author: FRIEDMAN, J.,

text:
    Pleasant Hills Construction Company Inc. v. Public Auditorium Authority of Pittsburgh

      C.P. of Allegheny County,
    no. GD 99-15038.

      Charles F. Scarlata, for plaintiffs.

      Arnd N. von Waldow, for defendant Public Auditorium Auth.

      Mark S. Shaffer, for defendant Limbach Co.
    January 27, 2000
   FRIEDMAN, J.,

INTRODUCTION

The defendant Public Auditorium Authority of Pittsburgh and Allegheny County has appealed an order of the undersigned entered in favor of the individual plaintiff, Gary C. Hartman, hereinafter the taxpayer, preliminarily enjoining the PAA and its successors from future noncompliance with certain legislation regarding public construction projects, pending entry of a final adjudication. The court declined to grant any of the relief sought by the corporate plaintiff. The court also denied the taxpayer’s request to annul the contract with defendant Limbach Company and denied the taxpayer’s request to order the PAA to enter into a contract with the corporate plaintiff. Neither plaintiff has appealed these rulings.

The order at issue is based on the interpretation of two recent pieces of legislation, Senate Bill 572 of 1999 (S.B. 572, section 22) and 72 P.S. §3919.318 (section 318), hereinafter collectively referred to as the special legislation, and their impact on earlier legislation which is still in effect, hereinafter collectively referred to as the preexisting legislation and more commonly referred to as the Separations Act and the lowest responsible bidder requirement.

There is one main issue but many sub-issues, hence the length of this opinion. In the final analysis, the question is whether the legislature, when voting on S.B. 572 of 1999, understood and intended the word “bidding” to mean the entire bidding process, as the PAA contends, or whether they understood arid intended it to mean only the solicitation of bids, as the court concluded. The PAA also contends that the language in question are words of repealer. (Transcript of hearing, p. 105,11. 11-12.) The key legal principle about which there is no dispute is that words of repealer must be express.

The court concluded, based on the scant legislative history available, that the legislature deleted express words of repealer before they passed S.B. 572, thereby expressing an intention incompatible with the PAA’s position. Lastly, the court concluded that, whoever else may have intended the PAA’s interpretation, it was not the legislature when it voted on this bill.

ISSUES

The PAA, the only appellant, has filed a “concise statement of matters complained of on appeal” and a “supplemental concise statement of matters complained of on appeal,” hereinafter referred to collectively as statements.

In its statements, the PAA raises, in somewhat different language, the following eight issues, in the following order;

(1) That the court should have deferred to a ruling in a similar case by another judge of this court.

(2) That the court should not have granted preliminary injunctive relief in favor of the taxpayer, who the PAA states is “estopped from asserting his present claims.”

(3) That the taxpayer “lacks standing to bring this suit.”

(4) That the court should not have “award[ed] preliminary injunctive relief in a manner never requested by plaintiffs.”

(5) That the court should have afforded two other defendants, who have not appealed, an opportunity to be heard.

(6) That the court erroneously interpreted the special legislation.

(7) That the “plaintiffs [sic] fail[ed] to establish all the elements necessary for an award of injunctive relief.”

(8) That nominal bond of $1, ordered to be filed by the taxpayer, is insufficient.

DISCUSSION

Although the court had written an extensive memorandum in support of the order now appealed from, the PAA has limited its appeal to the eight alleged errors described above. Except for item no. 6, which the court believes is dispositive and therefore addresses first, the alleged errors will be discussed in the order listed by the PAA.

1. The Court Correctly Interpreted the Special Legislation

This issue was the main focus of the memorandum and should be the main focus on appeal despite its obscure position on the PAA’s list. The following discussion is substantially the same as set forth in the memorandum when the order in question was entered, but it is included herein for the convenience of the appellate courts and is somewhat rephrased and expanded.

This case is different from most cases brought by a disappointed low bidder because here the PAA admits that the corporate plaintiff was not only the lowest bidder for the plumbing contract for PNC Park, the new ballpark for the Pittsburgh Pirates Baseball Club, but also that it had been “pre-qualified,” which the court ruled was the same as a “responsible” bidder. For purposes of argument on the instant petition, the PAA also admitted that, were it not for the special legislation, it would have been required, under the pre-existing legislation, to enter into the plumbing contract for the ballpark with the corporate plaintiff.

The case law is replete with discussions of the validity and effect of the pre-existing legislation. There are years of discussions by the appellate courts as to the impact of the pre-existing legislation on entities such as the PAA. The net effect of the appellate decisions on the pre-existing legislation is undisputed by the parties herein: entities such as the PAA are required to solicit separate bids for each major branch of a construction project, i.e., for the plumbing work, the electrical work, the heating work and the ventilation work, and to award the contracts for such work to the lowest responsible bidder. The pre-existing legislation is well-known and well-settled. The court could not, therefore, assume that it would be nullified by vague or ambiguous language.

The pertinent portions of both pieces of the special legislation are as follows: “Notwithstanding any other law to the contrary, the requirements of section 318 of the Act of February 9,1999 (P.L. 1, no.l), known as the Capital Facilities Debt Enabling Act, [and found at 72 P.S. §3919.318], shall provide the sole and exclusive requirements for bidding for the construction or renovation of a redevelopment assistance capital project authorized in a capital budget itemization act on or before [sic] the effective date of this Act. [Section 318 provides] the solicitation of a minimum of three written bids is required for all general contracted work in [such] projects.”

We interpreted the special legislation according to the usual rules of statutory construction, first reading the express language of the statute, and ascertaining its ordinary meaning given the ordinary definitions of words and phrases and the ordinary grammatical implications of the sentence structure used. We concluded that ordinary usage results in there being another, more reasonable interpretation of the special legislation than that espoused by the PAA. In addition, an examination of language that was deleted from the special legislation revealed that the legislature had deleted words that expressly created an exemption. The court concluded that the words that remain in the Act as passed were not intended to create an exemption.

The court’s understanding of the pertinent language of the special legislation is as follows:

“ ‘Bidding’ means only the solicitation of bids; it does not mean the entire bidding process. Regardless of whether or not other laws permit fewer than three bids for general contracted work on government construction projects, the solicitation of a minimum of three written bids is required for all general contracted work in projects such as the PNC Park. The rest of the bidding process is unaffected by this special legislation.”

The PAA’s interpretation of the pertinent language of the special legislation is as follows:

“ ‘Bidding’ means the entire bidding process; it does not mean only the solicitation of bids. The PAA has almost absolute discretion over the entire bidding process for projects such as the ballpark being constructed by the citizens of Pennsylvania for the Pirates. The PAA’s discretion is limited only by one requirement, that it solicit ‘a minimum of three written bids ... for all general contracted work in [such] projects.’ ”

Having accepted for purposes of argument the PAA’s contention that its literal reading of the special legislation is “reasonable,” we then had to try to determine which of the two possible interpretations was correct. Does the word “bidding,” as used in the special legislation, mean solicitation of bids or does it mean the entire bidding process?

We searched the evidence for indications of the legislative intent regarding exemption, looking for legislative history or comments by the proponents and opponents of the legislation prior to its passage. There was little history (none of which is favorable to the PAA’s position, as will be discussed later herein). There were no relevant comments attributable to the legislature available for our consideration. We therefore looked to the language the legislature has used on other occasions when it has decided to exempt certain projects or conduct from the effect of the pre-existing legislation.

A review of other legislation reveals that on the rare occasions when the legislature decided it was wise to give a governmental contracting entity the power to avoid compliance with the pre-existing legislation, i.e., the option not to solicit separate bids and not to contract only with the lowest responsible bidder, it stated this in no uncertain terms.

For example, in recent legislation passed in 1998 regarding the construction of state prisons and the conversion of county jails (Act 1999-37), the legislature included very clear, concise, and simple language stating that those responsible for such projects were to be exempt from the same pre-existing legislation as is at issue here. The legislature added subsection (g) to 16 P.S. §5001, entitled “County commissioners to make contracts.” Subsection (g) permits “an alternative contracting procedure to achieve the adaptive reuse of former jail facilities... [if the commissioners determine by resolution] that the use of an alternative contracting procedure is the most efficient, economical, and timely method to secure an adaptive reuse of former jail facilities.” 16 P.S. §5001(g)(l). The 1998 amendment expressly states, “The award of a contract for the adaptive reuse of former jail facilities need not be awarded to the lowest [responsible] bidder” 16 P.S. §5001(g)(2). (emphasis added) Subsection (g) also expressly states, “Any contract for the adaptive reuse of former jail facilities awarded under this subsection [g] shall be exempt from and not subject to [provisions requiring, inter aha, the solicitation of separate bids for the major branches of consthiction].” 16 P.S. §5001(g)(3). (emphasis added)

The legislature was similarly very clear and explicit in the Prison Facilities Improvement Act, passed in 1990 and found at 61 P.S. §390.503. In that Act, the legislature expressly exempted certain projects from the portion of 53 P.S. §1003 that requires separate bids and awards, saying, “The projects itemized [earlier in the Act] are exempt from the provisions of the first paragraph of [53 P.S. §1003].” The Prison Facilities Improvement Act also expressly gave the Department of General Services the discretion to “contract for construction management services and to develop a procedure providing for incentive payments of contractors for early completion.” 61 P.S. §390.503.

Another example of a clearly stated intention to exempt is found at 72 P.S. §4051, which expressly stated that “limits heretofore imposed [by certain named laws] upon the rates of interest and interest costs permitted to be paid upon bonds ... are hereby removed . . . .” The legislature made what appears to be a fairly comprehensive list of prior Acts whose effect with regard to interest rates was being nullified. (Among the governmental entities whose limits on interest rates and costs were expressly removed were those covered by the Public Auditorium Authorities Law.)

In sharp contrast to these clear and unambiguous expressions of intent to exempt certain public construction projects and public contracting entities from the effect of well-settled restrictions, we have the language of the two pieces of special legislation, quoted in full below, with the pertinent portions italicized:

“(1) Senate Bill 572 of 1999:
“Section 22. Redevelopment assistance capital projects.
“(A) Requirements for.—
“(1) Notwithstanding any other law to the contrary, the requirements of section 318 of the Act of February 9, 1999 (P.L. 1, no. 1), known as the Capital Facilities Debt Enabling Act, [and found at 72 P.S. §3919.318], shall provide the sole and exclusive requirements for bidding for the construction or renovation of a redevelopment assistance capital project authorized in a capital budget itemization act on or before [sic] the effective date of this Act.
“(2) Any public authority shall be eligible to contract with the Commonwealth to receive funds for the construction or renovation of a redevelopment assistance capital project authorized in a capital budget itemization act on or before the effective date of this Act.
“(B) Construction. — Nothing in this section shall be construed to override or abrogate any provision of the Act of March 3,1978 (RL. 6, no. 3), known as the Steel Products Procurement Act.
“(2) 72 P.S. §3919.318:
“Section 3919.318. Funding and.administration of redevelopment assistance capital projects.
“(a) Officers. — The secretary of the budget, in consultation with the secretary of community and economic development, shall approve or disapprove redevelopment assistance capital projects.
“(b) Time period. — State funding for approved redevelopment assistance capital projects shall be paid over not less than a 36-month period unless the secretary of the budget authorizes a shorter period.
“(c) Costs. — Fees for professional services incurred for the design and construction of redevelopment assistance capital projects shall be paid from non-state funds. Land acquisition is a permissible state-funded expenditure if the acquisition cost is supported by an appraisal done by a certified appraiser.
“(d) Proportion. — Expenditure of state and non-state funds shall be made on a proportional basis for direct land and building acquisition costs and construction expenses.
“(e) Verification. — Redevelopment assistance capital project cost estimates must be verified by the office of the budget or its designated agent before final approval is given to a project application. Cost estimates include total project cost, projected use for state and non-state funds and a year-by-year schedule of costs for the entire project construction phase.
“(f) Bids. — The solicitation of a minimum of three written bids is required for all general contracted work in redevelopment assistance capital projects.
“(g) Review and audit. — Redevelopment assistance capital projects shall be reviewed at regular intervals by the office of the budget or its designated agent during the funding phase to ensure financial and program compliance. A final closeout audit shall be performed by the office of the budget or its designated agent for all projects.
“(h) Fee. — To pay for administrative expenses related to redevelopment assistance capital projects funded by Commonwealth general obligation bonds, the office of the budget shall charge a fee against proceeds from bonds and notes which were sold to finance construction or acquisition costs of projects.”

The PA A contends that the word “bidding” in section 22 can only mean the “bidding process,” i.e., both the solicitation of bids and the awarding of a contract to a particular bidder. That supposed definition combined with the language of the introductory phrase, “Notwithstanding any other law to the contrary,” is said to be an unambiguous expression of the intent of the legislature to exempt the PAA’s ballpark project from all of the longstanding and well-settled requirements of the pre-existing legislation. However, by reading the complete text of section 22, regarding the “sole and exclusive requirements for bidding,” we are directed to section 318 (72 PS. §3919.318), which discusses only one aspect of the bidding process, the solicitation of bids, in particular a requirement of a minimum number of bids. Section 318 is silent as to the rest of the bidding process, such as how one of the “three written bids” will be selected for the award of the contract. That silence negates the legislative intent the PAA urges this court to accept as true. “Bidding” in section 22 cannot mean “the bidding process” because section 318 does not refer to the complete bidding process, but only to the solicitation aspect of that process. In other words, the apparent meaning of section 22 and section 318, the special legislation upon which the PAA relies, is that the usual bidding process has been modified to add a requirement that a minimum number of written bids be solicited for “all general contract work” in projects such as the PNC Park. It is undisputed that the usual bidding process is contained in the pre-existing legislation. The special legislation is silent as to there being any exemption from the requirements of the pre-existing legislation, which deals with the complete bidding process.

Since we know, from the examples discussed above, that in the very recent past the legislature has clearly expressed its intention to create an exemption when it has wanted to do so, it is logical to assume that it would also have done so in this case. Almost a quarter-billion dollars is involved in the instant project. The legislature also anticipated redevelopment assistance capital spending of an additional half-billion dollars on other projects. The sections referred to herein as “special legislation” are clearly a part of very important bills regarding very large projects and the funding for them. The legislature’s silence in such an important, expensive, and detailed undertaking as redevelopment assistance capital projects is therefore highly probative of its intention that the preexisting legislation will continue to apply to the PAA and the instant constmction project.

This conclusion is fortified when we see that express words of exemption were deleted from S.B. 572 before passage. Looking to other sources for expressions of the instant legislative intent in the legislative history of the special legislation or in official comments about the special legislation, we find very limited written legislative history, consisting only of an earlier draft of S.B. 572 of 1999. That draft (in the record as a “note of evidence” filed by the PAA) shows that S.B. 572 of 1999 originally included section 20B, quoted below. That deleted section is a much more specific statement of legislative intent as to the entire bidding process. The deleted language is fully set forth below, with the pertinent portion italicized:

“Section 20. Conditions And Limitations On Certain Capital Projects....
“(B) Sports facilities bidding, procurement, etc. — the sole and exclusive requirements for bidding, procurement, preparation of bid specifications and contracting for the construction or renovation of any project contained in sections 6(2)(I)(X) and 6(35)(I)(WW) of the Act of October 10,1997 (P.L. 392, no. 47), known as the Capital Budget Project Itemization Act for 1996-1997, and for the construction or renovation of any facility that receives a grant of Commonwealth funds under chapter 5 of the Act of February 9,1999 (P.L. 1, no. 1), known as the Capital Facilities Debt Enabling Act, shall be those set forth in:
“(1) Section 318 of the Capital Facilities Debt Enabling Act.
“(2) The Act of March 3, 1978 (P.L. 6, no. 3), known as the Steel Products Procurement Act.
“No other law, code or regulation relating to bidding, procurement, preparation of bid specifications or contracting for construction or renovation shall apply.

See note of evidence, submitted by the PAA during the hearing and filed of record.

The PAA contends that the deletion of section 20(B) is of no probative value. However, the words deleted include “requirements for bidding, procurement, preparation of bid specifications and contracting for the construction or renovation of any project.” This is very strong and fairly clear language covering all stages of the bidding process, especially when combined with the other words, also deleted, that say, “No other law [regarding all these stages of the bidding process] shall apply.” The fact that such explicit language was not retained in the final bill strongly suggests that the ambiguous and obscure language in section 22 of S.B. 572 was not intended to exempt the PAA’s ballpark or other projects from compliance with the pre-existing legislation.

The PAA also argued that the legislature’s failure to mention the pre-existing legislation as an exception to the special legislation is an indication of the legislature’s intent that the pre-existing legislation not apply. The PAA says that since the legislature only named one specific prior law that would apply (the Steel Procurement Act), all other laws ordinarily applicable to the PAA’s award of contracts are of no effect for a redevelopment assistance project. However, as the PAA admits, it is well-settled law that repeal must be expressly stated. There can be no repeal of existing legislation by mere implication.

Exemption is a less broad form of repeal and would require similarly clear language. Here, the clearest meaning of the combined language of the special legislation is, as previously stated, “if any other law permits less than three written bids for general contracted work, such law will not apply to redevelopment assistance projects.” The language that was not included in the special legislation is express language of repeal. Had 20(B) remained in S.B. 572, there would be little doubt that the legislature intended to give governmental entities such as the PAA carte blanche with regard to awarding contracts such as the one in question. Were that the case, we would only be looking at the legal significance of the PAA’s midstream change of the rules. The “notice” to bidders as set forth in the July 19, 1999 “Addendum no. 4” (stipulation no. 19, exhibit C to Pleasant Hills’ second amended complaint) would be our sole focus.

However, the language of 20(B) did not remain in the Act that was passed. The note of evidence submitted by the PAA shows what the legislators had available for review when they voted: a proposed law with certain portions, such as 20(B), deleted but legible. Counsel for the PAA tried to argue, dehors the record, that the legislators did not have a marked-up copy of S.B. 572. Aside from the fact that no reliable evidence supports much of what the PAA says regarding the circumstances of S.B. 572’s passage, the question as to what the legislators “knew” is also a question of what they are held to have known. The legislature is deemed to have been aware that express words of repeal or exemption were deleted from and not part of the law they were passing. How then can we conclude, as the PAA contends, that this same legislature intended by implication to do that which they expressly did not do?

All the legislature had to do to express the intent the PAA claims it had was to use the clear and concise language that it has used on other occasions when it wished to exempt projects or entities from the effect of the preexisting legislation. Even the deleted language of section 20(B) would probably have done the trick. However, the fact that the legislature did not use any such explicit language, coupled with the absence of any extrinsic evidence of an intent to exempt the PAA and projects such as the ballpark, leads to only one conclusion: the legislature did not intend to exempt the PAA from the requirements of either the Separations Act or the Public Auditorium Authorities Law.

2. The Court Considered the Ruling of the Other Judge of This Court and Correctly Concluded That It Was Not Binding in the Instant Case

The court has been put in the uncomfortable position of being accused of ignoring or criticizing a colleague’s decision, an accusation that is not founded in fact. In addition, the other judge must feel uncomfortable as well, to have his brief commentary regarding an interlocutory order which was not appealed be given the sacrosanct status the PAA advocated, not only in the courtroom but also in the press.

The undersigned regularly defers to the rulings of other members of this court, especially when the reason for the ruling is either self-evident or clearly stated. However, as previously discussed in the memorandum at p. 4, footnote 2, a review of the opinion in the other case, Reed v. Public Auditorium Auth., Allegheny County docket no. GD 99-12217, Commonwealth Court docket no. 2052 C.D. 1999, appeal discontinued on November 12, 1999, shows that the judge denied a special injunction (i.e., an immediate injunction entered without taking testimony followed by an evidentiary hearing within five days) but granted the request for an evidentiary hearing on whether or not a preliminary injunction should issue pending a final adjudication. One of his stated reasons was indeed that put forth by the PAA, that “the bidding procedures and contract administration methods being utilized by the PAA were authorized by the legislature.” However, this is the sum total of his opinion regarding the special legislation. He did not discuss the basis for his conclusion nor any of the arguments or counter-arguments made to him, so no comparison could be made with those made to the undersigned. Furthermore, the fact that the judge did not dismiss the Reed petition for preliminary injunctive relief suggests that the legal conclusion he reached was a tentative one, justifying denial of an immediate special injunction without a hearing, but not intended to be binding on either plaintiff Reed, instant plaintiffs, nor on the undersigned. This would be analogous to the well-settled rule that a decision regarding a preliminary injunction is not binding for purposes of a final adjudication. See Berger v. West Jefferson Hill School District, 669 A.2d 1084, 1086 (Pa. Commw. 1995).

The jurisprudential reasons for deference or non-deference to the decisions of other judges are well-known. They are summarized in various parts of Standard Pennsylvania Practice, a highly regarded, multi-volume source of information, analysis, and historical perspective regarding all aspects of Pennsylvania law and equity practice. Among the reasons for deference is the doctrine of stare decisis, discussed in sections 2:191-2:195. “[A] test to determine whether the rule of stare decisis will be invoked is whether or not the question involved in the case to be decided was necessarily involved in determining the earlier cases.” 1 Standard Pennsylvania Practice §2:193. This doctrine generally applies to cases where there is prior appellate law. Stare decisis does not apply to decisions of lower court judges of coordinate jurisdiction and does not require deference in this case.

In section 2:197 of Standard Pennsylvania Practice, there is also a discussion of the deference owed by coordinate judges to prior interlocutory rulings in the same case. Even in the same case, an “exception [to the rules and customs favoring deference] also exists where new evidence is placed on the record in the interim between the first trial court’s ruling and the second trial judge’s reassessment. The second judge is authorized to overrule the first judge if new evidence or newly decided legal authorities compel him or her to do so.” 1 Standard Pennsylvania Practice §2:197. (citations omitted) Since the Reed opinion was written without any evidence having been submitted, it would have had little precedential value even in the same case.

Given these well-settled principles, it is disingenuous of the PAA to raise our refusal to defer to the tentative ruling in Reed as a basis for its appeal in the instant case.

3. The Taxpayer Was Not “Estopped” From Asserting His Present Claims

Since the PAA does not, in either of its statements, elaborate on what kind of “estoppel” it refers to, nor does it state what evidence supposedly gives rise to such estoppel, the court is forced to guess what this basis for appeal is. The word “estoppel” was used by counsel for the PAA during oral argument, but in the context of the bar of the doctrine of laches. It is this doctrine the court believes the PAA has in mind. Another possible meaning suggested by the PAA’s oral argument is that plaintiffs’ notice of the change in bidding procedure coupled with the fact that the corporate plaintiff nevertheless submitted a bid after notice, “estops” plaintiffs from now complaining about the illegality of the altered procedure. These are the only two references to “estoppel” that the court is aware of. The court concluded that neither laches nor notice barred the instant complaint and the ancillary motion for preliminary injunction. If the PAA intends a third meaning by this item, it is respectfully suggested that waiver applies.

The factual basis upon which the court found that laches did not apply is found in the transcript of the hearing and argument at pp. 22 to 26, where counsel for plaintiffs explained the reasons for the delay that the PAA asserted constituted laches or an estoppel. Briefly summarized, plaintiffs expected to join in the evidentiary hearing scheduled in Reed; that hearing was postponed because of the pending appeal in Reed (later discontinued) and a hearing on the petition in the instant case was then separately scheduled; eventually, the matter was heard by the undersigned.

The maximum period of delay asserted by the PAA begins no earlier than July 19, 1999, the day the PAA says it gave plaintiffs and others notice that it would not comply with the pre-existing legislation, and ends no later than September 17, 1999, the day plaintiffs filed their instant motion for preliminary injunction. Plaintiffs assert the earliest starting date for laches is sometime after August 16,1999, the date that the PAA awarded the contract to Limbach at a public meeting, and the first time that plaintiffs were put on notice that a higher bid than theirs may have been accepted, in violation of the preexisting legislation. The delays after September 17,1999 were unavoidable, were caused by the civil division’s central calendar system, and are not attributable to plaintiffs.

In order for a delay to bar relief, there must be some prejudice to the party asserting laches. In the instant case, whether the delay was two months or one month, there was no prejudice to the PAA as a result of the delay. Laches does not bar the relief actually granted. At best, the delay might bar the nullification of the Limbach contract, relief that was denied.

As to the PAA’s other “estoppel” argument, it seems clear that justice does not permit a wrongdoer to escape the consequences of his illegal conduct merely by first informing the victim of his intent to commit the illegal act in question.

4. The Taxpayer Has Standing To Bring This Suit

The court relied on long-standing precedent for its conclusion that the taxpayer has standing in equity to seek equitable relief, especially the relief actually granted by the order in question. See e.g., Wm. Penn Parking Garage Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975) and its progeny, especially Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979); Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988); City Council of the City of Pittsburgh v. City of Pittsburgh, 155 Pa. Commw. 328, 625 A.2d 138 (1993), upholding this court’s decision at GD 93-1220; and Rizzo v. City of Philadelphia, 668 A.2d 236 (Pa. Commw. 1995). The Supreme Court in Biester, supra, reiterated the law regarding a taxpayer’s standing to sue a governmental entity:

“The purpose of the requirement of standing is to protect against improper plaintiffs. [Citing] K. Davis, Administrative Law Text §22.04 (3d ed. 1972). A plaintiff, to meet that requirement, must allege and prove an interest in the outcome of the suit which surpasses ‘the common interest of all citizens in procuring obedience to the law.’ ... To surpass the common interest, the interest is required to be, at least, substantial, direct, and immediate. [Citing] Wm. Penn, supra.” Biester at 442-43, 409 A.2d at 851.

More recently, the Commonwealth Court unequivocally confirmed that well-settled law gives the instant taxpayer standing to seek protection from illegal or unconstitutional invasions of the public fisc.

In C. O. Falter Construction Co. v. Towanda Municipal Authority, 149 Pa. Commw. 74, 614 A.2d 328 (1992), the Commonwealth Court discussed suits by taxpayers and disappointed bidders on public contracts.

“In Pennsylvania, a taxpayer of a contracting jurisdiction who is also a disappointed bidder has standing to enjoin the award of a public contract.... However, the action is that of the taxpayer, not of the disappointed bidder.... A disappointed bidder who is not a taxpayer in the contracting jurisdiction does not have standing to challenge the award of a public contract.” 149 Pa. Commw. at 77, 614 A.2d at 330. (citations omitted)

In other words, the crucial element for taxpayer standing appears to be an interest beyond that of every taxpayer in any expenditure of money or other conduct by a governmental entity. Here, the taxpayer who also is a shareholder of the corporate plaintiff has suffered special harm in addition to that suffered generally by all taxpayers of the state and county because of the PAA’s illegal conduct. As a result, he has standing to ask the court for relief. Appropriate relief includes enjoining the continuation of such conduct.

5. The Court Awarded Relief Consistent With the Request of the Taxpayer, the Only Successful Plaintiff

There is no merit to the PAA’s contention that there was “an error of law in awarding preliminary injunctive relief in a manner never requested by plaintiffs.” It is axiomatic that the court, particularly when sitting in equity, is not limited by a party’s specific requests for relief. In the instant case, furthermore, both plaintiffs requested, inter alia, “such other equitable relief as is just and appropriate under the circumstances.” Under the instant circumstances, the prospective preliminary injunction issued in favor of only one plaintiff, the taxpayer, was “just and appropriate,” as plaintiffs requested, even though both plaintiffs had hoped for more.

6. The PAA Had an Opportunity To Be Heard; It Is Irrelevant to Its Appeal Whether Other Parties Had Such an Opportunity

The PAA does not complain that it was denied an opportunity to be heard; rather, it claims other parties were not heard. It is elementary that the PAA does not have standing to complain that its co-defendants were not given an opportunity to be heard. Even though counsel for the PAA also represents the Pirates, his other client has not joined in the instant appeal. Furthermore, neither the Pirates nor the other co-defendants have raised this issue themselves by way of a motion to this court for reconsideration or for a hearing, nor by any other means. They are the only parties entitled to complain of any denial of their due process rights. Their failure to ask to be heard is deemed to mean that their rights were not violated by the order in question, as is their failure to appeal that order. Their silence is unsurprising since they are not “indispensable parties” in equity, but merely are “necessary” parties whose joinder was required for jurisdictional purposes so that they could be heard if they chose.

7. The Injunctive Relief Granted Was Granted Only to the Taxpayer Plaintiff Who Established All the Elements Necessary for Such Relief

In its statements, the PAA says that the “plaintiffs” (plural) did not make out their case. However, the court did not rule in favor of both plaintiffs, only in favor of the taxpayer. The corporate plaintiff only established some of “the elements necessary for an award of [preliminary] injunctive relief’ and so no award in its favor was made. In other words, the PAA “won” as to the corporate plaintiff.

The taxpayer, on the other hand, was able to establish “all the elements necessary for an award of [preliminary] injunctive relief’ and the relief he was granted was therefore proper.

The three essential prerequisites for the issuance of a prehminary injunction were set forth in New Castle Orthopedic Assoc. v. Burns, 481 Pa. 460, 392 A.2d 1383 (1978). Those prerequisites are, first, that the preliminary injunction be necessary to prevent immediate and irreparable harm not compensable by damages, second, that it would be more injurious to refuse than to grant it, and third, that it restore the parties to their status as it was immediately prior to the alleged wrongful conduct. 481 Pa. at 464, 392 A.2d at 1385. A fourth requirement is whether, when the issue is finally resolved, the petitioner will prevail on the merits, i.e., whether he has a clear right to [final] relief. See American Federation of State, County and Municipal Employees v. Commonwealth, 77 Pa. Commw. 37, 465 A.2d 62 (1983). During oral argument, the PAA described a fifth requirement, “that the alleged wrong be manifest,” which the court believes is subsumed under the fourth, and discusses accordingly.

The PAA in its statements specifically refers to only one of these elements as not having been satisfied: whether or not the taxpayer will prevail on the merits, i.e., the interpretation of the special legislation, which is discussed in item 1, above. As to the other elements, the fact that they have been met seems self-evident, but each is briefly discussed below.

(a) The Taxpayer Would Suffer “Irreparable Harm” Without the Preliminary Injunction

The requirement that there be “irreparable harm” is made out by the undisputed violation of the pre-existing legislation. “[W]here the right invaded is secured by statute or contract, there is generally no question of the amount of damage, but simply of the right.” Pennsylvania Public Utility Commission v. Israel, 356 Pa. 400, 52 A.2d 317 (1947), quoting Commonwealth v. Pittsburgh & Connellsville Railroad Co., 24 Pa. 159, 160 (1854). (emphasis added)

Given the limited prospective preliminary relief that was granted to the taxpayer, any further “balancing” of relative harm by the court would have infringed on the legislature’s prior balancing of public and private interests when it passed the pre-existing legislation (which, as already discussed, still applies to redevelopment assistance capital projects undertaken by entities such as defendant PAA).

(b) More Harm Would Have Resulted From Denying the Preliminary Relief in Question Than From Granting It

The requirement that more harm would result from denying relief than granting it must be evaluated in light of the relief actually granted. As set forth on page 12 of the memorandum, it was too late to provide the corporate plaintiff with preliminary relief in equity, because a balancing of the harm it had already suffered against the future harm an injunction would cause the taxpayer, and Limbach showed that more monetary harm would result from the grant of the preliminary injunction in favor of the corporate plaintiff than from its denial. Had the court nullified the existing contract, Limbach (who on the evidence so far is apparently not a wrongdoer) would then have been entitled to money damages from the PAA for its lost profits. The taxpayer would have to pay for the PAA’s breach with Limbach or it would have to pay for the breach with the instant corporate plaintiff. These items cancel each other out, more or less. However, the court accepted as true, for purposes of argument, the PAA’s allegation that there would be, in addition, very high costs incurred from inevitable delay if the court nullified Limbach’s contract. This was the extra harm that would have resulted if the corporate plaintiff had been granted the injunctive relief it wanted. Therefore, the corporate plaintiff did not prevail because more.harm, not less, would have been created by annulling the contract with Limbach, the relief sought by the corporate plaintiff.

However, the harm suffered by the taxpayer comes from the PAA’s violation of legislation, so the ban on continued violations in the future in connection with the awarding of future contracts by the PAA in connection with its projects was, on balance, both proper and necessary.

(c) The Injunction Restored the Status Quo

The status quo ante the PAA’s wrongful conduct was restored as much as possible by the preliminary injunction, which requires the PAA and its successors not to violate the pre-existing legislation in the future. The PAA had the duty to honor the pre-existing legislation before it awarded the plumbing contract in question, and the court order “restored” that duty with regard to contracts entered into by the PAA after the date of the order. The court could have restored more of the status quo ante the wrongful conduct only by annulling the PAA’s contract with Limbach, action that the PAA successfully opposed.

8. Nominal Bond Is Sufficient and Within a Court’s Discretion Where the Preliminary Injunction Is in Favor of a Taxpayer and Against a Government Entity

With regard to the amount of bond set for the injunction received by the taxpayer, the nominal sum of $ 1, we were guided by the principle enunciated by Commonwealth Court, coincidentally in another case where statutory bidding requirements applicable to contracts under the Municipal Waste Planning Act were violated by a governmental entity. See Stapleton v. Berks County, 140 Pa. Commw. 523, 593 A.2d 1323 (1991), allocatur denied, 529 Pa. 660, 604 A.2d 251 (1992), in which Commonwealth Court granted the plaintiff taxpayer relief after the trial court had denied him a preliminary injunction. The Commonwealth Court held that, in a “taxpayer’s suit which alleges that the irregularities in the process defeated the safeguards that competitive bidding was designed to insure,... the threat to the public fisc ... was real.” Id. at 542, 593 A.2d at 1332. The Stapleton court then held “that the contract must be annulled and new bids submitted.” 140 Pa. Commw. at 542, 593 A.2d at 1332.

The Commonwealth Court expressly declined to impose any security requirement upon the taxpayer for the issuance of its preliminary injunction in Stapleton, even though the relief granted to that taxpayer (nullification) was more extreme than that ordered here. The county and the previously successful bidders whose contracts Stapleton annulled had asked the court to require a bond of $34,000,000 before its preliminary injunction would be effective, an amount comparable to that requested by the PAA in the instant case, and for reasons similar to those expressed by the PAA.

Reasons of public policy controlled the Commonwealth Court’s decision not to require any bond at all in Stapleton: “to order that such security [$34,000,000] be filed in this case ... would impose such a financial burden on taxpayers that it would discourage such actions.” 140 Pa. Commw. at 542 n.17, 593 A.2d at 1332 n.17.

The Supreme Court denied allocatur, thereby recognizing, sub silentio, that a court has the discretion to require no bond where a taxpayer has an action against a governmental entity.

This is consistent with the long-standing rule in this country, and in Pennsylvania, that our courts are open to all, regardless of wealth. Taxpayers in particular must not be denied access to equitable relief against governmental entities by bond requirements that are insurmountable and which would only be appropriate where disputes strictly among citizens are involved. This is almost axiomatic and is rarely raised at all in appeals involving taxpayers’ rights. The paucity of case law (the Stapleton footnote was all this court could find and the PAA has alluded to none) indicates how basic and largely undisputed the issue is.

The nominal bond imposed in the instant case was proper, especially where no existing contract was annulled and only prospective contracts were affected by the preliminary injunction.

CONCLUSION

The limited language of the special legislation referring only to one part of the entire bidding process, the requirement of three written bids, does not provide an exemption from the pre-existing legislation which governs the entire bidding process. Furthermore, on the rare occasions when similar exemptions were intended by the legislature, very clear and explicit language was used. In this case, the “note of evidence” filed by the PAA shows that stronger language which expressly referred to all phases of the bidding process was deleted from the Act prior to passage, further support for the finding that the legislature had an actual intent not to exempt the PAA from the bidding requirements set forth in the pre-existing legislation.

At the full trial of the instant matter, to which the parties are entitled after the pleadings are closed, the PAA will have ample opportunity to present more evidence, if any exists, in support of its contention. Right now, all the PAA has done, at best, is to raise the suspicion that the special legislation is really stealth legislation, possibly intended by some of its drafters to have a concealed exemptive effect, but highly unlikely to have been regarded by those who read it and voted on it as exempting multi-million dollar projects from the well-settled rules that would ordinarily safeguard the process of soliciting and awarding public contracts.

      . The reasons for not annulling the contract with Limbach were (1) that it would increase the harm to the public fisc (and, therefore, to (he taxpayer) to delay the project; (2) that those responsible for the excessively costly plumbing contract with Limbach could be surcharged by the appropriate auditors (thereby providing the taxpayer with an adequate remedy at law for the PAA’s past violations of the pre-existing legislation); and (3) that the prospective injunction to prevent the PAA from continuing its illegal disregard of the legislation at issue was sufficient preliminary relief to protect the taxpayer pending a final adjudication.

      . The PAA expressly objected to the court’s asking for a statement based on the PAA’s belief that an “opinion,” presumably the supporting memorandum that accompanied the order, had already been filed. However, this court routinely drafts memoranda to explain any order whose rationale is not self-evident, in order to give counsel for the parties an idea of why the court ruled as it did. Opinions are then written based on the matters appellants state they wish to raise on appeal.

      . This ruling, reiterated in the memorandum, at p. 2, is not one of the stated bases for appeal.

      . This admission was also previously referred to in the memorandum, at p. 2. Its existence and effect have not been contested in the PAA’s statements.

      . The full text of the special legislation is set forth later in this portion of the opinion, beginning on page 455. The full text of the preexisting legislation is not quoted herein but is found at 53 P.S. §1003 and 16 P.S. §5517 (the Separations Act) and 53 P.S. §23851 (lowest responsible bidder requirement).

      . There are apparently no legislative comments on the special legislation. The PAA argued that we could find the legislative history and intent in the affidavit of K. Scott Baker, a “government affairs consultant,” i.e., a lobbyist for an unnamed entity. However, Mr. Baker’s affidavit, while replete with legal conclusions, is devoid of any facts from which such conclusions could be drawn. He gives no factual basis for his knowledge of the events surrounding the passage of the legislation; he gives no facts regarding the events themselves; he gives no information about his own background or experience. This totally insufficient offer cannot be accepted as probative of the legislative intent regarding the special legislation. There is no precedent for this bootstrap method of statutory construction.

      . Stare decisis is a Latin term meaning, roughly, “that which has been decided, stands.” It refers to the need for courts “to abide by, or adhere to, decided cases.” Cf. Black’s Law Dictionary.

      . The court was informed of this dual representation during a status conference and cautioned the PAA’s in-house counsel and its trial counsel to evaluate whether there was or was not a potential for conflict, given the nature of the contractual relationship between the PAA and the Pirates. The matter was raised again, by the court, sua sponte, before the start of the instant hearing. After discussions with counsel for the PAA, the court concluded that, at a minimum, the Pirates could be said to have waived any conflict even though the PAA, given its duties to the public, might not be permitted to waive a conflict.

      . The main holding in Stapleton is based on American Totalisator v. Seligman, 489 Pa. 568, 414 A.2d 1037 (1980), a case with bidding procedures that seem very close to those used in the instant case by the PAA. The Supreme Court said, “When competitive bidding is used and the procedures followed emasculate the benefits of such bidding, we believe judicial intervention is proper.” 140 Pa. Commw. at 538, 593 A.2d at 1330. Furthermore, as discussed in Stapleton, supra at 533, 593 A.2d at 1328, “the law prefers competitive bidding of public contracts,” a long-standing principle of Pennsylvania law, set forth first in Harris v. Philadelphia, 283 Pa. 496, 129 A. 460 (1925). Commonwealth Court then points out that “[pjrivate meetings and negotiations with some bidders to the exclusion of others before the contract is awarded is precisely the sort of favoritism and unfair advantage that Harris and its progeny disdained.” Stapleton, supra at 540, 593 A.2d at 1331.


source: Caselaw Access Project

author: BERNSTEIN, J.,

license: Public Domain

text:
    Thomas v. West Bend Company Inc.

      Joseph L. Messa, Jr., for plaintiff.

      Basil A. DiSipio, for defendant West Bend Co.

      Richard M. Donaldson, Patricia Larson, Larry L.

      Turner and Cynthia M. Binnon, for defendant G J. Rossi & Son.

      Pamela A. Carson, for defendant Irwin H. English Co.
    February 17, 2000
   BERNSTEIN, J.,

Plaintiff’s complaint alleges that on April 1, 1993 he received a severe low voltage electrical shock injury while plugging a West Bend Two Com Popper into a receptacle. Plaintiff alleges claims against various defendants in negligence and products liability. In response to expert interrogatories, plaintiff submitted a report of Dr. Nicholas L. DePace.

I. THE EXPERT

Dr. DePace is a medical doctor specializing in cardiology. He has been board certified in cardiology for 15 years and in internal medicine for 17 years. He is a Fellow of the American College of Cardiology, a Fellow of the American College of Chest Physicians, and a member of the Pennsylvania Medical Society, the American Medical Association and the New York Academy of Sciences. He is affiliated with numerous hospitals in the Philadelphia area including the Graduate Hospital where he is chief of the division of preventive cardiology. He is also a clinical professor of medicine at the Medical College of Pennsylvania and an assistant professor of medicine at Jefferson University. He is the author of 23 abstracts and 65 publications in the medical literature dating back to 1980. He is the co-author of chapters in five textbooks. Dr. DePace’s work is limited to his cardiology specialty. There is no challenge presented to Dr. DePace’s qualifications to offer expert opinion testimony in the field of cardiology. He is extremely qualified.

At the request of plaintiff’s counsel, Dr. DePace reviewed the medical records of plaintiff Otis Thomas. He found that plaintiff is a 24-year-old black male with no significant cardiac history prior to sustaining an electric shock. Dr. DePace noted that on the date of this shock and on the day following, the plaintiff sought medical attention complaining of abdominal pain, constitutional symptoms, severe pain in his left arm and shoulder and swelling of the left hand. Four days after the incident, the plaintiff was seen at Temple University where a diagnosis of cephalalgia was made and visual complaints noted. The plaintiff was admitted to Temple Hospital on August 8, 1993, where it was noted that he had severe cardiomyopathy. Three months later he was admitted to St. Joseph’s Hospital because of shortness of breath, chest pain, palpitations, and epigastric pain.

II. THE OPINION

Dr. DePace’s opinion, offered to a reasonable degree of medical certainty, is that the electrical injury sustained by plaintiff was the “only possible etiology for this patient’s rather acute development of cardiomyopathy following the accident.” Dr. DePace’s opinion is that the plaintiff experienced an electrical current injury to his heart resulting in myocardial necrosis with myocardial contusion and resultant congestive heart failure. In Dr. DePace’s opinion these conditions have required recurrent hospitalizations, presently require that the plaintiff take cardiac medication, and will require a heart transplant.

III. THE MOTION

Well in advance of trial, defendant West Bend Company sought in limine to preclude plaintiff from introducing Dr. DePace’s expert opinion testimony causally connecting plaintiff’s heart condition to the April 1,1993 accident. Defendant relied upon Frye v. United States, 54 App.D.C. 46, 293 E 1013 (D.C. Cir. 1923) as adopted by the Pennsylvania Supreme Court in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). Pursuant to this motion the court took live testimony, received affidavits and directed that depositions be taken.

IV. THE SCIENCE

Defendant challenges, as without consensus support in the relevant scientific and medical communities, the proposition that low voltage electric shock can cause dilated cardiomyopathy. All parties agree that plaintiff Otis Thomas sustained a “low voltage electric shock” in the accident and all parties agree that plaintiff Otis Thomas is presently suffering from “dilated cardiomyopathy.”

In formulating his conclusion, Dr. DePace examined the plaintiff, reviewed the plaintiff’s medical records and reviewed the medical literature. None of the medical literature identify low voltage electrical shock as a cause of dilated cardiomyopathy.

Dr. DePace testified that although there are numerous reports of electricity causing cardiomyopathic processes, he knew of only two specific articles which imply that low voltage electrical shock can cause a clinical picture which is not identified as cardiomyopathy in the articles but which Dr. DePace classifies as “dilated cardiomyopathy.”

Dr. DePace agrees that the diagnosis of “idiopathic dilated cardiomyopathy” is accepted in the medical profession. In those cases, there is no known etiology associated with the clinical presentation of cardiomyopathy. Dr. DePace farther agrees that other causes for dilated cardiomyopathy include alcohol, drugs, vitamin deficiencies, viruses, chemicals, toxins, and lead exposure. Dr. DePace is aware of no animal studies relevant to the question of whether low voltage electrical shock can cause dilated cardiomyopathy. He is aware of no epidemiologic study on this phenomena. He can present no theory of the mechanism by which this injury is sustained from low voltage electric shock. Despite having treated approximately 1,000 patients with cardiomyopathy in his 20 years of clinical practice, Mr. Thomas is the first patient that he has ever diagnosed with dilated cardiomyopathy caused by low voltage electrical shock.

Dr. DePace is presently working with Dr. Bruno and Dr. Elbaum on a draft manuscript for publication in the medical literature to present his conclusion that low voltage electrical shock is a previously unidentified cause of dilated cardiomyopathy. At page 10 of that draft article, Dr. DePace’s conclusion concerning the plaintiff in this case is identified as a “newly described” etiology. Not yet submitted to any journal for review or publication, his draft article, if published and accepted in the relevant medical community, will advance medical knowledge.

V. NEW SCIENTIFIC EVIDENCE: DAUBERT AND FRYE

Since federal court standards for expert testimony were announced in Daubert v. Merrell Dow Pharmaceuticals Inc. the scientific validity of expert testimony has become a significant focus of federal court litigation. This activity is reflected in a tremendous increase in the number of motions to preclude expert testimony presented in this state court. The adoption of the Pennsylvania Rules of Evidence, which parallel the critical rales on which the United States Supreme Court relied in adopting the Daubert standard, has further heightened interest and uncertainty in Pennsylvania in this critical area. Supreme and Superior Court decisions and the notes to those very rules, make clear that the evidence code did not change the law of Pennsylvania in this regard. Nonetheless, this remains a troubling area of the law. Accordingly, it is incumbent in this opinion to clearly and fully explicate this court’s understanding of the law of Pennsylvania. Only thereby can an appellate court determine whether the law was properly understood and applied.

The seminal case for this discussion is, of course, Frye v. United States, setting forth the criteria for the admissibility of new scientific evidence. Frye itself set forth standards for admissibility of a new “scientific” test that purported to evaluate credibility, the “lie-detector test.” Although Frye was concerned only with a “lie-detector test,” the archetypical “black box” that miraculously provides the true answer through the magic of modem science, the principles adopted in Frye have been applied across the entire spectrum of expert testimony.

The Frye test was adopted in Pennsylvania in 1977 in the case of Commonwealth v. Topa, another “black box” technology ruling, holding that spectrograms and opinion evidence about spectrography which produces “voice prints” was inadmissible. The Supreme Court next applied the Frye test in Commonwealth v. Nazarovitch, precluding evidence based upon the new “scientific technique” of hypnotically refreshed testimony, holding that the reliability of the technique had not been established. In Commonwealth v. Dunkle the Supreme Court first precluded evidence grounded in a new scientific theory. In Dunkle, the court stated that testimony based upon the theory of “child sexual abuse syndrome” was inadmissible because the very concept that such a syndrome existed had not been generally accepted in the field of psychology. Applying Frye in Commonwealth v. Zook, the Supreme Court permitted testimony based on electrophoresis analysis of the enzymes in dried blood stains, finding that the technique had achieved general acceptance in the field of forensic serology.

The application of the Frye standard in Pennsylvania to new scientific evidence was explicated by the Supreme Court in Commonwealth v. Crews.

“When scientific advances produce new types of evidence, admissibility of such evidence depends on the test first laid down in Frye v. United States.” (citation omitted)
“Just when a scientific principle or discovery crosses the line between the experimental or demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belongs.”

In Crews, the Supreme Court upheld the lower court ruling permitting testimony based upon the result of DNA testing. Nonetheless, the Supreme Court drew a fine scientific distinction in what was admissible. The court held that opinion evidence specific statistical conclusions were inadmissible. The court said: the conclusion to be drawn from the statistical information accumulated to date regarding DNA matches had not achieved widespread acceptance within the scientific community and therefore is inadmissible in evidence. In Crews, the expert opinion was permitted that the match of three out of four loci made it “more probable than not that the sperm was that of the defendant.” Id. at 523, 640 A.2d at 402. The expert was precluded from presenting an opinion to any greater precision. The court in Crews held that Frye determinations are essentially case-specific to be determined on appeal by the record created below. The court did not rule that statistical analysis of DNA evidence could never be admissible. The court said: “We hold merely that the record compiled in this case does not include evidence sufficient to satisfy Frye, though an exhaustive Frye hearing might reach a different result.”

In Crews, the Supreme Court also responded to the United States Supreme Court ruling in Daubert. The court noted that Daubert relaxed the admissibility of novel scientific evidence by interpreting and applying the Federal Rules of Evidence which are, of course, not applicable in Pennsylvania. In a much quoted footnote, the Supreme Court said: “Whether or not the rationale of Daubert will supersede or modify the Frye test in Pennsylvania is.left to another day.” Since that day has not yet arrived, the decision in this case is controlled by the stricter Pennsylvania law of Frye.

VI. THE HOOPS

Likewise, the intermediate appellate courts have been asked to hold that Daubert considerations can overcome the consensus requirement of Frye. Both the Commonwealth Court and the Superior Court have definitively ruled that consensus of opinion in the relevant scientific community is required for the admissibility of novel expert opinion evidence in Pennsylvania.

The intermediate appellate courts first addressed Frye in the context of Daubert in McKenzie v. Westinghouse Electric Corp. Plaintiff McKenzie’s daughter was diagnosed with ventricular septal defect at birth. The plaintiffs alleged that contaminants in the water, TCE and DCE, caused the birth defect that eventually led to the child’s death. Expert testimony by three respected scientists who relied upon medical literature linking these contaminants to cardiac defects was excluded by the trial court, and the panel of Commonwealth Court judges affirmed. On appeal, the McKenzies did not claim that the proposition that these contaminants are human teratogen was generally accepted in the teratological community. The plaintiffs argued that it was sufficient to demonstrate that the methodologies employed in scientific studies which found a causative connection, were generally accepted by the relevant scientific community. Citing several published animal and epidemiological studies incorporating methodologies that were generally accepted in the scientific community, the McKenzies claimed that the law of Pennsylvania permitted opinion testimony based thereon. The Commonwealth Court clearly found otherwise:

“[I]n order for scientific testimony indicating that an event causes a particular result to be admitted, there must be a showing, not that the studies establishing the causal relationship follow generally accepted methodologies, but that the existence of the causal relationship is generally accepted by the relevant medical community.”

Lest this holding be misunderstood, in conclusion, the court repeated:

“In light of the numerous cases applying the Frye test, the relevant inquiry in the present case is whether the scientific principle forming the basis for Dr. Goldberg’s opinion has gained general acceptance in the field of teratology; it is not whether the methodologies employed in Dr. Goldberg’s studies are scientifically valid.”

Since the McKenzies “offered no evidence to establish that the conclusions from those studies are generally accepted in the teratological community, the specific medical field to which they belong,” the testimony was not permitted. Thus, according to McKenzie, the scientific conclusion, the opinion itself, must meet the Frye test to be admissible.

Appellate courts next addressed this question in the case of Blum v. Merrell Dow Pharmaceuticals Inc. The Superior Court applied a dual analysis. The Superior Court found two ways to analyze the question of whether the causation testimony proffered met the Frye/Topa standard. The first focused on whether the causal relationship had achieved general acceptance, the traditional Frye test. The second focused “on whether the methodology is generally accepted by the scientific community,” a Daubert-type evaluation. The Superior Court ruled that both criteria must be met for admissibility in Pennsylvania. The Superior Court referred to these criteria as hoops superimposed upon the long-standing requirement of Dambacher by Dambacher v. Mallis that “[a]n expert witness is qualified to offer an opinion if [the expert] has sufficient skill, knowledge, or experience in a field or calling as to make it appear that the opinion or inference will probably aid the trier of fact in its search for truth.” The Superior Court ruled that the “gatekeeper” role of the trial judge in Pennsylvania requires both a Frye analysis and a Daubert analysis be met for admissibility of novel expert opinion evidence. Thus, the decision in Blum may have made Pennsylvania the most restrictive jurisdiction in the nation, requiring both Frye and Daubert standards be met as separate tests before opinion evidence based upon new science could be admissible in evidence.

This dual test was ameliorated by the Superior Court in 1998 in the matter of Checchio v. Frankford Hospital-Torresdale Division. In Checchio, the plaintiff presented expert witnesses who testified that the plaintiff minor child’s developmental disorders, including autism and mental retardation, were due to a lack of oxygen and blood flow to the brain at birth. Based on the scientifically accepted proposition that the lack of oxygen and blood flow to the brain can cause neurological damage, the experts grounded their opinions on the “clinical” conclusion that this damage “may manifest itself in severe mental retardation, developmental delay, and autistic[-]like behavior....” Both experts, Leon L. Charash M.D., a pediatric neurologist, and Ralph J. Wynn M.D., a neonatolist, relied solely upon their extensive knowledge, experience, and clinical judgments. They specifically denied reliance on any “documented scientific authority for the proposition that impairments of the type from which Daniel suffers are caused by perinatal hypoxia.” No challenge was presented to their qualifications to formulate opinions or to the reasonableness of acting upon their opinions in providing medical care based upon their clinical opinions. The defense challenged this testimony as new medical conclusions. The trial court in Checchio performed the Blum dual analysis and found that the proposed expert testimony failed to meet either the Frye or Daubert test. The Superior Court rejected the dual analysis:

“In Blum v. Merrell Dow Pharmaceuticals, . . . this court, following Topa, ruled that the analysis to be applied in answering the question of whether the Frye/Topa admissibility criterion had been met was two pronged: acceptance in the scientific community of first the causal, and then the methodological relationship alleged.”
The court affirmed the trial court preclusion order, but gave specific and clear instruction to trial courts saying:
“However, despite acknowledging the prevalence of the Frye test, the [trial] court applied the standards set forth in Daubert v. Merrell Dow Pharmaceuticals Inc. ... as less stringent. There the United [States] Supreme Court abandoned the use of Frye in the federal system, positing instead Federal Rule of Evidence 702. While such an analysis is incorrect under current Pennsylvania law, as the court points out a witness who fails to meet the requirements of Daubert necessarily fails the more restrictive Frye standard as well. Therefore, while we find the trial court’s reliance on Daubert to be in error, for the reasons that follow we find its substantive conclusions as to the admissibility of appellant’s expert testimony to be correct.”

The Superior Court found that since the expert testimony: “scrupulously avoided the medical literature and was based entirely on subjective assessments of both cause and effect” the evidence was “too inherently unreliable to be presented to the jury.”

Most recently, in Commonwealth v. Blasioli, 552 Pa. 149, 713 A.2d 1117 (1998), the Supreme Court was asked to determine whether evidence of statistical probabilities calculated using the product rule is admissible in a criminal case to assist the trier of fact in assessing the probative significance of a DNA match. Ruling that the product rule in DNA forensic analysis is generally accepted in the relevant scientific communities and is not the type of novel scientific evidence to which Pennsylvania courts apply the Frye test, the Supreme Court affirmed the trial court ruling admitting the evidence. The Supreme Court reaffirmed that the Frye test applied only to novel scientific evidence and held: “In determining whether novel scientific evidence is admissible in criminal trials, . . . such evidence must have gained general acceptance in the relevant scientific community.” In discussion, the court clearly and unambiguously required that first, the relevant scientific communities be determined, and second, that general consensus or general acceptance in those scientific communities must be demonstrated. Defining consensus, the Supreme Court said: “While we ate cognizant of the fact that unanimity among scientists does not exist, unanimity is not required for general acceptance.”

Thus, the cases interpreting Frye in light of the “Daubert” distraction lead directly to several conclusions. First, that the Frye test applies only to novel scientific theories; second, that general consensus, not unanimity, in the relevant scientific or medical community is required for admissibility; and third, that since Daubert is not the law of Pennsylvania, a Daubert-type analysis is permissible only insofar as it is relevant to the question of scientific “Frye” consensus. Finally, the purpose of the “Frye ” rule is to insure that the jury receives only opinion testimony that will assist in the determination of factual questions. Finally, it is the court’s responsibility to insure that the quality of this opinion will assist the jury and not mislead them.

Vn. THE MEDICAL MALPRACTICE EXCEPTIONS TO FRYE: I. INCREASED RISK OF HARM

In one recent case, novel opinion evidence was accepted, based exclusively on clinical judgment. That case involved the lesser evidentiary standard of “increased risk of harm.” In Smith v. Grabb, President Judge Cirillo held admissible expert opinion testimony on “increased risk of harm,” despite the complete absence of supporting literature. Judge Cirillo wrote:

“Dr. Singer’s failure to cite an article or text on point goes to the weight of his testimony, not its admissibility. The basis of Dr. Singer’s testimony was his knowledge, education, reading and experience of 25 years as a practicing oncologist. Based upon such experience, he was able to offer an opinion that the delay in Mrs. Smith’s diagnosis increased her risk of a shortened life expectancy. See Joyce, 694 A.2d at 656 (this court determined that it was not necessary to have an expert doctor cite to treatises and medical periodicals to support his articulation of the standard of care; his 30 years in the field of orthopedic medicine was sufficient to support an opinion regarding the relevant standard of care).”

The court noted that by their very nature, cases in which the claim is that a failure to diagnose and treat a patient’s condition caused injury, elude the degree of certainty one would prefer and upon which the law normally insists. In reversing a nonsuit and remanding the ease for trial, the Superior Court said:

“[W]e note that the court’s role in the instant case was merely to establish whether there was testimony presented that the failure to detect Mrs. Smith’s cancer in a timely fashion increased the risk that she suffered harm, i.e., a shortened life expectancy.”

Once expert opinion evidence of increased risk of harm is offered, it is the function of the jury, not the medical expert or the court, to balance probabilities and decide whether the appellee’s negligence was a substantial factor in bringing about harm.

Novel medical opinion that a failure to diagnose created an increased risk of harm, however, does not require the same consensus scrutiny for admissibility. Such opinion is admissible based on clinical judgment alone, without reference to any supporting literature. Such opinion is controlled only by Dambacher by Dambacher v. Mallis.

VIII. THE MEDICAL MALPRACTICE EXCEPTIONS TO FRYE: II. TWO SCHOOLS OF THOUGHT

In Jonesv. Chidester, 531 Pa.31, 610 A.2d 964 (1992), the Supreme Court said:

“Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.”

The burden rests with the proponent of the “Two schools of thought doctrine” to demonstrate that there is adequate factual support for the claim that there are a considerable number of professionals who agree with the treatment.

For a medical school of thought to exist, its concepts, theories and standards must necessarily have achieved an acceptable level of scientific and medical acceptance that evidence that a medical school exists does not mislead the trier of fact. As such, testimony of the existence of a “new or novel” medical school of thought is a definable subset of novel scientific evidence generally.

In Tesauro v. Perrige, a medical malpractice case decided by the Supreme Court in 1994, the trial court refused to charge the jury on the defense of “two schools of thought.” The plaintiff claimed no legitimate second school of medical thought existed.

Mrs. Tesauro required the surgical removal of a damaged lower left molar. After successful surgery by Dr. Perrige, Mrs. Tesauro developed a dry socket. To treat this condition, Dr. Perrige administered an alcohol injection. The plaintiff’s face immediately went into muscle spasms, resulting in nerve damage and a permanent burning feeling. The defense presented only one expert witness, who testified that alcohol injections to treat intractable pain was “well-known in . . . the literature.” He referred to a single text from 1875 and a single manual written in 1961. He conceded that treatment by alcohol injection was not mentioned in any other scholarly article or text. He testified that he does not give alcohol injections and has never taught that alcohol injections are an acceptable treatment for dry socket. Performing a Frye-like evaluation of novel scientific testimony, the Superior Court ruled that: “The writings and teachings of one individual are inadequate factual support for the proposition that a considerable number of professionals agree with this treatment.” Thus, the Superior Court affirmed the decision to preclude the two schools of thought defense.

In a comparable case, the Supreme Court analyzed the two schools of thought doctrine differently. In Gala v. Hamilton, allocatur was granted to address the single issue of whether a defendant must present medical literature to justify a “two schools of thought” instruction.

Justice Nigro writes that medical literature should be required to support the opinion that a medical school of thought exists. He states in dissent:

“Such a requirement would recognize that a school of thought as it is used in the two schools doctrine is more than a spontaneous agreement among an ad hoc group of colleagues. Rather, it is by definition a more formal mode of practice, system or discipline with its own theoretical basis, medical principles, and protocol....
“Further, in order to be a ‘school,’ the approach, technique, treatment or procedure must be communicated to others who adopt and follow those methods. The shared teachings only become a school when the followers are numerous and the protocol is established, understood, and embraced at least among the defined group of disciples. As such, a considerable number of reputable and respected practitioners has long been the requirement in Pennsylvania in order to constitute a school. . . . The unadopted beliefs, writings and teachings of one individual provide inadequate factual support for a school of thought....
“Unless and until other reputable and respected colleagues adopt the advocated approach, it is only a theory and not a ‘school.’ ”

Thus, Justice Nigro would require evidence of “professional literature, descriptive of and in support of the defendant’s course of treatment” to prove that “competent medical authority is divided.” Mr. Justice Castille joined in Justice Nigro’s dissenting opinion.

The majority of the Supreme Court, however, held that no supporting medical literature was needed. The Supreme Court held that without any supporting literature, opinion evidence that a medical school of thought existed does assist the jury. If opinion testimony is offered that the course of treatment is “advocated by a considerable number of recognized and respected professionals,” the existence of such a “school” can constitute a complete defense to a claim of medical malpractice.

Mr. Gala had surgery for a benign tumor in his neck. This surgery, performed under local anesthesia, became more complicated than initially envisioned when it was learned that the tumor had encircled a branch of his spinal accessory nerve. Plaintiff claimed that he sustained a permanent injury during this surgery. Plaintiff claimed the defendant was negligent in performing the operation under local anesthesia “because it restricted the operative field and the ability of the surgeon to observe the operative field adequately.” Plaintiff’s expert testified that the use of local anesthesia increased the risk and thereby caused the injury. The defense claimed the defendant correctly followed one of two accepted medical techñiques. The plaintiff denied that any second school of thought existed.

For the defense, Dr. Myers testified that both he and a considerable number of reputable and respected physicians throughout the world used local anesthesia for this type of surgery. He could refer, however, to only one other doctor who employed local anesthesia, and that was a physician who removed thyroid tumors in India. Dr. Myers conceded that he could find no reference in the medical literature. A second expert, Dr. William M. Keen, likewise testified for the defense that the medical literature makes no reference to anesthesia.

The majority of the Supreme Court reaffirmed that the burden of demonstrating the existence of two schools of medical thought is on the proponent but ruled that there is no requirement of any specific number of followers to constitute a school. The Supreme Court held:

“Once the expert states the factual reasons to support his claim that there is a considerable number of professionals who agree with the treatment employed by the defendant, there is sufficient evidence to warrant an instruction to the jury on the two ‘schools of thought.’ It then becomes a question for the jury to determine whether they believe that there are two legitimate schools of thought such that the defendant should be insulated from liability.”

The Supreme Court majority rejected any specific literature requirement. The Supreme Court explained that:

“Limiting evidence to medical literature would have the effect of preventing expert witnesses from testifying to the existence of a school of thought based on their experience as practitioners and on information they obtained during their medical training and while attending lectures and other educational programs sponsored by institutions and professional societies. Furthermore, in cases where medical literature is silent with regard to certain techniques or treatments, the lack of written materials would necessarily be fatal to the defendant’s claim.”

Reaffirming prior law, the Supreme Court held that once an individual is qualified to provide expert testimony pursuant to Dambacher, an expert can offer to the jury the opinion that a medical school of thought exists even where there is no medical literature supporting the opinion. The Supreme Court further reaffirmed that the testimony of an expert “alone establishes that a considerable number of recognized and respected professions advocate the course of treatment followed by the defendant,” and that cross-examination was sufficient protection for the jury’s fact-finding function. With respect to this medical malpractice defense, no judicial gatekeeping is required. The Supreme Court reaffirmed that the lack of supporting medical literature was significant only as to the weight of the evidence and not its admissibility.

Thus, in two distinct areas of medical negligence claims, namely the doctrines of “medical schools of thought” and “increased risk of harm,” opinion evidence by a witness qualified pursuant to Dambacher will assist the jury, even without any supporting medical or scientific literature. No support beyond the expert opinion itself is needed for admissibility. The “clinical” or experimental judgment and opinions of qualified expert witnesses are admissible even as to novel theories of increased risk or as to the existence of a previously unknown “medical school of thought.” Plaintiff herein urges this court to apply these exceptions to Frye. Neither exception is applicable.

IX. APPLICATIONS

In this products liability claim, plaintiff directly contends that the novel opinion of Dr. DePace, that low voltage shock directly causes myocardiopathy, should be admissible because an eminently qualified expert has honestly drawn this conclusion by using appropriate medical and scientific methodologies and applying his training, education and experience.

Plaintiff urges this court to analyze Dr. DePace’s methodology alone and find it reasonable and therefore a “consensus scientific extension” of known and well-accepted principles. Plaintiff’s expert hopes to advance the state of medical knowledge by publishing his conclusions concerning a new etiology for cardiomyopathy. He finds his conclusion concerning this patient worthy of publication in the medical literature. His draft article describes his conclusion as a “newly described” etiology. He acknowledges that he is attempting to create a consensus acceptance in the relevant medical-scientific community.

Neither his exemplary qualifications, nor his extensive experience, nor the soundness of the methodology is sufficient to overcome the novelty of his scientific advance. Although significant questions remain for resolution by the Supreme Court of Pennsylvania in this thorny area, a state trial court, unlike the federal district court, may not “predict” the rulings of the Supreme Court. A state trial court’s responsibility is to understand and apply the law. Although a trial court has wide discretion concerning the admissibility of evidence, discretion is not unbounded. As this court understands the law, the court’s exercise of evidentiary discretion to bar Dr. DePace’s opinion, to close the courtroom gates, and thereby preclude plaintiff a day in court, should be affirmed.

For the reasons set forth above the decision of the trial court should be affirmed.

      . There has recently been a dramatic increase in the number of motions to preclude expert opinion testimony based upon Frye in trial courts in Pennsylvania. There are no rules providing procedure for such motions. Different judges have adopted different procedural approaches.
      There is no .required time for presenting a Frye motion. Counsel seeking to preclude expert opinion have filed motions well in advance of trial. Other attorneys have filed motions in limine for pretrial ruling just before trial. Some counsel have waited until the expert witness has been called to the witness stand or even after the direct testimony has been completed before asserting a motion to preclude or strike. At a CLE panel, on which the author participated, a highly respected defense attorney suggested that a motion to strike on the basis of Frye could be raised for the first time on post-verdict motion.
      In this case, the court heard days of live testimony on the motion to preclude. Concluding that the exigencies of a busy judicial trial calendar and the trial schedules of the various attorneys precluded a full examination by live testimony, the court required that all additional testimony be presented by deposition. Accordingly, in evaluating this motion, the court adopted an approach that encompassed all permutations in attempting to establish a full and complete record for the proper ruling of this virtually dispositive motion. The court has before it affidavits, has received live and deposition testimony and has accepted medical literature in evidence.

      . Neither of the two incidents or patients described in the two articles parallel the medical picture in this case.

      . N.T, 5/1/98 at p. 32.

      . N.T. 5/1/98 at p. 28.

      . N.T. 5/1/98 at p. 28.

      . 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . See 1998 comment to Pa.R.E. 702.

      . The Supreme Court has said: “We leave to another day whether Daubert will be adopted.” That day has not yet arrived.

      . 54 App.D.C. 46, 293 F. 1013 (D.C. Cir. 1923).

      . 471 Pa. 223, 369 A.2d 1277 (1977).

      . 496 Pa. 97, 436 A.2d 170 (1981).

      . 529 Pa. 168, 602 A.2d 830 (1992).

      . 532 Pa. 79, 615 A.2d 1 (1992).

      . 536 Pa. 508, 640 A.2d 395 (1994).

      . 54 App.D.C. 46, 293 F. 1013 (1923).

      . Crews, 536 Pa. at 517-18, 640 A.2d at 399.

      . Crews, 536 Pa. at 522, 640 A.2d at 402.

      . Id. at 522 n.4, 640 A.2d at 402 n.4.

      . Id. at 519 n.2, 640 A.2d at 400 n.2.

      . “An expert witness is qualified to offer an opinion if he or she has sufficient skill, knowledge, or experience in a field or calling as to make it appear that his or her opinion or inference will probably aid the trier in its search for truth. Dambacher [by Dambacher] v. Mallis, 336 Pa. Super. 22, 485 A.2d 408 (1984). To be admissible, expert evidence on scientific matters must pass through an additional hoop.” Blum v. Merrell Dow Pharmaceuticals Inc., 705 A.2d 1314, 1316-17 (Pa. Super. 1997). (emphasis added)

      . 674 A.2d 1167 (Pa. Commw. 1996), appeal denied, 547 Pa. 733, 689 A.2d 237 (1997).

      . Plaintiffs presented three renowned experts in teratology, who testified that the studies were valid scientific studies, and the opinions based upon them were scientifically derived conclusions. The defendants offered renowned experts who criticized the studies and testified that no consensus had yet been achieved as to whether TCE or DCE caused birth defects.

      . McKenzie, 674 A.2d at 1172.

      . Id. at 1172.

      . Id. at 1172.

      . 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . 336 Pa. Super. 22, 485 A.2d 408 (1984).

      . Blum, supra at 1316-17.

      . This formulation has caused some confusion since the less restrictive Daubert analysis is necessarily incorporated into the Frye test. If the relevant scientific community accepts a conclusory proposition, it can only be because that same scientific community has reviewed the methodology and deems it appropriate. Under such a circumstance, a gatekeeper judge should be hard-pressed to independently conclude that although the proposition is accepted by a consensus of the relevant scientific community, the methodology is unscientific.

      . 717 A.2d 1058 (Pa. Super. 1998).

      . Checchio, 717 A.2d at 1060.

      . Id. at 1061.

      . Id. at 1060. (citations omitted)

      . Id. at 1060. (citation and footnote omitted) (emphasis added)

      . Id. at 1062.

      . Blasioli, 713 A.2d at 1119.

      . Id. at 1127.

      . 705 A.2d 894 (Pa. Super. 1997).

      . Smith, 705 A.2d at 900-901.

      . Id. at 900.

      . Jones, 531 Pa. at 40, 610 A.2d at 969.

      . See Bonavitacola v. Cluver, 422 Pa. Super. 556, 619 A.2d 1363 (1993), appeal denied, 535 Pa. 652, 634 A.2d 216 (1993).

      . 437 Pa. Super. 620, 650 A.2d 1079 (1994).

      . Apparently there was no objection to this testimony raised at trial.

      . Tesauro, 437 Pa. Super. at 627, 650 A.2d at 1083.

      . 552 Pa. 466, 715 A.2d 1108 (1998).

      . Gala v. Hamilton, 552 Pa. 466, 481-82 and n.1, 715 A.2d 1108, 1116 and n.1 (1998).

      . Id. at 1110-11.

      . Id. at 1111. (The majority did not ignore the apparently opposite Superior Court opinion in Tesauro; the court explained that Tesauro stands for the proposition “that while factual support is required for a two schools instruction, it need not be in the form of medical literature, but may be testimonial.” Gala, 522 Pa. at 473, 715 A.2d at 1112. The Supreme Court noted that neither of the two experts in Tesauro actually used the medical technique they claimed constituted a school.)

      . Gala at 479, 715 A.2d at 1114.

      . See Dillinger v. Caterpillar Inc., 959 F.2d 430 (3d Cir. 1992) (stating: “In deciding this case we must give due consideration to the decisional law of inferior state courts but we need not give those decisions binding effect.”); West v. American Telephone & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183 (1940), accord Burke v. Maassen, 904 F.2d 178, 182 (3d Cir. 1990); McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662 (3d Cir.), cert. denied, 449 U.S. 976, 101 S.Ct. 387 (1980); see also, Hall v. Wilkerson, 926 F.2d 311 (3d Cir. 1991) (Fullam, Sen. Dist. J., dissenting).