author: WETTICK JR., J.,

text:
    Irvin v. Mason

      C.P. of Allegheny County,
    no. GD99-6878.

      David J. Manogue, for plaintiff.

      David M. Chmiel, for defendant.
    September 30, 2002
   WETTICK JR., J.,

Defendant’s motion to compel investigative report and supplemental answers to interrogatories is the subject of this opinion and order of court. The issue raised through the motion is whether the attorney-client privilege applies to communications between plaintiff and an investigator retained by plaintiff’s counsel for the purpose of developing a file that counsel will review in deciding whether to accept plaintiff’s case.

Plaintiff was injured on May 9, 1997. She promptly contacted the Specter law firm to seek representation. On May 13, 1997, plaintiff furnished an investigator (Americus V. Rocco) with a two-page detailed description of the accident as well as the other information requested for an evaluation of her claim. Mr. Rocco submitted this information regarding plaintiff’s claim to the Specter law firm which made the decision to accept her case. Through her motion to compel, defendant seeks this information which plaintiff furnished Americus Rocco, including the written description of the accident.

At the time plaintiff contacted the Specter law firm, large numbers of people were contacting this law firm to seek representation. It had been the law firm’s regular practice for over 10 years to use investigators with the firm of Guy Rocco & Associates to conduct, on the law firm’s behalf, detailed interviews with injury victims who had contacted the law firm regarding representation. The purpose of the interview was to assemble all relevant information about the particular incident from the potential client.

A Rocco investigator records the information provided by the potential client on a form designed by the Specter law firm. The form provides space for the client’s narrative of the incident which gave rise to the claim. The investigator forwards the form to one of the law firm’s attorneys. The attorney decides whether the law firm will accept the case on the basis of the information within the form, particularly the client’s detañed recoñection of the incident.

In conducting its interviews, a Rocco investigator speaks to the client outside the presence of others. Rocco investigators have been instructed to keep confidential all communications with potential clients.

In support of her position that the Rocco investigative file is discoverable, defendant initially relies on case law holding that investigative files prepared by an investigator retained by counsel are discoverable. See e.g., Briem v. Coppola, 37 D.&C.3d 350 (Allegheny Cty. 1984). This case law is based on Pa.R.C.R 4003.3 which allows discovery of information obtained in preparation for trial except, as to an investigator retained by counsel, disclosure of mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics. Consequently, the information which defendant seeks is not protected under the narrow protections afforded work product under Rule 4003.3.

Rule 4003.1(a) provides that a party may obtain discovery of a matter (including trial preparation material) only if the matter is not privileged. In the present case, plaintiff does not argue that the discovery which defendant seeks is protected under any work product protections afforded trial preparation material. Plaintiff’s opposition to the discovery is based solely on the attorney-client privilege.

Defendant contends that the attorney-client privilege does not apply because the communications which defendant seeks were made before the law firm had agreed to represent plaintiff and because these investigators are not employees of the Specter law firm.

Under Pennsylvania appellate court case law, the attorney-client privilege applies to communications made for the purpose of seeking representation. In Commonwealth v. Mrozek, 441 Pa. Super. 425, 657 A.2d 997 (1995), the defendant telephoned the attorney’s office to speak with counsel. Counsel’s secretary advised him that the attorney was with clients and not available to speak with the defendant at that time. The defendant responded that he had to talk to the attorney immediately because he had just committed a homicide.

The district attorney, when informed that the defendant had made an inculpatory statement to the secretary, subpoenaed her to testify. The defendant’s counsel filed a motion to suppress the evidence on the ground that it was protected by the attorney-client privilege. The trial court ruled that the attorney-client privilege did not apply because (1) at the time of the communication, defendant had not yet spoken to the attorney; and (2) the secretary was not a subordinate for purposes of the privilege. The Superior Court reversed. It stated that it would follow the case law within other jurisdictions holding that the attorney-client privilege covers preliminary communications with regard to the retention of counsel.

Defendant’s second argument that the attorney-client privilege does not extend to information which the client furnished to an investigator retained by counsel is also contrary to settled Pennsylvania appellate court case law.

In Commonwealth v. Hutchinson, 290 Pa. Super. 254, 434 A.2d 740 (1981), the court held that the attorney-client privilege applied to a statement of a client of the public defender made to an investigator from the public defender’s office. The court cited case law holding that the privilege attaches to statements made to a lawyer or his agents.

In Commonwealth v. Mrozek, supra, the court also rejected the trial court’s ruling that the attorney-client privilege did not apply because the secretary was not a subordinate for purposes of the privilege. The Superior Court quoted 8 Wigmore Evidence §2301 (“The assistance of these agents being indispensable to his work and the communications of the client being often necessarily committed to them by the attorney or by the client himself, the privilege must include all the persons who act as the attorney’s agents.” 441 Pa. Super. at 430,657 A.2d at 999). The court also relied on an opinion of the Illinois Supreme Court in People v. Knipenberg, 66 Ill.2d 276, 6 Ill. Dec. 46, 362 N.E.2d 681 (1997), which reversed a lower court decision allowing impeachment with statements made by a defendant to an investigator.

In Commonwealth v. Noll, 443 Pa. Super. 602, 662 A.2d 1123 (1995), the attorney whom Mr. Noll had retained hired an accident reconstruction expert (Mr. Bowes) to assist in preparation for possible litigation. Apparently as a result of the expert’s findings, Mr. Noll decided not to pursue his civil lawsuit. Subsequently, the Commonwealth employed Mr. Bowes to investigate the incident and thereafter filed a criminal complaint. The trial court granted Mr. Noll’s motion in limine to preclude the testimony of Mr. Bowes. On appeal, the Superior Court affirmed. The court ruled that where a third party is retained by an attorney to assist the attorney in giving legal advice to the client, information which the attorney or the client furnishes this third party is protected by the attorney-client privilege.

Legislation at 42 Pa.C.S. §5944 governing the psychotherapist/patient privilege provides that the confidential relations and communications between a psychologist or psychiatrist and the client shall be on the same basis as those provided or prescribed by law between an attorney and client. Pennsylvania appellate courts have looked to case law governing the attorney-client privilege in addressing privilege claims based on this legislation.

In Kalenevitch v. Finger, 407 Pa. Super. 431, 595 A.2d 1224 (1991), the defendant sought discovery of information which the plaintiff-wife furnished to a registered nurse employed by a licensed psychologist. The court ruled that the psychotherapist privilege applied on the basis of the Pennsylvania Superior Court’s ruling in Commonwealth v. Hutchinson, supra, and case law in other jurisdictions cited by the court holding that the attorney-client privilege extends to an agent of the attorney if that person assists the attorney in providing legal services.

In Commonwealth v. Simmons, 719 A.2d 336 (Pa. Super. 1998), a defendant who was accused of sexually abusing a child sought the records of the treatment center (Mentor) where the child was being treated. A licensed psychiatrist whom Mentor employed composed an individual service plan for each child in the program, to be carried out by other members of a treatment team. According to Mentor, a treatment team includes a clinical coordinator with a master’s degree in a human service field who regularly visits the home in which the child resides. In addition, the treatment team includes a Mentor adult (also known as a “mental health technician”) with whom the child lives. (In the contract between the adult and Mentor, the Mentor adult is described as an independent contractor.) Mentor adults are trained by Mentor for at least three days in a variety of skills necessary for living with and caring for the child. The Mentor adult is responsible for carrying out the individual service plan on a daily basis and keeps a daily observational log of the child.

The trial court ruled that the statutory privilege covered only communications between the child and the psychiatrist; the statutory protections did not extend to the Mentor adult or clinical coordinator because they are not psychiatrists or psychologists. The Superior Court reversed, stating that the privilege also reached confidential communications to the Mentor adult, to the clinical coordinator, and to other program supervisors because they are all subordinates of the psychiatrist who oversees the child’s treatment. The court relied on the case law describing the scope of the attorney-client privilege:

“In the attorney-client context, the job description of the recipient of a confidential communication or their lack of legal training is irrelevant so long as the recipient is an agent of an attorney and the statement is made in confidence for the purpose of obtaining or facilitating legal advice. We find that this reasoning should apply with equal force to members of the Mentor treatment team in conversations with T.W. in the course of facilitating the treatment plan.” Id. at 343.

In the present case, defendant apparently contends that the law will differentiate between communications between the client/potential client and an employee of the law firm and communications between a client/potential client and an independent contractor hired by the law firm. Defendant does not cite any case law supporting this proposition and none of the case law which I reviewed makes such a differentiation. Furthermore, there would be no reason to do so. The controlling issue is whether the non-attorney to whom the confidential communication is made is acting on behalf of a lawyer in connection with legal services which the lawyer is providing or may provide.

For these reasons, I enter the following order of court:

ORDER

On September 30, 2002, it is hereby ordered that defendant’s motion to compel investigative report and supplement answers to interrogatories is denied.

      . Defendant concedes that plaintiff may strike the investigator’s “mental impressions, conclusions or opinions regarding the value or merit of the claim pursuant to Pa.R.C.P. 4003.3.” Brief in support of motion to compel investigative report at 4.


source: Caselaw Access Project

author: PAPALINI, J.,

license: Public Domain

text:
    Evangelista v. Similaro

      Carole F. Kafrissen, for plaintiff.

      Paul E. Peel, for defendants.
    May 24, 2002
   PAPALINI, J.,

Defendants John P. Similaro D.O. and Inter Med Associates P.C. have filed an appeal of our order of December 18, 2001, denying their motion for post-trial relief.

I. FACTUAL HISTORY

(1) A complaint was filed against the above captioned defendants alleging medical malpractice for failing to diagnose decedent Fernando Evangelista’s lung cancer for a period of one and a half years.

(2) The case proceeded to trial before a jury with the undersigned presiding. On July 30, 2001, the jury returned with a verdict in favor of plaintiff and against defendants John P. Similaro D.O. and Inter Med Associates PC., jointly and severally, in the amount of $100,000 (wrongful death) and $300,000 (survival action). The jury found in favor of defendant Michael A. Venditto D.O.

(3) Dr. Similaro was Mr. Evangelista’s treating physician and Inter Med was Dr. Similaro’s medical practice.

(4) Plaintiff filed a petition for delay damages and Dr. Similaro and Inter Med filed a motion for post-trial relief. Briefs were filed and oral argument was held.

(5) On December 18, 2001, we issued an order denying the motion for post-trial relief and awarding delay damages of $32,362.50 in the wrongful death action and $97,102.50 in the survival action.

(6) Defendants filed a timely appeal.

(7) Plaintiff was represented at trial and during post-verdict proceedings by Carole F. Kafrissen, Esquire. All defendants were represented at trial by Francis T. McDevitt, Esquire, and during post-verdict proceedings by Paul E. Peel, Esquire.

II. ISSUES

In response to an order from this court, defendants filed a statement of matters complained of on appeal. We will only address the issues raised therein:

(1) The trial court erred in denying the defendants’ motion for judgment n.o.v. due to plaintiff’s failure to present sufficient medical expert testimony to meet her burden of proving that defendants caused the injuries to Femando Evangelista. (Citing N.T. 11-67, 7/18/01; N.T. 676-93, 7/25/01.)

(2) The trial court committed reversible error by refusing to allow the jury to consider whether Femando Evangelista’s failure to quit smoking constituted contributory negligence on his part. (Citing N.T. 25, 47, 51, 61, 7/18/01.)

in. DISCUSSION

A. Sufficiency of Evidence

In Pennsylvania, in order to establish a prima facie case of medical malpractice, the plaintiff must prove that: (1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of that duty was the proximate cause of or a substantial factor in bringing about the patient’s harm; and (4) the damages suffered by the patient were a direct result of that harm. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990); Joyce v. Boulevard Physical Therapy & Rehabilitation Center, 694 A.2d 648, 653-54 n.3 (Pa. Super. 1997); Eaddy v. Hamaty, 694 A.2d 639, 642 (Pa. Super. 1997).

The defendants conceded that plaintiff may have established that Dr. Similaro’s acts deviated from good and acceptable medical standards, but they contended that plaintiff failed to meet the burden of proving that the negligence caused any harm to Mr. Evangelista. Specifically, defendants asserted that the testimony of plaintiff’s expert witness, Daniel H. Sterman M.D., was inadequate because, by using words such as “possibility” and “likelihood” he did not adequately express his opinion as to whether Mr. Evangelista had lung cancer when Dr. Similaro treated him and whether the cancer could have been detected a year earlier. (Citing N.T. 11-67,7/18/01; N.T. 676-93, 7/25/01.)

The evidence was that Mr. Evangelista, then 53, a heavy smoker and film projectionist, began coughing up blood in October 1993. He saw his family doctor, Dr. Baldino, who ordered x-rays and then a CAT scan. The CAT scan showed abnormalities in his lungs and chest. (N.T. 13-14, 7/18/01.) Dr. Baldino referred Mr. Evangelista to two partners of Inter Med, Dr. Similaro and Dr. Venditto.

Dr. Similaro became the primary treating physician, with Dr. Venditto at times consulting. He first saw Mr. Evangelista in December of 1993. After examining him and doing x-rays, a CAT scan and a pulmonary function test, he diagnosed the problem as pneumoconiosis or anthracosis, a non-cancerous condition caused by exposure to carbon rods in his work. He also concluded that Mr. Evangelista was suffering from chronic obstructive pulmonary disease (COPD) and congestive heart failure from a combination of smoking and carbon inhalation. He also noted one pulmonary nodule in his right lung. (N.T. 14, 7/18/01; N.T. 636-39, 7/25/01.)

Mr. Evangelista saw Dr. Similaro several times up until November 28, 1994, and was given chest x-rays and a CAT scan, but no biopsy was done. He was told to return in May of 1995. (N.T. 15-16, 7/18/01; N.T. 646, 7/25/ 01.)

In March of 1995, Mr. Evangelista began having severe back pain. Thereafter, he was diagnosed with stage IV cancer. In addition to his lungs, the cancer was in multiple bones, including his spine and ribs. There were lesions in his adrenal glands. By then he was in great pain; he died in June of 1995. (N.T. 21-22, 7/18/01.)

Plaintiff’s expert witness was Daniel H. Sterman M.D. who testified on July 18, 2001. He is a specialist in the field of pulmonary, oncologic and critical care medicine. (N.T. 4-9, 7/18/01.)

Dr. Sterman testified that Mr. Evangelista’s cancer had not originated within his abdomen. (N.T. 24.) He stated that given Mr. Evangelista’s risk factors and the fact that other sources of the cancer had been excluded, it was his opinion that the cancer had originated in his lungs, but that he could not state that with complete certainty because no lung biopsy was ever performed. (N.T. 26-27.)

Dr. Sterman further testified that Dr. Similaro breached the standard of care by failing to perform a bronchos-copy in 1994. He concluded that if one had been done, the cancer in the lung would have been detected at an earlier stage, which would have presented additional treatment options, prolonged Mr. Evangelista’s life, and made complete recovery a possibility. He testified that due to the breach, Mr. Evangelista’s cancer was not diagnosed until it was terminal, giving him no chance of survival and an extremely abbreviated life span. (N.T. 27-31.)

At the conclusion of his testimony, Dr. Sterman answered in the affirmative when he was asked if his opinions were all based on a reasonable degree of medical certainty in his field of specialization. (N.T. 33.)

An expert’s use of “less definitive language in . . . parts of his testimony [does] not render his opinion in-admissibly speculative, as long as he state[s] his opinion with sufficient definiteness at some point.” Hreha v. Benscoter, 381 Pa. Super. 556, 562, 554 A.2d 525, 528 (1989).

After a review of Dr. Sterman’s testimony in its entirety, we concluded that it was sufficiently definitive to meet plaintiff’s burden of proof as both breach of the standard of care and causation of harm.

B. Smoking

Defendants also asserted that we committed reversible error by refusing to allow the jury to consider whether Fernando Evangelista’s failure to quit smoking constituted contributory negligence on his part. (Citing N.T. 25, 47, 51, 61, 7/18/01.)

The plaintiff’s theory in this case was that the defendants were negligent in not diagnosing Mr. Evangelista’s cancer sooner. There is no allegation that they caused the cancer. The fact Mr. Evangelista continued to smoke between 1993 and 1995 did not impede the diagnosis of his cancer.

Therefore, as a matter of law, there was no contributory negligence on the part of Mr. Evangelista that was a substantial factor in causing his injury. Thus, the court did not err when we refused to permit the jury to consider the issue of Mr. Evangelista’s contributory negligence.

However, Mr. Evangelista’s smoking habit certainly was a relevant factor in assessing the harm to him caused by the defendants’ negligence. This issue was properly argued by defense counsel for the jury’s consideration. (N.T. 771, 790, 7/26/01.)

For the reasons set forth above, defendants’ motion for post-trial relief was denied.


author: JAMES, J.,

text:
    Commonwealth v. Fisher

      C.P. of Columbia County,
    no. 774 of 2001.

      Anthony McDonald, for plaintiff.

      Keith O. Barrows, for defendant.
    June 20, 2002
   JAMES, J.,

On August 9, 2001, Catawissa Code enforcement officer, James G. Haney, issued a citation charging defendant with a violation of Catawissa Borough Ordinance 268 section 102, which prohibits “the keeping of certain animals or reptiles not normally or ordinarily domesticated or not capable of being kept as a household pet.” Defendant was found guilty before the district justice and appealed to this court. A hearing was held on the summary appeal on December 27, 2001. After the hearing the parties were granted until January 25, 2002, to brief certain constitutional arguments raised by defendant in a motion to dismiss.

The defendant raises two issues. First, defendant submits that the ordinance is unconstitutional because (1) it enables an unlawful seizure of property (i.e., pets in this case); (2) it is vague because it fails to adequately define and describe the nature of the prohibited conduct, depriving the defendant of his Fourteenth Amendment due process rights; and/or (3) defendant has been selectively prosecuted, once again depriving defendant of his Fourteenth Amendment due process rights. This court finds that the ordinance is constitutional, and that defendant’s motion to dismiss should be denied. The applicable ordinance provides:

“Certain animals prohibited. It shall be unlawful for any person to keep hogs, swine or any wild animal at any place within the Borough of Catawissa except where the same shall be permitted under the zoning ordinance, in a park, zoological garden, or similar establishment for public exhibition.” Catawissa Borough Ordinance 268 §102.

The ordinance defines a “wild animal” as “any animal, bird, fowl, or reptile not normally or ordinarily domesticated; not normally or ordinarily raised in this area and climate as livestock or for work or breeding purposes; or not capable or being kept as a household pet.” Catawissa Borough Ordinance 268 §101. “Household pet” is defined as “any dog, cat, or other domestic animal normally and ordinarily kept in or permitted to be at large in the dwelling of its owner.” Id.

Defendant’s constitutional objections to the ordinance are strained and are not supported by the law or the facts of this case. First, the borough has the power to enact ordinances to protect the comfort, health and welfare of its citizens. See Redevelopment Authority of Oil City v. Woodring, 498 Pa. 180, 445 A.2d 724 (1982). The borough’s exercise of that power must be reasonable. Ramey Borough v. Commonwealth Department of Environmental Resources, 466 Pa. 45, 351 A.2d 613 (1976). Catawissa has a duty to protect the health and welfare of its citizens. Certainly, Catawissa’s ordinance is a reasonable exercise of its police powers and does not violate the Fourteenth Amendment.

Second, the ordinance is not unconstitutionally vague. The Pennsylvania Statutory Construction Act (1 Pa.C.S. § 1903) provides guidance in construing statutes (and that is precisely what this court will do):

“(a) Words and phrases shall be construed according to rules of grammar and according to their common and approved usage; but technical words and phrases and such other as have acquired a peculiar and appropriate meaning or are defined in this part, shall be construed according to such peculiar and appropriate meaning or definition.
“(b) General words shall be construed to take their meanings and be restricted by preceding particular words.”

Third, there is simply no evidence that the defendant has been selectively prosecuted. He has not been deprived of any due process rights under the Fourteenth Amendment.

Defendant’s second issue is on the merits of the case. Defendant submits that the animals in his house are not wild animals and/or are not “capable of being kept as a household pet.” The second issue, then, is whether defendant’s alligators, caimans, and/or snakes and small lizards are household pets within the meaning of the ordinance, or, in the alternative, are capable of being kept as a household pet.

At the hearing it was proven that defendant has 28 snakes, two caimans, two American alligators, and a couple of different small reptile lizards. He bought them at pet stores and shows. The animals are locked in cages. He has shown the snakes to students at local schools. The snakes are not poisonous. Most of the snakes are between four to five feet long. On occasion, defendant allows the larger snakes to roam in his house with his supervision. At least one of the caimans is five feet long and the other one is similarly large. The alligators are about two feet long. The alligators and caimans will continue to grow indefinitely.

The ordinance in this case provides for criminal sanctions, i.e., a maximum penalty of up to 90 days in jail and/or a maximum fine of $300. Catawissa Borough Ordinance 268 §106. Thus, the Commonwealth has the burden of proving its case beyond a reasonable doubt. In regard to the alligators and caimans, the Commonwealth has proved beyond a reasonable doubt that these animals are wild animals not capable of being kept as household pets. The Commonwealth has provided photographs showing large alligators and caimans which are, in fact, not permitted to be at large in defendant’s dwelling. Within the clear meaning of the ordinance, defendant’s alligators and caimans are prohibited wild animals. Parenthetically, common sense would dictate that these types of animals should not be kept in someone’s house. They are inherently dangerous.

In regard to the snakes, based on the evidence presented by the Commonwealth, there is reasonable doubt as to whether these animals are prohibited under the ordinance. The Commonwealth simply states that there are numerous snakes in cages on the premises. The Commonwealth presented three photographs showing three large snakes that defendant said are permitted to roam at large, in the house, under his supervision, in accordance with the ordinance. Defendant keeps these snakes plus small lizards as household pets. He bought them at pet stores. Curiously, in this era, people are frequently keeping snakes, lizards, and iguanas as pets. Therefore, it cannot be said that they are not “normally or ordinarily kept in” the dwelling of their owner.

It appears that the borough’s real concern is the number of snakes that defendant is keeping. There may be another section of the ordinance that governs the number of animals and/or addresses health concerns, but those issues were not brought to this court by the Commonwealth. The Commonwealth is suggesting that anyone who keeps even one snake or reptile as a pet in Catawissa is guilty of violating the ordinance and is subject to a possible penalty of 90 days in jail and a $300 fine. Under the definitions set forth in the ordinance, one snake could be a household pet under proper circumstances. Even more snakes could be household pets, depending on the circumstances. However, there certainly could be circumstances where the number of snakes and the danger of the snakes would violate the section of the ordinance at issue here, or possibly some other section of the ordinance. This section of the ordinance or other sections could also apply to situations involving vicious dogs and/or large numbers of dangerous dogs or other animals. It depends on the circumstances. On the facts presented in this case, the Commonwealth has not proved that the snakes and small lizards in his house violate the ordinance.

VERDICT

And now, June 20,2002, the defendant is found guilty of violating Catawissa Borough Ordinance 268 § 102, and is fined $100 plus the costs of prosecution.

      . A “caiman” is a reptile similar to an alligator. Webster’s Ninth New Collegiate Dictionary (1990).


author: SHAFFER, J.,

text:
    Thomas v. Rensel

      C.P. of Butler County,
    A.D. no. 01-10531.

      Matthew E. Fischer, for plaintiffs.

      Nelson B. Gaugler, for defendants.
    January 9, 2002
   SHAFFER, J.,

Before the court are defendants’ preliminary objections to plaintiffs’ second amended complaint, defendants’ preliminary'objections to plaintiffs’ third amended complaint, and plaintiffs’ preliminary objections to preliminary objections. For the reasons set forth below, plaintiffs’ preliminary objections are overruled, and defendants’ preliminary objections are sustained in part and overruled in part.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs claim defendants called them on the phone and knowingly made false statements that their daughter had been in a car accident, was being life-flighted to the hospital, and was not expected to live. Plaintiffs filed a complaint alleging negligence and intentional infliction of emotional distress (IIED).

The complaint had several deficiencies, including not being properly verified. Plaintiffs’ attorney had signed the verification instead of the plaintiffs, and had not given a specific reason why the plaintiffs could not sign it. Defendants filed preliminary objections, claiming (1) insufficient specificity, (2) improper verification, (3) the claim for punitive damages under the count of negligence was not allowed by Pennsylvania law, and (4) failure to specifically state items of special damage.

Plaintiffs filed an amended complaint, which added a claim for exemplary and punitive damages under the IEED count. The amended complaint also had an improper verification, signed by plaintiffs’ counsel with no specific reason given for the absence of plaintiffs’ signatures. In addition, the copy of the amended complaint that plaintiffs’ counsel sent to defense counsel was missing page four. When informed of this, plaintiffs’ counsel agreed to mail the missing page to defense counsel, but never did. Defendants filed preliminary objections, arguing that (1) plaintiffs’ counsel would not send them the missing page, and (2) improper verification.

Plaintiffs filed a second amended complaint, which was an exact copy of the amended complaint down to the same improper verification. Defendants filed preliminary objections, asserting (1) improper verification and (2) requesting counsel fees under 42 Pa.C.S. §2503(7) as a sanction for the dilatory, obdurate and vexatious conduct of plaintiffs’ counsel, specifically his filing of successive complaints with the same errors.

Plaintiffs’ counsel wrote a letter to the court administrator requesting that defendants’ preliminary objections be stricken from the argument list. Defendants filed a motion to keep them on the argument list, which was granted.

Plaintiffs submitted a substitute verification to the second amended complaint. It was proper, since it was signed by the plaintiffs. Plaintiffs then filed a third amended complaint. The third amended complaint was an exact copy of the prior two complaints, except that it had a proper verification signed by the plaintiffs. It was unnecessary for plaintiffs to file this third amended complaint, since they had already substituted a proper verification. Defendants filed preliminary objections, (1) asserting that plaintiffs’ demand for punitive damages under a count of negligence is not permissible, and (2) once again requesting counsel fees as a sanction for dilatory, obdurate and vexatious conduct.

Defendants filed a motion to consolidate the arguments in their preliminary objections to the second and third amended complaints. This motion was granted.

Plaintiffs then filed a fourth amended complaint. This complaint adds a few paragraphs alleging defendants intended to cause distress to plaintiffs. It omits a claim made in the previous complaints that the defendants’ representations to plaintiffs were intended to induce the plaintiffs to take action in reliance thereupon. It also drops the claim for punitive damages under the negligence count. The fourth amended complaint is poorly drafted. It is missing the heading for the IIED count, and mixes the IIED paragraphs in with the beginning paragraphs that list the parties and amount in controversy. Defendants did not file preliminary objections to this complaint.

Plaintiffs then filed preliminary objections to preliminary objections. The objections contained an improper verification signed by counsel. Plaintiffs finally submitted a proper verification nine days later.

LEGAL ANALYSIS

Before the court are defendants’ preliminary objections to plaintiffs’ second amended complaint and preliminary objections to plaintiffs’ third amended complaint, and plaintiffs’ preliminary objections to preliminary objections. The court will first address plaintiffs’ preliminary objections.

Plaintiffs object that defendants’ preliminary objections to the third amended complaint were filed more than 20 days after service of the third amended complaint, in violation of Pa.R.C.P. §1026. However, defendants did not receive the third amended complaint until five days after it was filed, thus did not have a full 20 days in which to respond to it. The court will, under Pa.R.C.P. §126, construe Pa.R.C.P. §1026 liberally and disregard defendants’ late filing because it does not affect the substantial rights of the parties and doing so is in the interest of justice. Thus, plaintiffs’ objection is overruled.

Plaintiffs’ next objection is that defendants’ motion to keep preliminary objections on the argument list is improper because plaintiff filed a fourth amended complaint, which made defendants’ previous preliminary objections moot. Plaintiffs’ objection is improper, because nothing in Pa.R.C.P. §1028 permits a preliminary objection that challenges a motion. Also, plaintiffs did not oppose this motion when defendants brought it before the court. Therefore, plaintiffs’ objection is overruled.

Although the court declines to find all of defendants’ preliminary objections moot, it does conclude that two of the objections have been rendered irrelevant by the filing of plaintiffs’ fourth amended complaint. Specifically, the objections alleging that plaintiffs’ complaints were improperly verified, and that plaintiffs’ demand for punitive damages under a count of negligence is not allowed under Pennsylvania law. Plaintiffs’ fourth amended complaint contains a proper verification and it does not contain a demand for punitive damages under the count of negligence. These objections are therefore overruled.

Defendants’ remaining preliminary objection, asking for sanctions in the form of counsel fees under 42 Pa.C.S. §2503(7), is still relevant. Defendants argue that plaintiffs’ counsel acted in a dilatory, obdurate and vexatious manner during the pleadings stage of this case.

Plaintiffs’ last preliminary objection argues that defendants’ request for sanctions is not a permissible preliminary objection under Pa.R.C.P. §1028. The court agrees. However, requiring defendants to prepare a motion asking for counsel fees, which would most likely have the same wording as the preliminary objection, would serve no purpose and waste time. The court, under Pa.R.C.P. §126, will liberally construe section 1028 in order to seek a just and inexpensive determination of this issue. The court will consider defendants’ request for sanctions as set out in defendants’ preliminary objections and will treat the request as a motion for counsel fees.

Any participating party may be awarded reasonable counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter. 42 Pa.C.S. §2503(7). Any such award of counsel fees must be supported by a specific finding of dilatory, obdurate or vexatious conduct by the trial court. Township of South Strabane v. Piecknick, 546 Pa. 551, 686 A.2d 1297 (1996). In this case, the court finds that plaintiffs’ counsel’s actions were dilatory, obdurate and vexatious.

“Dilatory” is defined as “tending to cause delay.” Black’s Law Dictionary (7th Ed.). “Obdurate” is defined as “resistant to persuasion or softening influences: inflexible, unyielding.” Webster’s 3rd New International Dictionary of the English Language. “Vexatious” is defined as “without reasonable or probable cause or excuse; harassing; annoying.” Black’s Law Dictionary. (7th Ed.).

It is clear that plaintiffs’ counsel’s conduct in this case was dilatory and vexatious. Counsel had no reasonable basis for his conduct and his conduct was intended to cause a delay and be annoying. Counsel filed improper verifications with three of his five complaints, knowing that defendants cannot properly cross-examine the plaintiffs without a proper verification. He sent defense counsel a complaint with a page missing and failed to send them the missing page for five weeks after they requested it. Counsel filed three complaints in a row with the same exact wording, the only difference being that one of the three had a proper verification. He filed a third amended complaint with the same exact wording as the prior two complaints for no discernible reason. He then filed a fourth amended complaint which contains a missing count heading and other structural problems, none of which were in the prior four complaints. He persisted in filing successive complaints with identical errors. Counsel claims he was trying to keep this case moving, but his actions brought this case to a standstill.

Counsel’s conduct was also obdurate, as he was resistant to persuasion and inflexible. Despite defense counsel’s numerous preliminary objections, requests for sanctions, and threats to report counsel to the Disciplinary Board, counsel continued his dilatory and vexatious conduct by filing successive complaints that had no substantial difference between them, by filing successive complaints without fixing errors pointed out to him, and by refusing to provide all of the pages of a complaint to defense counsel.

Because plaintiffs’ counsel’s conduct during this case was dilatory, obdurate and vexatious, the court awards defense counsel reasonable counsel fees.

ORDER

And now, January 9, 2002, upon presentation of defendants’ preliminary objections to plaintiffs’ second amended complaint, defendants’ preliminary objections to plaintiffs’ third amended complaint, and plaintiffs’ preliminary objections to preliminary objections, it is ordered that defendants’ preliminary objections to improper verification and to the claim for punitive damages under a negligence count are overruled, as plaintiffs ’ fourth amended complaint has rendered them irrelevant. It is further ordered that defendants’ request for reasonable counsel fees is granted. Plaintiffs’ counsel is ordered to pay defense counsel $500 in counsel fees for dilatory, obdurate and vexatious conduct. It is further ordered that plaintiffs’ preliminary objections are overruled.


author: SPICER, P.J.,

text:
    Fairfield Area School District v. The National Organization for Children Inc.

      C.P. of Adams County,
    no. 01-S-1008.

      Michael I. Levin and Robert L. McQuide, for plaintiffs.

      Lawrence T. Hoyle, R. David Walk, Jr., Jan Fink Call, Wendi Meltzer, Michael N. Onufrak, Peter J. Mooney and Joseph M. Kuffler, for defendants.
    December 11, 2001
   SPICER, P.J.,

I

Preliminary Objections

This action was instituted on August 30, 2001, when Fairfield Area School District filed its complaint against defendants. Thereafter, on October 3, 2001, the court conducted a conference with counsel concerning FASD’s request for a preliminary injunction. Without vigorous objection by defendants, the court issued an injunction that froze the status quo as it existed at that time. Defendants were not enjoined from presenting an educational service or curriculum but were precluded from enrolling additional students.

This court summarily granted petitions by three other school districts requesting leaye to intervene in the action. We saw no prejudice to defendants and acted to avoid lengthy preliminary proceedings. For purposes of simplicity, we will refer to the parties collectively as plaintiffs and defendants, without specifying any particular party.

The court quickly learned that Adams County was not the only place where litigation was occurring. After being informed that the action concerned a charter issued by Morrisville Borough (Bucks County) School District, the court expressed some concerns about venue and was informed that defendants intended to file preliminary objections. During a telephone conference on October 5, 2001, we were told that preliminary objections had been filed. Nonetheless, with the agreement of counsel a hearing was scheduled on the preliminary injunction for October 25, 2001. Later, oral argument was scheduled on preliminary objections for November 16, 2001 and the hearing was continued until November 1, 2001.

We conducted a fairly lengthy hearing that spanned two days. The process would have been much longer, but counsel agreed to and did introduce proceedings from Butler County by reference. Numerous exhibits were received into evidence.

At the conclusion of the hearing, a decision was postponed pending filing of requests for findings and oral argument. We heard argument on both preliminary objections and the request for an injunction.

Defendants advance the following reasons for their preliminary objections:

1. The Action Should Be Dismissed, or in the Alternate, Stayed Pending Resolution of a Commonwealth Court Case Entered to No. 213 M.D. 2001, Pennsylvania School Boards Inc. v. Charles B. Zogby, Secretary of Education Designate

It is clear that none of the plaintiff school districts in our case was specifically named as a party in the Commonwealth Court action. Defendants base their plea of abatement on the fact that the complaint pending before Commonwealth Court includes a request for class certification that would include all school districts similarly situated to those involved in the action. However, plaintiffs point out that no certification has occurred. They have not directly participated in that action and are presently not parties to it.

Defendants point out that the same counsel represents school districts in each action and contend that the present action is “an attempt to circumvent the unfavorable May 11, 2001 ruling in the Commonwealth Court action, which denied the school districts’ petition for an injunction.” Brief, p. 6. As we point out in footnote two, we may not consider the motives of plaintiffs in ruling on the objection. The parties have stipulated that we are not bound by Judge Morgan’s decision in the Commonwealth Court action.

The court concludes that defendants are not entitled to abate this action. We have already expended considerable judicial resources and see no justification for a stay in this action.

2. The Action Should Be Dismissed Under Pa.R.C.P. 1028(a)(4) Because It Constitutes an Impermissible Collateral Attack on the Grant of a Charter by Morrisville School District and Because Plaintiffs Have Not Exhausted All Administrative Remedies

Defendants have provided a copy of Commonwealth Court’s slip memorandum opinion in Mosaica Academy Charter School v. Commonwealth of Pennsylvania, Department of Education, no. 803 M.D. 1998, in which that court stated:

“Additionally, the General Assembly has created and vested the Charter School Appeal Board with the exclusive authority to review an appeal by a charter school applicant or by the board of trustees of an existing charter school of a decision made by the local board of directors not to grant a charter. 24 P.S. §17-1717-A(i)(l). The Charter School Law is silent regarding whether there can be an appeal from a local school board’s decision to grant a charter school application. Concomitantly, the Charter School Law does not detail the prerequisite steps necessary to appeal the grant of a charter school application.” Id. at 8.

The Commonwealth Court went on to suggest that (a) sole discretion as to granting, denying or revocation of a charter rests with the school district defined as the local district acting upon the charter; (b) other school districts may not interfere in that decision; (c) the sole remedy is to attend meetings of the chartering school districts and request relief.

Although a memorandum opinion is not binding precedent, it certainly gives us pause concerning plaintiffs’ request that we declare the charter invalid. We may and do disagree with suggestions that the legislature has denied access to the courts by failing to provide for judicial review. Frankly, we cannot believe the legislature intended what we consider an absurd result, that is to empower each and every one of the 501 school districts in this Commonwealth to establish itself as the exclusive board of appeals from its own decision to grant a charter. This would mean that even when the grant of a charter clearly contravenes the law, the other 500 districts would be forced to journey to that local mecca and present their grievances.

It is also interesting that the Act provides for no consequence when an applicant fails to appeal a rejection of a charter application. Although defendants’ applications for a charter in Philadelphia and elsewhere were denied, defendants have nonetheless enrolled students from those school districts.

Members of the Momsville Borough School Board are doubtlessly fine people, but can hardly be considered motivated to police defendants’ performance. Under terms of the charter, that district’s children receive defendants’ services without costs and the district stands to receive some $600,000 per year from defendants, presumably for administrative expenses incurred in overseeing defendants. We also mention without comment that defendants have rented a building from the district and that plaintiffs have argued that the terms are very favorable to the district.

Nonetheless, our analysis of this case does not require us to declare the Morrisville charter invalid. Although we believe that the Charter School Law applies only to brick and mortar institutions, we take care to limit our consideration to students residing in the four plaintiff districts.

The Charter School Law does not make defendants an instrumentality of the Commonwealth. The clear import of the law is to free some educational services from requirements that bind school districts. Individuals and other entities outside the government sector form the charter school and a privately selected board of directors administers its business. Thus, venue in Adams County is proper under Pa.R.C.P. 1006.

The court dismisses preliminary objections.

II

Adjudication

Each counsel has filed extensive requests for findings of fact. Although facts can be succinctly stated, courtesy demands that we rule on the requests. We will consider them in the categories presented. Adoption of the requests merely means that the facts have been established by credible evidence. Relevance to the decision in this case does not necessarily follow.

Plaintiffs’ requests:

One through nine are adopted, except that “principle” is changed to “principal” throughout. Seven, which states that the court has not yet rendered a decision on the intervention request of Upper Adams School District is rejected. The order granting intervention was signed September 24, 2001.

Ten through 23 are adopted.

Twenty-four and 25 are adopted.

Twenty-six is adopted except that b.vii.7 is modified by substituting “testified” for “misrepresented,” and the last sentence is changed to read, “She later corrected this statement by admitting that they were applying with other school districts.” Thus we reject implications that the witness willfully lied.

Twenty-seven through 29 are adopted.

Thirty through 33 are adopted.

Thirty-four through 40 are adopted.

Forty-one is rejected. Testimony established that borough school district considers that either all requirements of the charter school agreement have been satisfied or are currently being satisfied.

Forty-two through 44 are adopted.

Forty-five through 56 are adopted except 54 is modified to read as follows:

“(54) Joseph Bard, who was employed by the Department of Education at the time that the Home Schooling Statute was enacted, was involved in the implementation of the home schooling statute. He testified that defendants’ program was essentially a home school program. However, defendants provided resources and materials not normally available to home schooled children.”

Fifty-seven through 71 are adopted.

Seventy-two and 73 are adopted. Seventy-four is rejected. Seventy-five through 78 are adopted.

Seventy-nine through 93 are adopted, except footnote 12 is not. That footnote states that Mr. Mandel apparently perjured himself in the Butler County proceedings. We are in no position to make such an assumption.

Ninety-four through 105, except 98 are adopted. As to 98, our record does not establish whether Judge Morgan heard or did not hear evidence prior to his ruling. Presumably, he did not due to the nature of his ruling, but we do not have the entire record in that case before us.

We decline to either accept or reject plaintiffs’ submitted conclusions of law. Although we agree with most if not all, our decision in this case does not require that we find the Morrisville Borough charter invalid or the Charter School Law unconstitutional.

Defendants’ requests:

Many of these requests are really matters of statutory interpretation. However, we rule as follows:

One through six are adopted. Seven is rejected. Eight is adopted. Defendants ask us to find, in submission 7, legislative approval for cyber schools. The mere fact that a bill is pending does not imply such approval. Furthermore, the House Bill 1733 recites that “cyber schools do not fit the requirements of the Charter School Law to have a suitable physical facility and to provide a minimum number of days or hours of instruction.”

Nine through 15 are adopted, except 11 and 13 are modified to state that the Department of Education sent an e-mail memorandum, defendants’ exhibit 50, to various school districts. The memorandum stated that until court held a specific cyber school to be illegal and that decision was affirmed on appeal “the department believes that school districts should refrain from advising parents that they will violate compulsory attendance laws if they enroll their children in a cyber charter school.” Requests 11 and 13 are also clarified to indicate that the Department of Education has neither the power nor the responsibility, except in disbursement of funds and involvement in the Charter School Appeal Board, to determine the validity of a particular charter school.

Sixteen through 20 are adopted. Twenty-one, which states that a charter school may enroll students from outside the district that grants the charter is rejected, as not completely stating applicable law. Twenty-two is rejected as submitted for the same reason. Twenty-three is adopted but changed to read that Einstein, in submitting and pursuing its application for a charter, presumably followed the procedure set forth in 24 RS. § 17-1723-A(e). Twenty-four, 25 and 26 are adopted. Although 27 accurately recites statutory language, that submission is modified to make it clear that no procedure exists in the statute for enforcing accountability, except to the chartering school district. Twenty-eight and 29 are adopted.

Thirty through 34 are adopted. Thirty-five is rejected. As to 35, it is true that Mr. Severs testified that 21 of 28 teachers were certified, cross-examination brought out that several teachers had stale certificates, and the witness could not say when or if they had been renewed. Although it may be true, as the submission suggests, that staleness is not an issue, this question was not raised in testimony or settled by evidence. Thirty-six and 37 are adopted. As to 38, while it is true that defendants utilize programs in an attempt to ensure that younger students comprehend lessons and requirements, a great deal of responsibility falls to parents or facilitators. Thirty-nine is adopted. All but the first line in 40 is adopted. We reject the finding that it is impossible to know in any learning environment whether a child is paying close attention to what is being taught. Although a teacher may not know all the time whether a student is paying close attention, teachers in classroom settings are usually on top of such problems.

Forty-one through 62 are adopted.

Sixty-three through 67 are adopted. Sixty-eight is adopted to the extent that the charter agreement requires Morrisville Borough School District to monitor defendants and Einstein’s board of directors are responsible for monitoring school activities. Sixty-nine through 80 are adopted. We see no need to either reject or adopt 81 in light of prior findings including plaintiffs’ number 54. We find there are similarities between defendants’ services and home schooling, but that defendants provide services and materials not normally available to home schooled children.

Eighty-two and 83 are adopted. Eighty-four is adopted in part. The court does not find that Dr. Blust’s comment concerning possible violation of mandatory attendance laws violated a PDE directive. There was no directive, merely an e-mail communication that contained suggestions and stated PDE’s position with respect to cyber schools. There was no violation.

Eighty-five is rejected as submitted. However, the court finds that students are not in danger of irreparable harm. However, plaintiffs are attempting to enjoin illegal activity.

Generally, the court adopts 86 through 94. However, we emphasize that we are not passing judgment on the legality of the Morris ville charter, nor on defendants’ course, presentation, methods of determining attendance and tracking students’ progress. Additionally, the record makes it clear that defendants began enrolling students before they were capable of providing educational services and before they had met all requirements of the Charter School Law.

Defendants’ supplemental requests:

Much of the supplemental requests is argument. One and two are adopted, except we reject the sentence, “In any event, the funding sought by Einstein is provided by the CSL, endorsed by PDE, and serves to educate children of taxpayers not being educated by plaintiffs.” It is true, however, that the sum of $80,000 claimed from Upper Adams School District is based upon students not currently being educated by that school district. Three, involving the definition of unreserved operating fund is irrelevant to this court’s decision. Four relates to the number of certified teachers. Certificates may be on file, but are not in evidence. At any rate, this finding is irrelevant for the purposes of this court’s order, The same comment applies to five and six.

Seven is adopted. Eight is rejected. Although it is only natural to suspect that Ms. Rothschild hoped to reap a large financial benefit from the endeavor, that fact is immaterial if defendants are otherwise entitled to payment. As to nine, we do not know enough about Ms. Rothschild or her literary contributions to state that she has significant experience in online education. In fact, the industry would appear to be in a formative stage and it is far from clear what “significant experience” means. Ten is rejected as submitted. It is clear that defendants scrambled to organize and prepare a curriculum. We have no idea how closely the Morrisville Borough School District or the Commonwealth will supervise defendants.

Eleven and 12 are adopted. Thirteen and 14 are rejected. Fifteen is adopted to the extent that Tutorbots and Einstein are separate legal entities. Evidence indicates, however, that each is actually controlled by Ms. Rothschild and her family. For example, a teacher, Andrew Goldman testified that he was hired by Howard Mandel. (Trial p. 98.) Otherwise the submission is rejected. Sixteen through 18 are rejected.

Nineteen is technically accurate and is adopted. Twenty is adopted. Twenty-one is adopted except for the comment that evidence adduced in this case establishes that defendants rushed to obtain a charter and later enrolled students when they were not adequately staffed or prepared to provide necessary educational services. As of the date of the last hearing, a majority of deficiencies had been remedied. Twenty-two through 26 are adopted. Twenty-seven represents a legal argument and is neither adopted nor rejected. Twenty-eight is adopted.

Discussion and narration of additional facts pertaining to injunction:

The General Assembly enacted the Charter School Law by adding a new article to the Public School Code on June 19,1997. 24 P.S. §17-1701-A et seq. At the time of the enactment, technology was not available for cyber schools and the legislation was geared toward traditional brick and mortar facilities. Although the Act provides that nothing in the Act precludes the use of computer and satellite linkages delivering instruction for students, we can assume that legislators watched the same television depictions of satellite linkages the rest of us viewed. One with which this court is familiar depicted students assembled in a classroom while receiving instruction from a distant, especially gifted teacher. The Act authorized local boards of school directors to issue charters. Although the Act specifically prohibited the grant of charters to entities for profit, it is silent concerning management contracts. Charter schools must be nonsectarian and may not provide religious instruction.

Charters are to be issued for initial terms of not less than three years or more than five years and may be renewed for five-year periods.

Charter schools are not required to obtain authorization from plaintiff-school districts to enroll students. Although local schools are required to pay tuition and provide transportation for charter school students, charter schools are not obligated to notify school districts in advance of expected expenses. In our case, plaintiffs had no idea that they would be obligated to pay tuition when budgets and taxes were established.

While it is true that tuition requests concern students that plaintiffs are not teaching, there is no indication that costs for providing public education for non-charter students has been reduced.

Defendants were not completely organized and were not in a position to provide educational services when they sought and obtained a charter from Morris ville Borough School District. They intended to fund their program through a Department of Education grant, which was not obtained. Although the secretary of education has opined that cyber schools are legal until proven otherwise, he has withheld payments for tuition apparently until litigational dust settles.

Tuition costs payable to a charter school are uniformly set and bear no relationship to the cost of providing education.

It is true that the $80,000 bill submitted to Upper Adams School District can probably be paid without diminishing educational programs or requiring a tax increase. It is also true that defendants stand to earn millions in tuition fees. The court is reminded of a statement made by the late senator from Illinois, Everett Dirksen, which we paraphrase, “a million here and a million there, and the first thing you know, we’re talking about real money.”

We hasten to clarify that we make no finding that defendants have done anything improper or illegal. Sometimes profit incentives can be powerful motivators. Nonetheless, should the legislature consider amending the Charter School Law and specifically address cyber schools, it may want to provide for a method of establishing tuition fees based upon expenses of providing tuition. It also may want to consider vesting the Department of Education with the power to charter and supervise cyber schools. The arrangement that defendants have made with Morrisville unfortunately engenders suspicion and doubts that Morrisville has real incentive to properly regulate defendants.

Although we are of the opinion that the Charter School Law authorizes only brick and mortar institutions, we refrain from passing judgment on Morrisville’s decision to issue a charter. We make no findings of propriety or impropriety in the chartering process. Instead we consider only what has occurred in Adams County in light of relevant statutory provisions.

Defendants are, pursuant to the Charter School Law, authorized to enroll nonresident students on a space available basis “if available classroom space permits.” Section 17-1723-A.

There is no indication that this wording involves technical words and phrases, or has acquired a peculiar and appropriate meaning as defined by statute. 1 Pa.C.S. §1903. Accordingly, the statutory language must be construed according to its common and approved usage. We therefore interpret “classroom space” as meaning space within a physical classroom setting. To construe it to mean cyberspace, or computer space within the confines of a student’s home, would make “classroom” meaningless. Although the Charter School Law has broad policy objectives, we cannot disregard clear words that are free from ambiguity under the pretext of pursuing the Charter School Law’s spirit. Id. section 1921(b).

The evidence clearly establishes that defendants have no classrooms.

The inescapable conclusion that we draw from all this is that defendants lack authority to enroll students who reside in plaintiffs’ districts. Without authority, such enrollment is illegal.

Although we deal with a request for a preliminary injunction, we also have produced an extensive record. It is difficult to believe that a trial would result in substantially additional evidence. Nonetheless, we consider the necessary elements for the grant of a preliminary injunction: (1) plaintiffs’ right to relief is clear; (2) the injunction is necessary to prevent immediate and irreparable harm not compensable by damages; (3) greater injury would result by refusing the injunction than by granting it; (4) the injunction restores the parties to the status quo that existed prior to wrongful acts; (5) the activity sought to be restrained is actionable and the injunction is reasonably suited to abate such action. Singzon v. Common wealth, Department of Public Welfare, 496 Pa. 8, 436 A.2d 125 (1981). A preliminary injunction may issue upon finding that an organization is acting contrary to statutory requirements or its own regulations. 15 Standard Pennsylvania Practice Injunctions §83.20.

We therefore conclude that (1) plaintiffs’ right to relief is clear; (2) an injunction is necessary to prevent a continuing violation of the law and therefore immediate and irreparable harm; (3) as between the parties, allowing defendants to operate in violation of law will result in greater harm than prohibiting them from doing so. We will fashion our decree to accommodate students who have enrolled in good faith; (4) a prohibitory injunction would restore the status quo as it existed before defendants wrongfully enrolled the students; (5) activities sought to be enjoined are actionable and the injunction is reasonably designed to abate such activities.

Although it is clear that plaintiffs have the right to enjoin defendants’ activities, we must consider the effect the injunction will have on the students who are enrolled. Time will be needed to either return those students to a classroom setting, or to make arrangements for home schooling. Ordinarily, we would give the parties an opportunity to present a schedule, but do not want to deprive defendants of their right to an immediate appeal. Our decree, therefore, will direct that defendants cease their activity at the end of the present marking period. However, the court will consider any reasonable request to extend the period.

Conclusions of law:

(1) This court has jurisdiction.

(2) The parties are properly before the court.

(3) Plaintiffs have proven their right to a temporary prohibitory injunction.

ORDER

And now, December 11, 2001, defendants’ preliminary objections are overruled. Defendants shall have the right to plead over in accordance with Pa.R.C.P. 1028(d).

Defendants are enjoined from enrolling or presenting educational services to students residing in plaintiff-school districts. This injunction shall take effect at the end of the present marking period.

      . This judge will retire from the bench at the stroke of midnight, which will be either December 31, 2001 or January 1, 2002, depending upon one’s perspective. For guidance of whoever inherits this case, we had the argument transcribed.

      . One of the more interesting discussions that we have read about lis pendens appears in Davis Cookie Co. Inc. v. Wasley, 389 Pa. Super. 112, 566 A.2d 870 (1989). We read that the plea is based upon an ancient maxim “nemo debet bis vexari pro una et eadem cause” (no man shall be vexed twice for the same cause of action). 389 Pa. Super. at 119, 566 A.2d at 873. The full name of the plea is lis alibi pendens. That decision makes it clear that an action may be dismissed because of an earlier proceeding unless both suits involved the same parties (acting in the same legal capacity), the same cause of action (with due regard to common-law distinctions between contract, trespass and equity actions), the same rights asserted and the same relief requested. Unlike federal law, Pennsylvania cannot consider judicial economy and motivations of the parties unless all required common-law unities are present.

      . Interestingly, the Charter School Law, in section 17-1720-A provides that “[t]his written charter shall be legally binding on both the local board of school directors of a school district and the charter school’s board of directors.” The law does not expressly make the charter binding on other school districts that did not participate in the chartering process. Arguably, this statutory enables plaintiffs to challenge the charter as it applies to Adams County students.

      . The American Dictionary of the English Language (Houghton Mifflin Company) defines classroom, “A room in which classes are conducted in a school or college.”

      . A more simplified version reciting four requirements is described in 15 Standard Pennsylvania Practice Injunctions §83:18.


author: BARRASSE, J.,

text:
    Hamby v. Callahan

      C.P. of Lackawanna County,
    no. 99 CV 2146.

      Joseph Lenahan and Anthony Sallavanti, for plaintiff.

      David Saba and Laura Endler, for defendants.
    September 28, 2001
   BARRASSE, J.,

Before the court is the plaintiff’s appeal from the April 12, 2001 order of the special discovery master. Oral arguments were heard on June 25, 2001 and both sides have submitted briefs for their respective positions. This matter is now ripe for disposition.

PROCEDURAL BACKGROUND

On March 2,2001, defendants’ counsel requested that the minor plaintiff, Carey Lynn Hamby, submit to an independent medical examination (IME), performed by Dr. Charles Brill, a pediatric neurologist. Plaintiff’s counsel notified defendants’ counsel on March 15,2001, that Mr. and Mrs. Hamby would not be interviewed by Dr. Brill.

The dispute over the IME was presented to Special Trial Master Richard Campagna on April 9, 2001. Master Campagna issued an order on April 12, 2001, which stated that “a competent adult fully knowledgeable regarding the minor plaintiff shall accompany her to the EME and answer any relevant questions posed by Dr. Brill or his staff.” The plaintiff has filed the instant appeal from Master Campagna’s order.

FACTUAL BACKGROUND

On August 9, 1999, plaintiff commenced this action by filing a complaint alleging negligence in the care and treatment of his minor daughter, Carey Hamby. Plaintiff claims that the defendants’ negligence resulted in bodily injury to his minor daughter.

On June 9, 1997, Carey became ill. Plaintiff’s wife, Dorothy Hamby, called defendant Pediatric Practices. At that time, Dorothy was informed that there were no physicians available for her to speak to, but the nurse informed her that strep throat was “going around.”

On June 11, 1997, Dorothy again called defendant Pediatric Practices and informed them that Carey’s condition was getting worse. An appointment was scheduled for later that day. Defendant Callahan examined Carey and diagnosed a viral infection. Callahan prescribed Tylenol for Carey.

On June 12, 1997, Carey’s condition worsened. Callahan informed Dorothy that Carey may be suffering from meningitis and advised her to administer rectal suppositories to Carey.

On June 13,1997, Carey’s condition deteriorated further. Carey could not walk or talk. Dorothy called defendant Pediatric Practices, they advised her to wait an hour and call an ambulance. On the same day, Carey was taken to Wayne Memorial Hospital where she was diagnosed with spinal meningitis.

Plaintiff claims that Callahan failed to diagnose Carey’s meningitis which led to permanent injuries including brain damage, hearing loss, delay in motor skills, cognitive skills, speech and language, also a distortion in her facial muscles.

STATEMENT OF THE LAW

Standard of Review

Pursuant to the amendments of the Lackawanna County Local Court Rules, discovery matters shall be initially presented to a special discovery master. Lacka. Cty. R.C.P. §4000.1(a). On April 17,2000, Attorney Richard Campagna was appointed special discovery master by order of the court.

An order of the special trial master may be appealed de novo upon a motion to the court. Lacka. Cty. R.C.P. §4000.1(b).

Physical and Mental Examinations of Persons

This is a matter of first impression for this court. The lack of case law regarding this issue requires this court to render a decision based upon statutory interpretation. At issue is Pa.R.C.P. 4010, physical and mental examinations of persons. Specifically subsection (4)(i), which states:

“The person to be examined shall have the right to have counsel or other representation present during the examination. The examiner’s oral interrogation of the person to be examined shall be limited to matters specifically relevant to the scope of the examination.” Pa.R.C.P. 4010(a)(4)(i).

We are guided by several other statutes in interpreting the above-stated rule, specifically 1 Pa.C.S. §§1921 and 1922. Under section 1921, also known as the “plain meaning rule,” when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). Rule 4010 specifically refers to the “person to be examined.” Pa.R.C.P. 4010(a)(3), (a)(4)(i), and (a)(5)(i). The rule does not mention the examination of any other person except that person whose mental or physical condition is in controversy. Pa.R.C.P. 4010(a)(2). Clearly, the plain meaning of the statute allows only for the person whose mental or physical condition is in controversy to be examined.

Our position is bolstered by the legislative amendments to the rule in 1998, which provide additional protections for the person to be examined. Pa.R.C.P. 4010, see explanatory comment. Comment 2 states in part “certain protections for the person being examined . . . include the right to have counsel or another representative present at the examination and a limitation on the examiner’s interrogation of the person to be examined. Pa.R.C.P. 4010, see explanatory comment 2. This is additional evidence of the legislature’s intent. If the legislature intended to allow interrogation of parents or other non-parties, they would have expressed it in the statute and would not have added extra precautions for the persons to be examined. Nor would the legislature have imposed limitations upon the examiner’s oral interrogation of the person to be examined.

The defendants wish to have the minor plaintiff examined by Dr. Charles Brill, a pediatric neurologist, to ascertain the cause and extent of any developmental and/ or neurological disability of the minor plaintiff. As part of that examination, the defendants’ requested that one or both of the minor’s plaintiff’s parents attend the IME to answer any questions that Dr. Brill may impose. The defendants obtained an order from the special discovery master requiring a parent or guardian of the minor plaintiff to attend and answer any questions of Dr. Brill. We find nothing in the statute or in the comments following the rule to support such a contention.

The defendants’ argument is based upon the impairment level of the minor plaintiff and the examiner’s need to render a fair and complete diagnosis. The purpose of Rule 4010 is to allow defendants the opportunity to conduct their own “independent” examination of a plaintiff and provide their own diagnosis. Thus, the term “independent medical examination.” Defendants’ physicians are provided with plaintiff’s medical records and reports as part of the discovery process. Examiners are also allowed the opportunity to review the depositions taken in a particular matter before rendering an opinion. All of which was done in the case sub judice. This court agrees that an IME should be conducted in this case, but only of the minor plaintiff, not also her parents.

Legislative intent has always been favorable to the public interest over any private interest. 1 Pa.C.S. § 1922(5); see also, Lewis v. Pennsylvania Bar Ass ’n, 549 Pa. 471, 701 A.2d 551 (1997); Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 541 Pa. 424, 664 A.2d 84 (1995); Commonwealth ex rel. Shumaker v. New York & Pennsylvania Co., 367 Pa. 40, 79 A.2d 439 (1951); Spigelmire v. North Braddock School District, 352 Pa. 504, 43 A.2d 229 (1945). In accordance with both the Pennsylvania Legislature and courts, this court will not permit a private interest to take preference over the public interest.

The defendants will be able to present to the jury the results of Dr. Brill’s examination and how he reached those results. They will have the ability to compare Dr. Brill’s report to the plaintiff’s expert reports and also the opportunity to contradict plaintiff’s experts. All of which are appropriate for a courtroom not an examination room.

CONCLUSION

Based upon the reasons set forth above, the plaintiff’s appeal of the discovery order of April 12, 2001, of Special Discovery Master Campagna is granted. An order consistent with opinion will follow.

ORDER

And now September 28, 2001, it is hereby ordered and decreed that the plaintiff’s de novo appeal of the special discovery master’s order of April 12, 2001 is granted.

It is further ordered and decreed that the parents of the minor plaintiff are not required to attend the independent medical examination.