author: MINORA, J.,

text:
    Lawrence v. Malloy

      C.P. of Lackawanna County,
    no. 05-CV-761.

      James Colleran and David Colleran, for plaintiffs.

      Patrick Carey, for defendants.
    September 9, 2005
   MINORA, J.,

Before the court are two sets of preliminary objections filed by defendants, Edwin S. Malloy M.D. and Scranton Orthopedic Specialists P.C. The plaintiffs have filed a response to both sets of objections including their own preliminary objection to the defendants’ preliminary objections. This matter has been submitted to the court on the basis of the parties’ briefs and is therefore ripe for adjudication.

STATEMENT OF THE CASE

This medical professional liability action was instituted by plaintiffs ’ complaint filed on February 24,2005. Three separate certificates of merit were filed on March 7,2005, regarding the treatment provided by defendants, Dr. Malloy; Steindel, Malloy, Cronkey & ChiavacciLtd.; and Scranton Orthopedic Specialists P.C. The certificates of merit indicate that the handling of Mrs. Lawrence’s medical condition was below the acceptable professional standards required. The complaint indicates that at all times relevant to this matter, Dr. Malloy has been a duly licensed physician authorized to practice medicine in the Commonwealth of Pennsylvania, specializing in orthopedic surgery. The plaintiff also asserted that at all times during the course of the alleged misconduct, defendant, Steindel, Malloy, Cronkey and Chiavacci Ltd., has been a professional corporation organized under the laws of Pennsylvania. Likewise, at all material times to the complaint, defendant, Scranton Orthopedic Specialists P.C., has been operating as a professional corporation formed under the laws of the Commonwealth of Pennsylvania.

As set forth in the complaint, the plaintiff-wife, Carolyn Lawrence, fell, injuring her right wrist on March 6, 2003. How the fall occurred is never explained. Immediately after the fall, plaintiff-wife was taken to the Community Medical Center where x-rays were taken of the injured wrist, revealing a displaced fracture of the distal radius and a fracture across the base of the ulnar styloid. The wrist was splinted and plaintiff-wife was instructed by an employee of the hospital to follow up with an exam by an orthopedic surgeon. The next day, plaintiff-wife was examined by Dr. Malloy who diagnosed the problem as a “minimally displaced” Colies fracture of the right wrist. (See complaint, ¶9.) During the initial visit, Dr. Malloy advised his patient that he did not believe surgery was necessary and, alternatively, immobilized the wrist with a cast. Three weeks later, on March 28,2003, plaintiff-wife returned to Dr. Malloy as she was instructed, by which time the fracture displaced further. At that point, Dr. Malloy allegedly explained that surgery was not a viable option to realign the fracture. According to Dr. Malloy’s notes of May 9,2003, he concluded the fracture “collapsed,” acknowledging that this was an “unacceptable result.” (See complaint, ¶11.) The complaint further quotes Dr. Malloy’s records which state “[t]his is a case where we should have operated and used internal fixation. When I first saw her I thought it was fairly stable and that we would do all right [sic] with conservative treatment. Had I to do it over again, I would have plated the distal radius.” (Id.) As alleged, on two separate visits made by plaintiff-wife to Dr. Malloy in June of2003, the medical records of those visits indicate that Malloy continued to question the manner in which he treated the wrist fracture. (Id., ¶12.)

The plaintiff-wife continued to experience pain, paresthesias, decreased mobility and functionality in the right hand and wrist, so she sought a second opinion of David S. Zelouf M.D. On June 4, 2004, plaintiff consulted with Dr. Zelouf, who concluded that major reconstructive surgery was crucial for improvement of the plaintiff-wife’s then current condition. Plaintiff asserts that the injuries to her wrist are now permanent.

Count I of the complaint is asserted by plaintiff-wife, Carolyn Lawrence, against all named defendants and is grounded in medical negligence in regard to the care and treatment provided to Mrs. Lawrence. Count II of the complaint is asserted by Anthony Jackson Lawrence, Carolyn’s husband, against all named defendants for loss of consortium and society. Defendants, Dr. Malloy and Scranton Orthopedics, present preliminary objections to the plaintiff’s complaint in the form of motions for more specific pleading for failure to conform to rules of law and motions to strike, or, alternatively, motions for more specific pleading for the insufficient specificity of the pleading. Each motion will be discussed below.

DISCUSSION

I. Preliminary Objection: Failure To File Pleading in a Timely Manner

We shall begin our analysis with the preliminary objections filed as the plaintiffs’ response to the separate defendants’ preliminary objections. The plaintiffs assert that defendants, Dr. Malloy and Scranton Orthopedics, did not file the preliminary objections in a timely manner. Plaintiffs urge that, according to Pa.R.C.P. 1026, all pleadings subsequent to the complaint must be filed within 20 days of service.

The plaintiffs count the time within which the defendants had to file objections from March 2, 2005, which was the date the complaint was filed. According to their estimation, Scranton Orthopedics’ preliminary objections, filed April 29, 2005, were 58 days late, while Dr. Malloy’s preliminary objections, filed on April 7, 2005, were 36 days late. Yet, there is a more appropriate rule of procedure applicable given the circumstances in this case.

The rule concerning responsive pleading within a professional liability action is Pa.R.C.P. 1042.4. This rule requires a responsive pleading to be filed by the defendant within the time prescribed by the general rule, Pa.R.C.P. 1026, regarding time for filing, notice to plead, or within 20 days after service of the certificate of merit, whichever is later. Here the certificates of merit were filed with the Lackawanna County Judicial Clerk of Court on March 7, 2005. The Clerk of Judicial Records court docket sheet indicates that all defendants were served the complaint and the certificates of merit on March 21, 2005. The first defendant to file preliminary objections was Dr. Malloy, who filed on April 7,2005, only 17 days after service of the complaint and certificates of merit. Therefore, Dr. Malloy’s objections were clearly filed within the given time limit. Defendant Scranton Orthopedics’ preliminary objections were not filed until April 29, 2005, 39 days after service was made upon this defendant. Therefore, we shall only consider plaintiff’s motion to strike Scranton Orthopedics’ preliminary objections on the basis of untimely filing.

The Commonwealth Court directs that the trial court need not require that preliminary obj ections be filed within 20 days of the prior pleading. The 20-day rule is not absolute unless the defendant alleges prejudice resulting from the late filing. Chester Upland School District v. Yesavage, 653 A.2d 1319 (Pa. Commw. 1994). The Supreme Court in Fisher v. Hill, 368 Pa. 53, 81 A.2d 860 (1951), confirms that the 20-day rule under Pa.R.C.P. 1026 is not mandatory, but a permissive rule and late filing is acceptable as long as the opposing party is not prejudiced and justice requires, which is left to the court’s discretion. Chester Upland School District v. Yesavage, supra, at 1323 (the trial court did not err in allowing the filing of a pleading 10 months after the filing of the complaint). See Goldsboroughv. City of Philadelphia, 309 Pa. Super. 347, 455 A.2d 643 (1982), reargument denied (1983). The Supreme Court reminds us that “[procedural rules are not ends in themselves but means whereby justice, as expressed in the legal principles, is administered. They are not to be exalted to the status of substantive objectives.” Fisher v. Hill, 368 Pa. 53, 56, 81 A.2d 860, 863 (1951).

We are caused to turn our attention to the present pleading and the plaintiffs’ preliminary objection in the form of a motion to strike, to determine whether the moving party is prejudiced by the late filing. We find no averments indicating prejudice in the plaintiff’s response to preliminary objections of defendant Scranton Orthopedics filed on May 9, 2005. We consider the above interpretation of the 20-day rule under Pa.R.C.P. 1026 to be identical to the rule we are applying now, Pa.R.C.P. 1042.4, and find that it is useless to exalt form over substance. The plaintiffs have not been prejudiced by the Scranton Orthopedics’ filing preliminary objections 19 days later than the procedural rule provides. Therefore, we shall entertain the remaining objections below.

II. Preliminary Objection: Motion To Strike or, Alternatively, Motion for More Specific Pleading for Failure of a Pleading To Conform to Law or Rule of Court Under Pa.R.C.P. 1042.2(a), Pursuant to Pa.R.C.P. 1028(a)(2)

Identical objections, pursuant to Pa.R.C.P. 1028(a)(2), have been presented by the defendants, Dr. Malloy and Scranton Orthopedics. Both defendants request that the plaintiffs’ complaint be stricken or, alternatively, that the plaintiffs provide a more specific pleading for failure to conform to a rule of law as authorized by Pa.R.C.P. 1028(a)(2). Defendants maintain that the complaint fails to set forth a professional liability claim as prescribed by Pa.R.C.P. 1042.2(a). Pa.R.C.P. 1042.2(b) indicates that, should there be an issue as to whether the complaint asserts a professional liability claim, it be posed to the court in the form of a preliminary objection. Here it is clear the defendants raised issue in regard to the form of the professional liability action in the proper manner by submitting their preliminary objections.

The crux of the defendants’ argument is that the complaint fails to identify that the plaintiffs have asserted a professional liability claim as required by Pa.R.C.P. 1042.2(a). It is the defendants’ contention that specific language is absent from the complaint and, therefore, the complaint fails to comply with the requirements of the procedural rules. The defendants urge that the following language must be included in the complaint: “Plaintiff is asserting a professional liability claim against this defendant.” After a review of all relevant rules of procedure, we find the argument posed by the defendants has no merit as we explain below.

A separate chapter has been designated in the Pennsylvania Rules of Civil Procedure to govern a civil action commenced against a licensed professional. This chapter is set apart from the body of the text and entitled “Professional liability actions.” (See Pa.R.C.P. 1042.1-1042.8.) This chapter provides definitions for licensed professionals, the form of the complaint, certificate of merit and other matters relevant to pleading and relief. The language to which the defendants refer is set forth in the note to Pa.R.C.P. 1042.2. This note is merely a recommendation.

The rule defendants call into question is not alone the sole procedural rule to be followed when asserting a professional liability action. There are a series of rules that are applicable in bringing a professional liability claim or a medical professional liability claim, which collectively establish the procedural guidelines to be followed when asserting such a claim. The body of the rule, Pa.R.C.P. 1042.2(a), states “[a] complaint shall identify each defendant against whom the plaintiff is asserting a professional liability action.” Additionally, Pa.R.C.P. 1042.3 requires that a certificate of merit be filed together with a complaint, or within 60 days of the complaint, alleging that a licensed professional deviated from an acceptable professional standard of conduct. There is an additional segment of procedural rules found under Pa.R.C.P. 1042.16 through 1042.72 which specifically discuss requirements of medical professional liability actions. In particular, Pa.R.C.P. 1042.16 orders that the caption for a medical professional liability claim contain the designation “Civil action — Medical professional liability action.”

Presently, the plaintiffs’ complaint names the licensed professionals as defendants in the caption designated as a medical professional liability action. Paragraphs two through four of the complaint identifies Dr. Malloy as a licensed professional and Steindel, Malloy, Cronkey & Chiavacci Ltd. and Scranton Orthopedic Specialists P.C. as professional corporations and all are held responsible and liable for the liability-imposing acts and omissions in the care and treatment of the plaintiff-wife. On March 7,2005, the plaintiffs filed separate certificates of merit as to Dr. Malloy; Steindel, Malloy, Cronkey & Chiavacci Ltd. and Scranton Orthopedic Specialists P.C.

The purpose of procedural rules is to put the other parties on notice. Here we are satisfied that the complaint adequately notifies the defendants that they are the subject of medical professional liability claims. This is evident by the title of the caption, the reference used in regard to Dr. Malloy as a licensed professional and Scranton Orthopedic Specialists P.C. as a professional corporation. Additionally, certificates of merit were filed specific to each defendant, which is a necessity when instituting a professional liability claim. There is sufficient proof that the defendants were on notice that they were subject of the plaintiffs’ professional liability claim. Therefore, the objections made in regard to the failure of the complaint to comply with Pa.R.C.P. 1042.2 are overruled.

III. Preliminary Objection: Motion To Strike or, Alternatively, Motion for More Specific Pleading for Failure of a Pleading To Conform to Law or Rule of Court, Pa.R.C.P 1020, Pursuant to Pa.R. C.P 1028(a)(2)

Both objecting defendants move to strike or, alternatively, move for a more specific pleading on the grounds that plaintiffs’ complaint fails to conform to Pa.R.C.P. 1020(a). The defendants maintain that the complaint is improper since the cause of action, of medical negligence, alleged in Count I by Mrs. Lawrence is asserted against all defendants. Likewise, the cause of action, loss of consortium, in Count II alleged by Mr. Lawrence is asserted against all named defendants. The defendants urge that each cause of action must be asserted against the individual defendants in separate counts.

The procedural rule under scrutiny, Pa.R.C.P. 1020, states:

“The plaintiff may state in' the complaint more than one cause of action cognizable in a civil action against the same defendant. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.”

A recent Commonwealth Court decision explains that each claim or cause of action asserted in a complaint must be presented in a separate count together with the necessary factual averments particular to the claim and relief sought. Commonwealth of Pennsylvania v. Parisi, 873 A.2d 3 (Pa. Commw. 2005). In a medical negligence action, separate counts are required when more than one cause of action is stated, but when the factual background is identical for all defendants regarding negligence, no further delineation or separate allegations to each defendant is required. Nelle v. Milton S. Hershey Medical Center, 11 D.&C.4th 307 (1991); see Seruga v. Tushes, 21 D.&C.3d 111 (1981).

Presently, the relationship between defendant Dr. Malloy and defendant Scranton Orthopedics is not contested. The accountability assigned to Scranton Orthopedics is based upon the actions and inactions of its agent, Dr. Malloy, as set out in paragraphs 4 and 15 of the plaintiffs ’ complaint. The language of the complaint clearly states that co-defendant Dr. Malloy was employed as an agent of defendant Scranton Orthopedics, which is responsible for the liability-imposing acts of this case by the laws of agency of the Commonwealth of Pennsylvania. (See complaint, ¶4.) Agency is a relationship created when one party, called the principal or employer, obtains another party, the agent or employee, who consents to perform on the principal’s behalf and is subject to the principal’s control. See Basile v.H&R Block Inc., 563 Pa. 359, 761 A.2d 1115 (2000); Restatement (Second) of Agency § 1. Moreover, a principal may be vicariously liable for the actions or omissions of its agent. Myszkowski v. Penn Stroud Hotel Inc., 430 Pa. Super. 315, 634 A.2d 622 (1993). The issue we are concerned with is whether the counts, as asserted, refer to more than one cause of action in each count. Because the claims asserted in each count by the plaintiffs are based on a theory of agency, we find that only two causes of action have been alleged; one in each count. Here, the specific factual averments of negligence asserted against all defendants are specified in paragraph 15 and are incorporated by reference under Count I and II. Because the agency relationship between Dr. Malloy and Scranton Orthopedics is not challenged, we find that separate counts are not required since the claim of liability, regarding both defendants, stems from the same factual background involving Dr. Malloy’s mode of care of the plaintiff-wife. Therefore, both moving defendants’ motions to strike and, alternatively, motions for a more specific pleading are overruled.

IV. Preliminary Objections in the Nature of Motions To Strike Pursuant to Pa.RC.P 1028(a)(3) andPa.RC.P 1019(a)

Both moving defendants present the court with motions to strike or, alternatively, motions for a more specific pleading as permitted by Pa.R.C.P. 1028(a)(3). It is asserted that portions of the pleading are insufficiently specific. Defendant Dr. Malloy contends that subparagraphs 15(a) through (c) and (i) through (k) must be stricken or alternatively re-pled since the averments fail to specify the time or manner Dr. Malloy allegedly failed in his duties as a physician. Defendant Scranton Orthopedic Specialists P.C. maintains that the allegations described in subparagraphs (a) through (c) and (i) through (k) insufficiently describe whether the averments apply to Dr. Malloy or to the staff of the professional corporation, Scranton Orthopedic Specialists P.C.

The Commonwealth of Pennsylvania is a fact-pleading state whereby the complaint must provide the defendant notice of the basis of the claim, as well as a summary of the facts essential to support that claim. Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa. Super. 293, 464 A.2d 1349 (1983). Preliminary objections in the form of motions to strike items in a complaint under Pa.R.C.P. 1028(a)(3) can be for lack of specificity of pleading pursuant to Pa.R.C.P. 1019(a). These Rules of Civil Procedure require that all the material facts on which a cause of action or defense are based shall be stated in a concise and summary form. See Pa.R.C.P. 1019(a); Yacoub v. Lehigh Medical Associates PC., 805 A.2d 579 (Pa. Super. 2002). The Superior Court of Pennsylvania notes that the question presented by Pa.R.C.P. 1028(a)(3) is “whether the complaint is sufficiently clear to enable the defendant to prepare his defense or [if it] informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” McNeil v. Jordan, 814 A.2d 234, 237-38 (Pa. Super. 2002); Ammlung v. City of Chester, 224 Pa. Super. 47, 59 n.36, 302 A.2d 491, 498 n.36 (1973) (quoting 1 Goodrich-Amram § 1017(b)-9). To determine if a paragraph contains the appropriate specificity, the court looks not only to the particular paragraph at issue, but also to that paragraph in the context of the other allegations in the complaint. Yacoub, supra at 589.

The trial court has broad discretion in determining the amount of detail that must be pleaded since this is not something capable of precise measurement. Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677 (1978). It is not necessary to plead evidence which can be developed through discovery. Local No. 163, International Union U.B.F.C.S.D. & D. W. v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965). See also, Com. of PA v. Schlittler, 104 Lacka. Jur. 112, 115-16 (2003). Yet, when determining whether the averments of the complaint are sufficient, a court must ensure that the challenged averments present no risk of a future, unexpected amendment to the complaint based upon new facts after the statute of limitations has run. Boyd v. Somerset Hospital, 24 D.&C.4th 564, 567 (1993); Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983); see also, Clarkson v. Geisinger Medical Center, 46 D.&C.4th 431 (2000). While the Pennsylvania Rules of Civil Procedure direct that the defendant be capable of preparing a defense based upon the allegations of the complaint, it need not list all evidence that demonstrates the defendant’s improper acts. Boyd v. Somerset Hospital, 24 D.&C.4th 564,567 (1993); Albright v. Gadiparthi, 50 Somerset L.J. 355, 361 (1991). As we have stated in Latniak v. Koch, 04 CIV 2253 C.C.P. Lacka. Cty. (Minora, J., 2005), “discovery is the proper phase of litigation in which evidentiary details will be revealed. . . . Moreover, ‘common pleas courts have been rightly attuned to plaintiff’s [in medical malpractice cases] who have less knowledge than the defendant medical providers about the care and/or treatment provided. ’ The requisite amount of facts pled in the complaint must be sufficient to put the defendant on notice of the alleged wrong, while specific enough for the defendant medical provider to devise a defense. Because of the vast disparity between the plaintiffs’ and defendant’s education in the field of medicine, the plaintiff cannot be expected to plead facts in the complaint that detail precisely what ‘procedures’ the defendant medical provider undertook or omitted that ultimately caused the injury.”

We are reminded that a case is not tried at the preliminary objection phase of litigation. There are more appropriate stages through the course of the civil process when the parties will be given an opportunity to address factual disputes. Yet, it is proper for the court to eliminate any broad or ambiguous allegations from a complaint; we do not find such averments in the present complaint. We find that a sufficient factual basis has been provided regarding the claims of negligence asserted by the plaintiff-wife, specifically in regard to the care and supervision of her Colles fracture, and loss of consortium claim asserted by plaintiff-husband, to allow the defendants to prepare a proper defense. An appropriate order consistent with this memorandum follows.

ORDER

And now, to wit, September 9, 2005, upon consideration of the written arguments of counsel and in accordance with the preceding memorandum, the following is hereby ordered and decreed:

(1) Plaintiffs’ preliminary objections in the form of motions to strike the preliminaiy obj ections filed by Edwin S. Malloy M.D. and the preliminary objections filed by Scranton Orthopedic Specialists P.C. are overruled.
(2) Defendant, Edwin S. Malloy’s M.D., preliminary objection pursuant to Pa.R.C.P. 1028(a)(2) in the form of a motion to strike, or, alternatively, for a more specific pleading for the failure of a pleading to conform to law or rule of court, under Pa.R.C.P. 1042.2(a), is overruled.
(3) Defendant, Scranton Orthopedic Specialists’ P.C., preliminary objection pursuant to Pa.R.C.P. 1028(a)(2) in the form of a motion to strike, or, alternatively, for a more specific pleading for the failure of a pleading to conform to law or rule of court, under Pa.R.C.P. 1042.2(a), is overruled.
(4) Defendant, Edwin S. Malloy’s M.D., preliminary objection pursuant to Pa.R.C.P. 1028(a)(2) in the form of a motion to strike or, alternatively, motion for more specific pleading for failure of a pleading to conform to law or rule of court, Pa.R.C.P 1020, is overruled.
(5) Defendant, Scranton Orthopedic Specialists’ P.C., preliminary objection pursuant to Pa.R.C.P. 1028(a)(2) in the form of a motion to strike or, alternatively, motion for more specific pleading for failure of a pleading to conform to law or rule of court, Pa.KC.P. 1020, is overruled.
(6) Defendant, Edwin S. Malloy’s M.D., preliminary objections in the nature of motions to strike pursuant to Pa.R.C.P. 1028(a)(3) and Pa.RC.P. 1019(a), for insufficient specificity of the pleading in subparagraphs 15(a) through (c) and (i) through (k), is overruled.
(7) Defendant, Scranton Orthopedic Specialists’ P.C., preliminary objections in the nature of motions to strike pursuant to Pa.R.C.P. 1028(a)(3) and Pa.R.C.P. 1019(a), for insufficient specificity of the pleading in subparagraphs 15(a) through (c) and (i) through (k), is overruled.

      . “Note: It is recommended that the complaint read as follows:

        “Defendant_(name) is a licensed professional with offices in _County, Pennsylvania. Plaintiff is asserting a professional liability claim against this defendant. ” See Pa.R.C.P. 1042.2(a). (emphasis added)

      . Defendant, Scranton Orthopedic Specialists P.C., is a professional corporation or other form of legal business entity, organized and existing under the laws of Pennsylvania, with professional offices located at 231 Northern Boulevard, Clarks Summit, Pennsylvania 18411. At all times material to this complaint, this defendant employed as its agent (real and/or ostensible), and/or servant, and/or employee, co-defendant Edwin S. Malloy M.D. and is responsible and liable for his liability-imposing acts and/or omissions in this case under, and by virtue of, the laws of agency of the Commonwealth of Pennsylvania. See ¶4, plaintiffs’ complaint.
      The negligence of defendant Edwin S. Malloy M.D., imposing liability on himself individually and upon co-defendants Steindel, Malloy, Cronkey & Chiavacci Ltd. and Scranton Orthopedic Specialists P.C. substantially increased wife-plaintiff’s risk of harm and was the direct and proximate cause of the injuries and damages alleged herein and consisted of the following:
      (a) failing to appropriately assess wife-plaintiff’s Colles fracture;
      (b) failing to appropriately treat wife-plaintiff’s Colles fracture;
      (c) failing to correctly judge the degree of displacement in wife-plaintiff’s Colles fracture;
      (d) failing to recognize that wife-plaintiff’s Colles fracture required surgical intervention;
      (e) failing to perform surgery to stabilize wife-plaintiff’s Colles fracture;
      (f) failing to perform open reduction internal fixation to stabilize wife-plaintiff’s Colles fracture;
      (g) negligently determining that wife-plaintiff’s Colles fracture could be successfully treated with closed reduction and/or cast immobilization;
      (h) negligently casting wife-plaintiffs Colles fracture in such amanner to allow it to further displace;
      (i) failing to order sufficient follow-up care for wife-plaintiff;
      (j) failing to become aware of further displacement of wife-plaintiffs fracture in a timely manner;

        (k) failing to become aware of further displacement of wife-plaintiff’s fracture at a time when it would have been amenable to surgical correction;
      (l) negligently allowing for a three-week interval [to] take place in between wife-plaintiff’s initial visit and next office visit;
      (m) failing to order at least weekly office visits for wife-plaintiff, particularly in the weeks immediately following the diagnosis of the fracture. See ¶15 of plaintiffs’ complaint.

      . The challenged subparagraphs have previously been noted in footnote 2.


source: Caselaw Access Project

author: BLACK, J,

license: Public Domain

text:
    Salamoni v. Karoly

      C.P. of Lehigh County,
    no. 2003-C-3208.

      Gary Neil Asteak, for plaintiff.

      Lewis L. Thompson Jr., for defendant Karoly.

      Michael P. Gough, pro se.
    August 22, 2005
   BLACK, J,

This is a professional negligence case against two attorneys at law. The plaintiff alleges that the defendants failed to file a personal injury claim on his behalf within the limitations period, and that, as a result, his claim was dismissed. The clerk of courts entered judgments of non pros in favor of both defendants based on their praecipes stating that the plaintiff had failed to file a timely certificate of merit in support of his claim. The plaintiff has petitioned to open and/or strike off the judgments of non pros. For the reasons discussed below, we have concluded that the judgments of non pros must be stricken.

FACTUAL BACKGROUND

The facts alleged in the complaint are as follows: On or about June 21, 1999, the plaintiff was struck by an automobile driven by Christopher Carl Phillips. As a result of the accident, the plaintiff suffered personal injuries. On or about August 5, 1999, the plaintiff entered into a contract for legal services with the defendant John Karoly, in which Karoly undertook to represent the plaintiff as his legal counsel to seek a recovery for his injuries in the accident. The contract provided that Karoly “may, in his discretion and at his own expense, employ associate counsel if he considers it necessaiy to the proper prosecution of the claim.” Pursuant to this authority, Karoly employed the defendant Gough as associate counsel to work on the plaintiff’s case.

On or about June 20,2001, Karoiy Law Offices P.C., through Gough, filed a praecipe for issuance of writ of summons on behalf of the plaintiff against Mr. Phillips and his mother, Susan Phillips, in the court of Common Pleas of Lehigh County, Pennsylvania. A writ of summons was issued on or about June 20, 2001. However, the writ expired on July 20,2001, without having been served because Karoiy and Gough failed to deliver the writ to the sheriff’s office for service.

The two-year statute of limitations for personal injury actions expired on June 21,2001. Thereafter, Gough reinstated the writ, arranged for it to be served, and eventually filed and served a complaint against Mr. and Mrs. Phillips. In their answer to the complaint, Mr. and Mrs. Phillips raised the affirmative defense of the statute of limitations.

On April 17, 2003, Mr. and Mrs. Phillips filed a motion for summary judgment based upon the expiration of the statute of limitations. On June 9, 2003, this court granted the motion and entered summary judgment against the plaintiff in the underlying action.

On June 24,2004, the plaintiff filed the instant action against Karoiy and Gough for professional legal malpractice for their failure to timely file and execute service of a summons or complaint against Mr. and Mrs. Phillips. A certificate of merit was filed as to both defendants on June 6,2005. The certificate of merit states the following:

“Certificate of merit as to John P. Karoiy Jr., Esquire, and Michael P. Gough, Esquire.
“I, Gaiy Neil Asteak, Esquire, certify that:
“An appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the above-named defendants in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm to the plaintiff....”

On June 13,2005, a week after the certificate of merit was filed, Karoly filed with the clerk of courts a praecipe for entry of judgment of non pros on the ground that the plaintiff had failed to file a timely certificate of merit. Shortly afterwards Gough filed a praecipe for entry of judgment of non pros for the same reason. Based on these praecipes, the clerk of courts entered judgments of non pros in favor of both defendants against the plaintiff.

The plaintiff responded to the judgments by filing a petition to open and/or strike off the judgments of non pros on June 21, 2005. This petition is presently before the court for adjudication.

DISCUSSION

The requirement of a certificate of merit in a professional malpractice action is governed by Pennsylvania Rule of Civil Procedure 1042.3. This rule states, in pertinent part, the following:

“(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plain-
tiff if not represented, shall file with the complaint or within 60 days after the filing of the complaint, a certificate of merit signed by the attorney or party that either
“(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or ...
“(b) A separate certificate of merit shall be filed as to each licensed professional liability against whom a claim is asserted....”

The defendants have advanced three arguments in support of the entry of judgment against the plaintiff: (1) the filing of the certificate of merit was untimely; (2) the language of the certificate fails to conform to the rule; and (3) a separate certificate was not filed as to each defendant. We find no merit in any of these arguments.

I. The Timing of the Certificate of Merit

Pa.R.C.P. 1042.3(a) provides that a certificate of merit shall be filed with the complaint or within 60 days thereafter. However, Pa.R.C.P. 1042.6 states that “the prothonotary may not enter judgment if the certificate of merit has been filed prior to the filing of the praecipe . . .” for judgment of non pros. Therefore, the prothonotary or clerk of courts is not authorized to enter a judgment of non pros if a certificate of merit has been filed anytime prior to the filing of a praecipe for judgment of non pros. Moore v. Luchsinger, 862 A.2d 631 (Pa. Super. 2004) (judgment of non pros may not be entered when a certificate of merit is filed outside the 60-day time limitation, but before the praecipe for judgment of non pros).

In the present case, the certificate of merit was filed after the expiration of 60 days from the filing of the complaint. However, the certificate was filed seven days before Karoly filed a praecipe for judgment of non pros and 16 days before Gough filed his praecipe for judgment of non pros. Accordingly, the clerk of courts was without authority to enter the judgments of non pros on the ground that the certificate of merit was not timely submitted.

II. The Language of the Certificate of Merit

The defendants next contend that the plaintiff’s certificate of merit fails to comply with Pa.R.C.P. 1042.3(a) (1) because it does not employ the precise language of this rule. The rule states that the certificate must aver the existence of a written statement that there exists “a reasonable probability” that the care, skill or knowledge exercised or exhibited by the defendants fell outside acceptable professional standards; whereas the certificate filed by the plaintiff in this case recites that the written statement supplied avers that “there is a basis to conclude” that the care, skill or knowledge exercised or exhibited by the defendants fell below acceptable professional standards. The defendants argue that this is a material difference that justified the action of the clerk of courts in entering the judgments of non pros even if the certificate was timely filed. We disagree.

Pa.R.C.P. 1042.8 specifies the form for a certificate of merit. This rule uses the very phrase “there is a basis to conclude” that the defendants have objected to here. The certificate of merit filed by the plaintiff in this case uses the identical language and format prescribed by this rule. For this reason, we cannot find that the language of the certificate was improper.

There is a second reason why the form of the certificate was not a proper basis for the clerk to enter judgment. The clerk is not authorized under Pa.R.C.P. 1042.3 to enter a judgment where a certificate of merit has been filed that is allegedly not in proper form. If no certificate of merit has been filed and more than 60 days have elapsed since the filing of the complaint, the clerk can determine this from the record. The entry of a judgment of non pros in such a case, upon the defendant’s praecipe, is a ministerial act within the scope of the clerk’s authority. Flowever, where a certificate of merit has been filed and the defendant claims that it is not in proper legal form, this requires a judicial decision. The entry of judgment in the latter situation is not a ministerial act to be carried out by the clerk, but a decision to be made by the court. The proper procedure for the defendants to challenge the form of the certificate would have been for them to present to the court a motion to strike the certificate.

In this case, the defendants alleged in their praecipes, as the sole basis for the entry of judgment, that no certificate of merit had been filed within the time required by Pa.R.C.P. 1042.3. As we have seen above, this was not a valid basis for entering the judgments. The clerk was without authority to enter a judgment of non pros under Pa.R.C.P. 1042.3 on any other basis. For this reason, also, the judgments must be stricken.

III. Single Certificate of Merit for Both Defendants

The plaintiff filed a single certificate of merit covering both defendants. The defendants assert this certificate of merit is procedurally deficient since Pa.R.C.P. 1042.3(b) requires a separate certificate of merit to be filed for each defendant. Because of this deficiency, the defendants argue that the clerk of courts properly entered judgments of non pros against the plaintiff. Again, we disagree.

First, as discussed above, the clerk of courts has only limited authority to enter a judgment of non pros under Rule 1042.3, i.e., where, at the time of the praecipe for judgment, no certificate of merit has been filed and more than 60 days have elapsed since the filing of the complaint. In this case there was a certificate of merit on file naming both defendants as the responsible parties. It was not the clerk’s function to evaluate the sufficiency of this certificate. The clerk was without authority to enter a judgment of non pros under these circumstances.

Second, where both parties are jointly responsible for the same negligent act or omission, a single certificate of merit that names both defendants should suffice. Karoly and Gough were both responsible for seeing that suit was timely commenced on behalf of the plaintiff. The plaintiff hired Karoly to pursue his personal injury claim, and the engagement contract authorized Karoly to utilize the services of other attorneys to assist in the prosecution of the claim. Karoly exercised this right by utilizing Gough, one of the attorneys in his law office. Under the facts alleged, Karoly and Gough were both responsible to the plaintiff for the timely filing of suit. If they allowed the statute of limitations to expire, both would be liable for the same negligent omission.

The purpose of Pa.R.C.P. 1042.3(b) is to assure that the plaintiff has a reasonable basis for pursuing a claim against all the defendants named in the complaint. Where several defendants acting together are responsible for the same negligent act or omission, a single certificate of merit naming both or all defendants fulfills this purpose. Pa.R.C.P. 126 requires that

“The rules... be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.”

In accordance with this rule, even if use of a single certificate of merit naming both defendants was in error, the purpose behind Rule 1042.3(b) was met and the substantial rights of the parties are not harmed. Hence, the fact that one piece of paper was used rather than two should be disregarded.

For all the above reasons, the judgments of non pros must be stricken.

ORDER

Now, August 22, 2005, upon consideration of the plaintiff’s petition to open and/or strike off judgment of non pros and the defendants’ answers thereto, after review of the parties’ briefs and oral argument, for the reasons stated in the accompanying opinion, it is ordered that the petition is granted and the judgments of non pros entered in favor of the defendants are hereby stricken.

      . In Lehigh County the prothonotary is designated as the clerk of courts.


author: BANACH, J,

text:
    Commonwealth v. C.A.S.

      C.P. of Lehigh County,
    no. 2004/207-J.

      Gregory R. Spang, assistant district attorney, for Commonwealth.

      Alexander Stirton, for defendant.
    August 8, 2005
   BANACH, J,

On March 30, 2004, C.A.S., a juvenile, was adjudicated delinquent by this court. At that time, the juvenile admitted to one count of arson, graded as a Felony 1. The juvenile intentionally set five small fires in her home at 333 North Fulton Street, Allentown, Lehigh County, Pennsylvania, which spread to several other homes in the neighborhood, causing damage in excess of $200,000. One firefighter was injured.

On May 13,2004, following a disposition hearing held on April 30,2004, and the consideration of several evaluations including a psychological evaluation, an evaluation from the Center for Arson Research, and a summary from the Lehigh County Juvenile Probation Department, the juvenile was sent to placement at Laurel Youth Services in Blossburg, Pennsylvania and was ordered to pay $250 to William and Cynthia Donmoyer, $95 to Charles and Liona [sic] Claxton, and $580 to John and Suzanne Rogers as restitution. Furthermore, the juvenile was ordered to perform community work service hours at the appropriate time in an appropriate manner.

On July 1, 2004, a review of disposition hearing was held. At that time, the court ordered that the juvenile remain at Laurel Youth Services. Restitution figures were amended as follows:

John Dilcher, $250.
Debra Hausman, $250.
Susan Rogers, $580.
Cynthia Donmoyer, $250.
Bonnie Krumenacker, $250.
Rebecca and Chris Houser, $1,184.22.

The court held in abeyance the restitution claims of Erie Insurance Company, Lliana Claxton, and All State Insurance Company. The court requested that the juvenile and the Commonwealth submit memoranda on these claims. This opinion follows.

DISCUSSION AND CONCLUSIONS OF LAW

The juvenile, through her counsel, questions the appropriateness of a restitution claim made by Erie Insuranee Company, an insurer of one of the homes damaged by the fire set by the juvenile. Counsel argues that restitution to Erie Insurance Company “is not mandatory [and that issuing such restitution] may be unreasonable.” Juv. mem. on restit., p. 2.

“[An] order of restitution is not an award of damages .... While the order aids the victim, its true purpose, and the reason for its imposition, is the rehabilitative goal it serves by ‘impressing upon the offender the loss he has caused and his responsibility to repair that loss as far as it is possible to do so.’ ” Commonwealth v. Galloway, 302 Pa. Super. 145, 161, 448 A.2d 568, 576 (1982) (quoting State v. Stalheim, 275 Or. 683, 689, 552 P.2d 829, 832 (1976)).

The case at bar first focuses on what constitutes a “victim” for purposes of the restitution order. Particularly instructive is the definition of “victim” under 18 Pa.C.S. § 1106(h), Restitution for injuries to person or property. Historically the term “victim” was defined as “[a]ny person, except an offender, who suffered injuries to his person or property as a direct result of the crime.” See Galloway at 161, 448 A.2d at 576. (emphasis in original)

In Galloway, the Superior Court determined that a fire insurance company was not a “victim” according to the definition above. The court determined that:

“The insurance company was required to reimburse the legal owners, as per an insurance contract, but such payment does not constitute injury as required by section 1106(h). Injury to property is defined in 18 Pa.C.S. § 1106(h), as ‘[ljoss of real or personal property, including negotiable instruments, or decrease in its value, directly resulting from the crime.’ Therefore, payment under an insurance contract is not a Toss’, but merely a contractual obligation. Only the innocent legal owners of the home destroyed by the arson are entitled to restitution on the arson conviction as the victims.” Galloway at 161-62,448 A.2d at 577. (emphasis in original) (footnote omitted)

In summation, the Galloway court determined that when an insurance carrier’s loss is merely consequential to the criminal conduct and is not the intended victim of the crime, the insurance carrier is not entitled to receive compensation in the form of restitution.

Since the determination made in Galloway, the Pennsylvania Legislature has seen fit to modify the definition of “victim.” As defined under the current 18 Pa.C.S. § 1106(h) statute, “victim” now “includes the Crime Victim’s Compensation Fund if compensation has been paid by the Crime Victim’s Compensation Fund to the victim and any insurance company that has compensated the victim for loss under an insurance contract.” See Commonwealth v. Layhue, 455 Pa. Super. 89, 95, 687 A.2d 382, 384 (1996). (emphasis added) As a result, Erie Insurance Company and Allstate Insurance Company are entitled to an award of restitution in the amount that they have paid to the “direct” victims as a result of the juvenile’s actions.

Restitution in juvenile court is governed by 42 Pa.C.S. §6352. In Interest of Dublinski, 695 A.2d 827, 830 (Pa. Super. 1997). Specifically, section 6352(5) allows a court to order “payment by the child of reasonable amounts of money as fines, costs or restitution as deemed appropriate as part of the plan of rehabilitation considering the nature of the acts committed and the earning capacity of the child.” In order to determine the requisite amount of restitution owed by the juvenile, the sentencing court must consider four factors: “(1) The amount of loss suffered by the victim; (2) The fact that defendant’s action caused the injury; (3) The amount awarded does not exceed defendant’s ability to pay; [and] (4) The type of payment that will best serve the needs of the victim and the capabilities of the defendant.” In Interest ofDublinski at 829. (citations omitted) Furthermore, although “an award of restitution lies within the discretion of the court, it should not be speculative or excessive and [the appellate courts] must vacate a restitution order which is not supported by the record.” Id.

Case law has suggested particular ways in which a trial court ought to consider the four factors outlined above. In terms of the second element, “the court must apply a ‘but-for’ analysis, in which appellant will be liable for restitution for all damages which would not have occurred but for her criminal conduct.” Id. at 830. The third element of the analysis requires that the court consider “the earning capacity of the child.” Such earning capacity can be determined by examining relevant factors such as the juvenile’s mental ability, maturity and education, work history, the likelihood of her future employment and extent to which she can reasonably meet a restitution obligation, the impact of a restitution award on her ability to acquire higher education, and her present ability to make restitution. Id. In terms of the fourth factor, “[sjhould the court determine that appellant has no present ability to pay restitution... the court may defer imposition of a payment plan until an appropriate time in the future.” Id. at 830.

In applying the factors outlined above, the juvenile in this case will not be held responsible for the amount of requested restitution to either Erie Insurance Company or Allstate Insurance Company. While the amount of loss suffered by the victims is clear from the record and the damage caused is particularly attributable to the juvenile’s criminal conduct, namely intentionally setting a fire in her home, which spread to the neighboring homes, the amounts of requested restitution for the insurance companies far exceed this juvenile’s ability to pay. Erie Insurance Company is requesting $22,682.51 in restitution. Allstate Insurance Company is requesting restitution in the amount of $3,578.43. Given the juvenile’s significant mental and psychological issues, the likelihood of future employment with a Felony 1 arson conviction, and her lack of a work history, an amount of restitution greater than $25,000 is excessive and unreasonable in light of the juvenile’s ability to pay.

CONCLUSION

Based on the application of the aforementioned factors and the juvenile’s inability to pay, the juvenile will not be held responsible for any restitution to either Erie Insurance Company or Allstate Insurance Company.

ORDER

And now August 8, 2005, after consideration of the testimony heard on July 1, 2005, and the memorandum on restitution filed by counsel for the juvenile on July 14,2005, the juvenile shall be responsible to the following victims as follows:

Erie Insurance Company, $0.
Lliana Claxton, $920.
All State Insurance Company, $0.

      . Such analysis would likewise apply to Allstate Insurance Company. The juvenile did not make argument as to the amount of restitution due Lliana Claxton. Therefore, the court has not analyzed that claim for restitution.

      . This section applies to restitution orders in criminal court and is therefore not controlling. See In Interest of Dublinski, 695 A.2d 827, 830 (Pa. Super. 1997). This court merely uses the definition of the word “victim” as instructive.

      . Erie Insurance Company was the insurer of the Donmoy er home.


author: KUNSELMAN, P.J.,

text:
    Smith v. Sperduti

      C.P. of Beaver County,
    no. 10257 of 1998.

      Arthur Bloom, for plaintiff.

      Bernard C. Caputo, for defendant.
    August 5, 2005
   KUNSELMAN, P.J.,

This case presents an issue of first impression. Can an aggrieved party secure relief from a judgment of a district justice (now a magisterial district judge) by way of a writ of certiorari, claiming lack of jurisdiction over him, after the case records of the district justice have been destroyed pursuant to the record retention and disposition schedule adopted to implement Pa.RJ.A. 507(b)? This issue is presented by the following factual and procedural history.

The respondent, Frank Smith, and Erie Insurance Company filed a civil action against the petitioner, Louis Sperduti, seeking damages Smith claimed to have sustained in a motor vehicle accident allegedly caused by the negligence of Sperduti. Erie apparently has a subrogation interest in the case. The accident occurred on September 19, 1985, in the City of Aliquippa and suit was filed on April 28, 1986, in the office of District Justice Peter J. Loschiavo. District Justice Loschiavo entered judgment by default on May 20, 1986, in favor of Erie Insurance and Smith and against Sperduti in the amount of $3,236.09. Acertified copy ofthis judgment was filed with the prothonotaiy of Beaver County on June 26,1986, at no. 785 of 1986 DSB.

Both the original process issued by District Justice Loschiavo and the notice of judgment by the prothonotary of Beaver County were mailed to Sperduti at 100 Grand Avenue, Aliquippa, PA. The prothonotary of Beaver County mailed a certification of the nonpayment of the judgment to the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing on October 17, 1986. (See record of proceedings at no. 785 of 1986 DSB.) That agency suspended Sperduti’s operator’s license, effective January 9, 1987, for nonpayment of the judgment. Notice thereof was mailed to Sperduti on December 5, 1986. Although the address to which the notice was mailed is unknown, the records of the bureau indicate that Sperduti’s operator’s license was received by the bureau on January 19, 1987. (P. 3, exhibit G to Sperduti’s brief filed May 26, 2005.)

Thereafter, nothing occurred until February 18,1998, when Sperduti, pro se, filed a praecipe for a writ of certiorari directed to District Justice, now Magisterial District Judge, James F. DiBenedetto. (The former District Justice Peter J. Loschiavo retired and later died. James F. DiBenedetto was elected to replace him.) The praecipe claimed lack of jurisdiction over Sperduti and such gross irregularity of procedure as to make the judgment void. The writ was issued the same day and, on February 19, 1998, District Justice DiBenedetto filed a return of the writ in which he reported that the records in the case had been destroyed after seven years. The only record remaining was a “Civil case progress record,” a copy of which was forwarded in further response to the writ. That record is in the nature of docket entries and discloses the docket number, the names of the plaintiff and the defendant, the date filed, a code for “action in trespass,” the filing costs, the dates of hearing and judgment and, under “comments,” “Def. Jud.” No other record was available to submit in response to the writ of certiorari, in-eluding, significantly, the type and manner of service of process.

After the writ was returned, Sperduti did nothing until January 26, 2005, when Sperduti, through counsel, presented a petition to open or strike judgment to the court. That petition was filed at the same number as had been given to the praecipe for writ of certiorari instead of no. 785 of 1986 DSB. On the same date, the court issued a rule in accordance with Pa.R.C.P. 206.5, directing that an answer be filed, depositions be taken and scheduling argument thereon for April 26, 2005. Argument had to be rescheduled and was held on June 2, 2005. At that time, we improvidently treated Sperduti’s petition as a petition for leave to appeal nunc pro tunc from the judgment of the district justice. We now recognize our error and will treat Sperduti’s petition as exceptions or specifications of error to the record of District Justice Loschiavo.

In his petition, Sperduti alleges the following: He was not involved in the motor vehicle accident upon which Smith’s suit was based; he was never served with a copy of the complaint; he never received notice of the hearing before District Justice Loschiavo or the judgment entered by him; at the time the suit was instituted, he did not reside at either address listed on the police accident report; and he did not learn of the judgment until 1997 when he attempted to renew his drivers’ license.

The Rules of Civil Procedure governing actions before district justices authorize an aggrieved defendant to file a praecipe for a writ of certiorari claiming that the judgment should be set aside for several reasons: lack of jurisdiction over the parties or the subject matter; improper venue, or such gross irregularity of procedure as to make the judgment void. See Pa.R.C.P.D.J. 1009(A). That rule goes on to provide

“If lack of jurisdiction over the parties or the subject matter is claimed, the praecipe may be filed at any tune after judgment. Otherwise, it shall be filed within 30 days after the date of the judgment.” Pa.R.C.P.D.J. 1009(B). (emphasis added)

This rule codifies decisional law that a time limit prescribed for the issuance of a writ of certiorari to a judgment of a former justice of the peace does not apply to a judgment which is void for want of jurisdiction. Atkins v. Flaherty, 189 Pa. Super. 550, 152 A.2d 280 (1959). That case also announced the rule that, on a writ of certiorari, the court is bound by the facts as set forth in the transcript and cannot consider other testimony. 189 Pa. Super, at 550, 152 A.2d at 281.

If we were limited to the rule in Atkins v. Flaherty, supra, both parties and the court would be in a dilemma. This is for the reason that, because the record of the district justice had been properly destroyed by the time the praecipe for the writ of certiorari was filed, there is no record for us to review. Thus, there is seemingly irreconcilable conflict between Pa.R.C.P.D.J. 1009(B), which permits a praecipe for a writ of certiorari anytime after judgment where lack of jurisdiction is claimed, and the record retention and disposition schedule of our Supreme Court. Our choices would be limited to a quashing of the writ as untimely filed, notwithstanding Pa.R.C.P.D.J. 1009(B) because there is no record to review.

However, in a more recent opinion, our Superior Court has modified the rule of Atkins v. Flaherty, sub silentio. In Anzalone v. Vormack, 718 A.2d 1246, 1249 (Pa. Super. 1998), the Superior Court observed that an extrinsic attack on the constable’s return of service can be made, restricted to those facts in the return that are matters of which the constable presumptively had no personal knowledge. In other words, evidence can be produced to attack the record as to matters not within the personal knowledge of the process server. Thus, if appropriate to do so, we can consider evidence beyond the record of the district justice to determine the issue with regard to those facts not within the personal knowledge of the district justice. The record of the judgment at no. 785 of 1986 DSB establishes that the district justice had mailed a copy of the complaint to Sperduti by certified mail.

As we observed hereinabove, the original process was mailed to Sperduti. In this connection, the district justice is authorized to serve original process by certified or registered mail when such service is permitted by the rules. Pa.R.C.P.D J. 307(3). The Civil Rules Governing Practice before a District Justice authorize service by mail. Rule 308 provides:

“Service of the complaint upon an individual defendant shall be made:...
“(3) by mailing a copy to the defendant. The return receipt card for certified or registered mail shall be marked ‘Restricted delivery,’ and the return receipt shall show the signature of the defendant or an agent of the defendant authorized in writing to receive his restricted delivery mail. If the signature on the return receipt is that of a person other than the defendant, it shall be presumed, unless the contrary is shown, that the signer was an agent of the defendant authorized in writing to receive his restricted delivery mail.” Pa.R.C.P.D.J. 308(3).

Because we had issued a rule to show cause under Pa.R.C.P. 206.5, the parties took the deposition of Sperduti. In addition, counsel for both parties have attached exhibits to the deposition, to their pleadings and to their briefs. From that record, we are able to conclude the following: On April 28, 1986, District Justice Loschiavo mailed a copy of the complaint to Sperduti by certified mail to one of his addresses listed on the police accident report, which was identified as a “new address,” 100 Grand Avenue, Aliquippa. We do not know whether the return receipt card was marked “Restricted delivery” or whether Sperduti or someone else signed the return receipt. Sperduti claims to have been residing at 813 Mac Arthur Drive, Pittsburgh, PA 15228 at the time the complaint was filed and mailed in April 1986. Flowever, his date of birth and operator’s license number were correctly recorded on the police accident report, as well as his “new address.” In addition, he received the notice of suspension for nonpayment of the judgment from the Bureau of Drivers’ Licensing because he surrendered his license to the bureau on January 19, 1987.

Thus, Sperduti had knowledge that a judgment had been entered against him long before the records of that judgment were destroyed. Yet he did nothing to investigate and contest that judgment until long after the records were destroyed. Had he done so, the court could then have determined from the record whether or not he had been properly served. Because of his failure in this regard, the equities do not run in his favor. If it was clear that Sperduti did not and could not have known about the judgment, we would conclude otherwise.

Because of the peculiar facts of this case, we conclude that, by his inaction, Sperduti has waived the right to contest jurisdiction. It is now almost 20 years since the accident occurred and over 19 years since the judgment was entered. The district justice who entered the judgment is deceased and unavailable to testify as to the service of process, even if he could remember. The investigating police officer, if still available, undoubtedly could not recall if Sperduti was the individual involved in the accident and had supplied the address to him. Under these circumstances, Sperduti should not now be entitled to do what he could easily have done so many years ago.

An appropriate order is attached.

ORDER

For the reasons set forth in the attached opinion, the writ of certiorari is quashed.


author: O’DELL SENECA, P.J.,

text:
    Rosborough v. Farmers Mutual Fire Insurance Company of McCandless Township

      C.P. of Washington County,
    no. 2000-4619.

      Paul A. Tershel, for plaintiffs.

      Kevin S. Burger, for defendant.
    July 29, 2005
   O’DELL SENECA, P.J.,

This matter comes before the court on plaintiffs’ complaint for bad faith seeking compensatory and punitive damages against defendant Farmers Mutual Fire Insurance Company of McCandless Township. After a full trial and in consideration of the testimony, voluminous documentary evidence and pleadings, this court finds in favor of plaintiffs and against defendant. The parties stipulated to the following facts:

(1) On April 4, 2000, plaintiffs, David and Gay Rosborough, were the legal owners of the property located at 498 Springdale Road, Eighty-Four, Washington County, Pennsylvania.
(2) On April 4, 2000, the plaintiffs had a policy of insurance with defendant for property damage, including claims for fire loss, covering the property at 498 Springdale Road, Eighty-Four, Washington County, Pennsylvania, as evidenced by joint exhibits “I” and “II.”
(3) Plaintiffs’ payment for premiums on the policy were current as of April 4, 2000.
(4) Plaintiffs reported the April 4, 2000 fire at 498 Springdale Road, Eighty-Four, Washington County, Pennsylvania to defendant on April 5, 2000.
(5) The estimate of damage to plaintiffs’ property at 498 Springdale Road, Eighty-Four, Washington County, Pennsylvania, a result of the April 4,2000 fire, is undisputed and totals $38,760.86.
(6) Defendant denied plaintiffs’ claim for fire loss benefits under the policy by letter dated September 18,2000, as evidenced by joint exhibit “HI.”
(7) Criminal charges arising from the April 4, 2000 fire at 498 Springdale Road, Eighty-Four, Washington County, Pennsylvania were never filed against the plaintiffs.
(8) Jon Lamotte pled nolo contendere to the arson charges filed against him, arising from the April 4,2000 fire at 498 Springdale Road, Eighty-Four, Washington County, Pennsylvania on June 13, 2003.
(9) No evidence exists that Jon Lamotte ever implicated plaintiffs in the April 4, 2000 arson at 498 Springdale Road, Eighty-Four, Washington County, Pennsylvania.

This court finds that plaintiffs’ witnesses were credible and makes the following:

FINDINGS OF FACT

(1) Plaintiffs had a mortgage on the realty at 498 Springdale Road, Eighty-Four, Pennsylvania, at approximately $700 per month. Their tenant, Jon Lamotte, was given credit for work done on the premises, after which he paid $600 per month rent. Mr. Lamotte became delinquent in his rental, but plaintiffs took no action to evict him prior to the fire.
(2) In 1999, the plaintiffs purchased a marital home situate at Rural Route #1, Box 124-A, Graysville, Pennsylvania, which also had a mortgage on it.
(3) On April 5, 2000, defendant hired Castle Claims to adjust the fire loss. Greg McQueen of Castle Claims inspected the premises, took photographs, took the statement of Mr. Lamotte, spoke to fire personnel of the Finley ville Fire Department. He obtained an estimate for repairs from Disaster Restoration Services and okayed the repairs on April 24, 2000. After speaking to the fire marshal on April 27,2000, Disaster Restoration Services was instructed not to commence the repair work.
(4) A cause and origin report was prepared by Cypher & Associates at the request of Mr. McQueen which indicated that the cause of the fire was unknown.
(5) Mr. Lamotte’s insurance company, Erie Insurance Group, retained West Investigators to perform a cause and origin investigation which concluded the fire was incendiary with the area of origin in bedroom two and noted that a lamp was used as an external heat ignition source. Shortly thereafter, Mr. Lamotte withdrew his claim.
(6) The April 4, 2000 fire was investigated by Pennsylvania State Police Trooper Charles Frye, who suspected two points of origin in the presence of accelerants and determined the fire was incendiary in nature.
(7) Plaintiffs’ accounts, vis-a-vis their statements to defendant’s agents, were consistent and documentary evidence existed to support same. This court found their testimony to be totally credible.
(8) Defendant’s sole basis for denying the plaintiffs’ claim was that they were involved in the April 4, 2000 arson via the statement of Colleen Stoneking, taken by Samuel Zets.
(9) There is no evidence to establish that the plaintiffs had any motive to be involved in the subject arson.
(10) John Wall, Esquire, Samuel Zets, Esquire, and the law firm of Burns, White and Hickton were hired to assist in the defendant’s investigation of the instant fire claim, and as such, were agents of the defendant acting within the scope of business for Farmers Mutual Fire Insurance Company of McCandless Township.
(11) Attorneys Wall, Zets, and their law firm were not hired to offer legal advice, nor did they render a legal opinion concerning the plaintiffs’ fire claim.
(12) Ronald McKinney was the claims adjuster and manager for defendant in this matter and acted within the scope of business for Farmers Mutual Fire Insurance Company of McCandless Township.
(13) In determining the course of plaintiffs’ claim investigation, Mr. McKinney worked in conceit with Attorneys Wall and Zets. However, Mr. McKinney had the sole authority and, in fact, was the person who made the decision to deny the fire claim.
(14) Farmers Mutual Fire Insurance Company of McCandless Township is a mutual company whereby its assets are owned by the policyholders during any given policy period. It has approximately 3,600 policies in effect each year with approximately $3.4 million a year in written premiums, and pays out approximately 40 percent of same in any given year. Defendant has approximately $1.4 million in surplus.
(15) The defendant’s board of directors had no involvement in the decision to deny plaintiffs’ claim since Mr. McKinney did not report claims issues to them.
(16) Attorney Wall conducted an examination under oath of both plaintiffs per the directive of Mr. McKinney and reported the following to him: “the testimony of Mr. Rosborough closely paralleled that of his wife, despite the fact that he was not present when Mrs. Rosborough was questioned. ”
(17) Thereafter, Mr. Wall and Mr. McKinney requested financial records, employment records, banking records, phone records and other miscellaneous documentary evidence from the plaintiffs, which was supplied.
(18) There is no evidence to support the contention that the plaintiffs set the fire; directed anyone to set the fire; or assisted Jon Lamotte in setting the fire at the subject premises.
(19) Defendant’s reliance upon Colleen Stoneking’s statement as the main reason to deny plaintiffs’ fire claim was insufficient as admitted by the defendant’s expert, Charles J. Herman, Esquire.
(20) Colleen Stoneking’s testimony revealed the following:
(a) She could not identify who she saw with Mr. Lamotte on the day of the fire;
(b) She could not be certain about the time that she passed the subject premises on April 4, 2000;
(c) She denied ever placing the plaintiffs at 498 Springdale Road, Eighty-Four, Pennsylvania, on the date of the fire; and,
(d) She had no personal knowledge of the events concerning the fire, nor had any evidence to implicate the plaintiffs in this arson.
(21) An independent eyewitness, Joanna Gorman, testified on behalf of the plaintiffs as follows:
(a) At the time of the fire, she was a next door neighbor to the realty located at 498 Springdale Road, Eighty-Four, Pennsylvania, with a clear view of the said property;
(b) Consistent with plaintiffs’ testimony, she saw the Rosboroughs’ vehicle parked in the 498 Springdale driveway at 11:30 a.m. and it was gone between 1 and 1:15 p.m. that day. However, another vehicle owned by Kathy Murray was on site at that time;
(c) At 2:15 p.m., no vehicles were present and between 2:35 and 2:45 p.m., the house was closed and no activity could be seen; and,
(d) At 3 p.m., a passerby stopped at her house and reported that 498 Springdale Road was on fire. Ms. Gorman called 911.
(22) Attorney Wall and Mr. McKinney were both aware of Ms. Gorman’s knowledge concerning the activity at 498 Springdale Road on the day of the fire, and never revealed this information to plaintiffs or their legal counsel.
(23) Attorney Zets documented the statements of Joanna Gorman’s parents, but none of the information from Ms. Gorman, even though she was present at the time Mr. Zets took their statements.
(24) Defendant failed to send a reservation of rights letter to plaintiffs and failed to provide 30- and 45-day status letters to plaintiffs in violation of the Pennsylvania Insurance Department Standards and Regulations.
(25) Defendant issued an improper cancellation of plaintiffs’ coverage prior to the conclusion of the fire claim investigation, as well as sent an improper denial letter to plaintiffs in violation of the Pennsylvania Insurance Department Standards and Regulations.
(26) The defendant’s conduct in investigating the plaintiffs’ fire claim constitutes bad faith and is in violation of the Pennsylvania Bad Faith Statute, 42 Pa.C.S. §8371 et seq., due to the following:
(a) Its agents, being Wall, Zets, and/or McKinney, did not conduct an objective investigation of plaintiffs’ fire claim;
(b) Their handling of the instant claim was biased and reckless and appeared to the court to have a goal of denying same;
(c) They failed to conduct an additional investigation when armed with information that directly contradicted the Stoneking statement;
(d) Defendant’s agent unilaterally modified the Stoneking statement without her knowledge or consent;
(e) The billing records of Mr. Zets revealed that his goal was to form, a “strategy towards building a case with time sheet records” against plaintiffs;
(f) Mr. McKinney was advised via written correspondence of Mr. Wall that it was important that the person taking the statement of Ms. Stoneking know the “exact time” of the fire, obviously to plant a seed of doubt against the plaintiffs and to lead Ms. Stoneking to her conclusion as to time; and,
(g) The violations of the Pennsylvania Insurance Department Standards and Regulations as stated above.
(27) This court finds that the foregoing conduct on the part of Farmers Mutual Fire Insurance Company of McCandless Township, through its agents, was outrageous. Same was exacerbated by Mr. McKinney’s continual denial of plaintiffs’ claim up to and including trial, even though he had information contradicting the Stoneking statement, documentary evidence to support the plaintiffs’ statements, knew of the disposition of Jon Lamotte’s criminal case and his affidavit, and after this court granted partial summary judgment to plaintiffs. Further, defendant’s agents not only failed to conduct additional investigation, but made no attempt to reconcile the apparent conflicts between Ms. Stoneking’s statement and the additional documentary evidence and statements.
(28) This court notes that defendant failed to produce the initial draft of Ms. Stoneking’s statement, any notes taken by Mr. Zets while interviewing Ms. Stoneking for her statement, the notes of any conversations among its agents, and the billing statements subpoenaed by plaintiffs were produced only after presentation of a motion to compel with this court.
(29) The failure of defendant to disclose information that was potentially harmful to its case is further evidence of outrageous conduct.
(30) The insurance policy of NAMICO providing coverage to Farmers Mutual is admissible for the purpose of determining the net worth of Farmers Mutual.
(31) The real estate located at 498 Springdale Road, Eighty-Four, Washington County, Pennsylvania, increased in value subsequent to their lease agreement with Jon Lamotte, as the latter made improvements to the home including a new roof and remodeled kitchen.
(32) Plaintiffs were forced to sell their fire-damaged home on May 21, 2001, at a loss due to the defendant’s continued denial of their claim.
(33) Without payment of their claim, plaintiffs were unable to repair the fire-damaged home, forced to deplete their savings and became delinquent in their mortgage payments resulting in two foreclosure actions being filed.
(34) Subsequently, plaintiffs were forced to file bankruptcy in November 2004, to save their marital residence situate in Graysville, Greene County, Pennsylvania.
(35) Plaintiffs are entitled to the amount of fire damage to their property at 498 Springdale Road, Eighty-Four, Pennsylvania, in the amount of $38,760.86.
(36) Pursuant to the Pennsylvania Bad Faith Statute, 42 Pa.C.S. §8371, plaintiffs are entitled to attorney’s fees and punitive damages as a result of defendant’s continual denial of plaintiffs’ fire claim.

This court makes the following:

CONCLUSIONS OF LAW

(1) When an insurance company denies a claim for a fire loss based upon the insured’s fraudulent connection with the cause of the fire, such connection must be established by a preponderance of the evidence. Ruttenberg v. Fire Association of Philadelphia, 122 Pa. Super. 363, 186 A. 194(1936).
(2) Where there is no direct evidence of the insured’s arson, the fact-finder is permitted to draw reasonable inferences from the circumstantial evidence. Sperrazza v. Cambridge Mutual Fire Insurance Co., 313 Pa. Super. 60, 459 A.2d 409 (1983).
(3) The fact-finder should consider a combination of evidence in an incendiary fire, including the motive of the insured, opportunity and circumstantial evidence connecting the insured to the fire. Mele v. All Star Ins. Co., 453 F. Supp. 1388 (E.D. Pa. 1978).
(4) The elements need not be proven, but are things which should be considered. Specifically, motive need not be proven as a separate element. Giambra v. Aetna Casualty and Surety Co., 315 Pa. Super. 231, 461 A.2d 1256 (1983).
(5) To support a finding of bad faith, the insured must show that the insurer breached its duty of good faith to some motive of self interest or ill will. Bad faith must be shown by clear and convincing evidence. Brown v. Progressive Insurance Co., 860 A.2d 493 (Pa. Super. 2004).
(6) Mr. McKinney, Mr. Wall, and Mr. Zets were acting within the scope of their duties as employees and/or agents of defendant while investigating and/or handling plaintiffs’ fire claim. Their conduct was reckless, biased, and outrageous.
(7) Defendant is vicariously liable for the bad faith actions of its three employees and/or agents.
(8) The Bad Faith Statute, 42 Pa.C.S. §8371, is applicable to the facts herein and provides the following:
“In an action arising under an insurance policy, if the court finds that an insurer has acted in bad faith toward the insured, the court may take all of the following actions:
“(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3 percent.
“(2) Award punitive damages against the insurer.
“(3) Assess court costs and attorney fees against the insurer.”

Based on the foregoing, the court enters the following:

VERDICT

And now, July 29, 2005, this court finds in favor of plaintiffs and against defendant in the amount of $38,760.86 compensatory damages, plus interest from April 5,2000, at prime, plus 3 percent, plus costs in the amount of $6,517.18, plus attorneys’ fees in the amount of $186,843 and punitive damages in the amount of $100,000.


author: CHESLOCK, J,

text:
    Mazza v. Ski Shawnee Inc.

      C.P. of Monroe County,
    no. 10506 CV 2004.

      Eric W. Wassel, for plaintiffs.

      Hugh M. Emory, for defendant.
    June 29, 2005
   CHESLOCK, J,

Plaintiffs Jean Mazza and Mark Mazza, h/w, commenced this action by complaint filed on December 29,2004. The complaint seeks damages for personal injuries stemming from a snow tubing accident which occurred on January 10,2003. The complaint avers that plaintiff Jean Mazza’s snow tube broke loose from the tubing lift, causing her to be catapulted over an embankment, resulting in significant personal injuries. On February 11, 2005, defendant Ski Shawnee Inc. filed an answer with new matter. On April 25, 2005, defendant filed a motion for judgment on the pleadings. Defendant filed a brief in support of its motion on May 17, 2005. Plaintiffs filed their brief in opposition to defendant’s motion for judgment on the pleadings on June 1,2005. We heard oral arguments from counsel on June 6,2005, and we are now prepared to dispose of this matter.

Pa.R.C.P. 1034 provides as follows:

“(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.
“(b) The court shall enter such judgment or order as shall be proper on the pleadings.”

Pa.R.C.P. 1034 provides for a motion for judgment on the pleadings to be used to test whether such a cause of action as pleaded exists at law. Bensalem Township School District v. Commonwealth of Pennsylvania, 518 Pa. 581, 544 A.2d 1318 (1988). Ajudgment on the pleadings may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Kosor v. Harleysville Mutual Insurance Company, 407 Pa. Super. 68, 595 A.2d 128 (1991). In determining if there is a dispute as to facts, the court must confine its consideration to the pleadings and relevant documents. DiAndrea v. Reliance Savings and Loan Association, 310 Pa. Super. 537, 456 A.2d 1066 (1983). “The court must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.” Conrad v. Bundy, 777 A.2d 108, 110 (Pa. Super. 2001).

The pleadings establish that Mazza signed two releases, one provided by defendant and the other provided by the Fraternal Order of Eagles who arranged to use the snow tubing facility on January 10,2004. Plaintiffs agree that Mazza signed a “Snow tubing acknowledgement of risk and agreement not to sue” (release) which was provided by defendant. The release contains the following language, in relevant part:

“Snow Tubing Acknowledgement Of Risk And Agreement Not To Sue This Is A Contract Read It!
“(1)1 understand and acknowledge that snow tubing is a dangerous, risk sport and that there are inherent and other risks associated with the sport and that all of these risks can cause serious and even fatal injuries....
“(3)1 acknowledge and understand that some, but not necessarily all, of the risks of snow tubing are the following: ...
“*the use of the snow tubing lift or tow, including falling out of a tube, coasting backwards, becoming entangled with equipment and other risks....
“(5) I agree and understand that snow tubing is a purely voluntary recreational activity and that if I am not willing to acknowledge the risks and agree not to sue, I should not go snow tubing.
“(6) In Consideration Of The Above And Of Being Allowed To Participate In The Sport Of Snow Tubing, I Agree That I Will Not Sue And Will Release From Any And All Liability Ski Shawnee Inc. If I Or Any Member OfMy Family Is Injured While Using Any Of The Snow Tubing Facilities Or While Being Present At The Facilities, Even If I Contend That Such Injuries Are The Result Of Negligence Or Any Other Improper Conduct On The Part Of The Snow Tubing Facility.
“(7) I Further Agree That I Will Indemnify And Hold Harmless Ski Shawnee Inc. from any loss, liability, damage or cost of any kind that may incur as the result of any injury to myself, to any member of my family or to any person for whom I am signing this agreement, even if it is contended that any such injury as caused by the negligence or other improper conduct on the part of Ski Shawnee Inc.
“(10) I have read and understood the foregoing acknowledgement of risks and agreement not to sue and am voluntarily signing below, intending to be legally bound thereby.”

Mazza also signed a release form from the Eagles which provides, in relevant part:

“(1) The Eagle member and guest agrees and understands that snow tubing is an inherently dangerous sport. Trail conditions vary constantly because of weather conditions and snow tubing and other obstacles and hazards may exist throughout the area. The member voluntarily assumes the risk of injury while participating in the sport. In consideration of using Shawnee Mountain snow tubing facilities the user agrees to accept the risks and agrees not to sue F.O.E. no. 1106 or Ski Shawnee Inc. or its employees or agents if hurt while using the facility regardless of any negligence of F.O.E. no. 1106 or Ski Shawnee Inc. or its employees or agents. . . . The user voluntarily assumes the risk of injury while participating in the sport....
“(3) I have read and understand the foregoing regulations and release agreement and am voluntarily signing below intending to be legally bound thereby.”

The standard of review for a valid release agreement is set forth in Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978), affirmed, 490 Pa. 428, 416 A.2d 1010 (1980) (citation omitted); see also, Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 447, 603 A.2d 663, 665 (1992). The Superior Court in Zimmer set forth the following four-part test to determine the validity of exculpatory clauses:

(1) The contract must not violate any policy of the law;
(2) The contract must be between individuals and relate to their private affairs;
(3) Each party must be a free bargaining agent rather than one drawn into a contract of adhesion;
(4) The agreement must express the intent of the parties with the utmost particularity. 253 Pa. Super, at 478, 385 A.2d at 439.

As a general rule, exculpatory disclaimers between private parties are enforceable in Pennsylvania and are not viewed as violating public policy. Missar v. Camelback Ski Resort, 30 D.&C.3d 579, 581 (Monroe Cty. 1984). An exculpatory clause is defined as “a contractual provision relieving a party from any liability resulting from a negligent or wrongful act.” Black’s Law Dictionary, 240 (Pocket ed. 1996).

In similar cases, our court has upheld that the release language on the back of the ticket constitutes a valid waiver of liability. See generally, Venn v. Shawnee Mountain Ski Area, 5109 Civil 2002 (Monroe Cty. 2004) (Vican, P.J.); King v. Resorts USA Inc. d/b/a Rank Anhert, 8937 Civil 2001 (Monroe Cty. 2003) (O’Brien, J.); Catanna v. Camelback Ski Corp, 1340 Civil 1992 (Monroe Cty. 2001) (O’Brien, J.); Lee v. Camelback Ski Corp. a/k/a Camelback Ski Area, 8324 Civil 2001 (Monroe Cty. 2002) (Miller, J.); and Nisbett v. Camelback Ski Corp., 2226 Civil 1992 (Monroe Cty. 1996) (Miller, J.). We have held that if an exculpatory agreement meets the four-prong test set forth in Zimmer, then the agreement is valid and enforceable.

In the instant case, we believe that the release does not violate any public policy. First, it is between private parties and relates to their private affairs. Second, we find that it is not a contract of adhesion, the language on the release is clear that if the person is not willing to acknowledge the risks and agree not to sue, he/she should not go snow tubing. (Release ¶5.) Mazza was not required to enter into the contract, but she did so voluntarily in order to snow tube at the facility. The language contained on the release is conspicuous and expresses the intent of the parties with the requisite particularity. Furthermore, Mazza’s decision to go snow tubing was an activity which is not essential to plaintiff’s personal or economic well-being but was purely a recreational activity. See Kotovsky, supra at 447, 603 A.2d at 665. An activity is purely recreational if it is not essential to one’s personal or economic well-being. Kotovsky, supra at 447, 603 A.2d at 665. (citation omitted)

Plaintiffs argue that we must deny defendant’s motion because the language contained in the release did not specifically exculpate itself from liability relating to the design of the facility and the lift mechanism. We do not agree. The release specifically set forth that there are many inherent dangers involved in snow tubing. The release specifically identifies the use of the snow tubing lift or tow. Further, Mazza signed the release which specifically sets forth that, even if it is contended that any such injury as caused by the negligence or other improper conduct on the part of Ski Shawnee Inc., she agrees to release and not sue defendant. Moreover, we are not bound by the holding in Martin v. Montage Mountain, 46 D.&C.4th 225 (Lackawanna Cty. 2000), the case cited by plaintiffs. The Martin case involved a plaintiff who signed a release which was specific that he would not sue for damages related to the use of a snow tube or lift. Id. at 230. Instantly, we believe that the release was clear that Mazza would not sue for any injuries resulting while using any of the snow tubing facilities or from any injuries sustained while present at the facilities.

For these reasons, we find that judgment on the pleadings may be entered due to the lack of disputed issues of fact and defendant is entitled to judgment as a matter of law. Accordingly, we entered judgment on the pleadings in favor of defendant.

ORDER

And now, June 29, 2005, upon consideration of defendant’s motion for judgment on the pleadings and any response thereto, it is hereby ordered and decreed that defendant Ski Shawnee Inc.’s motion for judgment on the pleadings is hereby granted and judgment is entered in favor of defendant, Ski Shawnee Inc., and against plaintiffs, Jean Mazza and Mark Mazza.