author: BRINKLEY, J.,

text:
    Prudential Property & Casualty Insurance Co. v. O’Donnell

      Susan E. Boyer, for plaintiff.

      Lee Albert, for defendant.
    February 28, 2001
   BRINKLEY, J.,

Plaintiff Prudential Property & Casualty Insurance Co., has filed an appeal of this court’s declaratory judgment in favor of defendant James J. O’Donnell Jr., entered on July 7, 2000. This court agrees with appellee that Prudential’s policy of insurance with James J. O’Donnell Sr. provides underinsured motorist benefits to James J. O’Donnell Jr.

I. PROCEDURAL HISTORY

The plaintiff, Prudential Property & Casualty Insurance Co. brought an action for declaratory judgment in this matter. Prudential sought a determination by this court that the policy of its insured, James J. O’Donnell Sr., did not provide underinsured motorist benefits to the defendant James J. O’Donnell Jr. O’Donnell opposed this judgment. The parties stipulated to a set of facts and the case was submitted to this court for judgment on the briefs. An order declaring that Prudential was to afford underinsured motorist benefits to O’Donnell was issued on July 7, 2000. A post-trial motion for reconsideration and relief in the form of oral argument was filed by plaintiff on September 22, 2000. This court denied the post-trial motion on October 27, 2000. Plaintiff Prudential filed notice of appeal to the Superior Court of Pennsylvania on October 17, 2000.

H. FACTUAL HISTORY

Counsel for both parties stipulated to facts in lieu of testimony [S.F.]. The undisputed facts are as follows: On January 27, 1996, O’Donnell was involved in a car accident with a vehicle driven by Robert Cervantes. At the time, O’Donnell was driving his own vehicle, a 1994 Chrysler LeBaron, insured by The Insurance Company of the State of Pennsylvania. His policy with The Insurance Company of the State of Pennsylvania included underinsured motorist coverage in the amount of $15,000 per person. (S.F. ¶¶1-3.) Cervantes had automobile insurance through Allstate Insurance Company, with total coverage of $15,000 per person. O’Donnell recovered the full amount available from Cervantes’ Allstate policy, with knowledge and consent of Prudential. (S.F. ¶¶4-5.) O’Donnell also collected the $15,000 of underinsured motorist protection under his own policy with The Insurance Company of the State of Pennsylvania. (S.F. ¶8.)

At the time of O’Donnell’s accident, James J. O’Donnell Sr., defendant’s father, had an insurance policy through Prudential. Under that policy, two cars were listed, a 1972 Chevrolet Nova and a 1979 Chevrolet Malibu. (S.F. ¶¶10-13.) Although the LeBaron was not included among the vehicles on his father’s policy, O’Donnell was listed as an insured driver resident in the household. (S.F. ¶14.) This Prudential policy had limits for underinsured benefits in the amount of $25,000 per person. (S.F. ¶11.) The Prudential policy also contained a clause providing that Prudential would not pay for the bodily injury of a driver covered under the policy, but driving a vehicle not listed or insured by Prudential. Prudential denied coverage to O’Donnell for any underinsured motorist benefits under this exclusion in its policy with James J. O’Donnell Sr. (S.F. ¶6.) Prudential then sought a declaratory judgment to support its denial of these benefits to O’Donnell.

m. DISCUSSION

A. Standard of Review

When presented with a declaratory judgment action, a trial court has the power to declare rights, status and other legal relations. 42 Pa.C.S. §7532. Whether the decision of the trial court is affirmative or negative, the declaration has the force and effect of a final judgment. Id.; Prudential Property and Casualty Insurance Company v. Gisler, 764 A.2d 1111(Pa. Super. 2000); Warner v. Continental/CNA Insurance Cos., 455 Pa. Super. 295, 688 A.2d 177, 179 (1996). The review of a trial court’s declaration is very narrow and it is only set aside where the factual findings are not supported by sufficient evidence. O’Brien v. Nationwide Mutual Insurance Company, 455 Pa. Super. 568, 689 A.2d 254, 257 (1997).

B. Defendant James J. O’Donnell Jr. Is an Insured Driver Under the Policy Issued by Plaintiff Prudential to James J. O’Donnell Sr. for Purposes of Underinsured Motorist Benefits

The issues in this case are governed by applicable provisions of the Motor Vehicle Financial Responsibility Law (“MVFRL”) 75 Pa.C.S. §1701 et seq. An underinsured motor vehicle is defined as a “motor vehicle for which the limits of available liability insurance and self-insurance are insufficient to pay losses and damages.” 75 Pa.C.S. §1702. The provisions of section 1731 mandate that insurance carriers offer uninsured (UM) and underinsured motorist (UIM) protection. The amount of UM/UIM offered must be equal to that amount provided for bodily injury liability. 75 Pa.C.S. §1731(a). “The purpose of underinsured motorist coverage is to protect the insured (and his additional insureds) from the risk that a negligent driver of another vehicle will have inadequate liability coverage to compensate for the injuries caused by his negligence.” Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa. Super. 51, 58, 535 A.2d 1145, 1149 (1988). (emphasis added) The legislature ensured that every motorist who is injured and cannot recover completely from a negligent driver may have recourse of at least $15,000 either “(1) pursuant to the policy of insurance applicable to the vehicle in which the [injured] was a passenger ... OR (2) pursuant to a policy of insurance under which the injured [person] is an insured.” Wolgemuth, 370 Pa. Super. at 57, 535 A.2d at 1148. (emphasis added) The MVFRL defines an insured as “any individual identified by name as an insured in a policy of motor vehicle liability insurance.” The Wolgemuth court, also noted significantly in its opinion that UIM insurance follows the person, not the vehicle. 370 Pa. Super. at 60, 535 A.2d at 1150 cited in Burstein v. Prudential Property, 742 A.2d 684, 684-88 (Pa. Super. 1999).

When more than one policy may apply to an injured motorist, the rule of priority of application is set forth in section 1733. First, a policy covering the vehicle occupied at the time of injury will apply. 75 Pa.C.S. § 1733(a)(1). Next to be applied is a policy covering a motor vehicle not involved in the accident, but under which the injured person is an insured. 75 Pa.C.S. § 1733(a)(2). The design of the MVFRL was concluded by the courts of this state to have contemplated recovery up to “the available limits of liability applicable to the negligent vehicle, with recourse to underinsurance benefits pursuant to any separate insurance policy.” Paylor v. Hartford Insurance Co., 536 Pa. 583, 589, 640 A.2d 1234, 1236-37 (1994).

In the instant case, defendant O’Donnell was an insured under the policy between Prudential and his father, James J. O’Donnell Sr. He was named as an insured, and to protect him as such and compensate him for the injuries caused by another’s negligence, he must be awarded the amount of UIM coverage specified in his father’s policy. The tort-feasor who injured O’Donnell was not sufficiently insured. Allowing O’Donnell to recover under the Prudential policy properly furthers the intent of the MVFRL by supplementing the inadequate insurance of the negligent motor vehicle operator who caused the defendant’s injuries. If an exclusion based on multiple applicable insurance policies was proper, there would be no need for section 1733 to specify the priority in which policy funds should be applied. Obviously, since the statute recognizes the priority of applicable policies, it also recognizes that more than one UIM policy may and can apply. The purpose of the UIM provisions of the MVFRL was to prevent families within a household from trying to undercut the insurance system with underinsured vehicles. Paylor, 536 Pa. at 596, 640 A.2d at 1240. UIM coverage is not designed to relieve an insured or family from purchasing adequate insurance for their vehicles. Id.

Plaintiff’s argument that defendant is not insured because he was not driving a car listed on the insurance policy is meritless. Plaintiff has asserted that defendant is precluded from recovering under the Prudential policy with James J. O’Donnell Sr., because defendant O’Donnell was not driving a car listed on that policy. However, this argument is specifically rebutted by the language of the MVFRL defining “insured.” If the legislature had intended to apply insurance only to listed vehicles, the definition of “insured” for UIM purposes would not include the word “OR.” (See discussion supra at p. 121.) Moreover, as cited in Wolgemuth, supra, the purpose of UIM insurance is to allow an injured to recover, pursuant to the policy of insurance applicable to the vehicle in which the injured was a passenger OR under a policy under which the injured is insured, (emphasis added) The UIM coverage properly follows defendant O’Donnell as an insured, without regard to the vehicles listed on the policy. Defendant O’Donnell was properly named as an insured driver under the Prudential policy issued to James J. O’Donnell Sr.

C. The Other Household Vehicle Exclusion in Plaintiff’s Policy with James J. O’Donnell Sr. Is Void As Against Public Policy

In Burstein v. Prudential Property, the Superior Court set forth several reasons which may make a clause in an insurance policy related to UIM coverage void:

“(1) The MVFRL was enacted in order to establish a liberal compensation scheme of UIM protection; (2) it is in the public’s best interest for insurance companies to provide UIM coverage; and (3) UIM coverage is first party coverage and therefore . . . follows the person, not the vehicle.” 742 A.2d 684, 684-88 (Pa. Super. 1999) cited in Prudential Property and Casualty Insurance Co., 764 A.2d at 1113. The court also noted that the claimant was entitled to UIM coverage because she had not attempted to avoid buying adequate insurance but had fully complied with the UIM provisions of the MVFRL and had obtained liability and UIM coverage on all of the vehicles she owned. Burstein, 742 A.2d at 690. If a claimant has complied with the letter and spirit of the MVFRL, a clause denying UIM coverage is more likely to be void as against public policy. Prudential Property and Casualty Insurance Co., 764 A.2d at 1114.

A household exception clause was found invalid in Marroquin v. Mutual Benefit Insurance Co., 404 Pa. Super. 444, 591 A.2d 290 (1991). One Marroquin son was hit and injured by a vehicle owned, operated and insured by his brother. The injured son recovered from his brother’s policy and then sought to recover from the parents’ policy. Both sons resided with their parents. The parents’ policy with Mutual Benefit Insurance Company contained a family car exclusion. The Superior Court held the exclusion was invalid under Pennsylvania law, adopting the reasoning of a Minnesota court in a similar case. Marroquin, 404 Pa. Super. 444, 454-55, 591 A.2d 290, 295-96 (citing DeVille v. State Farm Mutual Insurance Company, 367 N.W.2d 574 (1985)). The Superior Court adopted the general rule that an insurance policy clause which excluded UIM coverage when an insured is injured while using a vehicle owned by the insured or a family member is presumptively invalid. Marroquin, 404 Pa. Super. at 456, 591 A.2d at 296. The exception is when the claimant is attempting to convert inexpensive UIM insurance into additional liability insurance. Id. The Superior Court held that “[ujnder the facts of this case, [the family car exclusion] was not justified as its purpose was not to convert underinsured motorist coverage into liability coverage.” Marroquin, 404 Pa. Super. at 457, 591 A.2d at 297.

Furthermore, the Pennsylvania Supreme Court held in Paylor v. Hartford Insurance, 536 Pa. 583, 595, 640 A.2d 1234, 1240 (1994), that the validity of a household or family car exclusion is determined by the facts set forth in each case. Presumptively, such clauses are invalid. The exception to the rule is when the exclusionary clause is upheld because an insured is attempting to convert UIM into liability coverage. This is a very limited exception to the general rule that the family car or household exclusion is invalid as against public policy. Id. (citing Sherwood v. Bankers Standard Insurance Co., 424 Pa. Super. 13, 17, 621 A.2d 1015, 1017 (1993)).

Cases where a household exception has been upheld involve situations in which the vehicle in which claimant was injured was not fully insured or not insured at all. Additionally, none of the drivers were claimed to be listed on the household policy as drivers, although they may have claimed coverage as a household member. See Eichelman v. Nationwide Insurance Company, 551 Pa. 558, 711 A.2d 1006 (1998) (denying UIM coverage for member of household on mother’s policy when son was injured on own, separately insured motorcycle for which UIM protection was rejected); Hart v. Nationwide Insurance Company, 541 Pa. 419, 663 A.2d 682 (1995) (refusing to extend daughter’s policy to injured father who declined protection and was injured in own under-insured vehicle); Windrim v. Nationwide Insurance Company, 537 Pa. 129, 641 A.2d 1154 (1994) (declining to extend mother’s UIM coverage to son who resided at household but was injured while driving his own uninsured vehicle).

The case at bar is distinct from these limited exception cases. In this case, defendant O’Donnell fully complied with the letter and spirit of the MVFRL. He had insurance on his properly registered vehicle. He had liability and UIM coverages in the statutorily prescribed amount. James J. O’Donnell Sr. also fully complied with the MVFRL by insuring his own vehicles fully and even maintaining insurance for the third driver in his house, defendant O’Donnell. These attempts to obtain the full insurance necessary are significantly notable. The defendant and his father were both fully insured. The problem that arose was caused by the negligence and under-insurance of the tort-feasor, Cervantes. O’Donnell should not be penalized because he was injured and he is still insured under his father’s insurance. There is no valid reason why O’Donnell should not be awarded UIM recovery under his father’s policy. There is only valid support for the proposition that public policy mandates the exclusion upon which plaintiff is relying is void. Full compliance with the MVFRL should not result in exclusion from coverage. An injured claimant should be fully compensated for his or her injuries by applicable insurance.

The exclusionary clause relied upon by plaintiff in its denial of UIM benefits to O’Donnell is void as against public policy. To properly effectuate the intent of the MVFRL, the Prudential policy’s UIM coverage should extend to O’Donnell, a named insured. Moreover, there is no claim here that O’Donnell is trying to convert the UIM into liability recovery. Therefore, the general rule applies and the exclusion is void. O’Donnell should be afforded the protection of the UIM benefits of the policy between Prudential and James J. O’Donnell Sr.

IV. CONCLUSION

Based upon the foregoing, this court properly entered a declaratory judgment ordering plaintiff Prudential to afford underinsured motorist benefits to defendant O’Donnell. Therefore, plaintiff’s motion was properly denied and its appeal should be dismissed.

      . At all times material hereto, including January 27,1996, defendant O’Donnell resided with his father at 10939 Waldemire Drive, Philadelphia, PA 19154.

      12. Prudential policy, part 5, pp. 7 and 8 provide significantly:
      “[W]e will not pay for bodily injury to anyone occupying or struck by a motor vehicle owned or leased by you or a household resident which is not covered under this policy, or if the liability coverage of that vehicle is used, pay any portion of an insured’s bodily injury liability claim.”


source: Caselaw Access Project

author: MILLIN, P.J.,

license: Public Domain

text:
    Osborne v. Erie Paint Co.

      C.P. of Warren County,
    no. 700 of 1998.

      Christin E. Horsley, for plaintiff.

      Lisa Lynn Smith, for defendants.
    January 24, 2001
   MILLIN, P.J.,

—This personal injury action, arising out of a December 13, 1996 automobile accident, is before the court on defendants’ motion for summary judgment. The defendants seek judgment on the basis that the plaintiff failed to commence this lawsuit within the applicable statute of limitation. Plaintiff initiated this lawsuit by filing a praecipe for a writ of summons on December 28, 1998. Discovery has largely been completed, however, because the whereabouts of defendant Andrew Elliot Overton were unknown until late December of 2000; he had not been deposed prior to the filing of this motion. Nevertheless, this matter is appropriately before the court because defendant Overton’s testimony will not be relevant to the question raised herein.

The underlying automobile accident occurred on December 13, 1996, on Route 79 in Erie County, when plaintiff slowed her vehicle in response to traffic slowing ahead of her and defendant Overton struck the rear of her car. Plaintiff’s deposition at pp. 56, 57. Overton, an employee of co-defendant Erie Paint Company at the time, was driving Erie Paint Company’s track. Complaint and answer at ¶¶2, 3, 4, 8.

After plaintiff provided information to the investigating police officer, her uncle took her to the emergency department at Hamot Hospital in Erie where she complained of pain in her shoulder, back, and hips. Plaintiff’s deposition at pp. 60-63. X-rays taken that day were negative for any cervical spine fracture and she was diagnosed with a cervical spine sprain, given a cervical collar to wear, and released. Defendants’ exhibit B, pp. 1-2.

On the next day, December 14,1996, plaintiff sought treatment at the emergency department of Warren General Hospital, complaining of continuing pain. Defendants’ exhibit C (Warren General Hospital emergency department report of 12/14/96). X-rays taken that day likewise did not disclose a fracture. Defendants’ exhibit C (radiology consultation of 12/14/96). She sought treatment from her physician, Dr. Albert Turbessi, on December 16, 1996, who diagnosed plaintiff with a contusion to her left clavicle, prescribing pain medication and a sling as needed. Defendants’ exhibit D (progress notes by J. McKown, Pa-C, 12/16/96).

Plaintiff again returned to Dr. Turbessi’s office on January 3, 1997, continuing to complain of pain. Id. At this point her physician referred her for physical therapy theorizing that the origin of her pain was muscular. Plaintiff received physical therapy until late March of 1997 when she complained to her physical therapist of increasing numbness in her buttocks. Plaintiff’s deposition at p. 76.

Dr. Turbessi then ordered a CT scan, which, according to the radiology consultation report, revealed an “expansile destructive process in the right transverse process and pedicle of the body of L/4. Options would include an aneurismal bone cyst, a giant cell tumor, perhaps a Brodie’s abcess.” Plaintiff’s exhibit K. Follow-up tests, consisting of an MRI, a bone scan, and electromyogram, and a CT guided needle biopsy, all produced negative results. Plaintiff’s exhibits F. These tests were performed in early April 1997.

In early May, plaintiff was referred to an orthopedic specialist, Dr. Gary Cortina, who reported an impression that plaintiff had an osteoblastoma of the lumbar spine, which he feared was very close to breaking through the pedicle. Plaintiff’s exhibit M. On May 14, 1997, Dr. Cortina performed an excisional biopsy with grafting of the right side pedicle lesion. Id. Dr. Cortina wrote to plaintiff’s counsel, on January 6, 1999, to relate plaintiff’s injury to the motor vehicle accident:

“Her work-up [in May 1997] showed what appeared to be an aneurismal bone cyst involving the right pedicle and transverse process. As to your question of whether the accident caused the aneurismal bone cyst, certainly it did not. But, I suspect that the automobile accident and the trauma sustained during that fractured into the aneurismal bone cyst and began the vicious cycle of pain due to the fracture non-union. ... as to your questions, I think her pain is related to the fracture that occurred through the previously pre-existing aneurismal bone cyst within the posterior elements of her lumbar spine.” Plaintiff’s exhibit M at p. 6.

Plaintiff testified in her own words that she understood Dr. Cortina to suggest that a long-standing benign tumor in her L/4 vertebrae had been ruptured by the accident and that that caused her pain. She understood that the rupture was forming a cyst, which was the lesion found in the CT scan, and had attached to her spinal cord creating numbness. Plaintiff’s deposition atp. 34. Plaintiff admitted in her deposition that her pain was constant from the date of the accident, rather than progressive. Plaintiff’s deposition atpp. 21-22. In January 1999, plaintiff was operated on a second time to replace with her own hipbone graft the coral grafting material used in the May 1997 surgery, which had failed to bond. Plaintiff’s deposition at p. 42.

In the meantime, plaintiff’s economic losses had commenced nearly immediately. Plaintiff missed three days of work on December 16, 17, and 18, 1996. Plaintiff’s exhibit G. Dr. Turbessi released her to work on December 19, 1996 in a light duty capacity. Plaintiff’s deposition at p. 19-20. In January 1997, she discontinued working or was terminated from her position. She found new employment in June of 1997.

Plaintiff had selected a limited tort automobile insurance policy. Complaint ¶6. Her policy did not contain first-party wage loss coverage. Plaintiff’s deposition p. 31. Because her automobile insurance policy was of the limited tort variety, plaintiff was required to substantiate that she had sustained a “serious bodily injury” before claiming any noneconomic damages. 75 Pa. C.S. § 1705(d); see also, Rump v. Aetna Casualty and Surety Co., 551 Pa. 339, 343-44, 710 A.2d 1093, 1095 (1998) (quoting section 1705(d) and noting statute requires a serious bodily injury threshold be reached before a limited tort plaintiff may seek recovery of noneconomic damages except in limited circumstances). Plaintiff claims that she was unaware that she had sustained a serious bodily injury until the date of her first surgery on May 14, 1997. Until that time she alleges that her doctor had diagnosed her with a soft tissue injury that did not rise to the level of a serious bodily injury under the prevailing case law. See Dodson v. Elvey, 445 Pa. Super. 479, 501, 665 A.2d 1223, 1234 (1995) (finding no serious bodily injury in an arm injury involving muscle soreness requiring physical therapy, heat, and exercises).

Plaintiff placed into the record a letter dated February 27, 1998, written to her counsel from the defendants’ insurance carrier, Erie Insurance Company, in which the claims adjuster expressed the company’s opinion that plaintiff’s injuries did not exceed the limited tort threshold, pending an updated review of plaintiff’s medical records and treatment. Plaintiff’s exhibit I.

The defendants filed this motion for summary judgment on November 16, 2000. Initially, defendants argued that the plaintiff knew or reasonably should have known that she had sustained a serious bodily injury from the date of the accident, December 13, 1996, rendering her praecipe filed December 28, 1998, outside the two-year statute of limitation. Defendants conceded that Walls v. Scheckler, 700 A.2d 532 (Pa. Super. 1997), alloc. denied, 553 Pa. 686, 717 A.2d 1029 (1998), applied the discovery rule in a limited tort case but distinguished plaintiff’s constant pain from the date of the accident to the progressive injury sustained by the plaintiff in Walls. Plaintiff’s response, supplemented with exhibits of medical and employment records, posited that she was unaware that her injury constituted a serious bodily injury until the date of her surgery on May 14, 1997, therefore, and that under the Walls rule the statute of limitation should commence to run from that date.

Additionally, defendants contended in their motion for summary judgment that because plaintiff’s insurance policy did not provide first-party benefits, her cause of action for economic damages accrued by December 16, 1996, the first date upon which she missed work and suffered economic damages in the form of wage loss. Thus, defendants sought summary judgment on both economic and noneconomic claims claiming that each claim had accrued more than two years before plaintiff tolled the statute of limitations. Significantly, defendants suggested that date upon which the causes of action accrued could be different, i.e., noneconomic claims accrued on December 13, 1996, the date of the accident, and economic claims of wage loss accrued on December 16,1996, the date plaintiff first missed work.

At oral argument on December 27, 2000, defendants reputiated their position that Walls v. Scheckler controlled this case, distinguishing Walls on the basis that Walls “involved a claim for noneconomic pain and suffering damages only.” Supplement to motion for summary judgment of defendants Erie Paint Company and Andrew Elliot Overton at ¶8. Defendants rephrased their theory in support of their motion for summary judgment, specifically taking the position that plaintiff’s cause of action accrued on December 16, 1996, when she first suffered economic damage in the form of wage loss. According to this theory, the limitations period expired on December 16, 1998, 12 days before the plaintiff’s praecipe was filed.

In support, defendants filed with the court a supplement to motion for summary judgment of defendants Erie Paint Company and Andrew Elliot Overton on or about December 28, 2000. Plaintiff strenuously objected to this recast of defendants’ motion at oral argument and in her answer to defendants’ supplement to motion for summary judgment. Plaintiff suggests that the discovery rule should apply and there is neither precedent nor rationale for separating economic and non-economic claims for purposes of establishing the applicable limitations period. Plaintiff supplied the court with a copy of the complaint filed in the Walls case. The complaint reveals that economic (wage loss) claims were pleaded in that case, although as defendants point out, the precise issue herein was not addressed in the appellate decision.

Defendants in turn filed a reply to plaintiff’s answer to defendants’ supplement to motion for summary judgment on or about January 11, 2001. Plaintiff responded with an answer to defendants’ reply to plaintiff’s answer to defendants’ supplement to motion for summary judgment on January 11, 2001. The court is now fully apprised of the parties’ positions and the matter is ripe for determination.

Summary judgment may be granted in those cases where the pleadings, discovery and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Summary judgment should only be entered in those cases which are clear and free from doubt. Skipworth v. Lead Industries Association, 547 Pa. 224, 690 A.2d 169 (1997). The court must accept as true all well pleaded facts in the non-moving party’s pleadings, and give the non-moving party the benefit of all reasonable inferences. Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). The court must examine the record in the light most favorable to the non-moving party and resolve all doubt against the moving party as to the existence of a triable issue of fact. McCarthy v. Dan Lepore & Sons Co. Inc., 724 A.2d 938 (Pa. Super. 1998). Given these guiding principles, we turn to the facts.

Both plaintiff and defendants agree on one point: the two-year statute of limitation for personal injury actions, 42 Pa.C.S. §5524, however modified by the discovery rule, will apply alike to all claims whether non-economic or economic. Thus, the date of accrual of economic claims will not differ from the date of accrual of a cause of action for noneconomic claims.

Defendants contend that the date of accrual for all claims arises when the first aspect of any claim becomes apparent to the plaintiff, i.e., in this case when plaintiff first missed work and knew she had at least a wage loss claim under her insurance policy. Thus, defendants suggest that the later discovery of a serious bodily injury is of no relevance in determining the date of accrual of plaintiff’s claims for the purpose of determining the applicable statute of limitations.

Plaintiff, by contrast, posits that the discovery rule must apply and the economic cause of action in essence is tied to the noneconomic cause of action. Plaintiff contends that the practical ramifications of defendants’ theory would create difficult, confusing, and inefficient processing of litigation in limited tort cases. A plaintiff subject to the limited tort necessity to prove serious bodily injury before bringing noneconomic claims would have filed suit for economic claims, which might be well advanced by the time a serious bodily injury were discovered. Pleadings, discovery, and settlement negotiations might all need to be recommenced. Plaintiff raises the possibility that a case could be tried on an economic basis before the serious nature of an injury could be determined and thus forever bar plaintiff’s cause of action for noneconomic damages under a limited tort policy.

Defendants cite cases for the proposition that a cause of action arises when a plaintiff becomes aware of the first item of compensable injury. See e.g., Romah v. Hygienic Sanitation Co., 705 A.2d 841, 857-58 (Pa. Super. 1997), aff’d, 558 Pa. 378, 737 A.2d 249 (1999) (“The statute begins to run when the injured party ‘possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to determine whether he is entitled to redress’ . .. .”); Sterling v. Saint Michael’s School for Boys, 442 Pa. Super. 437, 440, 660 A.2d 64, 66 (1995); alloc. denied, 543 Pa. 695, 670 A.2d 142 (1995) (discovery rule inapplicable to plaintiff who knew he had been hit in the eye with a shoe and injured, but was unaware of the extent of that injury until some weeks later); Bradley v. Ragheb, 429 Pa. Super. 616, 623-24, 633 A.2d 192, 196 (1993), alloc. denied, 540 Pa. 627, 658 A.2d 791 (1994) (rejecting the contention of a medical malpractice plaintiff that the discovery rule should operate to commence the running of the limitations period from the date that plaintiff learned of the risks of late diagnosis of cancer, when plaintiff had failed to inquire into those risks when diagnosed); Saft v. Up-

per Dublin Township, 161 Pa. Commw. 158, 161-62, 636 A.2d 284, 286 (1993) (home buyers’ causes of action based upon governmental defendants’ alleged failures prior to the passage of the governmental immunities law did not accrue until buyers purchased their homes and so were barred by law).

These cases are not persuasive as they do not concern the accrual of causes of action in limited tort cases. They do not shed light on the difficulty raised in this case by a statute that operates to defer the accrual of a cause of action until plaintiff can establish a threshold level of injury.

More persuasive is the case of Bond v. Gallen, 503 Pa. 286, 469 A.2d 556 (1983), in which the Supreme Court of Pennsylvania held that “the two-year statute of limitations on tort actions allowed by the No-Fault Act does not begin to run until the claimant knows or, exercising reasonable diligence, should know that the claimant’s medical and/or dental losses exceed a threshold specified in section 301(a) of the [No-Fault] Act.” Bond, 503 Pa. at 290, 469 A.2d at 558. The court was not unaware of the difficulty that this holding might create for a defendant in dealing with problems of proof long after an accident. Because the statutory threshold created the possibility that a claimant might not discover a cause of action until sometime after the accident, the cause of action could not accrue from the date of the accident.

The Motor Vehicle Financial Responsibility Law likewise creates thresholds. Section 1705(d) requires a limited tort plaintiff to reach a “serious bodily injury” threshold before she can make a claim for noneconomic damages. Section 1712 provides that a claimant for first-party benefits cannot recover wage loss economic losses until after the claimant has reached a threshold of five days of lost work. Interestingly, had plaintiff herein been a pedestrian struck by defendant Overton, and therefore eligible to collect first-party economic benefits, her right to those benefits would not have accrued until she had missed five days of work. As she only missed three days in December 1996, the limitations period would not have commenced to run in December 1996.

We are unwilling to hold that the statute of limitation commences to run when a plaintiff suffers her first economic loss, no matter how de minimis. This rule would defeat the purpose of the limited tort threshold, requiring a lawsuit to be filed defensively even where the damages do not justify the costs of the suit. Moreover, the progression of litigation of limited tort cases will not be served by requiring a race to the courthouse with subsequent delays for amendments to the pleading, reopening discovery periods and the like. Finally, a plaintiff should not be placed in the difficult choice of deciding whether to file suit for minimal economic damages, which commences the running of the statute of limitations and may preclude a later amendment of the pleadings for noneconomic damages, or foregoing economic damages upon the speculation that a minor injury may later be determined to reach the serious bodily injury threshold. In a limited tort case, where the plaintiff must meet a statutory threshold of serious bodily injury to bring a claim for noneconomic damages, all causes of action accrue on the date that the noneconomic cause of action accrued.

We now turn to the application of the discovery rule to plaintiff’s noneconomic claim. A statute of limitation may be tolled in a situation where a plaintiff is unable, despite the exercise of due diligence, to discover her injury or its cause within the requisite limitation period. Pocono International Raceway v. Pocono Produce, 503 Pa. 80, 84-85, 468 A.2d 468, 471 (1983). Moreover, because plaintiff had elected limited tort coverage, she was prohibited from raising a noneconomic claim until she could prove a serious bodily injury. Walls v. Scheckler, 700 A.2d 532, 533 (Pa. Super. 1997). Injuries consisting of muscle bruising, soreness and associate pain would not have sufficed to meet the serious bodily injury threshold. Id.; Dodson v. Elvey, 445 Pa. Super. 479, 484, 665 A.2d 1223, 1225 (1995).

Plaintiff has produced sufficient facts to raise a genuine issue of material fact concerning whether she should have understood the serious nature of her injury prior to her first surgery on May 14, 1997. In this case, the plaintiff did not have a cause of action for noneconomic damages as a result of the accident; she necessarily had to ascertain that her injury met the statutory threshold of a serious bodily injury. A jury could conclude from the evidence presented that the plaintiff did all that due diligence required: she immediately sought treatment at a hospital, returned to another hospital the following day, received two x-rays revealing no fractures, sought treatment from her doctor within the first week following the accident, and pursued the physical therapy recommended by her physician until the pain she was experiencing degenerated into numbness. A jury could conclude that the plaintiff underwent additional tests in early April 1997, but did not receive a definitive diagnosis until after her surgery on May 14, 1997.

A genuine issue of material fact having been raised as to when plaintiff, in the exercise of due diligence, should have known that she had suffered a serious bodily injury.

For the foregoing reasons, the court enters the following order:

ORDER

And now, January 24, 2001, defendants’ motion for summary judgment is denied.

      . Both defendants have been jointly represented throughout this case.

      . The parties do not agree on the relevant basis for the two-year statute of limitation. Defendants cite to subparagraph 7 of 42 Pa.C.S. §5524 whereas plaintiff cites to subsection 2. Plaintiff is correct. Walls v. Schekler, 700 A.2d 532, 533 (Pa. Super. 1997).


author: MINORA, J.,

text:
    J.A. v. St. Joseph’s Children’s & Maternity Hospital

      C.P. of Lackawanna County,
    no. 93 CV 4439.

      Lisa R. Schwartz, for plaintiffs.

      Sidney J. Prejean, for defendant.
    January 18, 2001
   MINORA, J.,

I. INTRODUCTION

The current matter before the court is the plaintiffs’ motion for leave to file an amended complaint to include a separate cause of action on behalf of the plaintiff, J.A. Jr. Before we get to the merits of the motion, some procedural and factual background is in order.

On March 15, 1994, the original plaintiffs (J.A. and M.A., his wife, as parents and natural guardians of J.A. Jr., then a minor, and J.A. and M.A., his wife, in their own right) filed a complaint against the defendant alleging, inter alia, defendant intentionally and fraudulently misrepresented the health of the child (J.A. Jr.) and the birth mother’s lifestyle history at the time of the adoption of the child. The complaint alleges breach of contract, and various torts against the defendant.

On or about May 9, 1994, defendant filed its answer to the complaint, denying generally and specifically all allegations of wrongdoing on its part in the course of the adoption. In its new matter, defendant has raised the statute of limitations, failure to state a claim upon which relief can be granted and plaintiffs’ lack of standing.

On or about November 16, 1994, the plaintiffs filed their reply to the defendant’s new matter and the pleadings seemed closed at that time.

Voluminous and extensive discovery ensued for the next five to six years. A pretrial conference was scheduled for April 28, 2000 before the Honorable Michael J. Barrasse. The plaintiffs apparently canceled the pretrial conference.

On September 22, 2000, plaintiffs’ counsel appeared at Lackawanna County Court en banc seeking leave to file an amended complaint. The undersigned, on that date, granted a rule to decide if said amended complaint should be allowed. Both sides have submitted their respective briefs and the court also entertained oral argument thus rendering this matter of the proposed amended complaint ripe for disposition.

By way of factual background, according to the pleadings and discovery alleged by the plaintiffs, the following events took place.

On or about June 8, 1977, plaintiff-parents applied to defendant, St. Joseph’s Center, to adopt a normal healthy child. At the time of placement, the defendant had the baby’s hospital chart and employed a physician who examined J.A. Jr. before the placement. At the time of the adoption, the defendant reported to the plaintiffs that the child was a male Caucasian born November 2, 1981. They reported it was a normal, spontaneous delivery, at 36 weeks gestation. They reported the birth weight was four pounds, nine ounces with a length of 18 inches. Lastly, they reported there were no abnormalities noted at birth or upon later physical examination.

Prior to St. Joseph’s approval of Mr. and Mrs. J.A. to adopt, they were required to submit medical certifications to St. Joseph’s Center. The medical certification of the mother-plaintiff indicated she suffered from chronic hypertension, diabetes mellitus and exogenous obesity. Mrs. J.A.’s medical certification further indicated these were chronic illnesses that would decrease her life span. Apparently, there was no indication St. Joseph’s Center took further steps to ascertain J.A. and M.A.’s fitness to care for a child with special needs.

When J.A. Jr. was bom on November 2, 1981, he remained hospitalized until at least November 25, 1981. No discharge summary exists in J.A. Jr.’s chart from which we can discern exactly when he was discharged. During the hospitalization, J.A. Jr. suffered from prematurity, fever, cyanosis, bradycardia, apnea, jaundice and shallow respirations. He was also on oxygen, suffered moderate ventilation profusion abnormalities and intermittently displayed a rigid body.

By way of the proposed amendment to the complaint, J.A. Jr. seeks to pursue his own negligent adoption claim. He claims discovery in this matter supports his allegation that the defendant’s intentional misrepresentation concerning his medical history caused him to be placed with a couple who neither desired nor were capable of caring for a child with special needs resulting from fetal alcohol syndrome. The essence of the adoptive parents’ claim is based on the defendant’s documentation indicating that the birth mother ingested alcohol and marijuana during her pregnancy as well as the baby’s prolonged hospitalization immediately after birth. Plaintiffs also indicate that no further discovery would be needed if this amendment was allowed.

II. ISSUE(S)

(A) Did the cause of action purported to be alleged by J.A. Jr. in his proposed amended complaint accrue after the enactment of the Minor’s Tolling Statute (42 Pa.C.S. §5533)?

(B) Assuming the proposed amendment is not time-barred, does said amendment to the complaint set forth a cognizable claim on behalf of J.A. Jr. in the context of wrongful adoption?

(C) Assuming that J.A. Jr.’s proposed cause of action is not time-barred and is cognizable under Pennsylvania law, should said motion to amend be denied because plaintiffs’ counsel is conflicted from pursuing a claim on behalf of the child which is in direct opposition to the claim previously sought on behalf of the parents?

HI. DISCUSSION

(A) In general, Pennsylvania Rule of Civil Procedure 1033 governs the amendment of pleadings and states: may be made to conform the pleadings to the evidence offered or admitted.” Pa. R.C.P. 1033.

“A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleadings, even though they give rise to a new cause of action or defense. An amendment

Amendments to complaints are permitted pursuant to Pa.R.C.P. 1033 by leave of court and that decision about whether to allow an amendment is within the discretion of the trial court. City of Philadelphia v. White, 727 A.2d 627, 630 (Pa. Commw. 1999). Generally, it is the duty of the plaintiff to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right to recovery is based and to bring suit before the statute of limitations has run. Hamilton v. Bechtel, 441 Pa. Super. 390, 395, 657 A.2d 980, 982-83 (1995), citing Hayward v. Medical Center, 530 Pa. 320, 608 A.2d 1040 (1992). The Supreme Court of Pennsylvania has held that an amendment introducing a new cause of action will not be permitted after the statute of limitations has run in favor of a defendant because it would constitute resulting prejudice to the adverse party. Schaffer v. Larzelere, 410 Pa. 402, 407, 189 A.2d 267, 270 (1963). However, if the proposed amendment does not change the cause of action but merely amplifies that which already has been averred, it should be allowed even though the statue of limitations has already been run. Id.

The policy of Pennsylvania courts is that amendments to pleadings should be liberally allowed in order to secure a determination of cases on their merits, except in those instances where surprise or prejudice to the other party would result or where the proposed amendment is against a positive rule of law. Tanner v. Allstate Insurance Co., 321 Pa. Super. 132, 137, 467 A.2d 1164, 1167 (1983). Prejudice must be something more than a detriment to the other party, for to make an advantage operate as a bar to amendment would be to destroy the right to amend in all cases, except in cases when the moving party would have no reason to amend. Cellutron Products Corp. v. Stewart, 223 Pa. Super. 391, 394, 300 A.2d 900, 901-902 (1972); Lynady v. Community Medical Center, 101 Lacka. Jur. 443, 444-445 (2000).

Intertwined with those general principles governing amendment of pleadings is the statute of limitations and the Minor’s Tolling Statute (42 Pa.C.S. §5533(b)) which became effective June 29, 1984 after the birth in November 1981.

42 Pa.C.S. §5533(b) states in pertinent part:

“(b) Infancy. — If an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall be deemed a portion of the time period within which the action must be commenced. Such person shall have the same time for commencing an action after attaining majority as is allowed to others by the provisions of this subchapter. As used in this subsection the term ‘minor’ shall mean any individual who has not yet attained the age of 18.” (emphasis added)

We agree that the proposed cause of action on behalf of J.A. Jr. could not and did not accrue until October 16, 1991. (The first time a diagnosis of fetal alcohol syndrome was discovered by Dr. Kenneth Lillik—see exhibit “E” to plaintiffs’ brief in support of the motion for leave to file an amended complaint.)

Since October 16, 1991 is the earliest date the plaintiff, J.A. Jr., could have reasonably discovered his injury, his cause of action by virtue of the discovery rule would not have accrued to him until that time. Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997); Pocono International Raceway v. Pocono Produce Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983); Redenz by Redenz v. Rosenberg, 360 Pa. Super. 430, 435, 520 A.2d 883, 885 (1987); Berardi v. Johns-Manville Corp., 334 Pa. Super. 36, 482 A.2d 1067 (1984).

Since the Minor’s Tolling Statute was in effect as of October 16, 1991 (42 Pa.C.S. §5533(b) becoming effective on June 29, 1984) his claims would remain viable until November 2, 2001. This is so because J.A. Jr. was bom on November 2, 1981 and he reached the age of 18 on November 2, 1999. Therefore, he would have until November 2, 2001 to file his claim under a general two-year statute of limitations for tort. (See 42 Pa.C.S. §5524.)

By virtue of the application of the discovery rule above, plaintiff J.A. Jr.’s proposed amendment would not be time-barred.

(B) The next hurdle for J.A. Jr. is to determine if his proposed amendment sets forth a cognizable cause of action and does not violate a positive rale of law. (See Tanner v. Allstate Insurance Co., supra at p. 146.)

It is true that J.A. Jr.’s proposed claim may present a novel claim or theory of liability. However, the mere novelty of a claim does not automatically merit its dismissal. Neff v. Lasso, 382 Pa. Super. 487, 490, 555 A.2d 1304, 1305 (1989), alloc. denied, 523 Pa. 637, 565 A.2d 445 (1989).

To establish the viability of J.A. Jr.’s potential claim would require a “duty” and “foreseeability” analysis. To begin with, whether a defendant owes a duty of care to a plaintiff is a question of law. Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1993). “It has long been hornbook law that a duty arises only when one engages in conduct which foreseeably creates an unreasonable risk of harm to others.” Amarhanov v. Fassel, 442 Pa. Super. 111, 115, 658 A.2d 808, 810 (1995).

Duty, as a concept, is a flexible notion. In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than the sum total of those considerations of public policy which led the law to say that the particular plaintiff is entitled to protection from the harm suffered. Troxel v. A.I. Dupont Institute, 450 Pa. Super. 71, 82, 675 A.2d 314, 319-20 (1996); Gardner by Gardner v. Consolidated Rail Corp., 524 Pa. 445, 453, 573 A.2d 1016, 1020 (1990); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).

Furthermore, duty is only a word with which we state our conclusion that there is or is not to be liability. It necessarily begs the question. Id. To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to changing times. Id.

Moreover, a higher duty of care is imposed when a “special relationship” exists such as in this adoption setting. See Huddleston v. Infertility Center of America Inc., 700 A.2d 453 (Pa. Super. 1997); Stiver v. Parker, 975 F.2d 261 (6th Cir. 1992); Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

Certainly, a “special relationship” exits in the adoption setting present in this case between the adoption entity (St. Joseph’s Center), its client participants (J.A. and M.A.) and most especially the child himself (J.A. Jr.). See Huddleston, supra; Kleinknecht, supra.

Therefore, in light of the special relationship that exists between the parties and a modem and expanding view of the changing family unit and how it’s composed and created we do find that a legal duty exists between J.A. Jr. and St. Joseph’s Center.

However, the analysis does not end with “duty.” We must now determine whether the harm suffered in this case was reasonably foreseeable. Huddleston, supra.

In the context of duty, the concept of foreseeability means the likelihood of the occurrence of a general type of risk rather than the likelihood of the occurrence of the precise claim of events leading to the injury. Kleinknecht, supra; Huddleston, supra.

Although it is true that a defendant is not required to guard against every possible risk, he must take reasonable steps to guard against hazards which are generally foreseeable. Id.

Even intervening criminal conduct has been ruled not to preclude foreseeability and whether or not such conduct would be a superseding cause is for a jury to determine in all but the clearest cases. Powell v. Drumheller, 539 Pa. 484, 653 A.2d 619 (1995); see also, Huddleston at 460.

We agree with the plaintiffs that whether or not it is reasonably foreseeable that J.A. Jr. with his medical history both before and after birth would suffer if placed with a couple physically unable to care for his special needs is a question of fact which requires the jury’s careful deliberation. We agree J.A. Jr.’s harm resulting from the alleged wrongful placement could be found to be a reasonably foreseeable injury in the special context of adoption. We therefore feel that a “special relationship” together with the foreseeability;of the harm establishes that defendant, St. Joseph’s Center, owed a duty of care to J.A. Jr. in placing him for adoption. The issue remaining would be whether the defendant breached that duty.

Therefore, J.A. Jr.’s proposed amended complaint is not only timely as set forth in section “A” above but also presents a cognizable claim under Pennsylvania law.

(C) The last issue presented by defense counsel at argument is that plaintiffs’ motion to amend should be denied because plaintiffs’ counsel is conflicted from pursuing a claim on behalf of the child which is in direct opposition to the claim previously sought on behalf of the parents.

The defense claims the original complaint, filed by counsel on behalf of the parents, alleges, in general, “St. Joseph’s Center gave us a damaged child.” They claim that the amended complaint adds, on behalf of the child, the antagonistic and contradictory claims, “St. Joseph’s Center gave me inadequate parents.”

This conflict issue is premature at this point. What is before the court is plaintiffs’ motion to amend the complaint and address the issues of the validity and timeliness of the proposed amendment and the issue of whether or not the proposed amendment sets forth a viable cause of action all of which we have addressed in sections “A” and “B” above.

Pennsylvania law allows alternative pleading. (See Pa.R.C.P. 1020.) PennDot v. Manor Mines Inc., 523 Pa. 112, 565 A.2d 428 (1989).

The issue of whether or not the current counsel may have such a conflict so as to preclude continuing representing both the parent-plaintiffs (J.A. and M.A.) and the child-plaintiff (J.A. Jr.) is not germane to the amendment issue before us at this time, (emphasis added)

We are not saying this is an issue to be ignored. This conflict issue may have to be revisited at some future time, but it is not currently a bar to the proposed amended complaint.

An appropriate order consistent with this memorandum will follow.

ORDER

And now to wit, January 18, 2001, upon consideration of plaintiffs’ motion for leave to file an amended complaint and upon due consideration of the able written and verbal arguments of both counsel and in accordance with the foregoing memorandum, it is hereby ordered and decreed that the plaintiffs are granted leave to file their proposed amended complaint within 20 days from the date of the order.


author: GARDNER, P.J.,

text:
    Hannis v. Sacred Heart Hospital

      C.P. of Lehigh County,
    no. 1996-C-0965.

      Neil E. Durkin, for plaintiffs.

      Georgine A. Olexa, for defendant Sacred Heart Hospital.

      Danielle S. Dinsmore, for defendant Rios.

      Patricia A. Siemiontkowski, assistant city solicitor, for potential parties City of Allentown and Allentown Bureau of Health.
    December 29, 2000
   GARDNER, P.J.,

This matter is before the court on plaintiffs’ motion to compel the Allentown Bureau of Health to produce the names of possible class members as defined in the court’s order of June 20, 2000 presented September 6, 2000.

On September 5, 2000, potential parties City of Allentown and the Allentown Bureau of Health filed an answer in opposition. The answer was styled, City of Allentown and Allentown Bureau of Health’s answer in opposition to plaintiffs’ motion to compel the production of records maintained by the Allentown Bureau of Health pursuant to the Disease Prevention Control Act of April 23, 1956.

Defendants Sacred Heart Hospital and Nestor Rios M.D. did not file any formal objection, nor take any position on plaintiffs’ motion.

Oral argument was held before the undersigned September 6, 2000. For the reasons expressed below, we deny plaintiffs’ motion to compel.

Plaintiffs Randy Hannis and Dawn Hannis, as parents and natural guardians of Devyn Hannis, a minor; Robert Kline and Gina Kline, as parents and natural guardians of Mason Kline, a minor; Trinette Kraftician, as parent and natural guardian of Briana Kraftician, a minor; Lisa Kozero, as parent and natural guardian of Joseph A. Kozero, a minor; and Valerie Santiago, as parent and natural guardian of Elijah Holmes Santiago, a minor, are class representatives who are prosecuting this class action lawsuit on behalf of all class members similarly situated.

Plaintiffs brought this action in negligence and professional negligence against defendant Nestor Rios M.D., a pediatrician, and defendant Sacred Heart Hospital which employed him. Plaintiffs allege that Dr. Rios treated them, or had other contact with them, at a time when he knew or should have known, that he had infectious tuberculosis, without advising them of his condition or taking other precautions to protect them from exposure to the disease.

Plaintiffs allege that some of the numerous people who were exposed to Dr. Rios either contracted tuberculosis, or were required to undergo prophylactic antibiotic treatment as a result of their exposure. Plaintiffs also contend that the hospital permitted Dr. Rios to treat them, and failed to warn them or protect them, when it knew, or should have known, that Dr. Rios had infectious tuberculosis.

By order and accompanying opinion of the undersigned dated June 20, 2000, we granted plaintiffs’ motion for class certification. In our order, we defined the potential class as:

“All persons, including minors, parents of minors, and adults, who: (1) between November 1, 1995 and February 21, 1996 at Sacred Heart Hospital or the Sacred Heart Hospital Clinic, both in Allentown, Pennsylvania, or elsewhere, came into direct contact with, were exposed to, or were in close proximity with, Nestor Rios M.D., at a time when Dr. Rios was infected with active tuberculosis; (2) were identified by the Allentown Health Bureau as having been in direct contact with, exposed to, or in close proximity with, Nestor Rios M.D. during that period; (3) were administered blood tests, tuberculin skin tests or x-rays as a result of these contacts with, or exposure to, Nestor Rios M.D.; and (4) either: (A) tested positive for tuberculosis and were medically treated for the condition; or (B) received prophylactic antibiotic medication therapy with the antibiotics Rifampin or Isoniazid, or other medication, and who have suffered adverse side effects from the medication, including (i) nausea; (ii) vomiting; (iii) loss of appetite; (iv) irregular stool; (v) irregular urine; (vi) abdominal cramps; (vii) flu symptoms; (viii) fatigue; (ix) discoloration of the skin; (x) skin rashes; (xi) headaches; (xii) drowsiness; (xiii) dizziness; (xiv) disturbed vision; (xv) impaired hearing; (xvi) numbness; or (xvii) tingling.”

In the within motion, plaintiffs’ contend that they need the names of the 277 individuals identified by the bureau who were exposed to Dr. Rios and received antibiotic treatments. Plaintiffs assert that the bureau has refused to provide the names of these 277 persons previously identified. The bureau contends that the documents containing the names of the persons identified by the bureau as having been in direct contact with, exposed to, or in close proximity with, Dr. Rios between November 1, 1995 and February 21, 1996 are documents which are privileged, protected and confidential under the Disease Prevention and Control Act.

Plaintiffs contend that the Allentown Bureau of Health is the only entity with the information from which the identities of the class members can be obtained. Plaintiffs further contend that without the information, not only will they be unable to identify and notify the persons who fit the definition of the class set forth by the court, but also that these people may lose valuable rights to compensation as a result of the alleged negligence of the defendants. Moreover, plaintiffs assert that the court can fashion an appropriate order through which the confidentiality of the potential class members can be maintained, without denying them the right to be notified of their potential interest in this matter.

Potential parties the City of Allentown and Allentown Bureau of Health contend that they are precluded from disclosing the names of the 277 identified persons pursuant to section 521.15 of the Act. Section 521.15 provides in pertinent part:

“Section 521.15. Confidentiality of reports and records
“State and local health authorities may not disclose reports of diseases, any records maintained as a result of any action taken in consequence of such reports, or any other records maintained pursuant to this act or any regulations, to any person who is not a member of the department or of a local board or department of health, except where necessary to carry out the purposes of this Act.” 35 P.S. §521.15.

The bureau further contends that assisting plaintiffs in the identification of class members does not further the purposes of the Act. The bureau asserts that plaintiffs are seeking to punish defendants for their alleged negligence in this incident. Plaintiffs contend that such punishment will deter other potential tort-feasors from acting negligently. The bureau argues that this is not the purpose of the Act.

The bureau relies on the decision of the Supreme Court of Pennsylvania in Commonwealth v. Moore, 526 Pa. 152, 584 A.2d 936 (1991), to support its contention that it cannot disclose the names of the 277 persons who may fit into the proposed class. For the following reasons, we agree.

Commonwealth v. Moore involved a request by the Commonwealth of Pennsylvania for medical records from the Allegheny County Health Department for use in a criminal prosecution. Applying section 521.15 of the Disease Prevention and Control Act, the Supreme Court of Pennsylvania ruled that the Act precluded disclosure of the records.

In Moore, defendant was charged with rape, statutory rape, indecent assault and corruption of minors. The Commonwealth of Pennsylvania had reason to believe that defendant had received treatment for gonorrhea at the Allegheny County Health Department. The victim had been diagnosed as having contracted gonorrhea. Therefore, the Commonwealth asserted that evidence that defendant had the same disease at the time of the incident would be material and relevant to the prosecution. 526 Pa. at 155, 584 A.2d at 938.

The Superior Court of Pennsylvania in Moore remanded the case to the trial court for an order directing the Allegheny County Health Department to produce medical records of the defendant, which the Superior Court determined were necessary for the administration of justice. 378 Pa. Super. 379, 381, 548 A.2d 1250, 1251 (1988).

In reversing the Superior Court, the Supreme Court of Pennsylvania concluded that the language of the Act would preclude disclosure of the records unless, in the language of the Act, disclosure was “necessary to carry out the purposes of this Act.” The Supreme Court noted that “the act contains no separate, explicit statement of purpose beyond the title.” 526 Pa. at 158, 584 A.2d at 939.

Nevertheless, the Supreme Court discerned that the purposes of the Act were “to assign primary responsibility for the prevention and control of diseases to local health departments, and to institute a system of mandatory reporting, examination, diagnosis, and treatment of communicable diseases.” 526 Pa. at 158, 584 A.2d at 940.

The Supreme Court further stated, “We fail to understand how any of these purposes would be furthered by the disclosure of reports to assist in the prosecution of an alleged sex offender.” The court also noted that “the general powers of the courts do not include the power to order disclosure of materials that the legislature has explicitly directed to be kept confidential.” Id.

In the case before this court, we find that plaintiffs’ class action lawsuit does not further the purposes of the Disease Prevention and Control Act. We are not unmindful of the importance of protecting potential class members’ rights in this tort action. Nevertheless, we must deny plaintiffs’ request.

As noted, plaintiffs contend that the proposed class is a group of 227 individuals who received antibiotic treatment because they were identified by the Allentown Bureau of Health as possibly being exposed to Dr. Rios while he was infected with tuberculosis. According to plaintiffs, this class consists of 220 children and 57 adults who suffered side effects from the antibiotic treatment. Apparently, however, plaintiffs do not have the names or addresses of most of these individuals; but presumably, the bureau does.

Accordingly, plaintiffs seek an order compelling the Allentown Bureau of Health to provide them the names and addresses of these persons as possible class members, or in the alternative, to compel the bureau to assist plaintiffs in mailing notices to these persons. Plaintiffs contend that the interests which these persons have in this tort litigation outweighs the interest which they have in keeping their identities confidential pursuant to the protections the legislature has afforded them under the confidentiality provisions of the Act.

However, based in part upon the decision of the Superior Court of Pennsylvania in V.B.T. v. Family Services of Western Pennsylvania, 705 A.2d 1325 (Pa. Super. 1998), appeal denied, 556 Pa. 430, 728 A.2d 953 (1999), we find that the purposes of the Disease Prevention and Control Act as articulated by the Supreme Court in Moore outweigh any interest the plaintiffs may have in pursuing the within tort litigation.

In V.B. T, the parents of a minor child filed a civil negligence action against Family Services of Western Pennsylvania and the foster parents of a foster child who had been placed with the foster parents by defendant Family Services. Plaintiffs sought damages for physical and sexual abuse which their young daughter allegedly suffered at the hands of the foster child who lived with the foster parents in plaintiffs’ neighborhood. Plaintiffs asserted that Family Services of Western Pennsylvania was negligent in several respects including failing to train the foster parents, failing to treat the foster child, and allowing a child with a history of abusive behavior to be placed in the neighborhood without warning the parents of children in the neighborhood.

Defendants in V.B.T. filed motions seeking protective orders. Defendants asserted that to answer plaintiffs’ complaint and to respond to plaintiffs’ discovery requests would require defendants to divulge statutorily protected confidential and privileged information. The statutory privileges involved included the sexual assault counselor privilege, the domestic violence counselor/advocate privilege, created by the confidentiality provision of the Protection From Abuse Act, confidentiality of records created by the Juvenile Act, and the confidentiality of materials, reports and records under the Child Protective Services Law.

The trial court in V.B. T. held that plaintiffs were entitled to discovery despite the protections afforded by the various statutory privileges. The trial court reasoned that plaintiffs’ interest in pursuing tort litigation outweighed the interests created by the statutory privileges.

The Superior Court of Pennsylvania reversed the trial court. The Superior Court concluded that the sexual assault counselor privilege and the domestic violence counselor/advocate privilege are absolute privileges which are not overcome even by the constitutional rights of a criminal defendant, much less by any right of a private plaintiff to seek a tort recovery.

The Superior Court also concluded that the confidentiality provisions of the Juvenile Act and the Child Protective Services Law are qualified privileges. These privileges are qualified because those statutes, by their own terms, create exceptions to the confidentiality of the records and materials. In that regard, the Superior Court determined that these qualified privileges cannot be overcome by a plaintiff’s interests in prosecuting a negligence claim against the defendants.

In the case of each qualified privilege, the Superior Court concluded that the interests protected by the privilege outweigh those of a plaintiff seeking money damages in a negligence action. 705 A.2d at 1327. The court also concluded that the statutory exceptions to confidentiality in the Juvenile Act allowing access to “any other person . . . having a legitimate interest in the proceedings” (42 Pa.C.S. §6307(7)) does not extend to an unrelated civil plaintiff seeking information about the proceedings for purposes of prosecuting a personal injury lawsuit based on a separate incident. 705 A.2d at 1331.

As stated by the Superior Court:

“Certainly the trial court is correct in recognizing that these privileges, or indeed any privilege, operates as an impediment to the search for truth. For this reason, ‘privileges are not lightly created nor expansively construed.’ [Citations omitted.] However, those privileges which are established by constitution, common law or statute are ‘designed to protect weighty and legitimate competing interests .... Thus where the legislature has considered the interests at stake and has granted protection to certain relationships or categories of information, the courts may not abrogate that protection on the basis of their own perception of public policy unless a clear basis for doing so exists in a statute, the common law, or constitutional principles.’ Commonwealth v. Moore, 526 Pa. 152, 159, 584 A.2d 936, 940 (1991) (‘[T]he general powers of the courts do not include the power to order disclosure of materials that the legislature has explicitly directed to be kept confidential.’) No such basis was found by the trial court or asserted by the plaintiffs in this case.” 705 A.2d at 1335.

In the instant case, we conclude that the confidentiality provision of the Disease Prevention and Control Act is a qualified privilege. It is qualified because section 521.15 of the Act, by its own terms, creates an exception to the confidentiality of the reports and records concerning diseases “where necessary to carry out the purposes of this Act.”

Accordingly, as did the Superior Court in V.B.T., we find that the legislature’s clear mandate here was to only permit disclosure of materials which further the intent of the Disease Prevention and Control Act. As articulated by the Supreme Court of Pennsylvania, that purpose was to assign primary responsibility for the prevention and control of diseases to local health departments, and to institute a system of mandatory reporting, examination, diagnosis, and treatment of communicable diseases.

While the interests of plaintiffs, which are geared toward vindication of their injuries, are important, our legislature and Supreme Court have made the judgment that attempting to remedy the serious problem of communicable diseases in our society (by encouraging the reporting and treating of those diseases) is of superior importance.

Therefore, we find that the purpose advanced by plaintiffs does not further the purposes of the Act as defined by the Supreme Court. Accordingly, we deny plaintiffs motion to compel.

We also reject plaintiffs’ alternative suggestion. Plaintiffs suggest that we direct the Allentown Bureau of Health to notify the prospective class members of their right to be included in the class action, by having the bureau forward to prospective class members a class notice to be prepared by plaintiffs. Under plaintiffs’ suggestion, those prospective class members who wish to preserve their confidentiality need not respond. Those who prefer to be included in the class could waive their confidentiality and opt into the class by responding to the notice.

Despite plaintiffs’ willingness to prepare all aspects of such notices, except the names and addresses which would be added by the bureau, and to reimburse the bureau for all expenses in connection with mailing such notices, the bureau is unwilling to do so. Because of the bureau’s status as a “potential party” to this litigation, it is not clear that this court has sufficient jurisdiction over the bureau to permit this court to issue such a directive to the bureau. Moreover, even if we have such authority, such an order would be of doubtful validity under the cases cited above.

We realize that our ruling will make it more difficult for plaintiffs to identify and notify members of the prospective class. But our ruling does not make it impossible for them to do so. Plaintiffs can advertise for prospective class members, and perhaps use sources other than the bureau to obtain the information.

Accordingly, we will amend our class certification order of June 20, 2000 and extend the discovery deadline for the purpose of identifying all class members and subclasses from October 31, 2000 until February 28, 2001. In addition, we will postpone until March 20, 2001 the previously scheduled hearing to establish the final definition of the class and any subclasses and to approve the class notices.

We will direct plaintiffs to provide the undersigned and all counsel with a proposed written class notice by March 5, 2001. Finally, we will require defendants to file a written acceptance of the proposed class notice, or file written objections thereto together with an alternate proposed written class notice, by March 15, 2001.

ORDER

Now, December 29, 2000, upon consideration of plaintiffs’ motion to compel the Allentown Bureau of Health to produce the names of possible class members as defined in the court’s order of June 20, 2000, which motion was presented September 6, 2000; upon consideration of the City of Allentown and Allentown Bureau of Health’s answer in opposition to plaintiffs’ motion to compel the production of records maintained by the Allentown Bureau of Health pursuant to the Disease Prevention and Control Act of April 23, 1956, which answer was filed September 5, 2000; upon consideration of the briefs of the parties; after oral argument held September 6, 2000, and for the reasons expressed in the accompanying opinion,

It is ordered that plaintiffs’ motion to compel the names of possible class members is denied.

It is further ordered that all class discovery for the purpose of identifying all class members and subclasses shall be completed by February 28, 2001.

It is further ordered, pursuant to Pa.R.C.P. 1711 and 1712, that on March 20, 2001 at 10 o’clock a.m. in courtroom 2, Lehigh County Courthouse, a hearing shall be held before the undersigned to designate the names and addresses of all class members; to establish the final definition of the class and any subclasses; to specify the class members to be notified; to specify the type and content of the notice to be used; to establish the method of service of the notice upon the class; to fix the date by which class members must file a written election to be excluded from the class; to designate in the notice a person or persons to answer inquiries from, furnish information to, or receive comments from, members or potential members of the class with respect to notice; and to address such other procedural matters as may advance the efficient disposition of the within class action.

It is further ordered that on or before March 5, 2001 plaintiffs shall provide all counsel and the undersigned with a proposed written class notice pursuant to Pa.R.C.P. 1711, 1712 and this order for approval by the court.

It is further ordered, pursuant to Pa.R.C.P. 1712(c), that on or before March 15, 2001 defendants shall file a written acceptance of the proposed class notice, or file written objections thereto together with an alternate proposed written class notice.

      . On August 17,2000, plaintiffs served counsel for each party with a copy of plaintiffs’ motion to compel (See certificate of service attached to plaintiffs’ motion). On September 6,2000, plaintiffs formally presented and argued their motion before the undersigned in motion court. One day earlier, on September 5,2000, the potential parties formally filed their answer to plaintiffs’ motion.

      . By our order of June 20,2000, we denied the request to designate as class representatives Luis Rodriguez and Elizabeth Rodriguez, as parents and natural guardians of Catalina Rodriguez, a minor; Harold Rockman; and Claudette Jenson. At this point, however, those plaintiffs remain in the case on their individual claims and as potential class members.

      . Pursuant to our June 20,2000 order, the grant of class certification was conditional. The class certification order provided that after additional class discovery is completed, and before a decision on the merits, the class certification may be revoked, altered or amended by the court on its own motion, or on the motion of any party.

      . As noted in our opinion granting class certification, there were 220 children and 57 adults identified by the Allentown Bureau of Health as having received antibiotic treatment as a result of possibly being exposed to Dr. Rios.

      . Act of April 23,1956, P.L. (1955) 1510, §15, as amended, 35 P.S. §521.15.

      . The legislature in 42 Pa.C.S. §8723 empowered the Commonwealth Court of Pennsylvania to enter an order providing access to confidential information in the possession of a Commonwealth agency if the petitioner is engaged in an ongoing investigation of criminal activity. The Allegheny County Health Department is not a Commonwealth agency. The Supreme Court of Pennsylvania reasoned in Moore that if the courts had such general power (to order disclosure of materials that the legislature has specifically directed to be kept confidential), then the specific grant of power to the Commonwealth Court in 42 Pa.C.S. §8723 to order disclosure of confidential materials in the possession of state agencies, would be entirely unnecessary. 526 Pa. at 158, 584 A.2d at 940.

      .42 Pa.C.S. §5945.1.

      .23Pa.C.S. §6116.

      .42Pa.C.S. §6307.

      .23 Pa.C.S. §§6301-6385.

      . Another exception created by the language of section 521.15 of the Act, not applicable to the facts of the within case, authorizes disclosure of reports and records of diseases to “a member of the department or of a local board or department of health.”