author: ALLISON, J.,

text:
    East Lampeter Township v. County of Lancaster
    C.P. of Lancaster County,
    no. 5178-1996.

      Elizabeth A. Hambrick-Stowe, for plaintiff.

      Christina L. Hausner, Michael Jay Minney and Gerald S. Robinson, for defendants.

      January 11, 1999
   ALLISON, J.,

This matter is before the court on cross-motions for summary judgment filed by plaintiff East Lampeter Township and by defendants Lancaster County Human Relations Commission and Albert C. Hondares. East Lampeter Township has challenged the validity of Lancaster County ordinance no. 30 and regulation 4.9 of the rules and regulations promulgated by the Lancaster County Human Relations Commission. The township seeks declaratory relief through a determination that LCHRC lacks jurisdiction and permanent injunctive relief prohibiting LCHRC from proceeding under the authority of ordinance no. 30 and regulation 4.9 with respect to a complaint filed by Albert C. Hondares with LCHRC. Mr. Hondares’ complaint is based upon his allegation that East Lampeter Township’s denial of his 1992 petition to rezone amounted to “unfair zoning” and constituted discrimination in the area of housing/public accommodation based on his national origin.

In 1986, Mr. Hondares acquired two tracts of land in East Lampeter Township, each tract being separately described although conveyed on one deed. The two tracts are contiguous, with the front tract located at the intersection of Beechdale Road and Route 340. At the time the tracts were purchased by Mr. Hondares, both were zoned commercial. During his ownership, Mr. Hondares has utilized the front tract for a retail store. Through a comprehensive rezoning of the entire municipality in May 1990, the rear tract, then vacant, was rezoned to rural. Sometime between the adoption of the revised zoning ordinance in May 1990 and the filing of the petition to rezone in September 1992, Mr. Hondares applied for, and received, a permit to place a single-family dwelling on the rear tract, a permitted use in the rural district.

Mr. Hondares’ petition to rezone was brought to the township supervisors pursuant to sections 10609 and 10909.1(b)(5) of the MPC. Mr. Hondares petitioned to have the zoning of the rear tract changed from R (rural) to C-l (commercial). The petition to rezone was denied by the township. Mr. Hondares did not file a substantive validity challenge to the township’s revised zoning ordinance, nor did he institute curative amendment proceedings. Furthermore, Mr. Hondares has not applied for, or been denied, any permits or approvals from the township in connection with any commercial use of the rear tract, nor has Mr. Hondares been cited for any violation of township ordinances with respect to the current residential use of the rear tract.

As stated previously, the township has challenged the validity of Lancaster County ordinance no. 30 and regulation 4.9 of the rules and regulations promulgated by LCHRC. Ordinance no. 30 was adopted by the Lancaster County commissioners in an effort to foster the cause of civil rights protected by state and federal law, and provided for the establishment of the Lancaster County Human Relations Commission with appropriate enforcement powers under the exclusive jurisdiction of the County of Lancaster. Specifically, regulation 4.9 provides:

“(b) Activity by such governmental unit of the County of Lancaster which is prohibited when based upon a person or person’s protected class includes: . . .
“(2) An action taken by a governmental unit of the County of Lancaster. Prohibited actions include the consideration of the protected class of a person in the development or application of zoning and building codes, occupancy requirements, land use plans, comprehensive plans or long-range plans.”

In support of its position, plaintiff first argues that under the doctrine of separation of powers, the legislative action of the township in refusing to adopt Mr. Hondares’ petition to rezone is not subject to quasi-judicial review by a local administrative body such as the LCHRC. See Sharp v. Zoning Hearing Board of the Township of Radnor, 157 Pa. Commw. 50, 57, 628 A.2d 1223, 1226 (1993), alloc. denied, 536 Pa. 629, 637 A.2d 290 (1993) (stating that commissioners’ legislative process and decision to grant or deny a petition for rezoning is not subject to direct judicial review). The Commonwealth Court has stated that under the MPC, a landowner may request that the governing body of his municipality change its zoning ordinance to allow a certain use, “and the governing body, as a legislative prerogative, may grant [the] request.” In re Appeal of Merlino, 19 Pa. Commw. 143, 146, 339 A.2d 642 (1975). (emphasis added) Specifically, the MPC provides that “[t]he governing body of each municipality, in accordance with the conditions and procedures set forth in this act, may enact, amend and repeal zoning ordinances.” 53 P.S. §10601. (emphasis added) Plaintiff contends that the General Assembly intended that there would be no appeal from the act of adopting or denying a zoning ordinance amendment. In fact, under section 10909.1(b)(5) of the MPC, action by the governing body on proposed zoning amendments is expressly declared to be a legislative act: the governing body shall have exclusive jurisdiction to hear and render final adjudications in “[a]ll petitions for amendments to land use ordinances, pursuant to the procedures set forth in section 609. Any action on such petitions shall be deemed legislative acts....” 53 P.S. §10909.1(b)(5). (emphasis added)

Additionally, plaintiff cites Clover Hill Farms Inc. v. Lehigh Township Board of Supervisors, 5 Pa. Commw. 239, 242-43, 289 A.2d 778, 781 (1972), in which the appellant was planning to build a mobile home upon land it owned in a township which had no zoning. Id. at 240. Before the project got underway, a comprehensive zoning plan was adopted in the township which placed the appellant’s land in an agricultural district. Id. at 240-41. Appellant requested that the township board of supervisors rezone his property; the request was denied. Id. at 241. The refusal was appealed to the court of common pleas, who dismissed the appeal. Id. In affirming the lower court, the Commonwealth Court concluded: “The refusal of a legislative body to exercise its power to rezone is not subject to review by this or any other court. ‘From a careful study of the cases, we must hold that property owners have no remedy, when a body of township commissioners refuses to rezone.’ ” Id. at 243. The Clover Hill court further stated that a refusal to rezone does not mean that a landowner is out of remedies; rather, the landowner may, for example, request a variance, and if unsuccessful, take an appeal to the court, or may lodge a substantive validity challenge with a request for a curative amendment of the ordinance. Plaintiff East Lam-peter Township argues that either of these avenues would have been the appropriate action for Mr. Hondares to take to contest the denial of his petition to rezone.

To the contrary, defendants argue that the LCHRC is vested with the authority to review and determine claims such as that filed by defendant Hondares, irrespective of the fact that defendant is a municipality, and that the doctrine of separation of powers does not contemplate total separation of the three branches of government. See Grant v. GAF Corporation, 415 Pa. Super. 137, 162-63, 608 A.2d 1047, 1060 (1992), aff’d, 536 Pa. 429, 639 A.2d 1170 (1994) (stating that an administrative body may be vested with the authority to carry out administrative duties without violating the separation of powers doctrine). Defendants contend that as courts, for example, have recognized that the Pennsylvania Human Relations Commission has the authority to order schools to be integrated and to correct de facto segregation, notwithstanding the provisions of the Public School Code, so also the LCHRC in the instant case has the authority to act, notwithstanding the provisions of the MPC. Moreover, defendants argue that only granting a remedy of money damages for any discrimination which the LCHRC may find would not constitute the nullification of the legislative act of denying the petition to rezone. Mr. Hondares has never had his claim of discrimination reviewed; the alleged discrimination claim before the LCHRC is separate from the rezoning issue before the township, and can be isolated from the petition to rezone heard by the township.

After a careful review of the opposing positions, this court finds that to allow Mr. Hondares’ action to proceed before the LCHRC would be an undue intrusion into the legislative functions of the elected municipal officials. Mr. Hondares seeks the assistance of the executive branch, acting in a quasi-judicial capacity, to overturn what he claims was a discriminatory legislative act. While Mr. Hondares has several avenues along which to challenge the zoning of his property, quasi-judicial review is not one of them. See 53 P.S. § 11001-A. Pennsylvania law does not permit a landowner to elect to have such a review undertaken by a county human relations commission. See 53 P.S. §11001-A (“The procedures set forth in this article shall constitute the exclusive mode for securing review of any decision rendered pursuant to article IX or deemed to have been made under this act.”). Regardless of the relief Mr. Hondares is seeking, the integrity of the legislative function of the township supervisors is threatened by LCHRC action.

Finally, while Mr. Hondares wants the township’s decision on his petition to rezone to be investigated, he has not taken the appropriate procedural steps under the MPC to place the denial of his petition in a proper position for judicial review to see whether it would stand or fall on its own terms. See Appeal of Apgar from Board of Commissioners of Manheim Township, 661 A.2d 445, 448 (Pa. Commw. 1995). This court believes that under the separation of powers doctrine, the MPC is clear in stating that the action taken by the township supervisors on the petition to rezone was a legislative act, and as such cannot be reviewed by the LCHRC. Because this court finds no genuine issue of material fact, plaintiff is entitled to summary judgment as a matter of law. Pa.R.C.P. 1035.1.

Accordingly, we enter the following:

ORDER

And now, January 11,1999, after reviewing the cross-motions for summary judgment and the response thereto, the court enters the following order:

(1) The motion for summary judgment of defendants Albert C. Hondares and Lancaster County Human Relations Commission is denied.

(2) The motion for summary judgment of plaintiff East Lampeter Township is granted. The court declares regulation 4.9 to be invalid as applied to actions rendered under the Municipalities Planning Code. The proceedings in the Lancaster County Human Relations Commission on the complaint of Albert C. Hondares, no. 90-1993, are permanently enjoined. The commission is directed to dismiss Mr. Hondares’ complaint for lack of jurisdiction.

      . Ordinance no. 30 was adopted pursuant to the Pennsylvania Human Relations Act of October 27, 1955, P.L. 744, no. 222, §1, as amended, 43 P.S. §951 et seq.

      . The revised zoning ordinance was adopted pursuant to the authority and procedures set forth in the Pennsylvania Municipalities Planning Code, Act of My 3, 1968, P.L. 805, no. 247, as amended, 53 P.S. §10101 et seq.


source: Caselaw Access Project

author: LAVELLE, PJ,

license: Public Domain

text:
    ContiMortgage Corp. v. Castillo

      C.P. of Carbon County,
    no. 97-2874 J.D.

      David B. Comroe, for plaintiff.

      Peter M. Harer, for defendant Rina Castillo.
    June 18, 1999
   LAVELLE, PJ,

In this mortgage foreclosure action, defendant, Rina Castillo, has filed a petition to open the default judgment entered against her and to set aside the sheriff’s sale of her property located at 567-569 Hazard Road, in the Borough of Palmerton. For the reasons which follow, we will strike the judgment and set aside the sheriff’s sale.

From our review of the record and testimony, we make the following

FINDINGS OF FACT

(1) On November 10, 1995, Esteban Castillo and Rina Castillo executed a mortgage to Keystone State Mortgage Corporation in the principal sum of $52,000. This mortgage was recorded in Carbon County Record Book 638, at page 905, and was subsequently assigned to ContiMortgage Corporation, the plaintiff.

(2) The mortgage on its face describes the mortgaged premises as being “573 Hazard Road, Palmerton, Pennsylvania 18071,” the property occupied by Esteban Castillo.

(3) The legal description attached to the mortgage indicates that it is a blanket mortgage, encumbering not only 573 Hazard Road, but also premises known as 567-569 Hazard Road (although not specifically identified as such), which is the home occupied by Rina, as well as a third property located on Edgemont Avenue, and which was sold by Castillos some 20 years prior to the execution of the mortgage.

(4) All three properties were acquired by Castillos from Rina’s mother and are set forth in a single deed.

(5) The purpose of the mortgage loan was to pay off another loan and pay for repairs to Esteban’s property at 573 Hazard Road; no portion of the loan proceeds was received by Rina.

(6) Because this loan was to be exclusively for the benefit of Esteban, Rina would not have entered into the transaction had she known that her own home was being encumbered.

(7) Although the mortgage describes the Castillos as husband and wife, Castillos were, in fact, never married to each other.

(8) Rina has resided at 567 Hazard Road for the past 50 years and never lived at 573 Hazard Road.

(9) Castillos last cohabited about 30 years ago.

(10) The notice of intent to foreclose required by 41 RS. §403, as well as by the terms of the mortgage, was never received by Rina because it was sent to the wrong address.

(11) The sheriff attempted to serve Castillos by personally handing copies of the complaint in mortgage foreclosure to Esteban at 573 Hazard Road.

(12) Rina never authorized Esteban to accept service of process on her behalf.

(13) Rina first learned of these proceedings when someone anonymously mailed her a newspaper notice of the sheriff’s sale; at that point in time she believed that her own home was not the subject of the foreclosure.

(14) Rina is 74 years of age and has a seventh grade education.

DISCUSSION

Our initial inquiry must, of course, be whether this court ever acquired jurisdiction over the person of Rina. Without such jurisdiction, the entry of a default judgment and an execution upon such judgment are fatally flawed. Cintas Corporation v. Lee’s Cleaning Services Inc., 549 Pa. 84, 700 A.2d 915 (1997).

Our review of the record and the testimony leads us to the inescapable conclusion that this court never acquired jurisdiction over the person of Rina because of the defective service of the complaint in mortgage foreclosure. The sheriff’s return of service indicates that the complaint was delivered to Esteban, who is described in the return as Rina’s spouse. However, the uncontradicted testimony of Rina was that she was never married to Esteban, that they had not cohabited for some 30 years, that she had never resided at 573 Hazard Road, and that she never authorized Esteban to accept service of process on her behalf.

This evidence is sufficient to rebut the presumed validity of the sheriff’s return of service, and it clearly establishes that service was not effected in accordance with the requirements of Pa.R.C.P. 402.

It was the responsibility of ContiMortgage to determine the actual residence of Rina and to provide that address to the sheriff’s office for the purpose of effecting proper service of the complaint and writ of execution.

Having determined that jurisdiction over the person of Rina never attached because of lack of service of original process upon her, all subsequent proceedings, including the entry of the default judgment and the sheriff’s sale of 567-569 Hazard Road, are fatally flawed. As the Superior Court noted in another case involving defective service of process, “[i]f valid service has not been made and the defendant is wholly without notice of the proceedings against him, then the court has no personal jurisdiction over the defendant and is without power to enter a judgment against him.” Liquid Carbonic Corp. v. Cooper & Reese Inc., 272 Pa. Super. 462, 416 A.2d 549 (1979).

Even if we concede, arguendo, that the complaint in this matter was properly served, we would still be without subject matter jurisdiction because of the lack of service of the notice of intention to foreclose required by Act 6. Strict compliance with the provisions of Act 6 are a precondition to our acquiring jurisdiction over a mortgage foreclosure action. Bankers Trust Co. v. Foust, 424 Pa. Super. 89,621 A.2d 1054 (1993), appeal denied, 535 Pa. 635, 631 A.2d 1007 (1993). Rina testified that she never received a copy of this notice and that the recipient’s signature appearing on the certified mail receipt card was not her signature. At the hearing in this matter, we had the witness furnish a sample of her signature and that sample appears totally dissimilar to the signature on the receipt card.

Accordingly, we enter the following

ORDER

And now, June 18, 1999, upon consideration of the within petition to open judgment and set aside sheriff’s sale, it is hereby ordered and decreed as follows:

(1) The default judgment entered against defendant, Rina Castillo, on June 12, 1998, in the amount of $61,244.64 is hereby stricken insofar as said judgment relates to premises known as 567-569 Hazard Road, Palmerton, Carbon County, Pennsylvania.

(2) The sheriff’s sale held on September 4, 1998 is set aside insofar as it relates to premises known as 567-569 Hazard Road, Palmerton, Carbon County, Pennsylvania.

(3) The sheriff’s deed poll dated October 9, 1998 and recorded in Carbon County Record Book volume 786, at page 817, is hereby stricken insofar as said deed purports to convey title to premises known as 567-569 Hazard Road, Palmerton, Carbon County, Pennsylvania.

(4) Since petitioner has not challenged the judgment or execution sale of any property other than 567-569 Hazard Road, the relief being granted herein is hereby expressly limited to that property.

      . Our inspection of the Palmerton Telephone Directory revealed a listing for “M. Costello” at 567 Hazard Road, a fact easily ascertainable by the plaintiff.


author: TURGEON, J.,

text:
    Boyd v. Hershey Medical Center

      C.P. of Dauphin County,
    no. 2386 S 1993.

      William A. Atlee Jr., for plaintiffs.

      Grant M. Fleming, for defendants.
    April 9, 1999
   TURGEON, J.,

Plaintiff-minor Stevie Baum, through her parents, Terri Boyd and Matthew Baum, claimed defendants Peter Cherouny M.D. and Barbara DiPietro-Steele M.D. were negligent during Stevie Baum’s birth May 8, 1988. Dr. Cherouny was Terri Boyd’s attending obstetrician and Dr. DiPietroSteele a first-year obstetrical resident. They asserted defendant-hospital, Milton S. Hershey Medical Center, was vicariously liable.

On November 12, 1998, following an eight-day trial, the jury returned a defense verdict, having found none of the defendants negligent. Plaintiffs filed a motion for post-trial relief and supplemental motion seeking a new trial, which I denied by March 23, 1999 order. This opinion is written in support of that decision.

Plaintiffs raised four issues in their post-trial motions:

“(1) Notes taken by a juror and available to the jury during deliberations constitutes reversible error.
“(2) The court erred in failing to instruct the jury that defendants were held to a dual standard of care; specifically, that physicians are held to the same degree of care as would a reasonable person under the circumstances.
“(3) The jury’s verdict was against the weight of the evidence.
“(4) The court erred in not requiring defendants to adhere to the trial schedule agreed to by the parties.”

FACTS

Plaintiffs claimed Drs. Cherouny and DiPietro-Steele allowed Terri Boyd’s second stage labor to extend too long without performing a cesarean section. As a result, Stevie Baum allegedly suffered perinatal asphyxia (oxygen deprivation) causing hypoxic ischemic brain damage resulting in Stevie Baum’s cerebral palsy.

In September 1987, 31-year-old Terri Boyd began to receive prenatal care at Hershey Medical Center. Her pregnancy was considered high risk due to her history of ulcerative colitis and a 1981 early labor which resulted in the premature delivery, at 31 weeks, of her son Devlin who is also afflicted with cerebral palsy. Nevertheless, her pregnancy proceeded without complication and her colitis was controlled with medication. An early amniocentesis demonstrated a normal female fetus and a 31-week ultrasound showed fetal size around the 50th percentile.

On May 7,1988 at 11 a.m., mother experienced initial contractions and was admitted to the hospital around 2:30 a.m. the following morning, Her water broke at 5 a.m., at which time the amniotic fluid was clear. At 10:20 a.m., the baby experienced a two-minute episode of slow fetal heart rate (bradycardia) of 95-98 beats per minute. A second episode occurred at 2:30 p.m. during which her heart rate was 80-90. However, it returned to 130 with a change in fetal position. Normal fetal heart rate is 120-160 beats per minute. Fetal scalp pH’s, which measure fetal oxygenation, were taken at 9 a.m. (pH 7.23) and 3:25 p.m. (pH 7.33) and demonstrated fetal well-being.

At 4:15 p.m., the baby had not proceeded beyond zero station. At 5:10 p.m., mother reached full cervical dilation, marking the onset of second stage labor during which descent of the fetal head should occur. The second stage of labor in a woman who has previously delivered vaginally, normally lasts one to two hours. During the second stage, fetal heart rate monitoring demonstrated episodes of bradycardia accompanied by late/variable decelerations. There was very little progression of the fetus through the birth canal during this stage.

At 8 p.m., mother was taken to the delivery room in an effort to expedite delivery. At that time, the baby had reached only plus one station down the birth canal. By 8:40, she was still at plus one station and Dr. Cherouny became concerned the baby may not have sufficient reserves for delivery, although he believed the baby was tolerating delivery and saw no need for c-section preparation. At approximately 8:44 or 8:45 p.m., Dr. Cherouny attempted a manual rotation of the fetus, following which there was an immediate sudden drop in fetal heart rate from a 120 baseline to 60-80 beats per minute, from which the fetus did not recover. Fetal heart rate remained between 60-80 for approximately 20 minutes, and then dropped further to 40-50 for approximately five minutes. Also, immediately following the manual rotation of the fetus, thick meconium was detected in the amniotic fluid. Both the sudden drop in the baby’s heart rate and the presence of thick meconium concerned Dr. Cherouny.

Dr. Cherouny attempted delivery by forceps immediately after the manual rotation. Defendants testified the baby was at plus two station at this time, indicating a low forceps delivery. Plaintiffs disputed this fact, arguing the baby was still at plus one station, warranting a high forceps delivery. Nevertheless, this procedure was abandoned after both Dr. Cherouny and chief obstetrical resident Dr. Mary Danca were unable to lock the forceps around the baby’s head. At 8:50 p.m., Dr. Cherouny attempted delivery by vacuum extractor, which initially failed. At 9 p.m., Dr. Cherouny called for a “stat” c-section. While c-section preparations were underway, delivery was managed with the vacuum extractor at 9:09 p.m., three hours and 54 minutes after commencement of second stage labor. The baby was born small for gestational age, under the 10th percentile.

Upon delivery, the baby was floppy and unresponsive, not breathing, with a heart rate in the 40s. Attending pediatrician Dr. Abba Cargan removed meconium from her esophagus and intubated her 30 seconds after birth. Shortly thereafter, she was resuscitated after her heart rate could not be detected. Within two minutes, her heart rate went up to 150. Her Apgar scores were one at one minute and three at five minutes. Dr. Cargan’s neurological exam in delivery room was abnormal. Attending neonatal intensive care unit pediatrician Keith Marks M.D. evaluated the baby the morning of May 9, 1988. He diagnosed her as having incurred perinatal asphyxia, the symptoms of which included global signs of hypoxic-ischemic insult. He noted her low heart rate prior to delivery, presence of meconium, failure to breathe at delivery, need for resuscitation, lack of spontaneous ventilation until 20 minutes following birth, hypotonic condition, seizure development and oliguria (not passing urine).

Dr. Richard Naeye examined mother’s placenta May 9, 1999. He found it growth-retarded — below the 10th percentile in weight for a 41-week pregnancy. In addition, he found the presence of stage 1 acute chorioamnionitis, an area of placental infection. The umbilical cord, which had remained attached to the placenta, was only 18.5 centimeters long, about one-half normal length, although cord diameter was above average.

LEGAL DISCUSSION

Juror Note-Taking

Following the verdict, plaintiffs learned the jury foreman had taken notes during the course of the trial and had taken them into the jury room during deliberations. In an affidavit, the foreman stated that he asked a person he thought to be a court bailiff whether note-taking outside the courtroom was permissible and was told that it was. He stated he wrote down his recollection of the testimony during lunch breaks and at home after the end of each day. He did not take any notes during the trial in the courtroom. He stated that during deliberations, he referred to and commented from his notes. Two other jurors provided affidavits confirming the foreman brought his notes into the deliberation room and that he was selected jury foreman because he had taken notes. One of the jurors also stated the notes were available for jury review and were relied upon by the jury-

To the extent the Pennsylvania Supreme Court has addressed the issue, it has held that juror note-taking, in civil cases, is discouraged and “generally is forbidden.” Fisher v. Strader, 399 Pa. 222, 223, 160 A.2d 203 (1960) (quoting Thornton v. Weaber, 380 Pa. 590, 112 A.2d 344 (1955)). The applicable law, where such misconduct occurs potentially affecting jury deliberations, was most recently set forth by the Supreme Court, as follows:

“The rule in Pennsylvania, as well as in a majority of jurisdictions, is that a juror is incompetent to testify as to what occurred during deliberations. Pittsburgh National Bank v. Mutual Life Insurance Company, 493 Pa. 96, 425 A.2d 383 (1981). This rule is often referred to as the ‘no impeachment’ rule. However, in order to accommodate the competing policies in this area, a narrow exception has been recognized. The exception permits ‘post-trial testimony of extraneous influences which might have affected [prejudiced] the jury during deliberations’ {Id. at 493 Pa. 101, 425 A.2d at 383). Under this exception, the juror may testify only as to the existence of the outside influence, but not as to the effect this outside influence may have had on deliberations. . . . Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970). Under no circumstances may jurors testify regarding their subjective reasoning processes.” Carter by Carter v. U.S. Steel Corporation, 529 Pa. 409, 415, 604 A.2d 1010, 1013 (1992).

Defendants argue the “no impeachment rule” applies in this case since the jurors’ affidavits concern events transpiring in the jury room. They argue this rule’s narrow exception does not apply since the foreman’s notes cannot be considered an “extraneous influence.” Carter, supra. They argue this case is analogous to Friedman v. Ralph Brothers Inc., 314 Pa. 247, 171 A. 900 (1934) and Pittsburgh National Bank, supra. In both cases, the Supreme Court upheld lower court decisions, holding inadmissible, testimony that jurors had undertaken independent research of trial issues. In Friedman, a juror visited the accident scene and took measurements, and in Pittsburgh National Bank, a juror inspected a vehicle similar to the one in issue. The Friedman court held the juror’s measurements could not have influenced the jury because that information was already available to it. Id. at 250. Without discussion, the Pittsburgh National Bank court cited Friedman as the basis for holding juror testimony inadmissible. Pittsburgh National Bank at 101, 425 A.2d at 386.

Plaintiffs argue that the guidelines for evaluating influences which might potentially affect jury deliberations, as set forth in Carter by Carter, are not applicable here since juror note-taking is sui generis. Although plaintiffs concede they must prove actual prejudice to warrant a new trial, they argue use of juror notes during deliberations is such a severe event, it constitutes actual prejudice. In support, plaintiffs rely upon Fisher v. Strader, supra. There, prior to jury deliberations, it came to the court’s attention two jurors had taken notes during trial. The court confiscated the notes and the jury returned a defense verdict. Plaintiffs’ new trial motion, on the basis that the note-taking prejudiced their right to a fair trial, was denied. The Supreme Court affirmed, finding no prejudice to plaintiffs. However, in dicta, the court warned of the danger of juror notes in the deliberation room:

“In Pennsylvania, in many comparable situations, it has been frequently and consistently ruled that any irregularity or misconduct on the part of a juror during the trial of a case is not such as to warrant a new trial, unless it appears that the act complained of actually prejudiced the rights of the parties involved .... We see no resulting prejudice herein. The notes were not taken into the jury room and were, therefore, not relied upon by the 12 in their consultation and it is this prejudicial practice that is the main sin which the no-note-taking rule aims to obviate. It is when this happens that the danger of overemphasizing the importance of the notes made by a juror materializes, causing other members of the jury to underestimate, if not totally disregard, the power and value of their own recollection of the evidence. It also places the note-taking juror in a position of superiority in his own eyes and in those of the other jurors, and sets up a situation wherein a juror may attempt to exert an undue and unfair influence. ” Id. at 224-25. (citations omitted) (emphasis added)

All of the dangers juror notes can create, identified above by the Supreme Court, may have conceivably occurred here. In addition, the juror here did not take his notes contemporaneously but perhaps hours after the evidence presentation. Thus, we are faced with the question of whether the Fisher dicta indicates an intent by our Supreme Court to bypass the no impeachment rule, which would be otherwise applicable to juror note-taking situations. If so, plaintiffs would appear entitled to a new trial, having established the type of prejudice outlined in Pierce. However, we believe the impeachment rule does in fact apply, in light of a subsequent Supreme Court case: Commonwealth v. Pierce, 453 Pa. 319, 309 A.2d 371 (1973).

In Pierce, two jurors took notes and used them during deliberations, which resulted in a guilty verdict. One juror provided an affidavit so stating. Defendant sought a new trial and the trial judge, refusing to admit the affidavit, denied the request. The Supreme Court found no error, holding that although Pennsylvania law prohibits a juror from taking and using notes in the jury room, the equally established no impeachment rule also applied. Under that rule, the court concluded the juror’s affidavit “was not competent evidence to show that notes were used in the jury room.” Id. at 322. Thus, the dangers cited in the Fisher dicta — that notes would be relied upon by the jury, that other jurors would underestimate or disregard their own recollection of evidence or that the note-taking juror would wield undue or unfair influence — could not be “learned” under the no impeachment rule since jurors would be required to divulge their subjective reasoning in reaching their verdict. Thus, according to Pierce, juror note-taking does not allow for a separate analysis and, thus, we must turn to the Carter guidelines.

Under Carter, we first determine whether the notes were in fact an “extraneous influence,” and second, if so, whether plaintiffs can prove they were prejudiced, under the narrow exception to the no impeachment rule. An extraneous influence consists of “information . . . not provided in open court or vocalized by the trial court via instructions.” Boring v. LaMarca, 435 Pa. Super. 487, 493, 646 A.2d 1199, 1202 (1994) (citing Carter and Pittsburgh National Bank (concurrence), supra). On this issue, the foreman specifically stated that “[tjhroughout the course of trial, during the lunch breaks, and at home after the end of the testimony for the day, I took notes of the testimony that was given.” This is the extent of the evidence as to the source of the juror’s notes. Since the foreman noted only information provided in open court, the narrow exception to the no impeachment rule does not apply. Accordingly, we cannot consider the jurors’ affidavits as competent evidence as to what took place during jury deliberations, and plaintiffs are thus unable to show prejudice.

Nevertheless, even if we consider the notes an extraneous influence, we would conclude plaintiffs have failed to establish the prejudice required to warrant a new trial. Where an extraneous influence appears, the impartiality and integrity of the jury is implicated and the potential for jury prejudice arises. Carter at 419, 604 A.2d at 1015-16. Thus, the trial judge must determine whether the extraneous influence caused “a reasonable likelihood of prejudice.” Id. at 421, 604 A.2d at 1016. The court’s inquiry is “how an objective, typical juror would be affected by such an influence,” since the court is precluded from delving into any subjective jury impact the extraneous influence may have had. Id. at 420, 604 A.2d at 1016. In making the reasonable likelihood of prejudice determination, the trial judge must consider “(1) whether the extraneous influence relates to a central issue in the case or merely involves a collateral issue; (2) whether the extraneous influence provided the jury with information they did not have before them at trial; and (3) whether the extraneous influence was emotional or inflammatory in nature.” Id. at 421-22, 604 A.2d at 1017. (footnote omitted) The burden of proving reasonable likelihood of prejudice is on the party claiming prejudice. Id.

In evaluating the likelihood of prejudice under Carter, we must initially determine what portions of the jurors’ affidavits are admissible under the no impeachment rule’s narrow exception. We find admissible the juror statements that the foreman took notes over the course of the whole trial, took them into the jury room, referred to and commented from them during deliberations and that the notes were available for review by other jurors. Carter at 419, 604 A.2d at 1015 (testimony that deliberating jurors discussed a TV broadcast concerning issues before it at trial was admissible since the jury’s subjective reasoning process was not involved). However, the juror-affiant’s statements are inadmissible to the extent they averred the foreman was so chosen because he had taken notes and that the jury relied upon the notes in deliberating. This is information directly relating to the jury’s reasoning processes. Id.

With this information in mind, we apply the first Carter consideration — whether the extraneous influence relates to a central issue in the case or merely involves a collateral issue. Clearly, the notes involved central issues in the case since the notes were taken over the course of the whole trial. Regarding Carter’s second consideration — whether the extraneous influence provided the jury with information not before them at trial— the trial judge must know the “precise extraneous information” to make this determination. Boring at 494, 646 A.2d at 1202-1203. In Boring, the Superior Court held the trial court erred in finding the extraneous influence caused a reasonable likelihood of prejudice. Specifically, the court held that where evidence was lacking as to the precise nature of the extraneous influence, the trial court could not have determined the jury was provided with new information. Id. at 494, 646 A. 2d at 1203. Similarly, we do not know with any level of precision the substance of the information communicated or available to the jury. We have not been provided with the foreman’s notes nor have we been apprised which portions, if any, were utilized by the jury during deliberations. Without this information we cannot, as a matter of law, evaluate whether the notes provided the jury with new information. Accordingly, plaintiffs have not proven a reasonable likelihood of prejudice resulting therefrom and a new trial is unwarranted.

Dual Standard of Care Instruction

Prior to jury deliberations, this court rejected plaintiffs’ proposed jury instruction which set forth a dual standard of care and instead provided the following instruction:

“A physician must have and use the same knowledge and skill and exercise the same care as that which is usually had and exercised in the medical profession. A physician whose conduct does not meet this professional standard of care is negligent.
“A physician who holds himself out as a specialist in a particular field of medicine must have and exercise that same knowledge and skill as that which is had and exercised by other specialists in that same medical specialty. A specialist whose conduct does not meet this professional standard of care is negligent.
“Now, under the standard of care a physician, just as those of you who are in particular professional areas, must be informed of the contemporary development in the medical profession or specialty, and they must use those current skills and knowledge.
“In other words, a physician is bound to be up to the improvements of the day in medical skills and if that physician fails to inform themselves of those advances in the medical treatment of their patient, they are under the law what we call negligent.
“A physician must also use the same degree of care as would a reasonable person under the circumstances.
“You must decide whether the defendant was negligent in any of these respects. . . .” (N.T. 11/12/98 closings and charge at 62-3.) (emphasis added) Since this charge included a dual standard of care, plaintiffs’ allegations are without merit.

Weight of the Evidence

Plaintiffs argue that, based upon the fetal status arid length of second stage labor, Dr. Cherouny should have called for a c-section team at the time he attempted the manual rotation or when he decided to effect delivery by forceps, as was the standard of care in 1988. Plaintiffs argued that had Dr. Cherouny been prepared for a c-section at that time, the baby could have been delivered within a matter of minutes as opposed to undergoing nearly 25 minutes of acute fetal distress causing her brain injury resulting in cerebral palsy. They argue the evidence was so weighty as to these propositions that a new trial must be granted in their favor. Defendants disputed that it was necessary for a c-section to be called at any time and that, even so, the hypoxic event did not cause the baby’s cerebral palsy.

A new trial is properly granted where the verdict was against the weight of the evidence. Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985). “A party is entitled to a new trial based on the weight of the evidence only where the verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. . . . [The appellant] is not entitled to a new trial where the evidence is conflicting and the [finder of fact] could have decided either way.” Petrasovits v. Kleiner, 719 A.2d 799, 803 (Pa. Super. 1998) (quoting Gottfried v. American Can Co., 339 Pa. Super. 403, 489 A.2d 222 (1985), appeal denied, 549 Pa. 704, 700 A.2d 443 (1997)). When considering a new trial motion on a weight of the evidence challenge, we must review all evidence presented. Farelli v. Marko, 349 Pa. Super. 102, 105, 502 A.2d 1293, 1295 (1985).

The jury found neither Dr. Cherouny nor Dr. DiPietroSteele negligent. While the testimony was quite compelling, the plaintiffs’ expert testimony was contradicted by defendants’ expert. Plaintiffs’ expert Dr. Leslie Iffy, an obstetrician-gynecologist with a subspecialty in fetal medicine, found Dr. Cherouny deviated from the standard of care by allowing second stage labor to go beyond two hours without deciding on a delivery method. (N.T. 11/4/98 vol. 1 at 44-45.) In addition, although not critical of Dr. Cherouny’s decision to forego calling a c-section team prior to manual rotation, he found such failure below the standard of care when the rotation resulted in a significant bradycardia. (N.T. 11/4/98 vol. 2 at 7-8.) Similarly, although not critical of Dr. Cherouny’s decision to attempt forceps delivery, he found Dr. Cherouny in violation of the standard of care for not having a c-section team available at the time forceps were attempted. (N.T. 11/4/98 vol. 2 at 11, 13.)

Defendants’ expert, obstetrician-gynecologist Dr. Joel Polin, provided conflicting testimony on these points. He testified that first stage labor proceeded normally— first stage fetal bradycardia was not abnormal and fetal scalp pH tests confirmed normal fetal oxygenation. (N.T. 11/12/98 at 12, 16.) He testified second stage labor proceeded normally as well. He noted that the two-hour ceiling for second stage labor in a woman who has previously vaginally delivered children is an arbitrary limit, especially since physicians have available to them electronic fetal monitoring to individually assess cases. He testified all fetal monitoring, including fetal heart rates, up until 8:45 p.m., were reassuring. (N.T. 11/12/98 at 15-17.) Furthermore, he noted the mother’s labor was prolonged by use of an epidural as well as the fact her only other vaginal delivery was of a premature (small) infant. (N.T. 11/12/98 at 18.)

Dr. Polin also testified Dr. Cherouny’s decisions to perform a manual rotation, forceps delivery and vacuum delivery, without having alerted the c-section team, were within the standard of care. (N.T. 11/12/98 at 21-25, 28.) Dr. Polin testified that even if one agreed with Dr. Iffy that Dr. Cherouny should have called for c-section preparation immediately following manual rotation, no breach of the standard of care occurred. (N.T. 11/12/98 at 22.) Both Drs. Polin and Iffy testified that, under the American College of Obstetrics and Gynecology standards, a c-section team has a maximum of 30 minutes from the time it is called until the incision is made. (N.T. 11/4/98 vol. 2 at 9-10, 38; N.T. 11/12/98 at 24.) In this case, the bradycardia following rotation occurred at approximately 8:44 or 8:45 p.m. and delivery at 9:09 p.m. Thus, even under Dr. Iffy’s evaluation, the 30-minute response was met. (N.T. 11/4/98 vol. 2 at 39; N.T. 11/12/98 at 25.) Accordingly, the jury’s verdict that the defendants were not negligent was not against the weight of the evidence.

We note as well that the testimony was conflicting on causation, although the jury did not reach this issue. Plaintiffs’ theory was that the acute hypoxic-ischemic event which the baby underwent just prior to her birth resulted in her cerebral palsy: Dr. Carl Hunt, expert neonatalogist, testified her injuries were caused by severe, acute perinatal asphyxia occurring over a matter of minutes in the last 20-30 minutes prior to delivery. (N.T. 11/5/98 vol. 1 at 12, 22-23.) He also testified a baby with this severe case of perinatal asphyxia has a 20-30 times greater risk for developing cerebral palsy. (N.T. 11/5/98 vol. 1 at 22.) Dr. Keith Marks, the treating pediatrician, diagnosed her the morning after her birth with perinatal asphyxia resulting from her delivery. (N.T. vid. dep. 9/22/98 at 13.) Dr. Robert A. Zimmerman, a pediatric neuroradiologist, testified MRI brain studies taken when she was 8 years old revealed an injury which “occurred in and around the time of term and is associated with profound hypoxic-ischemic injury” and not the result of chronic hypoxic-ischemic injury. (N.T. 11/3/98 vol. 1 at 26, 28.) Dr. Cynthia Kaplan, a pediatric pathologist, ruled out chronic hypoxia and found no placental insufficiency based upon her review of placental slides and pathology report. (N.T. 11/3/98 vol. 3 at 28,32-33.) Dr. Laird Jackson, a genetics expert, ruled out any genetic connection between the baby’s cerebral palsy and that of her older half-brother. (N.T. 11/4/98 vol. 3 at 21, 24.) Finally, Dr. Timothy Murphy, pediatric pulmonologist, explained why the umbilical cord’s venous cord pH (7.33), taken immediately after the baby’s birth, was within normal range. He testified that venous cord pH measures placental acidity and arterial cord pH, the baby’s. Based upon the venous pH, he opined the baby’s pH at birth would have been 7.0 or below. (N.T. 11/6/98 vol. 1 at 17, 20, 28.) Normal newborn blood pH is 7.4 and a pH of below 7.2 considered acidotic. (N.T. 11/6/98 vol. 1 at 25.) An acidotic pH often reflects low oxygen levels. (N.T. 11/6/98 vol. 1 at 15.)

Defendants presented conflicting causation testimony, summarized as follows: Dr. Sonia Hulmán, expert neonatalogist, testified the baby suffered from intrauterine growth retardation, a chronic condition, resulting from placental insufficiency. (N.T. 11/9/98 vol. 3 at 25, 40-42.) She based her conclusions on the third trimester drop in baby’s weight, placental condition including ratio of baby’s weight to it, short cord and placental appearance, including evidence of chronic intrauterine infection, baby’s apparent growth retardation, baby’s difficulty in last moments of delivery and rapid fetal heart rate recovery. (N.T. 11/9/98 vol. 3 at 40-42.) Dr. Naeye, the pathologist who examined the mother’s placenta the day after delivery, diagnosed her with chorioamnionitis and growth retardation. (N.T. 11/9/98 vol. 4 at 64.) Dr. Mark Scher, pediatric neurologist, testified that asphyxia was not probable in this case since it would create multi-organ failure, which he opined did not occur here. (N.T. 11/10/98 vol. 1 at 24, 34-39.) In addition, he testified any brain damage the baby suffered occurred prior to her admission to the hospital and not from an acute injury. (N.T. 11/10/98 vol. 1 at 44.) He also noted that her half-brother’s cerebral palsy was significant since it linked that outcome to their mother who had a history of ulcerative colitis. (N.T. 11/10/98 vol. 1 at 47-48.) Finally, Drs. Polin, Hulmán and Scher all disagreed with Dr. Murphy’s correlation of a 7.33 venous pH to an arterial pH of 7.0 or lower, all noting that a close correlation usually exists between the two numbers. (N.T. 11/12/98 at 26; N.T. 11/9/98 vol. 3 at 28; N.T. 11/10/98 vol. 1 at 21, 23.) Thus, while the jury did not reach the causation issue, conflicting testimony existed.

Time Restraints on Case Presentation

This case was scheduled over a two-week period from November 2-13,1998. After discussion with counsel regarding time constraints on the case, including the fact the courthouse was closed for a holiday November 11, the parties agreed to a trial timeline implementing the court’s goal of getting the case to the jury by noon Thursday, November 12. This would give the jury one and one-half days to deliberate, if necessary. Monday, November 2 was reserved for jury selection and opening statements. Plaintiffs would present their case beginning Tuesday, November 3 and conclude by noon on Monday, November 9. Defendants would then have one and one-half days to present their case, concluding by the end of the day Tuesday, November 10. Closings were to take place on Thursday morning. (See N.T. 11/5/98 vol. 4 at 31-34.)

Plaintiffs abided by this schedule but defendants were unable to. Defendants’ standard of care expert, Dr. Polin, informed the court by letter he could not testify Tuesday, November 10 as previously scheduled. Therefore, Dr. Polin was moved to Thursday morning and defense counsel limited to a 40-minute direct examination. (N.T. 11/10/98 vol. 3 at 3.) Plaintiffs’ counsel objected since it was not in conformance with the agreed schedule. (N.T. 11/10/98 vol. 3 at 3-5; N.T. 11/12/98 at 3.) Plaintiffs argue defendants should have presented Dr. Polin either by videotape or on Monday, November 9.

Clearly, it was within my discretion to allow Dr. Polin to testify Thursday, November 12, albeit with time constraints. Plaintiffs have failed to cite any authority whereby a relatively minor change in an agreed trial schedule warrants a new trial, nor do they suggest the rescheduling prejudiced them. See post-trial motion, ¶¶2-9. Furthermore, defendants did not ultimately receive a greater time allotment for evidence presentation than agreed to: defendants’ counsel finished before 3 p.m. Tuesday, November 10 and the entire examination of Dr. Polin took less than one hour.

Accordingly, I denied plaintiffs’ post-trial motions March 23, 1999.

      . However, the trend in civil cases is to allow notes. A proposed amendment to Pennsylvania Rule of Civil Procedure 223, Conduct of the Jury Trial, would allow trial judges to permit jurors to (i) take notes and use them throughout the trial and during the jury’s deliberation____” The explanatory comment states that “[t]he purpose of the proposed amendment is to facilitate the jurors’ understanding of the case.” Proposed Pa.R.C.P. 223(b)(2) — Civil Procedural Rules Committee, proposed recommendation no. 154. Note-taking in criminal cases is expressly prohibited. Pa.R.Crim.P. 1113, 42 Pa.C.S.

      . Although the Pierce holding would seem to preclude us from even looking at the jurors’ affidavits, we feel it appropriate to examine them to determine whether they allude to any out-of-court influences as the source of the foreman’s notes.

      . Whether the extraneous influence was emotional or inflammatory in nature is a moot issue. Nevertheless, there is no indication the notes were either of an emotional nature or inflammatory, although this consideration would not have alone substantially influenced our determination of the reasonable likelihood of prejudice.

      . Plaintiffs’ proposed instruction provided as follows:
      “Again, a dual standard of care governs physicians: that of the medical profession, and that of a reasonable person under the circumstances. In other words, to recover against a physician, a plaintiff ‘must prove either that (1) the physician did not possess and employ the required skill and knowledge, or (2) that he did not exercise the care and judgment of a reasonable man in like cases and that the injury complained of either (1) resulted from the failure on the part of the physician to possess and employ the required skill and knowledge, or (2) resulted from his failure to exercise the care and judgment of a reasonable man in like circumstances.’
      “In other words, a physician must both meet the medical standard of care, and also do that which a reasonable person would do under the circumstances presented. If you find that the defendants failed to either meet the medical standard of care, or act as a reasonable person would have under the circumstances, you may find that the defendant’s negligent.
      “It is plaintiffs’ contention that the conduct of the defendant, Peter Cherouny M.D., either viewed in the light of the skills and knowledge usually possessed by other medical professionals, or in light of how a reasonable person would have acted under similar circumstances, was careless and negligent. You must decide whether the evidence has shown that the defendant-physician breached the standard of care which was established by the plaintiffs’ medical witnesses at trial, and whether he acted in a careless manner in labor and delivery of Stevie Baum; failing to exercise the ordinary care which a reasonably prudent person would have exercised in the circumstances.”

      . This instruction is taken almost verbatim from Pa.S.S J.1.10.03A (My 1991).

      . Defendants did not present any evidence on damages. Thus, there was no conflicting testimony on that issue.


author: BLACK, J.,

text:
    Ortiz v. Allentown Housing Authority

      C.P. of Lehigh County,
    no. 97-C-2374.

      Daylin B. Leach, for plaintiff.

      Eugene F. Hickey II, for defendant.
    February 17, 1999
   BLACK, J.,

Plaintiff Estabon Ortiz, as guardian of his 6-year-old son Alexis Ortiz, seeks to recover money damages from defendant Allentown Housing Authority, for injuries sustained by Alexis when he fell from a piece of elevated playground equipment, commonly known as “monkey bars,” at defendant’s Cumberland Gardens public housing project, where plaintiff and his son reside. Defendant had erected the monkey bars on the playground at Cumberland Gardens over a hard concrete or macadam surface. According to plaintiff’s expert report, this hard surface directly underneath the monkey bars was inappropriate and contributed to the injuries sustained by Alexis.

Before the court is defendant’s motion for summary judgment. Defendant’s brief in chief argues that plaintiff’s claim is barred by the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq. However, under prevailing case law, this Act does not apply to a housing authority, which is considered a state instrumentality rather than a political subdivision or other local agency. The immunity of a housing authority from suit is governed by the sovereign immunity doctrine for Commonwealth agencies set forth in 42 Pa.C.S. §8521 et seq., and not by the governmental immunity rule for local agencies contained in 42 Pa.C.S. §8541 et seq. Byard v. Philadelphia Housing Authority, 157 Pa. Commw. 269, 629 A.2d 283 (1993); Downing v. Philadelphia Housing Authority, 148 Pa. Commw. 225, 610 A.2d 535 (1992). Accordingly, defendant’s motion as originally presented is without merit.

In its reply brief, defendant has abandoned the governmental immunity argument and instead contends that plaintiff’s claim is barred by the doctrine of sovereign immunity in 42 Pa.C.S. §8521. As a matter of judicial economy, we will consider defendant’s contention at this time, even though it differs from defendant’s original position.

A Commonwealth agency is immune from suit under the doctrine of sovereign immunity unless the claim falls within one of the eight exceptions set out at 42 Pa.C.S. §8522(b). The exception at issue here is the so-called real estate exception, pursuant to which Commonwealth agencies are liable for damages that have been caused by “[a] dangerous condition of Commonwealth agency real estate and sidewalks....” 42 Pa.C.S. §8522(b)(4).

Plaintiff’s theory of liability is that the hard concrete or macadam surface underneath the monkey bars created an unreasonable risk of injury to children, who often fall from this type of climbing apparatus. This concrete or macadam surface was not a transitory foreign substance, like a banana peel or a patch of ice, which arguably is merely “on” the real property. Rather, the concrete or macadam surface was part “of’ the real estate itself. Although such a surface is not always dangerous, plaintiff’s expert has opined that this type of surface is hazardous when placed directly underneath children’s elevated playground equipment, such as the monkey bars here. According to plaintiff’s expert, it is well-known to playground design professionals that there are softer materials available that are clearly more appropriate for this use.

This case, therefore, is factually similar to City of Philadelphia v. Duda by Duda. 141 Pa. Commw. 88, 595 A.2d 206 (1991), where the plaintiff was injured diving into a pool whose depth markers had been painted over by the city. At the time of the decision in Duda, the Pennsylvania appellate courts still required that there be a dangerous condition “of” the real property for a municipality to be liable under the governmental immunity real estate exception. Nevertheless, the Commonwealth Court held the City of Philadelphia liable, reasoning that the real estate itself, i.e., the pool bottom, had caused the plaintiff’s injury. Similarly, under plaintiff’s theory of liability here, it was the hard concrete or macadam surface that allegedly caused Alexis’ injury; and this hard surface, like the pool bottom, was a dangerous condition “of’ the real estate itself.

This reasoning was recently confirmed in Smith v. PennDOT, 700 A.2d 587 (Pa. Commw. 1997) where the design and construction of a highway was alleged to be a dangerous condition “of’ Commonwealth real property. In Smith, the court reversed a grant of summary judgment in favor of the Department of Transportation. The court held that the department had a duty to properly design and construct its highways so that they were safe for their intended purpose, and that the real estate exception to sovereign immunity in 42 Pa.C.S. §8522(b)(4) applied.

Defendant has attached to his brief in chief a copy of an expert report stating that the concrete or macadam surface was “not deficient.” However, we cannot grant summary judgment to defendant on the basis of its own expert’s report. A jury will have to determine which of the experts is more credible. As defendant acknowledges in its brief, where there is a genuine issue of material fact, summary judgment is not appropriate. Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). Nor should such relief be granted unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa. Super. 613, 561 A.2d 1261 (1989).

In the instant case, there is a genuine dispute, reflected in the conflicting expert reports, as to whether the surface underneath the monkey bars was a dangerous condition. Because of this factual dispute, we cannot find that the matter is clear and free from doubt. Therefore, defendant’s summary judgment motion must be denied.

ORDER

Now, February 17, 1999, upon consideration of defendant’s motion for summary judgment, after review of the parties’ briefs and for the reasons set forth in the accompanying memorandum opinion, it is ordered that said motion be and hereby is denied.

      . Report of Dr. Richard Roberts, dated August 24, 1998.

      . This change of direction may have been precipitated in part by recent appellate cases holding that a dangerous condition “on” real estate (as well as a condition “of’ real estate) could qualify under the real estate exception in the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8542(b)(3). See Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997); Snyder v. North Allegheny School District, 722 A.2d 239 (Pa. Commw. 1998); Hanna v. West Shore School District, 717 A.2d 626 (Pa. Commw. 1998); Martin v. City of Philadelphia, 696 A.2d 909 (Pa. Commw. 1997). These cases may have sounded the death knell for the “on/of’ distinction in applying the real property exception under the Political Subdivision Tort Claims Act.

      . The text of the real estate exception for local agencies is different. It speaks of damages arising from the “care, custody or control of real property in the possession of the local agency.” 42 Pa.C.S. §8542(3). Nevertheless, until recently, both exceptions were interpreted to apply only if there was a dangerous condition “of’ the real estate. See footnote 2, supra.

      . See footnote 2, supra.

      . Report of John J. Pocius P.E., dated September 30, 1998.


author: SCHAEFFER, S.J.,

text:
    Gerhart v. Don Lengle Inc.

      C.P. of Berks County,
    no. 5727-93 A.D. 98-8788.

      Daniel S. Weinstock, for plaintiff.

      Barry W. Sawtelle, for defendant Don Lengle.

      Edwin L. Stock, for defendant Reading Hospital.
    March 19, 1999
   SCHAEFFER, S.J.,

On November 5, 1993, plaintiff Sheila Gerhart commenced this action by writ of summons, and thereafter filed her complaint on March 4, 1994. Defendant Don Lengle Inc. filed its answer with new matter on November 14, 1994. Plaintiff filed her reply to new matter on January 31,1995. On February 24,1995, defendant Don Lengle Inc. filed a motion for summary judgment. After hearing argument, this court denied defendant’s motion on July 12, 1995. On January 18, 1996, defendant Don Lengle Inc. was granted leave, nunc pro tunc, to file a joinder complaint, for contribution and indemnification, against the Reading Hospital and Medical Center. Said complaint was filed on January 26, 1996, and answered by said additional defendant on February 13, 1996. Defendant was also granted leave to file amended new matter and to plead in its defense the joint tort-feasor release signed by plaintiff and additional defendant Reading Hospital and Medical Center. A jury trial was held August 3, 1998 through August 7, 1998. After a jury verdict in favor of the plaintiff and against the defendant Don Lengle Inc., and the Reading Hospital and Medical Center, plaintiff timely filed post-trial motions for delay damages, in the amount of $194,778.68, against defendant Don Lengle Inc. This court held a hearing on plaintiff’s post-trial motion for delay damages on October 5, 1998, and subsequently entered a molded verdict awarding plaintiff $97,389.34 in delay damages against defendant Don Lengle Inc. Defendant Don Lengle Inc. filed post-trial motions for judgment n.o.v. and for a new trial on August 14, 1998. The court denied defendant Don Lengle Inc.’s post-trial motions on December 16, 1998. On December 16, 1998, judgment was entered against defendant Don Lengle Inc., and for plaintiff, in the amount of $112,500 plus delay damages of $35,060.16 under the Survival Act, and in the amount of $200,000 plus delay damages of $62,329.18 under the Wrongful Death Act, and against defendant Don Lengle Inc. and for additional defendant Reading Hospital and Medical Center, in accordance with the terms of the joint tort-feasor release, for costs.

The facts leading up to this dispute are as follows: plaintiff/appellant’s decedent was admitted to the Reading Hospital and Medical Center with an anterior communicating artery aneurysm. Dr. Craig H. Johnson performed a craniotomy. After the surgery, the patient was in a confused, disoriented state, but was recovering from the operation. Because of her disoriented state, the patient kept getting out of her bed and had fallen out at one point. The nurses at the hospital put the patient in various restraints and ultimately put her in a “safety bed” to restrain her. The “safety bed” in question was manufactured and sold to the Reading Hospital by defendant/appellant Don Lengle Inc. On November 6, 1991, the patient popped open the defective zipper-snap locking mechanism on the safety bed, again got out of bed and fell to the floor, striking her left forehead. As a result of the fall, the decedent lapsed into a state of depressed consciousness which lasted approximately 19 months. The patient subsequently died.

Appellant Don Lengle Inc. raises three issues for review:

“(A) The trial court erred in denying defendant’s motion for post-trial relief and in permitting the testimony °f Charles J. Goedken as an engineering expert when the witness lacked the qualifications necessary to testify as an expert witness on the design and manufacturing issues of the present case.
“(B) The trial court erred in failing to grant defendant’s motion for compulsory nonsuit, defendant’s motion for directed verdict and defendant’s motion for post-trial relief when the evidence failed to establish that defendant was a seller of the product in question within the meaning of Pennsylvania law imposing strict liability upon sellers of products and under Restatement (Second) of Torts §402A.
“(C) The court erred in failing to charge the jury with regard to the occasional seller defense to strict product liability in the form requested by defendant in its proposed points for charge, thereby denying the jury the opportunity to decide, as a question of fact, whether Don Lengle Inc. was a seller of the product in question within the meaning of Pennsylvania law imposing strict liability upon sellers of products and under Restatement (Second) of Torts §402A.”

Cross-appellant Sheila Gerhart raises one issue on appeal:

“The trial court erred in computing plaintiff’s delay damages based upon the amount of the verdict which plaintiff is entitled to collect from defendant Don Lengle Inc. when the proper measure of delay damages would have been the amount of the jury verdict, in accordance with Pennsylvania Rule of Civil Procedure 238 and Woods v. PennDOT, 531 Pa. 295, 612 A.2d 970 (1992).”

Initially, the court will address the issues presented by defendant Don Lengle Inc.:

Appellant first alleges that the court erred in permitting Charles Goedken P.E. to testify as an expert in the fields of civil and safety engineering. This is not so. It is well established in this Commonwealth that the standard of qualification of an expert is a liberal one. “The test to be applied when qualifying an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.” Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 481, 664 A.2d 525, 528 (1995), citing Commonwealth v. Gonzalez, 519 Pa. 116, 128, 546 A.2d 26, 31 (1988); Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974). A witness may testify as an expert if his or her experience or education logically or fundamentally embraces a matter at issue. Montgomery v. South Philadelphia Medical Group Inc., 441 Pa. Super. 146, 656 A.2d 1385 (1995). The admission of expert testimony is within the discretion of the trial court. Barrack v. Kolea, 438 Pa. Super. 11, 651 A.2d 149 (1994).

Mr. Goedken was well qualified as a safety expert. His qualification was based on, inter alia, his receiving a bachelor degree in civil engineering in 1974 from the University of Detroit, becoming a registered professional engineer in Pennsylvania since 1980, as well as in Virginia, Maryland, New Jersey and the District of Columbia. Mr. Goedken’s continuing professional education was in the area of safety engineering and included coverage of fall protection, safety belts and life lines, which included safety products such as latching mechanisms. Mr. Goedken was a member of the American Society of Safety Engineers as well as the American Society for Testing and Materials, which covered products with latching mechanisms. Mr. Goedken examined the safety bed in question and testified that examining and evaluating the safety bed in question, in order to address its safety characteristics, was within his field of expertise, based upon the engineering principles involved, and his experience and training. (N.T. pp. 133-53; plaintiff’s exhibit 14.)

Mr. Goedken had a reasonable pretension to specialized knowledge on the subject of safety mechanisms. The matter at issue was whether or not the “safety bed” was defective and that involved an analysis of the safety mechanism required for the bed’s intended use. Mr. Goedken was duly qualified to give an expert opinion with respect to basic safety engineering principles as they applied to the particular design and manufacture of the “safety bed” at issue.

Whether or not a witness offered by a party as an expert in a particular field qualifies as an expert and will be permitted to testify as an expert is a matter within the sound discretion of the court; the trial court’s determination will not be overturned except for a manifest abuse of that discretion. In the case at bar, the court acted well within the limits of its discretion.

Second, the next two errors asserted by appellant Don Lengle Inc. involve the “occasional seller” defense, under the Restatement (Second) of Torts §402A. Section 402A of the Restatement (Second) of Torts was adopted by the Pennsylvania Supreme Court in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). Section 402A makes it clear that, in order for strict liability to attach for harm caused by an allegedly defective product, the party who placed the product in the stream of commerce must be one who “is engaged in the business of selling such a product.” Comment f states that the rule applies to any person engaged in the business of selling products for use or consumption. It is not necessary that the seller be engaged solely in the business of selling such products.

Appellant alleges that it was an “occasional seller,” and therefore Rule 402A does not apply. Comment f to the rule states that an occasional seller is one “who is not engaged in that activity as a part of his business.” The comment goes on to state:

“The rule does not, however, apply to the occasional seller of food or other such products who is not engaged in that activity as a part of his business ... The basis for the rule is the ancient one of the special responsibility for the safety of the public undertaken by one who enters into the business of supplying human beings with products which may endanger the safety of their persons and property, and the forced reliance upon that undertaking on the part of those who purchase such goods.”

The comment gives an example of an “occasional seller” as the owner of an automobile who sells it to his neighbor, or even to a dealer, although he knows that the dealer plans to resell it.

The Pennsylvania Supreme Court has not specifically adopted the “occasional seller” exception discussed in comment f, but only noted the exception in a footnote in Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 93 n.3, 337 A.2d 893, 898 n.3 (1975). The Supreme Court noted that occasional suppliers who were not in the business of selling or supplying such products were not “sellers” subject to strict liability. Id. The Pennsylvania Superior Court accepted the occasional seller defense to a product liability claim in McKenna v. Art Pearl Works Inc., 225 Pa. Super. 362, 365 n.2, 310 A.2d 677, 679 n.2 (1973). In McKenna, the plaintiff/employee was injured while using a defective punch press bought by her employer, a button company. Id. at 363, 310 A.2d at 678. The Superior Court held that strict liability did not attach to the “seller” because the corporation that sold the defective punch press was selling it as part of a sale of its corporate assets, in an effort to terminate its business. Id. at 365, 310 A.2d at 679-80. The court found that the “seller” of the punch press was not in the business of selling punch presses, but was itself a button manufacturer. Id. at 365 n.2, 310 A.2d at 679 n.2.

Appellant cites Acevedo v. Start Plastics Inc., 834 F. Supp. 808 (E.D. Pa. 1993) and Abdul Warith v. Arthur G. McKee and Co., 488 F. Supp. 306 (E.D. Pa. 1980) for the proposition that a manufacturer is a seller only if the manufacturer has marketed and sold the product in question through an established and well-recognized business which has been a regularly maintained activity on its part. However, we note that in Acevedo, the court found that the defendant qualified as an “occasional seller” of the conveyor system because it was in the business of manufacturing and marketing fiberglass products, not conveyor systems. The court found that the three ancillary sales of conveyor systems were so tangential that they could not be regarded as being a part of a line of goods sold in the ordinary course of its business. Id. at 812. In Abdul Warith, the court opined that the attitude of the Pennsylvania courts has been more expansive than restrictive in defining the contours of section 402A. Id. at 310. The court found that the three factors cited by the defendant did not take the defendant beyond the purview of section 402A: (1) that it was a supplier of labor and services rather than a seller of the product, (2) that the buyer supplied the specifications for the blast furnace unit, and (3) that the buyer retained final approval on all drawings. Id. The court opined that, “the fact remains that in the course of performin this ‘service,’ [defendant] supplied [the company] with the injury-causing instrumentality.” Id.

Don Lengle Inc. was in the business of producing, selling and supplying custom-made canvas products. Producing custom canvas products was an established, regularly maintained commercial activity on the part of Don Lengle Inc. It engaged in the activity of making and selling 10 custom-made canvas bed canopies, or “safety beds,” to the Reading Hospital as a part of its regular business. (N.T. 8/3/98, vol. I, pp. 29, 33-37, 221, 224-27; plaintiff’s exhibits 21, 22.) Therefore, Don Lengle Inc. did not qualify as an “occasional seller.” It is of no consequence in a strict liability action that the Reading Hospital supplied the specifications for the canvas “safety beds,” or contracted with Don Lengle Inc. for its service in making the canvas product according to the hospital’s needs.

Appellant also asserts that it was error for the court not to charge the jury on the “occasional seller” defense. Don Lengle Inc. did not present sufficient evidence that would support the “occasional seller” defense, and therefore the court did not err by not charging the jury on this point.

Finally, plaintiff Sheila Gerhart asserts that the court erred m its calculation of delay damages, based upon the amount of the verdict that the plaintiff was entitled to collect from Don Lengle Inc., when the proper measure of delay damages should have been the amount of the jury verdict. We disagree.

In a case where there is more than one defendant, and a settlement is reached with less than all defendants, the nonsettling defendant’s liability for delay damages under Rule 238(a) is based only upon that portion of the compensatory damages award which such nonsettling defendant is required to pay, rather than the total amount of the compensatory damages award to the plaintiff. Walton v. Avco Corp., 383 Pa. Super. 518, 550-51, 557 A.2d 372, 389 (1989), citing Baciotti v. Simmons, 346 Pa. Super. 23, 498 A.2d 1351 (1985); Hughes v. GAF Corporation, 364 Pa. Super. 311, 317-18, 528 A.2d 173, 176. (1987) (and cases cited therein), appeal denied, 517 Pa. 623, 538 A.2d 876 (1988); Goodrich-Amram 2d §238(a):6.

Plaintiff Sheila Gerhart cites Woods v. PennDOT, 531 Pa. 295, 612 A. 2d 970 (1992) in support of her argument that the court erred in assessing the delay damages on less than the full jury verdict. In Woods, the Pennsylvania Supreme Court upheld the assessment of delay damages on the full jury verdict of $1.5 million under circumstances where the Commonwealth had not made an adequate settlement offer and did not settle with the plaintiff. Id. at 299, 612 A.2d at 972. The Supreme Court reviewed the history of Rule 238 and opined that the purpose of the rule was to both compensate the plaintiff for delay in receiving his or her recovery and to encourage settlements. Id. at 300, 612 A.2d at 972. The court noted that, under the explanatory comments to Rule 238, damages for delay are not to be awarded after the date of a defendant’s offer when the court determines that the offer was the full amount available for payment, and thus, in statutory cap cases, the obligation for the payment of delay damages would cease at the time the statutory cap was tendered. Id.

Additional defendant Reading Hospital made an adequate settlement offer and did settle with the plaintiff, and the plaintiff agreed that her damages would be reduced by the additional defendant’s pro rata share of legal liability. The joint tort-feasor release signed by the plaintiff stated that “if it should be determined that Don Lengle Inc. is/are jointly or severally liable to the plaintiffs with any person or entity herein released, in tort or otherwise, the claim against and damages recoverable from Don Lengle Inc. shall be reduced by the amount determined by the sum of the pro rata share of legal responsibility or legal liability for which the parties herein released are found to be hable as a consequence of the aforesaid medical care or treatment.” (Joint tort-feasor release, p. 2; defendant’s exhibit 5.)

The jury awarded a total verdict of $625,000 in damages to the plaintiff. The jury assessed legal liability at 50 percent for Don Lengle Inc. and 50 percent for the Reading Hospital and Medical Center. The additional defendant Reading Hospital tendered its offer to the plaintiff upon the signing of the joint tort-feasor release on August 31, 1995 in exchange for a full release and discharge of the additional defendant. Plaintiff agreed to accept said sum in full accord and satisfaction of any damage claims against the Reading Hospital. In accordance with the verdict, and the release, the compensatory damages required to be paid by defendant Don Lengle Inc. were reduced by the settling defendant’s pro rata share of 50 percent, and were therefore reduced to $312,000. Nonsettling defendant Don Lengle Inc.’s liability for delay damages was properly based on that portion of the compensatory damages award that Don Lengle Inc. was required to pay.

For the aforementioned reasons, the court respectfully requests that the Superior Court affirm the judgment entered in this case.

      . Prior to filing this action, plaintiff filed suit against the Reading Hospital and Medical Center and that case was ultimately settled. On August 31, 1995, the plaintiff signed a joint tort-feasor’s release with the Reading Hospital and Medical Center.

      . On March 15, 1996, the court signed a confidentiality order in favor of the Reading Hospital and Medical Center, requiring the terms of the settlement made between plaintiff and additional defendant be kept confidential and the files be marked sealed.

      . The jury award was $225,000 under the survival action and $400,000 under the wrongful death action. The jury also allocated 50 percent liability to defendant Don Lengle Inc. and 50 percent liability to the additional defendant Reading Hospital and Medical Center.

      . The new Pennsylvania Rules of Evidence had not then gone into effect. They first became effective October 1, 1998.

      . Section 402A provides that:
      “(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      “(a) the seller is engaged in the business of selling such a product, and
      “(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it was sold.
      “(2) The rule stated in subsection (1) applies although
      “(a) the seller has exercised all possible care in the preparation and sale of his product, and
      “(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.”

      . We note that the Restatement (Third) of Torts: Products Liability §1, under comment c, One engaged in the business of selling or otherwise distributing, also states that the rule does not apply to a noncommercial seller and does not cover occasional sales outside the regular course of the seller’s business.

      . The Commonwealth, under the Sovereign Immunity Act, was subject to a $250,000 statutory cap on its liability for damages, but made a settlement offer of only $65,000. Woods, 531 Pa. at 296, 612 A.2d at 970.


text:
    Estate of Marsh v. Hunter
    C.P. of Lehigh County,
    no. 96-C-0832V.

      Carol J. Weaver, for plaintiffs.

      John R. Hill, for defendant.
    March 24, 1999
   BLACK, J.,

Plaintiffs allege in this medical malpractice action that defendant failed to properly and timely diagnose an impending myocardial infarction of their decedent, Robert Marsh, resulting in his death. Before the court is defendant’s motion for summary judgment on the ground that plaintiffs have failed to produce an expert report sufficient to establish a prima facie case of medical negligence. For the reasons stated below, the motion for summary judgment is granted.

The pertinent facts, for purposes of this motion, are these: On July 12,1992, decedent went to the emergency room at Muhlenberg Hospital complaining of burning chest pains that had persisted on and off for a two-week period, mainly associated with meals. In the emergency room defendant examined decedent and administered an electrocardiogram to him. She diagnosed decedent as having peptic ulcer disease, for which she recommended Maalox, Zantac tablets to be taken twice a day, and continuing antacids after meals.

On July 21,1992, decedent once again made a visit to the Muhlenberg Hospital emergency room, complaining of similar symptoms along with a fever and pain in his left groin. Once again defendant examined decedent in the emergency room. After the examination defendant referred decedent for an ultrasound of his gallbladder the next day and for x-rays. These tests were negative. Defendant prescribed pain medication for the pain in decedent’s groin, which defendant diagnosed as a groin pull, and also continued decedent on Zantac and antacids for his chest pains. A few days later, on July 24,1992, decedent arrived at the Easton Hospital emergency room in full cardiopulmonary arrest and was pronounced dead soon thereafter.

To state a prima facie cause of action for medical malpractice a plaintiff must establish that (1) the physician owed a duty; (2) the physician breached the duty; (3) the breach of the duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered; and (4) the damages suffered were a direct result of the harm. Hoffman v. Brandywine Hospital, 443 Pa. Super. 245, 250, 661 A.2d 397, 399 (1995). In order to prove such a case the plaintiff must present a medical expert who can testify, to a reasonable degree of medical certainty, that the conduct of the physician deviated from the accepted standard of care, and that the deviation was the proximate cause of the harm to the plaintiff. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990). The proximate cause requirement is met in a case such as this if the plaintiff produces an expert who opines to a reasonable degree of medical certainty that the physician’s deviation from the standard of care increased the risk of harm to the plaintiff, and that this type of harm was in fact sustained. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).

A party may move for summary judgment as a matter of law “if, after completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2(2).

The question presented by defendant’s summary judgment motion in this case is whether the report of plaintiffs’ expert witness, Alan M. Greenspan M.D., dated September 14,1998, states with the required reasonable degree of medical certainty that the acts or omissions of defendant did in fact increase the risk of cardiopulmonary arrest to decedent. Dr. Greenspan’s report does state that there were four variations or deviations from standard practice by defendant. See defendant’s motion for summary judgment, exhibit “C,” report of Alan Greenspan M.D., dated September 14,1998, p. 2. However, in discussing the issue of causation the report merely states:

“It is likely that if the patient’s clinical condition was appropriately diagnosed as unstable angina and the patient did undergo a prompt catheterization and intervention, it may have prevented his ultimate sudden cardiac death...Defendant’s motion for summary judgment, exhibit “C,” p. 2. (emphasis added)

A medical expert does not have to testify with absolute certainty. Mitzelfelt, supra, 526 Pa. at 62, 584 A.2d at 892. Nor are there any “magic words” that he must use. Smith v. Grab, 705 A.2d 894, 900 (Pa. Super. 1997). Nevertheless, to be sufficient an expert opinion must be held to a reasonable degree of certainty.

“An expert fails this standard of certainty if he testifies that the alleged cause ‘possibly,’ or ‘could have’ led to the result, ... or even that it was ‘very highly probable’ that it caused the result.” Kravinsky v. Glover, 263 Pa. Super. 8, 21, 396 A.2d 1349, 1356 (1979). (citations omitted)

Similarly, an expert report does not meet the required standard of certainty where it states that the alleged deviation from the standard of care “in all likelihood . . . may have hastened” the progression of an illness or a disease. Hoffman, supra at 255, 661 A.2d at 402.

In reviewing a motion for summary judgment, we must examine the record in the light most favorable to the non-moving party, and all doubts are to be resolved against the moving party. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). Moreover, summary judgment should be granted only in cases that are clear and free from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991).

However, even when we view Dr. Greenspan’s report in this light, the report does not measure up. Dr. Greenspan merely opines that it is “likely” that defendant’s actions “may have” increased the risk of death to decedent.

This opinion is not offered to a reasonable degree of medical certainty. Under the current state of the law in Pennsylvania such an opinion falls short. It fails to satisfy plaintiffs’ burden of establishing a prima facie case of medical negligence. Kravinsky, supra; Hoffman, supra. Therefore, defendant is entitled to summary judgment in her favor as a matter of law.

ORDER

Now, March 24, 1999, upon consideration of defendant’s motion for summary judgment and plaintiffs’ response thereto, after oral argument and for the reasons set forth in the accompanying opinion, it is ordered that said motion be and hereby is granted, and judgment shall be entered in favor of defendant against plaintiffs.