author: FIELD, J.,

text:
    Brown v. Albert Einstein Medical Center

      C.P. of Philadelphia County,
    August Term 1997,
    no. 0787.

      David C. Federman, for plaintiff.

      Cy Goldberg, for defendants.
    May 4, 2001
   FIELD, J.,

Plaintiff, Phyllis Brown, appeals from this court’s order of December 13, 2000, denying her motion for post-trial relief. For the reasons which follow, the post-trial motion was properly denied, and judgment entered on December 29, 2000, in favor of the defendants, should be affirmed.

A jury trial commenced on June 5, 2000. Plaintiff alleged that defendant doctor severed nerves while removing a fibroid tumor, thereafter causing incontinence. Plaintiff raised both negligence and informed consent claims. The negligence claim was based on the actions of the surgeon during the procedure. The informed consent claims were two-fold. First, plaintiff argued that she consented to the drainage of an abscess, not the removal of a fibroid tumor. Secondly, plaintiff argued that any consent she did give was not “informed,” because she was not adequately apprised of alternatives to surgery. The jury returned a defense verdict on all counts.

In her post-trial motion, plaintiff raises five arguments. First, she argues that the jury verdict sheet was improper because there were not separate negligence questions for the hospital and the doctor. Second, plaintiff argues that the court erred in precluding a missing witness argument in counsel’s closing remarks. Third, the court erred in allowing testimony regarding the lack of FDA approval for an alternative drug therapy. Fourth, the court’s rulings, taken together, denied the plaintiff a fair trial. Finally, plaintiff argues that the verdict was against the weight of the evidence. These arguments will be addressed in turn.

1. THE VERDICT SHEET WAS PROPER

Plaintiff objects to the omission of a separate question as to the negligence of the hospital. The only defendant listed on the jury questionnaire was Guy Hewlett M.D. It had been previously stipulated that Bruce Pierce M.D., a resident, was an employee of defendant Albert Einstein Medical Center. The parties agreed that Dr. Hewlett was in charge during the plaintiff’s surgery. Consequently, the plaintiff dropped her claim against Dr. Pierce. The release of Dr. Pierce also acted as a release of the hospital under an ostensible agency theory based on Pierce’s actions. Walls v. Hazleton State General Hospital, 157 Pa. Commw. 170, 629 A.2d 232 (1993), appeal denied, 536 Pa. 649, 639 A.2d 35 (1994). It was further agreed that Dr. Hewlett was a hospital employee, and that the hospital would be held liable if he were found negligent. As there was no evidence of corporate negligence upon which the hospital could be found independently responsible for plaintiff’s injuries, the only basis for hospital liability was on an ostensible agency theory based upon negligence by Dr. Hewlett.

Since there was no independent basis upon which to hold the hospital negligent, there was no reason for a separate question concerning the hospital’s liability. Hence, limiting the jury questions to Dr. Hewlett was proper.

2. THE COURT PROPERLY PRECLUDED PLAINTIFF’S “NEGATIVE INFERENCE” ARGUMENT

Plaintiff argues that her counsel should have been permitted to argue that a negative inference could be drawn from Dr. Pierce’s absence at the trial. However, Dr. Pierce was no longer an employee of the defendant hospital; he no longer resided in the Commonwealth; and he had been dismissed from the action. Thus, defense counsel had no more ability to compel his appearance than did plaintiff.

An adverse inference may be drawn from a witness’s absence only when three requirements are met: (1) the potential witness must be available to only one party; (2) the potential witness must have special knowledge relevant to a material issue; and (3) such evidence must not be cumulative. Kovach v. Solomon, 732 A.2d 1 (Pa. Super. 1999). Since all three of these requirements were not met, plaintiff’s argument was properly precluded.

3. THE COURT PROPERLY ADMITTED TESTIMONY REGARDING THE DRUG LUPRON

Plaintiff’s informed consent claim was premised, inter alia, on the claim that consent to surgery was not informed because plaintiff was not advised about alternatives to surgery, including the use of Lupron in the treatment of fibroid tumors. The testimony objected to concerned the timing of FDA approval for the drug. At the time of plaintiff’s surgery, Lupron had not been approved by the FDA for use in treating tumors such as hers. Plaintiff argues that Dr. Hewlett’s testimony on this subject contradicted his deposition testimony. Such could be the basis for cross-examination or argument, but is not a basis for excluding the witness’s answer.

4. PLAINTIFF RECEIVED A FAIR TRIAL

Plaintiff finds fault with several rulings. None of these arguments have merit. Two of the rulings complained of were evidentiary. A reversal based on an erroneous evidentiary ruling is warranted only where the ruling has caused actual prejudice. Aldridge v. Edmunds, 561 Pa. 323, 750 A.2d 292 (2000).

Plaintiff argues that she is entitled to a new trial based on the failure of the court to strike this testimony. On cross-examination of plaintiff’s expert, Burt Cagir M.D., defense counsel asked, “Doctor, you’re not here to criticize the — actual surgery, am I correct?” Dr. Cagir answered, “No.” (Cagir video transcript, p. 31.) Plaintiff’s counsel objected and moved to strike both the question and answer, on the ground that the exchange was misleading and unclear. The objection was overruled. Any unclear response could have been followed up on re-direct. There has been no showing that this ruling caused any actual prejudice. Hence it cannot be the basis for a new trial.

Next, plaintiff moves for a new trial on the grounds that the court improperly allowed defense counsel to ask plaintiff’s psychiatric expert about a prior hospitalization. Plaintiff claimed as one of her injuries major depression. Hospital notes from a prior admission included a diagnosis of acute depression in connection with an abortion. The court allowed questions about the prior diagnosis of depression, but precluded any mention of the abortion. Because plaintiff raised the issue of depression and claimed such as an element of her damages herein, any prior history of depression was relevant, Hence, a new trial is not warranted on these grounds, either.

Plaintiff claims that she was unfairly prejudiced by a two-and-a-half-day recess in the middle of trial. The recess was neither prejudicial nor entirely unexpected. During voir dire several potential jurors made it known to the court that they had graduations to attend within the anticipated trial period. No objection to their performing jury service at that time was made. Thus, counsel together selected these jurors for service. Originally, the court was going to sit a few half days because of these conflicts. As the trial progressed, plaintiff rested sooner than anticipated and defense counsel was having difficulty scheduling witnesses to be heard during the half days. The trial court, within its sound discretion, determined that a recess followed by uninterrupted trial days was a practical solution to the scheduling conflicts. No error occurred.

5. THE VERDICT WAS SUPPORTED BY THE EVIDENCE

When reviewing a jury’s verdict, the evidence must be viewed in the light most favorable to the verdict winner. Boutte v. Seitchik, 719 A.2d 319 (Pa. Super. 1998). A jury’s determination is not to be disturbed as long as there is sufficient evidence on the record to support it. Fannin v. Cratty, 331 Pa. Super. 326, 480 A.2d 1056 (1984). It is the province of the jury to determine the credibility of each witness. Commonwealth v. Glover, 399 Pa. Super. 610, 582 A.2d 1111 (1990). The jury may decide to accept all, some or none of a witness’ testimony. Id.

In light of all the evidence presented at trial, including conflicting evidence regarding the cause of Ms. Brown’s incontinence, the availability of alternate treatments, and Ms. Brown’s prior medical history, there were sufficient bases for the jury to find that the plaintiff had not met her burden and render a defense verdict.

For all of the foregoing reasons, judgment as entered on December 29,2000, in favor of the defendants, should be affirmed.


source: Caselaw Access Project

author: OLER JR., J.,

license: Public Domain

text:
    Kidd v. Biscuit

      C.P. of Cumberland County,
    no. 00-0213,
    Equity Term.

      Robert L. O’Brien, for plaintiff.

      William A. Duncan, for defendant.
    December 28, 2001
   OLER JR., J.,

In this unfortunate equity case, a mother has sued her son for reconveyance of certain realty which she alleges was transferred subject to a constructive trust and for damages in the form of rent arising from the son’s use of part of the property for storage. The son has counterclaimed for return of certain items of personal property allegedly withheld by the mother and for compensation for other items allegedly sold by her.

A trial in this matter was held on June 4, 2001, and August 23, 2001. The trial transcript was prepared and filed at the request of counsel for the parties. Proposed findings of fact and conclusions of law were submitted of record as of October 30, 2001.

For the reasons stated in this opinion, both parties will be afforded partial relief.

FINDINGS OF FACT

(1) Plaintiff is Shirley E. Kidd, 61; she resides at 60 Quarry Hill Road, Newville, Penn Township, Cumberland County, Pennsylvania.

(2) Defendant is Louis S. Biscuit Jr., 41; he resides at 118 Springfield Road, Newville, Cumberland County, Pennsylvania.

(3) Plaintiff is the natural mother of defendant and the adoptive mother of a 14-year-old child named Corey A. Kidd.

(4) Corey arrived as a foster child in plaintiff’s home in 1990, and was adopted by her and her then-husband (James Kidd) in 1994. Plaintiff and her husband were subsequently divorced, and Corey and plaintiff presently live alone at plaintiff’s 60 Quarry Hill Road address in Newville, Pennsylvania.

(5) Corey has “reattachment disorder,” attention deficit hyperactivity disorder, oppositional disorder, cerebral palsy and a degree of mental retardation; however, he was described as progressing successfully in the seventh grade of school as of the trial herein.

(6) The property where plaintiff and Corey live on Quarry Hill Road in Newville contains a three-bedroom modular home, a 24-by-35-foot, single-story, vinyl-sided, two-car garage, a partially completed 17-by-42-foot, concrete block/wood building, with a loft, attached to the garage, and an outdoor, 10-by- 10-foot, crushed-stone parking area. Plaintiff purchased the land in 1985 in her own name, had the modular home constructed in 1986, and has lived there since then. The garage was constructed in 1994, and the block building was under construction by 1996. The property is worth about $137,000 and is subject to a mortgage.

(7) In November of 1992, defendant commenced residence in the basement of the modular home, and helped construct the two-car garage on the premises. He later moved into one of the bedrooms.

(8) At about the same time that defendant began residing at plaintiff’s property, plaintiff became a foster parent for a child named Alex, who had been bom on October 24, 1992.

(9) In 1996, defendant adopted plaintiff’s foster child Alex. Plaintiff, however, was the primary caretaker for Alex.

(10) While he lived in plaintiff’s home, defendant paid for his room and board; after adopting Alex, he also paid for Alex’s room and board; by June of 1998, defendant was paying plaintiff $500 every two weeks.

(11) Plaintiff trusted defendant and felt that their relationship was a good one.

(12) In May of 1998, plaintiff was diagnosed with cancer, which she believed to be fast-spreading and terminal.

(13) Plaintiff was concerned as to the future of Corey in view of her illness, and discussed this concern on several occasions with defendant.

(14) Defendant indicated to plaintiff that if something happened to her he would feel obligated to take care of Corey.

(15) In this regard, defendant suggested to plaintiff that defendant’s name be placed on the deed to the property. According to testimony of plaintiff, which the court finds credible:

“[Defendant] told [plaintiff] that he had talked to a lot of people, and he was advised that [plaintiff] should put his name on the deed [to the Quarry Hill Road property] now so he wouldn’t have a hard time getting things settled, and he could take care of the boys [i.e., Corey and Alex] if something happened and stay there.”

(16) On June 2, 1998, prior to surgery for the cancer, plaintiff executed a will containing, inter alia, the following statement:

“Any money due me from Allstate Insurance Company from the settlement of my accident case and all other money remaining after my expenses have been paid shall be divided equally between my four children. . . . Any money passing to my son Corey shall be held in trust by [defendant] Louis [S. Biscuit Jr.,] who, as his guardian has promised that he will care for Corey as long as he possibly can and will use these funds and the social security benefits to provide for Corey.”

(17) On the same date, June 2,1998, plaintiff also executed, as grantor, a deed to the Quarry Hill Road property to herself and defendant, as grantees, reserving to herself a life estate and quitclaiming the balance of her interest in the property to defendant.

(18) The deed and will were prepared by plaintiff’s attorney.

(19) The deed contains no mention of the parties’ understanding as to the purpose of the transfer.

(20) The deed was recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, on June 4, 1998.

(21) By virtue of the relationship of parent and child, the trust which plaintiff had developed in defendant, and the known exigencies of plaintiff’s situation in terms of her expected death in the near future and the need to provide for defendant’s severely handicapped brother, a confidential relationship existed between plaintiff and defendant with respect to this transaction.

(22) Plaintiff underwent surgery for her cancerous condition a few days later.

(23) Shortly thereafter, as plaintiff recuperated, defendant told plaintiff’s sister that as soon as plaintiff died “[Corey’s] outta here.”

(24) When confronted by plaintiff about this statement, defendant told her that he did not want Corey and could not take care of him.

(25) In fairness to defendant, it should be noted that this position was prompted by defendant’s realization that caring for Corey would be a full-time job and would necessitate his leaving his employment.

(26) In testimony at the trial in this case, defendant indicated that he does not intend to care for Corey after plaintiff’s death.

(27) After plaintiff’s conveyance of the remainder interest in the property to defendant and following her surgery, defendant’s attitude toward plaintiff changed, in that he became more distant and acted as if “he didn’t want [her] around.”

(28) Defendant basically stopped giving money to plaintiff and instead paid expenses related to the property, such as mortgage payments, directly to the obligees.

(29) As it developed, the severity of plaintiff’s condition had been misapprehended and her health is presently monitored by way of periodic CAT scans and blood tests.

(30) During the 16 months following plaintiff’s surgery in June of 1998, until September of 1999, defendant continued to reside with plaintiff upon the property, and made mortgage payments on the property, in the amount of $7,278.50, and other payments benefiting the property, in the amount of $4,889.74, for a total of $12,168,24.

(31) In June of 1999, a woman who would later become defendant’s wife joined defendant in residence on the property, with her two children.

(32) In September of 1999, defendant approached plaintiff with a suggestion that she and Corey live elsewhere. According to her testimony, which the court finds credible:

“He just came in one — the night after he returned off the road, and he says, two families can’t live in the same house. I said, well, I realize that. And he says, I’ve been up two nights trying to figure out how to build you a house. I says, I don’t need a house. I says, if you want to build a house, build one for your family, if you’re having one.”

(33) The following day, defendant moved from the residence occupied by plaintiff to his present address.

(34) The parties have been essentially estranged since that time, and plaintiff has been paying the expenses, including the mortgage, related to the Quarry Hill Road property where she lives with Corey.

(35) The court finds that plaintiff has proven, by direct, positive, express and unambiguous evidence, that plaintiff’s conveyance of a remainder interest in her property at 60 Quarry Hill Road, Newville, Penn Township, Cumberland County, Pennsylvania, was subject to a constructive trust designed to benefit plaintiff’s son Corey A. Kidd as aforesaid and that defendant does not intend to give effect to the trust.

(36) Various items of personalty owned by defendant have been stored in the garage and block building and on the parking area of the Quarry Hill Road property.

(37) By letter dated May 19,2000, plaintiff put defendant on notice that in the absence of rental payments he would no longer be permitted to store items on the property during her life tenancy.

(38) However, when defendant appeared on the property in August 2000, he found that the lock on the garage had been changed.

(39) According to defendant, it will take about a month for him to remove the items.

(40) The court finds that plaintiff has not sustained her burden of proving an obligation on the part of defendant to pay rental to her for past storage of personalty.

(41) The evidence presented also did not support defendant’s contention in his counterclaim that plaintiff had sold any of his personalty.

DISCUSSION

Statement of law. Pennsylvania’s rationale for the constructive trust doctrine has been expressed by the Superior Court as follows:

“The Supreme Court has said that a constructive trust ‘is not really a trust at all but rather an equitable remedy.’ ... As such, it ‘is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.’ ... A constructive trust may arise ‘even though the acquisition of property was not wrongful and the defendant’s intention was not malign. Our courts focus not on intention, but on the result of unjust enrichment.’” Gee v. Eberle, 279 Pa. Super. 101, 112, 420 A.2d 1050, 1056 (1980) (citations omitted); see Hercules v. Jones, 415 Pa. Super. 449, 453-54, 609 A.2d 837, 839-40 (1992).
“Additionally, it should be noted that a constructive trust for realty can be based upon oral evidence because statutory law specifically exempts trusts arising by ‘implication or construction of law’ from the statute of frauds.” Friday v. Friday, 311 Pa. Super. 17, 21, 457 A.2d 91, 93 (1983) (quoting Act of April 22, 1856, P.L. 532, §4, 33 P.S. §2 (1967) (citing Truver v. Kennedy, 425 Pa. 294, 229 A.2d 468 (1967); Silver v. Silver, 421 Pa. 533, 219 A.2d 659 (1966)).

Two grounds for imposition of a constructive trust have been discussed by the Pennsylvania Superior Court in Kohr v. Kohr, 271 Pa. Super. 321, 413 A.2d 687 (1979):

“In accordance with the case law of this Commonwealth, a constructive trust may be decreed under two different theories. . . . [First,] a constructive trust arises if a transferee conveys property to another as a result of ‘fraud, duress, undue influence or mistake, or . . . the transferee at the time of the transfer was in a confidential relation to the transferor . . . .’ [and] the fraud, duress, undue influence or abuse of a confidential relationship [has been] accompanied by an actual promise by the transferee to hold the property in trust and a reliance upon that promise by the transferor....
“[Second, a] constructive trust may arise ‘[w]here a person holding title to property is subject to an equitable duty to convey it to another on the grounds that he would be unjustly enriched if he were permitted to retain it____’ [T]his theory does not require an express promise to hold property in trust. Rather, ‘[t]he imposition of a constructive trust is an equitable remedy designed to prevent unjust enrichment.’”Id. at 328-29, 413 A.2d at 690-91. (citations omitted) (emphasis added)

The existence of a confidential relationship is generally “a question of fact to be determined by no [in]flexible rule but by a weighing of the particular factors present in [the] case.” DePaul v. DePaul, 287 Pa. Super. 244, 248, 429 A.2d 1192, 1194 (1981) (quoting Stauffer v. Stauffer, 465 Pa. 558, 569-70, 351 A.2d 236 (1976)). “The existence of a close family relationship . . . does not per se justify recognition of a confidential relationship.” Id. at 249, 429 A.2d at 1194. However, it is a factor to be considered among the totality of circumstances. See Silver v. Silver, 421 Pa. 533, 537, 219 A.2d 659, 662 (1966); see generally, Friday, 311 Pa. Super. 17, 457 A.2d 91. In general, a confidential relationship may be found where “one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on the one side, or weakness, dependence or justifiable trust, on the other.” DePaul, 287 Pa. Super. at 249, 429 A.2d at 1194 (quoting Moreland v. Metrovich, 249 Pa. Super. 88, 95, 375 A.2d 772 (1977)).

Thus, it has been held that a constructive trust may be imposed, in an appropriate case, upon realty transferred by one family member to another upon an oral understanding that the property would be maintained as a home for the children of the family and would inure to their benefit. See Friday, 311 Pa. Super. 17, 457 A.2d 91.

As a general rule, “oral trusts [in land] are viewed with disfavor by the law, [and] a proponent of such trust is under a heavy burden of proving the same by evidence which is direct, positive, express and unambiguous----” Brunier v. Stanert, 369 Pa. 178, 183, 85 A.2d 130, 133 (1952). One effect, however, of the existence of a confidential relationship between the parties is a shift in the burden of proof to “the party benefiting from the transaction [to show] that he took no unfair advantage of his relationship with the other.” DePaul, 287 Pa. Super. at 249, 429 A.2d at 1194 (quoting Stauffer, 465 Pa. at 569-70, 351 A.2d at 236).

Where a court of equity finds that a property is subject to a constructive trust, it is necessarily vested with broad powers in terms of the remedy to be decreed. “A court of equity in decreeing a constructive trust is bound by no unyielding formula. The equity of the transaction must shape the measure of relief.” Chambers v. Chambers, 406 Pa. 50, 55, 176 A.2d 673, 675 (1962) (quoting Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378, 380-81 (1979)). In the context of a constructive trust allegedly arising out of a confidential relationship, the Superior Court has quoted with approval the following commentary:

“If the theory of constructive trusts arising out of violation of confidential relations is that the trusted grantee is forbidden to acquire any selfish profit or benefit during his administration, and not hold all such benefits for the grantee, then where A, who is in a confidential relation with B, conveys to B an oral trust for C, and B refuses to perform, the property should be returned by B to A ....” Friday, 311 Pa. Super, at 21-22, 457 A.2d at 93 (quoting Bogert, Trusts and Trustees §496 (2nd ed. rev. 1978)). (emphasis omitted)

Application of law to facts. In the present case, a number of circumstances militated in favor of finding that the Quarry Hill Road property sub judice was subject to a constructive trust. These included the close family relationship that existed prior to the conveyance from plaintiff to defendant, the dependence of plaintiff upon defendant created by exigencies regarding the (assumed) imminence of her death and Corey’s special needs, defendant’s prompting of plaintiff to donate an interest in the property to him, and defendant’s express promise to use the conveyance to take care of Corey. A reconveyance of defendant’s interest to plaintiff is an appropriate remedy for defendant’s decision not to utilize the property in accordance with the parties’ understanding, to correct the inequity of a promise unkept under the circumstances and to prevent unjust enrichment.

On the other hand, the remedy should not result in a windfall to plaintiff or a forfeiture on the part of defendant, with respect to payments made by defendant for the benefit of the property in reliance upon its conveyance to him. Based upon the foregoing findings of fact and principles of law, the following conclusions of law and decree nisi will be made and entered:

CONCLUSIONS OF LAW

(1) The court has jurisdiction over the parties and subject matter of this litigation.

(2) A constructive trust should be impressed upon the property in which plaintiff conveyed a remainder interest to defendant at 60 Quarry Hill Road, Newville, Penn Township, Cumberland County, Pennsylvania, by deed dated June 2, 1998, in accordance with the above discussion.

(3) Defendant is entitled to reimbursement by plaintiff for expenditures directly benefiting the property following its conveyance to him and made in reliance upon the conveyance.

(4) Defendant is entitled to a reasonable period within which to remove his personalty from the property.

(5) Neither party is entitled to any additional relief.

DECREE NISI

And now, December 28, 2001, upon consideration of plaintiff’s amended complaint and defendant’s counterclaim in the above-captioned matter, following a trial held on June 4, 2001, and August 23, 2001, and for the reasons stated in the accompanying opinion, it is ordered, adjudged and decreed as follows:

(1) In accordance with the accompanying opinion, a constructive trust is impressed upon defendant’s remainder interest in the property located at 60 Quarry Hill Road, Newville, Penn Township, Cumberland County, Pennsylvania, which is the subject of a deed from plaintiff to plaintiff and defendant dated June 2,1998, and recorded in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in deed book 178, page 723.

(2) Within 60 days of the date of a final decree herein, defendant shall reconvey by quitclaim deed his remainder interest in the said property to plaintiff; provided, that plaintiff shall have paid to defendant the sum of $12,168.24 within that period.

(3) Plaintiff shall permit defendant, his agents, servants and representatives, to remove his personalty from the property during a period of 30 days immediately following the date of a final decree herein.

(4) All other relief requested by either party is denied.

This decree nisi shall automatically become a final decree without further order of court in the absence of a timely motion for post-trial relief pursuant to Pa.R.C.P. 227.1.

      . See plaintiff’s first amended complaint, filed January 11, 2001 (Count I).

      . See id. (Count II).

      . Defendant’s answer, new matter and counterclaim, filed February 8, 2001 (counterclaim).

      . N.T. 3-4, trial, June 4,2001, and August 23,2001; see plaintiff’s exhibit 4, trial, June 4, 2001, and August 23, 2001.

      . N.T. 81-82.

      . N.T. 4. Plaintiff’s first husband, the natural father of defendant, died in 1979. N.T. 5. Plaintiff married her second husband, James Kidd, in 1988. N.T. 5-6. They were later divorced. N.T. 3.

      . N.T. 9; see plaintiff’s exhibit 3, paragraph 2B. Corey was born on October 26, 1987. N.T. 9. Plaintiff is also the natural mother of an adult daughter, who lives in New Jersey, and the adoptive mother of an adult son, who lives in Florida. N.T. 4-5, 12.

      . N.T. 7-8.

      . N.T. 8-10.

      . N.T. 3-4, 9.

      . N.T. 10-11. He is in a learning support class. N.T. 11.

      . N.T. 4, 16, 65-68.

      . Plaintiff’s exhibit 4.

      . N.T. 4.

      . N.T. 4.

      . N.T. 68-69.

      . Plaintiff’s exhibit 6.

      . See N.T. 50-51. The balance due on the mortgage does not appear to be of record.

      . N.T. 13-16.

      . N.T. 17, 82, 99.

      . N.T. 20.

      . N.T. 20, 101.

      . N.T. 20-23.

      . N.T. 21.

      . N.T. 48-49; defendant’s exhibit 1.

      . See N.T. 23.

      . N.T. 24.

      . N.T. 26.

      . N.T. 106.

      . N.T. 28.

      . Plaintiff’s exhibit 3, paragraph 3B.

      . Plaintiff’s exhibit 4. The evidence does not suggest that monetary consideration was involved for the transfer. The deed recites a nominal figure of $1. Id.

      . See N.T. 33; plaintiff’s exhibits 3-4.

      . See plaintiff’s exhibit 4.

      . Plaintiff’s exhibit 4; it was recorded in deed book 178, page 723.

      . See N.T. 30.

      . N.T. 124.

      . N.T. 124; see also, N.T. 33, 123, 125.

      . N.T. 106-107.

      . N.T. 117-18. Defendant’s testimony was to the effect that he had made this position clear to plaintiff prior to her conveyance of the property to him and that she had proceeded with the transfer anyway. N.T. 117-20.

      . N.T. 32.

      . N.T. 32; see defendant’s exhibit 1.

      . See defendant’s exhibit 2.

      . N.T. 24.

      . N.T. 33; see N.T. 35-36.

      . Defendant’s exhibit 2.

      . N.T. 92-93; defendant’s exhibit 2.

      . N.T. 35, 37, 89.

      . N.T. 36.

      . N.T. 35-36, 51, 89.

      . N.T. 38-39.

      . See N.T. 51.

      . N.T. 13, 95.

      . Plaintiff’s exhibit 8.

      . N.T. 95.

      . N.T. 96.

      . “[OJnce a court of equity assumes jurisdiction [in a constructive trust case], it may fashion whatever relief is appropriate. . . .” Friday, 311 Pa. Super, at 22-23, 457 A.2d at 93 (Beck, J., concurring and dissenting).


author: NEALON, J.,

text:
    Housing & Redevelopment Insurance Exchange v. Lycoming County Housing Authority

      C.P. of Lackawanna County,
    no. 99-CV-6060.

      Eugene F. Hickey II, for plaintiff.

      John R. Bonner and Joseph E Orso III, for defendants LCHA, Pepperman and Montgomery.

      Janine C. Gismondi and Katherine M. Allen, for defendant Cipriani.
    December 31, 2001
   NEALON, J.,

Defendant Lycoming County Housing Authority, its community counsel, defendant Janice Pepperman; deputy executive director, defendant Elizabeth Montgomery; and former director of operations, defendant Nicholas Cipriani, have filed a case dispositive motion in this declaratory judgment action which has been instituted by plaintiff, Housing and Redevelopment Insurance Exchange, regarding insurance coverage for Cipriani’s claims against LCHA, Pepperman and Montgomery in Cipriani v. Housing Authority of Lycoming County, no. 4:99-CV-980 (M.D. Pa.). Since the definition of a “wrongful act” in HARIE’s policy does not preclude coverage for civil rights claims, constitutional torts or retaliatory firings, HARIE has a duty to defend and indemnify the LCHA, Pepperman and Montgomery against Cipriani’s claim that his discharge contravened the First Amendment, due process clause and Pennsylvania Whistleblower Law. However, inasmuch as the HARIE policy expressly excludes coverage for defamation and actions based upon amendments to the Employment Retirement Income Security Act of 1974 (ERISA), HARIE has no obligation to defend or indemnify the LCHA, Pepperman or Montgomery in connection with Cipriani’s claims for defamation and violations of the Comprehensive Omnibus Budget Reconciliation Act of 1985.

I. PROCEDURAL HISTORY

On June 14,1999, Cipriani commenced a federal lawsuit against LCHA, Pepperman and Montgomery asserting claims under (1) 42 U.S.C. §§1983 and 1985 for alleged violation of his First Amendment rights and denial of his right to substantive and procedural due process, (2) the Pennsylvania Whistleblower Law, 43 P.S. §1421 et seq., (3) the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §621 et seq., (4) the Pennsylvania Human Relations Act (PHRA), 43 P.S. §951 et seq., (5) the Pennsylvania Civil Service Act, 71 P.S. §741.1 et seq., and (6) the Comprehensive Omnibus Budget Reconciliation Act of 1985, P.L. 99-272, Title X. (See plaintiff HARIE’s complaint, ¶¶64-93.) At that time, LCHA was insured by HARIE pursuant to a “directors and officers” insurance policy (effective 9/7/98-9/7/99). (Id., ¶11.) Upon its receipt of Cipriani’s federal complaint from the LCHA, HARIE forwarded a letter to the LCHA on July 15, 1999, denying coverage and declining to defend or indemnify the LCHA, Pepperman and Montgomery in connection with Cipriani’s lawsuit. (Id., exhibit C.)

HARIE did not provide its prospective insureds with a defense subject to a reservation of rights, compare Britamco Underwriters Inc. v. Grzeskiewicz, 433 Pa. Super. 55, 57, 639 A.2d 1208, 1209 (1994), app. discontinued, 538 Pa. 639, 647 A.2d 894 (1994), nor did it retain counsel to defend those parties in the federal action pending a judicial determination of its duty to defend or indemnify. Compare HARIE v. Housing Authority of Chester Cty., 102 Lacka. Jur. 244, 246 (2001) (HARIE hired counsel to defend HACC in an employment discrimination suit and thereafter issued a denial of coverage letter based upon the “wrongful acts” definition of its policy). Instead, it chose to file the instant declaratory judgment action several months later on December 3,1999, seeking a judicial declaration that it has no duty to defend or indemnify the LCHA, Pepperman or Montgomery in conjunction with Cipriani’s claims. In its declaratory judgment complaint, HARIE contends that its policy only provides coverage for a “wrongful act” by the LCHA or its directors and officers and that its policy’s definition of the term “wrongful act” does not include Cipriani’s First Amendment, due process and Whistleblower Law claims. HARIE further maintains that coverage for defamation and COBRA violations is expressly excluded under the policy. (See HARIE’s complaint, ¶¶12-15, 94-107.)

. LCHA, Pepperman and Montgomery filed a motion for summary judgment in the federal court action, and by order dated September 22, 2000, U.S. District Judge James F. McClure Jr., dismissed Cipriani’s substantive due process claim and his count based upon the Pennsylvania Civil Service Act, but denied the summary judgment motion in all other respects. (See docket sheet for no. 4:99-CV~980 (M.D. Pa.), entry no. 55.) On September 25, 2000, the LCHA, Pepperman and Montgomery filed a motion for judgment on the pleadings in the declaratory judgment action seeking a judicial determination that HARIE is bound to defend and indemnify them, and on October 30,2000, the court administrator scheduled that motion for oral argument on March 15, 2001. In the interim, Judge McClure granted Cipriani’s request to amend his complaint in the federal action, and on November 7,2000, Cipriani filed an amended complaint which withdrew his age discrimination count, but continued to advance claims predicated upon the First Amendment (Count I), the due process clause (Count II), the Whistleblower Law (Count III), the Civil Service Act (Count IV), defamation (Count V), and COBRA (Count VI). (Id., no. 65, ¶¶60-93.) Cipriani subsequently abandoned his Civil Service Act theory as per Judge McClure’s earlier ruling on September 22, 2000.

Cipriani’s First Amendment (Count I) and defamation (Count V) claims were litigated before a jury beginning on December 5, 2000, and on December 18, 2000, the jury returned a verdict in favor of Cipriani and against the LCHA, Pepperman and Montgomery with respect to the First Amendment claim and awarded $875,000 in damages. As to the defamation count, the jury exculpated Montgomery but found Pepperman liable and awarded $25,000 in damages. Cipriani’s liability theories premised upon procedural due process (Count II), the Whistle-blower Law (Count III) and COBRA (Count VI) were taken under advisement by the district court and the entry of judgment on the jury verdict was deferred pending a ruling on those non jury issues. (Id., no. 101.)

On February 2,2001, Judge McClure issued a memorandum and order finding in favor of Cipriani and against the LCHA, Pepperman and Montgomery with regard to Cipriani’s procedural due process claim (Count II), but awarded no damages beyond the jury award. Judge McClure also ruled in favor of Cipriani and against the LCHA as to the COBRA claim (Count VI) but likewise awarded no damages. Last, Judge McClure found in favor of the LCHA, Pepperman and Montgomery relative to the Whistleblower Law theory. The entry of a final judgment on the jury and non jury verdicts was postponed until the federal court had disposed of Cipriani’s petition for counsel fees and expenses pursuant to 42 U.S.C. §1988 and 29 U.S.C. §1132(g)(l). (Id., no. 107.)

On February 12, 2001, the LCHA, Pepperman and Montgomery filed a motion for judgment n.o.v. under Fed.R.C.P. 50(b), or in the alternative, for a new trial pursuant to Fed.R.C.P. 59(a). (Id., no. 109.) On February 16, 2001, Cipriani presented a motion for counsel fees and expenses together with a bill of taxable costs. (Id., nos. 110-12.) Cipriani later filed a motion for entry of judgment on the federal jury and non jury awards. (Id., no. 125.)

On March 15, 2001, oral argument was conducted on the defense motion for judgment on the pleadings in this declaratory judgment action, at the conclusion of which the parties were granted leave of court to file additional memoranda of law regarding an issue that was first raised by HARIE in its reply brief on the eve of oral argument. On April 16, 2001, HARIE filed a supplemental brief asserting yet another new issue and the LCHA, Pepper-man and Montgomery requested an opportunity to submit responsive briefs addressing the same. By order dated April 23, 2001, the parties were directed to file their supplemental briefs by May 7, 2001, at which time the record would be closed for a decision. However, the parties’ submissions were incomplete with respect to whether endorsement no. XD0-1 excludes coverage for claims based upon conduct “as provided for in the Directors’ Liability Act, 42 P.S. §8361 et seq., provided the named insureds avail themselves of the protection as provided in the Act by amending their bylaws.”

Thus, by order dated June 5, 2001, the parties were directed to conduct and file limited discovery “relative to the defendants’ alleged status as directors and/or members of the LCHA’s board of directors vis-a-vis the applicability of endorsement no. XD0-1” and to thereafter request “additional oral argument with regard to endorsement no. XD0-1” or agree to submit the matter on briefs without the need for further argument. In addition, the motion for judgment on the pleadings was transformed into a motion for summary judgment since the declaratory judgment ruling would “not be confined to the pleadings and any documents attached thereto” and would include consideration of the parties’ supplemental discovery materials. See HARIE v. LCHA, no. 99-CV-6060, Nealon, J., at pp. 4-5 (Lacka. Cty. June 5, 2001).

On June 22, 2001, Judge McClure entered judgment consistent with the jury verdict and district court rulings. (See federal docket sheet, supra, nos. 140-41.) Via memorandum and order dated June 26, 2001, Judge McClure partially granted Cipriani’s motion for counsel fees and expenses and directed the LCHA, Pepperman and Montgomery to pay reasonable attorney’s fees in the amount of $180,258 and expenses totaling $6,031.82 in accordance with 42 U.S.C. §1988 and 29 U.S.C. §1132(g)(l). Cipriani also sought to recover $5,604.45 for fees and costs associated with his defense of HARIE’s declaratory judgment action and argued that those expenses resulted in work product which was utilized in the federal litigation and that the declaratory judgment proceeding was “inextricably linked” to the issues raised in the federal case. However, Judge McClure concluded that Cipriani had not satisfied his burden of proof in that respect and, therefore, he denied the request for fees related to the declaratory judgment proceeding. See Cipriani v. LCHA, no. 4:CV-99-980, McClure, J., atpp. 25-27 (M.D. Pa. June 26, 2001).

On June 29, 2001, Cipriani filed a motion for reconsideration of Judge McClure’s ruling in favor of the defense with respect to the Whistleblower Law claim, and on July 6, 2001, Cipriani submitted a supplemental motion for counsel fees and expenses. (See federal docket sheet, supra, no. 146-48, 150-52.) On December 7,2001, a conference was conducted with counsel in the declaratory judgment case at which time the parties agreed to submit the instant motion for summary judgment without the need for additional oral argument. One week later, Judge McClure filed a memorandum and order denying Cipriani’s motion for reconsideration relative to his Whistleblower Law claim and granting in part and denying in part the defense motion for judgment n.o.v. and/or a new trial. (Id., no. 168.) Specifically, Judge McClure granted judgment n.o.v. as to two elements of Cipriani’s First Amendment claim, but denied the motion with regard to the remaining aspect of his constitutional tort claim and thereby allowed the $875,000 award to stand. See Cipriani v. LCHA, no. 4:CV-99-980, McClure, J. at pp. 23-30, 42 (M.D. Pa. December 14, 2001). Judge McClure rejected the motion for judgment n.o.v. in all other respects and conditionally denied the defense motion for a new trial on Cipriani’s First Amendment claim. (Id. at pp. 10-23, 30-37.) Judge McClure contemporaneously issued a separate order awarding Cipriani $13,170 in supplemental counsel fees and $1,511.21 in additional expenses. (See federal docket sheet, supra, at no. 169.) With the benefit of this relevant procedural chronology, we will consider the merits of the parties’ declaratory judgment arguments.

II. FACTUAL BACKGROUND

To properly address the coverage issues which have been raised by the parties, the substance of Cipriani’s allegations against the LCHA, Pepperman and Montgomery must be examined. Cipriani averred that he began his employment with the LCHA in 1979 and was ultimately promoted to director of operations in 1994. During the course of his employment, he reportedly discovered that: (1) LCHA “employees who were in a position to influence the award of [LCHA] contracts had solicited authority contractors to make contributions to organizations from which the employees derived personal benefit”; (2) a LCHA “managerial employee purchased three refrigerators owned by the [LCHA] at nominal cost for her personal use”; (3) the LCHA unwittingly hired Montgomery’s brother-in-law, Dean Severson, since Montgomery had “failed to disclose their relationship prior to his hiring” in accordance with LCHA regulations; (4) the LCHA “entered into business dealings with an entity that was partially owned by a [LCHA] board member”; (5) “an upper management employee made repeated inappropriate comments of a sexual nature to subordinate employees”; (6) the LCHA “reported certain financial information to the public, its board of commissioners and/or regulatory agencies” which may have been inaccurate; (7) the LCHA contravened the applicable law “with respect to evictions, rent collections and inspections” of residents; and (8) the LCHA’s employment practices were not in compliance with the applicable law. According to Cipriani, his superiors became upset with him when he brought these matters to their attention. (See Cipriani’s amended complaint, ¶¶4, 18-26.)

Cipriani further asserted that he received a directive from Pepperman that the Operations Department staff was to be reduced by two employees and that after weighing the criteria set forth in the LCHA’s personnel policy, Cipriani recommended that two employees be laid off, one of whom was Montgomery’s brother-in-law, Severson. However, “Montgomery and Pepperman reacted negatively to [Cipriani’s] recommendation and selected two different individuals for layoff.” (Id., ¶¶31-35.) Additionally, during December 1998, Cipriani and employees of the Operations Department held voluntary meetings “prior to the start of work hours to discuss” their concerns regarding the impending restructuring of their department and other employment-related issues. “One of the employees who attended the meetings suggested that interested employees meet with an attorney to obtain advice regarding the legal validity of their concerns” and that particular “employees scheduled a meeting with an attorney to take place immediately after working hours on December 17, 1998.” On the evening of December 16, 1998, Severson advised his sister-in-law, Montgomery, “about the pre-work meetings, the attorney meeting scheduled for December 17, 1998, and the employees’ intention, consistent with the personnel policy, to present work-related grievances and concerns to the [LCHA’s] board of commissioners.” (Id., ¶¶37-42.)

In the early afternoon of December 17,1998, Cipriani was summoned to Pepperman’s office where Pepperman and Montgomery “questioned him about the pre-work meetings and the plan to consult with an attorney” and thereafter “suspended [Cipriani’s] employment with pay.” On that same afternoon, Pepperman and Montgomery met with the entire Operations Department to inform them of Cipriani’s suspension and reportedly “stated that [Cipriani] had ‘lied to us,’ that ‘there must be something wrong with him,’ that he was attempting to organize a ‘walkout’ and a takeover of the Housing Authority....” Furthermore, on January 12, 1999, Cipriani “received an undated letter advising him that his employment was terminated effective January 14, 1999.” (Id., ¶¶43-46.)

Following his termination, Cipriani’s job duties as operations director were assumed by Dean Severson. Moreover, subsequent to his discharge, Cipriani was not advised by the LCHA “until March 11,1999, of his right under COBRA to elect continued health insurance coverage under the [LCHA’s] group plan.” Although the LCHA advised Cipriani “on March 26,1999, that, pending his election, his health insurance coverage had been reinstated,” Cipriani’s coverage was not reinstated and he “and his dependents suffered a loss of health insurance coverage.” (Id., ¶¶51, 54-59.)

Cipriani alleged that his termination violated his civil rights since it constituted retaliation against him for exercising his First Amendment rights and deprived him of a liberty interest without adequate procedural due process (i.e., notice and an opportunity to challenge the charges being made against him prior to his discharge). Cipriani further asserted that the remarks by Pepperman and Montgomery defamed him and that his termination in retaliation for reporting malfeasance by the LCHA contravened the Whistleblower Law. Finally, Cipriani maintained that the LCHA’s actions with respect to his post-employment health insurance coverage violated the dictates of COBRA. (Id., ¶¶61-93.)

As stated above, the federal jury found that Cipriani’s expressed intent to seek legal advice, objections concerning the employment of Dean Severson and complaints regarding Montgomery’s solicitation of a contribution from an LCHA contractor for her son’s hockey team were substantial or motivating factors in the decision to terminate Cipriani and thereby awarded $875,000 in damages. The jury further awarded $25,000 to Cipriani based upon its verdict that Pepperman had defamed him.

In his post-trial ruling, Judge McClure granted judgment as a matter of law in favor of the LCHA, Pepperman and Montgomery as to Cipriani’s First Amendment claims regarding the hiring of Severson and Montgomery’s solicitation of a LCHA contractor. In that regard, Judge McClure concluded that those “complaints do not rise to the level of speech touching on matters of public concern” so as to constitute protected speech and “were erroneously submitted to the jury as part of [Cipriani’s] First Amendment claim.” See Cipriani, supra at pp. 26,28. However, the district court further reasoned that Cipriani’s “intent to seek legal counsel was protected under the First Amendment and [that] the court did not err in submitting the issue to the jury.” Id. at p. 30. Judge McClure also declined to reverse his non jury verdicts in favor of Cipriani on the procedural due process and COBRA claims or his defense verdict on the Whistleblower Law count. Id. at pp. 12-23, 30-42.

In this declaratory judgment litigation, HARIE contends that Cipriani’s constitutional and Whistleblower Law claims are not covered by the terms of the policy. The insuring clause of the HARIE policy affords coverage for the LCHA, its directors and officers “individually or collectively, for a wrongful act.” (See plaintiff’s response to defendants’ supplemental brief, exhibit A, p. 1 of 8, fl(a), (b).) The term “wrongful act” is defined by the policy as “meaning] any actual or alleged error or misstatement or misleading statement or act or omission or neglect or breach of duty by the directors and officers in the discharge of their duties, individually or collectively, or any matter claimed against them solely by reason of their being directors or officers of the authority.” (Id. at p. 2, |3(c).) HARIE posits that the foregoing language restricts its coverage to purely negligent acts and does not encompass constitutional torts or Whistleblower Law claims which may involve intentional conduct that is not insurable under the policy. See e.g., Crawford-El v. Britton, 523 U.S. 574, 593 (1998) (noting that more than proof of an improper motive is needed to establish a constitutional violation in a First Amendment retaliation claim); Daniels v. Williams, 474 U.S. 327, 330-31, 334 (1986) (mere negligence or lack of due care by a government official is insufficient to implicate the due process clause of the Fourteenth Amendment). But, see O’Rourke v. Commonwealth, 566 Pa. 161, 175-78, 778 A.2d 1194, 1202-1204 (2001) (reasoning that the Whistleblower Law is not designed to punish an employer for harboring bad motives, but is chiefly a remedial measure intended to compel the government’s compliance with the law by protecting those who inform authorities of wrongdoing).

HARIE further argues that Cipriani’s cause of action for defamation is precluded by section 4(a)(1) of the policy which excludes coverage “for libel or slander,” as well as by endorsement no. FD-1 which states that “[i]t is understood and agreed that the insurers shall not be liable to make payment for loss in connection with any claim arising out of circumstances involving . . . libel, slander, [or] defamation of character... .” (See HARIE, exhibit A, pp. 3, 12.) HARIE likewise submits that Cipriani’s COBRA claim is not covered by the policy due to section 4(b)(5) which excludes claims “based upon the Employee Retirement Income Security Act of 1974, Public Law 93-406, commonly referred to as the Pension Reform Act of 1974, and amendments thereto, or similar provisions of any federal, state or local statutory law or common law.” (Id. atp. 4.) (emphasis added) Last, HARIE advances an omnibus argument that all of Cipriani’s claims are excluded from coverage by endorsement no. XDO-1 concerning certain conduct under the Directors’ Liability Act, 42 PS. §8361 et seq.

LCHA, Pepperman, Montgomery and Cipriani counter that HARIE’s policy does apply to constitutional torts under section 1983 since those claims do not necessarily implicate intentional conduct. (See defendant Cipriani’s reply brief, p. 3.) The insureds further note that the federal jury verdict was not predicated upon willful, malicious or intentional conduct inasmuch as Judge McClure had removed the issue of punitive damages from the jury’s consideration. (See defendant LCHA’s reply brief, p. 2.) Regardless of the type of conduct at issue, the insureds alternatively submit that the policy’s definition of a “wrongful act” is broad enough to encompass civil rights claims under 42 U.S.C. §1983. See Independent School District No. 697 v. St. Paul Fire & Marine Insurance Co., 515 N.W.2d 576 (Minn. 1994) (policy providing coverage for wrongful acts based on error or omission, negligence, breach of duty, misstatement or misleading statement afforded coverage for employee’s claim of intentional discrimination); New Madrid County Reorganized School District v. Continental Casualty Co., 904 F.2d 1236 (8th Cir. 1990) (applying Missouri law). Additionally, the insureds maintain that endorsement no. XDO-1 is inapplicable since it applies only to directors and officers of the LCHA Board and Pepperman and Montgomery were never board members. (See defendant Cipriani’s second supplemental reply brief, pp. 4-6.) We will consider the parties’ arguments seriatim.

III. DISCUSSION

(A) Standard of Review

Under the Declaratory Judgments Act, 42 Pa.C.S. §7531 et seq., parties may obtain a declaration of their existing legal rights, duties, or status where the declaration will aid in the determination of a genuine, justiciable controversy. See e.g., State Farm Fire & Casualty Co. v. Craley ex rel. Craley, 784 A.2d 781, 785-86 (Pa. Super. 2001). The expressed purpose of the Declaratory Judgments Act “is to afford relief from uncertainty and insecurity with respect to legal rights, status and other relations.” Robson v. EMC Insurance Companies, 785 A.2d 507, 509 (Pa. Super. 2001). For that reason, an action for declaratory judgment is particularly appropriate in construing contracts of insurance in order to determine whether an insurer is obligated to defend and/or indemnify one claiming coverage under the policy. Liberty Mutual Insurance Co. v. S.G.S. Co., 456 Pa. 94, 95-99, 318 A.2d 906, 907-908 (1974); Warner v. Continental/CNA Insurance Companies, 455 Pa. Super. 295, 301, 688 A.2d 177, 180 (1996), app. denied, 548 Pa. 660, 698 A.2d 68 (1997).

LCHA, Pepperman and Montgomery maintain that it should be declared as a matter of law that HARIE has a duty to defend and indemnify them under the terms of the HARIE policy. It is well-settled that the proper construction of an insurance policy is an issue which may be resolved as a matter of law in a declaratory judgment action. Redevelopment Authority of Cambria County v. International Insurance Co., 454 Pa. Super. 374, 383, 685 A.2d 581, 585-86 (1996), app. denied, 548 Pa. 649, 695 A.2d 787 (1997); Boyertown Mutual Insurance Co. v. Skias, 52 D.&C.4th 86, 91 (Berks Cty. 2001). Since the interpretation of an insurance policy presents a question of law for the court, the issue of whether a particular loss falls within the coverage of a policy may be decided in a declaratory judgment action by way of a motion for summary judgment. Bowers v. Estate of Feathers, 448 Pa. Super. 263, 268, 671 A.2d 695, 697 (1995), app. denied, 550 Pa. 696, 705 A.2d 1303 (1997); Fireman’s Fund Insurance Co. v. Empire Fire & Marine Insurance Co., 152 F. Supp.2d 687, 688 n.1 (E.D. Pa. 2001).

(B) Duties To Defend and Indemnify

HARIE’s putative duties to defend and/or indemnify the LCHA, Pepperman and Montgomery involve independent contractual obligations that are nonetheless correlated. “An insurer’s duty to defend the insured is dependent upon the derivative question of coverage . . . [and] [i]t is well-established that... an insurer must defend in any suit in which there exists actual or potential coverage.” Acceptance Insurance Co. v. Seybert, 757 A.2d 380, 382 (Pa. Super. 2000). (emphasis in original) “An insurer’s duty to defend is determined by the allegations set forth in the underlying complaint.” Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 611, 735 A.2d 100, 109 (1999); Municipality of Mount Lebanon v. Reliance Insurance Co., 778 A.2d 1228, 1235 (Pa. Super. 2001). In that vein, the court must compare the allegations in the complaint with the provisions of the insurance contract and determine whether, if the complaint allegations are proven, the insurer would have a duty to indemnify the insured. Keystone Spray Equipment Inc. v. Regis Insurance Co., 767 A.2d 572, 574 (Pa. Super. 2001); Seybert, supra. If the underlying complaint “alleges facts which, if true, would actually or potentially bring the claims within the policy coverage,” the insurer must defend its insured. Board of Public Education of School District of Pittsburgh v. National Union Fire Insurance Co. of Pittsburgh, 709 A.2d 910, 913 (Pa. Super. 1998) (enbanc) (emphasis in original), app. denied, 556 Pa. 669, 727 A.2d 126 (1998).

“An insurer who refuses to defend its insured from the outset does so at its own peril.” Id. (citing Stidham v. Millvale Sportsmen’s Club, 421 Pa. Super. 548, 564, 618 A.2d 945, 953 (1992), app. denied, 536 Pa. 630, 637 A.2d 290 (1993)). Until it can be conclusively determined that a plaintiff’s claims against an insured are outside the ambit of the policy’s coverage, an insurer has an obligation to defend against all claims potentially within the scope of the policy. Municipality of Mount Lebanon, supra; Stidham, supra at 564, 618 A.2d at 953-54 (holding that “until the claim is narrowed to one patently outside the policy coverage, the insurer has a duty to defend.”). Accord Key Handling Systems Inc. v. W.C.A.B. (Jenkins), 729 A.2d 109, 114-15 (Pa. Commw. 1999) (“[t]his duty to defend remains with the insurer until it is clear that the claim has been narrowed to one beyond the terms of the insurance policy.”) If an insurer breaches its duty to defend, its insured is entitled to recover the costs incurred in defending the underlying lawsuit. See Mace v. Atlantic Refining Marketing Corp., 567 Pa. 71, 785 A.2d 491, 498-99 (2001).

An insurer’s duty to indemnify is separate and distinct from its duty to defend, Key Handling Systems Inc., 729 A.2d at 116, and the duty to defend is actually broader than the duty to indemnify an insured. Board of Public Education of School District of Pittsburgh, 709 A.2d at 913; Aetna Casualty & Surety Co. v. Roe, 437 Pa. Super. 414, 421, 650 A.2d 94, 98 (1994). The more limited duty to indemnify “arises only when the insured is determined to be liable for damages within the coverage of the policy.” Fireman’s Fund Insurance Co., 152 F. Supp.2d at 688 n.6 (quoting Diamond State Insurance Co. v. Ranger Insurance Co., 47 F. Supp.2d 579, 584 (E.D. Pa. 1999)). Nevertheless, the two duties are interrelated and “an insurer’s duty to indemnify an insured follows its duty to defend that insured,” Keystone Spray Equipment Inc., 767 A.2d at 576, and “both flow from a determination that the underlying complaint triggers coverage.” USX Corp. v. Adriatic Insurance Co., 99 F. Supp.2d 593, 611 (W.D. Pa. 2000).

In making a determination regarding the duty to defend and the contingent duty to indemnify, the averments of the underlying complaint must be “liberally construed with all doubts as to whether the claims may fall within the policy coverage [being] resolved in favor of the insured.” Roman Mosaic & Tile Co. v. Aetna Casualty & Surety Co., 704 A.2d 665, 669 (Pa. Super. 1997); USX Corp., supra. Accord Western World Insurance Co. v. Reliance Insurance Co., 892 F. Supp. 659, 662 (M.D. Pa. 1995) (“[a]ny doubts regarding the insurer’s duty to defend must be resolved in favor of the insured.”). Guided by this standard of review, we will analyze the language of HARIE’s policy in the context of Cipriani’s federal claims.

(C) Ripeness of Duty To Indemnify

As a threshold matter, we must determine whether HARIE’s purported duty to indemnify the LCHA, Pepperman and Montgomery is ripe for disposition. In its supplemental brief, HARIE posits that until all appeals have been exhausted in Cipriani’s federal lawsuit, any ruling on its “duty to indemnify would be premature as this issue is not ripe for a decision.” (See HARIE’s supplemental brief, p. 2.)

HARIE’s justiciability argument may be summarily rejected. Pennsylvania decisional precedent recognizes that an insurer’s obligation to defend and indemnify an insured may be decided in a declaratory judgment proceeding prior to the conclusion of the underlying action. See Harleysville Mutual Insurance Co. v. Madison, 415 Pa. Super. 361, 366, 609 A.2d 564, 566 (1992) (“[i]f it is found that Madison fits the definition of an insured under the policy . . . then Harleysville will be required to defend him and ultimately be responsible for indemnification in the event the related suit should result in the plaintiff’s favor. Contrary to the trial court’s ruling, Harleysville[’s] rights and duties to its potential insured cannot await a determination of the negligence action.”). As the Supreme Court of Pennsylvania has reasoned:

“The question before a court in a declaratory judgment action is not whether the insurer owes indemnification in a specific amount, which would be a premature inquiry absent a full resolution of the underlying action. Instead, the question is whether the insurer has a duty to indemnify the insured in the event of liability in the underlying action. A court can answer such a question because it is within the scope of a court’s power pursuant to the Declaratory Judgments Act.” General Accident Insurance Co. of America v. Allen, 547 Pa. 693, 707, 692 A.2d 1089, 1095 (1997). (emphasis in original) Accord Redevelopment Authority of Cambria Cty. v. International Insurance Co., 457 Pa. Super. 374, 384, 685 A.2d 581, 586 (1996), app. denied, 548 Pa. 649, 695 A.2d 787 (1997). Therefore, HARIE’s duty to indemnify the LCHA, Pepperman and Montgomery against the federal judgment entered against them is ripe for a judicial declaration even though the parties’ appeals to the United States Court of Appeals for the Third Circuit have not yet been concluded.

(D) “Wrongful Act” Coverage

The goal of interpreting an insurance contract is to determine the intent of the parties as manifested by the language of the policy. Lititz Mutual Insurance Co. v. Steely, 567 Pa. 98, 785 A.2d 975 (2001); Board of Public Education of School District of Pittsburgh, 709 A.2d at 912. Where the wording of an insurance policy is clear and unambiguous, a court is required to give effect to that language. Madison Construction Co., supra at 606, 735 A.2d at 106; Municipality of Mount Lebanon, 777 A.2d at 1232. However, if a provision of a policy is ambiguous, it must be construed in favor of the insured and against the insurer as the drafter of the agreement. Madi son Construction Co., supra; Fayette County Housing Authority v. Housing & Redevelop. Insurance Exchange (HARIE), 771 A.2d 11, 13 (Pa. Super. 2001) (en banc); Seybert, 757 A.2d at 382.

Insurance policy language is not deemed to be ambiguous merely because the parties do not agree on its interpretation. Tyler v. Motorists Mutual Insurance Co., 779 A.2d 528, 531 (Pa. Super. 2001); RESPA of Pennsylvania Inc. v. Skillman, 768 A.2d 335, 340 (Pa. Super. 2001). On the contrary, a policy provision is ambiguous only “if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.” Madison Construction Co., supra at 606, 735 A.2d at 106 (quoting Hutchison v. Sunbeam Coal Co., 513 Pa. 192, 201, 519 A.2d 385, 390 (1986)). The presence or absence of an ambiguity is not a question to be resolved in a vacuum and must instead be considered in reference to a specific set of facts. Lititz Mutual Insurance Co., supra. Hence, insurance terms “are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts.” Madison Construction Co., supra; HARIE, supra.

Ambiguities are generally characterized as either patent or latent. Patent ambiguities appear on the face of the insurance contract due to the use of defective, obscure or insensible language. Sunbeam Corp. v. Liberty Mutual Insurance Co., 740 A.2d 1179, 1185 (Pa. Super. 1999). A latent ambiguity arises from extraneous or collateral facts that render the meaning of policy language uncertain even though in a general sense the wording appears clear and unambiguous as written. USX Corp., 99 F. Supp.2d at 609.

In interpreting the terms of an insurance policy, a court should not “distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity.” Madison Construction Co., supra; HARIE, supra. To that end, words of common usage in an insurance policy are to be read in their natural, plain and ordinary sense and courts may consider the dictionary definitions of insurance terms in attempting to reasonably construe them. Madison Construction Co., supra at 608, 735 A.2d at 108; Tyler, supra; Municipality of Mount Lebanon, 778 A.2d at 1232-33.

HARIE contends that its policy’s definition of a “wrongful act” bars coverage for Cipriani’s claims under the First Amendment, due process clause and Whistleblower Law. However, the definitional provision of the policy does not state that civil rights claims, constitutional torts or retaliatory firings are expressly or implicitly excluded. In fact, unlike other liability insurance policies, the HARIE contract does not contain a specific exclusion for harm that was intended or expected by the insured. Compare, Elitzky, supra.

While it is trae that the policy definition of “wrongful act” includes wording such as “neglect or breach of duty,” that language cannot be viewed in isolation and must be analyzed in the entire context in which it appears. HARIE’s definition of a “wrongful act” not only refers to an “error,” “omission,” “neglect” and “breach of duty,” but also includes more egregious conduct such as a “misleading statement” and “misstatement” and broadly embodies “any matter claimed” against the LCHA’s representatives by reason of their positions. Such terminology does not support the conclusion that the policy definí - tion of the term “wrongful act” is confined to mere negligence. Cf. Miller v. Keystone Insurance Co., 535 Pa. 531, 538-39, 636 A.2d 1109, 1113 (1994) (equating “misleading statements” with intentional conduct and holding that absent “evidence of fraud, intentional deception, or the making of misleading statements,” an employer has no affirmative duty to apprise an employee about available workers’ compensation benefits). On the contrary, the language employed by HARIE in defining a “wrongful act” reflects an expansive, rather than a restrictive, application of that term. See Alexander v. CNA Insurance Co., 441 Pa. Super. 507, 512-13, 657 A.2d 1282, 1285 (1995) (liberally construing a comparable definition of “wrongful acts” and holding that board members charged with breach of contract were entitled to coverage since wrongful acts were defined as being any neglect of duty by the insureds in discharge of their duties), app. denied, 543 Pa. 689, 670 A.2d 139 (1995).

At most, the definition of a “wrongful act” in the policy could arguably be regarded as ambiguous. In that event, it is appropriate to consider dictionary definitions of that phrase as an aid in interpretation. See Madison Construction Co., supra. Black’s Law Dictionary has defined a “wrongful act” as “[a]ny act which in the ordinary course will infringe upon the rights of another to his damage, unless it is done in the exercise of an equal or superior right. [The term] is occasionally equated to [the] term ‘negligent’ but has ... been considered a more comprehensive term, including criminal, willful, wanton, reckless and all other acts which in the ordinary course will infringe upon rights of another to his damage.” Land v. U.S., 29 Fed. Cl. 744, 753 (U.S. Fed. Cl. 1993) (quoting Black’s Law Dictionary (5th ed.) p. 1446); Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 113, 387 S.E.2d 144, 147-48 (1989) (same). Cipriani has alleged, and later established to the satisfaction of a jury, that his termination infringed upon his rights and that he should recover damages for the defendants’ wrongful conduct. Therefore, construing such an ambiguity in favor of the insured and applying recognized dictionary interpretations, HARIE’s definition of a “wrongful act” includes coverage for constitutional torts, civil rights claims and Whistleblower Law violations.

We are mindful that HARIE, as the drafter of the insurance policy, had the ability to control its exposure and indemnity obligations by inserting language that expressly excluded liability for constitutional torts or by defining the phrase “wrongful act” more narrowly so as to eliminate coverage for claims involving violations of the First Amendment, due process clause or Whistleblower Law. See Skias, 52 D.&C.4th at 94 (“[i]f [the insurer] truly wished to limit coverage to the named business of individual insureds it could have easily done so by drafting a restrictive definition of ‘insured’ or by otherwise changing language in the contract of insurance to explicitly limit coverage to a particular business.”); Millar v. Columbia Accident & Health Insurance Co., 12 D.&C.3d 484, 489-90 (Lanc. Cty. 1979) (“[i]f defendant wanted to limit the clause ‘any one sickness’ to the narrow limits it now contends, it could have and should have phrased it differently or included a definition of the term ‘sickness’ within the policy giving it the meaning that it desired.”). For whatever reason, HARIE declined to do so and is now bound by the terms of the policy that it alone composed. See Royal Indemnity Co. v. City of Philadelphia, 1 Phila. 110, 116-17 (1977) (“Royal could have included language excluding reckless or wanton misconduct in its insurance agreement; but as it did not, it is bound to a strict construction of the terms of the instrument which it drafted.”). In a declaratory judgment action, our charge is to declare the rights and obligations of the parties by interpreting the policy as written, not by rewriting an insurance contract to include terms that the parties neglected to insert. Cf. Stewart v. Automobile Underwriters Co. Inc., 54 D.&C.2d 62, 70 (Alleg. Cty. 1971) (“this court is not about to narrow the coverage afforded in such a policy by reading into it an exclusion that the drafters could have quite easily provided for or which further limits a coverage already reduced to a minimum. The insurer had complete control over what is included and what is to be excluded from coverage; the insured may purchase the policy only on a take it or leave it basis and he has no say whatsoever in the language; assuming he had the technical ability to do so.”). Since the policy definition of a “wrongful act” cannot reasonably be interpreted as excluding constitutional torts and retaliatory discharge claims, HARIE is obligated to provide coverage for Cipriani’s claims based upon the First Amendment, due process clause and Whistleblower Law.

(E) Defamation and COBRA Exclusions

HARIE also maintains that the exclusionary language in its policy expressly eliminates coverage for Cipriani’s defamation and COBRA claims. “Where an insurer relies on a policy exclusion as the basis for its denial of coverage and refusal to defend, the insurer has asserted an affirmative defense and, accordingly, bears the burden of proving such defense.” Madison, supra at 605, 735 A.2d at 106; White v. Keystone Insurance Co., 775 A.2d 812, 813 (Pa. Super. 2001); HARIE, 771 A.2d at 13.

The coverage provisions of HARIE’s policy clearly bar protection for “libel or slander” and endorsement no. FD-1 removes any doubt that HARIE is not responsible to make payment for any claims involving “libel, slander, [or] defamation of character.” It is equally clear that section 4(b)(5) precludes coverage for claims based upon ERISA and any “amendments thereto.” It is beyond question that COBRA amended ERISA and is, therefore, considered an “amendment thereto.” See Hubicki v. Amtrak Nat. Passenger R. Co., 808 F. Supp. 192, 193 (E.D. N.Y. 1992). Consequently, the unequivocal language of HARIE’s policy bars coverage for Cipriani’s defamation and COBRA claims and HARIE has no obligation to defend or indemnify the LCHA, Pepperman or Montgomery in that regard.

(F) “Directors’ Liability Act” Exclusion

Although not raised in HARIE’s declaratory judgment complaint or its initial submissions with the court, HARIE asserted in its supplemental brief that coverage for Cipriani’s claims is precluded by endorsement no. XDO-1 of the policy. That particular endorsement states:

“It is hereby understood and agreed that the insurer shall not be liable to make payment for loss in connection with any claim based upon any action which is determined to be a breach of fiduciary relationship, failure to act, or unjustifiable reliance and which breach is determined to constitute self-dealing, willful misconduct, or recklessness as provided for in the director’s Liability Act, 42 P.S. §8361 et seq., provided the named insureds avail themselves of the protection as provided in the Act by amending their bylaws. Failure to enact bylaws as provided for in the Act shall result in the exclusion of any claim payment for any breach, failure to act, or unjustifiable reliance.” (See plaintiff’s response to defendants’ supplemental brief, exhibit A, p. 20.)

For endorsement no. XDO-1 to apply, the wrongful act must have been committed by a corporate director or officer and such conduct must have been adjudicated as constituting self-dealing, willful misconduct or recklessness as identified in the Director’s Liability Act. HARIE was granted the opportunity to conduct discovery to substantiate its bald assertion that Pepperman and Montgomery are directors or officers of the LCHA board who are subject to the Director’s Liability Act, but failed to submit any materials demonstrating that Pepperman. and Montgomery should be regarded as de facto or de jure directors or officers of the board. In contrast, LCHA has produced an affidavit, several job descriptions and bylaws establishing that the LCHA’s community counsel and deputy executive director are not board directors or officers. (See affidavit of Elizabeth Montgomery dated 6/20/01 and exhibits A-D attached thereto.) Hence, the exclusionary language of endorsement no. XDO-1 does not apply to Pepperman or Montgomery.

Assuming arguendo that Pepperman and Montgomery were somehow deemed to be board directors or officers, endorsement no. XDO-1 would nevertheless be inapplicable. The Director’s Liability Act governs breaches of loyalty or fiduciary duty by corporate directors or officers which unjustly enrich them at the expense of the corporation they serve. See e.g., Westlake Plastic Co. v. O’Donnell, 182 F.R.D. 165 (E.D. Pa. 1998) (corporate vice-president engaged in undisclosed self-dealing against corporation’s best interest and for his own financial benefit); Resolution Trust Corp. v. Lutz, 914 F. Supp. 1163 (E.D. Pa. 1996) (test of liability for breach of fiduciary duty is whether corporate director or officer was unjustly enriched). Neither Pepperman nor Montgomery has been charged with such conduct by Cipriani and there has been no judicial determination that either has committed self-dealing, willful misconduct or recklessness as proscribed by the Director’s Liability Act. As a consequence, HARIE has not satisfied its burden of proving its affirmative defense that endorsement no. XDO-1 excludes coverage.

CONCLUSION

Based upon the foregoing, HARIE is obligated to provide coverage for Cipriani’s claims based upon the First Amendment, due process clause and Whistleblower Law and has a duty to defend the LCHA, Pepperman and Montgomery in that regard. Cipriani’s claims for defamation and COBRA infractions are specifically excluded under the policy and HARIE owes no duty to defend or indemnify the LCHA, Pepperman and Montgomery against those claims. HARIE does have a duty to indemnify the LCHA, Pepperman and Montgomery for Cipriani’s causes of action predicated upon the First Amendment, due process clause and Whistleblower Law. As a practical matter, and barring any reversal by the Third Circuit Court of Appeals, indemnification will only be required with respect to the First Amendment award of $875,000 since Judge McClure awarded no damages on the procedural due process verdict and found in favor of the LCHA, Pepperman and Montgomery on the Whistleblower Law claim. An appropriate order will follow.

ORDER

And now, December 31, 2001, upon consideration of the motion for summary judgment of defendants, Lycoming County Housing Authority, Janice Pepperman, Elizabeth Montgomery, and Nicholas Cipriani, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) Defendants’ motion for summary judgment is granted in part and denied in part;

(2) Defendants’ motion for summary judgment is denied with respect to defendant Nicholas Cipriani’s allegations of defamation and violations of the Comprehensive Omnibus Budget Reconciliation Act of 1985 by defendants, Lycoming County Housing Authority, Janice Pepperman and Elizabeth Montgomery;

(3) Plaintiff, Housing and Redevelopment Insurance Exchange does not owe defendants, Lycoming County Housing Authority, Janice Pepperman and Elizabeth Montgomery, a duty to defend or a duty to indemnify them against the defamation and COBRA claims asserted by defendant, Nicholas Cipriani, in Cipriani v. Housing Authority of Lycoming County, no. 4:99-CV-980 (M.D.Pa.);

(4) Defendants’ motion for summary judgment is granted with regard to plaintiff’s obligation to provide insurance coverage to defendants, Lycoming County Housing Authority, Janice Pepperman and Elizabeth Montgomery, for defendant Nicholas Cipriani’s claims based upon the First Amendment, due process clause and Pennsylvania Whistleblower Law;

(5) Plaintiff, Housing and Redevelopment Insurance Exchange owes defendants, Lycoming County Housing Authority, Janice Pepperman and Elizabeth Montgomery, duties to defend and indemnify them against defendant Nicholas Cipriani’s claims in Cipriani v. Housing Authority of Lycoming County, no. 4:99-CV-980 (M.D.Pa.), which are based upon the First Amendment, due process clause and Pennsylvania Whistleblower Law; and

(6) The clerk of judicial records is directed to enter judgment in this matter pursuant to 42 Pa.C.S. §§7532, 7538 and Pa.R.C.P. 1035.2 consistent with this memorandum and order.

      . The federal verdict slip in Cipriani v. LCHA, reads as follows:
      Question 1:
      Was any of the following a substantial or motivating factor in defendants’ decision to terminate plaintiff Cipriani’s employment?
      (a) His expressed intent to seek legal advice about Housing Authority employment matters
      (Check one) Yes X
      No _
      (b) His complaints concerning the Housing Authority’s
      employment of Dean Severson?
      (Check one) Yes X
      No _
      (c) His complaints concerning Ms. Montgomery’s solicitation of a contribution from a Housing Authority contractor?
      (Check one) Yes X
      No

        Instructions:
      If you answered “yes” to any subpart of question 1, proceed to question 2. Otherwise, proceed to question 4.
      Question 2:
      Would the defendants have terminated plaintiff Cipriani’s employment even in the absence of his activity protected under the First Amendment?
      (Check one) Yes _
      No X
      Instructions:
      If you answered “no” to question 2, proceed to question 3. Otherwise, proceed to question 4.
      Question 3:
      State the amount of damages, if any, sustained by plaintiff Cipriani as a result of defendants’ violation of his constitutional rights.
      $875.000
      Instructions:
      Proceed to question 4.
      Question 4:
      Did defendant Montgomery defame plaintiff Cipriani?
      (Check one) Yes _
      No X
      Instructions:
      Proceed to question 5.
      Question 5:
      Did defendant Pepperman defame plaintiff Cipriani?
      (Check one) Yes X
      No _
      Instructions:
      If you answered “yes” to either question 4 or question 5, proceed to question 6. Otherwise, the foreperson should sign and date the verdict slip, and the jury should return to the courtroom.

        Question 6:
      What amount of damages, if any, will fairly compensate plaintiff Cipriani for his emotional distress, humiliation and/or damage to his reputation caused by such defamation?
      $ 25.000
      (See defendants’ reply brief, exhibit A.)

      . In determining whether insurance coverage is excluded under an intentional act limitation set forth in a policy, an insured must not only have intended the conduct, but must also have specifically intended to cause the resultant harm. United Services Auto Association v. Elitzky, 358 Pa. Super. 362, 372, 517 A.2d 982, 989 (1986), app. denied, 515 Pa. 600, 528 A.2d 957 (1987); Aetna Life & Casualty Co. v. Barthelemy, 33 F.3d 189, 191 (3d Cir. 1994).

      . The parties’ reasonable expectations are to be the touchstone of any inquiry into the meaning of an insurance policy. Bensalem Township v. International Surplus Lines Insurance Co., 38 F.3d 1303, 1309 (3d Cir. 1994); USX Corp., 99 F. Supp.2d at 610. Therefore, if an insurer or its agent creates in the insured a reasonable expectation of coverage that is not supported by the terms of the policy, that expectation will prevail over the language of the policy. Bensalem Township, supra at 311; Tico Insurance Co. v. March, 155 F. Supp.2d 441, 446 (E.D. Pa. 2001). As a result, it has been said that even the most clear and unambiguous provision or exclusion in a policy will not bind an insured if the insurer or its agent has created a reasonable expectation in the insured that coverage will exist for a particular claim. See The Medical Protective Co. v. Watkins, 198 F.3d 100, 106-107 (3d Cir. 1999); March, supra; USX Corp., supra. The LCHA, Pepperman and Montgomery have not alleged that HARIE or its representatives engaged in conduct during the negotiation or execution of the insurance contract which created a reasonable expectation of coverage.

      . HARIE does not allege that the LCHA representatives engaged in willful or fraudulent misconduct which was outside of the scope of their employment such that it would be contrary to the pubic policy of the Political Subdivision Tort Claims Act for insurance coverage to be afforded. Compare Supervisors of Lewis Township v. Employers Mutual Cas. Co., 514 Pa. 242, 249-50, 523 A.2d 719, 722 (1987) (holding that it would be violative of public policy to permit a township to insure against willful or fraudulent misconduct by its officials which occurred outside of the scope of their employment).

      . HARIE’s policy cites to the Director’s Liability Act as 42 RS. §8361 et seq. The Act of December 19,1990, P.L. 834, no. 198, §306, repealed that statute which was formerly found at 42 Pa.C.S. §§8361-8367, and enacted a revised version of that Act which has been recodified at 15 Pa.C.S. §§511-518 and 1711-1718.


author: SAYLOR, J.,

text:
    In re D.K.

      C.P. of Northumberland County,
    no. JU-02-205.

      Michael J. Robinson, for CYS.

      James J. Rosini, for minor, D.K.

      John Broda, for Donna K.
    July 10, 2002
   SAYLOR, J.,

The unusual question in this proceeding as to whether the minor should be adjudicated as a dependent child arises from the fact that the referral was originally received by Northumberland County Children and Youth Services from a physician at Geisinger Medical Center due to the minor’s morbid obesity, with its physical and psychological consequences, including depression and social isolation. At the time of the referral in early April 2002, the 16-year-old minor weighed 451 pounds, even though he was only 5' 3" tall. Moreover, he was in the unfortunate circumstances where he was being raised alone by his mother, who had herself become homebound as the result of her own obesity, allegedly in the 600-pound range, and as a result, she had obvious limitations as to any type of usual activity. In fact, she did not even attend medical appointments with her son because of her own obesity.

Although the minor had a long history of being overweight back into his infancy, the minor was never taken by his parents to see a dietician. In the past year, he had gained over 100 pounds. As the result of concern on the part of school officials, not only as to his weight but also his poor performance and absenteeism, the minor was evaluated on April 8, 2002, in the pediatric gastroenterology department of Geisinger Medical Center. The minor’s health situation had reached, in the terms of his examining physician, a “life threatening situation,” which required his admission to the hospital. The principal diagnosis was that of morbid obesity, with the following resulting complications:

(1) An enlarged liver as a precursor to cirrhosis of the liver;
(2) Hypertension;
(3) Respiratory problems to the extent that he required oxygen at night;
(4) Insulin resistance that places him at a high risk for diabetes;
(5) Sleep apnea; and,
(6) Knee pain.

It was also confirmed that he was suffering from a depressive disorder. He reported spending nine hours a day sitting before the television or a computer screen, with few friends.

Upon receipt of the referral on April 12, 2002, from the physicians at Geisinger Medical Center, CYS obtained from the mother a voluntary entrustment agreement placing D.K. in the care and custody of CYS. The minor was placed on a very specific, physician-supervised diet, as well as a directive to engage in regular exercise, such as walking. This is all now being accomplished in the home setting of his foster parents. By the time of the hearing held by this court on July 2, 2002, the minor had lost 50 pounds in three months.

The minor has now expressed a strong desire to return home, as he now relates that his new eating habits are now ingrained; that he believes he could now shop and prepare his meals, with some assistance of his mother; and that there are more recreational activities near his home than where his foster parents reside. He also wants to be reunited with friends at his former school. His mother also would like to see him return home at this time, and she stated that she would keep him on his diet.

The medical testimony, by a board certified pediatric nutritionist, is that the diet is one that could be monitored in a home setting; however, he did not believe that the mother here with her limitations as noted above would provide the necessary help and support the minor needs in order to avert a return to his former lifestyle, and if this occurs, the minor then has a “guarantee” of a short life span of only reaching his 30s, with physical problems of liver and heart disease, diabetes and sleep apnea. According to this specialist, it was of critical importance for the minor to have the proper support and reinforcement from his caretaker.

As we turn to the Juvenile Act, the most common category of the definitions for a “dependent child” is set forth in 42 Pa.C.S. §6302(1), as follows:

“A child who (1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals.”

This has been further explained to mean that “the Act limits the Commonwealth’s coercive interference with the family unit to those cases where the parents have not provided ‘a minimum standard of care for a child’s physical, intellectual and moral well-being.’... [P]arental care which is both ‘necessary’ and ‘proper’ is not the best care possible but that care which (1) is geared to the particularized needs of the child and (2) at a minimum, is likely to prevent serious injury to the child.” In the Interest of Pernishek, 268 Pa. Super. 447, 458, 408 A.2d 872, 877-78 (1979). As further explained in In the Matter of Yeager, 309 Pa. Super. 491, 496, 455 A.2d 717, 719 (1983), “the compelling consideration is the ability and willingness of the parent or parents to provide necessary and proper care according to the special needs of their child or children.” Thus, it does not require a finding by this court of parental fault prior to an adjudication of dependency. The question here is not the capability of the parent for caring for a normal child, but whether she can provide the required level of support and reinforcement required for her child’s specialized needs. In the Matter of Yeager, supra.

The specialized needs of the minor here are to lose sufficient weight to take him out of the morbid obesity category, and thus alleviate his related physical and mental problems. This is an extreme case, and certainly CYS would not be justified by intervening simply because a child was overweight, or did not simply engage in a healthy and fit lifestyle. Rather, the obesity must be of a severe nature reaching the life threatening or morbid state, which has also manifested itself in physical problems, such as those present here, or mental problems.

If a child does not receive necessary medical care for a health problem, there is usually no difficulty in a court making a finding of dependency, and especially in the situation where a child was malnourished to the point of near starvation. Cf. Commonwealth v. Cottam, 420 Pa. Super. 311, 616 A.2d 988 (1992). This situation here is on the other end of the nourishment spectrum, but it is no less dangerous to the child’s physical and mental well-being. In light of the medical testimony presented as to the present physical condition of the minor, this court finds that CYS has established by clear and convincing evidence that he is a dependent child at this time.

The inquiry now turns to whether the minor should continue to remain separated from his mother under these circumstances. The standard to guide this determination was set forth in In the Interest of Whittle, 263 Pa. Super. 312, 316, 397 A.2d 1225, 1226 (1979):

“The purpose of the Juvenile Act is to preserve, whenever possible, the unity of the family; children should be separated from their families only in cases of clear necessity. . . . Even where there are inadequacies in the child’s home, the court should first consider ordering CWS to take the steps necessary to instruct the parents in the skills needed, and to provide follow-up supervision in the home, where feasible.” (emphasis added) (citations omitted)

In In the Interest of Pernishek, supra, the parents were evaluated as to their ability to provide the necessary care for their 9-year-old child diagnosed as a psychosocial dwarf. There was conflicting expert opinion as to whether specialized institutional care was required, and even if it would be successful, and, thus, further hearings were required as to the child’s progress to be held every three months. In the Whittle case, it was determined that the parents, with proper training and supervision, could adequately and properly care in their own home for the special care required of their daughter’s serious bums.

Unlike those parents, the mother here does not have the natural abilities typical of any parent, as she is limited by her own extreme obesity. Her own problems interfere with her ability to meet the special needs of her son. She is homebound, and this prevented her from even attending her son’s medical appointments, so as to be fully advised as to the seriousness of his condition. Since she did not go to the hospital during his six days as an inpatient there, it is unlikely that she fully appreciates her son’s situation at this time. Despite his obesity from the age of 3, and his weight gain of over 100 pounds in the past year, there is no evidence that she did anything to address his problem. She never took him to a dietician or other specialist.

It is also troubling that she apparently did little or nothing regarding her son’s declining performance in school, and his absenteeism. The minor indicated that he simply did not go to school when he did not feel like it. There is no indication by him of any parental involvement as to this determination by him. She has been unable to maintain her own health by addressing her own obesity problem, and therefore it is highly unlikely that she will now be able to do so with regard to her son’s identical problem.

It has only been since his hospitalization and placement in foster care that his obesity is now being addressed, and his physical condition has been improving. Thus, there is a clear necessity for him to remain in foster care at the present time. However, as in Pemishek, supra, this is a case that will require constant monitoring to ensure that the placement continues to work toward restoring the minor’s health and only lasts as long as absolutely necessary. Once the mother can demonstrate her ability to offer the required assistance and support to her son, and the new eating habits, education, and exercise programs become more ingrained and of a habitual nature for the minor, then the goal of reunification can be achieved.

With regard to reunification, it is recommended that the minor obtain access by a membership in a youth oriented fitness facility such as the YMCA for continuing reinforcement, and involvement with a mentoring program such as Big Brothers/Big Sisters. Further review of this matter should be scheduled by a hearing to be held no later than every three months.

Accordingly, we enter the following order:

ORDER

And now, July 10,2002, it is ordered and directed that:

(1) With the child’s health and safety as the paramount concern, the court finds that reasonable efforts were made to preserve and reunify the family prior to the placement of the child.

(2) That D.K. is adjudicated dependent by reason of being without proper parental care or control necessary for his physical, mental and emotional health.

(3) That legal and physical custody of D.K. is awarded to Northumberland County Children and Youth Services and that he is hereby placed in a children and youth services approved facility until further order of the court.

(4) That removal of D.K. from the home was the result of a determination that continuation therein would be contrary to the health, welfare and safety of the child and that reasonable efforts were made by the agency to preserve and reunify the family.

(5) That Northumberland County Children and Youth Services will ensure that the opportunity for visits between the child and his mother will be provided at least twice every week, unless such are not in keeping with the service objectives or placement goals.

(6) (a) That D.K. obtain and maintain a healthy weight and lifestyle before returning home to the care of the natural mother.

(b) That D.K. obtain and maintain a membership in a fitness facility, and participate in a mentoring program.

(7) That Donna K. attends all D.K.’s medical appointments.

(8) That Donna K. cooperates with a resource worker for help with nutrition.

(9) That Donna K. provide the appropriate foods in the home and prepare them as required by the diet as part of her visitation with D.K.

(10) That Donna K. supports D.K. in his efforts to lose weight.

(11) That Donna K. provide a safe, stable, and healthy home environment for the minor child.

(12) That Donna K. attend counseling with D.K. as required by the therapist and follow all recommendations of the therapist.

(13) That Donna K. will address her own health concerns and well-being in order to care for D.K.

(14) That Donna K. will cooperate with Northumberland County Children and Youth Services and follow all recommendations.

(15) That Northumberland County Children and Youth Services be permitted to release pertinent information regarding this matter to all appropriate treating professionals and agencies.

(16) Because good cause for such disclosure has been shown to the court, that all educational, drug and alcohol, psychological and medical records (including all diagnostic tests, evaluations, treatment notes, treatment plans, summaries, conclusions and recommendations) from all treating facilities and professionals, including but not limited to: Shikellamy School District, Dr. Cochran, Northumberland County Mental Health and Mental Retardation, Dr. Fabian, Sun Home Health Services, Geisinger Medical Center, Sunbury Community Hospital pertaining to Donna and D.K. be released to children and youth services for the purpose of assessment, ongoing monitoring, and the court’s review; material to be released is to include all present information and future until further order of the court.

(17) That the name and address of the foster parents not be released unless approved by children and youth services.

(18) That in the event of extended placement, Northumberland County Children and Youth Services shall ensure that the child receive a permanency hearing and placement review before the end of the third, sixth and ninth month of continuous placement of the child and each three months thereafter.

      . D.K.’s father died at the age of 37 of a myocardial infarction.

      . He is required to perform an aerobic exercise for at least 30 minutes a day.