author: WALLACH MILLER, J,

text:
    Chighizola v. Beverly Enterprises Inc.

      C.P. of Monroe County,
    no. 6672 Civil 2005.
    March 13, 2006

      Brian L. Strauss, for plaintiff Chighizola.

      Marc A. Moyer, for defendant.
   WALLACH MILLER, J,

This negligence action arises out of events that occurred between October 28,2003 and November 4,2003, when plaintiff decedent resided at defendant Beverly Enterprises— Pennsylvania Inc. d/b/a Beverly Healthcare — Stroud (facility). On October 28, 2003, decedent Mary Rosalie Jones was admitted under the defendant’s care at Beverly Health Care — Stroud. In admitting plaintiff into the defendant’s care, plaintiff’s daughter, Candace Maclntire, signed her name in the place reserved for an “authorized agent” on the admission forms. In the same time span, Ms. Maclntire also signed, as an “authorized agent” of the plaintiff, a “Resident Trust Fund Authorization” and a “Resident and Facility Arbitration Agreement.”

Pursuant to the terms of the arbitration agreement, plaintiff’s daughter agreed on behalf of the plaintiff decedent that all claims and disputes arising or in connection with the arbitration agreement or health care services would be resolved exclusively by an arbitration conducted at a place agreed upon by both parties in accordance with the National Arbitration Forum Code of Procedure and not by lawsuit or resorting to the court process. The arbitration agreement further provides:

“The resident understands that (1) he/she has the right to seek legal counsel concerning this arbitration agreement, (2) that execution of the arbitration agreement is not a precondition to admission or to the furnishing of services to the resident by the facility, and (3) this arbitration agreement may be rescinded by written notice to the facility from the resident within 30 days.”

Procedurally, on August 19,2005, plaintiff filed a complaint against defendant as a result of an incident which occurred on November 4, 2003, while in the care of the defendant. On October 12, 2005, defendant filed preliminary objections, which did not include an averment that this matter was subject to an arbitration agreement. After a stipulation between the parties to drop claims against certain individuals employed by the defendant, plaintiff filed an amended complaint on October 29,2005. Defendant filed preliminary objections to plaintiff’s amended complaint on November 18, 2005, but again, defendant did not include any averments that this matter was subject to an arbitration agreement. However, on November 23,2005, defendant filed a motion to compel arbitration, which plaintiff opposed, and this court heard oral arguments from both sides on February 6, 2006. Presently, no discovery has been exchanged between the parties, nor has this court ruled on any pretrial motions by either side.

In opposing defendant’s motion to compel arbitration, plaintiff raises the following arguments: (1) the arbitration agreement is not valid because decedent plaintiff’s daughter, Candace Maclntire, had no authority to bind her mother to the arbitration agreement, (2) the arbitration agreement is not valid because the defendant fails to establish a knowing and voluntary waiver by the decedent plaintiff of a right to a jury trial, (3) the arbitration agreement is not valid because the defendant breached their fiduciary duty to the decedent plaintiff, (4) the Federal Arbitration Act does not apply if the arbitration agreement is invalid, and (5) the defendant waived their right to arbitration by not raising the arbitration agreement as a preliminary objection.

Under Pennsylvania law, where a party to a civil action seeks to compel arbitration, judicial inquiry is limited to determining first whether a valid agreement to arbitrate exists between the parties, and if so, whether the dispute involved is within the scope of the arbitration provision. Warwick Township Water and Sewer Authority v. Boucher & James Inc., 851 A.2d 953 (Pa. Super. 2004); Midomo Company Inc. v. Presbyterian Housing Development Co., 739 A.2d. 180 (Pa. Super. 1999). Arbitration is a favored policy for the resolution of disputes because it serves to promote the swift and orderly disposition of claims. Midomo, 739 A.2d at 190. Therefore, if the parties agree to arbitration in a clear and unmistakable manner, every reasonable effort should be made to favor the enforcements of such agreements. Williams v. Gruntal & Company, 447 Pa. Super. 357, 669 A.2d 387 (1995). In the present case, plaintiff does not challenge whether the dispute involved here is within the scope of the arbitration agreement, but only the validity of the agreement.

In its first argument opposing the validity, plaintiff relies on principal-agent theory that decedent’s daughter, Candace Maclntire, had no authority to act on behalf of decedent (the principal) regarding the arbitration agreement. At oral argument on February 6, 2006, plaintiff argued that, while Ms. Maclntire can act as an agent in signing medical admissions forms, the arbitration agreement was beyond Ms. Maclntire’s scope of authority because of the legally binding nature of the agreement.

In Pennsylvania, there are three basic elements necessary to establish a principal-agent relationship: (1) manifestation by a principal that an agent shall act for the principal, (2) the agent’s acceptance of the undertaking, and (3) the parties’ understanding that the principal is to be in control of the undertaking. Basile v. H & R Block Inc., 563 Pa. 359, 368, 761 A.2d 1115, 1120 (2000); Scott v. Purcell, 490 Pa. 109, 117, 415 A.2d 56, 60 (1980). The burden of establishing an agency relationship rests with the party asserting the relationship. Id. An agent cannot, simply by its own words, invest himself with apparent authority; such authority emanates from the action of the principal and not the agent. Turnway Corporation v. Soffer, 461 Pa. 447, 458, 336 A.2d 871, 876 (1975); Jennings v. Pittsburgh Mercantile Company, 414 Pa. 641, 645, 202 A.2d 51, 54 (1964).

While plaintiff presents a novel argument that an agent’s authority to sign medical admissions forms differs from the authority to sign an arbitration agreement, we cannot agree. Pennsylvania has long held that the liability of a principal to a third party for an agent’s acts may stem from express, implied, or apparent authority. Reifsnyder v. Dougherty, 301 Pa. 328, 333, 152 A. 98, 100 (1930). The liability of the principal is not limited to such acts of the agent as are expressly authorized or necessarily implied from express authority, but all such acts of the agent as are within the apparent scope of the authority conferred on him are also binding upon the principal. Downey & Co. Inc. v. Kraemer Hosiery Co., 136 Pa. Super. 553, 7 A.2d 492 (1939). Where the principal, by words or conduct, holds one out as an agent, there is apparent authority. Reifsnyder, 301 Pa. at 333, 152 A. at 100. In order for a reasonable inference of the existence of apparent authority to be drawn from prior dealings, these dealings must have a measure of similarity to the act for which the principal is sought to be bound and a degree of repetitiveness. Turnway, 461 Pa. at 459, 336 A.2d at 877. A principal who clothes his agent with such apparent authority is estopped from denying such authority. Id. at 457, 336 A.2d at 876.

In the present matter, decedent plaintiff held Candace Maclntire out as having the authority to sign decedent’s admission forms as well as the Resident Trust Fund Authorization. In both documents, Ms. Maclntire signed as decedent’s agent, and plaintiff does not contest Ms. Maclntire’s authority to do so. One can reasonably infer that the decedent appears to have given her agent the apparent authority to sign the arbitration because of the similarities of how and when the documents were signed. See Turnway, 461 Pa. at 459, 336 A.2d at 877. In the arbitration agreement, Ms. Maclntire again signed as decedent’s agent, and the arbitration agreement was signed in the same time span and context as the other documents. Moreover, plaintiff’s counsel stated at oral argument that the decedent was of sound mind and conscience on October 28,2003. Therefore, there is no reason why the decedent could not have rescinded the arbitration agreement, as permitted under the terms of the arbitration agreement, if the decedent believed that Ms. Maclntire had overstepped her authority as an agent. Allowing the plaintiff in hindsight to now narrowly pick which documents the agent did not have authority to authorize would unjustly benefit the plaintiff for litigation purposes. Therefore, mindful of the circumstances in which the arbitration agreement was authorized, we find that Ms. Maclntire had the proper authority to bind the decedent to the arbitration agreement.

Examining plaintiff’s next argument that Ms. Maclntire did not knowingly and voluntarily waive her right to a jury trial, we disagree with the plaintiff due to the conspicuous nature and clarity of the arbitration agreement that plaintiff’s agent signed. At the top of the arbitration agreement, it clearly states in bold letters “RESIDENT AND FACILITY ARBITRATION AGREEMENT (NOTA CONDITION OF ADMISSION-READ CAREFULLY).” The document contents are clearly unambiguous from the title, and Ms. Maclntire’s signature appears at the end of the document. On the second page of the document, it reads in bold letters “THE PARTIES UNDERSTAND AND AGREE THAT THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.” The document also clearly informs Ms. Maclntire that she has the right to seek legal counsel and can rescind the agreement in 30 days if she chooses. Even if plaintiff did not properly read the agreement, “in the absence of fraud, the failure to read a contract before signing it is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract; it is considered supine negligence.” Germantown Savings Bank v. Talacki, 441 Pa. Super. 513, 521, 657 A.2d 1285, 1289 (1995). As a result, we find plaintiff’s argument lacks merit and is denied.

Finally, in plaintiff’s last argument challenging the validity of the arbitration agreement, plaintiff states that defendant breached its fiduciary duty to the plaintiff by taking advantage of the decedent and her family by enticing Ms. Maclntire into signing the arbitration agreement. Plaintiff insists at length that defendant had a fiduciary duty with Ms. Maclntire, decedent’s agent, at the time of the arbitration agreement’s signing; therefore, defendant had an affirmative duty to disclose all terms of the agreement and their substantive effect. However, assuming defendant actually owed such a duty arguendo, the arbitration agreement uses conspicuous and clear language highlighting the arbitration agreement and its effect. The terms of the arbitration are listed as well as the binding effect that the arbitration agreement has. Ms. Maclntire’s failure to read those terms is not a defense. Talacki at 521, 657 A.2d at 1289. Plaintiff’s argument again fails to challenge the validity of the arbitration agreement.

Plaintiff’s next argument, which states that the Federal Arbitration Act does not apply if the arbitration agreement is found invalid, is now inapplicable since we have found the agreement valid notwithstanding plaintiff’s challenges.

Lastly, plaintiff argues that defendant waived their right to arbitration by filing preliminary objections without including averments that this case was subject to an arbitration agreement. For support, plaintiff cites Wilk v. Ravin, 46 D.&C.4th 347 (2000) an Allegheny Common Pleas Court decision holding that a party waives an arbitration agreement if the agreement is not asserted prior to the filing of an answer to the complaint. In that case, the court ruled that because of the 1991 Amendment of Pa.R.C.P. 1028(6) making alternative dispute resolution a ground for which preliminary objections may be filed, an agreement to arbitrate may be waived if not raised as a result of Pa.R.C.P 1032(a). Id. at 350. The court held that a preliminary obj ection based on an arbitration agreement is analogous to one based on lack of jurisdiction because both grounds involve objections to the consideration of the merits of the complaint by the court in which the lawsuit was filed. Id. at 352. Therefore, because a preliminary objection based on lack of jurisdiction can be waived under Pa.R.C.P 1032(a), an objection based on an arbitration agreement should also be waived.

Although the Ravin case could pose as persuasive but not binding authority for this court, successive Pennsylvania Superior Court cases have diminished Ravin's impact. In Keystone Technology Group Inc. v. Kerr Group Inc., 824 A.2d 1223 (Pa. Super. 2003), the Pennsylvania Superior Court held that even though the appellant had already filed a complaint and amended complaint before filing a motion to compel arbitration, the appellant did not waive its right to arbitration because there was no resulting prejudice to the appellee. The court stated: “a waiver of a right to proceed to arbitration pursuant to the term of a contract providing for binding arbitration should not be lightly inferred and unless one’s conduct has gained him an undue advantage or resulted in prejudice to another he should not be held to have relinquished the right.” Id. at 1226.

The Keystone court placed particular emphasis on the fact that no discovery had taken place before the filing of a motion to compel arbitration; therefore, no side had gained an advantage from the discovery process. See id. at 1227. As a result, the mere filing of a complaint or answer without resulting prejudice to either side will not justify a waiver of the right of arbitration. Id. at 1226.

In Thermal C/M Services Inc. v. Penn Maid Dairy Products, 831 A.2d 1189, 1191 (Pa. Super. 2003), our Superior Court followed the Keystone rationale in holding that a party does not waive its right to arbitration when there is no undue advantage gained or imposed prejudice upon the other party. Thermal Services initially raised the arbitration agreement as a preliminary objection, but later intentionally abandoned this argument in its accompanying supporting brief and proposed draft order, which the trial court adopted without reference to the arbitration agreement. Id. at 1191. However, Thermal brought a motion to compel arbitration two months later to the trial court. Id. The Superior Court ruled that Thermal did not waive its right to compel arbitration even though it initially abandoned its arbitration argument because Thermal had not gained an unfair advantage, nor had the other party been prejudiced. Id. at 1191 n.2.

In the present case, we find the circumstances very similar to Keystone and Thermal. Here, no discovery has taken place. While plaintiff made a request for answers to its interrogatories, there have been no answers, nor have any depositions taken place. Neither side has gone through the discovery process except for plaintiff’s request for interrogatory answers, nor has pretrial progressed to a point where it would be inefficient to grant defendant’s motion to compel. Because nothing has taken place such as pretrial motions or even setting up a discovery time period, there is no discernible advantage gained by defendant or prejudice that will befall the plaintiff. Therefore, we cannot lightly infer a waiver of the arbitration agreement. Keystone, 824 A.2d at 1226. Pennsylvania courts long have held arbitration as a favored policy for resolutions of disputes because it serves to promote the swift and orderly disposition of claims. Midorno, 739 A.2d at 190. In this light, we find that defendant has not waived his right to arbitration.

Summarily, we find the arbitration agreement between defendant and plaintiff valid and has not been waived by defendant. Therefore, defendant’s motion to compel arbitration is granted.

ORDER

And now, March 13,2006, defendant’s motion to compel arbitration is granted.


source: Caselaw Access Project

author: BROWN JR., P.J.,

license: Public Domain

text:
    Commonwealth v. Rainelli

      C.P. of Centre County,
    no. CP-14-CR-1201-2000.
    January 25, 2006

      Christopher D. Carusone, for Commonwealth.

      Sean P. McGrow, for defendant.
   BROWN JR., P.J.,

Presently before the court is defendant David Rainelli’s motion to suppress. Said motion is denied. The court determines defendant need not be individually named on the application or order for interception of wire and electronic communications.

FINDINGS OF FACT

(1) On June 29,2005, this court granted defendant post-conviction relief in the form of a new trial.

(2) On April 28, 1998, Judge Zoran Popovich of the Pennsylvania Superior Court signed an order authorizing the interception of wire and electronic communications from the telephone of Andrew Bekes, an individual being investigated for drug trafficking in Centre County, Pennsylvania.

(3) The Superior Court order of April 28,1998, authorizes the Commonwealth to “[ijntercept wire and electronic communications of Andrew Lord BEKES, and others as yet unknown.” (Order of April 28,1998, misc, no. 12-8 E.D. 1998.)

(4) Pursuant to the wiretap order, conversations between Bekes and defendant were intercepted.

CONCLUSIONS OF LAW

(1) The standard of proof at a suppression hearing is proof by a preponderance of the evidence. Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).

(2) An application for an order of authorization to intercept a wire electronic or oral communication shall state, “[t]he identity of the particular person, if known, committing the offense and whose communications are to be intercepted.” 18 Pa.C.S. §5709. (emphasis added)

(3) An order authorizing the interception of any wire, electronic or oral communication shall state, “[t]he identity of, or a particular description of, the person, if known, whose communications are to be intercepted.” 18 Pa.C.S. §5712. (emphasis added)

DISCUSSION

Defendant filed the instant motion to suppress statements on September 30, 2005, seeking the suppression of the intercepted electronic communications between him and Bekes. Defendant argues all communications seized by the Commonwealth are the result of an illegal search and seizure. Defendant maintains the recorded conversations between him and Bekes were subjected to an illegal search, and the words uttered were seized within the meaning of the requirements of the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. See Katz v. United States, 389 U.S. 347 (1967).

Specifically, defendant argues the Fourth Amendment requires that the “place to be searched, and the persons or things to be seized” be “particularly describe[ed].” U.S. Constitution, Amendment IV. The Pennsylvania Constitution requires that any place to be searched or any person to be seized be described “as nearly as may be.” However, in the April 28, 1998 order authorizing the interception of Bekes phone, defendant is not named as one of the individuals whose communications would be intercepted. Defendant argues the failure to name him in the order mandates exclusion of the evidence.

The Pennsylvania Wiretapping and Electronic Surveillance Control Act requires an application for an order of authorization to intercept a wire electronic or oral communication to state, “[t]he identity of the particular person, if known, committing the offense and whose communications are to be intercepted.” 18 Pa.C.S. §5709. (emphasis added) An order authorizing the interception of any wire, electronic or oral communication shall state, “[t]he identity of, or a particular description of, the person, if known, whose communications are to be intercepted.” 18 Pa.C.S. §5712. (emphasis added)

The application submitted by the Commonwealth to the Superior Court stated it was seeking “authorization to intercept wire and electronic communications of Andrew Lord BEKES, and others as yet unknown.” (Order of April 28, 1998, misc. no. 12-8 E.D. 1998.) The Act does not require the Commonwealth to identify the communications of all persons who might be intercepted by the wiretap.

In Commonwealth v. Whitaker, 519 Pa. 77, 546 A.2d 6 (1988), our Supreme Court stated, “[cjlearly, an applicant for a wiretap cannot be expected to name persons whose communications ‘are to be intercepted,’... when there are no probable grounds to believe such communications will be intercepted. To require that every person whose communications are in fact intercepted have been named in the interception order would require a high degree of omniscience indeed, obviously not intended as an element of wiretapping prerequisites.” Id. at 82, 546 A.2d at 9.

In the instant case, the Commonwealth did not have probable cause to believe defendant’s communications would be intercepted when wiretapping Bekes’ conversations. Defendant points out that his name is mentioned in the affidavit. However, the Commonwealth argues the mere mentioning of defendant’s name does not lead to probable cause. Page 50 of the affidavit mentions “the Rainelli’s phone.” This phone refers to a number which is subscribed to by Julie Rainelli.

This is not sufficient to suggest the Commonwealth had probable grounds to believe defendant’s communications would be intercepted under the wiretap.

It is clear to this court that the Act does not require the application or the order for the interception of communications to include the identity of a particular person when the Commonwealth does not have probable cause to believe the individual’s communications would be intercepted. Based upon the evidence presented, the court determines the Commonwealth did not have probable cause to believe defendant’s conversations would be intercepted. Therefore, defendant’s motion is denied.

Accordingly the following is entered:

ORDER

And now, January 25, 2006, upon consideration of defendant David Rainelli’s motion to suppress statements, said motion is denied. The court determines defendant need not be individually named in the application or order for interception of wire and electronic communications, based upon the Commonwealth’s lack of probable cause to believe defendant’s conversations would be intercepted by the wiretap.


author: BLACK, J,

text:
    Kiesel v. Lehigh Valley Eye Center P.C.

      C.P. of Lehigh County,
    no. 2005-C-475.
    April 28, 2006

      Michael G. Longenhagen, for plaintiff.

      Lauren K. Goff, for defendants.
   BLACK, J,

The plaintiff, Robert Kiesel M.D., is an ophthalmologist formerly employed by the corporate defendant, Lehigh Valley Eye Center RC. (LVEC). The individual defendant, Alan B. Leahey M.D., is an officer of LVEC. Kiesel alleges in a six-count complaint that the defendants have made false and derogatory statements regarding his competence and professional status to his existing and potential patients, thereby causing him a substantial loss of business. Kiesel seeks to recover damages for this loss on a variety of legal theories, including unjust enrichment (Count I), fraud (Count II), promissory estoppel (Count III), tortious interference with contractual relations (Count IV), tortious interference with prospective business relations (Count V), and civil conspiracy (Count VI).

The defendants have filed preliminary objections to the complaint that are now before the court for disposition. The defendants assert (1) that the plaintiff’s claims must be submitted to arbitration pursuant to a provision in the prior employment agreement between Kiesel and LVEC; (2) that the plaintiff’s claims are barred by the doctrine of res judicata; (3) that Counts I, II, III, and VI of the complaint are legally insufficient; and (4) that the plaintiff’s claim for punitive damages is legally insufficient. For the reasons stated below, we find that the preliminary objections are without merit, except for the obj ection that Counts I, II, III, and VI are legally insufficient.

1. THE ARBITRATION ISSUE

The defendants have annexed to their preliminary objections a copy of the written contract pursuant to which Kiesel was previously employed by LVEC. This contract provides in paragraph 7 that any controversy between the contracting parties is to be resolved through arbitration in accordance with the procedures established by the American Arbitration Association. The contract does not expressly limit the scope of the arbitration clause to disputes arising under or pertaining to the contract.

Kiesel does not deny that he executed the contract or that it contains a provision for arbitration. He questions whether the scope of the arbitration clause is broad enough to cover the claims in his complaint. We need not reach that issue, however, because Leahey, the individual defendant, was not a party to the contract. Therefore, we cannot compel Kiesel to adjudicate his claims against Leahey through arbitration.

Moreover, since Kiesel’s claims against LVEC are to a large extent derivative of his claims against Leahey, it would not make sense to force Kiesel to arbitration on his claims against LVEC. Enforcement of the arbitration provision in these circumstances for claims against LVEC would unnecessarily complicate the parties’ dispute. They would have to litigate essentially the same claims in two forums — in this court against Leahey and before an arbitrator against LVEC. This would be inconsistent with the fundamental purpose of arbitration, which is to promote the prompt and efficient adjudication of disputes. School District of Philadelphia v. Livingston-Rosenwinkel P.C., 690 A.2d 1321, 1322 (Pa. Commw. 1997); University Mechanical & Engineering Contractors Inc. v. Insurance Co. of North America, no. 1554 (C.P. Philadelphia October 28, 2002).

In the event that Kiesel’s claims against Leahey are dismissed at a later date but prior to trial, so that LVEC becomes the sole defendant, we will revisit the issue of arbitration.

2. THE DEFENSE OF RES JUDICATA

The defendants contend that the claims asserted by Kiesel in this case were previously adjudicated in an arbitration proceeding between Kiesel and LVEC. In support of their position, the defendants have annexed a copy of an arbitration award dated September 28,2004, to their preliminary objections as exhibit E.

There are several problems with this objection. First, as the award indicates, Leahey was not a party to the arbitration, so that it could not have any preclusive effect on claims against him. Second, it is not clear from the award whether the claims made by Kiesel against LVEC in the present case were ever adjudicated or asserted in the arbitration.

Furthermore, res judicata is an affirmative defense to be raised in an answer under new matter. Pa.R.C.R 1030(a). It is not properly raised by preliminary objection except in those rare cases where the plaintiff’s complaint itself alleges sufficient facts to establish the defense. In this case Kiesel’s complaint does not contain any reference whatsoever to an arbitration. Thus, there is no way one can determine from an examination of Kiesel’s complaint that the claims asserted were previously litigated in a prior proceeding. The defendants’ res judicata objection is an impermissible “speaking demurrer,” and must be rejected at this juncture.

3. THE LEGAL SUFFICIENCY OF COUNTS I, II, III, AND VI

The gravamen of KiesePs complaint is that the defendants have tortiously interfered with his existing and prospective patient relationships. These claims are sufficiently set forth in Counts IV and V of the complaint. The addition of Counts I, II, and III, asserting unjust enrichment, fraud, and promissory estoppel merely clutters up the case without serving any legal purpose.

The facts alleged in the complaint do not support any of these legal theories. First, Kiesel did not voluntarily firmish a benefit to the defendants other than services under his employment agreement with LVEC; hence there is no basis for an unjust enrichment claim. Second, the alleged misrepresentations were made to third parties, not to Kiesel to induce action or inaction on his part; hence they cannot sustain a claim of fraudulent misrepresentation. Third, the complaint does not plead any promises made to Kiesel on which he relied to his detriment, so as to give rise to a claim of promissory estoppel. Consequently, Counts I, II and III are legally insufficient and must all be dismissed.

Lastly, with respect to the claim of a civil conspiracy between LVEC and Leahey in Count VI, it is well-established that a corporation cannot conspire with itself; nor can a corporation conspire with one or more of its agents. Lackner v. Glosser, 892 A.2d 21, 35 (Pa. Super. 2006). Therefore, Count VI must also be dismissed as legally insufficient.

4. PUNITIVE DAMAGES

The complaint alleges intentional tortious misconduct on the part of the defendants. The misconduct alleged, if it did in fact occur, could be considered sufficiently outrageous to warrant an award of punitive damages. It would be premature to dismiss the punitive damage claim at this time without giving the plaintiff an opportunity to develop a proper record on this issue. Accordingly, the preliminary objection to the claim of punitive damages must be dismissed.

ORDER

Now, April 28, 2006, upon consideration of the defendants’ preliminary objections to the plaintiff’s second amended complaint and plaintiff’s response to these objections, after review of the parties’ briefs and oral argument, and for the reasons set forth in the accompanying memorandum opinion, it is ordered as follows:

(1) The preliminary objection pursuant to Pa.R.C.P. 1028(a)(6) based upon an agreement for alternative dispute resolution is overruled.

(2) The preliminary objection raising the defense of res judicata is overruled.

(3) The preliminary objections in the nature of a demurrer to counts I, II, III and VI are sustained, and these counts are dismissed.

(4) The preliminary objection for failure to state a claim for punitive damages is overruled.

It is further ordered that the defendants shall file an answer to the second amended complaint, excluding the averments in Counts I, II, III, and VI, within 20 days from the date of this order.

      . Paragraph 7 provides the following:
      “Any controversy or disagreement between the parties to this agreement shall be determined by an arbitration in the County of Lehigh in accordance with the rules of the American Arbitration Association, and judgment on any award or determination so made be entered in any court having jurisdiction.” Preliminary objections of defendants, exhibit B, ¶7.

      . The operative pleading is the second amended complaint.


author: O’BRIEN, J.,

text:
    Wengerd v. Nature Conservancy

      C.P. of Monroe County,
    nos. 1857 CIVIL 2004, 2321 CIVIL 2004, 3124 CIVIL 2004.
    December 19, 2005

      Peter B. Foster, for plaintiffs.

      Nicholas C. Haros, for Nature Conservancy.

      Gerard J. Geiger, for Pocono Heritage Land Trust.

      John L. Downing, for Commonwealth.

      James F Marsh, for Monroe County Tax Claim Bureau.
   O’BRIEN, J.,

Graham McKelvy Walker, et ux. executed a deed on December 17, 1997, donating approximately 111 acres of land situate in Cherry Valley, Hamilton Township, Monroe County to The Nature Conservancy, a nonprofit corporation. (Exhibit J-D.) On June 24, 1998, The Nature Conservancy transferred ownership of the property to Pocono Heritage Land Trust, a nonprofit corporation organized under the laws of the Commonwealth of Pennsylvania, for the purpose of conducting exclusively charitable, scientific and educational activities. (Exhibit J— E.) Although the Pocono Heritage Land Trust was granted tax-exempt status by the Chief Assessor of Monroe County effective for the 2002 tax year (exhibit J-B), the Trust failed to pay taxes on the 111 acres for the year 2001. Consequently, the property was sold at a tax sale on September 26, 2003, to David S. Wengerd, et ux. Subsequently three separate actions have been filed with respect to title to the subject premises.

The deed from The Nature Conservancy to Pocono Heritage Land Trust provides in pertinent part as follows:

“This conveyance is made subject to the express condition and limitation that the premises conveyed shall forever be held as a nature preserve for scientific, educational and aesthetic purposes, and shall be kept entirely in its natural state, excepting only such fences, foot trails and property maintenance activities as may be appropriate to effectuate the foregoing purpose without impairing the essential natural character of the premises.

“Should the premises cease to be used solely as provided herein, then the estate hereby granted to the grantee shall cease to exist and shall revert to and vest in The Nature Conservancy . . . (Commonwealth’s exhibit 2.)

On March 16,2004, the purchasers at the tax sale commenced a declaratory judgment action against The Nature Conservancy and Pocono Heritage Land Trust, asking the court “to declare that the said conditions set forth in the deed between the defendants dated June 24,1998 has been extinguished.” Shortly after that complaint was served, Pocono Heritage Land Trust filed a petition to set aside tax sale alleging, inter alia, that it did not have notice of the sale. On May 4, 2004, The Nature Conservancy also filed a petition to set aside tax sale alleging, inter alia, that as a reversionary interest holder it also had not been notified of the sale. All parties have filed responsive pleadings in the respective actions. On May 13, 2005, this court granted the petition of the Attorney General of the Commonwealth of Pennsylvania to intervene in these proceedings. Following an evidentiary hearing on November 30, 2005, all of the above captioned proceedings are now before the court for disposition.

Although counsel for the parties have framed numerous issues with respect to these proceedings, a logical first step in our analysis must be to determine whether the Monroe County Tax Claim Bureau complied with the provisions of the Real Estate Tax Sale Law in providing notice to Pocono Heritage Land Trust of the sale held on September 26, 2003. The Real Estate Tax Sale Law provides in pertinent part as follows:

“(a) At least 30 days prior to any scheduled sale the bureau shall give notice thereof, not less than once in two newspapers of general circulation in the county, if so many are published therein, and once in the legal journal, if any, designated by the court for the publication of legal notices. Such notice shall set forth (1) the purposes of such sale, (2) the time of such sale, (3) the place of such sale, (4) the terms of the sale including the approximate upset price, (5) the descriptions of the properties to be sold as stated in the claims entered and the name of the owner....

“(e) In addition to such publications, similar notice of sale shall also be given by the bureau as follows:

“(1) At least 30 days before the date of the sale, by United States certified mail, restricted delivery, return receipt requested, postage prepaid, to each owner as defined by this act.

“(2) If return receipt is not received from each owner pursuant to the provisions of clause (1), then at least 10 days before the date of sale, similar notice of sale shall be given to each owner who failed to acknowledge the first notice by United States first class mail, proof of mailing, at his last known post office address by virtue of the knowledge and information possessed by the bureau, by the tax collector for taxing district making the return and by the county office responsible for assessments and revisions of taxes. It shall be the duty of the bureau to determine the last post office address known to said collector and county assessment office.

“(3) Each property scheduled for sale shall be posted at least 10 days prior to the sale.” 72 P.S. §5860.602(a), (e).

“Additional notification efforts.

“(a) When any notification of a pending tax sale or a tax sale subject to court confirmation is required to be mailed to any owner, mortgagee, lienholder or other person or entity whose property interest are likely to be significantly affected by such tax sale, and such mailed notification is either returned without the required receipted personal signature of the addressee or under other circumstances raising a significant doubt as to the actual receipt of such notification by the named addressee or is not returned or acknowledged at all, then, before the tax sale can be conducted or confirmed, the bureau must exercise reasonable efforts to discover the whereabouts of such person or entity and notify him. The bureau’s efforts shall include, but not necessarily be restricted to, a search of current telephone directories for the county, and of the dockets and indices of the county tax assessment offices, recorder of deeds office and prothonotary’s office, as well as contacts made to any apparent alternate address or telephone number which may have been written on or in the file pertinent to such property. When such reasonable efforts have been exhausted, regardless of whether or not the notification efforts have been successful, a notation shall be placed in the property file describing the efforts made and the results thereof, and the property may be rescheduled for sale or the sale may be confirmed as provided in this act.

“(b) The notification efforts required by subsection (a) shall be in addition to any other notice requirements imposed by this act.” 72 P.S. §5860.607a(a), (b). (emphasis supplied)

It is well settled law in our Commonwealth that the notice provisions are to be strictly construed and that strict compliance with the notice provisions is essential in order to prevent the deprivation of property without due process under the Pennsylvania Constitution and the Constitution of the United States. In re Tax Claim Bureau of Chester County, 208 Pa. Super. 384, 222 A.2d 602 (1966); see In re Tax Claim Bureau of Schuylkill County Sale of September 29, 2000, 798 A.2d 845 (Pa. Commw. 2002). Our Supreme Court in Tracy v. County of Chester, Tax Claim Bureau, 507 Pa. 288, 489 A.2d 1334 (1985) held that at a minimum, due process requires the government to notify an owner before his property is forfeited by the Commonwealth.

It is undisputed that the Monroe County Tax Claim Bureau advertised the tax sale as required by law in the Monroe Legal Reporter and the Pocono Record, a newspaper of general circulation in Monroe County. (Respondent’s exhibit nos. 3, 4.) However, the certified record of the Monroe County Tax Claim Bureau fails to disclose any return receipt executed by the Pocono Heritage Land Trust with respect to the mail notice. Although a second first class mail notice was mailed to another address, the evidentiary record discloses that that address was not a proper address for the owner of record. Most importantly, the evidentiary record makes apparent that the Monroe County Tax Claim Bureau failed to comply with the “additional notification efforts” required by the above quoted statute in several particulars. The evidentiary record also makes clear that, had the Bureau complied with the statutory requirements, it would have obtained the correct mailing address of P.O. Box 553 in Pocono Pines, Pennsylvania for the Pocono Heritage Land Trust.

In particular, the “additional notification efforts” include a search of current telephone directories for the county. Documentary evidence was presented at our hearing that there was a current phone number for the landowner in the Monroe County telephone directory in the year of the sale. (Petitioner’s exhibits 3, 4.) The “additional notification efforts” also include a search of the dockets and indices of the county tax assessment offices. The evidence adduced at hearing established that the Pocono Pines address for the landowner was available in the Tax Assessor’s computer system at the time of the sale. (N/T 146-48; exhibit J-B.) The “additional notification efforts” also include a search of the records of the Recorder of Deeds office. Documentary evidence was presented at our evidentiary hearing that the Recorder of Deeds office had on file deeds setting forth the correct Pocono Pines address of the landowner at the time of the sale. (Petitioner’s exhibit 9.) Although additional availability of the identity and agents of the landowner was presented at hearing, we conclude they are unnecessary to our conclusion, with the Monroe County Tax Claim Bureau having failed to comply with the foregoing enumerated explicit provisions of the statute which would have revealed a correct address for this landowner, the petition to set aside the tax sale must be granted.

It is also important not only for this sale but for future sales by the Monroe County Tax Claim Bureau that we point out a deficient practice with respect to the Bureau’s posting of properties prior to sale. As noted in the above quoted statute, each property scheduled for sale shall be posted at least 10 days prior to the sale. In the case at bar, testimony was presented by the county employee who made the posting that she posted the sign on a “weed” located near a public road on the 111-acre tract of land. (N/T 152-54.) She admitted in her testimony that such notice could easily be blown away by passing vehicles on the public roadway. (N/T 163.) Since the purpose of the posting provision is to provide public notice to the landowner and others of the pending tax sale, we hold that tying a notice to movable vegetation such as a “weed” does not meet the statutory requirements for posting. If structures or other stationary objects are not available for posting, the Monroe County Tax Claim Bureau could easily utilize the type of signs supported by stakes which adorn the Pocono’s landscape during every political campaign. If they have not already implemented such a practice, the Bureau should do so commencing with next year’s sale.

While the foregoing analysis for all practical effects ends this litigation, we should note that there is clearly legal authority on the issues raised in the other two proceedings. The testimony at hearing was undisputed that The Nature Conservancy, which held a reversionary interest in the premises sold at the tax sale, received no notification from the Monroe County Tax Claim Bureau with respect to the sale of the subject premises. In Donaldson v. Ritenour, 105 Pa. Commw. 383, 524 A.2d 1044 (1987), the Commonwealth Court held that a party holding a reversionary interest in real estate must receive notice of a tax sale of the premises in which they have an interest. The court observed:

“Inasmuch as the appellees were named in the recorded deed, the extinction of their interest in the subject property without prior notice would contravene due process principles.” Donaldson at 387, 524 A.2d at 1046.

The same conclusion applies to the interest of The Nature Conservancy in these proceedings.

Finally, we note that David S. Wengerd, et ux., would not be entitled to a declaratory judgment on the ground that the tax sale extinguished the reversionary interest or restriction of use in the deed from The Nature Conservancy to Pocono Heritage Land Trust. In Tide Water Pipe Co. v. Bell, 280 Pa. 104, 117, 124 A. 351 (1924), our Supreme Court stated:

“We therefore hold that if land is sold for taxes, an easement, servitude, or interest in the nature of an easement, is not destroyed, but the purchaser takes subject thereto. It is the estate and interest of the real owner or owners of the land sold, which passes by the sale, and not some other estate or interest, which the real owner or owners did not have.”

Therefore, the restriction on use in the chain of title was not extinguished by the tax sale.

ORDER

And now, December 19,2005, the complaint of David S. Wengerd and Emma L. Wengerd, his wife, for declaratory judgment is denied.

ORDER

And now, December 19,2005, it is ordered as follows:

(1) The petition of Pocono Heritage Land Trust to set aside the tax sale of the premises situated in Hamilton Township, Monroe County, Pennsylvania, consisting of approximately 111 acres of land and identified as Tax Parcel 07/92399, is granted.

(2) Pocono Heritage Land Trust shall forthwith deposit with the Monroe County Tax Claim Bureau a sum equal to the outstanding taxes on the premises and the cost of sale. The Tax Claim Bureau shall apply all funds on deposit toward the payment of all outstanding taxes and costs of sale and return to David S. Wengerd and Emma L. Wengerd all sums paid by them at the time of the sale.

ORDER

And now, December 19, 2005, the petition of The Nature Conservancy to set aside the tax sale of the premises situate in Hamilton Township, Monroe County, Pennsylvania, consisting of approximately 111 acres of land and identified as Tax Parcel 07/92399, is granted.


author: GOLDBERG, J,

text:
    Liberchuk v. Nolte

      C.P. of Bucks County,
    no. 02-08547-20-2.
    April 18, 2006

      Bruce Martin Ginsburg, for appellants.

      Kelly J. Fox, for appellee.
   GOLDBERG, J,

This case involves a personal injury suit brought by Roman and Anna Liberchuk stemming from a vehicle accident occurring on August 6,2000. After a one-day trial, a jury awarded Roman Liberchuk $ 1,695.13 for economic damages and zero for noneconomic damages. The jury also declined to award Anna Liberchuk any compensation for non-economic damages. The Liberchuks appeal this court’s July 13, 2005 order denying their post-trial motions seeking a new trial on the issue of damages, or in the alternative, for additur.

In their concise statement of matters complained of on appeal, the Liberchuks raise one issue as follows:

“Plaintiffs’ basis for the appeal is that the jury’s award of zero for noneconomic damages, despite their finding plaintiff’s injuries and medical bills were causally related to the accident, is inconsistent with the law of this Commonwealth.”

This opinion is filed pursuant to Rule of Appellate Procedure 1925(a).

FACTUAL AND PROCEDURAL HISTORY

On August 6, 2000, at approximately 1:30 p.m., the Liberchuks were traveling south on Route One in Bensalem Township in their Chrysler minivan while defendant, Kenneth Nolte, was traveling north on Route One in a replica 1967 Cobra sports car. It was drizzling at the time and Nolte was speeding when, according to him, “the car started acting funny” and his vehicle collided into the guardrail dividing Route One. (N.T. 3/9/ 05, pp. 49, 102.) The impact caused portions of the fiberglass body ofNolte’s vehicle to disintegrate and pieces went flying into the air, some into the southbound lanes of Route One where the Liberchuks’ vehicle was approaching. Mr. Liberchuk tried to avoid the debris by jiggling the steering wheel to the right and left and then by jamming on the brakes. A chunk of metal, which Mr. Liberchuk believed to be a radiator, struck the front bumper and then passed underneath the van. After running over the metal, Mr. Liberchuk was able to bring his minivan to a stop on the shoulder of the road. (N.T. 3/9/ 05, pp. 7-8,59-61.)

The police arrived shortly thereafter. Mrs. Liberchuk was unable to open the passenger-side door of the minivan because the hinge was jammed. Both Mr. and Mrs. Liberchuk testified that the door was jammed as a result of the accident, but on cross-examination, Mr. Liberchuk admitted that the repair bill for the car did not include any repairs to the passenger door that Mrs. Liberchuk was unable to open. (N.T. 3/9/05, p. 78.) A police officer assisted in opening the door and asked the Liberchuks if they required medical attention or an ambulance to take them to the emergency room. Both dedined, and Mr. Liberchuk was able to drive the minivan away from the scene. (N.T. 3/9/05, pp. 9-11, 24, 31, 62, 70, 77-78.)

Mr. Liberchuk testified that as a result of the incident, he hit his left shoulder and head on the pillar between the windshield and the glass on the driver’s door. Mr. Liberchuk explained that he declined medical attention because he did not have any medical insurance and could not afford to pay hospital bills. (N.T. 3/9/05, pp. 61-63, 69.)

Mrs. Liberchuk, who was in the passenger seat, claimed that she hit her face against the side of the van, the dashboard, and the door, which caused bleeding from her head and elbow. She explained that she was numb, her head was throbbing, and she could not see. Despite these alleged injuries, Mrs. Liberchuk also refused medical treatment when offered by a police officer at the scene. She explained that the reason she did not request an ambulance or go to the emergency room was because neither she nor her husband, who were both unemployed at the time of the accident, had medical insurance. (N.T 3/9/05, pp. 8-10, 24.)

The Liberchuks’ testimony regarding their various injuries was directly contradicted by police reports that made no mention of any injuries. Detective Aninsman, who was at the scene of the accident, testified that if someone had been bleeding, as Mrs. Liberchuk claimed she was, that would have been noted in the police report. (N.T. 3/9/05, pp. 24,51,53.)

While both the Liberchuks testified that they felt pain in the days following the accident, neither sought medical treatment until five weeks after the accident.

Mr. Liberchuk testified that the night of the accident, he began to experience headaches, stiffness in his neck, shoulder and lower back. While the pain in his shoulder and head went away, the pain in his lower back allegedly remained and moved into his right leg. Nonetheless, Mr. Liberchuk attended work the following day at his new job, although he claimed that for the first two weeks following the accident, his wife or daughter had to drive him to work because he had difficulty operating a vehicle. (N.T. 3/9/05, pp. 62-64, 69, 72-74.)

Mrs. Liberchuk testified that for the first few weeks following the accident, she had injuries and pain in her face, neck, shoulder and arm, as well as bad headaches. She claimed that her face was swollen, her right eye was black and swollen, and that she had a “gap” on her forehead. Despite these alleged injuries, Mrs. Liberchuk never sought medical treatment until five weeks after the incident. No medical reports or pictures of these injuries were ever presented to the jury. (N.T. 3/9/05, pp. 12-15, 25-26, 30.)

Mrs. Liberchuk also testified that she became depressed, and as such, could not leave the house and was afraid to drive. This testimony was contradicted by Mr. Liberchuk’s testimony (and prior sworn testimony) wherein he claimed that immediately following the accident, his wife had to drive him to work. (N.T. 3/9/05, pp. 13, 28, 72-75.) Mrs. Liberchuk further stated that she did not seek immediate medical treatment because she was waiting for their health insurance to take effect. However, it was established that the couple did have medical benefits under their car insurance policy that would have provided them with coverage for treatment. Mr. Liberchuk explained that he did not understand how the system worked and did not want to incur any medical bills. (N.T. 3/9/05, pp. 11, 19, 26-27, 71-72.)

When the couple finally sought medical treatment in September 2000, five weeks after the accident, it was through a chiropractor, Dr. Olga Itkin. According to Dr. Itkin’s report, Mrs. Liberchuk told her that the reason she had not previously sought medical treatment was because she was depressed. The report failed to mention anything about not having insurance or the financial ability to pay for medical treatment. When confronted with this discrepancy, Mrs. Liberchuk testified that she could not recall exactly what she had said to Dr. Itkin, but that both statements were true. (N.T. 3/9/05, pp. 26-28, 64; exhibit P-1.)

Dr. Itkin treated Mr. Liberchuk with a spine adjustment, ultraviolet light, hot packs, and massage. Mr. Liberchuk visited Dr. Itkin two to three times per week and testified that he would feel fine after the treatment, but then the next morning the pain would return. Mrs. Liberchuk complained to Dr. Itkin of a bad headache, pain in the neck and shoulders and lack of feeling in her right arm and fingers. Dr. Itkin gave Mrs. Liberchuk x-rays and ultrasounds and treated her with paraffin baths, heating pads and massage. Both Mr. and Mrs. Liberchuk treated with Dr. Itkin for five months and stopped treating in February of 2001. (N.T. 3/9/05, pp. 12-14, 30,64, 67.)

Dr. Itkin also referred the couple to a neurologist, Dr. Levin, and an orthopedic surgeon, Dr. Smith. Plaintiff chose not to call either Drs. Smith or Levin at trial and their reports were admitted into evidence through Pa.R.C.P. §1311.1, which allows for introduction of documents where the plaintiff stipulates to $15,000 as the maximum damages recoverable. (Exhibits P-2, P-3, P-5 and P-6.) These reports detailed numerous “impressions” such as “post-traumatic cephaldigia,” “post-traumatic anxiety reaction” and references to strain and sprain. None of these “impressions” were explained to the jury. Moreover, nowhere in any of Drs. Levin or Smith’s reports is it stated that any injuries suffered by the Liberchuks were the result of the August 6, 2000 incident.

Mr. Liberchuk saw Dr. Levin and Dr. Smith a total of one time each. The Levin report reflects that Mrs. Liberchuk saw Dr. Levin for pain and numbness in her “right side,” but never returned to see him. At a prior hearing on this matter, Mrs. Liberchuk testified that she saw Dr. Levin for pain in her arm and her “whole left side.” At trial, Mrs. Liberchuk claimed that the reference to “left side” must have been a misprint. (N.T. 3/9/ 05, pp. 33-34, 83.)

Both Mr. and Mrs. Liberchuk chose to continue with Dr. Itkin until February 2001, at which point he felt “much better” and she was “feeling a whole lot better.” Neither saw any doctors or chiropractors in the four years preceding trial, although both claimed to have lingering effects of the injuries. At the conclusion of Roman Liberchuk’s treatment with Itkin, $1,195.31 of medical bills remained unpaid. (N.T. 3/9/05, pp. 17-18, 30, 67, 83, 89.)

In addition to unreimbursed medical expenses, the Liberchuks also sought recovery for damage to the minivan. According to the damage estimate, the front bumper and fog headlights had to be replaced and the side loading door had to be repaired The total cost to repair the van was $1,151, but Mr. Liberchuk was only required to pay the deductible of $500. (N T. 3/9/05, pp. 31-32, 36, 38-42, 89; exhibit P-7.)

On March 9, 2005, the case was submitted to a juiy with defendant Nolte stipulating to liability. By agreement, the verdict sheet contained interrogatories for economic and noneconomic damages for Mr. Liberchuk and only noneconomic damages for Mrs. Liberchuk. (N.T. 3/9/05, p. 112.) As set forth above, the jury found that Mr. Liberchuk sustained economic damages in the amount of $1,695.13. The jury declined to award any noneconomic damages to either Mr. or Mrs. Liberchuk. (N.T. 3/9/05, pp. 137-38.)

On July 13, 2005, we denied the Liberchuks’ post-trial motions, seeking a new trial on the issue of damages, or in the alternative, for additur.

LEGAL ANALYSIS

Anna and Roman Liberchuk first assert that they are entitled to a new trial on the issue of damages because the jury verdict of zero for noneconomic damages was against the weight of the uncontroverted evidence. Specifically, they claim that a new trial on damages is warranted because the evidence regarding their injuries was unrebutted. The Liberchuks cite to Davis v. Mullen, 565 Pa. 386, 391, 773 A.2d 764, 767 (2001), which holds that an award of medical expenses without compensation for pain and suffering is only permissible if the jury did not believe the plaintiff suffered any pain and suffering. In relying on Davis, they argue that the jury did not have a reasonable basis to find that they did not suffer any pain and suffering, particularly because Nolte did not present any evidence to rebut their testimony on injuries. (See plaintiffs’ motion for post-trial relief, ¶¶13-16.) Because the jury’s verdict in this case was entirely reasonable, this court properly denied the Liberchuks’ request for a new trial.

The decision to grant a new trial lies within the discretion of the trial court and shall only be set aside where the court’s decision constitutes an abuse of discretion. Martin v. Evans, 551 Pa. 496, 501-502, 711 A.2d 458, 461 (1998). A new trial should only be granted where the verdict is so contrary to the evidence as to shock one’s sense of justice, and not where the evidence is conflicting or where the trial judge would have reached a different conclusion on the same facts. Davis, 565 Pa. at 390, 773 A.2d at 766. A damages verdict should be set aside for inadequacy, only when it appears to have been the “product of passion, prejudice, partiality or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff.” Kiser v. Schulte, 538 Pa. 219, 225, 648 A.2d 1, 4 (1994).

The existence of compensable pain and suffering is an issue of credibility for a jury who must believe that a plaintiff suffered pain before they can be compensated for that pain. Davis, 565 Pa. at 396, 773 A.2d at 769. “A jury is not required to award a plaintiff any amount of money if it believes that the injury plaintiff has suffered in an accident is insignificant.” Lombardo v. DeLeon, 828 A.2d 372, 375 (Pa. Super. 2003). An insignificant injury is an injury that the jury concludes did not result in compensable pain and suffering. Majczyk v. Oesch, 789 A.2d 717, 725 (Pa. Super. 2001). “[Wjhile the jury may have concluded that appellant [has] suffered some painful inconvenience for a few days or weeks after the accident, [the jury] may also have concluded that appellant’s discomfort was the sort of transient rub of life for which compensation is not warranted.” Ld. at 726.

The facts in Davis are instructive in analyzing the jury’s role in determining compensable pain and suffering. Davis was injured when he collided head-on with the defendant’s vehicle The impact caused Davis’ fully loaded tractor-trailer to turn over on its side. Davis was taken by ambulance to a hospital where he was discharged the same day and given a prescription for pain medication. At trial, Davis testified that he was in pain over the weekend, but returned to work the following Monday. Twenty days later he sought treatment from a chiropractor who diagnosed a muscle spasm and misalignment of the cervical spine. After 20 visits, Davis stopped treatment and did not take any pain medication for the injuries. Davis, 565 Pa. at 389, 773 A.2d at 765.

After the jury declined to award Davis any damages for pain and suffering, the trial court denied his motion for a new trial wherein he alleged that such an award was “grossly inadequate.” On appeal, the Pennsylvania Superior Court reversed and, relying on Dougherty v. McLaughlin, 432 Pa. Super. 129, 134, 637 A.2d 1017, 1019-20 (1994), found that a jury award is per se inconsistent if it compensates for medical expenses stemming from the injuries incurred but does not compensate for pain and suffering arising from those same injuries. Davis, 565 Pa. at 396, 773 A.2d at 769. The Pennsylvania Supreme Court reversed the Superior Court, specifically rejecting a per se rule that precludes a jury from awarding medical expenses without a corresponding award for pain and suffering. In affirming the trial court, the Supreme Court held that:

“[A] jury’s award of medical expenses without compensation for pain and suffering should not be disturbed where the trial court had a reasonable basis to believe that: (1) the jury did not believe the plaintiff suffered any pain and suffering, or (2) that a preexisting condition or injury was the sole cause of the alleged pain and suffering.” Davis, 565 Pa. at 391, 773 A.2d at 767.

Here, the Liberchuks argue that there was not a reasonable basis for the jury to find that they did not suffer any pain and suffering because their evidence of injury was unchallenged. We disagree.

In addition to the fact that neither Mr. nor Mrs. Liberchuk sought medical attention immediately after the incident, through cross-examination, Nolte’s counsel was able to establish that:

• Mrs. Liberchuk did not seek medical assistance for any of her injuries until five weeks after the accident. (N.T. 3/9/05, p. 30);

• Although Mrs. Liberchuk testified that the right side of her body hit the right side of the car, she previously testified under oath that the right side of her body had hit the dashboard. (N.T. 3/9/05, pp. 21-23);

• Mrs. Liberchuk testified that following the accident, she suffered from shooting pains down the right side of her body. However, on cross-examination, she acknowledged that in prior sworn testimony, she stated that she suffered from shooting pains down the left side of her body. (N.T. 3/9/05, pp. 32-33); and

• Mrs. Liberchuk testified that as a result of this incident, she was unable to drive her car, or otherwise leave the house, for two weeks because she was too scared. Roman Liberchuk acknowledged that in prior sworn testimony, he stated that his wife drove him to work during this time period because he was unable to do so himself. (N.T. 3/9/05, pp. 73-74).

As for Roman Liberchuk’s claim for pain and suffering, while he asserted that he began to suffer from shoulder pain, neck pain, and headaches the night of the accident, he acknowledged that he went to work the next day and waited five weeks before seeking any type of medical assistance. (N.T. 3/9/05, pp. 69-71.) Mr. Liberchuk continued to see a chiropractor until February 2001, six months after the accident, at which point he felt “much better” and never sought further treatment. (N.T. 3/9/05, p. 67.)

These facts are very similar to those in Davis, where the plaintiff did not miss any work as a result of the accident. Moreover, Davis waited 20 days after the accident before visiting a doctor while the Liberchuks waited five weeks. Additionally, in Davis, the jury’s verdict of zero damages was upheld despite the fact that Davis was taken to a hospital by ambulance after a head-on collision. In contrast, the Liberchuks swerved to avoid debris, ran over a radiator and drove home after the accident, refusing medical treatment. Given these facts, it was entirely reasonable for the jury to decline to award pain and suffering damages to the Liberchuks. See Davis, 565 Pa. at 396-97, 773 A.2d at 770 (defendant’s cross-examination of plaintiff revealed inconsistencies sufficient for the jury to find that plaintiff suffered no compensable pain and suffering).

In their motion for post-trial relief, the Liberchuks also assert that the “dispositive” reason the Davis court upheld the jury’s zero damages for pain and suffering was due to the treating physician’s testimony that he could not say for certain if the injury was related to the accident at issue or prior accidents. (See plaintiffs’ memorandum of law in support of their motion for post-trial relief). Davis was not decided on this basis, Rather, the court upheld the zero verdict because Davis admitted he did not miss any work; he waited 20 days after the accident before visiting a doctor; he stopped treating after only 20 visits; his lack of follow-up treatment and due to the fact that Davis’ doctor could not say for certain if the injury was related to the accident. Davis, 565 Pa. at 396-97, 773 A.2d at 770.

The Liberchuks’ reliance on Marsh v. Hanley, 856 A.2d 138 (Pa. Super. 2004) and Burnhauser v. Bumberger, 745 A.2d 1256 (Pa. Super. 2000), which prohibits a zero damage award for pain and suffering, as precedent, is also misplaced. In Marsh, the plaintiff’s vehicle was struck twice during an accident and spun around 180 degrees. Plaintiff was taken by ambulance to the hospital and missed significant periods of time from work. Marsh, 856 A.2d at 139. Under these unique set of facts, the court found that a zero award for pain and suffering was appropriate. The Marsh facts are in stark contrast to the case before us where the Liberchuks were involved in a far less serious accident, refused medical treatment at the scene, and missed no time from work.

Similarly, the plaintiff in Burnhauser was involved in a collision with an on-coming vehicle, was taken immediately from the scene to the emergency room and consulted an orthopedic specialist six days after the accident. Burnhauser, 745 A.2d at 1258. Again, these facts are much different than the case before us where, among other things, the Liberchuks waited five weeks before seeking treatment from a chiropractor.

Lastly, the Liberchuks argue that in the alternative to a new trial on damages, additur is warranted because of the inadequacy of the jury verdict. To support this argument, they rely upon Fiorenza v. Kohn, 396 Pa. Super. 1, 3, 577 A.2d 1384, 1386 (1990), where the Pennsylvania Superior Court affirmed the trial court’s granting of a motion for additur based on the inadequacy of the verdict.

Fiorenza is not applicable to this case. In Fiorenza, the trial court, sitting as a fact-finder in a car accident case, was presented with stipulated facts. Upon review of its initial damage award, the trial court increased its verdict due to an “erroneous interpretation of the facts.” Fiorenza, 396 Pa. Super. at 4, 577 A.2d at 1386. This procedural scenario is inapplicable to the case before us where a jury’s verdict was rendered on a disputed set of facts.

The test for determining inadequacy of a verdict is whether the award is so inadequate that it should not be permitted to stand. Fiorenza, 396 Pa. Super. at 3, 577 A.2d at 1386. Granting the request for additur would require this court to set aside an entirely reasonable jury verdict. For the same reasons that it was correct to deny the Liberchuks’ request for a new trial, it was also proper to deny their request for additur.

CONCLUSION

The jury’s verdict should not be set aside as it was not in any way unreasonable. Consequently, the Liberchuks’ motion for post-trial relief was properly denied.

      . The jury did not consider economic damages for Anna Liberchuk because she did not present evidence to support such a claim. (N.T. 3/ 9/05, p. 113.)

      . The medical bills for treatment that the Liberchuks eventually received were, in fact, paid under the Liberchuks’ car insurance carrier, with the exception of $1,195.13 that remained unpaid. This amount was sought by the Liberchuks in this litigation. (N.T. 3/9/05, p. 72.)

      . Dr. Itkin did not testify at trial. Her reports were introduced pursuant to Pa.R.C.P. §1311.1.

      . This award was consistent with the $1,195.31 in medical bills from Dr. Itkin and the $500 out-of-pocket expense for property damage.

      . In Dougherty, plaintiff presented uncontradicted medical evidence that his two-day hospitalization included treatment for injuries to the face, neck and head, resulting in permanent scarring and nerve damage, a fractured rib, whiplash, a concussion and torn shoulder ligaments. The Superior Court held that the jury’s award of damages for medical expenses, but not for pain and suffering, was inconsistent and accordingly, remanded the case for a new trial. Dougherty, 432 Pa. Super. at 130, 135, 637 A.2d at 1018, 1020.

      . Additur is a trial court’s order that increases the damages awarded by a jury to avoid a new trial. [Black’s Law Dictionary, 39 (7th ed. 1999).]