author: GORDON, J.,

text:
    Santarelli v. Procaccini

      James C. Crumlish III, for plaintiff.

      Charles M. Golden, for defendants Evans.

      Edward Keif, for defendant Procaccini.
    January 27, 1998
   GORDON, J.,

This is an appeal from the granting of the defendants’, Benjamin R. Evans and Linda Evans’, preliminary objections to the plaintiff’s complaint. This case arises from a complaint in which the plaintiff asserts various claims against the defendants, including fraud, breach of fiduciary duty, unjust enrichment, conversion and breach of contract. The plaintiff, Daniel Santarelli, along with the defendants, Benjamin Evans, Linda Evans and Louis Procaccini, owned and operated the now defunct E&S Corporation. Neither the writ of summons nor the complaint names E&S Corporation as a defendant.

On April 7, 1994, the plaintiff issued a writ of summons which was reissued on May 6, 1994 and again on July 11, 1994. On October 1, 1996, the court issued a rule to show cause why judgment of non pros should not be entered, to which the plaintiff filed a civil case information sheet on October 30, 1996. The complaint was filed on June 5,1997. On May 15,1997, the attorney for Joseph Procaccini filed an entry of appearance and filed an answer to the complaint on June 27, 1997.

On June 25, Benjamin and Linda Evans filed their preliminary objections alleging, inter alia, lack of service and lack of personal jurisdiction. The preliminary objections aver that they were not properly served with the writ of summons nor the complaint in accordance with Pa.R.C.P. no. 402, and therefore this court does not have personal jurisdiction over them.

Preliminary objections are governed by Pa.R.C.P. no. 1028. A party may file objections to any pleading based on lack of personal jurisdiction via improper service of a writ of summons or a complaint. A party may file an amended pleading as of course within 20 days after service of a copy of a preliminary objection.

The standard of review is to treat all well-pleaded factual averments as admitted and determine whether recovery is available, as a matter of law, under any pleaded theory. See e.g., Kimmel Township Taxpayers Association v. Claysburg Kimmel School District, 146 Pa. Commw. 57, 604 A.2d 1149 (1992). Pennsylvania Rules of Civil Procedure require that service of original process (including writs and complaints) be within specified guidelines so as to reasonably assure that the defendant is notified and aware of a pending action against him. Rule 402 states:

“(a) Original process may be served
“(1) by handing a copy to the defendant; or
“(2) by handing a copy
“(i) at the residence of the defendant to an adult member of the family with whom he resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or
“(ii) at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides; or
“(iii) 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.”

Further, Rule 402(b) allows original process to be served upon a defendant’s attorney only if the attorney is an agent duly authorized to receive process, having entered an appearance of record and returned an acceptance of service form certifying that the attorney is authorized to accept service on behalf of the defendant. It states:

“(b) In lieu of service under this rule, the defendant or his authorized agent may accept service of original process by filing a separate document which shall be substantially in the following form [acceptance of service form].”

The Pennsylvania courts have consistently held that in order for personal jurisdiction to attach, the rules relating to service of process must be strictly followed and there is no presumption as to the validity of service. Personal jurisdiction over a defendant is dependent upon proper service having been made. See e.g., Commonwealth v. Stewart, 374 Pa. Super. 479, 543 A.2d 572 (1988); Sharp v. Valley Forge Medical Center and Heart Hospital Inc., 422 Pa. 124, 221 A.2d 185 (1966); Neff v. Tribune Printing Co., 421 Pa. 122, 218 A.2d 756 (1966); McCall v. Gates, 354 Pa. 158, 47 A.2d 211 (1946).

In the case of Commonwealth v. Stewart, supra, Bonnie and James Stewart separated because of marital problems. Bonnie Stewart filed a petition for primary custody of a minor child, from which the court issued an order for James Stewart to show cause why primary custody should not be granted. The court further ordered a preliminary hearing scheduled approximately two weeks later. Neither the petition nor the court order was served on James Stewart. The evening before the hearing, Mrs. Stewart commented about the hearing in a telephone call to Mr. Stewart. James Stewart did not attend the hearing and a court order was issued granting primary custody to Bonnie Stewart.

The Superior Court ruled that jurisdiction of the person may only be obtained through consent, waiver or proper service of process. The record showed that Bonnie Stewart had attempted to serve the petition on James Stewart through his attorney. The court stated, however, that because the attorney had not entered his appearance on behalf of James Stewart in that matter, service of process was not achieved.

The Superior Court went on to state that actual notice, in the absence of proper service, is insufficient to bring a respondent within the jurisdiction of the trial court.

In the present case, the plaintiff filed the first writ of summons on April 7, 1994. Shortly thereafter, on April 15, 1994, the defendants’ attorney, handling a separate legal matter for Benjamin Evans, sent a letter to the plaintiff requesting that any original process relevant to the suit of April 7, 1994 should be served on him. It is unclear from the correspondence whether such request was authorized by Mr. Evans. Both defendants aver that, although the attorney in question was representing them in a separate legal matter, they had neither retained counsel for this case nor had they authorized acceptance of service for this action.

The plaintiff states in his answer to the preliminary objections that in the letter of April 15,1994, the defendants’ attorney expressly agreed and represented that he was authorized to accept service. The plaintiff’s attorney has also filed a sworn affidavit with this court stating that he was instructed by defendants’ then attorney to serve, and did so serve, a writ of summons upon the attorney.

This court concludes that the plaintiff did not effectuate proper service on the Evanses and, therefore, this court lacks in personam jurisdiction over them.

First, we should note that we do not find it persuasive that the plaintiff believed the letter of April 15, 1994 satisfied the certification requirements of Rule 402. In a reply letter dated May 20, 1994, the plaintiff acknowledged the attorney’s request for service but also included an acceptance of service form to certify authorization. In fact, the plaintiff stated in his response letter:

“Enclosed are the summons and acceptances of service for Benjamin R. Evans and for Linda Evans. Please execute both acceptances of service and return them to me no later than May 26, 1994. If I do not receive them by the 26th, I shall direct the sheriff to serve the summons.”

The acceptance of service forms for original process were never returned, nor did counsel for the Evanses file an entry of appearance on behalf of the defendants.

Secondly, submission of an affidavit that service was perfected has no basis or validity under Rule 402. Affidavits of service are governed by Rule 405 and refer to the return of service by someone other than the sheriff. Affidavits do not negate the provisions of Rule 402 which require that process be served upon the defendant or an authorized agent. Goodrich-Amram 2d, Standard Pennsylvania Practice §§402, 405.

Thirdly, the plaintiff’s belief in the attorney’s authority is irrelevant. Simply requesting that service be made in a particular manner does not satisfy Rule 402(b) or the holding of Stewart, supra. Rule 402(b) does not allow as an exception a letter from an attorney asking to be served. Rule 402(b) requires that the defendant accepting original process sign a document to that effect so that it may be placed on the record. See Main Line Abstract Co. v. Penn Title Insurance Co., 282 Pa. Super. 545, 423 A.2d 379 (1980).

The Main Line court stated that filing the acceptance of service form with the prothonotary and having it noted on the docket is contemplated in view of the rule which requires the sheriff to make a return of service. Rule 402(b) also provides a form with suggested language that requires the attorney to certify that he is authorized to accept service. Id. at 548, 423 A.2d at 380.

Lastly, after three years, during which time there was no acceptance of service form filed and no entry of appearance by the defendants’ attorney, the plaintiff filed the complaint on June 5, 1997. According to the plaintiff’s certificate of service attached to the complaint, he then served the complaint by first-class mail to the address and attention of the same attorney as was sent the writ. Rule 403 authorizes original process to be served by mail only under specific circumstances. The rule begins by stating “[iff a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent.” (emphasis added)

Clearly, Rule 402 is not one of the rules which authorizes service by mail. Examples of rules specifically authorizing service of original process by mail are Rule 404 for service outside the Commonwealth, and Rule 412 in actions of custody, divorce and visitation of minors. Goodrich-Amram 2d, Standard Pennsylvania Practice §§400-441.

When the plaintiff did not receive an acceptance of service form after serving the writ, this should have put him on notice to take further steps. He had the option of serving the defendant via the sheriff and should have exercised it. The plaintiff cannot make assumptions that simply because a third party asks for service, such service is proper. The Rules of Civil Procedure specifically outline what process is required and it is up to the attorneys involved in the litigation to read and follow them.

When deciding a motion to dismiss for lack of personal jurisdiction, the court must consider the evidence in the light most favorable to the non-moving party. Barber v. Pittsburgh Corning Corp., 317 Pa. Super. 285, 464 A.2d 323 (1983). Viewing the evidence in the light most favorable to the plaintiff, and applying the applicable rules and case law, we conclude that proper service was not effectuated upon Mr. and Mrs. Evans. Ergo, this court does not have personal jurisdiction over the parties and they are not properly before this tribunal. Accordingly, the preliminary objections should be sustained.

As we are of the opinion that the issue of jurisdiction is dispositive of this matter, we do not deem it necessary to address the remaining objections raised by the defendants including bar of the statute of limitations, pendency of prior action, lack of conformity with Pa. R.C.P. No. 1019(h), lack of capacity to sue, legal insufficiency of the complaint, and motion to strike scandalous or impertinent matter.

Based on the foregoing, the defendants’, Benjamin R. Evans and Linda Evans’, preliminary objections were sustained.


source: Caselaw Access Project

author: MOTT, J.,

license: Public Domain

text:
    Baldwin v. Brown

      C.P. of Bradford County,
    no. 96CV000411.

      John Thompson, for plaintiff.

      George E. Mehalchick, for defendants.
    May 28, 1999
   MOTT, J.,

This action was brought by the plaintiff, Marilee Baldwin, to recover for injuries that are alleged to have been sustained in an automobile accident that occurred on July 5,1996, when the vehicle she was driving collided with a vehicle being driven by the Defendant, Timothy Brown. The co-defendant, Walter Watson, is the owner of the vehicle which Brown was driving. The plaintiff’s insurance policy contained the limited tort option. The defendants have filed a motion for summary judgment that is before the court for disposition.

In their motion for summary judgment the defendants allege that the record and pleadings do not support a finding that the plaintiff suffered a serious injury as that term is defined by the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq. Therefore, the defendants argue that the plaintiff is precluded from recovering the noneconomic damages she seeks in this lawsuit. After a careful examination of the arguments, briefs, and record in this matter, we find that the motion for summary judgment should be denied.

Pennsylvania Rule of Civil Procedure 1035.2 states that a party may move for summary judgment after the relevant pleadings are closed, if, after the completion of discovery relevant to the motions, the party who bears the burden of proof at trial has failed to produce evidence that would be sufficient to submit the case to a jury at trial.

Pennsylvania Rule of Civil Procedure 1035.3 complements Pa.R.C.P. 1035.2 by maintaining that the adverse party on the motion may not rest upon the mere allegations and denials in that party’s pleadings. Rather, the adverse party has thirty days in which to identify issues of fact arising from the evidence in the record which controverts the evidence cited in support of the motion, or alternatively, identifies evidence in the record which establishes the facts necessary to support the cause of action.

In considering whether to grant summary judgment, this court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Merriweather v. Philadelphia Newspapers Inc., 453 Pa. Super. 464, 471, 684 A.2d 137, 140 (1996). Summary judgment can only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id.

The Pennsylvania Motor Vehicle Financial Responsibility Law provides in pertinent part that:

“Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any non-economic loss.” 75 Pa.C.S. § 1705(d). (emphasis added)

Applying the summary judgment standard in this context, we note that it is the jury’s role to determine whether a serious injury was sustained in all but the clearest of cases. Washington v. Baxter, 553 Pa. 434, 437, 719 A.2d 733, 740 (1998); Furman v. Shapiro, 721 A.2d 1125, 1126 (Pa. Super. 1998). Therefore, summary judgment is not appropriate if reasonable minds could differ as to whether a plaintiff sustained a serious injury.

The Pennsylvania Legislature defines serious injury as “A personal injury resulting in death, serious impairment of body function, or permanent serious disfigurement.” 75 Pa.C.S. §1702. (emphasis added) As the plaintiff claims that her serious injury is manifested as a serious impairment of bodily function, it is within that area that we will confine our analysis.

The absence of a statutory definition for “serious impairment of body function” creates two inquiries for the court.

“(1) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?

“(2) Was the impairment of body function serious?” Washington v. Baxter, supra, 553 Pa. at 447,719 A.2d at 740 (quoting DiFranco v. Pickard, 427 Mich. 32, 398 N.W.2d 896, 901 (1986)).

In determining whether the impairment of body function was serious, the courts in the Commonwealth should consider “the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors.” Id. A plaintiff’s subjective assessment of pain may constitute a serious impairment. Dodson v. Elvey, 445 Pa. Super. 479, 501, 665 A.2d 1223, 1235 (1995). However, serious injury does not exist in instances where there is no serious interference with a plaintiff’s daily life. Id.

In order to determine whether reasonable minds could differ as to whether the plaintiff’s alleged injuries amount to serious injury, it is instructive to review the nature of the injuries sustained by the plaintiffs in the cases cited above. In Washington v. Baxter, supra, the court noted that the evidence, when viewed in the light most favorable to the plaintiff, revealed:

“[T]hat [the plaintiff] was immediately treated [after the accident] in a hospital emergency room, where his injuries were diagnosed as consisting of contusions, sprains, and strains; he was discharged from the emergency room within a few hours. He missed four or five days of work at his full-time job, and missed approximately four of his weekly shifts at his part-time job. Approximately six months after the accident, one of [the plaintiff’s] physicians stated that there appeared to be some type of joint arthritis or coalition in the right foot, and that [the plaintiff] might need to utilize orthotic heel lifts; his physician also injected one shot of cortisone.

Finally, at his deposition approximately one year after the accident, [the plaintiff] indicated that although his foot caused him pain approximately every other week, he was still able to perform his work duties and, aside from having to utilize a riding [lawn] mower, he was able to engage in his normal daily activities.” Id., 553 Pa. at 439, 719 A.2d at 740-41.

The court held that no reasonable mind could differ on the conclusion that the above described injuries were not a serious injury and that, in fact, they were clearly de minimis. Id.

The nature of the injuries sustained by the plaintiff in Furman v. Shapiro, supra, and the effect therefrom, were described as follows:

“[The plaintiff] was diagnosed with several back conditions which included a bulging disc, a condition confirmed by an MRI test. [The plaintiff’s] back problems prevent her from: walking more than one block at a time because of pain which radiates into her left leg; lifting heavy objects, and bathing her daughter. While [the plaintiff] drives, performs household chores and continues to work as a manicurist, she has reduced her work status from full-time to part-time because of her inability to remain in one position for an extended period of time. The doctor described the condition as permanent. Also, [the plaintiff’s] back problems persisted at the time of her deposition, September 20, 1994, a date over three years past the day of the accident. The steps taken to treat the back condition included physical therapy, which was discontinued after her final visit to the doctor on April 6,1992, as well as at home exercises.” Id. at 1127.

Based on the injuries described above, the court held that reasonable minds could differ as to whether a serious injury was sustained. Id. As such, the Superior Court reversed the trial court’s earlier grant of the defendant’s motion for summary judgment.

We find that when the record here is viewed in the light most favorable to the plaintiff, the effect of the alleged injuries resulting from the auto accident are analogous to those suffered by the plaintiff in Furman v. Shapiro, supra. The plaintiff here has been diagnosed with back injuries that cause pain which radiates from the neck down to the right arm. (Exhibits A, B, and C attached to the plaintiff’s brief in opposition to summary judgment.) The plaintiff’s treating physician has opined that this injury is due to the auto accident and is chronic in nature (Id.) It is not believed that the injury will respond well to medication (Id.) The plaintiff maintains that lifting restrictions imposed as a result of her injury have forced her to leave her previous employment and take a more sedentary office position. (Deposition of Marilee Baldwin, N.T., 9/15/98, pp. 14-16.) Her current office employment pays less than her pre-accident employment. (Id., pp. 22-23.) Moreover, the plaintiff has stated that as a result of her injuries, she can no longer go horseback riding, she has trouble sleeping, she is unable to do household cleaning, she cannot engage in chores on the family farm, she can no longer go sleigh riding with her children and she is not able to engage in any sort of repetitive motion. (Id., pp. 78-80.) In addition, her deposition was taken at a time more than two years after the accident and the plaintiff claimed that she continued to take medication and that she was still in constant pain. (Id., pp. 68-69, 81.)

Based on the preceding, we find that there is sufficient evidence in the record for a reasonable mind to conclude that the plaintiff suffered a serious injury as a result of her automobile accident.

Accordingly, we enter the following:

ORDER

And now, May 28,1999, in accord with the memorandum opinion filed this date, the defendants’ motion for summary judgment is denied.


author: REILLY, P.J.,

text:
    Fink v. Bleyaert

      C.P. of Clearfield County,
    no. 95-1082-CD.

      Samuel Cohen, for plaintiff.

      Andrew F. Adomitis, for defendants.
    August 3, 1999
   REILLY, P.J.,

On August 3, 1987, Brendon M. “Butch” Flanagan allegedly suffered a work-related injury that caused him to seek medical treatment from an array of health care providers. On July 6,1993, Mr. Flanagan was referred to the Clearfield Hospital pain clinic for further evaluation. At that time, Archiel L. Bleyaert M.D. administered epidural steroid injections, as had other physicians since 1989. The course of injections was repeated on July 14, 1993, July 23, 1993 and August 24, 1993. On August 24, 1993, Mr. Flanagan suffered cardio-respiratory arrest and died on September 12, 1993.

Plaintiff, Linda Fink, as administratrix of the estate of Brendon M. Flanagan a/k/a/ Butch Flanagan, deceased, and on behalf of the next of kin filed a complaint and alleged, in part, that the epidural steroid injections were improperly administered and resulted in the cardio-res-piratory arrest and the untimely death of Mr. Flanagan. A demand for recovery is also premised upon the failure of defendant Bleyaert and Richard C. Bedger M.D. to obtain a sufficient informed consent from Mr. Flanagan in regards to the injections. Defendants Bleyaert and Bedger filed motions for partial summary judgment in this matter.

The issue before this court is whether defendants Bleyaert and Bedger are entitled to partial summary judgment with respect to plaintiff’s informed consent claim, as informed consent is not required for nonsurgical procedures.

Motions for summary judgment are covered by Pa.R.C.P. 1035.2, which states:

“After relevant pleadings are closed, but within such time so as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2

Summary judgment should be granted if a review of the record demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Perry v. Middle Atlantic Lumbermens Association, 373 Pa. Super. 554, 542 A.2d 81 (1988). When the defendant is the moving party, he may make the showing necessary to support the entry of summary judgment by pointing to materials which indicate that plaintiff is unable to satisfy an element of their cause of action. Godlewski v. Pars Manufacturing Co., 408 Pa. Super. 425, 431, 597 A.2d 106, 109 (1991).

The appellate courts of this Commonwealth have historically interpreted the doctrine of informed consent as applying only to surgeons who perform operations without first securing the informed consent of the patient. Friter v. Iolab Corp., 414 Pa. Super. 622, 626, 607 A.2d 1111, 1113 (1992). In determining whether the patient’s consent to a surgical operation was “informed,” one must consider whether the physician disclosed to the patient all of the facts, risks, and alternatives, which a reasonable person would deem significant in making a decision to undergo the recommended procedure. Moure v. Raeuchle, 529 Pa. 394, 404-405, 604 A.2d 1003, 1008 (1992); Doe v. Dyer-Goode, 389 Pa. Super. 151, 156, 566 A.2d 889, 891 (1989), appeal denied, 527 Pa. 587, 588 A.2d 509 (1990); Rogers v. Lu, 335 Pa. Super. 595, 485 A.2d 54 (1984). An operation performed without the patient’s informed consent constitutes a battery, thus making the physician or physicians liable for any injuries regardless of whether the surgery was negligently performed. Moure v. Raeuchle, supra, 529 Pa. at 405, 604 A.2d at 1008; Doe v. Dyer-Goode, supra, 389 Pa. Super, at 155-56, 566 A.2d at 891; Levenson v. Souser, 384 Pa. Super. 132, 557 A.2d 1081 (1989), appeal denied, 524 Pa. 621, 571 A.2d 383 (1989); Sagala v. Tavares, 367 Pa. Super. 573, 533 A.2d 165 (1987), appeal denied, 518 Pa. 626, 541 A.2d 1138 (1988); see also, Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963).

A claim of lack of informed consent has been characterized by the Pennsylvania Supreme Court as an action for assault and battery. Gray, supra, 423 Pa. at 144, 223 A.2d at 664. As a result, such a claim must be proven as a technical assault, rather than under a theory of negligence. Gallegor v. Felder, 329 Pa. Super. 204, 478 A.2d 34 (1984). Likewise, the Pennsylvania Superior Court has “consistently limited informed consent to a battery theory,” and has refused to expand it. Wu v. Spence, 413 Pa. Super. 352, 356, 605 A.2d 395, 397 (1992).

Pursuant to the Superior Court’s decision in Shaw v. Kirschbaum, 439 Pa. Super. 24, 653 A.2d 12 (1994), the Superior Court mled that the informed consent doctrine applies only to surgical procedures. Later, in Wu, supra the Superior Court refused to extend the doctrine of informed consent to the injection of therapeutic drugs outside the realm of surgery. However, in Morgan v. McPhail, 449 Pa. Super. 71, 672 A.2d 1359 (1996), the Superior Court expressed extreme reservations about the battery theory of informed consent, as well as the distinction between surgical and nonsurgical procedures and implored the Supreme Court to reconsider the issue. Morgan, 449 Pa. Super. at 79, 672 A.2d at 1363. The Supreme Court in Morgan, 550 Pa. 202, 704 A.2d 617 (1997), granted allo-catur on the sole issue of whether the informed consent doctrine should be extended to the administration of therapeutic drugs or whether it should be limited to surgical procedures. Id. The court refused to broaden the scope of the informed consent doctrine to include nonsurgical administration of medication. Furthermore, the court held unequivocally that Pennsylvania does not recognize a cause of action for lack of informed consent in the administration of steroidal injections.

However, plaintiff, in the case at bar, suggests that, unlike the situation in Shaw v. Kirschbaum, 439 Pa. Super. 24, 653 A.2d 12 (1994), a physician who opts to discuss with the patient risks and complications of a nonsurgical procedure and thereafter performs the same may be subject to liability for “negligently” obtaining the informed consent of a patient. In Shaw, suit was initiated against a physician for his alleged negligence in failing to disclose to a patient the risk of paralysis related to a particular surgical procedure. As an intermediate appellate court, the Superior Court felt obligated to follow the precedent set down by our Supreme Court. However, the trial court in Shaw found that: “[ajlthough Pennsylvania law imposes no duty upon Dr. Kirschbaum, a non-operating physician, to discuss the medically established risks associated with the surgical repair of her aneurysm, he voluntarily assumed this duty when he undertook to advocate that Mrs. Shaw travel to the Texas Heart Institute for the specific purpose to undergo the operation. Dr. Kirschbaum gratuitously expanded the scope of his duty to Mrs. Shaw when he undertook the ‘service of persuading his patient to travel to the Texas Heart Institute for corrective surgery rather than merely referring her to the thoracic surgeon for an evaluation.’ ” Id. at 32, 653 A.2d at 16.

The trial court provided no legal basis upon which to find that appellant owed Mrs. Shaw a duty “to discuss the medically established risks” associated with the proposed surgery. The law of this Commonwealth imposes this duty only upon the surgeon actually performing the procedure and neither that trial court nor this court is free to expand that duty.

The trial court did find in Shaw that pursuant to section 323 of the Restatement (Second) of Torts, appellant had gratuitously assumed an undertaking, i.e., assisting in the scheduling of the surgical procedure, and had negligently failed to properly perform that undertaking. Section 323 of the Restatement (Second) provides:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if:
“(a) his failure to exercise such care increases the risk of such harm, or
“(b) the harm is suffered because of the other’s reliance upon the undertaking.” Section 323 of the Restatement (Second) of Torts.

While section 323 has been applied in numerous medical malpractice actions, it has never been utilized in a context similar to the instant case. See e.g, Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984) (failure of hospital to act reasonably in permitting doctor to remove patient from emergency room); Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980) (failure to diagnose bone cancer); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978) (failure to diagnose heart attack).

Section 323 does not obviate the traditional components of a prima facie case sounding in negligence, but rather substitutes a gratuitous undertaking for the element of duty. A prima facie case of medical malpractice based upon a negligent act or omission requires the plaintiff to establish: (1) the existence of a duty owed by the physician/defendant to the plaintiff/patient; (2) a breach of that duty; (3) that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the plaintiff/patient; and (4) damages suffered by the plaintiff/patient that were a direct result of the harm.” See Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990); accord: Morean v. South Hills Health System, 501 Pa. 634, 641, 462 A.2d 680, 684 (1983).

The trial court in Shaw found that by undertaking the “advocacy of surgery,” appellant assumed a duty on his part to advise Mrs. Shaw of “the effects of the proposed surgery upon her pre-existing medical condition as well as the complications associated with the surgery.” The Superior Court found this conclusion unsupportable under both the law of this Commonwealth and the facts of the case. The trial court concluded that, when appellant recommended that the surgery be performed at the Texas Heart Institute of Drs. DeBakey and Cooley, appellant gratuitously accepted a duty to advise her in conformity with principles of informed consent. Appellant, who had communicated to appellees his belief that Mrs. Shaw would die in the near future without the recommended surgery, undertook to assist in travel and financial arrangements but did not expressly or by implication undertake to obtain her informed consent. While one could engage in an academic discussion of the factual scenarios under which the gratuitous acts of assisting in the travel and financial arrangements could result in exposure to liability if those acts were negligently undertaken and harm thereby occurred, appellant did not undertake to obtain the informed consent of Mrs. Shaw to surgery which he did not and could not perform. While appellant strongly urged that Mrs. Shaw undergo surgery, there is no duty in Pennsylvania, and the court declined the invitation to create one in the case, to impose upon an attending or referring physician the obligation to provide all of the information necessary for the patient to provide an informed consent to the surgeon.

As heretofore noted, a recovery on a cause of action based on lack of informed consent is predicated upon a technical battery. However, in the case at bar, unlike the factual situation in Shaw, this court finds that defendants “gratuitously” assumed an necessary undertaking and thus defendants assumed a duty on their part to advise Mr. Flanagan of “the effects of the proposed injection upon his pre-existing medical condition as well as the complications with said injection. Furthermore, unlike the facts in Shaw, supra, the physicians who obtained the informed consent and assumed the “gratuitous duty” were also the same physicians who performed the injections. Thus, pursuant to section 323 of the Restatement (Second) of Torts, this court finds that the physicians in this matter are subject to an assumed duty to “properly” obtain the informed consent of a patient, even when such a procedure, if voluntarily undertaken, was not necessary for a nonsurgical procedure.

Therefore, this court enters the following:

ORDER

Now, August 3, 1999, defendants’ motion for partial summary judgment is hereby granted as to any counts that sound in battery tort in regards to the informed consent doctrine. It is the further order of this court that defendants’ motion for partial summary judgment is hereby denied as to any allegation of defendants’ assuming a duty under the theory of negligence.


author: DEMBE,

text:
    Endre v. Trump Marina

      David A. Rosenbaum and Jeffrey M. Rosenbaum, for plaintiffs.

      Walter Timby Jr. and Robert B. Lawler, for defendant.
    July 22, 1999
   DEMBE,

This is an appeal from the lower court’s order of May 3, 1999, granting defendant Trump Marina’s motion for forum non conveniens and dismissing the action from Philadelphia County to be refiled in a more convenient forum. For the following reasons, the order of the lower court should be affirmed.

The scope of review on appeal from a grant of forum non conveniens is one of abuse of discretion. Walker v. Ohio River Co., 416 Pa. 149, 205 A.2d 43 (1964); Ernest v. Fox Pool Corp., 341 Pa. Super. 71, 491 A.2d 154 (1985); Hosiery Corporation of America Inc. v. Rich, 327 Pa. Super. 472, 476 A.2d 50 (1984); Fox v. Pennsylva nia Power & Light Co., 315 Pa. Super 79, 461 A.2d 805 (1983); Daugherty v. Inland Tugs Co., 240 Pa. Super. 527, 359 A.2d 465 (1976). The trial judge, as per Rule 1006(d)(1), Pa.R.C.R, has broad discretion in determining whether or not to grant a petition for change of venue and must “find that transfer is more convenient for both parties to the action or for the witnesses.” Rubin v. Lehman, 443 Pa. Super. 1, 6, 660 A.2d 636, 639 (1995). (emphasis in original) In addition, “[a] change of venue ‘is not granted lightly or without real necessity’ ... and the applicant bears the burden of proving that the change of venue is necessary.” Pennsylvania Power & Light Co. v. Gulf Oil, 270 Pa. Super. 514, 529, 411 A.2d 1203, 1211 (1979).

The following facts are not in dispute. The plaintiff, Connie Endre, suffered injuries after tripping over a vacuum cleaner cord in a casino owned by the defendant and located in Atlantic City, New Jersey. Plaintiff’s medical treatment occurred in New Jersey. In addition, the plaintiff is domiciled and works in New Jersey. The defendant, Trump Marina, is a New Jersey corporation with offices in Trenton, Mercer County and their principal place of business is Atlantic City, New Jersey. The only connection that this case has to Philadelphia County is that the defendant regularly conducts business in Philadelphia. The defendant does not argue that Philadelphia is an improper forum or lacks personal jurisdiction over them, but that Philadelphia is an inconvenient forum.

The plaintiff, Ms. Endre, filed suit in the County of Philadelphia alleging that under the above facts she was legally entitled to damages. The defendant filed a petition, pursuant to 42 Pa.C.S. §5322(e), to dismiss the action on forum non conveniens grounds and accusing the plaintiff of “forum shopping” by filing suit in Philadelphia County. This assertion is based on the fact that both parties are from New Jersey, all of the witnesses work and/or live in New Jersey, and the accident in question occurred in the State of New Jersey. The lower court agreed with the defendant and granted an order dismissing the action to be refiled in a more convenient forum.

The law in this Commonwealth is that two general factors are to be considered in determining whether a suit should be dismissed for refiling in another jurisdiction under forum non conveniens. “(1) aplaintiff’s choice of the place of suit will not be disturbed except for weighty reasons, and (2) no action will be dismissed unless an alternative forum is available to the plaintiff.” Beatrice Foods Co. v. Proctor & Schwartz, 309 Pa. Super. 351, 359, 455 A.2d 646, 651(1982). In this Commonwealth, a defendant’s efforts in establishing the “weighty reasons” necessary for a forum non conveniens transfer have followed the precedent of such actions at the federal level. The court in Reyno v. Piper Aircraft Co., 630 F.2d 149, 158 (3d Cir. 1980) stated that “Pennsylvania cases dealing with forum non conveniens have mirrored federal law in all essential aspects.” These federal cases require that the defendant clearly produce facts that “(1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff’s convenience or (2) make trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems.” Koster v. American Lumbermens Mutual Casualty Co., 330 U.S. 518, 524 (1947). In this case, the defendant has shown the action to be inconvenient not only for themselves, but for the plaintiff as well. This lends weight to the defendant’s allegation that the plaintiff is engaging in “forum shopping” since the forum is inconvenient for the plaintiff as well.

Next, the court must weigh both the private and the public interests involved. Shears v. Rigley, 424 Pa. Super. 559, 565, 623 A.2d 821, 824 (1993). The private interest to be considered center around making the trial expedient and inexpensive. Id. In this case, pretrial preparation would have to be conducted in New Jersey and then once the trial began all of the witnesses would have to be brought in from New Jersey, both parties would have to travel from New Jersey each day, and the jury might have to be transported from Philadelphia to New Jersey in order to view the scene of the accident. The public interests to be considered include creating court congestion in Philadelphia County’s already crowded docket, imposing jury duty on citizens of Philadelphia County for an incident that occurred in another state, and choice of law problems. By allowing this action to be tried in Philadelphia County, the docket will be burdened by a case that has no connection to Philadelphia other than the defendant conducting some unrelated business in the county. Further, citizens of Philadelphia would be subjected to jury duty in an action where neither the plaintiff nor defendant are taxpaying citizens of the Commonwealth. More importantly, Philadelphia County courts would be obligated to conduct this trial under New Jersey state law because New Jersey has a greater interest in the application of its law to this action. “The contacts considered vital in determining the state of most significant relationship include the place where the injury occurred; the place where the conduct causing the injury occurred; the domicile, residence, nationality, place of incorporation, place of business of the parties; and the place where the relationship between the parties is centered.” Griffith v. United Air Lines Inc., 416 Pa. 1, 203 A.2d 796 (1964), citing Restatement (Second) Conflict of Laws 146, comment c. Because New Jersey pertains to each of these factors, the law of New Jersey would apply in this case.

Finally, 42 Pa.C.S. §5322(e) rather than providing for an intra-jurisdictional transfer between counties, allows for the termination of litigation in this Commonwealth. Therefore dismissal is proper under the statute and “because our courts lack the authority to transfer matters to courts of our sister states,” this makes dismissal of the action the only permissible result. Shears v. Rigley, 424 Pa. Super. 559, 563, 623 A.2d 821, 823 (1993), citing Alford v. Philadelphia Coca-Cola Bottling Co., 366 Pa. Super. 510, 513, 531 A.2d 792, 794 (1987). An action should not however be dismissed, no matter how inappropriate the forum, if the defendant cannot be subject to jurisdiction in other states. German v. AC & S Inc., 430 Pa. Super. 497, 513, 635 A.2d 159, 167 (1993), citing Rini v. New York Central R.R. Co., 429 Pa. 235, 239, 240 A.2d 372, 373-74 (1968). This is also true if the plaintiff’s cause of action would be barred by the statute of limitations in another jurisdiction “unless the court is willing to accept defendant’s stipulation that he will not raise this defense in the second state.” Id. An alternative forum does exist in the State of New Jersey. The defendant, in his petition for dismissal, agreed to waive any statute of limitations defense if the case is refiled in New Jersey and the plaintiff will not be barred from doing so until March of 2002.

In light of the evidence presented, the defendant has met its burden of demonstrating that Philadelphia County would be an inconvenient forum for this action. Therefore, the order of the lower court should be affirmed.


author: HALBERT, J.,

text:
    Blazquez v. Pennsylvania Financial Responsibility Assigned Claims Plan

      Mark C. Hanamirian, for plaintiff.

      Michael Senoyuit III, for defendant.
    August 18, 1999
   HALBERT, J.,

By agreement among the parties, this case was submitted to the court for resolution based upon the trial briefs and accompanying exhibits.

The controversy at issue involves plaintiff Luis Blaz-quez’ eligibility for benefits under the Pennsylvania Financial Responsibility Assigned Claims Plan. No factual issues require a credibility determination.

Plaintiff Blazquez submitted a report to the Pennsylvania Department of Transportation on May 3,1994, stating that his bicycle was struck by an unidentified taxicab, causing him to sustain certain injuries. The accident was alleged to have occurred nearly a month beforehand, on April 5, 1994.

The plan refused to provide benefits, contending that the alleged accident was not reported to the police or a proper governmental authority within 30 days as required under 75 Pa.C.S. § 1702. The court agrees with the plan’s position that PennDOT does not qualify as a “proper governmental authority” for purposes of the 30-day reporting requirement, but finds this to be a close question requiring clarification by higher court authority.

The purpose underlying the section 1702 reporting requirement is the prevention of fraudulent claims. Owens v. The Travelers Insurance Co., 450 Pa. Super. 242, 675 A.2d 751 (1996); see also, Jackson v. Pennsylvania Financial Responsibility Assigned Claims Plan, 394 Pa. Super. 274, 575 A.2d 626 (1990). By reporting an incident to the police, there is an opportunity to respond to and investigate the circumstances of an accident.

In certain circumstances, it is has been determined to be sufficient to report an accident to a governmental authority other than the police. When a governmental authority is involved in responding directly to an accident scene and taking firsthand reports, there is no question that a report taken by it satisfies the reporting requirement under section 1702. See Gunter v. Constitution State Service Co., 432 Pa. Super. 295, 638 A.2d 233 (1994), alloc. denied, 539 Pa. 678, 652 A.2d 1324 (1994). As such, a report filed with the Philadelphia Fire and Rescue Squad in response to an accident call has been held sufficient for preserving plan benefits. Id.

The issue becomes more complicated in other situations. In Owens, supra, it was determined that a report filed with a governmental agency such as the Pennsylvania Department of Labor was insufficient to preserve plan benefits since the agency failed to qualify as a “proper governmental authority” under section 1702.

The rationale for such determination was twofold. First, the Pennsylvania Department of Labor does not partake in direct responses to accident scenes and is not in a position to observe injuries firsthand, which is necessary for preventing fraudulent claims against the plan. Second, governmental agencies like the Department of Labor are not generally involved in reporting or investigating motor vehicle accidents, which is also highly relevant in the fraud prevention context. Id. at 245-46, 675 A.2d at 752-53.

It is unfortunate that PennDOT does not fit as neatly into any category as either the Philadelphia Fire and Rescue Squad or Department of Labor.

While PennDOT is vested with statutory power to conduct accident investigations and compiles statistical data on accidents, this generally is undertaken for safety reasons and PennDOT is not ordinarily involved in interviewing motorists and assessing fault. Shoyer v. City of Philadelphia, 96 Pa. Commw. 75, 506 A.2d 522 (1986) (discussing PennDOT’s investigative mandate under 75 Pa.C.S. §3754). The functions of PennDOT therefore stand apart from that of an investigative body such as a municipal police department.

Unlike a rescue squad or accident response team, PennDOT does not have employees on the scene of an accident who have an opportunity to directly observe an injured party and take a firsthand report from an injured pedestrian or motorist.

While these distinctions exist, there is no doubt that PennDOT’s nexus to automobile accidents is far more direct than an agency such as the Pennsylvania Department of Labor and that a motorist who does not immediately report an accident to the police may, as a matter of common sense, believe that later reporting it to PennDOT will preserve claims involving an unidentified/ uninsured vehicle.

In the course of assessing whether the Philadelphia Fire and Rescue Squad and Department of Labor qualify as “proper governmental authorities” for reporting purposes, the Superior Court, in both Gunter, supra and Owens, supra, comment upon PennDOT in this context.

This court is unable to discern the impact of the discussion given what would appear to be disparate results reached in these two cases by different Superior Court panels and given that the matter was addressed in dicta. Had there been a direct dispute involving this specific question, then there would have been an opportunity to assess the issue in a comprehensive manner.

In Gunter, the assigned claims plan evidently acknowledged that PennDOT would be a proper governmental authority while arguing that the Philadelphia Fire and Rescue Squad did not meet the definition. The Superior Court, however, seemingly rejected this concession, finding that reference to the terms department and proper governmental authority” were exclusive from one another. In apparently determining that the term “proper governmental authority” does not include PennDOT from a definitional perspective, the Superior Court panel explicated:

“Likewise, we do not subscribe to the view espoused by the appellant that the Pennsylvania Department of Transportation would be the only other ‘proper governmental authority’ to whom an accident could be reported. ... We find most compelling the fact that in the definitional section of the MVFRL (75 Pa.C.S. §1702) both terms appear: ‘Department,’ which includes the Department of Transportation or Insurance Department, and ‘uninsured motor vehicle,’ whereby the latter makes no reference to the term ‘department’ as the optional governmental body (in addition to the police) to which a report could be made if an accident by an unidentified vehicle occurred. Rather, the legislature inserted the phrase ‘proper governmental authority’ as the alternative source with whom a report could be lodged involving an ‘uninsured motor vehicle.’” Id. at 305, 638 A.2d at 238.

Reaching what would appear to be a different position, a separate Superior Court panel in Owens adopted the viewpoint that PennDOT was a proper source for reporting accidents, stating: “if a particular governmental authority is not one that is ordinarily charged with the reporting or investigating of motor vehicle accidents, such as the police or the Department of Transportation, we must examine whether it is in a unique position to prevent fraud as effectively as the police.” 450 Pa. Super. at 246, 675 A.2d at 753.

The trial court is bound to follow higher court authority on issues such as the one presented. Given that the question at bar was only addressed in dicta, and that even in that context, it is not clear as to whether a specific position has been adopted on the matter by the higher courts, we find it appropriate to address it anew.

Throughout case law authority, there is a repetitive theme of fraud prevention underlying the 30-day reporting requirement. Keeping this in mind, the court, after weighing all factors presented, does not find that reporting an accident to a statewide agency such as PennDOT will play any meaningful role in eliminating the threat of fraud unless PennDOT promptly relays any reports filed with it to local police and law enforcement authorities.

Legitimizing such reports may, in fact, open the door to a practice whereby local municipal law enforcement is entirely circumvented. When there is no other reliable means by which to verify the accident, such as through a report filed with a fire and rescue squad responding to the accident, the possibilities of fraud abound.

In turning to the factual circumstances presented, one finds that while the plaintiff most certainly was injured, there is no saying whether such injuries were caused as stated or involved an unidentified cab. No corroborative evidence validating the plaintiff’s claim is presented.

This matter could have been investigated had the accident been timely reported to the police or a proper gov-emmental authority. Had an entity such as a municipal rescue squad responded and taken a report, there would have been firsthand contact with the claimant and an opportunity for such entity to relay information to the police for follow-up investigation.

Aside from the fraud issue, it goes without saying that if the accident occurred, as stated, and had been timely reported, the police would have had the opportunity to attempt to identify the cab company at issue. Any chance of successfully identifying the alleged culprit, which may be minimal in the first place, is further diminished when a party, such as the plaintiff, waits nearly a month before reporting the accident and reports it to PennDOT.

Based upon the foregoing considerations, the court finds in favor of the plan, denying the plaintiff’s coverage claim.

      . Pursuant to sections 3747, 3753 and 3754 of title 75, PennDOT is charged with compiling statistical data and reviewing accident reports for accident prevention purposes, traffic safety, and the informational needs of state and federal agencies. Nowhere is PennDOT directed to investigate specific accidents for purposes of fault assessment or determining the identity of motorists.


author: WALLACH MILLER,

text:
    Schreck v. PennDOT

      C.P. of Monroe County,
    no. 5748 Civil 1996.

      Christine S. Lezinski, for plaintiff.

      William A. Slotter, for PennDOT.
    May 13, 1999
   WALLACH MILLER,

Myron Lee Schreck was a passenger in a vehicle driven by George Diem on September 21, 1994 which was involved in a collision on Interstate Route 380 in Coolbaugh Township, Monroe County. The two men were traveling eastbound at about 9:10 a.m. when, according to deposition testimony, they were in the passing lane following close behind a tractor-trailer to block the sun. When the tractor-trailer turned into the right-hand lane, Mr. Diem testified that the glare of the sun was strong and he reached for his windshield visor. The next thing he remembers is hitting the back end of a PennDOT truck that was the middle truck of a three-truck pothole repair crew. Mr. Schreck was injured in the accident.

Mr. Schreck and his wife filed a complaint against the Commonwealth of Pennsylvania, Department of Transportation on October 23,1996 requesting that he be compensated for his injuries due to PennDOT’s negligence and also that Mrs. Schreck be compensated for loss of the consortium of her husband due to his injuries.

After the depositions of the parties were taken, PennDOT filed a motion for summary judgment on March 8,1999. The legal basis of their motion is that the doctrine of sovereign immunity applies in this case and therefore the Commonwealth is not liable for any injuries caused. Plaintiffs argue that a material issue of fact is present in applying the doctrine and therefore the motion cannot be granted. Oral argument was held on May 3, 1999, and both parties filed extensive and well-researched briefs on the legal issues.

Sovereign immunity is an ancient doctrine perhaps best described by the late Pennsylvania Supreme Court Justice Musmanno in his dissenting opinion in Husser v. Pittsburgh School District, 425 Pa. 249, 254, 228 A.2d 910 (1967). In that case he wrote:

“The theory of governmental immunity for the tor-tious acts of governmental representatives, employes and agents is founded upon the presumption that a sovereign power cannot be adjudged in error, and this idea in turn stems from the meretricious formula that a king can do no wrong . . . Despite the fact that America discarded kings nearly two centuries ago and that the English monarch is now but an innocuous geniality, the common law deriving from British sovereigns still proclaims that the sovereign power can do no wrong.”

Our constitution codified the doctrine and the Commonwealth continues to enjoy this immunity, but it is no longer absolute. 1 Pa.C.S. §2310. Our legislature has created certain exceptions to this doctrine and has defined certain acts which will not permit the Commonwealth to raise this defense. 42 Pa.C.S. §8522.

The cause of action against PennDOT in this case relies entirely on the allegation that the movement of the trucks of the pothole repair crew caused the accident in which plaintiff husband was injured. This allegation requires a plaintiff to prove that his case falls within one of the exceptions enumerated in the above statute. He must prove that (1) the cause of action is one for which recovery may be had at common law or by statute; (2) the cause of action is one of nine enumerated exceptions to sovereign immunity; and (3) the plaintiff’s injuries were caused by the negligence of the Commonwealth defendant.

The plaintiffs argue that several exceptions apply. These exceptions are as follows:

“Section 8522. Exceptions to sovereign immunity....
“(b) Acts which may impose liability — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by:
“(1) Vehicle liability — the operation of any vehicle in the possession or control of a Commonwealth party....
“(3) Care, custody, or control of personal property— The care, custody, or control of personal property in the possession or control of Commonwealth parties, including Commonwealth-owned personal property and property of persons held by a Commonwealth agency ...
“(4) Commonwealth real estate, highways and sidewalks — A dangerous condition of Commonwealth agency real estate and sidewalks, including... highways under the jurisdiction of a Commonwealth agency ...
“(5) Potholes and other dangerous conditions — a dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements ...42 Pa.C.S. §8522.

On the day of the accident, three vehicles were in use by PennDOT. The first truck is called a “Roscoe” and it is used to fill the potholes in the roadway. Behind the Roscoe was a truck with an attached attenuator which is a safety device that crumples in case of an accident to prevent greater injury than could result if the truck itself were hit. About 1,500 feet behind the attenuator truck was a third truck with a flashing arrow board attached to it to warn motorists in the passing lane to change lanes. Additionally, one of the PennDOT employees, Edward Tanner, was in front of the third truck acting as a flagman and motioning drivers into the right lane.

The plaintiffs first argue that the vehicle exception applies since the Commonwealth vehicles were “in operation” at the time of the accident. In opposition to this, PennDOT argues that since the attenuator truck was not moving at the time it was hit by Mr. Diem, it was not a “vehicle in operation” and the exception does not apply.

Our Pennsylvania Supreme Court has defined “operation” in the context of governmental or sovereign immunity to mean actual motion of the vehicle. Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988). The injury must be caused by movement of the vehicle or a moving part of the vehicle before the vehicle exception will apply. SEPTA v. Simpkins, 167 Pa. Commw. 451, 648 A.2d 591 (1994).

Depositions were taken of all the parties involved in the accident and at the scene at the time it occurred. No one testified that the attenuator truck was moving at the time it was struck. Its driver, David Witt, testified that it was stopped at the time of the accident. One employee, Dwayne Bartleson, testified that the vehicle he was sitting in was moving at the time of the accident. A close reading of his testimony shows that he was in the Roscoe and not in the attenuator truck. Since it is not alleged that the Roscoe caused the plaintiff’s injuries, we find the movement of this vehicle irrelevant to this inquiry.

Pennsylvania courts have held that even when a vehicle is in use at the time of an accident, if it is not moving at the time an injury occurs, the vehicle exception does not apply. Warrick v. Pro Cor Ambulance Inc., 709 A.2d 422 (Pa. Commw. 1997) (temporary stop not operation of a vehicle). Plaintiffs, however, cite Vogel v. Longer, 131 Pa. Commw. 236, 569 A.2d 1047 (1990) and argue that this case is applicable. A careful reading of Vogel reveals that there was an affirmative act on the part of the bus driver in that case by signaling another driver that it was safe to go into an intersection which the Commonwealth Court found to constitute operation of a vehicle. See also, White v. School District of Philadelphia, 687 A.2d 4 (Pa. Commw. 1997) (bus driver indicated to child that it was safe to cross street).

We find no factual dispute that the attenuator truck was not moving at the time it was rear-ended. There are no allegations that the driver of this truck made an affirmative gesture which would qualify as “operation” under the plaintiffs’ cited cases. There is, in fact, no testimony that the attenuator truck and its occupants were at anything other than a standstill. Thus, we find that the attenuator truck cannot qualify as a vehicle in operation for the purposes of the vehicle exception to sovereign immunity.

Plaintiffs next ask us to apply the personal property exception to sovereign immunity to hold PennDOT liable for plaintiff husband’s injuries. Their argument recognizes that the attenuator truck does not qualify as personal property but they argue that signs should have been used by PennDOT to warn approaching traffic of the pothole repair crew and that these signs are personal property of the Commonwealth. Since PennDOT failed to use these signs, plaintiffs argue that this failure may result in liability under section 8522(b)(3). We can find no authority for this proposition.

The personal property itself must be in some manner responsible for the injury. Warnecki v. SEPTA, 689 A.2d 1023 (Pa. Commw. 1997). All deposition testimony reveals that PennDOT was in compliance with regulations regarding the use of signs at this type of construction site. The third vehicle which carried the flashing arrow board was, in fact, an optional safety device that the foreman elected to use that day. It was admitted that no signs were placed on the right berm of the interstate. However, Mr. Tanner, the foreman, testified that such signs are not practical and not required in this type of operation since an employee would have to continually cross the interstate each time the trucks moved to a new pothole. Again, since the injuries were not caused by any personal property in use or owned by PennDOT, we do not find section 8522(b)(3) applicable to these facts.

Next, the plaintiffs cite subsection (b)(4), commonly called the real estate exception, as a means of imposing liability on PennDOT. This exception requires that there must be a dangerous condition of the realty in question. In other words, the dangerous condition must derive, originate from or have as its source the Commonwealth realty. Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989).

In our facts, plaintiff husband was not injured by a pothole but rather when the truck in which he was a passenger ran into the rear of a vehicle which was behind a vehicle fixing a pothole. A parked or stopped vehicle, if indeed considered a dangerous condition, would be a condition on the realty, not one of the realty. Thus, under the rule of law set forth by our Supreme Court in Snyder, we find that this exception does not apply.

Finally, the plaintiffs argue that subsection (b)(5) applies because the presence of the PennDOT vehicles on the road created a dangerous condition. PennDOT argues that this section cannot apply because, even assuming that the stopped vehicle created a dangerous condition, it was not a condition created by natural elements. Reading the deposition testimony in the light most favorable to the non-moving party as we must do when ruling on a motion for summary judgment, we must agree with PennDOT’s characterization. We do not find plaintiffs’ argument that “but for” the dangerous condition, the pothole which they argue was caused by natural elements, the trucks would not have been present, to be persuasive. Plaintiffs have not submitted any legal authority to bolster this argument and we were not able to uncover any in our research.

One final argument put forward by the plaintiffs involves as what they characterize as a “judicial admission” made by PennDOT in the answer to their complaint. A judicial admission is not evidence but a formal pleading in the case, made by a party or counsel, which has the effect of withdrawing a fact from issue and dispensing with need for further proof of the fact. Packel & Poulin, Pennsylvania Evidence, section 805.5, at 666 (First Ed. 1987). A judicial admission is conclusive and may not be contradicted or explained. Id. The source of this admission, according to plaintiffs, is in PennDOT’s answer to paragraph 8 of plaintiffs’ complaint which alleges: straction, maintenance, and/or repair work on Interstate 380 eastbound in Coolbaugh Township, Monroe County. This construction, maintenance, and/or repair work included pothole patching in the left-hand travel lanes of Interstate 380 eastbound. While performing said construction, maintenance and/or repairs, vehicles and equipment owned, controlled, and/or operated by the defendant, PennDOT, blocked the left-hand travel lane of eastbound 1-380.”

“(8) At the aforementioned time and date, the defendant, PennDOT, was engaged in the performance of con-

PennDOT filed an answer which admitted the allegations of this paragraph. While we agree with paintiffs that PennDOT in their answer admitted that on the day of the accident the vehicle “was owned, controlled, and/ or operated” by the defendant, we do not find that this constitutes an admission that the attenuator truck was “in operation” as defined by appellate case law to qualify as an exception to the immunity statute.

Summary judgment may be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pennsylvania Gas & Water Co. v. Nenna & Frain Inc., 320 Pa. Super. 291, 467 A.2d 330 (1983). Since we can find no exception to the sovereign immunity statute present in this case, we find that the defendant, PennDOT, is entitled to judgment as a matter of law. Accordingly, we enter the following order.

ORDER

And now, May 13,1999, defendant’s motion for summary judgment is granted.


author: WALLACH MILLER, J.,

text:
    Leavitt v. Brookmont Health Care Center Inc.
    C.P. of Monroe County,
    no. 9290 Civil 1997.

      Steven R. Serfass, for plaintiff.

      William J. Mundy, for defendant.
    March 12, 1999
   WALLACH MILLER, J.,

This action was brought by Cynthia Leavitt for personal injuries she allegedly sustained as a result of alleged negligent and reckless care provided by Brookmont Health Care Center Inc. Brookmont is a nursing home facility located in Effort, Monroe County, Pennsylvania.

Leavitt was a resident at Brookmont from June 27, 1996 to October 4, 1996. She alleges that during that time, she developed decubitis ulcers on the heels of both feet. She further alleges that as a result of the failure of the defendant’s staff to treat the ulcers, they became infected and she required hospitalization following her discharge.

Leavitt brought this action by filing a praecipe for writ of summons on December 4,1997. A complaint was filed on March 20, 1998.

Brookmont filed preliminary objections to the complaint on March 30,1998, objecting to various counts of the complaint, including the one for punitive damages, and asked that the counts be stricken or that Leavitt be required to file a more specific pleading. Those preliminary objections were sustained by this court on September 17, 1998 and Leavitt was granted leave to file an amended complaint. She did so on October 6,1998, with Brookmont again filing preliminary objections. After communication between counsel, Leavitt filed a second amended complaint on November 30, 1998. In her second amended complaint, she again asserted a claim for punitive damages.

Brookmont filed preliminary objections to the second amended complaint on December 10, 1998, requesting that the court dismiss this count with prejudice and strike any allegations of recklessness from the complaint. Brookmont also requested that $1,000 in counsel fees be awarded as a sanction for the plaintiff’s conduct in asserting the punitives claim. Oral argument was heard on the matter on March 1, 1999. Both parties submitted briefs.

Brookmont argues that Leavitt, in her second amended complaint, has again failed to allege facts which would justify the imposition of punitive damages. Punitive damages may be imposed for conduct that is outrageous, because of a party’s evil motive or reckless indifference to the rights of another. Restatement (Second) of Torts §908(2); Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963). Reckless indifference has been defined as existing where the “actor knows, or has reason to know, ... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.” SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 494, 587 A.2d 702, 704 (1991).

In her second amended complaint, Leavitt has essentially alleged that Brookmont knew of the condition of her heel ulcers, that the condition of the ulcers threatened her health, safety and appearance, and that Brookmont failed to properly treat her condition. The plaintiff further alleges that such actions were taken in conscious disregard of the risks posed. As Leavitt has not alleged an evil motive on the part of Brookmont, we must address whether she has averred facts which would support a claim of reckless indifference.

Leavitt has averred that Brookmont failed to properly treat her ulcers. A failure to properly treat her wounds sounds in pure negligence and not the reckless disregard for the rights of the plaintiff that must be averred. If the plaintiff had alleged that the defendant was aware of her condition and failed to treat her at all, such facts could possibly have supported a claim for punitive damages. She did not, however, and we must assume this was because such facts do not exist.

Leavitt has also averred in her claim for punitive damages that Brookmont failed to disclose her condition to her, her family physician and the personal care home to which she was being transferred. Brookmont objects, asserting that there is no such duty to inform. Leavitt has not cited any law which supports the proposition that a health care facility has a duty to inform a patient’s family, family physician or transferring facility of her condition, and we have not been able to locate any through our own research. Pennsylvania courts have recognized a duty to inform third parties of a patient’s condition. Troxel v. A.I. DuPont Institute, 450 Pa. Super. 71, 675 A.2d 314 (1996) (duty is owed by physician to third persons in instance where physician treats patient with contagious disease). However, in such cases, the duty to inform was necessitated by the need to safeguard the health of others. DiMarco v. Lynch Homes—Chester County Inc., 525 Pa. 558, 583 A.2d 422 (1990) (holding physician owed duty to patient’s sexual partner where physician failed to advise patient that hepatitis exposure could be spread by sexual conduct). Such is not the case here.

The purported duty to inform is not claimed as having been breached in the count for negligence and is only included in the claim for punitive damages. We find this curious, as breach of a recognized duty is one of the elements of negligence. Punitive damages may not be awarded for conduct that is found to constitute ordinary negligence. Houston v. Texaco Inc., 371 Pa. Super. 399, 538 A.2d 502 (1988). Leavitt has averred that the defendant deliberately withheld the information of her condition when she was released. Even if the failure to inform is a recognizable duty, without more facts, such conduct does not rise above that of negligence, and the defendant’s request to dismiss the plaintiff’s claim for punitive damages must be granted and any allegations of recklessness on the part of the defendant stricken from the complaint.

Lastly, the defendant has requested that the plaintiff be subjected to a $1,000 sanction for asserting a frivolous claim for punitive damages. Attorney’s fees may be awarded as a sanction when the conduct of a party in initiating a matter is arbitrary, vexatious or in bad faith. 42 Pa.C.S. §2503(9). A party’s conduct has been defined as “arbitrary” if based on random or convenient selection or choice rather than on reason or nature, “vexatious” if the suit was filed without sufficient grounds in either law or in fact and if the suit served the sole purpose of causing annoyance, and in “bad faith” if the suit was filed for purposes of fraud, dishonesty or corruption. Thunberg v. Strause, 545 Pa. 607, 682 A.2d 295 (1996).

While we do not find that Leavitt has averred sufficient facts to assert a claim for punitive damages, we do not find that her conduct in filing such a claim rises to the level of arbitrary, vexatious or in bad faith. Leavitt was granted leave to amend her complaint to support a claim for punitive damages, if she could. She was unable to, after three attempts. Therefore, the defendant’s request for attorney’s fees as a sanction is denied. Accordingly, we enter the following order.

ORDER

And now, March 12, 1999, defendant’s preliminary objections are sustained and allegations of recklessness are hereby stricken from the complaint, and the claim for punitive damages is dismissed with prejudice. Furthermore, defendant’s request for counsel fees as a sanction is denied.

      . A decubitis ulcer is defined as “an ulcer forming on the part of the body exposed to pressure in a patient who must lie in bed for a long period of time. Such ulcers usually develop on the buttocks and in the back of the heels.” Schmidt, Attorney’s Dictionary of Medicine (1992).


text:
    Matlock v. Fleming
    C.R of Monroe County,
    no. 1889 Civil 1995.

      John R. Vivian Jr., for plaintiff.

      Richard R Kovacs, for defendant Fleming.

      Francis G. Wenzel Jr., for defendant Kenworth Trucking.
    March 11, 1999
   WALLACH MILLER, J.,

On September 16, 1994, a car driven by Dorothy Matlock was traveling north on Route 209 when a tandem came loose from a tractor traveling in the opposite lane of travel. The tandem crossed the road and hit Mrs. Matlock’s car. Riding in the Matlock car as passengers were Mrs. Matlock’s husband, Robert, and their nephew, Paul Hughes. The plaintiff, his wife and Mr. Hughes allege various injuries as a result of the collision.

At the time of the accident, Mrs. Matlock had in effect an automobile insurance policy in which she had selected the limited tort option. This selection limits her recovery in case of an accident to economic damages unless she suffers a serious bodily injury. The present action was initiated by complaint on July 11,1995, wherein the plaintiff alleged causes of action against several defendants for economic and noneconomic damages. Another action involving the same parties was initiated by a writ of summons issued on September 12,1996, at docket number 6029 Civil 1996. A complaint was filed in the second action on October 18, 1996. The only difference between these two actions is that E. F. Corporation d/b/a West Motor Freight of Pa. was named as an additional defendant in the 1996 action and was dismissed as a party by an order of court on November 9, 1998. On October 28,1998, additional defendant Kenworth.Northwest Inc. was dismissed with prejudice from both actions by stipulation of the parties.

Defendants Robert Fleming and Robert Fleming Transport Company filed a motion for summary judgment on the issue of plaintiff’s noneconomic damages on January 11, 1999. The defendants argue that the plaintiff is bound by his wife’s limited tort election and may not recover unless he suffered a serious bodily injury as a result of the 1994 car accident. The defendants further assert that the plaintiff did not suffer a serious injury and they are entitled to summary judgment on the issue of the plaintiff’s noneconomic damages.

Thus, the issues presented before this court are whether the plaintiff was bound by his wife’s election of limited tort and, if so, whether plaintiff has suffered a serious injury or defendant is entitled to summary judgment and the plaintiff should be restricted to recovering only any economic damages sustained in the car accident. Oral argument was held on March 1, 1999 and we are now prepared to dispose of this matter.

The Motor Vehicle Financial Responsibility Law governs who is and is not bound by a limited tort election. Under the provisions of the MVFRL, an insured who has elected a limited tort option is bound by that election, with a few exceptions which are not applicable here. “Insured” is defined as any individual residing in the household of the named insured who is a spouse or other relative of the named insured. 75 Pa.C.S. §§1702(2), 1705(f). In the present case, the plaintiff was the husband of the named insured party, Dorothy Matlock, and the plaintiff was residing with her at the time of the accident.

Another section of the MVFRL provides that “an individual who is not an owner of a currently registered private passenger motor vehicle and who is not a named insured or insured under any private passenger motor vehicle policy shall not be precluded from maintaining an action for noneconomic loss or economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law.” 75 Pa.C.S. §1705(b)(3). Plaintiff has-cited this passage and argues that, as he was not named on the registration of his wife’s or any other car and was not named on his wife’s or any other insurance policy and, in fact, did not have a driver’s license, he cannot be precluded from suing for noneconomic damages. We disagree.

It should first be noted that the plaintiff does not have a driver’s license due to a driving under the influence conviction which occurred several years ago. As an unlicensed driver, it is unlikely that he would be able to get automobile insurance in his own name. With respect to application of the MVFRL, the plaintiff’s situation is not unlike that of a minor child not of driving age, who would presumably not be named on the title of an automobile or an insurance policy. Case law in Pennsylvania has held that members of the named insured’s household are bound by a limited tort election. Hames v. Philadelphia Housing Authority, 696 A.2d 880 (Pa. Commw. 1997) (minor children bound by mother’s deemed limited tort election). We see no reason why the same should not hold for a man prohibited by law from driving and whose wife has selected limited tort coverage.

The plaintiff has cited Ickes v. Burkes, 713 A.2d 653 (Pa. Super. 1998), as authority for the proposition that one spouse is not bound by the other’s election of limited tort coverage. However, the facts in Ickes differ from ours. There, wife alleged injuries from an accident while a passenger in husband’s vehicle. He did not have any insurance coverage on the vehicle. Wife was not precluded from recovering both noneconomic and economic damages on the grounds that her husband owned and operated an uninsured, registered vehicle at the time of the accident. Id. (emphasis added) Here, we have a spouse whose vehicle was insured, and that spouse elected limited tort coverage. We find that “insured,” as it is defined in the MVFRL, covers the plaintiff in the present case and we therefore hold that he is bound by his wife’s limited tort election.

We must now turn to the issue of whether the plaintiff sustained a serious injury in the 1994 accident or the defendants are entitled to a grant of summary judgment with respect to the plaintiff’s claims for noneconomic damages.

Summary judgment may be properly granted when there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. Pa.R.C.P. 1035.2. With respect to the issue of the plaintiff’s election of limited tort coverage, if he cannot show that he suffered a serious bodily injury as defined by the applicable statute, summary judgment may be properly granted as to his claims for noneconomic damages stemming from the accident. Under Pennsylvania law, a serious injury is a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement. 75 Pa.C.S. §1701 et seq.

Under the Superior Court’s holding in Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), the determination of whether a limited tort elector had suffered a serious injury was one which must initially be made by the trial court judge. This was somewhat changed by the Pennsylvania Supreme Court in Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998). The court held that the threshold determination was to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained. The standard for deciding whether reasonable minds could not differ is to review (1) what body function was impaired, and (2) whether the impairment was serious. An impairment need not be permanent to be serious.

In Washington, the Pennsylvania Supreme Court applied this standard to the facts presented and upheld the lower court’s grant of summary motion. The body function that was impaired in Washington was the appellant’s right foot. Due to his injuries, he missed four to five days of work from one job and one to two months of work from another job. One year after the accident, he still complained of pain and testified that his ankle was often swollen. However, he was able to perform his job responsibilities as he had been able to prior to the accident. The court found that any lingering impairment was such that reasonable minds could not differ in finding that it was not serious, as aside from having to use a riding mower, the appellant was able to engage in his normal daily activities.

The question becomes whether, under the standard outlined in Washington, reasonable minds could differ on the conclusion that the plaintiff did or did not suffer a serious bodily injury. Under the facts here presented we find that they could not.

In our case, the day after the accident, the plaintiff went to Palmerton Hospital complaining of leg, neck and back pain. X-rays showed everything was normal and he was given Tylenol with codeine. After four visits to Dr. Mehesh Chhabria, a neurologist, he was referred to Dr. James Kim, a psychiatrist, who treated him with physical therapy and stretching exercises for several months. Of the therapy sessions scheduled, the plaintiff failed to appear for a third of them. He was also treated by Dr. Yasin Khan with three steroid injections. By June 1995, less than a year later, he reported 80-90 percent relief from pain.

Plaintiff claims in his brief opposing summary judgment that he had to give up his job as a mechanic due to the accident. However, at a deposition conducted on March 6, 1998, he testified that he was unemployed at the time of the accident. According to his deposition testimony, his last regular employment was in 1990, four years before this accident. He was fired from that job. Between that time and the 1994 accident, plaintiff did some automotive repairs “with a buddy” but has no record of any income. In April 1997, he found work as a heavy equipment operator, working 30 to 50 hours a week. The plaintiff testified that, although not under a doctor’s orders to refrain from such activity, he can no longer run around and play with his children because he is afraid he will re-injure his back. The most tangible remaining effect of the accident is that his treating physician has advised him to not lift anything over 40 pounds or pull or push anything heavy. He also wears a back brace, which he purchased from a medical supply store, although it is unclear from his testimony whether this purchase was made on the advice of his physician.

We are constrained to find that the plaintiff has suffered an injury. The impairment suffered was in his lower back. However, we do not find, after reviewing the depositions, that the plaintiff has suffered a serious impairment, and we believe that reasonable minds could not differ on that issue. Accordingly, we enter the following order.

ORDER

And now, March 11, 1999, on the issue of plaintiff Robert Matlock’s claims for noneconomic damages, the motion for summary judgment of defendants Robert M. Fleming and Robert Fleming Transport Company is granted.


author: LEVIN, J.,

text:
    Jeffcoat v. Hawes

      C.P. of Philadelphia County,
    no. 9811-3086.

      M. Mark Mendel, for plaintiff.

      J. Shane Creamer, for defendant Hawes.

      David F. C. Griesing, for defendant PFMC.

      Peter F. Vaira, for defendant Martin.
    August 13, 1999
   LEVIN, J.,

Before this court are defendants’ preliminary objections to plaintiff’s amended class action complaint and all responses thereto. The court held oral argument on the merits of defendants’ preliminary objections on August 5, 1999. The court sustains defendants’ preliminary objections under Pa.R.C.P 1028(a)(5) because plaintiff and other rate-paying customers of PGW lack the capacity to sue, as they have no standing to pursue their claims against defendants.

INTRODUCTION

Terra Evans Jeffcoat, as a Philadelphia resident and purchaser of natural gas services from Philadelphia Gas Works, has filed a class action complaint on behalf of herself and other rate-paying customers of Philadelphia Gas Works against current and former directors of Philadelphia Facilities Management Corporation. Jeffcoat has sued defendants for breach of contractual, public, and fiduciary duties because defendants allegedly failed to manage PGW in an efficient, lawful and proper manner. (Am. compl. ¶1.)

Preliminary objections in the nature of a demurrer are appropriate when a complaint is legally insufficient or when plaintiff lacks the capacity to sue. Pa.R.C.P. 1028(a)(4), (a)(5).

In ruling on preliminary objections in the nature of a demurrer the court must accept the truth of “[a]ll material facts set forth in the complaint as well as all inferences reasonably deducible therefrom.... The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.” McMahon v. Shea, 547 Pa. 124, 129, 688 A.2d 1179, 1181 (1997). See also, Moser v. Heistand, 545 Pa. 554, 559, 681 A.2d 1322, 1325 (1996); Mahoney v. Furches, 503 Pa. 60, 66, 468 A.2d 458, 461-62 (1983).

Jeffcoat and other rate-paying customers of PGW lack standing to pursue claims against defendants because the management agreement does not reveal an intention by both PFMC and the City of Philadelphia that PFMC would be liable to ratepayers for breaching the management agreement. “[A] promisor who contracts with a government or governmental agency to do an act for or render service to the public is not subject to contractual liability to a member of the public for consequential damages resulting from performance or failure to perform unless (a) the terms of the promise provide for such liability[.]” Drummond v. University of Pennsylvania, 651 A.2d 572, 579 (Pa. Commw. 1994). (footnote omitted) “When a governmental contract is at issue, the test for whether a member of the public is a third-party beneficiary must be strictly applied.” Id. at 578 (citing Clifton v. Suburban Cable TV Company Inc., 434 Pa. Super. 139, 642 A.2d 512 (1994)). Nothing in the management agreement shows that PFMC or the city intended to permit the general public or ratepayers to impose liability on PFMC or the city for either party’s breach of the management agreement. The management agreement expressly provides that “PFMC shall manage and operate all the property real and personal collectively known as the Gas Works, for the sole and exclusive benefit of the city ....” (Management agreement §1, ¶1, at p. 1.) The management agreement also provides that “[t]he Gas Commission shall have the responsibility for the overseeing of the operation of the Gas Works by the company. All power not specifically granted to the company shall reside in the Gas Commission.” (Management agreement §VI, ¶9, atp. 10.) The Gas Commission also “fix[es] and regulate [s] rates and charges for supplying gas to customers. . . .” (Management agreement §VII, ¶1^), at p. 10.) In light of these provisions, the court is convinced that the management agreement does not confer standing upon individual rate-paying customers of PGW.

There are no other bases from which the court could grant rate-paying customers standing because defendants’ actions have not gone unchallenged as city council, the Philadelphia District Attorney’s office and the city comptroller are investigating PFMC’s management of PGW. (PFMC’s mem. at 6.) A person who lacks a substantial, direct and immediate interest in a controversy may still be granted standing if the issue is likely to escape judicial review. Sprague v. Casey, 520 Pa. 38, 43, 550 A.2d 184, 187 (1988). An issue is likely to escape judicial review when “those directly and immediately affected by the complained of conduct were beneficially affected as opposed to adversely affected.” Id. at 44, 550 A.2d at 187. In addition, before dismissing plaintiff’s complaint for lack of standing, the court can also consider (1) the appropriateness of judicial relief; (2) the availability of redress through other channels; or (3) the existence of other persons better situated to assert the claim. Id. at 44, 550 A.2d at 187 (citing Application of Biester, 487 Pa. 438, 409 A.2d 848 (1979). It is hard for this court to fathom how the city could be or has been beneficially affected by the alleged mismanagement of PGW. That the Gas Commission was not vigilant enough to prevent the alleged mismanagement or has not vigorously and expediently pursued means to remedy the defendants’ alleged misconduct does not mean the city has benefited from PFMC’s actions.

Similarly, the other exceptions to the standing requirement do not apply. First, the Gas Commission is the appropriate forum to challenge gas rates. Byer v. Peoples Natural Gas Co., 251 Pa. Super. 75, 79-80, 380 A.2d 383, 386 (1977); Public Advocate v. Philadelphia Gas Commission, 544 Pa. 129, 133, 674 A.2d 1056, 1059 (1996). Second, as a contracting party to the management agreement, the City of Philadelphia is better situated to assert claims for breaches of that contract. Consequentially, the exceptions to the standing requirement are inapplicable, and thus plaintiff and other rate-paying customers of PGW lack standing to pursue claims against PFMC and its current and former directors.

Accordingly, the court enters the appended order.

ORDER

And now, August 13,1999, having considered defendants’ preliminary objections to plaintiff’s amended class action complaint, all responses thereto, and after hearing oral argument on the merits of defendants’ preliminary objections, the court orders that:

Defendants’ preliminary objections to plaintiff’s complaint are sustained.

Plaintiff’s amended class action complaint is dismissed with prejudice.

      . Philadelphia Facilities Management Corporation is a private nonprofit corporation that manages the collection of assets known as PGW under a contract (i.e. management agreement) with the City of Philadelphia which owns the assets. Philadelphia Facilities Management Corp. v. Biester, 60 Pa. Commw. 366, 375, 431 A.2d 1123, 1128 (1981).

      . Plaintiff’s allegation that the “individual defendants have entered into a scheme and plan to cause members of the class to pay excessive utility rates because of the financial improprieties committed upon them by the defendants” is not sufficient to overcome the standing requirement because plaintiff must challenge the lawfulness of utility rates at the Gas Commission before seeking a judicial remedy. Byer v. Peoples Natural Gas Co., 251 Pa. Super. 75, 79-80, 380 A.2d 383, 386 (1977); Public Advocate v. Philadelphia Gas Commission, 544 Pa. 129, 133, 674 A.2d 1056, 1059 (1996).