author: WETTICK, J.,

text:
    Miller v. Nationwide Mutual Insurance Co.

      C.P. of Allegheny County,
    no. GD00-019235.

      Robert J. Donahoe, for plaintiff.

      Maury D. Nusbaum, for defendant.

      April 16, 2001
   WETTICK, J.,

Plaintiff (petitioner) was a passenger who was injured in an automobile accident allegedly caused by an uninsured driver. There is a pending statutory arbitration proceeding to consider petitioner’s uninsured motorist claim against the insurance company that issued the “first priority” insurance policy. The subject of this opinion and order of court is a petition to compel the insurance company, which issued the “second priority” insurance policy, to arbitrate petitioner’s uninsured motorist claim against this insurance company. If the petition is granted, petitioner will seek to convince the arbitrators to consider his claim against the insurance company that issued the “second priority” insurance policy at the same arbitration hearing at which petitioner’s claim for uninsured motorist benefits against the “first priority” insurance policy is being considered. The “second priority” insurance company contends that I must deny the petition because petitioner does not have any claim to arbitrate with it as long as his claim against the “first priority” insurance company is pending.

Petitioner was a passenger in a motor vehicle operated by Ms. Kleist. The Kleist vehicle was struck by a motor vehicle operated by Mr. Saunders. Mr. Saunders was an uninsured motorist.

The Kleist vehicle was insured by State Farm. The policy limits were $25,000/$50,000.

At the time of the accident, petitioner resided with his mother. She was insured under a motor vehicle policy issued by Nationwide, which provided uninsured motorist coverage in the amount of $25,000/$50,000.

Priority of recovery is governed by the following provision of the Motor Vehicle Financial Responsibility Law (75 Pa.C.S. §1733):

“Section 1733. Priority of recovery
“(a) General rule — Where multiple policies apply, payment shall be made in the following order of priority:
“(1) A policy covering a motor vehicle occupied by the injured person at the time of the accident.
“(2) A policy covering a motor vehicle not involved in the accident with respect to which the injured person is an insured.”

Petitioner claims that his injuries are the result of the negligence of an uninsured motorist, and that his damages will exceed $25,000. Under section 1733(a)(1), State Farm is responsible for the initial $25,000 that petitioner may recover. Under section 1733(a)(2), Nationwide is responsible for an additional $25,000 if petitioner’s damages, caused by the negligence of the uninsured motorist, exceed $25,000.

Both insurance policies provide for disagreements regarding entitlement to uninsured coverage to be submitted to statutory arbitration. The Nationwide policy reads as follows:

“Arbitration
“If we and the insured disagree about the right to recover damages, or the amount of such damages:
“(1) After written demand for arbitration by either party, each will select a competent arbitrator. The two so selected will select a third.
“(2) If the third arbitrator is not agreed upon within 30 days, the insured or we may request a judge of court of record to name one. The court must be in the county and state where arbitration is pending.
“(3) Each party will pay its chosen arbitrator. Each will pay half of all other expenses.
“(4) Arbitration shall be conducted in accordance with the provisions of the Pennsylvania Arbitration Act of 1927.
“(5) Unless the insured and we agree otherwise, arbitration will take place in the county and state where the insured lives. The insured will submit to examination under oath as often as reasonably requested by us. The insured must grant us authority, at our request, to obtain copies of age and medical records. The arbitrators will resolve the issues. Questions in dispute will be decided when two arbitrators agree.
“(6) Any demand for arbitration must be made within two years after the date of the accident.” Nationwide’s Century II auto policy at 15-16.

Petitioner and State Farm have agreed to proceed with arbitration. Petitioner has asked Nationwide to arbitrate petitioner’s uninsured motorist claim for the additional $25,000, in order that petitioner’s uninsured motorist claims against State Farm and Nationwide can be resolved at one hearing. Nationwide refuses to proceed with arbitration while petitioner’s claim against State Farm is pending. It is Nationwide’s position that it is not required to incur any litigation expenses so long as there is a possibility that the arbitrators in the State Farm arbitration will find that any damages caused by the negligence of the uninsured motorist do not exceed $25,000. Nationwide argues that petitioner does not have a claim to arbitrate against Nationwide so long as there is a dispute between petitioner and State Farm over whether the State Farm policy is sufficient to fully compensate petitioner.

It is petitioner’s position that no provision within the Motor Vehicle Financial Responsibility Law bars a consolidated arbitration hearing. Consequently, I should compel arbitration in order that all claims may be resolved at a single place and time.

Under 42 Pa.C.S. §7304(a), a court shall order the parties to proceed to arbitration on application to the court to compel arbitration made by a party showing an agreement to arbitrate. I find that the agreement to arbitrate set forth supra at 536-37 of this opinion covers the petitioner’s uninsured motorist claim against Nationwide.

The provisions in the insurance agreement governing arbitration expressly provide for arbitration whenever the person seeking the uninsured motorist benefits and the insured “disagree about the right to recover damages, or the amount of such damages.” In the present case, petitioner contends that the negligence of an uninsured motorist caused the accident, and that his damages exceed $25,000. Nationwide’s responses to the demand for arbitration — petitioner does not have a cause of action until his underlying claim with State Farm is resolved and petitioner’s claim may not exceed the $25,000 limits of the State Farm policy — are defenses to petitioner’s claim against Nationwide. This dispute between petitioner and Nationwide involves a disagreement over the right to recover damages at this time— this is an issue that is covered by Nationwide’s agreement to arbitrate any disagreement “about the right to recover damages” or “the amount of such damages.”

While there may be merit to Nationwide’s position that petitioner must initially pursue his claims against State Farm, it is for the arbitrators, and not the courts, to decide whether petitioner’s uninsured motorist claim against Nationwide should be heard at the same time as his claim against State Farm, or whether the claim against State Farm should be resolved before petitioner’s claim against Nationwide is heard.

In Snyder v. Nationwide Mutual Insurance Co., 373 Pa. Super. 294, 541 A.2d 19 (1988), the injured parties, after settling for the policy limits with the liability carrier for the owner of the vehicle, filed a civil action against the driver who was insured by a Nationwide excess liability policy. The injured persons were also named insureds on a policy issued by Nationwide, which provided for underinsured coverage. The Nationwide policy contained an agreement to arbitrate whenever the insurer and the insured “ ‘do not agree about the insured’s right to recover damages or the amount of damages.’ ” Id. at 295, 541 A.2d at 19.

The injured parties filed a petition to compel arbitration. The trial court ruled that an application to compel arbitration was premature in the absence of a verdict in the pending court case awarding an amount in excess of the negligent party’s liability insurance coverage, a settlement in the amount of the policy limits, or an agreement between the parties to the court action that the claim will exceed the limits of the tort-feasor’s liability coverage. The Superior Court reversed. It held that judicial inquiry is limited to determining whether there is an agreement to arbitrate and whether the current dispute comes within the ambit of the arbitration agreement. Nothing in the insurance policy limited arbitration to a time when all third party actions had been resolved in the courts. Thus, “[t]he insureds’ right to recover damages and the amount of these damages, which established whether a payment of underinsured benefits is appropriate, is, under the language of the policy, properly decided before an arbitration panel.” Id. at 298, 541 A.2d at 20.

In Rocca v. Pennsylvania General Insurance Co., 358 Pa. Super. 67, 516 A.2d 772 (1986), the trial court denied a petition to compel arbitration on the ground that the petition was premature; the court ruled that the insurance policy governing underinsured benefits required the insured to exhaust her claims against the insured driver of the vehicle in which she was a passenger. The Pennsylvania Superior Court reversed, stating that the agreement to arbitrate had been activated because the insurer and the insured do not agree as to whether the insured is legally entitled to recover damages from the insurer or as to the amount of damages. Id. at 70, 516 A.2d at 774. The Superior Court ruled that the trial court should have ordered the parties to proceed with arbitration, because it is for the arbitrators, not the courts, to decide whether to abate the right to obtain damages until the underlying claim has been pursued.

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

ORDER

On April 16, 2001, it is hereby ordered that the petition to compel arbitration is granted and Nationwide Mutual Insurance Company is ordered to appoint an arbitrator in accordance with its insurance policy.

      . The Nationwide policy states that “We will pay compensatory damages as a result of bodily injury suffered by you or a relative and due by law from the owner or driver of an uninsured motor vehicle.” Nationwide’s Century II auto policy at 13.

      . Petitioner is not contending that both insurance companies must select the same arbitrators. Petitioner seeks a single hearing even if there are different arbitrators.


source: Caselaw Access Project

author: BLACK, J.,

license: Public Domain

text:
    Zoppi v. Seok

      C.P. of Lehigh County,
    no. 96-CV-723V.

      Mark H. Scoblionko, for plaintiffs.

      Richard T. Curley, for defendant Seok.

      Edward Wertman, for defendant Cedar Crest Emergicenter.
    May 2, 2001
   BLACK, J.,

This medical malpractice case is before the court on plaintiffs’ motion for post-trial relief following a jury verdict in favor of defendants. The jury found that defendants were not negligent, and as a result, did not reach the questions regarding causation and damages on the special verdict slip. The special verdict was molded into a verdict for defendants.

In their motion for post-trial relief plaintiffs seek a new trial on two grounds. First, they contend that the trial court erred in instructing the jury that the individual defendant, Woun Seok D.O., was to be held to the standard of care of a family physician. Plaintiffs claim that Dr. Seok should have been required to meet the standard of care of a specialist in emergency medicine. Second, plaintiffs claim that the court erred in overruling plaintiffs’ objection to testimony by Marvin Steinberg M.D., that it is not possible to know whether plaintiff Michael P. Zoppi’s hip replacement could have been avoided if he had been treated earlier. For the reasons stated below, I have concluded that plaintiffs’ contentions are without merit. Accordingly, the motion for post-trial relief is denied.

FACTUAL BACKGROUND

In 1995, Dr. Seok was a board-certified family practitioner in his second year of practice. He was employed by the defendant Cedar Crest Emergicenter (CCE), a corporation wholly owned by David Shingles D.O. CCE is a free-standing urgent care facility that treats patients on a walk-in basis. It has extended hours, and provides care for routine emergencies and for other problems generally handled by a family practitioner. It services those individuals who do not have a family doctor or whose family doctor is unavailable when care is needed. In 1995, CCE did not employ any specialists in emergency care on its medical staff. Patients with critical emergencies were and still are referred to the Lehigh Valley Hospital emergency room, approximately a half-mile away.

On Friday, July 21,1995, Mr. Zoppi presented to CCE with pain in his left groin and side area. He was seen by Dr. Seok, and gave a history of having moved furniture the previous day. Dr. Seok examined Mr. Zoppi and noted no swelling or redness. Mr. Zoppi had a mild temperature of 99.9 degrees. Dr. Seok tentatively diagnosed Mr. Zoppi with a strain and sprain of the left adductor muscle, for which he prescribed pain and anti-inflammatory medication. He instructed Mr. Zoppi to return in three days if his condition worsened or if there was no improvement.

On Monday, July 24, 1995, three days later, with his symptoms increasing, Mr. Zoppi returned to CCE and was again examined by Dr. Seok. Dr. Seok noted severe tenderness and a greatly reduced range of motion of Mr. Zoppi’s left adductor muscle. He ordered immediate x-rays of the left femur and hip area. The x-rays were normal. He also ordered an MRI of the left femur and thigh area to rule out a muscle tear. He changed Mr. Zoppi’s prescription to a stronger pain medication and continued with anti-inflammatory medication. He instructed Mr. Zoppi to return in three days for further evaluation after the MRI study was completed.

The next day, Tuesday, July 25,1995, Mr. Zoppi went to Providence Imaging for the MRI study. A preliminary interpretation was faxed to CCE by Providence on the same date at 4:03 p.m. This report identified a possible muscle tear, as Dr. Seok had suspected. The report also revealed the presence of fluid in Mr. Zoppi’s hip joint, but did not indicate whether this fluid was sterile or infected. Dr. Seok was not on duty in the office when this report arrived; he was also off on the following day, July 26, 1995.

On Wednesday, July 26,1995, Mr. Zoppi’s wife called CCE and told a staff member that her husband was complaining of excruciating pain and was getting no relief from the medication. In Dr. Seok’s absence, Dr. Shingles reviewed Mr. Zoppi’s chart, including the preliminary MRI report. Dr. Shingles then prescribed new pain medication, discontinued the anti-inflammatory agent that Dr. Seok had prescribed, and asked that Mr. Zoppi come in the following day.

On Thursday, July 27, 1995, Mr. Zoppi returned for further evaluation by Dr. Seok. In addition to prescribing more pain medication, Dr. Seok immediately referred Mr. Zoppi to an orthopedic specialist for a second opinion and follow-up care. Arrangements were made for Mr. Zoppi to see Leo Scarpino M.D., an orthopedic specialist, later that same day.

After examining Mr. Zoppi, Dr. Scarpino immediately referred him to Lehigh Valley Hospital for tests. Dr. Scarpino’s differential diagnosis included a hernia, a herniated spinal disc, kidney problems, a potential occult fracture, possible deep vein thrombosis, abdominal organ problems, and a potential muscle tear. Dr. Scarpino’s differential diagnosis did not include an infected hip joint, according to his office note and his dictated letter to Dr. Seok. After a series of consultative evaluations by various specialists at Lehigh Valley Hospital, Dr. Scarpino decided to take Mr. Zoppi to the operating room where he inserted a needle into his hip area to withdraw some of the fluid for testing. This procedure led him to diagnose a septic hip joint, for which he performed a debridement procedure.

Dr. Scarpino followed Mr. Zoppi after his discharge from the hospital, but later referred him to Dr. Sharkey at the Rothman Institute for treatment of the septic hip. Mr. Zoppi was treated conservatively for a time, but eventually had to undergo hip replacement surgery in August 1998.

Plaintiffs asserted two theories of negligence at trial. They claimed (1) that Dr. Seok deviated from the standard of care in failing to refer Mr. Zoppi to a specialist at an earlier stage; and (2) that a receptionist, nurse or other staff member of CCE was negligent in failing to take Mr. Zoppi’s temperature on his second visit or to record an alleged report from Mrs. Zoppi that Mr. Zoppi had fever and chills. The special verdict slip allowed for the jury to find negligence on either or both of these theories. The jury found that there was no negligence on the part of Dr. Seok and no negligence on the part of any other CCE employees.

THE CHARGE ON STANDARD OF CARE

The jury was instructed on the standard of care in accordance with Pennsylvania Suggested Standard Jury Instruction 10.03A. As part of this charge, the court stated:

“You’ve heard testimony that Dr. Seok is a family practitioner, not a specialist in the areas of orthopedics or infectious diseases or emergency care. A physician who does not hold himself out as a specialist in a particular field of medicine is not expected or required to possess the same knowledge and skill and exercise the same care as that which is usually had and exercised by specialists in those medical fields. For example, in this case, Dr. Seok is not expected or required to have the same knowledge or exercise the same degree of care that a specialist in the field of orthopedics or infectious diseases or emergency care would have. He’s expected to expected to [sic] exercise the same care as that which a family practitioner would be held to.”

Plaintiffs objected to this portion of the charge, claiming that Dr. Seok should have been held to the standard of a specialist in the field of emergency medicine. This objection was overruled, and I believe correctly so. The record does not support the imposition of a specialist’s standard of care on Dr. Seok.

According to Dr. Seok’s testimony, he practices family medicine at CCE. Like any family practitioner, he sees patients who present with routine emergencies. If a patient requests, he will continue with follow-up treatment so long as he believes the matter is within his competence. If a patient presents with a critical emergency, the patient will be referred to the emergency room at Lehigh Valley Hospital, a short distance away. Dr. Seok does not consider himself an “emergency room physician” and there is no evidence that he held himself out as such to Mr. Zoppi.

Mr. Zoppi had been treated previously at CCE and did not have any other family physician. When he experienced pain in his groin and thigh area on July 21,1995, he decided to return to CCE because they already had his medical records on file. He did not rely on any representation by CCE that its staff were specialists in emergency medicine.

Plaintiffs had the burden of producing expert testimony “to establish the recognized standard of medical care attributable to physicians under like circumstances.” Strain v. Ferroni, 405 Pa. Super. 349, 355, 592 A.2d 698, 701 (1991); see also, Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990); Joyce v. Boulevard Physical Therapy & Rehabilitation Center, P.C., 694 A.2d 648 (Pa. Super. 1997). In the absence of evidence that a physician has held himself out as a specialist in a given field, the physician cannot be held to the elevated standard applicable to specialists in that field.

In this case, plaintiffs claim to have met their burden through the testimony of Ira Mehlman M.D., who testified as an expert witness for plaintiffs by way of videotaped deposition. Dr. Mehlman runs an emergency department in a community hospital in the State of Maryland, and is board-certified in three fields — internal medicine, endocrinology, and emergency medicine. He answered affirmatively to these general questions:

“Q. (By plaintiffs’ counsel): Doctor, do you consider yourself familiar, as a general proposition, with the duties and responsibilities of an emergency physician in connection with patient care and management?
“A. Certainly.
“Q. Okay. Do you consider yourself familiar with the duties and responsibilities, as a general proposition, of an emergency medical physician in a- — what I’ll call an urgent care freestanding facility, such as Cedar Crest Emergicenter, the facility at issue in this case?
“A. Certainly.”

However, Dr. Mehlman had no first-hand knowledge of the operation of CCE or of Dr. Seok’s role in that organization. Nor was he asked to assume any facts hypothetically. Hence, there was no basis on which he could have found that Dr. Seok had held himself out as a specialist in emergency medicine, and Dr. Mehlman never explicitly testified that Dr. Seok had done so.

According to plaintiffs, however, the entire “thrust” of Dr. Mehlman’s testimony was that Dr. Seok held himself out as a specialist in emergency medicine. But although plaintiffs’ counsel appeared to assume that Dr. Seok was a specialist in some of his questions to Dr. Mehlman, Dr. Mehlman never specifically opined that Dr. Seok should be held to a specialist’s standard of care. An assumption in a question of counsel is not evidence, and there was no basis in the record for such an assumption.

Significantly, when plaintiffs’ counsel asked Dr. Mehlman whether Dr. Seok’s actions on July 27, 1995, were “in accordance with acceptable standards for an emergency medical doctor,” Dr. Mehlman gave an equivocal answer. Plaintiffs’ counsel then inquired with reference to a more general standard, asking whether Dr. Seok’s actions were “in accordance with minimum acceptable standards of medical practice?” To this question Dr. Mehlman responded, “My answer is, no....” Thus, the key question to Dr. Mehlman on the alleged deviation from the standard of care was phrased in terms of a non-specialist standard of care.

Plaintiffs argue that Dr. Seok impliedly held himself out as a specialist in emergency medicine by working at CCE. However, simply working at an urgent care or walk-in clinic such as CCE, where patients with critical emergencies are referred to a nearby hospital emergency room, does not require a physician to be a specialist in emergency medicine. The notion that every physician who works at a walk-in clinic holds himself out as a specialist in emergency medicine is without any basis in the record of this case.

It is common knowledge that family practitioners often provide emergency care for routine emergencies. This does not make them specialists in emergency medicine. Thus, there is no inconsistency in Dr. Seok’s position. His role at CCE in treating routine emergencies does not imply that he is holding himself out as a specialist in emergency medicine.

The second expert witness called by plaintiffs on the standard of care was Rob Roy MacGregor M.D., a board-certified specialist in infectious diseases. Dr. MacGregor also testified that Dr. Seok had deviated from the standard of care, but like Dr. Mehlman, he too did not state that Dr. Seok should be held to the standard of care of a specialist in emergency medicine. Thus, it would have been improper to charge the jury that Dr. Seok should be held to an elevated standard of care.

The application of a non-specialist standard of care does not immunize Dr. Seok from liability. A family practitioner must be capable of handling routine emergencies and must know when to refer an emergent condition to an appropriate specialist or to a hospital emergency room. In this case, plaintiffs argued that Dr. Seok’s delay of three days from July 24 to July 27, 1995, in referring Mr. Zoppi to Dr. Scarpino, the orthopedic specialist, was a deviation from the standard of care. That was the issue presented to the jury, which found that there was no deviation.

Plaintiffs refer to two exhibits offered at trial, plaintiffs’ trial exhibits 8 and 30, which they claim support their argument that Dr. Seok held himself out as a specialist. Plaintiffs’ trial exhibit 8 is a copy of the discharge instructions given to Mr. Zoppi by Dr. Seok. This contains a note at the top:

“Note: The treatment you have received in the Emergicenter is only emergency treatment and is not intended to be a substitute for complete medical care....”

This same exhibit contains the following legend at the bottom:

“I hereby acknowledge receipt of the instructions indicated above. I understand that I have had emergency treatment only and that I may be released before all of my medical problems are known or treated. . . .”

However, these discharge instructions are not inconsistent with Dr. Seok’s role as a family practitioner. As noted above, family practitioners often handle routine emergencies. The fact that they do so does not impose on them the elevated standard of care of a specialist in emergency medicine. Every physician who treats routine emergencies does not thereby become a specialist in emergency care. The discharge instructions also state that if the patient does not have a family doctor, he or she may make a follow-up appointment with CCE. This is precisely what Mr. Zoppi did. Not having a family doctor, he continued to follow up with Dr. Seok, who was acting in the same capacity as a family doctor.

Plaintiffs’ trial exhibit 30 is a print-out of the current CCE website. However, this was first published in October 1998, three years after the incident in question. Since then, CCE has added to its staff a board-certified specialist in emergency care. There is no evidence that any such promotional material was circulated to the general public or to the plaintiffs in 1995.

Moreover, although the website states that CCE provides “emergency medical care” and that “your emergencies are our emergencies,” the website also states clearly that CCE is referring to “routine medical emergencies.” The website states at page 2, “Of course, for critical emergencies, go directly to your local hospital emergency room.” And again on page 5, “Remember, in critical cases, go directly to your local hospital emergency room.”

The website does state:

“Cedar Crest Emergicenter physicians are emergency room experts — experienced and highly trained in all emergency medical techniques. Come here for the quick, caring treatment you need for sudden illness, household accidents, or routine medical emergencies. Of course, for critical emergencies, go directly to your local hospital emergency room.”

As noted above, this was first published in October 1998, at a time when there was at least one board-certified specialist in emergency care on the CCE staff. There is no evidence that any similar promotional material was disseminated to the general public or to Mr. or Mrs. Zoppi prior to 1998. Thus, the website does not support the proposition that Dr. Seok held himself out in 1995 as a specialist in emergency care.

Plaintiffs acknowledge that there is no case law that directly supports their position. They have directed the court’s attention to Tranor v. Bloomsburg Hospital, 60 F. Supp.2d 412 (M.D. Pa. 1999), in which a general practitioner was held liable for medical negligence in referring a patient to a specialist that the practitioner knew or should have known was incompetent. The Tranor case is inapposite. Plaintiffs have not claimed that Dr. Scarpino, to whom Dr. Seok referred them, was an incompetent specialist. Their claim is that Dr. Seok should have referred Mr. Zoppi to Dr. Scarpino sooner.

Plaintiffs also cite Pratt v. Stein, 298 Pa. Super. 92, 157, 444 A.2d 674, 708 (1982) (holding that a “resident authorized to practice his specialty on patients requiring and expecting the services of a specialist” would be judged against a specialist’s standard of care); and Jistarri v. Nappi, 378 Pa. Super. 583, 549 A.2d 210 (1988) (holding that where a resident was acting within his particular specialty, he or she would be measured by the standard of care applicable to that specialty). These cases likewise are not in point. There is no parallel between Dr. Seok’s role in this case and that of a resident acting within his particular specialty.

In the absence of any evidence that Dr. Seok should be held to the elevated standard of a specialist in emergency medicine, the jury charge on the standard of care was proper. Plaintiffs did not claim that Dr. Seok was negligent in referring Mr. Zoppi to Dr. Scarpino. Their claim was that Dr. Seok delayed too long in making this referral. That issue was fairly presented to the jury on proper instructions. The jury, which heard conflicting testimony from expert witnesses on both sides, concluded that Dr. Seok was not negligent.

THE OBJECTION TO DR. STEINBERG’S TESTIMONY

Marvin Steinberg M.D., a board-certified specialist in orthopedic surgery and director of the Joint Reconstruction Center at the Hospital of the University of Pennsylvania, testified for the defense. He stated, over objection, that there is no way of knowing whether Mr. Zoppi would have required a hip replacement even if an earlier diagnosis of his hip infection had been made. Plaintiffs contend that this testimony was irrelevant, since they were proceeding on an increased-risk-of-harm theory of causation.

Plaintiffs’ objection was overruled at trial, and I believe that this ruling was correct. However, even if in error, the error would have been harmless. The testimony related solely to the issue of causation, an issue that the jury never reached in this case. A special verdict slip was approved by counsel and utilized by the jury, separating out the issues of negligence, causation and damages. The jury found no negligence on the part of either defendant, and thus never reached the issues of causation or damages. Therefore, any error with regard to the testimony on causation was harmless and cannot be the basis for a new trial. See Foflygen v. Allegheny General Hospital, 723 A.2d 705, 708 (Pa. Super. 1999), appeal denied, 559 Pa. 705, 740 A.2d 233 (1999) (“Evidentiary rulings which did not affect the verdict will not provide a basis for disturbing the jury’s judgment.”).

Plaintiffs suggest that the jurors may have decided there was no negligence because they thought there was no causation, but this is sheer conjecture. There is no basis for concluding that the jury was confused and did not understand the verdict slip. The jury finding of no negligence was quite understandable in view of expert testimony on the defense side of the case, including the testimony of Dr. Steinberg, that the kind of septic hip developed by Mr. Zoppi is a very rare condition and difficult to diagnose. Dr. Steinberg testified that this condition is so uncommon that in his 35 to 40 years of practice he had seen only “one, two or three” such cases. If Dr. Steinberg with his vast experience in joint surgery had seen so few cases similar to Mr. Zoppi’s, the jury could easily have concluded that Dr. Seok, a family practitioner in his second year of practice, should not be faulted for failing to diagnose the condition.

Although any error in the causation evidence was clearly harmless, nevertheless, for the sake of completeness, I will address the specific objection made by plaintiffs’ counsel. Pennsylvania law recognizes that in some cases the causal link between medical negligence and injury to the plaintiff may be impossible to demonstrate to a reasonable degree of medical certainty. In such cases the law allows the plaintiff to proceed on the theory that the medical negligence increased the risk of harm and that the harm actually occurred. Under this increased-risk-of-harm theory, the jury still has to make a finding that the negligent act did in fact cause the harm. Evidence that the risk of harm was increased and that the harm did occur is sufficient to take the issue of causation to the jury, but it does not automatically establish causation. The jury must still balance the probabilities and come to a conclusion that the negligent act did in fact cause the harm alleged. See e.g., Poleri v. Salkind, 453 Pa. Super. 159, 169-70, 683 A.2d 649, 654 (1996), appeal denied, 548 Pa. 672, 698 A.2d 595 (1997) (“[Wjhere the testimony of the plaintiff’s expert establishes that the defendant’s failure to diagnose and treat an existing condition has increased the risk of harm, the question of whether that conduct caused the plaintiff’s ultimate injury requires a jury determination.”). Thus, the increased-risk-of-harm theory reduces the plaintiff’s burden of production, but it does not eliminate the plaintiff’s ultimate burden of persuasion. It allows the causation issue to go to the jury without the usual requirement of an expert opinion based on reasonable medical certainty, but the plaintiff must still persuade the jury that causation in fact is more probable than not.

In an effort to persuade the jury to balance the probabilities in favor of plaintiffs in this case, plaintiffs’ counsel elicited the following testimony from Dr. Scarpino, one of Mr. Zoppi’s treating physicians:

“Q. Doctor, are you able to express an opinion as to the likelihood that the hip would have been saved had he come under your care on let’s say July 24, 1995?
“A. That would have been three days earlier. There’s absolutely a significant chance that this patient’s hip would have been saved.”

Plaintiffs’ counsel did not object when counsel for one of the defendants cross-examined Dr. Scarpino as follows:

“Q. This patient from the time that he had an infection in his hip joint, he stood a risk of osteomyelitis?
“A. Yes.
“Q. And he would have required surgery?
“A. Yes.
“Q. And that osteomyelitis could very easily have led to the need for a hip replacement regardless, is that correct, sir?
“A. That is correct.”

In failing to object, plaintiffs’ counsel tacitly acknowledged the relevance of this information.

Plaintiffs’ counsel also sought to bolster their case on causation by eliciting testimony from Dr. Mehlman that Mr. Zoppi’s hip could have been saved if diagnosed by Dr. Seok earlier. It was in response to this testimony that Dr. Steinberg was questioned by Dr. Seok’s counsel as follows:

“Q: ... Dr. Mehlman criticizes the care rendered and has testified that if a septic hip had been caught early that Mr. Zoppi’s hip could have been saved. Is that a statement you would agree with, Dr. Steinberg?
“A: No I would not.
“Q: Why not?
“A: Because it’s just not a correct statement. We’ve been in many cases which an infection of a joint was diagnosed within a day or two and all appropriate treatments were rendered but despite that the joint was destroyed and went on to the joint replacement. . . .
“Q: Doctor, based upon your training, experience and expertise do you have an opinion whether the outcome of Mr. Zoppi’s medical condition, including the need of the hip replacement, would have been any different had his hip been aspirated prior to July 27th, 1995?
“A: I have an opinion.
“Q: Could you tell the jury?
“A: Yes, my opinion is one doesn’t know. Had it been treated earlier the results might have been better or they might have been exactly the same....
“Q: Do you have an opinion, doctor, whether any health care provider could say to a reasonable degree of medical certainty that the results would have been different?
“A: Yes I have an opinion.
“Q: Could you tell the jury your opinion?
“A: I don’t think any health care provider could state categorically whether the result would have been the same, better or worse under those circumstances.”

Plaintiffs’ counsel objected to this portion of Dr. Steinberg’s testimony on grounds of relevance. However, Dr. Steinberg’s testimony was proper rebuttal to the claims by plaintiffs’ experts that there was a likelihood of a causal connection between the alleged failure to diagnose and Mr. Zoppi’s hip replacement. Since the jury had to balance the probabilities and decide if in fact there was a causal connection, the likelihood of such a connection was a relevant factor for the jury to consider. The testimony from Dr. Scarpino, for example, that the alleged negligent act “absolutely” increased the chance of a hip replacement “significantly” would tend to establish a causal connection in the jury’s mind. On the other hand, if it is not likely that a causal connection exists and one can only speculate, this also would be a factor for the jury to consider. As Dr. Steinberg pointed out,

“Many cases [of septic hip] are diagnosed within a day or two and all appropriate treatments rendered and yet the joint is destroyed. One doesn’t know. If treated earlier the results might have been better or they might have been exactly the same.”

Had the jurors reached the issue of causation, it would have been their responsibility to consider all the evidence bearing on the likelihood that alleged medical negligence was in fact the cause of Mr. Zoppi’s hip replacement.

THE JURY INSTRUCTION ON CAUSATION

After oral argument, plaintiffs’ counsel submitted a letter to the court under date of January 29, 2001, challenging the jury instruction on causation in light of the recent decision of the Superior Court in Clementi v. Procacci, 762 A.2d 1086 (Pa. Super. 2000). However, plaintiffs did not assert this objection at trial or in their post-trial motions. Therefore, it cannot be the basis for a new trial. Harman ex rel. Harman v. Borah, 562 Pa. 455, 473-75, 756 A.2d 1116, 1126-27 (2000) (“[Pjarty waives an issue ... if the party fails both to preserve the issue with a timely and specific objection at trial and present it in post-trial motions. . . . Failure to raise a prompt objection is a valid reason for the trial court to deny a motion for a new trial.”).

Moreover, the flaw in the dementi charge justifying the award of a new trial was the trial court’s failure to charge the jury on the increased likelihood of harm as a basis for finding causation. In the instant case, the jury was specifically charged on increased risk of harm in accordance with Pennsylvania Suggested Jury Instructions 10.03B(b). In fact, this theory of causation was explained to the jury not once, but twice. Thus, the jury was charged:

“The harm that the plaintiffs’ claim was caused by the defendants’ negligent conduct was the hip replacement surgery and the subsequent problems that ensue as a result of that. The experts appear to be in agreement that no one can say with reasonable medical certainty that the hip replacement surgery would have been unnecessary if Dr. Seok had referred Mr. Zoppi to Dr. Scarpino on Monday, July 24, three days earlier than the actual referral. Nobody said that with reasonable medical certainty. But in these circumstances the law does not require reasonable medical certainty. That’s not the standard for proof of causation. If there is sufficient testimony to establish that the physician or medical provider failed to exercise reasonable care, that this failure increased the risk of physical harm to Mr. Zoppi, and that such harm did, in fact, occur, then you, the jury, must balance the probabilities and decide whether, in fact, the negligence of either or both defendants was a substantial factor in bringing about the harm. The plaintiffs have the burden of proof on this issue and I will elaborate a little more on that later.”

Later in the portion of the charge dealing with the burden of proof, plaintiffs’ theory of causation was repeated:

“Now, let me elaborate just a bit on the burden of proof as it relates to the issue of causation because this is a little complicated. As I said to you before, the law does not require proof of causation by reasonable medical certainty. If there is sufficient evidence to establish that a physician or medical provider failed to exercise reasonable care, that this failure increased the risk of physical harm to the plaintiff and that such harm did, in fact, occur, then you, the jury, are called upon to balance the probabilities and determine whether, in fact, the negligence of either or both defendants was a substantial factor in bringing about the harm to the plaintiffs. So, if after balancing the probabilities, after you go through this process, you are persuaded and conclude that the scale tips in favor of the plaintiffs on that issue of causation, then your verdict on that issue would be for the plaintiffs.
“On the other hand, should you conclude from the evidence that this is at best a 50/50 situation, that we just don’t know, that nobody knows whether it’s more or less likely that the hip replacement surgery was required as a result of any negligence on the part of the defendants, if that is the case, if we have a 50/50 situation, if the scale does not tilt in favor of the plaintiffs, then your finding must be for the defendants on the issue of causation.”

Thus, plaintiffs’ increased-risk-of-harm theory of causation was thoroughly explained to the jury at two points in the charge. Plaintiffs’ claim that the jury found defendants free of negligence because the jurors were confused by Dr. Steinberg’s testimony and the charge on causation is without substance.

For all the foregoing reasons, plaintiffs’ motion for post-trial relief is denied.

ORDER

Now, May 2, 2001, upon consideration of plaintiffs’ motion for post-trial relief and defendants’ responses thereto, after review of the parties’ briefs and oral argument, and for the reasons set forth in the accompanying opinion, it is ordered that said motion be and hereby is denied.

      . Plaintiffs’ counsel suggested at trial that Dr. Shingles had not reviewed the chart, but Dr. Shingles was not named as a co-defendant and there was no claim presented against CCE for any alleged acts of negligence on his part. Accordingly, plaintiffs did not argue to the jury and the court did not charge the jury on any theory of negligence on the part of Dr. Shingles.

      . N.T., 6/14/00 at 458-59.

      . Deposition of Ira Mehlman M.D., plaintiffs’ trial exhibit 19, at 15-16. (emphasis added)

      . Mehlman dep. at78-79.

      . Mehlman dep. at 79.

      . See deposition of Rob Roy MacGregor M.D., plaintiffs’ trial exhibit 25, at 33-34.

      . Deposition of Marvin Steinberg M.D., Cedar Crest trial exhibit 7, at44-50.

      . Steinberg dep. at 42-43.

      . Deposition of Leo Scarpino M.D., plaintiffs’ trial exhibit 15, at 81-82. (emphasis added)

      . Scarpino dep. at 127.

      . Mehlman dep. at 80.

      . Steinberg dep. at 44-50.

      . Plaintiffs’ counsel quoted this portion of Dr. Scarpino’s testimony to the jury in his closing argument. N.T., 4/14/01 at 400-401.

      . Steinberg dep. at 44-47.

      . N.T., 4/14/01 at 464-65.

      . N.T., 4/14/01 at 481-82.


author: NEALON, J.,

text:
    Loff v. Granville

      C.P. of Lackawanna County,
    no. 00-CV-6166.

      Lawrence J. Moran and James J. O’Connor, for plaintiff.

      Michael J. Domanish, for defendant Granville.

      James L. Beausoleil Jr. for defendant Kasa.
    April 25, 2001
   NEALON, J.,

Defendant, Cary Kasa, has filed preliminary objections in the nature of a demurrer to the averments by plaintiff, Brad Loff, regarding Kasa’s alleged duty of “extraordinary care,” responsibility to train and supervise defendant, Marie Helen Granville, concerning safe operation of a loaded shotgun, and legal obligation as a landowner. In the alternative, Kasa requests that Loff be required to file a more specific pleading pursuant to Pa.R.C.P. 1019(a). For the reasons set forth below, the demurrer will be granted as to the assertion of a heightened duty of extraordinary care, but denied in all other respects.

I. FACTUAL BACKGROUND

According to the allegations of the complaint, on November 9, 1999, Kasa provided Granville with a loaded Mossberg 500E, 410 gauge pump shotgun when she was present in Kasa’s trailer which was located in a wooded area in Archbald. Prior to that time, Granville had never received any training or instruction regarding the use of a weapon, nor had she ever operated a shotgun in her lifetime. Despite the fact that Kasa was aware of Granville’s unfamiliarity with the operation of firearms, he provided no instruction or guidance to Gran-ville at the time he furnished the loaded shotgun to her. (See plaintiff’s complaint, ¶¶4-8.)

After he supplied Granville with the loaded shotgun, Kasa exited the trailer and traveled to another site approximately 11/2 miles away. At that time, Loff and several of his friends were riding their all-terrain vehicles (ATVs) in the wooded areas of Archbald mountain. Upon discovering Loff and the other ATV riders in the vicinity of Kasa’s trailer, Granville confronted them with the loaded shotgun and ordered them to deactivate and dismount their ATVs. Notwithstanding the fact that Loff and his companions were unarmed, Granville pointed the loaded shotgun in Loff’s direction and recklessly discharged the weapon as he was alighting his ATV, thereby shooting him and causing serious personal injuries. (Id., ¶¶5, 9-16.)

In addition to his claims against Granville, Loff has advanced a negligence theory against Kasa in Count II of the complaint. Specifically, Loff avers that Kasa owed: (1) “a duty to use due care under the circumstances;” (2) “a duty not to place plaintiff Brad Loff at risk of harm;” (3) “a duty to use extraordinary care so that no harm would be visited upon others;” (4) “a duty to refrain from acting with reckless indifference..., wanton negligence or misconduct toward Brad Loff;” (5) “a duty to employ and utilize proper persons and instrumentalities;” (6) “a duty to appropriately supervise Marie Helen Granville in connection with [her] use of the loaded shotgun;” (7) “a duty to prevent the negligent, wanton and tortious conduct of Marie Helen Gran-ville;” (8) “a duty to have trained, instructed and assured the competency of Marie Helen Granville in the use, operation and safety of the loaded shotgun;” and (9) “a duty to exercise reasonable care so to control Marie Helen Granville.” (Id., ¶¶39-47.) Throughout the complaint, Loff commingles Kasa’s purported duty “to use due care” with his alleged duty “to use extraordinary care.” (Id., ffl48(a), (c).)

In his preliminary objections, Kasa demurs to Loff’s assertion of a duty to use “extraordinary care” on the grounds that such a heightened duty of care is not recognized in Pennsylvania. Kasa further objects to the viability of a legal duty to train and supervise Granville with regard to firearm usage and to the adequacy of Loff’s allegations concerning Kasa’s obligations as a landowner. Additionally, Kasa seeks greater specificity with respect to Loff’s contention that Kasa “provided” a loaded shotgun to Granville. Following the filing of legal briefs and the completion of oral argument on April 23, 2001, this matter was submitted for a decision.

E. DISCUSSION

(A) Standard of Review

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); Nazar v. Clark Distribution Systems, 46 D.&C.4th 28, 31 (Lacka. Co. 2000). The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. DeMary v. Latrobe Printing & Publishing Co., 762 A.2d 758, 761 (Pa. Super. 2000); Oven v. Pascucci, 46 D.&C.4th 506, 511 (Lacka. Cty. 2000). When considering the merits of preliminary objections, all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are regarded as true. Hess v. Gebhard & Co. Inc., 769 A.2d 1186, 1194 (Pa. Super. 2001). However, conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion need not be accepted as true. Milton S. Hershey Medical Center v. Commonwealth of Pennsylvania, CAT Fund, 763 A.2d 945, 948 n.5 (Pa. Super. 2000).

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, 768 A.2d 299, 301 (Pa. 2001). In that regard, the mere novelty of a claim does not require the grant of a demurrer. Denton v. Silver Stream Nursing & Rehabilitation Center, 739 A.2d 571, 575 (Pa. Super. 1999); Syslo v. Davis, 102 Lacka. Jur. 210, 212 (2000). If there is any doubt as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Constantino, supra; Fasula v. Hijazi, 44 D.&C.4th 553, 558 (Lacka. Cty. 1999).

(B) Duty of Extraordinary Care

Relying upon Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957), Loff argues that Pennsylvania law imposes a “duty of extraordinary care” on persons who handle or possess weapons. In Kuhns, the court remarked that “[a]ny loaded firearm, including a pistol, is a highly dangerous instrumentality and, since its possession or use is attended by extraordinary danger, any person having it in his possession or using it is bound to exercise extraordinary care.” Id. at 338, 135 A.2d at 401. This apparent pronouncement of a heightened standard of care for users of firearms remained the law in Pennsylvania for several decades. See Matulevich v. Matulevich, 345 Pa. Super. 507, 511, 498 A.2d 939, 941 (1985); Everette v. City of New Kensington, 262 Pa. Super. 28, 32, 396 A.2d 467, 469 (1978).

However, in Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995), the Supreme Court of Pennsylvania revisited the issue of an enhanced duty of care with respect to dangerous agencies. The Stewart court began its analysis “by reaffirming the principle that there is but one standard of care to be applied to negligence actions involving dangerous instrumentalities in this Commonwealth” and observed:

“The care required is always reasonable care. The standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act and is proportionate to it. The greater the danger, the greater the care which must be exercised....” Id. at 601, 654 A.2d at 537 (quoting Restatement (Second) of Torts §298 comment b (1965)). After reviewing its prior rulings governing highly dangerous activities, the court stated:
“We do not believe that these cases created a heightened or extraordinary standard of care above and beyond the standard of reasonable care for handling dangerous agencies. When we referred to a ‘higher degree of care’ in these cases, we were not creating a second tier of ‘extraordinary care’ over and above ordinary or reasonable care. Instead, we were simply recognizing the general principle that under the reasonable care standard, the level of care must be proportionate to the danger involved. Our use of the language ‘higher degree of care’ merely stated the common sense conclusion that the use of a dangerous agency would require the reasonably prudent person to exercise more care. In fact these cases rejected any formalistic higher standard of care in holding that ‘no absolute standard of care [could] be fixed by law.’
“Admittedly, this notion of a heightened level of ‘extraordinary care’ for the handling of dangerous agencies has crept into our jurisprudence, In Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957), this court considered the proper standard of care for negligence involving a handgun____we found that the possession of a loaded handgun placed upon the defendant the duty of, exercising not simply ordinary, but extraordinary care so that no harm might be visited upon others.’ Kuhns, 390 Pa. at 344, 135 A.2d at 403. This language in Kuhns on its face unfortunately suggests that this Commonwealth recognizes a separate standard of care, ‘extraordinary care,’ for dangerous instrumentalities above and beyond ‘ordinary care.’ We reject this suggestion.” Stewart, supra at 603, 654 A.2d at 538-39.

Consequently, contrary to Loff’s contention, Pennsylvania law does not currently recognize a distinct duty of “extraordinary care” in addition to the well established “reasonable care” standard which is measured by the degree of danger involved. See Stecyk v. Bell Helicopter Textron Inc., 1998 WL 42303, *5 (E.D. Pa. 1998) (“[i]n negligence actions involving dangerous instrumentalities, a party’s conduct is evaluated according to ‘the standard of reasonable care under the circumstances,’ i.e., ‘care in proportion to the danger involved in the act.’ ”). At the time of trial, Loff may argue that the level of reasonable care required of Kasa was commensurate with the degree of danger involved, to wit, that the use of a dangerous instrumentality obligates a reasonably prudent person to exercise greater care. However, in the interim, Loff’s assertion of an independent duty of extraordinary care will be stricken in light of Stewart.

(C) Duty To Train and Supervise

Kasa also demurs to Loff’s contention that Kasa had a duty to instruct Granville concerning the proper operation of firearms or to otherwise supervise her actions relative to the loaded shotgun. Pennsylvania has adopted the Restatement (Second) of Torts §308 (1965) which states that “it is negligent to permit a third person to use a thing . . . which is under the control of the actor if the actor knows or should know that such person intends or is likely to use the thing ... in such a manner as to create an unreasonable risk of harm.” Comment (b) to section 308 further provides that “[t]he rule applies ... if the actor knows that the third person intends to misuse it, or if the third person’s known character or the peculiar circumstances of the case are such as to give the actor good reason to believe that the third person may misuse it.” See Malloy v. Girard Bank, 292 Pa. Super. 34, 39, 436 A.2d 991, 993 (1981).

In Frey by Frey v. Smith, 454 Pa. Super. 242, 685 A.2d 169 (1996), alloc. denied, 549 Pa. 701, 700 A.2d 441 (1997), the parents of a minor who gave his airgun to another juvenile were sued after a third child was struck by a pellet fired from the airgun. The gravamen of the complaint was that the defendants were negligent for failing to provide instructions to a person who they knew or should have known was unfit to handle a dangerous instrumentality in a safe manner. The trial court granted the defendant’s preliminary objections and dismissed the tort claims against the gun owner and his parents. On appeal, the Superior Court reversed and reasoned “that an owner of a weapon owes a duty to all people who might suffer harm or injury from the weapon’s discharge and this includes harm inflicted by a third person if the owner ‘knew or had reason to know that such person was likely to use the weapon in such a manner as to create an unreasonable risk of harm.’ ” Id. at 249, 685 A.2d at 172. Noting that the risk of injury could be regarded as “reasonably foreseeable,” the Frey court concluded that “the finder of fact could infer that ... the owner of the gun knew or should have known that [the co-defendant] was likely to use the weapon in such a manner as to create an unreasonable risk of harm.” Id. at 250, 685 A.2d at 172.

Instantly, Loff has averred that Granville was incompetent to operate a loaded shotgun and that Kasa “did not provide Ms. Granville with either training or instruction in the use of this shotgun” even though he was aware of her unfitness to use it. (See plaintiff’s complaint, ¶¶6, 8.) Accepting those averments as true and affording Loff the benefit of all inferences reasonably deducible from those allegations, it is conceivable that Kasa “had reason to know that [Granville] was likely to use the weapon in such a manner as to create an unreasonable risk of harm.” Frey, supra. Therefore, Kasa’s demurrer will be denied at this early stage of the litigation without prejudice to his right to later seek dismissal of Loff’s failure to train/supervise claim based upon information revealed during discovery. See e.g., J. H. ex rel. Hoffman v. Pellak, 764 A.2d 64, 66-67 (Pa. Super. 2000) (summary judgment entered in favor of non-custodial parent who did not know about the air pistol in her son’s possession and was unaware of the need to supervise his use of the pistol). Cf. City of Philadelphia v. Beretta USA, Corp., 126 F. Supp.2d 882, 901-903 (E.D. Pa. 2000).

(D) Kasa’s Duty As a Landowner

Kasa generally demurs to Loff’s complaint on the grounds that he has failed to allege facts which support a cognizable theory of landowner liability against Kasa. It is beyond dispute that the duty to protect against known dangerous conditions falls upon the possessor of the land, Zimmerman, 168 F.3d at 684, and the degree of care required is dependent upon the entrant’s status as a trespasser, licensee or invitee. Updyke v. BP Oil Co., 717 A.2d 546, 549 (Pa. Super. 1998); Palange v. Philadelphia Law Dept., 433 Pa. Super. 373, 375-77, 640 A.2d 1305, 1307 (1994), alloc. denied, 542 Pa. 649, 666 A.2d 1057 (1995). A trespasser is defined as “a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” Rossino v. Kovacs, 553 Pa. 168, 718 A.2d 755, 756-57 (1998); Zimmerman, 168 F.3d at 685. A licensee is a person who is privileged to enter or remain upon the land by virtue of the possessor’s consent. Updyke, supra; Zimmerman, supra. However, permission to use the premises may be implied from conduct on the part of the landowner which justifies others in believing that they are allowed to use the property, Wiegand by Wiegand v. Mars National Bank, 308 Pa. Super. 218, 223, 454 A.2d 99, 102 (1982), even though there was no specific permission to use the land on the occasion in question. Pallange, supra at 379-80, 640 A.2d at 1308-1309. By way of illustration, “when a landowner tacitly permits the boys of the town to play ball on his vacant lot, they are licensees only.” Updyke, 111 A.2d at 550 (quoting Restatement (Second) of Torts §332 comment d).

“In Pennsylvania, a trespasser may recover for injuries sustained on land only if the possessor of land was guilty of wanton or willful negligence or misconduct.” Rossino, 718 A.2d at 756; Chicchi v. SEPTA, 727 A.2d 604, 609 (Pa. Commw. 1999), alloc. denied, 560 Pa. 736, 747 A.2d 371 (1999) (possessor has “duties to refrain from a reckless and wanton conduct toward a trespasser and to exercise ordinary and reasonable care, if the trespasser is known to [the possessor]”). Conversely, a possessor of land is liable to a licensee for ordinary negligence if the possessor knows or has reason to know of the dangerous condition and fails to exercise reasonable care to make the condition safe or to warn licensees of the risks presented. Rossino, 718 A.2d at 757. Furthermore, the Recreational Use of Land and Water Act (RULWA) generally immunizes a landowner who makes property available to the public for recreational purposes free of charge, except for instances of “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.” See 68 P. S. §§477-3, 477-4, 477-6.

In his preliminary objections, Kasa refers to Loff as “an admitted trespasser” who was not owed any duty by

Kasa. (See defendant’s preliminary objections, ¶¶30-32.) However, the complaint suggests that Loff was a licensee and avers that “the area was not posted with ‘no trespassing’ signs or any other type of warning or barrier indicating that [Loff] was not permitted to enter or remain in the area.” To the contrary, Loff asserts that “there was a road leading into the area where the trailer and Marie Helen Granville were located on November 9, 1999, indicating to [Loff] that the area was open for others to enter upon this area.” (See plaintiff’s complaint, ¶¶11-12.) More importantly, even if Loff and his companions were deemed to be trespassers, Loff repeatedly charges Kasa with “recklessness and wanton misconduct” in addition to ordinary negligence. {Id., ¶¶48-55.) As a consequence, regardless of Loff’s status as a trespasser or licensee, the allegations of the complaint are sufficient to state a viable cause of action against Kasa.

Alternatively, Kasa posits that he is immune from liability under the RULWA. That Act grants immunity to a landowner whose land is used for recreational purposes by the public without charge regardless of whether [s]he has invited or permitted the public to enter the land. Friedman v. Grand Central Sanitation Inc., 524 Pa. 270, 277-78, 571 A.2d 373, 376-77 (1990) (following Barrett v. Pennsylvania Gas & Water Co., 631 F. Supp. 731, 734 (M.D. Pa. 1985) (Nealon, CJ.)). Assuming arguendo that the RULWA is applicable, Kasa may nevertheless be held liable under 68 P.S. §477-6(1) for willful failure to guard or warn against a dangerous condition or activity. As stated above, Loff has, in fact, averred that Kasa is chargeable with wanton or willful misconduct. Compare Zlakowski v. PennDOT, 154 Pa. Commw. 528, 533-34, 624 A.2d 259, 261-62 (1993) (plaintiff’s amended complaint failed to allege a willful or malicious failure to warn under section 477-6(1)); Barrett, 631 F. Supp. at 734 (“plaintiff conceded that there was no evidence of any willful activity.”). Hence, Loff has sufficiently alleged a landowner liability claim upon which relief may be granted. See Baran v. Pagnotti Enterprises Inc., 402 Pa. Super. 298, 303, 586 A.2d 978, 980 (1991) (the RULWA’s “ ‘willful and malicious’ standard represents a codification of the standard of care owing to a gratuitous licensee at common law.”).

(E) Motion for More Specific Pleading

Last, Kasa argues that Loff should be directed to file a more specific complaint since he “alleges that Mr. Kasa ‘provided’ a loaded shotgun to Ms. Granville” but “[n]o definition or explanation of the word ‘provided’ is given.” (See defendants’ preliminary objections, ¶26.) Under the Pennsylvania Rules of Civil Procedure, the material facts upon which a cause of action is based must “be stated in a concise and summary form” with “[ajverments of time, place and items of special damage [being] specifically stated.” Pa.R.C.P. 1019(a), (f). Pursuant to that fact pleading mandate, a complaint must not only apprise the defendant of the claims being asserted, but must also synopsize the essential facts which support those claims. Miketic v. Baron, 450 Pa. Super. 91, 104, 675 A.2d 324, 330-31 (1996); Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa. Super. 293, 298, 464 A.2d 1349, 1352 (1983). In order to withstand a challenge for lack of specificity, the pleading must contain averments of all the facts that the plaintiff will eventually have to prove in order to recover and must be sufficiently specific so as to enable the defendant to prepare a defense and responsive pleading. Baker v. Rangos, 229 Pa. Super. 333, 350, 324 A.2d 498, 505-506 (1974); Doe v. Curran, 45 D.&C.4th 544, 556 (2000).

It is axiomatic that words are to be interpreted according to their common and approved usage, see e.g., Pa.R.C.P. 103(a), and the term “provided” is generally construed as denoting the giving, furnishing, supplying or equipping of an item to another. As used in the complaint, the word “provided” is sufficiently specific such that Kasa is capable of preparing a defense and answer. Accordingly, the request to have Loff file a more specific pleading will be denied.

ORDER

And now, April 25, 2001, upon consideration of the “preliminary objections of Cary Kasa,” the memoranda of law submitted by the parties and the oral argument of counsel on April 23, 2001, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The preliminary objections of defendant, Cary Kasa, are granted in part and denied part;
(2) The preliminary objection in the nature of a demurrer to the assertion of a duty of “extraordinary care” is granted and the allegations regarding a duty of “extraordinary care” are stricken from the complaint;
(3) In all other respects, the preliminary objections in the nature of a demurrer and a motion for a more specific pleading are denied; and
(4) Within 20 days of the date of this order, defendant, Cary Kasa, shall file a responsive pleading to the complaint.

      . As discussed in section 11(D) infra, Loff may have been a trespasser on Kasa’s property at the time of the shooting. In Zimmerman v. SEPTA, 168 F.3d 680 (3d Cir. 1999), the U.S. Court of Appeals for the Third Circuit examined the heightened standard of care applicable to electricity suppliers vis-a-vis trespassers and concluded:
      “Generally, the supplier of electricity or the possessor land site owes a heightened, rather than an ordinary, degree of care to an entrant on land with high-voltage electrical transmission lines.... However, this heightened duty of care extends only to those lawfully in proximity to the wires. The standard of care owed to trespassers by suppliers of electricity is a duty to avoid willful and wanton injury.” Id. at 687. (emphasis in original) (citations omitted)


author: MINORA, J.,

text:
    Pisarchick v. Progressive Companies

      C.P. of Lackawanna County,
    no. 00-CV-4422.

      Michael J. McDonald, for plaintiff.

      Eugene Hickey II, for defendant.
    April 27, 2001
   MINORA, J.,

Presently before the court are the defendant’s preliminary objections to the plaintiff’s complaint. At issue is whether the Pennsylvania Motor Vehicle Financial Responsibility Law is the exclusive remedy for denial of first-party medical benefits under an automobile insurance policy. Oral arguments were heard on February 27, 2001, and the parties have now submitted their respective memorandum of law and briefs making the matter ripe for disposition. Upon review of the pleadings by the parties, their memorandum and brief, and oral arguments, and for reasons discussed below, the defendant’s preliminary objections are overruled.

FACTUAL BACKGROUND

On May 15, 1999, Shirley Pisarchick, plaintiff, was seriously injured in a car crash wherein she- suffered herniated discs in her low back and neck and an aggravation of pre-existing low back and neck conditions. At the time of the accident, the plaintiff was covered by an automobile policy issued by Progressive Insurance Company, defendant. The policy provided for $10,000 in coverage for first-party medical benefits.

At the time of the accident, the plaintiff notified the defendant of the car crash and completed a first-party benefit application in a timely manner as well as medical authorization. Various medical providers including, but not limited to, Dr. Leroy Pelicci and Northeast Pennsylvania Imaging submitted medical bills and bills for test results to the defendant. On November 1, 1999, the defendant requested a peer review organization to review the submitted medical bills and submitted the matter to Consolidated Rehabilitation Company who has and continues to supply the defendant with peer review services. In mid-December, a Consolidated Rehabilitation Company doctor recognized auto accident-related herniated discs in the neck and lower back and the reasonableness and necessity of magnetic resonance imaging procedures in evaluation of the same, but did not allow any further treatment for these other than one visit.

A reconsideration was requested and on February 21, 2000, a reconsideration was performed by the same company but another doctor. The second doctor agreed that the plaintiff suffered herniated discs in her neck and low back as a result of the accident and allowed MRIs to be done and treatment including trigger injections up through September 7, 1999. Based upon these reports, all treatment has been denied thereafter.

Plaintiff filed a complaint alleging that the denials were in breach of the contract pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law, (MVFRL) 75 Pa.C.S. §1716, as applicable to the contract, and also alleged in Count II bad faith liability pursuant to 42 Pa.C.S. §8371. The defendant filed preliminary objections to Count II of the plaintiff’s complaint.

DISCUSSION

I. Pennsylvania Motor Vehicle Financial Responsibility Law

The Pennsylvania Motor Vehicle Financial Responsibility Law states in pertinent part,

“Peer review plan for challenges to reasonableness and necessity of treatment.—
“(1) Peer review plan.—Insurers shall contract jointly or separately with any peer review organization established for the purpose of evaluating treatment, health care services, products or accommodations provided to any injured person. Such evaluation shall be for the purpose of confirming that such treatment, products, services or accommodations conform to the professional standards of performance and are medically necessary. An insurer’s challenge must be made to a PRO within 90 days of the insurer’s receipt of the provider’s bill for treatment or services or may be made at any time for continuing treatment or services.
“(2) PRO reconsideration.—An insurer, provider or insured may request a reconsideration by the PRO of the PRO’S initial determination. Such a request for reconsideration must be made within 30 days of the PRO’S initial determination. If reconsideration is requested for the services of a physician or other licensed health care professional, then the reviewing individual must be, or the reviewing panel must include, an individual in the same specialty as the individual subject to review. . . .
“(5) PRO determination in favor of provider or insured.^—If a PRO determines that medical treatment or rehabilitative services or merchandise were medically necessary, the insurer must pay to the provider the outstanding amount plus interest at 12 percent per year on any amount withheld by the insurer pending PRO review.” 75 Pa.C.S. §1797(b).

II. Bad Faith Under an Insurance Policy

Actions on insurance polices are governed by 42 Pa.C.S. §8371, which provides,

“In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
“(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3 percent.
“(2) Award punitive damages against the insurer.
“(3) Assess court costs and attorney fees against the insurer.” 42 Pa.C.S. §8371.

III. Defendant’s Preliminary Objections

The defendant filed preliminary objections to the bad faith and punitive damages claims contained in Count II of the plaintiff’s complaint. The defendant submits that 42 Pa.C.S. §8371 should not apply to actions seeking recovery of first-party benefits under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq. The defendant argues that when two statutes conflict, such as the bad faith provisions and the Pennsylvania Motor Vehicle Financial Responsibility Law, the court should determine the scope and applicability of the statutes by ascertaining the intent of the statute. The defendant relies on 1 Pa.C.S. §1921, which states in pertinent part,

“The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S. § 1921 (a).

The defendant asserts that the MVFRL is a legislative response to the high cost and frequent unavailability of voluntary automobile insurance in Pennsylvania. The defendant submits that the MVFRL comprises a comprehensive scheme for review and payment of first-party claims, including specific legislative judgments on what remedies should be available to claimants, when those remedies apply, and how extensive the remedy should be. The defendant submits that the MVFRL, when read in light of the rules of statutory construction, shows a legislative intent to apply the specific rights and remedies of the MVFRL to claims for first-party benefits. The defendant further submits that the MVFRL, rather than the more general and conflicting provisions of 42 Pa.C.S. §8371, should apply to such claims. The defendant asserts that applying 42 Pa.C.S. §8371 to first-party claims would render much of its work superfluous, interfere with the review mechanisms in the MVFRL, set standards for remedies that are consistent and conflict with the MVFRL, and grant a cause of action that goes beyond the legislative intent.

The defendant asserts that 42 Pa.C.S. §8371 and the MVFRL conflict in numerous areas. The defendant submits that both statutes cannot apply to first-party claims. The defendant further submits that applying both statutes to first-party claims would result in conflicting standards and remedies, and interfere with the mechanisms the legislature has mandated for first-party claims. The defendant argues that 42 Pa.C.S. §8371 has no specific application to claims for first-party benefits, and is not included in the MVFRL. The defendant asserts that the specific provisions in the MVFRL would apply, rather than the more general provisions of 42 Pa.C.S. §8371.

The defendant erroneously relies on Barnum v. State Farm Mutual Automobile Insurance Co., 430 Pa. Super. 488, 635 A.2d 155 (1993), which has been reversed by the Pennsylvania Supreme Court, 539 Pa. 673, 652 A.2d 1319 (1994). Counsel for the defendant also orally provided the court with the case Terminato v. Pennsylvania Nationwide Insurance Co., 538 Pa. 60, 645 A.2d 1287 (1994), which essentially overrules Barnum. In Terminato, the Pennsylvania Supreme Court stated that 75 Pa.C.S. § 1797(b) does not empower a PRO to serve as a forum to resolve dispute between an insured and insurer. Terminato, 538 Pa. at 67, 645 A.2d at 1292. The legislature did not vest authority in the PRO to entertain litigation arising out of the nonpayment of medical benefits. Id. Nor does the statutory provision provide a remedy for the nonpayment of medical benefits. Id. Section 1797(b) is a cost-containment provision, not an alternative dispute resolution procedure. Id. The legislature did not intend to impose reconsideration of the PRO determination as a precondition to the judicial resolution of a private contractual dispute. Id.

The defendant also relies upon Gemini Physical Therapy v. State Farm Mutual Auto., 40 F.3d 63 (3d Cir. 1994), which followed the reasoning set forth in Barnum, and was decided before the Pennsylvania Supreme Court reversed Barnum. The Third Circuit Court found that the statutory construction outlined in Barnum to be convincing and erroneously predicted that the Pennsylvania Supreme Court would rule similarly on this matter. Gemini, 40 F.3d at 67.

Counsel for the defendant notified the court of relevance of Schwartz v. State Farm Insurance Co., 1996 WL 189839 (E.D. Pa. 1996). The United States District Court for the Eastern District of Pennsylvania found that where an insurer has not complied with the specific provisions of 75 Pa.C.S. §1797 with regard to its purpose in submitting a claim to a PRO, there is no reason to limit the damages that may be recovered from the insurer to the damages set out in that section. Schwartz, 1996 WL 189839 at 5. In that situation, 75 Pa.C.S. §1797 and 42 Pa.C.S. §8371 are not irreconcilable. Id. It is thus possible to give both sections their full effect; the MVFRL is the exclusive remedy when it applies and 42 Pa.C.S. §8371 applies in all other cases. Id.

The defendant submits that the Pennsylvania Motor Vehicle Financial Responsibility Law, particularly 75 Pa.C.S. §1797, includes the appropriate penalties of an insurance carrier and properly denies the claim for first-party benefits, therefore, Count II of the plaintiff’s complaint should be dismissed with prejudice.

IV. Plaintiff’s Position in Opposition

In the plaintiff’s complaint, the plaintiff alleges that the actions of the defendant regarding the peer review and the reconsideration constituted bad faith on the part of the defendant toward the plaintiff and that the defendant:

“(a) failed to exercise good faith in considering the interest of the plaintiff by promptly paying plaintiff’s claim after receiving reasonable proof of the amount of such loss;
“(b) without a reasonable foundation to do so;
“(c) wrongfully refused to pay plaintiff’s medical treatment thereby jeopardizing plaintiff’s continued course of treatment and care for the injuries;
“(d) compel the plaintiff to institute this litigation to recover those benefits rightfully due her by repeatedly failing or refusing to pay such benefits;
“(e) violating and ignoring the provisions of the MVFRL and the insurance policy;
“(f) failed to exercise the utmost good faith and discharge of its duty to the plaintiff;
“(g) engage in unfair claims settlement insurance practices in violation of its common law and statutory duties; and,
“(h) violating the provision of the MVFRL and the insurance policy by having illegal causation reviewed of the medical bills and expenses in treatment which resulted in the defendant’s improper denial of benefits.” Plaintiff’s complaint, paragraph 22.

The plaintiff argues that the MVFRL is a nonexclusive remedy for a bad faith denial of first-party medical and wage loss benefits and the preliminary objections of the defendant should be overruled.

The plaintiff disagrees with the defendant’s reliance on Barnum v. State Farm Mutual Auto Insurance Company, 430 Pa. Super. 488, 635 A.2d 155 (1993), reversed, 539 Pa. 673, 652 A.2d 1319 (1994), as the defining case law and the final word on the subject. The plaintiff asserts that after the Bamum decision, various courts have held that the bad faith statute continues to apply in the first-party context, and thus, at best, this area is not clear and free from doubt.

The plaintiff also alleges that the PRO determination and the peer review reconsideration determination were causation determinations which are not allowed pursuant to the MVFRL, 75 Pa.C.S. §1797 (plaintiff’s complaint mistakenly referred to section 1796). Plaintiff’s complaint, paragraph 21. The plaintiff submits that because 75 Pa.C.S. §1797 does not clearly address causation, the expressed language of the statute and any clear inferences indicate that a bill should be submitted and reviewed and then either found medically reasonable and necessary or not. The plaintiff further submits that by setting a definitive cut-off date the PRO has violated the letter and spirit of the statutory provisions and in essence has provided a causation review, all of which is in direct violation of 75 Pa.C.S. § 1797(b). The plaintiff concludes that the very language of the peer review reports supports allowance of the bad faith claim under the circumstances.

The plaintiff concludes that the law and facts clearly allow a bad faith case to go forward in this matter because the state of the law is unsettled in this area and the Pennsylvania Supreme Court has not spoken. The plaintiff notes that many courts have carved increasingly wide exceptions into the legal landscape outlined in Bamum. The plaintiff contends that the procedural facts regarding a denial of benefits clearly fit within case law outlining exceptions to Barman for violations of the peer review process and its mandatory provisions as found in 75 Pa.C.S. §1797.

The plaintiff cites to a memorandum and order issued by Judge Corbett of this court in the case of Burgette v. Selective Insurance Company, Lacka. Cty., 96-CV-824 (July 17, 1998). The court held that 75 Pa.C.S. §1797(b) of the MVFRL allows an insurer to retain a PRO to ascertain only that the treatment conforms to professional standards and is medically necessary and not whether the medical treatment was causally related to the particular accident. Burgette at 7, quoting Pierce v. State Farm Insurance Company, 27 D.&C.4th 464 (1994).

The plaintiff argues that although the peer review reports in this case technically discuss the reasonableness and necessity of certain medical treatment and testing, the defendant has used the language of the specific reports to deny all treatment after a certain date without reviewing specific bills which is a medical causation determination. The plaintiff asserts that since 75 Pa.C.S. §1797 of the MVFRL is not intended to address causation, the expressed language of the statute and any clear inferences indicate that a bill should be submitted and reviewed and then either found medically reasonable and necessary or not. The plaintiff contends that by setting a definitive cut-off date the PRO has violated the letter and spirit of the statutory provisions and in essence has provided a causation review, all in direct violation of 75 Pa.C.S. § 1797(b). The plaintiff concludes the very language of the peer review reports supports allowance of the bad faith claim under the circumstances, the law is far from clear and free of doubt, and the preliminary objections of the defendant should be dismissed.

V. Conclusion

The preliminary objections of the defendant must be reviewed as a demurrer. A demurrer under the Pennsylvania Rules of Civil Procedure is a preliminary objection asserting the legal insufficiency of a pleading. Pa.R.C.P. 1028(a)(4) (1999). A demurrer challenges the legal sufficiency of a complaint by alleging its failure to set forth a cause of action upon which the court can grant relief under any theory of law. PennDOT v. Wilkinsburg Penn Joint Water Authority, 740 A.2d 322, 324 (Pa. Commw. 1999), alloc. granted, 563 Pa. 927, 757 A.2d 935 (2000). The test of a demurrer is whether the facts averred in a pleading, if true, are legally sufficient to state a cause of action for which relief may be granted. Id.

In reviewing demurrers, the court accepts as true all well-pleaded material facts, as well as all reasonable inferences drawn therefrom. Stoppie v. Johns, 720 A.2d 808, 809 (Pa. Commw. 1998). The court will sustain a demurrer when it is clear and without doubt that no claim has been asserted for which relief can be granted. Ellenbogen v. PNC Bank, 731 A.2d 175, 181 (Pa. Super. 1999). To be clear and freé from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. DeMary v. Latrobe Printing and Publishing Co., 762 A.2d 758, 761 (Pa. Super. 2000), citing Donahue v. Federal Express Corp., 753 A.2d 238, 241 (Pa. Super. 2000). Any doubt should be resolved by a refusal to sustain the objections. Id. Should any doubt exist, the court must rule in favor of the non-moving party. Podgurski v. Pennsylvania State University, 722 A.2d 730, 731 (Pa. Super. 1998).

Because the defendant raised tenuous preliminary objections to the plaintiff’s complaint and largely relied on a case that has been reversed, no merit will be given to the defendant’s position. Doubt exists as to whether the defendant failed to exercise good faith in considering the interest of the plaintiff by promptly paying plaintiff’s claim after receiving reasonable proof of the amount of such loss. The facts are not clear as to whether or not the defendant complied with the specific provisions of 75 Pa.C.S. §1797. Therefore, the court must overrule the demurrer in favor of the non-moving party, the plaintiff. Accordingly, the defendant’s preliminary objections are overruled.

An appropriate order consistent with the reasoning above follows.

ORDER

And now, to wit, April 27, 2001, it is hereby ordered and decreed that the defendant’s preliminary objections to the plaintiff’s complaint are overruled.