author: TERESHKO, J,

text:
    Cook v. S. Walter Packaging Corporation

      Jeffrey L. Abrams, for appellant.

      Jeffrey B. McCarron, for appellees.
    February 8, 2005
   TERESHKO, J,

I. PROCEDURAL HISTORY

Plaintiff, Sherrie Cook, appeals from an order dated August 20,2004, whereby the court granted defendant’s post-trial motions to set aside the July 21, 2004 verdict for plaintiff and awarded a new trial.

II. FACTUAL BACKGROUND

S. Walter Packaging Corporation is a nationwide manufacturer and retailer of custom-made packaging products. Mr. Andrew Wilson is the president of S. Walter and Mr. Richard Gettlin is its chief financial officer.

Ms. Sherrie Cook was a shareholder in, and was in charge of sales for a small business providing similar services to S. Walter. The name of Ms. Cook’s business was Accent International Inc., which was located in California.

In May 2000, after significant discussions between S. Walter and Accent, the parties entered into a proposed joint venture arrangement by which Accent’s sales operations effectively would be merged into S. Walter, with Accent’s customers being serviced and billed by S. Walter. The specifics of the proposed joint venture were incorporated in a May 4, 2000 letter from Mr. Gettlin to Mr. Ralph Dillon. The relevant points of the letter include: (1) that Mr. Dillon and Ms. Cook would receive a compensation package with a guaranteed rate of $ 125,000 per year, (2) that Mr. Dillon and Ms. Cook would share in any new sales at a rate of 3 5 percent of the gross profit, and (3) that sales commissions would be paid to Mr. Dillon and Ms. Cook at their then-current rates. (Letter of S. Walter Packaging Corp. dated May 4,2000, p. 1.)

After a due diligence examination was conducted of Accent, a sales representative agreement (SRA) was executed between S. Walter and Ms. Cook on June 11,2000. The SRA provided that Ms. Cook was employed in the capacity of a sales representative, which required her to devote her entire work-related time, energy, attention and ability exclusively to the business of the S. Walter. (SRA dated June 11, 2000, p. 1.) The SRA provided that the term of the contract was for five years and would continue on a year-to-year basis thereafter. (SRA dated June 11,2000, p. 1.)

Additionally, paragraph 3 of the SRA specifically states, “[t]he representative is retained solely at the will and discretion of the company. The company may terminate representative’s engagement at any time, with cause.” (SRA dated June 11, 2000, p. 1.)

The SRA detailed the compensation terms as follows:

“(A) Base reimbursement of living/medical/insurance expenses at an annualized rate of $125,000 per year paid on a biweekly basis.

“(B) Commission of 35 percent of the gross profit on your customers’ sales over the base sales amount. Base sales for the purpose of this agreement are defined in the amount of $600,000. Commissions will be paid on sales in excess of $600,000 each year for the preceding company’s fiscal period within 75 days of the end of that fiscal period.

“(C) Reimbursement of rent expense paid biweekly for the 5,000 square feet of space currently occupied at a current rent of $2,600 per month as long as it is deemed necessary by the company.

“(D) Reimbursement of the expense of a warehouse helper paid biweekly at the rate of $21,000 per year as it is deemed necessary by the company.

“(E) Reimbursement of pre-appro ved business-related travel expenses.” (SRA dated June 11, 2000, p. 1.)

The SRA contained an integration clause, which provided that “[t]his agreement contains the entire agreement between the parties hereto and supercedes all prior agreements and understandings, oral or written, between the parties ....” (SRA dated June 11, 2000, p. 1.)

A similar SRA was executed by Mr. Dillon. Mr. Dillon’s SRA was identical, in all material respects, to Ms. Cook’s SRA.

As a result of the discussions and agreement between Dillon, Cook and S. Walter, it was agreed that Ms. Cook and Mr. Dillon would run the West Coast operation of S. Walter. Accordingly, Ms. Cook and Mr. Dillon would receive a combined “base reimbursement” of $125,000 per year. (SRA dated June 11, 2000, p. 1.) Any combined sales in excess of $600,000, would entitle them to 35 percent of any sales over this amount. (SRA dated June 11,2000, p. 1.) Ms. Cook and Mr. Dillon were also given an annual sales forecast of approximately $962,500 dollars. (Letter of S. Walter Packaging Corp. dated May 4, 2000, p. 3.) The $962,500 figure was derived from information given by Ms. Cook as to her previous year’s (1999) sales of $592,500, as well as $370,000 in expected sales from Mr. Dillon, which was also compiled based on information he provided S. Walter Packaging. (N.T. dated 7/19/04, p. 118.)

In her first month, Ms. Cook booked orders totaling $313,000 the month of July 2000. However, this was the largest amount and the totals dissipated considerably thereafter. (N.T. dated 7/19/04, p. 38.) In August, Ms. Cook’s bookings dropped to $50,000, September $1,100. (Defendant’s exhibit 22 “S. Walter Packaging Corp. bookings analysis”.) In October, the numbers again rose slightly to $70,300, but again began to dissolve with $50,100 in November, followed by $16,000 in December. (Defendant’s exhibit 22 “S. Walter Packaging Corp. bookings analysis”.) Ms. Cook began 2001 with orders of $988 in January followed by $0 for February. (Defendant’s exhibit 22 “S. Walter Packaging Corp. bookings analysis”.) Her total bookings for 2000 were $503,030 which were significantly short of her $962,500 projected sales forecast for this year. (Defendant’s exhibit 22 “S. Walter Packaging Corp. bookings analysis”.) In addition, Ms. Cook totaled $54,894 in bookings for the first seven months of 2001. (Defendant’s exhibit 22 “S. Walter Packaging Corp. bookings analysis”.)

In terms of actual sales, Ms. Cook’s total annual sales for the six-month period remaining in 2000 was $353,000, which did not meet S. Walter’s expectation of $600,000 in sales. (N.T. dated 7/19/04, p. 39.)

Mr. Dillon did not contribute at all to this amount. In fact, Mr. Dillon did not make any sales or bookings in either 2000 or 2001. (N.T. dated 7/19/04, p. 40.)

At the end of January 2001, Mr. Wilson went to California to meet with Ms. Cook and Mr. Dillon regarding their failure to achieve the sales forecast. (N.T. dated 7/ 19/04, p. 40.) In the follow-up letter to this meeting, Mr. Wilson informed Ms. Cook that, since she missed her sales forecast for the year 2000, S. Walter would be changing her draw from $125,000 to $84,000 and would no longer reimburse her for rent expenses. (Correspondence of S. Walter to Sherrie Cook dated 2/6/01.) The letter also informed Ms. Cook that her sales forecast for 2001 was reduced to $800,000 to make it more achievable and her draw account would be reviewed in July 2001. (Correspondence of S. Walter to Sherrie Cook dated 2/6/01.) In response to the letter, Ms. Cook objected to the reduction of her draw, but continued as a sales representative for S. Walter under this reduced compensation. (Correspondence of Sherrie Cook dated 2/14/01.)

During the period from January 1,2001 through July 2001, Ms. Cook’s sales order number dropped off significantly and again fell substantially short of S. Walter’s forecast. Specifically, for this time period, her sales orders totaled $55,000. (Defendant’s exhibit 22 “S. Walter Packaging Corp. bookings analysis”.) As a result, Mr. Wilson advised Ms. Cook by correspondence that she would not meet the $800,000 sales forecast stated in their agreement in February and that the lack of sales would create an $80,000 loss for S. Walter. (Correspondence of S. Walter dated July 2,2001.) As of the date of S. Walter’s letter, Ms. Cook was 49 percent behind her target sales forecast for the year to date. Consequently, S. Walter sustained a loss of $81,110 as of July 2, 2001. (Correspondence of S. Walter dated July 2, 2001.) Mr. Wilson also indicated that Ms. Cook would not make her $800,000 sales forecast for 2001 and that it was doubtful that her sales would even exceed $450,000, which is slightly more than half of sales forecast stated in S. Walter’s letter of February 6, 2001. At that time, Mr. Wilson requested that Ms. Cook give some thought as to how they could unwind their business relationship amicably. (Correspondence of S. Walter dated July 2,2001.)

By letter dated August 13,2001, Ms. Cook notified S. Walter that she, Mr. Dillon and Accent were going to take the measures necessary to protect their interest. Ms. Cook stated that she would not continue her sales activity on S. Walter’s behalf, thereby effectively ending her employment relationship with S. Walter. (Correspondence of Sherrie Cook dated 8/13/01.)

In February 28, 2002, Ms. Cook instituted this civil action by filing her complaint against S. Walter, Mr. Gettlin and Mr. Wilson. Plaintiff alleges, inter alia, that S. Walter’s conduct by and through its officers, breached its contract with Ms. Cook. (Complaint dated 2/28/02, p. 10.)

This case proceeded to trial on July 16,2004, wherein the jury returned a verdict in favor of plaintiff Sherrie Cook and against defendant S. Walter Packaging Corporation in the amount of $680,000 on July 21, 2004. Defendants filed their post-trial motions on July 30, 2004. On August 20, 2004, the trial court granted defendants’ post-trial motion to set aside the verdict of July 21,2004, and award a new trial. Plaintiff filed her notice of appeal and defendants cross-appealed. Defendants later withdrew their appeal. Plaintiff then filed her 1925(b) statement accordingly.

The sole issue whether the trial court committed an abuse of discretion or error of law in granting defendants’ post-trial motions and awarding a new trial where the verdict of $680,000 for plaintiff was excessive and against the weight of evidence.

III. LEGAL ANALYSIS

The decision to order a new trial is one that lies within the discretion of the trial court. Coker v. S.M. Flickinger Co. Inc., 533 Pa. 441, 447, 625 A.2d 1181, 1184 (1993). In an assumpsit action, an appellate court will not reverse a court’s exercise of discretion in granting or refusing to grant a new trial unless there has been a clear abuse of that discretion or that the verdict was against the weight of the evidence and resulted in a miscarriage of justice. Spang & Co. v. United States Steel Corp., 519 Pa. 14, 24, 545 A.2d 861, 866 (1988). “To determine whether a trial court’s decision to grant a new trial constituted a palpable abuse of discretion, an appellate court must examine the record and assess the weight of the evidence; not, however as the trial judge, to determine whether the preponderance of the evidence opposes the verdict, but rather to determine whether the court below in so doing plainly exceeded the limits of judicial discretion and invaded the exclusive domain of the jury.” Id. at 24, 545 A.2d at 865.

“This means that the trial court has considerable latitude within which to act, but there are also very specific limits to what it can do.” Coker, 533 Pa. at 447, 625 A.2d at 1184. “The term ‘discretion’ imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, and discretionary power can only exist within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge.” Id. “Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions.” Id. at 447, 625 A.2d at 1184-85. “Discretion is abused when the course pursued represents not merely an error of judgement, but where the judgement is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Id. at 447, 625 A.2d at 1185.

In ruling upon a motion for a new trial, “it is necessary to consider the entire record to determine whether the verdict was arbitrary or capricious or whether it was against the weight of the evidence, or whether there was clearly error of law or palpable abuse of discretion in the rulings of the court below.” Gonzalez v. United States Steel Corp., 248 Pa. Super. 95, 108, 374 A.2d 1334, 1341 (1977). When considering whether the record supports the trial court’s decision, the court generally defers to the trial court’s judgment because, by virtue of its position, it is uniquely qualified to determine factual matters. Coker, 533 Pa. at 452, 625 A.2d at 1187.

“It is well established that one who suffers a loss due to breach of contract has a duty to make reasonable effort to mitigate her damages.” Delliponti v. DeAngelis, 545 Pa. 434, 443, 681 A.2d 1261, 1265 (1996). “In an employment case, the measure of damages is the wages which were to be paid less any amount actually earned or which might have been earned through the exercise of reasonable diligence in seeking other similar employment.” Id. The plaintiff, in an action for breach of contract, has the burden of proving damages resulting from the breach. Spang, 519 Pa. at 25, 545 A.2d at 866 (citing Massachusetts Bonding & Ins. Co. v. Johnston & Harden Inc., 343 Pa. 270, 278-80, 22 A.2d 709, 714 (1941), and East Texas Motor Freight, Diamond Division v. Lloyd, 335 Pa. Super. 464, 473, 484 A.2d 797, 801 (1984)). “This burden can be established ‘by proving that other substantially equivalent positions were available to [plaintiff] and that [she] failed to use reasonable diligence in attempting to secure those positions.’” Delliponti v. DeAngelis, 545 Pa. at 443, 681 A.2d at 1265.

The general measure of damages, applicable in cases of breach of contract, is to put the aggrieved party as nearly as possible in the same position as she would have occupied had there been no breach. Murray v. University of Pennsylvania Hospital, 340 Pa. Super. 401, 490 A.2d 839 (1985). However, damages are not recoverable if they are too speculative, vague or contingent and are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty. Restatement (Second) of Contracts §352; Murray on Contracts §226. “Damages for lost profits, like other contract damages, may not be awarded when the evidence leaves the trier of fact without any guideposts except his or her own speculation.” Merion Spring Co. v. Muelles Hnos. Garcia Torres S.A., 315 Pa. Super. 469, 486, 462 A.2d 686, 695 (1983). Specific evidence must be introduced to permit a “reasonably certain” estimate of the amount lost due to the breach. Id. “To recover costs for a breach of contract, compensation is given only for those injuries that are a direct and foreseeable result of the breach.” Reimer v. Tien, 356 Pa. Super. 192, 208, 514 A.2d 566, 575 (1986). In addition, courts have traditionally required greater certainty in the proof of damages for breach of a contract than in the proof of damages for a tort. Restatement (Second) of Contracts §352, comment (a).

Plaintiff takes the position that her annual salary of $125,000 was guaranteed whether or not she achieved her annual sales forecast. Assuming arguendo that the plaintiff was entitled to her annual salary of $125,000 for the term of her contract (five years), the maximum amount of recovery under the applicable contract theory of recoveiy of Murray, had plaintiff never been compensated, would have been $625,000. The law in Delliponti also states that we are required to then subtract any amount earned or compensation received under the contract, which was $113,000 in this case. (N.T. dated 7/20/ 04, pp. 115-19.) This amount represents compensation Ms. Cook received from the beginning of her employment with S. Walter in June 2000 until her termination inAugust 2001. (N.T. dated 7/20/04, pp. 115-19.) Thus, according to the calculation stated in Delliponti, the maximum amount of legally recoverable damages for Ms. Cook was $512,000.

However, “[i]t has long been the law in our Commonwealth that it is competent for the parties to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed or a new one substituted, either by writings or by words or by conduct or by all three.” Trustees of First Presbyterian Church of Pittsburgh v. Oliver-Tyrone Corp., 248 Pa. Super. 470, 476, 375 A.2d 193, 196 (1977).

On February 6, 2001, Andy Wilson sent correspondence which confirmed an earlier meeting whereby S. Walter would reduce Ms. Cook’s salary from $125,000 to $84,000 due to inadequate sales for 2000. (Correspondence of S. Walter Packaging dated 2/6/01.)

In addition, Mr. Wilson stated that S. Walter would no longer reimburse Ms. Cook for rent of their warehouse and office pursuant to their agreement of June 11,2000. (Correspondence of S. Walter Packaging dated 2/6/01.) The contract of June 11, 2000, specifically states with respect to reimbursement for rental expenses that “[r] eimbursement of rent expense ... as long as it is deemed necessary by the company [S. Walter].” (Sales representative agreement of 6/11/00, p. 2.) These terms confer discretionary power upon S. Walter to cease reimbursement of rental expense at any time during the contract period. S. Walter decided to exercise its right to discontinue its reimbursement of Ms. Cook’s rental expense because S. Walter sustained a loss in 2000 after taking Ms. Cook’s sales and subtracting the costs and expenses. (N.T. dated 7/19/04, pp. 109-10, defendant’s exhibit 25 “S. Walter Packaging Corp./Accent International income statement.”) According to exhibit 25, S. Walter sustained a loss of $5,676 in gross operating income for 2000 and cut the expenses in an attempt to minimize the losses sustained to S. Walter.

In response to these modified terms, Ms. Cook replied with a written letter protesting the reduction in salary and stating she continued to operate under the new terms imposed by S. Walter instead of terminating her contract. (Correspondence of Sherrie Cook and Ralph Dillon dated 2/14/01.) Notice to terminate a contract must be clear and unambiguous. Accu-Weather Inc. v. Prospect Communication Inc., 435 Pa. Super. 93, 100, 644 A.2d 1251, 1254 (1994). “Ambiguous conduct and language intended to signal contract termination will be deemed not to have terminated the contract.” Id. In Accu-Weather, our Superior Court held that the appellee did not properly terminate their contract because: (1) notice was ambiguous in that it failed to manifest a clear intent to terminate the agreement, and (2) appellee’s subsequent performance under the agreement negated the notice of termination. Id. Ms. Cook’s letter specifically states:

“I DO NOT wish to terminate this agreement. I wish to fulfill my contractual obligations. ... I wish to resolve this situation as soon as possible. I wish to have my level of income reinstated immediately. Since I’m now in a precarious situation because of your actions of cutting my compensation^] I will need a response to this letter within five days.” (Correspondence of Sherrie Cook and Ralph Dillon dated 2/14/01 p. 2.)

Although Ms. Cook demanded a response within five days, she failed to receive any response from S. Walter regarding this letter and continued under the revised terms stated by S. Walter until August 2001. Ms. Cook’s letter of February 14, 2001, does not amount to a clear and unambiguous termination of her initial (June 11, 2000) contract with S. Walter, rather her continued conduct of performing sales and collecting her new salary for $84,000 acts as an assent to the modifications proposed by S. Walter by letter dated February 6, 2001. Consequently, Ms. Cook’s continued performance of sales, despite S. Walter’s notification of her decrease in salary and cuts in reimbursement expenses, was sufficient to act as a modification to the initial contract of June 11, 2000. Under the circumstances, the modification was effective as of February 2001 and Ms. Cook continued her employment with S. Walter until August 2001, wherein her contract with S.Walter was terminated.

The amount recoverable under the modified terms of Ms. Cook’s contract with S. Walter would entitle her to receive $247,160. This amount represents the monthly payment of $6,680 per month for the 37 months remaining for which Ms. Cook was not compensated.

In addition to the issue of what Ms. Cook was legally entitled to recover in expectation damages for her base compensation from the time of February 2001 until the end of the contract period, the jury was also responsible for determining whether the evidence presented clearly and convincingly proved Ms. Cook had the ability to achieve sales in excess of her $600,000 sales forecast in order to share in 3 5 percent of any profits over and above this amount.

The case of Wilson v. Wernwag, 217 Pa. 82, 66 A. 242 (1907), cites the principle that profits may be recovered as damages if the evidence is reasonably certain and definite to justify a jury’s estimation of their extent. In its analysis, the Pennsylvania Supreme Court in Wilson v. Wernwag differentiated between recoverable profits, which are “direct and immediate fruits of the contract” and those “collateral profits,” which are too uncertain, speculative and remote to allow recovery for. The court stated:

“Profits which would certainly have been realized but for the defendant’s default are recoverable; those which are speculative or contingent are not. . . . Indeed it is clear that whenever profits are rejected as an item of damages, it is because they are subject to too many con tingencies, and are too dependent upon the fluctuations of markets and the chances of business to constitute a safe criterion for an estimate of damages.” (emphasis added)

The court used the further reasoning: “collateral profits are too remote to be considered in the measure of damages . . . ‘But profits or advantages which are the direct and immediate fruits of the contract entered into between the parties, stand upon a different footing. These are part and parcel of the contract itself, entering into and constituting a portion of its very elements ....”’

In order to award damages to plaintiff based on profits in excess of her $600,000 sales requirement would require the jury to speculate on several levels. First, the jury would have to surmise whether the plaintiff would have exceeded her $600,000 sales requirement, as well as, in which years Ms. Cook would have been able to achieve this goal, then they would have to determine how much in additional sales plaintiff would have made and how much that would have entitled her to be compensated for. All these decisions would have been made based solely on the testimony that Ms. Cook had $353,000 in sales six months into the first year of her contract with S. Walter. (N.T. dated 7/19/04, pp. 112-13.) Additionally, Ms. Cook testified that her sales with Accent the previous year of 1999 amounted to $592,500, which is below the $600,000 base sales needed before she was to join in 35 percent of any profits above that amount. (N.T. dated 7/20/04, p. 223.)

The uncertainty as to whether Ms. Cook could have ascertained the $600,000 base sales requirement and by how much is further highlighted by the vast fluctuation in her monthly sales for the year 2000. (Defendant’s exhibit 6 “S. Walter Packaging Corp. sales analysis”.) Specifically, the breakdown of Ms. Cook’s sales numbers from July 2000 to December 2000 were as follows: August $48,414; September $9,531; October $120,626; November $68,167; December $106,457. (Defendant’s exhibit 6 “S. Walter Packaging Corp. sales analysis”.) From January 2001 until August 2001, Ms. Cook accrued approximately $148,000 in sales, which is far less than the $600,000 base sales required before Ms. Cook could participate in S. Walter’s profit-sharing. (N.T. dated 7/ 19/04, pp. 128-29.) In addition to the sales figures, Ms. Cook testified as to the cyclical nature of her sales industry given the seasons and how the Christmas holiday calls for significantly higher demand for custom boxes and bags. (N.T. dated 7/20/04, pp. 58-59.)

Taking these facts into consideration, any amount included in the jury’s award which would have Ms. Cook achieving profit-sharing status in sales was against the weight of evidence. Plaintiff failed to present any evidence that achieving profit-sharing status was anything more than “collateral profits” which were too speculative and contingent upon market fluctuations. Therefore, any amount of recovery allocated to the prospect of Ms. Cook of achieving profit-sharing status with S. Walter in any year of her contract coupled with speculation as to the amount of profit-sharing she would have gained is inappropriate for the jury’s consideration in their deliberation.

Based upon the above analysis, the jury’s award of $680,000 is clearly against the weight of evidence presented at trial. Not only is this amount in excess of any recovery plaintiff is entitled according to contract law for expectation damages, but also any amount added based on the theory that she was entitled to profits for sales above her $600,000 sales forecast. Any portion of the jury’s award which included Ms. Cook attaining profit-sharing status would be based on pure speculation and constitute “collateral profits,” which are unrecoverable according to the law. Thus, the court did not commit an error of law or abuse its discretion in granting defendant’s post-trial motions.

IV. CONCLUSION

For the reasons stated above, this court respectfully requests the Superior Court to affirm the trial court’s order of August 20,2004, which granted defendants’ post-trial motion to set aside the verdict of July 21,2004, and award a new trial.

      . Bookings are orders being taken, but not yet produced, shipped and invoiced to the customer. Where the “sales amount” represents all of those functions have taken place, the product has been produced and shipped and billed to the customer through the invoicing system. (N.T. dated 7/19/04, p. 108.) Not all bookings or orders result in sales. Orders can be cancelled, changed, altered or stopped for a variety of reasons. (N.T. dated 7/19/04, p. 109.)

      . Although this time period represents the time from which Ms. Cook was employed, her pay period was only 13 months during this period. For purposes of calculating the $113,000 credit, Ms. Cook received seven monthly payouts of $10,416.67 under her initial contract salary of $125,000 annually. Thereafter she received six monthly payouts of $6,680 under the modified contract salary of $84,000. The actual months she received compensation began in July 2000 until she received her final payment in July 2001. (N.T. dated 7/20/04, pp. 115-19.)

      . This amount was computed by taking into account the gross operating figures from August 2000 to January 2001 listed in defendant’s exhibit 25. July 2000 was not factored in arriving at this figure for the above-stated reasons. See n.2, supra.

        . Id. at 93-94, 66 A. at 246.

      . 217 Pa. 82, 93, 66 A. 242, 246 (1907).

      . Id. (citing Griffin v. Colber, 69 Am. Dec. 718 (N.Y.)).

      . Id.

      . No “sales” were recorded for July 2000 because, at that time, orders were placed and manufacturing, shipping and billing of the product had yet to take place in order for the order to be transformed into sales. See n.l, supra. (N.T. dated 7/19/04, p. 108.)


source: Caselaw Access Project

author: BARATTA, J,

license: Public Domain

text:
    Fenchen v. St. Luke’s Hospital

      C.P. of Northampton County,
    no. C0048 CV2001 007202.

      John P Kopesky, for plaintiffs.

      Paul F. Laughlin, for defendant.
    February 1, 2005
   BARATTA, J,

I. FACTUAL AND PROCEDURAL HISTORY

Presently before the court is defendant, St. Luke’s Hospital’s motion for summary judgment in plaintiffs’, George D. Fenchen and ChrystynaM. Fenchen’s, medical malpractice action against St. Luke’s and several physician-defendants. In its motion, St. Luke’s claims that it cannot be directly liable or liable under a theory of ostensible agency to plaintiffs.

By way of factual background, the plaintiffs, Mr. and Mrs. Fenchen, are married. At the time of the alleged malpractice, Mr. Fenchen was 47 years old. Mr. Fenchen has attended medical school in the Dominican Republic. However, he is not licensed to practice medicine in the United States or abroad, but has been employed in the medical field within the United States. On May 6,1999, Mr. Fenchen visited South Mountain Medical Center concerning discomfort in and around his hips. After an ELISA test at South Mountain, Mr. Fenchen was diagnosed with Lyme disease with myelitis.

Following his visit at South Mountain, Mr. Fenchen was admitted as an in-patient into St. Luke’s by Dr. Christopher Snyder of South Mountain on May 7, 1999, to determine whether his symptoms were the result of Lyme disease with myelitis, or whether the myelopathic symptoms he was experiencing were the result of a spinal cord lesion or some other etiology.

Kirth W. Steele D.O., of South Mountain, was Mr. Fenchen’s attending physician at St. Luke’s. As a result of Mr. Fenchen’s symptoms and complaints, he had an in-hospital consultation with neurologist, Sharon A. Beckhard M.D. Dr. Beckhard examined Mr. Fenchen on May 7, 1999. Dr. Beckhard’s initial diagnosis was: (a) Lyme disease or some other myelitis affecting the thoracic spine; (b) early onset of Guillain-Barré Syndrome; (c) Amyotrophic Lateral Sclerosis, the presence of which was doubted; and (d) the presence of a spinal cord mass or lesion, the presence of which was also doubted. Based on her examination, Dr. Beckhard ordered various tests and procedures to further aid in the diagnosis of Mr. Fenchen’s condition, including: (a) an MRI of Mr. Fenchen’s thoracic spine, with Gadolinium enhancement, to rule out the presence of a spinal cord lesion; (b) a lumbar puncture for the purpose of obtaining a sample of Mr. Fenchen’s cerebrospinal fluid for pathologic analysis; (c) an electromyogram and a nerve conduction to aid in the diagnosis of Guillain-Barré Syndrome or Amyotrophic Lateral Sclerosis; and (d) a western blot to confirm the presence of Lyme disease.

Later on May 7,1999, an MRI of Mr. Fenchen’s spine was performed at St. Luke’s Hospital. The MRI films were then read and interpreted by defendant, Brian S. Polesuk M.D. At the time when Dr. Polesuk read Mr. Fenchen’s MRI films, he was employed by Valley Medical Imaging Associates, and was an independent contractor of St. Luke’s. See deposition of Dr. Polesuk, 10/ 20/03, pp. 8-9. Dr. Polesuk interpreted the MRI films of Mr. Fenchen’s thoracic spine as having a “normal MRI appearance.” At that time, and in reliance to Dr. Polesuk’s report, Dr. Beckhard did not review the films from Mr. Fenchen’s thoracic spine MRI.

The lumbar puncture was consistent with the possibility of Lyme disease but was otherwise non-diagnostic. The nerve conduction study ordered by Dr. Beckhard was normal and the electromyogram was “limited” and non-diagnostic. Consequently, Mr. Fenchen was diagnosed with Lyme disease with myelitis. Mr. Fenchen was discharged from St. Luke’s Hospital on May 13, 1999, with directions for “aggressive intravenous Rocephin therapy as an outpatient as well as physical therapy.”

Thereafter, over the summer months of 1999, Mr. Fenchen followed the regiment of physical therapy prescribed; however, his condition did not improve. By early October 1999, Mr. Fenchen’s condition had deteriorated as he lost some control of his bowel and bladder functions; had difficulty in obtaining and maintaining an erection; his skin tone and skin texture were altered; and he was experiencing muscle atrophy in his lower extremities and buttocks.

As a result, on October 8,1999, a second MRI of Mr. Fenchen’s thoracic spine was ordered by Dr. Beckhard and performed at MRI of Easton. The films from the second MRI of Mr. Fenchen’s thoracic spine were examined and interpreted by Christopher Chapman M.D. After reviewing the MRI films, Dr. Chapman’s report revealed that Mr. Fenchen’s spine contained no lesions.

After receiving Dr. Chapman’s report, Dr. Beckhard reviewed the October 8, 1999 MRI films. Dr. Beckhard observed evidence of an arteriovenous fistula in Mr. Fenchen’s spine. Dr. Beckhard then reviewed the May 7, 1999 MRI films and again observed evidence of an arteriovenous fistula of the spine. Consequently, Dr. Beckard suspected a vascular anomaly, and ordered a spinal angiogram onNovember 1,1999, for Mr. Fenchen.

On November 1, 1999, a spinal angiogram confirmed that Mr. Fenchen had an arteriovenous fistula. Then, on November 23,1999, Mr. Fenchen was transferred to Wills Eye Hospital, where he underwent a corrective procedure. The surgery proved effective; however, Mr. Fenchen continues to have neurological disorders including bladder and bowel control problems, diminished sexual function, a significant limp, and he requires the use of pain medication.

Plaintiffs allege that the delay in the diagnosis and treatment of Mr. Fenchen’s arteriovenous fistula increased the risk that he would suffer permanent nerve damage and impairment of neurological function.

Plaintiffs originally filed the medical malpractice action on September 18,2001, by writ of summons, against St. Luke’s, Dr. Beckhard, Neurology of Bethlehem P.C., Dr. Polesuk, Michael SachenikM.D., Dr. Chapman, Earth Steele D.O., and MRI of Easton who treated Mr. Fenchen from May through August 1999. A complaint was subsequently filed by the plaintiffs on November 29,2001. However, since the complaint was filed, defendants Dr. Beckhard, Neurology of Bethlehem P.C., Dr. Chapman, Dr. Sachenik, and MRI of Easton have been dismissed.

Plaintiffs’ complaint alleges liability against St. Luke’s on the basis of vicarious liability or, in the alternative, that St. Luke’s was holding out the physicians named in the complaint as attending physicians, staff physicians, residents, interns, externs, employees, agents, servants and/or workers of St. Luke’s. See plaintiffs’ complaint, ¶¶112-13. Plaintiffs claim that St. Luke’s is liable to plaintiffs under the theory of ostensible agency, because plaintiff entered the hospital to receive treatment and was misdiagnosed by the named defendant doctors, specifically Dr. Polesuk’s reading of the May 7, 1999 MRI films.

St. Luke’s filed the instant motion for summary judgment on October 18,2004. The matter was listed for the January 4, 2005 argument list.

II. LEGAL STANDARD

Pennsylvania Rule of Civil Procedure 1035.2 states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, 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 the jury.” Pa.R.C.P. 1035.2.

Summaiy judgment may be granted only in the clearest of cases where the record shows that there are no genuine issues of material fact and also demonstrates that the moving party is entitled to judgment as a matter of law. Trowbridge v. Scranton Artificial Limb Co., 560 Pa. 640, 747 A.2d 862 (2000); P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 153, 723 A.2d 174, 176 (1999). Summaiy judgment is only appropriate in the clearest of cases because an order favorable to the moving party will prematurely end an action. Scopel v. Donegal Mutual Insurance Company, 698 A.2d 602 (Pa. Super. 1997).

The moving party has the burden of proving the nonexistence of any genuine material fact. O’Rourke v. Pennsylvania Department of Corrections, 730 A.2d 1039, 1041 (Pa. Commw. 1999); citing Kee v. Turnpike Commission, 722 A.2d 1123 (Pa. Commw. 1998). Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which it bears the burden of proof... establishes the entitlement of the moving party to judgment as a matter of law. Murphy v. Duquesne University of the Holy Ghost, 565 Pa. 571, 590, 777 A.2d 418, 429 (2001), citing Young v. PennDOT, 560 Pa. 373, 376, 744 A.2d 1276, 1277 (2000). The record must be viewed in the light most favorable to the nonmoving 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).

III. DISCUSSION

St. Luke’s argues that it is entitled to summary judgment in this matter because plaintiffs have provided no direct evidence of St. Luke’s breaching a duty of care to Mr. Fenchen nor is there sufficient evidence to support liability based on ostensible agency. St. Luke’s further contends that summary judgment is also warranted against Mrs. Fenchen’s derivative claim for loss of consortium.

First, plaintiffs are in agreement with St. Luke’s that there is no evidence to support a claim of direct negligence on the part of St. Luke’s. See plaintiffs’ revised memorandum, 12/27/04, p. 10. Additionally, plaintiffs are not proceeding against St. Luke’s on a traditional theory of vicarious liability. Thus, our sole issue is whether St. Luke’s may be liable to plaintiffs under the theory of ostensible agency.

Generally, a hospital is not liable for the negligence of their independent contractor physicians. However, an exception to this general rule based on Restatement (Second) of Torts §429 was recognized by the Superior Court in Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980). Capan recognized that a physician may be considered an “ostensible” agent of a hospital, such that the hospital may be liable for the malpractice of independent contractor physicians.

Capan involved a physician’s negligent care of a patient while in a hospital emergency room. The patient brought suit against the hospital and the hospital defended on the ground that the physician was not its agent, but was an independent contractor retained to service its emergency room.

The Superior Court held that there are two factors that must be examined when addressing a claim for ostensible agency: (1) whether the patient looked to the institution, rather than the individual physician for care, and (2) whether the hospital holds out the physician as its employee. Id. at 369, 430 A.2d at 649. See also, Yacoub v. Lehigh Valley Medical Associates PC., 805 A.2d 579 (Pa. Super. 2002), appeal denied, 573 Pa. 692, 825 A.2d 639 (2003); Goldberg ex rel. Goldberg v. Isdaner, 780 A.2d 654, 660 (Pa. Super. 2001); Parker v. Freilich, 803 A.2d 738 (Pa. Super. 2002).

A “holding out” occurs when the hospital acts or omits to act in some way which leads the patient to a reasonable belief he is being treated by the hospital or one of its employees. See Capan, supra; Yacoub, supra.

In Capan, the court found that the patient, in going to the hospital’s emergency room for treatment, was looking to the hospital as an institution as opposed to a specific emergency room physician for care. Additionally, the hospital was deemed to be holding itself out to the public as being responsible for the physicians working in the emergency room. The hospital was held liable to the patient.

On March 20, 2002, the MCARE Act was enacted in this Commonwealth establishing the statutory standard for ostensible agency. The MCARE Act provides:

“(a) Vicarious liability. — A hospital may be held vicariously liable for the acts of another health care provider through principles of ostensible agency only if the evidence shows that:

“(1) a reasonably prudent person in the patient’s position would be justified in the belief that the care in question was being rendered by the hospital or its agents; or

“(2) the care in question was advertised or otherwise represented to the patient as care being rendered by the hospital or its agents.

“(b) Staff privileges. — Evidence that a physician holds staff privileges at a hospital shall be insufficient to establish vicarious liability through principles of ostensible agency unless the claimant meets the requirements of subsection(a)(1) or (2).” See 40 Pa.C.S. § 1303.516. The MCARE Act is in line with the Capan decision, however it is Capan and its progeny that has developed the law with respect to ostensible agency.

In Simmons v. St. Clair Memorial Hospital, 332 Pa. Super. 444, 481 A.2d 870 (1984), an admitting physician was held to be the ostensible agent of the defendant-hospital. The decedent committed suicide while he was a patient in the psychiatric unit of the defendant-hospital. Decedent had been to the hospital twice, and it was during the second trip that he committed suicide. On this first visit decedent was admitted to the hospital via the emergency room and Dr. Alan Wright was the on-call physician. When decedent was admitted, decedent’s parents were told that Dr. Wright was the head of the hospital’s psychiatry department and that he was qualified. At the second admission, Dr. Wright admitted the decedent. At all times, Dr. Wright was an independent contractor to the hospital; however, in his role as department head, he was responsible for the psychiatry department’s administration, including handling problems with patient care. When decedent was admitted the second time, he was placed on general observation and not a heightened suicide observation.

The court held that there were factual issues present for the jury as to whether Dr. Wright was an ostensible agent of the hospital. Decedent had entered the hospital via the emergency room, and the decedent’s parents were told that Dr. Wright was qualified and the head of psychiatry in the hospital. Therefore, the jury could reasonably conclude that the decedent looked to the hospital for care and that the hospital “held out” the doctor as its employee. Id.

In the present case, an analysis of the two factors set forth by the court in Capan leads to the conclusion that there are material issues of fact present as to whether Dr. Polesuk is an ostensible agent to St. Luke’s. While Mr. Fenchen was not admitted to St. Luke’s via the emergency room, he was admitted for the purposes of the availability and use of equipment located within the hospital for diagnosis of his condition. Simply stated, he was told that he needed to get an MRI while at St. Luke’s. While in the hospital, the staff wheeled him into the MRI room for the procedure, which was later given to Dr. Polesuk to interpret. Mr. Fenchen did not meet Dr. Polsesuk, nor did he seek to retain the services of Dr. Polesuk.

St. Luke’s argues that there is no evidence that Dr. Polesuk was “held out” as its employee or agent. St. Luke’s contends that there were no representations made to Mr. Fenchen that Dr. Polesuk was an employee of St. Luke’s, and therefore, it should have been clear that Mr. Fenchen’s personal physicians were orchestrating his care. In addition, St. Luke’s argues that Mr. Fenchen’s medical training and experience in the medical field should have put him on proper notice of the status of the physicians practicing at St. Luke’s.

We find this argument unconvincing. As stated previously, a “holding out” occurs when the hospital acts or omits to act in some way which leads the patient to a reasonable belief he is being treated by the hospital or one of its employees. While Mr. Fenchen’s knowledge of general medical practices may be evidence that he has some familiarity with the inner workings of a hospital, it does not preclude a jury from reasonably believing that Dr. Polesuk qualifies as an ostensible agent of the hospital. The record suggests that Mr. Fenchen sought treatment from St. Luke’s for testing and diagnosis of his condition. Thus, there is a factual issue as to whether Mr. Fenchen reasonably looked to the hospital for the proper diagnosis of his MRI results and whether the actions of St. Luke’s can be reasonably considered as holding out Dr. Polesuk as an agent or employee of the hospital.

Therefore, because summary judgment may only be entered in the clearest of cases, and because there are questions of material fact present as to whether Dr. Polesuk was the ostensible agent of St. Luke’s, summary judgment cannot be entered. Furthermore, because we are denying summary judgment as it pertains to Mr. Fenchen’s claims against St. Luke’s, summary judgment is not appropriate for Mrs. Fenchen’s loss of consortium claim against St. Luke’s.

IV. CONCLUSION

For the reasons noted herein, St. Luke’s motion for summary judgment is denied.

ORDER

And now, February 1, 2005, the motion for summary judgment filed on behalf of the defendant, St. Luke’s Hospital, is denied.

      . St. Luke’s has questioned the adequacy of plaintiffs’ complaint with regard to the theory of ostensible agency. The purpose of pleadings is to place the defendants on notice of the claims upon which they will have to defend. See McClellan v. Health Maintenance Organization of Pennsylvania, 413 Pa. Super. 128, 604 A.2d 1053 (1992); see also, Yacoub v. Lehigh Valley Medical Associates P.C., 805 A.2d 579 (Pa. Super. 2002), appeal denied, 573 Pa. 692, 825 A.2d 639 (2003). Here, a fair reading of the complaint gives St. Luke’s adequate notice of plaintiffs’ claim.

      . Restatement (Second) of Torts §429 provides: one who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.


author: SCHMEHL, J.L., J,

text:
    Kerper v. Educators Mutual Life Insurance Company

      C.P. of Berks County,
    no. 99-8259.

      Brett A. Huckabee, for plaintiff.

      George C. Werner, for defendant.
    December 10, 2004
   SCHMEHL, J.L., J,

The plaintiff, William W. Kerper, is an insured under a policy issued by the defendant, Educators Mutual Life Insurance Company, through plaintiff’s former employer, Reinsel & Company. The policy provides for payment of monthly benefits in the event of the insured’s disability. In 1995, Mr. Kerper suffered two serious injuries. He continued to work on a part-time, sporadic basis until the pain from his injuries compelled him to leave employment with Reinsel. At the beginning of 1997, he filed a claim with Educators. Disability payments were made from April of 1997 throughApril of 1999. However, in May of 1999, Educators sent Mr. Kerper a letter, advising him that his benefit eligibility had terminated because they were of the opinion that he suffered only from a mental illness and not from any physical disability.

The plaintiff subsequently instituted the instant action under the Employee Retirement Security Act of 1974 (ERISA), asserting that Educators breached its duty to pay benefits. Specifically, he alleged that the insurance policy entitles him to monthly benefits of $7,000 per month, less Social Security disability payments of$l,298, until April 2012, plus statutory attorneys fees.

A non-jury trial was held before this court on June 24, 2004. On July 6, 2004, this court issued a verdict in favor of the plaintiff and against the defendant in the total amount of $353,524 ($5,702 times 62 months). Both parties then filed post-trial motions, with Educators seeking a judgment n.o.v. or, in the alternative, a new trial, and Kerper arguing that the verdict should have included interest at the legal rate. On October 1, 2004, this court issued an order denying both parties’ post-trial motions. On October 18, 2004, Educators appealed this order to the Superior Court.

In accordance with Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, this court ordered the defendant to file a concise statement of matters complained of on appeal. On November 4,2004, the defendant filed this statement, alleging the following:

(1) The trial court erred in heating the benefits claim of William W. Kerper, made under an employee benefit welfare plan, as a claim for breach of contract, as his claim was one for benefits under ERISA, permitting only a judicial review of the plan administrator’s benefits decision.

(2) The trial court erred in failing to treat Kerper’s claim for benefits, made under an employee welfare benefit plan, as permitting only a judicial review of the plan administrator’s benefits decision under the arbitrary and capricious standard.

(3) In the alternative, the trial court erred in failing to treat Kerper’s claim for benefits, made under an employee welfare benefit plan, as permitting only a judicial review of the plan administrator’s benefits decision under a heightened scrutiny/arbitrary and capricious standard.

(4) The trial court erred in failing to treat Kerper’s claim for benefits, made under an employee welfare benefit plan, as permitting only a judicial review of the plan administrator’s benefits decision and limited to the administrative record as it existed when the plan administrator made [his] decision.

(5) The trial court erred in awarding a verdict on Kerper’s claim for benefits, made under an employee benefit welfare plan, by considering testimony or other evidence from a treating physician regarding his opinions based on treatment beginning in 2002, when the trial court’s role was limited to a judicial review of the benefits decision made in 1999.

(6) The trial court erred in awarding a verdict on Kerper’s claim for benefits, made under an employee benefit welfare plan, by utilizing a standard of judicial review other than whether the plan administrator’s benefits decision was without reason, unsupported by substantial evidence and/or erroneous as a matter of law.

(7) The trial court erred in failing to grant Educators’ post-trial motions, and specifically by failing to find there was insufficient evidence to support the verdict following the trial in this matter, since the trial court’s verdict in effect overruled the plan administrator’s benefits decision which should have been accorded deference.

(8) The trial court erred in failing to grant Educators’ post-trial motions, and specifically by failing to grant Educators a judgment n.o.v. since, under the arbitrary and capricious standard of judicial review, insufficient evidence was produced by Kerper to overrule the plan administrator’s benefits decision.

(9) The trial court erred in failing to grant Educators’ post-trial motions, and specifically failing to award Educators a new trial, since, under the arbitrary and capricious standard of review, insufficient evidence was produced by Kerper to overrule the plan administrator’s benefits decision.

(10) The trial court erred in failing to grant Educators’ post-trial motions, and specifically by failing to award Educators a new trial, where the trial court improperly allowed the admissions of, and improperly considered the testimony of, Dr. Gould, whose testimony was completely irrelevant to and not admissible on the question of whether the plan administrator’s benefits decision made in 1999 should have been overruled.

This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure and for the following reasons, this court asks that the instant appeal be denied.

THE COURT DID NOT ERR IN RENDERING A VERDICT IN FAVOR OF THE INSURED

The standard of review following a non-jury trial is as follows:

“In our review on this case, we must be mindful that findings of a trial judge in a non-jury case must be accorded the same weight and effect on appeal as the verdict of a jury, and will not be reversed in the absence of an abuse of discretion or a finding of a lack of eviden-tiaiy support. Firestone v. Luther Ford Sales Inc., 271 Pa. Super. 480, 414 A.2d 355 (1979). The appellate court, in these circumstances, is limited to determinations of whether the trial court’s findings are supported by competent evidence and whether the trial court committed an error of law. Metz Contracting Inc. v. Boxer Heights Inc., 261 Pa. Super. 177, 395 A.2d 1373 (1978). It is also clear that, in reviewing the findings of the trial judge, the victorious party is entitled to have the evidence viewed in the light most favorable to him and all the evidence and proper inferences favorable to the successful party must be taken as true and all unfavorable inferences rejected. Courts v. Campbell, 245 Pa. Super. 326, 369 A.2d 425 (1976); Colish v. Goldstein, 196 Pa. Super. 188, 173 A.2d 749 (1961). This is especially true where the credibility of witnesses had to be weighed by the lower court. Brentwater Homes Inc. v. Weibley, 471 Pa. 17, 369 A.2d 1172 (1977).” Brenna v. Nationwide Insurance Co., 294 Pa. Super. 564, 567-68, 440 A.2d 609, 611 (1982).

The evidence at trial revealed the following. In 1979, Reinsel and Company, a Reading-based accounting firm, hired William W. Kerper CPA as a staff accountant. In the mid-1980s, he rose to the position of partner in charge, supervising the audit department and credit union business. As part of his duties, he evaluated employees and reviewed financial statements and management letters. This required Mr. Kerper to spend more than half of his working hours traveling to Philadelphia, Allentown, and their surrounding suburbs. During this time, he also conducted seminars on behalf of the Pennsylvania Institute of CPAs. His workdays usually began early in the morning and ended late at night.

In July of 1995, Mr. Kerper had a slip and fall accident at the Fairgrounds Square Mall in Reading. Later that same year, on December 5, 1995, he was severely injured in an automobile accident. After both of these accidents, Mr. Kerper experienced daily symptoms of lower back pain, right sciatic pain, and buttock pain. The pain frequently becomes unbearable, causing him to lie down. He also experiences a burning and tingling sensation in his feet and knees. He has a similar sensation, albeit to a lesser degree, in his hands and wrists. Finally, he gets at least two migraine headaches each week, the duration of which varies anywhere from a couple of hours to over a day.

To help alleviate these symptoms, Mr. Kerper takes Neurontin and Trileptal on a daily basis. Both of these medications leave him feeling drowsy and lethargic. In addition, he takes Imitrix for his migraine headaches on an as needed basis.

Mr. Kerper’s injuries have significantly affected his daily activities. He is no longer able to drive on a regular basis. However, he does occasionally use his car to drive down his own lane to pick up his mail. He drives on public roads only once or twice a year. He also has problems using the toilet and shaving because of his problems with his hands. He now has a beard. If he is having a “good day,” in terms of his pain, he arises early in the morning, does some exercises, helps his wife with some light household chores, and does some paperwork. The rest of his time is spent trying to relax to alleviate his symptoms.

The injuries have had an impact on his mental functioning as his ability to concentrate is now limited. Also, when he worked as an accountant, Mr. Kerper’s memory was sharp. Today, he has difficulty remembering names and numbers.

Mr. Kerper has been treated by a number of doctors, including, but not limited to, the following: Dr. Strobel (a pain management specialist), Dr. Gould (a neurologist and sleep disorder specialist), Dr. Wirth (family physician), Dr. Craig Johnson (a neurosurgeon), Dr. Maragakis (a neurologist), Dr. Asbury (a neurologist), and Dr. Kaufman (a podiatrist). These doctors have submitted numerous written reports to Educators concerning Mr. Kerper’s diagnosis, prognosis, and treatment. All of these reports indicate that he suffers from painful physical limitations. (See plaintiff’s exhibit no. 5.)

The court viewed the videotaped deposition of Dr. Gould, a neurologist and sleep disorder specialist. He began treating Mr. Kerper in July 2002 and has seen him several times after that. After all of these visits and after reviewing the medical records of other treating physicians, Dr. Gould diagnosed Mr. Kerper with peripheral neuropa-thy due to monoclonogamopathy. According to Dr. Gould, neuropathy is a disease of the nerves — not a psychiatric illness. To treat the neuropathy, Dr. Gould recommended altering the pain medication and treating the abnormal protein level in Mr. Kerper’s blood. Finally, Dr. Gould concluded that Mr. Kerper is physically disabled.

The plaintiff’s wife, Janice Kerper, also testified. In addition to corroborating Mr. Kerper’s testimony, she noted that his physical injuries have diminished his ability to communicate and interact with others.

The defendant’s witnesses consisted of Ken Wasnock, a life and disability claim manager employed by Educators, and Dr. Stephen Katz, the insurance company’s independent medical examiner. Mr. Wasnock testified that the insurance policy contained a mental illness/drug and alcohol limitation. According to Mr. Wasnock, this provision limits disability payment to 24 months when the disability results from mental illness conditions. Mental illness is defined in the policy as “mental, nervous or emotional diseases or disorders of any type without demonstrable organic origin.” See defendant’s exhibit no. 5.

Mr. Wasnock defended his decision to terminate Mr. Kerper’s benefits, claiming that the “reports from multiple physicians were concluding that . . . there was a pain disorder . . . but that the physical findings did not correlate with the physical examinations” and that Mr. Kerper’s problems really stemmed from a “psychological overlay.” (N.T. 6/24/2004 pp. 22-23.) While Mr. Wasnock claimed to have reviewed the reports of several of Mr. Kerper’s treating physicians {i.e., Dr. Johnson, Dr. Brockman, and Dr. Strobel), he failed to indicate with any specificity where these doctor reports agree with his conclusion that there is a “psychological overlay.” However, in an effort to bolster his termination decision, Mr. Wasnock testified that he hired a psychologist, Louis Poloni Ph.D., to evaluate Mr. Kerper. He also sent Mr. Kerper’s various medical records to a physician, Wilhelmina C. Korevaar M.D., and also to a peer review organization, US Medical Review. Finally, Mr. Wasnock sent Mr. Kerper to an independent medical evaluation performed by Richard I. Katz M.D.

This court reviewed the reports of these various experts and also the videotape deposition of Dr. Katz. In consideration of all of the above, the court finds that Educators’ decision was not based on any sound judgment but appears to have been motivated by a desire not to pay the claim.

First, with regard to the psychological evaluation performed by Louis Poloni Ph.D., this court fails to understand how Educators could conclude that a non-medical psychologist is qualified to determine whether a patient is physically disabled. At best, a competent psychologist can determine only whether someone is suffering from a mental ailment. Notwithstanding this inherent flaw in Educators’ reasoning, Dr. Poloni concluded that Mr. Kerper’s evaluation suggested that he “has a pain disorder associated with psychological factors and a medical condition.” (emphasis added) (See defendant’s exhibit no. 9.) Therefore, even the defendant’s expert did not rule out a medical condition as the root cause of Mr. Kerper’s disability.

Moreover, the mere fact that an individual suffers from both a physical disability and a mental illness does not preclude a finding that that person is physically disabled. Indeed, almost everyone who becomes physically disabled as a result of a traumatic injury will have to cope with concurrent mental health issues. Thus, while the 24-month mental illness limitation set forth in the policy would apply in a situation where an otherwise healthy insured suddenly develops a mental illness (e.g., schizophrenia), it does not apply in a case where a person suffers physical trauma and then might also have some degree of mental health problems. Therefore, Educators erred in basing their decision in whole or in part on Dr. Poloni’s report.

As for the record reviews performed by Dr. Korevaar and US Medical Review, both of these reviews are biased to the point of being incredulous. For instance, Dr. Korevaar’s conclusion that Mr. Kerper could be “gainfully employed” is based on, inter alia, the fact that he “has maintained a stable marital and family relationship.” (See defendant’s exhibit no. 11.) This was not a valid basis to conclude that Mr. Kerper is not disabled. In fact, taking Dr. Korevaar’s reasoning to its logical conclusion, Christopher Reeve was not disabled because he also had maintained a stable marital and family relationship after his accident. The testimony of Dr. Katz uses similar reasoning.

Contrary to the narrow interpretation of all of the defendant’s experts, the term “disability” is defined in the policy as follows:

“ ‘Disability’ and ‘disabled’ mean that because of injury or sickness:

“(1) the totally disabled insured cannot perform each of the material duties of his regular occupation; or

“(2) the residually disabled insured, while unable to perform all of the material duties of his regular occupation on a full-time basis, is:

“(a) performing at least one of the material duties of his regular occupation or another occupation on a part-time or full-time basis; and

“(b) earning currently at least 20 percent less per month than his indexed pre-disability earnings due to that same injury or sickness.

“For this definition of disability, the elimination period is a period of consecutive days of total and/or residual disability for which no benefit is payable.” (Defendant’s exhibit no. 5, p. 5. See also, defendant’s exhibit no. 5, p. 36 (indicating that Mr. Kerper chose the above definition of disability when he applied for the policy).)

Words of a disability insurance policy must be reasonably interpreted and liberally construed in favor of the insured. Safran v. Mutual Life Insurance Company of New York, 210 Pa. Super. 408, 234 A.2d 1 (1967). While Educators could have acknowledged that Mr. Kerper is no longer able to perform the material duties of a partner in an accounting firm, such as Reinsel & Company, and while Educators could have relied on the numerous reports from the plaintiff’s treating physicians, Educators instead chose to shirk its duty under the policy and chose instead to rely solely on opinions from its own hired experts. Therefore, defendant’s claim that the court used the wrong standard of review in reaching its verdict is without merit because, under any legal standard (de novo, arbitrary and capricious, or heightened scrutiny/arbitrary and capricious), Educators had no right to terminate benefits.

Finally, Educators’ claim that the court improperly considered the testimony of Dr. Gould is also meritless. Prior to trial, the defendant filed a motion in limine to preclude any testimony by Dr. Gould regarding the plaintiff’s disability, arguing that the opinion was beyond the scope of any reports or discovery provided by plaintiff’s counsel. Rule 4003.5(c) of the Pennsylvania Rules of Civil Procedure provides as follows:

“(c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, the direct testimony of the expert at the trial may not be inconsistent with or go beyond the fair scope of his or her testimony in the discovery proceedings as set forth in the deposition, answer to an interrogatory, separate report, or supplement thereto. However, the expert shall not be prevented from testifying as to facts or opinions on matters on which the expert has not been interrogated in the discovery proceedings.” Pa.R.C.P. 4003.5 (c).

As plaintiff noted in his post-trial brief, the rule is intended to prevent surprise at trial. See Boyce v. St. Paul Property and Liability Insurance Co., 421 Pa. Super. 582, 618 A.2d 962 (1992). In Boyce, the Superior Court allowed an expert to testify beyond the scope of his report because the adverse party knew well in advance of trial the nature of the testimony and had an ample opportunity to rebut it. Similarly, Dr. Gould’s report clearly put defendant on notice of the nature and extent of his testimony. Thus, Educators certainly should have expected that the plaintiff was calling Dr. Gould as a witness to opine on the issue of whether or not Mr. Kerper is disabled. Moreover, this deposition took place five months prior to trial, giving the defendant ample opportunity to produce witnesses to rebut it. Clearly, there was no surprise. At any rate, the court was more impressed with, and chose to follow, Dr. Gould’s overall analysis of Mr. Kerper’s condition. In any event, the issue of disability was for the court to determine based on the evidence presented. Therefore, the court did not err in allowing Dr. Gould to testify in this proceeding.

Accordingly, for all the foregoing reasons, the instant appeal should be denied.

      . The court has reviewed all of the records that were available to Mr. Wasnock. Contrary to his contentions, these records do not indicate that Mr. Kerper is disabled because of a “psychological overlay.”

      . Under cross-examination, Dr. Katz opined that even Stephen Hawking, the famous British theoretical physicist and author who is confined to a wheelchair and forced to use a computer-generated voice synthesizer to communicate, is not disabled because he writes books. (See defendant’s exhibit no. 14, pp. 44-45.) Moreover, Dr. Katz also opined, contrary to Educators’ position, that Mr. Kerper “does not appear to be mentally ill.” Id. at 178.


author: MINORA, J,

text:
    Wiltz v. Pazzalia
    C.P. of Lackawanna County,
    no. 00-CV-4583.

      David Faullk, for plaintiffs.

      Robert Buttner, for defendant.
    October 22, 2004
   MINORA, J,

INTRODUCTION

This matter comes before the court by way of preliminary objections filed by the defendant, Richard Pazzalia, to the plaintiffs’ complaint. This action arises out of a property line dispute between the parties whereby the plaintiffs instituted actions alleging trespass, ejectment and intentional infliction of emotional distress. The allegations alleged in the complaint are as follows:

STATEMENT OF THE CASE

Plaintiffs allege that at all times they were the sole owners of real estate located at 1375 Winton Road, Jessup, Pennsylvania. Plaintiffs provided proof of title by attaching incomplete deeds to their complaint. In April of 2003, allegedly the defendant, an adjacent property owner, attempted to appropriate portions of the plaintiffs’ property by improperly and mistakenly placing property line markers on the plaintiffs’ property. At that time, the plaintiffs did inform the defendant that placement of said markers intruded upon their property rights. Prior to the defendant’s physical entry upon the subject property, the defendant notified the plaintiffs of his intent to enter the lands by way of a letter dated April 25, 2003. The letter supposedly provided the plaintiffs notice that the defendant planned to enter upon subject lands 30 days from the date of the letter. Ten days later, on May 5, 2003, the defendant did enter upon the lands of the plaintiffs. The activities in which the defendant engaged upon the property included: driving an earth-moving machine onto plaintiffs’ property; removing soil and moving portions of soil and/or boulders and placing them upon areas of land the plaintiffs used for parking and basketball; leaving holes on plaintiffs’ property causing “potential problems with erosion” and “affecting ground water runoff”; leaving huge holes which will require a retaining wall; knocking over a cherry tree; forcing plaintiffs to remove a fence upon their property; blocking an access road circling the property; leaving boulders on plaintiffs’ property causing the cement to sink; hitting plaintiffs’ truck which was parked on plaintiffs’ property and causing $500 in damages.

The plaintiffs commenced this action by filing a complaint on November 17, 2003. The plaintiffs’ complaint states a claim in trespass whereby the defendant had actual knowledge that he was committing a trespass upon the plaintiffs’ property, he persisted in entering and engaging in activities upon the plaintiffs’ lands and through his alleged intentional, unlawful, reckless, negligent, careless, trespassing conduct he caused damages to the plaintiffs and their property.

The complaint further alleges an action in ejectment asserting the plaintiffs are the sole property owners of said real property located at 1375 Winton Road, Jessup, PA, and that they acquired title by deed. Plaintiffs attached incomplete copies of said deeds to the complaint as exhibits “A” and “B.” These merely referred to the location of the land rather than providing a specific description thereof. Additionally, the plaintiffs’ and defendant’s properties are adjacent whereby they share a common boundary line. Moreover, the complaint avers that the defendant has maintained exercise and continued to exercise exclusive possession and control over portions of the plaintiffs’ property along and adjacent to the common property line as well as a continuing trespass. The complaint alleges that the defendant’s activities have deprived the plaintiffs from the use and enjoyment of their property as well as further damages.

The complaint asserts a cause of action for intentional infliction of emotional distress whereby the plaintiffs contend that the defendant’s entry upon the plaintiffs’ lands within 10 days of the letter that was sent provided them no advance notice. Plaintiffs further allege that when they confronted the defendant about his entry, he acted in a rude and malicious manner which included threatening to tear down a fence, making rude statements, striking the plaintiffs’ truck and tearing down a cherry tree, knowing that such behavior would cause a great upset. The complaint further states that the plaintiffs at all times during the course of the defendant’s conduct told him that he was not in possession of the land and to cease his course of conduct which the defendant allegedly refused to do.

On December 11, 2003, the defendant, Richard Pazzalia, filed preliminary objections to the plaintiffs’ complaint which will be discussed in further detail below as well as a brief in support of the preliminary objections. On December 30,2003, the plaintiffs replied to the defendant’s preliminary objections by filing a response and a supportive brief.

The undersigned heard oral argument on June 28,2004, thus rendering the matter ripe for disposition.

Each issue and preliminary objection will be addressed below.

ISSUES

(1) Should Count I of the plaintiffs’ complaint be dismissed pursuant to Pa.R.C.P. 1028(a)(4) since it allegedly fails to state a claim upon which relief may be granted?

(2) Should Count II of the plaintiffs’ complaint be dismissed pursuant to Pa.R.C.P. 1028(a)(4) since it allegedly fails to state a claim upon which relief can be granted and it is in contravention with Pa.R.C.P. 1054(a) and (b)?

(3) Should Count III of the plaintiffs’ complaint be dismissed pursuant to Pa.R.C.P. 1028(a)(4) since it allegedly fails to state a claim upon which relief can be granted?

(4) Should Count II of the plaintiffs’ complaint be stricken pursuant to 1020(b) as it allegedly fails to conform to the law?

(5) Should paragraphs 11, 15(a)-(g), 19, 20, 24, 36 and 47, and any other paragraph that seeks recovery for monetary damages, be stricken pursuant to 1019(f) for failure to specifically aver a time, place and items of special damage?

(6) Should Counts I through III of the plaintiffs’ complaint be stricken pursuant to Pa.R.C.P. 1019(a) because all counts purportedly fail to conform to the law and all averments allegedly are devoid of material fact, speculative and mere conclusions of law?

(7) Should Counts I and III of the plaintiffs’ complaint be stricken for failure to conform to the law since they allegedly do not arise from the defendant’s possession of the land and are in violation of Pa.R.C.P. 1055?

(8) Should the plaintiffs’ complaint be dismissed pursuant to Pa.R.C.P. 1028(a)(4) since it allegedly fails to state a claim upon which relief can be granted?

DISCUSSION

Legal Standard for a Demurrer

A number of the defendant’s objections are in the nature of a demurrer as to the claims in Count I, II and III of the complaint, individually, and the claims in Counts I though III inclusive of the complaint. Before a determination can be made whether the preliminary objections in the form of demurrers will be sustained, a brief overview of the legal standard for a demurrer pursuant to Pa.R.C.P. 1028(a)(2) is necessary.

As previously noted by the Superior Court of Pennsylvania, all material facts pleaded in the complaint, as well as all inferences reasonably deducible from those facts, are deemed admitted. Wilkinson v. The Housing Authority of the County of Cumberland, 854 A.2d 533 (Pa. Super. 2004); Theodore v. Delaware Valley School District, 575 Pa. 321, 333, 836 A.2d 76, 83 (2003). The demurrer may be granted only where, on application of this standard, it is apparent that plaintiff is not entitled to relief as a matter of law. Id. at 536. If doubt should arise as to whether the demurrer is proper, the demurrer should be overruled. Id. The question presented by a demurrer is whether, on the facts averred, the law states with certainty that no recovery is possible. Sclabassi v. Nationwide Mutual Fire Insurance Co., 789 A.2d 699 (Pa. Super. 2001). Furthermore, it must be determined if the complaint sufficiently states a claim for relief under any theory of law. Mistick Inc. v. Northwestern National Casualty Co., 806 A.2d 39, 42 (Pa. Super. 2002), citing Ham v. Sulek, 422 Pa. Super. 615, 623, 620 A.2d 5, 8 (1993). The court is not to consider conclusions of law, opinions or argumentative allegations. Sexton v. PNC Bank, 792 A.2d 602 (Pa. Super. 2002). Rather, the court’s review for preliminary objection purposes is limited to the contents of the complaint. In re Adoption of S.P.T., 783 A.2d 779 (Pa. Super. 2001). “Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief.” Hykes v. Hughes, 835 A.2d 382, 383 (Pa. Super. 2003).

When a defendant avers that a complaint fails to state a cause of action upon which relief may be granted, he must provide the court with specific grounds as to why the complaint in fact fails to state a claim upon which relief may be granted. Flynn Company v. Peerless Door & Glass Inc., 2002 WL 1018937, 2 (Pa.Com.Pl.); see also, Stewart v. Pennsylvania Board of Probation and Parole, 714 A.2d 502, 504 (Pa. Commw. 1998). “All preliminary objections... shall state specifically the grounds relied upon . . . .” Pa.R.C.P. 1028(b); see also, Flynn, supra; DelConte v. Stefonick, 268 Pa. Super. 572, 577 n.2, 408 A.2d 1151, 1153 n.2 (1979).

With this standard in place, we next will consider each issue as presented to this court by way of the defendant’s preliminary objections.

In considering the defendant’s request to dismiss Count I, the action in trespass, this objection must be overruled on two grounds. The defendant failed to establish the grounds he relied upon, on which his objection to Count I is based. It has been held that a respondent who neglects to brief issues raised in preliminary objections waives the right to have those issues considered. Flynn, supra, citing Stewart v. Pennsylvania Board of Probation and Parole, 714 A.2d 502, 504 (Pa. Commw. 1998). Furthermore, Count I of the plaintiffs’ complaint does in fact set forth facts which, if proven, would justify relief to the complaining party in trespass whereby the defendant entered upon the lands of the plaintiffs by several means with the intent to enter and engage in activities thereon. The means of trespass include driving earth moving machinery upon the subject lands, removing soil and leaving holes on the land, placing boulders upon said land and interfering with several objects upon the subject parcel. Since there is ample evidence within the complaint upon which a jury might find that the plaintiffs are entitled to relief as a matter of law for trespass, this court must decline the defendant’s demurrer to Count I.

The defendant’s next preliminary objection in the nature of a demurrer requests that this court dismiss Count II, the action in ejectment, for it is in contravention with Pa.R.C.P. 1054(a) and (b) and fails to state a claim upon which relief can be granted. In an action in ejectment the complaint must allege adequate facts to establish a “good cause of action.” Wolfe v. Porter, 405 Pa. Super. 385, 387, 592 A.2d 716, 717 (1991). In Count II of the complaint, the defendant is alleged to have breached the common boundary line between the adjacent properties. In the defendant’s demurrer to Count II, counsel contends that the plaintiffs’ complaint fails to describe with any specificity what portion of their property has been breached and over which the defendant exercises possession. The complaint contains incomplete deeds, attached as exhibits, as a reference of the location of the breached portion of land. No specific description of the breached portion of lands is provided.

What must be determined is whether the description provided by the plaintiffs is sufficient as a legal description in an action in ejectment. Pursuant to Pa.R.C.P. 1054(a), “the plaintiff shall describe the land in his complaint.” See also, Snook v. Eckley, 47 D.&C.2d 233 (1969). In Snook v Eckley, the plaintiff included in his complaint a legal description of three tracts of land, not all of which were in dispute and the words “house in the rear of said premises known as 221 South Main Street.” There the court determined that such a description was insufficient to describe the land in dispute. “The description of land in ejectment may not include land as to which no dispute is alleged. Where only a portion of plaintiffs’ land is in dispute, it is important that such portion be definitely fixed by the party claiming title.” Id. at 234-35. See also, Seitz v. Pennsylvania Railroad Co., 272 Pa. 84, 88, 116 A. 57, 59 (1922); Skillman v. Magill, 98 Pa. Super. 72, 76 (1929); Narzisi v. Allentown-Bethlehem Gas Co., 32 Northamp. 41, 43; 13 Standard Pa. Pract. §90, p. 486; 8 Anderson Pa.Civ. Pract. §2832. An adequate description for such cause of action includes metes and bounds, references to the adjoining parcel or landmarks. Id. at 235; see also, Flynn v. Rodkey, 192 Pa. Super. 56, 60, 159 A.2d 265, 267-68 (1960); Skillman v. Magill, supra; Goodrich-Amram § 1054(a)-1. Furthermore, it has been determined that a “landmark” is a monument or structure set upon the boundary line between two adjoining parcels to fix a boundary. Id.

Considering the above-stated criteria, the complaint in the case before the court has not met the necessary requirements of Pa.R.C.P. 1054(a). The plaintiffs merely attached incomplete copies of the deeds to the complaint which failed to mention the portion of land described which had been breached by the defendant. As noted above, a legal description in an action in ejectment may not include lands that are not in dispute. The plaintiffs clearly overlooked this restriction when counsel attached the legal description from two separate deeds to the complaint which described four entire parcels, none of which specifically describe the breached portion of plaintiffs’ lands.

The specific averments of Pa.R.C.P. 1054(b) require that a party “set forth in the complaint or response an abstract of title upon which that party relies at least from the common source of the adverse titles of the parties.” It is mandatory that the plaintiffs comply with Pa.R.C.P. 1054(b). Visconti v. Garcia, 3 D.&C.3d 367 (1977). The pleading party must set forth an abstract of title or allege a common source of title. Failure to comply with the above rule is a clear violation which will render the complaint ineffective. Id. at 369; Stewart v. Young, 5 Lyc. 101 (1965); Reinbold v. Fake, 11 Lebanon L. J. 177 (1966); Petchulis v. Cass Contracting Co., 63 Schuyl. 8 (1967); Mullen v. Cooley, 36 Fayette 74 (1974). In the instant action, the plaintiff failed to provide an abstract of title in the complaint. The only items provided in the complaint that even resemble an abstract of title are the incomplete copies of plaintiffs’ deeds to their parcels, which only provide where the plaintiffs, as grantees, obtained their interest. As a result of this deficiency, it can be readily determined that the plaintiffs failed to comply with Pa.R.C.P. 1054(b) and therefore failed to state a claim upon which relief can be granted. Given the above analysis, the defendant’s preliminary objection in the nature of a demurrer to Count II will be sustained and Count II must be amended by attaching proper completed deeds and an abstract of common title to the disputed portions of the common boundaiy. This must be done within 30 days of the date of this order or Count II will be dismissed.

The defendant’s fourth preliminary objection is also in the nature of a demurrer as to Count III of the complaint, whereby the plaintiffs alleged a cause of action for “intentional infliction of emotional distress.” Pennsylvania has adopted the position of section 46 of the Restatement (Second) of Torts in reviewing claims of intentional infliction of emotional distress. Section 46, outrageous conduct causing severe emotional distress subsection one provides “[o]ne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and, if bodily harm to the other results from it, for such bodily harm.” Section 46 Restatement (Second) of Torts. For a plaintiff to prevail he must show that the defendant’s actions were intentional, outrageous and that medically documented physical symptoms were produced on account of the emotional distress. Richette v. Philadelphia Magazine, 1996 WL 756953 (Pa.Com.Pl.); Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 43, 633 A.2d 605, 608 (1993). Additionally, “[t]he paucity of cases which have found a sufficient basis for an IIED claim have presented the most extreme instances of exceedingly egregious conduct.” Judge v. Donegal Mutual In surance Co., (Pa. Commw. Dec. 5, 2003), available at http://www.lackawannabar.com.htm. In the instant action, the plaintiffs present insufficient evidence to establish any “outrageous” conduct on the part of the defendant. At best, they have indicated that the defendant’s activities rise to the level of intentional, annoying or obnoxious, but not outrageous. Further, there is a total absence of severe emotional distress; no physical symptoms evidenced by medical documentation have been produced.

Pursuant to section 46 subsection (2) of the Restatement (Second) of Torts, outrageous conduct causing severe emotional distress is present: “[w]here such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a family member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm.”

The activities that the defendant engaged in involved the physical invasion and appropriation of property. The defendant did not direct his conduct at a third person or any person for that matter, only real and personal property of the plaintiffs. The appropriation of land or personalty of another does not involve conduct directed toward a third person, nor does it rise to the level of outrageous conduct that is required for relief under Restatement (Second) of Torts §46. Therefore the facts before the court present no basis for relief in favor of the plaintiffs. The defendant’s demurrer to Count III will be sustained and the action for intentional infliction of emotional distress will be dismissed from the complaint.

The defendant’s preliminary objection in the form of a demurrer as to the entire complaint must be overruled since the allegations in Count I provide sufficient evidence which may warrant relief as a matter of law in trespass. The defendant has presented several motions to strike as alternative objections to the plaintiffs’ complaint. The motions to strike as to Counts II and III are now moot since this court has sustained the preliminary objections in the nature of demurrer for said counts. As to Count I, a brief discussion is provided below as to the remaining motions to strike.

Legal Standard for Motion to Strike

Pursuant to Pa.R.C.P. 1028(a)(3) a party may file a preliminary objection for “insufficient specificity in a pleading.” Additionally, Pa.R.C.P. 1019(a) provides that all material facts on which a cause of action or defense are based shall be sustained in a concise and summary form. Yacoub v. Lehigh Valley Medical Associates, 805 A.2d 579 (Pa. Super. 2002). To determine if a paragraph contains the appropriate specificity, the court looks to both the paragraph at issue and the paragraph at issue in the context of the complaint. Id at 588. Yet, it is not necessary that the pleader present evidence which can be developed through discovery. Local No. 163, International Union v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965). See also, Com. of PA v. Schlitter, 104 Lacka. Jur. 112, 115-16 (2003).

In the case at bar, the paragraphs of Count I of the complaint alleging monetary damages do meet the requirements of Pa.R.C.P. 1019(a) as set forth above. Additionally, Count I in its entirety also meets the criterion stating material facts of the cause of action in a concise and summary form. Therefore, the defendant’s motions to strike pursuant to Pa.R.C.P. 1019(a) must be overruled.

The defendant also filed a motion to strike all counts based upon Pa.R.C.P. 1055, which provides that a “plaintiff may state in the complaint any cause of action for rents, profits or any other damages which arise from the defendant’s possession ofthe land.” Pa.R.C.P. 1055. The defendant contends that he is not in possession of the land and therefore the complaint must be stricken. Yet, Count I of the complaint does allege sufficient facts to provide relief in trespass. Furthermore, the language of Pa.R.C.P. 1055 has been interpreted to include injury and damages to land caused by another’s trespass. Sheehan v. Baldino, 5 D.&C.2d 745 (Delaware Cty. 1956). Therefore the motion to strike the remaining count, Count I, is overruled. An appropriate order follows.

ORDER

And now, to wit, October 22, 2004, upon consideration of defendant’s preliminary objections and the verbal and written arguments of counsel, and in accordance with the preceding memorandum, it is hereby ordered and decreed that the defendant’s preliminary objections be granted in part and denied in part.

(1) The defendant’s preliminary objection concerning Counts II for failure to state a claim upon which relief can be granted is sustained and Count II must be amended by attaching proper completed deeds and an abstract of common title to the portion of the common boundary. This must be done within 30 days of this order or Count II will be dismissed.

(2) The defendant’s preliminary objection concerning Count III for failure to state a claim upon which relief can be granted is granted.

(3) The defendant’s preliminary objections concerning Count I and the complaint as a whole for failure to state a claim upon which relief may be granted are denied.

(4) The defendant’s preliminary objection concerning recovery in the form of monetary damages is denied.


author: GENTILE, Member,

text:
    Office of Disciplinary Counsel v. Hickey

      Disciplinary Board Docket no. 31 D.B. 2003.
    August 25, 2004
   GENTILE, Member,

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

I. HISTORY OF PROCEEDINGS

On April 22,2003, Office of Disciplinary Counsel filed a petition for discipline against respondent, James A. Hickey, charging him with violations of the Pennsylvania Rules of Disciplinary Enforcement arising out of his conviction for resisting arrest or other law enforcement, and disorderly conduct.

A disciplinary hearing was held on August 29, 2003, before Hearing Committee 4.12 comprised of Chair Nancy Jean Lamont, Esquire, and members Michael J. Pawk, Esquire, and James Gerard Gordon, Esquire. Respondent represented himself at the hearing.

The Hearing Committee filed a report on May 20, 2004, recommending that respondent be suspended for a period of one year and one day.

No briefs on exceptions were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of July 17, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, James A. Hickey, was bom in 1942 and was admitted to practice law in the Commonwealth in 1972. His attorney registration address is Suite 1,1149 Liberty Street, Franklin, PA 16323. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(3) Respondent received an informal admonition in July 2003 for failure to provide a written fee agreement to his client, neglect of the client’s matter, and failure to communicate with the client.

(4) In the Court of Common Pleas of Washington County, Pennsylvania, at criminal case no. 2069 of2001, respondent was charged with, inter alia, one count of resisting arrest or other law enforcement in violation of 18 Pa.C.S. §5104, one count of disorderly conduct in violation of 18 Pa.C.S. §5503, and summary traffic violations.

(5) The incident involved a traffic stop for a broken headlight. Respondent was driving another person’s vehicle with a broken light at night, was unaware of the deficient condition of the vehicle, and was followed by the police officer to his residence.

(6) Despite the fact that the police officer told respondent not to reach into the vehicle to get documents from the glove compartment and after the police officer had drawn his gun, respondent reached into the vehicle to get a cell phone. In resisting arrest, respondent’s glasses were broken.

(7) Respondent had previously sued the police officer involved in the incident and a professional animus existed between respondent and the officer.

(8) A the time of the incident respondent was under stress due to a move, was taking medication for back pain and depression, and was on inactive status due to a spinal injury.

(9) On September 10, 2002, following a jury trial, a verdict was entered finding respondent guilty of the above counts.

(10) On November 1, 2002, President Judge Thomas D. Gladden sentenced respondent to serve a concurrent term of probation of 18 months on the charges and attend and participate in an anger management program. He was further sentenced to costs of prosecution and fines.

(11) Respondent did not notify the Office of Executive Director and Secretary of the Disciplinary Board of his conviction.

(12) On August 5,2003, respondent was found guilty of disorderly conduct in connection with an incident occurring at a Wal-Mart in Venango County, Pennsylvania.

(13) Respondent’s subsequent summary conviction of disorderly conduct involved his representation of a client.

(14) At the time of the disciplinary hearing, respondent had not completed his sentence, but was still making monthly payment on the costs and, despite the passage of 10 months since his sentencing, had not begun anger management classes.

III. CONCLUSIONS OF LAW

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

(1) Respondent’s conviction of resisting arrest and disorderly conduct constitutes a per se ground for discipline pursuant to Pa.R.D.E. 203(b)(1).

(2) Respondent failed to notify the Executive Director and Secretary of the Disciplinary Board of his conviction of a serious crime pursuant to Pa.RD.E. 214(a).

IV. DISCUSSION

This matter is before the board on a petition for discipline charging respondent with violation of the Rules of Disciplinary Enforcement arising out of his conviction for the serious crimes of resisting arrest and disorderly conduct. Respondent was involved in an incident with a police officer, wherein the officer stopped him for driving with a broken headlight. Respondent was told by the officer not to reach into his glove compartment but did so anyway to get his cell phone. An altercation ensued and respondent’s glasses were broken.

As with all disciplinary matters predicated on a criminal conviction, the sole issue to be resolved is the extent of discipline to be imposed on respondent. Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982). Consideration is to be given to any aggravating and mitigating factors. Office of Disciplinary Counsel v. Valentino, 556 Pa. 609, 730 A.2d 479 (1999).

The Hearing Committee recommended a suspension of one year and one day based on the nature of the criminal conviction, respondent’s failure to report his conviction, respondent’s prior discipline of an informal admonition, and an aggravating circumstance whereby respondent was found guilty of disorderly conduct in connection with an incident at a Wal-Mart in Venango County. The committee further found that respondent had not completed his criminal sentence at the time of the disciplinary hearing, but was still making monthly payments on his costs and, more seriously, had not begun anger management classes despite the passage of 10 months since his sentencing.

The committee considered mitigating circumstances, among other things, that respondent and the police officer involved in the incident had a personal animus due to the fact that respondent had sued the officer for violation of the civil rights of a client, and respondent was recovering from spinal surgery and was on medication for back pain and depression at the time of the incident.

The board is not persuaded by the facts of record that a suspension of one year and one day is appropriate. Respondent’s crime, while serious, did not involve clients or the legal profession. No harm to another citizen occurred. However, this is not a case for private discipline. The record shows that respondent was involved in another incident of disorderly conduct shortly before the disciplinary hearing on the instant matter. While respondent insisted to the Hearing Committee that his actions with the police officer were a very rare event, his subsequent behavior suggests a contrary conclusion. Equally disturbing is respondent’s failure to begin his anger management training, even though many months have passed since his sentence was handed down. Respondent has a prior record of discipline as well.

Balancing the totality of the facts, the board believes that a suspension of six months is appropriate to address the seriousness of respondent’s misconduct. This recommendation is made with due consideration given to the sanctions imposed in prior cases on attorneys who were involved in similar criminal circumstances. In the matter of In re Anonymous No. 155 D.B. 1997, no. 521 disciplinary docket no. 3 (Pa. July 15, 1999), an attorney who assaulted another attorney during a trial and threatened the judge received a six-month suspension. In the matter of In re Anonymous No. 46 D.B. 84, 39 D.&C.3d 234 (1986), an attorney was suspended for three months and one day as a result of a conviction of resisting arrest. In the matter of In re Anonymous 17 D.B. 1996, 182 disciplinary docket no. 3 (Pa. April 29, 2002), an attorney was suspended for three months as a result of his conviction for criminal trespass, indirect criminal contempt and simple assault on a former girlfriend.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, James A. Hickey, be suspended from the practice of law for a period of six months subject to the following condition:

Provide proof that he has attended and participated in an anger management program as directed by the Washington County Court of Common Pleas on November 1, 2002.

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

Board Member Suh dissents and would recommend public censure with conditions.

ORDER

And now, December 13, 2004, upon consideration of the report and recommendations of the Disciplinary Board dated August 25, 2004, it is hereby ordered that James A. Hickey be and he is suspended from the bar of this Commonwealth for a period of six months, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

      . Respondent is currently on active status since January 28,2003.