author: MOTTO, J.,

text:
    Myers v. Kim

      C.P. of Lawrence County,
    no. 10587 of 1999 C.A.

      Gary F. Lynch and Pamela J. Miller, for plaintiff.

      Edward Lemarie Jr. and Paula A. Koczan, for defendant.
    March 16, 2001
   MOTTO, J.,

Before the court for disposition is the motion for summary judgment filed on behalf of the defendant, Uh Gwon Kim M.D. Dr. Kim contends that a final adjudication of the State Board of Medicine which dismissed charges brought against him by the Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs bars the plaintiff’s instant lawsuit on principles of res judicata or collateral estoppel where both proceedings are based upon allegations that Dr. Kim improperly touched the plaintiff during the course of a medical examination.

I. HISTORY OF THE CASE

On May 30, 1997, the plaintiff appeared at the office of Dr. Kim for a medical examination in relation to her claim for Social Security disability benefits. Subsequent to the examination, plaintiff filed a complaint with the Pennsylvania State Board of Medicine alleging that Dr. Kim touched her in an inappropriate manner during the course of the physical examination. Plaintiff’s complaint to the Pennsylvania State Board of Medicine resulted in proceedings brought by the Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs against Dr. Kim. The charges against Dr. Kim were brought pursuant to section 41(a) of the Medical Practice Act, 63 P.S. §422.41(a) which provides in pertinent part as follows:

“Being guilty of immoral or unprofessional conduct. Unprofessional conduct shall include departure from or failing to conform to an ethical or quality standard of the profession. In proceedings based on this paragraph, actual injury to a patient need not be established.
“(i) The ethical standards of the profession are those ethical tenants which are embraced by the professionals in this Commonwealth.
“(ii) A practitioner departs from or fails to conform to a quality standard of the profession when the practitioner provides a medical service at a level beneath the accepted standard of care. The board may promulgate regulations which define the accepted standard of care. In the event that board has not promulgated an applicable regulation, the accepted standard of care for a practitioner is that which would normally be exercised by the average professional of the same kind in this Commonwealth under circumstances including locality and whether the practitioner is or reports to be a specialist in the area.”

A hearing was held before a hearing examiner on or about June 30, 1999. At the hearing, the plaintiff testified in support of her allegations that Dr. Kim had touched her in an improper manner. The State Board of Medicine rendered a decision on or about June 27, 2000 which dismissed the proceedings before the Board of Medicine against Dr. Kim.

Plaintiff filed her complaint in the instant case against Dr. Kim on or about July 16, 1997 based upon the same allegations of improper touching of her by Dr. Kim at the examination of May 30, 1997. Plaintiff’s complaint raises three separate causes of action; to wit, professional negligence, intentional infliction of emotional distress and assault and battery.

Subsequent to the decision of the State Board of Medicine, Dr. Kim filed a motion to amend answer in the instant case to add the offense of res judicata, which defense is based upon the aforesaid decision of the State Board of Medicine. Leave to amend having been granted to the defendant by the court, the amended answer and new matter was filed with a reply thereto filed by the plaintiff. The instant motion for summary judgment followed.

II. DISCUSSION

In considering a motion for summary judgment, the court must determine whether the moving party has established that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. In making this determination, the court must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences. Kingston Coal Co. v. Felton Mining Co., 456 Pa. Super. 270, 690 A.2d 284 (1997). A summary judgment may properly be entered in favor of defendant where the plaintiff’s cause of action is barred by principles of res judicata or collateral estoppel. Sterling v. Fineman, 428 Pa. Super. 233, 630 A.2d 1224 (1993), appeal denied, 538 Pa. 674, 649 A.2d 675 (1994).

The doctrine of “res judicata” or “claim preclusion” by which a former adjudication bars a later action on all or part of a claim which was the subject of the first action is designed to prevent the relitigation by the same parties of the same claim or issues. Balent v. City of Wilkes-Barre, 542 Pa. 555, 669 A.2d 309 (1995); Botsford v. Dugan, 758 A.2d 667 (Pa. Super. 2000), reargument denied, allocatur denied, 564 Pa. 722, 766 A.2d 1242 (2001).

Where there has been previously rendered a final judgment on the merits by a court of competent jurisdiction, the doctrine of res judicata will bar any future suit on the same cause of action between the same parties. Invocation of the doctrine of res judicata requires that both the former and latter suits possess the following common elements:

“(1) Identity [in] the thing sued upon[;]
“(2) Identity [in] the cause of action[;]
“(3) Identity of [persons and] parties to the action];]
“(4) Identity of the... capacity of the parties [suing or being sued].” Kean v. Forman, 752 A.2d 906, 909 (Pa. Super. 2000); Stevens Painton Corp. v. First State Insurance Co., 746 A.2d 649, 654 (Pa. Super. 2000). (emphasis added)

The doctrine of collateral estoppel differs from the doctrine of res judicata in that the doctrine of res judi-cata provides that when a final judgment on the merits exist, a future suit between the parties on the same cause of action is precluded; whereas, collateral estoppel acts to foreclose litigation in a later action on issues of law or fact that were actually litigated and necessary to a previous final judgment. Maranc v. W.C.A.B. (Bienenfeld), 751 A.2d 1196 (Pa. Commw. 2000).

The doctrine of collateral estoppel, or issue preclusion, applies where the following four prongs are met: (1) issue decided in prior action is identical to one presented in later action; (2) prior action resulted in final judgment on merit; (3) party against whom collateral estoppel is asserted was party to prior action or is in privity with party to prior action; and (4) party against whom collateral estoppel is asserted had full and fair opportunity to litigate issue in prior action. See Rue v. K-Mart Corp., 552 Pa. 13, 17, 713 A.2d 82, 84 (1998); Shaffer v. Smith, 543 Pa. 526, 673 A.2d 872 (1996); Balent v. City of Wilkes-Barre, supra.

In the instant case, Dr. Kim has asserted alternative theories of res judicata and collateral estoppel as baring plaintiff’s complaint. Neither theory can be applied in this case unless the court finds that the plaintiff was a party, or in privity to a party, in the prior proceeding before the State Board of Medicine. Although res judicata requires identity of parties, mutuality of parties is not required for collateral estoppel to apply under Pennsylvania law; the only requirement is that the party against whom collateral estoppel is asserted be a party to the prior adjudication. Wikowski v. Welch, 173 F.3d 192 (3d Cir. 1999). In the case of either res judicata or collateral estoppel, the requirement of either identity of parties or party against whom the issue is asserted is met if either of the doctrines are asserted against a party to the present litigation who, although a nonparty in the prior litigation, may be found to have been in privity with the party to the prior litigation, such as in cases where the party in the present case was represented in the prior litigation by a party who acted in a representative capacity to the party in the present litigation. First Options of Chicago Inc. v. Kaplan, 913 F. Supp. 377 (E.D. Pa. 1996); Moldovan v. Great Atlantic & Pacific Tea Co. Inc., 790 F.2d 894, cert. denied, 108 S.Ct. 1074, 485 U.S. 904, 99 L.Ed.2d. 233.

In the instant case, the plaintiff herein is Janice Myers. In the prior litigation before the State Board of Medicine, the plaintiff, or complaining party, was the Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs. Janice Myers was not a party to the action before the Board of Medicine, but was called as a witness in that case by the Commonwealth. The plaintiff herein did not have an independent right or ability to present evidence in support of her allegations of improper touching by Dr. Kim. The conduct of the litigation in the prior proceeding before the State Board of Medicine was controlled exclusively by the Bureau of Professional and Occupational Affairs. Accordingly, Dr. Kim can now assert res judicata or collateral estoppel only if he can demonstrate that the plaintiff herein, Janice Myers, must be deemed to have been in privity with the Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs in the prior proceeding before the Board of Medicine.

An in-depth discussion of the issue of privity is discussed in the case of First Options of Chicago Inc. v. Kaplan, 913 F. Supp. 377 (E.D. Pa. 1996), interpreting federal principles of claim preclusion. The following appears in First Options at p. 383-84.

“The term privy ‘is merely a word used to say that the relationship between one who is a party on the record and another is close enough to include the other within the res judicata.’ United States Steel Corp., 921 F.2d at 493 (citing Bruszewski v. United States, 181 F.2d 419, 423 (3d Cir.), cert. denied, 340 U.S. 865, 71 S.Ct. 87, 95 L.Ed. 632 (1950)); Phillips v. Kidder, Peabody & Co., 750 F. Supp. 603, 607 (1990) (‘privity is a legal determination for the trial court as to whether the relationship between the parties is sufficiently close to support preclusion’). Courts have typically found privity to exist in three circumstances: (1) where the nonparty has succeeded to, or share a concurrent right to the party’s interest in, property, (2) where the nonparty controlled the prior litigation, and (3) where the party adequately represented the nonparty’s interest in the prior proceeding. See e.g., Latham v. Wells Fargo Bank N.A., 896 F.2d 979, 983 (5th Cir. 1990); 1B Moore’s Federal Practice, section 0.411(1), at III.215. ...

“The doctrine of virtual or adequate representation has been adopted by many courts. Martin v. Wilkes, 490 U.S. 755, 761 n.2, 109 S.Ct. 2180, 2184 n.2, 104 L.Ed.2d 835 (1989) (a nonparty may be bound if his interests are ‘adequately represented by someone with the same interest who is a party’); Chase Manhattan Bank N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d Cir. 1995) (‘Res judicata may be asserted when the precluded party’s interest has been adequately represented in a previous lawsuit.’); Matter of L & S Indus. Inc., 989 F.2d 929, 933 (7th Cir. 1993) (‘A person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative.’); In re Medomak Canning, 922 F.2d 895, 901 (1st Cir. 1990) (‘Privity may be established by identification of interests, even where representation of those interests is not authorized.’).. .

“The Third Circuit has long recognized that privity is a legal conclusion; the privity enquiry should be flexible enough to acknowledge the realities of parties’ relationships. Bruszewski, 181 F2d at 423 (noting that the test for privity is whether there is a sufficiently close relationship between the party to the prior litigation and the nonparty against whom the prior judgment is being used).”

Although the First Options case above cited and quoted interpreted federal law, the court noted in its opinion at footnote 8, page 383 that state law requirements for res judicata and privity are not inconsistent with federal law as Balent v. Wilkes-Barre, 542 Pa. 555, 563, 669 A.2d 309, 313 (1995), held that res judicata bars a later action on all or part of the claim which was the subject of the first action and that any final judgment on the merits by a court of competent jurisdiction precludes any future suit between the parties or their privies. First Options also cited Ammon v. McCloskey, 440 Pa. Super. 251, 261, 655 A.2d 549, 554 (1995), for the proposition that privity is defined as mutual or successive relationships to the same right of property, or such identification of interests of one person with another as to represent the same legal right, quoting Black’s Law Dictionary (5th ed. 1979).

The court here finds that the plaintiff, Janice Myers, was not in privity with the Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs, in the prior litigation. The plaintiff herein had no ability to exercise control over the prior litigation. She had no ability to determine which witnesses should be called nor make any decisions relative to the course of litigation. Although both cases can be said to involve the same factual allegations, to wit, the allegations of improper touching of the plaintiff herein by Dr. Kim, the Commonwealth and the plaintiff herein have separate interests. The interest of the State Board of Medicine is to oversee those engaging in the medical profession within the Commonwealth and to determine the competency and fitness of an applicant to practice medicine in the Commonwealth. The authority of the Commonwealth is to regulate individuals engaging in the medical profession, which is a valid exercise of the police power of the Commonwealth. See Tandon v. State Board of Medicine, 705 A.2d 1338, 1348 (Pa. Commw. 1997). The interest of the plaintiff herein, as an individual, is to recover for personal injury resulting from the alleged improper touching by Dr. Kim. Thus, the interest of the plaintiff in each case cannot be said to be aligned, even though based upon the same set of operative allegations.

In the case of State Farm Fire and Casualty Co. v. Christopher, 729 F. Supp. 446 (W.D. Pa. 1988), State Farm asserted that the defendant’s sexual molestation of three girls was intentional and thus excluded from coverage under a State Farm insurance policy. Defendant Christopher had been convicted in criminal court of the corruption of the morals of a minor, indecent assault and indecent exposure. State Farm asserted collateral estop-pel as to the issue of intentional conduct on the part of defendant Christopher because a jury found him guilty of the crimes. In the criminal case against defendant Christopher, the three girls involved in the sexual molestation had testified on the part of the Commonwealth. The injury to the minor girls arising out of the molestation was the subject matter of both the criminal case and a subsequent civil case brought on behalf of the minor girls. As to the claim of State Farm that collateral estop-pel should apply because the minor girls, who were plaintiffs in the civil action, should also be deemed to be parties in the criminal action, the court said that only defendant Christopher was a party in the criminal proceeding and that State Farm’s assertion that the girls were parties because they are witnesses is ludicrous. See State Farm Fire and Casualty Company v. Christopher, 729 F. Supp. 446, 449. The within case is factually similar. The plaintiff, Janice Myers, was a witness and victim in the prior proceeding before the State Board of Medicine. However, such circumstance does not make her a party to that action, nor privy to the party to that action.

Since the Commonwealth was not acting in a representative capacity relative to the plaintiff, Janice Myers, and since the Commonwealth controlled the prior litigation, here privity could only be found to exist if there was such an alignment of interests between the Commonwealth and the plaintiff herein that plaintiff must be held to be bound by the prior proceeding. The court finds that such alignment or identity of interest does not exist. The Commonwealth had no obligation to the plaintiff herein. The Commonwealth was not accountable to the plaintiff for its actions in proceeding before the State Medical Board. The Commonwealth had no legal interests nor procedural vehicle to acquire compensation for the plaintiff for personal injury allegedly caused by the actions of Dr. Kim. Other than appearing as a witness at the proceeding before the hearing examiner, the plaintiff herein had no relationship with the prior litigation. Furthermore, the plaintiff and the Commonwealth do not share a significant, close, non-litigation relationship of any kind. The plaintiff and the Commonwealth do not seek the same remedy in each proceeding. Since the interests of the Commonwealth and the plaintiff herein differ in terms of the objective sought to be obtained, it cannot be said that their interests parallel each other. It cannot be said that the plaintiff herein acquiesced in the representation of the Commonwealth as it had no control over the proceedings carried forth by the Commonwealth. Plaintiff’s only voluntary involvement with the proceedings before the State Board of Medicine was initially to report to the State Board of the allegation that Dr. Kim had improperly touched her during the course of an examination. Once she made that report, all further proceedings and litigation issues before the State Board of Medicine were determined by the Commonwealth.

Accordingly, for the reasons stated above, since the court has concluded that the plaintiff in the instant case was not a party before the prior proceedings before the State Board of Medicine nor in privity with the Commonwealth of Pennsylvania, Department of Professional and Occupational Affairs, the defendant cannot invoke the bar of res judicata and collateral estoppel.

Accordingly, the defendant’s motion for summary judgment must be denied.

ORDER

And now, March 16, 2001, in accordance with the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the defendant’s motion for summary judgment is denied.


source: Caselaw Access Project

author: BIESTER, S.J.,

license: Public Domain

text:
    Gallagher v. Il Sol Inc.

      C.P. of Bucks County,
    no. 96-000918-14-2.

      Joseph Chaiken, for plaintiff.

      Fred J. Silverman, for defendant.
    February 1, 2001
   BIESTER, S.J.,

Before this court for consideration is plaintiff’s petition for an award of delay damages pursuant to Pennsylvania Rule of Civil Procedure 238.

FACTS

Plaintiff initiated this negligence action by complaint filed on or about February 5, 1996 against defendants, Il Sol Inc. and Inn Management Corp. The complaint arises from an incident that occurred at defendant’s restaurant on January 13, 1995 wherein plaintiff was struck in the head by a chair which was being carried by a busboy. On May 5, 2000, a jury returned a verdict in favor of the plaintiff in the amount of $425,000. Subsequently, on May 9, 2000 plaintiff filed the instant petition for delay damages. On May 26, 2000 defendant filed an answer opposing plaintiff’s petition for delay damages.

In the petition, plaintiff alleges that pursuant to Pa.R.C.P. 238 she is entitled to damages for delay since no settlement offers were made by the defendant following the institution of suit. Defendant objects contending that plaintiff failed to comply with the rules of discovery and that several periods of delay are attributable to plaintiff.

Delay damages are authorized by Pa.R.C.P. 238, 42 Pa.C.S. which provides, in relevant part:

“(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, in the decision of the court in a non-jury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. §7361, and shall become part of the verdict, decision or award.
“(2) Damages for delay shall be awarded for the period of time ...
“(ii) in an action commenced on or after August 1, 1989, from a date one year after the date original process was first served in the action up to the date of the award, verdict or decision.
“(3) Damages for delay shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus one percent, not compounded.
“(b) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,
“(1) after which the defendant has made a written offer of...
“(2) during which the plaintiff caused delay of the trial.”

The basic aim of Rule 238 is to alleviate delay in the disposition of cases and foster early settlement. Jistarri v. Fentress, 390 Pa. Super. 209, 214, 568 A.2d 618, 621 (1989). Under Rule 238, a plaintiff is entitled to delay damages unless the defendant opposes the motion. The defendant, who bears the burden of proof, has two bases upon which to oppose the motion: (1) the requisite offer has been made, and (2) the plaintiff was responsible for the specified periods of time during which the trial was delayed. See Pa.R.C.P. 238.

Not every procedural delay is relevant to the issue of delay damages, only such occurrences that actually cause delay of trial. Explanatory comment, Rule 238. See also, Kuchak v. Lancaster General Hospital, 377 Pa. Super. 288, 293, 547 A.2d 372, 375 (1988) (delays in discovery not chargeable unless it is demonstrated that plaintiff failed to take reasonable steps to prepare case). A trial court is not permitted to subtract any period of time where delay on the part of plaintiff has not contributed to the breakdown of the normal progress of the litigation. Tindal v. SEPTA, 385 Pa. Super. 94, 102-103, 560 A.2d 183, 187-88 (1989).

In this case, the action was commenced on February 5,1996 and the docket reflects that original process was served on defendant, Il Sol Inc. on March 26, 1996. According to Rule 238 (a)(2) (ii), delay damages would therefore begin to run on March 26, 1997, one year after original process was served.

A jury verdict was returned on May 5, 2000. The time period for calculating delay damages in this case, not taking into account any excluded periods of time, would be from March 26, 1997 to May 5, 2000. We note that the record is devoid of any written offer made by defendants to plaintiffs. Pa.R.C.P. 238(b)(1). Therefore, the only issue we must consider is whether any periods of delay should be attributed to plaintiff and excluded for the calculation of delay damages.

First, defendant contends on May 13, 1996, counsel for defendant served interrogatories and requests for production of documents on plaintiff’s counsel. Defendant alleges that after receiving no responses to this discovery, defendant was required to obtain a court order compelling responses. Defendant contends that plaintiff’s failure to comply with the rules of discovery impeded the discovery process and prevented defendant from being able to evaluate the case for settlement purposes.

Although defendant is factually correct in this assertion, the relevant time frame in assessing delay damages in this case is from March 26, 1997 to May 5, 2000. Defendant argues that the above delay must be charged to plaintiff even though delay damages did not begin to accrue until March 26, 1997. The basis of defendant’s contention is that if delays are not chargeable to plaintiff during this time period, plaintiff will have no incentive to cooperate in the discovery process during the first year of litigation.

Defendant’s argument, while novel, is unsupported by the record and Pennsylvania law. The explanatory comments to Rule 238 provide that natural delays in discovery do not effect the imposition of delay damages: “[f]ailure by the plaintiff to answer interrogatories within 30 days should not affect the award of damages for delay unless the trial was delayed as a result. Otherwise, the introduction of the fault concept and its attendant hearing would create a large new field of court hearings revolving around evidence of dilatory compliance with discovery procedures, the evidence of which would consist almost entirely of attorneys testifying against each other and could be years old before the hearing. It is felt that Rule 4019 provides a vehicle, although little used at present, which can timely dispose of delay due to discovery noncompliance regardless of whether or not it delays the trial.”

In the present case, defendant has not shown how the delay in receiving answers to discovery prejudiced defendant’s ability to engage in meaningful discovery or negotiations. Plaintiff was under court order to provide discovery answers by the end of September 1996. After that time, defendant had an additional six months in which to engage in farther discovery and, in fact, did so by deposing the plaintiff on October 8, 1996. Under these facts, we do not believe that plaintiff’s failure to answer discovery within 30 days during the first few months of litigation resulted in a delay of trial.

Second, defendant argues that plaintiff refused to provide timely responses to supplemental discovery which prejudiced defendant’s evaluation of the case and preparation for trial.

According to the record, on May 27, 1998, defendant served plaintiff supplemental requests for production of documents seeking the production of the tax returns for the years 1996 and 1997 and a prior vocational evaluation of plaintiff concerning a 1987 automobile accident. On July 15, 1998, plaintiff produced the tax returns, but did not supply the prior vocational evaluation of Dr. Jennings. Consequently, on August 11, 1998, defendant filed a motion to compel answers to the supplemental requests for production, which was ultimately withdrawn by defense counsel on October 5, 1998.

Additionally, on April 12, 1999, defendant served supplemental interrogatories on plaintiff that sought, inter alia, information concerning plaintiff’s alleged occupational disability. Thereafter, on May 28, 1999, defendant filed a motion to compel answers to interrogatories. On June 14, 1999, defendant received answers to plaintiff’s interrogatories.

Reviewing the record, we do not believe plaintiff should be penalized for failing to supply answers to defendant’s supplemental requests for production of documents and supplemental interrogatories within 30 days. Again, we repeat that a trial court should not impute periods of delay unless it is shown that a party failed to proceed diligently. Jistarri v. Fentress, 390 Pa. Super. 209, 214, 568 A.2d 618, 621 (1989). While the amendment to Rule 238 introduced the concept of fault as an element for consideration of delay damages, it is defendant’s burden to demonstrate that the alleged delay actually caused delay of the trial. In this instance, defendant cannot seriously maintain that plaintiff’s tardiness in answering supplemental discovery actually delayed the trial of this matter.

Third, defendant contends that two periods of time should be excluded from our calculation since these delays were caused by plaintiff’s refusal to cooperate in defense expert examinations.

According to defendant, on or about September 19, 1997, plaintiff provided defendant with a copy of a report of Philip Spergel Ed.D. dated September 5, 1997 concerning his psychological/vocational evaluation of plaintiff. After receiving this report, defense counsel sought to have plaintiff examined by their vocational expert, Donald E. Jennings Ed.D., but plaintiff refused to submit to the examination. On January 16, 1998, defendant filed a petition to compel plaintiff to submit to evaluation, which was ultimately granted by this court on March 30, 1998. On April 28, 1998, Dr. Jennings examined the plaintiff.

In addition, or about April 1, 1999, defendant sought to have plaintiff examined by Roy Lerman M.D., a physical medicine and rehabilitation specialist. On June 1, 1999, defendant filed a motion to compel physical examination. Following a hearing, on August 13, 1999, this court granted defendant’s motion and directed plaintiff to submit to a physical examination within 30 days. Dr. Lerman’s examination occurred on September 13, 1999.

For the same reasons as stated previously, we cannot conclude that plaintiff’s refusal to submit to the examinations of Dr. Spergel and Dr. Lerman caused an actual delay in the trial of this matter. According to the record, defendant continued to engage in discovery following these examinations, including the deposition of Rosella Gallagher, plaintiff’s mother. Ms. Gallagher’s deposition did not occur until after January of 2000. While there seems to be a reasonable question regarding plaintiff’s refusal to submit to these examinations, defendant admits that it could not have been ready for trial until a discovery deposition of Rosella Gallagher was completed. See defendant’s memorandum of law in opposition to plaintiff’s petition for delay damages p. 8.

Finally, defendant contends that plaintiff’s failure to cooperate in scheduling the deposition of plaintiff’s mother, Rosella Gallagher, caused a period of delay of 110 days.

Our review of the record discloses that on October 13, 1998, plaintiff’s counsel informed defendant that plaintiff would call Rosella Gallagher as a witness at trial. See petition of defendant, Il Sol Inc., for leave to take discovery deposition of Rosella Gallagher ¶3. Thereafter, on October 13, 1998, defendant’s counsel requested from plaintiff’s counsel dates of Rosella Gallagher’s availability for deposition. See id. ¶4. Following this initial correspondence, defense counsel did not again attempt to obtain the deposition of Rosella Gallagher, informally or by subpoena, until January 5, 2000, after plaintiff notified defendant of his intent to place the matter on the trial list. See id. ¶6.

Based on these facts, we cannot confidently conclude that the delay in scheduling this fact witness was the fault of plaintiff. Over one year elapsed between the date of defendant’s initial request for deposition and the date of his second request. During this period defendant could have attempted to obtain this deposition by subpoena, but simply did not. We decline to impute this delay in discovery to plaintiff since it resulted largely from defendant’s procrastination in obtaining the deposition of a potentially key witness.

Consistent with the foregoing analysis, delay damages will be calculated pursuant to Rule 238(3) which provides for a rate equal to the prime rate as listed in the first edition of the Wall Street Journal for each year:

Year Delay/365 x Award x Percent
1997 (280/365) .767 x 39,312.50
(425,000 x 9.25) = 30,152.69
1998 (365/365) 1.00 x 40,375.00
(425,000 x 9.50) = 40,375.00
1999 (166/365) 1.00 x 37,187.50
(425,000 x 8.75) = 37,187.50
2000 (126/365) .345 x 40,375.00
(425,000 x 9.5) = 13,937.66
Total $121,652.85

We conclude that defendant owes plaintiff a total of $121,652.85 in delay damages. Accordingly, we enter the following order:

ORDER

And now, February 1, 2001, upon consideration of plaintiff’s petition for delay damages, it is hereby ordered and decreed that damages for delay pursuant to Pa.R.C.R 238 are awarded to plaintiff/petitioner, Robin Gallagher, in the amount of $121,652.85.

      . Although there were originally two defendants in the complaint, the case proceeded to trial solely against defendant Il Sol Inc.


author: FREEDBERG, P.J.,

text:
    Cerino v. Kaduk

      C.P. of Northampton County,
    no. 1998-C-1835.

      Ralph J. Bellafatto, for plaintiffs.

      Stuart S. Smith, for defendants.

      November 13, 2000
   FREEDBERG, P.J.,

This matter is before the court on plaintiffs’ objections to defendants’ bill of costs and plaintiffs’ motion for sanctions. Defendants have responded by requesting that they be awarded attorney’s fees. A conference was held on July 14, 2000, and letter briefs were subsequently filed by both parties. For the reasons stated in the following opinion, plaintiffs’ objections will be granted and both requests for attorney’s fees will be denied.

BACKGROUND

This dispute arises from a jury trial before the Honorable Robert E. Simpson Jr., in June 2000. Prior to the trial, the parties entered into a high/low agreement. The trial resulted in a jury verdict for defendants on June 26, 2000. Defendants thereafter filed a bill of costs, setting forth a number of trial expenses that they seek to recover from plaintiffs. Plaintiffs object to the bill of costs and request sanctions against defendants for filing the bill of costs.

The high/low agreement is memorialized in two letters dated June 16, 2000, one from plaintiffs’ counsel to defendants’ counsel and one from defendants’ counsel to plaintiffs’ counsel, as well as a transcript of the agreement that was taken in chambers before Judge Simpson on June 19, 2000.

Plaintiffs’ letter, the contents of which are referred to as a “settlement proposal,” stated that plaintiffs “would be willing to enter into a high/low agreement, whereby [plaintiffs’] maximum award would be policy limits of $500,000, and a minimum award of $50,000, regardless of jury verdict.” Plaintiffs’ letter clarified this position by stating that “any verdict in excess of $500,000 would result in a policy limit settlement, any verdict of $50,000 or less, including a defense verdict, would result in a $50,000 settlement to [plaintiffs].” According to plaintiffs’ letter, any amount “between the two figures would result in a settlement in the actual amount of the jury’s award, subject only to the additional imposition of delay damages the court deems appropriate.” The letter further stated that “[b]oth sides would agree that no appeal would be taken.”

Defendants’ reply letter stated that it was a confirmation that “the parties have agreed to binding high/low figures for the trial of this matter.” The letter noted that the “guaranteed low figure is $50,000” and the “guaranteed high figure is $500,000.” Defendants’ letter clarified the agreement by stating that plaintiffs “will receive no less than $50,000” and “no more than $500,000, even if the jury verdict comes in for more, whether alone or including delay damages.” The letter stated that “[i]f a verdict comes in between these figures, [plaintiffs] will receive the amount of that award, minus a deduction for any comparative negligence assessed, plus delay damages but, again, not in excess of $500,000.” Defendants’ letter agreed that there would be no appeal of the jury verdict.

The high/low agreement was orally presented to Judge Simpson by plaintiffs’ attorney, who stated on the record that the parties had agreed that, “regardless of the verdict, including a defense verdict, [plaintiffs] will receive no less than $50,000 and no more than $500,000.” Plaintiffs’ attorney indicated that “delay damages and comparative negligence principles apply, but only up to the limits,” and that “[b]oth parties agree not to take an appeal.” Defendants’ attorney made no additional statements regarding the high/low agreement at this time. The agreement was later addressed during trial at a side-bar discussion held on June 21, 2000, during which plaintiffs’ attorney stated that the amounts had been amended so that the minimum was to be $100,000 and the maximum was to be $450,000. Defendants’ attorney made no additional statements.

Plaintiffs assert that the high/low agreement was “expressly intended to constitute a final and global resolution of this litigation” and request that defendants not be permitted to “change the minimum payment provisions.” It is plaintiffs’ position that the jury verdict merely determined the settlement amount to be paid to plaintiffs and that the term “minimum payment $100,000” does not mean “$100,000 less defense costs in the event of a defense verdict.” Plaintiffs submit that the defendants are “asking the court to add an additional term to this global settlement agreement in an attempt to partially deprive plaintiffs of the fruits of this contract.”

Defendants assert that costs “were not within the parties’ contemplation when the agreement was made and, therefore, are not part of the settlement.” Defendants note that the agreement does not address costs or “indicate that they may not be recovered by the verdict winner.” Defendants assert that they, “as the verdict winner, are [] entitled to recover [] costs.” Defendants submit that plaintiffs are attempting to “read a term into the agreement” and argue that where specific terms, such as delay damages, are addressed in the agreement, other terms, such as costs, “cannot thereafter be read into the agreement.” It is defendants’ position that the agreement placed a minimum and a maximum on the verdict and that “costs are a separate issue.”

A high/low agreement constitutes a settlement. See Power v. Tomarchio, 701 A.2d 1371 (Pa. Super. 1997) (holding that a high/low agreement is a settlement under Pa.R.C.P. 2039); see also, PMA Insurance Group v. W.C.A.B. (Kelley), 665 A.2d 538 (Pa. Commw. 1995) (holding that a high/low agreement is a “compromise settlement” under the Workers’ Compensation Act).

“It is well-established that ‘[t]he enforceability of settlement agreements is determined according to principles of contract law.’ ” McDonnell v. Ford Motor Company, 434 Pa. Super. 439, 445, 643 A.2d 1102, 1105 (1994) (quoting Century Inn Inc. v. Century Inn Realty Inc., 358 Pa. Super. 53, 58, 516 A.2d 765, 767 (1986)). “A basic tenet of contract law is that when the language of a contract is clear and unambiguous its meaning must be determined by an examination of the content of the contract itself.” Lobaugh v. Lobaugh, 753 A.2d 834, 836 (Pa. Super. 2000) (quoting Little v. Little, 441 Pa. Super. 185, 190, 657 A.2d 12, 15 (1995)). A court “must construe the contract only as written and may not modify the plain meaning under the guise of interpretation.” Id.

While the high/low agreement itself did not expressly address the issue of costs, the language of the agreement is clear: the parties were entering into a settlement agreement whereby plaintiffs would receive no less than $100,000 and no more than $450,000, regardless of the jury verdict. Defendants are now attempting to reduce this amount by asserting that plaintiffs are responsible for costs. Allowing defendants to recover costs would defeat the plain meaning of the agreement by reducing plaintiffs’ recovery to less than $100,000. Thus, despite the fact that there was a jury verdict in this case, defendants are not entitled to recover costs under the language of the high/low agreement.

There is further support for this conclusion given the principle that when parties settle a case without providing for costs, each party pays his or her own costs. See Standard Pennsylvania Practice 2d §127:6 (West 2000). As previously discussed, the high/low agreement constitutes a settlement. In addition, the agreement contains no provision relating to costs. Thus, plaintiffs and defendants are responsible for their own costs.

Plaintiffs also make a motion for sanctions, asserting that defendants’ filing of the bill of costs constitutes arbitrary, vexatious, frivolous, and harassing conduct. Plaintiffs request attorney’s fees in the amount of $1,012.50, which is based upon the time expended in responding to defendants’ bill of costs.

Defendants deny plaintiffs’ assertions and allege that they are entitled to recover trial costs as a matter of right under the law as the verdict winner at trial. Defendants request the court to award $500 for fees incurred in preparing a response to plaintiffs’ motion.

A party can recover attorney’s fees as a sanction based on conduct of an opponent that is dilatory, obdurate, vexatious, arbitrary or in bad faith. See 42 Pa.C.S. §2503. “An opponent’s conduct has been deemed to be ‘arbitrary’ ... if such conduct is based on random or convenient selection or choice rather than on reason or nature.” Thunberg v. Strause, 545 Pa. 607, 615, 682 A.2d 295, 299 (1996). Conduct has been deemed “vexatious” if it is: (1) instituted without sufficient grounds in either law or fact and serving only to cause annoyance; (2) instituted without reasonable cause; or (3) lacking justification and intended to harass. Standard Pennsylvania Practice 2d §127:61 (West 2000). “Frivolous” conduct has been described as “readily recognizable as devoid of merit in that there is little prospect of success.” PennDOT v. Grubb, supra at 181, 618 A.2d at 1154. Whether to grant counsel fees as a sanction against another party rests within the sound discretion of the trial court. See Newbrey v. Township and School District of Upper St. Clair, 710 A.2d 96 (Pa. Commw. 1998); see also, West v. Hampton Township Sanitary Authority, 661 A.2d 459 (Pa. Commw. 1995).

There is a lack of case law addressing whether costs can be recovered after a jury verdict when there is a high/ low agreement in effect. In addition, the high/low agreement did not specifically address costs. In light of these considerations, this court does not find that defendants’ filing of the bill of costs constituted arbitrary, vexatious, frivolous or harassing conduct. Defendants have also failed to demonstrate that they are entitled to an award of attorney’s fees. Thus, neither defendants nor plaintiffs are entitled to recover attorney’s fees.

CONCLUSION

The language of the high/low agreement is clear in that plaintiffs are to receive no less than $100,000 as a result of the settlement. An award of costs to defendants would contradict the plain meaning of the agreement by diminishing plaintiffs’ recovery and, therefore, cannot be permitted. Additionally, the general rule is that when costs are not provided for in a settlement, each side is to pay his or her own costs. Furthermore, neither party is entitled to recover attorney’s fees incurred in the resolution of this matter.

Wherefore, we enter the following:

ORDER

And now, November 13, 2000, upon consideration of plaintiffs’ objections to defendants’ bill of costs and motion for sanctions and defendants’ response thereto and request for attorney’s fees, it is hereby ordered that plaintiffs’ objections to the bill of costs are granted, defendants’ bill of costs is denied, and both parties’ requests for attorney’s fees are denied.

      . See Thunberg v. Strause, supra.

      . See PennDOT v. Grubb, 152 Pa. Commw. 178, 618 A.2d 1152 (1992).

      . See McDade v. Garland, 10 D.&C.4th 1198 (York Cty. 1991).


author: CLARK JR., J.,

text:
    In re Division of Election Precincts

      C. P. of Dauphin County,
    no. 4942 S 2000.

      Jack C. Gamer, petitioner, pro se.

      Kevin J. McKeon and Scott T. Wyland, for Dauphin County Board of Elections.
    December 21, 2000
   CLARK JR., J.,

FACTUAL HISTORY

This petition for division of certain election districts in Dauphin County was submitted to the court for review and approval on November 6, 2000. On November 8, 2000, the court entered an order setting November 29, 2000, at 1:30 p.m., in court room no. 6, as the date, time and place for a hearing on the petition, as required by law.

Subsequent to entry of said order, the Dauphin County Board of Elections, by and through its authorized agents, posted notices of said petition and court order throughout the area of the election districts, again, as required by law.

On November 27, 2000, Jack G. Garner OD, filed a petition to be added as a party and motion for continuance. On November 28, 2000, the board, through special counsel, filed a response to Dr. Garner’s petition and motion.

On November 29, 2000, at 1:30 p.m., this court convened the hearing specified in the previous order, with the board being represented by special counsel and Dr. Garner appearing pro se. The court initially determined that Dr. Garner had individual standing to participate in the hearing, inasmuch as he was a duly registered elector from one of the election districts that would be affected by the proposed action in the petition. Thereafter, the court took testimony from the petitioner (board) and Dr. Garner was permitted to conduct reasonable cross-examination of the petitioner’s witnesses. At the conclusion of the testimony submitted by the petitioner, the court permitted the record to remain open, and set Monday, December 11,2000, at 2:30 p.m. as the date and time for a continuance of the hearing, so as to afford Dr. Garner an opportunity to further review the facts and circumstances of the matter, and so that he (Garner) could also be afforded an opportunity to resolve his concerns through direct communication with petitioner’s special counsel.

On or about December 8, 2000, the petitioner and Dr. Garner filed a stipulation and proposed final order concerning all outstanding matters and issues associated with the petition. The stipulation specifically withdrew any objections that Dr. Garner had to the contents of the petition, as being resolved by the proposed final order. The matter is now ripe for the court’s action.

DISCUSSION

The Election Code of this Commonwealth, 25 P.S. §2701 et seq., and in particular 25 P.S. §2704, as amended, authorizes the County Board of Elections to petition the court of common pleas to approve the division or redivision of any election district(s) within the county.

25 P.S. §2702, as amended, sets forth the criteria that the court should consider when passing upon a request for division or redivision, and specifically establishes the minimum and maximum number of electors that should comprise the new election districts.

It is undeniable that the election districts proposed to be divided by the petition were long overdue for such consideration. Indeed, reports of the most recent general election on November 7, 2000, indicate serious backlogs of electors at numerous polling stations, including those addressed in the petition.

It is fundamental to our democratic form of government that the franchise of the vote be protected, preserved and encouraged at all costs. Recent national events illustrate the absolute necessity of ensuring this franchise to all electors. When an election district is allowed to double or even triple in its maximum allowable size, the burden on the electors cannot be overstated. A citizen who must wait in long lines, sometimes out-of-doors in inclement weather, will not readily be inclined to cast their vote. Every vote is precious to our democracy!

Therefore, it is with this view that this court approves of the instant petition. However, we are likewise constrained to observe that, in some regards, the proposed division of certain election districts did NOT go far enough.

This is particularly acute where certain districts, which were grossly overcrowded to begin with, were proposed for redivision into districts that were in excess of the 1,200 elector maximum that is established in 25 P.S. §2702, as amended. The court observes that in those districts which are at or approaching the statutory maximum, it will be a rather short time until the issue of division or redivision will have to be addressed again.

Using the parameters that are given to us by the General Assembly (25 P.S. §2702), and taking into consideration a reasonable growth factor for various areas, it appears to the court that in a proposed election district, where considerable growth is a real possibility, the optimal district size should be between 600 and 800 registered electors. Likewise in election districts where potential growth is not as great, or the area is already built out to near its reasonable limit, a proposed election district of between 800 and 1,000 registered electors is appropriate. Therefore when the year 2000 census data becomes available for use in calculating population density, it is highly recommended that the board of elections move promptly to address any other burgeoning election districts, thus relieving, to the degree possible, the burden on our electors.

Therefore, based upon the testimony presented at the hearing, and upon consideration of the data and exhibits adduced at said hearing, the court finds it necessary and appropriate to approve the petition as filed by the board, inasmuch as such division and/or redivision is absolutely imperative to the conduct of good and efficient elections within the County of Dauphin.

      . The minimum number of registered electors is 100 and the maximum number of registered electors is 1,200. Furthermore, the said maximum number can be exceeded for “good cause shown.”


author: CHESLOCK, J.,

text:
    Keyes v. Viking Insurance Company of Wisconsin
    C.P. of Monroe County,
    no. 5349 CV 2001.

      Jonathan J. Russell, for plaintiff.

      Francis R Bums III, for defendant.
    November 21, 2001
   CHESLOCK, J.,

Plaintiff commenced this action by complaint filed on July 20, 2001. Defendant responded with timely preliminary objections. Plaintiff filed an amended complaint on or about August 21, 2001. Thereafter defendant filed preliminary objections seeking dismissal for failure to state a claim. Both parties submitted briefs on the preliminary objections and arguments were heard on November 5, 2001. Now we are ready to decide the matter. The relevant facts are as follows:

(1) On November 13, 1999, plaintiff sustained injuries from a head-on collision with an uninsured automobile. The accident was caused by the negligence of the uninsured driver.

(2) Plaintiff first made a claim under his own insurance policy that carried uninsured motorist coverage. He settled for the maximum amount under the policy, $100,000.

(3) Plaintiff also received that amount under his spouse’s policy.

(4) Plaintiff then made a claim under his son’s policy, insured by defendant, Viking Insurance Company.

(5) Defendant’s policy provided a maximum of $15,000 in uninsured motorist claims.

(6) Defendant denied plaintiff’s claim on the basis that he was excluded under the terms of the policy.

(7) Plaintiff alleges that his son resided in his household at the time of the accident.

(8) Plaintiff seeks damages for breach of contract and bad faith for refusing to honor the claim.

In ruling on preliminary objections we must accept as true all well-pleaded facts and reasonable inferences drawn therefrom. See Dorfman v. Pennsylvania Social Services, 752 A.2d 933, 936 (Pa. Commw. 2000). However, we need not accept any conclusions of law, unwarranted inferences, or opinion. Id. Moreover, we should sustain preliminary objections only when they are free and clear from doubt. Id.

Defendant’s basic policy form in which plaintiff’s son is the named insured defines “family member” as “a person related to you (insured) by blood, marriage, or adoption who is a resident of your household and who does not own an auto. This includes a legal ward or foster child.” However, the basic exclusion in the policy reads:

“(1) We do not provide uninsured motorist coverage for bodily injury sustained: Part ‘B’: By any family member while occupying, or when struck by, any motor vehicle you own which is insured for this coverage on a primary basis under any other policy.”

Part “C” of the policy addresses uninsured motorist coverage and provides for the payment of compensatory damages which “an insured is legally entitled to recover from the owner or operator of an uninsured vehicle because of bodily injury.” This portion of the policy defines insured as “you or any family member.” But, there is a specific exclusion for this part of the policy:

“We do not provide uninsured motorist coverage for bodily injury sustained:
“Part ‘B’: By a family member:
“(1) Who owns an auto, while occupying, or when struck by, any motor vehicle owned by you or any family member which is not insured for coverage under this policy ....”

Plaintiff essentially makes two arguments in defense of his amended complaint: (1) that he does not fall under the general exclusion of defendant’s policy because he does not fit the policy’s definition of “family member” and (2) that defendant’s definition of “insured” contravenes the statute and, therefore, we must grant relief under the statute. Plaintiff fails on both points, for the following reasons:

(a) Plaintiff argues that the intent of the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL) and its broader definition of insured was to protect plaintiff in this situation, where he is hit by uninsured and damage exceeds his own $100,000 protection limit. However, because we have different cars and different individuals with separate policies, the insurance company is justified in not expecting to pay. It is clear that two strong policy goals of the statute are in conflict, compensating the insured who is the victim of an uninsured’s negligence and the need to reduce spiraling insurance costs.

This court finds that we do not even get to these policy matters, as the Third Circuit has spoken on this matter in Troebs v. Nationwide Ins. Co., 1999 WL 79555. Namely, the exclusionary provision in the son’s policy must be upheld. It is true that there are conflicting policies at issue. The MVFRL was designed to protect the insured driver from uninsured motorists. By the same token, it’s meant to reduce the spiraling cost of car insurance. The facts in Troebs, including the exclusionary policy, are nearly identical to our case. Id. Plaintiff sustained injuries in his own vehicle in an accident caused by an unknown vehicle. Id. Plaintiff also had $50,000/$ 100,000 uninsured coverage that he settled for. Id. Thereafter he made a claim under his father’s Nationwide policy, where his father was the only named insured. Id. We defer to the Troebs court’s analysis.

“There is a correlation between premiums paid by the insured and the coverage claimant should reasonably expect to receive. Here (the uninsured) motorist chose not to purchase underinsured motorist coverage. In return for this choice, appellant received reduced insurance premiums ... Thus the court concludes that giving effect to the household exclusion in this case furthers the legislative policy behind underinsured motorist coverage in the MVFRL since it will have the effect of holding the insured to his voluntary choice. Allowing the ‘household exclusion’ language to stand in this case is further bolstered by the intent behind the MVFRL, to stop spiraling costs of insurance. If plaintiff’s position were accepted it would allow an entire family living in a single household with numerous automobiles to obtain underinsured motorist coverage for each family member through a single insurance policy on one of the automobiles in the household. If this result were allowed, it would most likely result in even higher premiums on all . . . since insurers would be required to factor expended coverage cost into rates charged for underinsured coverage.

“The same considerations and concerns apply to motorists who purchase insufficient underinsured coverage. Enforcing the exclusion keeps insurance costs in check because the insurer can accurately calculate the extent of its risk. Lower costs are a major objective of the MVFRL. Declaring the exclusion void could encourage household members to rely on whichever policy had the highest coverage. Following the Hart-Eichelman rationale, relatives would have incentive to purchase minimal first-party coverage, knowing that they could avail themselves of the highest limits within their household. Accordingly, the result would be higher premiums because insurers would charge added risk of inadequately insured family members. These strong public policy considerations, as perceived by the Pennsylvania Supreme Court favor enforcement of the household exclusion. Id”

(b) Language in a normal insurance policy is to be determined by its ordinary meaning. The plaintiff cannot have it both ways. Essentially he argues for differing definitions of the term “insured” to suit his needs. Under either one, however, plaintiff cannot recover. First, if we use “insured” as defined under the statute to include any relative residing in the same household, plaintiff gets into the statutory protection, but he is then kicked out by the statutory exclusion provided for in part C of the policy. In his brief, plaintiff argues for the broader definition. Therefore, he cannot in midstream halt his course and argue that he does not come in under the exclusion. Secondly, it is not clear that plaintiff would come in under the broader definition, as defendant correctly argues that the cited language states that “insured” is a relative residing in the home of the named insured and not vice versa. Here, the named insured, the son, is residing in the house owned by the plaintiff, father. Either way, plaintiff fails to state a claim.

As noted earlier, the part C policy exclusion reads:

“(1) We do not provide uninsured motorist coverage for bodily injury sustained:
“(A) By you while occupying, or when struck by, any motor vehicle you own which is not insured for this coverage under this policy
“(B) By a. family member:
“(1) who owns an auto, while occupying or when struck by any motor vehicle owned by you or any family member which is not insured for this coverage under this policy.”

We must give the terms their plain meaning. If the terms are clear and unambiguous, we must follow them. Even though the policy defined “family member” as not owning a car, clearly the exclusion contemplates those who do own a car. In other words, the policy expressly excludes any relative residing in the household who might otherwise qualify as “insured” but for the fact that their car is not insured in this policy. To read this section otherwise would make no sense; that is, a family member not owning an auto is canceled out since the policy is singling out only those family members that do own a separate auto.

Part “C” of the uninsured motorists coverage was designed to pay damages which an insured is legally entitled to recover from the owner of an uninsured vehicle, where “insured” includes any family member. However, what plaintiff did not include in the complaint was provision that excludes any family member owning an auto while occupying . . . any vehicle not insured for coverage under the policy. The significance is that even if we define insured as any family member or relative residing in the same household, plaintiff is still excluded under the part C exclusion.

(c) Finally, plaintiff cites no case law that supports protection under any other provisions of the statute. For example, section 1733, “Priority of recovery” of the MVFRL, is relevant where “multiple policies apply.” Since we must follow the binding decision in Troebs, we cannot accept plaintiff’s position that this section is applicable. 75 Pa.C.S. §1733 (West 2000).

We likewise must grant preliminary objections on the related matter of bad faith. Since plaintiff is not entitled to coverage, his claim of bad faith must therefore fail. There is no legal or logical basis to conclude otherwise. The bad faith claim is separate from the underlying contract only to the extent that the limitation period or other procedural reasons bar the contract claim. However, where a court finds there is no substantive breach of contract then the bad faith action must fail. As defendant argues in its brief, the Third Circuit has specifically distinguished situations where the statute of limitations expired from the case where there is no duty to defend and thus good reason to refuse to defend against a suit, which is clearly the situation here. Frog, Switch & Mfg. Co. v. Travelers Ins. Co., 193 F.3d 742, 751 n.9 (3d Cir. 1999).

ORDER

Andnow, November 21, 2001 defendant’s preliminary objections are hereby granted and we order that the case be dismissed.


author: LAWLER, J.,

text:
    Roccograndi v. Temple University Health System

      C.P. of Bucks County,
    no. 99-04962-23-5.

      Michael T. Sellers, for plaintiff.

      Michele Daniele, for defendants Temple University Health System and Temple Lower Bucks Hospital.

      Robert F Fortin, for defendants Fields and Bucks County Cardiology Assoc.
    March 7, 2001
   LAWLER, J.,

Defendants Temple University Health System and Temple Lower Bucks Hospital, d/b/a Temple Lower Bucks Hospital, appeal the order of this court dated January 9, 2001, granting plaintiff Samuel Roccograndi’s second motion for sanctions against defendants. Pursuant to Pa.R.A.P. 1925(b), the defendants have submitted a concise statement of matters complained of on appeal. This opinion is filed in accordance with Pa.R.A.P. 1925(a).

BACKGROUND

Plaintiff’s lawsuit alleges that the defendants performed an unauthorized autopsy on plaintiff’s deceased wife, Elsie Roccograndi, and removed her heart without permission. As a result, Mrs. Roccograndi’s body was interred without her heart. Plaintiff alleges that the decedent’s family did not know that her body was not buried intact. The deceased was subsequently exhumed, and her heart was reburied with her body. Plaintiff seeks monetary damages.

This appeal concerns certain discovery requests made by plaintiff. On February 25, 2000, plaintiff served interrogatories and a request for production of documents on defendant Temple. On April 11, 2000, having received no response, plaintiff filed a motion to compel. Pursuant to Bucks County R.C.P. 4019(g)(1)*(a), this court entered an order dated April 27, 2000, directing defendant Temple to either submit full and complete answers to plaintiff’s discovery requests within 20 days, or file a motion for hearing within 10 days. Temple never filed a motion for hearing. On May 27, 2000, plaintiff received Temple’s answers and objections to plaintiff’s discovery requests.

Plaintiff filed a motion for sanctions against defendant Temple on June 22, 2000, alleging that Temple’s answers and objections violated this court’s April 27, 2000 order because they were served late, and were not full and complete answers. This court held a hearing on plaintiff’s motion on September 1, 2000. Following the hearing, this court issued an order of the same date denying and overruling all of defendant Temple’s objections to plaintiff’s discovery requests. The September 9, 2000 order directed Temple to submit full and complete answers to plaintiff’s interrogatories and full and complete documentation in response to plaintiff’s request for production of documents within 10 days. The September 9,2000 order further stated that if the defendant failed to comply, this court could order sanctions after a hearing, and grant leave for plaintiff to file a petition for attorney’s fees. Defendant Temple provided supplementary responses to plaintiff’s discovery requests by correspondence dated September 20, 2000, but continued to assert objections. Also on September 20, 2000, Temple filed a motion for reconsideration of the order of September 1, 2000. This court denied and dismissed defendant’s motion for reconsideration on December 4, 2000.

Plaintiff filed a second motion for sanctions on October 17, 2000, asserting that defendant Temple failed to comply with this court’s September 1, 2000 order. A January 5, 2001 hearing followed. At that hearing, counsel for Temple stated that in light of this court’s denial of its motion for reconsideration, the defendant intended to file more complete responses. N.T. 1/5/2001, p. 7. Defense counsel stated she would be able to do so in 10 days. Following the hearing, this court issued an order dated January 9, 2001, granting plaintiff’s second motion for sanctions. The following sanctions were imposed: defendant Temple and its attorney, Michele Daniele, were each ordered to pay plaintiff the sum of $1,500 within 10 days thereafter. Further, Temple and Attorney Daniele were each ordered to pay plaintiff $25 per day for every day after January 19, 2001 that they are not in compliance with the January 9, 2001 order and the September 1, 2000 order. Defendant then filed this appeal.

ISSUES ON APPEAL

The Defendant’s statement of matters complained of on appeal alleges 13 points of error. However, defendant’s statement completely ignores the procedural issues, which are dispositive of this case. The issues on appeal are more accurately and more succinctly stated as follows:

(1) Whether this court’s January 9, 2001 order is an appealable order.

(2) Whether defense counsel’s repeated failure to read, understand, and obey the rules of civil procedure and the orders issued by this court justified the imposition of sanctions.

DISCUSSION

1. This Court’s Order Is Not Appealable

This court’s January 9, 2001 order is not appealable by the defendant. Generally, discovery sanction orders are interlocutory and not appealable until final judgment is entered in the underlying action. Baranowski v. American Multi-Cinema Inc., 455 Pa. Super. 356, 688 A.2d 207 (1997), alloc. denied, 550 Pa. 675, 704 A.2d 633 (1997); West v. Andersen, 426 Pa. Super. 127, 626 A.2d 606 (1993). An appeal may only be taken from a final order, from an interlocutory order appealable as of right, from an interlocutory order by permission, or from a collateral order. Smitley v. Holiday Rambler Corp., 707 A.2d 520, 524 (Pa. Super. 1998). Because the order at issue here did not “dispose of all claims and of all parties,” it is not a final order from which an appeal may be taken as a matter of right. Pa.R.A.P. 341(b). “Generally a final order is one which ends the litigation or disposes of the entire case.” See In re Austin Trust, 449 Pa. Super. 467, 473, 674 A.2d 293, 296 (1996). Clearly, an order imposing sanctions against a party does not end the litigation. This court’s January 9, 2001 order did not reach the merits of this case. Furthermore, the January 9, 2001 order is neither an interlocutory order appealable as of right under Pa.R.A.P. 311, nor an appeal taken with this court’s permission. Therefore, unless the order at issue here falls within the collateral order doctrine, defendant’s appeal is not proper.

This court’s January 9, 2001 order does not qualify as a collateral order under Pa.R.A.P. 313.

“Under [the collateral order] exception to the finality rule, an order is immediately appealable if: (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case the claimed right will be irreparably lost.” Witt v. LaLonde, 762 A.2d 1109, 1110 (Pa. Super. 2000); Pa.R.A.P. 313(b).

To qualify, an order must satisfy all three elements. Keefer v. Keefer, 741 A.2d 808, 812-13 (Pa. Super. 1999). Although the order appealed from here is arguably separable from and collateral to the main cause of action, it fails to satisfy the second and third elements of the above test.

When analyzing the importance of the issue and irreparable loss elements of the collateral order doctrine, a court must weigh the interests implicated in the case against the costs of piecemeal litigation. Ben v. Schwartz, 556 Pa. 475, 483, 729 A.2d 547, 552 (1999); Geniviva v. Frisk, 555 Pa. 589, 597-98, 725 A.2d 1209, 1213 (1999). An issue is too important to be denied review only when it involves “rights deeply rooted in public policy going beyond the particular litigation at hand.” Ben v. Schwartz at 484, 729 A.2d at 552 (quoting Geniviva at 598, 725 A.2d at 1213-14). “[I]t is not sufficient that the issue be important to the particular parties.” Id. Here, the only interests affected are the pecuniary interests of defendant Temple and its attorney. The January 9, 2001 order imposes sanctions for the violation of this court’s prior orders in this case. It neither implicates rights rooted in public policy nor impacts individuals other than those involved in this particular litigation. See Ben v. Schwartz at 484, 729 A.2d at 552.

It is important to note that the order appealed from here is an order imposing sanctions, not an order compelling discovery. Defendant’s statement of matters complained of on appeal asserts that the peer review privilege is at issue. However, the January 9, 2001 order merely imposed sanctions for failure to obey this court’s September 1, 2000 order. It did not independently compel Temple to produce documents or information. The September 1,2000 order, on the other hand, did overrule and deny the defendant’s objections to plaintiff’s discovery requests, and instructed defendant Temple to submit full and complete responses to certain interrogatories and requests for production of documents. Temple did not appeal the September 1, 2000 order. Furthermore, as will be more fully discussed below, defendant Temple never properly asserted its objections to plaintiff’s discovery requests before this court, including the claim of privilege.

The January 9, 2001 order also fails to satisfy the third element of the collateral order doctrine, irreparable loss. “To satisfy this element, an issue must actually be lost if review is postponed. Orders that make a trial inconvenient for one party or introduce potential inefficiencies, including post-trial appeals of orders and subsequent retrials, are not considered as irreparably lost.” Keefer, 741 A.2d at 813. “An interest or issue must actually disappear due to the processes of trial.” Id. Here, the claimed right will not be irreparably lost if review is postponed until final judgment. The defendant can effectively appeal the imposition of monetary sanctions post-trial. If this court’s imposition of sanctions were determined to be improper, any money paid as a sanction could be returned. The pecuniary interests involved here will not disappear through the trial process. At most, postponing review of the order will result in inconvenience to defendant Temple and its counsel. Again, it is important to recognize that the order appealed from only imposed sanctions; it did not rule on Temple’s objections to discovery or claims of privilege.

2. Defense Counsel’s Acts Justified the Imposition of Sanctions

This court properly exercised its discretion and imposed appropriate sanctions in this matter. The imposition of discovery sanctions is governed by Rule 4019, which states in pertinent part:

“(a)(1) The court may, on motion, make an appropriate order if
“(i) a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005;...
“(vii) a party, in response to a request for production or inspection made under Rule 4009, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested;
“(viii) a party or person otherwise fails to make discovery or to obey an order of court respecting discovery.” Pa.R.C.R 4019(a)(1),

Here, there were multiple transgressions by defendant Temple with regard to plaintiff’s discovery requests. First Temple failed to serve timely answers or objections to written interrogatories under Pa.R.C.P. 4005. Rule 4006(a)(2) requires such answers and objections to be served within 30 days after service of the interrogatories. Second, Temple faded to timely respond to plaintiff’s request for production of documents under Rule 4009. Rule 4009.12 requires a party to serve answers and objections, and produce documents not subject to an objection, within 30 days after service of the request. Defense counsel admitted at the September 1, 2000 hearing that defendant did not respond to plaintiff’s discovery requests within the requisite 30-day period. N.T. 9/1/ 2000, p. 32. Discovery sanctions may be imposed on a party who fails to file or serve answers and/or objections to interrogatories and requests for production of documents within the 30-day period prescribed by the Rules of Civil Procedure. See Vogel v. Berkley, 40 D.&C.3d 339 (1985), aff’d, 354 Pa. Super. 291, 511 A.2d 878 (1986).

Defendant Temple’s third transgression relates to this court’s April 27, 2000 order granting plaintiff’s motion to compel. That order required Temple to file full and complete answers to plaintiff’s interrogatories and request for production of documents within 20 days, or file a motion for hearing within 10 days. The defendant never filed a motion for hearing. However, the discovery responses ultimately submitted by Temple were not full and complete; they were laden with objections. If defense counsel wished to raise objections to discovery not served or filed within the 30-day period for doing so, she should have at least requested a hearing, as suggested by the April 27, 2000 order and Bucks County Rule 4019(g)(1)*(a). However, defense counsel failed to adequately familiarize herself with the applicable local rule. N.T. 9/1/2000, pp. 22-23. As a result, she misinterpreted this court’s April 27, 2000 order. N.T. 9/1/2000, pp. 32-33.

Finally, defendant Temple also violated this court’s September 1, 2000 order, which denied and overruled Temple’s objections and directed Temple to file full and complete responses within 10 days. Although Temple did submit revised answers to the interrogatories and request for production, it continued to assert the same objections which were overruled by the September 1, 2000 order. Temple knowingly disobeyed the September 1, 2000 order, asserting objections and withholding discovery, allegedly on account of its pending September 20, 2000 motion for reconsideration. However, defendant Temple’s filing of a motion for reconsideration in no way stayed this court’s order. Temple was still obligated to file full and complete responses within 10 days, under threat of sanctions. Temple disobeyed the September 1, 2000 order, necessitating this court’s January 9, 2001 imposition of sanctions.

Defendant Temple’s contention that the information sought by plaintiff is privileged or otherwise not discoverable does not excuse Temple’s failure to obey this court’s orders and the Rules of Civil Procedure. As Pa.R.C.P. 4019(a)(2) directly states, “[a] failure to act described in subdivision (a)(1) may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order.” Here, defendant Temple never filed its objections with this court for disposition, and never applied for a protective order. Temple had numerous opportunities to properly assert its objections, but failed to do so. Initially, Temple should have served answers and/or objections to plaintiff’s discovery request within 30 days. Temple should have sought a protective order, through which it could have properly asserted its claims of privilege. In the alternative, Temple could have filed its objections with this court, and forwarded them to the undersigned for disposition pursuant to Bucks R.C.P. *266. Instead, Temple did nothing until plaintiff filed a motion to compel, and obtained an order requiring a response from defendant. Even then Temple had the opportunity to file a motion for hearing and assert its objections, but did not do so. However, when Temple finally did respond to plaintiff’s discovery requests, the responses were replete with objections. Defendant’s response to plaintiff’s request for production did not even remotely comply with Rule 4009.12(b). Only at the September 1, 2000 hearing on plaintiff’s motion for sanctions did defense counsel offer to prepare an indexed list of documents not produced, and request an in-camera review of those documents. Defendant never made such a request until faced with potentially severe sanctions. Defendant Temple should have indexed its documents and requested in camera review at the outset if defense counsel thought the peer review privilege was implicated.

Rule 4019(c) provides that when there has been a violation which supports a sanction under subdivision (a) of that rule, a court may make:

“(4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010;
“(5) such order with regard to the failure to make discovery as is just.”

An appropriate discovery sanction is determined by consideration of (1) the nature and severity of the violation; (2) the defaulting party’s willfulness or bad faith; (3) prejudice to the opposing party; (4) the ability to cure the prejudice; and (5) the importance of the precluded evidence in light of the failure to comply. Luszczynski v. Bradley, 729 A.2d 83, 87 (Pa. Super. 1999), withdrawn, 559 Pa. 692, 739 A.2d 1058 (1999). Here, each of the above factors were addressed at length by counsel at the September 1, 2000 and January 5, 2001 hearings, and taken into account by the undersigned in fashioning the discovery sanction now appealed from. After weighing all of these factors, this court issued an order imposing punishment for contempt against defendant Temple, based on Temple’s failure to comply with this court’s September 1,2000 order. An order imposing punishment for contempt is specifically permitted by Rule 4019(c)(4).

In imposing specific sanctions for failure to comply with discovery, a trial court is required to strike a balance between the procedural need to move the case to prompt disposition and the substantive rights of the parties. Poulos v. PennDOT, 133 Pa. Commw. 322, 325, 575 A.2d 967, 969 (1990). Furthermore, a discovery sanction must be proportionate to the sanctioned party’s failure to comply with the discovery request. See Baranowski v. American Multi-Cinema Inc., 455 Pa. Super. 356, 688 A.2d 207 (1997), alloc. denied, 550 Pa. 675, 704 A.2d 633 (1997). Here, the sanction employed by this court meets these requirements. Importantly, the decision whether to sanction a party for discovery violations, and the severity of such a sanction, is vested in the sound discretion of the trial court. Croydon Plastics Co. Inc. v. Lower Bucks Cooling & Heating, 698 A.2d 625 (Pa. Super. 1997), alloc. denied, 553 Pa. 689, 717 A.2d 1028 (1998). Here, this court, applying the above principles, exercised its sound discretion to fashion the sanctions imposed by the January 9, 2001 order.

      . The Superior Court has already concluded that the order at issue here is an interlocutory matter. This conclusion is stated in a per cu-riam order filed January 30, 2001 (docket no. 18 EDM 2001), declining to consider defendant’s application for a stay in this case.