author: AMMERMAN, J.,

text:
    Inguagiato v. Inguagiato

      C.P. of Clearfield County,
    no. 99-1350-CD.

      William Shaw Jr., for plaintiff.

      Winifred Jones-Wenger, for defendant.
    February 2, 2000
   AMMERMAN, J.,

Plaintiff Robert S. Inguagiato, father, and defendant Brenda K. Inguagiato, mother, are the parents of minor child Chrystle Inguagiato, bom January 10, 1994. By order dated September 2, 1998, the parties were divorced by the Court of Common Pleas of Bedford County. On the above date, the parties also entered into a custody consent order that provided father with visitation of daughter Chrystle for a minimum of one week per month as well as various holidays and weekends as the parties could mutually agree upon. In addition, the consent order provided that should mother leave the Commonwealth due to employment, she would be responsible for the child’s transportation to the residence of father for visitation.

In December 1998, as part of her employment as an on-site building safety inspector with Mid-State Electric, mother left the Commonwealth along with Chrystle and assumed residence in Oklahoma. She remained there until May of 1999, when her job required her to move to Missouri. Mother and Chrystle lived in Missouri until sometime in August of 1999, when she was required to move for a new project in Arkansas. In November 1999, upon completion of the building in Arkansas, mother was once again transferred, this time to Louisiana, where she currently resides. Throughout this approximately one and a half years, Chrystle has lived with her mother and made sporadic trips to Pennsylvania to visit her father. These visits have ranged in duration from one week to more than a month.

On December 9, 1999, father filed a complaint for modification of custody with this court. Following receipt of preliminary objections filed on behalf of mother, father filed an amended complaint for modification of custody with a count for special relief which set forth allegations seeking to establish jurisdiction with this court. Thereafter, mother once again filed preliminary objections that challenged the jurisdiction of the Pennsylvania courts over the custody dispute. To resolve this sole issue of jurisdiction, a hearing was held on January 6, 2000, where testimony was offered by both parties. Following the submission of briefs, the court addresses that issue at this time.

In this Commonwealth, issues of child custody involving parents living in different states are governed by the Uniform Child Custody Jurisdiction Act, 23 Pa.C.S. §5344. It provides, in relevant part, as follows:

“(a) General rule — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody , determination by initial or modification decree if:
“(2) it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
“(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
“(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the child.” 23 Pa.C.S. §5344(a)(2)(I)(ii),

The Act further states that physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine custody. 23 Pa.C.S. §5344(c).

In the case at bar, mother asserts that Louisiana, not Pennsylvania, is the proper forum for resolving any custody issue. She argues that since the child has lived outside of the Commonwealth for over a year and evidence concerning her current well-being exists in Louisiana, Pennsylvania does not have jurisdiction. However, it is the opinion of this court that both requirements of the above statute are met and jurisdiction is proper in the Commonwealth of Pennsylvania.

The first prong requiring that a child and at least one parent have a significant connection with the Commonwealth has been established. Father currently resides in Pennsylvania and in fact has lived here for the entirety of Chrystle’s life. Likewise, Chrystle has a considerable tie to the Commonwealth. She lived the first four and a half years of her life in Pennsylvania, and despite moving to several southern states over the last 18 months, has visited on various occasions. She also maintains relatives from both sides of her family in Pennsylvania.

Under the UCCJA and Pennsylvania law, the child does not need to reside in Pennsylvania in order for her to have a “significant connection with this Commonwealth.” Scheafnocker v. Scheafnocker, 356 Pa. Super. 118, 514 A.2d 172 (1986). In Scheafnocker, the trial court determined that although the father had taken the children to Texas to live with him and the children had not resided in Pennsylvania for over six months prior to the custody action, Pennsylvania maintained jurisdiction where the children lived in the Commonwealth for four years prior to moving to Texas, and the children had grandparents and other relatives present in Pennsylvania. The situation is similar in the present case, and clearly the “significant connection” needed to satisfy the first requirement for jurisdiction is met.

The second requirement that there is available substantial evidence concerning the present or future care, protection, training, and personal relationships of the child, is established from the testimony provided at the January 6 hearing. At that hearing, father testified that he recently remarried and his new spouse, Heather, has a daughter of similar age as Chrystle. According to father, the two girls have formed a relationship and get along well. Father further stated that he is employed as a construction superintendent and makes a comfortable living that allows his new wife to remain a homemaker and full-time mother capable of providing any needs for the children. Father established that he is a homeowner in Clearfield Borough’s East End, a neighborhood with several children Chrystle’s age, with whom she frequently plays on her visits to Pennsylvania. As previously noted, testimony was also offered that virtually all of Chrystle’s relatives, maternal as well as paternal, reside in or near Clearfield County. Finally, father testified that his employment would provide necessary health insurance coverage for his daughter within the state of Pennsylvania and that unlike her current situation with her mother, Chrystle would be able to attend the Clearfield Area School District for her entire education. From this testimony, it is apparent that the evidence required by the second prong of the statute pertaining to the child’s potential relationships and care is present.

Mother, however, argues that because there is no evidence in Pennsylvania concerning the existing home, schooling and medical care that Chrystle is receiving in Louisiana, jurisdiction can only be proper in the state in which she resides. This argument is not only circular but meritless. First of all, as previously noted, while preferred, the UCCJA does not require the child’s physical presence in the state for jurisdictional purposes. 23 Pa.C.S. §5344(c).

More importantly though, to accept mother’s contention that jurisdiction is improper because no evidence exists in Pennsylvania surrounding Chrystle’s current situation would be misinterpreting the language of the statute. Father could just as easily argue that jurisdiction is improper in Louisiana because no evidence exists there concerning his child’s potential home life and schooling should she return to Pennsylvania. Furthermore, mother has lived in four states in less than two years due to the nature of her work. It would not be unlikely for her to continue to relocate based on where her employment takes her. The evidence to which mother points concerning her daughter’s home, schooling, and medical care could easily be changed upon the completion of another building project and subsequent transfer to a different location. The best interest of a child in a custody dispute is served by the forum with optimum access to relevant evidence about the child and her family. Baines v. Williams, 431 Pa. Super. 72, 635 A.2d 1077 (1993). Barring unforeseen circumstances, the child’s connection to Pennsylvania will always be constant. For this reason, jurisdiction is not only proper in Pennsylvania, but the Commonwealth provides the most convenient forum to determine any custody issues.

ORDER

Now, February, 2, 2000, based on the previous arguments and consistent with the foregoing opinion, it is the order of the court that defendant’s preliminary objection to plaintiff’s amended complaint based on jurisdiction under 23 Pa.C.S. §5344 is hereby dismissed.


source: Caselaw Access Project

author: BROWN, S.J.,

license: Public Domain

text:
    Carleo v. Kaufman

      C.P. of Montgomery County,
    no. 96-06692.

      Daniel E. Kleiner, for plaintiffs.

      Colin Hannings and Robert J. LaRocca, for defendant.
    February 15, 2000
   BROWN, S.J.,

On September 15, 1995, plaintiff, Anthony A. Carleo, was operating a vehicle that was struck in the rear by an automobile operated by the defendant, Nechama Kaufman. Negligence was admitted. The case was tried before the undersigned and a jury on April 14,15 and 16, 1999. The jury found that the defendant’s negligence was a substantial factor in bringing about harm to the plaintiff, and awarded a verdict in the amount of $464, the stipulated amount of plaintiff’s lost income.

On April 26, 1999, plaintiff filed a motion for post-trial relief, seeking a new trial on the issue of damages only. On November 17,1999, we granted the motion and awarded a new trial of all issues. Defendant appealed.

Mr. Carleo testified about pain and numbness immediately after the accident. When he returned to work, he was unable to perform his job for more than an hour due to pain in his neck and lower back. He suffered a football injury while in high school. His treatment ended before the accident. He changed employment from cook to prison guard because the new job was not as physically demanding.

The plaintiff offered the expert testimony of Randall M. Smith M.D., a board certified orthopedic surgeon. Dr. Smith testified that he found objective signs of injury in Mr. Carleo’s left shoulder and neck. He performed tests to see if Mr. Carleo was exaggerating or magnifying his symptoms, and concluded he was not. (Smith video deposition at 17-19.) An MRI performed on January 22,1998, and reviewed by Dr. Smith, included a finding at the C6-C7 level consistent with muscle spasms. (Smith video deposition at 25-26.) Dr. Smith testified that Mr. Carleo’s football injury had resolved, except that it made him more susceptible to injury from this accident. (Smith video deposition at 22-23, 34, 96.)

Defendant’s expert, Leonard Klinghoffer M.D., testified that Mr. Carleo sprained his neck and low back in the accident. (Klinghoffer video deposition at 27.) It was Dr. Klinghoffer’s opinion that by the time of the examination he conducted in April 1997, Mr. Carleo’s injuries had resolved. (Klinghoffer video deposition at 29.) He did not offer an opinion about when that happened (Klinghoffer video deposition at 31), but testified that the plaintiff had physical problems from his sprains for a period between a few weeks to five months after the accident. (Klinghoffer video deposition at 40.)

Defendant’s brief in opposition to plaintiffs’ motion for post-trial relief points to portions of Mr. Carleo’s testimony which could lead a jury to conclude he did not suffer pain. Defendant asks for judgment n.o.v. She ig-ñores evidence from which a jury could find that the plaintiff was in pain. When his vehicle was struck from behind, he was dizzy, got out, but had to sit down. He was feeling some pain in his arms and both his legs. (N.T. trial 4/14/99 at 13.) He reported pain in his neck and shoulders at Warminster General Hospital, where he was taken immediately after the accident. (N.T. trial 4/14/99 at 15.) He suffered considerable pain, which caused sleeplessness for a week to a week and a half after the accident. (N.T. trial 4/14/99 at 16-17.) After physical therapy, he felt better, but still had bouts of pain when he stayed in the same position. (N.T. trial 4/14/99 at 20-21.) Thereafter, he continued to suffer from variable pain, headaches and nausea. He continues to live with those problems. (N.T. trial 4/14/99 at 25, 30-32.)

Defendant’s brief also refers to plaintiff’s testimony that he was not wearing his glasses at the time of the accident because he left work with a headache. Plaintiff had 20-40 vision, and a slight astigmatism in his left eye. (N.T. trial 4/14/99 at 38.) Defendant does not explain what this has to do with his argument, and we fail to see its significance in the context of an accident in which plaintiff’s vehicle was struck from the rear by defendant’s, and where liability was admitted. Defendant also argues that the impact between the vehicles was slight. This is not a basis for the grant of judgment n.o.v. sought by defendant.

Finally, defendant does not refer to the medical testimony at all in his brief. Even defendant’s expert conceded that plaintiff suffered harm in this accident, and questioned only its duration. (Klinghoffer video deposition at 27, 29, 31 and 40.)

A new trial may be granted because of the inadequacy of the verdict when the court’s conscience is shocked, or the verdict is so disproportionate to the uncontested evidence as to defy logic and common sense. The court’s decision to grant a new trial because of the inadequacy of the verdict may be reversed only for a gross abuse of discretion. Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995); Lewis v. Evans, 456 Pa. Super. 285, 690 A.2d 291 (1997).

In Neison v. Hines, 539 Pa. 516, 653 A.2d 634 (1995), the plaintiff was injured in a motor vehicle accident, suffered soft tissue injuries, strain and sprain, and was treated at a hospital. The defense asserted that the injuries lasted only a brief period of time, not that there were no injuries or pain and suffering at all. The Supreme Court held that a verdict that awarded no damages was properly set aside by the trial court. The court ruled that injuries which obviously cause pain are broken bones, stretched muscles, twists of the skeletal system, and injuries to a nerve or organ. 539 Pa. at 523, 653 A.2d at 638. Since injuries of that nature occurred, and because the defendant’s expert admitted that the plaintiff did suffer pain, a decision of the Superior Court reversing the grant of a new trial was reversed.

In Lewis v. Evans, 456 Pa. Super. 285, 690 A.2d 291 (1997), plaintiff was injured in an automobile accident. The jury found that defendant was liable, and that the wife-plaintiff-driver was negligent, but that her negligence was not a substantial factor causing her harm. The extent of the injury was contested, but both experts testified that the plaintiff suffered a strain or sprain of her back. Since the findings of the jury resolved the issue of liability, the award of a new trial limited to damages alone was upheld.

In Dougherty v. McLaughlin, 432 Pa. Super. 129, 637 A.2d 1017 (1994), the jury awarded the exact amount of the plaintiff’s medical expenses, but nothing for pain and suffering. The court held that because the nature of the injuries indicated at least some pain, the failure to award damages for pain and suffering was inconsistent with the award of medical expenses.

Defendant’s brief and concise statement of matters complained of on appeal assert that this case is controlled by Catalano v. Bujak, 537 Pa. 155, 642 A.2d 448 (1994). That was a case in which the Supreme Court deferred to the trial judge’s exercise of discretion refusing to grant a new trial. Plaintiff, who claimed injuries from handcuffs while being arrested by the defendant, did not complain of his injuries to hospital personnel when he was taken for blood alcohol testing. These minor injuries were not of a type which necessarily involves pain, so the trial court’s exercise of discretion was upheld.

Defendant’s brief also notes the Supreme Court’s decision in Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988). There, the Supreme Court reversed the trial court’s exercise of discretion in granting a new trial, but did so because the only stated reason was that the trial judge would not have set aside an award for pain and suffering “no matter how small.” There was no other explanation for the trial court’s decision, and the plaintiff’s claim of pain arose only from the tetanus shot that he was given following a dog bite.

In the present case, an injury of the type that ordinarily causes pain was confirmed by medical testimony, objective tests, an MRI, and the testimony of defendant’s examining physician. The only reason plaintiff was unable to work was pain, and the jury awarded damages for lost wages. Our sense of justice was shocked by the jury’s award of damages only for lost wages, so we granted a new trial.


author: LOUGHRAN, P.J.,

text:
    Saula v. Stewart Title Guaranty Co.

      C.P. of Westmoreland County,
    no. 4486 of 1999.

      Donald J. Snyder Jr., for plaintiffs.

      Graydon Brewer, for defendant Stewart Title.

      Margaret A. Tremba, for defendant National City.

      Christopher McNally, for defendants Dougherty and Greer.

      Christopher A. Feliciania, for defendant Dom D’Amato.

      H. Keith Hauger, for defendant Sana D’Amato.

      John M. Campfield, for defendant Colosimo.

      Jackie Kovacs, defendant, pro se.

      Matthew Anderson, defendant, pro se.
    February 2, 2000
   LOUGHRAN, P.J.,

This matter comes before the court for a determination of preliminary objections filed by one of the defendants, National City Bank of Pennsylvania, to the complaint in civil action filed by the plaintiffs, Lawrence W. Saula and Barbara P. Saula. The nature of the preliminary objections are a demurrer to Count V and a motion to strike.

This case arises from a series of events that cumulatively resulted in the purchase of properties located in the Woodhaven plan of lots, Hempfield Township, from the defendants, Dom D’Amato and Sana D’Amato, who did not have marketable title to the properties. The plaintiffs have brought action against the abstract company, the sellers, the developers, the real estate brokers and National City. National City holds the mortgage upon the property.

The preliminary objections of National City turn upon the question of whether there was a duty created between the bank and the plaintiffs as the purchasers. National City contends that there is no duty, that the title search was for its purpose only and not done to protect the plaintiff purchasers.

The pertinent facts to the preliminary objections filed by National City relate to National City’s role as a mortgagee of the plaintiffs and the activities taken by National City as the mortgagee as part of the acquisition process. The plaintiffs contend that National City, along with the real estate agents and the title insurer and its agents, knew of the problems associated with the title to the properties and did not inform the plaintiffs of the problems associated with the title. Further, the plaintiffs contend that National City dictated the identity of the title agent. Paragraph 31 of plaintiffs’ complaint alleges that the plaintiffs were placed in contact with National City for purposes of securing mortgage financing. National City required that the plaintiffs use the defendant, Greer Abstract, in a written directive (paragraph 32 and exhibit “E” to the plaintiffs’ complaint) as part of its commitment. Despite inquiry concerning the problems, the complaint alleges that the plaintiffs were assured by National City that legal counsel was not necessary for the process of acquisition of the properties. (Complaint, paragraph 40.)

The plaintiffs contend National City knew of the defects in the title, and the inconsistencies between the survey and the documents provided by the closing agent (complaint, paragraph 49) but proceeded with the closing (complaint, paragraph 39) allowing the plaintiffs to incur liability to National City under a note and mortgage.

Count V of the complaint alleges a cause of action in negligence against National City. Plaintiffs’ complaint in paragraph 79 alleges that the plaintiffs were required to use and were otherwise restricted in their selection of a title insurance agent and company by the expressed direction of National City and did not have legal counsel, use legal counsel or refer the plaintiffs to legal counsel, thereby causing the plaintiffs to be deprived of legal advice which would have prevented the problems in the title. Paragraph 81 of plaintiffs’ complaint alleges further negligence in that National City’s closing officers were aware of the defects in the title or should have been aware of defects in the title and that the plaintiffs relied upon National City’s assertions in protecting their interest. (Paragraph 82.)

It is plaintiffs’ position that these actions created an affirmative duty upon the bank and that the bank was more than a mere mortgage holder, but an active player that placed plaintiffs in their position.

In ruling on a preliminary objection in the nature of a demurrer, the court must accept as true all well-pleaded allegations in the complaint and all inferences reasonably deduced therefrom. Further, all doubts should be resolved against dismissal of the complaint. Stone & Edwards Insurance Agency v. Department of Insurance, 151 Pa. Commw. 266, 616 A.2d 1060 (1992). The court shall sustain preliminary objections and dismiss the complaint only in cases that are clear and free from doubt that the law will not permit recovery. Capital City Lodge No. 12, Fraternal Order of Police v. City of Harrisburg, 138 Pa. Commw. 475, 588 A.2d 584 (1991).

At this point in time, the preliminary objections of National City must be denied. The plaintiffs have pled sufficient facts which create a question of fact as to the duty undertaken by the bank. As such, preliminary objections are not appropriate

ORDER

And now, to wit, February 2, 2000, after review and careful consideration of the within matter, it is hereby ordered, adjudged and decreed that the preliminary objections of the defendant, National City Bank of Pennsylvania, are hereby denied.


author: CHESLOCK, J.,

text:
    Berry v. Van Why

      C.P. of Monroe County,
    no. 7124 Civil 1999.

      Joseph P. Hanyon, for plaintiff.

      George W. Westervelt, for defendant.
    January 14, 2000
   CHESLOCK, J.,

Plaintiff commenced this action by filing a complaint on September 23, 1999. On October 27, 1999, defendant filed an answer, new matter and counterclaim to said complaint. Plaintiff filed prehminary objections to defendant’s counterclaim on November 15, 1999 and a memorandum of law in support thereof on December 27, 1999. On January 3, 2000, defendant filed a brief in opposition to the preliminary objections. Oral argument was heard before this court on January 3, 2000. We are now ready to dispose of plaintiff’s preliminary objections.

Initially, we must set forth the particular facts of this case. On June 1, 1998, plaintiff, Arthur Berry III, and Pocono Entertainment Company Inc. entered into a commercial lease agreement with an option to purchase. Defendant, Joseph Van Why, is a shareholder of the corporation. In conjunction with the lease, defendant executed an agreement of unconditional guaranty. Under the guaranty, defendant agreed to be personally liable for the corporation’s indebtedness under the lease.

In late 1999, the corporation defaulted on its rental payments. On April 12, 1999, plaintiff filed a confession of judgment against the corporation for approximately $48,300. During the corporation’s appeals process, it filed for Chapter 7 bankruptcy. Thereafter, plaintiff instituted the instant action against defendant pursuant to the guaranty.

Defendant’s counterclaim alleges that plaintiff tor-tiously interfered with the corporation’s contractual and business relations. Prior to the filing of the confession of judgment, the corporation had entered into an agreement to sell the commercial real estate, subject of the lease, to a third party, Leonard Tagliavia, for $500,000. The corporation’s option purchase price under the lease was $375,000. Thus, the corporation would have gained a profit of $125,000 if the corporation/Tagliavia agreement had been executed. Defendant alleges that plaintiff knew of the corporation/Tagliavia agreement and filed the confession of judgment with the sole purpose of regaining possession of the property in order to sell said property to Tagliavia and receive the $125,000 profit. Plaintiff sold the real estate to Tagliavia.

Plaintiff raises the following preliminary objections to defendant’s counterclaim: (1) a preliminary objection in the nature of a demurrer to defendant’s counterclaim; (2) a preliminary objection in the nature of a demurrer to defendant’s demand of attorney’s fees and punitive damages; (3) a motion to strike the complaint for lack of conformity to 42 Pa.C.S. §25039; and (4) a motion to strike for lack of conformity to Pennsylvania Rule of Civil Procedure 1028(2). We will discuss each objection in turn.

Plaintiff’s first preliminary objection is in the nature of a demurrer to the counterclaim. “[A] demurrer is a preliminary objection that the pleadings fail to set forth a cause of action upon which relief can be granted under any theory of law.” Sutton v. Miller, 405 Pa. Super. 213, 221, 592 A.2d 83, 87 (1991). (emphasis in original) It will not be sustained unless the law says with certainty that no recovery is possible. Hull v. Rose, Schmidt, Hasley & DiSalle PC., 700 A.2d 996, 998 (Pa. Super. 1997). All material facts set forth in the complaint, as well as inferences reasonably deducible therefrom, are admitted as true. Webb Manufacturing Co. v. Sinoff, 449 Pa. Super. 534, 674 A.2d 723 (1996); Clifton v. Suburban Cable TV Co. Inc., 434 Pa. Super. 139, 142, 642 A.2d 512, 514 (1994). However, the court need not accept as true conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion. Penn Title Insurance Co. v. Deshler, 661 A.2d 461 (Pa. Commw. 1995), allocatur denied, 543 Pa. 699, 670 A.2d 145 (1995). In addition, a demurrer can only be granted in cases that are clear and free from doubt, and any doubt must be resolved against the non-moving party. Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994).

Plaintiff contends that defendant does not have standing to bring an individual suit against the plaintiff and therefore, the counterclaim must be dismissed. Thus, we must address whether defendant, a shareholder of the corporation, has standing to sue the plaintiff for tortious interference with the corporation/Tagliavia agreement.

A corporation is “distinct and separate from the individual shareholders. It has a real existence with rights and liabilities as a separate legal entity.” U.S. v. Sain, 141 F.3d 463, 474 (3d Cir. 1998), cert. denied, 119 U.S. 190. This is true even if a single individual owns and controls all of the corporation’s stock. Id. at 474. Thus, a shareholder, director, officer or employee does not have standing as an individual to bring an action against third parties for damages that are derivative of harm to the corporation. Adjusters Inc. v. Computer Sciences Corp., 818 F. Supp. 120, 121 (E.D. Pa. 1993); see also, Tyler v. O’Neill, 994 F. Supp. 603, 609 (E.D. Pa. 1998). However, there two exceptions to the general rule. First, a cause of action arises and belongs to an individual shareholder where he or she has pled an injury separate and distinct from that suffered by the corporation. Temp-Way Corp. v. Continental Bank, 139 B.R. 299, 316-17, aff’d, 981 F.2d 1248 (3d Cir. 1992). Second, an individual shareholder may bring a direct claim against the wrongdoer where there is a special duty, such as a contractual duty between the wrongdoer and the individual shareholder. Adjusters Inc., 818 F. Supp. at 121; Temp-Way Corp., 139 B.R. at 317. The general test for determining whether an action asserts a direct or derivative claim is:

“If the injury is one to the plaintiff as a stockholder and to him individually, and not to the corporation, as where the action is based on a contract to which he is a party, or a right belonging severally to him, or on a fraud affecting him directly, it is an individual action. On the other hand, if the wrong is primarily against the corporation, the redress for it must be sought by the corporation, except where a derivative action by a stockholder is allowable, and a stockholder cannot sue as an individual. The action is derivative, i.e., in the corporate right, if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock or property without any severance or distribution among individual holders, or if it seeks to recover assets for the corporation or to prevent the dissipation of its assets.” Tyler, 994 F. Supp. at 609-610.

In this case, defendant alleges that he lost $125,000, the amount that would have accrued to him as a shareholder of the corporation. Furthermore, defendant alleges that as a shareholder, he was forced to pay legal fees, costs and expenses to defend plaintiff’s confession of judgment suit. Defendant contends that these harms are injuries separate and distinct from the harm inflicted upon the corporation.

Upon consideration of plaintiff’s preliminary objections, the parties’ briefs, and oral argument heard thereon, we conclude that defendant has no standing as an individual to bring suit against the plaintiff. The damages alleged by the defendant are injuries sustained primarily by the corporation. Defendant was not a party to the lease. Furthermore, defendant was not a party to the corporation/Tagliavia agreement. Thus, if the corporation/Tagliavia agreement was executed, the corporation would realize the $125,000 profit, not defendant. Defendant would have received his “share” of said profit directly from the corporation, rather than directly from the plaintiff. Clearly, defendant’s financial losses are derivative of the harm suffered by the corporation.

In suits based on the diminution in value of corporate shares or profits resulting in the impairment of corporate assets, it has been consistently held that the primary wrong is to the corporate body. Kauffman v. Dreyfus Fund Inc., 434 F.2d 727, 732 (3d Cir. 1970). Accordingly, the shareholder, experiencing no direct harm, possesses no primary right to sue. Id.; see also, John L. Motley Associates Inc. v. Rumbaugh, 104 B.R. 683 (E.D. Pa. 1989), reconsideration denied, 1990 WL 59186 (holding that diminution in value of shares as a result of injury to corporation is not sufficient ground for shareholder to sue in his own right unless shareholder has suffered injury distinct from corporation’s injury).

Defendant further contends that the guaranty, which plaintiff required defendant to sign, created a relationship between plaintiff and defendant separate and distinct from plaintiff’s relationship with the corporation. This contention fails. Defendant’s status as a guarantor does not confer upon him an individual and personal cause of action against plaintiff. See Temp-Way Corp., 139 B.R. at 317 (guarantors on note executed to corporation do not have personal cause of action independent of harm suffered by corporation); Bohm v. Commerce Union Bank, 794 F. Supp, 158, 161 (W.D. Pa. 1992) (guarantor of loan to corporation has no standing to sue wrongdoer directly); Jordan v. Fox, Rothschild, O’Brien & Frankel, 787 F. Supp. 471, 474-75 (E.D. Pa. 1992), modified on other grounds, 20 F.3d 1250 (3d Cir. 1994) (officers of corporation who contributed resources and effort to vindicate corporation’s rights could not bring direct action for loss of those funds).

We conclude that defendant has no standing to bring an independent suit against plaintiff because the defendant’s harm is derivative of the harm suffered by the corporation. Thus, defendant’s counterclaim fails to set forth a cause of action upon which relief can be granted under any theory of law. Plaintiff’s first demurrer is sustained and defendant’s counterclaim is dismissed. Plaintiff’s three remaining preliminary objections have been rendered moot due to defendant’s lack of standing and will not be addressed.

Accordingly, we enter the following order:

ORDER

And now, January 14, 2000, plaintiff’s preliminary objection in the nature of a demurrer against defendant’s counterclaim is hereby sustained. Defendant’s counterclaim against plaintiff is hereby dismissed. Plaintiff’s remaining preliminary objections are hereby dismissed as moot.

      . Plaintiff was the lessor and corporation was the lessee.

      . The parties stipulated that the November 1998 payment due by the defendant to the plaintiff was never paid. See Arthur Berry III v. Pocono Entertainment Co. Inc., no. 2900 Civil 1999 (C.C.P. Monroe, filed My 21, 1999).

      . See Arthur Berry III v. Pocono Entertainment Co. Inc., no. 2900 Civil 1999 (C.C.P. Monroe, filed April 12, 1999).

      . On April 27, 1999, Pocono Entertainment Co. Inc. filed a petition to open the confession of judgment. This court denied said motion. Pocono Entertainment Co. Inc. then filed a motion to reconsider. This court denied said motion after a full hearing on the merits. On June 24,1999, Pocono Entertainment Co. Inc. filed a notice of appeal with the Monroe County Court of Common Pleas and the Pennsylvania Superior Court. Plaintiff filed a motion to quash said appeal. On September 2, 1999, the Pennsylvania Superior Court issued an order dismissing said appeal without prejudice due to the bankruptcy proceedings and denying plaintiff’s motion to quash as moot. See Arthur Berry III v. Pocono Entertainment Co. Inc., no. 2900 Civil 1999 (C.C.P. Monroe, filed October 7, 1999).

      . In his brief, defendant continues to argue that plaintiff was not entitled to enter a confession of judgment against Pocono Entertainment Co. Inc. and that the confession of judgment is invalid. After a hearing on May 25, 1999 and a reconsideration hearing held on June 22,1999, this court held that the confession of judgment is valid. Defendant is rearguing issues which have already been litigated before this court. These arguments will not be addressed yet again by this court. Defendant has the opportunity to make these arguments to the Superior Court of Pennsylvania.

      . See deed recorded at the Monroe County Recorder of Deeds office, record book volume 2072, page 0362, dated November 19, 1999.

      . Throughout defendant’s counterclaim, said sales agreement was consistently referred to as the “Pocono Entertainment/Tagliavia contract.”


author: OLER, J.,

text:
    Hockley v. Hockley-Arhondakis

      C.P. of Cumberland County,
    no. 98-2260 Civil Term.

      Diane G. Radcliff, for plaintiff.

      Samuel W Milkes, for defendant.

      R Richard Wagner, for child.
    March 28, 2000
   OLER, J.,

This case presents the question of whether a custody order which affords a noncustodial parent minimal periods of partial custody can be enforced where the custodial parent and teenage child refuse to cooperate with the order. The immediate issue for resolution is the sanction to be imposed upon the custodial parent for contempt of the custody order.

PROCEDURAL HISTORY; STATEMENT OF PERTINENT FACTS

The plaintiff is Garry Lynn Hockley, an adult individual residing at 432 Hidden Valley Road, New Cumberland, Cumberland County, Pennsylvania. The defendant is Sherri Hockley-Arhondakis, an adult individual residing at 915 Magnolia Drive, Enola, Cumberland County, Pennsylvania. The parties are the parents of Garry Lynn Hockley Jr., who was born on June 7, 1986, and is presently 13 years old.

Pursuant to a November 27, 1995 Adams County order of court, entered by agreement of the parties at a time when Father was stationed with the army in Kentucky, Mother was granted primary legal and physical custody of the child and Father was granted partial custody rights. On April 28, 1998, Father filed the present Cumberland County action to expand his custodial rights. The effect of this filing was described, credibly in the court’s view, by Father as follows:

“Q. Mr. Hockley, you heard Sherri testify about your visitation. Can you tell me when it ended?
“A. May 3, 1998.
“Q. And was that concurrently with you filing for custody?
“A: Yes.
“Q. And to your knowledge, why was your visitation stopped?
“A. May 4,1 received a phone call from Sherri, telling me that, you’re not going to take my son away from me....
“Q. What was your understanding as to why your visitation stopped? You said you got a phone call?
“A. I received a phone call from Sherri in reference, I’m not going to take my son away from her. Just went on and on. I had no intentions of taking [him] from her. I just wanted a stable visitation. That’s why I filed a visitation order (sic).”

As of the present time, Father has not seen the child for almost two years.

A custody hearing was held by this court on August 20,1999. At the hearing, two of the circumstances which impressed themselves most forcibly upon the court were the extremely close bond between Mother and the parties’ child, and Mother’s intense hatred for Father. Following the hearing, the court entered the following order, which was not appealed, affording Father minimal partial custody rights:

“And now, August 23, 1999, upon consideration of plaintiff’s custody modification complaint with respect to the parties’ child, Garry L. Hockley Jr. (d.o.b. June 7, 1986), and following a hearing held on August 20,1999, it is ordered and directed as follows:
“(1) Legal custody of the parties’ child shall be shared by the parties.
“(2) Primary physical custody of the child shall be in Mother. Temporary or partial physical custody of the child shall be in Father at the following times:
“(a) During the next month, at two sessions with Dr. A. Jose Delerme [the child’s psychologist], the expense of which shall be borne by Father;
“(b) During the succeeding two months, on alternating Saturdays from 10 a.m. until 7 p.m.;
“(c) During the following four months, on alternating weekends from Saturday at 10 a.m. until Sunday at 7 p.m.
(3) At the conclusion of the seven-month period provided for in paragraph 2 of this order, either party may petition for a modification of this order based on circumstances then existing.
“(4) Neither party shall inflict corporal punishment upon the child.
“(5) Neither party shall make his or her home available to the child during the other’s periods of custody or otherwise accommodate a lack of adherence to the terms of this order.
“(6) Transportation for purposes of exchanges of custody shall be the responsibility of the party who is yielding custody to the other, unless otherwise mutually agreed.

After receiving this order, Mother told the child that “the court case that we had did not go in his favor, our favor.” Not surprisingly, upon receipt of this construction of the order, the child threw a tantrum.

The order of August 23, 1999 has never been complied with by Mother or child. Although Mother responded, “Very much so,” when asked whether she felt she had control over the child, her position was that she was helpless to comply with the order in the face of her son’s opposition to its terms. However, the child described an effort on her part as follows:

“Q. Now, what has your mom told you about going to visit with your dad?
“A. Every time that it was scheduled, she would ask me, do you want to go see him? I would say no. She said, the judge said you have to go. I would keep saying, no, I don’t want to go. Then she said, fine.
“Q. So, did she tell you that you had to go?
“A. She said — what she said was that I was supposed to go see him, and she would ask me every time I was supposed to go see him, do you want to go see your dad, and I said no.
“Q. Then she said fine?
“A. She would say, well, I can’t make you.”

On the subject of his perception of his mother’s sincerity in encouraging his compliance with the directed contact with his father, the child testified as follows:

“Q. Did she ever encourage you to go, tell you that she wanted you to go?
“A. Yes.
“Q. Did you believe her?
“A. No.”

The court’s perception of the message being conveyed by Mother to the parties’ child is the same as the child’s. Mother was found in contempt of the custody order of August 23, 1999, following a hearing. At the conclusion of the hearing, the court encouraged the parties to comply with the custody order.

A hearing on the issue of sanctions for the contempt was held on March 2, 2000. At the hearing, it was evident that the order remained uncomplied with. Evidence presented by Father established that he had incurred attorney’s fees in the amount of $3,165 in connection with the contempt proceedings.

At the conclusion of the hearing, the court took the matter of sanctions under advisement, making these observations prior to adjournment:

“This is a very difficult case, obviously. When a family has disintegrated to the extent that this family has, the responsibilities of the members with respect to custody and support cannot be resolved by common understanding, and the rights of the members cannot be protected by leaving them to other members to determine.
“And as I tried to say at the last hearing, that is why we have courts, and that is why court orders have to be obeyed. If a decision of a court is felt to be wrong and not supported by the evidence, the remedy is through the appeal process and not through disobedience of the order. The appellate courts, as the attorneys know in this case, have very broad powers with respect to appeals from custody orders.
“This is not an involuntary termination of parental rights case. It is a custody case. And both parents have some right to custody or visitation. Again, as I tried to explain at the last hearing, the order that I entered on August 23 of last year provided the most minimal custodial rights on the part of the defendant, and initially called for mere participation in joint counseling sessions.
“That order was not appealed. Instead, it was simply not obeyed. As far as I’m aware, and I think the testimony today has borne it out, the father has not been able to have any contact with the child since the order was entered. And this denial of contact started after he filed a petition for expanded custody rights.
“It seems to be that the mother in this case, as the custodial parent, has a duty to do more than merely acquiesce in the child’s preference with respect to the custody order. I did take into account the child’s preference in entering the very limited order with respect to partial custody on the part of the father that I did.
“I do not think that the mother has acted totally in good faith in this proceeding, although I understand it is a difficult situation for all parties... .
“As I said at the last hearing, I’m awfully sorry that the parties are unable to get along. I think a good deal of hate has injected itself into the proceeding, and I think that has affected the child adversely....”

DISCUSSION

A custodial parent has an obligation to obey the terms of a child custody order as they pertain to the noncustodial parent’s rights and to cooperate in its effectuation. See English v. English, 322 Pa. Super. 234, 469 A.2d 270 (1983); see also, Guadagnino v. Montie, 435 Pa. Super. 603, 646 A.2d 1257 (1994) (term requiring custodial parent to deliver child). The fact that the custodial parent does not believe that the order is in the child’s best psychological interest does not justify its violation. English v. English, 322 Pa. Super. 234, 241-42, 469 A.2d 270, 273 (1983).

Enforcement of custody orders through the contempt process is provided for in the Pennsylvania Rules of Civil Procedure. See Pa.R.C.P. 1915.12. It is the commonly used process for securing compliance by a parent who fails to adhere to an order. See e.g., Lambert v. Lambert, 409 Pa. Super. 552, 598 A.2d 561 (1991).

Sanctions for contempt of a custody order may rise to the level of imprisonment, subject to a condition of purge. Pa.R.C.P. 1915.12; see Shaw v. Shaw, 719 A.2d 359 (Pa. Super. 1998). In general, sanctions for civil contempt include reimbursement of the other party for attorney’s fees and payment of a monetary amount to the court. See e.g., Commonwealth ex rel. Novack v. Novack, 310 Pa. Super. 112, 456 A.2d 208 (1983).

In the present case, the defendant has been, in the court’s view, clearly and persistently in violation of paragraphs two (rights of noncustodial parent to partial custody), five (responsibility not to accommodate child’s recalcitrance), and six (responsibility to transport child to exchange) of the custody order of August 23, 1999. For this reason, she was adjudicated in contempt on February 2, 2000.

At the hearing on the issue of sanctions held on March 2, 2000, it was apparent that defendant has remained noncompliant with the order. The following order of court will therefore be entered, without prejudice to the plaintiff’s right to initiate a new contempt proceeding, seeking more coercive sanctions, in the event that the order continues to be disobeyed.

ORDER

And now, March 28, 2000, upon consideration of the plaintiff’s petition for contempt in the above-captioned matter, following a hearing on January 31, 2000 which resulted in an adjudication of contempt, and a hearing on March 2, 2000 on the issue of sanctions, and for the reasons stated in the accompanying opinion, defendant is directed to reimburse the plaintiff for attorney’s fees in the amount of $3,165 and to pay the sum of $500 to the prothonotary, within 30 days of the date of this order.

      . N.T. 4, hearing, March 2, 2000.

      . N.T. 75-76, hearing, January 31, 2000.

      . N.T. 99, hearing, January 31, 2000.

      . Plaintiff’s exhibit 1, hearing, August 20, 1999.

      . N.T. 59, hearing, March 2, 2000.

      . N.T. 60, hearing, March 2, 2000.

      . N.T. 54, hearing, March 2,2000. At one point during this period, Father agreed to forgo visitation or partial custody because of the child’s estrangement from him. See order of court, September 30, 1999.

      . Order of court, August 23, 1999. (emphasis added)

      . N.T. 78, hearing, January 31, 2000.

      . N.T. 78, hearing, January 31, 2000.

      . N.T. 84, hearing, January 31, 2000.

      . N.T. 83-84, hearing, January 31, 2000.

      . N.T. 111-12, hearing, January 31, 2000.

      . N.T. 112, hearing, January 31, 2000.

      . Order of court, February 2, 2000.

      . N.T. 131, hearing, January 31, 2000.

      . N.T. 5-6, hearing, January 31, 2000.

      . Plaintiff’s exhibit 1, hearing, March 2, 2000.

      . Although a difficult case, the court was reluctant to agree with defendant’s (former) counsel that the difficulty was comparable to that faced by the federal judge who ordered John L. Lewis and the United Mine Workers back to work. N.T. 126, hearing, January 31, 2000.

      . N.T. 65-66, hearing, March 2, 2000.

      . N.T. 67, hearing, March 2, 2000.


author: SANCHEZ, J.,

text:
    Harrington v. PennDOT

      C.P. of Chester County,
    no. 99-05390.

      Kenneth R. Werner, for petitioner.

      Wm. Christopher Duerr, for PennDOT.
    March 24, 2000
   SANCHEZ, J.,

Petitioner, Elizabeth Harrington, filed a petition for appointment of a board of viewers on June 25,1999 and by order of the court of common pleas, Chester County, a board was appointed. The Commonwealth filed preliminary objections to the petition. Upon review, this court determined that the aver-ments of the petition taken as true may establish a de facto taking and, accordingly, held an evidentiary hearing on the matter on February 28, 2000 so that a judicial determination could be made. Friedman v. City of Philadelphia, 94 Pa. Commw. 572, 503 A.2d 1110 (1986).

STATEMENT OF FACTS

Petitioner, Elizabeth Harrington, is the owner of property located at 894 Horseshoe Pike, U.S. Route 322, East Brandywine Township, Chester County, Pennsylvania, tax parcel no. 30-5-221.1, which she purchased on June 10, 1960. U.S. Route 322 is maintained by the Commonwealth of Pennsylvania’s Department of Transportation. PennDOT has, over a period of time, executed contracts with various contractors for the repair, maintenance, construction and widening of Route 322 within East Brandywine Township, abutting and extending from the west property line to the east property line of petitioner’s property.

As a result of these contracts, the Commonwealth has substantially altered the profile of U.S. Route 322 which, in turn, has substantially impacted petitioner’s property to her detriment and loss. Petitioner contends that as a result of the necessary repair, maintenance, construction, widening and excavation for the repair, regrading and widening of Route 322, and as a necessary and unavoidable consequence of the work, petitioner’s property has been so damaged that she has been substantially deprived of the use and enjoyment of the land. She has suffered flooding within her home from rain and water runoff, damage from snowplows, damage from automobiles running into her home, damages resulting from the change of grade of the highway, and permanent interference with any reasonable and safe access to her property.

DISCUSSION

Petitioner contends that the aforementioned damages are the immediate, necessary and unavoidable consequence of PennDOT’s continuous actions as described above. The issue before this court is whether the petitioner has established the Commonwealth’s actions tantamount to a de facto condemnation of her property.

A de facto taking occurs when an entity clothed with the power of eminent domain substantially deprives an owner of the use and enjoyment of his or her property. In re Property Situate Along Pine Road in Earl Township, 743 A.2d 990 (Pa. Commw. 1999). It is petitioner’s burden to show exceptional circumstances which deprive her of the use and enjoyment of her property. She must also show that these circumstances are the direct and necessary consequence of the Commonwealth’s actions. Lehigh-Northampton Airport Authority v. WBF Associates, 728 A.2d 981 (Pa. Commw. 1999). There is no bright line rule of law used to determine whether there has been a de facto taking. Instead, each decision must be made on a case by case basis. Id. For this reason, the facts and circumstances of this particular case are crucial to our analysis and conclusion.

The evidence shows that the repair, regrading and widening of the highway has caused such severe damage that petitioner has been forced to leave her home on certain occasions. Despite her persistent complaints, she continues to incur damage from snowplows. Petitioner has been forced on several occasions to take protective actions, such as boarding the doors and windows of the premises. She has suffered broken doors, windows, damage to her car and to the exterior of her home.

Further, PennDOT raised the aforementioned highway 4.5 inches which caused a 121/2-13 percent vertical slope to petitioner’s property. This raise in the highway causes continuous flooding. PennDOT also paved the gravel shoulder of the highway which had, at one time, absorbed some of the water running down the aforementioned slope. As a result, petitioner, who is an elderly and slight woman, has been forced to carry 30-40 pound sandbags to the edge of her property in order to deter some of the flooding. Furthermore, automobiles have run into her home due to the change in the profile of Route 322. These actions have interfered with a reasonable and safe access to petitioner’s property.

The interruptions, interference and deprivation that petitioner has alleged are substantial and continuously impede upon the use and enjoyment of her property. This interference is permanent in nature. This deprivation of property has resulted in a substantial decrease to the value of the property. This is a persistent and relentless nightmare for petitioner and is a direct result of PennDOT’s actions. Accordingly, we find there has been a de facto taking and petitioner should be adequately compensated for the deprivation of the use and enjoyment of her property.

ORDER

And now, March 24, 2000, it is hereby ordered and decreed that the Commonwealth of Pennsylvania’s preliminary objections are dismissed and Elizabeth Harrington’s petition for the appointment of a board of viewers is granted consistent with the order signed by this court on June 25, 1999.


author: NEALON, J.,

text:
    Dean v. Community Medical Center

      C.P. of Lackawanna County,
    no. 99-CV-4708.

      Joseph P. Lenahan and Anthony P. Trozillo, for plaintiff.

      Michael P. Perry, for defendant Community Medical Center.

      David W Saba and Laura J. Endler, for defendants Dressel and Scranton Cardiovascular.

      Robin B. Snyder, for defendant Lawrence.

      James M. Howley and James A. Doherty, for defendants Serine and Alocci.

      Mark T Perry, for defendants Rigau and Falcon.
    May 15, 2000
   NEALON, J.,

Several physicians who have been named as defendants in this wrongful death lawsuit have demurred to the punitive damages claims filed against them. Since the alleged actions of those defendants, Christopher J. Dressel Jr. M.D., Scranton Cardiovascular Group Inc., Saul Rigau D.O., and John G. Falcon M.D., do not constitute willful, wanton or reckless behavior, the preliminary objections will be granted and the exemplary damages claims filed against those parties will be dismissed.

FACTUAL BACKGROUND

The estate and personal representatives of the decedent, Ann M. Dean, have instituted this medical negligence proceeding seeking to recover compensatory and punitive damages against a host of health care providers who formerly treated the decedent. According to the allegations of the complaint which must be accepted as true for purposes of considering the instant preliminary objection, Dean suffered a myocardial infarction in 1987 for which she underwent angioplasty and thrombolytic therapy. Dean experienced a second myocardial infarction in 1991, as a result of which she sustained “heart valve damage” that increased her risk of bacterial en-docarditis. Defendant, Christopher J. Dressel Jr. M.D., of Scranton Cardiovascular' Group Inc., treated Dean following her second myocardial infarction and reportedly “made a very strong recommendation to [Dean’s] family physician, Dr. Maxwell, that [Dean] should undergo SBE prophylactic antibiotics before any type of future invasive and/or surgical procedure, even dental work, to prevent any bacterial infection of her damaged heart valve.” (See plaintiff’s complaint, ¶¶16-19.)

Seven years later, Dean was examined by defendant, Enrico Serine M.D., in August 1998 at a time when Dr. Serine practiced medicine with defendant, Michael Alocci M.D., and defendant, Salvatore Lawrence Jr. M.D. (Id., ¶¶5-8, 20.) After a stress test and EKG were performed and revealed coronary artery disease, Dr. Serine referred Dean to Dr. Dressel and SCG Inc. (Id., ¶¶21-23.) On September 28, 1998, Dr. Dressel performed a cardiac catheterization procedure at defendant, Community Medical Center, which apparently identified three blockages that Dr. Dressel repaired via angioplasty and stent replacement. Dean contends that contrary to his recommendation seven years earlier, Dr. Dressel neglected to administer SBE prophylactic antibiotics prior to performing that procedure. (Id., ¶¶25-28.)

Dean further maintains that although she developed bleeding at the site of the catheter insertion, she was discharged by Dr. Alocci from CMC on September 30,1998. (Id., ¶¶30-31.) On October 12,1998, Dr. Serine referred Dean back to Dr. Dressel after her blood work indicated that she was anemic. Dr. Dressel allegedly diagnosed a “pseudo-aneurysm at the site of the catheter insertion from the September 29, 1998 heart catheterization” and admitted Dean to the Mercy Hospital for two days to “treat this condition with compression by the Mercy Hospital ultrasound unit.” Dean asserts that her pseudo-aneurysm further increased the risk of developing bacterial infection or endocarditis. (Id., ¶¶34-36.)

On October 20,1998, Dr. Dressel performed a second cardiac catheterization at the CMC which included “a circumflex coronary angioplasty with rotorblade and stent placement.” (Id., ¶¶39-40.) Once again, SBE prophylactic antibiotics were not administered before that procedure and Dean later developed another pseudo-aneurysm. (Id., ¶¶40-41.) Despite the fact that Dean experienced an “elevated temperature and neutrophilia with an elevated neutrophilia count” indicative of a potential bacterial infection, Dr. Dressel and the attending physicians discharged Dean from the CMC on October 22, 1998. (Id., ¶¶43-44.)

On October 24, 1998, Dean contacted Dr. Lawrence with complaints of a fever, chills, nausea and lethargy and was advised by Dr. Lawrence to report to the CMC emergency department. (Id., ¶¶45-47.) At that time, Dean was examined by the CMC emergency room physician, defendant, Saul Rigau D.O., “who made a provisional diagnosis of acute fever and viral syndrome” and discharged her from the CMC. Dean contends that Dr. Rigau should have admitted her “to the hospital with a diagnosis of endocarditis and implemented an intravenous course of penicillin in combination with gentamycin.” (Id., ¶¶49, 55.)

Dean avers that she contacted the office of Drs. Lawrence, Serine and Alocci on October 26, 1998, October 29, 1998, and October 30, 1998, but “was denied an appointment” since she was “advised by the office staff that the office was overbooked.” (Id., ¶¶59,61.) On October 30,1998, she began to experience redness, soreness and puffiness around her right ankle and was eventually examined by Dr. Alocci on November 2, 1998, who diagnosed her ailment as gout. (Id., ¶¶61-63.) Dean submits that Dr. Alocci misdiagnosed her condition at that time since her “symptoms as they were related to her right ankle was [sic] probably streptococcus or bacterial infection which had spread to her joints.” (Id., ¶64.) Following a telephone call to Dr. Alocci’s office on November 5, 1998, Dean was instructed to present herself to the CMC emergency room where she was examined by defendant, John G. Falcon M.D. (Id., ¶¶68-72.)

Dean maintains that Dr. Falcon failed to review her prior medical records, neglected to order diagnostic testing on a timely basis and did not promptly refer her to an infectious disease specialist. (Id., ¶¶73-75.) Dr. Falcon reportedly diagnosed Dean’s condition as “febrile illness, possible sepsis, possible endocarditis, cerebral infarction, and hypokalemia” and CT scans performed at that time allegedly revealed a “brain bleed.” (Id., ¶¶78-81.) Dean died at the CMC three days later on November 8,1998, and a subsequent autopsy identified the cause of death as a “ruptured bacterial cerebral aneurysm due to acute bacterial endocarditis.” (Id., ¶¶82-83.)

In the complaint which is comprised of 143 paragraphs, Dean asserts 12 separate causes of action against the treating health care providers. With respect to Dr. Dressel, Dean alleges that Dr. Dressel was “reckless and grossly negligent” for failing to administer SBE prophylactic antibiotics prior to the cardiac catheterizations, discharging her from the CMC on October 22, 1998, with neutrophilia and “early signs of a bacterial infection,” neglecting to timely diagnose “streptococcus causing it to escalate into life-threatening bacterial endocardi-tis,” and “causing multiple pseudo-aneurysm [sic] to develop when performing cardiac catheterizations.” (Id., ¶111.) Dean further contends that punitive damages should be assessed against Dr. Dressel since he acted “with a conscious and recklessness [sic] indifference to the safety and health of [Dean]” by failing “to heed his own warning and administer ... SBE prophylactic antibiotics prior to or after either of the surgical procedures he performed.” (Id., ¶112.) In addition to seeking compensatory damages from SCG Inc. based upon a theory of corporate liability, (id., ¶¶114, 115), Dean also demands punitive damages from SCG Inc. by maintaining that it “is causally negligent for the reckless and grossly negligent acts of defendant Dressel on the basis of vicarious liability.” (Id., ¶¶117-18.)

As to Dr. Rigau, Dean avers that Dr. Rigau is liable for compensatory and exemplary damages for improperly diagnosing Dean’s condition, prematurely discharging her from the CMC on October 24, 1998, failing to request an infectious disease consultation, neglecting to review her prior medical records when assessing her condition and failing to timely communicate her diagnostic testing results to her. (Id., ¶120.) Dean advances comparable allegations against Dr. Falcon, (id., ¶125), and asserts that Dr. Rigau and Dr. Falcon are accountable for punitive damages since they acted “with a conscious and reckless indifference to the safety of [Dean].” (Id., ¶¶123, 127.) Similar contentions are made with respect to Dr. Lawrence, Dr. Serine, Dr. Alocci and the CMC. (Id., ¶¶95, 97, 99, 101, 103, 105, 134, 136.)

On January 19, 2000. Dr. Dressel and SCG Inc. filed preliminary objections seeking to strike Dean’s punitive damages claims, and on January 26,2000, Dr. Rigau and Dr. Falcon likewise demurred to the demand for exemplary damages. The parties subsequently filed their respective memoranda of law, and following the completion of oral argument on May 1, 2000, this matter was submitted for a decision.

II. DISCUSSION

(A) Standard of Review

The core issue presented by a demurrer is whether on the facts averred, the law says with certainty that recovery under the theory alleged is not possible. Estate of Witthoeft v. Kiskaddon, 557 Pa. 340, 343 n.1, 733 A.2d 623, 624 n.1 (1999). A demurrer admits all well-pleaded material facts set forth in the complaint, as well as all inferences reasonably deducible from those facts. Lowther v. Roxborough Memorial Hospital, 738 A.2d 480, 489 (Pa. Super. 1999). However, the court need not accept the pleader’s conclusions of law, unwarranted inferences from facts, opinions, or argumentative allegations. Wiernik v. PHH U.S. Mortgage Corporation, 736 A.2d 616, 619 (Pa. Super. 1999).

To sustain a demurrer, it is essential that the complaint demonstrate on its face that the claim being advanced cannot be sustained as a matter of law. PennDOT v. Wilkinsburg Penn Joint Water Authority, 740 A.2d 322, 324 (Pa. Commw. 1999). The novelty of a claim or theory in and of itself does not compel the affirmance of a demurrer. Denton v. Silver Stream Nursing and Rehabilitation Center, 739 A.2d 571, 575 (Pa. Super. 1999). Furthermore, if a doubt exists as to whether a demurrer should be sustained, that doubt should be resolved in favor of overruling the demurrer. Estate of Witthoeft, supra; Denton, supra.

(B) Recovery of Punitive Damages in Medical Negligence Litigation

Pennsylvania courts have always permitted a patient to recover exemplary damages in a medical malpractice case provided that the health care provider’s actions are so outrageous as to rise to the level of intentional, willful, wanton, outrageous or reckless conduct. See Medvecz v. Choi, 569 F.2d 1221, 1227-30 (3d Cir. 1987); Hoffman v. Memorial Osteopathic Hospital, 342 Pa. Super. 375, 383, 492 A.2d 1382, 1386-87 (1985). In 1997, the General Assembly enacted section 812-A of the Health Care Services Malpractice Act, 40 P.S. §1301.101 et seq., which states that “[p]unitive damages may be awarded for conduct that is the result of the health care provider’s willful or wanton conduct or reckless indifference to the rights of others.” 40 PS. §1301.812-A(a). The HCSMA amendments further clarify that in the context of a medical negligence claim, “[a] showing of gross negligence is insufficient to support an award of punitive damages.” 40 P.S. § 1301.812A(b). In that regard, section 812-A is simply a codification of well-settled common law governing exemplary damages. See SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 495, 587 A.2d 702, 705 (1991). Accord Cochrane v. Clyne, no. 95-CV-5145, Nealon, J., at pp. 3-5 (Lacka. Cty. December 23, 1999), petition for review denied, no. 13 MDM 2000 (Pa. Super. April 19, 2000).

However, section 812-A did substantively modify Pennsylvania law regarding the vicarious liability of a health care provider for punitive damages based upon the conduct of its agent. Our Commonwealth has long recognized that a principal may be held accountable for punitive damages solely on the basis of vicarious liability provided that the actions of the agent were not beyond the scope of the agency relationship. Lake Shore & Michigan Southern Railway Co. v. Rosenzweig, 113 Pa. 519, 534, 6 A. 545, 553 (1886); Banas v. Matthews International Corporation, 348 Pa. Super. 464, 494 n.4, 502 A.2d 637, 652 n.4 (1985). Cf. Butterfield v. Giuntoli, 448 Pa. Super. 1, 19-20, 670 A.2d 646, 655 (1995), app. denied, 546 Pa. 635, 683 A.2d 875 (1996) (although an insurer need not indemnify an insured for punitive damages based on direct liability, an insurer has a duty to indemnify its insured for punitive damages awarded based upon vicarious liability). Such vicarious liability may be imposed even though the agent did not commit the tort at the direction of the principal, or the principal did not ratify the act. Shiner v. Moriarty, 706 A.2d 1228, 1240 (Pa. Super. 1998), app. denied, 556 Pa. 711, 729 A.2d 1130 (1998). In fact, Pennsylvania has expressly declined to adopt section 909 of the Restatement (Second) of Torts which conditions vicarious liability for punitive damages upon some knowledge or authorization on the part of the principal. See e.g., Dean Witter Reynolds Inc. v. Genteel, 346 Pa. Super. 336, 348-49, 499 A.2d 637, 643 (1985), app. denied, 514 Pa. 639, 523 A.2d 346 (1987).

Section 812-A(c) has revised that vicarious liability standard as it applies to health care providers and states:

“Punitive damages shall not be awarded against a health care provider who is only vicariously liable for the actions of its agent that caused the injury unless it can be shown by a preponderance of the evidence that the party knew of and allowed the conduct by its agent that resulted in the award of punitive damages.” 40 P.S. §1301.812-A(c).

Unlike other provisions of sections 812-A, the vicarious liability amendments to 40 P.S. § 1301.812-A(c) were not suspended by the Supreme Court of Pennsylvania. See Shumek v. Scranton Counseling Center, 100 Lacka. Jur. 173, 180 (1999). Hence, with the advent of section 812-A and its injection of a scienter element into the respondeat superior equation, a health care provider may not be vicariously liable for exemplary damages unless it had actual knowledge of the wrongful conduct of its agent and nevertheless allowed it to occur.

Under either section 812-A or Pennsylvania case law, punitive damages are not liable for simple or gross negligence, see Althaus by Althaus v. Cohen, 710 A.2d 1147, 1159 (Pa. Super. 1998), app. granted, 556 Pa. 701, 729 A.2d 1124 (1998), but may be awarded for willful or wanton behavior or “where the defendant’s conduct evidences a ‘reckless indifference to the rights of others.’ ” Taylor v. Albert Einstein Medical Center, 723 A.2d 1027, 1037 (Pa. Super. 1998), app. granted, 559 Pa. 706, 740 A.2d 234 (1999); Doe v. Dr. Bernard J. Curran, 45 D.&.C.4th 544 (Lackawanna Cty. 2000). Wanton conduct requires a state of mind in which the tort-feasor realizes the danger to the plaintiff and disregards it to such a degree that “there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.” Lewis v. Miller, 374 Pa. Super. 515, 520, 543 A.2d 590, 592 (1988); Stubbs v. Frazer, 308 Pa. Super. 257, 260, 454 A.2d 119, 120 (1982). Reckless indifference “means that ‘the actor has intentionally done an act of an unreasonable character, in disregard to a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’ ” McClellan v. Health Maintenance Organization of Pennsylvania, 413 Pa. Super. 128, 145, 604 A.2d 1053, 1061 (1992), app. denied, 532 Pa. 664, 616 A.2d 985 (1992); Shumek, 100 Lacka. Jur. at 179.

The well-pleaded facts of the complaint merely accuse Dr. Dressel of erroneous diagnoses and performing invasive procedures without first administering SBE prophylactic antibiotics as he had previously recommended, thereby causing Dean to develop pseudoaneurysms and endocarditis which resulted in her demise. The complaint is also devoid of any indication that Dr. Dressel’s principal, SCG Inc. knew of his misconduct and allowed it to occur such that it could be held vicariously liable under section 812-A(c). Dr. Rigau and Dr. Falcon are likewise charged with nonfeasance for misdiagnosing Dean’s condition, prematurely discharging her from the hospital and failing to refer her to an appropriate specialist. Even examining those allegations in a light most favorable to Dean, the conduct of those physicians can only be characterized as ordinary negligence, or at most gross malpractice, which cannot serve as the predicate for punitive damages.

The actions of the attending physicians were not so egregious as to rise to the level of willful, wanton or reckless behavior. Compare Hoffman, supra (evidence that emergency room physician allowed a Guillain-Barre syndrome patient with neurological paralysis to remain crying, and immobile on the floor for two hours as the physician repeatedly stepped over him and told him that there was nothing wrong, was sufficient to establish the requisite evil motive and reckless indifference for punitive damages); Medvecz, supra (anesthesiologist who abandoned a patient on the operating room table and left the operating room to go to lunch without securing a suitable replacement could be liable for exemplary damages to a patient who suffered irreversible paralysis from an anesthesiology complication that developed in his absence). Punitive damages are designed to punish and deter outrageous conduct, G.J.D. and D.K. by G.J.D. v. Johnson, 552 Pa. 169, 172, 713 A.2d 1127, 1129 (1998), and Dean has not identified any actions by her health care providers warranting such a penal response. Therefore, the preliminary objections in the nature of a demurrer to the claims for punitive damages will be granted.

ORDER

And now, May 15, 2000, upon consideration of the preliminary objections of defendants, Christopher J. Dressel Jr. M.D., Scranton Cardiovascular Group Inc., Saul Rigau D.O. and John G. Falcon M.D., the memo-randa of law submitted by the parties and the oral argument of counsel, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The preliminary objections in the nature of a demurrer filed by defendants, Christopher J. Dressel Jr. M.D., Scranton Cardiovascular Group Inc., Saul Rigau D.O., and John G. Falcon M.D., are granted;

(2) The punitive damages claims filed by the plaintiff against defendants, Christopher J. Dressel Jr. M.D., Scranton Cardiovascular Group Inc., Saul Rigau D.O., and John G. Falcon M.D., are dismissed; and

(3) Within 20 days of the date of this order, defendants, Christopher J. Dressel Jr., M.D., Scranton Cardiovascular Group Inc., Saul Rigau D.O., and John G. Falcon M.D., shall file a responsive pleading to the complaint.

      . Drs. Rigau and Falcon also objected to ¶¶120(h)-(i) and 125(h)-(i) of the complaint as overly general and vague, but at the time of oral argument, counsel for Dean and Drs. Rigau and Falcon resolved those objections by stipulation.

      . Section 909 limits the recovery of punitive damages against a principal to those cases in which: “(a) the principal or a managerial agent authorized the doing and the manner of the act, or (b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the principal or a managerial agent of the principal ratified or approved the act.”


author: WETTICK, J.,

text:
    Wilk v. Ravin

      C.P. of Allegheny County,
    no. AR99-5550.

      Paul A. Manion, for plaintiff.

      Cheryl L. Cindrich, for defendant.
    June 1, 2000
   WETTICK, J.,

The issue that this opinion addresses is whether the waiver provisions of Pa.R.C.P. 1032 bar a party that has filed preliminary objections or an answer to the plaintiff’s complaint, which does not include the defense of an agreement to arbitrate, from later filing a petition to compel statutory or common-law arbitration. The issue arises because a 1991 amendment to Pa.R.C.P. 1028 added an agreement for alternative dispute resolution as a ground for which a preliminary objection may be filed. The parties did not cite and our office is not aware of any case law that has directly addressed this issue.

On September 10, 1999, plaintiff filed a complaint to recover money allegedly due for work plaintiff performed as a subcontractor for defendant. On October 6, 1999, defendant filed an answer and new matter which addressed the merits of plaintiff’s complaint.

The subject of this opinion and order of court is a “petition to dismiss for lack of subject matter jurisdiction” which defendant filed on December 8, 1999. The petition avers that this lawsuit is based on a contract which contains an arbitration clause.

Both parties recognize that an arbitration clause does not deprive this court of subject matter jurisdiction. See Wechsler v. Newman, 256 Pa. Super. 81, 86, 389 A.2d 611, 614 (1978). Thus, I am treating the petition to dismiss as a petition to compel arbitration filed pursuant to 42 Pa.C.S. §7304(a), which provides that a court shall order the parties to proceed to arbitration on application to a court to compel arbitration made by a party showing an agreement to arbitrate.

Plaintiff contends that defendant’s petition to compel arbitration must be dismissed because it was not filed until after defendant had filed pleadings that addressed the merits of plaintiff’s complaint. Defendant contends that the petition to compel arbitration must be granted unless plaintiff can establish that it was prejudiced by the late filing. See generally, St. Clair Area School District Board of Education v. E.I. Associates, 733 A.2d 677, 682 n.6 (Pa. Commw. 1999); Goral v. Fox Ridge Inc., 453 Pa. Super. 316, 323-24, 683 A.2d 931, 934 (1996).

Prior to 1992, a party could enforce an arbitration agreement only by filing a petition to compel arbitration pursuant to the legislation governing common-law and statutory arbitration. See 42 Pa.C.S. §§7304, 7342(a). Since this procedure was outside the scope of the Rules of Civil Procedure and since the legislation did not set forth a time period for the filing of a petition to compel arbitration, courts utilized a prejudice standard.

Through amendments to the Rules of Civil Procedure governing preliminary objections, effective January 1, 1992, an agreement for an alternative dispute resolution may now also be raised by preliminary objection. Pa.R.C.P. 1028(a)(6). With certain exceptions not relevant here, any defense that can be raised by preliminary objection is waived if not raised. See Pa.R.C.P. 1032(a), which provides that a party “waives all defenses and objections which are not presented either by preliminary objection, answer or reply.” Thus, rights under an agreement to arbitrate are waived if not asserted prior to the filing of an answer to the complaint.

A reading of Rule 1028(a)(6) and Rule 1032(a) in this fashion is not inconsistent with the note to Rule 1028(6) which reads as follows:

“An agreement to arbitrate may be asserted by preliminary objection or by petition to compel arbitration pursuant to the Uniform Arbitration Act, 42 Pa.C.S. §7304, or the common law, 42 Pa.C.S. §7342(a).”

A party to an agreement that includes an arbitration clause should not have to raise in judicial proceedings any objections or defenses to a lawsuit. Since all preliminary objections must be raised at one time (Rule 1028(b)), a requirement that an arbitration clause be raised only through preliminary objections would be inconsistent with this principle that a party to an agreement to arbitrate should not be required to participate in court proceedings for any purpose other than to obtain a court order enforcing the arbitration clause. Consequently, Rule 1028(a)(6) did not abolish the option of asserting an agreement for alternative dispute resolution through section 7304(a) or section 7342(a), because the availability of this statutory procedure permits the defendant to request the court to address a request to compel arbitration without the necessity of raising other objections to the complaint enumerated in Rule 1028, or filing an answer and new matter which addresses the merits of the plaintiff’s complaint. If a defendant does not choose to use this statutory option but, instead, chooses to file preliminary objections or an answer and new matter that does not refer to an arbitration agreement, there is no reason why the waiver provisions of Rule 1032 should not apply.

The purpose of the provision of Rule 1032, which provides for the waiver of all defenses and objections that may be presented through preliminary objection, is to prohibit objections or defenses that are peripheral to the merits of the claim from being raised at a later time. A preliminary objection based on an agreement for alternative dispute resolution is analogous to one based on a lack of jurisdiction over the person because both grounds involve objections to the consideration of the merits of the complaint by the court in which the lawsuit was filed. The defendant who chooses to file an answer and new matter which addresses the merits of the complaint cannot later request the court to refrain from considering the merits of the complaint on the ground of lack of jurisdiction over the person. See Yentzer v. Taylor Wine Company Inc., 409 Pa. 338, 342, 186 A.2d 396, 398 (1962), where the court ruled that Rule 1032 provides for a waiver of objections to jurisdiction over the person if the lack of jurisdiction is not raised through an initial preliminary objection to the complaint because:

“The salutary and main purpose of the rules is to reduce the number of dilatory steps (so prevalent and perfectly proper under prior existing rules of procedure), which the defendant may now take advantage of prior to filing an answer on the merits of the action and thus expedite the reasonable disposition of the litigation.”

For these reasons, I enter an order of court denying defendant’s request that I compel arbitration.

ORDER

On June 1, 2000, it is hereby ordered that defendant’s request that I compel arbitration and stay these proceedings is denied. Compulsory arbitration hearing will be held on September 20,2000 at 9 a.m. in room 523 of the courthouse.

      . An arbitration clause is not an affirmative defense because it does not relate to the merits of a plaintiff’s claim. Pa.R.C.P. 1030’s reference to “arbitration and award” covers the situation in which the defendant claims that the complaint should be dismissed because of a statutory or common-law arbitration award addressing the same subject matter. Teodori v. Penn Hills School District Authority, 413 Pa. 127, 134, 196 A.2d 306, 310 (1964); but see Samuel J. Marranea

        General Contracting Co. Inc. v. Amerimar Cherry Hill Associates Limited Partnership, 416 Pa. Super. 45, 49-50, 610 A.2d 499, 501 (1992).

      . Prejudice has never been a standard where Rules of Civil Procedure provide for a waiver if matters are not timely raised. See e.g., Jones v. Van Norman, 513 Pa. 572, 584, 522 A.2d 503, 509 (1987) (“considerations of prejudice to the other side play no part in enforcing a waiver of a jury trial where the provisions of Rule 1007.1(a) have not been met”).


author: BLACK, J.,

text:
    Scott v. DeFeo
    C.P. of Lehigh County,
    no. 96-C-2972V.

      Robert G. Bauer, for plaintiff.

      Tara Figore Reid, for defendant DeFeo.

      Elizabeth T. Allison, for defendant Werner.

      June 16, 2000
   BLACK, J.,

Before the court are defendants’ motions to preclude plaintiff from offering expert testimony of Raymond A. Fritz D.P.M., a treating physician, in this medical malpractice action. During discovery, plaintiff identified Dr. Fritz as a subsequent treating physician of plaintiff, but did not identify him as an expert witness in response to expert interrogatories. Nor did plaintiff submit an expert report from Dr. Fritz, and the deadline for such reports to have been submitted expired on March 1, 1998. Nevertheless, defendants did obtain through discovery a full copy of Dr. Fritz’s treatment records.

On March 15, 2000, plaintiff took the videotape trial deposition of Dr. Fritz. During this deposition, plaintiff elicited from Dr. Fritz certain opinions that were objected to by defendants’ counsel. Defendants seek to exclude those opinions from Dr. Fritz’s deposition testimony on the ground that they violate Pennsylvania Rule of Civil Procedure 4003.5, which provides in pertinent part as follows:

“(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
“(1) A party may through interrogatories require
“(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
“(b) the other party to have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogate-ries may file as his or her answer a report of the expert or have the interrogatories answered by the expert. The answer or separate report shall be signed by the expert....
“(c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rale, the direct testimony of the expert at the trial may not be inconsistent with or go beyond the fair scope of his or her testimony in the discovery proceedings as set forth in the deposition, answer to an interrogatory, separate report, or supplement thereto. However, the expert shall not be prevented from testifying as to facts or opinions on matters on which the expert has not been interrogated in the discovery proceedings.”

The purpose of Rule 4003.5 is to allow for certain limited discovery of facts known and opinions held by expert witnesses to the extent that these facts and opinions were acquired or developed in anticipation of litigation or for trial. Previously, discovery of such facts and opinions in advance of trial was prohibited. Rule 4003.5 does not apply to discovery of facts known or opinions held by a witness, whether or not an expert, if those facts or opinions were acquired or developed independently of the litigation and not for trial. Experts who know of facts or hold opinions not acquired or developed in anticipation of litigation or for trial are subject to discovery like any other witnesses under the general discovery rales. Rule 4003.5 is modeled after Federal Rule of Civil Procedure 26(b)(4), which also distinguishes between facts and opinions acquired or developed by an expert in anticipation of litigation or for trial and facts and opinions acquired or developed otherwise.

In a personal injury case, a treating physician of the plaintiff can possess facts and opinions that fall into both categories. The treating physician may know of facts or hold opinions independently of the litigation, and he may also have acquired or developed facts and opinions for trial purposes. For example, the treating physician will certainly have information about the treatment he rendered, whether it was reasonable and necessary as a result of the plaintiff’s condition, and whether the charges for these services were reasonable. Such matters are all within the scope of providing medical care to the patient. Discovery of such matters proceeds under the general discovery rules, rather than Rule 4003.5.

On the other hand, the treating physician may be asked to opine on the quality of care given the patient by a prior healthcare provider. An opinion by a treating physician that the treatment rendered by a prior healthcare provider did not conform to the appropriate standard of care would be an opinion in anticipation of litigation or for trial. It is outside the scope of providing medical care to the patient. Thus, if a treating physician were to be employed as an expert witness on the standard of care, Rule 4003.5 would apply. In response to expert interrogatories, the expert would have to be identified and the information required by Rule 4003.5(1)(b) would have to be provided.

As we read Rule 4003.5, the phrase “acquired or developed in anticipation of litigation or for trial” applies not to the expert, but to the facts known or opinions held by that individual. This is apparent from the phraseology of the rule. The words “acquired” and “developed” make the most sense as modifiers of “facts” and “opinions.” Thus, Rule 4003.5 may apply to discovery from a treating physician, even if consulted long before any thought of litigation, where the treating physician acquires information or develops opinions in anticipation of litigation or for trial. An opinion on the standard of care of a prior healthcare provider would be such an opinion, for which discovery would be limited to the procedures provided in Rule 4003.5. However, information obtained and opinions developed within the normal scope of providing medical care to a patient fall outside Rule 4003.5 and are subject to the general discovery rules.

A similar distinction was recognized by the Pennsylvania Supreme Court in a case involving a county coroner. Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 488, 664 A.2d 525, 532 (1995). The court found that the coroner’s opinions regarding the cause of death were expert opinions, but that these opinions were not developed with an eye toward litigation. Therefore, the court held that Rule 4003.5 was inapplicable and could not be the basis for a discovery sanction.

In the instant case, defendants’ motions do not specify what portion of Dr. Fritz’s deposition testimony they seek to preclude. At oral argument, defense counsel identified two questions. On page 44 of his deposition, Dr. Fritz was asked by plaintiff’s counsel:

“Could you take a look at your note of October 30, 1995, and tell us what — tell the jurors please at that time what was your consideration of the cause of Mr. Scott’s pain at that time?”

Over defendants’ objection Dr. Fritz testified:

“My impression as stated in my note was contracted digital deformity, metatarsalgia, possible neuroma.” (emphasis added)

The second question identified at oral argument was at pages 69 and 70 of Dr. Fritz’s deposition, where plaintiff’s counsel asked:

“Dr. Fritz, my question was whether if there was that regeneration of bone that becomes prominent, as mentioned in your note, if that happens does that require treatment or intervention by you, and if so, what would that be?” (emphasis added)

Dr. Fritz responded:

“I think the point of that note was if there is any concern about a prominent area, you know, you wouldn’t be entertaining surgery but additional padding, if needed, to the orthotic device.
“It’s hard to forecast who’s going to regenerate bone and who’s going to have a future problem. I mean I don’t think anybody can predict future problems with any certainty.”

Thus, defendants’ objections are to Dr. Fritz’s opinions, contained in his treatment notes, as to the cause of the plaintiff’s pain and as to the prognosis. We believe these are matters that are well within the scope of a treating physician’s medical care, rather than opinions acquired or developed in anticipation of litigation or for trial. In order to treat a patient, a physician must generally arrive at some opinion as to the cause of the patient’s condition. Also, the prognosis or possibility of future problems is also an important consideration in determining the medical care to be provided by a treating physician. Significantly, Dr. Fritz recorded his opinions on these matters in his treatment notes. Therefore, as to these opinions, we believe that Dr. Fritz as the treating physician is in the same category as any fact witness. Since the opinions expressed by him were not obtained in anticipation of litigation or for trial, the general discovery rules govern, and Rule 4003.5 is not applicable.

In summary, the issue is not whether Dr. Fritz was employed in anticipation of litigation or for trial, but whether the opinions elicited from him in his deposition were acquired or developed in anticipation of litigation or for trial. Since Dr. Fritz was not asked any questions about the standard of care, and the only opinions objected to related to his diagnosis of plaintiff’s condition and the prognosis for plaintiff’s recovery, both of which are well within the scope of medical care he provided as the treating physician, his testimony does not violate Rule 4003.5.

Furthermore, even if Rule 4003.5 were applicable, we would not preclude the deposition testimony of Dr. Fritz. In determining whether to preclude testimony for violation of Rule 4003.5, we are to consider the following factors: (1) the prejudice to or surprise in fact of the party seeking sanctions; (2) the ability of that party to cure any such prejudice; (3) the extent to which a failure to enforce the rule would disrupt the orderly and efficient trial of the case or other cases before the court; and (4) whether there was bad faith or a willful failure to comply with the rule. Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 488 n.5, 664 A.2d 535, 532 n.5; Feingold v. SEPTA, 512 Pa. 567, 574, 517 A.2d 1270, 1273 (1986).

In this case, defendants have not been prejudiced in any way by plaintiff’s failure to identify Dr. Fritz as an expert witness or to provide an expert report from him. Dr. Fritz was clearly identified as a witness to be called by plaintiff at trial, and full copies of his treatment records were provided to defendants. These treatment records included the very opinions to which defendants are now objecting. At his deposition the questions directed to Dr. Fritz by plaintiff’s counsel were simply to elicit from him the very same information and opinions set forth in his treatment records. Therefore, defendants could not have been surprised by the substance of his opinions. Nor has plaintiff exhibited any bad faith.

We also note that the trial has been rescheduled, at the request of defendant William T. DeFeo Jr. D.P.M., to September 25,2000, some six months after the trial deposition of March 15, 2000. Thus, defendants have more than enough time to arrange for rebuttal testimony at trial, should they wish to do so; and the orderly and efficient trial of the case is not affected. In these circumstances, there is no basis to preclude plaintiff from offering the testimony of Dr. Fritz at trial.

ORDER

Now, June 16,2000, upon consideration of defendants’ motion to preclude plaintiff from offering the expert testimony of Raymond A. Fritz D.P.M., during trial, after review of the parties’ briefs and oral argument, and for the reasons set forth in the accompanying memorandum opinion, it is ordered that said motion be and hereby is denied.

      . Defendants’ counsel also referred to a third question, in which Dr. Fritz was merely asked whether his opinions had been expressed to a reasonable degree of podiatric certainty. This is simply a subsidiary question to the others. See videotape deposition of Raymond A. Fritz D.P.M., 3/15/00, defendant Michael S. Werner’s motion to preclude plaintiff from offering the expert testimony of Raymond A. Fritz D.P.M., exhibit “A,” at 71.

      . Id. at 44.

      . Id. at 45.

      . Id. at 69-70

      . Id. at 70.