defendant bears a burden of proof in the case, I’ll tell you that at an appropriate time. . . .” (N.T. 1/4/95 pp. 99-101.)

In addition, the court gave the following charge prior to deliberation with respect to determining ownership of the car:

“I mentioned to you just before the attorneys made their closing statements on this issue to you, that in accordance with the law applicable in Pennsylvania, in this case, before any other issues are addressed, you have to decide whether the plaintiff, Harriet Williams, was an owner of the vehicle involved in the accident of June 16, 1991. For purposes of the law applicable in this case, one can be considered to be an owner of a motor vehicle even though the vehicle is titled in someone else’s name. Although who is the titled owner is, indeed, a factor that you may consider in determining whether one is an owner of a motor vehicle. In accordance with the law that’s applicable in this case, one can be an owner of a motor vehicle if they have what the law calls a cognizable, a fancy word for recognized, property right. And — okay? And what they call de facto indicia — indicia means indication — of ownership, all right? Now, an actual, cognizable property right, okay? A property right is there — can be a property interest that one spouse has in the property of another, under matrimonial property law. Indeed, in this case, since the vehicle was purchased after marriage, there is, indeed, an actual, cognizable property right on the part of the plaintiff, Harriet Williams, in the vehicle involved in the accident June 16, 1991. However, that does not answer the question. That’s just one thing that you consider. Remember, it was a de facto indicia of ownership? So you’re going to have to decide and find by a fair preponderance of the credible evidence, as I’ve defined that for you, whether or not there was de facto indicia, or indications of ownership on the part of the plaintiff, Harriet Williams.

“Now, among the factors that you may consider in making this determination are these. And, again, these are sort of common sense. In whose name was the vehicle titled? Did Harriet Williams operate the vehicle? And if so, how frequently did she operate that vehicle? Did Harriet Williams have a driver’s license or license permit? Did Harriet Williams reside with the titled owner of the vehicle, and what was the relationship between Harriet Williams and the titled owner of the vehicle? Was the vehicle used for the sole and/or joint benefit of Harriet Williams? And if so, with what frequency, and under what circumstances? Did Harriet Williams have her own set of keys to the vehicle? Did anyone other than the titled owner of this vehicle operate that particular vehicle for the sole or joint benefit of Harriet Williams? Who purchased the vehicle, and whose funds were used to purchase the vehicle? What were the circumstances or reason the vehicle was being used on June 16, 1991? Was anyone else in Harriet Williams’ household the titled owner of any other vehicle at the time of the accident? Did Harriet Williams provide for the maintenance and/or care of the vehicle, as well, ladies and gentlemen, as any other evidence which you believe to be relevant on this particular issue?” (N.T. 1/5/95 pp. 129-31.)

After the jury retired to deliberate, the court conducted the following discussion on the record:

“THE COURT: Gentlemen, do you have any objections, amendments, deletions or exceptions to the charge as given by the court? Mr. Neff?

“MR. NEFF: The only issue I would take with the court’s charge is that it appears to me that there could be confusion between the difference between being an owner and having the marital interest in the property. And I’m not entirely sure that the charge made that perfectly clear.

“THE COURT: Mr. Forbes?

“MR. FORBES: I have none, thank you.

“THE COURT: I understand your position. I do think the charge is clear. I think that I indicated that you needed both in this matter, that one simply wasn’t enough. And I think no matter how many times I say it, I’d have to say both. And I did use the word intentionally an owner as opposed to the owner. So your request, and I assume that’s what it is to be, is respectfully denied. . . . [Off the record]” (N.T. 1/5/95 pp. 136-37.)

As demonstrated by the record, plaintiff did not object to the charge as given. If plaintiff had properly objected to the charge and its burden of proof, the court would have been able to correct the charge, if needed. Takes v. Metropolitan Edison Company, 548 Pa. 92, 695 A.2d 397 (1997). Because plaintiff failed to object, the alleged error could not be corrected.

It is of interest to this court that before the court charged the jury, the plaintiff made the following statement during his closing argument: “You’ll remember when we first started this case that Judge Hazel explained to you the concept of the burden of proof. And he described the burden of proof as a scale. If it tips ever so slightly, one way or the other, that that’s how you decide. So at this point I’m going to ask you to keep in mind that scale, because you’re going to put on the two sides of that scale is Harriet Williams the owner or an owner of the car, or is she not? And if the scale tips that she is the owner or an owner, then your decision is that she was an owner. And you come back and tell us that she was an owner. If, on the other hand, the scale tips the other way and there’s insufficient indication, or more indication than not that she wasn’t an owner or the owner, you’re going to decide that. (N.T. 1/5/95 pp. 116-17.) Given this argument to the jury, the lack of a specific jury charge requested by plaintiff and no objection to the charge given by the court, it is evident that plaintiff never thought that the defendant should have the burden of proof with respect to ownership until after the verdict was rendered by the jury and before she filed post-trial motions.

Regardless of the record, at oral argument, plaintiff’s counsel stated that, when asked by the court if there was an objection or a requested point for charge with respect to the burden of proof, “I believe the only thing in the record that I saw was I specifically asked your honor for a directed verdict on the issue, because it was my position that the defense had produced no evidence on the issue, at all. It would be my position that whether or not an objection was raised to the manner in which the burden of proof presented to the jury is a non-waivable issue. I don’t believe you can waive who has the burden of proof.” (N.T. 6/13/95 pp. 6-7.)

However, despite plaintiff’s statement that the burden of proof is not a waivable issue, she presented no law to that effect in her post-trial motion and moreover, plaintiff is not focusing on the correct issue, which is whether failing to object to the jury charge renders any alleged error waived, not whether the burden of proof is a waivable issue. Regardless of which issue plaintiff wishes to raise, any alleged error with respect to the jury charge has been waived.

In the case of Brown v. Philadelphia Tribune Co., 447 Pa. Super. 52, 668 A.2d 159 (1995), alloc. denied, 544 Pa. 621, 675 A.2d 1241 (1996), U.S. cert. denied, 117 S.Ct. 173 (1995), the appellants alleged, in part, that the trial judge gave improper instructions to the jury as to the plaintiff’s burden of proof as to each statement in an article alleged to be defamatory.

“The first four of appellants’ arguments center around the trial court’s failure to properly instruct the jury in its jury charge.

“It is clear under Pennsylvania law that issues not raised below are waived on appeal. Pa.R.A.P. 302(a). This is true even if the issues raised on appeal are of constitutional dimension. . . . Moreover if a party seeks to object to a jury charge, ‘specific exception shall be taken to the language or omission complained of.’ Pa.R.A.P. 302(b).” Brown, supra at 57, 668 A.2d at 161-62. (citation omitted)

As Brown makes abundantly clear, an improper instruction to the jury is waived if not specifically objected to, even if the issue is the burden of proof. See also, Pa.R.C.P. 227(b): “Unless specially allowed by the court, all exceptions to the charge to the jury shall be taken before the jury retires. On request of any party all such exceptions and arguments thereon shall be made out of hearing of the jury.”

“In addition to a timely specific objection to a trial court’s charge to the jury, appellate review may be preserved by submitting ‘a specific point for charge.’” Shaffer v. Pullman Trailmobile, 368 Pa. Super. 199, 203, 533 A.2d 1023, 1025 (1987). Ms. Williams requested the Standard Civil Jury Instruction regarding the burden of proof, 5.50 (Civ.), not a specific charge regarding the burden of proof as to ownership. Therefore, the objection has not been preserved through this alternate method.

Moreover, despite the fact that she requested a directed verdict, plaintiff cannot claim that this request was an objection to the jury charge. The directed verdict was simply a request for the court to determine as a matter of law that Ms. Williams was not considered an owner of the vehicle. A review of the transcript further reveals that the issue of the burden of proof was not directly raised in the request for a directed verdict:

“[side-bar]

“MR. NEFF: Your honor, I had, in the back, when we were back there, expressed an opinion before you had sent this issue to the jury, that it was my belief, based on the current case law, that there was insufficient evidence to even send this issue to the jury. And as a result, that you should decide, or should have decided, as a matter of law, that there was insufficient indicia in this particular case of ownership interest on the part of Harriet Williams, in order to even submit that case, based on the current case law. And I wanted to at least raise that issue as far as the record was concerned.

“FOREPERSON [sic] [MR. FORBES]: Yes, your honor, I expressed my opinion that it’s a matter of credibility for the jury, that it properly was submitted.

“THE COURT: I think this has become a question of fact for the fact-finder in this case. There’s some evidence, depending on how the jury views it, that the witness may have admitted to driving a motor vehicle, this particular motor vehicle, shortly before this incident occurred. There was testimony during the course of the trial with respect to the plaintiff’s failure to state to counsel during examination at deposition that she had injured certain parts of her anatomy beforehand, before this accident. She gives an explanation with respect to it, but certainly the jury is free to conclude that if someone is — has testified falsely with respect to one issue, they may consider that — they may, they don’t have to consider it as relevant on all of the other statements that the plaintiff may have made. I think it does become a question of fact. And I think it’s properly left for the jury. Thank you, sir. [End of sidebar]” (N.T. 1/5/95 pp. 138-40.)

This side-bar occurred after the jury was charged and also after the objections to the charge were made. The fact that she requested a directed verdict does not imply that she also objected to the issue of the burden of proof.

Despite this waiver, this issue is crucial to answering the other allegations of error so this court will address the substantive issue regarding the burden of proof. The only aspect of this issue that is clear, however, is that no Pennsylvania appellate court has specifically addressed the issue as to who has the burden of proof.

The applicable statute concerning ownership of a motor vehicle reads as follows:

“An individual who is not an owner of a currently registered private passenger motor vehicle and who is not a named insured or insured under any private passenger motor vehicle policy shall not be precluded from maintaining an action for noneconomic loss or economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law.” 75 Pa.C.S. §1705(b)(3).

A review of the cases that indirectly address this and similar issues under other provisions of the PaMVFRL has placed the burden on both the plaintiff and defendant. Obviously it is plaintiff’s position that defendant must prove ownership, based in part upon the theory that it is difficult to prove a negative, while defendant claims that plaintiff must prove the necessary elements to recover, and not being an owner is one of them.

Bethea v. Pennsylvania Financial Responsibility Assigned Claims Plan, 407 Pa. Super. 57, 595 A.2d 122 (1991), the case to which" both parties refer extensively, has language that appears to place the burden of proof on the defendant. In Bethea, the plaintiff was attempting to collect first party benefits under the assigned claims plan. The car the plaintiff was driving was uninsured, as was the other car involved in the accident and the defendant claimed that the plaintiff was ineligible under the provisions of 75 Pa.C.S. § 1752(a)(3).

The question was whether the plaintiff was an owner of the vehicle because the car was registered in her husband’s name only and they were living in the same house, not estranged. The applicable wording of Bethea states: “However, even if appellant is found to have a property interest in the vehicle under marital property law, appellee would still be obligated to show that there exists indicia of ownership which would, consistent with the purpose of the Act, support imputing the obligation to provide financial responsibility to appellant. ” Id. at 65, 595 A.2d at 126-27. (emphasis added)

In contrast to Bethea is the case of Winkelman v. Pennsylvania Financial Responsibility Assigned Claims Plan, 418 Pa. Super. 439, 614 A.2d 717 (1992), overruled on other grounds in Swartz v. Union Mutual Insurance Co., 547 Pa. 632, 692 A.2d 1058 (1997), wherein the court stated that under 75 Pa.C.S. § 1752(a)(3), the same section referred to in Bethea, “appellant would be eligible for benefits if he could demonstrate he was not the owner of a motor vehicle that was required to be registered. ” Winkelman, supra at 445, 614 A.2d at 720. (emphasis added) See also, Hodges v. Rodriguez, 435 Pa. Super. 360, 645 A.2d 1340 (1994): “Mr. Hodges would be eligible for benefits if he could demonstrate that he did not own a motor vehicle that was required to be registered.” Id. at 367, 645 A.2d at 1343, citing Winkelman.

In Mangum v. Pennsylvania Financial Responsibility Assigned Claims Plan, 449 Pa. Super. 1, 672 A.2d 1324 (1996), the court stated:

“As appellant was seeking to recover benefits from the assigned claims plan, he bore the burden of producing a sufficient quantum of evidence demonstrating that there were no policies of insurance from which he could recover first party benefits.” Id. at 7, 672 A.2d at 1327-28.

Finally, in the absence of a case that mandates the shifting of the initial burden of proof, the burden should remain with the plaintiff. The cases are not definitive but the one argument made by plaintiff, that she should not have to prove a negative, was impliedly rejected by the court in Winkelman. Furthermore, a review of the factors that are to be considered in Bethea and the other cases (as discussed later in this opinion) indicate that the information that must be considered would most likely be obtained from the plaintiff so that the burden falls more easily on her.

Plaintiff’s next allegation of error is that the jury’s determination was against the weight of the evidence and adds that because there was no affirmative evidence proffered by defendant to prove ownership, this court erroneously denied plaintiffs’ motion for a directed verdict. Plaintiff further argues that the credibility determinations are legally insufficient to constitute proof of plaintiff’s ownership of a motor vehicle and even if the jury rejected the plaintiff’s testimony there was no affirmative evidence produced by defendants to establish plaintiff’s ownership of a motor vehicle.

It appears that plaintiff requested judgment as a matter of law before the jury was charged (off the record) and placed his request on the record after the jury reached a verdict but before the verdict was read. (N.T. 1/5/95 pp. 138-40.) While the discussion with respect to this request indicates that the plaintiff had asked for judgment as a matter of law at the close of the defendant’s case, plaintiff has alternately called her request a motion for directed verdict and a request for judgment as a matter of law.

Quite simply, plaintiff asked the court to determine, after the close of evidence and as a matter of law, that the plaintiff was not an owner. However, as discussed below, there were credibility determinations to be made by the jury. “It is not within the province of the trial court to weigh conflicting evidence when ruling upon a motion for directed verdict as credibility is a jury question.” Delaware Valley Factors Inc. v. Ronca, 442 Pa. Super. 609, 612, 660 A.2d 623, 624 (1995). (citations omitted) In fact, a review of the Standard Civil Jury Instruction, which was requested by the plaintiff, stands in contrast to plaintiff’s position:

“The evidence that the plaintiff made an earlier statement inconsistent with his testimony at this trial may be considered by you not only in your evaluation of that party’s credibility but also as evidence of the truth of the contents of the statement bearing upon the facts in issue.” Pa.S.S.C.J.I. 2.21. A directed verdict was properly denied.

Moreover, defendant has no duty to produce affirmative evidence because the burden of proof rested with the plaintiff and a reading of Alberts v. Pennsylvania Financial Responsibility Assigned Claims Plan, 16 D.&C.4th 243 (1992) lends support to this determination.

In Alberts, a non-jury trial was held before the court based upon the pertinent facts testified to by the plaintiff at her deposition which were stipulated to by both parties.

The plaintiff was operating an uninsured car titled in her husband’s name and was in an accident. She was denied uninsured motorists benefits and suit was filed.

The court had to resolve the issue of the ownership of the vehicle.

“Alberts’ husband purchased the car after the couple was married. Alberts and her husband lived together and Alberts had her own keys to the car as well as unrestricted access to and use of the car. Although Alberts knew the car was uninsured, she used it on a daily basis for personal and familial errands. On days where Alberts’ husband worked, he was either picked up by a co-worker or driven to work by Alberts, leaving the car for Alberts’ unrestricted use.” Alberts, supra at 244-45.

The court found that the plaintiff was the constructive owner of the car and was ineligible to receive uninsured benefits.

Of importance in the Alberts case is the fact that although the burden of proof is not specifically mentioned, this non-jury trial was based upon stipulated facts from the deposition testimony of the plaintiff and the plaintiff was found to be an owner. In the present case, the only individuals who testified with respect to ownership were Ms. Williams and her daughter. Therefore, it appears that ownership can be determined solely by the plaintiffs’ testimony.

Lastly, plaintiff claims that there was insufficient evidence for jury to conclude plaintiff was an owner. Plaintiff claims that the verdict was against the weight of the evidence and amounts to injustice that “stands forth like a beacon,” citing to Bortner v. Gladfelter, 302 Pa. Super. 492, 496, 448 A.2d 1386, 1388 (1982), because even if the jury disbelieved plaintiff there was again no affirmative evidence produced by defendant to establish ownership.

Section 102 of the Pennsylvania Vehicle Code defines “owner” as “[a] person, other than a lien holder, having the property right in or title to a vehicle. The term includes a person entitled to the use and possession of a vehicle subject to a security interest in another person, but excludes a lessee under a lease not intended as security.” 75 Pa.C.S. §102.

“We have previously recognized that under this definition there may be both a legal and an equitable owner of a motor vehicle. ... It follows that section 102 of the [Vehicle] Code does not provide nor intend to provide that title to a motor vehicle shall determine absolute ownership of such. In fact, our research reveals that in Pennsylvania, the certificate of title constitutes no more than some evidence of ownership.” Habbyshaw v. PennDOT, 683 A.2d 1281, 1282-83 (Pa. Commw. 1996).

The definition of ownership is not limited to “record ownership, or to a technical Divorce Code analysis of marital property rights, but would permit consideration of other ‘indicia of ownership.’ Such ‘indicia of ownership’ require that there be an actual cognizable property right in the vehicle, under marital property law, and de facto indicia of ownership.” Id. at 1283. Factors to consider to determine “de facto indicia of ownership” are: whether the husband and wife resided together at the time of the accident; whether the titled owner spouse allowed the other spouse to drive the vehicle which the other spouse knew to be uninsured; and whether the spouse driving the vehicle was on a personal errand. Id. at 1284. See also, this court’s jury charge. (N.T. 1/5/95 pp. 129-31.)

Therefore, given that the car was bought during the marriage, the car is marital property and Ms. Williams had a property right to it, (N.T. 1/5/95 p. 103), this court must review the evidence to determine if the jury could have found that there was sufficient “indicia of ownership” to conclude that Ms. Williams was considered an owner. Habbyshaw, supra at 1283.

Plaintiff, and to a very limited extent, her daughter, provided the only evidence with respect to ownership. Assuming defendant did not have the burden of proof, it is clear that the jury disbelieved plaintiff’s testimony and therefore concluded plaintiff did not meet her burden of proof of establishing that she did not own the car. Again, if defendant does not have the burden of proof, there is no duty to produce evidence to disprove plaintiff’s claim.

The facts regarding ownership and the facts bearing on the plaintiff’s credibility were as follows:

Plaintiff’s husband owned the car involved in the accident, which was uninsured, and plaintiff’s name was not on the title; she was not, in fact, the named owner on any car. (N.T. 1/5/95 p. 34.) Plaintiff did not know when her husband acquired the car, nor did she know where or from whom the car was purchased. (N.T. 1/5/95 pp. 34, 58.) There was no discussion with her husband about the car, she did not look at the vehicle before it was purchased and did not ask her husband about it; he simply bought the car. (N.T. 1/5/95 pp. 58-59.)

Ms. Williams also testified that she rarely communicates with her husband about purchases of cars, televisions and other such items, rather, her husband purchases almost everything without consulting her. (N.T. 1/5/95 p. 59.) Most of the major purchases, the televisions and furniture, were a surprise, so plaintiff’s husband bought them himself. (N.T. 1/5/95 p. 59.) The car was also a surprise and Ms. Williams testified that when she gets surprises, she does not ask how they can afford it. (N.T. 1/5/95 pp. 59-60, 64.) When she spends money from her account, she does not discuss it with her husband and when husband spends money, he does not discuss it with her. (N.T. 1/5/95 p. 99.)

Specifically, Ms. Williams did not ask her husband how much he paid for the car, nor question her husband as to whether or not the car was inspected, how many miles were on the car when her husband bought it, nor whether the brakes and lights worked properly. (N.T. 1/5/95 pp. 60-63.)

In addition, Ms. Williams testified that she never drove the car and did not have the keys to the car. The keys to the car are not kept in a specific place in the house but “anywhere in the house.” (N.T. 1/5/95 pp. 34, 37.) She did not pay any money for the purchase of the car and was not involved in the registration, maintenance or repair of the car. (N.T. 1/5/95 pp. 34-35.) Furthermore, her husband shopped most of the time “to get the heavy things” and would use whatever car he had at the time. (N.T. 1/5/95 p. 36.) Plaintiff never drove any of the cars. (N.T. 1/5/95 p. 36.) She was not driving the car owned by her husband at the time of the accident and had never driven the car owned by her husband. However, the family would go places in the car together. (N.T. 1/5/95 p. 105.)

Ms. Williams had never held a driver’s license in any state as of the date of the accident nor prior thereto. (N.T. 1/5/95 p. 35.) She did, however, have a learner’s permit in 1986 and reapplied for it only after the accident. (N.T. 1/5/95 p. 36.) In 1986, she took driving lessons and learned how to drive but not in the family car. (N.T. 1/5/95 pp. 68-69, 71.) Plaintiff’s husband took her once to teach her how to drive but not in the car that was involved in the accident. (N.T. 1/5/95 p. 72.)

Plaintiff now owns a van but again did not participate in the purchase of it nor does she know how much her husband paid for it. (N.T. 1/5/95 p. 65.) Ms. Williams also claims that her name was placed on a title of a vehicle but she did not know this information at the time her husband arranged to have the vehicle titled in her name. According to Ms. Williams, her name was on the title because her husband had another car. (N.T. 1/5/95 p. 66.) Plaintiff asked her husband why her name was on the car because she did not own any vehicles and did not drive. (N.T. 1/5/95 p. 98.) Ms. Williams requested that her husband remove her name from the title because when she does get her license, she does not want “anything against [it].” (N.T. 1/5/95 p. 98.)

In terms of sufficiency of the evidence, in order for the jury in the present case to have determined that the plaintiff was an owner, they must have disbelieved the plaintiff. The jury is free to disbelieve plaintiff’s testimony as the fact-finder is entitled to believe all, part, or none of the evidence. Commonwealth v. Zelosko, 454 Pa. Super. 635, 640, 686 A.2d 825, 827 (1996).

Moreover, a review of the additional testimony elicited from Ms. Williams indicates that the following facts would serve to discredit her testimony regarding ownership of the vehicle in question.

Ms. Williams is the principal wage earner in the family and files tax returns. Her husband, however, does not file tax returns, although he tries to work regularly. (N.T. 1/5/95 pp. 62, 105.) Despite this testimony, plaintiff did concede that her husband was not “regularly employed” although she, in contrast, has worked consistently from the time she was a teenager. (N.T. 1/5/95 pp. 32-33.) The longest time of unemployment during her employment career (ages 16 to 55) was one year or so. (N.T. 1/5/95 p. 32.)

She did not maintain joint bank accounts with her husband but instead plaintiff had her own bank account. (N.T. 1/5/95 pp. 98-99.) Her husband did not have a bank account. (N.T. 1/5/95 p. 99.)

A doctor’s note from Ms. Williams’ doctor on March 4, 1991 uses the word “driving” in reference to Ms. Williams (N.T. 1/5/95 p. 79.) Ms. Williams testified that it was just a habit for her (Ms. Williams) to say driving instead of saying she was a passenger and reiterated that she did not drive. (N.T. 1/5/95 p. 79.) The note also indicated that the motion of plaintiff’s neck, turning her head, makes her neck hurt. (N.T. 1/5/95 p. 80.) Ms. Williams did concede that perhaps a driver would have more occasion to turn his or her neck and look back and forth than a passenger would. (N.T. 1/5/95 p. 80.)

At her deposition, plaintiff was asked about prior back injuries and plaintiff stated she had none. (N.T. 1/5/95 p. 84.) However, plaintiff testified at trial that although she did not forget that she had back problems before the accident, at the deposition her mind was primarily on the car accident and she “wasn’t contributing to anything that happened on the job or anything like that” so she misunderstood. (N.T. 1/5/95 p. 84.) Plaintiff further testified that she did not know if she told her doctors about any prior back or neck problems, although they could have asked her about them. (N.T. 1/5/95 p. 85.) Doctor Gandy testified from various notes regarding Ms. Williams’ prior injuries, including neck and shoulder achiness, tingling in hands and acute back strain. (N.T. 1/4/95 pp. 184-88.)

Moreover, plaintiff testified at her deposition that since the accident she did not have any other accidents involving her back, hands or wrists. (N.T. 1/5/95 p. 86.) Despite the fact that her own doctor testified at trial that she reported to him that she was accidentally hit in the back in November of 1991 which made things worse, plaintiff has no recollection of such an incident. (N.T. 1/4/95 pp. 198-99; 1/5/95 pp. 86-87, 88.) Plaintiff did acknowledge that it was possible that the incident happened but that she had forgotten about it. (N.T. 1/5/95 p. 87.)

Clearly, there was ample evidence for this jury to disbelieve Ms. Williams. It does not shock the conscience of this court that the jury did not believe that Mr. Williams purchased the more expensive household items, including cars, television sets and furniture, without consulting Ms. Williams, without having a bank account and without being gainfully employed. Furthermore, given her inconsistencies between her trial testimony and deposition testimony and a doctor’s notation which indicates that Ms. Williams did drive, there was sufficient evidence to support a finding that Ms. Williams could be considered an owner of the car.

Finally, a review of the recent Commonwealth Court case of Hames v. Philadelphia Housing Authority, 696 A.2d 880 (Pa. Commw. 1997), indicates that the issue of ownership would not have been relevant to this case because plaintiff would have been deemed to have selected the limited tort option.

In Homes, plaintiff-daughters were riding in a car driven by their father and owned by their mother. The car was uninsured. Plaintiffs argued that they were not subject to limited tort damages pursuant to 75 Pa.C.S. §§ 1705(a)(5) and 1705(b)(3), due to the fact that they were neither owners of their mother’s vehicle nor named insureds under any applicable automobile insurance policy. The court held that because the mother was uninsured, she was deemed by operation of law to have selected the limited tort option, and because section 1705(b)(2) of the PaMVFRL provides that the tort option selected by the named insured shall apply to all insured under the policy, the children were bound by the limited tort option.

Section 1705(b)(2) states that “[t]he tort option selected by a named insured shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle policy.” Id. at 883 n.6. Given this determination, it would appear that the court reviewed the definition of “insured” under the PaMVFRL: “any individual residing in the household of the named insured who is: (1) a spouse of other relative of the named insured; or (2) a minor in the custody of either the named insured or relative of the named insured.” 75 Pa.C.S. § 1705(f). Because the children were presumably minors in the custody of their mother, they were “insureds” and are deemed to have accepted the limited tort option which was selected, by operation of law, by their mother, pursuant to section 1705(b)(2).

The reasoning for this determination was as follows:

“To decide otherwise and to accept appellants’ argument would afford greater rights to minor children whose parents have no insurance than to minor children whose parents have purchased insurance and chosen the limited tort option. It is a well-settled principle of statutory construction that the legislature does not intend a result that is absurd or unreasonable. . . . As indicated by section 1705(b)(2) of the MVFRL, the legislature intended that minor children residing in their parents’ household be subject to the same tort option as their parents.” Id. at 883.

Utilizing this analysis in the present case, plaintiff is also deemed to have selected the limited tort option. Her husband was a titled owner of a vehicle but had no insurance. Therefore, pursuant to 75 Pa.C.S. § 1705(a)(5), Mr. Williams is deemed to have chosen the limited tort alternative. As a result, pursuant to 75 Pa.C.S. section 1705(f), Ms. Williams is an insured and “[t]he tort option selected by a named insured shall apply to all insureds under the private passenger motor vehicle policy who are not named insureds under another private passenger motor vehicle policy.” 75 Pa.C.S § 1705(b)(2). The jury then found that plaintiff suffered no serious bodily injury. (N.T. 1/5/95 p. 240.) Therefore, there was no error in the jury’s verdict. In addition, the reasoning of Hames is applicable to the present case.

For all of the foregoing reasons, the issue regarding the burden of proof has been waived, the court did not err in denying the motion for directed verdict and the verdict was not against the weight of the evidence.

      . Although Tanasia Williams was a plaintiff in this action, her claim is not the subject of this appeal.

      . Although the case of Reilly by Reilly v. SEPTA, 507 Pa. 204, 224, 489 A.2d 1291, 1301 (1985) created a narrow exception to this requirement and states that “[t]he failure to preserve an issue on appeal will be excused only when a strong public interest outweighs the need to protect the judicial system from improperly preserved issues,” the Pennsylvania Supreme Court clarified this exception: “aside from capital cases in the domain of criminal law — where a human life is at stake, no fact situations have been presented to us, and none readily comes to mind, where this narrow public interest exception would justify departure from the waiver rule. ” McMillen v. 84 Lumber Inc., 538 Pa. 567, 571-72, 649 A.2d 932, 934 (1994).

      . At oral argument, all counsel conceded that there is no case law with respect to the burden of proof of the particular statute at issue. (N.T. 6/13/95 pp. 11-12.)

      . 75 Pa.C.S. §1752 (a)(3) states “a person is eligible to recover benefits from the assigned claims plan if the person meets the following requirement: ... (3) Is not an owner of a motor vehicle required to be registered under chapter 13 (relating to registration of vehicles) . . . .” Although the wording is more precise in this provision, i.e. “meets the following requirement,” than in 1705(b)(3), in the absence of case law specific to the provision at issue in the present case, this court looks to case law regarding this provision, and others, for guidance.

      . Winkelman held that all vehicles must be registered regardless of an owner’s intended usage unless they fall within one of the authorized exemptions. Swartz overruled Winkelman to the extent that a vehicle need not be registered, much less qualify for an exclusion, if the vehicle does not operate on a highway. However, the wording of Winkelman is still beneficial to this court’s analysis.

      . The court in Hodges also stated “[bjecause the assigned claims plan had sufficient evidence to suggest that Mr. Hodges was the owner of a motor vehicle required to be registered under chapter 13 at the time of his accident and was, therefore, ineligible to receive benefits under section 1752, his claim for benefits was denied. Mr. Hodges, at that point, assumed the burden of going forward and proving that he was indeed an eligible claimant.” Id. at 375, 645 A.2d at 1348. However, this discussion occurred in the context of the assigned claims plan’s initial determination of coverage.


author: EBY, P.J.,

text:
    Hicks v. Amerman

      C.P. of Lebanon County,
    no. 95-00149.

      Loreen M. Burkett, for plaintiff.

      Michael D. Reed, for defendants.
    July 10, 1997
   EBY, P.J.,

— The question raised in the instant case is under what circumstances the jurisdictional provisions of the federal Employee Retirement Income Security Act prohibit this court from entertaining a claim.

Michelle Hickman, an employee of Amerman & Co., an accounting firm, relied on an outdated employee medical benefits handbook when deciding to undergo elective surgery to treat a chronic gall bladder problem. Prior to the procedure, she examined the booklet, called the health care insurance company that provided coverage, had the surgery “pre-certified,” underwent the surgery, and submitted her claim to her employer’s health care insurer. She then learned her employer’s health plan did not cover the procedure. Consequently, she sued her employer for the cost of the surgery and follow-up care, asserting that by directing her to an outdated benefits handbook when she asked about benefits, her employer became liable for the medical expenses she had incurred in reliance on the handbook.

Her employer, correctly asserting that ERISA governs creation and administration of employee health plans, argues that ERISA provides that any claims arising out of such a plan must be litigated in federal court, and has asked for leave to file a motion for summary judgment. At a pretrial conference, we directed the parties to address the issue, by brief and oral argument, of whether ERISA governs defendant’s health plan and so restricts plaintiff to sue in federal court.

Section 1451(c) of ERISA, 29 U.S.C. § 1451(c), bestows upon federal district courts exclusive jurisdiction over ERISA claims. We note, however, that ERISA applies to all employers “engaged in commerce or in any industry or activity affecting commerce.” 29 U.S.C. § 1003(a)(1) (West 1985). “Commerce” is “trade, traffic, commerce, transportation, or communication between any state and any place outside thereof.” 29 U.S.C. §1002(11) (West 1996 Supp.). “Industry or activity affecting commerce” is “any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce, and includes any activity or industry ‘affecting commerce’ within the meaning of the Labor Management Relations Act, 1947 [29 U.S.C. §141 et seq.], or the Railway Labor Act [45 U.S.C. §151 et seq.].” 29 U.S.C. §1002(12) (West 1996 Supp.).

Although there is no evidence of record on this issue, Amerman & Co. appears to be an accounting firm with but one office, in Palmyra, Pa. We did not have enough facts at the time of the pretrial conference to determine whether the firm actually engages in “interstate commerce” and thus whether the claim may fall under ERISA. Unfortunately, neither party has given us further guidance on the issue of whether Amerman & Co. engages in “interstate commerce.”

Defendant repeats its prior argument that ERISA applies because an employee health plan is at issue, apparently taking that position that all employer-sponsored health plans fall under the Act, no matter the size of the employer, the nature of its business, or the nature of the claim. Plaintiff takes a slightly different position: she argues that defendants are not “employers” under ERISA because ERISA defines “employer” as “any person acting directly as an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan.” Plaintiff argues that the Pa. Builders’ Association Benefits Trust, which administers the Amer-man health insurance plan, is the statutory “employer” that is immune from state court claims.

Plaintiff also argues that she is not asking us to interpret the obligations of the insurer or the plan administrator; she is asking us to determine whether her employer must pay a bill that she incurred because she relied on his statements. She asserts that her claim is a common-law claim which does not arise out of an ERISA-governed employee health plan.

There are no court cases on whether ERISA governs all pension and health benefit plans offered by all private employers in the United States, no matter what their size or the nature of their business. There are many cases in which ERISA’s preemption of state law claims have been discussed. In these cases, the defendant was patently an employer that engaged in interstate commerce, or a union subject to the Labor Management Relations Act. See e.g., Murzyn v. AMOCO, 925 F. Supp. 594 (N.D. Ind. 1995); Jung v. FMC Corp., 755 F.2d 708 (1985); Johnson v. Transworld Airlines Inc., 149 Cal.App.3d 518, 196 Cal.Rptr. 896 (1983). Still, there are cases in which an employer who did not appear to be involved in “interstate commerce” successfully asserted the ERISA preemption provisions.

In Holloway v. Doug Fisher Inc., 865 F. Supp. 412 (E.D. Mich. 1994), an employee sued his former employers, both personally and in their business personas, for their failure to pay his health insurance premiums when their acts led him to believe they had done so. After the employee was injured, he submitted insurance reimbursement forms, and was told by the insurer that he was not covered under his employer’s health plan. He sued his two former employers, his current employer, and the principals of each, asserting negligence, fraud, breach of contract, unjust enrichment, and other common-law claims. The employee had paid health insurance premiums through paycheck deductions while he was employed by both employers, but because of employer errors, the premiums were not transmitted to the health insurer and the employee was not listed by the employer as a “covered employee” with its insurer.

The federal district court determined that because plaintiff’s claims against his second employer, Catalyst Inc., involved that employer’s failure to follow federal laws regarding continuation of health insurance coverage, those claims were preempted by ERISA. Id. 865 F. Supp. at 418. But because his claims against his first and third employers were not based on benefit plans, there was no preemption. The plaintiff claimed that his first and third employers committed fraud by promising him health coverage, deducting premiums from his paychecks, and then failing to provide coverage. He also alleged that his first and third employers converted his money by failing to pay premiums, and intentionally inflicted emotional distress upon him.

The court in Holloway did not discuss whether the defendants engaged in interstate commerce. They appeared to ship books to schools within the state of Michigan. We turn to U.S. Supreme Court cases in an effort to find guidance.

In Ingersoll-Rand v. McClendon, 498 U.S. 133, 112 L.Ed.2d 474, 111 S.Ct. 478 (1990), the U.S. Supreme Court stated:

“Section 514(a) was intended to ensure that plans and plan sponsors would be subject to a uniform body of benefits law; the goal was to minimize the administrative and financial burden of complying with conflicting directives among states or between states and the federal government. Otherwise, the inefficiencies created could work to the detriment of plan beneficiaries. . . . Particularly disruptive is the potential for conflict in substantive law. It is foreseeable that state courts, exercising their common-law powers, might develop different substantive standards applicable to the same employer conduct, requiring the tailoring of plans and employer conduct to the peculiarities of the law of each jurisdiction. Such an outcome is fundamentally at odds with the goal of uniformity that Congress sought to implement.” Id., 498 U.S. at 142, 112 L.Ed.2d at 486, 111 S.Ct. at 509-510. (citations omitted)

It is clear that the Supreme Court takes the position that state courts should not be interpreting the ERISA statute, or ordering employers to right wrongs done to their employees pursuant to ERISA plans.

In Dukes v. U.S. Healthcare Inc., 57 F.3d 350 (3d Cir. 1995), the U.S. Court of Appeals for the Third Circuit was asked to determine whether medical malpractice claims raised by plaintiffs must be heard in federal court because of ERISA preemption. The court of appeals found that the claims had been improperly removed to federal court from state court, as they did not require interpretation of the ERISA statute:

“[Pjlaintiffs’ claims, even when construed as U.S. Healthcare suggests, merely attack the quality of the of the benefits they received: The plaintiffs here simply do not claim that the plan erroneously withheld benefits due. Nor do they ask the state courts to enforce their rights under the terms of their respective plans or to clarify their rights to future benefits. As a result, the plaintiffs’ claims fall outside the scope of section 502(a)(1)(B) and these cases must be remanded to the state courts from which they were removed.” Id. at 356. The section to which the court of appeals refers in Dukes has been codified at section 1132(a)(1)(B):

“(a) Persons empowered to bring a civil action

“A civil action may be brought—

“(1) by a participant or beneficiary— . . .

“(B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan; . . . .” 29 U.S.C. §1132 (West 1985 & 1997 Supp.). The reason underlying plaintiff’s suit in the instant case is that the medical treatment she obtained is NOT a benefit due under the plan. We accordingly find that the claim at issue is not preempted by ERISA law, and will deny defendant’s request for leave to file a motion for summary judgment on the issue.

This case is analogous to the following situation. Suppose an employee has the need to drive her own car on company business, but lacks auto insurance. She asks her employer if she is covered under the company policy while driving her car, and he assures her that she is covered. Relying on her employer’s assurance of coverage, the employee drives her car and negligently injures the property of another in an accident. She puts in a claim for indemnification, then learns that her employer’s insurance will not pay any damages for her negligence. The employee has incurred liability to a third party (the property owner), partly because she relied on her employer’s assurance of insurance coverage and partly because of her own act of negligent driving.

In another analogy, an employee wishes to bring a friend’s personal computer to the office, and asks her employer whether it will be covered by his office insurance in the event something happens to it. He assures her that the office insurance will cover the computer, and, relying upon his assurance, she brings it to the office, from which it is stolen. She puts in a claim and learns the office policy does not cover the computer. She is liable to the computer’s owner for its loss, partly because she relied on her employer’s assurance of coverage and partly because of her own act in bringing the computer to the office.

Here, plaintiff wished to obtain medical treatment for a troubling physical condition. She asked her employer for a description of his insurance coverage, and he directed her to a booklet. The booklet stated the employer’s insurer would pay for her medical treatment, and, relying on the booklet and her employer’s words, she obtained medical treatment. She put in a claim and learned the insurer would not pay for her treatment. She is now liable to her health care providers, partly because she relied on her employer’s words and booklet, and partly because of her own act in obtaining medical treatment.

Under the circumstances of this case, we determine that plaintiff’s claim is not preempted by ERISA, and so her case is properly before us. Upon the parties’ praecipe, the matter will be listed for a non-jury trial.

ORDER

And now, to wit, July 10, 1997, upon careful consideration of the parties’ pretrial memoranda, the arguments they have presented in their briefs, and analysis of the applicable statutes and cases, it is hereby ordered that defendants’ request for leave to file a motion for summary judgment is denied. The case shall be listed for a non-jury trial upon the praecipe of any of the parties.

      . The court went on to dismiss some of these common-law claims as not supported by the record. Id., 865 F. Supp. 421, 425.


author: GORDON, J.,

text:
    Devereaux v. Thomas
    C.P. of Philadelphia County,
    no. 970307640.

      Sharon N. Harvey, for petitioner.

      Walettra C. Thomas, pro se.
    October 2, 1998
   GORDON, J.,

— This court has before it a petition to expunge a domestic abuse record filed by the petitioner Wellington Devereaux. The basis for the request is that the underlying action in which he was the respondent was dismissed for lack of prosecution. After consideration of this matter and a review of the applicable law, we must deny the petition.

The facts may be summarized as follows:

On March 27, 1997, Walettra Thomas filed a petition with the First Judicial District’s Domestic Violence Unit seeking a protection from abuse order against Wellington Devereaux, the petitioner herein. The allegations in the petition recited threats of bodily harm and fell within the purview of the statute, 23 Pa.C.S. §6101 et seq. A temporary ex parte PEA order was granted and a hearing was scheduled for April 4, 1997. On the day of the hearing, Thomas failed to appear, and the case was dismissed for lack of prosecution. The temporary order was vacated.

In July 1998, Devereaux filed a petition for expungement of the domestic abuse record because of its prejudicial effect on his government employment opportunities. A hearing was scheduled for July 27, 1998, but was continued at the request of Ms. Thomas. The new hearing date of August 4, 1998 was personally served on Devereaux in the courtroom and was sent via United States mail to Thomas. At the hearing on August 4, 1998, Thomas did not appear.

The petitioner avers that this case is listed on the county or state registry in accordance with 23 Pa.C.S. §6105. He further avers that such record places him in an unfounded and prejudicial predicament because of the negative impact it will have on his ability to obtain employment with the Federal Bureau of Investigation.

Devereaux argues that because the petition was vacated without a hearing on the merits, it is akin to a non-suit in other civil litigation and, thus, has the same effect as having never been brought. Mr. Devereaux states that no harm is attendant to the Commonwealth for expungement and that there exists no party with an adverse interest to notify other than Ms. Thomas.

The issue before us is whether this court has the authority to expunge a protection from abuse record.

The legislative intent of the Protection From Abuse Act, 23 Pa.C.S. §6101 et seq., was to prevent domestic violence between family members and cohabitants. The Act allowed for a civil remedy to an ever-increasing social problem. The purpose of the legislation is not to penalize past criminal conduct, but advance protection from physical and sexual abuse. K.D., a Minor, by K.H.D., Guardian v. J.D., 696 A.2d 232 (Pa. Super. 1997); Snyder v. Snyder, 427 Pa. Super. 494, 629 A.2d 977 (1993). The court is empowered to grant broad relief to bring about a cessation of abuse. Heard v. Heard, 418 Pa. Super. 250, 614 A.2d 255 (1992).

The need for protection from a family member, intimate partner or cohabitant is sometimes more exigent because the abuser has easier access to the victim in his or her home. Because of this the legislature determined that an ex parte order is appropriate, pending a full hearing. The respondent’s due process rights are safeguarded with the requirement that a full hearing be held within 10 days.

It is widely held that spousal, child, elderly and other familial abuse is a prevalent concern within the United States. All 50 states now have enacted some form of abuse legislation to protect victims from acts of threats, physical harm, stalking and harassment.

Proponents of abuse laws argue that it is frequently a result of the abuser’s system of fear and intimidation which prevents the victim from seeking relief or halts the judicial process. These are matters the legislature considered when allowing for ex parte orders, removal of the abuser from the property and lowering the burden of proof than that which is required for a private criminal complaint.

In 1994, the PFA Act in Pennsylvania was amended. The legislature expanded the requirements for keeping an updated and statewide registration of all PFA orders as well as expanding the responsibilities of law enforcement agencies’ statistical reporting. The 1994 amendment of section 6105 added the following:

“(e) Statewide registry—

“(1) The Pennsylvania State Police shall establish a statewide registry of protection orders and shall maintain a complete and systematic record and index of all valid temporary and final court orders of protection or court-approved consent agreements, (emphasis added)

“(g) Annual report—

“The Pennsylvania State Police shall annually compile and analyze the incident report data received and publish a statewide report which includes aggregate, county and department-based statistical profiles. The Pennsylvania State Police shall transmit a copy of the annual report to the governor, the General Assembly and each domestic violence program in this Commonwealth.”

Although the district attorney or the attorney general may not have a direct interest in the court’s expungement of a PFA record, the Commonwealth as a whole may, despite Devereaux’s assertion to the contrary. The Commonwealth has a legitimate interest in maintaining abuse data which could help it identify future victims as well as those who file multiple or frivolous claims. Such a data bank has value for the purposes of research, policy-making, and/or funding. Administrative records remain valuable even when the case has been terminated for lack of prosecution.

We can find no case in this Commonwealth directly on point as to the authority of a court to expunge a PFA record. Some guidance, however, can be taken from other jurisdictions. The Massachusetts case of Vaccaro v. Vaccaro is directly on point and stands for the principle that expungement is not available for abuse petitions. In Vaccaro, an ex parte temporary abuse petition was vacated after a hearing on the merits. Subsequently, the respondent requested and the trial court granted expungement of his record based on the dismissal. The Massachusetts Supreme Judicial Court overturned the trial court, holding that all records placed in the state abuse registry must remain there, whether active or inactive.

The Massachusetts Department of Probation, which was responsible for updating and maintaining the registry, argued that there existed no statutory authority to remove someone from the registry.

The Supreme Judicial Court agreed, stating:

“The legislature’s express directive in the [abuse-registry] Act, that a computerized record be kept in the system of all orders, inactive as well as active, and the absence of a provision for removal or authority for expungement, reflects a deliberate legislative decision that all records be available for review by a judge who is considering an application for a restraining or protective order. . ..” Vaccaro v. Vaccaro, 425 Mass. 153, 680 N.E.2d 55 (1997).

In other types of civil cases, both state and federal courts have found that the states have a legitimate interest in maintaining accurate records. The United States Supreme Court ruled that it was reasonable for the government to collect and maintain private data, including a specific data bank of prescription drug users, despite the individual’s desire for anonymity. Whalen v. Roe, 429 U.S. 589 (1977). The United States Third Circuit Court of Appeals found that the government has a substantial interest in maintaining employees’ medical files for determination of workplace risks. U.S. v. Westinghouse Electric Corp., 638 F.2d 570 (1980). Our state Supreme Court denied a request that an indicated report of child abuse be expunged from an individual’s records. R. v. Commonwealth, Department of Public Welfare, 535 Pa. 440, 636 A.2d 142 (1994). Such interests should be considered with the current petition as well.

The petitioner in the present case also avers that his case is akin to that of a non-suit in other civil trial litigation. That is not entirely accurate. A voluntary non-suit is usually based on a business decision by the plaintiff that his evidence thus far is insufficient, that an offer of settlement is more appealing, or because of some other rational conclusion. Whatever the basis, it is reasonable to assume the decision is voluntary. In the area of domestic abuse, such an assumption cannot be so readily made. As mentioned above, groups who lobbied for the Protection From Abuse Act warn against viewing all acts of non-prosecution as a result of sound judgment or as totally voluntary.

The fact that a case was dismissed for lack of prosecution tells us only that the action was not heard on the merits. It can say nothing about the existence nor lack of wrongdoing by the respondent. Assuming arguendo this case can be compared to a civil action non-suit, counsel has not directed us to any case law that allows the expungement of a civil record.

The petitioner implies that because the district attorney or attorney general has no stake in the outcome of this petition, then the Commonwealth has no interest to protect and therefore will not be harmed. We disagree. When the legislature amended the Act in 1994, it specifically inserted the record-keeping provisions. The lawmakers included temporary as well as final court orders. We conclude from this that the Commonwealth does have a legitimate interest in these kinds of proceedings.

In making a determination in this matter, we must weigh the petitioner’s interest against that of the Commonwealth. Balancing the need to prevent familial and cohabitant abuse against the harm of one being falsely accused is a difficult undertaking. In making this test, we must give consideration to the legislative decision to not provide a remedy for record expunction.

Such a remedy for expunction is provided in our criminal statutes, 18 Pa.C.S. §9122, and in some forms of abuse proceedings. 23 Pa.C.S. §6337(c) (Child Protection Act). The legislature has not spoken on this issue in the area of PFA orders. With this quiescence by our representatives in the General Assembly, one can conclude that they did not intend to offer such a recourse. If so, it could have been addressed at the time of the 1994 amendment. It was not.

The petitioner’s concern is that' any potential government employer, having access to the county registry, will disqualify him because his name is in the register. We believe the petitioner’s perceived harm is speculative as to any probable loss of employment. R. v. Commonwealth, Department of Public Welfare, supra. Notwithstanding his fear, however, the PFA Act provides a safeguard for him. It declares that the Pennsylvania State Police shall enter orders, amendments and revocations in the statewide registry within eight hours of receipt. 23 Pa.C.S. §6105(e)(2).

Since the underlying case was dismissed for lack of prosecution, the temporary PFA order was vacated. Presumably this information has been placed in the registry. Anyone reviewing the record concerning the petitioner would be able to see not only that a claim was lodged against him, but the disposition of the complaint.

We conclude that this petition should be denied. If it is granted, it may become a precedential sliding slope of the type unintended by the legislature. The General Assembly of Pennsylvania has provided no provision or direction for the expunction of a PFA order and it is reasonable to conclude that a lack of such a provision was deliberate. As this is the case, this court is of the opinion it has no authority to tread in waters where the legislature has not gone, no matter how shallow the creek may be.

Based on the foregoing, Wellington Devereaux’s petition to expunge the domestic abuse record in this case must be denied.

ORDER

And now, to wit, October 2,1998, upon consideration of the petition of Wellington A. Devereaux to expunge the protection from abuse record in the above-captioned matter, it is hereby ordered and decreed the petitioner’s motion is denied.


author: BERNSTEIN, J.,

text:
    Papa v. Brodsky

      C.P. of Philadelphia County,
    April Term 1995
    no. 3022.

      Lawrence Anney, for plaintiffs.

      Timothy McCann, for defendants.
    April 20, 1998
   BERNSTEIN, J.,

ORDER

And now, April 20,1998, upon consideration of plaintiffs’ motion in limine to preclude certain testimony of Dr. James Fox M.D., said motion is granted.

Dr. Fox may be called to provide testimony including medical opinion testimony as to his treatment of plaintiff, Papa, only.

The Superior Court in the case of Alexander v. Knight, 197 Pa. Super. 79, 177 A.2d 141 (1962) affirmed the lower court decision upon the opinion of the trial court. The trial court therein said the treating physician’s “confidential or fiduciary” obligation to the patient: “includes a duty to refuse affirmative assistance to the patient’s antagonists in litigation.”

In Moses v. McWilliams, 379 Pa. Super. 150, 549 A.2d 950 (1988), the Superior Court recognized that limiting a treating physician’s testimony to the medical care and treatment rendered to the plaintiff can be an appropriate order. In that matter, Judge Greenberg entered a trial court order that permitted the treating physician to testify only as a “fact” witness and not as an expert on defendant’s behalf.

The Pennsylvania Rules of Civil Procedure recently were amended to preclude a treating physician acting as an expert witness.

This discovery rule limited the information which the defense may receive from plaintiff by restricting defense communications with treating physicians to approved discovery methods. While this rule is not specifically implicated herein since there is no discovery abuse claimed and no information was obtained other than through appropriate discovery of the treating physician’s medical records, the clear policy of Pennsylvania Law as embodied in this new rule is to preclude treating physicians from acting in a capacity adverse to their patient in court. This policy compels that plaintiffs’ motion be granted.

Obviously, Dr. Fox must be qualified to provide expert opinion testimony before he can testify to any medical opinion concerning diagnosis, the appropriateness or need for the medical care rendered by him, prognosis, or to explain any other material contained in his notes which require medical training for interpretation. Accordingly, Dr. Fox must, of course, be qualified to provide medical opinion before he can testify. Nonetheless, his testimony must be strictly limited to only those medical facts and opinions necessary for the medical care he rendered to his patient. This obviously precludes opinion as to whether the applicable standard of care was met by prior physicians or the appropriateness of treatment rendered prior to his initial visit with the plaintiff unless such medical opinion was essential to his proper care and treatment of his patient. Plaintiff herein does not seek and cannot preclude the jury from hearing any opinions held by her treating physician that were necessary for proper care and treatment.

Thus, the treating physician’s testimony is limited to the facts of treatment and opinions pertinent thereto.

      . Pennsylvania Rule of Civil Procedure 4003.6.