author: ALEJANDRO, J,

text:
    Norman v. Hospital of the Univ. of Pa.

      Pro Se, for plaintiff.

      Samantha Conway and James Young for defendant.
    January 24, 2013
   ALEJANDRO, J,

INTRODUCTION

This medical malpractice action was dismissed on procedural grounds. The following narrative is a brief summary of the salient procedural histoiy obtained from the official records of the lower and appellate court (dockets):

On November 12, 2010, Nellie M. Norman (pro se plaintiff) filed a writ of summons against the Hospital of the University of Pennsylvania (defendant HUP), Jennifer Tobey, M.D., and Brian Czemiecki, M.D. (collectively, defendants). On April 15,2011, plaintiff filed a complaint against defendants (without certificates of merit) claiming a breach of the standard of care in failing to properly locate and mark cancerous masses prior to her breast surgeiy. In her complaint, plaintiff asserts counts of medical negligence as well as “ordinary negligence” arising from her November 14, 2008, admission and surgery. Plaintiff describes the ordinary negligence as defendants’ failure to remove all the cancerous cells during the first surgery. Specifically, in her complaint, plaintiff averred that a cytology report revealed the presence of a two-centimeter adenocarcinoma in her left breast; and that in a preoperative procedure, defendant Tobey failed to properly “wire-mark” the location of the two masses that were to be excised. Plaintiff further averred that defendant Czemiecki performed the surgery on November 14, 2008, at defendant HUP and did not excise the cancerous auxiliary lymph node (adenocarcinoma). Instead, plaintiff contends that he removed a “clump” of normal, noncancerous left breast lymph node tissue. As a result, on January 15,2009, plaintiff underwent a second surgical procedure, performed by defendant Czemiecki, to remove the remaining cancerous tissue in her left breast.

On June 8, 2011, plaintiff filed a motion to extend the time to file certificates of merit., defendants did not oppose the motion and by order dated July 7, 2011, the honorable Allan L. Tereshko granted plaintiff’s motion. Accordingly, the certificates of merit became due by August 15, 2011.

On August 17,2011, defendants filed notice of intent to enter judgment of non pros for failure to file certificates of merit in support of plaintiff’s allegations.

On September 7,2011, plaintiff filed a second motion to extend time to file certificates of merit. In their response filed on September 26, 2011, defendants opposed the motion on the basis of untimeliness and lack of merit.

In the interim, on September 23, 2011, plaintiff filed a certificate of merit against each defendant essentially asserting that expert witnesses were not necessaiy since her claims were of “ordinary negligence” only.

On September 29, 2011, plaintiff filed her first appeal to the Superior Court challenging an order issued by Judge Tereshko dated September 20, 2011, which denied a discovery motion to strike defendants’ objection to disclose certain requested documents. This appeal was subsequently quashed on February 3, 2012, by the appellate court at 2774 and 2795 EDA 2011.

By order dated September 30, 2011, Judge Tereshko denied plaintiff’s second motion to extend time to file the certificates of merit.

This matter was marked deferred from October 27, 2011, until May 25,2012, pending plaintiff’s appeal. Once the appeal was quashed, the matter was returned to active status.

On June 6,2012, a revised case management order was issued designating deadlines for significant events. On that same date, defendants filed a motion to strike plaintiff’s certificates of merit. Said motion was granted by this motion judge by order dated July 2, 2012.

On July 11, 2012, defendants Tobey and Czemiecki filed their praecipe for entry of non pros based upon plaintiff’s failure to file certificates of merit against them within the time period required by Pa. R.C.P. 1042.3.

On July 12, 2012, defendant HUP filed a motion to strike the certificate of merit plaintiff filed against it.

On July 13, 2012, plaintiff filed another certificate of merit against defendant HUP only, and two appeals to the Superior Court challenging the July 2,2012 order; appeals identified as Superior Court Docket Numbers 2039 and 2040 EDA 2012.

On July 21, 2012, plaintiff filed a motion for reconsideration of the order of July 2, 2011, which struck the certificates of merit. The motion to reconsider was denied on July 31, 2012.

On July 23, 2012, plaintiff, relying on Pa. R.C.P. 1042.3(a)(3), filed a petition to open, vacate, or strike defendants’ entry of judgment of non pros arguing again that the averments in her medical malpractice complaint were of “ordinary negligence” and did not necessitate expert testimony. Plaintiff’s petition was denied by order dated August 17, 2012.

In the interim, by order dated August 9, 2012, the undersigned motion judge granted defendant HUP’s motion to strike the certificate of merit plaintiff filed on July 2, 2012, against it, and entered an order of judgment of non pros as to all claims against defendant HUP.

On August 23,2012, plaintiff filed another appeal to the Superior Court challenging the order of August 9, 2012; appeal identified as 2569 EDA 2012.

On September 23, 2012, plaintiff filed another appeal challenging the order of August 17,2012; appeal identified as 2819 EDA 2012.

By order of the Superior Court dated September 17, 2012, plaintiff’s appeal designated as 2040 EDA 2012 was dismissed for failure to comply with Pennsylvania Rule of Appellate Procedure (Pa. R.A.P.) 3517, requiring the filing of a docketing statement. Subsequently, appeals identified at 2039 and 2569 EDA 2012 were dismissed by per curiam decision; to wit:

These appeals have been taken from the July 2, 2012 order granting the defendants’ motion to strike the plaintiff’s certificates of merit and the August 9, 2012 order granting the motion of the University of Pennsylvania to strike certificate of merit and entering a judgment of non pros. See Pa.R.A.P. 3051(a) (relief from judgment of non pros shall be sought by petition; see also Sahutsky v. H.H. Knoebel & Sons, 566 Pa. 593, 782 A.2d 996 (2001) (failure to file petition to open non pros operates as waiver of any claims of error concerning the judgment); Madrid v. Alpine Mountain Corp., 24 A.3d 380 (Pa. Super. 2001) (any appeal related to judgment of non pros lies not from judgment itself, but from denial of petition to open or strike; failure to file timely or rule-compliant petition to open or strike operates as waiver of any right to address issues concerning the underlying judgment of non pros); Krell v. Silver, 817 A.2d 1097 (Pa. Super. 2003) (failure to file petition to open/strike judgment of non pros resulted in waiver of all claims on appeal).
Accordingly, the appeals at Nos. 2039 and 2569 EDA 2012, are hereby dismissed.

ISSUES

In response to an order issued in accordance with Pa. R.A.P. 1925(b), plaintiff on October 19, 2012, filed off record and served unto this motion judge a statement of errors complained of on appeal. Her complete statement of errors was scanned and herein inserted:

(1) The Court of Common Pleas erroneously misapplied Pa.R.C.P. 1042.3 (a) & (d), as well as 1042.7(a) (2) (See note) when it granted defendant’s motion to strike petitioner’s certificates of merit, thereby abusing its discretion, inasmuch as petitioner’s certificates of merit were filed prior to defendant’s filing any praecipe to enter judgement of non pros in favor of defendant-Hospital of University of Pennsylvania, and prior to the Court’s August 9, 2012 order granting defendant’s motion to strike petitioner’s July 1, 2012 certificate of merit and prior to the Court’s August 9, 2012 order granting defendant-hospital’s judgment of non pros as to “all claims”. Said order is inconsistent with Pa.R.C.P. 1042.3.1042.6 and 1042.7.
(2) The Court of Common Pleas erred in issuing its August 9, 2012 order, granting defendant’s motion to strike petitioner’s certificates of merit, since the language set forth in petitioner’s certificates of merit as to the obvious ordinary negligence alleged in averment nos. 2, 3. 4. and counts two, four, six and seven of petitioner’s complaint-civil action-negligence as against defendant-hospital of University of Pennsylvania and petitioner’s July 13, 2012 certificate of merit as to professional liability and medical negligence meet the requirements of the provisions of 1042.3 and Rule 126 (as it relates to the doctrine of substantial compliance). Moreover, said certificates are in accordance with the court’s ruling in Kennedy v. Butler, 901 A.2d 1042 (Pa. Super. 2006) and Worner v. Hilliker,
(3) The court erred in granting defendants’ motion to strike petitioner’s certificates by ruling inconsistently with existing Pennsylvania legal authority, since, in accordance with the court’s ruling in Grossman v. Barke, 2005 Pa. Super. 45; 888 A.2d 561; 2005 Pa.Super. Lexi 100 (2005), Rostock v. Anzalone, 2006 Pa.Super. 191; 904 A.2d 943 and Mitzelfelt v. Karmin, 526 Pa. 54, 62„ 584 A.2d 888, 891 (1990) and pursuant to Pa.R.C.P. 1020. a licensed professional’s conduct can constitute obvious ordinary negligence (e.g., res ipsa loquitur, vicarious liability in handling medical reports, etc.), where such negligent conduct is sufficiently averred as such, based upon the language set forth in both petitioner’s complaint and certificates, and where the language set forth in both petitioner’s certificates, as well as petitioner’s complaint, clearly meet the requirements of said rules and existing case law.
589 Pa. 256, 908 A.2d 269 (2206), thereby rendering said order inconsistent with said Pennsylvania legal authorities, and therefore, constituting an abuse of discretion, based on the court’s ruling in Thomas Jefferson University.
(4) The court erred, and abused its discretion when it ruled inconsistently with court’s rulings in Grossman v. Barke, 2005 Pa. Super. 45; 888 A.2d 561; 2005 Pa.Super. LEXIS 100 (2005); Gondek v. Bio-Medical, 2007 Pa. Super. 57; 919 A.2d 283 (2007); Rostock v. Anzalone, 2006 Pa.Super. 191; 904 A.2d 943; Hightower-Warren v. Silk, M.D., 548 Pa. 459,453 n.1(1997); Jones v. Harrisburg Polyclinic Hosp., 496 Pa. 465, 437 A.2d 1134 (1981); Smith v. Friends Hospital, 2007 Pa. Super. 188; 928 A.2d 1072 (2007) and Mitzelfelt v. Karmin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990) and failed to rule consistent with Pa.R.C.P. 1020 and 1042.3, by granting defendant’s motion to strike petitioner’s certificates of merit, since in accordance with the aforesaid legal authorities, said certificates may he filed for claims of ordinary negligence liability with regard to the obvious ordinary negligence and respondiat superior and vicarious liability averments nos. 2, 3., and 4. and counts two, four, six and seven of petitioner’s complaint, while other of petitioner’s certificates of merit are filed for the claims of professional negligence liability, with regard to the professional negligence averments of petitioner’s complaint, because defendants had been adequately placed on notice of the nature of each of the claims, and the nature of the case which must be defended.
(5) The court erred and abused its discretion when it granted defendants’ motion to strike petitioner’s certificates of merit, as to the obvious ordinary negligent conduct of defendants and/or their support staff, since said certificates are valid, were timely filed, and were filed prior to defendants’ August 9, 2012 entry of judgment of non pros.
(6) The court erred, and abused its discretion, in granting its order in favor of defendants motion to strike petitioner’s valid certificates of merit, as to obvious ordinary negligence, as against defendants, where, in accordance with Moore v. Luchsinger, 862 A.2d 631 (Pa. Super. 2004), and as required by Rule 1042.7 (a) (2) (See note), said certificates were duly and properly filed and docketed by petitioner prior to entry of defendant’s judgment of non pros.
(7) The court erred and abused its discretion when it entered a judgement of non pros against petitioner and in favor of defendants after petitioner had timely filed her certificates of merit since the entry of said judgment is inconsistent with rules 1042.7(a) (2) and the court’s ruling in Moore v. Luchsinger, 862 A.2d 631 (Pa. Super. 2004) and Whitsel v. Commonwealth, department of transportation, PICS case no. 05-1909 (C.P. Dauphin Oct 26, 2005) (Kleinfelter J.).
(8) The court erred in determining that defendants could not be held liable for that conduct which constitutes obvious ordinary negligence under averment nos. 2., 3., 4., and counts two, four, six and seven of petitioner’s complaint, as to certain of petitioner’s claims (e.g., res ipsa loquitur, vicarious liability claims for an employee’s negligent failure to identify the location of a hazardous and harmful item which is expected to be removed), while also being held liable for their negligent conduct in other claims (e.g., corporate negligence claims for failure to adequately train and/or supervise their subordinate employees or staff members), which constitutes professional or medical negligence under other counts of petitioner’s complaint.
(9) The court erred and abused its discretion when it granted defendants’ motion to strike petitioner’s certificates of merit as to defendants obvious ordinary negligence, and ruled inconsistently with existing Pennsylvania legal authority, since petitioner’s certificates meet all legal requirements and were duly filed and docketed prior to defendant’s entry of judgment of non pros, in compliance with 1042.3.1042.6 and 1042.7(a)(2) (see note), and in accordance with Moore v. Luchsinger, 862 A.2d 631 (Pa. Super. 2004) and Whrisel v. Commonwealth, Department of Transportation, PICS Case No. 05-1909 (C.P. Dauphin Oct. 26,2005) (Kleinfelter J.).
(10) The lower court erred and abused its discretion when it granted defendants an order striking petitioner’s timely filed valid certificates of merit, thereby enabling defendants to wrongfully secure a judgment of non pros by circumventing the requirements of Rules 1042.3, 1042.7(a) (2) (See note), Grossman, as well as by undermining the intent of the well-established purpose of such requirements, (as opined in Newell v. Ruiz, 286 F.3d 166 (2002), where the court made it quite clear that rules regarding certificates of merit are simply to weed out frivolous claims and are only intended to “bar... frivolous claims”; not to allow defendants to engage in “gamesmanship” to achieve technical defeat of viable, valid and meritorious claims. See generally, Newell v. Ruiz, 286 F.3d 166 (2002)), since said order has clearly been utilized by defendants to effectively abort petitioner’s viable, valid and meritorious claims, and to deny petitioner’s Fifth and Fourteenth Amendment constitutional substantive and procedural due process rights to present and prosecute her viable, meritorious injury claims before a jury, at trial.
* (11) The court erred and ruled inconsistently with existing Pennsylvania legal authority in determining that there was a “delay” in the filing of petitioner’s certificates of merit, since, if there was a delay, said delay was caused by defendants’ failing to provide certain information needed to obtain a complete medical expert opinion, as prohibited by the court’s ruling in Newell v. Ruiz, 286 F.3d 166 (2002)).
(12) The court erred and ruled inconsistently with Rule 1042.6, since the court granted defendant-hospital a judgment of non pros where said defendant had failed to file a notice to intent to enter judgment of non pros, as required pursuant to Rule 1042.6, as to petitioner’s ordinary negligence claims, thereby failing to place petitioner on notice, when defendant filed “notice of intent to enter judgment of non pros for professional liability claims”.
(13) The court erred and ruled inconsistently with existing Pennsylvania authority when it granted defendants’ motion to strike petitioner’s certificates of merit, where said certificates were in substantial compliance. Defendants never pleaded a right to strike said certificates, and there is no supporting Pennsylvania legal authority, or precedent, which may allow said certificates, to be so stricken.

In light of the appellate court’s order dismissing appeals identified as 2039 and 2569 EDA 2012, this motion judge opines that the appellate issues to be addressed in this opinion are plaintiffs statement of error numbers 8, 10, and 12; to wit: plaintiff’s contentions that certificates of merits were not necessary, that res ipsa loquitor applies, and that this case is strictly one of ordinary negligence.

LAW AND DISCUSSION

Although plaintiff is acting pro se, she must still adhere to the established rules of court. Case law has determined that a pro se litigant is not entitled to any particular advantage because (s)he lacks legal training, Cole v. Czegan, 722 A.2d 686, 687 (Pa. Super. 1998) (quoting O’Neill v. Checker Motors Corp., 567 A.2d 680, 682 (Pa. Super. 1989); nor is said litigant absolved from complying with procedural rules. Jones v. Rudenstein, 585 A.2d 520, 522 (Pa. Super. 1991), appeal denied, 529 Pa. 634, 600 A.2d 954 (1991). Any layperson choosing to represent him/herself in a legal proceeding must, to some reasonable extent, assume the risk that the lack of expertise and legal training will prove his/her undoing. Vann v. Commonwealth Unemployment Compensation Bd. of Review, 508 Pa. 139, 148, 494 A.2d 1081, 1086 (1985) (quoting Groch v. Unemployment Compensation Bd of Review, 472 A.2d 286, 288 (Pa. Cmwlth. 1984)).

Certificates of merit

Pa. R.C.P. 1042.3(a) essentially provides that in any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit, signed by the attorney or the party, that either an appropriate licensed professional has supplied a statement that there exists a reasonable probability that the care ... that is the subject of the complaint, fell outside the acceptable professional standard and that such conduct was a cause in bringing about the harm, or that expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. See also, Warner v. Univ. of Pa. Health Sys., 874 A.2d 644, 648 (Pa. Super. 2005). Clearly, this rule applies to medical malpractice actions.

A separate certificate must be filed as to each licensed professional named in the complaint. Pa. R.C.P. 1042.3(b). If a plaintiff fails to file either a certificate of merit within the required time or a request for an extension, a defendant can file a written notice of intention to file a praecipe for judgment of non pros and serve said notice unto the plaintiff. Pa. R.C.P. 1042.6. The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to timely file a certificate of merit. Pa, R.C.P. 1042.7; Warner, supra, 874 A.2d at 648 (Pa. Super. 2005) (citing Hoover, supra, 862 A.2d at 593 (Pa. Super. 2004)).

Here, plaintiff certified that:

[T]he expert testimony of an appropriate licensed professional is unnecessary from prosecution of the ordinary negligence claim(s) set forth in plaintiff’s complaint as, against this defendant, and all the related underlying claims, pursuant to Pa. R.C.P. 1042.3, in as much as, said claims sound in ordinary negligence and defendant’s ordinary negligence is obvious.

Plaintiff insists that defendants’ errors are obvious to any lay person in that no one at the hospital identified the location of the tissue to be removed in any of the radiology reports written or timely marked the skin or tissue before surgery, resulting in some cancerous tissue not being excised during the first surgery. Plaintiff further argues that:

[Ljike anything else harmful — the location of which is not specified — which is expected to be removed by a different individual in the future, it is quite obvious and foreseeable by any reasonable person, that any reasonable individual that is uninformed of its location, would probably not be able to successful [sic] remove any unidentified item (that is, an item the location of which, is unknown). As such, plaintiffs claims as against defendants, aver medical negligence, corporate negligence, vicarious liability, as well as — in the case scenario just described — ordinary negligence and res ipsa loquitur, with regard to each of these claims, since such error is so obvious, plain and simple for any lay person to understand — with or without medical knowledge, or any expert medical testimony or opinion.

To determine plaintiff’s theories of liability, this motion judge examined the averments made in the complaint. Ditch v. Waynesboro Hospital, 917 A.2d 317, 321 (Pa. Super. 2007), aff’d, 609 Pa. 464, 17 A.3d 310 (2011). Claims of medical malpractice consist of allegation(s) of either a negligent or unskillful performance by a physician of the duties which are devolved and incumbent upon the physician on account of the relationship with the patient or a want of proper care and skill in the performance of a professional act. Vazquez v. CHS Prof’l Practice, PC., 39 A.3d 395, 397 (Pa. Super. 2012) (citing Mutual Ben. Ins. Co. v. Haver, 555 Pa. 534, 725 A.2d 743 (1999); Hodgson v. Bigelow, 335 Pa. 497, 7 A.2d 338, 342 (Pa. 1939)). Because medical malpractice is a form of negligence, to state a prima facie cause of action, a plaintiff must demonstrate the elements of negligence: “a duty owed by the physician to the plaintiff/patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, and that the damages suffered were a direct result of harm.” Id. (citing Hightower-Warren v. Silk, 548 Pa. 459, 463, 698 A.2d 52, 54 (1997)). With all but the most self-evident medical malpractice actions, there is also the added requirement that the plaintiff must provide a medical expert who will testify as to the elements of duty, breach, and causation. Id. (citing Hightower- Warren, supra; Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 199, 907 A.2d 1061, 1070-1071 (2006)).

There is no doubt that plaintiff’s complaint raises claims of medical malpractice and breach of the standard of professional care against defendants. For example, in her complaint, plaintiff avers that:

29. At no time did Dr. Jennifer Tobey, Dr. Czemiecki, or defendant-hospital, or its employees, agents, servants, administrators, [sic] representatives or other staff members ever indicate or identify, in any of its reports, medical, MRI, diagnostic, cytology, radiology and/or other medical records, where said cancerous lymph node tissue was located, so as to enable said scheduled surgical excision, without negligent error in removing, or failing to remove, said cancerous tissue.
30. The diagnostic, radiologic, report-preparing, needle localization and subsequent surgical errors, which caused serious permanent injury to plaintiff, were sentinel events under the MCARE Act, that occurred while plaintiff was under the exclusive control of defendants, for which plaintiff also claims liability against defendants under the doctrine of res ipsa loquitur.
31. Said diagnostic, radiologic report-preparing, needle localization and resulting surgical error of omitting the location of plaintiffs left lymph node adenocarcinoma, which caused serious permanent injury to plaintiff was a sentinel event under the MCARE Act, that occurred while plaintiff was under the exclusive control of defendants, and for which plaintiff also claims any and all other liability against defendants.
32. The failure to timely identify the location of said cancerous lymph node tissue to be excised in said medical reports and/or needle localization, failure to specify and/or identify the same in plaintiff’s medical records and/or related office notes, and failure to identify and to remove said cancerous tissue during plaintiff’s initial November 14, 2008 operation, were events which were under the exclusive control of defendants, for which plaintiff also claims liability, jointly and severally, under the doctrine and theory of simple and ordinary negligence.

Although the breach of care claimed may be obvious to plaintiff, this motion judge opines that the allegations against defendants are not the “self-evident” type of medical malpractice actions a lay person can completely understand. For instance, the procedure of “wire-marking”, “fine needle biopsy aspiration”, “needle localization L breast partial mastectomy and axillary dissection” are not terms and/or medical procedures that a lay person would readily comprehend. Without an expert to explain the technicalities of the procedures-the wire marking or the actual aspiration, the risks involved, the alternatives, and the expectations of the surgery-plaintiff cannot prove her case.

Doctrine of “res ipsa loquitur”

Notwithstanding, plaintiff contends that the doctrine of res ipsa loquitur, which allows the fact-finder to infer from the circumstances surrounding the injury that the harm suffered was caused by the negligence of defendants or agent(s), applies in this case because:

(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to plaintiff.

See Restatement (Second) of Torts § 328D.

It is the function of the court to determine whether such an inference may reasonably be drawn by the jury, or whether it must necessarily be drawn. Vazquez, supra, 39 A.3d at 398 (citing Restatement (Second) of Torts § 328D(2)). See Bearfield v. Hauch, 595 A.2d 1320 (Pa. Super. 1991). However, the application of res ipsa loquitur must be “carefully limited” as the claims of negligence demands a complete understanding of the procedure the doctor is performing and the responsibilities upon him at the moment of injury. Toogood v. Rogal, 573 Pa. 245, 261, 824 A.2d 1140, 1149(2003).

Based on the facts articulated in plaintiff’s complaint, this motion judge opines that the doctrine of res ipsa loquitur is inapplicable in this case. While a negligence incident, such as the case of an unsupervised quadriplegic who falls from an examination table is obvious and warrants the imposition of res ipsa loquitur, (Quinby, supra), the allegations here are quite different. This motion judge opines that plaintiff’s allegations are more akin to the facts of Toogood, supra. There, plaintiff sustained a collapsed lung and was unable to breathe immediately following a cortisone injection for back pain. The Supreme Court held that expert medical testimony was required to assist the jury in evaluating the reasonableness of the physician’s decision to place an injection at a particular location. See Toogood, 824 A.2d at 1149. The same legal reasoning is applicable to the facts in this case since an issue herein involves the needle localization procedure and the alleged lack of proper markings. When a case, such as this matter, pertains to an action that occurred within the course of a professional relationship and raises questions of medical judgment beyond the realm of common knowledge and experience, the action is subject to the procedural and substantive requirements that governed medical malpractice actions. Grossman, supra, 868 A.2d at 570 (Pa. Super 2005). Thus, expert testimony is required.

Entry of judgment of non pros

Finally, as to plaintiff’s contention of error related to the entry of judgment of non pros, and the denial of her a petition to open and/or strike a judgment of non pros, it appears that these issues were dismissed by the Superior Court’s order of November 19, 2012. However, to briefly address this issue, appellate action is warranted:

When reviewing a petition to open and/or strike a judgment of non pros pursuant to Pa. R.C.P. 1042.6, our court “may reverse the decision of the trial court only if we find that the trial court abused its discretion in reaching its determination.” It is well-established that a motion to strike off a judgment of non pros challenges only defects appearing on the face of the record and that such a motion may not be granted if the record is self-sustaining.”

Short v. Karason, 920 A.2d 1285, 1287 (Pa. Super. 2007), appeal denied, 594 Pa. 705, 936 A.2d 41 (2007) (citing Ditch, supra (citations omitted)). That is, a denial of a petition to open and/or strike judgment of non pros is subject to the abuse of discretion standard and will not be reversed on appeal unless there is proof of manifest abuse. Hoover, supra, 862 A.2d at 593 (Pa. Super. 2004) (citing Sklar v. Harleysville Insurance Co., 526 Pa. 617, 619-620 587 A.2d 1386, 1387(1991)).

Plaintiff essentially argues that this motion judge erred when it granted defendants’ motion to strike plaintiff’s certificates of merit and entered a judgment of non pros, despite having timely filed certificates of merit; and when defendant HUP failed to file a notice of intent to enter judgment of non pros as to her ordinary negligence claims but instead filed a notice of intent to enter judgment of non pros for professional liability claims.

As previously stated, plaintiff filed an appeal on September 29, 2011, challenging Judge Tereshko’s order which denied her motion to strike defendants’ objections and another appeal on October 6, 2011 challenging the order denying her second motion to extend time to file a certificate of merit. Pending these appeals, this matter was placed on deferred status until shortly after the appellate court quashed the appeals. Subsequently, defendants filed a motion to strike plaintiff’s certificates of merit which was granted by order dated July 2, 2012.

On July 11, 2012, defendants Tobey and Czemiecki jointly filed a praecipe for entry of non pros based on plaintiff’s failure to file a certificate of merit against each defendant within the time period required by Pa. R.C.P. 1042.3. On the next day, defendant HUP filed a motion to strike plaintiff’s certificate of merit against it which was granted by order dated August 9, 2012;

Instead of filing a response, on July 13, 2012, plaintiff filed another certificate of merit against defendant HUP only, and an appeal to the Superior Court challenging the July 2, 2012, order, which struck the certificates of merit filed against all defendants. On July 23, 2012, plaintiff filed a petition to open, vacate, or strike defendants’ entry of judgment of non pros on the grounds that the averments in her medical malpractice complaint were of “ordinary negligence” which did not necessitate filing any certificate of merit, as set forth in Pa. R.C.P. 1042.3. Plaintiff’s petition was denied by order dated August 17, 2012, for the reasons stated.

Pa. R.C.P. 1042.6(b) allows the entry of a judgment of non pros as provided by Rule 1042.7(a) without notice if:

(1) the court has granted a motion to extend the time to file the certificate and the plaintiff has failed to file it within the extended time, or (2) the court has denied the motion to extend the time. Pa. R.C.P. 1042(b)(1). Here, plaintiff did not timely file the certificates of merit as to any defendant before the expiration of the extension granted nor did she do so before the September 30,2011, denial of her second motion to extend time to file certificates of merit. Thus, the entry of the judgment of non pros was proper pursuant to the procedural rules.

CONCLUSION

Based on the foregoing facts, statutory requirements, relevant case law and analysis, this motion judge is of the opinion that no error of law or abuse of discretion was committed in granting defendants’ motion to strike plaintiff’s certificates of merit and entering judgment non pros against plaintiff. As such, this motion judge respectfully requests that plaintiff’s appeals be dismissed.

      . Plaintiff filed two appeals identified on the Superior Court docket as 2039 EDA 2012 and 2040 EDA 2012. The appellate court records indicate that these appeals are related cases due to “similar issues.” The court of common pleas official record (docket) reveals that on July 13, 2012, plaintiff appealed an order dated July 2, 2012, and docketed on July 10,2012. On July 14,2012, a second notice of appeal from the same July 2, 2012 order was filed.

      . On April 15, 2011, a corrective entry was made on the docket which reads: “prothonotary corrective entry: please note that the docket entry of 3/28/11 of plaintiff’s complaint filed was entered and accepted in error the only documents attached to the PDF file were the cover sheet, and plaintiff’s wherefore clause there was no complaint attached.”

      . Plaintiff’s civil action complaint, ¶ 21.

      . Id.,\25.

        . Id., ¶¶ 27,28.

      . Id., ¶ 27.

      . The motion was filed under Control No. 11061217.

      . Pursuant to Pennsylvania Rule of Civil Procedure (Pa. R.C.P.) 1042.3, a plaintiff must file either with the complaint or within sixty (60) days after filing the complaint, a certificate of merit.

      . The motion was filed under Control No. 11090633.

      . The appeal was sua sponte quashed on February 3, 2012 at Superior Court Docket No. 2795 EDA 2011.

      . On July 9, 2012, the Supreme Court at 56 EM 2012 denied plaintiff’s petition for review.

      . The motion was filed under Control No. 12060918.

      . This order was docketed on July 10, 2012.

      . The motion was docketed under Control No. 12071467.

      . This motion was docketed under Control No. 12072769.

      . This motion was docketed under Control No. 12072872.

      . Per curiam, nos. 2039, 2569 EDA 2012, filed on November 19, 2012.

      . See memorandum of law in support of defendants, Hospital of the University of Pennsylvania, Jennifer Tobey, M.D., and Brian Czemiecki, M.D.’s motion to strike plaintiff’s certificates of merit, Exhibit B.

      . Memorandum of law in support of plaintiff’s response to defendants, Hospital of University of Pennsylvania, Jennifer Tobey, M.D. and Brian Czemiecki, M.D.’s motion to strike plaintiff’s certificates of merit, at unnumbered p.2.

      . Plaintiffs civil action complaint, ¶¶ 29-32 (emphasis in original).

      . Rule 1042.7 provides that
      (a) the prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that:

        (1) there is no pending motion for determination that the filing of a certificate is not required or no pending timely filed motion seeking to extend the time to file the certificate,
      (2) no certificate of merit has been filed,
      (3) except has provided by Rule 1042.6(b), the defendant has attached to the praecipe a certificate of service of the notice of intention to enter the judgment of non pros, and
      (4) except as provided by Rule 1042.6(b), the praecipe is filed no less than thirty days after the date of the filing of the notice of intention to enter the judgment of non pros.
      Pa. R.C.P. 1042.7(a).


source: Caselaw Access Project

author: WETTICK, J.,

license: Public Domain

text:
    Watson v. Prestige Delivery Sys., Inc.

      Margaret Fried and Evalynn Welling, for plaintiffs.

      A. Patricia Diulus-Myers, for defendant Prestige Delivery Systems, Inc.

      Stephen L. Korbel and Christopher M. Helms, for defendants NICA, Inc. and Thomas McGrath.
    February 7, 2013
   WETTICK, J.,

This is a class action brought by two truck drivers (Richard Watson and David Clary) who delivered packages to customers of Prestige Delivery Systems, Inc. (“Prestige”). Each driver performed his services pursuant to an agreement between Prestige and the driver titled Independent Contractor Operating Agreement (“Agreement”). See Plaintiffs’ fourth amended complaint, Ex. A. This Agreement refers to the driver as an independent contractor and not an employee of Prestige.

The Agreement provides that the contractor must be an affiliate of the National Independent Contractor Association, NICA, Inc. (“NICA”). The Agreement describes NICA as a primary provider of third-party administrative services to independent contractors, which manages and administers settlement, tax, and other related services for independent contractors who are affiliates of its organization. This agreement provides that payments to the truck driver for services rendered to Prestige will be made by NICA (Agreement, ¶6). It provides for NICA to make deductions-described in an Agreement between NICA and the driver-from compensation Prestige owes the driver for delivering packages to customers of Prestige.

The gravamen of Plaintiffs’ F ourth Amended Complaint is that defendants have misclassified plaintiffs and other similarly situated drivers as independent contractors rather than as Prestige’s employees, thereby depriving these drivers of the rights, privileges, and benefits owed to them as employees.

Prestige, NICA, and Thomas McGrath have filed preliminary objections to Plaintiffs’ Fourth Amended Complaint.

PRELIMINARY OBJECTIONS BASED ON FORUM SELECTION CLAUSE

The initial issue that I must address is whether plaintiffs ’ claims against Prestige must be brought in Ohio.

The Agreement

Prestige relies on ¶22 of the independent contractor operating agreement:

22. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties and supersedes all prior independent Contractor Operating Agreements and shall not be modified, altered, changed or amended in any respect unless in writing and signed by both parties. In the event any provision of this Agreement shall be held invalid or unenforceable for any reason whatsoever, the invalidity or unenforceability shall not affect any other provision of this Agreement, and the remaining provisions shall remain in full force and effect. This Agreement shall be deemed to have been written in accordance with the statutes and laws of the State of Ohio, and, in the event of any disagreement or litigation, the laws of this state shall apply and suit must be brought in this state. In addition, Contractor and Carrier agree that this Agreement is being entered into in the State of Ohio.

Pennsylvania Case Law

The law governing the enforceability of a forum selection clause is set forth in the recent opinion of the Pennsylvania Superior Court in Autochoice Unlimited, Inc. v. Avangard Auto Finance, Inc., 9 A.3d 1207, 1215 (Pa. Super. 2010). This opinion looked to a 1965 opinion of the Pennsylvania Supreme Court:

In Central Contracting Co. v. C.E. Youngdahl & Co.,418 Pa. 122, 209 A.2d 810, 816 (1965), our Supreme Court addressed the effect and enforceability of contractual forum selection clauses in Pennsylvania.
The modem and correct mle is that, while private parties may not by contract prevent a court from asserting its jurisdiction or change the rules of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation. Such an agreement is unreasonable only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair plaintiff’s ability to pursue his cause of action. Mere inconvenience or additional expense is not the test of unreasonableness since it may be assumed that the plaintiff received under the contract consideration for these things. If the agreed upon forum is available to plaintiff and said fomm can do substantial justice to the cause of action then plaintiff should be bound by his agreement. Moreover, the party seeking to obviate the agreement has the burden of proving its unreasonableness.

Id. at 816.

Autochoice also discussed more recent case law:

Recently, this court has clarified the circumstances under which such provisions would be deemed unenforceable.
In light of these controlling principles from Central Contracting and prevailing case law, a forum selection clause in a commercial contract between business entities is presumptively valid and will be deemed unenforceable only when: 1) the clause itself was induced by fraud or overreaching; 2) the forum selected in the clause is so unfair or inconvenient that a party, for all practical purposes, will be deprived of an opportunity to be heard; or 3) the clause is found to violate public policy.
Patriot Commercial, supra at 651. See also O’Hara v. First Liberty Insurance Corp., 984 A.2d 938 (Pa. Super.2009), appeal denied, 995 A.2d 354 (Pa.2010).

Id. (Footnote omitted).

Not a Bargained-for Clause

The Pennsylvania case law described above does not provide for Pennsylvania courts to enforce a forum selection clause buried in a take-it-or-leave-it form agreement drafted by the party seeking to enforce the clause.

In Central Contracting Co., 209 A.2d at 816, quoted at length by the Autochoice Court, the Court referred to the “modem and correct rule” that the fomm selection clause should be recognized “when the parties have freely agreed that the litigation shall be conducted in another fomm and where such agreement is not unreasonable at the time of litigation.”

A court, applying this criteria, should not enforce this fomm selection clause because plaintiffs did not freely agree for litigation to be conducted in Ohio. The fomm selection clause was buried in ¶22 of the Agreement under the unrelated heading, Entire Agreement, in all likelihood, the drivers were not aware of the fomm selection clause. Also, even if aware of the clause and what it means, the drivers would not believe that they had any choice over whether their Agreement with Prestige would ultimately include a forum selection clause.

This application of Central Contracting Co. is consistent with the language in Patriot Commercial, also quoted by the Autochoice Court, that the fomm selection clause is presumptively valid “in a commercial contract between business entities.” Autochoice, 9 A.3d at 1215 (quoting Patriot Commercial Leasing Co. v. Kremer Restaurant Enter, LLC., 915 A.2d 647, 651 (Pa. Super. 2006)).

Against Public Policy

Also, the Pennsylvania courts shall not enforce a forum selection clause that was unreasonable at the time of litigation or violated public policy (see Autochoice at pages 3-4 of this opinion, quoting Central Contracting and Patriot Commercial).

This lawsuit is based on allegations that defendants failed to comply with Pennsylvania laws protecting wage earners. These laws specifically state that their protections cannot be avoided. Wage Payment and Collection Law, 43 P.S. § 260.7 (no provision shall be contravened by a private agreement), and Pennsylvania Minimum Wage Act, 43 P.S. § 333.113 (agreement between employer and employee to work for less than minimum wage is no defense in an action for damages).

These anti-waiver provisions should be viewed as reaching any contractual provisions that interfere with enforcement of the legislation. Thus, the Pennsylvania courts shall not enforce any provisions in an agreement drafted by an employer that make it more difficult for workers to enforce their statutory rights. In this case, the legislative goal of securing prompt payment of wages is thwarted if a worker must sue in Ohio rather than commencing an action before the local Magisterial District Court.

In summary, the question ofwhether to enforce Prestige’s forum selection clause is for the Pennsylvania courts to decide. Federal law does not impose any restrictions on the Pennsylvania courts. There is no reason why the Pennsylvania courts would allow any party to select the courts of another state to decide claims of Pennsylvania workers based on Pennsylvania legislation enacted to protect these workers.

Outside Scope of Forum Selection Clause

Finally, in this case, plaintiffs’ recovery is not dependent upon the provisions of its agreement with Prestige. To the contrary, it is plaintiffs’ contention that regardless of what the agreement states, as a matter of public policy, plaintiffs are entitled to payments as provided for in the Wage Payment and Collection Law and the Minimum Wage Act. Consequently, this lawsuit does not involve any “disagreement or litigation” over the terms of the parties’ Agreement.

PRELIMINARY OBJECTIONS OF PRESTIGE AND NICA TO COUNT II-CLAIMS BASED ON THE PENNSYLVANIA WAGE PAYMENT AND COLLECTION LAW (43 P.S. §§ 260.1 etseq.)

The Wage Payment and Collection Law provides a statutory remedy to employees who have not received wages and other benefits that are otherwise due. 43 P.S. § 260.9a; see Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 574 (Pa. Super. 2006). Thus, plaintiffs must establish that they are employees, rather than independent contractors, in order to raise claims based on alleged violations of the Wage Payment and Collection Law.

The factual allegations in Plaintiffs’ Fourth Amended Complaint supporting plaintiffs’ contention that they are employees are very similar to Findings of Fact Nos. 1-15 made by the Unemployment Compensation Board of Review in its Decision and Order, No. B-469459-A (Oct. 20, 2009), in unemployment compensation proceedings initiated by David Clary. See Exhibit D to Plaintiffs’ Fourth Amended Complaint:

FINDINGS OF FACT:

1. The claimant was last employed as a delivery driver by the Prestige Delivery Systems from August 10, 2007, at a final rate of $50.00 a day. The claimant is currently still employed.
2. The claimant was required to complete preemployment screening as a condition of employment.
3. The employer did a background check and a driver’s license check.
4. The claimant was hired to deliver packages to clients of the employers.
5. The claimant was given specific instructions on what clients are to be serviced by the claimant and at what time packages must be picked up and delivered.
6. The claimant was required to wear the uniform of the company.
7. The claimant also had to provide a pager and, when customer requirements dictated, a two way radio and/ or cellular phone.
8. The claimant used his own personal vehicle to make the deliveries.
9. The claimant had an agreement with the employer to work as an independent contractor for the employer.
10. The employer has the right to assert control over and responsibility for the equipment used by the claimant to comply with federal and state regulations.
11. The contract also states that the claimant must conform with and meet the standards and approval of the employer’s customers.
12. The claimant had to wait to accept the position from the employer to make deliveries in accordance with the employer’s instructions.
13. The claimant had to call if he was running more than 10 minutes late.
14. The claimant was required to complete a manifest for the employer at the completion of his route.
15. The claimant could not contact the employer’s customers directly.

These allegations, if established, will support a finding that plaintiffs were employees.

Plaintiffs’ claims under the Wage Payment and Collection Law are based on deductions, described below, made from the money owed plaintiffs for their deliveries. Plaintiffs’ claims are based on allegations that both Prestige and NICA were involved in a scheme in which improper deductions were made from plaintiffs’ wages.

Under 43 P.S. § 260.3(a), an employer must pay all wages that are due less any “deductions...as authorized by regulation of the Department of Labor and Industry for the convenience of the employe....”

The relevant regulations promulgated pursuant to 43 P.S. § 260.3(a) read as follows:

The following deductions from wages are authorized for the convenience of employes in accordance with the provisions of section 3 of the Wage Payment and Collection Law (43 P.S. § 260.3).
(11) Deductions for purchases or replacements by the employe from the employer of goods, wares, merchandise, services, facilities, rent or similar items provided such deductions are authorized by the employe in writing or are authorized in a collective bargaining agreement.
(12) Deductions for purchases by the employe for his convenience of goods, wares, merchandise, services, facilities, rent or similar items from third parties not owned, affiliated or controlled directly or indirectly by the employer if the employe authorizes such deductions in writing.

34 Pa. Code §9.1.

NICA’S Argument

At pages 6-8 of the NICA Brief in Support of Preliminary Objections to the Fourth Amended Class Action Complaint, NICA raised the following argument in support of its preliminary objections seeking dismissal of Count II:

Despite Plaintiffs’ contention, and even if Plaintiffs were employees of NICA or McGrath, which is specifically denied, both Plaintiffs authorized in writing the deductions of which they now complain. Specifically, Watson authorized NICA to make the above-referenced deductions in Paragraph 7 of the Independent Contractor Operating Agreement (“ICOA”) that he entered into with Prestige on or about February 20, 2008. See, Ex. A to the Fourth Amended Complaint. Paragraph 7 of the ICOA provides that:
....[Watson] hereby authorizes a deduction from the compensation paid to [Watson] in the amount of $20.50 per week [] which amount represents a fee for providing and maintaining electronic communication devices, including pagers and/or radios and/or cellular phones, providing uniforms as specified in section 15 below, providing intrastate annual tax receipts and single state registration, and for administrative services related to [Watson’s] engagement, all for use by [Watson] under the [ICOA],

Clary authorized NICA to make the above-referenced deductions in Paragraph 2 of NICA’s Independent Contractor Application and Agreement (“ICAA”) that he entered into with NICA on or about August 10,2007. See, Ex. B to the Fourth Amended Complaint. The relevant provisions of Paragraph 2 of the ICAA provide that:

2. NICA Affiliation Fees:
* * *
b. Drivers: If the IC operates a vehicle less than 18ft, the IC agrees to pay NICA an affiliation fee of $23.95 per week (with reduced fees for ICs earning less than $400.00 per week in gross commissions) or $47.80 biweekly or $51.69 semi-monthly, as dictated by the CC’s settlement period, plus an initial account setup fee/ application fee of $25.00. If the IC operates a straight truck over 18 ft, the IC agrees to pay an affiliation fee of $3.95 per week (reduced fees available). If the IC operates a tractor-trailer, the IC agrees to pay an affiliation fee of $41.25 per week.
c. The IC agrees to have these fees deducted from his/her settlement check. If the IC does not perform services, no fees are due and no coverage is in place. Non-payment of the aforementioned fees constitutes inadequate grounds for cancellation of all benefits and services to which the IC is entitled as an affiliate. IC also agrees to have additional fees, if any, generated from the cost of doing business with a CC or independently, deducted from his/her settlement check. These fees may include but are not limited to applicable rental fees for communication devices or equipment uniforms and vehicles.

According to NICA, these above deductions, authorized by plaintiffs, are authorized in Section 9.1(11) of the regulations. Thus, Count II of the Fourth Amended Complaint must be dismissed.

Plaintiffs’ Argument

Plaintiffs contend that defendants cannot prevail simply by showing that the deductions which are subject to 34 Pa. code 9.1(11) and (12) were authorized by the employee in writing. There is a second requirement that these deductions are “for the convenience of [the employe].”

Plaintiffs correctly state that I must overrule defendants’ preliminary objections to Count II if there is a second requirement that the deductions be for the “convenience of employees” because allegations in the Fourth Amended Complaint describe the deductions that were not for the convenience of plaintiffs. For example, ¶15 of the Prestige agreement with plaintiffs requires all delivery personnel to supply and wear a uniform identifying the carrier and invest in a pager, and, when customer requirements dictate, a two-way radio and/or cellular phone. Deductions for uniforms and communication devices are not for the convenience of the employee but, rather, are for the benefit of Prestige whose customers require that drivers wear uniforms and carry pagers or cell phones.

There is support for defendants’ argument that the deductions coming within Section 9.1(11) are permitted without any consideration of whether they are for the convenience of the employee.

Section 9.1(11) does not include a clause that limits deductions for purchases or replacements from the employer “for the convenience of the employee” while Section 9.1(12) specifically limits deductions forpurchases from third parties to “purchases by that employe for his convenience.”

It is a well-recognized rule of construction that the inclusion of “for his convenience” in Section 9.1(12) and its exclusion in Section 9.1(11) indicates that the Regulations intended to allow any deductions authorized by the employee in writing where the purchases or replacements were from the employer.

However, there are other rules of construction that support a reading of Section 9.1(11) as covering only deductions for purchases or replacements that are for the convenience of the employee.

First, the introductory paragraph of Regulation Section 9.1 refers to deductions from wages “authorized for the convenience of employes.” In deciding whether this clause is part of Section 9.1(11), I look to the case law which provides that, if possible, a regulation shall be construed in a manner consistent with the purpose of the underlying statute. Slippery Rock Area Sch. Dist. v. Unemployment Comp. Bd. of Rev., 983 A.2d 1231, 1241 (Pa. 2009); Berkovich v. Com. Dept, of Pub. Welfare, 452 A.2d 896, 898 n.3 (Pa. Cmwlth. 1982); and Dolan v. Bd. of Finance & Revenue, 333 A.2d 219, 221 (Pa. Cmwlth. 1975).

The purpose of the Wage Payment and Collection Law is to protect employees from economic coercion. See Ressler v. Jones Motor Co., 487 A.2d 424, 428-29 (Pa. Super. 1985). Consequently, the Department of Labor and Industry, in enacting regulations authorizing deductions “for the convenience of employes,” would not have intended to give employers a free pass as long as the job-seeking worker would sign a piece of paper authorizing a deduction. Under defendants’ reading of No. 11, the employer (with the employee’s written authorization) could make deductions for the purchase by the employee of specific safety equipment required on the job, the purchase of tuxedos for parking attendants, maintenance fees for the employer’s equipment (e.g., vehicles) which the employee uses, or the payment of damages to company equipment.

If I read Regulation Section 9.1(11) in the manner that defendants propose, I would reach a result the Department of Labor and Industry could not have intended: that an employer may deduct from the employee’s wages the cost of work uniforms purchased from the employer, but the employer cannot make similar deductions if the employer directs the employee to purchase the uniforms from a third party.

In sum, for the reasons stated above, I am certain that the Department of Labor, in promulgating regulations to further the policies and objectives of the Wage Payment and Collection Law, did not intend to authorize deductions for purchases or replacements made by the employee from the employer that were for the convenience of the employer and not for the convenience of the employee.

For these reasons, I overrule defendants’ preliminary objections to Count II of Plaintiffs’ Fourth Amended Complaint.

PRELIMINARY OBJECTIONS OF PRESTIGE AND NICA TO COUNT IV-FRAUDULENT MISREPRESENTATION

Defendants seek dismissal on the grounds that plaintiffs have failed to identify any specific misrepresentations, plaintiffs have failed to adequately allege the manner in which they detrimentally relied on the representations, and plaintiffs have failed to plead damages.

I am overruling these preliminary objections. Plaintiffs base their fraudulent misrepresentation claims on the contents of their Agreements with Prestige and NICA; according to plaintiffs, these Agreements fraudulently misrepresented the relationship between plaintiffs and Prestige. Plaintiffs allege that they relied on this description of their relationship with Prestige and NICA and made payments that should have been made by the employer, including workers’ compensation and FICApayments.

PRELIMINARY OBJECTIONS OF PRESTIGE AND NICA TO COUNTV-CIVIL CONSPIRACY

To state a claim for civil conspiracy, a complaint must allege: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuit of the common purpose; and (3) actual damage. McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 660 (Pa. Super. 2000).

Plaintiffs’ allegations support a civil conspiracy claim as to Prestige and NICA. Plaintiffs’ allegations, if established, support a finding that Prestige and NICA were participants in a scheme through which plaintiffs and others similarly situated were instructed to make FICApayments, payments for workers’ compensation benefits, and other payments that were the responsibility of Prestige.

PRELIMINARY OBJECTIONS OF PRESTIGE AND NICA TO COUNT VI-UNJUST ENRICHMENT

Prestige contends that this count must be dismissed because the parties’ relationship is governed by a written contract. I disagree.

Plaintiffs’ unjust enrichment claim is based on their contention that the relationship is governed by employment law rather than writings that do not accurately describe the relationship between plaintiffs and Prestige. The Complaint describes how Prestige has been unjustly enriched through plaintiffs’ payments that were the responsibility of Prestige.

I am overruling NICA’s preliminary objections seeking dismissal of this count because plaintiffs may be seeking disgorgement of payments made as part of an illegal enterprise.

PRELIMINARY OBJECTIONS OF PRESTIGE AND NICA TO COUNT I — EQUITABLE RELIEF

I am dismissing this count. Named plaintiffs are no longer employed by Prestige and are not likely to be employees in the future.

Declaratory relief is unnecessary because if plaintiffs can establish that defendants’ practices are unlawful, they will be fully compensated for these unlawful acts.

PRELIMINARY OBJECTIONS OF NICA TO

COUNT III — PENNS'YLVANIA MINIMUM WAGE ACT (43 P.S. §§ 333.102 et seq.

The Minimum Wage Act permits civil actions to be brought against an employer who has paid less than the minimum wage. 43 P.S. § 333.113. The term employer is broadly defined to include any person or entity acting “directly or indirectly, in the interest of an employer in relation to any employe.” 43 P.S. § 333.103.

Plaintiffs have alleged that NICA and Prestige are parties to a scheme in which NICA will act in the interests of Prestige in relation to plaintiffs by assisting Prestige in mischaracterizing an employer-employee relationship as a relationship in which the workers are independent contractors. While NICA contends that the allegations within the complaint establish at most that NICA was a third party that provided various administrative services to both Prestige and plaintiffs, plaintiffs’ allegations support a finding that NICA was a knowing participant in the scheme to deny plaintiffs the minimum wages required under the Minimum Wage Law. Its participation in this scheme brings NICA within the scope of the Minimum Wage Act.

Thus, I overrule defendant’s preliminary objections to Count III.

PRELIMINARY OBJECTIONS OF THOMAS McGRATH

I next consider the preliminaiy objections of Mr. McGrath. He contends that in his dealings with Prestige and the truck drivers making Prestige’s deliveries, he was acting in his corporate capacity. Consequently, he is not individually liable for the acts of NICA.

Plaintiffs seek to hold Mr. McGrath liable on any causes of action under which NICA is liable. Plaintiffs base their claim against Mr. McGrath on the following allegations in their Fourth Amended Complaint:

Mr. McGrath founded NICA in 1993; he is its CEO, President, and 100% shareholder; and he exercises near control over the affairs of NICA.

Plaintiffs contend that the Fourth Amended Complaint contains sufficient factual allegations to support a piercing of the corporate veil. I disagree. I am sustaining Mr. McGrath’s preliminary objections as to claims based on piercing the corporate veil because case law does not permit the corporate veil to be pierced on a showing that a corporation is owned and operated by a single person coupled with general allegations that the corporation is a shell. Fletcher-Harlee Corp. v. Szymanski, 936 A.2d 87, 95 (Pa. Super. 2007).

I reach a different result with respect to plaintiffs’ claims that Mr. McGrath is liable for the actions of NICA because of his individual participation. Under Pennsylvania case law, the participation theory imposes liability for participation in tortious activities. The participation theoiy has nothing to do with whether the corporation is or is not a sham. Liability is imposed against individuals who participated in the tortious acts committed on behalf of the corporation. “Such liability is not predicated on a finding that the corporation is a sham and a mere alter ego of the individual corporate officer. Instead, liability attaches where the record establishes the individual’s participation in the tortious activity.” Wicks v. Milzoco Builders Inc., 470 A.2d 86, 90 (Pa. 1983).

Plaintiffs’ allegations that Mr. McGrath exercises near control over the affairs of NICA supports recovery against Mr. McGrath based on his active participation.

Mr. McGrath also seeks dismissal on the ground of a lack of jurisdiction over his person. However, the allegations that support recovery under the participation theory support a finding that this court may exercise jurisdiction over Mr. McGrath for his participation in this scheme to mischaracterize the status of plaintiffs and other drivers.

For these reasons, I enter the following Order of Court:

ORDER OF THE COURT

On this February 7, 2013, upon consideration of defendants’ preliminary objections, it is ordered that Count I is dismissed, and claims based on piercing the corporate veil are dismissed.

      . In an October 23, 2007 letter sent in conjunction with unemployment compensation proceedings, NICA (as Prestige’s designated representative) described David Clary’s relationship with Prestige and NICA as follows:
      On or about August 10, 2007, the claimant began performing delivery services on Prestige’s behalf, Prior to performing services, the claimant executed several documents acknowledging his independent contractor status including an independent Contractor Operating Agreement and Independent Contractor Acknowledgment attached hereto. Additionally, the claimant joined NICA, Inc. (“NICA”) by completing an Independent Contractor Application and Agreement. NICA offers services to its affiliated independent contractors, including occupational accident insurance, tax services, access to disability insurance, a tax escrow program, and assistance with the independent contractor’s business advertising.

      . Mr. McGrath is identified in Plaintiffs’ Fourth Amended Complaint as the president, vice president, treasurer, director, CEO, and 100% shareholder of NICA. He founded NICA in approximately 1993.

      . As the Pennsylvania General Assembly has recognized, the “’freedom of contract’ as applied to [employees’] relations with their employers is illusory,” given the level of inequality in bargaining among them. 43 P.S § 333.101.

      . The availability of proceedings in a Magisterial District Court allows a worker, without the assistance of counsel, to bring a lawsuit with very relaxed pleadings and with service by mail in a court located in the vicinity of the worker’s place of employment/residence and to obtain a hearing within twelve to sixty days of the institution of the suit.

      . The enforceability of arbitration clauses, on the other hand, is governed by the Federal Arbitration Act.

      . I am not suggesting that rulings made in court proceedings involving unemployment compensation claims govern this litigation. I am referring to these Findings of Fact only because they succinctly describe the allegations in Plaintiffs’ Fourth Amended Complaint.

      . While NICA correctly states that an agent of a corporation cannot conspire with the corporation of which it is an agent, the factual allegations in Plaintiffs’ Fourth Amended Complaint do not require a finding that NICA’s participation was solely as an agent of Prestige.

      . Prestige did not file preliminary objections to Count III.

      . These allegations are consistent with McGrath’s deposition testimony taken in Dillon v. NICA, Inc. and Thomas M. McGrath, et al., Civil Action No. 07N0067, Circuit Court for Putnam County, Tennessee.


author: COLINS, J.,

text:
    Schall v. Windermere Court Apartments

      Thomas More Marrone, for plaintiffs.

      Gail White, for defendants.
    February 6, 2013
   COLINS, J.,

Before the court is the motion of the plaintiffs, Theodore Schall (Schall) and John Brendan Farley (Farley), to certify the following class in connection with their claims of negligence and private nuisance arising out of a January 10, 2011, fire at Windermere Court Apartments in Philadelphia:

All individuals who suffered property damage and/ or property loss and/or loss of use and enjoyment of law and/or economic loss or physical deprivation of, and physical displacement from, residents as a result of the January 10, 2011 fire at the Windermere Court Apartments, and their subrogees, if any. Excluded from the class are defendants and their directors, officers, past and present employees, partners, affiliates, and subsidiaries.

After a review of the briefs and arguments of counsel and the record, including the transcript of the class certification hearing on November 15, 2012, the court issues the following findings of fact and conclusions of law, and certifies the foregoing class with modifications that limit its members to residents, lessees and lawful guests of Windermere Court Apartments.

FINDINGS OF FACT

1) This is a class action on behalf of individuals and entities that allegedly suffered losses as a result of a catastrophic fire and its aftermath at the Windermere Court Apartments (the Windermere), a multi-wing, four-story apartment building at the 4800 block of Walnut Street in Philadelphia, starting the night of January 10, 2011, and continuing into the morning of January 11, 2011. Exhibit WIND 19 (Joint Fire Report).

2) The named plaintiffs are Theodore Schall and John Brendan Farley, former residents and tenants at the Windermere at the time of the fire that originated in the Windermere building on January 10, 2011. Exhibits PI (Complaint) and P2 (Answer to the Complaint).

3) The defendants are Windermere Court Apartments, Windermere Court Management Corp., Keystone Management, LLC, Keystone Management Group, LLC, Yisroel “David” Ginsberg, Shalom (“Sam”) Ginsberg, and Aron Ginsberg who together owned, possessed, controlled and/or management the Windermere. Id.

4) Defendants Windermere Court Apartments, Windermere Court 2005, LP and Windermere Management Corp. owned and managed the Windermere, a multi-wing, four-story apartment building. Id.

5) Defendants Keystone Management, LLC and Keystone Management Group, LLC, possessed, controlled and/or managed the Windermere, as did David Ginsberg, Sam Ginsberg, and Aron Ginsberg. Id.

6) Defendants joined All Purpose Security (APS), a security guard service, as a defendant in this action on February 17, 2012. Transcript of the Class Certification Hearing, November 15, 2011 (N.T.) at 50.

7) On January 20, 2011, a fired originated in the Windermere. Exhibit P3 (City of Philadelphia Report of Fire Alarm). Complaint at ¶33.

8) The five-alarm fire required approximately 140 firefighters to bring it under control. Tenants’ property was damaged by fire, smoke and/or water. In addition, tenant-owned property that remained in the wreckage in the aftermath of the fire was destroyed when the building ultimately was razed. Complaint ¶ 34; Exhibit PI3; N.T. at 11-12, 32-38;.

9) Between 100 to 200 residents and/or tenants were affected by the fire and its aftermath. Exhibit P13 (ATF Report); Exhibit P10 (Windermere Master Contact List).

10) Plaintiff Schall, who lived in Apt. 313B, claims property damage and loss in the amount of $52,874.58 and additional $4,378.76 in post-fire expenses. Exhibit P7 (expert repot of William Underkoffler (Underkoffler), Director of Adjusting, Metro Public Adjustment (Schall Report)); N.T. at 11-5 (Schall Testimony); N.T. at 143-59 (Underkoffler Testimony); Exhibit P8 (Schall’s damages inventory).

11) Plaintiff Farley, who lived in Apt. B6, claims property damage and loss in the amount of $17,555.91. N.T. at 31, 143-59 (Underkoffler Testimony); N.T. at 32-38 (Farley testimony).

12) The exact location of the origin of the fire is disputed. N.T. at 106. Plaintiffs contend that it began in apartment 213B. Exhibit P13 (City of Philadelphia Report of Fire Investigation; Exhibit P4 (US Department of Justice, Bureau of Alcohol Tobacco Firearms and Explosives Report of Investigation (ATF Report)); Exhibit PI2 (report of plaintiffs’ expert, Paul J. Boemer, CFEI (Boemer Report)). Defendants claim that it started in the “south wall of the ‘C’ building, adjacent to a shaft way. Exhibit Wind 2 (schematic) and Exhibit 19 (Joint Fire Report).

13) C. Brent Harris, M.S., CFI, CFEI (Harris), plaintiffs’ expert on the cause and origin of fires, fire safety, alarm, prevention, and suppression, testified that defendants’ negligence included: failure to equip the Windermere with a fire detection and suppression system, including a sprinkler system; an alarm system that was fully operational: and disabling of the alarm system once it did sound (thus thwarting the efforts of firefighters to find the location of the fire’s origin). Exhibit P5 (Harris Report); N.T. at 78-94 (Harris’ testimony).

14) Harris also testified that if the defendant had equipped Windermere with a functioning fire alarm system and sprinkler system, the damage at Windermere “would have consisted of smoke and fire damage to the area-of origin, preliminarily believed to be Unit 213B.” Exhibit P5 (Harris Report) at 5; N.T. 81-83.

15) Finally, Harris testified that while his preliminary opinion is that the fire originated in Apt. 213B, any fire-modeling he performs for trial in this matter can take into account alternative fire-origin sites. N.T. at 81, 95, 97, 1109-111 (Harris’testimony).

16) Defendant APS provided the Windermere 24-hour, seven-day-a-weelc, security services staring on January 19, 2011, nine days after the fire, until February 8, 2011; starting about seven days later, APS returned to the Windermere to provide limited services. N.T. at 52-54; 57-58.

CONCLUSIONS OF LAW

17)Rule 1702 sets for the requirements for certification of a class:

One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

Pa.R.Civ.P. 1702.

18) Decisions regarding the certification of a class “should be made liberally and in favor of maintaining a class action.” Liss & Marion, P.C. v. Recordex Acquisition Corp., 937 A.2d 503, 509 (Pa. Super. 2007) (“Liss F), aff’d, 983 A.2d 652 (Pa. 2009) (“Liss II”); Janicik v. Prudential Ins. Co., 451 A.2d 451, 454 (Pa. Super. 1982).

19) The party seeking class certification bears the burden of proof which is “not heavy” because of Commonwealth policy favoring liberal recognition of class actions. Janicik, supra, at 454 (stating that “a strict burden of proof is inconsistent with the policy of our Commonwealth that ‘decisions in favor of maintaining a class action should be liberally made.’”).

20) Accordingly, the class proponent’s burden is only that “evidence sufficient to make out a prima facie case ‘from which the court can conclude that the...class certification requirements are met.’” Liss I, 937 A A.2d at 509.

21) The certification process “is designed to decide who shall be the parties to the action and nothing more.” Samuel-Basset v. KIA Motors America, Inc., 34 A.3d 1, 15-16 (Pa. 2011) (“A7a”); Pa.R.V.P. 1707 cmt.

22) The proponent is not required at the class certification stage to prove the merits of the substantive case. Samuel-Bassett v. Kia Motors America, Inc., 68 Pa. D.& C. 4th 270, 2004 WL 2173324, *3 (Phila. C.P. November 10, 2004). Doubts concerning class certification should be resolved in favor of the class proponent. Janicik, 451 A.2d at 454.

23) Class representatives are not required to prove that the claims of all class members are identical. Kia, 34 A.3d at 23.

24) Where the most essential elements of the proposed class members’ cause(s) of action may be proven through simultaneous class-wide evidence, class certification is preferred. Id. at 23.

25) Whether causation can be established on a class-wide basis is an issue for the finder of fact and the “plaintiff need not exclude every possible explanation so long as reasonable minds can conclude that the defendant’s conduct was the proximate cause of harm[.]” Kia, 34 A.3d at 26.

26) Questions regarding the amount of individual damages do not preclude a class action. Cambanis v. Nationwide Ins. Co., 501 A.2d 635, 640 (Pa. Super. 1985).

27) Where class actions implicate different damages among class members, trial courts have the power and authority to employ a variety of methods to manage the damages portion of the litigation. Kia, 34 A.3d at 29.

Numerosity: Rule 1702(1)

28) To be certified, the proposed class must be “so numerous that joinder of all members is impracticable.” Pa.R.Civ.P. 1702(1). When deliberating on numerosity, courts shall consider whether lawsuits by potential individual plaintiffs would pose an inordinate drain on the resources of both the courts and the litigants. Janicik, 451 A.2d at 456. Proof of the exact number of class members is not required so long as the class can be defined with sufficient specificity to enable the court to decide the practicality of joinder. Id. at 456.

29) The Windermere has 99 units and, at the time of the fire, approximately 100-200 people were residents. Exhibit P10 (Windermere Master Contact List).

30) The court finds that the class is of sufficient size to satisfy the numerosity requirement and rejects the Windermere defendants’ contention that the requirement cannot be met where putative class members must prove actual damages with proof that is fact-intensive and individualized. Page 48, Defendants’ Memorandum in Opposition to Motion for Class Certification (Opposition Memo). Defendants’ reliance on Weinberg v. Sun Co., 777 A.2d 442 (Pa. 2001) is misplaced. In Weinberg, the question facing the court was whether in a private cause of action under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. § 201-1 et seq., putative class members were required on liability to show individual reliance on what they claimed was statutorily-prohibited false advertising of the Ultra gasoline that they purchased from the defendants. Ill A.2d at 446. To the extent that plaintiffs’ statutory claims required individual proof on their case on liability, Weinberg does not apply. [To the extent that defendants’ numerosity analysis merges with the debate on “commonality,” it is addressed below],

31) The court finds that that the numerosity requirement, Rule 1702(1), Pa.R.Civ.P. is satisfied.

Commonality: Rule 1702(2)

32) The questions of law or fact common to the class generally exist if the members’ grievances arise out of the “same practice or course of conduct on the part of the class opponent.” Liss II, 983 A.2d at 664.

33) Commonality is established by showing a “common source of liability.” Kia, 34 A.3d at 22.

34) The court finds that the following issues concerning the origin and cause of the fire and the cause or causes of the spread of the fire are common as to all class members: (a) whether the defendants failed properly to select, install, inspect, operate, manage and/or maintain appropriate fire protection system(s) at the building; (b) whether the defendants knew or should have known of its failures regarding its fire protection system(s); (c) whether the defendants’ failures with regard to its fire protection system(s) caused, contributed to or failed to control the fire at the Windermere; (d) whether the fire and the subsequent suppression activities caused damage to the properties of the plaintiffs and class members; (e) whether defendants failed to take adequate steps to salvage or protect the property of the plaintiffs or class members; (f) whether the defendants were liable for any harm to the plaintiffs and class members; (g) whether defendants acted outrageously or with reckless indifference to the rights of the plaintiff and class members so as to warrant the imposition of punitive damages. All these issues go to the plaintiffs’ prima facie claims and pertain to all class members; in short, the common question is whether the defendants’ were negligent regarding the fire.

35) Defendants argue that a finding of commonality is foreclosed by the fact that (a) the class includes different groups of potential claimants, (b) the property claimed to have been damaged was located in different areas of the building, and (c) plaintiffs have alleged different types of damages (namely, fire, water, smoke, or theft). ¶¶ 123-126 ofDefendants ’Proposed Findings of Fact and Conclusions of Law (Defendants’ Findings).

36) Plaintiffs counter that defendants’ subdivision of the class is artificial and that it is based inappropriately on the nature and extent of damage, rather than whether the defendants’ negligence was the source of that damage.

37) The court finds that the questions of negligence (the conduct of Windermere personnel, adequacy of smoke and fire detection, and alarm and sprinkler systems) are common to the class and that proof on these issues as to one is proof as to all. Liss II, 983 A.2d at 663 (stating that on the issue of commonality, facts must be substantially the same so that proof as to one claimant would be proof as to all). Regarding purported differences among class members, the court notes preliminarily that the class it certifies excludes insurance carriers and nonresidents, leaving only residents of and lawful guests at the Windermere who suffered property loss. As to those members who remain — tenants, lessees, and guests who claim losses due to the fire — the liability issue is straightforward: were the defendants negligent in this case? The questions are simple: did the Windermere fail properly to instruct personnel regarding fire protocol; was its fire detection and alarm system inadequate; should it have had a sprinkler system? The answers to these questions are common to all class members and susceptible of a jury determination.

Afire is a complex thing and has complex consequences, and the defendants are correct that certain variables will affect determinations on damages: which residents had insurance, which did not; was property damaged by fire, smoke, water, or theft, or was it destroyed when the building was razed? But the underlying question — were defendants negligent — is the same for all. It is addressed with evidence of the defendants’ practices and systems, findings as to which will be the same for everyone.

Questions of negligence, causation and damages are sometimes blurred and inseparable. In this case, however, all subsidiary questions flow from the single inquiry: did defendants breach a duty of care owed to their residents and lessees? Only when this question is answered can the trial proceed on the other matters. It is a singular benefit of class action treatment that this question be asked and answered once, thereby averting inconsistent negligence findings that otherwise would flow from individual lawsuits.

Defendants really are arguing that the class members’ damages claims are not common. That is true. Class action litigation, however, long has afforded courts a variety of means to manage and administer damages claims when liability has been established. Kia, 34 A.3d at 29 (where damages require individualized treatment, the court has available a variety of methods to manage remedies while protecting the defendant’s rights). This case presents nothing that militates against use of such methods. Balanced against the burden on our resources occasioned by individual trials for each claimant, this court finds that class action is the superior approach.

The fire case on which defendants rely, In Re: One Meridian Plaza Fire Litigation (Meridian), 1993 U.S. Dist. LEXIS 9841 (E.D.Pa. 1993), is not controlling. In Meridian, decided pursuant to Rule 23, Fed. R.C.P., the plaintiffs sought certification of five different classes whose members allegedly suffered losses due to a catastrophic fire at Meridian Plaza in Philadelphia in February of 1991. Unlike the proposed class in this case, the classes in Meridian included building owners, tenants, employees of tenants, and businesses located not in the building itself, but in various parts of the community. More important, the Meridian case was brought against numerous defendants and each was charged with playing a different role in the subject fire. The court ruled that class treatment was not “superior to other available methods” because, among other reasons, the differing liability claims as to each defendant presented insurmountable difficulties in adjudicating the controversy. Id. at *25-28. Here, plaintiffs charge only that the Windermere was negligent and the proposed class, as modified by the court, consists of a discrete, definable group of individuals. This is a case in which the court easily may “envision the form that a trial on [the] issues would take.” Kia, supra, at 15-16 (quoting Hohider v. United Parcel Serv., 574 F.3d 169, 175-76 (3d Cir. 2009).

38) The court finds that questions of law and fact are common to the members of the class as required by Rule 1702(2), Pa.R.Civ. P.

Typicality: Rule 1702(3)

39) Rule 1702(3) requires that “[t]he claims...of the representative parties [be] typical of the claims... of the class.” Pa.R.Civ.P. 1702(3). The purpose of the typicality requirement is “to determine whether the class representatives’ overall position on the common issues is sufficiently aligned with that of the absent class members to ensure that [his/her] pursuit of [his/her] own interest will advance those of the proposed class members.” D' Amelio v. Blue Cross of Lehigh Valley, 500 A.2d 1137, 1146 (Pa. Super. 1985).

40) While the class representatives’ claims have to arise out of the “same course of conduct and involve the same legal theories as those of other members of the class,” they do not have to be identical. Kia, 34 A.3d at 31. Typicality may be found despite the existence of factual distinctions between the claims of the named plaintiff and those of the proposed class. Id.

41) Defendants argue that Schall and Farley have claims that are not typical of that of the class because their claims that their property was destroyed by the fire itself differs from the claims of those whose property survived or was damaged instead by smoke, water or demolition. This argument is difficult to dissect. If a class member’s property survived, he or she will have no claim; if it was destroyed by the fire and any of its natural consequences (smoke, fire, demolition), he or she will be put to the proof when it comes time assess damages. The differences in damages claims do not defeat a finding of typicality. Kia, 34 A.3d at 31.

42) Defendants also argue that damages flowing from inadequate systems (fire and smoke alarms, sprinkler system) will vary depending on the location of each class member’s property in relation to the fire’s origin and that therefore Schall and Farley cannot adequately represent their interests. ¶ 124, Defendants’Findings. This argument is no different from, and no more persuasive, that the argument that differences in the type of damage militate against class action. If a jury finds that the defendants were negligent, all class members will have the same opportunity as Schall and Farley to establish factual causation and the nature and extent of their damages, and defendants will have the opportunity to launch any defense that might be appropriate (for example, lease terms, insurance, mitigation, unjust enrichment, and so on). Schall’s and Farley’s damages claims do not have to be identical to those of all class members; they need show only that their overall position “on the common issues,” namely negligence, is sufficiently aligned with that of the class so that it can be said that the plaintiffs’ interest will advance those of the class. Janicik, 451 A.2d at 457.

43) The court finds that plaintiffs have met their burden on the “typicality” perquisite to class certification under Rule 1702(3).

Adequacy of Representation: Rule 1702(4)

44) Rule 1702(4) requires that the class representative(s) “will fairly and adequately assert and protect the interests of the absent class members.” Pa.R.Civ.P. 1702(4).

45) When determining whether the plaintiffs in this case have satisfied Rule 1702(4), the court’s considerations include (a) whether the attorney for the representative party will adequately protect the class’ interest; (b) whether the representative party has a conflict of interest in maintaining the cause of action; and (c) whether the representative party has or can acquire adequate financial resources. Pa.R.Civ. 1709.

46) There is no genuine dispute as to the adequacy of the skills and experience of plaintiffs’ counsel, nor is there any contention that plaintiffs and their attorney do not have adequate financial resources to maintain this class action. As already explained, the court also finds no evidence or persuasive argument that the named plaintiffs have a conflict of interest with members of the proposed class.

47) The court finds that plaintiffs have met their burden to show that they adequately represent the members of the class as required by Rule 1702(4), Pa.R.Civ.P.

Fair and Efficient Method for Adjudicating This Controversy: Rule 1702(5).

48) Rule 1702(5) provides that a class action may be maintained if it “provides a fair and efficient method for adjudication of the controversy” under the criteria set forth in Rule 1708. Pa. R.Civ.P. 1702(5). Rule 1708 provides that the court shall consider whether: common questions of law and fact predominate (R. 1708(a)(1)); class action is manageable (Rule 1708(a)(2)); there is a risk of inconsistent adjudication in the absence of class certification (Rule 1708(a)(3)); the extent and nature of other litigation (Rule 1708(a)(4)); the particular forum is appropriate for litigation of the class claims (1708(a)(5)); the complexity of issues and expenses of litigation would likely deter separate actions (Rule 1708(a)(6)); there is no likelihood of de minimis recovery (Rule 1708(a)(7)); and the defendant’s generally applicable conduct (Rule 1708(b)(2)).

49) This class action satisfies the requirements of Rule 1702. The class is not burdensomely large. As tenants and lessees, its members are easily identifiable and to the extent that their damages claims are distinct, the court has at its disposal a variety of means to manage them, including the appointment of a special master.

50)The court also finds that in the absence of class certification separate actions on behalf of individual claimants pose a substantial risk of inconsistent adjudications. On liability there are factual disputes regarding: the origin of the fire; whether Windermere personnel acted properly under the circumstances; whether fire safety systems were adequate; and whether there should have been a sprinkler system. These issues are complex and require expert analysis which likely would differ in individual actions, resulting in substantive determinations on negligence that cannot be reconciled with each other. The only other lawsuit arising out of this fire, the prosecution of which the court finds in insufficient to defeat class certification, illustrates the risk; it presents a different theory of the origin of the fire than those presented in this case.

51)The court finds that the same complex issues requiring expert analysis also would likely deter separate action. The plaintiffs, whose apartments were close to the fire’s origin (wherever it was) testified to losses exceeding $57,000 and $17,000, respectively. Such losses, while significant to the plaintiffs, are not so large as to offset the substantial and duplicative costs of requiring putative class members to pursue their claims individually.

52)At the same time, the plaintiffs’ losses demonstrate that the aggregate recovery of all the class members is not likely to be de minimus. (Rule 1708(a)(7)); Baldassari v. Suburban Cable TV Co., 808 A.2d 184, 195 (Pa. Super. 2003) (though individual claims may be small, the aggregate recovery might deter future violations by the defendant).

53) The court finds that class treatment is a fair and efficient method of adjudicating this controversy under Rule 1792(5), Pa.R.Civ.P.

Defendants’ claims against joined-defendant All Purpose Security

54) Neither plaintiff claims to have lost property to theft in the aftermath of the fire and neither claimed to have any knowledge of anyone else who did. N.T. at 28-29; 54.

55) There is no evidence that APS had any connection with the cause of the fire or any of its consequences. Id. at 29-30.

56) Plaintiff does not seek class certification as to APS and the court declines to do so.

Limitations on the Proposed Class

57) The court finds that the class proposed by the plaintiffs includes, by implication, persons whose claims are unclear, remote and speculative: subrogees and nonresidents who may have suffered some collateral damage from the fire and its aftermath. Accordingly, the court certifies the class as to the Windermere defendants only as follows:

All tenants, lessees, and sub-lessees who suffered property damage and/or property loss (including loss of or damage to property in their possession in their residential units, but belonging to their lawful guests or invitees), and/or loss of use and enjoyment of land and/ or economic loss and/or physical deprivation of, and physical displacement from, the residences as a result of the January 10, 2011, fire at the Windermere; and all lawful guests and invitees present at the Windermere on January 10,2011, and who suffered property loss or damage as a result of the fire.
Excluded from the class are defendants and their directors, officers, past and present employees, partners, affiliates and subsidiaries.

The court enters the following order:

ORDER

And now, February 6, 2013, upon consideration of the plaintiffs’ motion for class certification, any response thereto, and after taking testimony and evidence at a class certification hearing on November 15, 2012, it is ordered that the motion is granted and the class is certified, with modifications, as to the Windermere defendants only.

The certified class is as follows:

All tenants, lessees, and sub-lessees who suffered property damage and/or property loss (including loss of or damage to property in their possession in their apartments, but belonging to their lawful guests or invitees), and/or loss of use and enjoyment of land and/ or economic loss and/or physical deprivation of, and physical displacement from, the residences as a result of the January 10,2011, fire at the Windermere; and all lawful guests and invitees present at the Windermere on January 10,2011, and who suffered property loss or damage as a result of the fire.
Excluded from the class are defendants and their directors, officers, past and present employees, partners, affiliates and subsidiaries.

      . Unless otherwise indicated, the court relies on the exhibit designations used by the parties at the November 15,2011, hearing.

      . The defendants enumerated in paragraphs 3 through 5 shall be referred to collectively as “the defendants.”