author: PEREZOUS, J.,

text:
    Whitmyer v. Power

      C.P. of Lancaster County,
    no. CI-99-01312.

      Robin J. Marzella, for plaintiff.

      Christopher W. Mattson, for defendant hospital.

      Lauralee B. Baker, for other defendants.
    September 22, 2004
   PEREZOUS, J.,

— Presently before the court is a motion for summary judgment filed by the defendant, Lancaster General Hospital (LGH). Defendant contends that they are entitled to summary judgment in this matter on the grounds that (1) plaintiffs failed to establish that defendant CNM Power and the defendant physicians were the actual and/or ostensible agents of LGH such as to render the hospital vicariously liable for their alleged negligence; and (2) plaintiffs failed to establish a direct claim of negligence against LGPI. For the following reasons, this court grants in part, and denies in part, the defendant’s motion for summary judgment.

This case arises from events that took place during the delivery of plaintiffs’ daughter. In 1996, Obstetrics and Gynecology Associates of Lancaster (OGAL) began treating Mrs. Whitmyer for her prenatal care. During the prenatal period, all of her appointments took place at the offices of OGAL. She went to these offices on or about June 13,1997, when she began to have contractions. An OGAL physician then instructed her to report to LGH for labor and delivery. Mrs. Whitmyer was admitted to the hospital that day and was transferred to defendant CNM Power’s care at or about 11 a.m. On that day, Dr. Kegel, an OGAL physician, was present at the hospital as the attending physician.

Around 12:25 p.m., after defendant Power artificially ruptured Mrs. Whitmyer’s membranes, Power and other members of the nursing staff noticed that the amniotic fluid was meconium stained, which is a sign that the baby is in distress. Defendant Power and the nursing staff continued to monitor Mrs. Whitmyer and her unborn baby without consulting or summoning the attending obstetrician, even as the baby’s base line fetal heart rate declined and Mrs. Whitmyer requested pain medication.

At or about 5:35 p.m., the baby’s heart rate was 60-90, and defendant Power performed the delivery of the infant. At no time was the attending obstetrician summoned. During the course of the delivery, Mrs. Whitmyer sustained a fourth-degree perineal laceration. Defendant Power surgically repaired the laceration without consulting or summoning the attending physician. At some point thereafter, Mrs. Whitmyer allegedly developed rectovaginal fistula.

The plaintiffs, Ann and Timothy Whitmyer, brought suit against LGH and the other defendants by filing a complaint on February 8,1999. Plaintiffs claim that LGH is vicariously liable for the allegedly negligent actions of defendant CNM Power and the defendant physicians under an actual and/or ostensible agency theory of liability. In addition, plaintiffs also set forth a corporate negligence claim against the hospital. On March 15,1999, LGH filed its answer and new matter to the complaint. LGH filed this motion for summary judgment on April 7, 2004.

It is well settled in this Commonwealth that summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2. Under the Pennsylvania Rules of Civil Procedure there are two situations in which a summary judgment motion is permissible:

“After the relevant pleadings are closed, but within such time 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(a).

Along with this standard, the rale also sets forth the requirements for a response to a motion for summary judgment:

“The adverse party may not rest upon the mere allegations or denials of the pleadings, but must file a response within 30 days after service of a motion identifying:
“(1) One or more issues of fact arising from the evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or
“(2) Evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Id.

It is important to note that the moving party has the burden of proving that no genuine issue of material fact exists. Ertel v. Patriot-News Co., 544 Pa. 93, 99-100, 674 A.2d 1038, 1041 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996). The appropriate standard of review is also crucial in this court’s determination of the present motion. In determining whether summary judgment is appropriate, the court must review the evidentiaiy record in a light most favorable to the non-moving party, and that party will be given all reasonable inferences created by that evidence. Bethlehem Steel Corp. v. MATX Inc., 703 A.2d 39, 41 (Pa. Super. 1997). In other words, any doubt must be resolved against the party seeking summary judgment, and it should only be granted in cases that are free and clear of doubt. Davis v. Pennzoil Co., 438 Pa. 194, 202, 264 A.2d 597, 601 (1970).

Viewing the facts in a light most favorable to the plaintiffs as the non-moving party, and resolving all doubts in their favor, summary judgment is proper regarding the plaintiffs’ vicarious liability claims, contained in Count XI of the complaint. However, summary judgment is improper regarding the plaintiffs’ corporate negligence claim contained in Count XIII of the complaint.

First, LGH contends that plaintiffs failed to establish a genuine issue for trial regarding whether CNM Power and the other physicians were actual and/or ostensible agents of LGH. As a matter of law, then, LGH cannot be held vicariously liable for the alleged negligence of these individuals, and summary judgment is proper.

In plaintiffs’ response to LGH’s motion for summary judgment, plaintiffs no longer assert that CNM Power was an ostensible agent of LGH. In addition, the plaintiffs did not raise any issues of fact concerning the status of the defendant physicians, thereby conceding that these persons are not the actual and/or ostensible agents of the hospital. See Pa.R.C.P. 1035.2(a). The plaintiffs maintain, however, that CNM Power was the actual agent of LGH, basing their argument on the fact that CNM Power was credentialed to practice midwifery at the hospital.

This argument, however, does not support a finding that CNM Power was the actual agent of LGH. In order to establish actual agency, the plaintiff must show: (1) a master/servant relationship, and (2) direct control or right to control on the part of the alleged principal. See Myszkowski v. Penn Stroud Hotel Inc., 430 Pa. Super. 315, 321, 634 A.2d 622, 625-26 (1993); Smalich v. Westfall, 440 Pa. 409, 415, 269 A.2d 476, 481 (1970). This “right to control,” moreover, must be the principal’s right to control the “details” of the agent’s physical conduct. See id. The right to supervise, even as to the work and the manner of performance, does not rise to the level of control necessary for an actual agency theory of liability to attach. Strain v. Ferroni, 405 Pa. Super. 349, 361, 592 A.2d 698, 704 (1991).

In the present case, plaintiffs failed to demonstrate a master/servant relationship between CNM Power and L GH. In addition, plaintiffs failed to show LGH’s direct control or right to control the “details” of Power’s physical conduct. Regarding the vicarious liability issues, then, plaintiffs did not establish that CNM Power was an actual agent of LGH. As a result, summary judgment regarding that issue is proper, and LGH’s motion is granted, in part.

During the events giving rise to this lawsuit, LGH and CNM Power were never in an employer/employee relationship. At the time of the delivery, Power and the other physicians were employees of OGAL. The facts support a finding that OGAL, not the hospital, had direct control and right to control the “details” of Power’s physical conduct. For example, the collaborative agreement between Power and OGAL provided guidelines for her work performance and governed her practice as a certified nurse midwife. Also, under the terms of the agreement, CNM Power worked under the constant supervision of a physician from OGAL. It was pursuant to this agreement that a certified nurse midwife could practice at LGH. Additionally, this agreement defined the scope of the midwife’s practice. The collaborative agreement, not the hospital’s “CNM specifics of job duties,” controlled the “details” of Power’s physical conduct while working at LGH.

Moreover, plaintiffs failed to establish a master/servant relationship between CNM Power and LGH. Relying solely on Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), for their claim that Power was LGH’s servant, plaintiffs argue that while practicing midwifery within the hospital’s walls, LGH not only had a right to control her physical conduct but also had a duty to control such conduct. The plaintiffs’ reliance on Thompson, however, is misplaced. In Thompson, the Pennsylvania Supreme Court dealt solely with issues of corporate negligence. See Thompson, 527 Pa. 330, 339, 591 A.2d 703, 707 (1991). Due to the fact that Thompson did not consider any agency issues, reliance upon that decision regarding the servant status of CNM Power is inappropriate. Furthermore, as was previously discussed, plaintiffs did not produce any evidence that showed LGH’s direct control or right to control the “details” of Power’s physical conduct. As such, CNM Power was not the actual agent of LGH.

Second, LGH’s motion regarding the corporate negligence claim must be denied, in part. Viewing the facts in a light most favorable to the plaintiffs as the non-moving party, and resolving all doubts in their favor, summary judgment on this issue is improper. The plaintiffs established a genuine issue of material fact regarding LGH’s corporate liability.

Under the corporate negligence theory, a hospital owes four duties directly to its patients:

“(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment.. .; (2) a duty to select and retain only competent physicians ...; (3) a duty to oversee all persons who practice medicine within its walls as to patient care . . .; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients----” Id. at 339-40, 591 A.2d at 707. (citations omitted)

In order to establish a prima facie case of corporate negligence, a plaintiff must demonstrate: (1) the hospital deviated from a standard of care; (2) the hospital had actual or constructive notice of the defects or procedures which created the harm; and (3) the hospital’s conduct was a substantial factor in bringing about the harm. Rauch v. Mike-Mayer, 783 A.2d 815, 827 (Pa. Super. 2001), appeal denied, 568 Pa. 624, 793 A.2d 909 (2002).

It is important to note that unless the hospital’s negligence is obvious, the plaintiff must present expert testimony to establish the hospital’s deviation from the standard of care, and that the deviation was a substantial factor in causing the plaintiff’s injuries. See e.g., Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581, 585 (1997). It is not necessary to present expert testimony regarding the second prong of the test, dealing with the hospital’s notice. See Rauch, 783 A.2d at 828.

Read in a light most favorable to the plaintiffs, a genuine issue of material fact exists concerning LGH’s corporate liability, based upon plaintiffs’ expert report. In Welsh, the Pennsylvania Supreme Court reversed a lower court’s grant of summary judgment on the plaintiff’s corporate negligence claim. Welsh, 698 A.2d at 586. To support her claim, plaintiff produced an expert report which touched on the fact that the doctor was without qualification to perform a cesarean section and that, had the hospital arranged for an appropriate cesarean section to be performed by a qualified doctor, the child would be alive today. Id. 698 A.2d at 584. The court found that the report specified a breach of the standard by the hospital and established that the breach was a substantial harm in causing injury to the child. Id. 698 A.2d at 586. As a result, the report sufficiently supported a claim of corporate negligence.

Similarly, the Whitmyers’ expert report supports their corporate negligence claim because, taken as a whole, it specifies a breach of the standard of care by LGH, and identifies a causal connection between LGH’s conduct and the alleged injury. Dr. Petit addresses these issues directly. Her report states, in pertinent part, “consultation with the attending physician was required in this case. Failure to do so constituted a breach in the standard of care and a violation of the collaborative agreement with Lancaster Hospital.” Expert report of Dr. Petit, 5/4/03 at 3. The report goes on to state, in pertinent part, “[i]f Dr. Kegel had been consulted by CNM Power as required, the standard of care would dictate that he undertake the repair himself or provide direct on-site supervision to CNM Power .. . such on-site expertise would have significantly decreased the likelihood of fistula formation, making the additional reparative surgery unnecessary.” Id. at 4. Viewing this report in a light most favorable to the plaintiffs, it is sufficient to support a prima facie case of LGH’s corporate negligence.

In the present case, plaintiffs’ expert is properly qualified to render such an expert opinion. It is well settled in Pennsylvania that the standard for qualification of an expert is a liberal one. Von Der Stuck v. APCO Concrete Inc., 779 A.2d 570, 573-74 (Pa. Super. 2001). “The test to be applied when qualifying an expert witness is whether the witness ha[s] any reasonable pretension to specialized knowledge on the subject under investigation.” Id. at 574. If such is the case, “he may testify and the weight to be given such testimony is for the trier of fact to determine.” Id. In the medical field, moreover, “specialties sometimes overlap and a practitioner may be knowledgeable in more than one field.” Rauch, 783 A.2d at 821. In situations where “[sjome doctors [are] more qualified than others to provide evidence about specific medical practices,” id., the jury will determine the appropriate weight to give the opinion “in light of the qualifications presented by the witness.” Id.

Here, LGH does not rely on any case law to support its argument that plaintiffs’ expert was not qualified to render an opinion regarding the hospital’s corporate liability. In Whittington v. Episcopal Hospital, 768 A.2d 1144 (Pa. Super. 2001), however, the court allowed a doctor to render an opinion on corporate negligence because he worked in the medical field that was involved in the lawsuit, possessed supervisory duties as an attending obstetrician/gynecologist, held academic appointments, and consistently encountered situations that were similar to the one upon which the lawsuit was based. Whittington, 768 A.2d 1144, 1155 (Pa. Super. 2001). Keeping in mind that the qualification standard is a liberal one, Doctor Petit’s qualifications meet the test. She was board certified in obstetrics and gynecology, the field involved in the lawsuit. Also, she held positions as staff obstetrician/gynecologist at various hospitals, and was medical director for the Health Enhancement Center at St. Francis Hospital in Wilmington, Delaware. Furthermore, she was licensed by the Board of Physician Quality Assurance. These characteristics, when viewed in a light most favorable to the plaintiffs, qualify Doctor Petit to render an opinion on the issue of LGH’s corporate liability.

Regarding the second prong of plaintiffs’ prima facie case of corporate negligence, LGH contends that the Whitmyers failed to offer any evidence, expert or otherwise, demonstrating the hospital’s actual or constructive notice of the alleged defects procedures which gave rise to plaintiffs’ injuries. Expert testimony, however, is not needed to establish notice. Rauch, 783 A.2d at 828. Hospital staff members have a “duty to recognize and report abnormalities in the treatment and condition of its patients.” Id. A hospital is properly charged with constructive notice when it “ ‘should have known’ of the patient’s condition,” id., and when the failure to receive actual notice is caused by the “failure to enforce adequate rules and policies.” Id. In Rauch, the court charged a hospital with constructive notice due to the hospital’s failure to “enforce adequate mies and policies so as to ensure quality care for its patients.” Id. Here, viewing the evidence in a light most favorable to the plaintiffs as the non-moving party, it is proper to find that the Whitmyers presented sufficient facts alleging that LGH failed to enforce their own rules and policies so as to ensure quality care for its patients. As a result, it is proper to consider that LGH was on constructive notice of Mrs. Whitmyer’s condition and the choices that were made during the course of her care.

Finally, LGH argues that plaintiffs failed to allege any type of “systematic negligence.” However, in Whittington, the Superior Court clarified that the systematic negligence standard is merely an adequate way to establish notice. Whittington, 768 A.2d at 1154. It is not needed to establish a prima facie case of corporate negligence. Id. This standard is simply another way of stating that the hospital must have actual or constructive notice. Id. For reasons previously stated, the plaintiffs established such notice. Therefore, viewing the facts presented in a light most favorable to the plaintiffs, summary judgment is improper regarding the plaintiffs’ corporate negligence claim, and the defendant’s motion will be denied, in part.

Accordingly, the court enters the following:

ORDER

And now, September 22,2004, upon consideration of the defendant, Lancaster General Hospital’s, motion for summary judgment, along with the briefs and supporting papers filed by the parties, it is hereby ordered that the motion is granted in part, and denied in part, in accordance with this opinion.

      . Fluid produced by the extraembryonic membrane which contains the embryo, amniotic fluid, fetal lungs and kidneys. Medical Dictionary Online, http://www.online-medical-dictionary.org.

      . The thick green-to-black mucilaginous material found in the intestines of a full-term fetus. Id.

      . Abnormal communication between the rectum and the vagina. Id.


source: Caselaw Access Project

author: DOBSON, J.,

license: Public Domain

text:
    Stoutmire v. General Electric Co.

      C.P. of Mercer County,
    no. 2001-925.

      Rhonda Stoutmire, pro se.

      Roger H. Taft, for defendant.
    September 21, 2004
   DOBSON, J.,

— The matter be-

fore this court for disposition is defendant General Electric Company’s motion for summary judgment. For the reasons hereinafter set forth, defendant’s motion is granted.

Pa.R.C.P. 1035.2 provides that 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.

A court may grant a motion for summary judgment only where the right is clear and free from doubt. Ducjai v. Dennis, 540 Pa. 103, 113, 656 A.2d 102, 107 (1995). “The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991).

In opposing a motion for summary judgment, the adverse party “may not rest upon the mere allegations or denials of the pleadings.” Pa.R.C.P. 1035.3(a). Instead, the nonmoving party “must adduce sufficient evidence on [all] issue[s] essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996).

The nonmoving party must file a response within 30 days of the service of the motion. Pa.R.C.P. 1035.3(a). The court may, at its discretion, grant summary judgment against an adverse party who fails to respond appropriately to a motion for summary judgment. Pa.R.C.P. 1035.3(d); Payton v. Pennsylvania Sling Company, 710 A.2d 1221, 1224 (Pa. Super. 1998).

Viewed in the light most favorable to the nonmoving party, the facts are summarized as follows. Plaintiff Rhonda Stoutmire was an at-will employee at defendant General Electric Company’s Grove City, Pennsylvania facility from September 4,1990 until her discharge from employment, effective March 25,1999.

On February 16, 1999, plaintiff injured her back during the course of her employment at General Electric Company. (Request for admission no. 6 and exhibit E.) This incident was formally reported on February 22, 1999. Plaintiff pursued a workers’ compensation claim based on the incident, and ultimately a workers’ compensation judge found General Electric liable for medical and other costs resulting from the injury.

Nicholas J. Brennan D.C., examined plaintiff on March 3, 1999, and issued a disability certificate which stated that he expected plaintiff to be totally incapacitated from March 3, 1999 to approximately March 17, 1999, as a result of back pain. Dr. Brennan scheduled plaintiff for a follow-up appointment on March 5, 1999. (Request for admission nos. 8-9 and exhibit G.) Plaintiff cancelled this follow-up appointment because she had an appointment scheduled with William E. Prenatt M.D. for the same day. (Request for admission no. 10.)

On March 5, 1999, William E. Prenatt M.D. examined plaintiff and issued a Medical Excuse and Compensation/Accident Report, which stated that plaintiff was released to return to limited work duty at General Electric on March 7, 1999, subject to restrictions that she was not to lift, push, or pull more than 30 pounds. (Request for admission nos. 11-12 and exhibits H-l and H-2.) In a letter dated March 9, 1999, General Electric informed plaintiff that it could accommodate the work restrictions imposed by Dr. Prenatt, that plaintiff’s attendance at work was expected, and that continued unauthorized absence from work would result in the termination of plaintiff’s employment. (Request for admission no. 17 and exhibit K.)

General Electric records show that plaintiff was absent March 10,1999, and March 12,1999, despite being scheduled to work both days. (Request for admission no. 18, exhibits F-l and F-2. Affidavit of Saylor, ¶4, exhibit A.)

Plaintiff was suspended on March 14,1999, until further notice. This suspension was purportedly due to plaintiff’s absenteeism. (Request for admission no. 19, exhibit L.)

A letter dated March 18,1999, informed plaintiff that her employment was terminated, effective March 25, 1999. This letter referenced her previous suspension, but did not specifically refer to plaintiff’s absenteeism. (Request for admission no. 20, exhibit M.)

In a letter dated April 6, 1999, General Electric informed plaintiff that her termination was due to “excessive and persistent absenteeism.” Plaintiff denies that this was the true reason for her discharge. (Request for admission no. 21, exhibit N.)

On March 15,2001, plaintiff, then acting individually and on behalf of a purported class, filed a class action complaint against defendant General Electric Company, presenting a claim for common-law wrongful discharge. Plaintiff'alleged that GE has a policy of terminating employees in retaliation for pursuing workers’ compensation claims and discharged her from employment on March 18,1999, pursuant to that policy. The class action allegations of the complaint were voluntarily dismissed December 23, 2002, pursuant to plaintiff’s motion to amend complaint and for dismissal of plaintiff’s motion for class certification.

This court granted a motion to withdraw appearance as counsel for plaintiff filed by Gary F. Lynch, Esquire and Pamela J. Miller, Esquire on August 13,2003. Plaintiff Stoutmire has acted pro se since that date.

Plaintiff served a third set of interrogatories upon defendant by first-class mail on June 26, 2004. On June 28,2004, defendant General Electric Company filed the motion for summary judgment currently before this court. In response, plaintiff Stoutmire has filed only a reply brief on August 23, 2004.

In plaintiff’s reply brief, she requests a 90-day continuance to complete discovery. For purposes of this discussion, we will treat plaintiff’s reply brief as a formal request for a continuance.

Courts may not deny a continuance to complete further discovery when the party opposing summary judgment has been denied an adequate opportunity to conduct reasonable discovery. Kerns v. Methodist Hospital, 393 Pa. Super. 533, 543, 574 A.2d 1068, 1073 (1990). There can be no abuse of discretion in denying a continuance, however, when a reasonable period for discovery has expired, and the opposing party has either failed to demonstrate the materiality of the outstanding discovery or failed to demonstrate that it has been diligent in attempts to complete discovery. Id. at 544, 574 A.2d at 1074.

Plaintiff has not shown that she proceeded in a timely manner with regard to the discovery sought. This case was initiated over three and a half years ago. Although plaintiff is acting pro se, she has had well over a year since her attorneys withdrew to complete discovery. The evidence requested was available at the inception of her complaint, and there appears to be no compelling reason for plaintiff’s delay in requesting this evidence. Plaintiff could and should have included these very generalized questions in her first set of interrogatories. This court has also reviewed these interrogatories and does not believe that the information requested from defendant is relevant to establishing plaintiff’s claim. Therefore, we find that plaintiff has not exercised due diligence to complete the requested discovery in a timely manner. Kerns v. Methodist Hospital, supra.

This court has the discretion to enter summary judgment against plaintiff based on her failure to respond meaningfully to the defendant’s motion for summary judgment. Pa.R.C.P. 1035.3(d); Payton v. Pennsylvania Sling Company, 710 A.2d 1221, 1224 (Pa. Super. 1998). We believe that it would be proper to grant summary judgment for General Electric based on Pa.R.C.P. 1035.3(d).

We need not do so, however, because we believe that the relevant case law mandates the grant of defendant’s motion for summary judgment. This court finds the cases of Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996); Macken v. Lord Corporation, 402 Pa. Super. 1, 3-4, 585 A.2d 1106, 1108 (1991); and Landmesser v. United Air Lines Inc., 102 F. Supp.2d 273 (E.D. Pa. 2000), to be dispositive.

A party opposing a motion for summary judgment may not rest on the pleadings, but instead “must adduce sufficient evidence on [all] issue[s] essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042. See also, Pa.R.C.P. 1035.3(a). Plaintiff’s brief does not specify any evidence of record sufficient for a jury to return a verdict in her favor. After careful review of the entire record, this court can find no evidence of record that plaintiff was dismissed from employment because she filed a workers’ compensation claim. Under Ertel, this is sufficient to establish that there is no genuine issue of material fact and that General Electric is entitled to judgment as a matter of law.

Even though the general requirements of Ertel are sufficient to grant summary judgment for defendant General Electric Company, more specific case law also requires that result. In a situation factually quite similar to the present case, the Superior Court upheld the grant of a compulsory nonsuit in a wrongful discharge action:

“The fact that appellant was discharged after filing a claim for compensation does not begin to satisfy appellant’s burden with regard to wrongful discharge. There is no evidence of record from which we could infer appellant’s discharge was retaliatory in nature. To the contrary, appellee’s offer of light duty employment in compliance with the directive of appellant’s treating physician negates any allegation of action by the employer to purposefully injure appellant. The record is replete, however, with repeated, documented warnings relating to the appellant’s chronic absenteeism, which, standing alone, supports appellee’s action in terminating appellant’s employment. We find, giving the appellant the benefit of all reasonable inferences, there is no evidence of retaliatory discharge on the appellee’s behalf.” Macken v. Lord Corp., 402 Pa. Super. 1, 4, 585 A.2d 1106, 1108 (1991). (emphasis added)

The present facts are practically identical to those in Macken. Plaintiff Stoutmire was fired after filing a workers ’ compensation claim. The record establishes that General Electric offered light duty employment satisfying Dr. Prenatt’s requirements. The record is replete with repeated, documented warnings regarding plaintiff’s chronic absenteeism. Like the court in Machen, we find that the plaintiff has presented absolutely no evidence of retaliatory discharge, and instead has only shown that she was dismissed after she filed a workers’ compensation claim.

Although the Supreme Court of Pennsylvania has explicitly recognized a cause of action for wrongful discharge of an at-will employee in retaliation for filing a workers’ compensation claim, Pennsylvania appellate courts have yet to define the elements necessary to establish a prima facie case of retaliation. Landmesser v. United Air Lines Inc., 102 F. Supp.2d 273 (E.D. Pa. 2000). In Landmesser, the Eastern District predicted that the Pennsylvania Supreme Court would follow the analysis already adopted in retaliation cases in the federal employment context. Under that analysis, in order to advance a prima facie case of retaliation for filing a workers’ compensation claim under public policy exception to at-will employment doctrine, the plaintiff must show that (1) employee filed a workers’ compensation claim; (2) the employer took adverse employment action after or contemporaneous with the filing of that claim; and (3) the existence of a causal link between the filing of the workers’ compensation claim and the employer’s adverse action. Landmesser, 102 F. Supp.2d 273, 277-78.

We agree with the Eastern District that the Pennsylvania Supreme Court would adopt this analysis were it faced with the issue, and therefore adopt the three-element test utilized in federal employment retaliation cases. In Landmesser, the District Court granted summary judgment for the defendant because the plaintiff had failed to produce any evidence to support the third element. Likewise, Stoutmire has only produced evidence to support prongs (1) and (2), and nothing to support element (3).

The record establishes that defendant General Electric Company is entitled to summary judgment. Plaintiff Stoutmire bears the burden of proof, and has failed to adduce sufficient evidence to support her claim of wrongful discharge. Therefore, defendant is entitled to judgment as a matter of law.

And hence this order:

ORDER

And now September 21, 2004, it is hereby ordered that defendant’s motion for summary judgment is granted and summary judgment is entered in favor of the defendant and against the plaintiff.


author: OLER JR., J.,

text:
    Shenandoah Mobile Company v. Cumberland County Board of Assessment Appeals

      C.P. of Cumberland County,
    no. 03-4921.

      Carl C. Risch, for plaintiffs Shenandoah Mobile Co. and Shenandoah Personal Communications Co.

      Dusty Elias Kirk and Sharon E DiPaolo, for plaintiffs Spectrasite Communications and SB A Towers Inc.

      Mark A. Mateya, for defendant County Commissioners Ass’n of Pa.

      Stephen D. Tiley, for defendant Cumberland Cty. Bd. of Assessment Appeals.

      Philip H. Spare, for interested parties Big Spring and South Middleton school districts.
    September 15, 2004
   OLER JR., J.,

— In these six cases, which have been consolidated by agreement of counsel because of a common question of law, plaintiffs are appealing from real estate tax assessments by defendant of plaintiffs’ telecommunication tower facilities. At issue on the appeals is the correctness of defendant’s underlying classification of plaintiffs’ telecommunication towers as realty as opposed to personalty for real estate tax purposes.

The procedural history of the cases may be summarized as follows. On September 18, 2003, plaintiffs Shenandoah Mobile Company and Shenandoah Personal Communications Company filed a petition for appeal from defendant’s tax assessment of their telecommunication towers. Defendant filed an answer to plaintiffs’ petition on October 2, 2003, and the case was listed for trial on January 7, 2004. On March 4, 2004, plaintiff Spectrasite Communications filed three petitions for appeal, each listing the Cumberland County Board of Assessment Appeals as defendant, as well as Cumberland County and the local townships and school districts in which the towers were located as interested parties. On March 5,2004, plaintiff SBA Towers filed two petitions for appeal, each listing the Cumberland County Board of Assessment Appeals as defendant, as well as Cumberland County and the local townships and school districts in which the towers were located as interested parties.

On April 13, 2004, plaintiff Spectrasite Communications filed a motion to consolidate the six cases pending against defendant. On April 16, 2004, pursuant to an agreement of counsel, the court ordered the cases consolidated, with filings to be made at number 03-4921 civil term.

A pre-hearing conference was held on June 9,2004, and a two-day hearing was conducted on June 24,2004, and June 28, 2004.

For the reasons stated in this opinion, defendant’s treatment of plaintiffs’ telecommunication towers as realty for purposes of the county’s tax on real property will be sustained.

STATEMENT OF FACTS

Plaintiffs are Shenandoah Mobile Company, Shenandoah Personal Communications Company, Spectrasite Communications, and SB A Towers Inc. Shenandoah, Spectrasite, and SB A Towers are all telecommunication tower companies which own towers throughout Pennsylvania. Spectrasite and SB A Towers are also part of an industry group, along with Crown Communications and American Tower Company, which is cooperating in the coordination of real estate tax assessment appeals. Defendant is the Cumberland County Board of Assessment Appeals. The interested parties of record are Cumberland County, South Middleton Township, Upper Frankford Township, Southampden Township, East Pennsboro Township, South Newton Township, South Middleton School District, Big Spring School District, Shippensburg Area School District, and East Pennsboro School District.

For the sake of clarity, the word “tower” will be used when referencing the actual telecommunication towers, and the term “tower facility” will be used when referencing the tower, fence, concrete foundation and equipment building on each site. With respect to the types of towers, a monopole tower will be defined as a self-supporting, tubular tower which ranges 50-200 feet in height. A lattice tower will be defined as a self-supporting, three- or four-legged tower which is widest at the bottom and tapers as it rises. Lattice towers can reach heights of up to 1,000 feet. Finally, it should be noted that plaintiffs lease the underlying land on which their tower facilities are located. The assessments at issue in these cases were made only on plaintiffs’ tower facilities; assessments on the leased land were separately issued to the landowners.

These cases involve six telecommunication towers located in Cumberland County (identified as towers “AF”). Tower “A,” parcel number 25-25-0006-351 LL, is owned by Shenandoah Mobile Company. It is a 70-foot monopole tower located at 102 Market Street, New Cumberland Borough, Cumberland County, Pennsylvania. The lease for tower “A” ’s facility commenced on August 23, 1999, and is a five-year lease, which will automatically be renewed, unless terminated by the tower company, through four more five-year periods. The original assessment issued for the improvements at tower “A” ’s facility specified an assessed value of $202,860, which was modified by the board of assessment appeals to $95,000.

Tower “B,” parcel number 43-06-0031-012 LL, is owned by Spectrasite Communications. It is a 150-foot lattice tower located at 200 Center Road, Upper Frankford Township, Cumberland County, Pennsylvania. The lease for tower “B” ’s facility commenced on June 3, 1998, and is a four-year lease, which will automatically be renewed, unless terminated by the tower company, through four more five-year periods. The original assessment issued for the improvements at tower “B” ’s facility specified an assessed value of $217,560, which was modified by the board of assessment appeals to $142,000.

Tower “C,” parcel number 39-12-0324-004 LL, is owned by Spectrasite Communications. It is a 180-foot lattice tower located at 44 Kline Road, Southampton Township, Cumberland County, Pennsylvania. The lease for tower “C” ’s facility commenced on March 6, 1998, and is a five-year lease, which will automatically be renewed, unless terminated by the tower company, through five more five-year periods. The original assessment issued for the improvements at tower “C” ’s facility specified an assessed value of $244,860, which was modified by the board of assessment appeals to $136,530.

Tower “D,” parcel number 40-10-0632-016 LL, is owned by Spectrasite Communications. It is a 160-foot lattice tower located at 1500 Holly Pilce, South Middleton Township, Cumberland County, Pennsylvania. The lease for tower “D” ’s facility commenced on August 22, 1998, and is a five-year lease, which will automatically be renewed, unless terminated by the tower company, through four more five-year periods. The original assessment issued for the improvements at tower “D” ’s facility specified an assessed value of $221,060, which was modified by the board of assessment appeals to $136,530.

Tower “E,” parcel number 09-22-0533-001 LL, is owned by SB A Towers. It is a 120-foot monopole tower located at 4404 Industrial Park Road, East Pennsboro Township, Cumberland County, Pennsylvania. The lease for tower “E” ’s facility commenced on January 1, 2001, and is a five-year lease, which will automatically be renewed, unless terminated by the tower company, through four more five-year periods and one period of four years and 11 months. The original assessment issued for the improvements at tower “E” ’s facility specified an assessed value of $244,860, which was modified by the board of assessment appeals to $70,000.

Tower “F,” parcel number 41-11-0304-019 LL, is owned by SBA Towers. It is a 195-foot lattice tower located at 212 Hammond Road, South Newton Township, Cumberland County, Pennsylvania. The lease for tower “F” ’s facility commenced on November 21,1997, and is a five-year lease, which will automatically be renewed, unless terminated by the tower company, through four more five-year periods and one period of four years and 11 months. The original assessment issued for the improvements at tower “F” ’s facility specified an assessed value of $244,860, which was modified by the board of assessment appeals to $100,000.

Cumberland County is a fourth class county. The predetermined assessment ratio for real estate in Cumberland County is 100 percent. The above assessment values which were determined by the Cumberland County board of assessment appeals represent the fair market value of each of the tower facilities. The common level ratio, which is set at 95.4 percent for Cumberland County, is not implicated as a factor in these cases because it does not vary by more than 15 percent from the predetermined ratio.

Much of the testimony at the hearing focused on the question of whether plaintiffs’ towers were, or were at least intended to be, permanent fixtures at the tower facilities. This testimony included explanations about the erection and disassembly of telecommunication towers, reasons for removing or replacing towers, and general trends in the tower industry pertaining to the erection and removal of towers.

The process of erecting a tower begins with the submission of bids. The bid forms are broken down by the tasks which need to be performed. These tasks include, but are not limited to, foundation work, tower erection, electrical work, fencing, and landscaping. After bids have been submitted and jobs awarded, preparation of the tower facility site begins, including erecting a fence, clearing the trees and vegetation, grading, stoning, and matting. Sometimes it is also necessary to have an access road constructed from the highway or roadway to the tower facility site.

The first step in the actual erection of either a monopole or a lattice tower is the laying of the concrete mat and pier foundation. Leonard Greisz, a director of internal controls compliance with Shenandoah, and Patrick Doyle, an employee of Crown Castle, testified as to this procedure. Their testimony was corroborated by Patrick O’Reilly, a director of field operations for Spectrasite, and Andrew Getsy, a field operations manager for SB A. First, engineers conduct a geotechnical analysis to determine whether they will be drilling in soft dirt, hard dirt, or bedrock. The softer or looser the ground is, the deeper the concrete foundation must be. After the needed depth of the foundation is determined, the ground is drilled, and rebar cages are placed in the ground. Bolts are then placed inside the rebar cages, and the cement is poured. Additionally, Mr. O’Reilly testified that instead of a mat and pier foundation, lattice towers may have a straight caisson under each leg of the tower. A straight caisson is simply an individual concrete foundation under each leg of the tower which is about eight feet in diameter, and anywhere from 20 to 30 feet deep. Otherwise, a straight caisson is created in the same manner as the mat and pier foundation.

Mr. Greisz and Mr. Doyle next testified about the erection of towers. While the cement is curing, the next stage of erecting the tower proceeds. Usually workers will begin constructing the individual sections of the tower during this time. After the cement has cured, a crane lifts the first section of the tower over the bolts and onto the mat and pier foundation. A lock washer is then placed over the bolts, and, finally, a large nut is used to securely fasten the tower to its foundation. After the first segment of the tower has,been securely fastened to its foundation, the remaining segments of the tower are moved into place by crane and attached to the previous segments of the tower until the entire tower has been erected. After the tower has been erected, lights will be attached to it and electricity will be run to it, making the tower ready to host antennas.

During the hearing, Mr. Doyle also gave extensive testimony on the disassembly process for telecommunication towers as he narrated a videotape showing the dis-assembly of a tower in West Virginia. The West Virginia tower was a 180-foot lattice tower which was composed of nine sections and over 100 parts. Before any disassembly could begin, the lights were taken off the tower, and the tower facility site was de-energized. Additionally, any antennas or co-axle cables which would have been attached to the tower would also have had to have been taken down or disconnected before disassembly could begin.

Once these preliminary matters had been addressed, riggers ascended the tower and securely attached the strapping from the crane to the top section of the tower. The riggers then began unfastening the bolts which held the top section of the tower in place, and, once the section was loose, the crane lowered the section to the ground. The riggers then moved down to the next section of the tower, attached the crane’s strapping, unfastened the bolts, and lowered the section to the ground. The tower sections were not disassembled before they were taken away from the site unless they were too large to transport. Once the sections became too large to transport, the sections were disassembled and the parts were categorized before being taken away. Eventually, the riggers unbolted the final section of the tower, which was the section attached to the concrete foundation. After the last section had been unbolted from the foundation and disassembled, the riggers cleaned up the site, the last of the tower pieces were taken away, and the tower disassembly was complete.

The entire disassembly process for the West Virginia tower lasted about 12 hours. Mr. Doyle testified that the time period which was required to disassemble the West Virginia tower was longer than the time normally needed to disassemble a lattice tower because the access to the site was poor, and there was little room at the site for the cranes and trucks to move around. Additionally, Mr. Doyle testified that disassembling a monopole tower would be a much simpler process than disassembling a lattice tower. After the antennas and power cables have been removed, disassembling a monopole tower requires loosening the foundation bolts, using a crane to pick the tower up and lay it on its side, and disassembling the tower segments once the tower has been laid on the ground.

Once a tower has been disassembled, only the cement foundation, equipment building, and fence are left at the site. These parts of the facility are not damaged during disassembly, and could be used if another tower were later erected at the site. In fact, the fencing and cement foundation are removed from the site only if their removal is a specified condition in the lease.

The towers themselves are also reusable after disassembly. The only parts of the towers which must be replaced after disassembly are the bolts which hold the pieces and sections of the tower together. Additionally, any pieces of the tower which are damaged during dis-assembly also must be replaced before the tower can be reassembled. Otherwise, the towers can either be transported to a new site and erected, or put in a storage facility until they are needed for another site.

During the hearing, the witnesses testified to a number of reasons that towers might be disassembled and moved to another location. The major reason cited for tower removal was a change in business circumstances. For example, if there were a population shift and a tower were no longer needed in one area, but instead needed in a more densely populated area, then the tower would be moved into the more densely populated area. Additionally, there might be times when a tower would no longer be a sufficient height; therefore, the original tower would be disassembled and a taller tower would be erected in its place. This procedure is referred to in the industry as a “drop and swap.” Finally, sometimes a company will build a spec site, which is a tower facility that is built in anticipation that companies will eventually want to attach antennas to it. If the tower were to become financially unviable because companies did not attach antennas to it, or if zoning requirements mandated that the tower be taken down because of non-use, then the tower would have to be taken down.

Notwithstanding the availability of technology to disassemble a tower, the process is highly laborious, expensive, and demanding in terms of expertise, courage, and equipment. Furthermore, notwithstanding the theoretical reasons recounted above for taking down or moving towers, the practice in the telecommunication tower industry is that these towers are not being taken down or moved on a frequent basis.

Mr. Greisz testified that, during the almost 10 years in which he has worked for Shenandoah, he could not remember a tower that was built where the lease was terminated and the tower was taken down. Mr. Doyle testified that, of the well over 400 towers which his company owns in Pennsylvania, his company is considering moving or taking down only 30 of the sites. Mr. O’Reilly testified that, of the 2,200 towers which Spectrasite owns in the northeastern United States, only 10 have been or are in the process of being moved or swapped, none of which are located in Pennsylvania. Mr. Getsy testified that, of the over 400 towers which SB A Towers owns in Pennsylvania, he was not aware of any being removed.

Finally, plaintiffs called Brian Kostel, a senior tax accountant for Crown Castle. Mr. Kostel testified that, according to an advisory letter issued by the Pennsylvania Department of Revenue, telecommunication towers which are bolted to their foundations, instead of being sunk into their foundations, are considered personal property, thus subjecting the rental space on the towers to sales tax.

DISCUSSION

Statement of Law

Assessability of real estate. Section 201 of the Fourth to Eighth Class County Assessment Law provides for the assessment of all real estate in the county:

“The following subjects and property shall as hereinafter provided be valued and assessed and subject to taxation for all county, borough, town, township, school, (except in cities), poor and county institution district purposes, at the annual rate,
“(a) All real estate to wit: houses, house trailers and mobile homes permanently attached to land or connected with water, gas, electric or sewage facilities, buildings, lands, lots of ground and ground rents, trailer parks and parking lots, mills and manufactories of all kinds, all office type construction of whatever kind, that portion of a steel, lead, aluminum or like melting and continuous casting stractures which enclose, provide shelter or protection from the elements for the various machinery, tools, appliances, equipment, materials or products involved in the mill, mine manufactory or industrial process, and all other real estate not exempt by law from taxation. . . .” Act of May 21, 1943, P.L. 571, §201, as amended, 72 P.S. §5453.201.

Assessment of chattels as real property for real estate taxation. As a general proposition in real property law, there are three classifications for chattels that are used in connection with real estate:

“First, those which are manifestly furniture, as distinguished from improvements, and not peculiarly fitted to the property with which they are used; these always remain personalty____Second, those which are so annexed to the property that they cannot be removed without material injury to the real estate or to themselves; these are realty, even in the face of an expressed intention that they should be considered personalty .... Third, those which, although physically connected with the real estate, are so affixed as to be removable without destroying or materially injuring the chattels themselves, or the property to which they are annexed; these become part of the realty or remain personalty, depending upon the intention of the parties at the time of the annexation; in this class fall such chattels as boilers and machinery affixed for the use of an owner or tenant but readily removable.” Clayton v. Lienhard, 312 Pa. 433, 436-37, 167 A. 321, 322 (1933). (citations omitted)

The court in In re Sheetz Inc., 657 A.2d 1011 (Pa. Commw. 1995), elaborated on the third classification of chattels, setting out a test for determining whether a chattel has become a fixture of real property for purposes of real estate taxation. Id. at 1013. The considerations which must be taken into account when making this determination are “(1) the manner in which [the chattel] is physically attached or installed, (2) the extent to which it is essential to the permanent use of the building or other improvement, and (3) the intention of the parties who attached or installed it.” Id. (emphasis in original) The intention of the parties is the most important consideration to examine, with the first two considerations acting as “objective manifestations that aid in determining the intention of the parties.” Id. at 1014. Furthermore, permanence is not to be equated with perpetuity, but rather with the intention to “remain where affixed until worn out, until the purpose to which the realty is devoted is accomplished or until the item is superseded by another item more suitable for the purpose.” Id. (quoting Michigan National Bank v. City of Lansing, 96 Mich. App. 551, 554, 293 N.W.2d 626, 627 (1980)).

In Sheetz, the Commonwealth Court held that canopies which cover gas pumps at gas stations are fixtures of real property, and hence are taxable as such similar facilities. Id. The court held that the canopies were affixed to a poured concrete foundation by bolts, which were then covered by concrete. Id. Next, the court held that the canopies were essential to the permanent use of the gas pumps because stations with canopies had a higher sales volume. Id. Additionally, the canopies’ essential nature was demonstrated through Sheetz’ seeking variances of zoning requirements in a number of cases to allow for the erection of canopies at their stations. Id. These facts led the court to conclude that Sheetz intended the canopies to be a permanent fixture of its gas stations which would remain until they were worn out, or Sheetz no longer occupied the premises. Id.

Finally, the Court of Common Pleas of Dauphin County, Bratton, J., has in a recent decision addressed the specific issue of real estate taxation of telecommunication towers. In holding that the tower was real property for purposes of real estate taxation, Judge Bratton noted that although the tower itself could be removed without injury to the tower, the concrete foundation to which the tower was attached could not be removed without causing injury to the real estate. See e.g., Shenandoah Mobile Company v. Dauphin County Board of Assessment Appeals, docketed at 2003 CV 3196 TX, Dauphin County, 2004, PICS case no. 04-1456 (Dauphin Cty. May 24, 2004).

Application of Law to Facts

In the court’s view, plaintiffs’ telecommunication towers are properly classified as realty for purposes of Pennsylvania’s real property taxation scheme. An analysis of the considerations set forth in Sheetz leads to this conclusion.

First, the towers are firmly affixed to the ground, and, although their removal is not a practical impossibility, the process involves a high degree of expense, manpower, equipment, and skill. Second, the towers are essential to the use of the rest of the facility, which is clearly real estate.

Third, and perhaps most important, the intent of the parties that the towers be features of the real estate as opposed to transient items of personalty is manifest in the extended terms of the leases and the practice of the industry, whereby dismantling of towers is almost exclusively a theoretical matter.

ORDER

And now, September 15,2004, after careful consideration of the tax assessment appeals filed herein, following a hearing, and for the reasons stated in the accompanying opinion, it is ordered as follows:

With respect to parcel number 25-25-0006-351 LL:

The market value as of January 1, 2004 (and for succeeding years until revised), for the parcel owned by Shenandoah Mobile Company, situated in New Cumberland Borough, Cumberland County, Pennsylvania, is fixed at $95,000.

The pertinent common level ratio for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent.

There being a difference of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $95,000 as of January 1,2004, for county and municipal taxes, and July 1,2004, for school real estate taxes.

With respect to parcel number 43-06-0031-012 LL:

The market value as of January 1, 2004 (and for succeeding years until revised), for the parcel owned by Spectrasite Communications, situated in Upper Frank-ford Township, Cumberland County, Pennsylvania, is fixed at $142,000.

The pertinent common level ratio for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent.

There being a difference of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $142,000 as of January 1, 2004, for county and municipal taxes, and July 1, 2004, for school real estate taxes.

With respect to parcel number 39-12-0324-004 LL:

The market value as of January 1, 2004 (and for succeeding years until revised), for the parcel owned by Spectrasite Communications, situated in Southampton Township, Cumberland County, Pennsylvania, is fixed at $136,530.

The pertinent common level ratio for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent.

There being a difference of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $136,530 as of January 1, 2004, for county and municipal taxes, and July 1, 2004, for school real estate taxes.

With respect to parcel number 40-10-0632-016 LL:

The market value as of January 1, 2004 (and for succeeding years until revised), for the parcel owned by Spectrasite Communications, situated in South Middleton Township, Cumberland County, Pennsylvania, is fixed at $136,530.

The pertinent common level ratio for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent.

There being a difference of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $136,530 as of January 1, 2004, for county and municipal taxes, and July 1, 2004, for school real estate taxes.

With respect to parcel number 09-22-0533-001 LL:

The market value as of January 1, 2004 (and for succeeding years until revised), for the parcel owned by SBA Towers Inc., situated in East Pennsboro Township, Cumberland County, Pennsylvania, is fixed at $70,000.

The pertinent common level ratio for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent.

There being a difference of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $70,000 as of January 1, 2004, for county and municipal taxes, and July 1, 2004, for school real estate taxes.

With respect to parcel number 41-11-0304-019 LL:

The market value as of January 1, 2004 (and for succeeding years until revised), for the parcel owned by SBA Towers Inc., situated in South Newton Township, Cumberland County, Pennsylvania, is fixed at $100,000.

The pertinent common level ratio for Cumberland County has been stipulated to be 95.4 percent. The predetermined ratio is 100 percent.

There being a difference of less than 15 percent between the common level ratio and predetermined ratio, as a result of which assessments are to be determined by application of the predetermined ratio, the assessment with respect to the aforesaid parcel is fixed at $100,000 as of January 1, 2004, for county and municipal taxes, and July 1, 2004, for school real estate taxes.

      . The following cases have been consolidated at number 03-4921 civil term: numbers 03-4921 civil term, 04-920 civil term, 04-921 civil term, 04-922 civil term, 04-949 civil term, and 04-950 civil term. See order of court, April 16, 2004.

      . See pet. of appeal from determination of real estate tax assessment, filed September 18, 2003 (Shenandoah’s pet. of appeal); pet. for appeal, filed March 4, 2004 (Spectrasite/South Middleton Township pet. for appeal): pet. for appeal, filed March 4,2004 (Spectrasite/ Upper Frankford Township pet. lor appeal); pet. for appeal, filed March 4, 2004 (Spectrasite/Southampden Township pet. for appeal); pet. for appeal, filed March 5, 2004 (SBA Towers/South Newton Township pet. for appeal); pet. for appeal, filed March 5, 2004 (SBA Towers/ East Pennsboro Township pet. for appeal).

      . Shenandoah’s pet. of appeal.

      . Answer, filed October 2, 2003 (def.’s answer to Shenandoah’s pet.).

      . Praecipe for listing case for trial, filed January 7, 2004.

      . See Spectrasite/South Middleton Township pet. for appeal (listing Cumberland County, South Middleton Township and South Middleton School District as interested parties); Spectrasile/Upper Frank ford Township pet. for appeal (listing Cumberland County, Upper Frankford Township, and Big Spring School District as interested parties); Spectrasile/Soulhampden Township pet. for appeal (listing Cumberland County, Southampden Township, and Shippensburg Area School District as interested parties).

      . See SBA Towers/South Newton Township pet. for appeal (listing Cumberland County, South Newton Township, and Big Spring School District as interested parties); SBA Towers/Easl Pennsboro Township pet. for appeal (listing Cumberland County, East Pennsboro Township, and East Pennsboro School District as interested parties).

      . Mot. to consolidate, filed April 13, 2004 (Spectrasite’s mot. to consolidate).

      . Order of court, April 16, 2004.

      . In re pre-hearing conference, June 9,2004.

      . Notes of testimony 2, hr’g., June 24, 2004, and June 28, 2004 (N.T._).

      . N.T. 1-2.

      . Stipulations of fact ¶2. pis.’ exhibit 13, hr’g., June 24, 2004, and June 28, 2004 (Stipulations of fac^_).

      . Stipulations of fact ¶3.

      . N.T. 1-2.

      . N.T. 1-2.

      . Stipulations of fact ¶4.

      . Stipulations of fact ¶4.

      . Stipulations of fact ¶4.

      . Stipulations of fact ¶10.

      . Stipulations of fact ¶12.

      . Stipulations of fact ¶¶5, 7.

      . Stipulations of fact ¶7.

      . Stipulations of fact ¶7.

      . Stipulations offactfll.

      . Stipulations of fact ¶13.

      . Stipulations of fact ¶7.

      . Stipulations of fact ¶7.

      . Stipulations of fact ¶ 11.

      . Stipulations of fact ¶13.

      . Stipulations of fact ¶7.

      . Stipulations of fact ¶7.

      . Stipulations of fact ¶11.

      . Stipulations of factfl3.

      . Stipulations of fact ¶7.

      . Stipulations of factf7.

      . Stipulations of fact ¶11.

      . Stipulations offacl^[13.

      . Stipulations of factf7.

      . Stipulations of fact ¶7.

      . Stipulations of fact ¶11.

      . Stipulations of fact ¶ 13.

      . Stipulations of fact ¶7.

      . Stipulations of fact ¶7.

      . Stipulations of fact ¶ 11.

      . Stipulations of factfl3.

      . See Act of August 9,1955,P.L. 323. §210, as amended, 16P.S. §210.

      . Stipulations of factfl5.

      . Stipulations of factfl5.

      . Stipulations of fact'll 5.

      . N.T. 146.

      . See pis.’ exhibit 3, hr’g., June 24,2004 and June 28,2004 (pis.7 def.’s exhibit_); pis.’ exhibit 5; pis.’ exhibit 6.

      . N.T. 145-48; pis.’ exhibit 3; pis.’ exhibit 5; pis.’ exhibit 6.

      . N.T. 146-47.

      . N.T. 147.

      . N.T. 140.

      . N.T. 27-28, 99.

      . N.T. 204-205, 221.

      . N.T. 48.

      . N.T. 48.

      . N.T. 140.

      . N.T. 140.

      . N.T. 213.

      . N.T. 213.

      . See N.T. 213.

      . N.T. 140-41.

      . N.T. 140.

      . N.T. 42, 141.

      . N.T. 42, 141-42.

      . Sec N.T. 42-43, 114; see also, def.’s exhibit 1.

      . See N.T. 147, 156-57.

      . N.T. 110, 114; pis.’ exhibit 35.

      . N.T. 114-15.

      . N.T. 156-57.

      . See N.T. 157-58.

      . N.T. 116-17.

      . N.T. 117-18.

      . N.T. 118-19.

      . N.T. 119.

      . N.T. 119.

      . N.T. 131.

      . N.T. 131-35.

      . See N.T. 126, 135.

      . N.T. 126-27.

      . N.T. 150-51, 170-71.

      . N.T. 150-51, 170-71.

      . N.T. 55.

      . See N.T. 55, 144-45, 207. The lack of any damage to parts of the tower facility during disassembly is evidenced by the tower industry’s occasional “drop and swap” practice, in which one tower is taken down at a site, only to be replaced at the site by another — usually taller- — tower. N.T. 144-45.

      . N.T. 55.

      . N.T. 139.

      . N.T. 138.

      . N.T. 120, 156.

      . N.T. 120, 139.

      . N.T. 60-62, 196.

      . N.T. 64.

      . N.T. 144.

      . N.T. 144-45.

      . N.T. 159.

      . N.T. 196-97.

      . See N.T. 27-28, 74, 103, 109-10, 215, 226.

      . N.T. 27-28, 74.

      . N.T. 103, 109-10.

      . N.T. 215.

      . N.T. 226.

      . N.T. 230.

      . N.T. 234-35; pis.’ exhibit 9.


author: SAIDIS, Member,

text:
    In the Matter of Valentino

      Disciplinary Board Docket no. 26 D.B. 1997.
    April 27, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

SAIDIS, Member,

— Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

Petitioner, Philip A. Valentino Jr., filed a petition for reinstatement to the bar of Pennsylvania on September 17, 2002. By opinion of the Supreme Court of Pennsylvania decided May 20, 1999, petitioner was suspended from the practice of law for a period of five years retroactive to February 24, 1997.

A reinstatement hearing was held on April 22, 2003, before Hearing Committee 1.01 comprised of Chair Alice Beck Dubow, Esquire, and Members Stewart L. Cohen, Esquire, and Leon W. Tucker, Esquire. Petitioner was represented by James C. Schwartzman, Esquire. Petitioner offered his own testimony and nine witnesses. The reinstatement petition was made part of the record.

Following the submission of briefs by the parties, the Hearing Committee filed a report on January 12, 2004, and recommended that the petition for reinstatement be denied.

On February 2,2004, petitioner filed a brief on exceptions and a request for oral argument before a three-member panel of the Disciplinary Board.

On February 19, 2004, Office of Disciplinary Counsel filed a brief opposing exceptions.

On February 25,2004, petitioner withdrew his request for oral argument.

This matter was adjudicated by the Disciplinary Board at the meeting of March 10, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner is Philip A. Valentino Jr. He was born in 1957 and was admitted to the practice of law in Pennsylvania in 1983. His current address is 1064 Temperance Lane, Richboro, PA 18954.

(2) Petitioner was suspended from the practice of law for five years, retroactive to February 24,1997, by opinion of the Supreme Court of Pennsylvania entered May 20, 1999.

(3) Between 1987 and 1996, petitioner engaged in several instances of fraud by submitting medical records, in several arbitration matters, that petitioner knew to be fraudulent. The medical records showed treatment on dates when no treatment had occurred. The petitioner settled the cases with the insurance carriers who made settlement payments to the petitioner.

(4) Of the five client matters, three clients had not sought immediate medical treatment and the fraudulent medical records were intended to make it appear that treatment had been sought promptly after the accident.

(5) These three instances were cases which petitioner voluntarily made known to the United States Attorney’s office.

(6) The fourth case involved the petitioner’s mother who was the plaintiff in a personal injury action for slip and fall. Mrs. Valentino was a client whose medical bills were fraudulently submitted.

(7) Afifth case, which formed the basis of petitioner’s conviction, involved a personal injury action by his wife where she recovered a settlement check in the amount of $3,000.

(8) In 1996, petitioner’s mother was subpoenaed to testify about her medical care that was the subject of the fraudulent documents.

(9) Petitioner, acting as his mother’s attorney, advised his mother to give false testimony to the grand jury, and she did so.

(10) Realizing the seriousness of the situation, petitioner immediately contacted his own attorney and had the incorrect testimony corrected. To protect his mother from a perjury prosecution, petitioner admitted his involvement in the scheme and volunteered information about other cases in which plaintiff submitted false medical bills.

(11) In November 1996, petitioner entered a plea of guilty to one count of mail fraud.

(12) Petitioner was sentenced to three years of probation, with the first 12 months on home confinement, and was ordered to pay restitution in the amount of $21,800 and a fine of $5,000. At the time of sentencing, Judge Robert Kelly of the United States District Court for the Eastern District of Pennsylvania, ordered a downward departure from the sentencing guidelines. Judge Kelly also noted that petitioner’s subordination of perjury was a panic reaction, which was corrected.

(13) Petitioner filed a joint petition with the Office of Disciplinary Counsel requesting that he be placed on temporary suspension on January 20,1997.

(14) By order dated May 20,1999, the Supreme Court imposed a five-year suspension on petitioner, retroactive to February 24,1997. In its opinion the court stated: “We reach this conclusion based on the fact that respondent retained the moral sense to immediately perceive his serious wrongdoing and bring his malfeasance to the attention of the court. He not only cooperated with the authorities, but also volunteered information regarding additional impropriety. This in no way excuses respondent’s serious disciplinary violations but it demonstrates that he recognizes the grievous nature of his conduct and accepts responsibility for his actions. Moreover, we note that respondent has no prior disciplinary history and presented substantial evidence of good character.”

(15) Petitioner paid his restitution in full and served his probation without incident.

(16) During the period of his suspension, petitioner managed and performed with his band, The Exceptions, who play on average of two to three times per week in the winter and four or five times per week during the summer.

(17) The band played approximately 12 to 15 charitable events each year during petitioner’s suspension, including events for the Variety Club, Children’s Miracle Network, Crime Night Out in Sea Isle City, NJ, Crime Night Out in Philadelphia and Camden, NJ, and Children’s Hospital of Philadelphia.

(18) At each of these charitable events, the band waived its nightly fee of $5,000 to $10,000.

(19) Petitioner did not practice law or hold himself out as an attorney during the period of his suspension.

(20) Petitioner has demonstrated sincere remorse for his misconduct. He has recognized his wrongdoing and accepted full responsibility.

(21) Petitioner has learned from his experience and understands what it means to let down his family, friends and colleagues in the law and he is determined not to repeat his mistakes.

(22) Petitioner has maintained the requisite legal knowledge for reinstatement by attending the required number of continuing legal education courses mandated for reinstatement and by reading various legal journals, such as the Legal Intelligencer.

(23) If reinstated, petitioner intends to practice entertainment law with some areas of a general practice, such as real estate and civil litigation.

(24) Nine character witnesses testified on petitioner’s behalf. These witnesses testified that petitioner had a very good reputation for being a truthful, honest and law-abiding person and his misconduct was an aberration.

III. CONCLUSIONS OF LAW

(1) Petitioner has the moral qualifications, competency and learning in the law required to practice law in Pennsylvania.

(2) Petitioner’s resumption of the practice of law will be neither detrimental to the integrity and standing of the bar or the administration of justice, nor subversive of the public interest.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for reinstatement filed by Philip A. Valentino Jr. By opinion of the Supreme Court of Pennsylvania decided May 20, 1999, petitioner was suspended from the practice of law for a period of five years retroactive to February 24, 1997.

Pursuant to Rule 218(a), Pa.R.D.E., an attorney who is suspended for a period exceeding one year may not resume the practice of law until reinstated by the Supreme Court of Pennsylvania. In order for petitioner to gain reinstatement, he has the burden of proving by clear and convincing evidence that he possesses the moral qualifications, competency and learning in the law required for admission to practice law in this Commonwealth. In addition, petitioner has the burden of demonstrating that his resumption of the practice of law will not be detrimental to the integrity and standing of the bar or administration of justice, nor subversive of the public interest. Rule 218(c)(3)(i), Pa.R.D.E.

A reinstatement proceeding is a searching inquiry into a lawyer’s present professional and moral fitness to resume the practice of law. The object of concern is not solely the transgressions which gave rise to the lawyer’s suspension, but rather the nature and extent of the rehabilitative efforts the lawyer has made since the time the sanction was imposed, and the degree of success achieved in the rehabilitative process. Philadelphia Newspapers Inc. v. Disciplinary Board of the Supreme Court, 468 Pa. 382, 363 A.2d 779 (1976).

Petitioner was convicted of one count of mail fraud arising from his participation in several instances of submitting false and fraudulent medical bills and reports to insurance companies. Petitioner was placed on probation for three years and ordered to make restitution of $21,800 and pay a fine of $5,000. Petitioner completed his probation and paid the restitution and fine in full.

During his suspension, petitioner was the manager of a band called The Exceptions. He was also a performer in this group. Petitioner has been a member of the band for 26 years and has managed it for approximately 24 years. He is the sole proprietor of the band. Subsequent to his suspension, respondent transformed his law office into an entertainment center called Valentino Entertainment in Bensalem, Pennsylvania. This center handles the booking of numerous bands, holds rehearsals, and does auditions for private events.

During the period of petitioner’s suspension, his band played at least 12 to 15 charitable events per year and waived its nightly fee of $5,000 to $10,000 to support the charity. Some of the charities included Children’s Miracle Network and Children’s Hospital of Philadelphia, as well as Crime Night Out in Philadelphia and Camden. Despite this evidence, the Hearing Committee determined that petitioner did not engage in meaningful community service during his suspension. The record supports a finding that petitioner did engage in meaningful community service. The record is clear that petitioner’s band performed at 12 to 15 charitable events per year, for such worthy causes as those listed above. While the Supreme Court has emphasized the need for meaningful community service as a means of rehabilitation, there are no strict guidelines as to what actions a petitioner must engage in to constitute such meaningful service. In the Matter of Perrone, 565 Pa. 563, 777 A.2d 413 (2001). Certainly petitioner’s donation of time and money via his band to worthy causes 12 to 15 times per year qualifies as meaningful community service.

The Hearing Committee also found that petitioner did not understand the harm his misconduct caused to other people and the judicial system, and did not show sufficient remorse. The record does not support this finding. Petitioner admitted that his actions were wrong and he made assurances to the committee that those actions would not be repeated. Petitioner expressed embarrassment and humiliation for his actions, and recognition that he lost the trust and confidence of community members by his actions. Petitioner expressed remorse at his disciplinary hearing in 1997. With regard to the original imposition of discipline, the Supreme Court of Pennsylvania acknowledged in the opinion of May 20, 1999, that petitioner demonstrated recognition of his wrongdoing and accepted responsibility for it by cooperating with the authorities, volunteering information regarding additional impropriety, and immediately bringing to the attention of the court his subornation of perjury. Petitioner has presented persuasive evidence that he continues to be remorseful today.

It should be noted that the petitioner was not disbarred, but received a five-year suspension.

Nine character witnesses testified as to petitioner’s good reputation for honesty and integrity. These witnesses believed petitioner’s misconduct to be an aberration such that his re-admission to the bar would not be detrimental.

Petitioner has presented conclusive evidence that he has rehabilitated himself. Petitioner has met with clear and convincing evidence his burden of proving that he is morally qualified, competent and learned in the law. Furthermore, petitioner has demonstrated that his re-admission will not be detrimental to the bar or the public. For these reasons the board recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that petitioner, Philip A. Valentino Jr., be reinstated to the practice of law.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

Board Member Raspanti recused in this matter and Board Member Brown did not participate in the March 10, 2004 adjudication.

ORDER

And now, July 29, 2004, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated April 27, 2004, the petition for reinstatement is granted.

Pursuant to Rule 208(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.

Mr. Justice Saylor dissents.