author: NANOVIC, J.,

text:
    Serfass v. Commonwealth, Department of Public Welfare, Office of Children, Youth and Families

      C.P. of Carbon County,
    no. 03-1762.

      William J. McCarthy III, for plaintiff.

      Myra Sacks, for defendant.
    June 23, 2004—
   NANOVIC, J.,

FACTUAL AND PROCEDURAL BACKGROUND

On or about December 18, 2002, the plaintiff, Gregory D. Serfass (Father), received notice that he was the subject of an investigation by the Carbon County Office of Children and Youth Services because an unidentified individual or individuals reported that Father sexually abused his son, Nicholas. The report of abuse was investigated by Children and Youth and ultimately determined to be unfounded on or about February 14, 2003.

Father is involved in separate child custody proceedings in Northampton County and suspects that his estranged wife (Mother) maliciously made the allegations of abuse to deprive him of custody of his children, or acted in concert with others for the same purpose. Mother has denied involvement in the allegations.

Alleging that the identity of the party or parties who reported the allegations to Children and Youth is relevant and important information in his custody proceedings, Father requested a copy of the report made to Children and Youth and that the identity of the reporting party be disclosed. A copy of the report redacted to remove the name of the reporting source and any persons who cooperated in the investigation was provided to Father, however, the defendant, Commonwealth of Pennsylvania, Department of Public Welfare, has denied Father’s request to identify the reporting source.

On July 21, 2003, Father commenced the present suit seeking to compel DPW to provide Father with copies of all reports, documents and/or records concerning the charges of sexual abuse filed against him and to disclose the identity of the party or parties filing such charges. DPW has filed a number of preliminary objections to the complaint, one of which we believe to be dispositive of all others and which we will grant: Father has failed to state a claim upon which relief can be granted.

DISCUSSION

The confidentiality provisions of the Child Protective Services Law (the Act), 23 Pa.C.S. §§6301-6385, are integral to its purposes and allow for only limited exceptions. 23 Pa.C.S. §§6302(b) (stating purposes of Act) and 6339 (imposing blanket confidentiality on all reports and information obtained concerning alleged instances of child abuse). The exceptions fall within one of two broad categories of persons authorized to receive information gathered under the Act: (1) limited access to file information under specific circumstances to persons and agencies outside the circle of privacy created by the Act, 23 Pa.C.S. §6340(a); and (2) almost complete access to file information to any person who is the “subject of a report” and thereby included within the circle of privacy circumscribed by the Act, 23 Pa.C.S. §6340(b). Commonwealth v. Kennedy, 413 Pa. Super. 95, 102, 604 A.2d 1036, 1040 (1992), appeal denied, 531 Pa. 638, 611 A.2d 711 (1992).

. As the alleged perpetrator of abuse, Father is one of the “subjects] of the report” as defined by the Act and entitled to almost complete access to file information. Section 6340(b) provides:

“(b) Release of information to subject of report. — At any time and upon written request, a subject of a report may receive a copy of all information, except that prohibited from being disclosed by subsection (c), contained in the Statewide central register or in any report filed pursuant to section 6313 (relating to reporting procedure).” 23 Pa.C.S. §6340(b).

This information, with the identity of the person making the report excised, has been provided to Father. Section 6340(c) provides:

“(c) Protecting identity of person making report.— Except for reports pursuant to subsection (a)(9) and (10), the release of data that would identify the person who made a report of suspected child abuse or the person who cooperated in a subsequent investigation is prohibited unless the secretary finds that the release will not be detrimental to the safety of that person. Law enforcement officials shall treat all reporting sources as confidential informants.” 23 Pa.C.S. §6340(c).

Notwithstanding the specific bar to disclosure of the identity of the person making the report contained in section 6340(c), Father argues that this court has the authority “in connection with any matter involving custody of a child” to request and review any reports and files which the court considers relevant. 23 Pa.C.S. §6340(a)(5.1). While such authority undoubtedly exists in the court, its exercise by this court would be of no avail to Father. The ability of the court to obtain the information authorized by section 6340(a)(5.1) and the bar imposed by section 6340(c) against releasing the identity of the reporting party “unless the secretary finds that the release would not be detrimental to the safety of that person” are neither inconsistent nor in conflict with one another. Nothing contained in section 6340(a) (5.1) authorizes, much less supersedes, the disclosure expressly prohibited by section 6340(c). See 1 Pa.C.S. § 1932 (constxuing statutes or parts of statutes in pari materia); cf. Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (finding that a criminal defendant’s Sixth Amendment rights under the United States Constitution did not entitle a defendant accused of sexually molesting his daughter to personally view all materials in the child welfare services file; an in camera review of the county agency records by the trial court and disclosure to the defense of only those materials that might change the outcome of the trial struck the proper balance between the confidentiality interest protected by statute and the defendant’s due process rights).

Moreover, Father has alleged no finding by the secretary that release of the information Father requests would not be detrimental to the safety of the reporter of the abuse. To the contrary, in denying Father’s request, DPW expressly acknowledged that disclosure of the identity of such persons is only permitted under exceptional circumstances and that such circumstances did not exist in this case.

That the information Father requests may indeed be relevant to the pending custody proceedings in Northampton County is not the standard by which we must measure the request. Instead, because the privilege of confidentiality created by the Act is qualified, rather than absolute, the interests protected by this privilege must be weighed against the interests Father seeks to advance in the custody proceedings. V.B.T v. Family Services of Western Pennsylvania, 705 A.2d 1325, 1334 (Pa. Super. 1998), aff’d, 556 Pa. 430, 728 A.2d 953 (1999). In V.B.T., the court described the interests protected by the Act as follows:

“The confidentiality provisions of the [Act] have several clear functions in light of the statute’s broad purposes: to encourage reporting of abuse by ensuring that persons with knowledge of abuse are not deterred from reporting it by the prospect of the abuser learning their identity and seeking retribution; to facilitate the investigation of abuse by assuring potential witnesses that the information they provide to investigators will not be made public; to facilitate the rehabilitation and treatment of abused children and their families by encouraging open, frank communications with agency personnel and treatment providers; to encourage the effective operation of the child protective service by enabling it to keep complete and comprehensive files on all aspects of a family’s circumstances without fear that information placed in such files will be subject to scrutiny by persons not involved in the process of rehabilitating the family; and to prevent the innocent victims of abuse from also becoming victims of public stigma by guarding information about the intimate details of their lives from the prying eyes of outsiders.” 705 A.2d at 1335-36.

In contrast, Father seeks to obtain the identity of the reporter for possible use in discrediting Mother or attacking her character in the pending custody proceedings. Denial of the information requested will not foreclose Father’s action. Nor is it alleged that denial will severely cripple Father’s quest for primary custody. The contrary appears from our review of the report provided to Father.

With the exception of the identity of the reporter, Father has been provided a complete copy of the report. In this report, it is clear that the investigation was prompted by the child’s asking, “Why does daddy touch me down there?” The child, according to the report, has a pervasive developmental disorder, was not consistent in his answers when questioned by the investigator, and did not appear credible. There is nothing in the report to suggest that the person reporting the alleged abuse acted other than out of an abundance of caution based on the child’s statements.

In this case, it is not claimed that the information requested by Father implicates his constitutional rights or will advance one of the objectives of the Act. While it might well be true, as Father contends, that an unscrupulous parent can use the Act as a weapon in custody proceedings, it is also true that were we to grant Father’s request, parents who sincerely believe a child is being abused by the other parent will be reluctant to report such abuse, if the report, later determined to be unfounded, opens the door for their identity to be disclosed and used against them in a pending custody proceeding. This is the very risk that the requirement of anonymity is intended to minimize.

When viewed broadly, the benefit Father seeks to derive from the information requested is dwarfed by the policy and purposes of the Child Protective Services Law. The Act’s purpose of encouraging the reporting of child abuse, while at the same time withholding from disclosure the identity of the person making the report, is both a valid purpose and a legitimate means of achieving that purpose. Indeed, the legislative decision to maintain the confidentiality of the reporting source demands our recognition notwithstanding the possible relevance which would exist if it were determined that Mother, or someone on her behalf, reported the alleged abuse:

“[P]rivileges which are established by constitution, common law or statute are ‘designed to protect weighty and legitimate competing interests.’ Id. Thus where the legislature has considered the interests at stake and has granted protection to certain relationships or categories of information, the courts may not abrogate that protection on the basis of their own perception of public policy unless a clear basis for doing so exists in a statute, the common law, or constitutional principles. Commonwealth v. Moore, 526 Pa. 152, 159, 584 A.2d 936, 940 (1991) (‘[T]he general powers of the courts do not include the power to order disclosure of materials that the legislature has explicitly directed be kept confidential.’) No such basis was found by the trial court or asserted by the plaintiffs in this case.” 705 A.2d at 1335.

CONCLUSION

When balancing the competing interests of the father and the Commonwealth in this case, the Commonwealth’s interests in maintaining the confidentiality of the person who reported the suspected abuse is paramount. Under these circumstances, we will grant DPW’s request to dismiss the complaint.

      . Since the filing of this action, Father has acknowledged that he is not entitled to receive confidential information contained in the requested records and reports and has elected not to pursue such request. (Father’s brief in opposition to preliminary objections, p. 6.)

      . DPW has filed the following objections: (1) that the relief Father seeks is equitable in nature and, because common-law equity jurisdiction does not exist in Pennsylvania, absent a statute authorizing the relief sought, which Father has failed to identify, the court is without power to grant Father’s request, see Commonwealth v. Ryan, 459 Pa. 148, 155, 327 A.2d 351, 354 (1974) (“There is no common-law equity jurisdiction in Pennsylvania; a court may exercise only those equitable powers which have been specifically conferred by the legislature.”); (2) that the Judicial Code vests exclusive original jurisdiction of this matter in the Commonwealth Court, citing 42 Pa.C.S. §761(a); plaintiff, however, cites to 23 Pa.C.S. §6340(a)(5.1) as conferring authority upon this court to obtain the information requested; (3) that absent an exception, of which none have been identified, this court itself is prohibited from receiving or reviewing confidential child abuse information, 23 Pa.C.S. §6340; (4) that Father in this action is seeking to collaterally attack DPW’s previous denial of his request and has failed to preserve the issue for review, see B.T. v. Department of Public Welfare, 828 A.2d 436 (Pa. Commw. 2003), appeal denied, 845 A.2d 819 (Pa. 2004); (5) that no right exists to obtain the requested information; and (6) that to the extent the relief sought by Father would require DPW to act affirmatively, Father’s claim is barred by principles of sovereign immunity, see 1 Pa.C.S. §2310; Youst v. PennDOT, 739 A.2d 625, 627 (Pa. Commw. 1999).

      . It is appropriate in this respect to note that “DPW’s interpretations of the requirements of the [Act] are entitled to deference because DPW is the agency charged with implementation of the statute.” In re Estate of Wagner, 791 A.2d 444, 446 (Pa. Commw. 2002), appeal granted, 572 Pa. 694, 813 A.2d 848 (2002).


source: Caselaw Access Project

author: GEORGE, J.,

license: Public Domain

text:
    Lewis v. Gettysburg Diagnostic Imaging P.C.

      C.P. of Adams County,
    no. 03-S-254.

      Joseph L. Hitchings, for plaintiff.

      Michael J. Salmanson, for defendant.
    May 26, 2004
   GEORGE, J.,

This matter comes before the court on a motion for judgment on the pleadings filed by Gettysburg Diagnostic Imaging P.C. (GDI). For the reasons set forth below, the motion for judgment on the pleadings is denied.

In the spring of 2001, GDI and Dr. Joffre P. Lewis entered into discussions concerning Dr. Lewis’ potential employment by GDI. At that time, Milford Diagnostic Imaging employed Dr. Lewis in the State of Delaware. Apparently, the discussions led to correspondence dated June 30, 2001, wherein GDI offered Dr. Lewis a position in the corporation. Although no person at GDI signed the offer letter, Dr. Lewis claims to have accepted the offer of employment and returned and executed documents back to GDI. Dr. Lewis claims that he was informed that he would begin his employment with GDI on September 10, 2001. Apparently, in reliance upon this information, Dr. Lewis appeared before the credentials committee of Gettysburg Hospital on July 26,2001. At that time, Dr. Joseph Jones, a partner in GDI and a member of the credentials committee for Gettysburg Hospital, informed Dr. Lewis that he would receive temporary privileges at Gettysburg Hospital. Anticipating his approaching employment in Gettysburg, Dr. Lewis placed his Delaware home for sale and purchased a property in Hanover, Pennsylvania. The cordial relationship between the parties, however, began to deteriorate. Due to issues relative to Dr. Lewis’ malpractice insurance, commencement of Dr. Lewis’ employment was delayed. During the delay, various correspondence occurred between the parties and others. Among the correspondence were Dr. Lewis’ references to GDI which indicated mistrust, disagreement and language which was less than flattering to GDI and its management. Included among the correspondence was Dr. Lewis’ disclaimer of any contract between the parties. Various correspondence also included a letter from Dr. Lewis to the president of Gettysburg Hospital dated September 16, 2001. In that letter, Dr. Lewis advised that he had sought and obtained alternative employment. The final piece of correspondence included in the record is a letter from Dr. Jones to Dr. Lewis dated September 20, 2001, wherein Dr. Jones terminates negotiations concerning GDI’s employment of Dr. Lewis.

The unfortunate history of the parties’ relationship culminated on March 6,2003, when Dr. Lewis instituted a suit against GDI for breach of contract. GDI has moved for judgment on the pleadings advancing several alternative theories.

A number of the theories GDI advanced can be addressed summarily. Each of these theories assumes, for the sake of argument, that a contractual relationship existed between the parties. GDI argues that even assuming such a relationship, Dr. Lewis has, as a matter of law, failed to comply with a condition precedent to consummation of the contract or, in the alternative, terminated the contractual relationship prior to any act of termination by GDI. GDI further argues that even assuming the contractual relationship remained intact, Dr. Lewis’ actions provided “just cause” for his termination.

The granting of judgment on the pleadings is proper only where the pleadings establish that there are no material facts in dispute, thereby making a trial by jury unnecessary. Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 541 Pa. 424, 429, 664 A.2d 84, 86 (1995). While each of the arguments advanced by GDI find support in the record and may be attractive to a jury, it is premature to reach conclusions in regard to those arguments as a matter of law. For instance, GDI urges that Dr. Lewis failed to provide the necessary information to secure medical malpractice coverage which was a condition precedent to employment. Clearly, the document referenced as a contract includes language that employment was “contingent upon [Dr. Lewis’] approval for malpractice coverage.” As a matter of law, lack of such approval, if factually established, may be fatal to Dr. Lewis’ claim. Franklin Interiors v. Wall of Fame Management Co. Inc., 510 Pa. 597, 601, 511 A.2d 761, 762 (1986) (noting if a condition precedent to a contract is unsatisfied, no binding contract exists). However, at this stage of the litigation, those factual issues have not been developed. Unless the factual disputes are eliminated, resolution of this issue remains for a jury. See generally, English, 541 Pa. at 428-29, 664 A.2d at 86.

Similarly, I am unwilling to rule, as a matter of law, that Dr. Lewis was the first to terminate the relationship between GDI and himself. Although Dr. Lewis’ September 16, 2001 letter to Gettysburg Hospital referencing alternative employment is intriguing, the effect of that letter is for a fact-finder. See generally, id. It is noteworthy that the September 16, 2001 letter is not clear notice from one party to another as to intent but rather, Dr. Lewis wrote it to an entity which is not a party to the alleged contract. As such, the relief GDI sought based upon this correspondence is not definitive as a matter of law.

GDI’s related argument that Dr. Lewis’ actions justified termination is also a matter for the jury. The determination on what constitutes just cause for termination of an employment relationship is a matter to be determined by the fact-finder. Wilson v. Benjamin, 332 Pa. Super. 211, 481 A.2d 328 (1984) (discussing role of fact-finder at trial). While it is certainly reasonable to conclude that Dr. Lewis’ actions throughout the parties’ relationship support termination, it is similarly possible that Dr. Lewis’ actions may be viewed as appropriate responses to GDI once the facts are fully developed. Accordingly, it is not clear to me that a trial would be a fruitless exercise. See generally, Otterson, 690 A.2d at 1166.

Having preliminarily resolved a number of the issues GDI raised, it is now appropriate to address the more fundamental argument advanced by the motion for judgment on the pleadings. The final argument raised by GDI’s motion strikes at the heart of the relationship between the parties. Specifically, GDI asserts that Dr. Lewis cannot legally state a claim for breach of contract since the employment relationship between the parties was “at-will.” This argument merits meaningful discussion.

The presumption under Pennsylvania law is that an employment relationship is generally considered to be “at-will” and, absent a contract, may be terminated by either party at any time, for any reason or for no reason. See Darlington v. General Electric, 350 Pa. Super. 183, 188, 504 A.2d 306, 309 (1986). Because of this presumption, there is no common-law cause of action for termination of an “at-will” employment relationship. See Scott v. Extracorporeal Inc., 376 Pa. Super. 90, 545 A.2d 334 (1988). An employee, however, can defeat the “at-will” presumption and establish a cause of action for breach of contract. See generally, Robertson v. Atlantic Richfield Petroleum, 371 Pa. Super. 49, 537 A.2d 814 (1987). Pennsylvania courts have recognized three circumstances sufficient to rebut the presumption of at-will employment as follows: (1) there is sufficient additional consideration provided by the employee to the employer which infers that the parties intended that the employment relationship not be terminable at-will; (2) there is an employment agreement for a definite duration; (3) there is an employment agreement specifying that the employee will be discharged for just cause only; or (4) an applicable recognized public policy exception exists. Robertson, 371 Pa. Super, at 58, 537 A.2d at 819. The burden of overcoming the presumption of at-will employment “rests squarely” upon the employee. Rutherfoord v. Presbyterian-University Hospital, 417 Pa. Super. 316, 323, 612 A.2d 500, 503 (1992).

Dr. Lewis bases his cause of action upon the June 30, 2001 offer which he claims to have accepted. He argues that this meeting of minds between the parties is definitive in establishing an employment relationship for a determinate amount of time. I disagree.

A careful review of the June 30, 2001 document reveals that it specifies a salary for the first year of employment to be paid in 12 equal monthly installments. The document further provides an annual salary for the second year of employment “[i]f we agree to continue the relationship.” There are additional references throughout the document to benefits and partnership opportunities. A number of the benefit provisions are couched in language which calculates the application of a benefit over an annual period of time. Dr. Lewis relies upon this language in urging that it conclusively established a definitive time of employment.

The essence of contract interpretation is fulfilling the reasonable expectations of the parties. See Darlington, 350 Pa. Super, at 196, 504 A.2d at 312 (citing Magnan v. Anaconda Industries Inc., 193 Conn. 558, 479 A.2d 781 (1984)). Although experience tells us that an employee and an employer can effectively enter a contract for a specific duration, definitiveness in doing so is required. “Courts are highly reluctant to make definite that which the parties themselves failed to do.” Darlington, 350 Pa. Super, at 196-97, 504 A.2d at 312. An employment contract for a broad, unspecified duration of time is insufficient. Murphy v. Publicker Industries Inc., 357 Pa. Super. 409, 417, 516 A.2d 47, 51 (1986). Moreover, salary computed over a specific time period, such as, annually, does not establish that the contract is intended for that period of time. Booth v. McDonnell Douglas Truck Services Inc., 401 Pa. Super. 234, 241, 585 A.2d 24, 27 (1991). Where a party attempts to modify an at-will relationship to one that cannot be severed absent “just cause,” an unambiguous statement of intention is required. See Veno v. Meredith, 357 Pa. Super. 85, 101, 515 A.2d 571, 579 (1986) (concluding an employer’s statements of hope that an employee will remain in his employ until retirement is insufficient). I find nothing in the June 30, 2001 document that evidences such a clear intention to justify a substantial modification to the presumption of at-will employment. Accordingly, as a matter of law, Dr. Lewis has not overcome the presumption of at-will employment based upon the theory that the parties entered a contract for a specific duration.

Dr. Lewis also maintains that there was sufficient additional consideration present which, by itself, is sufficient to overcome the at-will presumption. In his complaint, Dr. Lewis contends that in reliance upon his employment with GDI, he moved his family to a home he purchased in Hanover, Pennsylvania, after selling his previous residence in Delaware. Also, in reliance with his employment with GDI, Dr. Lewis alleges that he purchased a tail policy for malpractice insurance at cost to him. Finally, he claims to have lost vacation benefits from his previous employer due to the change in employment.

A classic definition of what constitutes sufficient additional consideration was set forth in Darlington when the court remarked:

“Thus, a court will find ‘additional consideration’ when an employee affords his employer a substantial benefit other than the services which the employee is hired to perform, or when the employee undergoes a substantial hardship other than the services which he is hired to perform. ‘If the circumstances are such that a termination of the relation by one party will result in a great hardship or loss to the other, as they must have known it would when they made the contract, this is a fact of great weight in inducing a holding that the parties agreed upon a special period.’ ” Id. at 201-202, 504 A.2d at 315 (citing 3 A. Corbin, Corbin on Contracts §684 (1960)).

In Lucacher v. Kerson, 158 Pa. Super. 437, 45 A.2d 245 (1946), an employee was promised permanent employment in his new job. After moving his family to Philadelphia from New York, the employee was abruptly discharged from his new position after three days into his employment. Under these circumstances, the Pennsylvania Superior Court found the presence of additional consideration. Similarly, in Cashdollar v. Mercy Hospital of Pittsburgh, 406 Pa. Super. 606, 595 A.2d 70 (1991), an employee surrendered secure employment at a position where he had been employed for four years and moved his pregnant wife and two-year-old daughter from Fairfax, Virginia, to Pittsburgh, Pennsylvania, in reliance upon employment. The Superior Court found these hardships to be sufficient additional consideration to rebut the at-will presumption. While it is true that no additional consideration exists where an employee has suffered detriments that are “commensurate with those incurred by all manner of salaried professionals,” see Veno, 357 Pa. Super. 85, 102, 515 A.2d 571, 580, our appellate courts have found circumstances similar to those Dr. Lewis pled to be sufficient additional consideration. Although, in appropriate cases, the court may determine as a matter of law whether the threshold of sufficient additional consideration has been met to rebut the presumption of at-will employment, see Darlington, cited above; Veno, cited above, whether an employee has given additional consideration sufficient to rebut the presumption of at-will employment is generally a question of fact for the jury. Murphy, 357 Pa. Super, at 417, 516 A.2d at 51. In light of the Superior Court’s decision in Cashdollar and Lucacher, it appears possible that a jury might reasonably interpret the allegations Dr. Lewis pled in a manner so as to conclude that Dr. Lewis has rebutted the at-will presumption. Clearly, reasonable minds might differ in weighing this issue. See Booth, cited above; Greene v. Oliver Realty Inc., 363 Pa. Super. 534, 526 A.2d 1192 (1987).

For the foregoing reasons, the attached order is entered.

ORDER

And now, May 26, 2004, the defendant’s motion for judgment on the pleadings is denied.

      . For a ruling on a motion for judgment on the pleadings, all of the opposing parties’ allegations of fact must be viewed as true. Otterson v. Jones, 690 A.2d 1166 (Pa. Super. 1997). Accordingly, this factual background is derived from the allegations in Dr. Lewis’ complaint and the admitted allegations in Dr. Lewis’ reply to GDI’s new matter.

      . In paragraph 10 of his complaint, Dr. Lewis alleges a start date of September 1,2001. However, in paragraph 14 of his complaint, Dr. Lewis alleges his start date to be September 10,2001. The later date is consistent with GDI’s answer which denies paragraph 10 of Dr. Lewis’ complaint and alleges the tentative start date to be September 10,2001. Since the distinction between September 1, 2001 and September 10, 2001, is not important to the resolution of the matter before this court, this court will treat paragraph 10 as a typographical error.

      . In an e-mail dated September 11, 2001, from Dr. Lewis to Dr. Jones, Dr. Lewis claims that he told a third party that: “I have no formalized contract with GDI . . . .” Later, in that same e-mail, when speaking of the potential for breach of contract, Dr. Lewis parenthetically claims: “there we go with that phantom contract again.”

      . The initial complaint contained two separate causes of action and included GDI and the individual partners in that corporation as defendants. Count I of the original complaint alleged a breach of contract action while Count II alleged a claim of civil conspiracy. Count II of the complaint and the cause of action against the individual defendants was dismissed by opinion and order dated July 10, 2003, following the filing of preliminary objections by each of the defendants.

      . In an exhibit attached to the answer and new matter of GDI, Dr. Lewis claims to have obtained “insurance with MIXX----” See GDI’s answer and new matter, exhibit 2.

        . Dr. Lewis does not advance claims that the parties specifically contracted that employment could only be terminated for cause or that public policy considerations overcome the presumption of at-will employment. An independent review of the pleadings in this matter reveals that neither such exception to the presumption of at-will employment is applicable instantly. I conclude, therefore, that neither theory would provide a basis to avoid the granting of judgment on the pleadings in favor of GDI.

      . An example of such language is found in paragraph four of the document which reads as follows: “Paid time off. You will be entitled to eight weeks paid time off for vacation, sick time and seminars, etc.

      . In fact, the June 30, 2001 document contains references to the contrary. For instance, a noncompetition provision of the document contemplates termination of the relationship by either party without providing any notice requirements or other time periods. Additional paragraphs of the document call for the allocation of certain expenses if the employment relationship is terminated within the first two years of employment. See Dr. Lewis’ complaint, exhibit A, ¶¶3, 9. Implicit in the language of these paragraphs is recognition that the parties contemplated a possibility of a termination in the relationship at the will of either party.

      . The definition of tail policy is not clear from a reading of the pleadings, however, it appears that a tail policy is a malpractice insurance policy which provides coverage for a medical doctor for any claims made after employment terminates, but arose during employment.

      . Dr. Lewis also alleges that he provided additional consideration consisting of expenses relating to him accepting employment in Carlisle, Pennsylvania, and an alleged financial loss involved in the sale of his Hanover home and the purchase of a Carlisle home. These items, however, are more correctly described as damages and cannot possibly have been contemplated by the parties as additional considerations from an employee to an employer in reliance upon employment. See generally, Darlington, cited above.

      . This opinion does not preclude future motions for summary judgment once the factual circumstances of this litigation are developed. This decision is based solely on the pleadings as they currently present. English, 541 Pa. at 429, 664 A.2d at 86.


author: WORTHINGTON, J.,

text:
    Grabko v. Grabko

      C.P. of Monroe County,
    no. 758 DR 1993.

      Jeffrey J. Kash, for plaintiff.

      Michael R. Muth, for defendant.
    April 2, 2004
   WORTHINGTON, J.,

Thomas R. Grabko, Father, and Diane Grabko, Mother, come before this court concerning custody of their son, Thomas Grabko, age 14, bom February 26, 1990. Mother and Father were married on July 29,1989. Father filed a complaint in divorce on May 2, 2000. The parties were divorced by decree dated February 5, 2004. The parties first began to litigate this custody dispute in 1993. At all time material hereto the parties have enjoyed shared legal and shared physical custody with Mother having primary physical custody.

On May 1,2003, Father filed a petition for modification of custody, which is now before us for disposition. On March 18,2004, we conducted a full evidentiary hearing on Father’s petition for modification of custody. At the hearing we heard testimony from Mother, Father and Thomas.

Based upon the testimony before this court and the arguments of counsel, we find it is in Thomas’ best interest to grant Father’s petition.

In Pennsylvania, the state legislation has defined elements which are to be considered in custody cases. The statute, in relevant part, is as follows:

“(a) General rule.—
“(1) In making an order for custody or partial custody, the court shall consider the preference of the child as well as any other factor, which legitimately impacts the child’s physical, intellectual and emotional well-being.
“(2) In making an order for custody, partial custody or visitation to either parent, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child.” 23 Pa.C.S. §5303.

As interpreted by the courts of Pennsylvania, the statute requires that in any custody case, the court’s paramount concern must be for the best interest of the children. Wiseman v. Wall, 718 A.2d 844 (Pa. Super. 1998); Mumma v. Mumma, 380 Pa. Super. 18, 550 A.2d 1341 (1988). The child’s physical, intellectual, moral and spiritual well-being is of the utmost importance. Wiseman, 718 A.2d at 847; Swope v. Swope, 455 Pa. Super. 587, 689 A.2d 264 (1997). However, these concepts are nebular terms rendering them amenable to neither simple definition nor application. See Morris v. Morris, 271 Pa. Super. 19, 412 A.2d 139 (1979). There are no presumptions in favor of either parent and the court must make its determination based solely on the particular facts and circumstances of each case. Sawko v. Sawko, 425 Pa. Super. 450, 625 A.2d 692 (1993). In short, this court is obliged to consider all relevant factors that could affect the child’s well-being. Andrews v. Andrews, 411 Pa. Super. 286, 601 A.2d 352 (1991), alloc. granted, 533 Pa. 605, 618 A.2d 397 (1992), aff’d., 533 Pa. 354, 625 A.2d 613 (1993). Keeping the above standards in mind, and taking into account all of the testimony and evidence before the court, we find that it is in Thomas’ best interest to grant Father’s petition.

We first considered each parent’s employment stability. Father is employed by New Jersey Transit and earns approximately $40,000 a year. Mother is currently employed as a certified nurse and works approximately 40 hours a week at a rate of $10 an hour. Mother works the overnight shift from 11 p.m. to 7 a.m. There is no evidence that either party is facing any job instability. Thus, the parties’ employment stability is equal.

Although neither party is facing employment instability, we do have some concerns related to Mother’s employment. Presently Mother works the overnight shift and Thomas is home alone at night. Because of this, there is no one to assist Thomas in the event of an emergency. Additionally, it has come to our attention that Thomas has an excessive number of absences from school. We suspect that Thomas may be staying up late since there is no one to make sure that he goes to bed at a reasonable hour. We believe this may be contributing to his excessive number of absences. Since Father holds a job with regular hours, we believe that awarding him primary physical custody will alleviate both of these concerns.

We next considered any occupants of the custodial home. Thomas currently resides with Mother in a small trailer located in Lehighton, Pennsylvania. Thomas has his own bedroom and there are no other occupants in the home. Father currently lives alone in Kunkletown, Pennsylvania. Father’s home has three bedrooms. JR, a/k/a fur-fur, who Thomas considers to be his dog, also resides with Father. During his testimony, Thomas indicated that he has a great deal of affection for fur-fur. We believe that Thomas will benefit by being reunited with his dog. Father also intends to make a spare bedroom available to Thomas for recreational purposes.

There was little evidence presented concerning the condition of either parties’ home since neither parent believes this is of grave importance.

While staying with Father, Thomas is exposed to a number of positive recreational activities. This is significant since Thomas is not involved in any sports and/ or clubs. Thomas does, however, enjoy skateboarding. Father has built Thomas several skateboarding ramps located at his home. This is significant since both parties have indicated that Thomas hangs around with friends that they consider undesirable. With the skateboarding ramps located at his house, Father is able to keep an eye on Thomas and his friends. Father has also enrolled Thomas in guitar lessons and introduced him to the world of toy trains, a hobby that Thomas and Father enjoy together. We believe the availability of these recreational activities should help prevent Thomas from getting involved with the wrong crowd. It also allows Thomas to enjoy activities with Father, strengthening their relationship.

We next considered Thomas’ wishes. The child’s express wishes are not controlling in our custody determination, but they do constitute an important factor that must be carefully considered in determining what is in the child’s best interests. Myers v. DiDomenico, 441 Pa. Super. 341, 346, 657 A.2d 956, 958 (1995). When considering the child’s wishes, we must be mindful of the child’s maturity, intelligence and reasoning. Id. During the hearing, Thomas testified that he loves both of his parents. Thomas never expressed a clear preference for living with either of the parties. We found Thomas to be somewhat immature for his age. He has changed his mind several times throughout the course of litigation regarding his preference. We believe he prefers to have the court make its decision based on factors other than his expressed preference. These feelings are certainly not unusual for a child involved in custody litigation.

We next considered Thomas’ spiritual and intellectual well-being. We have no concerns regarding Thomas’ spiritual well-being. Neither of the parties regularly attends church and Thomas does not participate in church activities. We do, however, have several concerns regarding Thomas’ intellectual well-being. During the hearing, Father testified that he is seeking primary physical custody in order to improve Thomas’ academic performance.

The evidence of record establishes that Thomas is chronically absent from school, and that he frequently fails to complete his homework assignments. Thomas is currently a student at the Palmerton Area Middle School. F[e is in the eighth grade. During the current academic year, Thomas has been absent from school approximately 15 days. (See plaintiff’s exhibit 1, report from Palmerton Area Middle School.) In the seventh grade, Thomas was absent 34 days, and he was tardy an additional four days. (See plaintiff’s exhibit 1, report from Palmerton Area Middle School.) Father testified credibly that Thomas missed approximately 54 days in the sixth grade. We are alarmed by Thomas’ poor attendance. As a consequence of Thomas’ poor attendance record and failure to complete his homework assignments, he has failed numerous subjects.

It is Mother’s position that Thomas has several health problems which have caused him to be absent from school. Mother claims that Thomas suffers from sinus disease and irritable bowel syndrome. Mother believes that the school absences were necessary due to these medical conditions. In response, Father testified credibly that Thomas often exaggerates his illnesses in order to avoid going to school. This conclusion is also supported by the report prepared by Dr. Abbruzzese. (See joint exhibit 4, report of psychological evaluation.) Father also notes that Thomas continued to miss school even after his sinus problem was resolved. Although we believe that Thomas has several valid medical conditions, we believe the record supports Father’s claims.

With these observations in mind, we note that Father has shown greater concern regarding Thomas’ school attendance. The record establishes that Father has taken several proactive measures in an attempt to improve Thomas’ poor attendance record. Father testified credibly that for a period of time he would call Thomas every morning to make sure that he was going to school. We also find it significant that last year Thomas attended summer school classes every day when Father had custody. In fact, Thomas also attended summer school following the sixth grade during Father’s period of custody. Thomas would have been held back in school both times had he not successfully completed summer school.

If Father is awarded primary physical custody, we believe Thomas’ school attendance will drastically improve. During the hearing Mother stressed the fact that Father is at work when Thomas leaves for school. For this reason, Mother claims that Thomas will still be able to skip school even if Father is awarded primary physical custody. Initially, we note that Mother is also at work when Thomas leaves for school. In addition, Father testified credibly that he has located a neighbor who is willing to come to his home in the morning, after he leaves for work, and make sure Thomas leaves for school. Additionally, Thomas’ perfect summer school attendance during Father’s period of custody demonstrates that Father has been able to achieve progress in this area. We also agree with Father and believe that his ability to achieve significant progress in this area has been impeded by the fact that he does not have primary physical custody.

Father has also shown far greater concern regarding Thomas’ academic performance. Father routinely calls and meets with Thomas’ teachers, as well as other school officials, regarding his progress. Father was also more informed about Thomas’ homework assignments. We believe Father will take proactive measures to improve Thomas’ academic performance if he is awarded primary physical custody. Father testified that if he is awarded primary physical custody he will begin by contacting the Sylvan Learning Center for additional instruction for Thomas. Father also indicated that he would not allow Thomas to go out after school until he has completed his homework assignments.

We find Mother’s response to Thomas’ academic struggles to be inadequate. Mother’s demeanor during her testimony made it apparent that she has adopted a lackadaisical attitude toward Thomas’ schooling. In fact, it seems as though Mother has given up any hope of correcting deficiencies in this area. We believe the attitudes of the parties could not be in any greater contrast. For example, Mother testified that Thomas needs to take responsibility for his own performance, and that there were no corrective measures that she could take. Mother also testified that she only meets with his guidance counselor every couple of months. We also find that Mother is less concerned about missed homework assignments than is Father. In support of this, we note her testimony that she occasionally checks the homework hotline and that she only occasionally checks to see whether Thomas has completed his assignments.

We note that Mother appeared upset when she testified about Father’s decision to have Thomas attend summer school during his period of custody. Mother testified that her plans to have Thomas attend summer school during her period of custody were thwarted by Father’s actions. Mother appeared highly agitated when she was testifying about this matter. We find this to be disturbing in light of the fact that Thomas had perfect attendance and managed to hand in all of his assignments during this period. In our opinion, Mother should be pleased with Thomas’ results during this period. We suspect she is upset since the progress that Thomas made during this period supports Father’s petition.

Although we agree with Mother and believe that Thomas should eventually assume responsibility for his own work, we believe he is in need of strong guidance. This conclusion is supported by Dr. Abbruzzese’s report. (See joint exhibit 4, report of psychological evaluation.) If no immediate action is taken, we believe that Thomas will suffer irreparable injury. If the current custody arrangement is continued, Thomas will continue to struggle in school.

We next considered Thomas’ physical well-being. We have only a few concerns. As noted above, there was testimony indicating that Thomas suffered/suffers from several physical ailments including sinus disease and possibly irritable bowel syndrome. We have no doubt that both parties will be attentive and seek any professional treatment needed by Thomas. However, we are somewhat concerned that Mother smokes in front of Thomas when he is suffering from an upper respiratory infection. We are also concerned that Thomas is smoking cigarettes. Additionally, if Thomas is smoking, immediate discipline is required. We believe Father is far more likely to provide the necessary discipline.

We also have some concerns regarding an incident that occurred during the current academic year. As noted above, Thomas was recently suspended for five days following an incident involving a fake marijuana cigarette. We believe that Father responded to this incident in a far more appropriate manner than Mother. Following the incident, Thomas attended a session with a school counselor. Father accompanied Thomas during the session. Although Mother was aware of the incident, she failed to attend this and other meetings relating to the incident. We find Mother’s attitude regarding this incident to be disturbing. Mother testified that she was unable to attend the meeting due to car problems. It is clear from the record that Mother was home when Father picked Thomas up from her house. Mother never asked for a ride. Although Father never invited her to come along, we believe it was her responsibility to ask for a ride. Mother also failed to attend several subsequent meetings regarding this incident. Mother blames both Father and school officials for failing to inform her about the meetings. We believe Mother should have taken the steps necessary to inform herself, and that she is making excuses for her inactivity.

We next considered Thomas’ emotional and psychological well-being. After studying the report prepared by Dr. Abbruzzese, it is clear that Thomas has suffered as a result of the parties’ failed marriage. Dr. Abbruzzese also indicates that Thomas has a strong relationship with both parties. Thomas confirmed this during his testimony. Although Dr. Abbruzzese’s report indicates that Thomas prefers the current custody arrangement, we believe it is necessary to grant Father’s petition. Thomas loves both parties so it is clear that he will not suffer any additional emotional or psychological harm if we grant Father’s petition. Furthermore, because Thomas has a number of friends who are students at Pleasant Valley, he will not suffer any added emotional strain as a result of adjusting to a new school. Finally, because Thomas has a strong relationship with both parties, we find Father is equally capable of meeting Thomas’ psychological and emotional needs.

We must consider which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the noncustodial parent and the child. 23 Pa.C.S. §5303(a)(2). Since there is no evidence that either party would frustrate physical access with the noncustodial parent, we find this to be a non-factor in our analysis.

We also note that Father has demonstrated a much more insightful attitude in this matter. It is apparent that Father has the ability to effectively put his personal feelings aside and work for what is in Thomas’ best interest. In stark contrast, Mother continues to hold a great deal of animosity toward Father. Rather than acknowledge her own shortcomings, Mother blames Father for her failure to attend meetings and acquire information concerning Thomas. Mother also fails to give Father even the slightest bit of credit regarding Thomas’ performance during summer school. Mother also appeared visibly irritated during her testimony and became combative during cross-examination. In fact, Mother made excuses and blamed others for Thomas’ academic straggles, while Father outlined his plan for fixing the problem. We believe that Thomas desperately needs the type of strong guidance that Father can provide. Although we agree with Mother and believe that Thomas eventually needs to take control of his own life, we believe it is imperative that we grant Father’s petition before it is too late.

After reviewing the testimony, exhibits, and psychological evaluations, we find it is in Thomas’ best interest that Father be awarded primary physical custody.

Accordingly, we enter the following:

ORDER

And now, April 2, 2004, it is hereby ordered as follows:

(1) Father’s petition for modification of custody is granted as follows:

(2) Shared Legal Custody

Mother and Father shall share legal custody of their child. For purposes of this order, “shared legal custody” shall mean:

(a) All decisions affecting the child’s growth and development, including but not limited to education, choice of school, medical and dental treatment, religious training, athletic pursuits and extracurricular activities shall be considered major decisions, and shall be made by the parties jointly after discussion and consultation with each other with a view toward obtaining and following a harmonious policy in the child’s best interest;

(b) Each party shall keep the other informed of the progress of the child’s education and social adjustment. Each party shall not impair the other party’s right to shared legal or physical custody of the child. Each party shall give support to the other in the role as parent and take into account the consensus of the other for the physical and emotional well-being of the child with the recognition that their lifestyles may be different;

(c) While in the presence of the child, neither party shall make or permit any other person to make any remarks or do anything which would in any way be construed as derogatory or uncomplimentary to the other parent. It shall be the express duty of each parent to uphold the other parent as one whom the child should love and respect;

(d) It shall be the obligation of each parent to make the child available to the other in accordance with the following schedule and to encourage him to participate in the plan hereby set forth;

(e) Each parent shall have the duty to notify the other of any event or activity that could reasonably be expected to be of a significant concern to the other parent or to the child;

(f) The parents shall communicate with one another concerning any parenting issues requiring consultation and agreement regarding a proposed modification of the custody schedule which may, from time to time, become necessary, and shall specifically not use the child as a messenger at any time. Neither party shall discuss with the child any proposed changes to this schedule or any other issue requiring consultation and agreement prior to discussing the matter and agreement with the other parent;

(g) With regard to any emergency decisions which must be made, the parent with whom the child is physically residing at the time shall be permitted to make a decision necessitated by the emergency without consulting the other parent in advance; however, that parent shall inform the other of the emergency and consult with him or her as soon as possible. Day to day decisions of a routine nature will be the responsibility of the parent having physical custody at that time;

(h) Mother and Father shall share complete and full information from any doctor, dentist, teacher or other authority, and each parent may have copies of any reports given to them as a parent. Each parent shall also request any authority to forward copies to both parents at their respective addresses. Such documents include, but are not limited to, medical reports, athletic and school reports, birth certificates, etc. Both parents may and are encouraged to attend conferences and activities with the child. Both parents shall be listed with any school or day care center as parents to be contacted in the event of an emergency and to be notified regarding school events. Mother and Father shall share copies of any school notices in a timely fashion;

(i) Both parents shall attempt to avoid scheduling any activities or appointments for the child which would require his attendance or participation during the time when he is scheduled to be in the physical custody of the other parent without the parent’s prior approval; however, both parents agree to cooperate and be flexible in accommodating the child’s scheduled activities.

(3) Shared Physical Custody

Father shall have primary physical custody under and subject to Mother’s periods of partial custody as follows:

(a) Mother shall enjoy partial physical custody on alternating weekends from Friday at 6 p.m. and ending on Sunday at 5 p.m.

(4) Summer Schedule

Commencing the first weekend following the last day of school or on Friday preceding Father’s Day weekend, whichever comes first, the parties shall alternate physical custody on a weekly basis from Friday at 6 p.m. until Friday at 6 p.m. The alternating periods of custody shall cease on the second Sunday preceding the commencement of school, at which time the school schedule shall take effect.

(5) Holidays

The following holiday schedule supersedes all other partial and vacation custody schedules established in this order:

The parties shall alternate the major holidays. The alternating holiday schedule shall include the holidays of New Year’s Day, Presidents’ Day, Easter, Memorial Day, Fourth of July, Labor Day, and Thanksgiving. Mother shall have partial custody on Mother’s Day and Father shall have partial custody on Father’s Day. Those periods of partial custody for which no times for exchange were heretofore scheduled shall begin at 9 a.m. and end at 8 p.m. These periods of holiday custody shall begin with Mother on Easter 2004.

The parties shall alternate Christmas. Mother shall have physical custody of the child from noon on Christmas Eve until noon on Christmas Day. Father shall have physical custody of the child from noon on Christmas Day until noon on December 26. The above period shall alternate each and every year.

In the event that a holiday to which Mother is entitled shall fall within a day prior or subsequent to weekend period of partial custody to which Mother would also be entitled, that period of weekend partial custody shall be extended to include Mother’s period of holiday partial custody.

(6) Telephone Access

Each parent shall allow the other parent to have private, liberal and reasonable telephone access with the minor child during that parent’s period of partial custody. This shall include the child initiating such contact. Reasonable telephone access shall be construed to be during the child’s normal waking hours, emergencies excepted. If the calling parent leaves a message at the residence of the custodial parent, custodial parent shall require the child to return the telephone call to the noncustodial parent.

(7) Transportation

The parents shall share transportation equally as they can agree. If they are unable to agree, in order to facilitate the exchange of partial custody, it shall be the responsibility of the party who will be obtaining partial custody, or a designee, to pick up the child at the residence of the other party. Appropriate passenger restraint devices shall be utilized by the child while being transported by Mother and Father.

      . Thomas’ testimony was heard in chambers.

      . Thomas currently receives coverage from Father’s health insurance.

      . Father also frequently takes Thomas to skateboarding parks.

      . Thomas has, in fact, shown a tendency to get involved with the wrong crowd. In support of this conclusion, we note that Thomas was recently suspended for five days following an incident involving a fake marijuana cigarette. We fear that Thomas may get involved with real drugs if he does not receive proper guidance.

      . In the report prepared by Dr. John A. Abbruzzese Jr., Ph.D., the doctor indicates that Thomas expressed a preference for living with Mother. (See joint exhibit 4, report of psychological evaluation.) At the hearing, Thomas expressed no such preference.

      . During the majority of Thomas’ schooling, he was a student in the Pleasant Valley school system. If Father is awarded primary physical custody, Thomas will once again be a student at Pleasant Valley.

      . We also find it significant that Thomas attended summer school every day during Father’s period of custody.

      . As with all strong-willed children, Thomas eventually began to lie to Father. For this reason, Father stopped calling Thomas in the mornings.

      . Mother testified that she works nights and does not arrive home until 7 a.m., after the time Thomas leaves for school. Father also testified that he leaves for work very early, 5:30 a.m., and that he would not be home when Thomas ordinarily leaves for school.

      . We note that Father testified in depth regarding a homework hotline.

      . Mother testified that her daughter from a previous marriage went through a similar phase, and that Thomas will eventually grow out of it. However, it is clear from the record that Thomas has been struggling for several years, and that this is more than just a phase. In fact, during cross-examination Mother acknowledged that Thomas has made no progress over the past six quarters.

      . Thomas did not express any such preference during his testimony to this court.

      . In support of this conclusion, we note Father’s testimony that Mother is a good parent, and that she loves Thomas. Father’s only criticisms of Mother as a parent relate to discipline and schooling.


author: WALLACH MILLER, J.,

text:
    Egan v. Stroudsburg School District

      C.P. of Monroe County,
    no. 1363 Civil 2002.

      Salvatore P.J. Vito, for plaintiff.

      Angela Maione Costigan, for defendant.
    March 22, 2004
   WALLACH MILLER, J.,

On March 15, 2000, plaintiff Christy VanLouvender was a passenger in a motor vehicle driven by plaintiff Cheryl Egan that collided with a school bus driven by defendant George C. Bercier, an employee of the Stroudsburg School District. As a result of the collision, plaintiff VanLouvender alleges she sustained injuries to her mouth and contusion and strain of her neck, shoulders and knees.

Plaintiff VanLouvender is a limited tort plaintiff. The defendant moves for summary judgment on noneconomic damages arguing that plaintiff VanLouvender’s injuries fail to meet the “serious injury” threshold required by the Limited Tort Statute. 75 Pa.C.S. § 1705(a).

In 1990, the legislature amended the Motor Vehicle Financial Responsibility Law (MVFRL) to allow insured motorists the opportunity of choosing a “limited tort” option in exchange for a lower rate. Robinson v. Upole, 750 A.2d 339 (Pa. Super. 2000). Under this option, an insured that is injured by another driver “may seek recovery for all medical and out-of-pocket expenses, but not pain and suffering or other non-monetary damages unless the injuries fall within the definition of ‘serious injury’ as set forth in the policy.” 75 Pa.C.S. § 1705(a). The MVFRL defined “serious injury” as “[a] personal injury resulting in death, serious impairment of body function or permanent serious disfigurement.” 75 Pa. C.S. §1702. The issue of defendant’s motion for summary judgment is whether plaintiff YanLouvender had suffered a “serious impairment of body function.”

In Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998), our Supreme Court adopted the following standard for determining whether a “serious impairment of bodily function” has occurred:

“The ‘serious impairment of body function’ threshold contains two inquiries:
“(a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
“(b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally medical testimony will be needed to establish the existence, extent, and permanency of the impairment.... In determining whether the impairment was serious, several factors should be considered: the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.” Washington, 553 Pa. at 448, 719 A.2d at 740, citing DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896, 901 (1986).

The court also held that the traditional summary judgment standard was to be followed by trial courts with respect to the issue presented in the case at bar.

A motion for summary judgment is only proper in those cases where the pleadings, depositions, answers to interrogatories, and admission on file along with the affidavits and all other matters filed on the record, demonstrate that there is no genuine issue of material fact, and that as a result the moving party is entitled to a judgment as a matter of law. Grossman v. Rosen, 424 Pa. Super. 463, 623 A.2d 1 (1993); Frederick v. Action Tire Co., 744 A.2d 762 (Pa. Super. 1999); Weiner v. American Honda Motor Co., 718 A.2d 305 (Pa. Super. 1998). In deciding whether summary judgment is warranted and proper, the court must construe the facts on the record in a light that is most favorable to the non-moving party. The court must also resolve all doubts and reasonable inferences as to the existence of a genuine issue of material fact in favor of the non-moving party. Frederick, supra; Telega v. Security Bureau Inc., 719 A.2d 372 (Pa. Super. 1998); Kaller’s Inc. v. John J. Spencer Roofing Inc., 388 Pa. Super. 361, 565 A.2d 794 (1989). Summary judgment may be granted only in those cases in which the record clearly shows that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Gutteridge v. A.P. Green Services Inc., 804 A.2d 643 (Pa. Super. 2002). Only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. Id.

In our case, plaintiff VanLouvender alleges she lost an upper tooth, a lower left tooth shifted, and bruises to her head and injuries to her knees. After the accident, she was taken to the emergency room of Pocono Medical Center where she was treated and released. She then saw Dr. Gregory J. Menio M.D. After two consultations, Dr. Menio prescribed physical therapy for her left knee which she completed within a couple weeks. At her deposition, she testified that once in a while her left knee bothers her.

Regarding her dental injuries, she was treated by Dr. David J. Pollack D.M.D. Dr. Pollack performed a root canal and placed a crown on the missing tooth.

Plaintiff was 17 years old at the time of the collision. She testified she missed a couple days of school.

The standard of granting summary judgment in limited tort action is whether reasonable minds could differ on whether plaintiff VanLouvender suffered “serious injury.” Washington v. Baxter, supra. The focus of these inquiries is not on the injuries themselves, but the effect of the injury on a body function. Id. Plaintiff VanLouvender fails to present evidence on how the injuries limit her physical activities. We conclude that reasonable minds could not differ as to whether plaintiff VanLouvender suffered a “serious injury” for purposes of the MVFRL, and that there is no question of fact regarding this issue for the jury. Since plaintiff VanLouvender did not sustain a serious injury, she is precluded from recovering for noneconomic damages, including mental anguish and pain and suffering.

Therefore, we enter the following order.

ORDER

And now, March 22, 2004, defendants’, Stroudsburg School District’s and George C. Bercier’s, motion for summary judgment is granted as to plaintiff Christy VanLouvender.