author: MINORA, J.,

text:
    Kremp v. Yavorek
    May 24, 2002
    C.P. of Lackawanna County,
    no. 99 CV 3759.

      Mark S. Fridkin, for plaintiffs.

      Mark T. Perry and Paul J. Wylam, for defendants.
   MINORA, J.,

I. INTRODUCTION

Currently before the court is the motion for partial summary judgment filed by the defendants, Amy Yavorek M.D., Gary L. Reedy M.D. and OB-GYN Consultants Ltd. The basis for their motion is that plaintiffs’ cause of action alleging lack of informed consent (see paragraph 18(i) of plaintiffs’ complaint filed on July 29, 1999) is not recognized by law where a vaginal birth is performed after prior birth techniques performed on the plaintiff mother were done by cesarean section (popularly known as VBAC or vaginal birth after cesarean section).

By way of background relevant to the instant motion, plaintiffs filed a complaint sounding in medical malpractice, wrongful death and a survival action over the stillborn birth of the minor plaintiff decedent, Madison Jordan, which occurred on or about February 26, 1998.

A review of plaintiffs’ complaint, paragraphs 18(a) through (j) reveal that all of the allegations sound in negligence except paragraph 18(i) which states:

“(18) The negligence, carelessness and malpractice of the defendants, and each of them, jointly and/or severally, consisted of the following: ...

“(i) failing to provide the plaintiff, Gwendolyn Kremp, with informed consent relating to a vaginal birth after cesarean section;....”

After the pleading and discovery stage was closed, the defendants, Amy Yavorek M.D., Gary L. Reedy M.D. and OB-GYN Consultants Ltd. filed a motion for partial summary judgment on February 6, 2002 indicating that plaintiffs’ informed consent cause of action should be dismissed with prejudice and claiming that the above defendants’ delivery techniques utilizing natural childbirth and/or vaginal birth techniques do not fall within the categories of medical procedures requiring a physician to obtain informed consent from their patient as per 40 P.S. §1301.811-A. They are claiming that the plaintiffs have failed to produce evidence of facts essential to an informed consent cause of action that would require the issue to be submitted to the jury. A supportive brief was also filed on February 6, 2002.

On March 6, 2002, the plaintiffs filed an answer to defendants’ motion for partial summary judgment and a supportive brief. Since the court has issued an attachment order dated February 19,2002, and filed on February 20, 2002, setting a date certain for jury selection on July 15, 2002, and trial beginning July 24, 2002, it is imperative that we dispose of the instant motion for partial summary judgment regarding the cause of action for lack of informed consent. The record is now ripe to do so.

n. issue

Does plaintiffs’ claim for lack of informed consent fail as a matter of law when the current birth procedure was conducted via vaginal birth/natural childbirth even though prior pregnancies involving the plaintiff mother were performed via cesarean section (VBAC)?

III. DISCUSSION

A. Standard for Summary Judgment

A party may move for summary judgment after the pleadings are closed in two situations. First, when there is no genuine issue of material fact that can be established by additional discovery, and second, after discovery, if an adverse party bearing the burden of proof has failed to produce evidence of essential facts so as to warrant the submission of the issue to a jury. Pa.R.C.P. 1035.2; Fazio v. Fegley Oil, Co. Inc., 714 A.2d 510, 512 (Pa. Commw. 1998). Further, under the revised rules, a court may grant summary judgment where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Boyer v. Walker, 714 A.2d 458, 459 (Pa. Super. 1998); Cappelli v. York Operating Co. Inc., 711 A.2d 481, 483 (Pa. Super. 1998). When making this determination, the trial court must consider the evidence in a light most favorable to the non-moving party. Pa.R.C.P. 1035.1-1035.4; Sebelin v. Yamaha Motor Corp. USA, 705 A.2d 904, 907 (Pa. Super. 1998).

Rule 1035.3(a) requires that the adverse party file a response setting forth the facts in dispute within 30 days after the service of the motion for summary judgment. Pa.R.C.P. 1035.3(a); Henninger v. State Farm Insurance Co., 719 A.2d 1074, 1076 (Pa. Super. 1998); Stilp v. Hafer, 701 A.2d 1387, 1390 (Pa. Commw. 1997). Where amotion for summary judgment has been properly supported with corroborating documentation, the adverse party must demonstrate by specific facts contained in their depositions, answer to interrogatories, admissions or affidavits that there is a genuine issue of material fact for trial. Sovich v. Shaughnessy, 705 A.2d 942, 944 (Pa. Commw. 1998), citing Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991); Collelli v. Spall, 102 Lacka. Jurist 519, 522-23 (2001); Orix Credit Alliance Inc. v. Minuteman Towing Inc., 103 Lacka. Jurist 65, 69 (2002).

B. The Doctrine of Informed Consent

The governing statute regarding informed consent in effect at the time of this instant action is 40 P.S. §1301.811-A which states in pertinent part:

“(a) Except in emergencies, a physician owes a duty to a patient to obtain consent of the patient or the patient’s authorized representative prior to conducting the following procedures:

“(1) Performing surgery, including the related administration of anesthesia.

“(2) Administering radiation or chemotherapy.

“(3) Administering a blood transfusion.

“(4) Inserting a surgical device or appliance.

“(5) Administering an experimental medication, using an experimental device or using an approved, medication or device in an experimental manner.

“(b) Consent is informed if the patient has been given a description of a procedure set forth in subsection (a) and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to the procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide.

“(c) Expert testimony is required to determine whether the procedure constituted the type of procedure set forth in subsection (a) and to identify the risks of that procedure, the alternatives to that procedure and the risks of these alternatives.

“(d) A physician is liable for failure to obtain the informed consent only if the patient proves that receiving such information would have been a substantial factor in the patient’s decision whether to undergo a procedure set forth in subsection (a).”

The informed consent doctrine requires physicians to provide patients with “material information necessary to determine whether to proceed with the surgical or operative procedure or to remain in the present condition.” Duttry v. Patterson, 565 Pa. 130, 134, 771 A.2d 1255, 1258 (2001). (emphasis added)

Material information provided by a physician must give the patient “a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results.” Id. (emphasis added) “Thus, a physician must ‘advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation. ’ ” Id. (emphasis added) Moreover, “[a] claim that a physician failed to obtain the patient’s informed consent sounds in battery.” Id.

In the case at hand, plaintiff’s claim sounds in negligence, not battery. The crux of their claim is that the doctors failed to perform a cesarean section and went forth with a vaginal birth after prior pregnancies were done via cesarean section. They claim that the decision to proceed with natural childbirth/vaginal birth was done without informed consent of the alleged more prudent alternative of a repeat cesarean section. (See plaintiffs’ complaint paragraph 18, paragraph 2 of plaintiffs’ answer to defendants’ motion for summary judgment and exhibit “B” to said answer — Dr. Schwartz’s expert report of November 26, 2002 — plaintiffs’ expert report.)

As we indicated above, authority for the doctrine of informed consent arises under a traditional battery theory. See Duttry, supra. It is the invasive nature of the surgical or operative procedure involving a surgical cut and the use of surgical instruments that gives rise to the need to inform the patient of risks prior to surgery. Morgan v. MacPhail, 550 Pa. 202, 704 A.2d 617 (1997); Marino v. Ballestras, 749 F.2d 162 (3d Cir. 1984). Failure to advise on surgical alternatives does not give rise to a claim for lack of informed consent. Failure to advise on those surgical techniques actually used and enumerated in 40 P.S. §1301.811-A would give rise to a lack of informed consent/battery claim.

As a matter of law, informed consent is not required before proceeding with the non-surgical procedure of natural or vaginal childbirth. It is not required that a physician give informed consent for surgical alternatives to a non-surgical procedure actually being employed. See Sinclair by Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137 (1993); Baird v. Goldstein, 1998 WL 221030 (E.D. 1998); Southard v. Temple University Hospital, 566 Pa. 335, 342-43, 781 A.2d 101, 105-106 (2001).

Clearly, as a matter of law, plaintiffs have pled and demonstrated in discovery a prima facie case of negligence. However, plaintiffs as a matter of law cannot sustain a cause of action for lack of informed consent and battery when the primary medical procedure at issue was a non-surgical vaginal or natural childbirth. The issue of whether a cesarean section should have been used is legally relevant to their negligence theory, however, not for a battery or lack of informed consent theory.

Therefore, defendants’ motion for partial summary judgment will be granted as to a lack of informed consent.

An appropriate order will follow.

ORDER

And now to wit, May 24, 2002, upon due consideration of defendants’ Amy Yavorek M.D., Gary L. Reedy M.D., and OB-GYN Consultants Ltd., motion for partial summary judgment regarding plaintiffs’ informed consent cause of action and the learned and able arguments and briefs of counsel and in accordance with the foregoing memorandum, it is hereby ordered and decreed, that said motion for partial summary judgment is granted.

Plaintiffs’ cause of action based on lack of informed consent and paragraph 18(i) of plaintiffs’ complaint dealing with alleged lack of informed consent are dismissed with prejudice.

      . We note that the “old” informed consent statute set forth in 40 P.S. §1301.811-A has been repealed by the Medical Care Availability and Reduction of Error Act set forth at 40 P.S. §13101.101 etseq.The new informed consent statute is set forth at 40 P.S. §1303.504. Suffice to say it is similar to 40 P.S. §1301.811-A. However, 40 P.S. §1303.504 became effective on March 20,2002. See section 5108(V) of 2002 Pa. Legis Service Act 2002-13 (H.S. 1802). Therefore, this case is governed by the old informed consent statute, 40 P.S. §1301.811-A and the cases interpreting 40 P.S. §1301.811-A.


source: Caselaw Access Project

author: WETTICK JR., J.,

license: Public Domain

text:
    Mistick PBT v. Liss

      May 29, 2002
    C.P. of Allegheny County,
    no. GD94-19256.

      Stanley R. Geary, R Jerome Richey and James F. Glunt, for plaintiffs.

      Randall G. Hurst and Michael D. Reed, for defendant Liss.

      Thomas G. Michalek, for defendants Barrera.

      Eric L. Horne, for defendants Marsonek.

      Scott A. Gould, Curtis N. Stambaugh and Kandice J. Kerwin, for defendants Handee Marts Inc.

      David G. Ries, James M. Ginocchi and Kevin P. Allen, for defendant board.

      Joseph E. Linehan, for defendants Latterman.
   WETTICK JR., J.,

The summary judgment motions filed by defendants raise the issue of whether claims which plaintiffs have raised under the Pennsylvania Storage Tank and Spill Prevention Act, 35 P.S. §6021.101 et seq., are governed by a two-year limitation period governing torts (42 Pa.C.S. §5524(7)) or a six-year “catchall” limitation period (42 Pa.C.S. §5527). This issue has never been addressed by any Pennsylvania appellate court.

Section 5524(7)’s two-year limitation period applies to any “action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass.” Section 5527’s six-year catchall limitation period applies to “[a]ny civil action or proceeding which is [not] subject to another limitation period specified in this subchapter.”

The two-year limitation period will apply if each of the claims that may be raised in a private action under the Storage Tank Act resembles an action to recover damages for injury to person or property founded on negligent, intentional, or otherwise tortious conduct or other actions or proceedings sounding in trespass. However, if all claims that may be raised under this legislation cannot be characterized in this fashion, the six-year catchall limitation period will apply.

In Gabriel v. O’Hara, 368 Pa. Super. 383, 534 A.2d 488 (1987), the trial court ruled that claims for violations of the Unfair Trade Practices and Consumer Protection Law, 73 PS. §§201-1 — 201-9.2, are subject to the two-year limitation period of section 5524(7) governing tortious conduct, including fraud or deceit, because claims under the Consumer Protection Law essentially involve misconduct constituting fraud or deceit. The Superior Court reversed. It ruled that the controlling issue is not whether particular claims sound in tort but rather whether each claim that may be brought under the Consumer Protection Law resembles a claim for fraud or deceit.

The court stated that unfair trade practices which the Consumer Protection Law describes include what might be analogized to misappropriation, trademark infringement, disparagement, false advertisement, fraud, breach of contract, and breach of warranty. Thus, causes of action based on the Consumer Protection Law are governed by a six-year limitation period.

“We are unable, therefore, to characterize all the multifarious claims that may be brought under the [Consumer Protection Law] as ‘fraud’ or ‘deceit.’ Instead, the [Consumer Protection Law] creates a civil action which is separate and distinct from appellants’ other causes of action and for which the legislature provided no limitations period. The language of section 5527(6) [now section 5527] of the Judicial Code, however, is clear and unambiguous ... as to what period of limitation shall apply in such instances____” Id. at 396,534 A.2d at 495. (footnote omitted)

Private actions under the Storage Tank Act are governed by 35 PS. §6021.1305(c) which reads, in relevant part, as follows: “[A]ny person having an interest which is or may be affected may commence a civil action on his behalf to compel compliance with this Act or any rule, regulation, order, or permit issued pursuant to this Act by any owner, operator, landowner or occupier alleged to be in violation of any provision of this Act or any rule, regulation, order or permit issued pursuant to the Act.” In Centolanza v. Lehigh Valley Dairies Inc., 540 Pa. 398, 658 A.2d 336 (1995), the Pennsylvania Supreme Court ruled that under this provision a property owner may bring a private action against a neighboring property owner responsible for the condition of the plaintiff’s property to recover payments for anticipated oil contamination cleanup costs and diminution in the value of property.

It is defendants’ position that private claims under section 1305(c) are the equivalent of common-law causes of action for nuisance and trespass. The only difference is that the statutory action creates presumptions of liability and permits the award of counsel fees. Thus, any private action under section 1305 is essentially a tort action governed by the two-year limitation period of 42 Pa.C.S. §5524(7). In support of this position, defendants cite section 1304 of the Act (35 P.S. §6921.1304) which provides that a violation of this Act or any order or regulation adopted by the department or of permits issued by the department shall constitute a public nuisance which the department shall have the authority to order any person causing the public nuisance to abate, and section 1305 (35 P.S. §6021.1305) which is headed “Suits to abate nuisances and restrain violations” and which provides in section 1305(a) that “Any activity or condition declared by this Act to be a nuisance, or which is otherwise in violation of this Act, shall be abatable in the manner provided by law or equity for the abatement of public nuisances.”

As I previously discussed, the controlling issue is whether each claim that may be brought under section 1304(c) can be characterized as an action or proceeding (1) “to recover damages for injury to person or property” and (2) “founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass.” The wrongdoing upon which the claims raised in Centolanza are based — a property owner’s breach of its duty not to engage in conduct on its property that interferes with a neighboring owner’s use of its property — constitutes a private nuisance under the common law. Thus, I would likely agree with defendants that statutory claims under section 1304(c) should be characterized as actions sounding in trespass to recover damages to injury to property if the only claims that may be raised in any private action brought under the Storage Tank Act are those involving a defendant’s use of its property in a manner that interferes with the use and enjoyment of another property.

However, other claims that may be raised under section 1305(c) cannot be characterized as actions or proceedings “to recover damages for injury to person or property” or as actions or proceedings “founded on negligent, intentional or otherwise tortious conduct or any other action or proceeding sounding in trespass.”

The Superior Court opinion in Centolanza v. Lehigh Valley Dairies Inc., 430 Pa. Super. 463, 635 A.2d 143 (1993) (which was affirmed by the Pennsylvania Supreme Court), concluded that “the measures and recoveries available to DER are equally available in a private action.” Id. at 475, 635 A.2d at 149. Thus, a private cause of action may address the following corrective actions:

“Compliance with the Act includes, but is not limited to, compelling owners and operators to: register their tanks, §6021.503; pay annual registration fees, §6021.501(a)(l); obtain permits and pay fees for those permits, §6021.504; demonstrate financial responsibility for releases, §6021.701; take corrective action after an order of DER, §6021.1302; pay costs of abatement to DER or authorized third parties to do so, §6021.1302(b); comply with regulations for use and operation of the tanks, §6021.501; and not to cause a public nuisance, §6021.1304.” Id. at 474, 635 A.2d at 147-48.

In Juniata Valley Bank v. Martin Oil Co., 736 A.2d 650 (Pa. Super. 1999), Juniata purchased property that had been previously owned by Martin Oil, a remote prior owner (i.e., Juniata did not acquire the property from Martin). Martin Oil had stored petroleum products in underground storage tanks throughout its occupancy of the property. After purchasing the property, Juniata discovered the presence of an underground storage tank and petroleum hydrocarbon contamination in the soil and underground water. Juniata brought an action against Martin that included a claim under the Storage Tank Act to recover the costs of abatement and the diminution in the value of the property. Juniata alleged that Martin’s operations and excavation activities on the property caused the contamination.

The initial issue that the court addressed in Juniata Valley Bank was whether a current owner may sue a remote prior owner of the same property for losses sustained because of contamination with petroleum products due to the prior owner’s failure to comply with the Storage Tank Act. The court ruled that since a private action may be brought by any person having an interest which may be affected against any owner, operator, landowner, or occupier alleged to have been in violation of the Act, the bank had standing, derived from its ownership of the property, to bring this lawsuit.

The claims that Juniata was permitted to pursue cannot be characterized as claims “founded on negligent, intentional, or otherwise tortious conduct... [or] sounding in trespass.” 42 Pa.C.S. §5524(7). At common law, a property owner had no duty to subsequent owners to use its land in a manner that did not diminish the value of that land. Common-law causes of action do not impose any restrictions on an owner’s use of its property for the protection of subsequent owners or impose any liability based on the manner in which the prior owner used its property (other than disclosure requirements imposed under tort law governing fraud and misrepresentation). In the absence of fraud or contractual provisions to the contrary, a subsequent purchaser takes the property as is.

According to Gabriel v. O’Hara, supra at 396, 534 A.2d at 495, the controlling issue is whether or not the Storage Tank Act “creates a civil action which is separate and distinct” from common-law tort actions. In Philadelphia Electric Co. v. Hercules Inc., 762 F.2d 303 (3d Cir. 1985), the court considered whether any common-law causes of action were available to a property owner which had incurred expenses in excess of $335,000 to partially abate an environmental condition on the property created by a remote prior owner. The property owner sued a successor of the remote prior owner to recover the costs incurred in partially abating the condition and other losses. The claims were based on theories of private and public nuisance. The jury returned a verdict in favor of the plaintiff. The court of appeals reversed.

The court ruled that a vendor cannot be held liable to a remote vendee on a private nuisance theory because the doctrine is limited to a property owner’s responsibility not to engage in conduct that interferes with the use and enjoyment of neighboring land. “Where, as here, the rule of caveat emptor applies, allowing a vendee a cause of action for private nuisance for conditions existing on the land transferred — where there has been no fraudulent concealment — would in effect negate the market’s allocations of resources and risks, and subject vendors who may have originally sold their land at appropriately discounted prices to unbargained-for liability to remote vendees.” Id. at 314-15.

The court ruled that recovery could not be based on the doctrine of public nuisance because of the requirement for standing to sue for public nuisance that the harm be of a different kind from that suffered by the general public. The court stated that this requires a showing that the subsequent purchaser suffer a “particular damage” in the exercise of a right common to the general public. In this case, the subsequent purchaser had only been specially harmed in the exercise of its private property rights over the site. Consequently, the doctrine did not apply.

Also, see Diffenderfer v. Staner, supra, 722 A.2d at 1110 (Court followed the ruling in Philadelphia Electric Co. v. Hercules Inc., supra, “precluding private nuisance claims by subsequent owners or tenants for conditions existing on the very land transferred”); Andritz Sprout-Bauer Inc. v. Beazer East Inc., 174 F.R.D. 609 (M.D. Pa. 1997) (former owner is not liable to subsequent owner for contamination cleanup costs incurred in connection with two sites which it previously owned under theories of private and public nuisance); Cross Oil Co. v. Phillips Petroleum Company, 944 F. Supp. 787 (E.D. Mo. 1996) (a party has no duty to a subsequent owner to maintain its property in a certain condition; the law of negligence cannot be expanded to allow a current owner of property to seek recovery against a prior landowner for a condition created on property by the prior owner); Truck Components Inc. v. K-H Corp., supra, 1995 WL 692541 at 12 (current owner cannot maintain a nuisance claim, private or public, against a prior owner); and Hanlin Group Inc. v. International Minerals & Chemical Corp., 759 F. Supp. 925, 935-37 (D. Me. 1990) (private nuisance action cannot be brought because doctrine does not apply to successive landowners; public nuisance claim is dismissed because impairment of value of plaintiff’s property is not a special injury in the exercise of right common to the general public).

But, see Tosco Corp. v. Koch Industries Inc., 216 F.3d 886, 895-96 (10th Cir. 2000) (former owner that incurred remediation expenses was awarded a portion of the response costs under a public nuisance claim against another, prior former owner); and Westwood Pharmaceuticals Inc. v. National Fuel Gas Distribution Corp., 737 F. Supp. 1272, 1281-82 (W.D.N.Y. 1990) (subsequent owner can bring public nuisance action against prior owner to recover response costs).

Because the purposes of the Storage Tank Act and obligations that it imposes on prior owners of property exceed the purposes of tort law and the obligations imposed through tort law, the scope of the claims that may be raised under the Storage Tank Act exceed the scope of 42 Pa.C.S. §5524(7) which applies only to an action “to recover damages for injury to person or property” which is founded “on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass.” The words of 42 Pa.C.S. §5524(7) are words of common usage that should be given their ordinary meaning: The clause “damages for injury to persons or property” ordinarily means injury to third persons or property of another. Tortious conduct ordinarily refers to conduct injuring the property of a third person. The language of section 5524(7) does not reach an owner’s use of its land in a manner that interferes with a subsequent owner’s use of the same land.

Possibly, the subsequent owner’s claim against the prior owner may be characterized as an indemnification claim. The subsequent owner may claim that the law imposes an absolute duty on the prior owner to restore the land and permits the subsequent owner to seek reimbursement from a prior owner whose use of the land caused the condition. However, such an indemnification claim is not a tort claim because the subsequent owner and prior owner are not joint tort-feasors. This would be a statutory indemnification claim; there is no language in section 5524 covering a statutory indemnification claim.

As I mentioned at the beginning Of this opinion, the Pennsylvania appellate courts have never addressed the issue of what limitations period covers suits under section 1305 of the Storage Tank Act. The issue, however, has been considered in two common pleas court opinions and two federal court rulings.

In Ziegler v. Lynn, 33 D.&C.4th 143 (Lehigh Cty. 1996), and in Buttzville Corp. v. Gulf Oil Corp., 25 D.&C.4th 172 (Lancaster Cty. 1995), the courts ruled that claims under the Storage Tank Act are governed by a 20-year limitation period. In Two Rivers Terminal L.P. v. Chevron USA Inc., 96 F. Supp.2d 432 (M.D. Pa. 2000), the court applied the two-year limitation period based on the application of 42 Pa.C.S. §5524(7). In Shooster v. Amoco Oil Co., 2001 W.L. 882971 (E.D. Pa. 2001), the court, without discussion, followed the Two Rivers Terminal ruling.

In this case, plaintiffs are not contending that their claims under the Storage Tank Act are governed by a 20-year limitation period. They apparently agree with the ruling of the court in Two Rivers Terminal that the 20-year limitation period set forth in 35 PS. §6021.1314 refers only to proceedings instituted by the Commonwealth to recover civil or criminal penalties.

Two Rivers Terminal involved a fact situation very similar to the fact situation in the present case. Chevron had constructed a terminal that had six aboveground storage tanks and two underground storage tanks. It sold its assets to Cumberland Farms in 1986; Cumberland Farms never stored petroleum products at the terminal. In 1991, Cumberland Farms sold the terminal to Two Rivers. After Two Rivers became aware of contamination, it filed a complaint that included claims against Chevron under the Storage Tank Act. The court ruled that the private action can best be described as a tort claim akin to a common-law claim for nuisance:

“We agree with the defendant’s position that a private Tank Act claim is essentially a tort. To begin with, the Tank Act’s citizen-suit provision authorizes what can best be described as a tort claim akin to a common-law claim for nuisance; the Tank Act recognizes that a violation of the Act can be abated as a nuisance. See 35 RS. §6021.1305(a). Additionally, the factual underpinnings of a private claim under section 1305(c) (here a release of petroleum products into the land and water) are the equivalent of a common-law cause of action for nuisance without the common-law limitations. In fact, a common-law cause of action for nuisance is a tort. Further, under the Pennsylvania Supreme Court’s interpretation of the citizen-suit provision, a person injured by a violation of the Act can recover as damages the ‘costs of cleanup and diminution in property value.’ At least the latter element of damages is recoverable under the common law of nuisance and probably the first as well.” (citations omitted)

I am not following Two Rivers because I disagree with the court’s conclusion that Two Rivers’ claim against Chevron under the Storage Tank Act was essentially a tort claim akin to a common-law claim for nuisance.

SUMMARY

Claims that may be raised under section 1305 of the Storage Tank Act are not restricted to claims that closely resemble common-law tort claims. Claims described in the Superior Court opinion in Centolanza (see p. 238 of this opinion) and claims permitted in Juniata Bank cannot be characterized as actions or proceedings “to recover damages for injury to person or property” or as actions or proceedings “founded on negligent, intentional, or otherwise tortious conduct or any other action or proceeding sounding in trespass” within the meaning of 42 Pa.C.S. §5524(7).

For these reasons, I enter the following order of court:

ORDER

On May 29,2002, it is hereby ordered that defendants’ summary judgment motions based on the claim of a two-year limitation period are denied. Status conference will be held on June 13, 2002 at 1:30 p.m.

      . However, section 1305(c) provides that venue in civil actions “shall be as set forth in the Rules of Civil Procedure concerning civil actions in assumpsit.” (emphasis added)

      . Restatement (Second) of Torts §840A, Continuing liability after transfer of land, cmt.c states:
      “If the vendor or lessor has himself created on the land a condition that results in a nuisance, he cannot escape liability for the continuation of the nuisance by selling or leasing the land to another.... [H]is responsibility toward those outside of his land is such that he is not free to terminate his liability to them for the condition that he has himself caused or concealed, by passing the land itself on to a third person.” (emphasis added)

      . Under the common law, a person is subject to liability to another for trespass if this person intentionally intrudes on the land of the other. Restatement (Second) of Torts §158. A private nuisance, on the other hand, is a nontrespassory invasion of another’s interest in the use and enjoyment of other private or public property. Restatement (Second) of Torts §821D; Diffenderfer v. Staner, 722 A.2d 1103, 1109-10 (Pa. Super. 1998). A public nuisance is an unreasonable interference with a right common to the general public. Restatement (Second) of Torts §821B, where an individual must have “suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference,” Restatement (Second) of Torts §821C; City of Erie v. Stelmack, 780 A.2d 824, 827 (Pa. Commw. 2001) (public nuisance is an activity “that annoys the whole community in general, and not merely some particular person, and produces no greater injury to one person than to another. ...” (emphasis added)).

      . The court also ruled that the two-year statute of limitations governing private nuisance claims does not cover public nuisance claims.

      . The remedies provided for by the Storage Tank Act, as construed in Juniata Valley Bank and Two Rivers, are not limited to costs that a property owner will incur in order to protect third parties. The remedies include diminution of the value of the property and costs incurred to remove petroleum products that will not contaminate underground water or migrate to another property. In Two Rivers, for example, no major cleanup was ordered by the federal or state environmental agencies. For the most part, only monitoring of the site had occurred and “natural attenuation” was part of the solution to abate the contamination at the site. Id. at 497. Thus, it would appear that most of the damages which Two Rivers was seeking related to the loss of the use of the property.


author: FORD, J.,

text:
    Lebish v. Whitehall Manor Inc.

      June 12, 2002
    C.P. of Lehigh County,
    no. 2001-C-2226.

      John O’Rourke, for plaintiffs.

      William J. Mundy, for defendant.
   FORD, J.,

This matter is before the court on defendant’s preliminary objections to plaintiffs’ complaint. By agreement of the parties, the issues were submitted on brief.

According to the complaint, plaintiffs’ decedent, Theresa Lebish, resided at the facility of the defendant, Whitehall Manor Inc., from approximately November 16, 1999, to December 31, 1999. Mrs. Lebish was an 82-year-old widow. The complaint describes Whitehall Manor only as a Pennsylvania corporation which contracted to provide care to Mrs. Lebish.

According to the complaint, Mrs. Lebish’s stay at Whitehall Manor was marred by several falls; she was choked and punched by another resident of the facility; had money stolen from her pocketbook; and suffered other unfortunate incidents. Her physical condition deteriorated in that she developed pneumonia, gained weight, and was less active than she was before her time at Whitehall Manor.

On December 31, 1999, Mrs. Lebish fell again and was admitted to the hospital with a compression fracture of the lower back. Mrs. Lebish passed away on February 1, 2000.

Suit was brought on January 10,2001, by the personal representatives of Mrs. Lebish’s estate. Plaintiffs’ complaint has counts for breach of contract, negligence, violations of the unfair trade practice and consumer protection laws, breach of express and implied warranties, and fraudulent misrepresentation. Each claim relates to Mrs. Lebish’s residence at Whitehall Manor.

Defendant’s first preliminary objection is a motion to strike for failure of the pleading to conform to law. This objection is based on the fact that the plaintiffs failed to attach to the complaint a copy of the contract between Mrs. Lebish and Whitehall Manor.

Pennsylvania Rule of Civil Procedure 1019(i) provides:

“When any claim or defense is based upon a writing, the pleader shall attach a copy of the writing, or the material part thereof, but if the writing or copy is not accessible to the pleader, it is sufficient so to state, together with the reason, and to set forth the substance in writing:”

In paragraph 4 of the complaint, plaintiffs state that “[a] copy of the contract is unavailable to plaintiffs.” Plaintiffs attached a copy of a reservation agreement between Mrs. Lebish, Cynthia Bmce as a concerned party, and Whitehall Manor to hold a place for Mrs. Lebish at the facility.

Common sense dictates that “[wjritings that are in the possession of an opposing party need not be attached to a pleading, because in such instances, the reason for this subdivision of the Rule (Rule 1019(i)) is not present.” Goodrich-Amram 2d, volume 2, §1019(i):8,pp. 307-308, citing Leiby v. New Hampshire Insurance Co., 51 D.&C.2d 643 (1971); Bloomsburg Mills Inc. v. Sordoni Construction Co., 14 D.&C.2d 551 (1958), aff’d, 401 Pa. 358, 164 A.2d 201 (1960).

Whitehall Manor was a party to the residence agreement entered with Mrs. Lebish. Accordingly, it has or should have in its possession a copy of the contract. The reason for the rule does not exist in such a situation. Accordingly, the complaint will not be stricken for failure to conform to law. We cannot imagine that there is any confusion about the contract document upon which suit is brought. If there is more than one contract signed by Mrs. Lebish or there is truly confusion about the document upon which suit is based, the court stands ready to assist upon further application during discovery.

The second preliminary objection is a demurrer to the contract claim. Defendant contends that this case sounds primarily in tort and that Pennsylvania law, therefore, requires that an associated contract claim be dismissed. Defendant refers to the contract claim as redundant.

A demurrer should be granted only where, on the facts averred, the law provides with certainty that no recovery is possible. Bauer v. Pottsville Area Emergency Medical Services Inc., 758 A.2d 1265 (Pa. Super. 2000); Juban v. Schermer, 751 A.2d 1190 (Pa. Super. 2000).

We cannot discern at this stage of the proceedings if the contract claim is completely redundant to the tort claim. Based upon the averments in the complaint, there are allegations of wrongdoing that may be exclusively contract matters and other allegations that may be exclusively tort matters. Discovery will refine the many allegations stated by the plaintiffs against the defendant. If the court is again presented with this issue prior to trial, the court will be in a better position to determine whether the contract theory of liability or the tort theory or both are submitted to the jury. Discovery will enable us to then determine what we cannot determine now, that is, whether one claim is completely redundant to the other claim.

It is true that the long list of claimed misconduct stated by the plaintiffs in Count I is identical to the long list of claimed misconduct in Count II. We will address below the sufficiency of these many allegations. However, that the two lists are identical does not alter the right of the plaintiffs to proceed, at the present time, under both theories.

There are excellent discussions providing guidance in deciding if acts should be classified as contract issues or whether they should be seen as tort issues in Redevelopment Authority of Cambria County v. International Insurance Co., 454 Pa. Super. 374, 391-92, 685 A.2d 581, 589-90 (1996), alloc. denied, 548 Pa. 649, 695 A.2d 787 (1997) and Bash v. Bell Telephone Co., 411 Pa. Super. 347, 355-57, 601 A.2d 825, 829-30 (1992). In both opinions, the Superior Court indicates that a tort claim can preclude a contract claim when the defendant’s alleged wrongful act is the “gist of the action” with the contract’s being collateral. Further, the Superior Court explained that the important difference between contract and tort actions is that a contract action arises from “the breach of duties imposed by mutual consensus” while the tort action comes into being from “the breach of duties imposed as a matter of social policy.” For now, the plaintiffs may proceed under both theories of liability because it is premature to classify the gist of this suit.

The defendant, Whitehall Manor, next states a motion to strike for lack of specificity. It wants the contract claim (Count I) stricken on the basis that the complaint supposedly does not allege essential facts for each element of a contract cause of action.

Under Pennsylvania law, a plaintiff who wishes to prevail on a breach of contract claim must demonstrate that there was an agreement which the defendant breached which resulted in damages to the plaintiff. Matthews v. Unisource Worldwide Inc., 748 A.2d 219 (Pa. Super. 2000), alloc. denied, 568 Pa. 653, 795 A.2d 977 (2000).

Our review of Count I of the complaint reveals that the plaintiff has sufficiently pled the existence of an agreement or contract between the parties, that the defendant breached it and that damages were suffered by plaintiffs’ decedent. Accordingly, there is no merit to this preliminary objection and it is overruled.

There are several preliminary objections alleging lack of specificity of many allegations of the complaint. Pa.R.C.P. 1019(a) requires “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” This rule requires specificity in pleading.

We now list the allegations of the complaint which are deficient by not being sufficiently specific. We strike these allegations from the complaint but provide the plaintiffs leave to amend the complaint within 30 days of the date of our order.

The offending paragraphs of the complaint which are stricken are: 28; 30(a), (b), (g), (i), (j), (k), (1), (m), (n), (p), (r), (s), (t), (u), (v), (w), (y), (aa), (ab); 17; 24; 35(b), (i), (k), (m), (o), (p), (q), (t), (ad), (ae), (af), (ag), (ai), (am), (aq), (ar); and Count III. Each of these portions of the complaint is vague, does not advise the defendant of the exact nature of its offending conduct, and does not advise defendant what it should have done.

The next preliminary objection is a demurrer by the defendant to Count IV of the complaint which purports to set forth a cause of action for “breach of express and implied warranties.” Defendant has sought alternative relief if the demurrer is denied, namely, a motion to strike for lack of specificity.

Count IV states as the basis for the cause of action the failure of the defendant to provide the services promised in written advertising and promotional materials. This appears to be a reason for the breach of express warranty claim. Plaintiffs add that the warranty claims are based upon the fact that Whitehall Manor is a personal care home subject to administrative regulations at title 55, sections 2620.1-2620.83 of the Pennsylvania Code.

The breach of warranty claims in Count TV are vague at best. We cannot tell from the complaint how what is alleged in Count IV gives rise to a cause of action for a breach of express or implied warranties. Apparently, these claims relate to Whitehall Manor’s existence as a personal care home. However, the complaint does not identify Whitehall Manor as a personal care facility, and it is unclear how that classification of the facility gives rise to breach of warranty claims in the context of what happened to Mrs. Lebish.

We deny the demurrer to Count IV. We grant the preliminary objection to strike Count IV for lack of specificity. The plaintiffs are provided the opportunity to redraft this portion of their complaint in an effort to set forth a clearly stated viable cause of action for breach of warranty. This aspect of the complaint requires substantial reworking.

Defendant’s next preliminary objection is in the nature of a demurrer or, in the alternative, to strike allegations of corporate negligence because they are not specific. Defendant argues that Count II, the negligence count, does not provide sufficiently specific allegations for a corporate negligence claim under Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991).

It did not appear from our reading of the complaint that the plaintiffs were attempting to state a claim for corporate negligence against the defendant under Thompson principles. However, in their brief, we see that plaintiffs are attempting to extend Thompson and make its principles apply to personal care facilities.

Thompson has been extended in Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998) to health maintenance organizations. However, our research does not reveal any case wherein personal care facilities were held liable for breach of the Thompson duties.

If plaintiffs plan to use this case to extend Thompson to personal care facilities, their complaint is deficient as the starting point to do that. As we pointed out earlier, the complaint does not adequately identify the nature of the entity that is Whitehall Manor. Further, the allegations of Count II are insufficient in setting forth the specific acts of negligence. In a previous part of this opinion, we identified the portions of the complaint which do not meet pleading requirements for any negligence claim. If plaintiffs plan to advance their apparently novel theory, further specificity must be provided in accord with Thompson. (This is not to be construed as a statement of the viability of a corporate negligence claim against a personal care facility for breach of Thompson duties. In fact, any attempt by the plaintiffs to proceed against the defendant on such a theory appears legally implausible to us. Final determination must be left to another date after we have a properly drafted amended complaint.)

The next preliminary objection is to Count V which is a claim for fraudulent misrepresentation. The defense argues that the pleading is too general, so the plaintiffs have not complied with Pa.R.C.P. 1019(b). We agree. Thus, we strike Count V from the complaint but provide the opportunity to the plaintiffs to draft an amended complaint which satisfies Pa.R.C.P. 1019(b).

Paragraph 47 of the complaint, purporting to set forth the alleged misrepresentations, is impermissibly general. Plaintiffs need to identify what misrepresentations were made, by whom they were made, how they were made, and when they were made. Plaintiffs must set forth why they are alleging that the statements were false. Plaintiffs must plead how they and their decedent relied upon the misrepresentations and how the claims of injury relate to reliance upon the misrepresentations.

The next preliminary objections pertain to Count III which is styled “Unfair Trade Practices and Consumer Protection Law.” The first of these preliminary objections is a demurrer based on the argument that an action under the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §§201-1 through 201-9.2, does not lie against physicians or personal care homes who, according to the defendant, are not guarantors of their work as physicians are not guarantors of their work. The second of these preliminary objections is to strike this count from the complaint because the allegations lack specificity. We grant the second of the preliminary objections, strike this count from the complaint, but we provide the plaintiffs the opportunity to amend the count to see if a claim under this statute can be adequately crafted and properly stated.

In its demurrer, the defendant relies upon Foflygen v. Zemel, 420 Pa. Super. 18, 36, 615 A.2d 1345, 1354 (1992), alloc. denied, 535 Pa. 619, 629 A.2d 1380 (1993) for the proposition that a claim under UTPCPL cannot be brought against a physician or other similar providers of health care services. Foflygen only addresses the inapplicability of the UTPCPL to physicians providing treatment. We cannot determine whether UTPCPL is inapplicable to the defendant, Whitehall Manor, until the complaint is amended to set forth the plaintiffs’ contention as to the nature of Whitehall Manor. This is Count ffl’s first deficiency.

The defendant is accurate that Count HI contains vague averments to which an appropriate response cannot be made. The UTPCPL is designed to thwart misrepresentations and other fraudulent conduct that create a likelihood of confusion or misunderstanding. 73 P.S. §201-2 (4). See Foflygen, supra, 420 Pa. Super. at 36, 615 A.2d at 1354 and Dibble v. Penn State Geisinger Clinic Inc., 42 D.&C.4th 225 (1999). Of course, averments of fraud must be set forth with particularity. Pa.R.C.P. 1019(b). The allegations of improper conduct by plaintiffs specified in paragraphs 38 (in its entirety), 39 and 40 do not meet the required standard. Missing from the complaint under this count is information similar to what is missing under Count V which alleges fraudulent misrepresentation. What are the services and the characteristics of them that were represented by the defendant? How and by whom were these representations made? What is meant by the “particular standard, quality or grade” of defendant’s services? How did the defendant fail to meet the standards? What was advertised? In what fashion did the defendant fraudulently fail to comply with the terms of written contracts? Was there more than one contract? Plaintiffs also need to specify in what way the plaintiffs were dissatisfied with defendant’s services and in what fashion did defendant fail to adequately respond and take corrective measures to the expressed dissatisfaction. What damages were suffered as a result of improper conduct by the defendant? Once again, our addressing the deficiencies with what is set forth in Count III is not an indication that the plaintiffs can set forth a viable claim under the UTPCPL. We need a properly drafted amended complaint to decide the viability of the claim.

The final preliminary objection is to strike paragraph 20 of the complaint “for failure to conform to law.” Defendant complains that paragraph 20 contains more than one material allegation and so it violates Pa.R.C.P. 1022. If there is a pleading violation in paragraph 20, it is de minimis. Accordingly, we overrule and dismiss this preliminary objection.

ORDER

Now, June 12, 2002, after consideration of the defendant’s preliminary objections and the briefs of the attorneys (the matter was submitted on brief by agreement of the parties), it is hereby ordered that the preliminary objections are sustained in part and overruled in part as explained in the accompanying memorandum opinion. The complaint is stricken with leave to file an amended complaint within 30 days which amended complaint must be consistent with the memorandum opinion.


author: KUHN, P.J.,

text:
    Swords v. Bucher

      May 29, 2002
    C.P. of Adams County,
    no. 00-S-516.

      Dale E. Anstine, for plaintiff.

      George R. Zacharkow, for defendant.
   KUHN, P.J.,

Before the court is defendant’s motion for summary judgment. For the reasons set forth herein, said motion is granted.

The case involves a dispute with regard to defendant’s alleged responsibility for injuries plaintiff sustained during a tubing accident. The factual background has been gathered from the pleadings, depositions and exhibits.

FACTUAL BACKGROUND

On My 4, 1998, plaintiff and two friends attended a cookout party at Lake Meade, Adams County, Pennsylvania. Defendant and his family also reside at Lake Meade and are neighbors of the family that hosted the cookout. On the afternoon of My 4, 1998, one of the hosts of the cookout was giving tube rides to his children and some of his guests. Defendant had also taken his sons tubing on the lake that afternoon and volunteered to give tube rides to some of his neighbor’s guests.

About 20 minutes after plaintiff and his friends arrived at the cookout, they went to the lake to go tubing. Defendant was returning to the dock at approximately the same time with his wife and sons who got off the boat and went to the cookout. Defendant stayed on the boat and offered tube rides to some of the guests who were waiting on the dock. Plaintiff, who had not met defendant before this time, boarded the boat along with a few other guests. Defendant had a two-person tube which was connected by a 75-foot line to the rear center of the boat. At some point, plaintiff and another guest, Ron Enzer, got on the tube together. Plaintiff was lying on his stomach on the left side of the tube and Enzer was on the right side. One of plaintiff’s friends was acting as the spotter. Defendant pulled plaintiff and Enzer in a counterclockwise direction around the lake. When defendant got to the far end of the lake, he turned the boat to the left in order to begin the trip back toward the dock. When the boat turned to the left, the tube swung to the right. As they turned the comer, Enzer lifted up his side of the tube, such that he was leaning toward plaintiff, allegedly to keep the tube from catching in the water. Nevertheless, Enzer’s edge of the tube caught the water, and the tube flipped. At that time, plaintiff’s head allegedly struck Enzer’s shoulder. Plaintiff states that after falling off the tube, his eyes and head hurt. He also states that he was “dazed and confused,” that everything was “hazy and fuzzed away,” and that he was “slow comprehending things.”

Plaintiff maintains that he was helped into the boat immediately after falling off the tube, and that he was taken back to the dock where he sat alone for some time. Plaintiff states that, after the tubing accident, he suffered from a headache, blurred-vision and dizziness for the remainder of the day but that he did not seek medical attention until July 13, 1998. A CT scan and an MRI were both negative.

Plaintiff maintains that he has suffered from aches and pains in his neck and lower back, tingling in his fingers, headaches at night, and problems with balance following the tubing accident. He alleges that he has incurred medical expenses and suffered reduced income as a result of the accident.

Plaintiff maintains that defendant was operating the boat in a reckless and negligent manner at the time the tube flipped on July 4,1998. Plaintiff alleges that defendant was traveling at a high rate of speed and cutting across the wakes from other boats. Plaintiff further alleges that defendant was under the influence of alcohol to a degree which rendered him incapable of safely operating his boat.

PROCEDURAL BACKGROUND

Plaintiff filed a complaint against defendant alleging that defendant was negligent and reckless in the operation of his boat, and that, as a result, plaintiff sustained injuries and damages. More specifically, plaintiff alleges that defendant’s negligence consisted of the following:

(a) Failing to exercise reasonable care in the operation of his boat;

(b) Operating his motorboat in careless disregard for the safety of the plaintiff;

(c) Operating his motorboat at an excessive rate of speed;

(d) Operating his motorboat while under the influence of alcoholic beverages to a degree which rendered him incapable of safely operating the boat;

(e) Operating his motorboat when the defendant knew, or should have known, that he was unfit to do so;

(f) Failing to exercise reasonable care in the operation of his motorboat by cutting across the wakes of other watercraft; and

'(g) Violating 30 Pa.C.S. §5501(a), §5501(b) and §5502(a)(l).

Defendant’s motion for summary judgment contends that plaintiff’s claim is barred by the doctrine of assumption of risk, as set forth in the Restatement (Second) of Torts §496A. Defendant maintains that plaintiff assumed the risk of a sporting activity in which he voluntarily took part. Furthermore, defendant alleges there is no evidence in the record to support a conclusion that the alleged conduct was outside the boundaries of the sport. Defendant also argues that plaintiff’s allegations concerning the consumption of beer are not admissible in evidence and do not undermine plaintiff’s assumption of risk because mere consumption of alcohol is inadmissible unless it reasonably establishes intoxication.

DISCUSSION

Summary judgment is granted:

“[Wjhen the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact. The moving party has the burden of proving the nonexistence of any genuine issue of fact. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. The trial court must resolve all doubts against the moving party and examine the record in the light most favorable to the non-moving party. Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law.” Davis v. Resources for Human Development Inc., 770 A.2d 353, 356-57 (Pa. Super. 2001).

Furthermore, “unsupported assertions of conclusory allegations cannot create genuine issues of material fact.” Superka v. Valley Forge Life Insurance Co., 44 D.&C.4th 92, 94-95 (1999), citing McCain v. Pennbank, 379 Pa. Super. 313, 318-19, 549 A.2d 1311, 1313-14 (1988). Pennsylvania Rule of Civil Procedure 1035.4 states that supporting and opposing affidavits must set forth “such facts as would be admissible in evidence.” The rule further states that the court may permit affidavits to be supplemented or opposed by depositions. Therefore, in ruling on defendant’s motion for summary judgment, this court can consider the deposition testimony of plaintiff and defendant only to the extent that such testimony sets forth matters which would be admissible into evidence. See Todd Heller Inc. v. United Parcel Service Inc., 754 A.2d 689, 698 (Pa. Super. 2000), citing McFadden v. American Oil Company, 215 Pa. Super. 44, 50, 257 A.2d 283, 287 (1969).

First, the court will address whether evidence of intoxication is sufficient enough to be considered in determining whether plaintiff’s cause of action is barred by the defense of assumption of the risk. The Pennsylvania Superior Court has stated, “when recklessness or carelessness is at issue, proof of intoxication is relevant, but the mere fact of consuming alcohol is not admissible, being unfairly prejudicial, unless it reasonably establishes intoxication.” Cusatis v. Reichert, 267 Pa. Super. 247, 249-50, 406 A.2d 787 (1979).

Pennsylvania courts have indicated that something more than a “suggestion of intoxication” is necessary in order for evidence to be admissible. For example, in Burke v. Buck Hotel Inc., 742 A.2d 239 (Pa. Commw. 1999), a party was involved in a traffic accident, and was alleged to have been driving while intoxicated. A police officer testified that the driver had a strong odor of alcohol about her breath and person following the accident. He also stated that she had “watery, glassy” eyes, that she needed support while she stood, and that she had a “slight wobble to her gait.” Id. at 242. Furthermore, the driver admitted that she had been drinking prior to the accident. Id. at 243. The court held that this evidence was admissible because it reasonably established the driver’s intoxication. The court based its decision in part on the Superior Court’s holding in Ackerman v. Delcomico, 336 Pa. Super. 569, 486 A.2d 410 (1984). In that case, there was corroborated testimony that a party had been drinking heavily in the late afternoon and evening before an accident. Ackerman v. Delcomico, supra at 575, 486 A.2d at 413. Furthermore, there was corroborated testimony that the party had a “strong odor of alcohol and slurred speech” after the accident. Id. The court stated that the evidence established “much more than a suggestion of intoxication.” Id. The court therefore concluded that the evidence of the party’s intoxication was properly admitted, and was not prejudicial. Id.

As noted above, plaintiff alleges that on July 4,1998, defendant was “under the influence of alcoholic beverages to a degree which rendered him incapable of safely operating the boat.” Plaintiff further alleges that defendant was negligent in operating his boat “when the defendant knew, or should have known, that he was unfit to do so.” Plaintiff provides little support for these allegations.

Plaintiff stated in his deposition testimony that defendant had consumed alcoholic beverages throughout the day up until the time of plaintiff’s accident. Plaintiff specified that he saw defendant drinking beer while he was operating the boat; however, plaintiff does not know whether defendant drank more than one beer during that time. Defendant admitted that he drank four or five beers during the course of the afternoon of July 4, but plaintiff has provided no evidence to suggest that defendant consumed those four or five beers prior to plaintiff’s tube ride that afternoon. In fact, plaintiff does not contradict defendant’s testimony that he was at work during the morning of July 4 prior to going out on the lake. Furthermore, there is no evidence that defendant was slurring his words or having trouble functioning before or while he was operating the boat. In his deposition testimony, plaintiff admitted that he never observed defendant behaving in such a manner. Plaintiff further admitted that he had no contact with defendant prior to boarding defendant’s boat that afternoon.

Plaintiff states that he believes defendant was under the influence of alcohol at the time the tube flipped because defendant was “too intense of a driver,” and because he was “too rammy,” and “too egoish.” Plaintiff alleges that such behavior is evidence of defendant’s intoxication at the time the tube flipped; however, plaintiff provides no further support for this allegation. Plaintiff did not present any evidence, other than plaintiff’s own deposition testimony, which would suggest that defendant was actually operating the boat at an excessive speed when the tube flipped. Plaintiff states that he believes the boat was traveling at approximately 35 miles per hour at the time the tube flipped. When asked how he came to that conclusion, plaintiff answered, “[t]hrough the years of everything I have done before, knowing at that specific time we were going faster than we should have been.” Plaintiff was also asked what speed he believed the boat should have been traveling. Plaintiff answered, “slower than that to get whipped into a comer at 180 degrees.” There was no speedometer or tachometer on the tube. Defendant maintains that the boat could not have been traveling at a speed of 35 miles per hour because the engine is 135 horsepower and it could not achieve a speed of 35 miles per hour with two grown adults on the tube and others in the boat at the time.

Plaintiff has not produced sufficient evidence to “reasonably establish” that defendant was intoxicated while operating his boat on July 4. Therefore, the court finds plaintiff’s allegations concerning defendant’s consumption of alcohol not admissible in evidence because they would be unfairly prejudicial. Consequently, this court cannot consider those allegations in mling on defendant’s motion for summary judgment. This determination does not speak to the merits of plaintiff’s allegations.

Defendant also argues that plaintiff’s claim is barred by the doctrine of assumption of risk. Defendant alleges that plaintiff assumed the risk of a sporting activity in which he voluntarily took part, and that plaintiff cannot shift responsibility for the consequences of his choice. The doctrine of assumption of risk is set forth in the Restatement (Second) of Torts §496. Section 496A states, “a plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” Comment c.2 to section 496A further states that one meaning of the term “assumption of risk” is “that plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff.”

With regard to this implied assumption of risk, section 496C provides, “a plaintiff who fully understands a risk of harm to himself or his things caused by the defendant’s conduct or by the condition of the defendant’s land or chattels, and who nevertheless voluntarily chooses to enter or remain, or to permit his things to enter or remain within the area of that risk, under circumstances that manifest his willingness to accept it, is not entitled to recover for harm within that risk.”

The Supreme Court of Pennsylvania has held that comment c.2 refers to a situation in which a plaintiff has “voluntarily and intelligently undertaken an activity which he knows to be hazardous in ways which subsequently cause him injury.” Howell v. Clyde, 533 Pa. 151, 161, 620 A.2d 1107, 1112 (1993). The court further held that the basis for this type of assumption of risk is that, “as a matter of public policy one who chooses to take risks will not then be heard later to complain that he was injured by the risks he chose to take and will not be permitted to seek money damages from those who might otherwise have been liable ... the plaintiff may or may not have been negligent in encountering the risk. He is barred from recovery not because of his negligence, but because of the policy that a person may not recover for injuries which he himself has chosen to risk.” Id. at 161-62, 620 A.2d at 1112.

The court may determine that the defendant was relieved of his responsibility to the plaintiff only if “reasonable minds could not disagree that the plaintiff deliberately and with the awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury.” Id. at 162, 620 A.2d at 1113.

Plaintiff notes that the doctrine of assumption of risk has been questioned by Pennsylvania courts and has only narrowly avoided abolishment. While this is an accurate assessment of the doctrine’s history, as recently as March 2000, the Pennsylvania Superior Court has stated, “until our Supreme Court or our legislature abrogates assumption of risk in negligence cases, the doctrine remains viable in Pennsylvania.” Staub v. Toy Factory Inc., 749 A.2d 522, 528 (Pa. Super. 2000). Our Supreme Court’s ruling in Howell v. Clyde marked a turning point with regard to the assumption of risk doctrine. The Howell decision essentially abolished assumption of risk as an affirmative defense. Howell v. Clyde, 533 Pa. at 163, 620 A.2d at 1113. The court stated in Howell, “to the extent that an assumption of risk analysis is appropriate in any given case, it shall be applied by the court as a part of the duty analysis, and not as part of the case to be determined by the jury.” Howell v. Clyde, 533 Pa. at 162, 620 A.2d at 1112-13. Therefore, in a negligence action, assumption of risk is a question of law that is incorporated into the court’s analysis of whether or not the defendant owed a duty to the plaintiff. See Staub v. Toy Factory, supra, 749 A.2d at 526.

Unlike Howell in which the court addressed a motion for compulsory nonsuit, the case before this court involves defendant’s motion for summary judgment. The Superior Court has provided some guidance with regard to assumption of risk in these two types of pleadings. In Staub v. Toy Factory Inc., 749 A.2d at 527 n.8, the court stated: “[fjor summary judgment purposes, affirmative defenses are generally decided under Pa.R.C.P. 1035.2(1), where it is the moving party’s burden to establish the defense as a matter of law. Under Howell and Hardy, however, assumption of risk is now considered part of a ‘no-duty’ analysis. As such, the doctrine now falls under the second type of summary judgment motion, described in Pa.R.C.P. 1035.2(2). Under Rule 1035.2(2), a party may obtain summary judgment by pointing to the adverse party’s lack of evidence on an essential element of the claim. . . . One of the essential elements of a negligence claim is that the defendant owes the plaintiff a duty of care. Under Rule 1035.2(2), the defendant’s method for pointing to a lack of evidence on the duty issue is to show that the plaintiff assumed the risk as a matter of law. This process will entail gathering and presenting evidence on the plaintiff’s behavior, and attempting to convince the court that the plaintiff knew the risk and proceeded to encounter it in a manner showing a willingness to accept the risk. Thus, for all practical purposes, the process for showing ‘no-duty’ assumption of the risk under Rule 1035.2(2) is indistinguishable from showing assumption of the risk as an affirmative defense under Rule 1035.2(1).” (emphasis in original)

Pennsylvania courts have not addressed the doctrine of assumption of risk in the context of a tubing accident specifically; however, assumption of risk has been applied in situations involving injuries sustained during other sporting events. Our Supreme Court has stated, “[wjhatever complexities and difficulties have attended the assumption of the risk doctrine in other areas, cases involving injuries to plaintiffs who were spectators or participants at sporting events or amusement facilities have tended to speak in terms of whether the injury suffered resulted from a risk ‘inherent’ in the activity in question; if it did, then the defendant was under no duty to the plaintiff, and the suit could not go forward.” Hughes v. Seven Springs Farm Inc., t/d/b/a Seven Springs Mountain Resort, 563 Pa. 501, 762 A.2d 339, 343 (2000).

In Pagesh v. Ucman, 403 Pa. Super. 549, 589 A.2d 747 (1991), a water-skier brought a personal injury action against the operator of a boat after the skier injured his leg. Plaintiff alleged that his injury occurred as a result of defendant’s operating the boat in circles in order to make waves for the skier to be pulled through. Defendant raised the defense of assumption of risk. Plaintiff argued that he could not have assumed the risk of an activity that he did not know was going to occur (that the defendant would operate the boat in circles in order to make waves). The court held that the plaintiff’s injury resulted from an ordinary risk associated with water-skiing. The court also held that the plaintiff was an experienced water-skier who knew the dangers inherent in the activity. The court determined that the plaintiff voluntarily chose to ski and willingly accepted the risk. Specifically, the court stated that the plaintiff could have avoided any aspect of the alleged danger by signaling the defendant to slow down, stop or change course. The court suggested that the plaintiff also could have dropped the rope being used to pull him. Instead, plaintiff failed to use the means available to avoid any danger, and therefore assumed the risk of injury. Id. The court also upheld the trial court’s comparison of the plaintiff’s injury to those sustained during participation in other sports.

Water-skiing is much like tubing in that the skier volunteers to be pulled behind a boat while holding a rope which is attached to the back of the boat. As the Superior Court noted, it is not uncommon for the operator of the boat to drive in circles in order to make waves which the skier is pulled through. The same can be said of tubing. The waves present a challenge for the skier, making it more difficult for him to maintain his balance. In the case of a tuber, the waves add to the thrill sought by the participant. The court held that the risk of injury to the skier while being pulled through the waves is an ordinary risk associated with water-skiing. Pagesh v. Ucman, 403 Pa. Super. at 556, 589 A.2d at 750. California courts have heard cases involving tubing injuries, and have described tubing as “a variation of water-skiing designed to accommodate those eager to experience the force of whipping around wakes but lacking the ability to water-ski.” Record v. Reason, 73 Cal. App. 4th 472, 482, 86 Cal. Rptr. 2d 547, 554 (1999). This appears to be a fair assessment of the sport of tubing especially in light of Pagesh v. Ucman.

The plaintiff in Pagesh raised many of the same arguments that plaintiff makes in this case. For example, both plaintiffs allege that they could not have assumed the risk of a portion of the activity they did not know was going to occur. In this case, plaintiff argues that he could not have known that defendant would be intoxicated and would operate the boat at an excessive speed; however, plaintiff has not provided sufficient evidence to support either of these allegations. Therefore, we must simply assess the risk of falling off a tube as the boat turns a comer, and plaintiff’s conduct in view of that risk.

Plaintiff was an experienced tuber. He described himself in his deposition testimony as “water oriented.” He stated that he has had 18 years of sailing experience. He further stated that he has been on many power boats, and has operated power boats that belonged to his friends. Plaintiff also stated that he has operated jet skis in the past and that he has been water-skiing approximately a dozen times since 1993. Plaintiff indicated that he also began tubing in approximately 1993. Plaintiff acknowledged that he was aware of the standard hand signals used in tubing, although he did not use them on the day the incident occurred. Plaintiff further acknowledged that he has been tubing approximately 12 times, and that he has probably fallen off the tube on each of those occasions. He agreed that falling off the tube is part of the tubing experience and stated that one is aware of the possibility of falling off during any tube ride. Plaintiff also stated that he has fallen off both single and double tubes, and that he recognizes the possibility of body to body contact between the two riders when riding or falling off a double tube.

Plaintiff’s deposition also demonstrated that he was familiar with tubing terminology. For example, he used the term “whipped,” and testified that it refers to the movement of the tube behind the boat as the boat turns a comer. Plaintiff stated that the tube typically whips to the side at twice the speed of the boat and then realigns directly behind the boat after the boat has completed the turn. Plaintiff explained that the tube whips to the right if the boat turns to the left. Therefore, it appears that the risk of falling off the tube and being injured when the boat makes a turn is an ordinary risk associated with tubing and one known by plaintiff. If plaintiff had provided adequate proof that defendant was operating the boat at an excessive speed, the question would then have become whether or not such conduct on the part of the defendant increased the risks above those inherent in the sport.

As defendant argues, plaintiff has provided no evidence to demonstrate that defendant’s alleged conduct was outside the normal boundaries of the sport. Plaintiff alleges that defendant was intoxicated while operating the boat. For the reasons set forth above, this court will not address those allegations. Plaintiff also alleges that defendant was operating the boat at an excessive rate of speed. Again, as noted above, plaintiff has not provided sufficient evidence to support this allegation. Plaintiff cannot avoid summary judgment by alleging that he “believed” the speed of the boat was too fast or that the angle of the turn was too sharp. However, even if plaintiff had provided sufficient evidence to support those allegations, such conduct would not necessarily increase the risks above those inherent in the sport.

California courts have held that minor accelerations by the driver of the boat cannot form the basis for liability to the tube rider. Bjork v. Mason, 77 Cal. App. 4th 544, 552 (2000). That court reasoned that imposition of legal liability on the driver of a boat for ordinary negligence in making too sharp a turn or in pulling a skier too rapidly would have “an undesirable chilling effect on the driver’s conduct” and might have a “generally deleterious effect on the nature of the sport of water-skiing as a whole.” Ford v. Gouin, 3 Cal. 4th 339, 345 (1992). The same reasoning is applicable to tubing.

As the Superior Court suggested in Pagesh, if plaintiff felt that he was in danger, he could have signaled defendant to slow down, stop or change course. Plaintiff testified that he was aware of the hand signals commonly used in tubing. Plaintiff suggests that he could not let go of the tube in order to give a hand signal because the boat was traveling at an excessive rate of speed. For the reasons set forth above, plaintiff has not provided sufficient evidence to support the allegation that defendant was operating the boat at excessive speeds. This court therefore finds that plaintiff failed to use the means available to avoid the risk of falling off the tube. Furthermore, the risk of falling off the tube while being “whipped” into a comer is a risk inherent in the sport. Plaintiff was aware of this risk but nevertheless he voluntarily chose to go tubing. He therefore willingly accepted the risk and cannot recover for the injuries he sustained as a result of that decision.

Accordingly, the attached order is entered.

ORDER

And now May 29, 2002, in consideration of defendant’s motion for summary judgment and in accordance with the attached opinion, said motion is granted.

This case is dismissed. Costs to be paid by plaintiff.

      . “[TJubing [is] an activity whereby an individual rides on an inner tube while being pulled by a boat.” Sebasta v. Holtsberry, 2000 Ohio App. Lexis 4017.

      . Depositions were taken of plaintiff and defendant.

      . There is conflicting testimony with regard to whether defendant gave other guests a ride on the tube before giving plaintiff and Enzer the ride during which the incident in question occurred. There is also conflicting testimony regarding whether or not plaintiff served as a “spotter” (someone other than the operator of the boat who observes the activity of the tubers) for other tubers prior to his tube ride.

      . When a turn is executed, the tube continues on in the opposite direction, until the turn is completed and it realigns itself behind the boat. This action is termed the “whip.”

      . Plaintiff alleges that defendant admitted in his deposition testimony that he consumed four or five beers prior to operating the boat. The transcript of the deposition testimony does not appear to be consistent with plaintiff’s allegation. Defendant does admit that he consumed four or five beers; however, he does not indicate when he consumed those beers. (Transcript of defendant’s deposition taken December 19, 2000 — p. 21.)

      . The Pennsylvania Superior Court has stated that the Howell opinion seems to “espouse the approach most narrow in scope that can gain at least a concurrence of the majority of the court.” Hardy v. Southland Corp., 435 Pa. Super. 237, 245, 645 A.2d 839, 842 (1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (1994).

      . In footnote 10 of the opinion, the court noted that assumption of risk remains a viable affirmative defense in cases involving express assumption of risk, or cases brought pursuant to 402A (strict liability theory), or cases in which assumption of risk is specifically preserved by statute.


author: QUIÑONES ALEJANDRO, J.,

text:
    Deutschbauer v. Barakat

      March 13, 2002

      Albert L. Deutsch, for plaintiff.

      Jonathan D. Herbst, for defendant.
   QUIÑONES ALEJANDRO, J.,

INTRODUCTION

This may be a case of first impression on the issue of the appropriateness of venue in a legal malpractice action. Paul Deutschbauer (plaintiff) argues on appeal that the preliminary objections filed by attorneys Fred Barakat and Denise R. Bradley (defendants) from Chester County, which challenged the appropriateness of venue in Philadelphia County and requested the transfer of this matter to Berks County, were erroneously sustained. This motion judge disagrees.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Briefly, the factual history, as defined by the pleadings, exhibits, and memoranda submitted in support of the preliminary objections and response, is as follows:

Plaintiff is an adult who resides at 278 Ridgeway Plaza, Philadelphia County, Pennsylvania.

On May 11, 2001, plaintiff commenced a legal malpractice action in Philadelphia County against Fred Barakat, Esquire, and Denise Bradley, Esquire. At all times relevant hereto, defendants were attorneys licensed in the Commonwealth of Pennsylvania with an office at the Chadds Ford Professional Center, 100 Dickerson Drive, Building 100, Suite 101, Chadds Ford, Chester County, Pennsylvania.

From the complaint, it appears that the basis of the legal malpractice action is as follows:

On July 3, 1994, plaintiff was involved in a motor vehicle accident in Crawford County allegedly caused by an individual name Brian Flamed. Thereafter, plaintiff retained defendants to represent him in this personal injury action. On July 1,1996, defendants filed a writ of summons on behalf of plaintiff and against Mr. Flamed in Berks County. The Honorable Albert A. Stallone was the assigned judge.

A review of the Berks County Civil Docket summary report reveals that the court on May 4, 1998, issued a termination notice, with proof of publication filed thereto on June 12, 1998. On November 27, 1998, Attorney Barakat filed a petition to open termination of case pursuant to the provisions of Rule 1901. On December 1, 1998, the court issued a rule hearing regarding said petition. On October 25, 2000, the court issued another termination notice and the matter was ultimately terminated on December 26,2000, in accordance with Berks County Local Rule of Civil Procedure 1901.

Plaintiff further contends that his case against Mr. Hamed was terminated due to defendants’ failure to communicate with him and/or return his telephone calls, and their failure to follow the advice of Albert L. Deutsch, Esquire, an attorney plaintiff consulted.

Plaintiff claims that Attorney Deutsch contacted defendants in 1999, and discussed with defendants how to proceed with the personal injury case and obtain substituted service against Mr. Hamed. Allegedly, Attorney Deutsch spoke with Judge Stallone’s law clerk and later shared with defendants the following information:

(a) that the petition for service by publication was dismissed without prejudice since the petition to reinstate was still open;

(b) that if the petition to reinstate were granted, defendants could then refile their motion for service by publication;

(c) that the judge had ordered depositions to be completed in 60 days if there was a factual matter in controversy;

(d) that since there had been no answer to the petition to reinstate, the petition should then be granted and it was the duty of counsel (defendants) to bring this to the judge’s attention;

(e) that defendants should get their reinstatement order in place immediately for the judge to act on; and

(f) that defendants should take certain action in order to present a more cogent petition for service by publication.

Allegedly, Attorney Deutsch advised defendants that if defendants did not take measures to obtain substituted service, that Attorney Deutsch would have no other alternative but to bring a professional malpractice action against defendants. In sum, plaintiff argues that because of defendants’ inactions, plaintiff’s first-party benefits with State Farm Insurance Company were never enforced, that he lost valuable rights against Mr. Hamed, and was left without recourse to recover lost wages and medical expenses.

As to the venue issue in the present action, procedurally, on May 22,2001, deputized service of the instant complaint by a sheriff of Delaware County was attempted but neither defendants were found. On October 2,2001, plaintiff filed a petition for alternate service and by order dated October 4,2001, said petition was granted for service to be effectuated upon defendants by legal publication.

On November 9,2001, counsel entered an appearance on behalf of defendants.

On November 13, 2001, defendants filed preliminary objections to plaintiff’s complaint challenging venue. Plaintiff filed a response on November 20, 2001. These pleadings were assigned to this motion judge on December 17, 2001, and by order dated December 19, 2001, the preliminary objections were sustained and the matter was transferred to Berks County.

Dissatisfied with this ruling, plaintiff on January 10, 2002, filed a notice of appeal to the Commonwealth Court, according to the docket.

ISSUE

In response to an order issued in accordance with Pa.R.A.P. 1925(b), plaintiff on February 6, 2002, filed on record a statement of matters complained of on appeal and argued that this motion judge erred in transferring this matter to Berks County in that:

“(a) Plaintiff resides and is being treated for his physical ailments in Philadelphia County with defendants hiding their whereabouts and being served by substituted service; and

“(b) the underlying legal malpractice involves a motor vehicle accident that occurred in Crawford County with the underlying legal action being mistakenly brought in Berks County although Berks County had no connection to the underlying action in that the tort did not occur in Berks County and neither plaintiff nor defendant, in the original action, reside in Berks County.”

LAW AND DISCUSSION

Undisputedly, the proper way to challenge venue is by the filing of preliminary objections. Pa.R.C.P. 1006(e) and 1028(a)(1); Kubik v. Route 252 Inc., 762 A.2d 1119 (Pa. Super. 2000). Questions of venue must be raised at the first reasonable opportunity, otherwise, they are deemed waived. Id. A trial/motion judge has the discretion to sustain or overrule preliminary objections that challenge venue. Mathues v. Tim-Bar Corp., 438 Pa. Super. 231, 234, 652 A.2d 349, 351 (1994). A court’s ruling will depend on the facts of the particular case and will not be disturbed if the decision is reasonable in light of the facts. Sunderland v. R.A. Barlow Homebuilders, 2002 WL 93139 (Pa. Super.); Masel v. Glassman, 456 Pa. Super. 41, 45, 689 A.2d 314, 316 (1997). “If there exists any proper basis for the trial court’s decision to grant the petition to transfer venue, the decision must stand.” Estate of Werner ex rel. Werner v. Werner, 781 A.2d 188, 190 (Pa. Super. 2001); Masel, supra at 45, 689 A.2d at 316. It is understood that a plaintiff’s choice of forum is to be given great weight and it is the defendant who has the burden in asserting a challenge to the plaintiff’s choice of venue. Shears v. Rigley, 424 Pa. Super. 559, 564, 623 A.2d 821, 824 (1993).

If a preliminary objection to venue is sustained and there is a county of proper venue within the state, the action shall not be dismissed but shall be transferred to the appropriate court of that county. Pa.R.C.P. 1006(e). However, a decision to transfer will not be reversed unless there is a showing of an abuse of discretion. Johnson v. Henkels & McCoy Inc., 707 A.2d 237, 239 (Pa. Super. 1997). To show an abuse of discretion, an appellant must show that in reaching a conclusion, either a law was overridden or misapplied, or the judgment exercised was manifestly unreasonable, or the result of bias, prejudice, or ill will. Id.

The rales provide that an action against an individual may be brought: “in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.” Pa.R.C.P. 1006(a). (emphasis added)

Further: “An action to enforce a joint or joint and several liability against two or more defendants,... may be brought against all defendants in any county in which the venue may be laid against any one of the defendants under the general rules of subdivision (a).” Pa.R.C.P. 1006(c).

Here, plaintiff contends that the county in which the instant cause of action or transaction or occurrence out of which the cause of action arose is not Berks County but instead Philadelphia County because plaintiff resides in Philadelphia County and because Berks County, where the underlying action was brought by defendants, was an improper forum and has no relationship to this action. Relying on the case of Estate of Werner, supra, plaintiff argues that “the word ‘occurrence’ does not mean ‘part of a transaction,’ and that to hold otherwise would invite confusion and forum shopping where a lawsuit could proceed ‘in any county where any [facts] of a complex transaction occurred.’ ” While plaintiff is correct in this argument, he is incorrect in its application in this matter.

Plaintiff contends that the underlying tort action was mistakenly brought in Berks County. This motion judge will not address nor make a determination whether Berks County was a proper venue for the underlying tort action. Instead, the issue before this motion judge is whether Philadelphia County is a proper venue for the instant legal malpractice claim.

To establish a claim of legal malpractice, plaintiff, as an aggrieved client, must demonstrate three basic elements: (1) employment of the attorney or other basis for a duty; (2) the failure of the attorney to exercise skill and knowledge; and (3) that such negligence was the proximate cause of damage to the plaintiff. Kituskie v. Corbman, 552 Pa. 275, 280, 714 A.2d 1027, 1029 (1998).

As stated, defendants in this matter practiced law in Chester County. As counsel for plaintiff in the underlying action, defendants filed a personal injury action against Mr. Hamed in Berks County. Why Berks County, this motion judge does not know but can only surmise that venue was appropriate in Berks County. Consequently, any malpractice committed by defendants in the underlying case occurred, in this motion judge’s opinion, either in Chester County (their place of business) or Berks County (the place where the lawsuit was filed). In support of this opinion, this motion judge relies on the holding of Sunderland, supra, wherein this motion judge was the lower court judge and the appellate court addressed an issue of venue in a wrongful death and survival action. There, the court defined the meaning of the word “occurrences” giving rise to the cause of action as those events preceding and leading up to the fatal accident. By analogy, this motion judge opines that the basis for plaintiff’s legal malpractice action consists of those events that resulted in the underlying case being terminated by the court. Among the factors to consider are defendants’ alleged failure to adequately follow through on the action filed in Berks County as required by the local rules, and/or to communicate with their client. This failure more likely than not occurred in defendants’ office located in Chester County or in the courthouse in Berks County. There are no allegations that defendants did anything related to the underlying case in Philadelphia County.

As stated, Rule 1006 specifically limits the counties of venue in an action against an individual to a county where the cause of action arose or a transaction or occurrence took place or where the individual may be served. Thus, this motion judge looked to where defendants were served, albeit via substituted service, and/or where the underlying legal malpractice cause of action arose. In this motion judge’s opinion, neither of those possible counties includes Philadelphia County.

Plaintiff also contends that this motion judge failed to recognize the ties this case has with Philadelphia and argues that this motion judge should have considered plaintiff’s current medical treatment in Philadelphia County. In support of this position, plaintiff relies on Hoose v. Jefferson Home Health Care, 754 A.2d 1 (Pa. Super. 2000), appeal denied, 564 Pa. 722, 766 A.2d 1249 (2001), and inappropriately, on Cherrin v. Pogue, 775 EDA 2000, an unpublished memorandum opinion. In this motion judge’s opinion, plaintiff’s reliance on Hoose and Cherrin is misplaced since both cases dealt with the issue of transfer of venue based on the doctrine of forum non conveniens, and not on arguments of an improper venue, which is the issue here.

The rules of civil procedure provide criteria for transfers of venue depending on the basis for the request. Specifically, Pa.R.C.P. 1006(d)(1) allows for a transfer of venue based on the doctrine of forum non conveniens, when:

“For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.” Pa.R.C.P. 1006(d)(1). (emphasis added)

This motion judge is acutely aware of the distinction between preliminary objections challenging venue filed pursuant to Rule 1028(a)(1) and Rule 1006(a), and a petition to transfer venue based on forum non conveniens filed pursuant to Rule 1006(d)(1). Rule 1006(d) cannot apply to a case where venue is wrongly laid; this is distinctly regulated by Rule 1006(e). U.S. Cold Storage Corp. v. Philadelphia, 431 Pa. 411, 419, 246 A.2d 386, 390 (1968). Here, defendants are not seeking a change of venue based on forum non conveniens. This motion judge was not asked to consider such factors as: the relative ease of access to sources of proof; availability of compulsory process for the attendance of unwilling witnesses; cost of obtaining attendance of willing witnesses; the possibility of viewing the premises and enforceability of the order. Scribner v. Mack Trucks, 427 Pa. Super. 71, 628 A.2d 435 (1993), appeal denied, 537 Pa. 623, 641 A.2d 588 (1994). Rather, this motion judge was asked to decide whether venue is proper in Philadelphia County. Based on the evidence of record and the analysis provided, it is not.

CONCLUSION

Based on the foregoing, this motion judge is of the opinion that no error was committed in sustaining defendants’ preliminary objections and transferring the matter to Berks County. This motion judge respectfully requests that plaintiff’s appeal be dismissed and that the order of December 19, 2001, be affirmed.

      . This matter is captioned Deutschbauer v. Brian Harned, and was filed in Berks County Civil Court, docket no. 67-07010.

      . Rule 1901 provides for the termination of inactive cases: “(a) The prothonotary in any civil case which remains open on the docket of the prothonotary and in which no docket activity has been reflected for a period of 670 days prior thereto ... shall within 15 days thereafter serve notice upon each party’s counsel of record, or if a party is not represented by counsel of record, upon such party.... The filing of a motion to allow the case to remain open, with or without a request for a hearing, will not be considered docket activity for the purpose of this rule... (c) If no additional docket activity has taken place or if no motion to allow the case to remain active has been filed and a hearing date thereon requested within 60 days after the service of the notice ... the case shall be marked ‘terminated under B.R.J.A. 1901,’ without any further notice whatsoever.” B.R.J.A. 1901.

      . Albert L. Deutsch, Esquire, is the counsel for plaintiff in this matter.

      . Plaintiff’s civil action complaint, ¶¶18-22.

      . Estate of Werner, supra at 190-91.