author: LEVIN, S.J.,

text:
    Solomon v. United States Health Care Systems of Pennsylvania Inc.

      Mark C. Rijkin, for plaintiffs.

      Burt M. Rublin, for defendants.
    June 19, 2001
   LEVIN, S.J.,

INTRODUCTION

This case involves the payment of insurance claims by health care providers to licensed insurance carriers. Plaintiffs Mark Solomon M.D., and Regional Neurosurgical Associates PC. (RNA), are health care providers. They claim that United Health Care Systems of Pennsylvania Inc., and Aetna Inc., defendants, have failed to timely pay insurance claims, or to pay interest thereon. Plaintiffs make two specific claims: first, plaintiffs claim that defendants’ failure to pay claims within 45 days, or to pay interest thereon, is a violation of the Pennsylvania 1998 Quality Health Care Accountability and Protection Act, 40 Pa.C.S. §991.2101 et seq.; and second, plaintiffs claim that defendants’ failure to pay claims for reimbursement within 30 days, or to pay interest to plaintiffs on claims not paid within 30 days, is a breach of the parties’ contract.

This case is presently before this court on defendants’ preliminary objections, defendants’ motion for summary judgment and plaintiffs’ cross-motion for summary judgment. Earlier in this case, on November 30, 1999, this court sustained defendants’ preliminary objections to five of six counts in plaintiffs’ first amended complaint, thereby dismissing with prejudice all of plaintiffs’ claims except plaintiffs’ claim for breach of contract (Count I). (See order dated 11/30/99.) Thereafter, plaintiffs filed a second amended complaint on October 11,2000, in which they added a new count (Count VII), which claims that defendants have violated the Pennsylvania Health Care Act. Hence, the claims presently pending before this court are defendants’ preliminary objections to plaintiffs’ new Count VII (violation of the Health Care Act), defendants’ motion for summary judgment to plaintiffs’ Count I (breach of contract), and plaintiffs’ cross-motion for summary judgment.

DEFENDANTS’ PRELIMINARY OBJECTIONS TO PLAINTIFFS’ FIRST AMENDED COMPLAINT

Following is a discussion of the reasons this court sustained defendants’ preliminary objections to five counts contained in plaintiffs’ first amended complaint. The five counts to which this court sustained preliminary objections are as follows: breach of the implied covenant of good faith and fair dealing, unjust enrichment, fraud, conversion, and negligent misrepresentation. This court found that all of these counts, except for the count for breach of the implied covenants of good faith and fair dealing, were fundamentally flawed because they are contract counts that merely sound in tort law.

In Pennsylvania, the basis of a legal action dictates which claims may be brought. An action based on an agreement between the parties is in fact a contract action, and therefore it cannot be enforced by tort principles. The “important difference between contract and tort actions is that the latter lie from the breach of duties imposed as a matter of social policy while the former lie for the breach of duties imposed by mutual consensus.” Redevelopment Authority of Cambria County v. International Insurance Co., 454 Pa. Super. 374, 392, 685 A.2d 581, 590 (1996). A contract action may not be converted into a tort action simply by alleging that the conduct in question was done wantonly. In order for there to lie an agreement-based tort action, the wrong ascribed to the defendant must be the “gist of the action,” with the contract being “collateral.” Id.

The instant action is both in its essence and upon its face one for breach of contract. Here, there is a clearly written agreement governing the conduct between the parties. Thus, the duties of the parties here were imposed by mutual consensus. A tort action cannot lie here because the contract is central, not collateral, to the action. Therefore, plaintiffs’ claims sounding in tort were properly dismissed by this court as inconsistent with plaintiffs’ breach of contract claim. Id.

DEFENDANTS’ PRELIMINARY OBJECTIONS TO PLAINTIFFS’ SECOND AMENDED COMPLAINT

Defendants limit their preliminary objections to plaintiffs’ second amended complaint to plaintiffs’ newly pleaded Count VII. Defendants claim that Count VII lacks legal sufficiency, and should be dismissed by this court.

In Count VII of the second amended complaint, plaintiffs seek to enforce the defendants’ alleged statutory obligations of the Pennsylvania 1998 Quality Health Care Accountability and Protection Act, 40 Pa.C.S. §991.2101 et seq. Section 2166(a) of the Health Care Act requires that defendants promptly pay “clean claims” (as that term is defined in the statute) “within 45 days of receipt of the clean claim.” 40 Pa.C.S. §991.2166(a). When defendants fail to pay clean claims within 45 days of receipt they are required to pay “interest at 10 percentum per annum . . . beginning the day after the required payment date and ending on the date the claim is paid” in addition to the amounts owed for the clean claims. 40 Pa.C.S. §991.2166(b). Count VII of plaintiffs’ second amended class action complaint alleges that defendants’ failure to pay within 45 days, or pay interest thereon, constitutes a violation of the Health Care Act.

Defendants, on the other hand, argue that the Health Care Act confers “no private statutory cause of action.” (See defendants’ preliminary objections to plaintiffs’ second amended class action complaint at p. 1.) Plaintiffs respond to defendants’ argument in three ways. First, they argue that the Health Care Act provides an explicit private right to seek redress in this court; second, they argue that there is an implicit private right of action in the Health Care Act; and third, plaintiffs argue that the permissive language of the governing regulations confers a private right of action.

This court’s standard of review on preliminary objections is well established. Preliminary objections may be sustained only if it is clear from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief. Hazleton Area School District v. Bosak, 671 A.2d 277, 281 (Pa. Commw. 1996). The court must consider as true all the well-pleaded material facts set forth in the complaint and all reasonable inferences that may be drawn from those facts. Bower v. Bower, 531 Pa. 54, 56, 611 A.2d 181, 182 (1992). Where (as here) the grant of preliminary objections will result in the denial of a claim, or dismissal of a suit, preliminary objections should be sustained only in cases that are clear and free from doubt. Legman v. Scranton School District, 432 Pa. 342, 345, 247 A.2d 566, 569 (1968). Finally, the preliminary objector has the burden of supporting its objections to the court’s jurisdiction. Schmitt v. Seaspray-Sharkline Inc., 366 Pa. Super. 528, 531, 531 A.2d 801, 803 (1987).

This court finds that no private right of action is conferred by section 991.2166(a) of the Health Care Act, 40 Pa.C.S. §991.2166(a). First, there is no explicit right of action in the Health Care Act. Plaintiffs’ argument that section 2162(c)(5) of the Health Care Act (40 Pa.C.S. §991.2162(c)(5)) “confers an explicit private right of action upon a health care provider for a managed health plan’s failure to make timely payments within the 45 days permitted by the statute” is without merit. In fact, this particular provision does not address “clean claims” or the prompt payment requirements of section 2166. Instead, section 2162(c)(5) relates solely to appeals from an “external grievance decision” by a utilization review entity. Moreover, the term “grievance” is confined to disputes “concerning the medical necessity and appropriateness of a health care service” for an enrollee. 40 Pa.C.S. §991.2102. Therefore, section 2166 does not provide an explicit private right of action by providers for failure to timely pay clean claims.

Second, there is no evidence to suggest that the Health Care Act implies a private right of action. The Health Care Act vests the Department of Health and the Insurance Department with the responsibility to enjoin or penalize managed care plans for violations of the Act. See 40 Pa.C.S. §§991.2101,2102. Moreover, the regulations promulgated in March 2000, make it clear that the prompt payment provisions of section 2166 of the Health Care Act subject a managed care plan to only administrative complaints filed with or by the Insurance Department. See 31 Pa. Code §154.18. The Health Care Act makes no implicit reference whatsoever to a private right of action by health care providers in court.

Finally, plaintiffs argue that the permissiveness of the language of the Department of Insurance’s regulations indicates that the legislature intended to provide a private cause of action under the Health Care Act. Pursuant to the Department of Insurance regulations, a health care provider “may file a complaint either individually or in batches, with the department.” 31 Pa. Code §154.18. This language, however, merely creates the right to file a complaint with the department of Insurance. The right to complain to the Department of Insurance clearly does not imply a right to complain to this court. Accordingly, this claim is without merit.

Thus, this court finds that no private right of action is conferred by section 991.2166(a) of the Health Care Act, 40 Pa.C.S. §991.2166(a). Therefore, it is clear from the record that plaintiffs will not be able to prove facts legally sufficient to establish their right to relief. Accordingly, this court sustains defendants’ preliminary objections to Count VII of plaintiffs’ second amended complaint.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT

Also pending before this court is defendants’ motion for summary judgment to plaintiffs’ breach of contract claim. Count I of plaintiffs’ second amended complaint states, inter alia, that “plaintiffs and the members of the class entered into agreements with Aetna whereby plaintiffs and the other members of the class promised to provide pre-approved medical services to Aetna subscribers in exchange for prompt reimbursement for those services from Aetna.” (Plaintiffs’ second amended complaint, ¶38.) Plaintiffs’ complaint further states that “[a] reasonable amount of time, for such payment is within 30 days from the date of the claim.” Id.

The first of the two named plaintiffs in this action is Mark P. Solomon M.D., a plastic surgeon who entered into a specialist physician’s agreement with Aetna’s predecessor on June 28, 1985. (Solomon contract at 1.) In accordance with the terms of his contract, Solomon agreed, inter alia, to provide health care services to Aetna HMO subscribers in return for reimbursement at a rate established in Aetna’s fee policy. (Id. at §§1-2.)

Plaintiffs assert that defendants breached the parties’ contract by failing to pay claims for reimbursement within 30 days, to pay interest to plaintiffs on claims not paid within 30 days, and to pay in full all claims for procedures allegedly “pre-approved” by defendants.

In their motion for summary judgment, defendants argue that the supposed contractual requirements for timely payment alleged by plaintiffs do not appear anywhere in the contracts themselves. Moreover, defendants argue that, as a matter of law, this court cannot imply a time for payment. Defendants point to the fact that, throughout the 15 years of dealing between the parties, they have routinely paid claims beyond 30 days without paying interest. Defendants assert, therefore, that the record demonstrates that there is no genuine issue of any material fact as to the breach of contract claim and defendants are entitled to summary judgment as a matter of law.

Plaintiffs respond that this court should look to the parties’ course of dealing in order to imply a term not in the contract. Plaintiffs cite legal authority in support of their argument that there is in all contracts which are silent with respect to time for performance, an implied obligation to perform within a reasonable period of time. See e.g., Hodges v. Pennsylvania Millers Mutual Insurance Co., 449 Pa. Super. 341, 673 A.2d 973 (1996). Furthermore, plaintiffs point out that defendants’ “policy for the last 15 years has been to pay claims within 30 days after submission by the specialist physicians. ” (Plaintiffs’ response to defendants’ motion for summary judgment and their cross-motion for summary judgment at p. 1.) (emphasis in original)

Plaintiffs point to the deposition testimony of Aetna’s claim function head, Patricia Bustard, in support of their claim that defendants had a policy of paying claims within 30 days. (Id. at p. 2.) Plaintiffs assert that defendants’ alleged internal policy to pay claims within 30 days raises a genuine issue of material fact regarding whether defendants’ own conduct created an obligation to pay claims within 30 days. (Plaintiffs’ response to defendants’ motion for summary judgment and their cross-motion for summary judgment at pp. 4-5.)

The Pennsylvania Rules of Civil Procedure provide for the entry of summary judgment “whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report.” Pa.R.C.P 1035.2. The nonmovant for summary judgment is entitled to all reasonable inferences, and any doubts as to the existence of a factual dispute must be resolved in the nonmovant’s favor. Imler v. Hollidaysburg American Legion Ambulance Service, 731 A.2d 169, 172 (Pa. Super. 1999). Finally, because an order favorable to the moving party will prematurely end an action, summary judgment is appropriate in only the clearest of cases. Lapio v. Robbins, 729 A.2d 1229, 1231 (Pa. Super. 1999).

It is undisputed that the contract in question contains no explicit requirement that defendants pay claims within a specified time period. It is further undisputed that the contract contains no provision for the payment of interest on claims. Moreover, it is clear from the testimony of Dr. Solomon that no precedent of 30 day payment, or payment of interest, was created through his 15 year course of dealing with defendants. Therefore, the parties’ course of dealing does not give rise to an implied covenant on defendants’ part to pay claims within 30 days, or pay interest thereon.

Pennsylvania law is well-settled that a court “may imply a missing term in a parties’ contract only when it is necessary to prevent injustice and it is abundantly clear that the parties intended to be bound by such term.” Kaplan v. Cablevision of PA Inc., 448 Pa. Super. 306, 314, 671 A.2d 716, 720 (1996) (en banc), appeal denied, 546 Pa. 645, 693 A.2d 883 (1996). In Kaplan, which was a class action, the plaintiff cable television subscriber had alleged that Cablevision breached the parties’ subscription agreement by failing to rebate fees for periods of time when cable service had been interrupted. Unable to point to any provision in the agreement imposing this rebate obligation on Cablevision, plaintiff argued, just as plaintiffs argue here, that the court should “read into the agreement by ‘necessary implication’ this contractual obligation.” Id. The Superior Court, sitting en banc, affirmed the granting of Cablevision’s demurrer to the breach of contract claim, stressed that “[w]e may not imply the contractual duty to provide continuous uninterrupted service or unrequested credits for outages when it is unclear whether the cable companies clearly intended to be bound by this obligation.” 448 Pa. Super. at 315, 671 A.2d at 720; id.; accord Amerikohl Mining Inc. v. Mount Pleasant Township, 727 A.2d 1179, 1183-84 (Pa. Commw. 1999) (Court held that trial judge erred in implying term absent from contract, noting that “the doctrine of necessary implication may be applied only in limited circumstances” and only when it is “apparent that an obligation is within the contemplation of the parties at the time of contracting or is necessary to carry out their intentions.”).

Here the record conclusively demonstrates that Aetna never intended at all to be bound by the alleged obligations that plaintiffs now ask this court to imply. Indeed, Dr. Solomon’s deposition testimony clearly demonstrates that for 15 years, Aetna habitually paid his claims for reimbursement more than 30 days after submission. In fact, Dr. Solomon characterized Aetna’s alleged untimeliness in reimbursing his claims as a “pattern” which “had been ongoing and ongoing and ongoing.” (Solomon dep. at pp. 44-45.) Dr. Solomon further testified that “for 15 years or 14 years at that point I had been sending out bills to Aetna and in some cases I was routinely getting paid six months to 12 months after it was sent without a dime of interest.” (Id. at 45-46.) (emphasis added) In fact, Dr. Solomon testified that “eight or nine years ago” he consulted an attorney about this “pattern.” (Id. at pp. 44-45.)

Dr. Solomon further acknowledged that the practice of paying claims for reimbursement more than 30 days after submission was not unique to Aetna, but was common to all private insurers, including Independence Blue Cross/Independence Blue Shield, the other carrier with whom Solomon primarily dealt. (Id. at pp. 50-51, 102-104.) Accordingly, the court finds as a matter of law that no obligation to pay claims within 30 days, or pay interest thereon, arose between Dr. Solomon and defendants as a result of their course of dealing over a 15-year period.

Similarly, no obligation to pay claims within 30 days, or to pay interest thereon, arose between RNA and defendants by way of their course of dealing. Dr. Barrer and Dr. Pagnanelli individually entered into specialist physician agreements with Aetna’s predecessor on August 8, 1989, and December 7,1988, respectively. (Barrer contract at 1; Pagnanelli contract at 1.) The Barrer contract and the Pagnanelli contract were substantively identical to the Solomon contract in all relevant respects, containing essentially the same terms with respect to the provision of services, reimbursement, and termination. (Barrer contract §§1-2, 5; Pagnanelli contract §§1-2, 5.) Neither the Barrer contract nor the Pagnanelli contract made reference to the timing of reimbursement, the payment of any interest on allegedly untimely reimbursement, or any “pre-approval” procedures.

Dr. Barrer testified at his deposition that, in his course of dealing with Aetna since 1989, there were “many, many occasions” — “I would say the majority” — on which RNA claims for reimbursement were not paid within 30 days. (Barrer deposition atp. 34.) Indeed, Dr. Barrer characterized Aetna’s payment of claims for reimbursement more than 30 days after submission as “business as usual.” (Barrer transcript at p. 36.) Moreover, Dr. Barrer admitted that no one from Aetna ever told him that Aetna deemed itself contractually obligated to pay claims within 30 days or to pay interest and that, in fact, Aetna never paid interest to RNA. (Id. at 42.)

As with Dr. Solomon, there existed no custom or practice between Dr. Barrer and Aetna which would permit the court to imply a contractual obligation on Aetna’s part to pay RNA’s claims for reimbursement within 30 days or to pay interest. To the contrary, Dr. Barrer testified that throughout the many years of business dealings between RNA and-Aetna, Aetna regularly paid after 30 days, and never paid interest. Thus, Dr. Solomon’s and Dr. Barrer’s courses of dealing with defendants were alike. Both regularly received payments after 30 days, and neither ever received interest. Therefore, this court is unwilling to imply a contract term when it is clear from the record that the parties did not intend to be bound by the term.

Additionally, plaintiffs’ claim that defendants had an internal policy to pay claims within 30 days, and that such a policy is proof of a course of dealing between the parties. This argument, however, is without merit, plaintiffs were never made aware that defendants had an internal policy to pay claims within 30 days. Therefore, plaintiffs could not have relied upon defendants’ undisclosed internal policy. Indeed, plaintiffs never testified that they were ever told by defendants that their claims would be paid within 30 days.

Moreover, plaintiffs’ undisclosed internal policy was only an internal goal, as evidenced by Patricia Bustard’s testimony that the sought-after 30 day processing of claims was merely a “goal” upon which Aetna has tried to improve. (See Bustard deposition atpp. 122-25.) Thus, defendants adopting an internal goal does not create an enforceable contractual right on the part of plaintiffs, to whom the policy was never disclosed or promised.

Pennsylvania 1'aw is clear that the adoption of an internal policy in these circumstances does not give rise to any contractual duty on the part of the policy maker. Instructive here is the Pennsylvania Supreme Court’s decision in Morosetti v. Louisiana Land and Exploration Co., 522 Pa. 492, 564 A.2d 151 (1989). Morosetti was a class action in which former employees sued for severance pay on the basis of the employer’s undisclosed severance pay policy. In Morosetti, as here, plaintiffs contended that defendant’s internal policy evidenced an acknowledged contractual obligation that plaintiffs were entitled to enforce. The Supreme Court disagreed, stating, “[i]t is not sufficient to show they had a policy. It must be shown they offered it as binding terms of employment. A company may indeed have a policy upon which they intend to act, given certain circumstances or events, but unless they communicate that policy as part of a definite offer of employment they are free to change as events may require.” 522 Pa. at 496, 564 A.2d at 153.

Numerous other cases hold to the same effect. See e.g., Stumpp v. Stroudsburg Municipal Authority, 540 Pa. 391, 396, 658 A.2d 333, 335 (1995) (“It is basic contract law that one cannot suppose, believe, suspect, imagine or hope that an offer has been made. An offer must be intentional, definite, in its terms and communicated; otherwise, no meeting of the minds can occur.”); Luteran v. Loral Fairchild Corp., 455 Pa. Super. 364, 373-74 n.3, 688 A.2d 211, 216 n.3 (1997) (“A company may indeed have a policy upon which they intend to act, given certain circumstances or events, but unless they communicate that policy as part of a definite offer of employment they are free to change as events may require.”); Bernstein v. Commonwealth, 151 Pa. Commw. 401, 412, 617 A.2d 55, 61 (1992) (“[AJlthough the Commonwealth may have adopted a policy in 1976 to pay the full cost of retired employees’ health care plans under Option II, neither the pleaded facts nor the attached exhibits indicate that the Commonwealth ever communicated that policy ....”).

The Supreme Court’s holding in Morosetti clearly governs in the instant case. Here, it is undisputed that Aetna never communicated to plaintiffs its internal policy of attempting to provide reimbursement for claims within 30 days. Moreover, Aetna explicitly disavowed to plaintiffs any obligation to pay claims within 30 days or to pay interest on claims not paid within 30 days. (Solomon deposition at pp. 73-74.) Accordingly, no duty to pay claims within 30 days, or pay interest thereon, arose as a result of defendants’ internal undisclosed policy.

Thus, this court finds that there was no custom, practice, or course of dealing between plaintiffs and Aetna by which this court could imply that Aetna was obligated either to pay plaintiffs’ claims for reimbursement within 30 days or to pay interest thereafter. Moreover, this court finds that defendants’ undisclosed internal policy to pay claims within 30 days does not constitute evidence of a custom, practice, or course of dealing, and does not give rise to a duty on defendants’ part to pay claims within 30 days or pay interest thereon. Accordingly, as there is no genuine issue of material fact regarding defendants’ alleged obligation to pay claims within 30 days or pay interest thereon, this court grants defendants’ motion for summary judgment.

CONCLUSION

For the foregoing reasons, this court sustains defendants’ preliminary objections to Count VII (violation of the Pennsylvania Health Care Act) of plaintiffs’ second amended complaint, grants defendants’ motion for summary judgment to Count I (breach of contract) of plaintiffs’ second amended complaint, denies plaintiffs’ cross-motion for summary judgment and enters the following two orders.

ORDER

And now, June 19, 2001, upon consideration of defendants’ preliminary objections to Count VII (violation of the Pennsylvania Health Care Act) of plaintiffs’ second amended complaint, and all submissions related thereto, it is hereby ordered that defendants’ preliminary objections are sustained, and Count VII of plaintiffs’ second amended complaint is dismissed with prejudice.

ORDER

And now, June 19, 2001, upon consideration of defendants’ motion for summary judgment to Count I (breach of contract) of plaintiffs’ second amended complaint, and all submissions related thereto, it is hereby ordered that defendants’ motion for summary judgment is granted, and plaintiffs’ Count I is dismissed with prejudice. It is further ordered that plaintiffs’ cross-motion for summary judgment is denied.

      . This court also dismissed plaintiffs’ count for breach of the implied covenant of good faith and fair dealing, on the grounds that there is no evidence in the parties’ agreement, or in their conduct, which suggests the existence of an implied covenant between the parties. The absence of any implied covenant is more fully addressed in the “summary judgment” section of this opinion.

      . Count VII to plaintiffs’ amended complaint also alleges that defendants’ acts and omissions .,. constitute unfair methods of competition or unfair or deceptive acts or practices within the meaning of the Unfair Insurance Practices Act, 40 Pa.C.S. §1171.5. (Plaintiffs’ second amended complaint, ¶¶70, 71.) Plaintiffs, however, have abandoned this claim, and this court will therefore not address it. (See memorandum in support of plaintiffs’ preliminary objections to defendants’ preliminary objections to plaintiffs’ second amended complaint at pp. 4-5 n.2.)

      . Plaintiffs Mark Solomon M.D., and Regional Neurosurgical Associates P.C., had separate contracts with defendants. RNA is a partnership comprised of Steven Barrer and David M. Pagnanelli. Although Dr. Barrer and Dr. Pagnanelli separately entered into individual contracts, both parties to this litigation concede that those contracts are “virtually identical in all material respect” to the contract entered into between Dr. Solomon and defendants. (See plaintiffs’ response to defendants’ motion for summary judgment and their cross-motion for summary judgment at p. 3.)

      . Plaintiffs’ second amended complaint also alleges several instances where “Aetna gave Solomon ‘pre-approval’ to perform a certain medical procedure on a patient and then later, after the procedure was performed and a claim submitted by Solomon, Aetna withdrew its pre-approval and denied the claim entirely.” (Plaintiffs’ second amended complaint, ¶35.) However, at his deposition, Solomon stated that he ultimately received payment on these claims, and therefore is now only seeking the payment of interest. (Solomon deposition at pp. 170-72.)

      . Plaintiffs do not provide any argument in support of their cross-motion for summary judgment. Moreover, as this court has concluded that defendants’ internal policy created no obligation on defendants to pay claims within 30 days, or pay interest thereon this court hereby denies plaintiffs’ cross-motion for summary judgment.


source: Caselaw Access Project

author: QUIÑONES ALEJANDRO, J.,

license: Public Domain

text:
    Feingold v. Malone

      Allen L. Feingold, pro se for plaintiffs.

      Wayne A. Schaible, for defendant.
    May 25, 2001
   QUIÑONES ALEJANDRO, J.,

INTRODUCTION

Dora Feingold and Allen L. Feingold, plaintiffs, argue on appeal that the preliminary objection challenging venue and requesting a transfer of the case to Montgomery County, filed by Janet Malone, defendant, was erroneously sustained. This motion judge disagrees.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Upon review of the complaint, preliminary objection, and the response to the preliminary objection, the following facts were considered by this motion judge when sustaining defendant’s preliminary objection:

“Plaintiffs, attorneys by profession, are husband and wife, who reside in Philadelphia County, Pennsylvania.
“Defendant is a resident of Haverford, Montgomery County, Pennsylvania, and is employed as a nurse in Montgomery County, Pennsylvania.
“On November 24, 1998, Dora Feingold (plaintiff-wife), was operating her personally owned Mercedes automobile on St. Asaph’s Road and/or Presidential Boulevard, in Bala Cynwyd, Montgomery County, Pennsylvania, when her vehicle was rear ended by a Honda vehicle owned and operated by defendant. Plaintiff-wife suffered personal injuries, and the motor vehicle sustained damages.”

On November 14, 2000, plaintiffs filed a civil action against defendant in Philadelphia County, seeking recovery for personal injuries and property damage. Defendant was served with a copy of the complaint on December 6, 2000, in Montgomery County, Pennsylvania.

On December 23,2000, defendant filed a preliminary objection to plaintiffs’ complaint challenging that venue was improper in Philadelphia County, pursuant to the provisions of Pa.R.C.P. 1006(a), since defendant resides in Montgomery County, the cause of action arose in Montgomery County, and defendant does not regularly conduct business in Philadelphia County. On January 16, 2001, plaintiffs filed a response to defendant’s preliminary objection. Subsequently, these pleadings were assigned to the undersigned motion judge. By order dated January 30,2001, this motion judge sustained defendant’s preliminary objection and transferred the case to Montgomery County, Pennsylvania.

Dissatisfied with this order, on February 6,2001, plaintiffs filed this instant appeal.

ISSUE

In response to an order issued in accordance with Pa.R.A.P. 1925(b), plaintiffs, on March 7, 2001, filed of record a statement of matters complained of on appeal and argued that this motion judge erred in sustaining defendant’s preliminary objection to venue where:

“(1) Plaintiffs alleged that defendant maintained an office and transacted business in Philadelphia County and was thus amenable to service there;
“(2) Defendant did not take depositions on disputed issues of material fact and thus admitted the truth of all allegations contained in the complaint, thereby conceding that venue of this matter was proper in Philadelphia;
“(3) The trial court improperly considered the convenience, rather than the propriety, of plaintiffs’ chosen forum; and
“(4) The trial court erred in considering the convenience of Philadelphia as a forum where defendant failed to place any evidence on the record indicating that Philadelphia County was an inconvenient forum.”

LAW AND DISCUSSION

Clearly, a trial/motion judge has the discretion to sustain or overrule preliminary objections that argue improper venue. Mathues v. Tim-Bar Corp., 438 Pa. Super. 231, 234, 652 A.2d 349, 351 (1994). A court’s ruling will depend on the facts of the particular case and will not be disturbed if the decision is a reasonable one in light of the facts. Masel v. Glassman, 456 Pa. Super. 41, 45, 689 A.2d 314, 316 (1997). “A plaintiff’s choice of forum is given great weight and a defendant has the burden in asserting a challenge to the plaintiff’s choice of venue.” Shears v. Rigley, 424 Pa. Super. 559, 564, 623 A.2d 821, 824 (1993). Further, a decision to transfer will not be reversed unless there is a showing of an abuse of discretion. Johnson v. Henkels & McCoy Inc., 707 A.2d 237, 239 (Pa. Super. 1997). To show an abuse of discretion, an appellant must show that in reaching a conclusion, a law was overridden or misapplied, or that the judgment exercised was manifestly unreasonable, or the result of bias, prejudice, or ill will. Id.

The proper way to challenge venue in a civil action is through a preliminary objection. Boyce v. St. Paul Property & Liability Insurance Co., 421 Pa. Super. 582, 588, 618 A.2d 962, 965 (1992); see also, Pa.R.C.P. 1006(e) and 1028(a)(1). Questions of venue must be raised at the first reasonable opportunity or they are waived. Kubik v. Route 252 Inc., 762 A.2d 1119 (Pa. Super. 2000). Further, Pa.R.C.P. 1006(e) provides that where there is a challenge of improper venue made by preliminary objections, if the preliminary objection is sustained and there is a county of proper venue in the state, the court shall transfer the case to the appropriate court of that county with costs and fees to be paid by the plaintiff.

Venue in an action brought against individual(s) is governed by Pa.R.C.P. 1006(a), which provides, in part: “an action against an individual may be brought in and only in a county in which the individual may be served or in which the cause of action arose or where the transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.” Pa.R.C.P. 1006(a). (emphasis added)

Generally, an original process may be served onto an individual by handing a copy to the defendant, or by handing a copy at the residence of the defendant (to an adult member of the defendant) or at any office or usual place of business of the defendant (to an agent or person in charge of the office). Pa.R.C.P. 402.

Here, plaintiffs do not contest that the accident occurred in Montgomery County, nor that defendant resides and was served in Montgomery County. What they dispute in their appeal is that venue is inappropriate in Philadelphia County, because defendant allegedly conducts business in Philadelphia County. They also argue that this motion judge abused her discretion when improperly considering the convenience and not the propriety of plaintiff’s choice of forum. It would appear that plaintiffs, acting pro se, have confused the rules of civil procedure.

The rule that venue lies against a defendant because of the defendant’s regular conduction of business in a county applies to corporations and/or other similar entities, but such rule does not apply to individuals. Gilfor ex rel. Gilfor v. Altman M.D., 770 A.2d 341 (Pa. Super. 2001); see also, Pa.R.C.P. 2179. As stated, venue as to individuals lies where the individual can be served or the cause of action arose. Here, all of those circumstances occurred in Montgomery County, Pennsylvania; that is, the cause of action arose in Montgomery County; defendant resides, is employed, and was served in Montgomery County. (Service was properly effectuated in accordance with Rule 402.)

Next, plaintiffs incorrectly argue that this motion judge erred in considering the convenience of the forum. Pa.R.C.P. 1006(d)(1) defines the doctrine of forum non conveniens, as:

“For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.” Pa.R.C.P. 1006(d)(1). (emphasis added)

This motion judge is acutely aware of the distinction between preliminary objections challenging venue filed pursuant to Rule 1028(a)(1) and relying on Rule 1006(a), and a petition to transfer venue based on forum non conveniens filed pursuant to Rule 1006(d)(1). Clearly, Rule 1006(d) cannot apply to a case where venue is wrongly laid; this is separately regulated by Rule 1006(a). U.S. Cold Storage Corp. v. Philadelphia, 431 Pa. 411, 419, 246 A.2d 386, 390 (1968). Here, defendant is not seeking a change of venue based on forum non conveniens. This motion judge was not asked to consider such factors as: the relative ease of access to sources of proof, availability of compulsory process for the attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, the possibility of viewing the premises and enforceability [of the order]. Scribner v. Mack Trucks, 427 Pa. Super. 71, 628 A.2d 435 (1993). Rather, this motion judge was asked to decide whether venue is proper in Philadelphia County. Based on the evidence of record, it is not. Again as stated, it is undisputed that the automobile accident occurred in Montgomery County, and defendant resides, is employed, and was served in Montgomery County. In light of Rule 1006(a), Montgomery County is the seat of this litigation and only there can it be heard, once defendant challenges venue, as she did. Salay v. Braun, 427 Pa. 480, 235 A.2d 368 (1967).

Lastly, plaintiffs take exception with the fact that defendant did not take depositions on disputed issues of material fact, and thus, admitted the truth of all allegations contained in the complaint thereby conceding that venue was proper in Philadelphia. To determine whether venue is indeed improper, a court must rely on the facts raised by depositions or otherwise. Pa.R.C.P. 1028(c)(2); Hamre v. Resnick, 337 Pa. Super. 119, 120 n.2, 486 A.2d 510 n.2 (1984). In Hamre, the court acknowledged that relying only on the pleadings as the record was a correct procedure in many cases, citing Matter of D.L.S. and J.L.S., 278 Pa. Super. 446, 420 A.2d 625 (1980). Here, this motion judge opines that depositions were not necessary.

In summary, this motion judge’s decision to transfer venue to Montgomery County was in accordance with Rule 1006(a), the evidence of record, and the case law, which unequivocally support a finding that venue properly lies in Montgomery County and not in Philadelphia County, Pennsylvania. This motion judge’s ruling had nothing to do with the convenience or lack of convenience of the forum selected by plaintiffs. Consequently, in this motion judge’s opinion, plaintiffs’ arguments are without merit.

CONCLUSION

Based on the foregoing analysis, this motion judge opines that no errors were committed in sustaining defendant’s preliminary objection challenging the appropriateness of venue. This motion judge respectfully recommends that plaintiffs’ appeal be dismissed, and that the order transferring venue to Montgomery County be affirmed.


author: LESKINEN, J.,

text:
    Allstate Insurance Co. v. Seelye

      C.P. of Fayette County,
    no. 1851 of 2002, G.D.

      David J. Obermeier, for plaintiff.

      John M. Purcell, for defendants.
    May 19, 2003
   LESKINEN, J.,

Before this court is a motion for summary judgment filed by plaintiff, Allstate Insurance Company, and a cross-motion for summary judgment filed by defendants, Mary S. Seelye and Gary C. Seelye, individually and as parents and natural guardians of Nathan Seelye.

After full consideration of the record, applicable law, briefs and arguments of counsel, this court finds that the rejection form used by plaintiff was not in compliance with 75 Pa.C.S. §1738, and is void; therefore this court denies plaintiff’s motion for summary judgment, and grants defendants’ cross-motion for summary judgment.

BACKGROUND

On April 18, 1997, Nathan was a passenger in a vehicle driven by Mary that was involved in a motor vehicle accident with an uninsured motorist. Because of this collision, Nathan sustained serious and permanent injuries and incurred medical bills in excess of $600,000. At the time of the collision, Mary and Gary maintained a motor vehicle insurance policy with Allstate. The policy afforded uninsured motorist coverage in the amount of $50,000 per person and $100,000 per accident. The defendants insured three cars under this policy at the time of the collision; however, Allstate claims defendants rejected stacking of uninsured motorist coverage limits by signing a rejection form. As a result of the collision and due to the fact that the other driver was uninsured, defendants made a claim for uninsured motorist coverage to Allstate, and Allstate tendered the amount of $50,000 to Mary and $50,000 to Nathan,

On February 5,2003, plaintiff filed the instant motion for summary judgment to confirm the validity of the rejection form and preclude all further claims by defendants for “stacked” uninsured motorist benefits. On March 10, 2003, defendants filed the instant cross-motion for summary judgment to establish that the rejection form was invalid and that they are entitled to “stacking” under the policy.

DISCUSSION

The purpose of the summary judgment rule is to eliminate cases before trial where a party cannot make out a claim or a defense after relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). Summary judgment is proper when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000).

Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Davis v. Resources for Human Development Inc., 770 A.2d 353 (Pa. Super. 2001).

If there are no material issues of fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992), allocatur denied, 532 Pa. 663, 616 A.2d 985 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001), allocatur denied, 568 Pa. 624, 793 A.2d 909 (2002).

The trial court must confine its inquiry when confronted with a motion for summary judgment to the question of whether or not a material factual dispute exists. Township of Bensalem v. Moore, 152 Pa. Commw. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Commonwealth of Pennsylvania, 134 Pa. Commw. 494, 579 A.2d 1358 (1990). For summary judgment purposes, a material fact is one that directly affects the outcome of the case. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000). “Thus, the over-all purpose of a motion for summary judgment is to dispose of those cases in which there exists no factual issue to be decided at trial.” Harris v. Hanberry, 149 Pa. Commw. 300, 302, 613 A.2d 101, 102 (1992).

The sole issue before this court is whether the 1990 rejection form signed by Gary, as the first named insured, is a valid waiver of “stacking” of uninsured motorist coverage.

“Stacking” is a term of art in the insurance business, which is defined as the ability to add the coverages available from different vehicles and/or different policies to provide a greater amount of coverage than is available under any one vehicle or policy. McGovern v. Erie Insurance Group, 796 A.2d 343 (Pa. Super. 2002).

Section 1738 of the Vehicle Code provides for the availability of stacking of uninsured and underinsured benefits and the procedure and form used to waive stacking of said benefits. The case at bar deals with uninsured coverage only; and section 1738 states in pertinent part:

“Section 1738. Stacking of uninsured and underinsured benefits and option to waive
“(a) Limit for each vehicle. — When more than one vehicle is insured under one or more policies providing uninsured or underinsured motorist coverage, the stated limit for uninsured or underinsured coverage shall apply separately to each vehicle so insured. The limits of coverages available under this subchapter for an insured shall be the sum of the limits for each motor vehicle as to which the injured person is an insured.
“(b) Waiver. — Notwithstanding the provisions of subsection (a), a named insured may waive coverage providing stacking of uninsured or underinsured coverages in which case the limits of coverage available under the policy for an insured shall be the stated limits for the motor vehicle as to which the injured person is an insured.
“(c) More than one vehicle. — Each named insured purchasing uninsured or underinsured motorist coverage for more than one vehicle under a policy shall be provided the opportunity to waive the stacked limits of coverage and instead purchase coverage as described in subsection (b). The premiums for an insured who exercises such waiver shall be reduced to reflect the different cost of such coverage.
“(d) Forms.—
“(1) The named insured shall be informed that he may exercise the waiver of the stacked limits of uninsured motorist coverage by signing the following written rejection form:
“Uninsured Coverage Limits
“By signing this waiver, I am rejecting stacked limits of uninsured motorist coverage under the policy for myself and members of my household under which the limits of coverage available would be the sum of limits for each motor vehicle insured under the policy. Instead, the limits of coverage that I am purchasing shall be reduced to the limits stated in the policy. I knowingly and voluntarily reject the stacked limits of coverage. I understand that my premiums will be reduced if I reject this coverage.
“Signature of First Named Insured
“Date
“(2)....
“(e) Signature and date. — The forms described in subsection (d) must be signed by the first named insured and dated to be valid. Any rejection form that does not comply with this section is void.” 75 Pa.C.S. §1738.

The rejection form in the case at bar contains the identical paragraph as the form set forth in section 1738 (d)(1); however, the caption reads “Rejection of Stacked Uninsured Coverage Limits.” (emphasis supplied)

Plaintiff argues that the additional language in the caption clarifies the purpose of the form, that the additional language has been approved by the insurance commissioner, and that the modified form has been used thousands of times by several different insurers. Plaintiff has cited no case that supports its argument.

Defendants argue that the rejection form is not the form set forth in the statute; that the form therefore does not comply with section 1738; and that, in accordance with section 1738(e), the form is therefore void. In support of their argument, defendants cite the case of Friel v. Prudential Property and Casualty Insurance Co., 42 D.&C.4th 221 (1999). In Friel, the Court of Common Pleas of Bucks County held, on identical relevant facts, that a signed waiver of stacked underinsured motorist coverage limits was invalid where the written rejection form failed to use the exact title required by section 1738.

The court in Friel cited the Superior Court’s decision in Winslow-Quattlebaum v. Maryland Casualty Company, 723 A.2d 681 (Pa. Super. 1999), however, and, as plaintiff notes in its brief to this court, the Pennsylvania Supreme Court has reversed that decision, 561 Pa. 629, 752 A.2d 878 (2000). Unlike the case at bar, Winslow-Quattlebaum revolved around the rejection of underinsured motorist benefits under section 1731 of the MVFRL. In Winslow-Quattlebaum, an insured brought action to recover underinsured motorist benefits despite signing a rejection form. 75 Pa.C.S. §1731 (c.l) states that: “Insurers shall print the rejection forms required by subsections (b) and (c) on separate sheets in prominent type and location.” The insured argued that the rejection form was void because the rejection form for under-insured motorist coverage was not presented on a “separate” sheet, but was on the same sheet as the rejection form for stacking of underinsured motorists coverages. The trial court ruled for the insurer, the Superior Court reversed, and the Supreme Court reinstated the trial court’s decision. The Supreme Court held that section 1731 (c.l) only required that the rejection form set forth in section 73ll(b. 1) for uninsured motorist coverage appear on a sheet “separate” from the rejection form set forth in section 7311(c) for underinsured motorist coverage. Therefore, the rejection form in question in Winslow-Quattlebaum was in compliance with section 1731(c.1).

Even though the Friel decision cited the overturned Winslow-Quattlebaum opinion, however, the reversal does not affect its outcome. In Winslow-Quattlebaum, the Supreme Court interpreted the word “separate” to apply only to “the rejection forms required by subsections (b) and (c)....” That specific holding has nothing to do with the additional language that constitutes the defect alleged here and in Friel. While the holding in Friel is not binding, this court agrees that it was correctly decided.

No court can read the collective mind of the legislature, therefore, judges must follow the established principles of statutory construction. The Supreme Court of Pennsylvania has held that when the language of a statute is clear and unambiguous, its provisions must be read in accordance with their plain meaning and common usage. Only when the statutory language is unclear may the court delve into legislative intent. Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d 657 (1998). The Supreme Court has also noted that the rules of statutory construction require that whenever possible each word in a statutory provision is to be given meaning and is not to be treated as surplusage. Winslow-Quattlebaum, supra.

The language in 75 Pa.C.S. §1738 is clear and unambiguous. The statute explains the concept and limitations of “stacking” (section 1738(a)). The statute provides a manner in which the insured may waive the “stacking” of coverages (1738(b) and 1738(c)). Furthermore, the statute explicitly provides the written rejection form to be used to effectuate said waiver of stacking (section 1738(d)), and voids the effect of any form not in compliance (section 1738(e)).

Section 1738 was part of a deliberate effort by the legislature to allow for automobile insurance “cost-containment.” The cost of insurance can be reduced if policyholders have the option not to purchase certain coverages and limits that previously were mandatory. Because the general public had settled expectations for the standard content of an automobile insurance policy in Pennsylvania, however, the legislature clearly specified the forms and procedures for waiving various coverages and limits.

It is obvious that the caption “Rejection of Stacked Uninsured Coverage Limits” used by plaintiff on the rejection form differs from the caption of the rejection form set forth in the statute. Plaintiff points out that this difference was approved by the insurance commissioner, that this difference exists on thousands of other signed rejection forms, and that the different language arguably clarifies the purpose of the form.

The approval of the modified form by the department of the executive branch of government that specializes in insurance issues is entitled to careful consideration. However, this court is at a complete loss to understand why the executive branch would approve a form that used different language than the form specifically set forth in the legislation. Why would the executive branch even consider changing punctuation, much less language? If the form specified by the legislature was inadequate, the governor could have vetoed the law, or suggested an amendment. There are areas of the law where the legislature grants the executive branch the authority to promulgate regulations and to “flesh out” laws that are a “skeleton” when passed. This is not such an area. The statute is clear and complete, and leaves no room for modification by the insurance commissioner or anyone else. By “tinkering” with the language specified by the legislature, the modification of the form destroys the very predictability of outcome that the statute was designed to provide.

The allegation that the non-compliant form is being used by many insurers and has been signed by thousands of policyholders causes this court to hesitate, but ultimately is of no consequence. The votes were counted when the legislation was passed. The fact that many insurance companies, and their attorneys, have disregarded the plain language of the law is no reason to condone that error. If “cost-containment” suffers from the error, it is not the fault of the legislature, and it is not the fault of this court. The statute was passed so that the courts would not have to inquire into what either party intended when the form specified in the statute was signed. The courts cannot listen to the insurers give their interpretation of the modification, without also hearing each individual policyholder give their understanding of it.

Finally, it is not for this court to decide whether the re-captioning of the form clarifies or obfuscates the purpose of the form. That decision was made by the legislature and approved by the governor when the statute was signed into law. The language of the form, including the language of its caption, was specified by the law. The deviation from the language explicitly provided in 75 Pa.C.S.§ 1738(d)(1) renders the formnoncompliant with the statute. The remedy for failure to comply with the form specified by the legislature is clearly set forth in the same statute. Thus, in accordance with 75 Pa.C.S. §1738(e), the non-compliant rejection form is void.

Wherefore, this court enters the following:

ORDER

And now, May 19, 2003, upon consideration of the motion for summary judgment filed on behalf of the plaintiff, Allstate Insurance Company, and upon further consideration of applicable law, and the briefs and arguments of counsel, it is hereby ordered and decreed that plaintiff’s motion for summary judgment is denied.

ORDER

And now, May 19, 2003, upon consideration of the cross-motion for summary judgment filed on behalf of defendants, Mary S. Seelye and Gary C. Seelye, individually and as parents and natural guardians of Nathan Seelye; and upon further consideration of applicable law, and the briefs and arguments of counsel, it is hereby ordered and decreed that defendants’ cross-motion for summary judgment is granted.

      . Friel was the only case directly on point with the facts in the case at bar, and this court notes that the majority of case law deals with 75 Pa.C.S §1731, not with 75 Pa.C.S. §1738. This court further notes that the entire MVFRL should be read in pari materia. See Lucas v. Progressive Casualty Insurance Co., 451 Pa. Super. 492, 680 A.2d 873 (1996). “Statutes or parts of statutes are in pari materia, when they relate to the same persons or things or to the same class of persons or things.” Section 1 Pa.C.S. 1932(a).


author: NEALON, J.,

text:
    DeFazio v. Board of Directors of North Pocono School District

      C.P. of Lackawanna County,
    no. 03 CV 1247.

      Bruce S. Zero, for plaintiff.

      John E. Freund III, for defendants.
    May 21, 2003
   NEALON, J.,

The Board of Directors of the North Pocono School District has filed preliminary objections seeking to dismiss this mandamus action which has been brought by the Superintendent of Schools for the North Pocono School District. Plaintiff Louis V. DeFazio asserts that the board failed to comply with the mandatory provisions of the Public School Code of 1949 in the manner in which it declined to renew his contract for another term. An arguable interpretation of the School Code required the board to notify DeFazio of its intention to consider other candidates for superintendent at a “regular meeting” conducted prior to January 31, 2003. Since the board so notified DeFazio at a “special meeting” rather than a “regular meeting” and neglected to take formal action at a “regular meeting” until March 12, 2003 (i.e., 110 days prior to the termination of his contract), DeFazio may be entitled to mandamus relief, and the board’s preliminary objections will therefore be denied.

I. FACTUAL BACKGROUND

The well pleaded averments of the complaint reflect that on March 23,2000, the board appointed DeFazio as the district superintendent “at a special meeting” conducted pursuant to section 1073 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P. S. §10-1073. (See plaintiff’s complaint, exhibit A, p. 1.) The employment contract that was executed by DeFazio and the board provided for a term of employment of three years and 60 days from April 10, 2000 through June 30, 2003. (Id., ¶1.) Paragraph 12 of the contract governs DeFazio’s reappointment rights and states, in pertinent part:

“If, at any time, the board of school directors of the district decides that it does not desire to renew the contract of the superintendent for another term, the district shall notify Dr. DeFazio in writing by certified mail, no later than 150 days of the final year of this agreement, of the district’s intent not to reappointment him. Should Dr. DeFazio not be so notified, he shall be reappointed at the next regular board meeting of the board of school directors of the district following the first day of the final year of the agreement for a term of years not less than the length of the expiring term, and the terms and conditions of this agreement shall be incorporated into a successor agreement unless mutually agreed otherwise by the district and Dr. DeFazio.” (Id., ¶12.)

During a “special meeting” on December 17, 2002, the board “voted to direct the secretary of the board of education to place an appropriate advertisement for the position of Superintendent of Schools for the North Pocono School District and to further notify Louis V. DeFazio that the board of education will consider other candidates for the position of Superintendent of Schools for the North Pocono School District.” (See plaintiff’s complaint ¶12.) The complaint is devoid of any allegation that the board elected or approved a new superintendent at the time of the special meeting. To the contrary, DeFazio avers that during a regular meeting of the board on March 12, 2003, a motion was made to extend DeFazio’s contract for an additional three years, but a majority of the board members “voted not to renew Louis V. DeFazio’s contract.” {Id., ¶11.)

DeFazio maintains that under section 1073(b) of the code, the board was entitled to renew or cancel DeFazio’s contract at a regular meeting provided that it occurred at least 150 days before the expiration of his term on June 30, 2003. Since the board failed to take such action at a “regular meeting,” as opposed to a “special meeting,” prior to January 31, 2003, DeFazio submits that 24 P.S. §10-1073(b) extends his term as superintendent for an additional three years. {Id., ¶¶14-15.) DeFazio commenced this mandamus action on March 21,2003, seeking an order directing the board to comply with section 1073(b) of the code by renewing his contract for a term through June 30, 2006. {Id., pp. 6-7.)

On April 9, 2003, the board filed preliminary objections in the nature of a demurrer seeking the dismissal of this case on the grounds that it is clear and free from doubt that the board complied fully with the code in declining to renew DeFazio’s term as superintendent. The gravamen of the board’s demurrer is that the code’s requirement that the superintendent be duly notified of his retention or termination at a regular meeting is directory rather than mandatory such that the board was at liberty to take such action at a special meeting instead of a regular meeting. (See defendant’s brief, p. 3.) DeFazio counters that the code’s provisions governing board actions at special and regular meetings are mandatory and that the board’s violation of section 1073 warrants the renewal of his contract by operation of law. The parties have submitted their respective memoranda of law and following the completion of oral argument on May 19, 2003, this matter was submitted for a decision.

H. DISCUSSION

(A) Standard of Review

In its preliminary objections, the board contends that DeFazio’s mandamus complaint should be dismissed as a matter of law since “[i]t is clear that [DeFazio] is not entitled to the relief he seeks.” (See defendant’s brief, pp. 5-6.) When ruling on preliminary objections, “[t]he impetus of our inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven.” City Lighting Products Co. v. Carnegie Institute, 816 A.2d 1196, 1197 (Pa. Super. 2003). Stated differently, “[t]he question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.” Adams v. Copper Beach Townhome Communities L.P., 816 A.2d 301, 304 (Pa. Super. 2003).

In ruling on preliminary objections, we must accept as true all well-pleaded material allegations set forth in the complaint, as well as all inferences that can be reasonably deduced therefrom. Meade v. PennDOT, 813 A.2d 937, 940 (Pa. Commw. 2002); Zazzera v. Roche, 54 D.&C.4th 225, 230 (Lacka. Cty. 2001). Preliminary objections should be sustained only where it is clear and free from doubt that the law will not permit recovery based upon the facts averred and if any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. D.N. v. V.B., 814 A.2d 750, 752 (Pa. Super. 2002); Meade, supra. Furthermore, preliminary objections should not be sustained merely because of the novelty of a claim or theory that is being advanced in the challenged pleading. Denton v. Silver Stream Nursing and Rehabilitation Center, 739 A.2d 571, 575 (Pa. Super. 1999); Olsofsky v. Progressive Insurance Co., 52 D.&C.4th 449, 455 (Lacka. Cty. 2001).

(B) School Code Requirements

Resolution of the district’s preliminary objections is controlled by the provisions of the School Code governing the manner in which superintendents may be approved or discharged. Unlike principals, teachers, and other professional employees, superintendents do not enjoy tenure nor are they protected by collective bargaining under Act 195. Nevertheless, superintendents have “obviously been given select consideration by the legislature in the School Code” which provides them with “[l]ong-term job security for that office ... by mandating a minimum contract length of at least three years, by restricting removal to four specific reasons, [and] by forcing the school boards to make a decision on retention at least five months before the expiration of the contract . . ..” Burns v. Board of Directors of Uniontown Area School District, 748 A.2d 1263, 1266 (Pa. Commw. 2000). To that end, section 1073 of the code entitled “Manner of election or approval” states:

“(a) The board of school directors of each school district, except in school districts of the first class, shall meet at its regular place of meeting, during the last year of the term of the district superintendent or at any other time when a vacancy shall occur in the office of district superintendent, at an hour previously fixed by the board. The secretary of each board of school directors shall mail to each member thereof at least five days beforehand, a notice of the time, place and purpose of such meeting. At such meeting the board shall elect or approve a properly qualified district superintendent to serve a term of from three to five years from the first day of July next following his election or from a time mutually agreed upon by the duly elected district superintendent and the board of school directors.
“(b) At the regular meeting of the board of school directors occurring at least 150 days prior to the expiration date of the term of office of the district superintendent, the agenda shall include an item requiring affirmative action by five or more members of the board of school directors to notify the district superintendent that the board intends to retain him for a further term of from three (3) to five (5) years or that another or other candidates will be considered for the office. In the event that the board fails to take such action at a regular meeting of the board of school directors occurring at least 150 days prior to the date of the term of office of the district superintendent, he shall continue in office for a further term of similar length to that which he is serving. ” 24 P.S. §10-1073(a)-(b). (emphasis added)

The plain language of the code provides school boards with two options when addressing the appointment or termination of a superintendent. First, under section 1073(a), the board may convene a duly noticed regular meeting or special meeting during the last year of the superintendent’s term in order to “elect or approve a properly qualified district superintendent to serve a term of from three to five years.” In the alternative, the board may proceed under section 1073(b) by conducting “a regular meeting ... at least 150 days prior to the expiration date” of the superintendent’s term “to notify the district superintendent that the board intends to retain him for a further term... or that another or other candidates will be considered for the office.” If the board “fails to take such action at a regular meeting” at least 150 days before the date on which the superintendent’s term expires, section 1073(b) mandates that “he shall continue in office for a further term of similar length to that which he is serving.”

In the case at hand, the board did not hold a special or regular meeting under section 10-1073(a) to “elect or approve” a superintendent, nor did it convene “a regular meeting” at least 150 days prior to the expiration of DeFazio’s term on June 30, 2003, to notify him of its intention to either retain him or consider other candidates for superintendent. Instead, the board conducted a “special meeting” on December 17,2002, at which time it directed the secretary to advertise the position of superintendent and to notify DeFazio that other superintendent candidates would be considered. It is beyond dispute that the board did not “elect or approve” a superintendent during the “special meeting” on December 17, 2002. The only “regular meeting” of the board which formally addressed DeFazio’s employment status occurred on March 12,2003, which was less than 150 days prior to the expiration of his term on June 30, 2003. DeFazio submits that the action which was taken by the board during the “special meeting” on December 17, 2002, could only have been conducted during a “regular meeting” prior to January 31,2003, and that the district’s failure to take such statutory action entitles DeFazio to a new term under 24 P.S. §10-1073(b).

Relying upon Bologna v. St. Mary’s Area School Board, 699 A.2d 831 (Pa. Commw. 1997), the board asserts that section 1073 of the code clearly empowered it to notify DeFazio of its employment intentions at a special meeting rather than a regular meeting. In Bologna, the school board held a special meeting at which it approved the reappointment of the district superintendent in accordance with section 1073(a) of the code. The plaintiff challenged the board action and argued that the reappointment of a superintendent “must take place at a regular meeting instead of, as here, at a special meeting of the board.” Id. at 834. In affirming the trial court’s rejection of that argument, the Bologna court concluded that a board may elect or reappoint a superintendent at a special meeting pursuant to 24 P.S. §10-1073(a), but if it fails to do so, it must then proceed under section 1073(b) by convening a regular meeting at least 150 days before the superintendent’s term expires to notify him whether he will be retained for another term. Id.

Bologna is distinguishable from the case sub judice in that the St. Mary’s Area School Board did “elect or approve” a superintendent at a special meeting as authorized by the clear language of 24 P.S. §10-1073(a). Instantly, the North Pocono School Board did not “elect or approve” a superintendent at its special meeting on December 17, 2002; rather, it merely notified DeFazio of its intention to consider other superintendent candidates, a board action which section 1073(b) indicates may be undertaken only at a regular meeting. Literal application of the words employed by the legislature in 24 P.S. §10-1073 suggests that the actions which were taken by the board at the special meeting on December 17, 2002, should have been conducted during a regular meeting prior to January 31, 2003. The failure of the board to follow the directive in section 1073(b) arguably entitles DeFazio to an automatic renewal of his contract by operation of law. In that event, a majority of the board may remove him from office only “for neglect of duty, incompetency, intemperance or immorality” following a due process hearing. Burns, 748 A.2d at 1267-68 n.13.

The board contends that it furnished DeFazio with the requisite 150 days notice of its intentions, albeit during a special meeting, and thereby achieved the notification goal of section 1073 of the code. The board alleges that the requirement in section 1073(b) that the statutory notice be provided at a regular meeting is merely directory such that the board was entitled to afford the requisite notice at a special meeting. However 24 P.S. § 10-1073(b) unequivocally states that only the agenda for a regular meeting “shall” include such action and that “[i]n the event that the board fails to take such action at a regular meeting,” the superintendent “shall continue in office for a further term of similar length.” The General Assembly’s use of the word “shall” rather than “may” usually connotes a mandatory interpretation instead of a discretionary one, Jennison Family Limited Partnership v. Montour School District, 802 A.2d 1257, 1262 (Pa. Commw. 2002), appeal denied, 572 Pa. 738, 815 A.2d 635 (2003), particularly where time is of the essence with regard to the action to be taken. School District of Philadelphia v. Independence Charter School, 774 A.2d 798, 802 (Pa. Commw. 2001). As such, it is not clear and free from doubt that the code’s directive as to what “shall” be done at a regular meeting is merely directory. Cf. Lake Naomi Club Inc. v. Monroe County Board of Assessment Appeals, 782 A.2d 1121, 1124 (Pa. Commw. 2001) (“By definition, ‘shall’ is mandatory and accordingly, there is no room to overlook the statute’s plain language to reach a different result.”), appeal denied, 568 Pa. 638, 793 A.2d 911 (2002).

Although the board acknowledges the above quoted terminology employed in section 1073(a) and (b) of the code, it asserted at the time of oral argument that the legislature could not have intended to prohibit a school board from furnishing the statutory notice at a special meeting as opposed to a regular meeting. However, the plain language of the statute indicates to the contrary, and if the words of a statute are clear and unambiguous, it is not our prerogative to speculate about supposed legislative intent. See Schering-Plough Healthcare Products Sales Corp. v. Commonwealth, 805 A.2d 1284, 1289 (Pa. Commw. 2002). It is a fundamental precept of statutory construction that “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Beemus v. Interstate National Dealer Services Inc., 2003 WL 2007917, *4, ¶14 (Pa. Super. 2003) (quoting 1 Pa. C.S. § 1921(b)). Hence, our charge is to interpret 24 PS. §10-1073 as written since “[i]t is not a court’s place to imbue the statute with a meaning other than that dictated by the plain and unambiguous language of the statute.” Commonwealth v. Tate, 572 Pa. 411, 413, 816 A.2d 1097, 1098 (2003). As stated above, the plain language of the code states that a school board may only “elect or approve” a superintendent at a special meeting and expressly reserves formal action involving the statutory notice for regular meetings.

Consequently, accepting as true DeFazio’s factual allegations and all inferences fairly deducible therefrom, the board has not established that the law says with certainty that DeFazio may not secure mandamus relief under 24 P.S. §10-1073(b). Thus, DeFazio’s mandamus action should not be dismissed at this preliminary stage and the board’s demurrer will therefore be denied. An appropriate order follows.

ORDER

And now, May 21, 2003, upon consideration of the “preliminary objections of defendants to plaintiff’s complaint,” the memoranda of law submitted by the parties and the oral argument of counsel on May 19, 2003, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) Defendant’s preliminary objections to plaintiff’s complaint are overruled and denied; and

(2) Within 20 days of the date of this order, the defendants shall file and serve a responsive pleading to the complaint.

      . In his brief, DeFazio asserts that “[t]he legal notice of the special meeting on December 17,2002, only advised that the special meeting was for the purpose of taking action on personnel matters and any other business that may come before the board” and did not furnish adequate “notification that the board was making important decisions concerning the position of Superintendent of Schools.” (See plaintiff’s brief, p. 9.) However, the complaint itself does not aver that the notice pertaining to the special meeting was invalid under section 709 of the Sunshine Act, 65 Pa.C.S. §709. Preliminary objections in the nature of a demurrer must be decided solely on the basis of the pleadings and the court may not consider averments or evidence outside of the complaint when disposing of legal issues presented by a demurrer. Morley v. Gory, 814 A.2d 762, 764 (Pa. Super. 2002); Feldman v. Lafayette Green Condominium Association, 806 A.2d 497, 500 (Pa. Commw. 2002). Therefore, we cannot consider DeFazio’s allegation that the legal notice of the special meeting was insufficient as that contention is dehors the complaint. We would note, parenthetically, that a legal challenge to the validity of an open meeting must be instituted within 30 days of the meeting pursuant to 65 Pa.C.S. §713.

      . The record does not reflect whether DeFazio was furnished with at least 150 days notice “in writing by certified mail” as per paragraph 12 of his contract. Although a mandamus action is an appropriate procedure to enforce the board’s statutory duties under the code, any claims predicated upon a provision in DeFazio’s employment agreement should be pursued via a breach of contract action. Burns, 748 A.2d at 1269.


author: PANELLA, J.,

text:
    Fonzone v. Bishop

      C.P. of Northampton County,
    no. C0048CV20000002435.

      Jo Ann Fonzone, pro se.

      Robertson B. Taylor, for defendant.
    February 14, 2003
   PANELLA, J.,

STATEMENT OF REASONS

I. Discussion

This matter is before the court on cross-motions for sanctions pursuant to Pennsylvania Rule of Civil Procedure 4019. The matter was remanded from our Superior Court for a hearing on the dual motions for sanctions. Our Superior Court vacated this court’s order of December 21, 2002, directing the entry of judgment in favor of defendant, Angeline Bishop and against plaintiff, Jo Ann Fonzone due to plaintiff’s lack of opportunity to oppose the entry of the judgment of December 21, 2001. In remanding the case to this court, the Superior Court stated “our adjudication does not preclude the dismissal of appellant’s claim or the imposition of any appropriate lesser penalty after hearing on remand.” The matter was scheduled for a hearing on the miscellaneous list of December 20, 2002. A hearing was held before the undersigned at that time. In attendance were Jo Ann Fonzone, pro se and Robertson Taylor, Esquire on behalf of Angeline Marie Bishop. The matter was placed on the argument list of January 21, 2003, for disposition.

The imposition of sanctions for failing to comply with a court’s discovery order is authorized by Pennsylvania Rule of Civil Procedure 4019(a). The sanctions permitted are enumerated in Pa.R.C.P. 4019(c) as follows:

“(c) The court, when acting under subdivision (a) of this rule, may make
“(1) an order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or any other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
“(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition;
“(3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience;
“(4) an order imposing punishment for contempt, except that a party may not be punished for contempt for a refusal to submit to a physical or mental examination under Rule 4010;
“(5) such order with regard to the failure to make discovery as is just.” See also, Pride Contracting Inc. v. Biehn Construction Inc., 381 Pa. Super. 155, 553 A.2d 82 (1989).

Although dismissal of the complaint with prejudice is not a sanction specifically provided for by the rule, the “catch-all” provision of Pa.R.C.P. 4019(c)(5) has been interpreted to include dismissal of the complaint with prejudice. Id.; see also, Feingold v. Philadelphia National Bank, 313 Pa. Super. 579, 583, 460 A.2d 339, 341 (1983). The decision whether to sanction a party for a discovery violation and the severity of such a sanction are matters vested in the sound discretion of this court. The Philadelphia Contributionship Insurance Company v. Shapiro, 798 A.2d 781 (Pa. Super. 2002); Pioneer Commercial Funding Corp. v. American Financial Mortgage Corp., 797 A.2d 269, 286 (Pa. Super. 2002). The specific sanction to be imposed under Pa.R.C.P. 4019(c) is also within our discretion. Pride Contracting, supra, 381 Pa. Super. at 159, 553 A.2d at 83.

Dismissal of the action is the most severe sanction, it should be imposed only in extreme circumstances. Ghaner v. Bindi, 779 A.2d 585 (Pa. Super. 2001). We are required to balance the equities carefully and dismiss only where the violation is willful and the opposing party has been prejudiced. Stewart v. Rossi, 452 Pa. Super. 120, 125, 681 A.2d 214, 217 (1996). To determine whether dismissal is appropriate as a discovery sanction under this standard, our Superior Court has mandated that the following factors be considered: (1) the nature and severity of the discovery violation; (2) the defaulting party’s willfulness or bad faith; (3) prejudice to the opposing party; (4) the ability to cure the prejudice; and (5) the importance of the precluded evidence in light of the failure to comply. Croydon Plastics Co. Inc. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997).

We have reviewed the record in the present case and it is clear that in the exercise of our judicial discretion, the appropriate sanction, dismissal of the action, is a “punishment which ‘fits the crime.’ ” Hein v. Hein, 717 A.2d 1053, 1056 (Pa. Super. 1998). The record clearly reflects that plaintiff, Jo Ann Fonzone, did not simply violate a single rule of procedure. Rather, she engaged in a pattern of conduct over a 21-month period, which included: ignoring discovery requests and interrogatories, missing deadlines, even where defendant agreed to allow extensions, and disobeying court orders to comply. These discovery violations, set forth in detail below, were of a nature and severity that warrant dismissal.

II. Findings of Fact

(1) Plaintiff, Jo Ann Fonzone, was allegedly injured in a motor vehicle accident which occurred on April 21, 1998, in Bethlehem, Pennsylvania. Plaintiff was rear-ended by a motor vehicle being operated by defendant, Angeline Bishop.

(2) Plaintiff commenced this suit by writ of summons on April 19, 2000, two days before the expiration of the statute of limitations. (N.T., 12/20/02 at 3.)

(3) On or about August 8, 2000, defendant, by and through her attorney, Michael Shay, served expert interrogatories and request for production of documents on plaintiff’s counsel Jim Rawlings, Esquire. (N.T., 12/20/ 02 at 3.)

(4) On August 18,2000, a rule to file a complaint was served on plaintiff. (N.T., 12/20/02 at 3.)

(5) Upon notice of a potential conflict due to plaintiff’s prior consultation with the law partner, Michael Shay, Esquire, withdrew his appearance on behalf of defendant. Robertson Taylor, Esquire, entered his appearance on behalf of defendant on or about November 14, 2000, and requested the filing of plaintiff’s complaint, pursuant to the August 18, 2000 rule which had been served on plaintiff.

(6) Counsel for plaintiff, Jim Rawlings, Esquire, requested an extension of time for plaintiff to file her complaint so that he could petition the court to withdraw as plaintiff’s counsel. (N.T., 12/20/02 at 3.)

(7) On or about February 1,2001, the Honorable Robert A. Freedberg R J., of this court entered an order granting Jim Rawlings, Esquire, permission to withdraw and ordering plaintiff to secure new counsel on or before February 21, 2001. (N.T., 12/20/02 at 3.)

(8) On or about February 20, 2001, plaintiff Jo Ann Fonzone, pro se, responded to the rule to file a complaint of August 18, 2000, by hand delivering her pro se complaint to defense counsel, Robertson Taylor at 12 East Market Street, Bethlehem, Pennsylvania. (N.T., 12/20/ 02 at 3.)

(9) On February 28, 2001, defendant filed her answer and new matter to plaintiff’s complaint and served additional interrogatories and request for production of documents on plaintiff, Jo Ann Fonzone, by United States Mail, Postage Prepaid to 1887 Redwood Drive, Whitehall, Pennsylvania. (N.T., 12/20/02 at 4.)

(10) On March 28, 2001, plaintiff hand delivered a response to defendant’s February 28, 2001 discovery requests. To date, no response has been received to defendant’s August 8,2000 discovery requests sent by Michael Shay, Esquire. (N.T., 12/20/02 at 4.)

(11) Plaintiff’s responses to defendant’s discovery requests were unverified, incomplete and unresponsive in contravention of Pennsylvania Rules of Civil Procedure 4005 and 4009.1. (N.T., 12/20/02 at 4.)

(12) On April 13, 2001, Anthony Vellner, Esquire, entered his appearance on behalf of plaintiff, Jo Ann Fonzone. (N.T., 12/20/02 at 4.)

(13) On April 19, 2001, Attorney Vellner requested a continuance of a judicial status conference. (N.T., 12/ 20/02 at 4.)

(14) On May 1, 2001, after only 31 days representing plaintiff, Attorney Vellner filed a motion to withdraw as counsel for plaintiff. (N.T., 12/20/02 at 4.)

(15) On May 31, 2001, no action having been taken on Attorney Vellner’s motion to withdraw, Robertson Taylor, Esquire, filed defendant’s motion to compel plaintiff’s discovery requests on Attorney Vellner. (N.T., 12/20/02 at 4.)

(16) On May 31, 2001, Attorney Vellner forwarded via certified mail, defendant’s motion to compel plaintiff’s response to discovery to plaintiff, Jo Ann Fonzone. (N.T., 12/20/02 at 4.)

(17) On June 4, 2001, by order of court signed by the Honorable F.P. Kimberly McFadden of this court, Attorney Vellner was granted leave of court to withdraw as counsel and plaintiff was granted 30 days to notify this court and defense counsel of acquiring new counsel. (N.T., 12/20/02 at 4-5.)

(18) On June 5, 2001, defendant’s motion to compel discovery was granted. By order of court signed by the Honorable Alfred T. Williams, plaintiff was directed to providefull and complete verified answers to defendant’s discovery requests, specifically, answers to defendant’s first set of interrogatories nos. 4A, 9A-D, 10A-D, 11, 12, 13, 16, 18, 19, 21-27, 38, 39-44; answers to expert interrogatories; and responses to defendant’s request for production of documents within 10 days, June 15,2001. (N.T., 12/20/02 at 5.)

(19) On June 21,2001, defendant sent a letter to plaintiff, certified mail, return receipt requested, along with copies of requests for production of documents, Judge William’s order of June 5, 2001, and a motion for sanctions. Defendant’s counsel notified plaintiff that he would file the enclosed motion for sanctions on June 28, 2001, absent full and complete discovery as per the June 5, 2001 order of court. (N.T., 12/20/02 at 5.)

(20) The return receipt for the certified mail was signed by Jo Ann Fonzone on June 28, 2001. (N.T., 12/20/02 at 6.) Plaintiff testified that it was her signature on the return receipt card. (N.T., 12/20/02 at 6.)

(21) On June 28,2001, upon motion of defendant, the action was dismissed, with prejudice, by the Honorable Isaac Garb, visiting senior judge, pursuant to defendant’s motion for sanctions. (N.T., 12/20/02 at 7.)

(22) On July 5, 2001, the Honorable Alfred T. Williams vacated Judge Garb’s order of June 28, 2001, dismissing the action. The court found credibility in plaintiff’s claim that she never received notice of the June 5, 2001 order compelling her to provide full and complete answers. (N.T., 12/20/02 at 7.)

(23) On July 5, 2001, Judge Williams issued a new order compelling plaintiff to comply with the June 5, 2001 order and respond to defendant’s interrogatories and discovery requests within 10 days, July 15, 2001. (N.T., 12/20/02 at 7.)

(24) On July 7, 2001, plaintiff hand delivered a second set of answers to interrogatories and requests for production of documents to defense counsel’s office. Plaintiff submitted the same answers to the same interrogatories that Judge Williams had scrutinized and ordered plaintiff to verify and provide full and complete responses to in his order of June 5, 2001. Plaintiff was already under an order of this court compelling her to provide full, complete, verified and responsive answers to interrogatories nos. 4A, 9A-D, 10A-D, 11,12,13,16, 18, 19, 21-27, 38, 39-44; answers to expert interrogatories; and responses to defendant’s request for production of documents. However, plaintiff chose to submit the same responses she had previously submitted. The responses were the same ones which provoked the initial motion to compel. (N.T. 12/20/02 at 7.)

(25) Defendant subsequently filed another motion for sanctions on December 7, 2001, for plaintiff’s failure to comply with Judge Williams’ order dated June 5, 2001. Plaintiff failed to supplement her responses to those interrogatories and requests for production of documents. Plaintiff contends that she hand-delivered supplement discovery responses to counsel for defendant on July 6, 2001. Accompanied with the discovery responses was approximately 350 voluminous documents. (N.T., 12/20/ 02 at 7.)

(26) On that same date, December 7, 2001, plaintiff filed a cross-motion for sanctions, alleging that it was defense counsel who was abusing the discovery rules and that defendant’s motion for sanctions was filed in bad faith and for purposes of harassment and delay.

(27) On December 7, 2001, defendant’s motion for sanctions was presented to the Honorable James C. Hogan of this court. Judge Hogan’s order required compliance with the order of June 5, 2001 within 10 days. Judge Hogan provided that upon failing to comply, the matter was to be dismissed pursuant to Pa.R.C.P. 4019(c)(2). The order was to be self-executing. (N.T., 12/20/02 at 7.) Plaintiff was present at this hearing.

(28) Defense counsel, on December 21, 2001, moved for dismissal pursuant to the December 7, 2001 order anticipating dismissal of the action. Plaintiff, pro se, did not appear at the hearing before the undersigned and judgment was entered against plaintiff, Jo Ann Fonzone for her noncompliance.

(29) On January 18, 2002, plaintiff, Jo Ann Fonzone, by and through her new counsel, Joseph R. Viola, Esquire, filed a notice of appeal to the Superior Court. Plaintiff appealed the order dated December 21, 2001 entering judgment in favor of defendant, Angeline Marie Bishop, and against the plaintiff, Jo Ann Fonzone.

(30) In her appeal, plaintiff complained that she was not provided with a copy of the proposed order which was to be presented to the court on December 21, 2001, in violation of Northampton County Rule N206 which requires three days notice. Defense counsel contended he had complied with this notice requirement by the dispatch of certified mail on December 18, 2001. Plaintiff stated that she did not learn of the notice until she went to the post office on December 31, 2001, 10 days after the hearing. The Superior Court stated that “we are constrained to conclude that appellant did not receive proper notice of the hearing on December 21, 2001.”

(31) The Superior Court filed its memorandum opinion on August 12, 2002, vacating the judgment entered on December 21, 2001, and remanded the case to this court for further proceedings.

(32) In remanding the case to this court, our Superior Court noted that “it is clear from the record that appellant has been a delinquent litigator.” There is a “long history of delinquency and uncertainty of counsel, in plaintiff’s pursuit of her claim.”

(33) Upon remand to this court, Joseph R. Viola, Esquire filed a petition to withdraw his appearance on behalf of plaintiff on October 11,2002. In his petition, Attorney Viola sought permission to withdraw based upon a “rambling and abusive two-page letter” he received from plaintiff on September 24,2002. In her letter, plaintiff expressed her apparent dissatisfaction with his “performance” at the scheduling conference of September 20, 2002, before the undersigned, and accused Attorney Viola of a “conflict of interest” created by his purported friendship with counsel for Ms. Bishop, Robertson Taylor, Esquire. In fact, Attorney Viola had never met or personally communicated with Mr. Taylor prior to the conference. This was the third time that plaintiff had made unwarranted and unsupportable accusations against her attorney.

(34) On December 6, 2002, the undersigned granted Attorney Viola’s petition to withdraw his appearance on behalf of plaintiff. Plaintiff did not object to the issuance of this order of court.

III. Conclusion

In conclusion, to this date, plaintiff has failed to comply with Judge Williams’ order of June 5,2001, and Judge Hogan’s order of December 7, 2001. Plaintiff, Jo Ann Fonzone, contends that she substantially complied with the orders by producing voluminous records to defense counsel. However, plaintiff’s responses to interrogatories nos. 4 A, 9A-D, 10A-D, 11,12,13,16,18,19,21-27, 38, 39-44; answers to expert interrogatories; and responses to defendant’s request for production of documents still remain unresponsive, unverified and incomplete. Defendant has been severely disadvantaged in this litigation because she cannot attempt to bring this matter to a resolution without the cooperation and information requested of plaintiff. Plaintiff’s failure to respond has been unjustified and her willful noncompliance has caused additional costs to defendant. Most importantly, defendant has been severely prejudiced in preparing her defense by plaintiff’s noncompliance. It is for these reasons, that we impose the most “severe sanction” on plaintiff, dismissing her lawsuit. We have balanced the equities, and conclude that plaintiff’s violation of the discovery rules is willful and defendant has been prejudiced. We find no merit to plaintiff’s motions for sanctions because all of the action taken by the defense has been solely to obtain relevant, discoverable information.

ORDER

And now, February 14, 2003, upon consideration of the cross-motions of defendant, Angeline Marie Bishop and plaintiff, Jo Ann Fonzone, for sanctions pursuant to Pa.R.C.R 4019, it is hereby ordered and decreed that plaintiff’s motion is denied and defendant’s motion for sanctions is granted. The above-captioned civil action is dismissed, with prejudice, for the reasons set forth herein.

      . A copy of the letter was attached to the petition to withdraw as exhibit D.

      . Plaintiff’s two attorneys prior to Attorney Viola had asked for permission to withdraw because of her behavior.

      . We note that at the hearing on December 20, 2002, Robertson Taylor, counsel for the defendant, Angeline Bishop read into evidence all of the interrogatories and requests for production of documents submitted to plaintiff and her responses thereto. The record reflects that her responses were unverified, unresponsive to the questions asked and wholly incomplete.