text:
    Action Management Inc. v. Gross

      C.P. of Chester County,
    no. 99-00054.

      William A. Walsh, for plaintiff.

      R. Samuel McMichael, for defendants.
    January 12, 2001
   GAVIN,'/.,

BACKGROUND

This is a case under the Motor Vehicle Sales Finance Act, 69 PS. §601 et seq.

On July 20, 1989, defendants purchased a new 1990 Chevrolet from Homer Motors Inc. of Oxford, Chester County, Pennsylvania. The purchase price was financed by Meridian Bank pursuant to an installment sales agreement. See exhibit P-1. Defendants ultimately defaulted, the car was repossessed and sold resulting in a deficiency judgment.

The deficiency judgment was sold to plaintiff who brings the instant matter to collect same.

ISSUES

1. What Statute of Limitations Is Applicable?

Defendants assert that plaintiff’s action is barred by the statute of limitations in that suit was not commenced until January 1999, for a breach that occurred in September 1990. On its face, this argument has appeal as contracts are generally subject to a four-year statute of limitations. 42 Pa.C.S. §5525(7). However, exhibit P-1 bears the word “seal” to the right of both defendants’ signatures. The effect of “seal” either preprinted or handwritten, adjacent to one’s signature has long been resolved. Lorah v. Nissley, 156 Pa. 329, 27 A. 242 (1893). The use of “seal” extends the statute of limitations to 20 years. 42 Pa.C.S. §5529(b)(l). Here, the “preprinted seal” creates a presumption that the defendants intended it as their “seal” extending the statute of limitations to 20 years. While I am certain few people understand this historic anomaly, it is still the law of the Commonwealth. As the defendants offered no evidence to rebut the presumption, plaintiff’s action is timely.

2. Must Plaintiff Be a “Licensed Sales Finance Company” Under the Act To Bring This Lawsuit?

The Act defines “sales finance company” (69 P.S. §603) as follows:

“ ‘Sales finance company’ shall mean a person engaged as principal, agent or broker in the business of financing or soliciting the financing of installment sale contracts made between other parties, including but not thereby limiting the generality of the foregoing, the business of acquiring, investing in or lending money or credit on the security of such contracts or any interest therein whether by discount, purchase or assignment thereof, or otherwise.”

Plaintiff’s representative, Mr. Rex, testified that plaintiff purchases delinquent accounts and thereafter tries to collect them. This testimony was undisputed. As such, plaintiff is not involved, “in the business of financing or soliciting the financing of installment sale contracts made between other parties.” Accordingly, plaintiff need not be licensed under the Act to bring this lawsuit.

3. Notice of Sale

Defendants assert that they were unaware that their vehicle was sold. The Act at section 623.A allows for repossession upon default. Section 623 .D requires written “notice of repossession” by one of several methods including registered or certified mail to the buyer’s last known address. Exhibit P-2 meets the requirements of this section. A comparison of exhibit P-1 and exhibit P-2 shows that exhibit P-2 was sent to the address contained in exhibit P-1, i.e., defendants’ last known address.

Defendants’ counsel argued that there was no proof that defendants got the notice. The easy answer is that the Act doesn’t require proof of receipt, just proof that notice was sent. See Gerety v. Hiller, 349 Pa. 49, 36 A.2d 476 (1944). Therefore this argument fails.

4. The Deficiency Judgment

Meridian Bank sold defendants’ vehicle and provided notice of the claimed deficiency which forms the basis of this complaint. See exhibit P-3.

Defendants assert that the sale was not held in a commercially reasonable manner (see paragraph 13 of new matter) and that they are not liable for the claimed deficiency. This position calls into play the interaction between section 627 of the Act and section 9504 of the Uniform Commercial Code, 13 Pa.C.S. §9504. See Beneficial Consumer Discount Company v. Savoy, 291 Pa. Super. 649, 436 A.2d 687 (1981), affirmed, 503 Pa. 74, 468 A.2d 465 (1983).

Section 627 of the Act allows the buyer, defendants herein, to “have the reasonable valué of the motor vehicle at the time of resale, determined in any action or proceeding brought by the seller or holder to recover the deficiency.” Thus the matter is properly raised here as plaintiff is seeking to recover the deficiency. The Uniform Commercial Code §9504(c) requires that, “every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.”

Exhibit P-2 indicates the car was to be sold at the Manheim auto auction which is a Dealer Only Private Sale. Dealer refers to automobile dealers who obviously are purchasing cars for the purpose of reselling them at a profit. Is such a sale “commercially reasonable” pursuant to the Uniform Commercial Code?

There are few cases addressing this issue which is surprising given the number of repossessions that occur. One case is Continental Bank v. Schaler, 362 Pa. Super. 610, 525 A.2d 388 (1987). There, extensive efforts to sell the vehicle privately were unsuccessful whereupon the car was sold at auction. Debtor’s argument that the car was marketed in a commercially unreasonable manner failed. Here, we have an entirely different situation. Here, only dealers could bid and certainly the bank knew, or should have known, that the dealer bid would be less than the market value of the vehicle. But for this differential there would be no incentive for a dealer to bid. While a “dealer only” auction may be a quick means of reducing the bank’s exposure, it can hardly be said to be “commercially reasonable” in the Absence Of Any Other Effort To Market The Car. Accordingly, I conclude as a matter of law that a sale at a private auction without any prior attempt to sell the vehicle is “commercially unreasonable.” Given this finding, the burden of proof shifted to plaintiff to establish that the value of the car did not equal the indebtedness it secured. Savoy, 503 Pa. at 78, 468 A.2d at 467. As plaintiff failed to offer such evidence, the presumption that the value of the car equaled the indebtedness has not been rebutted and plaintiff’s claim for the deficiency fails.

As the deficiency judgment was invalid, related claims for attorney’s fees, etc. must also fail.

5. New Matter and Counterclaim

Defendants raised several matters by way of new matter and counterclaim. However, they failed to present any evidence to support the matters raised and the claims must fail. See N.T. 9/8/00, p. 46,11. 22-23.

6. Sanctions

This matter is before me on plaintiff’s appeal from an adverse arbitration decision.

Prior to the date scheduled for the hearing before me, plaintiff’s counsel had been advised that defendants’ contested notice as required by the Act and that plaintiff would have to establish same. Plaintiff’s proposed method of doing so was by way of an affidavit of a bank official, which affidavit was objected to on the grounds that defendants would have no one to cross-examine. Despite this notice, plaintiff’s counsel came to the hearing without a live witness to address “notice.” As a result, the matter was continued conditioned upon plaintiff’s paying defendants’ reasonable counsel fees. I subsequently fixed those counsel fees at $300 and to date plaintiff has failed to pay.

Plaintiff’s failure to pay is especially galling in light of the fact that its counsel agreed the fee was reasonable and that the continuance was necessitated by the lack of its witness. I shall resolve this matter in the order that follows.

Based on the foregoing I make the following

CONCLUSIONS OF LAW

(1) Defendants entered into an installment sales contract pursuant to the Motor Vehicle Sales Finance Act.

(2) Defendants defaulted under the terms of the installment sales agreement.

(3) Meridian Bank lawfully repossessed defendants’ vehicle and provided the notices required by the Motor Vehicle Sales Finance Act.

(4) Sale of the vehicle at auction absent any other effort was commercially unreasonable under both the statutory and case law of this Commonwealth.

(5) Plaintiff failed to rebut the presumption that the sales price equaled the indebtedness to the bank.

(6) Defendants failed to establish the matters raised in their new matter and counterclaim.

Based on the foregoing I enter the following

ORDER

And now, January 12, 2001,1 find in favor of defendants and against plaintiff on plaintiff’s complaint and I find in favor of plaintiff and against defendants on defendants’ new matter and counterclaim.

Plaintiff shall have 10 days from the date of this order to pay the attorney’s fees of $300 previously ordered. If payment is not made, plaintiff’s chief operating officer shall appear before the undersigned on February 5, 2001 at 10 a.m. to show cause why plaintiff should not be held in contempt.

Each side to pay its own costs.

      . Selling an asset for less than value is not reasonable absent compelling reasons to do so. No such reasons were offered here.


source: Caselaw Access Project

author: WETTICK JR., J.,

license: Public Domain

text:
    Aronson v. Fax.com Inc.

      C.P. of Allegheny County,
    no. AR00-003023.

      Charles S. Morrow, for plaintiff.

      James R. Schadel and Amy J. Coco, for defendant.
    February 28, 2001
   WETTICK JR., J.,

Defendant’s preliminary objections in the nature of a demurrer seeking dismissal of plaintiff’s complaint are the subject of this opinion and order of court. This case raises an issue that the Pennsylvania courts have not addressed: whether plaintiff may bring a lawsuit in the Pennsylvania state courts under the Federal Telephone Consumer Protection Act of 1991, 47 U.S.C. §227.

Plaintiff alleges that on five occasions between February 23, 2000 and May 9, 2000, he received on his facsimile machine unsolicited advertisements faxed by defendant. Plaintiff has sued under section 227(b)(1)(C) which provides that “[i]t shall be unlawful for any person within the United States ... to use any telephone facsimile machine, computer or other device to send an unsolicited advertisement to a telephone facsimile machine.” 47 U.S.C. §227(b)(l)(C).

The legislation creates a private right of action:

“(3) Private right of action
“A person or entity may, if otherwise permitted by the laws or rules of court of a state, bring in an appropriate court of that state—
“(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
“(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
“(C) both such actions.
“If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than three times the amount available under subparagraph (B) of this paragraph.” 47 U.S.C. §227(b)(3).

Plaintiff has brought this action to recover $2,500 under section 227(b)(3)(B) and to recover three times the amount available under subparagraph (B) pursuant to the final sentence of section 227(b)(3). Defendant’s preliminary objections raise the issue of whether a private right of action under the TCPA may be brought in the Pennsylvania state courts.

Pennsylvania has not enacted any legislation that would expressly authorize the Pennsylvania courts to exercise jurisdiction over the private rights of action provided for in section 227(b)(3) and section 227(c)(5). Defendant contends that unless and until such legislation is enacted, the Pennsylvania state courts may not exercise jurisdiction over a private action under section 227(b)(3) or section 227(c)(5). Defendant relies on the clause permitting a person to bring a private action in an appropriate court of the state “if otherwise permitted by the laws or rules of court of a state.”

Plaintiff contends that federal legislation creates the cause of action. Consequently, as long as the state judicial system includes courts of general jurisdiction, plaintiff may enforce his rights under TCPA in the state courts. This clause, according to plaintiff, allows states to close their courts if they become inundated with TCPA lawsuits. However, it does not require the states to enact legislation to open courts that are already open.

The only legislative history cited by the parties in this case and in opinions of other jurisdictions addressing section 227’s private rights of action is the following statement by Senator Hollings, the sponsor of the bill:

“The substitute bill contains a private right-of-action provision that will make it easier for consumers to recover damages from receiving these computerized calls. The provision would allow consumers to bring an action in state court against any entity that violates the bill. The bill does not, because of constitutional constraints, dictate to the states which court in each state shall be the proper venue for such an action, as this is a matter for state legislators to determine. Nevertheless, it is my hope that states will make it as easy as possible for consumers to bring such actions, preferably in small claims court....
“Small claims court or a similar court would allow the consumer to appear before the court without an attorney. The amount of damages in this legislation is set to be fair to both the consumer and the telemarketer. However, it would defeat the purposes of the bill if the attorneys’ costs to consumers of bringing an action were greater than the potential damages. I thus expect that the states will act reasonably in permitting their citizens to go to court to enforce this bill.” 137 Cong. Rec. S16205-06 (daily ed. Nov. 7, 1991 at 30821-22) (statement of Sen. Hollings).

Also see, International Science & Technology Institute Inc. v. Inacom Communications Inc., 106 F.3d 1146, 1154 (4th Cir. 1997):

“Moreover, the dominant reason that Congress created a private TCPA action at all was out of solicitude for states which were thwarted in their attempts to stop unwanted telemarketing. Congress found in the statute:
“ ‘Over half the states now have statutes restricting various uses of the telephone for marketing, but telemarketers can evade their prohibitions through interstate operations; therefore, federal law is needed to control residential telemarketing practices.’
“Pub.L. no. 102-243 §2(7), 105 Stat. 2394 (1991). See also, Sen. R. no. 102-178 at 3 (1991), reprinted in 1991 U.S.C.C.A.N. at 1970 (‘States do not have jurisdiction over the interstate calls. Many states have expressed a desire for federal legislation to regulate interstate telemarketing calls to supplement their restrictions on intrastate calls’); id. at 5, reprinted in 1991 U.S.C.C.A.N. at 1973 (‘Federal action is necessary because states do not have the jurisdiction to protect their citizens against those who use these machines to place interstate telephone calls’). Thus, although Congress created the private TCPA action, it was from the beginning a cause of action in the states’ interest.”

Under established principles of federal law, state courts have jurisdiction over causes of action created by federal law unless Congress has ousted the states of jurisdiction. These established principles were relied upon in Tafflin v. Levitt, 110 S.Ct. 792 (1990). The issue in that case was whether state courts have concurrent jurisdiction over civil actions brought under the Racketeer Influenced and Corruption Organizations Act. The statute stated that any person injured in his business or property as a result of a violation of section 1692 of RICO may sue in any appropriate United States district court. The United States Supreme Court mled that state courts have concurrent jurisdiction. The majority opinion stated that a grant of jurisdiction to the federal courts does not operate to oust the state courts from concurrent jurisdiction over the cause of action. States possess the same sovereign powers to enforce federal legislation as the federal government, subject only to limitations imposed by Congress pursuant to the Supremacy Clause. Under the system of dual sovereignty, state courts have inherent, authority and are presumptively competent to adjudicate claims arising under the laws of the United States. The presumption that state courts have jurisdiction can be rebutted only by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state court jurisdiction and federal interests.

In a concurring opinion, Mr. Justice Scalia stated that:

“State courts have jurisdiction over federal causes of action not because it is ‘conferred’ upon them by the Congress; nor even because their inherent powers permit them to entertain transitory causes of action arising under the laws of foreign sovereigns; but because ‘[t]he laws of the United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state law are .... The two together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the two jurisdictions are not foreign to each other . . . .’
“It therefore takes an affirmative act of power under the Supremacy Clause to oust the states of jurisdiction— an exercise of what one of our earliest cases referred to as ‘the power of congress to withdraw’ federal claims from state-court jurisdiction.” Id. at 800-801. (citations omitted)

For defendant to prevail, I must read the clause “if otherwise permitted by the laws or rules of court of a state” as an express directive barring state courts of general jurisdiction from entertaining these federal claims until state law explicitly confers jurisdiction on state courts to hear these claims. This clause is not an express directive ousting the states of jurisdiction because Congress did not clearly say that a state cannot exercise jurisdiction unless it explicitly agrees to hear private actions brought under the TCPA.

Under the statutory scheme of TCPA, exclusive jurisdiction is conferred on the federal courts over actions brought by state attorneys general to obtain injunctive relief and to recover monetary damages. 47 U.S. §227(f)(2). Exclusive jurisdiction is conferred on the state courts over actions brought by private persons to obtain injunctive relief and to recover monetary damages. 47 U.S. §227(b)(3) and §227(c)(5). Congress’ statements that (1) the United States district courts shall have exclusive jurisdiction over all civil actions brought by the attorneys general of the states and (2) private rights of action, if otherwise permitted by the laws or rules of court of a state, shall be brought in an appropriate court of the state, was its way of conferring exclusive jurisdiction in the state courts to hear private actions. In other words, Congress was not removing state court jurisdiction to hear private actions that would otherwise be conferred under the principles governing Tafflin v. Levitt. It was removing the jurisdiction of the federal courts over actions brought by private persons or entities.

Upon passage of the TCPA, the laws and rules of court of Pennsylvania permitted a private person to sue in the state courts to enforce the private right of action ereated by this federal law. There is no apparent reason why Congress would have created a statutory scheme in which it looked exclusively to the state courts to enforce private actions and in which it, at the same time, removed the jurisdiction to enforce private actions of those state courts which already had jurisdiction to hear these cases. Congress enacted the TCPA to supplement state efforts to control residential telemarketing practice. State courts’ exercise of jurisdiction over federal private causes of action is not viewed as an imposition on the states; it is, instead, the exercise of a sovereign power. State courts hear federal private causes of action unless they are ousted because the states want their citizens to be able to enforce their federal rights of action in their own state courts.

If the TCPA had stated that a person who received an unsolicited advertisement via a facsimile machine in violation of the TCPA may bring a private action in any federal district court or in an appropriate court of a state, if otherwise permitted by the laws or rules of court of the state, I suggest that no one would be contending that this legislation required state recognition of the cause of action before state courts could exercise jurisdiction. It would, instead, be read as authorizing states to exercise concurrent jurisdiction where there is a forum to resolve such claims under the laws and rules of court of the state. There is no justification for construing the legislation in a different fashion because Congress did not confer jurisdiction on the federal courts to hear private actions.

Ordinarily, except where jurisdiction has been conferred exclusively on the federal courts, state courts with general jurisdiction are required to exercise jurisdiction over private federal actions. The congressional findings in the TCPA included a finding that 18 million telemarketing calls are made each day. The apparent purposes for the clause “if otherwise permitted by the laws or rules of court of a state” were: (1) to permit a state to opt out if its court system became overburdened (without an opt out, under the Supremacy Clause the state courts would have been required to hear TCPA actions even if its court system was becoming overburdened — see International Science & Technology Institute Inc. v. Inacom Communications Inc., supra, 106 F.3d at 1157); and (2) to permit a state court to use small claims courts rather than its courts of general jurisdiction for TCPA private actions (see statement of Senator Hollings at p. 4 of this opinion).

My reading of section 227(b)(3) and section 227(c)(5) as giving the states the ability to opt out rather than as removing jurisdiction from state courts that would otherwise exercise jurisdiction over TCPA private actions is consistent with the Federal Communications Commission’s interpretation of section 227(b)(3) and section 227(c)(5):

“Absent state law to the contrary, consumers may immediately file suit in state court if a caller violates the TCPA’s prohibitions on the use of automatic telephone dialing systems and artificial or prerecorded voice messages. Section 227(b)(3). A consumer may also file suit in state court if he or she has received more than one telephone call within any 12-month period by or on behalf of the same company in violation of the guidelines for making telephone solicitations. Section 227(c)(5).” Report and order, 7 F.C.C.R. 8752 §55 (Sept. 17, 1992).

My reading is also consistent with statements in federal opinions construing section 227(b)(3) and section 227(c)(5). Five circuit courts have addressed the issue of whether private actions must be resolved in the state courts or whether the federal courts also have concurrent jurisdiction. The issue arose because in each case the defendant challenged the jurisdiction of the federal district court to hear a private action which the plaintiff had filed in the federal district court.

The opinion of the first court that addressed this issue (International Science and Technology Institute Inc. v. Inacom Communications Inc., supra) contains the most extensive discussion of the legislative scheme of the TCPA. The court held that Congress had not conferred jurisdiction on the federal courts over private actions. It construed the TCPA in this fashion because: (1) while state courts are presumed to have jurisdiction over federally-created causes of action unless Congress indicates otherwise, federal courts require a specific grant of jurisdiction, (2) in the TCPA, Congress included explicit provisions for federal actions by state attorneys general and for state actions by private individuals, (3) the legislative history (referring to the statement of Senator Hollings at p. 425 of this opinion) supports the interpretation that Congress intended for private actions to be resolved in state courts, and (4) the dominant reason that Congress created this private action was to further state interests. 106 F.3d at 1152-54 (see pp. 425-26 of this opinion).

The court also addressed an equal protection challenge to the TCPA. According to the plaintiff, the clause “if otherwise permitted by the laws or rules of a court of that state” allows a private cause of action only where state law duplicates the TCPA’s substantive prohibitions. The plaintiff argued that where a state has not duplicated federal law, the citizens of that state would not have the benefit of the federal right whereas citizens of other states would. The court’s response rejected this reading of the TCPA.

“We believe that this argument is based on a misconstruction of the nature of the federal right. The clause in 47 U.S. §227(b)(3) ‘if otherwise permitted by the laws or rules of court of a state’ does not condition the substantive right to be free from unsolicited faxes on state approval. Indeed, that substantive right is enforceable by state attorneys general or the Federal Communications Commission irrespective of the availability of a private action in state court. Rather, the clause recognizes that states may refuse to exercise the jurisdiction authorized by the statute. Thus, a state could decide to prevent its courts from hearing private actions to enforce the TCPA’s substantive rights. To that extent, the existence of a private right of action under the TCPA could vary from state to state. That inequality, however, touches only a statutory permission to enforce privately the same substantive rights which both the state and the federal government can enforce in federal court through other mechanisms.” Id. at 1156. (emphasis added)

The court concluded that the provision permitting state courts to opt out was rationally related to a legitimate governmental interest:

“Similarly concerned over the potential impact of private actions on the administration of state courts, Congress included a provision to allow the states to prohibit private TCPA actions in their courts. We have no doubt that Congress has a legitimate interest in not overburdening state and federal courts. Nor can it be doubted that Congress has a legitimate interest in respecting the states’ judgments about when their courts are overburdened. With those interests in mind and recognizing that other enforcement mechanisms are available in the TCPA, we believe Congress acted rationally in both closing federal courts and allowing states to close theirs to the millions of private actions that could be filed if only a small portion of each year’s 6.57 billion telemarketing transmissions were illegal under the TCPA.” Id. at 1157. (emphasis added)

The court also addressed the plaintiff’s argument that interpreting the TCPA as providing for exclusive state jurisdiction would interfere with the Tenth Amendment which does not permit Congress to impermissibly commandeer state courts:

“While we agree that we must be sensitive to any effort by Congress to commandeer state resources, we conclude that, in enacting the TCPA, Congress went out of its way to avoid overstepping the limits of the Tenth Amendment by explicitly recognizing a states’ power to reject enforcement in their courts of the federally created right.” Id. (citations omitted)

Each of the subsequent circuit court opinions reached the same result; the courts’ opinions relied heavily on International Science. Two of the opinions adopted International Science’s interpretation of the TCPA as permitting the states to close their courts: Murphey v. Lanier, 204 F.3d 911 (9th Cir. 2000); Foxhall Realty Law Offices Inc. v. Telecommunications Premium Services Ltd., 156 F.3d 432 (2d Cir. 1998). The other three opinions did not address this issue: Erienet Inc. v. Velocity Net Inc., 156 F.3d 513 (3d Cir. 1998); Nicholson v. Hooters of Augusta Inc., 136 F.3d 1287, as modified, 140 F.3d 898 (11th Cir. 1998); and Chair King Inc. v. Houston Cellular Corp., 131 F.3d 507 (5th Cir. 1997).

I now discuss the decisions of the appellate state courts which have considered whether a suit may be brought in state court for violations of the TCPA in the absence of specific state legislation permitting such suits. One case construes the TCPA in the manner that defendant proposes: Autoflex Leasing Inc. v. Manufacturers Auto Leasing Inc., 16 S.W.3d 815 (Tex. App. 2000). The remaining cases construe the TCPA in the manner that plaintiff proposes: Hooters of Augusta Inc. v. Nicholson, 245 Ga. App. 363 (2000); Zelma v. Total Remodeling Inc., 756 A.2d 1091 (N.J. Super. Law Div. 2000); Schulman v. Chase Manhattan Bank, 710 N.Y.S.2d 368 (N.Y. App. Div. 2000); and Kaplan v. First City Mortgage, 701 N.Y.S.2d 859 (City Court, City of Rochester 1999).

In Autoflex, supra, the court ruled that the plain meaning of the phrase “if otherwise permitted by the laws or rules of court of a state” is that suit may be brought only if the state has enacted legislation or promulgated court rules consenting to state court actions based on the TCPA. The court stated that this construction was consistent with the comments of the TCPA’s author, Senator Hollings, when he introduced the statute in Congress. The court cited the following sentence from the statement set forth at p. 425 of this opinion: “ T thus expect that the states will act reasonably in permitting their citizens to go to court to enforce this bill.’ ” 16 S.W.3d at 817 n.14.

In Hooters of Augusta Inc. v. Nicholson, supra, 245 Ga. App. 363, the Court of Appeals of Georgia adopted the construction of the clause “if otherwise permitted by the laws or rules of court of a state” as meaning that state courts may automatically hear TCPA actions unless the state opts out by enacting a law prohibiting such private actions in its courts. The court found to be persuasive the explanation of this clause in International Science as giving states the power to reject congressional authorization of private enforcement. The court said that this was legislation intended to benefit the citizens of Georgia, and it saw no reason to construe the TCPA in a manner which would leave its citizens without a remedy.

In Zelma v. Total Remodeling Inc., supra, the New Jersey Superior Court found the commonsense meaning of the language “ ‘if otherwise permitted by the laws or rules of court of a state’ manifests a congressional intent that does not condition state court jurisdiction over private enforcement of TCPA claims on an affirmative legislative act creating such jurisdiction, where the state already has the ability to hear such cases.” 756 A.2d at 1093. Since the Superior Courts of New Jersey are already vested by Article 6, Section 3, paragraph 2, of the New Jersey Constitution with the jurisdiction to hear these cases, no special legislation is required to enable them to do so. Id.

In Schulman, supra, the Supreme Court of New York, Appellate Division, rejected the defendant’s argument that a private right of action under the TCPA in state court was conditioned on the existence of state statutory or regulatory authority permitting such a private action because such an interpretation of the clause “if otherwise permitted by the laws or rules of court of a state” is inconsistent with established principles governing state court jurisdiction over claims based on federal laws. 710 N.Y.S.2d at 371. The court relied on the principle that state courts are courts of general jurisdiction that are presumed to have jurisdiction over federally-created causes of action unless Congress dictates otherwise. The court stated that a state court may not refuse jurisdiction over a claim based on federal law if there exists a court of competent jurisdiction to hear the claim:

“We therefore conclude that the phrase, ‘if otherwise permitted by the laws or rules of court of a state’ merely acknowledges the principle that states have the right to structure their own court systems and that state courts are not obligated to change their procedural rules to accommodate TCPA claims. In the case at bar, Chase has not asserted the existence of any procedural rules which would prevent the Supreme Court from exercising jurisdiction over the plaintiff’s claim. Furthermore, the state courts’ ordinary jurisdiction includes claims for damages arising under a similar state law directed at telemarketing abuses, General Business Law §399-p.” Id. at 372.

ORDER

On February 28, 2001, upon consideration of defendant’s preliminary objections, it is ordered that:

(1) plaintiff’s claims based on the Pennsylvania Unfair Trade Practices and Consumer Protection Law are dismissed;
(2) defendant’s preliminary objections seeking dismissal of plaintiff’s claims under the Federal Telephone Consumer Protection Act are overruled; and
(3) arbitration hearing is rescheduled to April 25, 2001 at 9 a.m. o’clock.

      . The case law that I will be discussing involves either a violation of 47 U.S.C. §227(b)(l)(C) which bars the sending of an unsolicited advertisement to a telephone facsimile machine or a violation of 47 U.S.C. §227(b)(l)(B) which prohibits a person from initiating any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the express consent of the called party. Where section 227(b)(1)(B) is violated, TCPA also creates a private cause of action to recover actual monetary loss for such a violation or to receive $500 in damages for each such violation, whichever is greater, “if otherwise permitted by the laws or rules of court of a state.” 42 U.S.C. §227(c)(5).

      . Plaintiff also sued under the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq. I am dismissing claims based on this legislation because it permits private actions to be brought only by a person who purchases or leases goods or services. See 73 P.S. §201-9.2.

      . Article 5, Section 5(b) of the Pennsylvania Constitution provides that the common pleas courts shall have unlimited jurisdiction in all cases “except as may otherwise be provided by law.”

      . The reference to rules of court (“if otherwise permitted by the laws or rules of court of a state”) supports this reading of section 227(b)(3) and section 227(c)(5).


author: HOOVER, J.,

text:
    Wisniski v. Brown & Brown Ins. Co. of PA Inc.

      C.P. of Dauphin County,
    no. 2320-S-2000.

      David B. Dowling, for plaintiffs.

      James K. Thomas, for defendants Brown & Brown Ins. Co. and Blood.

      Anthony R. Sherr, for defendants EMC Insurance and Ahlstrom.
    February 13, 2001
   HOOVER, J.,

This matter comes before the court on the preliminary objections of defendants EMC Insurance Companies and Scott W. Ahlstrom to plaintiffs’ complaint. For the reasons set forth herein, defendants’ preliminary objections are overruled.

Plaintiffs Mark and Elizabeth Wisniski t/d/b/a Saturn Surplus allege that they are engaged in the business of selling, inter alia, military surplus supplies and equipment. Plaintiffs allege that the defendant EMC Insurance Companies sold insurance policies through an agency known as the Brown Agency. Plaintiffs further allege that the defendant Scott W. Ahlstrom was employed by, and served as the agent of defendant EMC. As the factual basis of their allegations as to all defendants, including EMC and Ahlstrom, plaintiffs allege that they purchased real estate, including a building to serve as a warehouse, for their business. Plaintiffs allege that a stream flowed beneath their property. They allege that in conjunction with the purchase of the real estate, they inquired about a commercial business protection policy with defendants Brown Agency, with whom they allegedly had a pre-existing business relationship. Plaintiffs allege that they apprised agents of Brown Agency, defendants Blood and/or Rineer that they wanted “complete protection” for their newly acquired property. (Plaintiffs’ complaint, ¶9.) They further assert that they relied upon the expertise of Brown Agency and its employees to recommend “appropriate types and levels of coverage.” (Plaintiffs’ complaint, ¶10.) Plaintiffs contend that defendants Blood and Rineer requested information about the building, and recommended commercial property and liability coverage, but did not inspect the property before selling plaintiffs a policy placed with EMC. Plaintiffs’ claim that “unbeknownst to [them] the policy sold to plaintiffs contained an exclusion for property damage caused by, inter alia, flood, surface water, and/or the overflow of any body of water. (Plaintiffs’ complaint, ¶15.) Plaintiffs contend that at no time did anyone from the Brown Agency advise of the exclusion, or recommend separate flood coverage. Plaintiffs renewed the policy from 1994 through 1998.

Plaintiffs contend that in 1996, defendant Ahlstrom inspected plaintiffs’ property and performed a risk analysis, but failed to inform plaintiffs that they had no coverage for flood damage, or as to the availability of flood coverage at an additional premium.

On September 7, 1999, plaintiffs suffered flood damage to their building and its contents when the stream traversing the property overflowed its banks. Plaintiffs were advised by defendant Brown Agency that they had no coverage for the flood damage.

Plaintiffs assert that all of the defendants breached a duty to “exercise the skill and knowledge normally possessed by members of the insurance profession in good standing in similar communities.” Plaintiffs’ complaint details the manner in which defendants allegedly breached their duty, consisting generally of alleged failures to properly investigate, inspect, inform and recommend, in relation to flood insurance.

Defendants EMC and Ahlstrom filed preliminary objections in the nature of a demurrer asserting that the complaint fails to state a cognizable cause of action in that EMC and Ahlstrom had no legal duty to explain to plaintiffs the extent and limits of coverage, or to anticipate and counsel their insured on the consequences of coverage chosen by the insured. Plaintiffs argue that defendants misinterpret the nature of duty alleged, and that correctly reading the allegations in the complaint, defendants owed a duty to plaintiffs to properly execute their duty to “recommend adequate and appropriate types and levels of insurance coverage.” (Plaintiffs’ complaint, ¶30.)

We view the fundamental issue presented as whether, based upon the facts alleged herein, under Pennsylvania law, a duty existed on behalf of EMC and Ahlstrom to recommend “adequate and appropriate levels of insurance coverage.” We do not view the claim as narrow as framed by defendants, and therefore, applying the standard applicable to review of preliminary objections, cannot state with certainty that no recovery is possible. Dercoli v. Pennsylvania National Mutual Insurance Company, 520 Pa. 471, 554 A.2d 906 (1989). Accepting as true all well-pleaded material facts and reasonable inferences deducible from those facts, we must determine whether the pleader has failed to state a claim for which relief may be granted, and in so doing, resolve all doubts in favor of the pleader. See Ward v. Serfas, 387 Pa. Super. 425, 564 A.2d 251 (1989). We find that taken as a whole, at this early stage of the proceedings, plaintiffs’ complaint states a colorable claim of duty against EMC and Ahlstrom based upon an allegedly improperly performed risk analysis with respect to plaintiffs’ insurance coverage.

It is generally true that an insurer is not bound to disclose all possible information as to the benefits of coverage that is not provided. Miller v. Keystone Ins. Co., 402 Pa. Super. 213, 586 A.2d 936 (1991). Defendants suggest, and argue, that the gravamen alleged is failure to inform plaintiffs that they had no insurance for flood damage. Were that the extent of the allegations, defendants may well be correct. However, we see the facts alleged as more closely aligned with those in Dercoli than with the cases cited by defendants. Kilmore v. Erie Insurance Company, 407 Pa. Super. 245, 595 A.2d 623 (1991) and Treski v. Kemper National Insurance Companies, 449 Pa. Super. 620, 674 A.2d 1106 (1996). In Dercoli, the Supreme Court found that the insurer had a duty of full and complete disclosure of all the benefits and every coverage provided where the insured was relying upon the insurer for advise and counsel. We view the “risk analysis” performed by EMC’s agent, Ahlstrom, as a similar undertaking to provide advice and counsel, which imposes a duty to disclose, and a duty of reasonable care in the performance of that risk analysis.

Further, while we find no appellate cases on the issue, we note that two common pleas courts have relied upon the Restatement (Second) of Torts §299A to recognize a duty owed by an insurance agent to the insured to exercise reasonable care where the agent undertakes to render services in the practice of the trade or profession. Plaintiffs claim a breach of this duty in, inter alia, the investigation of plaintiffs’ coverage needs, including the risk analysis.

Accordingly, for the foregoing reasons, we enter the following:

ORDER

And now, February 13, 2001, the preliminary objections of defendants EMC Insurance Companies and Scott W. Ahlstrom are hereby overruled.

      . Defendants Brown & Brown Ins. Co. of PA, Donald Blood and Will Rineer have not filed preliminary'objections and therefore we do not address whether claims against them are cognizable.


author: BRADLEY,

text:
    Duncan v. Mercy Catholic Medical Center

      C.P. of Delaware County,
    no. 98-52559.

      John E. Savoth, for plaintiffs.

      Christine McCafferty, for defendant.
    March 20, 2001
   BRADLEY,

Plaintiffs, Lori and Greg Duncan, appeal from the denial of their motion for post-trial relief following a jury trial in this medical malpractice action.

This matter arises from an incident which occurred on October 23, 1996 at defendant’s hospital, Mercy Catholic Medical Center. On that date, plaintiff Lori Duncan was admitted to the hospital to deliver twins. A nurse employed by the hospital attempted to start an intravenous (IV) in Mrs. Duncan’s right wrist. She made two unsuccessful attempts to enter a vein, stopping when plaintiff complained of intense pain radiating up her forearm and down into her right hand. An IV was finally established by another nurse in plaintiff’s left hand. Neither this series of events nor any complaints by Mrs. Duncan of pain were documented in the hospital records.

Mrs. Duncan contends that the actions of the nurse in attempting to insert the IV deviated from the standard of care for such a procedure and resulted in permanent injury to her right hand. Additionally, plaintiff was injured in September 1999 when a glass dish slipped out of her weakened right hand while she was washing it, resulting in a significant laceration of her left wrist. This incident required emergency surgery and a follow-up surgical procedure on her left hand. Plaintiff contends this subsequent injury further magnified her already disabled status.

A jury trial was held in this matter from September 18, 2000 through September 20, 2000. At trial, plaintiff testified to the severe functional limitations her injury imposed. She could not hold or carry things, and she could not hold baby bottles to feed her infant twins. (N.T. 9/18/2000, pp. 113-14.) Indeed, she testified that when she sustained the laceration to her left hand, she alerted her neighbor by kicking the neighbor’s door because she couldn’t grip the door handle with her right hand. (N.T. 9/18/2000, pp. 116-17.) Two doctors offered expert testimony on her behalf. A vocational rehabilitation specialist, Dr. Jasen Walker offered his opinion that Mrs. Duncan was totally disabled as a result of her hand injury. (N.T. 9/19/2000, p. 56.)

Defendant MCMC vigorously contested liability. MCMC claimed that the sole cause of plaintiff’s injuries was pre-existing carpal tunnel syndrome resulting from her job as a claims processor. MCMC also claimed that there is no objective evidence of injury or of plaintiff’s complaints of continuing pain. Finally, MCMC asserted that if there was injury to the radial nerve by the nurse inserting the IV, that fact alone is not conclusive of negligence and moreover, that type of injury would not result in the symptoms plaintiff was experiencing.

The jury returned a verdict in favor of defendant. A motion for post-trial relief was filed challenging as error the court’s decision allowing defendant to cross-examine Mrs. Duncan on her observations of a surveillance video. The motion was denied. This appeal followed.

The sole issue presented is whether the court committed an error of law and/or abuse of discretion in permitting defendant to cross-examine plaintiff on her observations of a surveillance video which was not shown to the jury.

In defendant’s case in chief, defense counsel sought to introduce a surveillance videotape showing plaintiff engaged in various activities, such as opening a car door, carrying her child, etc. Defendant did not conduct this surveillance. Rather, the videotape was obtained by defense subpoena from Mrs. Duncan’s former employer, Principal Financial Group.

The first time counsel for defendant revealed the existence of the videotape to counsel for plaintiffs was at the start of defendant’s case in chief. Plaintiffs’ counsel requested that he be permitted to view the videotape out of the presence of the jury to determine if an objection was warranted. The tape was shown in open court with the jury not present. After viewing the videotape, plaintiffs’ counsel objected to its admission on the basis that its existence had not been disclosed during discovery. Plaintiffs pointed out no. 7 of plaintiffs’ request for production of documents (first) specifically requested the following:

“(7) Any and all written and/or videotaped and/or audiotaped and/or electronic and/or the result of any other technique of surveillance memorializations of conduct and/or conversations between plaintiff or anyone acting on plaintiff’s behalf and the defendant or concerning in any way this action or its subject matter, except for such written and/or videotaped and/or audiotaped and/or electronic and/or the result of any other technique of surveillance memorializations not discoverable under Pa.R.C.P. 4003.3.
“This request is deemed to be continued insofar as if any of the above is secured subsequent to the date herein for the production of same, said documents, photographs, statements, reports, etc. are to be provided to defense counsel within 30 days of receipt of same.”

In response to this request, defendant responded “none.” See defendant’s responses to plaintiffs’ first request for production of documents. Defendant never supplemented this response.

The court entertained argument on this issue. Defendant asserted that they were under no obligation to reveal either the tape’s existence or their intent to use it, because they did not make the videotape, they only received it pursuant to a subpoena which power plaintiffs could have availed themselves of, and, finally, because the fact an activities check was conducted was made known to plaintiff’s own doctor, Dr. Guy Nardella. Reasoning that it was immaterial who made the videotape or how defendant obtained it, the court found defendant had a continuing obligation to disclose it pursuant to plaintiffs’ aforementioned discovery request. (N.T. 9/19/2000, p. 103.) Plaintiffs’ objection to the jury viewing the videotape was sustained. (N.T. 9/19/2000, p. 105.)

Immediately after the ruling, defendant called Mrs. Duncan to the stand as an adverse witness. She was questioned about the many activities she performed on the videotape. (N.T. 9/19/2000, pp. 111-15.) This was an obvious attempt to impeach her credibility on the issue of the functional limitations the alleged hand injury produced. She acknowledged that on the videotape she was performing certain activities with her hands. (N.T. 9/19/2000, pp. 111-15.) She had previously testified on direct that she was unable to perform many of these same activities. (N.T. 9/19/2000, pp. 113-14.) Plaintiffs objected to this entire line of questioning characterizing it as an “end run” around the exclusion of the videotape. Nonetheless, the court permitted defendant to cross-examine plaintiff on specific activities she performed on the videotape. It is this ruling which plaintiffs contend is an error of law or abuse of discretion which mandates a new trial.

It is very clear that under the recent case of Dominick v. Hanson, 753 A.2d 824 (Pa. Super. 2000), defendant was obligated to turn over the surveillance videotape in discovery. Failure to do so resulted in the sanction of preclusion. However, the court is also aware of the competing policy concerns as set forth in Poleri v. Salkind, 453 Pa. Super. 159, 683 A.2d 649 (1996). The court notes that the purpose of discovery rules is to prevent surprise and unfairness and allow a fair trial on the merits. In the instant case, the reference to the videotape was found in plaintiff’s own treating doctor’s file, therefore, she could not claim surprise at its very existence.

To accommodate the competing concerns of compliance with discovery rules and at the same time conducting a fair trial on the merits, the videotape was not shown to the jury, but defendant was permitted to cross-examine plaintiff as to specific activities she was filmed doing. This was clearly in the nature of rebuttal testimony since defendant sought to rebut plaintiff’s direct testimony of severe functional limitations stemming from the alleged malpractice. Plaintiff was not prejudiced by this cross-examination because she could not claim surprise as reference to the videotape was found in her own doctor’s files and because she was aware through prior cross-examination of her experts and the report of defendant’s expert, Dr. Richard Bennett, that defendant was asserting that plaintiff’s complaints and subjective motor deficits were exaggerated and simply not credible. It is axiomatic that the Rules of Civil Procedure must first be construed “to secure a just determination of the action[: tjhis will more likely be achieved by receiving relevant evidence than by excluding it.” Clark v. Hoerner, 362 Pa. Super. 588, 599, 525 A.2d 377, 382 (1987).

It is for the above reasons the court denied plaintiffs’ motion for a new trial on the sole issue whether it was an of error of law or abuse of discretion to allow cross-examination of the plaintiff about the activities she performed on the videotape.


author: PRATT, P.J.,

text:
    Mansour v. Linganna
    C.P. of Lawrence County,
    no. 11007 of 1996, C.A.

      Carmen F. Lamancusa, for the plaintiffs.

      Leo M. Stepanian II, for the defendant.
    May 4, 2001
   PRATT, P.J.,

The plaintiffs’ negligence cause of action for personal injuries, after an automobile collision, was tried before a jury, which found defendant liable to plaintiffs and awarded damages in the amount of $70,000. Defendant timely filed a motion for post-trial relief, requesting a new trial based on several assignments of error. On December 8, 2000, the court entered an order denying defendant’s motion, from which defendant filed his notice of appeal and statement of matters complained of on appeal. This opinion is rendered in satisfaction of Pa.R.A.P. 1925(a).

Before addressing each objection of defendant in his motion for post-trial relief, the court recalls the general rule regarding granting a new trial, i.e., a new trial should be granted only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. Craft v. Hetherly, 700 A.2d 520 (Pa. Super. 1997). The trial court may also award a new trial upon concluding that a factual or legal mistake was made at the trial level and that, on consideration of the particular circumstances of the case, the mistake formed “sufficient basis” to order a new trial. Riccio v. American Republic Insurance Co., 550 Pa. 254, 262, 705 A.2d 422, 425 (1997). The court will now consider each contention set forth in defendant’s request for a new trial.

I.

Defendant initially claims it was error for the court, during jury selection, to allow the potential jurors in this case to be asked the following voir dire question:

“How many of you have heard of the ‘McDonald’s Verdict’ and feel it was ridiculous or that something was wrong with the court system or that we need to do something to prevent verdicts like that in the future?” Notes of Testimony March 6, 2000, p. 75.

Defendant timely objected to this question, claiming that it tainted the jury with a bias toward plaintiffs; was prejudicial to defendant; and that the McDonald’s case is contrary to Pennsylvania law, because it was not decided in Pennsylvania. Allowing this voir dire question, according to defendant, is reversible error, because it permitted the jury to equate the defendant in the instant matter to the wealthy defendant in the McDonald’s case and led the jury to consider the defendant’s wealth in the instant case in arriving at its verdict. Defendant also argues that the question improperly requested the potential jurors to express their opinion concerning a hypothetical set of facts that existed in the McDonald’s case. The court disagrees.

The trial court is given broad discretion in determining the scope, manner and procedure of the voir dire examination. Starr v. Allegheny General Hospital, 305 Pa. Super. 215, 220, 451 A.2d 499, 501 (1982). The purpose of voir dire is to ensure the empaneling of a competent, fair, impartial and unprejudicial jury. Id. “The preferred practice during voir dire examination is to permit general inquiries regarding the direct or indirect interest of the jurors in the parties to, and the result of, the litigation.” Bohner v. Stine, 316 Pa. Super. 426, 435, 463 A.2d 438, 448 (1983).

The court finds no indication, in this case, that the voir dire question regarding the McDonald’s case caused any prejudice toward defendant or tainted the minds of the potential jurors in a way that would cause them to equate the wealth of the defendant in his case to the wealth of the defendant in the McDonald’s case. Furthermore, the court does not find that the subject voir dire question caused the jurors to express their opinion concerning a hypothetical set of facts that existed in the McDonald’s case. The court finds that the question was merely a general inquiry to see if the prospective jurors had any direct or indirect interests in the outcome of the lawsuit.

n.

Defendant also objected to a statement made by plaintiffs’ counsel during closing arguments in which the McDonald’s case was again mentioned. During closing arguments, plaintiffs’ counsel, stated, at least twice, that “this is not a frivolous lawsuit.” N.T., March 10, 2000, pp. 132 and 149. On one occasion, counsel for plaintiffs stated:

“One of the questions I asked all of you was this. When I came into this courtroom, I said the question was asked about — I think it was — I don’t know if I misstated it. I apologize to all of you. I think one of the questions was about the McDonald’s case and how people felt about it with the hot coffee spill and everything else. This is not a frivolous lawsuit. This is not a frivolous accident. . . .” N.T., March 10, 2000, pp. 148-49.

Defendant contends that these statements, in closing argument, tainted the jury with a bias toward plaintiffs and were prejudicial to defendant. Defendant argues that these statements suggested to the jury that their verdict should be in a significant amount, reasoning that, because the McDonald’s case was a multi-million dollar award, many people considered it to be a frivolous lawsuit; therefore, if the jury believes the instant case is not frivolous, they could assume that their verdict should be larger than that given in the McDonald’s case.

The presentation of closing arguments and the decision to declare a mistrial based on objections thereto is within the discretion of the trial court, “whose vantage point enables it to evaluate the climate of the courtroom and the effect on the jury of closing arguments.” Clark v. Philadelphia College of Osteopathic Medicine, 693 A.2d 202, 206 (Pa. Super. 1997). “Furthermore, a new trial is not required where the remarks made by counsel were neither inflammatory nor prejudicial.” Alexander v. Carlisle Corp., 449 Pa. Super. 416, 422, 674 A.2d 268, 271 (1996).

In this case, the court finds that plaintiffs’ counsel’s statements in closing arguments did not taint the jury’s view nor did they prejudice the defendant. Notwithstanding, the meaning and purpose of plaintiffs’ counsel’s closing statements regarding the McDonald’s case were perplexing and difficult to grasp. Defendant’s interpretation of the statement is tenuous, at best. The court cannot conclude that the jury would reasonably be led to believe, based on the above quoted closing statements by plaintiffs’ counsel, that the verdict in this case should be larger than the multi-million dollar verdict in the McDonald’s case. As plaintiffs’ counsel’s closing argument was neither inflammatory nor prejudicial, a new trial is not warranted on this basis.

in.

Defendant next claims it was error for the court to permit plaintiffs to recall their expert medical witness, Dr. Robert Gilliland, by telephone deposition during trial for the purpose of establishing plaintiffs’ future medical expenses relative to his prescriptions for Oxycontin, a medication prescribed for pain management. Defendant claims that permitting the recall of Dr. Gilliland for the limited purpose of establishing plaintiffs’ future need and use of medication for pain management was prejudicial to defendant, because defendant did not and could not have any opportunity to obtain rebuttal evidence without delaying the trial for an extended period of time.

Furthermore, defendant claims that the necessity and reasonableness of prescribing Oxycontin was not asked at the deposition of Dr. Gilliland and, therefore, defendant had no need to seek rebuttal testimony addressing the issue. According to defendant, permitting plaintiffs to take the deposition of Dr. Gilliland during the course of the trial amounted to unfair surprise and prejudice. The court disagrees.

Defendant’s argument regarding Dr. Gilliland’s testimony by telephone deposition at trial is, in essence, based on what is known as the “fair scope rule.” As explained by the Superior Court:

“The ‘fair scope rule,’ . . . derives from our Rules of Civil Procedure governing discovery. Rule 4003.5 provides that a party may, during discovery, require his adversary ‘to state the substance of the facts and opinions to which [his or her] expert is expected to testify and a summary of the grounds for each opinion.’ Pa.R.C.P. 4003.5(a)(1)(b). The purpose of this provision is ‘to avoid unfair surprise by enabling the adversary to prepare a response to the expert testimony.’ ” Feden v. Consolidated Rail Corp., 746 A.2d 1158, 1161 (Pa. Super. 2000), citing Tiburzio-Kelly v. Montgomery, 452 Pa. Super. 158, 173, 681 A.2d 757, 764 (1996).

The Superior Court has also noted that: “[t]he experience of this court. . . has been that it is impossible to formulate a hard and fast rule for determining when a particular expert’s testimony exceeds the fair scope of his or her pretrial report. Rather, the determination must be made with reference to the particular facts and circumstances of each case. The controlling principle which must guide is whether the purpose of Rule 4003.5 is being served. The purpose of requiring a party to disclose, at his adversary’s request, ‘the substance of the facts and opinions to which the expert is expected to testify’ is to avoid unfair surprise by enabling the adversary to prepare a response to the expert testimony.” Wilkes-Barre Iron & Wire Works Inc. v. Pargas of Wilkes-Barre Inc., 348 Pa. Super. 285, 290, 602 A.2d 210, 212 (1985).

Based on these cited authorities, the court must look to the facts and circumstances of the instant case to determine whether defendant was unfairly surprised by the introduction at trial of Dr. Gilliland’s testimony regarding the necessity and reasonableness of plaintiff Haisam Mansour’s Oxycontin prescription.

On the fourth day of the jury trial, counsel for plaintiffs asked to recall Dr. Gilliland by telephonic deposition as a means to introduce the testimony that would be related to the testimony expected to be offered by plaintiff Nahla Mansour in regard to purchase of the medication, Oxycontin, for plaintiff Haisam Mansour. During an in camera colloquy, counsel for plaintiffs made the following offer of proof:

“Mr. Lamancusa: I’m only going to ask several questions here. The questions are going to be, number one, is he receiving — is he receiving any medication, Doctor. His answer will probably be yes to that. And what is the type of medication? I’m treating him with Oxycontin. What is the purpose of the Oxycontin? Why do you have that treatment, this medication for him? Will he receive this — what’s his prognosis with the use of Oxycontin? Is he going to have to continue to use it into the future? That’s all I need. With that I can put my client on the stand.
“The Court: Well, is he going to also testify that the charges for the medication are reasonable?
“Mr. Lamancusa: Reasonable, yes.
“The Court: Is he also going to testify that — that his use of the medication is related to the November 7,1994 accident?
“Mr. Lamancusa: Yes.” N.T., March 9, 2000, pp. 1-2.

Defendant argues that, if plaintiffs’ counsel had asked these questions during the original deposition, defendant would have had his doctor available for rebuttal. N.T., March 9, 2000, p. 6. Plaintiffs argue that defendant was aware of the pain medications being used by plaintiff Haisam Mansour. Plaintiffs further argue that defendant had ample opportunity, through deposition and interrogatories, to cross-examine Dr. Gilliland on the significance of plaintiff Haisam Mansour’s medication for pain management. N.T., March 9, 2000, p. 7.

In this case, although Oxycontin was not specifically mentioned by name, Dr. Gilliland’s medical reports clearly indicate use of prescribed pain medication in the treatment of plaintiff Haisam Mansour. Additionally, prior to the trial, Dr. Gilliland’s deposition was taken on January 7, 2000. In this discovery deposition, Dr. Gilliland specifically referred to the use of Oxycontin in treating plaintiff Haisam Mansour. (Transcribed notes of testimony of video deposition of Dr. Gilliland, January 7, 2000, pp. 21 and 33.)

Furthermore, the court recognized that defendant’s expert, Dr. Michael Zernich, had records before him indicating plaintiff Haisam Mansour’s prescriptions for pain medication and, therefore, defendant should not be surprised or prejudiced by the recall of Dr. Gilliland to clarify plaintiff Haisam Mansour’s future need for Oxycontin. N.T., March 9, 2000, pp. 1-16.

Defendant also suggests that, because the parties agreed that no evidence of plaintiff Haisam Mansour’s drug use would be entered as evidence, it was reasonable for defendant to believe no such evidence would be introduced at trial. The court finds this argument disingenuous.

First, the court notes that the agreement is not of record and appears to have been made orally between counsel for both parties without the benefit of the record. The court was first informed of the agreement during pretrial conference discussions regarding plaintiffs’ motion in limine, requesting the exclusion of evidence of plaintiff Haisam Mansour’s prior conviction of criminal mischief. During those discussions, counsel explained to the court that the parties had agreed there would be no evidence presented regarding any propensity of plaintiff Haisam Mansour to use drugs relative to the issue of drug addiction. Based on the nature of the agreement as described by counsel during discussions with the court, the court finds it was not reasonable for defendant to believe that all evidence of any use of drugs, including prescriptions for the medical treatment of plaintiff Haisam Mansour’s pain, would be excluded at the trial of this case.

Given that the recall of Dr. Gilliland was for the limited purpose of establishing future medical expenses as related to plaintiff Haisam Mansour’s Oxycontin prescriptions and that the pleadings had previously referred to plaintiff Haisam Mansour’s prescribed pain medications, the court properly permitted the telephonic deposition of Dr. Gilliland during the trial of this case.

IV.

In regard to the telephone deposition of Dr. Gilliland, defendant also objects to the court’s questioning of the witness on the grounds it was prejudicial to defendant and that the court interjected itself into the trial as an advocate for plaintiffs. The defendant so strenuously argued this point that he suggested the trial judge in this case violated a Canon of Judicial Conduct, although defendant has failed, thus far, to file a formal complaint with the Judicial Conduct Board.

On direct examination by counsel for plaintiffs, the following testimony was elicited from Dr. Gilliland during the telephonic deposition:

“Q. Doctor, is Oxycontin necessary and reasonable treatment for Haisam Mansour?
“A. For his type of problem, it is the ideal or best treatment for him for pain control.
“Q. Doctor, what is his prognosis relative to the receipt of the same prescription of Oxycontin into the future?
“A. We have arrived at a level of medication which gives him comfort, so that we will continue into the future with the same medication without probably going up in dosage. He takes the other medications in supplement to the Oxycontin, but the main medication for him is the Oxycontin and it is a stable dose and he will continue that into the future.” N.T. March 9, 2000, pp. 3-4.

The court then questioned Dr. Gilliland as follows:

“Q. Doctor, how do we know this medication prescribed is related to the accident of November 7, 1994?
“A. The pain that he had following that, and I have seen him, you know, many years back, even after that accident, and followed the pain profile that he has, and I have done many, many trigger point injections into his neck and back. So, I have had on many, many occasions the opportunity of evaluating, examining his neck and back. So, the pain that he has had is certainly related to that accident and certainly requires this medication.” N.T. March 9, 2000, p. 6.

After cross-examination and redirect examination, the court then asked:

“Q. —this prescription or medication you prescribe, are you planning on prescribing that in the future to this patient?
“A. Yes, sir, every month.
“Q. For how long?
“A. Indefinitely, as long as he has the chronic pain problem, and his type of pain problem cannot be resolved, say, by surgery or by any other means. So, we are using this medication as a matter of pain control.” N.T. March 9, 2000, p. 8.

Unless it can be determined that interrogation of a witness by the trial judge amounts to an abuse of discretion, so that “prejudice, bias, capricious disbelief or prejudgment” is discernible, a new trial will not be granted. Smith v. Barker, 368 Pa. Super. 472, 478, 534 A.2d 533, 536 (1987). Furthermore, “a trial judge has the right and sometimes the duty to interrogate witnesses.” Carney v. Otis Elevator Co., 370 Pa. Super. 394, 401, 536 A.2d 804, 807 (1988). “When an important fact is indefinite or a disputed point needs to be clarified, the court may see that it is done by taking part in the examination.” Id. at 402, 536 A.2d at 807.

In the instant case, during examination of Dr. Gilliland, it was plaintiffs’ counsel who elicited testimony regarding the use, tost, reasonableness, and necessity of plaintiff Haisam Mansour’s Oxycontin medication. The court merely clarified the direct testimony of Dr. Gilliland to expand upon the relationship between plaintiff Haisam Mansour’s Oxycontin treatment and the collision. The court’s question as to how long Dr. Gilliland planned to continue prescribing Oxycontin in the future only clarified plaintiffs’ counsel’s question put forth on direct examination as to the physician’s prognosis relative to prescribing Oxycontin in the future. Thus, the court finds no merit to defendant’s objection to the court’s examination of Dr. Gilliland.

V

Also, related to the telephone deposition of Dr. Gilliland is defendant’s objection to testimony of plaintiff Nahla Mansour and Dr. Gilliland regarding the cost of the Oxycontin medication. Defendant argues there was no evidence that the first-party benefits had been exhausted as required by section 1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1722.

Whether first-party benefits were exhausted was discussed and argued at length during the trial when defendant raised this objection. N.T., March 9, 2000, pp. 31-36. Defendant argued that evidence, showing first-party benefits had been exhausted, was required to be presented to the jury along with proof of plaintiffs’ payment, such as credit card receipts and canceled checks. The court found no authority to support such a proposition. Parenthetically, the court observes that defendant relied on Carlson v. Bubash, 432 Pa. Super. 514, 639 A.2d 458 (1994) in his brief in support of defendant’s motion for post-trial relief. This case, however, does not support defendant’s argument in any way. Carlson stands for the proposition that, when evidence of medical expenses is precluded under section 1722 of the Pennsylvania Vehicle Financial Responsibility Law, it is also inadmissible for purposes of showing pain and suffering. The case does not address any matter regarding proof required at trial that first-party benefits have been exhausted.

Furthermore, the court found sufficient basis existed to support a finding that the first-party benefits had been exhausted in this case. Plaintiffs’ counsel explained they were attempting to recover medical expenses paid by Medicare, and Medicare had been given the right of subrogation against any party responsible for plaintiff Haisam Mansour’s injuries. N.T. , March 7, 2000, p. 2. Counsel for plaintiff also noted that a copy of a letter from plaintiffs’ insurance carrier was provided to defendant along with a letter from plaintiffs’ counsel stating that the first-party benefits had been exhausted. N.T., March 9, 2000, p. 31. Counsel for defendant conceded that the letter from plaintiffs’ counsel was received, but could not recall whether a letter from plaintiffs’ insurance company had been received. N.T., March 9, 2000, pp. 32-33.

The court was persuaded that the first-party benefits were exhausted. N.T., March 9, 2000, p. 35. Therefore, in accordance with section 1722 of the Pennsylvania Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1722, only evidence of expenses beyond the first-party limits was admissible at trial. Consequently, defendant’s contention raising first-party benefits and plaintiff Nahla Mansour’s medical expenses is rejected.

VI.

Defendant further contends that the court erred in redacting and refusing to permit the testimony of Dr. Michael Zernich pertaining to plaintiff Haisam Mansour’s drug use, which D. Zernich opined was part of the reason for plaintiff Haisam Mansour’s complaints of pain related to the instant car collision. Given that plaintiff Haisam Mansour and Dr. Gilliland testified with regard to plaintiff Haisam Mansour’s need for narcotic drugs, defendant argues the court’s refusal to allow Dr. Zemich’s testimony effectively disallowed rebuttal testimony to Dr. Gilliland’s telephone deposition and excluded relevant testimony. According to defendant, the relevance of Dr. Zernich’s testimony outweighed any prejudicial effect, especially considering plaintiffs’ claim for permanent injury. The court again disagrees.

As stated in Clinton v. Giles, 719 A.2d 314, 318 (Pa. Super. 1998):

“Where the issue raised involves the admissibility of evidence, we note that ‘Pennsylvania trial judges enjoy broad discretion regarding the admissibility of . . . evidence.’ In exercising that discretion,
“[t]he threshold task of the trial judge ... is to determine whether the evidence is relevant. Once the trial judge determines the evidence is relevant, the further task of the judge is to balance the probative value of evidence against any prejudicial effect of that evidence. Since such balancing is a particular specialty of the trial judge, rulings upon admissibility are committed to the sound discretion of the trial court, and those rulings will not be overturned in the absence of an abuse of discretion.” (citations omitted)

In this case, the court redacted that portion of Dr. Zernich’s testimony concerning plaintiff Haisam Mansour’s apparent past drug addiction. The court found that this testimony was probative as to the issue of whether plaintiff Haisam Mansour’s future medical expenses were related to the automobile collision, but further concluded that the prejudicial effect of Dr. Zemich’s testimony outweighed its probative value. N.T., March 10, 2000, pp. 17-18.

In making the ruling to exclude Dr. Zernich’s testimony because of its prejudicial effect, the court also considers the likelihood that introduction of such evidence would have confused and/or misled the jury by broaching other unrelated issues, such as which particular medications or drugs plaintiff Haisam Mansour was addicted to and whether they were similar to those prescribed for plaintiff Haisam Mansour’s injuries related to the collision in this case. Hence, the objection must be dismissed. See Pennsylvania Trial Guide, Evidence §11.2 (3d Rev. ed. Supp. 1999); Gallegor by Gallegor v. Felder, 329 Pa. Super. 204, 478 A.2d 34 (1984); Geesey v. Albee Pennsylvania Homes Inc., 211 Pa. Super. 215, 235 A.2d 176 (1967).

vn.

Lastly, defendant argues that it was error for the court to allow plaintiff Haisam Mansour to testify as to his son’s injuries and condition at the scene of the collision without issuing a cautionary instruction to the jury informing them that plaintiffs’ son’s injuries and condition are not relevant to the instant case, because plaintiffs’ son is not a party to the action. The following excerpts from the trial are relevant to defendant’s objection regarding plaintiff Haisam Mansour’s direct testimony concerning his son’s condition.

“Q. Okay. And what happened to — what happened to your vehicle in this collision?

“A. I got hit head on, like side, you know, head on like that, and then the next thing I know, I grab my son, you know, and I got thrown out like, you know, frontward all the way, and then I look up. I saw the van come back. Then the collision hit me again on the side. I thought he was going to tip over. So, I dove over my son, you know, and then next thing I know, my car went to the ditch there and his van went down, I would say, a thousand foot down. When I look up, I see his van down the road.

“Q. Where were you, though?

“A. Between the seat. I’m on my son. My son isn’t conscious. I can’t get him to, you know, try talk to him, you know, get him and talk to me, and he just unconscious.

“Q. Okay. And what did you do at that point?

“A. I kept, you know, shaking him up.

“Mr. Stepanian: Objection. May we approach the bench?

“Side Bar.

“The Court: Let’s hear the objection.

“Mr. Stepanian: The injuries to his son are irrelevant to this case, and I know he is going to go into more of what his son says, this, that and the other. I went through the deposition with him. He is going to talk excessively about his son, and I want to get that—

“Mr. Lamancusa: He is not going to talk about his son. The only question is what did you do next. That’s all.
“The Court: Well, I thought we were — that when he was called, we weren’t going to get into the negligence part of it, we were going to go directly to the impact and the nature of the impact.
“Mr. Lamancusa: That’s where we’re at now, at the impact, your Honor.
“The Court: All right. Then, limit the testimony regarding the son, because it really isn’t relevant.
“End Side Bar:
“Q. Haisam, in that regard, when you were there inside the interior of the automobile with your son positioned down below, did you try to get out of the automobile?
“A. First I tried to get my son to respond.
“Q. Okay. I understand that.
“A. Then, I try to get out of the vehicle. Door don’t want to open.
“Q. And after the door — after the door was opened, did you get out of the vehicle?
“A. Yes, I did. I got out of the vehicle and I got my son, me and the lady, and grabbed him and took them all the way around and lay him on the grass. Okay.
“Q. Where did you stand at that point?
“A. I stand with my son try to, you know, try to get him to talk.
“Q. Did you look at the automobile at all, the damage done to your automobile?
“A. No, I didn’t pay attention. I’m with my son respond to me.
“Q. Haisam, do you recall the ambulance arriving?
“A. Yes.
“Q. Okay. And what did they do with you, Haisam?
“A. At the time, they told me to sit. You know, the lady told me to sit on the, you know, she take care of my son laying on the grass. She told me sit on — the one ambulance came in and then told me, you know, not to move, you know, and they pick my son up.
“Q. Okay. When the ambulance came, though, Haisam, what happened to you? What did they do? What did the attendant do?
“A. Come in, pick my son up and then they come in and pick me up.
“Mr. Stepanian: Objection. May we approach the bench.
“Side Bar:
“Mr. Stepanian: I think talking about his son is prejudicial and I would like a curative instruction, and maybe Mr. Lamancusa would like to take a couple of minutes to talk to his client about not referring to his son so that we don’t run into this problem.” N.T. March 8, 2000, pp. 93-104.

The court, in exercising its discretion, did not issue a curative instruction to the jury. However, the court directed counsel for plaintiffs to instruct plaintiff not to mention his son again. Thereafter, no further mention was made of plaintiffs’ son.

As noted previously, in citing Clinton, supra, the trial judge has broad discretion in deciding issues of admissibility of evidence. “Evidence is relevant if it tends to make a fact at issue more or less probable.” Henery v. Shadle, 443 Pa. Super. 331, 341, 661 A.2d 439, 444 (1995). Furthermore, “[a]ny evidence which tends to establish facts in issue or in some degree advances the inquiry at hand is relevant.” Id.

In exercising its discretion, the court finds, in this case, that plaintiff Haisam Mansour’s statements regarding his son’s condition at the time of the collision were relevant in determining the severity of the impact of the collision. The court concludes that the probative value of these statements outweighed any prejudicial effect they may have had.

Based on the above analysis of defendant’s assignments of error, the court finds that the verdict in this case was not shocking to one’s sense of justice and that a factual or legal mistake was not made which formed a sufficient basis upon which to order a new trial. Therefore, defendant’s motion for post-trial relief was properly denied.

ORDER

The court directs that the attached opinion shall be filed, and the Prothonotary is directed to immediately transmit the record to the Superior Court.