author: FORADORA, P.J.,

text:
    Thompson v. Schriver

      April 11, 2002
    C.P. of Jefferson County,
    no. 483-2000 CD.

      Tina M. Hesse, for plaintiffs.

      Jeffrey Gordon, for defendant.
   FORADORA, P.J.,

Currently before the court is the defendant’s motion for judgment on the pleadings dismissing the plaintiffs’ request for expectation damages. The plaintiffs in their amended complaint filed December 11, 2000, claim a cause of action based on a theory of promissory estoppel and breach of contract. Specifically they aver that the defendant had approached them concerning the possible transfer of ownership of his interest in a retail store known as “Amish I.” The plaintiffs in reliance upon this offer did take over the management of the store while the parties continued to negotiate the finalized terms of the agreement. On August 13,1999, before any final agreement was reached and formalized, the defendant, without warning, did dismiss them from the premises. The plaintiffs are now attempting to recover “reliance, expectation and lost opportunity costs.” Complaint ¶21.

Pennsylvania Rule of Civil Procedure 1034 provides the following with regard to motions for judgment on the pleadings:

“(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.

“(b) The court shall enter such judgment or order as shall be proper on the pleadings.”

In determining whether to grant a motion for judgment on the pleadings, courts are confined to considering only the pleadings and any attached documents, and “must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion [was] filed, considering only those facts which were specifically admitted.” Public Service Mutual Insurance Company v. Kidder-Friedman, 743 A.2d 485, 487 (Pa. Super. 1999). Judgment on the pleadings is proper only where the court finds that the moving party’s right to succeed is established beyond a doubt such that “trial would clearly be a fruitless exercise.” Id.

Currently two issues of law are before the court: (1) Is an action for promissory estoppel limited to reliance damages? (2) Does detrimental reliance constitute the necessary consideration' for the formation of a contract? Each of these issues shall be addressed individually by the court.

I. The Restatement (Second) of Contracts §90 states:

“Promise reasonably inducing action or forbearance

“(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires. ”

The Supreme Court of Pennsylvania has articulated the necessary elements for a claim of promissory estoppel as requiring: (1) the promisor made a promise that he should have reasonably expected would induce action or forbearance on the part of the promisee; (2) the promisee actually took action or refrained from taking action in reliance on the promise; and (3) injustice can be avoided only by enforcing the promise. Thatcher’s Drug Store of West Goshen Inc. v. Consolidated Supermarkets Inc., 535 Pa. 469, 476, 636 A.2d 156, 160 (1994).

The plaintiffs argue that damages must be awarded as “justice requires,” therefore no legal restrictions exist precluding the award of more than reliance damages. Plaintiffs rely on the express language of Restatement (Second) of Contracts §90 which states, “The remedy granted may be Limited as justice requires.” Using this language as their basic premise they conclude that a logical extension of this legal principle is that “the remedy granted may be Expanded as justice requires.” Although the plaintiffs concede that in Lobolito Inc. v. North Pocono School District, the Supreme Court of Pennsylvania appears to limit promissory estoppel to reliance damages, the plaintiffs contend that Lobolito is distinguishable from the present case. Lobolito Inc. v. North Pocono School District, 562 Pa. 380, 755 A.2d 1287 (2000). In Lobolito, the court, in its reasoning focused on the existence of losses that were incurred in reliance on defendant’s promise and stated they may be recovered under a theory of promissory estoppel. Lobolito Inc. v. North Pocono School District, 562 Pa. 380, 755 A.2d 1287 (2000). The defendant argues that the court’s act of limiting damages only to those that were incurred in reliance on the promise is evidence that only reliance damages are recoverable. The plaintiffs argue that the court’s opinion limited recovery to reliance damages because of the preliminary stage of the agreement. In Lobolito, supra, the parties had not yet begun to undertake the actual agreement obligations. Plaintiffs argue that in the present case the parties had actually begun performance and therefore are entitled to damages limited only by the bounds of a fair and just result.

The original point of promissory estoppel was to enable courts to enforce contract-like promises made unenforceable by technical defects or defenses. It is axiomatic that in order for an agreement to be given the status of legal enforceability it must contain essential elements, an offer, an acceptance and mutual consideration. PennDOT v. First Pennsylvania Bank, 77 Pa. Commw. 551, 466 A.2d 753 (1983). Promissory estoppel has historically been utilized in instances where one of these essential elements is not present. “[T]he phrase ‘promissory estoppel’ and this nomenclature is well chosen as indicating that the basis of the doctrine is not so much one of contract, with a substitute for consideration, as an application of the general principle of estoppel to certain situations.” Fried v. Fisher, 328 Pa. 497, 501, 196 A. 39, 41 (1938); see Crouse v. Cyclops Industries, 560 Pa. 394, 398, 745 A.2d 606, 610 (2000). In an effort to remedy the injustice caused by a promise that is reasonably relied upon and then broken the courts have awarded “damages where justice requires.” Restatement (Second) of Contracts §90; Travers v. Cameron County School District, 117 Pa. Commw. 606, 613, 544 A.2d 547, 551 (1988).

The ambiguities that have arisen in the present case appear to result from two sources: (1) The confusion that arises when promissory estoppel is viewed as a substitute for consideration in contract formation and (2) the language of the Restatement which limits damages only “as justice requires.” Attempting to traverse these pitfalls it is important to keep clear that an action for promissory estoppel is not an action for breach of contract. A contract is a legally enforceable agreement due to its conformity to specific legal requirements. Once meeting these requirements it is granted the legal status of “enforceability” and a party may seek damages that would grant the benefit of the bargain if this agreement is breached. Promissory estoppel however is not a legally enforceable agreement. It is an equitable remedy that acts to estop a party from acting in derogation to a promise made if it was reasonable and foreseeable that the promisee would rely to his detriment on the statement. Although detrimental reliance may be an alternative to consideration for the enforcement of a promise, it is not a substitute to contract formation.

A prima facie requirement of an action for promissory estoppel is reasonable and foreseeable reliance on the promise. It appears clear to this court that the express language of the Restatement (Second) of Contracts and those elements adopted by the Pennsylvania Supreme Court limits damages to those which were incurred in the course of this reasonable reliance. See Travers v. Cameron County School District, 117 Pa. Commw. 606, 544 A.2d 547 (1988); see Thatcher’s Drug Store of West Goshen Inc. v. Consolidated Supermarkets Inc., 535 Pa. 469, 476, 636 A.2d 156, 160 (1994). With this as the premise, the language which limits damages “as justice requires” empowers the court to restrict reliance damages to those instances where the plaintiff can derive no alternative benefit from his expenditure of resources. Promissory estoppel is limited to enforcing promises only in those instances where an injustice would occur should the promise not be enforced; therefore if the plaintiff is enriched to some degree by his reliance on the promise then damages are to be reduced by this amount. The court feels that this conclusion is more strongly supported by the contextual meaning of the language in light of the historical development of promissory estoppel rather than attempting to conclude that the power to limit damages also implies the power to expand damages.

II. The plaintiffs’ last contention is that their actions of managing Amish I, in reliance upon the promise made by the defendant was sufficient to form an enforceable contract between the parties.

This argument fails to take into account the necessary element of consideration that is required in order for an agreement to achieve the status of legal enforceability. Consideration is bargained for exchange, which indicates that, but for the agreement, the party is not legally obligated to perform. In the current case, the plaintiffs were never legally bound to undertake any performance pursuant to the terms of the alleged agreement. This court refuses to accept the argument that detrimental reliance constitutes consideration for the reasons previously cited.

ORDER

And now, April 11, 2002, in response to the motion for judgment on the pleadings filed by the defendant, an oral argument has been held and briefs have been submitted by the parties, the court now enters the following order:

It is hereby decreed that the motion for judgment on the pleadings is granted. Plaintiffs’ claim shall be limited to an award of reliance damages. Given the remaining requests for discovery, related to discovery of promissory estoppel elements, it is hereby ordered that the motion to compel discovery is denied.

      . American Jurisprudence (second) vol. 28 §57.


source: Caselaw Access Project

author: FRIEDMAN J.,

license: Public Domain

text:
    Tom Clark Chevrolet Inc. v. Board of Property Assessment Appeals & Review

      C.P. of Allegheny County,
    no. GD 99-22270.

      Mark F. Haak, for plaintiff.

      Ronald Zera, for defendant school district.

      Falco A. Mascante, for defendant city.

      April 10, 2002

      Robert Reith, for defendant county.
   FRIEDMAN J.,

The instant case came before the court as a non-jury trial, ordered by the administrative judge of civil division, upon the recommendation of the special masters originally assigned to hear plaintiff’s assessment appeal. The central issue is whether or not the assessed value of certain real estate owned by Tom Clark Chevrolet (plaintiff), as determined by the Board of Property Assessment Appeals and Review, was also, as the parties agree it should have been, based on the property’s fair market value. The board’s position was defended by the three taxing bodies directly affected, the City and School District of McKeesport and the County of Allegheny (defendants).

The plaintiff’s evidence regarding fair market value consisted of the testimony of three witnesses, the plaintiff’s sole owner, Tom Clark, one of its employees, Timothy Seale, and an expert in real estate appraisals, William Rielly Jr. The defendants presented no evidence, resting instead on the legal presumption of the accuracy of the county tax blotter and contending that plaintiff did not rebut that presumption.

After full consideration of all the evidence and the arguments of counsel, the court concludes that the presumption of accuracy was clearly rebutted and, further, determines that the fair market value of the subject property is no more than $565,000 for each of the years at issue, 1999-2002. It is believed that the parties were content to have one value suffice for all four tax years, although if this understanding is incorrect, the court is prepared, based on the evidence available to it, to make additional calculations for each tax year.

The testimony of Mr. Clark, the majority owner and an officer of plaintiff, clearly established that a drainage canal across the road from the subject real estate began flooding the property in 1996, six or seven years after he purchased it, and continues to do so on a regular basis, causing extensive damage and making insurance difficult to obtain. Mr. Clark and Mr. Seale’s testimony is credible and uncontroverted. The court finds that, until the flooding problem is corrected, an eventuality that is not on the horizon, plaintiff will be unable to sell its real estate for enough even to recover its investment in the land and building. Whatever the fair market value of the real estate would be without the flooding and in a more prosperous area, it has been severely reduced by those conditions at least since 1996.

The report of the plaintiff’s expert is extremely thorough and his testimony was highly credible. The defendants presented two flawed arguments in support of the presumption of validity upon which they rely: first, the school district argued that the value of the plaintiff’s business is the measure of the fair market value of the land, and used the taxable earnings of the business as a basis for its calculations; second, the city argued that the unadjusted sale prices of similar land in other parts of the county were comparable even though the undisputed evidence showed that those parcels were in much more prosperous and expensive areas, while the subject parcel is in an area of values that are depressed if not in fact distressed. The county itself took no position beyond adopting the arguments of the city and school district.

As to the school district’s position, it is clearly mistaken to say that the income approach to real estate evaluation, which starts with the rental value of the property, should instead be coextensive with the gross income of whatever business happens to be on the property. Even the net income of a business is of little use in determining the fair rental value of the real estate on which it sits. The uncontroverted testimony indicates that the income approach applies only to investment properties, i.e., real estate that is purchased for the purpose of renting it to others. Car dealerships are generally located on real estate owned by the dealership or its principals, so that rent is not a particularly reliable way to determine value. Moreover, if one wishes to use the income approach in valuing real estate, the correct income to use is the fair rental value that the real estate would command, not the income to the business that is on the real estate. If, as here, the owner of the real estate does not lease it to others, so that the real estate generates no rents, then the income approach to valuation must be based on hypothetical rents and expenses (which are referred to in the testimony as pro forma). Whether the business located on the land earns gross revenues of millions of dollars or nothing is, alone, of little use in determining what the fair rental value should be where no rent is paid.

As to the city’s position, that a car dealership’s real estate in a prosperous neighborhood is comparable to such real estate in a poorer area, that argument, too, is flawed. The comparable sales approach to real estate must be based on sales of real estate that are comparable. The uncontxoverted testimony of the plaintiff’s expert was not only credible, it is almost axiomatic: land in a thriving neighborhood is more desirable and costly than land in a neighborhood that is less than prosperous. Plaintiff’s expert’s testimony that he reduced the sales prices of land used for car dealerships in Moon, McCandless and West Mifflin to make them comparable to the land at issue, is credible and reasonable. Based on his extensive experience and considering the uncorrected flood problem affecting the site, he chose a factor of 70 percent. Although defendants could have presented their own experts to contradict this, they did not. The fact that defendants give as a reason for not hiring an expert the poverty of the McKeesport area is further evidence of the difference between it and Moon, McCandless or West Mifflin.

The court finds that plaintiff’s expert was eminently qualified in the area of real estate evaluation. It also finds that he was highly credible. His testimony established that the assessed value that has been placed on this real estate is excessively high, given both its location and the uncorrected flooding problem.

CONCLUSION

The plaintiff has met its burden of rebutting the presumption of validity of the assessed values of the subject real estate for the years 1999-2002. The assessed values are therefore set as follows for the years indicated:

1999 (20.3% ratio) $114,695

2000 (19.8% ratio) $111,870

2001 (1.00% fmv) $565,000

2002 (100% fmv) $565,000

See verdict slip filed separately, [not published here]

      . According to the uncontroverted testimony of Mr. Seale, despite the regular flooding, this is of man-made (actually, government-made) origins and does not make plaintiff eligible for flood-related business interruption or other insurance programs.


author: TURGEON, J.,

text:
    Thompson v. Santiago

      April 9, 2001
    C.P. of Dauphin County,
    no. 1142 DR 2000.

      Harry Bricker Jr., for plaintiff.

      Anthony McBeth, for defendant.
   TURGEON, J.,

The issue before this court is whether a North Carolina court had personal jurisdiction over Carlos Santiago, a Pennsylvania resident, when it established his paternity of a 16-year-old child. Defendant raised the issue in response to plaintiff’s registration of the North Carolina order in Dauphin County for purposes of enforcing child support and arrearages against him under the Uniform Interstate Family Support Act (UIFSA). For the reasons set forth below, we find the North Carolina court lacked personal jurisdiction over defendant.

BACKGROUND

On March 18, 1999, the Robeson County Child Support Enforcement Agency (RCEU), in its own right and on behalf of Hazel Thompson, filed a civil summons and complaint against Carlos Santiago in the Robeson County District Court in North Carolina. The complaint sought to establish defendant as the biological father of Hazel Thompson’s son, Seneca Thompson (d.o.b. April 11, 1982). The complaint also sought to impose a child support obligation and seek reimbursement for North Carolina public assistance paid to the child. (Appendix A, [not] attached hereto.) Both Ms. Thompson and her son are Robeson County residents. The North Carolina record indicates that the summons and complaint were served upon Santiago by certified mail on March 29, 1999, as evidenced by Santiago’s signed return receipt.

A North Carolina patemity/support hearing was held June 21,1999, at which plaintiff appeared but defendant did not. Plaintiff, the sole witness, testified she became pregnant in July 19 81 after she had legally separated from her husband, John D. Baker Jr. She also testified that sometime in 1998, she and the child had visited defendant in Pennsylvania and that defendant acknowledged paternity of him at that time. (N.C. hearing N.T. 2-3.) (Appendix B.) Plaintiff did not offer any evidence to support her allegation in the complaint that the child had been conceived in North Carolina.

Thereafter, the North Carolina court issued a judgment, July 9,1999, establishing defendant’s paternity and support obligation. The judgment contained findings of fact, including that the child was conceived as the result of sexual intercourse occurring between the parties in North Carolina, that defendant received proper notice of the action and was capable of paying child support of $95 per month and $100 per month on arrears. The court concluded as a matter of law that it had jurisdiction over the action and all parties, that defendant was the father, was obligated to provide reasonable continuing child support and was obligated to reimburse North Carolina for past-paid public assistance. Robeson County by and through its Child Support Enforcement Agency ex rel. Hazel Thompson v. Carlos L. Santiago and John D. Baker Jr., no. 99 CVD 893 (Robeson County District Court, N.C., July 9, 1999). (Appendix C.)

On May 11,2000, pursuant to the UIFSA, the RCEU, acting on behalf of Hazel Thompson, registered the North Carolina support order in Dauphin County. See 23 Pa.C.S. §7601. The registered order indicated that defendant was obligated to pay $195 per month in child support and owed accrued arrears of $6,931.50 (as of January 31, 2000). Defendant was notified about the North Carolina order by certified mail on May 17, 2000. 23 Pa.C.S. §7605. On June 8,2000, defendant filed a motion in this court seeking to dismiss the action or open judgment on the basis that the North Carolina court had lacked personal jurisdiction over him. 23 Pa.C.S. §7607(a)(1). He averred he did not receive service (notice) of the North Carolina proceeding and first became aware of the action in December 1999, when his credit report showed a judgment for back support. Defendant also averred that the child was not conceived in North Carolina, that he had never lived there and that he had no connection with that state.

On July 10, 2000, after plaintiff failed to respond to a rule to show cause, this court entered an order, upon defendant’s motion to make the rule absolute, granting defendant’s motion to open judgment. On July 13 and July 17,2000, defendant filed demands for de novo hearings regarding the validity of the registered order. A hearing was held August 3, 2000, wherein defendant presented the only testimony. Plaintiff did not appear but was represented, through RCEU, by local counsel. Defendant testified that he is a lifelong resident of Harrisburg, Dauphin County, and has never been to North Carolina. (Pa. hrg. N.T. 8.) He claimed to have met plaintiff in Harrisburg on one occasion in July 1981, approximately nine months prior to Seneca’s birth, when she was visiting from North Carolina. (Pa. hrg. N.T. 9-10.) He admitted having sexual intercourse with her during her visit. (Pa. hrg. N.T. 11.) Following the hearing, I took the matter under advisement and following the transcription of the de novo hearing, the parties submitted briefs. In addition, pursuant to UIFSA procedure, I requested and received the relevant North Carolina files. 23 Pa.C.S. §7317.

LEGAL DISCUSSION

I.

It is beyond dispute that the North Carolina court needed personal jurisdiction over defendant in order to adjudicate the paternity/support action. The North Carolina Supreme Court has held that since a paternity judgment “necessarily fixes upon the adjudicated father a personal obligation for the support of the minor child,” it is a proceeding in personam, noting “the extremely harsh and unfair consequences of an erroneous judgment.” Brondum v. Cox, 232 S.E.2d 687, 692-93 (N.C. 1977). (citation omitted) See also, Johnson v. Johnson, 188 S.E.2d 711 (N.C. App. 1972) (court must have personal jurisdiction over the defendant in an action for child support). The determination of whether a North Carolina court can properly exercise personal jurisdiction over a nonresident defendant involves a two-part inquiry. First, the North Carolina long arm statute must permit the exercise of personal jurisdiction. Second, the exercise of personal jurisdiction must comport with the due process clause of the Fourteenth Amendment of the United States Constitution. Filmar Racing Inc. v. Stewart, 541 S.E.2d 733 (N.C. App. 2001).

The North Carolina long arm statute permits the exercise of personal jurisdiction over a nonresident when the defendant is properly served and there exists a statute which specifically confers personal jurisdiction over the person. N.C.G.S. §§l-75.3(b) and 1-75.4(2). North Carolina exercised personal jurisdiction over defendant under two statutes — a paternity law and the North Carolina UIFSA — -which specifically confer jurisdiction over a nonresident or non-present defendant in a paternity/ support action where the putative father has engaged in sexual intercourse in North Carolina and the child may have been conceived by that act of intercourse. N.C.G.S. §52C-2-201(6) and §49-17(a). Service of process over a nonresident must be made in accordance with the North Carolina Rules of Civil Procedure, Rules 4(j) or Rule 4(jl). N.C.G.S. §1-75.6. Rule 4(j) permits service of the summons and complaint upon a natural person by registered or certified mail, return receipt requested, addressed and delivered to the party to be served. N.C.G.S. §1A-1, Rule 4(j). Under North Carolina law, service by registered mail is deemed reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections, and therefore complies with due process requirements. Chadbourn Inc. v. Katz, 208 S.E.2d 676 (N.C. 1974).

Assuming the long arm statute is satisfied, the inquiry becomes whether the defendant had sufficient minimum contacts with North Carolina so as not to offend due process requirements. Harris v. Harris, 410 S.E.2d 527, 531 (N.C. App. 1991). The existence of minimum contacts “depends upon ... a sufficient connection between the defendant and the forum State to make it fair to require defense of the action in the forum.” Kulko v. Superior Court of California, 436 U.S. 84, 91 (1978).

The UIFSA specifically permits a defendant in the state receiving and certifying a UIFSA order to raise the defense of lack of personal jurisdiction by the issuing court, as follows:

“Section 7607. Contest of registration or enforcement.

“(a) Defenses. — A party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving any of the following defenses:

“(1) The issuing tribunal lacked personal jurisdiction over the contesting party. . . .” 23 Pa.C.S. §7607. Compare, Barr v. Barr, 749 A.2d 992 (Pa. Super. 2000).

Pennsylvania adopted the UIFSA to provide for the interstate registration and enforcement of modifiable support obligations. See Clark v. Clark, 714 A.2d 427, 430 (Pa. Super. 1998). UIFSA, and its predecessors, address interstate enforcement of support orders. While each state must give “full faith and credit to the . . . judicial proceedings of every other state” under Article IV, Section 1 of the United States Constitution, this provision applies only to final orders. Since child and spousal support orders are modifiable, they are considered non-final orders not subject to the full faith and credit clause. Id. (citing Schoenfeld v. Marsh, 418 Pa. Super. 469, 475, 614 A.2d 733,736 (1992)). Under UIFSA, however, once a foreign support order is registered in the Commonwealth, it is entitled to statutorily-based “faith and credit” and must be enforced as if it had been issued here. Id. (citing 23 Pa.C.S. §7603). On the other hand, a paternity finding, as well as a decision regarding the amount of past due arrearages, are final orders entitled to constitutionally-based full faith and credit in Pennsylvania. Chrzanowski v. Chrzanowski, 325 Pa. Super. 298, 303-304, 472 A.2d 1128, 1131 (1984). Under the UIFSA, the nonregistering party must receive notice of the registration and is provided a mechanism to contest the validity or enforcement of the registered order. Id. (citing 23 Pa.C.S. §7605-7606). Defendant, properly notified of the certified North Carolina judgment, has contested its validity.

II.

Initially, we address plaintiff’s argument that defendant should have litigated the lack of notice and personal jurisdiction questions, as well as the merits, in North Carolina. Kulko v. Superior Court, supra. Defendant was fully within his rights, however, in waiting to attack the patemity/support judgment in Pennsylvania as clearly authorized not only under UIFSA, but also Pennsylvania law in general, First Fidelity Bank N.A. v. Standard Machine & Equipment Company, 398 Pa. Super. 607, 611, 581 A.2d 629, 631 (1990), alloc. denied, 527 Pa. 593, 588 A.2d 914 (1991); Joshi v. Nair, 418 Pa. Super. 448, 614 A.2d 722 (1992), and federal law, Insurance Corp. of Ireland Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694,706 (1982) (“A defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding.”). Accordingly, we address defendant’s collateral attack on the North Carolina judgment.

III.

As set forth above, the North Carolina judgment is entitled to both constitutionally- and statutorily-based full faith and credit. “However, we have a corollary duty — equally as great — to protect our citizens from an abuse of that constitutional provision by inquiring carefully and thoroughly into the jurisdiction of the courts of a sister state to enter judgments affecting the rights of our citizens.” Commonwealth ex rel. Barker v. Barker, 160 Pa. Super. 263, 265, 50 A.2d 739,740 (1947). Thus, a state court judgment need not be given full faith and credit by sister states as to parties or property not subject to the jurisdiction of the court that rendered it or without notice and a fair opportunity to be heard. Durfee v. Duke, 375 U.S. 106, 109 (1963); Everson v. Everson, 494 Pa. 348, 361, 431 A.2d 889, 895-96 (1981); Barnes v. Buck, 464 Pa. 357, 364, 346 A.2d 778, 782 (1975); Chrzanowski v. Chrzanowski at 304, 472 A.2d at 1131. Nevertheless, our Supreme Court has recognized that there is a presumption of validity attached to the acts of a foreign court concerning its jurisdiction to act and the regularity of its proceedings when it purports to act on the merits of a case. Barnes v. Buck, 464 Pa. 357, 364, 346 A.2d 778, 782 (1975). A foreign judgment constitutes “a conclusive adjudication of everything involved therein except the jurisdictional facts on which it is founded.” Chrzanowski at 304, 472 A.2d at 1131 (citing Stambaugh v. Stambaugh, 458 Pa. 147, 151, 329 A.2d 483, 485 (1974)). “While a recital in a foreign decree of the jurisdictional facts necessary to its universal validity is not conclusive outside the state of its origin, Thompson v. Whitman, [85 U.S. 457,] 18 Wall. 457, 21 L.Ed. 897, the decree is prima facie valid and the burden is on the party attacking it to show by a preponderance of the evidence that jurisdiction was in fact lacking. Com. ex rel. Cronhardt v. Cronhardt, 127 Pa. Super. 501, 193 A. 484.” Commonwealth ex rel. Meth v. Meth, 156 Pa. Super. 632, 637-38, 41 A.2d 752, 755 (1945); see 23 Pa.C.S. §7607(a)(l) (under UIFSA defendant carries the burden of proof); see also, Romero v. Mattioli Construction Co., 193 Pa. Super. 90, 94, 163 A.2d 671, 673 (1960) (“the tendency has been strong to open the door to evidence” going to the court’s jurisdiction and thus the party attacking the foreign judgment is permitted to contradict the foreign court record regarding jurisdictional facts). The presumption of the validity of foreign judgments falls as soon as credible evidence is introduced to contradict it. Thys Co. v. Harvard Industries Inc., 205 Pa. Super. 472, 210 A.2d 913 (1965).

However, where a sister state has “fully and fairly litigated” the jurisdictional issue, and has finally decided the jurisdictional question, a second state may not reexamine the question but must give the judgment of the first state full faith and credit, even if the jurisdictional determination is erroneous. Underwriters National Assurance Co. v. North Carolina Life and Accident and Health Ins. Guar. Ass’n, 455 U.S. 691, 706-707 (1982); Durfee v. Duke at 111; Morris Lapidus Associates v. Airportels Inc., 240 Pa. Super. 80, 85-86, 361 A.2d 660, 663 (1976); Connellsville Township Supervisors v. Connellsville, 14 Pa. Commw. 532, 536, 322 A.2d 741, 742 (1974). This standard was explained by the United States Supreme Court in Durfee v. Duke as follows:

“[Wjhile it is established that a court in one state, when asked to give effect to the judgment of a court in another state, may constitutionally inquire into the foreign court’s jurisdiction to render that judgment, the modem decisions of this court have carefully delineated the permissible scope of such an inquiry. From these decisions there emerges the general rale that a judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.

“With respect to questions of jurisdiction over the person, this principle was unambiguously established in Baldwin v. Iowa State Traveling Men’s Assn., 283 U.S. 522. There it was held that a federal court in Iowa must give binding effect to the judgment of a federal court in Missouri despite the claim that the original court did not have jurisdiction over the defendant’s person, once it was shown to the court in Iowa that that question had been fully litigated in the Missouri forum. ‘Public policy,’ said the court, ‘dictates that there be an end of litigation; that those who have contested an issue shall be bound by the results of the contest, and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he had submitted his cause____’ ” Id. at 111. (emphasis added)

Furthermore, the requirements of full faith and credit and res judicata apply as well where a party to a foreign judgment did not fully litigate the jurisdictional issue but was nevertheless given the opportunity to raise the matter and it was within the scope of the prior proceeding. Underwriters National Assurace Co. at 710; Sherrer v. Sherrer, 334 U.S. 343 (1948) (divorce court’s finding of jurisdiction was res judicata and entitled to full faith and credit in Massachusetts where husband had appeared and participated in a Florida divorce proceeding but failed to raise the jurisdictional question). Under such circumstances, the defendant waives raising the issue collaterally. See Cairns v. Cairns, 741 A.2d 800, 802 (Pa. Super. 1999) (father could not collaterally attack, in a Pennsylvania court, Oregon’s personal jurisdiction over him in a child support action where he had opportunity to raise issue by appearing in Oregon UIFSA proceedings); Chrzanowski, 325 Pa. Super. 298, 472 A.2d 1128 (father precluded from relitigating paternity issue in Pennsylvania where issue was finally litigated in Virginia).

rv.

Thus, our inquiry is whether the North Carolina court’s ex parte proceeding constituted a full and fair litigation of the jurisdictional issues, including notice. To decide issues related to North Carolina’s exercise of personal jurisdiction over defendant, we look to the law of North Carolina. First Fidelity; Joshi v. Nair, supra.

With regard to notice, the North Carolina Supreme Court has stated that “when a party against whom a default judgment was entered subsequently challenges the validity of the original proceeding on the grounds that he did not receive adequate notice, the reviewing court ordinarily must examine the underlying facts in the record to determine if they support the conclusion that the notice given of the original proceeding was adequate.” Boyles v. Boyles, 302 S.E.2d 790, 793 (N.C. 1983). Although the North Carolina judgment was technically not entered as a default judgment, it was nevertheless entered upon an ex parte hearing and thus did not constitute a full and fair litigation of the issues, a conclusion discussed in greater detail, infra. Accordingly, it is appropriate to examine the underlying record to determine if notice was adequate.

The North Carolina record provided to this court, contained a return receipt signed in the name of “Carlos Santiago.” “A return of process, including an acceptance of service, ‘is strong or at least prima facie evidence of the facts stated therein,’ however, ‘it is not conclusive and may be rebutted or impeached’ by clear, unequivocal, and convincing evidence. ‘The return may be attacked by the oral testimony of the defendant.’ ” Latimer v. Latimer, 522 S.E.2d 801, 802 (N.C. App. 1999). (citations omitted) Defendant testified at the de novo hearing before this court that he did not receive service. However, this court has compared the signature contained on the North Carolina return receipt with the “Carlos Santiago” signature provided on the return receipt of the registered Dauphin County support order and found them to be nearly identical. (Appendix D.) Thus, defendant failed to sufficiently rebut the evidence that he was properly served with a copy of the summons and complaint via certified mail.

With regard to personal jurisdiction, the North Carolina Supreme Court requires that the initial court “fully and fairly litigate” the jurisdictional issue in order for the jurisdictional decision to be given full faith and credit in the second court. Boyles v. Boyles, supra (citing Underwriters Ntl. Assurance) and Hosiery Mills v. Burlington Industries Inc., 204 S.E.2d 834 (N.C. 1974) (citing Durfee v. Duke). Our research reveals that the question of whether an ex parte proceeding constitutes a full and fair litigation of jurisdictional issues has never been answered by the North Carolina courts. Generally, there are two categories of cases assessing full and fair litigation. The first is where the initial court enters a default judgment based upon defendant’s non-appearance. North Carolina courts have indicated that where the default judgment is later sought to be enforced in a second forum, the issue of whether the first court had personal jurisdiction over the defendant was not fully and fairly litigated and thus, a full proceeding on personal jurisdiction is appropriate in the second court. Security Credit Leasing Inc. v. D.J.’s of Salisbury Inc., 537 S.E.2d 227, 232 (N.C. App. 2000). In Security Credit, the plaintiff, a Florida corporation, sought to enforce a Florida default judgment in North Carolina which had been entered against defendant, a North Carolina corporation. Defendant sought to dismiss the enforcement petition arguing the Florida court lacked personal jurisdiction over it. The North Carolina trial court held a hearing and took evidence on the personal jurisdiction issue. It held, in a decision affirmed by the appellate court, that the Florida court had lacked personal jurisdiction noting that the issue had not been “fully and fairly litigated” there. Id. at 229-30. See also, Boozer v. Wellman, 343 S.E.2d 540 (N.C. App. 1986) (default judgment in first forum is not a full and fair litigation of whether a defendant received proper notice).

The second category of cases involve situations where the defendant actually litigated personal jurisdiction or had an opportunity to do so but failed. The defendant is clearly precluded in such cases from later mounting a collateral attack on the first court’s personal jurisdiction over him. (See cases cited supra.)

The ex parte proceeding involved here presents a situation somewhere in between a default judgment and a full hearing (or waiver thereof) of the jurisdictional issue.

Our research has revealed only a single case which has addressed a similar situation. Nickels v. York, 725 N.E.2d 997, 1003 (Ind. App. 2000), transfer denied, 741 N.E.2d 1258 (Ind. 2000). In Nickels, an original paternity judgment was entered against a nonresident defendant who had been duly notified but failed to appear. Both the paternity and underlying personal jurisdiction findings were based upon, among other evidence, the mother’s testimony the parties had sexual intercourse in Indiana around the time of conception. Defendant later filed a motion to set aside the paternity judgment arguing it was void since it had been entered without personal jurisdiction. What is of interest to this court is that in deciding the issue on appeal, the court equated the paternity judgment — entered following an ex parte proceeding — to a default judgment. Id. at 1003.

As Nickels indicates, the only reasonable conclusion is that the ex parte proceeding is not a full and fair litigation of the personal jurisdiction issue but one more equivalent to a default judgment. This conclusion is supported by case law which suggests that full and fair litigation requires that the defendant, or his or her representative, appear, participate and litigate the issue in the first court. The North Carolina Supreme Court in Hosiery Mills, supra, addressed, among other things, whether a jurisdictional issue had been “fully and fairly litigated” in deciding whether to grant full faith and credit to a New York arbitration proceeding involving a North Carolina resident. While acknowledging the res judicata effect of prior foreign judgments, the court explained as follows:

“There is no doubt of the general proposition that in a suit upon a judgment the jurisdiction of the court rendering it over the person of the defendant may be inquired into.

“Of course, jurisdiction is, itself, an issue which may have been fully litigated in, and determined by, the court which rendered the judgment thereafter pleaded as a cause of action, or as a defense, in a court of another state, as where the defendant therein was actually present in the first court and raised and litigated therein a question concerning the fact and validity of the service of its process upon the defendant.” Id. at 840. (emphasis added)

The North Carolina court, quoting from the United States Supreme Court in Durfee v. Duke, stated that with regard to issues of personal jurisdiction:

“We see no reason why this doctrine [of res judicata] should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he had submitted his cause.” Id. at 840-41 (citing Durfee at 111; quoting Baldwin, supra at 525-26). (emphasis added)

The North Carolina Supreme Court ultimately held that New York lacked personal jurisdiction noting that the North Carolina resident had not appeared, participated nor was represented in the New York proceeding. Id. at 841.

Similarly, the Supreme Court in Baldwin stated that a defendant must “have its day in court” for the jurisdictional finding in one court to be given res judicata effect in the second court. On that issue the court held as follows:

“The special appearance gives point to the fact that the respondent entered the Missouri court for the very purpose of litigating the question of jurisdiction over its person. It had the election not to appear at all. If, in the absence of appearance, the court had proceeded to judgment and the present suit had been brought thereon, respondent could have raised and tried out the issue in the present action, because it would never have had its day in court with respect to jurisdiction.” Baldwin at 525. (citations omitted) (emphasis added) See also, the Restatement (Second) of Judgments §10(2) (foreign judgments determining jurisdictional issues are to be given res judicata effect only after a defendant has objected to personal jurisdiction in the first court). Thus, under Hosiery Mills; Durfee v. Duke and Baldwin, an issue is “fully and fairly litigated” where a party “has its day in court,” i.e., where “one voluntarily appears, presents his case and is fully heard.” As such, the North Carolina judgment as to personal jurisdiction is not res judicata and this court must accordingly exercise its duty “by inquiring carefully and thoroughly” into the issue. Commonwealth ex rel Barker, supra.

V.

As set forth above, the North Carolina decree is prima facie valid and the burden is on the defendant to show by a preponderance of the evidence that jurisdiction was in fact lacking. Commonwealth ex rel. Meth v. Meth, supra; 23 Pa.C.S. §7607(a)(1). In reviewing the North Carolina judgment, we note that the trial court made a factual finding that the child was conceived as the result of sexual intercourse occurring between the parties in North Carolina. Since no evidence supporting these facts was presented during the ex parte proceeding, this finding was necessarily based upon the plaintiff’s verified complaint in which the RCEU, upon plaintiff’s information, alleged the existence of those jurisdictional facts. In order for the North Carolina court to have entered judgment against defendant — as a non-appearing, properly served party — the plaintiff was required to prove jurisdiction either by asserting jurisdictional facts in a verified complaint or by affidavit or other evidence. N.C.G.S. §1-75.11. See North Brook Farm Lines Inc. v. McBrayer, 241 S.E.2d 74, 78 (N.C. App. 1978). Thus, the North Carolina verified complaint established sufficient pdma facie proof of jurisdiction upon which the North Carolina court could make its finding of jurisdiction (in an unchallenged action).

Of course, such a finding is not conclusive since the issue of personal jurisdiction in the ex parte proceeding was not fully and fairly litigated, as discussed supra. In a sense, the issue was partly litigated and, constitutionally speaking, the North Carolina judgment as to jurisdiction cannot become res judicata until that occurs. Defendant’s challenge to jurisdiction in Pennsylvania represents the completion of litigation of the jurisdictional question. Since our focus shifts to the Pennsylvania action, we must decide whether Pennsylvania or North Carolina procedure applies to the jurisdictional attack mounted here. The Pennsylvania UIFS A instructs we must apply the procedural and substantive law, in-eluding the rales on choice of law, generally applicable to similar proceedings originating in this state. 23 Pa.C.S. §7303(1).

Under Pennsylvania procedure, where a defendant challenges an action for lack of personal jurisdiction, the defendant, as the moving party, bears the burden of supporting its objections. See Scoggins v. Scoggins, 382 Pa. Super. 507, 513, 555 A.2d 1314, 1317 (1989). “Once the plaintiff has produced some evidence to support jurisdiction, the defendant must come forward with some evidence of his own to dispel or rebut the plaintiff’s evidence.” Id. at 514, 555 A.2d at 1318. (citations omitted) The moving party may not sit back and rely upon bare allegations set forth.in his objections. Id. “Only when the moving party has properly raised the jurisdictional issue does the burden of proving jurisdiction fall upon the party asserting it.” Id. (citations omitted)

Defendant here met his initial burden by filing a motion to dismiss the registered foreign support order whereby he asserted the child was not conceived in North Carolina and that he had no connection to North Carolina. Since plaintiff did not file a response to defendant’s motion, the burden shifted to her to prove the existence of North Carolina personal jurisdiction. At this point, there were insufficient facts of record for this court to determine jurisdiction wherein defendant denied the child had been conceived in North Carolina but the North Carolina judgment recited that fact. Where there is insufficient evidence to decide the jurisdictional issue, the court must require the parties to provide evidence by ordering depositions, interrogatories or an evidentiary hearing. Ambrose v. Cross Creek Condominiums, 412 Pa. Super. 1, 12, 602 A.2d 864, 869 (1992). (citations omitted) Defendant sought an evidentiary hearing at which he presented the only evidence as to jurisdictional facts.

Defendant testified before this court that he has never in his life been to North Carolina. In light of the fact that the plaintiff did not appear in the Pennsylvania proceedings to rebut this evidence and presented no other jurisdictional evidence beyond allegations in the North Carolina complaint, she failed to meet her burden of proving that the North Carolina court had personal jurisdiction over defendant when it entered the paternity/support judgment against him.

Accordingly, we enter the following:

ORDER

And now, April 9, 2001, defendant’s motion to dismiss this court’s May 11, 2000 order of registration and confirmation of the July 9, 1999 North Carolina judgment, is hereby granted.


author:
GOODHEART, S.J.,
     GOODHEART, J.,

text:
    Rachlin v. Edmison

      March 14, 2001

      Bernard W. Smalley, for plaintiff.

      Kathleen M. Kramer, for defendant.
   GOODHEART, S.J.,

SUPPLEMENTAL OPINION OF THE COURT SUR DISMISSALS OF DEFENDANTS EDMISON, FOCUS, PRINCE AND TRI-COUNTY

INTRODUCTION

On November 14, 2000, I issued an opinion in support of my decisions to grant the motion for compulsory nonsuit of defendant 20/20 Laser Centers — by that time, the sole remaining defendant in this case — and to deny the plaintiff’s ensuing motion for post-trial relief.

This supplemental opinion is being issued to complete the record — and to thereby aid the Superior Court in its disposition of this case — by summarizing the facts supporting dismissal of the case as to the other defendants, even though those rulings were made by other judges of this court.

My decision to issue this supplemental opinion is not meant to suggest that my colleagues could not fully and completely explain their decisions. Rather, because I presided over the actual trial of the case, and thus — having recently issued an opinion — likely have the most familiarity with the matter, it seemed counterproductive to ask three different colleagues to review the file so that they could explain decisions that they made as much as three years previously, given that the correctness of those decisions is readily apparent from the record.

DISCUSSION

The Court Lacked Jurisdiction Over Defendants Edmison and Focus

By separate orders dated February 9, 1998 and April 3, 1998, the Honorable Pamela Pryor Dembe sustained preliminary objections filed by defendants Edmison and Focus, respectively, and dismissed those defendants from the case.

According to the objections, Focus is a Canadian corporation, and Edmison a Canadian citizen; neither of those defendants has ever conducted any business in Pennsylvania, or indeed, in the United States generally.

Focus and Edmison were served in Canada, by “long-arm” means; though service of process issued by a Pennsylvania court may be made outside the Commonwealth when sufficient “minimum contacts” exist between the defendant and the location of the forum to make an exercise of jurisdiction reasonable.

The plaintiff traveled to Focus — located in Ottawa, Ontario, Canada — for the surgery that Dr. Edmison performed, and all of the complained-of conduct on the part of those defendants occurred — if anywhere — only in Canada.

The plaintiff did not respond to Edmison’s objections. Though the plaintiff did respond to the objections filed by Focus, she apparently did so only because the form of proposed order submitted by Focus was overly broad; in her memorandum of law, the plaintiff acknowledged that she did not oppose dismissal of Focus from the case for lack of personal jurisdiction, and that she had not previously opposed dismissal of Dr. Edmison from the case on the same basis.

Based upon the uncontradicted facts set forth in the affidavits submitted by Dr. Edmison and Focus (and given the plaintiff’s consent), the dismissal of these two defendants was unquestionably proper.

The Plaintiff’s Expert Reports Were Insufficiently Precise To Establish Negligence on the Part of Defendant Prince or Defendant Tri-County

The initial report of the plaintiff’s expert, Wayne F. Bizer D.O., dated April 27, 1999, read — in pertinent part — as follows:

“I believe, to a reasonable degree of medical certainty, subject to the completion of depositions, that there could be a deviation in the standard of care by Dr. Prince in several aspects. First, it is possible that Dr. Prince deviated from the standard of care by performing a [photo-refractive keratotomy vision] enhancement on Ms. Rachlin. Second, it is possible that Dr. Prince deviated from the standard of care by failing to fully and accurately inform consulting physicians of Ms. Rachlin’s postoperative treatment, including the administration of postoperative eye drops.

“I believe that Dr. Prince’s possible deviations in the standard of care resulted in Ms. Rachlin’s impaired vision, as well as the inability to correct her visual acuity with glasses or contact lenses. I also believe that it is possible at this point that Dr. Prince’s deviations in the standard of care increased Ms. Rachlin’s risk of suffering visual impairments____” (Bizer report, April 27,1999, pp. 1-2; emphasis added.)

As shown by the underlined passages, Dr. Bizer’s report was completely equivocal on the issue of negligence; at best, Dr. Bizer found that Dr. Prince’s care had possibly been inadequate. Even though the threshold for admission of expert testimony in Pennsylvania’s courts has (deliberately) been set quite low, Dr. Bizer’s first report utterly fails to reach it, notwithstanding that the report talismanically states that Dr. Bizer’s conclusions have been reached “to a reasonable degree of medical certainty.

Dr. Bizer’s second report, dated July 7,1999, was addressed to the negligence of defendant 20/20 (and its principal, Dr. George White, who was not a party to this case); it contained no criticism of Dr. Prince or Tri-County whatsoever. Interestingly, the first report had mentioned Dr. White only in passing, and made no criticism of his care.

Based upon these reports, the Honorable Sandra Mazer Moss correctly concluded that the plaintiff would be unable to make out a case of negligence against defendants Prince and Tri-County, and properly granted the motion for summary judgment of Dr. Prince and TriCounty, by order dated November 15, 1999.

The Plaintiff’s Claims Against Defendant 20/20 Arising From the First Surgery Were Properly Dismissed

In June of 1998, defendant 20/20 sought — and in July 1998 received — leave to file an amended answer, new matter and cross-claim, to plead the terms of a release allegedly given to 20/20 by the plaintiff in August 1995.

In the memorandum of law that accompanied her response in opposition to 20/20’s motion for leave to amend, the plaintiff admitted that she “[did] not intend to pursue her claims in connection with the August 25, 1995 surgery performed by Dr. Edmison in Ontario [and that her] claims against... defendant 20/20 Laser Centers pertain to the May 17, 1996 surgery in Pennsylvania.” (Plaintiff’s memorandum of law, filed July 7,1998, at 2.)

Even without considering these admissions, the plaintiff’s complaint does not contain allegations sufficient to sustain a claim of “corporate negligence” against defendant 20/20, as discussed in my earlier opinion in this matter. It also appears that the plaintiff lacked evidence to show that any negligence that occurred before the time of the second surgery could properly be attributed to defendant 20/20 on a theory of respondeat superior.

November 14, 2000

There are thus multiple, independently sufficient reasons why my colleague, the Honorable Nitza I. Quiñones-Alejandro granted the motion of defendant 20/20 for partial summary judgment.

CONCLUSION

For the reasons set forth above, all of the court’s rulings in this matter were correct.

I therefore respectfully renew the suggestion that my decision to deny post-trial relief must be affirmed.

GOODHEART, J.,

INTRODUCTION

By the time that this case was assigned to me for trial, all of the plaintiff’s claims except those asserted against defendant 20/20 Laser Centers had been dismissed by other judges of this court.

After presentation of the plaintiff’s case in chief, I granted a defense motion for compulsory nonsuit and dismissed the plaintiff’s remaining claims; this opinion addresses the post-trial motions that followed.

BACKGROUND

In the spring of 1995, the plaintiff (a long-term contact lens wearer) was referred to Harleysville Eye Associates by her regular eye doctor, because she had been experiencing “redness, discomfort and itching in both eyes with contact lenses” (complaint, ¶19), and wanted to be evaluated for laser surgery that would eliminate her need for corrective lenses.

At Harleysville, she was examined by George E. White III, D.O., who referred her to defendant Tri-County Eye Physicians and Surgeons, so that defendant Prince could perform several corneal topographies on her eyes, a necessary prerequisite to the laser procedure. After the topographies were done, the plaintiff underwent bilateral photo-refractive keratotomy, on August 25, 1995, in Ottawa, Ontario, Canada, which was performed by defendant Edmison at his Focus Eye Centre there.

After the first surgery, the plaintiff returned to the care of Dr. White at Harleysville, but about six months later— believing that her eyesight had not been sufficiently corrected by the first procedure she came under the care of Dr. Prince, and in May of 1996, he performed a second Laser PRK procedure on the plaintiff at the offices of 20/20 Laser Centers, in Plymouth Meeting, PA.

According to the plaintiff’s complaint, the second PRK procedure significantly worsened her vision, and on August 21, 1997, she commenced the instant lawsuit against Edmison, Focus, Prince, Tri-County and 20/20 Laser Centers.

Significantly, the plaintiff’s complaint does not allege that her injuries resulted from the care that she received following the first procedure and before the second, and neither Dr. White nor Harleysville were named as defendants in the action.

The plaintiff requested — and obtained — -Dr. White’s treatment records in April 1998. In his letter to Dr. White requesting those records, the plaintiff’s counsel specifically reassured Dr. White “that [he was] not considered a defendant in this action....”

The initial report of the plaintiff’s expert, Wayne F. Bizer D.O., dated April 27, 1999, placed the blame for the plaintiff’s unsatisfactory outcome on the treatment rendered to her by Dr. Prince and Tri-County following the first laser treatment, up to and including Dr. Prince’s decision to perform the second surgery. This report mentioned Dr. White only in passing, and made no criticism whatsoever of his care.

On May 25,1999, the plaintiff took Dr. White’s deposition. Dr. White was not represented by counsel.

By the time that the case was called for trial, all claims against defendants Prince and Tri-County had been dismissed (as had all claims against TLC arising from the first surgery), and Dr. Bizer had submitted a second report, in which he — for the first time — blamed Dr. White for the plaintiff’s injuries.

TLC (by this time, the sole remaining defendant) filed motions in limine, seeking to preclude evidence of negligence on the part of Dr. White, or of TLC itself. I granted both motions, and prevented Dr. Bizer from testifying.

At the close of the plaintiff’s case in chief, I granted the defendant’s motion for a compulsory nonsuit; the instant timely post-trial motion followed.

DISCUSSION

Though the Rules of Civil Procedure permit a complaint to be amended at any time — even during trial — to conform to the evidence adduced, provided that the amendment does not enlarge or alter the substance of the plaintiff’s claims, by the time that Dr. Bizer submitted his second report, the statute of limitations had long since run on any care rendered to the plaintiff by Dr. White.

The plaintiff thus could not amend her complaint to assert a claim against Dr. White directly, and — indeed— she did not even request leave to do so.

The plaintiff claims, however, that Dr. Bizer’s report was sufficient to support her claims against TLC based upon “corporate negligence” as defined in Thompson v. Nason Hospital, 370 Pa. Super. 115, 535 A.2d 1177 (1988).

The plaintiff also contends that paragraph 46 of her complaint contains allegations sufficient to support Dr. Bizer’s proposed testimony, because the jury should have been allowed to decide whether Dr. White was acting as an agent of TLC at the time that he rendered allegedly-deficient care to the plaintiff. That may be true, but Dr. Bizer’s second report contained no analysis of the independent duty owed to the plaintiff by TLC, nor any specific examples of how that duty had been breached.

“Corporate liability” as defined in Thompson requires a plaintiff to prove negligence in one of four enumerated areas; it is not merely a substitute for liability based upon agency in cases where agency cannot be proven. Because Dr. Bizer’s second report does not set forth specific breaches of any duty owed to the plaintiff by TLC, my decision to preclude his testimony as to “corporate liability” was appropriate.

In Alumni Association v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987), a Superior Court panel set forth the basic pleading requirements in cases where the liability of a principal turns upon tortious acts of an alleged agent:

“While it is unnecessary to plead all the various details of an alleged agency relationship, a complainant must allege, as a minimum, facts which: (1) identify the agent by name or appropriate description; and (2) set forth the agent’s authority, and how the tortious acts of the agent either fall within the scope of that authority, or if unauthorized, were ratified by the principal.” Id. at 605, 535 A.2d at 1100.

Given that Dr. White’s name appears nowhere in the plaintiff’s complaint, and that the plaintiff maintained— as late as April 1998 — that Dr. White was not considered a defendant in this case, it is not “clear from the complaint____” [Perridge v. Horning, 440 Pa. Super. 31, 44, 654 A.2d 1183, 1189 (1995)] that the reference to TLC’s “agents” in paragraph 46 of the complaint was intended to include Dr. White.

For that reason alone, my decision to prevent Dr. Bizer from testifying as to Dr. White’s negligence was proper, but this opinion would not be complete without a discussion of the inherent unfairness — whether intended or otherwise — of the last-minute change in the plaintiff’s theory of this case.

At the time that Dr. Bizer issued his first report, on April 27, 1999, Dr. White had not yet been deposed, though Dr. Bizer did review Dr. White’s records during the preparation of that report. Dr. White’s deposition was taken on May 25, 1999. It was not until July 7, 1999— when Dr. Bizer issued his second report — that Dr. White’s care was called into question. Shortly thereafter — based upon the second report — Dr. Prince and his practice, TriCounty, obtained dismissal of all claims against them, which left the plaintiff with an expert report that did not attribute the plaintiff’s injuries to negligence on the part of TLC, the sole remaining defendant.

The plaintiff was thus forced into the position of claiming not only that Dr. White — who had not been previously identified by name or description as a negligent actor — had caused the plaintiff’s injuries, but that he had done so in his capacity as an agent of TLC. This stretched the allegations of the plaintiff’s complaint past the breaking point, resulting in the preclusion orders and the ensuing compulsory nonsuit.

It also appears, from the parties’ post-trial submissions, that Dr. White had agreed to indemnify TLC from any claims resulting from his own negligence. Because Dr. White was never a defendant in this case — and was, in fact, affirmatively reminded of that fact by the plaintiff’s counsel on at least one occasion, several months after the case was filed- — -allowing the plaintiff to proceed against TLC based upon Dr. White’s alleged negligence would have potentially placed Dr. White in the unhappy position of being held liable for his own negligence without having had an opportunity to defend himself.

I am unwilling to assume that TLC’s defense of the action would have sufficiently inured to the benefit of Dr. White to have eliminated the obvious prejudice to Dr. White, had the case gone to trial. After all, if TLC lost the case and was forced to pay a judgment, TLC would be able to look to Dr. White for reimbursement; under those circumstances, one might well question whether TLC would defend Dr. White as vigorously as it would defend itself.

CONCLUSION

For all of the reasons set forth above, my pretrial rulings were correct; a compulsory nonsuit was thus the only proper outcome. I, therefore, respectfully suggest that my decision to deny post-trial relief should be affirmed.

      . As stated above, Dr. Bizer’s first report blamed (to the extent that its equivocal language could be so read) the plaintiff’s impaired vision entirely on the second surgery, which was performed by Dr. Prince and Tri-County. Dr. Bizer’s second report blamed the care provided by Dr. White after the first surgery and before the second, and characterized Dr. White as 20/20’s agent, but the plaintiff’s complaint contained no such allegations (in fact, the complaint never mentioned Dr. White or the care that he rendered at all) and by this time, the statute of limitations to add such claims had long since run. Dr. Bizer found no fault, in either report, with the care of defendants Edmison and Focus.

      . Laser PRK is a procedure that was popular in the mid-1980s to improve the vision of eyeglass- or contact-lens-wearer to the point where corrective lenses would no longer be required. It has since been largely supplanted by Lasik®, a similar type of procedure.

      . At the time, Laser PRK had not been approved for use in the United States.

      . By this point, the Laser PRK procedure had become available in the United States.

      . Dr. Bizer’s first report was somewhat equivocal, but — because the plaintiff ultimately did not rely on it — I need not decide whether it provided an adequate basis for testimony.

      . Subparagraphs (f), (j), (k), (1), (m), (n) and (o) of paragraph 46 of the complaint arguably plead “corporate negligence.”

      . The pertinent portion of paragraph 46 of the complaint reads as follows:
      “(46) In the care and treatment of plaintiff, defendant, 20/20 Laser Centers, either individually, or acting through their agents, representatives, servants and/or employees was negligent in the following respects. ...”


author: CHESLOCK, J„

text:
    Rivera v. Lawrence

      November 8, 2001
    C.P. of Monroe County,
    no. 4325-1998.

      Edward R. Eidelman, for plaintiff.

      Michael Perry, for defendant Pocono Medical Center.

      Mark H. Scoblionko, for defendant Lawrence.
   CHESLOCK, J„

The plaintiffs filed a complaint that alleged, among other things, negligence on the part of Dr. Lawrence and Pocono Ob/Gyn Associates and Vicki Marsh regarding the August 16, 1995 visit to the clinic. On or about July 16, 2001, defendants filed a motion for summary judgment. Shortly thereafter, plaintiff filed a timely answer. This court heard arguments on the motion and now we are ready to decide the matter.

The relevant facts are as follows. Plaintiff first presented to Planned Parenthood of Northern New Jersey and was determined pregnant in March 1995. Sometime thereafter she moved to Pennsylvania. Plaintiff reported to Pocono Community Health Center for an examination on July 24, 1995, and a follow-up appointment on August 16, 1995. Dr. Lawrence saw her during the second visit. The clinic was typically staffed with nurse midwives. On Wednesdays, five local Ob/Gyn doctors would see patients of the clinic on a rotating basis. Patients were scheduled for either the second or third visit on a Wednesday so as to see a doctor. Dr. Lawrence saw patients at the clinic on August 16, 1995. The medical records of the plaintiff up to then, indicated “problems ... obesity ... unsure last menstrual period... borderline diabetes.” Upon evaluation of her record, including a glucose test, Dr. Lawrence did not deem plaintiff to be “exceptionally high risk” with respect to the pregnancy.

The party moving for summary judgment has the burden of demonstrating that no genuine issue of material fact exists. Drapeau v. Joy Technologies Inc., 447 Pa. Super. 560, 563, 670 A.2d 165, 167 (1996), allocatur denied, 546 Pa. 644, 683 A.2d 883 (1996), citing Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 204, 412 A.2d 466, 468-69 (1979). The record is viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996).

The party opposing summary judgment may not rest upon the mere allegations or denials of the pleadings but must file a response identifying: (1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced. Pa.R.C.P. 1035.3.

The court must ignore controverted facts in the pleadings and restrict its view to allegations in the pleadings that are uncontroverted and to material filed in support of and in opposition to a motion for summary judgment. Nationwide Mutual Insurance Co. v. Nixon, 453 Pa. Super. 70, 75, 682 A.2d 1310, 1313 (1996), allocatur denied, 548 Pa. 613, 693 A.2d 589 (1997). Summary judgment may be granted only where the right to it is free and clear from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989), citing Thompson Coal, 488 Pa. at 204, 412 A.2d at 468.

This court feels that the motion for summary judgment should be denied because we find a genuine issue of material fact exists for the following reasons:

(a) First, plaintiffs have met their burden of showing that a genuine issue of law exists as to the existence of a physician-patient relationship. The cases cited by defendants all refer to a physician who examines an individual at the request of a third party, typically an insurance company. For example, in a medical partnership a doctor not involved in the care or treatment of a certain patient has no duty to his partner, the negligent physician, except that arising out of partnership law. A “partnership” between a doctor and a health clinic differs in that only the doctor not the clinic can actually treat and examine the patient. Here, patients of the clinic were scheduled on Wednesdays expressly to see an obstetrician. That plaintiff was not a continuing patient of Dr. Lawrence is not dispositive. Instead, the obstetricians, albeit on a rotational basis, held themselves out to the patients who sought their care as the primary caregivers.

Furthermore, it is important to note that the rotating obstetricians here volunteered their service rather than being appointed as a matter of hospital regulation. Although the agreement to serve the clinic may have been a form of public service, the rotating physicians could still expect to benefit professionally in terms of future referrals by patients and nurses from the clinic. Whether or not the doctors were independent contractors or agents of the clinic, the patients reasonably believed the services rendered to be in the context of the whole pregnancy.

Under Pennsylvania law, a physician-patient relationship occurs where the physician is involved in the care and treatment of the patient. Promubol v. Hackett, 454 Pa. Super. 622, 686 A.2d 417 (1996). Although Dr. Lawrence only saw the plaintiff once, during that visit he was the exclusive administrator of care and treatment and, thus, came within the scope of the physician-patient relationship.

(b) Second, plaintiffs have established sufficient causation between the negligent acts of Dr. Lawrence averred by their experts and the resulting harm. The law in Pennsylvania regarding medical malpractice is well settled: Once a plaintiff has introduced evidence that the defendant’s negligent act or omission increased the risk of harm to a person in plaintiff’s position, and that the harm was in fact sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). Importantly, aplaintiff need not exclude every possible explanation and the fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve defendant from liability unless he can show that such other cause would have produced the injury independent of his negligence. Jones v. Montefiore Hospital, 494 Pa. 410, 416, 431 A.2d 920, 923 (1981). Once there is sufficient testimony to establish that (1) the physician failed to exercise reasonable care, (2) such failure increased the risk of physical harm to the plaintiff, and (3) such harm resulted, then it is a question properly left to the jury. Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990).

We shall discuss plaintiffs’ experts’ reports in turn. The first expert, Dr. Portman, is not an obstetrician but a neurologist. Dr. Portman suggested that the “pediatric and neurologic caregivers” failed to perform neurological work up for neonatal seizures. Further, Dr. Portman suggests that obstetric management should have been more vigorous, to shorten the exposure of the fetus to untreated oligohydramnios. This condition, he states, was present in the third trimester. Here, there is no specific negligence claim against the defendant, since the condition was known to be present in the third trimester but not before then.

On the other hand, the statements by Dr. Domnitz go directly to defendant’s conduct. More important, his report speaks to the link between the alleged negligent acts and the resulting harm: “In my medical opinion, the prenatal care given to Ms. Rivera deviated from accepted standards of practice . . . her poor dates, maternal obesity and history of diabetes should have classified her as high risk... Had the higher risk nature of the pregnancy been recognized and the gestational diabetes appropriately diagnosed, this patient would have routinely been offered more comprehensive antepartum testing.” The report therefore implies that failure to classify the patient as high risk based on her history was a factor in the harm that resulted during the last portion of the pregnancy. Dr. Dunn’s report contains similar language:

“In summary, it is my opinion with a reasonable degree of medical certainty that there was a deviation of obstetrical standard of care. This contributed to the cerebral infraction, microcephaly and seizure disorder of the infant. This was clearly a high risk pregnancy and if fetal assessment had occurred earlier a decrease in amniotic fluid would have been noted. If attention had been paid to the patient’s stated last menstrual period, there would have been a greater discrepancy in due date by ultrasound. The clinical exam evidenced by the patient’s decrease in weight and fundal height should have triggered further evaluation.

“It is my opinion within a reasonable degree of medical certainty that had antepartum screening occurred that this infant would have had a better outcome. It is further my opinion that failure to assess the fetus compromised the prognosis of the child.”

Thus, the clear and reasonable inference is that but for the failure to classify plaintiff as high risk, fetal assessment and further evaluation would have occurred and the decrease in amniotic fluid noted earlier, before delivery. In this way, the harm was foreseeable.

In conclusion, we find that the plaintiffs here have established a genuine issue of material fact. First, there is an issue as to the existence of a physician-patient relationship. Second, plaintiffs’ experts have averred negligence on the part of Dr. Lawrence sufficient to warrant a determination by the fact-finder, or jury.

ORDER

And now, November 8, 2001, defendant’s motion for summary judgment is hereby denied.

      . All the parties agree that the motion for summary judgment in favor of Vicki Marsh be granted.

      . The proof required for a prima facie showing is the kind alleged in the present case; that is, evidence from an expert or experts who will testify to a reasonable degree of certainty that the acts of the physician deviated from good and acceptable standards and that such deviation was a proximate cause of the harm suffered. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990).


author: DOERR, P.J.,

text:
    Majoris v. Robicks Auto Body and Auto Sales

      November 28, 2000
    C.P. of Butler County,
    no. 96-10472.

      Howard F Messer and Philip A. Fabiano, for plaintiffs.

      Raymond J. Conlon, for defendant.
   DOERR, P.J.,

This matter is before the court upon defendant Robicks Auto Body and Auto Sales’ motion for summary judgment.

Plaintiffs Michael Majoris and Barbara Majoris, commenced this action by a praecipe for writ of summons filed on May 30, 1996. On March 10, 1998, plaintiffs filed a complaint against defendant wherein they alleged that on May 31,1994, plaintiff-husband Michael Majoris, suffered personal injuries caused by defendant’s negligent repairs to their vehicle. Plaintiffs allege that in September of 1988, they took their 1985 Pontiac Fiero to defendant for repairs after the vehicle had been stolen and damaged. Plaintiffs claim that they contracted with defendant to perform repairs including, inter alia, removal, adjustment, replacement and/or repair of the forward mounted exhaust manifold, and replacement of the engine and the fire/heat shield. Plaintiffs further claim plaintiff-husband, Michael Majoris, told defendant to make sure the fire shield was put on. Plaintiffs claim that defendant failed to properly replace, repair, adjust or reinstall the fire/heat shield. Plaintiffs claim that as a result of defendant’s negligence, the vehicle caught on fire while it was in use by plaintiff-husband Michael Majoris, and that he fell and injured his hand and knee after exiting the burning vehicle in a panic. Plaintiffs seek damages in the nature of loss of income and impairment of future wages, medical expenses, and loss of consortium.

Defendant filed an answer and new matter on May 20, 1999. Defendant concedes that it performed repairs to plaintiffs’ Pontiac Fiero in September 1988, however, defendant denies that it contracted to perform any work on, or replace the fire/heat shield. Under its new matter, defendant asserts numerous defenses to plaintiffs’ claims. Defendant claims that plaintiffs’ cause of action is barred by the statute of limitations; is barred by the doctrine of comparative negligence; and that plaintiffs’ injuries are covered under the Pennsylvania Motor Vehicle Financial Responsibility Act. Defendant further avers that plaintiff-husband Michael Majoris’ injuries were preexisting conditions and that additional repairs had been made to the vehicle between September 1988 and May 1994.

Defendant filed a motion for summary judgment, and brief in support thereof, on July 26, 2000. Defendant claims that its duty was limited to the repair of the vehicle, which was done six years before the fire, and that the injury that occurred was not a foreseeable risk of the repairs. Defendant further claims that the repairs did not play a substantial factor in the injuries allegedly sustained by plaintiff-husband. According to defendant, there is no dispute as to the facts of the case and defendant is entitled to judgment as a matter of law.

Defendant filed a supplemental motion for summary judgment and brief in support thereof on August 17,2000. Defendant avers that plaintiffs will be unable to prove that defendant’s repairs were negligent because the evidence, namely the vehicle, has been spoiled at the hands of plaintiffs. Defendant claims that plaintiffs were responsible for preserving the car, however, it was destroyed without notice to defendant. Defendant claims it is prejudiced by the spoliation of the evidence. According to defendant, the court cannot reach the issue of negligence because plaintiffs cannot produce the vehicle allegedly negligently repaired. As such, defendant claims it is entitled to summary judgment.

With regard to the spoliation of the evidence issue, plaintiffs aver that they contacted defendant’s insurer to inspect the vehicle, however the insurer refused to inspect it. Plaintiffs further aver that defendant is not prejudiced by the fact that the vehicle is no longer available because there are photographs of the vehicle that show there was no fire shield installed. Further, plaintiffs aver that other evidence, including a report relative to the cause of the fire, is available to prove their claim. Additionally, plaintiffs aver that defendant’s supplemental motion for summary judgment is untimely, as defendant already filed a motion for summary judgment.

Rule 1035.2 of the Pennsylvania Rules of Civil Procedure provides that any party may move for summary judgment “after the relevant pleadings are closed, but within such time as not to unreasonably delay trial.” In this case, defendant filed a motion for summary judgment on July 26, 2000 and a supplemental motion for summary judgment less than one month later. While the supplemental motion for summary judgment was filed after the pretrial conference in this matter, the court finds that the filing of the same will not unreasonably delay the trial as the case is set for trial in January 2001. The court has no reason to believe the trial date will be delayed as a result of defendant’s supplemental motion for summary judgment.

“Summary judgment is appropriate only [when] no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.” See Stone v. York Haven Power Co., 561 Pa. 189, 198, 749 A.2d 452, 457-58 (2000); Pa.R.C.P. no.1035.2. Further, summary judgment can only be granted in a clear case and the record must be viewed in a light most favorable to the non-moving party. See Salerno v. LaBarr, 159 Pa. Commw. 99, 102, 632 A.2d 1002, 1004 (1993).

Defendant presents two arguments in its motion for summary judgment. Defendant avers that plaintiff has failed to establish a cause of action for negligence under the facts of the case. Defendant also avers that through plaintiffs’ own fault, the vehicle has been destroyed and, therefore, there is no evidence to support plaintiffs’ allegation that defendant was negligent in its repair of the vehicle, and that defendant would be prejudiced if the case were to proceed. Defendant further claims that the court cannot reach the issue of negligence because of the lack of evidence.

The court first addresses whether plaintiffs’ action can proceed even though the vehicle at issue has been destroyed. Courts in Pennsylvania have applied a three-part test, which was set forth by the Third Circuit Court of Appeals in Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3d. Cir. 1994), to determine the appropriate sanction for spoliation of a product that is the subject of a suit. See Schroeder v. PennDOT, 551 Pa. 243, 250, 710 A.2d 23, 26-27 (1998); Smitley v. Holiday Rambler Corp., 707 A.2d 520, 527 (Pa. Super. 1998); Dansak v. Cameron Coca-Cola Bottling Co. Inc., 703 A.2d 489, 494 (Pa. Super. 1997). In making such a determination the court must consider, “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party, and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct.” See Schroeder, 551 Pa. at 250, 710 A.2d at 27. The leading Pennsylvania cases concerning spoliation are generally in the nature of product liability actions. However, in Pia v. Perrotti, 718 A.2d 321 (Pa. Super. 1998), the Pennsylvania Superior Court applied the Schmid three-part test to a case where the plaintiff brought an action against an electrical contractor claiming the contractor was negligent in failing to adequately tighten wires, which caused a fire. In Pia, the plaintiff failed to preserve the entire fire scene, however, the Superior Court found that the trial court acted appropriately in not applying the harsh sanction of dismissing the action, but in only including a charge to the jury that they could draw a spoliation inference against the plaintiff for failure to preserve all of the evidence. See Pia, 718 A.2d at 325.

In this case, the vehicle that caught fire has been destroyed. Plaintiffs claim that they contacted defendant’s insurer so that the insurer could examine the vehicle on behalf of defendant prior to its destruction. With reference to the first prong of the Schmid test concerning fault, the court finds that although plaintiffs failed to preserve the vehicle, they did give defendant an opportunity to examine the vehicle before it was destroyed. Plaintiffs could not be expected to preserve the car indefinitely as they needed to transfer the title to their insurance company. With regard to the second prong of the test, the court finds that defendant will not be prejudiced by the failure to preserve the vehicle as there were photographs taken of the vehicle and a report done concerning the cause of the fire. The court finds that defendant will still be able to present a viable defense. See Pia, 718 A.2d at 325. Finally, with regard to the third prong of the Schmid test, the court finds that a lesser sanction than granting summary judgment in favor of defendant could be applied that would protect defendant’s rights. For example, as in the Pia case, the court could charge the jury concerning spoliation of the evidence.

In light of the foregoing, the court declines to grant defendant’s request for summary judgment based upon spoliation of the evidence. Therefore, the court next addresses defendant’s claim that plaintiffs have failed to establish a prima facie case to support a claim for negligence against defendant.

Defendant alleges that it did not owe plaintiffs a duty to protect them from the particular method of injury that plaintiffs experienced because it was not foreseeable by defendant. Specifically, defendant avers that it could not have foreseen that plaintiff-husband Michael Majoris would injure his hand and leg as a result of slipping on an uneven or unstable surface while moving away from his vehicle. Defendant further avers that its repairs were not a proximate cause of plaintiff-husband’s injuries in this case.

Plaintiffs aver that defendant owed plaintiffs a duty not to expose them to an elevated risk of foreseeable harm. Plaintiffs further aver that the chain of causation was not broken by the stone or indentation that caused plaintiff-husband Michael Majoris to fall, and that plaintiff-husband Michael Majoris falling after fleeing a burning car was not an extraordinary, but a foreseeable consequence of defendant’s failure to install, repair or replace a fire shield in the vehicle. Plaintiffs claim that the question of negligence is for the jury.

In order to establish a prima facie case for a negligence claim, a plaintiff must prove the existence of a duty, breach of the duty, causation and damages. Duty is predicated upon the relationship existing between the parties at the relevant time. See Zanine v. Gallagher, 345 Pa. Super. 119, 123, 497 A.2d 1332, 1334 (1995). Pennsylvania courts have held that the duty question arises when the defendant’s conduct exposes the plaintiff to a risk of harm. See Miller v. Group Voyagers Inc., 912 F. Supp. 164, 167 (1996). As such, duty is established on the basis of foreseeability. See id. The defendant owes the plaintiff a duty if the defendant’s actions expose the plaintiff to an elevated risk of harm. See id. Whether a duty exists is a question of law, however, a court may only rule as a matter of law that a particular defendant did not owe a duty to a particular plaintiff when the question of foreseeability is undeniably clear. See Emerich v. Philadelphia Center for Human Development Inc., 554 Pa. 209, 233, 720 A.2d 1032, 1044 (1998); Campo v. St. Luke’s Hospital, 755 A.2d 20 (Pa. Super. 2000).

In this case, the court finds that plaintiffs have pled sufficient facts to establish that defendant owed them a duty to make proper repairs to their vehicle and that defendant’s failure to properly make the repairs exposed plaintiffs to a risk of harm. Plaintiffs have asserted that defendant agreed to repair, reinstall or install a fire shield in their vehicle, but failed to do so. Plaintiffs have further asserted that plaintiff-husband Michael Majoris, specifically instructed defendant to “make sure the fire shield was put on.” The court finds that the risk of harm to plaintiffs was foreseeable by defendant. It was foreseeable that a car without a fire shield could catch on fire and plaintiffs could be injured. The court finds that it is not necessary that the exact manner of the harm was foreseeable by defendant. See Little v. York County Earned Income Tax Bureau, 333 Pa. Super. 8, 14, 481 A.2d 1194, 1198 (1984), citing Restatement (Second) of Torts, §435(1).

With regard to the causation element, even where harm to a particular plaintiff may be foreseeable from the defendant’s conduct, and that conduct is the cause-in-fact of the plaintiff’s harm, the law makes a determination that, at some point along the causal chain, liability will be limited. See Alumni Association v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987). “Legal” or “proximate” cause is a means by which liability is limited. In determining whether an act was the “legal” or “proximate” cause of the plaintiff’s harm, the plaintiff must demonstrate that the defendant’s conduct was a “substantial factor” in bringing about the harm. See id. This is normally a question of fact for the jury and should only be removed from the jury when it is clear, as a matter of law, that reasonable minds could not differ on the issue. See id.; Little, 333 Pa. Super. at 16, 481 A.2d at 1198.

In this case, the court finds that reasonable minds could differ as to whether defendant’s conduct was a substantial factor in bringing about plaintiff’s harm. Defendant made repairs to plaintiffs’ vehicle, which plaintiffs allege caused the vehicle to catch on fire. As a result, according to plaintiffs, plaintiff-husband Michael Majoris exited the vehicle in a panic, fell and was injured. The court finds that issues of fact remain as to the remoteness of plaintiff’s injuries. As such, the court finds that the jury should determine whether defendant’s conduct was a substantial factor in bringing about plaintiff’s harm.

Defendant also argues that the rock or indentation in the pavement caused plaintiff-husband Michael Majoris to fall, and therefore, defendant is not liable for his injuries. Plaintiffs characterize defendant’s assertions in this regard as an argument that a superseding cause existed in this case. Plaintiffs claim that it was foreseeable that plaintiff-husband Michael Majoris might fall or trip over an object when trying to escape from a burning car, and therefore, defendant cannot rely upon the defense of a superseding cause in this matter.

In determining whether an intervening force is a superseding cause, the test is whether the intervening conduct was so extraordinary as not to have been reasonably foreseeable. See Powell v. Drumheller, 539 Pa. 484, 493, 653 A.2d 619, 623 (1995). The determination of whether an act is so extraordinary that it constitutes a superseding cause is normally to be made by a jury. See id. at 495, 653 A.2d at 623, citing Mascaro v. Youth Study Center, 514 Pa. 351, 358-59, 523 A.2d 1118, 1122 (1987). However, where the facts are uncontroverted and only one inference can be drawn, the question of whether there was a superseding cause which would prevent the defendant’s act from being the proximate cause of the injury is a question of law for the court to determine. See id.

In this case, the court finds that there remain issues of fact as to the cause of plaintiff-husband Michael Majoris’ fall and the remoteness of his injury to defendant’s actions. The court further finds that, even assuming defendant proves that plaintiff-husband Michael Majoris tripped, the question of whether a stone or an indentation in the pavement is so extraordinary that it is a question of fact for the jury. As such, the court finds that the question of whether there was a superseding cause to plaintiff’s injuries should be left to a jury.

ORDER

And now, November 28, 2000, the court hereby orders that defendant’s motion for summary judgment and supplemental motion for summary judgment are denied.


author: BLACK, J.,

text:
    Hrycenko v. Allentown School District

      November 1, 2000
    C.P. of Lehigh County,
    no. 2000-E-51.

      Gerald I. Roth, for plaintiff.

      Jeffrey T. Tucker, for defendant.
   BLACK, J.,

Plaintiff, Peter B. Hrycenko, seeks a mandatory injunction to require the defendant, the School District of the City of Allentown, to allow Mr. Hrycenko’s 15-year-old son, Nestor Hrycenko, to try out for the Allen High School soccer team. We denied a preliminary injunction after a hearing on October 12, 2000. The parties stipulated that the preliminary hearing could also be considered as the final hearing. Accordingly, we now make our final adjudication.

FINDINGS OF FACT

(1) Plaintiff is the father of Nestor Hrycenko, age 15.

(2) Plaintiff and his son Nestor reside in the Allentown School District.

(3) Nestor is a home-schooled student currently in the ninth grade.

(4) Nestor wishes to try out for the Allen High School soccer team.

(5) Defendant has a policy of excluding home-schooled students from participation in any extracurricular activities, including athletics.

(6) This policy has been consistently enforced by defendant since its adoption in 1992.

(7) There are currently 89 home-schooled students within the Allentown School District, none of whom is permitted to participate in any school athletic programs or other extracurricular activities.

CONCLUSIONS OF LAW

(1) Under the Public School Code, a school district is vested with discretion to decide whether or not to allow home-schooled students to participate in extracurricular activities, including athletics. See 24 PS. §5-511.

(2) The Pennsylvania Home Education Program, adopted by the Pennsylvania Legislature in 1998, does not require a school district to allow home-schooled students to participate in extracurricular activities. See 24 PS. §13-1327.1.

(3) The Pennsylvania Interscholastic Athletic Association (PIAA), a voluntary association of public high schools that regulates athletic competition among its members, leaves to the local school boards the decision whether or not to allow home-schooled students to participate in interscholastic athletic programs.

(4) Defendant followed proper legal procedures in 1992 when it adopted its current policy prohibiting home-schooled students from participating in extracurricular activities, including athletics.

(5) Plaintiff has not identified any legal principle, either constitutional, statutory or otherwise, that would invalidate the policy adopted by defendant.

(6) This court is without authority to override defendant’s governing body, the duly elected school board, on a discretionary school policy such as this.

(7) Plaintiff’s request for a mandatory injunction is without any legal basis and must be denied.

DECREE NISI

Now, November 1, 2000, after a hearing held on October 12,2000, for the reasons set forth in the accompanying adjudication, it is ordered that plaintiff’s complaint is dismissed and judgment is hereby entered against plaintiff in favor of defendant.

This decree nisi shall become final unless exceptions are filed within 10 days from the date hereof.

      . The parties stipulated that this hearing would be considered the final hearing as well as the preliminary hearing.