author: MILLIN', P.J.,

text:
    In re Sale of Tax Claim Bureau of September 11, 2000
    C.P. of Warren County,
    no. 610 of 2000.

      Timothy Bevevino, for exceptant.
    February 12, 2001
   MILLIN', P.J.,

In this case the court is called upon to determine whether the posting of the subject property was accomplished in conformity with the posting requirements of 72Pa.C.S. §5860.602(e)(3). That subsection provides that “each property scheduled for sale shall be posted at least 10 days prior to the sale.”

On August 17, 2000, the tax claim bureau agent, Francis Hanlin, allegedly posted the property of the exceptant, Robert Joseph Herman, at HC 1, Box 30, Irvine, PA 16329, for a tax sale based on delinquent taxes from the year 1998. A duplicate copy of the posting admitted into evidence as respondent’s exhibit no. 1 identified the time of posting as 8:55 p.m. The property was subsequently sold at tax sale to purchaser Jennifer Brostmeyer on September 11,2000. The property owner, Robert Joseph Herman, then timely filed these objections or exceptions to the tax sale. The matter was set for a hearing on January 3, 2001. After the close of the tax claim bureau’s case in chief, exceptant moved for a directed verdict. The court deferred ruling on the motion and heard the exceptant’s evidence. The parties subsequently briefed the issues and this case is now ripe for determination.

The law is well settled in Pennsylvania that a valid tax sale requires strict compliance with all three of the notice provisions of section 602 and that if any of the notices are defective, the sale is void. In re Upset Price Tax Sale of September 25, 1989 (Weiland) v. Delaware County Tax Claim Bureau, 150 Pa. Commw. 191, 194, 615 A.2d 870, 872 (1992); Chester County Tax Claim Bureau v. Griffith, 113 Pa. Commw. 105, 536 A.2d 503 (1988); Trussell Appeal, 102 Pa. Commw. 32, 517 A.2d 221 (1986). In reviewing the record to determine whether strict compliance with notice requirements have been met, the inquiry focuses on the acts of the tax claim bureau rather than any neglect on the part of the property owner. Griffith, 113 Pa. Commw. at 108, 536 A.2d at 504. This strict compliance with the notice requirements is necessary to guard against any deprivation of property without due process of law. In re Upset Price Tax Sale of September 10, 1990 (Sortino), 147 Pa. Commw. 52, 57, 606 A.2d 1255, 1258 (1992); Kleinberger v. Tax Claim Bureau of Lehigh County, 64 Pa. Commw. 30, 35, 438 A.2d 1045, 1047-48 (1982).

Moreover, the case law is clear that the burden of proof of proper posting where the property owner has raised exceptions to a tax sale rests with the tax claim bureau. A presumption of the regularity of an official act, herein posting, exists only “until the contrary appears.” Sortino, 147 Pa. Commw. at 56, 606 A.2d at 1257. The case law is abundantly clear that the contrary will appear and the property owner overcomes the presumption of regularity by filing exceptions that aver that the tax claim bureau did not comply with statutory notice requirements. Id.; Dolphin Service Corp. v. Montgomery County Tax Claim Bureau, 125 Pa. Commw. 220, 557 A.2d 38 (1989), alloc. den., 525 Pa. 588, 575 A.2d 117 (1990); see also, Hughes v. Chaplin, 389 Pa. 93, 95, 132 A.2d 200, 202 (1957) (noting a prima facie presumption of regularity of acts of public officers exists until the contrary appears and such a presumption is a procedural expedient particularly suitable in tax sales). Given this case law, it is clear that the tax claim bureau bore the burden of proof to establish that the posting of the property more than 10 days prior to the September 11 tax sale was proper.

In order to establish whether the posting in this case provided adequate notice we turn first to case law addressing what posting adequately informs the taxpayer and others of a tax sale. Because the statute does not provide guidance in this regard, the case law has addressed this issue. In Sortino, the Commonwealth Court noted that it had not yet addressed what constitutes a proper posting but that the courts of common pleas throughout the state had on numerous occasions been required to resolve this issue. Sortino, 147 Pa. Commw. at 58, 606 A.2d at 1258.

It is important to recognize that there are two components to the posting requirement. First, that the property owner be given notice of the tax sale and second, and equally important, that the public be given notice of the pending tax sale. In re Tax Sale of 28.8525 Acres In Middlecreek Township Tax Sale No. 12434 (Mognet), 688 A.2d 1239, 1242 (Pa. Commw. 1997). The reason for this is two-fold. First, if made aware of the tax sale, the public is more likely to participate in the sale. Public participation will increase the number of bidders and improve the likelihood of recouping the delinquent taxes plus it will provide a fair sale to the delinquent taxpayer. Posting likewise serves to notify others with an interest in the property. Sortino, 147 Pa. Commw. at 57, 606 A.2d at 1258; Mognet, supra.

These important considerations underlie the principle established in case law that a posting must be noticeable to passersby as well as to the owner. Ban v. Tax Claim Bureau of Washington County, 698 A.2d 1386, 1389 (Pa. Commw. 1997). Thus tax claim sales have been voided where the posting notice was merely handed to the owner or placed in a location where only the owner would discover it, i.e., affixed to the back door of a residence not visible to the public passersby. Id. at 1388; see Lapp v. County of Chester, 67 Pa. Commw. 86, 90, 445 A.2d 1356, 1358 (1982) (finding that affixing a posting with Scotch tape to a sliding glass door constituted adequate and reasonable method of posting where the deputy sheriff looked back and saw that the posting was still affixed to the door).

The Commonwealth Court in Sortino noted that courts of common pleas had required posting by “placing the notices somewhere on the premises for all to observe” rather than handing a notice to an owner. As well, notices were required to be posted in “such a manner as to attract attention.” Thus, one attribute of a proper posting, sufficient to meet the public notice requirement, would be its conspicuousness and whether it was posted so as to “attract attention.” In Sortino, the Commonwealth Court concluded that folding a notice in half and affixing it to the keyhole of a door obscured by the screen door would not be a conspicuous posting sufficient to satisfy the notice requirements of the Act. 147 Pa. Commw. at 58, 606 A.2d at 1258.

Given these legal standards, we turn to the facts as adduced at the hearing. This case presents somewhat unusual facts, albeit not for a rural area such as Warren County, because the residence is located a significant distance from the property boundary. Francis Hanlin testified that he affixed the posting to a pillar located on the front porch of the residence, so that anyone entering the house could see the posting. N.T. at 4. The exceptant introduced evidence that his residence is located some 270 feet removed from the only public road adjacent to the property. N.T. at 24. Moreover, between this highway and the residence the terrain slopes downward approximately 45 feet. N.T. at 24. Between the highway and the residence are woods and underbrush, as shown in photographs taken the day of the January hearing. Exceptant’s exhibits 1,2, 3 and 4. These pictures, which depict minimal foliage and underbrush on a January day, demonstrate the difficulty of viewing the house from the highway. The pictures reveal that the house is not located at the end of a straight driveway; rather the driveway ends near a garage and the house is located to its right such that one looking directly down the driveway from the highway would not have a direct view of the residence. The court takes judicial notice that typical foliage present on trees in August combined with underbrush would completely obscure the residence from the road. Thus, exceptant urges that the posting, if affixed to a porch post of the residence, was not adequate to provide any public notice whatsoever of the tax sale given the distance and terrain between the residence and Route 62.

The court has not uncovered case law precisely on point. The cases reviewed either refer to a residence on a small lot and consider whether the location of the posting on the residence itself would be visible from an adjacent street or the cases refer to entirely undeveloped lots in which postings were placed on trees or poles. Thus, this case presents a unique blend of those more common fact patterns. We are called upon to determine whether a posting which would be conspicuous to an owner but not to the public meets the statutory requirements.

We find the case of Hunter v. Washington County Tax Bureau, 729 A.2d 142 (Pa. Commw. 1999), instructive. There, the owner appealed a tax sale based on her allegation that the property had been improperly posted. The trial court in that case denied the appeal and the owner appealed to the Commonwealth Court. The property was described as two undeveloped pieces of property to which the tax claim bureau agent had affixed 5x7 inch paper notices on trees or posts with masking tape across from homes owned by others. The Commonwealth Court found these postings to meet the conspicuous requirement as they were placed on poles or trees just off the road near adjacent neighbors’ homes. The fact that these neighbors testified that they did not see these notices did not render them legally inconspicuous.

In order to maintain the public notice purpose of the posting statute, we hold that the notice must be affixed in a place where one passing by the property would be in a position to see the notice. We caution that we do not hold that the notice must be of sufficient size, typeface, color, etc. to be legible to the occupant of a vehicle traveling by at 55 miles per hour, but only that the posting be affixed to a tree, pole, or an object visible from the vantage point of a member of the public located on an adjacent roadway or parcel of property. In this case, posting a tree located at the distal end of the property owner’s driveway would have sufficed. Given this standard, the posting of a notice on a porch post of a house located 270 feet from a public road, with an elevation drop of 45 feet from that road, and an obstructed view due to woods and underbrush encompassing the entire width of the owner’s property, does not suffice to provide adequate public notice.

The court also makes the following finding of fact: the tax claim bureau failed to meet its burden of proof to demonstrate that the subject property was properly posted. In reaching this conclusion, the court considered that the testimony of Mr. Hanlin suggested that he had some difficulty initially locating the property and that his description of the property he posted varied in several respects from the photographs of the property entered into evidence. He recollected that the residence had entryways on opposite sides facing north and south and that the porch pillars were made of stone. The photographs show wooden pillars painted white and exceptant testified that the entryways were located on the northern and eastern sides of the residence. Exceptant testified that his dog runs loose on the four and one-half acre property and Mr. Hanlin did not recollect seeing a dog. Exceptant and another member of his household testified that neither saw the posting and both would have been absent from the residence on the date in question only for purposes of work or running errands. Exceptant also testified that when he discussed the posting with Mr. Hanlin upon learning of the sale, Mr. Hanlin opined that he may not have posted the correct property.

Having relied upon the exceptant’s exhibits in concluding that the posting would not have met the legal requirement for serving notice on the public, the motion for directed verdict will be denied and the exceptions sustained.

For the foregoing reasons, the court enters the following order:

ORDER

And now, February 12, 2001, exceptant’s motion for directed verdict is denied, the exceptions are sustained and the tax sale of September 11,2000 with regard to the property identified as Pleasant Township YV-932-883800-000 is hereby set aside.


source: Caselaw Access Project

author: JAMES JR., J.,

license: Public Domain

text:
    Norris v. O’Brien

      C.P. of Columbia County,
    no. 169 of 1999.

      David Trathen, for plaintiff.

      William Kim Hill, for defendant.
    January 22, 2001
   JAMES JR., J.,

Pursuant to a stipulated order dated April 5, 1999, plaintiff and defendant were granted shared physical custody of their minor child Katie Elizabeth Norris, born March 7,1997. Defendant/ mother had physical custody every other weekend, one additional night each week, and other times as the parties agreed. Plaintiff/father had physical custody for the balance of the time. This arrangement was modified by court order dated January 25, 2000, which continued shared physical custody, but modified the time, with each party having physical custody of Katie on alternating weeks.

On June 28, 2000, plaintiff filed a petition to again modify the custody order and to seek primary physical custody of Katie. The special master recommended that the existing arrangement remain the same. Plaintiff filed exceptions. A custody modification hearing was held before the court January 10, 2001. Although defendant did not file a pleading, she proposes that the order be modified granting her primary physical custody of Katie. At the hearing, both parties specifically said that they did not want to continue the present alternating week arrangement. Both parties want Katie to be in a primary environment, particularly since she will be attending preschool in the fall of 2001.

At the hearing, plaintiff’s witnesses included plaintiff himself; Candi Norris (plaintiff’s present wife); Cindy Neidig (plaintiff’s mother); and Nicole Norris (plaintiff’s sister). Defendant’s witnesses included defendant herself; Amy Kase (defendant’s supervisor at work); Trina Yerger (defendant’s co-worker); Jackie Curry (defendant’s sister); Jennifer Wells (defendant’s sister); Edith O’Brien (defendant’s stepmother); and Jeremy Young (defendant’s present husband).

Plaintiff’s exhibits consisted of photographs of his residence, of the children, and of certain toys; Katie’s medical records; plaintiff’s wife’s day-care documents; and informational documents about the Hershey and Millville school districts. Defendant offered no exhibits.

FINDINGS OF FACT

The court finds that the following facts have been proved:

(1) Plaintiff is Jamie Lee Norris, age 24, bom February 5, 1975. He lives at 142 Washington Ave., Hershey, Pennsylvania, in a remodeled farmhouse situate on three or four acres in a mral setting. His wife, Candi Norris, age 28, and her three children (Lee, age 11; Kaitlyn, age 8; and Casey, age 4) also reside in the house.

(2) Defendant is Kimberly O’Brien Young, formerly Kimberly Anne O’Brien, age 27. She resides at 30 Hons Lane, Millville, Pennsylvania, in a three bedroom farmhouse situate on 74 acres in a mral setting. Her husband Jeremy Young, age 20, and her daughter Erin, age 5, also live in the house.

(3) Defendant’s son Corey, age 10, has lived primarily with his aunt and uncle for the last seven years as a result of an abusive situation with a former paramour of defendant. The abusive paramour was jailed for the offense. (Defendant was also a victim of the paramour’s abuse.) Corey lives with defendant every other weekend. Defendant is attempting to regain full custody of Corey at the end of this school year, although a bond has developed between Corey and his aunt and uncle. Corey’s natural father has had no contact with Corey since birth.

(4) Erin’s natural father has had no contact with Erin since her birth.

(5) Defendant had a child with her abusive paramour approximately seven years ago. That child was put up for adoption.

(6) Candi Norris’ children Lee and Kaitlyn live with their natural father approximately four weeks each summer in West Virginia. Her daughter Casey visits with her natural father approximately every other weekend.

(7) Defendant married Jeremy Young, age 20, on November 25, 2000. Mr. Young and defendant had dated since June 1999 and lived together for some time before their marriage. Mr. Young is a good worker and has a steady job installing computer lines. He works from 8 a.m. to 4 p.m. Monday through Friday, and sometimes on weekends.

(8) Plaintiff married Candi Norris on May 12, 2000. Plaintiff has a steady job as a heating and air conditioning technician. He is a good worker. His hours are normally 8 a.m. to 4:30 p.m. Monday through Friday, and he is on call one weekend each month.

(9) Candi Norris had been a medical assistant and medical secretary for approximately six years until July 2000, when she established her own in-house day-care business. She made the change to accommodate her daughter Casey and also Katie, so they would not have to go to a third-party provider. She has proper facilities to take care of up to seven children plus Casey and Katie.

(10) Katie has a close relationship with Casey as well as with Lee and Kaitlyn. Katie also has a close relationship with her half-sister Erin.

(11) Plaintiff and Candi Norris provide a very beneficially structured environment for Katie and for Candi’s other children.

(12) Plaintiff and his wife have also been very attentive to Katie’s medical and dental needs. Katie has allergies to pets, dust and mold. Plaintiff normally arranged dental and medical care when the parties lived together and while plaintiff lived in Montour County. Plaintiff is a very solid and responsible parent.

(13) Defendant is employed as a unit secretary at Millville Health Center. She works from 7 a.m. until 3 p.m. Monday through Friday, and a minor amount of overtime. She is a steady and good worker. She is well liked by her fellow workers and by the patients at the health center.

(14) Defendant has many supportive relatives and friends in the Columbia County area.

(15) Despite her obvious personal difficulties in her late teenage years and early twenties, defendant has become a hard worker and relatively stable person. She is very personable and offers her children sincere personal warmth and caring.

(16) Erin goes to preschool and to a day-care center when defendant is at work, as will Katie if defendant has custody during the week.

(17) The parties were not married when Katie was bom, but lived together for almost two years after her birth. After they separated, the parties worked well together arranging custody of Katie. Plaintiff had custody a little more than defendant did.

(18) Plaintiff decided to move to Hershey in approximately January 2000. He wanted to live with Candi. His family was from that area, and he believed that job opportunities and the schools were better in the Hershey area.

(19) Since plaintiff moved to Hershey, the parties have exchanged custody weekly. Although the arrangement has provided Katie an opportunity to bond equally with both parents, the arrangement is becoming confusing to her. She is having difficulty relating to who is her family, particularly who is her mother. Katie has a difficult time adapting to the custody exchanges each week.

(20) Both parties believe that Katie needs a primary home and more stability, particularly since preschool starts soon.

(21) Both parents have provided Katie with love and affection.

(22) Both parents provide Katie with appropriate discipline.

(23) Both parents have been able to cooperate in developing a strong parental relationship between the other parent and Katie.

(24) All of the witnesses in this case are credible.

(25) Both parents have been significant caregivers.

(26) Both plaintiff and defendant have been loving and caring parents, who sincerely have the best interests of Katie at heart.

DISCUSSION

The paramount consideration of any child custody proceeding is what is in the best interest and welfare of the child, which includes preserving the welfare of the child’s physical, intellectual, and spiritual well being. Cardamone v. Elshoff, 442 Pa. Super. 263, 659 A.2d 575 (1995). The court will consider all relevant factors that could affect a child’s well being. Andrews v. Andrews, 411 Pa. Super. 286, 289, 601 A.2d 352, 353 (1991).

In most respects and at this time, the relevant factors to be considered in custody cases are balanced approximately equally between the parties. They are both fit parents. Plaintiff and his spouse are clearly more structured and disciplined in their approach to raising children. Defendant could take some pointers. However, defendant may offer a warmer atmosphere that is less likely to confuse Katie. Both parties can provide for the needs of Katie, and both have extended families and friends for support. Both parties have relatively brief marriages at this time, which is a concern for both parties vis-a-vis Katie.

Both parties work and need daycare. Of course, plaintiff’s wife can provide in home daycare, which is a plus. However, this daycare will continue for a relatively brief time before Katie starts school. The day-care situation should not control this case.

The parties are both decent individuals. They have cooperated with custody remarkably well, and there is no reason to think that they will not cooperate in the future.

Although not a pure relocation case, we should review the three-prong test under Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), to determine whether a custodial parent and child may relocate. The three Gruber considerations are:

“[(1) T]he court must assess the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent....
“[(2) T]he court must establish the integrity of the motives of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it....
“[(3) T]he court must consider the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent.” Gruber v. Gruber, 400 Pa. Super, at 184-85, 583 A.2d at 439.

The Gruber analysis is appropriate in shared physical custody cases as part of the overall “best interest of the child” analysis. Thomas v. Thomas, 739 A.2d 206, 209 (Pa. Super. 1999). Our case is a shared custody case. The three Gruber prongs should be considered. First it is clear that plaintiff did not move from the Columbia-Montour area on a pure whim. Ffe gave it a lot of thought and had good reason to move, i.e., to improve the quality of his life with better job opportunities. Second, plaintiff’s motives for the relocation were untainted. Third, substitute custody arrangements have been made and can be made in the future which can continue to foster a loving ongoing relationship with both parents.

One of the biggest considerations in this difficult case is the separation of Katie from her half-sister Erin. Although Katie also has close ties to Casey (her stepsister), there is a strong policy in our law that in the absence of compelling reasons to the contrary, siblings should be raised together whenever possible. “This principle [should not be] diluted by the fact that the third child” is a half sister. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 328, 421 A.2d 157, 160-61 (1980). “Absent compelling reasons to the contrary, the policy of this Commonwealth has been that siblings should be raised together whenever possible.... The threshold for this standard is that the evidence must indicate it was necessary to separate the children and the evidence was forceful in this regard____Without these compelling reasons, the children should be raised together in one household, which permits the continuity and stability necessary for a young child’s development.” Ferdinand v. Ferdinand, 763 A.2d 820, 823-24, (Pa. Super. 2000) (no. 813 MDA2000), reargument denied, December 22, 2000. (citations omitted) There are no compelling reasons to separate Katie and Erin.

After consideration of all of the relevant factors, the court finds that the best interest of the minor child would be served by a custody arrangement that provides for shared legal and physical custody and with primary residence with defendant and significant residential time with plaintiff.

ORDER

And now, January 22, 2001, it is ordered and decreed as follows:

(1) The parties shall enjoy joint legal custody of their minor child, Katie Elizabeth Norris, bom March 7,1997, and shared physical custody of Katie subject to the physical custody schedule set forth herein.

(2) Defendant shall have physical custody of Katie except during those times when plaintiff shall have physical custody as specified in paragraph three below.

(3) Plaintiff shall have physical custody as follows:

(a) On the first, third, and fourth weekends of each month from 6 p.m. on Friday until 6 p.m. on Sunday.

(b) Every summer from one week after school ends until one week before school resumes. Defendant shall have physical custody during the summer on the first, third, and fourth weekends of each month from 6 p.m. on Friday until 6 p.m. on Sunday. Each parent shall have physical custody during the summer for an uninterrupted 10-day vacation period with Katie. However, said 10-day period must be utilized in conjunction with and include their Friday to Sunday custody period. Each parent shall give to the other a 30-day written notice as to when the 10-day vacation will occur.

(c) In even numbered years from December 23 at 6 p.m. through December 25 at 2 p.m.; and from December 30 at 6 p.m. until the day before school resumes at 5 p.m. In odd numbered years from December 25 at 2 p.m. through December 30 at 6 p.m.

(d) The Easter vacation shall be shared between the parents as equally as possible, taking into consideration the fact that this vacation may be shortened due to snow makeup days. In even numbered years, plaintiff shall have custody the first half of the vacation and defendant the second half. In odd numbered years defendant shall have custody the first half of the vacation and plaintiff the second half.

(e) At Thanksgiving time (Thursday through Monday), in even numbered years, plaintiff shall exercise custody from noon on Thursday to noon on Saturday. In odd numbered years plaintiff shall exercise custody from noon on Saturday to 6 p.m. on Monday.

(f) Every Memorial Day and weekend, every Labor Day and weekend, and every Fourth of July and weekend.

(g) Every Father’s Day from 6 p.m. on Saturday until 6 p.m. on Sunday. (Defendant shall have every Mother’s Day from 6 p.m. on Saturday until 6 p.m. on Sunday.)

The holiday schedule shall supercede the regular custody schedule to the extent it conflicts with the regular schedule. The 10-day vacation period shall not super-cede weekend custody periods.

(4) Nothing in this order shall be construed to restrict or limit, the ability of the parties to agree to additional custody arrangements.

(5) The parties shall equally share all transportation necessary to implement this order. The exchange point shall be the McDonald’s Restaurant at the Pine Grove exchange on the east side of Interstate 81.

(6) The parties shall have reasonable telephone contacts with their minor child when she is in the custody of the other party.

(7) The parties shall exchange all information pertaining to the health, education, and welfare of the minor child; including without limitation, report cards; progress reports from school; approval of extraordinary medical and dental treatment; summer school; summer camp; and approval of schools in general, provided that such approval shall not be unreasonably withheld.

(8) The parties shall have equal access to all school and medical records of the minor child, and each shall have the ability to consent to emergency medical treatment when the child is in the custody of such party.

(9) If circumstances from time to time prevent the exercise of physical custody, the parties shall provide one another with timely and reasonable notice as to the existence of such circumstances and an equal amount of make-up physical custody time shall be provided at the earliest mutually agreeable date and time.

(10) The parties shall notify one another by telephone of any serious illness of the child.

(11) In the event of any serious illness of the child, each party shall have the right to visit the child as frequently as he or she desires, consistent with proper medical care.

(12) The term “illness,” as used herein, shall mean any disability which confines the child to bed under the direction of a licensed physician for a period in excess of 48 hours.

(13) The parties shall exert reasonable efforts to maintain free access and unhampered contact between the child and each of the parties and to promote a feeling of love and affection between the child and the other party.

(14) The parties shall not harass, molest, or malign each other, or their respective families in the presence of their child.

(15) Neither party shall engage in a pattern or course of conduct designed to interfere with the free and natural development of the child’s love and respect for the other party.

(16) If either party intends to relocate from their present residence, he or she shall provide the other party with a minimum of 30 days advance written notice of such relocation to permit modification of the terms and conditions recommended herein, if necessary.

(17) Both parties shall keep the other party informed at all times of their respective addresses and telephone numbers.

(18) Neither party will abuse alcohol while caring for the minor child and each will maintain a safe environment for the child.


author: PAPALINI, J.,

text:
    McCollum v. Smith

      Stewart Bernstein, for plaintiff.

      Brian J. Kredo, for defendant.
    January 18, 2001
   PAPALINI, J.,

This motor vehicle accident case was tried by a jury with the undersigned presiding in September 2000. The jury returned with a verdict in favor of the defendant. Plaintiff Grace McCollum filed a motion for post verdict relief, asserting that the verdict was against the weight of the evidence. It was also asserted that defense attorney Brian J. Kredo, Esquire, made prejudicial remarks during closing argument.

After a review of the record, the briefs, additional case law and oral argument, the court concludes that the verdict was against the weight of the evidence. Therefore, a new trial is required.

In this case, the jury answered special interrogatories on a jury verdict sheet.

In questions no. 1 and 2, they found that the defendant was negligent but that his negligence was not a substantial factor in causing injury to the plaintiff. Instead of stopping and returning with their verdict as instructed on the jury verdict sheet, the jury continued.

In questions no. 3 and 4, they found that plaintiff was negligent but that her negligence was not a substantial factor in causing harm to herself.

In question no. 5, the jury apportioned causal negligence at 50 percent for each.

In question no. 6, they found that the plaintiff was entitled to $0 in damages.

The evidence presented at trial on liability was that the accident occurred on June 10, 1997. Both plaintiff and defendant were proceeding southbound on 12th Street in Philadelphia, Pa. Each testified that the other caused a sideswipe.

From an examination of the entire jury verdict sheet, it appears that the jury did not find that plaintiff herself was solely responsible for the accident or that her responsibility exceeded 50 percent. It would appear that the jury found that both were equally responsible for the accident. Therefore, the award of zero damages was not based on liability.

We conclude that the finding of zero damages was based on the fact that the jury found that plaintiff had very little credibility when testifying about her injuries. We believe that they found that her testimony was greatly exaggerated.

However, in this case, videotaped depositions were presented from both plaintiff’s expert, Jerry Murphy M.D. and defendant’s expert, David N. Bosacco M.D.

Dr. Murphy testified on behalf of the plaintiff, that as a result of the trauma of the accident of June 10, 1997, plaintiff suffered from tearing and swelling of the tendons in her left shoulder as well as sprains to her neck and back, this trauma being superimposed on a pre-existing degenerative process. (N.T. dep. 25,27,40-41,56, 60.)

Dr. Bosacco testified on behalf of the defense, in part, as follows:

“Q. Based upon the history that you attained [sic] at that time as well as the reports that you reviewed and the examination that you performed, were you able to render diagnoses for Miss McCollum? ...
“A. Regarding the shoulder sprain, or regarding the shoulder injury of the left shoulder, the diagnosis was a left shoulder sprain with an exacerbation of pre-existing degenerative change in the left shoulder, which means the patient had some degenerative change sometimes known as arthritis or symptoms referable to arthritis before she was injured, and the injury then caused increase in the symptoms related to the degenerative change in the shoulder, and that’s called an exacerbation.
“My impression also was that Miss McCollum had sustained a sprain of her neck, which means an injury to the muscles and ligaments of the neck due to stretching. And, also, I felt that she had what would be called an exacerbation of pre-existing cervical disc disease, which would mean that this patient had degenerative disc disease at multiple levels and the motor vehicle accident caused an increase in symptoms due to irritation or exacerbation of those discogenic problems.
“Those were the diagnoses related to the evaluation of June 14, 2000.” (N.T. dep. 14-15).

In this case, both sides agreed that plaintiff had suffered injury as a result of the accident of June 10, 1997. The dispute was with regard to the severity and duration of the injuries.

Since there was no dispute that some injury to plaintiff did occur as a result of the incident in question, the jury was not free to disregard the unrebutted evidence and award no damages. See Kruczkowska v. Winter, 764 A.2d 627 (Pa. Super. 2000); Hixson v. Barlow, 723 A.2d 716 (Pa. Super. 1999); Craft v. Hetherly, 700 A.2d 520 (Pa. Super. 1997); Rozanc v. Urbany, 444 Pa. Super. 645, 664 A.2d 619 (1995); Hawley v. Donahoo, 416 Pa. Super. 469, 611 A.2d 311 (1992).

As to plaintiff’s claim that Mr. Kredo made prejudicial remarks during closing argument, we conclude that those remarks amounted to hyperbole, had little impact on the verdict of the jury, and do not warrant the grant of a new trial. For the reasons set forth above, we grant the plaintiff a new trial based on her supported claim that the verdict was against the weight of the evidence.

ORDER

And now, January 18,2001, after review of the record, oral argument and the briefs of the parties, it is hereby ordered and decreed that plaintiff Grace McCollum’s motion for post-trial relief is granted and the matter is remanded for a new trial.

      . Mr. Kredo said: “Interestingly, this accident occurred on June 12, 1993. She was struck on the left side on 12th Street near Race Street on her way back to work. Four years before our accident, coming down 12th Street going to work, same exact thing, same exact side, same exact injuries. Let me give you a little piece of advice. Don’t go anywhere near 12th Street around June of the year 2001, because she might be there looking for another suit to lodge.” (N.T. 50, 9/14/00.)


author: EVANS, J.,

text:
    Ferguson v. McKiernan

      C.P. of Dauphin County,
    no. 1259 DR 1999.

      Elizabeth Hojfman, for plaintiff.

      John Purcell Jr., for defendant.
    December 31, 2002
   EVANS, J.,

This unusual action arose when plaintiff filed for child support claiming that the defendant was the putative father of the twin boys plaintiff gave birth to on August 25, 1994. On February 7, 2000, defendant filed preliminary objections in the nature of a demurrer arguing that at the time the children were conceived, the plaintiff was married to her then husband, Paul S. Ferguson. Defendant also argued that Mr. Ferguson was named as the father on the birth certificates and that the plaintiff gave the children his last name, thus invoking the presumption that Mr. Ferguson was the natural father of the children. Plaintiff counter-argued that at the time of conception, plaintiff was married but had been separated from her husband for almost one year. The children were conceived through in vitro fertilization on February 14, 1994, the same date that Mr. Ferguson filed for divorce from plaintiff. The divorce was finalized on June 27,1994. There was no testimony that Mr. Ferguson ever held himself out as the father of the twins, nor that he accepted such role.

On November 9, 2000, a hearing was held in which the court determined the plaintiff had overcome the presumption that Mr. Ferguson was the natural father of the children. N.T. 11/9/00 at 73. At that time, defendant denied paternity. Id. at 76. Defendant submitted to DNA testing that concluded defendant could not be excluded as the children’s biological father. On August 20, 2001, an appeal was heard on the Dauphin County Domestic Relations’ determination. The record was kept open for a supplemental hearing on March 7, 2002. For the following reasons, we hold that the defendant is the legal father of the children and must therefore pay child support insofar as he directly and knowingly brought them into this world. This opinion, however, does not address any cause of action for indemnification by the plaintiff herself.

Our decision is conditioned on the extremely convoluted facts of this case. Plaintiff and defendant met in 1990 and were co-workers at Pennsylvania Blue Shield. N.T. 8/20/01 at 8. The parties began a physical relationship in 1991 while maintaining separate residences during the relationship. Id. During the course of their relationship, plaintiff and defendant broke up several times before getting back together. Id. at 10. The defendant never used condoms during intercourse because plaintiff cajoled defendant that she was using a new form of birth control, the Norplant device, which required having a metal pin inserted into her arm. Id. at 14. Plaintiff also revealed to defendant’s brother she was using some method of birth control that did not involve the use of birth control pills. Id. at 106. During the relationship, however, plaintiff never enlightened defendant of the fact that plaintiff had a tubal ligation following the birth of her second child, thus rendering her sterile. Id. at 15.

During the summer of 1993, their relationship waned as their affection began to dwindle. Id. However, plaintiff first raised with defendant the possibility of conceiving a child with him. Id. at 18. Defendant immediately declined to conceive a child through intercourse despite his unawareness of plaintiff’s inability to do so. Id. Later in 1993, plaintiff then requested that defendant donate his sperm for purposes of artificial insemination, thus removing him as a natural, biological father, but rather as a sperm donor. Id. Defendant, reluctant at first, agreed to do so after being assured by plaintiff that she had thoroughly considered being a single mother and that she had sufficient financial resources to raise a child on her own. Id. at 19. Both parties entered into an oral contract where defendant would purely be an anonymous sperm donor, to everyone except the plaintiff, provided that he would have no responsibility to any children born from the procedure. Id. Moreover, defendant would have no rights to the children, nor would he be obligated to financially support them. Id. at 20.

Earlier in 1993, plaintiff consulted with her physician about having her tubal ligation reversed. N.T. 11/9/00 at 15-17. However, in September 1993, after being informed the ligation could not be reversed, plaintiff spoke with Dr. William Dodson at the Hershey Medical Center about becoming pregnant using the IVF procedure. Id. at 19. At that meeting, it was represented to the hospital that the man accompanying the plaintiff was her husband, Mr. Ferguson. In fact, the testimony indicates that the defendant was unaware of these preliminary consultations. Numerous papers, charts, and forms were completed without the defendant’s knowledge or presence. This latent subterfuge by the plaintiff is the cornerstone of the defendant’s position. Clear to this court as it is, we hinge our decision on a different legal axiom.

The plaintiff was then accepted as a candidate for IVF. On February 14, 1994, pursuant to the parties’ agreement, the defendant went to Hershey Medical Center and provided a sample of his semen which was then used by Dr. Dodson to successfully impregnate plaintiff. The procedure resulted in the conception of twin boys who were bom prematurely on August 25, 1994. At no time did defendant bear any of the costs related to the procedure. N.T. 8/20/01 at 27.

Defendant remained friends with plaintiff during her pregnancy although he never attended any of her prenatal examinations. Id. at 32. Defendant intended to remain anonymous during plaintiff’s pregnancy. However, defendant’s brother noticed plaintiff’s pregnant condition and plaintiff stated that defendant was the father. Id. at 112. Defendant’s brother subsequently confronted defendant and defendant admitted to being the donor. Id. at 24. Defendant also admitted to his parents that he was the donor after they received anonymous phone calls. Id. at 25.

The plaintiff subsequently went into premature labor and was frantic over the possibility of losing the twins. Id. at 33. In a panic, plaintiff called defendant and asked him to attend the birth, which defendant did because he believed plaintiff could turn to no one else. Id. at 34. During the birth, defendant maintained his anonymity and did not represent himself as the father. Id. In continuing her misrepresentation to the hospital, the plaintiff named Paul Ferguson as the father on the birth certificates. Id. at 35.

After the twins were bom, defendant saw plaintiff and the boys on a few occasions in the hospital. Id. at 37. Approximately two years after the births, defendant spent an afternoon with plaintiff and the twins while visiting his parents in Harrisburg. Id. Defendant never provided the children with financial support or gifts, nor did he assume any parental identity. Id. at 38. Defendant had no further contact with either plaintiff or the children until May 1999 when plaintiff randomly obtained defendant’s phone number and subsequently filed for child support. Id.

The court first finds that an oral agreement existed between plaintiff and defendant in that the defendant volunteered to anonymously donate his sperm for the IVF procedure in exchange for being released of any rights to the children or obligation to pay child support. Oral contracts are normally enforceable. Egyptian Sands Real Estate Inc. v. Polony, 222 Pa. Super. 315, 320, 294 A.2d 799, 803 (1972). However, no agreement is enforceable without valid consideration. “Valid ‘consideration’ confers a benefit upon the promisor or causes a detriment to the promisee and must be an act, forbearance or return promise bargained for and given in exchange for the original promise.” Cardamone v. University of Pittsburgh, 253 Pa. Super. 65, 72 n.6, 384 A.2d 1228, 1232 n.6 (1978) (citing Hillcrest Foundation Inc. v. McFeaters, 332 Pa. 497, 503, 2 A.2d 775, 778 (1938)). While forbearance from proceeding with a lawsuit may constitute good consideration for an agreement, it must be bargained for and given in exchange for the promise made by the promisor. Id. The defendant’s anonymous donation of his sperm and plaintiff’s promise to forego any action for child support amounted to good consideration. Here we find the oral agreement entered into by the parties expressed their intentions and was supported by valid consideration.

Insofar as the agreement kept defendant’s identity secretive, no other persons were privy to the agreement. Thus, the court relied largely on the testimony of the parties. In determining that a valid contract existed, we simply find the defendant’s testimony credible, especially by virtue of the other entire attendant testimony and evidence. Defendant’s testimony was consistent throughout all the court’s proceedings, whereas plaintiff’s testimony contained numerous inconsistencies and contradictions, not to mention intentional falsehoods, fraud, and deceit involving not only the defendant, but the hospital as well.

Plaintiff testified that she and defendant started discussing having children together in February 1994 after defendant’s brother discovered his wife was pregnant around the same time. Id. at 169. However, plaintiff visited Dr. Dodson about the IVF process that resulted in the birth of her twin boys in September 1993. After defense counsel impeached plaintiff’s credibility with this fact, plaintiff insisted that she and defendant initially began the thought of having children in 1994.

Various persons inquired about plaintiff’s pregnancy in 1994 at which times she gave conflicting accounts. Plaintiff revealed to the defendant’s brother that the defendant was the father but that it happened accidentally. Id. at 112. She told her then husband that her tubes became untied and that she did not know who the father was. Id. at 121. Plaintiff stated in her deposition that defendant never attended any of her consultations with Dr. Dodson. She later testified that defendant enthusiastically attended those meetings. N.T. 11/9/01 at 63-64. Plaintiff testified that defendant decided he did not wish to be the twins’ father during the fourth or fifth month of plaintiff’s pregnancy after defendant met his present wife and she protested that the children would “mess up their white picket fence.” N.T. 8/20/01 at 153-54. However, even if this statement were true, which defendant later refuted, defendant did not meet his present wife until late July 1996. N.T. 3/7/02 at 28.

Moreover, as further evidence that an agreement existed, the court notes the great lengths plaintiff took in order to protect defendant’s anonymity. When plaintiff initially went to see her OB/GYN in 1993 about having her tubal ligation reversed, her OB/GYN recorded that the plaintiff wished to have more children with her husband and that her husband was in good health. N.T. 11/ 9/00 at 34. However, plaintiff stated at the time of that meeting, she and Paul Ferguson had been separated and had no contact. Id. at 35. The court wonders why the OB/GYN would have taken such notes if the plaintiff did not represent to her OB/GYN that she wanted more children with Paul Ferguson. In reality, the plaintiff never revealed to her OB/GYN that she and Paul Ferguson had been separated for years. Id. at 37.

During her consultations with Dr. Dodson in September 1993, plaintiff continuously kept defendant’s identity a secret. Plaintiff told Dr. Dodson that she was in a stable, 15-year marital relationship with her husband, and that the two of them desired another child. Id. at 38. Dr. Dodson described the man who accompanied plaintiff as a 35-year-old male who was the father of her two children. Id. At the time of this initial meeting, Paul Ferguson was indeed 35 years old, whereas the defendant was still in his twenties. Dr. Dodson also elicited information from the man who was with plaintiff at the appointment. Dr. Dodson noted that the husband smoked cigarettes. Id. at 40. Plaintiff admitted that defendant did not smoke cigarettes. Id. (N.T. 8/20/01 at 31.) Dr. Dodson noted that the husband did not drink alcohol. Id. However, plaintiff admitted that defendant drank alcohol. Id. It is this court’s opinion that the defendant was not present during the interview with Dr. Dodson, and in fact, plaintiff fabricated her testimony that the defendant was there.

The report on the sperm analysis contained Paul Ferguson’s name. Id. at 43. Defendant concedes that he may have submitted samples prior to the actual donation. N.T. 8/20/01 at 31. However, even if defendant did submit samples for testing, plaintiff still chose to keep defendant’s anonymity by not correcting the name on the report. When plaintiff and defendant went to the hospital on February 14, 1994, plaintiff instructed to the defendant that he was to present himself as Paul Ferguson in case anyone asked his identity; the reason being that plaintiff knew Dr. Dodson only performed IVF procedures with married couples and she wished to keep her misrepresentations secretive. N.T. 8/20/01 at 29. Finally, plaintiff made a conscious decision to put Paul Ferguson on the birth certificates as the father.

From these occurrences, it is obvious that the plaintiff went to great lengths to conceal defendant’s identity, which was an essential part of her agreement with the defendant. Plaintiff continuously asserted that she merely let her health care providers assume who would be the father of her desired children, and whether or not she was even married. Id. at 34, 38, 39, 44, 48. If she and defendant were so happy and excited about having a child together, why did she not simply give the correct information about who the defendant was? Plaintiff is also estopped from arguing that she could not reveal to Dr. Dodson her plans to do the IVF procedure with someone other than her husband, because Dr. Dodson’s staff informed her that one of Dr. Dodson’s colleagues would perform the IVF procedure with her and someone other than her husband. Dodson deposition at 36-37. Indeed, if plaintiff and defendant did not have this agreement emphasizing defendant’s anonymity, why did they not retain a physician who was willing to perform the IVF procedure despite the fact they were unmarried? The parties wished defendant’s identity to be kept secretive, and only in 1999, when the twins were five years old, did the plaintiff wish to rescind that anonymity. The court finds that plaintiff actively sought to conceal defendant’s anonymity in furtherance of their agreement.

In finding that a valid contract existed between the parties, the remaining inquiry for the court is whether the contract is enforceable. The court is cognizant of the Superior Court’s reinforcing that “a parent cannot bind a child or bargain away that child’s right to support.” Kesler v. Weniger, 744 A.2d 794, 796 (Pa. Super. 2000). The court notes Judge Beck’s concurring opinion in which she explained that the growing “legal and ethical complexity” in the realm of reproduction mandates that the courts should not comprehensively preclude all contracts of this nature, but refrain from doing so given the unique circumstances in a particular case. Id. at 796.

The court believes that what Judge Beck was referring to is squarely before this court. Obviously, this is not a simple contract case. Rather, it is the far from ordinary facts placed before the court that has led us to hold accordingly. Had the plaintiff’s pregnancy begun by way of intercourse, we would have had no difficulty adhering to the ruling in Kesler and found the defendant liable.

The use of artificial insemination has become widespread and the essence of a clinical donor is that the donor’s identity remains anonymous. In accordance with this concept, the parties chose to keep defendant’s identity confidential throughout the IVF procedure and beyond. That anonymity remained intact until defendant’s brother noticed plaintiff’s obvious condition and plaintiff admitted to him that defendant was the donor. Sperm donors are commonly used in this country. The nature by which donors give their sperm for the use in artificial insemination is contractual, albeit most often the parties retain their anonymity. The fact that defendant was not totally anonymous in the end does not change the contractual nature of his relationship with the plaintiff. We agree with the defendant that if the use of donors in artificial insemination proceedings is permitted in the Commonwealth of Pennsylvania, the donor should be protected from liability to the donee, regardless of whether his identity is actually known to the donee.

Nevertheless, this court cannot ignore and callously disregard the interests of the unheard-from third party; a party who without their privity to this contract renders it void. No other party, albeit a parent, can bargain away a child’s support rights. Although we find the plaintiff’s actions despicable and give the defendant a sympathetic hue, it is the interest of the children we hold most dear. Accordingly, we hold that the defendant’s appeal from the Dauphin County Domestic Relations’ determination is denied, the defendant is the legal father of the twins, and he is obligated to pay child support to the plaintiff.

      . The troublesome aspect of this opinion is that the record, and the findings of this court, are that the plaintiff’s actions of fraud, deceit, lies and misrepresentations lulled this sperm donor into paternity and his concomitant financial responsibilities.

      . It was noted that the individual who accompanied the plaintiff was an African-American matching the description of her husband. The defendant herein is a Caucasian. Apparently, the hospital never noticed this inconsistency.


author: WETTICK JR., J.

text:
    Frost v. Perrigo Company

      C.P. of Allegheny County,
    no. GD01-3465.

      Alan M. Perer and Robert M. Haggard, for plaintiff.

      Clem C. Trischler, for defendants Perrigo Company and Giant Eagle Inc.

      Alice S. Johnston and Jonathan Price, for defendants Teva Pharmaceuticals USA Inc. and Copley Pharmaceuticals Inc.
    January 21, 2003
   WETTICK JR., J.

On October 20, 1997, Florence E. Frost died as a result of a hemorrhagic stroke. Shortly before the stroke, Ms. Frost had ingested an over-the-counter decongestant (Di-Bromm) which contained phenylpropanolamine (PPA). In this wrongful death and survivor action, the complaint of Scott N. Frost, administrator of the estate of Florence E. Frost, deceased (plaintiff) alleges that the ingestion of PPA was the cause of the stroke. Plaintiff’s complaint also alleges that Copley manufactured and Perrigo and Giant Eagle distributed the Di-Bromm which caused the stroke.

The lawsuit was commenced through the filing of a writ of summons on February 22, 2001. Thereafter, plaintiff filed a complaint raising the following counts: (1) negligence, (2) strict liability and tort, (3) fraud, deceit and intentional misrepresentation, (4) negligent misrepresentation, (5) express warranty, (6) implied warranty of merchantability, and (7) violations of consumer protection statutes.

Motions for partial summary judgment filed by defendants seeking dismissal of the tort claims based on a statute of limitations defense are the subject of this opinion and order of court.

Tort claims are governed by a two-year limitation period. Under Pennsylvania case law, the discovery rule does not apply to wrongful death and survival actions. Pastierik v. Duquesne Light Co., 514 Pa. 517, 526 A.2d 323 (1987). However, fraud or concealment that causes a plaintiff to relax his or her vigilance or deviate from his or her right of inquiry will serve as a basis for estopping the defendant from raising the statute of limitations defense in a wrongful death and survival action. Molineux v. Reed, 516 Pa. 398, 532 A.2d 792 (1987).

Defendants base their summary judgment motion on Pa.R.C.P. 1035.2 (2) which provides that summary judgment shall be granted if, after completion of discovery relevant to the motion, the party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action which in a jury trial would require the issues to be submitted to a jury. Under the case law, plaintiff has the burden proving concealment by evidence which is clear, precise, and convineing. Molineux v. Reed, supra. It is defendants’ position that the evidence upon which plaintiff relies cannot satisfy this burden.

Plaintiff relies on the following evidence to support his contention that defendants are estopped from raising the statute of limitations as a defense because defendants caused plaintiff to relax his vigilance and deviate from his right of inquiry.

Prior to his wife’s death, plaintiff learned that his wife had ingested Di-Bromm tablets on the day she became ill. Around the time of his wife’s death, plaintiff asked Dr. John Moossy (Ms. Frost’s treating physician who had performed emergency brain surgery on October 10, 1997) whether her stroke was caused by the Di-Bromm. Dr. Moossy stated that he was not aware of any connection between a hemorrhagic stroke and Di-Bromm.

Plaintiff relied on Dr. Moossy’s statement that there was no connection between this stroke and the ingestion of the Di-Bromm tablets. Consequently, plaintiff did not conduct any further inquiry as to whether there may have been a connection between the stroke and the Di-Bromm until October 2000 when he was shown a recent Newsweek article connecting strokes with PPA. The Newsweek article was based on a recently released Yale University study that linked PPA with an increased risk of hemorrhagic stroke in women. After reading the Newsweek article, plaintiff obtained a copy of the Yale study, he retained counsel, and he instituted this lawsuit on February 22, 2001.

In order to extend the statute of limitations for the tort claims from the date upon which it would have otherwise expired (October 20, 1999), plaintiff must establish that defendants committed acts of concealment upon which the plaintiff justifiably relied.

In Lange v. Burd, 800 A.2d 336, 339 (Pa. Super. 2002), the Superior Court described the concealment doctrine as follows:

“A cause of action for negligence is governed by a two-year statute of limitations. 42 Pa.C.S. §5524(2). It is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period. Cappelli v. York Operating Co. Inc., 711 A.2d 481, 485 (Pa. Super. 1998) (quoting Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992)). Where a defendant or his agent misleads the plaintiff as to the identity of the proper defendants until after the statute of limitations has expired, the proper remedy is to toll the statute of limitations. Hubert v. Greenwald, 743 A.2d 977, 981 (Pa. Super. 1999). If through fraud or concealment the defendant causes the plaintiff to relax his or her vigilance or deviate from his or her right of inquiry, the defendant is es-topped from invoking the bar of the statute of limitations. Molineux v. Reed, 516 Pa. 398, 403, 532 A.2d 792, 794 (1987). The defendant must have committed some affirmative independent act of concealment upon which the plaintiffs justifiably relied. Kingston Coal Co. v. Felton Mining Co. Inc., 456 Pa. Super. 270, 690 A.2d 284, 291 (1997). Mere mistake or misunderstanding is insufficient. Molineux. Also, mere silence in the absence of a duty to speak cannot suffice to prove fraudulent concealment. Sevin v. Kelshaw, 417 Pa. Super. 1, 9, 611 A.2d 1232, 1236 (1992). The burden of proving such fraud or concealment, by evidence which is clear, precise and convincing, is upon the asserting party. Nesbitt v. Erie Coach Company, 416 Pa. 89, 204 A.2d 473 (1964).” (emphasis added)

Also, see Molineux v. Reed, supra, 516 Pa. at 402-403, 532 A.2d at 794:

“The governing principles relevant to the establishment of a claim of estopped based on fraud or concealment are as follows. Where, ‘through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry,’ the defendant is estopped from invoking the bar of the statute of limitations. Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963). Moreover, defendant’s conduct need not rise to fraud or concealment in the strictest sense, that is, with an intent to deceive; unintentional fraud or concealment is sufficient. Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967); Nesbitt v. Erie Coach Company, 416 Pa. 89, 204 A.2d 473 (1964). Mere mistake, misunderstanding or lack of knowledge is insufficient however, Schaffer v. Larzelere, supra; and the burden of proving such fraud or concealment, by evidence which is clear, precise and convincing, is upon the asserting party. Nesbitt v. Erie Coach Company, supra.”

It is plaintiff’s position that the evidence will show that prior to the date of Ms. Frost’s death, defendants knew that the ingestion of medicine with PPA created an increased risk of hemorrhagic stroke in women. However, they neither included, nor made an effort to include, a warning regarding the increased risk of stroke in their package inserts or labels.

While defendants contend that the evidence does not support a finding that they knew of any connection between PPA and an increased risk of stroke, it is also the position of defendants that the failure to include a known risk on a label or package insert is not sufficient to establish concealment because silence is not an act of concealment. However, silence is not an act of concealment only where there is no duty to disclose. Lange v. Burd, supra. Where, as in the present case, there is a duty to disclose known risks, the failure to do so constitutes an affirmative independent act of concealment, assuming the drug manufacturer or distributor knows of the risk.

Furthermore, in this case the failure to include a known risk on the label or packaging insert may constitute an act of concealment upon which plaintiff justifiably relied (the second requirement for the concealment doctrine). According to plaintiff’s testimony, he would have discovered the connection between DiBromm and strokes if this information had been included on the label or the package inserts. Also, a fact-finder may conclude that Dr. Moossy would have known, as of the date of Ms. Frost’s death, that Di-Bromm may have caused her stroke if a connection between PPA and strokes was set forth on labels or packaging inserts of medicine containing PPA.

I next consider whether the evidence which plaintiff has submitted may support a finding that defendants knew that the ingestion of medicine containing PPA would increase the risk of hemorrhagic stroke.

In his brief, plaintiff refers to what defendants knew or should have known. Plaintiff relies on the affidavit of Dr. Donald H. Marks to support his contention that defendants knew or should have known that an increased risk of stroke was associated with the use of medicine containing PPA. In the affidavit, Dr. Marks refers to at least 883 articles published in the medical literature and scores of pharmacological treatises; 37 articles cited by the Yale study (all but four were published between 1979 and 1997); and adverse PPA reaction reports referred to by the FDA. Dr. Marks concludes that in the face of this type of industry-wide information, “the manufacturers/ sellers intentionally and lor unintentionally concealed the true risk of PPA from not only the public but from the medical profession by the following actions which are not all inclusive.” (emphasis added) (Exhibit 4 to plaintiff’s brief in opposition, Marks’ affidavit at 5-6.)

In his brief, plaintiff’s counsel, after summarizing the information in the exhibits, states that defendants “are chargeable with having knowledge of the PPA/stroke risk long before Florence Frost died” (emphasis added) (plaintiff’s brief in opposition at 17); defendants have a common-law duty to know of the risks and dangers posed by their product (id. at 18); and defendants failed to warn the medical profession or the public of the danger “[d] espite clearly having knowledge of the stroke risk associated with their PPA products — or at the very least having an obligation to know of this risk. ” (emphasis added) Id.

A finding as to what defendants should have known will not support the application of the concealment doctrine because a mistake or misunderstanding (i.e., a negligence standard) is not sufficient to trigger the concealment doctrine. The concealment doctrine requires a finding of an affirmative act of concealment which caused the plaintiff to relax his vigilance. In this case, this requires a finding that defendants had actual knowledge of a risk that the label or package insert should have described — i.e., an increased risk of hemorrhagic stroke. See Lange v. Burd, supra, 800 A.2d at 339 (citation omitted) (“The defendant must have committed some affirmative independent act of concealment upon which the plaintiffs justifiably relied. . . . Mere mistake or misunderstanding is insufficient.”); Molineux v. Reed, supra, 516 Pa. at 403, 532 A.2d at 794 (“Mere mistake, misunderstanding or lack of knowledge is insufficient...”).

Since I am ruling that the standard is not what defendants should have known but rather whether defendants had actual knowledge that the label or package inserts describing their medicine did not include a risk that should have been included, plaintiff shall file a supplemental brief, which discusses the evidence that plaintiff will offer to support a finding of actual knowledge under a clear, precise, and convincing standard of proof. The brief shall specifically describe as to each defendant the precise evidence upon which plaintiff relies to support a finding of actual knowledge that medicine containing PPA increases the risk of hemorrhagic stroke.

Defendants argue that even if it can be established that they had actual knowledge that their labels and package inserts omitted a known risk of which they were aware, the concealment doctrine cannot apply because of the evidence which plaintiff has offered in support of his position as to what defendants knew or should have known. According to defendants, the concealment doctrine cannot apply where there is the vast amount of information available to the public, described in Dr. Miller’s affidavit, allegedly linking strokes to products containing PPA.

This argument would have merit if I was considering the discovery rule. However, under the concealment doctrine, plaintiff’s claim is that the defendants’ concealment (in this case, the withholding of what they were required to disclose) caused plaintiff not to exercise the diligent investigation that should have been undertaken. It is for a trier of fact to determine whether reliance on a label that did not include the risk of stroke justified plaintiff’s failure not to further explore the possibility of a link between Di-Bromm and his wife’s stroke. For these reasons, I enter the following order of court:

ORDER

On January 21, 2003, upon consideration of defendants’ motion for partial summary judgment, it is hereby ordered that:

(1) within 30 days, plaintiff shall file a supplemental brief as described in the opinion accompanying this order of court; and

(2) within 15 days, defendants shall file a reply brief.

      . In deciding whether plaintiff has met this burden, I must consider the evidence in the light most favorable to plaintiff.

      . This information is also contained in the medical records.

      . Also, prior to his wife’s death, plaintiff read the package inserts; there was no reference to an increased likelihood of strokes.

      . Ralph I. Horwitz M.D. et al., Phenylpropanolamine and Risk of Hemorrhagic Stroke: Final Report of the Hemorrhagic Stroke Project (New England Journal of Medicine, November 2000).

      . The affidavit is accompanied by an appendix containing exhibits A-U and a supplemental appendix containing exhibits A and B.

      . While actual knowledge can be established through circumstantial evidence, evidence that supports a finding of what a party should have known does not necessarily support a finding of what a party actually knew.


author: BARATTA, J.,

text:
    Silviotti v. Linder

      C.P. of Northampton County,
    no. 1998-C-5503.

      William Coffin, for plaintiff.

      Charles Banta, for defendant Linder.

      Frank Baker III, for defendant Staples.

      Frank Lachat, for defendant Corporate Express.
    January 13, 2003
   BARATTA, J.,

STATEMENT OF REASONS

Presently before the court is plaintiff’s, Diane Silviotti’s, petition to amend her complaint to allow a jury trial.

The instant matter was initiated by plaintiff’s complaint on My 23, 1998. Thereafter, various pleadings were circulated among the parties. At a status conference held September 7,1999, the Honorable Richard D. Grifo entered an order of court declaring the pleadings closed.

In the spring of 2000, the parties appeared for pretrial conference. Nowhere in the pleadings or her pretrial memorandum is there any request for a jury trial.

On June 18, 2002, plaintiff filed a petition seeking to amend her complaint in order to clarify her request for damages. In plaintiff’s initial complaint, plaintiff alleged that she suffered from severe depression, loss of sleep and loss of use of bodily function and that she incurred severe shock to her nerves and nervous system, and mental anguish. (See complaint ¶16.) Plaintiff now seeks to amend her complaint to expand her claim for damages to include a claim for post-traumatic stress syndrome (proposed ¶17) and incontinence, nightmares and flashbacks of emotional trauma. (Proposed ¶18.) The defendants responded to the amendment indicating that they opposed the amendment but, they acknowledged that the proposed clarification of damages fell within the umbrella of mental anguish that had been pled in paragraph 16 of the original complaint. Therefore, the defendants argued that, not only was the request to amend untimely, but there was no need for the request.

Although the June 18, 2002 petition to amend did not reference a request to include a demand for a jury trial, plaintiff has since expanded her petition to amend the complaint to include a demand for a jury trial.

A hearing was subsequently held by this court on the issue of whether a waiver of jury trial is binding and irreversible. This order addresses the jury trial waiver issue only, as the request to amend the complaint to include post-traumatic stress, incontinence and other emotional trauma is moot, as we find that the original complaint permits the plaintiff to pursue recovery for those damages.

I. Legal Standard

Pennsylvania Rule of Civil Procedure 1007.1 provides in pertinent part:

“Jury trial. Demand. Waiver
“(a) In any action in which the right to jury trial exists, that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than 20 days after service of the last permissible pleading. The demand shall be made by endorsement on the pleading or by a separate writing.” Pa.R.C.P. Rule 1007.1(a).

The failure to make a timely demand for a jury trial can result in the denial of a jury trial, however, where no inconvenience or prejudice will result from the delay in requesting a jury trial or where the party did not knowingly waive the right to a jury trial, such late filing may be allowed. See Seck-Minnerly Group Inc. v. Matthews International Corp., 13 D.&C.3d 149 (Allegheny Cty. 1980); Keisling v. Carlynton School District, 99 Pa. Commw. 201, 512 A.2d 1346 (1986), appeal denied, 513 Pa. 636, 520 A.2d 1386 (1987).

The right to a jury trial involves a constitutional right, as such it has been suggested that the courts be flexible in permitting delayed demands for jury trials. See Dauphin Deposit Bank & Trust Co. v. Pifer, 383 Pa. Super. 275, 556 A.2d 904 (1989); Hawley Bank v. Santini, 256 Pa. Super. 203, 389 A.2d 671 (1978). It should be noted that “[t]he time prescribed by any rule of civil procedure for the doing of any act may be extended or shortened by written agreement of the parties or by order of court.” See Pa.R.C.P. 248.

A jury trial may be waived expressly or by implication by a failure to follow the method prescribed for determining that the parties desire it. See Wright v. Barber, 270 Pa. 186, 113 A. 200 (1921); Neely v. J. A. Young & Co Inc. 198 Pa. Super. 196, 181 A.2d 915 (1962); Warden v. Zanella, 283 Pa. Super. 137, 423 A.2d 1026 (1980). A trial by jury is deemed waived unless it is affirmatively requested. Beach v. Burns International Security Services, 406 Pa. Super. 160, 593 A.2d 1285 (1991).

A party may withdraw their waiver of a jury trial with the discretion of the court. See Rodney v. Wise, 347 Pa. Super. 537, 500 A.2d 1187 (1985).

A court should not deny the right to a jury trial to a party who has not knowingly waived this right, in the absence of prejudice to an adverse party or inconvenience to the court. See Keisling v. Carlynton School District, 99 Pa. Commw. 201, 512 A.2d 1346 (1986).

II. Discussion

Rule 1007.1 of the Pennsylvania Rules of Civil Procedure does not explicitly bar a trial court from allowing an untimely jury demand. “[T]he right to trial by jury is not a ‘ substantive right, ’ but a right of procedure through which rights conferred by substantive law are enforced.” Commonwealth v. Sorrell, 500 Pa. 355, 361, 456 A.2d 1326, 1329 (1982). As a procedural right, the right to trial by jury allows for some flexibility in its application when dealing with delayed demands for jury trial. Hawley Bank v. Santini, 256 Pa. Super. 203, 389 A.2d 671 (1978); see also, 7 Std.Pa.Prac.2d. §42:6.

Rule 126 of the Pennsylvania Rules of Civil Procedure encourages the liberal construction and application of the rules whereby a court may disregard any error or defect in procedure which does not affect the substantial rights of a party. The Pennsylvania Supreme Court discussed Rule 126 in Pomerantz v. Goldstein, 479 Pa. 175, 178-79, 387 A.2d 1280, 1281-82 (1978) (citations omitted), where the court stated:

“Procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives ...
“Rule 126 not only expresses the reasons why our rules are to be liberally construed — to ensure that justice is accorded the parties to a lawsuit — but also permits us to disregard procedural errors which do not affect substantial rights.”

In Dauphin Deposit Bank and Trust Co. v. Pifer, 383 Pa. Super. 275, 280, 556 A.2d 904, 906 (1989), the Pennsylvania Superior Court discussed the criteria for addressing an untimely jury demand. In Pifer, supra, the lower court permitted the plaintiff’s request for jury trial made on the date the non-jury trial was to commence. The Superior Court affirmed the lower court’s decision, apparently finding that the lower court’s determination was an exercise of discretion and absent any inherent prejudice, the untimely grant of a jury trial was harmless error.

However, we note that the court in Pifer, supra, stated that neither Rule 126 nor the dicta in Pomerantz, suggest that “full compliance with the rules of procedure is not required or that failure to do so is without peril. The administration of justice requires the efficient operation of the judicial system with compliance with the rules of procedure a necessity . . ., but the rules cannot ‘be accorded the status of substantive objectives requiring rigid adherence.’...” Dauphin Deposit Bank and Trust Co. v. Pifer, 383 Pa. Super. 275, 280, 556 A.2d 904, 906 (1989). The court in Pifer, supra, also held that prejudice to either side plays no part in enforcing a waiver of a jury trial where the provisions of Rule 1007.1(a) have not been met.

In the instant matter, plaintiff asserts that she had instructed her counsel that she had wanted a jury trial. Plaintiff insists that she has always wanted a jury trial. Plaintiff contends that the failure of her counsel to demand a jury trial on her behalf should not be binding. Therefore, plaintiff argues that she had not, at any time, waived her right to a jury trial.

Plaintiff also notes that there would be no prejudice to defendants should her request for a jury trial be granted.

We note that under Pifer, the lack of prejudice to either side should not be a factor in our determination; however, had the defendants asserted a claim for prejudice, we would have been reluctant to further consider plaintiff’s request.

In response, the defendants argue that plaintiff never demanded a jury trial as required by Rule 1007.1 The pleadings were ordered closed on September 7, 1999. Therefore, the period in which plaintiff may demand a jury trial, 20 days from the date of service of the last pleading, has long since passed.

The only reason offered by plaintiff for the failure to demand a jury trial is the error or inadvertence of her counsel.

We note that in L. B. Foster Co. Inc. v. Brumfield, 12 D.&C.4th 646 (Allegheny Cty. 1991), Judge Wettick, sitting in the Court of Common Pleas of Allegheny County, cogently set forth the standard for the trial court in disposing of an untimely demand for a jury trial. Judge Wettick concluded that, absent showing of good cause by the plaintiff for the failure to demand a jury trial, the untimely demand should be denied.

Although we have no quarrel with Judge Wettick’s rationale, we also note that Dauphin Deposit Bank and Trust Co. v. Pifer recognizes that the decision is purely discretionary by the trial judge and it is not error for the lower court to pennit a last minute request for a jury trial.

We find plaintiff’s assertions that she had instructed her prior attorney to demand a jury trial to be credible. Further, because this is a personal injury action, we can see no tactical reason for prior counsel to seek a non-jury trial. Plaintiff has since dismissed prior counsel. Therefore, we find that plaintiff had never intended to waive her right to a jury trial and that the alleged waiver by omission, caused by prior counsels failure to act, should not deny plaintiff her constitutional right to a jury trial.

Therefore, we will permit plaintiff, even at this late date, to pursue her constitutional right to a jury trial. We grant plaintiff’s request to amend her complaint to demand a jury trial.

ORDER

And now, January 13, 2003, the plaintiff’s petition to amend her complaint to allow a jury trial is hereby granted.

      . Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367, 374 (1985), citing Commonwealth v. Bonacurso, 500 Pa. 247, 455 A.2d 1175 (1983), cert. denied, 462 U.S. 1120 (S.Ct. 1983), “there is no inherent prejudice in proceeding to trial by jury as opposed to trial before a judge.”


author: WORTHINGTON, J.,

text:
    Breen v. Klein

      C.P. of Monroe County,
    no. 194 Civil 2001.

      John B. Dunn, for plaintiff.

      Eugene D. Sperazza, for defendant Pocono Surgical Associates.

      John R. Hill, for defendant Klein.

      November 26, 2002
   WORTHINGTON, J.,

Plaintiffs instituted this action for medical malpractice alleging that defendant Dr. Klein failed to exercise proper care in diagnosing and removing Timothy Breen’s inflamed appendix. Defendant Dr. Klein, as averred, never informed Mr. Breen, or his wife, of the difficulties which he had during surgery in January 1999, or that he did not remove the whole appendix. In May of 1999, Mr. Breen suffered another acute episode of appendicitis, was hospitalized and underwent a second appendectomy. Dr. Paul, defendant Dr. Klein’s business partner, then informed Mr. Breen that defendant Dr. Klein had not removed his entire appendix.

Plaintiffs filed a complaint on January 9, 2001. Preliminary objections were filed, which were sustained. An amended complaint was then filed. On February 27,2001, plaintiffs served on defendants, Pocono Surgical Associates and Dr. Klein, a set of interrogatories and requests for production of documents. On March 9, 2001, defendant Pocono Surgical Associates objected to plaintiffs’ interrogatory number 14. Defendant Dr. Klein made no objections. Neither defendant responded to the requests, and in mid-June plaintiffs’ counsel sent correspondence regarding its requests. Plaintiffs’ counsel received no answer to the correspondence and subsequently filed a motion to compel with this court. This court issued an order on July 11, 2001, in which a rule was issued upon both defendants, returnable to July 31, 2001.

Both defendants subsequently filed an answer to the rule but not the discovery. Plaintiffs then sought an argument on its motion to compel and the imposition of sanctions. An argument was scheduled for August 14, 2001, by order dated August 7,2001. On August 8,2001, counsel for both defendants faxed interrogatory answers to plaintiffs’ counsel.

This court issued an order on October 3, 2001, granting plaintiffs’ motion to compel answers to interrogatories. Defendant Dr. Klein submitted answers to plaintiffs’ interrogatories on December 6, 2001. On March 5, 2002, defendant Pocono Surgical Associates Inc. submitted its second supplemental answers to plaintiffs’ interrogatories.

On March 26, 2002, plaintiffs filed a motion for pretrial conference pursuant to Pa.R.C.P. §212.3. By order dated April 8, 2002, this court scheduled a pretrial conference for May 16,2002. On April 23, 2002, defendant Pocono Surgical Associates filed its answer to plaintiffs’ motion wherein it also requested a pretrial conference.

All parties filed a pretrial memorandum of law. On May 31,2002, defendant Dr. Klein filed a memorandum of law in opposition to plaintiffs’ pretrial memorandum. On August 20, 2002, plaintiffs filed a motion pursuant to Pa.R.C.P. §4006(a)(2). A rule was issued upon defendant Dr. Klein on August 23, 2002, to show cause why plaintiffs’ prayer for motion to dismiss his objections to plaintiffs’ interrogatories, Set II, should not be granted, returnable to September 19, 2002.

On September 10, 2002, plaintiffs filed a motion for sanctions pursuant to Pa.R.C.P. 4019(a)(l)(i) and (viii). By order dated September 12,2002, defendant Dr. Klein was compelled to provide a factually detailed “plain English” response and the reasons why defendant Dr. Klein’s association with Pocono Surgical Associates Inc. was terminated. On September 13, 2002, defendant Dr. Klein filed an answer and a memorandum of law in opposition of plaintiffs’ motion pursuant to Pa.R.C.P. §4006(a)(2). On October 30, 2002, plaintiffs filed a memorandum of law in support of their motion pursuant to Pa.R.C.P. §4006(a)(2). Arguments were heard on November 4, 2002.

We are now ready to dispose of this matter.

DISCUSSION

Plaintiffs contend that defendant Dr. Klein’s objections to interrogatories should be dismissed and that defendant Dr. Klein should be required to answer said interrogatories as the answers are relevant given recent developments concerning the litigation between defendant Dr. Klein and Dr. Paul. Conversely, defendant Dr. Klein asserts that answers are not required as they are immaterial and therefore not relevant to the issues raised in the underlying negligence action since the treatment was rendered in January 1999.

“Rule 4003.1. Scope of discovery generally. Opinions and contentions
“(a) Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter.
“(b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Pa.R.C.P. §4003.1(a) & (b).

Pennsylvania Rules of Civil Procedure §4005(c) provides, in pertinent part:

“Rule 4005. Written interrogatories to a party
“(c) Interrogatories may relate to any matters which can be inquired into under Rules 4003.1 through 4003.5 inclusive ... .” Pa.R.C.P. §4005(c).

In the instant case, plaintiffs’ counsel recently learned of litigation between defendant Dr. Klein and his former business partner, Dr. Paul, concerning the termination of the parties’ business partnership. The litigation specifically referenced the issue of defendant Dr. Klein’s alleged disability. Dr. Paul’s complaint alleged, inter alia, that as of May 11, 2000, defendant Dr. Klein suffered from a disability thereby rendering him unable to perform his normal duties on a full-time basis in accordance with the employment agreement.

As a result of ascertaining this information, plaintiffs believe it is necessary and appropriate to determine the nature and extent of defendant Dr. Klein’s alleged disability, prior symptoms and/or conditions which may have existed at the time of Mr. Breen’s appendectomy. As a result, plaintiffs furnished defendant Dr. Klein with a total of nine new interrogatories pertaining to the alleged disability.

Defendant Dr. Klein objected to these interrogatories on the grounds that they are irrelevant. We disagree.

Plaintiffs want to determine if defendant Dr. Klein was symptomatic of the alleged disability at the time of plaintiff Mr. Breen’s appendectomy. To establish a case of professional negligence, the patient is required to show that the professional conduct of the patient’s doctor fell below the standards of reasonable medical practice and that the patient’s injuries were caused by the failure to adhere to such standards. Tarter v. Linn, 369 Pa. Super. 155, 578 A.2d 453 (1990). Whether or not defendant Dr. Klein was symptomatic of the alleged disability at the time of plaintiff’s surgery is relevant to establish a case of professional negligence in that defendant Dr. Klein’s professional conduct of operating while symptomatic of an alleged disability would fall below the standards of reasonable medical practice. As a result, the answers to interrogatories may, as Pa.R.C.P. §4003 provides, lead to the discovery of admissible evidence.

However, as the scope of the submitted interrogatories is overly broad, we will limit said interrogatories to the period of time that is relevant in this matter.

For the reasons set forth above, we enter the following:

ORDER

And now, November 26,2002, after argument on plaintiffs’ motion to dismiss defendant’s objections to interrogatories, same is granted in part and denied in part. Following review of the record and briefs submitted, it is hereby ordered:

(1) Plaintiffs’ interrogatories are limited as follows:

(a) Did you become disabled, either partially or fully, at any time since January 1999?

(b) If the preceding interrogatory was answered in the affirmative, please list the nature and extent of any disability and the date on which you first sought or received treatment.

(c) Has any doctor or other medical professional rendered an opinion since January of 1999 as to your physical or mental ability to engage in the practice of general and vascular surgery?

(d) If the answer to the previous interrogatory is in the affirmative, please indicate the name and address of that doctor or professional and the date upon which the opinion was rendered.

(e) Did any of the symptoms related to the disability exist in January of 1999? If so, please describe the nature of the symptoms and/or conditions and the date(s) upon which they occurred.

(f) At any time since 1995, has any professional(s), medical or otherwise, recommended that you either limit medical practice or withdraw, even temporarily, from the active practice of medicine. If the answer is in the affirmative, please list the name(s) of the profes sional(s) and their address(es).

(2) Defendant Dr. Klein shall serve upon plaintiffs’ counsel full and complete answers to the above interrogatories, within 10 days of this order or suffer such sanctions as this court may thereafter deem appropriate.

(3) All other interrogatories contained in plaintiffs’ request dated July 9, 2002, are denied.