author: NEALON, J.,

text:
    Doble v. Moses Taylor Hospital

      C.P. of Lackawanna County,
    no. 04 CV 2314.

      Judith Doble, pro se.

      John Q. Durkin, for defendant Moses Taylor Hospital.

      Patrick C. Carey, for defendant Peters.

      Michael P Perry and Christopher P Caputo, for defendant Community Medical Center/Health Care Systems.
    March 17, 2006 —
   NEALON, J.,

After the health care defendants in this malpractice suit secured judgments of non pros based upon the plaintiffs’ failure to file a timely certificate of merit in accordance with Pa.R.C.P. 1042.3, the plaintiffs’ counsel filed a petition to open the judgments of non pros and a motion to extend the time for filing a certificate of merit, and thereafter withdrew as counsel for the plaintiffs. The record submitted by the parties reflects that the plaintiffs’ former counsel neglected to file a certificate of merit even though the plaintiffs had obtained a favorable expert report prior to the filing of this lawsuit and had provided that report to their counsel. Since (1) the petition to open was promptly filed, (2) attorney neglect or error may constitute reasonable explanation or legitimate excuse for opening a judgment of non pros under Pa.R.C.P. 3051(b), and (3) plaintiffs’ expert report indicates aprima facie case of malpractice, the petition to open the judgments of non pros will be granted with regard to the plaintiffs’ malpractice claim against the defendant physician and their vicarious liability claims against the defendant hospitals. However, in light of the fact that the plaintiffs’ expert report does not substantiate their corporate liability claims against the defendant hospitals, the petition to open will be denied as to those separate claims.

I. FACTUAL BACKGROUND

On July 23,2004, Judith Doble filed a civil complaint against defendants Dr. William Peters, Moses Taylor Hospital (MTH) and Community Medical Center/Health Care Systems (CMC) alleging malpractice by Dr. Peters in the performance of gastric bypass surgery at MTH and negligent post-operative treatment by Dr. Peters at MTH and CMC. (See dkt. entry no. 10, ¶¶6-32.) In Counts I, II and III of the complaint, Doble alleges professional negligence by Dr. Peters and asserts that MTH and CMC are vicariously liable for Dr. Peters’ actions based upon agency principles. (Id., ¶¶36-40, 42-46, 46 (sic)-48.) Doble also avers independent causes of action against MTH and CMC for corporate negligence. (Id., ¶¶50-54, 56-60.)

On August 23, 2004, Dr. Peters filed preliminary objections to the complaint, and Doble filed a response and brief in opposition to those preliminary objections on September 13, 2004. (Id., dkt. entry nos. 16, 19.) However, Doble did not file a certificate of merit within 60 days of the filing of the complaint as required by Pa.R.C.P. 1042.3(a). On September 22,2004, Dr. Peters and MTH both filed a “Praecipe for entry of judgment of non pros pursuant to Rule 1042.6” and secured judgments of non pros 61 days after the filing of the complaint. (Id., nos. 21-22.) On September 23, 2004, MTH filed another “Praecipe for entry of judgment of non pros pursuant to Rule 1042.6” and the clerk of judicial records entered a second judgment of non pros in favor of MTH at that time. (Id., no. 24.) On that same date, CMC also filed a praecipe for entry of judgment of non pros under Pa.R.C.P. 1042.6 and obtained a judgment of non pros based upon Doble’s failure to file a timely certificate of merit. (Id., no. 25.)

Four days after the last judgment of non pros was entered, Doble’s counsel, Domenick C. DiCicco Jr., Esquire, of Edelstein, Martin & Nelson filed a “Motion to extend time for filing certificate of merit” and a “Petition to open judgment of non pros” on September 27, 2004. (Id., nos. 27-28.) Doble’s counsel failed to file a praecipe for assignment with the court administrator in accordance with Lacka. Cty. R.C.P. 211, and, as a consequence, Doble’s motion and petition were never assigned to a judge for disposition. More than six months later, Attorney DiCicco and the Edelstein law firm filed a petition on March 31,2005, seeking to withdraw as Doble’s counsel. (Id., no. 35.) In the petition to withdraw, Doble’s counsel averred that he was unable to secure a supporting expert opinion and that his surgical expert, Dr. Roberto Bergamaschi, had authored a report which concluded “that the defendants did not breach the standard of care.” (Id., ¶5.)

By order dated May 5, 2005, Judge Trish Corbett granted the petition to withdraw that had been presented by Attorney DiCicco and the Edelstein law firm. (Id., no. 40.) Judge Corbett’s order provided that all proceedings were to be “stayed for a period of 60 days to allow plaintiff/respondent to retain new counsel” and that all further “legal documents and notices” were to be served upon Doble c/o 213 Harding Avenue, Harding, Pennsylvania 18643. (Id., p. 2.) Following the expiration of the 60-day stay, CMC filed a praecipe for assignment to have Doble’s motion to extend and petition to open scheduled for oral argument. (Id, no. 36.) Dr. Peters, MTH and CMC filed legal memoranda in opposition to Doble’s motion and petition, and oral argument was conducted on December 12, 2005. (Id, nos. 41-43.)

At the time of oral argument, Doble appeared pro se and produced the report of a surgical expert, James M. Balliro M.D., F.A.C.S., dated May 3, 2004, which had been provided to her original counsel, Hourigan Kluger & Quinn. Dr. Balliro is board certified by the American Board of Surgery and the American College of Surgeons and served as a clinical preceptor at Florida State University Medical School in 2004 and the University of New England in 2005. (Dkt. entry no. 44, pp. 2-3.) In his report, Dr. Balliro states, inter alia:

“In my considered opinion, the issues in this case center on the prevention and management of marginal ulcer in a post-bariatric surgery patient. Deviations from the accepted standard of care included:
“(1) Failure to warn Ms. Doble not to use Ibuprofen or other ulcerogenic medications. This is particularly disturbing considering that Dr. Peters elects not to treat his patients prophlyactically with acid-suppressing medications.
“(2) Delay in diagnosis and treatment of marginal ulcer.
“Both deviations were direct and proximate causes of all the morbidity suffered by Ms. Doble. I believe I have previously provided literature to substantiate my opinions.” (Id., no. 45.)

During oral argument on Doble’s petition and motion, Doble represented to the court that she had provided Dr. Balliro’s report to Attorney DiCicco and that he was in possession of that report at the time that the certificate of merit deadline expired on September 22, 2004. (Id., no. 46, pp. 2-4,9,19-20.) Doble also stated at oral argument that Attorney DiCicco first advised her of her need to retain another attorney to “file the certificate of merit” on October 5,2004, when he forwarded correspondence to her. (Id, pp. 7-9.)

In his petition to open the judgment of non pros, Attorney DiCicco avers that he “calculated the 60 days to be September 23, 2004, and not September 22, 2004” in reliance upon Pa.R.C.P. 106(a), which generally provides that any period of time referred to in any rule “shall be so computed as to exclude the first and include the last day of such period.” (Id., no. 28, ¶¶4, 8.) According to Doble’s former counsel, “the time period would not have started on July 23, 2004, as computed by the defendants,” as a result of which “the 60-day time period would have expired on September 23,2004, and not on September 22,2004, as computated (sic) by the defendants.” (Id, ¶9.) Former counsel also represents in his petition dated September 27, 2004, that an expert review “is still pending due to the time it takes to obtain [Doble’s] extensive medical records” such that the “defendant cannot claim that they’re (sic) right to know that this was not a frivolous or meritless lawsuit since [Doble’s] expert is still reviewing this matter.” (Id., ¶¶15, 17.) Thus, Doble’s ex-counsel submits that the judgments of non pros should be opened since they were “requested on the 59th day,” “[t]he case was brought to counsel and their expert close to the statue (sic) of limitations,” and “plaintiff forwarded their (sic) motion to extend time on September 24, 2004.” (Id., ¶19.) The same reasoning is employed in Doble’s motion to extend. (Id., no. 27.)

Dr. Peters, MTH and CMC dispute the application of Rule 106(a) proffered by Doble’s former counsel and maintain that the judgments of non pros were filed after the expiration of the applicable 60-day period. (Dkt. entry no. 38, pp. 4-5; dkt. entry no. 42, p. 4; dkt. entry no. 43, pp. 2-3.) MTH and CMC both submit that although Doble’s petition to open was promptly filed, Doble has failed to establish a reasonable excuse for not filing a timely certificate of merit. (Dkt. entry no. 42, p. 5; dkt. entry no. 43, pp. 3-4.) Dr. Peters likewise asserts that “Doble’s petition fails to set forth a reasonable explanation or a legitimate excuse for the inactivity or delay,” and further contends that Doble’s petition to open was “not timely filed.” (Dkt. entry no. 38, p. 6.)

II. DISCUSSION

(A) Standard of Review

It is now well settled that petitions seeking to open judgments of non pros entered pursuant to Pa.R.C.P. 1042.6 are governed by Pa.R.C.P. 3051. See Yee v. Roberts, 878 A.2d 906, 909 (Pa. Super. 2005); Hoover v. Davila, 862 A.2d 591, 595 (Pa. Super. 2004). To open a judgment of non pros under Rule 3051, the petition to open must be timely filed, the petitioner must provide a reasonable explanation or legitimate excuse for the original inactivity or delay, and a meritorious cause of action must exist. See Pa.R.C.P. 305 l(b)(l)-(3). The trial court’s decision to grant or deny a petition to open a judgment of non pros entered pursuant to Pa.R.C.P. 1042.6 will be reversed on appeal only for a manifest abuse of discretion. Varner v. Classic Communities Corporation, 890 A.2d 1068, 1072 (Pa. Super. 2006); Parkway Corporation v. Edelstein, 861 A.2d 264, 266 (Pa. Super. 2004).

(B) Rule 1042.3 Computation by Doble’s Former Counsel

In all medical negligence actions filed after January 27,2003, the plaintiff or the plaintiff’s counsel must sign and file a certificate of merit within 60 days after the filing of the complaint. The certificate of merit must attest that either: “(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards, and that such conduct was a cause in bringing about the harm, or (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.” Pa.R.C.P. 1042.3(a)(l)-(3). Rule 1042.3(d) enables the court, upon good cause shown, to “extend the time for filing a certificate of merit for a period not to exceed 60 days,” provided that the motion to extend is “filed on or before the filing date that the plaintiff seeks to extend.” Pa.R.C.P. 1042.3(d). In the event that the plaintiff fails to file a timely certificate of merit under Rule 1042.3(a) or secure an extension of time pursuant to Rule 1042.3(d), the health care defendant may praecipe the prothonotaiy to enter a judgment of non pros against the plaintiff. See Pa.R.C.P. 1042.6(a).

It is undisputed that Doble’s complaint was filed on July 23, 2004, and that the first judgment of non pros was entered on September 22, 2004. Doble’s former counsel contends that if the computation methodology prescribed by Pa.R.C.P. 106(a) is employed, the judgments of non pros obtained by the defendants were entered prematurely on the 59th day after the filing of the complaint. Such an interpretation of Rule 106(a) is contrary to the plain language of that rule.

Pennsylvania Rule of Civil Procedure 106(a) provides that except in certain instances which are inapplicable in the case sub judice, “[wjhen any period of time is referred to in any rule, such period in all cases ... shall be so computed as to exclude the first and include the last day of such period.” Pa.R.C.P. 106(a). This computation approach has been applied literally by the courts to exclude the first date and include the last date when calculating a limitations period. See e.g., Wolfe v. Stover, 378 Pa. Super. 313, 318-19, 548 A.2d 628, 631 (1988). The method of excluding the first date and including the last date has been utilized in calculating the 60-day period under Rule 1042.3. See Hoover, 862 A.2d at 594 (judgment of non pros properly entered on April 14, 2003, where complaint was filed on February 12, 2003).

In the case at hand, if the date of the filing of the complaint (July 23, 2004) is excluded and the date that the first judgments of non pros were entered (September 22, 2004) is included, the 61 st day after the filing of the complaint is September 22, 2004. The contention that September 22, 2004 represents the 59th day after July 23, 2004 is wholly unsupported by Rule 106 or any other rule of procedure. Therefore, the judgments of non pros secured by Dr. Peters, MTH and CMC were entered on the 61st day after the filing of the complaint and any argument to the contrary is devoid of merit.

(C) Doble’s Petition To Open

A petition to open a judgment of non pros is addressed to the equitable powers of the court which may open the judgment “by way of grace and not of right.” Almes v. Burket, 881 A.2d 861, 863-64 (Pa. Super. 2005). To open a judgment that was entered under Rule 1042.6, the petitioner must demonstrate that: (1) the petition to open was promptly filed; (2) there is a reasonable explanation or legitimate excuse for the failure to timely file the certificate of merit; and (3) there is a meritorious cause of action. Yee, 878 A.2d at 909 n.2; Hoover, 862 A.2d at 595. Since Doble filed the petition to open within less than one week of the entry of the judgments of non pros, and Doble has produced an expert report indicating the existence of a prima facie case of malpractice, she has satisfied the first and third prongs of the Rule 3051(b) test. See Aimes, 881 A.2d at 864 (holding that plaintiffs met the first and third prong of the test in that they “filed the petition for relief within a week of the entry of the judgment and the certificate of merit and supporting statement suggest that a prima facie case of professional negligence exists.”); Harris v. Neuburger, 877 A.2d 1275, 1278 (Pa. Super. 2005) (same). Consequently, the dis-positive issue to be addressed is whether Doble has reasonably explained the initial lack of compliance with Rule 1042.3(a).

Recent decisions of the Superior Court of Pennsylvania have recognized equitable exceptions to Rule 1042.3, and, in the process, have found reasonable explanations or excuses to exist where the failure to file a timely certificate of merit is attributable to attorney neglect or error. In Harris, supra, the plaintiffs’ attorneys provided defense counsel with copies of supporting expert reports, but neglected to file the required certificate of merit under Rule 1042.3(a). After the defendants obtained judgments of non pros pursuant to Rule 1042.6, the plaintiffs petitioned to open the judgments and the trial court granted the plaintiffs’ petition to open. Harris, 877 A.2d at 1276-77. On appeal, the Superior Court noted that “[cjlearly, the underlying purpose of [Rule 1042.3] is to prevent the filing of baseless medical professional liability claims.” Id. at 1278. In affirming the lower court, the Harris court concluded that that goal had been fulfilled and held:

“Given the factual circumstances of this matter and our standard of review, the grant of appellee’s motion to open the judgments of non pros was proper. The lower court’s decision is additionally supported by both equitable principles and Pa.R.C.P. 126 which provides that ‘the [Rules of Civil Procedure] shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable . . . the court at every stage of any proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.’ While Rule 1042.3 provides for a generous time period before the required filing of the certificate of merit, and while the rule allows for unlimited time extensions, in the context of this case, the lower court ruled, and we agree, that it was not wholly unreasonable for appellee to have concluded that his actions represented substantial compliance with the certificate of merit rule. As the lower court noted, appellee ‘provided [appellants], prior to the required filing of the certificate of merit, not just an attorney’s affidavit, but the reports, themselves.’ Lower court opinion, at 4. We agree that since appellee has satisfied the purpose of Rule 1042.3, he should not be barred from his day in court because he mistakenly, but reasonably, believed he had met his obligation. The lower court did not abuse its discretion, and the court properly granted appellee’s motion to open the judgments of non-pros.” Id.

Similarly, m Almes, supra, the plaintiff’s counsel failed to file a certificate of merit in compliance with Rule 1042.3 due to his involvement with a family emergency. Specifically, after plaintiff’s counsel had consulted with an expert who had mailed a favorable report to him, his mother-in-law died and was later buried on the date that the certificate of merit was due. Upon returning to his office several days later, plaintiff’s counsel discovered in his mail both the report from his expert and a copy of the defendant’s praecipe to enter a judgment of non pros under Rule 1042.6. Plaintiff’s counsel filed a petition to open five days later, but the trial court denied the petition based upon Helfrick v. UPMC Shadyside Hospital, 65 D.&C.4th 420 (Allegheny Cty. 2003) and Kerry v. Butler Memorial Hospital, 66 D.&C.4th 569 (Butler Cty. 2004). See Almes, 881 A.2d at 863.

On appeal, the Superior Court cited Harris with approval and characterized that holding as excusing “a failure to file a certificate of merit within the time allowed by Rule 1042.3 due to attorney misapprehension.” Id. at 865. Based upon the circumstances presented in Aimes, the appellate court concluded that the trial court abused its discretion in denying the petition to open and stated:

“[w]e are not prepared to assert that an attorney who forgets that the certificate was due or who fails to take the above mentioned actions when faced with a family crisis like the one presented here is so derelict in his obligations that the oversight should not be excused.
“The law requires only that the failure be accompanied by a reasonable explanation or a legitimate excuse. Keeping in mind that the opening of a judgment is an appeal to the equitable powers of the court, we do not believe our law is so cold-hearted as to demand vigilance of an attorney who experiences a death in the family or is so cold as to be unwilling to excuse failure under these circumstances.” Id. at 866.

Unlike Harris and Almes where counsel’s excusable oversight was found to constitute legitimate excuse under Pa.R.C.P. 3051(b)(2), Doble maintains that her former counsel inexplicably failed to file a timely certificate of merit despite the fact that he possessed a favorable expert report by Dr. Balliro. Doble asserted at the time of oral argument that since her former counsel had a supporting expert report “that he could have used, but he chose not to ...,” (dkt. entry no. 46, p. 3), his failure to file the required certificate of merit was inexcusable. (Id., pp. 3-4,19-20.) Our Supreme Court has noted that “[a]ny person entrusting a matter to an attorney in this Commonwealth should be able to believe that the matter will be competently and diligently handled.” Jung v. St. Paul’s Parish, 522 Pa. 167, 175-76, 560 A.2d 1356, 1360 (1989) (quoting PennDOT v. Nemeth, 497 Pa. 580, 584, 442 A.2d 689, 691 (1982)). For that reason, attorney neglect or mistake has been regarded as a reasonable explanation or legitimate excuse for opening a judgment of non pros pursuant to Pa.R.C.P. 3051(b). See Esslinger v. Sun Refining and Marketing Company, 379 Pa. Super. 69, 74-75, 549 A.2d 600, 603 (1988) (stating that “pertinent case law reveals that the power to open judgment should be exercised when the default is the result of oversight or mistake by counsel.”); Buxbaum v. Peguero, 335 Pa. Super. 289, 294-95, 484 A.2d 137, 140-41 (1984) (trial court properly opened judgment of non pros based upon attorney negligence in failing to timely file complaint).

According to the record that has been submitted by the parties, Doble provided Dr. Balliro’s report to her former counsel well in advance of the certificate of merit deadline and was not advised of the need to retain new counsel to “file the certificate of merit” until after the judgments of non pros had already been entered. A petition to open a judgment of non pros is an appeal to the equitable powers of the court, and under the totality of the circumstances present in this case, it would appear harsh and unfair to deny Doble the opportunity to proceed forward with her malpractice claim that is supported by an appropriate expert opinion. “The goal of the certificate of merit is to weed out clearly non-meritorious lawsuits early in the litigation process,” Warren v. Folk, 886 A.2d 305, 307 (Pa. Super. 2005), and the courts have been more inclined to grant petitions to open judgments of non pros where the purpose of Rule 1042.3 has been satisfied. See e.g., Almes, supra; Harris, supra. No discovery has been conducted in this case and the pleadings have not yet been closed. Since this litigation is still in its infancy and Doble has substantiated her negligence claims with an expert report, the goal of Rule 1042.3 would not be frustrated by opening the judgments of non pros which arguably are the product of attorney negligence.

Doble’s complaint alleges professional negligence by Dr. Peters and seeks to impose vicarious liability upon MTH and CMC for Dr. Peters’ purported malpractice. Dr. Balliro’s report is sufficient to sustain Doble’s claims of negligence by Dr. Peters, but it does not provide any support for Doble’s separate allegations of corporate liability on the part of MTH and CMC. Doble’s corporate liability claims against MTH and CMC must be supported by an independent certificate of merit under Rule 1042.3(a). See Yee, 878 A.2d at 913-14; White, 69 D.&C.4th at 362-63. Thus, Doble’s petition to open will be granted with respect to her malpractice claim against Dr. Peters (Count I) and her vicarious liability claims against MTH and CMC (Counts II and III) and Doble will be directed to file certificates of merit pursuant to Rule 1042.3(a)(1) and (2) in support of those claims. However, since Doble’s corporate negligence claims are not supported by an independent certificate of merit, Doble’s petition will be denied as to Counts IV and V of the complaint asserting causes of action against MTH and CMC for corporate liability. An appropriate order follows.

ORDER

And now, March 17, 2006, upon consideration of “plaintiff’s petition to open judgment of non pros,” “plaintiff’s motion to extend time for filing certificate of merit,” the memoranda of law submitted by the parties and the oral argument of defense counsel and plaintiff, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) “Plaintiff’s petition to open judgment ofnonpros” is granted in part and denied in part;

(2) “Plaintiff’s petition to open judgment of non pros” is granted with regard to Counts I, II and III of the complaint asserting professional negligence by the defendant, Dr. William Peters, and vicarious liability on the part of the defendants, Moses Taylor Hospital and Community Medical Center/Health Care Systems, for the actions of Dr. Peters;

(3) Within 30 days of the date of this order, the plaintiffs shall file a certificate of merit pursuant to Pa.R.C.P. 1042.3(a)(1) in support of their malpractice claims against Dr. William Peters and a certificate of merit under Pa.R.C.P. 1042.3(a)(2) with respect to the plaintiffs’ vicarious liability claims against the defendants, Moses Taylor Hospital and Community Medical Center/Health Care Systems;

(4) “Plaintiff’s petition to open judgment of non pros” is denied with regard to Counts IV and V of the complaint asserting causes of action against the defendants, Moses Taylor Hospital and Community Medical Center/ Health Care Systems, for corporate negligence; and

(5) In light of the foregoing, “plaintiff’s motion to extend time for filing certificate of merit” is dismissed as moot.

      . Although the order granting the petition to withdraw was executed on May 5, 2005, it was not filed of record until August 12, 2005. (Id., no. 40.)

      . For purposes of the instant motion and petition only, we will assume that Dr. Balliro satisfies the expert qualification criteria set forth in section 512(c) or (e) of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. §1303.512(c), (e), and Pa.R.C.R 1042.3(a)(1).

      . Although the entry of a judgment of non pros does not exist in federal motion practice, see Abdulhay v. Bethlehem Medical Arts, 2005 WL 2416012, *10 n.13 (E.D. Pa. 2005), several federal courts have concluded that Pennsylvania’s certifícate of merit rule constitutes substantive state law and must be applied by federal courts sitting in diversity. See Hartman v. Low Security Correctional Institution Allenwood, 2005 WL 1259950, **3-4 (M.D. Pa. 2005); Scaramuzza v. Sciolla, 345 F. Supp.2d 508, 510 (E.D. Pa. 2004); Velazquez v. UPMC Bedford Memorial Hospital, 338 F. Supp.2d 609, 613 (W.D. Pa. 2004). One of those courts has reasoned that the failure to file a timely certificate of merit does not warrant dismissal of the complaint unless the defendant can establish prejudice due to the delay. See Scaramuzza, supra (“Although the court believes the 60-day time limit is binding on a plaintiff, the defendant in this case has not shown prejudice from the delay, and the court will not dismiss the complaint.”). Other federal courts have declined to adopt such a prejudice standard. See Abdulhay, supra at * 11 (“while we agree with plaintiffs that defendants have not demonstrated prejudice, we agree with defendants that they do not have to [under Pa.R.C.P. 1042.6].”); Hartman, supra at *4 (refusing to adopt prejudice standard articulated in Scaramuzza and observing that “[t]he only reported Pennsylvania court decisions of which we are aware have held that such prejudice is immaterial when considering whether a plaintiff’s claims should be dismissed for the failure to comply with Rule 1042.3.”). The Superior Court of Pennsylvania has not required a showing of prejudice by the defendant in order for the court to deny a petition to open a judgment of non pros. See Parkway Corp., 861 A.2d at 269.

      . The Supreme Court of Pennsylvania has granted allowance of appeal in a certifícate of merit case to consider “the question of whether Rule 1042.3 should be deemed subject to equitable exceptions.” Womer v. Hilliker, 582 Pa. 92, 93, 869 A.2d 482 (2005).

      . Doble avers in the complaint that her surgery was performed on November 20, 2001, and her post-operative complications and treatment occurred in late June 2002 and early July 2002. (Diet, entry 10, ¶¶9, 17-33.) As a result, the two-year statute of limitations on Doble’s malpractice claims have now expired and Doble would not be entitled to refile her malpractice claims if the petition to open were to be denied. Compare White v. Behlke, 69 D.&C.4th 353, 371-72 (Lacka. Cty. 2004) (since judgment of non pros has no res judicata effect, plaintiff may file a second malpractice action following the entry of a judgment of non pros under Rule 1042.6 provided that the applicable statute of limitations has not expired); Helfrick, 65 D.&C.4th at 427-28 (same).


source: Caselaw Access Project

author: JAMES, J,

license: Public Domain

text:
    Miller v. Geisinger Medical Center

      C.P. of Montour County,
    no. 398 of 2003.

      Andrew E. DiPiero Jr., for plaintiffs.

      Benjamin Post and Tara Reid, for defendants.
    March 28, 2006
   JAMES, J,

This is a medical malpractice case. On March 15, 1999, decedent was admitted to the mental health ward of defendant Geisinger Medical Center (GMC) for mental health treatment. He died in the hospital on March 18, 1999.

Extensive discovery has been completed, and the matter is scheduled for trial. Defendants have filed a “motion in limine to preclude any evidence against them at the time of trial as plaintiffs’ claims are barred by the Pennsylvania Mental Health Procedures Act and summary judgment is otherwise appropriate at this time.” They assert that the evidence does not establish a prima facie case for “gross negligence” by defendants, thus providing them immunity under the Mental Health Procedures Act (50 P.S. §7114).

In summary, decedent Mark Miller was admitted to GMC on March 15, 1999, for inpatient mental health treatment. He was primarily treated with medication. He died on March 18,1999, at the hospital. Plaintiffs allege that his death was the result of overmedication. In what is in essence a summary judgment motion, defendants assert immunity from liability. The issue is whether, under the undisputed facts of this case, as a matter of law, defendants’ acts or omissions constitute gross negligence. If so, they are not immune from liability. If not, they are immune from liability.

The Mental Health Procedures Act states:

“It is the policy of the Commonwealth of Pennsylvania to seek to assure the availability of adequate treatment to persons who are mentally ill, and it is the purpose of this act to establish procedures whereby this policy can be effected. The provisions of this act shall be interpreted in conformity with the principles of due process to make voluntary and involuntary treatment available where the need is great and its absence could result in serious harm to the mentally ill person or to others. Treatment on a voluntary basis shall be preferred to involuntary treatment; and in every case, the least restrictions consistent with adequate treatment shall be employed. Persons who are mentally retarded, senile, alcoholic, or drug dependent shall receive mental health treatment only if they are also diagnosed as mentally ill, but these conditions of themselves shall not be deemed to constitute mental illness.” 50 P.S. §7102 (Statement of Policy).

Furthermore:

“Adequate treatment means a course of treatment designed and administered to alleviate a person’s pain and distress and to maximize the probability of his recovery from mental illness. It shall be provided to all persons in treatment who are subject to this act. It may include inpatient treatment, partial hospitalization, or outpatient treatment. Adequate inpatient treatment shall include such accommodations, diet, heat, light, sanitary facilities, clothing, recreation, education and medical care as are necessary to maintain decent, safe and healthful living conditions. Treatment shall include diagnosis, evaluation, therapy, or rehabilitation needed to alleviate pain and distress and to facilitate the recovery of a person from mental illness and shall also include care and other services that supplement treatment and aid or promote such recovery.” 50 P.S. §7104 (Provision for Treatment).

In the defining case of Allen v. Montgomery Hospital, 548 Pa. 299, 307, 696 A.2d 1175, 1179 (1997), the Pennsylvania Supreme Court decided that “treatment” included treatment for other ailments while the patient was treated for mental illness. The court stated:

“Therefore, applying the rules of statutory construction to the immunity provision of section 114 of the MHPA, we conclude that the General Assembly decided to ameliorate certain risks by granting limited immunity to doctors and hospitals who have undertaken the treatment ofthe mentally ill, including treatmentfor physical ailments pursuant to a contract with a mental health facility to provide such treatment. Policy reasons also support this interpretation of the immunity provision in section 114 of the MHPA. If the provision were interpreted narrowly such as urged by appellees so that it only applied to treatment specifically directed at a mental illness, it could reduce or eliminate the willingness of doctors or hospitals to provide needed medical care to a mentally ill patient who is referred by a mental hospital for medical treatment. Even if doctors or hospitals still provided treatment for physical ailments in such a situation, it could lead such providers of medical care to minimize their risks by placing the mentally ill patients in a more restrictive environment than is necessary or adopting other precautionary measures which would increase the costs of the medical care provided to the mentally ill.” (emphasis provided)

A subsequent Pennsylvania Superior Court case added:

“The immunity provision of the MHPA provides in pertinent part as follows:
“Section 7114. Immunity from civil and criminal liability
“(a) In the absence of willful misconduct or gross negligence, a county administrator, a director of a facility, a physician, a peace officer or any other authorized person who participates in a decision that a person be examined or treated under this act,... shall not be civilly or criminally liable for such decision or for any of its consequences. 50 P.S. §7114(a). Under the MHPA, a ‘facility’ is ‘any mental health establishment, hospital, clinic, institution, center, day care center, base service unit, community mental health center, or part thereof, that provides for the diagnosis, treatment, care or rehabilitation of mentally ill persons, whether as outpatients or inpatients.’ 50 P.S. §7103. ‘Treatment’ is defined as ‘diagnosis, evaluation, therapy, or rehabilitation needed to alleviate pain and distress and to facilitate the recovery of a person from mental illness and shall also include care and other services that supplement treatment and aid or promote such recovery.’ 50 P.S. §7104. Thus, we must determine if Crozer was a ‘facility’ providing treatment to defendant for, if it was, Crozer is immune from suit in the absence of ‘gross negligence.’
“Our Supreme Court has determined that the immunity provided by the MHPA extends to institutions, as well as natural persons, that provide care to mentally ill patients. Farago v. Sacred Heart General Hospital, 522 Pa. 410, 562 A.2d 300, 303 (1989). Additionally, our Supreme Court has interpreted section 7114(a) to include not only treatment decisions, but also, ‘ “care and other services that supplement treatment” in order to promote the recovery of the patient from mental illness.’ Allen v. Montgomery Hospital, 548 Pa. 299, 696 A.2d 1175, 1179 (1997).
“As a hospital that provides inpatient psychiatric care, Crozer is most certainly an institution to which the provisions of the MHPA apply. See Farago, 562 A.2d at 303. Decedent was involuntarily committed to the inpatient psychiatric care of Crozer, and its staff monitored decedent as part of her medical care. In Allen, our Supreme Court interpreted the MHPA to apply to the daily care and other services provided to a patient as part of the patient’s overall psychiatric treatment. See Allen, 696 A.2d at 1179. Therefore, we conclude that the MHPA applies to Crozer and consequently, that the trial court did not err by applying its immunity provisions when it granted summary judgment.” Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 524-25 (Pa. Super. 2003).

Thus, it has been determined by the Pennsylvania courts that the immunity provision of the Mental Health Procedures Act applies to any treatment a patient is receiving in a medical/mental health facility incidental to his or her mental health treatment. In case at bar, there is no question that the complained of treatment was incidental to decedent’s mental health treatment. Therefore, the controlling issue is whether the defendants’ actions present a question for a jury or whether gross negligence has not been established sufficiently to present to a jury.

The Superior Court has recently reiterated the definition of “gross negligence”:

“Clearly in this case patient is not attempting to prove willful misconduct; therefore, her burden would be to present sufficient facts to the jury from which it could making [sic] a finding of gross negligence.
“Our Supreme Court adopted this court’s definition of gross negligence in Albright v. Abington Memorial Hospital, 548 Pa. 268, 696 A.2d 1159 (1997):
“ ‘It appears that the legislature intended to require that liability be premised on facts indicating more egregiously deviant conduct than ordinary carelessness, inadvertence, laxity, or indifference. We hold that the legislature intended the term gross negligence to mean a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.’ Id. at 278, 696 A.2d at 1164, quoting Bloom v. DuBois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671, 679 (1991).” Walsh v. Borczon, 881 A.2d 1, 7 (Pa. Super. 2005).

In light of the definition of gross negligence, we must decide when a case involving gross negligence is appropriate for jury determination and when is it appropriate for court determination. The Pennsylvania courts have clearly addressed this issue and established the standard for when a court should decide the issue as a matter of law:

“We recognize that the limited immunity provided by section 7114 would mean little if the persons or entities covered by that provision were required to undergo trial in every case and leave it to a jury to determine if the complained of misdeeds (if there were any) rose to the level of gross negligence.
“On the very issue of whether the jury has the sole right to determine gross negligence, Justice Cappy declared:
“While it is generally true that the issue of whether a given set of facts satisfies the definition of gross negligence is a question of fact to be determined by a jury, a court may take the issue from a jury, and decide the issue as a matter of law, if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence. Id. (Albright) at 1164-65, citing Willett v. Evergreen Homes Inc., 407 Pa. Super. 141, 595 A.2d 164 (1991), alloc. denied, 529 Pa. 623, 600 A.2d 539 (1991).” Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 525-26 (Pa. Super. 2003).

Thus, based on the undisputed facts, our determination is whether the conduct of the defendants falls short of gross negligence, whether the case is entirely free from doubt, and whether no reasonable jury could find gross negligence. Plaintiffs argue that even if the acts or omissions of each individual defendant amount to negligence, not gross negligence, their combined negligence amounts to gross negligence. Plaintiffs argue that the resulting gross negligence of the “group” of individuals renders the individual defendants grossly negligent, even though their individual acts constituted ordinary negligence. Plaintiffs cite no authority for this proposition, and the court knows of no legal theory which would subject an individual defendant to liability for gross negligence allegedly created by the independent actions of several people, with the exception of vicarious liability. Thus, this court will determine whether a prima facie case for gross negligence has been established for each defendant.

These are the facts of this case as alleged by plaintiffs and evidenced through numerous depositions, medical records and expert reports. Decedent, Mark Miller, age 27, was admitted to the inpatient psychiatric unit of GMC on March 15,1999, for further assessment and treatment of major depression. He had been expressing suicidal ideations during outpatient treatment. He also had a history of chronic pain from an eight-year-old vehicle accident and had heart problems treated with a pacemaker. On admission he was kept on his outpatient medications. The next day (March 16,1999), per admitting physician defendant Doctor Paolucci, the medications were changed, including adding methadone and Librium. On March 17, 1999, per physician assistant Albright (who was supervised by defendant Doctor Baxter), the dose of methadone was increased. In accordance with that increase, the physician assistant ordered an increase in the frequency of vital sign monitoring from twice a day to “please check vital signs at shift change.” Friends and relatives found decedent to be sleepy during the day of March 17. The records indicate that he was somnolent at 2 p.m. on March 17.

At midnight at the start of March 18, 1999, he was awake with other patients. His vital signs were taken at midnight, just before he went to bed and the vital signs were found to be good and steady. At 1 a.m. on March 18, he was sleeping in his bed. Defendant Nurse Wolfe and/or other nurses saw him asleep hourly thereafter through the night. At 6 a.m. defendant Nurse Lauffer checked on decedent and found him to be difficult to arouse and sedated. Defendant Nurse Lauffer checked decedent’s vital signs which continued to be good, consistent, and in accord with the vital signs of the last day and one-half. However, immediately, defendant Nurse Lauffer called defendant Doctor Hoffer (a psychiatrist who dealt with outpatient care but who was on call at home) to inquire as to whether decedent’s medication could be withheld in light of his condition. Defendant Nurse Lauffer told defendant Doctor Hoffer that decedent “appeared to be sedated, that he was arousable, that his vital signs — I gave him his vital signs, specifically as to what they were. And I informed him that they were consistent with what had been taken at midnight.” Defendant Doctor Hoffer gave permission to withhold the medication and directed that the patient be evaluated later at the beginning of the day shift, or in the morning. Defendant Nurse Lauffer did nothing else for decedent and finished other work. He returned to decedent’s room at 6:55 p.m. and found the decedent in cardiopulmonary arrest. Decedent was pronounced dead at 7:35 a.m.

' The question is whether any of the parties were grossly negligent in causing decedent’s death. Plaintiff has several expert reports addressing the issue of negligence and assigning responsibility. However, it is troublesome that most of these allegations of negligence or gross negligence lump defendants together without explaining what each defendant did or did not do that amounted to gross negligence. Although Dr. Eric Fine opines that decedent would have survived had he been treated within the accepted standard of care, he assigns blame generally by saying there was a gross deviation from the accepted standard of care “by his physicians and nursing staff at Geisinger Medical Center.” Likewise, Dr. Cyril Wecht opines that “Mr. Mark Miller died as a direct result of the toxic effects of the combination of several drugs that depressed his central nervous system. More frequent check-ups after midnight would have detected increasing respiratory depression and thereby would have led to appropriate and timely intervention, which would have prevented his death.” There is no specific assignment of negligence to any individual. In addition, without assigning individual liability to any one person, Dr. Harold Palevsky states that “[t]he failure of the staff at Geisinger Medical Center and the physicians involved in Mr. Miller’s care to recognize the potential for respiratory compromise from the medications he was on, the failure to administer any antagonists for either narcotics (methadone) or benzodiazepines (Librium) was a deviation from accepted standards of practice.”

Three other plaintiff experts are more specific. Nursing expert Jeanne Geiger-Brown, Ph.D., APRN, BC, states that generally “the professional accountability for monitoring his condition and acting on those observations was not clear.” But this is not a corporate liability case dealing with faulty procedures and protocols. This is a case against individual defendants and against GMC based on vicarious liability. However, Dr. Geiger-Brown does assign individual liability to defendant Nurse Lauffer.

Similarly, Richard A. Pessagno, MSN, APRN, BS, generally criticizes the nursing care for decedent from midnight until 6:55 a.m. on March 18. He says that the “lack of monitoring of Mr. Miller’s condition” was below the standard of care. Specifically, he states that Nurse Lauffer acted below the standard of care when he left decedent alone and unattended after 6 a.m. He also opines that there was no “code cart actually on the psychiatric unit when Mr. Miller needed to be resuscitated” and that this was below the standard of care.

Dr. Fayer assigns general liability and specific liability. Generally, he says that “Drs. Paolucci, Hoffer and Baxter all deviated from care consistent with that of a trained psychiatrist, internist and resident respectively and did not employ prudence in meeting standards of care.” Specifically, he makes several direct criticisms of Dr. Paolucci. He states that Dr. Paolucci failed to “conduct a proper and appropriate medical work-up for his medical condition,” i.e., a cardiac work-up. Second, he states that Dr. Paolucci “failed to prescribe, manage and administer appropriate medications for the treatment of his major depressive disorder and detoxification from opoid analgesics (Vicodin). Dr. Paolucci did not appreciate the drug-drug interactions of the various medications.” Third, he says that “Dr. Paolucci did not communicate concerns regarding the clinical status and interaction of various medications with Dr. Baxter, who was called to consult in regard to detoxification.” Finally, he says that “[tjhere was a failure on the part of Dr. Paolucci as the attending of Mark Miller and the other physicians who were involved in his treatment to follow the procedures for medical situations on the unit set up by the Geisinger Medical Center for Inpatient Psychiatry Procedure no. 18. I note that for medical problems during off hours which are judged to be serious, a nurse will remain with the patient, observe and care for the patient, and document findings in the medical unit. This was not done and the serious state with obvious somnolence and possible respiratoiy depression was not addressed on 3/18/99 after Mr. Miller was seen at 6 a.m.”

With regard to Dr. Hoffer, Dr. Fayer states that when Nurse Lauffer called Dr. Hoffer, “[tjhere was no discussion about the other medications that Mr. Miller was on and the only thing done was to hold the Librium. Dr. Hoffer did not at that time give an order for Mr. Miller to be examined by a physician on call. Nor was there any change in his vital signs. He did not instruct Nurse Lauffer to remain with the patient and to monitor what clearly was a very dangerous situation.”

The only reference in Dr. Fayer’s report about Dr. Baxter’s liability (except general statements) is that “on 3/17 Dr. Baxter did not see Mr. Miller or communicate to Dr. Paolucci or to David Albright, a physician’s assistant who was apparently assigned to evaluate and treat Mr. Miller under the supervision of Dr. Baxter. On 3/17 at 2 p.m. Mr. Miller was noted to be somnolent. Despite this, his methadone dosage was increased from 20 mg. b.i.d. to 30 mg. b.i.d. This was never communicated to Dr. Baxter or Dr. Paolucci. This failure to communicate Mr. Miller’s clinical condition and increasing the dose of methadone knowing he was already on other medications which caused respiratory depression was clearly a gross deviation from accepted psychiatric medical practice.” Query: Who committed the negligence?

In light of the expert reports and the allegation of gross negligence on the part of each defendant, it is crucial to examine the facts which plaintiffs allege establish a prima facie case for gross negligence. First, in regard to defendant Nurse Wolfe, she is alleged to have not monitored the decedent closely enough during the hours of midnight to 6 a.m. Experts Geiger-Brown and Pessagno do not address defendant Nurse Wolfe specifically, but generally state that the monitoring of decedent from midnight to 6 a.m. was below standards. There are no facts or any expert opinions which establish any negligence, gross or ordinary, on the part of defendant Nurse Wolfe. There is no cause of action against Nurse Wolfe.

Second, in regard to Doctor Baxter, the only facts alleged upon which liability is founded are that Doctor Baxter consulted on this matter and prescribed a certain regimen of medications for decedent which were increased by his physical assistant on March 17,1999. The only contact between decedent and Doctor Baxter was on March 16, 1999. In addition, plaintiffs’ experts do not link any specific acts or admissions with any opinions which constitute flagrant acts or omissions or with acts or omissions which amount to a form of negligence substantially more that ordinary carelessness, inadvertence, laxity, or indifference. Doctor Baxter’s alleged actions do not constitute a prima facie case for gross negligence.

Third, in regard to Doctor Hoffer, the only facts alleged upon which liability is founded are that he was called at home by Nurse Lauffer who asked him whether decedent’s medications could be withheld that morning. Doctor Hoffer received similar calls quite often about seemingly sedated patients. In this case he was told by Nurse Lauffer that Mark Miller’s vital signs were good and consistent and that Mark Miller was arousable and could open his eyes. Plaintiffs’ only expert who speaks directly to Dr. Hoffer’s alleged negligence is Dr. Fayer. Dr. Fayer says that “Dr. Hoffer did not at that time give an order for Mr. Miller to be examined by a physician on call. Nor was there any change in vital signs. He did not instruct Nurse Lauffer to remain with the patient and to monitor what clearly was a very dangerous situation.” Even if these allegations, under the circumstances, amounted to ordinary negligence, Doctor Hoffer’s alleged actions were not flagrant and do not amount to a form of negligence substantially more than ordinary carelessness, inadvertence, laxity, or indifference. These actions do not amount to gross negligence.

Fourth, in regard to Doctor Paolucci, the only facts alleged upon which liability is founded are that he was the admitting physician and, thus, the attending physician to Mark Miller. Upon admission, he examined Mark Miller. He had no contact with him after that time. Once again, plaintiffs’ only expert who speaks directly to Dr. Paolucci’s alleged negligence is Dr. Fayer. Dr. Fayer says that Doctor Paolucci failed “to conduct a proper and appropriate medical work-up for his medical difficulties.” Dr. Fayer referred to his heart problems. However, plaintiffs’ pathologist, Dr. Wecht opines that “Mark Miller died as a result of the toxic effects of the combination of several drugs that depressed the central nervous system.” There is no connection with this allegation of negligence and Mark Miller’s death.

Dr. Fayer also states that Dr. Paolucci failed to “prescribe, manage and administer appropriate medications for the treatment of his major depressive disorder and detoxification from opoid analgesics (Vicodin). Dr. Paolucci did not appreciate the drug-drug interactions of the various medications Mr. Miller was placed on while a patient in the hospital. This included Librium, methadone, Efflexor, Benadryl, Depakote, and Trazodone. All of these medications together have an addictive effect in relation to side effects including sedation and respiratory depression.” In light of the alleged acts or omissions of Dr. Paolucci and the expert opinion that these acts or omissions amounted to negligence, there is nothing in the record or expert opinion which would lead a reasonable jury to conclude that these alleged acts of negligence rise to the level of gross negligence. There is nothing to indicate that Dr. Paolucci’s alleged acts or omissions were flagrant or substantially greater than ordinary negligence.

Dr. Fayer also states that:

“Dr. Paolucci did not communicate concerns regarding the clinical status and interaction of various medications with Dr. Baxter who was called in to consult in regard to detoxification. I should also note that Mr. Miller was not seen by Dr. Baxter on a daily basis while in the hospital. In fact, on 3/17 Dr. Baxter did not see Mr. Miller or communicate to Dr. Paolucci or to David Albright, a physician’s assistant who was apparently assigned to evaluate and treat Mr. Miller under the supervision of Dr. Baxter. On 3/17 at 2 p.m. Mr. Miller was noted to be somnolent. Despite this his methadone dosage was increased from 20 mg. b.i.d. to 30 mg. b.i.d. This was never directly communicated to Dr. Baxter or Dr. Paolucci. This failure to communicate Mr. Miller’s clinical condition and increasing the dose of methadone knowing he was already on other medications which caused respiratoiy depression was clearly a gross deviation from accepted psychiatric medical practice.”
“This failure to communicate” seems to lump unspecified defendants together and to add their respective allegations of failure to communicate together to establish gross negligence. Certainly, there is nothing in the record to indicate that Dr. Paolucci’s alleged acts or omissions were flagrant or substantially greater than ordinary negligence. “An expert’s opinion must be supported by references to facts, testimony or empirical data and must delineate how the opinion, based on the record, gives rise to a genuine issue of material fact. Without such support, there can be no prima facie case of gross negligence sufficient to overcome a summary judgment motion. Kenner v. Kappa Alpha Psi Fraternity Inc., 808 A.2d 178 (Pa. Super. 2002) (affirming entry of summary judgment, where an expert’s opinion contained within a report, failed to point to specific facts, testimony or empirical data for support) (citing Checchio v. Frankford Hospital, 717 A.2d 1058, 1062 (Pa. Super. 1998)) (affirmed summary judgment when expert opinion was based entirely on subjective assessments).” Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 528-29 (Pa. Super. 2003). The facts referred to by the expert regarding Dr. Paolucci simply do not give rise to a prima facie case for gross negligence. Simply using the magic words “gross negligence” in the expert report does not give rise to a prima facie case for gross negligence without sufficient supporting facts. Moreover, Dr. Fayer’s allegation of gross negligence appears to arise from the increase in the methadone dosage, which was not prescribed by Dr. Paolucci.

Finally, Dr. Fayer says that:

“There was a failure on the part of Dr. Paolucci as the attending of Mark Miller and the other physicians who were involved in his treatment to follow the procedures for medical situations on the unit set up by the Geisinger Medical Center for Inpatient Psychiatry Procedure no. 18. I note that for medical problems during off hours which are judged to be serious, a nurse will remain with the patient, observe and care for the patient and document findings in the medical unit. This was not done and the serious clinical state with obvious somnolence and possible respiratory depression was not addressed on 3/ 18/99 after Mr. Miller was seen at 6 a.m.”

This allegation of negligence cannot be defined as flagrant nor is it an allegation of more than ordinary negligence. In fact, it appears to address the acts or omissions of the nursing staff or nurses individually rather than the physicians. It certainly does not rise to the level of gross negligence on behalf of Dr. Paolucci.

In regard to defendant Nurse Lauffer, expert Dr. Geiger-Brown refers to Nurse Lauffer’s acts or omissions between 6 a.m. and 6:55 a.m. Dr. Geiger-Brown states that Nurse Lauffer “did not remain with the patient, nor direct the other R.N. that was present on the shift to continuously monitor the patient. He did not summon a physician to come and examine the patient. This is a failure to rescue. At the point where Mr. Lauffer made the decision to leave the patient unattended, he had no way of knowing if the patient’s level of consciousness was ascending or descending. There was no call placed to a nursing supervisor who could have obtained additional staff to assist with the care of this patient, or arranged for a transfer to a medical unit once seen by a physician.” Under the circumstances, Dr. Geiger-Brown adds that “[ljeaving a patient alone without monitoring would be unthinkable. Mr. Lauffer correctly held the Librium medication. What he did NOT do is seek immediate medical attention for the patient (i.e., calling a physician to the patient’s bedside), and remain with him to continuously monitor the patient’s vital signs and airway.” Although he called Dr. Hoffer at home, the call primarily dealt with withholding medications. Dr. Hoffer was told that the patient’s vital signs were consistent and that he was arousable. Dr. Geiger-Brown opines that among other things, Nurse Lauffer should have summoned an in-house doctor to address issues with Mark Miller. The alleged facts and Dr. Geiger-Brown’s expert report establish a prima facie case for gross negligence vis-a-vis Nurse Lauffer which could be considered by a jury.

Finally, defendant GMC may be vicariously liable for the acts or omissions of defendant Nurse Lauffer. Thus, GMC shall remain a defendant in this case on that basis. This court has ruled pursuant to the parties’ stipulation that GMC is not liable corporately. Flowever, plaintiffs alleged that GMC is still vicariously liable for not only the alleged gross negligence of Nurse Lauffer, but also for the ordinary negligence of all of the individual defendants, the combination of which, they allege, amounts to gross negligence. This court will defer ruling on this issue until the parties further brief this issue and argue/ discuss the issue with the court.

ORDER

And now, March 28, 2006, after consideration of defendants’ “motion in limine to preclude any evidence against them at the time of trial as plaintiffs’ claims are barred by the Pennsylvania Mental Health Procedures Act and summary judgment is otherwise appropriate at this time,” summary judgment is granted in regard to defendants Stephen J. Paolucci M.D., Scott HofferM.D., L.E. Baxter M.D., and Christina Wolfe RNC, and is denied in regard to defendants Geisinger Medical Center and James Lauffer.

      . Nurse Lauffer is referred to as “Lauffler” in the caption.


author: KISTLER, J,

text:
    Flanagan v. Hill
    C.P. of Centre County,
    no. 2005-1567.

      Paul H. Titus and Roy K. Lisko, for plaintiff.

      Joseph P Green, for defendants.

      March 1, 2006
   KISTLER, J,

Presently before this court are defendants’ preliminary objections to Michael S. Flanagan’s (plaintiff) amended complaint. Plaintiff was the owner and sole stockholder of First Affiliated Insurance Group.

FACTUAL BACKGROUND

In 1998, plaintiff formed First Affiliated to operate as an Erie Insurance agency. First Affiliated is in the business of selling insurance products offered by Erie, including homeowner’s insurance policies and car insurance policies. In 1997, plaintiff had applied to become an Erie agent, but Douglas Fitzgerald, Erie’s then regional vice president, rejected the application. Plaintiff appealed Fitzgerald’s decision to Erie’s Board of Directors. The Board of Directors subsequently approved plaintiff’s application, and plaintiff entered into an agency agreement with Erie. Erie later terminated the agreement due to an audit finding that a check payable to First Affiliated for premiums was deposited in the agency’s operating account rather than the agency’s premium escrow account.

DISCUSSION

Plaintiff argues in his amended complaint that: (1) Erie breached the contract by improperly terminating the agreement; (2) defendants Hill and Fitzgerald intentionally interfered with plaintiff’s contractual relation with Erie as an assignee of First Affiliated; (3) defendants Hill and Fitzgerald intentionally interfered with plaintiff’s contractual relation with Erie as an individual; and (4) defendants Hill and Fitzgerald conspired with each other to harm plaintiff by their concerted actions.

Regarding the first issue, plaintiff argues that Erie terminated the agreement based solely on an isolated incident in which a bookkeeper accidentally deposited the premiums into the incorrect account. Plaintiff maintains the bookkeeper acted without his knowledge, and the bookkeeper’s actions did not harm Erie. As such, plaintiff contends Erie terminated the agreement without cause.

With respect to the second and third issues, plaintiff contends defendants Hill and Fitzgerald intentionally interfered with his contractual relations with Erie, both in plaintiff’s official capacity as assignee of First Affiliated and individually. Plaintiff contends Fitzgerald was avenging plaintiff’s appeal of Fitzgerald’s denial of plaintiff’s agency license petition. Plaintiff believes defendants Hill and Fitzgerald initiated an improper and unwarranted investigation into First Affiliated, met privately with employees and disparaged plaintiff, encouraged Erie to terminate plaintiff, and encouraged First Affiliated employees to initiate steps to take over First Affiliated. Plaintiff believes these actions were intended to destroy his insurance business.

Regarding the fourth issue, plaintiff argues defendants Hill and Fitzgerald conspired against him by intentionally interfering with the agreement, disparaging plaintiff and First Affiliated, forcing plaintiff to sell First Affiliated, and by interfering with plaintiff’s sale of First Affiliated that resulted in a below-value sales price.

Plaintiff is also seeking attorney’s fees.

Defendants, on the other hand, first argue that plaintiff’s second allegation is improper. Defendants contend Hill and Fitzgerald cannot be regarded as third parties for an intentional interference with contractual relations claim because Erie is a corporation. As a corporate entity, Erie’s employees cannot be regarded as third parties in intentional interference with contractual relations actions. As such, plaintiff lacks capacity to sue Hill and Fitzgerald as individuals.

Defendants also allege that plaintiff’s second allegation fails to comply with Pa.R.C.P. 2002. Rule 2002 states:

“(a) Except as otherwise provided in clauses (b), (c) and (d) of this rule, all actions shall be prosecuted by and in the name of the real party in interest, without distinction between contracts under seal and parol contracts.
“(b) A plaintiff may sue in his or her own name without joining as plaintiff or use plaintiff any person beneficially interested when such plaintiff
“(1) is acting in a fiduciary or representative capacity, which capacity is disclosed in the caption and in the plaintiff’s initial pleading; or
“(2) is a person with whom or in whose name a contract has been made for the benefit of another.
“(c) clause (a) of this rule shall not apply to actions where a statute or other ordinance provides otherwise.
“(d) clause (a) of this rule shall not be mandatory where a subrogee is the real party in interest.”

Defendants argue plaintiff Flanagan is not a real party at interest on the cause of action pled. As such, this Count should be dismissed.

Defendants contend there is a legal insufficiency with the pleading regarding plaintiff’s third claim (defendant’s intentional interference with business relations with plaintiff as an individual). Defendants argue the essential elements of such a cause of action are an existing or prospective contractual relationship between the plaintiff and a third party, and the defendant interferes with performance of that contract by inducing a breach or otherwise causing a third party not to perform or enter into a contract. Also, pecuniary loss suffered by plaintiff as a result of the breach is required. Defendants argue Count Three merely restates the cause of action plaintiff states in Count Two. Moreover, defendants contend plaintiff’s claims are mere conclusions, not facts. As such, plaintiff has failed to state a cause of action upon which relief can be granted.

As to plaintiff’s fourth claim, defendants argue an essential element for a civil conspiracy is an agreement between two or more persons. Defendants also argue that, absent a valid claim for intentional interference with business relations, there can be no cause of action for civil conspiracy. Defendant also notes that plaintiff does not identify the other alleged co-conspirators in his amended complaint. As such, defendants maintain plaintiff has failed to state a claim upon which relief can be granted.

Defendants do not address plaintiff’s first claim, improper termination of the agreement by Erie, in their preliminary objections.

Preliminary objections should be sustained when the law will not permit a remedy, “and where any doubt exists, that doubt should be resolved by a refusal to sustain the preliminary objections.” J.B. Steven Inc. v. Board of Commissioners of Wilkens Township, 164 Pa. Commw. 315, 320, 643 A.2d 142, 144 (1994), appeal denied, 539 Pa. 671, 652 A.2d 841 (1994). In cases where preliminary objections would result in the dismissal of a cause of action, preliminary objections should only be sustained where it is clear and free from doubt that the pleader has not pleaded facts sufficient to establish his right to relief. Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992).

A demurrer will not be sustained unless the face of the pleadings shows that the law will not permit recovery, and any doubts should be resolved against sustaining the demurrer. DeHart v. Horn, 694 A.2d 16 (Pa. Commw. 1997). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Fewell v. Besner, 444 Pa. Super. 559, 563, 664 A.2d 577, 579 (1995). (citations omitted)

Concerning plaintiff’s Count I, defendants have not objected to said Count. As such, this court will not address this issue.

With respect to plaintiff’s Count II, this court believes it is appropriate for plaintiff to bring a claim against only Erie as an assignee of First Affiliated. However, plaintiff should not be permitted to bring a claim against Hill and Fitzgerald in his capacity as assignee. In an agreement dated May 24,2004 (assignment), and referred to in paragraph 2 of plaintiff’s amended complaint, First Affiliated assigned to plaintiff all claims it had against Erie. This court is convinced that, pursuant to Pa.R.C.P. 2002 supra, plaintiff is not a real party in interest on the cause of action pled against Hill and Fitzgerald. As such, this court believes it is appropriate to permit plaintiff to amend his pleading and raise the issue of Count II against only Erie, as well as attach the assignment for review.

Concerning plaintiff’s Count III, this court believes it is appropriate to sustain defendants’ preliminary objection. Plaintiff has not presented sufficient evidence to demonstrate that he retained an individual, or personal, right to sue Erie. Permitting plaintiff to sue Erie in his individual capacity would be outside of, or beyond that right assigned by First Affiliated, as plead in Count II. Flanagan, in his individual capacity, also cannot sue Hill or Fitzgerald as they were agents of the corporate entity, Erie. Fitzgerald was Erie’s regional vice president at the time of the alleged misconduct, and Hill was Fitzgerald’s subordinate. An individual may not bring suit against the agents of a corporation; instead, an individual, like Flanagan, must bring suit against the corporation. The court in Amabile v. Auto Kleen Car Wash, 249 Pa. Super. 240, 376 A.2d 247 (1977) noted that in Pennsylvania a corporate officer can only be held personally liable if he or she actually participates in the wrongful, injury-producing act. Id. at 250. This court determines plaintiff has not presented sufficient evidence suggesting personal involvement in the termination of plaintiff’s franchise by either Hill or Fitzgerald. As such, the preliminary objection to Count III is sustained.

Regarding plaintiff’s Count IV, this court believes it is appropriate to permit plaintiff to amend his pleading and elaborate on the conspiracy allegation. Plaintiff presents insufficient evidence to establish a conspiracy at this time. In his amended complaint, plaintiff alleges that Hill and Fitzgerald agreed to, among other actions: (1) intentionally interfere with the agreement; (2) force plaintiff to sell First Affiliated; (3) conduct covert investigations into plaintiff’s personal finances; and (4) by working with Erie employees to impede plaintiff in his sale of First Affiliated. This court does not believe these allegations are specific enough to allow this court to make a learned ruling as to whether the law will permit a remedy. In short, plaintiff fails to present specific evidence suggesting Hill and Fitzgerald had an agreement to interfere with First Affiliated’s business.

An agreement is an essential element of the allegation. The court in McKeeman v. Corestates Bank N.A., 751 A.2d 655, 660 (Pa. Super. 2000) opined that “in order to state a civil action for conspiracy, a complaint must allege (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage.” See also, McGuire v. Shubert, 122 A.2d 1087, 1092 (Pa. Super. 1998); Kadel v. McMonigle, 425 Pa. Super. 253, 261, 624 A.2d 1059, 1063 (1993). This court believes plaintiff has failed to fulfill these requirements. As such, this court deems it appropriate to sustain defendants’ preliminary objection, and permit plaintiff to amend this portion of his complaint.

ORDER

And now, March 1, 2006, defendants’ preliminary objection to plaintiff’s Count III of the amended complaint are hereby sustained.

It is further ordered that defendants’ preliminary objection to plaintiff’s Count II is hereby sustained in part, and overruled in part, and plaintiff shall have 20 days from the date of this order to amend his pleading and attach the assignment.

It is further ordered that defendants’ preliminary objection to plaintiff’s Count IV is hereby sustained in part, and overruled in part, and plaintiff shall have 20 days from the date of this order to amend his pleading and elaborate on the conspiracy allegations.

It is further ordered that defendants’ preliminary objection as to attorney’s fees is hereby sustained.

      . Plaintiff is also in violation of Pa.R.C.P. 1019 in that he failed to attach the assignment to the amended complaint.


author: CHESLOCK, J,

text:
    Commonwealth v. Curtin

      C.P. of Monroe County,
    no. 1036 CRIMINAL 2005.

      Robert A. Saurman, for Commonwealth.

      James A. Swetz, for defendant.
    January 26, 2006
   CHESLOCK, J,

Defendant is charged in the criminal information with involuntary deviate sexual intercourse (IDSI) forcible compulsion 18 Pa.C.S. §3123(a)(1), sexual assault 18 Pa.C.S. §3124.1, indecent assault without the consent of other 18 Pa.C.S. §3126(a)(1), indecent assault forcible compulsion 18 Pa.C.S. §3126(A)(2), selling/fumishing liquor to minors 18 Pa.C.S. §6310.1(a), corruption of minors 18 Pa.C.S. §6301(a)(l), andcontact/communication with minors 18 Pa.C.S. §6318(a)(l) following a non-consensual sexual encounter with a 17-year-old male on August 15, 2005 outside the Days Inn Motel in Stroudsburg.

At the preliminary hearing held on October 7, 2005, Senior District Judge Joan Hausman dismissed the charge of aggravated indecent assault 18 Pa.C.S. §3125 and bound over the above charges for the Court of Common Pleas. Defendant signed a waiver of appearance at arraignment on these charges on November 15,2005.

On January 18,2006, defendant filed a pretrial motion seeking habeas corpus relief arguing that the Commonwealth failed to establish a prima facie case concerning the “forcible compulsion” element of involuntary deviate sexual intercourse forcible compulsion (IDSI), 18 Pa.C.S. §3123(a)(1), and indecent assault forcible compulsion, 18 Pa.C.S. §3126(a)(2). Additionally, he seeks dismissal of unlawful contact with minors 18 Pa.C.S. §6318 for failure to establish a prima facie case on this charge at the preliminary hearing.

At the January 20, 2006 hearing on the matter, the Commonwealth submitted the transcript of the preliminary hearing, both sides offered their legal argument, but neither side offered witness testimony. Defendant submitted a brief in support of his argument.

On the afternoon of August 15,2005, defendant, John R. Curtin, age 20, hosted a party in Room 214 of the Days Inn Motel, Stroudsburg. In addition to the defendant, the invited guests were four young men, ages 20, 17, 17, and 13 years old. All were invited by the defendant the day before the event. Defendant served beer (five cases stored in the bathtub) and Mike’s Hard Lemonade to the underage guests. The alleged 17-year-old victim arrived at the party at 4:30 p.m. and over the course of the next several hours drank 10 beers. Around 9 p.m., he vomited several times. After lying down and resting for an hour, he got up and continued to drink. Defendant was also drinking. The effect on defendant’s behavior included staggering, slurring his words, and hugging a lot of people.

At one point after victim resumed drinking, the defendant invited victim outside for a cigarette. While outside victim lit his cigarette and walked down six steps following the defendant. They walked in the direction of the pancake house next door. Then the victim stumbled and fell to the ground. As he attempted to get up, victim alleges that defendant grabbed him by his shorts and pulled the shorts down. (N.T. 16.) Defendant held on to victim by putting his hands around victim’s waist and without using his hands put the victim’s flaccid penis into his mouth. Victim struggled to get his penis out of defendant’s mouth. “I had — when he was doing this I couldn’t really breathe and then when I looked down I had noticed that my genitalia was in his mouth and that’s when I started to push and shove.” (N.T. 18.)

The Commonwealth’s witness to the assault was the 13-year-old party goer. This witness testified that he was not drinking but had ingested “a sip of Mike’s Hard Lemonade.” (N.T. 58.) He had been directed to check on the whereabouts of the two by his older brother who was concerned for their safety. The witness testified, “I saw John’s hands, like, on his hips and, like, after he pulled his [victim’s] pants down he had him like gripped like this around his stomach and [victim] was, like, trying to run and I saw John’s head in the genitalia area.” (N.T. 49.) Witness did not see any actual contact between the defendant’s mouth and victim’s genitalia. Witness then returned to the motel and reported what he had observed to the other party goers.

A petition for writ of habeas corpus is the proper manner to test a pretrial finding that the Commonwealth possesses sufficient evidence to establish aprima facie case. Commonwealth v. Saunders, 456 Pa. Super. 741, 745, 691 A.2d 946, 948 (1997). (citations omitted) To establish a prima facie case, “the Commonwealth is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant the belief that the accused committed the offense.” Commonwealth v. Lutz, 443 Pa. Super. 262, 266, 661 A.2d 405, 407 (1995) citing Commonwealth v. McBride, 528 Pa. 153, 158, 595 A.2d 589, 591 (1991). The Commonwealth establishes a prima facie case when it produces evidence that, if accepted as true, would warrant the trial judge to allow the case to go to the jury. Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001). (citations omitted) Moreover, the weight and credibility of the evidence are not factors at this stage, and the Commonwealth need only to demonstrate sufficient probable cause to believe the person charged has committed the offense. Id. at 1180. Inferences reasonably drawn from the evidence of record, which would support a verdict of guilty, are to be given effect, and the evidence must be read in the light most favorable to the Commonwealth’s case. Commonwealth v. Owen, 397 Pa. Super. 507, 510, 580 A.2d 412, 414 (1990).

Defendant seeks dismissal of charge of IDSI and the indecent assault charge arguing that the Commonwealth has failed to prove the element of “forcible compulsion” in each.

“Involuntary Deviate Sexual Intercourse (IDSI), 18 Pa.C.S. §3123 is defined:

“A person commits a felony of the first degree when the person engages in deviate sexual intercourse with complainant:
“(1) by forcible compulsion
“(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
“(3) who is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring;
“(4) where the person has substantially impaired the complainant’s power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants, or other means for the purpose of preventing resistance;
“(5) who suffers from a mental disability which renders him or her incapable of consent; or [...]
“(7) who is less than 16 years of age and the person is four or more years older that the complainant and the complainant and person are not married to each other.”

Defendant is charged under this statute under subsection (a)(1) by forcible compulsion.

Indecent Assault, 18 Pa.C.S. §3126 at the time of the alleged crime was defined as:

“A person who has indecent contact with the complainant or causes the complainant to have indecent contact with the person is guilty of indecent assault if:
“(1) the person does so without the complainant’s consent;
“(2) the person does so by forcible compulsion;
“(3) the person does so by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
“(4) the complainant is unconscious or the person knows that the complainant is unaware that the indecent contact is occurring;
“(5) the person has substantially impaired the complainant’s power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants, or other means for the purpose of preventing resistance;
“(6) the complainant suffers from a mental disability which renders him incapable of consent;
“(7) the complainant is less that 13 years of age; or
“(8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.”

Defendant is charged under this statute under two sections: section (a)(1) without consent and section (a)(2) by forcible compulsion. (Statute has since been revised, approved 11/23/05.)

Forcible compulsion is defined as compulsion by use of physical, intellectual, moral, emotional, or psychological force, either expressed or implied. The term includes, but is not limited to, compulsion resulting in another person’s death, whether the death occurred before, during or after sexual intercourse. 18 Pa.C.S. §3101.

Our Supreme Court analyzed forcible compulsion in Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986), holding that “forcible compulsion” as used in section 3121(1) (rape statute) includes not only physical force or violence but also moral, psychological, or intellectual force used to compel a person to engage in sexual intercourse against that person’s will. The Superior Court had previously held that the test for “forcible compulsion” under the IDSI section of the Crimes Code is identical with the test for forcible compulsion under section 3121, the rape statute. Commonwealth v. Williams, 294 Pa. Super. 93, 439 A.2d 765 (1982).

Rhodes enunciated the factors used to determine whether forcible compulsion was present. It is based on a totality of the circumstances presented to the fact-finder. The factors to be weighed in that determination include the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim and whether the victim was under duress. The list of possible factors is by no means exclusive. Rhodes, supra at 556, 510 A.2d at 1226.

In Rhodes, a 20-year-old defendant was found to have used forcible compulsion to engage in intercourse with an 8-year-old victim who knew defendant as a neighbor for three years. Defendant lured the victim into an abandoned building and raped her. There the court found that there was the element of forcible compulsion, or the threat of forcible compulsion that would prevent resistance by a person of reasonable resolution, inherent in the situation in which an adult who is with a child who is younger, smaller, less psychologically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexual acts. Rhodes, supra at 557, 510 A.2d at 1226.

Courts have found forcible compulsion in situations where victim awoke from sleep to find defendant having sexual intercourse with victim and victim screamed and pushed defendant away (Commonwealth v. Price, 420 Pa. Super. 256, 616 A.2d 681 (1992)), where defendant pushed victim down on bed and victim begged defendant to stop and pushed defendant’s head away as he attempted to perform oral sex on her, defendant then stood up and raped victim (Commonwealth v. Graraffa, 440 Pa. Super. 484, 656 A.2d 133 (1995)), and where victim was wheelchair bound, with a central nervous system disease, unable to speak and with little muscle strength and unable to defend against defendant performing oral sex on him (Commonwealth v. Smolko, 446 Pa. Super. 156, 666 A.2d 672(1995)).

However, no forcible compulsion was found where victim stated “no” throughout her encounter with defendant and defendant pushed victim on to a bed prior to having sexual intercourse with her. Victim was not restrained in any manner during the penetration, and the weight of defendant’s body on top of her was the only force applied. (Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994).) The court stated, “where there is a lack of consent, but no showing of... physical force, a threat of physical force or psychological coercion, the ‘forcible compulsion’ requirement... is not met.” Id. at 149, 641 A.2d at 1164.

In applying the factors from Rhodes to the facts in this case, we find both victim and defendant to be close in age (17, 20), with no evidence of any physical incapacity on the part of the victim on the night of the alleged incident. Both victim and defendant were likely to have been impaired as a result of the excess alcohol consumption. The atmosphere and physical setting on the night of the incident was an underage drinking party at a local motel. The incident itself occurred outside in an area between the motel and another business on the same street. There is no indication that the defendant was in a position of authority or custodial control over the victim. Defendant was host of the party but victim was not dependent on him for shelter or transportation. There is no evidence that victim was under duress at the time of the incident. Defendant at the time of the incident was holding victim around the waist, victim’s arms and legs were not restrained. Victim’s testimony was that he pushed and shoved when he realized what was happening. Clearly there was no consent on the part of the vietim. However, there does not exist any showing of physical force, threat of physical force or psychological coercion to meet the requirement of forcible compulsion.

Reviewing the factors used to assess whether forcible compulsion exists as outlined from Rhodes and applied in other cases, we find that there is insufficient evidence presented to meet the element of forcible compulsion. Commonwealth has failed to prove the element of forcible compulsion, therefore the charges of IDSI forcible compulsion 18 Pa.C.S. §3121(a)(l) and indecent assault forcible compulsion 18 Pa.C.S. §3126(a)(2) are dismissed.

Defendant also seeks dismissal of unlawful contact with a minor 18 Pa.C.S. §6318, arguing the statute requires the accused to solicit a minor to commit a sexual act. We disagree. Our reading of the statute is that it includes the actions allegedly committed by the defendant. “When interpreting a statute, our courts must give plain meaning to the words therein. ‘It is not a court’s place to imbue the statute with a meaning other than that dictated by the plain and unambiguous language of the statute.’ ” Commonwealth v. James, 863 A.2d 1179, 1182 (Pa. Super. 2004) (quoting Commonwealth v. Engle, 847 A.2d 88, 91 (Pa. Super. 2004)). (internal citation omitted) When the words of a statute are clear and free from all ambiguity, that plain language is generally the best indication of legislative intent. Bowser v. Blom, 569 Pa. 609, 807 A.2d 830, 835 (2002).

Unlawful contact with a minor 18 Pa.C.S. §6318 is defined as:

“A person commits an offense if he is intentionally in contact with a minor for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within the Commonwealth:
“(1) any of the offenses enumerated in chapter 31 (relating to sexual offenses).
“(2) open lewdness as defined in section 5901
“(3) Prostitution as defined in section 5902
“(4) Obscene and other sexual materials and performances as defined in section 5903
“(5) Sexual abuse of children as defined in section 6312
“(6) Sexual exploitation of children as defined in section 6320
“ ‘Contacts’ is defined as direct or indirect contact or communication by any means, methods, or devise, including contact or communication in person ....”

Defendant is charged under section (a)(1) of the statute. This statute applies to the defendant where the defendant planned a party, contacted the victim and invited him to a party and then took sexual advantage of him. The defendant faces two charges enumerated in chapter 31, the sexual assault 18 Pa.C.S. §3124.1 and the indecent assault without the consent of other 18 Pa.C.S. §3126(a)(1). The contact between the defendant and victim was direct and in person, the defendant is alleged to have engaged in an offense enumerated in chapter 31 and in this instance both the person initiating the contact and the person contacted were within the Commonwealth. All of the elements of this statute have been met; the Commonwealth has met its burden.

Accordingly we enter the following order:

ORDER

And now, January 26,2006, the defendant’s motion is granted in part and denied in part. The charges of involuntary deviate sexual intercourse forcible compulsion and indecent assault forcible compulsion are dismissed.