author: GEORGE, J.,

text:
    McGlaughlin v. Gettysburg Hospital

      Darryl W. Cunningham, for plaintiffs.

      B. Craig Black and Robert McDermott, for defendants.
    October 6, 2003
   GEORGE, J.,

The plaintiffs in this matter, Michael S. McGlaughlin and Tammy J. Mc-Glaughlin, asked this court to reconsider the September 5, 2003 order in which summary judgment was granted in favor of defendants, Dr. Gregory J. Codori and Dr. John Dufendach. In the alternative, McGlaughlin has requested this court amend the September 5, 2003 order to include a statement pursuant to 42 Pa.C.S. §702(b) allowing McGlaughlin to appeal the interlocutory order. Although the factual history of this matter is set forth at length in the opinion accompanying the September 5, 2003 order, a brief review of the procedural history will assist in disposition of McGlaughlin’s requests.

On October 7,1999, McGlaughlin initiated a medical malpractice action against Gettysburg Hospital and a number of physicians, including Dr. Codori and Dr. Dufendach. Thereafter, the parties participated in discovery and trial preparation through December 3, 2002, at which time this court held a pretrial conference. Following the pretrial conference, and upon agreement of counsel, trial was scheduled for a term beginning September 8, 2003. In compliance with a scheduling order this court entered, the defendants filed a motion in limine to preclude the expert testimony of McGlaughlin’s two prospective medical experts, Dr. Thomas Howard and Dr. Peter G. Bemad. In their motion, defendants Dufendach and Codori successfully argued that these two prospective expert witnesses were incompetent to render expert opinions on the applicable standards of care pursuant to the requirements set forth in the Medical Care Availability and Reduction of Error Act (MCare) which was recently enacted on March 20, 2002. On September 5, 2003, this court entered an order granting defendants Codori and Dufendach’s motion to preclude the testimony of McGlaughlin’s prospective experts on the applicable standards of care. Additionally, since the preclusion of these experts left McGlaughlin with the inability to establish the elements of medical malpractice action against Dr. Codori and Dr. Dufendach, summary judgment was granted in their favor.

In the motion to reconsider, McGlaughlin does not challenge this court’s interpretation of MCare provisions or its applicability to the proffered expert testimony but rather, for the first time, argues that the legislature’s enactment of MCare is unconstitutional in light of Article V, Section 10, of the Pennsylvania Constitution. For the reasons set forth below, McGlaughlin’s constitutional challenge of MCare is denied.

In considering McGlaughlin’s constitutional challenge, I am mindful of appellate instruction that one who challenges the constitutionality of an act of the legislature must overcome “the strong presumption of constitutionality and the heavy burden of persuasion.” Commonwealth v. Mikulan, 504 Pa. 244, 247, 470 A.2d 1339, 1340 (1983). Accordingly, legislation must “clearly, palpably, and plainly” violate the Constitution before it will be declared unconstitutional. Snider v. Thornburgh, 496 Pa. 159, 166, 436 A.2d 593, 596 (1981) (emphasis in original) (quoting Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 16, 331 A.2d 198, 205 (1975)).

The gist of McGlaughlin’s argument is that MCare improperly encroaches upon the exclusive authority of the Pennsylvania Supreme Court to prescribe rules governing the “practice, procedure and conduct of all courts.” Pennsylvania Constitution Article V, Section 10; see also, Bergdoll v. Kane, 557 Pa. 72, 731 A.2d 1261 (1999). Although referencing the Pennsylvania Rules of Evidence throughout his brief, McGlaughlin argues that MCare improperly sets forth procedural rules which invade the Supreme Court’s exclusive rule-making authority. The flaw in this argument, however, is that Mc-Glaughlin mistakenly characterizes MCare as a procedural rule rather than a rule of evidence.

Determination of whether MCare is purely procedural, as compared to a rule of evidence, is critical. As previously mentioned, the Pennsylvania Supreme Court possesses exclusive authority over procedural rule-making. Bergdoll, cited above. On the other hand, Pennsylvania has a “long-standing practice of establishing rules of evidence ... by legislative action.” Coughlin v. Westinghouse Broadcasting and Cable Inc., 603 F. Supp. 377, 381 (E.D. Pa. 1985). Thus, while the legislature may not “tell the judiciary how to hear and dispose of a case,” Appeal of Borough of Churchill, 525 Pa. Super. 80, 88, 575 A.2d 550, 554 (1990), the legislature may enact rules of evidence. The Superior Court recently succinctly stated this principle in Commonwealth v. Presley, 455 Pa. Super. 13, 19-20, 686 A.2d 1321, 1324-25 (1996), wherein they opined:

“Nevertheless, ‘[i]t is well settled that the legislature of a state has the power to prescribe new rules of evidence, providing that they do not deprive any person of his constitutional rights.’ Dranzo v. Winterhalter, 395 Pa. Super. 578, 589, 577 A.2d 1349, 1354 (1990). ... This principle was settled nearly 60 years ago, when our Supreme Court stated that ‘[w]e recognize the right of the legislature to create or alter rules of evidence.’ Rich Hill Coal Company v. Bashore, 334 Pa. 449, 485, 7 A.2d 302, 319 (1939). More recently, the court reaffirmed this holding by stating that ‘[s]ubject only to constitutional limitations, the legislature is always free to change the rules governing the competency of witnesses and the admissibility of evidence.’ [Commonwealth v. Newman, 534 Pa. 424, 429, 633 A.2d 1069, 1071 (1993)].”

Appellate court efforts to define the meaning of procedural rules for the purpose of the exclusivity clause of the constitution have not altogether been successful perhaps because the line between procedural law and substantive law is often difficult to draw. “As threads are woven into cloth, so does procedural law interplay with substantive law.” Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 57, 436 A.2d 147, 150 (1981). It is important, therefore, to determine MCare’s purpose in order to properly characterize its nature. See id.

MCare is a comprehensive effort by the General Assembly to allow for fair compensation to those injured as a result of medical negligence, while attempting to maintain medical professional liability insurance at an affordable and reasonable cost. See 40 P.S. §1303.102. The section of MCare at issue addresses the competency of an expert to offer an expert medical opinion in a medical professional liability action. 40 P.S. §1303.512. One need look no further than the Pennsylvania Rules of Evidence, Pa.R.E. § 101 et seq., to conclude that this section of MCare is a rule of evidence. For instance, Pennsylvania Rule of Evidence 601 relates to the competency of witnesses. Similarly, Pennsylvania Rule of Evidence 702 addresses expert witness testimony. Although McGlaughlin argues that the Pennsylvania Supreme Court’s adoption of the Pennsylvania Rules of Evidence is indicative of the Supreme Court’s exclusive authority in this area, that argument ignores the plain language of the rules of evidence. Pa.R.E. 601 unambiguously states that “[e]very person is competent to be a witness except as otherwise provided by statute...Pa.R.E. 601. (emphasis added) Thus, the very rule the Supreme Court adopted under the authority of Article V, Section 10(c), of the Pennsylvania Constitution recognizes the legislature’s authority to regulate in this area. Id.; see also, Commonwealth v. Newman, 534 Pa. 424, 429, 633 A.2d 1069, 1071 (1993) (stating the legislature is constitutionally authorized to enact rules governing witness competency). In accordance with the legislature’s history of enacting rules of evidence as confirmed by the abundance of case law on this issue, I find that the legislature’s enactment of MCare section 512, 40 P.S. §1303.512, is not an unconstitutional infringement upon the rule-making authority of the Pennsylvania Supreme Court.

In the alternative, McGlaughlin requested this court to certify the interlocutory order of September 5, 2003, for appellate consideration.1 will grant McGlaughlin’s request in this regard.

The order in question addresses the applicability and interpretation of a recent legislative enactment, MCare section 512. 40 P.S. §1303.512. Due to the recency of the legislation, appellate courts have yet to consider the precise issue which the September 5, 2003 order addressed. One need look no further than the Lancaster Court of Common Pleas decision in Spotts v. Small, 61 D.&C.4th 225 (Lancaster Cty. 2003) to recognize that there is substantial ground for a difference of opinion in construing MCare section 512. Moreover, as evidenced by the grant of summary judgment, resolution of the issue presented a controlling question of law as it affected two out of three of the primary defendants. Proceeding to trial against the sole remaining primary defendant prior to appellate consideration of the subject issue may result in duplication of trial and a waste of judicial assets. Thus, immediate appellate consideration of the September 5, 2003 order will materially advance the ultimate determination of this litigation.

For the foregoing reasons, the attached order is entered.

ORDER

And now, October 6, 2003, the plaintiffs’ motion for reconsideration is denied. However, the plaintiffs’ request for amendment of the September 5,2003 order is granted. The September 5, 2003 order is amended to include the following:

“The court is of the opinion that this order involves a controlling question of law as to which there is substantial ground for a difference of opinion and that an immediate appeal from this order may materially advance the ultimate determination of the matter.”

In all other respects, the September 5, 2003 order is confirmed.

      . 42 Pa.C.S. §702(b) provides:

        “Interlocutory appeals by permission. — When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order.”

      . The action against Gettysburg Hospital was based upon a theory of vicarious liability.

      . In early February of 2002, the insurance carrier for the several defendants, PHICO Insurance Company, filed bankruptcy proceedings. This court, on February 15, 2002, entered a stay pursuant to an order of the Pennsylvania Commonwealth Court docketed at 427 M.D. 2001. This court lifted the stay on October 23, 2002, as a result of pleadings the defendants filed.

      . Similar omnibus pretrial motions were filed on behalf of defendant Dr. Rukhsana K. Rahman which were granted in part and denied in part. The claim against Dr. Rahman, however, was not dismissed pursuant to summary judgment. In the September 5, 2003 order, this court reserved ruling until the time of trial on whether Dr. Bernad may express an expert opinion in regard to the standard of care applicable to Dr. Rahman’s actions. Rather than proceed to trial as scheduled against the remaining defendant doctor, McGlaughlin requested a continuance in order to allow an opportunity for the filing of a motion to reconsider and a request to have this matter certified for appeal. As a result, trial of McGlaughlin’s remaining claim against Dr. Rahman and Gettysburg Hospital was continued at the call of either party.

      . Article V, Section 10, of the Pennsylvania Constitution provides:
      “Section 10. Judicial administration.

      “(a) The Supreme Court shall exercise general supervisory and administrative authority over all the courts and justices of the peace, including authority to temporarily assign judges and justices of the peace from one court or district to another as it deems appropriate....
      “(b) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace, including the power to provide for assignment and reassignment of classes of actions or classes of appeals among the several courts as the needs of justice shall require, and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the judicial branch, if such rules are consistent with this constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions.” Pennsylvania Constitution Article V, Section 10. (emphasis added)

      . McGlaughlin’s motion to reconsider triggers consideration of issues related to waiver and procedural compliance with Pa.R.C.P. 235 (relating to notice to attorney general when a party challenges the constitutionality of a statute). Indeed, McGlaughlin’s constitutional challenge to MCare was pled for the first time in the motion to reconsider despite extensive briefing and argument on the several defendants’ motions in limine prior to the September 5, 2003 order. Similarly, as of the date of McGlaughlin’s motion to reconsider, the Pennsylvania attorney general’s office had not been provided notice of the challenge. It appears that on September 26, 2003, McGlaughlin, for the first time, provided notice of the challenge to the attorney general.
      Although McGlaughlin’s belated assertion of this issue is not favored and presents the potential for waste of judicial resources, appellate authority advises that “there is no requirement that grounds for a petition for reconsideration be raised during the trial or during the pretrial period. Moore v. Moore, 535 Pa. 18, 25 n.1, 634 A.2d 163, 167 n.1 (1993) (citing Commonwealth of Pennsylvania, Pennsylvania Liquor Control Board v. Willow Grove Veterans Home Association, 97 Pa. Commw. 391, 509 A.2d 958 (1986); Pedersen v. South Williamsport Area School District, 80 Pa. Commw. 292, 471 A.2d 180 (1984)). While a strict waiver rule enunciated by our appellate courts would aid the efficient administration of justice, an exhaustive search for authority in this area has failed to reveal any such clear directive. Accordingly, in the exercise of discretion, the issue will be considered despite the procedural posture within which it was raised.
      The manner in which McGlaughlin raised the constitutional challenge most likely precipitated his noncompliance with Pa.R.C.P. 235. Although that rule requires notice of a constitutional challenge to the provisions of a statute be provided to the attorney general of Pennsylvania, it also provides exceptions for the court to proceed without prior notice. Additionally, our appellate courts have recognized that it is sufficient for a party to substantially comply with the requirements of this rule. Adelphia Cablevision Associates of Radnor L.P. v. University City Housing Co., 755 A.2d 703, 709 (Pa. Super. 2000). In light of the procedural posture of this case, I will address McGlaughlin’s issue on its merits noting that the attorney general has since been notified of McGlaughlin’s challenge.

      . Although the court’s grant of summary judgment in favor of Dr. Codori and Dr. Dufendach effectively ended the litigation in regard to those defendants, McGlaughlin’s action against Dr. Rahman and Gettysburg Hospital survived summary judgment. Since the order did not dispose of the entire litigation, the order is interlocutory in nature. 42 Pa.C.S. §742; Napet Inc. v. John Benkart & Sons Co., 288 Pa. Super. 187, 189-90, 431 A.2d 351, 352 (1981).

      . In Spotts, the Lancaster Court of Common Pleas reached a contrary result in considering the identical issue presented to this court.


source: Caselaw Access Project

author: SHEPPARD JR., J.,

license: Public Domain

text:
    Albertson v. Wyeth Inc.

      H. Laddie Montague, Russell D. Henlcin, Jonathan Auerbach, Shanon J. Carson, Joseph D. Shein, Joseph C. Kohn, Martin J. D’Urso, Michael J. Boni, Diana Liberto, Seth W. Goren, Thomas E. Mellon Jr., John A. Corr, Stephen A. Sheller, Nancy G. Rhoads and Marc B. Auerbach, for plaintiffs.

      Michael T. Scott, Robert A. Nicholas and Kelley A. Grady, for defendants.
    July 8, 2003
   SHEPPARD JR., J.,

Presently before the court are the preliminary objections of Wyeth Inc. and Wyeth Pharmaceuticals Inc. a/k/a Wyeth-Ayerst Pharmaceutical. These objections present a demurrer to plaintiffs’ consolidated amended complaint and a motion to strike plaintiffs’ request for attorney fees.

FACTUAL BACKGROUND

The consolidated, amended complaint sets forth the following factual allegations.

Wyeth manufactures, promotes and distributes three estrogen or hormone replacement drugs known as “Premarin,” “Prempro” and “Premphase.” Compl. ¶13. Premarin is a conjugated estrogen that was first manufactured and marketed by Wyeth in 1942. Compl. ¶15. It is prescribed for women suffering from severe menopausal symptoms. Compl. ¶15. When taken alone (or “unopposed”), conjugated estrogen increases the risk of uterine cancer in post-menopausal women with intact uteri. The use of estrogen alone is referred to as estrogen replacement therapy (ERT).

Prempro consists of two types of hormones: conjugated equine estrogens and progestins. Compl. ¶¶15-16. Because it combines estrogen and progestin, Prempro is often abbreviated as “E & P.” The risk of uterine cancer is decreased when estrogen is combined with progestin. The use of estrogen and progestin in the treatment of menopausal symptoms is referred to as hormone replacement therapy (HRT).

In December 1994, the United States Food and Drug Administration (FDA) granted Wyeth’s petition for approval to market Prempro as separate tablets of Premarin (0.625 mg) and medroxyprogestrone acetate (MPA) called Cyrcrin (2.5 mg). Compl. ¶18. Prempro was to be prescribed for post-menopausal women with uteri for the treatment of moderate severe vasomotor symptoms associated with menopause, vulvar and vaginal atrophy and the prevention of osteoporosis. Compl. ¶18.

According to plaintiffs, there are an estimated 50 million post-menopausal women in the United States. Compl. ¶20. In July 2002, approximately 38 percent of post-menopausal women in the United States used estrogen or HRT. Compl. ¶21. At that time, about six million American women were taking Prempro. Compl. ¶22. Prempro is the best-selling HRT or estrogen-progestin combination drug in the United States. Compl. ¶23.

Wyeth has promoted Prempro and Premarin by marketing efforts directed to doctors and by direct-to-consumer efforts. According to plaintiffs, Wyeth utilized marketing techniques with the intention and effect of creating a lifelong demand for its estrogen replacement drugs on the part of post-menopausal women. Compl. ¶24. Wyeth’s direct-to-consumer efforts have included print advertisements, videotapes and brochures directed to consumers, as well as “product placement” efforts in which estrogen products are favorably positioned in entertainment vehicles or favorably described in the popular press by hired spokespersons. Compl. ¶25.

In 1999, Wyeth spent $34.7 million and in 2000, $37.9 million, on direct-to-consumer advertising for Prempro. Compl. ¶26. In 2001, Premarin became the first Wyeth brand to surpass $2 billion in annual sales. Compl. ¶27. According to plaintiffs, Wyeth’s marketing of Prempro and Premarin present menopause symptoms in dire and detailed fashion, describe purported benefits of ERT/HRT that have never been proven and minimize and distort the risks associated with ERT/HRT. Compl. ¶30.

Premarin and Prempro were designed and have been approved by the FDA to relieve only menopausal symptoms, such as hot flashes, vaginal atrophy and osteoporosis. Compl. ¶32. However, according to plaintiffs, Wyeth has long touted its estrogen products as having additional benefits. Compl. ¶32. Thus, in print advertisements, brochures and magazine advertisements, Wyeth claimed that Premarin could be used to relieve various ills including tension, irritability, headaches, undue fatigue, depression and insomnia when caused by declining menopausal estrogen levels. Compl. ¶33. Additionally, Wyeth claimed that Alzheimer’s disease, vision problems, tooth loss, heart disease and colon cancer could be treated with Premarin or Prempro. Compl. ¶35. Wyeth also suggested that its conjugated equine estrogen was appropriate for treating or preventing, among other things, memory loss, colon cancer and age-related vision loss. Compl. ¶36.

In 1993, Wyeth distributed a videotape to consumers entitled “What every woman should know about estrogen.” The videotape claimed to be a seminar for women and depicted a female doctor advising women about menopause, conjugated equine estrogen (CEE) and progestin. Wyeth’s video seminar warned of a wide variety of illnesses and ailments purportedly associated with menopause. Among other things, Wyeth represented that estrogen loss causes bone to become brittle, skin to become dryer and sexual intercourse to become “painful and irritating.” Plaintiffs allege that while the videotape was exhaustive in its warnings about menopause, it glossed over the dangers and risks associated with ERT. Compl. ¶43. Additionally, the video “seminar” recommended that estrogen should be combined with progestin when taken by women who have not had hysterectomies. Compl. ¶45. The video seminar also represented that estrogen provided “long-term health protection” and should be continued indefinitely, even after short-term menopausal symptoms, such as hot flashes, had subsided. When a purported consumer inquired how long Premarin should be taken, Wyeth’s doctor spokesperson responded “anywhere from five to 10 years in order to get protection from long-term problems.” Compl. ¶46.

With regard to breast cancer risks, Wyeth represented in its video seminar that the benefits of taking estrogen “far outweigh the risks for women unless they faced a particularly high risk of breast cancer.” Plaintiffs allege that the opposite is true: the risks of taking Prempro far outweigh the benefits. Compl. ¶47. Wyeth also allegedly misrepresented that most studies showed no increased risk of breast cancer associated with taking estrogen at usual doses, and that breast cancer risks were only elevated when estrogen was taken at higher doses “for more than 10 years.”

At least until mid-2002, Wyeth distributed a Prempro promotional brochure targeted for women consumers that had the words “Starting your Hormone Replacement Therapy” at the top of the front cover. At the bottom of the cover of this brochure and at the bottom of nine of its 17 pages of text, the following words appear: “Say yes to PREMPRO.” Compl. ¶49. Wyeth’s “Say yes to PREMPRO” brochure contains testimonials from six women who claim to have used estrogen or Prempro for an average of 12.2 years. Each of these women is reported to have used Prempro and/or Wyeth’s estrogen-only therapy, Premarin, for at least seven years. Compl. ¶50. Wyeth’s annual report contains a similar testimonial from a woman. Compl. ¶52.

According to plaintiffs, Wyeth’s “Say yes to PREMPRO” brochure does not warn about, among other things, breast cancer even though its profiles all have used estrogen or Prempro for more than five years. Compl. ¶53. In the section of Wyeth’s “Say yes to PREMPRO” brochure devoted to “side effects,” Wyeth warns about uterine cancer (associated with estrogen-only therapy), worsening diabetes, blood clots, nausea, abdominal pain, irregular bleeding, headache, hair loss, and breast tenderness, but does not warn about breast cancer. Compl. ¶54.

Until mid-2002,Wyeth used a Prempro package insert, which states under the subheading “Cancer of the breast”:

“Most studies have not shown a higher risk of breast cancer in women who have ever used estrogen. However, some studies have reported that breast cancer developed more often (up to twice the usual rate) in women who used estrogen for long periods of time (especially more than 10 years), or who used high doses for shorter time periods.” Compl. ¶55.

Though worded slightly differently, this same statement appears in a November 2001 Wyeth leaflet that addresses estrogens generally. According to plaintiffs, the information provided by Wyeth to consumers from at least 1993 to mid-2002 consistently and uniformly misrepresented that its estrogen replacement products (with or without progestin) were to be used by consumers on a long-term basis, even after menopausal symptoms had subsided, and did not present significant breast cancer risks unless consumed for 10 years or more in unusually high doses. Wyeth also omitted from its 1993-2002 warnings and direct-to-consumer promotions any mention of the diminished effectiveness of standard mammography attributable to HRT. Compl. ¶61.

On July 8,2002, the National Heart, Lung, and Blood Institute (NHLBI) of the National Institutes of Health (NIH) announced that it had decided to terminate prematurely a portion of its Women’s Heath Initiative (WHI) study that was designed to examine the effect of estrogen plus progestin on the prevention of heart disease and hip fractures, and to identify any associated cancer risks. Compl. ¶64. The WHI study was designed in light of earlier studies that had demonstrated that long-term HRT or ERT increased breast cancer risks as well as the risks of blood clots in the legs and lungs. Compl. ¶75. The WHI study was designed to continue for 8.5 years or until 2005. The NHLBI stopped the HRT portion of the study, however, after an average follow-up of only 5.2 years, primarily due to an unacceptable risk of invasive breast cancer associated with Prempro. Compl. ¶65. Prempro was the only HRT drug given to the women who participated in the WHI study. Compl. ¶66.

In the WHI study, the risk of invasive breast cancer increased by 26 percent after using Prempro for an average of 5.2 years. Compl. ¶67. The WHI study also demonstrated that, after five years of use, the overall risks of Prempro outweigh any benefits which it may produce. Compl. ¶68. In addition to the increased breast cancer risk associated with Prempro, the WHI study showed the following increases among the women who participated in the study: (1) a 41 percent increase in strokes, (2) a 29 percent increase in heart attacks, and (3) more than doubling in the rates of venous thromboembolism (blood clots). The benefits of Prempro revealed in the WHI study appear to be fewer colorectal cancers and hip fractures. Compl. ¶69. When the WHI Data and Safety Monitoring Board decided to terminate the WHI study prematurely, it sent a letter to each study participant informing them that the board had concluded that “it has become clear that the health risks of taking estrogen plus progestin now exceeds the benefits.” As a result, the WHI study participants were instructed to “Stop taking your pills, maintain their clinic appointments and receive yearly mammograms.” Compl. ¶73.

Although the WHI study was the first large, randomized, and placebo-controlled trial to examine the risks and benefits for healthy women of taking estrogen and progestin over an extended period of time, a number of peer-review studies had previously shown higher breast cancer rates among women who were HRT users, especially those who were taking a formulation that, like Prempro, contained progestin and particularly when the drug was taken for five or more years. Compl. ¶¶81-93. According to the plaintiffs, Wyeth knew or should have known that it was misleading to suggest to women that breast cancer only became pronounced after 10 years or more of the estrogen use, particularly at unusually high doses. Compl. ¶94.

By early 1997, the evidence of an association between HRT and breast cancer was strong enough to lead to the publication of a letter in the British Journal of Medicine entitled, “Women need to be warned about dangers of hormone replacement therapy.” Compl. ¶95. HRT significantly increases the risk of breast cancer to a far greater extent than does estrogen-only therapy. Compl. ¶97. A report published in Steroids 2000 Oct-Nov estimated that increased risk of breast cancer attributable to HRT use is some 212-fold greater than the effect of ERT. Compl. ¶97. Other studies have demonstrated that estrogen and progestin taken in combination increase breast tissue density to a greater extent than post-menopausal ERT alone and that HRT shows an increase in breast density on mammograms. Compl. ¶¶98-99. Increasing breast tissue density decreases the effectiveness of standard mammography. Compl. ¶100.

Plaintiffs allege that the substantially increased risk of invasive breast cancer associated with long-term use of estrogen and/or progestin had been clearly demonstrated well before the WHI study. Wyeth failed to acknowledge and provide this warning. Instead, Wyeth warned that the effect of adding progestins for the risk of breast cancer was unknown and suggested that 10 years of exposure was the threshold for harm. Compl. ¶106.

In July 2002, as the result of the premature termination of the Prempro component of the WHI study, Wyeth acknowledged the significant risks of breast cancer and cardiovascular disease presented by hormone therapy. In July 2002, Wyeth changed its warning labels and curtailed its direct-to-consumer marketing of Prempro. On September 4, 2002, Wyeth amended Prempro and Premarin package inserts in light of the WHI study. Compl. ¶107. Wyeth forwarded letters to physicians informing them of the package insert update. Wyeth did not utilize a direct-to-consumer campaign to inform consumers of the package insert update. Compl. ¶108. The amended package insert acknowledges that “Prempro... may increase your risk of getting breast cancer, blood clots, heart attacks and strokes.” Compl. ¶109. The new package insert does not refer to “a long-term,” or give any indication that the risk refers to a time period other than the “10 years or more” period about which Wyeth warned previously. Compl. ¶109. The package insert also states, “Mammography should be scheduled depending on your risks’ factors” and that in light of associated health risks Prempro should only be used “as long as needed for relief from menopausal symptoms.” Compl. ¶111.

On August 21,2002, plaintiffs Claudette Albertson and Thelma D. Reese E.D, filed a complaint against Wyeth. On or about the same date, plaintiff Finnegan filed a similar complaint, followed by plaintiff Everette. On January 22, 2003, the matters were consolidated and a consolidated amended complaint was filed. The complaint asserts five counts against Wyeth: (a) negligence/medical monitoring (Count I), (b) unjust enrichment (Count II), (c) violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (Count III), (d) breach of fiduciary duty (Count IV) and (e) fraud (Count V). Wyeth has filed preliminary objections in the nature of a demurrer. Wyeth also contemporaneously filed a motion to strike plaintiffs’ claim for attorney fees.

DISCUSSION

A preliminary objection in the nature of a demurrer tests the legal sufficiency of the complaint. Constantino v. University of Pittsburgh, 766 A.2d 1265, 1268 (Pa. Super. 2001). The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Viglione v. Pennsylvania Department of Corrections, 781 A.2d 248, 250 n.3 (Pa. Commw. 2001). When considering preliminary objections, all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom are accepted as true, while conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion need not be regarded as such. Wagner v. Waitlevertch, 774 A.2d 1247, 1250 (Pa. Super. 2001).

Preliminary objections may only be granted in cases where it is clear and free from doubt that the facts alleged are legally insufficient to establish a right to relief. Stair v. Turtzo, Spry, Sbrocchi, Faul & LaBarre, 564 Pa. 305, 309, 768 A.2d 299, 301 (2001). For that reason, a demurrer should not be sustained simply because of the novelty of a claim. Denton v. Silver Stream Nursing and Rehabilitation Center, 739 A.2d 571, 575 (Pa. Super. 1999). Furthermore, if there is any doubt as to whether a demurrer should be granted, it should be resolved in favor of overruling the preliminary objections. Lennon ex rel. v. Wyeth-Ayerst Laboratories Inc., 2001WL 755944, *1 (Pa. Super. June 14, 2001).

A. Demurrer to Count I (Negligence/Medical Monitoring)

Wyeth first asserts that Count I of plaintiffs’ complaint alleging a medical monitoring claim should be dismissed. This objection is overruled.

In Simmons v. Pacor Inc., 543 Pa. 664, 674 A.2d 232 (1996), our Supreme Court recognized medical monitoring as a viable cause of action under Pennsylvania law. In Simmons, the plaintiffs developed asymptomatic pleural thickening as a result of their occupational exposure to asbestos and sought damages for increased risk and fear of cancer. The Supreme Court held that damages for increased risk and fear of cancer were too speculative to be recoverable where cancer was not present. Because the plaintiffs in Simmons had not developed cancer, the court did not permit them to recover for their increase risk and fear of cancer. However, the Supreme Court did permit plaintiffs with asbestos-related asymptomatic pleural thickening to recover for medical monitoring. Redland Soccer Club Inc. v. Department of the Army and Department of Defense of the U.S., 548 Pa. 178, 196, 696 A.2d 137, 145 (1997).

In Redland Soccer Club Inc., supra, the Pennsylvania Supreme Court extended medical monitoring claims to non-asbestos-related injuries and articulated the necessary elements to state a claim for medical monitoring: “(1) exposure greater than normal background levels; (2) to a proven hazardous substance; (3) caused by defendants’ negligence; (4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease; (5) a monitoring procedure exists that makes the early detection of the disease possible; (6) the prescribed monitoring regime is different from that normally recommended in the absence of exposure; and (7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles.” Redland, 548 Pa. at 195-96, 696 A.2d at 145-46. (footnote omitted) The Supreme Court noted that expert testimony is required to prove each of these elements. Id. at 196, 696 A.2d at 146.

The Redland court cited four important policy reasons for recognizing claims for medical monitoring. First, medical monitoring “promote [s] early diagnosis and treatment of disease... resulting from exposure to toxic substances caused by a tort-feasor’s negligence.” Second, “allowing recovery for such expenses avoids the potential [for] injustice of forcing an economically disadvantaged person to pay for expensive diagnostic examinations necessitated by another’s negligence” and “affords toxic-tort victims, for whom other sorts of recovery may prove difficult, immediate compensation for medical monitoring needed as a result of exposure.” Third, medical monitoring “furthers the deterrent function of the tort system by compelling those who expose others to toxic substances to minimize risks and costs of exposure.” Finally, permitting the claim is “in harmony with the important public health interest in fostering access to medical monitoring testing for individuals whose exposure to toxic chemicals creates an enhanced risk of disease.” Redland at 194, 696 A.2d at 145 (quoting Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 976-77 (Utah 1993)).

Wyeth argues that plaintiffs have failed to meet the criteria enunciated in Redland, supra, to establish a claim for medical monitoring. Specifically, Wyeth contends that plaintiffs have failed to allege that they were exposed to a proven hazardous substance. Wyeth maintains that Prempro, a FDA approved drug, is not a hazardous substance since it is still on the market as a safe and effective treatment.

Wyeth further maintains that it cannot be negligent for its pre-WHI Prempro warnings because the language it used was the precise warning language the FDA told Wyeth it should use. In other words, Wyeth claims that the pervasive scheme of federal regulation governing the production, labeling and distribution of prescription drugs by the FDA implicitly preempts Pennsylvania’s tort claims for prescription drug manufacturers’ breach of duty to warn consumers.

The concept of preemption has its roots in the supremacy clause of the U.S. Constitution, Article VI, cl. 2. Preemption may be express or implied. Hillsborough County, Fla. v. Automated Medical Laboratories Inc., 471 U.S. 707, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985). Since Wyeth makes no claim that Congress expressly preempted state tort law, only the issue of implied preemption need be discussed.

Implied preemption arises in two ways. First, Congress may indicate an intent to assign an entire field of regulation in a given area to the federal government. Fidelity Federal Savings and Loan Ass’n v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2. (1982). Second, Congress may preempt state law to the extent that state law actually conflicts with federal law. Such a conflict arises when compliance with both federal and state law is impossible or when state law frustrates the purpose of federal law. Michigan Canners and Freezers Ass ’n v. Agricultural Marketing and Bargaining Bd., 461 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984).

There is no question that federal regulation of prescription drugs is comprehensive. Under the Food and Drag Administration (FDA) regulatory scheme, a manufacturer must obtain approval from the FDA to distribute its product. Sokoloski v. American Home Products, 2003 WL 1875113, *6 (Pa. Com. PL 2003), citing Food, Drug and Cosmetic Act, 21 U.S.C. §301 et seq. That approval is secured by formal application, which must include “full reports of investigations which have been made to show whether or not such drag is safe for use and whether such drug is effective in use.” Sokoloski, quoting 21 U.S.C. §355(b)(1)(A). Additionally, subsequent to FDA approval, a manufacturer is required to provide updated data or information to the FDA secretary, to enable the secretary to determine whether grounds exist for revocation of approval for the drag. 21 U.S.C. §355(k)(1). Moreover, the manufacturer, distributor or seller of the drag has the duty to label the prescription drug it has manufactured. Id., citing 21 U.S.C. §352(b); 21 CFR §201.100.

Preemption of state tort law, however, does not automatically follow extensive federal regulation. Mazur v. Merck & Co. Inc., 742 F. Supp. 239, 245 (E.D. Pa. 1990) citing Hillsborough, 471 U.S. at 715, 105 S.Ct. at 2376. In the absence of express preemption, there is a strong presumption that Congress did not intend to displace state law. Id. at 256. The presumption against preemption is even stronger when federal regulation would work to preempt state tort remedies. Id., citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 251, 104 S.Ct. 615, 623, 78 L.Ed.2d 443 (1984).

In Silkwood, v. Kerr-McGee Corp., supra, the court found that the Atomic Energy Act and its enacting regulations did not preclude an award of punitive damages under state law. The court recognized that states had been expressly prohibited from regulating the safety aspects of hazardous materials, but refused to extend that prohibition to state law remedies for persons injured from radiation exposure in nuclear plants. Id. at 250-51, 104 S.Ct. at 622-23. The court rejected the contention that the award of damages would conflict with the federal remedial scheme, finding that “paying both federal fines and state-imposed punitive damages for the same incident would not appear to be physically impossible.” Id. at 257, 104 S.Ct. at 626. The Supreme Court has since unanimously confirmed that “ordinarily, state causes of action are not preempted solely because they impose liability over and above that authorized by federal law.” English v. General Electric Co., 496 U.S. 72, 89, 110 S.Ct. 2270, 2280 (1990). (citation omitted)

Here, if federal regulation of prescription drugs were deemed exclusive, Pennsylvania’s ability to protect its citizens from the dangers of prescription drug use would be severely hampered. Further, it would leave Pennsylvania citizens harmed by prescription drugs without a state tort remedy. This court submits that Congress did not intend such a result. The tort law here is remedial and compensatory in nature, and does not conflict with any aspect of the FDA’s regulatory scheme. Thus, preemption of the state remedial measures available to plaintiffs cannot be implied.

Wyeth seeks to shield itself from liability, arguing that the language used for the warning label of Prempro was the precise language which the FDA approved. The same argument was raised and rejected in Mazur v. Merck & Co. Inc., 742 F. Supp. 239,247 (E.D. Pa. 1990). In Mazur, the defendant asserted that the pervasive scheme regulating all aspects of vaccines compelled a finding of implied preemption. The court disagreed, stressing the strong presumption against preemption of state tort remedies in areas of health and safety, and noting that preemption would leave Pennsylvania citizens harmed by vaccines without a remedy.

The court in Mazur also rejected the defendant’s narrower conflict preemption argument based on two observations appropriate to the circumstances here:

“Mere compliance with a FDA suggestion, or for that matter, regulation or order, does not mean that state tort law becomes irrelevant. First, compliance with an FDA regulation may establish that the manufacturer met the appropriate minimum standards of due care, but compliance does not necessarily absolve the manufacturer of all liability. See e.g., Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652, 658 (1st Cir. 1981). Manufacturers must meet state safety requirements, whether codified or embodied in the common law, in addition to satisfying the initial FDA requirements. Second, federal regulation serves a very different purpose than state tort law. Essentially, federal regulation serves a deterrent purpose by limiting the manufacturer of inherently dangerous products to those applicants who meet certain stringent safety standards, while state tort law serves the equally important purpose of compensating individuals injured by those very same products. Because compliance with FDA regulation will not ensure that a manufactured prod uct will not cause injury, compliance will not necessarily exempt a manufacturer from liability. When those products do cause injuries, the state tort system provides a means of compensation. State tort law is intended to supplement federal regulation by providing a vehicle for compensation of vaccine-related injuries.” Id. at 247. (footnote omitted) (emphasis added)

This analysis in Mazur supports this court’s refusal to find in this case that plaintiffs’ state tort claim is preempted, especially on preliminary objections.

Thus, Wyeth’s preliminary objection on the ground that plaintiffs’ claim is preempted by federal regulation is overruled.

In addition, this court finds that the complaint makes sufficient allegations to establish a claim for medical monitoring. Plaintiffs allege that Prempro is a hazardous substance, and that Wyeth failed to use reasonable care in informing consumers of the risks of Prempro which they knew, or about which they reasonably should have known. Compl. ¶127. Plaintiffs further allege that Wyeth breached the duty owed to plaintiffs and that Wyeth’s breach of the duty was the proximate cause of the injuries suffered. Compl. ¶130. According to plaintiffs, Wyeth’s actions that give rise to liability include: (1) erroneously suggesting to doctors and patients that the risk of breast cancer associated with Prempro use did not become substantial until 10 or more years of use, (2) failing to distinguish between the breast cancer risks posed by Prempro versus those posed by estrogen alone, (3) failing to inform doctors and patients that long-term use of HRT diminishes the effectiveness of standard mammography, (4) failing to inform doctors and patients that any bone density benefit that may be associated with Prempro was outweighed by increased risks of invasive breast cancer and cardiovascular disease, (5) failing to inform doctors and patients that, over time, the overall risks of daily use of Prempro, including risks of heart attack, stroke and blood clot, outweigh any associated osteoporosis benefits, and (6) combining progestin and estrogen in a product to be taken orally on a long-term basis, thereby substantially increasing plaintiffs’ risks of suffering breast cancer, heart attacks, strokes and blood clots. Compl. ¶129 a-e. Plaintiffs have sufficiently alleged that they are at a significantly increased risk of harm for developing breast cancer and have also pleaded with sufficiency that the monitoring regime is different from that normally recommended. Compl. ¶¶ 94, 100, 105, 131-32 a-n.

At this juncture it is important to reiterate two points noted earlier. First, prehminary objections may be granted only where it is free from doubt that the alleged facts are insufficient and, if there is any doubt whether a demurrer should be granted, it must be resolved in favor of overruling the objections. Second, in Redland, supra, our Supreme Court made clear that expert testimony is necessary to prove the elements requisite for a monitoring claim.

Recognizing that Redland provides that expert testimony is required and that plaintiffs receive all inferences reasonably flowing from the pleading, leads this court to overrule Wyeth’s preliminary objection that plaintiffs failed to plead the elements of a negligence/medical monitoring claim.

B. Demurrer to Count II (Unjust Enrichment)

Wyeth next contends that plaintiffs’ claim for unjust enrichment is insupportable as a matter of law because plaintiffs had no dealings with Wyeth that would support a quasi-contractual or equitable claim for unjust enrichment and because plaintiffs cannot point to any unjust benefit Wyeth received as a result of plaintiffs’ purchases of Prempro. Defendants’ memo, p. 13.

“ ‘Unjust enrichment’ is essentially an equitable doctrine.” Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999). “Where unjust enrichment is found, the law implies a contract, which requires the defendant to pay to the plaintiff the value of the benefit conferred.” Id., citing Schenck v. K.E. David Ltd., 446 Pa. Super. 94, 666 A.2d 327 (1995). “The elements necessary to prove unjust enrichment are: (1) benefits conferred on defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” Id. at 1203. The application of the doctrine depends on the particular circumstances presented. Further, “in determining if the doctrine applies, [the] focus is not on the intention of the parties, but rather on whether the defendant has been unjustly enriched.” Id. at 1204, quoting Schenck, at 97, 666, A.2d at 328.

To support their claim of unjust enrichment, plaintiffs allege: (a) that they purchased Prempro to obtain safe and effective treatment for certain medical symptoms (Compl. ¶135); (b) that defendants received payment from plaintiffs in exchange for Prempro under the guise that the drug was safe and effective (Compl. ¶136); (c) that as the intended and expected result of defendant’s nondisclosure and other wrongdoing, defendants have profited and benefited from the purchase of Prempro (Compl. ¶137); and (d) that defendants accepted and retained revenue and profits with full knowledge that plaintiff and the class were not receiving products of a quality, nature, fitness or value that they reasonably expected. Compl. ¶138.

The court finds plaintiffs’ reliance upon Tesauro v. Quigley Corp., 2001 WL 1807782 (Pa. Com. Pl. 2001) unpersuasive. In Tesauro, plaintiffs alleged that defendant Quigley, the manufacturer of Cold-Eeze zinc lozenges, touted its ability to prevent colds and pneumonia and to reduce the severity of colds and allergies. The advertisements described these health claims as clinically proven. As a result, in 1997 the sales of Cold-Eeze reached $10.2 million. Several years later, the Federal Trade Commission (FTC) filed a complaint against the defendant charging that the advertisements were false and misleading because defendant did not have a reasonable basis for claiming that Cold-Eeze had these beneficial health effects. The FTC and the defendant entered into a consent order that defendant would make no further health claims about Cold-Eeze until it had reasonable basis for making such a claim. Tesauro filed a complaint against Quigley, alleging unjust enrichment along with other claims to which the defendants filed preliminary objections. The court overruled the defendants’ preliminary objections regarding plaintiffs’ unjust enrichment claim because the complaint set forth a claim that plaintiffs did not receive a cold remedy when they bought Cold-Eeze, and it would be inequitable for the defendant to keep the money if the plaintiffs did not, in fact, receive a cold remedy.

Here, unlike Tesauro, plaintiffs did receive the product they sought, a hormone replacement therapy. Plaintiffs merely allege that Prempro was not safe, and that Wyeth knew it was unsafe but promoted the drug anyway. These allegations are insufficient to state a claim for unjust enrichment. The preliminary objection to Count II is sustained.

C. Demurrer to Count III (Pennsylvania’s Unfair Trade Practices and Consumer Protection Law)

Wyeth preliminarily objects to Count III, alleging violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL). Plaintiffs allege that Wyeth failed to provide plaintiffs with a full and accurate description of Prempro and knowingly and intentionally misrepresented, concealed or made false claims to plaintiffs regarding Prempro. Compl. ¶¶ 145-47. Plaintiffs urge that this conduct constitutes a violation of the UTPCPL. The UTPCPL makes unlawful unfair methods of competition and deceptive practices in the conduct of trade or commerce. Luke v. American Home Products Corp., 1998 WL 1781624 *8 (Pa. Com. Pl. 1998), citing 73 P.S. §§201-3. The Act provides a means for redress for various misrepresentations and fraudulent conduct that create a likelihood of confusion or misunderstanding. Id., see 73 P.S. §201-2(4).

Wyeth maintains that plaintiffs cannot assert a UTPCPL claim since the Act does not apply to claims by prescription drug users against prescription drug manufacturers. To support this argument, Wyeth relies upon the learned intermediary doctrine which provides that prescription drug manufacturer must provide its warnings about a drug to prescribing physicians, but need not provide the warnings to patients who use the drug. Further, Wyeth argues that plaintiffs fail to make a single well-founded allegation in support of their UTPCPL claim.

Plaintiffs, on the other hand, argue that an unsettled question of law exists for this court to decide whether the UTPCPL applies to prescription drugs. Plaintiffs contend that the learned intermediary doctrine does not apply to the UTPCPL and that a drug manufacturer who engages in direct-to-consumer advertising has a duty not to withhold material information. Specifically, the plaintiffs urge that this court should create a limited exception to the learned intermediary doctrine where direct-to-consumer advertising is used.

In Luke v. American Home Products Corp., supra, the court addressed this same issue. In Luke, the plaintiff was prescribed dexfenfluramine hydrochloride (a/k/a/ Redux) as a weight loss treatment. After taking Redux for several months, the plaintiff began to experience difficulty breathing and was subsequently diagnosed with primary pulmonary hypertension and was placed on the list for a double transplant. Plaintiff filed a complaint against the manufacturer of Redux alleging, inter alia, a violation of the UTPCPL. The manufacturer filed preliminary objections. In sustaining the preliminary objections to plaintiffs’ UTPCPL claim, the court reasoned that:

“Under the ‘learned intermediary doctrine,’ a manufacturer of prescription drugs must direct information and warnings to prescribing physicians, not the patient. See Taurino v. Ellen, 397 Pa. Super. 50, 579 A.2d 925 (1990). There can be no cause of action based on defendants’ alleged omissions because defendants had no duty to disclose any information directly to plaintiff.

“Further, to permit a cause of action under the UTPCPL in this case would effectively make a drug manufacturer the absolute guarantor of the anticipated results and effects of a prescription drug. Pennsylvania law, however, recognizes that some prescription drags by their very nature can never be made safe. See Makripodis by Makripodis v. Merrell-Dow Pharm. Inc., 361 Pa. Super. 589, 523 A.2d 374 (1987). An inconsistency would result if we were to hold that drug manufacturers must guarantee that prescription drags are completely safe. The premise behind the UTPCPL was not meant to engender such a result.” Luke, at *8.

This court finds the rationale in Luke persuasive, and believes it would be improvident to accede to plaintiffs’ argument that a limited exception to the learned intermediary doctrine should be created based upon direct-to-consumer advertising. Media dissemination of information concerning the existence of these drugs does not enhance the public’s ability to acquire them, as the skill and knowledge of the physician still must be brought to bear in a determination of whether the pharmaceutical is appropriate for the patient. Lennon ex rel. v. Wyeth-Ayerst Laboratories Inc., 2001 WL 755944, *2 (Pa. Super. 2001). Here, although Wyeth engaged in direct-to-consumer advertising, the consumer still required a prescription from a physician, a learned intermediary, to acquire Prempro.

Wyeth’s preliminary objections to Count III are sustained.

D. Demurrers to Count IV (Breach of Fiduciary Duty) and Count V (Fraud)

Wyeth contends that plaintiffs’ claims for breach of fiduciary duty and fraud are barred by the learned intermediary doctrine. The court agrees. The court finds that plaintiffs have no cause of action for breach of fiduciary duty and fraud in light of the learned intermediary doctrine. The preliminary objections with respect to plaintiffs’ breach of fiduciary duty claim and fraud are sustained.

E. Motion to Strike Plaintiffs’ Claim for Attorney Fees

In addition to the preliminary objections, Wyeth contemporaneously filed a motion to strike plaintiffs’ request for attorney fees. Wyeth contends that plaintiffs’ claim for attorney fees has no legal basis since there is no statutory or legal grounds that provides for such recovery. Wyeth further argues that medical monitoring does not give rise to counsel fees being paid out of a common fund.

Under Pennsylvania law, “a litigant cannot recover counsel fees from an adverse party unless there is express statutory authorization, a clear agreement of the parties, or some other established exception.” Snyder v. Snyder, 533 Pa. 203, 212, 620 A.2d 1133, 1138 (1993). This is commonly referred to as the “American” rule. Jones v. Muir, 511 Pa. 535, 541, 515 A.2d 855, 858 (1986). However, Pennsylvania has long recognized the common fund doctrine as an exception to the “American” rule. Id. In Jones, our Supreme Court held that the common fund doctrine is within the parameters of section 2503(8) of the Judicial Code, 42 Pa.C.S. §2503(8). Id. at 542, 515 A.2d at 858-59. Section 2503(8) of the Judicial Code authorizes the award of attorney fees to “[a]ny participant who is awarded counsel fees out of a fund within the jurisdiction of the court pursuant to any general rule relating to an award of counsel fees from a fund within the jurisdiction of the court.” 42 Pa. C.S. §2503(8).

Our Supreme Court has repeatedly described the circumstances under which the “common fund” exception applies:

“Where many persons have a common interest in a trust property or fund, and one of them, for the benefit of all, at his own cost and expense, brings suit for its preservation or administration, the court of equity in which suit is brought will order plaintiff to be reimbursed his costs and expenses, including counsel fees, from the property of the trust, or order those benefited to contribute proportionately toward that expense.” International Organization Master, Mates and Pilots of America, Local No. 2 v. International Organization Master, Mates and Pilots of America Inc., 497 Pa. 102, 114, 439 A.2d 621, 627 (1981).

Here, the plaintiffs filed a negligence/medical monitoring claim against Wyeth and request the creation of a fund from which a monitoring system could be established for the early detection of breast cancer. At this time, a fund does not exist and plaintiffs’ claim for attorney fees is premature.

Thus, for the present, this court grants Wyeth’s motion to strike plaintiffs’ claim for attorney fees and dismisses plaintiffs’ claim for attorney fees without prejudice.

CONCLUSION

For the reasons discussed, this court finds that:

(a) Wyeth’s preliminary objections to plaintiffs’ negligence/medical monitoring claim (Count I) is overruled;

(b) Wyeth’s preliminary objection to plaintiffs’ unjust enrichment claim (Count II) is sustained;

(c) Wyeth’s preliminary objection to plaintiffs’ claim under the UTPCPL (Count III) is sustained;

(d) Wyeth’s preliminary objection to plaintiffs’ breach of fiduciary duty claim (Count IV) is sustained;

(e) Wyeth’s preliminary objection to plaintiffs’ fraud claim (Count V) is sustained; and

(f) Wyeth’s motion to strike plaintiffs’ request for attorney fees is granted. The court finds plaintiffs’ claim for attorney fees is premature and is dismissed without prejudice.

This court will issue a contemporaneous order consistent with this opinion.

ORDER

And now, July 8,2003, upon consideration of Wyeth’s preliminary objections to the consolidated amended complaint and Wyeth’s motion to strike plaintiffs’ request for attorney fees, the responses in opposition, the respective memoranda, all matters of record, and after oral argument and in accord with the contemporaneous opinion being filed of record, it is ordered that:

(a) Wyeth’s preliminary objection to plaintiffs’ negligence/medical monitoring claim (Count I) is overruled;

(b) Wyeth’s preliminary objection to plaintiffs’ unjust enrichment claim (Count II) is sustained;

(c) Wyeth’s preliminary objection to plaintiffs’ claim under the UTPCPL (Count III) is sustained;

(d) Wyeth’s preliminary objection to plaintiffs’ breach of fiduciary duty claim (Count IV) is sustained;

(e) Wyeth’s preliminary objection to plaintiffs’ fraud claim (Count V) is sustained; and

(f) Wyeth’s motion to strike plaintiffs’ request for attorney fees is granted. The court finds that plaintiffs’ claim for attorney fees is premature and is at this juncture dismissed without prejudice.

      . For purposes of these objections, the court will accept, as true, the facts set forth in the complaint.

      . In addition, this court finds Wyeth’s reliance upon White v. Weiner, 386 Pa. Super. 111, 119, 562A.2d 378, 383 (1989), aff’d, 525 Pa. 572, 583 A.2d 789 (1991), misplaced. In White, our Superior Court addressed a matter that involved bulk sale of the drug protamine sulfate. The product was sold to Upjohn Pharmaceuticals Company for conversion into a final product which would then be distributed to medical care providers for prescription to the individual parties. In White, the court declined to impose on a bulk supplier of pharmaceutical chemicals the same strict duty to warn required of the manufacturer of the marketed drug.

      . Discussion, supra, p. 525.

      . Discussion, supra, p. 527.

      . The court acknowledges that it may be that the plaintiffs’ expert reports will not be sufficient to meet the mandates of Redland. However, at this point in the proceedings it would be improvident to dismiss the claim.

      . Although Count II was designated a claim for unjust enrichment, the allegations suggest a claim for breach of an implied warranty of merchantability and fitness for a particular purpose. However, prescription drugs are not covered by a warranty of fitness for ordinary purpose. Luke v. American Home Products Corp., 1998 WL1781624, *4-5 (Pa. Com. Pl. 1998).

      . Because this court finds that plaintiffs have no cause of action under the UTPCPL based on the learned intermediary doctrine, it is not necessary to address Wyeth’s further argument to the UTPCPL claim challenging the sufficiency of plaintiffs’ pleading.


author: COHEN, J.,

text:
    Levey v. Cogen Sklar LLP

      Heather E. Rennie and Neil G. Epstein, for plaintiff.

      David C. Franceski Jr. and Michael D. O Mara, for defendant.
    June 20, 2003
   COHEN, J.,

Before the court is the motion for partial summary judgment of Marvin A. Levey. For the reasons fully set forth below, said motion is granted in part.

I. BACKGROUND

The parties to the instant litigation include plaintiff, Marvin A. Levey, a retired partner of the accounting firm, Cogen Sklar LLR Levey worked for Cogen Sklar since 1981, and for its predecessor for approximately 20 years prior thereto. When Levey’s former firm first merged with Cogen Sklar in 1981, a partnership agreement was drafted and signed by all members of the partnership. (PI. mem. exhibit B.) This document, executed December 31,1981, fully sets forth the rights and obligations of the partnership, including each partner’s profit percentages (|5.A & B), and also provides for: (1) mandatory retirement upon age 65 ^15.A); (2) mandatory benefits at the time of retirement or withdrawal under set formulas (cfJ[15.B & 16.B); and (3) the redistribution of each retiring or withdrawing partner’s profit percentages to the remaining partners. CJ15.G.)

Over the years, Cogen Sklar from time to time would admit new partners. Upon joining the partnership, the new partners would sign an agreement consenting to be bound by the terms of the partnership agreement. In 1996, the partners of Cogen Sklar, including Levey, began discussions about revising and updating the partnership agreement, including, inter alia, its retirement provisions. (PL mem. exhibit A. a^8.) In March 1998, a consultant was hired to review the partnership structure, including the issue of retirement payments. Following the review, Cogen Sklar adopted a number of financial changes to the partnership, but did not change the retirement provisions. (Id. at ¶12; def. mem. at 4.)

At a partnership meeting on September 25,2000 (one month before Levey’s 65th birthday), the partners discussed suspending the retirement and withdrawal provisions of the partnership agreement pending the completion of a new partnership agreement. (Def. mem. at 7.) At the meeting, Levey voiced his opposition to such a plan. Id. Thereafter, on September 27, 2000, Levey submitted a letter noticing his intent to withdraw from the partnership prior to any alteration of the partnership agreement. (PI. mem. exhibit K.) In his letter, he also stated “[i]f no such alternation, amendment or change occurs prior to March 31, 2001, my withdrawal will be effective at the end of the partnership’s fiscal year, March 31, 2001 or same may be. deemed my mandatory retirement at such time.” Id. On September 29, 2000, the remaining members of the partnership signed an agreement to formally suspend all provisions of the partnership agreement pertaining to retirement and withdrawal benefits (the consent). (PI. mem. exhibit L.)

II. THE LITIGATION

This litigation surrounds the payment of retirement benefits to Levey, which he claims became due on April 30, 2001. It is not disputed that Levey is entitled to retirement benefits, rather it is the amount of such benefits which is at issue. In his complaint, Levey asserts claims against Cogen Sklar for: (1) breach of contract; (2) promissory estoppel; (3) breach of duty of good faith; and (4) breach of fiduciary duty. (Id. at exhibit C.)

Cogen Sklar has asserted the defenses of novation and impossibility of performance in response to the allegations of the complaint. In addition, Cogen Sklar brought counterclaims against Levey for: (1) tortious interference with contractual relations; (2) breach of contract; (3) breach of fiduciary duty; and (4) misappropriation of trade secrets. (Id. at exhibit D.) Specifically, Cogen Sklar alleges that Levey wrongfully solicited clients, wrongfully removed proprietary customer information from Cogen Sklar, refused to bill clients for work done while he was employed by Cogen Sklar, and that he refused to properly transition his clients, causing the loss of revenue and clients to Cogen Sklar. Id.

Levey has filed the instant motion seeking partial summary judgment as to his breach of contract claim regarding the retirement benefits due and owing him by Cogen Sklar and also as to Cogen Sklar’s counterclaims and defenses of novation and impossibility of performance.

Discussion

A. No Genuine Issue of Fact Exists As to Levey’s Entitlement to Retirement Benefits Under the Partnership Agreement

A motion for summary judgment is proper in those cases where the pleadings, depositions, answers to interrogatories, admissions, affidavits and all other matters of record demonstrate that there exists no genuine issue of material fact, and that, as a result, the moving party is entitled to judgment as a matter of law. Frederick v. Action Tire Co., 744 A.2d 762 (Pa. Super. 1999); Grossman v. Rosen, 424 Pa. Super. 463, 623 A.2d 1 (1993). In deciding whether summary judgment is warranted, the court must construe the facts in a light most favorable to the non-moving party, in this case Cogen Sklar, and resolve all doubts and reasonable inferences as to the existence of a genuine issue of material fact in that party’s favor. Telega v. Security Bureau Inc., 719 A.2d 372 (Pa. Super. 1998).

The issue at bar is whether Cogen Sklar is bound by the terms of the partnership agreement in light of its contention that it “suspended” the retirement and withdrawal provisions of the partnership agreement prior to Levey’s withdrawal from the firm. However, this court finds that no genuine issue of material fact exists and that the partnership agreement was still in effect at the time that Levey expressed his intent to withdraw from the partnership. Therefore, its terms are binding upon Cogen Sklar in connection with the retirement benefits due to Levey.

On September 27, 2000, Levey effectively expressed his intent to leave Cogen Sklar at the end of the fiscal year, either by retiring or withdrawing from the partnership, when the retirement and withdrawal provisions of the partnership agreement were still in effect. On that date, Levey submitted a letter noticing his intent to withdraw from the partnership “prior to any alternation of the partnership agreement.” (PI. mem. at exhibit K.) In his letter, he also stated “[i]f no such alteration, amendment or change occurs prior to March 31,2001, my withdrawal will be effective at the end of the partnership’s fiscal year, March 31, 2001 or same may be deemed my mandatory retirement at such time.” Id.

The testimony of record fails to raise a genuine issue of material fact as to whether Levey’s notice was received after the partners’ execution of the consent. The facts clearly demonstrate that the partners did not formally suspend the retirement and withdrawal benefits of the partnership agreement until September 29, 2000, when the consent was executed, two days after Levey provided notice. The partnership agreement is clear that “[n]o amendment shall change the rights or benefits of any partner deceased, retired or withdrawn prior to the date of the amendment.” (PI. mem., exhibit B, ¶29.) Thus, having exercised his rights to withdraw, prior to any purported suspension, Levey is entitled to benefits as calculated under partnership agreement. It is of no consequence that his withdrawal was not effective until the end of the fiscal year; rather, it is the notice that is determinative here.

However, this court does find that a genuine issue of material fact exists as to the amounts due and owing Levey under the partnership agreement, particularly with respect to the calculation of same. These issues must ultimately be determined at trial by the finder of fact. Accordingly, this case will proceed to trial on the issue of damages.

B. Cogen Sklar’s Affirmative Defenses Fail As a Matter of Law

Levey also moved for summary judgment as to Cogen Sklar’s affirmati ve defenses of novation and impossibility of performance, arguing that such claims fail as a matter of law. The court agrees.

1. Novation

Cogen Sldar argues that Levey is not entitled to retirement benefits under the partnership agreement by virtue of a novation. (Def. am. new matter ¶5.) However, this purported defense is devoid of both factual and legal support and fails as a matter of law.

A novation may only be found where the evidence demonstrates: (1) the displacement and extinction of a valid contract; (2) the substitution for it of a valid new contract; (3) sufficient legal consideration for the new contract; and (4) the consent of the parties. Melat v. Melat, 411 Pa. Super. 647, 602 A.2d 380 (1992); Buttonwood Farms Inc. v. Carson, 329 Pa. Super. 312, 317, 478 A.2d 484, 486 (1984). The party asserting the defense of novation has the burden of proving that the parties intended to discharge the earlier contract, in this case the partnership agreement. Id. Even viewing the facts in a light most favorable to Cogen Sldar, the evidence presented does not support the finding of a novation.

First, there has been no evidence presented that the partners came to an agreement or common understanding as to the terms of a new agreement to replace the retirement and withdrawal provisions of the partnership agreement before Levey gave his notice, nor is there evidence of any consideration given in connection with a new agreement. Moreover, while the facts demonstrate that the partners of Cogen Sklar may have modified certain provisions of the partnership agreement in 1998, no modification of the retirement and withdrawal provisions was effectuated (if at all) until on or about May 9,2002. (Def. mem. exhibit L.) A modification does not displace a prior valid contract; rather, the new contract acts as a substitute for the original contract, but only to the extent that it alters it. Knight v. Gulf Refining Co., 311 Pa. 357, 360, 166 A. 880, 881 (1933). Thus, the retirement and withdrawal provisions of the partnership agreement were still in effect in September 2000, when Levey gave his notice that he intended to leave the firm.

Accordingly, Cogen Sklar’s affirmative defense of novation fails as a matter of law.

2. Impossibility

Cogen Sklar has also asserted the affirmative defense of impossibility of performance, arguing that it cannot afford to pay Levey his retirement benefits and that its younger partners will leave the firm if it is required to do so. (Am. new matter ¶6.) However, this affirmative defense likewise fails as a matter of law.

The defense of legal impossibility is defined in section 261 of the Restatement (Second) of Contracts:

“Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event, the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate to the contrary.” Restatement (Second) of Contracts §261; Luber v. Luber, 418 Pa. Super. 542, 546, 614 A.2d 771, 773 (1992); Craig Coal Mining Co. v. Romani, 355 Pa. Super. 296, 513 A.2d 437 (1986).

Thus, in order for a discharge to occur under this theory, there must be the occurrence of a supervening event that was not contemplated by the parties. Cogen Sklar has made no such showing here.

Moreover, Cogen Sklar maintains that its financial inability to pay the retirement benefits renders it impossible to perform under the partnership agreement. However this argument betrays a misunderstanding of the concept of legal impossibility. It is well-settled that the financial inability of one of the parties to complete its obligations under a contract will not effect a discharge under the defense of impossibility. Restatement (Second) of Contracts §261, cmts. b, e; Luber, 418 Pa. Super, at 546, 614 A.2d at 773; Dorn v. Stanhope Steel Inc., 368 Pa. Super. 557, 534 A.2d 798 (1987) (theory of legal impossibility is based on an objective standard and will not apply if a performance remains practicable but is merely beyond a particular party’s capacity to render it).

Cogen Sklar does not assert that performance itself under the partnership agreement is impossible, rather it argues that, due to other financial obligations, it is unable to perform. However, under the existing law of this Commonwealth, a party generally assumes the risk of his own inability to perform its contractual duties. Dorn, at 588, 534 A.2d at 813; Restatement (Second) of Contracts §261, cmt. e. As Cogen Sklar’s asserted defense merely indicates an alleged financial inability to perform their duties under the partnership agreement, it does not rise to the level of legal impossibility and fails as a matter of law.

C. Cogen Sklar’s Counterclaims

Cogen Sklar has also brought counterclaims against Levey for: (1) tortious interference with contractual relations; (2) breach of contract; (3) breach of fiduciary duty; and (4) misappropriation of trade secrets. (Id. at exhibit D.) Specifically, Cogen Sklar asserts that Levey wrongfully solicited clients, wrongfully removed proprietary customer information from Cogen Sklar, refused to bill clients for work done while employed by Cogen Sklar, and failed to properly transition his clients, causing the loss of revenue and clients to Cogen Sklar. Id. Levey has moved for summary judgment as to each count. Based on the facts of record and reviewing the evidence in a light most favorable to Cogen Sklar, this court finds that Cogen Sklar has failed to present any evidence of wrongful conduct by Levey in connection with its claims against him for tortious interference with contractual relations (Count I), breach of fiduciary duty (Count III) and misappropriation of trade secrets (Count IV). These claims are wholy unsupported by the facts of record and fail as a matter of law due to the absence of any genuine issue of material fact.

As respects Cogen Sklar’s breach of contract claim, this court finds that a material fact exists with respect to the amounts due and owing Cogen Sklar by Levey in connection with certain work performed by Levey following his departure for the firm. Accordingly, Cogen Sklar’s breach of contract claim will remain part of this litigation and any amounts determined to be due and owing to Cogen Sklar by Levey pursuant to cJ[15.B(iii) of the partnership agreement will be offset from the amount of retirement benefits determined to be due and owing Levey. This issue must also be determined at trial by the finder of fact.

Conclusion

For the above-stated reasons, this court finds as follows:

(1) Plaintiff’s motion for summary judgment as to Count I of the complaint (breach of contract) is granted in part; trial will proceed as to damages only;

(2) Plaintiff’s motion for summary judgment as to defendant’s affirmative defenses of novation and impossibility is granted;

(3) Plaintiff’s motion for summary judgment as to Count I (tortious interference), Count III (breach of fiduciary duty) and Count IV (misappropriation of trade secrets) of defendant’s counterclaim is granted; and

(4) Plaintiff’s motion for summary judgment as to Count II of defendant’s counterclaim (breach of contract) is denied.

This case will proceed to trial on the remaining claims, as well for the assessment of damages with respect to Count I of the complaint.

This court will enter a contemporaneous order consistent with this opinion.

ORDER

And now, June 20, 2003, upon consideration of the motion for partial summary judgment of plaintiff Marvin A. Levey, all responses in opposition, the respective memoranda, all matters of record, and in accordance with the contemporaneous memorandum opinion, it hereby is ordered and decreed as follows:

(1) Plaintiff’s motion as to Count I of the complaint (breach of contract) is granted in part; trial will proceed as to damages only;

(2) Plaintiff’s motion as to defendant’s affirmative defenses of novation and impossibility is granted;

(3) Plaintiff’s motion as to Count I (tortious interference), Count III (breach of fiduciary duty), and Count IV (misappropriation of trade secrets) of defendant’s counterclaim is granted; and

(4) Plaintiff’s motion as to Count II of defendant’s counterclaim (breach of contract) is denied.

This case will proceed to trial on the remaining claims, as well for the assessment of damages with respect to Count I of the complaint.

      . Pursuant to the partnership agreement, a partner is permitted to withdraw from the partnership prior to mandatory retirement age. (PI. mem. exhibit B, §16.) If a partner withdraws before retirement age, his benefits are reduced, inter alia, in an amount related to that partner’s age. Id.

      . This court also finds that no novation occurred here. This issue is fully discussed in section B.l, infra.

      . In light of Levey’s age at the time he provided his notice, this court finds no demonstrable difference between whether Levey was considered to be retired or withdrawn from the partnership under the terms of the partnership agreement.

      . This court finds that Cogen Sklax’s argument that the suspension was effective at the September 25, 2000 partnership is belied by the facts of record, particularly the testimony of various partners of Cogen Sklar.

      . Morever, Levey does not contest that such amounts are due and owing. (PI. mem. at 30.)


author: SOLOMON, J.,

text:
    Labash v. Lobash

      Gary Frankhouser, for plaintiff.

      Phyllis Jin, for defendant.
    June 10, 2003
   SOLOMON, J.,

FINDINGS OF FACT

(1) Joseph Labash, the grandfather of the plaintiff, Joseph M. Labash, married Mary Labash, a/k/a Mary Lobash, on January 13, 1908.

(2) The family surname “Labash” and the family surname “Lobash” were each used by various family members and each, at times, refer to the same family member.

(3) There were two children bom of this marriage, Anna Guerrini and Mary Zidack.

(4) In 1929, at no. 56 December term 1929, in the Office of the Prothonotary of Fayette County, Joseph Labash filed an action in divorce against Mary Labash, a/k/a Mary Lobash; however, no divorce was ever granted.

(5) Some time prior to December 1, 1933, Joseph Labash began living with Mary Blasek, who then went by the name of Mary Labash, hereinafter referred to as Mary Labash II.

(6) Joseph Labash and Mary Labash II, held themselves out to the world as husband and wife.

(7) There were three children born of this relationship, the first being Andrew M. Labash, who was bom on December 1, 1933, Joseph J. Labash, and Catherine Labash.

(8) On October 25, 1948, Joseph Labash and Mary Labash II, acquired the real estate at issue in this case, a tract of land consisting of 109.116 acres, more or less, situate in Redstone Township and Menallen Township, Fayette County, Pennsylvania, and recorded in the office of the Recorder of Deeds of Fayette County, in deed book volume 665, page 168.

(9) Although Joseph Labash and Mary Labash II, took title as “Joseph Labash and Mary Labash, his wife,” they actually took title as tenants in common since Joseph Labash was still married to Mary Labash, a/k/a Mary Lobash, on October 25, 1948.

(10) Mary Labash, a/k/a Mary Lobash, died on June 9, 1956.

(11) After the death of Mary Labash, a/k/a Mary Lobash, Joseph Labash and Mary Labash II, held themselves out to friends, family and children, and to the world, as husband and wife, thereby causing to come into existence a valid common-law marriage.

(12) Joseph Labash died on September 27, 1959, intestate, leaving his undivided 1/2 interest in the subject premises to his surviving heirs, Mary Labash II, Anna Guerrini, Mary Zidack, Andrew M. Labash, Joseph J. Labash and Catherine Labash, each of whom acquired an undivided 1/12 interest in the subject premises by right of descent.

(13) Although, following the death of Joseph Labash, Mary Labash II treated the subject premises as hers, as the surviving tenant by the entireties. Her actual interest was her undivided 1/2 interest, as the surviving tenant in common, together with an undivided 1/12 interest as an heir to Joseph Labash, or a total of an undivided 7/12 interest.

(14) By deed dated June 22, 1960, Mary Labash II purportedly conveyed the subject premises to her son, Andrew M. Labash and Shirley June Labash, his wife. In actuality, she conveyed her undivided 7/12 interest. This deed is recorded in deed book volume 932, page 546.

(15) Thereafter, by deed dated August 20, 1968, and recorded in deed book volume 1064, page 784, Mary Labash II conveyed to Andrew M. Labash, her son, the certain parcels which had been reserved and excepted in the deed of June 22, 1960.

(16) In that same year, on December 9,1968, Andrew M. Labash purportedly conveyed to Mary Labash II the subject premises, with a reservation, which deed is of record in deed book volume 1070, page 264. However, all he could convey was the undivided 7/12 interest previously conveyed to him by Mary Labash II, together with his undivided 1/12 interest which he had inherited from Joseph Labash, his father, or a total of an undivided 8/12 interest.

(17) At the time of the deed of December 9, 1968, Andrew M. Labash was divorced from Shirley June Labash and had previously received any interest which she may have had in the subject premises as part of the divorce settlement.

(18) Mary Labash II died on December 5,1977, intestate, leaving to survive her Andrew M. Labash, Joseph J. Labash and Catherine Labash, her children, each of whom acquired an undivided 2/9 interest in the subject premises by right of descent.

(19) Upon the death of Mary Labash II, title in the subject premises was vested as follows:

Anna Guerrini — an undivided 3/36 interest
Mary Zidack — an undivided 3/36 interest
Andrew M. Labash — an undivided 8/36 interest
Joseph J. Labash — an undivided 11/36 interest
Catherine Labash — an undivided 11/36 interest
Total — 100%

(20) By deed dated March 5, 1986, and recorded in record book 145, page 25, Andrew M. Labash, Joseph J. Labash and Catherine Labash conveyed their respective interests in the subject premises to Joseph L. Labash and JoAnn Labash, his wife, vesting in them Andrew M. Labash’s undivided 8/36 interest, Joseph J. Labash’s undivided 11/36 interest, and Catherine Labash’s undivided 11/36 interest, or a total of 30/36 interest.

(21) Six days later, by deed dated March 11, 1986, and recorded in record book 145, page 29, Joseph L. Labash and JoAnn Labash conveyed their interest in the subject premises to Joseph M. Labash, the plaintiff in this case, and Tamara Labash, his wife.

(22) Later that year, Andrew M. Lobash, a/k/a Andrew M. Labash, and Linda A. Lobash, his wife, the defendant in this case, and Catherine Labash, acquired the interests of Anna Guerrini and Mary Zidack in the subject premises by the following indentures:

“Indenture dated August 14, 1986, and recorded in record book 187, page 334.
“Indenture dated August 12, 1986, and recorded in record book 186, page 59.”
(23) Following the conveyances in 1986, the interests of the parties in the subject premises were, and remain, as follows:
Joseph M. Labash — an undivided 30/36 interest (or 10/12)
Andrew M. Labash — - an undivided 3/36 interest and Linda A. Lobash (or 1/12)
Catherine Labash — an undivided 3/36 interest (or 1/121
Total — 100%

(24) The indentures from Anna Guerrini and Mary Zidack to Andrew M. Lobash, a/k/a Andrew M. Labash, and Linda A. Lobash, the defendant, his wife, and Catherine Labash, transferred interests that were lawfully vested in Anna Guerrini and Mary Zidack by right of descent from Joseph Labash, their father.

(25) The interest vested in Andrew M. Labash following the death of Mary Labash II, his mother, was not marital property. Any claim by Linda A. Lobash, the defendant, with regard to this interest, is under the Divorce Code and would relate to any increase in value.

DISCUSSION

This case involves a factual scenario that would be of considerable interest to a law school class studying real property. Joseph Labash filed a divorce against his wife of 21 years, Mary, in 1929. Two children, Anna Guerrini and Mary Zidack, had been born of this marriage. After an answer to the complaint was filed by Mary, nothing further transpired with regard to the divorce.

Soon thereafter, Joseph Labash took up residence with a second Mary, and they held themselves out to the world as husband and wife. Three children were bom of this relationship between Joseph Labash and the second Mary Labash, namely Andrew M. Labash, bom on December 1, 1933, Joseph J. Labash and Catherine Labash.

On October 25, 1948, Joseph Labash and the second Mary Labash acquired a tract of land consisting of 109.116 acres, more or less, as more fully set forth in deed book volume 665, page 168. Although the grantee clause lists Joseph Labash and Mary Labash as husband and wife, on that date, Joseph Labash was still married to the first Mary. Therefore, by law, Joseph Labash and the second Mary took title as tenants in common and not as tenants by the entireties.

Seven years later, on June 9, 1956, the first Mary, the wife of Joseph Labash, died. Following her death, Joseph Labash and the second Mary continued to hold themselves out to the world as husband and wife. Since the death of Joseph Labash’s wife Mary removed any impediment to Joseph Labash and the second Mary entering into a common-law marriage, the overt actions of Joseph Labash and the second Mary clearly demonstrate that a valid common-law marriage had come into existence. Thus, at the time of the death of Joseph Labash on September 27,1959, the second Mary was his common-law wife.

When Joseph Labash died, he died intestate and had an undivided 1/2 interest in the subject tract of land. This interest passed equally to his five surviving children and his second wife, Mary. Hence, each obtained, by right of descent, an undivided 1/12 interest in the land, with his wife, Mary, as a tenant in common, then owning an undivided 7/12 interest.

Thereafter, as more fully set forth in the findings of fact, there were several deeds of conveyance between Mary, the second wife of Joseph Labash, and Andrew M. Labash, her son, made prior to her death on December 5,1977. When Mary died, intestate, she had an undivided 2/3 interest in the premises, which interest vested in her three children, Andrew M. Labash, Joseph J. Labash and Catherine Labash, by right of descent. Thus, at that time, title in the subject premises was as follows: Anna Guerrini, an undivided 3/36 interest; Mary Zidack, an undivided 3/36 interest; Andrew M. Labash, an undivided 8/36 interest; Joseph J. Labash, an undivided 11/ 36 interest; and Catherine Labash, an undivided 11/36 interest. Although Andrew M. Labash was married to Linda A. Lobash, the defendant, she acquired no interest in the subject premises at that time, only the right to make a claim for any increase in value of her husband’s undivided interest.

The next transactions occurred in 1986. First, on March 5, 1986, Andrew M. Labash, Joseph J. Labash and Catherine Labash conveyed their respective interests to Joseph L. Labash and JoAnn Labash, his wife, who, six days later, conveyed their interest to Joseph M. Labash, their son and the plaintiff herein, and his wife, Tamara Labash. Later that year, Andrew M. Labash and the defendant, his wife, together with Catherine Labash, acquired the interests of Anna Guerrini and Mary Zidack, by indentures dated August 14, 1986 and August 12, 1986, respectively.

Following the conveyances in 1986, title in the subject premises was vested as follows: Joseph M. Labash, the plaintiff, an undivided 30/36 (10/12) interest; Andrew M. Labash and Linda A. Lobash, the defendant, an undivided 3/36 (1/12) interest; and Catherine Labash, an undivided 3/36 (1/12) interest.

Although Andrew M. Labash and Linda A. Lobash, the defendant, have since divorced, marital distribution has not yet occurred, and that issue is not before us. What is at issue before us is what, if any, interest Anna Guerrini and Mary Zidack had in this property prior to their deeds to Andrew M. Labash and Linda A. Lobash, the defendant, and Catherine Labash. As set forth, supra, each, as an heir of Joseph Labash, had an undivided 1/12 interest in the realty, and each conveyed their interests in 1986 to Andrew M. Labash and Linda A. Lobash, the defendant, his wife, and to Catherine Labash.

Wherefore, we make the following:

CONCLUSIONS OF LAW

(1) Joseph Labash and Mary Labash acquired title to the real estate at issue as tenants in common.

(2) Joseph Labash and Mary Labash entered into a valid common-law marriage in 1956.

(3) Upon the death of Joseph Labash in 1959, his five surviving children, Anna Guerrini, Mary Zidack, Andrew M. Labash, Joseph J. Labash and Catherine Labash, and his wife, Mary, each acquired an undivided 1/12 interest in the real estate at issue.

(4) Anna Guerrini and Mary Zidack divested themselves of their interests by indentures in 1986, to Andrew M. Labash and the defendant, Linda A. Lobash, his wife, and to Catherine Labash.

(5) Andrew M. Labash and the defendant, Linda A. Lobash, hold an undivided 1/12 interest in the subject premises as tenants in common.

ORDER

And now, June 10, 2003, after bench trial, we find in favor of the defendant and against the plaintiff consistent with the foregoing findings of fact, discussion and conclusions of law.