author: THOMSON JR., P.J.,

text:
    PPL Holtwood LLC v. Tax Claim Bureau of Pike County

      C.P. of Pike County,
    no. 68-2002-Civil.

      Malcolm J. Gross and Michael A. Henry, for appellant.

      Jan Iokuta, for appellee.
    January 31, 2002
   THOMSON JR., P.J.,

This matter arises out of the exceptions to a tax claim filed by appellant, PPL Holtwood LLC. The issue is whether the court should grant PPL’s petition for appeal when the exceptions were received by the appellee, the Tax Claim Bureau of Pike County after the statutory date by which the tax claim becomes absolute.

1. FACTS

Because there are many matters pending before this court with regard to various appeals by PPL from its tax assessments, the court feels it necessary to detail the facts of this particular case to avoid confusion in future matters.

Sometime between May and June 2001, the tax claim bureau sent PPL a notice of return and claim pursuant to 72 P.S. 5860.308. The notice was to address the nonpayment of taxes on 4,673.43 acres of land located in Palmyra Township and on certain improvements such as dam buildings, a warehouse, an office, and a flume line. The total amount due as of May 2001 was $2,845,896.60.

In addition to the statutorily required “Warning” of consequences for failure to pay the claim or failure to take legal action to challenge the claim, the tax claim bureau placed the following language in the notice:

“Notice is hereby given that the property described has been returned to the Tax Claim Bureau of Pike County for non-payment of taxes and a claim has been entered under the provisions of Act no. 54 of 1947. If payment of these taxes is not made to the tax claim bureau before December 31 of this year, orno exceptions filed, the claim will become absolute. A one-year period for discharge of tax claim will commence or has commenced to run on July 1 of this year. If the claim is not paid in full before the end of this one-year period, the property will be advertised for and exposed to sale pursuant to the provisions of the act as amended and there shall be no redemption after the actual sale.” (emphasis added)

PPL claims to have “filed” exceptions to the claim in a timely fashion. The exceptions were deposited with Federal Express for mailing on December 29,2001. Federal Express attempted to make delivery on December 31, 2001. The tax claim bureau was closed on that date pursuant to the Pike County 2001 schedule of holiday closing which was adopted on December 27, 2000 by the commissioners of Pike County. Thus, with the tax claim bureau having been closed on Monday, December 31,2001 (New Year’s Eve) and Tuesday, January 1,2002 (New Year’s Day), the exceptions were delivered to the tax claim bureau on Wednesday, January 2,2002, at 11:43 a.m.

By letter dated January 3, 2002, the tax claim bureau issued a letter stating no action would be taken on the exceptions as the exceptions were not timely filed and the claim had become absolute. PPL, through its petition for appeal, now requests this court to declare the exceptions were timely filed and remand the exceptions to the tax claim bureau for a hearing pursuant to section 314 of the Real Estate Tax Sale Law.

2. ISSUES PRESENTED

In addition to PPL’s argument that its exceptions were timely filed, PPL also suggests that if the letter dated January 3, 2002, from the tax claim bureau constitutes an actual or deemed denial of the exceptions, the denial is unjustified as no hearing was held. However, the very case cited by PPL as support for its having a statutory due process right to a hearing also specifies that refusal to hold a hearing does not constitute a decision on exceptions. See Montgomery County Tax Claim Bureau Appeal, 204 Pa. Super. 409, 205 A.2d 104 (1964) Thus, any further discussion of the letter as an actual or deemed denial is unwarranted and will only burden the statutory interpretation to be applied to the specific issue at hand: whether the exceptions were timely filed, or the claim is absolute?

In the same manner and for the same purpose, the court will eliminate from its further consideration two arguments made by the tax claim bureau. First, the tax claim bureau directed the court’s attention to section 314(e) of the Real Estate Tax Sale Act which states that, “no taxpayer shall have the right to proceed by petition to the court of common pleas to open a claim absolute under the provisions of this Act, except on the ground of payment of the tax involved or failure to receive notice.”

There is no dispute as to the notice having been received by PPL or taxes having not been paid by PPL. However, the very crux of the dispute before the court is not whether the merits of the claim warrant opening of the claim after it has become absolute, but rather whether the claim is in fact absolute.

A second argument of the tax claim bureau is that even if the exceptions were timely filed, PPL is not entitled to a hearing before the tax claim bureau because the exceptions would “involve a question which could have been raised by an appeal provided by law” and that the exceptions are in fact on appeal as provided by law in the Pike County Court of Common Pleas, docket number 1151-Civil-1999. The reason the court refrains from specifically addressing this argument is that the issue of whether the exceptions constitute a duplicative appeal of the same issues already before the court is an issue that would have to be addressed if the exceptions are remanded to the bureau. Again, only the timeliness and not the merit of the exceptions are presently at issue in this case docketed to 68-Civil-2002.

3. ANALYSIS

Thus, the argument now having been limited to whether the exceptions were timely filed, the court must consider PPL’s claim that the December 31 closure of the tax claim bureau should not operate to shut PPL out of a last-minute attempt to avoid the claim becoming absolute. The tax claim bureau argues in response that Monday, December 31,2001, was in fact a legal holiday and supports that argument with an explanation of the adoption of holidays as duly authorized by the Pike County commissioners. The tax claim bureau also argues that the notice clearly stated that payment or filing of exceptions were to be “before December 31, 2001.”

Each notice required by section 308 of the Real Estate Tax Sale Law is to state that a claim shall become absolute if payment or filing of exceptions is not made “on or before the thirty-first day of December ....” (emphasis added) Arguably, the exceptions would have been properly filed as per the language of the statute, had the tax claim bureau been open on December 31, 2001.

Thus, the question for the court to decide is the nature and effect of the tax claim bureau having been closed on December 31,2001. PPL cites Commonwealth v. Koeck, 360 Pa. Super. 200, 520 A.2d 53 (1987), to stand for the proposition that when a county agency is closed for a local, non-legal holiday on the last day for filing, then filing on the next day the office reopens is considered timely.

In Koeck, the Superior Court reversed the lower court’s granting of the Commonwealth’s motion to dismiss an appeal from a summary speeding conviction. In that case, on the thirtieth (and last) day for the defendant to file an appeal, the prothonotary’s office was closed for one-half of the thirtieth day. The Superior Court found an appeal filed on the thirty-first day was therefore timely.

The tax claim bureau argues that the Koeck case is inapplicable because it construes Pennsylvania Rules of Criminal Procedure and makes reference to Pennsylvania Rules of Civil Procedure, neither of which control the operation of the tax claim bureau. The court agrees that these rules may not “control” the tax claim bureau and its operations. Certainly the court claims no authority to issue a rule as to what days the tax claim bureau should be open. However, the legal consequences of the tax claim bureau’s actions pursuant to an interpretation of a statute at issue in a civil case before a court of common pleas are most certainly bound by these rules.

Even if the court were to completely disregard the Rules of Civil Procedure, this court has reviewed the Koeck case in depth and has determined that the Superior Court’s analysis had a much broader scope. The Superior Court’s analysis begins with the Rules of Construction concerning computation of time, which are identical to Rule 106 of the Pennsylvania Rules of Civil Procedure. However, they apply specifically to all statutes. 1 Pa.C.S. §1908 reads in part as follows:

“When any period of time is referred to in any statute, such period in all cases . . . shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.” (emphasis added)

The statutory language plainly states that a legal holiday is a day so declared by the laws of the Commonwealth or of the United States. In the Koeck case, a local holiday declared by the court, while certainly duly authorized, was not a “legal” holiday for the purposes of statutory construction. This court is bound to the same analysis. Thus, although duly authorized and proper as a local holiday for the limited purposes in our present discussion, it is not a “legal” holiday unless the state or federal legislature has so stated.

This court need not investigate whether New Year’s Eve was in fact a legal holiday as either analysis leads us to the same result — that being filing is permissible on the next open day. Had New Year’s Eve not been a legal holiday, we must follow the case law from the Superior Court. In absence of any authority to the contrary having been presented, it appears that the Superior Court would find similar to its finding in Koeck, that “a locally mandated non-legal holiday” is not a “proper legal holiday” and “must be treated as a break down in operation.” Had New Year’s Eve been a legal holiday, we would simply follow the statute for computation of time, and permit filing on the next non-holiday day to follow.

Although the days the tax claim bureau may be closed are not determined by the procedure of this court, as we previously stated, the interpretation of the legal consequences of a closure on a day specified by statute is entirely within this court’s jurisdiction, The tax claim bureau was closed on a day which is specified by statute as the very last day for filing exceptions. Thus, PPL is entitled to file its exceptions even on that last day. The statutes and case law both direct us that filing on the next open day (following legal or local holiday) is permissible. Thus, the court must determine the exceptions were timely filed.

This court is not sympathetic to the risk PPL took by waiting until the literal last day to file its exceptions, particularly with the lengthy period of time with which it had to act after the notice and the extent of legal counsel at its disclosure. However, the statute holds no more entitlement for the filing of exceptions on October 31 than for the filing of exceptions on December 31. Thus, our consideration of PPL’s reasons for such procrastination are not relevant to our consideration of their entitlement to be able to file exceptions on the last possible day. However, due to the multitude of docketed cases between the same parties that have yet to be resolved, it is necessary to stress to all parties involved that all good faith efforts should be made to avoid any situations which lead merely to games of procedural chess than a proper resolution based on the merits.

ORDER

Accordingly, January 31,2002, upon consideration of the appellant, PPL Holtwood LLC’s petition for appeal, and appellee, the Tax Claim Bureau of Pike County’s answer to petition for appeal with new matter, and argument held thereon, the petition for appeal is granted. The exceptions are ordered timely filed and are remanded to the Tax Claim Bureau of Pike County.


source: Caselaw Access Project

author: REILLY, P.J.,

license: Public Domain

text:
    Lux v. Gerald E. Ort Trucking Inc.

      C.P. of Clearfield County,
    no. 01-466-C.D.

      Jeffrey R. Owen, for plaintiff.

      Robert A. Seiferth, for defendants.
    January 4, 2002
   REILLY, P.J.,

In the early morning hours of October 24, 2000, two collisions occurred on Interstate 80 between DuBois and Clearfield, Pennsylvania. Both collisions were caused in whole or in part by the fact that a driver of a tractor-trailer truck was asleep at the wheel.

In the first accident, a tractor-trailer operated by defendant Jamie Harvey Parker was rear-ended by a tractor-trailer driven by defendant Eddie C. Roberts. The second accident occurred when a truck driven by defendant Samuel Thomas Knight collided with a rescue squad truck positioned on the highway with its warning lights flashing and an illumination boom brightly lighting the scene of the cleanup of the first accident. During the second collision, three volunteer firemen who were passengers in the rescue squad truck were severely injured, including the plaintiff, James U. Lux, who was permanently paralyzed from the waist down.

Defendant Parker filed preliminary objections to plaintiff’s complaint, which this court granted by its opinion and order dated October 1, 2001, in which the court found that plaintiff’s allegations against defendant Parker with respect to the first accident were insufficient to maintain an action of negligence against defendant Parker. Plaintiff filed a motion requesting that this court reconsider said order. Defendants Gerald E. Ort Trucking Inc., Ort Trucking Inc. and Samuel Thomas Knight subsequently joined in plaintiff’s motion to reconsider. Upon a review of the motions and briefs filed by the parties hereto, the court finds that its order granting defendant Parker’s preliminary objections in the nature of a demurrer was appropriate.

Plaintiff argues in support of its motion to reconsider that the court did not address the fact that driving too slowly is prohibited by law pursuant to 75 Pa.C.S. §3364(a). Plaintiff states that such negligent operation of a vehicle (a) at a “dangerously slow speed,” while (b) “failing to display and utilize proper safety warning apparatus on his vehicle,” created “the foreseeable risk of being struck from behind.” Accordingly, plaintiff alleges that the determination of the effect of this negligent conduct should be left to the jury.

Pennsylvania law provides that the breach of a statutory duty does not in and of itself establish a cause of action in negligence, absent proof of causation and injury. Vernon v. Stash, 376 Pa. Super. 36, 46, 532 A.2d 441, 446 (1987). To establish causation, the plaintiff must prove that the breach was “both the proximate and actual cause of the injury.” Reilly v. Tiergarten Inc., 430 Pa. Super. 10, 15, 633 A.2d 208, 210 (1993), citing McDonald v. Marriott Corp., 388 Pa. Super. 121, 125, 564 A.2d 1296, 1298 (1989). Proximate cause is a question of law to be determined by the court before the issue of actual cause may be put to the jury. Id.

Pennsylvania courts look to section 431 of the Restatement (Second) of Torts which sets forth the standard for proximate cause as follows: “The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm ....” Taylor v. Jackson, 164 Pa. Commw. 482, 491, 643 A.2d 771,775 (1994), quoting Restatement (Second) of Torts §431(1965). Section 433 of the Restatement sets forth the following considerations to be taken into account in determining whether an actor’s conduct is a substantial factor in bringing about harm to another:

“(a) The number of other factors which contribute in producing the harm and the extent of the effect, which they have in producing it;
“(b) Whether the actor’s conduct has created a force or series of forces, which are in continuous and active operation up to the time of the harm, or has created
“(c) a situation harmless unless acted upon by other forces for which the actor is not responsible; and
“(d) Lapse of time.”

The court finds that while defendant Parker’s operation of the vehicle may have breached a statutory duty, it was not a “substantial factor” in causing harm to the plaintiff. In and of itself, defendant Parker’s operation of his vehicle at a slow speed and without flashers was harmless, but for the negligence of defendant Roberts in colliding with defendant Parker’s vehicle. Accordingly, this court affirms its determination that defendant Parker’s alleged negligence was not a substantial factor in causing plaintiff’s injuries and finds that plaintiff’s allegations of negligence are not sufficient to maintain a cause of action against defendant Parker with respect to the first accident.

Next, plaintiff argues that the court did not deal with the allegations against defendant Parker relating to his fleeing the scene of the accident following the collision, which “constitute additional and independent grounds for liability based upon his intentional or negligent conduct.” Plaintiff asserts that in fleeing the scene, that defendant Parker “spread the debris field across a greater area” which caused “the foreseeable consequence of requiring emergency response personnel to be at the accident site for a greater period of time . . . and to be required to secure an area greater than would have been necessary had defendant Parker remained at the scene, thus placing the plaintiff in the zone of danger created by the activities of defendant Parker at the time of the second collision.” Citing the case Taylor v. Jackson, 164 Pa. Commw. 482, 643 A.2d 771 (1994), plaintiff states that diverting the services of safety personnel has been recognized as a potential substantial factor to be examined by the trier of fact. In Taylor, the plaintiffs alleged that a second collision at a multiple accident scene resulted in the diversion of police officers to that scene, preventing such officers from responding to other aspects of the accident, and thus causing the third accident. The defendant driver in the second collision had rear-ended another car causing such collision. The Commonwealth Court overruled the trial court’s finding that the second driver’s conduct was not a substantial factor in causing the third accident, and reversed its entry of summary judgment. The Commonwealth Court found that “[ajlthough attenuated, we believe that this argument under the particular facts of the instant matter creates a jury question.” Id. at 494, 643 A.2d at 776.

Unlike the court in Taylor, this court finds that the particular facts of this case do not create a jury question. In contrast to Taylor, defendant Parker did not cause the initial collision. Rather it was the negligent conduct of defendant Roberts, in falling asleep at the wheel, which caused the collision that diverted the emergency personnel in this case. Again, this court finds that defendant Parker’s alleged breach of a statutory duty was not a substantial factor in bringing emergency personnel to the scene and exposing them to harm. Accordingly, the court affirms its determination that plaintiff’s claim as to negligence on the part of defendant Parker is legally insufficient, and that defendant Parker’s preliminary objections should be granted. Accordingly, the motion to reconsider as filed by plaintiff, and as joined in by defendants Gerald E. Ort Trucking Inc., Ort Trucking Inc. and Samuel Thomas Knight, is hereby dismissed.

Wherefore, this court enters the following:

ORDER

Now, January 4, 2002, it is the order of this court that plaintiff’s motion to reconsider, as joined in by defendants Gerald E. Ort Trucking Inc., Ort Trucking Inc. and Samuel Thomas Knight, is hereby dismissed.

      . Impeding movement of traffic prohibited/ — Except when reduced speed is necessary for safe operation or in compliance with law, no person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic. 75 Pa.C.S. §3364(a) (Purdon 2001).


author: GARDNER, RJ.,

text:
    McAuliffe-Funk v. Coordinated Health Systems

      C.P. of Lehigh County,
    no. 2000-C-2148.

      John R. Vivian Jr., for plaintiff.

      Nancy Conrad, for defendant.
    December 27, 2001
   GARDNER, RJ.,

This matter is before the court on defendant’s preliminary objections to plaintiff’s complaint and motion for attorney’s fees filed September 12,2000. Plaintiff’s reply to defendant’s preliminary objections to plaintiff’s complaint and motion for attorney’s fees was filed October 2, 2000. On April 24, 2001, the undersigned conducted a status telephone conference at which counsel for plaintiff withdrew plaintiff’s demand for a jury trial and plaintiff’s claims for punitive damages and disparate treatment gender discrimination. Subsequently, the undersigned entered an order dated April 24, 2001, and filed May 22, 2001, disposing of plaintiff’s claims.

In our April 24, 2001 order, we struck the June 13, 2001 oral argument scheduled for this matter and considered the matter on the basis of the memoranda of law submitted by the parties. For the reasons expressed below, we sustain defendant’s preliminary objections in part and overrule them in part.

Initially, defendant propounded five preliminary objections as follows: (1) a demurrer and or motion to strike plaintiff’s claim for jury trial; (2) a demurrer and motion to strike plaintiff’s claim for punitive damages; (3) a demurrer to plaintiff’s disparate treatment gender discrimination claim; (4) a demurrer to plaintiff’s constructive discharge claim; and (5) a motion for attorney’s fees. As stated above, plaintiff withdrew her claims numbered (1), (2) and (3). Accordingly, the remaining preliminary objections are the demurrer to plaintiff’s constructive discharge claim and defendant’s motion for attorney’s fees.

Initially, we will address defendant’s demurrer to plaintiff’s claim for constructive discharge. Plaintiff brings her claim for constructive discharge pursuant to the Pennsylvania Human Relations Act. In her complaint, plaintiff contends that she was employed by defendant as an administrative assistant at defendant Coordinated Health Systems from April 23, 1997, through March 5, 1998. Plaintiff alleges that in the summer of 1997, Keith Roberts was employed by defendant as a physical therapy assistant. Shortly after commencing employment, Mr. Roberts allegedly started making statements to plaintiff that he was going though a bitter divorce and was very attracted to her.

Plaintiff further contends that Mr. Roberts often commented to co-employees concerning her physical attributes. Mr. Roberts allegedly stated that he thought plaintiff was “hot” and “had a killer body.” Plaintiff asserts that Mr. Roberts leered at her while she exercised on the physical therapy equipment and inappropriately touched her by placing his hands on her neck and shoulders. Plaintiff contends that she repeatedly informed Mr. Roberts of her objection to being touched.

In addition, plaintiff asserts that Mr. Roberts made obscene comments and gestures to her privately and in the presence of co-workers. These included grabbing his private parts in front of plaintiff, running his tongue over his lips and whispering inappropriate comments into plaintiff’s ear.

In response to Mr. Roberts alleged inappropriate actions, plaintiff informed him on numerous occasions that she objected to his sexual advances, gestures and touching. In addition, plaintiff contends that the alleged harassing behavior was known to at least four of defendant’s supervisory and management employees. She avers that at least two of them spoke to Mr. Roberts about his behavior. Moreover, one of the supervisory staff eventually reprimanded Mr. Roberts.

Plaintiff asserts that after Mr. Roberts was reprimanded, he continued his inappropriate behavior, but did so in a much more angry and aggressive manner. She contends that he attempted to exact retribution from plaintiff for causing the reprimand.

Following the reprimand, Mr. Roberts allegedly told plaintiff in front of the supervisor who reprimanded him, “You just wait. I’m gonna make your job ten times— count’em — ten times harder.” Plaintiff contends that the supervisor took no action after hearing this statement. Plaintiff states that Mr. Roberts then began to make unfounded complaints about her to the supervisory staff about her job performance and told other co-workers that he was trying to get plaintiff fired.

Plaintiff alleges that on March 6, 1998, as a result of an appointment she requested with the administrator and chief executive of defendant corporation, Jane Dilorio, she submitted her letter of resignation. Plaintiff contends that after she submitted her resignation, Miss Dilorio asked “is this due to Keith Roberts?”

In Kroen v. Bedway Security Agency Inc., 430 Pa. Super. 83, 94, 633 A.2d 628, 633 (1993), the Superior Court of Pennsylvania first recognized a cause of action in tort for “constructive discharge” of an at-will employee upon a claim of wrongful discharge where the employer makes working conditions so intolerable that the employee is forced to resign. As stated for the United States Court of Appeals for the Third Circuit:

“[N]o finding of a specific intent on the part of the employer to bring about a discharge is required for the application of the constructive discharge doctrine. The court need merely find that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” Goss v. Exxon Office Systems Company, 747 F.2d 885, 888 (3d Cir. 1984).
“ ‘Intolerability’ is not established by showing merely that a reasonable person, confronted with the same choices as the employee, would have viewed resignation as the wisest or best decision, or even that the employee subjectively felt compelled to resign; presumably every resignation occurs because the employee believes that it is in his [or her] best interest to resign. Rather, ‘[i]ntolerability ... is assessed by the objective standard of whether a “reasonable person” in the employee’s position would have felt compelled to resign,’ — that is, whether he [or she] would have had no choice but to resign, (emphasis in original)” Connors v. Chrysler Financial Corp., 160 F.3d 971, 976 (3d Cir. 1998), citing Blistein v. St. John’s College, 74 F.3d 1459 (4th Cir. 1996).

In addition to meeting the objective standard, defendant contends that a plaintiff must usually show that she attempted to explore alternatives before deciding to resign. Clowes v. Allegheny Valley Hospital, 991 F.2d 1159, 1161 (3d Cir. 1993). Moreover, defendant contends that employees have an obligation to not assume the worst and jump to conclusions too fast. Stewart v. Weis Markets Inc., 890 F. Supp. 382 (M.D. Pa. 1995). Thus, defendant argues that part of an employee’s obligation of reasonableness is an obligation to give the employer an opportunity to correct the situation before resigning because of intolerable conditions.

Here, defendant contends that the allegations in plaintiff’s complaint fall short of the required pleading standard. Specifically, defendant asserts that plaintiff fails to allege that she was forced to resign because of intolerable discriminatory conditions. She does not allege that defendant refused to discharge Mr. Roberts, or that a reasonable person in her position would have no choice but to resign. Also, plaintiff failed to allege that she attempted to explore alternatives before deciding to resign. Hence, defendant contends that plaintiff’s claim for constructive discharge must fail.

Plaintiff contends that her complaint sets forth very specific allegations of the conduct which created the allegedly hostile work environment. Moreover, plaintiff contends that allegations of numerous complaints made to management or supervisory personnel are also set forth in the complaint. Plaintiff also asserts that the complaint sets forth allegations that defendant failed to take prompt remedial action based on her complaints.

Finally, plaintiff contends that in Clowes, supra, cited by defendant for the proposition that a plaintiff must usually explore reasonable alternatives, the Third Circuit also stated: “We do not require that such steps be taken in all cases. An employee may be able to show working conditions were so intolerable that a reasonable employee would feel forced to resign without remaining on the job for the period necessary to take those steps.” Clowes, 991 F.2d at 1162 n.6. For the following reasons, we find that plaintiff’s complaint does state a cognizable cause of action for constructive discharge.

Preliminary objections in the nature of a demurrer admit all well-pleaded allegations and material facts as averred in the complaint, as well as inferences reasonably deducible therefrom. Main Line Health Inc. v. Pennsylvania Medical Professional Liability Catastrophe Loss Fund, 738 A.2d 66 (Pa. Commw. 1999).

A preliminary objection in the nature of a demurrer should only be sustained where, as a matter of law, the facts as pleaded do not permit recovery. Kapton v. Bell Atlantic Nynex Mobile, 700 A.2d 581 (Pa. Commw. 1997). If however, there is any doubt as to whether a demurrer should be sustained, the court must overrule the preliminary objection. Wiernik v. PHH U.S. Mortgage Corp., 136 A.2d 616 (Pa. Super. 1999).

Applying this standard, we conclude that under the facts alleged, a reasonable person could believe that to solve the problem he would have to resign. Moreover, the facts alleged constitute the type of fact situation contemplated by the Third Circuit in Clowes, supra, where a plaintiff would resign rather than seek other options. Accordingly, we overrule defendant’s preliminary objection in the nature of a demurrer to plaintiff’s claim for constructive discharge.

Included in defendant’s preliminary objections is a motion for attorney’s fees and costs based on plaintiff’s allegedly frivolous demands for a jury trial and for punitive damages, which claims were disposed of by our April 24, 2001 order.

The Supreme Court of Pennsylvania has held that a plaintiff has no right to punitive damages under the PHRA. Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745 (1998). The Supreme Court has also held that a plaintiff has no right to a jury trial under the PHRA. Wertz v. Chapman Township, 559 Pa. 630, 741 A.2d 1272 (1999).

Moreover, plaintiff’s counsel was well aware of both of these cases. Plaintiff’s counsel, John R. Vivian Jr., Esquire, was counsel for the plaintiff in Hoy and was made aware of the Supreme Court decision in Wertz by a letter dated August 31, 2000, from counsel for defendant. Hence, defendant contends that it is entitled to counsel fees for bad faith conduct pursuant to 43 P.S. §962(c.3); and for obdurate, vexatious and bad faith conduct pursuant to 42 Pa.C.S. §2503(7) and (9).

Plaintiff’s counsel contends that plaintiff’s demands for a jury trial and punitive damages do not entitle defendant to an award of attorney’s fees and costs. More specifically, counsel argues that plaintiff voluntarily withdrew her claims for a jury trial and punitive damages and that an associate in the office of John R. Vivian Jr. simply made a mistake in asserting these claims. Moreover, plaintiff’s associate was employed by Attorney Vivian after the Supreme Court’s decision in Hoy v. Angelone, and therefore had no involvement in the case which decided the punitive damages issue.

Counsel further argues that while he acknowledges that a mistake was made, that does not rise to the level of obdurate, vexatious or bad faith conduct. Therefore, counsel fees and costs should not be imposed against plaintiff’s counsel under 42 Pa.C.S. §2503(7) and (9) or under 43 PS. §962(4)(c.3).

For the following reasons, we agree with plaintiff in part, and with defendant in part.

Section 962(4)(c.3) of the PHRA states:

“If, after a trial held pursuant to subsection (c), the court of common pleas finds that a defendant has not engaged in or is not engaging in any unlawful discriminatory practice as defined in this act, the court may award attorney fees and costs to the prevailing defendant if the defendant proves that the complaint was brought in bad faith.” (emphasis added)

Because this matter is before the court on defendant’s preliminary objections, and not after a trial, an award of attorney’s fees and costs is not appropriate under this statute. Accordingly, we agree with plaintiff that defendant’s motion based on section 962(4)(c.3) is inappropriate.

Next, defendant contends that it is entitled to attorney’s fees and costs pursuant to 42 Pa.C.S. §2503(7) and (9). Those sections provide:

“§2503. Right of participants to receive counsel fees
“The following participants shall be entitled to a reasonable counsel fee as part of the taxable costs of the matter: ...
“(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter. ...
“(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.”

In this case, plaintiff’s claims for a jury trial and for punitive damages were inappropriate and without legal basis. Plaintiff’s counsel voluntarily withdrew these claims in conformity with the decisions of the Supreme Court of Pennsylvania. However, counsel’s explanation for the insertion of the claims in the first instance is unpersuasive and his failure to withdraw the claims prior to the filing of the within motion is without justification.

Counsel for plaintiff contends that a former associate in his office included the punitive damage claim and demand for jury trial in the complaint. Moreover, that associate was not a member of Mr. Vivian’s firm at the time of the Supreme Court’s decision in Hoy v. Angelone. However, counsel does not provide any reason for his failure to address the situation when requested in defense counsel’s August 31,2000 letter. Moreover, Mr. Vivian’s assertion that it was the fault of this associate attorney is belied by the fact that Mr. Vivian’s own signature appears at the end of plaintiff’s complaint.

“By definition, where there is no basis in law or fact for the commencement of an action, the action is arbitrary.” Thunberg v. Strause, 545 Pa. 607, 619, 682 A.2d 295, 301 (1996). Because Mr. Vivian was counsel in the Hoy case, he had firsthand knowledge of the Supreme Court’s holding that punitive damages are not recoverable in a PHRA case. When defense counsel called the situation to the attention of plaintiff’s counsel, Mr. Vivian did not seize upon the opportunity to correct this “mistake.”

Accordingly, because it is clear that plaintiff did not have any basis in law or fact for the assertion of the claims for a jury trial or punitive damages, we grant defendant’s motion for attorney’s fees pursuant to 42 Pa.C.S. §2503(9). We direct plaintiff’s counsel, John R. Vivian Jr., Esquire, to pay defendant $200 for counsel fees incurred by defendant as a result of plaintiff’s counsel’s conduct. In addition, we deny defendant’s motion for attorney’s fees pursuant to 42 Pa.C.S. §2503(7) as moot.

ORDER

Now, December 27, 2001, upon consideration of defendant’s preliminary objections to plaintiff’s complaint and motion for attorney’s fees, which preliminary objections and motion were filed September 12, 2000; upon consideration of plaintiff’s reply to defendant’s preliminary objections to plaintiff’s complaint and motion for attorney’s fees filed October 2, 2000; upon consideration of the briefs of the parties; it appearing that on April 24, 2001, plaintiff withdrew her demand for a jury trial, and her claims for punitive damages and disparate treatment gender discrimination; and for the reasons set forth in the accompanying opinion,

It is ordered that defendant’s preliminary objection in the nature of a demurrer to plaintiff’s claim for constructive discharge is overruled.

It is further ordered that on or before January 14,2001, defendant shall file an answer to plaintiff’s complaint.

It is further ordered that defendant’s motion for attorney’s fees is granted in part, denied in part.

It is further ordered that defendant’s motion for attorney’s fees pursuant to the Act of October 27, 1955, P.L. 744, §12, as amended, 43 PS. 962(4)(c.3) is denied.

It is further ordered that defendant’s motion for attorney’s fees pursuant to 42 Pa.C.S. §2503(9) is granted.

It is further ordered that plaintiff’s counsel, Attorney John R. Vivian Jr., Esquire, shall pay defendant $200 for attorney fees.

It is further ordered that defendant’s motion for attorney’s fees pursuant to 42 Pa.C.S. §2503(7) is denied as moot.

      . See prayer for relief in defendant’s preliminary objections filed September 12, 2000.

      . Act of October 27, 1955, P.L. 744, no. 222, §1, as amended, 43 P.S. §§951-963.

      . Paragraph 5 of plaintiff’s complaint filed August 21, 2000.

      . Complaint paragraphs 6 and 7.

      . Complaint paragraphs 10 and 11.

      . Complaint paragraph 12.

      . Complaint paragraphs 13 and 14.

      . Complaint paragraphs 15-18.

      . Complaint paragraph 19.

      . Complaint paragraphs 20-22.

      . Complaint paragraphs 23-25.

      . Complaint paragraphs 26-27.

      . Complaint paragraphs 28-29.

      . Complaint paragraph 30.

      . See exhibit D attached to defendant’s memorandum of law in support of its preliminary objections to the complaint and motion for attorney’s fees.

      . See status conference order of April 24, 2001.


author: WETTICK JR., J.,

text:
    Export Boxing & Crating Inc. v. Tech Met

      C.P. of Allegheny County,
    no. GD98-11345.

      Richard F. Andracki, Paul K. Geer, Rolf Louis Patberg and Jeffrey Cohen, for plaintiffs.

      L. John Argento, for defendant SPEDD Inc.

      Anne Paul, for defendant Tech Met.
    December 4, 2001
   WETTICK JR., J.,

The subject of this opinion and order of court is plaintiffs’ motion to enforce settlement.

On the eve of trial, plaintiffs agreed to accept the settlement offer of one of two joint tort-feasors. The issue raised through this petition is whether plaintiffs may furnish pro tanto releases, rather than pro rata releases, where the parties did not discuss the type of release that would be executed.

This consolidated action arises out of a fire that started in a building within an industrial park in which a tenant stored chemicals. The fire spread to other buildings occupied by other tenants, destroying these buildings. Fire equipment of more than a dozen fire companies used in fighting the fire was destroyed through exposure to chemical releases.

Defendant SPEDD Inc. owned the industrial park, including the building where the fire started. Defendant Tech Met was the tenant that stored the chemicals in connection with its business activities as a chemical miller.

The fire departments and tenants of other buildings filed lawsuits against SPEDD for failure to install a sprinkler system and for other violations of the BOCA Code and against Tech Met for failure to properly store the chemicals. The litigation also included claims by SPEDD against Tech Met for damages to the industrial park.

On the eve of trial, the tenants and the fire companies settled with SPEDD. The settlement was placed on the record by counsel for SPEDD:

“Mr. Argento: Yes, your honor. If I may. John Argento, defense counsel for SPEDD.
“Your honor, just this morning I wish to inform the court that we’ve reached a settlement agreement with all of the plaintiff fire departments — actually all of the plaintiffs except for Tech Met as a plaintiff on their subrogation claim. That would include all the fire departments, Borough of Glassport, and all of the tenants. It’s a joint tort-feasor release agreement.
“It includes the settlement of all claims including punitive damages, and amounts for a sum certain, but the amount is confidential. Should the court like to know what the settlement is, I would obviously have no problem telling the court.” (T. 26.)

The initial communications between plaintiffs’ counsel and SPEDD’s counsel as to the type of release that should be provided began several days after the settlement was placed on the record. Eventually, plaintiffs’ counsel furnished a pro tanto release signed by each of the plaintiffs. SPEDD’s counsel refused to release the settlement funds until plaintiffs executed a pro rata release.

Through their motion to enforce a settlement, plaintiffs seek a court order compelling the release of the settlement funds. SPEDD, on the other hand, seeks a ruling that plaintiffs are not entitled to the settlement funds until plaintiffs execute a pro rata release. At oral argument on the motion, counsel for the parties stipulated that there is a binding settlement. In other words, at this time, no attorney is taking the position that I may set aside the agreement for failure to agree upon a material term.

Each of the witnesses who participated in the settlement discussions testified that no one used the terms “pro rata release” or “pro tanto release” in any of the discussions. The only factual dispute is over whether counsel for SPEDD referred to a “standard joint tort-feasor release” or only a “joint tort-feasor release” in the settlement discussions. It does not make a difference whether or not SPEDD’s counsel referred to a “standard” release. If there is not a release that is normally used where a plaintiff has settled with only one joint tort-feasor, the term “standard” is meaningless. However, if there is one type of release that is normally used, the law will presume that the parties intended for plaintiffs to execute this type of a release unless the parties explicitly agreed to use a different type of a release.

A settlement agreement is a contract governed by the general rules of contract interpretation. See Friia v. Friia, 780 A.2d 664, 668 (Pa. Super. 2001). Where the intentions of the parties cannot be gleaned from the language of the agreement, under general rules of contract interpretation a court should determine whether there are common expectations that would reveal the intentions of the parties.

In this case, this is a relatively easy task. When the parties arrived at a dollar amount that SPEDD would pay, it would have been apparent to counsel for plaintiffs that SPEDD expected a release that would eliminate SPEDD’s exposure to any further claims raised in this litigation. Obviously, plaintiffs’ counsel understood that plaintiffs would execute a release which would prevent plaintiffs from pursuing against SPEDD, in this or any other litigation, any claims that plaintiffs have raised against SPEDD in this litigation. Plaintiffs would also have understood that SPEDD expected that the payment it was making was the only money that SPEDD would be paying to plaintiffs, either directly or indirectly through payments made to a third party. Thus, plaintiffs would have understood that they could not pursue claims against any other parties to this litigation for which SPEDD would be ultimately liable.

Under a pro rata release, a plaintiff agrees to accept from the non-settling joint tort-feasor only whatever the non-settling tort-feasor’s share of the verdict turns out to be. Under a pro tanto release, the plaintiff’s recovery against the non-settling joint tort-feasors is the amount of the jury verdict less the amount of the settlement. See Baker v. ACandS, 562 Pa. 290, 293 n.1, 755 A.2d 664, 666 n.1 (2000). Thus, while the pro rata release, by reducing the liability of the other tort-feasor by the settling tort-feasor’s proportionate share of the liability, eliminates any risk of liability stemming from the non-settling tort-feasor’s contribution claim against the settling tort-feasor, the pro tanto release, by reducing the liability of the other tort-feasor only by the dollar amount paid for the release, does not eliminate the possibility of a verdict that would result in the settling tort-feasor owing money to the non-settling tort-feasor.

The following example shows the difference between a pro rata and pro tanto release:

A passenger is injured in a two-car accident. In her complaint, the passenger alleges that both drivers are solely or partially responsible for the accident. The two drivers raise cross-claims against each other in which each contends that the other is solely or jointly liable.

Prior to trial, the plaintiff settles with driver 1 for $250,000. Because of the cross-claims, driver 1 is named as a defendant on the verdict slip. A jury renders a verdict for $1 million. It finds that each driver is 50 percent liable.

If the plaintiff signed a pro rata release, the plaintiff may not recover from driver 2 more than the percent of the total verdict for which driver 2 was found to be responsible (/.<?., plaintiff may recover only $500,000 from driver 2).The cross-claim is dismissed on the basis of the release under which the plaintiff agreed to reduce her claim against driver 2 to a percentage of the total verdict for which, according to the jury verdict, driver 2 is responsible.

If, instead, the plaintiff signed a pro tanto release, the plaintiff agreed only to reduce her claim against driver 2 by the amount of the verdict less the amount of the settlement. Consequently, under the fact situation described above, the plaintiff may recover $750,000 from driver 2 and driver 2 may collect $250,000 from driver 1.

In this fact situation, the reason that driver 1 is making a $250,000 payment is to avoid the possibility of a jury verdict in which driver l’s share of the verdict exceeds $250,000. Consequently, driver 1 would never settle through a pro tanto release under which driver 1 would be required to pay to driver 2 the difference between driver l’s share of the verdict and the $250,000 payment.

The parties opposing the use of the pro rata release in the present case have not explained why SPEDD would have agreed to a release that did not protect SPEDD in the event that the jury found that SPEDD owed more than the amount of the settlement. None of the parties to the settlement would have expected SPEDD to enter into a settlement that provided almost no protection to it. See Charles v. Giant Eagle Markets, 513 Pa. 474, 480 n.3, 522 A.2d 1, 4 n.3 (1987), where the court stated:

“The heart of settlement, the avoidance of the exposure at trial, would be completely undermined if the settling defendant remained exposed until the final verdict is entered. It is little solace to a settling defendant to know that his agreement insulates him against exposure to additional claims asserted by a plaintiff, if he remains vulnerable to the claims of the remaining tort-feasors.”

Publications discussing joint tort-feasor releases also support SPEDD’s position that a pro rata release was intended. See 3 West’s Pa. Forms, Civil Procedure §67.21:

“The standard Pennsylvania joint tort-feasor release at section 67.23 will require the plaintiff to reduce his claim against B by A’s pro rata share (80 percent).” (emphasis added)

See John P. Gismondi, “Joint Tort-Feasor Releases: Is There Change in the Wind?,” Pa.L.Wkly, September 11, 2000, at 8:

“There are generally two types of joint tort-feasor releases, pro rata and pro tanto. ... Of the two types of releases, the pro rata is much more common since settling defendants almost uniformly insist on them so as not to leave SD [settling defendant] exposed for a contribution claim.”

See John P. Gismondi, “Joint Tort-Feasor Releases: Answers to Five Common Questions,” Avoiding Pitfalls in Personal Injury Cases: Liens, Subrogation & Joint Tort-Feasor Releases, 69, 82-83 (Pa.Tr.L.Assn. 1997):

“If, indeed, the plaintiff normally would prefer a pro tanto release, why do we almost never see such releases executed? The answer is simple. Because it increases the risk to SD [settling defendant], insurance companies almost invariably refuse to give a pro tanto release. Instead, they say that if the plaintiff wants settlement money, he will have to execute a traditional pro rata release. The risk to SD with a pro tanto release is that he remains exposed for the contribution claim by NSD [non-settling defendant] depending on how the verdict comes in, i.e., SD cannot have the piece of mind of being able to tell his claims adjustor (as they can do with a pro rata release) that, once having paid the plaintiff, no other money will have to be spent on the file....
“It should be apparent now why an insurance carrier for SD will almost always insist upon a pro rata release— an insurance carrier simply does not want to take the risk of having to pay a contribution claim asserted by a NSD.”

See Thomas A. Brophy, “Weighing the release in a proposed settlement,” Pa.L. Wkly, March 17,1997, at 12, 13:

“In conclusion, given the fact that the pro tanto release is so clearly favorable to the plaintiffs, the only reasonable explanation that such releases are not seen more often is that defendants refuse to enter into them, given the subsequent risk of exposure to defendants.”

I recognize that the opinion of the Pennsylvania Supreme Court in Baker v. ACandS, supra, 562 Pa. at 297, 755 A.2d at 667, contains the following dicta:

“Thus, in Pennsylvania, the UCATA contemplates three separate scenarios. First, if the settlement agreement is silent, the setoff mechanism defaults to a pro tanto setoff and the non-settling defendant is entitled to have the verdict reduced by the amount of consideration paid by the settling tort-feasor.”

This language is referring only to the amount by which the non-settling tort-feasors may have the verdict reduced as a result of a settlement agreement between the plaintiff and another joint tort-feasor. It is not referring to what shall be included in the written agreement between the plaintiff and the settling defendant. As I have discussed, this issue is governed by the intent of the parties. Once the agreement between the plaintiff and the settling tortfeasor is reduced to writing, the language which I have quoted provides for the plaintiff’s verdict against the non-settling tort-feasor to be reduced by the amount of the settlement (as opposed to a reduction of the verdict by the settling party’s allocated share of the liability) unless the written agreement provides for a pro rata setoff.

In summary, plaintiffs shall execute pro rata releases because counsel for plaintiffs would have understood that the consideration for SPEDD’s substantial payment was the execution of a release agreement which eliminated the possibility that SPEDD could be compelled to pay any additional money as the result of any jury verdict entered in this litigation.

ORDER

On December 4, 2001, upon consideration of plaintiffs’ motion to enforce settlement, reinstate verdict or re-list for trial, it is hereby ordered, adjudged, and decreed that the motion of plaintiffs is denied. Plaintiffs shall execute pro rata releases.

      . The facts have been developed through the petition and answer practice of Pa.R.C.P. 206.1 et seq.

      . A court is interpreting a contract if it supplies a missing term based on “a tacit agreement or a common tacit assumption or where a term can be supplied by logical deduction from agreed terms and circumstances.” Restatement (Second) of Contracts §204 cmt. c. In the situation in which a court cannot find an agreement as to a particular term based on principles of contractual interpretation, “a term which is reasonable in the circumstances is supplied by the court.” Restatement (Second) of Contracts §204.


author: MOTT, J.,

text:
    Frisbie v. Wiseman

      C.P. of Bradford County,
    no. 00CV000159.

      John Kocsis, for plaintiffs.

      David W. Saba and Shawn P. Phillips, for defendant Smith.

      David R. Bahl, for defendant Wiseman.

      Mark T Perry, for defendant clinic.
    October 26, 2001
   MOTT, J.,

Nancy Frisbie and Grant Frisbie, her husband, the plaintiffs, began this action by filing a praecipe for writ of summons on April 25,2000. In their complaint, filed on July 24,2000, they make various allegations against Barbara Wiseman M.D., Anna Mae Smith, physician assistant, and the Guthrie Clinic Ltd., the defendants. The complaint contains the following averments: On March 21, 1996, Anna Mae Smith conducted a gynecological examination of Nancy Frisbie at the Guthrie Clinic. During that examination Anna Mae Smith noted irritation and ulcerations in the vulva area. On July 16,1996, Nancy Frisbie returned to the Guthrie Clinic and complained of vaginal irritation in the same area noted during her March 21 visit. During that second examination Anna Mae Smith told Nancy Frisbie that she had genital herpes, and Barbara Wiseman prescribed medication intended to treat genital herpes. On March 31, 1997, and, on April 24, 1998, Anna Mae Smith informed Nancy Frisbie that she still had genital herpes, and Barbara Wiseman again prescribed medication. Then, on June 17, 1999, Nancy Frisbie was examined by Carla Cohen, physician assistant, who arranged a referral for a biopsy of the ulceration of the vulva. The biopsy revealed that a cell carcinoma was located in the vulva area. Next, on June 30,1999, S. Bryan Rouse M.D., diagnosed Nancy Frisbie as having a vulvar carcinoma. Nancy Frisbie underwent surgery on July 20, 1999, to remove the cancerous tissue. Thereafter, Nancy Frisbie underwent a course of postoperative radiation therapy treatment to control the tumor.

Count I of the complaint sets forth a cause of action sounding in negligence against Barbara Wiseman; Count II sounds in negligence against Anna Mae Smith; Count III asserts a claim against the Guthrie Clinic based upon the alleged negligence of Barbara Wiseman and Anna Mae Smith, as employees of the clinic; and Count IV asserts a loss of consortium claim against all the defendants on behalf of Grant Frisbie, Nancy Frisbie’s husband. After the pleadings were closed and the discovery phase completed, motions for summary judgment were filed separately by each defendant. The aforesaid motions are now before the court for disposition, and we will consider the motions seriatim.

MOTION FOR SUMMARY JUDGMENT FILED BY BARBARA WISEMAN M.D.

Barbara Wiseman contends that the plaintiffs’ claims are time barred because Nancy Frisbie did not believe that the diagnosis of genital herpes was correct, and because she acknowledged that she could have sought a second opinion. We disagree. The evidence contained in the record raises a genuine issue of material fact concerning whether Nancy Frisbie could have reasonably relied upon the diagnosis of Anna Mae Smith. Also, the evidence does not make it clear and free from doubt that Nancy Frisbie had knowledge of the existence of the cancer prior to June 30, 1999.

The record contains ample evidence which suggests that Nancy Frisbie was justified in relying upon the diagnosis of Anna Mae Smith. Nancy Frisbie, when asked whether she had sexual relations with anyone prior to meeting her husband, testified that, “I have been with him for a long time, since we’ve been about 15,16 years old. There probably was a few boyfriends in between there.” (Deposition of Nancy Frisbie, 3/26/01, pp. 17, 18.) She also stated, “I had had sexual relations with other men prior to my marriage to Grant.” (Affidavit of Nancy Frisbie, plaintiffs’ exhibit H.) Furthermore, Grant Frisbie acknowledged that he also was sexually active prior to their marriage. (Affidavit of Grant Frisbie, plaintiffs’ exhibit I.) Anna Mae Smith told Nancy Frisbie that genital herpes can lay dormant for years. (Deposition of Nancy Frisbie, 3/26/01, p. 17; affidavit of Nancy Frisbie, plaintiffs’ exhibit H.) Thus, it appears that Nancy Frisbie could reasonably have believed that it was possible for her to have contracted genital herpes. Skepticism on the part of Nancy Frisbie, as to the correctness of the diagnosis indicating the existence of genital herpes, does not constitute knowledge of the existence of the cancer.

Moreover, Anna Mae Smith forwarded letters to Nancy Frisbie which stated, “I am sure that you do have the viral infection [genital herpes] that we spoke about at the time of your appointment,” and “I am sure that the virus [genital herpes] we discussed at the time of your appointment is present.” (Plaintiffs’ exhibit G.) Nancy Frisbie, a layperson, should not be charged with greater knowledge of her physical condition than that possessed by the medical personnel on whose advice she relied. Bohus v. Beloff, 950 F.2d 919, 929 (1991). “To put upon a patient the duty of knowing the nature of her ailment and its relation to her prior treatment before it is ascertained with a degree of certainty by the medical profession is a great burden to impose upon her.” Id. at 930.

Likewise, we are unpersuaded by Barbara Wiseman’s argument that the plaintiffs should have sought a second opinion. The plaintiffs argue that Nancy Frisbie relied upon a diagnosis formed by a physician assistant and verified by a medical doctor, that genital herpes is not a life threatening disease, and that, therefore, nothing prompted them to seek a second opinion. Lastly, the evidence does not demonstrate, as Barbara Wiseman asserts, that Nancy Frisbie acknowledged that she could have sought a second opinion. Rather, the evidence demonstrates that she simply acknowledged that she was able to make an appointment with “the doctor,” referring to Barbara Wiseman. (Deposition of Nancy Frisbie, 3/26/01, p. 19.) Nancy Frisbie also stated:

“I did not ask for any second opinions or to be seen by Dr. Wiseman because I thought Anna Mae Smith was discussing my case with her. Dr. Wiseman wrote some of my prescriptions for the herpes medicine. I trusted Anna Mae Smith and Dr. Wiseman and the explanation given to me. I took the medicines that they prescribed for me and tried to give it time to work. I was sent letters confirming the herpes after the lab tests were completed.” (Affidavit of Nancy Frisbie, plaintiffs’ exhibit H.)

Considering that Nancy Frisbie has only a tenth grade education, and based on the foregoing, we determine that a genuine issue exists regarding whether it was reasonable for Nancy Frisbie to have trusted Anna Mae Smith’s professional judgment, and to have relied upon her diagnosis. Also, because Barbara Wiseman signed the prescriptions and initialed the clinic reports, a question lingers concerning whether it was reasonable for Nancy Frisbie to have believed that Barbara Wiseman was supervising her treatment. In that Nancy Frisbie continued to take the prescribed medication, presumably in hopes of managing a malady that had been diagnosed as genital herpes, the evidence supports an inference that she relied upon the diagnosis.

In sum, it is not reasonable to have expected Nancy Frisbie to have been aware of the presence of the cancer before June 30, 1999. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992). Viewing the evidence in a light most favorable to the non-moving party, we conclude that the plaintiffs did not know of the existence of the cancer until June 30, 1999, and that they then timely initiated this action on April 25, 2000. Barbara Wiseman has failed to meet her burden, as the moving party, of proving that Nancy Frisbie was aware of the cancer prior to June 30, 1999, and as a result, she is not entitled to judgment on this issue as a matter of law.

Next, we determine that the evidence contained in the record demonstrates that a genuine issue of material fact exists concerning whether Barbara Wiseman owed a duty of care to the plaintiffs, and hence, she is not entitled to judgment as a matter of law on this issue either. Anna Mae Smith stated that Barbara Wiseman acted as her “supervising physician.” (Deposition of Anna Mae Smith, 12/20/00, pp. 46, 47.) She also testified that Barbara Wiseman was her “covering physician,” and that Barbara Wiseman served as her “primary doctor” in 1996, 1997 and 1998. (Deposition of Anna Mae Smith, 12/20/ 00, p. 10.) Anna Mae Smith additionally stated that “she’s [Barbara Wiseman is] my supervising physician and she co-signed my notes.” (Deposition of Anna Mae Smith, 12/20/00, p. 16.) She stated, concerning the scope of Barbara Wiseman’s supervision, “[a]s a supervising physician, she was available if there was anything I had questions on.” (Deposition of Anna Mae Smith, 12/20/00, p. 17.) Anna Mae Smith testified that Barbara Wiseman was her “primary doc” when she applied to the Board of Medicine for certification as a physician assistant, pursuant to 49 Pa. Code §18.141. (Deposition of Anna Mae Smith, 12/20/00, p. 10.) Furthermore, the evidence shows that Barbara Wiseman signed the prescriptions and initialed the clinic reports. Thus, a genuine issue of material fact exists as to whether she functioned as Anna Mae Smith’s supervising physician concerning the care of Nancy Frisbie. (Plaintiffs’ exhibit E and F; deposition of Anna Mae Smith, 12/20/00, pp. 22,23,27,49,50; deposition of Barbara Wiseman, 12/20/00, pp. 10-13, 18.) Barbara Wiseman acknowledged that she, as well as other medical doctors, supervised Anna Mae Smith at all times relevant to this matter. (Deposition of Barbara Wiseman, 12/20/00, pp. 8,21,22.) In addition, Arnold Bank M.D., testified that Barbara Wiseman “failed to take notice of this patient and exercise her obligation to supervise and check Ms. Smith which she certainly breached four times with this patient.” (Report of Arnold Bank M.D.)

In addition, Barbara Wiseman submitted an application, signed by her on March 21,1997, to the Pennsylvania State Board of Medicine, for physician assistant supervisor status relative to Anna Mae Smith. The application was received by that board on April 1,1997. The verification statement included as part of that application states, in pertinent part:

“I will direct and exercise supervision over the named physician assistant with the rules and regulations of the State Board of Medicine. I recognize that I retain full professional and legal responsibility for the performance of the physician assistant and the care and treatment of the physician assistant’s patients. ...
“The physician assistant [Anna Mae Smith] identified in this application will only assist the primary physician assistant supervisor [Barbara Wiseman] and substitute physician assistant supervisor(s) listed in this application. This physician assistant will only provide medical services to the patients under the care of the primary and substitute supervisor(s) named in this application.”

While there is no evidence contained in the record which would demonstrate that Barbara Wiseman was approved as a physician assistant supervisor by the Board of Medicine, the fact that she submitted the aforesaid application, coupled with the evidence of her conduct discussed above, raises a question as to whether Barbara Wiseman owed a duty of care to the plaintiffs because she served as Anna Mae Smith’s supervising physician. In sum, Barbara Wiseman has failed to demonstrate that it is clear and free from doubt that she did not owe a duty of care to the plaintiffs. Thus, this issue is best preserved for trial.

MOTION FOR SUMMARY JUDGMENT FILED BY ANNA MAE SMITH

Anna Mae Smith asserts that the complaint is time barred. In that her assertions are nearly identical to the assertions made by Barbara Wiseman upon this issue, we rely upon the above discussion, and we will deny the motion. We add only that Anna Mae Smith is incorrect in stating that the discovery rule was waived by the plaintiffs ’ failure to assert the rule in the complaint or in their reply to new matter. The plaintiffs pleaded facts in their complaint sufficient to sustain application of the rule. Prevish v. Northwest Medical Center, 692 A.2d 192, 197 (Pa. Super. 1997).

MOTION FOR SUMMARY JUDGMENT FILED BY THE GUTHRIE CLINIC LTD.

The Guthrie Clinic also asserts that the complaint is time barred. Here again, we rely upon our discussion above, and we will deny the motion. However, in their complaint the plaintiffs allege that at all times relevant Barbara Wiseman and Anna Mae Smith “were the agents, servants or employees of the Guthrie Clinic Ltd. engaged in the ordinary course and scope of their duties.” Those allegations sound in vicarious liability, and the evidence raises a genuine question as to whether the Guthrie Clinic is liable under the doctrine of respondeat superior for the allegedly negligent conduct of the other defendants. Thus, we will allow the vicarious liability cause of action to proceed. It is the only claim against the Guthrie Clinic adequately pleaded in the complaint, and the clinic is not entitled to judgment on that claim.

However, the plaintiffs now argue that the complaint also asserts against the clinic a claim sounding in corporate negligence. Such a claim is not adequately pleaded in the complaint, and such a claim is not applicable to the Guthrie Clinic anyway. “Corporate negligence is a doctrine under which [a defendant] is liable if it fails to uphold the proper standard of care [it owes to] the patient .... This theory of liability creates a nondelegable duty which the [defendant] owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party....” Thompson v. Nason Hospital, 527 Pa. 330, 339, 591 A.2d 703, 707 (1991). (footnote omitted) Hospitals and health maintenance organizations are the only medical providers that have been held to be subject to such a claim in Pennsylvania, because they provide for the total health care of their patients. Thompson v. Nason Hospital, supra; Shannon v. McNulty, 718 A.2d 828 (Pa. Super. 1998). We have specifically held that corporate negligence is not applicable to physician practice groups, which is what the Guthrie Clinic is. Johnson v. Wiseman, 3 Brad. Cty. L J. 95, 98 (1998). We further said that: “the Guthrie Clinic is not a comprehensive health center coordinating the total care of patients. Nor does it appear that it is an entity, separate from its physician members, that controls a patient’s total medical care.” Id.

Therefore, the motion for summary judgment filed by the Guthrie Clinic will be granted on any claim of corporate negligence being asserted against it in this matter.

Accordingly, we enter the following:

ORDER

And now, October 26,2001, in accord with the memorandum opinion filed this date, the motions for summary judgment filed by the defendants, Barbara Wiseman M.D. and Anna Mae Smith are denied. The motion for summary judgment filed by the defendant, Guthrie Clinic Ltd., is granted in part and denied in part. It is granted on any claim of corporate negligence being asserted. It is denied in all other respects.

      . A party may move for summary judgment after the relevant pleadings are closed, if, after the completion of discovery relevant to the motions, the party who bears the burden of proof at trial has failed to produce evidence essential to submit the case to a jury at trial. Pa.R.C.P. 1035.2. Our standard in determining whether to grant such a motion is well settled. We must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Merriweather v. Philadelphia Newspapers Inc., 453 Pa. Super. 464, 471, 684 A.2d 137, 140 (1996). Summary judgment can only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id.

        . 42 Pa.C.S. §5524(2) provides that a medical malpractice action for personal injury must be commenced within two years.

      . The “discovery rule” is a doctrine which provides that where the existence of an injury is not known to the complaining party and such knowledge could not reasonably be ascertained within the prescribed period, the period of limitations does not begin to run until discovery of the injury is reasonably possible. Bradley v. Ragheb, 429 Pa. Super. 616, 633 A.2d 192 (1993).

      . 49 Pa. Code §18.144 provides, in pertinent part:
      “A primary physician assistant supervisor shall assume the following responsibilities. The supervisor shall: ...
      “(7) Accept full professional and legal responsibility for the performance of the physician assistant and the care and treatment of his patients.”

      . Paragraphs 13-15 of the complaint provide:
      “(13) On June 17, 1999, the plaintiff Nancy Frisbie presented to the Guthrie Clinic Ltd. for her yearly gynecological examination. The physical examination was performed by one Carla Cohen FAP, who immediately arranged a referral for a biopsy of the ulceration of the vulva.
      “(14) On June 18,1999, a biopsy of the vulva was performed and it was discovered that the plaintiff Nancy Frisbie had a moderately differentiated basaloid squamous cell carcinoma.
      “(15) On June 30, 1999, after a complete and thorough physical examination and after review of the biopsy results, S. Bryan Rouse M.D., a member of the Obstetrics-Gynecological Department of the Guthrie Clinic Ltd. diagnosed the plaintiff Nancy Frisbie as having a large vulvar carcinoma, involving both sides of the vulva approaching but not entering the vagina.”


author: TERESHKO, J.,

text:
    Wood v. E.I. du Pont de Nemours and Company Inc.

      Eugene D. McGurk Jr., for plaintiffs.

      Mark S. Stewart, for defendant.
    June 22, 2001
   TERESHKO, J.,

This case presents an appeal from this court’s order of May 3, 2001, granting defendant’s petition, after oral argument, for change of venue to Bradford County pursuant to Pa.R.C.P. 1006 (d)(1).

This personal injury action was brought in Philadelphia County against the defendant, E.I. du Pont de Nemours and Company, by plaintiffs Jason Wood Sr. and Holly Wood. The defendant petitioned this court for a transfer of venue to Bradford County pursuant to Pa.R.C.P. 1006(d)(1), alleging plaintiffs’ choice of venue in Philadelphia was vexatious and oppressive. On March 17, 2000, this court denied defendant’s first petition for change of venue without prejudice. Subsequently, on March 5, 2001 of the following year, defendant filed a second petition for a transfer of venue to Bradford County with answer filed by plaintiffs on April 4, 2001. In light of newly detailed information on the record established at oral argument on April 27, 2001, along with defendant’s specification of key witnesses and their potential testimony, this court granted the defendant’s petition for transfer of venue on May 3,2001. Pursuant to Pa.R.A.P. 1925(b), this court received plaintiffs’ statement of matters complained of upon appeal on June 1, 2001. This opinion will consolidate all issues raised by plaintiffs in the instant case.

The relevant facts relating to this cause of action are as follows: this matter was commenced by the plaintiffs to recover for injuries suffered as a result of a fall. Plaintiff Jason Wood alleges that on January 8,1998, he tripped and fell on a hole in the shipping area lot of the defendant’s plant in To wanda, Bradford County, Pennsylvania, while making a pick-up for his employer, a New Jersey company. Plaintiffs then filed a civil suit in Philadelphia County against defendant seeking damages incurred from the alleged fall. Plaintiffs were, at the time of the accident, and continue to be, residents in the State of Delaware. Defendant is a foreign corporation with a registered office in Philadelphia County.

The doctrine of forum non conveniens is embodied in Pa.R.C.P. 1006(d)(1) which states, “for the convenience of parties and witnesses, the court upon petition of any party, may transfer an action to the appropriate court of any other county where the action could have originally been brought.” The supplement to this rule, Pa.R.C.P. 2179(a), provides “except as otherwise provided by an Act of assembly or by subdivision (b) of this rule, a personal action against a corporation or similar entity may be brought in and only in:

“(1) the comity where registered office or principal' place of business is located;
“(2) a county where it regularly conducts business;
“(3) the county where the cause of action arose; or
“(4) a county where the transaction or occurrence took place out of which the cause of action arose.”
“[0]ne of the most important factors in determining whether a dismissal on ground of forum non conveniens is appropriate is whether an alternative forum is available to the plaintiff.” Goodman by Goodman v. Pizzutillo, 452 Pa. Super. 436, 446, 682 A.2d 363, 367-68 (1996) (quoting Farley v. McDonnell Douglas Truck Services Inc., 432 Pa. Super. 456, 638 A.2d 1027 (1994) (citing Plum v. Tampax Inc., 399 Pa. 553, 160 A.2d 549 (1960)). A court reviewing a change of venue petition has considerable discretion when determining whether to grant the petition. Although the plaintiffs’ choice of forum should be given significant weight there are many factors a court must look to when reviewing a petition to transfer venue. Wills v. Kaschak, 420 Pa. Super. 540, 617 A.2d 37 (1992).

In Cheeseman v. Lethal Exterminator Inc., 549 Pa. 200, 701 A.2d 156 (1997), the Pennsylvania Supreme Court established the standard this court must use when ruling on a petition to transfer venue pursuant to Pa.R.C.P. 1006(d)(1). Under this standard, the defendant must successfully show with detailed information on the record that the plaintiff’s forum is oppressive or vexatious to them. Id. at 213, 701 A.2d at 162. A plaintiff’s chosen forum is oppressive to the defendant, for instance, if “trial in another county would provide easier access to witnesses or other sources of proof, or to the ability to conduct a view of premises involved in the dispute.” Id. at 213, 701 A.2d at 162. For example, the record may include the affidavits of witnesses or the deposition testimony of witnesses. Rummer v. St. Joseph Regional Health Network, 2001 WL 614888, *2 (Pa. Super.) (citing Johnson v. Henkels & McCoy Inc., 707 A.2d 237 (Pa. Super. 1997)).

Claims that “no significant aspect of the case involves the chosen forum, and that litigating in another forum would be more convenient” are not sufficient to establish that the chosen forum is oppressive or vexatious. Cheeseman, supra at 213, 701 A.2d at 162. The defendant must show more than the chosen forum is merely inconvenient. Id. The doctrine of forum non conveniens provides the court with a means of looking beyond the technical considerations such as jurisdictions and venues to determine whether litigation in the plaintiff’s chosen forum would serve the interest of justice under the particular circumstances. Alford v. Philadelphia Coca-Cola Bottling Co. Inc., 366 Pa. Super. 510, 513, 531 A.2d 792, 794 (1987).

In the present case, the plaintiffs chose to bring suit in Philadelphia County; however, this action could have been brought in Bradford County, where the cause of action arose. Therefore, an alternative forum was, and is still, available to the plaintiffs.

The hotly disputed issue in this case is whether a hole existed at defendant’s plant on the day of plaintiff’s fall. Defendant’s case will attempt to prove that such a hole never existed prior to, or at the time of, plaintiff’s alleged fall in the shipping lot on January 8, 1998. As a result, defendant plans to call expert witness, Malcolm Lim, who conducted a ground-penetrating radar test of the pavement. (See exp. rep. of M. Lim.)

Defendant has also shown with detailed information on the record they plan to call the following plant employees: John Flanagan, to testify there were no problems with the 1997 paving job, and that the shipping area has not been repaved since 1997 (dep. of J. Flanagan at 18, 20); John Keegan, to testify that no construction permits have been issued for repaving or any other type of repair since the alleged accident (dep. of J. Keegan at 14-16); George Watson, to testify that no such work has been done in the relevant area since the time of the alleged accident (aff. of G. Watson at ¶3); Mike Walsh, to show there were no drains or similar holes in the relevant area that had been removed or covered since the alleged accident (dep. of M. Walsh at 12, 19); Edwin Robertson, to explain the purpose of monitoring wells in the shipping yard and testify that none existed at the time of the alleged accident (see dep. of M. Walsh at 8 (identifying E. Robertson as person most knowledgeable about monitoring wells in the area)); Vance Seely, to testify that none of the bi-monthly safety audits performed in the shipping area around the time of the alleged accident mention the existence of any hole in the lot (dep. of V. Seely at 25); Walter Beebe, to testify that none of the truck drivers who performed their duties in the shipping area lot ever complained about the alleged hole (dep. of W. Beebe at 31-32). These specified witnesses, essential to defendant’s case, are located about 190 miles from Philadelphia County. However, if the trial were to be held in Bradford County, these witnesses would be less than 2 miles away from the Bradford County Courthouse.

Defendant plans to call employees of the IA Construction Corporation who performed the paving job at the shipping site within DuPont’s Towanda plant, prior to the alleged accident. DuPont is prepared to call three of IA Construction foremen that worked on the job to testify that IA Construction left no holes unpaved in the relevant area. Defendant also plans to call IA Construction President Terry Brofee, to authenticate documents that establish the paving job was completely finished by October 3,1997, and to testify that no one from IA Construction ever returned to DuPont’s Towanda plant after that date to remedy any problems with the job. (Aff. of T. Brofee at ¶¶3-4.) IA Construction is located in Muncy, Pennsylvania within Lycoming County, a neighboring county of Bradford County. As a result, the witnesses from IA Construction would be required to travel over 173 miles if this case were to be tried in Philadelphia County. Since defendant has specified their key witnesses and also their potential testimony regarding the condition of the pavement and the alleged hole after the first denial for change of venue, it is now clearly shown on the record that Bradford County would provide easier access to these witnesses.

In order for a proper verdict, it may be essential to allow the jury an opportunity to view the scene in order to weigh the testimony of the experts and witnesses. The decision whether to grant a request for a jury view is within the discretion of the trial judge. (Pa.R.Crim.P. 1112.) “[A] view may sometimes be of the highest importance where there is a conflict of testimony. It may enable the jurors to see on which side the truth lies.” Lobozzo v. Adam Eidemiller Inc., 437 Pa. 360, 366, 263 A.2d 432, 435 (1970) (quoting Gorgas v. Philadelphia H. & P. Railroad Co., 144 Pa. 1, 13, 22 A. 715 (1891)).

In Johns v. First Union Corporation, 777 A.2d 489 (Pa. Super. 2001), defendant sought a transfer of venue from Philadelphia County to Bucks County where the alleged accident took place. Defendant reasoned that besides several witnesses located in Bucks County, a view of the accident scene by the jury would be more convenient. However, the defendant failed to establish this matter on the record in accordance with Pa.R.C.P. 206, requiring a petition to specify the relief sought and state material facts which constitute those grounds. While viewing the scene is seldom necessary, if it is warranted, a jury can be bussed to the locale. Id. at 492. Since Bucks County is only about 30 miles from Philadelphia County, the cost to the court and little burden placed on the jurors would be warranted if a view of the scene is determined necessary. As a result, the Superior Court denied the motion for transfer of venue since the defendant companies did not establish that a trial in Philadelphia County would prove oppressive or vexatious.

Unlike Johns, defendant has established, pursuant to Pa.R.C.P. 206, it is necessary for the jury to view the pavement where the alleged fall took place in order to determine if a hole existed, was repaired or paved over at any time prior to, or after the alleged accident. The defense intends to show the alleged location of the hole had been paved just months prior to the accident and that such a hole never existed on the day of plaintiff’s accident. The defense counsel maintains that this determination can, and should, be made by the jury to determine negligence, the basis of this suit. Compared to the Johns case, bussing the present jury 190 miles, from Philadelphia County to Bradford County, to view the accident scene would place an unnecessary burden on the jury and unneeded cost on the court. Therefore, under Cheeseman, Bradford County would provide easier access to conduct a view of premises involved in the dispute. See Cheeseman, supra.

A trial in Bradford County would better serve the interests of justice since it provides easier access to witnesses and also an ability for the jury to view the characteristics of the shipping lot pavement, where the alleged fall took place. Allowing this trial to proceed in Philadelphia County would be not only oppressive to defendant, but the monetary expenses possibly incurred, either for travel and/or lodging and meals to Philadelphia County, as compared to Bradford County, do not justify the trial of this case in Philadelphia County. A transfer of venue to Bradford County is hereby ordered.


author: SHEPPARD JR., J.,

text:
    Terra Equities Inc. v. First American Title Insurance Co.

      Jennifer M. McHugh, for plaintiffs.

      Eugene J. Maginnis, David H. Cox and Jan Z. Krasnowiecki, for defendant.

      March 16, 2001
   SHEPPARD JR., J.,

Plaintiffs, Terra Equities Inc., Charles McDonald, trustee, and Martin E. O’Boyle Sr. have filed a motion for summary judgment. For the reasons stated, this court will issue a contemporaneous order granting the motion, in part, and denying the motion, in part.

BACKGROUND

The background in this matter is set forth in this court’s opinion dated August 2, 2000. To summarize, this case stems from a dispute over title insurance coverage for the leasehold interest of Commerce Limited Partnership no. 9219 in real property located in Orange County, Florida. Plaintiffs filed a complaint against First American Title insurance Company based on breach of contract and bad faith on March 17, 2000.

This court overruled First American’s preliminary objections on August 2, 2000. First American filed an answer to the complaint with “new matter,” setting forth 33 affirmative defenses. First American has agreed that it will not assert at trial 10 of the defenses set forth in the new matter. The plaintiffs, however, have filed this motion, which requests summary judgment not only on the unasserted defenses but also as to the 11 defenses on which First American intends to rely.

If the court denies the motion with regard to the asserted defenses, the plaintiffs have requested leave to file an amended complaint that, among other things, will add Commerce Limited Partnership no. 9219-11 as an additional plaintiff.

DISCUSSION

Pennsylvania Rule of Civil Procedure 1035.2 allows a court to enter judgment:

“[I]f, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

I. Granting Summary Judgment on the Unasserted Defenses Is Appropriate

In paragraphs 14 and 15 of its response to the motion, First American concedes that “the evidence revealed during pretrial discovery is insufficient to establish [the unasserted defenses]. First American does not intend to rely upon these defenses at trial.” Because First American bears the burden of proof for each of these defenses, summary judgment on each of the unasserted defenses will be granted.

II. Granting Summary Judgment on the Asserted Defenses Is Unwarranted

Plaintiffs next argue that First American should be estopped from raising the asserted defenses by virtue of the doctrine of equitable estoppel. Under this doctrine, a person is precluded “from doing an act differently than the manner in which another was induced by word or deed to expect.” Kreutzer v. Monterey County Herald Co., 560 Pa. 600, 606, 747 A.2d 358, 361 (2000). A successful claim of equitable estoppel requires evidence of inducement and reliance:

“The inducement may be words or conduct and the acts that are induced may be by commission or forbearance provided that a change in condition results, causing disadvantage to the one induced. More important, the law requires that:
“There can be no equitable estoppel where the complainant’s act appears to be rather the result of his own will or judgment than the product of what the defendant did or represented. The act must be induced by, and be the immediate or proximate result of, the conduct or representation, which must be such as the party claiming the estoppel had a right to rely on. The representation or conduct must of itself have been sufficient to warrant the action of the party claiming the estoppel. If notwithstanding such representation or conduct he was still obliged to inquire for the existence of other facts and to rely on them to sustain the course of action adopted, he cannot claim that the conduct of the other party was the cause of his action and no estoppel will arise. Where there is no concealment, misrepresentation, or other inequitable conduct by the other party, a party may not properly claim that an estoppel arises in his favor from his own omission or mistake. Estoppel cannot be predicated on errors of judgment by person asking the benefit.” Price v. Chevrolet Motor Division of General Motors Corp., 765 A.2d 800, 808 (Pa. Super. 2000) (quoting Zitelli v. Dermatology Education & Research Foundation, 534 Pa. 360, 369-70, 633 A.2d 134, 139-40 (1993)). (emphasis added)

The plaintiffs contend that, prior to the filing of the instant action, First American raised only three defenses and that First American should be limited, here, to those three defenses by virtue of equitable estoppel. This argument is unconvincing. There is no assertion that First American intentionally concealed its intention to raise the asserted defenses. Moreover, the plaintiffs have cited no authority that would require First American to reveal the asserted defenses prior to filing an answer under these circumstances. Accordingly, to the extent that the motion seeks to have the asserted defenses stricken, it is denied.

TTT- The Plaintiffs Are Granted Leave To Amend the Complaint, But May Not Add Commerce II As an Additional Plaintiff

Under Pennsylvania law, leave to amend pleadings should be granted liberally: Associates Inc., 454 Pa. Super. 188, 199, 685 A.2d 141, 147 (1996).

“Although the decision of whether to grant leave to amend a pleading is a matter of judicial discretion, such amendments should be allowed at any stage of the proceedings to secure a decision on the merits, unless they violate the law or unfairly prejudice the rights of the other party. Thus, if no prejudice results, pleadings may be amended after pleadings are closed, while a motion for judgment on the pleadings is pending, at trial, after judgment, or after an award has been made and an appeal taken therefrom. The fundamental purpose of this rule is to prevent cases from turning on purely technical defects. Moreover, prejudice, in turn, must be more than a mere detriment to the other party because any amendment requested certainly will be designed to strengthen the legal position of the amending party and correspondingly weaken the position of the adverse party.” MacGregor v. Mediq Inc., 395 Pa. Super. 221, 227, 576 A.2d 1123, 1126 (1990). (citations and quotation marks omitted). For these reasons, a court may disallow leave to amend pleadings only when prejudice to the other party would result or when the amendment itself would violate a positive rule of law. Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 280, 643 A.2d 81, 84 (1994); Somerset Community Hospital v. Allan B. Mitchell &

Here, First American posits five primary grounds on which it asserts the court should deny the plaintiffs leave to amend the complaint:

“First, . . . there is no rule of law that requires First American to notify plaintiff of all defenses prior to plaintiff filing this lawsuit, and First American appropriately included all known defenses to the complaint in its first pleading. Second, court rules do not require that a plaintiff anticipate and refute a defendant’s new matters in its complaint. Third, plaintiff had the opportunity to assert its additional factual matters in its response and preliminary objections to First American’s new matters and failed to do so. Fourth, plaintiff had knowledge [of] all of the facts which form the basis of First American’s coverage defenses before filing suit since they are based upon the allegations in the complaint, supporting affidavits, and the assignment agreement between Commerce I and Commerce II.
“Finally, First American opposes plaintiff’s motion for leave on the ground that the proposed amended complaint adds Commerce II as an additional plaintiff which does not have standing to sue First American for breach of contract and bad faith.” First American’s memorandum at 12.

First American does not cite any law to support its first four arguments. Thus, even if all of its points are correct, they do not put forward a positive rule of law that would preclude the plaintiffs from filing an amended complaint. In addition, none of these four assertions establish prejudice to First American in allowing the filing of an amended complaint and thus do not operate to preclude the plaintiffs from filing an amended complaint.

First American’s fifth argument, which focuses on the portion of the proposed amended complaint that would add Commerce II as a plaintiff for the breach of contract and bad faith claims, is persuasive. To oppose this proposed amendment, First American points out that “[i]n general, the duty of a title insurance company runs only to its insured, not to third parties who are not party to the contract.” Hicks v. Saboe, 521 Pa. 380, 384, 555 A.2d 1241, 1243 (1989). As an exception to this rule, third parties may bring claims based on an insurance contract if they are intended third party beneficiaries, a status that First American argues Commerce II cannot hope to attain. See McKeeman v. CoreStates Bank N.A., 751 A.2d 655, 659 (Pa. Super. 2000) (“an intended third party beneficiary may have a limited cause of action under [an insurance] contract”).

Pennsylvania has adopted section 302 of the Restatement (Second) of Contracts for defining the term “intended beneficiaries”:

“Intended and incidental beneficiaries
“(1) Unless otherwise agreed ... a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
“(a) the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
“(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
“(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.” Looby v. Local 13 Productions, 751 A.2d 220, 222 (Pa. Super. 2000).

Here, a review of the pertinent insurance policy reveals that Commerce II is not a named insured. Proposed amended complaint exhibit C at sch. A. In addition, there is no indication that a promise of insurance was made to satisfy any obligation to Commerce II or that any benefit to Commerce II was intended. Indeed, it does not appear that Commerce II was in existence at the time First American issued the relevant insurance policy. First American’s memorandum exhibit B at 18. This prevents Commerce II from being considered an intended beneficiary. Consequently, Commerce II does not have standing to assert a claim for breach of contract or bad faith against First American, and, to the extent that amendments to the complaint purport to assert such a claim, they should not be permitted. If the Plaintiffs wish to file an amended complaint for other reasons, however, it will not prejudice First American or violate a positive rule of law and thus is permissible.

CONCLUSION

While summary judgment on the unasserted defenses is appropriate, such judgment is not warranted on the asserted defenses. In this later regard, summary judgment is denied.

First American will suffer no prejudice if the plaintiffs are permitted to file an amended complaint. Any amendments that assert a claim on behalf of Commerce II, however, violate a positive rule of law and are impermissible. Accordingly, the plaintiffs are granted leave to file an amended complaint consistent with this opinion.

ORDER

And now, March 16, 2001, upon consideration of the motion for summary judgment of plaintiffs, Term Equities Inc., Charles McDonald, trustee, and Martin O’Boyle Sr., the opposition to it of defendant, First American Title Insurance Company, the respective memoranda, all other matters of record, and in accord with the opinion being filed contemporaneously with this order, it is hereby ordered that:

(1) The motion for summary judgment is granted, in part and denied, in part;

(2) Count I of the motion is granted and paragraphs 11,14,16,17,18,22,25,26,28 and 30 of the defendant’s new matter are stricken;

(3) Count II of the motion is denied; and

(4) Count III of the motion is granted, and the plaintiffs are granted leave to file an amended complaint, consistent with this opinion, within 20 days from the date of this order.

      . Available at http://courts.phila.gov/cptcvcoxnp.htm.

      . Commerce is a Pennsylvania limited partnership with Terra Equities Inc., the lead plaintiff, as a general partner and Charles McDonald, trustee, and Martin E. O’Boyle Sr. as limited partners.

      . These defenses, referred to collectively as the “unasserted defenses,” are set forth in paragraphs 11,14,16-18,22,25-26,28 and 30 of the new matter.

      . These “asserted defenses” are set forth in paragraphs 3, 6, 9-10, 13,15,19-21,23,29 and 31-32 of the new matter. While the plaintiffs assert that the allegations in paragraph 19 were “asserted without any factual basis,” plaintiffs’ memorandum at 6, it appears from First American’s memorandum that it intends to rely on the defense asserted in paragraph 19. First American’s memorandum at 5-6.

      . In general, “affirmative defenses are those as to which the defendant has the burden of proof.” Birdsboro Municipal Authority v. Reading Co. and Wilmington & N.R.R., 758 A.2d 222, 225 (Pa. Super. 2000).

      . It is not certain from the motion and the plaintiffs’ memorandum in what context First American initially raised these three defenses. However, it appears that these defenses were communicated in response to the plaintiffs’ claim for insurance coverage. See plaintiffs’ memorandum at 16.

      . The plaintiffs’ argument is equally unavailing under the doctrine of judicial estoppel, according to which “a party to an action is es-topped from assuming a position inconsistent with his or her assertion in a previous action, if his or her contention was successfully maintained.” Trowbridge v. Scranton Artificial Limb Co., 560 Pa. 640, 644, 747 A.2d 862, 864 (2000). (citation omitted) Here, there is no allegation that First American successfully maintained a position in conflict with the asserted defenses in a prior action.

      . In addition, First American specifically confronts the issue of prejudice by pointing out that pretrial discovery is closed, a fact that prevents additional discovery regarding the plaintiffs’ new allegations. This obstacle, however, is easily remedied, as the court can amend the case management order in this matter to allow further discovery beyond the original February 5, 2001 deadline if First American so requires. Thus, there is no prejudice to First American if the plaintiffs are permitted to file an amended complaint.

      . Once a third party has established its status as a third party beneficiary, its rights and liabilities under a contract “are the same as those of the original contracting parties.” Miller v. Allstate Insurance Co., 763 A.2d 401, 404 n.1 (Pa. Super. 2000) (citing General Accident Insurance Co. of America v. Parker, 445 Pa. Super. 300, 665 A.2d 502 (1995)).

      . To the extent that the insurance contract at issue may be governed by Florida law, it is worth noting that Florida law is sufficiently similar to Pennsylvania law on these issues:
      “The right of a third party beneficiary to sue under a contract is recognized in Florida, but that right is limited to those situations where the provisions of the contract clearly show an intention primarily and directly to benefit the individual bringing the suit or to a class of persons to which he claims to belong as a third party beneficiary.” Cigna First Underwriters Insurance Co. v. Leonard, 645 So.2d 28, 30 (Fla. Dist. Ct. App. 1994) (quoting Security Mutual Casualty Co. v. Pacura, 402 So.2d 1266, 1267 (Fla. Dist. Ct. App. 1981)). See also, Metropolitan Life Insurance Co. v. McCarson, 467 So.2d 277, 280 (Fla. 1985) (quoting Restatement (Second) of Contracts §302 (1979)).

      . In a response to interrogatories, the plaintiffs state that Commerce II was formed on April 26,1996, more than two years after the policy issue date of April 15, 1994. First American’s memorandum exhibit B at 18

      . In Miltenberg & Samton Inc. v. Assicurazioni Generali, S.p.A., January 2000, no. 3633 (C.P. Phila. Oct. 11, 2000) (Herron, J.) (http:/ /courts.phila.gov/cpcvtcomp.htm), the court confronted a similar issue to that raised here but concluded that the plaintiff there was a third party beneficiary who had standing under the insurance contract. In Miltenberg & Samton Inc., however, the insurance policy defined “insured” to encompass “additional insureds,” which were defined by a set of criteria that included the plaintiffs. Here, in contrast, the First American policy definition of “insured” is limited to Commerce Limited Partnership no. 9219 and its successors by operation of law. Complaint exhibit C, conditions and stipulations 11(a).