author: SHEPPARD JR., J.,

text:
    IEJ Corporation v. Laserow

      Edwin M. Goldsmith III, for plaintiffs.

      Jonathan K. Hollín, for defendants.
    October 25, 2005
   SHEPPARD JR., J.,

In this action plaintiffs, IEJ Corporation and Ilyas M. Shah a/k/a Alberto Del Bello are suing defendants, Irving J. Laserow CPA and Bassman, Laserow, Stembert & Buckman P.C. a/k/a Bassman, Laserow & Co., alleging accountant malpractice. Presently before the court are the parties’ respective motions for summary judgment. For the reasons discussed, defendants’ motion for summary judgment is granted and plaintiffs’ motion for summary judgment is denied.

BACKGROUND

Ilyas M. Shah a/k/a Alberto Del Bello is the sole owner and chief operating officer of IEJ Corporation. IEJ Corporation owns and operates II Portico Restaurant in Philadelphia. Defendants are accountants who represented plaintiffs in a City of Philadelphia tax audit which began in 1998 and concluded in August 1999. On August 23, 1999, the City of Philadelphia forwarded an audit notice to IEJ Corporation, which was received on August 26, 1999. The audit resulted in an increase in IEJ Corporation’s tax liability for the years 1995 to 1997, assessing additional taxes in the amount of $72,393.32, plus interest of $11,166.41 and penalties of $22,529.19, for a total obligation of $106,088.92.

On or about September 3, 1999, Shah instructed IEJ Corporation’s bookkeeper, Ingrid Villegas, to fax the audit notice to Fred Loew of Bassman Laserow. (Exhibit “I”; exhibit “J” March 10, 2005 pp. 34-35.)

Sometime in October 1999, the accountant-client relationship between plaintiffs and defendants ended. The parties dispute the exact date the relationship terminated. According to plaintiffs’ motion and attached time records, there are no activity listings after November 1999. Further, the account ledger also attached to plaintiffs’ motion shows no change in the account receivables after the period ending September 30, 1999. Plaintiffs hired Frank J. Vellucci CPA as its new accountant. Vellucci began performing services for plaintiffs in October 1999. (Exhibit “J” dfts. mt. for SJ; dep. of Frank J. Vellucci, p. 34.)

From August 23, 1999 to Februaiy 2002, the City of Philadelphia forwarded numerous tax delinquent notices to plaintiffs which included the assessed taxes plus additional delinquent taxes, interest and penalties that had accrued. Shah described the delinquent notices as a “rain shower of notices.” (Exhibit “B” dfts. mt. for SJ; dep. of Shah, p. 306.)

On February 25, 2002, the City of Philadelphia instituted suit against plaintiffs for the delinquent taxes, assessed as a result of the audit. The city obtained summary judgment in the amount of $169,000 against IEJ Corporation on July 10, 2002. No judgment has been entered against Shah.

On March 4, 2004, plaintiffs instituted this malpractice action against defendants, alleging that defendants failed to properly represent plaintiffs in the city audit, failed to handle the necessary appeal or take the steps necessary to permit plaintiffs’ appeal, and misrepresented the status of the audit. In September 2004, plaintiffs filed a second amended complaint asserting claims for negligent malpractice (Count I), contractual malpractice (Count II), negligent misrepresentation (Count III) and breach of fiduciary duty (Count IV). Defendants filed a counterclaim, seeking to recover $23,061 which represents the outstanding balance due on services rendered as of October 1, 1999.

The parties have now filed motions for summary judgment based on the statute of limitations.

DISCUSSION

I. Standard of Review

Pennsylvania Rule of Civil Procedure 1035.2 provides two bases for the entry of summary judgment prior to trial. Summary judgment may be properly granted while discovery is still pending where “there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report.” Manzetti v. Mercy Hospital of Pittsburgh, 741 A.2d 827, 831 (Pa. Commw. 1999) (quoting Pa.R.C.P 1035.2(1)). Additionally, “after the [close] of discovery relevant to the motion, [summary judgment is also appropriate if] an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action . . . which in a jury trial would require the issues to be submitted to a jury.” Matthews v. Clarion Hospital, 742 A.2d 1111, 1115, (Pa. Super. 1999) (quoting Pa.R.C.P. 1035.2(2)).

The moving party bears the burden of proving the nonexistence of any genuine issue of material fact. Walinsky v. St. Nicholas Ukrainian Catholic Church, 740 A.2d 318, 320 n.3 (Pa. Commw. 1999). In determining whether to grant summary judgment, a trial court must examine the record in a light most favorable to the non-movant and resolve all doubts against the moving party. Doe v. Philadelphia Community Health Alternatives Aids TaskForce, 745 A.2d 25, 27 (Pa. Super. 2000). The entry of summary judgment is warranted only in those cases where the right is clear and free from doubt. Kee v. Pennsylva nia Turnpike Commission, 743 A.2d 546, 549 (Pa. Commw. 1999).

II. Defendants ’ Motion for Summary Judgment Is Granted Since the Statute of Limitations Bar Plaintiffs ’ Tort and Contract Claims

Defendants move to dismiss plaintiffs’ claims on the ground of the applicable statutes of limitations. Plaintiffs’ claims sound both in tort (negligence, negligent misrepresentation and breach of fiduciary duty) and in contract. The applicable statutes of limitations are two and four years, respectively. See 42 Pa.C.S. §§5524, 5525.

Defendants argue that the statute of limitations began to run on August 26, 1999, the date plaintiffs received the audit notice from the city. Defendants contend that at that time plaintiffs knew or should have known that the defendants’ erroneous advice had caused them injury.

Plaintiffs, on the other hand, maintain that they did not know they were injured by defendants until February 2002 when the City of Philadelphia filed the action seeking payment for the delinquent amount assessed. Plaintiffs assert that the defendants led them to believe that the audit had not been completed.

Generally, the statute of limitations begins to run “as soon as the right to institute and maintain a suit arises ... Pocono International Raceway Inc. v. Pocono Produce Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). In other words, the statute of limitations is “triggered upon the occurrence of the alleged breach of duty.” Bigansky v. Thomas Jefferson University Hospital, 442 Pa. Super. 69, 76, 658 A.2d 423, 426 (Pa. Super. 1995). “[Ljack of knowledge, mistake, or misunderstanding does not toll the running of the statute of limitations ....” Pocono International Raceway v. Pocono Produce, 503 Pa. 80, 84, 468 A.2d 468, 471 (1983).

One exception to the general rule is the “discovery rule.” The discovery rule is applicable when a plaintiff is completely unable, despite the exercise of due diligence, to discover an injury. Colonna v. Rice, 445 Pa. Super. 1, 664 A.2d 979 (1995). The “discovery rule” provides that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible.

Our Supreme Court has explained that “reasonable diligence” is not an absolute standard. Fine v. Checcio, 582 Pa. 253, 267, 870 A.2d 850, 858 (2005). Rather, reasonable diligence is “what is expected from a party who has been given reason to inform himself of the facts upon which his right to recovery is premised.” Id. Although reasonable diligence is an objective test, it must remain “sufficiently flexible ... to take into account the differences between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question.” Id. A party’s actions must be evaluated to determine “whether he exhibited those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interest and the interest of others.” Id.

When presented with an assertion that the discovery rule applies, a court must address the ability of the damaged party, exercising reasonable diligence, to ascertain that he has been injured and by what cause. Id. Because this question involves a factual determination as to whether a party was able, in the exercise of reasonable diligence, to know of his injury and its cause, ordinarily it is a question for the jury. Id. However, where reasonable minds would not differ in finding that a party knew or should have known on the exercise of reasonable diligence of his injury and its cause, the court determines as a matter of law that the discovery rule does not apply. Id.

In addition to the discovery rule, the doctrine of fraudulent concealment also tolls the running of the statute of limitations. Id. The doctrine is based on estoppel and provides that a defendant may not invoke the statute of limitations if, through fraud or concealment, he caused the plaintiff to relax his vigilance or deviate from his right of inquiry into the facts. The doctrine does not require “intent to deceive” but only “unintentional deception.” Fine, supra. Thus, the doctrine captures unintentional conduct on a defendant’s part. “Mere mistake, misunderstanding or lack of knowledge is insufficient however... and the burden of proving such fraud or concealment, by evidence which is clear, precise and convincing, is upon the asserting party.” Molineux v. Reed, 516 Pa. 398, 403, 532 A.2d 792, 794 (1987).

“[I]n order for fraudulent concealment to toll the statute of limitations, the defendant must have committed some affirmative independent act of concealment upon which the plaintiffs justifiably relied.” Kingston Coal Co. v. Felton Mining Co. Inc., 456 Pa. Super. 270, 284, 690 A.2d 284, 291 (1997). Thus, in determining whether the doctrine of fraudulent concealment tolls the statute of limitations, the court must focus on whether there has been some affirmative independent act of concealment on behalf of the defendants and, if so, whether plaintiffs justifiably relied on that affirmative independent act of concealment.

The reasonable diligence standard for determining the application of the discovery rule is the same threshold test for determining whether the doctrine of fraudulent concealment tolls the statute of limitations. Fine v. Checcio, 870 A.2d 850 at 860.

Here, plaintiffs rely upon both the discovery rule and estoppel (the doctrine of fraudulent concealment) to toll the statute of limitations for its claims against defendants. This court finds that plaintiffs failed to produce sufficient evidence to support the application of either exception.

A. The Discovery Rule

While a strict application of the limitations period would commence at the time the plaintiffs received the audit notice, that is August 26,1999, plaintiffs argue that they did not discover their injury until the City of Philadelphia served its suit on March 7,2002. In support, plaintiffs claim that from August 26, 1999 to March 7, 2002 the defendants assured them that the audit had not been completed. The evidence of record, however, does not support this position.

The record demonstrates that plaintiffs received notice of the assessment on August 26, 1999. The notice states, “The enclosed tax bill represents the additional tax due as a result of changes made in the course of our audit of your Philadelphia Business and/or Wage Tax Returns... If you do not agree with this assessment, you must file a petition before the Tax Review Board within 60 days after the mailing of the enclosed bill.” (Exhibit “C”.) Shah testified that he found the contents of this notice to be clear. (Exhibit “1” to dfits. reply to pits, response to dfits. mt. for SJ p. 268.)

Thus, as of August 26, 1999, plaintiffs possessed sufficient information to reasonably conclude that the audit was complete and that the appeal period expired within 60 days after the bill was mailed. The audit notice should have prompted plaintiffs to conduct some independent inquiry or investigation to ascertain whether the audit was, indeed, complete. Shah did take positive action in that he sent the notice to defendants. (Exhibit “I”.) Whether defendants responded to this fax is not dis-positive, since the audit notice dated August 26, 1999, was not the only notice plaintiffs received. Plaintiffs received numerous subsequent delinquency notices. These notices should have reasonably alerted plaintiffs that defendants had not taken any action with respect to the original notice. At this point, plaintiffs should have contacted the city or their new accountant. An injured party must use reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period. Here, the plaintiffs failed to do so.

This court submits that reasonable minds would find that plaintiffs should have known that defendants failed to take any action with respect to the notice within the appeal period and that harm would result. Accordingly, the court finds as a matter of law that the discovery rule does not apply to toll the statute of limitations.

B. Fraudulent Concealment

Plaintiffs also maintain that defendants should be es-topped from asserting the statute of limitations as a defense since they intentionally and willfully gave assurances to plaintiffs that the city audit had not been completed. In order to rely upon fraudulent concealment, plaintiffs must present evidence that is clear, precise and convincing. The only evidence relied upon by plaintiffs is an affidavit signed by defendant Irving H. Laserow CPA. The court finds that this affidavit fails to satisfy plaintiffs’ burden.

This affidavit was submitted in the enforcement action in April 2003, in order to defeat a motion for summary judgment filed by the city. It clearly constitutes a litigation tool used to support plaintiffs’ defense that they never received the notices.

A review of the affidavit reveals that it fails to describe any affirmative acts taken by Laserow or his accounting firm to mislead or divert plaintiffs’ attention from discovering whether the audit was complete. Notably absent are any averments by Laserow that he or any representative from defendants actually communicated with plaintiffs and informed them that the city’s audit was not complete. The affidavit does not say Laserow informed plaintiffs that the audit was incomplete or that he made such representations continually. Rather, it is a hindsight perspective of Laserow’s understanding of the audit’s status in April 2003. Plaintiffs’ reliance upon Laserow’s mistake, misunderstanding or lack of knowledge concerning the status of the audit as set forth in the affidavit is not sufficient evidence of fraudulent concealment See Molineux v. Reed, 516 Pa. 398, 402-403, 532 A.2d 792, 794 (1987).

Additionally, plaintiffs’ reliance upon the statements contained within the affidavit is not justified, particularly in light of the fact that plaintiffs continued to receive a “rain shower” of delinquent tax notices, terminated their accountant-client relationship with defendants as of October 1999, and hired a new accountant.

Since plaintiffs have failed to put forward any clear, precise or convincing evidence of affirmative, independent and continuous acts by defendants to divert or mislead them from discovering that the audit was complete, the court finds that the doctrine of fraudulent concealment does not apply.

Accordingly defendants’ motion for summary judgment is granted and the second amended complaint is dismissed against all defendants.

III. Plaintiffs ’ Motion for Summary Judgment Is Moot

Defendants filed a counterclaim against plaintiffs’ seeking to obtain payment for the balance of services provided to plaintiffs as of October 1999. Plaintiffs now move this court to dismiss said claim on the basis of the statute of limitations. In response, defendants argue that the claim is for setoff and recoupment in the event judgment is entered in plaintiffs’ favor on their claims against defendants. In that defendants’ motion for summary judgment is granted and disposes of all claims against plaintiffs, defendants’ counterclaim for setoff and recoupment is also dismissed. Accordingly, plaintiffs’ motion for summary judgment is denied as moot.

CONCLUSION

Based on the foregoing, defendants’ motion for summaty judgment is granted and plaintiffs’ second amended complaint is dismissed against all defendants and plaintiffs’ motion for summary judgment is denied.

A contemporaneous order consistent with this opinion will be entered of record.

ORDER

And now, October 25, 2005, upon consideration of defendants Irving Laserow CPAandBassman, Laserow, Sternberg & Buckman P.C. a/k/a Bassman, Laserow & Co. P.C.’s motion for summary judgment and plaintiffs’ motion for summaty judgment to defendants’ counterclaim, the respective responses in opposition and memoranda, all matters of record and in accord with the contemporaneously filed opinion, it is ordered that

(1) Defendants’ motion for summary judgment is granted and the second amended complaint is dismissed against all defendants.

(2) Plaintiffs’ motion for summary judgment is denied.

      . Defendants claim that they responded to this letter by phone and fax dated September 8,1999. (Exhibit “K.”) The letter informed Shah that the notice was the result of the city’s audit, that the last day to appeal was October 19, 1999, and that Shah should seek legal advice or inform his new accountant. Id. Plaintiffs dispute receiving this letter.

      . Although the transaction listing notes a meeting between Shah and plaintiffs on November 17, 1999, plaintiffs were not charged for this meeting. The entry provides “Meeting with A1 Shah at our office. A1 signed termination letter. Review city tax audit and all other outstanding tax and accounting issues.” (Exhibit “D” to pits. mt. for SJ.)

      . The pertinent portions of the affidavit state:
      “(3) The audit was never completed because the question of the time that these workers supposedly engaged by IEJ had not been resolved, and to my knowledge no final assessment occurred.
      “(4) On June 25,1999,1 wrote a letter and sent the attached letter to the auditor, Vivienne Pettus, on the assumption that no final assessment had been made.
      “(5) Ms. Pettus did not respond to my letter.
      “(6) I never received any notice of final assessment, nor do I have any knowledge that such a notice was sent to IEJ.” Exhibit “A”.


source: Caselaw Access Project

author: LEWIS, P.J.,

license: Public Domain

text:
    Rummel v. Cromwell

      John F. King, for plaintiff.

      John Ninosky, for defendant.
    October 5, 2005
   LEWIS, P.J.,

Presently before this court is defendant Vonnie L. Cromwell’s motion for summary judgment. The facts and procedural history of the case are as follows:

On March 12,2000, plaintiff, Debra Rummel was rear-ended by defendant, while plaintiff was a passenger in a Chevy Tahoe operated by her daughter, Mandy Rummel. Two days later, on March 14,2000, plaintiff saw her family physician, Robert R. Fierer M.D. with complaints of neck pain. Dr. Fierer diagnosed her with a cervical strain. Later that year, on August 31, 2000, plaintiff consulted with Dr. David Smith who found that plaintiff was suffering a cervical sprain and late whiplash syndrome. Plaintiff’s return to Dr. Smith on January 29, 2001 resulted in a guarded diagnosis, whereby Dr. Smith stated that plaintiff had a “marked chance of long-term medication or surgery.” Dr. Smith also noted that the delay in treatment had worsened her recovery. On April 12,2002, at the request of Dr. Fierer, an MRI was taken, which indicated that plaintiff had a herniated nucleus pulposus at C5-6 (neck vertebrae).

James Mclnerney M.D. conducted the most recent examination of plaintiff, on April 13, 2004. Dr. Mclnerney found that although the neck pain that plaintiff complained of was temporarily related to the auto accident, it would be difficult to say whether or not a causal relationship existed between the accident and her symptoms. Dr. Mclnerney concluded that a surgery to repair plaintiff’s herniated disc would be reasonable. Dr. Mclnerney emphasized again that it would be difficult to determine whether the surgery could rectify injuries caused by the accident, since degenerative processes to plaintiff’s cervical spine could have arose at any point in her life.

Plaintiffs filed a praecipe to issue a writ of summons on January 29,2003. The writ of summons was not served on defendant until it was reissued on September 17,2003 and served on September 26, 2003. On July 15, 2004, plaintiffs filed a complaint alleging the following: injuries to Mrs. Rummel’s neck (thoracic strain, cervical strain, neck stiffness, and muscle spasms), loss of strength in her hands and arms, numbness in both hands, herniated disc at C5-6, borderline carpal tunnel syndrome, and pain and suffering associated with the accident. Additionally, plaintiff’s husband Bryan E. Rummel claimed damages for the loss of consortium of his wife due to her injuries.

Defendant’s motion for summary judgment rests on two grounds: that plaintiffs’ action is barred by the statute of limitations, and that plaintiffs failed to put forth a good faith effort to effectuate notice of commencement of suit.

Summary judgment is warranted when there is “no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who bears the burden of proof at trial has failed to produce evidence essential to the cause of action or defense, which would require the issue to be submitted to the jury.” Pa.R.C.P. 1035.2. “Summary judgment may... be entered in favor of defendant when the plaintiff’s cause of action is barred by the statute of limitations.” Brooks v. Sagovia, 431 Pa. Super. 508, 511, 636 A.2d 1201, 1202 (1994).

Pursuant to 42 Pa.C.S. §5524, an action to recover for injuries resulting from the negligent action of another must commence within two years. However, because section 1705 of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1705, precludes individuals with a limited tort option insurance policy from making a claim for non-economic damages unless they are serious, the statute of limitations does not toll until they discover or are deemed to have discovered a serious injury. Walls v. Scheckler, 700 A.2d 532, 533 (Pa. Super. 1997). A serious injury is defined as a personal injury resulting in death, serious impairment of a bodily function or permanent serious disfigurement. 75 Pa.C.S. §1702. According to Washington v. Baxter; 553 Pa. 434, 719 A.2d 733 (1998), a finding of a serious impairment of a bodily function involves a two-prong threshold test. The first prong is whether the individual sustained an impairment of a bodily function as a result of the motor vehicle accident. The second part of the test is if the individual did sustain an impairment of a bodily function, whether the impairment was serious. This focus is not on the injury itself but on how the injury affects a particular bodily function. Generally medical testimony will be needed to establish the existence, extent and permanency of the impairment. Id.

Defendant argues that although plaintiff elected the limited tort option, she did not discover a serious injury within two years of the commencement of this suit, and therefore plaintiffs’ claim is barred by the statute of limitations. Defendant contends that the record provides no evidence that would indicate a serious impairment of a bodily function. Alternatively, defendant argues that if plaintiff did suffer a serious injury, she knew or should have known of the injury prior to January 29,2001 (two years prior to the commencement of this suit).

Conversely, plaintiff argues that the MRI conducted on April 19, 2002, indicated that plaintiff suffered serious injuries and therefore, it is on that date that the statute of limitations should begin to run.

This court finds that plaintiff Debra Rummel failed to meet her burden of showing that she received a serious injury which resulted from the automobile accident. The only evidence plaintiffs use to support their contention that plaintiff suffered a serious injury, comes from the MRI conducted on April 19, 2002. However, the report indicating the results of the MRI does not give any indication of the ramifications of the findings on plaintiff’s condition. The only medical diagnosis of plaintiff following the MRI is a letter dated April 13,2004, from Dr. Mclnerney, to plaintiff’s counsel addressing plaintiff’s condition. In this letter, Dr. Mclnerney, who had seen plaintiff in November of 2003, and then twice again in 2004, and had reviewed her MRI, stated that her neck was “certainly temporally related to the auto accident” but “it is difficult to say whether or not there is a causal relationship between this accident and her symptoms.” (See exhibit “E” of defendant’s brief in support of motion for summary judgment.) Therefore this court finds that plaintiff failed to meet the first requirement of the Washington test for a serious injury, by failing to show that a bodily function was impaired because of the automobile accident.

Because plaintiffs failed to meet the threshold requirements to show a serious injury, plaintiffs’ claim is barred by the statute of limitations and summary judgment for the defendant is warranted. This court will nonetheless still address the issue of whether the plaintiff knew or should have known of a serious injury before lanuary 29, 2001, two years prior to the commencement of this suit.

Even if the plaintiff is able to prove that she suffered from a serious injury, the plaintiff must assert that the serious injury was not one that she knew, or should have reasonably known, about more than two years prior to commencing this lawsuit. Walls v. Scheckler, 700 A.2d 532, 533 (Pa. Super. 1997).

Plaintiff’s medical records indicate that after her visit with Dr. Smith on August 31, 2000, she was aware of a cervical sprain and late whiplash syndrome, as well as pain and numbness in her hands and arms. Further, the fact that plaintiff was aware of her injuries is evidenced in the Disability Questionnaire filled out on August 28, 2000, where plaintiff indicated that her pain was constant and moderate, and that pain prevented her from lifting heavy weights, walking more than one mile, and sitting for more than one hour. Additionally, plaintiff expressed that pain restricted her social life, and that she could not sleep well unless she took medication. Plaintiff also indicated that her pain was not changing.

Further, plaintiff has an extensive medical history where she suffered pain and swelling in her hands as far back as 1995. Plaintiff also injured her left arm after being involved in a car accident in 1999. Currently, plaintiff asserts numbness to her hands and arms, and loss of grip strength as a result of the accident with the defendant. However, due to plaintiff’s long medical history of problems with her hands and arm, plaintiff cannot sufficiently establish a causal connection between her injuries and the accident with defendant.

This court finds that even if plaintiff established that she suffered a serious injury, her claim is still barred by the statute of limitations because she knew or should have known of her injuries before January 29, 2001.

Additionally, because this court finds that the statute of limitations bars plaintiffs’ claim, this court sees no need to make a determination on whether defendant was prejudiced by plaintiffs’ delay in serving defendant with the writ of summons.

Accordingly, the following is entered:

ORDER

And now, October 5, 2005, it is hereby ordered that defendant Cromwell’s motion for summary judgment is granted.

      . Herniated nucleus pulposus is a condition whereby part or all of the soft, gelatinous central portion of an intervertebral disc is forced through a weakened portion of the disc.


author: PEREZOUS, J,

text:
    In re Condemnation by the Manheim Township School District

      George T. Brubaker, Robert M. Frankhouser Jr. and Kevin M. French, for condemnor Manheim Township School District.

      James H. Thomas, for condemnee Ulrich.
    September 26, 2005
   PEREZOUS, J,

This matter is before the court on preliminary objections filed by the condemnee, Robert G. Ulrich, against the declaration of taking filed by the condemnor, Manheim Township School District. Specifically, the condemnee contends that the school district cannot exercise the power of eminent domain in this case because: (1) the school district has not provided sufficient justification for the taking and, thus, has not established legal “necessity”; and (2) the conversion of the property to a “non-agricultural use” conflicts with state policy. The condemnor, however, contends that there is no conflict with state policy, and that the condemnee has failed to show that the school district abused its discretion or acted in bad faith in condemning a portion of the condemnee’s property. For the following reasons, this court overrules the preliminary objections.

This case arises from the planned renovation of Manheim Township School District’s Neffsville Campus. The campus includes a middle school, high school and an elementary school. It also includes athletic fields that support educational and extracurricular programs. As the campus expanded over the years, a “myriad of twists, turns and roadways” were put in place to accommodate internal traffic circulation. Presently, there are four points of ingress and egress on the campus. On the north side, there is a two-way access off of Oregon Road. A second two-way access is located off of Route 501 on the west side of the campus. On the south side, there is a one-way entrance off of Valley Road with residential and commercial properties on each side. Farther to the west on Valley Road is a one-way exit that is directly adjacent to the elementary school. Another entrance off of Valley Road goes directly to the bus facilities. Via these routes, it is possible for a vehicle to go from one point of entry to any other point of access.

In 2001, the school district examined the efficiency and safety concerns exacerbated by the existing roadways and traffic conditions in connection with its plans to renovate the campus. Previous actions taken by the school district to address these concerns included placing speed bumps at various locations on the school roadways, modifying the traffic flow based upon the timing of students and others entering and leaving the campus, and limiting the traffic on the roadway next to the elementaiy school to one-way exiting traffic. As part of the renovation of the campus, the school district asked ELA Group, the civil engineers on the project, to review the current traffic conditions and propose alternatives for consideration by the school district.

This review identified a number of problems created by the present configuration of the roadways on and around the Neffsville Campus. The present traffic conditions at the campus, in terms of safety and proper traffic flow, were said to be unsafe and inefficient. In order to address these concerns, ELA Group considered two groups of alternatives: (1) maintaining the current access points in their present locations and making improvements at those locations; and (2) three options for changing the access on Valley Road. In reviewing the alternatives, ELA Group considered existing traffic conditions, safety and efficiency, the nature of the improvements that would need to be made, the school district’s proposed land development plan, the impact on adjoining properties, the potential for the loss of houses and businesses and the costs to the school district.

Regarding the first alternative, testimony at the evidentiary hearing revealed that improving the existing access points off of Valley Road would not correct the problems created by the existing roadways. Assuming the existing entrance off of Valley Road was improved, the resolution of unsafe conditions, such as the congestion and 90-degree turns, would require relocation of the stadium and tennis courts. Moreover, the entrance and exit would remain very close to the elementary school and would still go through the bus maintenance facility. In the school district’s opinion, this alternative was not acceptable because it would not resolve the safety concerns or remedy the traffic flow issues on the campus itself. With respect to this alternative, ELA Group concluded:

“The separation of bus traffic and other vehicular traffic should be a goal of the school district to promote safety and orderly traffic flow. The first alternative considered does not address this separation. The first alternative results in greater cost ($1,350,000) to the school district and impacts more homes, and may require the taking of four properties, further increasing the overall cost.” Summary of findings, school district exhibit no. 7 at p. 4.

Under the second alternative, ELA Group considered potential locations for a new access off of Valley Road. In making its determination, the ELA Group examined the safety implications of each design, the traffic flow, the levels of service at each intersection, the cost and impact on surrounding neighborhood properties of any improvements that would need to be made at each intersection and the number of homes that would need to be acquired. The ELA Group concluded that the most feasible location for a new access was the Ulrich tract because it is an open field, provides direct access to the high school, as opposed to the circuitous route required by the present road configuration, and is located east of the stadium and tennis courts. No demolition would have to take place, and no wetlands or streams would be crossed. With respect to this alternative, the ELA Group concluded:

“The second alternative ... ensures separation of bus traffic from other vehicular traffic and should be significantly less to construct the required improvements ($800,000). Fewer properties are impacted than in the first alternative and may require only two properties to be purchased.
“It is our opinion that the second alternative is the best alternative for the school district. Within the second alternative, option 2B [referring to the Ulrich tract] is likely to be the best option, since it impacts the fewest properties and only requires the purchase of one property or the purchase of a right-of-way across the property.” Id.

Expert testimony at the evidentiary hearing revealed that the best and most feasible option for the school district was relocation of the access way. The expert testified:

“In my opinion, for safety purposes and safety alone, the access drives that are currently being used must be remedied.
“My opinion is the only way to remedy those and make that access off of Valley Road safer is the relocation of that access drive.
“Again, we’re talking safety of elementary school students. We’re talking safety of high school students that have to drive through the maintenance operation, bus maintenance operation, to get to and from or actually from Valley Road into the school district or the school parking.
“We’ve got several [90] degree turns that we’re dealing with. We’ve got a pinch point that is going to be very difficult to widen.
“For all of those reasons, I believe that the proposed access would be a much safer and a much more efficient access to the school properly.” N.T. 6/24/2005 at p. 68.

Information relied upon by the school district also showed that access from the Ulrich tract was shown to have the least impact on the surrounding neighborhood and provide the safest internal circulation to the site.

Based upon its review of the options presented by the ELA Group, the school board initiated discussions with the condemnee in April 2003 in order to acquire a portion of his property. When these discussions proved to be uneventful, the school board passed a resolution authorizing the condemnation of a portion of his land in March 2004. The condemnee owns six plus acres of land at the eastern end of the campus. The land is zoned R-3, and is not located in an agricultural zone. Other than a fence, there is no structure on the portion of the tract condemned by the school district. Slightly more than three acres of the land was condemned in the present case.

The school district filed the declaration of taking in the Court of Common Pleas of Lancaster County on March 19, 2004. The condemnee responded by filing preliminary objections on May 5,2004. The condemnor filed an answer to the objections on December 21,2004. An evidentiary hearing was held in this matter on June 24,2005, before this court. On July 19,2005, this court, along with counsel for the parties involved in this case, conducted a view of the Neffsville Campus and the Ulrich property. Subsequently, the parties filed their respective argument briefs in the matter.

In reviewing a decision to condemn property and of the extent of the taking, a trial court is limited in its review “to determining whether the condemnor is guilty of fraud, bad faith or has committed an abuse of discretion.” Downingtown Area School District v. DiFrancesco, 125 Pa. Commw. 264, 267, 557 A.2d 819, 820 (1989). In addition, “[t]he burden of proving the condemnor has abused its discretion is on the objector[,]” id. at 267, 557 A.2d at 820-21, and this burden is extremely high. Spory Appeal, 54 Pa. Commw. 17, 21, 419 A.2d 804, 805 (1980). When property is selected to be acquired, “a court has no power to substitute its discretion for that of the condemnor, nor to correct mistakes in judgment.” 6 Summ. Pa. Jur. 2d Property §11:32; Downingtown, 125 Pa. Commw. at 269, 557 A.2d at 821. Officials who make the decision upon whether or not to condemn certain property are entitled to a presumption that they have acted in good faith. Id. “Mere evidence that a decision is unwise will not warrant a conclusion that a condemnor has abused its discretion in its selection of a site.” Id. at 270, 557 A.2d at 822.

Under the Public School Code of 1949, the school district has the authority to condemn land for proper school purposes. 24 P.S. §7-703. Proper school purposes include' acquiring sites for the construction of school buildings and enlarging the grounds of any school property held by the school district. Id. The statute specifically states, in pertinent part, that: “the Board of School Directors of each district is hereby vested with the necessary power and authority to acquire, in the name of the district, by ... condemnation... any and all schools and real estate, either vacant or occupied ... as the Board of School Directors may deem necessary to furnish school buildings or other suitable sites for proper school purposes for said district.” Id.

In making its decision to condemn real estate which it deems necessary to acquire for proper school purposes, a school board “is not required to follow any set criteria in choosing a... site. All that is required is that an investigation be conducted so that the decision to condemn is an informed judgment.” Downingtown, 125 Pa. Commw. at 270, 557 A.2d at 822.

In the present case, the condemnee failed to meet his burden of proving that the school district acted in bad faith or abused its discretion. A review of the record demonstrates that the school district’s decision to condemn the property was based upon an informed judgment, made after a review of the recommendations submitted by the transportation experts, who extensively studied the issues concerning the school district and considered various alternatives to address those concerns. The fact that other alternatives were available in order to provide safer and more efficient access to the campus in connection with the expansion and/or renovation of the Neffsville Campus is of no consequence to this court. As previously stated, “[a] court has ‘no power to substitute [its] discretion for that of the [condemnor]Id. at 269, 557 A.2d at 821.

“Whether the premises condemned were needed for school purposes [is] within the sound discretion of the condemnor.” Philadelphia School District Condemnation Case, 47 D.&C.2d 454, 456 (1969). As the statute reads, school districts have the power to condemn any real estate that “the Board of School Directors may deem necessary to furnish ... suitable sites for proper school purposes.” 24 P.S. §7-703. Thus, the question of necessity is not one for a court to decide, but one which is within the sound discretion of the authorities. Lutz v. Allegheny County, 302 Pa. 488, 493, 153 A. 903, 904 (1930).

As stated in the declaration of taking, “the condemnation ... is for the public school purpose of acquiring real estate in connection with the expansion and/or renovation of the Manheim Township High School.” This court has not seen any evidence of bad faith or an abuse of discretion on behalf of the school district in its decision to condemn the property at issue. The property was condemned after a thorough investigation and consideration of alternatives provided by ELA Group. Moreover, the school district felt the need to address the safety and efficiency issues created by the existing roadway configuration, and dealt with those needs in an appropriate fashion. In light of these facts, the condemnee has not met his burden of proving that the school district acted in bad faith or abused its discretion in condemning a portion of his property.

Furthermore, the taking does not contravene the policy of the Commonwealth based upon the Governor’s Executive Order 2003-2. The executive order only applies if Commonwealth funds and Commonwealth-administered federal funds are used to encourage the conversion of “prime agricultural land” to other uses when alternatives are available. In the present case, however, the parties have stipulated that no Commonwealth funds or Commonwealth-administered federal funds are being used by the school district to acquire the land at issue. Therefore, the policy contained within the executive order does not apply in the present case.

Accordingly, the court enters the following:

ORDER

And now, September 26,2005, upon consideration of the preliminary objections filed by the condemnee, Robert G. Ulrich, against the declaration of taking filed by the condemnor, Manheim Township School District, together with the briefs and supporting papers filed by the parties, as well as the evidence adduced, it is hereby ordered that the preliminary objections are overruled.


author: MOTT, J.,

text:
    Commonwealth v. Jennings

      Albert C. Ondrey, first assistant district attorney, for Commonwealth.

      Arthur D. Agnellino, for defendant.
    August 15, 2005
   MOTT, J.,

Before the court are the remaining portions of the defendant’s omnibus pretrial motions. This case arises out of the New York State Police’s search for Brandon Hall, who was a suspect in a shooting that occurred in Barton, New York. Hall’s vehicle was found outside of the defendant’s residence here in Pennsylvania on February 21, 2005. This caused the New York State Troopers to seek the assistance of Pennsylvania police officers in searching the defendant’s house for Hall and his weapons. Shortly after the police arrived outside the defendant’s residence, the defendant himself arrived. The defendant gave the police permission to search his house for Hall. During that initial search, the police observed in plain view some of Hall’s weapons and they also observed drug paraphernalia. As a result, the police went to a Magisterial District Judge and obtained a search warrant to search the house for firearms, ammunition, drugs and drug paraphernalia. During the second search, which was authorized by the search warrant, they seized such items.

As a result of the foregoing, the defendant is charged with one count of possession of a controlled substance, a violation of section 780-113(a)(16) of the Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, No. 64 §1 et seq., as amended, 35 P.S. §780-101 et seq., 35 P.S. §780-113(a)(16), one count of possession with intent to deliver or manufacture, a violation of section 13(a)(30) of the Act. 35 P.S. §780-113(a)(30), and five counts of possession of drug paraphernalia, violations of section 13(a)(32) of the Act, 35 P.S. §780-113(a)(32).

The defendant first asserts that the Commonwealth should be compelled to produce the tapes of the alleged radio conversations between the police and the police station that occurred immediately prior to the initial search of the defendant’s house. The defendant asserts that those conversations may demonstrate that the police knew of the presence of the weapons in his house because they may have already impermissibly entered the home and seen them. In response, the Commonwealth offered the testimony of Officer James Tappan to indicate that no such radio conversations took place. Instead, Officer Tappan testified that New York State Troopers came to his office and asked for his assistance in searching the house where they believed Brandon Hall had fled. N.T. 7/19/05, pp. 6-7. Therefore, there is nothing for the Commonwealth to produce and the defendant will not be allowed to go on a fishing expedition based on his mere conjecture.

The defendant also alleges that the initial search conducted by the police officers is not valid because he did not consent to that search of his house. However, this issue was not raised in the defendant’s motion. In fact, in paragraph 11 of his motion, the defendant admits that he gave permission for that search of his house.

The defendant next asserts that the affidavit of probable cause was too vague to support the issuance of a warrant to search for drug paraphernalia, drugs, and marijuana. Initially, we are mindful that the Fourth Amendment of the United States Constitution and Article 1, Section 8, of the Pennsylvania Constitution protects against unreasonable searches and seizures. In regard to a search warrant, the Pennsylvania Supreme Court in Commonwealth v. Grossman, 521 Pa. 290, 296, 555 A.2d 896, 899 (1989), states that “a warrant must describe the items [to be seized] as specifically as is reasonably possible. This requirement is more stringent than that of the Fourth Amendment [of the United States Constitution], which merely requires particularity in the description. The Pennsylvania Constitution further requires the description to be as particular as is reasonably possible.” (footnote omitted)

Furthermore, “in any assessment of the validity of the description contained in a warrant, a court must initially determine for what items probable cause existed. The sufficiency of the description must then be measured against those items for which there was probable cause. Any unreasonable discrepancy between the items for which there was probable cause and the description in the warrant requires suppression.” Id. at 297, 555 A.2d at 900.

Moreover, in Commonwealth v. Coleman, 574 Pa. 261, 268, 830 A.2d 554, 560 (2003), the Pennsylvania Supreme Court states that “[i]n analyzing whether a warrant was supported by probable cause, judicial review is confined to the four corners of the affidavit.”

In this case, relative to the request to search for drugs, the affiant says in the affidavit of probable cause attached to the search warrant only that “[wjhile searching the home for Hall, Officer Savercool found drug paraphernalia on the first and second floors in plain view.” The affidavit does not state specifically what the items were that the officer allegedly saw. It does not state specifically where or how the officer saw the alleged paraphernalia. It does not state how the officer knew the items were drug paraphernalia. As a result, the Magisterial District Judge did not have any way to determine what the items were that the officer saw, whether they really were in plain view, and whether they really were contraband classified as drug paraphernalia. Therefore, the search warrant was, in fact, invalid in authorizing a search for drugs.

Nevertheless, the search warrant was completely valid in authorizing a search for firearms and ammunition. The affidavit clearly provides probable cause for such a search. In addition, all of the drug items that were seized were in plain view once the officers were validly searching the area for Hall’s weapons and ammunition. In Commonwealth v. Lake, no. 2445 C.D. 2004, 2005 WL 1538100 at*l (Pa. Commw.July 1,2005), the court states that the essential elements of the plain view doctrine are that “the evidence must be seen from a lawful vantage point” and that “it must be immediately apparent to the viewer that the object observed is incriminating evidence.” In this case, the water bong marijuana pipe was in plain view because it was seen underneath a coffee table. N.T. 7/19/05 p. 29. The canning jar of marijuana seeds, the glass jar containing several bags of marijuana seeds, a small, tin box containing marijuana seeds, and a tin can containing two pipes were also in plain view because they were found in a closet. N.T. 7/19/05 pp. 29-31. The inside of a closet is a likely hiding space for weapons or ammunition. Furthermore, rounds of ammunition could easily be hidden inside of a jar, a tin box, or almost anywhere in the home. As a result, all the drug items were seen from a lawful vantage point because the officers were properly searching for HalTs weapons and ammunition. Thus, all these items were properly seized under the plain view doctrine. In addition, all of the items were obviously contraband and would have inevitably been discovered in the valid search for weapons and ammunition. See Commonwealth v. Ingram, 814 A.2d 264, 272 (Pa. Super. 2002) (stating that, if the prosecution can establish that evidence would have inevitably been discovered by lawful means, then the evidence should be received).

The defendant next alleges that the statement he made to the police officers that he intended to grow the marijuana seeds should be suppressed because the defendant was in custody at the time. Specifically, the defendant asserts that he should have been given Miranda warnings by the police. However, Miranda warnings are not required unless a subject is both in custody and interrogated. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). In Commonwealth v. Chacho, 500 Pa. 571, 577, 459 A.2d 311, 314 (1983), the Pennsylvania Supreme Court states that Miranda warnings are necessary if the suspect “is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation.” Additionally, the court in Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999), instructs that “[t]he standard for determining whether an encounter with the police is deemed ‘custodial’ or police have initiated a custodial interrogation is an objective one based on a totality of the circumstances, with due consideration given to the reasonable impression conveyed to the person interrogated.” The court continues and defines custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” Id. Also, the court states that the applicable factors under the totality of the circumstances test include “the basis for the detention; its length; its location; whether the suspect was transported against his or her will, how far, and why; whether restraints were used; whether the law enforcement officer showed, threatened or used force; and the investigative methods employed to confirm or dispel suspicions.” Id.

Here, the police officers were at the defendant’s residence because they were searching for Brandon Hall who was wanted in regard to a shooting incident in Barton, New York, and they found Hall’s vehicle parked outside of the defendant’s residence. The search of the defendant’s residence lasted for about four hours. Throughout the duration of the search, however, the officers did not detain the defendant, they never told the defendant that he was not free to leave, and they did not place the defendant under arrest after seizing the marijuana and accompanying paraphernalia. N.T. 7/19/05, pp. 12, 49. In fact, the officers left the premises after completing their search without arresting the defendant and the defendant was never transported anywhere. N.T. 7/ 19/05, p. 49. Although the defendant was accompanied by a police officer while he was in the house, this is an understandable safety precaution because the police were searching for an armed suspect who was allegedly involved in a shooting. Furthermore, the officers did not use any restraints on, or show, use, or threaten force towards the defendant. As a result, based upon the totality of the circumstances, we cannot conclude that the defendant was in custody at the time he stated that he intended to grow the marijuana seeds. Therefore, the defendant’s motion will be denied.

Accordingly, we enter the following:

ORDER

And now, August 15,2005, in accord with the memorandum opinion filed this date, the defendant’s omnibus pretrial motion is denied.


author: McGINLEY, J,

text:
    Lehigh Valley Bone, Muscle & Joint Group LLC v. Puccio

      Samuel P. Murray, for plaintiff.

      Nancy Conrad, for defendant.
    August 12, 2005
   McGINLEY, J,

Before this court are cross motions for summary judgment with relation to a restrictive covenant in an employment contract between the parties. Plaintiff seeks to enjoin defendant from working at St. Luke’s Hospital and to recover liquidated damages based on a restrictive covenant contained in an employment agreement between the parties. Defendant seeks to dismiss plaintiff’s claim.

FACTS

Plaintiff, Lehigh Valley Bone, Muscle and Joint Group L.L.C. (LVBMJ) provides services in the field of orthopedic medicine at their office at 2597 Schoenersville Road, Bethlehem, Pennsylvania. In July 2001, defendant, Steven Puccio D.O., entered into an employment contract with LVBMJ. The employment agreement states at paragraph 11:

“Puccio agrees that during the term of this agreement and for a period of 24 months or two years after termination of Puccio’s employment with LVBMJ, Puccio shall not, directly or indirectly, as owner, principal, agent stockholder, director, manager, representative, employee, counselor, partner, lender, participant or any other capacity whatsoever, engage in the practice of orthopedic medicine within 25 miles from any office of LVBMJ.”

Paragraph 12 of the employment agreement states:

“Liquidated damages: In the event that Puccio violates the provisions of section 11 or any of its subsections, the actual damages sustained by LVBMJ because of such conduct of Puccio will be uncertain and difficult to ascertain, and it is agreed that the reasonable foreseeable damage to LVBMJ would be the sum of $100,000, therefore, Puccio shall pay as liquidated damages to LVBMJ said sum for his breach of the provisions set forth above in section 11.”

Puccio commenced employment for LVBMJ on September 4,2001, and received $ 180,000 in compensation for his first year of services and $200,000 for his second year of services. Pursuant to paragraph 1 of the agreement, Puccio renewed his employment for an additional two-year term in September 2003.

In addition to the private practice services provided, LVBMJ physicians held privileges to perform elective operative procedures at St. Luke’s Hospital, located at 801 Ostrum Street, Bethlehem, Pennsylvania. During Puccio’s employment, LVBMJ physicians also provided orthopedic consultation and on-call services to St. Luke’s emergency room and trauma unit.

At that time, LVBMJ physicians provided 50 percent of the on-call orthopedic services to St. Luke’s emergency room and trauma unit.

On or about November 12,2003, LVBMJ advised St. Luke’s that it did not have the manpower to continue to participate in the on-call program. LVBMJ proposed that St. Luke’s purchase the LVBMJ practice. St. Luke’s declined to purchase LVBMJ, but offered to pay an increased fee for LVBMJ to provide services to its emergency room and trauma unit. LVBMJ refused this offer and ceased providing emergency room and trauma unit services as of January 1,2004.

At approximately the same time in November 2003, Puccio advised LVBMJ of his intent to terminate his employment effective February 2004. Puccio left LVBMJ’s employ on or about February 29,2004. On or about March 9, 2004, Puccio began employment with St. Luke’s Hospital on a locum tennis basis. Puccio agreed to provide one weekend per month of orthopedic services to St. Luke’s emergency room and trauma unit. Puccio provides only emergency, hospital-based service and does not provide routine orthopedic care, elective procedures or other non-emergent care for St. Luke’s.

Plaintiff’s office is at 2597 Schoenersville Road, Bethlehem, Pennsylvania. St. Luke’s Hospital facility is at 801 Ostrom Street, Bethlehem, Pennsylvania and is located within 25 miles of the plaintiff’s office.

PROCEDURAL HISTORY

Plaintiff filed a complaint on May 19, 2004, seeking to enjoin defendant from working for St. Luke’s Hospital based on the restrictive covenant in the employment agreement between the parties. On June 28, 2004, defendant filed an answer and new matter. Plaintiff filed an answer to defendant’s new matter on August 31,2004.

On April 1,2005, plaintiff filed the instant motion for summary judgment. On the same date, defendant filed his motion for summary judgment.

Argument on the cross motions for summary judgment was heard before this court on July 11, 2005.

DISCUSSION

Both plaintiff and defendant seek summary judgment based upon a restrictive covenant contained in an employment contract between the parties.

A motion for summary judgment may be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Heil v. Brown, 443 Pa. Super. 502, 505, 662 A.2d 669, 671 (1995). In passing upon a motion for summary judgment, a court must examine the record in a light most favorable to the non-moving party and must resolve all doubts against the moving party. Id.

Once the moving party has met its burden, the non-moving party must produce sufficient evidence regarding material issues of his case, and on which he bears the burden of proof, such that a jury could return a verdict in his favor. Failure to show such evidence establishes that the moving party is entitled to judgment as a matter of law. Ertel v. Patriot-News Co., 544 Pa. 93, 102, 674 A.2d 1038, 1042 (1996).

Restrictive Covenant

Plaintiff argues that defendant violated this restrictive covenant and that they are therefore entitled to judgment as a matter of law. Defendant cross moves for summary judgment arguing that, despite any violation, plaintiff has failed to establish that the restrictive covenant protects a legitimate business interest and that the covenant is therefore unenforceable.

The employment agreement between the parties clearly states that Puccio “agrees that ... for a period of 24 months or two years after termination of Puccio’s employment with LVBMJ, Puccio shall not, directly or indirectly, as owner, principal, agent stockholder, director, manager, representative, employee, counselor, partner, lender, participant or any other capacity whatsoever, engage in the practice of orthopedic medicine within 25 miles from any office of LVBMJ.”

Defendant began working as an orthopedist for St. Luke’s Hospital within one month of the termination of his employment with LVBMJ. St. Luke’s Hospital is less than 25 miles from LVBMJ’s Bethlehem office.

Restrictive covenants are generally enforceable in Pennsylvania if they are incident to an employment relationship between the parties; the restrictions imposed by the covenant are reasonably necessary for the protection of the employer; and the restrictions imposed are reasonably limited in duration and geographic extent. Hess v. Gebhard & Co. Inc., 570 Pa. 148, 808 A.2d 912, 917 (2002); Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976).

At a minimum, a restrictive covenant must be reasonably related to the protection of a legitimate business interest to be enforceable. Wellspan Health v. Bayliss M.D., 869 A.2d 990, 995 (Pa. Super. 2005), citing Hess, 570 Pa. at 160, 808 A.2d at 918.

Defendant asserts that the restrictive covenant was meant only to protect LVBMJ’s patient base and referral system and that plaintiff has therefore failed to establish that the restrictive covenant in this case is reasonably related to the protection of a legitimate business interest.

The Pennsylvania Supreme Court has recognized that the “efforts and moneys” invested by an employer to provide specialized training in the methods of the employer’s business is a legitimate business interest. Pennsylvania Funds Corp. v. Vogel, 399 Pa. 1, 159 A.2d 472 (1960); Wellspan, 869 A.2d at 997. In addition, the court in Wellspan held that a patient referral base is a protected interest in the context of enforcing a non-competition covenant in an employment agreement between employer and its physician employees. Id. See also, Worldwide Auditing Services Inc. v. Richter, 402 Pa. Super. 584, 591, 587 A.2d 772, 776 (1991) (holding that it is a legitimate business interest to protect a customer base.)

Plaintiff employed and trained defendant, introduced him to the St. Luke’s Hospital system for which he now works and gave him patients and introduced him to other referring sources. We find that considering the foregoing, the geographic proximity and specialty of the practice, the plaintiff has a legitimate and protected business interest in this case.

Defendant has clearly violated the restrictive covenant set forth in his employment agreement with LVBMJ. Plaintiff has established that there are no genuine issues as to any material facts and that they are entitled to judgment as a matter of law. Defendant has failed to produce sufficient evidence regarding a material issue to allow a jury to return a verdict in his favor. Thus, plaintiff’s motion for summary judgment is granted and defendant’s motion for summary judgment is denied.

As a result of the violation of the restrictive convenant, plaintiff seeks liquidated damages in the amount of $ 100,000 pursuant to the employment agreement. Plaintiff also seeks to permanently enjoin defendant from working as an orthopedist at St. Luke’s Hospital.

Liquidated Damages

Plaintiff contends that because the defendant is in violation of the restrictive covenant contained at paragraph 11 of the employment agreement, they are entitled to recover the sum of $100,000 as a matter of law. Defendant argues that this sum, as set forth in the employment agreement, is a penalty as opposed to liquidated damages, and therefore not enforceable.

The contract provides that “in the event that Puccio violates the provisions of section 11 or any of its subsections, the actual damages sustained by LVBMJ ... will be uncertain and difficult to ascertain, and it is agreed that the reasonable foreseeable damage to LVBMJ would be the sum of $100,000.”

Defendant contends that the amount of damages set forth in the contract is unreasonable and that the contractual provision should be voided as a penalty. Defendant also argues that because Dr. Williams testified that the sum of $100,000 was placed in the employment contract as an impediment to employees to deter them from violating the restrictive covenant, that this court must find the sum to be a penalty rather than reasonable damages.

The question of whether a sum stipulated in a written contract is a penalty or liquidated damages is a question for the court, to be determined by the intention of the parties, examined in the light of its subject matter and its surroundings. Hanrahan v. Audubon Builders Inc., 418 Pa. Super. 497, 502, 614 A.2d 748, 750 (1992) citing Commonwealth v. Musser Forests Inc., 394 Pa. 205, 212, 146 A.2d 714, 717 (1959); Laughlin v. Baltalden, 191 Pa. Super. 611, 617, 159 A.2d 26, 29 (1960).

Liquidated damages is a term of art originally derived from contract law, denoting “the sum a party to a contract agrees to pay if he breaks some promise, and which, having been arrived at by a good faith effort to estimate in advance the actual damage that will probably ensue from the breach, is legally recoverable... if the breach occurs.” Pantuso Motors Inc. v. Corestates Bank, 568 Pa. 601, 608, 798 A.2d 1277, 1282 (2002). (citation omitted)

A penalty, on the other hand, is not a pre-estimate of probable actual damages, but fixed as a punishment, the threat of which is designed to prevent the breach. Id.

Thus, contracting parties may provide for pre-determined liquidated damages in the event one party fails to perform, particularly in circumstances where actual damages would be difficult to estimate in advance or to prove after the breach occurs. See Commonwealth v. Musser Forests Inc., 394 Pa. 205, 212, 146 A.2d 714, 718 (1958).

The intent of the parties to a written contract is to be regarded as being embodied in the writing itself. When a written contract is clear and unequivocal, its meaning must be determined by its contents alone. Steuart v. McChesney, 498 Pa. 45, 49, 444 A.2d 659, 661 (1982); PennDOT v. Manor Mines Inc., 523 Pa. 112, 119, 565 A.2d 428, 432 (1989).

Here, the agreement itself states that the actual damages would be difficult to ascertain, but that the sum of $100,000 would be a reasonable estimate of damages in the event the agreement is violated. Defendant began his employment with LVBMJ at a salary of $ 180,000 per year which increased to at least $200,000 per year. We find that damages for the breach of the employment contract of $100,000 is a reasonable sum in this case.

The defendant is in violation of the employment agreement and pursuant to said agreement, plaintiff is entitled to recover damages in the amount of $100,000 as set forth in the employment agreement.

Permanent Injunction

Plaintiff also seeks a permanent injunction to enjoin defendant from working at St. Luke’s Hospital.

To prevail in a claim for a permanent injunction, the plaintiff must prove a clear right to relief and the injury claimed must be one that cannot be compensated by an award of damages. Wellspan Health v. Bayliss M.D., 869 A.2d at 995; Buffalo Township v. Jones, 571 Pa. 637, 644, 813 A.2d 659, 663 (2002); Geisinger Clinic v. Di Cuccio, 414 Pa. Super. 85, 102, 606 A.2d 509, 518 (1992). A permanent injunction is appropriately awarded “to prevent a legal wrong for which there is no adequate redress at law.” Buffalo Township, 571 Pa. at 644, 813 A.2d at 663.

In the present case, the parties have agreed that $100,000 is a reasonable compensation for damages caused by a violation of the restrictive covenant and we have agreed that this clause is enforceable. In light of this, injunctive relief is not required.

Therefore, plaintiff’s motion for a permanent injunction is denied.

      . Deposition of Steven Puccio D.O., pp. 12-13.

      . Deposition of Dean W. Evans, p. 25 and deposition of John M Williams M.D., p. 11.

      . Deposition of Dean Evans, p. 25.

      . Deposition of Evans, pp. 27-28.

      . Deposition of Evans, pp. 28-29.

      . Deposition of Evans, pp. 35-36.

      . Deposition of Puccio, pp. 24-27.

      . Deposition of Evans, p. 42 and deposition of Puccio, pp. 15-16, 36.

      . Deposition of Ranjan Sachdev M.D., pp. 6-7.


author: CEPPARULO, J,

text:
    PennDOT v. Kramer

      Marc A. Werlinsky, assistant counsel, for appellant.

      Michael B. Grasso, for appellee.
    July 1, 2005
   CEPPARULO, J,

I. INTRODUCTION

The Commonwealth of Pennsylvania, Department of Transportation (PennDOT) has appealed from this court’s April 26, 2005 order sustaining Stephanie L. Kramer’s petition for appeal from a suspension of operating privilege and rescinding suspension of her driver’s license. This opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

II. PROCEDURAL AND FACTUAL BACKGROUND

On December 5,2004, Officer Michael Lubold of the Middletown Township Police Department was called to the scene of a one-vehicle accident involving a vehicle operated by Stephanie Kramer. N.T., April 16,2005 at 7. Upon arriving at the scene, the officer saw that the vehicle struck a telephone pole, snapping it in half, and went down an embankment into small trees and brush. Id. at 8. Kramer had telephoned her father after the accident occurred and her father arrived at the scene before the police or emergency personnel. Id. at 43-44. The officer spoke with Kramer, who had left the vehicle and was standing by the side of the road. Id. at 8. The officer noticed that Kramer was extremely upset, “crying uncontrollably at times,” and that she exhibited signs of being under the influence of alcohol, including “a very strong odor of alcoholic beverage about her breath,” slurring of words, a flushed face and bloodshot eyes. Id. at 8-9. Kramer had no recollection of how the accident occurred, nor could she tell the officer where she was coming from or where she was going. Id. Kramer was also unable to answer basic questions about the day of the week and the identity of the president of the United States. Id. at 21. When the rescue squad at the scene transported Kramer by ambulance to the hospital, the officer followed her to St. Mary Medical Center. Id at 10.

Once at the hospital, Officer Lubold again attempted to talk with Kramer, explaining to her that he was going to request a blood test based upon his observations. Id. Kramer remained upset and the officer testified that she began to refuse to cooperate. Id. at 11. She began to “scream and yell uncontrollably for her father,” and, when the officer began reading the PennDOT chemical test warning form (Form DL-26), she became so distraught that the nursing staff and a doctor arrived to try to calm her. Id. The officer was forced to cease reading the form after the first and part of the second paragraphs because Kramer’s behavior was becoming disruptive, and she “completely ignored [Officer Lubold] the rest of the time and just yelled for her father.” Id. at 12. The officer estimated that it took a period of “several minutes” to read the portion of the form that was communicated to Kramer. Id. at 24. Kramer’s father did not arrive at the hospital until approximately 10 minutes after the ambulance because he had driven back to his home first, which is located about six blocks from the scene of the accident. Id. at 47.

When Officer Lubold determined that he could not finish reading the form because of Kramer’s continuous, hysterical requests to see her father, the officer “went and spoke to her father and explained to him what was going on.” Id. at 53. Kramer’s father then went into the back of the hospital to see Kramer. Id. Once Kramer’s father was with her, she told the officer that she would take the test. Id. at 32. However, the officer informed Kramer’s father that “it was too late to take the test.” Id. at 42. After he obtained a search warrant, the officer eventually received the results of a blood test obtained from blood taken by the hospital for treatment purposes. Id. at 25. A hearing was held before this court on April 13, 2005 and the matter was taken under advisement. On April 26, 2005, we issued an order sustaining Kramer’s appeal and reinstating her driving privileges. PennDOT now appeals from that order.

III. ISSUES

PennDOT raises five issues on appeal — (1) whether this court erred in sustaining Kramer’s appeal where PennDOT satisfied its burden of proving “a valid suspension pursuant to 75 Pa.C.S. § 1547(b) based upon her refusal to submit to chemical testing after being arrested by a police officer who had reasonable grounds to believe that she was in violation of 75 Pa.C.S. §3802”; (2) whether this court erred in sustaining Kramer’s appeal “on grounds the officer failed to read the warnings from the form DL-26 in their entirety where Kramer’s conduct frustrated the officer’s attempt to read those warnings”; (3) whether this court erred in sustaining Kramer’s appeal “where Kramer’s conduct constituted a refusal”; (4) whether this court erred in sustaining Kramer’s appeal “because she failed to meet her burden of proving, through unequivocal expert testimony, that her refusal of chemical testing was not knowing and conscious”; and (5) whether this court erred in sustaining Kramer’s appeal “because she did not suffer from an obvious inability to take the requested chemical test or to make a knowing and conscious refusal of testing.” See statement of matters complained of on appeal. In the interest of clarity, we have addressed all of the issues in one analysis.

IV. ANALYSIS OF ISSUES

In cases where a licensee appeals suspension of his or her driving privilege for failure to submit to chemical testing, PennDOT has the initial burden of proving four elements — that “licensee was arrested for driving under the influence of alcohol, was requested to submit to a chemical test, refused to do so and was specifically warned that a refusal would result in the suspension of his operating privileges.” DiGiovanni v. PennDOT, 111 A.2d 1125, 1126 (Pa. Commw. 1998). Regarding the arrest for DUI, the arrest must have been made by a “police officer who had reasonable grounds to believe that the motorist was operating, or actually controlling or operating the movement of a motor vehicle, while under the influence of alcohol.” Gombar v. PennDOT, 678 A.2d 843, 847 (Pa. Commw. 1996). To prove that the licensee was requested to submit to chemical testing, “PennDOT’s burden ‘includes the burden of showing that the licensee was offered a meaningful opportunity to comply with section 1547.’ ” Petrocsko v. PennDOT, 745 A.2d 714, 716 (Pa. Commw. 2000) (citing Conrad v. PennDOT, 142 Pa. Commw. 642, 598 A.2d 336 (1991)).

Regarding the question of whether a refusal has taken place, the Commonwealth Court in Hudson v. PennDOT, 830 A.2d 594, 599 (Pa. Commw. 2003) stated that “[t]he issue of whether a motorist’s conduct constitutes a refusal to submit to chemical testing is a question of law to be determined based on the facts found by the trial court.” (citations omitted) “[A] motorist’s refusal to submit need not be expressed in words; rather, a motorist’s conduct may demonstrate a refusal to submit to chemical testing.” Id. The proper standard to apply in determining whether a licensee’s conduct amounts to a refusal is that any conduct “substantially short of an unqualified and unequivocal assent to a request to submit to chemical testing is a refusal.” Warner v. PennDOT, 723 A.2d 755, 756 (Pa. Commw. 1999). (citation omitted)

Finally, regarding adequate warning that a refusal will result in a license suspension, the court in PennDOT v. Ingram, 538 Pa. 236, 256, 648 A.2d 285, 294-95 (1994) held: “that a proper O ’Connell warning must include the following information: first, a motorist must be informed that his driving privileges will be suspended for one year if he refuses chemical testing; second, the motorist must be informed that his Miranda rights do not apply to chemical testing. This is by no means a mantra that the police must recite like automatons. The subject matter, however, should be covered in warnings issued by the police.” Form DL-26, which is provided to police officers by PennDOT to assist in giving appropriate warning of possible license suspension, states in pertinent part:

“It is my duty, as a police officer, to inform you that if you refuse to submit to the chemical test your operating privilege will be suspended for a period of one year. You have no right to speak to a lawyer, or anyone else, before taking the chemical test requested by the police officer, nor do you have a right to remain silent when asked by the police officer to submit to the chemical test. Unless you agree to submit to the test requested by the police officer your conduct will be deemed to be a refusal and your operating privilege will be suspended for one year.”

Thus, .an officer is not required to read the words printed on Form DL-26 verbatim. However, an officer is required to communicate proper O ’Connell warnings in some form to the arrested licensee (including the fact that a one-year license suspension will result from refusal to submit to chemical testing, and that there is no right to speak with an attorney). One method of giving these warnings is to read the language printed in paragraphs 3 and 4 of Form DL-26.

In the case sub judice, the burden of proof was initially on PennDOT. The record shows that Kramer was involved in a severe one-car accident and exhibited signs of intoxication at the scene. N.T. at 8-9. At the hospital, Officer Lubold read Kramer the first and second paragraphs of the DL-26 form, which informed Kramer that she was being arrested for DUI and that a blood test was being requested. Id. at 12. Thus, PennDOT met their burden with regard to the first element — that Kramer was arrested for driving under the influence of alcohol by an officer who had reasonable grounds to believe that Kramer had been driving under the influence.

As stated, PennDOT’s burden of proving that a licensee was asked to submit to testing includes the burden of showing that the licensee was given a meaningful opportunity to take the test. Here, Officer Lubold testified that he spent only several minutes in his initial attempt to read the DL-26 form to Kramer. N.T. at 24. However, when Kramer’s father appeared and Kramer became calm enough to agree to the test, the officer indicated that it was “too late” and that his investigation was complete. Id. at 42. The officer also testified that Kramer was confused at the scene of the accident so that she was unable to answer simple questions asked by emergency personnel. Id. at 21. Further, the car accident in which Kramer was involved was severe enough to result in a utility pole being snapped in half. Id. at 8. Under these circumstances, allowing only a few minutes for a hysterical licensee to calm down and cooperate with blood testing does not amount to a meaningful opportunity to comply with the mandates of section 1547. Furthermore, refusing to allow cooperation with the test after the licensee calms down and agrees to cooperate on the grounds that the investigation is complete is not reasonable. Therefore, we find that Kramer was denied a meaningful opportunity to submit to chemical testing.

PennDOT also has the initial burden of proving that Kramer refused to submit to chemical testing after being given a reasonable opportunity to cooperate. Here, Kramer exhibited uncooperative behavior for several minutes, which the officer deemed to constitute a refusal. N.T. at 24-25, 53. Clearly, Kramer’s initial conduct fell substantially short of an unqualified and unequivocal assent. However, the officer also testified that he was “still in the hospital” when he was approached by Kramer’s father, who informed him that Kramer was calm and assenting to undergo testing. N.T. at 55. Therefore, it is not clear that Kramer refused the test at all times. In fact, this court found that Kramer did eventually assent to testing. See id. at 32, 41. Because Kramer refused to take the test before being given a meaningful opportunity to submit, PennDOT failed to meet its burden of proving that Kramer refused after being afforded a meaningful opportunity to take the test. Rather, the record shows that Kramer agreed to testing after she calmed down.

Assuming, arguendo, that PennDOT had met its burden as to Kramer’s refusal to submit to testing after being afforded a reasonable opportunity to cooperate, PennDOT did not meet the burden of showing that Kramer was informed that a refusal would result in a one-year license suspension. Officer Lubold testified that he read only the first and second paragraphs of the DL-26 form. N.T. at 12. These paragraphs only inform a licensee that he or she has been arrested for driving under the influence and that the officer is requesting a blood test. Officer Lubold did not read the third and fourth paragraphs, which would have informed Kramer that she was facing a one-year license suspension and that she had no right to consult an attorney. Id. There was no testimony to indicate that Officer Lubold ever informed Kramer about the license suspension or her right to seek legal advice in any fashion whatsoever. Therefore, we find that PennDOT did not meet its burden of proving that Kramer was informed that she would lose her license upon a refusal to submit to chemical testing.

PennDOT complains that Kramer’s hysterical state prevented Officer Lubold from completing the warnings. See statement of matters complained of on appeal, para. 2. However, Officer Lubold himself testified that he spent only minutes attempting to effectively communicate the warnings to Kramer. N.T. at 24. Furthermore, Officer Lubold could have communicated the warnings to Kramer after she had calmed down and was prepared to undergo testing. Rather than complete the warnings and obtain a blood sample when Kramer became calm, the officer informed Kramer that it was “too late.” Id. at 42. Therefore, we find that Kramer’s behavior was not so egregious as to prevent effective communication of the DL-26 warnings in any form, and that the officer had ample opportunity to give the warnings, particularly after Kramer’s father arrived in the emergency room. Because Kramer’s conduct did not prevent the officer from giving the warnings, and because the warnings were not in fact given, Kramer’s appeal must be sustained.

PennDOT further complains that Kramer failed to uphold her burden of showing an obvious medical incapacity to submit to testing or, in the alternative, to provide expert testimony showing a non-obvious medical condition. See statement of matters complained of on appeal, paras. 4,5. Once PennDOT has met its burden of proof with regard to the initial four elements of a chemical test refusal case, the burden shifts to the licensee to show incapacity to make a knowing and conscious refusal. See Carlin v. PennDOT, 739 A.2d 656 (Pa. Commw. 1999). Here, however, we have found that PennDOT did not meet its burden with regard to those four initial elements. Because PennDOT did not sustain its burden, the burden never shifted to Kramer and she was not required to provide expert testimony. Kramer’s ability to make a knowing and conscious refusal is immaterial to our decision to sustain her appeal, which was based solely on PennDOT’s failure to prove that Kramer refused testing and was adequately informed of the consequences of her refusal.

V. CONCLUSION

The foregoing represents the reasons for this court’s order of April 26, 2005.

      . The first paragraph of Form DL-26 reads as follows: “Please be advised that you are under arrest for driving under the influence of alcohol or controlled substance in violation of section 3802 of the Vehicle Code.” The second paragraph reads: “I am requesting that you submit to a chemical test of Blood,” and the word “blood” has been written in by Officer Lubold. Officer Lubold did not read the remaining two paragraphs of the form, which inform an arrestee that he or she will face a license suspension of one year for a refusal to submit to testing and that the arrestee has no right to consult an attorney or anyone else.

      . While the extent of Kramer’s injuries were not placed on the record before this court, it is clear that she was involved in a serious accident and that blood was eventually drawn at the hospital in the course of treatment for injuries suffered in that accident.


author: JOHNSON, J,

text:
    Solis v. St. Luke’s Hospital

      John P. Karoly and Lewis L. Thompson, for plaintiff.

      Richard F. Stevens and Timothy T. Stevens, for defendants.
    May 27, 2005
   JOHNSON, J,

The plaintiff in this action filed the complaint against the moving defendants on or about June 1, 2004. The complaint sounds in medical negligence, wrongful death, and survival actions.

Before the court for consideration is the defendants St. Luke’s Hospital and Thomas Geng D.O.’s motion for summary judgment filed on April 11,2005. The moving defendants argue that, in light of the plaintiff’s failure to produce an expert report critical of the care rendered by the moving defendants, the plaintiff will not be able to meet the requisite burden of proof in this medical malpractice action and therefore the moving defendants are entitled to summary judgment as a matter of law. For the following reasons, the court will grant the moving defendants’ motion.

I. RELEVANT FACTUAL BACKGROUND

The plaintiff filed his complaint in this matter on or about June 1,2004. Said complaint generally alleges that moving defendants are liable for negligence that occurred during laparoscopic surgery to the plaintiff’s decedent’s abdomen and his subsequent treatment. The plaintiff also generally alleges that, during this laparoscopic surgery, two enterotomic tears occurred, of which only one was repaired, resulting in the plaintiff’s decedent’s development of peritonis, systemic sepsis and respiratory failure that caused his death.

By order of this court dated August 24, 2004, the plaintiff’s pretrial discovery was to be completed by February 28, 2005, and all of the plaintiff’s expert witness reports were to be submitted by March 31, 2005. The March 31,2005 deadline for the plaintiff to produce his expert reports has expired and, to date, the moving defendants have not received an expert report criticizing the care and treatment provided to the plaintiff’s decedent in this action in compliance with the court-ordered deadline.

II. DISCUSSION

The Supreme Court of Pennsylvania, in Toogood v. Owen J. Rogal D.D.S., PC., 573 Pa. 245, 262, 824 A.2d 1140, 1149 (2003), concluded that because “medicine is an applied science, the realm of reasonable choice is best defined by those engaged in the practice and therefore expert medical testimony is required” in medical malpractice cases. Under Pennsylvania law, it is well-settled that to establish a prima facie case of medical malpractice “a plaintiff is also required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.” Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 892 (1990); see also, Strain v. Ferroni, 405 Pa. Super. 349, 354-55, 592 A.2d 698, 701-703 (1991).

The only exception to the requirement of expert testimony “is where the matter under investigation is so simple, and the lack or want of care so obvious as to be within the range of ordinary experience of even non-professional persons, also conceptualized as the doctrine of res ipsa loquitur.” Toogood, 573 Pa. at 255, 824 A.2d at 1145; see also, Smith v. Yohe, 412 Pa. 94, 99, 194 A.2d 167, 170 (1999). “The key to the doctrine [of res ipsa loquitur] is that a sufficient fund of common knowledge exists within a jury of laypersons to justify raising an inference” of negligence, “thereby relieving] the plaintiff of having to prove causation directly.” Toogood, 573 Pa. at 257, 824 A.2d at 1146.

The court finds, however, that the above exception is inapplicable in this case, as the plaintiff is alleging negligence based on the performance of laparoscopic surgery and resulting enterotomic tears, concepts outside of the “range of ordinary experience of even non-professional persons.” Id., 573 Pa. at 255, 824 A.2d at 1145. Therefore, in order to establish a prima facie case of medical negligence, the plaintiff is required to present an expert witness to provide medical testimony to prove that the moving defendant’s alleged actions fell below the acceptable medical standard of care.

Because the March 31,2005 deadline for the plaintiff to produce his expert reports has expired and, to date, the moving defendants have not received an expert report criticizing the care and treatment provided to the plaintiff’s decedent in this action in compliance with the court-ordered deadline, the court finds, as a matter of law, that the plaintiff cannot maintain a prima facie case of medical negligence against the moving defendants. Therefore, the moving defendants’ motion for summary judgment filed on April 11, 2005, is hereby granted and the plaintiff’s complaint against the moving defendants is dismissed with prejudice.

ORDER

And now, May 27, 2005, upon consideration of defendants St. Luke’s Hospital and Thomas Geng D.O.’s motion for summary judgment filed on April 11, 2005, and plaintiff’s failure to respond thereto, it is hereby ordered that said motion is granted and the plaintiff’s complaint against the moving defendants is dismissed for the reasons enumerated in the accompanying memorandum opinion.