author: NEALON, J.,

text:
    Rasieleski v. Connor

      C.P. of Lackawanna County,
    no. 98-CV-4139.

      Gerald J. Hanchulak, for plaintiff.

      Benjamin A. Nicolosi, for defendant.
    April 24, 2002
   NEALON, J.,

Plaintiff’s post-triai motion in this case raises the recurring issue of when a jury in a personal injury action may properly decline to award noneconomic damages to a plaintiff who has established the causal negligence of a defendant. Since the defense medical expert opined at trial that plaintiff’s alleged injury was not related to the tortious incident in question, the jury was free to accept the defense medical evidence as credible and to conclude that defendant’s negligence did not cause compensable pain. Therefore, there was a reasonable evidentiary basis for the jury’s decision to award no damages for noneconomic harm and the plaintiff’s motion for a new trial on damages will be denied.

I. FACTUAL BACKGROUND

Plaintiff Mark Rasieleski commenced this civil action against defendant James A. Connor Jr. based upon a slip and fall incident which allegedly occurred on November 26, 1997, on property that was owned by Connor. During trial, Rasieleski presented the testimony of his treating physician, J. Robert Gavin Jr. M.D., in support of his claim that he had injured his right elbow in the fall. Dr. Gavin testified that he first treated Rasieleski on January 28, 1998, some two months after the alleged fall, at which time he diagnosed “some loose bodies of his olecranon and . . . some medial and lateral epicondylitis, which means a tendonitis of the elbow.” (See deposition testimony of J. Robert Gavin Jr. M.D. dated 4/16/01, pp. 7, 9.) On February 13, 1998, and April 17, 1998, Dr. Gavin surgically removed Rasieleski’s olecranon bursa and the loose bodies from his right elbow, and on July 16, 1998, Rasieleski was discharged on a “PRN” basis. (Id., pp. 9-13, 17-18, 27-28.) Dr. Gavin opined that Rasieleski’s right elbow injury and his consequent treatment and medical bills were causally related to the fall on November 26,1997, (id., pp. 19-21), although he later acknowledged on cross-examination that Rasieleski’s right elbow condition could have been related to repetitive use of his right elbow during his employment as a mason. (Id., pp. 25-27.)

The defense countered Dr. Gavin’s opinions by offering the deposition testimony of Mark W. Scinico M.D., who had examined Rasieleski on August 6,1999, pursuant to Pa.R.C.P. 4010. Based upon the conflicting history that Rasieleski had provided to his attending physicians regarding the etiology and onset of his right elbow pain, Dr. Scinico’s review of Rasieleski’s medical records and the results of his physical examination, Dr. Scinico opined that Rasieleski’s olecranon bursitis and loose bodies were not causally related to the fall. (See deposition testimony of Mark W. Scinico M.D. dated 3/26/01, pp. 28-31.) Dr. Scinico indicated that if the damage to the olecranon had been caused by direct trauma to the tip of the elbow as claimed by Rasieleski, “there should have been a significant clinical finding there” such as a “black and blue mark, swelling, bleeding, cuts, contusion [or] something that would [have] prevented] him from moving the arm” when he first presented to the emergency room. (Id., p. 30.) Dr. Scinico reasoned that since “[t]here was no tenderness over the tip of the elbow and there was normal range of motion” during the initial emergency room visit, the olecranon bursitis was not caused by the fall. (Id., pp. 30-31.) Dr. Scinico also concluded that as of the date of his examination on August 6,1999, Rasieleski did not require any further treatment nor did he have any physical restrictions imposed upon him. (Id., pp. 31-32.)

The jury found both parties causally negligent and in accordance with the Comparative Negligence Act, apportioned 70 percent responsibility to Connor and 30 percent comparative fault to Rasieleski. The jury compensated Rasieleski $10,726.20 for his medical expenses, but failed to award any damages for past and future pain and suffering, mental anguish, discomfort, inconvenience, embarrassment, humiliation, distress, disfigurement and loss of the ability to enjoy the pleasures of life. The jury verdict was thereafter molded to $7,508.34 to reflect Rasieleski’s comparative negligence of 30 percent.

Rasieleski filed a timely “motion for post-trial relief on the issue of damages only pursuant to Pa.R.C.P. 227.1” in which he argued that the jury’s failure to award non-economic damages “bears no reasonable relationship to the loss suffered by [Rasieleski]” and “is so inadequate that it should not be permitted to stand.” (See plaintiff’s motion for post-trial relief, ¶¶13-14.) Connor opposes the request for post-trial relief and asserts in the alternative that in the event that Rasieleski’s post-trial motion is granted, a new trial should be awarded on liability as well since “the issues of negligence and damages are so intertwined in this case that they cannot be fairly separated.” (See defendant’s answer to plaintiff’s motion, p. 3.) Following the completion of oral argument on March 4, 2002, this matter became ripe for disposition.

II. DISCUSSION

(A) Standard of Review

A new trial should be granted only when the jury’s verdict is so contrary to the evidence that it shocks one’s sense of justice. Davis v. Mullen, 565 Pa. 386, 390, 773 A.2d 764, 766 (2001); Fanning v. Davne, 795 A.2d 388, 393 (Pa. Super. 2002). A new trial is not warranted due to a mere conflict in the testimony, Mano v. Madden, 738 A.2d 493, 495-96 (Pa. Super. 1999) (en banc), or because the trial judge, on the same facts, would have arrived at a different conclusion. Fischer v. Troiano, 768 A.2d 1126, 1129 (Pa. Super. 2001). Rather, a jury verdict may be set aside on the grounds of inadequacy only where “the injustice of the verdict [stands] forth like a beacon.” Davis, supra at 391, 773 A.2d at 766; Fischer, supra.

A jury is free to believe all, part or none of the evidence presented and may selectively accept as credible any part of a witness’s testimony and disregard the remaining portions. Summers v. Giant Food Stores Inc., 743 A.2d 498, 507 (Pa. Super. 1999); Fischer v. Troiano, 44 D.&C.4th 372, 377 (Lacka. Cty. 2000), aff’d, 768 A.2d 1126 (Pa. Super. 2001). Thus, “[e]ven if testimony is uncontradicted, the jury is not required to accept everything or anything a party presents.” Bezerra v. National R.R. Passenger Corp., 760 A.2d 56, 63 (Pa. Super. 2000). Nevertheless, this rule is tempered by the requirement that the verdict must bear some reasonable relation to the loss suffered by the plaintiff as demonstrated by the uncontroverted evidence presented at trial. Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 637 (1995); Fischer, 44 D.&C.4Ü1 at 377. “The synthesis of these conflicting rules is that a jury is entitled to reject any and all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic.” Neison, supra at 521, 653 A.2d at 637; Hobbs v. Ryce, 769 A.2d 469, 474-75 (Pa. Super. 2001).

(B) Reasonable Relationship Between Jury Verdict and Trial Evidence

The question of when a jury may properly decline to award any damages for noneconomic harm depends, in part, upon whether the defense has conceded the existence of an accident-related injury that has caused compensable pain and suffering. Although that decision is largely a fact specific determination based upon the evidence introduced at trial, the Pennsylvania courts have reached varying conclusions as to what constitutes a compensable injury. Many of those arguably conflicting holdings appear to have as their genesis the Supreme Court decision in Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988).

In Boggavarapu, a plaintiff who had been bitten by a dog brought a personal injury action against the dog owner who, in turn, joined the hospital where the plaintiff had received two tetanus shots. The basis for the claim against the hospital was the plaintiff’s complaint that the tetanus needle had pierced his sciatic nerve. After the jury returned a verdict finding only the dog owner liable and awarding the plaintiff the cost of his emergency room treatment, while declining to award any damages for pain and suffering, the trial judge ordered a new trial on the issue of damages and the Superior Court affirmed the grant of a new trial. In reversing the lower court, the Supreme Court remarked:

“We have held and hold now that there are injuries to which human experience teaches there is accompanying pain----Those injuries are obvious in the most ordinary sense: the broken bone, the stretched muscle, twist of the skeletal system, injury to a nerve, organ or their function, and all the consequences of any injury traceable by medical science and common experience as sources of pain and suffering.... Pain, of varying degree, may indeed follow small injury and be greater in its consequence than the initial blow. It may aggravate existing defects of the person, exploding latent diseases or precipitate, into present pain, what otherwise might have passed or been long delayed, absent the immediate injury____Pain may be subjective, and if believed, is compensable.... If the pain, however, has no known medical source and is subjective to the person, the triers of fact must believe and accept that it could and in fact exists. They are not to be faulted, however, if they do not believe all they are told and all that their common experience does not accept. That is not to say, they may disregard obvious injury. It is, however, to say that they are not obliged to believe that every injury causes pain or the pain alleged.” Boggavarapu, supra at 167, 542 A.2d at 518. (citations omitted)

Noting that the plaintiff “did not complain that the dog bite itself caused his injury” and instead alleged that “[a]ll his complaints were the product of the tetanus needle which he complained pierced his sciatic nerve,” the Boggavarapu court reasoned that the jury was at liberty to conclude that the plaintiff’s dog bite was “a transient rub of life and living, a momentary stab of fear and pain, or neither.” Id. at 167-68, 542 A.2d at 518. Since the jurors exculpated the hospital from liability and “found a tort in the dog bite, but found no pain because the pain alleged was the needle and not the dog,” the court held that the jury was entitled to award no damages for pain and suffering. Id. at 168, 542 A.2d at 519.

The Supreme Court later tailored its ruling in Boggavarapu to apply in cases where the defense acknowledges the presence of an accident-related injury and merely challenges the severity and permanency of the injury. In Neison, supra, the jury returned a zero verdict even though the defense medical witness testified that the plaintiff had suffered a neck sprain and shoulder blade sprain which would have taken three to five months to resolve. The trial judge granted a new trial on damages, but the Superior Court reversed the lower court and the Supreme Court thereafter “granted allocatur to determine if the Superior Court’s decision was in conflict with our decision in Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988).” Neison, supra at 519-20, 653 A.2d at 636. In affirming the lower court’s grant of a new trial, the Neison court observed that “the medical testimony of both parties established that Ms. Neison suffered from objective injuries, the defense expert only disagreeing as to their extent.” Id. at 524, 653 A.2d at 639. Hence, the court concluded that “[wjhere even the medical expert produced by the defense conceded the injury, the jury’s disbelief was unwarranted” and the jury was required to award some damages for noneconomic harm. Id. at 527, 653 A.2d at 640. Compare Catalano v. Bujak, 537 Pa. 155, 161, 642 A.2d 448, 451 (1994) (if the defense does not admit the existence of an injury, the jury is free to disbelieve the plaintiff’s evidence on damages and thereby refuse to award damages for pain and suffering).

Based upon Neison and Boggavarapu, the Superior Court has consistently held that if the defense affirmatively introduces expert medical testimony conceding the existence of an injury which is attributable to the tort at issue, the jury must award some damages for non-economic harm in order for the verdict to be reasonably related to the uncontested evidence presented at trial. See e.g., Fischer, 768 A.2d at 1130-31 (new trial on damages warranted where jury awarded damages for medical expenses, but not for pain and suffering, even though both parties’ medical experts agreed that plaintiff had suffered a compression fracture of the thoracic vertebrae); Burnhauser v. Bumberger, 745 A.2d 1256, 1261 (Pa. Super. 2000) (since the defense medical expert testified that plaintiff suffered a soft tissue injury which should have resolved within six months of the accident, “the jury was required at least to compensate [plaintiff] for all damages related to her injuries that resulted from [defendant’s] negligence during that six-month period.”); Mano, 738 A.2d at 497 (“It is impermissible for a jury, in a personal injury case, to disregard the uncontroverted testimony from the experts for both parties that the plaintiff suffered some injury as a result of the accident in question.”). Furthermore, even if the defense does not present expert testimony acknowledging an injury related to the accident, a jury must nonetheless award damages if defense counsel admits “the existence and cause of [plaintiff’s] injury in his closing argument.” Kruczkowska v. Winter, 764 A.2d 627, 630 (Pa. Super. 2000). Conversely, if the defense disputes the existence of an injury or argues via a medical expert that the plaintiff’s injury predated the accident or is otherwise unrelated to the defendant’s tortious conduct, the jury may properly refuse to award damages for noneconomic loss. See e.g., Bezerra, 760 A.2d at 61 (“where the medical expert presented by the defense merely recounted the subjective complaints of the plaintiff and opined that the asserted injuries were not a consequence of the occurrence, the jury was certainly free to find that the plaintiff did not sustain a compensable injury.”); Summers, 743 A.2d at 507 (jury could refuse to award damages since the defendants contested the nature and cause of the plaintiff’s injuries); Livelsberger v. Kreider, 743 A.2d 494, 495-97 (Pa. Super. 1999) (zero verdict upheld on the grounds that defendant presented expert testimony indicating that plaintiff’s symptoms predated the accident).

The relatively bright line of distinction recognized by -the foregoing case law was obfuscated somewhat by a series of subsequent rulings which granted new trials after juries had declined to award noneconomic damages in cases in which the defense introduced no medical testimony at trial. See Monschein v. Phifer, 771 A.2d 18 (Pa. Super. 2001); Hobbs, 769 A.2d at 474. Any ambiguity in this respect was promptly clarified by the Supreme Court holding in Davis, supra. In that case, the defense did not present a medical witness and instead relied upon the testimony of the plaintiff’s treating physician who “could not say for certain if the spinal injury was related to the accident or from another cause, including any one of the three prior automobile accidents that [plaintiff] admitted to being involved in.” Davis, supra at 389, 773 A.2d at 765-66. After the jury awarded the plaintiff compensation for his medical expenses only, the trial court denied a motion for a new trial on damages. In attempting to reconcile the “seemingly inconsistent holdings” in cases where juries had declined to award noneconomic damages, the Davis court expressly abrogated Dougherty v. McLaughlin, 432 Pa. Super. 129, 637 A.2d 1017 (1994) and remarked:

“Today, we hold that a jury’s award of medical expenses without compensation for pain and suffering should not be disturbed where the trial court had a reasonable basis to believe that: (1) the jury did not believe the plaintiff suffered any pain and suffering, or (2) that a preexisting condition or injury was the sole cause of the alleged pain and suffering.” Davis, supra at 391, 773 A.2d at 767.

Since the plaintiff’s treating physician “admitted that he could not say for certain if the spinal injury was related to the accident or whether it was caused by some other event,” the court determined that “there was a reasonable basis for the jury to believe: (1) that Davis did not suffer pain and/or (2) that his alleged injury was not caused by the negligence of the defendant.” Id. at 397, 773 A.2d at 770.

More recently, in Majczyk v. Oesch, 789 A.2d 717 (Pa. Super. 2001), an en banc panel of the Superior Court analyzed the propriety of zero verdicts in the post-Davis era. In Majczyk, the only medical evidence offered by the defense was the testimony of the plaintiff’s former treating physician who diagnosed a cervical strain injury eight days after the accident, but further confirmed “that when he examined [plaintiff] three weeks after the accident, she reported that she was 100 percent better.” Id. at 721. Based upon its assessment of earlier appellate precedent on the issue, the Majczyk court concluded that “[t]he synthesis of these opinions is that where a defendant concedes liability and his or her expert concedes injury resulting from the accident that would reasonably be expected to cause compensable pain and suffering, the jury’s verdict is against the weight of the evidence where it finds for the defendant.” Id. at 722. (emphasis in original) Reasoning that a jury may conclude that an insignificant injury does not necessarily result in compensable pain and suffering, the Superior Court stated:

“Thus, while the jury may have concluded that [plaintiff] suffered some painful inconvenience for a few days or weeks after the accident, it may also have concluded that [plaintiff’s] discomfort was the sort of transient rub of life for which compensation is not warranted. Bogga varapu, supra at 167, 542 A.2d at 518. By our decision today, we are not suggesting that a jury cannot award pain and suffering damages for minor injuries. Rather, we hold that the determination of what is a compensable injury is uniquely within the purview of the jury. Davis, supra. As a result, we find no abuse of discretion in the trial court’s refusal to grant a new trial based on the testimony set forth supra.” Id. at 726.

In the case at bar, it would appear illogical for the jury to award medical expenses to Rasieleski by finding that the surgical treatment for his elbow injury was related to the fall while simultaneously concluding that he was not entitled to recover noneconomic damages for that injury. However, unlike the defendants in Neison and its progeny, Connor did not admit that Rasieleski sustained an elbow injury in the fall which caused compensable pain. On the contrary, the defense introduced expert medical testimony which suggested that Rasieleski’s elbow condition was not related to his fall. As the ultimate finder of fact, the jury was free to accept the defense expert’s opinion, and to reject the treating physician’s contrary conclusion, regarding the etiology of Rasieleski’s elbow condition. See Holland v. Zelnick, 329 Pa. Super. 469, 474, 478 A.2d 885, 887 (1984). In light of the conflicting evidence which was presented at trial with respect to the cause and nature of Rasieleski’s elbow injury, there was a reasonable basis for the jury to reimburse Rasieleski for his medical bills but deny him compensation for pain and suffering. See Davis, supra; Catalano, supra; Bezerra, supra. Consequently, since there is evidentiary support in the record for the jury’s refusal to award non-economic damages in this case, Rasieleski’s motion for a new trial on damages will be denied.

ORDER

And now, April 24, 2002, upon consideration of the plaintiff’s “motion for post-trial relief on the issue of damages only pursuant to Pa.R.C.P. 227.1,” the memoranda of law submitted by the parties and the oral argument of counsel on March 4, 2002, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) Plaintiff’s motion for post-trial relief on the issue of damages only pursuant to Pa.R.C.P. 227.1 is denied; and

(2) The clerk of judicial records is directed to enter judgment in favor of the plaintiff and against the defendant in the amount of $7,508.34, not including taxable costs pursuant to Lacka. Co. R.C.P. 275 and post-verdict interest under 42 Pa.C.S. §8101.

      . Following its pronouncement in Davis, the Supreme Court vacated a series of Superior Court rulings and remanded those appeals for reconsideration in light of the standard articulated in Davis. See e.g., McDermott v. Consolidated Rail Corp., 567 Pa. 561, 789 A.2d 203 (2001); Closky v. US Airways Inc., 567 Pa. 70, 785 A.2d 491 (2001).


source: Caselaw Access Project

author: O’BRIEN, J.,

license: Public Domain

text:
    Moore v. Pocono Medical Center

      C.P. of Monroe County,
    nos. 802 Civil 1994 and 31 O.C. 20.

      Kevin A. Hardy, for administrator.

      Lori J. Cerato, for surviving spouse.

      Mark T McGrath, for daughter-heir.
    October 17, 2001
   O’BRIEN, J.,

On December 15, 1992, the register of wills of Monroe County issued letters of administration to Thomas R Moore for the estate of his father Thomas E. Moore who died on July 18, 1992. The application for letters identified a surviving spouse and two sisters, in addition to the administrator, as the persons entitled to share in the proceeds of the estate. The application specifically represented that, “decedent left no will.” When the son/administrator settled a wrongful death and survival action on behalf of the estate in January 1996, he specifically instructed his attorney not to seek court approval of the settlement. This action was taken so that his sisters would not know of the proceeds of the settlement. When the sisters discovered their brother’s deceit, they commenced proceedings in the orphans’ court division. Following an evidentiary hearing this court, inter alia, directed the administrator to file a petition for approval of the wrongful death and survival action as mandated by law. After submission of the petition, a response thereto and submission of briefs and oral argument, the petition for approval of settlement is now before the court for disposition.

When Thomas E. Moore died at the age of 57, his son felt it appropriate to file a lawsuit against the hospital where the father died. When neither the surviving spouse nor two surviving daughters were willing to pursue such a course of action, he obtained a renunciation from them of their right to administer the father’s estate. Although he knew the father had a will, he chose not to probate the will and applied for letters of administration instead. The administrator engaged the services of John Luchsinger, Esquire of Delaware County to commence the medical malpractice action. When an agreement was reached on a settlement, Attorney Luchsinger prepared a petition for court approval of the settlement. (N/T 14; deposition J. Luchsinger.) Attorney Luchsinger did not file the petition because the administrator asked him not to. (N/T 16; dep. J. L.) Incredibly, the settlement proceeds of $850,000 were paid to the administrator when both attorneys in the lawsuit had to be aware that no court of competent jurisdiction had approved the settlement. After deduction of the one-third contingent attorney fee and costs, the net proceeds amounted to $560,235.51. A handwritten inheritance tax return was filed by the administrator reflecting that only 15 percent of the settlement was treated as taxable. A tax in the amount of $4,509.20 was paid to the Commonwealth of Pennsylvania. No accounting was provided by the administrator to his sisters as heirs of the estate nor was any notification provided to them by him of the settlement of the lawsuit. On January 12,1996, Thomas P. Moore wrote two checks to Elizabeth Moore, his mother. The first check was for $2,500 and it represented the family exemption. The second check was for $557,735.51 which represented the balance of the proceeds of the estate. Immediately thereafter, Thomas P. Moore had his mother write a check payable to him for the amount of $560,235.51. As a consequence, the son received all the proceeds of the estate and the mother received nothing. (N/T 92, 96.)

The Probate Estates and Fiduciaries Code provides in pertinent part as follows:

“(a) In general. — Whenever it shall be proposed to compromise or settle any claim, whether in suit or not, by or against an estate, or to compromise or settle any question or dispute concerning the validity or construction of any governing instrument, or the distribution of all or any part of any estate, or any other controversy affecting any estate, the court on petition by the personal representative or by any party in interest setting forth all the facts and circumstances, and after such notice as the court shall direct, aided if necessary by the report of a master, may enter a decree authorizing the compromise or settlement to be made.
“(b) Pending court action.—
“(1) Court order. Whenever it is desired to compromise or settle an action in which damages are sought to be recovered on behalf of an estate, any court or division thereof in which such action is pending and which has jurisdiction thereof may, upon oral motion by plaintiff’s counsel of record in such action, or upon petition by the personal representative of such decedent, make an order approving such compromise or settlement. Such order may approve an agreement for the payment of counsel fees and other proper expenses incident to such action.” (20 Pa.C.S. §3323.)

Furthermore, our Superior Court has held that where wrongful death and survival actions are settled for a single amount, the amount apportioned to the survival action must be approved by a court. Moore v. Gates, 398 Pa Super. 211, 580 A.2d 1138 (1990).

In view of the foregoing provisions of law, the actions of the administrator in this proceeding in collecting the proceeds of the wrongful death and survival action and inducing his mother to sign over the totality of the net proceeds to him is a nullity. It is always troubling to a court to come upon deceptive and fraudulent activities among family members. It is even more troubling that members of the bar participated in this charade and attempt to defend it as innocent activity. In any event, it is this court’s responsibility to determine an appropriate division of the proceeds of the lawsuit.

The division of the proceeds proposed by the administrator was premised upon an exchange of correspondence between the malpractice attorney and an agent of the Commonwealth. While such agreements are frequently given careful consideration by a court in apportioning proceeds of a settlement, in view of the fraudulent posture of this proceeding, such an agreement is not persuasive. Furthermore, no evidence was presented to substantiate the division proposed by the administrator. Indeed, the deceased was only 57 years of age and the items of damages attributable to a survival action certainly had as much value as those attributable to the wrongful death action. Therefore, in the absence of any persuasive evidence to the contrary, we conclude that an equal division of the proceeds of the settlement between the wrongful death action and the survival action is appropriate.

Under the Pennsylvania wrongful death statute, 42 Pa.C.S. §8301, an action may be brought to recover damages caused by the negligent action of another. However, this cause of action is not for damages sustained by the decedent, but rather for damages sustained by the plaintiff by reason of the decedent’s death. Dolan v. Ridge, 58 F. Supp.2d 604 (E.D. Pa. 1999); quoting Dennick v. Scheiwer, 381 Pa. 200, 113 A.2d 318 (1955). An action to recover damages for wrongful death of a person must be brought separately and distinctly from a survival action. Dolan, supra at 607.

Any damages recovered under this statute are not to become a part of the decedent’s estate. Rather any award of damages is to be seen as compensation to individual members of the family for their loss Tulewicz v. SEPTA, 529 Pa. 588, 606 A.2d 427 (1992); Miller v. Preitz, 422 Pa. 383, 221 A.2d 320 (1966); Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968).

Damages for wrongful death have been established for the purpose of compensating the spouse, children, or parents of a deceased individual for any pecuniary losses they may have sustained as a result of the death of the decedent. Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994); Tulewicz v. SEPTA, supra. Ever since the passage of the wrongful death statute, the courts of this Commonwealth have limited the right to prove damages to only those persons who have suffered a pecuniary loss as a result of the death of the decedent. The pecuniary loss has been defined as the loss of support that the persons mentioned in the wrongful death statute have sustained. Armstrong v. Berk, 96 F. Supp. 182 (E.D. Pa. 1951).

It is true that the proceeds of a wrongful death action are to be distributed in accordance with the laws of intestate succession. 42 Pa.C.S. §8301(b). However, it is also true that where the decedent left a dependent wife and several nondependent children, the dependent widow is to take all of the proceeds of a wrongful death action, even if this amounts to the total exclusion of the children. McDonald v. Pennsylvania Rail Road Co., 108 F. Supp. 293 (E.D. Pa. 1952); Seymour v. Rossman, 449 Pa. 515, 297 A.2d 804 (1972); Armstrong v. Berk, supra.

In the case at bar, it is undisputed that all three children were not dependent upon the father. Therefore, the widow Elizabeth Moore is entitled to the entire proceeds of the wrongful death action. Since this entitlement precedes both the actions of the son in exchanging checks with his mother and the disclaimer advanced by the daughters signed by the mother in May 2001, we will make specific provisions in our order for distribution of the monies to the widow.

Unlike a wrongful death action, the survival action is not a new cause of action, but merely a cause of action that continues in the personal representative of a decedent. A survival action is brought by the personal representative of the decedent, and is an action that the decedent himself could have brought had he survived. In essence, this type of action is brought on behalf of the decedent. Donlan v. Ridge, 58 F. Supp.2d 604 (E.D. Pa. 1999); Pozzuolo Estate, 433 Pa. 185, 249 A.2d 540 (1969); 20 Pa.C.S. §§3372 and 3373. Since a survival action is essentially an action that the decedent could have brought by himself, if he were alive, the amount recovered in this type of action becomes part of the testator’s estate. Pozzuolo Estate, supra.

Thus, any amount allocated as proceeds of the survival cause of action passes on to the heirs of the decedent either through his will (if probated) or by the laws of intestate succession. In the case at bar, the administrator chose not to probate the will. A will is not to be considered to be valid or effective until it is probated. Burns v. Kabboul, 407 Pa. Super. 289, 595 A.2d 1153 (1991); O’Callaghan v. O’Brien, 199 U.S. 89, 25 S. Ct 727 (1905); Tarver v. Tarver, 34 U.S. 174, 9 L. Ed. 91 (1835). Therefore, in the case at bar, the proceeds in the survival action must be distributed in accordance with the intestate laws of the Commonwealth.

The Pennsylvania laws of intestate succession are very clear on the amount of an estate a surviving spouse is entitled to take from the estate of a deceased spouse. “The intestate share of decedent’s surviving spouse is: (3) If there are surviving issue of the decedent all of whom are issue of the surviving spouse also, the first $30,000 plus one-half of the balance of the intestate estate . . . .” 20 Pa.C.S. §2102. That portion of the proceeds of the survival action not passing to the widow would pass to the three children of the deceased in equal shares. 20 Pa.C.S. §2103. Therefore, the administrator must pay to the surviving spouse $30,000 plus one-half of the proceeds of the survival action The remaining balance of the proceeds of the survival action shall be divided equally among the three surviving children.

In the orphans’ court action, the surviving daughters have filed objections to the account filed by the administrator. In view of the foregoing conclusions in this opinion, a new account will be necessary. Therefore, the objections will be sustained and a new account ordered.

ORDER

And now, October 17, 2001, upon consideration of the petition of Thomas P. Moore, administrator of the estate of Thomas E. Moore, for approval of the settlement of a wrongful death and survival action, it is ordered as follows:

(1) The administrator is authorized to settle both actions for the amount of $850,000.

(2) Attorneys’ fees in the amount of $283,333 to John A. Luchsinger P.C. and expenses in the amount of $1,393 are approved.

(3) The net proceeds of the settlement shall be allocated 50 percent to the wrongful death action and 50 percent to the survival action.

(4) The proceeds of the wrongful death action shall be paid by the administrator to Elizabeth Moore, surviving spouse.

(5) The proceeds of the survival action shall be deposited by the administrator forthwith in an estate account in an insured financial institution maintaining an office in Monroe County, Pennsylvania. Distribution shall be in accordance with order of this court following submission of an amended account ordered this date.

DECREE

And now, October 17, 2001, upon consideration of the foregoing opinion, it is ordered as follows:

(1) Thomas P. Moore, administrator of the estate of Thomas E. Moore, deceased, shall file in the office of the clerk of the Orphans’ Court of Monroe County within 60 days of the date hereof an amended account and proposed scheduled of distribution consistent with the foregoing opinion of this court.

(2) The account and further proceedings shall comply with the provisions of Rule 6 of the Orphans’ Court Rules of Monroe County.


author: GARDNER,

text:
    Hacker v. Colonial League

      C.P. of Lehigh County,
    no. 2001-E-0050.

      John P. Karoly Jr., for plaintiffs.

      Leonard N. Zito and Anthony J. Martino, for defendant Colonial League.

      Robert T. Sonnenberg, for defendants Wilson and Piperato, representing Palisades School District.

      Steven R. Serf ass, for defendants Egan and D.G. Smith, representing Palmerton School District.

      Kevin C. Reid, for defendants J.C. Smith and Repsher, representing Pen Argyl School District; Knauer and Deeb, representing Salisbury School District; Nemes and Fanelli, representing Northwestern Lehigh School District; and Bartosh and Amts, representing Wilson Area School District.

      Marc S. Fisher, for defendants Dietrich and Sheriff, representing Saucon Valley School District.

      Edmund J. Healy, for defendants Gessner and Rissmiller, representing Northern Lehigh School District.

      October 11, 2001
   GARDNER,

Chancellor,

This matter is before the court on the plaintiffs’ petition for preliminary injunction in the nature of a request for a special injunction filed October 4, 2001 by petitioners. Defendant’s answer to petition for preliminary injunction was filed October 10, 2001 on behalf of defendant Colonial League. Oral argument on the request for a special injunction was held before the undersigned on October 10, 2001. For the reasons expressed below, we grant a special injunction.

This dispute involves an alleged violation of the Sunshine Act by the Colonial League in adopting certain new regulations concerning what types of activities cheerleaders at member schools can and cannot perform at athletic contests. Petitioners contend that these new regulations were instituted at closed-door meetings of the league conducted on May 11, August 16 and September 7,2001. Defendants do not dispute that the meetings were not open to the public.

At the original meeting on May 11, 2001, the league adopted the new regulations by a vote of nine to three. Subsequently, the league took a new vote and the regulations were again adopted, but this time by a vote of eight to four. For the reasons expressed below, we grant the petition and temporarily enjoin defendants from enforcing the regulations set forth in paragraph 12 of “Colonial League cheerleading.”

Defendants contest the grant of an injunction on numerous grounds, some of which were set forth in the answer and brief of the league, and others that were articulated by counsel for other defendants at oral argument conducted on October 11,2001. We address defendants’ arguments as follows.

VENUE

Defendants contend that venue is not proper in the Court of Common Pleas for Lehigh County. Pennsylvania Rule of Civil Procedure 2156 sets forth the standard for proper venue when dealing with an unincorporated association such as defendant league. Rule 2156 states in pertinent part:

“(a) Except as otherwise provided by subdivision (b) of this rule, an action against an association may be brought in and only in a county where the association regularly conducts business or any association activity, or in the county where the cause of action arose or in a county where a transaction or occurrence took place out of which the cause of action arose.”

In this case, defendants contend that all of the meetings that were held on the issue of limiting the activities of cheerleaders were conducted at locations outside of Lehigh County. Defendants assert that the Colonial League has no specific league office. Defendants further assert that the league normally conducts its meetings at either the office of the league president A1 Wilson at Palisades High School or at some mutually convenient location, usually in Northampton County, Pennsylvania.

Defendants contend that because all the meetings which involve this issue took place outside of Lehigh County, Pennsylvania, venue in Lehigh County is improper. We disagree.

Rule 2156(a) also provides that venue is proper “in a county where the association regularly conducts business or any association activity ....” Defendant league is an interscholastic athletics league. It conducts athletic contests at all of the member schools, including those member schools located in Lehigh County. We find that the holding of “league” games or events constitutes the conduct of an association activity in Lehigh County for purposes of establishing proper venue. Accordingly, we find that venue in this dispute is proper in Lehigh County.

JURISDICTION

Defendants contend that this court does not have jurisdiction to hear this matter for a number of reasons. First, defendants contend that there is no subject matter jurisdiction as petitioners fail to set forth a cause of action pursuant to the Sunshine Act.

Defendants contend that they are not an agency of the Commonwealth, thus, are not subject to the open meeting provisions of the Sunshine Act. Pursuant to 65 Pa.C.S. §703 an “agency” is defined as:

“The body, and all committees thereof authorized by the body to take official action or render advice on matters of agency business, of all of the following: the General Assembly, the executive branch of government of this Commonwealth, including the governor’s cabinet when meeting on official policymaking business, any board, council, authority or commission of the Commonwealth or of any political subdivision of the Commonwealth or any state, municipal, township or school authority, school board, school governing body, commission, the boards of trustees of all state-aided colleges and universities, the councils of trustees of all state-owned colleges and universities, the boards of trustees of all state-related universities and all community colleges or similar organizations created by or pursuant to a statute which declares in substance that the organization performs or has for its purpose the performance of an essential governmental function and through the joint action of its members exercises governmental authority and takes official action. The term does not include a caucus or a meeting of an ethics committee created under the rules of the Senate or House of Representatives.”

Defendant League contends that it is not an “agency” pursuant to the definition set forth above. It contends that it is an unincorporated association created to facilitate the development of athletics as it reflects positively upon the schools and their educational programs. It further contends that the objective of the Colonial League is to represent interscholastic athletics to the public in a climate which promotes sportsmanship, competitive play and academic achievement.

The league promulgates rules and regulations for athletes and teams concerning interscholastic athletic contests in conjunction with those promulgated by the Pennsylvania Interscholastic Athletic Association (PIAA). The Colonial League contends that it does not recognize cheerleading as a sport, however, it does recognize that it is an activity which supports and enhances interscholastic athletic contests.

Pursuant to 24 PS. §5-511 it is the school board in each school district that is empowered by the legislature to adopt and enforce rules and regulations regarding school activities. Section 5-511 provides in pertinent part:

“(a) The board of school directors in every school district shall prescribe, adopt, and enforce such reasonable rules and regulations as it may deem proper, regarding (1) the management, supervision, control, or prohibition of exercises, athletics, or games of any kind, school publications, debating, forensic, dramatic, musical, and other activities related to the school program, including raising and disbursing funds for any and all of such purposes and for scholarships, and (2) the organization, management, supervision, control, financing, or prohibition of organizations, clubs, societies and groups of the members of any class or school, and may provide for the suspension, dismissal, or other reasonable penalty in the case of any appointee, professional or other employe, or pupil who violates any of such rules or regulations.
“(b) Any school or any class activity or organization thereof, with the approval of the board, may affiliate with any local, district, regional, state, or national organization whose purposes and activities are appropriate to and related to the school program.”

In this case, plaintiffs are likely to be able to establish at a final injunction hearing that the league is prescribing, adopting and seeking enforcement from its member schools of certain rules and regulations concerning interscholastic athletics between league members, including the regulations concerning the activities of cheerleaders which is the subject of this matter. In that role, the league would be acting as a de facto school board. See Patriot-News Co. v. Empowerment Team, 763 A.2d 539, 546 (Pa. Commw. 2000).

In this case, the league has adopted regulations on the activities that cheerleaders can perform at athletic contests. In doing so, the league is acting as an arm of the school boards of the member schools. The legislature has authorized the individual school boards to promulgate such rules and regulations. The respective school boards have empowered the league to make such determinations in the realm of interscholastic athletics.

Because the parties agree that if it were a school board that promulgated the disputed regulations concerning the activities of cheerleaders, it would be subject to the Sunshine Act because school boards are specifically identified as included in the definition of an agency. Moreover, the definition includes “the body, and all committees thereof authorized by the body to take official action. In this case, the school boards have authorized the league to formulate certain rules and regulations. While the league is not an actual committee of the school boards, as stated above, it would be acting as a de facto school board in this context.

If the league were the de facto school board for these purposes, it would be subject to the requirements of the Sunshine Act the same as if it were the school board. Accordingly, we conclude that plaintiffs will be likely to establish that the league falls within the definition of agency as set forth in 65 Pa.C.S. §703.

The Commonwealth Court of Pennsylvania has original jurisdiction over actions involving state agencies and “the courts of common pleas shall have original jurisdiction of actions involving other agencies to render declaratory judgments or to enforce this chapter by injunction or other remedy deemed appropriate by the court.” 65 Pa.C.S. §715. Therefore, because plaintiff is likely to establish that defendant league falls within the definition of agency, and pursuant to section 715 of the Sunshine Act, this court does have subject matter jurisdiction.

Defendants contend that even if we find that subject matter jurisdiction and venue lie with this court, we should not entertain this dispute. Defendants assert that the Pennsylvania Supreme Court has pronounced a general rule that the judiciary will not interfere with affairs of high school athletic associations unless the action complained of is fraudulent, an invasion of property or pecuniary rights or constitutes capricious or arbitrary discrimination. Harrisburg School District v. Pennsylvania Interscholastic Athletic Association, 453 Pa. 495, 503, 309 A.2d 353, 357 (1973). While we agree to the general proposition advanced by defendants, we disagree that we are precluded from ruling in this matter.

As noted by the Commonwealth Court of Pennsylvania in Boyle v. Pennsylvania Interscholastic Athletic Association Inc., 676 A.2d 695 (Pa. Commw. 1996), there is a difference between a court granting a preliminary injunction as opposed to a permanent injunction. A party seeking a preliminary injunction does not have to prove his or her case absolutely as is necessary for the imposition of a final injunction. If a party did have to absolutely prove his or her case, there would be no difference between the two types of injunctions and a party could never obtain a preliminary injunction against an athletic association. Accordingly, because what petitioners seek is a preliminary injunction in the nature of a special injunction, and because plaintiffs will likely be able to establish that the league violated the Sunshine Act in promulgating the regulations at issue, we conclude that this is the proper case where judicial intervention is warranted.

In this case, defendants concede that they did not conduct an open meeting pursuant to the Sunshine Act. Defendants further contend that because the Colonial League is not an agency, it is not required to do so. Plaintiffs contend that the league is required to conform with the policies governing the conduct of open meetings that are required by the Sunshine Act pursuant to 24 P.S. § 16-1604-A. Section 16-1604-A, also known as Act 91, provides at (b)(1) that the PIA A shall take all steps necessary to adopt and adhere to policies governing the conduct of open meetings that conform to the requirements of the Sunshine Act. Petitioners contend that Act 91 also applies to the Colonial League, thus, the league must conduct all of its meetings in conformity with the Sunshine Act.

Defendant league contends that it is not the PIAA, and does not fall within the ambit of Act 91. It further contends that it does not have to comply with the Sunshine Act because it is not an agency for purposes of the Sunshine Act. While we agree with defendant that it does not have to comply with the Sunshine Act in all of its meetings, we conclude as noted above, that when the league acts in the role of de facto school board, it does come under the definition of an agency and must conform to the requirements of the Sunshine Act.

PRELIMINARY INJUNCTION

Next we address the merits of petitioners’ request for a special injunction. Both parties contend that the test when reviewing a petition for preliminary injunction is enunciated by the Commonwealth Court in Patriot-News as follows: “(1) the preliminary injunction must be necessary to prevent immediate and irreparable harm which could not be compensated for by damages; (2) greater injury would result from the denial of the preliminary injunction than from the granting of it; and (3) it would operate to restore the parties to the status quo as it existed prior to the alleged wrongful conduct. In addition to meeting all three criteria, the court must be convinced that plaintiffs’ right to a preliminary injunction is clear ... the general jurisdiction must be warranted.” 763 A.2d at 546-47.

Here, we find that there is no question that the entry of a special injunction is necessary to prevent irreparable harm because, as in Patriot-News, the meetings of the league were closed. To the extent that the meetings were closed, the public and the petitioner cheerleaders in particular were harmed by the denial of the opportunity to witness the decisions made by the league. They were also unable to comment on or supply evidence opposing the enactment of these new regulations concerning the activities that they could perform at athletic events.

Petitioners contend that the new restrictions “cut the heart out” of the activity of cheerleading and that the actions of the league are arbitrary, capricious and not based on any empirical evidence to support the decision. Moreover, they contend that cheerleaders who are high school seniors will never again get the opportunity to exhibit their skills and talents as they could prior to the league’s alleged illegal adoption of the new regulations.

We do not decide whether participation in cheerleading is a legally protected right, as asserted by plaintiffs, or a privilege, as asserted by defendant. That decision is more appropriately deferred to a hearing on a preliminary or final injunction. However, if cheerleading is a legally protected right, loss of the opportunity to cheer cannot be compensated for by money damages. Moreover, no price tag. can be put on the loss of the public’s evaluation of the league’s decision-making process.

We conclude that greater harm would result in not granting the requested relief than to grant the requested injunction. There is no harm to the league because it can properly give notice of a public meeting to reevaluate its previous decision and give the public not only notice of the meeting and an opportunity to attend, but also to provide the public the opportunity to let the league members hear what their concerns are with regard to these regulations.

Moreover, the public’s interest in obtaining the information denied to it by the league conducting its meeting behind closed doors is supported by the actions of the Pennsylvania Legislature regarding the PIAA. While we conclude that Act 91 does not mandate that the league hold all of its meetings in conformity with the Sunshine Act, we find it instructive that the legislature has now required that the PIAA conform its conduct to the Sunshine Act. This comports with the general ideal that meetings of agencies covered by the Sunshine Act should be held in the public light.

We also conclude that the third prong of the test will be satisfied because granting a special injunction will restore the parties to the status quo prior to the enactment of the new regulations concerning the activities of cheerleaders at athletic contests.

Because defendants admit that they conducted the meetings on the issue of cheerleader activities behind closed doors, and because plaintiffs are likely to be able to establish this to be a violation of the Sunshine Act, we conclude that petitioners have a clear right to temporary injunctive relief.

Finally, we address defendants’ contention that petitioners are barred from seeking relief because they had to bring a legal challenge to the league’s meeting in violation of the Sunshine Act within 30 days from the discovery of any action that occurred at a meeting that was not open pursuant to section 713 of the Sunshine Act. For the following reasons we find that petitioners did bring their legal challenge in a timely manner.

Section 713 of the Sunshine Act states:

“A legal challenge under this chapter shall be filed within 30 days from the date of a meeting which is open, or within 30 days from the discovery of any action that occurred at a meeting which was not open at which this chapter was violated, provided that, in the case of a meeting which was not open, no legal challenge may be commenced more than one year from the date of said meeting. The court may enjoin any challenged action until a judicial determination of the legality of the meeting at which the action was adopted is reached. Should the court determine that the meeting did not meet the requirements of this chapter, it may in its discretion find that any or all official action taken at the meeting shall be invalid. Should the court determine that the meeting met the requirements of this chapter, all official action taken at the meeting shall be fully effective.” 65 Pa.C.S. §713.

First, we note that counsel for the Northern Lehigh defendants admitted that on September 16, 2001 Notre Dame changed its vote on this issue and made it 8-4 in favor of the new regulations. Previously, the vote was 9-3 in favor. This action was commenced by the filing of a complaint on October 4, 2001. Accordingly, the action was commenced within 30 days of the new vote, and less than one year from the date of the initial meeting of the league on May 11, 2001.

Accordingly, for all the foregoing reasons we grant the petition for preliminary injunction in the nature of a request for a special injunction. Pursuant to Pa.R.C.P. 1531(b)(1) the special injunction shall be effective upon the posting of a bond by plaintiffs in the amount of $2,500.

Pursuant to Pa.R.C.P. 1531(d) an injunction granted without notice to defendants shall be deemed dissolved unless a hearing on the continuance of the injunction is held within five days after the granting of the injunction. Here, as noted above, the special injunction was granted with notice to all defendants after oral argument in which all defendants participated through counsel. Accordingly, upon posting of the bond, the special injunction shall remain in effect until a hearing on the preliminary injunction is held or until further court order.

DECREE

Now, October 11, 2001, upon consideration of plaintiffs’ petition for preliminary injunction in the nature of a request for a special injunction filed October 4, 2001; upon consideration of defendant’s answer to petition for preliminary injunction filed October 10, 2001 by defendant Colonial League; upon consideration of the briefs of the parties; after oral argument held before the undersigned on October 9,2001; and for the reasons expressed in the accompanying adjudication, it is ordered and decreed that plaintiffs’ request for a special injunction is granted.

It is further ordered and decreed that defendants are enjoined from enforcing paragraph 12 of the Colonial League cheerleading regulations enacted at meetings held May 11, August 16, and September 7 and 16, 2001.

It is further ordered and decreed that the within special injunction shall become effective upon the filing by plaintiffs with the clerk of courts — civil division of a bond in the amount of $2,500 complying with all requirements of Pa.R.C.P. 1531(b)(1), or by the deposit of $2,500 cash in accordance with Pa.R.C.R 1531(b)(2).

It is further ordered and decreed that a hearing on plaintiffs ’ petition for preliminary injunction shall be held on November 26, 2001, at 9:30, courtroom no. 2, Lehigh County Courthouse, or at such later time as the schedule of the court permits.

      . Petitioners in this action are students of various high schools in the Colonial League who are cheerleaders for their respective schools brought by and through their parents and natural guardians. There are 121 named parents or natural guardians on behalf of 93 named cheerleaders listed as plaintiffs in the complaint which is attached to the petition for preliminary injunction.

      . In addition to the Colonial League, there are also 16 other named defendants who are the present or former athletic directors and high school principals from the Palisades, Palmerton, Pen Argyl, Sahsbury, Saucon Valley, Northern Lehigh, Northwestern Lehigh and Wilson Area School Districts. The named individuals in this matter are sued individually and as members of defendant Colonial League. The individual school districts are not named as defendants in this case. The only party to file an answer and brief in opposition to the petition for preliminary injunction was defendant Colonial League.

      . Plaintiffs’ counsel originally presented his petition on October 4, 2001 as an emergency ex parte request for a five-day special injunction. The undersigned listed the matter for argument on October 10, 2001 and directed plaintiffs’ counsel to give notice to all defendants, which he did.

      . 65 Pa.C.S. §§701-716.

      . The Colonial League is an unincorporated association which refers to itself as a “cooperative union” of 12 Pennsylvania Interscholastic Athletic Association schools. The members of the league are Bangor, Catasauqua, Northern Lehigh, Northwestern Lehigh, Notre Dame, Palisades, Palmerton, Pen Argyl, Salisbury, Saucon Valley, Southern Lehigh and Wilson Area.

      . The provision that petitioners complain of is contained in paragraph 12 of “Colonial League cheerleading.” Paragraph 12 states: “Cheerleaders will not be permitted to perform pyramids/mounts, stunts, any type of rolling/tumbling, etc. on any surface.”

      . At oral argument, counsel for defendants represented that a subsequent vote was taken on September 16, 2001, at which time the representatives from Notre Dame changed their vote from favoring the new regulations to opposing the new regulations.

      . Act of June 29, 1984, P.L. 438, no. 93 §1, as amended, 24 P.S. §5-511.

      . Enrolled bill reads “employee.”

      . Act of November 22,2000, P.L. 672, no. 91 §5, as amended, 24 P.S. §16-1604-A.


author: WARM AN, J.,

text:
    Watson v. English

      C.P. of Fayette County,
    no. 1221 of 1999, G.D.

      Michael Macko, for plaintiffs.

      William D. Phillips, for defendant.
    January 19, 2001
   WARM AN, J.,

Presently before this court for disposition is defendant’s motion for summary judgment to Carolyn and Daniel Watson’s complaint. In his motion, defendant avers that plaintiffs are unable to adduce sufficient evidence on issues essential to their case on which they bear the burden of proof such that a jury could render a verdict in their favor. Therefore, he claims that he is entitled to judgment as a matter of law. After oral argument, full consideration of the record, applicable law, briefs of counsel, and for reasons more fully discussed herein, defendant’s motion for summary judgment is Granted.

BACKGROUND

This action arises out of the alleged medical malpractice of defendant in his treatment of plaintiff, Carolyn Watson. Defendant is a dermatologist licensed to practice in the Commonwealth of Pennsylvania, with a professional office located atR.D. # 1, Box 373, Smithfield, Fayette County, Pennsylvania.

On or about July 1, 1997, defendant treated plaintiff, Carolyn Watson, for a skin disorder and injected medication into her right arm. Plaintiffs allege that defendant negligently injected the medication into plaintiff Carolyn Watson’s arm. They further allege that, subsequent to the injection, she began to experience severe soreness, tenderness, pain and numbness in her right arm, and as a result of the injection has suffered various other injuries.

During the course of discovery, plaintiffs indicated that they had not yet retained an expert. Following various motions for sanctions, defendant filed a motion to compel the production of an expert report, and on August 2, 2000, an order was entered directing plaintiffs to identify any and all expert witnesses they intended to call at the time of trial within 60 days, and to provide a report of such expert(s) outlining their opinions and the basis for the same within 90 days.

Both deadlines set by the court passed with plaintiffs failing to provide either the names of any expert witnesses or reports. On or about November 20, 2000, defendant filed a motion to preclude plaintiffs from using expert testimony at the time of trial. On November 27, 2000, the court granted defendant’s motion and entered an order precluding plaintiffs from presenting expert testimony of any nature in support of any theory of negligence, causation, or damages. On December 5, 2000, defendant filed the motion for summary judgment now before this court.

DISCUSSION

Pa.R.C.P. 1035.2 provides in pertinent part:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(2) if, after the 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.”

The note following the rule provides that when a motion is based on subparagraph (2), the adverse party must come forth with evidence showing the existence of facts essential to the cause of action.

One purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). In a motion for summary judgment, the non-moving party must adduce sufficient evidence on issues essential to its case on which he bears the burden of proof such that a jury could return a verdict in its favor. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996); O’Rourke v. Pennsylvania Department of Corrections, 730 A.2d 1039 (Pa. Commw. 1999).

In passing on a motion for summary judgment, the court must examine the record in a light most favorable to the non-movant and resolve any doubt in his favor. Swartley v. Hoffner, 734 A.2d 915 (Pa. Super. 1999) allocatur denied, 747 A.2d 902 (1999); Doe v. Philadelphia Community Health Alternatives AIDS Task Force, 745 A.2d 25 (Pa. Super. 2000), allocatur granted, 758 A.2d 166 (2000).

In the context of actions for medical malpractice, the plaintiff’s evidence must establish that: (1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm. See Miller v. Sacred Heart, 753 A.2d 829 (Pa. Super. 2000).

Plaintiff, in a medical malpractice case, is further required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Smith v. Grab, 705 A.2d 894 (Pa. Super. 1997).

If after the completion of discovery, the medical malpractice plaintiff fails to produce expert medical opinion addressing the elements of his cause of action within a reasonable degree of medical certainty, he has failed to establish a prima facie case and may not proceed to trial, and at this juncture, defendant, as movant, is entitled to summary judgment. See Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000).

In the absence of competent evidence of medical opinion, a medical malpractice plaintiff may avoid summary judgment only if the matter is so simple, and the lack of skill or want of care so obvious, as to be within the range of ordinary experience and comprehension of even nonprofessional persons. Id. See also, Lira v. Albert Einstein Medical Center, 384 Pa. Super. 503, 559 A.2.d 550 (1989), allocatur denied, 592 A.2d 1302 (1990).

Therefore, the issue for this court to determine is whether or not defendant is entitled to judgment as a matter of law because plaintiff has failed to adduce sufficient evidence on issues essential to their claim of medical malpractice, on which they bear the burden of proof, such that a jury could return a verdict in their favor.

Plaintiff argues in opposition to defendant’s motion for summary judgment that expert testimony is not necessary because plaintiff’s injuries are within the realm of common knowledge. Plaintiffs allege that Carolyn Watson suffered various injuries resulting from the injection including injuries to the ulnar, radial, and median nerves. They further allege that she sustained injuries to the skin, tissues, muscle, bone, tendons, cartilage, ligaments, and blood vessels of the right arm and hand, and that defendant injected the medication in a manner contrary to the established medical procedures.

We believe that the allegations of negligence contained in the plaintiffs’ complaint clearly require detailed professional knowledge. The injuries are well beyond the range of ordinary experience and comprehension of nonprofessionals and therefore, must be established by expert medical testimony.

Plaintiffs argue in the alternative that despite the order of November 27, 2000, precluding them from calling an expert at the time of trial, defendant’s negligence can be established by his own testimony and by his actions following plaintiff’s treatment.

Applying the facts of this case to the standards outlined above, it is apparent that plaintiffs have not met their burden. Again, to survive a motion for summary judgment, plaintiffs are required to adduce sufficient evidence on issues essential to their case, on which they bear the burden of proof, such that a jury could return a verdict in their favor.

Here, plaintiffs’ claim relates solely to the defendant’s alleged medical malpractice. Plaintiffs, however, have adduced no evidence whatsoever to support their claim. They simply avow that defendant’s testimony at time of trial will sufficiently establish the elements of their claim. A similar argument was made and rejected in Eaddy v. Hamaty, 694 A.2d 639, 642-43 (Pa. Super. 1997). There, the court stated:

“Appellant does not attempt to address the paucity of his prima facie case. Instead, he avows that his expert will provide the necessary . . . testimony at trial. Summary judgment motions under new Rule 1035.2(2) are intended to prevent such a scenario: ‘The purpose of the rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after relevant discovery has been completed. . . .’ We remind appellant that he must state a prima facie case before he will be allowed to proceed to trial.” (emphasis in original)

We agree, and because here plaintiffs have failed to advance any evidence whatsoever to substantiate the existence of the elements of their claim relating to the defendant’s alleged medical malpractice, defendant’s motion for summary judgment is Granted.

ORDER

And now, January 19,2001, upon consideration of the motion for summary judgment filed by defendant, Robert S. English, and upon further consideration of the record, applicable law, and briefs and arguments of counsel, it is hereby ordered and decreed that defendant’s motion for summary judgment is granted.

      . We note that we are not addressing the issue of whether defendant, a medical expert, may be required to give expert testimony that is relevant to his own allegedly negligent conduct, but rather whether or not defendant is entitled to judgment as a matter of law because plaintiffs have failed to adduce sufficient evidence on issues essential to their claim of medical malpractice on which they bear the burden of proof, such that a jury could return a verdict in their favor.