author: NEALON, J.,

text:
    Fasula v. Hijazi

      C.P. of Lackawanna County,
    no. 99-CV-738.

      Paul J. Drucker and Michael J. Donohue, for plaintiff.

      David W. Saba and Lara J. Endler, for defendant Hijazi.

      Michael P. Perry, for defendant Community Medical Center.
    August 20, 1999
   NEALON, J.,

— Defendant, Saadeddine Hijazi M.D., has filed preliminary objections seeking to strike certain allegations contained in the complaint which has been filed in this medical negligence action. For the reasons set forth below, the preliminary objections will be granted to the extent that they seek to strike averments of “recklessness” in paragraphs 14,16, 24 and 28, and a separate claim for loss of consortium in Count III of the complaint, but will be denied in all other respects.

I. FACTUAL BACKGROUND

According to the allegations of the complaint, the decedent, Neal Fasula, was admitted to defendant Community Medical Center on February 19,1997, where he underwent a laparoscopic cholecystectomy that was performed by Dr. Hijazi. (See plaintiff’s complaint, ¶¶7-8.) The decedent experienced arterial oxygen saturation postoperatively and on February 20,1997, he suffered a cardiac pulmonary arrest and died while still hospitalized at the CMC. (Id., ¶¶10-11.) On March 7, 1997, the decedent’s wife, plaintiff, Joyce A. Fasula, was appointed the executrix of her husband’s estate by the register of wills of Lackawanna County. (Id., ¶12.)

On February 12, 1999, Fasula commenced the above-captioned medical malpractice action by the filing of a writ of summons naming Dr. Hijazi and CMC as defendants. After the CMC filed a rule to file a complaint on February 22, 1999, Fasula filed a complaint against Dr. Hijazi and CMC on March 3,1999. In paragraphs 14, 16, 24 and 28 of the complaint, Fasula alleges than Dr. Hijazi engaged in “carelessness, negligence and recklessness.” Specifically, Fasula contends that Dr. Hijazi’s wrongful conduct consisted of the following:

“(a) failing to bring to bear the medical skills which he would have possessed in the diagnosis and treatment of decedent Neal Fasula;
“(b) failing to conform to the standard of care required of the physician of the defendant’s stature and licensing as a competent and skill (sic) surgeon holding himself as an individual as specialized in the field of general surgery;
“(c) failing to properly perform procedures which reasonable persons of his professional stature would have performed properly;
“(d) failing to conform to, offer to and render to the plaintiff medical care of a reasonable standard as required of a person of his professional status under the circumstance;
“(e) failing to use the ordinary skill and diligence and to apply the methods as ordinarily and customarily used in similar circumstances by competent physicians specializing in general surgery;
“(f) failing to conform to the requisite standards of reasonable medical care;
“(g) failing to properly administer the appropriate precautionary procedures prior to and during the operation of decedent Mr. Fasula to guard against and help prevent the occurrence of a pulmonary embolism.” (Id., ffll4(a)-(g).)

In Count I of the complaint, Fasula asserts a cause of action under the Wrongful Death Act, 42 Pa.C.S. §8301, seeking damages on behalf of the decedent’s survivors, including herself, for the loss of the decedent’s “comfort, aid, assistance, society, tutelage and maintenance.” (Id., ¶20.) Fasula has advanced a separate claim in Count II of the complaint to recover damages on behalf of the decedent’s estate pursuant to the Pennsylvania Survival Act, 42 Pa.C.S. §8302. (Id., ¶¶22-25.) In addition, Count III of the complaint alleges a separate cause of action for “the loss of consortium, comfort, aid, assistance, society, tutelage and maintenance” that Fasula would have received from her husband if he had not died. (Id., ¶28.)

On April 9,1999, CMC filed an answer and new matter to the complaint. However, on March 31, 1999, Dr. Hijazi filed the instant preliminary objections raising three arguments. First, since Fasula seeks to recover for the loss of the decedent’s comfort, society and services in her wrongful death claim under Count I, Dr. Hijazi demurs to Fasula’s attempt to assert a separate loss of consortium claim in Count III on the grounds that it duplicates the damages sought in Count I. Second, Dr. Hijazi preliminarily objects to the bald allegations of “recklessness” to the extent that Fasula may subsequently seek to amend the complaint to include a claim for punitive damages based upon her earlier averment of recklessness. Last, relying upon the frequently cited footnote in Connor v. Allegheny General Hospital, 501 Pa. 306, 311 n.3, 461 A.2d 600, 602 n.3 (1983), Dr. Hijazi seeks to strike what he submits are overly broad allegations of negligence in subparagraphs (a) through (f) of paragraph 14 of the complaint.

Dr. Hijazi filed his supporting memoranda of law on March 31,1999, and Fasula submitted an opposing brief on April 22, 1999. CMC has not asserted any position with respect to the pending preliminary objections. Following the completion of oral argument on August 19, 1999, this matter became ripe for disposition.

n. DISCUSSION

(A) Standard of Review

In ruling upon preliminary objections in the nature of a demurrer, the trial court must accept as true all well-pleaded facts and all inferences reasonably deducible therefrom. Hugi v. Horn, 730 A.2d 1042, 1044 (Pa. Commw. 1999); Myers v. Ridge, 712 A.2d 791, 794 (Pa. Commw. 1998). The issues raised by preliminary objections must be resolved “solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by a demurrer.” Bailey v. Storlazzi, 729 A.2d 1206, 1211 (Pa. Super. 1999); Hull v. Rose, Schmidt, Hasley & DiSalle, 700 A.2d 996, 998-99 (Pa. Super. 1997). A demurrer should be granted “only when, under the facts alleged, the law states with certainty that no recovery is possible.” Deputy Sheriff’s Association v. County of Allegheny, 730 A.2d 1065, 1067 (Pa. Commw. 1999). Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Shick v. Shirey, 552 Pa. 590, 594, 71-6 A.2d 1231, 1233 (1998); Aveline v. Board of Probation and Parole, 729 A.2d 1254, 1256 n.6 (Pa. Commw. 1999).

(B) Loss of Consortium Claim

In paragraph 20 of Count I of the complaint, Fasula avers that the decedent’s “survivors have been deprived of the comfort, aid, assistance, society, tutelage and maintenance they would have received from him during the remainder of his natural life.” Similarly, in paragraph 28 of Count III, Fasula maintains that she “has been deprived of the loss of consortium, comfort, aid, assistance, society, tutelage and maintenance that she would have received from her husband during his lifetime and following his death said loss which will remain (sic) her natural life.” Dr. Hijazi objects to Count III on the basis that it seeks to duplicate those damages which have already been alleged under the Wrongful Death Act via paragraph 20 of the complaint.

Wrongful death damages serve to compensate the spouse, children or parents of a deceased for pecuniary loss that they have sustained as a result of the death of the decedent. Tulewicz v. SEPTA, 529 Pa. 588, 597, 606 A.2d 427, 431 (1992); Moyer v. Rubright, 438 Pa. Super. 154, 159, 651 A.2d 1139, 1141 (1994), appeal denied, 540 Pa. 649, 659 A.2d 988 (1995). The damages recoverable in a wrongful death action include the value of the services the deceased would have rendered to the family had [s]he lived, as well as medical, funeral, burial and estate administration expenses necessitated by reason of the death. Kiser v. Schulte, 538 Pa. 219, 226, 648 A.2d 1, 4 (1994); Burkett v. George, 118 Pa. Commw. 543, 546, 545 A.2d 985, 987 (1988).

In contrast, a survival action is brought by the administrator of the decedent’s estate to recover on behalf of the estate for the personal injuries and consequent damages suffered by the decedent. Tulewicz, 529 Pa. at 597, 606 A.2d at 431; Prevish v. Northwest Medical Center—Oil City Campus, 692 A.2d 192, 199 (Pa. Super. 1997). The measure of damages under the Survival Act include the decedent’s conscious pain and suffering from the moment of injury to the time of death and the loss of the decedent’s earning potential, less any applicable personal maintenance expense, from the time of death through the decedent’s estimated working life span. Kiser, 538 Pa. at 226-27, 648 A.2d at 4; Slaseman v. Meyers, 309 Pa. Super. 537, 544-45, 455 A.2d 1213, 1217 (1983).

As the Supreme Court of Pennsylvania has previously noted, wrongful death and survival actions “are designed to compensate two different categories of claimants: the spouse and/or members of the decedent’s family for wrongful death of the decedent, and the decedent [him] herself through the legal person of [his] her estate.” Kiser, supra at 227, 648 A.2d at 4; Tulewicz, 529 Pa. at 597, 606 A.2d at 431. Moreover, “the actions for damages are cumulative and are not to overlap or result in duplication of damages.” Id. (citing Pezulli v. D’Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942)).

For that reason, a surviving spouse may not pursue a distinct claim for loss of consortium since those damages are recoverable in her wrongful death action. Linebaugh v. Lehr, 351 Pa. Super. 135, 139, 505 A.2d 303, 305 (1996) (“[w]e hold, therefore, that a surviving spouse cannot maintain a separate cause of action for loss of consortium resulting from the death of a spouse but must instead recover damages for loss of the deceased spouse’s society in an action for wrongful death.”); Mease v. Pennsylvania State Police, 145 Pa. Commw. 407, 412-13, 603 A.2d 679, 682 (1992) (“[plaintiff] brought both a wrongful death and a survival action. The recovery she seeks for loss of consortium will be provided in any damages she may recover in the wrongful death action.”). Thus, inasmuch as Fasula may recover for loss of the decedent’s consortium by virtue of paragraph 20 of the complaint, Dr. Hijazi’s preliminary objections to Count III will be granted.

(C) Recklessness Allegations

Fasula’s complaint contains factual averments which allege nothing more than mere negligence or carelessness on the part of Dr. Hijazi and CMC. Although Fasula does not request punitive or exemplary damages in the complaint, she has employed the term “recklessness” in four separate paragraphs of the complaint in referencing the conduct of Dr. Hijazi. At the time of oral argument, counsel for Fasula represented that the reference to “recklessness” was included in the complaint in order to enable Fasula to amend her pleading following the completion of discovery to assert a claim for punitive damages, if warranted.

Pursuant to section 1301.812-A(a) of the Health Care Services Malpractice Act, 40 P.S., punitive damages may be awarded “for conduct that is the result of the health care provider’s willful or wanton conduct or reckless indifference to the rights of others.” However, in the context of a medical negligence claim, “[a] showing of gross negligence is insufficient to support an award of punitive damages.” 40 PS. §1301.812-A(b). Accord SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 495, 587 A.2d 702, 705 (1991) (neither negligence nor gross negligence establishes sufficient culpability to justify a punitive damage award); Castetter v. Mr. B Storage, 699 A.2d 1268, 1271-72 (Pa. Super. 1997) (same). In the present matter, Fasula has not advanced a claim for. punitive damages and the statute of limitations applicable to her causes of action under the Wrongful Death Act and the Survival Act would have expired two years after the decedent’s death on February 20,1997. See Pastierik v. Duquesne Light Co., 514 Pa. 517, 524, 526 A.2d 323, 327 (1987) (the statute of limitations governing a survival claim begins to run no later than the date of death); Baumgart v. Keene Building Products Corp., 430 Pa. Super. 162, 172, 633 A.2d 1189, 1194 (1993), aff’d, 542 Pa. 194, 666 A.2d 238 (1995) (an action for the wrongful death of another must be brought no later than two years after the date of death). See also, Krevitz v. City of Philadelphia, 167 Pa. Commw. 412, 422, 648 A.2d 353, 358 (1994) (discovery rule cannot be employed to extend the time for filing a wrongful death and survival action beyond the two year statute of limitations).

Fasula’s complaint does not contain a factual predicate which would support an allegation of recklessness, nor does it include a specific demand for punitive damages. Contrary to Fasula’s contention, a punitive damage claim is not merely derivátive of her original negligence claim. Romah v. Hygienic Sanitation Co., 705 A.2d 841, 861 n.9 (Pa. Super. 1997). If the averments of the initial complaint simply allege ordinary negligence, a plaintiff may not later seek to amend the complaint to aver reckless conduct and seek the recovery of punitive damages. Willett v. Evergreen Homes Inc., 407 Pa. Super. 141, 150, 595 A.2d 164, 168-69 (1991). Since the two year statute of limitations applicable to Fasula’s claim for punitive damages lapsed on February 20, 1999, she may not amend her complaint at the conclusion of discovery to demand punitive damages. Consequently, the unsubstantiated allegations of “recklessness” in the complaint are impertinent, superfluous and inappropriate and will be stricken from paragraphs 14,16,24 and 28 of the complaint.

(D) General Negligence Averments

Dr. Hijazi also seeks to strike subparagraphs (a) through (f) of paragraph 14 of the complaint on the grounds that those averments are overly broad. Relying upon former Justice Larsen’s footnote in Connor, Dr. Hijazi opines that “the burden is placed on the defendant to preliminarily object to such boilerplate language in order to prevent the plaintiff from asserting new theories of negligence or other claims beyond the running of the statute of limitations.” (See defendant’s brief, p. 7.)

In Connor, the Supreme Court of Pennsylvania permitted a plaintiff to amend the complaint to include a new cause of action by virtue of the fact that the original pleading contained an averment that the defendant had “otherwise fail[ed] to use due care and caution under the circumstances.” Id., 501 Pa. at 311 n.3, 461 A.2d at 602 n.3. Several trial courts interpreted Connor as compelling defendants to seek the dismissal of unduly broad allegations in order to immunize themselves from belated amendments asserting potentially new causes of action. See e.g., Farmer v. Rhoads, 43 D.&C. 3d 393, 397 (Chester Cty. 1986) (granting preliminary objections based upon Connor since “[i]t would be unjust to require defendants in this case to prepare and defend against every possible cause of action that might fall within the ambit, of failing to exercise proper skill under the circumstances.”); Lichty v. Kucharczuk, 5 D.&C.4th 120, 126 (Northampton Cty. 1989) (“[t]he Connor case makes clear that a defendant seeking protection from amendments representing a significant change in theory after the statute of limitations must purge the complaint of generalized averments as in the instant case.”); Badowski v. Acme Markets, 80 Luz. Leg. Reg. 44, 46 (1990) (“[t]he apparent holding of Connor is that where there is a boilerplate averment of negligence contained in the complaint, the complaint can be amended to include any theory of negligence after such time that, without the boilerplate language, the amendment would be barred by the statute of limitations.”); Rockmaker v. Ruht, 47 Lehigh L.J. 166, 167 (1996) (“[o]ne might argue that there is no footnote in the history of Pennsylvania jurisprudence that has caused more difficulty, and produced more preliminary objections, than Justice Larsen’s footnote in Connor.”).

In Johnson v. Patel, 19 D.&C.4th 305 (Lacka. Cty. 1993), Senior Judge S. John Cottone crafted a more equitable application of Connor by affording the plaintiff 120 days within which to conduct discovery so as to articulate more specific averments of negligence, with the proviso that any general allegations would be stricken if the complaint was not so amended within 60 days of the completion of that discovery. Id. at 311. This court has previously followed the sound procedure fashioned by Judge Cottone. See e.g., Shumek v. Scranton Counseling Center, 100 Lacka. Jur. 173, 177-78 (1999).

The Superior Court of Pennsylvania laid this recurring issue to rest by subsequently holding that Connor’s footnote does not require defendants to preliminarily object to general averments for the reasons claimed by Dr. Hijazi. In American States Insurance Co. v. State Auto Insurance Co., 721 A.2d 56 (Pa. Super. 1998), the plaintiff’s contentions were “merely conclusory and the complaint include[d] no specific allegations of facts of the [defendant’s] independent negligence.” Id. at 61. (footnote omitted) In rejecting the defendant’s proffered interpretation of Connor, the Superior Court concluded:

“[Defendant] claim[ed] that, in Connor, ‘the Supreme Court put the burden on defendants to preliminarily object to averments that were unspecific and th& failure to object would result in the allowance of any theory of recovery cognizable within the general averment. ’ . . . This is an erroneous reading of Connor. The only reference to objecting to allegations is in footnote three. Footnote three makes it clear that if a defendant does not understand what an allegation means, it could file preliminary objections and move for a more specific pleading or move to strike that portion of the complaint. The court went on to state that ‘the [plaintiff’s statement] may not be a statement in a concise and summary form of the material facts upon which the plaintiff relied... [and, in that case,] a defendant may move to strike out an insufficient statement, or, if it is too indefinite, may obtain a rule for one more specific. Failing to do either, he will not be entitled to a compulsory nonsuit because of the general character of plaintiff’s statement. ’ [Connor v. Allegheny General Hospital, 461 A.2d 600] at 602 n.3.... This does not stand for the assertion [defendant] makes in this regard.” Id. at 61 n.2. (citation omitted) (emphasis in original)

Hence, according to the most recent appellate pronouncement, Connor simply states that a defendant may not obtain a compulsory nonsuit if the defendant does not request a more specific pleading; however, Connor does not obligate a defendant to preemptively object to general averments in order to safeguard against untimely amendments. In either event, Dr. Hijazi’s concerns with respect to paragraph 14 of the complaint can be adequately addressed by the approach formulated in Johnson v. Patel. An appropriate order will follow.

ORDER

And now, August 20,1999, upon consideration of the preliminary objections of the defendant, Saadeddine Hijazi M.D., the memoranda of law submitted by the parties and the oral argument of counsel, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The preliminary objections to Count III of the complaint are granted and paragraphs 26 through 28 of the complaint are stricken;

(2) The preliminary objections to the averments of “recklessness” in paragraphs 14, 16, 24 and 28 of the complaint are granted and any reference to “recklessness” in those paragraphs is stricken;

(3) With regard to the allegations of paragraphs 14(a)-(f) of the complaint, plaintiff will be afforded 120 days from the date of this order within which to conduct discovery so as to enable plaintiff to prepare and file a more specific pleading within 60 days of the completion of such discovery; and

(4) If the plaintiff fails to so amend paragraphs 14(a)-(f) of the complaint within 180 days of the date of this order, the objectionable portions of paragraphs 14(a)-(f) will be deemed stricken.


source: Caselaw Access Project

author: FRIEDMAN, J.,

license: Public Domain

text:
    Maxine Jacoby & Associates v. Graf

      C.P. of Allegheny County,
    no. GD 98-10100.

      Joseph J. Chester, for plaintiff.

      Steven B. Silverman, for defendants.
    February 4, 2000
   FRIEDMAN, J.,

— Plaintiff has appealed from this court’s order dated November 17,1999, in which we sustained defendants’ preliminary objections and dismissed plaintiff’s amended complaint with prejudice, based on improper service of original process.

When this case was commenced, the only defendant named was John E. Graf. According to affidavits submitted by the defendants, John E. Graf was an associate attorney employed by Tucker Arensberg P.C. Service was made as to John E. Graf at the offices of Tucker Arensberg P.C. by handing a copy of the writ to Danelle Santoro, who, according to affidavits submitted by the defendants, is the receptionist at the office. On the sheriff’s return of service, the box “Agent or person in charge of defendants) office or usual place of business” is checked. Plaintiff later mailed a copy of the complaint to defendant Graf, who subsequently filed preliminary objections thereto. Prior to argument, plaintiff filed an amended complaint, this time naming John E. Graf and Tucker Arensberg P.C. as defendants. Plaintiff also added an additional count, claiming breach of contract, to the original counts of defamation and tortious interference. It is undisputed that the amended complaint was served on Tucker Arensberg P.C by first-class mail only.

DEFENDANT GRAF

Service was ineffective as to defendant Graf under Pa.R.C.P. 402(a)(2)(iii). That rule provides that “Original process may be served ... by handing a copy ... at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.”

This provision has consistently been interpreted by Pennsylvania courts as permitting service at a defendant’s place of business to the agent or person in charge only when the defendant has “more proprietary responsibility and control over the business than that possessed by the average employee.” Pincus v. Mutual Assurance Co., 457 Pa. 94, 99, 321 A.2d 906, 910 (1974), construing Pa.R.C.P. 1009(b), now superseded, but substantially similar to the current rule. See Sharp v. Valley Forge Medical Center, 422 Pa. 124, 221 A.2d 185 (1966), construing the prior rule. The rules of court, as interpreted by the appellate courts, permit service of a defendant at his or her place of employment only in very limited circumstances.

Defendants attached affidavits of the receptionist, defendant Graf, and one of the shareholders of Tucker Arensberg PC to their preliminary objections to the original complaint and the amended complaint. The affidavits indicated that defendant Graf was an associate attorney and was a salaried employee at will, that Graf did not have any ownership interest in Tucker Arensberg PC. and did not participate in management of the firm, and that Graf received assignments from and was usually supervised by shareholders of the firm. Plaintiff has not rebutted these contentions in any way.

We feel constrained to point out the distinctions between the instant case and the case of Williams v. Office of Public Defender County of Lehigh, 402 Pa. Super. 188, 586 A.2d 924 (1990), which was found by this court during its research in connection with this opinion. In Williams, service was found to be proper as to public defender attorneys by serving the secretary at their office. The Superior Court distinguished the prior cases from Williams, pointing out that in Williams, not only did the defendants have sufficient involvement in the “functioning and management” of the office, but also the public defender’s office was “unique” in nature, unlike the places of employment in the other cases. Williams does not change the well-settled law set forth in Pincus and Sharp.

Although both Williams and the instant case involve service of an attorney at his office, there is no evidence to suggest that defendant Graf is involved in the “functioning and management” of Tucker Arensberg P.C.

DEFENDANT TUCKER ARENSBERG P.C.

We also properly dismissed the amended complaint as to defendant Tucker Arensberg P.C. because original process was never served on it by the sheriff. The amended complaint was not, as plaintiff contends, a secondary pleading as to Tucker Arensberg, which could properly be served by mail. It was original process. Furthermore, service of the writ of summons by the deputy sheriff as to defendant Graf is clearly not sufficient as to defendant Tucker Arensberg, which was not even named in the writ as a defendant in the action. Tucker Arensberg was first named as a defendant in the amended complaint, and therefore the amended complaint was original process as to Tucker Arensberg.

Pa.R.C.P. 425(a) provides, inter alia, that “[ojriginal process shall be served upon an additional defendant who is not already a party to the action in the same manner as if he were an original defendant.” Original process (with a few exceptions not relevant here) must be served by the sheriff. (Pa.R.C.P. 400.)

CONCLUSION

We properly dismissed the amended complaint as to both defendants, with prejudice, for failure to effect proper service of original process. The other issues raised in plaintiff’s statement of matters complained of on appeal regarding the merits of the counts pled are moot.

      . It should also be noted that the letter upon which plaintiff’s action is based was dated June 19, 1997. The statute of limitations has therefore expired as to two of the counts of the amended complaint, defamation and tortious interference with contract. Count III, which is entitled “Contract” and which contains a claim for defendants’ failure to pay for court reporting services, is moot, since both parties agree that plaintiff has since been paid.


author: SOLOMON, J.,

text:
    Hladinec v. Nationwide Insurance Co.

      C.P of Fayette County,
    no. 1778 of 1999, G.D.

      Mark Rowan, for plantiff.

      Robert Grimm, for defendant.
    February 8, 2000
   SOLOMON, J.,

— This matter concerns the preliminary objections of the defendant, Nationwide Insurance Company, in the nature of a motion to strike from the complaint the plaintiff’s claim seeking to recover bad faith damages, and challenging an arbitration board’s jurisdiction to hear the bad faith claim.

BACKGROUND

This action arises out of an automobile accident which occurred on December 15, 1996, wherein the plaintiff, Cheryl A. Hladinec, allegedly sustained personal injuries. She subsequently sought medical treatment from the Hopwood Chiropractic Clinic. When the defendant, who provided motor vehicle insurance to the plaintiff, denied payment to the clinic for the chiropractic treatment based upon a peer review performed by Solomon Associates Inc., suit was instituted.

The plaintiff has asserted a breach of contract action and demands damages pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law, seeking the payment of chiropractic bills, interest and attorney’s fees. The plaintiff also alleges a cause of action for bad faith and seeks damages based on the defendant’s utilization of a peer review organization in bad faith pursuant to 42 Pa.C.S. §8371.

The defendant contends that the plaintiff is not entitled to seek, or recover, bad faith damages under the statute because the Pennsylvania Motor Vehicle Financial Responsibility Law provides that the exclusive remedy for the denial of first party benefits is based upon the peer review process. The defendant also maintains that the plaintiff’s claims cannot be heard by a board of arbitrators.

DISCUSSION

In reviewing a preliminary objection, this court must consider as true facts that are well pled, material and relevant, together with such reasonable inferences as may be drawn from such facts. Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994). It is the defendant’s burden to demonstrate with certainty that the law will not permit recovery based on the facts averred in the complaint. Kyle v. McNamara and Criste, 506 Pa. 631, 487 A.2d 814 (1985). If there is any doubt, it should be resolved by overruling the preliminary objection. Mellon Bank, 437 Pa. Super. at 560, 650 A.2d at 896. With these standards in mind, we will now consider the defendant’s preliminary objections.

The plaintiff is seeking damages for bad faith pursuant to 42 Pa.C.S. §8371. The defendant contends that it could not have acted with bad faith toward the plaintiff because it specifically followed the provisions detailed in the Pennsylvania Motor Vehicle Financial Responsibility Law by utilizing the peer review process in examining the claim. However, the plaintiff has taken the position that the defendant acted in bad faith by choosing a peer review organization that it knew would provide a negative report.

The relevant sections of the MVFRL do not address an abuse of the peer review process; therefore, a claim made under 42 Pa.C.S. §8371 would be appropriate in assessing whether the defendant acted in bad faith by choosing a peer review organization that had previously provided negative reviews. While no precedential authority exists from our higher courts to support this reasoning, several lower courts have made rulings which agree with this position.

The Court of Common Pleas of Mercer County stated that the MVFRL and section 8371 are not irreconcilable if some misconduct is alleged. Murphy v. Progressive Insurance Company, 27 Mercer L.J. 373, 377 (1996). Where misconduct is alleged, the insured can bring a bad faith claim. Id. at 378. In order to maintain a claim under both section 8371 and the MVFRL, the insured must allege some misconduct on the part of the insurance company. Signor v. United States Fidelity Guaranty Company, 115 Dauphin Rep. 279, 283 (1995). Similarly, “the mere act of submitting the claims to a [peer review organization] does not negate the possibility of bad faith on the part of the insurer.” Milton S. Hershey Medical Center v. State Farm Insurance Company, 21 D.&C.4th 62, 71 (1992).

From the reasoning in these decisions, bad faith claims under section 8371 have been permitted to go forward even though the insurer had submitted the claims to a peer review organization. The only condition imposed is that there must be an allegation of misconduct or abuse of the peer review process on the part of the insurer. Although we are not bound to follow any of the above cited decisions, we are persuaded to accept the sound reasoning contained therein, and to permit this bad faith claim to go forward, especially at this stage in the proceedings. The only pleading thus far is the complaint of the plaintiff, and it contains allegations that the defendant acted in bad faith by improperly selecting a peer review organization. Giving the plaintiff the benefit of any doubt, we must deny the preliminary objection of the defendant seeking to strike the bad faith claim of the plaintiff from the complaint.

The only other issue we must consider is whether 42 Pa.C.S. §8371 precludes an arbitration board from considering bad faith claims. The defendant’s argument is based on the language contained in section 8371, which refers only to a “court” making findings and a “court” taking action. In support of this, the defendant has relied on the holding that only a judge, and not a jury, may assess bad faith conduct. Younis Brothers and Company Inc. v. CIGNA Worldwide Insurance Company, 882 F. Supp. 1468 (E.D. Pa. 1994). However, Younis does not address the specific issue before the court of whether a board of arbitrators may decide a bad faith claim.

It has long been settled that arbitrators can rule on both issues of fact and law. Shannon v. Pennsylvania Electric Co., 364 Pa. 379, 72 A.2d 564 (1950). Moreover, no authority exists to indicate to this court that the legislature intended to specifically preclude arbitrators from deciding section 8371 bad faith claims. Once again, we must turn to a non-controlling authority for an example on this issue. The Allegheny County Court of Common Pleas held that arbitrators could decide section 8371 bad faith claims as long as the damage claims did not exceed the jurisdictional limits for compulsory arbitration. Oliver v. Allstate Insurance Company, 142 P.L.J. 118 (1994). We concur with the Oliver court, and find that a board of arbitrators does have jurisdiction to hear bad faith claims brought under 42 Pa.C.S .§8371. Therefore, this preliminary objection must also be denied.

Wherefore, we will enter the following order.

ORDER

And now, February 8, 2000, it is hereby ordered and decreed that the preliminary objections of the defendant to the complaint of the plaintiff are denied.