author: MOTTO, P.J,

text:
    Parchman v. DeFelice

      Daniel I. Herman, for plaintiff.

      Leo Stepanian, for defendant.

      October 19, 2005
   MOTTO, P.J,

Before the court are plaintiff’s objections to the issuance of subpoenas.

This action arises from an automobile accident that occurred on April 26, 2002. Plaintiff alleges that as a result of this accident, defendant is liable for injuries plaintiff suffered as well as wage loss and out-of-pocket medical expenses. Additionally, plaintiff claims that her first-party benefits have been exhausted.

Defendant sent plaintiff’s counsel a letter indicating notice of intent to serve subpoenas upon Geico Insurance, Mountain Laurel Assurance Company and Eckerd Drug. Plaintiff has filed objections to the issuance of the subpoenas on the grounds that the information sought is too remote in time, not relevant, duplicative and excessive and unnecessary.

Pa.R.C.P. 4009.21 states:

“(a) A party seeking production from a person not a party to the action shall give written notice to every other party of the intent to serve a subpoena at least 20 days before the date of service. A copy of the subpoena proposed to be served shall be attached to the notice.

“(c) Any party may object to the subpoena by filing of record written objections and serving a copy of the objection upon every party to the action....

“(d)(1) If objections are received by the party intending to serve the subpoena prior to its service, the subpoena shall not be served. The court upon motion shall rule upon the objections and enter an appropriate order.” Pa.R.C.P. 4009.21(a), (c) and (d)(1).

Limitations regarding discovery are stated inPa.R.C.P. 4003.1(a) and Pa.R.C.P. 4011. Pa.R.C.P. 4003.1(a) provides that:

“[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 the claim or defense of any other party . . . .” Pa.R.C.P. 4003.1(a). Rule 4011 states:

“No discovery or deposition shall be permitted which:

“(a) is sought in bad faith;

“(b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party;

“(c) is beyond the scope of discovery as set forth in Rules 4003.1 through 4003.6;

“(d) Rescinded ...;

“(e) would require the making of an unreasonable investigation by the deponent or any party or witness;

“(f) Rescinded ....” Pa.R.C.P. 4011.

Defendant seeks a first-party benefit file from Mountain Laurel Assurance Company for an accident that occurred on April 25,1998, approximately four years prior to the underlying accident. Plaintiff alleges that the amount of time that has lapsed between the injury stemming from the April 25, 1998 accident and the current injury is so remote as to make the review of any such information not conceivably useful in any manner. The court does not agree with plaintiff’s argument. The prior accident occurred only four years prior to the current accident and apparently involved the same part of the body. These facts are not too remote nor do they appear to be outside the scope of the rules. Therefore, plaintiff’s objection to the subpoena of records from Mountain Laurel Assurance Company is dismissed.

In regard to the subpoena involving Geico Insurance, plaintiff contends that defendant has already been provided with a complete copy of the file and therefore the requested information is duplicative. This argument is without merit as plaintiff is claiming that she has wage loss as well as out-of-pocket medical expenses. Therefore, defendant is entitled to this file to determine the exact amount of plaintiff’s medical expenses that were not covered. In addition, it appears that plaintiff is unable to verify the completeness and accuracy of Geico’s records, which Geico would be able to accomplish. Therefore, plaintiff’s objection to the subpoena of records from Geico Insurance Company is dismissed.

Finally, plaintiff objects to the subpoena for Eckerd Drug, requesting all prescription records of plaintiff. Plaintiff argues that unless the defendant can submit a request which protects the rights and interests of the plaintiff, then the court should not permit the defendant to obtain such information as it is outside the scope of relevance and it is outside the scope of discovery.

The Superior Court addressed privacy rights interests of individuals in such cases, where they stated:

“[I]n tort law we recognize a right to privacy that is not constitutionally based. In Forster v. Manchester, 410 Pa. 192, 189 A.2d 147 (1963), our Supreme Court defined the right as an ‘interest in not having [one’s] affairs known to others. ’Id., 410 Pa. at 194-98, 189 A.2d at 149-50. The invasion of privacy is actionable when there is an unreasonable and serious interference with one’s privacy interest. Nonetheless, an individual’s right to privacy is clearly qualified when that individual has filed suit for personal injuries. [Id.]” Moses v. McWilliams, 379 Pa. Super. 150, 159, 549 A.2d 950, 954-55 (1988). (emphasis in original) (footnote omitted)

In the instant matter, plaintiff is making a claim that defendant is liable for loss of wages and out-of-pocket medical expenses, and that her first-party benefits have been exhausted. Again, the Rules of Civil Procedure say that, “a party may obtain discovery regarding any matter . . . which is relevant to the subject matter involved in the pending action...” and “[i]t is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery evidence.” Pa.R.C.P. 4003.1(a) and no. 4003(b).

It is apparent that the prescription records are relevant to the subject matter in the pending action, as part of her claim is based on loss of out-of-pocket medical expenses. Further, it is not ground for objection that the prescription records sought will be inadmissible at trial, if the prescription records sought are reasonably calculated to lead to the discovery of evidence. Therefore, plaintiff’s objection to the subpoena of records from Mountain Laurel Assurance Company is dismissed, except that such request shall be limited to the time period from and after April 25, 1998, the date of plaintiff’s prior accident.

ORDER

And now, October 19, 2005, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that plaintiff’s objection to the issuance of subpoenas are dismissed, provided, however, that the records discoverable from Eckerd Drug shall be limited to the time period from and after April 25, 1998.


source: Caselaw Access Project

author: ABRAMSON, J.,

license: Public Domain

text:
    Atlantic States Insurance Co. v. Hunt

      Richard J. Perr, for plaintiff.

      George G. Rassias, for defendant.
    September 19, 2005
   ABRAMSON, J.,

FINDINGS OF FACT

(1)-(15) The Joint Stipulation of Facts is incorporated herein by reference. (See court exhibit.)

(16) Specifically, the following facts are undisputed: Defendant Patrick Hunt never returned the telephone calls from D. Scott Bonebrake, the attorney provided to Hunt by Atlantic States Insurance Company under the insurance policy; Hunt did not verify the answer prepared on Hunt’s behalf by Bonebrake; Hunt did not appear for his scheduled deposition on January 6, 2003; Hunt did not provide any information to Bonebrake so that Bonebrake could respond to discovery propounded upon Hunt; and Hunt did not respond to nine separate letters of correspondence from Bonebrake over a four-month period.

(17) It is also undisputed that Hunt is the only known witness to the motor vehicle accident at issue in the underlying action (Rugh v. Hunt and Bullard Co., January term 2003, no. 3661), other than the plaintiff in that action, Kimberly Rugh.

(18) The court takes judicial notice of its own records, specifically that Atlantic States’ complaint against Hunt was served and accepted by Hunt on February 26,2004, at 509 Lehan Circle, Springfield, PA 19064. Furthermore, the notice of default judgment was also sent to Hunt at the same address, 509 Lehan Circle, Springfield, PA 19064.

(19) While not of record, it is significant that the letters of correspondence sent to Hunt were addressed to Hunt at the same address as above, 509 Lehan Circle, Springfield, PA 19064.

(20) The policy at issue requires the insured to “[cjooperate with us in the investigation, settlement or defense of the claim or ‘suit.’ ” See the policy at section IV.A.2.b.(3).

(21) Hunt has materially breached his duty to cooperate as outlined under the policy.

CONCLUSIONS OF LAW

(1) The issue of whether there has been a material breach of the insured’s duty to cooperate is for the finder of fact to decide. See State Farm Mutual Automobile Insurance Co. v. American Independent Insurance Co., 2005 Phila. C.C.P. Lexis 303, *5, Commerce Program, Sheppard, J. (2005).

(2) By way of a cooperation clause in an insurance policy, “an insured binds itself to assist the insurer folly in its handling of the claim and agrees to take no action which would vitiate a valid defense.” Forest City Grant Liberty Associates v. Genro II Inc., 438 Pa. Super. 553, 559, 652 A.2d 948, 951 (1995).

(3) “Although a breach of a duty to cooperate will relieve the insurer from liability under the policy, a failure to cooperate must be substantial and will only serve as a defense where the insurer has suffered prejudice because of the breach.” Forest City, 438 Pa. Super, at 559, 652 A.2d at 951. See Conroy v. Commercial Casualty Insurance Co., 292 Pa. 219, 224, 140 A. 905, 907 (1928) (“to escape liability, the insurer must show that the breach is something more than a mere technical departure from the letter of the bond — that it is a departure that results in a substantial prejudice and injury to its position in the matter”); Federal Kemper Insurance Co. v. Johnson, 21 D.&C.3d 724, 728 (1981) (“[t]o be relieved of its obligation to indemnify and defend its insured on the basis of the insured’s failure to cooperate, the insurer must prove breach of the cooperation clause and show substantial prejudice and injury to its position”).

(4) “An insured’s duty to cooperate is breached where the insured neglects to disclose information needed by the insurer to prepare a defense, does not aid in securing witnesses, refuses to attend hearings or to appear and testify at trial or otherwise fails to ‘render all reasonable assistance necessary to the defense of the suit.’ ” Forest City, 438 Pa. Super, at 559-60, 652 A.2d at 951-52.

(5) Prejudice can be shown where the lack of cooperation “fails to allow the insurance company to participate meaningfully in legal proceedings that may result in its payment of the claim at issue.” Champion v. Chandler, 1999 U.S. Dist. Lexis 15824, *6 (E.D. Pa. 1999).

(6) Atlantic States has sufficiently shown that Hunt’s breach of his duty to cooperate has caused substantial prejudice to Atlantic States’ position to defend Hunt in the underlying action. His conduct on the night of the action is the sole basis on which liability turns. Hunt has not provided any information to Atlantic States regarding the accident, so Atlantic States is unable to provide a meaningful defense. See Conroy, 292 Pa. at 225-26, 140 A. at 907-908 (“If the insured refuses to give any information, so that the company is unable to make defense, it cannot be said there is cooperation, and in that case a recovery should be denied .... The same is true if he absents himself so that his evidence cannot be taken advantage of’), (citations omitted)

(7) Since Hunt is the only witness to the accident (besides Rugh), his account of the night in question is crucial in order for Atlantic States to properly defend Hunt. See Prudential Property & Casualty Co. v. Erie Insurance Co., 660 F. Supp. 79, 82 (E.D. Pa. 1986), quoting Cameron v. Berger, 336 Pa. 229, 233, 7 A.2d 293, 295 (1939) (“[Defendant] was not only an essential witness ..., but the only witness for the defense, and [his] aid was necessary for the preparation and trial of the suit[] against [him], [His] voluntary disappearance left the [insurer] without a defendant and a defense. Under such circumstances [he] was precluded from indemnification under [the] policy.”).

FINDING

A declaratory judgment is entered in favor of plaintiff Atlantic States Insurance Company. An order consistent with this judgment will be issued.

ORDER

And now, September 19, 2005, it is hereby ordered and decreed that plaintiff Atlantic States Insurance Co. has no duty to defend or indemnify defendant Patrick Hunt in the action filed in the Court of Common Pleas for Philadelphia County at Rugh v. Hunt and Bullard Co., January term 2003, no. 3661.

      . The underlying action is a personal injury claim by Rugh against Hunt and the Bullard Company, Hunt’s employer.

      . It is of no consequence that Hunt did not personally accept service. Pennsylvania Rule of Civil Procedure 402 (“Manner of service. Acceptance of service”) provides that original process may be served “at the residence of the defendant to an adult member of the family with whom he resides; but if no adult member of the family is found, then to an adult person in charge of such residence.” According to the sheriff’s return of service, the complaint was served and accepted by an adult in charge of defendant’s residence. Therefore, Hunt is deemed to have personally accepted the complaint.


text:
    Integrated Project Services v. HMS Interiors Inc.

      Joel Gusky, for plaintiff.

      Joseph Gibley, Michael Flanagan and Kathleen Wilkinson, for defendant.
    June 13, 2005
   ABRAMSON, J.,

The court hereby reconsiders defendant HMS Interiors Inc.’s motion for judgment on the pleadings in light of the Supreme Court’s opinion in Bernotas v. Super Fresh Food Markets Inc., 581 Pa. 12, 863 A.2d 478 (2004). This case arises out of an accident at a construction site, and it concerns whether the prime contractor or the subcontractor should, ultimately, pay the damages connected with that accident.

Plaintiff Integrated Project Services (IPS) contracted with non-party Wyeth-Ayerst Inc. (the owner) to perform certain construction management work at the owner’s Marietta facility (the prime contract). IPS subcontracted with HMS to perform a portion of that work (the subcontract). During the course of performing the subcontract work, an employee of HMS, nominal defendant Joseph Lloyd, was injured. Mr. Lloyd brought suit against the owner and IPS and eventually recovered $ 1,440,000 from IPS and $360,000 from the owner (the underlying tort action).

In this litigation, IPS claims that, pursuant to the terms of the subcontract and the prime contract, HMS must indemnify IPS and the owner for the amounts they paid in connection with the underlying tort action. In the present motions, HMS argues that it never agreed to indemnify IPS for IPS’ own negligence nor to waive its immunity as Mr. Lloyd’s employer under the Workers’ Compensation Act.

In deciding the parties’ motions, the court is called upon to interpret the terms of the prime contract and the subcontract and to determine what is meant by them. Interpretation of the terms of a contract is a matter of law for the court. See Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 606, 735 A.2d 100, 106 (1999). “[W]hen a contract refers to a separate document, a court may examine the language of the other document to ascertain the intent of the parties.” West Development Group Ltd. v. Horizon Financial F. A., 405 Pa. Super. 190, 197, 592 A.2d 72, 75 (1991).

The indemnification provision of the subcontract attempts to incorporate by reference the indemnification provision of the prime contract. The subcontract between IPS and HMS provides as follows:

“[HMS] assumes entire responsibility and liability for any and all claims and/or damages of any nature or character whatsoever for which [IPS] shall be liable under the [prime contract]... with respect to the work covered by this subcontract and agrees to indemnify and save [IPS] and owner harmless from and against all claims, ... occurring in connection therewith to the same extent and obligation to which [IPS] has assumed towards owner under the [prime contract]... limited to the scope of the subject matter of this subcontract.” Complaint, exhibit B, ¶7.

IPS’ obligation under the prime contract is as follows:

“[IPS] shall indemnify, defend and hold harmless the owner from and against claims . . . arising out of or resulting from performance of the work... but only to the extent caused in whole or in part by negligent acts or omissions of [IPS] or any subcontractor . . . regardless whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.” Complaint, exhibit A, ¶3.12.1.

IPS asks the court to read the two contracts’ clauses together to find that HMS has agreed to indemnify and save IPS harmless from and against all claims, including those caused by the negligent acts or omissions of IPS. However, the Supreme Court recently held that “unless expressly stated, pass through indemnification clauses violate the long-standing policy underlying the rule narrowly construing indemnification provisions. When the provision sought to be ‘passed through’ involves indemnification for acts of another party’s negligence, the theory will not be applied unless the contract language is clear and specific. Sound public policy requires an unequivocally stated intention to be included in the subcontract for this particular type of provision to pass through from the general contract. The general language of a standard incorporation clause cannot trump the specific language of the subcontract, when the former supports indemnification for negligent acts but the latter is ambiguous regarding the circumstances under which indemnification will occur.” Bernotas v. Super Fresh Food Markets Inc., 581 Pa. 12, 863 A.2d 478, 484 (2004). See also, Greer v. City of Philadelphia, 568 Pa. 244, 248-49, 795 A.2d 376, 379 (2002) (An indemnifying party may be held liable for the damages attributed to another’s negligence only if the language of the [indemnification provision] clearly and unequivocally demonstrates that the indemnifying party intended to provide such indemnification. Such a rule is carefully designed to ensure that no party is unwittingly subjected to liability that is hazardous, unusual and extraordinary.); Ruzzi v. Butler Petroleum, 527 Pa. 1, 7, 588 A.2d 1, 4 (1991) (“if [the] parties intend to include within the scope of their indemnity agreement a provision that covers losses due to the indemnitee’s own negligence, they must do so in clear and unequivocal language. No inference from words of general import can establish such indemnification.”).

In this case, the subcontract does not contain an unequivocally stated intention to have HMS indemnify IPS for IPS’ own negligence; instead of being clear and specific, the subcontract is, at best, ambiguous on the issue. Therefore, HMS need not indemnify IPS for IPS’ own negligence.

In addition, HMS claims that it is not required to indemnify IPS for any harm that befell Mr. Lloyd because Mr. Lloyd was one of HMS’ employees, and HMS is immune from such liability under the Workers’ Compensation Act (WCA). Specifically, the WCA provides that

“In the event injury or death to an employee is caused by a third party,... the employer ... shall not be liable to a third party for damages, contribution or indemnity . .. unless liability for such damages, contribution, or indemnity shall be expressly provided for in a written contract....” 77 P.S. §481(b).

The courts have construed the WCA to mean that “a third party may not seek contribution or indemnity from the employer, even though the employer’s own negligence may have been the primary cause of the employee’s injury, . . . absent an express provision for indemnity in a written contract. . . . Case law has established that the indemnity provision in the Workmen’s Compensation Act must be construed strictly, and general indemnity language such as ‘any or all’ or ‘any nature whatsoever’ is insufficient.... [I]n order for an employer to be held liable in indemnification for injuries to its own employees caused by the negligence of the indemnitee there must be an express provision for this contingency in the indemnification clause.” Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 183-87, 619 A.2d 304, 306-308 (1993).

In this case, the subcontract does not contain an express waiver of HMS’ WCA immunity. Instead, as set forth above, the subcontract attempts to pass through to HMS the indemnification responsibilities outlined in the prime contract. The prime contract’s indemnification provisions include what purports to be a waiver by IPS of its and HMS’ WCA immunity vis-a-vis the owner. However, under the reasoning set forth in Bernotas, and the strict requirements of Bester, the subcontract’s pass through indemnification clause is not specific enough to create a waiver by HMS of its own WCA immunity visa-vis IPS.

CONCLUSION

For all the foregoing reasons, defendant’s motion for judgment on the pleadings is granted.

ORDER

And now, June 13, 2005, upon reconsideration of defendant HMS Interiors Inc.’s motion for judgment on the pleadings, both parties’ motions for disposition of unresolved issues, the responses thereto, the memoranda in support and opposition, and all other matters of record, and in accordance with the opinion filed contemporaneously herewith, it is hereby ordered that said motion for judgment on the pleadings is granted, and Count I of the complaint against HMS is dismissed.

      . The Pennsylvania Manufacturer’s Association Insurance Company (PMA) is also named as a defendant in this action. PMA apparently issued an insurance policy to HMS, which IPS claims did cover, or should have covered, IPS and the owner as well. As a result, IPS has brought claims against HMS for failure to obtain, and against PMA for failure to provide, such coverage. Such issues are not presently before this court.

      . The prime contract is also incorporated by reference in other provisions of the subcontract. See e.g., complaint, exhibit B, ¶6 (HMS agrees to “be bound to [IPS] by the terms of this subcontract and of the contract documents between the owner and [IPS] and shall assume towards [IPS] all of the obligations and responsibilities with respect to the work to be performed hereunder by [HMS] which [IPS], by the contract documents, assumes toward the owner.”).

      . The Prime Contract states that:
      “In claims against any person or entity indemnified under this paragraph 3.12 by an employee of [IPS or] a subcontractor..., the indemnification obligation under this 3.12 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for [IPS] or a subcontractor under workers’ or workmen’s compensation acts, disability benefit acts or other employee benefit acts.” Complaint, exhibit A, ¶3.12.2.

      . In its earlier ruling on HMS’ preliminary objections, the court found that the waiver of WCA immunity did pass through from the prime contract to the subcontract. However, the court did not have before it the Supreme Court’s views on pass through provisions, which were only recently set forth in Bernotas. Therefore, this court may revisit the issue in light of the change in the law. See Zane v. Friends Hospital, 575 Pa. 236, 243, 836 A.2d 25, 29 (2003) (“This general prohibition against revisiting the prior holding of a judge of coordinate jurisdiction, however, is not absolute. Departure from the rule is allowed in ‘exceptional circumstances’ when there has been a change in the controlling law or where there was a substantial change in the facts or evidence.”).


author: RUDNITSKY, Member,

text:
    Office of Disciplinary Counsel v. Werner

      Disciplinary Board Docket no. 202 D.B. 2003.
    April 27, 2005
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

RUDNITSKY, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On December 16,2003, Office of Disciplinary Counsel filed a petition for discipline against Arthur Joseph Werner, respondent. The petition charged respondent with violations of the disciplinary rules arising from allegations of client neglect, failure to return an unearned fee, and misrepresentations to Office of Disciplinary Counsel. Respondent filed an answer to petition for discipline on February 6, 2004.

A disciplinary hearing was held on May 3, 2004, before Hearing Committee 1.08 comprised of Chair John S. Summers, Esquire and Members Margarete E. Choksi, Esquire and Patrick C. Lord, Esquire. Respondent was represented by James P. Leonard, Esquire.

The Hearing Committee filed a report on January 12, 2005, finding that respondent engaged in violations of the disciplinary rules and recommending that he be suspended from the practice of law for a period of six months.

Petitioner filed a brief on exceptions to the Hearing Committee report on January 28, 2005.

This matter was adjudicated by the Disciplinary Board at the meeting of March 16, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid Rules of Disciplinaiy Enforcement.

(2) Respondent, Arthur Joseph Werner, was bom in 1956 and was admitted to practice law in the Commonwealth in 1982. He maintains his office at 230 South Broad Street, 10th Floor, Philadelphia PA 19102. He is subject to the jurisdiction of the Disciplinary Board of the Supreme Court.

(3) Respondent has no prior history of discipline.

(4) In March 2001, Dr. Michael Silverman retained respondent to represent him in preparing a partnership agreement and documents relating to pension plans and a trust.

(5) Respondent had not previously represented Dr. Silverman and failed to advise him in writing, at or within a reasonable time after commencing the representation, of the basis or rate of his fee.

(6) At respondent’s request, Dr. Silverman issued to respondent the following checks, which were negotiated as noted:

(a) On March 29, 2001, $5,000 deposited to respondent’s operating account.

(b) On May 1, 2001, $2,500 deposited to Werner & Rocca P.C. operating account.

(7) Respondent failed to hold Dr. Silverman’s fee in escrow pending performance of the services for which it was paid.

(8) Due to his unsupervised delegation of bookkeeping matters to an employee, respondent was unaware that the checks had been deposited in operating accounts as opposed to an escrow account.

(9) Respondent met with Dr. Silverman on several occasions to discuss the case.

(10) Thereafter, and continuing through 2001, Dr. Silverman spoke on the telephone with respondent concerning the status of the document preparation.

(11) Respondent did not always accept or return Dr. Silverman’s calls.

(12) Respondent failed to prepare the documents requested by Dr. Silverman.

(13) In late summer 2001, respondent advised Dr. Silverman that respondent had a rough draft of the partnership agreement, and Dr. Silverman asked that respondent send it to him.

(14) Respondent misrepresented to Dr. Silverman that he prepared a draft.

(15) Respondent failed to complete or send Dr. Silverman any documents.

(16) By letter dated November 5, 2001, Dr. Silver-man expressed his disappointment at respondent’s failure to respond to his telephone calls and asked that respondent return his records, a rough draft of the partnership agreement, and the unearned portion of his retainer.

(17) By certified letter dated December 17, 2001, received by respondent’s agent on December 20, Dr. Silverman asked that respondent release his documents, provide a statement of services, and refund the unearned portion of the retainer by December 27, 2001.

(18) Respondent did not respond to either of these letters.

(19) By letter dated December 27,2001, Disciplinary Counsel advised respondent that Dr. Silverman had filed a complaint alleging that, despite the termination of his professional relationship with respondent, respondent had failed to return to Dr. Silverman his original documents, and failed to account for and refund the unearned portion of the fee which Dr. Silverman paid, and requested that respondent attend to the matter.

(20) In a January 11,2002 telephone conversation with Disciplinary Counsel, respondent stated that he had “screwed up” the case, and that he would send the file and a refund to Dr. Silverman by January 15,2002, with a copy to Disciplinary Counsel.

(21) Respondent did not send the file and refund to Dr. Silverman at that time.

(22) Under cover of a facsimile transmission dated February 1,2002, respondent forwarded to Disciplinary Counsel:

(a) a copy of a letter dated January 31, 2002, to Dr. Silverman, purporting to forward to Dr. Silverman a copy of his file; a check dated January 31,2002 in the amount of $6,240; and a personal note.

(b) a copy of check in the amount of $6,240, drawn on the Royal Bank escrow account and signed by respondent.

(23) Respondent’s transmittal of a fax on February 1, 2002, with a check and letter dated January 31, 2002, was designed by respondent to make Disciplinary Counsel believe that the check and letter had been sent on January 31, 2002.

(24) Respondent did not send the original letter and check to Dr. Silverman, nor did he provide the draft partnership agreement or a statement of service.

(25) Respondent knew that he misled Disciplinary Counsel as to the remedial actions he had taken in the matter.

(26) Respondent did not advise Disciplinary Counsel that he did not send the letter, check and other materials to Dr. Silverman.

(27) By letter dated February 6, 2002, Disciplinary Counsel acknowledged receipt of the January 31 letter, reminded respondent of the necessity to provide an accounting of his time evidencing the basis for calculation of the refund, inquired as to why the refund to Dr. Silverman was made from the escrow account when his fees had been deposited into other accounts, and asked that respondent respond and provide documentation by February 20, 2002.

(28) By letter dated March 26, 2002, Disciplinary Counsel reminded respondent of his promise to release Dr. Silverman’s file and asked that respondent provide the information requested in the February 6 letter by April 8, 2002.

(29) By certified Letter Request for Statement of Respondent’s Position (Form DB-7) dated May 17,2002, received in respondent’s office on May 20,2002, Disciplinary Counsel formally notified respondent of Disciplinary Counsel’s concerns in the matter; that respondent had forwarded the $6,420 check under cover of the January 31 letter; and asked that respondent provide financial records evidencing transactions in the accounts through which Dr. Silverman’s funds were transacted.

(30) Respondent did not respond to the DB-7 letter, notify Disciplinary Counsel that he had not mailed the check to Dr. Silverman, or provide the records requested in the DB-7 letter.

(31) On July 11, 2002, petitioner notified respondent that a subpoena had been issued to him, returnable August 2, 2002.

(32) The subpoena, for production of financial records, was personally served on respondent on July 17, 2002.

(33) By letter dated July 29, 2002, respondent forwarded to Dr. Silver-man a check in the amount of $7,500, dated July 28, 2002, drawn on respondent’s personal account at Royal Bank, representing the full amount of the retainer.

(34) Regina Geyer is employed by respondent as a bookkeeper and has known him for five years.

(35) Ms. Geyer believes that respondent has a good reputation in the community for honesty and integrity.

(36) Alan Zibelman, Esquire, is a Philadelphia attorney who has known respondent for several years.

(37) At the time of the hearing, Mr-. Zibelman was representing respondent in a civil matter.

(3 8) Mr. Zibelman believes that respondent has a good reputation in the community for honesty and integrity.

(39) Respondent expressed remorse for his misconduct toward Dr. Silverman, but did not acknowledge or express sincere regret for misleading Disciplinary Counsel.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 1.3 — A lawyer shall act with reasonable diligence and promptness in representing a client.

(2) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(3) R.P.C. 1.5(b) — When a lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.

(4) R.P.C. 1.15(a) — A lawyer shall hold property of a client or third person that is in a lawyer’s own possession in connection with a representation separate from the lawyer’s own property.

(5) R.P.C. 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. A lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(6) R.P.C. 1.16(d) — Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.

(7) R.P.C. 8.1(a) — A lawyer is subject to discipline if the lawyer has made a materially false statement in, or if the lawyer has deliberately failed to disclose a material fact requested in connection with, the lawyer’s application for admission to the bar or any disciplinary matter.

(8) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline charging respondent with violations of the ethical rules arising out of his client neglect and misrepresentations to Disciplinary Counsel. Respondent has admitted, and the board finds, based on the evidence of record, that in respondent’s representation of Dr. Michael Silverman, respondent violated Rules 1.3,1.4(a), 1.5(b), 1.15(a), 1.15(b), and 1.16(d).

Respondent began and continued his representation of Dr. Silverman, a client he had never before represented, without a written fee agreement. He then took a retainer which was deposited by his bookkeeper in respondent’s operating account, instead of properly placing it in an escrow account for safekeeping. While respondent did not know that the fee was improperly deposited, it is clear that he was careless in supervising the activities of his bookkeeper. Respondent failed to answer his client’s inquiries about the status of his legal matter. While respondent testified that he prepared a draft of the partnership agreement, the Hearing Committee found that this was not a credible statement. The board is guided by the committee’s findings on credibility of witnesses and finds nothing of record to negate this finding. The only explanation offered by respondent for his neglect of Dr. Silverman’s affairs was respondent’s unfamiliarity with the area of law involved.

More serious than the charges of neglect are the charges of misrepresentation by respondent to Disciplinary Counsel. Although not admitted to by respondent, the board finds that petitioner proved by clear and convincing evidence that respondent did violate Rules of Professional Conduct 8.1(a) and 8.4(c). Respondent deceived Disciplinary Counsel in two ways. First, on February 1,2002, he sent a back-dated letter to Disciplinary Counsel from which Disciplinary Counsel reasonably concluded that respondent had returned Dr. Silverman’s retainer the day before. The Hearing Committee found respondent’s testimony about the circumstances of the letter to be lacking in credibility. Again, the board is guided by the committee’s finding on credibility, as nothing in the record is persuasive of a different finding. The second way in which respondent deceived Disciplinary Counsel was during the next six months when he failed to inform Disciplinary Counsel that he had not sent the retainer check. Respondent was obligated to disclose this fact pursuant to Rule 8.1(a).

This case presents an example of an attorney who, after finding himself in a situation of neglecting his professional responsibilities to a single client, made the situation exponentially worse by actively misleading Disciplinary Counsel as to purported remedial measures. The underlying neglect of Dr. Silverman was regrettable; however, respondent’s conduct toward Disciplinary Counsel was particularly egregious because it reveals a core failure to act honestly, which in turn suggests unfitness to practice law.

Additionally, the committee found on several occasions that respondent failed to testify credibly at his disciplinary hearing. Specifically, the committee did not believe that respondent ever prepared a draft of Dr. Silverman’s partnership agreement, nor did they believe his explanation of the circumstances surrounding the letter he sent to Office of Disciplinary Counsel. Respondent’s testimony as to his remorse for his actions was found to be insincere, particularly in regard to the misconduct involving Office of Disciplinary Counsel.

Respondent provided no persuasive mitigation. The testimony of his two character witnesses, while credible, was not particularly weighty, as one witness was his bookkeeper and the other witness his personal lawyer, both respondent’s employees in some fashion. Respondent has no history of discipline in his 23 years of practice, making this incident even more unfortunate.

The board is persuaded that some measure of suspension will best protect the public and maintain the integrity of the bar and the disciplinary system. A range of penalties has been imposed in the past for similar misconduct. In the matter of In re Anonymous No. 126 D.B. 92, 26 D.&C.4th 427 (1995), an attorney was suspended after he failed to comply with a client’s request that he return the client’s file, and misrepresented to Chief Disciplinary Counsel that he had returned the file. This attorney provided credible mitigating factors as to great personal trauma occurring at the time of the misconduct. The board recommended and the Supreme Court imposed a six-month suspension.

In the matter of In re Anonymous No. 91 D.B. 1990, 14 D.&C.4th 597 (1992), an attorney who neglected clients’ cases to their detriment and misrepresented the status of the cases was suspended for a period of one year and one day. In the matter of In re Anonymous No. 77 D.B. 1993, 34 D.&C.4th 214 (1996), an attorney was suspended for one year after he engaged in a scheme to misrepresent to referral counsel his share of the fee in a personal injury matter. The attorney made misleading statements and offered deceptive testimony. This attorney further attempted to cover his tracks with Office of Disciplinary Counsel in its investigation of a subsequent matter. The board found mitigating circumstances which led the board to conclude that a one-year suspension was appropriate.

The board is persuaded that a suspension of one year and one day is appropriate to address respondent’s misconduct. His misrepresentations to Disciplinary Counsel were severe and damaging to the disciplinary process. His incredible testimony at the disciplinary hearing signified a continuation of his inability or unwillingness to squarely face his actions. Private discipline is an inadequate response to such dishonest conduct, which certainly compounded respondent’s original neglect of Dr. Silverman’s matter.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Arthur Joseph Werner, be suspended from the practice of law for a period of one year and one day.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Curran did not participate in the matter.

Board Members Teti, Wright and Gentile recused.

Board Members McLaughlin, Brown, Pietragallo and Nordenberg did not participate in the March 16, 2005 adjudication.

ORDER

And now, August 10,2005, upon consideration of the report and recommendations of the Disciplinary Board dated April 27, 2005, the petition for review and responses thereto, the request for oral argument is denied pursuant to Rule 208(e)(4), Pa.R.D.E., and it is hereby ordered that Arthur Joseph Werner be and he is suspended from the bar of this Commonwealth for a period of one year and one day, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: NEW, J,

text:
    Hutt v. Weiner

      James L. Griffith, for plaintiffs.

      Gary V. Girtleman, John C. Farrell, DawnR. Courtney and Richard W. Yost, for defendants.
    March 15, 2005
   NEW, J,

This court denied plaintiffs’ petition to open a judgment of non pros because plaintiffs failed to timely file a certificate of merit.

PROCEDURAL AND FACTUAL HISTORY

Elizabeth Hutt (plaintiff) and her husband, John Hutt, initiated a dental malpractice action against various dentists, including Jeffrey M. Weiner DDS, Mark J. Funt DMD, Arnold Pfannenstiel DDS, and Edward S. Abrams DMD. This action was commenced on September 21, 2004; however, a complaint was not filed until October 12, 2004. Plaintiffs also initiated a dental malpractice action against another dentist, Joshua Uram DMD, on October 4, 2004; again, a complaint was not filed until October 12, 2004. Both actions arise out of the same incident occurring in late 2002 and early 2003. As of December 14,2004, in both cases, no certificates of merit had been filed. All the above named defendants filed petitions for a judgment of non pros for failing to timely file a certificate of merit. A judgment of non pros was entered against plaintiffs, in both cases, on December 14,2004. On December 21,2004, plaintiffs filed a petition to open the judgment of non pros. As of an order dated January 18,2005, this court denied plaintiffs’ petition to open the judgment of non pros. Plaintiffs now appeal that order.

LEGAL ANALYSIS

Pennsylvania Rule of Civil Procedure 1042.3(a) contains the requirement that, in any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the plaintiff shall file a certificate of merit within 60 days after the filing of the complaint. Hoover v. Davila, 862 A.2d 591 (Pa. Super. 2004). Rule 1042.6 allows for the prothonotary to enter a judgment of non pros against the plaintiff for failing to file a certificate of merit within the required time. Pa.R.C.P. 1042.6. The procedure to open a judgment of non pros entered pursuant to Pa.R.C.P. 1042.6 is governed by Pa.R.C.P. 3051. Koken v. Lederman, 840 A.2d 446 (Pa. Commw. 2003). In order to open the judgment, Rule 3051 requires: (1) the petition to open be timely filed; (2) there be reasonable or justifiable excuse for any delay; and (3) there be a meritorious cause of action.

In the case sub judice, plaintiffs filed complaints for dental malpractice, against both sets of defendants, on October 12, 2004. It is undisputed that this is a professional liability action and a certificate of merit is required. Pursuant to Pa.R.C.P. 1042.3(a), plaintiffs were required to file a certificate of merit or a motion for extension of time to file a certificate of merit within 60 days of initiating the action. Sixty days after the initiation of each action would have been December 12, 2004. As of December 14, 2004, no certificate of merit had been filed, and a judgment of non pros was properly entered.

As stated above, Pa.R.C.P. 3051 requires (1) the petition to open be timely filed; (2) there be reasonable or justifiable excuse for any delay; and (3) there be a meritorious cause of action for the opening of judgment of non pros. The judgment of non pros was entered December 14, 2004. Plaintiffs filed a petition to open the judgment on December 21,2004, one week after the entiy of judgment. This court considers one week as timely.

The next requirement is a reasonable or justifiable excuse for any delay. The dental specialist used by plaintiffs fell ill and was unable to complete the opinion letter. Plaintiffs offer the excuse that they “were led to believe” that their expert would provide an opinion letter in sufficient time for them to file a certificate of merit. This is not a reasonable or justifiable excuse for the delay.

“The plaintiff who has a reasonable explanation or legitimate excuse for not being able to timely file a certificate of merit may, instead, file a motion to extend the time for filing the certificate on or before the filing date that the plaintiff seeks to extend. The filing of the motion to extend tolls the time period within which a certificate of merit must be filed until the court rules on the motion.

“Consequently, an explanation for the inactivity requires an explanation as to why the plaintiff did not within the 60-day period file a motion to extend the time for filing the certificate of merit.” Hoover v. Davila, 862 A.2d 591, 595 n.3 (Pa. Super. 2004) (citing Helfrick v. UPMC Shadyside Hospital, 65 D.&C.4th 420 (Allegheny Cty. 2003). Since plaintiff had failed to file a motion for extension of time, he could not provide a reasonable explanation under the second prong of Pa.R.C.P. 3051. Helfrick at 423. In the case sub judice, plaintiffs should have been in contact with the dental specialist and realized the opinion letter was not going to be completed on time. Plaintiffs should have filed a motion for extension of time. Plaintiffs offer no reasonable excuse for failing to file a motion for extension of time. As a result, plaintiffs failed to satisfy the second prong of Pa.R.C.P. 3051. As for the third prong of Pa.R.C.P. 3051, it is unnecessary to address because one of the elements was not met.

Plaintiffs also raise the argument that Pa.R.C.P. 1042.6 became effective on January 27, 2003, and does not apply retroactively to causes of action previously accruing. Contained in the order promulgating Pa.R.C.P. 1042.6, the Pennsylvania Supreme Court declared “[t]he new and amended rules shall be applicable to actions commenced on or after the effective date of this order.” See Supreme Court order, January 27, 2003. Based on the Supreme Court’s order, the relevant date is when the plaintiffs’ cause of action commenced, not when it accrued. In the case sub judice, the actions commenced on October 12, 2004, which is after the January 27, 2003 date. Pennsylvania Rule of Civil Procedure 1042.6 applies to the present actions.

Wherefore, for the above mentioned reasons, this court’s order should be affirmed.


author: WAITE, J.,

text:
    Hirth v. Estate of Warris

      Jeffrey G. Trauger, for plaintiff.

      Robert A. Lechowicz, for defendant.
    December 22, 2005
   WAITE, J.,

This matter involves the appeal by appellant/defendant estate of Ronald Warris of our grant of summary judgment in favor of the appellee/plaintiff, Frederick A. Hirth. This opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

The matter involves the sale of real estate in which Hirth is the buyer and the estate of Warris is the seller. The property which is the subject of the agreement of sale suffered a severe fire loss. As a result, the closing on the property had to be postponed on two occasions due to the reluctance of the insurance carrier to remit insurance proceeds in connection with the fire loss. Under the agreement, Warris bore the risk of loss.

Purportedly without discussion or notice to anyone, the insurance carrier remitted a check for the full amount of the loss. The check was dated three days before the last proposed settlement date and was received one day after the last proposed settlement date. The payment made by the carrier was not only for the full amount of the loss but was for the full purchase price set in the agreement of sale for the entirety of the property — both land and building. Warris claims that the estate may cancel the deal and keep the insurance proceeds. Hirth contends that the deal should be completed with Hirth getting the property along with the insurance proceeds.

Simultaneous with Hirth’s summary judgment motion, Warris filed a motion for judgment on the pleadings asserting not only that the facts were not in dispute, but that the issues were sufficiently clear to enable the court to dispose of the case on the pleadings.

Generally, in an appeal from a grant or denial of summary judgment, the appellate court’s review is limited to determining whether the lower court committed an abuse of discretion or an error of law. The facts must be viewed in the light most favorable to the non-moving party. The scope of review of the appellate court of the determination of a motion for summary judgment is plenary, in that the standard of review is the same as that of the trial court. The reviewing court must determine, based on the record documents, whether there is an existence of a question of material fact concerning an element of the claim or defense at issue. If no such question appears, the court must then determine whether the moving party is entitled to judgment on the basis of substantive law. Stanton v. Lackawanna Energy Ltd., 820 A.2d 1256, 1258-59 (Pa. Super. 2003).

The standards which govern summary judgment are well settled; when a party seeks summary judgment, a court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. Fine v. Checcio, 582 Pa. 253, 263, 870 A.2d 850, 857 (2005). A motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Finally, the court may grant summary judgment only when the right to such a judgment is clear and free from doubt.

DISCUSSION

Warns contends that there were material issues of facts involving the following issues:

(1) Whether Warris provided Hirth with information regarding the nature and extent of insurance coverage on the real estate which was subject to an agreement of sale between the parties.

(2) Whether Hirth made an election to either cancel the agreement or complete the sale of the property which was partially destroyed in a fire prior to the set settlement date.

(3) Whether the agreement expired on April 15,2004.

(4) Whether Hirth had sufficient funds to complete settlement.

(5) Whether the court is constrained to find that a genuine issue of material fact exists due to the proffer of an affidavit of opinion on an issue.

(6) Generally, while set forth in separate paragraphs, whether Hirth satisfied all of the elements and requirements under the agreement to entitle him to relief.

We determined that it was undisputed that the parties utilized a standard Pennsylvania Association of Realtors form agreement of sale to enter a valid agreement for the sale of property described as 2275 Milford Square Pike, Quakertown, Pa. 18951; also described as tax parcel number 23-010-156. The purchase price was $108,000. The agreement of sale form provided the following at paragraph 23:

“23. Maintenance And Risk Of Loss (1-02)

“(A) Seller will maintain the property, grounds, fixtures, and any personal property specifically scheduled herein in its present condition, normal wear and tear excepted.

“(B) In the event any system or appliance included in the sale of the property fails and seller does not repair or replace the item, seller will promptly notify buyer in writing of seller’s choice to:

“(1) Repair or replace the failed system or appliance before settlement or credit buyer at settlement for the fair market value of the failed system or appliance (this option must be acceptable to the mortgage lender, if any). In each case, buyer accepts the property and agrees to the RELEASE set forth in paragraph 25 of this agreement, OR

“(2) Not repair or replace the failed system or appliance, and not credit buyer at settlement for the fair market value of the failed system or appliance. If seller does not repair, replace or offer credit for the failed system or appliance, or if seller fails to notify buyer of seller’s choice, buyer will notify seller in writing within five days or before settlement, whichever is sooner, that buyer will:

“(a) Accept the property and agree to the RELEASE set forth in paragraph 25 of this agreement, OR

“(b) Terminate this agreement, in which case all deposit monies paid on account of purchase price will be returned promptly to buyer and this agreement will be VOID.

“(C) Seller will bear risk of loss from fire or other casualties until time of settlement. In the event of damage by fire or other casualties to any property included in this sale that is not repaired or replacedprior to settlement, buyer will have the option of rescinding this agreement and promptly receiving all monies paid on account ofpurchase price or of accepting the property in its then condition together with the proceeds of any insurance recovery obtainable by seller. Buyer is hereby notified that buyer may insure buyer’s equitable interest in this property as of the time of execution of this agreement. ” (emphasis provided)

The above-recited paragraph of the agreement obligated Warris to insure the property against casualty, including fire damage, and in the event of fire, to grant Hirth the option of accepting the fire-damaged property with all “the proceeds of any insurance recovery obtainable by seller.”

Originally, the sale was to settle by February 27,2004. On January 30, 2004, a fire occurred and the house was heavily damaged to the point of effective total destruction. Warris notified the insurance carrier of the fire loss, and the ensuing investigation raised questions of possible arson as the cause. The carrier declined to make immediate payment until further investigations were conducted. As a result, the February 27 settlement date had to be set back. Two express extensions of the settlement date were executed; the last of which extended the settlement date to April 15,2004. On April 12,2004, the Allstate Insurance Company issued a check in the amount of $108,000. This was the precise full purchase price the parties agreed upon for the sale of the property. As of April 12, 2004, the addendum extending the settlement was in full force and effect. Warris contends that he did not proffer the property along with the insurance proceeds to Hirth because he had not yet received the check from the insurer and did not know that payment was going to be made by the insurer. Warris asserts that the agreement expired by its terms on April 15, 2004, while the check was not received until April 16,2004. Warris contends, therefore, that the agreement terminated by its own terms.

Warris does not consider it relevant that it was Warris who required the extensions to resolve the insurance issue. However, we believe that it is of critical importance to the disposition of this matter. Where, as here, seller sought the extension of time, seller cannot thereafter terminate the agreement without reasonable notice to the buyer. In Schwoyer v. Fenstermacher, 251 Pa. Super. 243, 380 A.2d 468 (1977), the seller brought an action to rescind an agreement to sell her farm on the theory that buyer had failed to perform within the time provided for in the agreement. In response, buyer brought an action for specific performance of the agreement. The opinion of the court contained the following comment:

“One provision of the agreement was that ‘the said SELLER and PURCHASER hereby bind themselves, their heirs, executors, administrators, successors and assigns, for the faithful performance of the above agreement within 120 days from the date of this agreement, said time to be of the essence of this agreement, unless extended by mutual consent in writing endorsed hereon.’ ” Id. at 245.

The court found in the Schwoyer case that specific performance was properly ordered in that the failure to settle earlier was not due to actions unilaterally taken by the buyer.

There is nothing of record and no assertion is made by Warris suggesting that Hirth gave notice of termination of the agreement. The parties may waive the time limits and there is nothing to suggest that either sought or expressed their intention or took any affirmative action to terminate the agreement, other than Warris’ attorney’s letter discussed below. Cohn v. Weiss, 356 Pa. 78, 51 A.2d 740 (1947). See also, Phillips v. Tetzner, 357 Pa. 43, 53 A.2d 129 (1947) (Where plaintiffs exercised option to purchase and so notified defendant within time named in option. Plaintiffs demanded a conveyance but defendant did not possess legal title at that time, the time limit mentioned in option was rendered inoperative by defendant’s own action and plaintiffs were not bound thereby. Defendant was required to comply with his contract as soon as he acquired legal title.).

It has long been the law in our Commonwealth that it is competent for the parlies to a written contract to show that it was subsequently abandoned in whole or in part, modified, changed or a new one substituted, either by writings, words or conduct, or by all three. Trustees of First Presbyterian Church of Pittsburgh v. Oliver-Tyrone Corp, 248 Pa. Super. 470, 476, 375 A.2d 193, 196 (1977). Notice to terminate a contract must be clear and unambiguous. Accu- Weather Inc. v. Prospect Communications Inc., 435 Pa. Super. 93, 100, 644 A.2d 1251, 1254 (1994). “Ambiguous conduct and language intended to signal contract termination will be deemed not to have terminated the contract.” Id. In Accu-Weather, our Superior Court held that the appellee did not properly terminate their contract because (1) notice was ambiguous in that it failed to manifest a clear intent to terminate the agreement and (2) appellee’s subsequent performance under the agreement negated the notice of termination. Id.

In ascertaining the intent of the parties to a contract when unclear from the writing itself, the court considers the parties’ outward and objective manifestations of assent, as opposed to their undisclosed and subjective intentions. Espenshade v. Espenshade, 729 A.2d 1239, 1243 (Pa. Super. 1999). Thus, the court may take into consideration the surrounding circumstances, the situation of the parties, the objects they apparently have in view and the nature of the subject matter of the agreement. The court will adopt an interpretation that is most reasonable and probable, bearing in mind the objects which the parties intended to accomplish through the agreement. Laudig v. Laudig, 425 Pa. Super. 228, 233, 624 A.2d 651, 653 (1993). See also, Melton, supra (stating court may take into account attendant circumstances to determine parties’ intent, when parties’ intentions are unclear). “Before a court will interpret a provision in... a contract in such a way as to lead to an absurdity or make the . . . contract ineffective to accomplish its purpose, it will endeavor to find an interpretation which will effectuate the reasonable result intended.” Laudig, supra at 232, 624 A.2d at 654.

Additionally, this “Commonwealth has accepted the principle in Restatement (Second) of Contracts §205 that ‘ [ejvery contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.’ ” John B. Conomos Inc. v. Sun Company Inc. (R & M), 831 A.2d 696, 705-706 (Pa. Super. 2003), appeal denied, 577 Pa. 697, 845 A.2d 818 (2004). “The duty of ‘good faith’ has been defined as ‘[hjonesty in fact in the conduct or transaction concerned.’ ” Somers v. Somers, 418 Pa. Super. 131, 136, 613 A.2d 1211, 1213 (1992).

The obligation to act in good faith in the performance of contractual duties varies somewhat with the context, and a complete catalogue of types of bad faith is impossible, but it is possible to recognize certain strains of bad faith which include: evasion of the spirit of the bargain, lack of diligence and slacking off, willful rendering of imperfect performance, abuse of a power to specify terms and interference with or failure to cooperate in the other party’s performance. Id.

A similar requirement has been developed in common law called the “doctrine of necessary implication,” which states:

“In the absence of an express provision, the law will imply an agreement by the parties to a contract to do and perform those things that according to reason and justice they should do in order to carry out the purpose for which the contract was made and to refrain from doing anything that would destroy or injure the other party’s right to receive the fruits of the contract.” Palmieri v. Partridge, 853 A.2d 1076, 1079 (Pa. Super. 2004).

Courts employ the doctrine of necessary implication as a means of avoiding injustice by inferring contract provisions that reflect the parties’ silent intent. Id. In the absence of an express term, the doctrine of necessary implication may act to imply a requirement necessitated by reason and justice without which the intent of the parties is frustrated. Somers, supra at 137, 613 A.2d at 1214.

“The duty of good faith and the doctrine of necessary implication apply only in limited circumstances. Implied duties cannot trump the express provisions in the contract.” Conomos, supra at 706. “Both the implied covenant of good faith and the doctrine of necessary implication are principles for courts to harmonize the reasonable expectations of the parties with the intent of the contractors and the terms in their contract.” Id. at 707.

In the instant matter, Warris’ attorney authored a letter to Hirth’s attorney on April 12, 2004, advising that the insurance carrier would not transfer the policy of insurance to Hirth and stated as follows:

“The estate has done all it can to accommodate this sale, but I believe we are past the point of being able to close by April 15 under this agreement. I am not authorized to grant any further extensions. If your client wishes to make a new written offer on the property ‘as is’ the executor would be pleased to consider his offer.”

Seller’s attorney does not affirmatively state that an extension would not be negotiated but merely that he, as attorney for the executor of the estate, did not have the authority to grant an extension. Furthermore, there is no statement that they did not want the deal to be completed but merely re-affirmed what was already available to Hirth under the agreement as presently constituted; namely, to take the property “as is” together with such insurance proceeds as was available.

Where time is not made of the essence of the contract, either expressly or impliedly from the nature of the transaction or of the subject matter, and no material change has taken place in the circumstances of the parties, and time admits of compensation as is usually the case where the default consists in a mere failure to pay money on the day stipulated, relief will be decreed to the party seeking it, and specific performance will be decreed in his favor if he has not been grossly negligent and comes within reasonable time, although he has not complied with the strict terms of the contract. Cimina v. Bronich, 517 Pa. 378, 537 A.2d 1355 (1988); Detwiler v. Capone, 357 Pa. 495, 55 A.2d 380 (1947).

On April 16, 2004, four days after the date of Warris’ attorney’s letter, it is admitted that a check from the insurance carrier dated April 12, 2004, arrived. We note that paragraph 23(B)2 provides buyer with five days after written notice of seller’s decision to refuse credit for damages incurred to accept the property in its as-is condition together with such insurance proceeds as was available.

There was no response to the attorney’s letter dated April 12 by Hirth before the check arrived. This description of the scenario regarding the remittance of the check and the date on which it was received without fore-notice and without any prior communication taken at face value does not amount to a clear and unambiguous termination of the contract. The fundamental rule in interpreting the meaning of a contract is to ascertain and give effect to the intent of the contracting parties. Murphy v. Duquesne University of the Holy Ghost, 565 Pa. 571, 111 A.2d 418 (2001). The intent of the parties to a written agreement is to be regarded as being embodied in the writing itself. Steuartv. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). The whole instrument must be taken together in arriving at contractual intent. Felte v. White, 451 Pa. 137, 302 A.2d 347 (1973). Courts do not assume that a contract’s language was chosen carelessly, nor do they assume that the parties were ignorant of the meaning of the language they employed. Steuart, 498 Pa. at 51, 444 A.2d at 662. When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Felte, 451 Pa. at 143, 302 A.2d at 351. Only where a contract’s language is ambiguous may extrinsic or parol evidence be considered to determine the intent of the parties. Hutchison v. Sunbeam Coal Corporation, 513 Pa. 192, 519 A.2d 385 (1986).

Contractual language is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. This is not a question to be resolved in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts. We should not and have not distorted the meaning of the language or resort to a strained contrivance in order to find an ambiguity. Thornburgh v. Lewis, 504 Pa. 206, 470 A.2d 952 (1983). The interpretation given with respect to the settlement date as amended in the instant matter and as applied under contract law does not cause a termination, without more, under the facts and circumstances of this situation.

Interpretation of contracts is a question of law which can and should appropriately be made by the court. Liddle v. Scholze, 2001 Pa. Super. 67 (2001). In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished. Halpin v. LaSalle University, 432 Pa. Super. 476, 639 A.2d 37 (1994). Furthermore, the meaning of an unambiguous written instrument also presents a question of law for resolution by the court. Community College v. Community College, Society of the Faculty, 473 Pa. 576, 592, 375 A.2d 1267 (1977).

Warris contends that his failure to provide information to Hirth regarding the nature and extent of the insurance coverage and/or proceeds is not relevant to Hirth’s obligation to elect to take the property in its then as-is condition. As a general rule, the prevention or hindrance of another party’s performance of a contract constitutes a material breach of the contract and excuses the nonperformance of the non-breaching party. See Apalucci v. Agora Syndicate Inc., 145 F.3d 630, 634 (3d Cir. 1998) (citing Pennsylvania law for “the general rule, [that] when one party to a contract unilaterally prevents the performance of a condition upon which his own liability depends, the culpable party may not then capitalize on that failure”); Ott v. Buehler Lumber Company, 373 Pa. Super. 515, 518, 541 A.2d 1143, 1145 (1988) (same); Blake Construction Company Inc. v. C. J. Coakley Company Inc., 431 A.2d 569, 576 (D.C. 1981) (“It is well established that there are certain implicit duties between contracting parties, particularly the duty not to prevent performance by the other party”); Williston on Contracts, §§39:3, 39:12.

It is a contractual duty by implication to deal in good faith. The interpretation of the contract may include the interpretation of the reasonable means by which good faith is meant to be implemented. In our interpretation of this contract, we have implemented the duty as intended by the parties. This is a function entrusted to the courts to be exercised with all due discretion, keeping in mind the intentions of the parties. Huang v. BP Amoco Corp., 211 F. 3d 560 (3d Cir. 2001).

The testimony of record fails to raise a genuine issue of material fact. The parties intended that Hirth would have the right to elect to take the damaged property along with insurance proceeds and that Warris failed to provide Hirth with information regarding the nature and extent of insurance coverage and the extent and amount of proceeds “obtainable” by the seller. William M. Hendrickson Inc. v. Amtrak, 2002 U.S. Dist. Lexis 4097, 39-40 (D. Pa., 2002). Neither Hirth nor Warris ever repudiated or terminated the agreement. Consequently, the agreement remained viable and in full force and effect. Hirth elected to take the damaged property with the insurance proceeds and Warris is obliged under the agreement to convey the property and insurance proceeds to Hirth.

Therefore, we entered our order granting Hirth’s motion for summary judgment.


author: CHERRY, J,

text:
    Williams v. Kerr

      Ronald L. Williams II, pro se.

      Grant H. Fleming and Jonathan B. Stepanian, for defendants Kerr and Penn State Milton S. Hershey Medical Center.

      January 9, 2006
   CHERRY, J,

Presently before this court is defendants Blaine A. Kerr, PSHMC/COM Privacy Coordinator, the Penn State Milton S. Hershey Medical Center’s preliminary objection to plaintiff Ronald L. Williams II’s complaint.

Procedurally, this matter was initiated by complaint on September 8, 2005. Defendants filed a preliminary objection on September 27,2005, and a brief in support of the preliminary objection on November 8,2005. Plaintiff filed a response on November 25, 2005, and an opposing brief on December 8, 2005.

This action, sounding in equity, seeks the release of certain medical records concerning plaintiff’s minor child, Cullen Matthew Withrow, born November 28, 1998. Specifically, plaintiff asks the court to order defendants to provide all medical documents pertaining to the child’s psychiatric evaluation that was performed sometime between August 12 and 20, 2003. Plaintiff notes that, on an unspecified date, a redacted inpatient report was provided to him. However, plaintiff states:

“As the court can clearly determine, references to the plaintiff’s alleged mental health history were deleted. These deleted portions of the record primarily dealt with the plaintiff’s alleged borderline schizophrenia, that he had a motor vehicle accident because of hallucination, and that plaintiff has bipolar behavior, but he was never treated. These false, slanderous allegations made by the child’s mother add credence to plaintiff’s initial claim that the child’s mother had falsified the child’s medical history and that the defendant’s [sic] in turn had improperly diagnosed the child.

“This sort of malicious deceit perpetrated by the child’s mother and evidently endorsed by the defendants, is exactly the reason that the petitioner initially asked for the release of the medical records.” (Plaintiff’s complaint, September 8, 2005, ¶¶7 and 8.)

Plaintiff concludes that the release of the mental health records substantiates his claim that the child’s mother “willfully, maliciously, and intentionally, falsified the minor child’s medical background,” which resulted in misdiagnosis of the child. (Plaintiff’s complaint, ¶12.)

Defendants inform that on 'October 22, 2004, the Director of the Milton S. Hershey Medical Center’s Child and Adolescent Psychiatry Unit determined that releasing the complete record to plaintiff was “reasonably likely to endanger the life or physical safety of certain individuals.” (Defendants’ preliminary objections, ¶2.) After plaintiff requested that the record be reviewed by another health care professional to determine whether its release was appropriate, a second Milton S. Hershey Medical Center psychiatrist, who did not participate in the original decision, reviewed the child’s medical record and determined, on January 25,2005, that release of the complete mental health record to plaintiff was inappropriate. (Defendants’ preliminary objections, ¶3.) Subsequently, the Director of Child and Adolescent Psychiatry determined that it was appropriate to release redacted portions of the record to plaintiff.

Defendants present one issue via preliminary objection:

“Whether plaintiff has failed to state a legally cognizable claim against defendants where no legal authority exists permitting review of a mental health professional’s determination that releasing mental health records may result in harm to others.”

Defendants demur to plaintiff’s complaint because the Mental Health Procedures Act, 50P.S.§7101et seq. and 55 Pa. Code §5100.33(6), state that “a parent may be denied access to his child’s mental health records if, in the judgment of the director of the facility, the disclosure of those records raises ‘the possibility of substantial detriment to the parent, guardian, or other person Defendants submit that, since there is no provision within the Pennsylvania Code that permits judicial, administrative, or other review of the determination that release of records may raise the possibility of substantial detriment to the parent, guardian, or other person, that determination is final and is not re viewable. Even if the determination were reviewable, defendants conclude that plaintiff fails to allege a violation of the established standard by which this determination is judged. Accordingly, defendants ask that plaintiff’s complaint be dismissed with prejudice for failure to state a claim upon which relief may be granted.

Pursuant to 23 Pa.C.S. §5309 [pertaining to custody of children and minors], plaintiff claims entitlement to the medical records of his minor child because he “has the child’s best interests at heart and believes that the child was misdiagnosed by the defendants’ [sic] as suffering from an emotional disorder.” (Plaintiff’s response, November 25, 2005, ¶7.) Plaintiff avers that the child’s mother falsified the minor child’s medical history by implying that plaintiff has psychological problems. Upon review of the preliminary report [attached to plaintiff’s complaint] and comparing the preliminary report with the “same preliminary report obtained by an independent source, the court can clearly determine that references to plaintiffs’ [sic] alleged mental health history were deleted.” (Plaintiff’s response, ¶11.) Plaintiff alleges that defendants, in an attempt to avoid medical malpractice litigation, “are attempting to cover up the fact that they were deceived by the mother’s falsified mental health history” concerning plaintiff and the minor child. (Plaintiff’s brief, December 8,2005, ¶¶3 and 4, page 1.)

Plaintiff contends that defendants diagnosed the minor child with an emotional disorder and that the misdiagnosis was provided to other health care providers, who subsequently treated the child with anti-psychotic medication. Plaintiff is concerned that the unspecified medication may increase depression and thoughts of suicide. (Plaintiff’s brief, ¶¶7 and 8.)

Although defendants state that the release of the complete medical record is reasonably likely to endanger the life or physical safety of certain individuals, plaintiff seeks clarification of who defendants are protecting— the child or the child’s mother. Based upon the information that plaintiff suggests is not included in the redacted medical records, plaintiff states that he wishes to have the child re-evaluated and that he intends, upon release from prison, to initiate custody proceedings against the child’s mother. Plaintiff suggests that mother’s “malicious conduct involving the child’s medical history is a pertinent part of this future custody action.” (Plaintiff’s response, ¶19.)

Finally, plaintiff references [the Pennsylvania Drug and Alcohol Abuse Control Act,] 71 Pa.C.S. §1690.1 [0] 8(b) to persuade that disclosure of the medical record may be ordered by this court after application is filed with good cause shown.

Pa.R.C.P. 1028(a) provides the basis for defendants’ objection to the release of the minor child’s medical record:

“Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:

“(1) lack of jurisdiction . . . improper venue or improper form or service ...;

“(2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;

“(3) insufficient specificity in a pleading;

“(4) legal insufficiency of a pleading (demurrer);

“(5) lack of capacity to sue, nonjoinder or a necessary party or misjoinder of a cause of action;

“(6) pendency of a prior action of agreement for alternative dispute resolution;

“(7) failure to exercise or exhaust a statutory remedy; and

“(8) full, complete and adequate non-statutory remedy at law.”

In this matter, defendants demur to plaintiff’s complaint, pursuant to Pa.R.C.P. 1028(a)(4). “A demurrer is a preliminary objection that the pleadings fail to set forth a cause of action upon which relief can be granted under any theory of law.” Regal Industrial Corporation v. Crum and Forster Inc., 890 A.2d 395, 398 (Pa. Super. 2005).

Bear v. Reformed Mennonite Church, 462 Pa. 330, 333-34, 341 A.2d 105, 108 (1975) reiterates the standard for judging a demurrer:

“A demurrer admits as true all well-pleaded facts and all inferences reasonably deducible from them, but not any conclusions of law — Only if upon the facts averred, the law says with certainty that no recovery is permitted, . . . will this court sustain the demurrer. Where a doubt exists as to whether a demurrer should be sustained, this should be resolved in favor of overruling it.” (internal citations omitted)

Pursuant to Bear, supra, this court may sustain defendants’ demurrer only upon a showing that the law clearly shows that plaintiff is not entitled to the relief requested. Although he cites the general rule within 23 Pa.C.S. §5309, supra at footnote 2, to suggest that plaintiff, as parent of the minor child, is entitled to all of the child’s medical records, we note that the rule clearly provides the court with authority not to release any part, or parts, of the requested information.

More compelling, however, is 55 Pa.Code §5100.33, supra at footnote 1, which states that the healthcare provider may deny a parent access to a patient’s record or may control release of the record if the director determines that release of the information creates the “possibility of substantial detriment to the parent, guardian, or other person____” Conspicuously absent from 5 5 Pa.Code §5100.33 is a provision for judicial review of the director’s determination. Although plaintiff contends that the release of the minor child’s mental health records substantiate his claim that Mother “willfully, maliciously, and intentionally falsified the minor child’s medical background,” which resulted in misdiagnosis of the child, (Plaintiff’s complaint, ¶12), plaintiff fails to establish a violation of the aforementioned statute and fails to substantiate his claim.

Finally, a review of the redacted portions of the record and the second psychiatric inpatient evaluation fails to substantiate plaintiff’s claim that minor child was misdiagnosed as a result of Mother’s alleged slander and the alleged false reporting of the minor child’s medical history.

Accordingly, we enter the following:

ORDER

And now, January 9, 2006, upon consideration of defendants Blaine A. Kerr, PSHMC/COM Privacy Coordinator, the Penn State Milton S. Hershey Medical Center’s preliminary objection and supporting brief, plaintiff Ronald L. Williams II’s response and opposition brief thereto, and upon review of the complaint, supporting documentation, and the applicable statutory and case law, it is hereby ordered that defendants’ preliminary objection in the nature of a demurrer is sustained. Accordingly, plaintiff’s complaint is dismissed with prejudice.

      . So that the full import of subsection (e) may be realized, subsections (a) and (c) are also provided: 55 Pa. Code §5100.33, Patient’s access to records and control over release of records, provides in relevant part:
      “(a) When a client/patient, 14 years of age or older, understands the nature of documents to be released and the purpose of releasing them, he shall control release of his records. For a client who lacks this understanding, any person chosen by the patient may exercise this right if found by the director to be acting in the patient’s best interest. In the event that the client/patient is deceased, control over release of records may be exercised by the client’s/patient’s chosen executor, administrator or other personal representative of his estate, or, if there is no chosen personal representative, by a person otherwise empowered by court order to exercise control over the records. In the event that the client/patient is less than 14 years of age or has been adjudicated legally incompetent, control over release of the client’s/patient’s records may be exercised by a parent or guardian of the client/patient respectively.
      “(c) A person who has received or is receiving treatment may request access to his record, and shall be denied such access to limited portions of the record only:
      “(1) Upon documentation by the treatment team leader, it is determined by the director that disclosure of specific infonnation concerning treatment will constitute a substantial detriment to the patient’s treatment.
      “(2) When disclosure of specific information will reveal the identity of persons or breach the trust or confidentiality of persons who have provided information upon an agreement to maintain their confidentiality.
      “(e) The limitations in subsections (c) are applicable to parents, guardians, and others who may control access over records as described in subsection (a) except that the possibility of substantial detriment to the parent, guardian, or other person may also be considered.”

      . 23 Pa.C.S. §5309 provides:
      “(a) General rule. Except as provided in subsections (b) and (c), each parent shall be provided access to all the medical, dental, religious or school records of the child, the residence address of the child and of the other parent and any other information that the court deems necessary.
      “(b) Court determination not to release information. The court, in its discretion, may determine not to release any part or parts of the information in this section but in doing so must state its reason for denial on the record.
      “(c) Nondisclosure of confidential information. The court shall not order that the address of a shelter for battered spouses and their dependent children or otherwise confidential information of a domestic violence counselor be disclosed to the defendant or his counsel or any party to the proceedings.”

      . 71 Pa.C.S. §1690.108(b) provides: “All patient records (including all records relating to any commitment proceeding) prepared or obtained pursuant to this act, and all information contained therein, shall remain confidential, and may be disclosed only with the patient’s consent and only (i) to medical personnel exclusively for purposes of diagnosis and treatment of the patient or (ii) to government or other officials exclusively for the purpose of obtaining benefits due the patient as a result of his drug or alcohol abuse or drug or alcohol dependence except that in emergency medical situations where the patient’s life is in immediate jeopardy, patient records may be released without the patient’s consent to proper medical authorities solely for the purpose of providing medical treatment to the patient. Disclosure may be made for purposes unrelated to such treatment or benefits only upon an order of a court of common pleas after application showing good cause therefore. In determining whether there is good cause for disclosure, the court shall weigh the need for the information sought to be disclosed against the possible harm of disclosure to the person to whom such information pertains, the physician-patient relationship, and to the treatment services, and may condition disclosure of the information upon any appropriate safeguards. No such records or information may be used to initiate or substantiate criminal charges against a patient under any circumstances.”